Filed 9/22/26 P. v. Berg CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, A172971
v. (Sonoma County
EVAN DAVID THOMAS, Super. Ct. No. CR0587-1)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A172861
v. (Sonoma County
JEFFREY JOHN BERG, Super. Ct. No. CR0587-2)
Defendant and Appellant.
A jury found defendants Evan David Thomas and Jeffrey John Berg
guilty of felony assault and found each defendant personally inflicted great
bodily injury upon the victim, who, like defendants at the time, was an
inmate in the Sonoma County jail.
In these consolidated appeals, defendants contend (1) the trial court
erred in admitting unredacted video from a responding correctional officer’s
body-worn camera and (2) the prosecutor erred in commenting that jurors
were not allowed to consider things outside the evidence at trial and that the
1
jurors could not speculate about why the victim did not testify. Berg also
seeks correction of a minute order and abstract of judgment, and the Attorney
General points out that Thomas received an unauthorized sentence.
We will reverse Thomas’s sentence and remand for resentencing and
otherwise affirm.1
FACTS AND PROCEDURAL BACKGROUND
By joint information, the Sonoma County District Attorney charged
Thomas and Berg with assaulting Angelo M. by means likely to produce great
bodily injury (Pen. Code,2 § 245, subd. (a)(4)) and alleged defendants
personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Numerous
aggravating circumstances were also alleged.3
Defendants were tried together.
The Prosecution’s Case
In July 2024, Thomas, Berg, and Angelo were inmates in the G module
of the Sonoma County Main Adult Detention Facility (Sonoma county jail). G
module has two tiers of cells with a dayroom in the open area of the lower
level; there are two sets of stairs connecting the lower level to the upper tier.
Angelo, Thomas, and Berg were all housed on the upper tier. Angelo was in
cell 58, the last cell at the end of a hallway at one end of the upper tier.
1 During the pendency of this appeal, Berg’s appellate counsel filed a
petition for habeas corpus relief in this court. We deny the habeas petition
(A176315) by separate order filed this day.
2 Undesignated statutory references are to the Penal Code.
3 Defendants were also charged with battery with infliction of serious
bodily injury (§ 243, subd. (d)), but this charge was dismissed on the People’s
motion.
2
Thomas and Berg were cellmates in cell 28, on the other side of the upper
tier.4
On the afternoon of July 19, 2024, correctional deputy Iturbe was the
only officer working in G module. Around 2:00 p.m., the inmates from the
upper tier were on “out-of-cell activity,” a time when inmates are permitted to
leave their cells, and “they can shower, watch TV, exercise.” Iturbe was
conducting a round on the lower level when he “noticed that the module went
quiet,” which was unusual because “it gets pretty loud” during out-of-cell
activity time. Iturbe went to the dayroom to investigate why it was so quiet
and activated his body-worn camera.
From the dayroom, Iturbe “looked up at the top tier, near Cell 58”—
Angelo’s cell—and “saw two white males assaulting another.” Iturbe told the
men to stop and told the rest of the unit to “lock down,” which, he explained
at trial, basically meant he “told everyone to go back to their cells.” Once
additional jail staff arrived at the module, Iturbe went up the stairs to Angelo
on the upper tier. At the top of the stairs, Iturbe saw the two men who had
been assaulting Angelo; they were standing near cell 51 and cell 50, facing
the wall with their hands behind their backs. At the time, Iturbe did not
know who the two men were, but at trial, he identified Thomas and Berg as
the men he saw assaulting Angelo and then standing at the top of the stairs
near cells 51 and 50.
A video clip from Iturbe’s body-worn camera was played for the jury
and received in evidence. The footage shows two men approach another man
4 Describing the locations of the cells, a correctional officer testified
that, “if you think of the top tier as a horseshoe shape,” Angelo’s cell and
defendants’ cell were on opposite sides of the horseshoe. Around 80 people
were housed in G module, about 50 of whom had cells on the upper tier.
3
at the dead end of the hallway near cell 58 on the upper tier; the two men
appear to push the man to the floor, bend or crouch over him, and then punch
or strike him repeatedly. Iturbe yells, “Hey break it up. Everyone lock
down,” at which point, the two assailants stand up and slowly walk away
from the man they attacked. The view shifts momentarily to the lower level
and when the view returns to the upper tier, two men who appear to be the
assailants walk by the top of the stairs; these two men stop, turn to face the
wall, and put their hands behind their backs. As Iturbe approaches Angelo
lying on the ground, Angelo’s legs and torso can be seen shaking, and a
deputy can be heard reporting “an apparent seizure.”
Correctional deputy Auch was working in the booking area of the
Sonoma county jail when he was alerted to an incident in G module. He
activated his body-worn camera and responded to the module immediately.
Auch entered G module and went through the lower level toward the stairs
closest to cell 58. He saw Thomas and Berg walking away from the area of
cell 58 toward the stairs. (Auch was already familiar with Thomas and Berg
prior to this incident.) As Auch walked toward cell 58, he observed Thomas
and Berg at the top of the stairs facing the wall with their hands behind their
backs.
When Auch reached cell 58, he found Angelo on the ground in a pool of
blood. Angelo “began shaking and had what appeared to be a seizure,” and
“when he was not seizing, he was moaning and groaning, crying out in pain.”
Emergency medics from the jail arrived, and “[t]raditional EMS service
arrived later on” and took Angelo by ambulance to the hospital. While
officers and medics attended to him as he lay on the floor near his cell, Angelo
appeared to have two or three more seizures and he “appeared [to] . . . los[e]
consciousness at one point during the incident.”
4
Correctional Deputy Valerio also responded to the report of an incident
in G module. When he arrived at the module, he “heard some commotion and
some screaming from the top tier, on the left side,” and he headed toward the
noise near cell 58. At the top of the stairs, Valerio passed Thomas and Berg
(both of whom he was already familiar with); they were standing between
cells 51 and 50, facing the wall with their hands behind their backs. As he
passed them, Valerio noticed that Thomas’s hands were shaking as if “from a
huge adrenaline rush,” and there was a substance that looked like blood on
his hands.
Deputy Sheriff Durrett contacted Thomas and Berg about two hours
after the incident. She observed Thomas’s hands and noted some swelling
near his right pinky finger and red marks along his knuckles. She did not
see any defensive wounds on any exposed part of his body. (She did not look
under his clothes.) Durrett also looked at Berg’s hands and noted his right
hand had redness along his knuckles. It appeared “there was a bruise
forming” on the knuckle of his middle finger. Durrett did not see any
defensive wounds on Berg either.
Medical records from Providence Santa Rosa Memorial Hospital
showed that Angelo was admitted to the hospital on July 19, 2024, and
discharged the next day. The records showed Angelo’s “[f]inal [d]iagnoses”
included “[f]racture of nasal bones, initial encounter for closed fracture,”
“[c]ontusion of unspecified part of head, initial encounter,” “[o]ther symptoms
and signs involving the musculoskeletal system,” “[p]ain in right hand,” and
“[p]ain” in both shoulders.
Footage from Auch’s Body-Worn Camera
In addition to the officers’ testimony, video from Iturbe’s body-worn
camera, and the hospital record, a 28-minute video clip from Auch’s body-
5
worn camera was played for the jury and received in evidence. The footage
begins with Auch’s view as he enters G module and quickly moves through
the lower level, up the stairs, and down the hallway to Angelo near cell 58.
The footage ends with Auch still near cell 58 as EMS personnel work on
moving and securing Angelo to a backboard in preparation for carrying him
to an ambulance. Because defendants challenge the admission of certain
parts of this unredacted video on various grounds, we describe the evidence
in some detail.
Early in the footage, Angelo can be seen with blood all over his right
hand and large splatters of blood on his sweatshirt. His nose and mouth are
covered in blood, and there is blood on the floor under his head. Angelo cries
and moans in apparent pain, his breathing sounds labored, and at least six
officers wearing gloves attend to him. Around four minutes in, someone asks,
“was he involved in a fight?” and Auch responds, “He’s the victim.” A few
seconds later, Auch states, “He’s seizing again,” and Angelo’s body can be
seen convulsing for about 20 seconds as jail medical personnel arrive. Angelo
cries out in apparent pain as jail medical personnel try and fail to place a
collar around his neck. Around seven minutes in, a jail medic wipes some of
the blood off Angelo’s face and states that his airway is clear. Medical
personnel ask to look in Angelo’s eyes and tell him, “Keep breathin’ man,
you’re okay. We got you.” Auch addresses Angelo, “This is Auch.” “[W]e’ve
helped you out before through, through stuff like this okay. We’re gonna take
care of you, alright?”
More than eight minutes in, Angelo says, “What, what happened to
me?” and Auch responds, “I’m not sure.” Angelo says, “Who did this?” and
Auch responds, “I don’t know.” Angelo is still lying on the floor covered in
blood; one medic supports his head, and another nurse holds his shoulder and
6
back. Around the nine-minute mark, Auch asks, “. . . do you remember
anything?” and Angelo responds, “Got jumped.” Auch asks if Angelo saw
anybody, and Angelo responds, “I don’t remember.” Angelo states, “I was
just, came upstairs for my cup in the bedroom” (i.e., cell 58), “[c]ame out and
got attacked.” He continues that he “[n]ever ever have had issues” but
“[s]omeone said I snitched just recently or something.” A medic then cuts the
back of Angelo’s sweatshirt off to check for spinal injuries. Angelo says, “My
nose is killin’ me,” and a medic says, “Yeah. Looks like it’s probably
broke[n].” Around 12 minutes in, Angelo becomes nonresponsive and the
nurse at his back begins tapping his chest and says, “Hey, talk with us. Do
you know where you are? Angelo? Angelo? You need to talk with us as
much as you can, alright? Try to answer our questions.” In the 14th minute,
Angelo inhales sharply and appears to cough blood. In the 15th minute,
Angelo moans and says, “I’m in so much pain.” The nurse tells him, “Okay.
Unfortunately, you are feeling this pain right now is a good sign, okay?”
Angelo continues crying.
At around the 17-minute mark, Auch tells Angelo that “EMS is here”
and, “They’re here to take care of ya.” Angelo responds, “[I j]ust wanna be
safe. Ah what the fuck [unintelligible].” Auch tells Angelo he “want[s] to
make sure we get to the bottom of this.” Angelo says, “I know what’s up.”
Auch says to Angelo, “Okay. Are you able to give me any information? That
way I can make sure things get handled.” Angelo responds, “Later.” Auch
says, “Later? Once we get outta here I’ll keep talkin’ to you, okay? Once we
get rollin.’ I gotcha.” Angelo continues, “I don’t know what’s goin’ on I mean,
ah someone said I told or somethin’ I don’t know [unintelligible],” “it’s
bullshit,” “Absolute lie,” and, “Fuckin’ lie. I never had issues in my life.”
7
Around 18 minutes in, Angelo says, “What the fuck is happening?”
Auch responds that he does not know and confirms with Angelo that he
(Angelo) did not see who attacked him. Auch asks if Angelo remembers who
accused him of snitching, and Angelo responds, “I don’t want to talk.”
Angelo is still lying on the floor with the nurse kneeling behind him
when EMS personnel arrive at the scene. In the 20th minute, an EMS medic
asks Angelo on a scale of one to 10 how much pain he is in “right now.”
Angelo responds, “Ten,” and then, “Twelve.” EMS personnel put a collar on
his neck and move him to a backboard. Angelo yells, groans, and cries, “Ow,
ow,” at various times. Around 25 minutes in, Angelo is on the backboard, and
he says, “Can’t breathe,” “Blood.” EMS personnel tilt the backboard, and
Angelo appears to gag on his own blood and then cough and cry. At least five
people can be seen working on securing Angelo to the backboard. Angelo
says, “My fuckin’ nose is killin’ me. Oh my god,” and an EMS medic tells him
they’re going to “suction and keep as much of it out. It’s gonna be
uncomfortable.” Angelo cries, “Ow, ow, ow,” as personnel continue to work on
strapping him to the board. At the end of the video, Angelo is strapped to the
backboard on the floor, and he can be heard crying and groaning.
Defense
Neither defendant called any witnesses, and Thomas did not present
any evidence. Berg presented evidence of Angelo’s criminal history. In 2017,
Angelo pleaded no contest to felony grand theft; in 2018, he pleaded no
contest to making or passing a fictitious or altered check, a misdemeanor; in
2022, he pleaded no contest to felony receiving stolen property, motor vehicle;
in 2024, he pleaded no contest to misdemeanor petty theft.
8
Verdict and Sentence
The jury found Thomas and Berg guilty of assault by means likely to
produce great bodily injury (§ 245, subd. (a)(4)) and found true the
enhancement allegation that each defendant personally inflicted great bodily
injury upon Angelo (§ 12022.7, subd. (a)). The jury also found true the
aggravating circumstance allegation that the crime involved great violence,
great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness or callousness. (Cal. Rules of Court, rule 4.421(a)(1).)
In a subsequent court trial, the trial court found various aggravating
factors related to the defendants to be true. As to both defendants, the court
found their prior adult convictions or sustained petitions in juvenile
delinquency proceedings were numerous or of increasing seriousness (Cal.
Rules of Court, rule 4.421(b)(2)); they served a prior term in prison or county
jail under section 1170, subdivision (h) (id., rule 4.421(b)(3)); and their prior
performance on probation, mandatory supervision, postrelease community
supervision, or parole was unsatisfactory (id., rule 4.421(b)(5)). As to
Thomas, the court further found that he was on probation, mandatory
supervision, postrelease community supervision, or parole when the crime
was committed (id., rule 4.421(b)(4)).
For Thomas, the trial court imposed the middle term of three years for
the assault by means likely to cause great bodily injury, plus a consecutive
three years for the great bodily injury enhancement. The court also imposed
one-third middle terms of eight months each for four counts in other criminal
matters for an aggregate sentence of eight years, eight months.
For Berg, the trial court imposed the low term of two years for the
assault, plus three years for the enhancement. The court also imposed one-
9
third the middle term of eight months for a count in another matter for an
aggregate sentence of five years, eight months.
DISCUSSION
A. Admission of Video from Auch’s Body-Worn Camera
Thomas challenges the admission of the unredacted video from Auch’s
body-worn camera. He acknowledges that portions of the video showing
“[Angelo]’s initial statements were appropriately admitted as spontaneous
utterances or present sense impressions.” But he contends the trial court
erred in admitting the entire video “without redacting inadmissible content.”
Thomas raises three claims regarding different aspects of the footage:
(1) admission of some of Angelo’s statements violated the Sixth Amendment
right to confrontation under Crawford v. Washington (2004) 541 U.S. 36
(Crawford)); (2) some of the statements by jail deputies were improperly
admitted; and (3) the trial court should not have admitted the entire video
under the considerations of Evidence Code section 352. Berg joins Thomas’s
appellate claims. We find no prejudicial error.
1. Procedural Background
In pretrial motions in limine, the prosecutor sought admission of the
video from Auch’s body-worn camera, arguing Angelo’s statements made
“while under the strain of the assault and its aftermath” were admissible
under Evidence Code sections 1240 (spontaneous statements) and 1250
(statements of existing mental or physical state).5 The prosecutor argued
5 Evidence Code section 1240 provides: “Evidence of a statement is not
made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to
narrate, describe, or explain an act, condition, or event perceived by the
declarant; and [¶] (b) Was made spontaneously while the declarant was
under the stress of excitement caused by such perception.”
10
there was no confrontation clause issue given the circumstances that Angelo
was lying on the ground “experiencing multiple seizures, actively bleeding, in
immense pain, and clearly in distress” and the deputy’s primary purpose in
questioning Angelo “was to actively a[ss]ess an emergency situation and
figure out what needed to be done.”
At a hearing on motions in limine, Berg’s attorney objected to “a
substantial portion of the recording,” arguing the video contained hearsay not
covered by the spontaneous-statements exception to the hearsay rule, and “a
fair amount of this is cumulative” and should be excluded under Evidence
Code section 352. Thomas’s attorney argued evidence of Angelo’s statements
“presents a significant Crawford issue” because the prosecution was not going
to call Angelo as a witness at trial.
The trial court ruled the video footage was admissible in its entirety.
The court found there was an “ongoing medical emergency,” and the evidence
“meet[s] the criteria of 1240 as a statement that indicates inherent
trustworthiness based on the spontaneousness and stress and excitement of
the event.” It observed, “[Angelo] is clearly in pain. He is clearly suffering.
He’s responding to questions, mostly about his state of mind.” The court
determined Angelo’s statements were not “testimonial in nature,” and
Evidence Code section 1250 provides in relevant part: “Subject to
Section 1252 [providing a statement “made under circumstances such as to
indicate its lack of trustworthiness” is not admissible], 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.
11
consequently it did “not see that there’s any Sixth Amendment violation.”
Finally, considering Berg’s objection under Evidence Code section 352, the
court found the video in its entirety was “more probative than prejudicial.”
Later during trial, the prosecutor proposed admonishing the jury that
it could consider Angelo’s statements for the truth of the matters asserted but
statements by jail and medical personnel could “only be considered to the
extent that they provide context to any statements from [Angelo]” and not
“for the truth.”6 The trial court agreed to give the admonition, and neither
defense attorney objected to the proposed language. Before the video footage
was played during Auch’s testimony, the court told the jury: “[L]et me . . .
advise you of the following. On the video that is contained in People’s 2
[footage from Auch’s body-worn camera], you may consider the statements of
[Angelo] for their truth. [¶] Statements by either jail or medical personnel
may only be considered to the extent they provide context to these statements
by [Angelo]. They cannot be considered for their truth or any other purpose.”
2. Angelo’s Statements
Thomas argues that Angelo’s statements that he “[g]ot jumped,” that
someone said he “snitched,” and that he would talk to Auch later should have
been excluded because they were testimonial statements barred by the
confrontation clause of the Sixth Amendment. We disagree.
a. The Confrontation Clause Applies to Testimonial
Statements Only
In Crawford, supra, 541 U.S. 36, the Supreme Court held the
confrontation clause of the Sixth Amendment “bars ‘admission of testimonial
6 It appears that after the trial court ruled the video was admissible in
its entirety, the prosecutor may have had second thoughts about whether the
statements made by individuals other than Angelo were admissible under the
exceptions to the hearsay rule of Evidence Code sections 1240 and 1250.
12
statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for cross-
examination.’ ” (Davis v. Washington (2006) 547 U.S. 813, 821, italics added.)
“It is the testimonial character of the statement that separates it from other
hearsay that, while subject to traditional limitations upon hearsay evidence,
is not subject to the Confrontation Clause.” (Ibid, italics added.)
“Generally speaking, a declarant’s hearsay statement is testimonial if
made ‘with a primary purpose of creating an out-of-court substitute for trial
testimony.’ ” (People v. Fayed (2020) 9 Cal.5th 147, 168.) “Testimonial
statements are those made primarily to memorialize facts relating to past
criminal activity, which could be used like trial testimony. Nontestimonial
statements are those whose primary purpose is to deal with an ongoing
emergency or some other purpose unrelated to preserving facts for later use
at trial.” (People v. Sanchez (2016) 63 Cal.4th 665, 689.) In addition, “to be
testimonial the out-of-court statement must have been made with some
degree of formality or solemnity.” (People v. Lopez (2012) 55 Cal.4th 569,
581.) Our high court has observed that “[i]nquiries that are conducted in a
disorganized way and in turbulent circumstances are distinguishable from”
more formal settings such as interviews at a police station or the preparation
of an affidavit. (People v. Blacksher (2011) 52 Cal.4th 769, 815.)
For example, “a 911 call made during the course of an emergency
situation is ordinarily made for the primary nontestimonial purpose of
alerting the police about the situation and to provide information germane to
dealing with the emergency.” (People v. Gann (2011) 193 Cal.App.4th 994,
1008 [citing cases].) In Gann, the Court of Appeal held that statements by an
apparent victim, Hansen, to an officer “at the scene of the crime, shortly after
[Hansen’s] 911 call” were nontestimonial where the officer “was primarily
13
concerned with determining what had happened and whether Hansen had
any information that could help police find the man dressed in black” who
had just shot and killed Hansen’s step-father. (Id. at pp. 1008–1009.)
Hansen spoke to the officer while she “was sitting in an ambulance at the
scene,” and the court noted the conversation “was not structured or formal.”
(Id. at pp. 1002, 1009.)
In Michigan v. Bryant (2011) 562 U.S. 344, 349, police officers
responding to a report of a shooting found the victim “lying on the ground
next to his car in a gas station parking lot”; he “had a gunshot wound to his
abdomen, appeared to be in great pain, and spoke with difficulty.” “The
police asked him ‘what had happened, who had shot him, and where the
shooting had occurred.’ ” (Ibid.) The Supreme Court held “that the
circumstances of the interaction between [the victim] and the police
objectively indicate that the ‘primary purpose of the interrogation’ was ‘to
enable police assistance to meet an ongoing emergency,’ [and, t]herefore, [the
victim]’s identification and description of the shooter and the location of the
shooting were not testimonial statements, and their admission at [the
defendant]’s trial did not violate the Confrontation Clause.” (Ibid.)
Discussing “the relevance of a victim’s severe injuries to the primary
purpose inquiry,” the Supreme Court explained, “The medical condition of the
victim is important to the primary purpose inquiry to the extent that it sheds
light on the ability of the victim to have any purpose at all in responding to
police questions and on the likelihood that any purpose formed would
necessarily be a testimonial one. The victim’s medical state also provides
important context for first responders to judge the existence and magnitude
of a continuing threat to the victim, themselves, and the public.” (Michigan
v. Bryant, supra, 562 U.S. at pp. 364-365.)
14
b. Angelo’s Statements Were Not Testimonial
Thomas concedes that “the recording started as an ongoing medical
emergency and outside of the testimonial context,” but he argues, “after the
medics arrived and began attending to [Angelo], Deputy Auch’s questioning
had a primarily investigative purpose,” and “[Angelo]’s measured answers
reflect that change in dynamic.” Thomas claims there was a shift in “[t]he
tone and nature of the dialogue” about nine minutes into the video when
Auch asks if Angelo remembered anything.
On our independent review (People v. Ramirez Ruiz (2020) 56
Cal.App.5th 809, 825), we disagree with Thomas’s theory that there was a
shift in tone such that Angelo’s statements to Auch became testimonial nine
minutes into their interaction. Throughout the 28-minute video, Angelo
appears to be in great pain; at times his body convulses, he yells and sobs, he
complains of difficulty breathing, and 25 minutes in, he appears to gag on his
own blood. Michigan v. Bryant illustrates that when a victim of violence is in
great pain at the scene of the crime, his answers to police questions such as
“ ‘what . . . happened’ ” and “ ‘who’ ” did this are not necessarily testimonial.
(562 U.S. at p. 349; see also People v. Thomas (2011) 51 Cal.4th 449, 492, 497
[where a deputy responding to a request for assistance found a jail inmate
“with his throat slashed” and “asked what happened,” the response was not
testimonial; the purpose of the “simple question [was] to determine what had
occurred so [the deputy] could determine what needed to be done to address
the situation”].)
Here, we conclude Angelo’s medical condition and the circumstances of
his interactions with Auch on the jail floor establish that his statements were
not testimonial. Angelo’s “physical distress suggested he did not give his
statement[s] with the primary purpose of establishing or proving past events
15
potentially relevant to later criminal prosecution,” “ ‘the questioning . . .
occurred in an exposed, public area, prior to the arrival of emergency medical
services,[7] and in a disorganized fashion’ ” “and the questions [Auch] asked
‘were the exact type of questions necessary to allow the police “ ‘to assess the
situation, the threat to their own safety, and possible danger to the potential
victim.’ ” ’ ” (People v. Ramirez Ruiz, supra, 56 Cal.App.5th at p. 824.)
Further, Angelo did not make his statements “under circumstances that
imparted, to some degree, the formality and solemnity characteristic of
testimony.” (People v. Cage (2007) 40 Cal.4th 965, 984.)
We are not persuaded by Thomas’s argument that there was no ongoing
emergency because “the jail module was a secure environment” and “the
inmates had been ‘locked down.’ ” As the Attorney General points out,
unknown violent inmates could still have presented potential imminent
danger to other inmates or jail personnel. We also find there was an ongoing
medical emergency based on Angelo’s condition.
In sum, we conclude all of Angelo’s statements in the 28-minute video—
including that he was “jumped,” that there was a rumor he had “snitched just
recently,” and that he would talk to Auch later—were nontestimonial.
Accordingly, the admission of Angelo’s statements did not violate the
confrontation clause.
3. Deputies’ Statements
As we have described, before the video from Auch’s body-worn camera
was played for the jury, the trial court instructed that only Angelo’s
statements could be considered for the truth of the matter asserted.
7 While jail medics can be seen about four minutes into the video, EMS
personnel able to take Angelo to the hospital do not appear at the scene until
more than 18 minutes have passed.
16
“Statements by either jail or medical personnel [could] only be considered to
the extent they provide context to these statements by [Angelo]” and could
not “be considered for their truth or any other purpose.”8
Thomas does not dispute the propriety of this admonition. But he
contends some of the deputies’ statements should have been redacted because
they did not provide context for Angelo’s statements. Specifically, he
identifies what he characterizes as Auch’s “unfounded statement that
[Angelo] was ‘the victim,’ ” “the deputies’ lay observations that [Angelo] was
‘seizing,’ ” and Auch’s “irrelevant but prejudicial comment that the officers
had helped [Angelo] out ‘through stuff like this’ before.”
Assuming without deciding that these three comments should have
been redacted, Thomas’s contention fails because he has not shown prejudice.
In his opening brief, Thomas does not address prejudice at all.9 In his reply,
he attempts to show prejudice arguing as follows: “The extent to which
[Angelo] was a victim was for the jury to decide. In closing argument, the
prosecutor asserted, ‘the GBI analysis is not any single injury, although he
did have a broken nose. It is everything that is contained in that 28-minute
video that you can see and assess for yourself.’ . . . If the proof of great bodily
injury was the video, then the statements throughout the video
8 Later when instructing the jury, the trial court gave CALCRIM No.
303 as follows: “During the trial, certain evidence was admitted for a limited
purpose. You were read an admonition regarding this at the time the
evidence was proffered. You may consider that evidence only for that
purpose and for no other.”
9 In his opening brief, Thomas argues prejudice based on admission of
the “entirety of the recording” and claims Angelo’s “repeated statements
exclaiming that his injuries were far more serious than they actually were”
were highly prejudicial. (Italics omitted.) But he does not explain how the
officers’ statements could have prejudiced him.
17
characterizing the severity and circumstances of [Angelo]’s condition were
likely to influence the jurors’ finding on that issue.” This is not persuasive.
“[S]tate law error in admitting evidence is subject to the traditional
Watson test: The reviewing court must ask whether it is reasonably probable
the verdict would have been more favorable to the defendant absent the
error.” (People v. Partida (2005) 37 Cal.4th 428, 439.) A verdict “shall not be
set aside . . . by reason of the erroneous admission of evidence unless” a
timely and specific objection was made and “the error or errors complained of
resulted in a miscarriage of justice.” (Evid. Code, § 353, subd. (b).)
In this case, Iturbe testified he saw defendants “assaulting” Angelo; the
video from Iturbe’s body-worn camera shows two men approaching a man,
pushing him to the ground, and striking him repeatedly and, seconds later,
Angelo lying on the ground shaking at the site of the assault; Auch testified
that when he first reached Angelo near cell 58, Angelo “began shaking and
had what appeared to be a seizure,” and he appeared to have two or three
more seizures; and the footage from Auch’s body-worn camera shows Angelo’s
body convulsing. Further, the jury was instructed not to consider the
statements of jail or medical personnel for their truth. “We presume that
jurors follow the instructions provided by the court in the absence of a
showing to the contrary.” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 821.) On this record, we do not believe it is reasonably probable that
Auch’s statement that Angelo was “the victim,” a deputy’s observation that
Angelo was “seizing,” and Auch’s statement to Angelo that deputies “helped
[him] out before through, through stuff like this” made a difference in the
outcome. In other words, we cannot say it is reasonably probable the verdict
would have been more favorable to defendants had those statements been
redacted.
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4. Admission of the Entire Video
Thomas also claims the trial court erred in admitting the entire video,
arguing, “the prejudice from showing the entirety of the recording outweighed
the minimal probative value, as it focused the jurors’ attention on sympathy
towards the victim, rather than a dispassionate review of the evidence.”
(Italics omitted.)
“Evidence Code section 352 vests a trial court with discretion to
‘exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue
prejudice. . . .’ ‘A trial court’s exercise of discretion in admitting or rejecting
evidence pursuant to Evidence Code section 352 “will not be disturbed on
appeal unless there is a manifest abuse of that discretion resulting in a
miscarriage of justice.” ’ ” (People v. Thomas, supra, 51 Cal.4th at p. 485.)
“ ‘The “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues. In
applying section 352, “prejudicial” is not synonymous with “damaging.” ’ ”
(People v. Karis (1988) 46 Cal.3d 612, 638.)
Here, the prosecutor argued the “entirety of the clip” was relevant
evidence for the jury “to get a full grasp and scope of the amount of pain the
victim was in.” The severity of Angelo’s pain following the attack, in turn,
was relevant to prove defendants used force likely to produce great bodily
injury, defendants personally inflicted great bodily injury, and their crime
“involved great violence, great bodily harm, . . . or other acts disclosing a high
degree of cruelty, viciousness or callousness” as alleged by the prosecution.
(See People v. Cross (2008) 45 Cal.4th 58, 66 [“Proof that a victim’s bodily
injury is ‘great’—that is, significant or substantial within the meaning of
19
section 12022.7—is commonly established by evidence of the severity of the
victim’s physical injury, the resulting pain, or the medical care required to
treat or repair the injury.” (Italics added)].) The trial court found the video
in its entirety was “more probative than prejudicial.”
“ ‘As a rule, the prosecution in a criminal case involving charges of . . .
violent crimes is entitled to present evidence of the circumstances attending
them even if it is grim.’ ” (People v. Brasure (2008) 42 Cal.4th 1037, 1054;
e.g., People v. Caro (2019) 7 Cal.5th 463, 502 [rejecting claim that “autopsy
photos showing the victims’ wounds were so gruesome and inflammatory that
their admission was unduly prejudicial under Evidence Code section 352” and
noting courts “routinely uphold the admission of autopsy photos to establish
the placement of a victim’s wounds and clarify the testimony of prosecution
witnesses”]; People v. Streeter (2012) 54 Cal.4th 205, 236, 238 [trial court did
not abuse its discretion in admitting “a tape recording in which [the victim]
was heard screaming during the ambulance ride to the hospital”; “the
evidence ‘did no more than accurately portray the shocking nature of the
crimes’ ”].)
We see no abuse of discretion in this case. The video evidence was
relevant to prove the nature of the crime, and no showing has been made that
the evidence was so unduly prejudicial that exclusion under Evidence Code
section 352 was required as a matter of law.
5. Cumulative Prejudice
Finally, Thomas argues his claimed errors related to the admission of
the video from Auch’s body-worn camera prejudiced him when viewed
cumulatively. We have rejected his first claim that the admission of some of
Angelo’s statements violated the confrontation clause. As to his second claim,
without deciding there was error, we have found no prejudice from the failure
20
to redact three statements made by deputies. As to his third claim, we have
found the trial court did not abuse its discretion in admitting the entire 28-
minute video. Since two of the three claims lack merit and the third is
harmless regardless of merit, there is no cumulative prejudice.
B. Prosecutor Comments
Berg contends, “The prosecutor’s repeated claims that jurors could not
consider the absence of testimony from the alleged victim violated [his] right
to present a defense.” Thomas joins this argument. (Bolding and
Capitalization omitted.)
1. The Comments at Issue
Berg claims the prosecutor erred in voir dire and in her rebuttal
argument. We summarize the prosecutor’s comments with the comments
Berg takes issue with on appeal in italics.
a. Voir Dire
From the entire voir dire (which runs for more than 120 pages of
transcript), Berg focuses on a part of the questioning in which the prosecutor
asked the prospective jurors to “imagine that there is a box that’s currently
sitting on each of your laps, and it’s empty,” “and as we go through the trial
we’re gonna be putting pieces of evidence into that box.” The prosecutor
explained that “at the end of the evidence, the jurors would go back into the
deliberation room,” “take that box” and “dump it out onto the table.” ·“You’re
gonna sort through all of the evidence and look at it collectively to reach a
verdict using the law that the judge has provided you. [¶] And you’re only
allowed to use what’s in that box. You’re not allowed to have other things
outside of that box come into your consideration in reaching your verdict.”
(Italics added.) The prosecutor stated that jurors could not consider
punishment, and “things like sympathy” are “not in your box.”
21
The prosecutor told the prospective jurors there were often
“unanswered questions” and gave the example of a DUI case where at the
end of trial, jurors “might have additional questions that were never
answered,” like “what kind of alcohol did they have” and how “many drinks
specifically did they have?” ·She continued: “There might be a lot of questions
that remain but are unanswered. Okay? And when you dump that box of
evidence during deliberations, you might be tempted to speculate about what
those answers might be or to wonder what those answers might be, but that’s
something you have to kind of leave outside your consideration. [¶] Does
everyone agree that they feel like they can do that in this case?” ·(Italics
added.)
Later in voir dire, the prosecutor asked whether everyone thought
“they could reach a verdict not having heard from the victim themselves?” ·A
prospective juror asked, “literally nothing from them?” The prosecutor
responded, “Yes, let’s take it to the far extreme of it, you hear nothing at all
from the victim.” (Italics added.) A prospective juror said, “I think it’s
important to know a little bit from their point of view what happened.” And
another prospective juror said, “Yeah, in the case that they’re deceased and
like there’s no way for them to speak—I suppose it would have to be what
would be the reason for their nonsharing.” The prosecutor responded, “Okay.
And let’s say you never learn that reason, that’s one of those unanswered
questions that’s not in your box. Would that bother you? [¶] . . . Can you
leave that outside of the box when you’re deliberating? (Italics added.)
One prospective juror stated, “It would be difficult. We need to hear
from the victim.” ·Another said, “My view on it is I guess maybe there’s a
reason. I guess it’s kind of your job to prove to us facts of the case; and if
22
there’s a reason, there’s a reason.” ·This prospective juror continued, “Take
what’s in the box,” and the prosecutor responded, “Right.” ·(Italics added.)
b. Rebuttal to Defendants’ Closing Arguments
In the prosecutor’s closing argument, she referred to her box analogy,
stating, “[W]e’re going to review some of the evidence that you heard, some of
the pieces of evidence that are in that box we talked about during voir dire,
and discuss how that evidence applies to the law in this case.” (Berg does not
claim the prosecutor erred in closing argument; he claims error based on the
rebuttal only.)
In the defense closing arguments, both attorneys emphasized that
Angelo did not testify and argued the evidence that was presented failed to
prove the prosecution’s case.10 Both defense attorneys also referred to the
prosecutor’s box analogy.
Thomas’s attorney told the jury Angelo “could have provided crucial
sworn testimony to explain exactly what . . . happened, what his role was,
who was involved, and why,” and without his testimony “[t]he puzzle box is
incomplete.” He said, “We don’t know if, for example, [Angelo] attacked first
or had a weapon. We have no idea. . . . They have nobody else who can say
what happened. We’re only getting a portion of the story, and we cannot
convict on half a story.”
Thomas’s attorney argued Angelo did not suffer great bodily injury.
Conceding the hospital records showed he had a broken nose, he pointed out
“there are no medical notations letting us know that it was, in fact, broken in
this incident,” and argued: “We cannot know whether or not [Angelo] had
10 We describe the defense attorneys’ arguments to provide context for
the prosecutor’s rebuttal. Berg does not provide this context in his appellate
briefs.
23
previously fractured his nose. Maybe for being a jail informant. I don’t
know. . . . [¶] Thus, if the fight simply reopened a preexisting injury, we
cannot conclude that this fight caused substantial injury. And we cannot
know whether that’s the case without [Angelo] or some medical records or
some evidence at all to say otherwise.” He concluded, “In this case, the
state’s case relies too much on guesswork, on supposition, and a failure to
produce a key witness who matters the most in this case, [Angelo].”
Berg’s attorney argued to the jury: “The prosecution wants you to
bridge enormous gaps in their evidence. They tell you the evidence is in a
box; all the evidence you need is there. I disagree. . . . [¶] . . . [¶] Let’s start
with Angelo. . . . [H]e had a duty to come and take the stand here and in
front of you folks explain what happened and allow us to question him while
he is under penalty of perjury.” She argued: “We cannot have a fair trial
here when we cannot question the person who the state is claiming was
assaulted, who suffered great bodily injury. It is not fair to assume that
someone is telling the truth when we cannot question them about their
statements. It is not fair to assume that someone is telling the truth when
they are hiding out. He is not here.”
The prosecutor objected to the argument “[i]mplying that the victim is
hiding out,” and the trial court sustained the objection. Berg’s attorney
continued: “He is not here. We don’t know why he is (sic) here. But it was
the government’s duty to put on the evidence to prove their case. And I
submit to you she has left him out, and it says something significant about
reasonable doubt.” She also argued that Angelo did not sustain substantial
injury, stating she “expect[ed] to hear from a doctor” and asking, “why did
[the prosecutor] leave out information regarding the medical diagnoses?”
24
In rebuttal, the prosecutor responded to some of the defense arguments
as follows: “In terms of what was left out, to use [Berg’s attorney]’s phrase, I’ll
go back to our discussion during voir dire about unanswered questions. And I
told you at that point in time—and as is true in every trial—there will be
unanswered questions, because we’re trying to re-create a historical moment
using the tools that we have, and there will inevitably be unanswered
questions.
“But what your job is is to look at those elements, and if those elements
have been met, that’s all that you need to concern yourselves with. You
might have questions about why [Angelo] did not take the stand and confront
his two attackers after the experience he had.
“The government, as [Berg’s attorney] likes to call the People, myself,
we’re not trying to hide [Angelo]. He’s not here. You cannot speculate about
why he isn’t here. We covered this in voir dire. There are many reasons, and
you’re not going to know why. That’s one of those unanswered questions.”
(Italics added.)
The prosecutor also argued: “In terms of the medical records, you were
provided an excerpt of medical records, and counsel—counsel’s comments
could be interpreted as, again, why is she leaving it out? What is she trying to
hide? [¶] There are rules of evidence. The judge makes her rulings based on
those rules of evidence, the law. The judge has made various rulings. She’s in
charge of seeing that this is a fair and just trial.”11 (Italics added.)
11 Here, the prosecutor may have been addressing the fact that the one-
page hospital record was heavily redacted. During discussion of motions in
limine, the trial court commented about the proposed exhibit, “I would note
that it’s appropriately redacted. The information that remains is limited to
facts as opposed to an oral statement of observation.” “It doesn’t go to
diagnosis in any more editorial manner.”
25
2. Claims of Prosecutorial Error are Forfeited
On appeal, Berg asserts, “The prosecutor’s repeated admonition to
jurors they were not to consider why the alleged victim did not testify was
flatly contrary to the law.” (Bolding and capitalization omitted.) However,
“[a] prosecutor’s misstatements of law are generally curable by an admonition
from the court.” (People v. Centeno (2014) 60 Cal.4th 659, 674.) Here,
defendants’ attorneys made no objection to the trial court as to any of the
prosecutor’s comments that Berg now finds fault with. Defendants have thus
forfeited any claim of prosecutorial error and their “appeal is foreclosed on
that basis.” (People v. Morales (2001) 25 Cal.4th 34, 44 [“Defendant made no
objection to the prosecutor’s remarks and thus has waived his claim”]; see
People v. Centeno, supra, 60 Cal.4th at pp. 666, 674 [appellate claim that the
prosecutor misstated the reasonable doubt standard in closing argument was
forfeited by failure to object].)12
3. Claim of Ineffective Assistance of Counsel
Berg argues his attorney’s failure to object and request admonition
denied him effective assistance of counsel. (Again, Thomas joins this
appellate argument.) To succeed on this claim, Berg must show, first “ ‘that
counsel’s performance was deficient,’ ” meaning “ ‘counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment,’ ” and, second, “ ‘that the deficient
performance prejudiced the defense.’ ” (People v. Aguirre (2025) 18 Cal.5th
629, 679.)
12 While “[a]n appellate court is generally not prohibited from reaching
a question that has not been preserved for review by a party (People v.
Williams (1998) 17 Cal.4th 148, 161, fn. 6), we see no reason to do so in this
case.
26
“ ‘Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence
and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.” ’ [Citations.] When the record on direct appeal sheds
no light on why counsel failed to act in the manner challenged, defendant
must show that there was ‘ “ ‘no conceivable tactical purpose’ ” for counsel’s
act or omission. [Citations.]’ [Citation.] ‘[T]he decision facing counsel in the
midst of trial over whether to object to comments made by the prosecutor in
closing argument is a highly tactical one’ [citations], and ‘a mere failure to
object to evidence or argument seldom establishes counsel’s incompetence.’ ”
(People v. Centeno, supra, 60 Cal.4th at pp. 674–675.) “ ‘Representation does
not become deficient for failing to make meritless objections’ [citation], and
there may be valid reasons why counsel may choose not to make even a
meritorious objection [citations]. As one court has explained, ‘From a
strategic perspective, . . . many trial lawyers refrain from objecting during
closing argument to all but the most egregious misstatements by opposing
counsel on the theory that the jury may construe their objections to be a sign
of desperation or hyper-technicality.’ ” (People v. Aguirre, supra, 18 Cal.5th
at p. 707.)
Here, we conclude defendants’ attorneys did not provide deficient
representation by failing to object to the comments Berg now claims are
“contrary to the law.” (Bolding and capitalization omitted.) We see nothing
objectionable in the prosecutor’s comments in voir dire; she merely indicated
that the jury would be limited to considering the evidence presented at trial
and jurors should not speculate.13 Indeed, even Thomas acknowledges on
13 The jury was instructed in this case, “You must decide what the facts
are. It is up to all of you, and you alone, to decide what happened, based only
27
appeal that the “prosecutor’s discouragement of improper speculation during
voir dire . . . sounded benign.” As to the prosecutor’s comments in rebuttal,
defendants’ attorneys reasonably could have concluded her arguments were
unobjectionable. (See People v. Aguirre, supra, 18 Cal.5th at pp. 706, 708
[defense counsel did not provide deficient representation where “counsel
reasonably could have concluded that the [argument] by the prosecutor was
. . . unobjectionable”].) Berg now claims that the prosecutor’s remarks
effectively told the jury that it was “barred from drawing an adverse
inference from the prosecution’s unexplained failure to present the testimony
of the most obvious witness it could have been expected to produce, the
victim.”14 But defendants’ attorneys at trial reasonably could have
understood that the prosecutor was properly responding to Berg’s attorney’s
suggestion that the prosecution was hiding Angelo. The prosecutor did not
tell the jury it could not consider Angelo’s absence in assessing whether the
prosecution met its burden of proof; she stated only that the jury could not
speculate as to why Angelo did not testify.
on the evidence that has been presented to you in this trial.” (CALCRIM NO.
200, italics added.)
14 Of course, attorney “comment inviting the jury to draw a logical
inference based on the state of the evidence, including comment on the failure
to call available witnesses, is permissible.” (People v. Ford (1988) 45 Cal.3d
431, 449.) “The jury’s consideration of the absence of evidence, including the
failure to call logical witnesses, is consistent with the jury instruction to
consider only the evidence introduced at trial (CALCRIM Nos. 200, 222), the
instruction not to conduct an independent investigation of the facts
(CALCRIM No. 201), and the instruction on the presumption of innocence
and the burden of proof (CALCRIM No. 220)” (People v. Alaniz (2017) 16
Cal.App.5th 1, 7), and the jury in this case was properly given all these
instructions. As we have described, both defense attorneys commented on
the prosecution’s failure to call the victim without objection from the
prosecutor.
28
Accordingly, the claim of ineffective assistance of counsel fails.
C. Correction of Berg’s Minute Order and Abstract of Judgment
Berg notes that the minute order for March 13, 2025, and the abstract
of judgment filed March 17, 2025, correctly reflect that he had 238 days of
actual custody credit and 273 days of total credit. However, both documents
incorrectly indicate that he earned 5 days of conduct credit, rather than 35
days (i.e., 238 actual custody + 35 conduct credit = 273). He asks this court to
correct these documents.
The Attorney General responds that after Berg filed a notice of appeal
from the March 13, 2025, sentencing order (in which the court imposed a five-
year sentence), the trial court recalled the sentence and resentenced him on
May 6, 2025, imposing a materially different sentence of five years, eight
months. The Attorney General argues that this court does not have
jurisdiction to correct Berg’s sentence because Berg did not appeal from the
operative sentence, which was imposed May 6, 2025. (See Stone v. Regents of
University of California (1999) 77 Cal.App.4th 736, 743–744 [“When a
judgment has been modified, an appeal must be taken . . . from the modified
judgment if the change was material and substantial”].)
In his reply, Berg does not dispute the change to his sentence made on
May 6, 2025, was material, and he does not argue that this court has
jurisdiction to correct his actual sentence. He merely argues that the earlier
minute order and abstract of judgment from his March 13, 2025, sentencing
should be corrected to reflect the true facts. But we see no purpose in
revising documents that (1) accurately reflected the amount of total credit
Berg had at the time they were filed and (2) are not the operative sentence.
We therefore decline to order the correction.
29
D. Thomas’s Sentence
“[A] sentence is generally ‘unauthorized’ where it could not lawfully be
imposed under any circumstance in the particular case. Appellate courts are
willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at
sentencing.” (People v. Scott (1994) 9 Cal.4th 331, 354.) In this case, the
Attorney General has identified that the trial court imposed an unauthorized
sentence for Thomas.
As we have mentioned, the trial court imposed a six-year sentence for
the current crime and enhancement, and it imposed one-third middle terms
for four counts in other criminal matters. As to one of those counts, the court
stated, “[I]n Docket 8—589, there is a 12022.1 enhancement. The Court will
run two years concurrent in that matter.” However, section 12022.1,
subdivision (b), provides that “[a]ny person arrested for a secondary offense
that was alleged to have been committed while that person was released from
custody on a primary offense shall be subject to a penalty enhancement of an
additional two years, which shall be served consecutive to any other term
imposed by the court.” (Italics added.)
The trial court was not authorized to impose a concurrent term for the
section 12022.1 enhancement. Thomas does not address this issue in his
reply. We will remand to “give the trial court an opportunity to restructure
its sentencing choices in light of our conclusion that the sentence imposed”
was unauthorized. (People v. Rodriguez (2009) 47 Cal.4th 501, 509–510.)
DISPOSITION
Thomas’s sentence is reversed, and his criminal matter is remanded to
the trial court for resentencing. In all other respects, Berg’s and Thomas’s
judgments are affirmed.
30
_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P. J.
_________________________
Desautels, J.
A172971, People v. Thomas; A172861, People v. Berg
31