P. v. Craig

Filed 8/31/10 P. v. Craig CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DEJOHN LEE CRAIG,
Defendant and Appellant.
B214894
(Los Angeles County
Super. Ct. No. TA091166)
APPEAL from a judgment of the Superior Court of Los Angeles County. David
Sotelo, Judge. Affirmed.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant
and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and
E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________

-- 1 of 20 --

2
Appellant DeJohn Lee Craig appeals from a judgment entered after a jury
convicted him of first degree murder. (Pen. Code, § 187, subd. (a).)1 The jury found true
the allegations that appellant personally and intentionally discharged a firearm which
proximately caused great bodily injury and death (§ 12022.53, subds. (b)–(d)); and the
offense was committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1) (C)).
The trial court sentenced appellant to state prison as follows: 25 years to life for
first degree murder, plus an additional 25 years to life for the section 12022.53,
subdivision (d) allegation. The trial court stayed imposition of sentence on the additional
firearm enhancements pursuant to section 1170.1, subdivision (f). The trial court also
stayed imposition of sentence for the section 186.22, subdivision (B)(1)(C) gang
enhancement.
We affirm.
CONTENTIONS
Appellant contends that: (1) the trial court erred in denying appellant‘s motion for
new trial; (2) the gang expert‘s testimony usurped the jury‘s function; (3) the trial court
erred in refusing to instruct the jury on untimely disclosure of evidence; and
(4) cumulative errors require reversal.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we
must (People v. Ceja (1993) 4 Cal.4th 1134, 1138–1139), the evidence established the
following. On April 27, 2006, 17-year-old Anthony McKeithan was shot to death. He
sustained a gunshot wound to the back of the head, a wound to the chest, and a wound to
the left side of the thigh, any of which was fatal. McKeithan was not a known gang
member. At the time of the shooting, Alejandra C., Nikoshee J., and others heard
multiple gunshots. Alejandra C.‘s sister, Cynthia C., was the only one in the group who
1 All further statutory references are to the Penal Code unless otherwise indicated.

-- 2 of 20 --

3
did not hear the gunshots because she was listening to music on her iPod. Immediately
after they heard the shots, appellant ran toward them and asked to use a cell phone to call
someone for a ride. Appellant told the girls there had been a shooting, but before they
could hand over the cell phone, they heard sirens and he ran away. The sisters described
appellant as tall and slim, between 5 feet 9 inches and 5 feet 11 inches. Alejandra C. told
detectives that there were gaps in appellant‘s upper front teeth. Nikoshee J. identified
appellant from a photographic six-pack as the man who ran up to them. She testified at
the preliminary hearing that she recognized appellant from school. The sisters were
unable to identify appellant from a photographic six-pack as the man who ran up to them.
Appellant has gaps in his teeth.
On the day of the shooting, Norman Fletcher, a resident of the neighborhood, saw
appellant ―flying‖ around the corner, looking crazy like ―somebody had just done
something.‖ Fletcher knew appellant as DJ. Fletcher told police that appellant was
―sweating like a bull‖ and his ―eyes were big and he could see the whites of them.‖
Fletcher told police that appellant was with two other men who told him to ―get in the
house.‖ Fletcher identified appellant from a photographic six-pack as the man he saw
running. Fletcher told police that the day after he saw appellant running, appellant‘s
stepfather, Keith Jefferson told him ―You need to lay low and keep your mouth shut.‖
Fletcher felt threatened by Jefferson‘s size, facial expressions, intensity, and by the fact
that he lived nearby. At trial, Fletcher recanted the statements he made to the police. He
also denied that he had been threatened.
Kevin Smith, a resident of the neighborhood, heard multiple gunshots. Right
before the gunshots he heard a ―kid‖ plead ―don‘t shoot.‖ He saw a black male, about
5 feet 10 inches to 5 feet 11 inches tall running away with a revolver in his hand. Smith
then saw the victim bleeding on the ground and shouted out for somebody to call the
paramedics.
Leonel Lopez looked out his bedroom window and saw two African-American
males walking down the street. He heard a shot and saw one man on the ground. The

-- 3 of 20 --

4
shooter stood over the victim, shot him twice more, and then ran away holding a gun. He
described the shooter as tall and slim. The shooter stopped to talk to a group of people,
then ran, covering his face with his jacket, and putting the gun in his sweater pocket. He
was unable to identify the shooter from a photographic six-pack. Lopez admitted that he
felt threatened and was afraid to testify because of the gangs in his neighborhood.
Shavon Thomas, a member of the Nutty Block Crips gang, was convicted in
September 2007 of two counts of premeditated attempted murder in another case. The
Los Angeles County District Attorney‘s office agreed to strike the premeditated and
deliberate allegation and to recommend a term of 24 years in her case in exchange for
Thomas‘s testimony in this matter. Thomas testified that she had dated Koran Willborn,
a deceased leader of the Nutty Block Crips gang, who had been feared and respected
while he was alive. Thomas had status and influence with the gang because of her
relationship with Willborn. Appellant, known as ―Infant No Good‖ and his older brother,
Reggie Davis, known as ―No Good‖ were members of the Nutty Block Crips gang.
Older gang members will give younger members variations of their monikers as a sign of
honor if they think the younger members are capable of putting in work by shooting,
killing, robbing, stealing, and committing acts of retaliation against rival gangs. If the
younger gang members do not fulfill their responsibility of retaliating for actions
committed against the gang they will get disciplined. On the night of the shooting,
Thomas received a call from ―Deshawn Wood Williams,‖ a fellow gang member, who
told her that she ―better get the little homies out of her car because they just did
something stupid.‖ After they spoke, Thomas called Albert Fegan, a younger gang
member who lived with her and who used her car. Thomas told Fegan to meet her at her
house with appellant. The three met at around 9:00 p.m. that evening. When Thomas
accused Fegan of doing something ―stupid out of [her] car‖ appellant interjected that he
had done ―it.‖ He explained that he shot someone in retaliation for the murder of his
cousin ―Little‖ or ―Tiny‖ ―No Good,‖ and that Fegan was the driver. Thomas told both

-- 4 of 20 --

5
men to clean out her car. Two weeks later, Thomas found bullet shells in the back seat of
her car. At trial, Thomas identified appellant as the confessed murderer.
Los Angeles Sheriff‘s Department Detective John Duncan testified as a gang
expert that the Nutty Block Crips gang is a rival to the Tragniew Crips gang. He testified
that Thomas gained some of Willborn‘s status by dating him. Thomas became a shot
caller who planned robberies, assaults, attempted murders, thefts, and shootings, which is
unusual for a female gang member. He testified that the gangs thrive on fear and respect
and that retaliation is important for their reputations. Older gang members sponsor
younger gang members, and pass down their gang monikers to them. If a gang member
does not commit an act of retaliation on request, he will suffer consequences ranging
from a beating to being killed.
Detective Duncan testified that he had multiple contacts with appellant who was a
gang member. On January 2, 2006, appellant admitted his gang membership to two
detectives who filled out a field identification card on him. He was with another Nutty
Block Crip known as C-Crazy. At that time, he gave his moniker as DJ. On April 4,
2006, Detective Duncan contacted appellant in front of his house and filled out a field
identification card. In 2006 when Detective Duncan executed a search warrant on
appellant‘s house, he found two handguns in the garage. Appellant also hung out at gang
houses where guns were stored.
Detective Duncan testified that Donte Smith, known as ―Tiny No Good,‖ was
killed by Clarence McKeithan, a rival gang member. Clarence was the older brother of
Anthony McKeithan, the victim here. Reggie Davis, known as ―Big No Good,‖ told
Detective Duncan that he had been beaten up and ousted from the gang because he had
not retaliated for the murder of Smith. It was the responsibility of others within the ―No
Good‖ family to retaliate on the deceased‘s behalf. Detective Duncan testified that
hypothetically, if Davis did not fulfill his responsibility of retaliating against Tragniew
Park gang for killing Smith, the responsibility would fall on the next person in line.
Based on a hypothetical murder with the same facts, Detective Duncan opined that the

-- 5 of 20 --

6
murder of Anthony McKeithan was committed for the benefit of the Nutty Block Crips.
He opined that because Davis had not retaliated for Smith‘s murder and had been
punished for failing to retaliate, it would be ―common‖ for appellant to try to make his
reputation by taking on work that Smith had failed to attempt. He opined that the murder
benefited the Nutty Block Crips gang because a rival gang member‘s brother was shot in
retaliation for a previous murder of a Nutty Block Crips gang member, Fegan was also a
Nutty Block Crip gang member, Thomas testified that the murder was committed in
retaliation on behalf of the gang, and the murder was committed in an execution-style
manner.
Detective Duncan also identified the graffiti defacing a banner placed at a middle
school in tribute to Anthony McKeithan. Detective Duncan testified that only a gang
member would use the initials ―FUCC,‖ which means ―Fuck Compton Crip.‖ The banner
also was sprayed with the word ―Fragniew,‖ which is derogatory toward the Tragniew
gang, and the letters were crossed out, showing disrespect. References to McKeithan‘s
family were crossed out as well as the letters ―NBCC‖ (Nutty Block Compton Crip), in a
sign of disrespect.
The jury found appellant guilty as noted above and the enhancement allegations
were found true. The trial court denied appellant‘s motion for new trial.
DISCUSSION
I. The trial court did not abuse its discretion in denying appellant’s motion for
new trial
Appellant contends that the trial court abused its discretion in denying his motion
for new trial because it did not give adequate consideration to the newly obtained
evidence or its impact on the verdict. We disagree.
――‗The determination of a motion for a new trial rests so completely within the
court‘s discretion that its action will not be disturbed unless a manifest and unmistakable
abuse of discretion clearly appears.‘‖ [Citations.] ―‗[I]n determining whether there has

-- 6 of 20 --

7
been a proper exercise of discretion on such motion, each case must be judged from its
own factual background.‘‖ [Citations.] [¶] In ruling on a motion for new trial based on
newly discovered evidence, the trial court considers the following factors: ―‗1. That the
evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not
cumulative merely; 3. That it be such as to render a different result probable on a retrial
of the cause; 4. That the party could not with reasonable diligence have discovered and
produced it at the trial; and 5. That these facts be shown by the best evidence of which
the case admits.‘‖ [Citations.]‖ (People v. Delgado (1993) 5 Cal.4th 312, 328.) ―In
addition, ‗the trial court may consider the credibility as well as materiality of the
evidence in its determination [of] whether introduction of the evidence in a new trial
would render a different result reasonably probable.‘‖ (Id. at p. 329.) ―A motion for new
trial on the ground of newly discovered evidence is looked upon with disfavor.
[Citation.] The granting or denial of such a motion is within the sound discretion of the
trial court and, absent a clear showing of abuse of discretion, will not be reversed on
appeal.‖ (People v. Hernandez (1971) 19 Cal.App.3d 411, 416.)
Appellant‘s motion for new trial was based on the following purportedly newly
discovered evidence: a declaration by Shawn Williams stating that he did not call
Thomas on the night of the shooting and school records showing that appellant was at
school on the day Detective Duncan said he contacted appellant and prepared a field
identification card. In his motion for new trial, appellant also requested a continuance to
investigate a potential new witness named McCloud and to investigate Detective
Duncan‘s testimony in another matter.
On appeal, appellant contends that the evidence that Shawn Williams, not his son
Deshawn Williams, had called Thomas, was newly discovered and his counsel could not
have with due diligence discovered and produced it at trial. Appellant argues that
Thomas testified that ―Deshawn Wood Williams‖ had called her to warn her about the
shooting. He contends that after she testified, appellant‘s counsel believed that Thomas
was referring to Deshawn Williams. Appellant‘s counsel ―planned to impeach

-- 7 of 20 --

8
Ms. Thomas‘s testimony with the fact that ‗Deshawn Williams‘ was in custody on the
day of the shooting.‖ Appellant now contends that he had no reason to investigate Shawn
Williams prior to trial, because his importance ―did not become apparent until [Detective
Duncan‘s] testimony‖ clarified that Deshawn Williams‘s father Shawn Williams, had
called Thomas.
We are not persuaded that the evidence that Shawn Williams, rather than his son
Deshawn Williams, called Thomas was newly discovered or could not with reasonable
diligence have been discovered and produced at trial. The record shows that Thomas
testified that she received a warning call from Deshawn Williams, whose gang name was
―Wood.‖ Detective Duncan testified that Shawn Williams was in an intimate relationship
with Thomas and had called her to warn her of the shooting. Detective Duncan further
testified that Shawn Williams, also known as ―Wood‖ or ―Little Woody,‖ was the father
of Desmond Deshawn Williams, who was incarcerated. Thomas was recalled by the
prosecutor for the purpose of clarifying who called her. She testified that in the Nutty
Block Crips gang, three members are known as ―Big Wood,‖ ―Little Wood,‖ and ―Baby
Wood.‖ Thomas stated that she was in a relationship with Deshawn Williams, known as
―Little Wood,‖ who had called her. She testified that Deshawn Williams had a son,
known as ―Baby Wood.‖ One theme in the trial was that gang members adopt variations
of monikers of older gang members, and must uphold the reputation of the members
whose monikers they adopt. Therefore, had appellant‘s counsel exercised due diligence,
he would have discovered that there were three ―Woods‖ in the gang. He would have
discovered that one was Shawn Williams, and one was his son Deshawn Williams.
Appellant‘s counsel has not shown that he exercised reasonable diligence to determine
the differences between the gang members with similar monikers and the same last
names or that it was truly newly discovered.
In any event, even if we found that appellant could not with reasonable diligence
have discovered the purported newly discovered evidence, we cannot conclude that it was
probable that there would have been a different result had the proffered evidence been

-- 8 of 20 --

9
admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Shawn Williams‘s declaration
in support of the motion for new trial, stated that Thomas‘s testimony ―regarding
statements that I allegedly made to her, are untrue in [regards] to anything to do with the
murder of [McKeithan] on [April 27, 2006]‖ and that ―I never called or talked to her on
that date or told her anything, about anyone, using her vehicle on the day in question.‖
Appellant contends that if ―Shawn Williams testified that he never called Thomas on the
day of the shooting and never told her about anyone using her vehicle that day, the jury
may have concluded that Thomas was lying about the incident as a whole and about
appellant‘s confession.‖ But, the proffered evidence would have been useful only as
impeachment. (People v. Moten (1962) 207 Cal.App.2d 692, 698 [―newly discovered
evidence which would merely impeach or discredit a witness does not compel the
granting of a new trial‖].) The substance of Thomas‘s testimony related to her
conversations with Fegan and appellant after the challenged telephone call. She testified
that appellant confessed to the murder. Furthermore, in addition to Thomas‘s testimony,
the evidence against appellant was compelling. Eyewitnesses described the shooter as a
tall, slim African-American. Appellant was identified as the man fleeing the scene of the
crime shortly after the shooting who ran when he heard sirens. A witness saw appellant
running around the corner, sweating like a bull, with wide eyes. That witness was
subsequently warned by appellant‘s stepfather to say nothing. Finally, expert testimony
as well as Thomas‘s testimony explained that appellant had a motive for committing the
murder.
Appellant also contends on appeal that ―the relevance and importance of
appellant‘s school records could not have been discovered prior to trial and produced at
trial‖ because his counsel did not see the field identification card prepared by Detective
Duncan until shortly before the detective was set to testify. Regardless of whether
appellant has shown that his attorney exercised reasonable diligence to find records of his
school attendance at the time of trial, he has failed to show a reasonable probability that
the purported newly discovered evidence would change the result. As the trial court

-- 9 of 20 --

10
noted, the school charts ―may show [appellant] may have attended school that day,‖
putting the date of the field identification of appellant as a Nutty Block Crips gang
member in doubt. But the evidence of appellant‘s membership in the Nutty Block Crips
gang was strong. Detective Duncan testified that he had multiple contacts with appellant
who was a member of the Nutty Block Crips gang, appellant admitted to his gang
membership on January 2, 2006, to other detectives, appellant was known to hang out at
gang houses, and appellant was identified by Thomas as a Nutty Block Crips gang
member. Both Detective Duncan and Thomas testified that appellant was known as
―Infant No Good.‖
We are satisfied that the trial court‘s denial of the motion for new trial was not an
abuse of discretion.
II. The testimony of Detective Duncan in response to the hypothetical questions
posed by the prosecutor was not prejudicial
Appellant contends that because the hypothetical questions posed to Detective
Duncan specifically identified the parties including appellant, Davis, Smith, McKeithan,
and his brother Clarence, Detective Duncan‘s testimony was ―tantamount to offering an
opinion on appellant‘s guilt on the premeditated murder charge and the allegation that the
offense was committed for the benefit of the Nutty Block Crips [gang].‖ We find that the
testimony of Detective Duncan in response to the hypothetical questions posed by the
prosecutor was not prejudicial.
Evidence Code section 352 provides that a trial court may exclude evidence if its
probative value is substantially outweighed by the probability that its admission will
create a substantial danger of undue prejudice. Expert testimony concerning the culture,
habits, and psychology of gangs is admissible as subject matter which is sufficiently
beyond common experience so that the opinion of an expert would assist the trier of fact.
(People v. Gardeley (1996) 14 Cal.4th 605, 616–617.) ―‗Evidence of the defendant‘s
gang affiliation—including evidence of the gang‘s territory, membership, signs, symbols,
beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity,

-- 10 of 20 --

11
motive, modus operandi, specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime. [Citations.]‘ [Citation.]‖ (People v. Albarran
(2007) 149 Cal.App.4th 214, 224.) Expert opinion may form the basis from which a jury
can find that the crime comes within the ambit of a section 186.22 gang enhancement
pursuant to which the People must prove that the defendant committed a crime for the
benefit of a criminal street gang with the specific intent to promote criminal conduct by
gang members. (§ 186.22, subd. (b)(1); People v. Gardeley, supra, at pp. 616–617.)
Expert testimony has been offered to show the ―motivation for a particular crime,
generally retaliation or intimidation‖ and ―whether and how a crime was committed to
benefit or promote a gang[.]‖ (People v. Killebrew (2002) 103 Cal.App.4th 644, 657.)
―Generally, an expert may render opinion testimony on the basis of facts given ‗in
a hypothetical question that asks the expert to assume their truth.‘ [Citation.] Such a
hypothetical question must be rooted in facts shown by the evidence, however.
[Citations.] [¶] Expert testimony may also be premised on material that is not admitted
into evidence so long as it is material of a type that is reasonably relied upon by experts
in the particular field in forming their opinions. (Evid. Code, § 801, subd. (b);
[citations].) Of course, any material that forms the basis of an expert‘s opinion testimony
must be reliable. [Citation.] For ‗the law does not accord to the expert‘s opinion the
same degree of credence or integrity as it does the data underlying the opinion. Like a
house built on sand, the expert‘s opinion is no better than the facts on which it is based.‘
[Citation.]‖ (People v. Gardeley, supra, 14 Cal.4th at p. 618.)
Appellant cites People v. Vang (2010) 185 Cal.App.4th 309, 320, for the
proposition that ―the prosecution may not use a hypothetical question to conceal an
expert‘s improper testimony on the real defendants‘ subjective knowledge and intent.‖ In
that case, the court found the trial court had abused its discretion in permitting an expert
witness to offer an opinion as to what a particular defendant was thinking. (Id. at p. 319.)
The court also noted that a prosecutor cannot circumvent the rule by asking an expert a
hypothetical question that thinly disguises the defendant‘s identity. (Ibid.)

-- 11 of 20 --

12
People v. Phillips (1981) 122 Cal.App.3d 69 also offers guidance. In that case, the
prosecutor posed hypothetical questions which named the defendant and the victims. He
stated: ‗―I‘ll ask . . . that you assume the following facts: Number one, that the
defendant, Priscilla E. Phillips, did repeatedly and surreptitiously administer doses of a
cathartic sodium-type compound over a period of approximately 12 months to first one
adopted Korean orphan, Tia Phillips, . . . and then engaged in similar conduct with a
second adopted Korean orphan, Mindy Phillips, over a period of approximately one
month until this poisoning was discovered by hospital officials.‘‖ (Id. at p. 82.) The
defendant‘s objections that the hypothetical assumed the defendant was guilty, was
argumentative, and assumed facts not in evidence, were overruled. But, on a subsequent
objection to the use of the defendant‘s name, the trial court admonished the jury to
disregard the prosecutor‘s use of the defendant‘s name and instructed the prosecutor to
substitute the word ―defendant‖ for the defendant‘s name. (Id. at pp. 82–83.) The Court
of Appeal rejected the defendant‘s argument that the hypothetical may have led the jury
to believe that the expert was expressing an opinion about the defendant‘s mental
condition. (Id. at p. 83.) It concluded that any impropriety in the form of the question
could not have misled the jurors because the expert doctor explained he had never
examined the defendant and the trial court read CALJIC No. 2.82 which instructs the jury
to determine from all the evidence whether or not the facts assumed in a hypothetical
question have been proved.
Here, the prosecutor posed hypothetical questions to Detective Duncan using the
names of specific actors. For instance, the prosecutor asked: ―Well, hypothetically,
speaking, in order of sponsoring someone, assume the following facts: That a person by
the name of Reggie Davis, his moniker is Big No Good. And there is a Donte Smith
whose moniker is Tiny No Good; and DeJohn Craig whose moniker is Infant No Good.
Assuming those facts and with respect to the definition of sponsoring that you provided
earlier, would Infant No Good be a person that was capable of carrying, holding down
Big No Good‘s name?‖ In response to the hypothetical question, Detective Duncan

-- 12 of 20 --

13
replied, ―In my opinion, yes. Reputable and Nutty Block Crip gang member of the No
Good‘s status would not bring on someone with his name if he didn‘t think they would be
an active member of the gang.‖ 2
2 The prosecutor also asked: ―And hypothetically assume the following facts: that
it is the responsibility of Big No Good, Reggie Smith, to retaliate against the Tragniew
Park for killing Donte Smith, Tiny No Good, and he does not retaliate. Does that
responsibility then fall upon someone next in line?‖
Detective Duncan answered: ―Inside Nutty Block Crip, the way it is done, to
answer your question, Ma‘am, it becomes the responsibility of the individuals that are in
his family, that sponsored him, the older members that brought him on or the individual
on. And then it comes right after that the closest individuals inside his group within the
gang. It is the responsibility on them to lead the retaliation or to plan the retaliation. And
then after that, it is the gang‘s responsibility to retaliate. But foremost, it is the
responsibility of the individuals that are named after or named with the individual that
was killed.‖
Finally, the prosecutor asked: ―Sir, assume the following facts: Assume that on
May 24, 2005, somewhere on Central and Reeve bordering the territory of Nutty Block
Crips and Tragniew Park Crips, Donte Smith, aka Tiny No Good, was in that area and he
was walking; ? [sic] A rival gang member by the name of Clarence McKeithan, aka Little
T-Bone from Tragniew Park, approached him and approached him with a gun and shot
Donte Smith while Donte was walking; Clarence McKeithan shot Donte Smith in the
head, and Donte Smith fell on the ground; Once he fell on the ground, Clarence
McKeithan stood over Donte Smith striking him several times and once in the thigh; and
that was around May 24, 2005; ? [sic] and between that period and April 27 of 2006,
there was some type of heated animosity in the Nutty Block Community, their gang
territory, because Reggie Davis, aka No Good, did not retaliate, revenge Donte Smith‘s,
aka Tiny No Good, death since he was killed by a Tragniew Park; Then on April 27,
2006, a member of Nutty Block Crips by the name of DJ, aka Infant No Good, who is
family with both Reggie Davis, aka No Good, and also family with Donte Smith, aka
Tiny No Good, of Nutty Block Crips sees Anthony McKeithan walking down the street
on Caldwell going westbound towards Grandee between—Anthony McKeithan is
walking eastbound between Dwight and Grandee and walking towards Grandee in the
Nutty Block territory; ? [sic] Infant No Good, the defendant, sees Anthony McKeithan,
who is the brother of Clarence McKeithan, Little T-Bone from Tragniew Park. He sees
Anthony McKeithan and walks side by side with him; ? [sic] And at one point, it is heard
that Anthony McKeithan shouts something like ‗please don‘t shoot me‘; And at a certain
point immediately after that, DJ, Infant No Good from Nutty Block Crips, steps back,
points a gun—points a gun at Anthony McKeithan‘s head, fires, and shoots him in the

-- 13 of 20 --

14
Appellant contends that Detective Duncan‘s response to the above and other
hypothetical questions were inadmissible opinions on the specific intent of appellant and
other people. Appellant cites People v. Killebrew, supra, 103 Cal.App.4th at page 651,
for the proposition that the jury must decide whether a specific individual has specific
knowledge or possesses a specific intent. ―In Killebrew, in response to hypothetical
questions, the People‘s gang expert exceeded the permissible scope of expert testimony
by opining on ‗the subjective knowledge and intent of each‘ of the gang members
involved in the crime. [Citation.] Specifically, he testified that each of the individuals in
a caravan of three cars knew there was a gun in the Chevrolet and a gun in the Mazda and
jointly possessed the gun with everyone else in the three cars for mutual protection.
[Citation.] Killebrew does not preclude the prosecution from eliciting expert testimony to
provide the jury with information from which the jury may infer the motive for a crime or
the perpetrator‘s intent; Killebrew prohibits an expert from testifying to his or her opinion
head. And Anthony McKeithan falls over onto the ground; ? [sic] And the defendant, DJ,
Infant No Good from Nutty Block Crips, fires that gun several more times striking Mr.
McKeithan in the chest and one time in the thigh. Based on the totality of those
circumstances, based on those facts, was this crime committed for the benefit of, in
association with, or to promote the criminal street gang Nutty Block Crips?‖
Detective Duncan replied: ―Yes, it was. . . . My opinion is based on, number one,
when Donte Smith was murdered on Central and Reeve, he was Tiny No Good. My
opinion is also based on having conversations with Reggie Davis, Big No Good, as well
as Lavelle Smith. Those individuals told me that they both had problems inside the
neighborhood with Nutty Block Crip because there was no retaliation for Tiny No Good
being killed. And also it is common for DJ, Infant No Good, coming into the gang trying
to make his own reputation to take on the work that wasn‘t done by No Good. Based on
those conversations, the way the murder—the way Tiny No Good was killed and the way
that this murder happened, which was a walk-up, it was an execution style murder, my
opinion is that this was a retaliation murder and this was for the benefit of Nutty Block
Crip. And where it benefits Nutty Block Crip, when you retaliated against Tragniew
Park, you not only retaliated just shooting someone from Tragniew you shot the
individual‘s brother. Also, it is in association with because the driver was with another
Nutty Block Crip, Albert Fegan. So my opinion is that this was in retaliation.‖

-- 14 of 20 --

15
of the knowledge or intent of a defendant on trial. [Citation.]‖ (People v. Gonzalez
(2005) 126 Cal.App.4th 1539, 1550–1551.)
Here, the trial court overruled appellant‘s objection to the Detective‘s testimony
that based on the hypothetical, the murder was committed in retaliation for the benefit of
the gang. The trial court stated, ―I think the testimony here there is sufficient testimony
to draw that inference for purposes of that hypothetical.‖ In accordance with People v.
Phillips, supra, 122 Cal.App.3d at page 82, People v. Vang, supra, 185 Cal.App.4th at
page 320, and People v. Killebrew, supra, 103 Cal.App.4th at page 651, however, we
conclude that it was error to permit the use of the defendant‘s name and the names of the
other actors in the hypothetical. Use of such specifics in the hypothetic may lead the jury
to believe that the expert witness is expressing his opinion on the specific actors‘ intent
rather than the expectations of gang members in general when confronted with a specific
action. (People v. Killebrew, supra, at p. 658.) Thus, the trial court improperly admitted
the expert witness‘s testimony which went far beyond responding to a hypothetical rooted
in facts shown by the evidence. (People v. Gardeley, supra, 14 Cal.4th at p. 618 [expert
opinion testimony that a violent assault was a classic example of gang-related activity to
frighten residents of an area where gang members sell drugs was properly admitted to
show the attack was committed for the benefit of the gang].)
But, any error in admitting the hypothetical questions was harmless because there
was other strong evidence supporting the premeditated nature of the shooting and
appellant‘s intent to benefit the gang. (People v. Watson, supra, 46 Cal.2d at p. 836;
People v. Vang, supra, 185 Cal.App.4th at p. 322 [prejudicial error does not result in
every case in which a gang expert offers testimony on an ultimate issue such as
knowledge or intent, at least not in cases where there is other evidence to support an
inference that the alleged crime was committed for the benefit of the gang].) Evidence of
premeditation was supported by witness testimony that the shooter pointed the gun at
McKeithan‘s head, shot him, then shot him again as he lay bleeding on the sidewalk.
Any of the three wounds was fatal. Thomas testified that younger gang members are

-- 15 of 20 --

16
responsible to retaliate for killings committed by rival gangs. Appellant, a Nutty Block
Crips gang member, confessed to Thomas that he committed the murder in retaliation for
the shooting of his cousin ―Little‖ or ―Tiny‖ ―No Good,‖ who had been a more senior
Nutty Block Crips gang member. In addition to his response to the hypotheticals,
Detective Duncan testified that gangs must retaliate against other gangs for offenses
committed against them in order to maintain respect in the community. He testified that
an individual responsible for retaliating would be beaten up, shot, or killed if he did not
fulfill his responsibility. Moreover, he testified that Davis had problems because he did
not retaliate against ―Tiny No Good.‖ Other witnesses placed appellant running away
from the scene of the crime, though some recanted their testimony in fear of retribution
from the neighborhood gangs. Furthermore, gang graffiti was sprayed over a banner
placed in tribute to McKeithan.
We find that the testimony of Detective Duncan in response to the hypothetical
questions posed by the prosecutor was not prejudicial.
III. The trial court did not err in refusing to instruct the jury on the untimely
disclosure of evidence
Appellant contends that the prosecutor repeatedly failed to turn over information
to defense counsel in a timely manner and that the trial court committed reversible error
in refusing to instruct the jury on the untimely disclosure of evidence. We disagree.
Section 1054.1 provides: ―The prosecuting attorney shall disclose to the defendant
or his or her attorney all of the following materials and information, if it is in the
possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies: [¶] (a) The names and addresses of persons the
prosecutor intends to call as witnesses at trial. [¶] (b) Statements of all defendants. [¶]
(c) All relevant real evidence seized or obtained as a part of the investigation of the
offenses charged. [¶] (d) The existence of a felony conviction of any material witness
whose credibility is likely to be critical to the outcome of the trial. [¶] (e) Any
exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or

-- 16 of 20 --

17
reports of the statements of witnesses whom the prosecutor intends to call at the trial,
including any reports or statements of experts made in conjunction with the case,
including the results of physical or mental examinations, scientific tests, experiments, or
comparisons which the prosecutor intends to offer in evidence at the trial.‖
Section 1054.5, subdivision (b) provides in part: ―Upon a showing that a party has
not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party
complied with the informal discovery procedure provided in this subdivision, a court may
make any order necessary to enforce the provisions of this chapter, including, but not
limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the
testimony of a witness or the presentation of real evidence, continuance of the matter, or
any other lawful order. Further, the court may advise the jury of any failure or refusal to
disclose and of any untimely disclosure.‖ Pursuant to section 1054.7, disclosure of
materials must be made at least 30 days before trial unless good cause is shown why a
disclosure should be denied, restricted or deferred. Section 1054.7 also provides that if
material is discovered within 30 days of trial, disclosure must be made immediately.
―[N]ot every nondisclosure of favorable evidence denies due process. ‗[S]uch
suppression of evidence amounts to a constitutional violation only if it deprives the
defendant of a fair trial. Consistent with ―our overriding concern with the justice of the
finding of guilt,‖ [citation] a constitutional error occurs, and the conviction must be
reversed, only if the evidence is material in the sense that its suppression undermines
confidence in the outcome of the trial.‘ (United States v. Bagley (1985) 473 U.S. 667,
678.)‖ (In re Brown (1998) 17 Cal.4th 873, 884.) A trial court‘s ruling on matters
regarding discovery is reviewed for abuse of discretion. (People v. Ayala (2000) 23
Cal.4th 225, 299.)
Appellant contends that the prosecutor violated section 1054.1 subdivision (f),
which requires the prosecutor to disclose all ―[r]elevant written or recorded statements of
witnesses or reports of the statements of witnesses whom the prosecutor intends to call at
the trial, including any reports or statements of experts made in conjunction with the case,

-- 17 of 20 --

18
including the results of physical or mental examinations, scientific tests, experiments, or
comparisons which the prosecutor intends to offer in evidence at the trial.‖
Appellant contends that late discovery was provided to him with respect to
Fletcher, Thomas, Lopez and Katz. As to Fletcher, the record shows that on June 17,
2008, the second day of trial, defense counsel complained that he had just learned that
Fletcher was to testify as a witness and just received a transcript of a recorded interview
with Fletcher. The prosecutor explained to the trial court that Fletcher was named in the
discovery as an ―Informant,‖ his statements were contained in the police report as
―Informant #2,‖ and his name was listed on his six-pack photo identification statement
that was previously provided to defense counsel. The record also shows that Fletcher had
been identified by name on a diagram he had drawn in the police report that was provided
to defense counsel before trial. The prosecutor represented that Fletcher had initially
been afraid to come forward, but once he was willing to testify, the prosecutor added his
true name to the witness list and provided discovery to defense counsel.
Also, on the second day of trial, defense counsel argued that he had not received
all discovery related to Thomas, including notes related to two out of three interviews,
and a videotape of her interview on November 1, 2007. The prosecutor stated that the
detectives had not taken notes at the two interviews, she had provided defense counsel
with a transcription of the videotaped interview, and that she would obtain a copy of the
videotaped interview for defense counsel.
On June 19, 2008, the fourth day of trial, the prosecutor questioned Lopez during
lunch time why he did not want a tape of his interview with police played. Defense
counsel objected on the basis that he had not been informed that the prosecutor and
Detective Katz had interviewed Lopez during the lunch hour break and played a tape of
his interview with police officers to him. The prosecutor explained that Lopez had told
her and the detective that he did not want the tape played because he was afraid he had
described his residence and his room during the interview. The prosecutor also stated
that Lopez had denied making a 911 call during their discussion. The trial court ordered

-- 18 of 20 --

19
the prosecutor to prepare notes of the meeting, and she represented that the detective
would do so.
On June 23, 2008, the sixth day of trial, the prosecutor gave defense counsel notes
that Detective Katz took on November 1, 2007, during a recorded interview with
Thomas. She explained that she had just received the notes from Detective Katz. The
prosecutor stated that she had asked the investigator to provide a photographic six-pack
containing a photo of appellant and a photograph of Fegan that were shown to Thomas
during an interview on October 25, 2007. The trial court ordered Detective Katz to make
copies of his notes and turn them over to defense counsel during the lunch hour.
Detective Katz represented that he was still trying to find the photographic six-pack that
was shown to Thomas. Defense counsel also received a copy of the photographic six-
pack on June 23, 2008. Detective Katz testified that defense counsel had received
discovery prior to trial that Thomas had identified appellant and Fegan from a
photographic six-pack.
We are satisfied that the trial court did not commit reversible error in refusing to
instruct with CALCRIM No. 3063 regarding the untimely disclosure of evidence as
requested by defense counsel. The record shows the discovery regarding Fletcher was
made available to defense counsel and he was identified as a witness as soon as possible,
and that the photographic six-pack was provided to defense counsel before Thomas
testified. Also, the trial court questioned the prosecutor regarding missing notes and
ordered that she either immediately prepare notes or disclose notes of Detective Katz.
3 CALCRIM No. 306 provides ―[b]oth the People and the defense must disclose their
evidence to the other side before trial, within the time limits set by law. Failure to allow
this rule may deny the other side the chance to produce all relevant evidence, to counter
opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed
to disclose: <describe evidence that was not disclosed> [within the legal time period]. [¶]
In evaluating the weight and significance of that evidence, you may consider the effect, if any,
of that late disclosure. [¶] [However, the fact that the defendant‘s attorney failed to disclose
evidence [within the legal time period] is not evidence that the defendant committed a
crime.]‖

-- 19 of 20 --

20
While the trial court had the ability to advise the jury of any failure or refusal to disclose
and of any untimely disclosure pursuant to section 1054.5, it was not required to do so.
We conclude that even if the trial court had erred in failing to give the instruction,
it is not reasonably probable that a result more favorable to appellant would have been
reached had the instruction been given. (People v. Watson, supra, 46 Cal.2d at p. 836.)
The evidence in support of the jury‘s verdict was very strong. The evidence showed that
appellant, a Nutty Block Crips gang member, had the motive to kill McKeithan in
retaliation for the shooting of his cousin ―Little‖ or ―Tiny‖ ―No Good,‖ who had been a
more senior Nutty Block Crips gang member. Other witnesses placed appellant running
away from the scene of the crime. Appellant confessed to Thomas that he had murdered
McKeithan in retaliation for the murder of his cousin.
In light of our foregoing conclusions, we find that cumulative error did not deprive
appellant of a fair trial. (People v. Hines (1997) 15 Cal.4th 997, 1075.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, Acting P. J.
DOI TODD
We concur:
_______________________, J.
ASHMANN-GERST
_______________________, J.
CHAVEZ

-- 20 of 20 --