The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL ALLAN LAMB,
Defendant and Appellant.
S166168
Orange County Superior Court
03CF0441
July 11, 2024
Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Jenkins concurred.
PEOPLE v. LAMB
S166168
Opinion of the Court by Evans, J.
A jury convicted defendant Michael Allan Lamb of the first
degree murder of Scott Miller (Pen. Code, § 187, subd. (a))1 and
the willful, deliberate, and premeditated attempted murder of
Sergeant Michael Helmick, a peace officer (§§ 664, 187,
subd. (a)). The jury also found Lamb guilty of conspiracy to
commit murder (§§ 182, subd. (a)(1), 187, subd. (a)), unlawfully
carrying a loaded firearm in public by an active participant in a
criminal street gang (former § 12031, subd. (a)(1), (2)(C)), and
two counts each of possession of a firearm by a felon (former
§ 12021, subd. (a)(1)) and street terrorism (§ 186.22, subd. (a)).
The jury found true a gang-murder special-circumstance
allegation. (§ 190.2, subd. (a)(22).) As to all counts except the
street terrorism charges, it also found true the allegation that
the offenses were committed for the benefit of, at the direction
of, or in association with a criminal street gang with the intent
to promote, further, or assist in the criminal conduct of the gang
members. (§ 186.22, subd. (b)(1)(A).) As to the murder and
conspiracy to commit murder counts, the jury found true
allegations that Lamb intentionally and personally discharged
1
All undesignated statutory references are to the Penal
Code.
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Opinion of the Court by Evans, J.
a firearm in the commission of the offenses causing death.
(§ 12022.53, subd. (d).)2
The jury failed to reach a penalty verdict. At the penalty
phase retrial, a different jury fixed the penalty at death. The
court entered a judgment of death.
This appeal is automatic. (§ 1239, subd. (b).) Based on
recent amendments to section 186.22 from the enactment of
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No.
333), we reverse Lamb’s convictions for street terrorism and
unlawfully carrying a loaded firearm in public by an active
participant in a criminal street gang. For the same reason, we
reverse the true findings on the gang enhancements and gang-
murder special circumstance. We vacate Lamb’s death
judgment and remand the case to the trial court for any retrial
of the reversed convictions, enhancements, and special
circumstance. In all other respects, we affirm.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution Evidence
On the evening of March 8, 2002, Scott “Scottish” Miller,
a founding member of white supremacist gang Public Enemy
Number One (PEN1), also known as PEN1 Death Squad, was
2
Lamb was tried with Jacob Rump against whom the
prosecutor did not seek the death penalty. Rump also was
convicted of Miller’s murder and conspiracy to commit murder,
and the jury found true the gang-murder special-circumstance
allegation. He was sentenced to life imprisonment without the
possibility of parole. Coperpetrator Billy Joe Johnson was tried
separately and convicted of Miller’s murder and the jury
returned a verdict of death. His judgment was affirmed on
appeal. (People v. Johnson (2016) 62 Cal.4th 600, 607.)
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found dead in an alley with a single gunshot wound to the back
of his head. Three days later on March 11, fellow PEN1
members Lamb and Jacob Rump were arrested after a pursuit
during which Lamb fired a shot at Sergeant Helmick using the
same gun that had killed Miller. The prosecutor’s theory was
that, acting upon an order to kill Miller in retaliation for having
participated in a news program about the gang, fellow PEN1
member Billy Joe Johnson drove Miller to the alley where Lamb,
backed up by Rump, shot Miller.
a. Murder of Scott Miller
Christina Harris testified that she lived in a two-story
apartment on West Gramercy Avenue in Anaheim. Lamb and
Rump, as well as PEN1 associate Tanya Hinson, would
occasionally stay at Harris’s apartment. On March 8, Lamb
called the apartment to speak to Hinson and said he had
something very important to talk about. Harris conveyed this
message to Hinson. Later that night, Harris saw Lamb, Rump,
and Hinson in her living room. She asked them to leave, and
they complied.
Two to three minutes later, between 10:30 p.m. and 11:00
p.m., Harris heard a single gunshot. Between three and 10
minutes after the gunshot, Harris looked out her bedroom
window and saw a blue car driving through the alley with what
appeared to be three “Mexican” men with shaved heads. About
10 minutes later, Harris and a friend went outside and saw a
body lying on the ground, who was later identified as Miller.
Residents in the area of West Gramercy Avenue testified
that at approximately 11:30 p.m. that evening, they heard a loud
bang or gunshot coming from a nearby alleyway. Approximately
20 seconds later, a neighbor heard screeching tires coming from
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the alley. Anaheim police arrived on the scene just before
midnight and discovered Miller with a gunshot wound to the
back of the head lying facedown in the alley next to a dumpster.
A shell casing was found nearby. A black baseball hat and a
Pepsi can were underneath Miller’s body. The pathologist
testified that Miller died from a single gunshot wound to the
back of the head and that he had no defensive wounds. He
would have been immediately rendered unconscious and most
likely died several minutes after being shot.
b. Attempted murder of Sergeant Michael
Helmick
Anaheim Police Sergeant Michael Helmick testified that
on the afternoon of March 11, he was working undercover and
therefore was not in uniform. While driving an unmarked white
Buick Century, he was dispatched to investigate a possible
stolen vehicle, a 2002 Ford Taurus, parked in an alley near a
home where Lamb and Rump had recently been staying.
Sergeant Helmick arrived at the alley and an Anaheim Police
Department helicopter provided assistance, flying a wide orbit
about 1,800 feet above the ground to avoid detection. Looking
over an adjacent wall, Sergeant Helmick confirmed that the
Taurus had been reported stolen, and then took up a position at
the south end of the alley and contacted Anaheim Police
Detective Danny Allen for assistance.
Sergeant Helmick was advised that the Taurus, which
was driven by Rump, had begun to move, and Sergeant Helmick
followed the Taurus in his vehicle when it exited the alley.
Marked police cars were also asked to respond and the
helicopter began to descend. After driving a short distance, the
Taurus stopped in the middle of the roadway and Sergeant
Helmick brought his vehicle to a stop about five car lengths
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behind; there were no other vehicles between Sergeant Helmick
and Rump, and Sergeant Helmick could see Rump continuously
staring at him through the left side-view mirror. A man later
identified as Lamb with a shaved head and carrying a black
jacket ran toward and entered the Taurus. Rump continued
looking at Sergeant Helmick through the mirror and the Taurus
then made an abrupt U-turn and a pursuit commenced.
After a short pursuit joined by Detective Allen driving an
unmarked Monte Carlo, Lamb and Rump exited the Taurus and
ran into an apartment complex. The helicopter had descended
to between 400 and 600 feet above the ground, and Sergeant
Helmick and Detective Allen pursued Lamb and Rump on foot.
At that altitude, the helicopter was extremely loud to a person
on the ground. Though they were both in plain clothes, Sergeant
Helmick had a badge on his belt and Detective Allen was
wearing a raid jacket marked with “Police” on the front and
back. Both officers were holding their radios and had their guns
drawn. Lamb and Rump went to a second story balcony of the
apartment complex. As the officers approached, they heard a
gunshot directly above them. The helicopter pilot observed
Lamb lift himself over the railing and point a stainless steel
handgun at Sergeant Helmick; the pilot saw a muzzle flash from
the gun. A witness thought he heard someone yell “police”
before hearing a gunshot. Though when asked on cross-
examination whether he was sure he heard the announcement
before the gunshot, the witness responded, “Well, um, I don’t
know.” Lamb and Rump ultimately were taken into custody.
c. Investigation
Forensic specialists testified that after Lamb’s arrest,
gunshot residue was found on his right dominant hand. This
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indicated that he had either fired a gun, was in close proximity
to a fired gun, handled a discharged gun, or had touched a
surface that was near a gun when it was fired. A glove found in
the Taurus also had gunshot residue.
A forensic supervisor testified that the single-action
semiautomatic handgun recovered from the March 11 crime
scene was jammed. The safety was off, the hammer was cocked
in the firing position, and the magazine was loaded with 10
rounds of live ammunition; however, a spent cartridge had not
ejected from the chamber. A forensic firearm examiner testified
that a bandana tied around the grip may have impeded the
movement of the slide, and that this gun had also fired the
expended casing found near Miller’s body.
PEN1 member Darrell Mason testified that he was in
custody in the Orange County jail with Lamb in June 2002.
Lamb claimed to have killed Miller and said “he had stripes
coming for that,” which Mason understood to mean that Lamb
expected “some status coming to him.” Lamb told Mason he had
shot Miller in the back of the head. Lamb seemed to be “looking
for a little bit like a pat on the back or something.” Before Miller
was killed, Lamb did not have a high status within PEN1.
Mason knew Miller had spoken about PEN1 to Fox 11 News and
that as a result, there was an understanding within the gang
that something was “supposed to happen” to Miller. Miller was
“in the hat”3 for bringing new members into the gang at a time
3
Mason explained that if a person is “in the hat” or has a
“green light” on them, that means “that you are no longer
considered to be in good graces with active members or people
that are in general population. You have a hit on you.”
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when a PEN1 founder, Donald Mazza, wanted PEN1 to go under
the radar.
d. Expert testimony regarding white supremacist
gangs
Lieutenant Clay Epperson of the Costa Mesa Police
Department testified concerning his investigations of PEN1 and
provided expert testimony on white supremacist gangs.
Lieutenant Epperson opined Lamb and Rump were active PEN1
members in March 2002. In early 2002, Lieutenant Epperson
heard a recurring rumor that Miller would be killed for his
participation in broadcast interviews with a local Fox television
station. It was initially rumored that PEN1 members John
Gross or Jesse Wyman had been designated to carry out the hit.
Before his death, Miller was disliked within PEN1 and
perceived as out of control, although he still had standing in the
gang.
Lieutenant Epperson testified that a white supremacist
gang member earned respect through the use of violence for the
benefit of the gang. Bragging about committing a violent crime
was expected. One member was expected to back up another in
committing violent crimes.
In white supremacist gang culture there was “payback,”
including violent sanctions, for any perceived wrong. A lengthy
period could elapse between an act of disrespect and the
payback; Lieutenant Epperson had investigated cases where
payback happened years after a “disrespectful” act. Disclosing
information about the gang to outsiders or to law enforcement
was seen as treasonous.
Miller had been a founding member of PEN1, along with
Mazza, Brody Davis, Devlin Stringfellow, and Dominic Rizzo.
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The PEN1 internal discipline process was arbitrary and ad hoc.
PEN1 leaders used egregious violence to intimidate and
dissuade other gang members, associates, and the general
public from speaking with police or testifying in court.
e. Fox 11 News videos
In 1999, Miller participated in a taped interview with Fox
11 News about PEN1. On February 20 and 21, 2001, Fox aired
two videos (the Fox videos or videos) styled as an exposé of the
gang and featuring Miller’s interview. Although Miller’s
appearance and voice were disguised, it was stipulated that the
person in question featured in the video was Miller. Moreover,
Johnson testified that he immediately knew it was Miller based
upon his tattoos, Miller’s pit bull featured in the videos, and
“things that were around him, range of movement, everything.”
Johnson further testified that when the videos aired, he was not
the only person to immediately recognize Miller: “Not only me,
everybody did. Everybody called everybody. Everybody was
like, ‘what the hell’s up with that?’ ”
The videos discussed the origins of PEN1 and its place in
the skinhead movement, its efforts to recruit new members, an
alliance Mazza, Rizzo, and Stringfellow made with the Aryan
Brotherhood and Nazi Lowriders, and detailed some of the
violent acts committed by its members. It also displayed images
of white supremacist symbols and tattoos, guns, and drugs.
Miller’s interview was interspersed throughout the videos, with
Miller describing PEN1’s activities, including its history of
violence, weapon use, and drug use and sales.
2. Defense Evidence
Lamb’s defense was that Johnson, assisted by Wyman and
Shirley Williams, had killed Miller.
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Testifying on behalf of Lamb, Johnson claimed sole
responsibility for the murder. Sometime on March 8, Miller,
Johnson, and Andrea Metzger attended a party. Johnson had
known Miller for about 20 years, but their relationship had been
strained for some time because of the Fox videos and other
personal issues. The party was the first time Johnson had seen
Miller since the videos aired. Metzger saw Johnson and Miller
talking at the party and heard Miller joking that he had to keep
his guard up.
Williams, who knew Miller, arrived at the party at
approximately 10:00 p.m. but left shortly thereafter. When she
returned around 11:00 p.m., Miller was no longer at the party,
but Johnson was. Johnson testified that at some point in the
evening, between 8:00 and 10:00 p.m., he and Miller left the
party in Johnson’s truck to buy drugs. At one point Miller asked
Johnson to pull into a strip mall, where Miller made a phone
call. Miller’s friend Marnie Simmons received a voicemail from
Miller at 10:23 p.m. that night telling her he was at the party
but was going to some address and was scared. A voice that
sounded like Johnson’s was heard in the background telling
Miller to get off the phone and to “tell her, see ya.”
Johnson testified that after Miller got back in the truck,
they drove to an alley and parked. As they were walking,
Johnson testified that he was “pretty perturbed with the guy,
really had it with him,” so he reached in his waistband, grabbed
his gun, “and blasted him.” Johnson then went back to the
party.
Johnson further testified that the night after killing Miller
he happened to see Lamb. Johnson had not seen Lamb since
meeting him about a year earlier. Lamb told Johnson that he
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had been shot at the previous night and that he needed a
weapon, so Johnson gave Lamb the murder weapon explaining
it was “hot.”
Johnson told mutual friend Gordon Bridges that they had
found Miller shot in the back of the head in an alley in Anaheim.
Bridges testified that on some later date, Williams told him that
Johnson forced her to drive Johnson and Miller to Anaheim with
Wyman in the back of the truck. A couple of weeks after the
murder, Johnson told Bridges to watch his mouth and to “back
off” Wyman. Bridges asked Johnson to “look me in the eye and
tell me you didn’t kill Scottish,” a nickname for Miller, and
Johnson told Bridges to mind his business and that it was
“politics.” Bridges told investigators that Johnson said Miller
was shot in the back of the head three times.
In 2004, while Rump was awaiting trial for Miller’s
murder, Johnson and Rump were cellmates at the Orange
County jail and got along very well. Around that time, Johnson
contacted Rump’s defense investigator and informed him that
Lamb and Rump were not guilty and that the gun had “came
from” Johnson. On June 30, 2006, Johnson pled guilty to an
unrelated second degree murder charge and other crimes and
was sentenced to 45 years to life. On July 5, 2006, Johnson
reached out to Lamb’s defense investigator and confessed to
killing Miller in 2002.
Dr. David Smith, an addiction medicine specialist,
reviewed videotaped interviews of Lamb and Rump conducted
on March 11 as well as a transcript of an interview with Harris
conducted on March 9 and a videotaped interview with her
conducted on March 18. Dr. Smith testified that
methamphetamine can affect the user’s ability to perceive time
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and it appeared Harris was having trouble with regard to time
references in her March 9 interview. As to Harris’s taped
interview, Dr. Smith opined that while Harris was not psychotic,
she was “hyper” and clearly under the influence of
amphetamine. In Dr. Smith’s view, Rump was also under the
influence of methamphetamine during his interview and was
“crashing,” or falling asleep, and was at the “rage, beginning of
psychosis” stage of methamphetamine impairment. Lamb was
less impaired and “was in the agitation, kind of anger/rage
period.” On an impairment scale of one to 10, with 10 being the
most impaired, Dr. Smith would place Lamb at six and Rump at
eight. Dr. Smith did not conduct a clinical analysis of Lamb,
Rump, or Harris and his opinion was entirely based upon
viewing the interview videos and reading the transcript.
Daniel Vasquez, a former correctional officer and state
prison warden, testified as a prison and gang expert. Vasquez
stated that a person “in the hat” would be “hit at the next and
earliest convenience or opportunity,” though the opportunity to
exact payback could take months to present itself. Vasquez also
testified that he would not expect a gang member to be carrying
a firearm known to have been used in a recent homicide.
Frances Valdovinos testified that she was at Harris’
apartment on the evening of March 8. When detectives later
presented her with a photographic lineup that included Lamb,
Valdovinos did not identify him as someone who had been at the
apartment that night.
3. Rebuttal Evidence
Defense investigator George Rowell testified Bridges told
him on June 4, 2007, that in the early morning hours after
Miller’s murder, Bridges said to Johnson, “Look me in the eyes
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Opinion of the Court by Evans, J.
and tell me you didn’t kill Scottish,” to which Johnson
responded, “You’ve been around. It’s politics. There is nothing
that could have been done about it.”
Defense investigator Gail Greco testified that she
interviewed Johnson in jail on July 5, 2006. Johnson told her:
“I was there. I did it. They had nothing to do with this murder.”
Johnson mentioned he had previously told Rump’s investigator
that he had supplied the murder weapon. Johnson told Greco
that he did not really know Lamb that well, but that he gave
Lamb the gun at the bar the night after the murder, stating, “I
ran into him at that bar, one convict to the other. I just
happened to have one, that was it. This should clear the books.”
Anaheim Police Officer David Heinzel arrived at the
Miller murder scene a few minutes after midnight and spoke
with neighbor Maria Baumgartner. Baumgartner stated that at
around 10:50 p.m., she heard two gunshots and saw two people
running in front of her residence.
The parties stipulated that Robin Freiwald told Anaheim
detectives that Lamb and Rump were at her residence on March
8 from 7:00 p.m. until she went to sleep, and that during that
time, they had all watched a movie together. Freiwald first
stated that she went to sleep between 9:30 p.m. and 10:00 p.m.;
she later said she went to sleep at 11:30 p.m. that night.
B. Penalty Phase Retrial
At the penalty phase retrial, the parties presented largely
the same evidence concerning the offenses that was presented
at the guilt phase trial in addition to other evidence in
aggravation and mitigation.
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1. Prosecution Evidence
The prosecution presented evidence of Lamb’s other
criminal activity involving violence or the threat to use violence.
In 1995, Lamb was arrested after threatening a beachgoer
at the San Clemente Pier. In 1996, Lamb and two other inmates
attacked another prison inmate, beating him with closed fists
resulting in an injury to the inmate’s right eye requiring seven
stitches. In 1999, Lamb stabbed an inmate with a metal shank
in a prison culinary hall, resulting in a four-inch wound to the
inmate’s neck and an inch-long wound to his mid-back.
In 2003, a seven-inch-long metal shank, another piece of
metal approximately three-and-a-half inches long, and two
plastic lighters were found in Lamb’s Orange County jail cell.
In 2005, deputies discovered a six-inch metal shank hidden in
Lamb’s jail cell. As the deputies who conducted the search were
leaving Lamb’s cell, Lamb said, “Shank you later.” In 2006, a
shank was discovered embedded in Lamb’s jail mattress.
The prosecution also presented evidence of Lamb’s
involvement in an alleged conspiracy to smuggle weapons and
instruments of escape into jail, and to escape from jail.
Lamb also had suffered a juvenile adjudication for
multiple vehicular burglaries, and adult felony convictions for
vehicular burglary, marijuana sale, and the unlawful taking of
a vehicle, as well as probation and parole violations.
The prosecution presented victim impact testimony from
Miller’s mother, Bonnie Miller, who testified about the impact
her son’s death had on her and Miller’s grandmother, older
brother, father, and his son who was born after his murder.
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2. Defense Evidence
Lamb’s parents, Cathy and Steven Lamb, his brothers,
Daniel and Mathew Lamb, and his maternal aunt, Claudia
Hayes, testified regarding his childhood.4 Steven served in the
Vietnam War and was dishonorably discharged for going AWOL
and committing assault. Steven and Cathy married upon his
return from the military and Lamb was born in 1973. Daniel
and Matthew were born six and nine years later.
Lamb’s father was verbally, mentally, and physically
abusive during Lamb’s childhood. Lamb was an exceptional
baseball player, but Steven would publicly berate Lamb when
he played. Lamb did not defend himself against Steven’s
physical abuse, which left welts on his body, but on one occasion,
Lamb protected Daniel from one of Steven’s beatings. Lamb’s
development was affected by his mother’s chronic and
debilitating alcoholism, which was recounted by numerous
friends, neighbors, and family members. As a result, Lamb
parented his younger siblings and shouldered household
responsibilities. Others described Lamb as a polite and
respectful neighbor, student, and friend.
Lamb also presented Vasquez to testify concerning prison
gangs and conditions.
4
For clarity and not out of disrespect, relatives sharing
Lamb’s surname will be referred by their first names.
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II. PRETRIAL ISSUES5
A. The Trial Court Did Not Err in Denying Lamb’s
Severance Motion
Before trial, Rump unsuccessfully moved to sever the
Miller murder count from the Sergeant Helmick attempted
murder count on the grounds that joinder would render the trial
grossly unfair and result in a denial of due process. These
counts had previously been consolidated without Lamb’s
objection. When Lamb later moved to sever the charges, the
court noted, “[t]he counts are both pretty inflammatory,” found
that there was a significant amount of cross-admissible
evidence, and ultimately denied the motion, commenting that
the fact that Lamb was being prosecuted for a capital crime
“does enter into it, but I don’t think anything the defense has
come up with has overcome the preference for consolidation.”
Lamb concedes the offenses were properly joined under
section 954 but now argues the trial court abused its discretion
when it denied his motion to sever. We disagree.
A defendant may be charged with and convicted of “two or
more different offenses of the same class of crimes or offenses,
under separate counts . . . .” (§ 954.) The capital murder and
attempted murder offenses are assaultive crimes against the
5
“[A]s to many claims defendant[] allege[s] for the first time
that the error complained of violated [his] federal constitutional
rights. To the extent that in doing so defendant[] ha[s] raised
only a new constitutional ‘gloss’ on claims preserved below, that
new aspect of the claims is not forfeited. However, ‘[n]o separate
constitutional discussion is required, or provided, when
rejection of a claim on the merits necessarily leads to rejection
of [the] constitutional theory . . . .’ ” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 364.)
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person and are therefore of the same class of crimes within the
meaning of section 954. (People v. Jones (2013) 57 Cal.4th 899,
924.) The statutory requirements for joinder having been met,
Lamb “ ‘ “can predicate error in denying the motion only on a
clear showing of potential prejudice.” ’ ” (Id. at p. 925.) We
review the denial of severance under a deferential abuse of
discretion standard. (People v. Zambrano (2007) 41 Cal.4th
1082, 1128.) “In reviewing such a ruling, we consider: ‘(1)
whether evidence of the crimes to be jointly tried is cross-
admissible; (2) whether some charges are unusually likely to
inflame the jury against the defendant; (3) whether a weak case
has been joined with a stronger case so that the spillover effect
of aggregate evidence might alter the outcome of some or all of
the charges; and (4) whether any charge carries the death
penalty or the joinder of charges converts the matter into a
capital case.’ ” (People v. Holmes, McClain and Newborn (2022)
12 Cal.5th 719, 746.)
“ ‘ “[T]he first step in assessing whether a combined trial
[would have been] prejudicial is to determine whether evidence
on each of the joined charges would have been admissible,
under Evidence Code section 1101, in separate trials on the
others.” ’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 948.) In the
trial court, Lamb conceded “that there is some cross-
admissibility issues with regard to the gun,” but disputed that
the attempted murder was probative of the homicide. In
response, the prosecutor proffered it would argue that Lamb
shot at Sergeant Helmick to evade being apprehended for the
murder he committed three days prior. On appeal, Lamb
maintains that the gun was the only common feature of the
offenses, arguing the manner of the commission of the offenses
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was radically different and insufficient to prove a common plan
or scheme, identity, or intent.
In People v. Merriman (2014) 60 Cal.4th 1, 38 (Merriman),
we held “[e]vidence that defendant, thinking he was being
arrested for murder, fled from police and resisted arrest by
engaging in a dramatic, hours-long standoff generally would be
admissible at a separate trial on the murder charge to show his
consciousness of guilt for killing [the victim]. Likewise, evidence
of the murder generally would be cross-admissible in a separate
trial on the resisting arrest charges to help explain the intensity
of his efforts to evade police.” (Id. at p. 44.) Similarly, in People
v. Cummings (1993) 4 Cal.4th 1233 (Cummings), we held that
the trial court did not abuse its discretion in denying a motion
to sever robbery counts from the murder of a peace officer
because the motive for the murder was to avoid arrest for the
robberies, which was circumstantial evidence of premeditation
and deliberation. (Id. at p. 1284.)
Lamb attempts to distinguish Merriman and Cummings
by arguing that in both cases, the defendants knew they were
being pursued by the police for a previous crime, whereas there
was no evidence Lamb knew his pursuers were law enforcement
officers. Lamb’s argument misses the mark. In Merriman, we
rejected the defendant’s contention that the evidence was not
cross-admissible because there were any number of reasons why
defendant would have fled the police other than a consciousness
of guilt for the murder. (Merriman, supra, 60 Cal.4th at p. 44.)
Here, too, such an argument “demonstrates only that the
evidence proffered by the prosecution regarding defendant’s
motive for evading police was disputed by the defense,” and
Lamb “points to no case, and we have located none, suggesting
that a finding of cross-admissibility is an abuse of discretion
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simply because the defense has challenged the inferences that
may be drawn from the proffered evidence.” (Ibid.) While Lamb
argued in closing the evidence demonstrated he and Rump did
not know they were being pursued by peace officers, there was
sufficient evidence demonstrating otherwise such that it cannot
be said the trial court erred in finding cross-admissible evidence.
Though not “a precondition to joinder of charges” (People
v. O’Malley (2016) 62 Cal.4th 944, 968), cross-admissibility “ ‘is
normally sufficient to dispel any suggestion of prejudice and to
justify a trial court’s refusal to sever properly joined charges.’ ”
(Merriman, supra, 60 Cal.4th at p. 38.) An examination of the
remaining factors only further reinforces the propriety of the
trial court’s refusal to sever.
Neither the murder count nor the attempted murder count
was more inflammatory than the other. Lamb argues the
inflammatory nature of the attempted murder worked to his
disadvantage in the murder charge, claiming, “the specter of an
armed gang member shooting at an officer of the law is perhaps
considered more nefarious than any act other than a crime
against a child.” We disagree. Shooting an individual in the
back of the head is also inflammatory conduct. Both the murder
and the attempted murder involved a single gunshot at a single
victim, with one killing the victim, and the other missing the
victim. While Sergeant Helmick may have been a more
sympathetic victim than Miller, Helmick was unscathed in the
attack. Under these circumstances, we cannot say that the
attempted murder charge was “particularly likely to inflame the
jury against” Lamb. (People v. Thomas (2012) 53 Cal.4th 771,
799; see also People v. Capistrano (2014) 59 Cal.4th 830, 850–
851.)
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Opinion of the Court by Evans, J.
Nor was the murder charge a weak case bolstered through
joinder such that the spillover effect altered the outcome. Lamb
contends the evidence of the attempted murder was much
stronger than the murder in that the former involved questions
of intent rather than identity, while the opposite was true for
the murder. Not so.
There was strong evidence of Lamb’s identity as Miller’s
killer. The gun Lamb used to shoot at Sergeant Helmick was
identified by a forensic firearm examiner as the gun used three
days before at the scene of Miller’s murder. Lamb boasted to
Mason that he had killed Miller. Other evidence included
Lamb’s need to speak with Hinson about something important
on the night of the murder, Lamb’s later presence at Harris’s
apartment located next to the murder site, and Lamb’s
departure from the apartment shortly before the murder. As to
the attempted murder, Lamb was identified as the gunman and
the surrounding circumstances, including Detective Allen’s
police jacket and the loud police helicopter hovering overhead,
demonstrated that he knew he was shooting at a peace officer.
This evidence “defeats the notion that strong evidence of one
inflammatory crime was improperly used to bolster any weak
evidence supporting the other crime.” (People v. Westerfield
(2019) 6 Cal.5th 632, 691; see also People v. Scott (2015) 61
Cal.4th 363, 396 [“the potential for a spillover effect was
minimal” from nonmurder to murder charge, where evidence of
the murder “was also substantial”].) Accordingly, Lamb was not
prejudiced by any spillover effect.
Nor did joinder of the attempted murder and murder
charges render Lamb eligible for the death penalty or convert
the matter into a capital case. (Alcala v. Superior Court (2008)
43 Cal.4th 1205, 1228–1229; see also People v. Simon (2016) 1
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Opinion of the Court by Evans, J.
Cal.5th 98, 128–129 (Simon) [where one of two joined incidents
would independently give rise to a capital charge, there is less
risk of prejudice].) In sum, Lamb has not shown prejudice to
establish that the trial court abused its discretion by denying
his pretrial severance motion.
Lamb further contends joinder of the attempted murder
and murder charges, in hindsight, resulted in gross unfairness
amounting to deprivation of a fair trial or a denial of due process
at the guilt phase. (See Simon, supra, 1 Cal.5th at p. 123
[“[E]ven if the trial court’s ruling was proper as a matter of state
law, we will reverse the judgment if the defendant shows that
joinder of the charges actually resulted in ‘gross unfairness’
amounting to a denial of due process during the guilt phase”].)
“Whether joinder worked a gross unfairness turns upon
assessing whether it was ‘reasonably probable that the jury was
influenced by the joinder in its verdict of guilt.’ ” (People v.
Vargas (2020) 9 Cal.5th 793, 819.) Here, the trial evidence was
similar to that before the court when it ruled on defendant’s
severance motion, and “ ‘strong evidence warranting conviction’
supported all the charges.” (Ibid.) Hence there is no reasonable
probability that the guilt verdict would have been different if
evidence regarding the attempted murder had not been
introduced and no gross unfairness at trial occurred.
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Opinion of the Court by Evans, J.
B. We Need Not Reach Lamb’s Claim That the
Gang-murder Special Circumstance Is
Unconstitutionally Vague or Insufficiently
Narrowing
Lamb contends the gang-murder special circumstance6 is
unconstitutionally vague and fails to sufficiently narrow the
offenses in which the death penalty may be imposed. (§ 190.2,
subd. (a)(22).) He asserts there is no meaningful distinction
between a first degree murder charge with a gang enhancement
and a substantive gang offense, and a murder charge with a
gang-murder special circumstance.
As discussed below, we conclude that the gang-murder
special circumstance and death judgment must be vacated due
to the changes to section 186.22 from Assembly Bill No. 333.
Accordingly, Lamb’s challenge to the constitutionality of the
gang-murder special circumstance is moot, and we need not
address this claim.
III. GUILT PHASE
A. The Trial Court Did Not Err in Admitting the
Fox Videos
On February 20 and 21, 2001, Fox 11 News broadcast two
video segments described as an undercover report “expos[ing]
[PEN1] for the first time on TV.” Lamb contends the Fox videos
were irrelevant and unduly prejudicial. Although the question
6
Section 190.2, subdivision (a)(22), or the gang-murder
special circumstance, provides, “[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
Section 186.22, and the murder was carried out to further the
activities of the criminal street gang.”
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Opinion of the Court by Evans, J.
is close, we conclude the trial court did not abuse its broad
discretion in admitting the videos.
1. Factual Background
a. Fox 11 News videos
The two videos collectively ran about 12 minutes. In the
first video, after the reporter introduces PEN1 as a gang
“increasing recruitment efforts in the ranks of white
supremacist skinheads” and making a push for power in prison
and out on the streets, Miller7 appears with his pit bull. Amid
images of dogs fighting and a tattooed Miller holding and firing
a gun, Miller discusses using his dog as a weapon and owning
over 300 guns. Miller is described as a shot caller in PEN1, and
the reporter describes the gang as “ready to kill enemies and
snitches.” The video then explores the origins of PEN1 and its
place in the white supremacist skinhead movement
accompanied by images of PEN1 graffiti, PEN1 and other white
supremacist tattoos, including swastikas, and gang members
making Nazi salutes. The video cuts to Miller saying, censored
for broadcast, “F___ that n______” while shooting at a target. It
also portrays PEN1’s drug activity by featuring law
enforcement, unknown gang members, and Miller discussing
selling and using methamphetamine alongside imagery of drug
use, paraphernalia, and a cabin destroyed in a
methamphetamine manufacturing accident.
As the video shifts to describing PEN1’s efforts to recruit
new members and “strengthen their position among other white
7
Although Miller’s appearance and voice were disguised in
the videos, it was stipulated that the person in question featured
in the video was Miller. Also, as noted ante in part I.A.1.e.,
Johnson and others immediately recognized Miller in the videos.
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Opinion of the Court by Evans, J.
criminal elements,” a correctional officer states, “[t]hese groups
are going to start popping up everywhere and they are . . .
extremely violent.” Accompanied by more images of swastika
tattoos and Nazi-saluting gang members, the reporter states
PEN1’s “die on your shield philosophy . . . fits well with a group
that has evolved from punk rockers to racist skinheads to a gang
of thugs moving into organized crime.” Miller reappears with
his pit bull and states: “In this business it’s guns, speed,
violence and sex. That’s what it’s all about.” The first video
concludes with a preview of the next with the reporter claiming,
“[l]aw enforcement sources say there is an alarming chain of
events launching PEN1’s power, causing an alliance with
another well known white supremacist group and threatening
to beef up PEN1’s influence in prison yards and out in the
street.”
In the second video, which aired the following day, the
reporter states that PEN1 is “now positioning themselves as a
criminal force inside prison walls,” and that “cops say PEN1
violence can already reach from prison yards to neighborhood
streets.” Alongside images of PEN1 president Mazza’s
mugshots and racist tattoos, the video describes an incident in
which Mazza was released from prison in 1999 and within five
hours he was back in Orange County smoking
methamphetamine and beating and stabbing a gang dropout. A
correctional officer states, “[t]his particular group has a very
great potential for violence and are pretty much unpredictable
when that violence may occur.”
Accompanied by images of prisons, tattooed prisoners
exercising, white supremacist gang graffiti and tattoos, and a
burning and spinning swastika, the video then discusses PEN1’s
rise to influence within the prison system, explaining that with
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Opinion of the Court by Evans, J.
members of the Aryan Brotherhood locked away in special units
at maximum security prisons, the Nazi Lowriders began
running the prison yards “and calling the shots for white Nazi
gangs out in the streets.” However, when the Department of
Corrections named the Nazi Lowriders a prison gang in 1999,
its members were also locked down in special security cells,
which according to the reporter, “has opened a prison door for
PEN1.”
After stating that PEN1 leaders Mazza, Rizzo, and
Stringfellow formed alliances with the Aryan Brotherhood and
Nazi Lowriders, and that they “[a]ll still embrace their white
supremacist philosophy,” the video states PEN1 “are now
modeling themselves into a more seasoned prison gang” with
their main goal being to profit from drug sales. Miller then
appears alongside images of drugs and bullets on a table, and
states, “I sell it for 125 dollars an 8-ball,” and “[i]t’s a white
man’s drug.” The video then shifts to discussing PEN1’s efforts
to expand into other counties and prisons, and describes a
violent assault committed by 18-year-old PEN1 member Bryan
O’Leary against an ex-white supremacist in Huntington Beach.
With images of Miller’s fist with brass knuckles, the reporter
states, “[t]here is no doubt that PEN1 figuratively and literally
have put on white supremacist brass knuckles,” after which
Miller declares: “If I sock you with this, you’re not going to get
up. I guarantee that.”
At the video’s conclusion the reporter states: “And gang
investigators guarantee that PEN1 has already moved beyond
its neo-Nazi beginnings into organized crime. At the same time,
attorneys for reputed PEN1 leaders Donald Mazza and Dominic
Rizzo say their clients are not guilty of conspiracy to murder
charges that they now face in Orange County and they quote,
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Opinion of the Court by Evans, J.
look forward to the truth coming out at trial, and that’s
scheduled to begin next week.”
b. Admissibility argument and ruling
Before trial, the prosecutor sought to introduce the Fox
videos on the ground they were probative of the “motivation
behind the murder of Scott Miller.” Rump, joined by Lamb,
objected to the videos on the ground they were unduly
prejudicial because Miller rarely appeared in the videos and the
videos had “a lot of media hype” to make PEN1 “look like the
most dangerous thing out there.”
The trial court expressed concern that the prosecutor had
substituted a television program for the testimony of an expert
with no opportunity for cross-examination, and that certain
images were prejudicial: “We’ve got cross burnings. We’ve got
swastikas. We’ve got attack dogs. We’ve got
methamphetamine. We’ve got people being accused of murder.
We’ve got allegations of association with Nazi Lowriders, with
Aryan Brothers. How much more inflammatory could it get?”
However, the court was ultimately persuaded that the probative
value of demonstrating a motive to kill Miller was not
substantially outweighed by the prejudice, finding the videos
relevant to proving the requisite knowledge for the street
terrorism charge as well as supplying the motive for the
homicide. (Evid. Code, § 352.)
At Lamb’s request, the trial court admonished the jury on
the limited purpose of the videos as follows: “Evidence
consisting of news segments aired by Fox 11 News was
introduced during the trial. This evidence was presented to you
for limited purposes. By admitting this evidence the court is not
advising you that it actually goes towards proving any issue in
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
this case; that determination is to be made by you. The news
broadcast contains images of bigotry, opinions by certain
individuals, inflammatory remarks by purported gang members
and sensationalism by newscasters. You may not consider the
recording as proof of the truth of any statements made by
anyone during the recording. The information contained in the
news segments is relevant for two purposes only: 1. Did a
defendant view either broadcast and if so did the broadcast
serve to notify that defendant that members of PEN1 engage in
criminal activity? 2. Did the airing of the broadcast provide a
motive for the killing of Scott Miller? You may not consider
anything contained on the recording 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 prosecutor read the admonishment to the jury prior
to playing the videos during his guilt phase opening statement.
The videos were admitted into evidence at the conclusion of the
prosecution’s case-in-chief. The court repeated the limiting
instruction and admonishment during guilt phase instruction,
and it was included in the written instructions provided to the
jury.
2. Analysis
“Except as otherwise provided by statute, all relevant
evidence is admissible.” (Evid. Code, § 351.) Relevant evidence
is that which has “any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of
the action.” (Evid. Code, § 210.) Lamb contends the Fox videos
were irrelevant because — as the prosecutor conceded in his
closing argument — there was no direct evidence that Lamb had
seen the videos prior to Miller’s death. Nor, contrary to the
prosecutor’s opening statement, was any evidence introduced
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
that Mazza had ordered that Miller be killed. Lamb further
argues that because the videos were broadcast over one year
before Miller’s murder, they are not probative of Lamb’s motive
to kill. We disagree.
In People v. McKinnon (2011) 52 Cal.4th 610, 656, we held
evidence of rumors that the victim had killed a member of the
defendant’s gang was admissible to establish the defendant’s
motive for killing the victim more than a year later. In doing so,
we rejected the defendant’s argument that the evidence was
inadmissible “simply because the prosecution failed to establish,
by direct means, that defendant had heard the rumors about
[the] death or the gang-related circumstances surrounding it.
Ample evidence confirmed defendant’s gang membership, his
gang identity, and his association with other gang
members . . . .” (Ibid.) Under these circumstances, “the jury
could readily infer defendant’s familiarity with the
information . . . that was circulating ‘on the street.’ ” (Ibid.)
Here, too, although there was no direct evidence Lamb watched
the Fox videos, there was other evidence from which the jury
could readily infer Lamb’s familiarity with the videos, including
his membership in PEN1, where it was known that Miller had
appeared in the videos.
Additionally, Lieutenant Epperson testified that the time
between an act of disrespect and payback can sometimes be
lengthy and that he had investigated cases where payback was
enacted years after a disrespectful act. Mason testified there
was an understanding within the gang that “something” was
supposed to happen to Miller as a result of the Fox videos, and
Lieutenant Epperson was also aware of a recurring rumor that
Miller would be killed for participating in the videos. The jury
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
could reasonably infer that Lamb was also aware of Miller’s
participation in the Fox videos and their import.8
Lamb contends that the videos should have been excluded
under Evidence Code section 352, which provides that a trial
court, “in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” We review a trial court’s
decision to admit evidence under Evidence Code section 352 for
abuse of discretion, and “do not disturb the trial court’s ruling
unless it was arbitrary, capricious, or made in a ‘ “patently
absurd manner that resulted in a manifest miscarriage of
justice.” ’ ” (People v. Thomas (2023) 14 Cal.5th 327, 358; see
People v. Doolin (2009) 45 Cal.4th 390, 439 (Doolin) [“ ‘In other
words, evidence 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’ ”].)
8
Aside from motive, the Fox videos were also admitted as
probative of Lamb’s knowledge that PEN1 engaged in criminal
activity, which was an element of the street terrorism charges.
(§ 186.22, subd. (a).) The question of whether the court erred in
admitting the videos for this purpose is moot given our
conclusion below that the gang convictions must be reversed due
to the changes to section 186.22 occasioned by Assembly Bill No.
333.
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Opinion of the Court by Evans, J.
Lamb argues the Fox videos were unduly inflammatory
and created the substantial likelihood that the jury would use
them for an illegitimate purpose. He relies upon People v. Diaz
(2014) 227 Cal.App.4th 362. There, the defendant was convicted
of second degree murder arising out of a fatal car crash in which
defendant was driving with a 0.21 blood-alcohol level after
having been twice convicted for driving with an elevated blood-
alcohol level. (Id. at pp. 366–368.) Two videos that the
defendant had viewed at mandatory alcohol education programs
that explored the consequences of alcohol-related driving
offenses and the impact they had on victims’ families were
played for the jury. The Court of Appeal concluded admission of
the videos was error as they “created a substantial danger of
inflaming the jury’s passions by engendering similar feelings of
sympathy for the victims of the charged offenses and their
families,” and contained “numerous images that serve to
heighten the emotional impact of the videos” as well as
“numerous statements that were entirely irrelevant to the case,
and were highly prejudicial in that they suggested to the jury
that it would be acting in an aberrant fashion if it were to find
[the defendant] not guilty.” (Id. at pp. 380, 381.)
Diaz is distinguishable here. The Fox videos, although
graphic, had substantial probative value in establishing motive.
Indeed, that Miller described PEN1’s criminal enterprise in
sensationalized videos aired shortly before two of the gang’s
founders were set to go to trial is highly relevant evidence of
motive, which “makes the crime understandable and renders
the inferences regarding defendant’s intent more reasonable.”
(People v. Roldan (2005) 35 Cal.4th 646, 707.) Thus, the Fox
videos were not introduced simply to improperly elicit strong
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
emotion and are substantially more probative than the videos in
Diaz so as to outweigh their prejudicial effect.
The videos contained graphic and disturbing material and
were played in the prosecutor’s opening statement. The
prosecutor admitted the material was disturbing and the trial
court expressed concern over the videos’ potential prejudice.
However, Evidence Code section 352 “ ‘speaks in terms of undue
prejudice. Unless the dangers of undue prejudice, confusion, or
time consumption “ ‘substantially outweigh’ ” the probative
value of relevant evidence, a[n] [Evidence Code] section 352
objection should fail.’ ” (Doolin, supra, 45 Cal.4th at p. 439.)
Although Lamb argued in the trial court that the prosecutor’s
theory of the case could be accommodated through other means
or that portions of the videos should be redacted,9 “the
‘persuasive power of the concrete and particular is often
essential to the capacity of jurors to satisfy the obligations that
the law places on them.’ ” (People v. Marks (2003) 31 Cal.4th
197, 227 (Marks).) The jury was entitled to view what the
prosecutor theorized and witnesses confirmed was the
motivation for murder, and the Fox videos and the inflammatory
content contained therein “assisted the jury in understanding”
the motivation for the crime, “and the People were entitled to
employ such evidence to prove their case.” (Ibid.)10 Lamb has
9
Lamb does not argue on appeal that the videos should
have been redacted.
10
The Attorney General argues the videos were not unduly
prejudicial because the evidence was “case-neutral” in that the
defense attempted to portray Johnson as the person who killed
Miller partially because of his participation in the Fox videos.
Lamb argues we should reject this argument because his
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Opinion of the Court by Evans, J.
failed to demonstrate that the probative value of the Fox videos
was substantially outweighed by a substantial danger of undue
prejudice to constitute an abuse of discretion.
Additionally, “ ‘[a] limiting instruction can ameliorate
[Evidence Code] section 352 prejudice by eliminating the danger
the jury could consider the evidence for an improper purpose.’ ”
(People v. Gonzalez (2021) 12 Cal.5th 367, 409.) Here, the court
instructed the jury multiple times that the Fox videos contained
images of bigotry, opinions by certain individuals, inflammatory
remarks by purported gang members, and sensationalism by
newscasters. It also instructed the jury it was not to consider
the videos as proof of the truth of any statements made by
anyone in the recording or for any purpose other than that
provided, nor were they to conclude that Lamb was a person of
defense did not depend on playing the videos, much of the
content was irrelevant to prove motive, and their inflammatory
nature would not assist the defense case. However, the trial
court, irrespective of the defense theory, could validly consider
the fact that the videos provided “case-neutral” evidence of
motive for PEN1 members generally, which would include
Johnson, when evaluating the risk of prejudice under Evidence
Code section 352 to Lamb. This is a unique scenario where the
challenged inflammatory evidence could actually raise some
doubt as to the identity of the perpetrator and thereby
neutralize the risk that the jury would improperly “prejudge”
Lamb himself and “reward . . . one side because of the jurors’
emotional reaction.” (People v. Bell (2019) 7 Cal.5th 70, 105,
italics added.) Although we do not conclude that Lamb
acquiesced to the prejudicial nature of the video simply because
defense counsel attempted to make the best of an adverse ruling
(see People v. Calio (1986) 42 Cal.3d 639, 643), we observe that
in conducting an Evidence Code section 352 analysis, the trial
court was not precluded from considering the fact that at least
certain aspects of the videos were not prejudicial, and perhaps
even helpful, to Lamb.
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Opinion of the Court by Evans, J.
bad character or disposed to commit crimes. The prosecutor
read this admonition prior to playing the videos during his
opening statement and iterated that they were being introduced
for a very limited purpose, and the admonition was again read
during guilt phase instruction and included in the written
instructions. We presume that the jury understood and followed
these instructions. (People v. Hajek and Vo (2014) 58 Cal.4th
1144, 1178.)
Lamb contends the admonition was insufficient to avoid
undue prejudice, because “the prejudicial evidence presented to
the jury is a sensationalized mass-media presentation designed
to incite an emotional rather than a rational reaction, and to
instill fear into the jurors personally because of the gang’s threat
to the public at large.” (Fn. omitted.) However, the admonition
explicitly confronted and addressed the particularized
complained of potential prejudice.
Even assuming the videos were erroneously admitted, we
conclude it is not reasonably probable that a result more
favorable to Lamb would have been reached absent the error.
(People v. Watson (1956) 46 Cal.2d 818, 836.) Lamb argues that
the admission of the Fox videos was so prejudicial that it
violated his federal constitutional rights to due process and a
fair trial, and that we should therefore apply the standard of
review in evaluating the harmlessness of the alleged violations
of the federal Constitution set forth in Chapman v. California
(1967) 386 U.S. 18 (Chapman), which requires reversal unless
the error is “ ‘ “harmless beyond a reasonable doubt.” ’ ” (People
v. Schuller (2023) 15 Cal.5th 237, 251.) “But the admission of
evidence, even if erroneous under state law, results in a due
process violation only if it makes the trial fundamentally
unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439; see also
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Opinion of the Court by Evans, J.
Marks, supra, 31 Cal.4th at p. 227 [the application of ordinary
rules of evidence like Evid. Code § 352 does not implicate the
federal Constitution and thus we review such allegations of
error under Watson].) Regardless, even if the admission of this
evidence were viewed as a due process violation, it would be
harmless under either standard.
As observed ante in part II.A., there was strong evidence
of Lamb’s guilt. Lamb told Mason he had killed Miller, he was
in possession of the murder weapon a few days after the murder,
and he was present with Rump at an apartment adjacent to the
murder location and departed shortly before the murder. Other
evidence, including Mason’s and Lieutenant Epperson’s
testimony, demonstrated that Lamb was a PEN1 member and
had a related motive for the killing.
In addition, substantial other evidence of PEN1’s bigotry
and violent criminal activities was introduced at trial. While
the Fox videos contained incendiary images of racist symbols
and white supremacist emblems, there was evidence shown to
the jury that Lamb had such imagery tattooed on his own body.
The jury was aware Lamb had the words “blood” and “honor”
with a swastika in the middle around his neck, another swastika
under his right eye, yet another swastika on his right arm, a
Celtic cross with “skin” tattooed on top of it, “P.D.S.” (for PEN1
Death Squad) on top of his right eye, “L.A.S.” (for Los Angeles
Skins) on his left arm, “W.P.” (for white power or pride) on his
back, and “Death Squad” on his leg.
In addition, Lieutenant Epperson testified that PEN1 had
become one of the fastest growing white racist gangs in
Southern California and in the California prison system. PEN1
was antisemitic and tended to hate any nonwhite racial group.
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Opinion of the Court by Evans, J.
Lieutenant Epperson also testified that PEN1 hated law
enforcement and government because they viewed them as
Zionist organizations established to suppress Aryans. Likewise,
Johnson testified that he gave a Nazi salute while in court on a
separate case and referred to the courthouse as the “house of the
Jews.”
The methamphetamine sale and use depicted in the Fox
videos was substantiated by Lieutenant Epperson’s testimony
concerning his personal knowledge of PEN1’s sale and use of the
drug. Lieutenant Epperson’s expert testimony also covered the
relationship between PEN1, the Aryan Brotherhood, and the
Nazi Lowriders discussed in the Fox videos.
Accordingly, although the Fox videos were offensive and
graphic, their contents were largely proven by other properly
admitted evidence at the guilt phase. (See People v. Riccardi
(2012) 54 Cal.4th 758, 828–830.) Given these circumstances,
any error was harmless.
B. Admitting Rump’s Jailhouse Statement Was Not
Reversible Error
Lamb argues a recording of a jailhouse conversation
between himself and Rump was erroneously admitted under
state hearsay law and violated his confrontation right under
Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Bruton
v. United States (1968) 391 U.S. 123, and People v. Aranda
(1965) 63 Cal.2d 518. We see no constitutional error and hold
harmless any state law error.
1. Background
When Lamb and Rump were arrested, they were placed in
separate interview rooms and videotaped yelling back and forth
to each other. During this time, Rump asked Lamb, “[w]ho the
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Opinion of the Court by Evans, J.
fuck was that dude in the white car trying to get our ass?” Lamb
responded, “I don’t know.” Soon after, a detective entered
Lamb’s room and Lamb yelled to Rump: “Hey, hold on dog. I
got tell them I got nothing to say.” Afterward, Rump yelled, “I
think that white car might have been a parole agent,” and Lamb
said, “I’m out of here Comrade.” Rump then stated: “I thought,
I thought he was trying to hit me, though. Hello. Where did you
go?” Lamb responded, “[bye] homie.”
Before trial, the prosecutor moved to introduce Rump’s
statement that he thought he and Lamb were being pursued by
a parole officer, and Lamb objected, arguing the evidence was
irrelevant, speculative, and did not constitute an adoptive
admission. As to Rump, the court ruled the statement would be
relevant to establish knowledge for the attempted murder
charge noting a parole officer qualifies as a peace officer. The
court also found that the statement did not qualify as an
adoptive admission by Lamb but otherwise reserved ruling on
its admissibility against Lamb until the presentation of
evidence.
During his opening statement, the prosecutor asserted
Lamb and Rump knew they were being overheard. Referencing
the statement that Rump believed the man in the white car was
a parole agent, the prosecutor stated Rump “is thinking about
the excuse they wanted to come up with for running from the
officers.”
During testimony about the recorded conversation, the
prosecutor moved to admit the recording into evidence. Defense
counsel indicated no objection “other than as stated” and the
court admitted the video and a transcript.
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Opinion of the Court by Evans, J.
The court revisited the issue prior to the close of evidence
and ultimately found that the “statement is arguably hearsay,
but technically it’s not. The relevance of the statement is the
possible proof of the defendant’s knowledge of intent, not for the
truth that the person in the white car was actually a parole
officer. Even if it were hearsay, the declaration-against-penal-
interest exception would apply.” The court also found the
statement was not testimonial. The court indicated it would
admonish the jury that if the statement constituted an
admission it could be considered as such only against Rump, and
it could only be used against Lamb for the purpose of
determining that such statement is circumstantial evidence
that Lamb had a motive to commit the crime of attempted
murder on a peace officer.
During his closing argument, the prosecutor argued that
Rump’s statement was contrived and that “[t]he reason why
they were running is because they figured out somebody
realized they killed Scott Miller.” The prosecutor also asserted
that Lamb and Rump were worried that someone had seen them
commit the murder or knew they were responsible, “[a]nd that’s
why Mr. Rump comes up with the story, ‘well, we’ll say that’s a
parole officer.’ ” The prosecutor noted that a parole officer is a
peace officer and that the statement “hurts both ways” because
it demonstrated both their knowledge that they were being
pursued by a peace officer, “[b]ut more importantly, it’s
consciousness of guilt relating to the March 8th incident. ‘That
white car is a parole officer; let’s make that our story.’ ”
However, the prosecutor conceded that there was no evidence
Lamb had heard the statement.
On rebuttal, the prosecutor again argued the reason Rump
made the statement was “not because he wants to tell us about
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Opinion of the Court by Evans, J.
parole agents, but because they’re thinking about excuses for
why they were running from the cops. ‘Let’s float this idea: we
ran because we’re parolees at large and this is a parole agent.’ ”
The court instructed the jury in the modified language of
CALCRIM No. 305: “You have heard evidence that the
defendants made oral and written statements before trial. You
may consider that evidence only against the defendant who
made the particular statement and not against the other
defendant. There is one exception to this instruction. Evidence
was presented that Mr. Rump made a statement to Mr. Lamb
while both were incarcerated in the Anaheim City Jail. Such
statement was ‘Hey I think that white car might have been a
parole agent.’ You must determine 1) whether such statement
is circumstantial evidence that Mr. Rump knew he was being
pursued by a peace officer on March 11, 2002 and 2) if it is,
whether that statement is also circumstantial evidence that the
defendant Lamb had the motive or intent to commit the crime
of attempted murder on a peace officer.”
2. Analysis
Lamb contends Rump’s statement was introduced against
Lamb for the truth of the matter stated in violation of his state
hearsay and federal confrontation clause rights.
As to state law, the trial court ruled the statement was
nonhearsay “as possible proof of the defendant’s knowledge of
intent, not for the truth that the person in the white car was
actually a parole officer.” Even if hearsay, the court found the
statement constituted a declaration against penal interest, and
then stated the jury would be admonished it could only be
considered an admission against Rump and circumstantial
evidence of motive as to Lamb. However, the modified
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Opinion of the Court by Evans, J.
instruction stated the evidence could be used as circumstantial
evidence that Rump knew he was being pursued by a peace
officer and that Lamb had the “motive or intent to commit the
crime of attempted murder on a peace officer.”
Accordingly, the convoluted arguments and rulings lack
clarity, as evidenced by the parties’ positions on this issue. The
Attorney General claims the statement is not hearsay because
it was not offered to prove that Lamb and Rump were being
pursued by a parole officer because the pair were in fact being
pursued by a police officer. Lamb contends the statement was
admitted for the truth of Rump’s belief that they were being
pursued by a parole officer, which would constitute hearsay.
However, even if we were to assume the trial court erred
in admitting Rump’s statement against Lamb, it is not
reasonably probable the outcome would be different absent the
error considering other evidence that Lamb knew or reasonably
should have known they were being pursued by police. Though
Sergeant Helmick and Detective Allen were driving unmarked
vehicles, Lamb and Rump engaged in a headlong flight after
Rump observed Sergeant Helmick in his side-view mirror.
During the foot pursuit, an extremely loud police helicopter was
hovering overhead and though the pursuing officers were in
plain clothes, both were holding their radios, had their guns
drawn, and were wearing some indicia of their status as law
enforcement.
Additionally, the admission of Rump’s statement did not
violate the federal confrontation clause, and Crawford and the
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Aranda-Bruton doctrine are inapplicable here.11 Out of court
statements that are not offered for their truth are not hearsay
(Evid. Code, § 1200) and no further Crawford analysis is
required. (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6 (Cage)
[“Crawford made clear that there are no confrontation clause
restrictions on the introduction of out-of-court statements for
nonhearsay purposes”], citing Crawford, supra, 541 U.S. at
p. 60, fn. 9.) However, even if Rump’s statements were admitted
for their truth, they would not qualify as testimonial statements
as that term has been articulated by the high court. (See Cage,
at p. 981 [“the confrontation clause is concerned solely with
hearsay statements that are testimonial”], citing Davis v.
Washington (2006) 547 U.S. 813, 823–825.) Inter alia, the
colorful and informal remarks between the two suspects shouted
through the interview room walls are not sufficiently formal to
meet that prong of the Crawford test. Further, they were not
made by their declarants for the primary purpose of preserving
evidence for later use at trial. (See Ohio v. Clark (2015) 576 U.S.
237, 243–249 [for a summary of its own jurisprudence and the
evolution of the proper understanding of what circumstances
can render a statement “testimonial”].) “Thus, binding high
court precedent requires us to hold that the Sixth Amendment
11
We have held that “[t]o the extent that our decision” in
Aranda, regarding redaction or exclusion of the out-of-court
confession of a defendant that implicates a codefendant,
“constitutes a rule governing the admissibility of evidence, and
to the extent this rule of evidence requires the exclusion of
relevant evidence that need not be excluded under federal
constitutional law, it was abrogated in 1982 by the ‘truth-in-
evidence’ provision of Proposition 8 (Cal. Const., art. I, § 28,
subd. (d) [now subd. (f)(2)]).” (People v. Fletcher (1996)
13 Cal.4th 451, 465.)
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is inapplicable and that defendant’s confrontation clause claim
therefore fails.” (People v. Cortez (2016) 63 Cal.4th 101, 129; see
also People v. Tran (2022) 13 Cal.5th 1169, 1196 (Tran) [“In sum,
because the confrontation clause applies only to testimonial
hearsay statements, the Aranda-Bruton doctrine’s Sixth
Amendment protections likewise apply only to testimonial
hearsay statements”].)
C. The Firearm Examiner’s Testimony Did Not
Violate People v. Sanchez
Lamb argues that the firearm expert’s testimony
improperly relayed information from a report prepared by a
nontestifying firearms examiner, in violation of People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez). We disagree.
1. Background
The prosecution called Rocky Edwards, a forensic firearm
and toolmark examiner employed by the Santa Ana Police
Department. Edwards testified that he was familiar with
Laurie Crutchfield, a firearm examiner with the Orange County
crime lab, and that she had previously conducted an
examination of ballistic evidence in this case. However, in April
2007, Edwards became aware that defense counsel wanted him
“to do a reexamination of the evidence from the beginning” to
see what conclusions he would reach, and that as a result of the
defense request, the prosecutor arranged to have Edwards
reexamine “from the beginning all of the evidence . . . .”
Edwards testified that he reviewed Crutchfield’s report
prior to his examination. In doing so, Edwards discovered that
Crutchfield found the firearm to operate normally and noted the
magazine to have a maximum capacity of 13 bullets. Edwards
also confirmed that Crutchfield’s report concluded the following:
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Opinion of the Court by Evans, J.
a casing found inside the gun had been fired by that gun; the
casing found at the homicide scene had been fired by that same
weapon; the bullet core recovered from the inside of Miller’s
head did not have enough characteristics to reach a conclusion;
and the bullet jacket recovered from Miller’s head had enough
characteristics “for her to conclude that it’s consistent as being
fired from the weapon, but not enough for her to give a complete
match . . . .”
Edwards explained the scientific basis for determining
whether a specific bullet or cartridge case was fired by a specific
weapon and stated that he “need[s] overwhelming agreement
before I’ll make a determination.” Edwards described how he
conducted his examination, which included test firing the
weapon to test its functionality and to recover fired bullets and
casings for comparison purposes.
Edwards concluded that the weapon functioned properly
and that he had “zero doubt” that the two cartridge cases
submitted for examination were fired by the handgun. The
bullet jacket had the same “class characteristics” as the gun but
had “insufficient individual characteristics for comparison” to
make a conclusive determination as to whether it had been fired
by the handgun. Examination of the bullet core was also
inconclusive. Edwards also testified that an expended casing
found inside the gun may not have ejected because some
external force impeded the movement of the slide, possibly a
white bandana wrapped around the grips. Edwards explained
that this did not contradict his and Crutchfield’s conclusion that
the weapon functioned properly when test fired.
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2. Discussion
In Sanchez, we “adopt[ed] the following rule: When any
expert relates to the jury case-specific out-of-court statements,
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay. . . .
If the case is one in which a prosecution expert seeks to relate
testimonial hearsay, there is a confrontation clause violation
unless (1) there is a showing of unavailability and (2) the
defendant had a prior opportunity for cross-examination, or
forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th
at p. 686; see Crawford, supra, 541 U.S. at pp. 62, 68.)12
First, it is unclear whether Edwards’s testimony
concerning Crutchfield’s conclusions runs afoul of Sanchez, as
there is no indication that Edwards told the jury that he relied
upon Crutchfield’s report as a basis for his opinion or suggested
that the jury rely on the report’s content because Edwards
considered Crutchfield’s statements to be true. (Sanchez, supra,
63 Cal.4th at pp. 684–685; see also id. at p. 682 [“When an
expert relies on hearsay to provide case-specific facts, considers
the statements as true, and relates them to the jury as a reliable
basis for the expert’s opinion, it cannot logically be asserted that
the hearsay content is not offered for its truth”].) Though
Edwards testified that he had reviewed the report and relayed
its conclusions to the jury, Crutchfield’s opinions were not
presented or relied upon as the basis of a hypothetical question.
Nor did Edwards indicate that he relied upon Crutchfield’s
examination or agreed with her conclusions, aside from relating
12
Though no objection was raised in the trial court, a failure
to object here does not forfeit Lamb’s Sanchez claim on appeal.
(People v. Perez (2020) 9 Cal.5th 1, 9.)
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his own conclusions without reference to Crutchfield’s. Indeed,
Edwards confirmed that he “did a complete, thorough and from
the beginning examination of this weapon . . . independent of
what Miss Crutchfield did . . . .” It was also made clear that his
opinion was based upon his own original, independent
examination at the behest of defense counsel.
Thus, it appears that testimony about Crutchfield’s report
was admitted not to bolster Edwards’s opinion, but to explain
the context in which Edwards was brought into the case as an
independent expert and to establish that his opinion was not
influenced by the earlier examination. The truth of
Crutchfield’s conclusions was immaterial to Edwards. “Neither
the hearsay doctrine nor the confrontation clause is implicated
when an out-of-court statement is not received to prove the truth
of a fact it asserts.” (Sanchez, supra, 63 Cal.4th at p. 681, citing
Crawford, supra, 541 U.S. at p. 59, fn. 9.)
Nevertheless, Crutchfield’s conclusions were admitted
without limitation, and the record is silent as to whether they
were admitted as nonhearsay or under an exception to the
hearsay rule. Assuming that admission was erroneous under
Sanchez or Crawford, any error is harmless beyond a reasonable
doubt. (Sanchez, supra, 63 Cal.4th at p. 698.)
Edwards’s conclusions were uncontroverted and
supported by testimony concerning his extensive expertise, the
science of firearm and toolmark comparison, the examination he
undertook, and the independent bases for his conclusions.
Though we acknowledge the potential for Edwards’s conclusions
to be bolstered in that they comported with another firearm
examiner’s findings, that danger is mitigated both by evidence
of Edwards’s independent analysis and evidence that he was
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sought by defense counsel to reexamine the ballistics evidence
“from the beginning.” Indeed, in closing, Lamb’s counsel argued:
“Rocky Edwards is the expert. That’s why I wanted Rocky
Edwards.”
Lamb’s reliance on the Court of Appeal’s decision in People
v. Azcona (2020) 58 Cal.App.5th 504 (Azcona) does not compel a
different result. Lamb argues that “Crutchfield’s hearsay
conclusions, testified to by Edwards, infected the jury with the
false sense that his conclusions had been vetted or confirmed by
the first analyst, an impression underscored by his statements
about there being ‘zero doubt’ as to his conclusions, and that no
other possible result could have been reached.” In Azcona, a
firearms expert testified to his opinion that two bullet casings
were fired from the same gun. (Id. at p. 510.) When asked how
he ensured his work was correct, the expert explained his work
was reviewed and approved by his supervisors “ ‘for technical
aspects in the report to be sure I had everything correct in my
work and I didn’t transpose anything . . . .’ ” (Id. at p. 514.) On
appeal, the defendant argued this testimony violated his
confrontation rights. (Ibid.) The appellate court agreed, holding
that the expert related testimonial hearsay statements that
presented case specific facts “when the expert told the jury that
another examiner had indicated approval of and agreement with
the expert’s conclusions in this case. The prosecution was in
effect able to introduce the opinion of a second expert without
exposing that witness to cross-examination, depriving
defendant of his Sixth Amendment right of confrontation.” (Id.)
That is not what happened here. Edwards’s examination
and opinion were not reviewed or approved by Crutchfield. To
the extent Crutchfield’s opinions were introduced without
affording Lamb his right to confrontation, the appellate court in
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Azcona “acknowledge[d] that when a testifying expert offers an
independently formed opinion, erroneously admitted evidence
that a supervisor agrees with the opinion will often be
harmless.” (Azcona, supra, 58 Cal.App.5th at p. 515, citing
People v. Lopez (2012) 55 Cal.4th 569, 585 [admission of
nontestifying analyst’s laboratory report linking the defendant’s
name to blood sample was harmless beyond a reasonable doubt
in light of testifying analyst’s independent opinion].) The Court
of Appeal also found that the expert’s independent opinion was
“itself inadmissible insofar as it contained the unsupported
conclusion that the bullet casings were certain to have been fired
from the same gun. Taken together, that conclusion and the
hearsay statements about supervisor approval gave the
impression that the expert’s opinion was entitled to more weight
than it would otherwise deserve.” (Azcona, at p. 515.) We do
not have the same compounding error here. Because Edwards’s
testimony was based on his independent analysis and he, at
most, relayed Crutchfield’s similar conclusion without relying
on it, any error in admitting Edwards’s testimony was
harmless.13
D. The Prosecutor Did Not Commit Misconduct
During Closing Argument
Lamb argues the prosecutor committed misconduct during
guilt phase closing argument. Describing the prosecutor’s
strategy as “a number of one-two punches,” Lamb asserts the
prosecutor attacked defense counsels’ integrity while
13
Given our conclusion that any Sanchez error would be
harmless, we need not address Lamb’s further contention that
the purported Sanchez error demonstrates that the refusal to
sever the murder and attempted murder charges resulted in
gross unfairness.
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improperly vouching for the strength of the evidence. We
disagree.
As a preliminary matter, Lamb never objected to the
statements he now challenges and has thus forfeited this claim.
“As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion — and on
the same ground — the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety.” (People v. Samayoa (1997)
15 Cal.4th 795, 841.)
The claim also lacks merit. “Under federal law,
‘ “Improper remarks by a prosecutor can ‘ “so infect[ ] the trial
with unfairness as to make the resulting conviction a denial of
due process.” ’ ” ’ [Citation.] Under state law, ‘ “a prosecutor
who uses deceptive or reprehensible methods to persuade either
the court or the jury has committed misconduct, even if such
action does not render the trial fundamentally unfair.” ’ ”
(People v. Huggins (2006) 38 Cal.4th 175, 206 (Huggins).)
“When attacking the prosecutor’s remarks to the jury, the
defendant must show that, ‘[i]n the context of the whole
argument and the instructions’ [Citation], there was ‘a
reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’ ”
(People v. Centeno (2014) 60 Cal.4th 659, 667.)
1. Asserted Attacks on Defense Counsel’s Integrity
“The prosecution is given wide latitude during closing
argument to make fair comment on the evidence, including
reasonable inferences or deductions to be drawn from it.”
(People v. Harris (2005) 37 Cal.4th 310, 345.) “ ‘A prosecutor
commits misconduct if he or she attacks the integrity of defense
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counsel, or casts aspersions on defense counsel.’ ” (People v.
Pearson (2013) 56 Cal.4th 393, 442 (Pearson).) “ ‘It is, of course,
improper for the prosecutor “to imply that defense counsel has
fabricated evidence or otherwise to portray defense counsel as
the villain in the case . . . . Casting uncalled for aspersions on
defense counsel directs attention to largely irrelevant matters
and does not constitute comment on the evidence or argument
as to inferences to be drawn therefrom.” ’ ” (People v. Redd
(2010) 48 Cal.4th 691, 749.)
Defense expert Dr. Smith testified regarding the effects of
methamphetamine use and opined that the jail video of Lamb
and Rump showed that Lamb was at the “agitation/rage” stage
of methamphetamine impairment, while Rump was “more in
rage, beginning of psychosis” phase. (See ante, pt. III.B.) Dr.
Smith conceded that psychosis requires a clinical analysis that
he did not conduct on Rump, nor did Dr. Smith consider his own
2007 examination of Lamb in rendering this opinion. Rather,
Dr. Smith based his opinions about Lamb and Rump solely on
the video.
During the prosecutor’s closing argument, he said:
“[W]hat [Dr. Smith] was trying to do is not fair and it is not right.
Psychoses? Think about it.” The prosecutor also asserted that
Dr. Smith’s opinion based solely upon video of Lamb and Rump
was “absolute trash, and it has no place in a courtroom in a case
like this.” The prosecutor also said: “Don’t let them fool you.
When I say, ‘them,’ I’m talking about the defendants.”
A prosecutor “ ‘is free to remind the jurors that a paid
witness may accordingly be biased and is also allowed to argue,
from the evidence, that a witness’s testimony is unbelievable,
unsound, or even a patent “lie.” ’ ” (Pearson, supra, 56 Cal.4th
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
at p. 442.) That is what occurred here. Although the
prosecutor’s reference to Dr. Smith’s opinion as “absolute trash”
was intemperate, there is no reasonable likelihood that the jury
would have understood the prosecutor to be asserting that
defense counsel sought to deceive the jury. (Ibid.) Rather, the
prosecutor argued in effect that Dr. Smith’s opinion lacked
sound foundation and should not be credited.
Lamb next asserts that when the prosecutor argued that
defense counsel failed to deliver on assurances made in his
opening statement, he insinuated defense counsel had
attempted to fool the jury. The prosecutor argued: “[Defense
counsel] stood in front of you in opening statement and said, ‘I’m
gonna prove to you beyond a reasonable double that the gun was
not jammed.’ And I remember thinking, ‘man, you’re gonna buy
me a big drink because this gun was jammed.’ ” Lamb further
faults the prosecutor for arguing that defense counsel used “red
herring[s] . . . to get your focus away from your job” and for
asking the jury to “[t]hink about what the defense want[s] you
to buy.” These statements were proper argument. (People v.
Harris (1989) 47 Cal.3d 1047, 1085, fn. 19 [“It is totally proper
to remind the jury in this way that the [defense’s opening]
statement was inaccurate in that some of those pieces are
missing and that the verdict should rest only on evidence that
has been admitted”]; People v. Cunningham (2001) 25 Cal.4th
926, 1002, 1003 [prosecutor’s argument that defense counsel’s
“job is to create straw men” and “put up smoke, red herrings,”
was not misconduct and “would be understood by the jury as an
admonition not to be misled by the defense interpretation of the
evidence, rather than as a personal attack on defense counsel”].)
The prosecutor also argued that “[t]hey don’t want 12 . . .
because if they can fool one juror into taking his or her focus
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Opinion of the Court by Evans, J.
away from the facts and the law, they win. That’s not really fair
because if you follow the law reasonably, objectively and fairly,
the only conclusion is that they’re guilty beyond any reasonable
doubt.” Even assuming there is a reasonable likelihood the jury
would understand the prosecutor to be referring to defense
counsel, he “simply used colorful language to permissibly
criticize counsel’s tactical approach,” and did not improperly
attack counsel’s integrity. (Huggins, supra, 38 Cal.4th at
p. 207.) The prosecutor simply “urg[ed] the jury not to be misled
by defense evidence” and argument. (Cummings, supra, 4
Cal.4th at p. 1302.)
Lamb next objects to the prosecutor’s response to Rump’s
argument that Lieutenant Epperson had refused to answer
questions. On cross-examination, Rump asked Lieutenant
Epperson whether a particular hypothetical scenario would be
consistent with a crime committed for the benefit of a criminal
street gang. Lieutenant Epperson responded that it was such
an absurd set of hypothetical facts that he could not give a valid
answer. During Rump’s closing argument, he asserted that
Lieutenant Epperson, Mason, and Johnson had all refused to
answer questions, adding, “[m]ust be something contagious
about gangs.” On rebuttal, the prosecutor argued: “Doesn’t . . .
it kind of turn your stomach — it turned mine — when [Rump]
gets up here and says [Lieutenant] Clay Epperson refused to
answer questions just like Mason and just like Billy Joe
Johnson. I mean, this is just pure imagination that has no basis
in reality. He said . . . he refused to answer questions. You
know what I think he’s referring to is when [Lieutenant] Clay
Epperson said, ‘the hypo you’re giving me is absurd. I can’t
answer your question because the hypo you’re giving me is
absurd.’ And he calls that refused to answer question.
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Remember his hypo is, you shoot at somebody, but you don’t
intend to kill them.”
Lamb asserts the “prosecutor[ ] insiste[d] that the
argument was nausea-inducing to him personally, and . . .
suggest[ed] that the jurors should have the same reaction. . . .”
We see no impropriety. “The prosecutor’s comments responded
directly . . . to earlier arguments made by defense counsel . . . .
When the comments are considered in context, there is no
[reasonable] likelihood that the jury would have understood the
comments as anything beyond criticism of defense counsel’s
tactical approach in argument and the defense view of the
evidence in the case, as is allowed. [Citations.] The comments
did not constitute an improper argument or an attack on
counsel’s personal integrity.” (People v. Linton (2013) 56 Cal.4th
1146, 1206; cf. People v. Cole (2004) 33 Cal.4th 1158, 1203 (Cole)
[not reasonably likely that the jury understood the prosecutor’s
references to defense counsel as “ ‘deceiv[ing],’ ” “ ‘unfair,’ ”
“ ‘misleading,’ ” or “ ‘tricky’ ” to be personal attacks on counsel’s
integrity where each of the statements was made in the context
of rebutting a statement defense counsel had made during his
closing argument].)
The prosecutor told the jury: “I know you’re getting tired.
I know it’s been a long day already. Please bear with me. You’d
want me to do my job, so please bear with me. Let me just — I’ll
tell you what I sometimes worry about. What I worry about
sometimes is somebody sitting there going, ‘[prosecutor], I got it.
I re[a]l[l]y got it. You really don’t have to keep going. I got it.’
I have to be able to go to sleep at night and I have to do my job.
So bear with me. I’m not trying to insult anybody’s intelligence.
I know you got it, probably, but I need to talk about — I need to
do my job. So please bear with me. I know it’s hard. I know it
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Opinion of the Court by Evans, J.
gets tedious. I know we’ve been sitting for a few hours. So
please bear with me.” Lamb focuses on one sentence in this
portion of the prosecutor’s argument, “I have to be able to go to
sleep at night, and I have to do my job.” He argues the
prosecutor contrasted his approach with that of defense counsel
and insinuated they “were conducting their job in an unfair
manner and were trying to keep the jurors from doing their
jobs.”
Not so. “Although defendant singles out particular
sentences to demonstrate misconduct, we must view the
statements in the context of the argument as a whole.” (Cole,
supra, 33 Cal.4th at p. 1203.) The prosecutor did not mention
defense counsel. Moreover, this statement was made during a
discussion of jury instructions and the above-quoted language
was preceded by the prosecutor turning to the conspiracy
instruction (“Okay. All right. So now we start with count one,
okay? That’s CALJIC — excuse me, CALCRIM 563 is the
instruction that defines a conspiracy — it’s a long instruction.
We’re going to talk about it.”) and a discussion of that
instruction followed. As such, the complained-of statement was
merely the prosecutor recognizing that it had been a long day
and that the jury was getting tired and acknowledging the
necessary but tedious task of applying the evidence to the
instructions, but that he needed to do his job.
Finally, Lamb takes exception to the prosecutor’s
statement that Lamb and Rump “are not here on trial because
they can serve as a billboard for Hitler. They’re not here on trial
because they’re white supremacists. They’re not here on trial
because they’re filled with hate. They’re not here on trial
because they glorify a symbol that stands for unimaginable
atrocity, that swastika symbol. That’s not why they’re here on
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trial. It’s despicable, absolutely despicable, but that’s not why
they’re here on trial. They’re here on trial because they killed
this human being, and they’re here on trial because they tried
to kill a peace officer.”
Lamb claims that giving the jury this reminder was
“paralipsis,” a rhetorical device where a statement is made then
denied for the purpose of emphasizing the statement. He claims
this was improper in light of the prosecution’s evidence that
Lamb was a white supremacist, though he does not separately
argue that the trial court erred in admitting such evidence. The
prosecutor did not commit prejudicial misconduct by
commenting on potentially inflammatory evidence in the record
when urging the jury not to convict Lamb of any crime simply
because he was a white supremacist. (See People v. Bradford
(1997) 15 Cal.4th 1229, 1379 [though a “prosecutor commits
misconduct in making comments calculated to arouse passion or
prejudice,” such remarks will not be so construed unless a
reasonable juror would have interpreted them as such]; People
v. Wrest (1992) 3 Cal.4th 1088, 1106–1107 [prosecutor’s use of
paralipsis to highlight improper argument was not prejudicial].)
2. Asserted Vouching
Lamb claims that during closing argument, the prosecutor
improperly vouched for the strength of his evidence based on his
personal experience. We disagree.
“ ‘Improper vouching occurs when the prosecutor either (1)
suggests that evidence not available to the jury supports the
argument, or (2) invokes his or her personal prestige or depth of
experience, or the prestige or reputation of the office, in support
of the argument.’ ” (People v. Rodriguez (2020) 9 Cal.5th 474,
480; see People v. Frye (1998) 18 Cal.4th 894, 971 (Frye) [“A
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prosecutor is prohibited from vouching for the credibility of
witnesses or otherwise bolstering the veracity of their testimony
by referring to evidence outside the record”].) “The vice of such
remarks is that they ‘may be understood by jurors to permit
them to avoid independently assessing witness credibility and
to rely on the government’s view of the evidence.’ [Citation.]
However, these limits do not preclude all comment regarding a
witness’s credibility. ‘ “ ‘ [A] prosecutor is given wide latitude
during argument. The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ”
(People v. Bonilla (2007) 41 Cal.4th 313, 336–337.) “[S]o long as
a prosecutor’s assurances regarding the apparent honesty or
reliability of prosecution witnesses are based on the ‘facts of
[the] record and the inferences reasonably drawn therefrom,
rather than any purported personal knowledge or belief,’ [their]
comments cannot be characterized as improper vouching.”
(Frye, at p. 971.)
Lamb’s complaints concerning the prosecutor’s recurring
argument that the case was “not even close” and his repeated
use of the phrases, “[i]t gets better,” “I love this one,” “[g]ive me
a break,” and “[y]ou got to be kidding me” while arguing the
evidence are completely without merit. These instances were
comments on the trial evidence and there is no reasonable
likelihood the jury would understand the prosecutor to be
relying on evidence outside the record. “Counsel may vigorously
argue his case and is not limited to ‘Chesterfieldian politeness’ ”
(People v. Bandhauer (1967) 66 Cal.2d 524, 529), and there is
nothing to suggest these arguments constituted the prosecutor
injecting his personal beliefs based on facts not in evidence
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rather than merely commenting on the evidence adduced at
trial.
On rebuttal, the prosecutor referred to Johnson’s assertion
that he gave the murder weapon to Lamb and argued: “I’ve been
doing this for awhile, and . . . Johnson is not the first murderer
I cross-examined. He’s not gonna be the last. I’m telling you
this because it’s rare when the People’s case gets better after the
defense put their witnesses on, but that happened here. I was
sitting going, ‘this is great.’ The People’s case by the time I
rested was great, proof beyond a reasonable doubt. By the time
they finished putting their evidence on, I’m going, ‘man, it just
got better.’ It just kept getting better and better and better. It
has nothing to do with me. It has nothing to do with me. I’m
not saying I’m a good lawyer, no. It’s the truth.”
The propriety of the prosecutor’s reference to his own
experience is a close question. “[P]rosecutors should not purport
to rely on their outside experience or personal beliefs based on
facts not in evidence when they argue to the jury.” (People v.
Medina (1995) 11 Cal.4th 694, 758; see ibid. [prosecutor’s
statement that “ ‘no case I have ever seen’ ” had such
overwhelming evidence was “ ‘objectionable’ ”].) The
prosecutor’s comments that “I’ve been doing this for awhile” and
that it is rare for the People’s case to get better after the defense
presents their witnesses arguably references extra-record
evidence, namely, the prosecutor’s experience in trying other
cases.
However, we have found statements ostensibly
referencing a prosecutor’s experience to be proper commentary
on the evidence. (People v. Stansbury (1993) 4 Cal.4th 1017,
1057–1058 (Stansbury) [prosecutor’s statement “ ‘that’s the best
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case I’ve ever seen in any case I’ve ever prosecuted of intentional
misrepresentation and consciousness of guilt’ ” was not
inappropriate]; People v. Rich (1988) 45 Cal.3d 1036, 1092 [“ ‘I
have never seen deliberation and premeditation like that’ ” held
to be nothing more than fair comment on the evidence and
vigorous argument].) Here, these statements were made in the
context of arguing the implausibility and ineffectiveness of
Johnson’s testimony that he gave Lamb the murder weapon,
and thus was commentary on evidence produced at trial.
While we do not condone a prosecutor referencing their
experience in comparing a case to other matters not in evidence,
on balance, we conclude that there is no reasonable likelihood
the jury would have understood the prosecutor’s statement here
to be based on evidence outside the record. (Frye, supra, 18
Cal.4th at p. 1018; see Stansbury, supra, 4 Cal.4th at p. 1058
[“It must have been evident to the jury that it was the evidence
produced at trial, not the prosecutor’s experience, that
demonstrated defendant’s mendacity and consciousness of
guilt”].) The reference to the prosecutor’s experience was brief,
and it is unlikely the jury would have viewed the comment as an
invitation to determine the trustworthiness of Johnson’s
testimony based upon the prosecutor’s experience in other
criminal trials, as opposed to the testimony itself. Additionally,
the jury was instructed that the attorneys’ arguments are not
evidence, and we presume the jury was able to understand and
follow the instructions. (People v. Morales (2001) 25 Cal.4th 34,
47; People v. Yeoman (2003) 31 Cal.4th 93, 139.)
E. The Conspiracy to Commit Murder Conviction
Was Supported by Substantial Evidence
Lamb asserts that the trial court erred in denying his
motion for entry of judgment of acquittal for the charge of
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conspiracy to commit murder (§ 1118.1) and argues that no
substantial evidence supports his conviction for that crime.14
We disagree.
“ ‘The standard applied by a trial court in ruling upon a
motion for judgment of acquittal pursuant to section 1118.1 is
the same as the standard applied by an appellate court in
reviewing the sufficiency of the evidence to support a conviction,
that is, “whether from the evidence, including all reasonable
inferences to be drawn therefrom, there is any substantial
evidence of the existence of each element of the offense
charged.” ’ [Citation.] ‘The purpose of a motion under
section 1118.1 is to weed out as soon as possible those few
instances in which the prosecution fails to make even a prima
facie case.’ [Citations.] The question ‘is simply whether the
prosecution has presented sufficient evidence to present the
matter to the jury for its determination.’ [Citation.] The
sufficiency of the evidence is tested at the point the motion is
made. [Citations.] The question is one of law, subject to
independent review.” (People v. Stevens (2007) 41 Cal.4th 182,
200.)
We conclude that there was substantial evidence of
conspiracy to commit murder at the time the court denied the
section 1118.1 motion, and the record supports Lamb’s
14
Section 1118.1 provides in relevant part: “In a case tried
before a jury, the court on motion of the defendant or on its own
motion, at the close of the evidence on either side and before the
case is submitted to the jury for decision, shall order the entry
of a judgment of acquittal of one or more of the offenses charged
in the accusatory pleading if the evidence then before the court
is insufficient to sustain a conviction of such offense or offenses
on appeal.”
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subsequent conviction for this crime. “ ‘ “ ‘Conspiracy requires
two or more persons agreeing to commit a crime, along with the
commission of an overt act, by at least one of these parties, in
furtherance of the conspiracy.’ ” ’ [Citation.] ‘ “ ‘Evidence is
sufficient to prove a conspiracy to commit a crime ‘if it supports
an inference that the parties positively or tacitly came to a
mutual understanding to commit a crime.’ ” ’ [Citation.]
‘Evidence of an agreement does not require proof that the
parties met and expressly agreed; a criminal conspiracy can be
shown through circumstantial evidence. . . .’ [Citation.] ‘ “ ‘The
existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators
before and during the alleged conspiracy.’ ” ’ ” (People v.
Navarro (2021) 12 Cal.5th 285, 302–303 (Navarro).) “ ‘[A]ll
conspiracy to commit murder is necessarily conspiracy to
commit premeditated and deliberated first degree murder.’ ”
(People v. Maciel (2013) 57 Cal.4th 482, 515 (Maciel).)
Here, there was substantial circumstantial evidence of a
conspiracy to murder. (See People v. Homick (2012) 55 Cal.4th
816, 870 [the element of agreeing to commit a crime “must often
be proved circumstantially”].) That Lamb and Rump committed
the murder together is probative of an agreement to have done
so. Although two people committing a crime together does not
alone prove a conspiracy, it is probative of a conspiracy when
there is indicia of organization and forethought. (See People v.
Cockrell (1965) 63 Cal.2d 659, 667 [“The agreement may be
inferred from the conduct of the defendants in mutually carrying
out a common purpose in violation of a penal statute”].) Under
analogous precedent, the jury could reasonably infer that Lamb
and Rump entered the conspiracy to kill Miller at some point
after the Fox videos aired. (See Maciel, supra, 57 Cal.4th at
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p. 516; People v. Jurado (2006) 38 Cal.4th 72, 121 (Jurado)
[“Although there is no direct evidence that defendant and [an
accomplice] discussed in advance the killing of [the victim],
there was evidence that they were alone together . . . shortly
before the killing, during which a discussion and agreement
could have taken place”].)
Moreover, the circumstances of the killing further
evidence an agreement. On the day of the murder Lamb called
to speak to Hinson about something important. Lamb, Rump,
and Hinson were seen together later that night at Harris’s
apartment adjacent to where Miller was killed, and Miller was
killed moments after Lamb and Rump left the apartment. These
circumstances evidence planning activity and support an
inference that Lamb and Rump came to a mutual understanding
to murder Miller. Evidence that Lamb and Rump fled when
confronted by police also demonstrates a consciousness of guilt.
Miller was killed by a single gunshot wound to the back of
his head, a manner of killing that suggests planning and an
intent to kill. Miller had no defensive wounds, and a Pepsi can
and baseball hat were found underneath his body, indicating a
surprise attack. There was no evidence that Miller frequented
the area where he was killed. From this, the jury could
reasonably infer he was taken by agreement to the area where
Lamb and Rump were waiting to kill him.
Lamb, Rump, Johnson, Hinson, and the victim Miller were
all associated with PEN1. Their relationship provided insight
into their common understandings and motivations, and
ultimately the bases for an agreement. Mason’s and Lieutenant
Epperson’s testimony provided evidence that it would have been
known within the gang that Miller’s participation in the Fox
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videos would be met with severe consequences. Lieutenant
Epperson also testified that members of white supremacist
gangs would be expected to be aware of the crimes committed by
other members and would understand that committing a violent
crime would increase their status within the gang. Miller’s
status within PEN1 was already diminished prior to the videos
and he had become personally disliked within the gang. Mason
testified that Lamb did not have a high status in PEN1 prior to
committing the murder and expected “stripes” for having done
so. Additionally, it would be expected for a gang member to have
another gang member alongside as backup when committing a
violent crime. Furthermore, that Lamb and Rump had a close
relationship was evident, as jail correspondence between the
pair revealed expressions of love and loyalty and that they
referred to each other as their left and right “butt cheek.”
Along with evidence of Lamb and Rump’s conduct, the
“relationship, interests, and activities of the alleged
conspirators” here provides circumstantial evidence from which
a conspiracy may be inferred. (Navarro, supra, 12 Cal.5th at
p. 303.) Contrary to Lamb’s assertion, the absence of evidence
that Mazza ordered Miller to be killed does not render
insubstantial this other evidence supporting the conspiracy to
commit murder conviction.
We conclude this evidence collectively supports an
inference that the parties, including Lamb, “ ‘positively or
tacitly came to a mutual understanding’ ” to murder Miller.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) “As the object
of the conspiracy was to kill [the victim], his murder satisfied
the element of an overt act committed in furtherance of the
conspiracy.” (Maciel, supra, 57 Cal.4th at p. 518, see also
Jurado, supra, 38 Cal.4th at p. 121 [“Commission of the target
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offense in furtherance of the conspiracy satisfies the overt act
requirement”].)
F. Assembly Bill No. 333 Requires the Reversal of
the Gang Convictions, Enhancements, and
Special Circumstance
Lamb contends that the changes to section 186.22
occasioned by the enactment of Assembly Bill No. 333 require
reversal of the gang convictions, and the jury’s true findings on
the gang enhancements and the gang-murder special-
circumstance allegation. (See People v. Rojas (2023) 15 Cal.5th
561, 566, 580 [Assembly Bill No. 333’s definition of “criminal
street gang” applies to the gang-murder special circumstance].)
Specifically, Lamb argues that although the prosecution
introduced certified records of five predicate offenses to prove
the element of the gang’s pattern of criminal activity,15 there
was no evidence introduced at trial that the predicate offenses
“commonly benefited a criminal street gang, and the common
benefit from the offenses [was] more than reputational,” as
required under the amended statute. (§ 186.22, subd. (e)(1), as
amended by Stats. 2021, ch. 699, § 4.)
We conclude that although there was an abundance of
gang evidence presented to the jury, and each predicate offense
had a gang enhancement under a prior version of section 186.22,
the record does not sufficiently disclose the circumstances
surrounding the predicate offenses or how any specific predicate
offense actually benefited the gang. Thus, a rational juror could
15
“The offenses comprising a pattern of criminal gang
activity are referred to as predicate offenses.” (People v.
Valencia (2021) 11 Cal.5th 818, 829 (Valencia).)
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have reasonably concluded that any common benefit was not
more than reputational.
1. Background
a. Evidence of predicate offenses
The prosecution’s gang expert, Lieutenant Epperson,
discussed 14 offenses committed by various PEN1 members.
However, the prosecution admitted into evidence certified
records of only five of those offenses. In accordance with our
rulings in Sanchez, supra, 63 Cal.4th at page 686 [an expert
cannot relate as true case-specific facts asserted in hearsay
statements unless they are independently proven by competent
evidence or are covered by a hearsay exception] and Valencia,
supra, 11 Cal.5th at page 839 [facts concerning particular
events and participants alleged to have been involved in
predicate offense constitute case-specific facts that must be
proved by independently admissible evidence], the Attorney
General only discusses the predicate offenses established by
such evidence. Assuming, without deciding, that these records
constitute independently admissible evidence, we also only
consider these five predicate offenses here.
i. Brody Davis
In 1999, Brody Davis pled guilty and admitted that on
July 14, 1998, he knowingly, willfully, and unlawfully prevented
or dissuaded “a victim and witness to a crime” from giving
testimony at a preliminary hearing. (See § 136.1, subd. (a)(1).)
As the factual basis for the plea, Davis admitted that on that
date he “knowingly and actively participated in a criminal street
gang called [PEN1],” he “willfully promoted, aided and abetted
and furthered the interest of that gang and its members by
committing” the offense, and he committed the offense “for the
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benefit of, at the direction of, or in association with the [PEN1]
criminal street gang with the specific intent to promote, further,
or assist in any criminal conduct by [PEN1] gang members.”
(See § 186.22, subd. (b)(1).) Davis also pled guilty to street
terrorism. (§ 186.22, subd. (a).)
ii. Daniel Lansdale
In 2001, Daniel Lansdale pled guilty to 12 separate counts
involving theft and forgery. The factual basis for the plea
provided, in pertinent part: “On or about November 15, 2001
. . . I willfully and unlawfully entered . . . two different
department stores located at the Brea Mall, with the intent to
commit larceny and any felony as charged in counts 1 & 2 of
Amended #1 complaint. I committed the crime of burglary as
charged in count 1 of the Amended #1 complaint for the benefit
of, at the direction of, and in association with a criminal street
gang, to wit, [PEN1], while I was an active member of that gang
and I did so with the specific intent to promote, further and
assist in criminal conduct by [PEN1] gang members.”
iii. Brian Arthur O’Leary
In 2000, a jury found Brian Arthur O’Leary guilty of
attempted murder (§§ 187, subd. (a), 664) and street terrorism
(§ 186.22, subd. (a)), with an enhancement that the attempted
murder was committed for the benefit of PEN1 (§ 186.22,
subd. (b)(1)).
iv. Donald Mazza and Nick Rizzo
In 1999, Mazza, Rizzo, and Albert Sherwin were charged
with conspiracy to murder (§§ 182, subd. (a)(1), 187, subd. (a))
and the attempted murder of W.A. (§§ 187, subd. (a), 664), with
attendant gang enhancements (§ 186.22, subd. (b)(1)).
According to the overt acts alleged in the amended information,
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which was included as part of the certified records of the
predicate offenses admitted into evidence, Mazza, Rizzo, and
Sherwin went to an address to look for W.A., Mazza repeatedly
stabbed W.A. and “said to witnesses present ‘want some too
punk’ to intimidate and frighten witnesses,” Rizzo punched
W.A., Sherwin stood by as backup, and the three fled the scene
together.
In 2003, Mazza pled guilty to attempted murder with a
gang enhancement and street terrorism. The factual basis for
the plea was as follows: “On April 6, 1999, in Orange County, I,
with others aiding and abetting me, stabbed [W.A.] multiple
times, intending to kill him without excuse or justification. I did
this for the benefit of and in association with a criminal street
gang, [PEN1], within the meaning of Penal Code sections
186.22(a)[,] (b)(1), knowing that [PEN1] has engaged in a
pattern of criminal activity and while an active member of
[PEN1].”
In 2003, a jury found Rizzo guilty of conspiracy to commit
murder, attempted murder, and street terrorism. According to
the minute order of the verdict admitted into evidence, as to the
conspiracy and attempted murder convictions, the jury found it
true “that the defendant crime committed for the benefit of
criminal street gang within the meaning of [section]
186.22(b)(1).” (Sic.)
b. Instructions provided to Lamb’s jury
The instructions on the street terrorism charges here
provided that a criminal street gang, among other criteria, is
any ongoing organization, association, or group of three or more
persons, whether formal or informal, “[w]hose members,
whether acting alone or together, engage in or have engaged in
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a pattern of criminal gang activity.” The jury was instructed
that a “pattern of criminal activity” means: “1. The commission
of, or attempted commission of, or conspiracy to commit, or
solicitation to commit, or conviction of, or having a juvenile
petition sustained for commission of any combination of two or
more of the crimes listed in Instruction 1400A,[16] or two or more
occurrences of one or more of the crimes listed in Instruction
1400A; 2. At least one of those crimes was committed after
September 26, 1988; AND 3. The crimes were committed on
separate occasions or were personally committed by two or more
persons on the same occasion.” The jury was further instructed
that “[t]he crimes, if any, that establish a pattern of criminal
gang activity, need not be gang-related.”17
16
Instruction 1400A instructed the jury: “The following is a
list of the applicable crimes contained in Penal Code Section
186.22(e): 1. Murder, Attempted Murder or Conspiracy to
Commit Murder. 2. Manslaughter or Attempted
Manslaughter[.] 3. Assault with a deadly weapon or by means
of force likely to produce great bodily injury. 4. Robbery. 5. The
sale, possession for sale, transportation, manufacture, offer for
sale, or offer to manufacture controlled substances. 6.
Dissuading, intimidating or attempting to dissuade or
intimidate witnesses or victims. 7. Burglary. 8. Criminal or
Terrorist Threats. 9. Theft and unlawful taking or driving of a
vehicle, in violation of Section 10851 of the Vehicle Code.”
17
This instruction also provided: “If you find a defendant
guilty of a crime in this case, you may consider that crime in
deciding whether one of the group’s primary activities was
commission of that crime and whether a pattern of criminal
gang activity has been proved.” However, as amended by
Assembly Bill No. 333, section 186.22, subdivision (e)(2) now
provides, “[t]he currently charged offense shall not be used to
establish the pattern of criminal gang activity.” (Stats. 2021, ch.
699, § 4.)
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As to the gang enhancements, the jury was instructed that
the prosecution had to prove that Lamb “committed or
attempted to commit the crime for the benefit of, at the direction
of, or in association with a criminal street gang” and with the
“specific intent to assist, further, or promote in any criminal
conduct by gang members.” The instructions on the gang
enhancements, carrying a firearm by an active gang member,
and the gang-murder special circumstance all incorporated by
reference the definition of “criminal street gang” provided in the
street terrorism instruction.
2. Discussion
a. Changes to the definition of a criminal street
gang
Effective January 1, 2022, Assembly Bill No. 333 amended
section 186.22’s definition of a “criminal street gang.” (Stats.
2021, ch. 699, § 3.) In order to demonstrate the “pattern of
criminal gang activity” element of a “ ‘criminal street gang,’ ”
(§ 186.22, subd. (f)) the statute now requires, among other
things, proof of at least two enumerated predicate offenses
“committed on separate occasions or by two or more members”
which “commonly benefited a criminal street gang,” and that the
common benefit be “more than reputational.” (§ 186.22,
subd. (e)(1), as amended by Stats. 2021, ch. 699, § 4.) The
revised statute also provides, “[e]xamples 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.” (§ 186.22,
subd. (g), as amended by Stats. 2021, ch. 699, § 4.)
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Lamb observes that his jury was not required to find that
the predicate crimes used to establish the pattern of criminal
activity “commonly benefited” a criminal street gang in a way
“more than reputational.” (§ 186.22, subd. (e)(1).) Lamb also
notes that absent from the gang enhancement instructions were
the updated requirements of section 186.22, subdivision (g), that
to “benefit, promote, further, or assist means to provide a
common benefit to members of a gang where the common benefit
is more than reputational.” (Stats. 2021, ch. 699, § 4.)
The parties agree that Lamb’s jury was instructed under
the prior law and that the new requirements apply retroactively
to his case on appeal. (In re Estrada (1965) 63 Cal.2d 740; People
v. Cooper (2023) 14 Cal.5th 735, 738–739 (Cooper); Tran, supra¸
13 Cal.5th at pp. 1206–1207.)
b. Harmless error standard
The parties agree that the prejudice from an instruction
that omits an element of an offense is assessed under Chapman.
(Neder v. United States (1999) 527 U.S. 1, 4 (Neder); see Tran,
supra¸ 13 Cal.5th at p. 1207 [“When a substantive change occurs
in the elements of an offense and the jury is not instructed as to
the proper elements, the omission implicates the defendant’s
right to a jury trial under the Sixth Amendment, and reversal is
required unless ‘it appears beyond a reasonable doubt’ that the
jury verdict would have been the same in the absence of the
error”].)
In this assessment, we “conduct a thorough examination
of the record. If, at the end of that examination, [we] cannot
conclude beyond a reasonable doubt that the jury verdict would
have been the same absent the error — for example, where the
defendant contested the omitted element and raised evidence
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sufficient to support a contrary finding — [we] should not find
the error harmless.” (Neder, supra, 527 U.S. at p. 19.)
Conversely, where we conclude “beyond a reasonable doubt that
the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have
been the same absent the error, the erroneous instruction is
properly found to be harmless.” (Id. at p. 17.)
“In assessing prejudice in this context, the question is not
whether there is evidence in the record that would support a
jury finding of the missing element. Instead, we ask whether
we can conclude beyond a reasonable doubt that ‘the jury verdict
would have been the same’ had the jury been instructed on the
missing element.” (People v. Brown (2023) 14 Cal.5th 453, 474,
quoting Neder, supra, 527 U.S. at p. 17.) “Our task, then, is to
determine ‘whether the record contains evidence that could
rationally lead to a contrary finding with respect to the omitted
element.’ ” (People v. Mil (2012) 53 Cal.4th 400, 417 (Mil),
quoting Neder, at p. 19.)
c. People v. Cooper
Both parties rely on our recent decision in Cooper. There,
the defendant was a member of a gang, and the records of
conviction and gang expert testimony establishing the predicate
offenses showed that two fellow gang members committed one
crime each — robbery (§ 211) and a narcotics sale (Health & Saf.
Code, § 11351.5). (Cooper, supra, 14 Cal.5th at pp. 739–741.)
The gang expert also testified that the gang’s primary activities
were, among other offenses, robbery and narcotics sales, but did
not testify as to how the alleged predicate offenses benefited the
gang. (Id. at p. 741.) We concluded that, as now required by
Assembly Bill No. 333, “the failure to instruct that the alleged
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predicate offenses must have ‘commonly benefited’ the gang in
a ‘more than reputational’ manner (§ 186.22, subd. (e)(1)) was
not harmless beyond a reasonable doubt.” (Cooper, at p. 739.)
In doing so, we observed that, “[i]n sum, the grand total of
evidence relied on by the Attorney General for proving that the
alleged predicate offenses provided a common benefit that is
more than reputational to the gang is that there was a robbery
and a sale of narcotics by gang members and that a primary
activity of the gang is to commit robberies and the sale of
narcotics.” (Cooper, supra, 14 Cal.5th at p. 746.) We noted that
“the record does not disclose the circumstances surrounding the
predicate offenses and the prosecution never introduced any
evidence about how the gang commonly benefited from them.
While robbery and the sale of narcotics typically provide a
financial benefit to the offender, the record contains evidence
that could rationally lead to a contrary finding regarding
whether the fruits of the offenses were intended to or did benefit
the gang as a whole.” (Id. at p. 743.) Based upon this record,
we held that “a jury could have reasonably concluded that the
predicate offenses at issue were committed for personal gain
alone.” (Id. at p. 744.)
d. Analysis
Lamb argues there was no evidence — either documentary
or testimonial — that the offenses actually benefited the gang
and that the common benefit was more than reputational. Lamb
observes that “[w]hile burglary and dissuading a witness could
theoretically have been committed to benefit the gang, there was
no evidence in support of that theory,” and that “[t]here was no
testimony as to how the offenses provided an actual and common
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benefit to the gang beyond enhancing the reputation and status
of individual members.” We agree.
As to evidence concerning how committing crimes
benefited the gang, Lieutenant Epperson testified to his general
belief that any crime committed by a gang member benefits the
gang. Lieutenant Epperson explained that “criming into a gang”
was a way for a person to join a white supremacist gang by
“do[ing] crimes that would benefit the gang in some capacity,
and if you did enough work in terms of the crime, that you could
be admitted to the gang based on that alone.” However,
Lieutenant Epperson did not expound upon what crimes would
benefit the gang, or how. To gain respect in the gang,
Lieutenant Epperson testified that a person could demonstrate
that they are “willing to wade in and fight other people for the
benefit of the gang,” though he did not explain how that could
benefit the gang. Lieutenant Epperson also provided his
ultimate opinion that the murder and attempted murder
committed here would have been for the benefit of the gang, but
again did not explicate how. Lieutenant Epperson explained
that while PEN1 espoused a white racist ideology, it did not
motivate their day-to-day activities, and that “if you look at
what they actually do, they are self-serving mercenary
criminals.”18
18
That is, they did not “go out looking to commit crimes
against minorities” or “burn synagogues” or “burn crosses on
people’s lawns.” Rather than committing hate crimes, PEN1
“would be much more inclined to target people within their own
milieu, peer group . . . weaker Whites in their group. . . . to a
greater extent, the community at large, they’re victimizing them
by selling drugs, stealing property, engaging in identity theft.”
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Lieutenant Epperson provided some more specific
explanations as to how various crimes benefited the gang,
though they are also lacking. When asked by defense counsel
whether a gang member on drugs stealing a sandwich benefits
the gang, Lieutenant Epperson testified that it did because “he
can feed himself without having to spend his own money or to
sell any dope to buy that food.” In explaining the “concept of
backup within a gang,” Lieutenant Epperson stated that if a
fellow member were attacked or needed assistance with some
type of criminal enterprise, such as collecting on a debt, a
member would be expected to “back up the other players in the
gang. That is the benefit of the gang.” Lieutenant Epperson
also testified that victim and witness intimidation “is a feature
of the gang that is directly related to their use of violence. That
through the use of egregious violence, you hope to intimidate
other gang members, associates, and the general public that
they would be intimidated not to either inform on you to the
police or testify against you in court, and that they can stop a lot
of prosecutions against them by intimidating the witnesses.”
Lieutenant Epperson also explained how PEN1 was not a
turf-oriented gang or one which attached its identity to a
particular neighborhood and protected it from outside
intervention. Rather, white supremacist gangs tend not to
associate with a specific area but instead “tend to see themselves
in terms of being . . . an ideological movement.” Lieutenant
Epperson also stated that “white racist gang members, while
they use violence as a tool of their enterprise, they don’t use
violence in the same way that traditional gangs, Black and
Hispanic gangs, which tend to do a lot of, say, drive-bys, walk-
bys, walk up shoot other gang members in turf confrontations.
They use firearms as an intimidation factor and as a tool to
achieve a violent end when they need it.”
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Even if a jury were to parse this testimony and deduce
exactly how PEN1 commonly benefited from crimes committed
by its members, the lack of evidence of the circumstances
surrounding the predicate offenses at issue does not establish
that they fit into any of those scenarios so as to preclude a jury
from reasonably concluding that any common benefit was not
more than reputational. Here, other than general testimony
concerning how gang members could benefit the gang through
criminal acts, there was no other evidence “about how the
specific predicate offense actually benefited the gang. (See
People v. E.H. (2022) 75 Cal.App.5th 467 (E.H.) [finding that
though the predicate offenses included crimes that could, in
theory, provide a monetary benefit to the gang, the evidence did
not show that these predicate offenses actually benefited the
gang].)” (Cooper, supra, 14 Cal.5th at pp. 743–744.) There is no
evidence as to how Davis’s dissuasion of a witness, Lansdale’s
financial crimes, and O’Leary’s, Mazza’s, and Rizzo’s attempted
murder convictions actually provided a common benefit that
was more than reputational.19
19
It should be noted that the Fox videos did provide some
information on the circumstances of these crimes. The second
video describes the April 1999 attempted murder committed by
Mazza and Rizzo: “Detectives say within five hours of his
release [Mazza] was back in Orange County, seated inside a
camper smoking methamphetamine with two accomplices and
hit the victim, a gang dropout, [W.A.]. According to this felony
complaint, Dominic Rizzo, another PEN1 parolee, beat and held
[W.A.] as [Mazza] plunged a knife into him over and over again.
Then [Mazza] turned to witnesses and asked, ‘Want some too
punk?’ ” The second video also displayed O’Leary’s image and
stated that he along with another “young skinhead” attacked an
ex-white supremacist, and an officer states, “[o]ne guy took a
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The Attorney General states that Assembly Bill No. 333
“did not alter or otherwise amend the ordinary rules of evidence,
including the principle that reasonable inferences may be drawn
from the evidence,” and argues that the revised statute does not
disallow “reasonable inferences based on the facts of a particular
case — including inferences from the evidence about a gang’s
primary activities — that might inform whether a predicate
offense involved a common benefit that was more than
reputational.” In Cooper, we rejected a similar characterization
of our standard of review, and again do so here. (Cooper, supra,
14 Cal.5th at p. 743, fn. 7 [“The Attorney General incorrectly
characterizes the Chapman inquiry before us as asking whether
the jury could draw a reasonable inference that the alleged
predicate offenses commonly benefited the gang. This, however,
is not the proper standard”]; see also id. at p. 743 [a jury’s
determination that an offense is within the gang’s primary
activities merely constitutes a conclusion about the types of
activities in which a gang typically engages, which is distinct
from the question of whether a particular offense has commonly
benefited the gang, which “asks about how the specific predicate
offense actually benefited the gang”].) Though it may be
“permissible, as a general matter, to use circumstantial
evidence to prove a common benefit that is more than
reputational” (id. at p. 745, fn. 9), our inquiry here is not
whether a jury could have found a more-than-reputational
knife, stabbed him twice, another guy took a baseball bat and
hit him upside the head.” However, the jury was instructed that
it “may not consider the recording as proof of the truth of any
statements made by anyone during the recording.” Accordingly,
the jury could not supplement the evidence concerning the
predicate offenses with the circumstances detailed in the videos.
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common benefit. (See Mil, supra, 53 Cal.4th at p. 418 [unlike
sufficiency of the evidence claims, where we view the evidence
in the light most favorable to the prosecution and presume in
support of the judgment the existence of any facts the jury might
reasonably infer from the evidence, “our task in analyzing the
prejudice from the instructional error is whether any rational
fact finder could have come to the opposite conclusion”].)
To be sure, unlike Cooper and other cases that have
examined this issue following the enactment of Assembly Bill
No. 333, there was no direct evidence presented at Lamb’s trial
indicating PEN1 members committed crimes merely to enhance
the gang’s reputation at large. (Cf. Cooper, supra, 14 Cal.5th at
p. 741 [gang expert testified: “ ‘They’re out there going on
missions, they’re doing shootings, they’re doing robberies, they
function to do gang banging things. And that gets that gang’s
name out there”]; People v. E.H., supra, 75 Cal.App.5th at p. 473
(E.H.) [officer “explained that when members of the gang
commit violent crimes, like robbery, they benefit the gang by
bolstering its reputation within the community for violence”];
People v. Sek (2022) 74 Cal.App.5th 657, 669 [“Although there
was a great deal of evidence of benefits to the gang that went
beyond reputational,” Court of Appeal could not “rule out the
possibility that the jury relied on reputational benefit to the
gang as its basis for finding the enhancements true” where gang
expert testified that the type of crime committed “ ‘enhances not
only the individual gang members . . . but enhances the status
and their reputation of the . . . gang as a whole’ ”].) But here, as
in Cooper, “the prosecution made no attempt to prove that the
alleged predicate offenses provided a more than reputational
common benefit to the gang and [defendant] made no such
concession.” (Cooper, at p. 743.) Although the Attorney General
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Opinion of the Court by Evans, J.
repeatedly argues that the jury could infer an extra-
reputational benefit, he does not argue that the jury would have
been unable to infer the opposite.
Moreover, Lieutenant Epperson repeatedly testified as to
how an individual gang member could increase their status and
respect within the gang. Lieutenant Epperson explained that a
gang member “could earn respect in a gang . . . through the use
of violence, successful criminal enterprise, just being a very hard
individual. You don’t tell on your peers. You’re willing to wade
in and fight other people for the benefit of the gang. That’s . . .
how you would earn respect. The measure of a man within a
white racist gang is his willingness to use violence, and the more
egregious violence the better.” Lieutenant Epperson testified
that a PEN1 member who killed a police officer would see a huge
increase in their status. A gang member could also increase
their status by providing backup to another member.
Additionally, Lieutenant Epperson testified that possessing a
firearm, committing a crime with a gun, being in Pelican Bay
State Prison, or being falsely accused of a crime but taking “the
heat for it” would all increase a member’s status within the
gang.
Based upon this evidence, a juror could have concluded
that the predicate offenses were committed to bolster the
offender’s reputation within the gang, or if committed alongside
other gang members, that the offense provided the common
benefit of increased status to each perpetrator. As such, the
record contains evidence that could rationally lead to a contrary
finding as to whether the common benefit from an offense was
more than reputational.
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
Although a rational juror may well infer that at least two
of the predicate offenses were committed for a common benefit
that was more than reputational, there is a lack of evidence as
to how the specific predicate offenses at issue actually commonly
benefited the gang to preclude the opposite conclusion. While
Davis’s dissuading a witness offense and Lansdale’s financial
crimes could in theory have offered a common benefit that was
more than reputational under amended subdivision (g) of
section 186.22, the record here does not establish that benefit.20
The record does not disclose, for example, any details of Davis’s
offense, such as information about the witness dissuaded or
whether the preliminary hearing even concerned PEN1, so as to
demonstrate a more-than-reputational benefit. Nor does the
record of Lansdale’s convictions for financial crimes prove that
the gang benefited financially or otherwise in a manner that was
more than reputational. Similarly, the records of O’Leary’s,
Mazza’s, or Rizzo’s attempted murder convictions contain no
information about the victim that would demonstrate the crimes
were committed for “retaliation, targeting a perceived or actual
gang rival, or intimidation or silencing of a potential current or
previous witness or informant” (§ 186.22, subd. (g)), or that
would otherwise preclude a rational juror from inferring that
the common benefit to the gang was merely reputational. Nor
does the fact that some of the predicate offenses were committed
by high-ranking members change our conclusion, as their status
does not supplement the scant evidence of the circumstances of
the offenses to provide evidence of a more-than-reputational
20
Even if the record of Davis’s and Lansdale’s offenses were
more robust so as to meet the harmlessness standard, we note
that these offenses did not occur within three years of each other
as required by section 186.22, subdivision (e)(1).
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Opinion of the Court by Evans, J.
common benefit here. (Cf. Cooper, supra, 14 Cal.5th at p. 745
[“assuming arguendo that senior or well-known gang
membership could possibly be evidence that predicate offenses
commonly benefited the gang”].)
Rather, as in Cooper, the record “does not disclose the
circumstances surrounding the predicate offenses and the
prosecution never introduced any evidence about how the gang
commonly benefited from them.” (Cooper, supra, 14 Cal.5th at
p. 743.) Without more evidence of how these specific predicate
offenses commonly benefited the gang in a more than
reputational manner and given that the record contains
evidence that PEN1 members committed offenses to increase
their own reputation within the gang, we conclude that a
rational juror could have found that the predicate offenses did
not provide a common benefit that was more than reputational.
The instructional error is compounded by other changes in
the law that would affect the jury’s determination. The jury was
able to rely on case-specific hearsay concerning numerous other
predicate offenses that were not independently proven by
competent evidence, which is no longer permitted. (Sanchez,
supra, 63 Cal.4th at p. 686; Valencia, supra, 11 Cal.5th at
pp. 838–839.) The jury was instructed that the predicate
offenses need not be gang related, which directly contradicts
Assembly Bill No. 333’s new requirements. (Cooper, supra, 14
Cal.5th at p. 744.) The jurors were also “permitted to consider
the current offenses in determining whether the prosecution
had proven a pattern of criminal gang activity . . . .” (E.H.,
supra, 75 Cal.App.5th at p. 479.) This makes it more difficult to
conclude “beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.” (Chapman, supra,
386 U.S. at p. 24.)
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
To be sure, there was substantial evidence that PEN1 was
a gang, or at least the parties assumed that to be the case under
the prior version of section 186.22. Indeed, the jury was
presented with an abundance of evidence of PEN1’s criminal
activities from which it could rationally infer that the predicate
offenses were committed for a common benefit that was beyond
reputational. Were this a question of sufficiency of the evidence,
the outcome might be different. But determining whether the
evidence was sufficient to conclude that there was a common
benefit that was more than reputational is not our task. (Mil,
supra, 53 Cal.4th at p. 418.)
Despite the ample gang evidence here and the inferences
that could have been drawn therefrom, we conclude the absence
of evidence concerning the circumstances of the predicate
offenses and the actual common benefit to the gang suggests a
rational juror could have found the omitted requirements to be
unsupported. Accordingly, Lamb’s gang convictions, and the
jury’s true findings on the enhancements and the special
circumstance allegation must be reversed. Because this was the
only special circumstance found true by the jury, Lamb’s
judgment of death is vacated.
G. Lamb’s Claim of Cumulative Prejudice Is
Without Merit
Lamb contends that, even if independently harmless, the
cumulative prejudicial impact of the alleged guilt phase errors
discussed here “rise by accretion to the level of reversible and
prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.)
Aside from the instructional error and prejudice
occasioned by the passage of Assembly Bill No. 333 (ante., pt.
III.F.), we assumed but found harmless error in the admission
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
of the Fox videos (ante., pt. III.A.), Rump’s jailhouse statement
(ante., pt. III.B.), and the conclusions of the nontestifying
firearms examiner (ante., pt. III.C.). Although Lamb’s
meritorious Assembly Bill No. 333 claim results in the reversal
of the gang charges, enhancements, and special circumstance,
the assumed erroneous admission of this other evidence does not
compound to warrant reversal of any other charges or
enhancements.
IV. PENALTY PHASE RETRIAL
Lamb raises several claims of error relating to the penalty
phase retrial and to the validity of his death sentence. However,
we need not reach these claims given our conclusion that the
changes to section 186.22 made by Assembly Bill No. 333 result,
inter alia, in the reversal of the sole special circumstance alleged
and found true by the jury. Therefore, the death judgment must
be vacated, and Lamb’s penalty phase claims are moot. For the
same reasons, we need not address Lamb’s claim of cumulative
penalty phase error, or the Attorney General’s claims of an
unauthorized sentence and an error on the sentencing minute
order.
V. DISPOSITION
For the foregoing reasons, we reverse Lamb’s convictions
for street terrorism and unlawfully carrying a loaded firearm in
public by an active participant in a criminal street gang, as well
as the true findings on the gang enhancements and gang-
murder special circumstance. In so doing, we vacate Lamb’s
death judgment and remand the case to the trial court for any
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PEOPLE v. LAMB
Opinion of the Court by Evans, J.
retrial of the reversed convictions, enhancements, and special
circumstance. (Cooper, supra, 14 Cal.5th at pp. 746–747.) In all
other respects, the judgment is affirmed.
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
79
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Lamb
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal XX
Original Proceeding
Review Granted (published)
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S166168
Date Filed: July 11, 2024
__________________________________________________________
Court: Superior
County: Orange
Judge: William R. Froeberg
__________________________________________________________
Counsel:
Kathy R. Moreno, under appointment by the Supreme Court, for
Defendant and Appellant.
Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Julie L.
Garland and James W. Bilderback II, Assistant Attorneys General,
Holly D. Wilkens, Ronald A. Jakob, Michael T. Murphy and Donald W.
Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Kathy R. Moreno
Attorney at Law
P.O. Box 9006
Berkeley, CA 94709
(510) 717-2097
Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9211