Filed 8/4/16 P. v. Crook CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B265205

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA412380)
         v.

MICHAEL BRYON CROOK,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Richard S. Kemalyan, Judge. Vacated in part, affirmed in part, and remanded.


         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Joseph P. Lee and Jaime
L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.




                               ____________________________________
       A jury found defendant Michael Crook guilty of first degree murder. On appeal,
defendant contends: 1) the photographic lineup shown to one eyewitness was unduly
suggestive and the identification resulting from the lineup and subsequent in-court
identifications violated defendant’s due process rights; 2) the trial court abused its
discretion in excluding a defense argument regarding an unrecorded portion of the
eyewitness’s discussions with police; 3) a jury instruction on eyewitness identification
violated defendant’s right to due process; 4) the trial court erred in instructing the jury
that the People were not required to prove motive, because the gang enhancement
required the jury to make a motive finding; and 5) the prior strike and prior serious felony
enhancements must be vacated because defendant did not admit the prior strike and the
trial court failed to advise defendant of his Boykin/Tahl rights.1 Defendant also requests
that this court review sealed transcripts of in camera trial court proceedings to determine
whether the trial court prejudicially erred in refusing to disclose information regarding a
confidential informant. We vacate defendant’s sentence and remand for retrial of the
prior conviction allegations, and otherwise affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       We summarize the evidence in accordance with the usual rules on appeal.
(People v. Virgil (2011) 51 Cal.4th 1210, 1263.) On the evening of June 2, 2013, Samuel
Burge was shot and killed on a Los Angeles street. Police found a BB gun in Burge’s
pocket. Around the time of the shooting, and near the same intersection, Tyrone Edmond
was standing on a corner, waiting for a ride. Defendant passed Edmond. According to
Edmond, defendant was wearing a blue hat with a red bill, a fitted t-shirt, fitted jeans with
slits on the side, red Vans shoes, and a glove on one hand. Edmond did not know
defendant but had seen him before in the neighborhood. Defendant said “what’s up”
to Edmond and crossed the street. Edmond heard gunshots. He looked in the direction of
the sound. Edmond saw defendant running away from a body on the ground. Defendant
ran to a nearby car wash and got into a parked car. The car drove away. Edmond told

1
       Boykin v. Alabama (1969) 359 U.S. 238, In re Tahl (1969) 1 Cal.3d 122.

                                              2
police at the scene that he saw the shooter get into a black car—a Ford Fusion or
Dodge—driven by a black woman. When interviewed later, Edmond described the
shooter as having tattoos on his face, neck, and arms.
        At the time of shooting, Conrad Sylvestre-Lamb was washing his car at the car
wash. A man he later identified as defendant walked past him and crossed the street.
As defendant passed, the two men made brief eye contact. After defendant crossed the
street, Sylvestre-Lamb heard gunshots. He saw defendant shooting Burge. Defendant
ran back toward the car wash and again made eye contact with Sylvestre-Lamb.
Sylvestre-Lamb told police the shooter had black hair, was wearing black pants, dark
tennis shoes, and a white t-shirt, and had a complexion darker than Sylvestre-Lamb’s
own skin; he later said the shooter was wearing a hat. Sylvestre-Lamb identified
defendant as the shooter from a six-pack photographic lineup, but he acknowledged at
trial that his initial description of the shooter’s complexion was wrong. He explained that
the glasses he was wearing at the time of the shooting were tinted. He recognized
defendant in the photographic lineup based on defendant’s narrow face and a tattoo on his
neck.
        Rosemary Flowers was a co-defendant also charged with murder. She testified at
trial in exchange for a “leniency agreement”; in exchange for truthful testimony she was
to be allowed to plead to a lesser charge. According to Flowers, at the time of the
shooting, she was dating Reginald Shell, a member of the 83 Hoover gang. Flowers was
with her cousin and Shell on the day of the shooting. Flowers was driving a Ford Taurus.
While Flowers, Shell, and the cousin were parked in the general vicinity of the shooting,
another car approached, carrying four people. Defendant was in the back seat of the car.
Flowers had seen defendant before; she knew him as “Mike” or “4 Star.” A woman in
the car yelled that someone had pulled a gun, or “did somebody have heat.” Shell told
Flowers, “let’s go see,” so they drove around, then Shell directed Flowers to park at the
car wash. Shell was on the phone while Flowers and her cousin were drinking and
smoking marijuana. Flowers heard the popping sound of gunshots or firecrackers.
She did not see the shooting. As Flowers began to drive away she almost ran into

                                             3
defendant, who was on foot. Flowers did not see where defendant had come from.
Defendant asked if they could give him a ride. When he got in the car, defendant said,
“I got that,” or “I did it.” Flowers was about to ask him what was going on, but Shell told
her it was not her business. Flowers dropped defendant off. She did not see defendant
with a gun before or after the shooting.
       Cellphone records showed ten telephone calls around the general time of the
shooting between Flowers’s cell phone and a number identified as “Mike” in Flowers’s
phone; the number was associated with defendant’s phone. Flowers asserted Shell must
have made the calls. She denied having additional calls with “Mike” in the days
following the shooting, as reflected in cell phone records. Flowers testified that Shell
used her phone on occasion. She denied putting contact information for “Mike” in her
phone and did not know who had.
       Police arrested Flowers on June 11, 2013. She initially lied to police. Flowers
said she was at the car wash because she was washing and vacuuming her car. She said
someone she did not know ran past her car and down the street. When confronted with
information that police already knew someone had entered her car after the shooting,
Flowers offered details largely consistent with her testimony at trial. When left alone in
the interview room, Flowers talked to herself, making statements such as: “ ‘I have to
clear my name’ ”; “ ‘Let me get you everything you need. You all work with me, I will
work with you’ ”; and “ ‘I don’t know. I will say whatever I can do to get out of this
shit.’ ” At one point she told a detective: “ ‘I will do anything you want, I will wear a
wire. . . . I will take you to the place where these people are at.’ ”
       After the interview, Flowers made several telephone calls from jail; the calls were
recorded. Flowers called Shell. He told her to be quiet and not to get him involved.
She also called her older sister and told her she “knew the person” and had picked him up
by the car wash, but he did not have a gun on him. In a different telephone conversation
with her sister, Flowers said the police were not accusing her of committing the murder,
but she knew the person who did it and she had given him a ride. She also told her sister


                                               4
that when the person got in the car, he said, “I got this.” Flowers told her sister she just
went in the car wash and, “ ‘next thing I know, I see . . . Mike, the person I know.’ ”
       Cell phone and cell phone tower data indicated defendant’s phone was in use in
various sectors serviced by cell phone towers in the area near the shooting, around the
time of the shooting. Text messages recovered from defendant’s account indicated he
sent several messages the day after the shooting in which he said the police were looking
for him for a murder, or suggesting he was going to jail. In one message, defendant
wrote: “I know what I was getting into before I did it but times I wanna hit tears kuz I
may not see you or my kids again.” According to police, when defendant sent these
messages police had not yet identified him as a suspect in the murder. On June 11, after
police had interviewed Flowers, defendant sent text messages again suggesting he was
about to go to jail for life. He also wrote: “As to my facebook, my big homey told me to
deactivate my page ‘cause police can get on there and look at my pics to match the
description.”
       At trial, a gang expert opined defendant was a member of the 94 Hoovers criminal
street gang. He further opined, based on a hypothetical consistent with the facts in the
case, that a murder carried out under the circumstances presented would be committed for
the benefit of the gang. The expert explained the murder would serve to protect the
gang’s territory and intimidate both citizens in the area and rivals.
       Defendant testified at trial. He admitted being a member of the 94 Hoovers
criminal street gang. Defendant testified that on June 2, 2013, Flowers called him several
times because she wanted to buy marijuana from him. Defendant denied speaking with
Shell on the telephone on June 2. He denied being near the intersection where the
shooting occurred. He denied getting into Flowers’s car on June 2. According to
defendant, the day after the shooting, a friend told him police brought up defendant’s
name in connection with the murder. Defendant did not trust the police and did not think
they would believe him. Although at trial he admitted he owned a pair of red shoes that
police had recovered from an apartment where defendant sometimes stayed, he denied
wearing those shoes on June 2. Defendant had previously lied to police and denied the

                                              5
shoes were his. At trial, he denied he was the person visible on surveillance video getting
into Flowers’s car after the shooting. He said he sent the text messages about going to
jail for murder because he had been alerted that police were looking for him in
connection with a murder. He testified the text stating he “knew what he was getting
into” was about getting into life as a gang member, including being framed for murder or
implicated due to mistaken identity. He asserted he was concerned about deleting his
Facebook account because it displayed gang-related pictures.
       The jury found defendant guilty of first degree murder. (Pen. Code, § 187, subd.
(a).)2 It found true the allegation that defendant personally and intentionally discharged a
firearm, causing great bodily injury and death (§ 12022.53, subd. (d)), and the allegation
that the offense was committed 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 (§ 186.22, subd. (b)(1)(C)). As discussed in further
detail below, defendant, through counsel, admitted a prior strike and serious felony
conviction (§§ 667, subds. (b)-(j), 1170.12; § 667, subd. (a)). The trial court sentenced
defendant to a total prison term of 80 years to life.
                                       DISCUSSION
I.     The Trial Did Not Prejudicially Err in Admitting Sylvestre-Lamb’s Pretrial
       and In-Court Identifications of Defendant
       During the investigation of the case, police showed eyewitness Sylvestre-Lamb a
six-pack photographic lineup. Sylvestre-Lamb identified defendant from the lineup and
in person at the preliminary hearing. Before trial, defendant sought to exclude the
identifications, arguing the photographic line-up was unduly suggestive and it tainted the
subsequent in-court identification. Defendant argued the background of his photograph
was darker than the background of the other five photographs in the lineup; he was the
only suspect with a shaved head; and he was the only suspect with a visible tattoo on his
neck. The trial court rejected this argument. Defendant renews the argument on appeal,

2
       All further statutory references are to the Penal Code unless otherwise noted.

                                              6
adding that defendant’s skin tone was lighter than that of the other five individuals.
We find no reversible error.
       “ ‘ “In deciding whether an extrajudicial identification is so unreliable as to violate
a defendant’s right to due process, the court must ascertain (1) ‘whether the identification
procedure was unduly suggestive and unnecessary,’ and, if so, (2) whether the
identification was nevertheless reliable under the totality of the circumstances.
[Citations.]” ’ [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1162.) The court
is to consider factors such as “ ‘ “the opportunity of the witness to view the suspect at the
time of the offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty demonstrated
at the time of the identification, and the lapse of time between the offense and the
identification.” [Citation.] “We review deferentially the trial court’s findings of
historical fact, especially those that turn on credibility determinations, but we
independently review the trial court’s ruling regarding whether, under those facts, a
pretrial identification procedure was unduly suggestive.” [Citation.] “Only if the
challenged identification procedure is unnecessarily suggestive is it necessary to
determine the reliability of the resulting identification.” [Citation.]’ [Citations.]”
(People v. Thomas (2012) 54 Cal.4th 908, 930-931.)
       “A due process violation occurs when a pretrial identification procedure is so
impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable
misidentification. [Citation.] The application of this rule depends on the circumstances
of each case [citation], including whether the suggestiveness made the defendant ‘stand
out’ from the others in the lineup [citation] and whether the identification procedure was
unnecessary [citation].” (People v. Carlos (2006) 138 Cal.App.4th 907, 912.)
       We conclude the photographic lineup was not impermissibly suggestive based on
the differences defendant has identified.3 The six photographs depicted a group of six


3
      We have reviewed the original Exhibit No. 31, which is a color version of the
photographic lineup.

                                              7
African American men, all within a similar age range, with a range of skin tones or
complexions. The six individuals had similar facial expressions. (People v. Carter,
supra, 36 Cal.4th at p. 1163.) They each had two white blocked out portions in the same
position on their faces—between the eyebrows, and just to the right of the right eye.
       As reflected in the photographs, defendant’s skin color was not significantly
lighter than the individuals in positions 1 and 3. Even if defendant’s complexion was
lighter, it was not so much lighter than the surrounding individuals that his photograph
stood out. Defendant’s photograph was the only one depicting an individual with a
shaved head, but one other photograph showed a man with extremely short hair;
moreover, Sylvestre-Lamb indicated he covered the tops of the photographs because the
shooter was wearing a hat. Similarly, while the background in defendant’s photograph
was darker, there was a range of backgrounds overall within the lineup; the background
of defendant’s photograph was only slightly darker than that of photograph 4. (People v.
Johnson (1992) 3 Cal.4th 1183, 1217 [minor differences in facial hair and differences in
background color and image size of photographs did not render lineup impermissibly
suggestive].) Defendant’s visible neck tattoo was partially obscured and the individual
depicted in position 3 appeared to have a dark area on his neck that may have been a
blurred tattoo. Further, Sylvestre-Lamb had not mentioned a neck tattoo, thus this is not
a case in which the presence of an identifying characteristic was unduly suggestive
because it corresponded to the witness’s prior description. Overall, defendant’s
photograph was similar to that of the others in the lineup and the identification procedure
was not unduly suggestive. (People v. Cunningham (2001) 25 Cal.4th 990, 991.)
       Further, even if the photographic lineup was unduly suggestive, we would find
Sylvestre-Lamb’s identification of defendant otherwise reliable under the totality of the
circumstances. (People v. Thomas, supra, 54 Cal.4th at p. 930.) Sylvestre-Lamb saw the
shooter at close proximity before and after the shooting and twice made eye contact with
him. Sylvestre-Lamb also saw the shooter running away from Burge’s body. At the
preliminary hearing, Sylvestre-Lamb testified he was hyper vigilant after defendant
walked past him the first time because he “felt a threat.” He explained his previous

                                             8
description of the shooter as having dark skin was due to the shooter having his hat down
on his face and the position of the sun. He said he did not initially mention the shooter’s
evident tattoos because he had not yet developed a level of trust with the detectives.
He also explained he had just witnessed a crime and did not want to face retaliation.
The identification from the photographic lineup took place less than two weeks after the
shooting. In addition, before Sylvestre-Lamb viewed the lineup, he received the
admonition that the lineup may or may not contain a picture of the person who committed
the crime. Defendant has not shown a substantial likelihood of irreparable
misidentification under the totality of the circumstances in this case. (People v.
Cunningham, supra, 25 Cal.4th at p. 990.)
       Because we conclude the photographic lineup was not unduly suggestive or, even
if it was, that the identification based on that lineup was reliable under the totality of the
circumstances, we reject the argument that an improper photographic lineup
identification tainted Sylvestre-Lamb’s subsequent in-court identifications of defendant.
(People v. Wash (1993) 6 Cal.4th 215, 245.)
       Finally, even if the Sylvestre-Lamb identifications were admitted in error, we
would find the error harmless beyond a reasonable doubt. Sylvestre-Lamb’s
identifications of defendant were not the only evidence against him, or even the only
eyewitness identifications.4 Edmond had seen defendant in the neighborhood before the
shooting and identified him as the man he saw running away from Burge’s body.
Flowers saw defendant immediately before the shooting with other people looking for
someone who had a gun. She then saw him immediately after the shooting, gave him a
ride away from the scene, and heard him say something like, “I got that” or “I did it.”
Information from defendant’s phone placed him near the scene at the time of the

4
       We also note Sylvestre-Lamb’s pre-trial identification of defendant was
challenged by the defense. The jury learned that Sylvestre-Lamb said the shooter’s skin
was darker than his, which was apparently inconsistent with his selection of defendant’s
photograph from the lineup. Sylvestre-Lamb admitted that when the shooter passed him,
the shooter’s head was tilted down and he was wearing a hat. The jury also learned
Sylvestre-Lamb told police the shooter had no visible tattoos.

                                               9
shooting. Defendant’s text messages implicated him in a murder before the police had
even identified him as a suspect. In light of this evidence, we would conclude that even
if in error, the admission of Sylvestre-Lamb’s identifications of defendant was harmless
beyond a reasonable doubt. (People v. Carter, supra, 36 Cal.4th at p. 1164, fn. 23.)
II.    Any Error in the Trial Court’s Ruling Limiting Defense Counsel’s
       Arguments Regarding an Omission From the Recording of Sylvestre-Lamb’s
       Pre-Trial Identification of Defendant Was Harmless
       Defendant sought to introduce evidence that an audio recording made when
detectives showed Sylvestre-Lamb a photographic lineup was stopped after a detective
gave standard pre-lineup admonishments, but before Sylvestre-Lamb made the
identification. The prosecution objected that under Evidence Code section 352, the
evidence would be misleading and confusing. In an Evidence Code section 402 hearing,
defendant offered the testimony of an audio/video recording expert who indicated there
was evidence the recording had been stopped. This conflicted with the testimony of the
detective in charge of the recording who had previously testified the recording was not
stopped during the identification process.
       Defendant sought to use the information to impeach the detective’s testimony and
also as a basis to argue that because it was unknown how long the tape recorder was off,
“there perhaps was some sort of conversation that was had, but we will never know
because that tape recorder was turned off.” The court ruled defense counsel could use the
evidence to impeach the detective’s testimony. But the court indicated defense counsel
could not challenge the detective’s credibility about matters on which the detective did
not testify. The court also appeared to reject any defense attempt to argue a conversation
may have occurred when the recording was stopped. The court concluded there was no
evidentiary basis for such arguments. Following the court’s ruling, the defense decided
not to call the expert as a witness.
       On appeal, defendant contends the trial court erred in prohibiting defense counsel
from arguing to the jury that there may have been an unrecorded conversation between a
detective and Sylvestre-Lamb before Sylvestre-Lamb identified defendant from the

                                             10
photographic lineup. We need not decide the merits of this contention because any error
was harmless. As explained above, there was another eyewitness to the crime who
identified defendant as the shooter, there was evidence of incriminating statements
defendant made immediately after the crime, cellphone data placed him near the scene at
the time of the shooting, and defendant’s own text messages implicated him in the
murder. Even if the trial court erred in excluding a defense argument that a conversation
occurred during the period in which the tape was stopped, any error was harmless, under
any standard.
III.   The Use of CALCRIM No. 315 Did Not Violate Defendant’s Right to Due
       Process
       The court instructed the jury with CALCRIM No. 315, which provides the jury
guidance in evaluating eyewitness identification testimony, including the following
question: “How certain was the witness when he or she made an identification?”
Although defendant did not object to the use of CALCRIM No. 315, he argues on appeal
the instruction violated his right to due process because it conflicted with scientific
research indicating a witness’s certainty about an identification is not a reliable indicator
of the accuracy of the identification.
       As an initial matter, the court was not required to modify CALCRIM No. 315 on
its own motion. (People v. Ward (2005) 36 Cal.4th 186, 213-214; People v. Sullivan
(2007) 151 Cal.App.4th 524, 561 (Sullivan).) Further, as defendant concedes, even in
cases in which there is expert testimony about the unreliability of eyewitness
identifications, our high court has upheld the use of an instruction that advises the jury to
consider a witness’s certainty when evaluating the validity of identification testimony.
This was true, for example, in People v. Ward, a decision issued in 2005, years after the
publication of some of the sources defendant cites in his brief as concluding there is only
a weak correlation between an eyewitness’s confidence and the accuracy of his or her
testimony. (Ward, at pp. 213-214.)




                                             11
       In People v. Sullivan, the court was presented with an argument similar to
defendant’s argument here. The Sullivan court concluded:
        “[A]lthough the California Supreme Court, like defendant’s expert, has referred to
studies that indicate a lack of correlation between the degree of confidence an eyewitness
expresses in an identification and the accuracy of that identification, this court in People
v. Gaglione (1994) 26 Cal.App.4th 1291, 1302-1303 [disapproved of another ground by
People v. Martinez (1995) 11 Cal.4th 434, 452], . . . observed that defendant’s argument
was ‘expressly rejected’ in People v. Wright (1988) 45 Cal.3d 1126 . . . . In Wright,
supra, at page 1141, the court held that ‘a proper instruction on eyewitness identification
factors should focus the jury’s attention on facts relevant to its determination of the
existence of reasonable doubt regarding identification, by listing, in a neutral manner, the
relevant factors supported by the evidence. [¶] The instruction should not take a position
as to the impact of each of the psychological factors listed.’ (Italics omitted.) In
Gaglione, we noted that the Wright opinion ‘expressly approved CALJIC No. 2.92,
commenting that CALJIC No. 2.92, with appropriate modifications to take into account
the evidence presented at trial, will usually provide sufficient guidance on eyewitness
identification factors. [Citation.]’ (People v. Gaglione, supra, at p. 1303, see also
[People v. Johnson, supra, 3 Cal.4th at pp. 1230-1231].) As in Gaglione, we therefore
‘reject defendant’s arguments and find no error in CALJIC No. 2.92’ as given with
reference to degree of certainty as a factor in assessing the reliability of eyewitness
identification testimony. (Gaglione, supra, at p. 1303.)” (Sullivan, supra, 151
Cal.App.4th at pp. 561-562, fns. omitted.)

We find the Sullivan court’s reasoning and interpretation of California Supreme Court
precedent persuasive. We likewise reject defendant’s argument that the trial court erred
in failing to eliminate the “certainty” factor from CALCRIM No. 315.5




5
       We have found the trial court did not prejudicially err in excluding the defense
argument regarding the stopped audio recording, or in failing to sua sponte modify
CALCRIM No. 315. We also have concluded the trial court did not err in admitting
Sylvestre-Lamb’s identifications of defendant, and, even if it did err, the error was
harmless beyond a reasonable doubt. We therefore reject defendant’s argument that
cumulative error as to these three issues requires reversal. (People v. Williams (2013) 56
Cal.4th 165, 201.)


                                            12
IV.    The Trial Court Did Not Err in Failing to Indicate CALCRIM No. 370 Did
       Not Apply to the Gang Enhancement Allegation
       The trial court instructed the jury with CALCRIM No. 370, as follows: “The
People are not required to prove that the defendant had a motive to commit the crime
charged. In reaching your verdict you may, however, consider whether the defendant had
a motive. [¶] Having a motive may be a factor tending to show that the defendant is
guilty. Not having a motive may be a factor tending to show the defendant is not guilty.”
Defendant contends this instruction was given in error because it was inconsistent with
Penal Code section 186.22, the gang enhancement. Section 186.22, subdivision (b)(1),
prescribes additional punishment for “any person who is convicted of a felony committed
for the benefit of, at the direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal conduct by gang
members.”6 Defendant contends this provision in fact requires the jury to make a specific
finding about the defendant’s motive before finding the gang enhancement true.
We disagree.
       As an initial matter, defendant did not request a modification of CALCRIM No.
370 in the trial court, and has therefore forfeited any objection on appeal. “Failure to
object below to an instruction correct in the law forfeits the claim on appeal.” (People v.
Fernandez (2013) 216 Cal.App.4th 540, 559; People v. Virgil, supra, 51 Cal.4th at
p. 1260.) However, the claim also fails on the merits. As defendant acknowledges, this
very argument was rejected in People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes).
6
       The trial court instructed the jury with CALCRIM No. 1401, which informed the
jury that if it found defendant guilty on count one: “you must then decide whether 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.”



                                              13
In Fuentes, the People alleged a section 186.22, subdivision (b) enhancement and a
special circumstance under section 190.2, subdivision (a)(22), which required the jury to
find the charged murder was carried out to further the activity of a criminal street gang.
(Fuentes, supra, 171 Cal.App.4th at p. 1139.) The court rejected the defendant’s
argument that these findings required the jury to also make a finding of motive. The
court explained: “An intent to further criminal gang activity is no more a ‘motive’ in
legal terms than is any other specific intent. We do not call a premeditated murderer’s
intent to kill a ‘motive,’ though his action is motivated by a desire to cause the victim’s
death. Combined, the instructions here told the jury the prosecution must prove that
Fuentes intended to further gang activity but need not show what motivated his wish to
do so. This was not ambiguous and there is no reason to think the jury could not
understand it. Fuentes claims the intent to further criminal gang activity should be
deemed a motive, but he cites no authority for this position. There was no error.” (Id. at
pp. 1139-1140.)
          The Fuentes court acknowledged that a “common-sense concept” of motive might
support the idea that an intent to further gang activity is a “motive” for committing a
murder: “A wish to kill the victim was a reason for the shooting, and a wish to further
gang activity stood behind that reason.” (Fuentes, supra, 171 Cal.App.4th at p. 1140.)
But the court explained the jury instructions “were well adapted to cope with the
situation. By listing the various ‘intents’ the prosecution was required to prove (the
intent to kill, the intent to further gang activity), while also saying the prosecution did not
have to prove a motive, the instructions told the jury where to cut off the chain of
reasons. This was done without saying anything that would confuse a reasonable juror.”
(Ibid.)
          Similarly, in People v. Snow (2003) 30 Cal.4th 43, the defendant argued an
instruction that motive was not an element of the crime charged and need not be shown
conflicted with another special circumstance instruction requiring the jury to find “ ‘the
witness was intentionally killed for the purpose of preventing his testimony in a criminal
proceeding’. . . .” (Id. at p. 98.) The court rejected the argument, explaining the

                                              14
instruction on motive referred to the crime charged and not the special circumstance
allegation. The court further reasoned: “Even allowing for misunderstanding on that
particular point, it was not reasonably likely [citation] that the jurors would have been
misled in the manner defendant suggests, as they were repeatedly and expressly
instructed to find the special circumstance allegation true only if each element, including
the purpose of preventing the victim’s testimony, was proved beyond a reasonable doubt.
The instructions, taken as a whole, did not deprive defendant of a fair trial or a reliable
penalty determination.” (Ibid.)
       We find the reasoning of Snow and Fuentes court applicable here. The gang
enhancement did not require a “motive” finding, in legal terms. While defendant focuses
on the “for the benefit of” portion of section 186.22, subdivision (b), that term is one
alternative in the statute that also includes “at the direction of,” and “in association with,”
both of which are even further removed from the meaning of “motive,” or a reason for
committing the crime. Further, as in Snow, CALCRIM No. 370 referred to motive with
respect to the crime charged, not the gang enhancement.7
       “ ‘ “ ‘[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.’ ” ’ [Citation.] Instructional error warrants reversal only if there is a
reasonable probability that the defendant would have obtained a more favorable outcome
without the error. [Citation.]” (Fuentes, supra, 171 Cal.App.4th at p. 1138.) When the
jury instructions are taken together, it is not reasonably probable that the jury
misunderstood CALCRIM No. 370 as eliminating the People’s burden to establish the
gang enhancement by proving the felony was committed 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 any criminal conduct by gang members. The jury
instructions did not use the terms “motive” and “intent” interchangeably, or “motive” and

7
      This case is unlike People v. Valenti (2016) 243 Cal.App.4th 1140 or People v.
Maurer (1995) 32 Cal.App.4th 1121, in which it could be said motive was in fact an
element of the crime charged.

                                              15
“for the benefit of” interchangeably. There is no reasonable likelihood the jury would
have concluded CALCRIM No. 370 negated the required findings specifically set forth in
CALCRIM No. 1401. (People v. Cash (2002) 28 Cal.4th 703, 739.)
V.     No Error With Respect to the Confidential Informant
       Before trial, defendant requested discovery regarding the identity of a confidential
informant. A detective’s statement noted a citizen informant had “heard on the street”
that someone else may have been involved in the charged murder. Defendant requested
the identity of the citizen informant. The People opposed the request. After an in camera
hearing, the trial court denied defendant’s request. The court concluded disclosure of the
information was against the public interest because the need to preserve the
confidentiality of the information outweighed the necessary disclosure, pursuant to
Evidence Code section 1040, subdivision (b)(2).8 The court further noted it did not find
the confidential informant was a material witness, and the court did not believe disclosure
of the identity of the informant would lead to relevant investigation or discovery.
       A second in camera proceeding occurred after defense counsel, during cross-
examination of one of the detectives who had worked on the case, asked if the detective
spoke to a citizen informant. The prosecutor objected.
       Defendant asks this court to review the record of the in camera hearings to
determine whether the trial court erred in failing to disclose confidential informant
identity.
       We review the trial court’s ruling for abuse of discretion. (People v. Suff (2014)
58 Cal.4th 1013, 1059.) “[T]he prosecution must disclose the name of an informant who
is a material witness in a criminal case or suffer dismissal of the charges against the
defendant. [Citation.] An informant is a material witness if there appears, from the


8
       Under Evidence Code section 1040, subdivision (b)(2), a public entity has a
privilege to refuse to disclose “official information” when “[d]isclosure of the
information is against the public interest because there is a necessity for preserving the
confidentiality of the information that outweighs the necessity for disclosure in the
interests of justice. . . .”

                                             16
evidence presented, a reasonable possibility that he or she could give evidence on the
issue of guilt that might exonerate the defendant. [Citation.] The defendant bears the
burden of adducing ‘ “ ‘some evidence’ ” ’ on this score.” (People v. Lawley (2002)
27 Cal.4th 102, 159.) “ ‘[T]he test of materiality is not simple relevance; it is whether the
nondisclosure might deprive defendant of his or her due process right to a fair trial.
[Citation.]’ [Citation.]” (People v. Lewis (2009) 172 Cal.App.4th 1426, 1441.)
       We have reviewed the record of the in camera proceedings. Based on that review,
we have determined the trial court properly applied the above standard and did not err in
rejecting the defense request for disclosure of the confidential informant’s identity.
(People v. Lawley, supra, at p. 159.)
VI.    The Prior Strike and Prior Serious Felony Enhancements Must Be Vacated
       Defendant argues the prior strike and prior serious felony enhancements must be
vacated because 1) the trial court failed to advise him of his constitutional rights before
accepting an admission of the prior conviction and imposing the enhancements without a
trial; and 2) defendant did not effectively admit the prior conviction. We vacate the
sentence and remand for retrial of the prior conviction allegations.
       A. Background
       In an amended information, the People alleged defendant suffered a prior “strike”-
- a serious or violent felony within the meaning of section 667, subdivision (d) and
section 1170.12, subdivision (b) -- a 2003 conviction for burglary (§ 459). The same
conviction formed the basis of an allegation of a prior serious felony conviction within
the meaning of section 667, subdivision (a)(1).
       During defendant’s trial testimony, he admitted he had suffered several prior
convictions, including 2003 convictions for “burglary.” Following closing arguments,
the trial court raised the issue of the priors. The court noted: “[Defendant] has
essentially admitted all the priors. I don’t know if – at least the factual basis for the
priors, but not necessarily the dates and all the case numbers. I don’t know if that is
something that you’re going to consider that the court will decide subsequent to the jury’s


                                              17
verdict or if you require the jury to make that decision.” Defense counsel said she would
speak to defendant and have a decision before jury deliberations began the next day.
       The next day the court returned to the issue: “We then have the issue of whether
[defendant] will have the priors decided by the court. Previously, I think he’s essentially
admitted the priors anyway.” Defense counsel responded: “Yes, he’ll admit. He will
waive the jury.” The court stated: “All right. The court will accept the admissions at
this time and it will not need to be decided by the jury. Okay.”
       At the later sentencing hearing, the court described the prior proceedings and
stated: “[Defendant] admitted the additional prior conviction under Penal Code section
667(a).” When the court asked if there were any victim impact statements, the prosecutor
responded by first stating: “[W]ith respect to [defendant’s] admission of the prior
conviction pursuant to 667(a)(1),” the prosecutor had a 969(b) packet he wished to
submit into evidence. After the reviewing the packet, defense counsel had no objection.
The prosecutor further explained: “I would just say this 969(b) package is the basis for
the allegation in the amended allegation and I would ask that the court review it and I
think that it substantiates the allegation.” The packet was marked as a court exhibit.
Defense counsel made a Romero motion,9 which the prosecutor opposed. The prosecutor
argued, in part, that defendant had not led a crime-free life since the 2003 conviction, as
evidenced by subsequent convictions which were “substantiated by the 969(b) package
put in front of the court.” The court accepted the exhibit and admitted it into evidence
“for purposes of sentencing.” The court made no express finding as to the truth of the
prior strike and prior serious felony allegations. However, the court later doubled the 25-
years-to-life term pursuant to the Three Strikes Law and added a five-year enhancement
pursuant to section 667, subdivision (a).
       B. Applicable Legal Principles
       Defendant’s argument is two-fold. Defendant contends the trial court erred in
that: 1) defendant’s admission of the prior conviction, through counsel, was invalid


9
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
                                             18
because the trial court did not first advise him of his constitutional rights before accepting
the admission; and 2) defendant did not effectively admit the prior conviction because he
did not personally make the admission and, although he admitted suffering multiple 2003
burglary convictions in his trial testimony, he did not admit one of the convictions was
for first degree burglary, and therefore a serious felony for purposes of sections 667 and
1170.12. (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1), 1192.7, subd. (c)(18).) The People
argue there was a court trial on the prior conviction allegations and defendant waived any
objection to that court trial by failing to object below. The People further assert the trial
court properly found the prior conviction allegations true and it could properly consider
defendant’s trial testimony as evidence. Finally, the People contend that even if
defendant’s argument is not forfeited and the trial court erred in failing to obtain a
personal waiver or in relying on defendant’s admission, any error was harmless.
       When the People allege a prior conviction sentencing enhancement, the defendant
has a statutory right to a jury trial on the factual issues raised by a denial of the allegation
of prior convictions. (People v. Vera (1997) 15 Cal.4th 269, 274; In re Yurko (1974) 10
Cal.3d 857, 863.) The defendant may waive the right to a jury trial and have the court
determine the truth of the allegation. (§ 1158.)
       A defendant may also admit a prior conviction. However, “[b]efore a trial court
may accept a defendant's admission of prior felony convictions, the court must advise the
accused of the right against compulsory self-incrimination, the right to confrontation, and
the right to a jury trial. (People v. Mosby (2004) 33 Cal.4th 353, 359-360 . . . (Mosby);
accord [Boykin v. Alabama, supra, 395 U.S. at p. 243 . . . , In re Tahl [supra, 1 Cal.3d at
p. 132]; In re Yurko [supra, 10 Cal.3d 857].) The trial court also must advise the accused
of the penal consequences of admitting a prior conviction. ‘[A]n accused, prior to the
time the court accepts his admission of an allegation of a prior criminal conviction or
convictions, is entitled to be advised: (1) that he may thereby be adjudged an habitual
criminal . . . ; (2) of the precise increase in the term or terms which might be imposed, if
any . . . ; and (3) of the effect of any increased term or terms of imprisonment on the
accused's eligibility for parole.’ [Citation.]” (People v. Sifuentes (2011) 195 Cal.App.4th

                                               19
1410, 1420.) The court must obtain an express waiver of the defendant’s constitutional
rights before accepting an admission. (Mosby, 33 Cal.4th at pp. 360-361.)
       “[I]f the transcript does not reveal complete advisements and waivers, the
reviewing court must examine the record of ‘the entire proceeding’ to assess whether the
defendant's admission of the prior conviction was intelligent and voluntary in light of the
totality of circumstances.” (Mosby, supra, 33 Cal.4th at p. 361.) In Mosby, the defendant
expressly and personally waived his right to a jury trial on a prior conviction allegation,
but he was not advised of his rights to remain silent and confront witnesses. (Id. at
p. 364.) After reviewing all of the circumstances, which included that the prior
conviction was based on a guilty plea; the defendant had just participated in a jury trial in
which he confronted witnesses and remained silent; and he was advised of his right to a
trial on the alleged prior conviction, the court concluded the defendant’s admission of the
prior conviction was voluntary and intelligent. (Id. at pp. 364-365.)
       C. Application
       Our review of the record persuades us we must reject the People’s contention that
the trial court conducted a bench trial on the prior conviction allegations rather than
relying on the defense admission. In the colloquies between the court and defense
counsel on the issue, both the court and defense counsel discussed not only the waiver of
a jury trial, but defendant “admitting” the prior conviction allegations. Although the
prosecutor entered a 969(b) packet into evidence, he prefaced the introduction of the
documents by stating: “with respect to [defendant’s] admission of the prior conviction
pursuant to 667(a)(1) . . .” The court admitted the packet into evidence. Yet, the court
did not make any express findings that the evidence established the prior strike and
serious felony enhancements were true beyond a reasonable doubt. Indeed, the court
made no findings at all with respect to the prior conviction allegations, and instead only
indicated defendant had admitted the prior conviction. Except for the introduction of the
969(b) packet, the record includes no indicia of a court trial on the prior conviction
allegations. When considered as a whole, the record reflects that the court and the parties


                                             20
proceeded as if defendant had admitted the prior conviction, eliminating the need for a
trial on the prior strike and serious felony allegations.
       We must therefore determine whether the admission was valid. The court did not
advise defendant of any of his constitutional rights before accepting the purported
admission. In Mosby, the court summarized prior “silent record” cases, in which no
express advisement and waiver of Boykin-Tahl rights were given or obtained before a
defendant’s admission of a prior conviction. The court concluded that in such cases, in
which the defendant was not advised of the right to have a trial on an alleged prior
conviction, and did not expressly waive the right to trial, it would not “infer that in
admitting the prior the defendant has knowingly and intelligently waived that right as
well as the associated rights to silence and confrontation of witnesses.” (Mosby, supra, at
p. 362.)
       However, as noted above, the Mosby court distinguished cases in which partial
advisements were given and, for example, the defendant was advised of the right to a trial
on the prior conviction allegations, but was not advised of and did not waive the rights to
silence and confrontation. In such cases, reversal is not necessarily required; instead the
court is to determine whether under the totality of the circumstances it may be determined
that the defendant’s admission of a prior conviction was intelligent and voluntary.
(Mosby, supra, 33 Cal.4th at p. 361.) We also note the issue of whether the “totality of
the circumstances” test may be applied in a “silent record” case is currently pending
before the California Supreme Court.10
       In this case, reversal is necessary because the record, even when considered as a
whole, does not indicate a voluntary and intelligent admission of the prior conviction in
light of the totality of the circumstances. We acknowledge that defendant had just


10
       An additional issue in the case is whether references to a defendant’s
constitutional rights at earlier stages of the proceedings and the defendant’s criminal
history are sufficient to support the conclusion that the defendant knowingly and
voluntarily waived those rights. (People v. Farwell, review granted Feb. 3, 2016,
S231009.)

                                              21
experienced a jury trial in which he confronted witnesses and he also testified he suffered
convictions for burglary in 2003. But he did not testify as to the degree of the crimes.
As defendant’s prior convictions occurred after the passage of Proposition 21, to qualify
as a serious felony, the burglary must have been in the first degree. (People v. Garrett
(2001) 92 Cal.App.4th 1417, 1421-1424.) The court did not advise defendant of any his
rights with respect to the prior conviction allegation. Defendant also did not personally
or expressly waive any of those rights; instead, the court merely accepted defense
counsel’s statement that defendant would “admit” and “waive the jury.” (See People v.
Williams (1980) 103 Cal.App.3d 507, 513 [purpose behind section 1025 requirement that
defendant personally answer that he has suffered the subject prior conviction is to ensure
the incriminatory statement is the defendant’s own].) In addition, the court twice
suggested defendant had already “essentially admitted” the priors, potentially
deemphasizing or obscuring that defendant had not admitted a first degree burglary and
that he still had the right to a jury or court trial, to confront witnesses, and to remain
silent.
          This case is unlike Mosby, in which the trial court advised the defendant of his
right to a jury or court trial on the prior conviction allegation and the defendant
personally and expressly waived that right. (Mosby, supra, 33 Cal.4th at pp. 357-358,
365.) Instead, it more closely resembles People v. Cross (2015) 61 Cal.4th 164, in which
the court found a stipulation to a prior conviction invalid since the court did not ask
whether the defendant had discussed the stipulation with his lawyer, it did not ask any
questions of the defendant personally “or in any way inform him of his right to a fair
determination of the prior conviction allegation,” the court had no information on how
the alleged prior conviction was obtained, and nothing in the record affirmatively showed
the defendant was aware of his rights as to the prior conviction allegation. (Id. at p. 180.)
          Here, the record does not affirmatively show that defendant provided an intelligent
and voluntary admission of the prior conviction. We therefore reverse the prior
conviction findings; defendant may be retried on the prior conviction allegations.
(People v. Sifuentes, supra, 195 Cal.App.4th at p. 1421.)

                                               22
                                     DISPOSITION
       We vacate defendant’s sentence and remand for retrial of the prior conviction
allegations and resentencing. In all other respects, the judgment is affirmed.




                                                        BIGELOW, P.J.
We concur:


                     RUBIN, J.




                     GRIMES, J.




                                            23
