P. v. Kidd

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Filed 1/26/12 P. v. Kidd CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
JORDAN ISIAH KIDD,
Defendant and Appellant.
C062075
(Super. Ct. No.
07F01299)
THE PEOPLE,
Plaintiff and Respondent,
v.
ZACHARY TYLER et al.,
Defendants and Appellants.
C062512
(Super. Ct. No.
07F01299)
Following a home invasion that escalated into a kidnapping,
sexual assault and attempted murder, defendants Zachary Tyler,
David Griffin, Jordan Kidd, Lashea Merritt and Kimberly Knorr,

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all of whom were either members or associates of a criminal
street gang named the 29th Street Crips, were variously
convicted of the following crimes: robbery in concert,
burglary, kidnapping, oral copulation in concert, participation
in a criminal street gang, conspiracy to commit murder,
attempted murder, unlawful possession of a firearm, and unlawful
possession of ammunition. Many of the offenses were also found
to have been committed for the benefit of a criminal street
gang.
All five defendants appeal various aspects of their
convictions and/or sentences, and we have consolidated those
appeals for argument and decision. We conclude there is
insufficient evidence to support Knorr‟s robbery conviction, and
the gang enhancement imposed on the burglary count for all
defendants must be reduced from 10 years to five because it was
not alleged the burglary was a violent felony within the meaning
of Penal code section 667.5, subdivision (c). (Further
undesignated section references are to the Penal Code.) We also
conclude a fine imposed pursuant to section 667.6 must be
stricken and various corrections must be made to the abstracts
of judgment. We further conclude the sentence imposed on
Merritt, who was only 15 years old at the time of the offenses
and who will not be eligible for parole until she is over 100
years old, constitutes cruel and unusual punishment. Finally,
we conclude the determinate portion of the sentence imposed on
Kidd violates section 1170.1 and shall remand for resentencing.
In all other respects, we affirm the judgments.

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FACTS AND PROCEEDINGS
At all times relevant to this matter, defendants Zachary
Tyler, David Griffin and Lashea Merritt were members of a
criminal street gang called the 29th Street Crips, which is
based in South Sacramento. Tyler‟s gang name was “Smash,”
Merritt was called “Lady Smash,” and Griffin went by the name of
“Baby Attitude.” Defendant Jordan Kidd was a member of the
Valley High Crips, which is an “ally” of the 29th Street Crips.
His gang name was “Five.” Defendant Kimberly Knorr was an
“associate” of the 29th Street Crips who was in a dating
relationship with Kidd. Her gang name was “Lady Five.”
In January 2007, Destiny Doe and Knorr were living at the
residence of Nate E. in Sacramento. Doe worked as an assistant
preschool teacher while also moonlighting as a prostitute for
Nate‟s “escort” service. Knorr also worked for Nate. While
they lived together, Knorr often bragged to Doe about things she
and her “Crip homies” did together.
On the evening of January 22, 2007, Doe and Knorr were
returning home in Doe‟s car when Doe received a call from Nate
telling her Knorr had been kicked out of the residence and not
to bring her to Nate‟s house. Doe dropped Knorr off at a gas
station on the corner of Fruitridge and Franklin Boulevard.
Knorr‟s sister, B.K., was dating Tyler at around this time
and, on the evening of January 22, was with him at the home of
A.S., who was Merritt‟s mother and was known by the gang name of

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“Mama Solo.” Also present were A.S., Griffin, Kidd, Merritt,
and Merritt‟s brother, L.M., who is known as “Baby Solo.”
After Knorr was dropped off, she called B.K. and told her
she had argued with Nate and was moving out of his residence.
Knorr said she had been dropped off by Doe and needed a ride to
pick up her things. Tyler drove to Knorr‟s location and brought
her back to the A.S. residence.
When Knorr arrived, she was upset and said Nate had
insulted the gang. In particular, Knorr told them Nate had
said, “fuck them--fuck Smash and them. They‟re not no 29th
Street Garden Block Crips.” Garden Block Crips is another name
for the 29th Street Crips.
The others in the room jumped up and “started talking shit
to one another about--about it.” Tyler said, “fuck that nigga,
let‟s go smoke him.” In gang culture, to “smoke” means to kill.
Tyler also said they should rob Nate. Tyler, Kidd, Griffin,
Knorr, Merritt and L.M. departed in two cars, a white and a blue
Buick.
Meanwhile, Doe had returned to Nate‟s residence and was
resting in her room. Nate was also present. Later, Doe heard a
disturbance in front of the residence caused by a prior
girlfriend of Nate named Mia. When Doe first moved into the
house, Knorr and Mia were also living there, but Mia had since
moved out. On this evening, Mia was banging on the window and
trying to get Nate to come outside and talk with her. Doe got
up and moved to what had been Knorr‟s bedroom, which was toward
the back of the residence. She fell asleep on Knorr‟s bed.

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Some time later, Doe awoke and saw a silhouette outside the
bedroom window. She then saw four or five people wearing
bandanas enter the bedroom through the window. They pointed
guns at her and told her not to say anything. Doe was held at
gunpoint while others searched the residence for Nate, who had
fled upon seeing what was happening. Doe was told to get
dressed and was taken into the living room. Meanwhile, the
intruders took off their bandanas and rummaged through the house
looking for things to steal. Doe heard the names Smash and Five
mentioned and saw the intruders put clothes and a stereo inside
a sheet which they later took with them.
When the intruders departed, they took Doe as well. She
got into the blue Buick with three of them, and they followed
the white Buick away from the scene. Doe later identified the
three in the car with her as the one called Five along with
Griffin and Merritt.
They all stopped at an apartment complex on 29th Street
that had been the birthplace of the gang. Tyler took Doe aside
and said to her that “you‟re with us now and I‟ll take care of
you, and why don‟t you work for me?” They later got back in the
cars and drove away, telling Doe they are the “mob” and this is
the “mob life” and “you‟re with the mob now.”
They eventually arrived at the home of A.S., where Doe was
taken inside. She saw Knorr, B.K., A.S., another woman and a
young boy, as well as the others from the home invasion. Doe
was taken to a bedroom, where Tyler, Kidd and Griffin talked
about “running a train” on her and forcing her to perform oral

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sex. Tyler yelled at Doe, “you‟re gonna suck up all my homies,”
and Kidd and Merritt ordered her to orally copulate “Little
Homie.” Merritt further said, “give my little homie some head,
you‟re a ho anyway.” Tyler told Doe she was going to go out and
start making money for him.
Doe was eventually told she had to orally copulate L.M. and
was left alone in the room with him. She did as directed and,
after eight minutes or so, L.M. departed. Tyler then came in
the room and forced Doe to orally copulate him as well.
Later that evening, Doe was again placed in the white Buick
and departed with Tyler, Kidd, Griffin, and Knorr. It is
unclear whether Merritt accompanied them on this trip. Kidd and
Griffin were both armed with handguns. Before leaving, B.K.
overheard Kidd and Tyler say, “If somethin‟ is gonna be done,
the bitch has gotta be iced.” She also heard Tyler say
something to A.S. like, “we brought the bitch here so she
couldn‟t tell.”
After stopping at another residence for 15 or 20 minutes,
they drove to an area near railroad tracks and an empty field.
Doe was told to get out of the car and to start walking through
the field. She did as directed. After a while, Doe started
hearing gunshots. She began walking faster and then running and
continued to hear gunshots. She also saw bullets hit the ground
around her. One of the shots hit Doe in the back just below the
shoulder blade.
Doe ran toward the light of a house and eventually reached
the house, where she yelled for help. A man came outside, saw

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Doe and carried her onto the porch. He called 9-1-1 for help.
Doe told the man the 29th Street Crips had shot her.
According to the prosecution‟s gang expert, all of the
foregoing actions of the defendants were for the benefit of the
29th Street Crips.
On February 3, 2007, police officers contacted Tyler and
Merritt in a hotel room. They found a handgun and ammunition in
the room. On February 13, police officers found Griffin in a
residence along with a gun and ammunition. On February 28,
police officers discovered Kidd in a residence with a handgun
and ammunition.
All five defendants were charged with robbery in concert,
burglary, aggravated kidnapping, conspiracy to commit murder,
and attempted murder. On each offense, they were further
charged with enhancements for firearm use and committing the
offenses for the benefit of a criminal street gang. They were
also charged with a separate offense for active participation in
a criminal street gang.
Tyler and Merritt were additionally charged with two counts
of oral copulation in concert along with street gang
enhancements. Tyler and Kidd were charged with unlawful
possession of a firearm and ammunition. Kidd was also charged
with battery of the mother of his child stemming from a separate
incident. However, that charge was later dismissed.
The case was tried to two juries, one for Kidd alone and
the other for the remaining defendants. After his arrest, Kidd
had been interviewed by police, and the videotape of that

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interview was played to his jury alone. In that interview, Kidd
first denied any involvement in the matter. However, he
eventually admitted he went to Nate‟s house, but only to steal
something and not to kidnap or shoot anyone. He denied
kidnapping or shooting anyone. He also denied having a gun and
claimed that he departed with Knorr before the others came out
of the house and did not know Doe had been taken with them. He
denied accompanying the others to the home of A.S.
Tyler was the only defendant to testify at trial. He
acknowledged that he went with Knorr to Nate‟s residence that
night, but claimed he went there only to allow Knorr to pick up
her things. Tyler claimed he waited in the car while Knorr went
inside and that Doe came out with Knorr and departed with them
voluntarily. Tyler asserted that, when they left, Doe asked to
be taken to a school where she met up with some of her
“homeboys.” Doe got out and spoke with four men. Tyler
overheard her say “fuck Nate” and told the guys they could go to
his house and take whatever they wanted because she left the
front door unlocked. Tyler then drove them to the residence of
A.S. and hung out there for a while. Later, Tyler took Doe to
meet up with a “date” she had that evening. According to Tyler,
that was the last time he saw Doe.
Tyler, Griffin and Kidd were convicted on all charges, and
all enhancements were found true.
Knorr was found not guilty of aggravated kidnapping but
guilty of the lesser offense of simple kidnapping. She was also
acquitted of attempted murder. The jury was unable to reach a

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verdict on the charge of conspiracy to commit murder, and the
court declared a mistrial on that charge. Knorr was convicted
on all other charges and all other enhancements were found true.
The People later dismissed the conspiracy charge.
Merritt too was acquitted of attempted murder. The jury
was not able to reach a verdict on one count of oral copulation,
for which a mistrial was declared. Merritt was convicted on all
other charges and all other enhancements were found true. The
People later dismissed the oral copulation charge on which the
jury could not reach a verdict.
Tyler was sentenced on the burglary charge to the upper
term of six years plus 10 years and one year respectively for
the gang and firearm use enhancements. On the two oral
copulation counts, he received full consecutive terms of seven
years, plus 10-year gang enhancements. Sentence on the
substantive gang offense was stayed. Tyler received a one-third
middle term of eight months on the firearm possession count and
the same sentence on the ammunition count, with the latter
stayed. He also received sentences of two years eight months,
and one year on two unrelated charges. Finally, Tyler received
an indeterminate term of 25 years to life plus an enhancement of
25 years to life for conspiracy to commit murder, a consecutive
term of 15 years to life for aggravated kidnapping, and
indeterminate terms for robbery in concert and attempted murder,
with the latter two stayed. In all, Tyler was sentenced to 55
years four months, plus 65 years to life.

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Griffin was sentenced on the burglary count to the upper
term of six years, plus 10 years for the gang enhancement and
one year for the firearm enhancement. On an unrelated attempted
murder charge on which he had been convicted earlier, Griffin
received a consecutive, one-third middle term of two years four
months, plus four months for firearm use. On the separate gang
charge, Griffin received a one-third middle term of eight
months, stayed pursuant to section 654. For conspiracy to
commit murder, Griffin received an indeterminate term of 25
years to life, plus a separate term of 25 years to life for the
firearm enhancement. On the aggravated kidnapping charge,
Griffin received a consecutive, indeterminate term of 15 years
to life. Finally, on the charges of attempted murder and
robbery in concert, Griffin received further indeterminate terms
that were stayed pursuant to section 654. The total sentence
imposed on Griffin was 19 years 8 months, plus 65 years to life.
Kidd was sentenced on the conspiracy to commit murder
charge to an indeterminate term of 25 years to life, plus a
consecutive enhancement of 25 years to life for the firearm use.
On the aggravated kidnapping charge, he received a consecutive,
indeterminate term of 15 years to life, with a 10-year
enhancement for firearm use. On the robbery in concert charge,
the court imposed but stayed an indeterminate term of 15 years
to life. On the attempted murder, the court imposed an
indeterminate term of 15 years to life plus an enhancement of 25
years to life for firearm use, but stayed these terms as well.
On the burglary charge, the court imposed a one-third middle

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term of one year four months, with gang and firearm enhancements
of two years. On the firearm possession charge, Kidd received a
consecutive, one-third middle term of eight months. On the gang
charge and possession of ammunition charge, he received stayed,
one-third middle terms of eight months. The total sentence
imposed on Kidd was four years plus 75 years to life.
Knorr was sentenced on the burglary count to the middle
term of four years, plus 10 years and one year respectively for
the gang and firearm use enhancements. For simple kidnapping,
she received a consecutive one-third middle term of one year
eight months, plus three years four months for the firearm use
enhancement. Sentence on the separate gang charge was stayed.
On the robbery in concert count, Knorr received an indeterminate
term of 15 years to life, for a total sentence of 20 years plus
15 years to life.
Merritt was sentenced on the burglary count to the middle
term of four years, plus 10 years and one year respectively for
the gang and firearm use enhancements. On the one charge of
oral copulation in concert, she received a full consecutive term
of five years plus a 10-year gang enhancement. Sentence was
stayed on the separate gang charge. On the robbery in concert
charge, Merritt received a consecutive, indeterminate term of 15
years to life. She also received an indeterminate term of 25
years to life for conspiracy to commit murder, plus an
enhancement of 25 years to life for the firearm use. Finally,
sentence on the kidnapping charge was stayed. The total
sentence imposed on Merritt was 30 years plus 65 years to life.

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All five defendants appeal.
DISCUSSION
Each defendant has filed a brief raising various arguments,
only a few of which overlap. Nevertheless, each defendant has
joined in all arguments raised by the others. We shall address
the arguments of each defendant in turn. While we identify each
argument as that of the party raising it, we acknowledge the
joinder of the others.
I
Kimberly Knorr
Knorr raises the following contentions on appeal: (1)
there is insufficient evidence she participated in the robbery;
(2) she received inadequate notice of the nature of the robbery
charge; (3) because Knorr was a resident of Nate‟s house, she
cannot be convicted of burglarizing her own home; (4) there is
insufficient evidence of kidnapping; (5) there is insufficient
evidence supporting the gang conviction and enhancements; (6)
the sentence on the burglary count must be stayed; (7) the trial
court erred in excluding testimony from B.K. regarding Knorr‟s
state of mind; and (8) Knorr was denied due process when she was
handcuffed in front of the jury. We find merit in the first
contention only.
A
Sufficiency of the Evidence--Robbery
Knorr contends there is insufficient evidence under either
an aider and abettor or conspiracy theory to support her

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conviction for robbery. According to Knorr, there is no
evidence she intended that the others rob either Doe or Nate.
On the contrary, she argues, “[w]hen someone suggested that they
rob Nate, [Knorr] said no, she just wanted to get her stuff.”
Knorr argues her presence at the scene, without more, is
insufficient to convict her as an aider and abettor. As for
conspiracy, Knorr argues there is no evidence that she agreed
with the others to commit a robbery.
In reviewing the sufficiency of the evidence supporting a
conviction, we view the evidence in the light most favorable to
the prosecution and determine if a rational trier of fact could
have found the elements of the offense beyond a reasonable
doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) In making
this determination, we consider the record as a whole, not
isolated bits of evidence. (People v. Johnson (1980) 26 Cal.3d
557, 577-578.) Reversal on the basis of insufficient evidence
is not warranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support
[the conviction].” (People v. Redmond (1969) 71 Cal.2d 745,
755.)
The People disagree there is insufficient evidence to
support the robbery conviction. According to the People, Knorr
was angry at Nate and told the others Nate had disrespected the
gang. She also told them Nate had a Mercedes SUV in his garage.
When the defendants left for Nate‟s residence, some were armed,
and it is reasonable to infer Knorr knew it. Knorr led the
others to the residence in order “to get Nate and her

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belongings.” According to the People: “It is reasonable to
infer that Knorr agreed with going to Nate‟s house, doing a home
invasion, and robbing Nate. She did not just want her clothes
back. She was upset at being kicked out and at having her gang,
which included her boyfriend Kidd (‘Five’), disrespected. Like
everyone, she went back to Nate‟s seeking revenge. She knew her
group would take whatever valuables they could find, and she
knew that [Doe] and Nate would likely be in the house.”
According to the People, “[f]rom this evidence and reasonable
inferences, the jury could reasonably conclude that Knorr
intended to facilitate the home invasion and robbery of [Doe].”
We have difficulty following the People‟s leap of logic.
Knorr and the others were charged with the robbery of Doe, not
Nate. The People argue that, because there is evidence
suggesting Knorr intended that the others rob Nate, she also
intended that they rob Doe. But there is no evidence Knorr was
angry at Doe or sought revenge against her. She did not inform
the others that Doe had disrespected the gang. She did not
mention that Doe had a Mercedes at the residence.
The People argue that, “[s]ince the invaders asked [Doe]
about specific items, they most likely got that information from
Knorr who had lived there.” However, the only items the
intruders asked Doe about were the location of a safe, the money
and the keys to Nate‟s truck. There is no reason to believe any
of these items were the property of Doe. The People further
argue defendants brought two cars “to carry everyone and the

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loot.” Again, however, there is nothing to suggest the
anticipated loot was that of Doe.
Knorr did not enter the residence and therefore was not
involved in the actions of the others in taking items belonging
to Doe. There is no evidence in this record from which it may
be inferred Knorr conspired with the others in advance to rob
Doe.
As for Knorr‟s liability under an aider and abettor theory,
such liability requires proof the defendant acted “with
knowledge of the criminal purpose of the perpetrator and with an
intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.” (People v. Beeman
(1984) 35 Cal.3d 547, 560.) In this instance, there is no
evidence Knorr intended that the others rob Doe, as opposed to
Nate, and the jury was not instructed on a theory of natural and
probable consequences, i.e., that Knorr could be convicted of
robbing Doe if this was a natural and probable consequence of
the home invasion.
On the record before us, we agree there is no substantial
evidence to support Knorr‟s conviction for the robbery of Doe.
And since Knorr was not charged with robbing Nate, her robbery
conviction must be reversed.
B
Due Process--Robbery Charge
Knorr contends she did not receive adequate notice of the
robbery charge because, while the charge itself alleged robbery

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of Doe, the prosecution argued robbery of Nate, and the verdict
form did not identify the victim. Hence, she argues, the jury
may well have convicted her on the robbery count on a finding
that she aided and abetted or conspired in the robbery of Nate,
not Doe, in violation of her due process rights. However,
having concluded Knorr‟s conviction for robbery must be
reversed, this contention is moot.
C
Sufficiency of the Evidence--Burglary
Knorr contends her burglary conviction must be reversed for
two reasons. First, she argues she retained a possessory
interest in Nate‟s residence and, therefore, cannot be guilty of
burglarizing her own residence. She further argues the evidence
is undisputed that her intention in going to Nate‟s residence
was to retrieve her own property, not to commit any crime. We
reject both arguments.
In People v. Gauze (1975) 15 Cal.3d 709, our Supreme Court
held that one cannot be guilty of burglarizing his or her own
home. According to the court, burglary is “an entry which
invades a possessory right in a building” and “must be committed
by a person who has no right to be in the building.” (Id. at
p. 714.) In People v. Salemme (1992) 2 Cal.App.4th 775, this
court expanded on Gauze in concluding that “a person who enters
a structure enumerated in section 459 with the intent to commit
a felony is guilty of burglary except when he or she (1) has an
unconditional possessory right to enter as the occupant of that

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structure or (2) is invited in by the occupant who knows of and
endorses the felonious intent.” (Id. at p. 781, second italics
added.) Thus, in People v. Smith (2006) 142 Cal.App.4th 923,
the defendant husband‟s burglary conviction was upheld where he
broke into the family residence with felonious intent sometime
after his wife had obtained a restraining order removing him
from the home. (Id. at pp. 927, 931.)
In this instance, the evidence before the jury was that,
prior to the entry by Tyler and the others, Nate had kicked
Knorr out of his residence. There was no evidence that Knorr
had any ownership or leasehold interest in the residence. Thus,
even though some of her belongings remained inside, Knorr did
not have an unconditional possessory right to the premises.
Knorr argues there is insufficient evidence she shared the
others‟ criminal intent when they entered the residence.
According to Knorr, “[i]t has been the law for more than a
century that the mere fact one person is with another who enters
a dwelling house and steals therefrom, and sees the other steal
without interference on his part to prevent it, does not render
him guilty of the crime . . . .” Knorr cites as support People
v. Ah Ping (1865) 27 Cal. 489 (Ah Ping), where Ah You and Ah
Ping were seen entering another‟s cabin and putting items of
food into two sacks, after which Ah You alone carried them off.
At the trial of Ah Ping, Au You testified that he alone
committed the crime and that Ah Ping was an innocent stranger
whom he had met earlier. (Id. at pp. 489-490.) Ah Ping was
convicted, but the Supreme Court reversed the conviction. (Id.

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at pp. 490-491.) The court explained: “The appellant may have
been in the house with one who was, himself, there, with
felonious intent; he may have seen the latter in the act of
committing a felony and have made no attempt to interfere, and
still be entirely innocent. These facts, if found, would not
necessarily have established the defendant‟s guilt . . . .”
(Id. at p. 491.)
Knorr argues, she “was not even in the house with the
perpetrators of the crimes therein, and thus even more removed
than Ah Ping. She was sitting in her sister‟s white Buick some
distance away from the house. She had rejected [Tyler‟s] idea
to go there to smoke and rob Nate, which was the only evidence
offered to prove that [Knorr] acted as an aider and abettor, and
with criminal intent. Without more, it is sheer speculation to
believe that [Knorr] intended to commit burglary, or any other
crime. The evidence showed only that she wanted to go there in
order to get her belongings--as Nate had said she should.
[Citation.] Analogizing to Ah Ping, she was in the position of
Mr. Ping watching while Ah You carried off the goods.”
Knorr‟s reliance on Ah Ping is misplaced. The issue there
was not, as here, whether there was sufficient evidence to
convict Ah Ping of burglary. Clearly there was. In Ah Ping,
the jury had been instructed that if the evidence showed the
defendant “was with the one who did steal as charged” and “saw
him steal without interference on [the] defendant‟s part to
prevent it,” then the defendant had the burden of proving his
innocence. (Ah Ping, supra, 27 Cal. at p. 490.) The high court

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reversed the conviction because of this clearly erroneous
instruction that placed the burden on the defendant to prove his
innocence.
In the present matter, the issue is the sufficiency of the
evidence. While Knorr may not have shared the intent of the
others to rob Doe, there is sufficient evidence to support a
jury finding that she shared their intent to commit either
robbery or murder, or both, against Nate. Knorr‟s claim that
her only intent in going to Nate‟s residence was to retrieve her
property is belied by the fact that, when the intruders arrived
at the residence, Knorr did not accompany them inside to point
out her belongings, and by the fact that the others did not
simply knock at the front door to gain entry but chose instead
to sneak in through a window. Knorr relies on her sister‟s
testimony that Knorr told the others before they departed for
Nate‟s residence that she did not want to rob anyone but just
wanted to get her own things. However, the jury was free to
reject this testimony on the basis of bias.
We conclude substantial evidence supports Knorr‟s burglary
conviction.
D
Sufficiency of the Evidence--Kidnapping
Knorr contends there is insufficient evidence to support
her conviction for kidnapping. Knorr argues there is no
evidence she knew Doe would be in her bedroom that night or that
the others would kidnap her.

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But even assuming Knorr had no reason to believe Doe would
be in the residence or that the others would kidnap her, it may
nevertheless be inferred she saw the others bring Doe out of the
residence with them when they departed. Her continued
participation with them, first by leading them to the apartment
complex on 29th Street and then to the home of A.S., and then
accompanying the others to the field where they attempted to
kill Doe, makes Knorr liable as an aider and abettor of the
kidnapping.
Knorr‟s intent to aid and abet the kidnapping need not
precede the initial movement against the victim‟s will. “[T]he
crime of kidnapping continues until such time as the kidnapper
releases or otherwise disposes of the victim and has reached a
place of temporary safety . . . .” (People v. Barnett (1998) 17
Cal.4th 1044, 1159.) In order to be guilty as an aider and
abettor of the kidnapping, Knorr need not assist the entire
kidnapping. Assistance given during any portion of the offense
will suffice. So while Knorr may not have intended that Doe be
taken from the residence, she fully participated in the
kidnapping thereafter. Her kidnapping conviction is therefore
supported by substantial evidence.
E
Sufficiency of the Evidence--Gang Participation
Knorr challenges her conviction under section 186.22,
subdivision (a), which makes it a crime to knowingly and
actively participate in a criminal street gang.

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Section 186.22 defines “criminal street gang” as “any
ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its
primary activities the commission of one or more of the criminal
acts enumerated in paragraphs (1) to (25), inclusive, or (31) to
(33), inclusive, of subdivision (e), having a common name or
common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (§ 186.22, subd. (f).) The
term “pattern of criminal gang activity” is defined as “the
commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction
of two or more of the following offenses, provided at least one
of these offenses occurred after the effective date of this
chapter and the last of those offenses occurred within three
years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons: [33 offenses are
identified].” (§ 186.22, subd. (e).)
Knorr contends her conviction for participating in a
criminal street gang must be reversed both because there is
insufficient evidence she aided and abetted the others in any of
their crimes and because there is insufficient evidence the
criminal conduct was gang-related. However, we have already
rejected Knorr‟s contention regarding the sufficiency of the
evidence that she aided and abetted the others, at least as to
the burglary and kidnapping. Contrary to Knorr‟s arguments, the
jury could reasonably have concluded she intended that the

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others commit a burglary and actively participated in the
kidnapping after it began.
As for Knorr‟s contention that there is insufficient
evidence the offenses were gang-related, she spends considerable
time explaining why the law requires that the offenses be gang-
related but fails to explain why the specific crimes in this
matter are not. She argues simply that there is insufficient
evidence of a nexus between her status as an “associate” of the
29th Street Crips and the charged offenses. Where a point is
raised in an appellate brief without argument or legal support,
“it is deemed to be without foundation and requires no
discussion by the reviewing court.” (Atchley v. City of Fresno
(1984) 151 Cal.App.3d 635, 647.)
At any rate, as discussed later in connection with
arguments raised by the other defendants, there was sufficient
evidence that all the crimes were gang-related.
F
Stay of the Sentence for Burglary
Knorr contends section 654 precludes her punishment for
both burglary and robbery and, therefore, the sentence on the
burglary count must therefore be stayed. However, we have
concluded Knorr‟s conviction on the robbery must be reversed for
lack of substantial evidence. Therefore, her section 654 claim
is moot.

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G
State of Mind Evidence
During cross-examination of Knorr‟s sister, B.K., Knorr‟s
counsel asked whether B.K. recalled going to Knorr while they
were at the home of A.S. and telling Knorr that Doe wanted to go
home. B.K. answered yes. Counsel then asked: “And you recall
[Knorr] saying that she was --.” At that point, the prosecutor
interposed a hearsay objection and Knorr‟s counsel argued the
question fell within the state of mind exception to the hearsay
rule. Knorr‟s counsel asserted B.K. would answer that Knorr
“told her that she [Knorr] was afraid to do anything because
they were going to beat her ass.” The trial court ruled B.K.‟s
anticipated answer was relevant to the case and may well fall
within the state of mind exception to the hearsay rule.
However, the court excluded it as otherwise untrustworthy.
Knorr contends the trial court abused its discretion in
excluding the proffered evidence. She argues her state of mind
was central to the charges against her and this evidence
demonstrated she was acting out of fear of the others. She
further argues there was nothing untrustworthy in the evidence
and the trial court should have weighed the probative value of
the evidence against its prejudicial effect under Evidence Code
section 352 and concluded the probative value far outweighed any
possible prejudice to the prosecution. She further argues
exclusion of the evidence amounted to a denial of her right to
present a defense.

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Evidence Code section 1250 states: “(a) Subject to Section
1252, evidence of a statement of the declarant‟s then existing
state of mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental feeling, pain,
or bodily health) is not made inadmissible by the hearsay rule
when: [¶] (1) The evidence is offered to prove the declarant‟s
state of mind, emotion, or physical sensation at that time or at
any other time when it is itself an issue in the action; or [¶]
(2) The evidence is offered to prove or explain acts or conduct
of the declarant. . . .”
Evidence Code section 1252 in turn provides: “Evidence of
a statement is inadmissible under this article if the statement
was made under circumstances such as to indicate its lack of
trustworthiness.” To be admissible under this section,
“statements must be made in a natural manner, and not under
circumstances of suspicion, so that they carry the probability
of trustworthiness. Such declarations are admissible only when
they are „“made at a time when there was no motive to deceive.”‟
[Citations.]” (People v. Edwards (1991) 54 Cal.3d 787, 820.) A
determination under Evidence Code section 1252 “„requires the
court to apply to the peculiar facts of the individual case a
broad and deep acquaintance with the ways human beings actually
conduct themselves in the circumstances material under the
exception. Such an endeavor allows, in fact demands, the
exercise of discretion.‟ [Citation.] A reviewing court may
overturn the trial court‟s finding regarding trustworthiness

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only if there is an abuse of discretion. [Citations.]”
(Edwards, at pp. 819-820.)
The People contend the trial court correctly concluded
Knorr‟s statement to her sister was not trustworthy because
“Knorr had strong motives to misrepresent her involvement in the
crime spree to her sister.” According to the People, Knorr “did
not want her sister to think badly of her” and “her sister could
later claim that Knorr was an unwilling participant and provide
[Knorr] with a defense.” The People further argue the law does
not require the court to conduct an Evidence Code section 352
analysis and, in any event, the probative value of the testimony
was minimal in light of other evidence demonstrating Knorr‟s
active participation in the crime spree. Finally, the People
point out that, by the time Knorr purportedly made the statement
to her sister, the robbery, burglary and kidnapping had already
taken place, and Knorr was not convicted of any of the offenses
that occurred thereafter.
The People place unwarranted emphasis on the fact the
offenses for which Knorr was convicted all occurred before her
purported statement to her sister. To the extent Knorr‟s
statement was probative of her state of mind at the time it was
made, it was also probative of her state of mind both before and
after the statement.
At any rate, assuming the trial court erred in excluding
the evidence, we conclude such error was harmless. “A verdict
or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous

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26
exclusion of evidence unless the court which passes upon the
effect of the error or errors is of the opinion that the error
or errors complained of resulted in a miscarriage of
justice . . . .” (Evid. Code, § 354.) A miscarriage of justice
should be found only where it is reasonably probable a result
more favorable to the appealing party would have been reached in
the absence of error. (O’Hearn v. Hillcrest Gym & Fitness
Center, Inc. (2004) 115 Cal.App.4th 491, 500.)
In this instance, the evidence showed that while Knorr may
not have been a gang member, she was heavily involved with the
gang. One of the participants in the home invasion was her
boyfriend Kidd. She is also the one who first told the others
that Nate had disrespected the gang, a clear trigger for gang
violence, and that Nate had a Mercedes SUV in his garage. And,
as discussed earlier, Knorr readily participated in the
kidnapping of Doe after it commenced. She was the one who led
the others to the apartment complex and then to the home of A.S.
Knorr was convicted of burglary and kidnapping, both of
which occurred before the purported statement about being afraid
of the gang. She was not convicted of any of the offenses that
occurred thereafter. Since the excluded testimony was coming
from Knorr‟s sister, whom the jury could reasonably view as
biased in her favor, it is not reasonably likely a more
favorable outcome would have been reached had the evidence come
in.

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H
Handcuffs
After a lunch break, while Doe was still on the stand,
Knorr‟s attorney moved for a mistrial. As the basis for the
motion, he asserted: At the commencement of the lunch break,
“first thing I heard was the very distinctive metallic loud
clicking sounds of the handcuffs. [A guard] began handcuffing
Ms. Knorr.
“I immediately upon hearing that reached over, put my hands
on top of his hand and said whoa, whoa, whoa, to try to stop the
situation. He did stop. But when I looked over and put my
hands up there, I definitely saw that the cuffs were out. They
were about waist high, and that would have been on his right
side, which is exposed to the Knorr jury, exposed to both
juries. All the jurors were here. I do not--I did not look
over at the jury because I was so focused on hearing that sound
and protecting Ms. Knorr. So I do not know for sure, I cannot
say that which [sic] jurors saw this, except to say that these
jurors here in Mr. Kidd‟s jury, they were leaving, there were
some in the hallway close by.”
The court found the guard‟s action inappropriate and asked
if the defense wanted an admonition to the jury. Counsel
declined. Instead, counsel for Knorr asked for a mistrial. The
court denied the motion.
“[A] defendant cannot be subjected to physical restraints
of any kind in the courtroom while in the jury‟s presence,

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unless there is a showing of a manifest need for such
restraints.” (People v. Duran (1976) 16 Cal.3d 282, 290-291.)
“When a defendant is charged with any crime, and particularly if
he is accused of a violent crime, his appearance before the jury
in shackles is likely to lead the jurors to infer that he is a
violent person disposed to commit crimes of the type alleged.
[Citations.] The removal of physical restraints is also
desirable to assure that „every defendant is . . . brought
before the court with the appearance, dignity, and self-respect
of a free and innocent man.‟ [Citations.] Finally, the United
States Supreme Court has acknowledged that physical restraints
should be used as a last resort not only because of the
prejudice created in the jurors‟ minds, but also because „the
use of this technique is itself something of an affront to the
very dignity and decorum of judicial proceedings that the judge
is seeking to uphold.‟” (Id. at p. 290.) “[I]n any case where
physical restraints are used those restraints should be as
unobtrusive as possible, although as effective as necessary
under the circumstances.” (Id. at p. 291.)
Knorr cites several cases where the courts have said
shackling of a defendant in open court is not authorized absent
a showing of manifest need. However, the present matter does
not involve court authorization to maintain Knorr in shackles
before the jury. Rather, Knorr‟s claim is that, on one
occasion, a deputy inadvertently began placing handcuffs on her
before the jury departed from the courtroom. Thus, the question
whether there was a showing of manifest need is a red herring.

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29
The People contend there was no prejudice to Knorr, because
there is no evidence the jury actually saw the incident in
question. We agree. (See People v. Majors (1998) 18 Cal.4th
385, 406.) Furthermore, even assuming one or more members of
the jury saw it, there is nothing in the record to suggest Knorr
was adversely impacted thereby. On the contrary, Knorr was
convicted on fewer charges than any of the other defendants,
despite the fact she initiated everything and appeared to be the
one calling the shots, at least initially. The evidence of
Knorr‟s involvement in the various offenses for which she was
convicted was uncontradicted. Thus, any error in the deputy‟s
inadvertent actions was harmless beyond a reasonable doubt.
II
Lashea Merritt
Merritt raises the following contentions on appeal: (1)
the trial court erred in failing to instruct on mistake of fact
as a defense to conspiracy to commit murder; (2) the court gave
erroneous instructions on conspiracy; (3) the court gave
erroneous instructions on aggravated kidnapping; (4) sentence on
the burglary count must be stayed pursuant to section 654; (5)
the sentence for the gang enhancement on the burglary charge
must be reduced because the offense was not charged as a violent
felony; (6) the fine imposed under section 667.6 must be
stricken; (7) the overall sentence imposed constitutes cruel and
unusual punishment; and (8) the abstract of judgment must be
corrected on the firearm enhancement for the conspiracy offense.

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30
We agree the gang enhancement on the burglary charge must be
reduced, the section 667.6 fine must be stricken and the
abstract must be corrected. We also conclude the overall
sentence imposed on Merritt, which amounts to a life sentence
without any meaningful opportunity for parole, constitutes cruel
and unusual punishment.
A
Mistake of Fact Instruction
Merritt contends the trial court erred in failing to
instruct on mistake of fact as a defense to the charge of
conspiracy to commit murder. The jury was instructed on
conspiracy and the defense of withdrawal, which requires that
the defendant affirmatively announced to the others her
intention to withdraw. Merritt argues there was evidence the
defendants entered into a conspiracy to murder Doe but, before
following through, they made statements which led Merritt to
believe they had abandoned the conspiracy. Thus, she argues,
there was no occasion for her to announce her abandonment of the
plan as well. According to Merritt, a defendant “who honestly
but mistakenly believes that a conspiracy has terminated by
abandonment, prior to the commission of any overt acts, does not
have the mental state required for conviction of conspiracy.”
Merritt did not request a mistake of fact instruction.
Nevertheless, the trial court has a duty to instruct on general
principles of law relevant to the issues raised by the evidence.
(People v. Kimble (1988) 44 Cal.3d 480, 503.) The court in fact

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has a sua sponte duty to instruct on a particular defense “if it
appears that the defendant is relying on such a defense, or if
there is substantial evidence supportive of such a defense and
the defense is not inconsistent with the defendant‟s theory of
the case.” (People v. Sedeno (1974) 10 Cal.3d 703, 716,
overruled on other grounds in People v. Flannel (1979) 25 Cal.3d
668, 684, fn. 12.)
Merritt acknowledges she did not rely on a mistake of fact
defense at trial. On the contrary, her counsel argued to the
jury that Merritt was not even present at the time of the
offenses. Counsel relied on the testimony by Tyler that he left
Merritt behind at his motel room and evidence that Merritt had a
cast on her hand at the time but Doe made no mention of anyone
in the group having a cast. In other words, Merritt‟s counsel
took an all or nothing approach to the case.
Any argument that Merritt mistakenly thought the others had
abandoned their plan to murder Doe would have presupposed that
Merritt was present at the time. In other words, a mistake
defense would have been inconsistent with Merritt‟s theory of
the case. Hence, a mistake instruction would have been
improper.
At any rate, as support for her mistake defense, Merritt
cites Doe‟s testimony that she asked Tyler and Griffin to take
her to the home of a friend and they said they would and Doe‟s
further testimony that Merritt and others were coming in and out
of the room and arguing about whether they should let Doe go.
Merritt also relies on Doe‟s testimony that when they left

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A.S.‟s home, Doe thought she was going home, and B.K.‟s
testimony that when the others left the residence she heard
someone say they were taking Doe home. Merritt argues this
evidence demonstrates she believed any agreement to kill Doe had
been abandoned by the others.
However, regardless of whether there was substantial
evidence from which Merritt could have surmised the others had
abandoned their intent to murder Doe, there is no evidence
whatsoever that Merritt herself had done so. Merritt argues
that, because she mistakenly believed the others abandoned their
intent to kill Doe, Merritt had no occasion to announce to the
group her own withdrawal from the conspiracy. However, this
argument presupposes Merritt did in fact change her mind about
killing Doe. But the evidence is to the contrary. While the
others may have spoken about taking Doe to the home of her
friend, Merritt insisted instead that Doe could not be trusted
and should be killed. Hence, any mistaken belief about what the
others may have been thinking is irrelevant. Merritt was not
entitled to a mistake of fact instruction.
B
Conspiracy Instructions
The jury was given the following instruction on conspiracy
pursuant to CALCRIM No. 416: “In addition to the conspiracy
charged in Count Seven [conspiracy to commit murder], the people
have presented evidence of an uncharged conspiracy to commit
residential robbery. [¶] . . . A member of a conspiracy . . .

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33
is criminally responsible for the acts or statements of other
members of the conspiracy done to help accomplish the goal of
the conspiracy. [¶] . . . [¶] The people must prove that the
members of the alleged conspiracy had an agreement and intent to
commit Count One, residential robbery.”
The court did not also instruct on natural and probable
consequences pursuant to CALCRIM No. 417. That instruction
reads in relevant part: “A member of a conspiracy is criminally
responsible for the crimes that he or she conspires to commit,
no matter which member of the conspiracy commits the crime. [¶]
A member of a conspiracy is also criminally responsible for any
act of any member of the conspiracy if that act is done to
further the conspiracy and that act is a natural and probable
consequence of the common plan or design of the conspiracy.
This rule applies even if the act was not intended as part of
the original plan. . . . [¶] A natural and probable
consequence is one that a reasonable person would know is likely
to happen if nothing unusual intervenes. In deciding whether a
consequence is natural and probable, consider all of the
circumstances established by the evidence. [¶] A member of a
conspiracy is not criminally responsible for the act of another
member if that act does not further the common plan or is not a
natural and probable consequence of the common plan. . . .”
Merritt contends the trial court erred in giving CALCRIM
No. 416 without also giving CALCRIM No. 417. Merritt argues
giving CALCRIM No. 416, standing alone, allowed the jury to
convict her on “an invalid legal theory.” According to Merritt,

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the instruction “presented the uncharged conspiracy as an
alternative theory of liability, one which erroneously allowed
the jury to convict [her] for charged crimes committed by co-
conspirators in the uncharged residential robbery conspiracy, as
long as such crimes were „done to help accomplish the goal of‟
that conspiracy, even if such crimes were not a foreseeable, or
natural and probable, result of the „common design or plan.‟”
For example, Merritt argues, the jury could have concluded the
kidnapping and attempted murder were committed in order to
eliminate a witness to the robbery and, therefore, were done to
help accomplish the goal of the conspiracy, despite the fact
those crimes may not have been a natural and probable
consequence of the robbery.
Merritt‟s argument is self-contradicting. On the one hand,
she argues that, because the jury could have concluded the
kidnapping and attempted murder were done in furtherance of the
conspiracy to commit robbery, the jury should have been
instructed on natural and probable consequences. Nevertheless,
she argues, it would have been improper for the jury to conclude
the kidnapping and attempted murder were in furtherance of the
robbery conspiracy because they were not natural and probable
consequences of the robbery.
At any rate, on the evidence presented in this matter, no
reasonable jury would have convicted Merritt of kidnapping or
attempted murder based on a theory that those offenses were
committed to assist in the robbery. On the kidnapping, Merritt
was not simply an absent co-conspirator. She actively

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35
participated in forcing Doe to accompany them from Nate‟s
residence to that of A.S. As for the attempted murder, there
was actually a charged conspiracy to commit murder. Thus, there
is no reason whatsoever why the jury would have relied on an
uncharged conspiracy to commit robbery as the basis for
convicting Merritt of attempted murder. Hence, the trial court
was not required to instruct with CALCRIM No. 417.
C
Aggravated Kidnapping Instructions
Merritt was convicted of aggravated kidnapping under
section 209, subdivision (b)(1). That subdivision reads: “Any
person who kidnaps or carries away any individual to commit
robbery, rape, spousal rape, oral copulation, sodomy, or any
violation of Section 264.1, 288, or 289, shall be punished by
imprisonment in the state prison for life with the possibility
of parole.” The defendants were charged with having kidnapped
Doe “to commit robbery and/or forcible sexual assault.” The
court likewise instructed the jury that the people must prove,
among other things, the defendants “intended to commit robbery
or forced sexual assault.” The court later instructed: “[T]o
decide whether the defendant intended to commit robbery or
forced sexual assault, refer to the separate instructions I will
give you on those crimes.”
The court instructed the jury that forcible oral copulation
is a general intent crime, requiring proof only that the person
acted with wrongful intent. The court further instructed: “A

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person acts with wrongful intent when he or she intentionally
does an act on purpose. However, it is not required that he or
she intend to break the law.”
Merritt contends the foregoing instructions were
inadequate, as they failed to define “forcible sexual assault”
and failed to inform the jury of the mental state necessary for
such offense. Merritt argues there are offenses that could
qualify as forcible sexual offenses, such as misdemeanor sexual
assault (§ 243.4), that do not qualify for aggravated kidnapping
under section 209, subdivision (b)(1). Hence, one or more of
the jurors could have found Merritt guilty of aggravated
kidnapping based on a finding that she intended to commit a
forcible sexual assault that is not covered by section 209,
subdivision (b)(1).
The People counter that the term “forcible sexual assault”
was merely a shorthand way of referring to the various sex
crimes delineated in section 209, subdivision (b)(1), and the
only such crime charged in this matter was forcible oral
copulation. However, that does not resolve the issue. The only
sex crime actually committed was forcible oral copulation.
However, that does not mean it was the only crime intended at
the time of the kidnapping. In other words, the defendants may
have intended to commit one sex offense but ended up committing
another. And the intended sex offense may not have been one
covered by section 209, subdivision (b)(1).
Nevertheless, instructions should be considered as a whole
(People v. Doyell (1874) 48 Cal. 85, 93), and the overall

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instructions here did not mislead the jury. The only sex
offense defined to the jury was forcible oral copulation. In
the midst of this definition, the court indicated “[c]onviction
of a sexual assault crime may be based on the testimony of a
complaining witness alone.” There was no mention of any other
sex crime, whether or not included in section 209, subdivision
(b)(1). Thus, there is no reason to conclude the jury may have
considered another sex offense in deciding whether Merritt had
the requisite intent at the time of the kidnapping.
At any rate, “we will not set aside a judgment on the basis
of instructional error unless, after examination of the entire
record, we conclude the error has resulted in a miscarriage of
justice. (Cal. Const., art. VI, § 13.) A miscarriage of
justice occurs only when it is reasonably probable that the jury
would have reached a result more favorable to the [defendant]
absent the error. [Citations.]” (People v. Dieguez (2001) 89
Cal.App.4th 266, 277-278.) In this instance, it is not
reasonably probable the jury would have reached a different
result had the court provided an express definition of “forcible
sexual assault.”
D
Stay of Burglary Sentence
Merritt contends she cannot be sentenced both for robbery
and burglary, because those offenses were part of an indivisible
course of conduct with a single objective. That objective,
Merritt argues, was to steal property from Nate‟s residence.

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38
Thus, the sentence for burglary must be stayed. The People
counter that Merritt had multiple objectives in entering the
residence, including killing and robbing both Nate and anyone
else who might be present. We agree with the People.
Section 654 reads: “(a) An act or omission that is
punishable in different ways by different provisions of law
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision.
. . .” Although section 654 speaks in terms of “[a]n act or
omission,” it has been judicially interpreted to include
situations in which several offenses are committed during a
course of conduct deemed indivisible in time. (People v. Beamon
(1973) 8 Cal.3d 625, 639.) The key inquiry is whether the
objective and intent attending more than one crime committed
during a continuous course of conduct was the same. (People v.
Brown (1991) 234 Cal.App.3d 918, 933.) “[I]f all of the
offenses were merely incident to, or were the means of
accomplishing or facilitating one objective, defendant may be
found to have harbored a single intent and therefore may be
punished only once. [Citation.] [¶] If, on the other hand,
defendant harbored „multiple criminal objectives,‟ which were
independent of and not merely incidental to each other, he may
be punished for each statutory violation committed in pursuit of
each objective, „even though the violations shared common acts
or were parts of an otherwise indivisible course of conduct.‟
[Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

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The question whether a defendant entertained multiple
criminal objectives is one of fact for the trial court. (People
v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136.) “A trial court‟s
implied finding that a defendant harbored a separate intent and
objective for each offense will be upheld on appeal if it is
supported by substantial evidence.” (People v. Blake (1998) 68
Cal.App.4th 509, 512.)
Based on the evidence presented in this matter, the trial
court could reasonably have concluded the defendants harbored
multiple objectives in entering the residence, including assault
or murder of Nate. Knorr announced at the home of A.S. that
Nate had disrespected the gang and Tyler said, “fuck that nigga,
let‟s go smoke him.” He also said they should rob Nate. After
the defendants entered the residence, they pointed guns at Doe
and told her not to say anything while they searched the
residence for Nate. They then proceeded to assemble things from
the house to steal, including various clothing items and a
stereo from Doe‟s bedroom. Thus, Merritt could lawfully be
sentenced both for the robbery of Doe and for the burglary of
the residence for the purpose of assaulting or robbing Nate.
E
Sentence on Burglary Gang Enhancement
Section 186.22, subdivision (b), provides for an
enhancement on any offense committed for the benefit of a
criminal street gang. If the offense was a “serious felony”
within the meaning of section 1192.7, subdivision (c), the

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enhancement is five years. (§ 186.22, subd. (b)(1)(B).) If the
offense was a “violent felony” within the meaning of section
667.5, subdivision (c), the enhancement is 10 years. (§ 186.22,
subd. (b)(1)(C).) Included within the list of serious felonies
in section 1192.7, subdivision (c), is any burglary of the first
degree. (§ 1192.7, subd. (c)(18).) Included in the list of
violent felonies in section 667.5, subdivision (c), is first
degree burglary “wherein it is charged and proved that another
person, other than an accomplice, was present in the residence
during the commission of the burglary.” (§ 667.5, subd.
(c)(21).)
Merritt contends the term of 10 years imposed for the gang
enhancement on the burglary count must be reduced to five
because the offense was charged as a serious felony rather than
a violent felony and the jury returned a verdict on the
enhancement as charged. The People disagree, arguing the
information charged burglary of an inhabited dwelling occupied
by Nate E. Count two of the information read, in relevant part:
“On or about January 22, 2007, at and in the County of
Sacramento, State of California, defendants . . . did commit a
felony namely: a violation of Section 459 of the Penal Code of
the State of California, First Degree Residential Burglary, in
that said defendants did unlawfully enter an inhabited dwelling
house and trailer coach and inhabited portion of a building
occupied by [Nate E.], with the intent to commit larceny and any
felony.” (Italics added.)

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41
The People argue the foregoing adequately alleges a
nonaccomplice was present in the residence at the time of the
unlawful entry. They assert that in Doe v. Saenz (2006) 140
Cal.App.4th 960, at page 987, the Court of Appeal equated
“occupied” with the presence of a nonaccomplice during the
burglary. However, in that case, the court merely used the term
“[o]ccupied burglary” as a shorthand reference to the type of
burglary defined in section 667.5, subdivision (c)(21). The
court was not asked to decide if an allegation that the
residence was “occupied” at the time of the burglary was
sufficient to satisfy the charging requirement of section 667.5,
subdivision (c)(21). Cases are not authority for propositions
not considered therein. (McKeon v. Mercy Healthcare Sacramento
(1998) 19 Cal.4th 321, 328.)
In this instance, the information, as worded, alleged that
the defendants unlawfully entered “an inhabited dwelling house
and trailer coach and inhabited portion of a building occupied
by [Nate E.] . . . .” Rather than allege the defendants
unlawfully entered an inhabited dwelling while Nate was present,
this appears more reasonably to be a reference to the identity
of the inhabitant of the dwelling. This interpretation is
reinforced by the next paragraph of the information, which gives
notice that the offense alleged in count two “„is a serious
felony within the meaning of Penal Code Section 1192.7(c).‟”
There is no mention of a violent felony or section 667.5,
subdivision (c).

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In order to qualify as a violent felony, section 667.5,
subdivision (c)(21), requires that it be “charged and proved”
that another person was present in the residence at the time of
the burglary. It is undisputed that at least Doe was present in
the residence at the time of the burglary. Nevertheless, the
People made no effort to charge this matter as a violent felony.
Therefore, the sentence on the enhancement must be reduced to
five years. This applies to all defendants.
F
Section 667.6 Fine
Merritt contends the trial court improperly imposed a
$1,000 fine on the oral copulation conviction pursuant to
section 667.6, subdivision (f), which authorizes a fine of up to
$20,000 for anyone sentenced under section 667.6, subdivisions
(a) or (b). Those subdivisions deal with recidivist sex
offenders. Merritt was not sentenced under either of these
subdivisions, but under section 667.6, subdivision (c). The
People concede error. We shall direct that the $1,000 fine be
stricken. In addition, we shall direct that the two $1,000
fines imposed on Tyler for his two oral copulation convictions
be stricken for the same reason. Tyler was not sentenced under
either subdivision (a) or (b) of section 667.6.
G
Cruel and Unusual Punishment
Merritt contends the sentence imposed on her, 30 years plus
65 years to life, is equivalent to a sentence of life without

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the possibility of parole, inasmuch as she will not be eligible
for parole for 90.5 years (65 years plus 85 percent of 30
years), at which time she would be well over 100 years old.
And, Merritt argues, because she was only 15 years old at the
time of the offenses, such a sentence constitutes cruel and
unusual punishment.
The Eighth Amendment to the United States Constitution
“„forbids only extreme sentences that are “grossly
disproportionate” to the crime.‟” (People v. Cartwright (1995)
39 Cal.App.4th 1123, 1135.) A punishment also may violate the
California Constitution if “it is so disproportionate to the
crime for which it is inflicted that it shocks the conscience
and offends fundamental notions of human dignity.” (In re Lynch
(1972) 8 Cal.3d 410, 424, fn. omitted.) In Lynch, the
California Supreme Court suggested three areas of focus: (1)
the nature of the offense and the offender; (2) a comparison
with the punishment imposed for more serious crimes in the same
jurisdiction; and (3) a comparison with the punishment imposed
for the same offense in different jurisdictions. (Id. at
pp. 425-427.) Disproportionality need not be established in all
three areas. (People v. Dillon (1983) 34 Cal.3d 441, 487,
fn. 38.)
The United States Supreme Court has identified two classes
of cases that violate the proportionality standard. “The first
involves challenges to the length of term-of-years sentences
given all the circumstances in a particular case. The second
comprises cases in which the Court implements the

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proportionality standard by certain categorical
restrictions . . . .” (Graham v. Florida (2010) ___ U.S. ___
[176 L.Ed.2d 825, 836] (Graham).) This second classification,
in turn, “consists of two subsets, one considering the nature of
the offense, the other considering the characteristics of the
offender.” (Id. at p. ___ [176 L.Ed.2d at p. 836].) Under the
first subset, the high court has barred capital punishment for
nonhomicide offenses. (Kennedy v. Louisiana (2008) 554 U.S.
407, 411 [171 L.Ed.2d 525, 534].) Under the second, the court
has barred capital punishment for minors, even if they commit
murder. (Roper v. Simmons (2005) 543 U.S. 551, 578 [161 L.Ed.2d
1, 28].)
In Graham, the high court identified a hybrid category of
juvenile offenders who commit nonhomicide offenses and concluded
such offenders cannot be sentenced to life without the
possibility of parole. (Graham, supra, ___ U.S. at p. ___ [176
L.Ed.2d at p. 845].) The court explained: “As compared to
adults, juveniles have a „“lack of maturity and an
underdeveloped sense of responsibility”‟; they „are more
vulnerable or susceptible to negative influences and outside
pressures, including peer pressure‟; and their characters are
„not as well formed.‟ [Citation.] These salient
characteristics mean that „[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable
corruption.‟ [Citation.] Accordingly, „juvenile offenders

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cannot with reliability be classified among the worst
offenders.‟ [Citation.] A juvenile is not absolved of
responsibility for his actions, but his transgression „is not as
morally reprehensible as that of an adult.‟” (Id. at p. ___
[176 L.Ed.2d at p. 841].)
This does not mean a juvenile offender can never be kept in
prison for life. “A State is not required to guarantee eventual
freedom to a juvenile offender convicted of a nonhomicide crime.
What the State must do, however, is give [nonhomicide juvenile
offenders] some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation. It is for the
State, in the first instance, to explore the means and
mechanisms for compliance. It bears emphasis, however, that
while the Eighth Amendment forbids a State from imposing a life
without parole sentence on a juvenile nonhomicide offender, it
does not require the State to release that offender during his
natural life. Those who commit truly horrifying crimes as
juveniles may turn out to be irredeemable, and thus deserving of
incarceration for the duration of their lives. The Eighth
Amendment does not foreclose the possibility that persons
convicted of nonhomicide crimes committed before adulthood will
remain behind bars for life. It does forbid States from making
the judgment at the outset that those offenders never will be
fit to reenter society.” (Graham, supra, ___ U.S. at p. ___
[176 L.Ed.2d at pp. 845-846].)
In People v. Mendez (2010) 188 Cal.App.4th 47 (Mendez), the
Court of Appeal considered a sentence of 84 years to life for a

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defendant who was 16 years old at the time of his offenses,
which included carjacking, assault with a firearm, and seven
counts of robbery, all for the benefit of a criminal street
gang. (Id. at p. 50.) After first noting that the life
expectancy for an 18-year-old male at the time was 76 years and
the defendant would not be eligible for parole until he reached
the age of 88, the court concluded the defendant‟s sentence “and
an LWOP sentence are „materially indistinguishable.‟” (Id. at
p. 63.) Nevertheless, the court concluded the matter was not
controlled by Graham because that case was limited to defendants
“actually sentenced to LWOP.” (Ibid.) Nevertheless, applying
the underlying principles of Graham, the court concluded the
sentence imposed did not give the defendant a meaningful
opportunity for release. (Id. at pp. 63-64.) The court further
concluded the sentence also failed the proportionality test.
(Id. at p. 64.)
In a series of more recent cases, the Court of Appeal has
issued conflicting decisions on whether a term-of-years
sentence, where the juvenile offender will not be eligible for
parole until after he or she would normally be expected to die,
constitutes cruel and unusual punishment. However, the
California Supreme Court has granted review in these cases.
(See People v. Caballero (2011) 191 Cal.App.4th 1248, 1257,
review granted Apr. 13, 2011, S190647 [sentence of 110 years to
life for a juvenile offender did not violate Graham because,
technically, it was not an LWOP sentence]; People v. Ramirez
(2011) 193 Cal.App.4th 613, 626, review granted June 22, 2011,

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S192558 [sentence of 120 years to life for juvenile offender
convicted of three attempted homicides does not violate Graham,
citing Caballero]; People v. Nunez (2011) 195 Cal.App.4th 414,
425, review granted July 20, 2011, S194643 [juvenile offender‟s
original LWOP sentence modified to 175 years to life; the court
found a violation of Graham because there was no distinction
between this sentence and an LWOP]; People v. J.I.A. (2011) 196
Cal.App.4th 393, 404, review granted Sept. 14, 2011, S194841
[sentence making juvenile offender ineligible for parole until
he reaches 70 violates Graham].)
We agree with the approach taken by the court in Mendez.
Although, technically, Graham applies only to LWOP sentences
imposed on juvenile offenders, the sentence imposed on Merritt
in this matter is effectively indistinguishable from an LWOP
sentence. Merritt will not be eligible for parole until she is
over 100 years old, which is well beyond her normal life
expectancy. In rejecting a case-by-case approach to juvenile
offenders who receive an LWOP sentence, the high court in Graham
noted: “[A] categorical rule gives all juvenile nonhomicide
offenders a chance to demonstrate maturity and reform. The
juvenile should not be deprived of the opportunity to achieve
maturity of judgment and self-recognition of human worth and
potential. In [Roper v. Simmons, supra, 543 U.S. 551 [161
L.Ed.2d 1]], that deprivation resulted from an execution that
brought life to its end. Here, though by a different dynamic,
the same concerns apply. Life in prison without the possibility
of parole gives no chance for fulfillment outside prison walls,

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no chance for reconciliation with society, no hope. Maturity
can lead to that considered reflection which is the foundation
for remorse, renewal, and rehabilitation. A young person who
knows that he or she has no chance to leave prison before life‟s
end has little incentive to become a responsible individual.
. . .” (Graham, supra, __ U.S. at p. ___ [176 L.Ed.2d at
p. 848].) The court continued: “Terrance Graham‟s sentence
guarantees he will die in prison without any meaningful
opportunity to obtain release, no matter what he might do to
demonstrate that the bad acts he committed as a teenager are not
representative of his true character, even if he spends the next
half century attempting to atone for his crimes and learn from
his mistakes. The State has denied him any chance to later
demonstrate that he is fit to rejoin society based solely on a
nonhomicide crime that he committed while he was a child in the
eyes of the law. This the Eighth Amendment does not permit.”
(Ibid.)
The foregoing applies equally to Merritt. The sentence
imposed upon her for this one night of crimes committed in
concert with her older gang compatriots when she was only 15
years old guarantees she will die in prison without any
meaningful opportunity for release, regardless of what she might
do over the rest of her life to demonstrate she is fit to rejoin
society. Such a sentence is prohibited by the Eighth Amendment.

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H
Firearm Enhancement
Merritt received an enhancement of 25 years to life for
firearm use in connection with the conspiracy to commit murder
charge. The abstract of judgment indicates this enhancement was
pursuant to section 12022.53, subdivisions (b)(c)(d). Merritt
contends the abstract should be corrected to reflect the
enhancement was pursuant to section 12022.53, subdivision (e),
because she did not personally use a firearm. The People
counter that the jury verdicts reflect a true finding on the
firearm use enhancement pursuant to subdivisions (b), (c), (d)
and (e)(1). Thus, they argue, the abstract should be amended to
add subdivision (e)(1).
We disagree with both parties. Subdivision (b) of section
12022.53 requires that anyone who personally uses a firearm in
the commission of certain identified offenses be punished by an
additional term of 10 years. Subdivision (c) imposes an
enhancement of 20 years on anyone who personally discharges the
firearm, and subdivision (d) imposes an enhancement of 25 years
to life for anyone who personally discharges the firearm and
causes great bodily injury. Finally, subdivision (e)(1) reads:
“The enhancements provided in this section shall apply to any
person who is a principal in the commission of an offense if
both of the following are pled and proved: [¶] (A) The person
violated subdivision (b) of Section 186.22. [¶] (B) Any
principal in the offense committed any act specified in

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subdivision (b), (c), or (d).” Thus, subdivision (e)(1) makes
subdivisions (b), (c) and (d) applicable whenever any principal
in a gang-related offense is the person who uses the firearm.
As noted earlier, the evidence presented at trial was
contradictory as to whether Merritt accompanied the others when
they took Doe to the field where she was fired upon. And since
Doe did not know which of the occupants shot at her, the jury
could have concluded Merritt was one of the shooters. In the
alternative, the jury could have found the firearm enhancement
true as to Merritt based on the fact that another principal used
the firearm. Thus, both subdivision (d) and subdivision (e)(1)
apply. Both should be listed on the abstract. This applies to
all defendants convicted of conspiracy to commit murder.
III
David Griffin
Griffin raises the following contentions on appeal: (1)
the prosecutor committed misconduct during rebuttal argument;
(2) the prosecutor argued a legally incorrect theory of aider
and abettor liability; (3) there was insufficient evidence of a
conspiracy to murder Doe; (4) the trial court improperly imposed
a court facilities fee of $180; and (5) a clerical error in the
abstract of judgment must be corrected. We agree with the last
contention only.

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A
Prosecutorial Misconduct--Criticism of Defense
During her rebuttal argument, the prosecutor made the
following statements:
“[T]here is this old saying that when the facts--if you‟re
a defense lawyer, if the facts aren‟t on your side, argue the
law. If the facts aren‟t on your side, argue the law [sic].
“If you haven‟t got either one on your side, attack the
cops, attack the D.A. I‟m not evidence. I‟m one person here
who has a job to do, which is to bring this evidence in before
you for your consideration.
“Just because we have assembled for a trial, does not mean
that there is a valid defense. And at the same time, we are
very fortunate that in our country, nobody has to go through a
trial charged with a crime alone. Everybody is entitled to an
attorney.
“I believe in that. You believe in that. We‟re fortunate
to live in a country where we have that type of freedom and that
type of privilege and constitutional rights.
“But these lawyers, each of these lawyers are private
attorneys. They‟re obviously very well experienced and--but the
problem, nobody can come in here and say, gosh, looks like the
evidence has shown that they‟re guilty. They can‟t say that.”
At this point, defense counsel objected, but the trial
court overruled the objection. The prosecutor continued:
“They can‟t do that, but they have to say something.

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“But the lawyers, don‟t forget the lawyers, they‟re no more
responsible for what happened on January 22nd than I am.
“You‟ve heard--you‟ve heard from the witnesses and you‟ve
heard and you‟ve seen the evidence that tells you and talks to
you about what happened on January 22nd, on January 23rd of
2007. That‟s our focus. That‟s our focus.
“And when you‟ve heard the words about what the group did
to her, what they did to her, things of this nature, it‟s
appropriate for you to consider the experience and the testimony
of Destiny Doe when she describes, yes, what they did to her,
yes, what this group of people did to her.
“And you‟ll notice we talked in great specificity, also,
too, about each person‟s individual role and in multiple
defendant cases involved where people choose to aid and abet one
another to commit these types of crimes, especially in a gang
context and with this gang mentality, you have to consider all
of that in conjunction with the rest of the evidence in finding
each person‟s responsibility.
“Mr. Mahle [counsel for Griffin] commented several times,
he kept saying something about [Doe] being interviewed 17 times
and told--there‟s 17 versions of what she told you has happened.
Well, that‟s simply not true. That is simply not true.
“Or Miss Huey [counsel for Merritt] saying that her story
changes every time she‟s interviewed. The evidence does not
support that. That is not true.
“Or attacking Sergeant Nutley and the integrity of his work
as a professional. This is a man who does his job--basically

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what we learned here is this is a law enforcement professional
who will go out there and do his job, and it doesn‟t matter
whether you‟re the Governor or whether you‟re a homeless guy or
whether you‟re a prostitute.”
At this point, defense counsel again objected and the court
again overruled the objection. The prosecutor continued:
“Or whether you‟re somebody‟s grandmother next door, he‟s
got a job to go out and do because the focus is the protection
of the community and to enforce the laws against parties who
break them.
“So he treats her in a dignified and professional manner
that she doesn‟t get in here.”
Defense counsel again objected, and the court once again
overruled the objection. The prosecutor continued:
“And is then slammed, you know, slammed by these
belittling--.”
Defense counsel once again objected and asked for a finding
of misconduct. The court denied the request but sustained the
objection to the phrasing of the prosecutor‟s argument. The
prosecutor then resumed her argument:
“Like allowing [Doe] to meet him at Starbuck‟s, if a
witness or a victim wants to meet an officer at a location
rather than at their house, it‟s their prerogative. [¶] . . .
[¶]
“There is a lot of talk about Miss Doe‟s credibility, and
of course you‟re going to evaluate the credibility of every
witness. [¶] . . . [¶]

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54
“And it‟s not--it‟s interesting, Miss Huey said that we
need to think about how--that [Doe] has a motive to lie or
fabricate this whole event because she has a personal interest
in how this case is resolved.
“Well, what exactly is that? . . .
“What does she gain? The ability to have to look over your
shoulder for the rest of your life.
“Miss Huey described Miss Doe as a wild cat on the witness
stand during her cross-examination but crying her way through
direct.
“Gosh, it‟s impossible to understand how anyone who‟s been
a victim of a crime can come into court and even--.”
Defense counsel again objected, but the court again
overruled the objection.
Following the lunch break, the defendants moved for a
mistrial based on prosecutorial misconduct. The court denied
the motion.
Griffin contends the foregoing argument was improper for
several reasons. First, Griffin argues the prosecutor accused
defense counsel of fabricating a defense. Next, Griffin argues
the prosecutor shifted the burden of proof to the defendants.
Finally, according to Griffin, the prosecutor appealed to the
passions of the jurors. Griffin further argues the foregoing
misconduct affected the fundamental fairness of the trial and
resulted in prejudice.
“„The applicable federal and state standards regarding
prosecutorial misconduct are well established. “„A prosecutor‟s

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. . . intemperate behavior violates the federal Constitution
when it comprises a pattern of conduct “so egregious that it
infects the trial with such unfairness as to make the conviction
a denial of due process.”‟” [Citations.] Conduct by a
prosecutor that does not render a criminal trial fundamentally
unfair is prosecutorial misconduct under state law only if it
involves “„“the use of deceptive or reprehensible methods to
attempt to persuade either the court or the jury.”‟”
[Citation.]‟ [Citation.]” (People v. Hill (1998) 17 Cal.4th
800, 819.)
The prosecution has a solemn obligation to protect a
criminal defendant‟s constitutional right to a fair trial.
(Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314,
1321].) “Improper remarks by a prosecutor can „“so infect[] the
trial with unfairness as to make the resulting conviction a
denial of due process.”‟” (People v. Frye (1998) 18 Cal.4th
894, 969, disapproved on other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) Nevertheless, a prosecutor
has wide latitude in closing argument and may argue vigorously
that the evidence shows the defendant is guilty of the crimes
charged. (People v. Mincey (1992) 2 Cal.4th 408, 447-448;
People v. Wharton (1991) 53 Cal.3d 522, 567.)
“[T]he prosecutor has wide latitude in describing the
deficiencies in opposing counsel‟s tactics and factual
account.” (People v. Bemore (2000) 22 Cal.4th 809, 846.) “An
argument which does no more than point out that the defense is
attempting to confuse the issues and urges the jury to focus on

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what the prosecution believes is the relevant evidence is not
improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302,
fn. 47.)
Griffin cites three cases in support of his misconduct
claim. In People v. Bain (1971) 5 Cal.3d 839 (Bain), the
defendant, a black man, was charged with various sex offenses
committed against the victim and the defendant claimed the
victim was a “pick-up” who accompanied him willingly. (Id. at
pp. 843-844.) The prosecutor, also a black man, “asserted
before the jury that the defendant and his counsel had
fabricated the „pick-up‟ story; he stated that he, as a black
man, would not be prosecuting a black defendant unless he
personally believed the man to be guilty; he attacked the
integrity of the defense attorney and the office of the public
defender; and he referred repeatedly to racial matters.” (Id.
at p. 845.)
The Supreme Court found misconduct both as to the assertion
that the defendant and counsel had fabricated a defense during
the three-month period prior to trial and as to the prosecutor‟s
assertion of a personal belief in the defendant‟s guilt without
any disclaimer that this was based solely on the evidence
presented at trial. (Bain, supra, 5 Cal.3d at pp. 847-848.) As
to the latter, “a prosecutor is free to give his opinion on the
state of the evidence, and in arguing his case to the jury, has
wide latitude to comment on both its quality and the credibility
of witnesses. [Citations.] It is misconduct, however, to
suggest to the jury in arguing the veracity of a witness that

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the prosecutor has information undisclosed to the trier of fact
bearing on the issue of credibility, veracity, or guilt. The
danger in such remarks is that the jury will believe that
inculpatory evidence, known only to the prosecution, has been
withheld from them.” (People v. Padilla (1995) 11 Cal.4th 891,
945-946, overruled on other grounds in People v. Hill, supra, 17
Cal.4th at p. 823, fn. 1.) In Bain, the prosecutor did not just
express his belief in the defendant‟s guilt but asserted he
would not have pressed charges against the defendant if he did
not believe he was guilty. Thus, even before the evidence was
presented to the jury, the prosecutor believed the defendant was
guilty, which belief obviously could not have been based on the
evidence presented at trial. (Bain, supra, 5 Cal.3d at p. 848.)
In People v. Charlie (1917) 34 Cal.App. 411 (Charlie), the
defendant was charged with assault and the prosecutor questioned
the defendant about why he had not given testimony supporting
his claim of self-defense at the preliminary hearing, where he
testified without the aid of counsel. (Id. at p. 414.) In
commenting to the jury on this disparity in the defendant‟s
testimony, the prosecutor said: “„That was defendant‟s
testimony down before the magistrate, and if it was not the
truth it came pretty near being. That was before he had any
attorneys to tell him it was not true. When he got attorneys,
they said to him, “We can make a fine self-defense case out of
this, so you say that you saw the knife; you must tell that all
the time, and we will put Oakley . . . on the stand to
corroborate you, and we have got a good case.”‟” (Id. at

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pp. 414-415.) The Court of Appeal concluded these remarks were
not warranted by anything in the record and were improper. (Id.
at p. 415.)
In People v. McCracken (1952) 39 Cal.2d 336 (McCracken),
the defendant was prosecuted for child stealing, kidnapping and
murder of a 10-year-old and claimed the victim died as a result
of an accident, which he described at trial in some detail.
However, when first asked about the matter, the defendant denied
having seen the victim at all. (Id. at pp. 338-341.) During
argument to the jury, the prosecutor asserted the accident
defense did not originate from the mind of the defendant
himself, thereby suggesting it had been fabricated by defense
counsel. (Id. at p. 348.) The high court found this argument
to be “highly improper” (id. at p. 349), but ultimately
concluded it was not prejudicial in light of the evidence
against the defendant, defense counsel‟s objections, and
admonitions given by the court (ibid.).
Griffin contends the prosecutor in this matter committed
the same misconduct illustrated by the foregoing cases, thereby
shifting the burden of proof to the defense and appealing to the
passions of the jurors. Griffin points out that the prosecutor
asserted the defense presented was not “valid” and that defense
counsel was unable to say their clients were not guilty.
According to Griffin, the prosecutor implied defense counsel was
lying and appealed to the jury‟s passions by asserting defense
counsel treated Doe in an undignified manner.

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We find no misconduct. The first objection by the defense
came after the prosecutor said that simply because there is a
trial does not mean the defendants have a valid defense and
defense counsel cannot come into court and admit that their
clients are guilty. There is nothing improper in the
prosecution asserting the defendants have no defense to the
charges. This is simply another way of saying they are guilty.
There is no shifting of the burden of proof. As for asserting
that defense counsel cannot admit their clients are guilty, this
is a true statement, in light of the defendants‟ not guilty
pleas. This does not imply, as Griffin apparently assumes, that
defense counsel believed their clients are guilty.
The next objection came after the prosecutor denied that
Doe had changed her version of the events each time she was
interviewed and asserted that Sergeant Nutley, the lead
investigator who interviewed Doe a number of times, treated her
the same as he would have the Governor, notwithstanding the fact
Doe was a prostitute. The basis of the defense objection is not
stated on the record. However, to the extent Griffin contends
this was improper vouching for a witness, it was not.
The next objection came after the prosecutor said Sergeant
Nutley treated Doe in a dignified and professional manner “that
she doesn‟t get in here.” Again, the basis for the objection is
not stated. However, to the extent the prosecutor was implying
that defense counsel did not treat Doe in a dignified manner,
there is nothing improper in this. Despite having repeatedly
admitted that she was working as a prostitute at the time and

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still does, Doe was questioned over and over again by defense
counsel about these matters. At one point, one of the defense
attorneys inadvertently referred to Doe as Ms. Smith and was
corrected by the prosecutor. Defense counsel then spelled the
name out as “D-o-u-g-h”, to which Doe responded, “That‟s not
funny.” The court admonished defense counsel about use of the
fictitious “Doe” designation. Doe was also belittled about her
claim that she worked as a preschool teacher, since she did not
in fact have a teaching credential and was no more than a
teacher‟s aide. She was further questioned about the change in
her hairstyle for trial and her use of the word “relevant” in
response to a question during direct examination, in light of
her lack of legal training. Doe responded, “I‟m not stupid,
thank you.” Thus, the prosecutor was merely responding to the
treatment given the victim by defense counsel.
The next objection came after the prosecutor asserted that
Doe was “slammed” and belittled. Although the court denied the
request for a finding of misconduct, it did sustain the
objection to the phrasing of the comment.
The final objection came after the prosecutor stated:
“Gosh, it‟s impossible to understand how anyone who‟s been a
victim of a crime can come into court and even--.” Defense
counsel objected that this “misstates the burden” and the court
overruled the objection. We see no basis for concluding this
comment somehow shifted the burden to the defendants.
In Bain, the prosecutor asserted the defendant and his
counsel had fabricated their defense and further assured the

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jury he would not have prosecuted the defendant if he did not
believe he was guilty, without explaining the basis for that
belief. In Charlie, the prosecutor asserted the defendant
changed his story between the preliminary hearing, when he was
unrepresented, and trial, when he was represented by counsel.
The prosecutor asserted defense counsel instructed his client to
assert he had seen the victim with a knife. In McCracken, the
prosecutor asserted that the defendant‟s accident defense did
not originate in his own mind, thereby inferring it had been
fabricated by defense counsel.
The present matter does not involve anything even remotely
approaching what occurred in those three cases. The prosecutor
did no more than assert the defendants had no valid defense and
chided defense counsel for having treated the victim roughly.
This is not misconduct.
B
Prosecutorial Misconduct--Aiding and Abetting Theory
Griffin contends the prosecutor‟s arguments incorrectly led
the jury to believe it could convict an individual defendant on
the basis of group liability rather than individual liability.
Griffin points out that an individual aider and abettor can be
held liable for a crime only if he or she had the requisite
intent and, therefore, an aider and abettor can have a lesser
level of culpability than the person who commits the crime.
According to Griffin, the prosecutor improperly led the jury to

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believe all parties share guilt equally. Griffin misreads the
prosecutor‟s arguments.
“Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing. [Citations.] To be guilty
of a crime as an aider and abettor, a person must „aid[] the
[direct] perpetrator by acts or encourage[] him [or her] by
words or gestures.‟ [Citations.] In addition, except under the
natural-and-probable-consequences doctrine [citations], which is
not implicated on the facts presented here, the person must give
such aid or encouragement „with knowledge of the criminal
purpose of the [direct] perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating
commission of,‟ the crime in question. [Citations.] When the
crime at issue requires a specific intent, in order to be guilty
as an aider and abettor the person „must share the specific
intent of the [direct] perpetrator,‟ that is to say, the person
must “know[] the full extent of the [direct] perpetrator‟s
criminal purpose and [must] give[] aid or encouragement with the
intent or purpose of facilitating the [direct] perpetrator‟s
commission of the crime.” [Citation.] Thus, to be guilty of
attempted murder as an aider and abettor, a person must give aid
or encouragement with knowledge of the direct perpetrator‟s
intent to kill and with the purpose of facilitating the direct
perpetrator's accomplishment of the intended killing--which
means that the person guilty of attempted murder as an aider and

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abettor must intend to kill. [Citation.]” (People v. Lee
(2003) 31 Cal.4th 613, 623-624.)
Because an aider and abettor must himself or herself have
the requisite mental state to commit the attempted crime, his or
her liability may be different from that of the actual
perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1114.)
Of course, the line between an actual perpetrator and an aider
and abettor is often blurred. (See People v. Calhoun (2007) 40
Cal.4th 398, 402.) One acting in concert with another to commit
a crime may be both perpetrator and aider and abettor at the
same time.
Griffin contends the prosecutor‟s arguments were
inconsistent with the foregoing principles. The prosecutor
began her argument to the jury as follows: “Long before this
was ever our case, this was already a gang case. These
defendants, independent of one another and together, had made
conscious decisions to become 29th Street Crip gangsters or
commit crimes with them. If we‟ve learned anything from
Detective Bell and Zachary Tyler‟s testimony as well, we know
that the 29th Street Crip--Crip gang members are committed to a
lifestyle of crime. They‟re committed to backing each other‟s
play, whatever it may be. Long before they ever went over to
the residence on Belleau Wood Lane, they had already
contemplated crimes like these and a host of other crimes that
they were willing to commit in the name of the 29th Street
Crips.”

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At this point, the defense objected, but the objection was
overruled. The prosecutor continued: “When this home invasion
started leading to kidnapping and almost murder, it doesn‟t
matter whose idea it was or whether they discussed it each step
of the way. When they car caravanned over to that home intent
on robbing and smoking another human being, they acted as one.
They acted on intentions that they have harbored on a daily
basis for a long time. That‟s not to say that gang members
can‟t have other lives as well. But when they‟re out there with
their homeboys in the street, they‟re not Mr. Tyler or Ms.
Merritt in a dress shirt and tie or lace and a pretty sweater,
they‟re Smash and Lady Smash with guns and blue bandanas
concealing their faces.”
Griffin contends the foregoing is an improper argument
regarding propensity to commit crimes based solely on gang
status. He further contends the argument implies that each
defendant harbored the same intent simply because they were gang
members.
We find no misconduct in the prosecutor‟s argument. The
jury was properly instructed that aider and abettor liability
requires a finding of knowledge of the perpetrator‟s intent to
commit the crime and specific intent to aid and abet the
perpetrator in committing the crime. The prosecutor‟s argument
did not say the jury need not find the aider and abettor
specifically intended that the perpetrator commit the crime.
Rather, the prosecutor argued the jury could infer such intent
based in part on gang status. In other words, the fact that

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each defendant was a member of a criminal street gang, coupled
with the fact they accompanied each other to the crime scene,
may be used to infer the requisite intent. Since there is
rarely ever direct evidence of intent, this was a proper comment
on the evidence, especially in light of the expert testimony
presented by the prosecution on gang culture.
Much later, the prosecutor argued: “Everybody aided and
abetted in this offense [attempted murder]. It is--the law
recognizes under circumstances like ours it‟s--it‟s as if
everybody is the shooter, ‟cause everyone shares responsibility
for the attempted murder.”
Griffin contends this argument contradicts the principle
that each party‟s culpability must be judged individually.
Again, we disagree. The prosecutor was merely asserting that
the evidence showed each of the defendants was an aider and
abettor in the crime of attempted murder. This is no more
problematic than if the prosecutor had said the evidence showed
Griffin fired at Doe with the intent to kill her. The
prosecutor‟s statement that it is as if each defendant was the
shooter is not a misstatement of the law. Once it is
established that a particular defendant was an aider and abettor
in the crime of attempted murder, the law treats that person as
if he or she was the perpetrator. However, it must first be
established that the person was an aider and abettor.
Griffin next challenges the following argument: “[The]
State of California‟s also gonna ask that you find that this
attempted murder was done with premeditation and deliberation.

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Premeditation and deliberation. You‟re gonna hear the word
used--what‟s called a principal, that a principal--it‟s just a
legal word. A principal is someone who‟s responsible for a
crime. So it‟s either a person who‟s directly responsible like
the shooter, or it‟s a person who aids and abets the attempted
murder. Both people are principals in the crime, both people
share responsibility for it. [¶] So you‟re going to hear the
word, a principal, that‟s what it means. And you have to find
premeditation and deliberation for everybody.” (Italics added.)
Griffin contends the prosecutor was wrong to say the jury
had to find premeditation and deliberation for everybody.
According to Griffin, such finding may be different as to each
defendant.
Griffin misreads the quoted statement. The prosecutor was
not saying the jury was required to make a finding that all
defendants premeditated and deliberated the attempted murder.
In other words, the prosecutor did not say that if one
premeditated and deliberated, they all did. Rather, the
prosecutor was saying the jury must make a finding on the issue
of premeditation and deliberation as to each defendant. Those
findings may be different.
Finally, Griffin takes issue with the following statement
by the prosecutor during rebuttal: “And you‟ll notice we talked
in great specificity, also, too, about each person‟s individual
role and in multiple defendant cases involved where people
choose to aid and abet one another to commit these types of
crimes, especially in a gang context and with this gang

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mentality, you have to consider all of that in conjunction with
the rest of the evidence in finding each person‟s
responsibility.”
Griffin again asserts the prosecutor was referring here to
“„group guilt‟” for gang members. We disagree. The cited
passage says nothing more than that gang status may be taken
into consideration in deciding whether any one defendant is
responsible for a particular crime. This is not contrary to the
law.
C
Sufficiency of the Evidence of Conspiracy
Griffin contends there is insufficient evidence he entered
into a conspiracy to murder Doe. Griffin acknowledges there was
an agreement among the defendants to commit a robbery but “the
co-defendants were not of a single mind about the rest of the
evening.” Doe testified that Griffin, unlike the others, was
quieter and more polite to her. Thus, he argues, “one cannot
infer from his behavior after the robbery that he necessarily
was in agreement with the other co-defendants for the rest of
the evening.” In fact, Doe testified that when they left the
home of A.S., Tyler and Griffin told her they were taking her
home. She also told Detective Nutley that Tyler and Griffin
were opposed to hurting or killing her. Griffin further points
out that Doe‟s testimony was uncertain as to who actually shot
at her. According to Griffin, while the jury could have found
he joined at the last minute in the attempt to murder Doe, “the

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evidence does not support the inference beyond a reasonable
doubt that he joined in an agreement to kill beforehand.”
“A conspiracy is an agreement between two or more people to
commit a public offense.” (People v. Herrera (1999) 70
Cal.App.4th 1456, 1464.) It requires not only a specific intent
to agree to commit a public offense but a further specific
intent to commit the offense itself. (People v. Superior Court
(Quinteros) (1993) 13 Cal.App.4th 12, 20.) It also requires
proof of an overt act committed by one or more of the
conspirators in furtherance of the object of the agreement.
(Ibid.)
“The agreement or the unlawful design of [the] conspiracy
may be proved by circumstantial evidence without the necessity
of showing that the conspirators met and actually agreed to
commit the offense which was the object of the conspiracy.”
(People v. Superior Court (Quinteros), supra, 13 Cal.App.4th at
p. 20.) “While mere association does not prove a criminal
conspiracy [citation], common gang membership may be part of
circumstantial evidence supporting the inference of a
conspiracy. [Citation.] The circumstances from which a
conspiratorial agreement may be inferred include „the conduct of
defendants in mutually carrying out a common illegal purpose,
the nature of the act done, the relationship of the parties
[and] the interests of the alleged conspirators . . . .‟
[Citation.]” (Id. at pp. 20-21.)
Here, in addition to a common gang membership among the
alleged conspirators, the evidence showed defendants got

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together to discuss what was to be done with Doe. Although
there may have been disagreement among them, eventually they
embarked on a course of action that involved taking Doe to a
field, releasing her and then taking shots at her as she
attempted to flee. From this evidence alone, a reasonable jury
could infer defendants agreed to kill Doe before they ever left
the home of A.S. Hence, substantial evidence supports Griffin‟s
conviction for conspiracy to commit murder.
D
Court Facilities Fee
Government Code section 70373 provides in relevant part:
“To ensure and maintain adequate funding for court facilities,
an assessment shall be imposed on every conviction for a
criminal offense . . . . The assessment shall be imposed in the
amount of thirty dollars ($30) for each misdemeanor or
felony . . . .” (Id. subd. (a)(1).) This provision did not go
into effect until January 1, 2009 (Stats. 2008, ch. 311, § 6.5),
after the crimes in this matter were committed.
Griffin contends imposition of the foregoing fee under the
circumstances of this case is not authorized. However, in
People v. Castillo (2010) 182 Cal.App.4th 1410, we concluded
Government Code section 70373 is not punitive and therefore does
not fall within the scope of ex post facto principles. (Id. at
p. 1413.) We further concluded that while the provision should
be applied prospectively, the operative event is the conviction,
not the crime. Hence, the provision is applicable to any

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conviction occurring after the effective date of the
legislation. (Id. at pp. 1414-1415.) Griffin was convicted
after the effective date of Government Code section 70373.
Therefore, the trial court properly imposed the court facilities
assessment.
E
Abstract of Judgment
Griffin contends the abstract of judgment incorrectly
identifies the count in box 6.a. for which he received an
unstayed, indeterminate term of 15 years to life, as count eight
rather than count three. The People concede the abstract should
be corrected to reflect count three rather than count eight. We
shall direct that the abstract be corrected.
IV
Zachary Tyler
Tyler raises the following contentions on appeal: (1) the
gang enhancements on counts four and five must be stricken
because there is insufficient evidence the sex crimes were gang-
related; (2) section 12022.53 violates equal protection and due
process; (3) the trial court improperly instructed that motive
is irrelevant to the gang offense and gang enhancements; and (4)
the gang enhancement on the burglary count must be reduced
because the burglary was not a violent felony. We have
previously concluded the gang enhancement on the burglary count
must be reduced to five years. We reject Tyler‟s remaining
contentions.

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A
Gang Enhancements on Sex Offenses
Tyler contends there is insufficient evidence to support
the gang enhancements on the two sex offenses. He argues there
is no evidence those offenses, as distinct from the others, were
committed for the benefit of the gang or that he had the
specific intent to benefit the gang. We disagree.
Section 186.22, subdivision (b)(1), provides: “[A]ny
person who is convicted of a felony committed for the benefit
of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members, shall, upon
conviction of that felony, in addition and consecutive to the
punishment prescribed for the felony or attempted felony of
which he or she has been convicted, be punished” by a term of
two, five or 10 years, depending on the nature of the offense.
Application of this enhancement requires proof that (1) the
offense was committed for the benefit of, at the direction of,
or in association with a criminal street gang, and (2) with the
specific intent to promote, further, or assist any criminal
conduct by members of the gang. (People v. Ramon (2009) 175
Cal.App.4th 843, 849.)
Regarding the first element, Tyler argues the lone fact
that the participants were gang members or associates is not
enough to establish that the offenses were committed for the
benefit of the gang. Nor is it sufficient that two or more gang

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members acted in concert to commit the crimes, inasmuch as
acting in concert was an element of the offense. Furthermore,
Tyler argues, the fact he and Merritt acted together to commit
the sex offenses is more a consequence of their family-like
relationship than their gang membership.
Tyler further contends there is insufficient evidence on
the second element of the gang enhancement--that he acted with
the specific intent to benefit the gang when he committed the
sex offenses. Tyler asserts his only motivations for committing
those crimes were personal pleasure and his business interest as
a pimp.
In People v. Albillar (2010) 51 Cal.4th 47 (Albillar), the
California Supreme Court considered the sufficiency of the
evidence to support street gang enhancements for multiple sex
offenses committed in concert. In Albillar, three members of
the Southside Chiques gang took turns raping the victim while
the others either assisted in holding her down or stood nearby.
(Id. at pp. 52-53.) They were subsequently convicted of
forcible rape in concert, forcible sexual penetration in
concert, and active participation in a criminal street gang.
They were also found to have committed the sex offenses for the
benefit of a criminal street gang. (Id. at p. 50.) On appeal,
the defendants challenged the sufficiency of the evidence to
support the substantive gang crime and the enhancements. (Id.
at p. 51.)
On the defendants‟ challenge to gang enhancements, the high
court acknowledged that the offenses must be gang-related, and

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not all crimes committed by gang members are related to the
gang. However, in this instance, the court found the offenses
were gang-related both because they were committed in
association with the gang and because they were committed for
the benefit of the gang. (Albillar, supra, 51 Cal.4th at
p. 60.) According to the court: “The record supported a
finding that [the] defendants relied on their common gang
membership and the apparatus of the gang in committing the sex
offenses against [the victim].” (Ibid.) In particular, the
court cited expert testimony about how gang members earn respect
and status by committing crimes with other members and gang
members choose to commit crimes together in order to increase
their chances of success and to provide training for younger
members. (Id. at pp. 60-61.) The court concluded the conduct
of the defendants, where each participant assisted the others
without a word being spoken, and each could count on the silence
of the others and group intimidation of the victim, “exceeded
that which was necessary to establish that the offenses were
committed in concert.” (Id. at p. 61.) The court elaborated:
“Defendants not only actively assisted each other in committing
these crimes, but their common gang membership ensured that they
could rely on each other‟s cooperation in committing these
crimes and that they would benefit from committing them
together. They relied on the gang‟s internal code to ensure
that none of them would cooperate with the police and on the
gang‟s reputation to ensure that the victim did not contact the
police.” (Id. at pp. 61-62.)

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Regarding the defendants‟ argument that they were related
to each other and lived together and “„it is conceivable that
several gang members could commit a crime together, yet be on a
frolic and detour unrelated to the gang,‟” the court noted the
record contained no evidence of the significance of the family
ties to the criminal activity. (Albillar, supra, 51 Cal.4th at
p. 62.) The court further noted that the defendants‟
relationships to the gang were more than superficial. They all
had gang tattoos and the apartment they shared was saturated
with gang paraphernalia. (Ibid.)
The high court also found sufficient evidence that the
crimes were committed to benefit the gang. (Albillar, supra, 51
Cal.4th at p. 63.) According to the gang expert: “„When three
gang members go out and commit a violent brutal attack on a
victim, that's elevating their individual status, and they're
receiving a benefit. They're putting notches in their
reputation. When these members are doing that, the overall
entity benefits and strengthens as a result of it.‟ Reports of
such conduct „rais[e] the[] level of fear and intimidation in
the community.‟” (Ibid.) The court explained: “Expert opinion
that particular criminal conduct benefited a gang by enhancing
its reputation for viciousness can be sufficient to raise the
inference that the conduct was „committed for the benefit of
. . . a[] criminal street gang‟ within the meaning of section
186.22(b)(1).” (Ibid.)
On the second prong of the section 186.22, subdivision (b),
analysis, the high court concluded the scienter required is “the

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specific intent to promote, further, or assist in any criminal
conduct by gang members--including the current offenses--and not
merely other criminal conduct by gang members.” (Albillar,
supra, 51 Cal.4th at p. 65.) The court further concluded the
criminal conduct the defendant sought to promote, further or
assist, if other than the current offenses, need not necessarily
be gang-related. (Id. at p. 67.) Finally, the court indicated
that “if substantial evidence establishes that the defendant
intended to and did commit the charged felony with known members
of a gang, the jury may fairly infer that the defendant had the
specific intent to promote, further, or assist criminal conduct
by those gang members.” (Id. at p. 68; see also People v.
Villalobos (2006) 145 Cal.App.4th 310, 322; People v. Morales
(2003) 112 Cal.App.4th 1176, 1198-1199.) In other words, if the
defendant intentionally committed the offense, and did so with
known gang members, the jury may infer the requisite specific
intent for the gang enhancement.
In the present matter, Detective Brian Bell testified as
the prosecution‟s gang expert. Bell testified about certain
photographs depicting Tyler and Merritt together flashing signs
for the 29th Street Crips and explained that Merritt‟s gang name
“Lady Smash” can signal a dating or mentoring relationship with
Tyler, whose gang name is “Smash.” Bell testified about the
concept of respect in gang culture, that all gang members strive
for respect and respect can be gained by possessing guns,
committing violent crimes and intimidating members of the
community. Such activities heighten the level of the member in

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the gang and benefit the gang itself. According to Bell: “If a
gang member commits a crime, the more violent the crime is, the
more respect they gain by other rival gang members or members of
the community fear them more. [¶] And by committing more
violent crimes, it makes people less likely to want to--pretty
much let‟s them get away with whatever they want to do by
knowing how violent they can be. [¶] And in that way, it gains
respect for them.”
Detective Bell also explained the concept of disrespect in
gang culture. According to Bell, one way to disrespect a gang
is to say something derogatory about the gang, its members or
the clothing they wear. In the event of such disrespect, the
gang members are required to “act upon it, to retaliate, whether
it be to fight or to shoot or to stab the rival gang or whoever
disrespected them to let them know that that is inappropriate
and not going to be tolerated.” Bell explained that it is
important for gang members to show their willingness to commit
violent crimes in front of other gang members in order to
demonstrate what they are willing to do for the gang. Bell
further explained that a comment like that made to the group by
Knorr, where she told them Nate had said, “„Fuck Smash and them.
They‟re no fucking 29th Street Garden Blocc Crips,” is like
calling them out and requires them to prove “they‟re these bad,
violent 29th Street Crip gang members.”
Bell described the 29th Street Crips as small in numbers
and without a hierarchical structure. He listed the crimes they
commit as assault with a deadly weapon, robbery, murder,

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attempted murder, drug trafficking, shootings, witness
intimidation, kidnapping, forced sex crimes, and illegal firearm
possession.
Detective Bell further opined that the actions of the
defendants in going over to Nate‟s residence in response to what
Knorr told them Nate had said, carrying guns, wearing bandanas,
entering through a window, ransacking the home, and stealing
property benefited the gang and was done in association with the
gang. Bell also opined the kidnapping of Doe was for the
benefit of, at the direction of or in association with the gang.
Bell explained that holding a gun to Doe‟s head, threatening to
kill and sexually assault her, telling her this is the gang
life, and using gang lingo benefited the gang in making people
fear them and raising their stature in the community.
Bell further testified that the actions of the defendants
in moving Doe to the home of A.S., putting her in a room, openly
discussing sexually assaulting her, and forcing her to orally
copulate Tyler and L.M. were done at the direction of or in
association with the gang. Bell explained: “Well, again, the
association factor, you have these gang members who are together
committing these crimes. [¶] In the direction of, I would
consider Lashea Merritt directing [L.M.] and the victim to
engage in that act, would be at the direction of her being a
gang member.” Finally, Bell opined that the shooting of Doe was
at the direction of or in association with the gang.
As in Albillar, the foregoing expert testimony, coupled
with the evidence regarding the commission of the crimes

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themselves, was sufficient to establish the two oral copulation
offenses were committed for the benefit of the 29th Street
Crips. Those crimes were part of the crime spree that started
with the burglary of Nate‟s residence in retaliation for his
alleged disrespect of the gang and continued through the robbery
and kidnapping of Doe, the sexual assaults and finally the
attempted murder. The sex offenses did not occur in isolation.
Doe was told this was the gang life and she was with the gang
now. She was threatened with forced sex and death. Tyler told
her he would take care of her and she could work for him. At
the home of A.S., Doe was taken to a bedroom and put on a bed
and told they were going to “run a train” on her and force her
to give them oral sex. She was eventually forced to perform
oral sex on L.M. and then Tyler. In our view, this was more
than what was necessary to establish that the crimes were
committed in concert.
As in Albillar, there is no evidence to suggest Tyler and
Merritt acted together to commit the sex offenses because of
their purported family-like relationship rather than gang
membership. The evidence showed they were both heavily invested
in the gang and had more of a mentoring relationship than a
family relationship.
Tyler argues the gang expert‟s opinion that the sex
offenses were gang-related is belied by the fact the other
defendants were not charged with these crimes despite their
presence at the time. However, the fact that other defendants
could have been, but were not, charged with the same offenses

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does not detract from Tyler‟s culpability. Tyler further argues
the gang expert failed to explain how committing the sex
offenses benefitted the gang. However, this overlooks the
expert‟s recitation of the crimes 29th Street Crips commit,
which included forced sex offenses, and his explanation that
committing crimes in general benefits the gang.
As for Tyler‟s argument that there is insufficient evidence
he had the specific intent to benefit the gang, Albillar
instructs that such intent may be inferred from the fact the
defendant intentionally committed the offenses and did so with
known members of a gang. (Albillar, supra, 51 Cal.4th at
p. 68.) We find substantial evidence to support the gang
enhancements on the two oral copulation counts.
B
Constitutionality of Section 12022.53
Section 12022.53 provides for extra punishment in the event
a firearm is used in connection with an offense listed in
subdivision (a), which includes attempted murder (§ 12022.53,
subd. (a)(1) and (a)(18)). As explained earlier, subdivision
(b) requires an additional punishment of 10 years for anyone who
personally uses a firearm; subdivision (c) requires an
additional punishment of 20 years for anyone who personally
discharges a firearm; and subdivision (d) requires an additional
punishment of 25 years to life for anyone who personally
discharges a firearm and causes great bodily injury. However,
under subdivision (e)(1), the requirement of personal use of the

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firearm is eliminated where the offense was committed for the
benefit of a criminal street gang within the meaning of section
186.22, subdivision (b). For such crime, it is sufficient if
any principal in the offense used the firearm.
Tyler contends section 12022.53, subdivision (e)(1),
violates equal protection and due process by treating aiders and
abettors of gang offenses differently from aiders and abettors
of nongang offenses. Therefore, he argues, the gun use
enhancements on counts seven and eight must be stricken.
Similar challenges to section 12022.53 were rejected by the
Court of Appeal in People v. Gonzales (2001) 87 Cal.App.4th 1
(Gonzales) and People v. Hernandez (2005) 134 Cal.App.4th 474
(Hernandez). The first requirement of an equal protection claim
“„is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal
manner.‟” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.)
In Gonzales, the court concluded the defendants failed to make
the threshold showing that aiders and abettors of crimes
committed for the benefit of a criminal street gang are
similarly situated to aiders and abettors of nongang crimes.
(Gonzales, at p. 13.) In Hernandez, the court rejected the
defendant‟s equal protection claim premised on the differing
treatment of those who aid and abet gang crimes from those who
aid and abet crimes for the benefit of other dangerous groups,
such as drug cartels, white supremacists or terrorist
organizations. (Hernandez, at p. 481.) In doing so, the
Hernandez court applied the rational basis test to the statute

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and concluded the Legislature could rationally choose to address
the problem presented by criminal street gangs without also
going after all other dangerous groups. (Id. at p. 482.)
Defendant contends the rational basis test is not
appropriate where his fundamental liberty interests are
implicated. However, this same argument was rejected in
Hernandez. According to the court: “Where as here the question
is not whether to deprive Hernandez of his liberty but for how
long, we believe rational basis review, not strict scrutiny, is
the appropriate test to resolve an equal protection challenge.”
(Hernandez, supra, 134 Cal.App.4th at p. 483.) A defendant
“does not have a fundamental interest in a specific term of
imprisonment or in the designation a particular crime receives.”
(People v. Flores (1986) 178 Cal.App.3d 74, 88.)
We agree with Gonzales and Hernandez and reject Tyler‟s
equal protection challenge. Those who aid and abet gang crimes
are not similarly situated to those who aid and abet other
crimes, and there is a rational basis for treating those who aid
and abet gang crimes more severely than others.
We also reject Tyler‟s due process challenge. Tyler argues
section 12022.53, subdivision (e), subjects an aider and abettor
convicted of first degree murder as a natural and probable
consequence of brandishing a firearm in a gang-related case to
harsher punishment than a similar defendant in a nongang case.
He further argues the statute permits such harsher treatment
without a finding that the defendant intended to commit the
homicide. However, Tyler posits a hypothetical situation that

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does not exist in this matter. Tyler was not convicted based on
a natural and probable consequences theory. Thus, he has no
standing to raise such a claim. Furthermore, Tyler‟s argument
is more in the nature of an equal protection challenge, which we
have already rejected.
Tyler contends he was sentenced under section 12022.53,
subdivision (e)(1), “without a jury finding that he shared the
shooter‟s intent” as required by due process. However, as
explained earlier, this is not true. In order for Tyler to have
been found guilty of attempted murder on an aider and abettor
theory, it was necessary for the jury to conclude he had the
requisite specific intent to murder. (People v. Lee, supra, 31
Cal.4th at pp. 623-624.)
C
Motive Instruction
The jury was instructed on the elements of the substantive
gang offense and the gang enhancements, including specific
intent to promote or assist the gang. The jury was also
instructed with CALCRIM No. 370 as follows: “The People are not
required to prove that a defendant had a motive to commit any of
the crimes charged. [¶] In reaching your verdict, you may,
however, consider whether a defendant had a motive. Having a
motive may be a factor tending to show that the defendant is
guilty. Not having a motive may be a factor tending to show the
defendant is not guilty.”

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Tyler contends the trial court erred in failing to inform
the jury the foregoing motive instruction did not apply to the
gang participation offense or the gang enhancements. Tyler
argues that, because motive relates to the reason a defendant
commits a crime, it is a necessary part of the gang charges.
Tyler relies on People v. Maurer (1995) 32 Cal.App.4th 1121
(Maurer), a case involving charges of child annoyance under
section 647.6, where the jury was instructed that the conduct of
the defendant must have been “„motivated by an unnatural or
abnormal sexual interest in [the victim]‟” but further
instructed that motive was not an element of the crime and need
not be proven. (Id. at p. 1125.) This court concluded the
trial court erred in providing these conflicting instructions on
the mental state element of the offense and reversed the
defendant‟s conviction. (Ibid.)
In so concluding, we noted that motive is not generally an
element of a criminal offense, but that “section 647.6 is a
strange beast.” (Maurer, supra, 32 Cal.App.4th at p. 1126.) We
cited prior decisions which determined that, while no specific
intent is required for the offense, the acts forbidden are those
motivated by an unnatural or abnormal sexual interest in
children. (See In re Gladys R. (1970) 1 Cal.3d 855, 867-869;
People v. Pallares (1952) 112 Cal.App.2d Supp. 895, 901.) Thus,
as construed, motive is an element of the offense. Hence,
instructing the jury that motive need not be proven was error.
(Maurer, supra, 32 Cal.App.4th at p. 1127.)

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Maurer is clearly inapposite to the present matter.
Section 186.22, subdivision (a), criminalizes active
participation in a criminal street gang with knowledge that its
members engage in a pattern of criminal gang activity and
willful promotion of any felonious conduct of the members.
Section 186.22, subdivision (b), mandates an enhancement for any
conviction of a crime “committed for the benefit of, at the
direction of, or in association with a criminal street gang,
with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” (§ 186.22, subd. (b)(1),
italics added.)
In People v. Fuentes (2009) 171 Cal.App.4th 1133 (Fuentes),
the defendant was convicted of several offenses stemming from
two gang-related drive-by shootings. On appeal, the defendant
argued CALCRIM No. 370 conflicted with the instructions on the
substantive offense and enhancements relating to participation
in a criminal street gang. (Id. at p. 1139.) The Court of
Appeal disagreed, explaining: “An intent to further criminal
gang activity is no more a „motive‟ in legal terms than is any
other specific intent. We do not call a premeditated murderer‟s
intent to kill a „motive,‟ though his action is motivated by a
desire to cause the victim‟s death. Combined, the instructions
here told the jury the prosecution must prove that Fuentes
intended to further gang activity but need not show what
motivated his wish to do so. This was not ambiguous and there
is no reason to think the jury could not understand it. . . .”
(Id. at pp. 1139-1140.)

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The court further explained: “If Fuentes‟s argument has a
superficial attractiveness, it is because of the commonsense
concept of a motive. Any reason for doing something can rightly
be called a motive in common language, including--but not
limited to--reasons that stand behind other reasons. For
example, we could say that when A shot B, A was motivated by a
wish to kill B, which in turn was motivated by a desire to
receive an inheritance, which in turn was motivated by a plan to
pay off a debt, which in turn was motivated by a plan to avoid
the wrath of a creditor. That is why there is some plausibility
in saying the intent to further gang activity is a motive for
committing a murder: A wish to kill the victim was a reason for
the shooting, and a wish to further gang activity stood behind
that reason. The jury instructions given here, however, were
well adapted to cope with the situation. By listing the various
„intents‟ the prosecution was required to prove (the intent to
kill, the intent to further gang activity), while also saying
the prosecution did not have to prove a motive, the instructions
told the jury where to cut off the chain of reasons. . . .”
(Fuentes, supra, 171 Cal.App.4th at p. 1140.)
We agree with Fuentes. The jury here was instructed on the
intent necessary for the gang participation offense and the gang
enhancements. CALCRIM No. 370, informing the jury that motive
need not be proven, did not conflict with those instructions.
Tyler essentially seeks to equate motive with intent. However,
to adopt such a construction would mean that motive is an
element of all the crimes charged in this matter, not just the

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gang offense and gang enhancements, and CALCRIM No. 370 should
not have been given at all. Not even Tyler argues this. We
conclude there was no error in giving CALCRIM No. 370 without
the restrictive language urged by Tyler.
D
Gang Enhancement for Burglary
Tyler contends the term of 10 years imposed for the gang
enhancement on the burglary count must be reduced to five years,
because the offense was charged as a serious felony rather than
a violent felony and the jury was not asked to determine if
there was anyone present in the residence at the time of the
burglary, as required for a violent felony.
We have already addressed this issue and agree with Tyler.
The 10-year enhancement must be reduced to five.
V
Jordan Kidd
Jordan Kidd raises the following arguments on appeal: (1)
there is insufficient evidence to support the substantive gang
offense and gang enhancements; (2) the prosecutor committed
misconduct during argument; and (3) there was sentencing error
regarding the enhancement on count three. We agree with the
third contention and shall direct that the abstract of judgment
be corrected. We also conclude Kidd was not properly sentenced
on the burglary charge and shall remand for resentencing.

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A
Sufficiency of the Evidence--Gang Charges
Kidd contends the evidence established that several members
of the 29th Street Crips and one member of the Valley Hi Crips
committed the various crimes together. However, he argues, it
“fails to establish the critical requirement that the charged
crimes were committed for the benefit [of], at the direction of,
or in association with a criminal street gang.” He further
argues the evidence fails to establish the requisite specific
intent that the crimes were committed to advance criminal
conduct by gang members. Thus, he argues, the substantive gang
offense and gang enhancements must be reversed.
Kidd‟s argument is premised on an inaccurate and self-
serving reading of the evidence presented at trial. He asserts
“[t]here was evidence that Kim Knorr and Tyler may have been
motivated to engage in the charged offenses to avenge personal
affronts to them.” According to Kidd, Knorr was offended by her
abrupt eviction by Nate and told Tyler that Nate “had made
insulting comments about Tyler.” Kidd asserts Tyler responded
by saying the group should rob and harm Nate, but there is no
evidence any person in a position of authority with the gang
ordered that the offenses be committed.
The evidence does not bear this out. B.K. provided
testimony as to what occurred when Knorr arrived after being
dropped off by Doe. B.K. testified that Knorr was upset with
Nate because he told her she had to come and get her things.

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B.K. was then asked: “Okay. Did she say anything in front of
these--this group about Nate insulting the Crips?” She
responded in the affirmative. B.K. then testified that Knorr
said: “Um, fuck them--fuck Smash and them. They‟re not no 29th
Street Garden Block Crips.” B.K. testified this was said in
front of all the defendants. At that point, according to B.K.,
“[t]hey all jumped up and, like, started talkin‟ shit to each
other about--about it.” Tyler said, “fuck that nigga, let‟s go
smoke him.” Tyler also said they should rob Nate. At that
point, Tyler, Kidd, Griffin, Knorr, Merritt and L.M. departed
for Nate‟s residence.
Contrary to Kidd‟s assertions, the foregoing evidence shows
Knorr told the group that Nate had disrespected the gang, not
Tyler alone. And it was not just Tyler who reacted to it. When
Tyler said they should go rob and kill Nate, he was acting as
the spokesman for the group, not acting out of some personal
vendetta.
Kidd asserts the evidence indicates Doe did not mention any
gang talk by the perpetrators in her early interviews with
police. He further asserts that in his own interview with
police, he did not mention any gang motivation for the crimes.
Finally, Kidd asserts the prosecution‟s gang expert indicated
there was no formal structure to the 29th Street Crips, and the
gang never refers to itself as the “mob,” as Tyler allegedly
did.
None of the foregoing detracts from the other evidence
presented at trial that demonstrated the defendants were

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motivated in their course of conduct that evening by a perceived
affront to the gang. The gang was disrespected and it
retaliated. Regardless of what Doe may have said to the
investigators shortly after the event, she testified at trial
that Tyler and the others made repeated comments about being the
mob and that she was with the mob now. The evidence showed the
group conferred about their intended course of action during the
crime spree. They went to a gang apartment complex during their
travels and took Doe to a gang hangout.
Kidd argues “[t]here was no evidence that gang leadership
existed, let alone that gang leadership knew of and approved of
the charged crimes in advance of their commission.” However,
this is not a prosecution of the gang as such, but of five
individual gang members or associates. Their actions alone can
constitute gang activity whether or not gang hierarchy is aware
of what they are doing.
Finally, Kidd challenges the expert testimony of Detective
Bell as providing only generalizations about gang conduct and
nothing with respect to the 29th Street Crips and their gang-
related activities. We disagree. As explained in more detail
earlier, Detective Bell discussed crimes committed by various
members of the 29th Street Crips, the types of crimes committed
by this particular gang, and the other gang-related activities
of the members. Based on this information and the circumstances
surrounding the commission of the offenses in this matter, he
opined that those offenses were gang-related. There was nothing
more required.

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Kidd also contends there is insufficient evidence that the
offenses were committed with the specific intent to promote,
further or assist in criminal conduct by gang members. Kidd
argues there is no evidence he intended to commit the charged
offenses in order to further other criminal activity by gang
members or that the offenses were part of a gang operation
rather than “just crimes committed by gang members acting
together for their own personal ends.”
As explained earlier, the California Supreme Court in
Albillar concluded section 186.22, subdivision (b), does not
require that the charged offenses be committed for the purpose
of furthering other criminal activity of the gang. It is
sufficient if the defendant acted to further the charged gang
offenses. (Albillar, supra, 51 Cal.4th at pp. 64-65.) The
court further determined that, “if substantial evidence
establishes that the defendant intended to and did commit the
charged felony with known members of a gang, the jury may fairly
infer that the defendant had the specific intent to promote,
further, or assist criminal conduct by those gang members.”
(Id. at p. 68.) In this instance, it is undisputed Kidd
committed the various offenses with known gang members. Hence,
the jury may reasonably have inferred he had the specific intent
to promote, further or assist the gang.
Substantial evidence supports the substantive gang offense
and the gang enhancements.

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B
Prosecutorial Misconduct
Kidd challenges a number of comments made by the prosecutor
during argument to the jury which, he claims, amounted to
misconduct. However, Kidd failed to object to any such comments
and therefore failed to give the trial court an opportunity to
take any necessary corrective action.
“As a general rule a defendant may not complain on appeal
of prosecutorial misconduct unless in a timely fashion--and on
the same ground--the defendant made an assignment of misconduct
and requested that the jury be admonished to disregard the
impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
However, “[a] defendant will be excused from the necessity of
either a timely objection and/or a request for admonition if
either would be futile. [Citations.] In addition, failure to
request the jury be admonished does not forfeit the issue for
appeal if „“an admonition would not have cured the harm caused
by the misconduct.”‟ [Citations.]” (People v. Hill, supra, 17
Cal.4th at pp. 820-821.)
Kidd contends the trial court had a sua sponte duty to cure
the prosecutor‟s improper arguments. However, he cites no
authority for this proposition. A point raised in an appellate
brief without argument or legal support “is deemed to be without
foundation and requires no discussion by the reviewing court.”
(Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647.)

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Kidd next contends an objection and admonition could not
have cured the situation presented by the prosecutor‟s
arguments. However, beyond merely asserting the alleged
misconduct in this instance was “incurable,” Kidd again provides
no argument or support for this contention.
Kidd contends this court has discretion to review his
misconduct claims. He further contends that, at any rate, the
failure of his counsel to object amounted to ineffective
assistance. According to Kidd, “there can be no plausible
rational tactical purpose for trial counsel not to object to the
repeated, egregious instances of prosecutorial misconduct
discussed in this argument.”
Because we cannot determine Kidd‟s ineffective assistance
claim without considering the merits of his misconduct claims,
we shall proceed to address those claims.
Kidd first contends the prosecutor improperly argued a
theory of vicarious liability based on gang membership alone.
He cites the following argument:
“[L]ong before this ever became our case, this was already
a gang case. These defendants, independent of one another and
together, had made the conscious decision to become 29th Street
Crip gangsters or commit crimes with them. [¶] If we learned
anything from Detective Bell, as well as from Zachary Tyler‟s
testimony, we know that the 29th Street Crip gang members are
committed to a lifestyle of crime and that they‟re committed to
backing each other‟s play, whatever it may be. [¶] Long before
they ever went to that Belleau Wood Lane address, they‟d already

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contemplated this type of crime and a host of other types of
crimes that they were willing to commit in the name of the 29th
Street Crips.”
“Gang members like Jordan Kidd already know beforehand what
they‟re supposed to do. They don‟t even need to talk about it.”
“There is no passive gang member present when a gang acts
together. Each person plays a role and they create strength
through their numbers working as a team.
“There‟s no such thing as a passive rider in a gang case.
Each person shared the same motivation in this car as those back
home to silence this witness. Each person in this car knows
they‟re not taking [Doe] home. Each person can see that she‟s
put under a blanket when they leave Mama Solo‟s house. That‟s
not a friendly drive home. Each person knows they took a small
diversion to evade the police. Each person knows they got the
guns that they need. Each person can see that they‟re headed to
a dark, secluded field. Violence is no secret in this crowd.”
“And we know based on our evidence in this case, including
the expert testimony, that there is absolutely no way, no way,
that a gang member like Mr. Kidd would go into a potentially
explosive setting like entering an occupied residence without
knowing who is strapped or being strapped yourself. We know
from expert testimony, and the photographs, and seeing how guns
are passed around in our case that this is part of their pride
and part of the tools of the trade in the gang world.”
Kidd argues liability cannot be based on gang membership
alone. To hold otherwise, he argues, would lead to the absurd

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result that any gang member could be held liable for any other
gang member‟s act predicated on the common purpose of fighting
the enemy. He further argues the prosecutor‟s comments
contravened due process and rendered the trial fundamentally
unfair.
We find nothing inappropriate in the foregoing arguments.
Those arguments merely pointed out the backdrop for the alleged
crimes. These were not five individuals thrown together by
happenstance who acted together on a whim. These were gang
members who were presented with an instance of disrespect for
their gang and immediately took action in retaliation. The jury
here was properly instructed on the elements of the individual
crimes, including the scienter requirements. This is not a case
where one gang member is being held liable for the actions of
another done without the member‟s assistance. The five
defendants acted together throughout the evening. As the
California Supreme Court explained in Albillar, intent to
promote, further or assist criminal conduct of other gang
members may be inferred simply from the fact the members
intentionally committed the offenses together. (Albillar,
supra, 51 Cal.4th at 68.)
Kidd next contends the prosecutor made arguments based on
facts not in the evidence. He cites the following exchange
during the testimony of the prosecution‟s gang expert:
“Q [by prosecutor] And in your opinion, when a group of
people who are gang members and/or associates gather together,

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gather together for the purpose of committing a crime, is
anybody simply a bystander?
“MS. HUEY: Objection.
“MR. DORFMAN: That‟s--
“MR. MAHLE: Vague.
“THE COURT: All right. Sustained.”
Kidd argues that, despite the court‟s ruling sustaining the
objection, the prosecutor argued on the basis of the insinuation
contained in her question that all gang members present when the
crime is committed are guilty. He cites many of the same
statements quoted above in connection with his argument about
group liability.
We again find no misconduct. First, Kidd takes the
foregoing exchange out of context. The prosecutor‟s question
came right after the witness explained the concept of “backup”
in gang culture. Detective Bell testified: “For backup, it
would be if one of your gang individuals or friends or buddies
get involved in some type of fight or something like that and
you were there present, you would be expected to act upon and to
join him in assisting with the fight, as opposed to just
standing back and watching and being a bystander.” The
prosecutor was simply trying to get the expert to testify that,
where gang crimes are committed, all gang members present are
involved.
Furthermore, the prosecutor‟s argument thereafter was not
based on the insinuation in the question but on other evidence
presented regarding gang culture, the circumstances surrounding

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how these crimes went down, and the reasonable inference that
intent to assist the gang follows from the fact the individual
members actively participated.
Kidd next contends the prosecutor improperly urged the jury
to convict the defendants based on broad social policy
considerations rather than the facts of the case. He cites the
following arguments:
“These crimes affect us all as a community. They denigrate
the community. They have collateral victims, people like Mr.
[D.] and Mr. [W.] It doesn‟t matter whether the victim is a
gang member or a grandmother, a pimp or a prostitute. And as it
comes down to it, as far as . . . Doe being alone in this case
in the evidence, she‟s not alone.”
“Violent crime not only shatters victims and their sense of
security, but they shatter our communities. And in the final
analysis it doesn‟t matter whether the victim in this case is a
prostitute or somebody‟s grandmother, this case is about us
enforcing the rule of law in our society. We cannot . . . allow
lawlessness and tyranny by gang members or any other violent
criminals.”
The foregoing arguments were part of a larger argument
attempting to address one of the problems faced by the
prosecution in this case--the fact that the victim was a
prostitute, i.e., a person not trustworthy because she herself
committed crimes. The prosecutor was merely reminding the jury
that a crime against anyone in the community is a crime against
the community itself. This was not an appeal to convict based

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on a concern for gang violence in general but an appeal to look
beyond the avocation of the victim and to treat her just like
anyone else, as the law requires. There was nothing improper in
this.
Kidd next contends the prosecutor improperly and unfairly
denigrated defense counsel. He cites the following arguments:
“We cannot allow these red herrings to divert our attention
here. It‟s kind of infur--concerning when you hear words like
Lavish D., thrown out in this trial, or Stick-up Starz thrown
out in this trial. These are words from lawyers, and when a
lawyer asks a question, it‟s like saying have you stopped
beating your wife. We can‟t sit here and assume that the other
party beats his wife. It‟s the oldest trick in the book. I can
throw a question out there and that throws something out there
as if for you it has become evidence. Don‟t fall for that,
don‟t fall for that. [¶] This whole notion of Lavish D., and
Stick-up Starz, and everything else has nothing to do with our
case.”
“You‟ve also been asked to speculate where‟s Nate, where‟s
Nate, as if somehow that relates to a failure of proof or
something in this case. And I wanted to comment upon that
briefly as well, because that‟s another red herring.”
“Don‟t fall into that trap to divert you from focusing on
the evidence of what we did hear in this case.”
The red herrings to which the prosecutor was referring was
evidence about Doe‟s relationship with a different gang and a
particular gang member and the absence of any testimony from

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Nate, the victim of the burglary. During his argument, Kidd‟s
attorney, Mr. Dorfman, asserted that Doe mentioned Lavish D. in
an interview with police. He then said: “Well, now, what do we
know about Lavish D.? The gang expert tells us about Lavish D.
Lavish D., is a gangster pimp. He is the head of the Stick-up
Starz, the Stick-up Starz. . . . Do you remember in the
revealing photos of [Doe], she has a tattooed star on her, huh?
All of a sudden now she‟s not just a goody school teacher that
goes to work in December for Nate, the pimp. She‟s switching
jobs, switching from one pimp to another. That‟s where the
Lavish D., comes in. She‟s just job improving.”
Regarding Nate, Dorfman argued: “[T]here‟s a missing link
in this case, isn‟t there? There‟s a person whose name has been
mentioned, whose house has been burglarized, but who we‟ve never
seen in this courtroom, have we, and that‟s Nate. And Nate is
the catalyst in this case and I‟m going to show it to you, what
it‟s all about.
“You know, you ever watch these animal shows where they
show like a--like an eagle with great--he has a nest and then
maybe he has two or three eaglets in there and each--each parent
is bringing back things to feed them. And apparently it‟s a
usual thing that the toughest of all the eaglets eventually gets
rid of other two, and the parents say nothing about it, they
just continue to feed the survivor one. They kick them out of
the nest. Have you ever seen that before? I‟ve seen it. And
what you‟ve got here is you‟ve got a situation where we‟ve got
this Nate and, God, I‟ve seen it, you‟ve got to visualize how

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Nate is the catalyst. He is the force that brings this all
about. I imagine that he has got to be an Adonis. I‟m trying
to visualize him. Because catch this: In the beginning now we
know that there are at least three girls he‟s got working there.
We‟ve got Mia. Remember the story of Mia? Mia‟s knocking on
the door trying to get back in and not allowed in. And then you
got Kim who‟s kicked out and dumped out on the highway leaving
only the surviving eaglet.”
Dorfman went on to argue that Doe implicated Knorr in this
matter in order to get rid of her and also placed Knorr‟s
boyfriend, Kidd, in the car with the others in order to make the
story more plausible.
Of course, the problem with this argument is the testimony
of B.K., who confirmed Doe‟s account of the evening and placed
Knorr and Kidd in the group of perpetrators.
Nevertheless, in light of the defense strategy, the
prosecutor cannot be faulted for explaining to the jury that
evidence regarding Lavish D. and the Stick-up Starz and the
absence of Nate from the witness stand are not relevant to the
issues presented in this matter.
As explained earlier, a prosecutor has wide latitude in
describing the deficiencies in defense counsel‟s tactics.
(People v. Bemore, supra, 22 Cal.4th at p. 846.) An argument
that accuses the defense of attempting to confuse the issues and
urges the jury to focus on the relevant evidence is not
improper. (People v. Cummings, supra, 4 Cal.4th at p. 1302,

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fn. 47.) The prosecutor here did no more than that and, hence,
there was no misconduct.
Kidd next contends the prosecutor improperly vouched for
the veracity of two key witnesses, Doe and Detective Bell. He
cites the following arguments:
“We were fortunate in this case to hear from Detective
Brian Bell, both for his generalized knowledge about gangs and
the culture, but for his specialized knowledge about our
community. This is a man who works with violent crime cases on
almost a daily basis. He has experience in the Problem-Oriented
Policing that focused on high crime areas and neighborhoods
where gangs are terrorizing our community. He works with other
officers to gather intelligence and information and shares that
among law enforcement professionals. He‟s the type of officer
and detective who was selected to work on a Violent Crime Task
Force here in our community and presently is working as a gang
detective. He‟s the guy that told you I‟m out on the streets
daily unless I‟m involved in training or in court testifying.
He‟s the expert now who‟s teaching other officers, including in
the academy, about gangs and sharing his knowledge and his
experience in weekly and monthly intelligence meetings with
other relevant local and even out-of-the-area law enforcement
professionals.”
“[Tyler‟s] testimony lacks internal sense. For example,
what motivation--what motive does . . . Doe have to set up this
group of 29th Street Crips, putting her at great risk to do so
while letting the true almost-killers go free?”

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Kidd contends the foregoing arguments improperly conveyed
to the jury the prosecutor‟s belief in the veracity of these
witnesses. We disagree.
“[A] prosecutor is free to give his opinion on the state of
the evidence, and in arguing his case to the jury, has wide
latitude to comment on both its quality and the credibility of
witnesses. [Citations.] It is misconduct, however, to suggest
to the jury in arguing the veracity of a witness that the
prosecutor has information undisclosed to the trier of fact
bearing on the issue of credibility, veracity, or guilt. The
danger in such remarks is that the jury will believe that
inculpatory evidence, known only to the prosecution, has been
withheld from them.” (People v. Padilla, supra, 11 Cal.4th at
pp. 945-946.)
In United States v. Martinez (6th Cir. 1992) 981 F.2d 867,
the prosecutor argued there was nothing particularly significant
about the defendant that would have caused a police witness to
risk his 18-year career by lying in court about her. The
defendant claimed this was improper vouching, because there was
no evidence in the record that the witness risked his career by
lying. (Id. at p. 871.) The Court of Appeals concluded that,
while this may have been improper, it was an isolated incident
that did not prejudice the defendant. (Ibid.)
In the present matter, we have no vouching that could be
viewed as being based on evidence withheld from the jury.
Regarding Doe, the prosecutor said nothing more than that she
had no motive to lie. This is based solely on the circumstances

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presented in the evidence. The defense was, of course, free to
argue to the contrary, which it did with its discussion of the
eaglets.
As for Detective Bell, the prosecutor‟s comments were
merely a recitation of the officer‟s background and
qualifications, as revealed to the jury during testimony. As
explained above, the prosecutor may comment on the quality of
the evidence, including the credibility of witnesses, as long as
there is no suggestion the prosecutor‟s assessment is based on
evidence withheld from the jury. There was no such suggestion
here.
Finally, Kidd contends the prosecutor committed misconduct
by urging the jury to base his conviction on his gang membership
and associations. He cites the following arguments:
“Detective Bell talked with us about the gang culture,
their mentality. Gang members are proud of it. Sometimes they
even show--you‟ve seen them show themselves off on things like
Facebook and My Space. They like to take pictures of themselves
looking bad, looking bold. [¶] He told us about how gang
members get respect because respect--what respect means to us
means something completely different to them. They get respect
from committing crimes alone, bragging about it to others, or
committing crimes in front of each other so they can prove how
bad and how bold you are and what you‟re willing to do in the
name of a gang like the 29th Street Crips.”
“There are limitations, and the Judge is going to instruct
you on the limitations, for how you can consider gang evidence.

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And I want to tell you this up front, that gang evidence in no
way, shape, or form, can be used to say that Jordan Kidd or
these other defendants are bad guys or people with such bad
characters who have dispositions to commit crimes that,
therefore, they must have done it this time. You can‟t do that.
But gang evidence is very powerful evidence and compelling
evidence that you can and you should consider when determining
things like their motivations, Mr. Kidd‟s intentions, his
knowledge, his purpose as well as all of the others, to view how
everything fits together. You can consider how gangsters use
their status and use violence to inject fear into their victims,
into this community, and how they aid and abet each other in
committing these crimes as a group.”
“And isn‟t it somewhat ironic--it‟s not ironic, they stop
at the place where this all begins, the 29th Street Crip gang
territory, 29th Street Crip gang territory, this apartment
complex off of 29th Street. Does that mean--when I say that
does that mean that every citizen who lives in that apartment
complex is a 29th Street gang member? No, no. I can‟t imagine
what life is like for the people that live there that aren‟t.
Walking on eggshells.”
Kidd also points out that the prosecutor engaged in an in-
depth discussion of Merritt‟s tattoos and gang photos and made a
point of mentioning that Griffin was in possession of a cell
phone with a screen displaying “29th Street Crip Mafia.” The
prosecutor further argued: “This is a world of power, violence
and dominence [sic]. They can‟t let the slightest of slights go

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unchallenged, and respect demands retaliation. [¶] Mr. Tyler
then incited the group to go over there and to rob and smoke
that guy, and that‟s what they did.”
Kidd argues that urging the jury to convict him based on
bad character and unsavory associations violates due process.
However, none of the foregoing involved urging the jury to
convict based solely on Kidd‟s status as a gang member or
associate. As discussed earlier, all of the foregoing merely
provided the backdrop for the crimes alleged in this matter. It
explained what motivated the defendants to act as a group and
retaliate for the slight of being verbally disrespected. There
was no misconduct.
C
Sentencing on Enhancement
Kidd contends the trial court imposed a determinate
enhancement on count three, the aggravated kidnapping, of 10
years, but the abstract of judgment reflects an indeterminate
term of 10 years to life. The People concede error.
The Reporter‟s Transcript indicates the court imposed a
determinate term of 10 years on the firearm use enhancement for
the kidnapping charge. This is the term prescribed under
section 186.22, subdivisions (b) and (e)(1), where a firearm is
used in connection with an offense but not fired. However, the
abstract of judgment lists a term of “10 to life” for the
enhancement. We shall direct that the abstract be corrected.

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D
Determinate Sentencing
The abstract contains another error not initially
identified by the parties. On the burglary charge, Kidd
received a one-third middle term of one year four months and a
one-third enhancement. On the firearm possession charge, he
received a consecutive, one-third middle term of eight months.
On the gang charge and possession of ammunition charge, he
received stayed, one-third middle terms of eight months. On all
other charges, Kidd received indeterminate terms.
Section 1170.1, subdivision (a), reads: “Except as
otherwise provided by law, and subject to Section 654, when any
person is convicted of two or more felonies . . . and a
consecutive term of imprisonment is imposed . . . , the
aggregate term of imprisonment for all these convictions shall
be the sum of the principal term, the subordinate term, and any
additional term imposed for applicable enhancements . . . . The
principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes,
including any term imposed for applicable specific enhancements.
The subordinate term for each consecutive offense shall consist
of one-third of the middle term of imprisonment prescribed for
each other felony conviction for which a consecutive term of
imprisonment is imposed . . . .”
The trial court did not impose a principal term on Kidd.
We requested supplemental briefing on the question of whether

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this was error. Both Kidd and the People submitted briefs
acknowledging the error and requesting a remand for
resentencing. We shall do so.
DISPOSITION
Knorr‟s conviction on count one is reversed. The gang
enhancement on count two is reduced from 10 years to five for
all defendants. The $1,000 fines imposed on counts four and
five pursuant to section 667.6 are stricken as to both Merritt
and Tyler. The determinate terms on Kidd‟s sentence for counts
two, six, eleven and twelve are reversed, and Merritt‟s entire
sentence is reversed. In all other respects, the judgments and
sentences are affirmed.
The matter is remanded to the trial court with directions
to resentence Kidd on counts two, six, eleven and twelve and to
resentence Merritt to an overall term of imprisonment that
provides her a meaningful opportunity for parole during her
lifetime. The trial court is further directed to prepare
corrected abstracts of judgment to reflect the foregoing and to
reflect that the section 12022.53 enhancement on count seven is
for subdivisions (d) and (e)(1) and to forward copies of the
amended abstracts to the Department of Corrections and
Rehabilitation.
HULL , Acting P. J.
We concur:
ROBIE , J.
MAURO , J.

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