         Filed 3/6/20
                        CERTIFIED FOR PARTIAL PUBLICATION*

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


    THE PEOPLE,                                   H043870
                                                 (Santa Clara County
          Plaintiff and Respondent,               Super. Ct. No. C1247403)

          v.

    JAVIER RUBEN RODRIGUEZ
    GARCIA,

          Defendant and Appellant.

    THE PEOPLE,                                   H044073
                                                 (Santa Clara County
          Plaintiff and Respondent,               Super. Ct. No. C1247403)

    v.

    DEANGELO JOSEPH AUSTIN,

          Defendant and Appellant.



         Appellants Javier Ruben Rodriguez Garcia and Deangelo Joseph Austin appeal
from judgments entered after a jury found them guilty of first degree murder and other
crimes related to a home invasion robbery.
         Between their two appeals, which we have considered together for oral argument
and disposition, Garcia and Austin raise 26 issues. Stated broadly, Garcia and Austin



 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I(D), II, III, and IV.
challenge the sufficiency of the evidence presented at trial, certain evidentiary rulings and
jury instructions, the constitutionality of one of the crimes of conviction, the effectiveness
of their defense counsel, and aspects of their sentences.
       We find no reversible error for Garcia’s conviction. Nevertheless, we vacate
Garcia’s sentence because the one-year prior prison term enhancement imposed on him
must be stricken under currently applicable law. Hence, we remand Garcia’s case for
resentencing. We also remand his case pursuant to People v. Franklin (2016) 63 Cal.4th
261, for a determination by the trial court whether Garcia was afforded sufficient
opportunity to make a record for his eventual youth offender parole hearing.
       For Austin, we vacate the special circumstance finding and sentence and remand
his case to the trial court so that the People may elect whether to retry Austin on the
special circumstance allegation. At Austin’s resentencing, the trial court shall strike the
10-year gang enhancement imposed under Penal Code section 186.22, subdivision
(b)(1)(C) and must decide whether it will exercise its discretion to strike the prior
conviction enhancements under Penal Code section 667, subdivision (a). We reject all of
Austin’s other claims of error.
                    FACTS AND PROCEDURAL BACKGROUND
       A. Procedural History
       In September 2014, the Santa Clara County District Attorney filed an information
charging Garcia and Austin with six counts related to the November 2012 home invasion
robbery of Raveesh K. and Harinder K. and the murder of Raveesh.1
       Specifically, count 1 alleged that, on or about November 30, 2012, Garcia and
Austin killed Raveesh with malice aforethought (Pen. Code, § 187)2 while engaged in the


1
  To protect the victims’ privacy, we here refer to them by their first names and the first
initial of their last name and, in the rest of the opinion, by their first names only. (Cal.
Rules of Court, rule 8.90(b)(4).)
2
  Unspecified statutory references are to the Penal Code.
                                                  2
commission of a robbery (§ 190.2, subd. (a)(17)). Count 2 alleged robbery of an
inhabited place while acting in concert (§§ 211, 213, subd. (a)(1)(A)). Count 3 alleged an
assault on Harinder with a deadly weapon (§ 245, subd. (a)(1)). Count 4 alleged criminal
threats on Harinder (§ 422). Counts 5 and 6 alleged false imprisonment of Raveesh and
Harinder, respectively (§§ 236, 237). All counts included gang allegations for Garcia and
Austin (§ 186.22, subd. (b)(1)(A)). In addition, the information alleged that Garcia had a
prior felony conviction under Health and Safety Code section 11351 (§ 667.5, subd. (b)),
and Austin had a prior strike conviction (§§ 667, subd. (b)–(i), 1170.12) and a prior
serious felony conviction (§ 667, subd. (a)) for violating sections 459 and 460,
subdivision (a).
       The trial began on April 18, 2016. The trial court empaneled a single jury to hear
evidence regarding both defendants.
       On June 7, 2016, the jury found Garcia guilty of first degree murder, robbery,
misdemeanor battery (§ 242) as a lesser included offense of assault with a deadly
weapon,3 making criminal threats, and both counts of false imprisonment. The jury
deadlocked on the robbery-murder special circumstance allegation under section 190.2,
subdivision (a)(17), and found not true the gang allegation attendant to the murder
charge.4 The jury also found not true the gang allegation regarding the battery conviction
and deadlocked on the gang allegations regarding the remaining counts. 5 The trial court
separately found Garcia’s prior felony conviction allegation true.

3
  Under the elements test, simple battery (§ 242) is not a lesser included offense of assault
with a deadly weapon (§ 245, subd. (a)(1)). (In re Robert G. (1982) 31 Cal.3d 437, 439–
441; People v. Jones (1981) 119 Cal.App.3d 749, 754.) However, Garcia does not
challenge his conviction for battery as a lesser included offense, and we therefore do not
further address it.
4
  We note that the minute order for June 7, 2016, incorrectly states that the jury found
true the gang allegation for count 1. In fact, the jury found the allegation to be not true.
In our disposition we order the minute order corrected.
5
  The record does not indicate that the trial court took any further action with respect to
the allegations on which the jury deadlocked.
                                                 3
       That same day, the jury found Austin guilty of first degree murder, robbery,
assault with a deadly weapon, making criminal threats, and both counts of false
imprisonment. The jury also found true the robbery-murder special circumstance
allegation under section 190.2, subdivision (a)(17), and the gang allegations as to all
counts. In addition, the trial court separately found Austin’s prior strike conviction and
prior serious felony conviction allegations true.
       The trial court sentenced Garcia to 25 years to life for his first degree murder
conviction on count 1, which was imposed consecutive to nine years for the robbery
conviction on count 2, eight months consecutively for each conviction for criminal
threats and false imprisonment on counts 4, 5, and 6, and one year for the prior felony
conviction enhancement, for a total term of 37 years to life in prison. The trial court also
imposed various fines and fees.
       The trial court sentenced Austin consecutively to indeterminate terms of life
without the possibility of parole for the first degree murder conviction with special
circumstances on count 1 and 30 years to life for the robbery conviction on count 2, and
determinate terms of eight years for the assault with a deadly weapon conviction on count
3, and one year and four months for each of the criminal threats and false imprisonment
convictions on counts 4, 5, and 6. The court imposed a term of five years for the gang
allegation in count 3, one year and eight months for the gang allegation in count 4, and
one year and four months for the gang allegations in counts 5 and 6. The trial court also
imposed a five-year term pursuant to section 667, subdivision (a), for Austin’s
determinate sentence and five-year terms for the prior conviction on each of the
indeterminate terms. The trial court stayed the term of the gang allegation on count 1.
The total determinate term was 36 years and four months, consecutive to the
indeterminate terms of 30 years to life and life without the possibility of parole. The trial
court also imposed various fines and fees.


                                                    4
       B. The Evidence Presented at Trial
                1. The Prosecution Evidence
       Katrina Fritz is Austin’s older sister.6 Fritz worked as a prostitute and met
Raveesh around 1999, when she was 19 years old and Raveesh became a customer of
hers. Between 1999 and 2011, Fritz visited Raveesh over 100 times at his home in Monte
Sereno, which he shared with his ex-wife Harinder.7 Raveesh compensated Fritz well for
sex and companionship, giving her hundreds of thousands of dollars and three cars over
the years. Fritz had brought Austin to Harinder and Raveesh’s house about two or three
times between approximately 2003 and 2008. Fritz was familiar with the layout of the
house and knew that Harinder and Raveesh typically left the doors unlocked. Fritz last
saw Raveesh about one year before the robbery.
       Shortly after Thanksgiving in 2012, Austin called Fritz and asked her if she was
still involved with Raveesh and whether he had money and jewelry at the house. Austin
said that he was thinking of going there, which Fritz understood to mean Austin was
contemplating robbery. Fritz told Austin not to commit the robbery, but Austin said
something “like, [c]ome on, it’s okay.” Fritz also offered to call or visit Raveesh to get
him out of the house, but Austin told her not to do so because Raveesh would suspect she
was involved, given the lack of recent contact.

6
  The district attorney charged Fritz with murder and robbery for her involvement in the
crime against Harinder and Raveesh. In February 2014, during the preliminary hearing,
Fritz agreed to be interviewed by the police. Later that year, Fritz entered into a plea
agreement with the district attorney. Fritz pleaded guilty to robbery and false
imprisonment and admitted that she committed the crimes for the benefit of a criminal
street gang, with a maximum sentence of 17 years. The district attorney agreed to
dismiss the murder charge against Fritz in exchange for her cooperation and testimony.
In addition to testifying at the trial of Garcia and Austin, Fritz testified at the trial of
Marcellous Drummer, who was tried separately for the crimes against Harinder and
Raveesh and whose appeal we previously decided. (See People v. Drummer (June 15,
2017, H041826) [nonpub. opn.].)
7
  Harinder and Raveesh divorced in 2010. At the time of the crimes, Harinder was living
at the Monte Sereno house and Raveesh was staying there in a guest room.
                                                  5
        Later in November 2012, Austin called Fritz from Monte Sereno and asked for
directions to Harinder and Raveesh’s house. When Austin arrived at the house, he told
Fritz that he saw a lot of cars. Cell phone records confirmed that Austin’s phone was in
the vicinity of Harinder and Raveesh’s house in the early afternoon of November 29,
2012.
        Later that day, Austin called Fritz again and asked for a drawing of the home’s
layout. Fritz and Austin arranged to meet in north Oakland. They met in the
midafternoon, and Fritz gave Austin a map of the residence. Marcellous Drummer was
with Austin, and Fritz saw a black man inside the car (Fritz’s BMW X5) that Austin had
driven to the meeting. Fritz explained the map to Austin and Drummer, who were both
excited, and they discussed gold and money. When Fritz asked Austin who was going
with him to commit the crime, Austin said “his partner from West Oakland.” Austin
described the partner as “This nigger from Ghost Town.” Fritz was surprised by this
statement because she did not know that Austin had any friends in Ghost Town. During
the meeting, Fritz told Austin and Drummer to be careful. Drummer responded, “I got
this,” and Austin said, “Sis, you know I know what I’m doing.”
        After leaving Austin and Drummer, Fritz drove to a hotel in San Francisco to meet
with a customer. Fritz planned to borrow a hotel room rented by Summer Sawyer, who
was dating Austin at the time. As Fritz was entering an elevator at the hotel she saw
Austin, Drummer, and a third man step out. Fritz did not get a good look at their faces,
but she observed that the third man was a black male who was shorter than Austin. Fritz
did not speak with them, and she could not say whether the third man was Garcia.
        Later that day, after 10:00 p.m., Austin called Fritz and told her he was “on his
way out there” to Harinder and Raveesh’s house. Austin called again later and said he
was at the house and was watching Raveesh, who had been drinking alcohol. Austin said
he was about to enter the house. Fritz told Austin not to do too much, to be careful, and
to stop calling her phone. Cell phone records showed that, at approximately 12:03 a.m.
                                                  6
on November 30, 2012, Austin made a one-minute-and-seven-second call to Fritz from
the vicinity of Harinder and Raveesh’s house.
       On November 29, 2012, Harinder went to bed around 10:00 p.m. After Harinder
had fallen asleep, she awoke to a knock on her master bedroom door and someone
entering the room. The intruder was Austin.8 Austin got onto the bed with an
illuminated cell phone in his hand. Harinder screamed for Raveesh, and Austin hit her in
the face with something hard, cutting her lip. Austin directed Harinder to stop screaming
and told her to march to the kitchen if she wanted Raveesh. Harinder testified that no one
threatened her during the incident.9 Austin gave her a piece of laundry to wipe the blood
from her face.
       Harinder walked to the kitchen with Austin following her. In the kitchen,
Harinder saw Raveesh’s back and the shadow of a hand on his shirt trying to push him
down. Raveesh’s hands were tied, and he was struggling to free himself. He was
standing, and Harinder saw his desperation and heard him say “Please help me.”
Harinder had also told the police shortly after the crime that she saw people beating
Raveesh. When the men were putting Raveesh down to the floor, Harinder told them not
to tie him up. She told them that Raveesh was a heart patient and would die. The men
did not respond to her. She eventually saw Raveesh—who was a large man—go down to
the floor, face down.
       Someone wrapped tape over Harinder’s eyes and mouth and tied her hands. They
asked her to get down on the floor and then bound her legs with a blanket. Harinder had
told the police that when she twice moved her hands, someone hit her, once on her leg


8
  Harinder identified Austin at trial and had previously identified him in a photographic
lineup less than a month after the crime.
9
  A police detective, however, testified that Harinder had told him the person on her bed
said that he was going to shoot her. Harinder also had told the detective that, at another
time, the intruders said they would “kill her” and told her to keep quiet if she wanted to
live.
                                                7
and once on her hands. At one point, someone tried to remove gold bangles from her
wrist; it hurt, so Harinder took the bangles off herself and handed them over. Two men
asked her where the safe and money was, and Harinder told them the money, jewelry, and
other valuables were in the master bedroom. After about an hour or two, Harinder told a
man who was sitting in a chair beside her that Raveesh had not moved. The man got up,
said he would look at Raveesh, and then came back and told her not to worry and that
they would call 911 if needed. Based on the voices she heard, Harinder was not sure
whether the man who stayed beside her was the same person who struck her face. She
heard the voices of two or three different people roaming around the house.
         Sometime later, a man told Harinder that they would be leaving soon and that she
should not move. Eventually Harinder freed her legs, got up, and looked for a phone.
She found one and called 911. All other phones in the house had been disconnected by
the perpetrators. Harinder asked for help and said that she believed Raveesh was dead.
Harinder had told the police that she shook Raveesh before and after she called 911.10
         The police arrived at Harinder and Raveesh’s house around 1:42 a.m. on
November 30. They found Raveesh lying face down, cold to the touch, and unresponsive
in the family room adjacent to the kitchen. His hands and legs were bound together,
hogtied. Raveesh’s face was masked with a distinctive mustache-patterned duct tape. A
police officer testified that the “tape had been wrapped around [Raveesh’s] head several
times covering his mouth and almost up to his nasal passage.” The officer “tried to
remove the tape from around his mouth” in an effort to “clear the airway,” and he rolled
Raveesh over on his back. Harinder asked the police to show her Raveesh, and she saw
that “they had already turned him over” and there “was so much mask on him that even
his nose, everything was masked. His whole face was masked.” An empty cardboard




10
     Harinder testified at trial that she “never touched” Raveesh before the police arrived.
                                                   8
tape roll and a pair of tan pants with a piece of the duct tape on them that matched the
duct tape on Raveesh’s face were found in the family room.
         The interior of the large house had been ransacked, but there were no signs of
forced entry. Jewelry, money, coins, and cameras were missing. A number of latex
gloves were found in the kitchen sink.11 Other latex gloves were found in the kitchen
cabinets and drawers. Police also discovered another latex glove and an empty latex
glove box on an embankment alongside a road adjacent to the house’s fence.
         The morning after the crime, Fritz heard a television news report about a home
invasion homicide in Monte Sereno. This news scared Fritz, and she called Sawyer in an
effort to reach Austin. Austin was sleeping, but he called Fritz back later. The two
arranged to meet for brunch at a restaurant in Berkeley. Austin arrived at the restaurant
with Drummer and Sawyer. Fritz asked Drummer what had happened, and he said, “Shit
went bad.” While they were sitting at a table, Austin gave Fritz $2,000.
         After their meal, in the restaurant’s parking lot Fritz asked Drummer and Austin
what happened. Austin said that “shit went crazy” and that “somebody” was hitting
Raveesh and Raveesh tried to fight back. Austin said that Harinder was “screaming,
saying that, whatever [Raveesh] owes, I’ll pay it.” Drummer said that he had not done
anything and had just sat there “watching them.” Austin acknowledged knowing
Raveesh was dead.
         When Fritz asked if Austin and Drummer had left anything at the house that could
tie them to the crime, Austin responded that they had gotten rid of everything, including
gloves, clothes, and a crowbar. Austin told Fritz that if anything happened, they would
confess, and Fritz would not have to go to jail. Fritz asked what they had done with the
stolen goods, and Austin said that they had pawned them at a pawnshop in San Francisco.




11
     Harinder testified that the latex gloves in the sink did not belong to her.
                                                    9
Austin denied using Fritz’s BMW to commit the crime and said he had taken “the other
dude’s car.”
       On a later date, Austin gave Fritz $40,000 to hide for him. At some point after
giving Fritz this money, Austin called Fritz and asked her to check whether the name
“Javier Garcia” was listed on Santa Clara County’s online inmate locator. This was the
first time Fritz had heard Garcia’s name. Fritz told Austin that the inmate locator
indicated Garcia was in custody for murder. Fritz asked Austin, “Does this have anything
to do with that thing?” and Austin said, “Yes.” On another day, Fritz met Austin and
Drummer at an auto detail shop and they laughed about “random people” being arrested
for the crime.12
       Forensic pathologist Michelle Jorden performed an autopsy on Raveesh’s body.
Dr. Jorden concluded that the manner of Raveesh’s death was homicide and that the
cause of his death was probable asphyxia due to suffocation by the duct tape over his
mouth. Dr. Jorden also found several contributory conditions to the cause of death,
including sleep apnea, deviated nasal septum, coronary atherosclerosis, and hypertensive
cardiovascular disease. Dr. Jorden observed duct tape wrapped around Raveesh’s head
three times “at the level of the eyes, including portions of the eyes.” When Dr. Jorden
observed Raveesh’s body, there was no tape at or near Raveesh’s nose or mouth. There
was a dangling portion of duct tape along one side of his body. Dr. Jorden swabbed the
duct tape that was wrapped around Raveesh’s head to preserve any trace evidence.



12
   Lukis A. was arrested and charged for the crime based on DNA found in fingernail
clippings collected from Raveesh. The charges were later dismissed when law
enforcement determined that he was in the hospital at the time of the incident and could
not have been present at the crime scene. Emergency medical personnel who had
attended to Raveesh at the crime scene had treated Lukis hours earlier.
In addition, Raven D. was arrested in connection with the crime. Raven was a prostitute
whom Fritz knew through Raveesh. The record suggests her case may have been
dismissed.
                                                10
       Dr. Jorden observed fabric binding Raveesh’s ankles and wrists. Dr. Jorden
explained that Raveesh had an enlarged, “very, very bad heart.” Because enlarged hearts
require more oxygen, the tape over Raveesh’s mouth, his obstructed nasal passages, and
the physiological stress and terror of the crime would have placed additional stress on
Raveesh’s diseased heart. Dr. Jorden observed petechial hemorrhages in Raveesh’s
eyelids, which are indicative of asphyxia or heart attack, and petechial hemorrhages in his
distal trachea and bronchi, suggesting suffocation. Dr. Jorden also determined that
Raveesh had been struck at least three times on his head based on three blunt-force-
trauma injuries to his scalp and skull. One of the head injuries was a patterned bruise to
Raveesh’s right temple, suggesting he had been struck by an object. In addition, Raveesh
had several lacerations and abrasions on his face; a bruise on his inner left arm; an
abrasion on his abdomen; and a hemorrhage in his neck muscle.
       During the investigation of the crime, Santa Clara County criminalist Tahnee
Mehmet received 67 items of evidence for analysis. The police department requested
DNA analysis of 20 evidence items (including the multiple latex gloves as one item); 13
of the 20 items were analyzed for DNA. Mehmet determined that Garcia was a possible
contributor to the major component of the DNA mixtures found on 4 of the 21 gloves
collected from Harinder and Raveesh’s kitchen sink. Specifically, Mehmet concluded
that Garcia was a possible contributor to the DNA mixtures detected on the exterior of
the fourth, ninth, seventeenth, and twenty-first gloves recovered from the sink.13 Mehmet
also found a DNA mixture of at least two individuals on the exterior of a glove found in a
kitchen cabinet and determined that Garcia was a possible contributor to that mixture.



13
  As to the fourth glove, the mixture contained DNA from at least three individuals,
including Raveesh. Regarding the three other gloves, Mehmet’s analysis revealed that
the mixtures on the ninth and seventeenth gloves contained DNA from at least three
individuals, and the mixture on the twenty-first glove contained DNA from at least four
individuals.
                                                11
         Mehmet detected a DNA mixture of at least two individuals on the piece of tape
found on the tan pants recovered from the family room. Mehmet determined that Austin
was the source of the major DNA profile found on the tape, and that Raveesh was a
possible contributor to the minor DNA profile. Mehmet concluded that Austin was also
the source of the major DNA profile in a mixture swabbed from the edge of a duct tape
roll, which Mehmet described as “an empty cardboard tape roll with a small piece of tape
still adhering.” Raveesh and Harinder were possible contributors to this mixture as well.
In addition, Austin and Raveesh were possible contributors to the major DNA component
of a mixture that included at least three people swabbed from the inner area of the tape
roll. Reddish brown stains on the tape roll tested presumptively but not conclusively for
blood.
         Mehmet did not provide specific testimony of any DNA analysis she conducted on
the tape recovered from Raveesh’s body, including the tape found on his head. Mehmet
tested areas of the duct tape she thought it was likely someone had touched.
         Mehmet determined that Drummer was a possible contributor to the DNA mixture
of at least four individuals found in swabs taken from Raveesh’s right hand. Raveesh and
Harinder contributed to this mixture as well. In addition, Mehmet developed a DNA
profile for Garcia’s cousin, Eddiebo Rodriguez. Mehmet did not detect Rodriguez’s
DNA on any of the analyzed evidence items.
         Mehmet said that, other than those items about which she specifically testified, she
did not find any DNA evidence on the items that she analyzed that matched the known
profiles of the approximately 20 people for which she tested, other than DNA associated
with the victims.
         Garcia was arrested for this crime in Oakland on December 27, 2012. At the time,
Garcia was in the company of Rodriguez and another person. Garcia told the police that
he had never been to Monte Sereno or the Los Gatos area and had never seen Harinder or
Raveesh. During his police interview, Garcia said that he did not know the case was “so
                                                 12
serious” and that the officers had “said people were dying,” but the officers had not
previously mentioned that anyone had died.
         Austin was arrested in Sacramento on December 29, 2012. At the time of his
arrest he was driving a car that had been rented by Fritz.
         Cell phone records revealed that, from November 25, 2012, through December 7,
2012, there were a total of 84 calls and nine texts between Austin’s phone and Garcia’s
phone. There were also a total of 74 contacts between Austin’s phone and another phone
associated with Garcia from November 25, 2012, through December 8, 2012. Between
December 8 and December 27, 2012, Garcia’s phone was in contact 23 times with a
phone associated with Austin.
         More specifically, from around the time of the crime, the phone records revealed:
Between 5:13 a.m. on November 29 to 8:05 p.m. on November 30, 2012, there were 10
calls between Austin’s phone and Garcia’s phone, 20 calls between Austin’s phone and
Fritz’s phone, and 12 calls between Austin’s phone and Sitteruiet T.’s phone.14 Between
8:05 p.m. on November 30 and 4:14 p.m. on December 1, 2012, there were nine calls
between Austin’s phone and Garcia’s phone, six calls between Austin’s phone and
Sitteruiet T.’s phone, and none between Austin’s phone and Fritz’s phone.
         Cellular phone expert Jim Cook reviewed the cell phone information that had been
collected and determined that Austin’s phone and Garcia’s phone were in the vicinity of
Oakland until after 9:00 p.m. on November 29, 2012. Garcia’s and Austin’s phones then
traveled south toward the crime scene. Garcia’s phone and Austin’s phone were in the
vicinity of Harinder and Raveesh’s house around and after midnight on November 30.
Garcia’s phone called Austin’s phone at 12:44 a.m. on November 30, and both phones
connected to cell towers Cook would have expected them to, had the phones been at



14
     Sitteruiet T. is Garcia’s cousin.

                                                 13
Harinder and Raveesh’s house.15 The next activity on Garcia’s phone was at 5:34 a.m.,
when it was in the area of the Francisco Bay Inn in San Francisco. Austin’s phone also
was in the vicinity of the Francisco Bay Inn from 2:32 a.m. to 8:39 a.m. on November 30,
2012.
        Oakland police officer Daniel Bruce testified as an expert on Oakland’s criminal
street gangs.16 Bruce opined that Austin and Drummer were members of the ENT gang
at the time of the charged crime.17 In addition, Bruce opined that ENT had engaged in a
pattern of criminal activity. Bruce identified certified court records showing convictions
of two alleged ENT members, Ronny Flenaugh and Gregory Jefferson.18 In response to a
hypothetical based on the facts of the charged crime, Bruce opined that the depicted
robbery would be typical of how a criminal street gang would conduct a home invasion
robbery. In addition, Bruce opined that that acts were done for the benefit of, at the
direction of, or in association with a criminal street gang.19
                2. The Defense Evidence
        Garcia testified in his own defense. Garcia was 25 years old at the time of trial.
He was raised in Oakland and had lived in several neighborhoods including Ghost Town.
Garcia denied any gang affiliation or that “Ghost Town” is a gang. Garcia admitted that



15
   Drummer’s cell phone was also in the vicinity of the crime scene at the time of the
incident.
16
   Another Oakland police officer, Roberto Garcia, testified as a gang expert and opined
that defendant Garcia was a member of the Ghost Town gang. Because the jury did not
find any gang allegations against Garcia to be true, we do not describe the gang evidence
relating to him.
17
   Bruce also testified that Garcia was a member of the ENT gang and Rodriguez was a
member of both the Ghost Town gang and the ENT gang. Bruce explained that Ghost
Town is aligned with ENT and it is possible to be a member of two gangs.
18
   Flenaugh’s first name also appears in the trial record as “Ronnie.”
19
   We describe Bruce’s testimony in more detail when discussing Austin’s challenges to
the alleged gang enhancements, post.

                                                 14
he had gone to prison in 2010 for selling drugs and that he was supervised by a probation
officer until the end of October 2012.20
       Garcia testified that Rodriguez had introduced him to Austin about three months
before the charged crime and that they had friends in common. Garcia talked with Austin
two or three times a week and used drugs and played video games with him. Garcia did
not know Fritz or Drummer prior to their prosecution for this crime. Garcia denied
committing any residential burglaries with Rodriguez, Austin, or any of Austin’s friends.
Garcia said he had never been to Monte Sereno or Los Gatos, and he denied committing
the charged crime.
       In November 2012, Garcia was selling and using drugs and living at the house of
Marquez Slaton, whom he knew as Gwiizy. Garcia used latex gloves to package the
drugs he sold because he did not want to test positive for drugs. Garcia would throw the
gloves away if they ripped, but he would sometimes return used gloves to the box, so he
could reuse them.
       On November 29, 2012, Garcia was at Gwiizy’s house when Rodriguez arrived
around 8:00 or 9:00 p.m. “talking about wanting to use some stuff.” Rodriguez stayed at
Gwiizy’s house for approximately 10-15 minutes before leaving with a “bipper” (a type
of hole puncher), Garcia’s cell phone, and an open box of latex gloves that was similar to
the box found by police outside of Harinder and Raveesh’s residence. Rodriguez had
borrowed the bipper before, and it was not unusual for him to borrow or take Garcia’s
phone. Rodriguez said that his own phone “was messing up that day,” but he did not say
whether his phone was working or not.21 Rodriguez did not tell Garcia how long he
wanted to keep Garcia’s phone.


20
   On cross-examination, Garcia said he had pleaded guilty to the drug offense but he
denied committing it, explaining that he took the blame for someone else.
21
   Cell phone records indicated that, on November 29, 2012, Garcia’s phone called
Rodriguez’s phone at 9:32 p.m. (for 41 seconds) and 9:38 p.m. (for 112 seconds).
                                               15
       Garcia next saw Rodriguez the following day. Rodriguez gave Garcia his phone
back but did not tell Garcia what he had done the previous night. Garcia first learned of
the crime when he overheard Rodriguez talking about it around a week or so before
Garcia’s arrest on December 27. Garcia testified that Rodriguez had died on January 11,
2013. Prior to Rodriguez’s death, Garcia had sought to have Rodriguez speak with
Garcia’s defense counsel about the case and Garcia’s cell phone.
       Austin also testified in his own defense. Austin admitted that he was one of the
people who robbed Harinder and Raveesh. He said he wanted to get money for his
family and that he came up with the idea to rob them. But Austin denied that he wanted
anyone to die. He acknowledged that Fritz had told him Raveesh was old and had asked
him to be careful and not to hurt Raveesh. However, Fritz had not mentioned anything
about Raveesh’s medical conditions. Austin gave Fritz his “word” that he was not going
to hurt anyone. He did not think Raveesh would resist; he thought the robbery would be
an “easy situation.” Austin claimed that he “specifically told people that it was no need
[sic] for no gun or no knife.” He was unaware whether any of his coperpetrators had
killed people before. He also did not know for sure if the others were armed, but he saw
no weapons before, during, or after the robbery.
       Austin refused to identify the individuals who had participated in the robbery with
him, and he claimed not to recall who was there. But he acknowledged there were
multiple males involved in the crime.
       Austin admitted to watching Raveesh “swigging at the alcohol” from a position
outside the house. Austin denied that he supplied the duct tape used on Harinder and
Raveesh. He admitted, however, that he grabbed the duct tape from the car, “because it
was forgotten,” and then handed it over to a coperpetrator knowing it would be used to
bind and gag Raveesh. When asked if he put on gloves before or after he retrieved the
duct tape, Austin said, “This was before I got the duct tape. No. After. I mean after.”
Austin went to the home’s master bedroom upon entry and was surprised to find Harinder
                                               16
there. Austin admitted that he hit Harinder (but only with his fist) and wanted her to stop
screaming, but he denied threatening to kill Harinder.
       Austin said that when he brought Harinder to the family room, he told the others to
be careful with her. He also saw individuals restraining and trying to tape Raveesh, who
was yelling and fighting and “struggling back.” Austin denied hearing Harinder say
anything about Raveesh having a medical condition, weak heart, or difficulty breathing.
In addition, Austin denied applying duct tape or any restraints on Raveesh or Harinder,
and he said he did not direct or suggest how they should be restrained. Austin left the
family room and went back to the master bedroom where he thought he would find a
safe. He claimed he only ransacked the master bedroom area of the house.
       Austin returned to the family room area near the end of the incident. He saw that
Raveesh was dead and that Harinder was moving around, crying, and in bad shape.
Austin said he was at the house for 40 minutes. He left the house and returned to his
hotel room at the Francisco Bay Inn after midnight. He acknowledged meeting with Fritz
at the restaurant later that day, and he corroborated much of Fritz’s testimony, including
confirming his many statements to her, giving her money, pawning the stolen goods, and
asking her to search the online inmate locater for Garcia’s name. Austin said that he had
“never hung out with” Garcia and Drummer at the same time.
       In addition to testifying about his participation in the charged crime, Austin
testified about his involvement with the ENT gang, which he formed when he was 20
years old as a memorial to friends who had died. When Austin created ENT, he did not
consider it to be a gang. Austin denied committing any crimes at the direction of
someone associated with ENT or directing others to commit crimes for his benefit as a
founder of ENT. Austin said he committed crimes for his own benefit and that of his
family.22

 We set forth additional details from Austin’s testimony regarding his gang activity
22

when discussing Austin’s challenges to the gang enhancements, post.
                                                17
       Austin admitted that he had been convicted of residential burglary in 2011 and
sentenced to state prison. He also acknowledged having been convicted of being a felon
in possession of a firearm in 2012. He was released from prison in August 2012. He
testified that he had participated in other residential burglaries in the past.
                                        DISCUSSION
       In their briefs, Austin and Garcia raise 12 and 14 issues, respectively. Below, we
address their claims under four general topic headings: (1) insufficient evidence; (2)
instructional error; (3) Garcia’s due process and confrontation clause claims; and (4)
sentencing error.23
              I. CLAIMS RELATED TO INSUFFICIENT EVIDENCE
       In this section, we address Austin’s challenges to the felony murder special
circumstance finding and the gang enhancements. As to Garcia, we examine a variety of
claims he makes related to recent modifications to the felony murder rule and the natural
and probable consequences doctrines effected by Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Sen. Bill No. 1437) (Stats. 2018, ch. 1015), and arguments Garcia advances
related to accomplice testimony.
       A. Austin’s Challenges to the Robbery-Murder Special Circumstance Finding
       Austin does not challenge his culpability for first degree murder. Instead, he
contends that he was erroneously found guilty of special circumstance murder under
section 190.2. Section 190.2 sets forth a series of special circumstances that, when found
to be true for a defendant convicted of first degree murder, impose a minimum sentence
of life without parole and a potential sentence of death. Section 190.2, subdivision
(a)(17)(A) (section 190.2(a)(17)(A)) defines as a felony murder special circumstance

23
  We note that Garcia and Austin contend that, if this court finds they forfeited certain
appellate claims of error, then, alternatively, defense counsel provided ineffective
assistance by failing to make the necessary objections in the trial court. Because we do
not resolve any specified appellate claims based on forfeiture, we need not address
appellants’ claims of ineffective assistance of counsel.
                                                  18
when “[t]he murder was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the immediate flight after
committing, or attempting to commit . . . [¶] [r]obbery in violation of Section 211 or
212.5.” The jury found true this allegation in connection with Austin’s conviction for
murder. Austin challenges this finding on factual and legal grounds.
       Specifically, Austin contends that the evidence was insufficient to prove that the
special circumstance was true on the theory that he either personally killed Raveesh by
taping him or was a major participant in the robbery who acted with reckless indifference
to human life.
       Austin claims legal error in the jury instructions that applied to the prosecution’s
contention that Austin was liable as the “actual killer.” Austin contends that the
prosecutor’s argument that the definition of “actual killer” extends to anyone who
commits an act in the chain of events leading to a death was an erroneous statement of
the law under section 190.2, subdivision (b) because it rested on a legally invalid theory
of special circumstance liability, and the trial court erred in failing to instruct the jury on
the correct meaning of actual killer. Austin also argues that the instructions given to the
jury on the special circumstance should have included CALCRIM No. 240 regarding
causation. Finally, Austin contends that trial court erred by instructing with CALCRIM
No. 730 because the jury would have found no basis in the evidence to conclude that
Austin was the actual killer.
                 1. Legal and Factual Background
       Section 190.2, the special circumstance statute, distinguishes between an “actual
killer” and a “person, [who is] not the actual killer.” (Compare §§ 190.2, subd. (b) and
190.2, subds. (c) & (d).) Section 190.2, subdivision (b) (section 190.2(b)) does not define
“actual killer” but states that “unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an actual killer . . . need
not have had any intent to kill at the time of the commission of the offense.” The
                                                  19
California Supreme Court has stated, “when the defendant is the actual killer, neither
intent to kill nor reckless indifference to life is a constitutionally required element of the
felony-murder special circumstance.” (People v. Jackson (2016) 1 Cal.5th 269, 347.)
       With respect to a person who is not an actual killer, section 190.2 requires either
that the person had the intent to kill (§ 190.2, subd. (c)), or acted with reckless
indifference to human life and was a major participant in the underlying felony (§ 190.2,
subd. (d) (section 190.2(d)). These provisions—which apply when the person is not the
actual killer—extend to any individual who “aids, abets, counsels, commands, induces,
solicits, requests, or assists any actor in the commission” of either the murder or the
felony that results in death. (§ 190.2, subds. (c) & (d).) Section 190.2(d) “was added to
existing capital sentencing law in 1990 as a result of the passage of the initiative measure
Proposition 115, which, in relevant part, eliminated the former, judicially imposed
requirement that a jury find intent to kill in order to sustain a felony-murder special-
circumstance allegation against a defendant who was not the actual killer.” (People v.
Estrada (1995) 11 Cal.4th 568, 575 (Estrada).)
       The prosecutor told the jury here that there was no evidence of an intent to kill
Raveesh. But the prosecutor argued that the jury could find the special circumstance true
either on the theory that Austin was an actual killer under section 190.2(b) or,
alternatively, that Austin was a major participant in the robbery who had acted with
reckless indifference to human life under section 190.2(d).
       For the “actual killer” special circumstance under section 190.2(b), the trial court
instructed the jurors with CALCRIM No. 730 (instruction No. 730).24 This instruction
required the People to prove that Austin had committed robbery and that he “did an act
that caused the death of another person.” For the “major participant” theory under

24
  Although instruction No. 730 does not use the phrase “actual killer,” the parties’
arguments are premised on the assumption that this instruction subsumes the
requirements of sections 190.2(a)(17)(A) and 190.2(b).
                                                  20
section 190.2(d), the trial court gave the additional instruction CALCRIM No. 703, which
told the jurors in part: “If you decide that a defendant is guilty of first degree murder but
was not the actual killer, then, when you consider the special circumstance, you must
also decide whether the defendant acted either with intent to kill or with reckless
indifference to human life.” (Italics added.)
       We first examine Austin’s contention that there was insufficient evidence of the
special circumstance finding under either of the prosecution’s theories—i.e., that Austin
was the “actual killer” or was a “major participant” in the robbery who had acted with
reckless indifference to human life.
                2. Sufficiency of the Evidence Claims
       “[T]he critical inquiry on review of the sufficiency of the evidence to support a
criminal conviction must be . . . to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia
(1979) 443 U.S. 307, 318.) “ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that is, evidence
that is reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Powell (2018) 5
Cal.5th 921, 944.) A reviewing court “presumes in support of the judgment the existence
of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.) “An appellate court may not substitute its judgment for
that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing
court may not reverse the judgment merely because it believes that the circumstances
might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139
(Ceja).) We do not reweigh the evidence or resolve conflicts in the testimony when
determining its legal sufficiency. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Rather, before we can set aside a judgment of conviction for insufficiency of the
                                                 21
evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient
evidence to support [the jury’s finding].” (People v. Rehmeyer (1993) 19 Cal.App.4th
1758, 1765.)
               a. Actual Killer
       We first examine whether there was substantial evidence that Austin was the
“actual killer” of Raveesh. In the context of the facts of this case (and as discussed
further below in our examination of Austin’s claims of legal error), for Austin to have
been the “actual killer,” the record must contain substantial evidence from which the jury
could reasonably have concluded beyond a reasonable doubt that Austin himself placed
tape on Raveesh’s face, resulting in Raveesh’s asphyxiation.
       Having reviewed the record and presuming in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence, we conclude
that there was sufficient evidence from which a reasonable juror could find that Austin
was an actual killer of Raveesh. The DNA evidence suggested that Austin participated in
taping Raveesh. In particular, Austin’s DNA was found on a piece of duct tape located
on the tan pants in the family room; the duct tape was the same kind that had been used
on Raveesh’s mouth; and Austin’s DNA was found on an empty duct tape roll that
included a brownish stain that presumptively tested positive for blood. There is direct
evidence, therefore, that Austin personally handled the roll of duct tape from which the
tape placed over Raveesh’s face was taken. 25
       DNA analyst Mehmet testified that she tested the areas of the duct tape that she
thought someone had touched. Mehmet testified about all DNA evidence (other than
DNA from the victims) that she was able to find on the evidence. From her testimony,


25
  In arguing the sufficiency of the evidence that Austin participated in the taping of
Raveesh, the prosecutor contrasted the evidence for Austin with that for Garcia.
Speaking of Garcia, the prosecutor stated, “[t]here’s no evidence that he’s the one that
taped.”
                                                22
the jury could infer that Mehmet did not find any DNA associated with any of the
perpetrators on any duct tape taken from Raveesh’s face, even though one or more of the
perpetrators must have placed the tape there. The jury could infer that the person or
people who put the duct tape on Raveesh’s face (which caused his death) were wearing
gloves. Austin himself told the jury that he put gloves on during the course of the
robbery and after he initially retrieved the duct tape from the car.
       Moreover, there is significant circumstantial evidence from which a reasonable
jury could infer that Austin personally participated in the actions of placing the tape on
Raveesh’s face. Austin was in the kitchen/family room area when Raveesh was being put
down and before his mouth was taped. It is undisputed that Austin played the central role
in planning the robbery, and he told the jury that he retrieved from the car the duct tape
used to commit the crimes. Harinder, the only surviving eyewitness who testified about
the taping of Raveesh (other than Austin himself), was unable to identify the people who
were binding Raveesh, in part because the perpetrators also wrapped tape over her eyes
and mouth and tied her hands. This act ensured that no eyewitness who was not a party
to the crime could identify who was taping up Raveesh.
       While Austin’s DNA was not found on the tape over Raveesh’s face, the
prosecutor argued that the jury could reasonably infer from the DNA on the tape on the
tan pants that Austin first taped Raveesh’s legs, before putting gloves on. There also was
significant evidence that all the perpetrators, including Austin, used gloves during the
robbery, to which the jury could reasonable ascribe the lack of DNA evidence from
Austin on Raveesh’s body. It is true Austin denied having taped Raveesh’s face, but the
jury was entitled to disbelieve Austin on this point, as it clearly did with respect to other
parts of his testimony.
       In sum, Austin’s central role in the crime, his personal handling of the roll of duct
tape used to cover Raveesh’s face, the absence of DNA evidence on the tape on
Raveesh’s face from any of the other perpetrators, and Austin’s presence in the
                                                 23
kitchen/family room area before Raveesh was taped, provide substantial evidence from
which a reasonable jury could conclude beyond a reasonable doubt that Austin himself
placed tape on Raveesh’s mouth, resulting in Raveesh’s asphyxiation.26
              b. Major Participant
       At trial, Austin conceded that he was a major participant in the crime but disputed
that he acted with reckless indifference to human life under section 190.2(d).27 On
appeal, Austin argues that the evidence was insufficient to prove reckless indifference,
principally because he did not actually kill or intend to kill, no deadly weapons were used
in the robbery, he did not know about Raveesh’s inability to breathe through his nose, he
was not present when Harinder mentioned that Raveesh was a heart patient or when
Raveesh was struggling to breathe, he did not want anyone to get hurt or die, and he
thought the robbery would be an easy one.
       Reckless indifference to human life “requires the defendant be ‘subjectively aware
that his or her participation in the felony involved a grave risk of death.’ ” (People v. Mil
(2012) 53 Cal.4th 400, 417, italics omitted.) Recklessness “encompasses both subjective
and objective elements. The subjective element is the defendant’s conscious disregard of
risks known to him or her. But recklessness is not determined merely by reference to a
defendant’s subjective feeling that he or she is engaging in risky activities. Rather,
recklessness is also determined by an objective standard, namely what a ‘law-abiding
person would observe in the actor’s situation.’ ” (People v. Clark (2016) 63 Cal.4th 522,
617 (Clark), [quoting Model Pen. Code, § 2.02, subd. (2)(c)].)



26
   Because we find that there was sufficient evidence presented to find that Austin was an
actual killer, we reject Austin’s argument that instructing the jury with instruction No.
730 was improper because there was no evidence that Austin actually killed Raveesh.
27
   In his motion for new trial, Austin argued insufficiency of the evidence for this element
of the special circumstance. The trial court denied the motion.

                                                 24
       In Clark, the California Supreme Court set forth a nonexclusive list of factors to
consider when determining whether reckless indifference to human life has been
proved. 28 (Clark, supra, 63 Cal.4th at pp. 614–621.) Generally, the greater the
defendant’s participation in the felony murder, the more likely he or she acted with
reckless indifference to human life. (Id. at p. 615.) With the parameters of reckless
indifference in mind, we decide whether the prosecution presented substantial evidence to
support a finding that Austin had the requisite mental state.
       By his own admission, Austin conceived the idea to rob Harinder and Raveesh and
planned the crime. Austin knew Raveesh was older, and he saw Raveesh (who was
overweight) drinking alcohol before invading the home. Austin rejected Fritz’s offer to
lure Raveesh out of the house so that he would not be present during the robbery for fear
Raveesh would suspect Fritz of involvement in the crime. Austin thus consciously chose
to commit the robbery at a time Raveesh would likely be home, and he proceeded to enter
the house at a time he knew Raveesh was home and had been drinking alcohol.
       Austin retrieved the duct tape from the car after it had been left behind
inadvertently and, in his account, he provided the tape to an accomplice knowing it would
be used to bind and gag Raveesh. Austin saw Raveesh being bound and beaten as he
fought back. Although Austin denied hearing Harinder say that Raveesh was a heart
patient and would die, and he denied participating in the taping, the jury could have
disbelieved him on these points. Austin’s DNA was found on the duct tape roll and on
the duct tape on the tan pants in the family room.
       Presence at the scene of the murder is a particularly important aspect of the
reckless indifference inquiry. (Clark, supra, 63 Cal.4th at p. 619.) The jury could have

28
  The factors include: (1) the defendant’s knowledge of weapons and use of a weapon;
(2) the defendant’s presence at the scene of the crime and failure to aid the victim; (3) the
duration of the felony; (4) the defendant’s knowledge of a cohort’s likelihood of killing;
and (5) the defendant’s efforts to minimize risk of violence during the felony. (Clark,
supra, 63 Cal.4th at pp. 618–623.)
                                                 25
reasonably concluded that Austin was in the kitchen/family room area of the house, the
site of the murder, for a time after he brought Harinder there. The jury could also have
reasonably concluded that he played a role in the taping or, at least, was present when
Raveesh was being put down on the floor and taped, despite Harinder’s caution about his
medical condition. In addition, Austin admitted hitting Harinder to keep her quiet,
showing his willingness to use violence on the occupants of the house. Harinder had to
receive stitches to the wound Austin inflicted on her lip. The hospital had a plastic
surgeon do the stitching because of the extent of the injury and the amount the wound had
bled before Harinder was taken to the hospital. Harinder also told the police that Austin
threatened to shoot her.
       Austin and his accomplices were in the house for at least 40 minutes—possibly
longer—and Austin did not restrain the actions of his accomplices or check on the
condition of his victims as he went about ransacking the house. As part of the crime, the
defendants disconnected the phones in the house to prevent the residents from calling for
help. The jury could have inferred that Austin, the mastermind of the robbery, planned
this detail.
       These facts constitute substantial evidence of Austin’s reckless indifference. A
law-abiding person in Austin’s position would have perceived that beating, binding, and
gagging Raveesh with duct tape created a grave danger to his life, and Austin knowingly
and actively participated in this prolonged robbery in disregard of that risk. Viewing the
entire record in the light most favorable to the judgment, we conclude that the evidence is
sufficient to support the jury’s finding that Austin was a major participant who acted with
reckless indifference to human life. (See In re Loza (2017) 10 Cal.App.5th 38, 51–54;
People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1385–1386; People v. Medina (2016)
245 Cal.App.4th 778, 791–793; cf. Clark, supra, 63 Cal.4th at pp. 618–623.)
       Having rejected Austin’s factual challenges to the special circumstance finding,
we turn now to his claims of legal error.
                                                26
                3. Legal Error in CALCRIM No. 730
        In his closing argument, the prosecutor argued that the jury could find the robbery-
murder special circumstance for Austin as an actual killer because Austin did an act that
caused the death of another person by giving the duct tape, “the instrumentality of death,”
to a coperpetrator. The prosecutor suggested in the alternative Austin was an actual killer
because the DNA evidence showed that he personally participated in the taping of
Raveesh, directly resulting in Raveesh’s death.
        Austin’s defense counsel did not object to the prosecutor’s arguments on the actual
killer theory. However, defense counsel argued to the jury in closing argument that
Austin could not be found liable as the actual killer—that is, one who did an act that
caused the death of the another—based solely on giving of duct tape to a coperpetrator.
In rebuttal, the prosecutor reiterated that Austin could be found guilty of special
circumstance murder under instruction No. 730 as an actual killer because he “did an act
that caused the death of another person either by handing over the tape [to someone] who
used the tape or by taping it himself.”
        The jury instructions given by the court in instruction No. 730 read in relevant
part:

        “CALCRIM No. 730. Special Circumstances: Murder in Commission
        of Felony (Pen. Code, § 190.2(a)(17))

        “Each defendant is charged with the special circumstance of murder
        committed while engaged in the commission of robbery in violation of
        Penal Code section 190.2(a)(17).

        “To prove that this special circumstance is true, the People must prove that:

        “1. The defendant committed or aided and abetted, or was a member of a
        conspiracy to commit robbery.

        “2. The defendant intended to commit, or intended to aid and abet the
        perpetrator in committing, or intended that one or more of the members of
        the conspiracy commit robbery.
                                                  27
       “AND

       “3. The defendant did an act that caused the death of another person.
       [¶] . . . [¶]

       “The defendant must have intended to commit or aided and abetted or been
       a member of a conspiracy to commit the felony of robbery before or at the
       time of the acting causing the death.

       “In addition, in order for this special circumstance to be true, the People
       must prove that the defendant intended to commit robbery independent of
       the killing. If you find that the defendant only intended to commit murder
       and the commission of robbery was merely part of or incidental to the
       commission of that murder, then the special circumstance has not been
       proved.”
       Austin contends that the prosecution’s theory that merely providing duct tape to
another person can make one an “actual killer” is legally insufficient because section
190.2(b), when used with the special circumstance of section 190.2(a)(17)(A), requires
that the actual killer personally kill the victim. Austin further argues that instruction No.
730—which required only that the “defendant did an act that caused the death of another
person”—failed to properly limit the special circumstance liability to a defendant who
actually killed and erased the difference between liability for first degree felony murder
and the special circumstance. We agree and conclude that, under the facts of this case,
only the person (or people) who placed the duct tape on Raveesh’s mouth were actual
killers under section 190.2(b).29

29
  Austin also contends that instruction No. 730 should have included the causation
definition set out in CALCRIM No. 240, which includes a discussion of proximate cause.
Austin’s jury did receive the language contained in CALCRIM No. 240 in CALCRIM
No. 540C, which defined causation in the context of first degree felony murder when
“another person did the act that resulted in the death.” CALCRIM No. 540C stated “An
act causes death if the death is the direct, natural, and probable consequence of the act
and the death would not have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and probable, consider

                                                 28
                a. An “Actual Killer” Must Have “Personally Killed” the Victim
       Although section 190.2(b) does not define the phrase “actual killer,” the California
Supreme Court has used the term “personally killed” when describing liability of an
“actual killer” for the felony murder special circumstance under section 190.2. For
example, the Supreme Court has stated, “[a] felony-murder special circumstance is
established even absent intent to kill, premeditation, or deliberation, if there is proof
beyond a reasonable doubt that the defendant personally killed the victim in the
commission or attempted commission of, and in furtherance of, one of the felonies
enumerated in subdivision (a)(17) of section 190.2.” (People v. Jennings (1988) 46
Cal.3d 963, 979 (Jennings); see also People v. Taylor (2010) 48 Cal.4th 574, 661
(Taylor) [stating when a defendant is charged with a felony murder special circumstance,
the prosecution need not prove “intent to kill or reckless indifference to life” as a required
element of the special circumstance so long as “the defendant is the actual killer” of the
victim]; People v. Belmontes (1988) 45 Cal.3d 744, 794 [“The United States Supreme
Court has made clear that felony murderers who personally killed may properly be
subject to the death penalty in conformance with the Eighth Amendment . . . even where
no intent to kill is shown.”], overruled on other grounds in People v. Cortez (2016) 63
Cal.4th 101.)

all the circumstances established by the evidence.” This language is identical to that in
CALCRIM No. 240, and the jury must necessarily have considered causation to convict
Austin of robbery felony-murder.
Under the felony murder instructions, the jury had to find that Austin either caused the
death (under CALCRIM No. 540A) or intentionally committed or intentionally aided and
abetted or conspired to commit a robbery whose commission was a substantial factor in
causing the death (under CALCRIM No. 540C). Austin does not challenge his first
degree murder conviction.
In addition, Austin’s argument that there was legal error for failing to instruct on
proximate cause fails because, as we explain below, proximately causing the death of
another does not fall within the actual killer prong of section 190.2(b). For these reasons,
we reject Austin’s argument that his jury should have been separately instructed with
CALCRIM No. 240 on the special circumstance allegation.
                                                 29
       In addition, in another context, the California Supreme Court has explained that
“[p]roximately causing and personally inflicting harm are two different things.” (People
v. Bland (2002) 28 Cal.4th 313, 336; id. at pp. 337–338 [“If defendant did not fire the
bullets that hit the victims, he did not personally inflict, but he may have proximately
caused, the harm.” (Italics omitted.)]. The Courts of Appeal have agreed. (See e.g.,
People v. Rodriguez (1999) 69 Cal.App.4th 341, 347–348 [“To ‘personally inflict’ an
injury is to directly cause an injury, not just to proximately cause it. The instruction was
wrong because it allowed the jury to find against [defendant] if the . . . injury was a
‘direct, natural and probable consequence’ of [defendant’s] action, even if [defendant]
did not personally inflict the injury.”]; People v. Slough (2017) 11 Cal.App.5th 419, 423
[“ ‘ “[T]he meaning of the statutory requirement that the defendant personally inflict the
injury does not differ from its nonlegal meaning. Commonly understood, the phrase
‘personally inflicts’ means that someone ‘in person’ [citation], that is, directly and not
through an intermediary, ‘cause[s] something (damaging or painful) to be endured’
[citation].” [Citation.]’ ”].)
       The California Supreme Court has also distinguished the concept of “actual killer”
under section 190.2(b) from an aider and abettor under section 190.2(d). For example, it
has stated “[s]ection 190.2(d) was designed to codify the holding of Tison v. Arizona
(1987) 481 U.S. 137 [(Tison)] . . ., which articulates the constitutional limits on executing
felony murderers who did not personally kill.” (People v. Banks (2015) 61 Cal.4th 788,
794 (Banks).) In Banks, the California Supreme Court declared “the standards we
articulate, although developed in death penalty cases, apply equally to cases like this one
involving statutory eligibility under section 190.2(d) for life imprisonment without
parole.” (Id. at p. 804; see also Estrada, supra, 11 Cal.4th at pp. 575–576.)
       Describing the Tison standard codified by section 190.2(d), the California
Supreme Court declared, “[w]ith respect to conduct, Tison and Enmund [v. Florida
(1982) 458 U.S. 782] establish that a defendant’s personal involvement must be
                                                 30
substantial, greater than the actions of an ordinary aider and abettor to an ordinary
felony murder.” (Banks, supra, 61 Cal.4th at p. 802, italics added; see also Estrada,
supra, 11 Cal.4th at p. 575 [noting that section 190.2(d) was added after elimination of
the former “intent to kill [requirement] in order to sustain a felony-murder special-
circumstance allegation against a defendant who was not the actual killer”].)
       The clear import of these cases and the statutory scheme set out in section 190.2 is
that the meaning of “actual killer” under section 190.2(b) is literal. The actual killer is
the person who personally kills the victim, whether by shooting, stabbing, or—in this
case—taping his mouth closed, resulting in death by asphyxiation.
       In arguing that section 190.2(b) does not require that the “actual killer” be the
person who personally kills but rather one who proximately causes a death, the Attorney
General relies on People v. Pock (1993) 19 Cal.App.4th 1263 (Pock). In that case, the
evidence showed that the defendant shot the victim in the upper chest and in the stomach.
One of the other coperpetrators also fired shots, one of which hit the victim in the left
shoulder. (Id. at p. 1270.) The subsequent investigation did not determine the order in
which the shots were fired. The deputy medical examiner stated the wound to the chest
would have been “more rapidly fatal,” and the other gunshot wounds contributed to the
death. (Id. at p. 1271.)
       Given the multiple concurrent bullet wounds and the lack of clarity over which
shot was fatal, the trial court in Pock had instructed the jury that “ ‘[t]he term actual killer
is defined as follows: Any person whose conduct proximately causes the death of
another is an actual killer.’ ” (Pock, supra, 19 Cal.App.4th at pp. 1272–1273.) The trial
court also instructed with CALJIC No. 3.41 regarding concurrent causes. (Pock, at
p. 1273.) In rejecting Pock’s challenge to the giving of CALJIC No. 3.41, the Court of
Appeal concluded that, “even to the extent that there was some doubt as to whether
appellant fired the actual fatal shot, the jury was properly instructed that, as under a


                                                  31
vicarious liability theory, if appellant was substantial factor [sic] in the death of [the
victim], he would be liable as an actual killer.” (Pock, at p. 1275.)
       Although we have serious doubts that the trial court’s jury instruction on
proximate cause upheld by the Court of Appeal in Pock accurately states the law with
respect to the definition of an actual killer as used in section 190.2(b), Pock does not
stand for the proposition that Austin should be considered an actual killer based on the
act of handing a roll of duct tape to another person. The evidence in Pock established
that the defendant actually shot the victim and its “unique facts” involve multiple
concurrent causes. (Pock, supra, 19 Cal.App.4th at p. 1274.) Here, by contrast, the
prosecutor argued—as does the Attorney General on appeal—that actual infliction of
harm to the victim is not necessary to find Austin to be an actual killer. Pock does not
stretch this far, and the broad language cited by the Attorney General from Pock is clearly
dicta.30


30
   The Attorney General also cites People v. Mejia (2012) 211 Cal.App.4th 586, 603,
612–613 (Mejia), but includes only an explanatory parenthetical that a “defendant who
commits [a] ‘provocative act[,]’ the natural and probable consequence of which is the use
of deadly force, can be held liable for special circumstances murder.” Mejia addressed
the question “whether the gang murder special circumstance can apply where liability for
first degree murder attaches based upon the theory of provocative act murder.” (Id. at p.
610.) The court concluded, “based upon the interplay between the language of section
190.2, subdivision (a)(22), and the theory underlying provocative act murder as set forth
in [People v. Cervantes (2001) 26 Cal.4th 860] and [People v. Concha (2009) 47 Cal.4th
653], that the special circumstance applies in the immediate context.” (Id. at p. 612.)
The court analyzed section 190.2, subdivision (a)(22) and subdivision (c), both of which
include an intent to kill requirement. (Id. at pp. 612–613.) Mejia is therefore inapposite
because it does not address whether a defendant can be found liable for a special
circumstance even when he or she does not harbor an intent to kill. In Austin’s case, the
prosecution conceded that there was no evidence of an intent to kill Raveesh; thus,
Austin’s liability for special circumstance murder depended on him being the actual killer
under section 190.2(b) or a major participant who acted with reckless indifference to
human life under section 190.2(d). The Attorney General also cites a number of other
cases, including a civil torts case (Morris v. De La Torre (2005) 36 Cal.4th 260), which
are clearly inapplicable to the question here.
                                                  32
       The Attorney General calls our attention to two other cases upholding murder
convictions in cases in which the defendant and his coperpetrators fired bullets at the
victim, and it was not clear which bullet killed the victim. (People v. Sanchez (2001) 26
Cal.4th 834 (Sanchez); People v. Cornejo (2016) 3 Cal.App.5th 36 (Cornejo).) Like
Pock, these cases (which do not discuss section 190.2 at all), are inapposite because they
involve concurrent causes—that is causes that were “operative at the time of the death
and acted with another cause to produce the death.” (Sanchez, at p. 847; see also
Cornejo, at p. 61.) The prosecution’s theory here, by contrast, was not that Austin did an
act concurrently with a coperpetrator but instead that Austin first did something (i.e.,
provide the tape) and then another person subsequently did an act that caused the death.
       The Attorney General cites no case holding that a person who hands a murder
weapon to another person but who does not directly inflict any harm on the victim
qualifies as an “actual killer” under section 190.2(b). Our independent research has
likewise not found any such authority. While handing the murder weapon to the person
who actually kills the victim might result in liability under sections 190.2(c) or 190.2(d),
it does not qualify as an act of an actual killer under section 190.2(b). (See, e.g., In re
Ramirez (2019) 32 Cal.App.5th 384, 404 [examining whether the defendant’s act of
supplying the guns that were ultimately used in the attempted robbery was sufficient to
support a finding under section 190.2(d)].)
       Austin’s defense counsel did not object to the prosecutor’s argument that the jury
could find that Austin was an actual killer based on his handing the tape to someone else
or request an instruction clarifying the term “actual killer.” While recognizing that his
defense counsel did not make a timely objection, Austin argues against forfeiture,




                                                 33
contending that the instructions were legally insufficient and therefore affected his
substantial rights under section 1259.31
       We agree with Austin that he has not forfeited his claim of legal error. “A trial
court has no sua sponte duty to revise or improve upon an accurate statement of law
without a request from counsel [citation], and failure to request clarification of an
otherwise correct instruction forfeits the claim of error for purposes of appeal.” (People
v. Lee (2011) 51 Cal.4th 620, 638.) “But that rule does not apply when . . . the trial court
gives an instruction that is an incorrect statement of the law.” (People v. Hudson (2006)
38 Cal.4th 1002, 1012 (Hudson); see also People v. Guiton (1993) 4 Cal.4th 1116, 1131
[“Trial courts have the duty to screen out invalid theories of conviction, either by
appropriate instruction or by not presenting them to the jury in the first place.”]; § 1259.)
       “ ‘The rules governing a trial court’s obligation to give jury instructions without
request by either party are well established. “Even in the absence of a request, a trial
court must instruct on general principles of law that are . . . necessary to the jury’s
understanding of the case.” [Citations.] That obligation comes into play when a statutory
term “does not have a plain, unambiguous meaning,” has a “particular and restricted
meaning” [citation], or has a technical meaning peculiar to the law or an area of law
[citation].’ [Citation.] ‘A word or phrase having a technical, legal meaning requiring
clarification by the court is one that has a definition that differs from its nonlegal
meaning.’ ” (Hudson, supra, 38 Cal.4th at p. 1012, italics omitted.) “We consider the
challenged instruction in the context of the instructions and record as a whole to ascertain
whether there is a reasonable likelihood the jury impermissibly applied the instruction.”
(People v. Rivera (2019) 7 Cal.5th 306, 329 (Rivera).)



31
  Penal Code section 1259 provides in part: “The appellate court may also review any
instruction given, refused or modified, even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected thereby.”
                                                  34
       As we have explained above, the meaning of actual killer is “ ‘ “particular and
restricted” ’ ” (Hudson, supra, 38 Cal.4th at p. 1012), and its application must be literal.
The jury should have been instructed that it could find true the special circumstance
under sections 190.2(a)(17)(A) and 190.2(b) only if the prosecution proved beyond a
reasonable doubt that Austin “personally killed” Raveesh. (See Jennings, supra, 46
Cal.3d at p. 979; Banks, supra, 61 Cal.4th at p. 794.) Instead, the jury was instructed
only that the prosecution must prove that Austin “did an act that caused the death of
another person.”
       The instruction as worded allowed the jury to find the special circumstance true if
it determined that Austin “caused” Raveesh’s death even if it did not find beyond a
reasonable doubt that Austin participated in the taping of Raveesh’s face. Indeed, the
prosecutor made this very argument when he said of instruction No. 730 that the jury
could “find the special circumstance true, that [Austin] did an act that caused the death of
another person. At the minimum, at his minimizing level of his guilt, he gave the duct
tape which was the instrumentality of death.”
       The prosecutor’s argument was consistent with the jury instruction given by the
court but was inconsistent with the law under sections 190.2(a)(17)(A) and 190.2(b).
Therefore, the language of instruction No. 730 given to Austin’s jury was wrong because
it allowed the jury to consider Austin’s special circumstance liability based on a theory
contrary to law, and constituted legal error.32

32
   The wording of the pattern instruction CALCRIM No. 730 and the bench notes that
reference the sua sponte duty to instruct with CALCRIM No. 240 “[i]f the facts raise an
issue whether the homicidal act caused the death” (Bench Notes to CALCRIM No. 730
(2019) p. 464) may have contributed to the legal error here. It is unclear what authority
the bench notes rely on for this proposition. In any event, bench notes are not authority
for legal principles. (See People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7 [recognizing
that jury instructions and accompanying bench notes are not law].) As we have
explained, we do not see a basis for applying section 190.2(b), which extends only to a
person who personally kills, to a person who only proximately caused the death. The

                                                  35
              b. Prejudice
       We have concluded above that the special circumstance was submitted to Austin’s
jury on a legally invalid theory—that is, that the jury could find true the special
circumstance allegation if it concluded that Austin did an act that “caused” Raveesh’s
death (by handing the duct tape to a coperpetrator) even if Austin did not personally kill
him. 33 As further described above, there was substantial evidence presented to the jury
that Austin was a major participant in the robbery who acted with reckless indifference to
human life (§ 190.2, subd. (d)), and Austin does not challenge the separate instruction
given on that theory of liability for the special circumstance. Therefore, the special
circumstance question was also submitted to the jury on a valid theory.
       When a jury receives both a valid and an invalid legal theory—that is, where there
is alternative-theory error—we apply the harmless error test drawn from Chapman v.
California (1967) 386 U.S. 18 (Chapman). (People v. Aledamat (2019) 8 Cal.5th 1, 3, 7,
fn. 3 (Aledamat).) Under this standard, we “must reverse the conviction unless, after
examining the entire cause, including the evidence, and considering all relevant


Advisory Committee on Criminal Jury Instructions may wish to consider revisions to the
language of CALCRIM No. 730 to clarify the concept of an actual killer for cases falling
under section 190.2(b) that do not involve an intent to kill, as with section 190.2(a)(17).
33
   We note that we have concluded the trial court erred by providing an instruction that
was inadequate, as a matter of law, because it permitted the jury to find Austin liable for
the special circumstance based on a non-personal, indirect killing. Stated differently,
because the jurors were not provided a proper definition of actual killer, they reasonably
could have concluded under the instructions that Austin was an actual killer based on
general causation principles. This amounts to legal error, rather than factual error.
Further, the prosecutor’s theory here was not “incorrect only because the evidence does
not support it.” (People v. Aledamat (2019) 8 Cal.5th 1, 7.) Instead, the prosecutor’s
theory failed to come within the special circumstance as properly defined. The jury here
would have had no reason to know this given the instructions and prosecutor’s
arguments. Thus, the theory presented to the jury was a legally invalid theory, not a
factually invalid theory that “involves a mistake about a fact that the ‘jury is fully
equipped to detect’ [citation] or a theory that ‘while legally correct, has no application to
the facts of the case.’ ” (Rivera, supra, 7 Cal.5th at p. 329.)
                                                 36
circumstances, [we] determine[ ] the error was harmless beyond a reasonable doubt.” (Id.
at p. 13.)
          We cannot determine the legal error here was harmless beyond a reasonable doubt.
The prosecutor expressly relied upon the invalid legal theory. The prosecutor argued to
the jury that Austin “did an act that caused the death of another person either by handing
over the tape who used the tape [sic] or by taping it himself.” The wording of the jury
instruction allowed for the prosecutor’s erroneous interpretation. The instruction failed to
inform the jury that, in order for it to find true the special circumstance if it did not
believe that Austin was a major participant who acted with reckless indifference to
human life under section 190.2(d), then it must find beyond a reasonable doubt that
Austin personally killed Raveesh.
          In light of the instructions and the prosecutor’s argument, we conclude there is a
reasonable likelihood that the jury understood the actual killer theory in a legally
impermissible manner. (See People v. Canizales (2019) 7 Cal.5th 591, 614–615
[concluding that the trial court’s error in instructing on the factually unsupported kill
zone theory, combined with the lack of any clear definition of the theory in the jury
instruction and the prosecutor’s misleading argument, could reasonably have led the jury
to find liability based on a legally inaccurate version of the kill zone theory].)
          Furthermore, handing the duct tape to a coperpetrator would not—by itself—
establish that Austin subjectively acted with awareness of a grave risk of death, as
required by section 190.2(d). This circumstance distinguishes Austin’s case from
Aledamat, where the Supreme Court concluded that if the jury applied a common
understanding to the undefined term “inherently deadly,” “it would necessarily find the
box cutter deadly in the colloquial sense of the term—i.e., readily capable of inflicting
deadly harm—and that defendant used it as a weapon.” (Aledamat, supra, 8 Cal.5th at
p. 15.)


                                                   37
        For these reasons, we cannot conclude beyond a reasonable doubt that the jury
finding on the special circumstance rested on a legally valid theory. We therefore reverse
the special circumstance finding, vacate Austin’s sentence of life without the possibility
of parole, and remand to the trial court for the People to determine whether to retry
Austin on the section 190.2 special circumstance allegation.
        B. Austin’s Challenges to the Gang Enhancements
        The jury found true with respect to each count of conviction that Austin had
committed the crimes “for the benefit of, at the direction of, or in association with a
criminal street gang, with the specific intent to promote, further, or assist in criminal
conduct by gang members” under section 186.22, subdivision (b). Austin argues that the
evidence introduced by the People in support of these enhancements violated his Sixth
Amendment right to confront the witnesses against him and his Fourteenth Amendment
right to due process and, therefore, they must be set aside. Austin also argues that
insufficient evidence supports the jury’s true findings.
                1. Factual Background
        Many of Austin’s contentions relate to the timing of various pieces of evidence.
As described above, Austin was charged with crimes alleged to have been committed on
or about November 30, 2012. Austin was arrested for those crimes on December 29,
2012.
        The People’s theory at trial with respect to the gang allegations was that Austin
was a member of the Oakland-based gang ENT; Austin committed the crime with other
gang members because they would refuse to cooperate with the police in any subsequent
investigation; and the crime benefitted the gang by bringing money and prestige to the
gang. In his closing argument, the prosecutor emphasized that Austin’s own testimony
proved many of the elements of the gang allegations. Austin’s theory at trial was that he
committed the crime for his personal benefit and not in association with ENT. Austin
emphasized that the prior offenses characterized as predicate offenses by the People’s
                                                 38
gang expert did not include gang charges, and there was no evidence introduced of
Austin displaying gang signs. Austin’s participation in music videos referencing guns
and money reflected rap culture rather than his membership in a criminal street gang.
       The two primary trial witnesses who provided testimony relevant to the gang
allegations against Austin were the prosecution’s gang expert, Daniel Bruce, and Austin
himself. 34
              a. Testimony of the Gang Expert
       Bruce was an officer with the Oakland Police Department assigned to the gang
unit and testified as an expert in Oakland criminal street gangs. Bruce was raised in
Oakland. He had been “working with gangs” during his nine years with the Oakland
Police Department. Bruce moved to the gang unit in 2013; prior to that time, he had
served as a patrol officer and on a “crime reduction team,” targeting gangs, among other
criminal activities. Bruce had worked on “[e]asily a thousand” gang-related crimes and
had participated in “[h]undreds” of gang-related arrests. Bruce had interviewed
“[h]undreds” of people about “gang topics,” including perpetrators and victims of gang
crimes.
       Bruce testified that gang members primarily identify themselves with tattoos,
social media postings, and hand signs. Bruce stated that one of the “main activities” of
gang members is making music videos in which they talk about their gang and putting
them on social media. “It’s modern-day graffiti.” Gangs use social media to recruit new
gang members. Tattoos are often a sign of gang association. Bruce has had no
experience with a person having a tattoo with the name of a gang where that person is not
a member or an associate of that gang.



34
   Officer Roberto Garcia also testified as an expert in Oakland criminal street gangs.
However, his testimony related to Ghost Town, a gang allied with ENT, and his
testimony is not relevant to Austin’s appeal of the gang findings.
                                                39
       For gang members, there is a benefit to committing a crime with another gang
member. “Just like any other profession, when you do a job, you would want someone
who has the same level of experience to do that job with you. You know that the job is
going to get done right. And you know that, at least in gang culture after the fact, that
that person is going to be less likely to snitch.” Oakland gangs do not allow their
members to snitch on each other.
       In the gang unit, Bruce focused primarily on four gangs, one of which was ENT.
He had spoken with about 20 people who have told him they are members of ENT.
ENT’s main rival among Oakland gangs is the Case gang. ENT is one of the top two
gangs in Oakland in terms of the number of murders associated with it. ENT members
commonly use the words “Stubby” and “ENT” and dollar signs as tattoos. “ENT” is an
acronym that stands for the first initials of names or monikers of three men who had died.
ENT has a hand sign associated with it.
       Bruce first became familiar with ENT in 2011, when the “name came into usage.”
When Bruce first started hearing about ENT, it included about a dozen members,
including Austin, Sean Hampton, and Ronny Flenaugh, among others.35 Bruce
conducted investigations into crimes committed by or against ENT members in 2011.
ENT claimed a particular territory of Oakland in 2011 and 2012. Prior to 2011, Bruce
worked on cases involving individuals “before they were ENT.” Between 2010 and
2013, Bruce investigated “dozens of crimes related to ENT.” Bruce conducted a wiretap
investigation of ENT in 2013 during which he investigated 50 crimes in August alone.
Bruce has arrested ENT members. He had been involved in investigation of crimes
committed by ENT in cities “[a]ll over the Bay Area.”
       Bruce had known Austin since 2008. Austin’s nickname is “Sunny D.” Austin
has tattoos that say “Stubby” and “ENT.” Bruce had spoken to Austin at least 20 times,

35
  Defense counsel did not object to Bruce’s testimony that Austin, Hampton, and
Flenaugh were longtime members of ENT.
                                                40
although Austin had never discussed ENT with Bruce. Almost every time Bruce saw
Austin, Austin was with people that Bruce believed were associated with ENT.
       Bruce testified that there are over a hundred people in ENT, and some of them are
in custody. “A large percentage of the core group of original ENT members are in
custody,” and “[a] lot” of the original 12 members are dead. Bruce also testified, without
objection from defense counsel, about information he learned in 2013 with respect to the
ENT wiretap, particularly involving its rivalry with the Case gang.36 Bruce included
Austin as a target in the 2013 wiretap investigation, even though Austin was already in
custody on this case by then, because Austin was one of the “founding members and
original higher-ranking persons” in ENT, and other members might communicate with
him. Bruce believed that the homicide charge against Austin elevated his status in ENT
because it would result in increased respect among its members.
       ENT recruits new members using social media. In their social media postings,
ENT portrays an image of “wealth, high-end luxury vehicles, high-end clothing, high-end
jewelry, and the flashing of large amounts of currency.” ENT posts videos to YouTube.
       Bruce testified about two publicly accessible music videos involving ENT that he
located on YouTube. The first was for a song called “Money is the Plan.” Bruce
identified the people in the video but did not mention Austin’s name. The song featured
in the Money is the Plan video references ENT, “Stubby,” large amounts of money,

36
   Although Austin contends he sufficiently objected in motions in limine to admission of
the gang testimony under Crawford v. Washington (2004) 541 U.S. 36 to preserve a
standing objection to Bruce’s testimony, the trial court in response to the defense’s
motion stated, “I do not intend to make advance rulings with regard to the experts . . . [¶]
I’m confident that [the prosecutor] is well aware of the evidentiary limitations that go
along with Crawford and will act accordingly in proving the predicates.” The trial court
cautioned, “So any other objections as to foundation or lack of qualifications, certainly,
you’ll be able to voir dire any expert you choose to, and I’ll take those objections at the
time.” Based on the trial court’s ruling, it was incumbent on defense counsel to articulate
specific objections to Bruce’s testimony rather than rely on general pretrial motions to
exclude his testimony.
                                                41
drugs, and guns. One of the individuals in the video references “duct tape.” Bruce
testified “[b]ased on my experience with the gang and their pattern of criminal activity, I
know that duct tape is [a] common tool used during home invasion burglaries, residential
burglaries that the gang is known for committing.” The lyrics also include the phrase,
“Free Nardy,” a reference to an ENT gang member incarcerated for the attempted murder
of a police officer. The video appeared to have been posted in November 2012, although
Bruce believed it had originally been posted by someone else. It was not clear when the
video was first posted.
       The second video was of a song, “Real Stubby ENT.” Bruce relied on the video in
forming his conclusion that ENT is a criminal street gang. Austin is in the video; he
shows his tattoos that say “Stubby” and “ENT” and states that “he’s ENT” “for his dead
homies who are resting in peace.” The lyrics of “Real Stubby ENT” reference large
amounts of money, guns, and driving foreign cars. The opening image of the video
features a Range Rover, a type of vehicle Bruce associated with ENT. Austin drove a
BMW that had a number of bullet holes in it. Bruce testified that Hampton, whom Bruce
had previously identified as a founding member of ENT, is also in the “Real Stubby
ENT” video.
       Bruce had viewed a phone-recorded video that shows Austin talking on the phone
with another person about a recent shooting and about the relationship between ENT and
the Case gang. In the video, Austin states that no Case gang members have ever been in
foreign cars or had nice cars, while ENT members have nice cars. Austin told the person
on the phone that “he’s lucky that it wasn’t them who shot him because they would have
continued to shoot him guaranteeing his death rather than just wounding him.” Defense
counsel did not object to this testimony, and the actual video was not introduced into
evidence or played for the jury. The video was likely made in late November or early
December 2012.


                                                42
       Bruce was familiar with Jamarco Jackson, a high-ranking member of ENT whose
nickname was “Arco.” Jackson had done a drawing that was confiscated from him while
he was in custody in Alameda County and which was introduced into evidence without
objection. The bottom of the drawing says, “By ENT Arco.” The drawing depicts the
ENT hand sign, and the word “Case” with a line drawn through it. The drawing includes
the phrase “Free my brudders.” ENT members sometimes referred to each other as
“brudders.” The drawing has a list of names, including “Sunny D” and “Ronny
Flenaugh.” The drawing includes drawings of guns, bullets, dollar signs, and the BMW,
Mercedes, and Lexus logos. To the right of the word “Stubby,” the drawing has the
phrase, “[n]o warning shots,” which to Bruce signified ENT’s “propensity to violence.”
The drawing has headstones with the names of dead ENT members on them. The
drawing is not dated and had been confiscated from Jackson approximately two months
prior to Austin’s trial. Bruce believed the drawing was done “long after” Austin and
Garcia were arrested.
       Bruce’s opinion was that ENT is a gang that has engaged, either collectively or
individually, in a pattern of criminal activity. He formed that opinion based on the 2013
wiretap investigation. He also had that opinion prior to 2013.
       Bruce believed Austin was a member of and an active participant in the ENT street
gang on November 29 and 30, 2012, based on personal contacts with Austin, Bruce’s
investigation of crimes associated with ENT, music videos that Bruce has reviewed in
which Austin sings about ENT, and the cell phone video described above. Bruce
believed that Austin was still a member of ENT at the time of Austin’s trial. Some of
Bruce’s information was “[c]larified with police reports.” Bruce had not received any
police reports “in this case detailing the facts of the case we’re here on today.” Defense
counsel did not ask Bruce to clarify which aspects of his testimony depended on police
reports authored by other officers.


                                                43
       Bruce was familiar with Marcellous Drummer based only on Bruce’s research into
the ENT gang; Bruce had never met Drummer. Records associated with Drummer’s
Facebook and Instagram accounts were introduced through Bruce without objection.
Bruce identified one of the photos on Drummer’s Facebook account as Ronny Flenaugh
holding a large bag of US currency. The words “Stubby ENT” appear on a birthday cake
in one of the photos. One of the pages of Drummer’s Instagram account features a photo
of Drummer and text that reads, “Free my brother, Sunny ENT G for real.” There was a
photo of Austin in Drummer’s Instagram account. Defense counsel did not object to any
of this testimony.
       Bruce opined that Drummer was a member of the ENT criminal street gang on
November 29, 2012. His opinion was based on “those social media postings where
[Drummer] is making comments referring to ENT,” and posting photographs of dead and
current ENT members. Bruce also based his opinion on the fact that Drummer had been
stopped in a car with other ENT members, although this incident did not result in any
charges, and Bruce did not participate in the car stop.37 Bruce was not able to say
whether Drummer was an “active participant” in ENT, “just based purely on [Bruce’s]
lack of knowledge on his history, criminal history.”
       Bruce was familiar with Ronny Flenaugh. The prosecutor asked, “Are you
familiar with an offense from June 3rd of 2012 in the City of Oakland that was a
robbery.” Bruce, answered, “[y]es.” Through Bruce, the prosecutor then introduced a
certified record of a prior conviction of Flenaugh. In response to the prosecutor’s
question, “does this certified prior conviction reflect a conviction for the robbery in June
3rd of 2012 we talked about?” Bruce answered, “Yes.” When asked to describe his
personal involvement in that case, Bruce stated that he saw a description of the car

37
  The jury heard from another witness, Oakland Police Officer William Bergeron, that,
on February 10, 2011, Bergeron had stopped a car in east Oakland that was driven by
Austin, and Drummer was in the car.
                                                 44
involved on the police department’s e-mail system. Bruce was familiar with the car
described in the e-mail, and he knew the car was associated with Flenaugh. Bruce had no
other involvement in the case leading to Flenaugh’s robbery conviction.
        Bruce was familiar with Gregory Jefferson. Bruce was familiar with an incident
on January 18, 2012, involving Jefferson and two handguns because Bruce participated in
Jefferson’s arrest that day. Jefferson was charged with possession of a firearm in a public
place, and the prosecution introduced a certified conviction record for Jefferson from that
incident. Bruce’s opinion was that Jefferson was a member of ENT on January 18, 2012,
based on “prior contacts, prior long-term investigations where Mr. Jefferson was one of
the targets, social media postings, and observations,” all of which Bruce had personally
done.
        The prosecutor posed a detailed hypothetical to Bruce closely modeled on the facts
of the crime involved here. Based on that hypothetical, Bruce opined that the crimes
were done for the benefit of, at the direction of, or in association with a criminal street
gang.
              b. Testimony of Austin
        Austin testified in his own defense. He planned and participated in the robbery of
Harinder and Raveesh’s residence in order to get money for himself and his son. Austin
used the money from the robbery for Christmas presents and housing; he did not use any
to benefit ENT.
        Austin had known Officer Bruce since 2008. Austin had known Drummer since
2005 and was friends with him. Austin’s nickname was “Sunny D” because of his light-
colored skin and the first letter of his first name, Deangelo.
        Austin founded ENT when he was 20 years old as a memorial for his best friends
who had died. His friends, for whom ENT was a memorial, were violent people involved
in criminal activity. Austin testified, “ENT’s a gang. I mean, but ENT’s a gang because
based on the younger people make it–the younger people that’s younger than me, really
                                                 45
make it a gang. But, me, myself, I didn’t, I didn’t look at it as a gang when it formed. I
told you how I looked at it. It was more of a memorial for my brothers. From there, I
guess it ran off to the younger people. They just ran with it like that. And at this point in
time, in 2016, I definitely consider ENT a gang.”
        About a dozen people previously associated with ENT are now dead. Austin
equated ENT’s fight with the Case gang to the battle between Norteños and Sureños.
Austin agreed that there are “ENT people who would shoot people,” and Austin had
friends in ENT who “shoot.” When Austin was in ENT in 2012, there were more than
three people in the group, they had a common name, and some of the people in the group
committed crimes. Austin agreed that some people in ENT in 2012 were illegally in
possession of firearms, and in 2011 some people in ENT committed residential
burglaries.
        Austin committed two residential burglaries in 2009. In one of the burglaries, the
victim was an Indian man. Austin was convicted of residential burglary in 2011. Austin
was convicted of being a felon in possession of a firearm in 2012. Austin was released
from prison in August 2012. Between August and November 2012, Austin made $20,000
through criminal activity. Austin denied the prosecutor’s suggestion that Austin had
made this money through burglaries; instead, Austin testified it came from his work as a
pimp.
        Austin got the ENT tattoo when he was in prison so that he could “keep up with
the rest of the prisoners.” Austin did not do the video to promote ENT. Singing about
having sex with lots of women, money, drugs, and ENT is “part of rap culture.” “ENT”
was his group’s “rap name.” Austin stated, “The ENT image is just a rap name like Cash
Money Records or Death Row. It’s just a rap title as far as that was going to be our
record label.” Austin liked nice things, “like any rapper would.” The image of ENT the
gang is “just a bunch of people hanging out and being a gang,” in foreign cars and having
money. As to the phone call captured on the video that Bruce had testified about, Austin
                                                 46
was “basically roasting” the other person on the phone because they were in a dispute
“over a girl.”
       Although Austin admitted his involvement in the Monte Sereno robbery, he would
not testify about the names of the others involved because he “live[s] by the code of the
Oakland streets in general.”
                 c. Testimony of Other Witnesses
       Erin Lunsford was the lead detective on the robbery case. Lunsford observed
tattoos on Austin that read “ENT” and “Stubby.” Lunsford observed tattoos on Drummer
that read “ENT” and “MOET.” “MOET” stands for “money over everything.”
                  2. General Legal Principles
       Examination of Austin’s contentions with respect to the gang enhancements
requires consideration of the interaction among the statutory elements of the gang
enhancement and the dictates of the confrontation clause, particularly the United States
Supreme Court’s decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and
the California Supreme Court’s decision in People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez).
                 a. Elements of the Gang Enhancement
       “Penal Code section 186.22, also known as the Street Terrorism Enforcement and
Prevention Act (the STEP Act or Act), was enacted in 1988 . . . . The Act imposes
various punishments on individuals who commit gang-related crimes—including a
sentencing enhancement on those who commit felonies ‘for the benefit of, at the direction
of, or in association with any criminal street gang.’ ” (People v. Prunty (2015) 62
Cal.4th 59, 66–67 (Prunty).)
       “The STEP Act defines a ‘criminal street gang’ as an ‘ongoing organization,
association, or group.’ (§ 186.22(f).) That ‘group’ must have ‘three or more persons,’
and its ‘primary activities’ must consist of certain crimes. (Ibid.) The same ‘group’ must
also have ‘a common name or common identifying sign or symbol,’ and its members
                                                47
must be proven to have engaged in a ‘pattern of criminal activity’ by committing
predicate offenses. (Ibid.)” (Prunty, supra, 62 Cal.4th at p. 71.)
       “The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes be one of the group’s
‘chief’ or ‘principal’ occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323
(Sengpadychith).) The trier of fact may consider “the circumstances of the present or
charged offense in deciding whether the group has as one of its primary activities the
commission of one or more of the statutorily listed crimes.” (Ibid.) Expert testimony can
serve as the basis of sufficient proof of the gang’s primary activities. (Id. at p. 324.)
       Under the STEP Act, a “ ‘pattern of criminal gang activity’ means that gang
members have, within a certain time frame, committed or attempted to commit ‘two or
more’ of specified criminal offenses (so-called ‘predicate offenses’). (Pen. Code,
§ 186.22, subd. (e).)” (People v. Gardeley (1996) 14 Cal.4th 605, disapproved of on
other grounds by Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) The predicate offenses
need not themselves be “gang related.” (Gardeley, at p. 621.) It is not clear whether the
predicate offenses must be committed by gang members. (Compare People v. Augborne
(2002) 104 Cal.App.4th 362, 375 with Prunty, supra, 62 Cal.4th at p. 76.)
       The prosecutor may prove the STEP Act’s “requisite ‘pattern of criminal gang
activity’ by evidence of ‘two or more’ predicate offenses committed ‘on separate
occasions’ or by evidence of such offenses committed ‘by two or more persons’ on the
same occasion.” (People v. Loeun (1997) 17 Cal.4th 1, 10 (Loeun).) If the prosecution
wishes to prove the predicate offenses by showing their commission “on a single
occasion by ‘two or more persons,’ it can . . . rely on evidence of the defendant’s
commission of the charged offense and the contemporaneous commission of a second
predicate offense by a fellow gang member.” (Ibid.) In addition, the predicates “need
not consist of evidence that different Penal Code provisions were violated.” (Id. at p. 10,
fn. 4.) However, “[c]rimes occurring after the charged offense cannot serve as predicate
                                                 48
offenses to prove a pattern of criminal gang activity.” (People v. Duran (2002) 97
Cal.App.4th 1448, 1458 (Duran).)
              b. Confrontation Clause
       In Crawford, the United States Supreme Court overruled decades of confrontation
clause jurisprudence and held that the prosecution may not admit at trial previously made
“testimonial statements” of a witness unless that witness testifies at the trial or the
witness “[is] unavailable to testify, and the defendant . . . had a prior opportunity for
cross-examination.” (Crawford, supra, 541 U.S. at pp. 53–54.)
       Following Crawford, the California Supreme Court in Sanchez held that, when
any expert relates to the jury case-specific, out-of-court statements and treats the content
of those statements as true to support the expert’s opinion, the statements are hearsay and
must either fall within a hearsay exception or be independently proven by competent
evidence. (Sanchez, supra, 63 Cal.4th at pp. 684–686.) Further, if the case is one in
which a prosecution expert seeks to relate testimonial hearsay, there is a violation of the
confrontation clause unless the witness testifies at trial or is unavailable and the
defendant had a prior opportunity to cross-examine the witness. (Id. at p. 686.)
       Under Sanchez, “a court addressing the admissibility of out-of-court statements
must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the
statement one made out of court; is it offered to prove the truth of the facts it asserts; and
does it fall under a hearsay exception? If a hearsay statement is being offered by the
prosecution in a criminal case, and the Crawford limitations of unavailability, as well as
cross-examination or forfeiture, are not satisfied, a second analytical step is required.
Admission of such a statement violates the right to confrontation if the statement is
testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at p. 680.) “Whether a statement is
testimonial turns on ‘ “whether, in light of all the circumstances, viewed objectively, the
‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial
testimony.’ ” ’ ” (People v. Armstrong (2019) 6 Cal.5th 735, 790.)
                                                  49
       Sanchez also reinterpreted the hearsay rules under California law applicable to
expert testimony. The court reiterated that an expert may testify about “background
information regarding his knowledge and expertise and premises generally accepted in
his field.” (Sanchez, supra, 63 Cal.4th at p. 685.) However, an expert may not “relate as
true case-specific facts asserted in hearsay statements, unless they are independently
proven by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.)
Austin’s trial occurred a few weeks before the California Supreme Court issued its
decision in Sanchez.
       “Since Sanchez, California appellate courts have held that expert testimony about
‘the general attributes of the . . . gang, such as the gang’s culture, the importance placed
on reputation and guns, . . . the gang’s rivals and claimed turf, the use of monikers and
identifying symbols, and the like, [are] permissible as expert background testimony.’ ”
(People v. Anthony (2019) 32 Cal.App.5th 1102, 1138 (Anthony).) A gang expert may
testify about the history and founding of a particular gang, even if the sources of the
information are hearsay. (People v. Vega-Robles (2017) 9 Cal.App.5th 382
(Vega-Robles).) Such admissible background testimony includes testimony about the
“primary activities” of a criminal street gang within the meaning of the STEP Act.
(People v. Meraz (2016) 6 Cal.App.5th 1162, 1175 (Meraz).) By contrast, an expert may
not relate case-specific testimonial hearsay, such as information contained in police
reports authored by other officers. (Sanchez, supra, 63 Cal.4th at pp. 694–695; People v.
Malik (2017) 16 Cal.App.5th 587, 598.)
       A gang expert who has personal knowledge of the facts and is subject to
cross-examination at trial may testify to facts contained in documents that would
otherwise be considered testimonial hearsay, such as field identification cards. (Meraz,
supra, 6 Cal.App.5th at p. 1176.) Testimony by an officer about personal observations
made by that officer, such as of an individual’s tattoos, location, companions, or clothing,


                                                 50
are not hearsay and thus do not run afoul of the confrontation clause. (People v. Iraheta
(2017) 14 Cal.App.5th 1228, 1248.)
       Where an appellant has failed to make a timely objection to the expert’s testimony,
resulting in a lack of clarity over whether the witness testified from personal
observations, an appellant may be unable to carry his or her burden on appeal of
affirmatively showing error. Where the record is unclear about the basis of a witness’s
testimony, and the appellant did not seek at trial to develop the record, reviewing courts
will not presume a violation of the confrontation clause. (Anthony, supra, 32 Cal.App.5th
at pp. 1139–1140.)
       Bearing in mind these legal principles, we turn to Austin’s specific contentions
about the gang evidence elicited at his trial.
                3. Evidence of Predicate Crimes
       Austin argues that the evidence of the predicate crimes violated both his rights
under the confrontation and due process clauses. We first consider his claims with
respect to the Sixth Amendment.
              a. Confrontation Clause Claims
       Austin maintains that the evidence related to the predicate crimes committed by
Ronny Flenaugh and Gregory Jefferson violated his rights under the confrontation
clause.38 Specifically, Austin argues that admission of Flenaugh’s and Jefferson’s

38
   Although the prosecution at trial introduced evidence of the prior convictions of two
other individuals as predicates supporting the gang enhancements, those individuals were
alleged to be members of the Ghost Town gang. As the prosecution’s theory at trial was
that Austin was a member of ENT rather than Ghost Town, the Attorney General does
not rely on that evidence in arguing sufficient evidence supported the jury’s finding on
the gang enhancements. In his reply brief, Austin accepts the Attorney General’s
limitation and advances arguments only as to the evidence relating to Flenaugh and
Jefferson. We similarly limit our analysis of convictions of individuals who were not
involved in the instant offense to Flenaugh and Jefferson. (See Prunty, supra, 62 Cal.4th
at p. 76 [“[A]s the STEP Act defines a criminal street gang as one whose members

                                                 51
records of prior convictions violated the Sixth Amendment, as interpreted in Kirby v.
United States (1899) 174 U.S. 47 (Kirby), and the gang expert relied on testimonial
hearsay when testifying that Flenaugh and Jefferson were members of ENT.
Alternatively, Austin argues that the evidence was insufficient to support the conclusion
that Flenaugh and Jefferson were ENT members. The Attorney General counters that
Kirby held that admission of the fact of a prior conviction does not violate the
confrontation clause, Bruce’s testimony was sufficiently specific based on his personal
investigation of Flenaugh and Jefferson, and sufficient evidence supported the jury’s
verdict on the gang enhancement.
       We apply de novo review to Austin’s claim that his rights under the confrontation
clause were violated. 39 (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 964
(Giron-Chamul).) When reviewing whether substantial evidence supports the gang
enhancement, “We review the entire record in search of reasonable and credible evidence
of solid value, viewing all the evidence in the light most favorable to the prosecution, and
drawing all reasonable inferences in favor of the jury’s findings. [Citations.] We cannot,
however, go beyond reasonable inferences into the realm of speculation, conjecture,
surmise, or guesswork.” (People v. Perez (2017) 18 Cal.App.5th 598, 607.) “Before a
verdict may be set aside for insufficiency of the evidence, a party must demonstrate
‘ “that upon no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].” [Citations.]’ The same standard of review applies to section 186.22



engage in a pattern of criminal gang activity, it is axiomatic that those who commit the
predicate acts must belong to the same gang that the defendant acts to benefit.”].)
39
   Although Austin did not object to the records of conviction for the prior offenses
committed by Flenaugh and Jefferson citing Kirby, Austin did generally object to the
admission of evidence related to the predicate crimes under the confrontation clause. The
Attorney General does not argue that Austin forfeited this issue, and we deem the general
confrontation clause objections made by Austin in the trial court sufficient to preserve
this issue for appellate review.
                                                52
gang enhancements.” (In re Alexander L. (2007) 149 Cal.App.4th 605, 610 (Alexander
L.), citation omitted.)
       We first consider Austin’s contention that admission of the records of conviction
for the prior offenses committed by Flenaugh and Jefferson violated the confrontation
clause under the principle announced in Kirby, supra, 174 U.S. 47.
                      i. Austin’s Kirby Claim
       Joe Kirby was convicted of possession of property stolen from the United States.
(Kirby, supra, 174 U.S. at pp. 48–49.) The prosecution’s theory at Kirby’s trial was that
three other individuals had stolen 5,486 postage stamps from a United States post office
in Highmore, South Dakota. (Id. at p. 49.) Two days later, Kirby unlawfully possessed
in Sioux Falls the stamps stolen from the Highmore post office. (Ibid.) Prior to Kirby’s
trial, three other individuals had been convicted of the theft of the stamps. At Kirby’s
trial, the prosecution’s only evidence that the stamps Kirby possessed had been stolen
from the United States was the conviction records for the three other people, admitted
into evidence over Kirby’s objection. (Id. at pp. 49–50, 53–54.)
       The United States Supreme Court held that the admission of the three prior
convictions to prove that the property Kirby possessed belonged to the United States
violated Kirby’s rights under the Sixth Amendment. (Kirby, supra, 174 U.S. at pp. 54–
55.) The court stated, “One of the fundamental guaranties of life and liberty is found in
the sixth amendment of the constitution of the United States, which provides that ‘in all
criminal prosecutions the accused shall . . . be confronted with the witnesses against him.’
Instead of confronting Kirby with witnesses to establish the vital fact that the property
alleged to have been received by him had been stolen from the United States, he was
confronted only with the record of another criminal prosecution, with which he had no
connection, and the evidence in which was not given in his presence. . . . But a fact
which can be primarily established only by witnesses cannot be proved against an
accused, charged with a different offense, for which he may be convicted without
                                                53
reference to the principal offender, except by witnesses who confront him at the trial,
upon whom he can look while being tried, whom he is entitled to cross-examine, and
whose testimony he may impeach in every mode authorized by the established rules
governing the trial or conduct of criminal cases.” (Id. at p. 55.)
       The Supreme Court clarified that, if the statute under which Kirby was convicted
had only required proof of prior conviction of the principal, “the record of the trial of the
former would be evidence in the prosecution against the receiver to show that the
principal felon had been convicted; for a fact of that nature could only be established by a
record.” (Kirby, supra, 174 U.S. at p. 54.) However, the prosecution could not prove an
“essential fact” of a subsequent crime solely through evidence of another person’s prior
conviction. (Ibid.) “The record of the conviction of the principals could not . . . be used
to establish, against the alleged receiver, charged with the commission of another and
substantive crime, the essential fact that the property alleged to have been feloniously
received by him was actually stolen from the United States.” (Ibid.)
       Relying on Kirby, subsequent courts have found violations of the confrontation
clause in the use of a prior conviction to show that an individual “in fact committed the
crime of which he was convicted” (United States v. Causevic (8th Cir. 2011) 636 F.3d
998, 1002), and in the admission of third-party convictions to prove the existence of a
gang. (State v. Jefferson (2017) 302 Ga. 435, 441–442 [807 S.E.2d 387, 392–393].)
       Although Kirby dates from 1899, the United States Supreme Court has continued
to rely on the decision in its modern confrontation clause cases. (See, e.g., Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305, 314; Davis v. Washington (2006) 547 U.S.
813, 825.) The Attorney General does not question Kirby’s continuing validity.
       In defending the trial court’s admission of the records of convictions for Flenaugh
and Jefferson, the Attorney General maintains that Kirby holds that a record of prior
conviction is properly admitted to show the fact of a prior conviction, and court records
are not testimonial hearsay. Although he does not state the point explicitly, the Attorney
                                                 54
General appears to contend that the conviction records of Flenaugh and Jefferson were
admitted only to prove the fact of their prior convictions.
       Applying Sanchez’s “two-step” process, we first consider whether admission of
the records constituted case-specific hearsay. (Sanchez, supra, 63 Cal.4th at p. 680.)
Austin concedes that the conviction records of Flenaugh and Jefferson were admissible
under Evidence Code section 452.5, subdivision (b)(1), which states “An official record
of conviction certified in accordance with subdivision (a) of Section 1530, or an
electronically digitized copy thereof, is admissible under Section 1280[40] to prove the
commission, attempted commission, or solicitation of a criminal offense, prior
conviction, service of a prison term, or other act, condition, or event recorded by the
record.” California courts have interpreted this provision as “creat[ing] a hearsay
exception allowing admission of qualifying court records to prove not only the fact of
conviction, but also that the offense reflected in the record occurred.” (Duran, supra, 97
Cal.App.4th at p. 1460.)
       Turning to the issue of whether certified conviction records are testimonial, a
number of California courts have concluded that they are not. Reviewing a set of
documents prepared pursuant to section 969b,41 one court stated, “Although they may
ultimately be used in criminal proceedings, as the documents were here, they are not

40
    Evidence Code section 1280 in turn provides, “Evidence of a writing made as a record
of an act, condition, or event is not made inadmissible by the hearsay rule when offered
in any civil or criminal proceeding to prove the act, condition, or event if all of the
following applies: [¶] (a) The writing was made by and within the scope of duty of a
public employee. [¶] (b) The writing was made at or near the time of the act, condition,
or event. [¶] (c) The sources of information and method and time of preparation were
such as to indicate its trustworthiness.”
41
    That statute provides in relevant part, “For the purpose of establishing prima facie
evidence of the fact that a person being tried for a crime or public offense under the laws
of this State has been convicted of an act punishable by imprisonment in a state prison,
county jail or city jail of this State, and has served a term therefor in any penal institution
. . . when such records or copies thereof have been certified by the official custodian of
such records, may be introduced as such evidence.” (§ 969b.)
                                                  55
prepared for the purpose of providing evidence in criminal trials or for determining
whether criminal charges should issue. Therefore, these records are beyond the scope of
Crawford, and the court properly admitted them and considered them for the statutory
purposes.” (People v. Taulton (2005) 129 Cal.App.4th 1218, 1225; see also Meraz,
supra, 6 Cal.App.5th at p. 1176, fn. 10.)
       We are not persuaded that all records of prior criminal convictions are immune
from confrontation clause challenge. Instead, whether admission of such records violates
the confrontation clause as interpreted in Kirby depends on the fact the prosecution seeks
to prove with the document. To the extent that the prosecution offers a record of
conviction solely to show the fact of the prior conviction, admission of that document is
consistent with Kirby and does not violate the confrontation clause. But Kirby also holds
that the use of a record of a prior conviction to prove any fact other than the fact of
conviction violates the Sixth Amendment. In the words of modern jurisprudence, records
of convictions used to prove facts other than the fact of conviction itself are testimonial.
In Kirby, for example, the record of prior conviction would have been properly admitted
to prove the fact of the prior conviction but not to prove that the stamps Kirby possessed
were the property of the United States. (Kirby, supra, 174 U.S. at p. 54.)
       In Austin’s case, the prosecution offered the records of Flenaugh’s and Jefferson’s
convictions as “predicates” in fulfillment of the Act’s requirement that the prosecution
prove that the relevant gang members have engaged in a “ ‘pattern of criminal gang
activity.’ ” (§ 186.22, subd. (e).) The Act defines that phrase as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of the following offenses, provided at least one
of these offenses occurred after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.” (Ibid.) If the prosecution


                                                 56
offered a record of a prior conviction solely to prove that individual had suffered a
“conviction” of that offense, then such a record would not be testimonial under Kirby.
       However, the STEP Act also requires that the prosecution prove the date of
commission of the predicate crime. “The statute contains two timing requirements for the
offenses used to establish a ‘pattern of gang activity’: the last crime must have occurred
within three years of a prior crime, and at least one of the offenses must have occurred
after the effective date of the statute.” (People v. Godinez (1993) 17 Cal.App.4th 1363,
1368 (Godinez).) In Austin’s trial, the only competent evidence proving the date of
commission of Flenaugh’s predicate offense was a copy of the complaint from his case.
       Use of this complaint from Flenaugh’s prior conviction to prove the date on which
Flenaugh committed the offense plainly violates Kirby’s proscription of the use of the
records of prior convictions to prove any fact other than the fact of the prior conviction.
The date of the commission of a crime is a fact that “can be primarily established only by
witnesses.” (See Kirby, supra, 174 U.S. at p. 55.) The prosecution elicited no other
testimony to prove the offense date of Flenaugh’s crime. Although the prosecutor orally
asked Bruce whether the crime had occurred on June 3, 2012, and Bruce answered
affirmatively, Bruce also testified that he had had no involvement in Flenaugh’s case.
Therefore Bruce must have relied on testimonial hearsay (in the form of documents
created by the police or prosecution) to answer the prosecutor’s question. We conclude
that, pursuant to Kirby, admission of Flenaugh’s complaint from his prior conviction to
prove the date on which Flenaugh committed the crime violated Austin’s rights under the
confrontation clause. We consider below whether Austin suffered prejudice from this
violation.
       As to the conviction for Jefferson, we conclude there was no violation of Austin’s
confrontation rights. Bruce testified that he personally participated in Jefferson’s arrest
that led to his conviction, the conviction records of which were introduced into evidence.
Those conviction records show a conviction for carrying a loaded firearm, in violation of
                                                 57
section 25850, subdivision (c)(2). (See § 186.22, subd. (e)(33) [listing a violation of
section 25850 as a qualifying predicate offense].) A reasonable juror could infer from
Bruce’s testimony that Jefferson committed the offense immediately prior to his arrest
and Bruce was, therefore, a percipient witness to the crime. The conviction records
confirm that the date of offense of the crime was January 18, 2012—the same date Bruce
had testified that he participated in Jefferson’s arrest. The fact of conviction for this
offense, as reflected in the relevant exhibit received into evidence, is not testimonial
under Kirby.42 Therefore, admission of the evidence of the predicate crime committed by
Jefferson did not violate the confrontation clause.
              ii. Expert’s Testimony of Gang Membership
       Austin argues that Bruce’s testimony that Flenaugh and Jefferson were gang
members violated the confrontation clause. Austin also contends that Bruce’s testimony
was vague and did not constitute sufficient evidence in support of the gang enhancement.
       We have already concluded that admission of the evidence related to Flenaugh’s
prior crime violated the confrontation clause. We therefore will not further consider
Austin’s claims with respect to Bruce’s testimony about Flenaugh.
       Turning to Bruce’s testimony about Jefferson, we find no confrontation clause
violation. Bruce’s testimony—although vague—was sufficiently specific as to its basis
to provide sufficient evidence supporting the jury’s finding on the gang enhancement.
       Bruce testified that it was his opinion that Jefferson is a member of ENT based on
“prior contacts, prior long-term investigations where Mr. Jefferson was one of the targets,
social media postings, and observations on the street.” Bruce did not testify that
Jefferson was in any of the videos or social media accounts related to ENT that were
introduced into evidence. Austin did not mention Jefferson in his testimony. No other
witness mentioned Jefferson.

42
 Austin does not otherwise object to the content of the exhibit admitted into evidence,
much of which goes beyond the fact of Jefferson’s prior conviction.
                                                 58
       On the other hand, Bruce was personally familiar with Jefferson. Bruce testified
that ENT previously had a subset called Money Team, and both Austin and Jefferson
were members of Money Team when it was in existence. Bruce also testified that
Jefferson was a member of ENT when he committed the predicate crime in January 2012.
Jefferson was one of the targets of Bruce’s ENT wiretap in 2013.
       Reviewing courts that have found a gang expert’s factual assertions insufficient
have faulted the expert’s lack of personal knowledge of the individual or group about
whom the assertion is made or a lack of specificity about the basis of the expert’s
knowledge. (See, e.g., In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1003; Alexander
L., supra, 149 Cal.App.4th at p. 612.) Although Bruce’s testimony was not particularly
specific, he did state that he had personally conducted the investigations and observations
he referenced. A reasonable juror could also infer from the rest of Bruce’s testimony that
Bruce was knowledgeable about ENT, a gang he had known about and investigated since
its inception. “The credibility and weight of the expert testimony was for the jury to
determine, and it is not up to us to reevaluate it.” (People v. Flores (2006) 144
Cal.App.4th 625, 633.) Drawing all reasonable inferences in favor of the jury’s finding,
we determine that Bruce’s testimony constituted substantial evidence that Jefferson was a
member of ENT.
               b. Due Process Claims
       Austin contends that Bruce’s testimony about the predicate offenses violated his
right to due process because Bruce referenced facts learned in his 2013 investigation of
ENT, conducted after Austin’s commission of the crimes in this case. The Attorney
General counters that Bruce’s testimony about crimes committed by ENT members prior
to November 29, 2012, was sufficient to support the jury’s finding on the gang
enhancement.
       “Due process entitles a defendant to notice,” and the “[u]se of acts occurring after
a defendant’s commission of charged offenses to establish the existence of a ‘pattern of
                                                59
criminal gang activity’ within the meaning of section 186.22, subdivision (c) deprives the
defendant of notice, in advance of his conduct, that his acts will fall within the
proscription of section 186.22.” (Godinez, supra, 17 Cal.App.4th at p. 1369; see also
Duran, supra, 97 Cal.App.4th at p. 1458 [“Crimes occurring after the charged offense
cannot serve as predicate offenses to prove a pattern of criminal gang activity.”].)
Although they may not occur later, predicate offenses may be committed
contemporaneously with the charged offense. (Loeun, supra, 17 Cal.4th at pp. 10–11.)
       It is true that Bruce testified generally about the ENT wiretap investigation he
conducted in 2013. However, Bruce’s testimony also contained numerous references to
his investigation of ENT crimes and interactions with ENT members in 2011 and 2012.
For example, Bruce conducted investigations into crimes committed by or against ENT
members in 2011. Bruce testified that ENT claimed a particular territory of Oakland in
2011 and 2012. Between 2010 and 2013, Bruce investigated “dozens of crimes related to
ENT.” Bruce testified that Jefferson committed the predicate crime for which the
prosecution introduced the record of conviction on January 18, 2012. We reject Austin’s
claim that his right to due process was violated by Bruce’s references to investigations
that occurred in 2013 after Austin committed the crimes at issue here and conclude that
the record provides substantial evidence of ENT members’ commission of predicate
offenses prior to November 29, 2012.
                4. Evidence of Primary Activities
       Austin similarly argues that the evidence heard by the jury relating to the primary
activities of ENT violated his due process rights because Bruce’s testimony was not
limited to the activities of ENT before Austin’s commission of the robbery on November
29, 2012. The Attorney General does not address Austin’s argument with respect to
primary activities.




                                                 60
                a. Factual Background
         Bruce had the following interchange with the prosecutor on the subject of ENT’s
primary activities.
         “Q. What in your opinion is ENT’s primary activities?
         “A. The primary being at the moment of ENT [sic] is committing burglaries and
home invasions as well as robberies and shootings or murders.
         “Q. And when you say, ‘burglaries,’ are they specific types?
         “A. Typically, ENT was known for doing burglaries of Asian and East Indian
homes.
         “Q. Those would be residential burglaries. Correct?
         “A. Correct.”
         Defense counsel did not object to this testimony. Bruce also testified that ENT is
“known for” committing residential burglaries. The jury saw the ENT video in which
one of the singers references duct tape, which Bruce testified was a reference to
residential burglaries.
         With respect to the primary activities requirement, the jury was instructed that “A
criminal street gang is any ongoing organization, association, or group of three or more
persons, whether formal or informal: . . . [¶] That has, as one or more of its primary
activities, the commission of Residential Burglaries, Robberies, Auto Burglaries,
Assaults with Firearms and Murders . . . [¶] In order to qualify as a primary activity, the
crime must be one of the group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the group.” 43
                b. Analysis
         Austin argues that, just as the predicate crimes fulfilling the pattern of criminal
activity prong of the gang enhancement may not have been committed after the charged


43
     Austin does not argue any error in this instruction.
                                                   61
offense, so too the evidence of the primary crimes must be drawn from activities
contemporaneous with or before the charged crime. Although Austin cites no case for
this proposition, we agree with Austin that there is nothing in the text of the STEP Act
provision relating to primary activities that suggests that acts the gang committed after
the charged offense can themselves satisfy the primary crimes element of the
enhancement. A similar rule applies to the predicate offenses. (See Duran, supra, 97
Cal.App.4th at p. 1458.)
       Although we accept Austin’s legal point, we disagree with his factual conclusion.
Expert testimony can provide substantial evidence of a gang’s primary activities, as can
evidence that “the group’s members consistently and repeatedly have committed criminal
activity listed in the gang statute.” (Sengpadychith, supra, 26 Cal.4th at p. 324.)
Although Bruce’s testimony was not specific about the timeframe of his conclusion that
ENT’s primary activities were burglaries and shootings, among other crimes, defense
counsel did not object to this testimony or seek clarification of Bruce’s testimony. An
appellant must affirmatively demonstrate error. (See People v. Giordano (2007) 42
Cal.4th 644, 666.)
       In addition, the jury heard other evidence beyond Bruce’s testimony from which it
could infer ENT’s primary activities. For example, Austin testified that, in 2011,
members of ENT committed residential burglaries and, in 2012, members of ENT
illegally possessed firearms. Austin admitted that he had previously committed
residential burglaries (although in 2009 and therefore prior to the formation of ENT).
Austin acknowledged that he made $20,000 from criminal activity in the three months
after he was released from prison in 2012. Based on Austin’s admissions of having
committed prior burglaries, a reasonable juror could infer that Austin got that money
from burglaries, rather than by pimping, as Austin had testified. The jury heard about
Austin’s phone conversation in which Austin told the other person he was lucky that
“they” were not the ones to shoot the other person because, if they had, he would be dead.
                                                62
The jury heard about Jefferson’s conviction in 2012 for carrying a firearm in a public
place. The jury was also entitled to consider the charged offense, which included a
residential burglary. Therefore, Austin cannot show prejudice from defense counsel’s
failure to object to the basis of Bruce’s conclusions about ENT’s primary activities.
          The record contains substantial evidence that ENT’s “primary activities” on
November 29, 2012, were the commission of residential burglaries and assaults with a
firearm, thus fulfilling the requirements of the STEP Act. (See § 186.22, subd. (e)(1) &
(11).) Austin has not persuaded us that his due process rights were violated by the
evidence the prosecution elicited to support the primary activities element of the gang
enhancement.
                  5. Evidence of ENT as a Criminal Street Gang
          Austin argues that Bruce’s testimony that ENT was a criminal street gang violated
his Sixth Amendment rights because Bruce’s opinion was based on testimonial hearsay in
the form of booking statements and on investigations performed by others. The Attorney
General counters that Austin has no standing for his claim about booking statements, and
Austin has not shown that Bruce relied on testimonial hearsay in forming his opinion that
ENT is a gang.
          With respect to booking statements, Bruce testified that the two jails in Alameda
County house members of the same gang together. Bruce had participated in the booking
process in these jails and had heard others ask questions of inmates about gang
membership. Bruce knew that ENT is one of the groups whose members would be
housed together in these jails. In response to the prosecutor’s question, “Does that it any
way form your opinion about whether you believe ENT is [a] gang?,” Bruce responded,
“It does.” Austin contends that this evidence violated his rights under the confrontation
clause.
          We agree with the Attorney General that Austin has no standing to raise potential
violations of others’ privilege against self-incrimination. (People v. Leon (2016) 243
                                                  63
Cal.App.4th 1003, 1016.) Although Austin may retain a due process right to assert a
violation of his right to a fair trial through the admission of improperly obtained
statements (ibid.), we find no such violation here.
       The evidence to which Austin objects amounts to an assertion that the Alameda
County jails house ENT members together. Given the overwhelming evidence that ENT
was a criminal street gang at the time Austin committed the crimes in this case—
including Austin’s own admission that ENT is a gang—any due process or confrontation
clause error implicated by this limited testimony is harmless beyond a reasonable doubt.
(See Chapman, supra, 386 U.S. at p. 24.)
       Austin also contends that Bruce’s opinion that ENT was a gang in November 2012
impermissibly relied on testimonial hearsay based on surveillance of ENT gang members,
information derived from the 2013 wiretap investigation, and field identification cards
that Bruce created for his contacts with Austin. Austin, however, does not demonstrate
that in rendering his opinion Bruce relied on information secured by others.
       A gang expert may testify about case-specific facts that he has personal knowledge
of without violating the confrontation clause. (Vega-Robles, supra, 9 Cal.App.5th at
p. 413.) Bruce personally conducted much of the investigation into ENT. Austin does
not point to any particular statement made by Bruce that relied on testimonial hearsay.
We will not infer an error under the confrontation clause where the basis and extent of
Bruce’s knowledge are unclear because defense counsel did not seek clarification through
cross-examination. (Anthony, supra, 32 Cal.App.5th at pp. 1139–1140.) We conclude
that Austin has not demonstrated any violation of his confrontation clause or due process
rights arising from Bruce’s testimony that ENT is a criminal street gang. In any event,
Austin cannot show any prejudice from defense counsel’s failure to object to the basis of
Bruce’s conclusion. Austin’s own testimony contained all of the elements from which
the jury could infer that ENT met the definition of a criminal street gang.


                                                 64
                6. Prejudice
       Austin contends that, given the “large volume” of evidence admitted in violation
of the confrontation and due process clauses, the “State cannot show the gang
enhancement true findings were not attributable to the errors.” As described above, we
have not found a large volume of evidence erroneously admitted. Instead, we have
concluded only that admission of Flenaugh’s record of conviction to prove the date on
which Flenaugh committed the prior offense violated the confrontation clause. We now
consider whether Austin was prejudiced by that error.
       We review violations of the confrontation clause for harmless error using the
Chapman standard. (People v. Amezcua and Flores (2019) 6 Cal.5th 886, 912.) “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.” (People v. Pettie (2017) 16
Cal.App.5th 23, 64.) “ ‘ “ ‘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.’ ” ’ ” (People v. Pearson (2013) 56
Cal.4th 393, 463.)
       In considering whether the People proved beyond a reasonable doubt ENT’s
pattern of criminal activity, the jury was not limited to the predicate crimes introduced
through Bruce, the prosecution’s gang expert. (See People v. Lara (2017) 9 Cal.App.5th
296, 332.) The jury also could have considered the commission of the charged offense
by Drummer if sufficient evidence supports a conclusion that Drummer committed a
predicate crime. We conclude there was sufficient evidence.
       A reasonable juror could conclude beyond a reasonable doubt that Drummer was a
member of ENT based on his tattoo “ENT.” In addition, Drummer’s social media
accounts contained references to ENT and at least one photo of ENT member Ronny
Flenaugh. The jury heard from Fritz that Drummer was present for the planning of the
                                                  65
robbery charged in the current offense; Drummer asked whether the house had gold in it;
Drummer told Fritz the following day that “shit went bad,” referring to the death of
Raveesh; and Drummer and Austin “got rid of everything” connected to the robbery. The
jury could therefore conclude beyond a reasonable doubt that Drummer had committed a
robbery simultaneously with Austin’s commission of the charged offense. Drummer’s
commission of the offense of robbery could serve as one of the two predicate offenses
required by the STEP Act.44 (See Loeun, supra, 17 Cal.4th at p. 10; § 186.22, subd.
(e)(2).) With respect to the second predicate, we have already determined that
Jefferson’s conviction for carrying a loaded firearm was properly admitted as a predicate
offense, and Austin has not argued that that conviction did not occur. Austin himself
admitted that, in 2012, members of ENT illegally possessed firearms.
       In addition to Drummer’s commission of robbery, Austin’s own commission of
robbery could serve as a predicate offense.45 (People v. Ochoa (2017) 7 Cal.App.5th
575, 584–586; Loeun, supra, 17 Cal.4th at p. 10.) The jury heard substantial evidence
that Austin was a member of ENT. Austin had “ENT” and “Stubby” tattooed on his
body. Austin founded ENT. A drawing created by a current ENT member stated “Free
my brudders” and included “Sunny D” (Austin’s nickname) in the list of names. The
gang expert frequently saw Austin with other members of ENT, and the prosecution
introduced into evidence photos and videos of Austin with other ENT members.

44
   Austin’s jury was instructed in relevant part that “A pattern of criminal gang activity,
as used here, means: [¶] 1. The commission of, or conviction of, any combination of
two or more of the following crimes, or two or more occurrences of one or more of the
following crimes: Robbery, Carrying a Concealed Firearm, CArrying [sic] a Loaded
Firearm, Carjacking, Auto Burglary.” It is not clear from the record why the jury was not
also instructed that burglary of a home could also serve as a predicate offense.
45
   Although Austin argues that his own conduct cannot serve as a predicate offense
because the jury instruction on predicate offenses did not require the jury to find that the
predicate crimes were committed by gang members, given the overwhelming evidence
that Austin was a member of ENT, any instructional error on this point was harmless
beyond a reasonable doubt.
                                                66
Although Austin denied that he was a member of ENT when ENT was a criminal street
gang, the jury was entitled to, and clearly did, reject Austin’s testimony on this point
when it found the gang allegations true.
       Further supporting the jury’s conclusion that ENT was a criminal street gang,
Austin admitted that, when he was in ENT in 2012, there were more than three people in
ENT, ENT had a common name, and some of the people in the group committed crimes.
Austin likened the rivalry between ENT and the Case gang to the rivalry between the
Norteños and Sureños.
       In sum, the record contains significant evidence that ENT was a criminal street
gang in November 2012, including substantial evidence related to predicate crimes. The
confrontation clause error in admitting the Flenaugh conviction records to prove the date
of Flenaugh’s offense was harmless beyond a reasonable doubt.
       We therefore reject all of Austin’s contentions that the jury’s findings on the gang
enhancements must be set aside either due to violations of the confrontation or due
process clauses or because of insufficient evidence.
       C. Garcia’s Claims Regarding Senate Bill No. 1437
       Garcia claims that recent modifications to the felony murder and the natural and
probable consequences doctrines effected by Sen. Bill No. 1437 apply to his case. Garcia
contends that the jury instructions regarding felony murder were therefore deficient, and
that the evidence was insufficient to establish his guilt for murder under the modified
law.
                1. Procedural Background
       After appellate briefing in this case was complete, the Governor signed Sen. Bill
No. 1437, which went into effect on January 1, 2019. Sen. Bill No. 1437 amended
section 189 to provide that a defendant who was not the actual killer or did not have an
intent to kill is not liable for felony murder unless he or she “was a major participant in
the underlying felony and acted with reckless indifference to human life, as described in
                                                 67
subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3); Stats. 2018, ch. 1015, § 3, p.
6675.)
         We granted Garcia permission to file supplemental briefing on Sen. Bill No. 1437.
Garcia argued for relief from his murder conviction under Sen. Bill No. 1437 on the
grounds of instructional error and insufficient evidence, because the prosecution’s theory
of his guilt relied on the felony murder rule.46 The Attorney General countered that
Garcia can only seek relief under Sen. Bill No. 1437 by first petitioning the trial court
under the process set out in section 1170.95. That section allows those “convicted of
felony murder or murder under a natural and probable consequences theory . . . [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95, subd.
(a).) Alternatively, the Attorney General argued that substantial evidence supported a
finding that Garcia was the actual killer, aided and abetted the actual killer, or was a
major participant in the robbery and acted with reckless indifference to human life.
         On our own motion and pursuant to People v. Martinez (2019) 31 Cal.App.5th
719, 729 (Martinez), we stayed this appeal and remanded Garcia’s case to the trial court
for the limited purpose of conducting proceedings necessary to address any petition filed
by Garcia under section 1170.95. We directed Garcia to notify this court whether he
either had filed a petition in the trial court or had elected not to file such a petition and to
proceed with his appeal. Garcia subsequently filed a notice of his election to proceed
with his appeal, and we therefore vacated our stay and reinstated Garcia’s appeal.




46
  The trial court instructed the jury on felony murder with CALCRIM No. 540A (which
addresses situations where the defendant allegedly committed the fatal act), and
CALCRIM No. 540C (which addresses situations where a person other than the
defendant committed the act that resulted in the death).
                                                   68
                 2. Analysis
       Garcia argues that Martinez was wrongly decided and that we should consider his
instructional and insufficiency claims in this appeal. We disagree.
       Although Sen. Bill No. 1437 might mitigate Garcia’s criminal liability, it does not
support reversal of his murder conviction on direct appeal where Garcia has elected to
forego filing a section 1170.95 petition. As the Martinez court explained, when the
Legislature creates a procedure, such as that contained in section 1170.95, permitting
criminal defendants who have already been convicted to apply to reduce their criminal
liability, such convicted persons must follow the statutory procedure. If they choose not
to do so, on appeal we will not grant relief of a conviction otherwise valid under the prior
law. (Martinez, supra, 31 Cal.App.5th at pp. 724–729; accord Anthony, supra, 32
Cal.App.5th at pp. 1147–1158; see also People v. Munoz (2019) 39 Cal.App.5th 738,
749–753; People v. Lopez (2019) 38 Cal.App.5th 1087, 1113–1115; In re R.G. (2019) 35
Cal.App.5th 141, 151.) Garcia must therefore file a section 1170.95 petition in the
sentencing court to obtain any ameliorative benefits under Sen. Bill No. 1437, and he has
not done so. We therefore do not address the merits of any of Garcia’s claims under Sen.
Bill No. 1437.
       D. Garcia’s Challenges to the Accomplice Instruction and Evidence
       Garcia raises two claims related to Austin’s testimony based on his contention that
Austin was his accomplice. First, Garcia argues that the trial court neglected its sua
sponte duty to instruct the jury that Austin was an accomplice as a matter of law whose
incriminating testimony required corroboration and should be viewed with caution.
Second, Garcia contends that there was insufficient corroboration of Austin’s testimony.
Because of overlap in the analyses of these claims, we address them together.
       The trial court instructed the jury that Fritz (Austin’s sister) was an accomplice as
a matter of law using CALCRIM No. 335. The court did not instruct that Austin, too,
was an accomplice as a matter of law, or that accomplice testimony must be corroborated
                                                69
when there is a dispute whether a witness is an accomplice (CALCRIM No. 334). None
of the parties objected to the accomplice instruction or requested modifications to it.
       Section 1111 provides: “A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof. [¶] An
accomplice is hereby defined as one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.”
       The parties dispute whether the trial court had a sua sponte duty to instruct that
Austin was an accomplice. Garcia argues that People v. Avila (2006) 38 Cal.4th 491
(Avila) and People v. Terry (1970) 2 Cal.3d 362, overruled on another point in People v.
Carpenter (1997) 15 Cal.4th 312, 381–382, required the trial court to include Austin in
the accomplice testimony instruction (CALCRIM No. 335). In Avila, the Supreme Court
explained that, “generally, instructions on accomplice testimony must be given on the
court’s own motion only when the accomplice witness is called by the prosecution or
when a defendant, in testifying, implicates his codefendant while confessing his own
guilt.” (Avila, at p. 562.)
       The Attorney General responds that, under People v. Box (2003) 23 Cal.4th 1153
and People v. Hill (1967) 66 Cal.2d 536, the trial court was not obligated to instruct the
jury concerning Austin’s testimony absent a request from Garcia. The Attorney General
reasons that, since Austin did not shift blame to Garcia and Garcia denied his own guilt, it
is inappropriate to require an accomplice instruction because it could be construed as
imputing Austin’s guilt to Garcia.
       We need not decide whether the trial court erred by failing to instruct the jury
regarding Austin’s testimony because Garcia cannot demonstrate prejudice for any such
error. Even if there was a sua sponte obligation to instruct on accomplice testimony, the
                                                70
failure to so instruct is harmless if there is sufficient corroborating evidence connecting
Garcia to the commission of the crimes. (People v. Gonzales and Soliz (2011) 52 Cal.4th
254, 303 (Gonzales and Soliz).)
       “To corroborate the testimony of an accomplice, the prosecution must present
‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the
crime charged’ without aid or assistance from the accomplice’s testimony.” (Avila,
supra, 38 Cal.4th at pp. 562–563.) “Corroborating evidence is sufficient if it tends to
implicate the defendant and thus relates to some act or fact that is an element of the
crime.” (Id. at p. 563.) “ ‘Corroborating evidence may be slight, may be entirely
circumstantial, and need not be sufficient to establish every element of the charged
offense.’ ” (Gonzales and Soliz, supra, 52 Cal.4th at p. 303.) In determining whether
there is sufficient evidence to corroborate the accomplice’s testimony, we must view the
evidence in a light most favorable to the judgment. (People v. Garrison (1989) 47 Cal.3d
746, 774.)
       Here, there was ample corroborating evidence connecting Garcia to the crime,
independent of Austin’s testimony. Garcia’s DNA was found on five latex gloves
recovered from Harinder and Raveesh’s kitchen. Garcia’s cell phone was in the vicinity
of Harinder and Raveesh’s residence at the time of the robbery. Fritz testified about
Austin’s statement that his “partner” from Ghost Town was joining in the crime. Austin
did not testify about any of these subjects, and thus this evidence is independent of his
testimony.
       Moreover, we are not persuaded by Garcia’s arguments that the DNA and cell
phone evidence were rendered insubstantial by Garcia’s purportedly “reasonable and
plausible explanation for this circumstantial evidence placing him at the crime scene.” In
support of this point, Garcia relies principally upon People v. Robinson (1964) 61 Cal.2d
373. In Robinson, the Supreme Court rejected the contention that Robinson’s fingerprints
in his cousin’s car constituted sufficient corroboration to render the failure to give an
                                                 71
accomplice instruction harmless. The Supreme Court stated, “[t]o hold that the presence
of those prints connects him with the commission of the crime is tantamount to saying
that the fingerprints of any relative of a person known to have committed a crime, found
on the automobile of such person, tends to connect the relative with the crime, even
though it is known that the relative has had the opportunity to be in and out of that car on
various occasions other than during the commission of the crime.” (Id. at p. 399.) As
this passage makes clear, Robinson does not stand for the proposition advanced by Garcia
that any plausible exculpatory explanation for incriminating evidence vitiates its
corroborative effect. In contrast to fingerprints found in a relative’s car with whom one
socializes frequently (id. at p. 398), Garcia’s DNA and phone were at or near a house
located in a city that, according to his own testimony, Garcia had never visited. Under
those circumstances, Robinson does not counsel that we should ignore this independent
evidence as corroborative of Austin’s testimony.47
       Viewing the evidence in the light most favorable to the judgment, the record
supports a reasonable inference that Garcia was at Harinder and Raveesh’s residence and
participated in the commission of the crime. There is sufficient corroboration of Garcia’s
guilt independent of Austin’s testimony. (See People v. Williams (2013) 56 Cal.4th 630,
679.) Accordingly, we conclude that any error in failing to instruct with CALCRIM No.
335 regarding Austin’s testimony was harmless.48

47
   We are also skeptical that the jury found Garcia’s exculpatory explanation “reasonable
and plausible.” Garcia testified that his cell phone was at Harinder and Raveesh’s house
because his cousin Rodriguez had committed the robbery and had borrowed Garcia’s
phone because Rodriguez’s phone was not working. However, none of Rodriguez’s
DNA was found at the scene of the robbery, and the records of Garcia’s cell phone
showed two calls to Rodriguez’s phone on the night of the robbery.
48
   We also reject Garcia’s claim that the trial court’s failure to include Austin in
CALCRIM No. 335 amounted to a violation of his federal due process rights. Under
federal law “the use of accomplice testimony is not catalogued with constitutional
restrictions.” (United States v. Augenblick (1969) 393 U.S. 348, 352; see also Cummings

                                                72
                     II. CLAIMS OF INSTRUCTIONAL ERROR
       In this section we address three issues raised by Garcia: the trial court erred by
failing to instruct the jury on the lesser included offenses of second degree implied malice
murder and involuntary manslaughter; the trial court erred by instructing the jury with
CALCRIM No. 361 on the failure to explain or deny adverse evidence; and CALCRIM
No. 372 improperly allowed an irrational inference regarding Garcia’s flight from the
crime scene.
       A. Garcia’s Challenge to the Lack of Instruction on Second Degree Implied
       Malice Murder and Involuntary Manslaughter
       Garcia contends that the trial court erred by failing to instruct the jury sua sponte
on second degree implied malice murder and involuntary manslaughter as lesser included
offenses of the murder charged in count 1.
                1. Background
       Although the information generally alleged in count 1 that, “[o]n or about
November 30, 2012 . . . the crime of MURDER, in violation of PENAL CODE
SECTION 187, a Felony, was committed by JAVIER RUBEN RODRIGUEZ GARCIA
AND DEANGELO JOSEPH AUSTIN who did unlawfully and with malice aforethought,
kill Raveesh [K.], a human being,” the jury was instructed only as to felony murder for
this count.49 For count 1, the trial court instructed the jury on two theories of robbery-




v. Sirmons (10th Cir. 2007) 506 F.3d 1211, 1237.) Further, because any error in failing to
instruct is harmless under state law, there is no federal due process violation here. (See
People v. Frye (1998) 18 Cal.4th 894, 966, disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 420.)
49
   In response to a jury question about the murder charge, the trial court instructed the
jury “[b]oth defendants are charged with violating Penal Code [section] 187, under a
theory defined by Penal Code [section] 189, which is covered in instructions 540A &
540C. I have given you new verdict forms for Count 1 to make this more clear.”

                                                 73
felony murder under section 189,50 using CALCRIM No. 540A (for situations where the
defendant allegedly committed the fatal act) and CALCRIM No. 540C (for situations
where a person other than the defendant committed the act that resulted in the death).51
The parties stipulated to the jury instructions.
       The jury found Garcia guilty of murder in violation of “Penal Code Section
187/189” but could not reach a verdict on the special circumstance allegation against him.
                2. Legal Principles
       “A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily
included in the charged offense if there is substantial evidence the defendant is guilty
only of the lesser.’ [Citation.] Substantial evidence in this context is evidence from
which a reasonable jury could conclude that the defendant committed the lesser, but not
the greater, offense.” (People v. Shockley (2013) 58 Cal.4th 400, 403, italics added.) In
reviewing the sufficiency of the evidence for this purpose, we resolve any doubts in
defendant’s favor. (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
       Regarding second degree murder, “a finding of implied malice requires only an
‘intent to do an act dangerous to human life with conscious disregard of its danger.’ ”
(People v. Landry (2016) 2 Cal.5th 52, 96.) For involuntary manslaughter, a person
commits the crime “either by committing ‘an unlawful act, not amounting to a felony’ or
by committing ‘a lawful act which might produce death, in an unlawful manner, or
without due caution and circumspection.’ (§ 192, subd. (b).)” (People v. Cook (2006) 39
Cal.4th 566, 596.) Generally, involuntary manslaughter is a lesser included offense of
murder. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.)


50
   The version of section 189 in effect at the time of the crime stated in pertinent part,
“All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . .
robbery, . . . is murder of the first degree. All other kinds of murders are of the second
degree.” (Former § 189.)
51
   The trial court also instructed the jury on aiding and abetting liability (CALCRIM Nos.
400–402), and coconspirator liability (CALCRIM Nos. 416–418).
                                                   74
       We review independently whether the trial court improperly failed to instruct on a
lesser included offense. (People v. Banks (2014) 59 Cal.4th 1113, 1160 (Banks),
overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
                3. Analysis
       Garcia argues that there is sufficient evidence for second degree implied malice
murder, because reasonable jurors could have concluded that Raveesh’s death was
unintentional and resulted from reckless disregard for life based on the manner he was
taped and restrained, particularly given that Harinder warned the perpetrators of his heart
condition and potential for death. In addition, Garcia claims that there was sufficient
evidence of involuntary manslaughter, because reasonable jurors could have determined
that Raveesh’s death was accidental and “occurred more proximately during the false
imprisonment”—a noninherently dangerous felony—rather than the robbery. Garcia
contends that the failure to instruct on these lesser offenses violated his constitutional
rights to due process and a fair trial, and was prejudicial under the standards of Chapman,
supra, 386 U.S. at pp. 23–24, and People v. Watson (1956) 46 Cal.2d 818, 837–838.
       The Attorney General concedes that, under the accusatory pleading test, the trial
court here would have been required to instruct the jury sua sponte on second degree
implied malice murder as a lesser included offense had such a finding been supported by
substantial evidence.52 The Attorney General asserts, however, that the evidence does



52
  “ ‘For purposes of determining a trial court’s instructional duties, . . . “a lesser offense
is necessarily included in a greater offense if either the statutory elements of the greater
offense, or the facts actually alleged in the accusatory pleading, include all the elements
of the lesser offense, such that the greater cannot be committed without also committing
the lesser.” ’ ” [Citation.] “When applying the accusatory pleading test, ‘[t]he trial court
need only examine the accusatory pleading.’ [Citation.] ‘[S]o long as the prosecution
has chosen to allege a way of committing the greater offense that necessarily subsumes a
lesser offense, and so long as there is substantial evidence that the defendant committed
the lesser offense without also committing the greater, the trial court must instruct on the
lesser included offense.’ ” (Banks, supra, 59 Cal.4th at p. 1160, italics omitted.)
                                                 75
not show that Garcia committed the lesser offenses instead of the greater offenses. We
agree with the Attorney General.
       Turning first to Garcia’s claim that the jury should have been instructed on second
degree murder, we find no evidence that Garcia committed only the lesser offense of
second degree murder rather than first degree felony murder. (People v. Smith (2013) 57
Cal.4th 232, 245.) Although Garcia was charged with malice murder, he was tried solely
under a theory of first degree felony murder.
       “When the evidence points indisputably to a homicide committed in the course of
a felony listed in section 189 of the Penal Code, the court is justified in advising the jury
that the defendant is either innocent or guilty of first degree murder.” (People v. Turner
(1984) 37 Cal.3d 302, 327, overruled on other grounds in People v. Anderson (1987) 43
Cal.3d 1104, 1115; People v. Rupp (1953) 41 Cal.2d 371, 382.) To find Garcia guilty
only of second degree murder, the jury would have had to reject the prosecution’s
evidence and argument that Raveesh died in the course of a robbery, a crime listed in
section 189, committed by Garcia. However, there was no evidence from which the jury
could find that Garcia committed an act dangerous to human life in Raveesh and
Harinder’s house but did not also commit a robbery.
       Turning next to Garcia’s contention that the jury should have been instructed on
involuntary manslaughter, Garcia rests this argument on the theory that the jury may have
found that Raveesh’s death occurred accidentally during the course of the non-violent
felony of false imprisonment but not during the commission of felony robbery. We find
no evidence in the record from which the jury could have concluded that Raveesh died
during Garcia’s commission of false imprisonment but not of robbery. The jury was
instructed that robbery “continues until a defendant has reached a place of temporary
safety.” There is no evidence from which the jury could find that Garcia committed the
crime of false imprisonment but not robbery, or that Raveesh died in the course of the


                                                 76
false imprisonment but not the robbery, as there was no dispute that the false
imprisonment took place entirely within the robbery.
       That the jury did not reach a verdict on the robbery-murder special circumstance
for Garcia does not suggest (as Garcia contends) that some jurors concluded that
Raveesh’s death “occurred in connection with the false imprisonment as opposed to the
robbery.” The jury was instructed regarding count 1 only on the theory of robbery-felony
murder. Furthermore, the special circumstance instruction required the jury to make an
additional finding beyond that for felony murder—that is, either an intent to kill or major
participation in the crime with reckless indifference to human life. (CALCRIM No. 703.)
The prosecutor argued that Garcia was liable for the special circumstance only on the
latter ground of major participation with reckless indifference.
       Garcia also argues that that the jury should have been instructed on involuntary
manslaughter as a lesser included offense because the jury could have concluded that
Raveesh’s death was accidental. However, this point is legally irrelevant to the question
of lesser included offenses because neither involuntary manslaughter nor felony murder
requires an intent to kill. “ ‘The felony-murder doctrine, whose ostensible purpose is to
deter those engaged in felonies from killing negligently or accidentally, operates to posit
the existence of that crucial mental state–and thereby to render irrelevant evidence of
actual malice or the lack thereof–when the killer is engaged in a felony whose inherent
danger to human life renders logical an imputation of malice on the part of all who
commit it.’ ” (People v. Patterson (1989) 49 Cal.3d 615, 626.)
       Garcia’s testimony was that his cousin, carrying Garcia’s phones and gloves,
committed the robbery resulting in Raveesh’s death. Garcia did not argue (and the
evidence did not support) that Garcia was present at the house in Monte Sereno but
committed some lesser crime there. Under these circumstances, we conclude that no
reasonable jury could have found that Garcia did an act that resulted in Raveesh’s death
but did not also commit first degree felony murder. (See Taylor, supra, 48 Cal.4th at
                                                77
p. 624.) The trial court therefore was not required to instruct the jury on second degree
murder or involuntary manslaughter.
       B. Garcia’s Challenge to CALCRIM No. 361
       Garcia claims that the trial court erred by instructing the jury with CALCRIM No.
361 regarding his possible failure to explain or deny evidence against him.53 Garcia
argues that, during his testimony, he did not fail to explain or deny any matters that were
within his personal knowledge, as is required for this instruction. The Attorney General
responds that Garcia’s claim of error is forfeited by his failure to object at trial and
otherwise lacks merit and is harmless. Garcia counters that the alleged erroneous
instruction affected his substantial rights and presents a purely legal issue that should be
reviewed on appeal irrespective of the failure to object.
       A defendant does not forfeit a claim of instructional error when the defendant’s
substantial rights have been affected by the error. (§ 1259.) We will consider Garcia’s
argument on its merits here because “[a]scertaining whether claimed instructional error
affected the substantial rights of the defendant necessarily requires an examination of the
merits of the claim—at least to the extent of ascertaining whether the asserted error
would result in prejudice if error it was.” (People v. Andersen (1994) 26 Cal.App.4th
1241, 1249.)
       Garcia’s claim of instructional error is subject to our independent review. (People
v. Posey (2004) 32 Cal.4th 193, 218; People v. Vega (2015) 236 Cal.App.4th 484, 495
(Vega).) “ ‘[T]he correctness of jury instructions is to be determined from the entire
charge of the court . . . .’ ” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)


53
  The instruction reads as follows: “If the defendant failed in his testimony to explain or
deny evidence against him, and if he could reasonably be expected to have done so based
on what he knew, you may consider his failure to explain or deny in evaluating that
evidence. Any such failure is not enough by itself to prove guilt. The People must still
prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to
explain or deny, it is up to you to decide the meaning and importance of that failure.”
                                                  78
       CALCRIM No. 361 is properly given “only when a defendant completely fails to
explain or deny incriminating evidence, or claims to lack knowledge and it appears from
the evidence that the defendant could reasonably be expected to have that knowledge.”
(People v. Cortez (2016) 63 Cal.4th 101, 117.) “Even if the defendant’s testimony
conflicts with other evidence or may be characterized as improbable, incredible,
unbelievable, or bizarre, it is not . . . ‘the functional equivalent of no explanation at all.’ ”
(Ibid.) “[T]he focus of CALCRIM No. 361, as its language indicates, is not on the
defendant’s credibility as a witness, but on the role of a testifying defendant’s failure to
explain or deny incriminating evidence in how jurors ‘evaluat[e] that evidence,’ i.e., the
evidence the defendant has failed to explain or deny.” (Id. at p. 118.)
       The parties dispute whether Garcia failed to explain why Rodriguez—who
allegedly borrowed Garcia’s phone—would have used that phone to call his own phone
that “was messing up that day,” why Rodriguez would not have notified others that he
was reachable on Garcia’s phone, and why Garcia remained silent about Rodriguez’s
involvement during his police interview and thereafter. Garcia argues that why
Rodriguez would have acted in a certain way was not within his personal knowledge and
calls for speculation. Garcia also asserts that he was not directly asked by the prosecutor
why he did not disclose Rodriguez’s participation sooner, and that he in fact provided an
explanation on direct examination for his actions.
       We need not decide whether, in the face of these possible failures to explain, the
trial court erred by instructing the jury regarding Garcia’s testimony with CALCRIM No.
361. Rather, we assume arguendo that there was error here and address whether that
error was prejudicial.
       We apply the Watson standard for prejudice. (People v. Saddler (1979) 24 Cal.3d
671, 682–683 (Saddler) [applying Watson to a similar instruction, CALJIC No. 2.62]; see
also People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1067.) Although Garcia’s
credibility was important to his defense that he did not participate in the crimes, in light
                                                   79
of the entire record, Garcia’s account of events strained credulity. In addition to hearing
evidence about Garcia’s DNA on the five latex gloves, the proximity of his cell phone to
the crime scene, and calls between Garcia’s phone and Rodriguez’s allegedly defective
phone, the jury heard about Austin’s statements to Fritz linking Garcia to the crimes.
       Further, any impact of CALCRIM No. 361 was mitigated both by the language of
the instruction itself and the jury instructions as a whole. If the jury found Garcia’s
testimony about Rodriguez’s actions to be credible, the instruction on its own terms
would be irrelevant, as it applied only “[i]f the defendant failed in his testimony to
explain or deny evidence against him, and if he could reasonably be expected to have
done so based on what he knew . . . .”54 In addition, CALCRIM No. 361 did not direct
the jury to draw an inference adverse to Garcia. Rather, it instructed that the failure to
explain or deny can be considered for its “meaning and importance” as decided by the
jury, but it is “not enough by itself to prove guilt” and the People still had to prove guilt
beyond a reasonable doubt. (See Vega, supra, 236 Cal.App.4th at pp. 502–503; People v.
Lamer (2003) 110 Cal.App.4th 1463, 1472; Saddler, supra, 24 Cal.3d at p. 684.)
       For these reasons, we conclude it is not reasonably probable that a result more
favorable to Garcia would have been reached by the jury had CALCRIM No. 361 not
been given.55


54
   CALCRIM No. 200 told the jury that they could disregard factually inapplicable
instructions: “Some of these instructions may not apply, depending on your findings
about the facts of the case. Do not assume just because I give a particular instruction that
I am suggesting anything about the facts. After you have decided what the facts are,
follow the instructions that do apply to the facts as you find them.” Jurors are presumed
able to understand and correlate instructions and are further presumed to have followed
the court’s instructions. (People v. Covarrubias (2016) 1 Cal.5th 838, 915.)
55
   We also note that our conclusion regarding prejudice would be the same under
Strickland, supra, 466 U.S. at p. 694, had we addressed the alleged instructional error
through a claim of ineffective assistance of counsel. (See People v. Ocegueda (2016) 247
Cal.App.4th 1393, 1407, fn. 4 [“the Watson standard . . . is substantially the same as the
prejudice prong of Strickland”].)
                                                  80
       C. Garcia’s Challenge to the Flight Instruction (CALCRIM No. 372)
       Garcia contends that the flight instruction provided to the jurors violated his right
to due process because it allowed the jurors to draw an “irrational permissive inference”
of guilt from flight. Garcia does not question the relevance of the flight instruction in this
case or argue that the instruction should not have been given at all.
       The flight instruction here provided: “If the defendant fled immediately after the
crime was committed, that conduct may show that he was aware of his guilt. If you
conclude that the defendant fled, it is up to you to decide the meaning and importance of
that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
(CALCRIM No. 372.)
       As Garcia acknowledges, our Supreme Court rejected challenges to the
predecessor of CALCRIM No. 372, CALJIC No. 2.52. (See, e.g., People v. Mendoza
(2000) 24 Cal.4th 130, 180–181, superseded by statute on other grounds as stated by
People v. Brooks (2017) 3 Cal.5th 1, 62–63; Taylor, supra, 48 Cal.4th at p. 630.) Garcia
also acknowledges that the challenge he raises to CALCRIM No. 372 was rejected by the
Fifth District Court of Appeal in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154.
The Hernández Ríos court found no significant difference between the language in
CALJIC No. 2.52 and CALCRIM No. 372 and upheld the latter as constitutional.
(Hernández Ríos, at pp. 1158–1159.) We discern no compelling reason here to depart
from the holding in Hernández Ríos.56


56
  Garcia’s reliance on the Ninth Circuit’s decision in Turner v. Marshall (9th Cir. 1995)
63 F.3d 807, 820, overruled on other grounds in Tolbert v. Page (9th Cir. 1999) 182 F.3d
677, 685, is unpersuasive. In Turner, the court examined CALJIC No. 2.03 and said, “So
long as the instruction does not state that inconsistent statements constitute evidence of
guilt, but merely states that the jury may consider them as indicating a consciousness of
guilt, the instruction would not violate constitutional rights.” (Turner, at p. 820.)
CALCRIM No. 372 does not state that flight is “evidence of guilt.” It merely says that
the jurors may consider evidence of flight regarding whether the defendant was “aware of
his guilt,” and that flight “cannot prove guilt by itself.” (CALCRIM No. 372.)
                                                 81
       Accordingly, we conclude that the flight instruction was proper, and the trial court
did not err by instructing the jury with it.
  III. GARCIA’S DUE PROCESS AND CONFRONTATION CLAUSE CLAIMS
       In this section we address Garcia’s contentions that his constitutional rights were
violated by the trial court’s refusal to strike Austin’s testimony or grant a mistrial after
permitting Austin to reopen his case and testify in his own defense. We also examine
Garcia’s challenge to his conviction for criminal threats.
       A. Motions to Strike Testimony and to Declare a Mistrial
       Garcia contends that the trial court erred when it denied his motion to strike
Austin’s testimony, or, in the alternative, to declare a mistrial based on Austin’s refusal to
identify his coperpetrators. Specifically, Garcia argues that the trial court’s ruling
violated his right to confront a witness against him and his due process right to present
exculpatory evidence.
                1. Background
       Austin moved to reopen his case and testify in his own defense after Garcia had
testified and both Garcia and the People had rested their cases. Garcia objected to
Austin’s motion, asserting that he would be denied his constitutional rights and
prejudiced by Austin’s belated testimony. Garcia’s defense counsel claimed that he
decided to call Garcia and not call a gang expert based on the state of the evidence
presented up to that point. Counsel explained that his direct examination of Garcia was
“catered . . . upon what the evidence was and what wasn’t there”; he anticipated that
Garcia may have to take the stand in rebuttal to Austin’s testimony, which could look to
the jury like Garcia had intentionally omitted information when he first testified; and he
suggested that an in camera hearing on the issue might be necessary.
       The trial court held an ex parte, in camera hearing with Austin and his defense
counsel. Austin’s counsel told the trial court that Austin was “prepared to testify and
admit his involvement in the crime,” but “[was] not going to name any other participant.
                                                  82
He wants to say, I don’t know, I don’t recall.” Austin’s counsel said that Austin would
not talk about Garcia or his testimony. Counsel also stated that Austin would testify
about his gang involvement but would not implicate Garcia as a gang member. Based on
this proffer, the trial court allowed Austin to reopen his case, informing Garcia that
Austin assured the court that his testimony would not implicate Garcia or contradict
Garcia’s testimony.
       Early in his testimony Austin was asked whether he would tell the jury who else
participated in the crime. Austin responded, “I don’t recall who was there. I’m going to
speak on my actions in the situation.” After an unrecorded discussion at the bench, the
trial court advised Austin that if he refused to testify about who else committed the crime,
the court would stop and strike his testimony entirely. Austin reiterated that he was “not
going to answer any questions [about] who was there. I don’t recall who was there.” The
court told Austin that it did not believe him.
       Austin’s defense counsel argued that Austin was not refusing to answer questions;
rather, he only was refusing to identify the other perpetrators. Garcia’s defense counsel
argued that Austin’s alleged lack of recall was invalid and, thus, Austin’s refusal to
answer meant that he was not subjecting himself to cross-examination and his testimony
should be stricken. The prosecutor, on the other hand, withdrew his initial request to
strike Austin’s testimony, stating his belief that a lack of recall was not the same as a
refusal to answer questions.
       Garcia’s defense counsel then moved for a mistrial based on “the untimeliness of
[Austin’s] testimony[,] [his] previous objections to said testimony, and the so far result of
[Austin’s] testimony.” The trial court denied Garcia’s motion, reiterating its earlier
ruling about the propriety of allowing Austin to reopen his case and noting its belief that
Austin’s testimony would not prejudice Garcia. In response, Garcia reasserted that his
confrontation right would be denied by Austin’s continuing testimony and argued that the
jury would infer that Austin was not identifying the other perpetrators because Garcia
                                                 83
was one of them. The trial court again declined to strike Austin’s testimony or grant a
mistrial, stating that it would preclude any subsequent argument by counsel that Austin
was covering for Garcia and it did not believe the jury would automatically infer Austin
was covering for Garcia. The trial court also said it would instruct the jury not to
consider any testimony by Austin regarding Garcia’s involvement. 57
       During his testimony, Austin answered the questions posed to him on direct and
cross-examination but maintained that he could not recall who was involved in the
crime—other than that there were several males present. Regarding Garcia, Austin
admitted to knowing him for about a month or so before the crime and acknowledged
asking Fritz to look up Garcia in the county jail’s online inmate locator. But Austin said
that he had never hung out with Garcia and Drummer at the same time. Garcia did not
cross-examine Austin.
       When instructing the jurors, the trial court directed, “The fact that Mr. Austin
testified that he does not remember who else was at the crime scene cannot be used in
any way by you with regard to any of the issues regarding Mr. Garcia. Okay? You can’t
use that failure of recollection either for or against Mr. Garcia in any way.”
                2. Legal Principles
       “Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, Chambers v. Mississippi [(1973) 410 U.S. 284], or in the Compulsory
Process or Confrontation clauses of the Sixth Amendment [citations], the Constitution
guarantees criminal defendants ‘a meaningful opportunity to present a complete
defense.’ ” (Crane v. Kentucky (1986) 476 U.S. 683, 690.)
       “The Confrontation Clause of the Sixth Amendment gives the accused the right ‘to
be confronted with the witnesses against him.’ This has long been read as securing an

57
  Garcia’s defense counsel also moved for a severance, asking that Garcia’s case proceed
before the present jury and Austin be given a new jury. The trial court denied the
severance motion, and Garcia does not challenge that ruling in this appeal.
                                                 84
adequate opportunity to cross-examine adverse witnesses.” (United States v. Owens
(1988) 484 U.S. 554, 557.) “The Confrontation Clause includes no guarantee that every
witness . . . will refrain from giving testimony that is marred by forgetfulness, confusion,
or evasion. To the contrary, the Confrontation Clause is generally satisfied when the
defense is given a full and fair opportunity to probe and expose these infirmities through
cross-examination, thereby calling to the attention of the factfinder the reasons for giving
scant weight to the witness’ testimony.” (Delaware v. Fensterer (1985) 474 U.S. 15, 21–
22; see also Crawford, supra, 541 U.S. at pp. 61–62 [the confrontation clause “is a
procedural rather than a substantive guarantee” and “commands, not that evidence be
reliable, but that reliability be assessed in a particular manner: by testing in the crucible
of cross-examination”]; People v. Rodriguez (2014) 58 Cal.4th 587, 632 [“As a practical
matter, [the witness’s] claim of total lack of recall limited defendant’s ability to cross-
examine her about her prior statements. But this circumstance does not implicate the
confrontation clause.”].)
       A defendant also enjoys the right to take the witness stand and to testify in his or
her own defense. “Essential to a fair trial is that the accused have the opportunity to
exercise his fundamental, constitutional right to be heard in his own defense by testifying
at trial.” (People v. Reynolds (1984) 152 Cal.App.3d 42, 45 (Reynolds); see also Rock v.
Arkansas (1987) 483 U.S. 44, 49.)
       “[W]here a party is deprived of the benefits of cross-examination of a witness by
refusal of the witness to answer, the trial court may strike out the direct examination.”
(3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial § 240, p. 349; see also
People v. Price (1991) 1 Cal.4th 324, 421 (Price).) Striking a witness’s entire testimony
is a “drastic solution,” (Reynolds, supra, 152 Cal.App.3d at p. 47) only to be employed
“after less severe means are considered.” (Id. at p. 48.) These alternatives include
striking part of the testimony or allowing the trier of fact to consider the witness’s failure
to answer in evaluating his credibility. (Ibid.) In exercising its discretion, the trial court
                                                  85
should consider the witness’s motive in refusing to answer and the materiality of the
testimony he or she has refused to give. (Ibid.)
       “A mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction. [Citation.] Whether a particular incident is
incurably prejudicial is by its nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.” (People v. Haskett (1982) 30
Cal.3d 841, 854.)
       We review Garcia’s due process and confrontation clause claims de novo,
deferring to the trial court’s determination of historical facts. (Giron-Chamul, supra, 245
Cal.App.4th at p. 964.) We review the trial court’s decision whether to strike Austin’s
testimony or grant a mistrial for an abuse of discretion. (Price, supra, 1 Cal.4th at p. 421
[decision to strike testimony]; People v. Jenkins (2000) 22 Cal.4th 900, 985–986 [ruling
on motion for mistrial].)
                3. Analysis
       Garcia argues that he was “deprived of his right to cross-examination because
Austin refused to respond in any meaningful way to the questions asked of him
concerning the identity of those who participated with him in the [] robbery” and
“insisted that he did not recollect the names of those who had joined him in the home
invasion robbery.” Garcia contends that Austin’s feigned forgetfulness prevented
“meaningful questioning about who his accomplices were” and created an inference that
“Garcia was one of those Austin was seeking to protect.” Garcia claims that Austin’s
availability for questioning regarding the details of the crime were “of little consequence
to Garcia’s defense” that he was not involved in the crime. In addition, Garcia argues
that the trial court’s limiting instruction failed to eliminate the prejudice flowing from
Austin’s refusal to identify his crime partners.
       We reject Garcia’s contentions. We conclude that Garcia’s right to confront
Austin was not denied, and the trial court properly exercised its discretion in refusing to
                                                   86
strike Austin’s testimony or grant a mistrial. Garcia had the opportunity, but declined, to
question Austin about any of his testimony. That Austin claimed he did not recall who
committed the crime with him—even if insincere—does not amount, of itself, to a
violation of Garcia’s confrontation right. (Giron-Chamul, supra, 245 Cal.App.4th at
p. 965; see also People v. Homick (2012) 55 Cal.4th 816, 861.) Moreover, we find
unavailing the argument that Austin’s unwillingness to answer questions about his
accomplices deprived Garcia of a meaningful opportunity for cross-examination because
it implicated the sole issue in dispute regarding Garcia (that is, whether he was one of the
perpetrators) and suggested that Garcia was involved.
       Austin’s claimed lack of recollection did not deny Garcia a fair and full
opportunity to test Austin’s memory, knowledge, and credibility before the jury.
Although Austin’s refusal to answer certain questions gives rise to an inference that his
testimony was not believable, it does not follow necessarily that the jury would infer
from the refusal that Garcia himself was being protected by Austin.
       The record suggests an equally if not more plausible inference the jury could have
drawn from Austin’s refusal to testify about his coperpetrators. The jury heard a number
of pieces of evidence from which it could infer that Austin’s refusal to testify about his
coperpetrators was not because Austin was protecting Garcia but because Austin was a
gang member. The gang expert testified that Oakland gangs do not allow their members
to snitch on each other. Austin told the jury he would not testify about the names of the
others involved because he “live[s] by a code of the Oakland streets in general.” The
prosecution’s theory of the case was that Austin committed the crime with other gang
members because they would refuse to cooperate with the police in any subsequent
investigation. The jury found true all of the gang enhancements for Austin.
       Other evidence demonstrated that multiple persons were involved in the crime,
including ENT gang member Drummer. In addition, Garcia presented his own testimony
that he was not involved in the crime and lent his phone to Rodriguez. It is speculative to
                                                87
assert that the jury would include Garcia in the group of confederates simply because
Austin would only speak to Austin’s own involvement in the crime.
       Finding no deprivation of Garcia’s constitutional right to present a meaningful
defense or confront witnesses, we also reject Garcia’s arguments that the trial court
should have struck Austin’s testimony or granted a mistrial on due process grounds. The
trial court appropriately balanced Austin’s right to testify against Garcia’s right to ask
Austin questions and challenge his story. Although Garcia’s defense counsel claimed
that he tailored his presentation in light of Austin’s decision to rest without presenting
any evidence, counsel did not provide any specific support for this argument, and
Garcia’s testimony involved a blanket denial that he participated in the crime. Further,
the trial court protected Garcia against any potential prejudice resulting from Austin’s
asserted lack of recollection by telling the jurors that they could not use the lack of recall
either for or against Garcia. Thus, Garcia’s right to a fair trial was not irreparably
damaged by Austin’s belated testimony. (See People v. Johnson (2018) 6 Cal.5th 541,
581.) We discern no abuse of discretion by the trial court in either failing to strike
Austin’s testimony or declining to grant a mistrial.
       Moreover, even if we assume arguendo that Garcia’s constitutional rights were
violated here, any error was harmless beyond a reasonable doubt under Chapman, supra,
386 U.S. at p. 24. On the whole, the evidence against Garcia was substantial. As
discussed above, Garcia’s DNA was found on latex gloves at the crime scene, and his cell
phone traveled to and was in the area of Harinder and Raveesh’s house at the time of the
robbery. Austin’s DNA and cell phone, too, connected him to the crime scene, and
Harinder identified Austin as her attacker. Fritz testified extensively about Austin’s pre-
and post-crime behavior and statements, including Austin’s mention of his “partner” from
Ghost Town and request that Fritz search for Garcia in the inmate locator. This evidence
overwhelmed Garcia’s denial of involvement in the robbery and his explanations for the
presence of his DNA and cell phone at the crime scene. In addition, Austin’s testimony
                                                 88
concerning Garcia was minimal, did not contradict Garcia’s testimony, and was
otherwise cumulative of independent evidence. Furthermore, the trial court abated any
prejudice flowing from Austin’s claimed lack of recollection by instructing the jury not to
consider it when deciding the case.
       For these reasons, we conclude that Garcia’s constitutional rights to confront
witnesses and present a defense were not violated by the trial court’s rulings, and any
error in that regard was not prejudicial.
       B. Constitutionality of Section 422
       Garcia claims that section 422 is unconstitutionally vague. 58 Specifically, Garcia
argues that the statute impermissibly “calls upon law enforcement to evaluate the nature
of threats and to determine, on a case by case basis, and under a myriad of circumstances,
whether a threat is of the type that will result in great bodily injury or death.” He further
asserts that, “by linking the threat to a crime causing death or great bodily injury, it is
unclear to the general public what type of threats are illegal, because of uncertainties as to
what threatened crimes are of the type to result in death or great bodily injury.”
       “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ The rule of fair warning consists of ‘the due process concepts of preventing
arbitrary law enforcement and providing adequate notice to potential offenders,’
protections that are ‘embodied in the due process clauses of the federal and California
Constitutions.’ The vagueness doctrine ‘ “bars enforcement of a ‘statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence

58
  Section 422 penalizes “[a]ny person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person, with the specific intent that
the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it
out, which, on its face and under the circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat, and thereby causes that
person reasonably to be in sustained fear for his or her own safety or for his or her
immediate family’s safety . . . .” (§ 422, subd. (a).)
                                                   89
must necessarily guess at its meaning and differ as to its application.’ ” ’ A vague law
‘not only fails to provide adequate notice to those who must observe its strictures, but
also “impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 890, citations
omitted.)
       Our Supreme Court “has recognized ‘the strong presumption that legislative
enactments “must be upheld unless their unconstitutionality clearly, positively, and
unmistakably appears. A statute . . . cannot be held void for uncertainty if any reasonable
and practical construction can be given to its language.” ’ Therefore, ‘a party must do
more than identify some instances in which the application of the statute may be
uncertain or ambiguous; he must demonstrate that “the law is impermissibly vague in all
of its applications.” ’ Stated differently, ‘ “[a] statute is not void simply because there
may be difficulty in determining whether some marginal or hypothetical act is covered by
its language.” ’ ” (People v. Morgan (2007) 42 Cal.4th 593, 605–606, citations and
italics omitted.)
       Garcia acknowledges that in People v. Maciel (2003) 113 Cal.App.4th 679, 686,
the Second District Court of Appeal rejected a vagueness challenge to section 422.
Garcia urges us to disregard Maciel in light of two Nebraska Supreme Court cases, State
v. Hamilton (1983) 215 Neb. 694 [340 N.W.2d 397] and State v. Schmailzl (1993) 243
Neb. 734 [502 N.W.2d 463]. In the former case, the court struck down Nebraska’s
criminal threat statute as unconstitutionally vague; in the latter case, a revised statute was
upheld. We decline Garcia’s suggestion because, having reviewed these cases, nothing in
them convinces us that Maciel was wrongly decided or that it inappropriately construed
the Nebraska decisions. (See Maciel, at p. 686, fn. 3.) We decline to reverse established
precedent in California by finding that section 422 is unconstitutional.


                                                 90
                       IV. CLAIMS OF SENTENCING ERROR
       We here address Garcia’s and Austin’s claims that the consecutive sentences
imposed for certain counts should have been stayed. We also consider Garcia’s
contentions that his case should be remanded to permit him to generate a record for his
eventual youth offender parole hearing and the one-year prior prison term enhancement
to his sentence should be stricken.
       Given our conclusion about the special circumstance finding, the trial court will
necessarily have to resentence Austin. For the benefit of the trial court at that future
resentencing, we address certain additional contentions Austin has made with respect to
his sentence—namely that a remand is necessary to allow the trial court to exercise its
discretion to strike Austin’s prior serious felony convictions and the term imposed for a
gang enhancement should be stricken. We do not address Austin’s Eighth Amendment
challenge to his sentence of life without the possibility of parole, which we have vacated
in light of our conclusion on the special circumstance finding. We also do not address
the errors in Austin’s abstracts of judgment identified by the parties.
       A. Garcia’s and Austin’s Challenges to Their Sentences Under Section 654
       Garcia and Austin claim that the trial court erred under section 654 when it
imposed consecutive sentences for various convictions they suffered. Specifically,
Garcia claims that the consecutive sentences for his criminal threats conviction (count 4)
and false imprisonment convictions (counts 5 and 6) violated section 654, because these
crimes were committed to effectuate the robbery and consisted of “a continuing course of
conduct motivated by a single larcenous animus to acquire as much of [Harinder and
Raveesh’s] property as possible.” Austin similarly asserts that the trial court should have
stayed the terms imposed for his assault (count 3), criminal threats (count 4) and false
imprisonment (counts 5 and 6) convictions, because these crimes “were part of an
indivisible course of conduct incident to a single objective”—i.e., “to prevent [Harinder
and Raveesh] from interfering with the robbery.”
                                                 91
                1. Legal Principles
       “Section 654 precludes multiple punishment for a single act or omission, or an
indivisible course of conduct.”59 (People v. Deloza (1998) 18 Cal.4th 585, 591.) “The
purpose of section 654 is to ensure that a defendant’s punishment is commensurate with
his culpability and that he is not punished more than once for what is essentially one
criminal act.” (People v. Hicks (2017) 17 Cal.App.5th 496, 514.)
       “Whether a defendant may be subjected to multiple punishment under section 654
requires a two-step inquiry, because the statutory reference to an ‘act or omission’ may
include not only a discrete physical act but also a course of conduct encompassing several
acts pursued with a single objective. [Citations.] We first consider if the different crimes
were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be
punished more than once for that act. Only if we conclude that the case involves more
than a single act—i.e., a course of conduct—do we then consider whether that course of
conduct reflects a single ‘ “intent and objective” ’ or multiple intents and objectives.
[Citations.] At step one, courts examine the facts of the case to determine whether
multiple convictions are based upon a single physical act. [Citation.] When those facts
are undisputed . . . the application of section 654 raises a question of law we review de
novo.” (People v. Corpening (2016) 2 Cal.5th 307, 311–312.)
       At step two, whether crimes arise from an indivisible course of conduct turns on
the perpetrator’s intent and objective, not the temporal proximity of the offenses. (People
v. Harrison (1989) 48 Cal.3d 321, 335.) “If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not for more
than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled in part on


59
  Section 654, subdivision (a) provides, “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”
                                                 92
another ground in People v. Correa (2012) 54 Cal.4th 331, 341.) Whether a defendant
harbored a single intent—and thus a single objective—is a factual question; the
applicability of section 654 to settled facts is a question of law. (Harrison, supra, at
p. 335.)
       If a trial court erroneously fails to stay the execution of a sentence pursuant to
section 654, the trial court has acted in excess of its jurisdiction, and a reviewing court
must correct the error on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
                 2. Analysis
       When sentencing Garcia, the trial court said it was “running each of these separate
crimes consecutive due to the planning involved in these crimes and due to the
defendant’s prior criminal record,” and that it was “imposing the indeterminate term of
25 years to life to run consecutive to the 12[-year determinate sentence] . . . based upon
the fact that the murder is a separate act of violence from the robbery and the impact on
[Harinder].” At Austin’s sentencing, the trial court said that it selected “consecutive
terms due to the planning, prior strike, the cruelty involved, and all being separate acts of
violence.”60
       Here, there was substantial evidence to support the trial court’s determination that
Garcia and Austin maintained more than one intent and objective under the circumstances
of the crime. It was reasonable for the trial court to infer that the threats to shoot and kill
Harinder were made to keep her silent and avoid detection. Moreover, the trial court
reasonably concluded that hitting Harinder was a separate and gratuitous act of violence
against an unresisting victim, and that binding, gagging, and blindfolding Harinder and
Raveesh were done in anticipation of flight post crime and to allow the perpetrators time
to escape after ransacking the house. (See People v. Nguyen (1988) 204 Cal.App.3d 181,

60
   Although neither counsel for Garcia nor Austin objected under section 654 at
sentencing, the “failure . . . to object on this basis in the trial court does not forfeit the
issue.” (People v. McCoy (2012) 208 Cal.App.4th 1333, 1338.)
                                                   93
193; People v. Coleman (1989) 48 Cal.3d 112, 162–163; People v. Cleveland (2001) 87
Cal.App.4th 263, 271–272.)
       For these reasons, we conclude that the trial court properly imposed unstayed
sentences under section 654 on counts 4, 5, and 6 for Garcia and counts 3, 4, 5, and 6 for
Austin.
       B. Garcia’s Request for a Franklin Hearing
       Garcia argues that his case should be remanded for the purpose of permitting him
to generate a record for his eventual section 3051 youth offender parole hearing. In
People v. Franklin (2016) 63 Cal.4th 261 (Franklin), the California Supreme Court
addressed the constitutional and statutory implications of the enactment of sections 3051
and 4801, which require the Board of Parole Hearings to conduct a youth offender parole
hearing for certain youthful offenders during their 25th year in prison. (See Franklin, at
pp. 276–277.)
       In Franklin, the California Supreme Court determined that the record was not
clear “whether Franklin had sufficient opportunity to put on the record the kinds of
information that sections 3051 and 4801 deem relevant at a youth offender parole
hearing.” (Franklin, supra, 63 Cal.4th at p. 284.) Referencing section 3051, the
Supreme Court described relevant information as statements by “ ‘[f]amily members,
friends, school personnel, faith leaders, and representatives from community-based
organizations with knowledge about the individual before the crime.’ ” (Id. at p. 283.)
The court in Franklin noted that “[a]ssembling such statements ‘about the individual
before the crime’ is typically a task more easily done at or near the time of the juvenile’s
offense rather than decades later when memories have faded, records may have been lost
or destroyed, or family or community members may have relocated or passed away.” (Id.
at pp. 283–284.)
       Because Franklin’s sentencing hearing had occurred prior to key decisions of the
United States and California Supreme Court related to the application of the Eighth
                                                 94
Amendment to youthful offenders and to the enactment of sections 3051 and 4801, the
California Supreme Court ordered Franklin’s case remanded to the trial court “for a
determination of whether Franklin was afforded sufficient opportunity to make a record
of information relevant to his eventual youth offender parole hearing.” (Franklin, supra,
63 Cal.4th at p. 284.) The court further stated, “If the trial court determines that Franklin
did not have sufficient opportunity, then the court may receive submissions and, if
appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of
the California Rules of Court, and subject to the rules of evidence. Franklin may place on
the record any documents, evaluations, or testimony (subject to cross-examination) that
may be relevant at his eventual youth offender parole hearing, and the prosecution
likewise may put on the record any evidence that demonstrates the juvenile offender’s
culpability or cognitive maturity, or otherwise bears on the influence of youth-related
factors. The goal of any such proceeding is to provide an opportunity for the parties to
make an accurate record of the juvenile offender’s characteristics and circumstances at
the time of the offense so that the Board, years later, may properly discharge its
obligation to ‘give great weight to’ youth-related factors (§ 4801, subd. (c)) in
determining whether the offender is ‘fit to rejoin society’ despite having committed a
serious crime ‘while he was a child in the eyes of the law.’ ” (Ibid.)
       Between 2013 and January 1, 2016, “only persons under 18 at the time of their
controlling offense[61] were entitled to a youth offender parole hearing. (Stats. 2013, ch.
312, § 4.)” (People v. Costella (2017) 11 Cal.App.5th 1, 8.) Effective January 1, 2016,
the Legislature extended the right to a youth offender parole hearing under section 3051
to individuals who were 23 years old or younger when they committed the controlling
offense. At the time of Garcia’s sentencing section 3051 provided, “A person who was

61
  Section 3051 defines a “ ‘[c]ontrolling offense’ ” as “the offense or enhancement for
which any sentencing court imposed the longest term of imprisonment.” (§ 3051,
subd. (a)(2)(B).)
                                                 95
convicted of a controlling offense that was committed before the person had attained 23
years of age and for which the sentence is a life term of 25 years to life shall be eligible
for release on parole by the board during his or her 25th year of incarceration at a youth
offender parole hearing, unless previously released or entitled to an earlier parole
consideration hearing pursuant to other statutory provisions.” (Former § 3051, subd.
(b)(3).)62
       Garcia was 21 years of old when he committed the crimes here. The California
Supreme Court issued Franklin on May 26, 2016 (Franklin, supra, 63 Cal.4th at p. 261),
and the jury rendered its verdicts on June 6 and 7, 2016. The trial court sentenced Garcia
on July 8, 2016.
       Garcia argues that he is entitled to a remand to allow him to make a record
relevant to his eventual youth offender parole hearing. Garcia acknowledges that his
sentencing occurred approximately six weeks after the California Supreme Court issued
its decision in Franklin and six months after the effective date of the amendment to
section 3051 that extended the right to a youth offender parole hearing to him.
Nevertheless, Garcia argues that this court should remand his case to the trial court
because his trial counsel made “no attempt” to assemble a record in anticipation of a
youth offender parole hearing, and no information relevant to such a hearing was placed
in the record. The Attorney General argues that, unlike in Franklin, there is no indication
that Garcia lacked an opportunity to put on the record information relevant at a youth
offender parole hearing under sections 3051 and 4801.


62
  Effective January 1, 2018, this provision was amended to apply to offenders aged 25 or
younger: “A person who was convicted of a controlling offense that was committed
when the person was 25 years of age or younger and for which the sentence is a life term
of 25 years to life shall be eligible for release on parole by the board during his or her
25th year of incarceration at a youth offender parole hearing, unless previously released
or entitled to an earlier parole consideration hearing pursuant to other statutory
provisions.” (§ 3051, subd. (b)(3).)
                                                 96
       Garcia counters that the right to a Franklin hearing for non-juveniles was not
recognized by any Court of Appeal until August 1, 2016—that is, a few weeks after
Garcia’s sentencing. (See People v. Perez (2016) 3 Cal.App.5th 612.) In Perez, the
Court of Appeal reviewed an appeal of a defendant who was 20 years old at the time he
committed the crimes and found “the record establishes [the defendant] did not have a
sufficient opportunity to put on the record the kinds of information that sections 3051 and
4801 deem relevant at a youth offender parole hearing.” (Id. at p. 619.) The court in
Perez ordered a remand “for the limited purpose of affording both parties the opportunity
to make an accurate record of [the defendant]’s characteristics and circumstances at the
time of the offense as set forth in Franklin.” (Id. at pp. 619–620.)
       Garcia further notes that the sentencing transcript makes clear that neither the trial
court, the prosecutor, nor defense counsel considered the application of Franklin to him.
Garcia states that the Attorney General’s argument amounts to a contention that Garcia
has forfeited any Franklin claim, and forfeiture should not apply where the law in a
particular area is unsettled, as it was here with respect to Franklin’s application to non-
juveniles.
       The trial court record reveals scant information about Garcia’s “characteristics and
circumstances at the time of the offense.” (Franklin, supra, 63 Cal.4th at p. 283.) Garcia
testified in his own defense but provided little biographical information about himself,
other than he was raised by his grandmother in east Oakland, his mother was “on crack,”
he did not graduate from high school, and his family members consisted of his
grandmother, his brothers, cousins, a young child, and the mother of his child. In
addition, Garcia testified that he was not a gang member but earned money from selling
crack. Garcia also had a few certificates from a trade school.
       The probation report submitted for Garcia’s sentencing states that defense counsel
“waived the interview with the defendant.” The probation report cites Garcia’s criminal
history and states, “[d]eeper insight could not be gained to evaluate the defendant’s
                                                 97
character and prospects as the interview was waived.” With respect to considerations
related to Garcia’s age, the report states only “[d]espite being just 25-years-old, the
defendant has continued to engage in criminal conduct and has spent a significant portion
of his adult life incarcerated as a result.”
       The record does not indicate that Garcia’s defense counsel submitted a sentencing
memorandum to the trial court on his behalf. At Garcia’s sentencing hearing, the
prosecutor read a victim impact statement submitted by Harinder. No one addressed the
trial court on Garcia’s behalf, and Garcia’s defense counsel did not make any statements
regarding the appropriate sentence or about Garcia’s circumstances. 63
       We agree with the Attorney General that the record provides no indication that the
trial court prevented Garcia’s defense counsel from introducing information relevant to
Garcia’s future youth offender parole hearing. Furthermore, the issuance of the decision
in Franklin and the entry into force of the amendments to section 3051 should have put
Garcia’s counsel on notice of the importance of putting into the trial record evidence
related to Garcia’s characteristics and circumstances at the time of the offense,
particularly with respect to his age. The record is equally clear, however, that Garcia’s
counsel did not do so.
       The probation report likewise does not contain information relevant to the future
youth offender parole hearing. Except with respect to the precise age of the defendant,
the following observations apply equally to Garcia: “the [probation] report is largely
bereft of information about appellant’s character, cognitive ability, psychological
functioning or maturity. It tells us very little about what kind of 16-year-old appellant is
other than the fact he is the kind who commits this crime. Appellant should have the
chance to provide a fuller picture than that. Indeed, the report essentially ignores the fact
appellant was only 16 years old when his crimes occurred, and it offers no analysis or

 Garcia’s trial counsel was not present at his sentencing hearing; another member of
63

Garcia’s defense counsel’s office appeared with Garcia at his sentencing.
                                                 98
insight whatsoever as to how this factor may have affected his behavior.” (People v.
Tran (2018) 20 Cal.App.5th 561, 570.)
       Garcia’s situation, therefore, is not equivalent to that of other individuals for
whom Courts of Appeal have denied Franklin remands due to the adequacy of facts in
the record related to their personal circumstances. (See, e.g., People v. Cornejo (2016) 3
Cal.App.5th 36, 69 [citing 23 character reference letters submitted to the trial court];
People v. Woods (2018) 19 Cal.App.5th 1080, 1089 [observing defendant’s “probation
report included information regarding defendant’s psychological and medical problems,
along with a summary of [a doctor’s] report. This summary included details of
defendant’s home life, education, psychiatric treatment, criminal history, and IQ test.”].)
No such information related to Garcia appears in the record developed in the trial court.
       Considering both the importance of contemporaneous information about Garcia’s
circumstances to his eventual parole youth offender hearing and recognizing that the
applicability of section 3051 to non-juveniles was relatively novel at the time of Garcia’s
sentencing, we decline to apply the doctrine of forfeiture. We also agree with Garcia that
a remand is appropriate under these circumstances. This remand will allow the trial court
to determine whether Garcia was afforded sufficient opportunity to make such a record
and, if not, to conduct such a hearing in order that Garcia and the People may do so.
       C. Section 667.5, Subdivision (b) Enhancement to Garcia’s Sentence
       In a supplemental brief, Garcia requests that we order the trial court to strike the
one-year prior prison term enhancement imposed at his sentencing pursuant to section
667.5, subdivision (b) (section 667.5(b)). We afforded the Attorney General an
opportunity to respond to Garcia’s supplemental briefing, but he has not done so.
       On October 8, 2019, the Governor signed Senate Bill No. 136. (2019-2020 Reg.
Sess.) (Stats. 2019, ch. 590, § 1.) Under the new law, the one-year prior prison term
enhancement in section 667.5(b) applies only to a prior prison term served for a sexually
violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
                                                 99
(§ 667.5, subd. (b).) The prior prison term enhancement imposed on Garcia was based on
a felony conviction under Health and Safety Code section 11351.
         Garcia argues that, because his case is not yet final, the new law should apply
retroactively to him under the Estrada64 rule. We agree. Under Estrada, “an amendatory
statute lessening punishment is presumed to apply in all cases not yet reduced to final
judgment as of the amendatory statute’s effective date.” (People v. Floyd (2003) 31
Cal.4th 179, 184; see also In re Kirk (1965) 63 Cal.2d 761, 762–763; People v. Brown
(2012) 54 Cal.4th 314, 323–324.) “The Estrada rule rests on the presumption that, in the
absence of a savings clause providing only prospective relief or other clear intention
concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing only as
necessary between sentences that are final and sentences that are not.’ ” (People v.
Buycks (2018) 5 Cal.5th 857, 881.)
         Nothing in Senate Bill No. 136 evinces a legislative intent that the amendment to
section 667.5(b) applies prospectively only. We thus conclude that, under Estrada, the
amendment to section 667.5(b) applies to Garcia. (See People v. Jennings (2019) 42
Cal.App.5th 664, 682; see also People v. Lopez (2019) 42 Cal.App.5th 337, 340–342.)
We have already determined that Garcia’s case must be remanded to the trial court for it
to consider whether to conduct a Franklin hearing. We also order the trial court to strike
the one-year enhancement and to resentence Garcia.
         D. Section 667(a) Enhancements to Austin’s Sentence
         The trial court found true Austin’s prior serious felony conviction allegation.
(§ 667, subd. (a) (section 667(a)).) As part of Austin’s sentence, the trial court imposed a
consecutive five-year term for the prior serious felony on the determinate sentences for




64
     In re Estrada (1965) 63 Cal.2d 740.
                                                 100
counts 3, 4, 5, and 6 and also imposed five-year terms for the prior serious felony on each
of the indeterminate sentences for counts 1 and 2.
       Austin argues that Senate Bill No. 1393, effective January 1, 2019, gives the trial
court discretion to strike the allegation under section 667(a)—an authority the trial court
did not possess at the time it sentenced Austin—and therefore his case must be remanded
to the trial court for it to consider whether to exercise its discretion to strike the
enhancements pursuant to its authority under section 1385. (Stats. 2018, ch. 1013, §§ 1,
2; People v. Jones (2019) 32 Cal.App.5th 267, 272 (Jones); People v. Rocha (2019) 32
Cal.App.5th 352, 360 (Rocha).) The Attorney General agrees, as do we.
       Senate Bill No. 1393’s amendment to section 667(a) extends to “all defendants
whose judgments are not final as of the amendment’s effective date,” and it therefore
applies to Austin. (See Jones, supra, 32 Cal.App.5th at p. 273.) Nevertheless, “[w]e are
not required to remand to allow the court to exercise its discretion if ‘the record shows
that the trial court clearly indicated when it originally sentenced the defendant that it
would not in any event have stricken [the] . . . enhancement’ even if it had the
discretion.” (Ibid.) Without a clear indication of the trial court’s intent, remand is
required. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)
       We have reviewed the transcript of Austin’s sentencing hearing. We do not
believe that it clearly shows whether the trial court would have stricken the enhancements
under section 667(a) if it had the discretion to do so. We therefore remand Austin’s case
to the trial court so that the trial court may hold a hearing to consider whether to exercise
its independent discretion on whether to strike the prior conviction enhancements.
(§ 667(a).) Austin, his counsel, and counsel for the People have the right to be present at
the hearing. (See Rocha, supra, 32 Cal.App.5th at p. 360.) We express no opinion as to
how the trial court should exercise its discretion.




                                                  101
       E. Imposition of a Gang Enhancement on Austin’s Conviction for Count 1
       Austin argues, and the Attorney General concedes, that the trial court committed
error when it imposed and stayed the punishment for the gang enhancement on count 1.
The jury convicted Austin of count 1, a violation of sections 187/189, and also found true
a gang enhancement under section 186.22, subdivision (b)(1)(C). The trial court
sentenced Austin on count 1 to life imprisonment without the possibility of parole. The
trial court stated that, as to “[t]he gang enhancement pursuant to [section] 186.22[, subd.]
(b)(1)(c)[,] punishment for that enhancement of ten years will be stayed pursuant to
People versus Lopez [(2005) 34 Cal.4th 1002 (Lopez)].”
       Austin and the Attorney General maintain that, under Lopez, the trial court should
have stricken the gang enhancement instead of staying it. We agree. (See Lopez, supra,
34 Cal.4th at p. 1011 [finding error in applying the 10-year gang enhancement to the
defendant’s first degree murder conviction and ordering the enhancement “delete[d]”
from the sentence]; People v. Arauz (2012) 210 Cal.App.4th 1394, 1404 [striking the 10-
year gang enhancements imposed on life terms].) We have already determined that
Austin’s sentence must be reversed and his case remanded for the trial court to exercise
its independent discretion on whether to strike the prior conviction enhancements. On
remand we also order the trial court to strike the 10-year gang enhancement on Austin’s
conviction for count 1 and resentence Austin. (Lopez, at p. 1011.)
       F. Corrections to Garcia’s Minute Order
       We “may correct clerical errors at any time” to make the court’s “ ‘records reflect
the true facts.’ ” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Although the parties
did not raise this error, we order the trial court to correct Garcia’s minute order for June
7, 2016, which incorrectly states that the jury found true the gang allegation for count 1.65

65
  For the trial court’s benefit at Garcia’s resentencing, we note errors in the original
abstracts of judgment and sentencing minute order. The abstract of judgment for the

                                                102
                                      DISPOSITION
       The judgment against Garcia is reversed and the matter remanded to the trial court.
Garcia’s convictions are affirmed. Upon remand, the trial court shall strike the sentence
enhancement imposed under section 667.5, subdivision (b) and shall resentence Garcia
accordingly. The matter is also remanded for the trial court to determine whether Garcia
had an adequate opportunity to make a record of information that will be relevant to his
eventual youth offender parole hearing, and, if not, to allow the parties the opportunity to
make a record of such information pursuant to Franklin, supra, 63 Cal.4th 261. (Pen.
Code, §§ 3051 & 4801.) After resentencing, the trial court is directed to forward an
amended abstract of judgment to the Department of Corrections and Rehabilitation. The
trial court is also ordered to correct Garcia’s minute order for June 7, 2016, to indicate
that the jury found not true the gang allegation for count 1 in his case.
       In Austin’s case, we reverse the judgment imposing a sentence of life without the
possibility of parole, vacate the special circumstance finding, and remand the case to the
trial court so that the People may elect whether to retry Austin on the special
circumstance allegation. Austin’s convictions are otherwise affirmed.
       At Austin’s resentencing, the trial court should decide whether to exercise its
discretion to strike any of the prior conviction enhancements under section 667(a) and
shall also strike the 10-year gang enhancement (§ 186.22, subd. (b)(1)(C)) on count 1.
After resentencing, the trial court is directed to forward an amended abstract of judgment
to the Department of Corrections and Rehabilitation.


indeterminate term erroneously states that the crime of conviction for count 1 is “2nd
degree murder” under section “187(a).” Similarly, Garcia’s minute order for July 8, 2016
incorrectly states that Garcia was sentenced on count 1 to 25 years to life for a violation
of second degree murder (“PC 187(A)/2nd”). Garcia, however, was convicted of and
sentenced for first degree murder under sections 187 and 189. In addition, on Garcia’s
original abstract of judgment for the determinate terms, the box in item 7 should have
been checked to indicate that he received an indeterminate term in addition to the
determinate terms.
                                                103
                                 ______________________________________
                                            DANNER, J.




I CONCUR:




____________________________________
GROVER, J.




H043870 - The People v. Garcia
H044073 - The People v. Austin
Mihara, Acting P. J., Dissenting and Concurring.

       While I agree that the judgment as to DeAngelo Joseph Austin must be reversed,
my analysis differs from that of the majority opinion. In my view, the trial court
prejudicially erred in instructing the jury on the actual killer theory with CALCRIM No.
730 because there was not substantial evidence that Austin was the actual killer of Mr.
Raveesh Kumra and this instruction permitted the jury to rely on the prosecutor’s legally
invalid theory. In addition, while, like the majority opinion, I would reject Austin’s
challenges to the gang enhancement findings, I would not reach the merits of most of his
challenges because he forfeited these claims by failing to obtain an express ruling on
                          1
them from the trial court. I also would not address any sentencing issues as to Austin
since we are reversing the judgment. As to Javier Ruben Rodriguez Garcia, I agree that
the judgment should be reversed and the matter remanded for resentencing and a
Franklin hearing.


                                 I. Special Circumstance
                                      A. The Statute
       “The penalty for a defendant who is found guilty of murder in the first degree is
death or imprisonment in the state prison for life without the possibility of parole if one
or more of the following special circumstances has been found under Section 190.4 to be
true: [¶] . . . [¶] (17) The murder was committed while the defendant was engaged in, or
was an accomplice in, the commission of, attempted commission of, or the immediate
flight after committing, or attempting to commit, the following felonies: [¶]



1
       Although the Attorney General did not pursue a forfeiture argument, Austin
addressed forfeiture in his opening brief. Consequently, the forfeiture issue has been
briefed.
(A) Robbery in violation of Section 211 or 212.5. [¶] . . . [¶] (G) Burglary in the first or
                                                                                   2
second degree in violation of Section 460.” (Pen. Code, § 190.2, subd. (a)(17).
       Section 190.2 further provides: “(b) Unless an intent to kill is specifically required
under subdivision (a) for a special circumstance enumerated therein, an actual killer, as
to whom the special circumstance has been found to be true under Section 190.4, need
not have had any intent to kill at the time of the commission of the offense which is the
basis of the special circumstance in order to suffer death or confinement in the state
prison for life without the possibility of parole. [¶] (c) Every person, not the actual
killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits,
requests, or assists any actor in the commission of murder in the first degree shall be
punished by death or imprisonment in the state prison for life without the possibility of
parole if one or more of the special circumstances enumerated in subdivision (a) has been
found to be true under Section 190.4. [¶] (d) Notwithstanding subdivision (c), every
person, not the actual killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state prison for life without
the possibility of parole if a special circumstance enumerated in paragraph (17) of
subdivision (a) has been found to be true under Section 190.4.” (§ 190.2, italics added.)
       Thus, the robbery-murder or burglary-murder special circumstance may be found
true under any of three theories. First, it may be found true as to the actual killer even if
the actual killer did not have the intent to kill. Second, it may be found true as to a
person who is not the actual killer but who, with the intent to kill, aids and abets the
actual killer in a first degree murder. Third, it may be found true as to someone who was


2
       Subsequent statutory references are to the Penal Code unless otherwise specified.
                                                  2
not the actual killer and did not have the intent to kill if that person was an aider and
abettor of the felony, was a major participant in the felony, and acted with reckless
indifference to human life. In this case, the prosecution pursued only the first and third
theories.


                           B. The Evidence Presented At Trial
        Austin’s sister was a prostitute, and Mr. Kumra was her client for many years.
She took Austin to Mr. Kumra’s Monte Sereno home several times over the years.
Although she saw Mr. Kumra frequently until the end of 2011, she was unaware that he
had any “medical issue[s].” At the end of November 2012, Austin queried his sister
about Mr. Kumra, indicating that he planned to rob Mr. Kumra. Austin drove by the
Kumra home early on the day of the robbery. Austin’s sister made a sketch of the Kumra
home to facilitate the robbery, and Austin picked up the sketch from her later that day
while accompanied by two other men.
        On the evening of the robbery, Austin called his sister and told her that Mr. Kumra
was drinking. She admonished him “not to do too much, to be careful . . . .” When
Austin entered the bedroom of Mr. Kumra’s ex-wife, Mrs. Harinder Kumra, she woke up
and started screaming. Austin responded to her screaming by hitting her in the face with
                                                                      3
his cell phone, which cut her lip, and telling her to stop screaming. Austin threatened
Mrs. Kumra, told her to go to the kitchen, and followed her to the kitchen, where Austin’s
compatriots were beating Mr. Kumra. Mr. Kumra was “struggling” with his hands “tied”
behind his back, and Mrs. Kumra saw him on the ground face down just before
something was tied around her eyes to cover them.
        Mrs. Kumra told a person who was “sitting in a chair” in the kitchen that
Mr. Kumra “is a heart patient. Don’t do that. He’ll die. And they didn’t listen.”

3
        Mrs. Kumra needed stitches for the cut to her lip caused by Austin striking her
face.
                                                  3
Mrs. Kumra’s mouth was covered with tape, but she was still able to speak. Mrs. Kumra
heard at least three men in the house while she was in the kitchen. After an hour or two,
Mrs. Kumra became concerned that Mr. Kumra was not moving, and she mentioned her
concern to the person in the chair. She heard him get up, and he then told her: “Don’t
worry. If needed, we’ll call 911 or something like that.” Eventually the men told her that
they were leaving. Mrs. Kumra managed to free herself and discovered that all but one of
the telephones had been disconnected. She used that phone to call 911.        When the
police arrived, Mr. Kumra had no pulse, was cold to the touch, and was unresponsive.
He was “hogtied” and lying on his stomach. Duct tape was “wrapped around [Mr.
Kumra’s] head.” “The tape had been wrapped around his head several times covering his
mouth and almost up to his nasal passage.” A police officer “tried to remove the tape
from around his mouth” in an effort to “clear the airway,” and he rolled Mr. Kumra over
on his back. Mr. Kumra showed “[n]o signs of life.” Mrs. Kumra asked the police to
show her Mr. Kumra, and she saw that “it was so much mask on him that even his nose,
everything was masked. His whole face was masked.” His face and head had numerous
abrasions, bruises, and lacerations, including lacerations on his inner lip. He had a bruise
on his arm and an abrasion on his abdomen. The injuries to his head had been caused by
blunt force trauma. Mr. Kumra’s “cause of death was probable asphyxia due to
suffocation due to duct tape over mouth.” Other “contributory conditions” were “[s]leep
apnea, deviated nasal septum, coronary artherosclerosis, and hypertensive cardiovascular
disease.”
       A pair of tan sweatpants and a tape roll were found in the family room, which was
adjacent to the kitchen where Mr. Kumra’s body was found. The sweatpants were found
on the family room floor, while the tape roll was found on the family room’s fireplace




                                                 4
       4
mantel. Austin’s DNA was found on the edge of a piece of tape attached to these
sweatpants and on the edges of the tape roll. DNA possibly belonging to Mr. Kumra was
also found on the edge of the piece of tape attached to the sweatpants. DNA possibly
belonging to both Mr. and Mrs. Kumra was found on the edges of the tape roll.
Marcellous Drummer’s DNA was found on Mr. Kumra’s hand.
       The day after the robbery, Austin told his sister: “Man, shit went crazy. It was,
like, somebody was hitting him. [He] was trying to fight back. His wife was screaming,
saying that, whatever he owes, I’ll pay it.” Austin told his sister that he “touched [Mr.
Kumra]” and “thought that he was dead.” Drummer told Austin’s sister that he “didn’t
do anything. I was just, like, sitting, like, watching them.”
       Austin testified at trial and admitted that he was one of the men who committed
the home invasion robbery of the Kumra home. Austin admitted that his sister had told
him to “be careful” because Mr. Kumra was old and asked Austin not to hurt Mr. Kumra.
He testified that he gave her his word that he “wasn’t going to hurt nobody,” and that he
would “be careful with him.” His sister told him nothing about Mr. Kumra having any
medical conditions. Austin did not think that Mr. or Mrs. Kumra would resist the
robbery; he thought it was “just going to be easy.” He told the other men “to be careful
with the dude,” and he also told them that there “was no need for no gun or no knife”
because it was “going to be more like a piece of cake . . . .” Austin did not know if any
of the other men had ever killed anyone.
       Austin knew when he arrived at the Kumra home that day that there were people
present in the house. He saw Mr. Kumra “swigging” alcohol before he entered the house.
One of the men had brought duct tape, but it was left in the car until one of them asked
Austin to retrieve it. He did so. He handed it to one of the other men to bring into the

4
       These were not the pants Mr. Kumra was wearing at the time of the robbery
because his body was fully clothed, including shirt, pants, and shoes, when the autopsy
began.
                                                 5
house. After he retrieved the duct tape, Austin put on gloves and wore them throughout
the rest of the robbery. Austin knew that the other men were going to use the duct tape to
tie up Mr. Kumra and that they were going to “cover his mouth” with duct tape. Austin
knew it was likely that Mr. Kumra would be physically touched and threatened during the
robbery. Austin told the other men: “[T]his is going to be easy. He’s not going to fight
back. Just go over there and just get him. And I’ll go get the safe and we’re out of here.”
       When they entered the house, Austin went immediately to the room where he
expected to find the safe and instead encountered Mrs. Kumra. He was surprised to find
her there. Austin admitted that he struck Mrs. Kumra, and he claimed that he did so
because she “was grabbing on me” and “screaming belligerently.” He claimed that he
was holding his phone in his left hand and struck her with his right “fist.” Immediately
after striking her, he “felt bad” because he saw the injury to her lip.
       When Austin brought Mrs. Kumra into the kitchen, one man was using duct tape
on Mr. Kumra and the other man was holding Mr. Kumra. Austin denied participating in
the duct taping or binding of either Mr. or Mrs. Kumra. Austin told the others to “be
careful with her,” and left the kitchen. He did not hear Mrs. Kumra say anything at all at
that point. Austin testified that he “wasn’t present” to see “what happened to Mr.
Kumra.” When he left Mrs. Kumra in the kitchen, the other men were “holding” Mr.
Kumra, and Mr. Kumra was “moving around” and “yelling.”
       Austin was aware that as the other men were “were putting the tape on him” they
were “hitting him” in response to him fighting back. He did not supervise the other men,
did not intervene, and did not observe precisely where the duct tape was being applied.
At the end of the robbery, Austin returned to the “family room area” and saw Mr. and
Mrs. Kumra. Mrs. Kumra was “moving around and crying.” Mr. Kumra was not
moving, and it was clear to Austin that the other men had hit Mr. Kumra and that he was
dead. He “got scared” and left the Kumra home.


                                                  6
                               C. The Court’s Instructions
       The trial court’s felony-murder instructions included a causation instruction
identical to CALCRIM No. 240, which told the jury the meaning of “causes death.” “An
act causes death if the death is the direct natural and probable consequence of the act and
the death would not have happened without the act. [¶] A natural and probable
consequence is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and probable, consider
all the circumstances established by the evidence. [¶] There may be more than one cause
of death. An act causes death only if it is a substantial factor in causing the death. A
substantial factor is more than a trivial or remote factor. However, it does not need to be
the only factor that causes the death.”
       The court’s special circumstance instructions contained no causation instruction.
CALCRIM No. 730, the special circumstance instruction concerning the “actual killer”
theory, told the jury: “Each defendant is charged with a special circumstance of murder
committed while engaged in the commission of a robbery in violation of Penal Code
Section 190.2(a) (17). [¶] To prove that this special circumstance is true, the People
must prove that: [¶] (1) The defendant committed or aided and abetted or was a member
of a conspiracy to commit a robbery; [¶] (2) The defendant intended to commit or
intended to aid and abet the perpetrator in committing or intended that one or more
members of the conspiracy commit robbery and; [¶] (3) The defendant did an act that
caused the death of another person.” (Italics added.) CALCRIM No. 730 did not use the
words “actual killer.”
       CALCRIM No. 703, the special circumstance instruction concerning the major
participant/reckless indifference theory, told the jury: “If you decide that a defendant is
guilty of first degree murder but was not the actual killer, then, when you consider the
special circumstance, you must also decide whether the defendant acted either with the
intent to kill or with reckless indifference to human life. [¶] In order to prove this special
                                                  7
circumstance for a defendant who is not the actual killer who is guilty of first degree
murder as an aider and abettor or a member of a conspiracy, the People must prove either
that the defendant intended to kill or the People must prove all of the following: [¶] (1)
The defendant’s participation in the crime began before or during the killing; [¶] (2) The
defendant was a major participant in the crime and; [¶] (3) When the defendant
participated in the crime, he acted with a reckless indifference to human life. A person
acts with reckless indifference to human life when he knowingly engages in criminal
activity that he knows involves a grave risk of death. The People do not have to prove
that the actual killer acted with the intent to kill or with a reckless indifference of human
life in order for the special circumstance to be true. [¶] . . . [¶] If the defendant was not
the actual killer, then the People have the burden of proving beyond a reasonable doubt
that he acted either with the intent to kill or with reckless indifference to human life and
was a major participant in the crime for the special circumstance to be true. If the People
have not met this burden, you must find the special circumstance has not been proved
true.”


                                D. Arguments To The Jury
         The prosecutor argued to the jury regarding the murder count: “And so when you
tape him up and you cover his mouth and you cover his nose, these are substantial factors
in his death. In fact, these are what caused his death. They are more than just substantial
factors. It’s what caused his death.”
         In arguing to the jury regarding the special circumstance, the prosecutor told the
jury to “[s]tart by looking at 730.” “To prove it’s true, there are two ways. 730 is the
first one. Committed robbery or was in the conspiracy or aided and abetted, intended to
commit robbery, and the defendant did an act that caused the death of another person.
This is the instruction you use to find DeAngelo Austin guilty. I’m sorry, to find the
special circumstance true, that he did an act that caused the death of another person. At
                                                  8
the minimum, at his minimizing level of his guilt, he gave the duct tape which was the
instrumentality of death.”
       The prosecutor also told that the jury that it could consider “a second
version. . . . If you don’t believe that 730 applies to Mr. Austin or if you don’t believe it
applies to Mr. Garcia, which I would argue I have not proved that Mr. Garcia engaged in
the acts that caused the death. So this is what you would use for Mr. Garcia. There’s no
evidence that he handed over the tape.” “I do not have to prove the actual killer acted
with an intent to kill.” “[If] [y]ou can’t agree whether they’re the actual killers, what I’m
telling you to do. If 730 doesn’t apply to Garcia, go to 703. In order to find it true, either
acted with an intent to kill. There’s no evidence of that. [¶] Or find that he acted with a
reckless indifference and was a major participant in the crime.”
       After urging the jury to apply CALCRIM No. 703 to Garcia, the prosecutor told
the jury that “of course, you can use all this for Mr. Austin as well, except he has so many
more yes answers [regarding the factors to consider in making a determination on the
reckless indifference issue] based on his own planning and involvement.” “Mr. Austin
told you he was told that he instructed he’s old and don’t hurt, but he did no supervision
of the people he had brought. He didn’t care what happened to Mr. Kumra or Mrs.
Kumra. That’s what his actions tell you. Mr. Kumra’s on the floor after being beaten,
which wasn’t supposed to happen. No one was to get hurt. [¶] So does he stay there to
honor the promise to his sister? No.”
       Austin’s trial counsel limited his closing argument to the special circumstance and
the gang allegations. He argued: “The actual killer, that is, the people that applied the
tape to Mr. Kumra, hit Mr. Kumra, and killed him are actual killers. Kevin Smith [(the
prosecutor)], as I will demonstrate to you, is glossing over this. And, . . . he is dead
wrong on this issue.” “[The prosecutor] argued to you . . . that you could find DeAngelo
Austin to be the actual killer because he brought the tape and gave the tape to someone.
No. That’s dead wrong. That’s not the law. And if you carefully study the two jury
                                                  9
instructions that are in play here, 703, 730, which applies to the actual killer special
circumstance and 703, which I’ll go through with you, clearly, Mr. Austin is not the
actual killer. [¶] 730, which applies to the actual killer says as part of the instruction that
the actual killer is a person that did an act that caused the death of another by definition
did the deadly attack, [not] did provide the equipment, provide the tools, but did the
deadly act. It’s not DeAngelo Austin. Mr. Kevin Smith knows that. He can’t prove who
did the deadly act of beating and binding Mr. Kumra. [¶] And instruction 703, which
talks about the potential liability for the special circumstance of someone who is not the
actual killer, but participated, 703, the actual instruction, talks about the actual killer
again and again and again. [¶] So the law distinguishes between the actual killer, the
person who commits the deadly act, and someone who facilitates it such as by giving the
tape to the actual killers.”
       “Mr. Kevin Smith cannot suggest to you that bringing the tape which facilitated
the actual killer’s conduct makes DeAngelo Austin the actual killer. He’s not. So his
liability and his conduct must be judged by the instruction 703 . . . .” “Again, when
Kevin Smith, if he tries it again, if he gets up here again and says you can find the special
circumstance to be true against DeAngelo Austin because he provided the tape, you must
shake your head and say, No, you’re wrong about that. We paid attention to these
instructions. He was not the actual killer.” Austin’s trial counsel conceded that Austin
“was a major participant in the crime. Of course he was. It was his idea.” But he argued
at length that Austin did not act with reckless indifference.
       The prosecutor’s closing argument returned to his contention that CALCRIM No.
730 applied to Austin because “he handed over the tape, which was a lethal instrument
and that’s good. [¶] But in reality, he did so much more.” “Tape does not ordinarily kill
people . . . but in this case . . . the tape did kill.” “This wasn’t the simple let’s just put a
piece of tape on someone’s mouth and we’re done. They taped it around and around and
around. Feet. Mouth. Nose. Head. And this tape was, in fact, lethal. [¶] The
                                                   10
defendant did an act that caused the death of another person either by handing over the
tape [to] who used the tape or by taping it himself. How else did his DNA get on the
     5
feet?[ ] Do you think that the tape around the legs on the tan pants was the first spot that
Mr. Kumra was taped? Or would it have been on his mouth? Or his eyes? Or his hands?
[¶] The only explanation could be it just so happened the first piece of tape that they used
was on that front surface. Picture a round tape roll, that little bit. What’s that
circumference of the circle in that one layer of tape. That would have had to have been
how it got there.” The prosecutor also argued that Austin had acted with reckless
indifference: “Well, in this case, the lethal weapon is not a gun or a knife. It’s tape. He
handed it over.”


                     E. My Disagreement With the Majority Opinion
         I cannot concur in the majority opinion’s analysis of the special circumstance
issue, even though I agree that the trial court prejudicially erred with respect to the
special circumstance, because I disagree with the majority opinion’s conclusion that

5
       This was inaccurate. Austin’s DNA was not found on Mr. Kumra’s “feet.” Some
of the prosecutor’s arguments about Austin’s DNA were reasonable inferences from the
evidence, but others were not. The prosecutor argued that Austin’s DNA was “on that
tape that was used to kill Raveesh Kumra,” which was true only in the sense that Austin’s
DNA was on the tape roll, and tape from the tape roll was used to kill Mr. Kumra. The
prosecutor accurately argued that “Mr. Austin’s DNA is on the tape with Mr. Kumra’s;”
both of the spots where Austin’s DNA was found also possibly had Mr. Kumra’s DNA.
But the prosecutor also claimed that Austin’s DNA was “on three separate spots”
including “the tape on the body,” and that “Mr. Austin’s [DNA] was found on the hand of
Mr. Kumra.” Austin’s DNA was found on only the tape roll and the edge of a piece of
tape on the tan pants. These pants were not on Mr. Kumra, but were instead lying on the
family room floor. There was no evidence that Austin’s DNA was found anywhere on
Mr. Kumra’s body. The prosecutor’s misrepresentations about the DNA evidence were
consistent with his inaccurate opening statement claim that the evidence would show that
there was “duct tape removed from Ravi Kumra’s body that had DNA from DeAngelo
Austin on it.” However, because Austin’s trial counsel did not object to any of these
misrepresentations and Austin does not contend on appeal that the prosecutor engaged in
misconduct by making these remarks, there is no need to address them further.
                                                 11
substantial evidence supported the trial court’s instruction of the jury with CALCRIM
No. 730.
       The majority opinion concludes that there was sufficient evidence presented at
trial to support an actual killer theory on the special circumstance because, based on
reasonable inferences, the jury could have concluded beyond a reasonable doubt that
“Austin himself placed tape on [Mr. Kumra’s] face, resulting in [Mr. Kumra’s]
asphyxiation.” (Maj. opn., ante, at p. 22.) The majority opinion reasons that “DNA
evidence suggested” that Austin “participated in taping” Mr. Kumra. (Maj. opn., ante, at
p. 22.) Yet no evidence that the majority opinion identifies could support a finding
beyond a reasonable doubt that Austin himself placed the tape over Mr. Kumra’s mouth.
       I agree with the majority opinion that the evidence demonstrated that Austin
“personally handled the roll of duct tape,” that he testified that he put on gloves after
doing so, and that no evidence was presented concerning any DNA found on the tape on
Mr. Kumra’s mouth. (Maj. opn., ante, at p. 22.) I do not agree that reasonable inferences
based on these facts may support a finding beyond a reasonable doubt that Austin put the
tape on Mr. Kumra’s mouth. The majority opinion reaches this conclusion by stacking a
series of inferences. One, since there was no evidence presented at trial that perpetrator
DNA was found on the tape on Mr. Kumra’s mouth, there must not have been any DNA
on that tape. Two, since there was no DNA on that tape, whoever put that tape on Mr.
Kumra’s mouth wore gloves. Three, because Austin testified he wore gloves, he was
present in the kitchen before Mr. Kumra was taped, he was the planner of the robbery,
and Mrs. Kumra’s eyes were covered so that she could not see who placed tape on Mr.
Kumra’s mouth, a jury could reasonably conclude beyond a reasonable doubt that Austin
placed the tape on Mr. Kumra’s mouth.
       Substantial evidence is “evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
                                                 12
“ ‘[A] reasonable inference . . . “may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A
finding of fact must be an inference drawn from evidence rather than . . . a
mere speculation as to probabilities without evidence.” [Citation.]’ ” (People v.
Davis (2013) 57 Cal.4th 353, 360.)
       The prosecution’s failure to prove that any perpetrator’s DNA was on the tape
over Mr. Kumra’s mouth coupled with Austin’s (and his coperpetrators’) use of gloves
plus the absence of any other evidence that Austin, rather than one of his coperpetrators,
placed tape on Mr. Kumra’s mouth, is an evidentiary void, not a solid and credible basis
for a reasonable inference. It is true, of course, that the evidence was not inconsistent
with the possibility that Austin was the person who put the tape over Mr. Kumra’s mouth,
but that is merely a basis for speculation. A reasonable inference cannot support a
finding beyond a reasonable doubt when it is based on the nonexistence of evidence,
rather than the existence of evidence. For a reasonable inference to support a finding
beyond a reasonable doubt, the evidence upon which the inference is based must be
“solid” and “credible,” not mere speculation. Here, the majority opinion draws
inferences that are based on speculation, not evidence. As I explain below, I would find
insufficient evidence to support an actual killer theory.


                                      F. My Analysis
             1. CALCRIM No. 730: Instruction on Actual Killer Theory
       Austin claims that the trial court prejudicially erred by instructing the jury on the
actual killer theory with CALCRIM No. 730 without including CALCRIM No. 240,
which defines causation, because CALCRIM No. 730 by itself permitted the prosecutor
to argue a legally invalid theory—that Austin’s conduct in handing the duct tape to others
was alone sufficient to make him the actual killer. He contends: “CALCRIM 730 was
susceptible to the prosecutor’s argument because the trial court failed to accompany it
                                                 13
with instruction on causation, (CALCRIM 240), so that the jury was not informed that an
act causes death if death ‘is the direct, natural, and probable consequence of the act.’ As
a result the jury was not equipped with the guidance necessary to determine the truth of
the special circumstances enhancement provided by CALCRIM 730.” Austin contends
that this was “classic instructional error on a legally invalid theory . . . .” He argues that
this error was prejudicial because “[t]he foreseeability of the death that occurred was a
key issue in this case” and “the prosecutor argued an invalid legal theory” when he told
the jury that the fact that Austin “gave the duct tape” was sufficient to establish that he
caused Mr. Kumra’s death. Austin asserts that there was insufficient evidence to support
the actual killer theory.
       The Attorney General contends that the prosecutor’s theory that Austin was the
actual killer based on his act of handing the tape to another was not invalid. He argues
that this act could “properly” be found to have “proximately caused the death because
there was no superseding or intervening cause of death.” Even if the actual killer theory
argued by the prosecutor was invalid on the facts of this case, the Attorney General
argues that any error was harmless because the same fact—Austin handing the duct tape
to his accomplices—necessarily established reckless indifference. He also argues that the
actual killer theory was at worst a factually inadequate theory rather than a legally
inadequate theory.
       Austin’s attack on the trial court’s instructions proceeds in part on an invalid
premise—that the trial court failed to give CALCRIM No. 240 or its equivalent in
                                                        6
connection with the special circumstance instruction. The court did instruct with the
6
        The California Supreme Court has declined to decide whether the term “actual
killer” should be defined and coupled with a causation instruction in connection with a
special circumstance. (People v. Covarrubias (2016) 1 Cal.5th 838, 932 (Covarrubias).)
In that case, the standard instruction used the words “defendant actually killed a human
being.” (CALJIC No. 8.80.1.) The court held that any error was harmless under People
v. Watson (1956) 46 Cal.2d 818 (Watson). (Covarrubias, at p. 932.)

                                                  14
precise content of CALCRIM No. 240 as part of the court’s instructions on first degree
               7
felony murder. Austin does not claim that the court’s instructions would in any way
have suggested to the jury that the causation instruction applied only to felony murder but
                                8
not to the special circumstance. And he expressly disclaims that he is making any claim
of prosecutorial misconduct on appeal. (See fn. 5, ante.) What remains is his argument
that the trial court erred in giving CALCRIM No. 730 because the evidence was
insufficient to support instruction on the actual killer theory and this instruction permitted
the jury to embrace the prosecutor’s legally invalid theory that Austin could be found to
have been the actual killer based solely on his act of handing the duct tape roll to one of
his confederates.
                   a. Error in Instructing Jury on Actual Killer Theory
       Section 190.2, subdivision (b) does not define “actual killer.” (§ 190.2, subd. (b).)
CALCRIM No. 730, the pattern instruction that the trial court utilized, does not use the
words “actual killer.” Instead, CALCRIM No. 730 substitutes for “actual killer” the
phrase “[t]he defendant did an act that caused the death of another person.” The
causation instruction given to the jury, which was identical to CALCRIM No. 240,
defined what is meant by “act causes death.” “An act causes death if the death is the

7
         CALCRIM No. 240 is a general instruction on causation: “An act [or omission]
causes (injury/ <insert other description>) if the (injury/ <insert other description>) is the
direct, natural, and probable consequence of the act [or omission] and the (injury/ <insert
other description>) would not have happened without the act [or omission]. A natural
and probable consequence is one that a reasonable person would know is likely to happen
if nothing unusual intervenes. In deciding whether a consequence is natural and
probable, consider all the circumstances established by the evidence. [¶] <Give if
multiple potential causes.> [¶] [There may be more than one cause of (injury/ <insert
other description>). An act [or omission] causes (injury/ <insert other description>), only
if it is a substantial factor in causing the (injury/ <insert other description>). A
substantial factor is more than a trivial or remote factor. However, it does not have to be
the only factor that causes the (injury/ <insert other description>).]” (CALCRIM No.
240.)
8
         The Attorney General also fails to observe that the trial court actually instructed
the jury with precisely the content of CALCRIM No. 240.
                                                 15
direct natural and probable consequence of the act and the death would not have
happened without the act.” Austin claims that the trial court’s instruction of the jury with
CALCRIM No. 730 was erroneous because substantial evidence did not support the
actual killer theory and, alternatively, the court should have used the phrase “actually
killed” instead of the phrase “did an act that caused the death of another person.”
       Because there was not substantial evidence that Austin did any “act” of which the
“direct natural and probable consequence” was Mr. Kumra’s death within the meaning of
section 190.2, subdivision (b), it is not necessary in this case to address Austin’s claim
that CALCRIM No. 730’s language is erroneous. It was undisputed that Mr. Kumra’s
death was caused by the tape over his mouth: the direct consequence of the tape over his
mouth was his death. No direct or circumstantial evidence was presented that Austin
himself put the tape over Mr. Kumra’s mouth or told anyone to do so. While the bringing
of the duct tape into the Kumra home was part of the complete chain of events that led to
Mr. Kumra’s death, the same could be said for the decision to rob the Kumra home. The
special circumstance is not intended to apply to all those who commit felony murder.
(Enmund v. Florida (1982) 458 U.S. 782, 797 [“the death penalty . . . is an excessive
penalty for the robber who, as such, does not take human life.”].) The evidence in this
case simply could not support a finding that Mr. Kumra’s death was the “direct natural
and probable consequence” of Austin’s act of handing the duct tape to one of his
compatriots.
       Nor was there any other evidence that Mr. Kumra’s death was the “direct natural
and probable consequence” of any of Austin’s other acts or a combination of those acts
and the handing over of the duct tape. The evidence demonstrated that Austin planned
the robbery, selected his compatriots, ensured that duct tape was brought into the Kumra
home, knowing that his compatriots would use the duct tape to bind Mr. Kumra,
including covering his mouth with duct tape, and was present when Mr. Kumra was
initially restrained and when he was assaulted. However, there was no evidence that
                                                 16
Austin applied duct tape to Mr. Kumra’s mouth or directed anyone to do so. The absence
of such evidence eliminated the possibility that the actual killer theory could properly be
applied to Austin under CALCRIM No. 730 and the causation instruction as given to the
jury.
        The Attorney General insists that the actual killer theory was supported by the
evidence because the jury could have concluded that Austin “proximately caused the
death.” He relies on People v. Pock (1993) 19 Cal.App.4th 1263 (Pock). In Pock, the
defendant and his compatriots carried guns during a series of home invasion robberies,
and the defendant repeatedly threatened to shoot and kill the victims. (Id. at pp. 1267-
1270.) During one of the robberies, the defendant shot the victim multiple times, and one
of his compatriots also shot the same victim, who died. (Id. at p. 1270.) There was
evidence that one of the defendant’s shots, a wound to the chest through the heart, was
the fatal wound, but there was also evidence that all of the wounds contributed to the
victim’s death. (Id. at p. 1271.) The prosecution’s theory was that the defendant was the
actual killer even if his bullet was not the fatal one. (Id. at p. 1272.)
        The jury in Pock was instructed on the actual killer theory and told: “ ‘The term
actual killer is defined as follows: Any person whose conduct proximately causes the
death of another is an actual killer.’ . . . ‘There may be more than one proximate cause of
the crime of murder. When the conduct of two or more persons contributes concurrently
as a proximate cause of the death the conduct of each is a proximate cause of the murder
if that conduct was also a substantial factor contributing to the result. A cause is
concurrent if it was operative at the moment of the murder and acted with another cause
to produce the death. [¶] If you find that the defendant’s conduct was a proximate cause
of death to another person, then it is no defense that the conduct of some other person
contributed to the death.’ ” (Pock, supra, 19 Cal.App.4th at pp. 1272-1273.) On appeal,
the defendant contended that the trial court had erred in giving this instruction. (Id. at pp.
1271-1272.) The Second District Court of Appeal concluded that “given the unique facts
                                                  17
present” in the case, the instruction “adequately informed the jury of the applicable law
on liability with respect to a special circumstance finding.” (Id. at p. 1274.) It also found
that any error was harmless “under any standard” because the evidence established that
the defendant shot the victim at least twice. (Id. at p. 1277.)
       It is difficult to understand what proposition the Attorney General believes Pock
stands for that is relevant to this case. The defendant in Pock, unlike Austin, personally
inflicted a gunshot wound on the victim that was either the cause of death alone or a
contributing cause of the death in combination with other gunshot wounds. The Second
District could have therefore considered it appropriate for the trial court to have
instructed the jury on multiple concurrent causes. This case is not remotely similar.
Austin did not inflict a fatal wound or a potentially fatal wound that, in combination with
other wounds, caused Mr. Kumra’s death. This case did not involve the “unique facts” in
Pock that brought into play the law concerning multiple concurrent causes. While the
Attorney General seeks to rely on various snippets from Pock, that language is dicta and
should be disregarded.
       The Attorney General’s reliance on People v. Mejia (2012) 211 Cal.App.4th 586
(Mejia) is also misplaced because Mejia did not concern an actual killer theory of liability
for a felony-murder special circumstance. The special circumstance in Mejia was the
gang-murder special circumstance (§ 190.2, subd. (a)(22)), which explicitly requires that
“[t]he defendant intentionally killed the victim” and therefore is not subject to section
190.2, subdivision (b), which sets forth the actual killer requirement and applies only
where the special circumstance does not require “intent to kill.” (Mejia, at p. 612.) The
Attorney General’s other citations are equally inapt. People v. Harris (1975) 52
Cal.App.3d 419 was a vehicular manslaughter case that did not involve any special
circumstance and therefore said nothing about the meaning of “actual killer.” (Id. at p.
426.) People v. Armitage (1987) 194 Cal.App.3d 405 was a felony drunk boating with
death case that also did not involve any special circumstance. (Id. at pp. 409-410.)
                                                 18
People v. Fiu (2008) 165 Cal.App.4th 360 was a second degree murder case that did not
involve any special circumstance. (Id. at p. 367.)
       “It is error to give an instruction which, while correctly stating a principle of law,
has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116,
1129 (Guiton).) That is precisely what happened here. The trial court erred by
instructing the jury on the actual killer theory because that theory was not supported by
substantial evidence. The next question is whether this error was prejudicial.
                                         b. Prejudice
       The determination of whether Austin was prejudiced by the trial court’s error turns
on whether this error resulted in the presentation to the jury of a legally inadequate theory
or only in the presentation to the jury of a factually inadequate theory. The resolution of
this question is critical because presentation of a legally inadequate theory to the jury “is
subject to the rule generally requiring reversal,” while presentation of a factually
inadequate theory to the jury usually “does not require reversal if at least one valid theory
remains.” (Guiton, supra, 4 Cal.4th at p. 1128.) What is difficult is distinguishing
between the two types of inadequate theories.
       There are “two types of cases involving insufficient evidence: (a) those in which
‘a particular theory of conviction . . . is contrary to law,’ or, phrased slightly differently,
cases involving a ‘legally inadequate theory’; and (b) those in which the jury has merely
been ‘left the option of relying upon a factually inadequate theory,’ or, also phrased
slightly differently, cases in which there was an ‘insufficiency of proof.’
[Citation.] . . . [A legally] inadequate theory ‘fails to come within the statutory definition
of the crime.’ ” (Guiton, supra, 4 Cal.4th at p. 1128.) “If the inadequacy of proof is
purely factual, of a kind the jury is fully equipped to detect, reversal is not required
whenever a valid ground for the verdict remains, absent an affirmative indication in the
record that the verdict actually did rest on the inadequate ground. But if the inadequacy
is legal, not merely factual, that is, when the facts do not state a crime under the
                                                   19
                                9
applicable statute, as in Green[ ], the Green rule requiring reversal applies, absent a basis
in the record to find that the verdict was actually based on a valid ground.” (Guiton, at p.
1129.) “In determining whether a legally inadequate theory was conveyed to the jury
here, we must ask whether there is a ‘ “reasonable likelihood” ’ that the jury understood
[the actual killer] theory in a legally impermissible manner. [Citations.] In doing so, we
consider the instructions provided to the jury and counsel’s argument to the jury.
[Citation.]” (People v. Canizales (2019) 7 Cal.5th 591, 613 (Canizales).)
       Our determination as to whether the actual killer theory presented to the jury was
legally inadequate is informed by an examination of prior cases in which courts have
considered whether a theory was legally inadequate. In Green, the California Supreme
Court held that a legally inadequate theory was conveyed to the jury. (Green, supra, 27
Cal.3d at pp. 67-70.) The trial court’s instructions concerning the asportation element of
kidnapping stated that the victim had to be moved “ ‘a substantial distance, that is, a
distance more than slight or trivial,’ ” but the instructions gave no “further guidance” as to
what distance would be sufficient. The prosecutor argued that 90 feet was a substantial
distance. (Id. at pp. 68-69.) The California Supreme Court held that 90 feet was
inadequate as a matter of law to constitute the required substantial distance. (Id. at p. 68.)
Although there were other theories presented to the jury to support the asportation
element that were based on legally adequate distances, the California Supreme Court held
that reversal was required because the record did not reflect which theory the jury had
relied on. (Id. at pp. 68-70.) The court explained that “[t]he instructions permitted the
jury to [rely on the 90-foot movement]; and the district attorney expressly urged such a
verdict in his argument . . . .” (Id. at p. 71; accord People v. Morgan (2007) 42 Cal.4th
593, 612-613 [similar case involving “ ‘substantial distance’ ” instruction and prosecutor’s
argument that 37 feet was enough].) Thus, the California Supreme Court held in Green


9
       People v. Green (1980) 27 Cal.3d 1 (Green).
                                                 20
that the error was a legally inadequate theory because the instructions “permitted the
jury” to find that a 90-foot movement was sufficient to support a “substantial distance”
finding, and the prosecutor urged them to do exactly that even though a 90-foot
movement could not lawfully support such a finding.
       In Griffin v. United States (1991) 502 U.S. 46 (Griffin), the indictment alleged, as
to a single conspiracy count, that the object of the conspiracy was both to defraud the IRS
and to defraud the DEA. There was no evidence at trial connecting the defendant to a
conspiracy to defraud the DEA. (Id. at p. 48.) Nevertheless, the trial court’s instructions
“permit[ted]” the jury to convict the defendant of conspiracy “if it found her to have
participated in either one of the two objects of the conspiracy.” (Ibid.) The opinion in
Griffin did not indicate that the prosecution had in any way argued to the jury that it
should convict the defendant based on the defrauding-the-DEA theory of the conspiracy.
The jury found the defendant guilty of this conspiracy count, and she challenged the
conviction on due process grounds, arguing that a legally invalid theory had been
presented to the jury. (Id. at pp. 47-48.)
       The United States Supreme Court held that the trial court’s error in instructing on
the DEA theory was not a legally inadequate theory but merely a factually inadequate
theory. (Griffin, supra, 502 U.S. at pp. 59-60.) “Jurors are not generally equipped to
determine whether a particular theory of conviction submitted to them is contrary to
law—whether, for example, the action in question is protected by the Constitution, is
time barred, or fails to come within the statutory definition of the crime. When,
therefore, jurors have been left the option of relying upon a legally inadequate theory,
there is no reason to think that their own intelligence and expertise will save them from
that error. Quite the opposite is true, however, when they have been left the option of
relying upon a factually inadequate theory, since jurors are well equipped to analyze the
evidence . . . .” (Id. at p. 59.) The lack of evidence to support the DEA theory was
merely factual, not legal, so the error did not violate the defendant’s due process rights
                                                 21
because there was sufficient evidence to support the IRS theory. (Id. at pp. 59-60.) The
takeaway from Griffin is that a trial court error in instructing on a theory for which there
is a lack of evidence is not by itself instruction on a legally inadequate theory. One must
look at whether the jurors were “equipped” to discern the inadequacy without guidance.
       Guiton was a case in which the defendant was charged in a single count with
selling or transporting cocaine. (Guiton, supra, 4 Cal.4th at p. 1119.) The selling theory
was not supported by substantial evidence. The jury was instructed on both theories.
“Although the district attorney briefly argued to the jury that defendant was guilty of
selling cocaine, he concentrated on the transportation theory.” (Id. at p. 1131, fn.
omitted.) The jury returned a guilty verdict on this count. (Id. at p. 1120.) The Court of
Appeal found that reversal was required under Green. The California Supreme Court
granted review and disagreed. (Guiton, at pp. 1120-1121.)
       Although the court noted that Griffin was “not binding on this court,” it
distinguished between cases governed by Green and cases governed by Griffin and
harmonized the two rules. (Guiton, supra, 4 Cal.4th at pp. 1121-1126.) “If the
inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect,
reversal is not required whenever a valid ground for the verdict remains, absent an
affirmative indication in the record that the verdict actually did rest on the inadequate
ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not
state a crime under the applicable statute, as in Green, the Green rule requiring reversal
applies, absent a basis in the record to find that the verdict was actually based on a valid
ground.” (Guiton, at p. 1129.) Because the jury was “as well equipped as any court” to
discern the absence of evidence to support the selling theory, the error in Guiton was
deemed a factually inadequate theory rather than a legally inadequate theory, and
therefore reversal was not required. (Id. at pp. 1130-1131.) The court noted that reversal
might be required even in a case covered by Griffin. “We may, for example, hypothesize
a case in which the district attorney stressed only the invalid ground in the jury argument,
                                                 22
and the jury asked the court questions during deliberations directed solely to the invalid
ground. In that case, we might well find prejudice. The prejudice would not be assumed,
but affirmatively demonstrated.” (Guiton, at p. 1129.) What Guiton teaches us is that the
mere fact that the prosecutor argued for the invalid theory does not take a case out of the
Griffin paradigm. If the jury was “as well equipped as any court” to discern the
inadequacy, the inadequacy is factual, not legal.
       In Canizales, the defendants were charged with two counts of attempted murder,
which requires a specific intent to kill. (Canizales, supra, 7 Cal.5th at p. 602.) These
charges arose from a shooting during which the defendants targeted Pride. Bolden and
Pride were together at the time of the shooting. Neither of them was hit by any of the
shots, but a woman was fatally injured by one of the shots. (Id. at pp. 599-600.) The trial
court gave a “kill zone” instruction, which provided “an additional, alternative ground by
which to prove the requisite intent to kill” and permitted the jury to find that the
defendants had the specific intent to kill if they “intended to kill everyone within the ‘kill
zone.’ ” The instructions defined “kill zone” as “a particular zone of harm.” (Id. at pp.
597, 601, fn. 3, 603, 610.) “Beyond its reference to a ‘particular zone of harm,’ the
instruction provided no further definition of the term ‘kill zone.’ ” (Id. at p. 613.)
Because the evidence “was not sufficient to support a reasonable inference that
defendants intended to create a zone of fatal harm around a primary target,” the trial
court’s “ ‘kill zone’ ” instruction was not supported by substantial evidence. (Id. at p.
610.) Nevertheless, the prosecutor told the jury that the kill zone theory applied because
“they’re shooting at someone and people are within the zone that they can get killed” or
“within the zone of fire.” (Id. at p. 601, italics added.)
       The issue before the California Supreme Court was whether the trial court had
erred in instructing on the kill zone theory and whether that error was prejudicial as to the
count charging attempted murder of Bolden. (Canizales, supra, 7 Cal.5th at pp. 597,
609.) The court was “troubl[ed]” by the “potential for misapplication” of the kill zone
                                                  23
theory. (Id. at p. 607.) It pointed out that “[t]he use or attempted use of force that
merely endangered everyone in the area is insufficient to support a kill zone instruction.”
(Id. at p. 608.) Hence, the prosecutor’s argument to the jury under the kill zone theory
was inaccurate. The California Supreme Court stopped short of finding that the standard
kill zone instruction given by the trial court did not correctly describe the kill zone
theory, but it did hold that “the standard instruction should be revised to better describe
the contours and limits of the kill zone theory.” (Id. at p. 609.)
       The prejudice issue turned on whether the court had instructed on a factually
inadequate theory or a legally inadequate theory. The California Supreme Court
described how this determination should be made: “In determining whether a legally
inadequate theory was conveyed to the jury here, we must ask whether there is a
‘ “reasonable likelihood” ’ that the jury understood the kill zone theory in a legally
impermissible manner. [Citations.] In doing so, we consider the instructions provided to
the jury and counsels’ argument to the jury.” (Canizales, supra, 7 Cal.5th at p. 613.) The
court concluded that there was a reasonable likelihood that a legally inadequate theory
had been conveyed to the jury. “The court’s error in instructing on the factually
unsupported kill zone theory, combined with the lack of any clear definition of the theory
in the jury instruction as well as the prosecutor’s misleading argument, could reasonably
have led the jury to believe that it could find that defendants intended to kill Bolden
based on a legally inaccurate version of the kill zone theory—that is, that defendants
could be found guilty of the attempted murder of Bolden if [the shooter] shot at Pride
knowing there was a substantial danger he would also hit Bolden.” (Id. at p. 614.)
Consequently, the error was subject to the Green standard of review rather than the
Griffin standard of review. (Canizales, at p. 615.)
       The most recent California Supreme Court case involving what the court now calls
“alternative-theory error” was the court’s recent decision in People v. Aledamat (2019) 8
Cal.5th 1 (Aledamat). (Id. at p. 9.) In Aledamat, the trial court had instructed the jury on
                                                 24
two theories under which it could find the box cutter used in an assault to be a deadly
weapon. One theory was that the box cutter was an “inherently” deadly weapon. The
other theory was that the box cutter had been “used” as a deadly weapon. (Id. at pp. 13-
14.) The trial court’s instruction did not define “inherently,” which permitted the jury to
consider the prosecution’s theory that the box cutter was an “inherently” deadly weapon.
That theory was legally invalid: a box cutter is not, as a matter of law, an inherently
deadly weapon because its ordinary use is not as a weapon. (Id. at p. 14.) The California
Supreme Court confirmed that the appropriate standard of harmless error review where
there is “alternative-theory error” in presenting a legally invalid theory to the jury is
harmless error review under Chapman v. California (1967) 386 U.S. 18 (Chapman). The
Chapman standard of review requires “the beneficiary of a constitutional error [(the
Attorney General)] to prove beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” (Id. at p. 24.)
       The correct standard of harmless error review in this case is Chapman because the
trial court’s error in this case, like the errors in Canizales and Aledamat, was the
presentation of a legally invalid theory to the jury. Here, the court instructed on a
factually unsupported actual killer theory that lacked a clear definition of the nature of
the connection between Austin’s act and Mr. Kumra’s death that would be sufficient for a
true finding under that theory. And the prosecutor repeatedly argued the legally invalid
theory that the act of “handing over” a “lethal instrument” to others was sufficient for the
special circumstance to be found true under the actual killer theory, and he urged the jury
to base its finding on the special circumstance as to Austin on this theory. “[Austin] gave
the duct tape which was the instrumentality of death.” “[H]e handed over the tape, which
was a lethal instrument . . . .” The trial court’s indefinite instructions and the prosecutor’s
legally inaccurate arguments necessitate the conclusion that there was a reasonable
likelihood that the jury was led to believe that Austin’s act of providing the
“instrumentality of death” was “an act that caused the death of another person” and that
                                                  25
Kumra’s “death [was] the direct natural and probable consequence of the act and the
death would not have happened without the act.” The question then is whether the
Attorney General has met his burden of proving beyond a reasonable doubt that the jury
relied solely on the reckless indifference theory in finding the special circumstance true.
       The Attorney General contends that any error was harmless because “[a]ny juror
who concluded that appellant gave the tape to an accomplice would necessarily have
found that appellant supplied the lethal weapon and that it was used for the purpose for
which it was intended against a resisting victim,” which, in his view, would necessarily
establish that Austin was “recklessly indifferent to the risk of death.”
       “Reckless indifference to human life ‘requires the defendant be “subjectively
aware that his or her participation in the felony involved a grave risk of death.” ’ ”
(People v. Banks (2015) 61 Cal.4th 788, 807, italics added.) “Awareness of no more than
the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly
creating a ‘grave risk of death’ satisfies the constitutional minimum.” (Id. at p. 808.)
Reckless indifference to human life “encompasses a willingness to kill (or to assist
another in killing) to achieve a distinct aim, even if the defendant does not specifically
desire that death as the outcome of his actions.” (People v. Clark (2016) 63 Cal.4th 522,
617 (Clark).) It is not enough that the defendant “ ‘simply had awareness [his]
confederates were armed and [that] armed robberies carried a risk of death . . . [to
establish] the requisite reckless indifference to human life.’ ” (Id. at p. 618.)
       In Clark, the California Supreme Court identified five factors that “provide
insight” in evaluating “the magnitude of the objective risk of lethal violence and a
defendant’s subjective awareness of that risk” in making a reckless indifference
determination. (Clark, supra, 63 Cal.4th at p. 623.) One factor is the defendant’s use of
a lethal weapon or knowledge that lethal weapons will be used in the felony. A second
factor is whether the defendant was physically present during the felony and had the
opportunity to restrain his compatriots or offer aid to a victim. A third factor is the
                                                  26
duration of felony, since a longer duration increases the risk that the victims will be
harmed. A fourth factor is whether the defendant knew that his compatriots were likely
to kill. Finally, the fifth factor is whether the defendant took steps to minimize the risks
of violence during the felony. (Id. at pp. 618-623.)
       The simple fact that Austin handed the duct tape to his accomplices does not by
itself establish that he subjectively acted with awareness of a grave risk of death. The
prospect that duct tape may be used in a robbery does not ordinarily raise a grave risk of
death. Thus, I cannot credit the Attorney General’s claim that the presentation of the
actual killer theory to the jury was harmless because any reliance by the jury on Austin’s
simple act of handing duct tape to a compatriot would necessarily establish reckless
indifference.
       Nor does the record as a whole persuade me beyond a reasonable doubt that the
jury necessarily relied solely on the reckless indifference theory. Duct tape is not
ordinarily considered a lethal weapon, and Austin had planned a robbery that did not
involve the use of any lethal weapons. Austin was present during the robbery, which was
lengthy, though it was disputed whether he was present when Mr. Kumra was taped up.
No evidence was presented that Austin was aware that his compatriots were likely to kill.
       As a whole, the record does not demonstrate beyond a reasonable doubt that the
jury necessarily concluded that Austin was subjectively aware of the objective risk of
lethal violence. While the prosecutor argued both the actual killer theory and the reckless
indifference theory, the reckless indifference theory was based on a balancing of
numerous factors, some of which depended on disputed evidence. The jury could have
believed Austin’s testimony and still found the special circumstance true on the legally
erroneous actual killer theory even though it entertained a reasonable doubt about
whether Austin had acted with reckless indifference to human life.
       Due to the error in presenting the actual killer theory to the jury, the special
circumstance finding cannot be upheld. The question of whether it may be retried
                                                 27
depends on the merit of Austin’s claim that there was insufficient evidence to support the
reckless indifference theory, which I turn to next.
                    2. Substantial Evidence of Reckless Indifference
       The special circumstance may be found true even if the defendant was not the
actual killer and did not harbor the intent to kill if the defendant was a major participant
in the underlying felony and acted with “reckless indifference to human life” during his
participation in the underlying felony. (§ 190.2, subd. (d).)
       Austin concedes that he was a major participant in the robbery, but he argues that
there was insufficient evidence that he acted with reckless indifference to human life. He
does not contend that there was any flaw in the jury instructions on the reckless
indifference theory. Indeed, his argument depends on the validity of those instructions.
       As noted above, the factors relevant to determining whether Austin acted with
reckless indifference to human life were disputed and mixed. A rational jury could have
concluded beyond a reasonable doubt that Austin’s actions in planning and carrying out
the robbery demonstrated that he acted with reckless indifference. First, he planned a
home invasion robbery at a time when he expected the Kumras to be home, thereby
increasing the likelihood of a confrontation between the robbers and the Kumras.
Second, when Austin initially encountered Mrs. Kumra during the robbery, he showed no
hesitation in using force against her, inflicting a significant wound to her face, which
demonstrated his willingness to inflict injury. Third, Austin was present throughout the
very lengthy robbery and had the opportunity to restrain his compatriots. He saw that
they had assaulted and were assaulting Mr. Kumra but did nothing to restrain them or
offer aid to Mr. Kumra. The jury reasonably could have concluded that this evidence
supported a finding that Austin was subjectively aware that the actions of himself and his
compatriots objectively posed a grave risk of death to Mr. Kumra. As substantial
evidence supported a finding of reckless indifference, the special circumstance allegation
may be retried.
                                                 28
                                II. Gang Enhancements
       Austin challenges the sufficiency of the evidence to support the primary activities
element of the gang enhancements and claims that the trial court prejudicially erred in
admitting certain evidence related to the gang enhancements.


                                     A. Background
       Austin did not deny that he was a member of ENT, an Oakland gang. ENT
members commonly had “STUBBY” or “ENT” tattoos. When he was arrested a month
after the crimes, Austin had two tattoos: “STUBBY” on one arm and “ENT” on the other
arm. His friend and coparticipant, Drummer, also had two tattoos: one reading “ENT”
and the other reading “MOET,” which stood for money over everything. Austin admitted
that he had founded ENT and had named it ENT to honor three of his dead friends,
Edward Hampton, Nario Jackson, and Martin Flenaugh (who went by the moniker
Taliban). Austin’s coparticipant Garcia was a member of Ghost Town, another Oakland
gang, which had been affiliated with ENT since at least 2010. Ghost Town’s primary
activities were homicides, shootings, robberies, home invasions, carjackings, and
burglaries.
                                                                            10
       Oakland Police Officer Daniel Bruce testified as an expert on ENT.        When Bruce
first started hearing about ENT, ENT had only about a dozen members, including Austin,
                                                        11
Sean Hampton, Martin Flenaugh, and Ronny Flenaugh.           Bruce had made personal
contact with Austin more than 20 times, beginning in 2008, and Austin was almost
always with other ENT associates on those occasions. In 2011 and 2012, a subset of


10
     There were no objections to qualifying Bruce as a gang expert.
11
     Austin’s trial counsel did not object to testimony that these individuals were
members of ENT.

                                               29
ENT using the name “Money Team” consisted of Austin, Sean Hampton, Tyrell Powell,
Gregory Jefferson, and Frederick Manning.
      Although Bruce did not join the Oakland “gang unit” until 2013, after the 2012
                                                                                          12
offenses at issue here, he had been working on ENT cases for several years before that.
He had gained extensive knowledge about ENT from his personal discussions with 20
admitted ENT members, and his experience “work[ing]” “dozens” of crimes “related to
ENT” between 2010 and 2013, more than 50 such crimes in 2013, and “hundreds” since
then. ENT’s “image” “has been one of wealth, high-end luxury vehicles, high-end
clothing, high-end jewelry, and the flashing of large amounts of currency.”
      The following colloquy occurred during the prosecutor’s direct examination of
Bruce without objection: “Q. What in your opinion is ENT’s primary activities? [¶] A.
The primary being at the moment of ENT is committing burglaries and home invasions as
well as robberies and shootings or murders. [¶] Q. And when you say, ‘burglaries,’ are
they specific types? [¶] A. Typically, ENT was known for doing burglaries of Asian and
East Indian homes. [¶] Q. Those would be residential burglaries. Correct? [¶] A.
Correct.”
      Bruce testified about “ENT videos” that had been found on YouTube and referred
to ENT, large amounts of money, and duct tape. Bruce testified that, “based off all the
investigations I’ve done where the ENT gang was the primary,” it was his “opinion” that
ENT had “engaged in a pattern of criminal activity.” When asked to narrow his answer
to ENT’s activities “prior to 2013,” he expressed the same opinion. He also expressed
the opinion that Austin was a member of “the ENT criminal street gang” at the time of
the November 2012 offenses. Bruce based this opinion on his “last six years” of

12
       During voir dire, Bruce testified that he was involved in a 2013 investigation of
ENT. Austin’s trial counsel’s relevance objection to this voir dire testimony was
overruled. Bruce testified without objection about things he had heard about ENT during
his 2013 wiretap investigation. He also testified without objection that ENT had over a
hundred members and that most of the original dozen members were in custody or dead.
                                               30
experience with ENT and Austin. Although Bruce had never met Drummer, he identified
numerous social media postings associated with Drummer that concerned ENT and its
members. Bruce expressed the opinion, based on these social media posts, that Drummer
was an ENT member.
         Bruce also testified about the two predicate ENT offenses. The June 2012
predicate was a home invasion robbery in concert with the use of a firearm committed by
Ronny Flenaugh. Bruce testified that he was “personally involved” in that case because
he could identify the vehicle in that case as being associated with Ronny Flenaugh. He
testified that Ronny Flenaugh was an ENT member at that time based on “prior contacts”
and his association with other ENT members. Bruce had also investigated Ronny
Flenaugh for other crimes. Bruce also testified about a January 2012 predicate
committed by Jefferson and Powell. This offense was carrying a stolen, unregistered,
concealed, and loaded firearm on the person and in a vehicle. Bruce had personally
participated in the arrest of Jefferson in that case. He opined that Jefferson was an ENT
member at that time based on “prior contacts,” “prior investigations,” and “observations
on the street,” all “done personally” by Bruce. Bruce testified, on a similar basis, that
Powell was also an ENT member at that time.
         The prosecutor asked Bruce, based on a lengthy hypothetical that included most of
the facts of these offenses, whether, in his opinion, these crimes were committed for the
benefit of, at the direction of, or in association with a criminal street gang. Bruce said
that it was his opinion that they were. He gave the same opinion on the specific intent
issue.
         When Austin sought to reopen the case so that he could testify, Austin’s trial
counsel told the court that Austin was “going to admit ENT is a gang.” Austin testified
that none of the proceeds from the robbery went to ENT. He insisted he had committed
the robbery for his own personal gain and so that he could use the proceeds of the
robbery to provide for his family. Austin admitted that he had previously been convicted
                                                 31
of residential burglary twice, including one in which the victim was an “Indian man,” and
felon in possession of a firearm, and that he had been released from prison for those
offenses in August 2012. Austin insisted that all of his crimes were committed for
himself and his family, not ENT. He otherwise supported himself by working as a pimp.
       Austin admitted that he had formed ENT as a memorial for his friends, who he
admitted were “violent criminals.” He claimed: “It wasn’t a gang when I formed it.”
When he “went away” (to prison), “younger people” who “looked up to” him “actually
made it a gang.” Still, he admitted that ENT members committed crimes in 2012,
including possession of firearms, residential burglaries, and shootings. Austin admitted:
“ENT’s a gang. I mean, but ENT’s a gang because based on the younger people make it -
- the younger people that’s younger than me, really make it a gang. But, me, myself, I
didn’t, I didn’t look at it as a gang when it formed. . . . [A]t this point in time, in 2016, I
definitely consider ENT a gang.”
       The trial court instructed the jury on the gang enhancement allegations: “If you
find the defendant guilty in crimes charged in counts one, two, three, four, and five or the
lesser offenses to count three, you must then decide whether for each crime the People
have proved the additional allegation that the defendant committed that crime for the
benefit of, at the direction of, or in association with a criminal street gang. You must
decide whether the People have proved this allegation for each crime and return a
separate finding for each crime. [¶] To prove this allegation, the People must prove
that: [¶] (1) The defendant committed the crime for the benefit of, at the direction of, or
in association with a criminal street gang; and [¶] (2) The defendant intended to assist,
further, or promote criminal conduct by gang members.”
       The trial court’s instructions defined a criminal street gang as an “association, or
group of three or more persons, whether formal or informal, that has a common name or
common sign or symbol that has as one or more of its activities the commission of
residential burglaries, robberies, auto burglaries, assaults with firearms, and murders; and
                                                  32
[¶] . . . [w]hose members, whether acting alone or together, engage in or have engaged in
a pattern of criminal gang activity. In order to qualify as a primary activity, the crime
must be one of the group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the gang. [¶] Pattern
of criminal activity used here means the commission of or conviction of any combination
of two or more of the following crimes or two or more occurrences of one or more of the
following crimes: Robbery, carrying a concealed firearm, carrying a loaded firearm,
carjacking, auto burglary. At least one of those crimes was committed after September
6th, 1988; [¶] (3) The most recent crime occurred within three years of one of the earlier
crimes; and [¶] (4) The crimes were committed on separate occasions or were personally
committed by two or more persons. [¶] Crimes that establish a pattern of criminal gang
activity need not be gang related. The People need not prove that the defendant is an
active or current member of the alleged criminal street gang. [¶] If you find the
defendant guilty of a crime in this case, you may consider that crime in deciding whether
one of the group’s primary activities was the commission of that crime and whether a
pattern of criminal gang activity has been proved. You may not find that there was a
pattern of gang activity unless all of you agree that two or more crimes that satisfy these
requirements were committed, but you do not have to all agree on which crimes were
committed.”
       Austin’s trial counsel argued to the jury that it should find the gang allegations not
true because Austin “committed this crime for his own personal benefit and no one
directed him. He wasn’t doing it in association with some kind of gang. . . . He was out
to benefit himself.” He also argued that the prosecution had failed to show that crimes
were ENT’s “primary activity” “rather than an occasional act committed by one or more
persons who happen to be members of a gang.” Austin’s trial counsel argued that the
predicates were “people unconnected to Austin, not even charged in most instances as
gang-related offenses.” The prosecutor argued in rebuttal “that this is the type of crime
                                                 33
that ENT would do. ENT would bring the Ghost Town people to do it. The motive
would be money, nothing but money.” The jury found the gang enhancement allegations
true as to Austin but not true as to Garcia.


                          B. The Majority Opinion’s Approach
       While I agree with the majority opinion that Austin’s challenges to the gang
enhancements should be rejected, my position is that most of Austin’s challenges were
forfeited due to his failure to obtain a ruling on his evidentiary objections from the trial
court. I disagree with the majority opinion’s position that Austin’s “general
confrontation clause objections” were “sufficient to preserve” his evidentiary challenges
for appellate review. (Maj. opn., ante, at p. 52, fn. 39.) I also conclude that Austin’s
substantial evidence challenge to the gang enhancements lacks merit.


                                      C. My Analysis
                            1. Substantial Evidence Challenge
       Austin claims that the gang enhancements cannot be upheld because the record
does not contain substantial evidence that ENT’s “primary activities” at the time of the
2012 offenses were the commission of any of the statutorily enumerated crimes. He
concedes that his own testimony established that ENT members were committing
enumerated crimes at that time, but he claims that this was insufficient to show that these
offenses were ENT’s primary activities.
       A “ ‘criminal street gang’ means 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 of the criminal acts enumerated




                                                 34
                                               13
in . . . subdivision (e)” of section 186.22.        (§ 186.22, subd. (f).) Subdivision (e) lists
many offenses, but the jury instructions in this case limited primary activities to
“residential burglaries, robberies, auto burglaries, assaults with firearms, and murders.”
       As the jury was instructed in this case, it could properly consider “the
circumstances of the present or charged offense[s] in deciding whether the group has as
one of its primary activities the commission of one or more of the statutorily listed
crimes.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) The “primary activities”
must be “one of the group’s ‘chief’ or ‘principal’ occupations” and cannot be merely “the
                                                                          14
occasional commission of those crimes by the group’s members.”                 (Ibid.) “[E]vidence
that the group’s members consistently and repeatedly” committed such crimes is
sufficient to establish the primary activities requirement as is “expert testimony” that the
gang “was primarily engaged” in “statutorily enumerated felonies.” (Id. at p. 324.)
       Bruce testified that he had investigated “dozens” of crimes “related to ENT”
between 2010 and 2013. Bruce was explicitly asked about ENT’s primary activities: “Q.
What in your opinion is ENT’s primary activities? [¶] A. The primary being at the
moment of ENT is committing burglaries and home invasions as well as robberies and
shootings or murders. [¶] Q. And when you say, ‘burglaries,’ are they specific types?
[¶] A. Typically, ENT was known for doing burglaries of Asian and East Indian homes.
[¶] Q. Those would be residential burglaries. Correct? [¶] A. Correct.”




13
       The group’s members also must have engaged in a pattern of criminal activity,
which means two or more so-called “predicate” crimes. (§ 186.22, subds. (f) & (j))
Some of the offenses listed in section 186.22, subdivision (e) cannot be used to establish
the requisite primary activities but only to establish predicate crimes. Those differences
are not at issue here.
14
       The jury in this case was instructed on this requirement: “In order to qualify as a
primary activity, the crime must be one of the group’s chief or principal activities rather
than an occasional act committed by one or more persons who happen to be members of
the gang.”
                                                       35
       Austin highlights the fact that Bruce used the present tense “is” and “at the
moment” in his testimony and argues that Bruce’s testimony therefore could not
constitute substantial evidence of ENT’s primary activities in 2012 but only evidence of
ENT’s primary activities at the time of Bruce’s 2016 trial testimony. While this portion
of Bruce’s testimony was less than clear and might have been vulnerable to attack if it
had stood alone, it was not the sole evidence of ENT’s activities at the time of the 2012
offenses. Bruce also testified that he had investigated “dozens” of ENT crimes between
2010 and 2013, and Austin himself testified that ENT members were “committing
residential burglaries” and shootings in 2011 and 2012. In addition, the prosecution
introduced evidence that ENT member Ronny Flenaugh had committed a home invasion
robbery in concert in June 2012. Furthermore, the jury was permitted to use the current
offenses, a residential burglary and robbery, to support a primary activities finding.
       The jury had before it substantial evidence that ENT’s primary activities were
statutorily enumerated crimes. The jury could have reasonably concluded that the
“dozens” of crimes ENT members committed prior to the current offenses were of the
same type as the burglaries and shootings that Austin admitted ENT gang members were
committing in 2011 and 2012, the residential robbery that the prosecution proved was
committed by an ENT gang member in 2012, and the current offenses of residential
burglary and robbery in 2012. This evidence supported an inference that ENT’s primary
activities had not changed since 2012 and therefore that Bruce’s testimony about ENT’s
primary activities was equally valid as to ENT’s 2012 primary activities as it was as to
ENT’s subsequent primary activities.
       Austin’s reliance on People v. Perez (2004) 118 Cal.App.4th 151 (Perez) is
misplaced. In Perez, the only evidence of the group’s crimes was of a few scattered
offenses, and no expert identified the group’s primary activities at all. (Id. at p. 160.) In
re Alexander L. (2007) 149 Cal.App.4th 605 is also distinguishable. In that case, the
court found that the expert lacked foundation for his testimony about the group’s
                                                 36
activities, which he did not explicitly identify as the group’s primary activities. (Id. at pp.
611-612.) Here, in contrast, Bruce’s long history of investigating ENT’s crimes provided
a solid foundation for his testimony, and he expressly identified statutorily enumerated
crimes as ENT’s primary activities. Moreover, the other evidence of ENT’s activities
corroborated and buttressed Bruce’s testimony. The prosecution did not fail to establish
that ENT was a criminal street gang under section 186.22.
                             2. “Failing to Limit Primary Activities”
       Austin also seems to claim that there was some sort of error in failing to restrict
the time period for ENT’s primary activities so that the jury would not rely on post-crime
primary activities. However, he does not clearly identify this error as a discernable
instructional or evidentiary error or as prosecutorial misconduct. He generally refers to it
only as a “due process” error. He contends that his right to due process was violated by
the prosecution’s introduction of evidence of ENT’s activities after the present offenses.
Since Austin does not claim that he objected on this ground to the admission of evidence
or to the prosecutor’s reliance on such evidence, any contention in that regard was
             15
forfeited.        (Evid. Code, § 353, subd. (a) [objection required to challenge alleged
erroneous admission of evidence]; People v. Bell (1989) 49 Cal.3d 502, 535 [failure to
object to prosecutorial misconduct waives issue].)
                           3. Challenges to the Admission of Evidence
       Austin contends that the trial court erred in numerous respects in connection with
the admission of evidence concerning the gang enhancements. However, these
contentions were forfeited due to his failure to obtain an express ruling on any such
objections in the trial court.

15
       Austin does not appear to argue that the trial court was obligated to give any type
of limiting instruction telling the jury that it could not rely on ENT’s activities after the
present offenses. Such an argument would be unavailing since he failed to request a
limiting instruction. (People v. Sánchez (2016) 63 Cal.4th 411, 460 [no sua sponte duty
to give limiting instruction].)
                                                     37
       “ ‘A party desiring to preserve for appeal a challenge to the admission of evidence
must comply with the provisions of Evidence Code section 353, which precludes reversal
for erroneous admission of evidence unless: “There appears of record an objection to or
a motion to exclude or to strike the evidence that was timely made and so stated to make
clear the specific ground of the objection or motion.” ’ [Citations.] A properly directed
motion in limine may satisfy the requirements of Evidence Code section 353 and preserve
objections for appeal. [Citation.] However, the proponent must secure an express ruling
from the court.” (People v. Ramos (1997) 15 Cal.4th 1133, 1171, italics added.)
       Garcia filed an in limine motion that Austin joined seeking a ruling that the gang
experts should not be permitted to testify to hearsay. This motion explicitly cited
Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Garcia argued that a gang
expert, at that time expected to be Officer Valle, should not be permitted to opine on
Ghost Town’s primary activities or its pattern of criminal activity. He claimed that
Officer Valle lacked a foundation for such testimony because he had no personal
knowledge of the Ghost Town gang. Garcia also argued that Valle should be precluded
from “discussing the hearsay basis of his conclusions,” that any hearsay evidence should
not be admitted for its truth, and that a limiting instruction should be given. Garcia
anticipated that the prosecution would use certified convictions to prove predicates, and
he sought redaction of any gang enhancements shown on those documents as unduly
prejudicial.
       The prosecution filed a trial brief on gang issues. It noted that a pattern may be
established based solely on the current charges if, as here, multiple gang members
committed the current offenses. The prosecution argued that the gang expert could testify
to the facts of a predicate based on police reports.
       At the in limine hearing, Garcia’s trial counsel mentioned to the court his motion
“discuss[ing] gang limitations of experts.” The court responded: “Okay. I have read
that. And I do not intend to make advance rulings with regard to the experts. With
                                                 38
regard to what the experts can rely on, they certainly can rely on hearsay and to, for lack
of a better term, admissible hearsay, when it comes to experts. [¶] We’ve already
discussed the limitations of the Crawford case and how that’s going to affect the gang
expert’s testimony with regard to -- or I shouldn’t say the gang expert’s testimony but the
testimony with regard to the predicates that will be offered. And I’m confident that Mr.
Smith [(the prosecutor)] is well aware of the evidentiary limitations that go along with
Crawford and will act accordingly in proving the predicates.” (Italics added.) Neither
                                                                              16
Austin nor Garcia pressed the court for a ruling on their in limine motion.        The court
subsequently acknowledged, in ruling on an unrelated issue, that police reports about
predicates reviewed by gang experts were barred under Crawford because they were
testimonial hearsay. During Bruce’s direct examination, the court, outside the presence
of the jury, said “I would anticipate that there will be significant cross-examination.”
Austin’s trial counsel responded: “No.” Austin’s trial counsel did not object to any of
Bruce’s testimony or to the admission of the documentary evidence of the predicates on
any of the grounds that Austin now raises on appeal. Austin’s trial counsel’s cross-
examination of Bruce was limited to a discussion of some photographs, most of which
                              17
depicted Eddiebo Rodriguez.
       Austin failed to preserve for appeal any of his claims that the trial court erred in
admitting evidence concerning the gang enhancements. While an in limine motion raised
some of these issues, the court explicitly declined to rule in limine on those issues, and
neither Austin nor Garcia pressed for a ruling or made any subsequent objections to the
admission of any of the evidence that Austin now challenges. Nor could this forfeiture be
considered ineffective assistance of counsel since it appears quite clear that Austin’s trial
counsel made a strategic decision to concede that Austin was a member of a criminal

16
       Although Austin’s trial counsel subsequently made a motion concerning gang
expert testimony, that motion did not relate to any of the issues that he raises on appeal.
17
       Rodriguez was Garcia’s cousin. He died in January 2013.
                                                 39
street gang and to instead challenge the gang enhancement allegations on the ground that
Austin had not intended to benefit ENT but only himself. Indeed, Austin’s trial counsel
told the trial court that Austin would “admit ENT is a gang.” Consequently, review of
Austin’s evidentiary contentions is unwarranted.


                                    III. Conclusion
      I would reverse the judgment as to Austin and remand for possible retrial of the
special circumstance allegation. I agree that the judgment as to Garcia should be
reversed and the matter remanded for resentencing and a Franklin hearing.




                                         ____________________________________
                                         Mihara, Acting P. J.




People v. Garcia – H043870
People v. Austin – H044073

                                               40
41
Trial Court:            Santa Clara County Superior Court,
                        Case No.: C1247403

Trial Judge:            Hon. Ronald I. Toff
Attorney for            Edward James Haggerty
Defendant/Appellant     under appointment by the Court of Appeal
Javier Garcia:

Attorney for            Maribeth Halloran
Defendant/Appellant     under appointment by the Court of Appeal
DeAngelo Austin:

Attorneys for           Xavier Becerra
Plaintiff/Respondent    Attorney General of California
The People:             Gerald A. Engler
                        Chief Assistant Attorney General
                        Jeffrey M. Laurence
                        Senior Assistant Attorney General
                        Catherine A. Rivlin
                        Supervising Deputy Attorney General
                        Claudia Harvey Amaral
                        Deputy Attorney General
                        Allan Yannow
                        Deputy Attorney General




     H043870 - The People v. Garcia
     H044073 - The People v. Austin
