P. v. Martinez-Carreon

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Filed 12/13/17 P. v. Martinez-Carreon CA1/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAMS MARTINEZ-CARREON et
al.,
Defendants and Appellants.
A141670 & A141679
(Marin County Super. Ct.
Nos. SC173762B & SC173762C)
Appellants Armando Gil and Williams Martinez-Carreon (Martinez) were each
convicted, following a jury trial, of two counts of attempted murder and one count of
criminal street gang activity (or the gang offense). On appeal, Gil contends his retrial
violated double jeopardy principles; the trial court abused its discretion when it denied
his motion to sever his trial from that of codefendant Martinez; and the prosecution’s
expert witness was improperly permitted to relate case-specific testimonial hearsay.
Martinez contends the trial court should have instructed the jury on the elements of aiding
and abetting under the natural and probable consequences doctrine as to him with respect
to the two attempted murder counts, and punishment on the gang offense should have
been stayed under Penal Code section 6541 since he was found guilty of attempted
murder based on the same underlying conduct. Both appellants also make several
sufficiency of the evidence claims regarding elements of the gang offense and the gang
1 All further statutory references are to the Penal Code unless otherwise indicated.

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enhancement, and further contend the court’s instruction on attempted premeditated
murder under the natural and probable consequences doctrine violated the California
Supreme Court’s recent holding in People v. Chiu (2014) 59 Cal.4th 155 (Chiu). Both
Gil and Martinez also contend the court erred when it excluded the Facebook statements
of an uncharged alleged co-perpetrator, which they argue were admissible as declarations
against penal interest. Finally, in a petition for rehearing, Martinez argues that
Proposition 57, also known as the Public Safety and Rehabilitation Act of 2016
(Proposition 57) enacted while this appeal was pending, applies retroactively to his case
and requires remand to the juvenile court for a transfer hearing.
We shall stay both Gil’s and Martinez’s three-year sentence for the gang offense.
We shall otherwise affirm the judgment as to Gil. However, because we find that
Proposition 57 applies retroactively to cases such as Martinez’s that are not yet final on
appeal, we shall conditionally reverse the judgment as to Martinez only and remand the
matter to the juvenile court for a transfer hearing pursuant to Proposition 57.
PROCEDURAL BACKGROUND
On February 10, 2012, the Marin County District Attorney filed an information
against Gil and Martinez.2 In counts 1 and 2, Gil and Martinez were charged with the
attempted murders of Elias Agueros and Marcos Lopez. (§§ 664/187, subd. (a).) It was
alleged that the attempted murders were committed willfully, deliberately, and with
premeditation (§ 664, subd. (a)) and for the benefit of a criminal street gang. (§ 186.22,
subd. (b)(1)(C).) It was further alleged that Martinez personally and intentionally
discharged a firearm, causing great bodily injury to the two victims. (§§ 12022.53,
subds. (d) & (e)(1), 186.22.)
2 Martinez, who was 16 years old at the time of the offense, was charged as an
adult under Welfare and Institutions Code section 707, subdivision (d)(2).
Alessandra Coyle was originally charged as a codefendant, but she later pleaded
guilty to being an accessory after the fact (count 7), and the remaining charges against her
(attempted murder, assault with a deadly weapon, and participation in a criminal street
gang) were dismissed in exchange for her testimony at trial.

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In counts 3 and 4, Martinez was charged with assault with a firearm on the
victims. (§ 245, subd. (a)(2).) The information alleged related firearm use, great bodily
injury, and gang enhancements. (§§ 12022.53, subd. (d), 12022.7, subd. (a), & 186.22,
subd. (b)(1)(B).)
In count 5, Gil and Martinez were charged with assault with a deadly weapon (a
hammer) against Rhea Tomita. (§ 245, subd. (a)(1).) It was alleged that the offense was
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(B).)
In count 6, Gil and Martinez were charged with criminal street gang activity.
(§ 186.22, subd. (a).)
In counts 8 and 9, Martinez was charged with shooting at an occupied vehicle
(§ 246) that was occupied by the two victims. The information alleged related firearm
use, great bodily injury, and gang enhancements. (§§ 12022.5, 12022.53, subd (d),
12022.7, subd. (a), 186.22, subd. (b)(1)(B).)
In addition, as to counts 1, 3, and 8, it was alleged that Martinez personally
inflicted great bodily injury on Elias Agueros, causing him to suffer permanent paralysis.
(§ 12022.7, subd. (b).) Finally, as to counts 1, 2, 3, 4, 8, and 9, it was alleged that
Martinez carried a firearm on his person and in a vehicle during the commission of a
street gang crime. (§ 12021.5, subd. (a).)
The first trial began in October 2012, but the jury was unable to reach a verdict on
any of the charged counts, and the court declared a mistrial. Gil moved to dismiss count
5 at the end of the first trial due to insufficiency of the evidence. The court granted the
motion and entered a judgment of acquittal. (See § 1118.1.)
On November 20, 2013, at the conclusion of the second trial, the jury found both
appellants guilty of attempted murder (counts 1 & 2) and found true the allegations that
the offenses were committed with premeditation and deliberation and for the benefit of a
criminal street gang. The jury also found both appellants guilty of the gang offense
(count 6). The jury was unable to reach verdicts on the remaining charges against
Martinez: assault with a firearm (counts 3 & 4) and shooting at an occupied vehicle

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(counts 8 & 9), and the related enhancements.3 The court subsequently dismissed those
counts.
On April 9, 2014, the court sentenced each appellant to two consecutive terms of
life in prison with the possibility of parole on counts 1 and 2, and to a consecutive term of
three years on count 6.
Also on April 9, 2014, both appellants filed notices of appeal.
FACTUAL BACKGROUND
This case arises from a shooting and related crimes that took place outside of a
Safeway store in Novato early on the morning of January 3, 2011.
Prosecution Case
Alessandra Coyle, Gil’s girlfriend at the time of the offenses, testified that in
January 2011, she lived in a townhouse on San Andreas Drive in Novato with Gil; Gil’s
brother, Edilberto Gil-Tzun; and her seven-year-old daughter, who is physically disabled.
Coyle had never been in a gang, but she had associated with gang members such
as Gil, from age 14 to age 16. During her relationship with Gil, he was affiliated with the
18th Street gang in Marin, a gang that is associated with the Sureño gang. Gil had been
affiliated with the gang since he was a teenager. Gil had a tattoo on his stomach of the
numeral “18,” which was associated with the 18th Street gang. His nickname was
Smiley.
Coyle knew Martinez by the name Shadow. Gil and Martinez were friends, and
Coyle had seen them together a number of times, including at her home, and had also
seen them with other people she knew were suspected gang members. Gil also associated
with a person named Mousey (Luis Rodriguez). Both Martinez and Rodriguez were at
Coyle’s home on December 31, 2010, into January 1, 2011. Gil was there also. Martinez
had tattoos of “X” and “8” on the top of his hands, which mean “18.” He now also had
tattoos on his face, which he did not have on January 1, 2011.
3 Apparently, the jury remained deadlocked, 11 to 1, on each of these counts and
related enhancements.

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On January 2, 2011, Gil arrived at Coyle’s home around 7:00 p.m. He was
wearing a pea coat; he also had a mustache at that time. Gil asked her to give him a ride
to a friend’s house in the Hamilton neighborhood. She drove Gil in her light tan colored
2005 Toyota Prius to the Bay Vista apartments in Hamilton. Coyle parked and Gil got
out of the car. She saw him talking for a few seconds to at least eight males who
appeared to be in their teens before he walked away with them. The males were wearing
dark clothing, either black or blue. When asked whether she believed the males were
associated with a gang, Coyle responded, “I pretty much assumed that they were his
friends, so his friends are 18th Streeters, so, yeah.”
Gil returned to the car a few minutes later and told Coyle he wanted a beer. She
therefore drove him to a 7-Eleven store, where she bought him two beers and returned to
the car. A black BMW car pulled up next to her car and Gil talked to the two people in
the car for a couple of minutes. Coyle did not recognize the driver, but Martinez was the
passenger. Coyle then drove to another location, where she parked on the street next to
an apartment complex called Park Haven. Another car, a blue Corolla, pulled up. Gil
grabbed his “spray can” from the back seat of Coyle’s car, and he and the four people
from the other car walked towards the apartment complex while she waited in the car.
Approximately 15 to 20 minutes later, Gil and the other people came back; Gil got into
Coyle’s car and the other people got into the blue Corolla.
Gil then told Coyle to drive to Novato Street in the Canal district of San Rafael,
which she did. She parked on Novato Street and saw the blue Corolla pass by and park
somewhere else. Gil got out of the car and walked out of her sight. She waited in the car
for at least 45 minutes. While waiting, she texted Gil a few times and he texted back,
telling her he was almost there and to wait for him.
When Gil returned to the car, he was with Martinez and Rodriguez. They all got
into Coyle’s car and Gil told her to follow the blue Corolla to Woodland, an area in San
Rafael. She drove to Woodland, went up a hill on a windy road, and parked in a pullout
behind the blue Corolla. Gil, Martinez, and Rodriguez got out of Coyle’s car and met up
with five people from the other car, who were all dressed in dark clothing, some with

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their hoods up. They all sat outside and drank and smoked for over an hour while Coyle
remained in the car. Coyle texted Gil several times, but he did not respond.4 He
eventually returned to the car with Martinez and Rodriguez. Coyle said she had to go
home, but Gil was “really drunk” and “nodding out a little bit.”
Gil told Coyle to stop in Hamilton again on the way home, and she felt she had no
choice but to do what he said. She was not sure of the time, but estimated that “it had to
be around 11:00, 11:30, 11:45-ish, I think.” She therefore drove back to Hamilton and
stopped near the Creekside Deli. Gil got out of the car and went to a fence where there
was tagging by a different gang. Gil may have had a spray paint can in his hand.
Martinez and Rodriguez then got out of the car and the three men spray painted over the
other writing on the fence in black paint. She believed they painted “18th Street stuff.”
Specifically, they painted “187 XV3” and “18 ST Canal.” This tag was gang-related, as
were the tags that it covered up.
After the three men returned to the car, Gil told Coyle to drive them to the Bay
Vista apartments, where she had driven Gil earlier that night. He had her drive into the
complex and stop near some people who were getting into a small white car. She
observed two males getting into the front and rear passenger side of the car. Gil,
Martinez, and Rodriguez were also watching the males get into the car. The white car
then drove away briefly before coming back around in front of her car. The people in the
other car were looking at her car and Gil was looking at them. She saw that there were
four people inside the car, but she did not know who they were.
Gil told Coyle to follow the white car, which she did. As she drove, she heard Gil
say, “ ‘If I get down, are you guys getting down?’ ” She thought he might have been
asking if they were going to get out of the car with him. The white car turned into a
Safeway store parking lot and Coyle did the same. When the white car turned left into a
4 Coyle testified that she did not get out of the car and approach Gil because she
never approached him when he was with his friends due to his “attitude.” She did not
believe she had any option other than doing what he told her to do. He was intimidating
and had been violent toward her in the past, including beating her on two occasions.

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parking spot, Gil said to pull up behind it, which she did. Gil, Martinez, and Rodriguez
then “jumped out” of her car. Gil had a hammer in his hand and she saw him hit the front
driver’s side window of the white car with the hammer. Rodriguez was towards the back
of Coyle’s car, but she did not know exactly where. She saw Martinez with a gun in his
hand; the gun could have been black, but she saw a bit of silver on it. She then saw
Martinez shoot into the white car at least five times. She believed the gun was in his
right hand, but she was not sure.
Gil, Martinez, and Rodriguez then ran back to Coyle’s car and jumped inside.
Coyle panicked and yelled at Gil, “ ‘You just fucked me so hard. What about the
baby?’ ” The three men said, “ ‘Just drive. Just drive.’ ” She drove quickly out of the
parking lot and got onto the freeway heading North. Gil directed her where to go and had
her drop the three men off at the trailhead of an open space area. Coyle was nervous and
scared. She told Gil she was done and to leave her be before she left and drove home.
On her way home, Coyle called her former employer, Marilyn DeBasio, and spoke
with DeBasio’s granddaughter, Lauren DeBasio, telling her that “something really bad
had happened.” Lauren said she would call her mom, Lisa Holmes. Coyle then called
her own mother, who was taking care of Coyle’s daughter. Coyle also told her that
something really bad had happened, and asked her to “please watch my daughter.”
When Coyle got home, she was frantic, scared, sad, and angry with Gil. She woke
up her roommate, Gil’s brother, Gil-Tzun. Lisa Holmes called her back and she told
Holmes that something bad had happened.5 After that phone call, Coyle took the SIM
card out of her phone and flushed it down the toilet. She did this because it had Gil’s
information on it and he would be upset if police found it. Coyle then took her savings
out of her closet, put it on the kitchen table, and wrote a letter stating that her mother had
5 Lauren DeBasio and Lisa Holmes testified at trial about these phone calls. Both
said Coyle sounded panicked and was crying. She said that something bad had happened,
but did not say what it was. She told Holmes she had done something terrible, but had no
idea why it had happened, and was concerned about her daughter ending up in foster
care.

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permission to take care of her daughter. She did all this because she knew the police
were going to come to her home. She had seen a car briefly following her car after she
left Safeway; she believed the person in the car had gotten her license plate number
before turning around and heading back towards Safeway.
Approximately 10 minutes after she got home, Coyle heard helicopters. She went
out onto her front porch because she knew the police would be looking for her. She was
scared because she was going to be arrested. She saw police officers coming down her
driveway and she said, “ ‘Here I am. I’m the one that you’re looking for. That’s my car.
I’m the driver.’ ” The police asked her for her name and also asked if anyone else was in
her house. When she said her roommate was inside, the police ordered Gil-Tzun out and
had Coyle sit on the curb. She gave the officers consent to go into her home and told
them where her car was. The police then arrested her and took her to the Novato police
station.
Coyle testified that Officer Kory Jones interviewed her at the police station. He
read her her rights and she agreed to talk to him. She told him there were three people in
her car, but changed their names. She said Gil’s name was Sleepy. On January 20, 2011,
after she had hired a lawyer, her lawyer, a deputy district attorney, and Officer Jones
came to the jail and met with Coyle. She “had the opportunity to fix [her] story,” and
told the truth about who was in her car and exactly what had happened. Jones showed
her a photo lineup that day, and she identified Gil. She also identified a photo of the
shooter, Martinez, who she identified to the officer as Shadow. She was shown another
photo lineup, but was unable to identify any of the photos as depicting Rodriguez.
During the January 20 meeting, the district attorney did not make any offers or promises
to Coyle.
Subsequently, Coyle’s attorney contacted the district attorney about making a deal,
and he brought some documents to Coyle, which she read and signed on October 3, 2012.
She agreed to testify and answer all questions completely and truthfully in any
proceedings in this case in exchange for pleading guilty to a felony accessory after the
fact charge, with exposure of three years in prison. She was released from jail following

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the first trial in this case, after 22 months in custody. After she testified in prior
proceedings, Coyle was scared and asked to be relocated to another jurisdiction because
she believed it would be safer for her daughter and herself. She received a total of $1,000
in relocation funds, and two weeks in a hotel were paid for by the witness relocation
fund. She also had received witness fees to stay in a hotel during the current trial.
On cross-examination, Coyle testified that she and Gil had exchanged letters while
she was in jail, in which she expressed her love for him. She had also expressed the
belief that Gil was a good stepfather for her daughter. Her biggest concern while in
custody was the health and well-being of her daughter. In some letters, Coyle expressed
jealousy of Gil’s relationship with a woman named Jasmin. She knew Gil had been
involved with Jasmin before the current offenses, and Coyle had heard Jasmin was
visiting Gil in jail after he was arrested.
Coyle also wrote a letter to Gil in which she referred to “[a]ll the bullshit and lies,
people saying things that are so dumb thinking they’re right.” In some letters, she wrote
about Gil doing the right thing, i.e., clearing her name and telling the authorities the truth,
that she had no involvement in what had happened. Ultimately, when she realized “that
he wasn’t going to do what was right,” she needed to protect herself by making a deal to
testify for the prosecution. She hoped that if she “fixed [her] story to the truth and not a
lie,” she would eventually be offered a deal.
Coyle testified that even before they got together, Gil had stopped dressing like a
gangster. He also worked fairly consistently during their relationship, helping Coyle
financially when she needed it. Most of the time they were together, they did family-
oriented activities. Coyle also testified on cross-examination that on the night of the
shooting, Gil was not wearing a hat of any kind. In addition, she had never seen him with
a gun.
Edilberto Gil-Tzun, Gil’s brother, testified that he had lived at Coyle’s residence
for two or three years before January 3, 2011. Most of the time, Gil was not living there.
On January 3, 2011, when Coyle came home after midnight, Gil-Tzun was asleep. Gil-
Tzun woke up when he heard Coyle on the phone with her mother. She seemed nervous

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and emotional. She told him that something had happened, but did not say what it was.
A Novato police officer arrived at the house and talked to Coyle. Gil-Tzun also talked to
an officer. That morning, about 4:47 a.m., Gil-Tzun sent a text message to Gil that said,
“ ‘Do not go to the house.’ ” He received the response, “ ‘Okay.’ ” Gil later said he had
lost his phone and had not texted Gil-Tzun.
Gil-Tzun visited Coyle in jail after he met with Gil, who said to tell her “[t]hat
everything is fine.” Gil-Tzun visited Coyle in jail several times.
Gil-Tzun had never seen Gil hanging out with gangsters and he knew that Gil had
not associated with gangsters since the birth of his child.
Novato Police Officer Andrew Barrington testified that within 30 minutes of the
initial call regarding the shooting, he and five highway patrol officers went to Coyle’s
address in Novato, based on information that the license plate of the suspect vehicle was
associated with that address. As Barrington approached the apartment, he saw a woman
standing on the porch in front of the open front door. The woman looked scared and she
yelled, “ ‘It was my car. I was the driver.’ ” The woman, identified as Coyle, gave
officers consent to search her home. A gray Prius was found in the garage. Coyle told
officers there was one other person in the house and that person was directed to come
outside. When he came out, he was identified as Gil-Tzun. Another officer took an
initial statement from Coyle, which Barrington recorded. Coyle was “crying, still upset,
hyperventilating.”
Rhea Tomita, one of the four people who were in the white car at the time of the
shooting, testified that she is the ex-girlfriend of Shane Agueros, whose brother is Elias
Agueros.6 Marcos Lopez was Shane and Elias’s friend. On the evening January 2, 2011,
she was in the Hamilton area where she lived in an apartment with Shane and his parents.
Approximately 11:00 p.m., Tomita, Shane, Elias, and Lopez got into Shane’s white
Toyota Corolla to go to Safeway. She was in the rear middle seat, Shane was driving,
6 In this opinion, we will refer to Shane Agueros and Elias Agueros by their first
names, to avoid confusion.

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Lopez was in the front passenger seat, and Elias was seated to Tomita’s right in the back.
As they drove out of the apartment complex, Tomita noticed a car behind them. Shane
slowed down because the car was tailgating them. Elias turned around and said he saw a
girl driving and told Shane to disregard it.
When they arrived at the Safeway parking lot, as soon as Shane parked the car,
Lopez said something like, “ ‘Look to your left.’ ” Tomita looked to her left and saw
someone with a hammer on the left side of the car; the hammer had a yellow handle.
Although she could not recall for sure, she thought she saw the person swing the hammer
at the window. He had a look of surprise on his face and was looking towards her,
though she was unsure if he was looking at her or past her. Then, within seconds, she
heard loud noises like fireworks as someone shot at the car, and she felt something hit her
back. After the gunshots, Shane called for Tomita to get out of the car. Elias was on top
of her, so she sat him up and climbed over him to get out. She and Shane then ran into
Safeway and yelled for someone to call 911.
The person with the hammer was a male with dark hair, wearing a beanie and a
black and purple striped jacket.7 He had a skinny build. At trial, she did not recall what
his face looked like, but she remembered describing him to police right after the shooting
as looking like he was Mexican and Asian. At the time of the shooting, she did not see
the person who fired the gun. Tomita was not able to identify anyone in a six-person
photo lineup she saw after the shooting.
Tomita testified that Shane and Elias were not gang members. She did not know if
Lopez was a gang member. On cross-examination, she confirmed that Shane had a tattoo
on his stomach that said, “MBK.”
Shane testified that shortly before midnight on January 2, 2011, he drove Elias,
Lopez, and Tomita in his white Toyota Corolla to Safeway in Novato, which was about a
mile away from his home at the Bay Vista Apartments, where he lived with Tomita.
7 A black beanie cap was subsequently found in the front passenger seat of Coyle’s
car. DNA recovered from the beanie was found to be a match for Gil.

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They went to Safeway to get some food and movies. Lopez was sitting next to him in the
front passenger seat, Elias was directly behind Lopez, and Tomita was in the rear middle
seat. Before leaving the apartment complex parking lot, Shane saw a small car with
bright headlights pull into a parking place. The same car then followed Shane’s car out
of the parking lot; it was following too closely. He pumped his brakes to warn the car to
back off, which it did.
When Shane arrived at Safeway, he parked the car and turned off the
ignition. He then heard a tapping on the driver’s side window. He looked to the left and
saw a person wearing a dark colored hoodie and holding a hammer with a yellow handle.
When the prosecutor asked if he had testified at a prior proceeding about what the person
had on his head, Shane said he believed he had described the person as wearing a black
beanie. He was shown a black beanie at trial, which he said was “the spitting image” of
the beanie the person was wearing. The person looked Hispanic or Asian, with a little
mustache, and he also looked scared.8 The person with the hammer did not break either
window on the driver’s side of the car. He did not see the car that had pulled up behind
them. Shane got out of the car and told Tomita, who was screaming, to get out of the car.
He and Tomita then ran into the store and told people inside to call 911.
Shane was unable to positively identify anyone as the person with the hammer in a
photo lineup shortly after the shooting or at the first trial. He did, however, circle Gil’s
photo as the person in the photo lineup who looked most like the person with the
hammer.
Shane was interviewed by Novato Police Officer Hinkle after the shooting. He
told the officer that he had been at his friend Nicole Gilbert’s house earlier that evening.
During a subsequent police interview, he told Hinkle about a possible altercation
8 On cross-examination, Shane testified that he had described the person to police
as being five feet six to five feet seven inches tall and weighing 135 to 140 pounds. Age-
wise, he appeared to be “ ‘18 to 20’s.’ ”

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involving his associate, Justin Sheets. Shane did not know of any personal dispute over
Gilbert that had occurred that day.
Shane testified that there were no guns in his car and that he had never been a
gang member, although he had “hung out” with gang members, both Norteños and
Sureños, since “you can’t go to high school nowadays without knowing or seeing gang
members.” Lopez, who was a good friend of both Shane and Elias, had been a gangster
at one time, but had stopped after the first of his three children was born, nine years
earlier.
Elias, who was 26 years old at the time of trial, testified that in January 2011, he
lived in San Francisco. But on the night of January 2, he was with Shane, Tomita, and
Lopez at his father’s home at the Bay Vista Apartments in Hamilton. Shortly before
midnight, Elias, Shane, Tomita, and Lopez went to Safeway in Shane’s white Toyota
Corolla. They planned to rent a movie and get snacks. Shane was driving, Lopez was in
the front right passenger seat, Tomita was in the rear middle seat, and Elias was in the
rear right seat. As they were leaving Bay Vista, Shane slowed down because a car was
tailgating them and its headlights were shining into the car. After the car backed off,
Elias looked back and saw a red Prius with a female driver.
When they arrived at Safeway, Shane parked the car. As soon as Shane turned off
the engine, a car pulled in at an angle behind their car, blocking them in. Elias saw
someone jump out of the right front passenger seat of the other car. The person was a
Latino male, wearing a black hooded sweatshirt; Elias did not recall if he had anything on
his head. The person had a hammer, which he used to strike the driver’s side window of
Shane’s car. As Elias was looking at that person, he heard and felt gunshots. He felt a
shot in the neck, and was hit again at least once more.
Elias testified that at the time of the shooting, he, Shane, Tomita, and Lopez were
not gang members. Elias believed Lopez was a former gang member, but he was never
active when Elias knew him. As a result of being shot, Elias was a quadriplegic and had
been hospitalized almost 20 times, including a hospital stay of over a month shortly
before trial.

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Novato Police Officer Alan Bates testified that shortly after midnight on January
3, 2011, he was dispatched to a Safeway store in Novato. When he arrived, he saw a
small white sedan with two people inside, multiple holes in the rear window, and glass on
the ground. He approached the car and saw that the person in the right rear seat of the car
was extremely pale, with labored breathing. The person in the front seat appeared to be
in pain and said it was difficult for him to breathe. He identified himself as Marco and
said something like, “ ‘They came up from behind us and started shooting.’ ” Both
passengers were transported to local hospitals.9
Bates testified that, in addition to the bullet holes in the rear window of the car, he
saw a hole in the driver’s side door that was not consistent with a gunshot, but was
consistent with the impact of a blunt object such as a hammer.
Novato Police Officer Michael Ramirez testified that he was dispatched to the
parking lot of the Safeway store in Novato at 12:13 a.m. on January 3, 2012. When he
arrived at the scene in his patrol car, Shane ran up to him and yelled, “ ‘They shot my
brother, they shot my brother.’ ” Ramirez approached the white car and saw that the rear
window was cracked and had four holes in it, and the rear passenger window was
smashed. There was a male in the back seat who was slouched over and bleeding
profusely from the right side of his neck. In the front passenger seat, another male was
bent over, holding his leg. Ramirez saw that there was a hole in his back, between his
shoulder blades; it appeared to be a gunshot wound.
Approximately 10 minutes later, Ramirez spoke with Rhea Tomita, who was
sitting on the curb, crying uncontrollably. She told him she had been seated in the middle
back seat of the white car; Shane was the driver, Marcos Lopez was seated in the front
9 Trauma Surgeon Chris Kosakowski, who treated Elias after the shooting,
testified that he suffered from four life threatening gunshot wounds to his neck, upper
back, right hand, and left forearm. He remained in intensive care from January to May
2011. As a result of a spinal cord injury, he was now a quadriplegic. Dr. Ann
Vercoutere, who performed surgery on Lopez after the shooting, testified that Lopez had
gunshot wounds in his back and shoulder. He was discharged from the hospital after a
week.

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passenger seat, and Elias was seated in the rear, next to her on the right side. Tomita said
they had been driving from an apartment to Safeway and a car was following them,
repeatedly flashing its high beams. After they arrived at Safeway and parked in the lot,
she heard the sound of fireworks and felt glass hitting her back. She looked to the right
side of the car and saw a male standing there holding a yellow-handled hammer in his
right hand. There was also something in his left hand, but she could not recall what it
was. She said the male had medium dark skin, with straight black ear-length hair. He
was wearing a black and purple hooded zipped sweater with horizontal stripes and a
black beanie. She described him as half Asian, half Hispanic.
Ramirez also spoke with a woman named Mary Eid, who was a witness to what
had occurred. She was upset, but told him that she was on her way out of the Safeway
parking lot when she saw the white car parked in the lot. There were two males standing
near the rear of the driver’s side of the vehicle and one male standing near the rear of the
passenger side. After she drove by, she heard four loud gunshots. She immediately
stopped her car and made a U-turn, at which time she saw two males getting into a blue
four-door car. Eid could not describe the faces of the three males, but was able to
describe the clothing of the male who was standing at the right rear passenger side of the
car. She said he was wearing a gray hooded sweatshirt and blue jeans.
Novato Police Officer Nick Conrad testified that he found a black beanie on the
front passenger seat of Coyle’s car. A spray can cap was found on the front passenger
seat. Conrad also examined the victims’ car and found two bullet fragments.
About three days after the shooting, on January 6, 2011, Conrad and other officers
contacted Martinez, who was on juvenile probation with a search condition, at his home.
Martinez was 16 years old at the time; he was five feet six inches tall and weighed 140
pounds. Martinez said he had no knowledge of the shooting and denied knowing any of
the involved parties. Martinez said he used to associated with Sureño gang members, but
no longer did so. Conrad noticed that he had tattoos of an “X” and an “8” on his hands,
but did not have any tattoos on his face. Officers found Martinez’s phone in the family

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car and subsequently downloaded its contents for analysis. No guns were found during a
search of Martinez’s home.
Criminalist John Yount testified that he examined three bullet fragments obtained
from the scene and determined they were from a .38-caliber bullet, which is most
commonly used in a revolver.
Novato Police Sergeant Daniel Jenner testified that after the shooting, he obtained
surveillance video clips from the Safeway store. The clips showed the victims’ white
sedan enter the parking lot and pull into a parking spot around 12:10 a.m. Immediately
afterwards, a silver or gray hatchback pulls up and comes to a stop behind the white car.
Several subjects can then be seen walking from the gray hatchback toward the white car.
A subject in dark clothing can be seen moving to the front driver’s side of the white car.
One or more subjects are visible standing to the rear of the white car and a flash of light
appears from the outstretched hand of one of the subjects, which Jenner believed was a
gunshot.
Initially, Jenner believed the video showed two individuals: the one in dark
clothing and the one who stands in the back from whom the flash emanates.
Subsequently, after reviewing the clips of the scene from multiple angles, he saw a third
person in addition to the individual at the rear of the victims’ vehicle and the one at the
front driver’s side window area. The third individual is at the rear driver’s side of the
victims’ car. The video also shows the three people moving quickly back towards the
gray hatchback.10 The hatchback can then be seen driving north out of the parking lot.
Shortly thereafter, two subjects appear to exit the white car and run towards and into the
Safeway. The two people were later identified as Shane and Tomita.
Jenner testified that Gil, whose gang moniker is Smiley, was arrested on February
13, 2011. Martinez, whose gang moniker is Shadow, was arrested on May 26, 2011.
10 On cross-examination, Jenner acknowledged that in his police report and at the
previous trial, he had said the video showed two people exiting and returning to the gray
hatchback. Since his prior testimony, Jenner had watched the video clips another 5 to 10
times, and again in court during the present trial, frame by frame.

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Novato Police Detective Trevor Hall testified as an expert on “gangs, gang culture,
gang identification, gang investigations, gang violence in Marin County, and gangs in the
city of Novato.” Since becoming a police officer in 2003, Hall had participated in at least
100 hours of training on gang identification, investigations, and culture. He had been a
member of the California Gang Investigators Association for the past five years and
frequently received written information from that organization. He also regularly
reviewed bulletins from the National Gang Intelligence Center and had often represented
the Novato Police Department in meetings with law enforcement from other Marin
County cities regarding coordination of gang investigations. Hall also talked to other
police officers about gang activity as it related to Novato and Marin County.
Previously, between 2001 and 2003, Hall was a correctional officer in Napa
County, where he regularly came into contact with gang members, such as Norteños and
the various cliques of Sureños, including 18th Street gang members. Since he became a
police officer in 2003, he had participated in investigations of various gang related
crimes, including graffiti vandalism, assaults, shootings, and stabbings. He had
participated in arrests of gang members, had prepared search warrants, had spoken with
gang members, had worked with other law enforcement agencies to investigate gang
crimes, had managed a considerable amount of intelligence that officers obtained on gang
members, and had reviewed reports of gang crimes. He had executed five to seven gang-
related search warrants and had training and experience in recovering gang-related
evidence, including photographing vandalism and connecting graffiti tags to the
responsible gangs.
Hall also had training and experience in reviewing cell phone media, including
text message data, photographs, and voice mails, and had experience reviewing gang
websites for current information about particular gangs, including photographs of
individuals, clothing, tattoos, terminology and slang, and hand signs. Over the past five
years, he had participated in “gang enforcement nights,” in Marin County, where police
contacted known gang members in the community, and had participated regularly in
meetings with other investigators “to speak about gang crimes and gang members within

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the county.” He had also been a member of the FBI Safe Streets Task Force, in which he
held the position of Special Deputy Federal Agent with the FBI. He had cross-referenced
gang associates, members, and affiliates. He had previously testified once in the Marin
County criminal court as a gang expert.
Hall had been in contact with Sureño gang members since 2001. The Sureño
gang, whose members are predominantly Hispanic, originated in Southern California and
Mexico. Sureño gang members affiliate with La Eme—the Mexican Mafia—which is a
nationwide prison gang. Sureños’ most common rival is the Norteño gang, which pays
homage to the prison gang Nuestra Familia.
There are several subsets or cliques under the Sureño “umbrella.” The 18th Street
gang is a Sureño clique and is a dominant gang in Marin County. Hall had contacted at
least 100 Sureños in his career, including at least 40 18th Street gang members in Marin
County. He had also spoken to gang members about their criminal gang activity,
including such activity in Novato. He was familiar with the common signs and symbols
of the 18th Street gang in Novato and Marin County. He had spoken with Sureño gang
members about their criminal street gang philosophy and how they identify themselves,
including by tattoos.
Hall had had 5 to 15 law enforcement related contacts with 18th Street gang
members in Marin County. His knowledge of the 18th Street gang was also based on
conversations with other officers and law enforcement agencies, and reviews of reports
and field ID cards. The West Side Wynos gang is also a Novato clique; Hall had had at
least 10 personal contacts with West Side Wino gang members. Sureños have rivalries
within their own gangs. In fact, according to FBI crime statistics, intra-gang violence is
the most prevalent type of gang violence nationwide. In Hall’s training and experience,
there are rivalries between 18th Street gang members and other Sureño gang members.
Sureño gang members use the color blue and the number 13—the 13th letter of the
alphabet, M, for the La Eme affiliation—to identify themselves. 18th Street gang

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members use the number 18 to identify themselves.11 Hall had seen many photographs of
18th Street gang members displaying gang hand signs, most commonly the letter E.
Gang members also display tattoos on any part of the body. Tattoos indicate a person’s
affiliation with a particular gang and adding more tattoos can indicate status. In his
training and experience, Hall had looked at different symbols, drawings, and writings to
determine the gang that is depicted in them.
In Hall’s experience, gang members usually go by a moniker or nickname. When
communicating via text or email, gang members leave cell phone or email “signatures”
indicating their affiliation with a gang. Hall had reviewed search warrants and text
messages in investigations involving suspected 18th Street gang members.
Hall was familiar with the Hamilton area of Novato, which is most associated with
the West Side Wynos gang. The area in San Rafael most associated with the 18th Street
gang is the Canal district. 18th Street gang members “predominantly live in the San
Rafael area, but they consider themselves to be in control of the entire county.”
Hall explained that hierarchy in gangs is based on respect, and the older a gang
member is and the longer he has been in the gang, the more he is respected. “Respect is
something that gang members obtain and achieve by showing their devotion, their
faithfulness and participation towards” their gang. It is common for older gang members
to recruit younger gang members to commit crimes both because younger gang members,
if caught and prosecuted, could receive a lesser sentence and because it bolster’s the
gang’s membership. Also, 18th Street gang members recruit non-members, i.e.,
“associates,” to assist them in crimes to increase the gang’s membership and because,
with multiple people committing a crime, it is more likely to be successful.
Hall testified that a subset within a larger gang might try to obtain respect from
another smaller subset of the gang. A more dominant subset like the 18th Street gang
could do something to establish themselves as the most dominant and superior clique.
11 This could be symbolized by, for example, the numbers 1 and 8, XV3, XVIII, or
X8.

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Hall was familiar with investigations and contacts in which gang members had felt
disrespected. If members of one gang crossed out another gang’s graffiti or tag, that
would demonstrate dominance and disrespect to the other gang. A gang such as the 18th
Street gang might resort to violence to send a message to another gang. In Hall’s
experience, a member of a Sureño gang might shoot a member of another Sureño subset.
The 18th Street gang has had rivalries with other Sureño cliques, including the Sur Trece
gang and, the West Side Wynos.
18th Street gang members commit criminal acts in public to benefit the 18th Street
gang, Sureño gang members, and criminal street gangs in general. The gangs are
benefitted because a violent act, such as a shooting in public, instills fear in witnesses and
victims and makes them hesitant to come forward with information about gang activity or
to testify against gang members. Gang members commit violent acts like shootings for
several possible reasons: to obtain more respect from gang members in their own or a
rival gang, to show their devotion to their gang, and to advance themselves in the gang.
Gang members are unlikely to inform against each other.
Hall testified that the definition of a criminal street gang is three or more people
who share a common sign or symbol and whose primary activity is committing certain
crimes enumerated in the Penal Code. Based on his training and experience, Hall opined
that the 18th Street Sureño gang is a criminal street gang. Its primary activities include
weapons possession, assault, assault with deadly weapons including firearms, attempted
murder, stabbing, witness intimidation, criminal threats, and some narcotics offenses. He
based this opinion on cases he had personally investigated or assisted with, information
he had learned from other investigators in Marin County, bulletins distributed in the
county regarding gang crimes, and news publications regarding gang crimes occurring in
the county.
Hall believed there are three levels of participation within the 18th Street gang,
including associates, members, and shot callers. A shot caller is someone who has been a
gang member for a considerable period of time, has put in a substantial amount of work
for the benefit for the gang, and provides direction to younger gang members and

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possibly nonmembers. This opinion was based on investigations in which he had
participated and conversations with other law enforcement officers in Marin County.
Hall also knew there were approximately 75 active participants in the 18th Street gang in
Marin County. Hall had learned this from conversations with officers in the crime
suppression unit of the San Rafael Police Department and in the Novato Police
Department’s neighborhood response team who had recently come into contact with gang
members and obtained that information.
Hall was familiar with the shooting at the Safeway in Novato on January 3, 2011.
He was also familiar with Gil and Martinez. He described tattoos on Martinez’s face
around his eyes and lower forehead, which he testified were “18th Street membership
tattoos.” They included one that read “ ‘1 West,’ with an S”; one that read “ ‘Side 8 St,’
with an R,” which, together, meant “West Side 18th Street, San Rafael.” Martinez also
had an “X” and an “8” on the back of each hand, which depicted 18th Street gang
membership. Martinez did not have the tattoos on his face on January 3, 2011. Gil had
“18” tattooed on his stomach.
Hall testified about gang validation reports, which are a tool used to “solidify” the
investigator and prosecutor’s belief that someone is a gang member. Such a report begins
with a summary of the investigation, a brief history of whatever gang the suspect belongs
to, and information about the suspect, including a list of arrests, contacts, and
investigations associated with the suspect that are deemed gang related. Hall prepared
gang validation reports on Gil and Martinez.
Martinez was born in 1994 and his gang moniker was Shadow. There had been
three instances in Novato in which Martinez had been contacted or listed in a crime
report. Police documented contacts with Martinez as a suspected gang member in 2008,
after his parents called the Novato Police Department because they were concerned that
he had carved “XVIII” and “18” into his chest. In preparing his gang validation report on
Martinez, Hall reviewed and took information from police reports stating that in July
2009, Martinez allegedly stole his mother’s vehicle. He was also involved in vehicle
burglaries in Novato and San Rafael and was found with the stolen items in a stolen car

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with David Medina; a BB gun was found nearby. Investigators believed that both
Martinez and Medina were Sureño gang members.
In preparing his gang validation report on Martinez, Hall had also reviewed a
February 2010 probation violation report, from which he learned that a San Rafael police
officer went to Martinez’s residence to conduct a probation search and found a folder
with some abbreviations written on it, including “ ‘EK,’ ” for “ ‘Everybody Killer,”
“187” for murder, and “ ‘WS’ ” for “West Side.” Also found was a blue belt with a
buckle with “X” or “8” on it. Martinez’s probation had included a gang condition that
prohibited him from associating with gang members or possessing gang related clothing.
When questioned, Martinez admitted he had been an 18th Street Sureño member for
about two years. Hall also had reviewed a probation violation report in another case
involving Martinez, which stated that in April 2010, several police officers saw Jimmy
Lucero Tejada, a documented 18th Street gang member, and Martinez walking together
in San Rafael, in violation of Martinez’s gang probation condition. Finally, Hall learned
from another police report that Martinez was suspected of throwing a bottle at a victim in
the Canal district of San Rafael after the victim was pointed out as someone who had
previously cooperated with law enforcement.
In light of all of this information used to prepare the gang validation report on
Martinez, Hall opined that Martinez was an active participant in the 18th Street Sureño
criminal street gang. This opinion was based on Martinez’s documented history within
Marin County, information from law enforcement agencies showing that he had a
continuous association with criminal street gang members, his arrests and police contacts
while in the presence of 18th Street gang members, his admission of gang membership,
his having been contacted in possession of clothing suggestive of 18th Street gang
membership, the tattoos on his hands and face, and his participation in the offenses in the
present matter. Based on the information he had gathered, Hall also believed Martinez
had engaged in conduct consistent with the pattern of criminal activity committed by 18th
Street gang members.

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Hall further opined that Martinez had engaged in conduct that promoted,
furthered, or assisted felonious criminal conduct on the part of members of the 18th
Street gang. Hall based this opinion on the fact that Martinez had been charged in this
case with the commission of a felony in association with other gang members, he had
shown a continuous association with other gang members, he had displayed gang
clothing and tattoos, and had been loyal to 18th Street gang members. In response to a
hypothetical question based on the alleged facts underlying the current offenses, Hall
further testified that this scenario was consistent with promoting, furthering, or assisting
the felonious conduct of an 18th Street gang member. Hall’s opinion was based on his
training and experience with conducting gang investigations, conversations he had had
with gang members, courses he had taken that included teachings about similar gang
crimes, and his knowledge that gang members have a propensity to commit similar
violent acts in public.
Hall believed that three gang members committing the hypothetical offenses
together enhanced their ability to carry out the crime successfully, established possible
alibis, and made it unlikely that they would snitch on each other. In addition, the
significance of the gang members striking out another gang’s tags was that the gang
members were “exerting their strength over the other gang” and “showing that they’re the
ones in charge.” Similarly, all three gang members getting out of a car and surrounding
an occupied car, with one of the gang members shooting into that car, demonstrated that
they were the dominant gang and were not going to tolerate being disrespected.
Hall also prepared a gang validation report for Gil, which included prior contacts,
a suspect profile, Hall’s opinion as to whether Gil was a suspected gang member,
information on the 18th Street gang, and a synopsis of the present case. Gil was born in
1984 and his gang moniker was Smiley.
Based on his review of police arrest reports, Hall ascertained that in 2003, Gil
allegedly threw a bottle at a victim, causing a laceration on the victim’s arm. The victim
reported that Gil had threatened to kill him. Gil was arrested for assault with a deadly
weapon, vandalism, and providing false information to a peace officer. In June 2004,

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police found Gil at a location in the Canal district of San Rafael with several other known
18th Street gang members, in violation of his probation conditions. He was wearing a
shirt that said, “ ‘RIP Creeper’ ” and “ ‘BEST,’ ” which is an abbreviation for Barrio
Eighteenth Street. Also in June 2004, an officer attempted to contact Gil to register him
as a gang member, but Gil refused to participate in the registration process.
Subsequently, officers saw Gil walking with another suspected 18th Street gang member
in the Canal district. When officers attempted to contact them, Gil fled on a bicycle; the
other person was found with a sharp object and arrested.
Then, in 2006, Novato police officers responded to a report of an assault with a
deadly weapon and contacted two victims who reported that they were approached by
two Hispanic males who appeared to be carrying knives. One of the suspects told a
victim he was going to kill the victim before slashing a tire on the victim’s vehicle with
an ice pick and fleeing the scene. Gil was subsequently contacted and the victim
identified Gil in a field lineup as the person who threatened him. During that
investigation, police learned of the “18” tattoo on Gil’s stomach and suspected that he
was an 18th Street gang member.
Hall opined that Gil was an active participant in the 18th Street gang based on his
gang tattoos, his arrest for participation in gang crimes, his consistent association with
18th Street gang members and his being arrested or detained in the presence of other
gang members. For many of the same reasons, Hall opined that Gil’s conduct was part of
a pattern of criminal conduct in which 18th Street gang members engaged. Hall also
believed that Gil’s conduct promoted, furthered, and assisted the felonious conduct of
18th Street gang members. This opinion was based on his continuous association with
known criminal street gang members, his active participation in gang crimes, the fact that
he had gang tattoos on his stomach, and the fact that he has a propensity to commit
violence against suspected rival gang members.
Based on a hypothetical question involving the alleged facts of the present
offenses, Hall opined that such conduct was consistent with conduct engaged in by an
18th Street gang member for the benefit and promotion of the 18th Street gang. This

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opinion was based on “strength in numbers”; committing the crime with other 18th Street
gang members; and the fence with an 18th Street gang tag over a Westside Wynos tag, or
vice versa, which was a sign of disrespect and could cause Gil to feel obligated to ensure
that neither he nor his gang was disrespected.
Hall was familiar with Marcos Lopez, one of the victims in this case. He was a
Sureño gang member in Marin County, who had at one time claimed to be a member of
Richmond Sur-Trece, which is a Sureño gang clique. He had tattoos indicating he was a
Sureño gang member, including “SSL,” which is an abbreviation for South Side Locos
and the number “13.” His gang moniker was Diablo. In addition, Nicole Gilbert, now
deceased, had been a well-respected and high ranking 18th Street gang member. She was
either related to or good friends with Lopez.
Hall was familiar with Justin Sheets in Novato, whose gang moniker was “JLOC.”
JLOC had appeared on the spray painted fence across from the Creekside Deli and was
written over in black. Hall described the three tags visible on that fence, including, first,
blue spray painted “13 WSW” for 13 Sureño West Side Wynos, with the gang member
moniker, “JLOC.” There were also three blue dots, which are an indicator of Sureño
gang membership. On top of that was a red “XIV,” the Roman numeral translation of 14
and “Norte,” which indicated a Norteño gang. Finally, painted in black on top of the
other two tags were “187 XV3 ST,” “666,” and “XV3 18 Street Canal.” Hall explained
that “187 is murder [as stated in the Penal Code], XV3 is 18, three 6’s together is 18, 18th
Street, and Canal,” which referred to where the taggers allegedly were from. Hall
believed these final tags were “the 18th Street gang members declaring that they’re
willing to commit murder against any one of the other two.”
Hall also testified to predicate offenses committed by three 18th Street gang
members. Andres Celis was convicted in May 2010, of assault with a deadly weapon of a
rival gang member and participation in a criminal street gang. Arias Erikson was
convicted in August 2010, of robbery and participation in a criminal street gang. Jimmy
Lucero Tejada, an 18th Street gang member was convicted of assault with a deadly
weapon and participation in a criminal street gang.

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Police obtained search warrants for the cell phone records of phone numbers
associated with Coyle, Gil, and Martinez—who had two phone numbers, including one
with a 707 area code—during the relevant timeframe.
Jim Cook, a wireless expert, had analyzed call detail records associated with, inter
alia, appellants and Rodriguez, and the locations of those phones around the time of the
Safeway shooting. Their cell phone numbers were in communication with each other
before the shooting. The cell phone activity was located in the vicinity of the Bay Vista
apartments and the Safeway in Novato.
Cook also testified about text messages to and from the numbers associated with
appellants after the shooting.12 A translated text from Gil-Tzun to Gil stated, “ ‘Don’t go
to the house,’ ” to which Gil responded, “ ‘Okay’ ” and “ ‘Tell them you do not know
anything[!]’ ” Gil-Tzun also sent a text to Gil that police had arrested Coyle. Martinez
and Rodriguez texted each other after the shooting, with messages including, “ ‘Hey fool,
we need to get to Richmond . . . ,’ ” “ ‘Smiley’s girl got arrested’ ” and “ ‘She might
snitch us out . . . .’ ”
Marta Selvi, an expert in translating between Spanish and English, testified that a
text message from Martinez’s phone stated, “I have a three-eight semi.” Selvi believed
the Spanish word in the text, “semia,” was an abbreviation, just like the English word,
“semi.” Selvi acknowledged the Spanish word, “semilla,” means “seed.”
Gil’s Defense Case
Rahn Minagawa, a clinical and forensic psychologist, testified for Gil as an expert
on criminal street gang activities. Minagawa had reviewed Hall’s gang validation report
on Gil, and did not believe the prior incidents described in the report from 2003 and 2004
were sufficient to establish that he was a gang member, although his presence in 2004 at
a gathering for a deceased gang member established that he was associating with gang
12 Cook testified that the text message document on which his testimony was
based and which was admitted into evidence was based on Central Time, rather than
Pacific Time. Hence, two hours had to be subtracted from the time each text message
was listed as having been sent.

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members. Based on Hall’s report, Minagawa found that “from July 2004 until January
2011, there doesn’t appear to be anything that the police or law enforcement indicated
that he was a gang member or engaged in gang activities. . . .” A person who has not had
any contact with gang culture for over six years would not be considered a “shot caller,”
which Minagawa described as a more experienced gangster who is looked up to by
younger gang members and who can direct the activities of the gang.
Based on a hypothetical question about Gil’s family and work responsibilities,
Minagawa opined, based on his research and experience, that individuals involved with
gangs tend to age or “socialize out” of gang culture. The absence of gang related
clothing, social media posts, or other indicia of Gil’s gang involvement would support
Minagawa’s opinion that he was aging out of the gang. Based on the information in
Hall’s report, Minagawa did not believe Gil was an active 18th Street gang member.
Minagawa also testified that he had reviewed text messages between a person
known as Mousey (Rodriguez) and a person who identified himself as Sleepy (apparently
Lopez) from the West Side Wynos. The communications appeared to involve a personal
dispute regarding disrespect of a woman.
Gil testified that he was born in Yucatan, Mexico in 1984. His first language was
Mayan and he learned Spanish at age 10. He arrived in Marin County in 2000, at age 16.
Gil met Coyle when he was 16 or 17, and she was about 14. They were briefly friends
and then began a sexual relationship, which lasted about three years. Sometime before
2008, they began dating again and Gil moved in with Coyle to help take care of her
daughter, who was physically disabled.
Gil acquired the “18” tattoo on his stomach when he was 16 years old. He had
recently arrived in the United States and was living in the Canal area of San Rafael. He
began to feel “he was part of” the people who hung out in the area, and decided to get the
tattoo on his own. Gil was never jumped into a gang, but considered himself a gang
member when he was 16 and 17. When gang members found out about his tattoo, a
group of six members said he should not have gotten it without letting them know. They

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disciplined him for 18 seconds, and then told him he had to do a job for them, which he
did not do.
By the time Gil and Coyle got together in approximately 2008, Coyle told him she
had already moved away from gangsters, and between 2008 and 2010, Gil attended no
gang meetings. In August 2010, Coyle learned about Gil’s sexual relationship with
another woman named Jasmine by looking at a text message on his phone. Coyle and Gil
got into a verbal fight about the relationship.
On December 31, 2010, Gil worked until 5:00 p.m. at his landscaping job. He did
not drive, so Coyle generally picked him up from work and drove him other places in her
car. That evening, he and Coyle ate dinner and then he went to spend the night with
Jasmine in a hotel. The next morning, New Years Day, Jasmine drove them to
Richmond, where they had lunch. After lunch, they went to a park and Gil drank nine
beers. Jasmine then drove to the Canal area of San Rafael, where they took a walk. Gil
was still drinking. After their walk, around 6:00 or 6:30 p.m., they stopped at the
Creekside Deli so Gil could buy another beer. He noticed that the fence across the street
from the deli, which always had gang graffiti painted on it, was painted with the number
“187.”
Jasmine then dropped Gil off at his house, where Coyle was waiting for him. Gil
learned that Coyle’s daughter was with Coyle’s mother in the Hamilton area, and he
wanted to go see her. Coyle therefore drove him to her mother’s house, but the lights
were off and her daughter was sleeping. After that, as Coyle was driving in the Bay Vista
area, Gil saw a friend, Justin Sheets, and asked Coyle to stop the car so he could say hi.
Gil got out of Coyle’s Prius and drank a beer with Sheets while Coyle waited in the car.
After about 10 minutes, as Gil was getting back into Coyle’s car, he saw some people
arriving in a black BMW. They included Luis Rodriguez, known as Mousey, whom he
had met a couple of times in the prior few days through Martinez; Martinez; and Brian
Herrera. Gil said hello to them, got back in Coyle’s car, and told Coyle he wanted to buy
a beer. Coyle therefore drove to a 7-Eleven store in Novato and went inside to buy the
beer. While she was in the store, the black BMW arrived; Martinez and Herrera were in

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the car, but he did not see Rodriguez. Gil talked to Martinez until Coyle returned to the
car. She then drove him to Pioneer Park in Novato to see his friend Ivan, who was with a
couple of friends.
After a short time at the park, Gil told Coyle he wanted to go see his daughter who
was living in the Canal district of San Rafael. Once there, Coyle parked and he got out of
the car. When he saw the lights were out in the apartment, he left. As he returned to
Coyle’s car, he saw Martinez, Herrera, Rodriguez, Ivan, and Ivan’s two friends, all of
whom lived nearby. They talked for a little while and then went to a hill near Woodland
to drink. Martinez and Herrera did not join them because Martinez was on probation and
had to be home by 10:00 p.m. Rodriguez rode to Woodland in Coyle’s car with Gil and
Coyle. Coyle followed Ivan, who drove the other friends in a blue Corolla, stopping on
the way to Woodland to pick up a friend, Jeffrey Olmstead or “Gato,” who owed Gil
money. Once in Woodland, they listened to music, drank tequila, and smoked marijuana
for an hour and a half or two hours. Rodriguez also consumed hallucinogenic
mushrooms and offered some to Coyle, who primarily stayed in the car. Coyle asked Gil
for permission to eat the mushrooms. He said okay, and saw her chewing three or four of
them.
While in Woodland, around 11:00 or 11:30 p.m., Coyle began texting Gil to say
they should go home because she had to work the next day. Eventually, Gil, Rodriguez,
and Olmstead got into the car and Gil asked Coyle to drop Rodriguez and Olmstead off in
the Hamilton area, which she agreed to do. He also asked her if they could stop and buy
a beer on the way home. Coyle then followed the blue Corolla that Ivan was driving. Gil
was in the front passenger seat of the Prius, next to Coyle; Rodriguez was in the rear
passenger seat, and Olmstead sat in the middle, between a child’s car seat and Rodriguez.
Gil was so drunk that he fell asleep during the drive from Woodland to Hamilton.
Gil woke up when he heard Coyle screaming. He did not know where they were,
nor did he hear any shots or see anyone get out of the rear of the car. He saw someone
open the car door and get in; it was Rodriguez, who then exited the car again and brought
Olmstead back inside. Coyle was screaming and crying, saying to Rodriguez, “What the

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fuck are you doing?” and “Get the fuck out of my car.” Gil turned around, saw
Rodriguez pull out a gun, point it at Coyle, and say, “Shut the fuck up. Just drive.” Gil
said, “Don’t talk to her like that,” and Rodriguez pointed the gun at Gil’s chest and said,
“You too, shut the fuck up. I have one more bullet for you.” Coyle was screaming and
crying. She said, “What about the baby? What about the baby?” She also said to
Rodriguez, “You fucked me really hard.” Gil told her to drive, which she did.
As they left the Safeway parking lot, Rodriguez told Coyle to drive him to Santa
Rosa, but Gil told him not to do that, to let Coyle go because she had a daughter. Gil said
he would stay with Rodriguez instead. Rodriguez told Coyle that if she said anything, he
would kill her and her family. Gil convinced Rodriguez to let Coyle go and she dropped
the three men off near the San Marin freeway exit. As Rodriguez was getting out of the
car, he threatened to shoot Coyle, her grandmother, and her sister if she told anyone he
“shot these people.”
Gil testified that he never saw a yellow handled hammer in Coyle’s car and he
never got out of the car at Safeway. He was sleeping when the shooting occurred.
After Coyle dropped off Gil, Rodriguez, and Olmstead, she texted Gil, “I love you,
no matter what.” He responded to her text and then asked Rodriguez what he had done.
Rodriguez said he had shot his girlfriend Nicole Gilbert “because she was cheating on
him” and he was jealous. Rodriguez borrowed Gil’s phone because his was dead. As
Rodriguez made a phone call on Gil’s phone, Olmstead and Gil walked away. Gil
walked to downtown Novato, where he took a bus to San Rafael. From there, he took
another bus to Richmond. He never got his phone back and never saw Rodriguez again.
He learned that Coyle had been arrested when he was watching television news. He
called Rodriguez and his brother Gil-Tzun. Gil subsequently went to see Gil-Tzun, who
said that Coyle had been arrested and Nicole Gilbert had threatened Gil-Tzun when he
went to court to see Coyle.
Gil told his brother to go see Coyle in jail and gave him a note to give to her,
directing her to tell the truth. Coyle responded with a message that she could not tell the
truth because her family was going to get killed. She told Gil to tell the truth. He sent

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another message to Coyle through his brother, telling her to blame someone else,
specifically, Martinez. He said this because he was afraid that Rodriguez would hurt his
or Coyle’s family if they told the truth. Coyle responded, “Okay.” Since the shooting,
Gil had talked with Rodriguez, who said that if Gil or Coyle told the police he had done
the shooting, he would kill their families.
Subsequently, Gil called the Novato police, saying he wanted to report a shooting
in Novato, but was told the detective was not available and to call back. Gil then called
the San Rafael police and said he wanted to report a shooting in Hamilton, but was told
he had to call the Novato Police Department. Gil called the Novato Police Department
again and was given the phone number of a detective, but he did not call the detective
because he realized the police were looking for him, after seeing it in the newspaper.
After the shooting, Gil continued working in Marin County and was living in
Richmond until February 13, 2010, when he went to visit his daughter in Rohnert Park.
After he arrived at her house, the police came and arrested him. While he was in custody,
he and Coyle exchanged numerous letters. He wrote to her that on the night of the
shooting, he had been unconscious and did not know what had happened.
Gil testified that the lid found in Coyle’s car was not for spray paint, but was a lid
to a product he used to clean the car. The black beanie found in the car was his, but he
was not wearing it on the night of the shooting.13 That night, he was wearing a black
dress shirt and blue jeans, with no jacket or sweatshirt. He was also clean shaven.
Rodriguez was wearing a gray hoodie that night. Also, Gil saw Martinez hand his phone
to Rodriguez when they were in the Canal district earlier that evening. Gil further
testified that he did not own any gang clothing, photographs, or memorabilia.
On cross-examination, Gil acknowledged that he was convicted of a felony,
making a criminal threat against the mother of his child on May 11, 2011, while he was
13 The parties stipulated at trial that the black beanie belonged to Gil and that the
major portion of the DNA mixture on the beanie had the same DNA profile as Gil, but
not Martinez or Coyle.

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in jail in the present matter. He also was convicted of another felony, unlawful sexual
intercourse with a minor, on May 27, 2011. He had committed that crime previously, at
age 19.
Gil testified that Martinez had told Gil that he was an 18th Street gang member.
Gil had considered Martinez a friend and a good person. Gil did not know whether
Rodriguez was an 18th Street gang member. Gil acknowledged that people called him
Smiley, but denied that it was his gang moniker. He also denied being a gang leader or
even a gang member.
Gil testified that Olmstead had died before trial and he had heard that Nicole
Gilbert was also dead. Coyle’s testimony regarding what happened just before and
during the Safeway shooting was a lie. She lied because she was scared. When Gil was
arrested, he told the arresting officer that he was in Mexico at the time of the shooting.
Mary Jo Eid testified that she was in the Safeway parking lot at the time of the
shooting. She was driving out of the parking lot when she heard a loud boom and then
what sounded like three or four gunshots. She looked over her shoulder and saw
someone standing near the passenger side back door of a white car, looking inside the
car. She also saw another person running. The person standing by the car was dressed in
blue jeans, tennis shoes, and a gray sweatshirt or jacket and appeared to be holding
something in his right hand. She also saw two people rushing to get into a Blue Element
automobile, but she was not sure they were the same people she had seen near the white
car. Eid saw a male who was screaming, “Call 911. They just killed my brother.” There
was a girl with him.
Eid saw only two people near the white car. Police officers interviewed her
approximately 15 minutes after the incident. She never told an officer that she saw three
people, and the officer was mistaken when he wrote in his report that she said she saw
three people.
Shedrick Williams, an employee at the Novato Safeway testified that he had
shown police a video clip from the store video surveillance that was recorded on the night

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of the shooting. When shown a video clip at trial, Williams testified that he only saw one
person approach the white car.
Nicholas Berg, who was a Novato police officer at the time of the shooting,
testified that he interviewed Shane shortly after the shooting. Shane said he heard several
gunshots and observed a person approach the white car from the driver’s side and tap a
hammer on the window. Shane exited the car and chased after the person, but returned to
the car when he heard that his brother had been shot. Shane described the person who
had tapped on the window with a hammer as a Hispanic or possibly Asian male adult in
his mid-20s, with a mustache and wearing a dark colored sweatshirt.
Berg viewed at least two Safeway surveillance videos that night, three or four
times each. He saw two subjects exit the gray Prius and point a weapon, and then saw
several muzzle flashes. He then observed one of the subjects run north through the
parking lot. Berg acknowledged that, in his report, he stated that both subjects fled on
foot north through the parking lot. One of them was wearing a dark colored shirt and the
other was wearing a lighter colored shirt.
Adam Raskin, Gil’s private investigator, testified that he had inspected the
Safeway parking lot many times since the shooting. Raskin took a number of
photographs of the scene, which showed a double shadow effect due to cross lighting in
the parking lot. Raskin owned a 2005 Prius, which he parked at the Safeway as he
believed Coyle’s Prius had been parked, near a small compact car with a larger SUV to
its left. Raskin took photographs from the driver’s seat of his Prius, looking out the rear
window at the angle from which he believed Coyle would have looked. From that angle,
Raskin was unable to see if a person was standing by the driver’s side window of the
small car. Raskin could not say if the view from which he took the photographs was a
fair and accurate depiction of what Coyle testified she saw through her car window.
Raskin also took a still photograph of the surveillance video showing a person he
believed to be the shooter. The person was wearing a gray or light colored hooded
sweatshirt with the left arm leaning in towards the car.

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Simon Richard Estrada Oltman testified that he lived near the Creekside Deli. On
the afternoon of January 2, 2011, he noticed some gang graffiti on the fence across the
street from the deli and took a picture of it. The picture showed a red “ ‘XIV’ ” and
“ ‘NORTE’ ” painted over a blue set of numbers. Subsequently, “probably” about a
couple of hours before the shooting, Oltman was driving home and saw a third tag in
black spray paint, over the others, which read, “ ‘187 XV3 Street.’ ”
Smyrna Sanchez testified that she met Gil in February 2008, when they worked
together at a retail store. Sanchez had two brothers who were members of the 18th Street
gang. Sanchez never saw Gil dress like a gang member, display gang signs, or hang out
with gang members. Nor did he ever tell her he was a gang member.
Susan Ragazzone testified that she and her husband, who is a church pastor, met
Gil in 2000, when he was 16 years old. At that time, Gil visited her three daughters at the
Ragazzone home in the Canal district three or four times a week. She saw an “18” tattoo
on his stomach when he was 17 years old. During the time she knew him, Ragazzone
never saw Gil dressed as a gangster or in possession of gang paraphernalia. She did not
believe he was a gang member when she knew him. On cross-examination, Ragazzone
testified that she was not aware that Gil had been convicted in May 2011, of unlawful sex
with a minor and making a criminal threat.
Martinez’s Defense Case
Lilia Carreon, Martinez’s mother, testified that in late 2010 and early 2011, she
was living in San Rafael with her family, including Martinez. The entire family slept in
the living room of the apartment. On January 2, 2011, Martinez arrived home before
10:00 p.m. In December 2010 and January 2011, Martinez never wore gray colored
clothing, only black. He was right handed. A photograph taken at the hospital in April
2011, just after Carreon had given birth to twins, showed that Martinez did not have a
tattoo on his face at that time.
Silverio Avila, Martinez’s stepfather, testified that on January 2, 2011, Martinez
came home by 10:00 p.m., as he was required to do during that time period. The family
then went to bed, but Martinez went outside just before 1:00 a.m., wearing a black shirt

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and black shorts. Avila went back to sleep but later that morning, around 7:00 a.m., he
saw Martinez in bed. Martinez always dressed in black in December 2010 and January
2011. He did not have a light colored sweater or sweatshirt at that time.
Erick Menendez, who rented a room from Martinez’s family, testified that on
January 2, 2011, he saw Martinez on his bed using his cell phone about 11:30 p.m.
Jocelyn L. testified that Martinez is her daughter’s father. Jocelyn went to middle
school and high school with Rodriguez. She was familiar with his voice and knew that
he was left handed. Martinez regularly called and texted Jocelyn from two different cell
phone numbers. On January 2, 2011, Jocelyn texted Martinez’s 707 phone number to tell
him she was pregnant. Later, at 11:48 and 11:49 p.m., she received texts from the 707
cell phone number asking how she knew she was pregnant. At 11:52 p.m. she received a
phone call from Martinez’s 707 cell phone number. She recognized the caller as
Rodriguez and they had a short conversation in which Rodriguez asked if Martinez was
with her and Lopez said no. Rodriguez called again just after the first call, but Lopez
hung up. Seconds after the second phone call, Jocelyn texted the 707 phone number that
she could not talk “ryte now.” According to Jocelyn, she sent this message when she
realized that Rodriguez had Martinez’s phone.14 There were also several texts sent
between the 707 number and her number between 1:22 and 2:19 a.m. on January 3.
Jocelyn testified that Martinez’s gang moniker was Shadow. She did not know if
he had any gang friends or if he was friends with Gil.
Brian Herrera was unavailable as a witness and his testimony from the first trial
was read to the jury. Herrera was 17 years old at the time of the first trial and considered
Martinez a good friend. He testified that on January 2, 2011, he picked Martinez up in a
black BMW and drove to Rodriguez’s house in San Rafael. Herrera, Martinez, and
Rodriguez then drove to Nicole Gilbert’s home in Hamilton. When they arrived at the
Bay Vista apartments, there was a gang get-together of more than 10 people taking place
14 When asked whether Rodriguez would be talking to her about her pregnancy,
Jocelyn said he “was going along with it, I guess. . . .”

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at Gilbert’s home. Rodriguez and Gilbert got into an argument. At Martinez’s
suggestion, Herrera and Martinez drove to the Canal district. Smiley (identified as Gil)
and Rodriguez arrived five minutes later in a small white car driven by a white woman.
At some point, Rodriguez approached Martinez and asked to borrow his phone because
Rodriguez’s phone was dying, and Martinez gave Rodriguez a phone. Herrera then
dropped Martinez off at his home in San Rafael because he was on a curfew. It was
between 9:30 and 10:00 p.m.
Herrera testified that Martinez’s gang moniker was Shadow. Herrera did not
belong to a gang.
Martinez, who was 19 years old at the time of trial and 16 years old on January 2,
2011, testified that he was arrested in this case on May 26, 2011. He was a member of
the 18th Street gang from the west side of Santa Rosa, not San Rafael. He started
associating with the gang when he was eight or nine years old and was “godfathered” into
the gang through an older cousin. He was beat up by members of the 18th Street gang
from San Rafael when he was 12, after they mistook him for a Norteño gang member.
That experience turned him off to that gang, but he later began hanging out with people
associated with Canal Street and the San Rafael 18th Street gang, including at school, at
the mall, playing sports together, and going to birthday parties and weddings. Martinez
got the “X” and “8” tattoos on his hands when he was 15. He got the tattoos on his face
around April 28, 2011, to show that he was not just an 18th Street gang member, but a
member from the west side of Santa Rosa.
Martinez testified that he knew Lopez, one of the shooting victims, from when he
was younger and would see Lopez at the mall. He denied shooting either Lopez or Elias
on January 3, 2011. Regarding whether different Sureño cliques fight, Martinez
explained that “anybody that’s a Sureño gang member cannot attack each other” and may
be disciplined for doing so.
The first time Martinez was on probation, it was for taking his mother’s car, which
she reported stolen. He was never previously charged with a violent crime and, contrary
to Hall’s testimony, he denied throwing a bottle at anyone.

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On December 31, 2010, Martinez attended a barbecue at Coyle’s home in Novato.
Coyle, her daughter, Gil, Rodriguez, and David Medina were also there. On January 1,
2011, Brian Herrera slept over at Martinez’s house.
On the afternoon of January 2, 2011, Martinez texted “ ‘Tengo una semia de trez
ocho’ ” to a person named Pancho Ramirez. According to Martinez, the text meant, “ ‘I
have one seed of a .38’ ”; the Spanish word for seed is “semilla.” Martinez was referring
to having a shell casing, not a live round. When Ramirez texted, “ ‘cuanto,’ ” which
could have meant “how much” or “how many,” Martinez responded “ ‘I only have one, a
homie gave it to me.’ ” Ramirez then texted, “ ‘Let me have it.’ ” If he had been
referring to a semi-automatic pistol in the text, Martinez would have written,
“semiautomatica,” not “semia.”
Around 5:00 or 6:00 p.m. on January 2, Herrera picked Martinez up from Jocelyn
L.’s house in a black BMW and they went to pick up Rodriguez. Herrera then drove to
the Hamilton area around 7:00 p.m. They stopped in the Bay Vista area within Hamilton
and went to the home of Nicole Gilbert, who was Rodriguez’s girlfriend at the time.15
Gil was already there, talking to Justin Sheets, as well as a number of other people. After
about 40 minutes, Martinez and Herrera went to a 7-Eleven. Martinez saw Rodriguez
there in a car with Coyle and Gil. Gil and Martinez had had several phone and text
conversations, as Martinez attempted to find out where Gil was. That was how Martinez
ended up at the 7-Eleven, where he and Gil talked through the car windows. Martinez
told Gil that he and Herrera were heading to the “400 buildings” on Canal Street in the
Canal district of San Rafael.
When Martinez and Herrera arrived on Canal Street around 9:00 p.m., they parked
near the 400 buildings and about 20 minutes later, Gil and Rodriguez arrived together
with Coyle in Coyle’s Prius. They socialized in that area for 20 to 25 minutes until
15 Early that morning, Martinez had texted Rodriguez that Gilbert had referred to
Rodriguez on her MySpace page. She had written about being with another guy and not
being satisfied with Rodriguez, calling him “a bitch or biggest faggot.”

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Martinez got a voicemail from his mother about 9:40 p.m., reminding him that it was
getting close to his curfew. Martinez told Gil and Rodriguez that he and Herrera were
leaving, and Rodriguez asked to borrow Martinez’s cell phone because his was about to
die. Martinez gave him one of his two phones, the one with a 707 area code. Martinez
never went to the Woodland location Coyle had described in her testimony.
Martinez arrived home at 9:55 p.m. His mother, stepfather, and sister were there,
and they all went to bed. Later, he saw one of his roommates, Erick Menendez, walk out
of the bedroom and into the bathroom. At 12:42 a.m., he called Jocelyn, but she did not
answer. At 12:57 a.m., he went outside and called her again. While he was outside on
the patio, around 1:05 a.m., he heard a car and saw Rodriguez outside, wearing a gray
hooded sweatshirt. Martinez went down the stairs to meet Rodriguez, who returned his
cell phone. Rodriguez, who had bloodshot eyes, smelled like alcohol, and did not have
his balance, thanked Martinez for letting him borrow the phone. When Martinez asked
him “what the fuck he was doing here,” Rodriguez responded, “ ‘I shot somebody.’ ”
Martinez said, “ ‘You’re stupid,’ ” and Rodriguez then said, “ ‘I just shot some fools.’ ”
Martinez again said, “ ‘You’re stupid,’ ” and asked, “ ‘Did any of you get caught?’ ”
Martinez said, “ ‘No, but I think someone followed us.’ ” Martinez again said, “ ‘You’re
stupid,’ ” and told Rodriguez “to go home and text me or call me whenever he got there
to see if he was all right.” Later that morning, Martinez texted Jocelyn and his then
girlfriend, Michelle M.
On January 3, 2011, after 9:00 a.m., Gil called Martinez and told him that Coyle
had been arrested. Martinez then sent a text to Rodriguez, which said, “ ‘Ey foo, we need
to get to Richmond.’ ” Rodriguez texted back, “ ‘Why?’ ” and Martinez texted, “
‘Smiley’s girl got arrested.’ ” Later, when Rodriguez texted, “ ‘My mom don’t let me
out’ ” because he had come home late the day before, Martinez responded, “ ‘U have to
go foo.’ ” After Martinez questioned him further about whether he wanted to go to
Richmond, Rodriguez texted, “ ‘I do wanna go homie but my mom.’ ” After a phone call
between Martinez and Rodriguez, Martinez texted, “ ‘She might snitch us out.’ ”
Martinez explained at trial that he was talking about Rodriguez’s mother when he wrote

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the text, and meant that he was on probation and did not want to get a violation for being
with another gang member. He was not referring to Coyle in the text.
Later that day, Martinez met up with Rodriguez at the transit center. Rodriguez
told Martinez that Coyle had been present when he shot people, and Martinez responded,
“ ‘That’s your problem. I don’t want to have nothing to do with it.’ ” Rodriguez said he
was leaving for Mexico. Martinez then went to the house of his girlfriend, Michelle M.,
in Novato.
On January 6, 2011, Martinez texted David Medina that he (Martinez) needed to
get out of his house because the “Pigs” “might come.” He also texted, “ ‘Can u come
thru,’ ” “ ‘I’ll hit u up wen am in a safe place.’ ” Medina responded, “ ‘Wow, I bet you
trippen. Nobody knows shit, so they ain’t gonna do shit. . . .” Martinez testified that
when he texted that he had to get out of his house, it was because he had heard that
probation officers were searching probationers and asking them about the shooting.
Martinez denied being in Coyle’s car on the night of the shooting. He also denied
shooting a gun at anyone in the Safeway parking lot or tapping a hammer on the white
car parked there.
On cross-examination, Martinez testified that he had known Gil for six years and
Rodriguez for seven or eight years. Martinez believed Gil’s tattoo was from an 18th
Street gang, but it did not specifically say which clique. Rodriguez was an 18th Street
Canal gang member and Martinez was an active 18th Street gang member and was on
probation. He testified that he felt loyalty towards his fellow gang members.
Martinez was arrested on May 26, 2011. Martinez acknowledged that, when
interviewed by Detective Jenner, he told Jenner that Gil was in the same gang he was in,
the 18th Street gang. Although Martinez had gotten tattoos on his face after the shooting,
that did not give him a higher rank within the gang.
Martinez was aware that Rodriguez had a personal dispute with Lopez, known as
Sleepy, from the West Side Wynos. On the night of the shooting, Lopez was not at the
Bay Vista apartments when Martinez arrived. The only dispute he saw was between
Rodriguez and Gilbert. He would not consider a dispute between two Sureño gang

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members over the disrespect of a woman a crime for the benefit of a gang. He would
consider it a personal dispute.
Rebuttal
Jenner testified that he interviewed Martinez the day Martinez was arrested.
Martinez said he had no personal knowledge of the shooting and had not been in contact
with Gil since the previous year or with Rodriguez since two years earlier. Martinez
indicated that Gil and Rodriguez were “18” or 18th Street gang members. When Jenner
said Martinez had been identified as the shooter in the incident at Safeway, Martinez did
not seem “overly surprised or shocked.” Martinez did not mention that he had given his
cell phone to Rodriguez, that he was driven in a black BMW by Brian Herrera, that he
had been home by 10:00 p.m. on the night of the shooting, or that Rodriguez had come to
Martinez’s house in the early morning to return Martinez’s phone and had admitted he
had shot some people.
Jenner had had several previous contacts with Justin Sheets, a white male who
went by the moniker JLOC and was a member of the West Side Wynos, a Sureño subset.
Jeffery Olmstead, an 18th Street gang member known as Gato, was never considered a
suspect or witness in this case.
An arrest warrant was issued for Rodriguez and Jenner attempted to find him.
Based on Facebook login information, Jenner learned that Rodriguez was in Mexico.
DISCUSSION
I. Double Jeopardy and Severance
Gil contends retrial of the attempted murder and the gang offense counts violated
the double jeopardy provisions in the United States and California Constitutions because
those counts were based on the same evidence as the assault with a deadly weapon count,
as to which the trial court had previously granted a motion for acquittal. Gil further
contends that even if double jeopardy principles were not violated, the trial court erred
when it failed to either sever his trial from that of Martinez or otherwise exclude evidence
related to the hammer wielding incident.

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A. Trial Court Background
Gil was initially charged in count 5 with assault with a deadly weapon (§ 245,
subd. (a)(1)) against Rhea Tomita, who had been seated in the center rear seat of the
white car. After both parties had rested during the first trial, Gil moved for a judgment of
acquittal as to counts 1, 2, 5, and 6, pursuant to section 1181. The court granted the
motion as to count 5 only, the assault charge, and entered a judgment of acquittal on that
charge. The court based its ruling on the insufficiency of the evidence to sustain a
conviction, explaining: “Even if we were to assume that [Coyle] was referring to the left
rear window” when she testified that Gil struck the driver’s side window with a hammer,
“the question then becomes whether or not his striking that left rear window at the top left
corner constitutes an assault upon the person seated in the center of the back seat. . . . [¶]
There is no reason to conclude that even if Gil struck the left . . . back window of the car,
that action would result in the application of force upon Tomita. . . .”
The court further found, however, with respect to counts 1 and 2, the two
attempted murder charges, that “the evidence is substantial to sustain a conviction[;]
corroboration is found in the text messages and GPS settings on his phone, as well as the
testimony of the witness Coyle.” The court concluded the evidence was also sufficient to
sustain a conviction on count 6, street gang activity, based on his gang participation. In
denying the motion as to these other three counts, the court also relied on the testimony
of the occupants of the white car, who described “the person with the hammer as looking
part Mexican, part Asian and wearing a beanie, which by stipulation was connected to
Gil, the physical description as being fit and skinny is consistent with his physical
description. So there is sufficient corroboration that he was the one who was at the scene
with the hammer. . . .”
Before the second trial, Gil moved to sever his trial from that of Martinez. He also
sought to exclude any testimony that he wielded the yellow-handled hammer and struck
the victims’ car window, arguing that admission of such evidence would violate the
prohibition against double jeopardy due to his prior acquittal of the assault count.

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At the hearing on the motion, after defense counsel argued that all facts that would
support the assault charge must be excluded, the prosecutor noted that when the court
granted the motion to acquit, it had done so only as to whether Gil “used the hammer
with the yellow handle when he approached the car to assault that particular victim[;] the
court never ruled that [Gil] was not a gang member using that hammer as part of his
participation in this crime under the theories that I am alleging in this case. [¶] If the
court had done that, then he would not have denied the motion as to count 1 and count 2,
which was an attempted murder, because he, Gil, is liable and subject to liability . . . on
the theory of aiding and abetting or natural and probable consequences, his conduct in
engaging or participating in that or taking the first advancement, where he went to the
driver’s side and hit the window, which caused everybody in the car to look to their left.
When they looked to their left, that’s when, as we allege, [Martinez] fired into the car.
So it happened concurrently. . . .”
The court denied Gil’s motion, explaining that the determination of the court in the
prior trial that Gil did not commit the crime of assault with a deadly weapon against
Tomita only meant that there was insufficient evidence that he wielded the hammer with
the intent to assault her, “as opposed to simply break the window, to startle, to open up a
clear view of who was in the car or some other reason.” The court therefore denied the
motion for severance and the motion to exclude testimony related to Gil wielding the
hammer at the time of the alleged offenses.
B. Legal Analysis
1. Double Jeopardy
Gil now argues that, “inasmuch as the facts surrounding the assault with a deadly
weapon against Tomita are the same as those supporting the prosecutor’s theory that [Gil]
acted as an aider and abettor, the correct motion would have been to dismiss all charges
against [Gil] under well-established double jeopardy principles. [Citation.]”16
16 Gil asserts that we may review this issue, notwithstanding his failure to argue in
the trial court that all counts should be dismissed on double jeopardy grounds, for several

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The Fifth Amendment prohibits any person from being tried twice for the same
offense. (U.S. Const., 5th Amend.; accord, Cal. Const., art. I, § 15.) Accordingly, with
respect to the trial court’s judgment of acquittal under section 1118.1 on count 5, assault
with a deadly weapon against Tomita, double jeopardy principles precluded retrial of that
count. (See People v. Trevino (1985) 39 Cal.3d 667, 698-699, overruled on another
ground in People v. Johnson (1989) 47 Cal.3d 1194, 1219.)
In arguing that all counts should have been dismissed on double jeopardy grounds
“as a result of the trial court’s judgment of acquittal as to the hammer-wielding incident,”
Gil primarily relies on the United States Supreme Court’s decision in Yeager v. United
States (2009) 557 U.S. 110 (Yeager). The court in Yeager first recounted the facts and
analysis in Ashe v. Swenson (1970) 397 U.S. 436, 443, 445 (Ashe): “In Ashe, we squarely
held that the Double Jeopardy Clause precludes the Government from relitigating any
issue that was necessarily decided by a jury’s acquittal in a prior trial. In that case, six
poker players were robbed by a group of masked men. Ashe was charged with—and
acquitted of—robbing Donald Knight, one of the six players. The State sought to retry
Ashe for the robbery of another poker player only weeks after the first jury had acquitted
him. The second prosecution was successful: Facing ‘substantially stronger’ testimony
from ‘witnesses [who] were for the most part the same,’ [citation], Ashe was convicted
and sentenced to a 35–year prison term. We concluded that the subsequent prosecution
was constitutionally prohibited. Because the only contested issue at the first trial was
whether Ashe was one of the robbers, we held that the jury’s verdict of acquittal
collaterally estopped the State from trying him for robbing a different player during the
same criminal episode. [Citation.] We explained that ‘when an issue of ultimate fact has
reasons: because the issue raises purely a question of law, California courts have held
that constitutional issues can be raised for the first time on appeal in various
circumstances, the court’s ruling showed that any request for a dismissal of all counts
would have been futile, and such review would foreclose an ineffective assistance of
counsel claim. Assuming for purposes of argument that the issue is not forfeited, as we
shall explain, we nonetheless conclude it is without merit.

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once been determined by a valid and final judgment’ of acquittal, it ‘cannot again be
litigated’ in a second trial for a separate offense. [Citation.] To decipher what a jury has
necessarily decided, we held that courts should ‘examine the record of a prior proceeding,
taking into account the pleadings, evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded its verdict upon an issue other than
that which the defendant seeks to foreclose from consideration.’ [Citation.] We
explained that the inquiry ‘must be set in a practical frame and viewed with an eye to all
the circumstances of the proceedings.’ [Citations.]” (Yeager, at pp. 119-120, quoting
Ashe, at pp. 439-440, 443-444, 446, fn. omitted.)
The court in Yeager first noted that the facts in that case were distinguishable from
those in Ashe in that the trial involved multiple counts, some of which resulted in
acquittal and some in a mistrial. But the court found that “for double jeopardy purposes,
the jury’s inability to reach a verdict on [certain] counts was a nonevent” that was entitled
to no weight in resolving the double jeopardy question. (Yeager, supra, 557 U.S. at
p. 120.) The court then applied Ashe’s reasoning to the facts of the case before it, in
which the federal government alleged that the petitioner, in concert with other Enron
executives, had purposefully deceived the public about the virtues of a fiber-optic
telecommunications system in order to inflate the value of Enron’s stock and thereby
enrich himself. (Yeager, at pp. 112-114.) The jury acquitted the petitioner of securities
and wire fraud counts, but failed to reach a verdict on insider trading counts. (Id. at
p. 115.) The Supreme Court held that retrial on the deadlocked counts was prohibited
under double jeopardy principles since, “if the possession of insider information was a
critical issue of ultimate fact in all of the charges against petitioner, a jury verdict that
necessarily decided that issue in his favor protects him from prosecution for any charge
for which that is an essential element.” (Id. at p. 123.)
In the present case, Gil asserts that “[t]he hammering incident was an integral part
of the State’s theory that [Gil] initiated the shooting incident by distracting the passengers
with his tapping or hammering on the window. [Citation.] Under the federal precedents
discussed above, the issue of the hammer wielding was decided in [Gil’s] favor when the

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trial court ordered a judgment of acquittal as to the assault with a deadly weapon.” We
disagree.
Unlike Yeager, Gil cannot show that the facts to be decided on the remaining
counts were either identical to the issue decided by the court’s judgment of acquittal on
the assault count or were “necessarily decided” by that judgment. (See Yeager, supra,
557 U.S. at pp. 119-120.) As the court explained when it denied Gil’s motion to sever or
exclude evidence—and as the court in the first trial explicitly stated—the acquittal in the
prior trial was based on lack of substantial evidence that Gil jumped out of Coyle’s car
and hit the white car’s window with the specific intent to assault Tomita. That “ ‘issue of
ultimate fact’ ” (ibid.) plainly was not identical to the issues to be decided on the other
counts, i.e., whether Gil hit or tapped on the window for some other reason, such as to
distract or startle the people in the car to facilitate the shooting. (Compare Ashe, supra,
397 U.S. at pp. 445-446; Yeager, at pp. 119-120, 123.) The hammer evidence thus was
admissible to help prove that Gil committed the distinct offenses alleged in counts 1, 2,
and 6, which were not dismissed following the previous trial.
For these reasons, the court’s failure to dismiss all charges against Gil did not
violate the double jeopardy clause. (See People v. Catlin (2001) 26 Cal.4th 81, 124
[collateral estoppel “doctrine does not ‘exclude in all circumstances . . . relevant and
probative evidence that is otherwise admissible . . . simply because it relates to alleged
criminal conduct for which a defendant has been acquitted’ ”].)
2. Severance
Section 1098 provides in relevant part: “ ‘ “When two or more defendants are
jointly charged with any public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials.” ’ ” This section reflects the
Legislature’s preferences for joint trials. (People v. Letner & Tobin (2010) 50 Cal.4th 99,
149-150.) The court may, however, “ ‘in its discretion, order separate trials “in the face
of an incriminating confession, prejudicial association with codefendants, likely
confusion resulting from evidence on multiple counts, conflicting defenses, or the
possibility that at a separate trial a codefendant would give exonerating testimony.”

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[Citations.] [¶] We review a trial court’s denial of a severance motion for abuse of
discretion based on the facts as they appeared at the time the court ruled on the motion.
[Citation.] If the court’s joinder ruling was proper at the time it was made, a reviewing
court may reverse a judgment only on a showing that joinder “ ‘resulted in “gross
unfairness” amounting to a denial of due process.’ ” ’ [Citation.]” (Ibid.)
Here, Gil bases his claim that severance or exclusion of evidence was necessary on
the fact that evidence admitted at trial, specifically the hammer related evidence and
evidence that the hammer wielder was wearing a black beanie like the one found in
Coyle’s car with Gil’s DNA on it, placed him “in jeopardy yet again on the precise same
facts as those presented at the first trial, upon which he was acquitted by the judge trying
that case.”
As already discussed in part I.B.1., ante, Gil’s related double jeopardy claim is
without merit and the challenged evidence was admissible. For the same reasons, the
court did not abuse its discretion when it denied his motion to sever or exclude evidence.
People v. Letner & Tobin, supra, 50 Cal.4th at p. 150.) Nor has Gil shown that joinder
“ ‘ “ ‘resulted in “gross unfairness” amounting to a denial of due process.’ ” ’ ” (Ibid.)
II. Sufficiency of the Evidence Issues Related to the
Gang Offense Conviction and Gang Enhancement
The California Street Terrorism Enforcement and Prevention (STEP) Act was
enacted by the Legislature in 1988. (Pen. Code, § 186.20 et seq.) “Underlying the STEP
Act was the Legislature’s recognition that ‘California is in a state of crisis which has been
caused by violent street gangs whose members threaten, terrorize, and commit a
multitude of crimes against the peaceful citizens of their neighborhoods.’ (Pen. Code,
§ 186.21.) The act’s express purpose was ‘to seek the eradication of criminal activity by
street gangs.’ ” (People v. Gardeley (1996) 14 Cal.4th 605, 609 (Gardeley).)
“As relevant here, the STEP Act imposes certain penal consequences when crimes
are committed ‘for the benefit of, at the direction of, or in association with any criminal
street gang.’ (Pen. Code, § 186.22, subd. (b)(1), italics added.) A ‘criminal street gang,’
as defined by the act, is any ongoing association of three or more persons that shares a

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common name or common identifying sign or symbol; has as one of its ‘primary
activities’ the commission of specified criminal offenses; and engages through its
members in a ‘pattern of criminal gang activity.’ (Id., subd. (f), italics added.) Under the
act, ‘pattern of criminal gang activity’ means that gang members have, within a certain
time frame, committed or attempted to commit ‘two or more’ of specified criminal
offenses (so-called ‘predicate offenses’). (Pen. Code, § 186.22, subd. (e).)” (Gardeley,
supra, 14 Cal.4th at pp. 609-610, fn. omitted, disapproved on another ground in People v.
Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 (Sanchez).)
In the present case, both appellants were found guilty of active participation in
criminal street gang activity in violation of section 186.22, subdivision (a), which
provides in relevant part: “Any person who actively participates in any criminal street
gang with knowledge that its members engage in or have engaged in a pattern of criminal
gang activity, and who willfully promotes, furthers, or assists in any felonious criminal
conduct by members of that gang shall be punished by imprisonment in the county jail
for a period not to exceed one year, or by imprisonment in the state prison . . . .”
(§ 186.22, subd. (a).)
The jury also found true, as to each appellant, the allegation that the attempted
murders were committed for the benefit of a criminal street gang, pursuant to section
186.22, subdivision (b)(1)(C). As noted, subdivision (b)(1) of section 186.22 provides
for additional punishment for “any person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang members
. . . .”
Here, appellants challenge the sufficiency of the evidence with respect to some of
the elements that must be proven to support a conviction or enhancement under section
186.22. “In determining whether the evidence is sufficient to support a conviction or an
enhancement, ‘the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential

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elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v. Vy (2004)
122 Cal.App.4th 1209, 1224 (Vy).)
A. Expert Testimony Based on Case-Specific Testimonial Hearsay
Before addressing appellants’ sufficiency of the evidence challenges, we will
address Gil’s claim that the court improperly permitted Hall, the gang expert, to relate
case-specific testimonial hearsay regarding his gang related criminal history. In
particular, he argues that Hall’s statements regarding Gil’s “involvement in the 2003
bottle throwing incident, his 2004 attendance at a gang member’s memorial gathering, his
2004 refusal to register as a gang member, riding away on a bike from an approaching
officer in 2005, [and] the 2006 incident in which [he] reportedly punctured someone’s
tire with an ice pick, contained at least three levels of hearsay: the testifying officer’s
account of what various investigating officers had ascertained from various witnesses
during their investigation.” Gil further argues that this recitation of his criminal history
constituted “a prototypical example of an expert acting as a conduit for testimonial
hearsay the prosecution could not otherwise present directly.”17
After briefing in this case was complete, our Supreme Court decided Sanchez,
supra, 63 Cal.4th 665, in which it clarified the law on the proper scope of expert
testimony,18 as follows: “When any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true and accurate to support the
expert’s opinion, the statements are hearsay. It cannot logically be maintained that the
statements are not being admitted for their truth. If the case is one in which a prosecution
17 Gil notes that defense counsel objected to the use of hearsay from police reports
in describing appellant’s criminal history, citing the right to confrontation and the Sixth
Amendment.
18 Because the parties were aware when they filed their briefs that Sanchez was
pending before our Supreme Court, and therefore fully addressed the issues ultimately
decided in that case, we have determined that additional briefing on the Sanchez decision
itself is unnecessary to our resolution of Gil’s contentions. In addition, although
Martinez’s appellate counsel does not raise this issue on appeal, our conclusions apply
equally to him, in terms of both error and prejudice.

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expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless
(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Id. at p. 686, fn. omitted; see
Crawford v. Washington (2004) 541 U.S. 36, 68.) The court defined testimonial hearsay
as “statements about a completed crime, made to an investigating officer by a
nontestifying witness . . . unless they are made in the context of an ongoing emergency
. . . or for some primary purpose other than preserving facts for use at trial.” (Sanchez, at
p. 694.)
The Sanchez court disapproved its prior decision in Gardeley, supra, 14 Cal.4th
605 “to the extent it suggested an expert may properly testify regarding case-specific out-
of-court statements without satisfying hearsay rules.” (Sanchez, supra, 63 Cal.4th at
p. 686, fn. 13.)19 The court also made clear that its decision “does not affect the
traditional latitude granted to experts to describe background information and knowledge
in the area of his expertise. Our conclusion restores the traditional distinction between an
expert’s testimony regarding background information and case-specific facts.” (Id. at
p. 685.) The court further noted that an expert “may still rely on hearsay in forming an
opinion, and may tell the jury in general terms that he did so” and also may assume the
truth of another witness’s properly admitted testimony “in a properly worded
hypothetical question in the traditional matter.” (Id. at pp. 684, 685.)
In light of the holding in Sanchez, we conclude Hall’s testimony about the prior
police contacts with Gil and Martinez, which he had learned from police arrest reports,
violated the confrontation clause. (See Sanchez, supra, 63 Cal.4th at pp. 686, 694
[expert’s testimony about, inter alia, defendant’s prior police contacts, which was based
19 The Sanchez court further rejected attempts to avoid the hearsay and
confrontation problems inherent in such testimony “by giving a limiting instruction that
such testimony should not be considered for its truth. If an expert testifies to case-
specific out-of-court statements to explain the bases for his opinion, those statements are
necessarily considered by the jury for their truth, thus rendering them hearsay.”
(Sanchez, supra, 63 Cal.4th at p. 684.)

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on his review of police investigative reports that were not admitted into evidence,
constituted testimonial hearsay and was improperly admitted].) We therefore must
determine whether appellants were prejudiced thereby, i.e., whether or not the admission
of this testimonial hearsay was harmless beyond a reasonable doubt. (See id. at p. 698;
see also Chapman v. California (1967) 386 U.S. 18, 24.)
Although Hall’s testimony about appellants’ prior police contacts was erroneously
admitted, there was additional, stronger evidence on which Hall relied in opining about
their involvement with the 18th Street gang, as well as other independent evidence
admitted at trial regarding their involvement. This evidence included Gil’s gang
moniker, Smiley, and the “18” tattoo on his stomach; Martinez’s gang moniker, Shadow,
and his various 18th Street gang related tattoos; Martinez’s acknowledgment that he was
an 18th Street gang member and his statement to police that Gil and Rodriguez were also
18th Street gang members; and, most importantly, testimony—supported by cell phone
records—regarding their conduct on the night of the shooting, including repeated
meetings with various 18th Street gang members, painting over other gangs’ tags with the
name of the 18th Street gang together with other 18th Street gang members, and
participation in the present offenses with those same individuals.
This evidence provided much more compelling support for the jury’s gang-related
findings than Hall’s testimony about several police contacts from years earlier. We
therefore conclude the erroneous admission of the testimonial hearsay to show
appellants’ prior gang involvement was harmless beyond a reasonable doubt. (Chapman
v. California, supra, 386 U.S. at p. 24; see People v. Vega-Robles (2017) 9 Cal.App.5th
382, 415-416 [any error in permitting detective to testify about hearsay bases of his
opinion that defendant was a gang member was harmless where prosecution also relied
on witness with personal knowledge of defendant’s gang involvement to prove his gang
affiliation]; compare Sanchez, supra, 63 Cal.4th at p. 699 [where primary evidence of
defendant’s intent to benefit gang when, acting alone, he possessed drugs for sale in gang

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territory, was expert’s recitation of testimonial hearsay, statements concerning
defendant’s gang affiliation were prejudicial].)20
B. Primary Activities of the 18th Street Gang
As noted, pursuant to subdivision (f) of section 186.22, “ ‘criminal street gang’
means any ongoing organization, association, or group of three or more persons, whether
formal or informal, having as one of its primary activities the commission of one or more
of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (Italics added.)
Both appellants contend the evidence that the primary activities of the 18th Street
gang include offenses set forth in subdivision (e) of section 186.22 was insufficient to
support either their gang offense convictions or the gang enhancements. (See § 186.22,
subd. (f).)
In People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith), our
Supreme Court explained that “[e]vidence of past or present conduct by gang members
involving the commission of one or more of the statutorily enumerated crimes is relevant
in determining the group’s primary activities,” although such evidence is “[n]ot
necessarily” (id. at p. 323) sufficient on its own to prove the gang’s primary activities.
“Sufficient proof of the gang’s primary activities might consist of evidence that the
group’s members consistently and repeatedly have committed criminal activity listed in
the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley,
supra, 14 Cal.4th 605.” (Sengpadychith, at p. 324.)
20 Having found that Hall’s inadmissible testimony about appellants’ past contacts
with police was harmless beyond a reasonable doubt in terms of demonstrating their gang
related criminal history, we will now more specifically address appellants’ claims related
to the particular elements of the gang offense and gang enhancement to determine
whether, apart from that case-specific testimonial hearsay, substantial evidence supported
the convictions and enhancements. (See pts. II.B., II.C., & II.D., post.)

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In Gardeley, a police gang expert testified that the defendant’s gang was primarily
engaged in two of the felonies enumerated in subdivision (e) of section 186.22. The gang
expert based his opinion on conversations he had with the defendant and fellow gang
members, on his investigations of hundreds of crimes committed by gang members, and
on information from colleagues in his police department and various other law
enforcement agencies. (Gardeley, supra, 14 Cal.4th at p. 620.) The Supreme Court held
that this expert testimony provided a basis from which the jury could reasonably find the
gang in question satisfied the primary activities element of section 186.22, subdivision
(f). (Gardeley, at p. 620; see Sengpadychith, supra, 26 Cal.4th at p. 324.)
In this case, without considering any improperly admitted testimonial hearsay (see
Sanchez, supra, 63 Cal.4th at p. 686; pt. II.A., ante), we conclude there is substantial
evidence that the primary activities of the 18th Street gang include offenses set forth in
subdivision (e) of section 186.22. (See also § 186.22, subd. (f).) Hall, the prosecution’s
gang expert, opined that the 18th Street gang is a criminal street gang and that its primary
activities include weapons possession, assault, assault with deadly weapons including
firearms, attempted murder, stabbing, witness intimidation, criminal threats, and some
narcotics offenses.21 He based his opinion on cases he had personally investigated or
assisted with, as well as information he had learned from other investigators in Marin
County, bulletins distributed in the county regarding gang crimes, and news publications
regarding gang crimes occurring in the county.22
21 All of these offenses, with the exception of “assaults” and “some narcotics
offenses” are crimes enumerated in section 186.22, subdivision (e). (See § 186.22, subd.
(e)(1), (3), (8), (24), (31).)
22 Hall’s relevant experience included, inter alia, routinely investigating gang-
related crimes in Novato, including graffiti vandalism, assaults, shootings, and stabbings,
during his five years as a police officer. He had participated in at least 100 hours of
gang-related training, had contacted at least 40 Sureño gang members in Marin County,
including 5 to 15 members of the 18th Street gang, and his knowledge of the 18th Street
gang was based on those contacts, as well as on conversations with other officers and law
enforcement agencies, and reviews of reports and field ID cards. He also had participated
in gang investigations and arrests, had issued search warrants and spoken with gang

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Hall also testified about three predicate offenses, committed within three to eight
months of the present offenses by 18th Street gang members, including Andres Celis,
convicted in May 2010, of assault with a deadly weapon of a rival gang member and
participation in a criminal street gang; Arias Erikson, convicted in August 2010, of
robbery and participation in a criminal street gang; and Jimmy Lucero Tejada, convicted
in October 2010, of assault with a deadly weapon and participation in a criminal street
gang. His testimony was supported by admission into evidence of certified court records.
This evidence of Hall’s experience with and knowledge about Sureño gangs
generally and the 18th Street gang in particular, evidence of the three 18th Street gang
members’ convictions of felonies enumerated in subdivision (e) of section 186.22 in the
months before the present offenses, together with the facts of the present offenses
themselves, provided substantial evidence that the primary activities of the 18th Street
gang included offenses described by Hall, which are enumerated in section 186.22,
subdivision (e). (See Gardeley, supra, 14 Cal.4th at p. 620; see also Vy, supra, 122
Cal.App.4th at p. 1225-1226 [proof of primary activities element was satisfied by
evidence of charged crime and two predicate offenses by gang members in 12 weeks
before charged crime, as well as expert police witness’s testimony regarding gang’s
engagement in criminal actions that constituted predicate crimes under statute].)
This case is thus distinguishable from In re Alexander L. (2007) 149 Cal.App.4th
605, cited by both appellants, in which the gang expert testified only that he “kn[e]w” the
gang in question had been involved in certain crimes, without offering any specifics “as
to the circumstances of these crimes, or where, when, or how [he] had obtained the
information. He did not directly testify that criminal activities constituted [the gang’s]
primary activities. Indeed, on cross-examination, [the expert] testified that the vast
majority of cases connected to [the gang] that he had run across were graffiti related.”
(Id. at pp. 611-612, fn. omitted.) The appellate court found that the expert’s conclusory
members, had also spoken with other law enforcement officers regarding gang crimes,
and had reviewed reports of gang crimes.

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testimony could not be considered substantial evidence as to the nature of the gang’s
primary activities. (Id. at p. 612.) The court distinguished Gardeley, in which “the court
knew where the information to which the expert was testifying originated and was able to
assess its reliability.” (Alexander L., at p. 613.) The Alexander L. court further found
that evidence admitted at trial of two convictions of purported gang members, without
more, did not provide substantial evidence that gang members had “ ‘consistently and
repeatedly’ ” committed criminal activity, for purposes of subdivision (f) of section
186.22. (Alexander L., at p. 614; see Sengpadychith, supra, 26 Cal.4th at p. 324 .)
Here, although Hall may not have investigated “hundreds of crimes committed by
gang members,” as had the expert in Gardeley, he had contacted at least 40 Sureño gang
members in Marin County, had had 5 to 15 law enforcement related contacts with 18th
Street gang members, and had spoken with 18th Street gang members about their
criminal gang activity, including in Novato. (Gardeley, supra, 14 Cal.4th at p. 620.) In
addition, like the expert in Gardeley, Hall based his opinion about the primary activities
of the 18th Street gang on the cases he had personally investigated, as well as on
information he had learned from local investigators and other law enforcement agencies.
(See ibid.) As we have explained, Hall’s testimony, together with the evidence of three
prior offenses by 18th Street gang members and the charges in the present case provided
substantial evidence to support the primary activities element of section 186.22,
subdivision (f). (See Gardeley, at p. 620; Vy, supra, 122 Cal.App.4th at pp. 1225-1226.)
C. Active Participation in a Criminal Street Gang with Knowledge
that Its Members Engage In a Pattern of Criminal Gang Activity
As noted, section 186.22, subdivision (a) punishes “[a]ny person who actively
participates in any criminal street gang with knowledge that its members engage in or
have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers,
or assists in any felonious criminal conduct by members of that gang . . . .”
“The gravamen of the substantive offense set forth in section 186.22[, subdivision]
(a) is active participation in a criminal street gang. [Our Supreme Court] explained in
People v. Castenada [(2000)] 23 Cal.4th 743 [(Castenada)], that the phrase ‘actively

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participates’ reflects the Legislature’s recognition that criminal liability attaching to
membership in a criminal organization must be founded on concepts of personal guilt
required by due process: ‘a person convicted for active membership in a criminal
organization must entertain “guilty knowledge and intent’ of the organization’s criminal
purposes.’ [Citation.] Accordingly, the Legislature determined that the elements of the
gang offense are (1) active participation in a criminal street gang, in the sense of
participation that is more than nominal or passive; (2) knowledge that the gang’s
members engage in or have engaged in a pattern of criminal gang activity; and (3) the
willful promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang. [Citation.] All three elements can be satisfied without proof the
felonious criminal conduct promoted, furthered, or assisted was gang related.” (People v.
Albillar (2010) 51 Cal.4th 47, 55–56 (Albillar).)
In demonstrating active participation, “it is not necessary for the prosecution to
prove that the person devotes all, or a substantial part, of his or her time or efforts to the
criminal street gang, nor is it necessary to prove that the person is a member of the
criminal street gang.” (§ 186.22, subd. (i).) Still, “[i]t is not enough that a defendant
[has] actively participated in a criminal street gang at any point in time . . . . A
defendant’s active participation must be shown at or reasonably near the time of the
crime.” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1509.)
Here, appellants contend there is insufficient evidence that they actively
participated in a criminal street gang with the requisite “knowledge that its members
engage in or have engaged in a pattern of criminal gang activity.” (See § 186.22, subd.
(a).) They maintain that no evidence was presented that they knew about the three
predicate crimes that demonstrated a pattern of criminal gang activity or that those crimes
had been committed by gang members. Gil also asserts that there is no evidence that he
was aware of the criminal activities of 18th Street gang members generally. As we shall
explain, appellants are mistaken in their interpretation of what is required to satisfy the
knowledge element of section 186.22, subdivision (a).

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In People v. Carr (2010) 190 Cal.App.4th 475 (Carr), the appellate court
construed the knowledge element of section 186.22, subdivision (a), as did the Supreme
Court in Castenada, “to correlate to the active membership test described in Scales [v.
United States (1961) 367 U.S. 203, 228], that is, ‘ “guilty knowledge and intent” of the
organization’s criminal purposes’ [citations], [which] does not require a defendant’s
subjective knowledge of particular crimes committed by gang members . . . .” (Carr, at
p. 488, fn. 13, quoting Castenada, supra, 23 Cal.4th at p. 749.) The Carr court further
explained that, “just as a jury may rely on evidence about a defendant’s personal conduct,
as well as expert testimony about gang culture and habits, to make findings concerning a
defendant’s active participation in a gang or a pattern of gang activity, it may also rely on
the same evidence to infer a defendant’s knowledge of those activities.” (Carr, at p. 489,
fn. omitted.)
In Carr, evidence of the defendant’s knowledge of the criminal activities of the
gang in question included his admission of gang membership to a police officer, his being
contacted by police in the company of a member of a related gang; his wearing of a gang-
related tattoo; expert testimony regarding an ongoing feud between the defendant’s gang
and the murder victims’ gang, as reflected in local graffiti and testified to by the expert;
the charged murders of rival gang members in gang territory; the defendant’s previous
conviction of possession of cocaine base for sale; and the expert’s testimony that two
other gang members had been convicted of qualifying felonies with the previous two
years. (Carr, supra, 190 Cal.App.4th at p. 489.) The court concluded this evidence was
“more than sufficient for the jury to infer [the defendant] knew about the criminal
activities of [the gang] and that the [charged] murders were committed for the benefit of
the gang.” (Id. at pp. 489-490.)
In the present case, there is substantial evidence, apart from any improperly
admitted testimonial hearsay (see Sanchez, supra, 63 Cal.4th at p. 686; pt. II.A., ante),
demonstrating appellants’ knowledge that 18th Street gang members “engage in or have
engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (a).) Some of the
evidence demonstrating Gil’s knowledge includes the “18” tattoo on his stomach; his

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gang moniker, “Smiley”; and Martinez’s statement to police that both Gil and Rodriguez
were 18th Street gang members. Evidence showing Martinez’s knowledge includes his
various tattoos related to the 18th Street gang; his gang moniker “Shadow”; and his
admission that he was an 18th Street gang member. In addition, evidence that both men
knew about the pattern of criminal activities of 18th Street gang members includes Hall’s
testimony that there were often rivalries between Sureño subsets or cliques; Gil and
Martinez’s participation in tagging over the graffiti of another local Sureño clique shortly
before the shooting, including writing “187,” which Hall testified referred to murder;
their meetings with 18th Street gang members at various locations on the night of the
shooting; and, finally, their participation—together with Rodriguez, another 18th Street
gang member—in the current offenses, in which a person associated with yet another
rival Sureño clique and another person were shot.
We find that, as in Carr, “[t]his evidence is more than sufficient for the jury to
infer [appellants] knew about the criminal activities of” the 18th Street gang. (Carr,
supra, 190 Cal.App.4th at pp. 489-490.)
D. Gil’s Specific Intent to Promote, Further, or Assist
in Criminal Conduct by Gang Members
As noted, the jury in this case found true as to both appellants the enhancement
allegation under subdivision (b)(1) of section 186.22, which provides for additional
punishment for “any person who is convicted of a felony committed for the benefit of, at
the direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members . . . .”
Gil contends there was insufficient evidence to support the finding that he acted
with “the specific intent to promote, further, or assist in any criminal conduct by gang
members.” (§ 186.22, subd. (b)(1).) Specifically, he argues that the only evidence of his
intent to benefit the 18th Street gang was Hall’s improper opinion, based on a
hypothetical question that included facts from Coyle’s testimony, that Gil’s conduct was
consistent with conduct engaged in by an 18th Street gang member for the benefit and
promotion of the gang.

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Our Supreme Court has explained that to the extent an expert expresses an opinion
in response to a hypothetical question based on the evidence admitted at trial, such
testimony does not simply inform the jury of his or her belief about how the case should
be resolved. (People v. Vang (2011) 52 Cal.4th 1038, 1049 (Vang); see also Sanchez,
supra, 63 Cal.4th at p. 684; Evidence Code, § 805 [“ ‘Testimony in the form of an
opinion that is otherwise admissible is not objectionable because it embraces the ultimate
issue to be decided by the trier of fact’ ”].)
In addition, in Albillar, supra, 51 Cal.4th at page 66, the Supreme Court found
“that the scienter requirement in section 186.22[, subdivision] (b)(1)—i.e., ‘the specific
intent to promote, further, or assist in any criminal conduct by gang members’—is
unambiguous and applies to any criminal conduct, without a further requirement that the
conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought
to be enhanced.” Thus, “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 conduct by
those gang members.” (Albillar, at p. 68; accord, People v. Livingston (2012) 53 Cal.4th
1145, 1171.)
In Albillar, for example, in which the defendants were charged with forcible rape
and digital penetration in concert, the court held there was “ample evidence that
defendants intended to attack [the victim], that they assisted each other in raping her, and
that they were each members of the criminal street gang. Accordingly, there was
substantial evidence that defendants acted with the specific intent to promote, further, or
assist gang members in that criminal conduct.” (Albillar, supra, 51 Cal.4th at pp. 59, 68.)
Here, there was substantial evidence, apart from any improperly admitted
testimonial hearsay (see Sanchez, supra, 63 Cal.4th at p. 686; pt. II.A., ante), that Gil
intended to commit the present offenses together with Martinez and Rodriguez, both 18th
Street gang members. In addition to evidence of his gang affiliation—if not
membership—the evidence showed that Gil met several times on the night of the
shooting with 18th Street gang members and that he, Martinez, and Rodriguez painted

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over the graffiti of another Sureño subset, the West Side Wynos.23 The evidence further
showed that he then followed the car of the victims—one of whom was associated with
Richmond Sur-Trece, another Sureño subset—to Safeway, at which point Gil said, “ ‘If I
get down, are you guys getting down?’ ” Finally, the evidence showed that Gil then
jumped out of the car and hit the driver’s side window with a hammer seconds before
Martinez shot into the car, injuring the two victims. (See Albillar , supra, 51 Cal.4th at
p. 68.)
In addition, Hall opined, in response to a hypothetical question based on evidence
presented at trial, that a person who engaged in this conduct would have the specific
intent to benefit the 18th Street gang, explaining that there is strength in numbers and
more faith in the success of the crime if committed in concert. Hall also testified that
tagging over another gang’s existing tag is disrespectful and that Gil “would perhaps feel
obligated to ensure that he was not disrespected, nor was his gang.” Contrary to Gil’s
claim, Hall did not “simply inform[] the jury of how he felt the case should be resolved.”
(People v. Ramon (2009) 175 Cal.App.4th 843, 851.) Rather, Hall responded to the
prosecutor’s hypothetical question, giving “the opinion that [the charged offenses]
committed in the manner described in the hypothetical question would be gang related.
[Hall] did not give an opinion on whether [Gil] did commit [the charged offenses] in that
way, and thus did not give an opinion on how the jury should decide the case.” (Vang,
supra, 52 Cal.4th at p. 1049.)
In sum, there was sufficient evidence of Gil’s specific intent to promote, further,
or assist criminal conduct of the 18th Street gang to support the true finding on the gang
23 Gil points out that local resident Richard Oltman testified that he saw the black-
painted gang graffiti earlier than when Coyle testified that Gil, Martinez, and Rodriguez
had painted over the other two tags. This fact does not, however, mean the jury could not
have reasonably relied on Coyle’s estimate of the timing, rather than that of Oltman,
which was not in any case particularly definitive. (See People v. Ferraez (2003) 112
Cal.App.4th 925, 931 [“We do not reweigh evidence or redetermine issues of
credibility”].)

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enhancement allegation. (See § 186.22, subd. (b)(1); Albillar, supra, 51 Cal.4th at
pp. 66-68.)
III. Aiding and Abetting Instruction
Gil and Martinez contend the court erred when it instructed the jury that Gil could
be found liable as an aider and abettor of attempted murder based on the natural and
probable consequences of the target crime of criminal street gang activity.24
A. Trial Court Background
The trial court instructed the jury that Gil could be found guilty of the attempted
murders of Elias and Lopez as an aider and abettor, based on the natural and probable
consequences doctrine, as follows:
“A person may be guilty of a crime in two ways: One, he or she may have directly
committed the crime. I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the crime. A person is guilty of
a crime whether he or she committed it personally or aided and abetted the perpetrator.
Under some specific circumstances, if the evidence establishes aiding and abetting of one
crime, a person may also be found guilty of other crimes that occurred during the
commission of the first crime. [(See CALCRIM No. 400.)]
“The People allege that Armando Gil is guilty of the crimes charged in counts 1
and 2 as an aider and abettor. The following instructions apply to the charges against
Armando Gil pursuant to the aider and abettor theory.
“The Defendant Armando Gil is charged in count 6 with the crime of criminal
street gang activity, in violation of Penal Code section 186.22(a); in count 1 with the
attempted murder of Elias Agueros; and in count 2 with the attempted murder of Marcos
Lopez, in violation of Penal Code Sections 664/187(a).
24 Although the trial court gave this instruction only as to Gil, Martinez joins in
this argument and further contends the court erred in not giving the instruction as to him
as well. (See pt. IV., post.)

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“You must first decide whether the defendant Armando Gil is guilty of the crime
of criminal street gang activity, in violation of Penal Code section 186.22(a), as charged
in count 6. If you find the defendant Armando Gil is guilty of this crime, count 6, you
must then decide whether he is guilty of the crimes of attempted murder, as charged in
counts 1 and 2; and 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 Armando Gil is guilty of attempted murder, as
charged in counts 1 and 2, the People must prove that, one, the defendant Armando Gil is
guilty of criminal street gang activity, in violation of Penal Code section 186.22(a), as
charged in count 6; [two,] during the commission of that crime, criminal street gang
activity, in violation of Penal Code Section 186.22(a), as charged in count 6, a co-
participant in that crime committed the crimes of attempted murder, as charged in counts
1 and 2; and, three, under all the circumstances, a reasonable person in the defendant
Armando Gil’s position, would have known that the commission of the crimes of
attempted murder, as charged in counts 1 and 2, were natural and probable consequences
of the commission of the crime of criminal street gang activity, in violation of Penal Code
Section 186.22(a), as charged in count 6.
“A co-participant in a crime is the perpetrator or anyone who aided and abetted the
perpetrator. It does not include a victim or an 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 the circumstances established by the evidence.
“If the crimes of attempted murder, as charged in counts 1 and 2, were committed
for a reason independent of a common plan to commit the crime of criminal street gang
activity, as charged in count 6, then the commission of the crimes of attempted murder, as
charged in counts 1 and 2, were not natural and probable consequences of the crime of
criminal street gang activity, as charged in count 6. To decide whether the crimes of
attempted murder, as charged in counts 1 and 2, were committed, please refer to the
separate instructions that I will give you on that crime.” (See CALCRIM No. 402.)

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The court also instructed the jury on the target crime of criminal street gang
activity. (See § 186.22, subd. (a).) The instruction provided in relevant part: “To prove
that a defendant is guilty of this crime, the People must prove that, one, the defendant
actively participated in a criminal street gang; two, when the defendant participated in the
gang, he knew that members of the gang engage in or have engaged in a pattern of
criminal gang activity; and, three, the defendant willfully assisted, furthered, or promoted
felonious criminal conduct by members of the gang either by, a. directly and actively
committing a felony offense, or, b. aiding and abetting a felony offense.” (See
CALCRIM No. 1400.) The instruction defined “felonious criminal conduct” as
“committing or attempting to commit any of the following crimes: Attempted murder,
assault with a deadly weapon, or shooting at an occupied vehicle.” (See ibid.)
The jury found both appellants guilty of the gang offense and the two counts of
attempted murder.
B. Legal Analysis
“ ‘ “It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.” [Citation.]’ [Citation.] ‘ “ ‘A
defendant challenging an instruction as being subject to erroneous interpretation by the
jury must demonstrate a reasonable likelihood that the jury understood the instruction in
the way asserted by the defendant. [Citations.]’ [Citation.] ‘ “[T]he correctness of jury
instructions is to be determined from the entire charge of the court, not from a
consideration of parts of an instruction or from a particular instruction.” ’ [Citations.]”
(People v. Covarrubias (2016) 1 Cal.5th 838, 905.) In addition, “ ‘[n]ot every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due process
violation.’ [Citation.] In reviewing an ambiguous instruction, we inquire whether there
is a reasonable likelihood that the jury misunderstood or misapplied the instruction in a
manner that violates the Constitution. [Citation.]” (Id. at p. 906, quoting Estelle v.
McGuire (1991) 502 U.S. 62, 72.)
We review the legal adequacy of an instruction de novo. (People v. Cole (2004)
33 Cal.4th 1158, 1210.)

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“ ‘Generally, a party may not complain on appeal that an instruction correct in law
and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.’ [Citation.] But that rule does
not apply when . . . the trial court gives an instruction that is an incorrect statement of the
law. [Citations.]” (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012; see also
People v. Young (2005) 34 Cal.4th 1149, 1211 [no forfeiture for failing to object to
erroneous instruction if error affected defendant’s substantial rights].) In the present
case, the court instructed on aiding and abetting liability under the natural and probable
consequences doctrine as to Gil, and appellants acknowledge that neither defense
attorney objected to the instruction as given. They assert, however, that we should
address their contention because the court’s instruction was an incorrect statement of the
law and affected their substantial rights. Giving appellants the benefit of the doubt, we
decline to find the issue forfeited. (See ibid.)
Section 31 provides in relevant part: “All persons concerned in the commission of
a crime, whether it be felony or misdemeanor, and whether they directly commit the act
constituting the offense, or aid and abet in its commission . . . are principals in any crime
so committed.” In addition, “an aider and abettor is a person who, ‘acting with (1)
knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.’
[Citation.]” (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman ), quoting
People v. Beeman (1984) 35 Cal.3d 547, 561.)
“Under California law, a person who aids and abets a confederate in the
commission of a criminal act is liable not only for that crime (the target crime), but also
for any other offense (nontarget crime) committed by the confederate as a ‘natural and
probable consequence’ of the crime originally aided and abetted. To convict a defendant
of a nontarget crime as an accomplice under the ‘natural and probable consequences’
doctrine, the jury must find that, with knowledge of the perpetrator’s unlawful purpose,
and with the intent of committing, encouraging, or facilitating the commission of the

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target crime, the defendant aided, promoted, encouraged, or instigated the commission of
the target crime. The jury must also find that the defendant’s confederate committed an
offense other than the target crime, and that the nontarget offense perpetrated by the
confederate was a ‘natural and probable consequence’ of the target crime that the
defendant assisted or encouraged.” (Prettyman, supra, 14 Cal.4th at p. 254.)
In this case, appellants contend CALCRIM No. 402, the instruction on the natural
and probable consequences doctrine, directed a verdict for attempted murder because the
prosecution expert, Hall, testified that appellants had engaged in criminal street gang
activity in the past, which permitted the jury to find them guilty of the target crime,
criminal street gang activity, based on outdated and inadmissible evidence of gang
activity (see pt. II., A., ante) that was unrelated to the charged shooting. Appellants also
contend the instruction was fatally ambiguous in that attempted murder was both the
greater crime and one of the possible target crimes. We disagree.
The instruction did not direct a verdict for attempted murder based on Hall’s
testimony that appellants had engaged in criminal street gang activity in the past. First,
as already discussed (see pt. II., D., ante), Hall did not offer an opinion on whether
appellants had committed the gang offense, “and thus did not give an opinion on how the
jury should decide the case.” (Vang, supra, 52 Cal.4th at p. 1049.)
Second, the challenged instruction did not permit the jury to find appellants guilty
of the target crime of criminal street gang activity based on Hall’s improper testimony
regarding purported gang activity from years earlier. CALCRIM No. 402 specifically
provided that, for Gil to be found guilty of attempted murder, “the People must prove
that, one, the defendant Armando Gil is guilty of criminal street gang activity, in
violation of Penal Code Section 186.22(a), as charged in count 6; [two,] during the
commission of that crime, criminal street gang activity, . . . a co-participant in that crime
committed the crimes of attempted murder, as charged in counts 1 and 2; and, three,
under all the circumstances a reasonable person in the defendant Armando Gil’s position,
would have known that the commission of the crimes of attempted murder . . . were

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natural and probable consequences of the commission of the crime of criminal street gang
activity . . . .” (Italics added.)
As shown by the italicized language above, CALCRIM No. 402 plainly told the
jury that it could find Gil guilty of the attempted murders as an aider and abettor under
the natural and probable consequences doctrine only if it found that during the
commission of the gang offense, a co-participant in that crime committed the attempted
murders. In light of this language, there is no possibility that the jurors could have
understood the instruction to permit them to base their finding of guilt on the much
earlier gang related conduct to which Hall testified. Rather, the instruction explicitly
stated that Gil’s participation in the target crime of criminal street gang activity by
“willfully assist[ing], further[ing], or promot[ing] felonious criminal conduct[25] by
members of the gang” (CALCRIM No. 1400) had to occur contemporaneously with a co-
participant’s commission of attempted murder.
Nor was the instruction ambiguous. The target crime alleged in CALCRIM No.
402 was criminal street gang activity (§ 186.22, subd. (a)), as charged in count 6, not
attempted murder. Thus, while attempted murder was listed as one of the possible
felonious criminal acts committed by members of the gang, which Gil was alleged to
have “willfully assisted, furthered, or promoted” (CALCRIM No. 1400), the target crime
of criminal street gang activity plainly was not identical to the greater crime of attempted
murder. There is no reasonable likelihood the jury misunderstood or misapplied
the instructions in question. (See Covarrubias, supra, 1 Cal.5th at p. 906.)
IV. Failure to Give the Aiding and Abetting Instruction as to Martinez
Martinez contends the trial court erred in instructing the jury on the elements of
aiding and abetting under the natural and probable consequences doctrine only as to Gil.
25 Again, the “felonious criminal conduct” alleged here was the commission or
attempted commission of attempted murder, assault with a deadly weapon, or shooting at
an occupied vehicle.

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A trial court is required to instruct sua sponte on “ ‘ “general legal principles
raised by the evidence and necessary for the jury’s understanding of the case” ’ [citation].
In particular, instructions delineating an aiding and abetting theory of liability must be
given when such derivative culpability ‘form[s] a part of the prosecution’s theory of
criminal liability and substantial evidence supports the theory.’ [Citation.]” (People v.
Delgado (2013) 56 Cal.4th 480, 488 (Delgado), quoting Prettyman, supra, 14 Cal.4th at
pp. 264, 266-267.)
Here, the prosecution’s theory of the case was that Gil and Martinez, together with
their uncharged accomplice, Rodriguez, were co-participants in the attempted murders,
but that Martinez was directly liable as the shooter. The vast majority of the prosecution
evidence and the prosecutor’s closing arguments related to this theory. It is true,
however, that the prosecutor did briefly state during closing argument that Martinez
could be found guilty of attempted murder as an aider and abettor under the natural and
probable consequences doctrine: “Even if you determine that the shooter was Mousey
[Rodriguez], if you find that they are 18th Street gang members right here actively
participating, and you find them liable natural and probable consequences [sic], they’re
all liable.” The prosecutor subsequently stated that “[w]hen all three of them get out of
the car” and “go toward the white car,” “they’re pretty much liable for the natural,
foreseeable consequences of what may go down” and that, under the aiding and abetting
instruction, “[i]f the defendant helped with the intent to help, he is responsible for the
result.”
Martinez’s defense theory was that he was at home, in bed, at the time of the
shooting, and the majority of his defense evidence related to this theory. Also, in closing
argument, Martinez’s attorney spent quite a bit of time explaining to the jury that, in light
of the instructions given, it was foreclosed from considering whether Martinez could be
found guilty as an aider and abettor. For example, before going into more detail about
the applicability of specific instructions, counsel stated, “Several legal instructions that
Judge Boren read to you on Friday and Monday dictate that your only task as to

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[Martinez] is to decide whether the People proved beyond a reasonable doubt by credible
evidence that [Martinez] was the shooter in this case.”
The evidence and arguments thus clearly focused on whether the evidence showed
that Martinez was the shooter. Moreover, even assuming it could be argued, based on the
prosecutor’s brief mention of aiding and abetting in relation to Martinez, that derivative
culpability formed a part of the prosecution’s theory of liability on the attempted murder
charge as to Martinez and that the theory was supported by substantial evidence
(Delgado, supra, 56 Cal.4th at p. 488), we would find the court’s erroneous failure to
instruct harmless. (See id. at p. 492.)
In Delgado, our Supreme Court found that the court’s error in failing to instruct
the jury on accomplice liability with respect to the defendant on the asportation element
of kidnapping was not of federal constitutional dimension because it “did not constitute
failure to instruct on an element of the offense and did not unconstitutionally lessen the
People’s burden of proof.” (Delgado, supra, 56 Cal.4th at pp. 489-490.) Nor was there a
reasonable likelihood the jury applied the instructions given in a way that deprived the
defendant of his constitutional rights. As the court explained: “For the jury to find
defendant guilty of kidnapping, on the evidence before it, without finding either that he
personally moved the victim or that he harbored the requisite mental state to be indirectly
liable for the driver’s asportation, would verge on the irrational.” (Id. at p. 491.)
The Delgado court then determined that the failure to instruct on accomplice
liability was harmless under the state error of People v. Watson (1956) 46 Cal.2d 818,
836 (Watson). (Delgado, supra, 56 Cal.4th at p. 492.) As the court observed: “ ‘[I]t is
hard to imagine how an aiding and abetting instruction would have helped [defendant], as
it would have merely offered an alternative, additional means of establishing asportation
without having to prove [defendant] took part in transporting the victim.’ ” (Delgado, at
p. 492)
In the present case, we do not agree with Martinez that the prosecutor’s comments
during closing argument suggested that he could be found guilty of attempted murder
under the natural and probable consequences doctrine merely because he got out of

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Coyle’s car and walked toward the white car. In context, the prosecutor was stating that
if the three men acted with the intent to commit the target crime of criminal street gang
activity under section 186.22, subdivision (a), “then they’re all liable for the foreseeable
consequences.” Moreover, the evidence and argument were primarily focused on
whether Martinez was directly liable for the attempted murder as the shooter. In addition,
the jury did receive proper instruction, albeit geared to Gil, regarding the necessary
elements for finding derivative liability under the natural and probable consequences
doctrine, as well as regarding the required intent and the need for proof beyond a
reasonable doubt. For these reasons, like the Delgado court, we conclude there is no
reasonable likelihood “that the jury filled the gap created by the absence of complicity
instructions [as to Martinez] in a manner that excused the prosecution from proving the
facts essential to an aiding and abetting theory.” (Delgado, supra, 56 Cal.4th at pp. 491-
492.) Hence, any error was not one of constitutional dimension. (See id. at p. 490.)
Also like the court in Delgado, we find the alleged error was harmless under state
law. (See Delgado, supra, 56 Cal.4th at p. 492; Watson, supra, 56 Cal.4th at p. 836.)
First, the vast majority of the prosecution evidence and argument regarding Martinez’s
involvement in the attempted murders related to his being the direct perpetrator, and the
defense argument and alibi evidence attempted to show that he simply was not present at
the time of the offenses.
Second, the evidence showed that Coyle saw Martinez with the gun and also saw
him shooting at the white car. Cell phone evidence showed that Martinez’s cell phone
was in the area of the Bay Vista apartments and Safeway around the time of the shooting,
and his story that he had loaned his phone to Rodriguez was belied by text messages and
phone calls to Jocelyn from that phone just before the shooting, notwithstanding
Jocelyn’s improbable testimony that it was Rodriguez who first called her and then texted
her, responding to her earlier news that she was pregnant.
The evidence also showed that Martinez, an active gang member, met with other
gang members before the shooting, was with Gil and Rodriguez when they painted over
other gang graffiti and followed the white car from the Bay Vista apartments to the

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Safeway, and that he got out of Coyle’s car with Gil and Rodriguez just after Gil said,
“ ‘If I get down, are you guys getting down?’ ” Sergeant Jenner also testified that the
store’s surveillance video showed three people surrounding the white car and Officer
Ramirez testified that witness Mary Eid told him she saw three people near the car—two
near the rear passenger side and one near the rear driver side—although at trial she
claimed she only saw two people. In addition, after the shooting, Martinez and
Rodriguez exchanged a number of text messages, such as: “ ‘Hey fool, we need to get to
Richmond . . . ,’ ” “ ‘Smiley’s girl got arrested’ ” and “ ‘She might snitch us out . . . .’ ”
In light of the strong evidence of shared specific intent, which demonstrated that
Martinez and the other two participants intentionally cooperated in the gang-related
attack on the victims, as well as other evidence showing Martinez’s involvement in the
incident and the relevant instructions given at trial, it is not reasonably probable that the
jury convicted Martinez based solely on his presence at the shooting scene or that the
result would have been different had the court told the jury that it could convict him of
attempted murder on an aiding and abetting theory under the natural and probable
consequences doctrine. (See Delgado, supra, 56 Cal.4th at p. 492; Watson, supra, 46
Cal.2d at p. 836.)26
26 Martinez points out that the jury was unable to reach a verdict on the assault
with a firearm and shooting an occupied vehicle counts and related enhancement
allegations. He asserts this shows that “at least one juror found Martinez was not the
shooter, and thus he could only have been convicted as an aider and abettor, despite the
absence of instructions on this theory as to Martinez.” Under section 954, however,
which provides that “[a]n acquittal of one or more counts shall not be deemed an
acquittal of any other count,” and “inherently inconsistent verdicts are allowed to stand”
if they are otherwise supported by substantial evidence. (People v. Lewis (2001) 25
Cal.4th 610, 656.) This rule is also applicable to inconsistent enhancement findings and
enhancement findings that are inconsistent with the verdict on a substantive offense.
(People v. Miranda (2011) 192 Cal.App.4th 398, 405; People v. York (1992) 11
Cal.App.4th 1506, 1510.) Such inconsistencies “may show no more than jury lenity,
compromise, or mistake, none of which undermines the validity of a verdict.
[Citations.]” (Lewis, at p. 656.) Here, for the reasons set forth in the harmless error
discussion (see text, ante), the attempted murder verdicts against Martinez were plainly

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V. Instructions on Attempted Premeditated Murder under the
Natural and Probable Consequences Doctrine
Both appellants contend the trial court erred when it instructed the jury that Gil
could be found guilty of attempted premeditated murder under the natural and probable
consequences doctrine. In so arguing, they rely on our Supreme Court’s recent holding in
Chiu, supra, 59 Cal.4th at pages 158-159 “that an aider and abettor may not be convicted
of first degree premeditated murder under the natural and probable consequences
doctrine. Rather, his or her liability for that crime must be based on direct aiding and
abetting principles. [Citation.]”
The Chiu court, however, distinguished the case before it from People v. Favor
(2012) 54 Cal.4th 868 (Favor),27 in which the court had “held that under the natural and
probable consequences doctrine as applied to the premeditation allegation under section
664, subdivision (a) . . . , a trial court need only instruct that the jury find that attempted
murder, not attempted premeditated murder, was a foreseeable consequence of the target
offense. [Citation.] The premeditation finding—based on the direct perpetrator’s mens
rea—is determined after the jury decides that the nontarget offense of attempted murder
was foreseeable. [Citation.]” (Chiu, supra, 59 Cal.4th at p. 162, citing People v. Favor,
at pp. 872, 879-880.)
The Supreme Court in Chiu further distinguished Favor as follows: “Unlike
Favor, the issue in the present case does not involve the determination of legislative
intent as to whom a statute applies. Also, unlike Favor, which involved the
determination of premeditation as a requirement for a statutory penalty provision,
premeditation and deliberation as it relates to murder is an element of first degree murder.
In reaching our result in Favor, we expressly distinguished the penalty provision at issue
there from the substantive crime of first degree premeditated murder on the ground that
supported by substantial evidence, and we will not speculate as to the reason for the
inconsistencies in the verdicts. (See § 954; Lewis, at p. 656.)
27 The continuing viability of Favor is currently before the Supreme Court in
People v. Mateo (Feb. 10, 2016, B258333), review granted May 11, 2016, S232674.

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the latter statute involved a different degree of the offense. [Citation.] Finally, the
consequence of imposing liability for the penalty provision in Favor is considerably less
severe than in imposing liability for first degree murder under the natural and probable
consequences doctrine. Section 664[, subdivision] (a) provides that a defendant
convicted of attempted murder is subject to a determinate term of five, seven, or nine
years. If the jury finds the premeditation allegation true, the defendant is subject to a
sentence of life with the possibility of parole. (Ibid.) With that life sentence, a defendant
is eligible for parole after serving a term of at least seven years. (§ 3046, subd. (a)(1).)
On the other hand, a defendant convicted of first degree murder must serve a sentence of
25 years to life. (§ 190, subd. (a).) He or she must serve a minimum term of 25 years
before parole eligibility. (§ 3046, subd. (a)(2).) A defendant convicted of second degree
murder must serve a sentence of 15 years to life, with a minimum term of 15 years before
parole eligibility. (§§ 190, subd. (a), 3046, subd. (a)(2).)” (Chiu, supra, 59 Cal.4th at
p. 163.)
Appellants challenge the logic of any purported distinction between attempted and
completed premeditated murder in the context of the natural and probable consequences
doctrine. Because the Supreme Court in Chiu did not question the continued viability of
Favor, but simply distinguished it, we are presently bound by the holding in Favor. (See
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
VI. Exclusion of Rodriguez’s Facebook Statements
Both appellants contend the court erred and violated their constitutional right to
present a defense when it excluded Rodriguez’s statements on Facebook that he had shot
the victims. They claim the statements were admissible as declarations against penal
interest under Evidence Code section 1230.
A. Trial Court Background
Before trial, Martinez’s counsel moved in limine to admit evidence under
Evidence Code section 1230 regarding statements Rodriguez had made in Facebook
messages to two female friends about his involvement in the Safeway shooting. Counsel
reported that Rodriguez apparently had fled to Mexico shortly after the shooting, and had

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subsequently exchanged a series of Facebook messages with two teenage girls between
February and July 2011. The two girls, Briana D. and Paula C., had provided printouts of
the messages to Martinez’s counsel. Gil’s counsel joined in the motion.
At a hearing on the motion, in which Gil’s attorney joined, the trial court
summarized the relevant Facebook exchanges as follows:
“The first writing of significance was posted on July 2, 2011. There were earlier
postings in February and March that are part of the exhibit, but I don’t see them as being
relevant to the issues here.
“On July 2, 2011, [Rodriguez] wrote, ‘The pigs,’ or police, ‘are looking for me,’ to
which Briana D[.] . . . asks, ‘What did you do?’ Rodriguez responds, ‘Just go to Marin IJ
dot com, put “Shooting in Novato.” ’ [Briana D.] then next asks, ‘Was it you who shot?’
. . . . [¶] On July 3, 2011, Rodriguez replies, ‘Na, I never got shot. We shot some
bitches.’ [Briana D.] replies by another question, ‘Who was the one who shot Justin’s
brother? . . . The reply to that question comes the next day, July 4, 2011, and again,
Rodriguez responds, ‘I don’t know. All I know is that they were some 13’s’ . . . .
[¶] . . . .
“Briana’s reply to the statement by Rodriguez . . . is, ‘I’m not going to tell no one,
brother.’ Rodriguez responds with a question, ‘What does he bang,’ b-a-n-g, ‘you
know?’[28] . . . . [¶] . . . . [A]nd then he responds, . . . “Well, I don’t know who I shot.
All I know is that they were in the car, and we shot those niggas,’ . . . ‘but I don’t know
who they—who are there. All I know is that they’re,’ quote, ‘13,’ unquote.
“There are other Facebook postings that begin on July 7 in which Rodriguez
apparently replies to some questions or statements put on the Facebook page by Paula
C[.], and . . . she says on July 7th in her posting, ‘I heard the police is looking for you.
Why?’ Question mark. ‘What did you do?’ Rodriguez replies, ‘I shot some niggas,’ . . .
28 The court believed “it could be reasonably inferred that the reference [i.e., ‘what
does he bang?’] is to the last mentioned person, Justin’s brother, who was referred to
apparently as one of the shooting victims.”

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and [Paula C.] responds, ‘What? Why? When?’ And Rodriguez responds, ‘Yes, I shot
some fools in Novato like five months ago. Just go to Marin IJ dot com and put
“Shooting in Novato.” ’
“The response from [Paula C.] comes five days later, on July 12th 2011, and she
responds or asks, ‘How many times did you shoot them?’ To which Rodriguez responds,
‘Three times each?’ Question mark. ‘Well, me and some other homie. Just don’t say
shit, okay?’
The court then discussed the requirements for admission of statements against
penal interest under Evidence Code section 1230, first stating that “for purposes of
deciding this[;] . . . sufficient evidence could be presented to show that Rodriguez is the
author of the statements, that is, he is the declarant. Secondly, that he is, Rodriguez,
unavailable, and also, that some of the portions, at least, of the declaration are against his
penal interest within the meaning of section 1230. But the analysis doesn’t end there.
The court then discussed a number of cases before continuing:
“And in examining these statements that are attributable to Rodriguez, as set forth
in the attachment to the brief on it, it is clear that Rodriguez is not consistent. He is
inconsistent regarding critical elements or components in his statements. . . . [¶] . . . [¶]
“[T]hese inconsistencies that I point out about whether it’s ‘I’ or ‘we’ and what he
knows I think are significant. For instance, the question I think that would be asked in
cross-examination is what’s the significance between the switch between ‘I’ and ‘we’?
And, also, if . . . ‘we’ includes ‘him,’ does that mean that multiple people who make up
the ‘we’ both or all fired one gun at different times, the same gun at the same time, or two
or more guns at the same or different times?
“And thirdly, what does he mean when he said, quote, ‘All I know is,’ unquote.
Why was the question mark put after the words ‘three times each’ when asked as to the
number of shots that were fired? And the fifth question, ‘Why did you shoot them?’ He
doesn’t really answer it, but he says, ‘Well me and some other homie.’ What does that
mean? Why was that the answer? Who is the other homie, and what did that person do?
And seventh, why did he ask, ‘What does he bang?’ Which I understand to mean what

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gang is he a member of? If he already knew that they were 13, why was he asking,
unless he didn’t think that Justin’s brother was one of those that were shot.
“So there are a number of questions that could be asked, and those are legitimate
in analyzing hearsay statements like this to see if they fall within the exception. As a
matter of fact, it was People v. Arceo [(2011) 195 Cal.App.4th 556 that] . . . observed,
quote, ‘When a court can be confident that the declarant’s truthfulness is so clear from
the surrounding circumstances . . . that the test of cross-examination would be of
marginal utility, the Sixth Amendment’s residual trustworthiness test allows the
admission of the declarant’s statements.
“Put somewhat differently, are the statements by Rodriguez so trustworthy, that
adversarial testing or cross-examination would add little to their reliability? And I think
the answer to that question is clearly in the negative, and since the focus of the 1231 [sic]
test is the reliability of it, I conclude that cross-examination, even on just the three
questions that I posed after my reading of all that—I think that would illuminate the
issues and be of significant value in showing the truth or falsity of the declarations; and
for that reason, I cannot be confident that his truthfulness is so clear from the surrounding
circumstances that the test of cross-examination would be of marginal utility. . . . [¶]
[T]hose statements and testimony related to them will be excluded.” The court therefore
excluded Rodriguez’s statement.
B. Legal Analysis
Evidence Code section 1230 provides in relevant part: “Evidence of a statement
by a declarant having sufficient knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . .
so far subjected him to the risk of . . . criminal liability, . . . or created such a risk of
making him an object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless he believed it to
be true.”
“ ‘The focus of the declaration against interest exception to the hearsay rule is the
basic trustworthiness of the declaration. [Citations.] In determining whether a statement

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is truly against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take into account not just the
words but the circumstances under which they were uttered, the possible motivation of
the declarant, and the declarant’s relationship to the defendant.’ [Citation.] ‘[E]ven
when a hearsay statement runs generally against the declarant’s penal interest and
redaction has excised exculpatory portions, the statement may, in light of circumstances,
lack sufficient indicia of trustworthiness to qualify for admission. . . . [¶] . . . We have
recognized that, in this context, assessing trustworthiness “ ‘requires the court to apply to
the peculiar facts of the individual case a broad and deep acquaintance with the ways
human beings actually conduct themselves in the circumstances material under the
exception.’ ” ’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584 (Geier),
overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305;
accord, People v. Duarte (2000) 24 Cal.4th 603, 611 [statement must be “sufficiently
reliable to warrant admission despite its hearsay character”]; People v. Arceo, supra, 195
Cal.App.4th at p. 577 [“ ‘[w]hen a court can be confident . . . “the declarant’s truthfulness
is so clear for the surrounding circumstances that the test of cross-examination would be
of marginal utility,” the Sixth Amendment’s residual “trustworthiness” test allows the
admission of the declarant’s statements’ ”].)
A trial court’s decision to admit or exclude evidence is a matter committed to its
discretion “ ‘ “and will not be disturbed 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.” ’ [Citation.]” (Geier, supra, 41 Cal.4th at p. 585.)
In Geier, our Supreme Court found no abuse of discretion in the trial court’s
refusal to admit, under Evidence Code section 1230, one of a declarant’s several
statements because “it failed to meet the exception’s threshold requirement of
trustworthiness” in that “the first and third statements were ‘virtually mutually
contradictory which indicated that . . . at least one of the versions was unreliable because
it was contradicted by another version.’ ” (Geier, supra, 41 Cal.4th at pp. 584, 585.)

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Here, the court articulated its concerns about the reliability of Rodriguez’s
Facebook statements. Although it found, for purposes of deciding the motion, that
Rodriguez was unavailable and his statements were against his penal interest, as is
required by Evidence Code section 1230, it also found that Rodriguez was “inconsistent
regarding critical elements or components in his statements,” and the statements were
therefore lacking in trustworthiness and reliability. (See People v. Duarte, supra, 24
Cal.4th at p. 611.) As the court explained, not only did Rodriguez shift between the use
of “I” and “we” in describing the shooting, several of his other comments raised
questions about what he had in fact done and what he actually knew about the details of
the shooting. These inconsistent and ambiguous statements included, for example, his
response to the question of how many times he had shot the victims, in which he stated,
“ ‘Three times each” with a question mark and then stated, “Well, me and some other
homie.’ ” He also responded to the question of who shot Justin’s brother, with “ ‘I don’t
know. All I know is that they were some 13’s’ ” and “ ‘Well, I don’t know who I shot.
All I know is that they were in the car, and we shot those niggas, but I don’t know who
are there. All I know is that they’re 13.’ ”
In light of these inconsistencies in Rodriguez’s statements, the court did not
exercise “its discretion in an arbitrary, capricious, or patently absurd manner” when it
concluded the statements were not sufficiently trustworthy to be admissible under
Evidence Code section 1230. (Geier, supra, 41 Cal.4th at pp. 584-585.) Indeed, the
court heard extensive argument on this issue, carefully considered the relevant law and
circumstances, and reached a reasonable conclusion, based on the facts of the case.29
29 The circumstances and content of Rodriguez’s statements—including his
unsolicited disclosure of the shooting to Briana D. and his suggestion to each girl that she
look up the shooting on a local news website—also suggest that he could have been
exaggerating his role in the shooting to impress these two teenage girls, which further
undermines the trustworthiness of his ambiguous statements. (See People v. Grimes
(2016) 1 Cal.5th 698, 719 [noting that “some offenders may attempt to enhance their
reputations by bragging about crimes they did not commit or exaggerating the extent of
their responsibility for a criminal act”]; cf. People v. Gonzales (2011) 52 Cal.4th 254, 292

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Accordingly, it did not abuse its discretion when it concluded that Rodriguez’s Facebook
statements, “ ‘in light of circumstances, lack[ed] sufficient indicia of trustworthiness to
qualify for admission.” (Geier , supra, 41 Cal.4th at pp. 584, 585; see also People v.
McCurdy (2014) 59 Cal.4th 1063, 1109 [no abuse of discretion in excluding extrajudicial
hearsay statements that were against unavailable declarant’s penal interest where trial
court reasonably found statements were unreliable].)30
VII. Stay of Martinez’s Gang Offense Sentence
Martinez contends punishment on the gang offense count should have been stayed
under section 654 since he was found guilty of attempted murder based on the same
underlying conduct. Respondent agrees.
At sentencing, both Gil’s and Martinez’s attorneys argued that section 654 barred
punishment on count 6, the gang offense conviction because the incident on which it was
based was inseparable from the attempted murders, and that sentencing on the gang
offense count should therefore be stayed. The prosecutor agreed that count 6 should be
stayed. The trial court, however, rejected the argument, stating: “[A]s to the count 6, I
don’t think that should be run either concurrently, nor do I believe [section] 654 prevents
its placement. The fact that that count was found to be true as to both defendants, that is
guilty verdicts were found, that count is not an element or essential to either count of
attempted murder, so I think it is appropriate to impose the punishment of three years as
to that count.”
[gang expert testified that gang members sometimes brag to other gang members and take
credit for crimes they did not commit: “ ‘It’s like embellishing. You know, I was there;
well, take credit for the shooting also’ ”].)
30 In light of our finding that the trial court did not abuse its broad discretion in
excluding the proffered evidence after finding that it was untrustworthy and unreliable,
we reject appellants’ claim that its exclusion violated their due process right to present a
defense. (See, e.g., People v. Cudjo (1993) 6 Cal.4th 585, 611 [“ ‘As a general matter,
the ordinary rules of evidence do not impermissibly infringe on the accused’s
[constitutional] right to present a defense’ ”].)

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Section 654, subdivision (a) provides in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” In People v. Mesa
(2012) 54 Cal.4th 191, 200 (Mesa), in which the defendant was convicted of both the
gang offense and other underlying felonies that occurred during the same incident, our
Supreme Court held that section 654 prohibited punishment for both the gang offense and
the substantive offense when both offenses were based on the same act. As the court
explained: “For each shooting incident, defendant’s sentence for the gang crime violates
section 654 because it punishes defendant a second time either for the assault with a
firearm or for possession of a firearm by a felon. ‘Here, the underlying [felonies] were
the act[s] that transformed mere gang membership—which, by itself, is not a crime—into
the crime of gang participation.’ [Citation.] . . . Section 654 applies where the
‘defendant stands convicted of both (1) a crime that requires, as one of its elements, the
intentional commission of an underlying offense, and (2) the underlying offense itself.’
[Citation.]” (Mesa, at pp. 197-198.)
In this case, the court instructed the jury that, for purposes of the gang offense,
“felonious criminal conduct” means “committing or attempting to commit any of the
following crimes: Attempted murder, assault with a deadly weapon, or shooting at an
occupied vehicle.” The jury found Gil and Martinez guilty of the gang offense and two
counts of attempted murder, which plainly arose from the same conduct. Therefore, as in
Mesa, section 654 prohibits punishment for both the gang offense and the attempted
murders. (See Mesa, supra, 54 Cal.4th at p. 200.)
The proper remedy is to stay the sentence on the conviction carrying the lesser
punishment. (See § 654.) Since the attempted murders formed the underlying bases for
the section 186.22, subdivision (a) conviction, and since the attempted murder
convictions have the longest term of imprisonment, the three-year term for the gang

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offense must be stayed under section 654 as to both appellants. (See Mesa, supra, 54
Cal.4th at pp. 200-201.)31
VIII. Martinez’s Proposition 57 Claim
As already noted, Martinez was 16 years old at the time of the present offenses.
The prosecutor filed the charges against him directly in adult criminal court, as was
permitted at the time under former Welfare and Institutions Code section 707,
subdivisions (b)(12) and (d)(1) and (2).32 On November 8, 2016, while this appeal was
pending, Proposition 57 became effective. Among other changes, Proposition 57
amended Welfare and Institutions Code sections 602 and 707 to eliminate direct filing by
prosecutors. (Prop. 57, §§ 4.1 & 4.2.) Under Proposition 57, certain categories of minors
can still be tried in criminal court,33 but only after a juvenile court judge holds a hearing
to consider various factors, including the minor’s maturity, degree of criminal
31 Although Gil did not raise this issue on appeal, “[t]he erroneous failure to stay
punishment under section 654 may be raised on the reviewing court’s own motion and
corrected by the appellate court. [Citation.]” (People v. Price (1986) 184 Cal.App.3d
1405, 1411, italics omitted; cf. People v. Le (2006) 136 Cal.App.4th 925, 931 [“ ‘It is
well settled . . . that the court acts “in excess of its jurisdiction” and imposes an
“unauthorized” sentence when it erroneously stays or fails to stay execution of a sentence
under section 654’ and therefore a claim of error under section 654 is nonwaivable”],
quoting People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) For this reason, and because
the issue has been fully briefed as to Martinez, we shall grant the same relief to Gil.
32 These former provisions of Welfare and Institutions Code section 707 became
law in 2000, pursuant to Proposition 21, the Gang Violence and Juvenile Crime
Prevention Act of 1998 (Proposition 21). Proposition 21 described the provisions’
purpose: “Dramatic changes are needed in the way we treat juvenile criminals, criminal
street gangs, and the confidentiality of the juvenile records of violent offenders if we are
to avoid the predicted, unprecedented surge in juvenile and gang violence. Californians
deserve to live without fear of violent crime and to enjoy safe neighborhoods, parks, and
schools. This act addresses each of these issues with the goal of creating a safer
California, for ourselves and our children, in the Twenty-First Century.” (Prop. 21,
§ 2(k); see also Prop. 21, § 26.)
33 These include all cases involving a minor who was 16 years of age or older at
the time of the offense or minors who were 14 or 15 years of age and are alleged to have
committed certain very serious crimes. (§ 707, subds. (a)(1) & (b).)

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sophistication, prior delinquent history, and potential for rehabilitation. (Welf. & Inst.
Code, § 707, subd. (a)(1) & (2).)
After we filed an unpublished opinion staying the sentence for the gang offense as
to both appellants but otherwise affirming the judgment, Martinez filed a petition for
rehearing in which he contended that Proposition 57 applies retroactively to his case.
Ordinarily, we will not address an issue raised for the first time in a petition for rehearing.
(See People v. Vela (2017) 11 Cal.App.5th 68, 72 (Vela), review granted July 12, 2017,
S242298.) “When good cause exists, however, we may exercise our discretion to address
issues first raised on rehearing.” (Alameda County Management Employees Assn. v.
Superior Court (2011) 195 Cal.App.4th 325, 338, fn. 10; accord, Vela, at p. 72.) Here,
we have granted the petition for rehearing and exercise our discretion to address whether
Martinez is entitled to relief under Proposition 57.
Martinez contends the provisions of Proposition 57 that eliminated direct filing are
retroactively applicable to him because his case is not yet final. The issue of Proposition
57’s retroactivity is currently pending before our Supreme Court. (People v. Superior
Court (Walker) (2017) 12 Cal.App.5th 687, review granted Sept. 13, 2017,
S243072; People v. Marquez (2017) 11 Cal.App.5th 816, review granted July 26, 2017,
S242660; Vela, supra, 11 Cal.App.5th 68, review granted July 12, 2017,
S242298; People v. Mendoza (2017) 10 Cal.App.5th 327, review granted July 12, 2017,
S241647; People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753, 774, review
granted May 17, 2017, S241231; People v. Cervantes (2017) 9 Cal.App.5th 569, review
granted May 17, 2017, S241323.) Three other recent published opinions also addressed
this issue, but review had not yet been granted as of the date of the filing of this opinion.
(See People v. Suarez (2017) ____ Cal.App.5th ____ [2017 WL 5988348]; People v.
Brewer (2017) ____ Cal.App.5th ____ [2017 WL 5507802]; People v. Pineda (2017) 14
Cal.App.5th 469, review filed Sept. 21 and Sept. 25, 2017 (Pineda).)
The appellate courts in all of these published opinions except Vela and Pineda
have concluded that Proposition 57’s elimination of direct filing authority is prospective
only, and does not apply to a juvenile convicted before it took effect, even if that

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juvenile’s case is not yet final. “But we exercise judgment not by counting the number of
published opinions on either side of an issue but rather by assessing the persuasiveness of
the reasons offered for reaching one outcome or another.” (Pineda, supra, 14
Cal.App.5th at p. 479.) As did the court in Pineda, we adopt the reasoning of the Vela
court and conclude Proposition 57 applies retroactively to cases pending on appeal. (See
Vela, supra, 11 Cal.App.5th at p. 71; Pineda, at p. 478.)
Because our Supreme Court will soon resolve the retroactivity question and
Division Three of the Fourth District in Vela and Division Five of the Second District in
Pineda have already analyzed it thoroughly, there is no reason to engage in an in-depth
discussion of the issue in this opinion. But we will note, first, that we agree with the
court in Vela that in the 16 years between the passage of Proposition 21 in 2000, and the
passage of Proposition 57, “there had been a sea change in penology regarding the
relative culpability and rehabilitation possibilities for juvenile offenders . . . .” (Vela,
supra, 11 Cal.App.5th at p. 75.) The stated purposes of Proposition 57 reflected this sea
change, with the ballot pamphlet itself describing those purposes: “ ‘ “Stop the revolving
door of crime by emphasizing rehabilitation, especially for juveniles”; and “Require a
judge, not a prosecutor, to decide whether juveniles should be tried in adult court.”
(Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, Public Safety and
Rehabilitation Act of 2016, § 2, p. 141.)” ’ ” (Vela, at p. 75.) Proposition 57 further
provided: “ ‘This act shall be liberally construed to effectuate its purposes.’ (Voter
Information Guide, Gen. Elec., supra, text of Prop. 57, Public Safety and Rehabilitation
Act of 2016, § 9, p. 146.) [¶] Thus, while the intent of the electorate in approving
Proposition 21 was to broaden the number of minors subject to adult criminal
prosecution, the intent of the electorate in approving Proposition 57 was precisely the
opposite. That is, the intent of the electorate in approving Proposition 57 was to broaden
the number of minors who could potentially stay within the juvenile justice system, with
its primary emphasis on rehabilitation rather than punishment.” (Vela, at pp. 75-76.)
Second, we agree with Vela that the rule of In re Estrada (1965) 63 Cal.2d 740,
744-745 (Estrada), under which a statute potentially reducing the penalty for an offense

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is presumed to apply to cases not yet final, is applicable here because when “a change in
the law allows a court to exercise its sentencing discretion more favorably for a particular
defendant, the reasoning of Estrada applies.” (Vela, supra, 11 Cal.App.5th at p. 79;
accord, Pineda, supra, 14 Cal.App.5th at pp. 481-483.)34 Under Proposition 57, the
possibility of a juvenile disposition instead of a prison sentence, which would almost
certainly result in less time in custody, effects a reduction in punishment that is covered
by the Estrada rule. (See Vela, at pp. 79-80; Pineda, at pp. 481-483.)
For these reasons, “we infer that the electorate intended the possible ameliorating
benefits of Proposition 57 to apply to every minor to whom it may constitutionally
apply,” including Martinez. (Vela, supra, 11 Cal.App.5th at p. 81; accord, Pineda, supra,
14 Cal.App.5th at pp. 482-483.) Having found that the statutory amendments under
Proposition 57 apply retroactively, we will conditionally reverse the judgment as to
Martinez and remand the matter for a transfer hearing before the juvenile court, at which
34 In Estrada, our Supreme Court set forth an exception to the general rule that
legislative changes operate prospectively: “When the Legislature amends a statute so as
to lessen the punishment it has obviously expressly determined that its former penalty
was too severe and that a lighter punishment is proper as punishment for the commission
of the prohibited act. It is an inevitable inference that the Legislature must have intended
that the new statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply. The amendatory act
imposing the lighter punishment can be applied constitutionally to acts committed before
its passage provided the judgment convicting the defendant of the act is not final. This
intent seems obvious, because to hold otherwise would be to conclude that the
Legislature was motivated by a desire for vengeance, a conclusion not permitted in view
of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p. 745; Vela, supra, 11
Cal.App.5th at p. 77.)
The Vela court also relied on People v. Francis (1969) 71 Cal.2d 66, 75-76, in
which the Supreme Court found the reasoning of Estrada applicable to a statutory
amendment that gave judges the discretion to reduce a crime from a felony to a
misdemeanor in some cases. (See Vela, supra, 11 Cal.App.4th at pp. 79-80; compare
People v. Brown (2012) 54 Cal.4th 314, 325 [finding reasoning of Estrada inapplicable to
an amended statute that increased rate at which prisoners could earn credits for good
behavior because statute did not alter penalty for any crime, but instead applied only to
future conduct].)

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“the juvenile court shall, to the extent possible, treat the matter as though the prosecutor
had originally filed a juvenile petition in juvenile court and had then moved to transfer
[Martinez’s] cause to a court of criminal jurisdiction. (§ 707, subd. (a)(1).” (Vela, at p.
82; accord, Pineda, at pp. 483-484.)
DISPOSITION
Gil’s and Martinez’s three-year consecutive sentence on count 6, the gang offense,
is stayed. The judgment is otherwise affirmed as to Gil. The judgment as to Martinez is
conditionally reversed, and the case is remanded to the juvenile court with directions to
conduct a transfer hearing pursuant to Welfare and Institutions Code section 707,
subdivision (a), if the prosecution moves for such a hearing, no later than 90 days from
the filing of the remittitur. If, at the transfer hearing, the court determines it would have
transferred Martinez to a court of criminal jurisdiction, then the judgment shall be
reinstated as of the date of that determination. If, at the transfer hearing, the court
determines it would not have transferred Martinez to a court of criminal jurisdiction, it
shall treat Martinez’s convictions and enhancements as juvenile adjudications as of the
date of that determination. The juvenile court shall then conduct a dispositional hearing
and impose an appropriate disposition under juvenile law within its usual time frame.

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_________________________
Kline, P.J.
We concur:
_________________________
Richman, J.
_________________________
Stewart, J.
People v. Martinez-Carreon et al. (A141670 & A141679)

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