P. v. Sledge

Filed 11/30/06 P. v. Sledge CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIAM L. SLEDGE et al.,
Defendants and Appellants.
B182288
(Los Angeles County
Super. Ct. Nos. PA045508,
MA025218)
APPEALS from judgments of the Superior Court of Los Angeles County,
Meredith C. Taylor, Judge. Affirmed.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and
Appellant William L. Sledge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant Errick J. Cooks.
David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant Napoleon O. Kimble.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
Appellant Eddie L. Quinn, III.

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Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie and
Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
INTRODUCTION
Defendants William Lamont Sledge (Sledge), Errick Jamell Cooks (Cooks),
Napoleon Oneal Kimble (Kimble), and Eddie Lee Quinn, III (Quinn) appeal from
judgments of conviction entered after a jury trial. The defendants were charged with five
counts of attempted willful, deliberate, premeditated murder, in violation of Penal Code1
sections 187, subdivision (a), and 664.
The defendants were found not guilty of attempted murder. However, they were
found guilty of the lesser included offense of attempted voluntary manslaughter (§§ 192,
subd. (a), 664) in counts 1 through 5. As to counts 1 through 5, regarding Cooks,
Kimble, and Sledge, the jury found the personal firearm use (§ 12022.5, subd. (a)) and
the armed principal allegations (§ 12022, subd. (a)(1)) to be true. As to counts 1 through
5 regarding Quinn, the jury found the personal firearm use and armed principal
allegations to be false.2
Defendants Cooks, Kimble, and Sledge were each sentenced to a total of 16 years
and 4 months in state prison as follows: On base count 1, the three defendants were
sentenced to the midterm of three years, plus the midterm of four years for the section
12022.5, subdivision (a), enhancement, which totaled seven years. On each of counts 2
1
All further statutory references will be to the Penal Code, unless otherwise
indicated.
2
Regarding Quinn, the trial court found him in violation of his probation in case
number MA025218, based on the evidence in the instant case.

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through 5, the defendants were sentenced to 12 months (one-third the midterm of 36
months), plus 16 months (one-third the midterm of 4 years for the section 12022.5,
subdivision (a), enhancement), which totaled a consecutive term of 28 months for each
count. The section 12022, subdivision (a)(1), enhancements were stricken in counts 1
through 5.
Defendant Quinn was sentenced on base count 1 to the midterm of three years. On
each of counts 2 through 5, he was sentenced to a consecutive term of one year (one-third
the midterm of three years). Quinn was sentenced to a total of seven years in state prison.
Quinn was also sentenced to a consecutive term of one year and four months for the
probation violation in case number MA025218. We affirm the convictions of each
defendant.
FACTS
On the evening of September 26, 2003, Joseph Sanchez (Joseph)3
parked his
Chevrolet Tahoe at an angle facing the wrong direction. Joseph, who was on parole for a
1996 conviction of an assault with a firearm, was in the driver’s seat of the Tahoe, his
nephew Jesus Sanchez (Jesus) was in the front passenger seat, and his friend Jose
Quintero (Jose) was in the back passenger seat. The occupants of the Tahoe were talking
to Carlos Arellano (Carlos) and Omar Arellano (Omar), who were on the sidewalk. A
black Toyota Camry with a moon roof slowly moved toward the Tahoe. Joseph made
eye contact with four Black men who were in the car. Joseph then heard gunshots and
saw that three of the men in the car—the two passengers in the back seat and the front
3
For ease of reference, the five victims in the instant case will be referred to by
their first names.

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seat passenger—had guns and were firing.4
The car stopped behind the Tahoe and Joseph
heard more than 10 shots fired. The car then drove away.
Joseph tried to chase the Toyota but was unable to catch it, so he returned to where
the shooting took place. Omar and Carlos had both been shot in the leg. After the
defendants were apprehended, Joseph was taken to an in-field show up, where he
identified Cooks and Kimble as two of the men in the Toyota.
Gunshot residue tests were conducted on all the defendants, but gunshot residue
was found only on Sledge. The Tahoe had a bullet mark on its right front hubcap and a
bullet mark above its rear right taillight.
When the police talked to Joseph, he did not mention that he was on parole or that
he attempted to chase the Toyota. Joseph told police that he was standing outside the car
when the shooting occurred, but actually Joseph was sitting inside the Tahoe.
Los Angeles Police Officer Matthew Plugge (Plugge) testified as a gang expert
concerning the Pacoima Piru Bloods (PPB) gang, which was primarily Black. PPB
members tended to wear red clothing.5
Plugge opined that all the defendants were PPB
members. At the time of the shooting, there was an ongoing rivalry between PPB and
Sanfers, a predominantly Hispanic gang, in the area where the shooting occurred.
4
According to a police officer who arrested defendants shortly after the shooting,
Sledge was sitting in the back seat behind the driver, Quinn. Kimble was in the front
passenger seat, and Cooks was sitting in the back seat behind him. Joseph testified that
Cooks was in the front passenger seat, while Kimble was in the back seat behind the
driver. Joseph identified Cooks as one of the shooters. When Omar made identifications
from a photo lineup, he identified Sledge as being in the front passenger seat and stated
that he was unsure if the front passenger fired a gun. At the preliminary hearing, Omar
stated that Quinn was in the back seat behind the driver and Sledge was in the front seat,
but he was unsure if Sledge was the driver or the passenger. Carlos testified that there
were three shooters, two in the back seat and one on the driver’s side, but not the driver.
5
At the time of their arrest, Sledge was wearing a red, white, and black Falcons
football jersey; Quinn was wearing a red plaid shirt, red shoelaces, and a red belt; Kimble
was wearing a Philadelphia Sixers jersey with red on the body of the shirt and black
sleeves, and red belt; and Cooks was wearing a white shirt.

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Defense6
On the night of September 26, 2003, Quinn was driving the Toyota Camry and
Kimble was in the front passenger seat. Sledge was sitting in the back seat behind Quinn,
and Cooks was in the back seat behind Kimble. As they drove down the street, a Tahoe
was parked at an angle on the wrong side of the street. They slowed down, not knowing
if the Tahoe was coming or going. As they passed the Tahoe, they heard gunshots and
thumping sounds. Sledge testified that he was scared; he pulled out a .40 caliber Beretta
semiautomatic handgun and opened fire. He was not aiming at anyone and did not know
how many times he fired. When the police started following them, he threw the gun out
of the car through the open sunroof.
Sledge acknowledged that he was an associate of PPB but testified that he had
never fired a gun prior to that night. Sledge also testified that Kimble and Quinn were
members of PPB.
CONTENTIONS
7
The defendants contend that the trial court violated their constitutional rights by
finding that Omar was unavailable as a witness and allowing the jury to be read his
preliminary hearing testimony.
Defendants Sledge, Cooks and Kimble claim that there was no substantial
evidence to support the attempted voluntary manslaughter convictions as to counts 3, 4
and 5, relating to Jesus, Joseph and Jose.
Defendant Quinn asserts that his attempted voluntary manslaughter convictions
must be reversed, because the trial court’s erroneous instructions, including CALJIC
6
Counsel for all defendants agreed that all defense witnesses were called on behalf
of all defendants.
7
All defendants join in issues raised by co-defendants in the appeal. (Cal. Rules of
Court, rule 13; People v. Stone (1981) 117 Cal.App.3d 15, 19, fn. 5.)

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Nos. 8.66.1 and 3.01, allowed the jury to convict him without first finding that he had the
specific intent to kill each of the victims.
Defendant Sledge claims that the cumulative effect of several instances of
prosecutorial misconduct deprived him of a fair trial. Defendant Sledge also asserts that
the trial court violated his due process rights by allowing improper expert testimony.
Defendant Cooks claims that the trial court abused its discretion in denying him a
Marsden8
hearing before his sentencing. Defendant Cooks further claims that his right to
a jury trial was denied when he was sentenced to consecutive terms based on facts
beyond those found to be true by the jury.
DISCUSSION
The Unavailability of Omar Arellano
The defendants contend that the trial court’s finding that witness Omar was
unavailable, and the subsequent admission of his preliminary hearing testimony, violated
their constitutional right to confrontation. We disagree.
Prior to commencement of testimony, the trial court held a hearing to consider
evidence and argument concerning the admission of Omar’s preliminary hearing
testimony. The hearing was held on January 21, 2005 and January 24, 2005. The
prosecutor called three witnesses in its effort to have the trial court declare Omar to be
unavailable.
The first prosecution witness called was Craig Ratcliff (Ratcliff), an investigator in
the district attorney’s office. Beginning on January 10, 2005, Ratcliff tried to locate
Omar by conducting computer and record checks. He checked with the California DMV
and conducted a United States DMV check to determine if Omar had a driver’s license in
8
People v. Marsden (1970) 2 Cal.3d 118.

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another state. He checked for wants or warrants. He also checked Lexis Nexis to
determine whether Omar had any addresses identified through the public records system.
Ratcliff had some information that Omar may have had possible connections to
Virginia or Washington. There was a social security number listed on a Virginia record,
but Ratcliff did not follow up regarding that number. Ratcliff found a California
reference to a traffic accident occurring on January 19, 2003, involving a person with the
same name as Omar, but there was no California driver’s license number or address
information. Based on the vehicle’s records, Ratcliff learned that the registered address
was in Lakeview Terrace, and the vehicle’s registered owner had the same last name as
Omar. Ratcliff gave this information to Los Angeles Police Officer Pedro Cabunoc
(Cabunoc) on January 11, 2005.
Ratcliff prepared a due diligence checklist detailing his efforts to locate Omar.
This list was provided to the prosecutor and defense attorneys. Ratcliff did not
personally search for or contact Omar’s brother, Carlos.
The prosecutor called Cabunoc. Cabunoc was present at the preliminary hearing
on March 4, 2004 and considered the victims who testified, including Omar, to be “very
cooperative” with the investigation. Prior to leaving Omar and Carlos at their residence,
Cabunoc advised both to contact him if they moved from their apartment or moved out of
state. Between the time of the preliminary hearing and December 15, 2004, Cabunoc did
not make any efforts to contact Omar. On December 15, 2004, Cabunoc went to the
residence of Omar and Carlos (the address at the time of the preliminary hearing),
knocked on the door, and left his card. On the same day, he learned that Omar and
Carlos no longer resided at that address and might have moved to Washington or Oregon.
Cabunoc continued to return to that residence in an effort to contact Omar and Carlos’
family members, who still lived there.
On January 5, 2005, Cabunoc checked the residence again and contacted Janeth
Ruiz (Ruiz), who was the sister-in-law of Omar and Carlos. Ruiz told Cabunoc that she
had no contact information for them but informed Cabunoc that Omar was in Washington
and Carlos was in Oregon. Ruiz told Cabunoc that she “tried to contact [their] mother

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and see if she had any information” and “that she could then relay the information back to
[Officer Cabunoc].” Cabunoc left a business card with his information for Ruiz to
contact him.
Several days later, Cabunoc went back to the residence and contacted Ruiz.
Cabunoc received the telephone number of Carlos and Omar’s mother and talked,
through an interpreter, to the father of Omar and Carlos. The father advised that Omar
was in Mexico and he had no contact number for Omar, but he would have Carlos call.
On January 11, 2005, Cabunoc received a call from Carlos. Carlos told him that
he might not be able to afford the cost of transportation to return to California for trial.
Cabunoc indicated that he would help with transportation expenses. Carlos told Cabunoc
that Omar was in Mexico conducting business and would not be able to return until
February. Carlos told Cabunoc that he was having trouble contacting Omar but would
attempt to contact Omar.
Cabunoc did not have a social security number for Omar. He did not know of a
contact in Virginia regarding Omar. It appeared to Cabunoc that Omar was a Mexican
citizen. He did not make any attempts to contact the Mexican Consulate or the American
Consulate in Mexico and did not prepare a subpoena for Omar.
The third witness called by the prosecution was Heidi Espinosa (Espinosa), a
witness coordinator for the District Attorney’s Office. During the week of January 10,
2005, Espinosa was asked to contact Carlos. She contacted him and asked about Omar.
Carlos told her that he could not reach Omar. On January 18, 2005, Espinosa learned
from Carlos that Omar was in Puerto Vallarta on vacation and would return in February.
Carlos had obtained this information from his grandmother, who lived in Mexico. At that
time, Carlos indicated that he could not reach his grandmother or Omar. Since January
18, 2005, Espinosa had remained in contact with Carlos, but he had not provided
Espinosa with any new information concerning Omar’s whereabouts.
Inasmuch as a defendant has the right to confront witnesses against him (U.S.
Const., 6th and 14th Amends.; Cal. Const., art. I, § 15), prior testimony of a witness may
be admitted only under certain conditions. (People v. Enriquez (1977) 19 Cal.3d 221,

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235.) The witness must be unavailable and must have given the prior testimony at
previous judicial proceedings against the same defendant where the witness was subject
to cross-examination by the defendant. (Ibid.; see Evid. Code, § 1291.)
A witness is unavailable if the witness is “[a]bsent from the hearing and the
proponent of his or her statement has exercised reasonable diligence but has been unable
to procure his or her attendance by the court’s process.” (Evid. Code, § 240,
subd. (a)(5).) In criminal cases, “the prosecution ‘must make a good faith effort and
exercise reasonable diligence [in attempting] to procure the witness’s appearance. ’”
(People v. Robinson (1991) 226 Cal.App.3d 1581, 1585, quoting from People v. Hovey
(1988) 44 Cal.3d 543, 562.) The proponent of the evidence has the burden of proving by
a preponderance of the evidence due diligence and thus unavailability. (People v.
Enriquez, supra, 19 Cal.3d at p. 235; People v. Turner (1990) 219 Cal.App.3d 1207,
1213.) The circumstances which should be considered in determining whether due
diligence was exercised include when the attempt was made to compel the witness’s
attendance, the nature of the attempts made, characteristics of the witness and whether
there was reason to believe the witness would appear for trial. (See People v. Louis
(1986) 42 Cal.3d 969, 991-993.)
The record shows that the prosecution made numerous attempts to try to locate
Omar. The effort began in mid-December 2004 by Officer Cabunoc. He continued to
attempt to contact someone at the address he had for Omar. Cabunoc eventually learned
from Carlos that Omar was in Mexico, and Carlos indicated that he was having problems
reaching Omar but would try and provide additional information to him.
Beginning on January 10, 2005, Ratcliff started his efforts to locate Omar. In
addition, Espinosa maintained contact with Carlos in order to obtain information
regarding Omar’s whereabouts.
The prosecution cannot be faulted for its loss of contact with Omar and its
attempts to locate him as trial approached. As in People v. Wise (1994) 25 Cal.App.4th
339, 344, “the witness was a citizen-victim. He was not facing criminal charges and the
record does not indicate any reason for the prosecution to believe he would disappear.”

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When the prosecution learned he no longer was at his former address, it made reasonable
attempts to try to locate him. (People v. Cummings (1993) 4 Cal.4th 1233, 1298.)
Once the prosecution learned that Omar was in Mexico, however, it made no
serious attempts to locate him and compel his attendance at trial. The mere fact that he
was in Mexico did not excuse further efforts to obtain his presence at trial. This failure is
sufficient to support a finding of lack of due diligence. (People v. Sandoval (2001) 87
Cal.App.4th 1425, 1443-1444.)
Any error in declaring Omar unavailable as a witness and admitting his
preliminary hearing testimony was, however, harmless beyond a reasonable doubt.
(People v. Sandoval, supra, 87 Cal.App.4th at p. 1444.) First, his testimony was largely
cumulative to that of the other witnesses. Second, he identified only two of the
defendants, Sledge and Quinn, and his testimony as to where they were sitting in the
Toyota contradicted that of the other witnesses, rendering his testimony suspect.
Inasmuch as all four defendants were convicted, it is clear that Omar’s testimony was not
the crucial factor in the jury’s determination.
The Evidence Supporting the Attempted Voluntary Manslaughter Convictions as to
Counts 3, 4 and 5 (Jesus, Joseph and Jose)
The defense argues that there was insufficient evidence to support the convictions
for attempted voluntary manslaughter as to the three occupants of the Tahoe. We
disagree.
In reviewing a sufficiency of evidence claim, the reviewing court’s role is a
limited one. The test to determine sufficiency of evidence is whether, on the entire
record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.
On appeal, the reviewing court must view the evidence in the light most favorable to the
prevailing party and must presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence. (People v. Smith (2005) 37 Cal.4th
733, 738-739.)

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There was substantial circumstantial evidence of the defendants’ intent to kill the
three victims inside the Tahoe. The evidence showed that there were three shooters in the
Toyota. Joseph testified that the Toyota’s front seat passenger and the back seat
passenger behind the front seat passenger pointed their guns toward the Tahoe. The
Tahoe had a bullet mark on its front right hubcap and another bullet mark above its right
rear taillight. That there were three occupants in the Tahoe and only two bullets hit the
Tahoe does not require the conclusion that the evidence is insufficient to support the
convictions. In People v. Smith, supra, 37 Cal.4th at page 748, the court found
substantial evidence to support a defendant’s two convictions for attempted murder even
though the defendant fired a single bullet at a vehicle, narrowly missing both the driver
and her baby in the back seat.
Further, Carlos testified that the shooter in the back seat of the Toyota pointed his
gun toward the Tahoe. Joseph testified that the occupants of the Toyota made eye contact
with the occupants of the Tahoe. These circumstances also support an inference of intent
to kill the occupants of the Tahoe.
In addition to the circumstantial evidence of the specific intent to kill the Tahoe
victims, there is evidence that the victims in the Tahoe were in the “kill zone” when the
three shooters fired at Carlos and Omar, who were standing next to the Tahoe. Given that
the Tahoe’s occupants were in close proximity to Carlos and Omar when the shooting
began, there is sufficient evidence showing that the three shooters in the Toyota intended
to kill not only Carlos and Omar, but also the Tahoe’s occupants. (People v. Smith,
supra, 37 Cal.4th at pp. 745-746; People v. Bland (2002) 28 Cal.4th 313, 329-331.)
The Trial Court’s Instructions (CALJIC Nos. 8.66.1 and 3.01)
Quinn, the driver of the Toyota, claims that his attempted voluntary manslaughter
convictions must be reversed because the trial court’s erroneous instructions, specifically

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CALJIC Nos. 8.66.19
on intent to kill everyone within a zone of risk and 3.0110
on aiding
and abetting, permitted the jury to convict him without first finding that he harbored the
specific intent to kill each of the victims. Counsel for Quinn was aware that CALJIC
Nos. 8.66.1 and 3.01 would be given to the jury and failed to object to the instructions.
A defendant has an obligation to object and request clarification if he believes a
jury instruction is unclear. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.) As a
general rule, failure to object to an instruction given waives any objection thereto.
(People v. Rivera (1984) 162 Cal.App.3d 141, 146.) An exception to the rule of waiver
arises, however, if the instruction affected defendant’s substantial rights. (§ 1259;
Rivera, supra, at p. 146.) Defendant’s substantial rights are affected if the instruction
results in a miscarriage of justice, making it reasonably probable that absent the
erroneous instruction defendant would have obtained a more favorable result. (Rivera,
supra, at p. 146; see Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818,
836.)
Here, any error in giving both CALJIC Nos. 8.66.1 and 3.01 was harmless. First,
the parties did not argue about concurrent intent and the “kill zone” when addressing the
issue of Quinn’s liability as an aider and abettor. Rather, both the prosecutor and counsel
9
CALJIC No. 8.66.1 provides: “A person who primarily intends to kill one person,
may also concurrently intend to kill other persons within a particular zone of risk. The
intent is concurrent when the nature and scope of the attack, while directed at a primary
victim, are such that it is reasonable to infer the perpetrator intended to kill the primary
victim by killing everyone in that victim’s vicinity. [¶] Whether a perpetrator actually
intended to kill the victim, either as a primary target or as someone within a zone of risk
is an issue to be decided by you.”
10
CALJIC 3.01 provides: “A person aids and abets the commission of a crime when
he: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With
the intent or purpose of committing or encouraging or facilitating the commission of the
crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the
commission of the crime. [¶] Mere presence at the scene of a crime which does not itself
assist the commission of the crime does not amount to aiding and abetting. [¶] Mere
knowledge that a crime is being committed and the failure to prevent it does not amount
to aiding and abetting.”

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for Quinn focused on the issue of whether Quinn had the requisite specific intent to kill
the victims. Specifically, they focused on Quinn’s acts of driving the Toyota slowly by
the victims to argue either that he knew what was going to happen or that he was
completely unaware.
Second, there was strong circumstantial evidence that Quinn had the requisite
intent to kill the victims. He drove the Toyota, slowing by the victims and positioning
the car so that the other defendants could shoot at the victims and easily escape by
driving away after the shooting, and allowing his codefendants to shoot at the victims
from the Toyota multiple times. In addition, Quinn was dressed in gang attire, driving a
car containing fellow PPB gang members, in an area where there was an ongoing rivalry
between PPB and Sanfers gangs. It is not reasonably probable that the jury would have
found Quinn intended to further his codefendants’ unlawful purpose but not that he
intended to kill the victims had it been instructed differently. (People v. Watson, supra,
46 Cal.2d at p. 836; People v. Rivera, supra, 162 Cal.App.3d at p. 146.)
The Allegations of Prosecutorial Misconduct
Defendant Sledge claims that the cumulative effect of several instances of
prosecutorial misconduct deprived him of a fair trial. We disagree.
A. Question to Carlos
Defendant Sledge complains that the prosecutor asked Carlos, “Now when you
began to run you were running for your life obviously?” The question and answer “yes”
given by Carlos were both stricken. The jury was given instruction CALJIC No. 1.02
indicating that questions by attorneys are not evidence and if any evidence is stricken by
the court, it is to be disregarded. A timely admonishment is presumed to have cured any
harm caused by any asserted misconduct. (See People v. Wharton (1991) 53 Cal.3d 522,
565-566.)

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B. Questions to Sledge Regarding Gunshots
Although Sledge challenges the prosecutor’s use of the words “supposedly” and
“you claim” during cross-examination, he did not object to their use below. This waives
any claim of prosecutorial misconduct on appeal. (People v. Stansbury (1993) 4 Cal.4th
1017, 1056; People v. Lewis (1990) 50 Cal.3d 262, 282.) In any event, it is not
misconduct to challenge the truthfulness of a defendant’s testimony (People v. Carter
(2003) 30 Cal.4th 1166, 1207-1208; People v. Smith (2003) 30 Cal.4th 581, 614), and any
possible harm was cured by CALJIC No. 1.02, which instructed the jury not to “assume
to be true any insinuation suggested by a question asked a witness” (People v. Holt
(1997) 15 Cal.4th 619, 662 [presumption jury followed instructions given]; People v.
Delgado (1993) 5 Cal.4th 312, 331 [same]).
C. Questions to Sledge Regarding the Toyota
Defendant Quinn asserts that the prosecutor committed misconduct in asking a
question that may have implied that the defendants were fleeing from the police and
alleging that the prosecutor was calling the witness a liar. The objection to the form of
the question was sustained as argumentative. The question was not answered by Sledge
and the jury was instructed with CALJIC No. 1.02 not to “assume to be true any
insinuation suggested by a question asked a witness.” Again, this timely admonishment
is presumed to have cured any harm caused by any asserted misconduct. (See People v.
Wharton, supra, 53 Cal.3d at pp. 565-566.)
D. Alleged Mischaracterization of Carlos’ testimony
Sledge complains that the prosecutor misstated evidence or argued facts not in
evidence during questions asked of Carlos. The questions by the prosecutor were her
attempt to clarify Carlos’ answers during his testimony. As previously stated, the jurors
were instructed that an attorney’s statements are not evidence. (CALJIC No. 1.02.) The
jurors also were instructed that they were “the sole judges of the believability of a
witness.” (CALJIC No. 2.20.) We presume the jury followed these instructions (People

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v. Holt, supra, 15 Cal.4th at p. 662; People v. Delgado, supra, 5 Cal.4th at p. 331) and
disregarded any mischaracterizations of Carlos’s testimony.
E. Closing Argument Comments
Sledge objects to the prosecutor’s comments that the defense had the jury focus on
only one of the victims, Joseph, without remembering that there were four other victims
who did not share the same criminal history as Joseph. Sledge complains that there was a
question about the possible prior criminal history of Jesus. According to Sledge, the
prosecutor misspoke when she said that there were “four other victims” who didn’t have
the history of Joseph. We find no prejudice because Jesus did not testify at trial and the
issue of his alleged criminal past was not relevant because the jury did not evaluate Jesus’
version of events.
F. Prosecutor Arguing Personal Opinion
Sledge objects to the personal opinion comment made by the prosecutor during
closing argument when the prosecutor stated: “What do you think they were up to that
night? Going to a Skate Club? I don’t think so.” Assuming this was an improper
statement of personal belief (People v. Sandoval (1992) 4 Cal.4th 155, 180), Sledge’s
claim of prosecutorial misconduct based thereon is waived by his failure to object below
(People v. Stansbury, supra, 4 Cal.4th at p. 1056; People v. Lewis, supra, 50 Cal.3d at
p. 282). Moreover, any error was harmless, in that it is not reasonably probable that the
prosecutor’s comment contributed in any way to the verdicts. (People v. Bolton (1979)
23 Cal.3d 208, 214; People v. Watson, supra, 46 Cal.2d at p. 836.)
G. Burden of Proof
Sledge objected to comments by the prosecutor during closing argument that
“there is nothing that prevented anyone else from requesting, including the defense, to
have further analysis done if it was warranted. [¶] And I’m not saying the defense has to
put on evidence. That’s not what I’m saying. [¶] We do have the burden of proof

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beyond a reasonable doubt; but if the defense is going to throw something out there, they
need to back it up.”
Prosecutorial misconduct does occur if the prosecutor suggests to the jury that the
prosecution does not have the burden of proving every element of the crime charged, but
that the defendant has the burden of presenting some affirmative evidence demonstrating
a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 831-832.) The prosecutor is
permitted to comment, however, on the defense’s failure to introduce material evidence
or call logical witnesses. (People v. Medina (1995) 11 Cal.4th 694, 755; People v.
Mincey (1992) 2 Cal.4th 408, 446.) That was all the prosecutor did here, commenting on
the defense’s failure to have done any further analysis it believed was warranted.
The prosecutor reiterated that the prosecution had the burden of proof beyond a
reasonable doubt. In addition, the jury was instructed with CALJIC No. 2.90 [regarding
the presumption of innocence, reasonable doubt, and the People’s burden of proof] and
CALJIC No. 2.61 [“defendant may choose to rely on the state of the evidence and upon
the failure, if any, of the People to prove beyond a reasonable doubt every essential
element of the charge against him”]. We thus find no misconduct.
The Contentions Concerning Expert Testimony
Defendant Sledge alleges that the trial court allowed improper testimony by gang
expert Officer Plugge. We disagree.
During Plugge’s testimony, the prosecutor asked him if the events of
September 26, 2003 arose from the rivalry between Sanfers and PPB. He opined that
they did. She then asked him a hypothetical based on certain facts of this case.
Defendants objected to the hypothetical as improper, in that it sought testimony as to
defendants’ subjective intent relative to the shootings. The trial court overruled the
objection, and Plugge opined that the shooting was committed for the benefit of PPB and
gave his reasons for his opinion.
“A witness is qualified to testify as an expert if the witness has special knowledge,
skill, experience, or education pertaining to the matter on which the testimony is offered.

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(Evid. Code, § 720.)” (People v. Mendoza (2000) 24 Cal.4th 130, 177.) Expert opinion
testimony is admissible if the subject matter of the testimony is “sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact.” (Evid.
Code, § 801, subd. (a); People v. Gardeley (1996) 14 Cal.4th 605, 617.) In People v.
Olguin (1994) 31 Cal.App.4th 1355, 1371, the court found that expert testimony
regarding gangs “is admissible even though it encompasses the ultimate issue in the
case.”
Defendant’s reliance on People v. Killebrew (2002) 103 Cal.App.4th 644 is
misplaced. In Killebrew, defendant was charged with felony conspiracy to possess a
handgun. An expert on criminal street gangs testified that when one gang member in a
car possesses a gun, every other gang member in the car knows of the gun for their
protection. The court found that this was improper expert opinion on an ultimate issue:
defendant’s subjective intent and knowledge. The evidence should have been excluded
because it was the only evidence connecting the defendant to the firearm he was charged
with conspiring to possess. The Killebrew court concluded that “[s]ince the erroneously
admitted testimony provided the only evidence to support the conspiracy theory, reversal
of the judgment is required.” (Id. at p. 659.)
By contrast, in Gardeley, the court approved the admission of expert gang
testimony. The expert was given the facts of the case and asked, hypothetically, whether
the described incident would be “‘gang-related activity.’” (People v. Gardeley, supra, 14
Cal.4th at p. 619.) The expert opined “that it was a ‘classic’ example of gang-related
activity, explaining that criminal street gangs rely on such violent assaults to frighten the
residents of an area where the gang members sell drugs, thereby securing the gang’s
drug-dealing stronghold.” (Ibid.) The challenged evidence in the present case was
similar in nature and therefore admissible.
Cooks’ Marsden Claim
Defendant Cooks claims that the trial court abused its discretion by denying him a
Marsden hearing before his sentencing. Following argument of counsel, Cooks was

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invited to make a statement. He advised the court that he thought that he was wrongfully
convicted of the personal use allegation. He also indicated that his attorney had rendered
ineffective assistance of counsel; although she did what she could on his behalf, it wasn’t
good enough. He cited Penal Code section 1181, which allows a new trial or a reduction
to a lesser charge where the verdict or finding is contrary to the law or evidence. He then
requested a new and a fair trial with a state appointed or more effective counsel. The
court then thanked Cooks but stated that he was talking about a motion for a new trial,
and that needed to be brought by his attorney. Cooks was then sentenced as previously
indicated.
The trial court reasonably interpreted Cooks’ comments as a request for a new trial
rather than a request to substitute counsel. Although Cooks mentioned ineffective
assistance of counsel, the main thrust of his statement was that he was entitled to a new
trial, and he specifically cited Penal Code section 1181. The trial court thus was not
required to hold a Marsden hearing. (People v. Dickey (2005) 35 Cal.4th 884, 920.)
Cooks’ Claim of Sentencing Error
Cooks claims that under Blakely v. Washington (2004) 542 U.S. 296, the
imposition of consecutive sentences based on facts that were neither found by the jury
nor admitted by him violated his Sixth Amendment right to a jury trial. He concedes
correctly that we must reject this claim under People v. Black (2005) 35 Cal.4th 1238
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises it to
preserve the issue for federal review.11
11
The United States Supreme Court has granted certiorari in a case presenting this
issue. (People v. Cunningham (Apr. 18, 2005, A103501 [nonpub. opn.]) sub nom.
Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1329].)

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DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED
JACKSON, J.*
We concur:
MALLANO, Acting P. J.
VOGEL, J.
*
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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