Opinion
B324714
02-20-2024
THE PEOPLE, Plaintiff and Respondent, v. NAJEON SAMUEL GIBSON, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA153535, Kelvin D. Filer, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Najeon Samuel Gibson appeals from a judgment of conviction after the jury found him guilty of first degree murder, attempted willful, deliberate, and premeditated murder, and conspiracy to commit murder in connection with a December 10, 2020 shooting of rival gang members. On appeal, Gibson contends the trial court abused its discretion and violated his rights to due process and a fair trial by admitting evidence of a gang-related homicide committed on December 9 by Gibson's gang, in which Gibson was not involved. He also contends there was not substantial evidence to support the convictions; the court erred in instructing the jury with a modified version of CALCRIM No. 375 on other acts evidence and CALCRIM No. 372 on flight; and the trial court abused its discretion in denying his motion for new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
1. The gang expert testimony
Los Angeles Police Officer Andres Fernandez, who monitored the East Coast Crip criminal street gang for five years, testified as the prosecution's gang expert. Officer Fernandez estimated the East Coast Crips had more than 800 members, divided among 13 "sets," including the 6-Deuce, 6-6 and 6-9 sets. The East Coast Crips' rivals included, among others, the Family Swan Bloods.
Officer Fernandez testified that a "set" is a subset of a Black gang. The number for each set generally refers to a specific geographical area.
Officer Fernandez opined Gibson, his brother Mario Gibson, and Brandon Brown were part of the 6-9 East Coast Crips. He based his opinion on his contacts with them, their selfadmissions, their gang tattoos, their frequent association "with other members at specific gang locations," and social media pictures. Navonn Woodson and Richard Perry, who were involved in the December 9 shooting, were members of the 6-Deuce and 6-6 East Coast Crips, respectively. According to Officer Fernandez, the area of 62nd and San Pedro Streets (62nd Street location) was "a stronghold or a known gang hangout for the East Coast Crips, primarily the 6-Deuce East Coast Crips." In addition, a house located on West 70th Street (70th Street location) was "a known stronghold for the East Coast Crips, primarily the 6-9's."
We refer to Mario Gibson by his first name to avoid confusion. Gibson and Mario were tried together. Mario is not a party to this appeal.
Officer Fernandez testified the gangs had a hierarchy: associates were at the bottom; next were "new booties," or "young bucks, the foot soldiers"; above them were the "soldiers or actual shooters"; and at the top were "the seniors or the shot-callers." A gang member who wanted to rise in the hierarchy would put in work by committing crimes, including vandalism, murder, burglary, and robbery. Officer Fernandez testified that killing a rival gang member "would give you a huge bump up in seniority as well as respect, especially if you do it more than once." Further, "there is more value in going to a rival territory and committing a crime than sitting back and defending your own hood."
2. The December 9, 2020 shooting of Wofford
At 5:56 p.m. on December 9, 2020 Tyrone Wofford, a Family Swan Blood gang member, was shot in front of an apartment building on East 91st Street (the 91st Street building), which was a Family Swan Blood hangout. Wofford was pronounced dead at the hospital.
Los Angeles Police Detective Jocelyn Baguinat was assigned to investigate the homicide. Detective Baguinat reviewed surveillance videos of the night of the shooting taken from the security cameras on the front of the 91st Street building and two nearby residences. One video showed a sedan and an SUV drive to East 91st Street and continue down the street. Then three individuals walked toward the 91st Street building. They "create[d] a firing line and then [started] shooting toward the direction of where the victims were standing." Another surveillance video showed "three individuals running away westbound on 91st Street," with "the last individual from the group running away, shooting a couple of times towards the apartment building."
The prosecutor played the identified surveillance videos for the jury.
Detective Baguinat viewed surveillance videos from other locations and determined that the sedan and SUV drove to the 62nd Street location after the shooting. Detective Baguinat and Officer Fernandez also viewed surveillance videos from cameras in the 62nd Street area taken from approximately 3:30 p.m. to approximately 11:00 p.m. on December 9. One video showed that at 3:51 p.m. Gibson, dressed all in blue, double-parked his blue Audi at the 62nd Street location. Gibson exited his vehicle and spoke with several individuals, including Woodson and Perry. Gibson left the location in his blue Audi at approximately 4:46 p.m.
At 5:41 p.m. several individuals took the back license plate off a blue sedan that was double-parked in front of the entrance to a car wash on 62nd Street. Woodson then got into the driver's seat and Brown got into the front passenger seat. Perry got into the front passenger's seat of a black SUV that was registered to him as the owner. At 5:44 p.m. the blue sedan and black SUV left the 62nd Street location (12 minutes before the Wofford shooting). Based on the surveillance videos, Detective Banguinat identified Brown, Perry, and Woodson as the East Coast Crip gang members involved in the Wofford shooting.
Perry testified he was a former East Coast Crip gang member from the 6-6 set. Perry identified Gibson and Mario as members of the East Coast Crips. Perry knew Gibson as "Young Snoop" or "Young Snoopy" and Mario as "Eastwood." On the afternoon of December 9, 2020 Perry went to the 62nd Street location to get his black SUV washed and to hang out. "Little Habit," an East Coast Crip, told Perry about a party, and Perry agreed to attend along with another gang member, "Infant Shorty." Perry had a suspended license, so he asked Little Habit to drive his vehicle. Little Habit drove the black SUV onto 91st Street and parked the vehicle in front of a store. Perry heard gunshots and "slouched in [his] seat." Little Habit then drove back to the 62nd Street location. As they were driving back, Perry noticed another car turned with them onto 62nd Street. Perry testified he did not realize he was involved in a shooting until he was pulled over by police and told his vehicle had been used in a homicide. Perry denied Gibson or Mario had any involvement in the December 9 shooting.
Perry was charged with murder and conspiracy to commit murder, but prior to his testimony he entered into a negotiated plea for manslaughter with a three-year sentence in exchange for his truthful testimony.
3. The December 10, 2020 shooting
On the night of December 10, 2020, the Family Swan Bloods held a candlelight vigil for Wofford on the driveway of the 91st Street building. At approximately 11:45 p.m. Nathaniel Caldwell, a Family Swan Blood gang member, stopped by the Wofford vigil for five to 10 minutes. Caldwell was hit by a gunshot, and he drove himself to the hospital where he was released later that night.
Shortly after 11:45 p.m. Los Angeles Police Officer Mitchell Woods arrived at the scene in response to a call about a shooting. Officer Woods found Ayana Treadway, a Family Swan Blood gang member, lying face down in the middle of the driveway of the 91st Street building. Treadway was shot in the back, and the gunshot perforated her heart and right lung. Treadway was taken to the hospital, where she died.
Officer Woods assisted in canvassing the scene for evidence. He saw approximately 50 to 60 spent shell casings on the street and sidewalk. He also recovered a key ring at the scene containing an Audi key and one or more house keys. He noticed the keys after another police officer kicked them. Officer Woods did not use gloves when he picked up the keys from the ground because he believed the keys had been discarded by one of the Family Swan Blood gang members who was arrested at the vigil earlier and who might have stored an illegal firearm in a vehicle. Officer Woods "walked up and down the street, pressing the unlock button, attempting to locate the vehicle," but he was unsuccessful. He turned the keys over to another police officer. Police officers at the scene collected 58 shell casings and 11 bullet fragments.
4. The investigation of the December 10 shooting
Los Angeles Police Detectives Nancy Johnson and Gregg Fischer were assigned to investigate the December 10 shooting. The detectives did not locate any eyewitnesses to the shooting (other than Caldwell, who was shot). However, Detective Johnson obtained surveillance videos for the night of December 10 from about 20 cameras with different angles. Surveillance footage from a house near the 91st Street building showed "a smaller SUV that was followed by a dark colored four-door sedan." Detective Johnson used surveillance videos to track the two vehicles before and after the shooting to the 70th Street location, which was a 6-9 East Coast Crips hangout.
A surveillance video from a location across the street from the 70th Street location taken before the shooting showed an SUV (which another video showed was red) backing into a driveway, and an Audi SUV pulling forward to park behind it. The detectives determined from the time stamp that the video was taken a few minutes after 11:00 p.m. Multiple individuals congregated around the driveway. A man then entered the driver's seat of the black sedan that was later used in the shooting; the sedan was parked on 70th Street. The Audi SUV reversed out of the driveway and collided with the passenger side of the black sedan, causing damage. The Audi SUV made a U-turn and parked on the south side of the street. The red SUV then exited the driveway and parked eastbound on 70th Street. Shortly after the Audi SUV parked, a "tall, slender individual" with a "similar build[] and stature[]" to Gibson exited the Audi SUV and walked across the street holding "something in their hand that's lit." He then entered the driver's seat of the red SUV. Two other people got into the red SUV, and three or four people got into the black sedan. The red SUV and the black sedan then left the 70th Street location.
Detective Fischer testified the individual who exited the Audi SUV had the same stature and build as Gibson, but he acknowledged he could not see the face, hairstyle, or clothing of the individual in the video.
Detective Johnson testified the surveillance video showed three people were in the red SUV and three people were in the sedan. Her partner, Detective Fischer, testified "three people loaded up into" the red SUV and four people were in the black sedan.
At 11:40 p.m. the red SUV and black sedan traveled northbound on Wadsworth Avenue from 92nd Street. The vehicles passed the 91st Street building, circled the block, and traveled back on Wadsworth Avenue to the 91st Street building, where the shooting occurred. Surveillance video showed five shooters. However, Detective Johnson was unable to ascertain the identities of the shooters from the video. The shooters exited the two vehicles and stood near the vehicles as they shot in the direction of the candlelight vigil. One surveillance video showed a person standing next to the open driver's side door of the red SUV. The Audi key was recovered from the area where the SUV was located.
After the shooting, the red SUV continued westbound on 91st Street and returned to the 70th Street location at approximately 11:53 p.m. The black sedan arrived approximately 15 minutes later and backed into the driveway. The red SUV and the black sedan drove away from the 70th Street location in the early morning of December 11. The parked blue Audi did not leave the location prior to 2:00 a.m. on December 11.
The police obtained surveillance videos from the morning of December 10, 2020 until approximately 2:00 a.m. the next day.
Detective Johnson opined the December 10 shooting was gang-related because the rival Family Swan Blood gang members were shot; the shootings occurred the day after Wofford (a Family Swan Blood member) had been killed; and the shooting was in the same location as the Wofford shooting. Further, the circumstances of the December 9 and 10 shootings were similar with two vehicles driving to the 91st building and multiple people exiting the vehicles and shooting at the Family Swan Blood gang members. Based on the similarities between the two shootings, Detective Johnson reviewed the December 9 surveillance videos of the 62nd Street location. She observed a blue Audi SUV in the video that had a similar shape to the vehicle she saw in the December 10 surveillance video of the 70th Street location, including the shape of the windows and racks on top of the vehicle.
5. The December 11, 2020 arrest
On December 11, 2020 at approximately 5:40 p.m. Los Angeles Police Officers Omar Covarrubias and Richard Pacheco were on patrol when they saw Gibson standing on the sidewalk on the south side of 70th Street near a parked blue Audi. Mario was sitting in a red SUV parked in a nearby driveway. When Officer Covarrubias attempted to pat down Gibson to detain him on an unrelated matter, Gibson pushed Officer Covarrubias away and attempted to flee. Officer Covarrubias grabbed Gibson's shirt, and Gibson attempted to push him again. The two then fell to the ground. Officer Covarrubias handcuffed Gibson and walked him to the patrol car without further incident. Gibson admitted to Officer Covarrubias that he was an East Coast Crip with gang tattoos, including "the 6-9 that he ha[d] on his face." Officer Pacheco asked Gibson whether he had his car keys so Officer Pacheco could search the vehicle, and Gibson responded, "I just lost my car keys, that's why it's here." Gibson told Officer Pacheco that one of the car doors was open, and Officer Pacheco was able to search the vehicle. Officer Pacheco did not find anything incriminating. Gibson's arrest on December 11 was not related to the December 10 shooting.
The prosecutor played videos from the officers' body cameras to the jury.
Detective Johnson reviewed body camera video from the December 11 arrest, and she observed the red SUV, which was similar to the red SUV used in the December 10 shooting. The video showed the red SUV reverse into a driveway across the street from the "original load-up spot" (that is, the 70th Street location). She obtained the license plate of the red SUV from the body camera footage, and she found Mario had rented the vehicle from November 28 to December 13. Detective Johnson also observed that the blue Audi in the December 11 body camera video was similar to the SUV from the December 10 surveillance video in "body style, type, and shape." In addition, the blue Audi was parked in the same location in both videos.
6. The jail calls
On December 13, 2020 Gibson made a call to Mario while in custody. Mario told Gibson he was "still trying to figure out how" he was going to "get [Gibson's] car, move that other car." Mario stated he had been calling "a locksmith every day," but the locksmiths told him "you gotta go to the dealer" and "have the dealer do it." Mario agreed he would get the vehicle towed to the Audi dealer the next day.
Two days later, Gibson made another call to Mario while in jail. Mario said he was "going to take cuz today to get another Jason." Mario added, "Had to let the other Jason go." Towards the end of another jail call, Mario told Gibson, "You gotta call me back because I don't know where them other two at either." Gibson asked, "What?" Mario responded, "Them other two Jasons." Gibson said, "we gonna chat," and he mentioned a "white box" in the "shop." In a third jail call, Mario asked Gibson, "What you had, a got Jason with you or something?" Gibson responded, "Who? Nah, why you say that?" Mario answered, "Shit, I was wondering why you ran."
As the People acknowledge, the record is unclear whether this call occurred while Gibson was in custody following his December 11, 20220 arrest or the January 21, 2021 arrest.
Detective Johnson testified that people in custody will use code words "in referring to guns or drugs" in recorded jail calls. She opined that "Jason" was a code word for a gun based on the context of the calls.
7. The search of Gibson's social media, home, and cell phone
The police executed search warrants of Gibson's social media account, cell phone, and home. Gibson' social media account showed a video of Gibson with Woodson and a photograph of Brown with Gibson and Mario. During the search of Gibson's home, the police recovered Gibson's cell phone. Detective Johson testified the police used the house key from the key ring with the recovered Audi key to unlock Gibson's front door.
Federal Bureau of Investigation special agent Jeff Bennett testified as the prosecution's expert on historical cell site analysis. He testified that although the analysis provides a general geographic location of a cell phone for a particular date and time, it differs from GPS in that "[a] cell phone will always select the tower that has the clearest and cleanest signal," which might not be the closest cell tower. Agent Bennett analyzed the call detail records for Gibson's and Mario's cell phones with the cell tower information during the period from 10:18 p.m. on December 10, 2020 until 12:14 a.m. on December 11. Agent Bennett testified that at 10:36 p.m. on December 10, Gibson's cell phone made an outgoing call 10 seconds before Mario received an incoming call, and the two cell phones were in close geographic proximity. Gibson's cell phone connected to a cell tower at McKinley Avenue and 87th Street, and Mario's cell phone utilized a cell tower at San Pedro and 87th Streets. Detective Johnson opined that Gibson and Mario were casing the 91st building one hour before the December 10 shooting based on this cell phone evidence that placed Gibson and Mario in the area at that time. There was no activity from Gibson's cell phone at the time of the December 10 shooting.
At 11:55 p.m. on December 10 Gibson's cell phone connected to a cell tower near Florence Avenue and Main Street. From 12:10 to 12:14 a.m. the following morning, Gibson's cell phone connected five times to cell towers in the area that included the 70th Street location. A printout of a download on Gibson's cell phone at 12:10 a.m. showed information for six locksmiths. At 12:51 a.m. Gibson's cell phone created a screen shot of an area very close to the 70th Street location.
8. The January 21, 2021 arrest
On January 21, 2021 at approximately 7:30 p.m. Los Angeles Police Officer Jonathan Delgadillo was assigned to monitor Gibson's blue Audi, which was in the area of San Pedro Street and Gage Avenue. Officer Delgadillo attempted to detain Gibson as part of the December 10 murder investigation, but Gibson got back into his vehicle and drove away. Officer Delgadillo pursued Gibson on surface streets as Gibson made a number of turns at high speeds, reaching a maximum speed of approximately 60 miles per hour. Gibson crashed the blue Audi, then exited the vehicle and ran. The police officers ultimately arrested him.
The Department of Motor Vehicles (DMV) record showed Gibson was the registered owner of the blue Audi.
Gibson had an Audi key in his possession at the time of his arrest. Detective Johnson opined the Audi key "appeared to be a newer key fob, although the vehicle was a 2008." The police were unable to start the ignition of the blue Audi with the Audi key recovered from the scene of the December 10 shooting. But the key unlocked and locked the car door and moved the car windows up and down.
Gibson and Mario did not call witnesses or present evidence at trial.
B. The Verdicts and Sentencing
The jury found Gibson guilty of the first degree murder of Treadway (count 1; Pen. Code, § 187, subd. (a)) and attempted willful, deliberate, and premeditated murder of Caldwell (count 2; §§ 187, subd. (a) &664). As to both counts, the jury found not true that Gibson personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury also found Gibson guilty of conspiracy to commit murder (count 3; §§ 182, subd. (a)(1) &187, subd. (a)). On the conspiracy count, the jury found the following overt acts were true: Gibson, Mario, and unnamed co-conspirators "drove away in a two-car tandem of suspect vehicles"; Gibson, Mario, and unnamed co-conspirators "drove to the shooting location . . . to scout out the candlelight vigil for Tyrone Wofford"; and Gibson, Mario, and unnamed coconspirators "circled the block and returned to the candlelight vigil."
Further undesignated statutory references are to the Penal Code.
The jury found Mario guilty of attempted murder but not true that it was willful, deliberate, and premeditated. The jury could not reach a verdict on count 1 (first degree murder) and count 3 (conspiracy to commit murder) as to Mario, and the trial court declared a mistrial as to those two counts.
After the reading of the verdicts, Gibson's trial attorney moved for judgment notwithstanding the verdict based on the jury's not true finding as to the allegation that Gibson personally used a firearm. The trial court denied the motion.
In a bifurcated proceeding, Gibson admitted he suffered a prior conviction in 2014 for voluntary manslaughter (§ 192, subd. (a)). The trial court granted Gibson's Romero motion to strike the prior conviction for purposes of sentencing as to counts 2 and 3 but denied his request as to count 1. The court dismissed a 2008 prior conviction allegation pursuant to section 1385. The court also denied Gibson's motion for new trial.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504.
The court sentenced Gibson to an aggregate term of 57 years to life: 25 years to life for first degree murder (count 1), doubled to 50 years to life under the three strikes law (§§ 667, subds. (b)-(i), 1170.12 (c)(1)) with a consecutive term of seven years to life for attempted murder (count 2). The court imposed a term of 25 years to life for conspiracy to commit murder (count 3) but stayed the sentence pursuant to section 654.
Gibson timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of the December 9 Shooting and Gibson's Interactions with the Suspects
1. Trial court proceedings
Prior to trial, the prosecutor filed a trial brief seeking admission of evidence of the December 9 shooting of Wofford under Evidence Code section 1101, subdivision (b), to show Gibson's and Mario's motive and intent for the December 10 shooting. Over Gibson's and Mario's objections, the trial court granted the motion. The court reasoned the December 9 shooting was "inextricably tied" to the allegations against Gibson and Mario, the December 9 and 10 shootings had "some similarity" and were gang-related, and the December 9 shooting was relevant to show motive and intent. The court stated any prejudice would be obviated by "instructing the jury that this evidence is coming in for a limited purpose and for that purpose only."
Mario subsequently filed a motion to exclude evidence relating to the December 9 shooting and Mario and Gibson's presence at the 62nd Street location on that day. Mario argued evidence of the shooting was intended to show bad character in violation of Evidence Code section 1101, subdivision (a), and was prejudicial. Further, the suspects and vehicles involved in the December 9 and 10 shootings were different; the 62nd Street location was not relevant to December 10 shooting; the December 10 shooting was not a retaliatory shooting; and evidence of the December 9 shooting was not probative of Mario's or Gibson's motive or intent and was prejudicial.
At the hearing on the motion, the parties agreed to exclude surveillance video depicting the vehicles traveling to the December 9 shooting; testimony and an autopsy report showing how Wofford died; testimony from responding officers; and 911 calls. The prosecutor stated he wanted to present surveillance footage depicting the December 9 shooting because he had "to prove by a preponderance of the evidence that this shooting occurred." He argued the December 9 shooting was relevant because Mario and Gibson were "both East Coast Crip gang members, who conducted a very similar circumstantial shooting at the memorial for Mr. Wofford the night after" the Wofford shooting, and "both brothers were at 62nd and San Pedro on December 9." Further, the brothers' knowledge of the December 9 shooting was "relevant to the premeditation and deliberation, their intent and their motive in this case." Mario's attorney responded that the December 9 shooting was not relevant because when Mario and Gibson were at the 62nd Street location on December 9, there was no conversation or planning about the December 10 shooting.
The trial court denied the motion to exclude. The court agreed the December 10 shooting was not "the typical retaliatory type of shooting." But the court reasoned the December 9 shooting was relevant to show "maybe [East Coast Crip members] were going back to finish the job" on December 10 and "to make a point that there's not going to be any memorials." The court added, "[T]he fact that these two defendants have some sort of connection with the individuals by their presence, by their knowledge, and by their awareness of the shooting on December 9th, that has probative value, because it could go towards intent as to why this-the offense and shooting occurred on December 10th." The court did not find the evidence "too prejudicial," but it limited the prosecutor to showing only one surveillance video of the Wofford shooting and noted the defense could "request an appropriate limiting instruction as to how the jury can consider this evidence." The court added that evidence relating to the December 9 shooting would not be time consuming because the prosecutor represented that "the approximate length as to all of these videos" was 20 minutes.
2. The admission of evidence under Evidence Code sections 1101 and 352
Evidence Code section 1101, subdivision (a), "'expressly prohibits the use of an uncharged offense [or other act] if the only theory of relevance is that the accused has a propensity (or disposition) to commit the crime charged and that this propensity is circumstantial proof that the accused behaved accordingly on the occasion of the charged offense.'" (People v. Chhoun (2021) 11 Cal.5th 1, 25; accord, People v. Leon (2015) 61 Cal.4th 569, 597 ["'Character evidence, sometimes described as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a specified occasion.'"].) But evidence of other offenses or conduct "'"is admissible under Evidence Code section 1101, subdivision (b) 'when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.'"'" (People v. Scully (2021) 11 Cal.5th 542, 586; accord, Chhoun, at p. 25 ["'If an uncharged act is relevant to prove some fact other than propensity,' such as the perpetrator's intent or identity, or the existence of a common plan, 'the evidence is admissible, subject to a limiting instruction upon request.'"].)
Evidence Code section 1101, subdivision (a), provides, "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Evidence Code section 1101, subdivision (b), provides, "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . other than his or her disposition to commit such an act."
"Even if evidence of the uncharged conduct is sufficiently similar to the charged crimes to be relevant for a nonpropensity purpose, the trial court must next determine whether the evidence's probative value is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury'" under Evidence Code section 352. (People v. Chhoun, supra, 11 Cal.5th at p. 26; accord, People v. Pineda (2022) 13 Cal.5th 186, 221-222 ["'[T]o be admissible such evidence [of uncharged acts] also "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352."'"].) "'"'In applying section 352, "prejudicial" is not synonymous with "damaging."'" [Citation.] "'"[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case."'" [Citation.] The "prejudice" which section 352 seeks to avoid is that which "'"uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. "'"'" (Chhoun, at p. 29; accord, People v. Thomas (2023) 14 Cal.5th 327, 363.) The trial court's decision to admit evidence under Evidence Code sections 1101, subdivision (b), and 352 is reviewed for an abuse of discretion. (Thomas, at p. 361; Chhoun, at p. 26.)
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
3. The trial court did not abuse its discretion in admitting the December 9 evidence
Gibson contends the trial court abused its discretion in admitting evidence of the December 9 shooting and his interactions with the suspects (the December 9 evidence) under Evidence Code section 1101, subdivision (b). Gibson argues he was not a suspect in the December 9 shooting; he was at the 62nd Street location for 53 minutes; there was no evidence his interaction with the suspects included any substantive discussion about their planned shooting; he left an hour before the suspects did; and there was no gang charge or enhancement allegation for the jury to decide. Gibson also maintains his conduct of being an admitted gang member at a gang hangout location and speaking with fellow gang members does not fall within the ambit of prior misconduct evidence addressed by Evidence Code section 1101, subdivision (b).
Although there was no gang charge or enhancement allegation, Gibson's interactions with fellow gang members Perry and Woodson at a gang hangout an hour before the December 9 shooting was admissible under section 1101, subdivision (b), to prove Gibson's motive and intent for the December 10 shooting. (People v. Valdez (2012) 55 Cal.4th 82, 131 [gang-related evidence is admissible if "'relevant to prove some fact . . . other than [defendant's] disposition to commit' crimes"]; People v. Williams (1997) 16 Cal.4th 153, 193 ["gang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect"]; People v. Huynh (2021) 65 Cal.App.5th 969, 980 ["'"Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative."'"].) "Common gang motives include 'criminal activity against a rival [citations] or a suspected rival [citation]; a battle over gang territory [citations]; retaliation for a prior attack upon a gang member [citation]; intimidation preceded by gang signs and identification [citation]; or bolstering one's reputation within the gang [citation].'" (Huynh, at pp. 980-981; accord, People v. Funes (1994) 23 Cal.App.4th 1506, 1510-1511, 1518 [defendant's gang membership and activity were relevant to his motive and intent for attacking rival gang member].)
Gibson is correct that he was neither a suspect nor charged with any crime relating to the December 9 shooting. But evidence of the December 9 shooting was not offered as uncharged misconduct to prove Gibson's propensity or disposition to commit crimes, which would be inadmissible under Evidence Code section 1101, subdivision (a). Rather, the December 9 shooting was admissible as relevant gang-related evidence to prove Gibson's motive and intent for the December 10 shooting. (Evid. Code, § 210 ["'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."].) There were similarities between the December 9 and 10 gang shootings: On both days East Coast Crip members drove in two vehicles in tandem to the 91st Street building from their gang hangouts, shot at rival gang members from the Family Swan Bloods, and then returned to their gang hangouts. This evidence showed that the December 10 shooting was not simply a random act of violence, but rather, was intended to kill Family Swan Bloods at the same location as the day before. As the trial court found, the December 9 evidence was relevant to show Gibson's and the gang's intent "to make a point that there's not going to be any memorials" held by the rival gang. The fact Gibson, as a member of the East Coast Crips, was seen talking to two of the December 9 suspected shooters just an hour before the shooting was circumstantial evidence that he was one of the gang members who went the next day to further terrorize the same rival gang.
The trial court also did not abuse its discretion under Evidence Code section 352 in finding this probative value of the December 9 evidence was not substantially outweighed by the probability of undue prejudice or undue consumption of time. (See People v. Duong (2020) 10 Cal.5th 36, 64 ["'"'[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.'"'"]; accord, People v. McKinnon (2011) 52 Cal.4th 610, 655.)
With respect to undue prejudice, the jury already learned that Gibson was a gang member, and further, he was not charged with any crime in connection with the December 9 shooting. Moreover, any prejudice was mitigated by the trial court's instructions to the jury that "it is not against the law to be a member of or to associate with a gang" and that jurors "may consider evidence of gang membership or activity only for the limited purpose of deciding whether the defendants had a motive and/or intent to commit the crimes charged." (People v. Duong, supra, 10 Cal.5th at p. 65 [probative value of gang evidence to show defendant's motive for shooting was not substantially outweighed by undue prejudice where trial court "properly admonished the jury that gang evidence was only relevant as to identity or motive and did not reflect on defendant's character"].)
As to the consumption of time, the prosecution was required to prove by a preponderance of the evidence the nature of the December 9 shooting (to show its similarity to the shooting the next day) and Gibson's interaction with the December 9 shooting suspects (to tie him to the December 9 shooting) in order for that conduct to be considered under Evidence Code section 1101, subdivision (b). (People v. Thomas, supra, 14 Cal.5th at p. 364 ; People v. Leon, supra, 61 Cal.4th at p. 597 ["[A] jury may properly consider Evidence Code section 1101(b) evidence only if the conduct has been proven by a preponderance of the evidence."].) Perry's and Detective Baguinat's testimony about the December 9 shooting and Gibson's interactions with Perry and Woodson took one and a half trial days out of a total of six days of trial testimony. Although this was a substantial amount of time, the parties stipulated to limit the evidence to be presented about the December 9 shooting, and the trial court limited the prosecutor to one video of the shooting. Under these circumstances, there was no undue consumption of time. (See Thomas, at pp. 364-365 [admission of extensive evidence regarding Texas murder committed by defendant, which constituted half of trial testimony, was not excessive].)
Because the trial court did not abuse its discretion in admitting the December 9 evidence, there was no violation of Gibson's constitutional rights to due process, a fair trial, and a reliable jury verdict. (People v. Valdez, supra, 55 Cal.4th at p. 134 [admission of gang-related evidence was not statutory error, thus, it did not violate defendant's "constitutional rights to due process, a fair trial, and a reliable determination of guilt"].)
B. The Jury Instruction on Other Acts Evidence Was Proper
1. The jury instruction
The trial court instructed the jury with modified CALCRIM No. 375: "The People presented evidence of other behavior by the defendant that was not charged in this case, specifically: being present at 62nd and San Pedro on December 9, 2020, before and/or after events related to the killing of Tyrone Wofford, and interacting with several suspects related to that killing while at that location. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the other acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disregard this evidence entirely."
The court continued, "If you decide that the defendant committed the other acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether: the defendant acted with the intent to kill in this case; or the defendant had a motive to commit the offenses alleged in this case. In evaluating this evidence, consider the similarity or lack of similarity between the other acts and the charged offenses. Do not consider this evidence for any other purpose. Do not conclude from this evidence that the defendants have a bad character or are disposed to commit crimes. If you conclude that the defendant committed the other acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder, attempted murder, or conspiracy to commit murder. The People must still prove each charge, and any intent or mental state necessary for that charge, beyond a reasonable doubt."
2. Governing law and standard of review
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.""' (People v. Rangel (2016) 62 Cal.4th 1192, 1223; accord, People v. Whalen (2013) 56 Cal.4th 1, 68.) "Even if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly." (People v. Castillo (1997) 16 Cal.4th 1009, 1015; accord, People v. Ocegueda (2023) 92 Cal.App.5th 548, 557.)
"'A claim of instructional error is reviewed de novo. [Citation.] An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed "in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner."'" (People v. Lewis (2023) 14 Cal.5th 876, 900; accord, People v. Mitchell (2019) 7 Cal.5th 561, 579.)
3. The trial court correctly instructed the jury with modified CALCRIM No. 375
Gibson contends CALCRIM No. 375, as modified, was erroneously given because Gibson's interactions with the December 9 shooting suspects did not qualify as "bad acts" under Evidence Code section 1101. But Evidence Code section 1101, subdivision (b), is not limited to prior "bad acts" or uncharged offenses. (See Evid. Code, § 1101, subd. (b) ["Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity . . .) other than his or her disposition to commit such an act."] (italics added); People v. Wills-Watkins (1979) 99 Cal.App.3d 451, 456, fn. 1 ["A prior act need not be a crime to be admissible under Evidence Code section 1101."]; People v. Harris (1978) 85 Cal.App.3d 954, 958 [Evidence Code section 1101 is not limited to "'uncharged offenses'"; rather, "it embraces also 'other acts'"]; People v. James (1976) 62 Cal.App.3d 399, 407 [Evidence Code section 1101 "is not confined to evidence of crimes"].)
The Supreme Court has found CALJIC No. 2.50, the CALJIC version of the standard CALCRIM No. 375 instruction, to be "in general, a correct statement of the law." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 436; see People v. Wilson (2005) 36 Cal.4th 309, 328.)
Gibson further asserts modified CALCRIM No. 375 was an argumentative pinpoint instruction that invited the jury to draw speculative inferences favorable to the prosecution. It was not. The trial court instructed the jury it could only consider evidence of Gibson's interactions with several of the Wofford shooting suspects at the 62nd Street location on December 9 if those facts were proven by a preponderance of the evidence. Further, the instruction told the jurors that they "may, but are not required to, consider that evidence for the limited purpose" of motive or intent, and not for any other purpose (and, specifically, not to show bad character or a predisposition to commit the crime). If the other acts evidence "failed, logically, to establish a particular question as to" Gibson, "the jury would simply and properly conclude that evidence was not convincing and disregard it." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 437.)
Pinpoint instructions "'relate particular facts to a legal issue in the case or "pinpoint" the crux of a defendant's case, such as mistaken identity or alibi.'" (People v. Gutierrez (2009) 45 Cal.4th789, 824; accord, People v. Zemek (2023) 93 Cal.App.5th 313, 346.)
Likewise, there is no merit to Gibson's assertion that the instruction lowered the prosecution's burden of proof. The instruction admonished the jury that Gibson's December 9 conduct was not sufficient to prove Gibson committed the charged offenses, and the People had to prove the charges and any necessary intent or mental state beyond a reasonable doubt. We presume the jury understood and followed this instruction. (People v. Ramirez (2021) 10 Cal.5th 983, 1002 ["'It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court's instructions[.]'"]; People v. Gonzales (2011) 51 Cal.4th 894, 940 [same].) The trial court did not err in instructing the jury with modified CALCRIM No. 375.
For the same reasons we reject Gibson's argument that instructional error in giving the modified CALCRIM No. 375 instruction violated his constitutional rights.
C. The Jury Instruction on Flight Was Supported by the Evidence
Over Gibson's objection, the trial court instructed the jury with modified CALCRIM No. 372: "If the defendant fled or tried to flee immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself. This is a question of fact for the jury to determine."
Section 1127c requires the court to give a flight instruction in a criminal trial "where evidence of flight of a defendant is relied upon as tending to show guilt" if the flight is "immediately after the commission of a crime, or after he is accused of a crime." CALCRIM No. 372 "is merely a distillation of the instructional duty imposed on the trial court by . . . section 1127c." (People v. Pettigrew (2021) 62 Cal.App.5th 477, 499; accord, People v. Price (2017) 8 Cal.App.5th 409, 454 [CALCRIM No. 372 is consistent with section 1127c].) A flight "instruction is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt." (People v. Howard (2008) 42 Cal.4th 1000, 1020; accord, People v. Cage (2015) 62 Cal.4th 256, 285.)
Section 1127c provides in full, "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
Gibson argues the jail call in which Mario told Gibson that he was wondering why Gibson fled shows that he did not flee out of consciousness of guilt. According to Gibson, if Mario and Gibson committed the December 10 shooting, Mario would not have questioned why Gibson fled. However, "[t]o obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.) Here, the prosecution presented evidence Gibson fled in his vehicle after Officer Delgadillo attempted a traffic stop, and then after Gibson crashed his vehicle, he ran from the officers. This evidence supported the flight instruction because the jury "could reasonably infer that defendant fled when he concluded that suspicion had focused on him." (People v. Howard, supra, 42 Cal.4th at p. 1021 [instruction on flight was proper where defendant did not return home after victim's body was discovered near his room]; accord, People v. Carter (2005) 36 Cal.4th 1114, 1182 [instruction on flight warranted where "defendant left California in the days immediately following the charged offenses and was in possession of the vehicle belonging to murder victim . . . when he was arrested in Arizona"].)
It is unclear whether this jail call comment about Gibson's flight took place after Gibson's arrest on December 11, 2020 on an unrelated matter or his arrest on January 21, 2021 for the December 10 shooting. For purposes of determining whether the flight instruction was properly given, we assume the jail call took place after Gibson's arrest for the December 10 shooting.
Gibson also claims the flight instruction is an unconstitutional pinpoint instruction in the prosecution's favor that lessened the burden of proof and discriminated against him. But as Gibson acknowledges, the Supreme Court has upheld the flight instruction set forth in CALJIC No. 2.52, which, similar to CALCRIM No. 372, provides, "The flight of a person immediately after the commission of a crime is not sufficient in itself to establish his guilt but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.'" (People v. Cage, supra, 62 Cal.4th at p. 285.) The court in Cage found CALJIC No. 2.52 "'does not "create an unconstitutional permissive inference or lessen the prosecutor's burden of proof."'" (Cage, at pp. 285-286; accord, People v. Carrasco (2014) 59 Cal.4th 924, 967-968.)
Similarly, the Courts of Appeal have rejected constitutional challenges to CALCRIM No. 372. (People v. Pettigrew, supra, 62 Cal.App.5th at pp. 500-502 [CALCRIM No. 372 did not violate defendant's due process right to a fair trial by relieving "'the state of proving every element of the charged crime[s] beyond a reasonable doubt'"]; People v. Price, supra, 8 Cal.App.5th at p. 456 [CALCRIM No. 372 "does not lighten the prosecution's burden of proof beyond a reasonable doubt" and "is neither argumentative nor unconstitutional"]; People v. Paysinger (2009) 174 Cal.App.4th 26, 31 ["it is not reasonably likely the jury misunderstood the phrase 'the crime was committed' in CALCRIM No. 372 in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt"].)
Gibson also contends CALCRIM No. 372 is premised on "racially disparate policing that has created reasons for innocent people of color to flee." Gibson asserts he fled because he is Black and an admitted gang member, not because of consciousness of guilt. However, the instruction told the jury that if the defendant fled, or tried to flee, "it is up to you to decide the meaning and importance of that conduct." Thus, it was up to the jury to decide whether Gibson's flight one month after the December 10 shooting reflected consciousness of guilt or occurred because he is Black and a gang member. Further, the flight instruction made clear that "evidence that the defendant fled or tried to flee cannot prove guilt by itself" and "is a question of fact for the jury to determine." The trial court did not err in instructing the jury with modified CALCRIM No. 372.
Gibson does not argue his conviction violated the Racial Justice Act. (See § 745, subd. (a) ["The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin."]; Finley v. Superior Court (2023) 95 Cal.App.5th 12, 19-20 [discussing procedure for defendant to seek relief for violation of Racial Justice Act].)
D. Substantial Evidence Supports the Convictions
1. Standard of review
"When a defendant challenges the sufficiency of the evidence for a jury finding, we review the entire record in the light most favorable to the judgment of the trial court. We evaluate whether substantial evidence, defined as reasonable and credible evidence of solid value, has been disclosed, permitting the trier of fact to find guilt beyond a reasonable doubt." (People v. Vargas (2020) 9 Cal.5th 793, 820; accord, People v. Penunuri (2018) 5 Cal.5th 126, 142 ["'To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.'"].) "'"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence."'" (Penunuri, at p. 142; accord, People v. Mendez (2019) 7 Cal.5th 680, 703.)
"'"The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence."'" (People v. Vargas, supra, 9 Cal.5th at p. 820; accord, People v. Rivera (2019) 7 Cal.5th 306, 324.) "'We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri, supra, 5 Cal.5th at p. 142 ["'A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support'" the jury's verdict.'"].)
2. Substantial evidence supports the jury's finding Gibson participated in the December 10 shooting
Gibson contends his convictions of murder, attempted murder, and conspiracy to commit murder must be reversed because there was insufficient evidence to support the jury's finding he was involved in the December 10 shooting as a shooter, an aider and abettor, or a co-conspirator. There was substantial evidence.
A surveillance video taken on December 9 showed Gibson arriving at the 62nd Street location in his blue Audi, interacting with Woodson and Perry, and leaving approximately an hour before the Wofford shooting. Detective Johnson testified the blue Audi in the December 9 surveillance video of the 62nd Street location had a similar shape to the vehicle she saw in the December 10 surveillance video of the 70th Street location, including the shape of the windows and racks on top of the vehicle. And according to Detective Johnson, the blue Audi shown in the December 10 video was similar to the SUV seen in the body camera video from Gibson's December 11 detention on an unrelated matter in "body style, type, and shape." In addition, the blue Audi was parked in the same location in the December 10 and 11 videos. Moreover, on January 21, 2021 Gibson fled from police in a blue Audi that the DMV record showed was registered to him as the owner. And, as discussed, the jury could reasonably infer that Gibson's flight one month after the December 10 shooting reflected consciousness of guilt.
Gibson's cell phone activity also connected him to the December 10 shooting. At 10:36 p.m. on December 10 Gibson's cell phone made an outgoing call 10 seconds before Mario received an incoming call, and the two cell phones were in close geographic proximity to each other and the area of the shooting. Detective Johnson opined based on this cell phone evidence that Gibson and Mario were casing the 91st building one hour before the December 10 shooting (which took place around 11:45 p.m.).
A surveillance video then placed the blue Audi at the 70th Street location a few minutes after 11:00 p.m. The blue Audi reversed out of the driveway at the location, collided with the black sedan used in the December 10 shooting, made a U-turn, and then parked. Although detectives acknowledged they could not see the face, hairstyle, or clothing of the individual that exited the Audi, the "tall, slender individual" had a similar build and stature to Gibson. Surveillance video showed the individual walking across the street and entering the driver's seat of the red SUV, which was the second vehicle used in the December 10 shooting. Gibson suggests (as he did in closing argument) that he was not the driver of the blue Audi because it was reasonable to infer the driver was inexperienced in driving the blue Audi as evidenced by the collision with the black sedan. But that was only one inference from the evidence, which the jury was free to reject.
Significantly, the keys found at the crime scene tied Gibson to the December 10 shooting. Surveillance video showed five shooters standing by the red SUV and black sedan near the 91st Street building as they shot in the direction of the candlelight vigil. Shortly after the shooting, Officer Woods recovered a key ring containing an Audi key and house key from the area where the red SUV had parked during the shooting. Gibson contends video evidence left unclear where the keys were located prior to being kicked by another police officer, and that officer did not testify at trial. But Officer Woods, who was at the crime scene shortly after the shooting, testified he noticed the keys when an officer kicked them. The jury could reasonably infer the keys were present at the crime scene when the officer kicked them. Other evidence confirmed the recovered keys belonged to Gibson. Following Gibson's arrest in January 2021, the police tested the recovered Audi key on Gibson's blue Audi. The key could not start the ignition of Gibson's vehicle, but it opened the car door and operated the windows. The recovered house key opened the front door to Gibson's residence.
Gibson relies on Officer Fernandez's testimony that gang members have been known to share cars as evidence supporting an inference that Gibson gave his Audi key to another gang member. But this inference is inconsistent with evidence that Gibson searched for a locksmith on his cell phone at 12:10 a.m. on December 11, approximately 25 minutes after the shooting and after the red SUV returned to the 70th Street location at about 11:53 p.m. And Gibson said to Officer Pacheco later on December 11 that he had "just lost [his] car keys." The jury could therefore reasonably infer that it was Gibson, and not another gang member, who lost the keys during the December 10 shooting.
Gibson also contends his December 13 jail call with Mario, in which they discussed towing Gibson's vehicle to an Audi dealer for a replacement key, reasonably supports the inference that Gibson had nothing to hide with respect to his Audi key because Gibson would have known that law enforcement would listen to the jail call. But the jury could have alternatively inferred from the December 13 jail call that Gibson lost his Audi key and tasked Mario with having an Audi dealer make a replacement key. Indeed, Detective Johnson opined that the Audi key in Gibson's possession at the time of his January 21, 2021 arrest "appeared to be a newer key fob, although the vehicle was a 2008." As for the jail calls referencing a "Jason," the jury could reasonably infer that Gibson and Mario used "Jason" as a code word for a firearm based on the context of the calls as suggested by Detective Johnson.
Finally, Gibson points to the fact the jury found not true the allegation that Gibson personally used a firearm as to count 1 (murder of Treadway) and count 2 (attempted murder of Caldwell). But the jury could have found Gibson was one of the shooters (or an aider and abettor), but there was insufficient evidence that he personally used a firearm in shooting Treadway or Caldwell. There were five shooters, and the police collected 58 shell casings and 11 bullet fragments at the scene, but no guns were found after the shooting that tied a specific firearm to Gibson.
E. The Trial Court Did Not Abuse Its Discretion in Denying Gibson's Motion for New Trial
1. Trial court proceedings
Prior to trial Gibson and Mario moved to exclude any mention of the alleged gang membership, moniker, or gang tattoos, or in the alternative, to bifurcate presentation of the gang evidence. Mario's attorney argued "gang membership evidence [was] not pertinent to identification" with respect to the murder, attempted murder, and conspiracy counts, and it was more prejudicial than probative under Evidence Code section 352. The prosecutor responded that the gang evidence was admissible to prove identity, intent, and motive, asserting gang evidence "explains the circumstances of the crime, the reason it was committed, why that particular house was targeted, why the victims in particular were targeted. The crime itself makes no sense without the jury hearing some evidence about gangs, the defendants' gang membership, the victims' gang membership, that house, that location."
Gibson's attorney did not explain how the court could bifurcate presentation of the gang evidence given the People's intent to rely on the gang evidence to prove the substantive charges.
The trial court denied the motion to exclude and request for bifurcation, reasoning the gang evidence had "extensive relevance" to motive as to conspiracy to commit murder. The court stated it would give a limiting instruction and was confident the jury would follow the instruction because "jurors are very adept at being able to consider the gang evidence for the purpose in which they are to consider it."
At the same pretrial hearing the court granted Gibson's request to exclude evidence of his criminal history and parole status.
During direct examination, the prosecutor asked Officer Delgadillo what he had been "tasked to do." Officer Delgadillo responded that he had been "provided information of a wanted suspect for a parole violation and the same individual [was] being investigated for a murder." Officer Delgadillo later testified that when Gibson's parked car moved, "we conducted a traffic stop for those reasons of the parole violation and the investigating of the murder."
At a sidebar outside the presence of the jury, Gibson's attorney argued Officer Delgadillo had mentioned Gibson's parole violation in contravention of the court's order. The prosecutor stated he spoke to Officers Woods and Delgadillo in the morning. He did not recall if he told Officer Delgadillo "not to say 'parole'", but he "did specifically say that to Officer Woods at length, more than once, while Officer Delgadillo was right there."
Gibson moved for a mistrial and dismissal of the case with prejudice based on prosecutorial misconduct. The court denied both motions, stating, "The court has already expressed its displeasure with the fact that this witness brought up the parole violation after the court made it clear that no witness was to mention that. However, given what I expect will be the balance of the evidence in this case, given what's already come out, given the fact that-whether we like it or not, the fact that somebody is on parole is really not that big of a deal in the greater scheme of things. So I don't think that the prejudice which would warrant a dismissal has accrued. However, I am going to note for the record that these type of instances and these violations, that the prejudice can add up."
At the request of counsel for Gibson and Mario, the court struck Officer Delgadillo's two references to Gibson's parole violation. The court admonished the jury, "That testimony is stricken. And you're not to consider it for any purpose as you deliberate the issues in this case." The trial court then asked if the jurors understood the instruction to disregard the stricken testimony; if they were "okay with that"; and if they could commit to following the instruction. The jurors answered in the affirmative as to each question. After the parties rested, the court again instructed the jury, "If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose."
Following the jury's guilty verdicts, Gibson moved for a new trial, arguing the prosecutor repeatedly violated the trial court's in limine ruling excluding evidence of Gibson's criminal history and parole status. Gibson argued the first violation of the court's in limine ruling occurred during opening statements when the prosecutor played a video from Officer Covarrubias's body camera from December 11, 2020 in which an officer referred to Gibson's warrant. Gibson asserted the second violation occurred during the direct examination of Officer Covarrubias when the prosecutor played the same video. The court acknowledged "there was a brief reference made to a warrant" in the video, but the transcript of the video did not include any reference to Gibson's outstanding warrant. Gibson argued additional violations occurred when Officer Delgadillo mentioned Gibson's parole status twice during direct examination.
At the hearing on the motion for new trial, Gibson's attorney argued, "[T]he fact that his gang membership was paraded throughout this trial in such a substantial way, on top of the jury constantly being reminded that he had a criminal history in violation of the [court order], I think made this trial unfair." The prosecutor responded, "[T]his was a very clearly gang motivated shooting and murder and the jury properly heard evidence to understand the crime." Further, Gibson was not prejudiced by any evidence of his parole status because the jury "didn't hear anything about the underlying conviction" or the facts "for why he was on parole."
The court denied the motion, explaining the gang evidence was admitted for limited purposes, the court instructed the jury "not to assume that the defendants were more prone to commit crime simply if there was evidence of gang affiliation or gang membership," and the court "provided instructions which limited the use of that evidence." The court found the brief "fleeting" references to Gibson's parole status were not "prejudicial to the point where it impacted Mr. Gibson's right to a fair trial."
2. Standard of review
Under section 1181, subdivision (5), a trial court may grant a new trial when there is trial or instructional error or prosecutorial misconduct. (See People v. Ault (2004) 33 Cal.4th 1250, 1260.) "'"'"'We review a trial court's ruling on a motion for new trial under a deferential abuse-of-discretion standard.' [Citations.] '"A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion."'"'"'" (People v. Parker (2022) 13 Cal.5th 1, 88; accord, People v. Hoyt (2020) 8 Cal.5th 892, 957.)
Section 1181, subdivision (5), provides that a court may grant a new trial "[w]hen the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury."
Gibson urges us to review de novo the trial court's denial of his motion for new trial, relying on People v. Ault, supra, 33 Cal.4th at pages 1261 to 1264, in which the Supreme Court observed it had previously applied a de novo standard of review to orders denying a motion for new trial where the claimed error implicated the defendant's right to a fair trial (for example, juror misconduct). More recently, however, the Supreme Court applied an abuse of discretion standard where the defendant moved for a new trial based on a witness testifying to something the court had ordered excluded. (See People v. Rices (2017) 4 Cal.5th 49, 92-93 [applying abuse of discretion standard where one witness testified to defendant's reputation of being a gang member and another witness testified about defendant bragging, both in violation of court's orders].) Here, as in Rices, we review the denial of the motion for new trial based on improper witness testimony for an abuse of discretion.
3. The trial court did not abuse its discretion
Gibson contends the trial court erred in denying his motion for new trial in light of (1) the erroneous admission of excessive gang evidence, including the gang expert's testimony and testimony about the December 9 shooting; and (2) instructional error in giving CALCRIM No. 375. Because the trial court did not abuse its discretion in admitting the gang and other acts evidence to prove motive and intent, the trial court did not abuse its discretion in rejecting those grounds as the bases for a new trial.
In addition, the trial court reasonably found the references to Gibson's warrant and parole status were fleeting. Further, with respect to the video played during the prosecutor's opening statement (with a reference to the warrant), any prejudice was mitigated by the court instructing the jury that remarks made by the attorneys in opening statements "are not evidence." Moreover, the court struck Officer Delgadillo's two references to Gibson's parole violation, instructed the jury to disregard the stricken testimony, and obtained three assurances from the jurors that they would follow the court's instruction. After the parties rested, the court reiterated in its instruction to the jury that the jury must not consider any stricken testimony for any purpose. We presume the jury understood and followed the instruction. (People v. Ramirez, supra, 10 Cal.5th at p. 1002; People v. Gonzales, supra, 51 Cal.4th at p. 940.)
Gibson argues he was denied a fair trial because of the cumulative errors involving the admission of evidence and jury instructions. Because we reject the individual claims of error, there is no cumulative error. (People v. Ramirez, supra, 10 Cal.5th at p. 1020 ["'Because we have found no error, there is no cumulative prejudice to evaluate.'"]; People v. Lopez (2018) 5 Cal.5th 339, 371 [same].)
DISPOSITION
The judgment is affirmed.
We concur: SEGAL, Acting P. J., MARTINEZ, J.