P. v. Singh

Filed 10/2/17 P. v. Singh CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD RAVANESH SINGH et al.,
Defendants and Appellants.
H042511
(Monterey County
Super. Ct. Nos. SS131025A,
SS130357A, SS140786A,
SS141757A&B)
I. INTRODUCTION
Defendants Richard Ravanesh Singh and Jordan Luis Killens appeal following a
jury trial in which Singh was convicted of two counts of first degree murder (Pen. Code,
§ 187, subd. (a))1 and Killens was convicted of one count of first degree murder. As to
both defendants, the jury found true lying-in-wait special circumstances (§ 190.2,
subd. (a)(15)), and as to defendant Singh, the jury found true a multiple murder special
circumstance (id., subd. (a)(3)). As to each murder conviction, the jury also found true
allegations under section 12022.53 that defendants personally and intentionally
discharged a firearm and proximately caused great bodily injury or death. Both
defendants were sentenced to life without the possibility of parole for the murders, with
consecutive terms of 25 years to life pursuant to section 12022.53, subdivision (e).
1 All further statutory references are to the Penal Code unless otherwise indicated.

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On appeal, defendants claim the trial court made erroneous evidentiary rulings.2
They claim multiple instances of prosecutorial misconduct. They also challenge the
instruction on accomplice testimony (CALCRIM No. 334). Finally, in response to this
court’s supplemental briefing request, defendants claim and the Attorney General
concedes that there were pleading and proof errors with respect to the section 12022.53,
subdivision (e) enhancements as well as with respect to the section 12022.53,
subdivision (d) enhancements, which were imposed but stayed. For reasons that we
shall explain, we find no merit to defendants’ challenges to their convictions. However,
we agree the trial court must strike the section 12022.53, subdivisions (d) and (e)
enhancements, and therefore we will reverse the judgment and remand for resentencing.3
II. BACKGROUND
The victims, Demetrius Safford and Navneal Singh,4 were shot and killed on the
night of August 11, 2013, on the side of Dunbarton Road in Aromas. Defendant Singh
was convicted of both murders; defendant Killens was convicted of murdering only
Safford. The prosecution presented the testimony of two eyewitnesses to the murders:
Ronald Saxton and Eric Romero, both of who had gone to the scene of the murder with
defendants, believing they were going to participate in a home invasion robbery.
A. Relationships
Romero, one of the eyewitnesses, had known defendants since elementary school,
and he had known Saxton since high school. Saxton, the other eyewitness, had known
defendant Killens, who was nicknamed “Liggz,” since high school. Saxton had met
2 Defendant Killens expressly joins in the arguments made by defendant Singh.
3 Defendants’ appellate counsel have both filed petitions for writ of habeas corpus,
which this court ordered considered with the appeal. We have disposed of the habeas
petitions by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
4 Because defendant Singh shares the same last name with one of the victims
(Navneal Singh) and one of the witnesses (Reginald Singh), we use Navneal and
Reginald’s first names for clarity and not out of disrespect.

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defendant Singh through defendant Killens a few months before the Navneal and Safford
murders. Saxton and defendants would “hang out” and smoke marijuana together.
Saxton was the only one of the four who had a car—a black Lincoln.
Victim Navneal lived in Sacramento. Reginald Singh, defendant Singh’s brother,
became friends with Navneal in 2010. Reginald introduced Navneal to defendant Singh.
Defendant Singh referred to Navneal as “cousin,” even though they were not actually
related to each other.
On July 4, 2013, defendant Singh attended a birthday party for Reginald in
Sacramento. Romero and Saxton also attended the party. Navneal attended a later party
at a motel room with Reginald, defendant Singh, Romero, and Saxton.
B. The Shooting – Initial Witnesses
At about 9:47 p.m. on August 11, 2013, Yvonne Cortez and her husband, Luis
Sanchez, were driving home on Dunbarton Road. They saw two cars parked on the side
of the road and four people standing in between the cars. One car was a black Lincoln
LS. One of the cars had its hood open, and the other car had its trunk open. Two men
were facing the other two men.
A resident on Dunbarton Road heard 10 to 15 gunshots in rapid succession.
Another area resident heard about five shots followed by three or four more shots. A
third resident heard seven to nine shots.
At about 10:15 p.m., an off-duty deputy sheriff called 911 after seeing two bodies
on the ground behind a car on Dunbarton Road. Another deputy was dispatched to the
scene, where he saw the victims’ bodies on the ground behind a gold Toyota sedan. The
deputy observed bullet wounds to both victims’ heads and bullet holes in the Toyota.
C. Investigation
A detective was also dispatched to investigate the shootings. He located four brass
bullet casings at the scene. Another detective found two additional casings the next day.
A cell phone was found in the Toyota.

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Forensic evidence technician Victor Lurz processed the vehicle. There was
evidence of four bullet strikes to the vehicle, likely made by three bullets. A bullet was
found near the right rear panel, and another bullet was found inside the car trunk. About
a year later, metal detectors were employed at the scene of the murder. Three more
bullets were located at that time. The evidence—including a bullet found in Navneal’s
head and a fragment found in Safford’s head—indicated that at least eight bullets had
been fired.
An autopsy revealed that Safford had been shot in the back of the head. Bullet
fragments were found in his skull. Safford had abrasions on his face that could have been
caused by falling down and hitting his face on the ground. He also had a bullet wound in
his back. The bullet had exited his chest. He had a third bullet wound in his right foot.
A bullet had entered and exited one of Safford’s shoes.
Navneal had been shot three times. He had an entrance wound in the back of his
head, from which a bullet was extracted. A second bullet had entered his right lower
back and had exited his abdomen. The condition of the exit wound indicated that
Navneal had been pressing up against something or lying on the ground. A third bullet
had entered the back of Navneal’s leg just below the knee and exited his thigh.
Forensic scientist Adam Lutz analyzed five bullets from the murder. It was highly
likely that all five bullets, which were all full metal jacketed bullets, were fired from the
same gun. The bullets included one taken from Navneal’s skull. Lutz also analyzed
seven casings from the murder. He concluded it was likely that all of the casings came
from the same gun as well. However, he could not rule out the possibility that there had
been two guns because there was a potential eighth bullet strike.
Lutz had looked at the bullet fragments taken from Safford’s skull. He described
them as “very small lead fragments.” It was possible, although “speculative,” that the
bullet fragments found in Safford’s skull were from a different type of bullet—i.e., not a
full metal jacket bullet. Lutz had not analyzed the bullet fragments with magnification or

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“the appropriate lighting,” however, so he could not “give an opinion on that particular
issue.”
Defendant Singh did not attend Navneal’s funeral. Prior to the funeral, Reginald
asked defendant Singh if he had heard about Navneal’s murder. Defendant Singh said he
had no idea. At the funeral, Reginald got into an argument with his ex-girlfriend, Komal
Prasad, who had had an affair with Navneal. Reginald told Prasad that he knew what had
happened to Navneal and “who did it,” and he told her that Navneal had been with
defendant Singh on the night of the murders.
D. Interview and Arrests of Defendant Singh
Defendant Singh was interviewed in late February 2014 at the Sheriff’s
Department. He received the Miranda warnings5 and agreed to talk. When asked if he
knew about Navneal’s murder, defendant Singh said he had heard about it from his
brother Reginald, a few days after it happened. Defendant Singh had also seen news
reports about the murders. Defendant Singh referred to Navneal as his “cus” or cousin.
Defendant Singh acknowledged that Navneal and Stafford had given him a ride
from Sacramento to Monterey on the day of their murders. Defendant Singh said he
had been dropped off at a smoke shop on Lighthouse Avenue between 1:00 p.m. and
3:00 p.m., and that Navneal and Stafford had told him they were going to go back to
Sacramento. Defendant Singh then met up with a friend and went to Lovers Point, where
he and the friend smoked marijuana. Defendant could not name the friend or say whether
the friend was male or female. Defendant Singh denied communicating with Navneal,
through text messages or calls, after being dropped off.
Defendant Singh was arrested for the murders after his interview but was
subsequently released due to insufficient evidence. He was arrested again in July 2014.
5 Miranda v. Arizona (1966) 384 U.S. 436.

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E. Cell Phone Evidence
Cell phone and cell tower records showed that defendant Singh and Navneal had
communicated at about 12:15 p.m. on the day of the murders and that they had traveled
from Sacramento to Monterey at around the same time that day.
At 7:23 p.m., defendant Singh’s phone was in Marina. At 7:57 p.m., he called
Navneal while in Seaside. He made additional calls from Seaside and then received
calls from Navneal at 8:11 p.m. and 8:22 p.m. Subsequent calls to and from Navneal
indicated that defendant Singh was moving north into Castroville and then east towards
Salinas. Defendant Singh received a call from Navneal at 9:25 p.m., a call from Saxton
at 9:33 p.m., and a call from Romero at 9:41 p.m. At 9:42 p.m., defendant Singh’s phone
made an outgoing call that went through a tower on Dunbarton Road. He also received a
call that went through the Dunbarton Road tower at 9:45 p.m. At 10:08 p.m., defendant
Singh made a call that went through the Dunbarton Road tower, but by 10:11 p.m., he
was moving south. By 10:19 p.m., he was in Salinas, and at 10:34 p.m., he was in
Marina.
Saxton called Romero at 7:18 p.m. on the day of the murders. Saxton’s calls
around that time were made from Seaside and Marina, as he was moving north. At
9:33 p.m., Saxton called defendant Singh from a location in Salinas.
Romero, too, was in the Seaside area at 7:18 p.m. on the day of the murders.
Romero received several calls from defendant Singh between 8:00 p.m. and 8:14 p.m.,
while Romero was still in Seaside. Romero’s phone made a call through a tower on
Crazy Horse Canyon Road in Salinas at 9:41 p.m., and it received a call from a tower on
Dunbarton Road in Aromas at 9:42 p.m. Romero’s phone next made a call from Salinas
at 10:25 p.m.
Between June 3, 2013 and August 11, 2013, defendant Singh and Navneal had
made 166 calls to one another. After 10:15 p.m. on the day of the murders, there were no
calls between them.

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Defendant Singh got a new cell phone number three days after the murder.
Saxton’s last phone call to defendant Singh was on September 17, 2013.
Kayana Jackson was the girlfriend of defendant Killens in August 2013. In
September 2013, defendant Killens sent Jackson a text message: “You mean a lot to me.
But remember when I told you I did something and I wish I could tell you?” Jackson
wrote back, asking what defendant Killens had done. Defendant Killens responded:
“Something that might fuck up our relationship. All I’m saying is what I did, I could be
in jail for life and you don’t deserve that.” Jackson asked defendant Killens to tell her
what he had done, but Killens indicated he would not do so over the phone.
In text messages the following day, defendant Killens again indicated he might tell
Jackson what he had done. He also indicated that it might be “too real” for Jackson to
understand.
About a week later, defendant Killens told Jackson he had shot and killed
someone. Defendant Killens showed Jackson a gun that was in his bedroom dresser. The
gun was a semiautomatic, “silver grayish” and “palm size.”
Jackson was interviewed by the police in August 2014. Jackson told the police
that defendant Killens had not talked to her about the murders. Upon further questioning,
Jackson admitted that defendant Killens had told her he had shot or killed someone.
F. Probation Search of Defendant Killens
On August 5, 2014, defendant Killens was under the supervision of the probation
department with a search and seizure waiver. Probation officers conducted a search of
his parents’ home on that date. They examined defendant Killens’s cell phone, including
his text messages.
One outgoing text message to Jackson read, “I was taking a nap and my phone
kept going off. They went to my granny’s and said I had a warrant for the murder of two
men. Delete these messages, all of them.” Another outgoing message to Jackson read,
“Na. That’s stupid. All the freedom they’re going to take from me. I’m staying out as

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long as I can.” In response, Jackson asked, “Are they trying to get you for 25 years to
[life]?” Defendant Killens’s reply said, “Maybe. I don’t know. Up to the judge.”
The probation officers also opened up Facebook on defendant Killens’s cell
phone. An October 10, 2013 Facebook post by defendant Killens said, “I only fucc with
a few niggas and all of em shoot niggas.” An October 14, 2013 post by defendant Killens
read, “My nigga said I got to have weed to fucc with him.” Defendant Killens had
“tagged” defendant Singh in that post as well as another one, dated October 13, 2013,
which linked to a YouTube video. Defendant Singh had also tagged defendant Killens in
a Facebook post dated November 6, 2013, which said, “just stop it my nigga it aint coo
lol.” On December 11, 2013, defendant Killens had posted, “Ask [defendant Singh] he’ll
tell you everything you need to know when I go in. Lol.” On June 16, 2014, defendant
Killens had tagged defendant Singh in a video post, which said, “This finna be . . . fathers
day …… aint nobody was trying to dance with her she was humping everything but a
nigga….” Defendant Killens had also accessed a Facebook link regarding the murders.
An August 5, 2014 Facebook message from defendant Killens to a person named
Tran read, “I know shits crazy.” The reply read, “He got caught with the same struzy you
had?” Defendant Killens responded, “Sum like that.” Tran’s response asked, “Is he
gonna drop a dime on you? Ha ha. Just kidding.” The reply message from defendant
Killens stated, “He already did.” Another outgoing message from defendant Killens read,
“It’s bad for me right now. I’m trying to get to Hawaii.” Other outgoing Facebook
messages indicated that defendant Killens was “going to try to slide” (meaning leave) and
that he needed to get out of the country.
Defendant Killens’s cell phone also contained news articles regarding the arrest of
defendant Singh for the murders of Navneal and Safford. The probation officers
confiscated the cell phone.

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G. Saxton’s Testimony
A detective located a black Lincoln LS at an apartment complex in Seaside on
August 13, 2013. The Lincoln was registered to Ronald Saxton, who testified at trial
under a grant of immunity.
A few weeks before the Navneal/Safford murders, Saxton was driving a car with
defendant Singh. Saxton was arrested for possessing a gun, and he pleaded guilty, but at
trial he claimed that the gun had actually belonged to defendant Singh.
On August 11, 2013, Saxton received a call from defendant Singh. Defendant
Singh said he was coming down from Sacramento with his cousin and a friend. Saxton
later exchanged text messages with defendant Singh, in which they discussed a plan to
rob a house in Prunedale. Defendant Singh said a friend of his lived in the house and that
there would be money and gold. Defendant Singh wanted Saxton to be the driver, and he
wanted defendant Killens to come.
Saxton picked up defendants from the home of defendant Killens’s grandmother.
They then picked up Romero. While they were stopped for gas, defendant Killens said
he had a gun and showed Saxton that he was carrying a gun, which appeared to be a
revolver. Defendant Singh talked about meeting up with his cousin and a friend, who
would be helping with the robbery. Defendant Singh said his cousin had a gun.
Defendant Singh directed Saxton to drive to Prunedale. They contacted a car that
was stopped on a back road. Defendant Singh got out of Saxton’s car and went inside the
other car for a while, then returned to Saxton’s car. Both cars then drove off, with
Saxton’s car in the lead and defendant Singh directing him where to go. On another back
road, Saxton pulled the car over. The other car parked in front of him. Defendants and
Romero exited Saxton’s car, and two people—Navneal and Safford—got out of the other
car.

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Saxton watched the group talk and smoke cigarettes for a while. Romero then
returned to Saxton’s car. The others continued to talk. Navneal then took out a gun and
passed it to defendant Singh.
After about 10 to 12 minutes, the group shook hands, and defendants walked back
towards Saxton’s car. Defendants then turned around and shot at Navneal and Safford,
whose backs were turned. Navneal and Safford “dropped.” Saxton heard about eight
shots and believed that both defendants fired guns. Saxton described the gun that
defendant Singh had used as a black gun with a big barrel—likely a .45-caliber.
After the shooting, defendants got back into Saxton’s car. Defendant Singh told
Saxton, “Go before I leave you here, too.” Saxton drove defendants to Romero’s
neighborhood, where defendants and Romero got out of the car. The others instructed
Saxton not to say anything.
Saxton stopped hanging out with defendant Singh after the murders, but he
continued to have telephone contact with defendant Singh, in order to “keep it cool.”
Saxton was arrested and interviewed four times about the murders. During the
first three interviews, he did not tell the truth because he was scared of defendants. In the
first interview, he denied having seen Navneal or Safford and denied having been to
Dunbarton Road. In the second interview, he admitted having driven defendant Singh to
Dunbarton Road, saying he had given him a ride to a party. After Saxton was arrested
and booked for being an accessory to murder, he told the police he had given defendant
Singh a ride to meet his cousin on Dunbarton Road, and he told the police that defendant
Singh had shot two people. After the police told Saxton that Romero was in custody,
Saxton admitted that Romero had been present. Saxton later acknowledged that he had
also driven defendant Killens to the scene of the murders, but he told the police that only
defendant Singh had shot the victims. At the time, defendant Killens was still out of
custody. Eventually, after hearing that both defendants were in custody, Saxton gave

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another statement, in which he told the truth: that both defendants had shot at the
victims.
According to Monterey County Sheriff’s Detective Martin Opseth, Saxton’s first
interview was on July 22, 2014. Saxton admitted knowing defendant Singh and Romero,
and he admitted dropping defendant Singh off on Dunbarton Road, saying he believed
defendant Singh was going to a party.
H. Romero’s Testimony
Romero was in a witness relocation/protection program when he testified at trial.
On the day of the murders, Romero went to go hang out with defendants and
Saxton. The other three picked Romero up, and at some point they met up with another
car, which started following them. Both cars pulled over, and defendant Singh got into
the other car. Both cars then began driving again, with defendant Singh giving Romero
directions over the phone, which Romero relayed to Saxton, the driver. Both cars
eventually pulled off on Dunbarton Road. Saxton parked behind the other car, and
everyone exited the cars except Saxton. Romero realized he had met one of the men
from the other car about a month earlier, in Sacramento.
Romero, defendants, and the victims stood in a circle, smoking, outside of the
cars. Defendants and the victims discussed plans for a home invasion robbery. Safford
then pulled out a gun—a black semiautomatic, showed it to the others, and handed it to
defendant Singh. Defendant Singh checked the clip for bullets, then cocked the gun.
Defendant Killens then pulled out a silver revolver and showed it to everyone. At that
point, Romero returned to Saxton’s car.
Romero saw defendants shake hands with the victims as if they were saying
goodbye. The victims then began walking towards their car. Defendants then pulled out
guns and shot the victims. The victims both “dropped,” and defendants returned to
Saxton’s car.

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Defendant Singh came back to Romero’s house after the murders. Defendant
Singh left after five or ten minutes, but returned later to spend the night. When defendant
Singh returned, he no longer had the gun, but he had a “lump sum of money.”
Romero continued to have contact with defendant Singh following the murders but
slowly disassociated with him. Romero had heard defendants “plotting on” Saxton after
Saxton had “cut [them] off,” and he was scared. Romero acknowledged, however, that
he was with defendant Singh in March of 2014 when the police stopped a car in which
they were riding. Romero was in possession of ecstasy and heroin at the time, leading to
drug possession charges.
Romero was interviewed twice by the police. During his first interview, on
July 31, 2014, Romero told the police that he and Saxton had picked up defendant Singh
from Dunbarton Road. Romero denied being present during the murders or bringing
defendant Singh to the site, and he denied knowing the victims. Romero did not name
defendant Killens: he was scared of defendant Killens, who was still out of custody.
During his second interview, on August 8, 2014, Romero named both defendants.
Defendant Killens was not in custody yet; he was arrested three days later. No promises
were made to Romero, but Detective Opseth did say he would try to help Romero by
talking to the District Attorney about his pending cases. At the time, Romero had
pending charges involving possession of stolen property and possession for sale of
narcotics. The charges were dismissed after Romero testified at the preliminary hearing.
At trial, Romero admitted that some of his testimony at the preliminary hearing
had not been “the full truth.” He had “misremembered.” For instance, he had previously
testified that the group went to Salinas before going to Dunbarton Road, but he was no
longer sure that was accurate.

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I. Defense Witnesses
Defendant Killens’s mother testified that defendant Killens lived with her and his
grandmother in Seaside during August 2013. They moved to another Seaside residence
in October 2013.
Shannon Langley was close friends with Safford and was living with him in
August 2013. On August 11, 2013, Safford left the house, then came back with Navneal.
Safford took his .45-caliber gun with him when he and Navneal later drove away.
J. Charges, Verdicts, and Sentencing
Defendants were both charged with two counts of first degree murder (§ 187,
subd. (a)). The second amended information alleged lying-in-wait special circumstances
(§ 190.2, subd. (a)(15)) and multiple murders special circumstances (id., subd. (a)(3)),
and it alleged that each defendant had personally used and intentionally discharged a
firearm and proximately caused great bodily injury or death, with references to
section 12022.53, subdivisions (b), (c), (d), and (e).
Defendant Singh was convicted of both murders, but Killens was convicted only
of the Safford murder. The special circumstance allegations as to each murder conviction
were found true. The verdict forms reflected that the jury found true allegations that each
defendant personally and intentionally discharged a firearm under section 12022.53,
subdivision (c) and allegations that each defendant personally and intentionally
discharged a firearm, causing great bodily injury and death, “within the meaning of Penal
Code Sections 12022.53(d) and 12022.53(e).” Both defendants were sentenced to life
without the possibility of parole for the murders with consecutive terms of 25 years to life
for the section 12022.53, subdivision (e) allegations. The trial court imposed terms of
20 years for the section 12022.53, subdivision (c) allegations and terms of 25 years to life
for the section 12022.53, subdivision (d) allegations, but stayed those terms.

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III. DISCUSSION
A. Admission of Facebook Posts by Defendant Killens
Defendants contend the trial court erred by allowing the prosecution to introduce
the following six Facebook posts: (1) the October 10, 2013 post in which defendant
Killens stated, “I only fucc with a few niggas and all of em shoot niggas;” (2) the
October 14, 2013 post in which defendant Killens had “tagged” defendant Singh and
stated, “My nigga said I got to have weed to fucc with him;” (3) the October 13, 2013
post that again tagged defendant Singh and linked to a YouTube video; (4) defendant
Singh’s post dated November 6, 2013, in which he had tagged defendant Killens and
written, “just stop it my nigga it aint coo lol;” (5) the December 11, 2013 post by
defendant Killens stating, “Ask [defendant Singh] he’ll tell you everything you need to
know when I go in. Lol;” and (6) the June 16, 2014 post in which defendant Killens had
tagged defendant Singh in a video and stated, “This finna be . . . fathers day …… aint
nobody was trying to dance with her she was humping everything but a nigga….”
1. Proceedings Below
In limine, the prosecution moved to admit two of defendant Killens’s Facebook
posts to show the close friendship between defendants. The two posts included the
October 14, 2013 post in which defendant Killens had “tagged” defendant Singh and
referenced “weed,” and the October 13, 2013 post in which defendant Killens again
tagged defendant Singh and linked to a You Tube video.
Defendant Killens moved to exclude all Facebook posts. He argued that the
potential prejudice of the posts would substantially outweigh “any minimal probative
value.”
At the hearing on the motion, the prosecutor indicated he was seeking to introduce
additional Facebook posts. He again argued that the posts were relevant because they
showed defendants’ association with one another. Defendant Killens asserted that some

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of the posts were actually rap lyrics from a group called Niggas and argued that the posts
had no probative value.
The trial court found that the October 10, 2013 Facebook post referencing
shooting was “relevant and admissible,” noting that the post was made “close enough in
time to the shootings” to show defendant Killens’s state of mind. The trial court found
that the October 13, 2013 post in which defendant Singh was “tagged” also showed the
relationship between defendants; the court also found that the post’s reference to “weed”
was not “offensive” and did not imply that defendants were engaged in drug sales. The
trial court likewise found that defendant Singh’s November 6, 2013 post (tagging
defendant Killens) and defendant Killens’s December 11, 2013 and June 16, 2014 posts
(referencing and tagging defendant Singh) were relevant to show defendants’ association.
2. Applicable Law
Evidence Code section 1101, subdivision (a) provides: “Except as provided in this
section and in Sections . . . 1108, and 1109, evidence of a person’s character or a trait of
his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion.”
Evidence Code section 1101, subdivision (b) provides: “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident, or whether a
defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act
did not reasonably and in good faith believe that the victim consented) other than his or
her disposition to commit such an act.”
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its

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admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”
“[A]n appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence.” (People v. Waidla (2000) 22
Cal.4th 690, 723 (Waidla).)
3. Analysis
Defendant Killens contends the Facebook posts amounted to bad character
evidence and thus should have been excluded pursuant to Evidence Code sections 1101
and 352. He concedes the Facebook posts were “arguably relevant” to show defendants’
association with each other, but he contends the posts were cumulative of other evidence.
Defendant Killens asserts that the posts contained irrelevant “offensive and inflammatory
language” that painted defendants as “gun[-]toting drug dealers or users, who denigrated
women.” Defendant Killens contends the trial court’s error in admitting the Facebook
posts amounted to a violation of his federal constitutional rights to due process and a fair
trial.
Defendant Singh contends the meaning of the Facebook posts was “too uncertain
to be admissible” and that the posts invited the jury to speculate about their meaning. He
contends that one post in particular suggested that defendant Singh knew something
about the murders: the December 11, 2013 post by defendant Killens stating, “Ask
[defendant Singh] he’ll tell you everything you need to know when I go in. Lol.”
As an initial matter, we reject defendant Killens’s argument that the Facebook
posts were inadmissible under Evidence Code section 1101, subdivision (a). The
Facebook posts were explicitly offered to show the association between defendants. The
posts were not “offered to prove [defendants’] conduct on a specified occasion.” (Evid.
Code, § 1101, subd. (a).) Moreover, none of the Facebook posts resulted in the
introduction of evidence of prior bad conduct, which is inadmissible to prove criminal
disposition under Evidence Code section 1101, subdivision (a). Although Killens

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referenced other people “shoot[ing] niggas” and referred to “weed,” Killens did not
indicate that he had ever shot someone or that he had ever used “weed.” Thus, “[t]he
prohibition on the use of ‘other crimes’ evidence to prove character is not implicated
here.” (See People v. Smith (2015) 61 Cal.4th 18, 48.)
The Facebook posts were also not inadmissible simply because other evidence
presented at trial ultimately helped establish the association between defendants. (See
People v. Heard (2003) 31 Cal.4th 946, 975 [“ ‘it is immaterial for purposes of
determining the relevance of evidence that other evidence may establish the same
point’ ”]; see also People v. Lang (1989) 49 Cal.3d 991, 1015 [when ruling on a motion
in limine, trial court relies on the parties’ representations regarding what issues will be
disputed], abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
As the Attorney General points out, the other evidence establishing defendants’
association came primarily from Saxton and Romero, whose testimony was attacked by
defendants as unreliable. Thus, the Facebook posts had substantial probative value.
The trial court reasonably found the risk of undue prejudice from the Facebook
posts did not substantially outweigh the posts’ probative value under Evidence Code
section 352. “Evidence is substantially more prejudicial than probative [citation] if . . .
it poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the
outcome’ [citation].” (Waidla, supra, 22 Cal.4th at p. 724.) “ ‘The “prejudice” referred
to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little effect on
the issues.’ ” (People v. Karis (1988) 46 Cal.3d 612, 638.) Although the Facebook posts
contained the terms “nigga” and “fucc,” our Supreme Court has observed that “[j]urors
today are not likely to be shocked by offensive language.” (People v. Edelbacher (1989)
47 Cal.3d 983, 1009.) Likewise, in light of the California electorate’s legalization of
marijuana for both medical and recreational purposes, the references to “weed” were not

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likely to inflame the jury. (See Prop. 215, as approved by voters, Gen. Elec. (Nov. 5,
1996); Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016).)
Finally, we do not agree with defendant Singh’s claim that the Facebook posts
should have been excluded because the jury might have speculated about their meaning
and found that the December 11, 2013 post suggested defendant Singh knew something
about the murders. Nothing in the posts provided a basis for the jury to find that they
constituted admissions or accusations of guilt. The December 11, 2013 post by defendant
Killens was several months after the shooting and many months before the probation
search that led to Killens’s arrest.
We conclude the trial court did not abuse its discretion by admitting the Facebook
posts.
B. Admission of Facebook Messages Between Killens and Tran
Defendant Singh challenges the admission of the messages exchanged via
Facebook between defendant Killens and Tran.6 As noted above, the messages were
exchanged on August 5, 2014, shortly after the arrest of defendant Singh in July 2014.
The messages referenced “shit[]” being “crazy,” someone getting “caught with the same
struzy you had,” the fact that someone had “drop[ped] a dime” on defendant Killens, and
the fact that Killens was trying to get to Hawaii or out of the country because things were
“bad” for him.
Defendant Singh contends these messages falsely suggested that defendant Singh
had implicated himself and defendant Killens. He argues the messages were inadmissible
hearsay and that their admission violated his Fourteenth Amendment right to due process
and a fair trial.
6 Tran was identified by his full name, Clinton Tran, in the prosecution’s in limine
motion, where he was described as an “unknown person named ‘Clinton Tran.’ ” At trial,
Tran was referred to as “a person by the name of Tran.”

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1. Proceedings Below
The prosecution’s motions in limine included a motion to admit the text messages
and Facebook messages found on defendant Killens’s cell phone during the probation
search, which included the messages he had exchanged with his girlfriend, Jackson, and
Tran. In addition to the Facebook messages that were admitted at trial, the prosecution
originally sought to introduce four messages that preceded those admitted at trial. The
messages began with one from Tran to defendant Killens: “has he called u back, & your
boy rich in tha news.” The next message was from defendant Killens to Tran: “Oh yup.”
Defendant Killens also wrote, “[S]end me the link.” Tran responded, “they caught him
on the 2 murders or some shit.”
Both defendants objected to admission of all the Facebook messages between
defendant Killens and Tran. Defendant Killens filed a motion in limine to exclude all
data obtained from his Facebook account. Defendant Singh objected to the admission of
any statements by defendant Killens on the grounds that such statements were hearsay as
to him and that their admission would constitute a confrontation clause violation unless
defendant Killens and Tran testified.
The prosecutor argued that the messages from Tran were not being offered for
their truth but rather to give context to defendant Killens’s messages. The prosecutor
subsequently told the trial court he was no longer seeking to introduce the first four
messages because they were from “another person,” not Tran.
The trial court found that admission of the Facebook messages would not violate
defendant Singh’s confrontation clause rights under Crawford v. Washington (2004)
541 U.S. 36 (Crawford) or Bruton v. United States (1968) 391 U.S. 123 (Bruton) and
People v. Aranda (1965) 63 Cal.2d 518 (Aranda).7 The trial court further found that the
7 Although defendant Singh briefly discusses Crawford, Bruton, and Aranda in his
briefs, he does not make a confrontation clause argument on appeal.

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messages were admissible under the hearsay exceptions for adoptive admissions and
declarations against interest. The trial court found that the statements were reliable in
light of the “surrounding circumstances,” which included the fact they were made close
to the time of defendant Singh’s arrest.
During the jury instruction conference, counsel for defendant Singh requested the
trial court preclude the prosecutor from arguing that defendant Singh “did drop a dime
on somebody.” The prosecutor indicated he would not make such an argument. The
prosecutor thereafter told the jury that “drop a dime” meant snitching, that a “struzy” was
a gun, and that the “drop a dime” message was a reference to defendant Singh.
2. Applicable Law
The hearsay exception for adoptive admissions is set forth in Evidence Code
section 1221, which provides: “Evidence of a statement offered against a party is not
made inadmissible by the hearsay rule if the statement is one of which the party, with
knowledge of the content thereof, has by words or other conduct manifested his adoption
or his belief in its truth.”
The hearsay exception for declarations again interest is set forth in Evidence Code
section 1230, which provides: “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, was so far contrary to the
declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or
criminal liability, or so far tended to render invalid a claim by him against another, 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
is truly against interest within the meaning of Evidence Code section 1230, and hence is

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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.]” (People v.
Geier (2007) 41 Cal.4th 555, 584 (Geier).) Thus, “ ‘[e]ven when a hearsay statement
runs generally against the declarant’s penal interest . . . , the statement may, in light of
circumstances, lack sufficient indicia of trustworthiness to qualify for admission.’ ”
(Ibid.) “ ‘[I]n 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.]” (Ibid.)
3. Analysis
Defendant Singh first argues that the Killens/Tran Facebook messages were not
admissible once the prosecution indicated it would not be introducing the first four
messages, which referenced defendant Singh being “in tha news” and having been
“caught . . . on the 2 murders.” Defendant Singh argues that without the first four
messages, the remaining messages could not have any meaning that was relevant to
disputed issues at trial. However, the jury could rationally have inferred that the
messages referenced defendant Singh’s arrest for the murders. The jury knew that
defendant Singh had been rearrested for the murders in July 2014 and that the messages
were exchanged shortly thereafter, on August 5, 2014. Thus, the jury could rationally
infer that the references to someone being caught with a “struzy” (or “streezy”) and
someone having “drop[ped] a dime” on defendant Killens were references to defendant
Singh.
Defendant Singh next argues that the Facebook messages should not have been
admitted because the jury would not have been aware of the meaning of the word
“streezy” (or “struzy”) or the phrase “drop a dime.” However, defendant Singh did not
object on this ground below, thereby forfeiting this claim on appeal. (See People v.

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Lindberg (2008) 45 Cal.4th 1, 48 [defendant “failed to object specifically on the ground
he now advances and thereby deprived the trial court of an opportunity to make a fully
informed ruling on the issue”].) In fact, the trial court appeared to believe it was common
knowledge that “drop a dime” meant “to implicate,” and defendant Singh’s trial counsel
explicitly argued that the jury would understand that “struzy” meant a gun and that “drop
a dime” meant “snitched.”
Defendant Singh next argues that the prosecution failed to meet the requirements
of the declaration against interest exception because there was no showing that Tran was
unavailable. However, the record is clear that Tran’s messages were admitted as
adoptive admissions by defendant Killens, not as declarations against interest.
Defendant Singh also argues that the adoptive admissions exception did not apply
to Tran’s messages, because Tran indicated he was “just kidding” when he asked, “Is he
gonna drop a dime on you?” However, the relevant consideration here is whether
defendant Killens, “by words or other conduct,” adopted Tran’s statements. (Evid. Code,
§ 1221.) Even if Tran was “kidding,” the trial court reasonably found that defendant
Killens’s response—“He already did”—was an adoption of the truth of Tran’s statement.
Defendant Singh also points out that there was no evidence at trial showing that
defendant Singh in fact implicated (i.e., “drop[ped] a dime on”) defendant Killens. He
contends the trial court therefore erred in finding that the statement was reliable. As a
reviewing court, we generally “ ‘focus[] on the ruling itself and the record on which it
was made,’ ” not on “ ‘subsequent matters.’ ” (People v. Berryman (1993) 6 Cal.4th
1048, 1070, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800, 822-823
& fn. 1 (Hill).) Moreover, the trial court did not need evidence that defendant Singh did
implicate defendant Killens in order to find that the Facebook messages were reliable.
The trial court needed to find only that the statements were trustworthy in light of “ ‘the
circumstances under which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.’ [Citation.]” (Geier, supra, 41 Cal.4th

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at p. 584.) Here, the statements were made in a private communication, close in time to
defendant Singh’s arrest. Taken together, the statements showed defendant Killens was
admitting culpability in the crimes for which defendant Singh had been arrested. On this
record, the trial court reasonably found that the statements were reliable.
Defendant Singh next contends that the Facebook messages constituted
inadmissible bad character evidence because the jury might have inferred that the
messages referred to another gun incident. We do not agree that this was a reasonable
inference. As already pointed out, the message exchange occurred close in time to
defendant Singh’s arrest for the Navneal and Singh murders. Moreover, the prosecutor
argued that the Facebook messages referenced defendant Singh. There was no basis upon
which the jury could have found that the messages referenced a separate crime or bad act.
Defendant Singh’s final argument concerning the Facebook messages is that their
admission violated due process because the prosecutor used the messages to misrepresent
facts—i.e., to lead the jury believe that defendant Singh had implicated himself in the
murders. However, the prosecutor never argued that defendant Singh confessed or
implicated Killens. Moreover, at most the Facebook messages suggested that defendant
Singh did implicate defendant Killens; they did not suggest that defendant Singh had
implicated himself in the murders.
In sum, the trial court did not abuse its discretion by admitting the Facebook
messages exchanged by defendant Killens and Tran.
C. Restriction on Cross-Examination of Romero
Defendant Killens contends the trial court erred by restricting his cross-
examination of Romero—specifically, by not allowing defendant Killens to elicit
evidence that defendant Singh had a gun during the vehicle stop that led to Romero’s
drug possession charges. Defendant Killens argues that the trial court abused its

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discretion and violated his federal constitutional rights to confront witnesses against him,
to present a defense, and to due process.8
1. Proceedings Below
The prosecution’s trial brief included a motion to admit evidence that defendant
Singh was found in possession of a .380-caliber gun on March 28, 2014. The prosecution
argued that the evidence would show that defendant Singh had disposed of the murder
weapon. The prosecution also noted that the incident led to charges against Romero that
were dismissed in exchange for his testimony at the preliminary hearing, and that the
defense might seek to introduce the incident.
Before Romero testified, defendant Killens noted that Romero was likely to testify
that he was scared of defendant Singh after the murders and had stopped hanging around
with defendant Singh. Defendant Killens requested the trial court permit him to impeach
Romero with evidence that on March 28, 2014, Romero and defendant Singh were
together in the back seat of a vehicle that was stopped by police due to an expired
registration. Upon smelling marijuana, the police searched the vehicle and found drug
paraphernalia, ecstasy, and heroin. The police also found a loaded .380-caliber pistol in
defendant Singh’s possession.
Defendant Killens argued that the incident would “call[] into some question the
veracity” of Romero’s claim of being afraid of defendant Singh. The trial court put off
ruling on the request.
On cross-examination, Romero acknowledged he was with defendant Singh when
he was arrested for “dealing drugs.” At that point, the trial court held a hearing outside
8 In a supplemental opening brief, defendant Killens acknowledges that he did not
object in the trial court on these federal constitutional grounds. He contends he is not
precluded from raising the constitutional claims on appeal, but he also contends his trial
counsel’s failure to make those arguments in the trial court constituted ineffective
assistance of counsel.

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the presence of the jury. Defendant Killens asked the trial court to allow him to “go into
everything” about the incident, including the fact that defendant Singh was in possession
of a loaded firearm.
Defendant Singh opposed introduction of the March 28, 2014 incident. He argued
that his possession of the gun did not prove he had possessed or disposed of another gun
on another occasions and that the evidence was more prejudicial than probative.
The prosecutor argued that the March 28, 2014 incident was relevant to show why
Romero remained in fear of defendant Singh. Defendant Killens argued that the evidence
would impeach Romero’s testimony that he was afraid of defendant Singh because it
showed that rather than trying to “distance himself” from defendant Singh, he was still
“running around committing new criminal activity” with him.
Romero testified outside the presence of the jury, stating that he had initially been
unaware that defendant Singh had a gun on March 28, 2014. When the police stopped
their vehicle, defendant Singh had become nervous and had asked Romero to hold his
gun, pulling it out of his pocket. Romero had not known the gun was loaded. Romero
had seen defendant Singh with a gun on numerous prior occasions, but he was surprised
that defendant Singh had a gun that day.
In ruling on the admissibility of the March 28, 2014 incident, the trial court noted
that it was “considering the impact” to both defendants. The trial court noted that
Romero had already been impeached with prior statements and prior testimony, with
“deals and dismissals of cases,” with the fact that he had received money from the
witness relocation program, with felony charges, and with his continued association with
defendant Singh following the murders. The trial court found that the March 28, 2014
incident would be prejudicial to defendant Singh but had “insignificant probative value”
in terms of impeaching Romero.

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2. Applicable Law
“A trial court may restrict defense cross-examination of an adverse witness on the
grounds stated in Evidence Code section 352. [Citation.]” (People v. Whisenhunt (2008)
44 Cal.4th 174, 207 (Whisenhunt).) Under Evidence Code section 352, the trial court has
discretion to exclude evidence if its probative value would be substantially outweighed
by the probability that its admission would require an undue consumption of time or
“create substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.” Such rulings are reviewed for abuse of discretion. (Whisenhunt, supra, at
p. 207.) “ ‘[A] trial court’s limitation on cross-examination pertaining to the credibility
of a witness does not violate the confrontation clause unless a reasonable jury might have
received a significantly different impression of the witness’s credibility had the excluded
cross-examination been permitted.’ [Citation.]” (Id. at p. 208.)
3. Analysis
Defendant Killens first argues that the trial court erred by restricting cross-
examination of Romero regarding the March 28, 2014 incident on the basis of the
prejudice it would pose to defendant Singh.
In his opening brief, defendant Killens relies on People v. Reeder (1978) 82
Cal.App.3d 543 (Reeder), but we find that case distinguishable. In Reeder, the defendant
was convicted of selling heroin after a joint trial with a codefendant named Contreras.
(Id. at p. 547.) Defendant Reeder testified in his own defense and denied taking part in
the drug transaction. Defendant Reeder sought to impeach the codefendant with evidence
that the codefendant had refused to pay a debt and had previously provided heroin to two
of defendant Reeder’s relatives, in order to show that defendant Reeder disliked the
codefendant so much that he “would not have engaged in narcotic dealings” with the
codefendant. (Id. at pp. 549-550.) The trial court precluded the impeachment, finding its
potential for prejudice to the codefendant outweighed its probative value to defendant
Reeder. However, the Court of Appeal reversed, reasoning that the evidence was “of

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significant probative value” to defendant Reeder (id. at p. 553) and that the codefendant
could have requested a limiting instruction or moved for a mistrial and a separate trial
(id. at p. 555).
Unlike in Reeder, the excluded evidence in this case did not tend to directly
establish defendant Killens’s innocence. Instead, the excluded evidence here involved a
collateral matter—defendant Singh’s possession of a gun on March 28, 2014, when he
was in a vehicle with Romero—that did not have “significant probative value” to
defendant Killens. (Reeder, supra, 82 Cal.App.3d at p. 553.) In light of the limited
probative value of the impeachment evidence in this case, the trial court did not err by
excluding it pursuant to Evidence Code section 352. (See Reeder, supra, at p. 553.)
In his reply brief, defendant Killens discusses People v. Morrison (2011) 199
Cal.App.4th 158 (Morrison), in which the trial court had admitted testimony regarding
“a collateral fact” that impeached the defendant’s credibility. (Id. at p. 165.) The
appellate court found that the testimony was relevant and admissible but subject to
exclusion pursuant to Evidence Code section 352, and it ultimately upheld the admission
of the testimony because the defendant failed to explain why the testimony should have
been excluded under Evidence Code section 352. (Morrison, supra, 199 Cal.App.4th at
p. 165.) Here, the trial court did apply Evidence Code section 352 to exclude the
testimony. Moreover, “[a]n appellate court’s ruling that a trial court did not abuse its
discretion in admitting a certain type of evidence is not authority for the proposition that
it is an abuse of discretion to exclude similar evidence in another case.” (Pannu v. Land
Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1318.)
Defendant Killens next argues that the trial court erred by finding it was
appropriate to restrict cross-examination of Romero regarding the March 28, 2014
incident because Romero had already been impeached by other evidence. Defendant
Killens asserts that the other evidence was “garden variety” impeachment material and
that impeachment with defendant Singh’s possession of a gun during the March 28, 2014

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incident would have produced a significantly different impression of Romero’s
credibility. (See Whisenhunt, supra, 44 Cal.4th at p. 208.) Defendant Killens contends
that if he had been able to ask Romero about defendant Singh’s possession of a gun
during the March 28, 2014 incident, the jury would have found that Romero was not
actually afraid of defendants after the murders, which would have cast doubt on
Romero’s testimony implicating defendants as the shooters.
The cases defendant Killens relies on are distinguishable. In Ortiz v. Yates
(9th Cir. 2012) 704 F.3d 1026, the trial court restricted the defendant from impeaching
the “victim and sole eyewitness to the incident” with evidence that she had been
threatened into giving certain testimony. (Id. at p. 1036.) Without evidence of the threat,
the jury “had no reason to question” the victim’s motivation for testifying and thus
“lacked ‘sufficient information to appraise [her] biases and motivations.’ [Citation.]”
(Ibid.) Here, Romero was impeached with evidence that he was testifying in exchange
for dismissal of charges, with his prior inconsistent statements, and with evidence that he
continued to have contact with defendant Singh after the murders, including during the
March 28, 2014 incident that led to drug possession charges. Thus, the jury here had
“reason to question” Romero’s motivation for testifying and had “ ‘sufficient
information’ ” to assess his credibility and potential bias. (Ibid.) This case is also unlike
U.S. v. Brooke (9th Cir. 1993) 4 F.3d 1480, in which the excluded impeachment evidence
would have shown that the co-defendant might have been “acting on his own accord”
rather than at the direction of defendant Brooke, which “encompassed the central dispute
at trial.” (Id. at p. 1489.)
In this case, the trial court’s restriction on impeachment of Romero was very
limited. Defendant Killens was only precluded from eliciting the fact that during the
March 28, 2014 incident, Singh had been in possession of a gun. Defendant Killens was
able to impeach Romero with other facts of that incident as well as with other evidence
having a significant potential impact on Romero’s credibility. On this record, the trial

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court did not abuse its discretion by finding that the evidence would not have produced
“a significantly different impression” of Romero’s credibility (see Whisenhunt, supra, 44
Cal.4th at p. 208), and there was no violation of defendant Killens’s confrontation rights.
D. Admission of Evidence that Killens was on Probation
Defendant Killens contends the trial court erred by admitting evidence that he was
on probation at the time his home was searched. He contends the evidence was irrelevant
and highly prejudicial, and that its admission violated his due process rights under the
Fifth and Fourteenth Amendments.
1. Proceedings Below
In his trial brief, defendant Killens moved to exclude evidence that he was on
probation, arguing that the evidence was not relevant and would be unduly prejudicial.
He offered to stipulate that his residence was lawfully searched.
During the hearing on motions in limine, the prosecutor argued that the evidence
“obtained through that search” was “very probative” and “far outweighed” any
prejudicial effect of the jury finding out that defendant Killens was on probation. The
prosecutor argued that the jury needed to know “the situation” because it is “highly
irregular” to have an officer “come and do a search at somebody’s house.” Defendant
Killens reiterated that he would prefer to “work on a stipulation.”
The trial court found that the evidence that defendant Killens had been subject to
a probation search was not “unduly prejudicial.” The trial court found that the evidence
was probative and that in light of the charges defendant Killens was facing, the fact that
he was on probation was “de minimis.”
During opening statements, the prosecutor told the jury that defendant Killens’s
connection to the murder was discovered because he was “on probation with search and
seizure terms,” and his probation officer searched his phone, finding news articles about
defendant Singh’s arrest and inculpatory text messages and Facebook messages. During

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his own opening statement, trial counsel for defendant Killens acknowledged that
defendant Killens was on probation for “joy riding in a car that didn’t belong to him.”
2. Applicable Law
“There is little doubt exposing a jury to a defendant’s prior criminality presents the
possibility of prejudicing a defendant’s case and rendering suspect the outcome of the
trial. [Citations.]” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581 (Harris).)
However, the determination of whether to admit such evidence in a given case “rests in
the sound discretion of the trial court. [Citation.]” (Id. at p. 1581.) Evidence that a
defendant was on probation or parole may have probative value, and the trial court can
take measures to reduce the risk of undue prejudice from admission of such evidence.
(People v. Fuiava (2012) 53 Cal.4th 622, 667 (Fuiava) [defendant’s prior convictions and
parole status admissible to establish his motive for shooting at officers was to avoid arrest
for possessing firearms by a felon and for violating his parole].)
3. Analysis
The Attorney General asserts that defendant Killens forfeited this claim by
offering to enter a stipulation and by mentioning that defendant Killens was on probation
during opening statements. The cases cited by the Attorney General do not support this
argument. In People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1058 and People v.
Mickle (1991) 54 Cal.3d 140, 187, the defendants forfeited their challenges to certain
testimony because they failed to object to the testimony. Here, defendant Killens filed an
in limine motion objecting to the testimony, and defendant Killens mentioned his
probationary status during opening statements only after the prosecution mentioned it
first. On this record, we find no forfeiture and thus we proceed to the merits of the claim.
Defendant Killens first argues that his probationary status was not relevant to any
disputed issues in the case. (See Evid. Code, § 210.) However, as the prosecutor argued
below, if the jury had not learned of defendant Killens’s probationary status, the jurors
would not have understood why his residence was searched on August 5, 2014 or that it

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was a legal search. Moreover, without learning that the search was a probation search,
the jurors might have speculated that defendant Killens was already a suspect in the
murders based on evidence that was not introduced at trial or that he had committed
another crime after the murders.
Defendant Killens cites a number of cases to support his claim that “a defendant’s
prior criminal record is inadmissible except under narrowly defined circumstances not
applicable here.” None of those cases involved admission of a defendant’s probationary
status to explain why a search was conducted, however. In those cases, evidence of the
defendant’s prior criminal history was not relevant to any issue. (E.g., People v. Allen
(1978) 77 Cal.App.3d 924, 934 [reference to defendant being on parole improper because
parole was for a prior juvenile adjudication, which was inadmissible even for attacking
credibility]; People v. Stinson (1963) 214 Cal.App.2d 476, 480 [defendant’s status as a
parolee irrelevant where defendant had admitted prior conviction before trial and court
had ordered no mention of conviction at trial]; People v. Ozuna (1963) 213 Cal.App.2d
338, 341 [defendant’s status as an ex-convict was “patently irrelevant to the issues” and
admitted only to show his “debased character and criminal disposition”].)
Here, the trial court reasonably found that the evidence of defendant Killens’s
probationary status had minimal prejudicial effect that did not substantially outweigh its
probative value. The jury would have understood that defendant Killens was not on
probation for a crime as serious as the charged offenses, and as previously noted, the
evidence ensured the jury would not speculate that there was additional evidence
implicating defendant Killens that did not come in at trial or that he had committed
another crime after the murders.9 On this record, the trial court did not abuse its
9 In his reply brief, defendant Killens asserts, “The speculation problem could
have been solved with a jury instruction commanding the jurors not to speculate about
this.” Defendant Killens has not provided any citation to authority nor shown good cause
for failing to raise this argument until the reply brief, and thus we need not consider it.

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discretion by failing to exclude the evidence that defendant Killens was on probation at
the time his residence was searched. (See Harris, supra, 22 Cal.App.4th at p. 1581.)
E. Instruction on Accomplice Testimony
Defendants both claim error with respect to CALCRIM No. 334, the instruction on
accomplice testimony. Defendant Killens claims that the instruction violated his Sixth
Amendment right to a jury trial in two respects: (1) the instruction placed the burden of
proof as to accomplices on the defense rather than the prosecution; and (2) the instruction
required only “slight” corroborating evidence. Defendant Singh adopts defendant
Killens’s arguments.10
1. Proceedings Below
Pursuant to CALCRIM No. 334, the jury was instructed: “Before you may
consider the testimony of Ronald Saxton or Eric Romero as evidence against Richard
Singh and Jordan Killens, you must decide whether Ronald Saxton or Eric Romero were
accomplices to the crimes. A person is an accomplice if he is subject to prosecution for
the identical crime charged against the defendant. Someone is subject to prosecution if,
one, he personally committed the crime or, two, he knew of the criminal purpose of the
person who committed the crime and, three, he intended to and did in fact aid, facilitate,
promote, encourage or instigate the commission of the crime. The burden is on the
defendants to prove that it’s more likely than not that Ronald Saxton or Eric Romero
(See People v. Adams (1990) 216 Cal.App.3d 1431, 1441, fn. 2.) Moreover, defendant
did not make this assertion in the trial court. (See ibid.)
10 Respondent reads defendant Killens’s opening brief as also arguing that the trial
court should have instructed the jury that Romero and Saxton were accomplices as a
matter of law pursuant to CALCRIM No. 335, instead of instructing the jury that it could
find Romero and Saxton were accomplices pursuant to CALCRIM No. 334. Defendant
Killens’s opening brief contains a section entitled “Saxton and Romero’s status as
accomplices” but does not argue that the trial court should have given the jury
CALCRIM No. 335 rather than CALCRIM No. 334. Thus, we do not address that
argument.

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were accomplices. An accomplice does not need to be present when the crime is
committed. On the other hand, a person is not an accomplice just because he or she is
present at the scene of the crime, even if he or she knows that a crime will be committed
or is being committed and does nothing [to] stop it. A person may be an accomplice if he
is not actually . . . prosecuted for the crime. [¶] If you decide that a witness was not an
accomplice, then supporting evidence is not required and you should evaluate his or her
testimony as you would for that of any other witness. If you decide that a witness was an
accomplice, then you may not convict the defendant of murder based on his or her
testimony alone. You may use the testimony of an accomplice to convict a defendant
only if, one, the accomplice’s testimony is supported by other evidence that you believe.
Two, that supporting evidence is independent of the accomplice’s testimony. And three,
that supporting evidence tends to connect the defendant to the commission of the crimes.
Supporting evidence however may be slight. It does not need to be enough by itself to
prove that the defendant is guilty of the charged crimes. And it does not need to support
every fact about which the accomplice testified. On the other hand, it is not enough if the
supporting evidence merely shows that a crime was committed or the circumstances of its
commission. The supporting evidence must tend to connect the defendant to the
commission of the crime. The evidence needed to support the testimony of one
accomplice cannot be provided by the testimony of another accomplice. Any testimony
of an accomplice that tends to incriminate the defendant should be viewed with caution.
You may not, however, arbitrarily disregard it. You should give that testimony the
weight you think it deserves after examining [it] with care and caution and in light of all
of the other evidence.”
2. Applicable Law
Section 1111 provides: “A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it

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merely shows the commission of the offense or the circumstances thereof. An
accomplice is hereby defined as one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.”
“ ‘The corroborating evidence may be circumstantial or slight and entitled to little
consideration when standing alone, and it must tend to implicate the defendant by relating
to an act that is an element of the crime. The corroborating evidence need not by itself
establish every element of the crime, but it must, without aid from the accomplice’s
testimony, tend to connect the defendant with the crime. [Citation.]’ ” (People v. Abilez
(2007) 41 Cal.4th 472, 505.)
“Whether a person is an accomplice within the meaning of section 1111 presents
a factual question for the jury ‘unless the evidence permits only a single inference.’
[Citation.]” (People v. Williams (1997) 16 Cal.4th 635, 679 (Williams).) A trial court
may instruct the jury that a particular witness is an accomplice if “the facts regarding
the witness’s criminal culpability are ‘clear and undisputed’ ” but correctly leaves the
question for the jury if the evidence of the witness’s criminal culpability is “not so clear
and undisputed that a single inference could be drawn that [he or she] would be liable for
the ‘identical offense[s]’ charged against [the] defendant.” (Id. at pp. 679-680.)
It has long been held in California that a criminal defendant has the burden of
proving that a witness is an accomplice by a preponderance of the evidence. (People v.
Tewksbury (1976) 15 Cal.3d 953, 968 (Tewksbury).) This is because a witness’s status
as an accomplice is “a collateral fact which conditions a challenge to the reliability of
incriminating evidence,” not an element of the charged crime. (Ibid.; see also People v.
Frye (1998) 18 Cal.4th 894, 968 (Frye), disapproved of on other grounds by People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
“Other than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury, and

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proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490
(Apprendi); see also In re Winship (1970) 397 U.S. 358, 364 (Winship) [“the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged”];
Mullaney v. Wilbur (1975) 421 U.S. 684, 698 (Mullaney) [prosecution also bears the
burden of proving, beyond a reasonable doubt, facts pertaining to “the degree of criminal
culpability”].)
3. Analysis
According to defendants, CALCRIM No. 334 incorrectly placed the burden of
proving accomplice status on the defense rather than the prosecution. Defendants
acknowledge that the California Supreme Court has rejected this claim (e.g., Frye,
supra, 18 Cal.4th at p. 968), but they contend this case law conflicts with the federal
constitutional requirement that the prosecution bears the burden of proving a criminal
charge beyond a reasonable doubt as set forth in Winship, Mullaney, and Apprendi.
Defendants’ contention has already been rejected by our Supreme Court. (Frye,
supra, 18 Cal.4th at p. 968.) We are required to follow that precedent. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) But even assuming that we had
the authority to determine whether the California Supreme Court’s precedent is still valid
following Apprendi, we would reject defendants’ arguments.
“Apprendi held that every finding that exposes the defendant to punishment, or
increases the punishment possible for a crime, must be submitted to a jury and proved
beyond a reasonable doubt.” (People v. Anderson (2009) 47 Cal.4th 92, 116.)
Accomplice corroboration does not expose a defendant to additional or increased
punishment, however. The punishment for a defendant convicted of a crime is not
affected by the fact that he or she was convicted by corroborated testimony from an
accomplice or by other evidence (i.e., testimony from a witness or witnesses who were
not accomplices). Thus, CALCRIM No. 334 does not violate due process by placing the

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burden of proving accomplice status on the defense rather requiring the prosecution to
disprove accomplice status beyond a reasonable doubt. In fact, California’s requirement
of accomplice corroboration adds a requirement that is not required by federal law. (In re
Mitchell P. (1978) 22 Cal.3d 946, 949; see also United States v. Necoechea (9th Cir.
1993) 986 F.2d 1273, 1282 [under federal law, the uncorroborated testimony of an
accomplice “is sufficient to sustain a conviction unless it is incredible or insubstantial on
its face”].)
Defendants also argue that the “slight” corroborating evidence requirement of
CALCRIM No. 334 violates the principles of Apprendi. They rely primarily on People v.
Betts (2005) 34 Cal.4th 1039 (Betts), in which the California Supreme Court held that
“territorial jurisdiction is a procedural matter that relates to the authority of California
courts to adjudicate the case and not to the guilt of the accused or the limit of authorized
punishment,” such that a defendant has no constitutional right to a jury trial or proof
beyond a reasonable doubt on “the factual questions that establish jurisdiction.” (Id. at
p. 1054.)
Defendants assert that the question of whether a witness is an accomplice is not a
procedural matter but rather a factual issue that should be subject to proof beyond a
reasonable doubt. However, nothing in Betts casts doubt on prior California Supreme
Court authority holding that a criminal defendant has the burden of proving that a witness
is an accomplice by a preponderance of the evidence. (Frye, supra, 18 Cal.4th at p. 968;
Tewksbury, supra, 15 Cal.3d at p. 968.) Even more recently, the California Supreme
Court has continued to apply the “slight” corroborating evidence standard. (E.g.,
People v. Valdez (2012) 55 Cal.4th 82, 147-148.) Further, we find nothing in Apprendi
or its progeny to support defendants’ claim that a witness’s status as an accomplice is
analogous to a “fact that increases the penalty for a crime beyond the prescribed statutory
maximum” (Apprendi, supra, 530 U.S. at p. 490), a “fact necessary to constitute the

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[charged] crime” (Winship, supra, 397 U.S. at p. 364), or a fact pertaining to “the degree
of criminal culpability” (Mullaney, supra, 421 U.S. at p. 698).
In sum, we find no merit to defendants’ challenges to CALCRIM No. 334.
F. Prosecutorial Misconduct/Ineffective Assistance of Counsel
Defendant Singh claims the prosecutor committed misconduct on a number of
occasions during the trial. He acknowledges that his trial counsel did not object to each
instance of prosecutorial misconduct and therefore also claims he received ineffective
assistance of counsel. He contends the prosecutorial misconduct and ineffective
assistance of counsel violated his rights under the Sixth and Fourteenth Amendments.
1. Applicable Law
“A prosecutor is given wide latitude to vigorously argue his or her case and to
make fair comment upon the evidence, including reasonable inferences or deductions that
may be drawn from the evidence. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th
641, 726 (Ledesma).) When the claim of prosecutorial misconduct “is based upon
‘comments made by the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion. [Citation.]’ [Citations.]” (People v. Cunningham (2001) 25
Cal.4th 926, 1001 (Cunningham).)
“Under the federal Constitution, to be reversible, a prosecutor’s improper
comments must ‘ “so infect[ ] the trial with unfairness as to make the resulting conviction
a denial of due process.” ’ [Citations.] ‘ “But conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves ‘ “the use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.” ’ ” [Citations.]’ [Citation.]” (Cunningham, supra, 25
Cal.4th at p. 1000.) Such conduct will be found prejudicial if there is a “reasonable
probability that the jury would have reached a more favorable result absent the

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objectionable comments. [Citation.]” (People v. Sandoval (1992) 4 Cal.4th 155, 184
(Sandoval); see People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
“ ‘[A] claim of prosecutorial misconduct is not preserved for appeal if defendant
fails to object and seek an admonition if an objection and jury admonition would have
cured the injury. [Citation.]’ [Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1010,
fn. omitted.)
“To prevail on a claim of ineffective assistance of counsel, the defendant must
show counsel’s performance fell below a standard of reasonable competence, and that
prejudice resulted. [Citations.] When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation. [Citation.] Even where deficient performance appears, the conviction must
be upheld unless the defendant demonstrates prejudice, i.e., [a reasonable probability]
that, ‘ “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” ’ [Citations.]” (People v. Anderson (2001) 25 Cal.4th 543,
569; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
2. Ballistics Testing Argument
Defendant Singh first argues that the prosecutor committed misconduct by
misrepresenting testimony by Adam Lutz, the forensic scientist who analyzed the bullets
and casings found at the scene of the murders, and by trying to elicit certain testimony
from Victor Lurz, the forensic evidence technician who had processed the vehicle found
at the scene of the shootings.
a. Proceedings Below
As noted above, Lutz testified that the five bullets and seven casings he had
analyzed had likely been fired from the same gun. However, Lutz could not rule out the
possibility that there had been two guns because there was a potential eighth bullet strike.

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Lutz also testified that it was possible, although “speculative,” that the bullet fragment
found in Safford’s skull was a different type of bullet. Lutz had not analyzed that bullet
fragment.
When Lurz testified, the prosecution asked him whether he had sent “some
ballistics someplace” at the prosecutor’s request. Lurz initially responded that
responsibility for sending ballistics evidence to another entity would have fallen on an
evidence technician or property technician. Lurz then recalled that at the request of the
prosecutor, he had in fact sent “a package or something” to a private crime lab called
Forensic Analytical. The prosecutor then asked Lurz to confirm that “the district attorney
uses Department of Justice; correct?” After Lurz responded, “For some things, yes,” the
prosecutor asked Lurz to again confirm that he had “sent this to Forensic Analytical.”
Lurz replied, “Yes,” and again confirmed that he had done so at the prosecutor’s request.
During argument to the jury, the prosecutor acknowledged that the ballistics
evidence was not “conclusive.” The prosecutor then argued that although the five intact
bullets Lutz had examined were all .45-caliber “full metal jackets,” there was a bullet
fragment in Safford’s head that could have come from lead bullets. The prosecutor
noted, “Possibility.” The prosecutor then referred to the bullet found in the trunk of the
victims’ vehicle, asserting that it “most likely came from a .45[-]caliber lead bullet,” not
a full metal jacket bullet, which suggested a second shooter had been using a gun with a
different type of ammunition. There was no objection to the prosecutor’s argument.
Defendant Killens’s trial counsel addressed the same issue during his argument to
the jury. He noted that the prosecution had “tried to portray the fragment as a lead bullet
or a different type of bullet,” but pointed out that the prosecution’s own witness, Lutz,
had characterized that as “speculative.” Defendant Killens’s trial counsel noted that Lutz
had not examined the bullet fragment and asserted that the prosecution had intentionally
“chose not to” have Lutz analyze the fragment in order to support the prosecution’s
argument that the fragment were from a different type of bullet.

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In closing argument, the prosecutor responded to the above argument, stating that
Lutz had testified the fragment from Safford’s head “had no value.” The prosecutor also
noted that the defense had a right to have the fragment examined also. The prosecutor
pointed out that Victor Lurz had testified he sent the ballistics evidence to a forensic
laboratory and referenced “their expert.” Defendant Killens’s trial counsel objected that
this was “not correct,” and the trial court sustained the objection. The prosecutor
asserted, “It is correct that Victor Lurz said he sent it to [F]orensic [L]aboratory.”
Defendant Killens’s trial counsel requested a “front bar,” but the trial court said, “I think
you can limit it to that.” The prosecutor then continued, reiterating that Lurz had sent
ballistics evidence to “[F]orensic [L]aboratory” and noting that Lutz did not work for that
lab.
b. Analysis
Defendant Singh now contends the prosecutor committed misconduct by
(1) attempting to elicit testimony from Lurz regarding sending ballistics evidence to an
outside lab; (2) embellishing Lurz’s testimony about what was sent to the outside lab;
(3) misrepresenting Lutz’s testimony about whether two types of ammunition were
found; and (4) insinuating that a defense expert had conducted ballistics testing at the
outside lab. Defendant contends the prosecutor thereby placed facts not in evidence
before the jury.
The Attorney General notes that there was no objection to the prosecutor’s
questioning of Lurz about sending ballistics evidence to an outside lab, and no objection
to the prosecutor’s initial argument about there being two different types of bullets. The
Attorney General also asserts that defendant Singh is making a different argument on
appeal regarding the prosecutor’s later assertions about the outside lab. We will reach
the merits of each claim, however, in order to address defendant Singh’s ineffective
assistance of counsel argument.

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We agree that the prosecutor should not have attempted to elicit testimony from
Lurz to establish that ballistics evidence had been sent to an outside lab, at least to the
extent that the jury was likely to have construed that testimony as suggesting that the
defense had tested the ballistics fragments and that the testing had not been favorable
to the defense. The record does not support the Attorney General’s claim that the
prosecutor elicited this testimony in order to argue that the defense could have had the
ballistics evidence tested, and the record does not indicate that either party intended to
actually introduce evidence that the ballistics evidence had been tested by a defense
expert. (See People v. Mooc (2001) 26 Cal.4th 1216, 1233-1234; People v. Earp (1999)
20 Cal.4th 826, 859-860.)
We also agree—and the Attorney General concedes—that in closing argument, the
prosecutor improperly implied that a defense expert (“their expert”) worked at the outside
lab that received the ballistics evidence. Although the trial court sustained the objection
by defendant Killens’s trial counsel that this was “not correct,” the prosecutor then
reiterated that Lurz had sent ballistics evidence to “[F]orensic [L]aboratory” and noted
that Lutz did not work for that lab.
However, we do not agree with defendant Singh’s claim that the prosecutor
committed misconduct by embellishing Lurz’s testimony about what was sent to an
outside lab. The prosecutor had asked Lurz, who had testified exclusively about bullet
strikes and bullets, whether Lurz had “sent some ballistics someplace.” Lurz ultimately
testified that he had, in fact, sent a package—clearly referring to ballistics evidence—to
Forensic Analytical. Thus, when the prosecutor argued that Lurz had sent ballistics
evidence to an outside lab, he did not misstate or embellish the evidence.
Although the prosecutor should not have elicited Lurz’s testimony about the
outside lab and should not have implied that a defense expert worked at that lab, our
review of the record demonstrates there is no “reasonable probability that the jury would
have reached a more favorable result” absent the improper questioning and argument.

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(See Sandoval, supra, 4 Cal.4th at p. 184; Watson, supra, 46 Cal.2d at p. 836.) As the
Attorney General points out, the ballistics evidence was “circumstantial evidence tending
to corroborate the eyewitnesses to the murders.” Both Romero and Saxton testified that
they saw both defendants with guns and that they saw both defendants shoot the victims.
Moreover, the evidence established that both victims were shot three times, in the back of
the head and in their backs. This evidence strongly suggested the shootings were
committed simultaneously, with two firearms, after the victims had both turned around.
As the prosecutor argued at trial, if one victim had been shot first, there would likely have
been evidence that the second victim had turned back around to look or had attempted to
run away. In light of this evidence, the prosecutor’s improper suggestion about possible
testing by a defense expert at an outside lab was harmless.
We next consider defendant Singh’s claim concerning the prosecutor’s comments
referring to Lutz’s testimony. We do not agree that the prosecutor committed misconduct
by asserting that the bullet fragments in Safford’s head could have come from lead
bullets, because that statement was supported by Lutz’s testimony. Lutz testified that the
bullet fragments appeared to be lead fragments, and that it was possible, although
speculative, that the fragments had not come from full metal jacket bullets.
However, the prosecutor did overstate Lutz’s testimony by asserting that the bullet
found in the trunk of the victims’ vehicle “most likely came from a .45[-]caliber lead
bullet,” not a full metal jacket bullet. Lutz had testified only that he could not rule out the
possibility that there had been two guns because there was a potential eighth bullet strike,
not that there “most likely” was a second type of bullet. Nevertheless, defendant Singh’s
trial counsel was not ineffective for failing to object. The record indicates the defense
made a tactical decision to address the prosecutor’s assertion during argument to the jury.
(See People v. Welch (1999) 20 Cal.4th 701, 764 (Welch) [“defense counsel could have
legitimately decided that it was tactically wise not to interrupt the prosecutor but to
respond . . . during his own closing argument, as he in fact did”].)

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3. Circumstantial Evidence Argument
Defendant Singh contends the prosecutor committed misconduct by misstating the
circumstantial evidence instruction.
a. Proceedings Below
The trial court instructed the jury on circumstantial evidence pursuant to
CALCRIM No. 224, which told the jury: “Before you may rely on circumstantial
evidence to conclude that a fact necessary to find a defendant guilty has been proved, you
must be convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to find
a defendant guilty, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant is guilty. If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt, you must accept the one
that points to innocence. However, when considering circumstantial evidence, you must
accept only reasonable conclusions and reject any that are unreasonable.”
During argument to the jury, the prosecutor referenced “the circumstantial
evidence instruction,” asserting, “it’s the most reasonable interpretation of the evidence.
The most reasonable interpretation.” The prosecutor told the jury, “[T]hat’s your touch
stone. That’s your guide post.” The prosecutor then discussed the ballistics evidence (as
described in the section above) and argued that “[t]he most reasonable interpretation is
we had another shooter.”
Neither defendant objected, but trial counsel for defendant Singh addressed the
prosecutor’s discussion of circumstantial evidence during his own argument to the jury:
“The law says it’s not the most reasonable interpretation. If there is a reasonable
interpretation that points towards innocence and one that points towards guilt, you’re
required to adopt the one that points towards innocence.”

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b. Analysis
The Attorney General contends the prosecutor did not misstate the law, because
the circumstantial evidence rule stated in CALCRIM No. 334 only applies “ ‘when
circumstantial evidence is “substantially relied on for proof of guilt,” ’ ” and the rule does
not apply “when circumstantial evidence is merely used to corroborate direct evidence.
[Citations.]” (People v. Sandoval (2015) 62 Cal.4th 394, 417-418.) The Attorney
General points out that here, the prosecution had direct evidence that there were two
shooters (i.e., the testimony of Saxton and Romero), and that the ballistics evidence was
merely circumstantial evidence corroborating that direct evidence.
Even assuming that the rule stated in CALCRIM No. 334 applied in this case and
that the prosecutor misstated the law during argument to the jury, defendant Singh’s trial
counsel was not ineffective for failing to object. The record shows that defendant
Singh’s trial counsel made a tactical decision to address the prosecutor’s assertion during
argument to the jury rather than interrupt the prosecutor’s argument with an objection.
(See Welch, supra, 20 Cal.4th at pp. 763-764.) This was a reasonable tactical decision,
particularly in light of the trial court’s admonition that the jury was required to follow the
trial court’s instructions—which included CALCRIM No. 334—if the attorneys’
comments on the law conflicted with those instructions. (See CALCRIM No. 200.)
4. Motive Argument
Defendant Singh contends the prosecutor committed misconduct with respect to
certain text messages. He contends the prosecutor (1) misrepresented facts to the trial
court during a motion in limine; (2) told the jury about certain text messages in violation
of the in limine ruling; and (3) introduced evidence that violated the in limine ruling.
a. Proceedings Below
The text messages at issue were first referenced in the prosecution’s trial brief,
which contained a summary of the facts. The factual summary described an incident
prior to the murders, in which Navneal and defendant Singh were in a car stopped by

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police. After the police found a gun, Navneal told the police the gun belonged to
defendant Singh.
The prosecution’s trial brief next described events on the day of the murders and
indicated that cell phone records would show defendant Singh traveling from Sacramento
with Navneal and Safford on the day of the murder. The trial brief stated that during the
drive, defendant Singh had called Saxton to say that the planned home invasion robbery
“was going down” that day. Defendant Singh had gone to Killens’s home and waited for
Saxton to pick them up. While waiting, defendant Singh had texted Navneal to “secure a
gun to be used in the robbery.” The text asked, “What brand is they bruth?” Navneal had
texted back, “Slide.”
The parties discussed the text messages during a hearing on the motions in limine,
which included a motion to exclude all statements by Safford and Navneal. The trial
court asked the prosecution if any statements by the victims would be offered. One of the
prosecutors responded that Navneal had made statements during the incident when a gun
was found in a car. However, since the trial court had indicated that the prior gun
incident was not admissible, the prosecutor represented, “[T]hat will not be an issue.”
The trial court confirmed, “So if that’s the only statement that you are proposing as to
Navneal Singh, then this motion would be granted.” The other prosecutor responded,
“Agreed.”
During opening statements, one of the prosecutors told the jurors that they would
see text messages sent and received on the day of the shootings. According to the
prosecutor, defendant Singh had been waiting for a call from Navneal “about the gun”
and had sent a text message to Navneal asking, “What brand is they, bro?” Navneal had
sent “a response” to defendant Singh.
The text messages themselves were introduced during the testimony of
investigator Peter Austen. Austen had created a spreadsheet of cell phone data that
included text messages and phone calls exchanged between defendant Singh and Navneal

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on the day of the murders. At 5:53 p.m., Navneal had texted defendant Singh, “What
brand is they bro?” At 6:02 p.m., defendant Singh had texted Navneal, “Yuup.” At
6:10 p.m., Navneal had texted defendant Singh, “Slide.” Austen explained that “slide” is
a nickname for a semiautomatic weapon. There was no defense objection to the
testimony or exhibit.
On cross-examination, Austen was asked about the text messages. He was asked
whether the text message saying “Slide” appeared to be a response to a previous text
message. Austen testified, “It could be an answer. Because there are telephone calls
between the messages. So it could be based on a telephone call that they had and he
responded back via text later.” He acknowledged that the messages “What brand is they
bro” and “Slide” both came from the same person. He also acknowledged that “slide” is
commonly used to mean “leave or come.”
When the parties later discussed the admissibility of various exhibits, the
prosecution indicated it was seeking to admit the actual cell phone records, which the
parties had stipulated to, as well as a summary of the records. Trial counsel for defendant
Killens objected to the summary, but the trial court ruled the summary was admissible.
During argument to the jury, the prosecutor described the two text messages from
Navneal to defendant Singh as “significant.” The prosecutor referred to the text message
asking “what brand is it bro” and the later text stating “Slide.” The prosecutor asked, “So
what are they talking about? They’re talking about a gun. Navneal has got a gun. He’s
going to give it to [defendant Singh].” The prosecutor acknowledged that taken alone,
the text messages did not “make sense,” but reminded the jury that there had been phone
calls in between the two messages.
b. Analysis
Defendant Singh asserts the prosecutor violated the trial court’s in limine order
by eliciting evidence about Navneal’s texts, failing to redact Navneal’s texts from the
spreadsheets, and mentioning the texts in opening statement and argument to the jury.

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As the Attorney General points out, however, the trial court’s in limine ruling did not
encompass Navneal’s text messages. The in limine ruling only precluded the prosecution
from introducing the statements Navneal had made during the incident when a gun was
found in a car. “Although it is misconduct to elicit or attempt to elicit inadmissible
evidence in violation of a court ruling [citation],” the trial court had not ruled on the
admissibility of the text messages and no objection was raised. (People v. Silva (2001)
25 Cal.4th 345, 373.) Thus, prosecutor “violated no court ruling.” (Ibid.)
Defendant Singh next argues that the prosecutor committed misconduct by
indicating, in its trial brief and during opening statements, that defendant Singh had sent
the text message asking about the “brand.” Defendant Singh points out that the evidence
at trial showed the text message referencing a “brand” was actually written by Navneal to
defendant Singh. As the Attorney General concedes, the prosecutor misspoke. We will
assume that even if the misstatements were inadvertent, they constituted “ ‘prosecutorial
error.’ ” (People v. Jasso (2012) 211 Cal.App.4th 1354, 1362 (Jasso) [“the rubric of
prosecutorial misconduct embraces a prosecutor’s inadvertent and negligent
objectionable statements to the jury”]; cf. Fuiava, supra, 53 Cal.4th at p. 691 [indicating
that prosecutorial misconduct does not include “an inadvertent misstatement”].)
However, in light of the fact that the evidence showed that Navneal sent the text message,
there is no “ ‘reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.’ ” (Cunningham, supra, 25 Cal.4th
at p. 1001.)
Last, defendant Singh contends the prosecutor asked both the jury and the trial
court to “draw an irrational, speculative, and inflammatory inference” from the text
messages, apparently because the prosecutor argued that the messages showed that
Navneal was going to give defendant Singh a gun. In light of Austen’s testimony that
“slide” is a nickname for a semiautomatic weapon, the prosecutor’s argument was

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“ ‘founded on the evidence in the record and fell within the permissible bounds of
argument.’ [Citations.]” (Fuiava, supra, 53 Cal.4th at p. 692.)
5. Intimidation Argument
Defendant Singh contends the prosecutor committed misconduct by asserting facts
not in evidence during argument to the jury: that an associate of defendant Singh’s had
come to court to intimidate Saxton.
a. Proceedings Below
On cross-examination by the defense, Saxton testified that he had known Quintrel
Alexander since middle school. Saxton denied having sold drugs to Alexander. On
redirect examination by the prosecution, Saxton acknowledged that while he was
testifying, he had seen Alexander come into the courtroom and be “ushered out.” Saxton
testified that he knew Alexander was a friend of defendant Singh. Saxton also
acknowledged that Alexander had passed by him just before his testimony, outside the
courtroom. Alexander had stated that he would “stick around now.” Saxton testified that
because Alexander was a friend of defendant Singh, he “[p]robably” was fearful of
Alexander. The prosecutor asked if Saxton knew any reason why Alexander would
“come into this courtroom after being told not to by the judge or by his attorney.” Saxton
said, “I don’t know why he came.” When the prosecutor next asked Saxton if he believed
Alexander had come to court to intimidate Saxton, the defense objected that the question
was “leading and speculative,” and the trial court sustained the objection. The prosecutor
asked Saxton to confirm that Alexander “did come in the courtroom,” and Saxton
testified, “Yeah.” Saxton also agreed when the prosecutor asked, “You’ve been told to
stay out of this courtroom if you’re not testifying; is that right?”
During argument to the jury, the prosecutor told the jury that “[t]here was a little
bit of commotion” when Alexander had walked into the courtroom during Saxton’s
testimony, because Alexander was on the witness list and should not have been there.
The prosecutor told the jury that Saxton had testified that when he had crossed paths with

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Alexander outside of the courtroom, Alexander had stated, “I guess I’ll stay and watch
this.” The prosecutor argued, “That’s intimidation. Okay. Coming in here, in violation
of a court order for a witness to stay outside, he comes in here while Saxton is testifying.
He is a friend of [defendant Singh’s]. He was intimidating Mr. Saxton.”
b. Analysis
Defendant Singh asserts that there was no evidence in the record to support the
prosecutor’s comments and questions about (1) Alexander having caused a commotion;
(2) Alexander having been on a witness list; (3) Alexander having been told to stay out of
the courtroom by the judge; (4) Alexander having been told to stay out of the courtroom
by an attorney; (5) Alexander having an attorney; (6) Alexander having violated a court
order excluding witnesses from the courtroom; (7) Alexander having come into the
courtroom in order to intimidate Saxton; and (8) Alexander having a link to defendants.
As defendant Singh acknowledges and the Attorney General points out, neither
defendants’ trial counsel objected to the prosecutor’s argument or to the prosecutor’s
questions of Saxton, except for the question about whether Saxton believed Alexander
had come to court to intimidate him. Contrary to defendant Singh’s assertion, however,
the one objection did not preserve a challenge to the prosecutor’s earlier questions or to
the prosecutor’s later argument, since the trial court’s sustaining of the “leading and
speculative” objection did not indicate that the prosecution was barred from asking
further questions about witness intimidation. Because defendant Singh’s claims of
prosecutorial misconduct were forfeited by his trial counsel’s failure to object to the
questions and arguments about Alexander, we will consider defendant Singh’s claim that
he received ineffective assistance of counsel.
First, defendant Singh’s trial counsel was not ineffective for failing to object that
the prosecution’s questions to Saxton were argumentative and put facts not in evidence
before the jury. “An argumentative question is a speech to the jury masquerading as a
question. The questioner is not seeking to elicit relevant testimony. Often it is apparent

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that the questioner does not even expect an answer. The question may, indeed, be
unanswerable.” (People v. Chatman (2006) 38 Cal.4th 344, 384 [prosecutor’s question—
whether “ ‘the safe [was] lying’ ”—was argumentative, since “[a]n inanimate object
cannot ‘lie’ ”].) In this case, the prosecutor did not ask any argumentative questions of
Saxton. Each question anticipated an answer and was answerable; none was “a speech to
the jury masquerading as a question.” (Ibid.) The questions also were based in events
that took place during the trial; they did not “suggest[] to the jurors that the prosecutor
had a source of information unknown to them which corroborated the truth of the matters
in question.” (People v. Wagner (1975) 13 Cal.3d 612, 619.) Thus, trial counsel could
have reasonably decided that an argumentative objection would not have had merit.
Second, defendant Singh’s trial counsel was not ineffective for failing to object to
the prosecutor’s questions of Saxton on the ground that witness intimidation evidence is
inadmissible. In general, “ ‘ “ ‘evidence of the attempt of third persons to suppress
testimony is inadmissible against a defendant’ ” ’ ” unless the attempt was made in the
defendant’s presence or the defendant authorized the attempt. (Williams, supra, 16
Cal.4th at p. 200.) However, “ ‘[e]vidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that witness and is therefore
admissible. [Citations.]’ ” (People v. Mendoza (2011) 52 Cal.4th 1056, 1084 [evidence
of threatening statement by defendant’s brother admissible to show witness’s fear of
testifying].) Trial counsel could reasonably have decided that an objection would not
have been meritorious, since the prosecutor’s questions elicited evidence that was
relevant to Saxton’s credibility.
Third, defendant Singh’s trial counsel was not ineffective for failing to object to
the prosecution’s argument about Alexander. The record supports the prosecutor’s
argument that Alexander had been ushered out of the courtroom. Although the jury had
not previously learned that Alexander had been on a witness list, that was a reasonable
inference from the fact that Alexander had been removed, since the trial court had

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excluded witnesses from the courtroom. Trial counsel could reasonably have determined
that an objection would have left the jury speculating as to why Alexander had been
removed. Trial counsel could also reasonably have believed that an objection to the
prosecutor’s argument about Alexander’s conduct constituting intimidation would not
have been meritorious. In light of Saxton’s testimony about being afraid of Alexander,
the intimidation argument was well within the prosecutor’s “wide latitude to vigorously
argue his or her case and to make fair comment upon the evidence.” (Ledesma, supra, 39
Cal.4th at p. 726.)
6. “Lesser Criminals” Argument
Defendant Singh next contends the prosecutor committed misconduct by acting
as his own witness and touting the experience of the District Attorney’s Office. He
complains specifically about the prosecutor’s remarks about (1) how there were “lesser
criminals” and “lesser players” in the case, (2) how the prosecution did not “use tricks to
convict innocent people,” (3) how criminals do “stupid things,” and (4) how “[p]eople
like these” kill to show they are powerful.
a. Proceedings Below
The prosecutor’s remarks about “lesser criminals” and “lesser players” came in
the context of a discussion about whether the jury should believe Saxton and Romero.
The prosecutor acknowledged that both Saxton and Romero had admitted to having
previously been untruthful and that both had been granted immunity, which was
“leniency.” The prosecutor explained that the District Attorney’s Office “deals with
many criminal situations where in order to get a more serious crime solved we have to
give some concessions to lesser criminals. . . . And I think you can understand in this
situation how important it was to get these two killers convicted, . . . how we had to give
some leniency to lesser players in this case.”
The prosecutor’s remark about not using “tricks” to get convictions responded to
a comment made by defendant Killens’s trial counsel during opening statements.

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Defendant Killens’s trial counsel had told the jury that the use of Facebook posts was
“an old favorite DA trick.” Referencing this statement, the prosecutor argued, “I think
he used the word it’s an old DA trick. I may be old, but I don’t use tricks to convict
innocent people.”
The prosecutor’s remarks about how criminals do “stupid things” was made in the
context of stressing the strength of the evidence. The prosecutor told the jury, “[C]rime
is stupid. Criminals are stupid. This isn’t Hollywood. This is not TV. This is the real
thing. We have these two gentlemen over here who did this horrible crime, and they left
a trail of evidence.” After noting that defendants had trusted Saxton and Romero “not to
tell on them,” the prosecutor reiterated, “Crime is stupid. Criminals do stupid things.”
The prosecutor’s remarks about how “[p]eople like these” kill to show they are
powerful came in the context of his argument about motive. The prosecutor noted that in
movies and on television, often “there’s a nice huge interesting motive” but that in “real
life,” there are “thrill killings” and crimes committed “without motive.” The prosecutor
argued, “People like these will kill people for the smallest reason to show that they are
powerful. They’re the man. They’re tough guys. They’ll go back and brag about it like
Killens did.”
b. Analysis
Defendant Singh acknowledges he did not object to any of the above arguments by
the prosecutor, and he argues that an objection and admonition to disregard the arguments
would not have cured the prejudicial effect. The cases he cites do not support this claim.
In People v. Heldenburg (1990) 219 Cal.App.3d 468, the defendant did raise an objection
to a question asked by the prosecutor, but was found to have forfeited his claim on appeal
because his trial counsel failed “to press the trial court for an admonition to the jury.”
(Id. at p. 475.) The defendant failed to object or seek a curative admonition in People v.
Jablonski (2006) 37 Cal.4th 774, and the court found “not persuasive” his assertion that
an objection and request for admonition would have been futile. (Id. at p. 836.) The

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defendant in People v. Gaines (1997) 54 Cal.App.4th 821 made numerous objections to
the prosecutor’s questions and closing argument. (Id. at pp. 824-825.) Likewise, the
defendant in People v. Bolton (1979) 23 Cal.3d 208 objected to the prosecutor’s
argument. (Id. at p. 212 & fn. 1.) And in People v. Navarrete (2010) 181 Cal.App.4th
828, the court held that a curative instruction was ineffective in curing the prejudice
stemming from a detective’s reference to the defendant’s confession, which had been
ruled inadmissible. (Id. at p. 831.) That court acknowledged that “a trial court can
almost always cure the prejudice of an improperly volunteered statement by granting a
motion to strike and charging the jury with an appropriate curative instruction,” but the
reference to the inadmissible confession was an “ ‘exceptional circumstance’ ” in which a
curative instruction could not undo the prejudice. (Id. a p. 836.) The instant case does
not involve the “ ‘exceptional circumstance’ ” of a defendant’s confession being
improperly introduced, nor any analogous circumstance. (Ibid.) We therefore proceed to
determine whether defendant Singh’s trial counsel was ineffective for failing to object.
“[I]t is misconduct for prosecutors to vouch for the strength of their cases by
invoking their personal prestige, reputation, or depth of experience, or the prestige or
reputation of their office, in support of it. [Citations.] Specifically, a prosecutor’s
reference to his or her own experience, comparing a defendant’s case negatively to others
the prosecutor knows about or has tried, is improper. [Citation.] Nor may prosecutors
offer their personal opinions when they are based solely on their experience or on other
facts outside the record. [Citations.]” (People v. Huggins (2006) 38 Cal.4th 175, 206-
207.)
The prosecutor did not violate the above standards in this case, and thus defendant
Singh’s trial counsel was not ineffective for failing to object. The prosecutor did not
compare defendants’ case negatively to others. (Cf. People v. Medina (1995) 11 Cal.4th
694, 758 [improper for prosecutor to tell jury that “ ‘no case I have ever seen’ had such
overwhelming evidence”].) The prosecutor also did not “ ‘attempt to bolster a witness by

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reference to facts outside the record.’ ” (Williams, supra, 16 Cal.4th at p. 257.) By
referring to Saxton and Romero as “lesser criminals” and “lesser players,” the prosecutor
was arguing the evidence, which showed that Saxton and Romero were not the actual
shooters. When the prosecutor asserted that he was not using “tricks” to get convictions,
he was simply responding to an argument made by the defense; the comment did not
indicate the prosecutor had a personal opinion about defendants’ guilt. The prosecutor’s
remarks about how criminals do “stupid things” was fair comment on the evidence, in
light of the fact that there was no apparent motive for the murders and the fact that
defendants committed the shootings in plain view of two eyewitnesses, Romero and
Saxton. Finally, the prosecutor’s remarks about how “[p]eople like these” kill to show
they are powerful likewise was fair comment on the evidence, again in light of the fact
that there was no other apparent motive for the murders. Defendant Singh’s trial counsel
could have reasonably decided that any objections to the prosecutor’s remarks were not
likely to be sustained.
7. In Limine Motion Argument
Defendant Singh contends the prosecutor committed misconduct by
misrepresenting facts during the motion in limine regarding the Facebook messages
exchanged between defendant Killens and Tran.
As noted in section III.B.1 above, the prosecution originally sought to introduce
four Facebook messages that preceded those admitted at trial.11 However, the prosecutor
subsequently told the trial court he was no longer seeking to introduce the first four
messages because they were from “another person,” not Tran.
11 The first message was from Tran to defendant Killens: “[H]as he called u back,
& your boy rich in tha news.” The second message was from defendant Killens to Tran:
“Oh yup.” The third message was from defendant Killens to Tran: “[S]end me the link.”
The fourth message was from Tran to Killens: “[T]hey caught him on the 2 murders or
some shit.”

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Neither defense counsel objected when the prosecutor originally attributed the
Facebook messages to Tran. Defendant Singh fails to explain why an objection would
have been futile or how this issue presents a pure question of law. Therefore, defendant
Singh’s claim of prosecutorial misconduct is waived. Defendant Singh does not claim
that his trial counsel was ineffective for failing to object.
Moreover, defendant Singh acknowledges that an objection would not have made
a difference in the trial court’s analysis because before the trial court even ruled on the
admissibility of the messages, the prosecutor acknowledged that the messages were not
from Tran. The messages were also not introduced at trial. Even if properly preserved,
we would decline to find “ ‘prosecutorial error’ ” under these circumstances (see Jasso,
supra, 211 Cal.App.4th at p. 1362), and certainly no prejudicial prosecutorial misconduct
(see Cunningham, supra, 25 Cal.4th at p. 1019.)
8. Federal Due Process Claim
Defendant Singh contends the prosecutorial misconduct in this case “so infect[ed]
the trial with unfairness” that his convictions were a denial of due process. Defendant
Singh asserts that the record shows the prosecutor “did whatever was necessary to gain
favorable rulings from the court and to bias the jury against the defendants.”
The record does not support defendant Singh’s description of the prosecution’s
efforts to obtain convictions in this case. As we have detailed, defendant Singh’s
individual claims of prosecutorial misconduct are without merit or were not prejudicial.
With respect to the ballistics evidence, the prosecutor’s improper questions and
comments about testing at an outside lab was harmless in light of the other evidence
establishing that both defendants shot the victims. Even if the prosecutor misstated the
accomplice testimony instruction, it was not reasonably probable that the jury would have
misunderstood the law of accomplice testimony in light of the trial court’s instructions
and defense arguments. Similarly, although the prosecutor initially attributed a text
message to defendant Singh, the evidence showed that Navneal actually sent the text

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message and thus it was not reasonably probable that the jury would have believed the
message was sent by defendant Singh. There was no prosecutorial misconduct with
respect to the prosecutor’s questions and arguments concerning Alexander, and no
prosecutorial misconduct with respect to the prosecutor’s arguments about “lesser
criminals,” “tricks,” the “stupid things” criminals do, and how “[p]eople like these” kill
to show they are powerful. Finally, the prosecutor corrected his initial representation
about the Facebook messages, which in any event did not affect the trial court’s ruling
and did not go before the jury.
In sum, this is not a case in which the prosecutor committed errors that “ ‘ “so
infect[ed] the trial with unfairness as to make the resulting conviction a denial of due
process.” ’ [Citations.]” (Cunningham, supra, 25 Cal.4th at p. 1000.)
G. Cumulative Prejudice
Both defendants contend that even if no one of the alleged trial errors was
prejudicial, there was cumulative prejudice. (See Hill, supra, 17 Cal.4th at p. 844
[“a series of trial errors, though independently harmless, may in some circumstances rise
by accretion to the level of reversible and prejudicial error”].) Although we have noted a
few instances of prosecutorial error, we found no prejudice from the individual instances,
and we find no prejudice from the cumulative effect of those prosecutorial errors.
Having found no other trial errors, there can be no cumulative prejudice.
H. Section 12022.53 Allegations
As noted above, the second amended information alleged that each defendant
personally used and intentionally discharged a firearm and proximately caused great
bodily injury or death, with references to section 12022.53, subdivisions (b), (c), (d),
and (e). The verdict forms reflected that the jury found true allegations that each
defendant personally and intentionally discharged a firearm under section 12022.53,
subdivision (c) and allegations that each defendant personally and intentionally
discharged a firearm, causing great bodily injury and death, “within the meaning of

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Penal Code Sections 12022.53(d) and 12022.53(e).” Both defendants were sentenced
to life without the possibility of parole for the murders with consecutive terms of 25 years
to life for the section 12022.53, subdivision (e) allegations. The trial court imposed terms
of 20 years for the section 12022.53, subdivision (c) allegations and terms of 25 years to
life for the section 12022.53, subdivision (d) allegations, but stayed those terms.
We requested the parties submit supplemental briefs addressing whether the trial
court err by imposing enhancements under section 12022.53, subdivision (e) and if so,
what remedy this court should order to correct the errors. Defendants responded by
asserting that the prosecution failed to plead and prove not only the facts required for
the section 12022.53, subdivision (e) enhancement, but also for the section 12022.53,
subdivision (d) enhancement. The Attorney General’s response conceded both errors and
agreed with defendants that the proper remedy is to remand for resentencing and order
the trial court to strike those two enhancements and impose the section 12022.53,
subdivision (c) enhancement.
1. Applicable Law
Section 12022.53, subdivision (b) provides for a 10-year enhancement when a
person “personally uses a firearm” in the commission of a specified felony.
Section 12022.53, subdivision (c) provides for a 20-year enhancement when a
person “personally and intentionally discharges a firearm” in the commission of a
specified felony.
Section 12022.53, subdivision (d) provides for an enhancement of 25 years to life
when a person “personally and intentionally discharges a firearm and proximately causes
great bodily injury . . . or death, to any person other than an accomplice” in the
commission of a specified felony.
Section 12022.53, subdivision (e) provides for an enhancement of 25 years to life
when a person is “a principal in the commission of an offense,” the person violates
section 186.22, subdivision (b)—that is, he or she commits an offense for the benefit of a

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criminal street gang, and “[a]ny principal in the offense committed any act specified in
subdivision (b), (c), or (d).”
Section 12022.53, subdivision (j) specifies that for any of the above penalties to
apply, “the existence of any fact required under subdivision (b), (c), or (d) shall be
alleged in the accusatory pleading and either admitted by the defendant in open court or
found to be true by the trier of fact.”
2. Analysis
In this case, although section 12022.53, subdivision (e) was referenced in the
charging document, the prosecution never actually alleged the factual basis for a
section 12022.53, subdivision (e) enhancement. In particular, there was no allegation that
any offense was committed for the benefit of a criminal street gang in violation of
section 186.22, subdivision (b). The jury was not instructed on such an allegation, and
although the verdict forms referenced section 12022.53, subdivision (e), they did not
contain the relevant statutory language and thus the jury made no findings under that
statute. The section 12022.53, subdivision (e) enhancement must, therefore, be stricken.
(See People v. Botello (2010) 183 Cal.App.4th 1014, 1021, 1029 [striking § 12022.53,
subd. (e) enhancement because it was not alleged in the information and not included in
the verdict forms].)
The charging document also did not fully allege the factual basis for the
section 12022.53, subdivision (d) enhancements. In particular, there was no allegation
that either defendant had proximately caused great bodily injury or death to a person
“other than an accomplice.” (Ibid.) The jury instructions did not inform the jury that
proof of the allegation required a finding that the victim was a person other than an
accomplice, and the verdict forms did not require the jury to make such a finding. In
light of section 12022.53, subdivision (j)’s requirement that “the existence of any fact
required under subdivision (b), (c), or (d) shall be alleged in the accusatory pleading and

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either admitted by the defendant in open court or found to be true by the trier of fact,” we
agree that the section 12022.53, subdivision (d) enhancement must be stricken.
IV. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing. On
remand, the trial court shall strike the enhancements imposed pursuant to Penal Code
section 12022.53, subdivision (d) and Penal Code section 12022.53, subdivision (e) and
impose the previously stayed enhancements pursuant to Penal Code section 12022.53,
subdivision (c).

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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.

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