Filed 9/23/26 P. v. Gaines CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A173003
v.
JACOBI GAINES, (Alameda County
Super. Ct. No. 20CR000975)
Defendant and Appellant.
Jacobi Gaines appeals a judgment convicting him of, among other
offenses, first degree murder, carjacking, and robbery, and sentencing him to
a total term of 64 years-and-four-months-to-life in prison. He contends that
(1) the court erred under Evidence Code section 352 by admitting unduly
prejudicial videos of him intentionally defiling the grave of a rival gang
member; and (2) his trial counsel provided ineffective assistance by failing to
object to evidence of an uncharged theft offense that bore no similarity to the
charged offenses. He also requests that the matter be remanded to allow for
correction of several sentencing errors. We find no trial error but remand for
resentencing.
BACKGROUND
The prosecution’s case against Gaines alleged that he committed a
series of thefts and robberies in December of 2019 and January of 2020,
followed by the homicide of Hassan Humphries in Oakland on January 13,
1
2020. Gaines was charged by amended information with the following
offenses alleged to have been committed on January 13, 2020: murder
(Pen. Code, 1 § 187(a)); illegal firearm possession by an adjudicated ward
(§ 29820(b)); carrying a loaded firearm in public (§ 25850(a)); and illegal
possession of a firearm by a probationer (§ 29815). Gaines was further
charged with unlawfully taking a vehicle on January 8, 2020 (§ 10851(a));
carjacking (§ 215(a)) and assault with a deadly weapon (§ 245(a)(1)) on
December 2, 2019; second degree robbery on January 8, 2020 (§ 211); and
unlawful taking of a vehicle on December 3, 2019 (§ 10851(a)). The
information also alleged sentence enhancements for personal use of a firearm
(§ 12022.5(a)) on the murder count, infliction of great bodily injury
(§ 12022.7(a)) and use of a deadly weapon (a vehicle) (§ 12022(b)(1)) on the
carjacking count, and infliction of great bodily injury (§ 12022.7(a)) on the
assault count.
At trial, the following evidence was presented regarding the charged
offenses that occurred prior to the murder. On December 2, 2019, Gaines
stole a Mercedes Benz automobile from its owner after responding to an
online advertisement and posing as a buyer. The owner was injured when he
tried to stop Gaines from driving away with the car. A second victim testified
that on December 3, 2019, Gaines stole his motorcycle after responding to an
online advertisement and posing as a buyer. A third victim testified that on
January 8, 2020, Gaines stole his grey Audi A4 Quattro automobile after
responding to an online advertisement and posing as a buyer. A fourth
victim testified that, also on January 8, 2020, Gaines stole two wristwatches
from her after responding to an online advertisement and posing as a buyer.
1 Undesignated statutory references are to the Penal Code.
2
The following evidence was presented regarding uncharged conduct
that occurred prior to the murder. On November 27, 2019, a man stole a
woman’s 2000 Mercedes Model S 430 after responding to an online
advertisement and posing as a buyer. A police investigator subpoenaed the
online ad platform and determined that the IP addresses associated with the
account used by the thief were registered to defendant’s mother. On
December 31, 2019, a man stole a woman’s purse from the backseat of her car
in a Costco parking lot as she loaded groceries into her trunk. Her stolen
driver license was recovered in Gaines’s possession after his arrest.
With respect to the murder and other offenses that occurred on
January 13, 2020, a witness testified that he was sitting in his pickup truck
on the 1400 block of 48th Avenue in Oakland when he heard a gunshot,
looked up, saw a man fall and another man wearing a “two-toned,” red
and black jacket flee in a grey Audi. The man who was shot, later identified
as Hassan Humphries, died from several gunshot wounds to his head and
chest.
Surveillance videos collected from the crime scene showed a silver or
grey Audi A4 with tinted windows drive onto 48th Avenue from International
Boulevard shortly before the homicide took place. The video then showed a
person “wearing a red, two-toned jacket” walking toward the parked Audi as
another person lay on the sidewalk. A police detective identified the car in
the video as a “typhoon gray” 2012 Audi A4, with “subtly tinted windows” and
a black front grille, and the owner of the Audi stolen on January 8 told the
officer he believed it was his car.
Gaines was arrested on January 16 at an apartment in Oakland.
Officers recovered a Springfield Armory XD9 semiautomatic pistol during his
arrest. A criminalist testified that ballistics tests indicated that cartridge
3
casings found at the homicide scene were fired from the handgun officers
recovered during Gaines’s arrest. Police officers also recovered a “red, kind of
two-toned jacket” in the bedroom of the apartment.
On the same day Gaines was arrested, the police conducted a search of
his mother’s house and seized several items that appeared to be associated
with Gaines and that officers testified contained references to Oakland’s ENT
gang, including terms associated with the gang, such as “300 Boys,” “Stubby,”
“Ghost town,” and “Money Team.”
From several phones that were seized that day, as well as a phone
number provided by the owner of the Audi, the police obtained call detail
records and evidence from Gaines’s social media records, comprised of
postings to an Instagram account attributed to Gaines. Call detail records
from a mobile phone used by Gaines showed that the phone was near the
area of the homicide around the time it took place.
The following evidence from Gaines’s Instagram records was admitted
at trial. In September of 2019, Gaines posted a video containing the
statements “gang members only” and a number of hand signals.
On September 25, 2019, Gaines posted a photo, referring to his
association with the ENT gang, that stated “TOO MUCH GOING ON
WATCH THE SNAKES IN THE CIRCLE I’M 300 TILL THEY PUT MY
DICK IN THE DIRT.”
On December 24, 2019, Gaines posted four videos that show him
walking through a cemetery searching for a grave, then urinating on the
grave and kicking over flowers, candles, and other memorial items left by
mourners. The engraving on the headstone shows that the person had just
turned seventeen when he died, approximately two and a half years before
4
Gaines posted the video. On the video in which he urinates on the grave,
Gaines superimposed the text, “Happy Holidays.”
On December 25, 2019, in an Instagram post, Gaines wrote, “Nobody
wasn’t saying nun about disrespectful wen them niggas made that song so
fuck anybody who got a problem about my nigga pissin!! You’ll just don’t like
that shit yeah we disrespectfull to don’t do it if you’ll dont want niggas doing
it on bro!!”
On December 26, 2019, Gaines received a warning text on Instagram
that “[t]hem case niggas looking for u.” In a post the same day, Gaines wrote,
“They Talking Bout How They Gone Kill Me Like Ima Let Niggas,” and
“Blood said it best.”
On December 29, 2019, Gaines messaged someone on Instagram that
“niggas posting old ass videos of me getting jumped for clout.” In an
Instagram post that day, Gaines wrote, “You niggas hella funny and scary it
take 2 niggas to try to whoop me and I still ain’t go to the ground stop putting
dirt on my name and tryna get clout off this old ass video take a trip let’s go
on a field trip.”
On January 12, 2020, Gaines posted a video on his Instagram account
that showed him “holding a black handgun” and pointing it at the camera.
On the day of the murder, Gaines posted a video on Instagram in which
he was wearing a “red . . . two-toned jacket, with [a] black front.”
On January 15, Gaines posted an emoji with the “universal symbol for
being silent” (i.e., index finger over mouth) with “a rap song playing in the
background.” The song’s lyrics, as paraphrased by the police detective,
included “Pistol pops off. I hit him first in the chest and then in the head.”
The detective noted that the victim had been shot in the chest and the head.
5
On the same day, Gaines wrote in an Instagram post: “Kill or be killed!! Pick
in choose a fence before you play the other side.”
A police detective testified that Humphries was a member of the Case
gang and that the Case gang is a rival of the ENT gang. He testified that,
around the time of the homicide, the rivalry between ENT and Case had
escalated into “an ongoing feud” involving “a bunch of shootings” and “back
and forth between the two gangs.” Finally, he testified that another police
officer had told him that the grave Gaines desecrated in the videos belonged
to a deceased member of the Case gang.
The jury found Gaines guilty as charged except for the final count of
unlawful taking of a vehicle on December 3, 2019, which was dismissed on
the prosecutor’s motion after the jury failed to reach a verdict. The trial court
sentenced Gaines to an aggregate term of 64 years-and-four-months-to-life in
state prison, consisting of an indeterminate term of 38 years-to-life for
murder and a consecutive determinate term of 26 years and four months on
the remaining offenses.
DISCUSSION
I.
Gaines contends that the trial court abused its discretion under
Evidence Code section 352, and violated his due process right to a fair trial,
by admitting the series of videos that he posted on his Instagram account of
him in the cemetery.
Evidence Code section 352 provides: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” We review a challenge to a trial court’s decision to
6
admit or exclude evidence under section 352 for abuse of discretion. (People
v. Branch (2001) 91 Cal.App.4th 274, 281–282.
Gaines acknowledges that the videos had some relevance to motive
because the grave was that of a rival gang member. He argues, however,
that “the videos were cumulative to a plethora of other gang-related evidence
supporting this theory of motive” and “were significantly more inflammatory
than the other gang-related evidence and created undue prejudice that had
nothing to do with gangs: Gaines’ intentional defilement of a human grave,
including the filmed act of urinating on the grave, violated universally-held
cultural and religious taboos that reflect our society’s veneration of
memorials, respect for the dead, empathy for survivors mourning the loss of a
loved one, and the sacrosanct status ascribed to human remains.”
Accordingly, he argues that “the admission of the grave desecration videos
created an intolerable risk of inflaming the jurors’ passions and causing one
or more juror to be so offended and viscerally repelled that they would be
incapable of deciding the case in a dispassionate manner.”
In arguing that the cemetery videos are cumulative of other motive
evidence, Gaines cites the evidence that shows that he “was a member of the
ENT gang, while the victim belonged to the Case gang; the ENT and Case
were generally known to be rival gangs, and around the time of the homicide
their rivalry had recently escalated into ‘an ongoing feud’ involving ‘a bunch
of shootings’ and ‘back and forth between the two gangs’; Gaines believed
Case gang members were looking for him in order to kill him; Gaines was
angry at recently having been ‘jumped’ and beaten by Case gang members;
and Gaines had been arguing and exchanging death threats with members of
the Case gang for several weeks before the homicide.”
7
The Attorney General disagrees that the cemetery videos are
cumulative of this other evidence and suggests that Gaines’s argument
undervalues its relevance. The Attorney General argues that the videos are
not just evidence of a general gang motive for the killing, but that they are
the pivotal moment that “precipitated the events that eventually resulted in
the murder of victim Humphries.” The Attorney General writes: “As the
prosecutor explained during closing argument, ‘urinating on the grave sets off
a backlash. And from that point, [appellant is] so focused on it and vigilant
for any perceived threats that you can see that it takes up the majority of the
posts of his Instagram. He is focused on this.’ . . . In this context, the
murder of victim Humphries ‘was an execution of a rival. This was the
defendant’s punishment because of all the back and forth, because of his
own—whatever—after peeing on his rival’s grave and just being done with
the sukkas.’ . . . In short, the video evidence itself prompted the Case gang’s
sudden outburst of hostility toward appellant, who in turn sought revenge by
killing victim Humphries.”
We disagree with Gaines’s characterization of the Attorney General’s
argument as “supposition at best.” In an Instagram post made the day after
the cemetery video, Gaines wrote: “Nobody wasn’t saying nun about
disrespectful wen them niggas made that song so fuck anybody who got a
problem about my nigga pissin!! You’ll just don’t like that shit yeah we
disrespectfull to don’t do it if you’ll dont want niggas doing it on bro!!” A
reasonable understanding of this post is that Gaines made the video of him
urinating on the opposing gang member’s grave in response to feeling
disrespected in a song made or posted by Case gang members. A few days
after he posted the cemetery video, members of the opposing gang apparently
reposted an old video of him being jumped and Gaines was told that members
8
of the Case gang were looking for him. He responded with threats of his own,
first posting to Instagram “stop putting dirt on my name and tryna get clout
off this old ass video take a trip let’s go on a field trip” and two weeks later
posting a video that showed him “holding a black handgun” and pointing it at
the camera.
The cemetery video helps explain how Gaines engaged in the “ongoing
feud” and why the Case gang members would repost the old video of him
being jumped. Without the cemetery video, the back and forth between
Gaines and the Case gang is less persuasive as a motive for the shooting.
The prosecutor was entitled to introduce the videos to provide the full
chronology and context for the murder unless the probative value of this
evidence was “ ‘substantially’ outweighed by the probability of a ‘substantial
danger’ ” of undue prejudice. (People v. Holford (2012) 203 Cal.App.4th 155,
167 [emphasizing the “sometimes overlooked words, ‘substantially’ and
‘substantial danger’ ” in Evidence Code section 352]; see also People v. Tran
(2011) 51 Cal.4th 1040, 1047 [“Evidence Code section 352 requires the
exclusion of evidence only when its probative value is substantially
outweighed by its prejudicial effect”].)
The Supreme Court has defined “undue prejudice” as that which
“uniquely tends to evoke an emotional bias against a party as an individual,
while having only slight probative value with regard to the issues.” (People v.
Crittenden (1994) 9 Cal.4th 83, 134; People v. Holford, supra, 203 Cal.App.4th
at p. 167 [“ ‘ “ ‘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 other words, evidence should be excluded as unduly
prejudicial when it is of such nature as to inflame the emotions of the jury,
9
motivating them to use the information, not to logically evaluate the point
upon which it is relevant, but to reward or punish one side because of the
jurors’ emotional reaction. In such a circumstance, the evidence is unduly
prejudicial because of the substantial likelihood the jury will use it for an
illegitimate purpose.” (People v. Doolin (2009) 45 Cal.4th 390, 439.)
“ ‘ “[T]he trial court [has] broad discretion when weighing the probative
value and prejudicial effect of proffered evidence” ’ [citation], and that
exercise of discretion ‘will not be disturbed on appeal unless the prejudicial
effect of evidence so admitted clearly outweighed its probative value.’ ”
(People v. Clark (2019) 43 Cal.App.5th 270, 291; People v. Lamb (2024)
16 Cal.5th 400, 424 [We “ ‘do not disturb the trial court’s ruling unless it was
arbitrary, capricious, or made in a “ ‘patently absurd manner that resulted in
a manifest miscarriage of justice’ ” ’ ”].)
Here, we accept Gaines’s premise that desecration of a grave violates
cultural norms and may have evoked an emotional bias against Gaines in
some jurors. The fact remains, however, that the evidence had more than
slight probative value with regard to the issues in the case.
The court’s decision in People v. Lamb, supra, 16 Cal. 5th 400 is
instructive. In that case, the prosecution sought to introduce videos that had
been shown on Fox 11 News that “introduces PEN1 as a gang ‘increasing
recruitment efforts in the ranks of white supremacist skinheads’ and making
a push for power in prison and out on the streets.” (Id. at p. 420.) Among
other things, the videos included images of tattooed prisoners exercising,
white supremacist gang graffiti and tattoos, attack dogs and dog fighting,
swastikas and “cross burnings.” (Id. at pp. 421–422.) Because the murder
victim appeared in the video and was described as a shot caller in PEN1, the
prosecutor argued that the videos were probative of the motivation behind
10
the murder. (Id. at pp. 420, 422.) Specifically, the prosecutor’s theory was
that the defendant was “acting upon an order to kill [the victim] in retaliation
for having participated in a news program about the gang.” (Id. at p. 408.)
The defendant “objected to the videos on the ground they were unduly
prejudicial because [the victim] rarely appeared in the videos and the videos
had ‘a lot of media hype’ to make PEN1 ‘look like the most dangerous thing
out there.’ ” (Id. at p. 422.) The trial court expressed concern that some of
the images were prejudicial but “was ultimately persuaded that the probative
value of demonstrating a motive to kill [the victim] was not substantially
outweighed by the prejudice.” (Id. at pp. 422–423.) The California Supreme
Court rejected the defendant’s argument that the evidence should have been
excluded under Evidence Code section 352 because “the Fox videos were
unduly inflammatory and created the substantial likelihood that the jury
would use them for an illegitimate purpose.” (People v. Lamb, at p. 425.) The
court explained: “Although Lamb argued in the trial court that the
prosecutor’s theory of the case could be accommodated through other means
or that portions of the videos should be redacted, ‘the “persuasive power of
the concrete and particular is often essential to the capacity of jurors to
satisfy the obligations that the law places on them.” ’ [Citation.] The jury
was entitled to view what the prosecutor theorized and witnesses confirmed
was the motivation for murder, and the Fox videos and the inflammatory
content contained therein ‘assisted the jury in understanding’ the motivation
for the crime, ‘and the People were entitled to employ such evidence to prove
their case.’ (Ibid.) Lamb has failed to demonstrate that the probative value
of the Fox videos was substantially outweighed by a substantial danger of
11
undue prejudice to constitute an abuse of discretion.” (Id. at pp. 425–426,
footnotes omitted.)2
As in Lamb, the question in this case may be somewhat close but, on
this record, we cannot conclude that the trial court abused its discretion in
weighing the admissibility of the cemetery videos under Evidence Code
section 352. (People v. Lamb, supra, 16 Cal.5th at p. 420 [“Although the
question is close, we conclude the trial court did not abuse its broad
discretion in admitting the videos”]; see also People v. Clark, supra,
43 Cal.App.5th 270, 292 [where evidence that defendant pimped and
pandered other women carried risk that it might invoke an emotional bias
against defendant but also rebutted defendant’s claim that he did not intend
to pander victim, court could not “conclude that no reasonable judge would
have admitted the evidence”].)
We are not persuaded by Gaines’s reliance on People v. Coneal (2019)
41 Cal.App.5th 951. In that case, the court held that the trial court abused
its discretion by failing to exclude under Evidence Code section 352 rap
2 In Lamb, to lessen the possible prejudice of the videos, at the
defendant’s request, “the court instructed the jury multiple times that the
Fox videos contained images of bigotry, opinions by certain individuals,
inflammatory remarks by purported gang members, and sensationalism by
newscasters. It also instructed the jury it was not to consider the videos as
proof of the truth of any statements made by anyone in the recording or for
any purpose other than that provided, nor were they to conclude that Lamb
was a person of bad character or disposed to commit crimes.” (People v.
Lamb, supra, 16 Cal.5th at p. 426.) Gaines does not argue that he made a
similar request in this case. The jury was, however, twice instructed not to
let bias or prejudice influence its assessment of the evidence or its decision.
(Cf. People v. Jablonski (2006) 37 Cal.4th 774, 806 [noting that the jury was
“admonished that it was not to be influenced by pity for the defendant or
prejudice against him, nor by sentiment, conjecture, sympathy, passion,
prejudice, public feeling or public opinion”].)
12
videos containing lyrics that “casually describe graphic, widespread violence”
and that were misogynistic. (Coneal, at pp. 965, 970–971.) The court found
that “the lyrics add no probative value but are extremely prejudicial.” (Id. at
p. 968.) The lyrics could be considered probative only if they were construed
“literally, as statements of fact or actual intent,” but the usual factors that
could increase lyrics’ probative value as a statement of fact—such as
temporal proximity and factual similarity to the charged crime, or the
existence of corroborating evidence regarding the lyrics’ claims—were
entirely absent, rendering the probative value “minimal.” (Id. at pp. 968,
970–971.) On the other side of the scale, the videos “paint[ed] a picture of
appellant and his fellow gang members as eagerly and ruthlessly seeking out
and engaging in violence, with no empathy for their victims,” and thus posed
“a significant danger that the jury will use it as evidence of appellant’s
violent character and criminal propensity in violation of Evidence Code
section 1101, subdivision (a).” (Coneal, at pp. 970–971.) “Weighing this
minimal probative value against the significant prejudicial effect,” the court
concluded that “the admission of the rap videos was an abuse of discretion
under Evidence Code section 352.” (Coneal, at p. 972.)
The videos’ probative value was more than minimal here. They may
have been prejudicial insofar as they showed Gaines engaged in morally
reprehensible and inflammatory acts, but that was the apparent reason he
posted them—as a deliberate insult to members of a rival gang. The videos
had probative value because they evidenced and explained Gaines’s
involvement in the trajectory of that rivalry, which culminated in the
homicide of Humphries. In that respect, they were not merely cumulative of
other evidence, and we cannot find that the trial court abused its discretion
13
in concluding that their prejudicial impact did not substantially outweigh
their probative value.
But even if we assume the evidence was erroneously admitted, we
conclude it was not reversible prejudicial error. Contrary to Gaines’s
argument, prejudice in this case is properly evaluated under the state law
standard rather than the federal constitutional standard. “ ‘The admission of
evidence results in a due process violation only if it makes the trial
fundamentally unfair. [Citation.] “Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due
process. Even then, the evidence must ‘be of such quality as necessarily
prevents a fair trial.’ [Citation.] Only under such circumstances can it be
inferred that the jury must have used the evidence for an improper
purpose.” ’ ” (People v. Coneal, supra, 41 Cal.App.5th at p. 972.) As discussed
above, because the evidence was relevant to establish motive in this case, no
due process violation occurred. “ ‘Absent fundamental unfairness, state law
error in admitting evidence is subject to the traditional [state law] 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.
Watson (2008) 43 Cal.4th 652, 686.)
Here, both witness testimony and surveillance video evidence
established that one person appeared at the crime scene. That person
arrived and fled in the Audi A4 that Gaines stole five days earlier. The
suspect wore the same red and black jacket that Gaines wore in an
Instagram video posted on the day of the murder and that was also recovered
in his possession at the time of his arrest. Call detail records placed his
phone at the crime scene at the time of the shooting. The victim was shot
with the same gun recovered at the time of Gaines’s arrest. In light of this
14
overwhelming evidence, there is no reasonable probability that Gaines would
have obtained a more favorable outcome had the cemetery videos been
excluded. (See People v. Doolin, supra, 45 Cal.4th 390, 439 [any evidentiary
error under Evidence Code section 352 was harmless where “[t]here was
overwhelming evidence of defendant’s guilt”].)
II.
Gaines contends that his trial counsel rendered ineffective assistance
by failing to object under Evidence Code section 1101, subdivision (b), to the
admission of the uncharged purse theft in the Costco parking lot. A
defendant claiming ineffective assistance of counsel must show two things:
(1) trial counsel’s performance fell below an objective standard of
reasonableness, and (2) but for trial counsel’s deficient performance, there is
a reasonable probability that the trial outcome would have been different.
(In re Seumanu (2024) 100 Cal.App.5th 599, 623–624.)
Evidence Code section 1101, subdivision (a) prohibits a court from
admitting evidence of a person’s character “to prove his or her conduct on a
specified occasion.” Subdivision (b) of this section, however, authorizes a
court to admit “evidence that a person committed a crime . . . or other act
when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident[ ] . . .)
other than his or her disposition to commit such an act.”
Gaines argues that a reasonably competent defense attorney would
have objected because the incident bore no similarity to the charged offenses
and thus, there is a strong probability the trial court would have excluded the
evidence, and there was no potential benefit in allowing the jury to hear
about an uncharged crime that was relevant only to show criminal
propensity.
15
We need not decide whether counsel’s failure to object was deficient,
because even assuming it was, the admission of this evidence was not
prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 697 [“a court
need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies”].) Gaines acknowledges that the uncharged theft was not more
inflammatory than the other thefts with which he was charged. Given the
evidence of these other recent thefts, there is no likelihood that the result
would have been more favorable to Gaines had this evidence not been
admitted. (Id. at p. 694 [to establish prejudice “defendant must show that
there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different”].) The fact that the
jury was unable to reach a verdict on count 9—the theft of the motorcycle—
does not indicate that it harbored doubts about the offenses of which it
convicted him. If anything, it suggests that the jury carefully and
independently evaluated the evidence of each alleged incident, and was not
swayed by the uncharged purse theft.3
III.
Gaines was sentenced to an aggregate term of 64 years-and-four-
months-to-life in state prison, consisting of an indeterminate term of
38 years-to-life for murder and a consecutive determinate term of 26 years
and four months on the remaining counts. For Gaines’s conviction of first
degree murder (count 1), the court sentenced him to 25-years-to-life, with
enhancements of ten years for personal use of a firearm and three years for
3 At trial, the victim identified Gaines as the person who drove off with
his motorcycle, but admitted during cross-examination that, when he
testified at the preliminary hearing, he had been unable to identify anyone in
the courtroom as the person who took it.
16
inflicting great bodily injury. As to the determinate sentence, for the
December 2 carjacking (count 6), the court imposed an upper term of nine
years, plus a ten-year enhancement for personal use of a firearm and three
years for inflicting great bodily injury, for a sentence of 22 years. With
respect to the remaining counts, the court imposed a one-year term on the
January 8 robbery (count 8), a one-year term for the December 2 assault
(count 7) plus one year for the great bodily injury enhancement, eight months
for unlawful driving (count 5), and eight months for the illegal firearm
possession (count 2). The sentences imposed on the remaining firearm
offenses (counts 3 and 4) were stayed pursuant to section 654.
A.
Gaines contends that the trial court erred by imposing consecutive
sentences for both assault (count 7) and carjacking (count 6). He argues that
the court was required under section 654 to stay the sentence imposed on one
of the counts because both were based on the same physical act of driving a
vehicle in a threatening manner. The Attorney General concedes that section
654 applies. Gaines requests that this court remand for resentencing, noting
that section 654 allows the trial court to stay the sentence for either count 6
or count 7, at its discretion. (§ 654, subd. (a); People v. Mathis (2025)
111 Cal.App.5th 359, 367.) In light of the additional sentencing errors that
require correction on remand, we agree with Gaines that remand for
resentencing on this issue is appropriate as well.4
4 In light of this conclusion, Gaines’s argument that the great bodily
injury enhancement imposed on count 7 was based on the same injury to the
victim, and the same conduct by the defendant, as the great bodily injury
enhancement imposed on the carjacking count is moot.
17
B.
Gaines contends that the enhancement for personal use of a firearm
imposed on the carjacking count must be stricken because no evidence was
presented that a firearm was employed during the commission of that offense
and that the enhancement for infliction of great bodily injury on the murder
count is prohibited by section 12022.7, subdivision (g). The Attorney General
concedes the above enhancements must be stricken, noting that the
information did not allege these enhancements and the jury made no such
findings. We agree and accordingly direct the trial court on remand to strike
the enhancement for personal use of a firearm imposed on count 6 and the
enhancement for infliction of great bodily injury imposed on count 1.
The Attorney General argues that remand for resentencing on count 6
is required because the information alleges that Gaines “personally used a
deadly and dangerous weapon(s), to wit: vehicle, said use not being an
element of the above offense, within the meaning of Penal Code Section
12022(b)(1)” and the jury found this allegation to be true, but the court did
not impose sentence on this enhancement. (See People v. Delgado (2010)
181 Cal.App.4th 839, 854 [Attorney General may raise a sentencing error for
the first time in connection with defendant’s appeal].) This issue can also be
resolved by the trial court on remand.
C.
Gaines contends that the trial court abused its discretion by denying
his motion to strike some or all of the sentencing enhancements under section
1385. Under section 1385, subdivision (c)(1), a court “shall dismiss an
enhancement if it is in the furtherance of justice to do so.” In exercising its
discretion under this subdivision, “the court shall consider and afford great
weight to evidence offered by the defendant to prove that . . . [certain]
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mitigating circumstances . . . are present,” including that “defendant was a
juvenile when they committed the current offense” (§ 1385, subd. (c)(2)(G)),
“[m]ultiple enhancements are alleged in a single case” (id., subd. (c)(2)(B)),
and the enhancements resulted in a sentence of over 20 years (id.,
subd. (c)(2)(C)). “Proof of the presence of one or more of these circumstances
weighs greatly in favor of dismissing the enhancement, unless the court finds
that dismissal of the enhancement would endanger public safety.” (Id.,
subd. (c)(2).) However, even “absent a finding that dismissal would endanger
public safety, a court retains the discretion to impose” an enhancement if it
“finds substantial, credible evidence of countervailing factors that ‘may
nonetheless neutralize even the great weight of the mitigating circumstance,
such that dismissal of the enhancement is not in furtherance of justice.’ ”
(People v. Walker (2024) 16 Cal.5th 1024, 1029 (Walker); see also People v.
Bravo (2025) 107 Cal.App.5th 1144, 1157 [“[s]ection 1385(c) does not mean
that, whenever a listed mitigating circumstance is present, the trial court
must dismiss all enhancements unless it finds dismissal would endanger
public safety”].)
In the trial court, Gaines asserted that the mitigating factors identified
above supported his request to strike some or all of the enhancements.5 In
his sentencing memorandum, he set forth the significant amount of time in
prison that he would be facing without the enhancements and argued that,
“given this exposure on the prison terms, it cannot be said that not imposing
the enhancements would endanger public safety.” At the hearing, counsel
reiterated that “so much of Mr. Gaines’ conduct surrounding the homicide, be
it urinating on a grave or rapping or—those kinds of activities really evince a
5 The record reflects that Gaines was 18 years old when the offenses
were committed.
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very immature person. And I just wanted to mention that those facts sort of,
I believe, dovetail into my argument that the Court should impose the low
term when possible in this case and should strike the enhancements
pursuant to [section] 1385 as it’s set out in my sentencing memorandum.”
The trial court offered the following explanation for the sentence
selected and the denial of Gaines’s motion: “I have certainly taken the
defendant’s age into consideration. And if [this] were an isolated incident or
if there [had not been] any prior conduct that was very similar, I may find
that more compelling. However, this is not—these cases were not the
defendant’s first criminal activity. He had a prior robbery as a juvenile and
went through counseling and treatment for that which apparently had little
to no effect because it did not prevent him whatsoever in engaging in this
very lengthy crime spree. [¶] So it is the intention of the Court to sentence
the defendant to the maximum sentence allowed by law for the crimes of
which he’s been convicted, which amounts to a determinate term of 26 years
and 4 months, and an indeterminate term of 38 years to life in the state
prison. [¶] I’ve taken into consideration the defendant’s age at the time of
the offense, as well the defense memorandum regarding mitigating
circumstances. But I do not find any of them to be compelling enough to
impose anything other than the earlier term of the principal term or Count 6,
as well as the upper terms for each of the enhancements. The circumstances
in aggravation far outweigh any of the mitigating circumstances. [¶] Along
with the great violence and weapons used which form the basis for some of
the enhancements, each of the victims in these cases were unarmed and
vulnerable. The crimes involved the taking of items of great monetary value.
The defendant has suffered prior juvenile findings, and his conduct has
increased in seriousness and violence. [¶] The defendant was on probation
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at the time of these offenses and his prior performance on probation was
unsatisfactory. [¶] Any one of the circumstances in aggravation could form
the basis for imposition of the upper term. Collectively, they highlight just
how dangerous the defendant is and why he should not be allowed to return
to the community any time soon. [¶] The enhancements in this case appear
to be appropriate to adequately punish the defendant for his extremely
dangerous actions that posed an extreme and unreasonable danger to the
community.”
On appeal, Gaines argues that the trial court “abused its discretion by
focusing entirely on Gaines’ current dangerousness and failing to consider
whether he will present a threat to public safety in the future, i.e., at the time
he would become eligible for parole if the enhancements were dismissed. The
court also erred by failing to consider that the Parole Board will make a
determination whether Gaines is a threat to public safety before he can be
released. Gaines was only 18 years old when he committed the offenses here,
and his earliest possible release date is over 30 years in the future. Thus, the
trial court’s ruling was contrary to the spirit of the statute, and runs afoul of
case law, by focusing on Gaines’ current rather than future dangerousness.”
Initially, the Attorney General argues that this claim has been forfeited
by Gaines’s failure to interpose a timely objection. We disagree. Counsel’s
written memorandum and argument at the hearing are sufficient to preserve
the claim for appeal.
Turning to the merits, the Attorney General notes correctly that section
1385, subdivision (c)(2), “does not require the trial court to consider any
particular factors in determining whether ‘there is a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
danger to others.’ ” (People v. Mendoza (2023) 88 Cal.App.5th 287, 299
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(Mendoza).) And Gaines did not ask the court to consider how dismissing one
enhancement but not another might impact his risk to public safety or that
“the Board of Parole Hearings will serve as a backstop to prevent Gaines
from being released in the future if he remains a threat to public safety at the
time he becomes eligible for parole.”
Nor does the record affirmatively reflect, as Gaines suggests, that the
trial court considered only his current dangerousness. There is no dispute
that “the current dangerousness of the defendant is an appropriate factor to
consider, as it will have some bearing on whether dismissing the
enhancement would endanger the public.” (People v. Gonzalez (2024)
103 Cal.App.5th 215, 228.) In Gonzalez, at pages 223 to 224, 228, the court
held, however, that a trial court errs when it considers only a defendant’s
current risk to public safety. In that case, the trial court erroneously believed
“that it was required to decide whether the defendant ‘currently at the time
of sentencing represent[s] a danger to society’ ” and expressly rejected the
defendant’s argument that “in assessing whether dismissing the
enhancements would endanger public safety, ‘the trial court must look to
when [Gonzalez] would be released if a modification is granted’ and focus on
the ‘consideration of public safety following his release.’ ” (Id. at pp. 226,
227.) The court observed that the trial court’s statement that the defendant
“ ‘presently . . . does represent a danger to society,’ ” reflects the court’s
“singular focus on whether the defendant currently poses a danger.” (Id. at
pp. 224, 228.) Unlike in Gonzalez, the trial court in this case did not indicate
that it was limiting its analysis to current dangerousness or expressly decline
to consider whether the defendant would remain dangerous at the time of his
release.
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The record reflects that the trial court denied the motion not because it
believed dismissal of the enhancement would endanger public safety, or just
because it believed so, but because it found that Gaines’s “extremely
dangerous actions that posed an extreme and unreasonable danger to the
community” outweighed the mitigating circumstances to such a degree that
sentencing him on the enhancements was necessary to ensure that he “not be
allowed to return to the community any time soon” and to “adequately
punish” him for his crimes. By the time of his sentencing in December 2024,
the California Supreme Court had decided Walker, supra, 16 Cal.5th at
page 1029, in which the court held that “absent a finding that dismissal
would endanger public safety, a court retains the discretion to impose or
dismiss enhancements provided that it assigns significant value to the
enumerated mitigating circumstances when they are present.” In Walker,
the court agreed with the court’s decision in People v. Ortiz (2023)
87 Cal.App.5th 1087 that “section 1385, subdivision (c)(2)’s mandate to give
‘great weight’ to enumerated mitigating circumstances requires a sentencing
court to ‘engage[] in a holistic balancing with special emphasis on the
enumerated mitigating factors.’ ” (Walker, supra, at p. 1034.) The Supreme
Court emphasized that “there must be substantial, relevant, and credible
evidence of aggravating factors to neutralize the ‘great weight’ of the
mitigating circumstances.” (Id. at p. 1036.)
On appeal, Gaines does not address Walker. He does not argue that the
trial court failed to give adequate weight to the mitigating factors or that the
evidence in support of the aggravating factors cited by the court is not
sufficient. We note, however, that the court twice stated that it had
considered Gaines’s youth and explained why that circumstance was not
compelling in this case and that the evidence in support of the aggravating
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factors was substantial, relevant, and credible. Accordingly, regardless of
whether the trial court properly found that dismissing the enhancements
would endanger public safety, the record reflects that the trial court engaged
in the balancing approach endorsed in Walker.
DISPOSITION
The judgment is affirmed and the matter remanded for resentencing.
GOLDMAN, J.
WE CONCUR:
STREETER, Acting P. J.
GORDON, J.*
* Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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