Filed 6/29/26 P. v. Caldwell CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B339972
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA105967)
v.
ISIAH EUGENE CALDWELL,
JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lauren Weis Birnstein, Judge. Reversed and remanded with directions.
Linda L. Gordon, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General,
Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant Isiah Caldwell appeals after a jury found him guilty of
conspiracy to commit assault with a firearm (Pen. Code, § 182, subd. (a)(1))1
and found true allegations that he personally used a firearm in the
commission of the offense (§ 12022.5, subd. (a)) and had a prior felony
juvenile adjudication that qualified as a strike. The trial court found true
several factors in aggravation (Cal. Rules of Court, rule 4.421)2 and sentenced
defendant to 18 years in prison.
On appeal, defendant contends insufficient evidence supports his
conspiracy conviction and the true finding on the firearm use allegation.
Defendant also contends, and the People concede, that he had the right to a
jury trial on the factors in aggravation. Finally, defendant requests this
court conduct an independent review of the materials the trial court reviewed
during an in camera hearing held pursuant to Brady v. Maryland (1963) 373
U.S. 83 (Brady) and Pitchess v. Superior Court (1974) 11 Cal.3d 531
(Pitchess).
We find that substantial evidence supports defendant’s conviction of
conspiracy to commit assault with a firearm and the true finding on the
personal firearm use allegation. We agree that defendant was entitled to a
jury trial on the factors in aggravation and that the error was prejudicial,
necessitating reversal for possible retrial on those factors. We find no abuse
of discretion in the trial court’s Brady/Pitchess rulings.
BACKGROUND
Defendant’s conviction of conspiracy stemmed from an incident on
December 1, 2020 at the Venice Beach Boardwalk that resulted in the death
of Ky Thomas, who was shot in the chest. At trial, the primary issue was the
identity of the shooter. The prosecution’s theory was that defendant was the
shooter, but the jury found defendant not guilty of Thomas’s murder.
A. Eyewitness Testimony
On December 1, 2020, Thomas and her husband, Stephen Nobles, went
to the Venice Beach Boardwalk. They were accompanied by Thomas’s sister,
Kamryn Saltus, and Saltus’s boyfriend, Demetrius Powell.
1 Unspecified section references are to the Penal Code.
2 Unspecified rule references are to the California Rules of Court.
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The two couples rented electric scooters and bicycles from Star Bike
Rentals, leaving a credit card and Saltus’s identification as a deposit. They
rode to Malibu and back, but on the return trip the scooter batteries died.
They called the phone number Star Bike Rentals had provided, but it was
disconnected. The two women took an Uber back to Star Bike Rentals,
leaving the scooters where they had died, while the men rode the bicycles
back.
Nadav Vaizman was working at Star Bike Rentals that day. Vaizman
refused to return Saltus’s credit card and identification before the scooters
were returned. The couples got angry with Vaizman, who called his manager
to ask for help. Vaizman also appeared to be texting someone.
The manager of Star Bike Rentals soon arrived and tried to calm things
down. Eventually, Saltus took her credit card and identification back. The
couples then went outside near a bench.
About three to five minutes later, a group of five or six men arrived.
One or more of the men went into Star Bike Rentals. Vaizman said, “They’re
outside – outside on the bench” or “Outside.”
The group of men then approached the two couples, who were still
outside. Saltus saw that all of the men had guns, and one of them pointed
the laser sight of a gun at her. Powell likewise saw multiple people holding
guns.
One of the men asked the couples, “Where are you from?” The couples
responded, “Nowhere. However, Powell had been a member of the Pasadena
Denver Lane Bloods (PDLB) gang in the past and had “Pasadena” tattooed on
his forearm, and Nobles had grown up in the PDLB neighborhood and had at
least one PDLB tattoo.
One of the five or six men said, “They’re not tripping.” The men started
walking away. Then, one of the men started shooting at the couples.
Witnesses heard six shots. The police recovered four .380 casings fired from
the same gun. As noted above, Thomas was killed in the shooting, which
occurred at 5:23 p.m.
Saltus told the police that the shooter was wearing a navy sweatsuit
and was five feet six inches to five feet seven inches tall. She also described a
young, scrawny person, later identified as D’Aire J., who had pointed a gun
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with a laser at her. Saltus told the police that the person who asked “where
are you from” was a man in a striped shirt who was “chubbier than the
others.”
At trial, Saltus identified defendant as the shooter and testified that he
was also the person who had asked the couples “where are you from.” Both
Powell and Nobles claimed not to remember anything about the incident,
although Nobles testified that defendant was not the shooter.
B. Investigation
Cell phone records showed that at 5:13 p.m. on the day of the shooting,
Vaizman had texted “WYA,” meaning, “where you at,” to Jonathan Singh. At
5:15 p.m., Singh called Vaizman.
Surveillance video showed that at 5:16 p.m. – within a minute of the
call, four vehicles traveled “in tandem” from Oakwood Park, in territory
claimed by the Venice Shoreline Crips (VSC) gang, to a parking lot near the
site of the shooting.
The four vehicles arrived at the parking lot at 5:21 p.m. Singh and
D’Aire J. exited from one vehicle. Defendant and another male exited from a
second vehicle. An unknown male exited from the third vehicle. After those
five males walked toward the boardwalk, a sixth, unknown male exited from
the fourth vehicle. At least two of the males could be seen carrying guns.
After the shooting, some of the males returned to the parking lot, including
defendant, who was holding his waistband in a manner suggesting he had a
firearm.
Singh subsequently made incriminating statements to an undercover
agent in jail. Singh expressed concern that the “kid” at the bike rental store
had provided information to the police. Singh stated that all of the males in
his group had been armed with firearms and that the shooting was “some
gang shit.”
Singh’s cell phone contained photos of Singh at Oakwood Park wearing
gang clothing and throwing gang signs. Defendant had tattoos indicating he
was a member of the VSC. Social media posts showed defendant in gang
attire and in the company of other members of the VSC, including at
Oakwood Park. Defendant had previously admitted being a member of VSC.
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A gang expert testified that asking “where you from” is a common gang
challenge that is typically followed by an “act of violence.”
C. Charges, Verdicts, and Sentencing
Defendant was charged with the murder of Thomas (count 1; § 187,
subd. (a)), the attempted murder of Nobles (count 2; §§ 664, 187, subd. (a)),
and conspiracy to commit assault with a firearm (count 3; §§ 182, subd. (a),
245, subd. (a)(2)). Personal firearm use allegations (§ 12022.5, subd. (a)) were
attached to counts 1, 2, and 3. Also as to all three counts, it was alleged that
a principal was armed with a firearm (§ 12022, subd. (a)(1)). It was alleged
that defendant suffered a prior juvenile adjudication that qualified as a strike
(§ 667, subds. (b)-(j), § 1170. 12) and that there were nine factors in
aggravation under Rule 4.421.
The jury found defendant not guilty of murder (count 1) and attempted
murder (count 2) but convicted him of conspiracy to commit assault with a
firearm (count 3). The jury found true the personal firearm use allegation
associated with count 3, and the strike allegation.
The trial court found true several factors in aggravation under rule
4.421 and sentenced defendant to 18 years in prison: the upper term of four
years for conspiracy, doubled to eight years pursuant to the Three Strikes
Law, with a consecutive 10-year upper term for the firearm use
enhancement.
DISCUSSION
A. Sufficiency of the Evidence: Conspiracy
Defendant contends insufficient evidence supports his conviction of
conspiracy to commit assault with a firearm. Specifically, he claims there is
no substantial evidence that he intended to agree to participate in a
conspiracy to commit assault with a firearm.
“The standard of appellate review for determining the sufficiency of the
evidence is settled. ‘“On appeal we review the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.]”’ [Citation.]” (People v. Wilson (2008) 44
Cal.4th 758, 806 (Wilson).)
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“Conspiracy ‘“is an inchoate offense, the essence of which is an
agreement to commit an unlawful act.”’ [Citation.] This crime has four
elements: (1) the existence of an agreement between at least two persons; (2)
the specific intent to agree to commit an offense; (3) the specific intent to
commit the offense that is the object of the agreement; and (4) an overt act in
furtherance of the conspiracy, which may be committed by any conspirator.
[Citations.]” (People v. Ware (2022) 14 Cal.5th 151, 163 (Ware).)
“To establish the requisite specific intent connecting an individual
defendant to the charged conspiracy, the prosecution must show that the
defendant intended to play some part in achieving the conspirator’s unlawful
ends. Put differently, ‘[t]here must be something more than “[m]ere
knowledge, approval of or acquiescence in the object or the purpose of the
conspiracy.”’ [Citations.]” (Ware, supra, 14 Cal.5th at p. 166.)
“‘Evidence is sufficient to prove a conspiracy to commit a crime “if it
supports an inference that the parties positively or tacitly came to a mutual
understanding to commit a crime. [Citation.] The existence of a conspiracy
may be inferred from the conduct, relationship, interests, and activities of the
alleged conspirators before and during the alleged conspiracy.”’ [Citations.]”
(People v. Maciel (2013) 57 Cal.4th 482, 515-516.) “[C]ommon gang
membership may be part of circumstantial evidence supporting the inference
of a conspiracy. [Citation.]” (People v. Superior Court (Quinteros) (1993) 13
Cal.App.4th 12, 20 (Quinteros).)
Here, there was substantial circumstantial evidence of defendant’s
intentional agreement to commit an assault with a firearm. About 10
minutes before the shooting, Singh communicated with Vaizman, who had
just been in a confrontation with the victims at Star Bike Rentals. Defendant
drove to the Boardwalk “in tandem” with Singh and four other men. At the
Boardwalk, defendant and the other men exited their cars and proceeded
directly to Star Bike Rentals, all armed with firearms. At least one member
of defendant’s group went inside Star Bike Rentals and was directed to the
couples outside near the bench. Defendant and the other men approached
the couples with their firearms displayed. One member of defendant’s group
issued a gang challenge, asking “Where are you from?” Defendant and Singh
were both members of the VSC gang, the victims were associated with a rival
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gang, and the crime occurred in VSC territory. (See Quinteros, supra, 13
Cal.App.4th at p. 21.) Although there is no direct evidence that defendant,
Singh, and the others discussed in advance the assault with a firearm, there
was evidence that they were together near Oakwood Park shortly before the
killing, “during which a discussion and agreement could have taken place.”
(See People v. Jurado (2006) 38 Cal.4th 72, 121.) Their subsequent conduct in
travelling together to the Boardwalk and approaching the victims, armed
with firearms, is circumstantial evidence that shows the existence of an
agreement.
Defendant asserts that the evidence supported a finding that he was
the person who said, “They’re not tripping,” and he claims this shows that he
was attempting to “diffuse the situation” and not intending to “play any role
in an assault with a firearm.” This argument overlooks the fact that one of
the people in defendant’s group had already pointed a gun with a laser at
Saltus, thereby completing an assault with a firearm. (See People v.
Hartsch (2010) 49 Cal.4th 472, 507-508 [“pointing a gun at someone in a
menacing manner” is an assault with a firearm].) Moreover, the evidence
was disputed as to whether defendant was the person who said “They’re not
tripping,” and the jury could have found that instead, defendant was the
person who issued the gang challenge by asking, “Where are you from?”
In sum, substantial evidence supports defendant’s conviction of
conspiracy to commit assault with a firearm.
B. Sufficiency of the Evidence: Personal Firearm Use
Defendant contends insufficient evidence supports the jury’s finding
that he personally used a firearm in the commission of the conspiracy to
commit assault with a firearm.
“We review the sufficiency of the evidence to support an enhancement
using the same standard we apply to a conviction. [Citation.]” (Wilson, supra,
44 Cal.4th at p. 806.) “Proof of firearm use during a felony does not require a
showing the defendant ever fired a weapon. ‘Although the use of a firearm
connotes something more than a bare potential for use, there need not be
conduct which actually produces harm but only conduct which produces a
fear of harm or force by means or display of a firearm in aiding the
commission of one of the specified felonies. . . . ‘Thus when a defendant
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deliberately shows a gun, or otherwise makes its presence known, and there
is no evidence to suggest any purpose other than intimidating the victim (or
others) so as to successfully complete the underlying offense, the jury is
entitled to find a facilitative use rather than an incidental or inadvertent
exposure. The defense may freely urge the jury not to draw such an
inference, but a failure to actually point the gun, or to issue explicit threats of
harm, does not entitle the defendant to a judicial exemption from section
12022.5[, subdivision] (a).’ [Citations.]” (Wilson, supra, 44 Cal.4th at pp.
806-807, original italics.)
Evidence of defendant’s firearm use came primarily from Powell and
Saltus. Powell testified that he remembered being “approached with guns”
by a “couple people.” He claimed not to remember if the guns were being held
inside of the people’s pockets or outside of their pockets. Saltus testified that
she saw that “all of” the men who approached had guns. The jury was
entitled to find this testimony credible and could reasonably find, based on all
the evidence, that defendant was one of the men in the group who had
approached the group while deliberately holding a gun in a manner intended
to intimidate the victims.
We reject defendant’s suggestion that a question submitted during the
jury’s deliberations on the firearm use allegation shows the jury did not
unanimously find that allegation true.3 The jury asked, “How late can we
stay today? Hypothetically, if we cannot come to an agreement on [the
firearm use allegation], what happens?” The jury noted that one juror would
be out of town starting the next day, and that another juror would be “gone”
after that. Before the trial court could respond to the question, the jury
reached its verdict on the firearm allegation. Defendant would have us
speculate that the jury may have reached its verdict because it “felt
pressured to come to a decision.” We decline to do so.
3 The jury deliberated on the firearm use allegation after returning its
verdicts on the substantive offenses, because the original verdict form for
count 3 did not include the firearm use allegation.
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C. Factors in Aggravation
Defendant contends, and the People concede, that he had the right to a
jury trial on the factors in aggravation, which the trial court found did not
need to be submitted to the jury.
Nine factors in aggravation were originally alleged, including factors
relating to the crime (rule 4.421(a)) and factors relating to defendant (rule
4.421(b)). Based on then-valid case law, the trial court determined that the
aggravating factors relating to defendant’s prior convictions did not need to
be presented to the jury.4 The trial court proceeded to find true three of those
factors: “The defendant's prior convictions as an adult or sustained petitions
in juvenile delinquency proceedings are numerous or of increasing
seriousness” (rule 4.421(b)(2); “The defendant has served a prior term in
prison or county jail under section 1170(h)” (rule 4.421(b)(3)); and “The
defendant was on probation, mandatory supervision, postrelease community
supervision, or parole when the crime was committed” (rule 4.421(b)(4)). At
the sentencing hearing, the trial court also mentioned finding true a fourth
aggravating factor: “The defendant’s prior performance on probation,
mandatory supervision, postrelease community supervision, or parole was
unsatisfactory” (rule 4.421(b)(5).
In Wiley, the Supreme Court considered the scope of the right to a jury
trial on aggravating sentencing factors and the exception to this right for a
defendant’s prior convictions. (Wiley, supra, 17 Cal.5th at 1076.) The court
recognized that, under the Sixth Amendment and section 1170, subdivision
(b), “a defendant is entitled to a jury trial on all aggravating facts, other than
the bare fact of a prior conviction and its elements, that expose the defendant
to imposition of a sentence more serious than the statutorily provided
midterm.” (Wiley, at p. 1086, fn. omitted.) The court held that this right to a
jury trial extends to the aggravating factor that a defendant’s prior
convictions were of “increasing seriousness.” (Ibid.) It also extends to the
aggravating factor that a defendant’s prior performance on probation or
parole was “unsatisfactory.” (Id. at p. 1083.) Accordingly, absent a proper
4 The trial court cited to People v. Pantaleon (2023) 89 Cal.App.5th 932,
which was later disapproved by People v. Wiley (2025) 17 Cal.5th 1069, 1086
(Wiley).
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waiver or stipulation, a defendant is “entitled to have a jury determine
whether his prior convictions were of increasing seriousness and whether he
had performed unsatisfactorily on probation, before the court c[an] rely on
those aggravating facts to find justification for an upper term sentence.”
(Id. at p. 1085.)
We apply the Chapman standard of review to determine if the error
was prejudicial. (Wiley, supra, 17 Cal.5th at p. 1087; People v. Lynch (2024)
16 Cal.5th 730, 768 (Lynch).) A defendant “is entitled to a reversal and
remand for resentencing unless, after examining the entire cause, including
the evidence as to all relevant circumstances [citation], we can conclude that
the omission of a jury trial was harmless beyond a reasonable doubt as
to every aggravating fact the trial court used to justify an upper term
sentence.” (Lynch, at p. 775.) In conducting our examination, however, we
must not “assume that the record reflects all of the evidence that would have
been presented to the jury.” (Ibid.)
In arguing prejudice, defendant focuses on the trial court’s finding that
his convictions were “numerous or of increasing seriousness” (rule
4.421(b)(2)). Respondent agrees that the lack of a jury trial on this factor
cannot be found harmless.
The evidence presented to the trial court included certified
documentation of a 2011 juvenile adjudication for robbery and attempted
robbery. The trial court also considered a certified copy of defendant’s rap
sheet. Defendant’s first adult conviction was in 2013, when he was convicted
of felony attempted grand theft and sentenced to prison; that conviction was
later reduced to a misdemeanor. In 2014, he was convicted of felony assault
and placed on probation. In 2015, he was convicted of unlawful possession of
a firearm and sentenced to prison. In 2017, he was convicted of misdemeanor
destruction of evidence. And in 2020, he was convicted of grand theft and
placed on probation.
We agree that on this record, a rational juror could find that
defendant’s juvenile adjudications and adult convictions were neither
numerous nor of increasing seriousness. While a jury could certainly find the
evidence of defendant’s one juvenile adjudication and five adult convictions to
be “numerous,” we cannot conclude, beyond a reasonable doubt, that every
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juror necessarily would have made such a finding. Similarly, defendant’s
criminal history does not necessarily “demonstrate[] a clear trend from less
serious offenses towards more serious ones.” (See Wiley, supra, 17 Cal.5th at
p. 1089.) Therefore, the trial court’s error in failing to submit the
aggravating factors to the jury cannot be found harmless.
We will remand so the People may have an opportunity to retry the
aggravating factors. (See Lynch, supra, 16 Cal.5th at p. 776.)
D. Brady/Pitchess Motion
Before trial, defendant filed a Brady/Pitchess motion that sought
information from the personnel files of 10 police officers – specifically, “prior
instances of misconduct.” The trial court granted the motion and reviewed
materials provided by the custodians of records, during two in camera
hearings.5 Defendant requests this court conduct an independent review of
the materials the trial court reviewed during those hearings.
“When a trial court concludes a defendant’s Pitchess motion shows good
cause for discovery of relevant evidence contained in a law enforcement
officer’s personnel files, the custodian of the records is obligated to bring to
the trial court all ‘potentially relevant’ documents to permit the trial court to
examine them for itself. [Citation.]” (People v. Mooc (2001) 26 Cal.4th 1216,
1228-1229.) To permit “future appellate review,” the trial court should “make
a record of what documents it examined before ruling on the Pitchess
motion.” (Id. at p. 1229.) An appellate court reviews a trial court’s disclosure
decisions for abuse of discretion. (Id. at p. 1232.)
We have reviewed the sealed transcripts of the in camera hearings.
The trial court did not abuse its discretion during its review of matters within
the police officers’ personnel files. The court properly conducted
the Pitchess hearing and prepared a sufficiently detailed record for
appellate review. The sealed personnel documents within the files, other
than the complaints disclosed, were not subject to disclosure as they were not
relevant to show officer misconduct. ( See Warrick v. Superior Court (2005)
35 Cal.4th 1011, 1019.) Likewise, the court properly found the personnel file
5 Two different judges conducted the in camera hearings.
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did not contain any evidence favorable to defendant’s guilt or punishment.
(Brady, supra, 373 U.S. at p. 87.)
DISPOSITION
The judgment is reversed, and the matter is remanded with directions
for the trial court to conduct further proceedings under section 1170,
subdivision (b).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COGLIATI, J.*
We concur:
ZUKIN, P. J.
MORI, J.
* Judge of the Santa Cruz Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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