Filed 7/20/26 P. v. Rand 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B331692
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA446655)
v.
DAVEON RAND,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed in part and
remanded with directions.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Eric J. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.
Defendant Daveon Rand was convicted of three murders,
five attempted murders, and four counts of being a felon in
possession of a firearm, all relating to a series of shootings
committed between 2014 to 2016. The jury also found true, along
with various firearm and gang-related enhancements, the special
circumstance that Rand committed the murders to further the
activities of a criminal street gang. Rand appeals the convictions,
raising multiple claims of error. We agree with the parties that
reversal of the gang special circumstance is required but
otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
A. Prosecution Evidence
1. Gangs and Firearm Evidence
Rand was an active member of the Main Street Crips. Los
Angeles Police Department (LAPD) Detective Erik Shear testified
as an expert regarding criminal street gangs in Los Angeles. He
was familiar with the Main Street Crips, also known as the Main
Street Mafia Crips. The gang’s members congregated at 84th and
Main Street and 98th and Main Street.
Detective Shear was also familiar with the Family Swan
Bloods. The Family Swan Bloods’ territory bordered that of the
Main Street Crips, and the gangs often clashed. Gang members,
including Main Street Crips, used the derogatory term “‘Sway’” to
refer to Family Swan Bloods. Rival gang members frequently
used Instagram and other social media platforms to threaten and
show disrespect for each other.
1 Additional background facts relevant to Rand’s claims on appeal
are set forth below in the discussion for each claim of error.
2
Detective Shear reviewed photographs of tattoos worn by
the Main Street Crips. One tattoo referring to the Family Swan
Bloods read, “‘If it flies, it dies.’” Detective Shear explained this
meant, “If it’s a Swan[,] it dies.”
Detective Shear also testified as a firearms expert. He
described a “7.62 by 39 cartridge” as the size of the cartridge in
millimeters and explained that type of ammunition was
commonly associated with “AK-47 variant rifles.” Gang members
referred to an AK-47 variant rifle as a “‘Chopper’” or “‘Choppa.’”
Detective Shear reviewed photo and video evidence of Rand
holding an AK-47 variant rifle. The detective confirmed the rifle
fired 7.62 caliber cartridges. There was also video showing Rand
firing an AK-47 rifle at a shooting range with boxes of
7.62 caliber cartridges.
2. Rand’s Girlfriend Confirmed He was a Main Street
Crips Member
In 2012, when Tasheonna Dailey became Rand’s girlfriend,
she knew he was a member of the Main Street Crips. Dailey was
familiar with the Family Swan Bloods and knew them to be a
rival of the Main Street Crips. She knew the term “‘Sway’” was a
derogatory reference to the Family Swan Bloods. She had heard
Rand use the term. She also recorded a video in June or
July 2015 of Rand singing about killing “Sways.” She said Rand
was taking pain medication at the time.
Dailey knew Rand had gang tattoos, including a tattoo on
his arm reading, “‘If it flies, it dies.’” She knew Rand’s nickname
was “JM,” which stood for Junior Mafia. She also knew Barry
Gardner, who went by “Little JM” and was close with Rand.
3
Between 2014 to 2016, Dailey saw Rand with multiple assault
weapons.
In 2013, Dailey and Rand lived together at a residence on
84th Street. In 2015, they moved to an apartment in Hawthorne
on Kornblum Avenue. Rand and Dailey worked at oil refineries
for a company called Total Safety. The refinery where they
worked the most was located at 190th Street and Crenshaw.
Rand worked there from approximately late 2012 or early 2013 to
2016.
3. June 15, 2014, Attempted Murder, Marasho Mazique
(Count 8) at Three Star Liquor
On June 15, 2014, Dailey was at church when she received
a call from Rand telling her his car was on fire. She rushed home
and found the car smoking and wet. Inside the car, she saw a
burnt soda bottle that looked like it could have been used as a
Molotov cocktail. Dailey called the police.
At approximately 1:30 p.m., a police officer responded to
the call. The officer looked at the car and saw the burned
interior. He observed a bottle partially filled with gasoline and a
hammer inside the vehicle.
Later that evening, Marasho Mazique, a Family Swan
Bloods member, went to Three Star Liquor on 81st Street and
Avalon Boulevard. The liquor store was a hangout for Family
Swan Bloods. Mazique was walking out of the store when he was
shot eight times.
A detective responded to a 911 call about the shooting and
found Mazique inside the store. Paramedics transported
Mazique to the hospital. Officers recovered 11 .45 caliber casings
and five .45 caliber slugs. An officer reviewed surveillance
4
footage of the shooting at the liquor store. The shooter was
wearing all black, white gloves, and a Philadelphia Eagles hat.
4. December 26, 2014, Attempted Murder, Randy Walker
(Count 9)
In December 2014, Dailey ran into a member of the Family
Swan Bloods, Randy Walker, at the Compton Swap Meet.
Walker tried to “hit on” Dailey and asked for her phone number.
Dailey told him, “‘No.’” She did not recall whether she told Rand
about the incident, but she said that if somebody from the Family
Swan Bloods hit on her, that was generally something she would
tell him
On December 26, 2014, Walker was shot at while he was
driving in the area of 84th and Wall Streets. Walker crashed but
was able to drive away. A five-year-old child playing in his front
yard saw a man running after a truck, shooting at it with a
handgun. The child did not see the shooter’s face.
5. June 25, 2015, Attempted Murder, Randy Walker
(Count 10)
On June 25, 2015, Walker was sitting in the driver’s seat of
his car with his cousin, eating in front of a taco shop on San
Pedro Street, when his car was hit by bullets. A bullet grazed
Walker’s back before he drove away. A police officer responded to
the shooting and found 11 expended .45 caliber casings in front of
the taco shop.
The following day, Walker went to a police station to report
the shooting. An officer inspected the vehicle and saw the
driver’s side door had been damaged by gunfire. The officer
found four .45 caliber projectiles in the driver’s area of the car.
5
6. August 18, 2015, Murder, Tony Jones (Count 1)
On August 18, 2015, LAPD Detectives Samuel Marullo and
Iris Romero were assigned to investigate the murder of Tony
Jones, which had occurred that day. The detectives responded to
the area of 145 West 79th Street where Jones was shot and
killed. The police recovered 24 7.62 by 39 discharged cartridge
cases and 10 10-millimeter discharged cartridge cases.
While investigating the Jones murder, Detective Marullo
was alerted to the Instagram accounts of “Coool_JM” and
“Hoochie_Killa_Sway.” Investigation revealed the accounts
appeared to be active on the same device. Coool_JM, as
confirmed by Dailey and the information posted on the account
(e.g., name, phone number, photos), belonged to Rand, whose
nickname was “JM.” Hoochie_Killa_Sway, however, did not have
any readily apparent information identifying who owned the
account. According to Detective Marullo, the name
Hoochie_Killa_Sway meant “Hoover”2 killer and “Swan” killer.
The Hoochie_Killa_Sway account posted a photo of Randy
Walker with the text, “And then KT got dropped.” “KT” was Tony
Jones’s nickname, and “dropped” meant shot. There were
additional posts on the account showing disrespect for Family
Swan Bloods, threatening to shoot them with a rifle, and
bragging about eliminating Jones as a rival. Shortly after Jones
was killed, a picture of Jones crossed-out with an X was posted
along with the text, “Main Street Choppa victim. . . On Mafia ktK
did a cartwheel when he got hit with that chop.” (Sic.) Another
post threatened to shoot Walker with a “choppa.”
2 The Hoover Criminal Gang was another rival gang of the Main
Street Crips.
6
Detective Romero also looked at an Instagram account that
displayed photos of gang graffiti. The account’s posts had
comment sections open for anybody to post messages. Eight days
after the Jones murder, Hoochie_Killa_Sway wrote to another
user, “[O]n M’s every time I push through y’all set I get ma man.
Rather he die or not. Got KT tho. that boy face was gone.” (Sic.)
Detective Marullo explained that this meant Hoochie_Killa_Sway
said he shot Jones in the face. Jones did in fact sustain
significant damage to his face and head when he was shot. There
were additional posts with details consistent with the murder,
including that Jones was also shot in the legs with a rifle and the
location of the shooting.
Other posts from the Hoochie_Killa_Sway account
indicated the arson incident involving Rand’s car on June 15,
2014, was the motive behind the shooting of Mazique that night
at Three Star Liquor. The posts also contained information
consistent with the shooting. Additional posts threatened that
killings would continue and a rifle would be used.
Dr. Kenny Su performed the autopsy of Jones and prepared
a report. The report indicated Jones suffered seven gunshot
wounds. It listed the cause of death as multiple gunshot wounds
and manner of death as homicide.
7. September 20, 2015, Attempted Murder, Randy
Walker (Count 11)
On September 20, 2015, Walker was targeted for a third
time. He was leaving a house on 80th Street with his cousin
when somebody got out of a car and started shooting at them.
When they heard the shots, Walker and his cousin hid in a
backyard.
7
W. Cardenas was barbecuing in his front yard when a
white car stopped in front of him. Cardenas saw someone get out
of the back driver’s side door and heard gunshots. When the
shooting finished, Cardenas heard the door close and the car take
off.
LAPD Officers Edward Avila and Jonathan Gundell
responded to the shooting. Cardenas told the officers the gun
used seemed like a “strong weapon, like a rifle” because “the
gunshots were quite loud.” The officers located 26 expended
7.62 caliber casings, two live 7.62 rounds, and
14 expended .40 caliber casings. Officer Avila found Walker and
his cousin in a backyard. Officer Avila also spoke with another
person who provided a video of the shooting.
8. January 23, 2016, Murders of Shujaa Silver
(Count 3) and Cyjai Bell (Count 4), and Attempted
Murders of Alex Taylor (Count 5) and Thomas Hall
(Count 6)
a. The Jeep Patriot Rental
Mykila Wright was in a relationship with Gardner (Rand’s
close friend who was known as Little JM). Wright rented a gray
Jeep Patriot from Enterprise Rent-A-Car from January 14 to
January 26, 2016. Wright shared the Jeep with Gardner. He
used the vehicle to drop her off at work on January 23, 2016, and
she did not see him again until early the next morning.
b. The Second Three Star Liquor Shooting
On January 23, 2016, Thomas Hall, Shujaa Silver, Cyjai
Bell, and Alex Taylor were hanging out at about 8:00 p.m. at
Three Star Liquor, the same store where Family Swan Bloods
8
member, Mazique, had been shot after Rand’s car was set on fire
in June 2014. Hall and Silver were members of the Family Swan
Bloods, and Bell was affiliated with the gang. They were outside
the store when shots were fired at them. Hall got shot in the
back and hip and ran inside the liquor store. Taylor suffered a
graze wound to the head. After the shooting, Hall went outside
and saw Silver and Bell laying on the ground. Silver and Bell
had been shot and died.
LAPD Detective Matthew Casalicchio was assigned to
investigate the murders. Numerous expended 7.62 by 39 caliber
cartridges were recovered at the scene. Detective Casalicchio
reviewed surveillance recordings from the liquor store and
neighborhood that captured the shooting. He was able to
determine the suspect vehicle’s path of travel before and after the
shooting using the recordings. The recordings also captured the
shooter exiting the suspect vehicle, shooting Hall, Silver, Bell,
and Taylor, and fleeing in the same waiting vehicle. From the
recordings, Detective Casalicchio identified the suspect vehicle as
a gray or charcoal Jeep Patriot. After Gardner was later arrested
in a different vehicle rented by Wright, Detective Casalicchio
traced the suspect Jeep Patriot back to Wright’s rental from
Enterprise Rent-A-Car.
Detective Casalicchio found Instagram posts on the
Hoochie_Killa_Sway account relating to the second Three Star
Liquor shooting. The posts claimed credit for the shooting,
explained the shooter got out of the vehicle and used a rifle, and
provided details about the victims and how they were shot. The
posts also referenced other shootings: they stated
Hoochie_Killa_Sway “stood over” Jones with a rifle and shot
Mazique at the same liquor store.
9
In response to a post from Walker’s Instagram account
stating that “choppa boy” was “‘in hiding,’” Hoochie_Killa_Sway
replied, “Ha. . . I’m in yo hood chopping sh*t up ! Choppa Boy
strucc once again.” (Sic.) Detective Marullo explained that this
meant Hoochie_Killa_Sway, or “Choppa Boy,” was shooting up
Walker’s neighborhood and was successful in a shooting. This
post was made after the double murder at Three Star Liquor,
which was in the Family Swan Bloods’ neighborhood.
c. Autopsies of Silver and Bell
Dr. Matthew Miller performed the autopsy on Silver and
prepared a report. Dr. Miller determined Silver suffered
eight gunshot wounds. Dr. Miller concluded the wounds were
“compatible with a high velocity round, something like a rifle,”
and were consistent with a 7.62 caliber bullet.
Dr. David Whiteman performed the autopsy of Bell and
prepared a report. The report concluded the cause of death was a
gunshot wound and manner of death was homicide.
9. Arrest of Rand and Investigation
Detective Casalicchio’s investigation led to him focus on
Rand as the suspect for the murders. Rand was arrested in
May 2016. On the morning of his arrest, a group text message
warned Rand there was a “raid team” in his neighborhood.
Detective Casalicchio was monitoring the Hoochie_Killa_Sway
account that morning and noticed that all posts and photos,
except for one of Walker crying, were being deleted.
The police recovered a cellphone from Rand after his arrest.
After Rand shared the code to unlock his cellphone with his
mother during a phone call he made while in custody, Detective
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Casalicchio was able to access Rand’s cellphone and extract
information from it. Detective Casalicchio concluded the
Coool_JM and Hoochie_Killa_Sway accounts were accessed
through Rand’s phone and that they were created on his phone.
After receiving responses to search warrants for the Coool_JM
and Hoochie_Killa_Sway accounts, Detective Casalicchio found
the accounts used the same IP addresses on numerous dates.
Further, Detective Casalicchio found that photos deleted from
Rand’s cellphone appeared on the Hoochie_Killa_Sway account.
The police also discovered a Facebook conversation between
Rand and another person where Rand said he was going to “‘tag’”
the person on his “‘fake [Instagram].’” Shortly after, the
Hoochie_Killa_Sway account tagged the Instagram account of the
person with whom Rand was conversing. Following Rand’s
arrest, Detective Casalicchio continued to monitor the
Hoochie_Killa_Sway account; there were no logins after the
arrest. The detective concluded the account belonged to Rand.
Detective Marullo discovered that on June 27, 2015,
two days after shots were fired at Walker in front of the taco
shop, Hoochie_Killa_Sway messaged Walker’s Instagram
account. The message read: “God was on yo side huh lol . . .
crazy cause a n*gga hit yo’ side of the car up . . . Its cool. Every
chance I get I’m gon try to drop yo ass. U ain’t got too many
chance big dawg. Next time I’m clappin’ that ass on Main St.”
(Sic.)
Additionally, the police saw that five days before Jones’s
murder in August 2015, Rand texted Dailey asking her to
purchase ammunition, including “‘7.62 by 39 ammo for an AK.’”
This was the same size as the cartridge cases recovered from the
scene of Jones’s murder. Approximately a week after Jones’s
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murder, Hoochie_Killa_Sway posted a message responding to
another post stating, “Lol n*gga for one this is a fake page for
police purposes, not finna incriminate maself none . . .” (Sic.)
Detective Casalicchio also checked the Coool_JM account’s
posts and messages. On December 21, 2015, the Coool_JM
account posted, “A SwayK has to drop bk4 Christmas.” (Sic.)
A text string with Coool_JM showed that on
January 22, 2016, Rand messaged, “Wussup with these swaysK,”
before later messaging, “I got this [motherf*ckin’] choppa & on
Main street where this n*gga Lil j at.” (Sic.) Detective
Casalicchio determined “‘Lil j’” was Gardner.
At 5:43 p.m., on January 23, 2016, the day the second
Three Star Liquor shooting took place, there was a message,
“‘Ready?’” At 5:45 p.m., another person messaged, “‘I get off
round 7.’” (Sic.) At 5:46 p.m., Rand messaged, “‘Lil finna grab
me in a few then OMSK[3] to the set.’” At 7:21 p.m., Rand sent a
message asking where another person was. Later at 10:17 p.m.,
after the second Three Star Liquor shooting, someone messaged,
“‘God damn cuz.’” (Sic.)
Additionally, Detective Casalicchio obtained videos of Rand
firing an assault weapon at different firing ranges. The detective
determined one of videos showed Rand firing a weapon of the
type used in the double murder of Silver and Bell, which fired the
same 7.62 caliber cartridges found at the crime scene. The video
was recorded in March 2016 at a shooting range in Georgia. A
receipt showed Rand purchased ammunition, targets, and ear
plugs. The receipt did not show that a firearm was rented.
3 “OMSK” meant “on my way” or “‘on my Sway.’”
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Detective Casalicchio reviewed Rand’s employment records
and determined he was not working the day Mazique was shot at
Three Star Liquor (June 15, 2014), the day Walker was shot at
while driving in the area of 84th and Wall Streets
(December 26, 2014), the day Jones was murdered
(August 18, 2015), or the day shots were fired at Walker and his
cousin on 80th Street (September 20, 2015). Employment records
showed Rand worked on the day shots were fired at Walker in
front of the taco shop (June 25, 2015) and on the day of the
double murders of Silver and Bell (January 23, 2016), but
cellphone records placed him in the area of both shootings at the
time they occurred.
Using Rand’s Gmail account, the police were able to
analyze Rand’s Google location history based on cell tower and
Wi-Fi access points.4 The data placed Rand’s cellphone in the
area of the June 25, 2015, shooting targeting Walker in front of
the taco shop; the Jones murder at 145 West 79th Street on
August 18, 2015; and the Walker shooting on 80th Street on
September 20, 2015. For January 23, 2016, the data showed
Rand’s cellphone traveling to Three Star Liquor from his
Kornblum residence and being in the vicinity when the shooting
occurred.
Cellphone records also showed a telephone call between
Rand and Gardner an hour and a half before the January 2016
Three Star Liquor shooting. Google location history placed
Rand’s cellphone at or near his Kornblum Avenue address at
approximately 6:30 p.m. Cell site activity for Gardner’s cellphone
was consistent with someone traveling to the Kornblum address
4 The police were unable to obtain any Google location history
data for 2014.
13
and arriving in the same area as Rand’s cellphone at
approximately 6:47 p.m. The cell site data was also consistent
with someone traveling to the area of the shooting at the time it
occurred.
The location history data was also provided for social media
posts by Hoochie_Killa_Sway. A few weeks after the
January 2016 Three Star Liquor shooting, Hoochie_Killa_Sway
bragged about the murders of Silver, Bell, and Jones and
attempted murder of Mazique. Location history data placed the
cellphone that made the posts at the oil refinery where Rand
worked. The data for posts referring to other shootings and
related threats was also consistent with locations associated with
Rand, such as the refinery and his residence on Kornblum
Avenue. The data also linked the Hoochie_Killa_Sway account to
the Coool_JM account and Rand’s email, phone number, and
Facebook.
Additionally, the police searched Rand’s residence after he
was arrested and located a Philadelphia Eagles hat that was like
the hat the suspect was wearing at the time of the Mazique
shooting. The police also located video evidence on Dailey’s
phone showing Rand was in possession of an assault weapon two
months before the January 2016 murders.
B. Defense Evidence
1. Other Individuals Used Rand’s Phone
Dailey and Rand lived together from 2012 or 2013 until
Rand was arrested in May 2016. When they lived together at the
Kornblum address, Dailey saw other Main Street Crips using
Rand’s phone. One such person was her cousin, Jermaine
Murray. Murray would stay with them for weeks to months. She
14
never saw Murray with his own cellphone. Murray was killed
two days after the January 2016 liquor store shooting. Dailey
continued seeing other Main Street Crips using Rand’s phone
after Murray’s death.
Johnny Johnson, a member of the Main Street Crips, used
Rand’s phone between 2014 to 2016 to access the internet and
Instagram. Johnson said he would use Rand’s phone to access
the Hoochie_Killa_Sway account to taunt rival gangs and post
comments and photographs. Johnson also accessed the Coool_JM
account and posted things about the Family Swan Bloods. Kevin
Leslie said he also used Rand’s phone to login to Instagram and
access the Hoochie_Killa_Sway account. Andrew Butler was
associated with the Main Street Crips and said he used Rand’s
phone between 2014 and 2016. Johnson, Leslie, and Butler said
they each saw other members of the Main Street Crips using
Rand’s phone between 2014 to 2016.
Dailey looked at a photograph and identified multiple
people in the picture as being members of the Main Street Crips
who worked at the oil refinery with Rand. Dailey knew several
Main Street Crips worked at the refinery because they were all
hired at a job fair by the same supervisor who was associated
with the Main Street Crips. The supervisor associated with the
gang said the refinery had a zero-cellphone policy and phones
were not allowed inside operating areas. However, at times
employees did not comply with the policy, and on one occasion,
the supervisor warned Rand about using his phone.
2. Rand’s Foot Injury
In July 2015, Rand was shot in the foot and could not walk.
After Dailey picked him up from the hospital, he used crutches
15
and wore a boot. That month, Rand worked three days at the
refinery. Rand’s employment was terminated in late July 2015,
because he could not walk. Dailey said it was not until sometime
in September 2015 that she saw Rand walking around “the way
he used to before he got shot.” After terminating Rand’s
employment in July 2015, the supervisor associated with the
Main Street Crips rehired Rand in October 2015 when Rand was
able to walk.
C. The Charges
Rand was charged in a 14-count information with the
following crimes: the murder of Jones on August 18, 2015
(count 1); possession of a firearm by a felon on August 18, 2015
(count 2); the murders of Silver (count 3) and Bell (count 4), and
attempted murders of Taylor (count 5) and Hall (count 6) on
January 23, 2016; possession of a firearm by a felon on
January 23, 2016 (count 7); the attempted murder of Mazique on
June 15, 2014 (count 8); the attempted murders of Walker on
December 26, 2014 (count 9), June 25, 2015 (count 10), and
September 20, 2015 (count 11); and possession of a firearm by a
felon on December 26, 2014 (count 12), June 25, 2015 (count 13),
and September 20, 2015 (count 14).
As to all counts, it was alleged the crimes were committed
for the benefit of, at the direction of, or in association with a
criminal street gang pursuant to Penal Code5 section 186.22. As
to the murder and attempted murder counts, it was further
alleged that Rand personally used and intentionally discharged a
firearm causing great bodily injury or death within the meaning
5 All further statutory references are to the Penal Code, unless
otherwise stated.
16
of section 12022.53. As to the murder counts, the information
alleged a special circumstance under section 190.2,
subdivision (a)(3), and a criminal street gang special
circumstance under section 190.2, subdivision (a)(22).
D. The Verdicts and Sentencing
In 2021, a jury convicted Rand of counts 1 through 8,
10 through 11, and 13 through 14. The jury found the murders to
all be in the first degree. The jury found true the related special
allegations as to all counts Rand was convicted of, with the
exception of the firearm allegations under section 12022.53 as to
counts 3 through 6 and 8. The jury did not reach a verdict as to
the firearm allegations in those counts. The jury found Rand not
guilty of counts 9 and 12.
At sentencing, the special gang allegations under
section 186.22 were dismissed in light of Assembly Bill No. 333
(Assembly Bill 333) (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699,
§ 1). Rand’s total sentence was three terms of life without the
possibility of parole for the murders plus 60 years to life and
40 years for the remaining counts and enhancements. Rand
timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Denying Rand’s
Batson/Wheeler Motion
During voir dire, defense counsel brought a motion under
Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler
(1978) 22 Cal.3d 258 (Batson/Wheeler), objecting to the
prosecution’s peremptory challenge to a Black female juror. The
trial court denied Rand’s motion, finding he did not make a prima
17
facie showing that the prosecutor exercised the peremptory
challenge in a discriminatory manner. We find no error.
1. Additional Background
Juror No. 5632 was a single, Black woman from Los
Angeles who worked as a chemist and previously sat on a jury
that reached a verdict. When asked by the prosecutor, she
mentioned a negative experience with law enforcement that
occurred about five years earlier. She said she was pulled over in
a different jurisdiction for “almost making an illegal U-turn,” was
handcuffed, and her car was searched. Juror No. 5632 believed
the incident was “inappropriate” but would not hold it against
any police officers testifying. She said she could be fair to both
sides. Previously, Juror No. 5632 had raised financial concerns
about serving on the jury with the judge.6 When the prosecutor
noted this, Juror No. 5632 stated it would not be a pressing issue.
Defense counsel asked the prospective jurors if they ever had
personally been the victim of a crime, and Juror No. 5632 said
she had.
The prosecutor exercised a peremptory challenge against
Juror No. 5632, and defense counsel brought a Batson/Wheeler
motion challenging the excusal. Defense counsel argued the juror
was neutral and “the only qualifying characteristic that [counsel]
would note about her was that she was indeed African-
American.” The trial court did not think that, based on the
prosecution’s “single challenge,” there was a sufficient basis to
find the juror was excused “because she’s from a cognizable
6 After ruling on the motion, the trial court later recalled that
Juror No. 5632 said she would still work a 12-hour schedule, from 6:00
p.m. to 6:00 a.m., if she was on the jury.
18
class.” The court found the defense did not make a prima facie
showing under Batson-Wheeler.
The trial court then invited the prosecutor to give the
reason why the juror was excused. The prosecutor explained that
the parties had been in jury selection for eight days and had
screened 100 to 200 prospective jurors. The prosecutor said that
prior to exercising the peremptory against Juror No. 5632, the
prosecution exercised 19 peremptory challenges, none of which
“included African-Americans.” The prosecutor added that there
were currently two Black women on the jury who had been
accepted by the prosecution and that all the victims in the case
were Black.
The prosecutor said the juror came to the prosecution’s
attention because she claimed financial hardship and at the time
“appeared dissatisfied with the court’s ruling and generally
unhappy to have to serve.” Next, the prosecutor said the juror
had a tattoo on the back of her ear and he generally “stay[ed]
away” from jurors with face or neck tattoos. The prosecutor
further asserted the juror had bad experiences with law
enforcement and many police officers were going to be testifying.
The prosecutor believed the juror would be biased and
inattentive. Defense counsel argued that under Assembly
Bill 3070, which counsel acknowledged had “not yet come into
law,” the prosecution’s reasons did not provide a sufficient basis
for exercising a peremptory challenge. The trial court reiterated
it did not find the defense met its burden to make a prima facie
case and denied the Batson/Wheeler motion.
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2. Legal Standard
A Batson/Wheeler motion is evaluated under a three-step
framework: “First, the defendant must make a prima facie case
by showing facts sufficient to support an inference of
discriminatory purpose. [Citation.] Second, if the defendant
makes a prima facie showing, the burden shifts to the prosecutor
to offer a permissible, nondiscriminatory explanation for the
strike. [Citation.] Third, if the prosecutor offers a
nondiscriminatory explanation, the trial court must decide
whether that explanation is genuine, or whether impermissible
discrimination in fact motivated the strike.” (People v. Battle
(2021) 11 Cal.5th 749, 772 (Battle).)
“[A]n appellate court properly reviews the first-stage ruling
if the trial court has determined that no prima facie case of
discrimination exists, then allows or invites the prosecutor to
state reasons for excusing the juror, but refrains from ruling on
the validity of those reasons.” (People v. Scott (2015) 61 Cal.4th
363, 386.) Because this is what occurred here, we review the trial
court’s first-stage ruling that Rand did not make a prima facie
case. “We consider whether ‘“the totality of the relevant facts”’
surrounding [the juror’s] excusal ‘“gives rise to an inference of
discriminatory purpose.”’” (Battle, supra, 11 Cal.5th at p. 773.)
The ultimate issue is whether a particular prospective juror has
been challenged because of group bias, and “[w]e examine the
entire record before the trial court to determine whether it
supports an inference of such group bias.” (Ibid.)
“Certain types of evidence are especially relevant to this
inquiry, including whether the prosecutor has struck most or all
of the members of the venire from an identified group, whether a
party has used a disproportionate number of strikes against
20
members of that group, whether the party has engaged
prospective jurors of that group in only desultory voir dire,
whether the defendant is a member of that group, and whether
the victim is a member of the group in which the majority of the
remaining jurors belong. [Citation.] We may also consider
nondiscriminatory reasons for the challenged strikes that are
‘apparent from and “clearly established” in the record.’” (Battle,
supra, 11 Cal.5th at p. 773.)
We review a denial at the first stage deferentially,
considering only whether substantial evidence supports the trial
court’s conclusion. (People v. Silas (2021) 68 Cal.App.5th 1057,
1095 (Silas); Battle, supra, 11 Cal.5th at p. 772.)
3. Analysis
We conclude the trial court’s first-stage Batson/Wheeler
ruling is supported by substantial evidence. “‘[M]ak[ing] a prima
facie case after the excusal of only one or two members of a group
is very difficult.’” (Battle, supra, 11 Cal.5th at p. 776; People v.
Clark (2016) 63 Cal.4th 522, 567 [same].) Before using the
peremptory to excuse Juror No. 5632, the prosecutor used
19 peremptory challenges, none of which were against Black
prospective jurors. There was no showing the prosecution struck
most or all the members of the identified group or used a
disproportionate number of peremptory challenges against the
group. Moreover, the prosecutor accepted the panel with two
Black women seated at the time it excused Juror No. 5632, which
“further lessens any inference of discrimination.” (Battle, supra,
11 Cal.5th at p. 777; see People v. Lenix (2008) 44 Cal.4th 602,
629 [prosecution’s acceptance of panel containing Black juror
21
“strongly suggests” race was not a motive in challenge of other
Black juror].)
Other factors also indicate the Batson/Wheeler ruling is
supported by substantial evidence. There is no showing the
prosecution singled out Black jurors or treated them differently.
The prosecutor did not engage in “desultory” or cursory
questioning of Juror No. 5632. (Battle, supra, 11 Cal.5th at
p. 773.) This case does not involve racial identities that raise a
heightened concern that the prosecutor’s challenge was racially
motivated. (See e.g., id. at p. 774 [Black defendant, White
victims, and all White jury]; People v. Miles (2020) 9 Cal.5th 513,
523, 531 [excusal of Black jurors in case involving Black
defendant accused of murdering White woman].)
Rand’s arguments do not show the prosecutor had improper
motives for excusing Juror No. 5632. He argues that there was
no basis to conclude the juror would be biased and that she was
an intelligent person. “But just because the record reveals that
[Juror No. 5632] had much to commend her,” does not raise an
inference the juror was excused because of group bias. (Battle,
supra, 11 Cal.5th at p. 779.) “So long as prosecutors are not
motivated by discriminatory intent, they can strike prospective
jurors for any reason—including for reasons that don’t
necessarily justify a challenge for cause.” (Ibid.) Similarly, to the
extent Rand suggests the prosecution should have liked the fact
that the juror was a crime victim, the prosecutor does not “have
to accept a prospective juror simply because the juror may be pro-
prosecution in some respects.” (Ibid.)
“Because the trial court rejected the Batson/Wheeler
motion at step one, the prosecutor wasn’t obligated to state his
reasons for challenging any prospective juror.” (Battle, supra, 11
22
Cal.5th at p. 784.) At the first stage, we “consider only whether
the prosecutor’s stated rationale was facially insincere.” (Id. at
pp. 784–785.) In this case, the prosecutor stated the juror was
unhappy to serve after the court declined to excuse her due to
financial hardship. She had a neck tattoo that made him
question her judgment and a bad previous experience with law
enforcement. With regard to the last stated reason, courts have
“repeatedly held a negative experience with law enforcement is a
race-neutral reason for excusal.” (People v. Bryant (2019) 40
Cal.App.5th 525, 538.) Rand does not show any of the stated
reasons were sufficient to raise an inference of bias under the
applicable law at the time of trial. On their face, the prosecutor’s
reasons are not insincere.
In arguing otherwise, Rand relies heavily on Code of Civil
Procedure section 231.7, enacted by Assembly Bill 3070, which
lists 13 presumptively invalid reasons for exercising a
peremptory challenge. (Code Civ. Proc., § 231.7, subd. (e).)
Subdivision (i) of Code of Civil Procedure section 231.7 states,
“This section applies in all jury trials in which jury selection
begins on or after January 1, 2022.” This date was after Rand’s
trial, and thus the statute does not apply. (See Battle, supra, 11
Cal.5th at p. 776, fn. 9 [“Assembly Bill No. 3070 has not yet taken
effect . . . , so it offers us no occasion to revisit . . . our
Batson/Wheeler jurisprudence more broadly”]; Silas, supra, 68
Cal.App.5th at p. 1069, fn. 12 & 1102 [“the legislation has no
bearing on this appeal, however, because it applies prospectively
to trials ‘in which jury selection begins on or after
January 1, 2022’”].)
Citing People v. Hicks (2024) 103 Cal.App.5th 1229, Rand
argues Code of Civil Procedure section 231.7 should nonetheless
23
inform our analysis. Hicks is distinguishable as it addressed only
the third stage of the Batson/Wheeler inquiry. Here, as
substantial evidence supported the trial court’s first-stage
Batson/Wheeler ruling, it did not need to engage in a stage three
analysis.
In sum, Rand fails to establish a basis for inferring that the
prosecution may have struck Juror No. 5632 because of her race.
B. Any Confrontation Clause Error Concerning the
Autopsy Reports was Harmless
Rand argues the trial court violated his constitutional right
to confront and cross-examine witnesses and to due process when
a coroner, Dr. Miller, was permitted to testify about the autopsies
other medical examiners performed. Rand contends his rights
were also violated when the autopsy reports of the non-testifying
coroners were admitted into evidence. The People agree it was
error for the trial court to admit the reports not prepared by Dr.
Miller and to permit the coroner to testify about their contents.
The People contend, however, that the error was harmless
beyond a reasonable doubt. We agree with the People.
1. Additional Background
During trial, defense counsel objected to Dr. Miller
testifying about the Bell and Jones autopsies, which were
performed by Dr. Whiteman and Dr. Su, respectively.
Dr. Whiteman had a stroke and retired, while Dr. Su had taken a
job in Sacramento. The prosecutor informed the trial court that
Dr. Miller was the coroner “who is available.”
Defense counsel objected to Dr. Miller testifying based on
“Sanchez, hearsay, and Crawford,” but the trial court allowed the
24
prosecution to present the evidence. Dr. Miller testified about
photographs in Dr. Whiteman’s report. He opined the
photographs showed an entry wound from a gunshot to Bell’s
right shoulder and exit wound on her left mid- to upper back.
Dr. Miller noted the photos showed Bell was shot once.
Dr. Whiteman’s report concluded the cause of death was a
gunshot wound and manner of death was homicide.
Next, Dr. Miller testified as to the contents of the Jones
autopsy report prepared by Dr. Su and photographs in the report.
Dr. Miller stated there was a photograph showing multiple
gunshot wounds to Jones’s body. In particular, Dr. Miller noted a
“large defect” and an exit wound from a gunshot in Jones’s head,
which Dr. Miller stated was compatible with an exit wound from
a “high velocity bullet,” such as a 7.62 caliber cartridge.
Dr. Miller located other gunshot wounds to Jones’s right
shoulder, left side of the chest, neck, back, and left arm. Dr. Su’s
report concluded the cause of death was multiple gunshot wounds
and manner of death was homicide.
2. Analysis
Dr. Miller’s testimony regarding the Bell and Jones
autopsies can be grouped into two categories: (1) in-court
statements premised explicitly on photographs, and
(2) recitations of statements made by Dr. Whiteman and Dr. Su
in the autopsy reports they created.
In Crawford v. Washington (2004) 541 U.S. 36, 53–54
(Crawford), the United States Supreme Court held that the
admission of “‘testimonial’ hearsay” against a criminal defendant
violates the defendant’s confrontation rights unless the declarant
is unavailable and the defendant had a prior opportunity for
25
cross-examination. (People v. Nadey (2024) 16 Cal.5th 102, 162
(Nadey).) “‘Whether a challenged statement is hearsay is always
the threshold question’ in analysis of a Crawford claim.” (Ibid.)
“Hearsay is defined as ‘a statement that was made other than by
a witness while testifying at the hearing and that is offered to
prove the truth of the matter stated.’” (Ibid.) “Documents such
as letters or reports are very often hearsay because they are
prepared out of court and generally offered to prove the truth of
their contents.” (Ibid.)
Photographs are different. (Nadey, supra, 16 Cal.5th at
p. 162.) “A ‘statement’ for hearsay purposes is defined as the
‘oral or written verbal expression or . . . nonverbal conduct of a
person.’” (Ibid.) “Accordingly, ‘[i]t is clear that the admission of
autopsy photographs, and competent testimony based on such
photographs, does not violate the confrontation clause.’” (Id. at
p. 163.) A significant part of Dr. Miller’s testimony was based on
autopsy photographs of Bell and Jones. He explained what the
photographs depicted and used them to discuss Bell’s and Jones’s
gunshot wounds. The photographs were not hearsay, nor was
Dr. Miller’s testimony based on his examination of them.
However, the portions of Dr. Miller’s testimony relating
what Dr. Whiteman and Dr. Su wrote in their reports were
different. (Nadey, supra, 16 Cal.5th at p. 163.) “A ‘hearsay
problem arises when an expert simply recites portions of a report
prepared by someone else, or when such a report is itself
admitted into evidence. In that case, out-of-court statements in
the report are being offered for their truth.’” (Ibid.) Dr. Miller’s
testimony about the contents of the autopsy reports included
Dr. Whiteman’s and Dr. Su’s conclusions as to cause of death. To
the extent Dr. Miller was “simply relaying the contents of the
26
reports to the jury, his testimony constituted hearsay.” (Id. at
pp. 163–164.)
Assuming the hearsay from the reports and Dr. Miller’s
statements were testimonial within the meaning of Crawford,
any confrontation clause error was harmless beyond a reasonable
doubt. (Nadey, supra, 16 Cal.5th at p. 164, citing Chapman v.
California (1967) 386 U.S. 18, 24.) While Dr. Miller did not offer
his own opinion as to cause of death for Bell or Jones, his
testimony based solely on the photographs related and described
Bell’s and Jones’s gunshot wounds. Dr. Miller testified Jones
suffered multiple gunshot wounds, including a “large defect” to
the head, from a high velocity round which he opined could have
been caused by a 7.62 caliber cartridge. Dr. Miller further
testified Bell suffered a gunshot wound that entered her body
through her right arm and exited her body through her left mid-
to upper-back. We reject Rand’s unsupported assertion that the
jury would not expect such a gunshot wound to be fatal. The jury
thus had ample admissible evidence of the gunshot wounds and
to establish causes of death.
Moreover, the defense never suggested the causes of death
of either Bell or Jones was anything other than the gunshot
wounds they suffered. The state of Bell’s and Jones’s bodies and
the way they died was not disputed at trial. For example,
eyewitness testimony that Bell was shot, fell to the ground, and
died was uncontroverted. The defense, instead, argued Rand was
not the shooter. Given Rand’s theory of the case and
independently admissible evidence on causes of death, any error
in admitting the autopsy reports and testimony about
Dr. Whiteman’s and Dr. Su’s conclusions about cause of death
was harmless beyond a reasonable doubt. (See Nadey, supra, 16
27
Cal.5th at p. 164.) The contents of the reports, and Dr. Miller’s
testimony concerning them, “had no effect on the jury’s ultimate
determination of [Rand’s] guilt.” (People v. Perez (2018) 4 Cal.5th
421, 457.) We thus conclude Rand was not prejudiced by the
introduction of the autopsy reports or Dr. Miller’s testimony
about their contents.
C. Substantial Evidence Supported Rand’s Convictions
Rand contends there was insufficient evidence to support
the first degree murder convictions of Jones (count 1), Silver
(count 3), and Bell (count 4). We disagree.
First degree murder is the “willful, deliberate, and
premeditated” killing of another human being with malice
aforethought. (§§ 187, subd. (a), 189, subd. (a).) “‘A reviewing
court normally considers three kinds of evidence to determine
whether a finding of premeditation and deliberation is
adequately supported—preexisting motive, planning activity, and
manner of killing—but “[t]hese factors need not be present in any
particular combination to find substantial evidence of
premeditation and deliberation.”’” (People v. Burney (2009) 47
Cal.4th 203, 235.)
We review challenges to the sufficiency of the evidence for
substantial evidence. (People v. Tafoya (2025) 109 Cal.App.5th
868, 892.) “[W]e review the entire record in the light most
favorable to the prosecution to determine whether it contains
evidence that is reasonable, credible, and of solid value, from
which a rational trier of fact could find [the elements of the
crime] beyond a reasonable doubt.” (Ibid.) “‘“Substantial
evidence includes circumstantial evidence and any reasonable
inferences drawn from that evidence.”’” (People v. Navarro (2021)
28
12 Cal.5th 285, 339.) “‘We presume in support of the judgment
the existence of every fact the trier of fact reasonably could infer
from the evidence. [Citation.] If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding.’” (People v.
D’Arcy (2010) 48 Cal.4th 257, 293.) Further, we do not reweigh
evidence or reevaluate a witness’s credibility. (Ibid.)
Motive in gang shootings can be reasonably inferred from
the hatred felt for rival gang members. (People v. Sanchez (2001)
26 Cal.4th 834, 849; People v. Rand (1995) 37 Cal.App.4th 999,
1001–1002.) Here, the evidence showed Rand was a member of
the Main Street Crips, whose rivals were the Family Swan
Bloods. Rand had a tattoo on his arm demonstrating his disdain
for the rival gang. It read, “‘If it flies, it dies,’” expressing a
desire to kill rival Family Swan Bloods. Jones and Hall were
members of the Family Swan Bloods, and Bell was affiliated with
the gang.
Social media evidence was probative of Rand’s involvement
in the murders. The evidence supported a finding that Rand
owned the Hoochie_Killa_Sway account and posted messages
linked to the murders. The account exhibited disrespect for
Family Swan Bloods, called for their murder, and contained
threats to shoot them with a rifle. Moreover, as we will discuss
further, postings claimed responsibility for the killings. There
was also evidence Rand possessed and had access to assault rifles
that fired the type of ammunition used in the murders,
7.62 caliber cartridges.
Additional evidence in the record supports Rand’s
conviction for each of the murders. As to Jones, five days before
29
he was murdered on August 18, 2015, Rand texted Dailey and
asked her to buy him 7.62 caliber cartridge ammunition.
Twenty-four 7.62 caliber cartridge cases were found at the crime
scene, and Jones’s gunshot wounds were consistent with
7.62 caliber cartridges. About a week after the murder, Rand’s
Hoochie_Killa_Sway account bragged about killing Jones and
posted details consistent with the crime scene and murder,
including accurately stating Jones was shot in the head and legs.
Silver and Bell were murdered on January 23, 2016, at a
known hangout of the Family Swan Bloods, Three Star Liquor.
The evidence showed that Gardner, a Main Street Crips member
known as Little JM who was close with Rand, was driving a gray
Jeep Patriot on the day of the shooting. The Jeep was captured
on video at the scene of the shooting when it occurred. Phone
records showed calls between Rand’s and Gardner’s phones about
an hour and a half before the shooting. Google location history
data showed Gardner’s and Rand’s devices traveling from Rand’s
residence on Kornblum Avenue to Three Star Liquor at the time
of the shooting. 7.62 caliber cartridges were again recovered at
the crime scene.
Posts on Rand’s Hoochie_Killa_Sway account bragged
about and took credit for the Silver and Bell murders. One post,
for example, detailed that the shooter got out of the vehicle, shot
Bell, shot and “stood over” Silver, and that Hall ran inside the
liquor store. These details were consistent with surveillance
video of the shooting. The post also mentioned being responsible
for shooting Jones with a rifle and for shooting Mazique at the
same liquor store. There was also messaging after the
January 2016 shooting between the Hoochie_Killa_Sway account
and Walker’s account with Hoochie_Killa_Sway again claiming
30
“choppa boy” had successfully shot up Walker’s neighborhood
with a rifle.
In sum, there was substantial evidence supporting the first
degree murder convictions. The evidence and the manner of each
killing also indicates planning and deliberate intent to seek out
and kill rival gang members.
Rand points out that the jury did not find the firearm
allegations true in connection with the January 23, 2016, liquor
store shooting of Silver and Bell. However, the jury found Rand
guilty of being a felon in possession of a firearm on
January 23, 2016. The prosecution’s gang expert explained that
possession of a firearm was critical in committing a crime such as
going into rival gang territory and targeting rival gang members.
This is sufficient to support Rand’s conviction for first degree
murder. (See People v. Thompson (2010) 49 Cal.4th 79, 115, 118
[evidence defendant planned to murder victim, and provided the
gun used in the murder, supported first degree murder
conviction].) Rand further points to evidence that other Main
Street Crips said they had access to his phone and used it, but
the jury was free to disbelieve this testimony and conclude the
witnesses were not credible.
D. The Trial Court Did Not Err in Excluding Alleged
Third Party Culpability Evidence
Rand contends the trial court erred in excluding evidence of
third party culpability: Dailey’s testimony that her cousin,
Murray, admitted to being involved in the Three Star Liquor
shooting on January 23, 2016, and that evidence recovered from
Murray’s residence revealed black articles of clothing. We
31
conclude the trial court did not abuse its discretion in denying
Rand’s request to introduce the evidence.
1. Additional Background
The defense filed a pretrial motion in limine seeking to
introduce evidence linking Murray to the January 2016 shooting.
Rand asserted that a day or two after the shooting, Dailey saw
Murray at her grandmother’s house, and he was acting
erratically and made comments about being involved in the
shooting. Murray was then killed two days after the liquor store
shooting allegedly in retaliation for his involvement. Shortly
after Murray was killed, police executed a search of his home and
found ammunition, memorial posters depicting Silver that were
taken from outside the liquor store, and a black beanie and ski
mask. The prosecutor opposed the motion.
The trial court held a hearing on the motion at which
Dailey testified. She said Murray was involved in the Main
Street Crips. Murray’s gang nickname was “Baby Bo” or “Baby
Debo,” and Dailey knew a different Main Street Crips member
who went by “Debo.” She said that Debo was killed in
August 2015 and Murray began acting out after his death.
Dailey was familiar with the shooting at Three Star Liquor
in January 2016. According to Dailey, she saw Murray the day
after the shooting and he seemed “worried or scared.” She
claimed Murray said “something about he had did what
happened” and he “had been involved in a shooting at the liquor
store.” When asked by the trial court to state as clearly as she
could what Murray said about his involvement in the shooting,
Dailey replied, “He said that he did something on Avalon at this
store.”
32
The trial court did not allow the defense to present the
evidence. First, the court did not find the alleged statement by
Murray admissible as a declaration against interest because it
was “drenched in vagueness and ha[d] no indicia of reliability.”
Second, the court stated it did not meet the requirements for
third-party culpability. The court found there was no
independent evidence linking Murray to the murders and the
statement did not “eliminate defendant Rand as the shooter.”
Lastly, the court found the probative value of the evidence was
substantially outweighed by the possibility of confusing and
misleading the jury.
2. Legal Standard
To be admissible, “third party evidence ‘need not show
“substantial proof of a probability” that the third person
committed the act; it need only be capable of raising a reasonable
doubt of defendant’s guilt.’” (People v. Dworak (2021) 11 Cal.5th
881, 895 (Dworak).) “At the same time, we do not require that
any evidence, however remote, must be admitted to show a third
party’s possible culpability.” (People v. Hall (1986) 41 Cal.3d 826,
833 (Hall).) “[I]n general, ‘evidence of mere motive or
opportunity to commit the crime in another person, without
more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial evidence
linking the third person to the actual perpetration of the crime.’”
(Dworak, at p. 895.) “[A]lthough a defendant should not be
required to establish the guilt of a third person ‘with that degree
of certainty requisite to sustain a conviction of the latter,’
exculpatory evidence pointing to that person should not be
33
admitted if it ‘simply affords a possible ground of possible
suspicion.’” (Hall, at p. 832.)
In assessing an offer of proof relating to third party
culpability evidence, the court “must decide whether the evidence
could raise a reasonable doubt as to defendant’s guilt and
whether it is substantially more prejudicial than probative under
Evidence Code section 352.” (People v. Bradford (1997) 15
Cal.4th 1229, 1325 (Bradford).) The trial court’s decision to
exclude evidence is reviewed for abuse of discretion. (Dworak,
supra, 11 Cal.5th at p. 895.)
3. Analysis
Assuming Murray’s statement was not inadmissible
hearsay, we conclude the trial court did not abuse its discretion
in excluding the evidence. Murray’s alleged statement that he
did “something” at the liquor store did not link him to the actual
perpetration of the shooting, and there was insufficient
independent evidence placing Murray at the scene of the liquor
store at the time of the murders. Any link between the items
found in Murray’s residence after he was killed and the shooting
rested on speculation. Rand does not argue that the items were
the same items identified in the shooting. He does not cite any
evidence linking the items to the shooting.
Third-party culpability evidence is not admissible where it
shows only that another possesses the motive or opportunity to
commit the crimes. (Dworak, supra, 11 Cal.5th at p. 895.) The
jury would have been required to speculate about Murray’s role
in the shooting. More importantly, the evidence did not preclude
the jury from finding Rand was the actual perpetrator. (People v.
Brady (2010) 50 Cal.4th 547, 559, fn. 5 [evidence not material to
34
defendant’s culpability because it did not create “a lingering
doubt by suggesting someone other than defendant was
responsible for the murder”].) The prosecution’s theory of the
shooting did not exclude the possibility that other participants
assisted in some capacity. Consequently, the evidence was
insufficient to raise a reasonable doubt of Rand’s guilt for the
murders.
Additionally, the trial court reasonably concluded that the
probative value of the evidence was substantially outweighed by
the risk that it would cause undue delay, prejudice, or confusion.
(See People v. Turner (2020) 10 Cal.5th 786, 817 [“[w]e have
repeatedly upheld the exclusion of third party culpability
evidence when the third party’s link to a crime is tenuous or
speculative”]; People v. Lewis (2001) 26 Cal.4th 334, 373
[“evidence is irrelevant if it produces only speculative
inferences”].)
In any event, any error in excluding the evidence was
harmless. It was not reasonably probable that the verdict would
have been more favorable to the defense had the trial court
admitted the evidence concerning Murray. (Bradford, supra, 15
Cal.4th at p. 1325, citing People v. Watson (1956) 46 Cal.2d 818,
836.) Because the evidence showed more than one person was
involved in the January 2016 Three Star Liquor shooting,
Murray’s alleged involvement would not undermine the
significant evidence linking Rand to the crime scene and
shooting. (See Hall, supra, 41 Cal.3d at p. 835.) For the same
reasons, we reject Rand’s contention that the exclusion of the
evidence deprived him of his right to present a defense or due
process. (Dworak, supra, 11 Cal.5th at p. 896; People v. Gonzales
(2012) 54 Cal.4th 1234, 1261 [“the exclusion of weak and
35
speculative evidence of third party culpability does not infringe
on a defendant’s constitutional rights”].)
E. The Trial Court Did Not Err by Excluding Evidence
of a Witness’s Alleged Prior Inconsistent Description
of a Shooter
Rand contends the trial court violated his Sixth
Amendment right to present a defense. According to Rand, the
court improperly excluded evidence that the person who
attempted to shoot Walker on September 20, 2015, did not look
like him. We disagree.
1. Additional Background
A police report concerning the attempted shooting of
Walker on September 20, 2015, described the suspect as having
braids. Rand asserts that a percipient witness to the shooting,
Cardenas, therefore must have told Officer Avila or Gundell that
the shooter had braids. Rand denied that he ever had braids.
During cross-examination, Cardenas stated he did not tell the
officers that the shooter had braids because he “never saw that
person.” When questioned by the defense, Officer Avila testified
he did not recall Cardenas describing the shooter as having
braids. Officer Avila said he conveyed the information Cardenas
gave him to Officer Gundell so that he could put it in a police
report. Officer Gundell testified he briefly spoke with Cardenas
but did not recall the conversation and did not recall Cardenas
giving any description of the shooter.
The trial court held a sidebar after the prosecutor objected
to defense counsel asking Officer Gundell whether he wrote a
report after speaking with Officer Avila. After the court stated it
36
had a “problem” with the testimony because counsel was
inferring the description in the report came from Cardenas, the
defense concluded its questioning but requested to keep Officer
Gundell on call.
The following day, defense counsel argued the evidence was
admissible under Evidence Code section 1237 as a past
recollection recorded. The defense pointed out that Detective
Romero testified that Cardenas told the detective in June 2017,
as part of Detective Romero’s investigation of the Jones murder,
that the shooter in the September 2015 incident appeared to have
braids, though Cardenas was not sure. The prosecutor, however,
asserted the description in the police report the defense was
relying on was unattributed to any declarant.
The trial court determined defense counsel did not satisfy
Evidence Code section 1237’s elements. The court reviewed the
police report and said that “the People are completely 100 percent
correct that that particular description of the suspect is not
attributed to anybody. . . It says nowhere in the police report that
‘we got this description from Mr. Cardenas.’”
2. Analysis
In arguing that the trial court’s ruling violated his right to
present a defense, Rand relies on Chambers v. Mississippi (1973)
410 U.S. 284 (Chambers) and Green v. Georgia (1979) 442 U.S. 95
(Green). Chambers and Green are distinguishable.
In Chambers, the defendant was charged with murder.
The defendant sought to introduce the testimony of three
different people that, shortly after the crime, another man named
McDonald confessed to committing the murder. McDonald also
wrote a sworn confession. (Chambers, supra, 410 U.S. at
37
pp. 287–289.) After McDonald repudiated the sworn confession,
the trial court refused to allow the defendant to treat McDonald
as an adverse witness because Mississippi law prohibited
impeaching one’s own witness. (Id. at pp. 291, 295.) The trial
court also rejected on hearsay grounds the defendant’s attempt to
introduce the testimony of the three witnesses to whom
McDonald had admitted committing the murder. (Id. at pp. 292–
293.) The Supreme Court reversed the conviction, finding the
defendant was deprived of a fair trial. (Id. at p. 302.) The Court
found the statements at issue were made “under circumstances
that provided considerable assurance of their reliability” and
were “well within the basic rationale of the exception for
declarations against interest.” (Id. at pp. 300, 302.) “In these
circumstances, where constitutional rights directly affecting the
ascertainment of guilt are implicated, the hearsay rule may not
be applied mechanistically to defeat the ends of justice.” (Id. at
p. 302.)
In Green, the Supreme Court determined the exclusion of
hearsay evidence under circumstances similar to Chambers
violated the defendant’s right to a fair trial on the issue of
punishment. At the penalty phase of trial, the court excluded a
third-party account of a confession from a co-defendant, because
the court found the evidence constituted hearsay. (Green, supra,
442 U.S. at p. 96.) Green held, “Regardless of whether the
proffered testimony comes within Georgia’s hearsay rule, under
the facts of this case its exclusion constituted a violation of the
Due Process Clause of the Fourteenth Amendment.” (Id. at 97.)
“The excluded testimony was highly relevant to a critical issue in
the punishment phase of the trial, [citations] and substantial
reasons existed to assume its reliability.” (Ibid.)
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Chambers and Green involved spontaneous statements
against the speaker’s penal interest, which “[are] inherently
reliable.” (People v. Dixon (2007) 153 Cal.App.4th 985, 999.) The
unattributed description in the police report in this case does not
bear the same indicia of reliability. There is no showing, for
example, that Cardenas’s alleged description of the shooter in the
police report was made against Cardenas’s penal interest.
Further, the record shows Officers Avila and Gundell spoke to
multiple people after responding to the scene of the shooting,
including Walker, his cousin, Cardenas, and the person who
provided the video of the shooting. The description in the report
was not attributed to any specific declarant, so it is unclear
whether Cardenas provided the description.
Chambers and Green “require substantial indications of
reliability,” and “‘[t]he same lack of reliability that makes . . .
statements excludable under state law makes them excludable
under the federal Constitution.’” (People v. Butler (2009) 46
Cal.4th 847, 866–867.) Further, “Chambers specifically confined
its holding to the ‘facts and circumstances’ presented in that
case; . . . the ruling did not ‘signal any diminution in the respect
traditionally accorded to the States in the establishment and
implementation of their own criminal trial rules and
procedures.’” (United States v. Scheffer (1998) 523 U.S. 303, 316;
see also Green, supra, 442 U.S. at p. 97 [“In these unique
circumstances, ‘the hearsay rule may not be applied
mechanistically to defeat the ends of justice’” (italics added)].)
“Application of ‘the ordinary rules of evidence do not
impermissibly infringe on the accused’s right to present a
39
defense.’”7 (People v. Westerfield (2019) 6 Cal.5th 632, 705.)
Therefore, the trial court’s ruling was not constitutional error.
We note evidence that the person who attempted to shoot
Walker in September 2015 appeared to have braids was admitted
at trial. During cross-examination, Detective Romero testified
that Cardenas told her in 2017 that he thought the
September 2015 shooter appeared to have braids, though he was
unsure. The jury thus had the opportunity to consider the
possibility that Cardenas described the shooter as having braids.
Rand fails to establish that the trial court’s exclusion of similar
testimony from Officer Gundell constituted prejudicial error.
F. The Trial Court Erred in Failing to Dismiss the Gang
Special Circumstance
At sentencing, the trial court dismissed the section 186.22
gang enhancement because “the People did not prove the gang
allegation under the new statutory requirements of AB[ ]333, in
which they have to show that the benefit to the gang is more than
reputational . . . .” The court declined the defense’s request to
dismiss the section 190.2 gang special circumstance. Rand
contends the court erred by failing to dismiss the gang special
circumstance after dismissing the gang enhancement. The
People concede the evidence was insufficient to sustain the
section 190.2 special circumstance. We agree.
Section 190.2, subdivision (a)(22) provides, “The penalty for
a defendant who is found guilty of murder in the first degree is
7 Rand does not make any showing with citation to authority and
reasoned argument that the trial court erred in finding the evidence
did not satisfy the requirements for admission as a prior inconsistent
statement under Evidence Code section 1237.
40
death or imprisonment in the state prison for life without the
possibility of parole if [¶] . . . [¶] The defendant intentionally
killed the victim while the defendant was an active participant in
a criminal street gang, as defined in subdivision (f) of
Section 186.22, and the murder was carried out to further the
activities of the criminal street gang.” Proof of the existence of a
criminal street gang as defined in section 186.22, subdivision (f)
is a prerequisite to proving the gang-murder special
circumstance. (People v. Rojas (2023) 15 Cal.5th 561, 565 (Rojas);
People v. Rodriguez (2022) 75 Cal.App.5th 816, 823.)
Prior to Rand’s trial, the Legislature enacted Assembly
Bill 333, which made multiple changes to section 186.22. (Rojas,
supra, 15 Cal.5th at pp. 566–567.) The changes, “as incorporated
into the gang-murder special circumstance, retroactively apply to
cases that are not yet final.” (In re A.M. (2024) 102 Cal.App.5th
557, 569.) Following Assembly Bill 333, section 186.22,
subdivision (f) defines a “‘criminal street gang’” as “an ongoing,
organized association or group of three or more persons . . .
having as one of its primary activities the commission of one or
more of the criminal acts enumerated in subdivision (e), having a
common name or common identifying sign or symbol, and whose
members collectively engage in, or have engaged in, a pattern of
criminal gang activity.” Subdivision (e) of section 186.22 defines
“‘pattern of criminal gang activity’” as committing offenses that
benefit a gang in a way that is “more than reputational.”
The prosecution’s gang expert did not testify the murders
Rand committed benefited his gang in any way that was more
than reputational. The evidence was thus insufficient under the
law as amended after trial by Assembly Bill 333 to sustain the
special circumstance finding under section 190.2. (Rojas, supra,
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15 Cal.5th at p. 580; In re A.M., supra, 102 Cal.App.5th at
p. 570.) Accordingly, we reverse the gang special circumstance
findings and remand for retrial of the allegations at the option of
the prosecution. (People v. Hin (2025) 17 Cal.5th 401, 464
[“retrial is permitted where the appellate court finds only that
the evidence was insufficient under the law as amended posttrial
by Assembly Bill 333”].)
DISPOSITION
We reverse the true findings on the section 190.2,
subdivision (a)(22) gang special circumstance. On remand, the
prosecution shall have the option to retry Rand on the gang
special circumstance. If the prosecution declines to do so, the
trial court shall resentence Rand accordingly. The judgment of
conviction is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MORI, J.
We concur:
ZUKIN, P. J.
TAMZARIAN, J.
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