Filed 7/2/13 P. v. Gray CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G045645

         v.                                                            (Super. Ct. No. 06NF2588)

DARRELL MARTIN GRAY,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Thompson, Judge. Affirmed.
                   Michael Clough, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Stacy
A. Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
              Darrell Martin Gray appeals from a judgment after a jury convicted him of
special circumstances first degree murder, shooting at an occupied motor vehicle,
conspiracy to commit murder, three counts of premeditated and deliberate attempted
murder, and street terrorism, and found true he committed the offenses for the benefit of a
criminal street gang, and he was a gang member who vicariously discharged a firearm
and caused great bodily injury. Gray argues his defense counsel, who has since been
disbarred, was ineffective and the prosecutor committed multiple instances of
misconduct. In our prior nonpublished opinion, People v. Gray (Feb. 25, 2013,
G045645) (Gray I), we concluded Gray’s trial counsel was inadequate and the prosecutor
committed one instance of misconduct, but we also concluded Gray was not prejudiced.
              Gray filed a motion to augment the record and a petition for rehearing. In
his rehearing petition, Gray argued, among other things, we erred in relying on a
transcript of Gray’s pretrial admissions to investigators because the transcript Gray’s
appellate counsel introduced into evidence at the new trial hearing did not accurately
reflect Gray’s video recorded statements. The video, however, was never introduced into
evidence or marked as an exhibit, and therefore, is not part of the record on appeal.
Consequently, we denied his motion to augment the record but granted the rehearing
petition and stayed the appeal to allow Gray time to file a petition for writ of habeas
corpus. Gray filed a request for judicial notice, which we also denied. Gray filed a
request for habeas corpus investigation fees. Instead of ruling on that motion, we ordered
the parties to brief the issue of whether Gray’s appellate counsel, the same counsel who
represented Gray during the motion for new trial proceedings, has a disqualifying conflict
of interest because he apparently inadvertently admitted into evidence at the new trial
hearing the evidence that is the subject of the discrepancy. The parties briefed that issue,
but Gray also filed a renewed motion for judicial notice and a brief indicating he will not
file a petition for writ of habeas corpus until his appeal is resolved.



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              Thus, we again conclude Gray’s defense counsel was ineffective and the
prosecutor committed one instance of misconduct but Gray was not prejudiced. We
affirm the judgment.
                                          FACTS1
              On June 30, 2006, Jennifer Gardner, her boyfriend Darnell Little,
Maxine Solomon, and Christopher Lang went to a nightclub in Gardner’s 1997 Honda
Passport. Earlier in the evening, Gardner took one-half of an “Ecstasy” pill and she
drank throughout the night. As Solomon and Lang waited outside, Darrel Gray and
Randle Hester approached Gardner and Little as they exited the club and one of the men
called Gardner a “‘bitch.’” Little approached the men. In a face to face confrontation,
Little said, “‘20’s Crip,’” Gray replied, “‘East Coast,’” and they both referred to each
other as “cuz.” The parties left the club separately, Little and his friends in Gardner’s
vehicle, and Hester and Gray in a grayish blue Dodge Magnum.
              Little drove to a nearby gas station and everyone got out. The same
Dodge Magnum pulled into the gas station, and Gray and Hester got out. Little and Gray
argued again. Gardner and Solomon got back into the vehicle. Little got in the vehicle
and said, “Let’s go.”
              Little drove onto the Interstate 5 freeway northbound. Minutes later,
Gardner heard “muffled sounds,” like gunshots, and Little swerved the vehicle into the
center divider. The vehicle came to a stop in the fast lane facing southbound, facing
oncoming traffic, with the driver’s side of the vehicle on the busy side of the freeway.
Little asked if everyone was okay, but Solomon did not respond. Little got out of the
vehicle. As Little stood on the freeway, Gardner told him that Solomon was okay. When



1            We decided Gray’s co-defendant’s appeal in People v. Hester (G041657,
Nov. 30, 2010).


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Little started to say something, either Lang or Solomon asked where Little was. Gardner
looked to where Little was standing, but he was gone.
              A truck driver traveling northbound on the freeway saw a vehicle in the
middle of the freeway. The driver had no time to avoid hitting Little who was standing
next to the vehicle. Gardner and the others got out of the vehicle and saw Little lying on
the ground about 50 feet up the freeway. Gardner ran to him and realized he was dead.
              Officer Daniel Ackerman interviewed Gardner at the scene of the incident.2
What Gardner told Ackerman was largely the same as we detail above. She stated the
altercation at the nightclub “was [a] little tiff” that “was no . . . big deal.” She said the
men were showing off. She stated Gray said, “East Coast,” but she did not know what
that was, maybe “a gang out here.” She described the argument between Little and Gray
at the gas station. Gardner said she was not wearing her eyeglasses and could not see if it
was the men in the Dodge Magnum shooting at them but she was “going off [her] gut
instinct.” Gardner said that after her vehicle came to a stop on the freeway, Little came
around to her on the “busy side” of the freeway.
              Detective Ryan Dieringer investigated the case.3 Dieringer obtained a copy
of a videotape from surveillance cameras at the nightclub, and he distributed copies to
gang officers in Los Angeles County to obtain help in identifying the suspects.
Detective Ronald Kingi called Dieringer and eventually identified one of the suspects in




2              An audio recording of the interview was played for the jury and a transcript
of the interview was admitted into evidence and is part of the record on appeal.

3             Dieringer and three other officers interviewed Gardner later the same day at
Gardner’s home. This interview was not admitted into evidence at trial, but the trial court
did consider it at the evidentiary hearing on the new trial motion. We will discuss it
below.


                                               4
the videotape as Darrell Gray based on his facial features and distinctive walk.4 In the
first photographic lineup, Gardner identified someone but she was not certain; the lineup
included a photograph of Manuel Gray (Manuel), Gray’s brother. In the second
photograph lineup, Gardner identified Gray, although she was unable to identify Hester in
another photographic lineup.
               Nine shell casings of the same caliber and manufacturer were recovered
from Gardner’s vehicle and the freeway. All the bullets were fired into the right side of
Gardner’s vehicle.
               Officers executed a search warrant at Gray’s house where they found Gray
and Gregory Shively. Officers discovered items that established Gray lived there and
indicia of gang membership. In the rear bedroom, officers found various items with
“East Coast Crips” written on them and in the same bedroom, a letter signed by Gray.
Officers later arrested Hester in a bluish gray Dodge Magnum, which belonged to his
girlfriend.5
               In July 2006, a felony complaint charged Gray with conspiracy to commit
murder (Pen. Code, § 182, subd. (a)(1), count 1),6 four counts of premeditated and
deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 2, 3, 4, & 5), and
street terrorism, East Coast Crips (§ 186.22, subd. (a), count 6). As to all but count 6, the
complaint alleged Gray committed the crimes for the benefit of a criminal street gang,
East Coast Crips (§ 186.22, subd. (b)(1)). As to counts 1, 2, 3, 4, and 5, the complaint


4             He initially identified the men as Manuel Gray and Charles Von Lewis but
soon thereafter realized he told Dieringer the wrong name; it should have been Darrell
Gray.

5             As we explain below in greater detail, Officers interviewed Gray, and Gray
identified Hester.

6              All further statutory references are to the Penal Code.


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also alleged Gray was a gang member who vicariously discharged a firearm causing great
bodily injury (§ 12022.53, subds. (d) & (e)(1)). Finally, the complaint alleged Gray
inflicted great bodily injury (§ 12022.7, subd. (a)), as to counts 1 to 4.
                 In August 2006, a first amended felony complaint added Hester as a named
defendant in counts 1 to 6. The first amended felony complaint alleged the same
enhancements against Gray. It added the following allegation against Hester—that he
was a gang member who vicariously discharged a firearm (§ 12022.53, subds. (c) &
(e)(1)).
                 In November 2006, a second amended felony complaint charged Gray and
Hester with first degree murder of Little (§ 187, subd. (a), count 1), shooting at an
occupied motor vehicle (§ 246, count 2), conspiracy to commit murder (§ 182,
subd. (a)(1), count 3), four counts of premeditated and deliberate attempted murder
(§§ 664, subd. (a), 187, subd. (a), counts 4 (Little), 5 (Gardner), 6 (Lang), and
7 (Solomon)), and street terrorism (§ 186.22, subd. (a), count 8-Gray (East Coast Crips)
& count 9-Hester (“Osage Legend Crips”)). As to count 1, the second amended felony
complaint alleged Gray and Hester committed murder during a drive-by shooting
(§ 190.2, subd. (a)(21)), and to further the activities of a criminal street gang, East Coast
Crips and Osage Legend Crips (§ 190.2, subd. (a)(22)). As to all but counts 8 and 9, the
second amended felony complaint alleged Gray and Hester committed the crimes for the
benefit of their respective criminal street gangs. (§ 186.22, subd. (b)(1)). As to counts 1,
2, 3, 4, 5, 6, and 7, the second amended felony complaint also alleged Gray was a gang
member who vicariously discharged a firearm causing great bodily injury (§ 12022.53,
subds. (d) & (e)(1)). With respect to counts 2, 3, and 4, the second amended felony
complaint also alleged Hester personally inflicted great bodily injury (§ 12022.7,
subd. (a)). Finally, the second amended felony complaint alleged Hester personally
discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)), as to
counts 1 to 7.

                                              6
              In December 2006, Gerard Lionel Garcia-Barron, a private attorney
appeared and substituted in as counsel for Gray and relieved the Alternate Defender,
Raymond Chen.
              The preliminary hearing was held in March 2007. A detective testified
Lang told him the driver’s side window was partially rolled down and “the driver of the
vehicle put a dark-colored handgun out of the vehicle and began firing.” The trial court
held Gray and Hester to answer on all charges and allegations.
              In March 2007, an information charged Gray and Hester with the same
offenses along with the special circumstances and street terrorism allegations in the
second amended felony complaint. The information however alleged Gray and Hester
were gang members who vicariously discharged a firearm causing great bodily injury
(§ 12022.53, subds. (d) & (e)(1)), as to counts 1 to 7. With respect to counts 1, 2, 3, and
4, the information also alleged Hester personally inflicted great bodily injury (§ 12022.7,
subd. (a)). Finally, the information alleged Hester personally discharged a firearm
causing great bodily injury and death (§ 12022.53, subd. (d)), as to counts 1 to 4.
              In September 2008, the operative charging document, a first amended
information charged Gray and Hester with first degree murder of Little (§ 187, subd. (a),
count 1), shooting at an occupied motor vehicle (§ 246, count 2), conspiracy to commit
murder (§ 182, subd. (a)(1), count 3), four counts of premeditated and deliberate
attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 4 (Little), 5 (Gardner),
6 (Lang), and 7 (Solomon)), and street terrorism (§ 186.22, subd. (a), count 8-Gray
(East Coast Crips) & count 9-Hester (Osage Legend Crips)). As to count 1, the amended
information alleged Gray and Hester committed murder during a drive-by shooting
(§ 190.2, subd. (a)(21)), and to further the activities of a criminal street gang, East Coast
Crips and Osage Legend Crips (§ 190.2, subd. (a)(22)). As to all but counts 8 and 9, the
amended information alleged Gray and Hester committed the crimes for the benefit of a
criminal street gang, East Coast Crips and Osage Legend Crips. (§ 186.22, subd. (b)(1)).

                                              7
As to counts 1, 2, and 4, the amended information alleged Gray was a gang member who
vicariously discharged a firearm causing great bodily injury (§ 12022.53,
subds. (d) & (e)(1)), and with respect to counts 5, 6, and 7, he was a gang member who
vicariously discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). With respect to
counts 1, 2, 3, and 4, the amended information also alleged Hester personally inflicted
great bodily injury (§ 12022.7, subd. (a)). Finally, as to counts 1, 2, and 4, the amended
information alleged Hester personally discharged a firearm causing great bodily injury
and death (§ 12022.53, subd. (d)), and with respect to counts 5, 6, and 7, he personally
discharged a firearm (§ 12022.53, subd. (c)).
              Before trial, Hester filed a motion to sever/bifurcate gang charges and
allegations from the other counts. Gray joined in the motion. The trial court denied the
motion.
              At trial in the fall of 2008, the prosecutor offered Gardner’s testimony,
which is the basis of much of the facts described above. Gardner stated she was reluctant
to testify and was scared. Gardner testified the altercation at the nightclub was “heated
but calm. You know, nose-to-nose type of conversation.” She said the Dodge Magnum
drove next to them at the gas station, the same two men got out of the car, and Little and
Gray got into a “heated argument.” She stated that when Little drove onto the freeway,
she put on her eyeglasses. She saw the blue Dodge Magnum pull alongside her vehicle
just before the shooting started. She explained that when her vehicle stopped on the
freeway, Little got out and “came around to [her] side[]” of the vehicle before he was hit.
Gardner said she was “98 to 99 percent sure” of her identification of Gray, and she
identified Gray from surveillance video from the nightclub.
              On cross-examination, Hester’s defense counsel questioned Gardner
extensively about whether she was intoxicated, whether she was wearing her eyeglasses,
whether she saw the vehicle the shots came from, and her identification of the men.
Gardner insisted that although she told Ackerman she did not have her eyeglasses on

                                             8
when she got into her vehicle, she generally puts them on when she gets into her vehicle
and she did see the Dodge Magnum. She admitted she lied to police about taking drugs
that night.
              On cross-examination, Gray’s defense counsel began by stating he would
try not to repeat what Hester’s defense counsel covered but some questions may overlap.
He questioned Gardner about whether she was intoxicated, whether she was wearing her
eyeglasses in the nightclub, the incidents at the nightclub and the gas station, her
description of the men, the shooting, and what happened after the shooting, including her
field sobriety tests and her interviews.
              Gardner admitted there was no physical violence at the nightclub. Gardner
repeated she heard Gray say “East Coast,” but when counsel asked if she heard anything
else, she replied, “There [was] a lot of ‘Crip’ going back and forth, but I don’t know if it
was [Little] or [Gray]. I just know there was a lot of gang stuff going back and forth on
[Little’s] part.” A little later she responded, “Yes,” when counsel asked whether Little
was yelling, “20 Crip.” Gardner testified she did not confront Gray and Hester at the gas
station.
              Finally, there was some confusion about where Gardner was sitting in the
vehicle while they were on the freeway and the exact circumstances of Little’s death.
Photographs of Gardner’s vehicle that were admitted into evidence show the vehicle
stopped in the fast lane facing oncoming traffic. There is no dispute Little drove onto the
freeway, and Lang sat in the front passenger seat. Gardner repeatedly testified she sat
behind Lang in the rear passenger seat. Gardner also testified Little came around to her
side of the vehicle to check on Solomon when he was hit by the truck. Gardner testified
she never told officers she sat behind Little. But she did state that when the vehicle came
to a rest, she recalled being on the “busy side” of the freeway and not the center divider
side of the freeway. But she added, “Those are not details I was paying attention to when
somebody’s killed.” When Hester’s defense counsel pointed out that if she was sitting in

                                              9
the rear passenger seat and the vehicle was facing oncoming traffic, she would be on the
center divider side of the freeway, Gardner responded, “It suggests that. But again, I
don’t remember those details.”
              The prosecutor also offered the testimony of Detective Joe Pirooz, a gang
expert. After detailing his background, training, and experience, Pirooz testified the
Rollin 20’s and East Coast were not rivals but they had committed crimes against each
other. Pirooz explained the 20’s Crips called East Coast derogatory names, such as
“Toasters” or “Cheetos.” He stated Little was a member of the criminal street gang,
“Rollin’ 20’s Crips” and he had a tattoo of the number “‘20’” on his back and the word
“‘Long Beach’” over his shoulder. He stated Lang was a member of Insane Crips
criminal street gang. Additionally, a mural with Little’s name, and the phrase
“Fucc Toasts” was admitted into evidence. Pirooz asserted this evidence was significant
because it demonstrated a rivalry between the two gangs. He opined members of
different Crip factions could associate with each other as long as there is not an ongoing
rivalry.
              Detective Eric Rose testified as the prosecutor’s gang expert against Gray.
After detailing his background, training, and experience, Rose testified concerning the
culture and habits of criminal street gangs, including East Coast. Rose explained the
importance of respect and “putting in work” to gain respect in the gang. He stated a gang
member loses respect by not participating in “missions.” He said a “hit-up” is when one
gang member asks another person what gang he is from to determine if the person is a
rival or an ally. Rose stated the person doing the “hit-up” is assuming an altercation will
result. He testified that if two members of different gangs were in the same car, then one
would expect backup from the other, especially if they are partying together. He said
gang members talk about their crimes with other gang members to gain respect.
              Rose also testified about the importance of guns in gangs. Rose stated that
if one gang member is armed with a gun generally the other gang members will know the

                                            10
gang member is armed for purposes of protection. Rose opined that if there are six gang
members, one of whom is armed, and there is an altercation, the other gang members
would know which gang member is armed for protection. Rose opined this was true even
if the gang members are from different gangs.
              Rose stated he had testified as an expert on East Coast 15 to 20 times. Rose
explained East Coast began in the late 1960s, its name derives from being on the east side
of the 110 freeway, and its common symbol is anything related to the New York
Yankees. He said there are subsets of East Coast and there are over 1,000 total members.
He stated one subset is the “Six Deuce East Coast Crips” (Six Deuce). He opined that at
the time of the offenses, East Coast was a criminal street gang.
              Rose testified he was familiar with Gray because he had been to his home
and had six to 10 prior contacts with him, including instances where Gray was with other
known East Coast gang members, most notably Shively. Rose said he reviewed a police
report that alleged Gray told another jail inmate he was a Crip. Based on his review of
the police reports in this case, his prior contacts with Gray, items recovered from Gray’s
home, and Gray’s tattoos, Rose opined Gray was an active participant in East Coast at the
time of the offenses. When the prosecutor asked Rose whether the exchange of gang
names in this case influenced his opinion “[Gray’s] an active participant[]” Rose stated:
“Sure. What he’s basically talking about, in case you guys aren’t aware, there was an
altercation between . . . Gray and another individual from a separate gang in which
they’re both uttering their gang name back and forth. I believe there’s many different
times where they go back and forth. Him saying ‘East Coast.’ The other individual, I
believe, something to the effect ‘Rollin 20’s,’ or something to that effect. [¶] You
wouldn’t utter a name of a street gang unless you belong to that particular street gang.
There’s -- especially a street gang as large as East Coast Crips. There’s a lot of different
repercussions that could lead to assault all the way up to murder, for claiming a certain



                                             11
gang that you’re not actually a part of.” Rose stated “Crip” gang members refer to each
other as “Cuz.”
              Based on a hypothetical question mirroring the facts of this case, Rose
testified the crimes were committed for the benefit of the criminal street gang, East Coast,
because people will know which gang did the shooting and this would benefit the gang
by increasing its reputation for committing violence. He also said it promotes the
criminal street gang because if there was not already a rivalry between the two gangs,
there would be one as a result of the shooting, and this would promote both gangs. It also
benefits the gang by creating a rivalry or war between the two gangs. By putting
“Fucc Toasts” on a mural outside Little’s house, Rose stated these individuals all know
who did the shooting and that will increase respect for the shooter and the gangs.
              On cross-examination, Hester’s defense counsel questioned Rose about
Six Deuce tattoos and territory. On cross-examination, Gray’s defense counsel
questioned Rose about his background and training, gang culture, and his prior contacts
with Gray. Defense counsel established Gray’s brother, Manuel, shared a bedroom with
Gray and that Rose had seen Manuel with known East Coast gang members, including
Shively.
              Officer Daniel Milchovich also testified as a gang expert. After detailing
his background, training, and experience, Milchovich testified regarding the culture and
habits of criminal street gangs, including Osage Legend. Based on Hester’s admissions
and tattoos, Milchovich’s opined Hester was an active member of Osage Legend on the
night of the shooting. Based on a hypothetical question mirroring the facts of this case,
Milchovich opined the crimes were committed for the benefit of, at the direction of, or in
association with a criminal street gang, specifically Osage Legend and East Coast.
Milchovich stated an Osage Legend gang member associated with an East Coast gang
member to commit a crime. He explained commission of the crime would benefit the
street gangs because in gang culture the failure to resolve a conflict demonstrates

                                            12
weakness, and showing weakness leads to being disrespected in the gang, which is fatal.
When the prosecutor asked Milchovich whether the offenses benefitted Osage Legend
when the Osage Legend gang member was not involved in the verbal confrontation, he
responded, “Absolutely.” He opined, “Again, it’s the whole notion of backup, of respect.
That gang member being there, that Osage Legends gang member being there with an
East Coast Crip, is going to bolster their chances of gaining more respect. That [Osage]
Legends Crip gang member is going to act as backup for that East Coast Crip gang
member in your hypothetical. [¶] Therefore, if, if he doesn’t -- if he doesn’t participate,
if he doesn’t get involved in it, that brings upon that disrespect, that weakness.”
Milchovich opined the offenses would bring respect to the gang member and the gang
because the East Coast gang member committed the crime while the Osage Legend gang
member provided backup. The parties stipulated East Coast and Osage Legends were
criminal street gangs as statutorily defined.
              Finally, the jury heard testimony Gardner’s blood alcohol level was .13 at
6:00 a.m. There was also testimony that it was possible a person with a .13 blood alcohol
level at 6:00 a.m. would have a .21 blood alcohol level at 2:00 a.m.
              Gray rested on the state of the evidence. Before the trial court instructed
the jury, on the prosecutor’s motion, the trial court dismissed the following enhancements
against Hester: he personally inflicted great bodily injury (§ 12022.7, subd. (a)), as to
counts 1, 2, 3, and 4; he personally discharged a firearm causing great bodily injury and
death (§ 12022.53, subd. (d)), with respect to counts 1, 2, 3, and 4; and he personally
discharged a firearm (§ 12022.53, subd. (c)), as to counts 5, 6, and 7.
              During closing argument, as relevant here, the prosecutor stated:
“Remember, I told you during voir dire, hey, you have someone who wants to commit a
bank robbery, he needs other participants. He needs someone to drive him there. The
person who drives him there and drops him off and waits for him to commit the robbery
is guilty of robbery. They have aided and abetted that robber in committing the crime;

                                                13
right? [¶] Someone who loans them the car, doesn’t even drive them there, just says ‘use
my car,’ could commit that robbery. Guilty of robbery. That’s how the law works.
Doesn’t matter who did what in this case. Someone shot, someone drove, both guilty.
Aiding and abetting, actual perpetrator of the crime. So, as you go through all this,
remember that. [¶] Don’t get overly concerned with the roles, because you know
someone drove and you know someone shot. And, you know these two were working in
connection with each other, whoever it was. Doesn’t matter for any of these counts or
enhancements which role someone played. [¶] So, as we go through this, each count,
I’m just going to say they’re both guilty. I’m not going to go through each time why
someone was an aider and abettor and someone was the actual perpetrator. It doesn’t
matter what their role was. This case is not about who was there that night, and not
whether the crimes are committed. It’s only about who was there, not whether the crimes
were committed. And you’re going to see that as we go through this. [¶] Role,
defendant Gray started the incident, called out his gang name, continued argument, and is
the likely shooter; right? That seems like the reasonable inference you can draw from all
this. [¶] Hester, he’s the backup there, likely the driver. He’s the one who owns this car.
Doesn’t matter, but that’s probably the likely scenario. [¶] You’re going to see as we go
through all these elements, everything flows from count 1. Once you decode that count,
all the other counts will follow easily. [¶] . . . [¶] All right. . . . Aiding and abetting. I
told you two theories of liability. Aiding and abetting, one, the perpetrator committed the
crime. Someone committed the crime, right? The defendant, the aider and abettor, knew
the perpetrator intended to commit the crime. Defendant intended to aid and abet the
perpetrator. I have the intent to actually help you and defendant’s words, or conduct did,
in fact, aid and abet the perpetrator.”
               Hester’s defense counsel argued the issue in this case was one of identity as
no one identified Hester at the nightclub, at the gas station, or in the vehicle. When it
was Gray’s defense counsel’s turn, he characterized the case as a “‘whodunit.’” Defense

                                               14
counsel asked whether the prosecutor had proven beyond a reasonable doubt Gray was at
the nightclub, at the gas station, or in the vehicle. He argued the quality of the video
surveillance was poor and Gardner’s identification was untrustworthy. He repeatedly
claimed there was no evidence Gray was at the nightclub or the gas station, or in the
Dodge Magnum.
               In rebuttal, the prosecutor stated: “And, there’s no explanation why he has
amongst those letters, amongst those letters in his bedroom, East Coast gang writing.
Six Deuce gang writing in those same letters in his bedroom. [¶] . . . [¶] What
[Garcia-Barron] never told you, what the explanation was for [Gray] saying that he was a
Crip, in jail, after the crime. Kind of significant, that after the crime, in jail, he’s telling
people in jail that he’s a Crip. No explanation for that.”
               During deliberations, the jury requested Gardner’s and Rose’s testimony be
read back. On October 10, 2008, with the exception of count 4, the jury convicted Gray
of all counts and found true all enhancements.
               Less than two weeks later, Gray submitted a handwritten note requesting a
new attorney. On January 23, 2009, the trial court relieved trial attorney, Garcia-Barron,
as counsel of record and replaced him with Michael Clough, the same attorney who was
later appointed to represent him in this appeal. Upon Gray’s motion, the trial court
ordered Garcia-Barron to transfer the file to Clough, which he eventually did.
               In July 2009, the prosecutor sent Clough a letter stating Gardner received
payments for moving expenses and incidentals from the California Witness Relocation
and Protection Program. The letter explained Gardner received one payment before trial
in the amount of $3,875 and one payment after trial in the amount of $2,625 for a total of
$6,500.
               Gray filed a motion to compel discovery, which the prosecutor initially
opposed. The parties ultimately agreed on the discovery request.



                                               15
              Gray filed a motion for discovery of Rose’s confidential police officer
records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The
prosecutor opposed that motion, and Gray replied. The City of Los Angeles agreed to
turn over the requested records and after an in camera review, the trial court ordered
defense counsel be provided with names and contact information of people who had filed
complaints against Rose.
              In February 2010, Gray filed a motion for new trial on three grounds:
(1) insufficient evidence supports the conclusion Gray was the shooter and his
convictions on counts 1 to 7; (2) prosecutorial misconduct because the prosecutor failed
to disclose relocation payments to Gardner; and (3) ineffective assistance of counsel
based on numerous grounds, including counsel failed to investigate and present a
meritorious defense; counsel failed to move to sever his trial from Hester’s; counsel
failed to object to Gardner’s direct testimony and effectively cross-examine her; counsel
failed to challenge Rose’s qualifications, object to his prejudicial testimony, and present a
sociologist to testify concerning the unreliability of gang expert testimony; and counsel
failed to object to the prosecutor’s misconduct during closing argument when he
misstated the law, offered a factual theory he knew to be false, and failed to correct false
testimony. The prosecutor opposed the motion. In opposition, the prosecutor conceded
he should have disclosed to defense counsel the district attorney’s office gave Gardner
witness relocation payments but argued the materiality of the evidence was low and its
impeachment value weak. Gray replied.
              In September 2010, the trial court ruled Gray made a sufficient threshold
showing warranting an evidentiary hearing on his ineffective assistance of counsel
contentions; Gray’s other claims would be addressed later. A briefing schedule on the
scope of the evidentiary hearing was set, as were hearing dates.




                                             16
              Gray and the prosecutor filed supplemental briefs regarding the scope of the
evidentiary hearing. A hearing was held concerning the scope of the evidentiary hearing.
The trial court conducted an evidentiary hearing in December 2010.7
              Garcia-Barron testified at the hearing and a banker’s box containing his
case file was present in the courtroom. He testified the box contained his entire file but it
did not contain any case notes or the preliminary hearing transcript. He did not
specifically recall taking any notes other than during voir dire. He explained he does not
personally interview witnesses. Instead, he usually hires an investigator to interview
witnesses, but he did not hire an investigator in this case. He claimed to have used the
witness statements from the discovery, but Garcia-Barron admitted he did not review all
the discovery. Before the preliminary hearing, he did not “do any independent
interviewing of witnesses or any independent investigation.” When questioned about
11 of the CD envelopes, six of the CD envelopes were still sealed closed. He did not
show Gray the surveillance videos before trial. He did not make any discovery requests
from the prosecutor for additional video surveillance tape. And Garcia-Barron admitted
he did not pick up at least two items of discovery from the district attorney’s office.
              Garcia-Barron did not remember much about the case or his preparation for
the case. He did not file any motions. Although he remembered Gray’s defense was
identification, he did not remember what steps he took to defend against the charges and
he did not recall whether Gray told him he was the man in the video surveillance from the
nightclub. He knew that in a recorded interview Gray admitted to officers he was at the
nightclub, but he thought the video surveillance was of poor quality. He did nothing to
follow up though. He did not present an affirmative defense because he did not feel the


7             By this time, the California State Bar had placed Garcia-Barron on inactive
status. On January 29, 2011, Garcia-Barron was disbarred for 42 separate violations
occurring from January 2007 to about September 2009. Trial in this case occurred in the
Fall of 2008.

                                             17
prosecutor met its evidentiary burden. Garcia-Barron never heard or saw any evidence
Gray was the shooter. On cross-examination, Garcia-Barron testified repeatedly that
Gray declined to testify against Hester because he feared physical retaliation.
              Jack Earley, a criminal defense specialist, testified on the standards of
competent defense counsel. Earley explained he reviewed the transcript of the
proceedings in the case and the relevant documents and evidence. He explained defense
counsel would need to review the discovery, talk with the client, hire an investigator,
interview witnesses, and because there was a co-defendant, meet and confer with
co-counsel. Earley testified identification was not the only issue in the case. He
explained the major issue in the case was who was the shooter and who was the aider and
abettor and this raised “major intent issues.” Earley opined that any reasonably
competent defense counsel would object to expert opinion testimony based on a police
report where a defendant admitted his gang membership. Earley stated that depending on
the circumstances, defense counsel should have objected to the prosecutor’s last minute
change of theory regarding who was the shooter. He also opined that based on the
evidence he reviewed, a reasonably competent defense counsel may decide to argue his
co-defendant was the shooter. He opined an identification defense was not a viable
defense for Gray in this case.
              Chen, from the Alternate Defender’s office, testified that before
Garcia-Barron substituted in for him, he reviewed the police reports, witness statements,
and surveillance videos. He did not believe identification was a viable defense based on
his preliminary review. Chen stated he discussed a possible plea agreement with Gray,
but Gray was “very concerned” about testifying against Hester because he feared
“physical retribution.”
              Gray testified he told Garcia-Barron that he was afraid to testify but
Garcia-Barron never discussed with him the potential effect of testifying or his potential
defenses. Gray stated he told Garcia-Barron that he was at the nightclub. Gray said

                                             18
Garcia-Barron never discussed a defense theory with him, his post-incident statements,
trial strategy, or possible witnesses. Gray testified he read Lang’s statement and thought
his testimony would be beneficial but without any explanation, Garcia-Barron told Gray
that he would not call Lang to testify. On cross-examination, Gray said that while they
were at the gas station, Gardner threw her shoe at Hester’s car, and Hester told Gardner to
“‘Get the fuck away from my car.’” Gray admitted that during the trial he never told
Garcia-Barron he wanted to present a different defense and he never told the trial judge
he wanted to testify. Gray added there were “consequences” when you testify against
“known gang members.” On redirect examination, Gray testified that when they were on
the freeway, the other car’s driver was driving “in a road-rage-type manner” and Hester
retrieved a gun, rolled down the window, and fired the gun out of the car while Gray sat
silently.
              The trial court admitted into evidence declarations supporting Gray’s
assertion he was not an active participant of East Coast at the time of the offenses. The
court also admitted into evidence declarations from Shively and a friend’s mother
indicating Shively was not a member or associate of East Coast.
              The court also admitted into evidence interviews with Gardner, Lang,
Solomon, and Gray.
              Dieringer and three other detectives interviewed Gardner after Ackerman
interviewed her. Gardner said they were leaving the nightclub when two guys initially
tried to talk to her and then “started yelling out, . . . [fuck you] guys East Coast.”
Gardner stated Little said “something like those are our girls, stop.” She said Little said,
“cuz,” and the men replied, “East Coast.” Gardner claimed Little did not make any gang
challenges “this time,” but she did say “Cuz means you’re a Crip.” Gardner stated they
went to the gas station, parked, and got out when the same men in the same car drove
next to them and rolled down their windows. Gardner said Little told them to get back
into the vehicle and she did not “recall them saying anything[]” and “[she] didn’t hear the

                                              19
guys saying anything” because Little told her to get into the vehicle. She did not claim
the men got out of the car or said anything to them. Gardner explained they drove onto
the freeway and “out of nowhere” the same car was next to them and they were shooting
at them. Gardner admitted she did not have her glasses on but she is nearsighted. When
Gardner again stated Little said, “cuz,” an officer stated that is because “he’s affiliated.”
Gardner replied, “Yeah.” Gardner did not think there were any other gang challenges,
but she was walking away.
               During his interview, Lang told the officer that he and Solomon went
outside to wait because Little and Gardner wanted to dance to one more song. Lang said
that when he went back inside, Little was arguing with someone because he disrespected
Gardner. Lang stated he did not know the entire story of what happened. Lang did not
see their faces. When asked if he heard any gang challenges, Lang replied, “I didn’t
know nothing about it.” Lang told the officer, “The driver’s side rolled down his
window[]” and “[t]hen they start[ed] shooting.” Later, he stated, “And then the driver
just let down his window just a little, so, he [could] stick the gun out like halfway and
start shooting.” He said, “Before I could even tell everybody I see him just . . . stick a
gun out the window” and he fired the gun. He insisted the gun was sticking out of the
driver’s side window. With regard to the seating arrangements in the car, Lang told the
officer Little drove to the gas station and then onto the freeway. Lang said he was in the
passenger seat, Solomon sat behind him in the rear passenger seat, and Gardner sat
behind Little in the rear driver’s side seat. Lang initially claimed Little got out of the
vehicle to make sure everyone was okay and the truck hit him. Later, he stated when the
vehicle came to a stop, Little and Gardner switched spots and when Gardner could not
start the car, Little got out of the rear driver’s side seat and the truck hit him.
               In Solomon’s first interview, she told the officer that Lang was in the front
passenger seat, she sat behind Lang in the rear passenger side seat, and Gardner was in
the rear driver’s side seat. She gave a slightly different version of what happened after

                                               20
the vehicle came to a stop on the freeway. She said everyone got out and Gardner got
into the front seat and Little sat behind her in the rear driver’s side seat. She stated that
when Gardner could not start the car, Little got out of the vehicle and the truck hit him.
In Solomon’s second interview, she said Gardner drove to the gas station but Little drove
from the gas station onto the freeway. She explained that when the vehicle came to a
stop on the freeway, Little and Gardner switched places and when Gardner could not start
the vehicle, Little got out and the truck hit him. The officer characterized Solomon’s
version of the story as “completely different” from Gardner’s. In both interviews,
Solomon said she was sitting in the vehicle while Lang walked back into the nightclub to
get Little and Gardner.
              During his interview, Gray initially denied being at the nightclub but
eventually admitted he was there and he was a passenger in the vehicle. Gray said he
fired “a couple[]” shots but later said the driver was the shooter and he did not touch the
gun. Gray eventually told officers that Hester was the driver.8
              The trial court denied Gray’s request to call Rose as a witness. After the
parties rested, a briefing schedule was set. Gray and the prosecutor filed post-evidentiary
hearing briefs.
              In June 2011, the trial court issued its tentative decision. At the hearing on
the motion for a new trial, the trial court indicated it read and considered the substantial
briefing, and the court heard counsel’s argument. The trial court denied Gray’s new trial
motion, issuing an exhaustive 57-page final order that superseded the court’s tentative
decision.




8             Defense counsel at the new trial hearing offered into evidence the transcript
of Gray’s interview with the Buena Park Police Department. If a compact disc (CD) or
audio recording of an interview is available, the CD or the tape is the best evidence of the
interview, not the transcript of the CD or tape. (Evid. Code, §§ 1520-1523.)

                                              21
              After a detailed discussion of the evidence, the trial court concluded
sufficient evidence supported each of Gray’s convictions and the related enhancements.
The court discussed each offense and detailed the evidence that supported each count and
the enhancements. The court stated: “[S]ufficient, credible evidence supports a
reasonable conclusion Gray and his crime partner pursued the victims onto a freeway
where Gray intentionally fired multiple gun shots from close range at a moving vehicle
driven by Little to resolve an earlier gang related verbal altercation between the two men.
Gray’s actions ultimately led to Little’s death. The evidence supports the jury’s verdict
finding Gray guilty of first degree murder.” The court characterized “[t]he prosecution’s
case against Gray [as] strong.”
              With respect to the alleged prosecutorial misconduct, the trial court
explained that it was not until after trial that Gray learned Gardner received relocation
payments ($3,875 before her testimony and $2,625 after her testimony), and that her
testimony was significantly different than her prior statements. The court concluded that
although the prosecution should have disclosed the payments before trial (as the
prosecutor conceded), Gray was not prejudiced because “there is no reasonable
probability the outcome of the trial would have been different had the information . . .
been timely disclosed to the defense before trial.” The court then cited to all the evidence
supporting Gray’s convictions.
              As to the other alleged instances of prosecutorial misconduct, the court
explained the prosecutor did not have a duty to correct his own witness’s testimony when
it was explored at length on cross-examination and readily apparent to the jury. The
court also stated the prosecutor did not misstate the law when he argued it did not matter
what role each defendant played in committing the offenses. The court opined the
prosecutor’s argument properly summarized the law and asked the jury to convict Gray
based on reasonable inferences derived from the evidence. The court concluded that in
any event, Gray was not prejudiced because the evidence against him was “strong” and

                                             22
the court again detailed the evidence. Finally, the court stated the prosecutor did not
commit misconduct in presenting a theory not supported by the evidence. The court
noted the evidence at trial was inclusive as to who drove the car and as to who fired the
gun. The court reasoned there was substantial circumstantial evidence from which the
jury could reasonably conclude Gray was the shooter. The court concluded the
prosecutor’s charging decision did not establish he changed his theory of the case in bad
faith.
              Finally, the trial court addressed what was the subject of the evidentiary
hearing, Gray’s assertion Garcia-Barron provided ineffective, prejudicial representation,
which the court characterized as “a close call.” The court stated Garcia-Barron did not
hire an investigator, did not review all the discovery, did not interview any witnesses,
produced little work product, and could not recall what steps he took to defend Gray.
The court said Garcia-Barron did not file any motions and made few objections during
trial. The court explained that although Garcia-Barron’s lack of pretrial preparation was
disturbing, the court could not presume Gray was prejudiced (see U.S. v. Cronic (1984)
466 U.S. 648, 658), because at the time of trial Garcia-Barron was an active attorney who
gave opening and closing statements, cross-examined witnesses, and actively participated
in Gray’s defense. The court then addressed each of Gray’s claims.
              First, Garcia-Barron’s pretrial preparation was deficient and his decision to
proceed with an identification defense was unreasonable because both Gardner’s and
Kingi’s identification of Gray were strong. The court concluded, however, Gray was not
prejudiced because he was not deprived of a potentially meritorious defense. The court
reasoned there were too many pitfalls associated with offering a defense that Hester was
the shooter and Gray the unwitting bystander.
              Second, the court explained that based on Garcia-Barron’s deficient pretrial
preparation, it could not conclude his decision not to move for severance was a
reasonable tactical decision based on adequate investigation. The court concluded,

                                            23
however, Gray was not prejudiced because the court would have denied the motion, and
even if the court would have granted the motion, Gray’s credibility would have been
damaged by his prior inconsistent statements.
              Third, the court concluded Gray did not establish Garcia-Barron’s failure to
object to leading questions was deficient, and in any event, Gray was not prejudiced
because the prosecutor would have been able to obtain the same testimony from
nonleading questions. The court noted that Gardner was cross-examined extensively
about her alcohol and drug consumption, whether she was wearing her prescription
eyeglasses, where she was sitting in the vehicle, her identification of the defendants and
the vehicle, and the confrontation at the nightclub.
              Fourth, the court noted Garcia-Barron did cross-examine Gardner on some
of the topics Gray complains about. The court opined Garcia-Barron’s cross-examination
of Gardner could have been more thorough but it tracked Hester’s defense counsel’s
cross-examination of Gardner on many of the relevant issues and Garcia-Barron’s
decision to limit his cross-examination was reasonable. The court added any testimony
by Gardner about other witnesses’ testimony would have been inadmissible. The court
added, however, that based on Garcia-Barron’s deficient pretrial preparation, his decision
not to cross-examine Gardner on her prior statements and not to call Lang or Solomon to
testify was unreasonable, but Gray was not prejudiced. The court opined the
discrepancies in Gardner’s testimony were minor, and Lang’s and Solomon’s testimony
would not have materially contradicted Gardner’s testimony. Further, the court said
Lang’s testimony could have been damaging to Gray because it would have corroborated
Gardner’s testimony the gunshots came from a Dodge Magnum.
              Finally, the court concluded Garcia-Barron was not deficient for failing to
object to Rose’s qualifications as a gang expert. After repeating his background, training,
and experience, the court noted Earley testified Rose was qualified to testify as a gang
expert. The court stated, however, that based on Garcia-Barron’s deficient pretrial

                                             24
preparation, it could not be said his failure to challenge the factual basis for Rose’s
opinion was a reasonable tactical decision based on adequate investigation. The court
opined it was not reasonably probable Gray would have received a more favorable result
because the evidence he offered would not have clearly established he was not an
East Coast gang member. The court concluded Garcia-Barron was not deficient for
failing to object to various items of hearsay evidence upon which Rose based his decision
Gray was an active participant in East Coast because expert witnesses are entitled to base
their opinion on hearsay.
              The trial court sentenced Gray to life in prison without the possibility of
parole and a consecutive term of 25 years to life on the vicarious use of a firearm
enhancement on count 1. The court imposed concurrent sentences or stayed the
sentences on the other counts. Gray appealed.
              We affirmed Gray’s convictions in Gray I, supra, G045645. Gray filed a
petition for rehearing and a motion to augment the record. In the rehearing petition, Gray
argued, among other things, the transcript of his interview with police that attorney
Michael William Clough offered into evidence at the hearing on the new trial motion
conflicts with the compact disc (the CD) of the same interview. This is important
because in the transcript Gray admitted he fired a couple shots, but Gray claims the CD
shows there is no evidence Gray made this crucial admission; rather the CD reflects
Hester fired a couple shots. Gray moved to augment the record with the CD. The
Attorney General filed an answer opposing both the rehearing petition and the
augmentation motion.
              We granted rehearing, denied the motion to augment the record, and stayed
the appeal. In the same order, we invited Gray to file a petition for writ of habeas corpus
addressing the issue of whether he was entitled to re-litigate his new trial motion because
of the alleged discrepancy between the transcript of his interview and the CD of his
interview.

                                             25
              Gray filed a request for judicial notice, asking we take judicial notice of the
CD. We denied Gray’s request for judicial notice. Gray submitted an application for
habeas corpus investigator fees.
              We filed an order reserving a ruling on Gray’s application for investigator
fees. Instead, we ordered the parties to file supplemental letter briefs on the issue of
whether attorney Clough has a disqualifying conflict of interest because he apparently
inadvertently offered into evidence the inculpatory statement he now claims was
transcribed incorrectly.
              Gray filed the following: (1) a supplemental letter brief addressing the
conflict issue; (2) a supplemental letter brief indicating he does not intend to file a
petition for writ of habeas corpus until we decide the appeal and withdrawing his request
for habeas corpus investigation fees; and (3) a renewed request for judicial notice.
Clough argues he does not have a disqualifying conflict of interest. The Attorney
General contends Clough does not have a legal conflict but he does have an ethical
conflict.
                                        DISCUSSION
I. Ineffective Assistance of Counsel
              Ineffective assistance of counsel is not listed as a statutory ground for a
new trial. Nonetheless, the California Supreme Court has held that a defendant may seek
a new trial on this ground. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583;
People v. Taylor (1984) 162 Cal.App.3d 720, 724 (Taylor).)
              A statutory motion for a new trial is addressed to the sound discretion of the
trial court, and its ruling will not be disturbed unless a clear abuse of discretion is
established. A different analysis is required when a nonstatutory motion for a new trial
premised on the denial of constitutional rights is made. This requires the application of a
two-step process. (Taylor, supra, 162 Cal.App.3d at p. 724.)



                                              26
               In the first step, the trial court finds the relevant facts. “On appeal, all
presumptions favor the trial court’s exercise of its power to judge the credibility of
witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual
inferences. The trial court’s factual findings, express or implied, will be upheld if they
are supported by substantial evidence.” (Taylor, supra, 162 Cal.App.3d at p. 724.)
               In the second step, the trial court must decide based upon the facts it has
found whether defendant was deprived of his right to the effective assistance of
counsel—i.e., whether counsel’s performance was deficient and whether the defendant
was prejudiced as a result. (Taylor, supra, 162 Cal.App.3d at pp. 724-725.) “To the
extent that these are questions of law, the appellate court is not bound by the substantial
evidence rule, but has ‘“the ultimate responsibility . . . to measure the facts, as found by
the trier, against the constitutional standard . . . .” [Citation.] On that issue, in short, the
appellate court exercises its independent judgment.’ [Citations.]” (Id. at p. 725.)
               In order to establish ineffective assistance of counsel, a defendant has the
burden to establish his counsel’s performance was deficient under an objective standard
of reasonableness and that it is reasonably probable that a result more favorable to
defendant would have occurred in the absence of counsel’s failing. (Strickland v.
Washington (1984) 466 U.S. 668, 687-698 (Strickland); People v. Bolin (1998) 18
Cal.4th 297, 333.) To determine prejudice, “we must compare the evidence that actually
was presented to the jury with that which could have been presented had counsel acted
appropriately. [Citation.]” (Karis v. Calderon (9th Cir. 2002) 283 F.3d 1117, 1133.) If
an ineffective assistance of counsel claim can be decided on the ground of lack of
prejudice, the reviewing court need not determine whether counsel’s performance was
deficient. (Strickland, supra, 466 U.S. at p. 697; In re Crew (2011) 52 Cal.4th 126, 150.)
               Generally, Gray’s central claim is Garcia-Barron presented an implausible
defense based on mistaken identification when a viable defense existed based on
evidence Hester was the shooter and Gray merely an innocent passenger unaware of

                                               27
Hester’s violent plan. Gray’s contentions can be grouped into three general categories:
Garcia-Barron pretrial preparation; his questioning of Gardner; and his questioning of
Rose. With respect to the first category, Gray makes several contentions that essentially
all stem from Garcia-Barron’s failure to investigate the case, interview witnesses,
conduct legal research, request additional discovery, or review all the discovery.
Needless to say, Garcia-Barron’s pretrial preparation was grossly inadequate. His client
faced a special circumstance murder charge and life in prison without the possibility of
parole. Garcia-Barron testified he does not personally interview witnesses, he hires an
investigator to do that, but in this case, he did not hire an investigator. He admitted he
did not review all the discovery, did not pick up additional discovery that was left for him
at the district attorney’s office, or request additional discovery, including any additional
video surveillance footage from the nightclub that may have been informative as to the
nature of the altercation. His case file reflected a dearth of work product. And during his
testimony, he repeatedly said he could not remember what he did to defend Gray.
Garcia-Barron’s admissions demonstrate he provided grossly ineffective pretrial
preparation.
               Garcia-Barron’s deficient pretrial preparation compels the conclusion his
failure to file a severance motion was deficient. Garcia-Barron’s admissions he did not
interview witnesses, review all the discovery, or conduct legal research militate against
the conclusion his decision to not file a severance motion was the result of a reasoned
analysis of the law and facts of the case. Although the trial court stated it would have
likely denied such a motion, Garcia-Barron’s complete lack of pretrial preparation
requires this court to conclude his failure to file a motion to sever Gray’s trial from
Hester’s was ineffective.
               Garcia-Barron’s deficient pretrial preparation also compels the conclusion
his identity defense was deficient. His failure to investigate the case, interview witnesses,
or review discovery prevented Garcia-Barron from making an informed tactical decision

                                             28
that an identity defense was the best option. Quite simply, how can an attorney make
such a strategic decision without knowing two witnesses would testify his client was at
the nightclub? Therefore, we conclude Garcia-Barron was ineffective in offering an
identification defense without having first investigated the case.
              Finally, as noted above, Gray claims Garcia-Barron’s failure to investigate
the case prevented him from offering a potentially meritorious defense—Hester was the
shooter, and Gray did not know Hester planned to fire the gun and did not intend to aid
and abet Hester in committing the offenses. We agree a defense focused on the shooter’s
identity and whether Gray harbored an intent to kill was preferable to a defense based on
mistaken identification.
              As to the second category, Gray argues Garcia-Barron was ineffective
because he did not thoroughly cross-examine Gardner about her inconsistent statements,
and the inconsistencies between her testimony and Lang’s and Solomon’s statements. He
argues Gardner’s testimony conflicted with her statements to police about whether the
altercation at the nightclub was gang related and what transpired at the gas station. He
also argues Lang’s and Solomon’s statements contradicted Gardner’s statements about
the initial confrontation and where Gardner was sitting in the vehicle.
              We begin by noting Garcia-Barron cross-examined Gardner about whether
she was intoxicated, whether she was wearing her eyeglasses, her identification of the
men, the nature of the altercations at the nightclub and the gas station, the shooting, and
what happened after the shooting, including her field sobriety tests and her interviews.
Garcia-Barron began his cross-examination by informing Gardner he would try not to
cover the same material Hester’s defense counsel covered. Hester’s defense counsel
cross-examined Gardner extensively about whether she was intoxicated, whether she was
wearing her eyeglasses, whether she saw the vehicle the shots came from, and her
identification of the men. He also cross-examined Gardner about where she was sitting
in the vehicle and noted she could not have been seated on the “busy side” of the freeway

                                             29
based on the location of the vehicle. Thus, Garcia-Barron acted competently in
establishing Gardner’s level of intoxication may have affected her ability to perceive
events as they unfolded.
              However, this does not negate the fact Garcia-Barron did not interview
witnesses, review all the discovery, or conduct legal research. Based on his ineffective
pretrial preparation, we conclude his failure to cross-examine Gardner concerning her
prior inconsistent statements was ineffective. But the inconsistencies Gray cites to were
introduced into evidence and the trial court instructed the jury on how to evaluate prior
statements. (CALCRIM No. 318.) Gardner testified the altercation at the nightclub was
heated, but the jury also heard her first interview where she described the same encounter
as “no big deal” and it did not become violent. During her first interview, Gardner never
mentioned Little claimed a gang or issued a gang challenge; she described the incident as
merely male braggadocio. But the jury heard Gardner’s testimony Little said “‘20 Crip’”
and “a lot of gang stuff.” Lastly, Gardner’s inconsistent statements concerning the
argument between Little and Gray at the gas station were minimal and inconsequential.
              With respect to his second claim, Garcia-Barron was ineffective for failing
to call Lang and Solomon to testify as to the nature of the altercation outside the
nightclub and where Gardner was sitting in the vehicle. However, Solomon told an
officer she was sitting in the vehicle and did not witness the altercation. And Lang also
admitted he was outside and the altercation had already begun when he returned. Lang
told the officer he could not recall the nature of the altercation. Additionally, the seating
arrangements really were a tangential issue, a point Gray concedes later in his brief. We
recognize Garner’s recollection of where she was sitting in the vehicle could impact the
jury’s determination of her credibility, but Gardner admitted she was not focused on
where she was seated based on the fact she was being shot at and her boyfriend was hit
by a truck and killed. Hester’s defense counsel on cross-examination pointed out
Gardner could not be on the “busy side” of the freeway if she was sitting in the back

                                             30
passenger seat based on where the vehicle was situated on the freeway. Before he began
cross-examination, Garcia-Barron stated he would try to avoid covering the same ground
as Hester’s defense counsel. Gardner also testified she may have been mistaken about
some of the things she told the police. Thus, the inconsistencies were covered and to
some extent explained without cross-examination by Garcia-Barron.
              With respect to the third category, Gray contends Garcia-Barron was
deficient in his cross-examination of Rose based on the following: (1) Garcia-Barron did
not object to highly prejudicial expert gang testimony concerning gang guns or whether
Gray was an active participant in East Coast; (2) Garcia-Barron’s failure to investigate
and review all the discovery resulted in him not obtaining evidence Gray was not an
East Coast gang member, he was not the author of the gang writings found in his
bedroom, and the jail record Rose relied on did not include Gray’s admission he was a
Crip; and (3) Garcia-Barron’s failure to investigate resulted in him not filing a
Pitchess motion to discover Rose’s alleged unethical conduct in an unrelated case where
he shot a fleeing suspect and lied to internal affairs to escape culpability.
              We begin by noting there is sufficient evidence in the record Rose was
qualified to testify as a gang expert. Although he had been assigned to the gang unit for
less than a year, he had been a police officer for over eight years and had dealt with
East Coast for four years. He had testified as a gang expert on East Coast 15 to 20 times.
Finally, Gray’s expert, Earley, testified Rose was a seasoned officer who was qualified to
testify as an expert on gangs.
              With respect to Gray’s first claim, it is well settled expert testimony about
gang culture and habits is admissible and the type of evidence a jury may rely on to reach
a verdict on gang charges, and the expert may rely on hearsay in forming his opinion.
(People v. Gonzalez (2006) 38 Cal.4th 932, 948 (Gonzalez); People v. Gardeley (1996)
14 Cal.4th 605, 616, 620-621 (Gardeley).) Rose testified that if there is a group of gang
members and one has a gun, the other gang members will know. Rose opined this holds

                                              31
true even if not all are from the same gang. And Pirooz testified different Crip factions
will associate with each other if there is not an ongoing rivalry. Thus, there was a
sufficient basis for Rose’s opinion, and any objection would have been overruled.
              Additionally, Garcia-Barron was not deficient for failing to object to the
prosecutor’s inquiry of Rose concerning his opinion whether the nature of the altercation
influenced Rose’s opinion concerning Gray’s gang status. During this exchange, Rose
did not express an opinion whether Gray was guilty of the charged offense or the
enhancements. (People v. Vang (2011) 52 Cal.4th 1038, 1048 [witness may not express
opinion on defendant’s guilt but may offer otherwise admissible opinion even if it
embraces ultimate issue to be decided by jury].) Rose merely testified it was his opinion
Gray was an active participant at the time of the offenses based in part on Gray’s claim
he was an East Coast gang member.
              Gray’s second contention is that Garcia-Barron’s complete lack of pretrial
preparation compels the conclusion he was ineffective in investigating Gray’s gang
background. Although Garcia-Barron did establish during cross-examination that Gray’s
brother also lived in the room and he associated with East Coast gang members,
Garcia-Barron did not interview two witnesses who would have supported Gray’s
assertion he was not an East Coast gang member. Further, Garcia-Barron’s failure to
review the discovery prevented him from learning the exhibit Rose relied on,
Exhibit No. B2, does not include Gray’s self-admission he was an East Coast gang
member. The jail record states the victim of the attack believed his attackers were Crips.
Thus, Garcia-Barron’s lack of pretrial preparation prevented him from moving to exclude
this statement as unreliable hearsay or effectively cross-examining Rose on the basis of
his opinion Gray was an active participant in East Coast.
              With respect to his last claim, Gray’s appellate counsel filed a Pitchess
motion, and the trial court conducted an evidentiary hearing and ordered the disclosure of
names and contact information of persons who had filed complaints against Rose. Based

                                            32
on this information, Gray contends Rose testified falsely in a Los Angeles probation
revocation hearing. But the trial court did not agree, finding no evidence of dishonesty.
Gray does not contend the trial court erred in finding the Pitchess information was
inadmissible. Consequently, no prejudice has been shown by Garcia-Barron’s failure to
raise the issue at trial.
Prejudice
                 We must now determine whether Gray was prejudiced by Garcia-Barron’s
utterly deficient performance. As we explain above more fully, we have concluded
Garcia-Barron provided ineffective assistance of counsel in the following respects: (1)
his complete lack of pretrial preparation compels the conclusion his failure to file a
motion to sever his trial from Hester’s trial, his failure to investigate Gray’s gang
background, and his offering of an identification defense could not have been the result
of reasonable tactical decisions based on adequate investigation; (2) he failed to cross-
examine Gardner regarding her prior inconsistent statements; and (3) he failed to call
Lang and Solomon to testify to contradict Gardner’s testimony. We must now determine
whether Gray was prejudiced by Garcia-Barron’s significant lapses in representation.
Although this is an extremely close case, we conclude Gray was not prejudiced because
there was sufficient evidence supporting his convictions and Gray has not established
there is a reasonable probability the result of the proceeding would have been different
had Garcia-Barron not provided deficient counsel.
                 The evidence at trial established this was a dispute concerning a woman
that quickly turned into a deadly gang confrontation. Gardner’s identification from a
photographic lineup, and Kingi’s identification from surveillance video, placed Gray at
the nightclub.
                 With respect to the gang evidence, the parties stipulated East Coast and
Osage Legends were criminal street gangs. There was strong evidence he was an active
participant of East Coast at the time of the offenses. The gang expert testified that Gray

                                               33
had gang indicia in his home, had gang tattoos, and was contacted by law enforcement in
the company of other known gang members. And as we explain anon, there was
evidence Gray openly claimed he was a member of East Coast. There was evidence the
victim, Little, was a member of “Rollin’ 20’s Crips,” and although they were not rivals
with East Coast, members of those two gangs had previously committed crimes against
each other. Finally, there was testimony a gang member would know when another gang
member is armed even when the gang members are not members of the same gang.
              As to the circumstances of the offenses, the evidence demonstrated
Gardner, Little, Solomon, and Lang went to a nightclub in Gardner’s vehicle. As
Gardner and Little left the nightclub, Gardner testified a man at the nightclub made a
derogatory remark to her. Although Gray contends the surveillance video does not
confirm this, there is no real dispute something inflamed Little, and he got into a verbal
confrontation with a man who was later identified as Gray. Even Lang, the witness who
Gray now asserts would have provided exculpatory testimony had he testified at trial, told
police Little got into a verbal altercation with a man. Garner’s testimony established that
what started as Little defending his girlfriend’s honor evolved into a gang confrontation.
Gardner stated that Little claimed he was a member of Rollin’ 20’s Crips, and Gray
replied he was a member of East Coast. Both Little and Gray also referred to each other
as “cuz,” which the evidence established was how Crip gang members refer to each other.
Evidence Gray openly claimed gang membership at the nightclub undermines Gray’s
assertion the jury would have questioned Rose’s credibility and discounted his opinion
Gray was an active participant in East Coast had Garcia-Barron presented the information
he claims would have shown he did not belong to a gang.
              Once that skirmish ended, Gardner, Little, Solomon, and Lang got into
Gardner’s vehicle and drove to a nearby filling station. The evidence at trial
demonstrated Hester and Gray followed the foursome to the gas station in a blue or gray
Dodge Magnum, a vehicle that matched the description of a vehicle Hester was later

                                             34
driving when officers arrested him. Although Gray again questions Gardner’s account of
what transpired at the gas station, there was testimony Gray and Little argued again
before Little and his three friends got back into Gardner’s vehicle and drove onto the
freeway. Gardner testified that when they were on the freeway, she saw the same
Dodge Magnum drive next to them before the shooting began. From this evidence, the
jury could certainly conclude that Gray and Hester conspired to follow Gardner’s vehicle
onto the freeway and shoot at Gardner’s vehicle. Moreover, the jury could also
reasonably conclude that because Gray had argued with Little first at the nightclub, and
then again at the gas station, he was the one who fired the gun to resolve the gang dispute
and enhance his and his gang’s reputation.
              Thus, there was evidence from which the jury could reasonably conclude
Gray, an admitted East Coast gang member, and his confederate, Hester, an
Osage Legend gang member, agreed to and acted together in retaliating against Little and
his friends by pursuing them onto the freeway and shooting at them, ultimately causing
Little’s death, to benefit and promote their gangs.
              Gray contends a viable defense existed based on evidence Hester was the
shooter and Gray did not aid and abet the shooting. Comparing the evidence the
prosecution presented at trial to the evidence Gray offered at the new trial hearing,
however, leads us to conclude he has failed to meet his burden to show a reasonable
probability the outcome of the proceeding would have been different.
              Gray overstates the significance of Lang’s pretrial statements to a detective
who testified at the preliminary hearing that “Lang told me that the driver of the vehicle
put a dark-colored handgun out of the vehicle and began firing.” True, this supports the
theory Hester was the shooter, coupled with information the car belonged to Hester,
although it does not categorically prove this point. More importantly, it sheds no light on
whether Gray aided and abetted the shooting. Based on the gang experts’ testimony,
Gardner’s testimony, and other prosecution evidence, it appears to us the only way for

                                             35
Gray to raise a reasonable doubt on the issue was to credibly testify he lacked the
requisite mental state.
              The record before us shows this would have been impossible. The
transcript of Gray’s pretrial interview shows he admitted firing “a couple” of shots.9


9               We recognize there is a possibility of a significant discrepancy between the
transcript of Gray’s interview with the Buena Park Police Department that defense
counsel offered into evidence at the new trial hearing and the CD of the same interview.
After we filed our opinion in Gray I, supra, G045645, Gray made numerous attempts to
make the CD part of the record.
                As to whether augmentation is proper, “‘[O]ur review on direct appeal is
limited to the appellate record.’ [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900,
952.) California Rules of Court, rule 8.155(a)(1)(A), authorizes an appellate court to
augment the record with “[a]ny document filed or lodged in the case in superior court
. . . .” (6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Appeal, § 164,
p. 446 [matters outside record not generally reviewable].)
                At the hearing on the new trial motion, Gray’s defense counsel offered into
evidence a transcript of Gray’s interview with the police that included an inculpatory
statement—Gray’s admission he fired a couple shots. Gray’s counsel did not offer into
evidence the CD of the same interview that allegedly included an exculpatory
statement—Gray’s accusation Hester fired a couple shots. To now augment the record
with the CD would result in supplementing the record with something that was not before
the trial court when it ruled on the new trial motion. That is improper as we are limited to
reviewing the record before the trial court.
                With respect to whether judicial notice is appropriate, Evidence Code
section 452, subdivision (h), authorizes a court to take judicial notice of “Facts and
propositions that are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy.” The
comment to subdivision (h), states: “Subdivision (h) provides for judicial notice of
indisputable facts immediately ascertainable by reference to sources of reasonably
indisputable accuracy. . . . Sources of reasonably indisputable accuracy include not only
treatises, encyclopedias, almanacs, and the like, but also persons learned in the subject
matter.” “Strictly speaking, a court takes judicial notice of facts, not documents.
[Citation.]” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)
                Here, Gray cites to no authority, and we found none, that authorizes this
court to take judicial notice of a CD as it is generally facts, not documents, that are the
proper subject of judicial notice. Additionally, Gray’s request we take judicial notice of
“the fact of what actual words were used in that interview,” in our view is not a proper
subject of Evidence Code section 452, subdivision (h), as that subdivision envisions
courts taking judicial notice of “treatises, encyclopedias, almanacs, and the like, [and]

                                            36
Thus, it is not reasonably probable a jury would have believed Gray’s denials if he
testified.
              Even if the transcript did not contain this damaging admission, Gray still
could not prevail. Gray admitted he told Chen, his conflict lawyer, and Garcia-Barron
that he would not testify because he feared reprisals for naming Hester as the shooter.
We recognize Garcia-Barron neither informed Gray of potential defenses nor discussed
the evidence with him, presumably, as we have noted, because Garcia-Barron did not
adequately investigate the case. But Gray was not asked whether he would testify had a
competent attorney explained his options. Absent evidence Gray would have changed his
mind about testifying, he cannot show a reasonable probability of a more favorable result.
              In conclusion, the record includes sufficient evidence supporting Gray’s
convictions. Additionally, Gray offers no compelling strategy that would have likely
resulted in a more favorable outcome for him. Therefore, Gray has not established there
is a reasonable probability he would have received a more favorable result had Garcia-
Barron not provided ineffective assistance of counsel because his alternative defense was
weak.




also persons learned in the subject matter.” Thus, we deny Gray’s renewed motion to
take judicial notice of the CD and the “actual words” used during the interview.
                Gray suggests that if there is a good faith dispute as to the authenticity of
the CD, this court should litigate the reliability of the CD. This would require the
appellate court to perform a function not contemplated by the law, and one better suited
for the trial court. We decline Gray’s invitation to augment the record with or take
judicial notice of evidence that “seems reliable” as it would be replete with dangers. The
evidence has not been the subject of a trial court hearing where the crucible of
foundational requirements would apply.
                Gray’s best remedy is to file a petition for writ of habeas corpus in the trial
court alleging the discrepancy entitles him to relitigate his new trial motion. (People v.
Gray (2005) 37 Cal.4th 168, 211.)

                                              37
Failure to Object to Prosecutorial Misconduct
              Gray claims Garcia-Barron was ineffective because he did not object to the
numerous instances of alleged prosecutorial misconduct detailed below. As we will
explain, the prosecutor committed one instance of misconduct, but Garcia-Barron could
not have objected to it because it did not come to light until after trial. Thus, Garcia-
Barron was not ineffective for failing to object to the alleged prosecutorial misconduct
we discuss below.
Cumulative Effect of Ineffective Assistance of Counsel Error
              Gray argues the cumulative effect of the numerous defense errors requires
reversal. We have concluded there were numerous instances of defense error. However,
based on the evidence of Gray’s guilt we detail above, we conclude those errors did not
prejudice Gray. To reverse a judgment based on ineffective assistance of counsel, it is
appellant’s burden to demonstrate a reasonable probability that absent defense counsel’s
deficiencies, he would have received a more favorable result. Based on this record, Gray
has not satisfied this high bar, and when viewed in its entirety, we cannot conclude the
total effect of the error was prejudicial.
II. Prosecutorial Misconduct
              “‘“‘“A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.’”‘ [Citation.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’”‘ [Citation.]”
(People v. Ayala (2000) 23 Cal.4th 225, 283-284.)
              The Attorney General argues Gray forfeited appellate review of all the
claims of alleged prosecutorial misconduct because he did not object and request a
curative admonition. (People v. Foster (2010) 50 Cal.4th 1301, 1354.) Gray argues any

                                             38
objection would have been futile, but he does not explain why. Because Gray contends
Garcia-Barron was ineffective for failing to object to the alleged misconduct, we will
address the merits of his claim. (See People v. Williams (1998) 61 Cal.App.4th 649, 657
[addressing the merits of a claim, despite its forfeiture, because defendant asserted
ineffective assistance of counsel].) Before we do that though, we will first address the
one instance Garcia-Barron could not have objected to because the prosecutor did not
disclose the misconduct until after trial was complete—the prosecutor’s witness
relocation payments to Gardner.
A. Failure to Disclose Prosecution Witness Payment
              Gray asserts the prosecutor committed misconduct because he did not
disclose he made witness relocation payments to Gardner. We agree but conclude Gray
was not prejudiced.
              In Brady v. Maryland (1963) 373 U.S. 83, 87, the Supreme Court of the
United States held “that the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”
              “‘[T]he term “Brady violation” is sometimes used to refer to any breach of
the broad obligation to disclose exculpatory evidence—that is, to any suppression of
so-called “Brady material”—although, strictly speaking, there is never a real “Brady
violation” unless the nondisclosure was so serious that there is a reasonable probability
that the suppressed evidence would have produced a different verdict. There are three
components of a true Brady violation: The evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the
evidence to the issue of guilt or innocence.’ [Citations.] Materiality, in turn, requires
more than a showing that the suppressed evidence would have been admissible [citation],

                                             39
that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or
that using the suppressed evidence to discredit a witness’s testimony ‘might have
changed the outcome of the trial’ [citation]. A defendant instead ‘must show a
“reasonable probability of a different result.”‘ [Citation.]” (People v. Salazar (2005)
35 Cal.4th 1031, 1042-1043.) We review Gray’s claim de novo.
              The Attorney General concedes the prosecutor should have disclosed to
Gray before trial that Gardner received witness relocation payments. But the
Attorney General argues Gray has not demonstrated there was a reasonable probability of
a different result had the prosecutor disclosed the evidence before trial. We agree with
the Attorney General.
              When viewed in the light most favorable to Gray, had the prosecutor
disclosed the witness relocation payments to Gray before trial, his defense counsel could
have attacked Gardner’s credibility in the following respects: that Gardner was reluctant
to testify and she received payments in exchange for her testimony; and that based on her
inconsistent statements to Ackerman, she slanted her testimony in favor of the
prosecution. But Gray admits the disclosure of the payments was “unlikely to have
caused jurors to change their assessment of all parts of her testimony.” Gray concedes it
“would not have caused jurors to doubt her identification of him; nor would it have been
likely to cause them to doubt her testimony that the words ‘East Coast’ were uttered.”
              That concession is crucial because it places Gray at the nightclub and tends
to establish the altercation was gang related. During her interview with Ackerman, her
interview with gang detectives, and her testimony, Gardner was consistent in the crucial
aspects of the incident. Gardner stated a man tried to talk to her at the nightclub. She
said a man she later identified as Gray with “98 to 99 percent” certainty was one of the
men at the nightclub. She stated that after they left the nightclub, the same two men
followed them to the gas station in a car. Finally, she said the same car was next to her
vehicle on the freeway at the time of the shooting.

                                            40
              It is true Gardner was inconsistent in her statements in a few respects,
including the severity of the incident at the nightclub and whether Little used gang
terminology, her initial description of the vehicle, whether she was wearing her
eyeglasses, her inability to identify Hester, and her level of intoxication. But as we
explain above, Gardner was consistent in the key aspects of her testimony. Thus, there
was not a reasonable probability the result of the proceeding would have been different
had the prosecutor disclosed to the defense before trial that Gardner received witness
relocation payments. We now turn to those instances of alleged prosecutorial misconduct
Garcia-Barron could have objected to during trial but failed to do so.
B. Eliciting False and Misleading Testimony
              Gray contends the prosecutor committed misconduct by “presenting and
failing to correct false and misleading testimony by witnesses.” Although he
acknowledges it is unlikely it would have changed the outcome of the trial, Gray
contends the prosecutor committed misconduct when he elicited Gardner’s erroneous
testimony she was seated in the rear passenger side seat. He also contends the prosecutor
committed misconduct when he elicited Rose’s false testimony that while in jail, Gray
admitted he was an East Coast gang member.
              A prosecutor commits misconduct when he or she uses deceptive or
reprehensible methods to persuade a jury. (People v. Rowland (1992) 4 Cal.4th 238,
274.) A prosecutor may not present evidence that he or she knows to be false and must
correct any falsity of which he or she is aware. (People v. Seaton (2001) 26 Cal.4th 598,
647.)
              With respect to his first claim, Gray points to nothing in the record to
support his contention the prosecutor knowingly elicited evidence from Gardner he knew
to be false. Indeed, the record contains no evidence the prosecutor deliberately cajoled
Gardner into testifying she was seated in the rear passenger side seat. Gardner was
thoroughly cross-examined on where she was sitting in the vehicle, and she admitted her

                                             41
memory on the topic was hazy, considering the trauma of the event. (People v. Ervin
(2000) 22 Cal.4th 48, 92 [prosecutor no duty to correct own witness’s testimony where
inconsistencies explored at length on cross-examination].) Gray has not established the
prosecutor committed misconduct on what was really a subsidiary point.
              As to his second claim, an expert may base an opinion on reasonably
reliable hearsay (Gonzalez, supra, 38 Cal.4th at p. 948; Gardeley, supra, 14 Cal.4th at p.
618.) The jail record Rose relied on in forming his opinion Gray was an active
participant in East Coast described eyewitness accounts of Gray’s leadership role in an
attack on an inmate by a group of men believed to be Crip members.
              As the Attorney General notes, “[t]he victim identified Gray as the ‘rep,’
which means ‘the person in charge of his particular race’ who ordered the attack and then
participated in the beating . . . .” The Attorney General also notes “Gray himself
‘admitted to being the [B]lack inmate representative . . . .” Rose certainly could rely on
this report to support his opinion Gray was an active gang participant, but he overstated
the matter when he testified the report “alleged that . . . Gray informed another member
inside the jail system that he was a Crip.” The report does not record Gray’s express
admission he was a Crip gang member, although that certainly is a reasonable inference
Rose was entitled to draw. Assuming the prosecutor should have corrected Rose’s
testimony, we conclude there is no reasonable likelihood Rose’s testimony could have
affected the jury’s verdict. (See People v. Dickey (2005) 35 Cal.4th 884, 909-910.)
              Rose could rely on this evidence, and other evidence discovered during his
review of the case, in determining whether Gray was an East Coast gang member. The
prosecutor did not commit misconduct.
C. Change in Theory
              Gray argues the prosecutor committed misconduct when after initially
charging Hester with personally discharging a firearm and personally inflicting great
bodily injury and death, the prosecutor dismissed those allegations against Hester and

                                            42
proceeded based on the theory Gray was the shooter. In a related claim, Gray argues the
prosecutor committed misconduct when during closing argument he argued Gray was the
“‘likely shooter.’” Neither contention has merit.
              Prosecutors have an ethical obligation to search for the truth, convict the
guilty, and not convict the innocent. (U.S. v. Wade (1967) 388 U.S. 218, 256-258
(conc. & dis. opn. of White, J.).) “A prosecutor is given wide latitude to vigorously argue
his or her case and to make fair comment upon the evidence, including reasonable
inferences or deductions that may be drawn from the evidence. [Citation.]” (People v.
Ledesma (2006) 39 Cal.4th 641, 726.)
              Here, we presume that at the close of trial, the prosecutor realized there was
insufficient evidence to support the conclusion Hester fired the gun and moved to dismiss
those enhancements. On the prosecutor’s motion, the trial court dismissed the
enhancements against Hester that he personally inflicted great bodily injury, personally
discharged a firearm causing great bodily injury and death, and personally discharged a
firearm. The prosecutor fulfilled his ethical obligation when, at the end of the trial, he
concluded the evidence did not support a true finding on the enhancements.
              The evidence at trial did establish Gray was at the nightclub, he got into an
altercation with Little, he got into a car that followed Little to a gas station and again
argued with Little, and the same car was next to the victims’ vehicle when the shooting
began. The evidence also established Hester’s girlfriend owned a vehicle that matched
the description of the car that the gunshots came from. From this evidence the jury could
reasonably conclude Hester drove the car, but he was not the shooter, and Gray, who had
just exchanged gang challenges with Little, was the shooter. These were reasonable
inferences the jury could draw from the evidence, and the prosecutor’s arguments did not
implicate Gray’s federal due process rights because Gray was not charged with
personally discharging a firearm or personally inflicting death or great bodily injury. As
we explain, below, the prosecutor properly argued there were two defendants who

                                              43
committed the offenses and the jury need not decide who was the driver and who was the
shooter. (People v. Wilson (2008) 44 Cal.4th 758, 801-802 (Wilson) [federal due process
does not require jury to find whether defendant direct perpetrator or aider and abettor].)
              Gray’s reliance on In re Sakarias (2005) 35 Cal.4th 140, is misplaced. In
that case, the California Supreme Court condemned the use of irreconcilable theories of
guilt or culpability in separate trials of co-defendants that necessarily risks or causes a
false conviction or finding. (Id. at pp. 159-160.) Here, Gray and Hester were tried
together, and the prosecutor’s theories of guilt were not irreconcilable. The prosecutor
argued the jury could reasonably infer from the evidence one defendant was the driver
and one defendant was the shooter and it did not matter what role each defendant played.
Thus, the prosecutor did not commit misconduct when he proceeded on the theory Gray
was the “likely shooter.”
D. Misstatement of the Law
              Gray claims the prosecutor misstated the law when he argued the jury did
not have to agree which role either defendant played. We disagree.
              “[T]he jury need not decide unanimously whether a defendant was a direct
perpetrator or an aider and abettor, so long as it is unanimous that he was one or the
other.” (Wilson, supra, 44 Cal.4th at pp. 801.) “When two or more persons combine to
commit a crime, the jury need not agree on exactly who did what as long as it is
convinced a particular defendant committed the crime regardless of what that defendant’s
precise role may have been. Sometimes there may be uncertainty as to which of two
persons did what, but no doubt that each, or at least a particular defendant, was guilty of
the crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1135-1136.)
              Here, as we detail above, the prosecutor stated it did not “matter who did
what in this case[]” and “[d]on’t get overly concerned with the roles, because you know
someone drove and you know someone shot.” Considering the prosecutor’s comments in



                                              44
context, this was a correct statement of the law, and the prosecutor did not commit
misconduct.
E. Griffin Error
              Gray asserts the prosecutor committed misconduct when he argued Gray
did not explain why there were gang writings amongst personal letters in his bedroom
and why he did not explain the reason for him claiming he was an East Coast gang
member while he was in jail. Not so.
              “‘[T]he Fifth Amendment . . . forbids either comment by the prosecution on
the accused’s silence or instructions by the court that such silence is evidence of guilt.’
(Griffin v. California (1965) 380 U.S. 609, 615 . . . .) The prosecutor’s argument cannot
refer to the absence of evidence that only the defendant’s testimony could provide.
[Citation.] The rule, however, does not extend to comments on the state of the evidence
or on the failure of the defense to introduce material evidence or to call logical witnesses.
[Citation.]” (People v. Brady (2010) 50 Cal.4th 547, 565-566.)
              Here, the prosecutor did not comment on Gray’s decision not to testify.
The prosecutor merely stated defense counsel did not offer evidence explaining why there
was gang indicia in Gray’s bedroom. Counsel could have called Gray’s brother, Manuel,
to provide that testimony. And the prosecutor stated defense counsel did not offer any
evidence refuting the assertion that while in jail Gray claimed he was a Crip. Counsel
could have offered more evidence from the jail report concerning the basis for Rose’s
opinion. Thus, the prosecutor did not commit misconduct by arguing Gray’s
defense counsel failed to explain the above-mentioned evidence.
F. Failure to Conduct Proper Investigation
              Gray claims the police officers investigating the crime skewed their
investigation to fit the prosecutor’s theory the offenses were gang related and ignored
other evidence that did not fit the prosecutor’s theory of the case. To support this
specious claim, Gray merely cites to an isolated statement from Lang, contradictions

                                             45
between Gardner’s and Solomon’s testimony, and the fact officers obtained only a
portion of the nightclub’s video surveillance. Because Gray does not provide any
reasoned argument to support his claim, we need not discuss it further. (Cal. Rules of
Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793.)
G. Discovery Violation
                 Gray contends the prosecutor “engaged in a pattern of deceptive conduct”
by not disclosing Kingi viewed the nightclub surveillance video shortly before testifying
and doubted his previous identification of Von Lewis. Gray spills much ink discussing
this claim but he states, “The violation concerned testimony that was not directly relevant
to the case against Gray” and, “This discovery violation did not directly impact Gray’s
defense.” Because Gray admits this alleged prosecutorial misconduct did not prejudice
him, we need not discuss it further. (Cal. Const., art. VI, § 13; People v. Guerra (2006)
37 Cal.4th 1067, 1159-1160 [trial court grant new trial motion only if defendant
established reversible error], overruled on other grounds in People v. Rundle (2008)
43 Cal.4th 76, 151.)
H. Prejudice
                 We have concluded the prosecutor committed only one instance of
misconduct. As discussed above, Gray was not prejudiced by the prosecutor’s failure to
disclose Gardner received witness relocation payments. Thus, we need not discuss this
claim further.
III. Final Thoughts
                 Garcia-Barron’s deficiencies permeated the trial process. He failed to
adequately prepare for trial, and he was grossly inadequate in his trial tactics. His client
faced a special circumstance murder charge, and he did not interview any witnesses or
review all the discovery. No competent criminal defense attorney can adequately
examine witnesses without knowing what the witnesses intend to say or prepare a defense
without knowing what evidence the prosecutor intends to rely on. This is one of the more

                                              46
egregious examples of ineffective assistance of counsel we have witnessed either as trial
judges or appellate justices. This is a close case. However, based on the overwhelming
evidence of Gray’s guilt, we cannot conclude there is a reasonable probability the result
of the proceeding would have been different absent Garcia-Barron’s deficient
performance.
                                     DISPOSITION
               The judgment is affirmed. We deny Gray’s renewed motion to take judicial
notice of the CD.




                                                 O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



ARONSON, J.




                                            47
