Summary
In People v. Thompkins (2020) 50 Cal.App.5th 365, 399, we recently applied the Aledamat standard of review, explaining "the question is not whether we think it clear beyond a reasonable doubt that the defendants were actually guilty... based on the valid theory, but whether we can say, beyond a reasonable doubt, the jury's actual verdicts were not tainted by the inaccurate jury instruction.
Summary of this case from People v. WeithOpinion
A141375
05-01-2020
The PEOPLE, Plaintiff and Respondent, v. Clem THOMPKINS et al., Defendants and Appellants.
I. INTRODUCTION
Late on Easter night in 2011, gunfire erupted at Sweet Jimmie's bar and restaurant in Oakland, leaving two people dead and five wounded. Defendants Clem Thompkins and Lamar Fox both were convicted of two counts of first degree murder for the benefit of a criminal street gang, with firearm discharge enhancements, a multiple-murder special circumstance, and five counts of attempted murder with great bodily injury findings, gang enhancements, and firearm discharge enhancements. Thompkins was charged and convicted as the shooter and Fox as an accomplice. Both men received the same sentence: life in prison without possibility of parole, plus 224 years to life.
After Thompkins was sentenced and had appealed, when Fox came on for sentencing, Fox told the court under oath he was the actual shooter and Thompkins knew nothing about Fox's intentions. On appeal and in a separate petition for writ of habeas corpus (In re Thompkins on Habeas Corpus (July 16, 2019, No. A147135)), Thompkins claimed this new testimony, and his attorney's professionally incompetent reaction to it, entitle him to a new trial. Thompkins's habeas petition presented additional new evidence that Fox was the shooter in the form of a declaration by another gang member who was with Fox and Thompkins that night.
We conclude in the direct appeal that Thompkins's trial counsel was not ineffective for failing to bring the matter before the court in a motion to recall the sentence followed by a new trial motion because Thompkins has failed to show prejudice. The remaining arguments that the newly discovered evidence calls for a new trial and related ineffective assistance of counsel arguments were considered in the habeas matter. We issued an order to show cause returnable before the superior court and stayed the appeal pending the outcome of the habeas proceeding. The superior court judge who presided over the trial, Judge Vernon J. Nakahara (now retired), also presided over a three-day evidentiary hearing on the issues raised in the habeas petition, after which he filed a 55-page opinion denying the petition and finding Fox's posttrial confession not credible.
Because this case has been pending for an unusually long time, several posttrial legal developments have affected our analysis. We address first the issues raised based on posttrial case law and statutory amendments to Penal Code sections 188, 189, 12022.5 and 12022.53. Defendants also raise individually or jointly evidentiary, instructional and sentencing issues, ineffective assistance of counsel, claims of clerical error, and cumulative prejudice. We reject most of these claims either on the merits, as forfeited, or as harmless error.
Further statutory references, unless otherwise indicated, are to the Penal Code.
We do conclude, however, that (1) the five attempted murder convictions and related enhancements must be reversed for both defendants based on the erroneous giving of a flawed kill zone instruction under People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ) and other authority; (2) there was instructional error under People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 ( Chiu ) as to Fox, but it was harmless under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 ( Chapman ); (3) introducing evidence that defendants admitted their gang affiliation at jail intake violated the defendants’ privilege against self-incrimination under People v. Elizalde (2015) 61 Cal.4th 523, 189 Cal.Rptr.3d 518, 351 P.3d 1010 ( Elizalde ), but it was harmless beyond a reasonable doubt; (4) there was some evidentiary error under People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Sanchez ), which was harmless even under Chapman due to the wealth of admissible evidence establishing the gang enhancements; (5) arguments based on the statutory amendments to sections 188 and 189 must be raised by petition in the trial court (§ 1170.95); (6) the special-circumstance finding applied only to the charge under count 2, and an amended abstract of judgment must so reflect; (7) gang enhancements (§ 186.22) should not have been imposed against Fox on counts 3 through 7 and must not be imposed if Fox is again convicted of these counts on remand ( § 12022.53, subd. (e)(2) ); and (8) the case must be returned to the trial court so the judge may exercise his discretion whether to impose or strike the firearm enhancements on counts 1 and 2 under section 12022.53, in light of an amendment to section 12022.53, subdivision (h). Only the discussion of items (1) and (4) above will appear in the published portion of the opinion.
II. BACKGROUND
A. Overview
Sweet Jimmie's was a family-run, second-generation Black-owned restaurant and bar located on Broadway, between Third and Fourth Streets, near Oakland's Jack London Square. On Easter Sunday 2011, as Sunday turned into Monday, many of the remaining 10 to 20 guests in the bar knew each other or knew the owner. About 12:45 a.m. on Monday, April 25, 2011, a late model white Toyota Camry with no license plates double-parked outside Sweet Jimmie's. There were four men in the car. Three of them got out. The driver stayed in the car.
One of the men, whose hair was in dreadlocks, went to Sweet Jimmie's front door and shortly had a brief shoving match with some of the customers of the bar. He was ejected by some of the bar's patrons, and he left the bar entryway. By most accounts, the driver then got out of the car with an assault rifle in hand, walked to the entrance of Sweet Jimmie's, and opened fire on the restaurant's guests. Two people were killed and five others wounded.
The prosecution's theory was that the men in the car belonged to the Lower Bottoms street gang, and the shooting resulted from an incident earlier that evening near Sweet Jimmie's in which a member of the rival Acorn gang flashed a handgun at one of the men. The four then went and got an assault rifle from Fox's house and returned to Sweet Jimmie's, looking to kill members of the Acorn gang. They did not find their rivals at the bar; the people shot were not gang members. But the scuffle involving the man in dreadlocks was sufficient to trigger a violent reaction from the driver of the car, according to a gang expert, because a retaliatory attack would increase the public's fear of the gang and give the shooter increased status among gangsters.
B. The Gang Expert's General Background Testimony
Oakland Police Officer Steve Valle testified as an expert on West Oakland gangs. Valle identified three primary West Oakland gangs, each reflecting the name of the neighborhood in which it was based: Lower Bottoms, Ghost Town, and Acorn. The gangs were mutual enemies and were at war. Lower Bottoms was a criminal street gang with several subsets based on the street corner they claimed, such as the Center gang and Campbell Village Gangsters. Lower Bottoms also contained a clique called the 30 Gang, which took its name from high capacity magazines that hold 30 rounds of ammunition. Acorn identified with the letter "A" and members sometimes wore Oakland A's or Atlanta Braves baseball caps. Lower Bottoms claimed the letters "L" and "B" for Lower Bottoms and "C" for "Center" (a street in the Lower Bottoms neighborhood of Oakland and a gang subset). Members sometimes wore Chicago Cubs baseball caps.
In April 2011, Lower Bottoms had 50 or more members. Lower Bottoms was an informal gang with no identifiable hierarchy, structure, or bylaws. Even without a formal structure, there were members of the gang who were shot-callers, who influenced the direction of the gang and told other members what to do. If a member disobeyed a shot-caller there might be a violent response. Gang members build respect for themselves and the gang by committing acts of violence in the company of other members.
C. Testimony of Witnesses Inside Sweet Jimmie's
Several patrons of Sweet Jimmie's testified at trial that a Black man with dreadlocks approached the entrance to the bar. One witness described him as wearing jeans, a black hooded sweatshirt, and a Chicago Cubs baseball cap, carrying a water bottle in his left hand. More than one customer saw a short-haired Black man with him, and another witness told the police there were one or two others with him.
Several witnesses described an incident in which the man with dreadlocks became engaged in a scuffle with some patrons near the front door of the bar. Some of them said the dispute began when the man with dreadlocks "flipped" or tugged on someone's neck chain or medallion, perhaps trying to pull it off. Those witnesses were David Ward, the owner of Sweet Jimmie's; Miah Sims, a regular customer at Sweet Jimmie's who was seated near the front of the restaurant with a friend, six to eight feet from the front door; Robert Baskin, an out-of-towner who frequented the bar while working in Oakland and who was seated 15 to 20 feet from the door; and Ward's nephew, Robert "Piglet" Ford, who was at the back corner of the bar. Ward saw someone's shirt being lifted up during the scuffle. For a few seconds, there was pushing and shoving. Baskin and Sims testified friends of the man with the neck chain "hemmed" up the man with dreadlocks, essentially surrounding him before pushing him out of the bar entryway. The man with dreadlocks was either pushed from or backed away from the entrance and seemed to have left the immediate area.
Less than a minute later, a man with dreadlocks appeared at the entrance to the restaurant and fired into the crowd. Sims thought it was the same man who came back and fired the shots. She identified that man as Thompkins and said he "patted down" the man wearing the medallion with his left hand before shooting. Baskin, too, thought it might have been the same man. Baskin said the man in dreadlocks came back a few seconds after he left and said, "Fuck that." The second time the man with dreadlocks appeared in the doorway and lifted his right hand, Baskin turned away and the gunfire began. Baskin did not actually see the man holding a gun that night, nor did Ward or Sims. Baskin was shot twice in the left leg, injuring him in four places. Ward was not injured.
Other witnesses said the gunman was a different man with dreadlocks. Ward saw a second man with dreadlocks approach Sweet Jimmie's from the direction of Third Street. Ward was not able to identify Thompkins from a photo lineup. Ward testified the shooter was not the same man he had seen pulling someone's neck chain, but Baskin was not sure.
Two other patrons, Carvell Stemley and Ford, also said the gunman was a second man with dreadlocks, but they testified they actually saw him come from the driver's side of the white car and approach the entrance to Sweet Jimmie's. Stemley, who had been in the bar but had not been drinking, stepped outside when he was told by his friend, Luke Waterman, there was a problem at the door. When he got outside, Stemley saw "just a lot of little commotion. Nothing too drastic." He saw two Black men, one with long dreadlocks and one with short hair. He testified he then saw a man with dreadlocks exit the driver's door of the white car and walk around the car in a "militant" way, but Stemley did not see a gun. Stemley said the second man with dreadlocks could have been Black; he was not White. Ford's testimony was more explicit. He said 10 or 15 seconds after the first man was ejected from the bar, another Black man with dreadlocks got out of the driver's side of a white car that was double-parked outside. With a semiautomatic rifle in hand, the man walked around the back of the car and approached the entrance to Sweet Jimmie's. Seconds later the shooting started. Ford heard 10 to 15 gunshots. Ford testified the gunman was not the same man he saw pulling someone's neck chain. Ford told the police that the person involved in the commotion "signaled to somebody and then the shooting happened." Neither Ford nor Stemley was hit by the bullets and neither could identify the shooter in a photo lineup.
D. The Aftermath
Altogether, seven people were hit by bullets that night. Billy Jenkins and Adam Williams (Adam) were killed. Sims was shot in her leg and pelvis. She was off work for a month, had surgery twice, and needed assistance walking for the next four months. Mandi Lee, Sims's companion, suffered a grazing wound to her calf, which left a scar. Baskin was wounded in the leg and thigh. Señorita Freeman was hit in the forearm, requiring surgery, and resulting in a plate being installed in her arm. Of the survivors, then 28-year-old Waterman suffered the most serious injuries. Shot in the head and leg, he required three operations, was in the hospital for two months, and was left with a plate in his head. Despite physical and speech therapy, his ability to speak was very limited at trial, and his right side was almost paralyzed. He could no longer use his right arm, and he walked with a limp. He could no longer write. He also had memory problems and had no memory of the shooting incident. Waterman was wearing a chain with a ring on it around his neck at the time of the shooting, which suggests he may have been involved in the scuffle at the front door. But Ford, who knew Waterman, said it was not Waterman whose chain the man with dreadlocks had tugged on.
One of the witnesses who also played a role in the events of April 24-25, 2011, bears the same surname, namely Brian Williams. When we refer simply to "Williams" we refer to Brian Williams, not Adam Williams. We refer to Adam Williams by his first name. No disrespect is intended.
When the crime scene was processed, 10 spent cartridges and one live round were found, all from a 7.62 by 39-millimeter caliber gun. No other bullet casings from a different caliber weapon were recovered. Seven of the casings were found outside the bar, and the other three were found inside. One live round (7.62 by 39-millimeter) was found on the sidewalk outside the bar. E. Discovery of the Murder Weapon and Arrest of Defendants
Three weeks after the shooting, Fox was at his mother's house when Oakland police officers executed a search warrant relating to his brother's suspected narcotics activity. The officers did not find any drugs, but they did find Fox in the same room with a modified SKS semi-automatic assault rifle, whose stock had been sawed off, to which a detachable magazine had been affixed, along with a folding bayonet. The rifle was equipped with a magazine containing ammunition, and one additional round was chambered. Fox, whose hair was in dreadlocks down to his waist, was arrested for a parole violation, and the gun was seized.
After Fox's arrest, criminalists from the Oakland Police Department Firearms Unit examined the assault rifle. They compared test-fired bullet casings from the SKS to those found at the Sweet Jimmie's crime scene. One of them testified that all 10 casings found at the scene were 7.62 by 39-millimeter caliber and at least nine, and most likely all 10, were fired from the SKS assault rifle. Because one casing did not have a primer, the criminalist could not say for sure it had been fired, but it had been cycled through the same firearm and likely had been fired from it. He also examined the one live cartridge recovered at the scene. It was the same caliber and had markings showing it had been cycled through the same firearm. He found no ballistic evidence supporting a theory that a second gun had been fired at Sweet Jimmie's.
The police had received information as early as the day after the shooting suggesting Thompkins was involved and the shooting was gang-related. In mid-May 2011, Baskin identified the shooter as Thompkins from a photo lineup, but could not identify Fox. At trial, however, he was not able to identify either defendant as the gunman, apparently because at that time neither wore dreadlocks. Baskin's testimony also called into question whether he had actually identified Thompkins as the shooter or as the man in dreadlocks involved in the initial ruckus at the front door, as Baskin, like Sims, thought they might be the same person.
On June 8, 2011, Lieutenant Tony Jones of the Oakland Police Department interviewed Sims, and she identified Thompkins's photo as the gunman at Sweet Jimmie's, and she identified him at trial. On June 15, 2011, the police arrested Thompkins for the Sweet Jimmie's shooting and two days later filed a felony complaint against him alleging he was the shooter. Lieutenant Jones and another officer interviewed him that same day. Thompkins's statement was not introduced at trial, but he told them Fox, whose nickname was "Mar Mar," was the shooter. Fox was not charged until May 15, 2012, and then only as an accomplice. F. Fox's Pretrial Statements
1. Phone Calls from Jail
Fox was arrested on the parole violation nearly a month before Thompkins was arrested. On the date of his arrest, Fox made two phone calls from jail to Thompkins. The calls were recorded and excerpts played for the jury. In the first call Fox said, "I fucked up, brah. It's a wrap brah. I just know it this time." A woman on the line asked Fox, "If you didn't do nothing, why are you saying it's a wrap?" Fox replied, "Because, man, they went in the house and found a gun and hella shit." Thompkins said "Bro, you told me you put that somewhere up already." Fox continued in self-reproach.
In the second call, Fox said to Thompkins, "I fucked up. But you feel me, bro, like I said, bro, I love you. I made the bed, I'm gonna lay in it nigger." A short time later, Thompkins told Fox, "You and that were never supposed to be in the same place. Man. You hear me?" Fox responded, "Fuck, bro. I fucked up so much." In the second call, Fox also told Thompkins that "whatever time it is, bro. Never, nigger. I ain't never, nigger, on the real nigger, if I got to go sit down, brah, you already know it's nothing." "Sitting down," Lieutenant Jones explained, means going to jail. Fox was saying "he'll do time; he won't tell; he's not going to say anything to police." To that Thompkins replied, "Ain't no snitches ride with us."
Partly because of the dynamics of the telephone calls, with Fox confessing error and apologizing to Thompkins, while Thompkins reprimanded Fox, it may be inferred that Thompkins had more status within the gang than Fox did. This was later confirmed by Christopher Nelson, one of the men in the white Toyota, who ultimately testified Thompkins was, at least by reputation, the "leader" of the Lower Bottoms gang, and by Officer Valle, who had known of Thompkins as a gang member for years. 2. Police Interviews
Lieutenant Jones interviewed Fox twice: first on June 1, 2011, and again on June 29, 2011. Both interviews were video recorded. In the first, Fox did not admit being at Sweet Jimmie's at the time of the shooting. In the second, he admitted he was at Sweet Jimmie's that night and supplied the rifle for the attack. Fox denied being the shooter and said he did not know the shooting was going to happen. Though it was not disclosed to the jury, Fox named Thompkins as the shooter. Fox did not testify at trial. A redacted version of his June 29 statement to the police was admitted into evidence and played for the jury. The trial court instructed the jury this statement was only admissible against Fox, not Thompkins. The trial court also told the jury Fox's statement had been edited and the jury was "not to speculate about portions of [his] statement that you did not hear." In the redacted recording, different segments of the interview appear as vignettes, separated by blank video, which eliminates any misperception that the action is continuous.
It appears the police induced Fox to talk by showing him a video recording of Thompkins's interview in which Thompkins claimed Fox was the shooter.
In the redacted version, Fox said he was in a brand new white four-door Camry on the night of the shooting. He went to Sweet Jimmie's, where he stopped to talk to two friends in front of the bar. While he was talking to them, he saw an "Acorn cat" standing in front of Nation's Hamburgers next door. The Acorn gang member, who was dressed all in white, had a handgun stuck in his waistband. He lifted up his shirt to expose the gun and gestured toward Fox in a challenging manner.
Fox got into the car and went "East," got the SKS assault rifle, and returned to Jack London Square. He stopped to talk to some people lined up in front of Sweet Jimmie's. He looked for Acorn gang members but did not see any. As he was talking to people in the entrance to Sweet Jimmie's, some people pushed him away. Fox said, "I knew had a weapon in the car, but there wasn't really no need for that."
The redacted recording resumed with a description of what happened after the shooting. Fox said he put the rifle ("the banger") in the same place where the police found it. Asked if he was "supposed to get rid of it," he said he had tried but had trouble selling it because buyers wanted smaller, concealable firearms. G. The Charges
Nearly a year after Thompkins was charged, Fox was also charged, and the cases were later consolidated. The district attorney charged both Thompkins and Fox with two counts of first degree murder (counts 1 and 2) (§ 187), five counts of attempted murder (counts 3 through 7) (§§ 187, 664), and one count each of felon in possession of a firearm (count 8) (§ 12021, subd. (a)(1)). Thompkins was charged solely as the shooter based on personal use of a firearm and personal intentional discharge allegations, whereas Fox was charged as an accomplice based on allegations that a principal used and discharged a firearm ( § 12022.53, subds. (b) - (e)(1) ). Great bodily injury was alleged on counts 1 through 7, as were firearm enhancements and gang enhancements. (§§ 186.22, subds. (b)(1) & (b)(5), 12022.7, subd. (a), 12022.53.) The special circumstance of multiple murders was charged on the second murder count (§ 190.2, subd. (a)(3)). It was further alleged that Thompkins had two prior convictions: one for possession of a firearm by a felon in 2009 (§ 12021, subd. (a)(1)), and one for possession of heroin for sale in 2008 ( Health & Saf. Code, § 11351 ), and Fox had two prior convictions: one for robbery in 2008 (§ 211) and one for sale of a controlled substance in 2009 ( Health & Saf. Code, § 11352, subd. (a) ). One conviction for each defendant was alleged as a prison prior (§ 667.5, former subd. (b)), and Fox's robbery conviction was alleged as a strike prior (§§ 667, subds. (e)(1), 1170.12, subd. (c)(1)) and a five-year serious felony prior (§ 667, subd. (a)(1)).
H. The Prosecution's Star Witness: Christopher Nelson
The prosecution's star witness was Christopher Nelson, one of the occupants of the white Toyota. He identified the other occupants as Thompkins, Fox, and Tyree James. Nelson testified that on April 24, 2011 (Easter Sunday), he and his friend James were hanging out and drinking in West Oakland. Around noon Thompkins and Fox, who belonged to the 30 Gang subset of the Lower Bottoms gang, drove up in a white four-door sedan. Nelson testified he was not a member of any gang and he had no gang tattoos. James had Lower Bottoms gang tattoos on his forearms, but Nelson did not think he was a member of the gang. Nelson did not spend a lot of time with Thompkins and Fox, but he was friends with James and associated with Fox and Thompkins so he could feel like he "fit in" with other people in his neighborhood. In fact, Nelson testified the day of the shooting was the first time he had met Thompkins and Fox.
Thompkins was driving and Fox was in the front passenger seat. Thompkins and Fox both had dreadlocks, while Nelson and James had short hair. Nelson and James climbed into the back seat, and the four men spent the rest of the day driving around, drinking gin and taking Ecstasy. Nelson consumed one Ecstasy pill and "a gallon" of gin and juice. By nightfall, he was very drunk, and so were the others.
Late that night the four men drove to the 300 block of Broadway, near Jack London Square. They got out of the car and talked to some girls who were in line outside Sweet Jimmie's, waiting to get in. Next door, in front of Nation's Hamburgers, Fox got into an argument with a member of Acorn, one of Lower Bottoms's rival gangs. After about 15 minutes, the four men went back to their car and drove off, with Thompkins still driving.
They drove to Fox's house in the Dubs neighborhood of Oakland, where Fox retrieved an assault rifle, which he gave to Thompkins. En route to Fox's house, Thompkins said something about "bitch ass Acorn niggas." Nelson understood Fox and Thompkins were talking about "killing the Acorn guys," though their conversation was not explicit. From Fox's house, the men drove back to downtown Oakland, looking for members of the Acorn gang. Thompkins double-parked in the middle of the street near Sweet Jimmie's. Fox, James, and Nelson got out; Thompkins stayed in the car. Nelson and James approached some girls who were standing outside Sweet Jimmie's.
Near the restaurant entrance, Fox got into an argument with some of the people waiting in line to get into Sweet Jimmie's. The Acorn member with whom he had argued earlier that night was not among them. When Nelson saw a dispute developing he said to Fox, "Let's go." At that point, Thompkins emerged from the car, holding the assault rifle in his right hand, down by his side. He walked up to Sweet Jimmie's front door and opened fire. There was no doubt in Nelson's mind that Thompkins was the gunman. He told the prosecution's investigator he was "100 percent" sure.
Other witnesses testified there was no line waiting to get into Sweet Jimmie's and the confrontation occurred in the entryway to the bar itself.
As far as Nelson knew, Thompkins made the decision to shoot on his own. Nelson's testimony differed from the first statement he gave to the police because, as we shall discuss, he originally named Fox as the shooter.
When Nelson heard the shots, he went back to the car. The other three quickly joined him. They drove away, with Fox driving. No one spoke. Nelson and James got out when they reached the Bottoms district of Oakland. "Don't say anything," Thompkins told them. The next day Nelson learned from television that two people had been killed.
A couple days after the shooting, Thompkins phoned James while Nelson was with him and again told them not to say anything. Fox was with Thompkins at the time. Nelson overheard Fox say in the background they "might got to get [Nelson]" (i.e., kill him), which scared Nelson.
For the next seven months, Nelson said nothing to the police. During that time members of 30 Gang—but not Thompkins or Fox—threatened him, beat him up, robbed him, and accused him of being a snitch. Nelson also testified one of the men who beat him up told him Thompkins had put a "green light" on killing him. Around Christmas 2011, someone tried to shoot Nelson. At trial, nearly two years later, he was still afraid of being killed. He asked to be put into a witness protection program, but at the time of trial had not been informed if his request would be granted.
Nelson was arrested in November 2011, at which point he talked to the police—but he initially told them Fox was the one who shot up Sweet Jimmie's. He later told them Thompkins was the shooter and repeated that story to the deputy district attorney in September 2013. Nelson testified he lied at first because someone (he could not remember who) told him he should say Fox was the shooter—supposedly passing on a message from Thompkins.
Nelson had been convicted of an unrelated assault with a firearm in Contra Costa County and was serving a jail sentence at the time he testified. He also had been caught with a gun when he was 18 or 19. He was not prosecuted for the Sweet Jimmie's shooting. He claimed he was testifying voluntarily in this case, was telling the truth, and had been promised nothing.
I. The Man Dressed All in White
The man dressed all in white who Fox and the others thought was an Acorn gang member turned out to be Brian Williams. Officer Valle opined that Williams was a member of the Acorn gang subset, the Gas Team. Ward identified him as having been at Sweet Jimmie's that night. Williams testified at trial that he had no gang involvement and virtually no memory of anything from the night of the shooting.
He had also been interviewed by the police two weeks after the shooting and told them he did not have a gun on him that night ("I didn't have nothing on me man"). He was "Acorn born and raised," but he had just been trying to have a good time by going to a Lil Wayne concert at Oracle Arena earlier in the evening with friends, then going to Sweet Jimmie's for dinner, and then to Kimball's nightclub for an after-concert party.
After eating, he and his friends left Sweet Jimmie's on their way to Kimball's and were standing near Nation's Hamburgers when Williams saw a white car drive by. He saw three or four men in the car and knew "it was all bad" because "them dudes ain't cool." He had been alerted about three days before the shooting to watch out for a white Camry with no license plates, which was associated with Lower Bottoms. Williams and his friends went to Kimball's after seeing the white car.
The jury asked to have the DVD of Williams's police interview delivered to the jury room during deliberations, as well as those of Fox's June 29, 2011 interview and the recorded telephone calls he placed from jail. The jury also asked for and received a readback of Nelson's testimony about who was involved in the "two arguments."
J. The Verdicts
The jury found Thompkins guilty of two counts of first degree murder for the benefit of a criminal street gang (§§ 186.22, subd. (b)(5), 187), with personal use of a firearm, personal intentional discharge, and death or great bodily injury resulting from personal intentional discharge of a firearm ( §§ 12022.5, subd (a), 12022.7, subd. (a), 12022.53, subds. (b), (c) & (d) ). The jury found Fox guilty of two counts of first degree murder for the benefit of a criminal street gang (§§ 186.22, subd. (b)(5), 187), in which a principal used a firearm, intentionally discharged it, and thereby caused great bodily injury or death ( §§ 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b), (c), (d) & (e)(1) ). Thus, the jury agreed with the prosecutor's theory that Thompkins was the shooter and Fox an accomplice.
The jury also convicted each defendant of five counts of attempted murder with great bodily injury, and with gang and firearm discharge enhancements. (§§ 186.22, subd. (b)(1), 187, 664, 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b), (c), (d) & (e).) Both Thompkins and Fox were convicted of possession of a firearm by a felon. Both defendants admitted their prior convictions outside the jury's presence.
Because the shooting was a gang offense, section 12022.53, subdivision (e)(1) made Fox subject to the same 25-year-to-life enhancement penalty as the shooter ( § 12022.53, subds. (b), (c), (d) & (e)(1) ), except, as we shall discuss, he was not subject to a gang enhancement in addition ( § 12022.53, subd. (e)(2) ), which was imposed in error on counts 3 through 7. The jury found defendants were subject to a multiple-murder special-circumstance penalty on count 2, which subjected both defendants to a term of life without possibility of parole. (§ 190.2, subd. (a)(3).)
K. The Sentencing and Fox's Confession
Defendants were sentenced in separate hearings. Thompkins was sentenced to life without possibility of parole (LWOP), plus 224 years to life on March 19, 2014. He filed a notice of appeal the same day. At Fox's sentencing three weeks later, there was some talk of Fox having turned down the prospect of receiving a resolution of imprisonment for less than LWOP. Fox said he was not interested in any such deal, insisted on proceeding to sentencing, and after being sentenced to LWOP, plus 224 years to life, he asked permission to address the court.
Fox confessed he was the shooter at Sweet Jimmie's and accepted sole responsibility: "Clem Thompkins never shot anybody. Clem Thompkins never did anything. Clem Thompkins was at the front of the door where people said they seen him at. It was me who got out of the car with the gun because I thought I saw somebody inside Sweet Jimmie's with a gun. And I was drunk. I wasn't thinking straight. I just want the court to know that Clem Thompkins never did anything. It was all me. It was all my thinking. Nobody didn't never knew I was going to do it. I made a wrong judgment call. Nobody. Nobody never knew it. They never knew I was going to shoot or do anything." The judge commented, "if that's believable, that might change things," and agreed to take Fox's testimony at the request of Thompkins's trial counsel.
Fox was placed under oath, subject to cross-examination, and described the events much as Nelson did, except he claimed he was the driver of the white car, not Thompkins. Under oath, and against counsel's advice, Fox claimed to have been the shooter and said none of the others knew what he was going to do. He also claimed Thompkins was the one who got into the initial scuffle with the people in Sweet Jimmie's doorway.
After placing Fox's testimony on the record, Judge Nakahara gave no opinion on Fox's credibility, unless his failure to recall Thompkins's sentence has some communicative value, perhaps implicitly suggesting he found Fox's confession unworthy of belief. Thompkins's attorney said he planned to file a motion for a new trial, but the court told him it was too late because Thompkins had already filed a notice of appeal. Thompkins’ lawyer continued to indicate he might file "some kind of motion," but no such motion ever materialized. Fox also appealed.
L. Thompkins's Petitions for Writ of Habeas Corpus
In addition to appealing his convictions, Thompkins also filed two petitions for writ of habeas corpus in this court, one of which has already been denied after an order to show cause returnable before the superior court (A147135). The other, filed August 20, 2019 (A158110) is pending before this court and will be resolved by separate order. M. Issues on Appeal
Several of the issues raised by defendants invoke changes in the law after judgment was imposed, based on new authority from the Supreme Court or statutory amendment while the appeal was pending. We will address those issues first.
The most recent new development claimed by defendants to affect this appeal—and the most significant—was the Supreme Court's restriction on use of a so-called "kill zone" instruction ( CALJIC No. 8.66.1, 1 CALCRIM No. 600 ), such as that given in this case. ( Canizales , supra , 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Fox also argues his first degree murder convictions cannot stand under Chiu , supra , 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 because he was not the shooter and the jury could have relied on the natural and probable consequences doctrine to convict him, without regard to his individual state of mind. Incongruously, relying on Fox's confession at his sentencing, Thompkins claims he was the nonshooter and was entitled to a reduction in the first degree murder counts to second degree murder under Chiu . Both defendants claim their admissions of gang membership at jail intake were improperly allowed into evidence under Elizalde, supra , 61 Cal.4th 523, 189 Cal.Rptr.3d 518, 351 P.3d 1010.
In addition to postjudgment case law, defendants interpret some postjudgment statutory changes as affording them relief by retroactive application. Senate Bill No. 1437 (Stats. 2018, ch.1015, § 2) amended sections 188 and 189 so, effective January 1, 2019, the rules relating to felony murder and accomplice liability in murder cases are now more lenient for nonkillers. Fox claims the new rule requires a reduction in criminal culpability for his role in the crimes. In addition to that amendment, Senate Bill No. 620 (Stats. 2017, ch. 682, § 2), effective January 1, 2018, amended section 12022.53 so as to grant a sentencing judge discretion either to impose or dismiss the firearm enhancements provided under that section, whereas imposition of the enhancements had previously been mandatory. (Compare § 12022.53, subd. (h) with § 12022.53, former subd. (h).) Both defendants claim they are entitled to a remand for resentencing in light of that amendment.
In addition to claims of evidentiary error under new legal authority, Thompkins makes a more routine claim under Bruton v. United States (1968) 391 U.S. 123, 135-136, 88 S.Ct. 1620, 20 L.Ed.2d 476 ( Bruton ) and People v. Aranda (1965) 63 Cal.2d 518, 530-531, 47 Cal.Rptr. 353, 407 P.2d 265 ( Aranda ) based on the admission into evidence of a redacted video of Fox's June 29, 2011 interview with the police. Thompkins also claims Investigator Phillips should not have been allowed to testify that he believed Nelson was telling the truth, and Nelson should not have been allowed to testify that he heard Thompkins had given the "green light" to kill him. With respect to instructional error, both defendants claim the court erred in failing to give voluntary manslaughter and attempted manslaughter instructions. Thompkins also argues that the jury should have been instructed that Fox was potentially an accomplice, and as such, his testimony must be viewed with caution. Fox argues he was entitled to an instruction on voluntary intoxication.
Fox correctly points out that a gang enhancement was improperly imposed on him as a nonkiller, when a firearms enhancement was also imposed on counts 3 through 7. ( § 12022.53, subd. (e)(2).) Defendants also raise a sentencing issue—imposition of a great bodily injury enhancement on count 7—that is moot in light of our decision to reverse the attempted murder convictions (counts 3 through 7). Thompkins argues, in light of Fox's confession at sentencing, that he was entitled to prevail on a motion for a new trial, and his attorney was ineffective in failing to move to recall his sentence so that he could move for one. We also address Fox's claims of clerical error and both defendants’ contention that the errors, assessed cumulatively, were prejudicial.
III. DISCUSSION
A. ISSUES BASED ON POSTJUDGMENT LEGAL DEVELOPMENTS
1. People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 : The Kill Zone Instruction
a. The Kill Zone Theory of Attempted Murder
The Supreme Court last year undertook to clarify the kill zone theory of attempted murder and the circumstances under which the jury may be given a kill zone instruction. ( Canizales , supra , 7 Cal.5th at pp. 602-616, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Canizales involved a gang-related shooting at a neighborhood block party that left an innocent woman dead. ( Id . at pp. 598-602, 248 Cal.Rptr.3d 370, 442 P.3d 686.) That woman was not the target of the shooting; she was dancing in the street to the music playing on her car radio when she was struck by a stray bullet meant for someone else. ( Id . at pp. 599-600, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Five spent nine-millimeter cartridges were found at the site of the shooting, and it eventually came to appear that the five had been fired by KeAndre Windfield from a distance of approximately 100 to 160 feet ( id . at p. 600, 248 Cal.Rptr.3d 370, 442 P.3d 686 ), while in the company of and with the encouragement of Michael Canizales, both of whom were members of the Ramona Blocc gang ( id . at pp. 598, 616, 248 Cal.Rptr.3d 370, 442 P.3d 686 ). Though neither of them was shot ( id . at p. 600, 248 Cal.Rptr.3d 370, 442 P.3d 686 ), the prosecution would ultimately theorize that Denzell Pride was Windfield's main target, while Travion Bolden may have been a secondary target ( id . at p. 616, 248 Cal.Rptr.3d 370, 442 P.3d 686 ). Pride and Bolden were members of a rival gang called Hustla Squad Clicc. ( Id . at p. 598, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
The district attorney charged Windfield and Canizales with one count of murder, two counts of attempted murder, and street terrorism. ( Canizales , supra , 7 Cal.5th at p. 600, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The evidence was fairly strong that Pride was specifically targeted due to a run-in he and Canizales had earlier on the day of the shooting. ( Id . at p. 616, 248 Cal.Rptr.3d 370, 442 P.3d 686.) There was not such clear evidence that Bolden was specifically targeted, but he was close to Pride at the time of the shooting. ( Id . at pp. 601, 614, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The trial was conducted on the theory that Pride was the main target, while Bolden was within a zone of danger around Pride. ( Id . at pp. 609-610, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The trial court gave a kill zone instruction on the attempted murder charge involving Bolden. ( Id . at p. 597, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The Supreme Court reversed the attempted murder conviction and related enhancements pertaining to Bolden because, although the jury could have legitimately convicted the defendants of his attempted murder, it was also possible the jury improperly relied on the kill zone theory in reaching its verdict on the Bolden shooting. ( Id . at pp. 601, 612-618, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
They were convicted on all counts, but Canizales's first degree murder conviction was reduced to second degree under Chiu , supra , 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972. (Canizales , supra , 7 Cal.5th at p. 601, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
The Supreme Court has repeatedly expressed skepticism over the general utility of a kill zone instruction ( Canizales , supra , 7 Cal.5th at pp. 596-598, 608, 248 Cal.Rptr.3d 370, 442 P.3d 686 ; People v. Stone (2009) 46 Cal.4th 131, 137-138, 92 Cal.Rptr.3d 362, 205 P.3d 272 ( Stone ); People v. Bland (2002) 28 Cal.4th 313, 331, fn. 6, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ( Bland )), noting it is a matter that can be left for the jury to infer. ( Stone , at pp. 137-138, 92 Cal.Rptr.3d 362, 205 P.3d 272.) In Canizales , it recognized the "potential for the misapplication of the kill zone theory, as evidenced by prior appellate cases," which implied the theory had been overused in California trials. ( Canizales , at p. 606, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Canizales explained "the kill zone theory for establishing the specific intent to kill required for conviction of attempted murder may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death —around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. Taken together, such evidence will support a finding that the defendant harbored the requisite specific intent to kill both the primary target and everyone within the zone of fatal harm." ( Id. at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686, italics added; see also id. at p. 597, 248 Cal.Rptr.3d 370, 442 P.3d 686.) In a case involving multiple alleged victims of attempted murder, the instruction is prosecution-friendly in that it makes it possible to secure attempted murder convictions without individual-by-individual proof of intent to kill.
Indeed, Canizales was written with an eye toward reining in prosecutors who might like to rely on a kill zone theory in any case in which a "single act is charged as an attempt on the lives of two or more persons." ( Canizales , supra , 7 Cal.5th at p. 602, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The Supreme Court cautioned trial courts against overuse of any type of kill zone instruction. While specifically declining to analyze the constitutionality of a pattern instruction commonly used in California and the one used in Canizales , CALCRIM No. 600 ( id . at pp. 597, 618, 248 Cal.Rptr.3d 370, 442 P.3d 686 ), the court did conclude that "when a kill zone instruction is legally warranted and in fact provided, the standard instruction should be revised to better describe the contours and limits of the kill zone theory as we have laid them out here" ( id. at p. 609, 248 Cal.Rptr.3d 370, 442 P.3d 686 ). The same criticism applies to CALJIC No. 8.66.1 used in the present case.
The kill zone theory is a device of relatively recent origin. It was first adopted in California in Bland , supra , 28 Cal.4th 313, 121 Cal.Rptr.2d 546, 48 P.3d 1107 in 2002, and it originated in Maryland roughly a decade earlier in Ford v. State (1993) 330 Md. 682, 625 A.2d 984, 997-1001. One complication that the kill zone theory attempts to address is the difference in the treatment of transferred intent in cases of murder versus attempted murder. In a murder case, if the defendant intended to kill one person but killed someone else instead, we say that his murderous intent was transferred from the intended victim to the actual victim. ( Stone , supra , 46 Cal.4th at p. 139, 92 Cal.Rptr.3d 362, 205 P.3d 272 ; Bland , supra, at pp. 320-321, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) If a defendant kills the intended victim and others as well, he is guilty of murdering all that he killed. ( Bland , at pp. 317, 323-326, 121 Cal.Rptr.2d 546, 48 P.3d 1107 ; People v. Souza (2012) 54 Cal.4th 90, 120, 141 Cal.Rptr.3d 419, 277 P.3d 118.)
On the other hand, "[w]hen a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be ‘transferred’ from one attempted murder victim to another under the transferred intent doctrine." ( Canizales , supra , 7 Cal.5th at p. 602, 248 Cal.Rptr.3d 370, 442 P.3d 686 ; see also Bland , supra , 28 Cal.4th at pp. 326-331, 121 Cal.Rptr.2d 546, 48 P.3d 1107.) The kill zone theory was adopted to address the situation in which a killer intends to kill one person, as well as all the people in the intended victim's immediate vicinity, to ensure the death of the intended victim. In such a case—and only in such a case—the kill zone instruction may be used, and the defendant may be found guilty of attempted murder of anyone in the kill zone.
"Evidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory." ( Canizales , supra , 7 Cal.5th at p. 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.) "[T]he kill zone theory does not apply where ‘the defendant merely subjected persons near the primary target to lethal risk. Rather, in a kill zone case, the defendant has a primary target and reasons [that] he cannot miss that intended target if he kills everyone in the area in which the target is located. In the absence of such evidence, the kill zone instruction should not be given.’ " ( Ibid. ) "Trial courts should tread carefully when the prosecution proposes to rely on such a theory, and should provide an instruction to the jury only in those cases where the court concludes there is sufficient evidence to support a jury determination that the only reasonable inference from the circumstances of the offense is that a defendant intended to kill everyone in the zone of fatal harm. The use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction." ( Id. at p. 608, 248 Cal.Rptr.3d 370, 442 P.3d 686, original italics.) "When the kill zone theory is used to support an inference that the defendant concurrently intended to kill a nontargeted victim, however, evidence of a primary target is required." ( Ibid. ; see also People v. Mariscal (2020) 47 Cal.App.5th 129, 137-138, 260 Cal.Rptr.3d 571 ; cf. People v. Cerda (2020) 45 Cal.App.5th 1, 19, 258 Cal.Rptr.3d 409 [unnecessary to identify by name specific targets of attempted murder convictions where they could be identified categorically as members of a rival gang], petn. for review pending, petn. filed Mar. 10, 2020.)
A kill zone instruction was given in this case, apparently at the court's own suggestion, as the prosecutor's request for jury instructions did not list CALJIC No. 8.66.1. At the instructional conference, Thompkins's trial attorney, Darryl Billups, pointed out to the judge this fundamental problem with giving a kill zone instruction. Billups did not make an explicit objection to the instruction, but his remarks preserved the issue for Thompkins. Fox's counsel did not join in the protest, but that does not matter, as defendants’ substantial rights are at stake (§ 1259) and because Canizales is new authority further restricting the use of a kill zone theory.
"THE COURT: Okay. [ CALJIC No.] 8.66. That's the attempt murder. And I think you have to also give 8.66.1.
"[PROSECUTOR]: Okay.
"MR. BILLUPS: Which one? "[PROSECUTOR]: The kill zone.
"MR. BILLUPS: Who's the object of
"THE COURT: It's like when you shoot into a crowd.
"MR. BILLUPS: I understand that on the theory of implied malice. What we're talking about within the kill zone, who's the intended victim?
"THE COURT: Anybody within the kill zone. The zone of risk.
"MR. BILLUPS: It sounds like an implied malice theory of murder as opposed to attempt, as opposed to a specific intent to kill. "THE COURT: No, there's the intent to kill. "MR. BILLUPS: You get to implied malice if you shoot into a crowded room.
"THE COURT: So that will be given."
b. Instructions Given the Jury on Attempted Murder
On the attempted murder charges, the trial court instructed the jury with CALJIC No. 8.66, which lays out the general elements of attempted murder and, as given, read: "The Defendants Clem Thompkins and Lamar Fox, are accused in counts 3-7 of having committed the crime of attempted murder, in violation of sections 664 and 187 of the Penal Code. [¶] Every person who attempts to murder another human being is guilty of a violation of Penal Code sections 664 and 187. [¶] Murder is the unlawful killing of a human being with malice aforethought. [¶] In order to prove attempted murder, each of the following elements must be proved: [¶] 1.) A direct but ineffectual act was done by one person towards killing another human being; and [¶] 2.) The person committing the act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being. [¶] .... [A]cts of a person who intends to kill another person will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to kill. The acts must be an immediate step in the present execution of the killing, the progress of which would be completed unless interrupted by some circumstances not intended in the original design."
The kill zone instruction given in this case stated: "A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone of risk. This zone of risk is termed the ‘kill zone.’ The intent is concurrent when the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity. [¶] Whether a perpetrator actually intended to kill the victim either as a primary target or as someone within the kill zone or zone of risk is an issue to be decided by you." The instruction as given was a modified version of CALJIC No. 8.66.1 —attempted murder—concurrent intent.
Given the wording of CALJIC No. 8.66, the jury also could have found defendants guilty under that instruction. The question is whether it is clear beyond a reasonable doubt they did not use a kill zone theory in arriving at their actual verdicts. c. Thompkins's Contentions on Appeal
Fox joined in Thompkins's briefing on this issue but did not brief it separately.
Thompkins attacks the kill zone instruction on two levels. Most fundamentally, he claims the instruction was improperly given in this case because the evidence did not satisfy the two-part test of Canizales . He contends the evidence was insufficient to support a finding that he harbored a specific intent to kill anyone other than the two named victims in the murder charges, Adam and Jenkins. He reaches this conclusion by proposing, without record citation, that Adam and Jenkins were the very same two patrons who engaged with Fox over the neck chain. Building on that supposition, he implicitly suggests the prior scuffle provided the motive for Thompkins to want to kill them, and because the scuffle did not involve the other injured victims, there was no evidence showing intent to kill those individuals, either as individuals or as occupants of the kill zone. He seems to define the "kill zone" as the area in the immediate vicinity of the doorway and goes to some length to argue that the various injured victims were not within the kill zone.
Secondarily, he claims that even if a kill zone instruction was warranted, the wording of this particular instruction made it erroneous under Canizales . It required only that the jurors find it "reasonable to infer" that Thompkins intended to kill everyone in the zone of fatal harm, whereas Canizales held such an inference must be the "only reasonable inference" before the kill zone theory of concurrent intent to kill may be employed or an instruction given. ( Canizales , supra , 7 Cal.5th at p. 597, 248 Cal.Rptr.3d 370, 442 P.3d 686, italics in original.)
d. A Kill Zone Instruction Should Not Have Been Given
Canizales clarified that a kill zone theory cannot be used unless (1) the defendant has a primary target, (2) the defendant harbors the intent to annihilate everyone within the kill zone in order to make sure he or she kills the primary target, and (3) the alleged victim of the attempted murder was inside the kill zone. (See Canizales , supra , 7 Cal.5th at pp. 597, 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.) This case simply was not tried as a kill zone case. The prosecution did not attempt to define the "kill zone" as encompassing any area smaller than the entire restaurant at trial, yet there was clearly no effort by Thompkins to kill everyone in the restaurant. He fired 10 shots, but there were more than 10 people inside, making the idea that the entire restaurant was the kill zone untenable.
The prosecution never attempted to identify any particular target victim or victims. To say that Adam and Jenkins were the targets (as Thompkins now does) merely because they ended up being killed is to superimpose a specificity not supported by the evidence. It would require us to assume that Thompkins knew exactly which men had confronted Fox and that Thompkins was an accurate marksman and killed exactly whom he intended to kill. True, he was firing at close range, but we do not believe there was sufficient evidence to establish that Adam and Jenkins were the same men who scuffled with Fox in the doorway to Sweet Jimmie's, or that Thompkins specifically targeted them for any other reason. In the absence of such proof, a kill zone instruction was unwarranted either before or after Canizales . ( Canizales , supra , 7 Cal.5th at pp. 596-597, 606-607, 609-610, 248 Cal.Rptr.3d 370, 442 P.3d 686 ; Stone , supra , 46 Cal.4th at pp. 137-138, 92 Cal.Rptr.3d 362, 205 P.3d 272.)
The Attorney General agrees the kill zone instruction should not have been given, but claims it was harmless error. Citing Stone , supra , 46 Cal.4th 131, 92 Cal.Rptr.3d 362, 205 P.3d 272, he claims the case law even before Canizales was decided already firmly established that a defendant who shoots indiscriminately into a crowd, intending to kill someone—but no particular person—is criminally liable for attempted murder without resort to a kill zone instruction. ( Stone , at pp. 137-139, 92 Cal.Rptr.3d 362, 205 P.3d 272.) He claims that is what happened here; the kill zone instruction should not have been given ( id . at pp. 140-142, 92 Cal.Rptr.3d 362, 205 P.3d 272 ) but was superfluous.
Stone involved a defendant who fired a single shot at a group of rival gang members at a distance of four to five feet, where there was testimony that he may have been pointing his gun at the group, as well as testimony that he may have been pointing it over their heads, trying just to scare them. ( Stone , supra , 46 Cal.4th at p. 135, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Although the opinion does not indicate whether anyone was injured, the defendant was charged with attempted murder of one person, Joel F. ( Id . at p. 136, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Stone was convicted of one count of attempted murder by a jury which had been given a kill zone instruction modeled on CALCRIM No. 600. ( Stone , at pp. 135-136, 138, 92 Cal.Rptr.3d 362, 205 P.3d 272.) The Court of Appeal reversed, holding not only that giving the instruction was reversible error, but that the evidence was insufficient to support a charge of attempted murder, and retrial was barred. ( Id . at p. 135, 92 Cal.Rptr.3d 362, 205 P.3d 272.) The Supreme Court reversed the Court of Appeal, agreeing that a kill zone instruction was not warranted, but holding that the evidence was not insufficient to support an attempted murder conviction. ( Stone , supra , 46 Cal.4th at pp. 136-141, 92 Cal.Rptr.3d 362, 205 P.3d 272.) As the Supreme Court made clear, such a shooting, if accompanied by intent to kill, is sufficient to support an attempted murder verdict, at least on behalf of one person, where one shot was fired. ( Id . at pp. 134, 140-141, 92 Cal.Rptr.3d 362, 205 P.3d 272.) The Supreme Court held that just because the prosecution could not prove Stone intended to kill the particular person named in the information did not mean he was not guilty of attempted murder. "The mental state required for attempted murder is the intent to kill a human being, not a particular human being." ( Id. at p. 134, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Under Stone , there can be no doubt the evidence in the present case was sufficient to support an attempted murder verdict for each of the injured victims. ( Id . at pp. 137-141, 92 Cal.Rptr.3d 362, 205 P.3d 272.)
One of the analytical difficulties with the Stone theory of attempted murder is determining how many attempted murder convictions will be justified if a defendant shoots into a crowd of people with intent to kill, not limited to one particular person. (Stone , supra , 46 Cal.4th at pp. 140-141, 92 Cal.Rptr.3d 362, 205 P.3d 272.) While Stone acknowledged the theoretical problem, it found no difficulty with the notion that a single conviction for attempted murder could stand for the one named victim. (Id. at p. 141, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Likewise, whatever the theoretical and practical limits of the doctrine, the reasoning of Stone at least would justify five attempted murder convictions in this case. (See People v. Medina (2019) 33 Cal.App.5th 146, 156, 244 Cal.Rptr.3d 714 (Medina ).)
The evidence at trial showed an indiscriminate shooting into a crowded room, which under Stone's analysis could make Thompkins guilty of multiple attempted murders if it were shown that he harbored an intent to kill indiscriminately. (Stone , supra , 46 Cal.4th at p. 140, 92 Cal.Rptr.3d 362, 205 P.3d 272.) He could at least be found guilty of attempting to murder the five victims he wounded when 10 shots were fired. Whether he could have been convicted of additional counts for patrons in Sweet Jimmie's who were not hit by bullets is a question we need not confront. (Id. at p. 141, 92 Cal.Rptr.3d 362, 205 P.3d 272 ; see People v. Perez (2010) 50 Cal.4th 222, 224, 232, 234, 112 Cal.Rptr.3d 310, 234 P.3d 557 [Supreme Court reversed seven of eight attempted murder convictions based on defendant's firing a single shot from 60 feet away into a group comprised primarily of police officers standing in close proximity to one another because the nature and scope of defendant's attack had not created a zone of fatal harm].)
The jury was not given a pinpoint instruction specifically outlining the Stone theory of liability for attempted murder. The jury was not told, for instance, "a person who intends to kill can be guilty of attempted murder even if the person has no specific who intends to kill can be guilty of attempted murder even if the person has no specific specific person." (Stone , supra , 46 Cal.4th at p. 140, 92 Cal.Rptr.3d 362, 205 P.3d 272.)
Thompkins argues he only exhibited, at most, "conscious disregard of the risk that others may be seriously injured or killed" toward the victims who were not killed, and not actual intent to kill all five wounded victims. But under Stone it could be found, without assistance of the kill zone theory, that he intended to kill someone in the crowd—anyone who got in the way of his bullets—and thus attempted to murder each of those victims. In that case, under Stone , he would be guilty of attempted murder of all five injured victims. ( Stone , supra , 46 Cal.4th at pp. 134, 137-141, 92 Cal.Rptr.3d 362, 205 P.3d 272.) We do not believe, as Thompkins suggests, that Canizales superseded Stone on this point. e. The Error Was Prejudicial Under People v. Aledamat (2019) 8 Cal.5th 1, 251 Cal.Rptr.3d 371, 447 P.3d 277
Canizales cites Stone repeatedly with no indication of disagreement. (Canizales , supra , 7 Cal.5th at pp. 604, 608, 248 Cal.Rptr.3d 370, 442 P.3d 686.) We think Canizales and Stone work hand-in-hand to clarify the kill zone theory and to describe liability for partially unsuccessful attempts at mass murder. Stone establishes that the kill zone theory cannot be used when the defendant fires indiscriminately at a crowd of people, not aiming to kill anyone in particular, but hoping to kill as many as possible. (Stone , supra , 46 Cal.4th at p. 140, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Canizales reinforces that the kill zone theory requires identification of an intended target. (Canizales , at pp. 607-608, 248 Cal.Rptr.3d 370, 442 P.3d 686.) Notwithstanding the inapplicability of the kill zone theory, Stone clarifies that one who shoots at a crowd intending to kill indiscriminately does commit attempted murder. (Stone , at p. 140, 92 Cal.Rptr.3d 362, 205 P.3d 272.)
The evidence presented at trial was not exclusively probative under the erroneous kill zone instruction. It was also probative of intent to kill each person who got in the way of one of Thompkins's bullets. Under Stone , such intent to kill could be inferred from the weapon Thompkins chose to use, the number of shots fired, the manner in which he fired, and the circumstances under which he fired, including his proximity to his victims. "[I]t is well settled that intent to kill or express malice, the mental state required to convict a defendant of attempted murder, may in many cases be inferred from the defendant's acts and the circumstances of the crime. [Citation.] ‘There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill." ’ " ( People v. Smith (2005) 37 Cal.4th 733, 741, 37 Cal.Rptr.3d 163, 124 P.3d 730 ; see also Canizales , supra , 7 Cal.5th at pp. 602, 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.)
Based on the foregoing analysis, there was sufficient evidence to support all five attempted murder convictions under Stone , without a kill zone instruction. ( Stone , supra , 46 Cal.4th at pp. 140-141, 92 Cal.Rptr.3d 362, 205 P.3d 272.) Indeed, this may be the theory under which the jury convicted the defendants—that the characteristics of Thompkins's attack showed he intended to kill as many people as he could inside Sweet Jimmie's, regardless of whether they were among those who were involved in the confrontation with Fox. If so, the convictions would be valid under Stone . The Attorney General argues there was "overwhelming" evidence that defendants were guilty of attempted murder under a Stone theory. Therefore, he suggests, the kill zone instructional error was harmless, even under the rigorous Chapman standard.
The fact that there was a solid evidentiary basis for five attempted murder convictions does not mean, however, that the instructional error was harmless, as the Attorney General suggests. In Stone the trial court had given a kill zone instruction, which the Court of Appeal found to be both erroneous and prejudicial. It also found there was insufficient evidence to convict Stone of attempted murder, which precluded a retrial. (Stone , supra , 46 Cal.4th at pp. 135-136, 92 Cal.Rptr.3d 362, 205 P.3d 272.) It appears to be this latter finding against which the Supreme Court intended to lodge its criticism, for it agreed with the Court of Appeal that the kill zone instruction should not have been given. (Id. at p. 138, 92 Cal.Rptr.3d 362, 205 P.3d 272.) What was true in Stone is also true here: "The kill zone theory simply does not fit the charge or facts of this case." (Ibid. ; see also Medina , supra , 33 Cal.App.5th at p. 156, 244 Cal.Rptr.3d 714.)
The Attorney General points out that a Stone theory of attempted murder (indiscriminate shooting into the bar) was argued by the prosecutor more prominently than the kill zone theory. At one point in closing argument, however, the prosecutor said, "The intent was to kill whoever was inside in the line of fire.[ ] This is sometimes referred to as a kill zone." That was a faulty description of the kill zone theory, for the kill zone theory requires a specific murder target . ( Canizales , supra , 7 Cal.5th at p. 609, 248 Cal.Rptr.3d 370, 442 P.3d 686 ; People v. Mariscal, supra, 47 Cal.App.5th at pp. 137-138, 260 Cal.Rptr.3d 571 ; Medina , supra , 33 Cal.App.5th at pp. 155-156, 244 Cal.Rptr.3d 714.) The prosecutor described a Stone theory of attempted murder, but connected it up to the kill zone jury instruction. That misleading argument invited the jury to employ the kill zone instruction where no specific target had been identified. This argument reinforced the prejudicial potential of the kill zone instruction itself.
The prosecutor was right in theory. A jury can reasonably conclude a defendant without a primary target who repeatedly shoots at close range into a crowd with a semiautomatic assault rifle harbors the intent to kill. If the jury so infers, the defendant commits multiple counts of attempted murder under a Stone rationale. (See Medina , supra , 33 Cal.App.5th at p. 156, 244 Cal.Rptr.3d 714.) Though we reverse all five attempted murder convictions, there is no reason why those counts could not be retried without reliance on the kill zone theory (or with appropriate evidence to support it) if the district attorney so elects.
When both a correct and an incorrect instruction have been given, to determine whether the instructional error requires reversal, we apply People v. Aledamat (2019) 8 Cal.5th 1, 251 Cal.Rptr.3d 371, 447 P.3d 277 ( Aledamat ). There, the defendant was on trial for assault with a deadly weapon (§ 245), and jurors were given both correct and incorrect alternative instructions; they were told that a weapon "could be either inherently deadly or deadly in the way defendant used it." ( Id . at p. 6, 251 Cal.Rptr.3d 371, 447 P.3d 277.) Because the weapon there involved—a box cutter—was not an inherently deadly weapon as a matter of law ( ibid . ), the first part of the instruction was erroneous, but the second part was correct. ( Id . at p. 7, 251 Cal.Rptr.3d 371, 447 P.3d 277.) The question before the Supreme Court was whether the error was prejudicial in circumstances where there was nothing in the record to show which theory the jury employed in finding Aledamat guilty, but there was plenty of evidence to convict him of use of the box cutter in a deadly manner. ( Id. at pp. 13-15, 251 Cal.Rptr.3d 371, 447 P.3d 277.)
The Supreme Court first analyzed whether the erroneous instruction was "factually inadequate" or "legally inadequate." ( Aledamat , supra , 8 Cal.5th at p. 7, 251 Cal.Rptr.3d 371, 447 P.3d 277.) A " ‘ "factually inadequate theory" ’ " is one that is "incorrect only because the evidence does not support it." ( Ibid ., citing People v. Guiton (1993) 4 Cal.4th 1116, 1128, 17 Cal.Rptr.2d 365, 847 P.2d 45 ( Guiton ).) A " ‘ "legally inadequate theory" ’ " is one "incorrect because it is contrary to law." ( Aledamat , supra , 8 Cal.5th at p. 7, 251 Cal.Rptr.3d 371, 447 P.3d 277.) In Aledamat , the Supreme Court determined the inadequacy was legal because prior case law had established that a box cutter, designed for a utilitarian purpose, is not, as a matter of law, an inherently deadly weapon. ( Id. at p. 6, 251 Cal.Rptr.3d 371, 447 P.3d 277.) In assessing prejudice, Aledamat considered the likelihood that the jurors would have applied the erroneous instruction, not simply the strength of the evidence to support a guilty verdict using the correct instruction. ( Aledamat , supra , 8 Cal.5th at pp. 13-15, 251 Cal.Rptr.3d 371, 447 P.3d 277.) This focus on the impact of the erroneous instruction rather than the strength of the evidence of guilt is central to Aledamat ’s reasoning on prejudice. This is not the type of error that can be rendered harmless by "overwhelming" evidence of guilt alone.
We deal here with an instruction that was both legally and factually inadequate. It was legally inadequate because it failed to accurately describe the "kill zone" theory as clarified by Canizales . It was factually inadequate because it described a theory of liability that was inapplicable to the facts as established at trial.
The Attorney General concedes the instruction was factually inappropriate, but he fails to acknowledge its legal inadequacy. The instruction included: "the nature and scope of the attack, while directed at a primary victim, are such that it is reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim's vicinity." This watered down the requirement under Canizales that the inference of intent to kill all those in the target's vicinity must be the "only reasonable inference" that could be drawn from the evidence. ( Canizales , supra , 7 Cal.5th at pp. 597, 607, 248 Cal.Rptr.3d 370, 442 P.3d 686.) The instruction in this case thus gave the jury a potential short-cut for reaching a guilty verdict on counts 3 through 7.
When legal inadequacy is involved, Aledamat holds: "The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt." ( Aledamat , supra , 8 Cal.5th at p. 13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) In so holding it rejected a more demanding standard of review, advocated by the defendant, that would have required the court to examine the verdict and the record and to find evidence in the record to support a determination, beyond a reasonable doubt, that the jury actually relied on the valid, not the invalid, theory. ( Id . at p. 9, 251 Cal.Rptr.3d 371, 447 P.3d 277.) The Supreme Court held such a course is not required. It is enough if we can say, beyond a reasonable doubt, the legally inadequate theory did not contribute to the verdict. ( Id . at pp. 10, 12, 251 Cal.Rptr.3d 371, 447 P.3d 277.)
As we understand the standard of review, the question is not whether we think it clear beyond a reasonable doubt that the defendants were actually guilty of five attempted murders based on the valid theory, but whether we can say, beyond a reasonable doubt, the jury's actual verdicts were not tainted by the inaccurate jury instruction. We focus on the likelihood that the jury relied on the kill zone instruction in reaching its verdicts, not simply the likelihood of defendants’ guilt under a legally correct theory. Under that standard of review, the error was prejudicial in this case. We cannot tell whether the jurors’ reasoning proceeded in accordance with the inferences allowable under Stone and CALJIC No. 8.66, or whether the jurors instead relied on some version of the kill zone theory that failed to comply with Canizales . (See Canizales , supra , 7 Cal.5th at pp. 612-615, 248 Cal.Rptr.3d 370, 442 P.3d 686 [ Chapman standard applies].) We cannot say beyond a reasonable doubt that some jurors, at least, did not rely on the faulty element of the kill zone instruction. Therefore, under the guidance of Aledamat , we must reverse the convictions on counts 3 through 7 and the related enhancement findings.
In a rehearing petition that for the first time acknowledges the legal inadequacy of the kill zone instruction under Canizales (a case which, to be sure, had yet to be decided when these appeals were originally briefed), the Attorney General suggests that "[w]hen viewed in light of the facts of this case and the standard set forth in Aledamat and [ People v. Merritt (2017) 2 Cal.5th 819, 216 Cal.Rptr.3d 265, 392 P.3d 421 ( Merritt ) ], the opinion in this case appears to set the bar too high" for affirmance. According to the Attorney General, "[t]he test under those cases and the United States Supreme Court cases upon which they relied," Neder v. United States (1999) 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 ( Neder ) and Hedgpeth v. Pulido (2008) 555 U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 ( Hedgpeth ), "is not whether the reviewing court can say beyond a reasonable doubt that the ‘jury's actual verdicts were not tainted by the inaccurate jury instruction’ " (quoting this court's opinion, italics added by the Attorney General), but "whether it is ‘ "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error" ’ " (quoting Merritt, supra , 2 Cal.5th at p. 827, 216 Cal.Rptr.3d 265, 392 P.3d 421 (quoting Neder, supra , 527 U.S. at p. 18, 119 S.Ct. 1827 ), italics added by the Attorney General).
The Attorney General's formulation of the applicable test, which is based on his selectively italicizing a quotation from Neder in the Merritt opinion, is not only inconsistent with Chapman itself, but sets the bar for affirmance too low under Aledamat . "Consistent with the jury-trial guarantee, the question [Chapman] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand." ( Sullivan v. Louisiana (1993) 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182.) "Harmless-error review" under Chapman , the high court explained in Sullivan , looks to "the basis on which ‘the jury actually rested its verdict.’ [Citation.] The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered—no matter how inescapable the findings to support that verdict might be—would violate the jury-trial guarantee." ( Ibid . )
What Aledamat holds, in line with Neder and Hedgpeth , is that an analysis of the actual verdict rendered is but a specific application of the more general Chapman standard, which looks to whether, upon an examination of "the entire cause, including the evidence, and considering all relevant circumstances," the error was harmless beyond a reasonable doubt. ( Aledamat, supra , 8 Cal.5th at p. 13, 251 Cal.Rptr.3d 371, 447 P.3d 277.) Besides examination of the actual verdict, there are other permissible modes of analysis for determining that no reasonable jury could have made the finding the actual jury made without also making the necessary findings under a correct set of instructions. ( Neder, supra , 527 U.S. at pp. 18–19, 119 S.Ct. 1827 ; cf. Hedgpeth, supra , 555 U.S. at p. 61, 129 S.Ct. 530 [" Neder makes clear that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically ‘ "vitiat[e] all the jury's findings." ’ "].) Among these other approaches, the Aledamat court held, is the one used in Merritt . ( Aledamat, supra , 8 Cal.5th at p. 15, 251 Cal.Rptr.3d 371, 447 P.3d 277.)
Our analysis here is fully consistent with Aledamat . We do not suggest that examination of the jury's actual verdicts is the only way to determine whether alternative-theory error is reversible under Chapman . On this record, we would, and we do, arrive at the same conclusion utilizing the approach in Merritt , which looks to whether, based on evidence that is overwhelming and uncontroverted, we are convinced on appeal, beyond a reasonable doubt, that " ‘the jury verdict would have been the same absent the error.’ " ( Merritt, supra , 2 Cal.5th at p. 832, 216 Cal.Rptr.3d 265, 392 P.3d 421.)
Thompkins fired his rifle into a crowd gathered at the entrance to Sweet Jimmie's, where the scuffle involving Fox occurred. One of the attempted murder victims (Waterman) may have been involved in the scuffle at the door, but all of the others suffered their injuries inside the restaurant. Unlike Merritt , where the omitted portions of the instructions went to uncontested elements of the charged offense, in this case the issue of specific intent for the charged attempted murders was a matter of dispute. While the evidence may have been sufficient to convict under a Stone theory, as we note above, we cannot say it was overwhelming and we certainly cannot say it was uncontroverted. In fact, any distinction among the victims based on their locations when injured is the very issue the erroneous kill zone instruction allowed the jury to avoid. No matter how plausible it may seem to us that a properly instructed hypothetical jury would have found a specific intent to kill each of the five attempted murder victims, we cannot step in for this jury and so find on appeal. 2.-3.
See footnote *, ante .
4. People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 : Gang Expert's Testimony to Hearsay
a. Gang Enhancements Charged Under Section 186.22, Subdivision (b)(1): General Principles
A gang enhancement under section 186.20 et seq., commonly known as the Street Terrorism Enforcement and Prevention Act (the STEP Act), has two elements or prongs—the gang-related crime prong, and the specific intent prong. ( People v. Albillar (2010) 51 Cal.4th 47, 60, 64-65, 119 Cal.Rptr.3d 415, 244 P.3d 1062.) Under the first prong, the prosecution must show the defendant committed the underlying crime "for the benefit of, at the direction of, or in association with a criminal street gang." (§ 186.22, subd. (b)(1).) A "criminal street gang" must have "a common name or common identifying sign or symbol," its members must "individually or collectively engage in, or have engaged in, a pattern of criminal gang activity," and it must have among its "primary activities" the commission of one or more statutorily enumerated offenses. "The phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group's ‘chief’ or ‘principal’ occupations." ( People v. Sengpadychith (2001) 26 Cal.4th 316, 323, 323, 109 Cal.Rptr.2d 851, 27 P.3d 739 ( Sengpadychith ).)
A " ‘pattern of criminal gang activity’ [under the STEP Act] means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" of the offenses listed in 33 subparagraphs of the statute. (§ 186.22, subd. (e)(1)-(33).) These offenses have generally been termed "predicate offenses" (although the phrase does not appear in the statute), two or more of which must be proved to have been committed by gang members within a statutorily-defined timeframe to establish the gang as a "criminal street gang." (Id ., subd. (e).) The charged crime may serve as a predicate offense to qualify the gang as a criminal street gang ( People v. Tran (2011) 51 Cal.4th 1040, 1046, 126 Cal.Rptr.3d 65, 253 P.3d 239 ( Tran ); People v. Gardeley (1996) 14 Cal.4th 605, 625, 59 Cal.Rptr.2d 356, 927 P.2d 713, disapproved on other grounds in Sanchez , supra , 63 Cal.4th at p. 686, fn. 13, 204 Cal.Rptr.3d 102, 374 P.3d 320 ( Gardeley ); Duran , supra , 97 Cal.App.4th at p. 1457, 119 Cal.Rptr.2d 272 ), as may a prior conviction suffered by a defendant ( Tran , supra , at pp. 1048-1049, 126 Cal.Rptr.3d 65, 253 P.3d 239 ). Predicate offenses need not be gang-related ( Gardeley , at p. 610, 59 Cal.Rptr.2d 356, 927 P.2d 713 ), and proof of a conviction is unnecessary ( People v. Garcia (2014) 224 Cal.App.4th 519, 524, 169 Cal.Rptr.3d 85 ).
Under the second prong of a STEP Act gang enhancement, the prosecution must show the defendant acted with the specific intent to "promote, further, or assist in any criminal conduct by gang members." ( Albillar , supra , 51 Cal.4th at p. 59, 119 Cal.Rptr.3d 415, 244 P.3d 1062 ; § 186.22, subd. (b)(1).) Specific intent " ‘is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense.’ " ( People v. Rios (2013) 222 Cal.App.4th 542, 567-568, 165 Cal.Rptr.3d 687.) It was not necessary for the People to prove defendants were members of Lower Bottoms, or even that they specifically intended to promote, further or assist the gang as a whole. What was required was that they specifically intended to "promote, further or assist in any criminal conduct by gang members." ( Albillar , supra , 51 Cal.4th at pp. 67-68, 119 Cal.Rptr.3d 415, 244 P.3d 1062.)
Although the standards for the admission of expert testimony have tightened considerably in recent years, it remains true in principle that expert testimony may supply sufficient proof of the gang's primary activities. ( Sengpadychith , supra , 26 Cal.4th at p. 323, 109 Cal.Rptr.2d 851, 27 P.3d 739, 26 Cal.4th 1154A at p. 323 ; Garcia , supra , 46 Cal.App.5th at p. 165, 259 Cal.Rptr.3d 600.) In accordance with this accepted mode of proof, the prosecution in a STEP Act case usually presents a gang expert to describe for the jury how a group of the defendant's associates qualifies as a "criminal street gang," including a description of their "primary activities" (§ 186.22, subd. (f)) (i.e., commission of crimes identified in certain subparagraphs of § 186.22, subd. (e)), the name or identifying "sign[s] or symbol[s]" of the promoted gang (id ., subd. (f)), and at least two offenses committed by the defendant or his fellow gang members to show the gang had engaged in a "pattern of criminal gang activity" (id ., subds. (b)(1), (e) & (f)). That was the approach the prosecution took to STEP Act proof in this case, through Officer Valle.
b. Officer Valle's Expert Testimony to Support the Gang Enhancements
Officer Valle was no ivory tower expert. Much of his expertise was gained while working in various gang-related assignments in the Oakland Police Department over his 11-year career. He started as a patrol officer in West Oakland's gang territories, and more recently was assigned to the gang unit (for more than eight years), where he participated in "[i]dentifying violent street gangs throughout the City of Oakland, monitoring their activities and conducting operations to dismantle their activities." He gained additional gang expertise through formal training, conducting hundreds of gang-related investigations, engaging in hundreds of personal interactions with gang members, and exchanging information with other officers while coordinating with them on gang-related investigations. He also personally participated in the investigation of the Sweet Jimmie's shooting.
His testimony included background evidence relating to gangs in general, not limited to Lower Bottoms. For instance, he testified that gang members find personal status within the gang and respect for their gang by waging violence in the company of other gang members, even if the victims of the violence are not rival gang members. He testified gangs thrive on violence because it instills fear in the public and reduces the risk their criminal activities will be reported to the police. All of that testimony passes muster under both Sanchez and Crawford as nontestimonial background facts gathered from various sources over a period of time. As such, it is admissible under Sanchez in support of the expert's opinions. ( Sanchez , supra , 63 Cal.4th at pp. 678, 685, 204 Cal.Rptr.3d 102, 374 P.3d 320.)
Officer Valle also testified about the organization of Lower Bottoms, its rivalry with Acorn, its primary activities, its pattern of criminal gang activity, and its subsets. He identified Lower Bottoms's "primary activities" as murder, attempted murder, assault with a deadly weapon, assault by means of force likely to cause great bodily injury, robbery, sale or possession for sale of controlled substances, carrying a firearm, and illegal possession of a firearm. He also opined that Lower Bottoms had engaged in a "pattern of criminal [gang] activity." (§ 186.22, subds. (b)(1), (e) & (f).)
In response to hypothetical questions, consistent with People v. Vang (2011) 52 Cal.4th 1038, 1046, 132 Cal.Rptr.3d 373, 262 P.3d 581, Valle testified that gang members in defendants’ position would have intended to assault rival gang members with a firearm and would have understood that a violent gang response, including "shooting to kill," was about to transpire, and that the ensuing crime would have been done for the benefit of their gang. These hypotheticals were "rooted in facts shown by the evidence" ( id . at p. 1045, 132 Cal.Rptr.3d 373, 262 P.3d 581 ) under applicable evidentiary principles at the time of trial. At that time, the Supreme Court had authorized the use of hearsay testimony by a gang expert so long as it was reliable. ( Gardeley , supra , 14 Cal.4th at p. 618, 59 Cal.Rptr.2d 356, 927 P.2d 713, overruled in Sanchez , supra , 63 Cal.4th at p. 686, fn. 13, 204 Cal.Rptr.3d 102, 374 P.3d 320.) This rule has seen a paradigmatic shift in recent years.
c. Legal Background of Defendants’ Contentions
On June 30, 2016, while this appeal was pending, the California Supreme Court issued its opinion in Sanchez , supra , 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320, a pathmarking decision that announced significant changes in the law relating to hearsay testimony by expert witnesses, which in turn made such testimony vulnerable to challenge under Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ) for the first time. Through supplemental briefing in August 2016, Thompkins and Fox expanded the scope of their evidentiary and constitutional challenges to the expert's testimony based on Sanchez , supra , 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320.
On August 8, 2016, after briefing was complete, Thompkins's attorney filed a letter brief citing Sanchez , followed closely by a similar letter brief from Fox's counsel. Though purportedly filed as "new authorities" letters, these submissions raised an entirely new issue and were out of compliance with rule 8.254 of the California Rules of Court. We elected to treat the letter briefs as requests for supplemental briefing (id. , rule 8.200(a)(4)), and we allowed them to be treated as properly filed supplemental briefs. We requested and received responsive briefing from the Attorney General. Counsel for defendants are cautioned not to violate rule 8.254 in the future.
Thompkins contends the gang expert's testimony in the following specific areas was inadmissible hearsay and violated his right of confrontation: (1) the expert's testimony about Lower Bottoms's primary activities, pattern of criminal activity, and the predicate offenses required to support the gang enhancements; (2) Officer Valle's testimony about Thompkins's admissions of gang membership when being booked into jail after his arrest in this case and on prior occasions; (3) Valle's testimony about Thompkins's arrest in 2006 at McClymonds High School for possession of a firearm; (4) Valle's testimony that Thompkins had on various occasions been found in the company of Lower Bottoms gang members; and (5) Valle's testimony that Thompkins was the victim of a shooting in August 2007, and he failed to cooperate in the police investigation. Thompkins again raised these Sanchez issues in supplemental briefing filed September 9, 2019, after Judge Nakahara denied his habeas petition. Fox joined in that briefing.
Fox also asserted a hearsay and confrontation clause issue under Sanchez for the first time in supplemental briefing in August 2016, and he raises broad challenges similar to those asserted by Thompkins relating to gang primary activities and predicate offenses, as well as complaints about Valle's testimony concerning Fox's own individual prior conviction information, which Officer Valle may have learned from other officers, police reports, or conviction records, or may have learned in the process of investigating the Sweet Jimmie's shooting. Fox also contends Valle's opinion that the crimes in this case were committed for the benefit of Lower Bottoms was improperly admitted.
Defendants raised no objection at trial on hearsay or confrontation grounds, but that failure did not forfeit the Sanchez or Crawford issues. ( People v. Perez (2020) 9 Cal.5th 1, 4, 259 Cal.Rptr.3d 195, 459 P.3d 1 ( Perez ); People v. Flint (2018) 22 Cal.App.5th 983, 996-997, 231 Cal.Rptr.3d 910 ( Flint ).)
d. The Sanchez Opinion
In Sanchez , the Supreme Court laid out a two-step process for handling evidentiary challenges to expert "basis" testimony: first, a traditional hearsay analysis, followed by analysis of whether the hearsay is "testimonial" under Crawford , supra , 541 U.S. 36, 124 S.Ct. 1354. ( Sanchez , supra , 63 Cal.4th at p. 680, 204 Cal.Rptr.3d 102, 374 P.3d 320.) The gang expert in Sanchez had never met the defendants and in forming his opinion relied on police reports and court records. ( Id. at p. 694, 204 Cal.Rptr.3d 102, 374 P.3d 320.) On the first prong of the analysis, Sanchez established a new hearsay rule for experts. Before Sanchez was decided, cases such as Gardeley , supra , 14 Cal.4th 605, 59 Cal.Rptr.2d 356, 927 P.2d 713 had allowed experts to testify to "reliable" hearsay on the theory that it was not admitted for its truth, but only to explain the basis for their expert opinions. ( Id . at pp. 618-619, 59 Cal.Rptr.2d 356, 927 P.2d 713.) Overruling Gardeley , the court in Sanchez unanimously held such hearsay is, in fact, admitted for its truth, and the correct dividing line between admissible and inadmissible hearsay in this context lies in whether the testimony relates case-specific facts or general background facts. ( Sanchez , supra , at pp. 674-686, 204 Cal.Rptr.3d 102, 374 P.3d 320.) "[A]n expert has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge." ( Id . at p. 676, 204 Cal.Rptr.3d 102, 374 P.3d 320.) "Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried." ( Ibid . )
Within the Sanchez framework an expert may still testify generally to the facts underlying his or her opinions. The Sanchez "decision does not call into question the propriety of an expert's testimony concerning background information regarding his knowledge and expertise and premises generally accepted in his field. Indeed, an expert's background knowledge and experience are what distinguishes him from a lay witness." ( Sanchez , supra , 63 Cal.4th at p. 685, 204 Cal.Rptr.3d 102, 374 P.3d 320.) " Evidence Code section 802 properly allows an expert to relate generally the kind and source of the ‘matter’ upon which his opinion rests.... There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception." ( Id . at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Sanchez does allow an expert to testify to case-specific hearsay, however, if the underlying facts are "independently proven by competent evidence or are covered by a hearsay exception." ( Ibid . )
In the second step of the analysis, Sanchez reiterated past United States Supreme Court authority, holding if the hearsay relayed by the expert was testimonial, and if Crawford ’s exceptions did not apply, it also violated the confrontation clause under Crawford . ( Sanchez , supra , 63 Cal.4th at pp. 680, 685, 687-700, 204 Cal.Rptr.3d 102, 374 P.3d 320.) "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." ( Id. at p. 689, 204 Cal.Rptr.3d 102, 374 P.3d 320.) By illustrative contrast, Sanchez categorized several items related to the gang expert's testimony as testimonial for Crawford purposes. As relevant to this case, the Supreme Court considered statements in written police reports referenced by the gang expert in testifying about the defendant's prior police contacts. ( Sanchez , supra , 63 Cal.4th at p. 694, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Sanchez concluded the statements at issue in the reports were testimonial, reasoning that, although the reports were not as formal as an affidavit, they "relate hearsay information gathered during an official investigation of a completed crime." ( Ibid . )
e. Officer Valle's Basis Evidence for His Opinions on Gang Activities
In People v. Veamatahau (2020) 9 Cal.5th 16, 259 Cal.Rptr.3d 205, 459 P.3d 10 ( Veamatahau ), the Supreme Court recently clarified the distinction between background facts and case-specific facts for purposes of applying Sanchez . The issue there was whether a drug expert offered case-specific or background testimony when he identified pills in the defendant's possession based on their similar appearance to drugs described on a drug identification database. ( Id . at p. 22, 259 Cal.Rptr.3d 205, 459 P.3d 10.) The Supreme Court held: "The focus of the [ Sanchez ] inquiry is on the information conveyed by the expert's testimony, not how the expert came to learn of such information. Thus, regardless of whether an expert testified to certain facts based on composite knowledge ‘acquired from sources too numerous to distinguish and quantify’ or if the expert simply looked up the facts in a specific reference as part of his or her duties in a particular case, the facts remain the same. The background or case-specific character of the information does not change because of the source from which an expert acquired his or her knowledge." ( Id . at pp. 20-21, 259 Cal.Rptr.3d 205, 459 P.3d 10.)
In deciding the information was background information, not case-specific hearsay, the court pointed out that the expert would have employed his " ‘special knowledge, skill, experience, training, and education’ to (1) select a source to consult, (2) digest the information from that source, (3) form an opinion about the reliability of the source based on [his or her] experience in the field, and (4) apply the information garnered from the source to the (independently established) facts of a particular case." ( Veamatahau , supra , 9 Cal.5th at p. 29, 259 Cal.Rptr.3d 205, 459 P.3d 10.) Veamatahau suggests that if an expert employs his or her expertise in evaluating background information before using it to form an opinion, it remains background information even if it originated from a hearsay source and "serve[s] as the basis of the expert's ultimate opinion" about the charged offense. ( Id . at p. 31, 259 Cal.Rptr.3d 205, 459 P.3d 10, citing Evid. Code, § 805 ["Testimony in the form of an expert opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact."].)
An expert may testify to the matter underlying his or her opinion ( Evid. Code, § 802 ) in order to allow the jury to assess the probative value of the opinion. "A jury may repose greater confidence in an expert who relies upon well-established scientific principles. It may accord less weight to the views of an expert who relies on a single article from an obscure journal or on a lone experiment whose results cannot be replicated." ( Sanchez , supra , 63 Cal.4th at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Gang experts often acquire their expertise by unconventional means other than academic study and research. But the same analysis, applied to the facts before us, suggests that Officer Valle's testimony about the "primary activities" of Lower Bottoms was admissible background information. Valle no doubt acquired his knowledge about Lower Bottoms, its members, activities, and crimes committed by its members, from many sources, not simply by reviewing police reports. Part of his expertise is knowing how to distinguish reliable from unreliable information in the subject area of West Oakland gangs.
Employing the logic of Veamatahau , supra , 9 Cal.5th 16, 34, 259 Cal.Rptr.3d 205, 459 P.3d 10, we are convinced that Valle did not simply "regurgitate" prior conviction information from another source. As a gang expert, Valle would have organized, mentally at least, information he received, probably from multiple sources, about gang members’ activities and convictions. He would have weighed any incoming information against facts already known to him, would have used his expertise to evaluate the reliability of information he received, and would have formed his opinion accordingly. Because whatever information he received was filtered through his expert's lens, he was properly allowed to testify about his resulting opinions (such as whether Lower Bottoms was a "criminal street gang" with qualifying crimes among its "primary activities"). (§ 186.22, subds. (b)(1), (e) & (f).) These are inferential conclusions, not simple historical facts, and as such they may be considered a matter of expert opinion, to which Valle could properly testify. ( Evid. Code, § 801.)
Officer Valle referenced at least once the existence of police reports as a source of his testimony, but unlike the expert in Sanchez (Sanchez , supra , 63 Cal.4th at p. 694, 204 Cal.Rptr.3d 102, 374 P.3d 320 ), at no point in his testimony did Valle appear to rely exclusively on police reports in testifying about the defendants’ criminal histories, gang membership, and their gang's activities. He investigated the Sweet Jimmie's shooting as part of the police department's investigative team and would have learned much about both defendants from various interviews and from sharing information with other officers. It is not accurate to say he relied solely on police reports.
f. Lower Bottoms's Status as a "Criminal Street Gang" Was Established Without Reliance on Case-specific Hearsay.
i. Officer Valle's Testimony About the Gang's "Primary Activities" Was Background Testimony
Officer Valle testified that Lower Bottoms is a criminal street gang under California law and identified Lower Bottoms's primary activities as murder, attempted murder, assault with a deadly weapon, assault by means of force likely to cause great bodily injury, robbery, sale or possession for sale of controlled substances, carrying a firearm, and illegal possession of a firearm. He also testified that Lower Bottoms had engaged in a "pattern of criminal [gang] activity." (§ 186.22, subds. (b)(1), (e) & (f).) This type of background testimony reflecting an expert opinion garnered from multiple sources is admissible under Sanchez because it reflects the operation of the witness's expertise. (See Veamatahau , supra , 9 Cal.5th at p. 29, 259 Cal.Rptr.3d 205, 459 P.3d 10.) Expert testimony about a gang's "primary activities" is considered background information admissible under Sanchez . ( People v. Bermudez (2020) 45 Cal.App.5th 358, 377, 258 Cal.Rptr.3d 689 ( Bermudez ), petn. for review pending, petn. filed Apr. 21, 2020; People v. Blessett (2018) 22 Cal.App.5th 903, 945 & fn. 1, 232 Cal.Rptr.3d 164 ( Blessett ), review granted Aug. 8, 2018, S249250 [grant and hold for People v Perez , S248730], disapproved on another ground in Perez , supra , 9 Cal.5th at p. 14, 259 Cal.Rptr.3d 195, 459 P.3d 1 ; Vega-Robles , supra , 9 Cal.App.5th at p. 411, 224 Cal.Rptr.3d 19 ; People v. Meraz (2016) 6 Cal.App.5th 1162, 1174-1175, 212 Cal.Rptr.3d 81 ( Meraz I ); People v. Meraz (2018) 30 Cal.App.5th 768, 781-782, 242 Cal.Rptr.3d 1 ( Meraz II ), review granted Mar. 27, 2019, S253629 [grant and hold for People v. Perez , S248730].)
ii. Predicate Offenses and Any Pattern of Activity They Show Are "Particular Events" That Must Be Proved by Independently Admissible Nonhearsay or Hearsay Excepted Evidence
To establish that defendants’ gang or its members engaged in a "pattern of criminal gang activity," the prosecution was required to prove that Lower Bottoms gang members had committed at least two predicate offenses. (See ante , part III.A.4.a.) The prior offenses proved by the prosecution in this case were on the list of crimes that qualify as predicate gang offenses: murder, attempted murder, felon in possession, robbery and attempted robbery, possession of narcotics for sale, and sale of a controlled substance. (§ 186.22, subd. (e)(2), (e)(3), (e)(4) & (e)(31).)
There is a split of authority whether specific testimony by a gang expert about predicate offenses by members of a gang should be considered admissible background information or case-specific hearsay in STEP Act cases. In People v. Ochoa (2017) 7 Cal.App.5th 575, 212 Cal.Rptr.3d 703 ( Ochoa ), the expert testified that nondefendants involved in the predicate offenses had admitted their gang membership. ( Id. at p. 582, 212 Cal.Rptr.3d 703.) Ochoa concluded these admissions, testified to by the gang expert, were case-specific. ( Id . at pp. 588-589, 212 Cal.Rptr.3d 703.) The court's analysis on this point was as follows: "It seems clear the hearsay at issue in the present case—out-of-court statements by individuals admitting being members of the [gang]—are case-specific hearsay rather than general background information about the [gang]. Sanchez gave the following as one in a series of examples of the distinction: ‘That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.’ [Citation.] By analogy, that someone admitted being a gang member is also a case-specific fact." ( Ochoa , at pp. 588-589, 212 Cal.Rptr.3d 703.)
To the extent Ochoa may be read as holding that a gang expert's testimony about predicate offenses is always case-specific hearsay inadmissible under Sanchez , the Third District has expressed disagreement. Blessett held such predicate offense testimony about anyone other than the defendant is part of the admissible background testimony that a gang expert may give under Sanchez . ( Blessett , supra , 22 Cal.App.5th at p. 945 & fn. 21, 232 Cal.Rptr.3d 164, review granted Aug. 8, 2018, S249250; see also Bermudez , supra , 45 Cal.App.5th at p. 377 & fn. 13, 258 Cal.Rptr.3d 689 [Third District adhered to its own earlier decision in Blessett , rejecting the alternative view espoused in Ochoa ].) Blessett concluded that predicate offenses committed by gang members other than the defendants in the case roughly equate to "chapters in the gang's biography" and an expert's testimony about them should be regarded as background information. ( Blessett , supra , at p. 945, 232 Cal.Rptr.3d 164 ; see also Bermudez , supra , at p. 377, 258 Cal.Rptr.3d 689.)
Blessett reasoned that, under Sanchez , facts are only case-specific when they relate to "the particular events and participants alleged to have been involved in the case being tried." ( Sanchez , supra , 63 Cal.4th at p. 676, 204 Cal.Rptr.3d 102, 374 P.3d 320 ; see Blessett , supra , 22 Cal.App.5th at pp. 944-945, 232 Cal.Rptr.3d 164, review granted Aug. 8, 2018, S249250.) Since the two or more predicate offenses could have been committed by any member of the gang (§ 186.22, subds. (e), (f)), proof of this element would not necessarily relate to "the particular events and participants" involved in the underlying trial. ( Sanchez , supra , 63 Cal.4th at p. 676, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Thus, when the expert testified about predicate offenses committed by gang members other than defendants, the expert's testimony was background information, not case-specific hearsay. ( Bermudez , supra , 45 Cal.App.5th at pp. 375-377 & fn. 13, 258 Cal.Rptr.3d 689 ; Blessett , supra , at pp. 944-945, 232 Cal.Rptr.3d 164.)
We take the Ochoa view of this issue. Due to the breadth of the gang enhancement statute, it is true that the gang predicate prong may be proved based on the activities of "particular persons" not charged with an offense in the case being tried. But the gang predicate is still an element of a charged enhancement (see People v. Lara (2017) 9 Cal.App.5th 296, 337, 215 Cal.Rptr.3d 91 ), and as such, it puts the defendant in jeopardy just as surely as a charged offense does—in this case, exposing each defendant to a sentence enhancement of up to 10 years (§ 186.22, subd. (b)(1)(C)), and for the nonshooter, eligibility for a sentence of 25 years to life ( § 12022.53, subd. (e)(1) ). As an element of a charged enhancement, it had to be proved true beyond a reasonable doubt. To meet their burden of proof, the People were required to present independently admissible evidence—not merely background testimony provided by an expert, but competent, nonhearsay evidence or evidence subject to a hearsay exception. Because gang predicate activity is an element of a charged enhancement, it does, in our view, place at issue in the case being tried "particular events ." Nothing in an expert's training or expertise can aid a jury in determining whether these events actually took place, since that issue is purely a matter of historical fact. iii. The Predicate Offenses Required to Prove Lower Bottoms Was a Criminal Street Gang Were Established by Independently Admissible Evidence.
Even though some of the gang expert testimony offered here about predicate offenses is case-specific hearsay and should not have been admitted, there remain "two or more" predicate offenses (§ 186.22, subd. (e)) that were established solely with independently admissible evidence.
(a) Thompkins's Prior Arrests and Convictions
First, Officer Valle testified about two prior arrests and two prior convictions of Thompkins and one prior conviction of Fox. Defendants’ own prior crimes may be used as predicate offenses to establish the "pattern of criminal gang activity," as long as the jury is convinced they are gang members. (§ 186.22, subd. (b)(1), (e) & (f)); Tran , supra , 51 Cal.4th at pp. 1044, 1048-1049, 126 Cal.Rptr.3d 65, 253 P.3d 239 [§ 186.22, subd. (a) ]. Proof of a conviction is unnecessary. ( People v. Garcia , supra , 224 Cal.App.4th at p. 524, 169 Cal.Rptr.3d 85.) Valle testified that Thompkins had been arrested for possession of a firearm in September 2006 on McClymonds High School campus, and again in June 2007 at an Arco gas station in West Oakland, the latter time in the company of a Lower Bottoms gang member.
Thompkins does not challenge the admissibility of Valle's testimony about the 2007 incident at the Arco station.
Accepting Thompkins's assertion that Valle's testimony was case-specific, he still has not shown Sanchez error with respect to the McClymonds gun possession because the prosecution also presented additional firsthand testimony of the officers involved in the 2006 incident. (See Sanchez , supra , 63 Cal.4th at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Officers Jamaal Hill and William Bergeron, who were involved in arresting Thompkins for the firearm at McClymonds High, also testified about the date and circumstances of the gun possession. Valle testified that Thompkins's home was searched in November 2007 and narcotics, ammunition, cash and other items were seized, resulting in Thompkins's conviction of possession of heroin for sale. Although this was case-specific testimony, an officer who conducted the search also testified about the events, including the date of the offense. Exhibit 19 was Thompkins's conviction record for that offense. Such records, subject to a special hearsay exception and prepared by public employees, were admissible to prove Thompkins's commission of the underlying offense. ( Evid. Code, §§ 452.5, 1280 ; Duran , supra , 97 Cal.App.4th at p. 1461, 119 Cal.Rptr.2d 272.) Conviction records in general are not testimonial in nature because they are "prepared to provide a chronicle of some act or event relating to the public employee's duty" and are not "produced to be used in a potential criminal trial or to determine whether criminal charges should issue." ( People v. Taulton (2005) 129 Cal.App.4th 1218, 1225, 29 Cal.Rptr.3d 203 [§ 969b packets are nontestimonial]; see also Meraz I , supra , 6 Cal.App.5th at p. 1176, fn. 10, 212 Cal.Rptr.3d 81 ; but see Garcia , supra , 46 Cal.App.5th at pp. 171-172, 259 Cal.Rptr.3d 600 [conviction records are testimonial when used to prove the date of the prior conviction].) The jury instructions show this prior offense was among those the jury was invited to consider in making its findings on the "pattern of criminal gang activity" for the gang enhancements.
Thompkins is quick to allege these statements were based on police reports and hence were testimonial hearsay inadmissible under Sanchez and Crawford . In fact, Thompkins's appellate counsel at oral argument suggested that all of Valle's testimony about gang-related activity was learned from police reports. The record does not support that contention.
Officer Valle also testified that Thompkins was arrested and convicted of being a felon in possession of a firearm in October 2009, which in Valle's opinion had been committed for the benefit of Lower Bottoms. Again, the arresting officer testified about the date of the offense and the underlying events. The conviction records for that offense were also admitted as exhibits 17 and 18. And though the jury was unaware, Thompkins admitted the alleged prior convictions in court, so we are not concerned about the reliability of the conviction information.
It is unnecessary that the predicate offenses have been committed for the benefit of the gang. (Gardeley , supra , 14 Cal.4th at p. 610, 59 Cal.Rptr.2d 356, 927 P.2d 713.)
It was not Sanchez error to allow Valle to testify about Thompkins's prior arrests and convictions because nonhearsay evidence was also admitted to prove the same predicate offenses. (See Sanchez , supra , 63 Cal.4th at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Thompkins's own prior convictions, which were supported by admissible evidence, were proof enough of the two predicate offenses necessary to establish a "pattern of criminal gang activity" and to make Lower Bottoms a "criminal street gang" (§ 186.22, subds. (b)(1), (e) & (f)), if the jury believed he was a gang member, and there was overwhelming evidence he was.
(b) Fox's Prior Arrest and Conviction
Valle testified that Fox had been convicted of selling narcotics on Lower Bottoms turf, and Thompkins was with him when he was arrested. The conviction record for that offense was also admitted under a statutory hearsay exception ( Evid. Code, § 452.5 ). The conviction record told the jury everything that Valle told them about the prior conviction, except the details of the arrest (that it was conducted in Lower Bottoms gang territory in the company of Thompkins). But those details were provided by Officer Eric Kim, who conducted surveillance of Fox's hand-to-hand drug transactions in Lower Bottoms territory and testified that Thompkins was present during those sales, and Officer Joel Hassna, who arrested Fox and Thompkins together on January 17, 2009, after the narcotics transaction in question and found a firearm on Fox. Again, in light of the other testimony, there was no Sanchez error.
(c) Predicate Offenses by Other Lower Bottoms Gang Members
Officer Valle testified about three sets of predicate offenses by Lower Bottoms gang members, all of which were cumulative to the predicate offenses by Fox and Thompkins. First, Valle testified about a 2006 murder and attempted murder by Lionel Shell, Tonney Killensworth, Mario Hairston and Maurice Johnston. (§ 186.22, subd. (e)(3).) Although there was no evidence Officer Valle was personally involved in arresting or investigating these individuals, he testified about their crimes as predicate offenses. His testimony was backed up by certified conviction records of all four defendants. The conviction records show gang enhancements were imposed on some of the participants. Thus, there was independently admissible evidence of the gang participation in a murder and attempted murder, and the only bit of Valle's testimony that was not so proved was the name of the gang to which they belonged. Even if we assume for purposes of argument that this sliver of Valle's testimony was case-specific hearsay ( Ochoa , supra , 7 Cal.App.5th at pp. 588-589, 212 Cal.Rptr.3d 703 ), we cannot say that without its admission defendants were likely to see a better outcome. ( Watson , supra , 46 Cal.2d at p. 836, 299 P.2d 243 ; People v. Calhoun (2019) 38 Cal.App.5th 275, 316, 250 Cal.Rptr.3d 623 ( Calhoun ) [ Watson standard applied to nontestimonial Sanchez error]; Flint , supra , 22 Cal.App.5th at pp. 1003-1004, 231 Cal.Rptr.3d 910 [same]; Ochoa , supra , 7 Cal.App.5th at pp. 584-585, 589, 212 Cal.Rptr.3d 703 [same].) There was more than enough nonhearsay or hearsay excepted evidence to prove the gang enhancements, and this evidence was less inflammatory than the circumstances of the current offenses.
The second predicate offense by a nondefendant was Anthony Green's possession of a firearm as a convicted felon in 2007. (§ 186.22, subd. (e)(31).) Green's conviction records do not show a gang enhancement was imposed, but Valle had "previously investigated" Green for "robberies and shootings in West Oakland" and was personally involved in arresting him on the weapons offense. He knew Green's moniker and history of his rivalries within the gang. His testimony about the offense and Green's membership in Lower Bottoms was not hearsay. Green's abstract of judgment was also admitted. The third predicate offense by nondefendants was a second-degree robbery in 2010 by Sammy Standberry and Matthew Thompkins (a cousin of the defendant in this case, who pled guilty to attempted robbery). (§ 186.22, subd. (e)(2).) Those conviction records did not include gang findings. Though the records establish that the named individuals were convicted of robbery and attempted robbery, they do not establish that these two men were members of Lower Bottoms street gang, though Valle testified they were. Valle knew they were Lower Bottoms gang members firsthand based on having "previously investigated both Mr. Standberry and Mr. [Matthew] Thompkins for their involvement in the Lower Bottoms gang along with committing robberies and shootings throughout the west Oakland area." Thus, Valle had personal knowledge of the perpetrators’ gang membership, and his testimony was not hearsay, case-specific or otherwise.
The second and third nondefendant predicate offenses, at least, were established without reliance on improper expert hearsay testimony. Even though Valle's evidence of the Lower Bottoms membership of the nondefendants who committed the first set of predicate offenses, it was harmless error under Watson . We bear in mind here that the charged offenses also qualify as predicate offenses. ( Tran , supra , 51 Cal.4th at p. 1046, 126 Cal.Rptr.3d 65, 253 P.3d 239.) The jury found Thompkins and Fox guilty of two murders committed together for the benefit of Lower Bottoms. When considered with all the other properly admitted evidence probative of the gang enhancements, the errors in admitting case-specific hearsay were harmless.
g. The Rest of the Case-specific Hearsay Was Either Independently Corroborated or Harmless as to Thompkins
i. Thompkins's Admissions of Gang Membership at Jail Intake
Officer Valle's testimony about Thompkins's admissions of gang membership while being booked into jail was case-specific hearsay under Sanchez because Valle did not personally perform the intake, and it was elicited in this trial specifically to show this defendant's gang membership. Valle went beyond the arrest in this case and testified Thompkins had admitted gang membership "on numerous occasions" when he was booked into jail. We agree with defendants that Valle's hearsay testimony concerning their gang admissions at jail intake was case-specific and therefore inadmissible under Sanchez , as it was under Elizalde . (See Vega-Robles , supra , 9 Cal.App.5th at p. 415.) But Deputy Blaylock, who heard Thompkins make the gang admission, also testified. Coming from that witness, Thompkins's gang admission was admissible as the statement of a party opponent. ( Evid. Code, § 1220.) Of course, we cannot ignore the Elizalde error—which we have already held was harmless beyond a reasonable doubt—but analyzed strictly from a hearsay perspective, Blaylock's testimony was subject to a hearsay exception.
Gang affiliation admissions made at jail intake are not testimonial under Crawford . ( People v. Leon (2016) 243 Cal.App.4th 1003, 1018-1020, 197 Cal.Rptr.3d 600 ; see Elizalde , supra , 61 Cal.4th at p. 532, fn. 7, 189 Cal.Rptr.3d 518, 351 P.3d 1010 ["This case in no way implicates the court's Crawford jurisprudence."].) Even if the statements were testimonial, though, allowing the deputies’ testimony, being a repetition of defendants’ own statements, would not be Crawford error. Admission of a defendant's own prior statements, under oath or not, does not implicate the confrontation clause. ( Vasquez v. Kirkland (9th Cir. 2009) 572 F.3d 1029, 1037 [admission of defendant's prior statements is tested under the Fifth Amendment, not the Sixth]; United States v. Nazemian (9th Cir. 1991) 948 F.2d 522, 526 [defendant "cannot claim that she was denied the opportunity to confront herself"]; Laney v. Felker (C.D. Cal. 2010) 2010 WL 1610129, 2010 U.S. Dist. Lexis 38803, *20-*23 [collecting cases].) ii. Police Contacts with Thompkins While in the Company of Lower Bottoms Gang Members
Officer Valle also testified about several occasions when Thompkins was contacted by police in the company of other Lower Bottoms gang members. In August 2007, he was contacted by police in a vehicle stop in East Oakland in the company of another Lower Bottoms gang member. In December 2008, March 2009, and May 2009, Thompkins was contacted or observed by police in West Oakland with other Lower Bottoms gang members. And in August 2009, Thompkins was with another Lower Bottoms gang member, Terrence Clayton, when Clayton was shot. These contacts, which apparently did not result in arrests or convictions, were not the subject of testimony by the officers who actually made contact or conducted surveillance.
There was no testimony that Officer Valle himself made these contacts or observations. We therefore regard these statements as case-specific hearsay and hence Sanchez error. Defendants have not demonstrated, however, that the statements were testimonial in nature. Given the scope of Valle's duties in the gang unit, it is entirely possible this information was acquired informally from other officers. It is also possible Valle learned of the contacts through police reports, which are generally considered testimonial ( Sanchez , supra , 63 Cal.4th at pp. 694-697, 204 Cal.Rptr.3d 102, 374 P.3d 320 ; see also People v. Meraz I , supra , 6 Cal.App.5th at p. 1176, fn. 10, 212 Cal.Rptr.3d 81), or field identification cards, which may or may not be testimonial in nature ( Sanchez , supra , at pp. 672, 697, 204 Cal.Rptr.3d 102, 374 P.3d 320 ; see Meraz II , supra , 30 Cal.App.5th at pp. 781-783, 242 Cal.Rptr.3d 1 ). Ordinarily, the proponent at trial of proffered hearsay—in this case, the People—has the burden of establishing that it is admissible under an exception to the hearsay rule ( People v. Morrison (2004) 34 Cal.4th 698, 724, 21 Cal.Rptr.3d 682, 101 P.3d 568 ) and that it is not testimonial ( Ochoa , supra , 7 Cal.App.5th at p. 584, 212 Cal.Rptr.3d 703, citing Idaho v. Wright (1990) 497 U.S. 805, 816, 110 S.Ct. 3139, 111 L.Ed.2d 638 [state has the burden of proof regarding admissibility under confrontation clause] ). When there has been no trial objection, and the source of the hearsay has not been developed, it may be impossible to tell whether the hearsay is testimonial or nontestimonial. Whether the burden of proof at trial carries over to require the prosecution to establish the hearsay was nontestimonial on appeal is a matter of some disagreement. Some cases would suggest defendants must bear the burden of showing error on appeal, and a failure to do so means that the unobjected-to error invokes only a Watson standard of prejudice. ( Anthony , supra , 32 Cal.App.5th at pp. 1139-1140, 244 Cal.Rptr.3d 499 ; Ochoa , supra , 7 Cal.App.5th at pp. 584-586, 589, 212 Cal.Rptr.3d 703 ; but see People v. Martinez (2018) 19 Cal.App.5th 853, 860-861, 228 Cal.Rptr.3d 271 [where there was a combination of testimonial and nontestimonial hearsay error, the reviewing court applied the Chapman standard]; Sanchez , supra , 63 Cal.4th at p. 698, 204 Cal.Rptr.3d 102, 374 P.3d 320.) Regardless of which approach we take, the end result is the same: the error was harmless beyond a reasonable doubt. ( Chapman , supra , 386 U.S. at p. 24, 87 S.Ct. 824.)
iii. Testimony About the Shooting of Thompkins in 2007
Officer Valle testified that in August 2007, Thompkins was shot on Center Street in West Oakland, purportedly by a rival gang member, and Thompkins refused to cooperate with the police investigation. On cross-examination he testified Thompkins had been shot in the back by someone wearing a ski mask. So far as we are aware, there was no corroborating testimony by officers involved in the investigation. This was case-specific hearsay and inadmissible. We do not know how Valle became aware of these facts, though. Valle could have learned about the crime from police reports, in which case the hearsay would have been testimonial. Given his description of his responsibilities on the gang unit and in the investigation of the Sweet Jimmie's shooting, however, it is likely he gained access to this information informally from other officers as part of an ongoing crime-fighting effort or through the investigation of the Sweet Jimmie's shooting, rather than from police reports or other testimonial sources alone.
Whichever standard of prejudice we apply—state or federal—we find the error harmless as to Thompkins, about whom there was plentiful admissible evidence of gang involvement. h. The Case-Specific Hearsay Was Either Independently Corroborated Or Harmless as to Fox
Officer Valle's testimony and opinion about Fox's gang membership and gang history stand on somewhat different footing because his knowledge was not based on his own participation in previous investigations of Fox. He testified he had never met Fox prior to the Sweet Jimmie's shooting. None of this testimony violated Sanchez .
i. Fox's Admission of Gang Membership at Jail Intake
Officer Valle testified to Fox's admission of gang membership when he was booked into jail after his arrest in May 2011, corroborated by the deputy who actually heard Fox make the admission. Valle's testimony did not violate Sanchez because Deputy Pischke's testimony was subject to a hearsay exception. ( Evid. Code, § 1220.) We see no Sanchez error here.
ii. Fox's Association with Thompkins
To prove the gang enhancement against Fox, the prosecution sought to prove he was a close associate of Thompkins's, as to whom the gang evidence was stronger. Officer Valle testified, among other things, that Fox and Thompkins had been arrested together in Lower Bottoms territory for a drug offense. Fox claims this was case-specific hearsay. But the conviction itself was proved by conviction records. Moreover, as noted above, Officers Kim and Hassna also testified that Thompkins and Fox were together in Lower Bottoms territory when Hassna arrested them for a drug sale that resulted in Fox's conviction. None of the information conveyed by the expert's case-specific hearsay about Fox's past criminality went uncorroborated. Therefore, it was not error under Sanchez . ( Sanchez , supra , 63 Cal.4th at p. 686, 204 Cal.Rptr.3d 102, 374 P.3d 320.)
iii. Officer Valle's Ultimate Opinion That the Sweet Jimmie's Shooting Was for the Benefit of the Gang Was Admissible Expert Opinion
Officer Valle's testimony was by no means the sole basis for the jury's finding on the gang enhancement. Nelson also testified that both Thompkins and Fox were Lower Bottoms gang members and members of the 30 Gang subset. Fox and Thompkins spent the day together on Easter 2011, along with Nelson and James. Nelson testified the group retrieved the assault rifle to engage in a preemptive strike against members of the Acorn gang. The foursome's return to Sweet Jimmie's speaks volumes about their anticipation of a gang-related confrontation where the weapon would be used for gang purposes, even if used only defensively in the event of gang warfare. Hence, the firearm's presence itself was for the benefit of the gang's conflict with Acorn, and Fox provided the weapon.
The benefit/direction/association testimony was allowable as the opinion of an expert. By its nature, such testimony is a conclusion drawn from known facts—an opinion—not an ascertainable historical fact. Valle's opinion that Thompkins's Sweet Jimmie's shooting was undertaken "for the benefit of, at the direction of, or in association with" a criminal street gang was properly admitted. Most statements he made as the basis for his opinion either were not hearsay, were supported by testimony from others that was not hearsay, or were supported by admissible criminal records. The expert's opinion that Thompkins's shooting into the bar was for the benefit of his gang was fully supported. And because Fox (1) provided the weapon to Thompkins, (2) spoke with Thompkins in the car about killing Acorn gang members, (3) started a confrontation with the crowd at Sweet Jimmie's, (4) signaled Thompkins when he was ejected from the bar, (5) drove the getaway car, and (6) took back possession of the weapon with a view to disposing of it, he could also reasonably be seen as acting for the benefit of the gang. iv. The Case-specific Hearsay, Considered Collectively, Was Not Prejudicial Under the Watson or the Chapman Harmless Error Standard
Though failure to object did not waive the alleged Crawford error for appeal ( Perez , supra , 9 Cal.5th at p. 4, 259 Cal.Rptr.3d 195, 459 P.3d 1 ), some cases have held that, to the extent the failure to object resulted in an inadequate record, the reviewing court will not assume constitutional error, and have applied the Watson standard of prejudice. ( Garcia , supra , 46 Cal.App.5th at p. 167, 259 Cal.Rptr.3d 600 ; Anthony , supra , 32 Cal.App.5th at pp. 1139-1140, 244 Cal.Rptr.3d 499 ; Ochoa , supra , 7 Cal.App.5th at pp. 584-586, 589, 212 Cal.Rptr.3d 703.) Under that view, defendants have not carried their burden of showing Crawford error on appeal because they have not shown that any of the challenged hearsay was testimonial. The Watson standard applies to nontestimonial Sanchez error. ( Calhoun , supra , 38 Cal.App.5th at p. 316, 250 Cal.Rptr.3d 623 ; Flint , supra , 22 Cal.App.5th at pp. 1003-1004, 231 Cal.Rptr.3d 910 ; see Sanchez , supra , 63 Cal.4th at pp. 684-685, 204 Cal.Rptr.3d 102, 374 P.3d 320.) On the other hand, where there is a combination of testimonial and nontestimonial hearsay error, and an adequate record has been made to evaluate the effect of the testimonial aspects of it, the reviewing court must apply the Chapman standard. (See Sanchez , supra , 63 Cal.4th at pp. 698-699, 204 Cal.Rptr.3d 102, 374 P.3d 320 ; People v. Martinez , supra , 19 Cal.App.5th at p. 861, 228 Cal.Rptr.3d 271.) Some aspects of the STEP Act proof that was admitted here do raise potential issues under Crawford . The admission of conviction records, for example, may have violated the confrontation clause to the extent they were offered to prove anything other than the fact of each conviction. ( Garcia , supra , 46 Cal.App.5th at pp. 171-172, 259 Cal.Rptr.3d 600 [under Kirby v. United States (1899) 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890, "records of convictions used to prove facts other than the fact of conviction itself are testimonial"].) But even assuming federal constitutional error was involved, we find any Crawford error that occurred in this trial harmless beyond a reasonable doubt ( Chapman , supra , 386 U.S. at p. 24, 87 S.Ct. 824 ) in light of the wealth of evidence of gang involvement that was properly admitted. ( People v. Bell (2020) 47 Cal.App.5th 153, 196-197, 260 Cal.Rptr.3d 592 ; Chapman , supra , 386 U.S. at p. 24, 87 S.Ct. 824.) We are confident the gang expert in this case assisted the jury in the manner intended under Evidence Code section 801. By weaving together a variety of pertinent evidentiary threads, he made the whole tapestry of defendants’ past crimes and other gang-related conduct more comprehensible and accessible to the jury. The People were entitled to make the best case they could that Thompkins and Fox were not just two mutually protective neighborhood toughs who misjudged a perceived slight from a stranger and overreacted, turning it into a provocation, which led to unspeakable but unplanned violence. Their gang histories, as comprehensively explained by Valle, helped to dispel any such notion. Even if, by prevailing evidentiary standards the proof offered in the People's STEP Act case might have been more discriminating—as we would expect to see in a post- Sanchez trial—we have no doubt the jury's verdict on the gang enhancements would have been the same in this case absent any improperly admitted gang-related proof under Sanchez or Crawford .
See footnote *, ante , page 186.
See footnote *, ante .
IV. DISPOSITION
The judgment is partially reversed and partially affirmed.
The judgment on counts 1 and 2 is reversed, and the matter is remanded solely for resentencing as to both defendants, specifically to allow the judge to exercise his discretion on whether to impose or strike the firearm enhancements found true with respect to counts 1 and 2. ( § 12022.53, subd. (h).) The special circumstance finding, as a matter of law, applies only to count 2. The judge may impose, and the abstract of judgment prepared after resentencing must reflect, a special circumstance finding only on count 2.
The judgment on counts 3 through 7 and related enhancement findings are reversed as to both defendants due to error in giving a kill zone instruction, and the flaw in the instruction itself. Upon remand, the People may retry counts 3 through 7 and related enhancement allegations if the district attorney so elects. The judgment against Fox was also in error in that it imposed gang enhancements (§ 186.22, subd. (b)(1)(C)) on counts 3 through 7, together with firearm enhancements ( § 12022.53, subds. (b), (c) & (d) ). The gang enhancements were unauthorized. ( § 12022.53, subd. (e)(2).) The court must not repeat this error if those counts are retried and Fox is again convicted, even if the gang allegations are found true.
In all other respects the judgment is affirmed, including the judgment on count 8.
The trial court shall prepare an amended abstract of judgment for each defendant to reflect the sentences imposed on remand or after any additional trial proceedings. The amended abstracts shall correct the errors identified, ante , at page –––– of this opinion, footnote 40. The trial court is directed to forward certified copies of the amended abstracts of judgment to the Department of Corrections and Rehabilitation.
I CONCUR:
TUCHER, J.
POLLAK, P.J.
I concur in the lead opinion with one reservation. I see no reason to address the conflict between People v. Ochoa (2017) 7 Cal.App.5th 575, 212 Cal.Rptr.3d 703 and People v. Blessett (2018) 22 Cal.App.5th 903, 232 Cal.Rptr.3d 164, review granted August 8, 2018, S249250, disapproved on other grounds in People v. Perez (2020) 9 Cal.5th 1, 259 Cal.Rptr.3d 195, 459 P.3d 1, as the lead opinion does in part A.4.f.ii of the Discussion. There is no reason to decide whether testimony by a gang expert about predicate offenses by gang members should be considered admissible background information or inadmissible case-specific hearsay because, as the majority opinion goes on to hold, there is substantial nonhearsay or hearsay excepted evidence of the predicate offenses in this case. Even if the hearsay concerning predicate offenses should not have been admitted, any possible error was harmless, as the lead opinion also holds. Considerable logic supports the conflicting views in both Ochoa and Blessett. It will be for the Supreme Court to resolve the conflict.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts III.A.2, III.A.3, III.A.5, III.A.6, and III.B through III.F.