P. v. Strain CA4 (2013) · DecisionDepot

P. v. Strain CA4

Name: California Superior Court Tentative Rulings
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California Court of Appeal Jul 19, 2013 No. C062509MUnpublished

Filed 7/19/13 P. v. Strain CA4 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C062509 Plaintiff and Respondent, (Super. Ct. No. 06F04398) v. ORDER MODIFYING OPINION JEREMY DANIEL-LEE STRAIN et al., AND DENYING REHEARING [NO CHANGE IN JUDGMENT] Defendants and Appellants.

THE PEOPLE, C062652 Plaintiff and Respondent, (Super. Ct. No. 06F04398) v.

JOSEPH GORDON HOLLORAN,

Defendant and Appellant.

THE PEOPLE, 3 Crim. C062742 Plaintiff and Respondent, (Super. Ct. No. 06F04398) v.

ROBERT ANTHONY NELSON,

Defendant and Appellant.

THE COURT: It is ordered that the opinion filed herein on June 26, 2013, be modified as follows: 1. On page 29 of the opinion, at the end of the first full sentence, ending on line four, add a footnote following footnote 23, to read as follows: In a petition for rehearing, defendant Holloran argues we are not allowed to consider the circumstance that the evidence was elicited by Holloran‟s own trial counsel unless we invite supplemental briefing, because Government Code section 68081 precludes us from deciding an appeal based on an issue not proposed or briefed by the parties. However, the circumstance that the challenged evidence was elicited by Holloran‟s counsel is not a new “issue” under Government Code section 68081. The legislative history of that statute indicates the court may apply rules, principles, or theories of law to the issues raised by the parties without affording supplemental briefing. The language of the statute was amended before enactment to substitute the words “an issue” for the phrase “a rule, principle, or theory of law.” (See Assem. Amend. to Sen. Bill No. 2321 (1985-1986 Reg. Sess.) July 9, 1986; Gov. Code, § 68081 (added by Stats. 1986, ch. 1098, § 1.) Doubtless this change reflects a desire to avoid an endless cycle of mandatory rebriefings and rehearings that could be broken only by the court parroting the brief of one of the litigants. Moreover, “[s]ection 68081 does not require that a party actually have briefed an issue; it requires only that the party had the opportunity to do so. . . . [The rule of court requiring the parties to file appellate briefs] give[s] the parties the opportunity to brief any issues that are fairly included within the issues actually raised.” (People v. Alice (2007) 41 Cal.4th 668, 677.) Here, the “issue” raised by defendant was the admissibility of statements made by Nelson to Linggi. Defendant had the opportunity to brief the issue and he did, but his arguments on appeal were based on his own erroneous recitation of the facts. It was not the prosecutor who elicited the evidence about

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Rancho thing” and “You fucked with the wrong people.” He did not know who said those things. At trial, Dobbs was unable to identify his attackers. He had told a sheriff‟s deputy and testified at the preliminary hearing that a shorter, Mexican guy flanked him and stabbed him in the side with a knife, but he was not sure at trial. Nelson is Puerto Rican, and the only Hispanic male in the group. A truck from the adjacent parking lot, which may have been driven by Tweaker, drove toward the group and hit Holloran. Dobbs testified the truck drove “right into the crowd” that was kicking and stomping Dickerson, and the person that was hit was on the asphalt “[a]bout ten feet” from Dickerson. Dobbs testified that at the moment of the collision, the person who was hit was in the general area of Dickerson, but was not kicking or stomping him at that time. Dobbs testified he could not tell whether that person had kicked or stomped Dickserson. Defendants collected Holloran and fled. Dickerson suffered major trauma, with injuries to his head, including fractured facial bones, and a single injury to his wrist, which could have been a defensive wound. He was in a coma for three months. He testified from a wheelchair and was still unable to walk. At the time of trial, he was living in a facility for people with traumatic brain injury. Dobbs suffered a stab wound to his right lateral chest, a jaw fracture, and a concussion. He had surgery, during which his jaw was wired shut and a metal plate with screws was inserted into his jaw. Betty Williams testified that shortly before the attack, she and her then-boyfriend, Norman Thompson, encountered a group of people in the park -- two females who appeared Mexican, several males who appeared White, and one male who looked of “mixed” race and had “brownish-green” eyes, later identified as Nelson. One male was called Joe (Holloran‟s first name) by the others. The mixed-race male asked for a cigarette in a “stronger than polite” voice, and Thompson gave him one.

the troublemakers. Brown later saw them as part of a “swarm of guys” in the parking area, kicking and punching a person who was on the ground. Ravareau saw a Hispanic male, Holloran, and another White male run toward the park worker (Dickerson). Each man, one after the other, hit Dickerson in the upper body. She could not tell whether they hit Dickerson in the chest, face or head. Dickerson dropped to the ground after the third man punched him. The three men, including Holloran, then went to a person Ravareau learned later had been stabbed (Dobbs). She saw a “scuffle” with the three men moving their arms and hands. They appeared to assault Dobbs together. Although her recollection was hazy, she acknowledged having testified at the preliminary hearing that she saw one of the three hit the stabbing victim in the side. She turned and noticed Kent, Strain, and a third White male run toward Dickerson and kick and stomp him as he lay on the ground. She saw a vehicle strike Holloran. Angela Freitag testified at the preliminary hearing that she thought the person who got hit by a vehicle (Holloran) was part of the group “stomping” on Dickerson. After Holloran was hit by the vehicle, the other defendants loaded him into Kent‟s red Bronco and brought him to the nearby Holloran home. A neighbor heard something hit the ground as the Bronco went by, and picked it up. The object was a wallet. It contained some of Dickerson‟s identification, but there was no money in it. At the Holloran home, Nelson told Holloran‟s father, Timothy Holloran, “Dude ran over Joe.” The father told a sheriff‟s deputy that Nelson said they stopped the driver, and took his driver‟s license from him, which Nelson handed to the father. Holloran‟s married sister, Sarah Holloran Linggi, testified that Kent and Strain came to her apartment that night and said her brother had been hit by a truck. Kent was not wearing a shirt and he had dried blood smeared on his chest. Strain lived in an apartment that was directly upstairs from Linggi‟s apartment.

Kent testified he did nothing wrong. He only threw a beer at Tweaker in self- defense. He claimed that the witnesses who saw him kick or stomp Dickerson were inaccurate. He denied ever touching Dickerson. He claimed the only time he was close to Dickerson was when he picked up Holloran. Kent also denied throwing beers at Dickerson. Kent testified that he, Holloran, Strain, Nelson, and Anderson drank alcohol that day. Kent was drunk, but his intoxication did not make him madder than he would have been if he had been sober; it made him less scared. Strain, who was “sloppy” drunk, punched Brown. Kent saw Strain in an angry verbal exchange with Thompson and Williams. Strain, Holloran, and Nelson chased after Thompson. Kent headed for the parking lot, where he came upon Williams pointing at him and yelling for help. Angry at being falsely accused, Kent yelled back. Tweaker approached in a threatening manner. Kent was scared. With a beer can in his hand, Kent hit Tweaker. Dobbs, who was 20 to 25 feet away from Kent, made a movement that Kent interpreted as pulling a knife. Tweaker ran away, and Kent ran after him. When asked at trial why he chased someone he supposedly feared, Kent said he did not know. When pressed, Kent said when Tweaker ran, “it kind of made [him] not scared.” Kent claimed he did not hear Tweaker say, “I‟ll take your life.” He also said he never saw a knife in Tweaker‟s hands. Kent saw Tweaker jump into a vehicle. Kent ran to his red Bronco. From his position in the parking lot, Kent saw Strain grappling with Dickerson. They were both on their feet and each had their arms around the other‟s upper body. Kent then saw Holloran step into the road, heard the engine “rev” in the truck in which he had last seen Tweaker, and then saw the truck drive directly toward Holloran and strike him. Holloran landed where the grass met the pavement, about six to eight feet from Dickerson who, by this time, lay unconscious on the grass. Kent helped Holloran to the Bronco. Nelson straddled Dickerson and went through his pockets. Nelson kicked Dickerson once in

charged in count one. The jury found true the allegations that Strain personally inflicted GBI and caused paralysis or coma due to brain injury. The jury found the gang allegation on counts two and three not true. The trial court sentenced Strain to an indeterminate term of seven years to life on count two and imposed but stayed pursuant to section 654 a determinate term of eight years for count three and its enhancement. The jury found Holloran guilty on counts two and three -- aggravated mayhem and assault by means of force likely to produce GBI on Dickerson. The jury also found him guilty of counts four and five, assault with a deadly weapon and battery with serious bodily injury on Dobbs. The jury found true the allegations that Holloran personally inflicted GBI and caused paralysis or coma due to brain injury as to Dickerson, and personally inflicted GBI as to Dobbs. The gang allegation was found not true. And the jury found Holloran not guilty of count one, attempted murder and the lesser included offense of attempted voluntary manslaughter. The trial court, after denying Holloran‟s motion for new trial for insufficiency of evidence, sentenced Holloran to an indeterminate term of seven years to life on count two, aggravated mayhem on Dickerson, plus a consecutive determinate term of six years on count four, assault with a deadly weapon on Dobbs and the GBI enhancement. Pursuant to section 654, the court imposed but stayed three years for the assault by means of force likely to produce GBI on Dickerson charged in count three and three years for battery with serious bodily injury on Dobbs charged in count five. The jury found Kent guilty of simple mayhem as a lesser included offense to aggravated mayhem on Dickerson charged in count two and assault by means of force likely to produce GBI on Dickerson charged in count three. The jury found the GBI allegations concerning both victims and the gang allegation not true as to Kent. The jury also found Kent not guilty on count one, attempted murder, as well as the lesser included offense of attempted voluntary manslaughter, and count three, aggravated mayhem on

argued the stomping of Dickerson‟s head as he lay motionless on the ground showed express malice. The magistrate said, “. . . Upon reconsidering, . . . I‟m going to make a finding that there is enough for purposes of the preliminary hearing to hold them on an express malice finding. So I‟m going to reconsider and amend my finding of fact regarding that particular point.” As to the personal use of a knife, the magistrate wrote on the complaint, “Nelson only” and placed parentheses around the words, “with a deadly weapon, to wit, a knife, and . . . .” As to that, the magistrate said, “With regard to Count Four, that was the personal use of a knife. Now I‟m holding them all to answer on that 245 with GBI. I‟m holding them all to answer to that. But the personal use of a knife enhancement should only apply then to Mr. Nelson. That‟s the only one.” (Italics added.) Strain filed the section 995 motion to dismiss the case, claiming insufficient evidence had been presented at the preliminary hearing. Holloran joined in the motion. The trial court -- after reviewing the 1653-page preliminary hearing transcript -- denied the motion, finding the charges were supported by the evidence adduced at the preliminary hearing. 2. Analysis Our standard of review of section 995 rulings is to determine whether substantial evidence supports the decision of the magistrate holding the defendant to answer the charges. (People v. Davis (2010) 184 Cal.App.4th 305, 310-311.) A defendant must show not only that denial of the motion was erroneous, but also prejudicial. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 140 (Letner & Tobin).) Holloran cites the rule that an information cannot include charges for which a magistrate found insufficient evidence. (People v. Slaughter (1984) 35 Cal.3d 629, 652, fn. 18.) Holloran claims (1) the magistrate found insufficient evidence of the express malice required for attempted murder, at least as to defendants who did not personally stomp on Dickerson, and (2) Holloran did not stomp Dickerson because Ravareau

position would not have made the statement unless he believed it to be true.” Thus, to establish admissibility under this exception, the proponent has the burden of showing: (1) the declarant is unavailable, (2) the declaration was against the declarant‟s penal interest when made, and (3) the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Vasquez (2012) 205 Cal.App.4th 609, 619-620 (Vasquez).) “We review a trial court‟s decision about whether a statement is admissible as a declaration against penal interests for abuse of discretion.” (Vasquez, supra, 205 Cal.App.4th at p. 620.) Holloran argues Nelson‟s statement was not against Nelson‟s interests, because it was designed to shift blame to the person on top of Holloran and make Nelson a hero in Linggi‟s eyes. Holloran further contends that Nelson‟s statement should have been excluded as insufficiently reliable, because no eyewitness testified about anyone using a baseball bat, and Dobbs was stabbed only once, not four times. “Only statements that are specifically disserving to the hearsay declarant‟s penal interests are admissible as statements against penal interests.” (Vasquez, supra, 205 Cal.App.4th at p. 621.) A statement is disserving of penal interest if it subjects the hearsay declarant to the risk of criminal liability to such an extent that a reasonable person in his position would not have made the statement unless he believed it to be true. (People v. Cervantes (2004) 118 Cal.App.4th 162, 175.) We observe that the Cervantes court held the statement made in that case was specifically disserving, in part, because nothing about the statement suggested the declarant acted in self-defense. (Cervantes, supra, 118 Cal.App.4th at p. 175.) Here, arguably Nelson‟s statement amounts to a claim of defense of others, but that can only be said when the portion of the purported statement elicited by counsel for Holloran is factored into the analysis. As we have noted, on direct examination by the prosecutor, Linggi testified that Nelson did not say why he had stabbed anyone. And he said he hit someone on the head multiple times with a bat.

These statements, as related by Linggi during the direct examination of the prosecutor, were disserving of Nelson. On the other hand, the trustworthiness of Nelson‟s statements was suspect. As Holloran notes, Dobbs was stabbed only once, not four times. Moreover, neither Dobbs nor any other witness said Dobbs or anybody else was struck with a bat. And nobody said they saw anybody on top of Holloran. Arguably, the exaggeration contained in Nelson‟s statement as conveyed by Linggi makes it untrustworthy for purposes of the declaration against interest exception. (See People v. Gonzales (2011) 51 Cal.4th 894, 933 [unbelievable statements made declarant‟s statements untrustworthy].) c. Invited error/harmless error Even assuming the entire statement was not admissible as a declaration against interest, which could be considered as evidence against Holloran, Strain, and Kent, we conclude any error was both invited and harmless. The standard in People v. Watson (1956) 46 Cal.2d 818, 836–837 is applicable to state law error in the admission of hearsay. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.) Under Watson, the error is harmless unless it is reasonably probable that a result more favorable to the defendant would have been reached had the evidence not been introduced. (Watson, supra, 46 Cal.2d at p. 837.) We find that to be the case here. Here, Holloran himself introduced the portion of the statement that is the focus of his argument on appeal. Holloran was not mentioned as being involved during the prosecution‟s direct examination of Linggi; thus, Linggi effectively redacted the statement by her purported lapse of memory. Any error related to the admission of Nelson‟s assertion that he stabbed someone because that person was on top of Holloran was invited by Holloran when his trial counsel elicited that testimony for apparent tactical reasons. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 [doctrine of invited error barred defendant from challenging on appeal the trial court‟s admission of evidence,

1. Background At the hearing on the suppression motion, Deputy Christopher Baker testified he went to the hospital to check on the victims. Because he thought Holloran was just a victim, he took Holloran‟s statement without a Miranda advisement. Holloran was in a trauma emergency room at the hospital, unrestrained. No other law enforcement officers were in the room. When asked whether he “started questioning” Holloran without a Miranda warning, Deputy Baker said, “Not questioning him. I‟m speaking to him in regards to what took place.” The interview began at 8:47 p.m. and lasted no more than 15 minutes. Deputy Baker remained at the hospital in the vicinity of the victims waiting for an update on Holloran and Dickerson. At 11:30 p.m., a supervisor contacted Deputy Baker and told him Holloran was a suspect and to arrest him. Another deputy‟s report indicated Holloran was identified as a “possible suspect” at 8:16 p.m. That deputy had been assigned to maintain the crime scene at the park and he had not been to Holloran‟s home or the hospital that night. Nor did he communicate with Deputy Baker, who was dispatched to the hospital. Holloran‟s father testified he went to the hospital a few minutes after Holloran had been transported. When he arrived, he tried to see his son, but two deputies, one of whom was Deputy Baker, told him he could not see his son “right then.” The father considered rushing past the deputies, but one said, “don‟t do it.” One of the deputies said he had already talked to the son. The father testified he learned his son was being arrested around 10:15 p.m. The trial court denied the suppression motion, stating: “The court does find credible evidence that Miranda does not apply to this interview. Miranda has two prongs: It requires custody, and it requires interrogation, and I do not find in this case that Mr. Holloran was in custody or detained, nor was he interrogated. [¶] He was being interviewed as a potential victim. He was not restrained in any way, and the court finds that Miranda does not apply.”

The trial court admitted the evidence of defendant‟s statement at trial, admonishing the jury it could be used only against Holloran. The prosecution argued to the jury that Holloran‟s claim of self-defense at trial was undercut by his failure to assert it in his statement to the deputy at the hospital and that his false statement was evidence of Holloran‟s consciousness of guilt. 2. Analysis Miranda applies only to custodial interrogations. (People v. Ochoa (1998) 19 Cal.4th 353, 401.) In reviewing the trial court‟s determination that defendant was not in custody, we apply a deferential substantial evidence standard of review to the trial court‟s conclusions regarding the historical facts. (Id. at p. 402.) We independently review the mixed question of law and fact regarding whether a reasonable person would have felt free to terminate the interrogation. (Ibid.) “Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] Although no one factor is controlling, the following circumstances should be considered: „(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.‟ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect‟s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were „aggressive, confrontational, and/or accusatory,‟ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403-1404, fn. omitted.)

In order for Miranda to apply, the restraint must come from law enforcement. In People v. Mosley (1999) 73 Cal.App.4th 1081 (Mosley), the court held that the defendant was not in custody. There, a deputy questioned the defendant while the defendant was in an ambulance being treated by paramedics for a gunshot wound. (Mosley, supra, at pp. 1085-1086.) The Mosley court stated, “The record shows that defendant was in the custody and care of the paramedics who responded to a call for assistance. He was on a gurney and being treated by paramedics when [the deputy] entered the ambulance. [The deputy] did not intend to place defendant under arrest at that time. He simply wanted to find out what had happened at the scene of the shooting. He did not know how defendant was involved and whether defendant was a victim or not.” (Id. at p. 1089.) “The question before this court is whether a person who is in the physical custody and care of medical personnel such as paramedics and who is being treated in an ambulance for a gunshot wound at the time of an interview with a police officer should be considered to also be „in custody‟ for purposes of triggering the requirements of the Miranda decision.” (Mosley, supra, 73 Cal.App.4th at p. 1089.) The Mosley court answered no. (Id. at pp. 1090-1091.) The court in Mosley cited with approval a federal case holding that an interview in a hospital was not in a custodial setting within the meaning of Miranda, which concerns itself with an interrogation in a police-dominated atmosphere. (Mosley, supra, 73 Cal.App.4th at p. 1090, citing United States v. Martin (9th Cir. 1985) 781 F.2d 671, 673 [defendant was not in custody when questioned by police at hospital where no facts indicated law enforcement officers were involved in the defendant‟s hospitalization or did anything to extend his stay].) The Mosley court reasoned, “Any restraint of defendant‟s freedom of action was caused by the need to treat his gunshot wound, which was still bleeding and was actively being treated during the interview. He had not been placed under arrest because the police did not know what had happened that caused him to be shot. If he was a victim of a shooting they needed information to put

out a broadcast on his assailants. They knew that two shootings had occurred, but they did not know at the time of the interview what started the shooting, who was involved, or even if the two shootings were related to each other. Additionally, we note that the interview was in view of and in the presence of medical personnel who continued to treat defendant during the brief interview. We also note that the questioning was not accusatory or threatening, that defendant was not handcuffed, that no guns were drawn, and that defendant was about to be transported to a hospital and not to a police station or jail.” (Mosley, supra, 73 Cal.App.4th at p. 1091.) A reasonable person in the defendant‟s position would not have believed he was in police custody, and so no Miranda advisement was required. (Ibid.) Here, the totality of the circumstances establish that defendant Holloran was not in custody. The interview lasted no more than 15 minutes. Holloran was interviewed by a single deputy. There was no evidence of accusatory or threatening behavior by the deputy. The interview did not take place in a police-dominated atmosphere. It took place in the hospital, where Holloran had voluntarily sought treatment. Holloran was not cuffed or restrained. Any restraint on Holloran‟s freedom of action came not from law enforcement, but from physical injuries he sustained upon being hit by a truck, which apparently were not that bad since he was conversing with Kent and Strain at the sheriff‟s station hours later. Additionally, at the time of the interview, the events at the park had only just occurred and were still being sorted out. Deputy Baker sought information to help find the perpetrator of the hit and run. Holloran places great emphasis on the timing of when he became a suspect. Yet there was no evidence Holloran was told he was the focus of any investigation prior to or during the interview. In Stansbury v. California (1994) 511 U.S. 318 [128 L.Ed.2d 293] (Stansbury), the United States Supreme Court said, “We hold, not for the first time, that an officer‟s subjective and undisclosed view concerning whether the person being

interrogated is a suspect is irrelevant to the assessment whether the person is in custody.” (Stansbury, supra, 511 U.S. at p. 319, italics added.) An officer‟s subjective belief may become a factor in the custody analysis “only if the officer‟s views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave.” (Id. at p. 325.) Citing Stansbury, Holloran argues that even if Deputy Baker did not know Holloran was a suspect, his subjective belief is irrelevant to the custody analysis. Holloran turns Stansbury on its head. Baker‟s ignorance of Holloran‟s status as a potential suspect is relevant because if he did not know Holloran was a suspect, he could not have communicated that status to Holloran. Defendant cites as analogous Mincey v. Arizona (1978) 437 U.S. 385, 399 [57 L.Ed.2d 290], in which the court reasoned the defendant in the hospital was at the complete mercy of the peace officer. Mincey is inapposite. In Mincey, the defendant was hospitalized after he was shot by narcotics officers who were executing a search warrant at his house. During the raid, the defendant shot one of the officers in the exchange of gunfire. (Mincey, supra, 437 U.S. at pp. 387, 396.) Police interviewed the defendant about the shooting while the defendant was in intensive care. The defendant was told he was under arrest and given the Miranda warnings. (Id. at p. 396.) The defendant repeatedly asked for a lawyer, but the officer persisted, only stopping for brief periods when the defendant was being treated or lost consciousness temporarily. (Id. at pp. 396, 401.) The defendant‟s statements were used to impeach his trial testimony. (Id. at p. 397.) The issue presented in Mincey was whether the defendant‟s statement was involuntary, not whether he was in custody for Miranda purposes (id. at pp. 398-402), and the facts in Mincey are nothing like the evidence here. Mincey is of no help to Holloran.

„controlled and directed‟ attack or an attack of „focused or limited scope‟ may provide substantial evidence of such specific intent.” (Ibid.; see id. at p. 1163 [evidence that defendant slashed victim‟s face many times with a knife supported aggravated mayhem conviction]; People v. Park (2003) 112 Cal.App.4th 61; People v. Lee (1990) 220 Cal.App.3d 320, 326.) If the evidence instead shows only an indiscriminate or random attack in an explosion of violence upon the victim, it is insufficient for a finding of aggravated mayhem. (Lee, supra, 220 Cal.App.3d at p. 326 [insufficient evidence of aggravated mayhem where defendant hit victim three times in the face with his fist and kicked him at least twice somewhere on his body].) Strain argues the evidence here shows only an alcohol-induced frenzy of violence. Holloran says the evidence shows defendants either coming to the aid of a beleaguered friend (Kent) or exploding in violence. The evidence showed a focused attack. Dickerson‟s coma and paralysis were caused by the stomping and kicking to his head. Although some witnesses described blows to Dickerson‟s head and “body,” the medical evidence showed that all of the injuries were to Dickerson‟s head, except for a laceration to the wrist, which was consistent with a defensive wound incurred as the victim tried to fend off the blows to his head. Among the injuries to Dickerson‟s head were multiple facial fractures. Ravareau testified that Dickerson‟s face was so bloody that she could not see it. The finding of specific intent here was bolstered by Kent‟s testimony that, as defendants went to leave the park, Nelson went back to Dickerson, who was already unconscious, and kicked him one last time. (See Quintero, supra, 135 Cal.App.4th at p. 1159 [after slashing victim‟s face with a knife, defendant said, “ „Fuck you, fool,‟ ” and asked, “ „How do you like this?‟ ”].) That defendants had been drinking does not reduce their culpability from aggravated mayhem to mayhem. Voluntary intoxication may be a defense to a specific intent crime but only if the intoxication prevented the defendant from forming the

specific intent. (§ 22; People v. Saille (1991) 54 Cal.3d 1103, 1119.) Although there was evidence that defendants were drinking alcohol, defendants cite no evidence that alcohol consumption prevented any of them from forming the specific intent to maim. Holloran argues there was no evidence he himself hit Dickerson in the head. Holloran argues that prosecution witnesses Ravareau and Dobbs said he was not one of the kickers or stompers, and Williams, retreating from her preliminary hearing testimony, said she was not sure if Holloran did anything to Dickerson. Holloran says since he did not engage in stomping, he did not commit aggravated mayhem. Ravareau did testify that she did not see Holloran kicking or stomping Dickerson and Holloran was not standing in the immediate area of Dickerson at that time. Dobbs testified that the person who was struck by the vehicle was not kicking or stomping Dickerson at the moment he was struck. But Dobbs also testified that after he was attacked, the people who attacked him headed toward the others who were attacking Dickerson. He estimated there were six to seven people kicking Dickerson. According to Dobbs, the truck drove “right into the crowd” that was kicking Dickerson and the person who was struck was about 10 feet away from Dickerson at the time. Williams testified that after chasing her boyfriend, the person called Joe and the mixed-race male punched at one of the people who tried to help her, and when that person retreated, the two then joined three people who were kicking and stomping the person on the ground. We also note that, although Freitag said she was not sure, she thought Holloran was one of the people she saw kicking Dickerson. Additionally, there was evidence that Holloran was actually one of the kickers in the surreptitiously recorded conversation he had with Strain and Kent at the sheriff‟s station. Holloran said he was “kicking him.” On appeal, Holloran says that, while these words appear on the transcript made available to the jurors during the playing of the video recording in the courtroom (“But I was like kicking him. Bang, bang, bang. And I

started walking up the alley (unintelligible), pow, get hit by the truck”), the words (particularly the word “I”) cannot be discerned on the recording. We have reviewed the recording and conclude this was a matter for the jury to decide. And we note that Kent, in his trial testimony, agreed that Holloran said he kicked the victim. Kent -- a person who was presumably familiar with his friend Holloran‟s voice -- said that while he had no independent recollection of the conversation, he thought the transcript matched what he heard Holloran say in the recording played in court. Looking at the evidence in the light most favorable to the judgment, there was substantial evidence Holloran was, in fact, one of the kickers. Additionally, even if Holloran did not kick Dickerson, the evidence was sufficient to establish liability for aggravated mayhem as an aider and abettor. Holloran disagrees, contending there was no evidence he intended to promote or encourage a maiming injury. Holloran cites People v. Beeman (1984) 35 Cal.3d 547, for the proposition that one who just aids but does not abet is not guilty as an aider and abettor. (See People v. Campbell (1994) 25 Cal.App.4th 402, 412-413 [“aid” requires conduct; “abet” requires that the conduct be accompanied by the requisite criminal state of mind, i.e., knowledge of and intent to facilitate the perpetrator‟s unlawful purpose].) However, the jury was instructed not only on aiding and abetting aggravated mayhem, but also on aggravated mayhem as the natural and probable consequence of an aided and abetted assault by means of force likely to produce GBI. Holloran concedes that based on Ravareau‟s testimony, there is substantial evidence Holloran punched Dickerson in the “upper body” just before the kicking and stomping. The prosecutor argued to the jury, “So if you decide Mr. Holloran committed an assault with force likely, okay, . . . never himself had the intent to disable or disfigure as required under aggravated mayhem, all he signed on for was this group assault, but . . . if anybody else involved in that group assault committed . . . an aggravated mayhem and th[at] crime[] [is a] natural and probable result[] of a group assault like this, then Mr. Holloran‟s guilty of . . . the

to have to decide if these guys knew of a stabbing, okay; knew of the criminal intent and intended to aid and abet it. [¶] . . . [¶] The GBI allegation for Mr. Dobbs is a little different. . . . All you need to decide is, did a defendant personally inflict great bodily injury on Mr. Dobbs? Okay. [¶] Now, although this is the -- an assault with a knife, somebody broke his jaw, too.” The prosecutor argued both Nelson and Holloran inflicted GBI on Dobbs. And the prosecutor advanced a group assault theory to explain how the GBI allegation related to Dobbs could be found true as to Holloran. (See fn. 14, ante.) The prosecutor also argued the broken jaw as a basis for count five. In Holloran‟s motion for new trial, the trial court declined to set aside the GBI finding, noting the broken jaw constituted great bodily injury. Holloran argues the GBI finding cannot properly be based on his breaking Dobbs‟s jaw, because the broken jaw qualified as an element of count five, battery with serious bodily injury, not as the injury appended to count four. But Holloran cites no authority precluding use of the broken jaw for both charges, as long as there is no double punishment. (§ 654.) Here, the court stayed Holloran‟s sentence on count five, so double punishment is not an issue. Nor does Holloran cite authority supporting his assertion that only an injury inflicted by a deadly weapon can be the section 12022.7 GBI when that enhancement is appended to a charge of assault with a deadly weapon. Section 12022.7, subdivision (a) requires that the defendant “personally inflict[] great bodily injury . . . in the commission of a felony.” (Italics added.) The continuum of time covered by the language “in the commission of” has been interpreted to include any time during the course of a “continuous transaction.” (See People v. Frausto (2009) 180 Cal.App.4th 890, 902-903 [section 12022.53, subdivision (d) enhancement for shooting causing death or GBI to a murder victim also applied to two attempted murder charges for other victims who were not wounded, but were shot at immediately before and after the defendant shot at the murder victim].) As for the injury inflicted, the statutory language of section 12022.7, subdivision (a) does not link the injury to the

manner of committing the charged felony. Here, great bodily injury was inflicted -- a broken jaw -- during “the commission of a felony” for which Holloran was convicted as an aider and abettor. And Dobbs also sustained another injury that would qualify as GBI -- a concussion. The evidence was sufficient to support a true finding on the GBI enhancement against Holloran as a participant in a group assault during which Dobbs sustained a broken jaw and a concussion. (See People v. Modiri (2006) 39 Cal.4th 481, 495-497; People v. Dunkerson (2007) 155 Cal.App.4th 1413, 1418.) Holloran argues that, even if the jurors could use either the stab wound or the broken jaw as the basis for the GBI finding against him, the jurors were not instructed that they had to agree which injury he personally inflicted. Holloran demands reversal for lack of a unanimity instruction. However, a unanimity instruction was unnecessary because, although the prosecutor mentioned to the jury that Williams at one point said Holloran also had a knife, the prosecutor essentially conceded it was Nelson who stabbed Dobbs. (People v. Russo (2001) 25 Cal.4th 1124, 1132 [unanimity instruction not required if prosecutor makes election in closing argument].) The prosecutor argued, “there‟s only one stabber in this case. Okay. It‟s almost certainly Mr. Nelson. . . . [¶] . . . [¶] Now, although this is the -- an assault with a knife, somebody broke his jaw, too.” Holloran argues in his reply brief that the trial court negated any election in responding to the jury‟s question during deliberations asking, “On the issue of count four on Dobbs, does the great bodily injury include the stab wound[] (in regards to Holloran).” The court responded, “the determination of whether the stab wound constitutes great bodily injury is made by you the jury, after applying the facts, as you determine them, to the law. [¶] . . . It is for you, the jury, to decide if the stab wound constitutes great bodily injury.” Holloran claims this answer led jurors to believe they could find Holloran personally inflicted GBI caused by the stabbing even if Nelson was the one who stabbed Dobbs. Holloran failed to object to the court‟s response, and therefore his objection is forfeited. (People v. Christopher (2006) 137 Cal.App.4th 418, 427.) Moreover, we

Because CALCRIM former No. 400 was generally accurate, we conclude defendants forfeited their claims concerning the “equally guilty” language by failing to request that the trial court modify the instruction. (People v. Loza (2012) 207 Cal.App.4th 332, 349-350 (Loza); People v. Lopez (2011) 198 Cal.App.4th 1106, 1118-1119; People v. Canizalez (2011) 197 Cal.App.4th 832, 849 (Canizalez); People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163 (Samaniego).) Further, the failure to state that defendants could also be guilty of the nontarget offense of simple mayhem based on the natural and probable consequences instruction given here “made the instruction, at most, incomplete in the context of this case, not incorrect.” (Canizalez, supra, 197 Cal.App.4th at p. 849.) Therefore, defendants were required to request modification of the instruction to add simple mayhem as a natural and probable consequence of the target offense. (Ibid.) In light of Kent‟s ineffective assistance of counsel claim and to forestall any such future claim by Strain, we address the merits of defendants‟ contentions on appeal. Strain‟s assertions are erroneously premised on a connection between the “equally guilty” language in the general aiding and abetting instruction, CALCRIM former No. 400, and the modified version of CALCRIM No. 402, which described natural and probable consequences liability. While lawyers and judges understand the natural and probable consequences doctrine to be a form of aiding and abetting liability, the natural and probable consequences instruction did not call that doctrine a form of aiding and abetting and the instruction was not expressly tied to “equally guilty” language in the general aiding and abetting instruction in CALCRIM former No. 400. Indeed, the natural and probable consequences instruction treated that doctrine as a separate theory of liability. The trial court instructed the jury with CALCRIM former No. 400, which at the time stated: “A person may be guilty of a crime in two ways: One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and

great bodily injury. If you find the defendant is guilty of this crime, you must then decide whether he is guilty of attempted murder or aggravated mayhem. [¶] Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. [¶] To prove that the defendant is guilty of attempted murder or aggravated mayhem under the natural and probable consequences theory, the People must prove that: [¶] 1. The defendant is guilty of assault by means of force likely to produce great bodily injury; [¶] 2. During the commission of assault by means of force likely to produce great bodily injury a coparticipant in that assault by means of force likely to produce great bodily injury committed the crime of attempted murder or aggravated mayhem; and [¶] 3. Under all of the circumstances, a reasonable person in the defendant‟s position would have known that the commission of attempted murder or aggravated mayhem was a natural and probable consequence of the commission of the assault by means of force likely to produce great bodily injury. [¶] A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. . . .” (Italics omitted.) We employ an independent standard of review to questions of whether jury instructions correctly state the law and whether instructions effectively direct a finding adverse to a defendant by removing an issue from the jury‟s consideration. (People v. Posey (2004) 32 Cal.4th 193, 218.) Our high court in People v. McCoy (2001) 25 Cal.4th 1111, 1114, held an aider and abettor in a case of direct aiding and abetting could be found guilty of a greater offense than the direct perpetrator. The reasoning in that case led the court in Samaniego to conclude an aider and abettor‟s guilt may be less than the perpetrator‟s, if the aider and abettor has a less culpable mental state. (Samaniego, supra, 172 Cal.App.4th at pp. 1164-

consequences doctrine. (See Loza, supra, 207 Cal.App.4th 332; People v. Nero (2010) 181 Cal.App.4th 504 (Nero); Samaniego, supra, 172 Cal.App.4th 1148.) In each case, the jury was instructed with the aiding and abetting general instruction, CALCRIM former No. 400 or former CALJIC No. 3.00, which once contained the “equally guilty” language, and CALCRIM former No. 401 or former CALJIC No. 3.01, the instructions defining direct aiding and abetting. CALCRIM former No. 400 began, “A person may be guilty of a crime in two ways.” (Italics added.) That instruction then went on to identify the two ways -- by personally committing the crime as a “perpetrator” and by aiding and abetting, and then indicated that both are “equally guilty.” CALCRIM former No. 401 began, “To prove that the defendant is guilty of a crime based on aiding and abetting that crime . . . .” (Italics added.) Thus, the definition of aiding and abetting in that instruction is directly linked to the statement in CALCRIM former No. 400, “A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” (Italics added.) The natural and probable consequences instruction given, on the other hand, does not say that a person who may be culpable for the nontarget offense is an aider and abettor to that offense. Instead, the version of CALCRIM No. 402 used here identifies the natural and probable consequences doctrine as a third theory, separate from direct perpetration and aiding and abetting. As can be seen in the italicized language, ante, the first sentence in the second paragraph begins, “Under the natural and probable consequences theory . . . .” The first sentence in the fourth paragraph begins, “To prove that the defendant is guilty of attempted murder or aggravated mayhem under the natural and probable consequences theory . . . .” Notwithstanding its legal status as a form of aiding and abetting, the natural and probable consequences doctrine was explained to the jurors as a separate theory of legal liability. Consequently, we conclude that it was unlikely the jury read the “equally guilty” language in CALCRIM former No. 400 to apply to the natural and probable consequences instruction.

Moreover, in his closing arguments, the prosecutor did not link the natural and probable consequences theory to aiding and abetting or the “equally guilty” language. Consistent with the instructions, the prosecutor argued natural and probable consequences as an entirely separate theory. He described “three different ways to get” to a guilty verdict. He discussed being an actual perpetrator, aiding and abetting, and natural and probable consequences. As for aiding and abetting, the prosecutor initially explained, “[defendant] has to know of the unlawful purpose of the perpetrator. He has to intend to aid, encourage or facilitate the crime. He has to by act or advice, actually aid, encourage or instigate the crime. Okay. So that‟s aider and abettor. [ ¶] Then there‟s natural and probable consequences. I‟m not going to say anything about that right now because that is significantly more complex than either being a perpetrator or an aider and abettor. I‟ll get to that in just a second.” Later, when the prosecutor discussed the natural and probable consequences theory, he argued that the jury should look at that theory if it determined a defendant “had no idea” the perpetrator intended to commit the target offense. In rebuttal, regarding Kent, the prosecutor told the jury, “But if you find that all he did was an assault, and somebody else intended to kill or intended to disable or disfigure, and he had no idea that Mr. Strain or Mr. Nelson or Mr. Holloran had that intent, he is still guilty if you find that an attempted murder or an intent [sic] or an aggravated mayhem is a natural and probable consequence.” (Italics added.) Thus, the prosecutor in effect argued equal guilt with those who are guilty of the nontarget crime only if the nontarget crime is a natural and probable consequence of the target crime. As for inclusion of simple mayhem in the natural and probable consequences instruction, Strain does not expressly assert that the trial court had a sua sponte duty to include it in the list of nontarget offenses, but his argument that failure to do so misled the jury sounds like a close cousin, especially given his reliance on Woods and Hart. In Woods, this court said, “in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to

Error regarding the “equally guilty” language is measured by the harmless- beyond-a-reasonable-doubt standard of Chapman. (Nero, supra, 181 Cal.App.4th at pp. 518-519; Samaniego, supra, 172 Cal.App.4th at p. 1165.) As to the omission of simple mayhem from the natural and probable consequence instruction, this court has observed, “Error in instructing the jury concerning lesser forms of culpability is reversible unless it can be shown that the jury properly resolved the question under the instructions, as given. [Citation.]” (Hart, supra, 176 Cal.App.4th at p. 673.) The error here was harmless. First, there was ample evidence –- including eyewitness testimony and Strain‟s video recorded stomping demonstration -- that established his guilt as a direct perpetrator of aggravated mayhem. Likewise, evidence we have already reviewed presents compelling evidence that Holloran was, in fact, one of the people who kicked or stomped Dickerson and a direct perpetrator of aggravated mayhem. Second, as we have already observed, we know for sure that the instructions did not mislead the jury. The jurors clearly understood they could find defendants guilty of a lesser offense, because they did so. They found Kent not guilty of aggravated mayhem but guilty of simple mayhem, while finding Holloran and Strain guilty of aggravated mayhem. We thus know the Strain/Holloran/Kent jury was not misled by the instructions. Kent contends the “equally guilty” language misled the jury into finding him guilty of assault by means of force likely to produce GBI in count three, even though the jurors may have accepted his testimony that he was in the parking lot at the time Dickerson was kicked and his attorney‟s closing argument that Kent‟s only misconduct was as accessory after the fact, in helping Nelson, whom he saw kick Dickerson, flee the scene and avoid apprehension. Kent wants reversal of count three, which in his view necessarily requires reversal of the lesser offense in count two, simple mayhem, because mayhem, as the nontarget offense, could not be committed unless he committed the target offense of assault. However, it is inconceivable that the jury properly understood the law

when deciding count two, for which it did not find Kent “equally guilty,” yet was misled when deciding count three. The “equally guilty” language is not an issue, unless the jury first finds that a defendant engages in conduct to make him guilty of some offense. At oral argument, counsel for Kent suggested that offense is accessory after the fact. But the argument that the jury thought Kent was culpable of accessory after the fact and convicted him of assault by means of force likely to produce GBI because of the “equally guilty” language is untenable. As the aiding and abetting instructions made clear, a defendant could be found guilty on an aiding and abetting theory only if, “before or during” the commission of the assault by means of force likely to produce GBI, he intended to aid and abet the perpetrator in committing that crime and his “words or conduct did in fact aid and abet the perpetrator‟s commission of [that] crime.” (See fn. 28, ante.) These elements are predicates to what makes an aider and abettor equally guilty. If the jury believed Kent merely aided after the fact by driving the perpetrators away, the jury could not have found the requisite intent or conduct for liability as an aider and abettor of the assault. Kent offers no theory to explain how the equally guilty language could mislead the jury into ignoring these elements, and we can discern none. As to count two, Kent argues the verdict “suggest[s] that [his] conviction in Count 2 of the lesser included offense of simple mayhem was not based on either direct liability and/or aiding and abetting liability because otherwise the jury would have returned a verdict of aggravated mayhem, as it did for codefendants Holloran and Strain. The verdict of simple mayhem in (count 2, lesser included offense) is consistent with a verdict based on the natural and probable consequences doctrine -- i.e., one based on [Kent‟s] conviction of the target offense in count 3 [assault by means of force likely to produce GBI] with a finding that a coparticipant committed aggravated mayhem (i.e., another offense committed at the same time, which was committed as a natural and probable consequence of the target offense). Accordingly, count 2 should be reversed because under the natural and probable consequences doctrine the jury could not have

instruction[s] in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant‟s guilt beyond a reasonable doubt.” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30 (Paysinger).) The jury received the following standard instructions: CALCRIM No. 362: “If a defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other defendant‟s guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself.” CALCRIM No. 371: “If a defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that a defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] [Same language for creating false evidence and admonition to consider the evidence only against the defendant who engaged in the conduct.]” CALCRIM No. 372: “If a defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that a defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that a defendant fled cannot prove guilt by itself.” The prosecutor argued consciousness of guilt to the jury in the following evidence: Defendants fled after dropping off Holloran at home; Kent yelled at Anderson to “stop snitching”; Holloran lied to the police in the hospital; and during the surreptitiously recorded conversation they talked about jumping bail, Holloran told Strain to say the blood on his pants came from Holloran, and Strain said nothing about falling on Dickerson.

Strain concedes case law defeats his argument that the current instructions‟ language -- “aware of his guilt” -- is more onerous for defendants than the previous language -- “consciousness of guilt.” (People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1158-1159 [etymological analysis by Fifth District concluded consciousness and awareness were synonymous].) Strain suggests that Hernandez-Rios was wrongly decided. He argues that in the context of a criminal prosecution, a person could have a vague generalized consciousness of guilt, akin to a guilty conscience, without having a specific awareness of guilt, whereas the latter term leaves no room for a “not guilty” verdict. We disagree. This court rejected challenges to these instructions in People v. McGowan (2008) 160 Cal.App.4th 1099 (McGowan), and Paysinger, supra, 174 Cal.App.4th 26, though not on the specific ground presented here. In holding that CALCRIM No. 362 was not an improper pinpoint instruction, this court in McGowan said the minor differences in language between the current and former versions of the instruction did not undermine the Supreme Court‟s approval of the instruction. (McGowan, supra, 160 Cal.App.4th at pp. 1103-1104.) In Paysinger, this court held CALCRIM No. 372 does not presume a crime has been committed. (Paysinger, supra, 174 Cal.App.4th at pp. 30-32.) We also reject Strain‟s contention that the instructions “amounted to mandatory presumptions or burden-shifting presumptions that [he] was guilty if his behavior was substantially consistent with what was described in those instructions.” The instructions simply state that the identified behavior “may show” a defendant is aware of his guilt, but at the same time explain that it is up to the jury to decide the meaning and importance of such behavior. Thus, just like the CALJIC predecessors, the instructions “ma[k]e clear to the jury that certain types of deceptive or evasive behavior on a defendant‟s part could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendant‟s guilt, and allowing the jury to determine the weight and significance assigned to such behavior.” (People v. Jackson (1996) 13 Cal.4th 1164,

supra, 373 U.S. at p. 87.) To establish a Brady violation, a defendant must show: (1) The evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” (Strickler v. Greene (1999) 527 U.S. 263, 281-282; People v. Salazar (2005) 35 Cal.4th 1031, 1043 (Salazar).) “Prejudice, in this context, focuses on „the materiality of the evidence to the issue of guilt or innocence.‟ [Citations.]” (Salazar, supra, 35 Cal.4th at p. 1043.) Evidence is material under Brady when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A „reasonable probability‟ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985) 473 U.S. 667, 682 [87 L.Ed.2d 481]; In re Sassounian (1995) 9 Cal.4th 535, 543 (Sassounian).) “It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract.” (Sassounian, supra, 9 Cal.4th at p. 544.) “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish „materiality‟ in the constitutional sense.” (United States v. Agers (1976) 472 U.S. 97, 109-110 [49 L.Ed.2d 342]; People v. Hoyos (2007) 41 Cal.4th 872, 922 (Hoyos); Sassounian, supra, 9 Cal.4th at pp. 544-545.) The defendant has the burden of showing materiality. (Hoyos, supra, 41 Cal.4th at p. 918.) Defendant Kent‟s assertion that the prosecution would have dismissed the charges against him or bargained for a simple assault conviction based on statements Holloran purportedly made to his sister as reported to law enforcement by the sister is nothing more than unrealistic speculation and does not even come close to establishing a reasonable probability that the result would have been different had the statement been disclosed earlier. The contention is totally without merit.

“You impartially compare and consider all the evidence. Okay. It‟s a big-picture look at things because you can dissect anything and say, well, this little piece here isn‟t enough. This piece over here‟s not enough, but when you put it together and form the puzzle, you can tell what the big picture is. . . . [¶] . . . [¶] . . . Gary Larson of the Far Side has a cartoon that‟s applicable. A couple of helicopter pilots are flying over an island where a stranded guy has written, „Health,‟ and the pilot says, „Wait, wait. Cancel that. I guess it says, “Health.” ‟ Okay. Ladies and gentlemen, if you get to, „Health,‟ in this case, then the defendants are guilty. You don‟t have to get all the way to[] „Help.‟ ” Holloran contends this court condemned an identical analogy in People v. Katzenberger (2009) 178 Cal.App.4th 1260. He is mistaken. In Katzenberger, this court found nonprejudicial misconduct in a prosecutor‟s use of an eight-piece puzzle of the Statue of Liberty to argue it was possible to identify the image beyond a reasonable doubt even with two pieces missing. (Id. at pp. 1264-1265, 1268-1269.) This court held the use of an easily recognizable iconic image, along with the suggestion of a quantitative measure of reasonable doubt, conveyed an impression of a lesser standard of proof. (Id. at p. 1268.) Here, in contrast, there was no visual aid, no iconic image, and no suggestion of a quantitative measure. Katzenberger does not help defendants. 3. Articulable Reasons to Doubt Holloran complains that the prosecutor misled jurors to believe “reasonable doubt” requires an ability to articulate reasons for the doubt. The prosecutor argued to the jury: “The terms reasonable doubt define themselves almost. It‟s a doubt that‟s based in reason. You should be back there using your head. Okay. You can‟t go with a gut feeling. You can‟t go on emotion. And so if you have what you think is a reasonable doubt and a juror says, „Well, tell me about it. What is your doubt based on?‟ you should be able to explain it. You should be able to articulate it. You should be able to have a rational discussion about it. And if you can‟t do that, then all I‟d ask you to do is stop and ask yourself, is it a reasonable doubt? If I can‟t

explain it and I can‟t talk to my fellow jurors about it, is it reasonable, or is it something that‟s based on my gut?” Holloran cites authority that it is not necessary for a juror, or a judge in a bench trial, to articulate reasons for reasonable doubt. Here, however, the prosecutor merely suggested that a juror unable to articulate reasons for doubt should reconsider whether the doubt was based on “gut” alone instead of reason. Thus, the cited cases are inapposite. Holloran quotes from People v. Engelman (2002) 28 Cal.4th 436, in which our high court said, “It is not always easy for a juror to articulate the exact basis for disagreement after a complicated trial, nor is it necessary that a juror do so..” (Id. at p. 446.) Engelman held that a former standard instruction given just prior to deliberations, which obligated jurors to report fellow jurors who refused to deliberate or follow the law, was inadvisable, because it created an unnecessary risk of inducing jurors to expose the content of deliberations. (Id. at pp. 439, 446.) In context, the language Holloran quotes is part of the Engelman court‟s observation that a juror does not necessarily commit misconduct in deliberations by disagreeing without articulating the basis for disagreement. Holloran cites U.S. v. Chilingirian (6th Cir. 2002) 280 F.3d 704, 711, as stating that even a judge in a bench trial may have trouble articulating the basis for his doubt, yet find the defendant not guilty. However, that comment was made in the context of holding that inconsistent verdicts, whether by judge or jury, are not subject to reversal merely because of inconsistency. (Ibid.) Thus, the appellate court would not require a judge to make findings explaining the inconsistency for appellate review. Holloran notes a reasonable doubt may be based on a lack of evidence rather than a defect in the evidence (Johnson v. Louisiana (1972) 406 U.S. 356, 360 [32 L.Ed.2d 152]), which would be difficult to articulate. Nevertheless, Holloran fails to cite any authority refuting the prosecutor‟s point that reasonable doubt should not be based on “gut” alone.

the preceding Monday or Tuesday, which may have been a simple exchange of pleasantries, and then saw, but could not hear, Juror No. 10 and the father talking outside the courthouse, shortly after 9:00 a.m. on the preceding Thursday. As to the second occasion, the juror reported that as he was leaving the building after the jury was excused early, he saw the father and Juror No. 10 “engaged in a conversation” in “the patio area out in the front of the courthouse.” The reporting juror went on to say, “[t]hey were standing, garbage can in between them, but -- kind of leaning against the wall, the garbage can between them just talking. [¶] And I looked for a second because now it‟s the second time that I saw them, and about five seconds later they just kind of both turned and walked away their separate ways.” In response to the trial court‟s followup question about the length of the reporting juror‟s observation, he said, “I observed them maybe three to four seconds.” The court questioned Juror No. 10, who said he did not recall exchanging words with any witness or spectator and did not recall what Holloran‟s father looked like. He said he had no recollection of conversing with Mr. Holloran outside of the courthouse on the previous Thursday when the juries had been excused early. He also denied that any spectator tried to converse with him. The court then questioned Holloran‟s father, who said he saw the juror leaving and asked the juror, “what‟s up?” The juror said that one of the attorneys called in sick, and no court today, and he was going to work. The court asked the father, “So you said, What‟s up?” The father modified his statement, and stated that might not have been what he said. He went on to explain that prior to the Thursday morning proceedings, Kent‟s father had come up to him and said there would be no court because counsel for Nelson was ill. “. . . I was going to come up and find out for certain. He said that there was going to be a jury instruction. . . . [¶] And I was finishing my cigarette, and the gentlemen walked out. I don‟t remember how the conversation started, but I asked him, No court today?” And he says, No, one of the attorneys is ill, and he was going to work.

And I said, I thought there was jury instruction, and he says the jury instruction was to be here Monday morning.” This conversation took place, according to the father, “[o]ut front by the ashtrays.” The father also said the juror works at a bakery and eats Doritos at the 3:00 p.m. break. The father knew this because when they were standing in the hallway one day, he said to the juror, “time for a snack, huh,” and the juror said he needed a snack because he works at a bakery and is usually off work by 1:00 p.m. and home asleep by 2:00. The father said he “probably” also spoke to the juror near the elevator but did not remember what was said. The father said he “talk[s] to a lot of people,” and “[i]f it was just in passing, I usually just make one comment and walk[] away from it.” The father said he thought he was only prohibited from talking to jurors “about the trial.” The court responded, “You can‟t be serious. You are not allowed to talk to any juror in any case or any witness. . . . [¶] And I am sure that [counsel for Holloran] told you that.” The father responded, “Can‟t even say „good morning,‟ ” and the court replied, “You may not. You may not.” The court brought Juror No. 10 into the courtroom, showed him Holloran‟s father, and asked the juror if he had spoken with Mr. Holloran outside the courthouse by the trash cans on the patio area about court being cancelled. The juror said “No. When I left I walked across the street and exited.” The juror said he did not recall any conversations with Holloran‟s father at any time during the course of the trial. The juror confirmed he worked at a bakery and got off at 1:00 p.m. and would eat a snack to stay attentive during the trial. But he did not recall sharing this information with Holloran‟s father. He said he might have told other jurors but would not have told anyone else. After a chambers conference with counsel, the court stated that she “and all counsel share a concern about” the father‟s conversations. Consequently, the court questioned the other jurors for both juries, none of whom said they had any contact with witnesses or spectators, except one juror who yelled out his car window,

When the prosecutor brought up the earlier incident when Holloran‟s father was talking in the hallway, the court replied, “I think that was handled informally with [Holloran‟s counsel] going out and talking with Mr. Holloran in the hallway. [¶] Is that correct, [Holloran‟s counsel]? Holloran‟s counsel answered, “That‟s true, your Honor.” Counsel never said he had limited his admonition to speaking about the case to jurors. At the end of the day, the court admonished the jury, “Again, I want to stress to you how absolutely critical it is that you not have any contact or any conversation with anybody that is in any way associated with this trial: No witnesses, no attorneys, spectators. It is very, very important that you rigidly adhere to that admonition. [¶] I told you not to form or express any opinion or talk about this case among yourselves or with anyone else and not to have any contact with anyone even if it‟s unrelated to the case. You simply can‟t do it.” 2. Analysis A criminal defendant has a constitutional right to a public trial, including the presence of friends or relatives. (U.S. Const., 6th Amend., 14th Amend.; Cal. Const., art. I, § 13; Presley v. Georgia (2010) 558 U.S. 209, 210, 214-215 [175 L.Ed.2d 675] (Presley) [reversed judgment where trial court excluded the public from the courtroom during voir dire due to space limitations and concern that prospective jurors might overhear observers‟ remarks].) However, the Sixth Amendment‟s presumption of openness can be rebutted by a showing that exclusion of the public was necessary and narrowly tailored to protect some “higher value.” (People v. Bui (2010) 183 Cal.App.4th 675, 680-681 (Bui).) “[B]oth the defendant‟s and the public‟s right may be subjected to reasonable restrictions that are necessary or convenient to the orderly procedure of trial . . . .” (People v. Esquibel (2008) 166 Cal.App.4th 539, 552.) The right of the public to attend the trial may be curtailed under special circumstances without infringement on the constitutional right,

but it cannot be denied altogether, and it cannot be restricted except when necessary. (People v. Byrnes (1948) 84 Cal.App.2d 72, 73.) “The exclusion of any nondisruptive spectator from a criminal trial should never be undertaken without a full evaluation of the necessity for the exclusion and the alternatives that might be taken. This evaluation should be reflected in the record of the proceedings.” (Esquibel, supra, 166 Cal.App.4th at p. 556, italics added.) In Esquibel, the trial court excluded two friends of the defendant during the testimony of a single witness who was a minor because, although there was no indication of intimidation or harassment, the child‟s mother was concerned the spectators might be gang members and would recognize her child in the neighborhood. (Esquibel, supra, 166 Cal.App.4th at p. 554.) The appellate court held, “. . . the partial closure of a trial by the temporary exclusion of select supporters of the accused does not create an automatic violation of the constitutional right to a public trial.” (Ibid.) On the facts, there was no violation. The exclusion was temporary; the defendant did not need the spectators for support; and family members remained in the courtroom. The court reasoned that the purposes of the public trial right would not be served by finding a constitutional violation. (Ibid.) Here, the exclusion was for the rest of the trial and excluded a defendant‟s father but, unlike Esquibel, here the excluded spectator was disruptive, having twice forced the trial court to interrupt the trial in order to question jurors about his comments. Holloran argues the trial court failed to consider lesser alternatives. However, the court gave the father a second chance after he inappropriately discussed the case over the phone within earshot of a juror. Yet the father persisted in inappropriate contact with jurors. Although he claimed he thought the prohibition against talking to jurors applied only to discussing the case, neither the father nor Holloran‟s counsel disputed the court‟s assertion that it was “sure” Holloran‟s counsel had informed the father that he was not allowed to talk to any juror. Indeed, Holloran‟s counsel expressly confirmed that he had

talked to the father, and he did not say he limited the admonition to not speaking about the case. And even after the judge reiterated the father could not talk to any juror or witness, the father persisted by asking if that included saying “good morning.” Ignoring the fact that counsel for Holloran never said he limited the admonition he gave the father to speaking about the case, appellate counsel argued at oral argument that trial counsel would merely have told Holloran‟s father what the court told the jury, which appellate counsel contends, was limited to an admonition not to talk to anyone about the case. Contrary to this assertion, in the instructions the court gave to the juries at the beginning of the trial, the trial court did give the standard admonition: “During the trial, do not speak to any party, witness or lawyer involved in the trial.” (CALCRIM former No. 101, italics added.) The court did not limit this prohibition to speaking about the case. Thus, appellate counsel‟s theory that trial counsel would have told Holloran‟s father what the court told the jury does not support the argument that the father was only told that he could not talk to jurors about the case. Holloran cites People v. Chatman (2006) 38 Cal.4th 344, which involved a defendant‟s claim of spectator misconduct. In Chatman, the defendant moved for a mistrial because the victim‟s mother had made several outbursts. The trial court denied the motion. (Id. at pp. 366-368.) The Supreme Court held the trial court did not abuse its discretion in denying the mistrial motion, and the defendant was not prejudiced. (Chatman, supra, 38 Cal.4th at pp. 368-369.) Holloran quotes from Chatman: “Surely, we would not say that the mother of either the victim or the accused should be excluded from the courtroom simply because she might act beyond the strictures of accepted legal deportment.” Holloran reads too much into this quote, arguing “Just as Chatman‟s judge could not exclude the victim‟s mother,” so too the judge here could not properly exclude Holloran‟s father for acting beyond the strictures of acceptable legal deportment. The “legal deportment” in Chatman did not involve talking to jurors outside of the courtroom. Moreover, our high court in Chatman did not hold the mother could not be excluded.

It merely held that the trial court did not abuse its discretion in denying defendant‟s mistrial motion grounded on a claim of prejudice resulting from the mother‟s decorum inside the courtroom during trial. (Id. at pp. 369-370.) Holloran contends Bui supports his contention that exclusion of his father was unconstitutional. We disagree. Bui found no constitutional violation where a bailiff excluded three spectators, including two of defendant‟s family members, from the courtroom during voir dire, and the trial court allowed them to return when it learned of the matter 40 minutes later. (Bui, supra, 183 Cal.App.4th at pp. 679, 686.) The court in Bui held that Presley did not obviate consideration of the “de minimis” nature of a courtroom closure. (Bui, supra, 183 Cal.App.4th at p. 687.) Holloran extrapolates that, because his father‟s exclusion was not “de minimis,” it violates the Sixth Amendment to the United States Constitution. Bui does not address a trial court‟s responsibility for dealing with disruptive spectators. At oral argument, counsel for Holloran insisted that the trial court found the father‟s description of his encounters with Nelson Juror No. 10 to be credible. From this, and cases he cites where courts held juror conversations to be harmless, he argues that the father‟s contact with the juror was harmless and he should not have been excluded for such conduct. Our review of the record reflects no credibility finding regarding the father. Indeed, the father‟s description of the second encounter with Nelson Juror No. 10 is inconsistent with the observations of the reporting juror. As noted, the reporting juror saw the two of them conversing while “leaning up against the wall” with a “garbage can between them.” In contrast, the father‟s rendition implied a conversation in passing as the juror was “leaving the building.” Although the trial court made no express finding regarding the credibility of Holloran‟s father, given this discrepancy, the trial court would have been justified in doubting his veracity. In any event, we need not discuss the cases Holloran cites, in which the courts concluded

subd. (f); 1202.46 [when the economic losses of a victim cannot be ascertained at the time of sentencing, the court shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined]; People v. Bufford (2007) 146 Cal.App.4th 966, 970 [court retained jurisdiction to hold restitution hearing and impose restitution even after defendant served her state prison sentence]; People v. Harvest (2000) 84 Cal.App.4th 641, 650 [victim restitution does not constitute punishment for double jeopardy purposes and there was no constitutional impediment to a restitution order made at resentencing after appeal].) In the event the parties forgo a restitution hearing and accept restitution as originally ordered, the court is directed to correct the $100,000 discrepancy in Holloran‟s and Kent‟s abstracts, both of which show the amount of restitution for Dickerson as $1,247,636.81 instead of the $1,347,636.81 orally ordered by the court. c. Joint and several restitution The People agree it is appropriate to amend the abstracts of judgment to show joint and several liability as to Strain, Holloran and Kent for the restitution to Dickerson. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535.) We agree. Furthermore, we point out that cross-referencing the probation reports instead of setting forth a statement of joint and several liability in the abstracts is inappropriate. A probation report becomes confidential 60 days after sentencing and is not readily accessible to the public (§ 1203.05), while an abstract of judgment is a public document. Moreover, apparently none of the parties noticed the cross-references to orders in the probation reports, and we are concerned the California Department of Corrections and Rehabilitation might overlook those cross-references as well. We are also concerned that the probation reports might not be readily available to the California Department of Corrections and Rehabilitation personnel monitoring the payment of restitution in prison. Thus, joint and several liability for victim restitution to Dickerson must be set forth in the abstracts regardless of whether the parties actually go forward with a

individuals‟ gang affiliation, including East Side Piru, Ranchos and Norteño. [¶] The circumstances being what they are in this case, I firmly believe that when an individual‟s involved in a fight or confrontation with somebody else and they yell a gang-related term, they are identifying themselves -- or themself [sic] as a member of that gang, and other individuals who join in upon hearing that are pretty much fighting for that cause. They want to represent that gang as well. They are not fighting due to any inherent rivalry or conflict with the victim themselves. [T]he assault is taking place in the name of that gang; in this case, in the name of East Side Piru, in the name of Vario East Side Norteños.” [¶] There‟s nothing in the reports I‟ve read to suggest that there‟s any other primary motive or reason for the attack that has anything to do with a previous disagreement, and the fact that multiple individuals assault another individual who is not a gang member and not an inherent rival seems to me to be very indicative and characteristic of many gang-related assaults that I‟ve had occasion to either investigate or read about in reports.” No objection was made to how this opinion was expressed. On cross-examination by counsel for Holloran and Nelson, Ramos testified he had no information about what witnesses had said during the trial or whether what they testified to was different from what they were reported to have said in the investigative reports. Later, on redirect examination by the prosecutor, the following took place: “[PROSECUTOR]: Let me give you this hypothetical: A number of guys are in a park in the afternoon hours, and they‟re walking around the park, and they are drinking, and they‟re confronting numerous groups of people. [¶] They confront one group with women and children and punch the only man who is involved. They confront another group, a couple who‟s walking along the riverbank by asking, “Where are you from?” saying, “This is the Piru,” chasing them off, following them through the park, and when people come to the aid of the people that are being chased and say, „We‟re calling the

“[COUNSEL FOR STRAIN]: Okay. Get off to the river. Somebody‟s there. People are spread out now. They‟re not in a small group. As a matter of fact, some are down at the river. Some are up on the levee, roughly 40, 50 feet away. [¶] One person says something about -- one person says one word about a gang. He says the word, “Piru.” You have no evidence of who hears that. And ultimately a couple of people take off chasing another guy. In that chase there are no gang words said. There‟s no gang hand signs thrown. There‟s no gang threats made. There‟s no territorial statements made. [¶] Does that second incident where the chasing takes place -- would you say that‟s gang related? “[RAMOS]: Not necessarily, no, sir. Notably, in the second hypothetical, counsel omitted facts supported by the evidence, including the question, “Where are you from?” He also changed the reference to Piru from the prosecutor‟s hypothetical that somebody said, “This is the Piru” to somebody said “the word „Piru.‟ ” Actually, Williams testified that after Thompson responded to the question about where he was from by saying he was from San Francisco, one of the group hunched his shoulders up and forward and said he was from “Piru.” At trial, she initially identified that person as the mixed-race person with brownish-green eyes, who was later identified as Nelson. She then testified that the person who said he was from “Piru” may have been Holloran. 2. Analysis In addressing challenges to the sufficiency of the evidence supporting a gang enhancement, “we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‟s findings,

reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] „A reviewing court neither reweighs evidence nor reevaluates a witness‟s credibility.‟ [Citation.]” (People v. Albillar (2010) 51 Cal.4th 47, 60 (Albillar).) Nelson points out that the Strain/Holloran/Kent jury found the gang enhancement not true as to those defendants. That Nelson‟s jury found the gang allegation to be true, while the other defendants‟ jury found the gang allegation not true, does not mean the evidence was insufficient. When there are dual juries, “[m]any reasons may explain apparently inconsistent verdicts: lenience, compromise, differing evidence as to different defendants, or, possibly, that two juries simply viewed similar evidence differently. If substantial evidence supports a jury verdict as to one defendant, that verdict may stand despite an apparently inconsistent verdict as to another defendant.” (People v. Palmer (2001) 24 Cal.4th 856, 858.) Nelson argues the only evidence supporting the gang enhancement against him is that he is a Norteño gang member and the expert‟s opinion. He cites authority that mere membership is not enough. However, there was more evidence from which Nelson‟s jury could infer the gang benefit and/or association elements of the gang enhancement, including: Dickerson and Dobbs unwittingly “disrespected” defendants by saying they were calling 911 and everyone should go their separate ways; Tweaker disrespected the group by pulling a knife on Kent and threatening to kill him; someone in Nelson‟s group called out the gang name during the attack on the victims, as well as using the gang name earlier; shortly after and/or during the time these things took place, Nelson injected himself in the incident involving Dobbs and Dickerson by attacking both of them; and both Nelson and Holloran were gang members who actively assisted each other during the incident and could rely on each other‟s cooperation. As for announcing the gang‟s name, despite Williams‟s earlier statement to the sheriff‟s deputies, the Nelson jury could have credited her trial testimony that the person who said he was from Piru during the

confrontation with her and Thompson was the mixed-race person with brownish-green eyes, which the evidence showed is Nelson. And even if the jury believed it was Holloran, not Nelson, who made that statement, the evidence shows that Nelson was nonetheless present and heard the gang‟s name invoked. As for Holloran and Nelson relying upon one another, we note here that Nelson told Holloran‟s sister he considered Holloran to be family and he (Nelson) would “kill” for Holloran. The expert testified about the purposes of calling out the gang name during a physical assault. “[I]t lets the individual, or individuals, who you‟re in a confrontation with -- it lets them know that they‟re not just fighting you. They‟re fighting that particular gang or that particular group. [¶] And it‟s also -- if other members of that gang are present, it‟s in a sense -- it‟s a rallying cry. It‟s a call to arms, and that‟s a way of saying that this is now a gang thing, and if you want to be considered part of that, if you want to save face, if you ever want to consider yourself a part of that group in the future, . . . you need to step up and respond to it. . . .” The expert also testified how a gang member‟s commission of a crime benefits the gang. “[P]art of a criminal street gang‟s ability to thrive and exist is predicated upon their ongoing pattern of criminal activity and their ability to instill fear and intimidation among the community . . . . If a gang is not able to do that, you know, they have the inability to really exist at the level that they need to.” “Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was „committed for the benefit of‟ ” the gang. (Albillar, supra, 51 Cal.4th at p. 63.) And “if substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (Id. at p. 68.)

We further note, in addition to the “for the benefit of” theory of the gang enhancement, Nelson‟s jury could reasonably have found Nelson committed the charged crimes “in association with” at least one other Norteño, namely Holloran, notwithstanding the enhancement findings rendered by the Strain/Holloran/Kent jury. The expert opined that Holloran is a Norteño gang member, and the evidence was sufficient to establish that the two came together as gang members to attack Dickerson and Dobbs. (Albillar, supra, 51 Cal.4th at pp. 60-62.) In his briefing, Nelson criticizes the expert for opining on an ultimate issue in the case -- whether the crimes were committed to benefit the Norteños. Nelson cites People v. Ochoa (2009) 179 Cal.App.4th 650, in which the court said, “Here, the prosecutor did not pose any hypothetical to the gang expert, but essentially asked him the impermissible question of whether the particular crimes were committed to benefit defendant‟s gang.” (Id. at p. 664.) On appeal, Nelson does not assert this as an assignment of evidentiary error. Such a claim would be forfeited because of his failure to object in the trial court. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208 (Zepeda) [defendant‟s objection to entire expert testimony was insufficient to preserve objection to expert opinion on the issue of the defendant‟s intent to benefit the gang].) Rather, Nelson expects us to disregard the expert‟s testimony as improper speculation. People v. Ochoa does not help Nelson on this point. The court reasoned that, given the lack of evidentiary support from which to draw inferences, the expert‟s opinion that the defendant‟s carjacking (which he committed by himself) benefited the gang was “based solely on speculation, not evidence.” (People v. Ochoa, supra, 179 Cal.App.4th at p. 663.) The court further reasoned that evidence a gang member committed a crime alone combined with an expert witness's unsubstantiated opinion that the crime was committed for the benefit of the gang, was insufficient to find gang enhancement allegations true. (Id. at p. 665.)

In contrast, given the evidence in this case, the expert‟s opinion here can hardly be called “unsubstantiated” or “speculation” like the flawed opinion in People v. Ochoa. At oral argument, citing People v. Vang (2011) 52 Cal.4th 1038 (Vang), counsel for Nelson argued that the gang expert‟s opinion cannot be based on police reports and must be based on a hypothetical question including facts from the trial evidence. Counsel further argued that the expert opined that having viewed the police reports, he could not think of any other reason why the assault took place other than gang activity. Counsel asserts this is exactly what the court in Vang said is an inappropriate opinion. As the testimony we have noted demonstrates, the expert‟s opinion was not based solely on a conclusion there was no other reason for the assaults other than a gang-related reason. In any event, to the extent that the contention is that the expert‟s opinion was improper, that evidentiary contention is forfeited because there was no objection in the trial court on that ground. (Zepeda, supra, 87 Cal.App.4th at p. 1208.) To the extent that counsel suggests the expert‟s opinion does not provide substantial evidence because it was not expressed in response to a hypothetical question, we disagree. First, we note that the court in Vang did not hold that all gang expert opinion testimony about gang benefit and/or association must be based on a hypothetical question. The court held that when hypothetical questions are asked, such questions must be based on the trial evidence and “[t]he questioner is not required to disguise the fact that the questions are based on that evidence.” (Vang, supra, 52 Cal.4th at p. 1041.) The court did not consider whether an expert could express an opinion on gang benefit or gang association based on reports, when the expert references facts from the reports that are supported by evidence in the case, which is what happened here. Cases are not authority for propositions not therein decided (People v. Barragan (2004) 32 Cal.4th 236, 243), and we decline to expand Vang beyond the parameters intended by our high court. Second, the expert here was asked hypothetical questions by the prosecution on redirect

P. v. Strain CA4

JOSEPH GORDON HOLLORAN,

ROBERT ANTHONY NELSON,

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MURRAY , J.

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