People v. Hubbard CA5 (2025) · DecisionDepot

People v. Hubbard CA5

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California Court of Appeal Jul 24, 2025 No. F086200Unpublished

Filed 7/23/25 P. v. Hubbard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F086200 Plaintiff and Respondent, (Super. Ct. No. BF188483E) v.

JERRELL HUBBARD, OPINION Defendant and Appellant.

THE PEOPLE, F086346 Plaintiff and Respondent,

v. (Super. Ct. No. BF188483A)

MICHAEL WEBBER,

Defendant and Appellant. Kern County

THE PEOPLE, F086477 Plaintiff and Respondent, (Super. Ct. No. BF188483C) v.

DAVEON RAYNELL DAVIS, Kern County Defendant and Appellant.

THE PEOPLE, F086573 Plaintiff and Respondent, (Super. Ct. No. BF188483B) v.

HUEY CONERLY, JR., Kern County Defendant and Appellant.

APPEAL from judgments of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge. Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant Jerrell Hubbard. Michael C. Sampson, under appointment by the Court of Appeal, for Defendant and Appellant Michael Webber. Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant Daveon Davis. Spolin Dukes, Aaron Spolin and Caitlin Dukes, for Defendant and Appellant Huey Conerly, Jr. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- On December 19, 2021, defendants Jerrell Hubbard, Michael Webber, Daveon Davis, and Huey Conerly Jr.1 – all active members of the West Side Crips (WSC) gang –

1 Hubbard, Webber, Davis, and Conerly each filed separate appeals with this court. On March 13, 2025, on this court’s own motion, we consolidated case numbers F086200 (Hubbard); F086346 (Webber); F086477 (Davis); and F086573 (Conerly) under

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members” in Bakersfield, and it has numerous subsets. The WSC’s primary activities involve “burglaries, illegally possessing firearms, negligent discharge of firearms, assaults with deadly weapons specifically semiautomatic firearms, they’re involved in narcotic sales, they’re involved in possession of stolen property, involved in attempted murder, and murder.” Further, “[t]he traditional boundaries for the [WSC] are California Avenue to the north, Union Avenue to the east, Brundage Lane to the south, and Highway 99 to the west.” “The gang uses a few signs or symbols to identify themselves with” – specifically, “the Washington Nationals logo to represent West . . . the Minnesota Twins logo to represent one of their subsets which is Carnation Track . . . [and] the New York Yankees logo to show respect for a deceased member of the [WSC] who was murdered by an East Side Crip Saddam Ali.” Officer Medrano further testified that “fear plays a big part in a gang [and] [f]or a gang to be successful and commit crimes, they must instill fear in a community, they must instill fear in their own gang members, and they must instill fear in rival gang members.” The WSC “achieve these goals by committing all these different crimes such as illegal possession of firearms, flashing firearms on social media, showing members of the community that they’re not afraid of law enforcement . . . [and] [t]hey also do it to instill this fear into the community that hey, if you retaliate, if you talk to law enforcement, you’re apt to be – to face consequences.” Several Bakersfield police officers testified about the underlying facts and convictions for five predicate offenses committed by various WSC gang members. We discuss each of the five predicate offenses in detail below. A. Predicate Offenses 1. Offense #1 On May 11, 2019, BPD Detective McNabb stopped a Dodge Charger with four occupants. The driver was identified as Malik Newell; the front passenger was identified as Webber; the rear driver’s side passenger was identified as Jacquis Howard; and the

1. Hubbard’s “Street” Checks As to Hubbard, on June 2, 2018, officers searched a home and spoke with Hubbard, who was 16 or 17 years old at the time. Officers spoke with Hubbard who stated he was a member of a “rapping crew” comprised of 10-12 members called Yancomb. Hubbard admitted he had a moniker of “Lil Bino” and became a Yancomb member “when he was 14 or 15 years old.” He further told officers “some of the members do disrespect the East Side Crips” and they used hand signs to “represent the letter Y, and when the hand is flipped upside down it forms the letter M.” Further, a few months later, officers observed Hubbard “throwing up the West Side Crip hand sign, which is, if you lift your hand up, you cross the middle and the ring finger.” On February 6, 2019, BPD Officer C. Hernandez searched a 2010 silver Mustang with two occupants – the driver, Enrique Sanchez, and the passenger Hubbard. Officers found “a black sweatshirt that said Yancomb Lil Sosa.”27 On August 29, 2020, officers stopped a black BMW that had no license plates. Officers contacted the two occupants – the driver, Hubbard, and the passenger, Hunter. Officers searched the vehicle and located “a red Washington Nationals hat in the back seat, and there was a blue New York Yankees hat in the trunk.” On December 11, 2020, officers stopped a blue Nissan Altima for an illegal window tint. Officers contacted the six occupants: the driver, Serina Aguirre; the front seat passenger, Hubbard; the rear driver’s seat passenger, Letwan Banks; the rear middle seat passenger, Shatalia Dixon; and the rear passenger’s side passengers, Ceiane Sutton and her child, N.W. Officers searched the vehicle and “located a [loaded] Glock 43 underneath the driver’s side rear passenger’s seat, where Mr. Banks was seated, which had one round in the chamber and five rounds in the magazine.” Further, officers located “a Glock-style magazine with approximately six live 9mm Luger ammunition.” Hubbard

evidence provided the jury with reasonable, credible, and solid evidence from which a jury could conclude Hubbard was present and participated in the Castleford shooting. Nonetheless, Hubbard argues: (1) “[t]he prosecution presented no direct evidence placing [him] at the scene of the crime [¶] [and] [t]he prosecution’s case relied on circumstantial evidence from events that occurred approximately three hours after the shooting[;]” (2) “[n]o firearms or contraband were found on [his] person during the search incident to arrest [¶] [and] [t]he DNA evidence linking [him] to one of the recovered firearms (the Glock handgun) is weak and inconclusive[;]” (3) “[t]he cell phone location data presented by the prosecution is similarly imprecise and inconclusive[;]” and (4) “[t]he ballistics evidence presented does not directly implicate [him].” First, “[t]he fact that all the evidence was circumstantial does not lessen its weight, for circumstantial evidence is as adequate to convict as direct evidence.” (People v. Goldstein (1956) 139 Cal.App.2d 146, 155 (Goldstein); see also CALCRIM No. 223 [“Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other.”].) Therefore, although the surveillance footage, DNA evidence, and cell phone evidence all qualified as circumstantial evidence, this evidence was as “adequate to convict as direct evidence” (Goldstein, at p. 155), and provided substantial evidence to find Hubbard guilty of counts 1 through 6. Second, as to Hubbard’s issues surrounding the accuracy of the DNA evidence, cell phone data, and ballistics evidence, “we do not reweigh the evidence . . . and the weight to be accorded to the evidence [because these] are matters exclusively within the province of the trier of fact.” (People v. Stewart (2000) 77 Cal.App.4th 785, 790 (Stewart).) Therefore, “even if [this] evidence is also reasonably susceptible of an interpretation that suggests innocence” (People v. Little (2004) 115 Cal.App.4th 766, 771), “we are bound to sustain

seen exiting the Nissan. Further, law enforcement seized a cell phone associated with Webber’s address from the Nissan’s backseat in the area where Webber had been sitting prior to his arrest. This cell phone, along with Hubbard, Conerly, and Davis’s cell phones, transmitted from the same cell tower near the site of the Castleford address at the time the shooting occurred. Finally, Webber was located in the middle seat of the Nissan with his three co-participants immediately before his arrest. This is important because law enforcement observed two firearms being discarded from the same vehicle where Webber was located and subsequently arrested. Overall, this evidence provided the jury with reasonable, credible, and solid evidence from which the jury could conclude Webber was present and participated in the Castleford shooting. Nonetheless, Webber attempts to analogize the facts of this case to In re David K. (1978) 79 Cal.App.3d 992 (David K.) and People v. Sanford (2017) 11 Cal.App.5th 84 (Sanford). However, both David K. and Sanford are distinguishable. In David K., the victim was seated in the driver’s seat of his car in San Francisco when he observed three minors. (David K., at p. 997.) Two minors approached on the driver’s side and one on the passenger’s side, and one of the minors, George, put a knife near the victim’s neck and forced him to surrender his car and money. (Ibid.) George entered the car and drove away. (Ibid.) The victim observed the heads of two other individuals in his car and he indicated “the individuals whom he saw at the time of the robbery were of Latin descent and that all three of the individuals were 25 to 26 years of age.” (Ibid.) In contrast, David was a 17-year-old Caucasian. (Id. at p. 998.) Three hours after the robbery, police observed the victim’s car in Yuba City – George and Salvador who were of Latin descent were in the front seat and David was in the rear seat. (Id. at p. 997.) David had no money on his person, but did have the victim’s wallet between his legs. (Ibid.) The appellate court reversed an adjudication order against David because the juvenile court’s findings were not supported by substantial evidence. (David K., supra, 79 Cal.App.3d at p. 1001.) Specifically, the court stated the following:

“The only evidence to connect the minor David with the robbery of [the victim] is the fact that three hours after the robbery, in a city some distance from the site of the robbery, David was found in the company of the identified robber in the stolen automobile with personal property of the victim being found in open view in the automobile. No cash proceeds of the robbery were found on David’s person and the empty wallet, purse, and binoculars belonging to [the victim’s wife] were in the back seat where David was seated. There is no evidence, however, that he was exercising any dominion or control over these articles. The situs of the articles as being in the back seat of the automobile where David was seated does not tend to establish that David was exercising any control over these articles. [¶] To draw an inference from these facts that David was one of the three persons at the site of the robbery three hours earlier in another city would amount to pure speculation. It is to be noted that [the victim] identified only the minor George as the actual perpetrator and gave a description to the police that all three persons involved were of Latin descent and were young adults. By no stretch of the imagination did appellant David, a Caucasian, fit into any of the categories.” (David K., supra, 79 Cal.App.3d at p. 1000.) Further, in Sanford, six men robbed a jewelry store and were dressed in dark clothing, wearing hoodies, bandanas, and masks. (Sanford, supra, 11 Cal.App.5th at p. 86.) Eyewitnesses saw the men depart in two cars, including a black Dodge Magnum, and witnesses provided descriptions and the license plate number of the vehicle. (Id. at pp. 86-88.) Approximately 20 minutes after the robbery, law enforcement pulled over the black Magnum. (Id. at pp. 89-90.) There were three occupants inside the vehicle, all African-American males – two adults and the 16-year-old defendant, who was sitting in the backseat wearing dark jeans with gray shoes. (Ibid.) Witnesses identified certain items of clothing worn by the robbers but did not recognize any of the three people and there were no weapons, bandanas, masks, or jewelry in the car. (Id. at pp. 90-91.) There was no physical evidence that tied the defendant to the jewelry store, DNA recovered from the store did not belong to him, and none of the 17 fingerprints collected from the Magnum were his. (Id. at pp. 91-92.) The appellate court held that insufficient evidence supported the defendant’s robbery conviction. (Id. at pp. 92, 95.) Specifically, the court stated the following:

“Almost no evidence was presented to establish that [the defendant] was there. To begin with, no physical evidence tied [the defendant] to the jewelry store. The DNA recovered from the store was not his. The shards of glass in the Magnum, while perhaps showing that someone in the car had been inside the store, were not found near [the defendant] or any of his belongings. No jewelry, guns, hammers, masks, or bandannas were found in the Magnum, much less in [the defendant’s] possession, and [the co- defendant] claimed ownership of the dark hooded sweat shirt with gloves in the pocket, the only items of clothing found in the car that conceivably matched the witnesses’ descriptions of what the robbers were wearing. No evidence was presented to show that [the defendant] was wearing either of the more distinctive clothing items identified by witnesses, the red sneakers or the belt. Nor was there any evidence of flight or other conduct by [the defendant] suggesting guilt. [¶] The only two pieces of evidence indicating that [the defendant] might have been one of the men at the robbery scene were the fact that he was in the Magnum when it was pulled over and the testimony of the witnesses that the participants in the robbery at the jewelry store were African-American men wearing dark-colored jeans and shoes.” (Sanford, supra, 11 Cal.App.5th at p. 92.) This case is distinguishable from both David K. and Sanford. Both courts in David K. and Sanford reversed the jury’s findings because there was little to no evidence connecting the defendants to the robberies. (David K., supra, 79 Cal.App.3d at p. 1000; Sanford, supra, 11 Cal.App.5th at p. 92.) However, unlike the facts present in David K. and Sanford, multiple pieces of evidence connected Webber to the shooting. In this case, Webber’s clothing matched the clothing worn by the individual seen in the surveillance video leaving the Nissan; his cell phone transmitted from the same cell tower as the other three co-defendants near the Castleford shooting scene and at the same time when the shooting occurred; and he was found with the three co-defendants in the Nissan immediately after law enforcement observed two firearms involved in the shooting being discarded from the vehicle where Webber was located. Accordingly, there exists “reasonable, credible, and of solid value – from which a reasonable trier of fact could have the found” Webber was involved in the Castleford shooting. (Cole, supra, 33 Cal.4th at p. 1212.)

2. Substantial Evidence Supports the Jury’s Finding Webber Aided and Abetted in the Shooting and that he Participated in the Conspiracy to Commit the Shooting. Second, in the alternative, Webber argues that “[a]ssuming . . . the evidence was sufficient to place [him] at the scene of the shooting, the evidence was still insufficient to prove that he aided and abetted the shooting.” Specifically, he argues he “was not convicted of any of the firearm allegations and therefore the evidence was necessarily insufficient to prove that he was one of the shooters, or indeed that he even possessed a firearm.” Although the jury acquitted Webber of count 16 (Health & Saf. Code, § 11370.1, subd. (a)) and was unable to reach a verdict as to the premeditated attempted murder charges (§§ 187, subd. (a), 664, counts 1 & 3), firearm possession charges (§ 25850, subd. (c)(3), count 7; § 29800, subd. (a), count 10)) and the firearm enhancements, this does not equate to insufficient evidence to support his convictions of assault with a semiautomatic firearm (§ 245, subd. (b), counts 2 & 4) and discharging a firearm at an inhabited dwelling (§ 246, counts 5 & 6). It appears the jury was unable to find beyond a reasonable doubt that Webber was a shooter; however, it did find beyond a reasonable doubt that Webber either aided and abetted the shooting or participated in an uncharged conspiracy. Therefore, when reviewing the evidence in the light most favorable to the judgment, we conclude substantial evidence exists to support Webber’s convictions for counts 2, 4, 5, and 6 under the theories of direct aiding and abetting and conspiracy. a. Webber Aided and Abetted the Shooting “A person who aids and abets the commission of a crime is culpable as a principal in that crime.” (People v. Gentile (2020) 10 Cal.5th 830, 843 (Gentile), abrogated on another ground as stated in People v. Oyler (2025) 17 Cal.5th 756, 836-837; § 31.) “Aiding and abetting is not a separate offense but a form of derivative liability for the underlying crime.” (Gentile, at p. 843.) “First, under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice

aids the commission of that offense with ‘knowledge of the direct perpetrator’s unlawful intent and [with] an intent to assist in achieving those unlawful ends.’ ” (Ibid., quoting People v. Perez (2005) 35 Cal.4th 1219, 1225.) “Second, under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense he or she directly aided and abetted (i.e., the target offense), but also of any other offense committed by the direct perpetrator that was the ‘natural and probable consequence’ of the crime the accomplice aided and abetted (i.e., the nontarget offense).” (Gentile, supra, 10 Cal.5th at p. 843.) “A nontarget offense is the natural and probable consequence of a target offense ‘if, judged objectively, the [nontarget] offense was reasonably foreseeable.’ [(People v. Chiu (2014) 59 Cal.4th, 155, 161 (Chiu).)] The accomplice need not actually foresee the nontarget offense. ‘Rather, liability “ ‘is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.’ ” ’ ” (Gentile, at pp. 843-844, quoting Chiu at p. 162.) “ ‘ “Whether someone is an accomplice is ordinarily a question of fact for the jury” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1222), and when an appellate court is tasked with reviewing a question of fact, it evaluates only for substantial evidence. (People v. Waidla (2000) 22 Cal.4th 690, 730 [A reviewing court “scrutinizes for substantial evidence the resolution of a pure question of fact” and “the resolution of a mixed question of law and fact that is predominantly factual”].) “ ‘Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ ” (People v. Campbell (1994) 25 Cal.App.4th 402, 409 (Campbell); quoting In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) Here, as discussed in section (C)(1) ante, the surveillance video, cell tower data, and subsequent police contact provided evidence that Webber, Hubbard, Conerly, and Davis were all present at the Castleford shooting scene. Further, all four co-participants

(Homick, supra, 55 Cal.4th at p. 870, italics omitted.) As a result, “it is not necessary for the prosecution to prove the alleged conspirators made an express or formal agreement or that they ever met.” (People v. Austin (1994) 23 Cal.App.4th 1596, 1606, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 861.) “[T]he agreement may be inferred from the conduct of the defendants mutually carrying out a common purpose in violation of a penal statute[.]” (People v. Lipinski (1976) 65 Cal.App.3d 566, 575, italics omitted.) “[A] conspirator does not have to participate in the crime conspired.” (People v. Malotte (1956) 46 Cal.2d 59, 65.) “Each party to a conspiracy is criminally responsible for all acts done in furtherance of the conspiratorial design. [Citations.] In legal contemplation, ‘the act of one is the act of all.’ [Citation.] In a concerted criminal venture, each party is equally culpable and should suffer the same consequences.” (People v. Nance (1960) 181 Cal.App.2d 147, 150-151.) The prosecution must establish that the defendant “had the specific intent both to agree to the conspiracy and to commit the object offense.” (Ware, supra, 14 Cal.5th at p. 164.) To establish the requisite specific intent, the prosecution must show the defendant “intended to play some part in achieving the conspirator’s unlawful ends. Put differently, ‘[t]here must be something more than “[m]ere knowledge, approval or of acquiescence in the object or the purpose of the conspiracy.” ’ ” (Id. at p. 166.) Here, when reviewing the evidence in the light most favorable to the judgment, substantial evidence exists to support Webber’s convictions, as to counts 2, 4, 5, and 6, based on his participation in an uncharged conspiracy to commit the Castleford shooting with Hubbard, Conerly, and Davis. The evidence established the Castleford shooting was coordinated and planned rather than a random attack. At approximately 8:00 p.m., Webber and the three co-defendants drove to the Castleford address in a blue Nissan Rogue and the co-defendants fired at least 70 rounds towards Apartment 2. Prior to the shooting, Webber and the three co-defendants had spent the day together. Thereafter,

Webber, Hubbard, Conerly, and Davis got back in the Nissan and fled the scene. Accordingly, Webber’s conduct in committing the above referenced overt acts represents substantial evidence to establish he had formed an agreement with Hubbard, Conerly, and Davis to commit the Castleford shooting. D. Conerly’s Contentions Conerly contends “there was insufficient evidence to convict him given the evidence presented at trial.” Specifically, he argues “there were no eyewitnesses to the crime[;]” “officers did not ensure they were properly collecting the evidence in this case[;]” “[t]he [DNA] testing in this case could not determine when the DNA was even deposited on any given object[;]” and “there is no objective standard by which to corroborate Brown’s [firearm expert] conclusion as the process is entirely subjective and Brown acknowledged that there was no way to determine whether her results were accurate.” We disagree. Here, when reviewing the evidence in the light most favorable to the judgment, substantial evidence exists to support Conerly’s convictions. First, Conerly’s clothing at the time of his arrest was consistent with the clothing worn by the third individual who exited the Nissan’s driver’s seat. Second, a cell phone seized from Conerly’s person had transmitted from the same cell tower as Webber, Hubbard, and Davis’s phones throughout the day on December 19, and those same phones transmitted from the same cell tower near the site of the Castleford shooting at the time of the shooting. Further, the cell phone in Conerly’s possession contained searches for “Springfield XD firearms, specifically the XD9, the XD40, XD45, as well as different models of Glock firearms.” As it related specifically to Glock firearms, the cell phone had a search for a “Glock 17 with switch, Glock 19 with extended clip, Glock 19 Gen 5 [a]nd then in regards to firearms components there was real Glock 19 slide and Glock 19 slide.” These firearms were similar to the ones used in the shooting.

Third, law enforcement seized a loaded Polymer 80 firearm from Conerly’s person at the time of his arrest and subsequent testing determined the firearm contained Conerly’s DNA and that this firearm had fired 20 of the 71 shell casings recovered from the Castleford shooting area. Finally, Conerly’s DNA was found on the Nissan’s steering wheel, which provided corroboration of him being the driver in the surveillance video. Overall, this evidence provided the jury with reasonable, credible and solid evidence from which the jury could conclude that Conerly was present and participated in the Castleford shooting. Nonetheless, Conerly argues his convictions should be reversed because “there were no eyewitnesses to the crime” and the DNA and ballistics evidence lacks credibility because law enforcement failed to properly collect the evidence and there is nothing to corroborate Brown’s (firearm expert) conclusions. However, as noted above, “we do not reweigh the evidence . . . and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact.” (Stewart, supra, 77 Cal.App.4th at p. 790.) Accordingly, substantial evidence exists to support the jury’s conclusion that Conerly was one of the individuals who participated in the Castleford shooting, and thus substantial evidence supports the jury’s guilt findings. II. Gang Allegations Further, in their opening briefs, Webber and Davis contend there was insufficient evidence to establish the substantive gang offenses, gang enhancements, and gang-related firearm offenses. Additionally, in his opening brief, Hubbard contends the trial court prejudicially erred “when instructing on the elements of ‘criminal street gang’ and the collective engagement element by omitting instruction on the organizational nexus requirement[.]” As indicated above, as to both Webber and Davis, the Attorney General concedes in its opening briefs they are entitled to a reversal of the substantive gang offense, gang enhancements and gang-related firearm offenses because “[t]here is insufficient evidence

that [they] committed the Castleford Street shooting with the specific intent to promote, further, or assist in criminal conduct by gang members[,]” which is required under section 186.22, subdivisions (b)(1) and (g). We accept the Attorney General’s concession and reverse the substantive gang offense, gang enhancements, and gang- related firearm offenses against Webber and Davis. However, because Hubbard and Conerly did not make an insufficiency of the evidence claim in their opening briefs, we must therefore decide whether this issue is forfeited on appeal. As we discuss in detail below, we conclude this issue is not forfeited and reverse these offenses and enhancements as to Hubbard and Conerly as well. A. Forfeiture Generally, “ ‘[w]hen an appellant fails to raise an issue in the opening brief . . . we . . . decline to address the issue or address it in a summary manner.’ ” (Ramirez v. Charter Communications (2024) 16 Cal.5th 478, 500 (Ramirez).) Therefore, “ ‘[i]ssues not raised in an appellant’s brief are deemed waived or abandoned.’ ” (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 836.) This is due to the fact that “ ‘[w]ithholding a point . . . deprives the respondent of an opportunity to answer it . . . Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before.’ ” (People v. Selivanov (2016) 5 Cal.App.5th 726, 794.) Accordingly, “[i]t is axiomatic that arguments made for the first time in a reply brief [or not all] will not be entertained because of the unfairness to the other party.” (People v. Tully (2012) 54 Cal.4th 952, 1075.) With that being said, our Supreme Court has articulated that “[a]s a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates . . . a claim otherwise identical to one that was properly preserved . . . and to apply a legal standard similar to that which would also determine the claim raised on appeal.” (People v. Yeoman (2003) 31 Cal.4th 93, 117; accord, Cole, supra, 33 Cal.4th at p. 1195, fn. 6.) Here, as noted above, the Attorney General concedes that Webber and

Davis are entitled to a reversal of the substantive gang offense, gang enhancements and gang-related firearm offenses because “[t]here is insufficient evidence that [they] committed the Castleford Street shooting with the specific intent to promote, further, or assist in criminal conduct by gang members.” However, both Hubbard and Conerly did not make an insufficiency of the evidence claim in their opening briefs. Although typically “ ‘[w]hen an appellant fails to raise an issue in the opening brief . . . we . . . decline to address the issue or address it in a summary manner’ ” (Ramirez, supra, 16 Cal.5th at p. 500), the prosecutor in this case introduced the same five predicate offenses as to all four defendants to the same jury for the purpose of establishing “the offenses commonly benefited a criminal street gang[.]” (§ 186.22, subd. (e)(1).) Therefore, to consider the insufficiency of the evidence as it relates to all four defendants “entails no unfairness to the” Attorney General who had the opportunity to fully brief and address the sufficiency of the gang evidence as to Webber and Davis specifically. (Yeoman, at p. 118.) Because the Attorney General had the opportunity to address the sufficiency of the gang evidence as to all defendants, fairness principles do not bar this court from addressing the sufficiency of the gang evidence as it relates to Hubbard and Conerly as well. Accordingly, we address the sufficiency of the evidence claims as to all four defendants below. B. General Legal Principles “In 2021, the Legislature passed Assembly Bill [] 333 . . . known as the STEP Forward Act of 2021” and it “became effective January 1, 2022.” (People v. Burgos (2024) 16 Cal.5th 1, 7, 9 (Burgos).) “Assembly Bill 333 amended Penal Code section 186.22 by imposing new substantive requirements relating to gang enhancements and the criminal offense of gang participation.” (Burgos, at p. 7, fn. omitted.) “ ‘First, it narrowed the definition of a “criminal street gang” to require that any gang be an “ongoing, organized association or group of three or more persons.” (§ 186.22, subd. (f), italics [omitted].) Second, whereas section 186.22, former subdivision (f) required only

“(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).” (§ 12022.53, subd. (e)(1).) Essentially, section (d) imposes a 25-year-to-life enhancement for the personal discharge of a firearm that proximately causes death or great bodily injury to a person other than an accomplice in the commission of a described offense. (§ 12022.53, subd. (d).) Subdivision (e)(1) does not itself create an enhancement; rather, it makes applicable one of the subdivision (b), (c), or (d) enhancements to a person who is a principal in the commission of a described offense regardless of whether that person personally used or discharged a firearm if the person violated section 186.22 and any principal used or discharged a firearm in the commission of a described offense. Therefore, an aider and abettor in a gang promotion activity may be subject to a section 12022.53, subdivision (b), (c), or (d) enhancement even though he or she did not personally use or discharge the firearm so long as any principal in the offense did so. As to Hubbard, Davis, and Conerly, the jury found true in Phase I of the trial the subdivision (d) enhancement, as alleged in counts 1, 3, and 5. Specifically, the jury found that Hubbard, Davis, and Conerly “did personally and intentionally discharge a firearm which proximately caused great bodily injury or death to another person . . . during the commission” of counts 1, 3, and 5. Further, the jury was instructed with CALCRIM No. 3149 (Personally Used Firearm: Intentional Discharge Causing Injury or Death), which required the jury to find that Hubbard, Davis, and Conerly personally discharged a firearm during the commission of counts 1, 3, and 5, and their acts caused great bodily injury to a victim. Overall, the jury’s true findings on the section 12022.53, subdivision (d) allegations did not require a gang finding. Because the subdivision (d) findings did not require a gang finding, and thus, Assembly Bill 333’s changes to section 186.22 are not implicated, the jury’s true finding on the section 12022.53,

reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) We “will not disturb the court’s ruling[s] ‘except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Megown (2018) 28 Cal.App.5th 157, 164.) However, even if the trial court erred, evidentiary error is harmless if it is not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Marks (2003) 31 Cal.4th 197, 227 (Marks); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) “ ‘Prejudice from erro[neous admission of evidence] is never presumed but must be affirmatively demonstrated by the [defendant].’ ” (Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1616.) 3. Analysis a. Surveillance Footage (Exhibit 31) First, Conerly argues “[t]he surveillance footage was not relevant as it could not reasonably assist the prosecution in proving the events on the night in question because the footage contained an unreliable depiction of the events where it was concededly blurry, the colors were hard to determine, and the police could not confirm the video’s time stamp.” Evidence Code section 250 defines a videotape as a writing and “[a]uthentication of a writing is required before it may be received in evidence.” (Evid. Code, § 1401, subd. (a).) Authentication requires “sufficient evidence for a trier of fact to find” that the video recording “is what it purports to be, i.e., that it is genuine for the purpose offered.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267 (Goldsmith); see also Evid. Code, § 1400.) “ ‘The fact conflicting inferences may be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility.’ ” (Goldsmith, at p. 267, quoting Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.) The proof required to

authenticate a video recording “varies with the nature of the evidence that the . . . video recording is being offered to prove and with the degree of possibility of error.” (Goldsmith, at p. 267.) Typically, a video recording is “authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citations.] It may be supplied by other witness testimony, circumstantial evidence, content and location.” (Id. at pp. 267-268.) Here, although Conerly argues the footage was “blurry, the colors were hard to determine, and the police could not confirm the video’s time stamp[,]” these arguments about the quality of the video address the weight of the evidence, not its admissibility. C.P. testified the surveillance videos (People’s Exhibit Nos. 30 & 31) were accurate depictions of the events immediately before, during, and after the shooting. Further, although C.P. made inconsistent statements regarding the color of the suspect vehicle, these credibility and factual issues affected the evidence’s weight, but not its admissibility. Accordingly, because the surveillance videos were properly authenticated and highly probative of the factual disputes at issue in the trial, the trial court properly exercised its discretion in admitting the videos at trial. b. Cell Phone History Second, Conerly argues “the trial court erroneously admitted [his] cellphone search history relating to guns and gun-related information” because “[t]he probative value of the search history evidence was substantially outweighed by the prejudicial effect to [him] as the jury would have likely viewed [him] as a violent individual solely based on knowing that he allegedly had searched for firearms or firearm-related content online.” Here, this search history was highly probative to establish Conerly as one of the individuals involved in the Castleford shooting. Conerly disputed his identity as one of the shooters. Therefore, evidence establishing that Conerly’s cell phone had been used to

search the internet for information regarding various firearms – which were similar to the firearms used in the Castleford shooting – was highly probative to establish Conerly’s involvement in the underlying offense. Further, this search history evidence was unlikely to “unduly prejudice” Conerly because there was little to no risk this evidence would uniquely tend to inflame the jurors’ emotions or cause them to use the evidence of an illegitimate purpose. Just because the evidence was prejudicial, does not mean it was “unduly prejudicial.” (People v. Karis (1988) 46 Cal.3d 612, 638 [“ ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial” . . . “prejudicial” is not synonymous with “damaging” ’ ”].) Nonetheless, Conerly heavily relies on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) in support of his position. In Albarran, a jury convicted the defendant of crimes relating to a shooting at a party and a subsequent carjacking. (Id. at pp. 217-218.) Although the defendant was charged with a gang enhancement, “[t]he prosecutor noted, however, that he had no percipient witness or evidence to prove the crime was gang related or motivated[.]” (Id. at p. 219.) At trial, the only evidence the prosecution presented to show the shooting was gang related was that “(1) the shooting occurred in Palmdale, (2) it occurred at a party and gang members often commit crimes during parties; and (3) more than one shooter was involved.” (Id. at p. 221.) The trial court allowed the gang evidence, which included the defendant was a member of a gang, descriptions of the gang’s activity – including threats against police officers and an ongoing gang “war.” (Id., at pp. 221, 228.) The Court of Appeal concluded the gang evidence was irrelevant and prejudicial. Specifically, it concluded, “There is nothing inherent in the facts of the shooting to suggest any specific gang motive. In the final analysis, the only evidence to support the respect motive is the fact of [the defendant’s] gang affiliation.” (Albarran, supra, 149 Cal.App.4th at p. 227, fn. omitted.) The court continued and stated, “Even if we

were to conclude that evidence of [the defendant’s] gang membership and some evidence concerning gang behavior were relevant to the issue of motive and intent, other extremely inflammatory gang evidence was admitted, which had no connection to these crimes. The prosecution presented a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges.” (Ibid.) Here, unlike in Albarran, Conerly’s search history was relevant to establish his involvement and planning in the Castleford shooting. Specifically, Conerly searched for similar firearms used in the underlying offense, and this search of similar firearms established a “connection to these crimes.” (Albarran, supra, 149 Cal.App.4th at p. 227.) Accordingly, because this evidence had a tendency to establish that Conerly was involved with the other co-defendants in committing the shooting and the search history evidence had little to no risk of causing him “undue prejudice,” the trial court properly exercised its discretion under Evidence Code section 352 in admitting this evidence. 4. Prejudice However, even if we assume the trial court erred in admitting the surveillance video and Conerly’s search history, any error was harmless under the Watson standard of prejudice. As stated above, evidentiary error is harmless if it is not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (Marks, supra, 31 Cal.4th at p. 227; Watson, supra, 46 Cal.2d at p. 836.) There was strong evidence of Conerly’s guilt apart from the surveillance video and internet search history on his phone. Specifically, the cell phone seized from Conerly’s person had transmitted from the same cell tower as Webber, Hubbard, and Davis throughout the day on December 19, and those same phones transmitted from the same cell tower near the site of the Castleford shooting at the time of the shooting. Further, and most importantly, Conerly possessed a Polymer 80 firearm on his person, which law enforcement later determined had fired 20 of the 71 shell casings recovered

is favorable to the accused and material to the issues of guilt or punishment. [Citations.] Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings.” (People v. Jenkins (2000) 22 Cal.4th 900, 954 (Jenkins).) A delay in disclosure of evidence does not necessarily implicate a defendant’s due process right to be informed of material evidence favorable to the accused. (Id. at pp. 950-951.) “[A] true Brady violation occurs when three conditions are met: ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ [Citation.] Under this standard[,] prejudice focuses on ‘the materiality of the evidence to the issue of guilt or innocence.’ ” (People v. Lucas (2014) 60 Cal.4th 153, 274 (Lucas), disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) b. Section 1054.1 Section 1054.1 provides, in pertinent part, that the “prosecuting attorney shall disclose” certain types of material to defense counsel if the evidence “is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies[.]” (§ 1054.1.) Evidence subject to disclosure includes “names and addresses of persons the prosecutor intends to call as witnesses at trial” (§ 1054.1, subd. (a)), “[s]tatements of all defendants” (id., subd. (b)), “[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged” (id., subd. (c)), any “relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts” (id., subd. (f)), and “[a]ny exculpatory evidence” (id., subd. (e)). Such disclosure “shall be made at least 30 days prior to the trial” or as soon as the prosecution learns of the documents or information. (§ 1054.7.) To prevail on a

claim alleging a violation of discovery statutes, the defendant must show there is a reasonable probability that, had the evidence been disclosed, the result of the proceedings would have been different. (People v. Zambrano (2007) 41 Cal.4th 1082, 1132 (Zambrano), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) 4. Analysis First, the prosecutor did not commit a Brady violation by failing to disclose notes concerning his pretrial meeting with C.P. As stated above, “a true Brady violation occurs when three conditions are met: ‘The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ ” (Lucas, supra, 60 Cal.4th at p. 274.) Here, Conerly has failed to establish the evidence was suppressed as a result of a presumed violation. The prosecutor “informed [the defense attorneys] that [he] met with [C.P.], the witness here in this case . . . [and] had him listen to his body-worn statement . . . [and] videos, Video No. 1 and Video No. 2.” He “informed the defense of this at the beginning of th[e] week.” During the Evidence Code section 402 evidentiary hearing, Investigator Hubbard corroborated the prosecutor’s representations to the trial court and stated, “[T]he purpose of [his] presence during the meeting or those meetings was to document anything that was out of the ordinary that would have come up [a]nd there wasn’t anything that was out of the ordinary, so it wasn’t documented.” Further, the trial court correctly concluded the defendants’ counsel had been placed on notice that C.P. had observed an individual getting into the Nissan the night of the shooting. Specifically, the trial court found “that was something that they were aware of from the evidence in the police report and the body-worn camera video when Hackleman interviewed the witness” because C.P. had told Hackleman he observed “somebody just like walking into the car and slamming” the door. Because C.P. was

available for interview and there is no indication the prosecutor possessed C.P.’s statement prior to trial, the evidence was not suppressed by the prosecutor. (See People v. Morrison (2004) 34 Cal.4th 698, 715 [“[E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery”].) Accordingly, the prosecutor did not violate his Brady discovery obligations. Second, we also find the prosecutor did not violate his statutory discovery obligations pursuant to Evidence Code section 1054.1. As noted above, based on the police report and body-worn camera, defendants’ counsel became aware of C.P.’s statement and “[i]t is not something that first became known around the time of [the prosecutor’s] meeting with the witness.” Further, “after this was all disclosed and discussed . . . all defense counsel [including Conerly’s attorney] had an opportunity to follow up with [C.P.] about what happened at the meeting with [the prosecutor], what [the prosecutor] said to the witness, [and] what the witness said to [the prosecutor].” Finally, C.P. was always subject to recall and if there was something that Conerly’s attorney wanted to address, she should have put C.P. “back here [on the stand] and put it on.” Accordingly, the trial court properly exercised its discretion in denying Conerly’s motion for a mistrial based on a violation of section 1054.1 5. Prejudice However, even assuming the trial court erred in denying Conerly’s discovery motion, we still conclude Conerly would be unable to establish prejudice. To establish prejudice under Brady and section 1054.1, the defendant must establish “a reasonable probability . . . that a different result would have occurred in the proceeding had the evidence been disclosed to the defense.” (Jenkins, supra, 22 Cal.4th at p. 954; Zambrano, supra, 41 Cal.4th at p. 1132.) As noted above, the parties became aware of the alleged discovery violation during C.P.’s cross-examination, and C.P. was still subject to recall three weeks (October 5, 2022 to October 27, 2022) after Conerly’s attorney first

People v. Hubbard CA5

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MICHAEL WEBBER,

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I. Hubbard

II. Webber

III. Davis

IV. Conerly

DE SANTOS, J.

AI Brief