P. v. Wandick CA5

Filed 10/19/26 P. v. Wandick CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F087067
Plaintiff and Respondent,
(Super. Ct. Nos. BF190036A,
v. BF190036B)

TAEVIYON WANDICK et al.,

Defendants and Appellants. OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant Taeviyon Wandick.
Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant
and Appellant Denell James Martray King.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In connection with the shooting death of Daniell Williams on a Bakersfield
highway, a jury convicted defendants Taeviyon Wandick and Denell James Martray King
(collectively, defendants) of the following offenses:
Count 1: First degree premeditated murder, committed by means of discharging a
firearm from a motor vehicle, and for the benefit of a criminal street gang, during the
commission of which a principal personally used and discharged a firearm.1 (§§ 187,
subd. (a), 186.22, subd. (b)(1), 190.2, subd. (a)(21), 12022.53, subds. (d), (e)(1).)
Count 2: Shooting at an occupied motor vehicle, committed for the benefit of a
criminal street gang, during the commission of which a principal personally used and
discharged a firearm. (§§ 186.22, subd. (b)(1), 246, 12022.53, subds. (d), (e)(1).)
Count 3: Active participation in a criminal street gang. (§ 186.22, subd. (a).)
Count 4: Conspiracy to commit murder, committed for the benefit of a street
gang, during the commission of which a principal personally used and discharged a
firearm. (§§ 182, subd. (a)(1), 186.22, subd. (b)(1), 12022.53, subds. (d), (e)(1).)
Count 5: Gang conspiracy. (§ 182.5.)
Following a bifurcated court trial, the court found each defendant had suffered one
prior serious felony conviction that also constituted a “strike” within the meaning of the
Three Strikes law. (§§ 667, subds. (a), (c)–(j), 1170.12, subds. (a)–(e).) Additionally, the
court found several aggravating sentencing factors true. (Cal. Rules of Court, rule
4.421(a)(1)–(2), (b)(1)–(3).)

1 A gang special circumstance on count 1 was found not true by the jury. (Pen.
Code, § 190.2, subd. (a)(22).)
All further statutory references are to the Penal Code unless otherwise indicated.

2.
Each defendant was sentenced on count 1 to a term of life without the possibility
of parole, plus an additional term of 25 years to life for the firearm enhancement, and a
five-year term for the prior serious felony conviction. Sentence on the remaining counts
and enhancements was imposed and stayed pursuant to section 654.
Defendants raise numerous arguments on appeal. Wandick’s arguments, which
are joined by King except where otherwise indicated below, are as follows: (1) the trial
court abused its discretion in denying defendants’ motions to bifurcate trial of the gang
special circumstance and gang-related firearm enhancements, and in failing to address
bifurcation of trial on the gang conspiracy offense2; (2) the court abused its discretion in
admitting gang-related evidence, including evidence of defendants’ prior offenses, to
prove motive and intent; (3) the evidence is insufficient to support a finding of intent to
kill as required to support defendants’ convictions for first degree murder, conspiracy to
commit murder, and the drive-by murder special circumstance and, relatedly, the
evidence is insufficient to support a finding that Wandick was the shooter; (4) the
evidence is insufficient to support the jury’s true finding on the drive-by murder special
circumstance because the evidence shows the shooter shot at an occupied motor vehicle,
as opposed to directly at an individual, as defendants contend is required by the
applicable statute; (5) the true findings on the gang enhancements and gang-related
firearm enhancements are insufficiently supported because the evidence fails to prove the
offenses provided a common benefit to the gang that was more than reputational and that
defendants intended to benefit, promote, or further the activities of the gang; (6) the gang
conspiracy conviction is unsupported by substantial evidence that defendants committed
the target offense charged, i.e., a violation of section 26100, subdivision (c); (7) the jury
was erroneously instructed on an element of the target offense supporting his gang

2 Wandick also argues the court denied defendants’ request to bifurcate trial of the
substantive gang offense. As we explain below, however, the court granted this request,
which defendants subsequently withdrew.

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conspiracy conviction; (8) the convictions for active participation in a criminal street
gang must be reversed because this offense is a lesser included offense of gang
conspiracy; (9) Wandick was prejudiced by the cumulative effect of the court’s errors
with respect to bifurcation, admission of gang-related evidence, and instruction on the
target offense for gang conspiracy; (10) if the gang conspiracy convictions are affirmed,
the sentences must be modified because they were calculated based on a target offense of
murder, rather than a violation of section 26100, as charged; and (11) if we affirm the
conviction on count 2 and the related true findings on the enhancements, defendants must
be resentenced on count 2 because they were sentenced pursuant to an alternate penalty
provision set forth in section 186.22, subdivision (b)(4) that was neither pled nor proved
and, in any event, the sentence violates section 12022.53, subdivision (e)(2).
In addition to joining most of Wandick’s arguments, King separately argues
(1) the sentence on count 2 must be reduced because it violates section 12022.53,
subdivision (e)(2); (2) the instructions erroneously allowed the jury to convict him of
murder and conspiracy to commit murder under the natural and probable consequences
doctrine; (3) the court prejudicially erred in admitting gang evidence to prove motive and
intent; (4) substantial evidence does not support the jury’s finding of intent to kill, as
required to support his convictions for murder and conspiracy to commit murder, as well
as the true finding on the special circumstance; and (5) the true finding on the gang
enhancements is not supported by substantial evidence that the offenses provided a
nonreputational benefit to the gang.
We agree the gang conspiracy convictions are unsupported by substantial evidence
that defendants committed the target offense charged, i.e., a violation of section 26100,
subdivision (c). We therefore modify the verdicts on count 5 to reflect convictions for
gang conspiracy based on a lesser included target felony violation of section 26100,
subdivision (d). As such, we also agree that resentencing is required on this count and
vacate the sentences. We additionally agree that the sentences on count 2 must be

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vacated because the alternate penalty provision set forth in section 186.22, subdivision
(b)(4) was neither pled nor proved. Additionally, imposition of both the gang
enhancement and firearm enhancement on this count violates the dual use prohibition set
forth in section 12022.53, subdivision (e)(2). We remand for resentencing and reject
defendants’ remaining contentions. In all other respects, the judgments are affirmed.
BACKGROUND
On May 5, 2022, at approximately 6:34 p.m., Daniell Williams was fatally shot
multiple times while driving a black Chevrolet Camaro convertible on eastbound
Highway 58 in Bakersfield.
I. The Shooting
At approximately 6:19 p.m. on May 5, 2022, Jesse U.3 drove from a mall in
Bakersfield and onto northbound Highway 99 with his wife Selena U. as his passenger.
Jesse noticed a black Camaro entering the highway with them. As Jesse merged onto
eastbound Highway 58, the black Camaro passed him on the left, in the far-left lane,
traveling approximately 100 miles per hour. A few seconds later, a light-colored Toyota
Camry passed him, also driving at a high rate of speed. The Camry caught up to the
Camaro and moved to the left of the Camaro, onto the dirt shoulder between the left lane
and the center divider of the highway. The cars were still traveling around 95 to 100
miles per hour. The passenger side of the Camry was even, or close to even, with the
driver’s side of the Camaro. The Camry swerved toward the Camaro then moved back to
the left. The Camaro then appeared to lose control, moving suddenly to the far-right side
of the highway before veering back to the far left of the highway and crashing into the
center divider. Neither Jesse nor Selena heard gunshots. After the crash, the Camry kept

3 Pursuant to California Rules of Court, rule 8.90, we refer to some persons by
their first names or initials. No disrespect is intended.

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driving. Jesse pulled over at the center divider and saw one person inside the Camaro
slumped over the passenger seat.
Nicole E. was driving in the left lane of eastbound Highway 58 when she saw a
black Camaro coming up behind her at a high rate of speed. Nicole estimated she was
driving 80 to 85 miles per hour when she first saw the Camaro in her rearview mirror.
Nicole moved to the middle lane to allow the Camaro to pass and noticed a light-colored
Camry driving on the dirt shoulder to the Camaro’s left. The Camry was weaving and
eventually forced the Camaro into the middle lane behind Nicole. Nicole sped up to 100
miles per hour and the Camaro kept pace behind her. The Camry pulled into the left lane,
to the left of the Camaro, and Nicole heard five to seven gunshots. The Camaro swerved
to the left and crashed into the center divider. The Camry sped up to the right and exited
at Martin Luther King, Jr., Boulevard.4
Nicole saw four males in the Camry. She described the driver as a Black male
with shoulder-length dreadlocks who was wearing a white T-shirt. The man in the rear
driver-side seat also wore a white T-shirt and had cornrows with braids. The person in
the rear passenger seat looked “like a little kid.” She did not get a good look at the
person in the front passenger seat and could not describe him. Nicole initially testified
that all the windows of the Camry were rolled down. However, she later recalled that the
right-rear window of the Camry was rolled up and all the other windows were down.
Nicole called 911 to report a shooting and crash on Highway 58 involving a newer
black Camaro and an older silver Corolla occupied by four African-American males, two
of whom had dreadlocks. Nicole reported that she saw shots fired from the Corolla at the
Camaro, which then crashed and went over the center median, but she did not see who

4 At the time of the murder, Martin Luther King, Jr., Boulevard was named
Cottonwood Road. For consistency, we use the current street name.

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fired the shots. She reported the first three digits of the Corolla’s license plate were
“4CW.”
Meanwhile, Jason M. called 911 to report a serious accident on eastbound
Highway 58 involving a single black vehicle occupied by only the driver. Jason reported
that the car, which appeared to have bullet holes, hit the center divider and the driver,
who did not appear to be breathing, may have been shot.
II. GPS Data
Wandick and King were both wearing GPS ankle monitors at the time of the
offense. The devices were monitored through a computer program that determined the
monitor’s location once every minute and provided the latitude and longitude of the
monitor within a 50-foot radius.
Wandick’s GPS data from May 5, 2022, showed Wandick was at the mall at
6:26:20 p.m. At 6:33:01 p.m., he was on eastbound Highway 58. At 6:34:01 p.m., he
was on an eastbound off-ramp from Highway 58, heading toward Martin Luther King,
Jr., Boulevard. King’s GPS data from May 5, 2022, similarly showed King leaving the
mall at approximately 6:26:04 p.m., traveling on eastbound Highway 58 at 6:33:06 p.m.,
and at the Martin Luther King, Jr., Boulevard off-ramp at 6:34:06 p.m. The ankle
monitors showed that Wandick and King traveled to an address on Larcus Avenue after
exiting the highway.5
III. Video Evidence
Surveillance video from a business near the Martin Luther King, Jr., Boulevard
off-ramp showed a Toyota Camry that matched the description of the suspect vehicle
exiting Highway 58 near the time of the shooting. Video from another business to the

5 Wandick was later located and arrested at the Larcus Avenue address on May 7,
2022. King was arrested the same day at a different location. The Camry eventually was
located in a residential neighborhood about two blocks away from the Larcus Avenue
address on May 16, 2022.

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north of the highway exit showed the tan Camry traveling north on Martin Luther King,
Jr., Boulevard at a high rate of speed at 6:34 p.m.
Surveillance video from the mall showed a late 1990’s model tan Toyota Camry
entering the parking lot at 5:42 p.m. At 6:24 p.m., three individuals, identified as
Wandick, King, and Christopher Thompson, exited the mall and walked to the tan
Camry. King had dreadlocks and wore a white tank top and light-colored pants; he got
into the driver’s seat. Wandick wore a red shirt, light-colored pants, and white shoes; he
got into the front passenger seat. Thompson wore a black T-shirt, black shorts, gray or
white socks, and black shoes; he got into the rear driver-side seat.
Meanwhile, at approximately 6:26 p.m., the Camaro entered the parking lot and
drove to the front of a large retailer, where a passenger exited the vehicle. While the
Camaro was stopped, the Camry passed by in the opposite direction, with the front
passenger window open and the rear passenger window closed. As the Camry passed by,
Wandick turned back and appeared to turn his attention toward the Camaro. The Camry
stopped in a parking stall. At 6:29 p.m., the Camaro drove away from the retailer toward
the mall exit, followed by the Camry. The Camry stopped at a stop sign and let several
cars pass before Wandick leaned forward and pointed toward the Camaro. King
accelerated through the intersection. King then proceeded through a red light and onto
northbound Highway 99, following the Camaro.
Law enforcement was not able to decipher the Camry’s license plate number from
the mall videos. However, law enforcement attempted to look for traffic camera images
to locate the Camry’s license plate number. Ultimately, a traffic camera photograph
taken on May 3, 2022, captured a Camry that appeared similar to the suspect vehicle,
with a license plate beginning 4CDZ. Law enforcement contacted the registered owner
of the Camry with the license plate beginning 4CDZ and learned that it had been sold on
April 27, 2022, to an older African-American man named Marcellas through a listing on
OfferUp. A younger African-American male with longer hair or dreadlocks waited in the

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car during the sale. King’s father’s name is Marcellas. An OfferUp account under the
name Marcellas relisted the Camry for sale on May 6, 2022.
IV. Physical Evidence
Williams was found slumped over the center console of the Camaro. He had a
gunshot wound to his left temple, another gunshot wound to his left shoulder, and a third
gunshot wound to his right thigh behind the knee. An autopsy determined the cause of
death was multiple gunshot wounds.
The Camaro had six bullet holes: four in the driver’s door and two in the rear-
quarter panel. Four spent rounds and a copper jacket were found inside the driver’s door.
Four nine-millimeter shell casings were found on the highway west of where the Camaro
crashed.6 Three additional shell casings were found under the front passenger seat of the
Camry. All seven shell casings were fired from the same gun.
V. DNA Evidence
Multiple DNA samples were taken from the Camry.
A DNA profile obtained from a swab of the interior driver’s door handle and pull
handle was a mixture from at least three contributors. Thompson was excluded as a
potential contributor. A comparison with Wandick’s DNA sample was inconclusive.
King could not be excluded as a contributor. King was 200 octillion times more likely to
have contributed to the DNA mixture on the handle than a random unrelated African-
American person, 11 nonillion times more likely to have contributed than a random
Caucasian person, and 9.8 nonillion times more likely to have contributed than a random
Hispanic person.
A DNA profile obtained from a swab of the steering wheel also was a mixture
from at least three contributors. Thompson was excluded as a potential contributor. The

6 A fifth nine-millimeter shell casing found in the same area appeared to be old
compared to the other casings and unrelated to the incident.

9.
results as to Wandick were inconclusive. King could not be excluded as a potential
contributor. King was 35 trillion times more likely to have contributed to the DNA than
a random African-American person, 82 trillion times more likely to have contributed than
a random Caucasian person, and 12 trillion times more likely to have contributed than a
random Hispanic person.
A DNA profile obtained from a swab of the interior front passenger door and pull
handle also was a mixture from at least three contributors. Thompson was excluded as a
potential contributor. The results as to Wandick were inconclusive. King could not be
excluded as a potential contributor to the DNA mixture on the interior front passenger
door handle. King was 250 trillion times more likely to be a contributor to the DNA than
a random African-American person, 8.4 quadrillion times more likely to be a contributor
than a random Caucasian person, and 11 quadrillion times more likely to be a contributor
than a random Hispanic person.
A DNA profile obtained from a swab of the interior rear driver’s door and pull
handle also was a mixture from at least three contributors. Wandick was excluded as a
potential contributor. The results as to King were inconclusive. Thompson could not be
excluded as a contributor. Thompson was 66 quadrillion times more likely to be a
contributor to the DNA mixture than a random African-American person, 830 quintillion
times more likely to be a contributor than a random Caucasian person, and 560 quintillion
times more likely to be a contributor than a random Hispanic person.
VI. Gang Evidence
A. General Gang Evidence
Bakersfield Police Officer T. Braughton testified as an expert in criminal street
gangs. He testified regarding the operations of gangs generally before testifying more
specifically regarding the Eastside Crips, Westside Crips, and Country Boy Crips.
Reputation is important to a gang. Gang members attempt to instill fear and
respect in rival gangs because being known as a strong gang makes it less likely rivals

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will move into their territory, interfere with the gang’s primary activities, or “mess with”
the gang. If a gang is feared, it has more freedom to commit crimes without being
reported, which benefits the gang financially. A gang can instill fear in the community
by conducting violent criminal activities against members of the public or rival gang
members in public areas, or by showing force through a large number of gang members
in areas known to be a stronghold. These activities are often posted to social media. The
community is often aware of the gang-related nature of public violence, which deters
reporting.
Gangs have members, who are active participants and “put in work” for the gang;
associates, who “hang[] around” and assist members of the gang with the gang’s primary
activities; and affiliates, who may be family or friends of gang members, but who do not
participate in gang activity. Associates and affiliates may be perceived by rivals as
members of the gang. Close family members of gang members likewise may be
perceived by rivals to be a gang member or associate, and may be targeted by rivals as a
known associate of a gang member. Gang rivals are expected to fight or shoot each other
when they cross paths in public. Gang members “primarily use social media” to
determine whether someone is a member of a rival gang and will use social media to
belittle, “trash talk,” and disrespect each other. Gang members will also question
unfamiliar individuals within their territory to determine if they are from a rival gang
area.
Generally, gangs make money through illegal activities such as pimping and
pandering, the sale of illegal narcotics and firearms, and the sale of items obtained
through theft, burglary, and robbery. Most gangs have a defined territory but members
need not live within that territory.
Braughton explained that the Eastside Crips had been in the Bakersfield area since
approximately the 1980’s and had since branched into five different subsets. Two of the
primary rivals of the Eastside Crips are the Westside Crips, including the Young Lokes

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subset, and the Country Boy Crips, including the Watts and Lotus subset and the Reese
and Cheatham subset. There have been numerous instances of violent crimes and a long
history of shootings and homicides between the Eastside Crips and Country Boy Crips.
There also have been incidents involving violence between the Eastside Crips and the
Westside Crips.
The Eastside Crips have a defined territory and use hand signs to identify
themselves and to disrespect rival gangs. Active participants of the gang generally have
monikers. The primary activities of the Eastside Crips include murder, firearms
possession, assault, robbery, theft, and drug possession and sales. Braughton explained
that firearm possession adds to a gang member’s reputation. A gang member can use a
firearm to move freely throughout the gang’s territory, and to protect themselves while in
a rival gang’s territory. Braughton opined that the Eastside Crips engage in a pattern of
criminal gang activity.
The mall where defendants first passed by the victim is in a Country Boy Crips
area, but not specifically within their territory.
B. Evidence Regarding Wandick and King
The parties stipulated that, on May 5, 2022, King and Wandick were active
participants in the Eastside Crips, a criminal street gang in Bakersfield, and knew
Eastside Crips members engage in or have engaged in a pattern of criminal gang activity.
Braughton viewed King’s and Wandick’s social media accounts by using a “ruse”
or fake Instagram account that allowed him to observe others’ accounts. Wandick’s
account, which was publicly accessible, bore the account name “Clannmemba1100.” The
account had a picture of Wandick and King together. The account also had a video of
Wandick saying, “Eastside Crips, we the hardest gang out here,” and “We the most hated
on, Eastside Crips.” (Boldface omitted.)
King’s Instagram account profile name was “YC_DA_Gunman.” King’s moniker
is “YC” or “Young Coke.” King’s profile contained the phrase, “Rest in peace Lil Will”

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(boldface omitted), an apparent reference to Wandick’s deceased brother, who was also a
member of the Eastside Crips. King’s profile page also contained the hashtags “6K,”
“32K,” and “EBK.” Braughton explained that “6K” meant “6th Street killer,” which
disrespected the 6th Street subset of the Westside Crips. The phrase “6K” is often used
by Eastside Crips on social media and in tattoos. He testified that the “32” in “32K”
referred to the third and second letters of the alphabet, and the phrase therefore meant
“Country Boy killer.” He explained that “EBK” is often used by Crips in California to
mean “everybody killer.”
King’s account also had a picture of King making a hand sign that indicated
disrespect for the Watts and Lotus subset of the Country Boy Crips. Another photograph
showed King and Wandick together, with King making the same hand gesture. King’s
account also had another copy of the same photograph of King and Wandick, but with
emojis and the wording, “Free dem 11 Street demons.” Braughton explained “11 Street”
refers to a subset of the Eastside Crips.
King also had a YouTube account under the name “YC Dagunman.” One video
on this account included King, Wandick, and other known Eastside Crips gang members.
In the video, Wandick made a hand gesture disrespecting Westside Crips.
Braughton testified that Thompson was also a member of the Eastside Crips who
goes by the moniker “Baby Kaytta.” Thompson had an Instagram account under the
name “Kaytta Frm SB” that contained various references to the Stroller Boy subset of the
Eastside Crips. The account contained photographs showing Thompson making hand
signs associated with the Stroller Boy subset, as well as writing referring to the Midcity
Crips and to freeing incarcerated gang members.
On February 28, 2022, an officer saw King and Wandick together in the parking
lot of a market in Bakersfield. On March 3, 2022, a different officer observed King and
Thompson, along with other Eastside Crips gang members, in the area of an Eastside
Crips “hood day” celebration in Bakersfield. Officers explained that a hood day is a

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celebration of the gang. On March 12, 2022, at approximately 1:00 a.m., an officer
responded to an incident at a reception hall in Bakersfield. Video from that venue
showed a gathering of known Eastside Crips members, including King, Wandick, and
Thompson.
C. Evidence Regarding Williams
Williams lived close to, but outside of, the traditional territory of the Country Boy
Crips. He had a cousin who is a member of the Eastside Crips.
Using a ruse or fake account, Bakersfield Senior Police Officer J. Orozco located a
SnapChat account belonging to Cecil H., a Country Boy Crips gang member. The day
after the shooting, Orozco found, on Cecil’s account, a video paying homage to Williams,
and to Cecil’s deceased brother Christian, another Country Boy Crips member who had
recently been killed. Text associated with the video suggested the video was associated
with the Country Boy Crips. Braughton testified that Cecil’s inclusion of Williams in the
video showed Williams’s association with Country Boy Crips members or associates, and
suggested Williams also might be perceived as a member or associate. Cecil’s video
tagged Williams’s SnapChat account, which bore the name “D Will SS.” “SS” is a
reference to “south side,” which is a typical identifier used by the Country Boy Crips.
Williams’s social media accounts were private so Braughton could not view them,
beyond the profile picture and some limited information.
Williams had an identical twin brother named Daleno or Daleon.7 Daleon was
fatally shot in his residence on March 2, 2017. Daleon had a publicly accessible
Facebook account that included a profile picture with the Camaro Williams was driving
at the time of his death. Daleon’s Facebook account also contained several posts
indicating Country Boy Crips membership or association, particularly with the Watts and

7 Both names are used in the record. For clarity, we refer to Williams’s brother as
Daleon.

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Lotus subset. Daleon also had a publicly accessible Instagram page with posts showing
association with the Country Boy Crips and Watts and Lotus subset. Braughton opined
that Daleon’s publicly accessible accounts could lead to Williams being perceived as a
member or associate of the Country Boy Crips.
In relation to Daleon’s murder, law enforcement spoke with Eastside Crips and
obtained video footage of interactions Daleon had with others in the days before the
murder. Based on their review of that footage, law enforcement contacted Wandick, who
was noted to have two significant tattoos on his wrist: the letters “WSK,” meaning
Westside killer, and “CBK,” meaning Country Boy killer. (Boldface omitted.)
Braughton conceded there was no evidence that Williams put in work for the gang
or had any significant police contacts. Braughton also conceded he had no evidence that
defendants or other Eastside Crips saw social media associating Williams with the
Country Boy Crips. Braughton was unaware of any instance in which Williams was
known to have disrespected the Eastside Crips, King, Wandick, or Thompson, whether
online or offline. Nonetheless, Braughton noted that the perpetrators of the murder
appeared to be following and targeting the Camaro, which suggested to Braughton that
the perpetrators perceived the driver of the Camaro to be a gang rival. Braughton also
opined it was possible Williams was perceived to be Daleon, if the perpetrators were
unaware that Daleon was killed in 2017.
D. Hypothetical and Benefit to the Gang
Given a hypothetical similar to the facts of the charged offenses, and assuming the
victim was perceived to be a gang rival, Braughton opined that the shooting would
provide a benefit to the Eastside Crips. Braughton explained that targeting a perceived
rival gang member or associate would hurt the rival gang by making the gang weaker,
reducing their power to defend the gang, go on the offensive, or retaliate. Additionally,
public violence would dissuade rival gang members and the public from reporting the
crime or other crimes to the police, due to fear of retaliation. Reduced police

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involvement in the gang’s affairs would benefit the gang. The crimes also promote and
further the activities of the gang by showing the strength of the gang, which can
encourage young people in the community to join the perpetrator’s gang, as opposed to a
rival gang, which is made to look weaker. The reputational benefits the gang receives by
committing these crimes can also benefit the gang financially because it allows the gang
to commit more crimes without interference from law enforcement.
Braughton acknowledged there was no evidence any member of the public refused
to cooperate with law enforcement in this case due to fear of gangs. Indeed, multiple
people spoke with police at the scene of the shooting. Likewise, there was no evidence
that the crimes caused fear in members of the public or rival gangs. Additionally, there
was no evidence that witnesses, youth, or community members understood the crime to
have been gang-related or committed by Eastside Crips. Braughton explained that the
public usually learns of the gang-related nature of a crime over time through word of
mouth and police press releases. Although Braughton was unaware of any media releases
issued in relation to this case, another officer testified that a local news agency put out an
article soon after the shooting describing it as being gang related.
There was no evidence the crimes affected the ability of the Country Boy Crips to
defend their territory. Additionally, Braughton was unaware of any financial benefit to
defendants or the Eastside Crips resulting from the crimes.
E. Predicate Offenses and Other Gang-related Crimes
Law enforcement officers testified regarding several predicate, gang-related
offenses.
1. 2017 Shooting
On April 18, 2017, a shooting took place outside a home on Crestline Road in
Bakersfield. Law enforcement found bullet impact marks on the front of the house near a
window frame, bullet holes in a tree in the front yard, bullets and bullet fragments in the
driveway, and 11 spent nine-millimeter shell casings near the home.

16.
Three individuals were present in the home during the shooting, including a
known active member of the Westside Crips. Video surveillance revealed the incident
involved three shooters, including King and another individual later identified as Kevon
K. King ultimately was convicted in relation to the incident of assault with a
semiautomatic firearm (§ 245, subd. (b)), with a gang enhancement (§ 186.22, former
subd. (b)(1)). Kevon was convicted of assault with a firearm (§ 245, subd. (a)(2)), with a
gang enhancement (§ 186.22, former subd. (b)(1)). Braughton opined that both men were
active members of the Eastside Crips at the time of the shooting. He opined that this
incident involved Eastside Crips assaulting or “going after” perceived rivals and
benefitted the gang by instilling fear in rival gang members and the public, making the
public less likely to cooperate with the police, and aiding the Eastside Crips in engaging
other felonious activities without police interference.
2. 2019 Stabbing
On February 2, 2019, at approximately 1:30 a.m. police responded to a report of a
stabbing that occurred outside of a party in Kern County. The victim was stabbed several
times and later died from his injuries. A video of the incident showed the victim and his
brother fighting multiple people, including three documented members of the Eastside
Crips. Because of the number of attackers, law enforcement could not definitively say
which individual stabbed the victim.
The victim’s Facebook page showed that he was friends with several Westside
Crips gang members. Based on that information, one law enforcement officer testified
that he believed the victim was at least associated with the Westside Crips. However, the
detective assigned to the case testified that neither the victim nor his brother had any
gang association. The detective explained that the fight arose over a dispute regarding
music, and there was speculation that the dispute involved Eastside Crips music versus
Westside Crips music.

17.
The three Eastside Crips members involved in the stabbing were later convicted of
various offenses. One was convicted on two counts of assault with force likely to cause
great bodily injury (§ 245, subd. (a)(4)), with great bodily injury (§ 12022.7, subd. (a))
and gang enhancements (§ 186.22, former subd. (b)(1)). Another was convicted of
voluntary manslaughter (§ 192, subd. (a)), with a gang enhancement (§ 186.22, former
subd. (b)(1)). The third was convicted of assault with force likely to cause great bodily
injury (§ 245, subd. (a)(4)), with a great bodily injury enhancement (§ 12022.7, subd.
(a)), and misdemeanor active participation in a criminal street gang (§ 186.22, subd. (a)).
Braughton opined that the attack benefitted the Eastside Crips by instilling fear in
a rival gang and members of the public, making it less likely that others would retaliate
against them or cooperate with law enforcement. He opined that killing rival gang
affiliates benefits the Eastside Crips by making the rivals weaker and less likely to
retaliate. He explained that hurting or assaulting someone affiliated with the Westside
Crips makes the rival gang weaker and less able to protect its traditional boundaries, and
less likely to retaliate due to that weakness. Despite the detective’s testimony that the
victim and his brother had no gang associations, Braughton testified the incident involved
both Eastside Crips and Westside Crips, because the victim was a perceived rival of the
Eastside Crips based on his social media association with Westside Crips.
3. 2019 Shooting
In June 2019, a Country Boy Crips gang member was shot and killed at a market.
Approximately two weeks later, in the early morning hours of June 23, 2019, another
shooting took place. In relation to that shooting, two victims, both known Eastside Crips
gang members, were transported to two separate hospitals. When a detective went to one
of the hospitals, he saw two other Eastside Crips gang members outside the hospital in
front of the ambulance bay. The detective was notified of a disturbance at the other
hospital that required additional law enforcement assistance to control the crowd. When
the detective arrived at the second hospital, he observed two other Eastside Crips

18.
members leaving in a vehicle. The detective attempted to follow the vehicle but lost
track of it. He then was tasked with patrolling Eastside Crips and rival territories to
attempt to prevent potential retaliation.
The detective eventually encountered the vehicle within Eastside Crips territory
and conducted a traffic stop. The vehicle was searched and a loaded and operable firearm
was found inside. Three individuals were in the vehicle, all of whom had tattoos related
to the Eastside Crips. In relation to the incident, one individual was convicted of being a
felon in possession of a firearm (§ 29800, subd. (a)(1)) and active participation in a
criminal street gang (§ 186.22, subd. (a)). The other two men were convicted of being a
gang member in possession of a loaded firearm in public (§ 25850, subd. (c)(3)).
Braughton opined that all three men were Eastside Crips gang members and that
being a felon in possession of a firearm and a gang member in possession of a firearm in
public are primary activities of the Eastside Crips. He opined that their firearm
possession in relation to this incident benefitted the Eastside Crips by allowing them to
retaliate against rival gang members for the shooting or defend themselves from attacks
by rivals. He noted that Eastside Crips members had been shot earlier that night, putting
the Eastside Crips on the defensive and requiring them to retaliate to show they are not
weak.
4. 2020 Shooting
On September 4, 2020, a shooting occurred in front of a residence in Bakersfield.
Responding officers found Anthony H., a known Westside Crips associate, inside a
vehicle. There were six bullet strikes to the vehicle, and Anthony had suffered multiple
gunshot wounds, which ultimately left him paralyzed. A nine-millimeter shell casing was
found nearby.
Surveillance video suggested the suspect vehicle was a light blue Ford Mustang.
The suspect vehicle was later seen while traveling between locations associated with a
funeral for an Eastside Crips gang member. Officers stopped the vehicle, which had four

19.
occupants, including a known Eastside Crips gang member in the front passenger seat. A
nine-millimeter shell casing was located on the driver-side windshield wiper.
The driver of the vehicle was convicted of being an accessory after the fact (§ 32)
and committing a public offense on behalf of a criminal street gang (§ 186.22, subd. (d)).
The front passenger was convicted of assault with a semiautomatic firearm (§ 245,
subd. (b)) with a gang enhancement (§ 186.22, former subd. (b)(1)). Braughton opined
that the driver was an associate of the Eastside Crips and the passenger was an active
Eastside Crips gang member at the time of the offense. He explained that shooting a rival
gang member benefits the gang by making the gang stronger and the rival weaker, and
instilling fear in the community and the rival gang. By instilling fear in rivals and the
public, the gang ensures witnesses are less likely to cooperate with law enforcement,
allowing them to continue to commit felonies without police interference.
VII. Wandick’s Prior Offenses
In August 2017, Bakersfield Police Detective N. Poteete investigated a report of
assault and criminal threats. The victim had a swollen face and cuts on his mouth and
reported he had been threatened. The victim showed Poteete a cell phone video in which
Wandick said, “I ain’t pulling out no pellet gun,” and “I’m gonna shoot with a fully real,”
while making motions with his fingers like he was pointing a firearm at the camera.
(Boldface omitted.) He also mockingly referred to another person in the video “claiming
dub,” which Braughton explained referred to the person being a member, affiliate, or
associate of the Westside Crips. Additionally, Wandick insinuated the other person was
disrespecting or mocking “little Will,” an apparent reference to Wandick’s deceased
brother, a member of the Eastside Crips.
VIII. Defense Case
Wandick did not present any defense witnesses.
King elicited testimony from law enforcement regarding their retrieval of data
from the electronic data recording systems in the Camaro. Additionally, King elicited

20.
testimony that law enforcement located a cell phone believed to belong to Williams in the
Camaro. Although multiple cell phones were retrieved when King and Wandick were
arrested, law enforcement did not retrieve further information from those phones or seek
a search warrant regarding those phones.
DISCUSSION

I. Substantial Evidence Supports the Jury’s Finding That Wandick and King
Acted with Intent To Kill8
Defendants argue substantial evidence does not support a finding that they acted
with intent to kill, as required to support their convictions for murder and conspiracy to
commit murder, as well as the jury’s true finding on the drive-by murder special
circumstance. Relatedly, Wandick argues substantial evidence does not support a finding
that he was the shooter. We reject both arguments.
A. Standard of Review
“The test for evaluating a sufficiency of evidence claim is deferential: ‘whether,
on the entire record, a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.’ [Citation.] We must ‘view the evidence in the light most favorable to
the People’ and ‘presume in support of the judgment the existence of every fact the trier
could reasonably deduce from the evidence.’ [Citation.] We must also ‘accept logical
inferences that the jury might have drawn from the circumstantial evidence.’ ” (People v.
Flores (2020) 9 Cal.5th 371, 411.)
B. Applicable Law
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) Malice may be express or implied. (§ 188, subd. (a).) “Express
malice requires a showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or

8 We address defendants’ arguments in a different order than presented in their
briefs.

21.
know[s], to a substantial certainty, that the result will occur.’ ” ’ ” (People v. Smith
(2005) 37 Cal.4th 733, 739 (Smith).)
“Intent to unlawfully kill and express malice are, in essence, ‘one and the same.’ ”
(Smith, supra, 37 Cal.4th at p. 739.) Intent to kill is an element of several counts and
allegations in this case: first degree premeditated murder (People v. Clark (2016) 63
Cal.4th 522, 624), first degree murder perpetrated by means of discharging a firearm
from a motor vehicle (§ 189, subd. (a)), conspiracy to commit murder (People v. Ware
(2022) 14 Cal.5th 151, 167), and the drive-by shooting special circumstance (§ 190.2,
subd. (a)(21)). Because there is rarely direct evidence of a defendant’s intent, intent to
kill may “be inferred from the defendant’s acts and the circumstances of the crime.”
(Smith, at p. 741.)
“ ‘[D]irect aiding and abetting is based on the combined actus reus of the
participants and the aider and abettor’s own mens rea.’ ” (People v. Reyes (2023) 14
Cal.5th 981, 990–991.) “ ‘ “[A]n aider and abettor with the necessary mental state is
guilty of the intended crime.” ’ ” (In re Lopez (2023) 14 Cal.5th 562, 579.) To be liable
as a direct aider and abettor to first degree murder, the aider and abettor must form “ ‘his
[or her] own culpable intent,’ ” and must aid or encourage the commission of the murder
“ ‘with the intent or purpose of committing, encouraging, or facilitating its
commission.’ ” (Ibid.; accord, People v. McCoy (2001) 25 Cal.4th 1111, 1122.)
Additionally, for express malice murder, the aider and abettor must know “ ‘ “the full
extent of the perpetrator’s criminal purpose.” ’ ” (McCoy, at p. 1118.) In short, “the
aider and abettor must know and share the murderous intent of the actual perpetrator.”
(Ibid.)
C. Evidence That Wandick Was the Shooter
We first address Wandick’s contention that the evidence fails to establish he was
the shooter, and therefore fails to establish that he, as a mere passenger in the vehicle

22.
with the perpetrator, acted with the intent to kill.9 We conclude substantial evidence
supports a finding that Wandick was the shooter.
Surveillance video showed three individuals entering the Camry at the mall: King
in the driver’s seat, Wandick in the front passenger seat, and Thompson in the rear driver-
side seat. As the Camry exited the mall, the front passenger window was open, and the
rear passenger window was closed. Wandick turned back as the Camry passed
Williams’s Camaro and Wandick appeared to focus his attention on the Camaro. A short
time later, at a stop sign, Wandick leaned forward and pointed toward the Camaro before
the Camry followed the Camaro onto the highway. Once on the highway, the Camry
pursued the Camaro at a high rate of speed, eventually driving in the dirt shoulder
between the left lane and the center divider and coming even with, or about even with,
the Camaro. The shooting immediately followed. An eyewitness noted that all the
Camry’s windows were down, apart from the right-rear passenger window, which was
closed. There were six bullet holes in the Camaro: four in the driver’s door and two in
the rear-quarter panel. Three shell casings found under the front passenger seat of the
Camry were fired from the same gun as other shell casings found on the highway at the
scene of the shooting.
The foregoing constitutes substantial evidence that Wandick was the shooter. The
evidence was sufficient to establish that Wandick was seated in the front passenger seat
of the Camry with the window down. The surveillance video suggests Wandick
identified Williams as a target and directed King to pursue the Camaro. The shots were
fired when the vehicles were about even with each other on the highway, placing
Wandick in a position to fire upon the driver’s side door of the Camaro through his open
window. Only a single firearm was used. The location of the shell casings – under the

9 The prosecutor argued Wandick was the shooter and this remains the People’s
theory of the case.

23.
front passenger seat – is also circumstantial evidence suggesting Wandick fired the shots
from the front passenger seat. (People v. Flores, supra, 9 Cal.5th at p. 411 [“We must …
‘accept logical inferences that the jury might have drawn from the circumstantial
evidence.’ ”].) Viewing this evidence in the light most favorable to the People and
drawing from it all inferences that reasonably may be deduced in support of the
judgment, as we are required to do, we conclude substantial evidence supports a finding
Wandick was the shooter. (Ibid.)
Wandick concedes the evidence is sufficient to establish he was seated in the front
passenger seat at the time of the shooting but nonetheless argues Thompson or an
unidentified fourth person could have fired the shots through the rear passenger window
or the Camry’s sunroof.10 He also argues eyewitness testimony regarding whether the
Camry’s windows were up or down during the shooting was not credible due to the
circumstances surrounding the encounter. However, on substantial evidence review, we
do not resolve conflicts in the evidence and we will not reverse solely because some
evidence might reasonably be reconciled with a contrary finding. (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 162.) Thus, it is of no moment whether the evidence could
permit a finding that someone other than Wandick was the shooter, so long as substantial
evidence also supports the jury’s finding.
Wandick further argues that, in the absence of any gunshot trajectory evidence,
and in light of law enforcement testimony that casings from a semiautomatic handgun
may eject to the right or left, the location of the bullet holes and shell casings does not
establish the location from which the bullets were fired and thus does not establish he

10 Nicole, an eyewitness to the shooting, testified to seeing four people in the
vehicle, including a right rear passenger who was significantly shorter than the others and
looked “like a little kid.” In closing argument, the prosecutor suggested Nicole may have
mistaken the headrest of the Camry’s front passenger seat, which was “significantly
reclined” when the vehicle was located several days after the incident, for a fourth
passenger.

24.
was the shooter. Again, however, we must accept the logical inferences the jury may
have drawn from the location of the vehicles at the time of the shooting, Wandick’s
position in the vehicle, and location of the bullet holes and shell casings. (People v.
Flores, supra, 9 Cal.5th at p. 411.) Doing so, the evidence is sufficient to support the
finding that Wandick was the shooter, and his alternative theories do not suggest
otherwise.
D. Evidence That Defendants Acted with Intent To Kill
Substantial evidence also supports the jury’s finding that both defendants acted
with intent to kill.
As stated, Wandick immediately took notice of Williams and/or his Camaro when
the vehicles passed each other in the mall parking lot. The Camry, driven by King, then
followed the Camaro toward the mall exit. At a stop sign, King allowed several cars to
pass before Wandick leaned forward and pointed toward the Camaro, and King then
accelerated through the intersection and a subsequent red light, onto the highway behind
the Camaro.
Once on the highway, King pursued the Camaro at a high rate of speed. While
traveling at a speed of approximately 100 miles per hour, King drove the Camry onto the
dirt shoulder between the left lane and center divider and swerved toward the Camaro,
which was then in the far-left lane. The Camaro swerved into the middle lane behind
another car and King crossed into the left lane. Wandick fired off approximately seven
gunshots, six of which hit the driver’s side of the Camaro. Four gunshots hit the driver’s
door. Williams was shot in the head, shoulder and leg.
Wandick’s actions upon seeing the Camaro in the parking lot suggest he directed
King in the pursuit of the Camaro. A reasonable jury could infer from this conduct that
the shooting was part of a planned, coordinated, and agreed-upon attack. Additionally,
Wandick fired multiple bullets at Williams once the vehicles were alongside one another
and at relatively close range, giving rise to an inference that he acted with express malice.

25.
(Smith, supra, 37 Cal.4th at p. 742.) As for King, he pursued Williams and positioned the
vehicles so as to facilitate the deadly shooting, supporting an inference that he shared
Wandick’s murderous intent. This evidence is sufficient to support the jury’s finding of
intent to kill.
Nonetheless, Wandick argues the evidence is insufficient to establish intent to kill
because he fired “toward the driver’s side of the Camaro, rather than directly at the
victim.” We disagree that the evidence shows Wandick merely shot “toward the driver’s
side of the Camaro.” Wandick shot four times into the driver’s side door, shooting
Williams in the head, shoulder, and leg. The locations of the bullet holes and Williams’s
injuries support an inference that Wandick shot at Williams directly, rather than merely at
the vehicle.
Wandick also argues shooting at another person does not necessarily establish
intent to kill. In support, he relies on People v. Ratliff (1986) 41 Cal.3d 675 (Ratliff).
Ratliff involved an erroneous instruction on attempted murder that omitted the express
malice requirement in a case where the jury also was instructed on implied malice. (Id. at
p. 695.) The high court held the error was not harmless. (Ibid.) The court acknowledged
there was evidence the defendant shot the victim at close range, but the evidence was not
“conclusive” on the issue of intent to kill and thus did not render the error harmless,
stating, “Although it seems clear that [the] defendant had the intent to shoot and thus
disable his victims, there was no further evidence of a specific intent to kill necessary to
sustain an attempted murder conviction.” (Ibid.) Here, we are not called upon to
determine whether the evidence conclusively establishes defendants acted with intent to
kill, but rather whether substantial evidence supports such a finding. Accordingly, Ratliff
is inapposite. (See People v. Avila (2009) 46 Cal.4th 680, 702, fn. 7 [rejecting a
substantial evidence challenge to an intent-to-kill finding and noting that Ratliff “simply
held that the ‘evidence of intent to kill was not so conclusive as to render harmless an

26.
erroneous failure to instruct on that issue’ ”]; People v. Arias (1996) 13 Cal.4th 92, 129–
130, fn. 10 [same].)
Wandick further argues the high speed of both vehicles reflects merely an intent to
scare or injure Williams, rather than kill him. He contends his actions at the stop sign,
i.e., lunging forward and pointing in the direction of the Camaro, reflect the same.
Similarly, King concedes his driving was sufficient to support an inference that he
intended to aid in the shooting. However, like Wandick, he argues the evidence does not
support an inference he intended to kill, as opposed to scare or injure, Williams. We
disagree that the evidence of defendants pursuing Williams, with King pulling directly
alongside him and Wandick shooting him in the head, falls short of supporting a finding
of intent to kill. Defendants’ contrary arguments merely raise “alternative theories”
regarding inferences that could have been drawn from the evidence, which do not provide
a basis for reversal. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 162.)
Finally, both defendants argue the gang evidence is insufficient to support a
finding of intent to kill. However, we conclude the nongang-related evidence supports
the finding of intent to kill, even in the absence of a gang-related theory of motive.11
Accordingly, we hold substantial evidence supports a finding that both Wandick
and King acted with intent to kill.

II. Substantial Evidence Supports the Jury’s Finding That Wandick Shot “at
Another Person”
In addition to challenging the finding of intent to kill, Wandick argues the
evidence is insufficient to support the jury’s true finding on the drive-by murder special
circumstance because the evidence did not show Wandick shot at another person, as
required by statute, but rather at another vehicle. King joins in this argument. We
conclude substantial evidence supports the jury’s finding.

11 We therefore reject King’s argument that no evidence, other than the gang
evidence, supports a finding of intent to kill.

27.
The drive-by murder special circumstance applies where “[t]he murder was
intentional and perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person or persons outside the vehicle with the intent to inflict
death.” (§ 190.2, subd. (a)(21), italics added.) Defendants contend this special
circumstance does not apply when a person shoots “at an occupied motor vehicle,” but
rather requires that the shooter shoot “directly at an individual.”
We reject Wandick’s implied argument that the elements of the drive-by murder
special circumstance are not satisfied if the victim is inside a vehicle. Subdivision (a)(21)
of section 190.2 requires only that the victim be outside the shooter’s vehicle. It places
no other restrictions on the victim’s location. The statute may be satisfied if the victim is
in a different vehicle than the shooter.
We acknowledge there may be circumstances in which evidence that a defendant
discharged a firearm at an occupied motor vehicle may be insufficient to satisfy the
statutory requirement that the discharge of a firearm be directed “at another person or
persons.” However, this is not such a case. The shooting occurred while the Camry was
directly alongside the Camaro. There were four bullet holes in the driver’s door of the
Camaro and Williams was shot in his left temple, left shoulder, and right thigh. Evidence
of the vehicles’ locations at the time of the shooting, as well as the locations of the bullet
holes and Williams’s injuries, constitutes substantial evidence that Wandick shot “at
another person,” i.e., Williams, as required by section 190.2, subdivision (a)(21).
Accordingly, substantial evidence supports the jury’s true finding on the special
circumstance allegation.

III. The Court Did Not Abuse Its Discretion in Admitting Gang Evidence
Defendants argue the trial court abused its discretion in admitting gang evidence
because the minimal probative value of the evidence was outweighed by its prejudicial

28.
impact.12 They contend the erroneous admission of gang evidence rendered the trial
fundamentally unfair, in violation of their federal constitutional right to due process.13
We disagree.
A. Additional Background
Following is additional procedural background relevant to the admissibility of
gang evidence at trial and the related issue of bifurcation of the gang-related allegations,
which we address below.
1. Motions in Limine
The People’s trial brief set forth six predicate offenses it planned to introduce at
trial, including the 2017 gang-related shooting of which King was convicted. The People
also filed a motion in limine to admit gang evidence, including King’s conviction for the
2017 offense. The People alleged defendants’ prior gang contacts and offenses were
necessary to establish intent, motive, and gang participation. The People alleged King’s
prior conviction and the underlying facts of the 2017 offense were relevant to show
intent, common scheme or plan, and motive. In a supplemental motion in limine, the
People also sought to admit evidence regarding rap songs and videos involving Wandick
and King, including screenshots from the videos, testimony regarding specific lyrics, and
testimony regarding alleged gang hand signs shown in the videos.
Wandick filed a motion in limine to bifurcate trial on the gang allegations pursuant
to section 1109 and requested an Evidence Code section 402 hearing on the admissibility

12 As discussed below, defendants contend the court erred in declining to bifurcate
trial of all gang offenses and allegations. As such, they contend the court should have
excluded all gang evidence from the first phase of trial on the remaining substantive
offenses. In light of these arguments, we consider herein whether the gang evidence was
admissible to establish motive and intent on the remaining substantive charges.
13 To the extent any portion of the argument is forfeited for failure to raise it
below, Wandick argues ineffective assistance of counsel. The People do not argue
forfeiture, and we address the claim on the merits.

29.
of any gang evidence the prosecution might seek to admit during the first phase of trial.
He also sought to exclude any rap videos or lyrics and to require the prosecution to prove
the gang allegations using only predicate offenses that complied with the then-newly
established requirements of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly
Bill No. 333).
King filed a motion in limine to bifurcate trial on the gang allegations and to
exclude gang evidence at trial pursuant to Evidence Code sections 351 and 352. King
also moved for an Evidence Code section 402 hearing regarding the gang evidence. King
additionally sought to prohibit the People’s witnesses from testifying as to the subjective
intent of any defendant based on gang evidence and to prohibit evidence concerning his
prior arrests or convictions.
2. Evidence Code Section 402 Hearing
The court held an Evidence Code section 402 hearing regarding bifurcation and
gang evidence, at which Braughton testified. Much of Braughton’s testimony was similar
to his eventual testimony at trial. Braughton testified that the rivals of the Eastside Crips
include the Westside Crips, Country Boy Crips, and Warlord Piru Bloods. These gangs
see each other as enemies, push each other’s boundaries, and will go against each other
when they can by shooting or assaulting each other.
Gangs can have members or associates. Associates have not yet put in enough
work to be full members of the gang, while members regularly engage in the primary
activities of the gang, may get a moniker, and are allowed to have tattoos signifying their
gang membership. Family members of a gang member may be perceived by rivals to
also be gang members or associates and may be targeted by rival gangs simply because
they are seen with a gang member in person or on social media. It is common for
siblings or half siblings to be involved in the same gang. Some families have several
generations of family members who have been part of the same gang.

30.
Gang members may target rival gangs by going to the rival’s traditional
boundaries or hangouts and posting on social media. Gang members may use social
media to decide who to target. They may target associates of rival gangs to hurt or
weaken the gang.
Eastside Crips and Country Boy Crips have defined territories that shift slightly
over time. Gangs often have businesses or stores they frequent, which are referred to as
strongholds, and which they claim and protect from rival members. One stronghold of
the Country Boy Crips is a market that is not within their traditional boundaries, but in
close proximity. The Country Boy Crips have several subsets, including the Watts and
Lotus subset, named for an intersection within the gang’s territory.
Braughton was familiar with King and had reviewed his public YouTube page and
Instagram page, both of which had the username “yc_da_gunman.” The YouTube page
contained many rap videos about Eastside Crips gang culture and the primary activities of
the gang. King’s moniker was “Young Coke” or “YC.” Braughton was familiar with
Wandick and had viewed his Instagram page, which had the username
“Clannmemba1100.”
Braughton viewed a SnapChat video posted by Cecil H. which depicted Cecil,
Williams, and Cecil’s brother Christian. Christian had been murdered with another
Country Boy Crips member in November 2020. Cecil had been seen with Country Boy
Crips members at the funeral of the other deceased gang member. Cecil’s SnapChat
video was posted after the shooting in this case. It was captioned, “I love y’all” with a
heartbroken emoji, and Cecil had tagged Williams’s Snapchat account, which had the
username “DWill Ss,” as well as Christian’s Snapchat account. Braughton explained that
the “Ss” in Williams’s username was a common symbol used by Country Boy Crips to
refer to South Side, because they are the “southern most black gang in Bakersfield.”
In attempting to learn more about Williams’s family background, Braughton
viewed a public Facebook account belonging to Williams’s twin brother Daleon. Daleon

31.
was shot to death in March 2017. A photograph on his account showed him making a
hand gesture associated with the Watts and Lotus subset of the Country Boy Crips. The
photograph was captioned, “I had to remind that bitch who I was.” (Boldface omitted.)
Braughton also testified to several posts on the account that suggested Daleon was an
active member of the Watts and Lotus subset of the Country Boy Crips, and in which he
made derogatory references to rival gang members.
Williams’s Facebook account included a photograph of him in front of a black
convertible sports car. Based on Williams’s contacts with Country Boy Crips members
and the social media posts described above, Braughton opined that Williams was an
associate of the Country Boy Crips.
3. Further Argument
Following the Evidence Code section 402 hearing, Wandick asked the court to
bifurcate the “entire gang portion of this case,” including the substantive gang charges
and gang-related enhancements, and to allow testimony related to gang affiliation or
membership only in the second phase of trial. He argued there was no evidence that
Williams was affiliated with or a member of any gang, perceived to be so affiliated by
defendants or anyone else, or involved in any dispute with the Eastside Crips, or that the
interaction between defendants and Williams at the mall reflected any kind of gang
rivalry or dispute. Accordingly, he argued there was no basis to allow the evidence to
support a gang-related theory of motive in the first phase of trial.
The People argued the gang evidence was “highly relevant toward proving the
motive” for the shooting. The prosecutor argued there was some evidence linking
Williams and his brother to the Country Boy Crips. Additionally, although there was no
evidence defendants had a personal “beef” with Williams, the suspect vehicle followed
Williams’s vehicle from the mall parking lot onto the highway, suggesting defendants
pursued or “hunt[ed]” Williams once they encountered him at the mall. The prosecutor
argued there was sufficient evidence through Braughton’s testimony and defendants’ own

32.
conduct during the incident to suggest defendants perceived Williams to be a gang rival
and targeted him on that basis. Accordingly, the People argued, the gang allegations
should not be bifurcated and the evidence should be deemed admissible as to motive.
The People additionally noted that the gang special circumstance was not subject to the
bifurcation provisions of section 1109 and, to prove the gang special circumstance, the
People were required to prove both the predicate offenses necessary to establish the
existence of the gang and that defendants were gang members and committed the crime
to benefit the gang.
Wandick again emphasized a lack of evidence to suggest Williams was perceived
by defendants or others to be affiliated with a gang. He argued the social media evidence
was not dispositive, and the extent to which Daleon may have represented himself to be a
gang member was irrelevant to whether Williams was viewed as a gang member.
Wandick also noted there was a split of authority as to whether section 1109 required
bifurcation of the gang special circumstance. Ultimately, Wandick argued there was no
evidence to suggest the shooting was gang related and the only purpose of gang evidence
in the first phase of trial would be to inflame the jury. King’s counsel similarly argued
there was not sufficient evidence of a gang-related motive and the gang evidence would
constitute an undue consumption of time that would inflame the jury. King also argued
his prior conviction was not relevant to motive because there was not enough “gang
indicia of intent on this case.”
4. Ruling
The court noted that the bifurcation request applied to the gang special
circumstance on count 1 (§ 190.2, subd. (a)(22)), gang enhancement to count 2 (§ 186.22,
subd. (b)(1)), and gang-related firearm enhancements (§ 12022.53, subds. (d), (e)(1)).
Pursuant to section 1109, the court granted the request to bifurcate trial of the gang
enhancement to count 2. However, the court held that bifurcation of the gang special
circumstance and gang-related firearm enhancements was not required by section 1109.

33.
The court then considered whether to exercise its discretion to bifurcate trial on
the gang allegations not governed by section 1109. The court explained:

“The Court must consider what evidence has been presented during
the evidentiary hearing to determine the existence of motive or what motive
might a defendant have in committing the charged offenses. It’s apparent
to the Court that the alleged victim in this case, Mr. Daniell Williams,
either was an associate or an affiliate or a member of a criminal street gang
or could be perceived as such. The Court makes that determination based
on the totality of the circumstances or the surrounding circumstances to that
determination.

“Specifically, Daniell Williams does have a twin brother. It has
been represented that he has an identical twin brother. To such an extent
that even the law enforcement officer testifying when viewing a photograph
could not tell whether it was Daniell Williams or Daleon Williams because
they are identical brothers. In any event, what is significant to the Court is
not only the photograph, specifically, in addition to the SnapChat video and
the other references to social media accounts.

“What is significant to the Court is the public accessibility to such
information, that whether or not Mr. Daniell Williams represented himself
as an associate, an affiliate, or a member of a criminal street gang. Based
on the overall view of this information being publicly accessible, one can
reasonably infer that he is a member, an associate, or an affiliate of a
criminal street gang, and further infer when considering all of the
information in its totality that he is a member, an associate, or an affiliate of
the Country Boy Crips. That is significant as it relates to the eventual
evidence involving criminal street gangs, in general, and whether the
defendants, themselves, are active participants in a criminal street gang.”
The court then summarized the testimony from the evidentiary hearing and stated:

“Given the totality and the overall circumstances of the testimony
attributable to the lone witness who testified today about criminal street
gangs in general, it is reasonable based on that information to believe that if
the defendants are criminal street gang members, that the defendants would
know of rival criminal street gangs and would have a motive to commit the
charged crime in this case if the alleged victim is either a member, an
associate, an affiliate, or perceived to be one of those of a rival criminal
street gang.

34.
“In considering Evidence Code [s]ection 1101[, subdivision] (b) and
the permissible purposes for which information such as this should be
analyzed, the Court does accept the representation that a viable theory
useable through [Evidence Code section] 1101[, subdivision] (b) is motive
and that this information is evidence that makes the crime understandable
and renders the inferences regarding the defendants’ intent more
reasonable.”
The court then stated it was denying the request to bifurcate the gang
enhancements.
Turning to the admissibility of the gang evidence, the court ruled that King’s prior
conviction was admissible as a predicate offense, and to prove King’s participation in the
gang, as well as his motive and intent, but not a common scheme or plan. The court also
determined that screen shots from the rap videos were admissible with one exception, but
testimony regarding the lyrics contained in the videos was not.
Wandick suggested that, if evidence of King’s prior crime was admitted to show
King’s intent, Wandick’s case should be tried separately or to a separate jury to prevent
the evidence being used against him. The court indicated the prejudice to Wandick from
King’s prior crimes evidence would be so great that the court would be inclined to sever
defendants’ cases or impanel separate juries. After hearing further argument, the court
granted the request to sever, stating the “only way to get around this” would be if the
People declined to offer evidence of King’s prior offense as a predicate offense in their
case-in-chief.
In response, the People withdrew their request to admit King’s prior offense to
show intent and motive and stated the offense would be used only as a predicate offense
and to prove King’s gang membership. Over Wandick’s objection, the court determined
the matter could go forward without severance and evidence of King’s prior offense
could be admitted as a predicate offense as to both defendants, and to prove King’s gang
membership. The court stated the prosecution would be permitted to introduce evidence
that King and his coparticipants were alleged to have shot at a residence and that King

35.
subsequently entered a plea and suffered a conviction, but facts regarding the events
leading up to the shooting, which were somewhat similar to the charged offense, could
not be introduced. Later in the trial, the prosecutor stated he understood the court’s
ruling as allowing him to rely on this evidence to argue motive. Defense counsel did not
argue otherwise. The court then stated the prosecutor was correct in his understanding.
During trial, the parties and the court had several conferences regarding whether
the parties would stipulate to certain elements of the gang allegations, and whether the
court would force the People to enter such a stipulation, which would negate the need for
the People to offer some, but not all, of the gang evidence. Ultimately, the court forced
the prosecution to enter into a stipulation regarding elements of the gang allegations as
follows:

“The Eastside Crips are a criminal street gang in Bakersfield, California,
and were active as of May 5th, 2022. As of May 5th, 2022, defendants
Wandick and King were active participants in the Eastside Crips and knew
that members of the Eastside Crips engage in or have engaged in a pattern
of criminal gang activity.”
Despite the stipulation, the court nonetheless determined that much of the gang
evidence remained admissible, including evidence of King’s prior offense, to establish
matters not covered by the stipulation, such as relevant gang rivalries and the existing
relationship between Wandick and King.
Subsequently, the court clarified that it had granted the request to bifurcate trial of
the substantive gang charge and the gang enhancements pursuant to section 1109 but had
ordered the special circumstance allegation be tried during the initial trial along with
count 1. The court further clarified that it had ruled the gang evidence may be relevant to
motive. The court also memorialized an off-the-record discussion in which defense
counsel stated their intent to withdraw the request for bifurcation, given that the gang
evidence would be presented in the initial phase of trial over defense objection. Counsel
agreed with the court’s summary of the off-the-record discussion and the court stated that

36.
“all of the gang allegations [would] be tried and determined by this jury in the initial
phase of the trial.”
5. Jury Instructions
The jury was instructed as follows regarding the gang evidence:

“You may consider evidence of gang activity only for the limited
purpose of deciding whether:

“The defendant acted with the intent, purpose, and knowledge that
are required to prove the gang-related crimes, enhancements, and special
circumstance allegations charged;

“AND/OR,

“The defendant had a motive to commit the crimes charged.

“You may also consider this evidence when you evaluate the
credibility or believability of a witness and when you consider the facts and
information relied on by an expert witness in reaching his or her opinion.

“You may not consider this evidence for any other purpose. You
may not conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crime.”
The jury also was instructed as follows regarding defendants’ prior uncharged
offenses:

“The People presented evidence that … Wandick committed the
offense of threatening to cause great bodily injury … that was not charged
in this case.

“The People presented evidence that … King committed the offense
of shooting at a[n occupied] residence … that was not charged in this case.
[¶] … [¶]

“If you decide that … Wandick committed the uncharged offense,
you may, but are not required to, consider that evidence for the limited
purpose of deciding whether:

“ … Wandick had a motive to commit the offenses alleged in this
case.

37.
“If you decide that … King committed the uncharged offense, you
may, but are not required to, consider that evidence of the limited purpose
of deciding whether:

“ … King acted with the intent to kill … Williams, and/or intended
to assist, further, or promote felonious criminal conduct by members
of the gang, and/or intended to actively participate in a criminal
street gang; and/or

“ … King had a motive to commit the offenses alleged in this case.”

B. Admission of Gang Evidence
Defendants argue the trial court prejudicially erred in admitting gang evidence to
prove motive.14 They argue the prosecutor’s theory of gang motive was based primarily,
if not entirely, on speculation. They also argue any minimal probative value of the gang
evidence was outweighed by its prejudicial impact. Accordingly, they contend the
erroneous admission of gang evidence rendered the trial fundamentally unfair, in
violation of their federal constitutional right to due process. We disagree.
1. Applicable Law
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is
any evidence “having any tendency in reason to prove or disprove any disputed fact that
is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence of
a defendant’s gang affiliation and activity may be admissible “where relevant to the
underlying charges.” (People v. Burgos (2024) 16 Cal.5th 1, 25, fn. 8; see id. at p. 23;
People v. Chhoun (2021) 11 Cal.5th 1, 31 (Chhoun).) This includes evidence of the

14 They also argue the court erred in admitting gang evidence to prove intent and
knowledge. However, with the exception of King’s prior offense, which we discuss
separately, and the gang-related allegations on which the evidence clearly was
admissible, the jury instructions did not permit the jury to consider gang evidence in
evaluating intent and knowledge. Nor did the court admit the evidence for these
purposes. The prosecutor did not rely on the gang evidence in arguing intent to kill.
Accordingly, our analysis focuses on the admissibility of the gang evidence to prove
motive on the substantive offenses.

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defendant’s gang affiliation and evidence of “ ‘the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and the like.’ ” (Chhoun, at
p. 31.) Gang evidence may be admissible to prove “ ‘identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues pertinent to the guilt of the
charged crime.’ ” (Ibid.) “Even when it is relevant, however, ‘courts should carefully
scrutinize evidence of a defendant’s gang membership because such evidence “creates a
risk the jury will improperly infer the defendant has a criminal disposition and is
therefore guilty of the offense charged.” ’ ” (Ibid.)
Gang evidence may be excluded pursuant to Evidence Code section 352 if its
probative value is outweighed by its prejudicial effect. (Chhoun, supra, 11 Cal.5th at
p. 33.) “ ‘ “ ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence.’ ” ’ ” (Id. at p. 32.) “ ‘ “The admission of gang
evidence over an Evidence Code section 352 objection will not be disturbed on appeal
unless the trial court’s decision exceeds the bounds of reason.” ’ ” (Id. at p. 33.) “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.” (Evid. Code, § 352.) “ ‘ “ ‘[E]vidence should be excluded as
unduly prejudicial when it is of such nature as to inflame the emotions of the jury,
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. Johnson
(2022) 12 Cal.5th 544, 610 (Johnson).)

39.
2. Analysis
The gang evidence in this case was relevant to show the shooting was motivated
by gang rivalry. As stated, the evidence showed that defendants deliberately targeted and
pursued Williams from the mall parking lot onto the highway with the intent to shoot and
kill him. The evidence also showed that defendants were Eastside Crips members.
Evidence from social media suggested Williams was at least associated with the Country
Boy Crips, a known rival of the Eastside Crips. Braughton testified that Eastside Crips
and Country Boy Crips frequently target one another in retaliatory shootings.
Additionally, Williams’s deceased identical twin brother was a member or associate of
the Country Boy Crips prior to his death, an association he made clear on his publicly
viewable social media page. Williams’s brother’s gang membership or association could
lead gang rivals to perceive Williams as a gang associate and/or a target. After the
shooting, Williams was memorialized, along with a Country Boy Crips member or
associate who was murdered earlier in the year, in a video posted to social media by a
different Country Boy Crips member, and with a caption that used phrasing and
misspellings that suggested association with the Country Boy Crips. This suggests the
shooting may have been perceived by gang members to be gang related. We additionally
note there was no confrontation or apparent provocation for the shooting when
defendants first encountered Williams at the mall. Nor was there any known history of
contact or disagreement between Williams and defendants prior to the day of the
shooting. Together, the circumstances of the shooting and the gang associations of both
defendants and Williams support an inference that defendants targeted and killed
Williams because of his perceived association with a rival gang. The evidence therefore
was relevant and admissible to prove motive.

40.
Nonetheless, King argues the gang evidence lacked probative value because the
inferences to be drawn from it were speculative. He contends there is no evidence that
Williams was a member or associate of the Country Boy Crips.15 Wandick similarly
points out that there is no evidence Williams was a gang member and evidence
supporting an inference of his gang association was “meager.” However, as stated,
Braughton relied on social media posts by Williams and others to opine that Williams
was a Country Boy Crips associate. Additionally, Braughton opined Williams could be
targeted by a rival gang based on his perceived association with the Country Boy Crips
through his brother. This evidence is not as speculative as defendants suggest and is
sufficient to support an inference that defendants targeted Williams as either an actual or
perceived gang associate.
Defendants also assert the gang evidence does not support an inference of gang
motive because the record lacks evidence that either defendant saw the social media posts
relied on by the prosecution. Defendants are correct there was no direct evidence on this
point. However, there was evidence that defendants themselves were active on social
media. Expert testimony established that gang members use social media to identify
gang rivals. The social media relied on by the prosecution was viewable to the general
public. Moreover, Wandick plainly recognized Williams and/or his vehicle on sight.
This evidence supports an inference that defendants believed Williams to be associated
with a rival gang.
Relying on People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran) and People
v. Hin (2025) 17 Cal.5th 401 (Hin), King argues the gang evidence was insufficient to
create an inference of motive or intent because “the only factor linking the offense as
gang related is the perpetrators’ gang membership.” Relying on People v. Garcia (2024)

15 King repeatedly asserts that the People conceded the evidence did not show
Williams was a member or associate of the Country Boy Crips. The cited portions of the
record do not support this assertion.

41.
107 Cal.App.5th 1040 (Garcia), Wandick argues the gang evidence was insufficient to
raise an inference of motive or intent because there was no evidence of gang threats or
gang signs being made at the time of the incident. We review these cases in turn. As we
explain, these cases are distinguishable.
In Albarran, the defendant was convicted of attempted murder and other offenses
in connection with an incident in which two men on the street fired shots at a house
where a birthday party was taking place. (Albarran, supra, 149 Cal.App.4th at p. 217.)
Evidence was admitted at trial to show the defendant was an active member of a criminal
street gang. (Id. at pp. 220–221.) There was no direct evidence linking the crimes to the
gang, but a gang expert testified it was known “ ‘on the street’ ” that members of another
gang were at the party and the home was occupied by a member of a different gang. (Id.
at p. 221.) However, the prosecution’s gang expert was unaware of any rivalry between
the gang associated with the residence and the defendant’s gang. (Ibid.) Nonetheless, the
expert opined the shooting was gang related and intended to benefit the gang because of
where it occurred, when it occurred (i.e., during a party), and the fact that more than one
shooter was involved. (Ibid.)
On appeal, the defendant argued the gang evidence was irrelevant and
inadmissible as to the underlying charge and the court should have excluded it prior to
trial or, alternatively, granted his motion for a new trial on this same basis. The Court of
Appeal held there was insufficient evidence to support the prosecutor’s contention that
the shooting was intended to gain respect for the shooters within the gang. (Albarran,
supra, 149 Cal.App.4th at p. 227.) Rather, the court determined the motive for the
shooting, which occurred at a private birthday party at a home occupied by a nonrival
gang member, was not apparent, particularly given that the shooters made no efforts to
identify themselves or use the shooting to enhance their status before, during, or after the
shooting. (Ibid.) Rather, the only evidence supporting a gang motivation was the
defendant’s gang status. (Ibid.) Although the court stopped short of holding that all the

42.
gang evidence was irrelevant, it ultimately concluded that some of the more
inflammatory gang evidence was irrelevant, cumulative, and presented a substantial risk
of undue prejudice, and was improperly admitted on that basis. (Id. at p. 228.)
Hin evaluated the sufficiency of the evidence offered in support of a gang-murder
special circumstance, rather than the admissibility of gang evidence. (Hin, supra, 17
Cal.5th at p. 464.) The Attorney General argued on appeal that the defendants committed
a robbery and murder to recoup lost gambling funds, which they then intended to use to
benefit the gang. (Ibid.) The prosecutor had argued at trial that the defendants had a
mixed motive to both benefit the gang financially and increase their own status. (Id. at
p. 465.) A gang expert opined that the crime was committed to promote the gang based
upon the fact that two members of the same gang were together, they were motivated to
recover their gambling losses because a gang needs money, such crimes can be a form of
training younger gang members, and the gun used in the crime was “ ‘a [gang] gun.’ ”
(Id. at p. 464.)
The high court held the expert’s testimony was insufficient to show the murder
was carried out to further the activities of the gang, as required to prove the special
circumstance allegation. (Hin, supra, 17 Cal.5th at p. 466.) Rather, a conclusion on this
point would “stray into the realm of speculation and conjecture and would not be
‘grounded in specific facts.’ ” (Ibid.) The high court noted there was no evidence the
defendants’ gambling losses involved gang money, nor any evidence the money they
obtained from the robbery would have gone to or did go to the gang, and no evidence the
murder was committed for the gang’s financial benefit. (Ibid.) Furthermore, the expert
testimony regarding training of younger gang members was based on a
mischaracterization of the evidence and the only evidence to support such theory was that
one of the defendants was older than the other. (Ibid.) Evidence that the defendants were
active gang members was insufficient to show the murder was committed to further the
activities of the gang. (Id. at p. 467.) The court also rejected the argument that the

43.
murder could increase respect for the gang by instilling fear in others, inasmuch as there
was no evidence the victims were members of a rival gang or targeted for a gang-related
reason, the evidence did not show the scene of the crime was in the territory of the
defendants’ gang or a rival gang, and the defendants did not do or say anything during the
offense to indicate their gang membership. (Ibid.) Accordingly, there was no evidence
the victims or the public would know the crime was committed by members of the gang
and therefore nothing to suggest the murder was intended to, or did, elevate the status of
the gang. (Ibid.)
Garcia involved a murder, attempted murder, and robbery, committed together by
two gang members. (Garcia, supra, 107 Cal.App.5th at p. 1044.) Trial of the gang
enhancements was bifurcated from trial of the underlying offenses. (Ibid.) Nonetheless,
the court admitted gang evidence at trial on the underlying offenses and the defendants
argued on appeal that this constituted prejudicial error. (Ibid.) The Court of Appeal
agreed. (Ibid.) Notably, there was no evidence indicating the crime involved the use of
gang signs or threats or occurred in gang territory. (Id. at p. 1051.) Additionally, during
an undercover operation, one of the defendants denied the crime was gang related, stating
instead that it was supposed to be “ ‘just a robbery.’ ” (Ibid.; see id. at p. 1052.)
Prosecution witnesses testified they believed the defendant was being truthful in this
admission. (Id. at pp. 1051–1052.) It appears the only possible indicia the crime was
gang related was the defendant’s reference to other “homies,” who he also referred to as
friends, being present at the scene. (Id. at p. 1051.) However, the evidence suggested the
“homies” were not there for a gang purpose. (Id. at p. 1052.)
The People argued on appeal that the evidence was relevant to prove conspiracy,
aiding and abetting, intent to rob, and that one of the defendants was a major participant
in the shooting. The Court of Appeal disagreed, stating there was no factual
underpinning or analysis to support the argument that gang evidence was relevant to
show intent to rob and, in any event, one of the defendants had admitted during the

44.
undercover operation that they intended to commit a robbery, rendering gang evidence on
this point unnecessary. (Garcia, supra, 107 Cal.App.5th at p. 1052.) Additionally, the
evidence was not necessary to show a conspiracy between the two defendants or with a
third accomplice, or that one of the defendants aided and abetted the crimes or was a
major participant, because other evidence established these points without the need to
present any gang-related evidence. (Id. at pp. 1053–1054.) The court concluded the gang
evidence was cumulative, minimally probative, and “largely irrelevant” to the contested
issues. (Id. at p. 1054.) On the other hand, the evidence was inflammatory and
prejudicial, “painting [the defendants] as violent gangsters.” (Id. at p. 1056; see id. at
p. 1055.) Accordingly, the court determined the probative value of the evidence was
outweighed by the probability it would unduly prejudice defendants:

“The jury heard that [the defendants] were Logan gang members, gang
members are extremely dangerous, the purpose of the Logan gang is to
commit violent crimes, gang members frequently commit crimes together,
and obtain status within the gang by killing. This evidence fell squarely
within the legal definition of prejudice because it evokes an emotional bias
and had no evidentiary value in proving the substantive crimes. The
prejudice created by the nonprobative gang-related evidence was
undoubtedly intensified by how the prosecutor used the evidence in closing
argument. By portraying [the defendants] as violent gangsters, the gang-
related evidence harmed [one defendant’s] credibility and unjustly
bolstered [a victim’s] credibility, whose trustworthiness was otherwise
doubtful.” (Id. at pp. 1058–1059, fn. omitted.)
Unlike Albarran, Hin, and Garcia, this is not a case where the only evidence
supporting a gang-related theory of motive is defendants’ gang membership. Defendants
are correct that there is no evidence Williams was wearing gang colors, the encounter did
not occur in gang territory, and the evidence does not reflect that any gang threats, signs,
or slogans were exchanged. However, unlike in the cases cited by defendants, the
evidence here showed that defendants and Williams were associated with rival gangs that
frequently targeted each other in retaliatory shootings. Indeed, Braughton’s testimony
established that there were “multiple incidents of shootings or homicides back and forth

45.
between the East Side Crips and the Country Boy Crips” in the months preceding
Williams’s murder. He described a series of “non-stop … retaliation shootings between”
the gangs both prior to and after the murder. We additionally note that defendants
pursued and targeted Williams in the absence of any other provocation or preceding
event. Thus, unlike Hin and Garcia, which involved financially motivated crimes of
robbery, there was no other apparent motivation for defendants’ crimes in this case. The
lack of any other apparent motivation for this shooting of a perceived associate of a rival
gang further supports an inference that the shooting was gang motivated.
Defendants also argue the prejudicial impact of the gang evidence outweighed its
probative value. This argument hinges in part on defendants’ argument, which we have
rejected, that the evidence was only minimally probative. The probative value of
evidence regarding motive generally exceeds its prejudicial effect. (Chhoun, supra, 11
Cal.5th at p. 32.) That remains true in this case. Although the evidence against
defendants was strong, the People were entitled to place this seemingly random act into
context through evidence that defendants had a gang motive to target Williams. Evidence
regarding the respective gangs “was not so minimally probative on the charged offense,
and so inflammatory in comparison, that it threatened to sway the jury to convict
regardless of [the] defendants’ actual guilt.” (People v. Hernandez (2004) 33 Cal.4th
1040, 1051.) Admission of gang evidence was not arbitrary, capricious, or absurd.
Accordingly, the court did not abuse its discretion in admitting the gang evidence. Nor
did the gang evidence render the trial fundamentally unfair. Because the court did not
abuse its discretion under state law, defendants’ constitutional claim also fails. (People v.
Fuiava (2012) 53 Cal.4th 622, 670 (Fuiava).)
3. Admissibility of Evidence of Uncharged Crimes
Defendants also specifically challenge the admission of their prior gang-related
crimes.

46.
“ ‘ “Subdivision (a) of [Evidence Code] section 1101 prohibits admission of
evidence of a person’s character, including evidence of character in the form of specific
instances of uncharged misconduct, to prove the conduct of that person on a specified
occasion.” ’ ” (Johnson, supra, 12 Cal.5th at p. 610.) However, subdivision (b) of
Evidence Code section 1101 clarifies that this rule does not prohibit admission of
evidence that a person committed a prior crime when such evidence is “ ‘logically,
naturally, and by reasonable inference’ ” relevant to prove some fact at issue, such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake of
fact or accident. (Fuiava, supra, 53 Cal.4th at p. 667; see Evid. Code, § 1101, subd. (b);
see also People v. Ewoldt (1994) 7 Cal.4th 380, 393, superseded by statute on other
grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) “ ‘When
reviewing the admission of evidence of other offenses, a court must consider: (1) the
materiality of the fact to be proved or disproved, (2) the probative value of the other
crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy
requiring exclusion even if the evidence is relevant.’ ” (Fuiava, at p. 667; accord,
Johnson, supra, 12 Cal.5th at p. 610.)
Various degrees of similarity are required for a trial court to admit evidence
pursuant to subdivision (b) of Evidence Code section 1101. The least degree of similarity
is required to prove intent. (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) “[T]o be
admissible to prove intent, the uncharged misconduct must be sufficiently similar to
support an inference that the defendant ‘ “probably harbor[ed] the same intent in each
instance.” ’ ” (Ibid.) The admissibility of evidence of uncharged crimes offered to
support a theory of motive “does not necessarily depend on similarities between the
charged and uncharged crimes, so long as the offenses have a direct logical nexus.”
(People v. Demetrulias (2006) 39 Cal.4th 1, 15.)
The trial judge has the discretion to admit other crimes evidence after weighing
the probative value against the prejudicial effect pursuant to Evidence Code section 352.

47.
(Fuiava, supra, 53 Cal.4th at p. 667.) “ ‘ “Since ‘substantial prejudicial effect [is]
inherent in [other crimes] evidence,’ uncharged offenses are admissible only if they have
substantial probative value.” ’ ” (People v. Hendrix (2013) 214 Cal.App.4th 216, 244.)
We review a trial court’s rulings under Evidence Code sections 352 and 1101 for abuse
of discretion. (Johnson, supra, 12 Cal.5th at p. 610.)
a. Wandick’s Prior Uncharged Crime
The prosecution proffered evidence suggesting Wandick made gang-related threats
to shoot another person in August 2017. The jury was instructed that the People had
presented evidence that he committed the offense of “threatening to cause great bodily
injury,” and that it could consider this evidence for the limited purpose of deciding
whether Wandick had a motive to commit the offenses alleged in this case. Wandick
argues this evidence “does not create an inference that [Wandick] had a motive to commit
the charged offenses because it occurred when [Wandick] was 17 years old, was made in
a live video on the internet, and apparently was made due to personal motivations as a
result of [Wandick] perceiving someone who may have been a rival gang member, to be
disparaging his deceased brother.”16
In the prior incident, Wandick threatened to shoot the victim, while mocking
someone’s membership in, or association with a rival gang, and insinuating the person
had disrespected Wandick’s deceased brother, an Eastside Crips member. Wandick’s
prior gang-related threat directed at real or perceived gang rivals was plainly relevant to
the issue of motive in this case. Wandick’s arguments regarding his age, the format of
the video, or additional personal motivations behind the threats do not diminish the
probative value of the evidence nor enhance its prejudicial effect. The evidence was brief

16 Wandick also seemingly suggests it was improper to admit evidence of this
offense as a predicate offense in support of the gang allegations. However, it does not
appear the evidence was offered for this purpose and the jury was not instructed the
evidence could be considered for this purpose.

48.
and not particularly inflammatory, especially when viewed alongside the evidence of the
crimes charged in this case. Additionally, the jury was instructed regarding the limited
purpose of this evidence. The court did not abuse its discretion in admitting this evidence
for the limited purpose of determining whether Wandick had a motive to commit the
charged offenses.
b. Admissibility of King’s Prior Uncharged Crime
Evidence was adduced that King and other Eastside Crips gang members shot at
the residence of a rival gang member in April 2017. King was convicted of assault with a
semiautomatic firearm and a gang enhancement. The jury was instructed it could
consider this evidence in determining whether King intended to kill Williams; intended to
assist, further, or promote felonious criminal conduct by members of the gang; intended
to actively participate in a criminal street gang; and/or had a motive to commit the
offenses alleged in this case.
As with Wandick’s prior offense, King’s prior offense of shooting at the residence
of a rival gang member is relevant to the prosecution’s theory of motive in this case, i.e.,
that King was motivated to aid and abet the crimes because he perceived Williams to be
associated with a rival gang.17 Like the evidence of Wandick’s prior crime, the evidence
of King’s prior crime was brief and not particularly inflammatory, particularly in light of
the crimes charged in this case. The court did not abuse its discretion in admitting this
evidence for a limited purpose.

17 King asserts the prior offense does not reflect intent to kill and, in any event, is
too dissimilar to the charged offense to permit a reasonable inference of intent in this
case. Like the other gang evidence, the prosecution relied on this evidence to prove
motive by arguing, for example, that King was aware that Eastside Crips have a motive to
kill perceived gang rivals and King “acted with the motive to target and kill a perceived
gang rival.” The evidence was admissible on that basis.

49.
IV. The Court Did Not Abuse Its Discretion in Denying Defendants’ Motions To
Bifurcate Trial on Certain Gang-related Allegations
Defendants were charged with the following gang-related counts and allegations:
a gang special circumstance on count 1 (§ 190.2, subd. (a)(22)), active participation in a
criminal street gang on count 3 (§ 186.22, subd. (a)), criminal street gang conspiracy on
count 5 (§ 182.5), gang-related firearm enhancements on counts 1, 2, 4, and 5
(§ 12022.53, subds. (d), (e)(1)), and a gang enhancement on count 2 (§ 186.22, subd.
(b)(1)). Pursuant to section 1109, the court granted defense motions to bifurcate trial of
the active participation count and the gang enhancements alleged pursuant to section
186.22, subdivision (b), but denied the request to bifurcate trial of the gang special
circumstance and gang-related firearm enhancements and did not address bifurcation of
the gang conspiracy count. The defense then withdrew their request to bifurcate the gang
allegations and stipulated to certain elements of the gang-related allegations. After both
sides rested, the information was amended to add gang enhancement allegations to
counts 1 and 4 and the gang-related firearm allegation to count 5 was dismissed.
Ultimately, the jury found the gang special circumstance not true as to both defendants;
however, the jury found defendants guilty on the gang-related counts and found the
remaining gang-related allegations true.
Wandick argues the court prejudicially erred by denying in part the defense
motions to bifurcate trial on the gang-related allegations, and the denial rendered the trial
fundamentally unfair in violation of his federal constitutional rights to due process and a
fair trial. He acknowledges that further bifurcation was not required by section 1109, but
nonetheless argues the court had discretion under section 1044 to bifurcate trial of the
remaining allegations and abused its discretion in failing to do so. He contends he was
prejudiced by this abuse of discretion because it caused him to withdraw his request for
bifurcation and to stipulate to several elements of the gang-related counts and allegations.
King joins in these arguments.

50.
As we explain, we conclude the court did not abuse its discretion in denying the
request to bifurcate trial of the gang special circumstance. Because defendants withdrew
their request for bifurcation after the court denied the request to bifurcate trial of the
special circumstance, we conclude the court’s failure to bifurcate the remaining gang-
related counts and allegations was necessarily harmless. Accordingly, we do not address
whether the court abused its discretion in denying the request to bifurcate the remaining
allegations.
Effective January 1, 2022, Assembly Bill No. 333 amended section 186.22 in
significant ways. Assembly Bill No. 333 also added section 1109, which provides that,
upon request by the defendant, a gang enhancement charged under subdivision (b) or (d)
of section 186.22 shall be tried separately from the question of guilt on the underlying
offense. (§ 1109, subd. (a).) Additionally, pursuant to section 1109, a substantive gang
offense charged under subdivision (a) of section 186.22 shall be tried separately from all
other counts that do not otherwise require gang evidence as an element of the crime.
(§ 1109, subd. (b).) The express language of section 1109 does not require bifurcation of
any other gang charges or allegations. Accordingly, multiple courts have held that
section 1109 does not require bifurcation of the gang special circumstance allegation.
(People v. Superior Court (Farley) (2024) 100 Cal.App.5th 315, 324; People v. Oliva
(2023) 89 Cal.App.5th 76, 92; People v. Montano (2022) 80 Cal.App.5th 82, 111–114
(Montano), disapproved on other grounds in People v. Burgos, supra, 16 Cal.5th at
p. 31.) Defendants do not argue otherwise.
Nonetheless, defendants argue section 1044 afforded the trial court discretion to
bifurcate trial of the gang special circumstance. Section 1044 permits a trial court to
“control all proceedings during the trial, and to limit the introduction of evidence and the
argument of counsel to relevant and material matters, with a view to the expeditious and
effective ascertainment of the truth regarding the matters involved.” This includes the
power to bifurcate certain proceedings, such as proceedings regarding prior conviction

51.
allegations, due to the risk that a jury may consider the prior convictions in deciding the
question of guilt or innocence of the current crime. (People v. Calderon (1994) 9 Cal.4th
69, 75–76.) Indeed, our Supreme Court has held that a court abuses its discretion when it
denies a request to bifurcate trial on a prior conviction allegation where evidence of an
alleged prior conviction would pose a substantial risk of undue prejudice to the
defendant. (Id. at pp. 77–78.) Additionally, even prior to the enactment of section 1109,
section 1044 permitted a trial court to bifurcate trial on gang enhancements to avoid
undue prejudice. (People v. Hernandez, supra, 33 Cal.4th at p. 1049, superseded in part
by § 1109, as stated in People v. Cardenas (2025) 18 Cal.5th 797, 819 (Cardenas).) A
“key factor for courts to consider in deciding whether to bifurcate the trial of gang
allegations [under section 1044] is whether the evidence used to prove the allegations
would have been admissible in any event at a trial on the underlying charges.”
(Cardenas, at p. 819.)
However, the gang special circumstance differs from other gang-related
allegations with respect to bifurcation. The gang special circumstance is one of many
special circumstances set forth in section 190.2, and makes first degree murder
punishable by death or a term of life without the possibility of parole if “[t]he defendant
intentionally killed the victim while the defendant was an active participant in a criminal
street gang, as defined in subdivision (f) of [s]ection 186.22, and the murder was carried
out to further the activities of the criminal street gang.” (§ 190.2, subd. (a)(22).)
Procedures for the trial of special circumstance allegations are set forth in section 190.1,
which provides, in relevant part:

Ҥ 190.1. Death penalty cases; procedures

“A case in which the death penalty may be imposed pursuant to this
chapter shall be tried in separate phases as follows:

“(a) The question of the defendant’s guilt shall be first determined.
If the trier of fact finds the defendant guilty of first degree murder, it shall

52.
at the same time determine the truth of all special circumstances charged
as enumerated in [s]ection 190.2 except for a special circumstance charged
pursuant to paragraph (2) of subdivision (a) of [s]ection 190.2 where it is
alleged that the defendant had been convicted in a prior proceeding of the
offense of murder in the first or second degree.

“(b) If the defendant is found guilty of first degree murder and one
of the special circumstances is charged pursuant to paragraph (2) of
subdivision (a) of [s]ection 190.2 which charges that the defendant had
been convicted in a prior proceeding of the offense of murder of the first or
second degree, there shall thereupon be further proceedings on the question
of the truth of such special circumstance.” (Italics added.)
Our Supreme Court has held that this “statutory scheme plainly contemplates that,
except where the special circumstance alleged is that of a prior murder, the same jury
which determines guilt shall also at the same time determine the truth of the special
circumstance allegation.” (People v. Fierro (1991) 1 Cal.4th 173, 229, abrogated on
other grounds by People v. Letner and Tobin, supra, 50 Cal.4th at pp. 205–207.) Based
on the foregoing, a panel of this court rejected the argument that the trial court has either
a duty under section 1109 or discretion under section 1044 to bifurcate trial of a gang
special circumstance allegation. (Montano, supra, 80 Cal.App.5th at pp. 109–111 &
fn. 10.) Instead, the court determined section 190.1 requires that a gang special
circumstance allegation be tried at the same time as the underlying murder charge.
(Montano, at pp. 110–111.)
Defendants acknowledge the holding in Montano but argue it should apply only in
cases in which the prosecution seeks the death penalty. This argument relies on the title
of section 190.1, “Death penalty cases; procedures,” and the introductory phrase that
refers to “[a] case in which the death penalty may be imposed.” (§ 190.1, boldface
omitted.) However, Montano also rejected this rationale:

“It could be argued the phrase, ‘A case in which the death penalty
may be imposed’ means bifurcation is authorized without limitation where,
as here, the prosecution elects not to seek the death penalty and the
defendant’s maximum exposure is [life without the possibility of parole].
(§ 190.1, subd. (a).) But this interpretation is difficult to reconcile with

53.
other parts of the statutory scheme. Section 190.2 requires special
circumstance allegations to be found true ‘under [s]ection 190.4.’ (§ 190.2,
subds. (a), (c).) Section 190.4 provides, in relevant part: ‘Whenever
special circumstances as enumerated in [s]ection 190.2 are alleged and the
trier of fact finds the defendant guilty of first degree murder, the trier of fact
shall also make a special finding on the truth of each alleged special
circumstance. The determination of the truth of any or all of the special
circumstances shall be made by the trier of fact on the evidence presented
at the trial or at the hearing held pursuant to [s]ubdivision (b) of [s]ection
190.1.’ (§ 190.4, subd. (a).)” (Montano, supra, 80 Cal.App.5th at p. 110,
italics added.)
Thus, this court reasoned, section 190.4 suggests a special circumstance allegation
must be tried at the same time as the underlying murder charge and does not limit its
application to only death penalty cases. (Montano, supra, 80 Cal.App.5th at pp. 110–
111.)
Montano also noted that the “only judicially recognized exception” allowing for a
separate trial of special circumstance allegations “applies where ‘highly prejudicial’
evidence is ‘relevant only to a special circumstance’ or so marginally relevant to the
murder charge as to otherwise be inadmissible under Evidence Code section 1101,
subdivision (b).” (Montano, supra, 80 Cal.App.5th at p. 111, citing People v. Bigelow
(1984) 37 Cal.3d 731, 747–748.) Here, as we have explained, the gang evidence was
admissible to establish motive on the underlying charges, and thus would have been
admissible in the first phase of a bifurcated trial. (People v. Hernandez, supra, 33 Cal.4th
at p. 1049; accord, Cardenas, supra, 18 Cal.5th at p. 819; see People v. Ramos (2022) 77
Cal.App.5th 1116, 1132 [“N]othing in Assembly Bill [No.] 333 limits the introduction of
gang evidence in a bifurcated proceeding where the gang evidence is relevant to the
underlying charges.”], disapproved on other grounds in People v. Burgos, supra, 16
Cal.5th at p. 31.) Furthermore, evidence of the gang’s criminal activities “was not so
minimally probative on the charged offense, and so inflammatory in comparison, that it
threatened to sway the jury to convict regardless of defendants’ actual guilt.”
(Hernandez, at p. 1051.) “To the extent the evidence supporting the gang [special

54.
circumstance] would be admissible at a trial of guilt, any inference of prejudice would be
dispelled, and bifurcation would not be necessary.” (Id. at p. 1050.) As explained, this
case involves an alleged gang-motivated shooting of a perceived rival gang member in
which evidence regarding the gang was both relevant and admissible.
Accordingly, defendants have not met their burden to establish a substantial
danger of prejudice that would support bifurcation of trial of the gang special
circumstance. (Cardenas, supra, 18 Cal.5th at p. 820.) We therefore conclude the court
did not abuse its discretion in denying the request to bifurcate trial of the gang special
circumstance. For the same reasons, defendants have not shown that the denial of their
bifurcation request rendered the trial fundamentally unfair. (See ibid.) Because we
conclude the court did not abuse its discretion, we do not address defendants’ claim that
the failure to bifurcate trial of the gang special circumstance was prejudicial.
As to the other gang charges and allegations, we reiterate that defendants
withdrew their request to bifurcate the gang-related charges and allegations after the court
declined to bifurcate trial of the gang special circumstance, given that trial of the special
circumstance would necessitate admission of gang evidence in the initial phase of trial.
Thus, even if the court had granted the request to bifurcate some or all the remaining
charges and allegations, as it did with the active participation charge and the gang
enhancement, it is clear defendants nonetheless would have withdrawn the request. As
such, the court’s failure to address or bifurcate any remaining charges and allegations was
harmless under any standard. (See People v. Watson (1956) 46 Cal.2d 818, 836; see also
Chapman v. California (1967) 386 U.S. 18, 24.)
In sum, defendants’ claim that the court prejudicially erred in denying the request
to bifurcate all the gang charges and allegations fails.

55.
V. The Instructions Did Not Permit the Jury To Convict King of Murder and
Conspiracy To Murder Under an Imputed Malice Theory
King argues the instructions, and particularly the instructions on conspiracy,
permitted the jury to convict him of murder and conspiracy to commit murder under an
invalid imputed malice theory. The People concede the conspiracy instruction was
erroneous but argue there is no possibility the jury could have applied the instructions to
convict King under an imputed malice theory.18 Rather, the instructions required the jury
to find he aided and abetted the murder with intent to kill. Alternatively, the People
argue any error was harmless because the jury found the drive-by shooting special
circumstance true.
A. Standard of Review
We review de novo whether instructions correctly state the law. (People v. Posey
(2004) 32 Cal.4th 193, 218.) “[W]e view the challenged instruction in the context of the
instructions as a whole and the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible manner.” (People v.
Houston (2012) 54 Cal.4th 1186, 1229; accord, Estelle v. McGuire (1991) 502 U.S. 62,
72.) In addressing how a reasonable juror would understand the instruction, “we consider
the specific language under challenge and, if necessary, the charge in its entirety.
[Citation.] Finally, we determine whether the instruction, so understood, states the
applicable law correctly.” (People v. Warren (1988) 45 Cal.3d 471, 487.) In so doing,
we “ ‘assume that the jurors are intelligent persons and capable of understanding and
correlating all jury instructions which are given.’ ” (People v. Yoder (1979) 100

18 King did not object to the jury instructions in the trial court and the People
therefore argue the claim is forfeited. King contends his claim that the court failed to
properly instruct on the elements of an offense is not a claim that is forfeited by failure to
object at trial. Alternatively, he argues ineffective assistance of counsel. In light of
King’s alternative arguments that the instruction misstated the elements of the offense
and/or his counsel was ineffective, we address the claim on the merits. (People v. Nelson
(2016) 1 Cal.5th 513, 543; People v. Marlow (2004) 34 Cal.4th 131, 150.)

56.
Cal.App.3d 333, 338.) Further, “[i]nstructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.” (People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258.)
B. Applicable Law
As previously stated, “[m]urder is the unlawful killing of a human being … with
malice aforethought.” (§ 187, subd. (a).) Malice may be express or implied. (§ 188,
subd. (a).) “Express malice requires a showing that the assailant ‘ “ ‘either desire[s] the
result [i.e., death] or know[s], to a substantial certainty, that the result will occur.’ ” ’ ”
(Smith, supra, 37 Cal.4th at p. 739.) “Intent to unlawfully kill and express malice are, in
essence, ‘one and the same.’ ” (Ibid.)
Prior to the effective date of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill No. 1437), malice could be imputed to a defendant in certain circumstances. For
example, under the former felony-murder rule, a defendant could be convicted of murder
absent a showing of malice if a death occurred during the commission of an enumerated
felony. (People v. Morris (2026) 19 Cal.5th 671, 677–678; People v. Brothers (2015)
236 Cal.App.4th 24, 31; see former § 189.) Additionally, a defendant could be convicted
of an unintended murder if murder was a natural and probable consequence of a different
offense the defendant aided and abetted.19 (People v. Prettyman (1996) 14 Cal.4th 248,
261.) Furthermore, a defendant could be convicted of an unintended murder if murder
was a natural and probable consequence of a target crime the defendant had conspired to
commit. (See People v. Chiu, supra, 59 Cal.4th at p. 163, citing People v. Kauffman
(1907) 152 Cal. 331, 334; see also People v. Rivera (2015) 234 Cal.App.4th 1350, 1356.)

19 Prior to Senate Bill No. 1437, our Supreme Court eliminated first degree
premeditated murder liability under a natural and probable consequences theory but
maintained this theory of liability for second degree murder. (People v. Chiu (2014) 59
Cal.4th 155, 158–159, 165–166.)

57.
Senate Bill No. 1437 eliminated these forms of imputed malice murder. First, the
bill narrowed the scope of the felony-murder rule “so that a ‘participant in the
perpetration or attempted perpetration of a [specified felony] in which a death occurs’ can
be liable for murder only if ‘[t]he person was the actual killer’; ‘[t]he person was not the
actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder in the first
degree’; or ‘[t]he person was a major participant in the underlying felony and acted with
reckless indifference to human life.’ ” (People v. Arellano (2024) 16 Cal.5th 457, 467–
468, quoting § 189, subd. (e)(1)–(3).) Second, the bill “eliminate[d] liability for murder
as an aider and abettor under the natural and probable consequences doctrine” by
requiring that, “except in cases of felony murder, ‘a principal in a crime shall act with
malice aforethought’ to be convicted of murder.” (People v. Curiel (2023) 15 Cal.5th
433, 449, quoting § 188, subd. (a)(3).) Now, “ ‘[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.’ ” (Curiel, at p. 449.)
Direct aiding and abetting remains a valid theory of murder after Senate Bill
No. 1437. “ ‘[D]irect aiding and abetting is based on the combined actus reus of the
participants and the aider and abettor’s own mens rea.’ ” (People v. Reyes, supra, 14
Cal.5th at pp. 990–991.) “ ‘ “[A]n aider and abettor with the necessary mental state is
guilty of the intended crime.” ’ ” (In re Lopez, supra, 14 Cal.5th at p. 579.) “[I]n order
for an accomplice to be liable for directly aiding and abetting a murder, the accomplice
must ‘ “aid[] the commission of that offense with ‘knowledge of the direct perpetrator’s
unlawful intent and [with] an intent to assist in achieving those unlawful ends.’ ” ’ ”
(People v. Morris (2026) 19 Cal.5th 671, 691.) To be liable as a direct aider and abettor
to first degree murder, the aider and abettor must form “ ‘his [or her] own culpable
intent’ ” (In re Lopez, supra, at p. 579), must know “ ‘ “ ‘the full extent of the
perpetrator’s criminal purpose’ ” ’ ” (id. at p. 585), and must aid or encourage the
commission of the murder “with the intent or purpose of committing, encouraging, or

58.
facilitating its commission” (ibid.). (See People v. McCoy, supra, 25 Cal.4th at pp. 1118,
1122.) In short, “ ‘the aider and abettor must know and share the murderous intent of the
actual perpetrator.’ ” (In re Lopez, at p. 585.)
“The crime of conspiracy is defined in the Penal Code as ‘two or more persons
conspir[ing]’ ‘[t]o commit any crime,’ together with proof of the commission of an overt
act ‘by one or more of the parties to such agreement’ in furtherance thereof. [Citations.]
‘Conspiracy is a “specific intent” crime…. The specific intent required divides logically
into two elements: (a) the intent to agree, or conspire, and (b) the intent to commit the
offense which is the object of the conspiracy…. To sustain a conviction for conspiracy to
commit a particular offense, the prosecution must show not only that the conspirators
intended to agree but also that they intended to commit the elements of that offense.’ ”
(People v. Swain (1996) 12 Cal.4th 593, 600.) “ ‘[A]ll conspiracy to commit murder is
necessarily conspiracy to commit premeditated and deliberated first degree murder.’ ”
(People v. Beck and Cruz (2019) 8 Cal.5th 548, 641.) “[A] conviction of conspiracy to
commit murder requires a finding of intent to kill .…” (Swain, at p. 607.) Thus,
conspiracy to commit murder may not be based on a theory of implied malice and instead
requires proof of express malice. (Beck and Cruz, at p. 642.)
C. Relevant Jury Instructions
King concedes that the jury was properly instructed on aiding and abetting
principles. The instructions informed the jury that, to find King guilty of aiding and
abetting a crime, it was required to find: “1. The perpetrator committed the crime; [¶] 2.
The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or
during the commission of the crime, the defendant intended to aid and abet the
perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct
did in fact aid and abet the perpetrator’s commission of the crime.” Additionally, the jury
was instructed, “Someone aids and abets the crime of murder if he knows of the
perpetrator’s unlawful purpose and with the specific intent to kill, he specifically intends

59.
to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.”
The jury received additional instructions regarding conspiracy. The jury was
instructed with CALCRIM No. 415, in relevant part as follows:

“Defendants are charged in Count 4 with conspiracy to commit first
degree murder in violation of Penal Code section 182.

“To prove that a defendant is guilty of this crime, the People must
prove that:

“1. The defendant intended to agree and did agree with one or
more of the other defendant [sic] or co-participants to commit first
degree murder;

“2. At the time of the agreement, the defendant and one or
more of the other alleged members of the conspiracy intended that one
or more of them would commit first degree murder;

“3. One of the defendants, or co-participants, or all of them
committed the following alleged overt act to accomplish first degree
murder: [¶] … [¶]

“AND

“4. This overt act was committed in California.”
Additionally, this instruction informed the jury that, to decide whether a
member of the conspiracy intended to commit first degree murder, it should “refer
to the separate instructions that I will give you on that crime.” The jury also was
informed, “The People must prove that the members of the alleged conspiracy had
an agreement and intent to commit first degree murder.”
The jury also was instructed with CALCRIM No. 417, in relevant part as follows:

“A member of a conspiracy is criminally responsible for the crimes
that he or she conspires to commit, no matter which member of the
conspiracy commits the crime.

60.
“A member of a conspiracy is also criminally responsible for any act
of any member of the conspiracy if that act is done to further the conspiracy
and that act is a natural and probable consequence of the common plan or
design of the conspiracy. This rule applies even if the act was not intended
as part of the original plan. Under this rule, a defendant who is a member
of the conspiracy does not need to be present at the time of the act.

“A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of the
circumstances established by the evidence.

“A member of a conspiracy is not criminally responsible for the act
of another member if that act does not further the common plan or is not a
natural and probable consequence of the common plan.

“To prove that the defendant is guilty of the crime charged in Count
4, the People must prove that:

“1. The defendant conspired to commit first degree murder;

“2. A member of the conspiracy committed first degree
murder to further the conspiracy;

“AND

“3. First degree murder was a natural and probable
consequence of the crime that the defendant conspired to commit.

“To prove that the defendant is guilty of the crime charged in Count
5, the People must prove that:

“1. The defendant conspired to commit shooting from a
motor vehicle;

“2. A member of the conspiracy committed shooting from a
motor vehicle to further the conspiracy;

“AND

“3. Shooting from a motor vehicle was a natural and
probable consequence of the crime that the defendant conspired to
commit.” (First italics added.)

61.
The jury also was instructed on the law of murder, including the requirement that
the defendant act with malice aforethought. The jury was advised that the defendants
were being prosecuted for first degree murder under two theories: (1) deliberation and
premeditation, and (2) discharge of a firearm from a motor vehicle. The jury was
instructed that both theories required a finding that the defendants intended to kill.
Finally, with regard to the special circumstance allegation, the jury was instructed,
“If you decide that a defendant is guilty of first degree murder but was not the actual
killer, then, when you consider the special circumstance[] of shooting a firearm from a
motor vehicle … you must also decide whether the defendant acted with the intent to kill.
In order to prove these special circumstances for a defendant who is not the actual killer
but who is guilty of first degree murder as an aider and abettor or a member of a
conspiracy, the People must prove that the defendant acted with the intent to kill.” The
jury further was instructed that, to find this special circumstance true, it was required to
find that (1) Wandick shot a firearm from a motor vehicle, killing Williams; (2) Wandick
intentionally shot a person who was outside the vehicle; and (3) “[a]t the time of the
shooting, the defendant intended to kill.”
D. Analysis
King contends the conspiracy instruction permitted the jury to convict him of
murder and conspiracy to commit murder under an imputed malice theory. We disagree.
No natural and probable consequences instruction was given on the murder count.
Rather, to find King guilty of first degree murder as an aider and abettor, the jury was
required to find King knew of the perpetrator’s unlawful purpose and, with the specific
intent to kill, intended to aid and abet, and did aid and abet in the commission of “the
crime.” “[T]he crime” specifically referred to in this instruction was “the crime of
murder.” The jury also was required to find that King knew the perpetrator intended to
commit “the crime,” intended to aid and abet the perpetrator in committing “the crime,”
and did in fact aid and abet the perpetrator in the commission of “the crime.”

62.
Additionally, the instructions on the two theories of first degree murder, i.e., deliberation
and premeditation and discharge of a firearm from a motor vehicle, as well as on the
special circumstance required the jury to find that King intended to kill. Thus, the
instructions on murder and aiding and abetting required the jury to find all elements of
murder under a valid theory.
The conspiracy instruction similarly required the jury to find that King intended to
agree, and did agree, to commit first degree murder, with the intent that one or more of
his coconspirators would commit first degree murder. To decide whether the members of
the conspiracy intended to commit first degree murder, the jury was instructed to refer to
the instructions on first degree murder, which, as stated, very clearly required the jury to
find King acted with intent to kill.
We acknowledge the jury was provided an inapplicable portion of CALCRIM
No. 417 regarding the natural and probable consequences doctrine, which informed the
jury that “[a] member of a conspiracy is also criminally responsible for any act of any
member of the conspiracy if that act is done to further the conspiracy and that act is a
natural and probable consequence of the common plan or design of the conspiracy.”
However, to find King guilty of conspiracy to commit murder, the jury was required to
find he conspired to commit first degree murder, a member of the conspiracy committed
first degree murder, and “[f]irst degree murder was a natural and probable consequence
of the crime that the defendant conspired to commit.” Thus, this instruction required the
jury to find King conspired to commit first degree murder and that first degree murder
was a natural and probable consequence of that same crime. Although this instruction
was perhaps circular, it did not allow the jury to impute malice to King based solely on
his participation in some crime other than first degree murder, such as shooting from or at

63.
a motor vehicle.20 There is no reasonable likelihood the jury applied this instruction in
an impermissible manner as King suggests.
King also argues the conspiracy instruction permitted the jury to convict him of
the murder as a natural and probable consequence of “a general gang conspiracy to
murder rivals.” This argument is unfounded. First, as we have explained, the conspiracy
instruction did not permit the jury to convict King of murder under a natural and probable
consequences theory, let alone a generalized theory of conspiracy to murder unspecified
gang rivals. Additionally, King was charged with murdering Williams and no other
person. All the overt acts in support of the conspiracy that were alleged in the
information and included in the jury instruction pertained to the murder of Williams. The
prosecutor did not argue a general gang conspiracy to murder unspecified rivals. No such
theory was presented to the jury. There is no possibility the jury convicted King under
such theory.
King suggests the court’s response to a jury question “reinforced” to the jury that
King was vicariously responsible for Wandick’s actions. With regard to the special
circumstance allegation, the jury asked, “[A]re we to only consider Taeviyon Wandick
for this enhancement? Was putting only this defendants [sic] name intentional?”21 The
court responded, “This enhancement is alleged against both defendants. Please refer to
CALCRIM instructions 702 and 735.” King does not suggest the court’s response was

20 The instruction on conspiracy to commit shooting from a motor vehicle
expressly referenced count 5. We therefore disagree with King that the jury may have
applied this instruction to other offenses or allegations. Moreover, even if the jury
considered this instruction in relation to the special circumstance allegation, which also
required a finding that Wandick shot from a motor vehicle, the instruction on the special
circumstance clearly required the jury to find King acted with intent to kill.
21 As stated, the instruction provided the jury could find this special circumstance
true if it found that (1) Wandick shot a firearm from a motor vehicle, killing Williams;
(2) Wandick intentionally shot a person who was outside the vehicle; and (3) “[a]t the
time of the shooting, the defendant intended to kill.” (Italics added.)

64.
erroneous. There is no dispute that the special circumstance was applicable to King upon
appropriate findings regarding his actions and intent. Both instructions referred to by the
court required the jury to find that King intended to kill for the special circumstance to be
applicable. The court’s response therefore did not “reinforce” to the jury that it could
find King guilty under an imputed malice theory absent such finding.
King also suggests the prosecutor’s argument further contributed to the error
allowing the jury to convict upon a finding of imputed malice. King concedes that the
prosecutor argued both that King intended to aid in the shooting and intended to kill, and
that defendants had a plan to hunt down Williams and kill him. Additionally, in relation
to count 2, the charge of shooting at an occupied motor vehicle, the prosecutor argued
King was guilty of this offense as an aider and abettor. In relation to this count, the
prosecutor argued:

“A member of a conspiracy is also criminally responsible for any act of any
member of the conspiracy if that act is done in – to further the conspiracy,
and that act is a natural and probable consequence of the common plan or
design of the conspiracy. So this is taken directly from CALCRIM [No.]
417. So, a natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes.

“All that being said, the defendants conspired to commit murder.
And how was that murder to be carried out? Well, it was to be carried out
by Denell King driving up alongside the Camaro, and Taeviyon Wandick
shooting at Daniell Williams, repeatedly. In order to murder Daniell by
shooting at him, a necessary and probable consequence of that is shooting
at an occupied motor vehicle. So the conspiracy is to shoot and kill Daniell
Williams, but Denell King is guilty of that, specifically as to Count 2, for
shooting at an occupied vehicle, as the aider and abettor and as a
coconspirator.”
This excerpt from the prosecutor’s argument on the offense of conspiracy to
commit shooting at an occupied motor vehicle is not a model of clarity. However, we
disagree that this argument suggests the jury could find King guilty of murder or
conspiracy to commit murder under a natural and probable consequences theory. The

65.
prosecutor seemed to be arguing that the offense of shooting at an occupied motor vehicle
was a necessary step in effectuating the conspiracy to commit murder. It appears the
prosecutor may have intended to suggest that shooting at an occupied motor vehicle was
a natural and probable consequence of the conspiracy to commit murder. However, the
prosecutor’s argument cannot reasonably be construed to suggest the jury could find King
guilty of conspiracy to commit murder, let alone first degree murder itself, based solely
on his aiding and abetting the offense of shooting at an occupied motor vehicle without a
finding of express malice.
Lastly, King attempts to analogize this case to People v. Offley (2020) 48
Cal.App.5th 588. However, Offley involved a conspiracy to commit assault with a
firearm, and the natural and probable consequences portion of the conspiracy instruction
therefore could have been interpreted by the jury to allow for a murder conviction under
that theory. (Id. at p. 599.) Here, the jury was required to find that King conspired to
commit first degree murder and intended that he or one of his coconspirators would
commit the murder. Offley is therefore distinguishable.
In sum, there is no possibility the jury found King guilty of first degree murder or
conspiracy to commit murder under a natural and probable consequences or other implied
malice theory.
VI. Substantial Evidence Supports the Jury’s Gang Findings
On counts 1, 2, and 4, the jury found true gang enhancements pursuant to section
186.22, subdivision (b)(1), and gang-related firearm enhancements pursuant to section
12022.53, subdivisions (d) and (e)(1). Defendants argue these findings are not supported
by substantial evidence that the offenses provided a common benefit to the gang that was
more than reputational, or that defendants acted with the intent to benefit, promote, or
further the activities of the gang. We disagree.

66.
A. Applicable Law
With certain exceptions not relevant here, section 186.22, provides for enhanced
punishment where “a person … is convicted of a felony committed for the benefit of, at
the direction of, or in association with a criminal street gang, with the specific intent to
promote, further, or assist in criminal conduct by gang members.” (§ 186.22, subd.
(b)(1).) “[T]o benefit, promote, further, or assist means to provide a common benefit to
members of a gang where the common benefit is more than reputational. Examples of a
common benefit that are more than reputational may include, but are not limited to,
financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or
intimidation or silencing of a potential current or previous witness or informant.” (Id.,
subd. (g).)
Section 12022.53, subdivision (d) requires the imposition of a term of 25 years to
life where the defendant “personally and intentionally discharges a firearm and
proximately causes great bodily injury … or death.” Section 12022.53, subdivision (e)(1)
extends liability for the firearm use of another to a principal who did not personally use
or discharge the weapon, but who violated subdivision (b) of section 186.22. Thus,
imposition of this vicarious firearm enhancement requires proof the elements of section
186.22, subdivision (b)(1) are satisfied.
B. For the Benefit of, at the Direction of, or in Association with the Gang
“Not every crime committed by gang members is related to a gang.” (People v.
Albillar (2010) 51 Cal.4th 47, 60, superseded by statute on another ground by Assem.
Bill No. 333.) As stated, to prove a section 186.22, subdivision (b)(1) enhancement, “the
felony must be committed … for the benefit of, at the direction of, or in association with
a criminal street gang.” (People v. Renteria (2022) 13 Cal.5th 951, 964 (Renteria); see
§ 186.22, subd. (b)(1).)

67.
Here, defendants stipulated that they were “active participants” in the Eastside
Crips, a criminal street gang. As previously explained, the evidence presented at trial
was sufficient to show that defendants, acting together, targeted and pursued Williams
with the intent to shoot and kill him. The evidence also supports an inference that
defendants targeted Williams because of his perceived association with a rival gang, the
Country Boy Crips. Again, evidence from Williams’s publicly available social media
suggested he was at least associated with the Country Boy Crips, and Braughton testified
the Country Boy Crips and Eastside Crips are rivals who have a history of violence,
homicides, and shootings between them. Additionally, Williams’s identical twin brother
was either a member or associate of the Country Boy Crips, which could lead rivals to
associate Wiliams with the gang or target him due to this relationship. Williams also was
memorialized, along with another Country Boy Crips member or associate, in a video
tribute posted online by a different Country Boy Crips member, and using text associated
with the Country Boy Crips. This video suggests the shooting may have been perceived
by Country Boy Crips members to be gang related. We have rejected defendants’
argument that this evidence is too speculative to support an inference that the shooting
was motivated by gang rivalry.
Accepting all logical inferences the jury may have drawn from the evidence, as we
are required to do (People v. Flores, supra, 9 Cal.5th at p. 411), there is substantial
evidence to support a finding that defendants targeted Williams due to his perceived
association with a rival gang. This constitutes a benefit to the gang that is more than
reputational and is sufficient to support the jury’s findings on the gang enhancements and
gang-related firearm enhancements that the offenses were committed for the benefit of, at
the direction of, or in association with the gang. (§ 186.22, subd. (g) [listing “targeting a
perceived or actual gang rival” as a common benefit that is more than reputational];
Renteria, supra, 13 Cal.5th at p. 966 [any “cognizable ‘benefit’ ” to the gang must be
more than purely reputational]; People v. Sek (2022) 74 Cal.App.5th 657, 667.)

68.
C. Intent To Provide a Common Benefit to the Gang
In supplemental briefing, Wandick also contends the evidence fails to prove the
offenses in counts 1, 2, and 4 were committed with “gang-related intent.” Again,
Wandick contends there is no evidence of a gang-related motive for the murder, other
than King’s and Wandick’s membership in a gang. Thus, Wandick characterizes this as a
personal crime that happens to have been committed by two gang members acting in
concert, but without evidence of a specific intent to further or benefit the gang. King
joins in this argument.
Again, we disagree with Wandick’s characterization of the evidence. “ ‘ “[I]ntent
is rarely susceptible of direct proof and usually must be inferred from the facts and
circumstances surrounding the offense.” ’ ” (People v. Franklin (2016) 248 Cal.App.4th
938, 949.) Additionally, in cases involving offenses perpetrated by gang members acting
in concert, evidence which “ ‘establishes that the defendant intended to and did commit
the charged felony with known members of a gang,’ ” raises an inference “ ‘that the
defendant had the specific intent to promote, further, or assist criminal conduct by those
gang members.’ ” (Renteria, supra, 13 Cal.5th at p. 963.) In other words, the
involvement of multiple gang members in the charged offense is “circumstantial evidence
of an intent to promote the criminal activity of other gang members, in connection with
the very same criminal offense.” (Ibid.) So long as the gang benefit intended to be
derived from this conduct is more than reputational, it is sufficient to support the gang
enhancement. (§ 186.22, subd. (g).) Targeting a perceived rival constitutes a common
benefit to the gang that is more than reputational. (Ibid.) For reasons we have now
repeatedly stated, the evidence supports a finding that defendants, acting in concert,
intended to and did commit the offenses of first degree murder, shooting at an occupied
vehicle, and conspiracy to commit murder by intentionally targeting Williams as a
perceived rival gang member. Thus, the evidence is sufficient to support a finding that

69.
defendants intended to provide a common benefit to the gang that is more than
reputational.
Wandick relies heavily on Renteria to support his argument that the evidence here
is insufficient to support a finding of intent to benefit the gang. However, Renteria is
distinguishable. There, a single defendant “walked through a neighborhood in Tulare and
fired a gun at a house. Then, after a dog barked next door, Renteria fired the gun at that
house, too.” (Renteria, supra, 13 Cal.5th at p. 957.) Our Supreme Court granted review
of his appeal “to address the showing the prosecution must make to establish that …
section 186.22 gang enhancements or penalties apply to a crime committed by a gang
member who acts alone.” (Ibid., italics added.) The high court noted that, in cases
involving offenses perpetrated by gang members acting in concert, the fact that the
defendants acted in concert is often sufficient to establish an intent to promote criminal
activity of other gang members. (Id. at p. 963.) However, in lone actor cases, more is
required. (Id. at p. 965.) The lone actor must both be “aware of the type of criminal
activity the gang members pursue” (ibid.) and must intend to promote criminal activity
other than the charged offense (id. at p. 966).
The court also noted several factors relevant to whether “expert reputation
testimony” was sufficient to establish the defendant’s “gang-related goals in committing
a particular crime.”22 (Renteria, supra, 13 Cal.5th at p. 967, italics added.) These factors
included “whether the defendant’s gang membership was apparent to observers, whether
the victim was a gang member or rival of the defendant’s gang, and whether retaliation
for prior gang activity or disputes prompted the defendant’s crime.” (Id. at p. 968.) The

22 The court considered expert reputation testimony because, prior to Assembly
Bill No. 333, evidence of an intent to provide a reputational benefit to the gang was
sufficient to show a defendant intended to promote, further, or assist in criminal conduct
by gang members, as required by section 186.22, subdivision (b)(1). (Renteria, supra, 13
Cal.5th at pp. 961, fn. 6, 966.)

70.
high court explained that these factors limit reputation testimony to that “grounded in
specific facts that show the defendant acted on behalf of a gang rather than for personal
reasons.” (Ibid.) Ultimately, the court determined the evidence in Renteria was
insufficient to satisfy this showing in a lone actor case because there was no evidence the
defendant intended his actions to be attributed to the gang, identified himself or his gang
during the shooting, or took credit for it afterward; that others believed the shooting was
attributable to the gang or that they feared the gang’s activities as a result of the shooting;
that the defendant intended the shooting to contribute to the gang’s rivalry with another
gang; or that the defendant was so closely associated with the gang to be familiar with its
pattern of criminal gang activity. (Id. at pp. 970–972.)
Because this is not a lone actor case, Renteria is of minimal relevance to our
analysis. Additionally, unlike in Renteria, there is evidence in this case to suggest the
victim of the crimes was associated with a rival gang and that gang rivalry motivated the
crimes. The evidence suggesting defendants targeted Williams as a perceived gang rival
distinguishes this case from those that Wandick relies on to suggest this is merely a
personal crime that happened to have been committed by gang members. (See People v.
Soriano (2021) 65 Cal.App.5th 278, 289–290 [possession of a concealed knife in gang
territory is insufficient to show intent to benefit the gang]; People v. Ramon (2009) 175
Cal.App.4th 843, 851 [no facts supported a finding that the defendants were acting on
behalf of the gang when they possessed a stolen truck and firearm].)
Based on the foregoing, we conclude substantial evidence supports the jury’s
finding that defendants acted with the specific intent to promote, further, or assist in
criminal conduct by gang members where the common benefit to the gang is more than
reputational. Accordingly, the evidence is sufficient to support the jury’s true findings on
the gang and firearm enhancements.

71.
VII. Modification of the Verdict as to Count 5
Wandick argues his conviction for gang conspiracy must be reversed because the
target offense alleged in the information is unsupported by the evidence. King joins in
this argument. The People concede the target offense alleged is unsupported by the
evidence but urge us to modify the verdicts to reflect a lesser included target offense.
Wandick argues modification is improper in the circumstances presented here. We agree
with the People and modify the verdicts accordingly.
A. The Target Offense Is Unsupported by the Evidence
The information charged defendants in count 5 with gang conspiracy for
promoting, furthering, assisting, or benefitting from felonious criminal conduct, “to wit:
Penal Code section 26100[, subdivision] (c).” (Some capitalization omitted.) Section
26100, subdivision (c) is violated by the willful and malicious discharge of a firearm
from a motor vehicle “at another person other than an occupant of a motor vehicle.”
(Italics added.)
Wandick argues the gang conspiracy conviction is unsupported by the evidence
because there is no evidence that a firearm was discharged at anyone other than an
occupant of a motor vehicle. King joins in this argument. The People concede the
evidence does not support a finding that defendants promoted, furthered, assisted, or
benefitted from an attempted or completed violation of section 26100, subdivision (c)
through discharge of a firearm at a person who was not an occupant of a motor vehicle.
We accept the People’s concession that the target offense alleged is unsupported by the
evidence.
B. The Verdicts May Be Modified To Reflect an Included Target Offense
The People ask us to modify the verdicts to reflect the included target crime of
violation of section 26100, subdivision (d), which requires only discharge of a firearm
from a motor vehicle. Wandick initially acknowledged we have discretion to modify the
verdict to reflect a lesser target offense but suggested we should not do so because the

72.
prosecution exercised its discretion to charge the gang conspiracy based on the greater
offense. In his reply brief, Wandick additionally argues the conviction may not be
reduced in this manner because a violation of section 26100, subdivision (d) is a
misdemeanor, and the offense of gang conspiracy must be based on a target felony.
Under sections 1181 and 1260, “an appellate court that finds that insufficient
evidence supports the conviction for a greater offense may, in lieu of granting a new trial,
modify the judgment of conviction to reflect a conviction for a lesser included offense.”
(People v. Navarro (2007) 40 Cal.4th 668, 671; see § 1181, subd. (6) [power to “modify
the verdict, finding or judgment”].) In a conspiracy case, the defendant may be convicted
of conspiring to commit a lesser crime included in the alleged target offense. (Cf. People
v. Fenenbock (1996) 46 Cal.App.4th 1688, 1706 [“the trial court has a sua sponte
obligation to instruct on lesser included target offenses if there is evidence from which
the jury could find a conspiracy to commit a lesser offense”].) There is no dispute that
we have the discretion to modify the convictions to reflect a lesser included target
offense. Nor is there any dispute that discharge of a firearm from a motor vehicle as set
forth in section 26100, subdivision (d) is a lesser included offense of the offense set forth
in section 26100, subdivision (c).
Nonetheless, Wandick contends a violation of section 26100, subdivision (d) may
not serve as a target offense for a gang conspiracy pursuant to section 182.5 because the
offense set forth in section 26100, subdivision (d) is a misdemeanor. It is well settled that
“[a] [section] 182.5 conspiracy relates only to the commission of a felony.” (People v.
Johnson (2013) 57 Cal.4th 250, 262.) Thus, a gang conspiracy “requires the actual
commission of felonious criminal conduct as either an attempt or a completed crime.”
(Ibid., italics added.) However, contrary to Wandick’s assertion, a violation of section
26100, subdivision (d) is a “ ‘wobbler,’ ” meaning it is “chargeable or, in the discretion
of the court, punishable as either a felony or a misdemeanor; that is; [it is] punishable
either by a term in state prison or by imprisonment in county jail and/or by a fine.”

73.
(People v. Park (2013) 56 Cal.4th 782, 789; see § 26100, subd. (d) [stating the offense is
“punishable by imprisonment in the county jail for not more than one year or in the state
prison”].) An attempted or completed felony violation of section 26100, subdivision (d)
may appropriately serve as the target offense for a gang conspiracy conviction.
We likewise reject Wandick’s argument that we should not modify the verdict to
reflect a lesser included target offense because the prosecution exercised its discretion to
charge a greater target offense. Wandick cites no authority in support of this argument,
which would apply in all, or nearly all, cases in which such modification is permissible.
The prosecution’s charging decisions do not circumscribe our statutory discretion to
modify a verdict to reflect a lesser included target offense in the circumstances presented
here.
Based on the foregoing, we will modify the verdicts on count 5 to reflect the gang
conspiracy convictions are predicated upon a felonious violation of section 26100,
subdivision (d). Because the sentence for gang conspiracy is dependent upon the
sentence applicable to the target offense (§ 182.5; see § 182, subd. (a)), our modification
of the verdicts also requires modification of the sentences. In light of this and other
sentencing issues discussed below, we vacate the sentences on count 5 and remand for a
full resentencing. Our disposition of this argument moots defendants’ arguments that the
jury was erroneously instructed on an element of the target offense and that the sentences
on count 5 were improperly calculated based on a target offense of murder.

VIII. Active Participation in a Criminal Street Gang Is Not a Lesser Included
Offense of Gang Conspiracy
Wandick argues his conviction for active participation in a criminal street gang
must be reversed because it is a lesser included offense of gang conspiracy. King joins in
this argument. We disagree.

74.
“In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38
Cal.4th 1224, 1226.) However, “[a] judicially created exception to the general rule
permitting multiple conviction ‘prohibits multiple convictions based on necessarily
included offenses.’ ” (Id. at p. 1227.) “When a defendant is found guilty of both a
greater and a necessarily lesser included offense arising out of the same act or course of
conduct, and the evidence supports the verdict on the greater offense, that conviction is
controlling, and the conviction of the lesser offense must be reversed.” (People v.
Sanders (2012) 55 Cal.4th 731, 736; accord, People v. Sanchez (2001) 24 Cal.4th 983,
987 [a defendant cannot be convicted of both a greater offense and a necessarily included
offense based on the commission of the same act].) An offense is necessarily included
within another “ ‘if the statutory elements of the greater offense include all of the
statutory elements of the lesser offense, such that all legal elements of the lesser offense
are also elements of the greater. [Citation.] In other words, “ ‘[i]f a crime cannot be
committed without also necessarily committing a lesser offense, the latter is a lesser
included offense within the former.’ ” ’ ” (People v. Robinson (2016) 63 Cal.4th 200,
207.)
Section 186.22, subdivision (a) describes the offense of active participation in a
criminal street gang as follows:

“A person who actively participates in a criminal street gang with
knowledge that its members engage in, or have engaged in, a pattern of
criminal gang activity, and who willfully promotes, furthers, or assists in
felonious criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, or two or three years.”
Section 182.5 describes the offense of gang conspiracy as follows:

“Notwithstanding subdivisions (a) or (b) of [s]ection 182, any person
who actively participates in any criminal street gang, as defined in
subdivision (f) of [s]ection 186.22, with knowledge that its members

75.
engage in or have engaged in a pattern of criminal gang activity, as defined
in subdivision (e) of [s]ection 186.22, and who willfully promotes, furthers,
assists, or benefits from any felonious criminal conduct by members of that
gang is guilty of conspiracy to commit that felony and may be punished as
specified in subdivision (a) of [s]ection 182.” (Italics added.)
The elements of the crimes of active participation in a gang and gang conspiracy
are nearly identical. However, whereas active participation may be committed by any of
the alternative means of promoting, furthering, or assisting in felonious conduct by gang
members, gang conspiracy may be committed by any of the alternative means of
promoting, furthering, assisting, or benefitting from the felonious conduct of gang
members. Although all the elements of the active participation offense are also included
in the gang conspiracy offense, it is possible to commit gang conspiracy without
committing the active participation offense if the defendant merely benefits from the
felonious criminal conduct of fellow gang members. Thus, because gang conspiracy may
be committed without necessarily committing the offense of active participation in a
criminal street gang, active participation is not a necessarily included lesser offense.
(People v. Robinson, supra, 63 Cal.4th at p. 207; cf. People v. Hinojos (2025) 111
Cal.App.5th 19, 33–34 [utilizing the same reasoning to hold that § 654 did not bar
imposition of the gang enhancement on the defendant’s gang conspiracy convictions].)
IX. Cumulative Error
Wandick argues he was prejudiced by the cumulative effect of several errors
alleged herein, specifically the denial of the defense motions to bifurcate trial of the gang
allegations, the admission of gang-related evidence to show motive and intent, and an
erroneous instruction on the target offense of the gang conspiracy that permitted the jury
to convict on gang conspiracy based on shooting a firearm “at another person who was
not an occupant in the same motor vehicle,” as opposed to shooting at someone “other
than an occupant of a motor vehicle,” as required by section 26100, subdivision (c).

76.
As to the first two of these claims, we have found no error. We have found the
third claim of error moot. As such, there is no cumulative prejudice to evaluate. (See
People v. Lopez (2018) 5 Cal.5th 339, 371.) Accordingly, the claim of cumulative error
necessarily fails.
X. Resentencing Is Required on Count 2
The parties agree defendants’ respective sentences on count 2 violate due process
but disagree as to the appropriate remedy and sentence. We vacate the sentences on
count 2 and remand for resentencing.
A. The Sentences on Count 2 Violate Due Process
The court sentenced each defendant on count 2 to a term of 70 years to life, stayed
pursuant to section 654. The court did not specify how it calculated the 70-year
minimum term; however, it appears the calculation was made pursuant to section 186.22,
subdivision (b)(4). As the parties agree, the court erred in sentencing defendants
pursuant to section 186.22, subdivision (b)(4) because this alternate penalty provision
was not alleged in the information.
Subdivision (b)(4) of section 186.22 is an alternate penalty provision “prescribing
indeterminate terms of life imprisonment for those who committed certain enumerated
felonies under the same gang-related circumstances” described elsewhere in section
186.22. (People v. Lopez (2022) 12 Cal.5th 957, 970; Robert L. v. Superior Court (2003)
30 Cal.4th 894, 899–900.) It states that “[a] person who is convicted of a felony
enumerated in this paragraph” that is also committed under circumstances meeting the
requirements of subdivision (b)(1) of section 186.22 “shall, upon conviction of that
felony, be sentenced to an indeterminate term of life,” with a specified minimum term.
(§ 186.22, subd. (b)(4).) One of the enumerated felonies is a violation of section 246, the
offense of which defendants were convicted on count 2. (§ 186.22, subd. (b)(4)(B).) For
this offense, the specified minimum term pursuant to section 186.22, subdivision (b)(4) is

77.
the greater of either (1) the term applicable to the underlying conviction, including any
enhancements, or (2) 15 years. (§ 186.22, subd. (b)(4)(A)–(B).)
“A defendant has a due process right to fair notice of any sentencing allegation
that, if proven, will increase the punishment for a crime.” (In re Vaquera (2024) 15
Cal.5th 706, 717.) Thus, “[a]s a matter of due process, an alternative punishment
provision must be pleaded and proved.” (People v. Sweeney (2016) 4 Cal.App.5th 295,
301; see Robert L. v. Superior Court, supra, 30 Cal.4th at p. 900, fn. 6.) The failure to
plead an alternate penalty provision deprives the defendant of fair notice of his or her
sentencing exposure by failing to inform him or her that an alternate sentence carrying a
higher term will be pursued. (See In re Vaquera, at p. 723.) Additionally, a defendant is
deprived of adequate notice if punishment is imposed under one provision, and an
enhancement was alleged under a different, mutually exclusive provision, even if facts
supporting the alternate allegation are contained in the information. (Sweeney, at p. 301
[information alleging gang enhancements under § 186.22, subd. (b) did not give the
defendant adequate notice that an alternate sentence under subd. (d) might apply]; accord,
In re Vaquera, at pp. 720–724 [information alleging One Strike allegation pursuant to
§ 667.61, subds. (b)/(e)(4) for an offense against more than one victim was inadequate to
provide the defendant notice the prosecution might seek a One Strike sentence pursuant
to § 667.61, subd. (j)(2) for an offense against a child under 14 years of age, even though
the facts supporting the allegation were contained in the information].) Furthermore,
even if the statute alleged in the information cross-references the statute under which an
alternate penalty is pursued, the information fails to inform the defendant that the
prosecution will seek to impose the more stringent sentence; therefore, imposition of the
higher alternate sentence would violate due process. (In re Vaquera, at p. 723.)

78.
Here, as to each defendant, the information alleged a gang enhancement to count 2
pursuant to section 186.22, subdivision (b)(1) and alleged that the underlying felony was
a serious felony. The alternate penalty provision contained in section 186.22, subdivision
(b)(4) was not alleged. Accordingly, defendants did not receive adequate notice that their
sentencing exposure included the alternate penalty available under section 186.22,
subdivision (b)(4). We agree with the parties that defendants’ sentences on count 2 must
be vacated.
B. Remand for Resentencing Is the Appropriate Remedy
The parties disagree as to the appropriate remedy. Wandick asks us to modify the
sentence on count 2 to an appropriate sentence. King joins in this request. The People
suggest the matter should be remanded for resentencing. We agree with the People that
resentencing is the proper remedy, particularly given that we have determined we also
must remand for resentencing on count 5. (People v. Buycks (2018) 5 Cal.5th 857, 893;
People v. Shaw (2020) 56 Cal.App.5th 582, 588–589 [remanding for a full resentencing
hearing as to all counts in light of an unauthorized enhancement]; People v. Delgado
(2010) 181 Cal.App.4th 839, 855 [“ ‘It is perfectly proper for this court to remand for a
complete resentencing after finding an error with respect to part of a sentence .…’ ”];
accord, People v. Lopez, supra, 12 Cal.5th at pp. 975–976 [remanding for resentencing
after finding the alternate penalty provision set forth in § 186.22, subd. (b)(4) to be
inapplicable].)

79.
C. On Remand, the Court May Not Impose Both Enhancements
Defendants argue that section 12022.53, subdivision (e)(2) barred the trial court
from sentencing them on count 2 under both the alternate gang-related penalty provision
and the gang-related firearm enhancement.23 Because we conclude the alternate penalty
provision is inapplicable, this argument is moot. However, to provide guidance for
resentencing on remand, we address the parties’ related argument regarding whether both
the gang enhancement (§ 186.22, subd. (b)(1)) and gang-related firearm enhancement
(§ 12022.53, subds. (d), (e)(1)) may be imposed on count 2. We conclude that only one
of these enhancements may be imposed as to each defendant on count 2.
1. Applicable Law
Section 12022.53 provides sentencing enhancements of increasing duration where
the defendant has committed specified felonies in which a firearm was used. For the
majority of these enhancements, the defendant must have personally used or discharged a
firearm. Section 12022.53, subdivision (b) requires the imposition of a 10-year term
where the defendant “personally uses a firearm.” Section 12022.53, subdivision (c)
requires the imposition of a 20-year term where the defendant “personally and
intentionally discharges a firearm.” Section 12022.53, subdivision (d) requires the
imposition of a term of 25 years to life where the defendant “personally and intentionally

23 We reiterate that the court did not articulate how it reached its calculation of a
70-year minimum term on count 2. However, the probation officer’s report calculated
the 70-year minimum term as follows: “In the present matter, the base term selected is
the mid term of five years, plus 25 years, pursuant to the true finding of [section]
12022.53[, subdivisions] (d) & (e)(1), plus five years, pursuant to the true finding of
[section] 667[, subdivision] (a). This makes the minimum parole eligibility date of 35
years, which is then doubled due to the true finding of the [section] 667[, subdivision] (e).
The sentence will not be further enhanced as the enhancements, which were found true,
were used to create the minimum parole eligibility date.” It therefore appears the court
sentenced defendants pursuant to both the alternate penalty provision set forth in section
186.22, subdivision (b)(4) and the gang-related firearm enhancement set forth in section
12022.53, subdivisions (d) and (e)(1).

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discharges a firearm and proximately causes great bodily injury … or death.” Section
12022.53, subdivision (e)(1) extends liability for the firearm use of another to a principal
who did not personally use or discharge the weapon, but who violated subdivision (b) of
section 186.22.
“Section 12022.53, subdivision (e)(1) creates an exception to the personal use
requirement of section 12022.53, subdivisions (b) through (d) in a prosecution where
findings have been made pursuant to section 186.22 .… In a case where section 186.22
has been found to be applicable, in order for section 12022.53 to apply, it is necessary
only for a principal, not the accused, in the commission of the underlying felony to
personally use the firearm; personal firearm use by the accused is not required under
these specific circumstances. However, as a consequence of this expanded liability under
section 12022.53, subdivision (e), the Legislature has determined to preclude the
imposition of an additional enhancement under section 186.22 in a gang case unless the
accused personally used the firearm.” (People v. Salas (2001) 89 Cal.App.4th 1275,
1281–1282.)
In this regard, section 12022.53, subdivision (e)(2) provides:

“An enhancement for participation in a criminal street gang pursuant
to Chapter 11 (commencing with [s]ection 186.20) of Title 7 of Part 1 shall
not be imposed on a person in addition to an enhancement imposed
pursuant to this subdivision, unless the person personally used or personally
discharged a firearm in the commission of the offense.”
Our Supreme Court has interpreted section 12022.53, subdivision (e)(2) to apply
to both the enhancement and alternate penalty provisions set forth in section 186.22.
Accordingly, neither of these penalties can be imposed in combination with a section
12022.53, subdivision (e) enhancement unless the person personally used or discharged a
firearm in the commission of the offense. (People v. Brookfield (2009) 47 Cal.4th 583,
593, 595.) “In choosing which of those two provisions to apply, the trial court must,

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consistent with section 12022.53’s subdivision (j), choose the provision that will result in
a greater sentence.” (Id. at p. 596.)
2. Analysis
Neither party suggests King personally used or discharged a firearm in the
commission of count 2. Accordingly, we agree with the parties that, on remand, the court
may not impose both a gang enhancement and a gang firearm enhancement on count 2
with respect to King. Rather, the court must choose the enhancement provision that will
result in a greater sentence. (§ 12022.53, subds. (e)(2), (j).)
The parties disagree as to the availability of both enhancements in sentencing
Wandick. The People argue both enhancements may be imposed against Wandick
because “[t]he evidence shows, and the jury found, that Wandick personally fired the
firearm used in the offense.” (Fn. omitted.) More specifically, the People assert the
jury’s true finding on the drive-by murder special circumstance establishes “the jury
necessarily found Wandick fired the firearm used in the offense in count 2.” Wandick
concedes the jury instructions required the jury to find that he shot Williams in relation to
count 1. However, he argues the jury’s finding on count 1 does not establish he
personally used or discharged a firearm in the commission of count 2.24
The People’s argument has a modicum of facial appeal. The jury was instructed
that, to find the special circumstance true, the People were required to prove that
Wandick “shot a firearm from a motor vehicle[,] killing Daniell Williams,” and
“intentionally shot at a person who was outside the vehicle.” Inasmuch as the instant
case involved a single shooting with a single shooter, these findings would appear
sufficient to establish that Wandick also personally used and discharged a firearm in

24 He also argues the jury’s verdict contains inconsistencies that suggest the jury
did not follow all the court’s instructions, and thus we cannot assume the jury found
Wandick was the shooter on count 1 as required by the instructions. In light of our
disposition, we need not reach this argument.

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relation to count 2, which involved willful discharge of a firearm at an occupied motor
vehicle.
Ultimately, however, the availability of increased punishment is a matter of
pleading and proof. (See § 12022.53, subd. (j) [“For the penalties in this section to apply,
the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact….”]; see also Apprendi v. New Jersey (2000) 530 U.S. 466, 490
[“Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”]; People v. Masbruch (1996) 13 Cal.4th 1001, 1007
[“Whether a defendant ‘used a firearm in the commission of’ an enumerated sex offense
is for the trier of fact to decide.”].) Here, the information did not allege that Wandick
personally used or discharged a firearm in committing any of the counts or
enhancements. With respect to count 2 specifically, the information alleged only that a
principal personally discharged and used a firearm. Moreover, the prosecution did not
request that the jury be instructed regarding personal firearm use or discharge in relation
to count 2 or the firearm enhancement, and the verdict did not call for a jury finding on
this point. There was therefore no finding that Wandick personally used or discharged a
firearm “in the commission of” count 2. (§ 12022.53, subd. (e)(2).) As a matter of law,
the special circumstance finding applies only to count 1 and does not provide a finding
sufficient to overcome the bar against dual use of the gang finding set forth in section
12022.53, subdivision (e)(2).
In sum, because the information did not allege defendants personally used a
firearm in the commission of count 2, and the jury did not find either defendant
personally used a firearm in the commission of count 2, the court on remand may apply
only the singular enhancement that will result in the greater sentence. (§ 12022.53,
subds. (e)(2), (j).)

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DISPOSITION
As to both defendants, the verdicts as to count 5 are ordered modified to reflect a
conviction of violating section 182.5 based on a target felony violation of section 26100,
subdivision (d). The sentences on counts 2 and 5 are vacated. The matter is remanded
for resentencing consistent with this opinion. In all other respects, the judgments are
affirmed.

DETJEN, J.
WE CONCUR:

HILL, P. J.

SANDHU, J.

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