Filed 8/10/26 P. v. Rhodes CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)

THE PEOPLE, C102607
Plaintiff and Respondent,
(Super. Ct. No. 19FE014513)
v.

JOE THOMAS RHODES,
Defendant and Appellant.

Defendant Joe Thomas Rhodes, an Oak Park Bloods gang member, was driving a
vehicle when his passenger, codefendant Nicholas Hayes-Kelly, also an Oak Park Bloods
member (who is not a party to this appeal), fired a semiautomatic firearm at rival gang
members in another car stopped at a traffic light. Two of the three occupants of the
targeted car were struck by gunfire. A jury found defendant guilty of discharging a
firearm at an occupied motor vehicle, attempted murder, and three counts of assault with
a semiautomatic firearm. The trial court sentenced defendant to seven years to life plus a
determinate term of nine years in state prison.
On appeal, defendant argues that (1) the trial court prejudicially abused its
discretion in admitting clips from two gang-related rap music videos over his Evidence
Code section 352.2 objection, and (2) the abstract of judgment must be corrected to

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reflect that, in orally pronouncing judgment, the trial court stayed execution of the
determinate term imposed on count three pursuant to Penal Code section 654.1
We will affirm the judgment and order the abstract corrected as specified below.

BACKGROUND
A second amended information charged defendant and Hayes-Kelly with
discharging a firearm at an occupied motor vehicle (§ 246; count one), attempted murder
(§§ 664, 187, subd. (a); count two), and assault with a semiautomatic firearm (§ 245,
subd. (b); counts three-five). The information alleged defendants inflicted great bodily
injury (see § 12022.7), and, as to each count, asserted criminal street gang enhancement
allegations (§ 186.22, subd. (b)(1)). Counts and allegations pertaining only to Hayes-
Kelly are not included here.

I

Trial Evidence

A. The August 10, 2019, Shooting
A.J.2 testified under subpoena. In August 2019, he was driving a car accompanied
by his cousin, K.K., and a female friend, S.G., when he was shot. S.G. was not hit by
gunfire. A.J. could not recall what happened because he was under the influence of
alcohol and drugs that day. Sacramento Sheriff’s Detective Alex Zakrzewski spoke with
A.J. at the hospital. In the interview, which was played at trial, A.J. told Detective
Zakrzewski he was a Starz gang member. At trial, A.J. denied being a Starz member.

1 Further undesignated section references are to the Penal Code.
2 To protect their privacy, we will refer to the victims and witnesses by their initials.
(Cal. Rules of Court, rule 8.90(b)(4), (10) & (11).)

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 K.K., who also was hit by gunfire, likewise testified under subpoena. K.K. did not
recall getting shot, and did not see who shot him. He had been in a car with A.J. and a
female at the time. K.K. testified he was not in a gang. T.P. testified that, on August 10,
2019, she was with her sister in a Prius in the left turn lane at 65th Street and Stockton
Boulevard in Sacramento when the passenger side of her vehicle was struck by gunfire.
B. Surveillance Video of Events Prior to and Including the Shooting
K.K. told Detective Steven Abelia that, just before the shooting, he had left a
liquor store at 47th Avenue and Stockton Boulevard. Deputy Brandon Feldman obtained
surveillance video from the Pints-N-Fifths liquor store, which was played at trial.
Detective Zakrzewski described what appeared on the video. A black Pontiac pulled in
and parked, defendant got out of the driver’s seat, retrieved a child from the backseat, and
walked out of the frame. Another individual exited the rear passenger side of the car and
looked around the parking lot. Detective Zakrzewski testified that this individual was
similar in stature and appearance to Hayes-Kelly, including his beard. Defendant
returned to the vehicle and got in. An arm could be seen extending out the front
passenger window of the Pontiac, indicating there was a third person in the car.
At some point, A.J. and K.K.’s vehicle pulled into the liquor store and parked; A.J.
exited the vehicle. The driver’s window of the Pontiac then closed. Later, A.J. got back
into the driver’s seat of his car and drove off, turning right out of the parking lot. The
Pontiac then did “somewhat of a U-turn in the parking lot” and left the parking lot from
the same exit as A.J.’s car.
Detective Zakrzewski also described what he observed on gas station and
Department of Transportation surveillance videos recorded at the intersection of Stockton
Boulevard and 65th Street. A.J. and K.K.’s white vehicle and T.P.’s Prius were stopped
at the intersection. The gas station surveillance video showed the Prius in a turn lane and
A.J.’s car on the right side of the Prius. The black Pontiac then pulled up on the
passenger side of A.J.’s vehicle. The video showed an object emerging from the

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Pontiac’s driver’s-side rear window, and then smoke consistent with muzzle smoke
coming from that window. This occurred at 12:57 p.m.
C. Cell Phone Location Evidence
Daniel Garbutt testified as an expert in call detail records, geolocation analysis,
and forensic cell phone analysis. He testified that call detail records indicated that cell
phones associated with defendant and Hayes-Kelly were connected to a cell tower near
the Pints-N-Fifths liquor store at some time between 12:41 and 12:46 p.m. on August 10,
2019.
D. Defendant’s Acquaintances and the Pontiac
K.H., testifying under subpoena, shared a son with defendant. On August 10,
2019, defendant delivered their son to her at the Pints-N-Fifths liquor store. Before the
exchange, defendant told K.H. on the cell phone that he was with Nick and Drai.
On August 11, 2019, Sergeant Kenny Shelton went to an address associated with
defendant where he observed the Pontiac. J.W., who shared children with defendant, told
Sergeant Shelton she owned the Pontiac, but acknowledged that defendant sometimes
drove it.
E. Yuba County and Recovery of the Firearm
S.D., who testified under subpoena, had children with Hayes-Kelly. The
prosecution played a 911 call placed by her brother, E.H. on August 18, 2019, received in
Yuba County. In the call, E.H. reported that S.D. and Hayes-Kelly were fighting, and
that Hayes-Kelly had a black nine-millimeter gun pointed at S.D.
Detective Tyler Johannes of the Yuba County Sheriff’s Department responded to
the 911 call. When he arrived, a group of five or six people approached his location.
One, B.H., was carrying a backpack. Detective Johannes searched the backpack and
found a Springfield nine-millimeter firearm. Deputy Jeff Murphy asked S.D. about the
firearm, and she told Detective Murphy the gun was Hayes-Kelly’s.

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 F. Forensic Firearms Analysis
After the shooting, Deputy Feldman found 10 spent nine-millimeter cartridge
casings and a fired bullet in the intersection. Detective Zakrzewski obtained the firearm
recovered in Yuba County and submitted it for analysis. Jeremy Zerbe, a criminalist,
testified as an expert in forensic firearm analysis. Zerbe analyzed the Springfield nine-
millimeter firearm and the 10 cartridge casings. He determined that all 10 cartridge
casings had sufficient agreement of individual features for him to conclude that they were
all fired by the same firearm. Zerbe test-fired the Springfield and compared the cartridge
casings from the test fires with one of the cartridge casings recovered in this case. He
concluded that the cartridge casing recovered in this case was fired from the same firearm
as the three test fires and, because he had already concluded that all 10 recovered
cartridge casings were fired from the same firearm, he further concluded that all 10
cartridge casings were fired by the Springfield.
G. Gang Evidence
Detective Terrence McDonald testified as an expert in criminal street gangs. He
testified that defendant and Hayes-Kelly were both Oak Park Bloods gang members.
They both had gang-related tattoos. Defendant had a “P” tattoo representing Oak Park.
Both had been observed in the presence of other gang members. Both posted photos to
social media in which they were with other Oak Park Bloods members and were throwing
up gang signs related to the Oak Park Bloods.
Detective McDonald testified that the primary rivals of the Oak Park Bloods were
the Stickup Starz. The two gangs engaged in shootings and fights with each other. They
also made videos disrespecting each other. In August 2019, matters between the two
gangs were bad. Detective McDonald described one social media interaction in which
K.H., who shared a son with defendant, posted about a particular individual, and then
asked defendant why he had an issue with her post. Defendant’s account responded,
“That’s a mutha fuckin’ Star. Fuck you mean?” According to Detective McDonald, it

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was clear defendant was upset that K.H. posted about a Starz member “because she
should know that that’s his rival because he’s from Oak Park.”
Detective McDonald testified that A.J. and K.K. were members of Stickup Starz in
August 2019. He also testified that he had seen gang rap videos posted to YouTube in
which A.J. and K.K. appeared. The prosecution played portions of a recorded telephone
conversation between the prosecutor and A.J. In the call, A.J. indicated he did not want
to testify, stating that he was “a gang member from one side and they’re gang members
from the other side.” A.J. told the prosecutor he was not an average citizen, but rather
was a “fuckin’ high-rankin’ gang member….”
Regarding the surveillance video from the Pints-N-Fifths liquor store, Detective
McDonald testified that, if the occupants of the Pontiac were Oak Park Bloods members,
they would have had a motive to kill A.J. because he was a known Starz member and he
could be seen in videos disrespecting Oak Park Bloods members. He also testified that,
when A.J. got out of his car in the liquor store parking lot, defendant deliberately closed
the driver’s window of the Pontiac to avoid being seen because “he recognized the person
that was there, and he didn’t want them to see him” because “it can lead to a shootout, a
fight or an altercation.”

II

Verdict and Sentencing
The jury found defendant guilty of all counts charged against him. The jury found
true allegations in counts one, two, three, and five, that the crimes involved great bodily
injury, and the allegation in count two that defendant aided and abetted attempted murder
willfully, deliberately, and with premeditation. Following a bifurcated trial, the jury
found not true all gang enhancement allegations asserted against defendant (and therefore
we have not summarized that evidence here), but found true three sentencing
circumstances in aggravation. (Cal. Rules of Court, rule 4.421(b)(2), (4), (5).)

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 The trial court sentenced defendant to an indeterminate term of seven years to life
on count two, determinate upper terms of nine years on counts three, four, and five, and a
determinate upper term of seven years on count one. The court ordered counts one, three,
and five to run concurrently with count four, and stated that the sentence imposed on
count three was stayed pursuant to section 654.

DISCUSSION

I

Evidence Code Section 352.2 and the Admission of Two Gang Rap Videos

A. Additional Background and Defendant’s Contentions
Over defendant’s objections in motions in limine, the trial court granted the
prosecutor’s request to admit two YouTube videos at trial, one entitled “Ima S.T.A.R.,”
and the other entitled “Tha Truth.” A.J. and K.K. appeared in the “Ima S.T.A.R.” video,
displaying Stickup Starz gang signs and demonstrating their connection to that gang. The
prosecution stated that this video demonstrated that both victims would be targeted by the
rival Oak Park Bloods because of “their overt representation of their gang and disrespect
of the Oak Park Bloods.” “Tha Truth” was a video by an influential Oak Park Bloods
member, in which he disparaged Stickup Starz members, including A.J. specifically.
According to the prosecutor, that an influential member of the Oak Park Bloods would
“call[] out” A.J. in his video demonstrated that A.J. was a target for Oak Park Bloods
gang members. Neither video featured defendant or codefendant Hayes-Kelly.
Additionally, “Tha Truth” predated the shooting here by perhaps 10 years, and “Ima
S.T.A.R.” was made approximately seven years before the shooting. The trial court
allowed the prosecutor to play 45 seconds of “Ima S.T.A.R.” and one minute 10 seconds
of “Tha Truth” at trial.

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 Defendant argues that the videos were inadmissible under Evidence Code section
352.2, and that their admission constituted reversible error. Even assuming for
argument’s sake that the trial court erred in admitting the videos, we conclude that any
error did not prejudice defendant.
B. Standard of Review
Where no due process violation has occurred—defendant does not claim his trial
was fundamentally unfair or that a due process violation occurred here—we assess
prejudice resulting from the improper admission of evidence following an exercise of
discretion under the standard in People v. Watson (1956) 46 Cal.2d 818. (See People v.
Coneal (2019) 41 Cal.App.5th 951, 972; see also People v. Marks (2003) 31 Cal.4th 197,
226-227 [application of ordinary rules of evidence like Evidence Code § 352 does not
implicate the federal Constitution and review is under Watson].) Under Watson, “ ‘a
defendant must show it is reasonably probable a more favorable result would have been
obtained absent the error.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955; Watson, at
p. 836.)
C. Prejudice
A core component of defendant’s argument addressed to prejudice is that “he was
unaware of [Hayes-Kelly’s] intent until the shooting started.” However, defendant’s
position is severely undermined by the trial evidence.
Detective McDonald testified at the trial on the substantive counts that defendant
and Hayes-Kelly were both Oak Park Bloods gang members. Defendant and Hayes-
Kelly both had gang-related tattoos. Defendant had a “P” tattoo representing Oak Park.
Both had been observed in the presence of gang members. Both posted photos to social
media in which they were with other Oak Park Bloods members and in which they were
throwing up gang signs associated with the Oak Park Bloods.
Detective McDonald testified that the primary rivals of the Oak Park Bloods were
the Stickup Starz. The two gangs engaged in shootings and fights with each other. In

8
August 2019, matters between the two gangs were bad. Defendant chastised K.H. for a
social media post involving a Starz member, stating, “That’s a mutha fuckin’ Star. Fuck
you mean,” indicating, according to Detective McDonald, that he was upset K.H. posted
about a Starz member “because she should know that that’s his rival because he’s from
Oak Park.”
Although both denied it at trial, Detective McDonald testified that both A.J. and
K.K. were well-known and respected members of Stickup Starz in August 2019. A.J.
told Detective Zakrzewski that he was a known Starz gang member. In a phone call with
the prosecutor, A.J. said he was “a gang member from one side and they’re gang
members from the other side.”
On August 10, 2019, the black Pontiac driven by defendant could be seen in
surveillance video pulling into the Pints-N-Fifths liquor store on Stockton Boulevard.
Around this time, between 12:40 and 12:46 p.m., call detail records indicated that cell
phones associated with defendant and Hayes-Kelly were in the area of the Pints-N-Fifths
liquor store. After the Pontiac parked, defendant got out of the driver’s seat, retrieved a
child from the backseat, and walked out of the frame. K.H. testified that, that day,
defendant delivered their son to her at the Pints-N-Fifths liquor store. Before defendant’s
arrival at that location, he had told K.H. that he was with “Nick” and “Drai.” Hayes-
Kelly’s first name is Nicholas, and the surveillance video established that there was a
third person in the Pontiac. Additionally, an individual who looked like Hayes-Kelly got
out of the Pontiac and looked around. Thus, the evidence was strong that defendant and
Hayes-Kelly were in the black Pontiac at the Pints-N-Fifths liquor store minutes before
the shooting. In fact, defendant expressly states on appeal that he does not raise any issue
with respect to identity.
A.J. and K.K.’s vehicle then pulled into Pints-N-Fifths. After A.J. exited his
vehicle, the Pontiac’s driver’s window closed. Detective McDonald testified that
defendant, recognizing A.J., deliberately closed the window to avoid being seen by A.J.

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which could “lead to a shootout, a fight or an altercation.” Later, A.J. drove off, turning
right out of the parking lot. Defendant, driving the black Pontiac, did “somewhat of a U-
turn” and followed A.J.’s car out of the parking lot, suggesting he deliberately followed
A.J.’s car.
Shortly thereafter, the black Pontiac driven by defendant could be seen pulling up
next to A.J.’s vehicle at 65th Street and Stockton Boulevard. An object extended out of
the driver’s side rear window, and then muzzle smoke appeared. A.J. and K.K. both were
shot. Detective McDonald testified that if the occupants of the black Pontiac were Oak
Park Bloods members, they would have had a motive to kill A.J., a known Starz member
who could be seen in videos disrespecting Oak Park Bloods.
Law enforcement found 10 nine-millimeter cartridge casings in the intersection
where the shooting occurred. Criminalist Zerbe concluded that those cartridge casings
were all fired by Hayes-Kelly’s Springfield nine-millimeter firearm.
The foregoing constitutes strong evidence that defendant and Hayes-Kelly
identified and deliberately followed, targeted, and fired on A.J. and his associates. This
evidence belies defendant’s claim that he was oblivious to Hayes-Kelly’s intentions until
the shooting started.
Against this background, the video evidence was brief, totaling less than two
minutes. The videos were cumulative of other evidence, and thus the facts proved by the
videos were proved by other, less prejudicial evidence.
In addition, the trial court instructed the jurors that they “may consider evidence of
gang activity only for the limited purpose of determining whether: [¶] One: The
defendants had a motive to commit the crimes charged. [¶] Or two: The defendants
intended to kill [A.J.]. [¶] You may not consider this evidence for any other purpose.
You may not conclude from this evidence that the defendants are persons of bad
character or that they have a disposition to commit crime.” (CALCRIM No. 1403.) To
the extent the videos could have “inject[ed] racial bias into the proceedings” (Evid. Code,

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§ 352.2, subd. (a)(2)), and contained misogynistic and homophobic content, the trial court
also instructed the jurors that they were not to “let bias, sympathy, prejudice or public
opinion influence” their decision, and that “bias” included bias based on gender, race,
ethnicity, and sexual orientation. (CALCRIM No. 200.) “The jury is presumed to have
followed the trial court’s instructions in the absence of any indication it was unwilling or
unable to do so.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 196.)
We conclude that it is not reasonably probable that the defendant would have
obtained a more favorable result absent any error in admitting the two videos.

II

Abstract of Judgment
Defendant argues that the abstract of judgment must be corrected to reflect that, in
orally pronouncing sentence, the trial court stayed execution of the sentence imposed on
count three pursuant to section 654. We agree.
Section 654 provides, in pertinent part: “An act or omission that is punishable in
different ways by different provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) In orally pronouncing judgment, the trial court ordered
execution of the sentence imposed on count three stayed under section 654. The abstract
of judgment, however, does not reflect this pronouncement. “The oral pronouncement of
judgment controls over any discrepancy with the minutes or the abstract of judgment.”
(People v. Sharret (2011) 191 Cal.App.4th 859, 864.)
The People argue that section 654 does not forbid multiple punishments for violent
crimes involving multiple victims, and the trial court could not stay the sentence imposed
on count three under section 654. “There is a multiple victim exception to … section 654
which allows separate punishment for each crime of violence against a different victim,

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even though all crimes are part of an indivisible course of conduct with a single principal
objective.” (People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631.)
Here, the probation report recommended that a nine-year determinate term be
imposed on count three and execution of that sentence be stayed under section 654 as it
was “an alternative statement to Count 2.” At sentencing, the prosecutor recommended
that the sentence imposed on count three be stayed pursuant to section 654 as “an
alternate to Count 1….” The People did not raise in the trial court their argument that the
court could not stay execution of the sentence on count three based on the multiple victim
exception.
In any event, whether section 654 applies is a factual question, and we review the
trial court’s decision for substantial evidence. (People v. Jones (2002) 103 Cal.App.4th
1139, 1143.) “In analyzing whether section 654 bars the imposition of multiple
sentences, we consider the evidence in the light most favorable to the judgment and
affirm the trial court’s sentencing decision—whether express or implied—if it is
supported by substantial evidence. [Citations.] Under this standard, this court must view
the evidence in the light most favorable to the trial court’s finding and presume the
existence of every fact the trial court could reasonably deduce from the record.”
(People v. Vasquez (2020) 44 Cal.App.5th 732, 737.)
Defendant was charged in count two with the attempted murder of A.J., and the
jury found defendant guilty of the attempted murder of A.J. on count two. Defendant was
charged in count three with assault with a semiautomatic firearm on A.J., and the jury
found defendant guilty of assault with a semiautomatic firearm on A.J. on count three.
The sentence on count three, assault with a semiautomatic firearm on A.J., was properly
stayed pursuant to section 654 because count three arose from the same course of conduct
and was motivated by the same single criminal objective as the attempted murder of A.J.,
for which he was convicted and sentenced in count two. (See People v. Felix, supra,
172 Cal.App.4th at p. 1631 [ordering abstract corrected to reflect that execution of

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sentence for assault with a firearm on a specified victim was stayed pursuant to § 654
where the defendant was also sentenced for attempted murder of the same victim].)
Defendant was also found guilty by the jury and sentenced on separate counts of
assault with a semiautomatic firearm on S.G. (count four), and K.K. (count five). Neither
S.G. nor K.K. could properly be a “multiple” victim on count three, as defendant was
separately punished for assault with a semiautomatic firearm as to each of them.
The People look beyond the three victims in A.J.’s car, emphasizing that T.P. and
her sister were in a Prius next to A.J.’s vehicle, and claim that any “of these five people
could have easily been injured.” Because the trial court stayed execution of the sentence
imposed on count three, we presume that the court implicitly found the multiple victim
exception to section 654 inapplicable. (See generally People v. Ramirez (2021)
10 Cal.5th 983, 1042 [“Absent evidence to the contrary, we presume that the trial court
knew the law and followed it”].) Although the passenger side of the Prius was struck by
gunfire, T.P. and her sister were not. Viewing the evidence in the light most favorable to
the trial court’s findings and presuming the existence of every fact the trial court could
reasonably deduce from the record, we conclude that the court properly could have found
that T.P. and her sister, who were neither identified as victims in the information nor
injured in the shooting, were not victims of defendant’s assault with a semiautomatic
firearm charged in count three. The court’s implicit finding is supported by substantial
evidence. We will order the abstract corrected to reflect that the execution of the
sentence imposed on count three is stayed.
The People also argue that the abstract must be corrected to designate count four,
rather than count three, as the principal determinate term. We agree. The trial court
imposed count four as the principal determinate term, as it ordered the other determinate
terms to run concurrently. However, the abstract indicates count three is the principal
term. We will order the abstract corrected to reflect that count four is the principal
determinate term.

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 DISPOSITION
The judgment is affirmed. The trial court is directed to prepare an amended
abstract of judgment reflecting that (1) execution of the nine-year determinate term
imposed on count three is stayed pursuant to section 654, and (2) count four is the
principal determinate term, and to forward a certified copy of the amended abstract of
judgment to the Department of Corrections and Rehabilitation.

\s\
KRAUSE, J.

We concur:

\s\
EARL, P. J.

\s\
HULL, J.

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