P. v. Gibson CA2/7 filed 6/22/26

Filed 6/22/26 P. v. Gibson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO ANDRE GIBSON,

Defendant and Appellant.

B339401

(Los Angeles County
Super. Ct. No. TA153535-02)
APPEAL from a judgment of the Superior Court of LosAngeles County, Kelvin D. Filer, Judge. Affirmed in part, reversed in part, and remanded with directions.
John Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, Heidi Salerno and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Mario Andre Gibson appeals from a judgment of conviction after a jury found him guilty of attempted murder. On appeal, Gibson contends the trial court abused its discretion by permitting improper opinion testimony from the prosecutor’s expert witness. Gibson further argues the court erred by imposing an upper-term sentence in the absence of a jury finding of aggravating factors. We affirm the conviction but vacate Gibson’s sentence and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The Amended Information
On November 16, 2021 Gibson and his brother, Najeon Samuel Gibson (Najeon), were charged with the first degree murderof Ayana Treadway (count 1) (Pen. Code, §187, subd. (a)),the attempted willful, deliberate, and premeditatedmurder of Nathaniel Caldwell (count 2) (§§ 187, subd.(a), 664), and conspiracy to commit murder (count 3) (§§182, subd.(a)(1), 187, subd. (a)).As to counts 1 and 2, the information alleged Najeon had personally used a handgun during the commission of the offenses. The information also alleged Gibson had suffered threeprior convictions within the meaning of the threestrikes law (§§ 667, subds. (b)-(j), 1170.12).
The Evidence at Trial
The shooting
On the night of December 10, 2020, members of the Family Swan Bloods, a criminal street gang, held a candlelight vigil for one of their members who had been shot the night before.Treadway and Caldwell attended the vigil. Surveillance video from the scene showedtwocars arrive at the gathering around 11:45p.m. Fiveindividuals got out of the cars and fired guns into the area of the vigil.Treadway was shot once in the back and died at the hospital. Caldwell was also shot but was able to drive himself to the hospital and was released later that night.

The investigation
Police officers arrived at the scene shortly after the shooting. They found approximately 60 spent shell casings and multiple bullet fragments on the street and sidewalk where the shooting occurred.The responding officers also found a keychain at the scene with akey fob for an Audi and a house key. The car key did not open any of the cars on the street near the shooting.
Investigators were not able to identify the shooters or their vehicles from the surveillance video of the shooting. However, they obtained surveillance footage and data from license plate readers from the area around the shooting and identified a red SUV and a black sedanthat they believed belonged to the shooters. The footage also showed the suspects’ vehicles leaving from and returning to a known hangout of the East Coast Crips criminal street gang.The East Coast Crips and Family Swan Bloods were rivals.
On December 11, 2020, the day after the shooting, gang task force officers encountered Gibson and Najeonwhile on patrol in East Coast Crips territory. Gibson and Najeon were known East Coast Crips members. At the time of the encounter, Najeon was standing on the sidewalk. Upon being questioned, hepushed an officer and tried to flee. Najeon and the officer scuffled briefly, and the officers detained Najeon. The officers asked Najeon if they could search his vehicle, an Audi, that was parked nearby. Najeon replied that he had lost his keys. Gibson was sitting inside a red SUV nearby. He got out of the vehicle and was briefly detained. The location of the encounter was one of the locations officers had identified in the surveillance videos as a “load-up spot” on the night of the shooting. Officers subsequently learned Gibson had rented the red SUV from November 28 to December13. The investigating officer testified the red SUV had several similar features to the SUV seen in the surveillance footage of the shooting. That night the officers arrested Najeon on charges unrelated to the December10 shooting.
Najeon was arrested again on January 21, 2021, after attempting to flee during a traffic stop. Najeon led police on a high-speed car chase. He ultimately crashed his car and tried to flee on foot. After Najeon’s arrest, the investigating officer attempted to use the key fob found at the scene of the shooting on Najeon’s car, and it opened the vehicle. The officer was also able to open the door to Najeon’s home with the house key found at the scene of the shooting.
The investigating officers reviewed Gibson’s cell phone records and data from cell phone towers and concluded he was in the immediate area of the shooting and was traveling in one of the vehicles involved in the shooting.
The jail calls
The prosecutor played excerpts from several telephone calls between Najeon and Gibson that were recorded while Najeon was in custody (following his December11 arrest). In a December15, 2020 call, Gibson told Najeon, “I’m going to take cuz today to get another Jason though.” Gibson added, “I’m gonna take him to get another Jason” and “[h]ad to let the other Jason go.”
During another undatedcall, Gibson told Najeon, “You gotta call me back because I don’t know where them other two at either.” Najeon asked, “What?” Gibson responded, “Them other twoJasons.” Gibson said, “yeah, we gonna chat, uh, uh, box, white box in the uh, shop. . . . One of ‘em.”
During a third call, Gibson asked Najeon, “What you had, a got Jason with you or something?” Najeon responded, “Who? Nah, why you say that?” Gibson answered, “Shit, I was wondering why you ran.”
Los Angeles Police Detective Nancy Johnson was one of the investigators of the December 10 shooting. She had been a homicide investigator for fouryears, during which time she had listened to hundreds of recorded jail calls. Johnson testified that, in her experience, individuals making telephone calls while in custody “sometimes talk in code or use code names for weapons, for drugs.” She explained, “I’ve heard code names as ‘transformers’ used before for a gun. I’ve heard ‘the thang’ used for a gun before. And it really kind of depends upon the context of the conversation as you’re listening to the context of it, you know, how it applies to the investigation that you’re working on. And usually multiple calls—you may not on the first call understand, but multiple calls that you would listen to, then you begin to pick up on those code words.” During her investigation, Johnson listened to the calls between Gibson and Najeon in their entirety. She concluded based on her experience that “when they refer to the word ‘Jason’ they’re referring to a gun.”
The Verdict and Sentencing
The jury found Gibson guilty of attempted murder on count 2but found not true that the attempted murder was committed willfully, deliberately, and with premeditation.The jury could not reach a verdict on count1 (first degree murder) and count 3 (conspiracy to commit murder), and the trial court declared a mistrial on those twocounts.In June 2023 counts 1 and 3 were retried, but the trial again resulted in a mistrial on both counts. The prosecution announced it was unable to proceed, and counts1 and 3 were dismissed pursuant to section1385.
Prior to sentencing, Gibson admitted he had suffered threeprior serious or violent felony convictions within the meaning of the three strikes law.On June7, 2024 the trial court granted in part Gibson’s motion pursuant to People v. Superior Court (Romero)(1996) 13 Cal.4th 497 and dismissed twoof the prior strike convictions. The court sentenced Gibsonon count 2 for attempted murder as a second-strike offender, imposing an 18-year sentence (the upper term of nineyears, doubled under the three strikes law).
In sentencing Gibson to the upper-term sentence, the court relied on the following aggravating factors: The crime involved great violence, great bodily harm, and the threat of great bodily harm; the manner in which the crime was carried out showed planning, sophistication, and professionalism; the defendant engaged in violent conduct that indicates he is a serious danger to society; his prior conviction and sustained petitions are of increasing seriousness; he served a prior term in prison or county jail; and he was on probation at the time of the current offense.The court stated, “I will point out that apparently [Gibson’s] prior performance on probation and mandatory supervision had been satisfactory prior to this offense, but the circumstances in aggravation clearly outweigh any circumstances in mitigation.”
Gibson timely appealed.

DISCUSSION
The Trial Court Did Not Abuse Its Discretion in Admitting Detective Johnson’s Testimony Regarding the Jail Calls
Expert opinion testimony is generally admissible if the subject matter of the testimony is “sufficiently beyond common experience” and would “assist the trier of fact.” (Evid. Code, §801, subd.(a).)To qualify as an expert, the witness must have “special knowledge, skill, experience, training, or education sufficient to qualify” the witness as an expert on the subject to which his or her testimony relates. (Id., §720, subd.(a).)
An expert may testify about “generalized information to help jurors understand the significance of . . . case-specific facts. An expert is also allowed to give an opinion about what those facts may mean.” (People v. Sanchez (2016) 63Cal.4th 665, 676.) Accordingly, expert testimony regarding gang culture and the use and meaning of monikers and symbols in gangs is generally permissible. (Id. at p. 677 [explaining expert may testify that specific symbol was adopted by a gang and the presence of a tattoo of the symbol showed the person belonged to the gang].)“But ‘the expert’s opinion may not be based “on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors.”’” (People v. Flores (2020) 9Cal.5th 371, 398.)
“The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54Cal.4th 395, 426; accord, People v. Duong (2020) 10Cal.5th 36, 60)
Gibson argues Detective Johnson’s opinion testimony that use of the term “Jason” in the recorded jail callswas code for “gun” was based on improper speculation because she had not previously heard a gun referred to as a “Jason” and merely “assumed [the meaning] based upon the context.” However, Detective Johnson explained she had been investigating homicides for fouryears, had listened to hundredsof jail calls, and had listened to all the calls between Gibson and Najeon in their entirety. Based on that experience and the entire context of the conversations between Gibson and Najeon, the trial court could have reasonably concluded that DetectiveJohnson was sufficiently familiar with gang and inmate behavior and terminology, as well as the facts of this case, to accurately interpret the term “Jason” as code for a firearm. (See People v. Champion (1995) 9 Cal.4th 879, 924-925 &fn.15 [affirming admission of deputy sheriff’s testimonyinterpreting words used by gang members in recorded conversation, including that “gauge” is a shotgun, explaining “[t]he use of an expert for this purpose is not uncommon”];People v. Roberts (2010) 184Cal.App.4th 1149, 1165-1166, 1193-1194 [affirming admission of detective’s testimony interpreting meaning of slang language used by gang members during intercepted phone calls,including“thang,” “hizzy,” and “zizang” to refer to a gun].)
The fact that Johnson had not previously heard the term “Jason” used is of no moment. “[A]n expert need not have personal experience with the precise fact pattern to offer an informed opinion.” (People v. Flores, supra, 9Cal.5th at p.400 [expert’s testimony regarding gang-related motive for killing was proper even though the expert “admitted he had never before heard of someone being killed for failing to join a gang”].)Further, the jury was instructed that it was not bound by the expert’s opinionbut rather should give it the weight it deserved and decide independently the meaning and importance of the opinion. (See People v. Vang (2011) 52Cal.4th 1038, 1051[noting that “the defendant has the opportunity during argument to stress to the jury that an expert’s testimony is oneopinion concerning the motivations of actors in a hypothetical scenario; the expert has no personal knowledge concerning the particular defendant’s state of mind”].)
On this record, it was not an abuse of discretion for the trial court to permit Detective Johnson to testify regarding the meaning of the term “Jason” in the jail calls.

The Trial Court’s Error in Imposing the Upper Term Was Not Harmless
Section 1170, subdivision (b)(2), prohibits “imposition of an upper-term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, ‘have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.’” (People v. Lynch (2024) 16Cal.5th 730, 742; accord, People v. Wiley (2025) 17Cal.5th 1069, 1078.)Where the trial court relies on unproven aggravating factors, we assess prejudice under Chapman v. California (1967) 386 U.S. 18, which requires us to find prejudice unless we “can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence.”(Lynch, at p.768.)TheChapman standard applies whenever the court has relied on unproven factors, “even if some other aggravating facts relied on have been properly established.” (Id. at pp. 768-769.)
Gibson argues, the People concede,and we agree the trial court erred by imposing the upper-term sentence based on fiveaggravating factors that were not found true by a jury or stipulated to by Gibson.However, the Attorney General argues the error was harmless because “[g]iven the nature of the crime and appellant’s criminal history, a jury would have found true all the aggravating facts beyond a reasonable doubt.” For example, the Attorney General argues a jury would necessarily have found the circumstances of the instant offense included planning, sophistication, and professionalism in light of the “gathering [of] two cars of people and going to a rival gang candle[light] vigil.” However, the jury found not true the allegation that the attempted murder was willful, deliberate, and premeditated. We do not know what facts the jury relied on in finding a lack of premeditation and whether those facts would havecaused a jury to find not true the allegation that the crime involved planning and professionalism. The remaining aggravating factors relied on by the court, other than the prior prison term, likewise require factual determinations. (See, e.g., People v. Wiley, supra, 17 Cal.5th at p. 1090 [determination that crimes are of increasing seriousness is “comparative and qualitative”].)Accordingly, we cannot conclude beyond a reasonable doubt that the jury would have found each aggravating factor true.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and remanded for resentencing consistent with this opinion.

FEUER, J.

We concur:

MARTINEZ, P. J.

SEGAL, J.