Filed 11/3/17 (unmodified opn. attached)
                                      CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H041739
                                                   (San Benito County
        Plaintiff and Respondent,                   Super. Ct. Nos. CR1300100,
                                                    CR1300101, and CR1300102)
        v.

VINCENT PETTIE et al.,                            ORDER MODIFYING OPINION
                                                  AND DENYING REHEARING
        Defendants and Appellants.
                                                  NO CHANGE IN THE JUDGMENT


        THE COURT:
        It is ordered that the opinion filed herein on October 10, 2017, be modified as
follows:
        1. The sentence beginning with “The parties do not address the applicable
             standard of prejudice” on page 37 shall be deleted and replaced with the
             following sentence:

               The parties did not address the applicable standard of prejudice in their
        briefing.


        2. The paragraph beginning “Applying this standard,” on page 38 and continuing
             onto page 39 shall be deleted and replaced with the following two paragraphs:

                In a petition for rehearing, the Attorney General contends the failure to give
        the instruction would constitute an error of state law only, such that the proper
        standard for prejudice is supplied by People v. Watson (1956) 46 Cal.2d 818
        (Watson) [reversal required only if it is reasonably probable the defendant would
      have enjoyed a more favorable result in the absence of the error]. For this
      proposition, the Attorney General cites People v. Perry (1979) 100 Cal.App.3d
      251 (Perry). (See also People v. Northrop (1982) 132 Cal.App.3d 1027 [citing
      Perry], disapproved on other grounds in People v. Smith (1984) 35 Cal.3d 798.)
      The Attorney General also contends a defendant’s presence can constitute aiding
      and abetting provided the defendant is present “for the purpose of assisting the
      crime.” (People v. Boyd, supra, 222 Cal.App.3d at p. 556.) But the trial court
      gave no such instruction here; nor is this language consistent with CALCRIM No.
      401 (requiring the jury to find the defendant’s words or conduct did in fact aid and
      abet the perpetrator’s commission of the crime).
             As to prejudice, although the court in Perry cited the California
      Constitution, the court did not analyze the issue and did not clearly state the
      standard. But we need not decide which standard applies. Assuming Watson
      controls, we conclude it is reasonably probable Pettie would have enjoyed a more
      favorable result had the court given the instruction. As set forth above, the
      evidence of his participation in the assault, although sufficient to sustain the
      convictions, was not strong. Given the prosecution’s arguments, the jury’s
      findings may have hinged on the inference that Pettie’s status as a Norteño gang
      member motivated him to aid and abet the attack. Although such an inference
      would have been reasonable, the evidence to support it—consisting solely of the
      gang expert’s testimony that gang members are obligated to participate in a gang-
      related assault—did not compel such a finding. We conclude this error requires
      reversal of Pettie’s convictions on Counts 1 through 5. The result would be the
      same under the standard set forth in Prettyman, supra.
Respondent’s petition for rehearing is denied.
There is no change in the judgment.


Dated: November 2, 2017                          _______________________________
                                                 Walsh, J. *




                                                 _______________________________
                                                 Premo, J.




      *
       Judge of the Santa Clara County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                            2
Filed 10/10/17 (unmodified opn.)
                                   CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


THE PEOPLE,                                        H041739
                                                  (San Benito County
        Plaintiff and Respondent,                  Super. Ct. Nos. CR1300100,
                                                   CR1300101, and CR1300102)
        v.

VINCENT PETTIE et al.,

        Defendants and Appellants.


        A jury found defendants Philip Garcia, Andrew Lanford, and Vincent Pettie guilty
of attempted murder, assault, and witness dissuasion, with gang and firearm
enhancements, as the result of an attack on Joseph Delgadillo. The trial court imposed
aggregate terms of 42 years to life on Garcia, and 29 years to life on Lanford and Pettie. 1
        At the time of the assault, defendant Garcia was dating victim Delgadillo’s ex-
wife. At some point, Delgadillo’s daughter came to his home with bruises and
complained that Garcia had hit her. Delgadillo called the police, but they did not arrest
Garcia at that time. Three weeks later, as Delgadillo was watching football with
defendant Lanford, Lanford questioned Delgadillo about calling the police and invited
him out to smoke. Once outside, Delgadillo saw Garcia, defendant Pettie, and another
man. Someone called Delgadillo a “cop caller” and some or all of the men attacked
Delgadillo. Delgadillo saw Garcia point a pistol at him during the attack, but otherwise
Delgadillo did not specifically identify which of the men personally participated in the

        1
        The trial court imposed both determinate and indeterminate terms but did
not specify whether the indeterminate terms were consecutive or concurrent to the
determinate terms.
attack. After suffering injuries, Delgadillo managed to run away. He heard four or five
gunshots as he fled.
       Defendants raise numerous claims on appeal. We find no merit in the claims of
failure to bifurcate, Brady 2 violation, juror bias, prosecutorial misconduct, and
insufficient evidence, including the claim of insufficient evidence that the Norteños were
a unitary gang under People v. Prunty (2015) 62 Cal.4th 59 (Prunty).
       Defendants also claim the admission of testimonial hearsay through the
prosecution’s gang expert violated their confrontation rights under Crawford 3 and People
v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). We conclude this claim has merit and
requires reversal of the true findings on the gang enhancements. As to Garcia and
Lanford, we conclude the Crawford violation does not require reversal of the convictions
for attempted murder and assault. As to Pettie, however, we conclude the violation
requires reversal on all counts.
       Finally, defendants raise several claims of instructional error and sentencing error.
We conclude the trial court failed its sua sponte duty to give the “mere presence” portion
of CALCRIM No. 401 as it related to Pettie’s role in aiding and abetting the assault. The
trial court also failed to instruct the jury on the requisite mens rea for witness dissuasion.
These errors require reversal of the convictions on the relevant counts. We grant further
relief on one claim of sentencing error. We will reverse the judgments and remand for
further proceedings.




       2
           Brady v. Maryland (1963) 373 U.S. 83 (Brady).
       3
           Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
                                               2
                       I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offenses
       1. Overview
       In 2012, Joseph Delgadillo was engaged in a custody dispute with his ex-wife.
Delgadillo’s ex-wife was dating Philip Garcia at the time. In November 2012,
Delgadillo’s daughter came to his home with bruises and told Delgadillo that Garcia had
hit her. Delgadillo reported the incident to the Hollister Police Department, but the police
did not arrest Garcia at that time.
       On the evening of December 6, 2012, Delgadillo went to his cousin’s house in
Hollister to watch a football game with Andrew Lanford and others. Delgadillo
subsequently gave police the following account of the evening: At some point, Lanford
began asking Delgadillo why he had called the police about the incident with his daughter
and Garcia. Lanford then invited Delgadillo outside for a cigarette. As they were
walking outside, Lanford questioned Delgadillo again about calling the police. Once
outside, Delgadillo saw three other persons: Garcia, Pettie, and a man identified only as
“Robert.” Delgadillo was called a “cop caller,” and a fight ensued. In the course of the
fight, Delgadillo’s sweatshirt was pulled up over his head and he was knocked to the
ground. Someone struck him on the head with a hard object, which he believed to be a
gun. As he was getting up, he saw Garcia pointing a gun in his face. Delgadillo then ran
away. As he fled, he heard four or five gunshots. Delgadillo suffered a laceration on his
head and several bruises and scratches, but he escaped without further injury.
       At trial, Delgadillo recanted the substance of these allegations. The prosecution
introduced his hearsay statements to the police as prior inconsistent statements. The
prosecution also introduced evidence that Lanford, Garcia, and Pettie were members of
the Norteño criminal street gang.




                                             3
       2. Testimony of Joseph Delgadillo
       Delgadillo reluctantly testified for the prosecution under subpoena. He testified
that his cousin, Yanina Torres, was married to Andrew Lanford. He admitted that he
called the police on November 12, 2012, to report his daughter’s claims that Garcia had
hit and bruised her. He explained that he was trying to get custody of his children
because he believed his ex-wife was unfit to care for them.
       When asked about the night of December 6, 2012, Delgadillo testified that he
could not recall being assaulted at his cousin’s house. He claimed he had blacked out
after drinking, and said it was “[k]ind of like a bad dream.” He could not recall talking to
the police or anyone else about what happened that night. He testified that he “wasn’t in
the right state of mind” because he was “going through a lot in my life at the time.” He
claimed that anything he must have told the police was the product of anger and
confusion. When asked about the allegations that police said he had made against Garcia,
Lanford, and Pettie, Delgadillo responded that any such allegations would have been lies.
       When asked why he was reluctant to testify, Delgadillo responded, “I’ve moved
on with my life. None of this concerns me.” When asked if he was concerned about
testifying, he responded, “There’s always concerns. I mean, I’ve been living watching
over my shoulder since this all began.” He denied that anyone had told him not to testify
but added, “I have kids and I have family and it doesn’t matter regardless of whatever;
you know? Obviously, I’m going to take their best interest in mind; so, like I said, I’ve
moved on.”
       3. Testimony of Deputy Sheriff Michael Mull
       On the evening of December 6, 2012, San Benito County Deputy Sheriff Michael
Mull received a dispatch call reporting gunshots fired and males fighting around the
1500 block of Nash Road. Upon arriving at the scene, Deputy Mull and his partner,
Deputy Sheriff Marc Williams, found some blood-stained clothing in front of a fence
outside. Deputy Mull saw blood drops leading up to the front of the house at 1440 Nash
                                             4
Road. He questioned Jynnita Torres (Yanina Torres’ sister) at the house while Deputy
Williams questioned another woman. 4
       Jynnita said she had heard some gunshots followed by a strange man in a black
sweatshirt and jeans running into the house. She said the man cleaned up in the kitchen
and ran away. Deputy Mull saw blood drops inside the house, so he followed them into
the house and searched the living room, a bedroom, and the kitchen. He did not see any
blood or bloody rags in the kitchen, and he did not believe Jynnita was telling him the
entire truth.
       Deputy Mull later found a single bullet casing on the ground outside. He also
spoke with a neighbor who described seeing several subjects fighting in the street. The
neighbor said they sped away in an SUV, and he reported hearing a gunshot.
       Later that night, a dispatcher informed Deputy Mull that a victim of an assault at
the Nash Road residence wished to file a report. When Deputy Mull arrived at the
victim’s residence, he saw Delgadillo, Degadillo’s mother, and another relative.
Delgadillo had a laceration above his left eye, and he appeared to have been involved in
an assault. The laceration was one to two inches long. He had scratches and blood on his
head, and bruising and abrasions on his arm and leg.
       Delgadillo gave Deputy Mull the following account: Delgadillo had been
watching a football game at his cousin’s home at Nash Road. Lanford was there. As
they were watching the game, Lanford started asking Delgadillo why he had call the
police about the issues he was having with his ex-wife and Garcia. At some point,
Lanford went outside briefly and came back inside. He asked Delgadillo to go outside to
smoke a cigarette with him. As they went outside, Lanford continued to question
Delgadillo about calling the police on Garcia. Once they got outside, Delgadillo saw


       4
        We will refer to the Torres family members by their first names to avoid
confusion.
                                             5
three additional persons: Garcia, Pettie, and a man named “Robert” whose last name
Delgadillo did not know.
       Delgadillo heard someone call him a “cop caller” and a fight ensued. During the
course of the fight, his sweatshirt was pulled up over his head. He was then hit on the
head with a hard object which he believed to be a gun. At that point, he was trying to get
up off the ground. As he looked up, he saw Garcia pointing a gun directly into his face at
close proximity. Delgadillo then ran away. As he was running away, he heard four or
five gunshots.
       Deputy Mull asked Delgadillo how he knew the men. Delgadillo said he had
known Lanford for at least 10 years, and that Garcia was his ex-wife’s boyfriend.
Delgadillo said he had gone to school with Pettie. When Deputy Mull asked Delgadillo if
he wished to pursue criminal charges against the men, Delgadillo responded, “What do
you think, they tried to fucking kill me?” Delgadillo did not appear intoxicated.
       The next day, Deputy Mull took Delgadillo to the county jail and showed him
three separate “six pack” photo lineups—one with Garcia, one with Lanford, and one
with Pettie. Delgadillo identified the photos of each of the three men. Deputy Mull
asked him again what had happened the night before, and Delgadillo gave an account
consistent with his prior statement.
       4. Testimony of Patricia Torres
       Patricia Torres is Delgadillo’s mother. She was present in court when he testified.
At some point during his testimony, she got up and left the courtroom. The prosecution
later called her as a witness. Patricia testified that she left the courtroom during
Delgadillo’s testimony because some of the things he said were not true and she believed
he was in fear for his life. She said he had previously told her he had been threatened,
but he did not say who threatened him.
       When asked about the night of the assault, Patricia testified as follows. Delgadillo
got home from work early that day so they could watch sports together. Delgadillo then
                                              6
got a phone call from his cousin. After Delgadillo got off the phone, he told Patricia he
was going to his cousin’s house to watch the football game with his cousin and Lanford.
Later, Delgadillo called Patricia and said he had been attacked during a fight with
Lanford because of Delgadillo’s having called the police. Delgadillo then came home
with a knot on his head and told Patricia he had been hit with a gun. He said Lanford and
Garcia were there, but he did not name anyone else.
       5. Other Witnesses
       Jynnita Torres is Delgadillo’s cousin and Yanina’s sister. She lived at the Nash
Road residence. She was present on the night of the assault, and she testified that
Lanford was there as well. She recalled the police coming to the house, but she testified
that she did not recall making various statements to the police about the assault. She
could not recall telling the police she heard gunshots. She admitted telling police a
strange person with blood on him had entered the house, but stated that she “thought he
had fell.” She also admitted that she knew that person was Delgadillo but explained that
she had lied to police because she thought he was drunk, and because she was afraid and
confused. She could not recall many details of the incident.
       Orlando Perez, Jynnita’s boyfriend, was also at the house on the night of the
assault. He testified that he did not hear any gunshots. He denied telling the police that
Delgadillo and Lanford were there. He admitted in his testimony, however, that
Delgadillo and Lanford were there “at some point.” He testified that he did not hear any
conversation between them while they were watching the football game.
       6. The Prosecution’s Gang Evidence
       Deputy Mull testified for the prosecution as an expert in criminal street gangs. He
opined that all three defendants were members of the Norteño criminal street gang.
When asked about a hypothetical offense with facts similar to those set forth above, he
opined that such an offense would benefit and promote the gang.


                                             7
       Deputy Mull testified that the Norteño gang was the predominant criminal street
gang in San Benito County. He estimated that there were around 50 to 100 members or
associates of the Norteño gang in Hollister. Norteños identify with the color red, the
number “14”, the Roman number “XIV”, and the letter “N”, which is the 14th letter of
the alphabet. They also identify with the symbol of the Huelga bird, a four-tiered bird
that was previously identified with Cesar Chavez and the farm labor movement. Gang
members display graffiti or wear clothing and tattoos associated with these symbols.
Norteños may also identify with a specific gang clique such as the Hollister Norteño
gang, the Westside Locos, the Eastside Norteños, B.H.T., the Crestsiders, and the Hazel
Block gang.
       Deputy Mull testified that the main or primary purposes of the Norteño gang
include narcotics trafficking and selling. They also commit crimes such as murders and
assaults to strike fear into their own members and others.
              a. Gang Evidence as to Philip Garcia
       Deputy Mull opined that Garcia was a Norteño member based on his tattoos, his
clothing, his associations with other gang members, and his criminal behavior. Garcia
had tattoos of “Eastside” on his upper back and “E.S.S.J.” on his left hand, signifying his
association with Eastside San Jose. Deputy Mull testified that Eastside San Jose is a
“gang designated area” of San Jose. Garcia had a tattoo of a man with four dots under an
eye on his left forearm. Deputy Mull opined that this signified the number “14”. Garcia
also had a tattoo of a skull with clowns on his left forearm. Deputy Mull testified that
such tattoos sometimes have gang significance.
       Deputy Mull testified to five police reports of prior law enforcement contacts with
Garcia and others. On July 11, 2003, a Hollister police officer saw Garcia wearing a red
T-shirt and red sweats, and the officer observed a “XIV” shaped scar on Garcia’s
forearm. On December 6, 2003, an officer from the San Benito County Sheriff’s office
saw Garcia wearing a red shirt, black pants, and white shoes. On November 4, 2006, a
                                             8
Hollister police officer contacted Garcia together with two known Norteño gang
members. On July 25, 2010, police contacted Garcia with a woman who “commonly
associates with Norteño gang members.” On November 19, 2011, a Gilroy police officer
contacted Garcia with two other women, after which Garcia was charged and convicted
for felony possession of a firearm. However, Garcia was not charged with any gang
enhancement or gang-related offense in that incident.
       Law enforcement officers conducted a warrant search of Garcia’s residence.
Officers found various items of red clothing, including a white-and-red checkered shirt; a
pair of red sneakers with a San Francisco 49er logo; a black Cincinnati Reds hat with a
red “C”; and a black T-shirt with the writing “Everyday Cali Since Day One” in red
lettering. Officers also saw a red San Francisco 49ers logo on the wall.
              b. Gang Evidence as to Andrew Lanford
       Deputy Mull opined that Lanford was a Norteño member based on law
enforcement contacts with him, his tattoos, his clothing, and his past criminal behavior.
Lanford’s tattoos included “SIV” on his back, an “X4” on his right forearm, an “H” on
his left hand, and Aztec writing on his forehead. Deputy Mull opined that the Aztec
writing, spelled “IXPOL”, stood for “Northerner”, and the “H” stood for Hollister.
       Deputy Mull testified to numerous reports of prior police contacts with Lanford
and others. On July 29, 2003, Hollister police contacted Lanford together with two
known Norteño gang members. On May 10, 2003, a member of the San Benito County
Sheriff’s office documented Lanford throwing gang signs. On September 1, 2003,
Hollister police contacted Lanford together with a known Norteño gang member. On
March 15, 2004, Deputy Mull contacted Lanford and saw him wearing a San Francisco
49er sweater and a red belt with the letter “N” inscribed on the buckle. On March 22,
2004, Hollister police contacted Lanford together with a known Norteño gang member.
On May 26, 2004, Hollister police again contacted Lanford together with a known
Norteño gang member. On June 23, 2006, a deputy sheriff contacted Lanford with two
                                             9
other persons, one of whom was a Norteño associate. After an incident on November 24,
2004, Lanford was convicted for possession of a concealed weapon. On September 13,
2010, police contacted Lanford with a known Norteño gang member.
              c. Gang Evidence as to Vincent Pettie
       Deputy Mull opined that Pettie was a Norteño gang member based on his
associations with other Norteños, his tattoos, and his possession of gang-related clothing.
Pettie had a tattoo of “Hollis” on his chest, which Deputy Mull stated was short for
“Hollister.” Deputy Mull testified that gang members often get tattoos naming their
home towns. Pettie had a tattoo of a skull pointing a pistol, with a red bandana on the
skull’s face. Deputy Mull testified that the bandana had four dots on it, signifying the
number “14.” 5 Pettie had a tattoo of “V.H.” on his torso, which Deputy Mull testified
stood for Via Hermosa. Pettie also had a tattoo of an Aztec warrior on his right arm, but
Deputy Mull could not testify with certainty that it was a gang-related tattoo. Pettie also
had tattoos of the names of girlfriends or relatives.
       Deputy Mull testified to numerous prior police reports of Pettie associating with
other gang members or wearing red clothing. On October 24, 2003, police contacted
Pettie in a vehicle containing two red Nebraska Cornhusker baseball caps. Pettie was
wearing a red cloth belt. On October 14, 2004, police contacted Pettie with a known
Norteño. On November 11, 2004, police saw Pettie wearing a red jersey with a red shirt
underneath. On April 24, 2005, Deputy Mull and another officer detained Pettie and
other subjects. Pettie was wearing a red baseball cap with the letter “N”, and one of the
other subjects was a known Norteño. On October 21, 2005, police contacted Pettie with
two known Norteños. Pettie was wearing red clothing. On January 12, 2006, police
contacted Pettie with a known Norteño. On July 6, 2007, police documented Pettie
wearing a white baseball cap with a red “S.F.” on the cap. On October 15, 2010, police

       5
        A photograph of the tattoo shows the bandana has 27 dots in several clusters
of two or four.
                                             10
contacted Pettie with a Norteño member or associate. On May 18, 2011, police contacted
Pettie again with that member or associate. On May 21, 2012, police contacted Pettie
with another known Norteño member.
       In January 2013, a probation officer conducted a search of Pettie’s residence.
Deputy Mull testified that a number of clothing items found in Pettie’s bedroom were
gang-related. These included a black T-shirt with a picture of a hand in the shape of a
“W”; a black shirt with “187” on it; a black sports jersey with red sleeves; a black T-shirt
with the design of a woman wearing a black and red bandana and the word “Hustler” in
red; a San Francisco 49ers shirt showing “CalNiner” with the “N” in red; three San
Francisco Giants caps in red, white, and black; and a shirt that said “Nor Cali” with a red
star. The officer also found a blanket with the film character “Scarface” on it, a
photograph of Pettie wearing a red tank top, and several music CDs with gang-related
symbols and music.
       With respect to all three defendants, Deputy Mull also relied on the facts of the
instant offense to support his opinion that they were members of the Norteño gang.
       7. Gang Expert for Lanford
       Mark Harrison, a retired detective, testified as a gang expert on behalf of Lanford.
Harrison testified that many people who are not gang members or associates wear gang-
related clothing, display gang-related symbols, or listen to gang-related music. When
asked about a hypothetical set of facts similar to the alleged facts of the instant assault,
Harrison testified that the question of whether the fight was gang related would depend
on the motive for the assault. Harrison opined that if the assault happened because one
man was dating another man’s ex-wife, then the assault would not be gang related.
Similarly, Harrison opined that if the attacker was motivated by the fact that the ex-
husband had called the police on his wife, the assault would not be gang related.




                                              11
   B. Procedural Background
       The prosecution charged each defendant with six counts: Count 1—Attempted
murder (Pen. Code, §§ 187, subd. (a), 664) 6; Count 2—Assault with a firearm (§ 245,
subd. (a)(2)); Count 3—Dissuading a witness by force or threat (§ 136.1, subd. (c)(1));
Count 4—Dissuading a witness in furtherance of a conspiracy (§ 136.1, subd. (c)(2));
Count 5—Assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); and
Count 6—Active participation in a criminal street gang (§ 186.22, subd. (a)).
       As to each defendant on Counts 1 through 5, the prosecution alleged the offenses
were committed for the benefit of, at the direction of, and in association with a criminal
street gang. (§ 186.22, subds. (b)(1)(B), (b)(1)(C), & (b)(4).) As to each defendant on
Count 1, the prosecution alleged that a principal personally and intentionally discharged a
firearm. (§ 12022.53, subds. (c) & (e)(1).) As to Counts 3, 4, 5, and 6, the prosecution
alleged all defendants personally inflicted great bodily injury upon the victim.
(§ 12022.7, subd. (a).)
       As to both Pettie and Lanford, the prosecution alleged on all counts that a
principal was armed with a firearm (§ 12022, subd. (a)(1).)
       As to Lanford only, the prosecution further alleged on all counts that he had
suffered a prior prison term. (§ 667.5, subd. (b).)
       As to Garcia only, the prosecution alleged that he carried a firearm on his person
or in a vehicle (§12021.5, subd. (a)); and as to Counts 2 and 6, that he personally used a
firearm (§ 12022.5, subds. (a) & (d)).
       A jury was sworn on April 25, 2014, and opening arguments were held on
April 28. On May 2, 2014, the jury found defendants guilty on all counts and found true
all special allegations.




       6
           Subsequent undesignated statutory references are to the Penal Code.
                                             12
       As to each defendant, the trial court imposed an indeterminate term of seven years
to life on Count 4. (§ 186.22, subd. (b)(4)(C).) As to both Lanford and Pettie, the court
imposed a determinate term of 29 years, composed of the upper term of nine years on
Count 1 consecutive to 20 years for the firearm enhancement. (§ 12022.53, subds. (c) &
(e)(1).) As to Garcia, the court imposed a determinate term of 42 years, composed of the
upper term of nine years on Count 1 consecutive to terms of 20 years for personally
discharging a firearm (§ 12022.53, subd. (c)), 10 years for the gang enhancement
(§ 186.22, subd. (b)(1)(C)), and three years for carrying a firearm (§ 12021.5, subd. (a)).
The court granted the prosecution’s motion to dismiss Count 6 in its entirety, and the
court stayed all remaining terms under section 654. The court did not specifically state
whether the indeterminate terms were consecutive to the determinate terms.
                                        II. DISCUSSION
   A. The Denial of Defendants’ Motion to Bifurcate the Gang Charges
       All three defendants contend the trial court erred in denying their pretrial motions
to bifurcate the gang charges and enhancements. Defendants argue that the introduction
of irrelevant, unreliable, and inflammatory evidence contravened state law rules of
evidence and violated their constitutional rights to due process and a fair trial. The
Attorney General contends the court properly denied the motions to bifurcate because the
gang-related evidence was an integral part of the prosecution’s case in proving motive
and the victim’s reluctance to testify. We conclude the trial court did not abuse its
discretion by denying the motions to bifurcate, and the introduction of gang-related
evidence did not render the trial unfair.
       1. Procedural Background
       Garcia moved pretrial to bifurcate the substantive gang charge (Count 6) and all
gang enhancements. He argued the evidence would be unduly prejudicial and lacking in
probative value with respect to the remaining charges because the latter were not gang
related. Pettie and Lanford joined the motion. The trial court denied the motion.
                                             13
       After the close of evidence, the trial court instructed the jury consistent with
CALCRIM No. 1403 as follows: “In this case there’s been evidence of gang activity.
You may consider that evidence only for the limited purpose of deciding whether the
defendant acted with the intent, purpose and knowledge that are required to prove the
gang-related crimes and/or enhancement. [¶] You may not consider that evidence for
any other purpose. You may not conclude from the evidence that the defendant is a
person of bad character or that he has a disposition to commit crimes.”
       2. Legal Principles
       As the Attorney General notes, defendants use the term “bifurcate” in referencing
both the substantive gang participation charge in Count 6 as well as the enhancements.
Courts generally refer to “severance” when separating a trial on charged offenses.
Although there is much overlap in the rules governing severance and bifurcation, the laws
and purposes regarding each are somewhat distinct. (See People v. Hernandez (2004)
33 Cal.4th 1040, 1050 (Hernandez) [comparing severance and bifurcation].) Because the
parties moved below to separate the trial on both the enhancements and the substantive
gang-related charge, we will consider defendants’ claim as an appeal from a denial of a
motion to sever Count 6 and bifurcate the enhancements.
       Section 954 governs the joinder of multiple charges in a single accusatory
pleading. “An accusatory pleading may charge two or more different offenses connected
together in their commission . . . or two or more different offenses of the same class of
crimes or offenses . . . .” (§ 954.) However, the trial court “in the interests of justice and
for good cause shown, may in its discretion order that the different offenses or counts set
forth in the accusatory pleading be tried separately or divided into two or more groups
and each of said groups tried separately.” (Ibid.) “When . . . the statutory requirements
for joinder are met, a defendant must make a clear showing of prejudice to establish that
the trial court abused its discretion in denying the defendant’s severance motion.
[Citations.] In determining whether there was an abuse of discretion, we examine the
                                              14
record before the trial court at the time of its ruling. [Citation.] The factors to be
considered are these: (1) the cross-admissibility of the evidence in separate trials;
(2) whether some of the charges are likely to unusually inflame the jury against the
defendant; (3) whether a weak case has been joined with a strong case or another weak
case so that the total evidence may alter the outcome of some or all of the charges; and
(4) whether one of the charges is a capital offense, or the joinder of the charges converts
the matter into a capital case.” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161
(Mendoza).) “Even if a trial court’s severance or joinder ruling is correct at the time it
was made, a reviewing court must reverse the judgment if the ‘defendant shows that
joinder actually resulted in “gross unfairness” amounting to a denial of due process.’
[Citation.]” (Id. at p. 162.) “[E]rror involving misjoinder ‘affects substantial rights’ and
requires reversal . . . [if it] results in actual prejudice because it ‘had substantial and
injurious effect or influence in determining the jury’s verdict.’ ” (U.S. v. Lane (1986)
474 U.S. 438, 449.) The defendant must demonstrate a reasonable probability that the
joinder affected the jury’s verdicts. (People v. Bean (1988) 46 Cal.3d 919, 938-940.)
       “[A] trial court has the discretion, in a jury trial, to bifurcate the determination of
the truth of an alleged prior conviction from the determination of the defendant’s guilt of
the charged offense, but is not required to do so if the defendant will not be unduly
prejudiced by having the truth of the alleged prior conviction determined in a unitary
trial.” (People v. Calderon (1994) 9 Cal.4th 69, 72.) However, “[a] prior conviction
allegation relates to the defendant’s status and may have no connection to the charged
offense; by contrast, the criminal street gang enhancement is attached to the charged
offense and is, by definition, inextricably intertwined with that offense. So less need for
bifurcation generally exists with the gang enhancement than with a prior conviction
allegation.” (Hernandez, supra, 33 Cal.4th at p. 1048.)
       “This is not to say that a court should never bifurcate trial of the gang
enhancement from trial of guilt.” (Hernandez, supra, 33 Cal.4th at p. 1049.) “But
                                               15
evidence of gang membership is often relevant to, and admissible regarding, the charged
offense. Evidence of the defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices, criminal enterprises,
rivalries, and the like—can help prove identity, motive, modus operandi, specific intent,
means of applying force or fear, or other issues pertinent to guilt of the charged crime.
[Citations.] To the extent the evidence supporting the gang enhancement would be
admissible at a trial of guilt, any inference of prejudice would be dispelled, and
bifurcation would not be necessary.” (Id. at pp. 1049-1050.) “[W]hen the evidence
sought to be severed relates to a charged offense, the ‘burden is on the party seeking
severance to clearly establish that there is a substantial danger of prejudice requiring that
the charges be separately tried. [Citations.]’ ” (Id. at p. 1050.)
       3. Denial of the Motion to Bifurcate or Sever Was Not an Abuse of Discretion
       We first consider whether the trial court should have severed the substantive gang
participation charge (Count 6) from the remaining charges. For the purposes of this
analysis, we will assume the trial court also would have bifurcated the gang-related
enhancements in the event it had granted the motion to sever. In other words, we will
consider the cross-admissibility of the gang evidence as a whole with respect to the non-
gang charges and allegations in Counts 1 through 5.
       It is undeniable that the introduction of gang-related evidence presents a danger of
undue prejudice. “We have recognized that admission of evidence of a criminal
defendant’s gang membership creates a risk the jury will improperly infer the defendant
has a criminal disposition and is therefore guilty of the offense charged.” (People v.
Williams (1997) 16 Cal.4th 153, 193.) “[E]ven where gang membership is relevant,
because it may have a highly inflammatory impact on the jury, trial courts should
carefully scrutinize such evidence before admitting it.” (Ibid.) Some gang evidence
relating to defendants “may be so extraordinarily prejudicial, and of so little relevance to


                                             16
guilt, that it threatens to sway the jury to convict regardless of the defendant’s actual
guilt.” (See Hernandez, supra, 33 Cal.4th at p. 1049 [in the context of bifurcation].)
       Here, however, evidence of gang membership was probative to the charges in
Counts 1 through 5 in three respects. First, three of the prosecution’s witnesses—
including the victim, most significantly—testified that they could not recall many details
about the night of the assault, and they denied having made numerous statements to the
police about the incident. Delgadillo denied he had been told not to testify, but admitted
he had been “living watching over my shoulder” and expressed concerned for the
wellbeing of his family. Evidence of defendants’ gang involvement was therefore
probative to explain why a witness might be reluctant or afraid to testify against them.
(See People v. Harris (1985) 175 Cal.App.3d 944, 957 [evidence of gang membership
was relevant on possible threats to prosecution witnesses, resulting in obvious bias during
testimony].)
       Second, evidence of gang membership was probative to show defendants’ motive
for assaulting Delgadillo, particularly as to Lanford and Pettie. The record holds no
evidence that Lanford and Pettie had any involvement in Delgadillo’s child custody
dispute or the incident that caused him to contact the police. The prosecution’s theory
was that Lanford and Pettie participated in the retaliatory assault as part of a gang-
motivated “beat down.” To support this theory, the prosecution introduced the testimony
of Deputy Mull that gang members are expected and obligated to participate in such
assaults on behalf of a fellow gang member. Deputy Mull testified that if a gang member
refuses to participate in such an attack, that member risks being attacked by his or her
fellow gang members. Evidence of defendant’s gang membership thereby supplied a
motive for Lanford and Pettie to participate in the assault on Delgadillo apart from the
prior disputes between Delgadillo and Garcia. (Hernandez, supra, 33 Cal.4th at p. 1049
[evidence of gang affiliation can help prove identity and motive].)


                                              17
       Third, the prosecution charged defendants with acting in furtherance of a
conspiracy, in which defendants are liable for acts committed as a natural and probable
consequence of the conspiracy. The trial court instructed the jury that a natural and
probable consequence is one that a reasonable person would know is likely to happen
under the circumstances. Deputy Mull testified that gang members engaged in “beat
down” attacks would know and understand in advance that the possible outcomes of the
attack include murdering the victim. In closing, the prosecution argued that a gang
member “knows that anything from a beat down to a murder can happen. You heard the
Judge talk about natural and probable consequences. That’s what we’re talking about.”
Accordingly, evidence of defendants’ gang membership was relevant to show their state
of mind regarding the consequences of the conspiracy. (Hernandez, supra, 33 Cal.4th at
p. 1049 [evidence of gang affiliation can help prove specific intent].)
       Additionally, the prosecution and its expert witness relied on defendants’
commission of the assault as a potential predicate offense to establish the existence of a
criminal street gang under subdivision (e)(1) of section 186.22. Evidence of the assault
was therefore relevant to show the defendants were active participants in a gang as
charged in Count 6.
       For all these reasons, evidence of defendants’ gang membership was cross-
admissible to prove the commission of the attempted murder and assault charges.
Similarly, evidence of the attempted murder and assault charges was cross-admissible to
prove defendants’ active participation in a criminal street gang. And while gang-related
evidence is necessarily inflammatory to some degree, the gang evidence presented here
was substantially outweighed by its probative value. The trial court properly instructed
the jury on the limited uses of gang-related evidence, and absent some showing to the
contrary, we assume the jury adhered to those instructions. Moreover, joinder of charges
here did not constitute “a weak case . . . joined with a strong case or another weak case”
such that the total evidence might “alter the outcome of some or all of the charges.”
                                             18
(Mendoza, supra, 24 Cal.4th at p. 161.) Nor did any of the charges involve a capital
offense. Based on the factors set forth in Mendoza, we conclude the court did not err in
denying any motion to sever. We further conclude joinder did not result in such “gross
unfairness” as to result in a denial of due process.
       Given that Count 6 was properly joined with Counts 1 through 5, defendants
cannot show cause for the bifurcation of the gang-related enhancements. “To the extent
the evidence supporting the gang enhancement would be admissible at a trial of guilt, any
inference of prejudice would be dispelled, and bifurcation would not be necessary.”
(Hernandez, supra, 33 Cal.4th at pp. 1049-1050.) “When the offenses are joined for trial
the defendant’s guilt of all the offenses is at issue and the problem of confusing the jury
with collateral matters does not arise.” (Id. at p. 1050.)
       In support of their argument for bifurcation, defendants rely on People v. Albarran
(2007) 149 Cal.App.4th 214, 217 (Albarran). The Attorney General accurately points out
that Albarran did not involve a substantive gang charge, as this case does. For that
reason alone, Albarran is inapposite. Nonetheless, even assuming the prosecution had
not charged Count 6, we conclude for the reasons above that the gang-related evidence
was sufficiently probative to the remaining counts to outweigh whatever danger of
prejudice the evidence presented. Evidence of defendant’s gang involvement was highly
probative to their motive for mounting the assault, their state of mind as to the
consequences of the assault, and the possibility of bias in the testimony of three reluctant
witnesses. In Albarran, by contrast, the court found insufficient evidence to support the
prosecution’s claim that the underlying offenses were motivated by a desire to gain
respect and enhance the defendant’s reputation within the gang. (Id. at p. 227.)
Furthermore, the prosecution in that case presented a large volume of extremely
inflammatory and incriminating gang evidence that had no connection to the charged
crimes. (Id. at pp. 227-228.) Albarran is therefore distinguishable from this case, in
which the gang-related evidence was comparatively less inflammatory.
                                             19
       Defendants have not shown that the reasons supporting admission of the evidence
were outweighed by a substantial danger of under prejudice. We conclude the trial court
did not abuse its discretion in denying defendants’ motion to sever or bifurcate, and the
introduction of gang-related evidence did not violate defendants’ due process rights.
   B. Sufficiency of the Evidence Supporting the Gang Charges and Allegations
       Defendants contend the evidence was insufficient to support convictions and true
findings on the gang-related charges and allegations. The central thrust of their argument
is that the prosecution failed to prove the existence of a criminal street gang under section
186.22 and Prunty, supra, 62 Cal.4th 59. Lanford further contends the prosecution failed
to present sufficient evidence to show the offenses were committed in association with or
for the benefit of the gang. The Attorney General argues that the prosecution presented
substantial evidence to show the Norteño gang constitutes a unitary criminal street gang
and that defendants committed the offenses for the benefit of the gang.
       We conclude the record holds sufficient evidence to establish the Norteños as a
criminal street gang under section 186.22 and that defendants committed the offenses for
the benefit of that gang.
       1. Legal Principles
       “In reviewing the sufficiency of evidence under the due process clause of the
Fourteenth Amendment to the United States Constitution, the question . . . is ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia
(1979) 443 U.S. 307, 319.) The California Constitution requires the same standard.
(Ibid.) “In determining whether a reasonable trier of fact could have found defendant
guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light
most favorable to respondent and presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ ” (People v. Johnson
                                             20
(1980) 26 Cal.3d 557, 576.) This standard applies even when the prosecution relies
primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)
       Section 186.22 defines a “criminal street gang” as “any ongoing organization,
association, or group of three or more persons, whether formal or informal, having as one
of its primary activities the commission” of one or more certain enumerated offenses,
“having a common name or common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern of criminal gang
activity.” (§ 186.22, subd. (f).) Subdivisions (e) and (j) of that section further define “a
pattern of gang activity” by the commission of certain predicate offenses by two or more
persons on separate occasions within certain time periods.
       The statute “requires that the gang the defendant sought to benefit, the individuals
that the prosecution claims constitute an ‘organization, association, or group,’ and the
group whose actions the prosecution alleges satisfy the ‘primary activities’ and predicate
offense requirements of section 186.22(f), must be one and the same.” (Prunty, supra,
62 Cal.4th at pp. 75-76.) The requirement of an “organization, association, or group []
calls for evidence that an organizational or associational connection unites the ‘group’
members. When . . . the prosecution relies on the conduct of subsets to show a criminal
street gang’s existence, the prosecution must show a connection among those subsets, and
also that the gang those subsets comprise is the same gang the defendant sought to
benefit.” (Id. at p. 85.) “That connection may take the form of evidence of collaboration
or organization, or the sharing of material information among the subsets of a larger
group. Alternatively, it may be shown that the subsets are part of the same loosely
hierarchical organization, even if the subsets themselves do not communicate or work
together. And in other cases, the prosecution may show that various subset members
exhibit behavior showing their self-identification with a larger group, thereby allowing
those subsets to be treated as a single organization.” (Id. at p. 71.) “[I]t is not enough . . .
that the group simply shares a common name, common identifying symbols, and a
                                              21
common enemy. Nor is it permissible for the prosecution to introduce evidence of
different subsets’ conduct to satisfy the primary activities and predicate offense
requirements without demonstrating that those subsets are somehow connected to each
other or another larger group.” (Id. at p. 72.)

       2. The Evidence Was Sufficient to Establish the Norteños as a Criminal Street
          Gang and to Prove the Related Enhancements
       The prosecution’s theory was that the Norteño gang was the criminal street gang at
issue for purposes of section 186.22. Defendants claim the prosecution failed to show the
Norteño gang is a unitary criminal street gang as opposed to a group of separate cliques
or subset gangs that “operate under the general umbrella of Norteños.” Defendants are
correct that Deputy Mull identified geographically distinct cliques with whom Norteños
associate, such as the Hollister Norteño gang, the Westside Locos, the Eastside Norteños,
B.H.T., the Crestsiders, and the Hazel Block gang. But Deputy Mull also testified that
the Norteños as a whole constituted a criminal street gang under section 186.22, and he
testified to the various elements required to prove a criminal street gang under the statute.
       Specifically, Deputy Mull testified that the Norteño gang consisted of at least
500 members in California whose primary purpose is to engage in a pattern of criminal
activity and to make money through acts of criminal behavior. He testified that one of
their main purposes is the trafficking and selling of narcotics, and they commit crimes
such as murder and assault to control their own members and strike fear into others. This
testimony was sufficient to establish the Norteños as a “group of three or more
persons . . . having as one of its primary activities the commission” of certain offenses
enumerated in subsection (e) of section 186.22. (See § 186.22, subds. (e)(3) [homicide or
manslaughter], & (e)(4) [drug trafficking]). Lanford contends Deputy Mull’s testimony
on the gang’s primary activities was “conclusory and unexplained,” but under the
standard of review required here, we conclude a reasonable jury could have found
sufficient proof of the gang’s primary activities.

                                             22
       Deputy Mull also testified that Norteños identify with the color red, the number
“14”, the Roman number “XIV”, the letter “N”, and the symbol of the Huelga bird. He
testified that Norteños display graffiti or wear clothing and tattoos associated with these
symbols. This testimony was sufficient to establish that Norteños have “a common
identifying sign or symbol.” (§ 186.22, subd. (f).)
       Deputy Mull further testified to numerous qualifying predicate offenses committed
by Norteño members—who were not identified as members of any subset—in the three
years preceding trial. This list included the instant offenses. (People v. Olguin (1994)
31 Cal.App.4th 1355, 1383 [the charged offense can be considered as part of the pattern
of criminal gang activity].) Lanford complains that the offenses were only “sparsely
described,” but nothing in the statute requires the prosecution to establish the underlying
facts or details of the predicate offenses apart from the dates and the fact that they were
committed by the specified gang members.
       Defendants contend that the prosecution could not demonstrate the existence of
the Norteños as a unitary criminal street gang. The Prunty court, however, specifically
declined to hold that a broader “umbrella” group such as the Norteños or Sureños could
not constitute a criminal street gang under section 186.22. “[N]othing in this opinion
reflects any skepticism regarding the general factual question of whether the Norteños
exist . . . . We have previously upheld gang enhancements where the ‘criminal street
gang’ in question was a geographically dispersed group. [Citation.] While we find the
evidence here insufficient, nothing in our opinion reflects doubt that prosecutors can
prove the existence of such a criminal street gang when the evidence supports such a
conclusion.” (Prunty, supra, 62 Cal.4th at p. 85.) The court held that Prunty’s
requirements only apply “where the prosecution’s theory of why a criminal street gang
exists turns on the conduct of one or more gang subsets, not simply to those in which the
prosecution alleges the existence of ‘a broader umbrella gang.’ ” (Id. at p. 71, fn. 2.)


                                             23
       Defendants contend that, under Prunty, the prosecution was required to show
some nexus between the Norteño gang and the cliques or subset gangs identified by
Deputy Mull. But the issue of establishing a nexus between subsets arose in Prunty only
because the prosecution’s expert in that case failed to present evidence showing the
different subsets were connected to each other or to the broader Norteño gang. (See
Prunty, supra, 62 Cal.4th at p. 91 [the issue arises “only when the prosecution seeks to
prove a street gang enhancement by showing the defendant committed a felony to benefit
a broader umbrella gang, but seeks to prove the requisite pattern of criminal gang activity
with evidence of felonies committed by members of subsets to the umbrella gang,” conc.
opn. of Corrigan, J.].) Here, by contrast, the prosecution’s case hinged on proving the
existence of Norteños as a unitary gang under section 186.22. Furthermore, the
prosecution’s theory was that the defendants were Norteños, not members of a subset
gang. The prosecution’s expert testified to the primary activities of the Norteño gang as a
whole. (See People v. Margarejo (2008) 162 Cal.App.4th 102, 108 [expert’s testimony
as to primary activities of the gang constituted sufficient evidence].) And the predicate
offenses were all committed by Norteño members for the benefit of that gang, not for the
benefit of any subset gang. (See People v. Ewing (2016) 244 Cal.App.4th 359, 372
[Prunty does not apply where the prosecution does not proffer the predicate crimes of
subset gang members to prove the existence of a criminal street gang].)
       Given the definition of a criminal street gang in section 186.22, subdivision (f), we
conclude the prosecution presented sufficient evidence to establish the existence of such a
gang. Although the prosecution also presented evidence of other Norteño cliques, neither
the existence of these cliques nor the connections between them were necessary to prove
the gang-related charges and allegations in this case. Even assuming the prosecution was
required to prove associational or organizational connections, the prosecution’s expert
did so. For example, Deputy Mull testified to the hierarchical structure of the gang,
headed by the “top leaders” functioning from inside prisons to “get their word out” to the
                                            24
Norteño gang members on the street. He added that if the “lower echelon” gang
members began creating problems with other gangs, “they’re going to be dealt with.” He
further testified that the “higher-ups” may order lower level members to assault fellow
members within the gang for failure to obey orders. (See Prunty, supra, 62 Cal.4th at
p. 71 [prosecution may satisfy requirement of organizational connection by showing that
the subsets are part of the same loosely hierarchical organization].)
       Lanford contends the prosecution failed to present sufficient evidence to show the
offenses were committed in association with, at the direction of, or for the benefit of a
gang. He describes the expert’s testimony as “conjecture and surmise” and contends the
mere fact that two or more gang members were involved does not prove the offense was
committed in association with or for the benefit of a gang. The Attorney General
contends the evidence was sufficient to show the commission of the assault was intended
to assist in the criminal conduct of other gang members.
       To prove the enhancement with respect to an offense, the prosecution must show
that offense was “committed for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) “The enhancement
. . . requires proof that the defendant commit a gang-related crime in the first prong—i.e.,
that the defendant be convicted of a felony committed for the benefit of, at the direction
of, or in association with a criminal street gang. [Citation.] There is no further
requirement that the defendant act with the specific intent to promote, further, or assist a
gang; the statute requires only the specific intent to promote, further, or assist criminal
conduct by gang members.” (People v. Albillar (2010) 51 Cal.4th 47, 67.)
       When presented with the facts of a hypothetical assault similar to the facts alleged
in the instant assault, Deputy Mull opined that the offense would be committed for the
benefit of the gang. He testified that the act would instill fear in others and demonstrate
the gang members’ allegiance to each other. He further testified that gang members’
                                             25
willingness to commit crimes enhances the reputation of the gang as well as the
reputation of the members who commit the crimes. He added that when the gang
commits an act of violence, the enhanced reputation for violence “speaks loudly” to
members of the community. This testimony constituted sufficient evidence from which
the jury could reasonably infer the offense was committed for the benefit of the Norteño
gang. Furthermore, the evidence was sufficient to show that defendants acted in concert
with each other in conducting the assault. The jury could infer that Lanford lured
Delgadillo outside for the purpose of assisting Garcia and Pettie in the ambush, all in
retribution for the act of calling the police. Thus, the jury could reasonably infer that
defendants acted with the intent to further or assist criminal conduct by fellow gang
members.
       Defendants rely on the testimony of their own gang expert, who opined under
certain hypothetical circumstances that the offense would not have been committed for
the benefit of the gang. In assessing the sufficiency of evidence on appeal, however, the
reviewing court does not weigh the credibility of dueling experts. “ ‘Generally, “doubts
about the credibility of [an] in-court witness should be left for the jury’s resolution.” ’
[Citation.] ‘Except in . . . rare instances of demonstrable falsity, doubts about the
credibility of the in-court witness should be left for the jury’s resolution.’ [Citation.]”
(People v. Hovarter (2008) 44 Cal.4th 983, 996.)
       For the reasons above, we conclude the prosecution presented sufficient evidence
to prove the existence of a criminal street gang and the remaining elements required by
section 186.22. 7 Accordingly, these claims are without merit.
   C. Sufficiency of the Evidence Supporting the Convictions for Attempted Murder
       Lanford and Pettie contend the evidence was insufficient to support their
convictions for attempted murder. The Attorney General contends the prosecution

       7
       The evidence was sufficient even without the testimonial hearsay that should
have been excluded for the reasons set forth in section II.F below.
                                              26
presented substantial evidence from which a reasonable jury could have found them
guilty under theories or aiding and abetting or natural and probable consequences. We
conclude the evidence was sufficient to support the convictions for attempted murder.
       1. Legal Principles
       “Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. [Citations.] To be
guilty of a crime as an aider and abettor, a person must ‘aid[ ] the [direct] perpetrator by
acts or encourage[ ] him [or her] by words or gestures.’ [Citations.]” (People v. Lee
(2003) 31 Cal.4th 613, 623.) Under a direct theory of aiding and abetting, “the person
must give such aid or encouragement ‘with knowledge of the criminal purpose of the
[direct] perpetrator and with an intent or purpose either of committing, or of encouraging
or facilitating commission of,’ the crime in question. [Citations.] When the crime at
issue requires a specific intent, in order to be guilty as an aider and abettor the person
‘must share the specific intent of the [direct] perpetrator,’ that is to say, the person must
‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[ ]
aid or encouragement with the intent or purpose of facilitating the [direct] perpetrator’s
commission of the crime.’ [Citation.] Thus, to be guilty of attempted murder as an aider
and abettor, a person must give aid or encouragement with knowledge of the direct
perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s
accomplishment of the intended killing—which means that the person guilty of attempted
murder as an aider and abettor must intend to kill. [Citation.]” (Id. at p. 624.)
       An aider and abettor may also be indirectly liable under the theory of natural and
probable consequences. “ ‘A person who knowingly aids and abets criminal conduct is
guilty of not only the intended crime [target offense] but also of any other crime the
perpetrator actually commits [nontarget offense] that is a natural and probable
consequence of the intended crime. The latter question is not whether the aider and
abettor actually foresaw the additional crime, but whether, judged objectively, it was
                                              27
reasonably foreseeable. [Citation.]’ [Citation.] Liability under the natural and probable
consequences doctrine ‘is measured by whether a reasonable person in the defendant’s
position would have or should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.’ [Citation.] ‘[A]lthough variations
in phrasing are found in decisions addressing the doctrine—‘probable and natural,’
‘natural and reasonable,’ and ‘reasonably foreseeable’—the ultimate factual question is
one of foreseeability.’ [Citation.] Thus, ‘ “[a] natural and probable consequence is a
foreseeable consequence”. . . .’ [Citation.] But ‘to be reasonably foreseeable “[t]he
consequence need not have been a strong probability; a possible consequence which
might reasonably have been contemplated is enough . . . .” [Citation.]’ [Citation.] A
reasonably foreseeable consequence is to be evaluated under all the factual circumstances
of the individual case [citation] and is a factual issue to be resolved by the jury.
[Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina).)
       2. The Evidence Was Sufficient to Support Convictions for Attempted Murder
       The prosecution argued that Garcia attempted to murder Delgadillo. The
prosecution presented evidence that Garcia pointed a gun at Delgadillo’s face and fired
multiple shots after Delgadillo fled. A jury could reasonably infer from this evidence that
Garcia harbored an intent to kill and took a “direct but ineffectual act” to accomplish the
killing. The record holds no evidence, however, that Lanford or Pettie fired gunshots at
Delgadillo. Nor did the prosecution argue that the “beat down” part of the assault—the
beating of Delgadillo prior to the shooting—constituted attempted murder. As to Lanford
and Pettie, the prosecution’s main theory was that the attempted murder was a natural and
probable consequence of the assault and dissuasion offenses. The trial court also
instructed the jury on aiding and abetting. A reasonable jury could have found sufficient
evidence to convict Lanford and Pettie under either theory.
       According to Deputy Mull’s recounting of Delgadillo’s statements, Delgadillo was
at his cousin’s house watching football when Lanford began asking Delgadillo about
                                              28
calling the police on Garcia. Lanford then went briefly outside. When he returned, he
invited Delgadillo back outside to smoke a cigarette. Lanford continued to question him
about calling the police. When they got outside, Delgadillo saw Garcia, Pettie, and
another man, whereupon Delgadillo was called a “cop caller” and the assault began. The
jury could reasonably infer from this evidence that Lanford was coordinating the assault
in advance when he briefly stepped outside, ensuring that Garcia and Pettie would be
waiting for Delgadillo. The jury could also infer that defendants did so for the purpose of
retaliating against Delgadillo and discouraging him from cooperating with law
enforcement again in the future. Deputy Mull further testified that when gang members
participate in such an assault, they expect and know that the attack could result in a
murder. From this evidence, a reasonable jury could infer that attempted murder was a
reasonably foreseeable consequence of the plan to assault and dissuade Delgadillo. (See
Medina, supra, 46 Cal.4th at p. 922 [a rational trier of fact could have found that the
shooting of the victim was a reasonably foreseeable consequence of gang assault].) A
jury could also reasonably infer that Lanford and Pettie, by participating in the assault on
Delgadillo, encouraged Garcia to fire gunshots with the intent to facilitate his
commission of attempted murder.
       For the reasons above, we conclude this claim is without merit. 8
   D. Sufficiency of the Evidence Supporting the Convictions for Dissuasion
       Defendants contend the evidence was insufficient to support their convictions for
dissuading a witness by force in Count 3 (§ 136.1, subd. (c)(1)) and dissuading a witness
in furtherance of a conspiracy in Count 4 (§ 136.1, subd. (c)(2)). The Attorney General
contends substantial evidence supported the convictions.
       Section 136.1 prohibits, in part, any attempt to prevent or dissuade a witness to a
crime from making a report of it to a police officer. (§ 136.1, subd. (b)(1).) As relevant

       8
       The evidence was sufficient even without the testimonial hearsay that should
have been excluded for the reasons set forth in section II.F below.
                                             29
here, “witness” means “any natural person . . . having knowledge of the existence or
nonexistence of facts relating to any crime” or “who would be believed by any reasonable
person” to be such an individual. (§ 136, subd. (2).) Subdivision (c)(1) of section 136.1
punishes any person who knowingly and maliciously commits this offense by force or by
an express or implied threat of force or violence. “ ‘There is, of course, no talismanic
requirement that a defendant must say “Don’t testify” or words tantamount thereto, in
order to commit the charged offenses. As long as his words or actions support the
inference that he . . . attempted by threat of force to induce a person to withhold
testimony [citation], a defendant is properly’ convicted of a violation of section 136.1,
subdivision (c)(1).” (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344, quoting
People v. Thomas (1978) 83 Cal.App.3d 511, 514.) Subdivision (c)(2) punishes any
person who knowingly and maliciously commits the offense in furtherance of a
conspiracy. 9
       Defendants point out that the record holds no evidence that law enforcement was
conducting any ongoing or pending child abuse case against Garcia at the time of the
assault on Delgadillo. Defendants contend the only evidence of an attempt by Delgadillo
to report to the police had already happened, such that the evidence could only show
defendants were punishing him for making a past report. But given the evidence that
Lanford questioned Delgadillo about calling the police and the evidence he was called a
“cop caller” just before the attack, a jury could reasonably infer defendants were
attempting to prevent him from making future reports to the police. Section 136.1
punishes the mere attempt to dissuade; the prosecution was not required to show the
existence of an ongoing proceeding, nor that defendants successfully prevented any such
efforts. Proof of an attempt to prevent any future report to the police was sufficient to
satisfy the statute. (See People v. Wahidi (2013) 222 Cal.App.4th 802, 806 [if the

       9
        Section 136.1 prohibits other forms of dissuasion as well, but the trial court
did not instruct the jury on them.
                                             30
defendant’s actions or statements are ambiguous, but reasonably may be interpreted as
intending to achieve the future consequence of dissuading the witness from testifying, the
offense has been committed]; People v. Mendoza, supra, 59 Cal.App.4th at pp. 1344-
1345 [the defendant’s words not only expressed dissatisfaction with witness’s past
testimony but also attempted to dissuade her from giving any further testimony in the
future].) Similarly, Garcia contends he could not have intended to prevent Delgadillo
from making future reports because Delgadillo had already called the police, but a jury
could reasonably infer defendants intended to prevent him from making any additional
reports. We conclude defendants’ convictions on Counts 3 and 4 were supported by
substantial evidence.
       Defendants further contend the evidence was insufficient to prove they made
“discrete felonious threats.” Relying on People v. Anaya (2013) 221 Cal.App.4th 252
(Anaya), defendants contend substantial evidence of discrete felonious threats was
required to support imposition of a life term under section 186.22, subdivision (b)(4)(C)
(subdivision (b)(4)(C)). That subdivision imposes a term of seven years to life for
extortion or for “threats to victims and witnesses, as defined in Section 136.1” when the
offense is committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(4)(C).)
       In Anaya, the defendants were convicted of, among other things, extortion under
section 518 and dissuading a witness under subdivision (b)(1) of section 136.1. The jury
also found the offenses were committed for the benefit of a gang. The trial court imposed
life terms on both counts based on subdivision (b)(4)(C). As to the dissuasion count,
however, the prosecution did not allege, and the jury did not find, that the offense
involved any express or implied threat of force. The court expressly noted that the
defendants were not convicted under subdivision (c)(1) of section 136.1. (Anaya, supra,
221 Cal.App.4th at p. 271.) Because the offense did not involve “threats to victims and
witnesses” as required by subdivision (b)(4)(C), the court of appeal held the trial court
erred by imposing the enhanced term. (Anaya, supra, 221 Cal.App.4th at p. 271.)
                                             31
       The court of appeal then turned to the term imposed for the extortion count. The
court noted that the conviction for extortion under section 518 required the jury to find
“the use of force or fear induced by threat.” (Anaya, supra, 221 Cal.App.4th at p. 272.)
The court further noted that the subdivision (b)(4)(C) life term applies to extortion under
section 519, which defines fear induced by threat. From these observations, the court
inferred that the Legislature intended for the subdivision (b)(4)(C) life term to apply
when the offense involves a threat, but not when it involves a use of force absent any
threat. The court rejected the Attorney General’s argument that this would result in
absurd results by punishing threats more harshly than the actual use of force. The court
held that “reserving the seven year-to-life term for the crime of extortion that involves a
threat comports with the Legislature’s desire to punish that threat more harshly. The use
of force only, on the other hand, could amount to nothing more than a battery. Therefore,
we believe the Legislature intended extortion committed via a felonious threat to be
treated more harshly than extortion by simple force.” (Id. at p. 273.) Because the jury
could have convicted the defendants of extortion based the use of force without a finding
of fear induced by threat, the court vacated the enhanced sentence.
       Defendants contend the same logic requires us to vacate the life terms imposed on
Counts 3 and 4 under subdivision (b)(4)(C). As described above, the trial court imposed
terms of seven years to life on both counts, but the court stayed the term as to Count 3.
As to Count 4 (dissuasion in furtherance of a conspiracy), defendants are correct. The
Attorney General concedes the point, and the concession is well taken. The conviction
on Count 4 did not require the jury to make any finding of any “threats to victims and
witnesses.” And as a matter of law, the plain language referencing “threats” in
subdivision (b)(4)(C) does not encompass those offenses defined under section 136.1 that
do not include the element of threat. (People v. Lopez (2012) 208 Cal.App.4th 1049,
1065.) Accordingly, the sentence imposed on Count 4 must be vacated.


                                             32
       As to Count 3, Anaya is not squarely on point. In Anaya, the defendants were not
convicted under subdivision (c)(1) of section 136.1. (Anaya, supra, 221 Cal.App.4th at
p. 271.) Defendants here were convicted under that subdivision in Count 3. Subdivision
(c)(1) expressly punishes dissuasion where “the act is accompanied by force or by an
express or implied threat of force or violence . . . .” (§ 136.1, subd. (c)(1).) The trial
court instructed the jury with CALCRIM No. 2623, requiring the jury to find that “the
defendant used force or threatened either directly or indirectly to use force or violence on
the person or property of a witness.” Subdivision (b)(4)(C) imposes the life term if the
offense constitutes “threats to victims and witnesses, as defined in Section 136.1.” That
phrase includes acts of force like the assault alleged here, particularly where the assault
was accompanied by verbal utterances—e.g., “cop caller”—that referenced the victim’s
act of reporting to the police. Based on this evidence, the jury reasonably could have
found that the use of force also constituted an implied threat of further force in the future.
We conclude that substantial evidence would have supported a true finding under
subdivision (b)(4)(C). 10
       Defendants further contend the life term under subdivision (b)(4)(C) was
unauthorized because the prosecution did not adequately plead the requisite facts, the trial
court did not instruct on those facts, and jury made no such findings of fact, violating the
right to notice and a jury trial under Apprendi v. New Jersey (2000) 530 U.S. 466.
Defendants also argue that the convictions on Count 4 must be stricken because they
were based on the same conduct underlying Count 3. We do not reach these claims
because we hold the convictions on Counts 3 and 4 must be reversed for the reasons set
forth in section II.H below.




       10
        The evidence was sufficient even without the testimonial hearsay that
should have been excluded for the reasons set forth in section II.F below.
                                              33
   E. Sufficiency of the Evidence Supporting Pettie’s Convictions
       Pettie separately contends the evidence was insufficient to sustain convictions or
true findings on any of the charges or allegations against him. He argues that the
evidence shows only that he was present at the scene of the crime, and not that he
engaged in any conduct that would make him liable for any of the charged offenses. In
conjunction with this claim, he contends the trial court erred by failing to instruct the jury
that a defendant’s mere presence at the scene of a crime does not by itself make him an
aider and abettor. The Attorney General contends substantial evidence showed Pettie
was an active participant in the crime and that the trial court was not required to instruct
the jury on mere presence. We conclude sufficient evidence supports the convictions, but
we hold the trial court erred by failing to instruct the jury on mere presence.
       1. Legal Principles
       “Mere presence at the scene of a crime which does not itself assist its commission
or mere knowledge that a crime is being committed and the failure to prevent it does not
amount to aiding and abetting.” (In re Michael T. (1978) 84 Cal.App.3d 907, 911; Pinell
v. Superior Court (1965) 232 Cal.App.2d 284, 287.) “To be liable for a crime as an
abettor, the accused must have instigated or advised the commission of the crime or have
been present for the purpose of assisting the crime. He must share the criminal intent
with which the crime was committed. Neither his mere presence at the scene of the crime
nor his failure, through fear, to prevent a crime establishes, without more, that an accused
was an abettor.” (People v. Boyd (1990) 222 Cal.App.3d 541, 556-557, citing People v.
Durham (1969) 70 Cal.2d 171, 181.) The trial court has a sua sponte duty to instruct the
jury on this rule where the evidence is substantial enough to merit its consideration.
(People v. Boyd, supra, 222 Cal.App.3d at p. 557, fn. 14.) A bracketed portion of
CALCRIM No. 401 (aiding and abetting) encapsulates the rule as follows: “If you
conclude that defendant was present at the scene of the crime or failed to prevent the
crime, you may consider that fact in determining whether the defendant was an aider and
                                             34
abettor. However, the fact that a person is present at the scene of a crime or fails to
prevent the crime does not, by itself, make him or her an aider and abettor.”
       2. Background
       The trial court did not instruct the jury based on CALCRIM No. 401. As to aiding
and abetting, the trial court instructed the jury based on CALCRIM No. 1400 (active
participation in a criminal street gang) in relevant part as follows: “To prove that the
defendant aided and abetted felonious criminal conduct by members of the gang the
People must prove, one, a member of the gang committed the crime; two, the defendants
knew that the gang member intended to commit the crime; three, before or during the
commission of the crime the defendant intended to aid and abet the gang member in
committing the crime; and, four, the defendant’s words or conduct did, in fact, aid or abet
the commission of the crime. Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, aid,
facilitate, promote, encourage or instigates the perpetrators commission of that crime.” A
bracketed portion of CALCRIM No. 1400 includes a “mere presence” instruction
identical to that in CALCRIM No. 401, but the trial court did not give that part of the
instruction either.

       3. Sufficient Evidence Supports Pettie’s Convictions, But the Trial Court Erred by
          Failing to Instruct the Jury on Mere Presence
       With the exception of Count 6 (active participation in a criminal street gang),
Pettie is correct that the prosecution presented no specific evidence of individual acts,
words, or conduct by him that would make him liable for any of the substantive charges.
Although Delgadillo told police he saw Pettie outside when Lanford lured Delgadillo out
of the house, Delgadillo made no claim that Pettie ever said anything, struck any blows,
possessed any weapons, or discharged any gun. Delgadillo’s mother testified that
Delgadillo told her Lanford and Garcia were there, but she expressly stated that
Delgadillo did not name anyone else.

                                             35
         The Attorney General contends the evidence shows Pettie participated in the
assault, but the Attorney General supports this assertion with only two citations to the
record. First, he asserts that Delgadillo told Deputy Mull that all the men there, including
Pettie, participated in the assault. The record does not support this assertion. According
to Deputy Mull’s testimony, he recounted Delgadillo’s statement as follows: When
Lanford took Delgadillo outside, Delgadillo “saw that there were three other subjects
there present outside.” When the prosecutor asked Deputy Mull if Delgadillo had said he
recognized the men outside, Deputy Mull responded, “He gave me the names of those
persons there.” Deputy Mull never testified that Delgadillo said all of the men outside
participated in the assault. After Deputy Mull finished describing Delgadillo’s narrative
of the attack, the prosecutor asked Deputy Mull if Delgadillo gave Deputy Mull “the
names of the people who jumped him.” Deputy Mull responded affirmatively and said,
“[Delgadillo] told me they were Andrew Lanford, Vincent Pettie, Philip Garcia and
another person he identified as Robert.” This testimony does not support an inference
beyond a reasonable doubt that Pettie specifically engaged in conduct or took some
action that would constitute aiding and abetting. The phrase “the names of the people
who jumped him”—which were the prosecutor’s words, not Delgadillo’s words—could
reasonably be interpreted as a reference to the persons who were present at the assault.
This interpretation is further supported by Deputy Mull’s earlier testimony that
Delgadillo gave him the names of “three other subjects there present outside.”
         Second, the Attorney General points to the fact that Delgadillo picked Pettie’s
photo out of a “six pack” photographic lineup. But there was no evidence that Delgadillo
said anything specific about Pettie at the photographic lineup apart from identifying his
photo.
         Pettie persuasively argues that this evidence, viewed in isolation, was not strong
evidence of his guilt. As set forth above in section II.B, however, the prosecution also
presented sufficient evidence to show Pettie was an active participant in the Norteño
                                              36
criminal street gang together with Garcia and Lanford. Furthermore, Deputy Mull opined
that when a gang member is summoned by fellow gang members to administer a “beat
down” on some victim, the summoned member is expected to assist in the assault, even
to the point of committing murder. Deputy Mull also opined that if that gang member
failed to support or assist in the assault, the member would probably have the same
punishment visited upon himself. Based on this testimony, a jury could reasonably infer
that Pettie was not merely present, but that he aided and abetted the assault, attempted
murder, and witness dissuasion. We conclude substantial evidence supported his
convictions on the offenses and allegations charged in Counts 1 through 5. 11
       Nonetheless, the overall evidence of Pettie’s active participation in the assault was
not overwhelming. As described above, the prosecution presented no evidence of any
specific conduct by Pettie apart from his presence at the assault. As such, the record
holds sufficient evidence from which a jury could reasonably infer that he was merely
present. Accordingly, we hold that the trial court had a sua sponte duty to instruct the
jury on mere presence, e.g. with the pertinent bracketed portion of CALCRIM No. 401.
The court’s failure to do so constituted instructional error.
       The parties do not address the applicable standard of prejudice, and we are
unaware of any case law squarely on point. Generally, a failure to instruct on the element
of an offense constitutes federal constitutional error. Courts have held that failure to
instruct on the requisite mental state for aiding and abetting liability—so-called “Beeman
error”—constitutes federal constitutional error because it omits a required element.
(People v. Croy (1985) 41 Cal.3d 1, 13-14, discussing People v. Beeman (1984)
35 Cal.3d 547, 560 [knowledge of perpetrator’s intent and intent to aid and abet the
offense are required elements of aiding and abetting].) In contrast, an inadequate
instruction on natural and probable consequences liability does not necessarily constitute

       11
        The evidence was sufficient even without the testimonial hearsay that
should have been excluded for the reasons set forth in section II.F below.
                                              37
federal constitutional error if it does not “ ‘withdraw an element from the jury’s
determination or otherwise interject an impermissible presumption into the deliberative
process.’ ” (People v. Prettyman (1996) 14 Cal.4th 248, 272 [distinguishing Beeman
error], quoting People v. Cox (1991) 53 Cal.3d 618, 669.) Arguably, failing to instruct on
“mere presence” is analogous to omitting the actus reus of an offense, since the omitted
instruction essentially requires to jury to find the defendant took some action or engaged
in some conduct. However, in giving CALCRIM No. 1400, the court properly instructed
the jury that it must find “[t]he defendant’s words or conduct did in fact aid and abet the
commission of the crime” to find him guilty of aiding and abetting. Thus, the court
instructed the jury it must find defendants spoke some words or engaged in some
conduct, but the instruction did not make clear that such conduct required more than
merely being present. Viewing the instructions as whole, then, the omission of the “mere
presence” instruction created ambiguity as to whether merely being present constituted
“conduct” as referenced in CALCRIM No. 1400. “ ‘[I]n reviewing an ambiguous
instruction . . ., we inquire “whether there is a reasonable likelihood that the jury has
applied the challenged instruction in a way” that violates the Constitution.’ ” (Prettyman,
supra, 14 Cal.4th at p. 272, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.)
       Applying this standard, we conclude it is reasonably likely the jury misapplied the
instructions in a way that caused it to find Pettie guilty based solely on his mere presence
at the scene of the assault, and not based on a finding that his words or actions actually
aided and abetted the offense. As set forth above, the evidence of his active participation
in the assault, although sufficient to sustain the convictions, was not strong. Given the
prosecution’s arguments, the jury’s verdicts on the assault and dissuasion charges may
have hinged on the inference that Pettie’s status as a Norteño gang member motivated
him to participate. Although such an inference would have been reasonable, the evidence
to support it—consisting solely of the gang expert’s testimony that gang members are
obligated to participate in a gang-related assault—did not strongly compel such a finding.
                                              38
We further note that, as set forth in section II.F below, some of the gang-related evidence
was erroneously admitted in violation of Pettie’s right to confrontation. Absent the
erroneously admitted evidence, the case for Pettie’s active participation beyond his mere
presence was even weaker. For all these reasons, we conclude this error requires the
reversal of Pettie’s convictions on Counts 1 through 5.
   F. Introduction of Testimonial Hearsay by the Prosecution’s Gang Expert
       Defendants contend the prosecution violated their Sixth Amendment rights to
confrontation by introducing testimonial hearsay through the gang expert. The Attorney
General contends the gang expert’s testimony did not violate the Sixth Amendment, but
that any error was harmless. Based on Sanchez, supra, 63 Cal.4th 665, we hold the
introduction of testimonial hearsay violated defendants’ rights to confrontation. We
conclude this violation requires reversal as to all gang-related enhancements as well as
the gang life term imposed on Counts 3 and 4. We further conclude the violation requires
reversal of Pettie’s convictions on Counts 1 through 5, but not as to Garcia and Lanford.
       1. Factual and Procedural Background
       In his written pretrial motion to bifurcate the gang-related charges and
enhancements, Garcia identified numerous contacts between himself and the police as
documented in various police reports. Most of those contacts did not involve Deputy
Mull, and he did not author the reports. Garcia argued evidence of the incidents was
irrelevant and prejudicial under Evidence Code section 352. Soon after Garcia filed his
motion, the Fourth District Court of Appeal issued an opinion holding the introduction of
out-of-court testimonial statements by a gang expert without the opportunity for cross-
examination violated the Sixth Amendment under Crawford, supra. 12 Citing the newly
filed opinion, Garcia then moved to exclude evidence of the police reports on Sixth

       12
        People v. Archuleta (2014), formerly at 225 Cal.App.4th 527, review granted
and further action deferred pending consideration of Sanchez, supra, on June 11,
2014, S218640, and review dismissed on September 21, 2016.
                                            39
Amendment grounds, whereupon Pettie and Lanford joined in the motion with respect to
police reports of contacts with them as well. The police reports themselves were not
admitted into evidence and are not part of the appellate record.
       The trial court interpreted the case law as applying Crawford to “out-of-court
hearsay statements that are merely parroting the opinion of the expert.” The court ruled
that the Sixth Amendment did not otherwise bar the gang expert from introducing
hearsay as a basis for supporting his opinions, as long as the hearsay did not “parrot” the
expert’s opinion. The court and the parties then reviewed a specific list of reported police
contacts with defendants that the prosecution’s gang expert intended to introduce to
support his opinions. The trial court excluded some incidents as prejudicial under
Evidence Code section 352, but the court admitted numerous hearsay statements from
police reports describing officers’ contacts with each defendant. The details of these
contacts are set forth above in section I.A.6.
       With the introduction of this evidence against Lanford at trial, the court gave the
jury a limiting instruction as follows: “The expert is rendering opinions as to gang
affiliations. One of the allegations in the complaint. Everything he’s testifying to
regarding these incidents where [Lanford] was contacted including the conviction is only
coming in for the purposes of the basis of his opinion. You can’t consider it for any other
purpose, such as, the character of a particular defendant, okay, in this case, Mr. Lanford.
[¶] It doesn’t come in as character evidence. It doesn’t come in for any other purpose
other than the basis of the opinion because you’re going to be asked to evaluate these
opinions in deliberations. Okay? And an opinion is only as good as the reasons for it.
Okay. So it’s coming in as a reason or basis for an opinion but for no other purpose.”
       2. Legal Principles
       The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” (U.S. Const., 6th Amend.) The Confrontation Clause thereby bars
                                             40
“admission of testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” (Crawford, supra, 541 U.S. at p. 37.) This bar applies only to testimonial
statements; admission of nontestimonial statements, while subject to state law hearsay
rules, does not violate the Confrontation Clause. (Id. at p. 53.)
       Crawford, supra, bars the introduction of case-specific testimonial hearsay by a
gang expert. “When any expert relates to the jury case-specific out-of-court statements,
and treats the content of those statements as true and accurate to support the expert’s
opinion, the statements are hearsay. It cannot logically be maintained that the statements
are not being admitted for their truth. If the case is one in which a prosecution expert
seeks to relate testimonial hearsay, there is a confrontation clause violation unless
(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at
p. 686, fn. omitted.) This bar cannot be avoided with the usual limiting instruction.
“Once we recognize that the jury must consider expert basis testimony for its truth in
order to evaluate the expert’s opinion, hearsay and confrontation problems cannot be
avoided by giving a limiting instruction that such testimony should not be considered for
its truth.” (Id. at p. 684.)

       3. The Introduction of Gang Expert Testimony Reciting Case-Specific Facts
          Based on Testimonial Hearsay Statements Violated Defendants’ Rights to
          Confrontation
       As set forth above in section I.A.6, the prosecution’s gang expert, Deputy Mull,
testified to numerous contacts between police officers and defendants based on police
reports he did not author. The reports generally described defendants wearing gang-
related clothing and associating with persons known to be gang members or associates.
Detailed descriptions of the reports in the record show that many or most of the reports
were made to document completed crimes such as assaults, intimidation, vehicle theft,

                                             41
and firearms offenses. With the exception of two incidents in which Deputy Mull was
personally involved, the prosecution did not make any other witnesses or officers
available for cross-examination concerning these contacts. Deputy Mull testified that he
relied on the reports of these contacts in forming his opinion that defendants were
Norteño gang members and hence that the substantive offenses were committed for the
benefit of the gang.
       This evidence is indistinguishable from the type of expert testimony found to be
inadmissible in Sanchez, supra, 63 Cal.4th at page 694. In Sanchez, the prosecution’s
gang expert testified to the contents of police reports describing five prior police contacts
involving the defendant, among other things. (Ibid.) Similarly, Deputy Mull’s testimony
recited “case-specific facts from a narrative authored by an investigating officer” who
was not made available for cross-examination. (Ibid.) Sanchez makes clear that such
statements are testimonial under Crawford, and that the admission of this evidence
violated defendants’ rights under the Confrontation Clause.
       The Attorney General contends the evidence was admissible because the trial
court instructed the jury not to consider the testimony for its truth. This argument
mischaracterizes the court’s limiting instruction. The court did not instruct the jury not to
consider Deputy Mull’s hearsay testimony for the truth of the matters to which he
testified. The court instructed the jury not to consider the testimony as character
evidence or for any other purpose except as a basis for the expert’s opinions. In any
event, Sanchez makes clear that instructing the jury not to consider the testimony for its
truth cannot avoid or cure the confrontation violation. (Sanchez, supra, 63 Cal.4th at
p. 684.)
       For the reasons above, we conclude the admission of testimonial hearsay
statements by the prosecution’s gang expert violated defendants’ Sixth Amendment right
to confrontation.


                                             42
       4. Harmless Error
       A violation of the Sixth Amendment’s confrontation right requires reversal of the
judgment against a criminal defendant unless the prosecution can show beyond a
reasonable doubt that the error did not contribute to the verdict obtained. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Rutterschmidt (2012) 55 Cal.4th 650, 661.)
“ ‘ “To say that an error did not contribute to the ensuing verdict is . . . to find that error
unimportant in relation to everything else the jury considered on the issue in question, as
revealed in the record.” [Citation.] Thus, the focus is on what the jury actually decided
and whether the error might have tainted its decision. That is to say, the issue is “whether
the . . . verdict actually rendered in this trial was surely unattributable to the error.”
[Citation.]’ ” (People v. Pearson (2013) 56 Cal.4th 393, 463 (Pearson).)
       The Attorney General contends the error was harmless because Deputy Mull’s
opinions were “not based in significant part” on the prior contacts described in the police
reports. The Attorney General points out that Deputy Mull also relied on other factors in
forming his opinion, including his knowledge of the Norteño gang, his own training and
experience, and various observations such as defendants’ clothing, tattoos, and gang
paraphernalia. Furthermore, as to Pettie and Lanford each, at least one of the contacts
personally involved Deputy Mull, and thus his statements about those were not hearsay.
       There is no support in the record for the assertion that Deputy Mull’s opinions
were not based in significant part on the contacts described in the police reports. This
argument also misconstrues the Chapman standard. The question under Chapman is not
whether the expert relied in significant part on the inadmissible evidence; the question is
whether the admission of that evidence contributed to the verdict. Deputy Mull described
several police contacts with each defendant, typically involving defendants’ association
with “known” gang members or associates. These included five contacts with Garcia, at
least six contacts with Lanford not involving Deputy Mull, and nine contacts with Pettie
not involving Deputy Mull. The Attorney General puts forth nothing showing that this
                                               43
evidence did not contribute to the jury’s findings on the gang enhancements. To the
contrary, it appears likely the evidence contributed to the jury’s findings.
       Furthermore, the evidence of defendants’ connections to the Norteño street gang
was not so overwhelming that the police contacts were “unimportant in relation to
everything else the jury considered on the issue . . . .” (Pearson, supra, 56 Cal.4th at
p. 463.) Much of the evidence relied on by Deputy Mull consisted of red items of
clothing, including sports memorabilia commonly worn by fans of the San Francisco
49ers football team or the San Francisco Giants baseball team. And much of the
evidence that Deputy Mull characterized as gang-related had no specific connection to
the Norteño gang per se, but instead related to cliques or neighborhoods. For example,
Deputy Mull described some of the tattoos worn by defendants as associated with local
gang cliques or neighborhoods. Pettie had two neighborhood-related tattoos—“Hollis,”
and “V.H.,” which stood for Via Hermosa according to Deputy Mull. Similarly, Garcia
had tattoos of “Eastside” and “E.S.S.J.,” which represented East Side San Jose according
to Deputy Mull. Deputy Mull testified that there were Norteño-identified cliques
operating in these neighborhoods. But the prosecution’s theory at trial—as well as the
Attorney General’s position on appeal—identified the broader Norteño gang itself as the
criminal street gang for purposes of section 186.22. As the Attorney General
acknowledges, Deputy Mull testified that all three defendants were members of the
Norteño gang, not one of the cliques. The Attorney General expressly concedes that
“although the three men had tattoos and other indicia pertaining to certain geographic-
based ‘clicks,’ there was no definitive evidence that appellants belonged to different
Norteño subgroups.” And all the predicate offenses presented by the prosecution were
committed by Norteño gang members, not members of any subset gang.
       Under this theory, tattoos or clothing associated with cliques, neighborhoods, or
subsets are not overwhelming evidence of active participation in the Norteño gang itself.
Nor are they overwhelming evidence that the defendants committed offenses for that
                                             44
gang’s benefit. While a jury could reasonably find that tattoos relating to a Norteño-
associated gang clique or subset tend to support the inference that a defendant is an active
participant in the Norteño gang itself, or that the defendant committed the offense for the
benefit of that gang, in this case the evidence to support such a finding was not
overwhelming. This is particularly true in the absence of evidence that would establish
an “organizational or associational connection” between the relevant cliques and the
broader Norteño gang as required under Prunty, supra. Deputy Mull offered no such
testimony with respect to the cliques at issue here.
       We conclude the Attorney General has not shown beyond a reasonable doubt that
the erroneously admitted evidence did not contribute to the jury’s gang-related findings
and verdicts. Accordingly, the error requires us to vacate defendants’ sentences and
vacate the true findings with respect to all gang-related enhancements, as well as the
gang-related life term imposed on Counts 3 and 4 under section 186.22, subdivision
(b)(4)(C). 13
       However, the erroneous admission of such gang expert testimony does not
necessarily require reversal of the convictions on all the underlying substantive charges in
Counts 1 through 5. In Sanchez, the defendant was convicted of possession of a firearm
by a felon and possession of drugs while armed with a loaded firearm, in addition to the
gang-related allegations. The high court reversed the gang enhancement findings, but
declined to reverse the convictions on the underlying charges. The court concluded that,
in the absence of the inadmissible hearsay, the evidence still showed Sanchez possessed
the drugs and firearm. The court noted, “A drug dealer may possess drugs in saleable
quantities, along with a firearm for protection, regardless of any gang affiliation, and
without an intent to aid anyone but himself.” (Sanchez, supra, 63 Cal.4th at p. 699.)

       13
         The error would also require reversal of the conviction on Count 6 (active
participation in a criminal street gang under subdivision (a) of 186.22), but the
prosecution dismissed that count at sentencing.
                                             45
       As to Garcia and Lanford, the record holds abundant evidence of their guilt on the
substantive offenses charged in Counts 1 through 5 apart from the gang expert’s
inadmissible hearsay testimony. First, Garcia had an obvious non-gang motive to assault
and dissuade Delgadillo. Delgadillo had contacted the police concerning Garcia’s alleged
abuse of his daughter, and Delgadillo was engaged in a custody dispute with his ex-wife,
who was Garcia’s girlfriend. Second, according to Delgadillo’s statements to the police,
he specifically identified Garcia as the attacker who held the gun to his face just before he
fled and heard the gunshots fired. As for Lanford, Delgadillo’s statements to the police
specifically identified Lanford as the one who lured him outside while questioning him
about having called the police. Delgadillo’s statements also revealed that Lanford briefly
went outside and returned before the attack, suggesting he may have arranged for the
other attackers to be present. Lanford was also related to Delgadillo through marriage to
Delgadillo’s cousin, and Lanford lived at the same location as Delgadillo’s ex-wife.
Furthermore, Deputy Mull’s testimony recounting Delgadillo’s statements was generally
corroborated by Delgadillo’s mother, who gave an account of Delgadillo’s statements
consistent with Deputy Mull’s testimony. We conclude the record holds strong non-
gang-related evidence of Garcia and Lanford’s guilt as to the substantive offenses
charged in Counts 1 through 5. 14 By the same token, strong evidence supported the true
findings on the firearm enhancements and the infliction of great bodily injury. As to
Garcia and Lanford then, we conclude the error was harmless beyond a reasonable doubt
with respect to the substantive charges and non-gang enhancements.
       The evidence pertaining to Pettie’s role in the substantive offenses was
substantially weaker. As discussed above in section II.E, the prosecution presented no

       14
         As noted above, however, the sentences on Counts 3 and 4 must be vacated
because the court imposed the gang-related life term under subdivision (b)(4)(C) of
section 186.22. And as to Lanford, the 20-year term imposed under section
12022.53, subsection (e)(1), must be vacated because it too requires a finding under
section 186.22.
                                             46
evidence of any specific words, conduct, or action taken by Pettie beyond his mere
presence at the scene of the assault. As to Pettie, the prosecution’s theory of liability—
that he aided and abetted the assault and dissuasion, or conspired with Lanford and
Garcia to do so —hinged entirely on Pettie being a Norteño gang member. After Pettie’s
counsel argued in closing that the prosecution had presented no evidence of Pettie’s
participation in the assault, the prosecution argued on rebuttal that Pettie had a motive to
“beat down” Delgadillo to back up fellow Norteño gang members. And as set forth in
detail above, the prosecution’s gang expert opined that gang members are obligated—
indeed, compelled under threat of violence—to back up fellow gang members and
participate in a “beat down” when summoned to do so. The prosecution presented no
other evidence of Pettie’s motive. The only non-gang connection between Pettie and
Delgadillo consisted of the fact that the two had gone to school together. The record
shows no familial connection between Pettie and Delgadillo. Moreover, Delgadillo’s
mother expressly testified that Delgadillo had identified Lanford and Garcia, and nobody
else, as participating in the assault.
       Based on this evidence, it is likely the jury relied on evidence of Pettie’s
membership in the Norteño gang to support its findings of guilt on the substantive
offenses. For the same reason, the prosecution cannot show beyond a reasonable that the
erroneously admitted testimony concerning Pettie’s prior police contacts did not
contribute to the verdicts on Counts 1 through 5. We conclude the error requires reversal
of the convictions on those counts as to Pettie.
   G. The Gang Expert’s Reliance on Hypothetical Fact Specific Scenarios
       In questioning Deputy Mull, the prosecution posed several questions based on
hypothetical scenarios with facts substantially the same as the facts alleged in this case.
Defendants contend the expert’s opinions based on those hypothetical scenarios were
“unduly exhaustive case-mirroring opinions” admitted in violation of defendants’ rights
to due process, a fair trial, and the right to trial by jury. Defendants concede state law
                                             47
permits the use of such hypotheticals, but they present the claim to exhaust their
remedies.
       The concession is well taken. A prosecutor may present a gang expert’s opinions
through hypothetical questions as long as the questions are rooted in facts shown by the
evidence. (People v. Vang (2011) 52 Cal.4th 1038, 1045.) A gang expert presented with
such hypothetical facts may opine that the offense was committed for the benefit of a
criminal street gang. Our high court specifically rejected the contention that expert
testimony based on hypothetical facts, when “thinly disguised” to resemble the
defendant’s circumstances, is inadmissible testimony. (Id. at p. 1041.) The hypothetical
scenarios presented in the questions posed here closely matched the facts of the offenses
as supported by the evidence, and were therefore permissible under Vang. We conclude
this claim is without merit.
   H. The Failure to Instruct the Jury on the Mens Rea Required for Witness Dissuasion
       Defendants contend the trial court failed to instruct the jury with respect to Counts
3 and 4 on the state of mind required for witness dissuasion. The Attorney General
concedes the error but contends it was harmless. We conclude the error was not harmless
beyond a reasonable doubt, requiring reversal of the convictions on Counts 3 and 4.
       The prosecution charged defendants with attempting to dissuade a witness by
force or threat in Count 3 (§ 136.1, subd. (c)(1)) and attempting to dissuade a witness in
furtherance of a conspiracy in Count 4 (§ 136.1, subd. (c)(2)). These are specific intent
crimes. (People v. Young (2005) 34 Cal.4th 1149, 1210; People v. Brenner (1992)
5 Cal.App.4th 335, 339.) “Unless the defendant’s acts or statements are intended to
affect or influence a potential witness’s or victim’s testimony or acts, no crime has been
committed under this section.” (People v. McDaniel (1994) 22 Cal.App.4th 278, 284.)
Here, the prosecution was required to prove that defendants intended to prevent or
discourage Delgadillo from reporting a crime to law enforcement.


                                            48
       “A trial court bears a sua sponte duty to instruct the jury on the essential elements
of an offense . . . .” (People v. Bell (2009) 179 Cal.App.4th 428, 434, citing People v.
Flood (1998) 18 Cal.4th 470, 504.) As the Attorney General concedes, the trial court
failed to instruct the jury on the required specific intent as to Counts 3 and 4. 15 The
failure to instruct the jury on an element of the offense is subject to harmless error
analysis under Chapman, supra, 386 U.S. 18, 26 [the prosecution has the burden to show
beyond a reasonable doubt that the error did not contribute to the verdicts].)
       Defendants contend the error requires reversal because the evidence did not
conclusively establish they intended to prevent or discourage Delgadillo from making
police reports in the future. They acknowledge the evidence that someone called
Delgadillo a “cop caller” and that Lanford questioned him about calling the police just
before the assault. But defendants contend this evidence showed at most that they
intended to exact retribution or revenge for Delgadillo’s past report to the police.
       To support this argument, defendants rely on People v. Ford (1983)
145 Cal.App.3d 985 (Ford). Ford was a defendant at a preliminary hearing when he
threatened a witness who had just testified against him. Ford yelled, “You punk mother
fucker, we’ll get you, you’ve got kids.” (Id. at p. 987.) Ford was convicted under
subdivision (c)(1) of section 136.1, but the trial court failed to instruct the jury on the
required specific intent. The court of appeal found the evidence sufficient to sustain the
conviction but reversed based on the instructional error. The court noted the ambiguous
nature of the threat, which could have been interpreted “as a simple angry statement of
impending revenge: ‘You did this to me and you will pay for it.’ ” (Ford, supra, at
pp. 989-990.) The court held, “If this is the proper interpretation, the crime was not


       15
         The Attorney General also concedes the court failed to instruct the jury
that it must find Delgadillo was a crime witness. Defendants, however, do not claim
this omission by itself requires reversal. In any event, we would find it harmless
beyond a reasonable doubt, as the evidence on this point was undisputed.
                                              49
committed.” (Ibid.) Based on this ambiguity, the court held the instructional error was
not harmless. Defendants contend the same logic applies here.
       The Attorney General contends the facts here more closely resemble those of
People v. Brenner (1992) 5 Cal.App.4th 335 (Brenner) and People v. Jones (1998)
67 Cal.App.4th 724 (Jones). In Brenner, Brenner and several men attacked the victim in
a hotel room and took cash from him. After taking the cash, Brenner told the victim not
to call the police and threatened to kill him if he did so. Brenner was convicted under
subdivision (c)(1) of section 136.1. He argued on appeal that the trial court failed to
instruct the jury on the required specific intent for the offense. The court of appeal
agreed that the omission constituted instructional error, but the court found the error
harmless and affirmed the conviction. The court distinguished Ford on the ground that
Brenner’s statement was “absolutely unambiguous as to its intent” to dissuade the victim
from reporting to the police. (Brenner, supra, 5 Cal.App.4th at p. 339.)
       In Jones, supra, 67 Cal.App.4th 724, Jones repeatedly phoned a witness named
Darrell Conedy and said, “Are you going to testify? Don’t testify.” (Id. at p. 726.)
When Conedy asked Jones what he would do about it, Jones responded, “I’ll do whatever
I have to. Just don’t testify, man. I’m telling you, Darrell, I’ll do whatever I have to,
man.” (Ibid.) Jones was convicted under subdivision (c)(1) of section 136.1, but the trial
court failed to instruct on the requisite specific intent. The court of appeal held the
omission was instructional error but found it harmless. After comparing the facts of Ford
and Brenner, the court concluded Jones’ case was more similar to Brenner. The court
found there was “nothing ambiguous” about Jones’ statements and concluded that they
demonstrated “an explicit intent to dissuade.” (Jones, supra, at p. 728.)
       The Attorney General acknowledges that defendants here made no explicit or
unambiguous statements to the effect of “don’t call the police” or “we’ll assault you
again if you call the police.” As discussed above in section II.D, we agree that a jury
could reasonably infer from defendants’ conduct that they intended to dissuade
                                             50
Delgadillo from calling the police in the future, such that sufficient evidence supported
the convictions on Counts 3 and 4. But Chapman requires the Attorney General to show
beyond a reasonable doubt that the error did not contribute to the verdicts. We do not
find defendants’ conduct so unambiguous that it demonstrated an intent to dissuade future
reports. Defendants’ statements and actions more closely resemble those in Ford than
those in Brenner and Jones.
       The Attorney General points to defendants’ nonverbal conduct. He argues that
Garcia fired multiple gunshots at Delgadillo as he ran away, thereby sending “an
unmistakable ‘parting message’ ” intended to dissuade him from making future reports.
But this “parting message” theory cannot be squared with the prosecution’s theory of the
case—that defendants attempted to murder Delgadillo by firing the gun at him. At the
close of evidence, defendants moved for judgments of acquittal under section 1118.1.
The trial court ruled that the evidence pertaining to the “beat down” portion of the assault
was insufficient to support charges of attempted murder. Accordingly, the prosecution
specifically argued that the firing of the gun constituted the actus reus of the attempted
murder. Having found defendants guilty of that charge, the jury must have found the
shooting was intended to kill Delgadillo. This contradicts the Attorney General’s
argument that the shooting was intended as a “parting message” to discourage future
police reports.
       Of course, the law generally accepts inconsistent verdicts. (People v. Palmer
(2001) 24 Cal.4th 856, 860.) And section 136.1 prohibits “attempts to prevent or
dissuade” a witness from making reports. (§ 136.1, subd. (b).) Murder is one way to
prevent a witness from doing so. (See, e.g., People v. Townsel (2016) 63 Cal.4th 25, 42.)
But a defendant can also murder a witness solely for revenge, and here the evidence of
defendants’ intent does not compel a contrary finding beyond a reasonable doubt. We




                                             51
conclude the Attorney General has not shown harmless error under Chapman. We will
reverse the convictions on Counts 3 and 4. 16
   I. Alleged Brady Violation
       Defendants contend the prosecution violated Brady, supra, by failing to disclose
several prior convictions suffered by Patricia Torres. The Attorney General contends
evidence of the offenses was inadmissible and immaterial. We conclude defendants have
not shown that evidence of Patricia’s prior offenses was material under Brady.
       1. Background
       Patricia (Delgadillo’s mother) did not appear on the prosecution’s pretrial witness
list. She was present in the courtroom when Delgadillo testified, but she left in the
middle of his testimony because she did not believe he was testifying truthfully. The
prosecution’s investigator then interviewed Patricia, who revealed that Delgadillo had
made statements to her about the assault. Shortly thereafter, the prosecution called her as
a witness. Defendants objected based on the absence of notice and discovery, but the
trial court allowed her to testify.
       As set forth in section I.A.4 above, Patricia testified that Delgadillo called her on
the night of the assault and told her about the attack. She recounted his statement in her
testimony. Delgadillo later came home with a knot on his head and told Patricia he had
been hit with a gun. Her testimony partly corroborated Delgadillo’s account of the attack
as told to Deputy Mull, inculpating Lanford and Garcia.
       After trial, defendants moved for a new trial based on, among other things, the
prosecution’s failure to disclose Patricia’s criminal record. At a hearing on the matter,
the prosecutor admitted he had not searched for her criminal record, but he pointed out
that he had not intended to call her as a witness, and he described the omission as
unintentional. The prosecution then disclosed that Patricia had suffered three prior

       16
        Because we are reversing the convictions on these counts, we do not reach
defendants’ remaining claims concerning Counts 3 and 4.
                                             52
misdemeanor convictions. In 2005, she was convicted of driving under the influence. In
1991, she was convicted of drawing a check on an account with insufficient funds. In
1992, she was convicted of forgery. The trial court, ruling that the prosecution had not
violated Brady, denied defendants’ motion.
       2. Legal Principles
       “Under Brady, [citation], and its progeny, the prosecution has a constitutional duty
to disclose to the defense material exculpatory evidence, including potential impeaching
evidence.” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 709.) “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.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) “Prejudice, in
this context, focuses on ‘the materiality of the evidence to the issue of guilt and
innocence.’ ” (People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar), quoting United
States v. Agurs (1976) 427 U.S. 97, 112, fn. 20.) “Evidence would have been favorable if
it would have helped the defendant or hurt the prosecution, as by impeaching one of its
witnesses. Evidence would have been material only if there is a reasonable probability
that, had it been disclosed to the defense, the result would have been different. The
requisite reasonable probability is a probability sufficient to undermine confidence in the
outcome on the part of the reviewing court. It is a probability assessed by considering the
evidence in question under the totality of the relevant circumstances and not in isolation
or in the abstract.” (People v. Dickey (2005) 35 Cal.4th 884, 907-908.)
       3. The Failure to Disclose Patricia Torres’ Criminal Record Was Immaterial
       The Attorney General does not dispute that the evidence of Patricia’s prior
convictions was favorable to defendants for Brady purposes. And although the Attorney
General asserts that the failure to disclose was inadvertent, he acknowledges that a Brady


                                             53
violation does not depend on the prosecutor’s intentions. We conclude defendants have
satisfied the first two prongs under Brady, and we turn to the materiality analysis.
       The Attorney General contends evidence of Patricia’s prior offenses was
immaterial because the evidence was likely inadmissible. Under People v.
Wheeler (1992) 4 Cal.4th 284, evidence of past misdemeanor conduct relevant to a
witness’s credibility is admissible subject to the trial court’s discretion. (Id. at p. 295.)
Under Evidence Code section 352, courts should “consider with particular care whether
the admission of such evidence might involve undue time, confusion, or prejudice which
outweighs its probative value.” (Wheeler, supra, at pp. 296-297.) The Attorney General
points to the remoteness of Patricia’s first two offenses—both of which occurred in the
early 1990s—as indications that the trial court likely would have excluded them. (See
People v. Beagle (1972) 6 Cal.3d 441, 453 [remoteness of the prior conviction is a factor
in admissibility], abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176.)
The Attorney General also asserts that, even if evidence of the conduct was admissible, it
was immaterial because Patricia was not a central witness in the prosecution’s case, and
the evidence of her prior conduct had little probative value.
       Defendants describe Patricia as “one of the most important witnesses in the trial,”
and they characterize her testimony as critical to the prosecution’s case. We are not
persuaded. While she provided corroboration for some of Delgadillo’s statements to
police, she was secondary to the prosecution’s case; the prosecution could have proven
all the charges without her beyond a reasonable doubt. This weighs against a finding of
materiality. “ ‘In general, impeachment evidence has been found to be material where
the witness at issue “supplied the only evidence linking the defendant(s) to the crime”
[citations], or where the likely impact on the witness’s credibility would have
undermined a critical element of the prosecution’s case [citation].’ ” (Salazar, supra,
35 Cal.4th at p. 1050.) Furthermore, the evidence of her past conduct was remote in
time, and her offenses were not particularly serious. (See People v. Letner (2010)
                                              54
50 Cal.4th 99, 177 [failure to disclose offenses was immaterial where none of the charges
against the witness was serious].)
       On balance, we find the Attorney General’s position persuasive. Even assuming
evidence of Patricia’s past offenses was admissible, defendants have not shown a
reasonable probability of a different result if it had been admitted. We conclude
defendants’ Brady claim fails because the nondisclosure of Patricia’s prior convictions
was immaterial.
   J. Prosecutorial Misconduct
       Defendants contend the prosecution committed misconduct by disparaging
defendants and their counsel, and by vouching for prosecution witnesses. The Attorney
General contends defendants forfeited these claims by failing to object and argues that
none of the identified incidents constituted misconduct. We find no merit to defendants’
contentions.
       1. Legal Principles
       When prosecutorial misconduct “infects the trial with such a degree of unfairness
as to render the subsequent conviction a denial of due process, the federal Constitution is
violated.” (People v. Panah (2005) 35 Cal.4th 395, 462 (Panah).) A prosecutor’s
conduct at trial may also constitute misconduct under state law if it involves the use of
“deceptive or reprehensible methods to persuade the trial court or the jury.” (Ibid.)
“ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.’ ” (People v. Ayala (2000)
23 Cal.4th 225, 284, quoting People v. Ochoa (1998) 19 Cal.4th 353, 427.)
       “To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant
must make a timely objection, make known the basis of his objection, and ask the trial
court to admonish the jury.” (People v. Brown (2003) 31 Cal.4th 518, 553.) There are
two exceptions to forfeiture: (1) the objection or the request for an admonition would
                                             55
have been futile; or (2) the admonition would have been insufficient to cure the harm
occasioned by the misconduct. (Panah, supra, 35 Cal.4th at p. 462.) A defendant
claiming one of these exceptions must find support for it in the record. (Ibid.)
       2. The Prosecution Did Not Commit Prosecutorial Misconduct
       Defendants identify several statements the prosecutor made in closing argument as
examples of purported misconduct. As an initial matter, the Attorney General is correct
that defendants failed to object to any of the identified statements. Moreover, defendants
do not point to any support in the record to show that objections or admonitions would
have been futile. We conclude defendants have forfeited these claims.
       In any event, defendants have not shown any reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.
Defendants assert that the prosecutor “sought to drive home the case that this case was to
be judged, above all else, as a gang case.” Given that defendants’ alleged loyalty to the
gang was central to the prosecution’s theory of the case, and given that defendants were
charged with gang offenses and enhancements, there was nothing improper about the
prosecution’s focus on gang-related evidence.
       Defendants contend the prosecution repeatedly denigrated defense counsel. At
one point, the prosecutor told the jury, “I do not underestimate you. Never have. I think
the defense does or will.” At another point, the prosecutor stated, “The defense thinks,
[Delgadillo] didn’t testify; we’re golden.” In its rebuttal, the prosecution complained
about one of defense counsel’s objections, stating, “And it’s frustrating, to say the least,
when a defense attorney objects to something I’m saying . . . .” The prosecutor then
repeated his assertion that defense counsel was underestimating the jury, and he
described Lanford’s counsel as smirking and showing disdain for Patricia Torres’
testimony. While the prosecutor’s behavior was not exemplary, we do not find that these
statements “infect[ed] the trial with such a degree of unfairness as to render the
subsequent conviction a denial of due process,” nor that the statements constituted
                                             56
“deceptive or reprehensible methods” likely to be applied by the jury in an objectionable
fashion. (Panah, supra, 35 Cal.4th at p. 462.)
       Finally, defendants contend the prosecution improperly vouched for its witnesses.
“Impermissible ‘vouching’ may occur where the prosecutor places the prestige of the
government behind a witness through personal assurances of the witness’s veracity or
suggests that information not presented to the jury supports the witness’s testimony.”
(People v. Fierro (1991) 1 Cal.4th 173, 211, overruled on another ground in People v.
Thomas (2012) 54 Cal.4th 908, 941.) “No impermissible ‘vouching’ occurs where ‘the
prosecutor properly relie[s] on facts of record and the inferences reasonably drawn
therefrom, rather than any purported personal knowledge or belief.’ ” (Williams, supra,
16 Cal.4th at 257, quoting People v. Medina (1995) 11 Cal.4th 694, 757.)
       Defendants allege several statements constituted vouching. In closing argument,
the prosecutor described Patricia Torres as a “brave little lady” who took the stand and
“told you what was going on, as if you all didn’t already know.” The prosecutor also
described Deputy Mull as someone who “knew [the] individuals involved.” The
prosecutor later told the jury that “you’re able to evaluate the evidence . . . and the
credibility of Deputy Mull, both as investigator, both as to what he heard, what he
testified to that actually happen that night including the unequivocal identification of
those three defendants; as well as a gang expert . . . .” None of these statements
constituted improper vouching. Describing Patricia as “brave” did not constitute an
assurance of her veracity, and the prosecution’s descriptions of Deputy Mull’s testimony
were based on the record or reasonable inferences therefrom.
       For the reasons above, we find these claims without merit.
   K. The Denial of Defendants’ Motions for a New Trial
       Defendants contend the trial court erroneously denied their motions for a new trial
based on, among other things, juror bias resulting from the jury’s exposure to outside
influences. Defendants also contend their attorneys provided ineffective assistance of
                                              57
counsel by failing to seek jury admonishments regarding the presence of extra security.
The Attorney General responds that the trial court adequately investigated any potential
juror bias and found no evidence of bias or misconduct. As to ineffective assistance of
counsel, the Attorney General contends trial counsels’ decisions were likely tactical, and
that defendants cannot show prejudice.
       We conclude the trial court did not err in denying defendants’ motion for a new
trial, and we find defendants suffered no ineffective assistance of counsel for failing to
request admonishments.
       1. Background
       After trial, defendants moved for a new trial on several grounds including
insufficient evidence, the alleged Brady violation concerning Patricia Torres, alleged
prosecutorial misconduct, and the jury’s exposure to outside influences. In this section,
we consider the asserted jury bias and related claims. 17
       After the prosecution’s closing argument, the trial court informed the parties that
four jurors had approached the bailiff at the end of the day and expressed concern about
persons in the audience having intimidating facial expressions. One of those jurors—
Alternate Juror No. 1—wrote the following note to the court: “Your Honor[,] Does it
hinder the legal process if when we return (the jury members) to the jury room—but
before we deliberate our opinions—we ask if any jury members want to be released from
the jury. I believe that some members are being influenced outside the court by attendees
of the court and want to make sure the case gets judged on the merits of the facts
presented, and not emotion or fear.” (Underline in original.)




       17
         We find no merit in defendants’ claims of insufficient evidence, the Brady
violation, and prosecutorial misconduct for the reasons set forth above. To the
extent defendants presented these claims below as grounds for the new trial motion,
we conclude the court did not err in denying the motion on those grounds.
                                             58
       The court instructed the sheriff’s department to monitor the audience and brought
Alternate Juror No. 1 into court with all parties present. Alternate Juror No. 1 told the
court that, during jury selection, she was crossing the street with four or five other jurors
at the end of the day when a vehicle driven by an unidentified female approached them
and slowed down. The driver made a gesture with two fingers, pointing at her own eyes
and then pointing at the juror. Alternate Juror No. 1 said she assumed the driver was
annoyed because the juror had not seen the vehicle approaching, and that it had nothing
to do with the case. The court asked the juror if she could continue with that assumption,
and the juror stated she could. The court instructed her to put the incident aside, as well
as any conversations she may have had with other jurors about it. The court further
instructed the juror to judge the case on its merits without holding anything against
defendants or assuming they had any involvement in the incident. The juror stated that
she could do so.
       Alternate Juror No. 1 also stated that she had talked to another juror who had
experienced something similar, and that there was a third juror involved in this
conversation. The court then instructed Alternate Juror No. 1 to tell the bailiff which of
the other jurors were involved. After the juror left, the court asked defendants’ counsel if
they had any concerns about the court’s examination of the juror, and all three attorneys
responded that they had no concerns. The court then stated that it would instruct the
sheriff’s department to accompany jurors to their cars after lunch and evening recesses.
       The court then brought Juror No. 3 into court. Juror No. 3 told the court that she
had been in the parking lot after a lunch recess when she saw two persons in a vehicle
“just sort of staring me down.” She stated that she felt intimidated “[t]o a degree . . . .”
The court instructed her not to hold the incident against defendants and to base her
judgment on the facts and the law without regard to any external incidents. The court
asked the juror if she felt she could set aside the incident and judge the case on its merits,
and she responded affirmatively. The court then asked her to identify the other jurors
                                              59
with whom she had discussed the matter, whereupon she did so. She added that she had
felt better because she had seen members of the sheriff’s office in the parking lot that
morning.
       The court then brought Juror No. 1 into court. Juror No. 1 told the court she had
heard other statements from jurors about possible intimidation. During jury selection,
another juror said someone in the audience had referred to Juror No. 1 as “a mean lady.”
Juror No. 1 did not know whether the person in the audience was associated with
defendants. She affirmed to the court that she could judge the case based solely on the
merits and put aside any feelings that might result from this comment. Juror No. 1 also
stated that she had heard two other conversations in which jurors expressed nervousness,
but she could not describe or recall any details of what she had heard. Juror No. 1
affirmed that she would set aside what she had heard and that it would not impact her
ability to judge the case on its merits.
       Finally, the court brought Juror No. 8 into court. She told the court she had heard
a conversation in which other jurors had expressed concerns, but she added that she did
not say anything or get involved in the conversation. She stated that she had not
experienced any of the things the other jurors had discussed. Juror No. 8 affirmed to the
court that she could judge the case based solely on the merits and without regard for any
external influences. She reaffirmed that she would “[a]bsolutely” be able to perform her
duties as a juror without regard to any biases, fears, or concerns she might have.
       After Juror No. 8 left, the court again asked counsel if they wished to raise any
concerns. Counsel for Lanford and Pettie stated they had no concerns. Counsel for
Garcia stated that she was only concerned about whether the court had identified and
questioned all the jurors involved. The court asked if counsel for Garcia wanted all the
jurors brought into court for questioning, but she stated twice that she did not want the
court to do so. Counsel expressed her belief that nothing had impacted the jurors.


                                             60
       Finally, the prosecutor corroborated the observation of Juror No. 3 that additional
law enforcement officers had been present in the parking lot that morning. The
prosecutor stated that the sergeant in charge of courthouse security was putting into place
additional measures, including escorting jurors to their cars.
       2. Legal Principles
       Criminal defendants have a constitutional right to trial by unbiased, impartial
jurors. (U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 16; Irvin v. Dowd (1961)
366 U.S. 717, 722, superseded on other grounds by statute; People v. Nesler (1997)
16 Cal.4th 561, 578 (Nesler).) An impartial jury is one in which no juror has been
improperly influenced, and every juror is capable and willing to decide the case based
solely on the evidence. (In re Hamilton (1999) 20 Cal.4th 273, 294 (Hamilton).) “Juror
bias does not require that a juror bear animosity towards the defendant. Rather, juror bias
exists if there is a substantial likelihood that a juror’s verdict was based on an improper
outside influence, rather than on the evidence and instructions presented at trial, and the
nature of the influence was detrimental to the defendant.” (People v. Cissna (2010) 182
Cal.App.4th 1105, 1116.) “A sitting juror’s involuntary exposure to events outside the
trial evidence . . . may require . . . examination for probable prejudice. Such situations
may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation.”
(Hamilton, supra, 20 Cal.4th at pp. 294-295.) “Because a defendant charged with crime
has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a
conviction cannot stand if even a single juror has been improperly influenced.” (People
v. Pierce (1979) 24 Cal.3d 199, 208.)
       “[A] nonjuror’s tampering contact or communication with a sitting juror, usually
raises a rebuttable ‘presumption’ of prejudice.” (Hamilton, supra, 20 Cal.4th at p. 295.)
To determine whether the verdict must be overturned, we apply the substantial likelihood
test, an objective standard. (Id. at p. 296.) “Any presumption of prejudice is rebutted,
and the verdict will not be disturbed, if the entire record in the particular case, including
                                              61
the nature of the misconduct or other event, and the surrounding circumstances, indicates
there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or
more jurors were actually biased against the defendant.” (Ibid.) We accept the trial
court’s credibility determinations and findings on questions of historical fact if they are
supported by substantial evidence. (Nesler, supra, 16 Cal.4th at p. 582.) The question of
prejudice, however, is a mixed question of law and fact subject to our independent
determination. (Ibid.)
       3. Denial of Defendants’ New Trial Motions Was Not Error
       The trial court examined all jurors known to be exposed to any external influence.
With each juror, the court elicited the circumstances under which any improper influence
may have arisen. The court then admonished each juror on the duty to set aside whatever
concerns they may have had, and instructed them to judge the case based solely on the
evidence and law presented in court. After these admonishments, each juror responded
affirmatively that they were able and willing to do so. The court followed proper
procedure in doing so. (See People v. Cooper (1991) 53 Cal.3d 771, 838 [approving the
trial court’s individual questioning of jurors to assure each juror could follow the
admonishment and decide the case on the evidence].) Furthermore, the court implicitly
found each juror willing and able to adhere to her duty, and the record provides
substantial evidence to support such findings. We find no evidence establishing a
substantial likelihood that any juror acted in a biased manner against defendants. Thus,
even assuming the record is sufficient to establish an initial presumption of prejudice on
behalf of any juror, the court’s examination of each juror was sufficient to rebut any such
presumption.
       Defendants acknowledge the trial court acted appropriately insofar as it examined
the affected jurors, but defendants contend more was required. First, they contend the
trial court should have examined all remaining jurors for potential bias. But the court
asked each trial counsel whether he or she requested the court to do so, and each attorney
                                             62
expressly declined such an inquiry. Any claim defendants raise in this regard was
therefore forfeited. Furthermore, defendants point to nothing in the record to indicate the
court failed to examine any juror who had been exposed to external influence.
Defendants speculate that other jurors must have been exposed, but they cite to nothing in
the record to support this assertion.
       Second, defendants contend the trial court should have issued further admonitions
to the remaining jurors regarding its questioning of the four jurors and the presence of
extra security. Defense counsel requested no such admonitions, but defendants claim the
trial court had a sua sponte duty to provide them. Defendants provide no authority for
this proposition. Instead, they cite authorities concerning the shackling of defendants and
the seating of a police officer near a defendant—circumstances not at issue here. (See
People v. Bryant (2014) 60 Cal.4th 335, 392 [distinguishing the use of visible restraints
from the provision of extra security].) At most, the case law establishes that the trial
court may issue jury admonitions regarding extra security. (Ibid.)
       We conclude the trial court had no sua sponte duty to admonish the remaining
jurors under these circumstances. And for the reasons above, the record does not show a
substantial likelihood that any juror acted in a biased manner against defendants.
Accordingly, this claim is without merit.
       4. Defendants Did Not Suffer Ineffective Assistance of Counsel
       Defendants contend trial counsel were constitutionally ineffective in their failure
to request further admonitions. To demonstrate ineffective assistance of counsel,
defendants must first show trial counsel’s performance was deficient because it fell below
an objective standard of reasonableness under prevailing professional norms. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) Second, they must show
prejudice flowing from counsel’s performance or lack thereof. (Id. at pp. 691-692.)
“Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different.” (People v. Benavides (2005)
                                             63
35 Cal.4th 69, 92-93, citing Strickland, supra, 466 U.S. at pp. 687-688, 693-694.) “On
direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986,
1009.) “ ‘Tactical errors are generally not deemed reversible; and counsel’s
decisionmaking must be evaluated in the context of the available facts. [Citation.] To
the extent the record on appeal fails to disclose why counsel acted or failed to act in the
manner challenged, [the appellate court] will affirm the judgment “unless counsel was
asked for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation . . . .” ’ ” (People v. Hart (1999) 20 Cal.4th 546, 623-624.) The
defendant has the burden on appeal to show by a preponderance of the evidence that he or
she was denied effective assistance of counsel and is entitled to relief. (People v.
Dowdell (2014) 227 Cal.App.4th 1388.)
       The record does not show why defense counsel requested no admonitions
concerning the extra security. The Attorney General responds that counsel may have had
tactical reasons for declining to request such admonitions. The record supports this
assertion. After the trial court examined the four known jurors, the trial court asked
counsel whether they wished to have the remaining jurors examined. The court
reasonably pointed out that doing so would “kind of put[] a cloud over the whole
proceeding” and “may very well cut against the defendants.” Defense counsel,
apparently in agreement with this assessment, repeatedly declined additional
examinations. For the same reasons, counsel may have decided it would be unhelpful to
have the jurors admonished on the extra security measures, since doing so could have
emphasized the issue.
       Even assuming counsel had no tactical justifications, defendants have not shown
they were prejudiced by the failure to request admonitions. First, only one juror noted
                                             64
the extra security, and that juror stated she felt safer because of it. Defendants point to
nothing in the record showing any other jurors noticed the security or were made to feel
unsafe because of it. Nor have defendants demonstrated a reasonable probability that any
juror’s decisions or deliberations were affected by the presence of extra security.
Accordingly, defendants have not met their burden to demonstrate prejudice. We
conclude this claim is without merit.
   L. The 20-Year Firearm Enhancement Imposed on Garcia in Count 1
       The jury found true the allegation on Count 1 that Garcia personally discharged a
firearm in the commission of the offense under section 12022.53, subdivision (c). Garcia
contends, however, that we must strike the 20-year enhancement on Count 1 for
personally discharging a firearm because the prosecution failed to plead this allegation.
The Attorney General concedes the original information did not include the allegation,
but he contends the prosecution orally amended the information to include it. We
conclude Garcia had adequate notice of the allegation and that he was not prejudiced by
the prosecution’s oral amendment of the information.
       1. Legal Principles
       Section 12022.53 sets forth enhancements for the use or discharge of a firearm in
the commission of certain enumerated offenses, including murder. (§ 12022.53, subd.
(a)(1).) Subdivision (c) of that section (section 12022.53(c)) imposes a 20-year term on
any person who personally and intentionally discharges a firearm in the commission of
the offense. Subdivision (e)(1) (section 12022.53(e)(1)) also imposes the 20-year term on
any coprincipal in the offense if the coprincipal committed the offense for the benefit of a
gang and any other principal in the offense falls under section 12022.53(c). Thus, even if
the coprincipal does not personally discharge a firearm, he may liable for the 20-year
term if he commits the offense for the benefit of a gang, and some other principal in the
offense personally discharges a firearm. However, such a coprincipal cannot be
sentenced to a gang enhancement in addition to the 20-year term; only the person who
                                             65
personally discharges the firearm can be sentenced to the gang enhancement in addition
to the 20-year term. (§ 12022.53, subd. (e)(2).)
       Section 12022.53 further provides that the existence of any fact required under
section 12022.53(c) shall be alleged in the accusatory pleading. (§ 12022.53, subd. (j).)
Similarly, section 1170.1, subdivision (e), provides: “All enhancements shall be alleged
in the accusatory pleading and either admitted by the defendant in open court or found to
be true by the trier of fact.”
       “[I]n addition to the statutory requirements that enhancement provisions be
pleaded and proven, a defendant has a cognizable due process right to fair notice of the
specific sentence enhancement allegations that will be invoked to increase punishment
for his crimes.” (People v. Mancebo (2002) 27 Cal.4th 735, 747.) However, “[d]efects
in the form of an accusatory pleading are not a ground to reverse a criminal judgment in
the absence of significant prejudice to a defendant. (§ 960 [‘No accusatory pleading is
insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason
of any defect or imperfection in matter of form which does not prejudice a substantial
right of the defendant upon the merits’].)” (People v. Sandoval (2006) 140 Cal.App.4th
111, 132.) Oral amendment of an accusatory pleading may suffice for statutory and due
process purposes. (Ibid.) “The informal amendment doctrine makes it clear that
California law does not attach any talismanic significance to the existence of a written
information.” (Id. at p. 133.)
       2. Background
       As to each defendant, Count 1 of the information alleged “that a principal
personally and intentionally discharged a firearm, a handgun, within the meaning
of sections 12022.53(c) and (e)(l).” (Italics added.) The information did not allege that
Garcia personally discharged a firearm. Nor did the information charge Lanford or Pettie
with personally discharging a firearm. However, the information alleged in Counts 2 and
6 that Garcia personally used a firearm under section 12022.5.
                                            66
       When defendants moved for a directed verdict at the close of evidence, the trial
court raised the issue of the firearm enhancements on Count 1. It appears the court
misunderstood the nature of charges and believed the prosecution was charging Lanford
and Pettie, in addition to Garcia, with personally discharging a firearm. The prosecution
clarified that Lanford and Pettie were charged under section 12022.53(e)(1), alleging
only that “a principal” had personally discharged a firearm in the commission of the
attempted murder. The prosecution argued that Garcia was the only defendant seen with
the gun in his hand, whereupon the court found sufficient evidence to support a finding
that Garcia personally discharged the firearm. The court stated, “I have no problem as to
Mr. Garcia . . . [b]ecause there is evidence from which the jury can infer that he was the
one who personally discharged the firearm.”
       In the verdict form for the special allegations on Count 1, the court provided the
option for jurors to find any of several firearm enhancements. These included the
allegations that Garcia carried a firearm on his person (§ 12021.5, subd. (a)); that a
principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)); that Garcia
personally used a firearm (§ 12022.53, subd. (b)); that a principal personally discharged a
firearm (§ 12022.53, subds. (c) & (e)(1))); and that Garcia personally discharged a
firearm (§ 12022.53, subd. (c)). Garcia lodged no objections to the jury form. The jury
found all allegations true.
       At sentencing, the trial court imposed 20-year terms against Lanford and Pettie as
coprincipals under section 12022.53(e)(1), but the court did not impose any terms against
them for the gang enhancements charged in Count 1 because subdivision (e)(2)
prohibited such terms. However, because the jury found Garcia had personally
discharged the firearm, the court imposed the 10-year gang enhancement in addition to
the 20-year term under section 12022.53(c).




                                             67
       3. Garcia Had Adequate Notice of the Allegation
       Garcia contends the trial court could not have imposed terms for both the 10-year
gang enhancement as well as the 20-year personal discharge enhancement because the
information did not include the latter allegation. The Attorney General contends that the
prosecution, in its clarification to the trial court regarding Garcia’s personal discharge of
the firearm, orally amended the information to include the enhancement at that point.
Garcia concedes the trial court had the authority to amend the information at that stage in
the proceeding, but he argues that the prosecution did not amend the information because
the prosecutor did not expressly request an amendment or use the word “amend.” Garcia
points to no authority for the proposition that an amendment requires the use of specific
words or any express invocation. Under the circumstances at issue here, the issue of the
oral amendment depends largely on whether Garcia received adequate notice of the
prosecution’s intent to charge him with the personal discharge enhancement.
       We find abundant support in the record showing that Garcia was on notice at all
times that the prosecution intended to charge him with personal discharge of a firearm.
First, the original complaint, the amended complaint, and the second amended complaint
all expressly charged Garcia in Count 1 with personally discharging the firearm under
section 12022.53(c). The amended complaints also charged Lanford and Pettie under
section 12022.53(e)(1) as coprincipals in an offense in which a “principal”—who could
only be Garcia—personally discharged a firearm.
       Second, at the preliminary hearing in June 2013, Deputy Mull specifically testified
that Degadillo said Garcia had fired the gun at him as he fled the assault. At end of the
hearing, the prosecution argued that the evidence showed Garcia had personally
discharged the firearm, and the court held Garcia to answer on that allegation. Garcia
was thereby put on notice a year before trial that the prosecution was charging him under
this theory.


                                             68
       Moreover, as Garcia acknowledges, the information charged him in Count 1 with
carrying a firearm on his person (§ 12021.5, subd. (a)), and in Counts 2 and 6 with
personally using a firearm (§ 12022.5, subd. (a)). Neither of these allegations were made
against Lanford or Pettie; both were charged as coprincipals for an offense in which a
“principal” was armed with a firearm. (§ 12022, subd. (a)(1).) That principal could only
have been Garcia.
       The pleadings, the preliminary hearing, the prosecutor’s arguments, and the
evidence adduced at trial, all taken together, unambiguously established the prosecution’s
theory that Garcia was the only defendant who could have personally discharged a
firearm. It is inconceivable that Garcia lacked notice of this charge, and it is likewise
inconceivable that he could have suffered any prejudice from the amendment of the
information prior to closing arguments. Unsurprisingly, Garcia points to no such
prejudice. Garcia cites to several cases for the proposition that a failure to plead an
enhancement requires the allegation to be vacated without harmless error analysis, but
none of those cases involved an oral amendment.
       Given the circumstances described above, we conclude the amendment of the
information adequately satisfied Garcia’s statutory and due process rights. This claim is
without merit.
   M. Imposition of the Enhancement for Carrying a Firearm Under Section 12021.5
       Garcia contends the trial court erred by imposing a 3-year term for carrying a
firearm under section 12021.5, subdivision (a). The Attorney General concedes the court
erred in doing so. We accept the concession.
       The trial court imposed the 3-year enhancement in addition to the 20-year
enhancement for personally discharging a firearm under section 12022.53,
subdivision (c). But subdivision (f) of section 12022.53 provides in part: “An
enhancement involving a firearm specified in Section 12021.5 . . . shall not be imposed
on a person in addition to an enhancement imposed pursuant to this section.” Because
                                             69
the trial court imposed the 20-year enhancement, the further imposition of the 3-year
enhancement was unauthorized. Accordingly, the 3-year enhancement must be stayed.
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1123.)
   N. Cumulative Prejudice
       Defendants contend the cumulative prejudice from multiple errors requires
reversal on all counts and enhancements. Because we reverse all Pettie’s convictions,
this claim is moot as to him. As to Garcia and Lanford, we are granting relief on the
gang enhancements and the substantive charges in Counts 3 and 4. The remaining
charges include Count 1 (attempted murder), the assault charges in Counts 2 and 5, and
the related non-gang enhancements.
       For the reasons set forth in section II.H.4, any prejudice from the Crawford
violation was isolated from the substantive charges arising from the assault.
Furthermore, the trial court’s failure to instruct the jury on the mens rea required for
witness dissuasion is irrelevant to the attempted murder and assault charges. The
remaining defects identified above pertain only to sentencing errors. We conclude none
of the identified errors resulted in cumulative prejudice requiring further relief.
                                      III.   DISPOSITION
       As to Pettie, the convictions on all counts are reversed. As to Garcia and Lanford,
the judgments are reversed as follows: (1) the true findings on all gang-related
enhancements under Penal Code section 186.22 are vacated; (2) all prison terms requiring
a finding under section 186.22 are vacated; and (3) the convictions on Counts 3 and 4 are
reversed and the prison terms based on those convictions are vacated. As to Garcia, the
3-year term imposed under Penal Code section 12021.5, subdivision (a), is stayed. The
matter is remanded for further proceedings not inconsistent with this opinion. If the
prosecution elects not to retry Garcia or Lanford within 60 days after the filing of
remittitur, under Penal Code section 1382, subdivision (a)(2), the trial court shall
resentence them on the remaining counts and enhancements.
                                              70
                               ___________________________________________
                               WALSH, J. *




I CONCUR:


__________________________
PREMO, J.




People v. Pettie et al.
H041739


       *
        Judge of the Santa Clara County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
RUSHING, P.J., Concurring
       I agree with the majority’s opinion in all respects but one: As to defendant
Vincent Pettie, I would hold that the prosecution failed to present sufficient evidence to
support his conviction for attempted murder.
       The victim never testified to a single act or word by Pettie that would have
furthered or encouraged an attempted murder. The victim merely testified that he saw
Pettie with the other men outside just before the attack. The prosecution’s sole theory of
liability for attempted murder by Pettie hinged on the expert’s opinion that members of a
gang are expected to participate in a “beat down.” The majority concludes this opinion
supports an inference by a reasonable juror that Pettie must have played some role in the
attack sufficient to constitute attempted murder.
       I respectfully disagree with this conclusion. I find the required inference far too
tenuous and speculative as grounds to find Pettie guilty of attempted murder beyond a
reasonable doubt. I find it particularly weak given that the trial court ruled out any
argument that the “beat down” portion of the assault could have formed the actus reus of
the attempted murder. The jury must have found, as the prosecutor argued, that only the
firing of the gun could have constituted the attempted murder. But Garcia was the only
person identified as having a firearm at any point during the attack.
       Accordingly, I respectfully concur in the judgment, but I would hold that double
jeopardy bars Pettie’s retrial for attempted murder.



                                                    _______________________________
                                                          RUSHING, P.J.




People v. Pettie
H041739
Trial Court:                             San Benito County
                                         Superior Court Nos.: CR1300100,
                                         CR1300101 and CR1300102

Trial Judge:                             The Honorable Lee P. Felice


Attorney for Defendant and Appellant     William L. Osterhoudt
Vincent Pettie:                          under appointment by the Court of
                                         Appeal for Appellant

Attorney for Defendant and Appellant     Randy S. Kravis
Philip Garcia:                           under appointment by the Court of
                                         Appeal for Appellant

Attorney for Defendant and Appellant     Joseph Shipp
Andrew T. Lanford:                       under appointment by the Court of
                                         Appeal for Appellant


Attorneys for Plaintiff and Respondent   Xavier Becerra,
The People:                              Attorney General

                                         Kamala D. Harris
                                         Attorney General

                                         Gerald A. Engler,
                                         Chief Assistant Attorney General

                                         Jeffrey M. Laurence,
                                         Acting Senior Assistant Attorney
                                         General

                                         Eric D. Share,
                                         Supervising Deputy Attorney General

                                         Alisha M. Carlile,
                                         Deputy Attorney General



People v. Pettie, et al.
H041739
