The opinion
Filed 12/18/24
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084512
Plaintiff and Respondent,
v. (Super. Ct. No. FVI17001503)
RODERICK BARNES III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, John Peter Vander Feer, Judge. Reversed; remanded with
directions.
Daniel J. Kessler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Steve
Oetting, and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Roderick Barnes III of three counts of attempted
murder (Pen. Code, §§ 664, 187, subd. (a); counts 1–3), three counts of
attempted robbery (Pen. Code, §§ 664, 211; counts 4–6), and three counts of
assault with a firearm (Pen. Code, § 245, subd. (b); counts 7–9). Regarding
the attempted murder and assault offenses, the jury also found true that
Barnes personally discharged a firearm causing great bodily injury within
the meaning of Penal Code section 12022.53, subdivision (d), personally
discharged a firearm within the meaning of Penal Code section 12022.53,
subdivision (c), and personally used a firearm within the meaning of Penal
Code section 12022.53, subdivision (b). Concerning the assault offenses, the
jury found true that Barnes personally inflicted great bodily injury on the
victim within the meaning of Penal Code section 12022.7, subdivision (a).)
During phase 2 of the trial, the jury found Barnes guilty of
participating in a criminal street gang in violation of Penal Code
section 186.22, subdivision (a) as well as concluding that Barnes committed
counts 4 through 9 for the benefit of, at the direction of, or in association with
a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)).1
Finally, in phase 3 of the trial, the jury found true certain factors in
aggravation relevant to Barnes’s eventual sentence.
The court sentenced Barnes to prison for 70 years to life.
Barnes appeals, arguing the trial court prejudicially erred in overruling
his objection, under Code of Civil Procedure2 section 231.7, to the
prosecutor’s use of a peremptory challenge against a prospective juror. In
addition, Barnes asserts the trial court erred by failing to provide the jury
1 The court ordered the trial to be tried in three phases. In phase 1, the
jury was to determine Barnes’s guilt under counts 1 through 9 as well as the
corresponding enhancements that were not gang related. During phase 2,
the jury would consider Barnes’s guilt under count 10 and the gang
enhancements. For phase 3, the jury would determine if the prosecution
proved the alleged factors in aggravation for sentencing purposes.
2 Statutory references are to the Code of Civil Procedure unless
otherwise specified.
2
with CALCRIM No. 332 and that insufficient evidence supported the jury’s
verdict for participation in a criminal street gang as well as the gang
enhancements.
The People concede that Barnes’s latter two arguments have merit but
insist that the gang participation offense and gang enhancements can be
remanded for retrial because Barnes’s argument is based on the trial court’s
evidentiary error. We agree with the People that these two contentions are
well taken; however, we disagree that retrial is appropriate. Where, as here,
we reverse a conviction or true finding because of insufficient evidence,
double jeopardy principles prohibit retrial.
In addition, we conclude that the trial court erred in overruling
Barnes’s objection under section 231.7. In doing so, the court considered its
own reasons for striking the juror and explicitly found the prosecutor’s stated
reasons did not support the peremptory challenge. Accordingly, we reverse
the judgment in its entirety. However, on remand, the prosecution can elect
to retry Barnes for counts 1 through 9.
DISCUSSION3
I.
SECTION 231.7
A. Barnes’s Contentions
Barnes argues that the trial court prejudicially erred in denying his
motion under section 231.7 challenging the prosecutor’s use of a peremptory
3 Because the underlying facts of counts 1 through 9 are not important to
the resolution of the issues before us, we eschew the traditional statement of
facts in this opinion. Instead, we shall discuss the salient facts where needed
while addressing the issues Barnes raises.
3
challenge to strike a Black prospective juror. We agree with Barnes’s
contention.
B. Background
Barnes is a Black male. Prospective Juror No. 15 (PJ No. 15) is a Black
female. She was called to the jury box in the first group of 18 prospective
jurors. PJ No. 15 was the sole Black juror in the jury box at that time. The
court questioned each of the first 18 prospective jurors in turn. Regarding
PJ No. 15, the exchange was as follows:
“Q (BY THE COURT:) Number 15, good afternoon.
“A Good afternoon, sir.
“Q And – oh, so you[‘re] a supervisor for Walt
Disney?
“A Yes.
“Q And what do you supervise?
“A A guest information and ticket sales team. There
are 298 people underneath me.
“Q Okay. And where is your main office?
“A My home.
“Q Oh, you work from home. Did that change in the
last few years?
“A Due to COVID, sir.
“Q You used to drive to Orange County?
“A Yes, sir.
“Q How long have you worked for them?
“A Six months.
“Q How long?
4
“A Six months, and then 3 years prior to 2019.
“Q Okay. And so you had a gap in time?
“A Yes, sir.
“Q And what did you do during that gap?
“A I helped open the Galaxy Adventure. I was a
merchandise engineer.
“Q Okay. You’ve answered everything else. Thank
you.
“A Thank you.”
The following day, the prosecutor questioned the jurors. After asking
questions of prospective juror numbers 8 and 16, the prosecutor presented a
hypothetical and questioned PJ No. 15 as follows:
“[Prosecutor]: Now, another important duty of a juror is to
follow the law that the judge gives to you. Sometimes
jurors will come in and they’ll tell me, Sean, you know, I
want to serve, but there’s this law that I don’t believe in,
and I just can’t follow this law. And I very much appreciate
them letting me know at the very beginning. So if that is
you today with any of the laws we talk about, please let me
know.
“I would like to explore this via hypothetical. So imagine
you’re all jurors on a speeding case. Imagine there is a
hypothetical defendant who is charged with speeding. Let’s
say he was driving five miles over the speed limit, and the
officer gets up on the stand and proves to you all beyond a
reasonable doubt, for the sake of this hypothetical, that this
hypothetical defendant was driving 5 miles over the speed
limit. Okay? And the judge’s law is if you find that the
defendant was driving any speed over the limit, you must
return a verdict of guilty.
“Ma’am, Number 15, would you help me out with this one?
What do you think would your verdict be in this case?
5
“JUROR NO. 15: You stated that the judge said that
anything over the speed limit has to return a verdict of
guilty?
“[Prosecutor]: Yes, ma’am.
“JUROR NO. 15: The judge technically does not decide the
law. So in regards to if that was what we were being told
that we have to follow, then, yes, but if there was a notated
law then, no. We would not return.
“[Prosecutor]: You said the judge does not decide the law.
“JUROR NO. 15: Meaning that he created the law for us to
then apply.
“[Prosecutor]: No. No. He’s not the legislator. He just
gives you the law, the law of California.
“JUROR NO. 15: Then, yes, if he gave us the law to follow,
and there was without shadow of a doubt that that person
is going over the mile per hour speed limit, then, yes we
would return a verdict of guilty.
“[Prosecutor]: What about if it was only three miles over
the speed limit?
“JUROR NO. 15: You said anything above the stated speed
limit, so if even if 5 that technically still breaks the law.
“[Prosecutor]: Okay. So safe to say even one mile, you
would bring a verdict of guilty?
“JUROR NO. 15: (Nodded her head.)
“[Prosecutor]: Thank you, ma’am.”
Later, the prosecutor brought up the television shows CSI and Law &
Order and asked the potential jurors whether they understood that the time
frame depicted in those shows was unrealistic. Regarding CSI, the
prosecutor noted that the show features “special gadgets” as well as DNA and
fingerprint evidence for every case. He asked the potential jurors, “[D]o you
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feel like you’ll need that DNA, the fingerprints, everything, do you think
that’s necessary for a trial in order to return a verdict of guilty?” PJ No. 15
responded, “Yes.”
A few other jurors offered their thoughts on the matter, without
expressly agreeing with PJ No. 15. For example, Prospective Juror No. 19
qualified by saying, “Not if there is other proof.”
The prosecutor returned to PJ No. 15, asking, “Do you feel like you
absolutely need DNA fingerprints to find guilt beyond a reasonable doubt?”
PJ No. 15 qualified her earlier “yes” response and said that “[i]f there are
other factors then no, you wouldn’t just need DNA or evidence. If there are
other factors, there are other ways to prove burden of proof.” She noted that
“fingerprints and DNA can sometimes not reflect the entire truth.”
The prosecutor asked the other panelists about that issue and then
returned to PJ No. 15:
“[Prosecutor]: Juror Number 15, you said you work
as a supervisor for Walt Disney; is that right, ma’am?
“JUROR NO. 15: Yes, sir.
“[Prosecutor]: That sounds like a really cool job.
“JUROR NO. 15: It is.
“[Prosecutor]: I was a little bit jealous. Can you tell
me what you do in that position?
“JUROR NO. 15: Well, I do have—I do manage a
team underneath me. We assist with information
regarding upcoming trips to the Disneyland Resort,
regarding special events, and Magic Kingdom.
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“[Prosecutor]: You’re coordinating all that? You said
you have 278 people working underneath you?
“JUROR NO. 15: Yes, sir.
“[Prosecutor]: All right. Thank you, ma’am.”
When the parties finished questioning the potential jurors, the court
asked whether there were any challenges for cause. After hearing such
challenges, the parties were invited to make peremptory challenges. Among
other peremptory challenges, the prosecutor excused PJ No. 15. Defense
counsel then asked to be heard under section 231.7.4
After the potential jurors were excused, the court then clarified that
defense counsel was objecting, under section 231.7, to the prosecutor’s use of
a peremptory challenge on PJ No. 15. Counsel confirmed:
“I believe that the use of a peremptory challenge on this
particular Juror Number 15 was solely based on her race,
her race similar to that of Mr. Barnes, and dissimilar to
any potential or prospective witness in this case.
“And I don’t think there is any clear and convincing
evidence that an objectively reasonable person could view
this juror’s responses to voir dire as a basis for peremptory
challenge. And I don’t think any of her—there is no clear
and convincing evidence that an objectively reasonable
person would review the rationale or any perceived
rationale as unrelated to the prospective juror’s race.”
The court then noted that PJ No. 15 “appeared . . . to be perceived as a
black female, or African American female. The defendant in this case is
black, or African American male.” Further, the court said that it was not
aware of the racial identification of any of the alleged victims or any other
4 Defense counsel misspoke and referred to section 231.5. That said, it is
clear from the record and the subsequent argument before the trial court that
everyone understood section 231.7 was the correct statute.
8
witnesses. The court then asked the prosecutor to “state the reason for the
peremptory challenge and why it’s been exercised.”
The prosecutor replied:
“The reason for the peremptory challenge, 100 percent has
nothing to do with race. As the Court heard, Juror
Number 15 said that she has many people working
underneath her, and she repeated that again with me, that
there are people working underneath her. Her response to
questions were terse.”
In response to the court’s question about the prosecutor’s use of the
word “terse,” the prosecutor explained:
“Terse, t-e-r-s-e. Were short. They were―for example, I
asked if she could follow the law if the judge said that any
speed limit over―any speed over the limit must find guilty.
And instead of typical response, her response was that you
do not decide the law. I had to clarify that with her. But
just one of many examples how her responses were terse.
She would not work well with other jurors when she sees
people she supervises as underneath her.
“I will note for the record that prior to that peremptory
challenge on Juror 15, the People exercised three other
peremptory challenges. Prior to this new jury selection
law, my practice would not be to put any perceived race or
gender, because I felt it was irrelevant.”
After some additional explanations by the prosecutor that he did not
consider race in striking PJ No. 15, the court reiterated the prosecutor’s
reasons for striking that potential juror:
“So your reasons are, she said that many people work
underneath her. She was terse in her responses. She made
a statement that I don’t create the law, that was clarified
that the legislature decides the law. Based on that she
would―her comment about supervising people underneath
her she would not work well with other jurors. And you
exercised peremptory jurors from other racial groups before
striking or exercising peremptory challenge as to Juror
9
Number 15, who was the only in―looking in the box, jury
box, would be the only African American or Black on the
jury box. Correct?”
The prosecutor agreed with the court’s summary, emphasizing that if
PJ No. 15 was eager to tell him that he was incorrect, she would do the same
thing in the jury deliberation room.
After the prosecutor laid out his reasons for striking PJ No. 15, defense
counsel argued that the stated reasons did not justify a nondiscriminatory
reason for striking her, noting that the prosecutor’s explanation implicated
subdivisions (g)(1)(B) and (C) of section 231.7. In response, the prosecutor
asserted that his problem with PJ No. 15 was not her “lack of rapport or
demeanor or the response[,]” but “her attitude that she sees people who work
for her as underneath her. She’s repeated it twice.”
After the parties submitted, the court observed:
“It’s going to take me a little while. I have to go through
the questions.
“Part of the issue here is under 231.7, the (g)(1):
‘The following reasons for peremptory challenges
have historically been associated with improper
discrimination in jury selection (b), the juror
exhibited either a lack of rapport, or problematic
attitude, body language, or demeanor.’
“So that would go along with terse responses, questions
about deciding the law, supervising people underneath her.
So those would fit under that category. Lack of rapport,
problematic attitude, body language, or demeanor.
“The answers were not unintelligent or confused. I don’t
see inattentiveness or failing to make eye contact.· So those
aren’t at issue. It is the subsection (b) that the Court has to
look at and see if there is corroboration for that.”
10
The court’s comments led to further discussion between the parties
regarding whether PJ No. 15 would work well with other jurors or if the
prosecutor was merely complaining about her attitude or rapport.
Ultimately, the court took the matter under submission.
The next day, the court began by providing a tentative ruling on
Barnes’s objection under section 231.7:
“So one of the things―so I will say first that I did―was not
surprised or I actually anticipated a peremptory challenge
by the People, but not for the reason stated by [the
prosecutor]. One of the things I researched, it’s not so
much my notes, although I did verify certain things in
LiveNote. One of the statutes I wanted to refer to was the
Court’s ability to look beyond the actual reasons stated by
the prosecutor in this case. And CCP section
231.7[,subdivision] (d)(1) states:
‘The Court shall consider only the reasons actually
given, and shall not speculate on, or assume the
existence of other possible justifications for the use of
the peremptory challenge.’
“So the―so the reasons there were actually given by [the
prosecutor] were―was that Juror Number 15 said many
people working were underneath her in her supervisory
role. He found ‘underneath her’ to be some sort of
derogatory term, and her answers or responses were terse,
and then we have this little colloquy about deciding the law
where she misunderstood and clarified later with [the
prosecutor].
“So in looking at the definition of terse, terse just means
brief, or using very few words. So excusing a juror for
being brief or using very few words doesn’t seem to be
a―you know, it wasn’t rude, so I don’t think that
necessarily means she was unfriendly or rude. It means
brief and to the point, usually. I don’t―I don’t so I don’t see
how that is grounds for excusal. Many people gave short
answers and short responses. I don’t recall anybody who is
a supervisor of that many individuals.
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“So we have that being the actual response by . . . our
prosecutor. So I have to look at those that actual response,
and then decide is there a substantial likelihood that an
objectionably reasonable person would be unaware of
unconscious bias or actual bias. And then one of the
provisions state further in the CCP, saying that:
‘Historically, making justifying excusals for jurors,
these have been found to be historically been
associated with improper discrimination, and that
the prosecutor―prospective jury either exhibited lack
of rapport, or problematic attitude, body language, or
demeanor.’
“And that’s kind of where we are based on what was said
that:
‘There wasn’t a rapport, a close and harmonic
relationship in which the people or groups concerned
understand each other feelings or ideas and
communicate well.’
“A problematic attitude, body language wasn’t―that wasn’t
being presented, although I did note that she wore a mask,
and that may have limited communications. And then
demeanor refers to outward behavior or bearing. So that
was the reasons proffered, but they weren’t the reasons I
expected the People to offer, because the reason I thought
or expected a peremptory challenge to be exercised is
because this juror, when given that hypothetical about
driving and the speed limit, and that was questioned that
she didn’t understand. She apparently thought, she
believed the judge―she was being told by the judge to
return a verdict of guilty, but that was clarified. But she
did say that she would follow the law, and if it was proven,
if the proof was without a shadow of a doubt. So she didn’t
refer to beyond a reasonable doubt. She referred it has to
be proven to her without a shadow of a doubt, and so that
was her belief that it would have to be proven beyond a
shadow of a doubt.
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“Additionally, when she was―and I wrote this on my notes
yesterday, [the prosecutor] asked a question of the entire
group, the entire 18 about kind of CSI-type evidence,
referred to CSI and that type of language, and saying, well,
what would you need for―let me try and find it in my notes
here.
“(There was a pause in the proceedings.)
“Let me be more precise with the question. Ah, there it is.
Going through CSI and those types of language, and would
you―would you need fingerprint or DNA evidence to
convict? And she was the only person out of 18 to answer
yes, she would need DNA or fingerprint evidence to convict.
That is related to this case, because there is no DNA
evidence or fingerprint evidence. So she answered yes she
would need that. And then later on she clarified that, Well,
maybe certain factors. Then it seemed like she had
suspicion of DNA evidence and―and fingerprint evidence.
“So that separates her from other jurors, not based on race,
but appears from my perspective that she had a higher
standard of proof that she was going to hold the People to,
based on need to be proof beyond a shadow doubt. Nobody
ever challenged her on that, but that was her comment
about the burden of proof she would need would be beyond
a shadow of a doubt, she would need fingerprint or DNA
evidence before she could render a verdict of guilty. She
was the only individual who answered that question with a
yes. And she also, under clarification, well, later on when
she was talking about those factors, it appeared she had
suspicions in addition to whether DNA or fingerprint
evidence would be adequate.
“So, in the court’s view, that’s what I would―thought would
be the basis for the People’s reasoning for the peremptory
challenge, but it was not stated. Well, the code section
says, I can’t look. I can’t assume, or―well, it says:
‘The Court shall only consider the reasons actually
given and shall not speculate on or assume the
13
existence of other possible―existence of other
peremptory challenges.’
“So that’s the language the Court is grappling with. Can I
use that in my analysis? Because even though [the
prosecutor] did not present that, it was stated on the
record. So that’s where the Court’s at. That’s why I took a
recess.
“I tried to find published cases on that issue. I could not
find any published cases. So I’m giving a tentative
decision, because the reasons given really aren’t, kind of
don’t really reach that, you know. They’re not―in the
Court’s view, they seem to fall within CCP 231.7, and
would seem to require the Court to sustain the objection,
but likewise the answers given by Juror Number 15 that
were not given as a reasons, would justify the Court
overruling it. But―so that’s―that’s where the Court’s at.”
The court then asked the prosecutor to address the tentative ruling.
The prosecutor admitted that he simply “missed” PJ No. 15’s “shadow of a
doubt” comment. Nonetheless, he argued that in his comment that
PJ No. 15’s answers were “terse” he was referring to “the entire
communication,” specifically PJ No. 15’s statements about CSI and DNA
evidence. Yet, the court was not persuaded: “That’s the problem, you’ve not
brought up. You’ve got to create the record. You have to create the record.
Not the Court. So go ahead.”
Again, the prosecutor referred to his characterization of PJ No. 15’s
answers as terse: “I figured her answers kind of reflected that herself. And
when I used the word terse it was in that broader sense of her entire answers
to the Court.” The prosecutor also emphasized that PJ No. 15’s answers
indicated that she saw “people beneath her” and that her character was
concerning because she had “some sort of personality that she’s not going to
deliberate. She’s going to nitpick everything. She’s going not gel well with
14
the jurors.” The prosecutor ended by contending, “A superiority complex is
not race based. And that is a proper peremptory challenge.”
Defense counsel then noted that the reasons offered for striking
PJ No. 15 did not satisfy the requirements of section 231.7.
After some additional back and forth from the parties, the court
overruled defense counsel’s objection under section 231.7: “So an objectively
reasonable person was able to listen to her answers, I don’t believe would find
unconscious or implicit bias.” In doing so, the court explicitly relied on
PJ No. 15’s “shadow of a doubt” comment as well as her response to the CSI
and DNA evidence hypothetical. The court summarized its ruling as follows:
“So it appears to the Court that this juror in particular has
a higher burden of proof. She said that beyond a shadow of
a doubt. And―but I don’t―but I do need to make the record
clear. I don’t―didn’t find her to have a superiority complex,
if that’s what’s being argued, that somehow she was
superior to everyone else. That was not―I did not take her
words as being she has people serving. She referred to
those, her people as her team underneath her, as being
some sort of superiority complex over others. That these
people are somehow less human or less worthy because she
supervised them. I did not take that.
“Her terse demeanor was―she did―was brief and very
business like, so I don’t really find that to be the basis. But
I do believe that her answers regarding burden of proof and
having a higher burden being placed on the People, do show
a non-racial basis for the use of a peremptory challenge
that would not be suspect to an objectively reasonable
person of unconscious bias or purposeful discrimination.”
After the jury returned a verdict on the aggravating factors, the trial
court revisited its ruling on Barnes’s section 231.7 objection to the striking of
PJ No. 15. In doing so, the court noted that Alternate Juror Nos. 3 and 4
were “[B]lack female adult jurors.” The court then emphasized that it did not
15
believe the prosecutor was “feigning” his concern about PJ No. 15’s statement
that people worked underneath her. The court observed that the prosecutor
“seemed generally upset” and hypothesized that the prosecutor, being of
Korean ethnicity, might have had a different perspective than the court in
hearing PJ No. 15’s words. The court then reaffirmed its previous ruling to
Barnes’s objection under section 231.7.
C. Applicable Law
Section 231.7 prohibits the use of “a peremptory challenge to remove a
prospective juror on the basis of the prospective juror’s race, ethnicity,
gender, gender identity, sexual orientation, national origin, or religious
affiliation, or the perceived membership of the prospective juror in any of
those groups.” (§ 231.7, subd. (a).) If a party or the trial court objects to the
use of a peremptory challenge, “the party exercising the peremptory
challenge shall state the reasons the peremptory challenge has been
exercised.” (Id., subd. (c).) The trial court then “evaluate[s] the reasons given
to justify the peremptory challenge in light of the totality of the
circumstances. The court shall consider only the reasons actually given and
shall not speculate on, or assume the existence of, other possible justifications
for the use of the peremptory challenge.” (Id., subd. (d)(1).) Section 231.7
“contains two separate provisions (subds. (e) and (g)) describing
presumptively invalid reasons for the exercise of a peremptory challenge.
Each subdivision sets out a distinct process by which a court determines
whether a presumptively invalid reason can be absolved of that presumption.
(Id., subds. (e), (f), (g)(2).)” (People v. Ortiz (2023) 96 Cal.App.5th 768, 793.)
As relevant to this case, presumptively invalid reasons include: “The
prospective juror exhibited either a lack of rapport or problematic attitude,
body language, or demeanor.” (§ 231.7, subd. (g)(1)(B).)
16
Finally, under section 231.7, subdivision (d), reasons that are not
presumptively invalid are evaluated “in light of the totality of the
circumstances” to determine if “there is a substantial likelihood that an
objectively reasonable person[,]” who is aware that unconscious bias and
purposeful discrimination have resulted in the unfair exclusion of potential
jurors in California, would view membership or perceived membership in any
of the protected groups as a factor in the use of the peremptory challenge.
(§ 231.7, subd. (d)(1), (2)(A).)
On appeal, the overruling of an objection under section 231.7 is
reviewed de novo “with the trial court’s express factual findings reviewed for
substantial evidence.” (§ 231.7, subd. (j).) The appellate court is to consider
only those reasons actually given by the trial court and may “not speculate as
to or consider reasons that were not given to explain either the party’s use of
the peremptory challenge or the party’s failure to challenge similarly situated
jurors who are not members of the same cognizable group as the challenged
juror, regardless of whether the moving party made a comparative analysis
argument in the trial court.” (Ibid.) If the appellate court concludes the trial
court erred by overruling an objection, “that error shall be deemed
prejudicial, the judgment shall be reversed, and the case remanded for a new
trial.” (Ibid.)
D. Analysis
Here, Barnes’s primary argument is the trial court violated
section 231.7, subdivision (d)(1) when it overruled his objection to the
peremptory challenge of PJ No. 15 because the court did not only consider
17
“the reasons actually given” but instead, speculated about what other reasons
the prosecutor could have relied on to strike the juror. We agree.
After Barnes’s trial counsel objected to the prosecutor’s peremptory
challenge of PJ No. 15, the court allowed the prosecutor to state all his
reasons for striking the juror. At the conclusion of the prosecutor’s argument,
the court summarized the prosecutor’s reasons as follows: “[S]he said that
many people work underneath her. She was terse in her responses. She
made a statement that I don’t create the law, that was clarified that the
legislature decides the law. Based on . . . her comment about supervising
people underneath her she would not work well with jurors.” The prosecutor
agreed: “That’s right. And if she is eager to tell me I’m incorrect, she’s going
to be here to say that in the jury deliberation room.”
After the court took the matter under submission, he expressed
surprise to the parties the following day based on the prosecutor’s stated
reasons for striking PJ No. 15, noting “they weren’t the reasons . . . I thought
or expected a peremptory challenge to be exercised” against that potential
juror. The court then questioned whether he could consider a basis not stated
by the prosecutor to overrule Barnes’s objection. And the reason the court
asked the question was clear. The court viewed the prosecutor’s stated
reasons “to fall within [section] 231.7[ ] and would seem to require the court
to sustain the objection.” In other words, if the court only considered the
prosecutor’s articulated explanation, the court believed that Barnes’s
objection was well taken. However, if the court considered “the answers
given by Juror Number 15 that were not given as a reason,” “the Court
[would be justified] in overruling it.”
The court clearly took the latter approach. It explicitly rejected the
prosecutor’s stated reasons as justifying a peremptory challenge of PJ No. 15
18
and overruled the objection based on reasons the prosecutor never raised. In
doing so, the court clearly erred. (See § 231.7, subd. (d)(1).)
The People dedicate a single paragraph of their 100-page brief to
Barnes’s primary argument. To this end, they agree that the court erred
“under the statute” “to the extent the trial court considered the juror’s
isolated comment about holding the People to a higher ‘beyond a shadow of a
doubt’ standard of proof.” Nonetheless, the People claim, “in looking at the
totality of the circumstances as required under section 231.7,
subdivision (d)(1),” the court could appropriately consider PJ No. 15’s
“shadow of a doubt” comment “as part of the larger conversation that
exemplified that juror’s impulse to challenge the prosecutor on the law
instead of directly answering questions.” We disagree.
Below, the prosecutor raised two issues with PJ No. 15. First, he was
bothered by her use of the term “underneath” in describing the individuals
she managed: “There are 298 people underneath me.” “I do manage a team
underneath me.” Second, “her response to questions was terse.” Based on
these two concerns, the prosecutor argued that PJ No. 15 “would not work
well with other jurors.” Moreover, the prosecutor clearly was troubled by
PJ No. 15’s willingness to challenge him: “And if she is eager to tell me that
I’m incorrect, she’s going to be here to say that in the jury deliberation room.”
And the prosecutor represented to the trial court that he did not strike
PJ No. 15 because of “lack of rapport or demeanor, or the responses. It’s her
attitude that she sees people who work for her as underneath her.” (Italics
added.) Later, the prosecutor again emphasized he saw a problem with
PJ No. 15’s “character, this person’s personality that that shows that this
person will not get along with other jurors.” Indeed, the prosecutor concluded
19
his argument on Barnes’s section 231.7 objection by focusing on PJ No. 15’s
attitude: “A superiority complex is not race based.”
Further, the court appeared at least ostensibly concerned that the
prosecutor’s stated justifications implicated the presumptively invalid
reasons to strike a juror set forth in section 231.7, subdivision (g)(1)(B): “The
prospective juror exhibited either a lack of rapport or problematic attitude,
body language, or demeanor.” To wit, the court commented, “So that would
go along with terse responses, questions about deciding the law, supervising
people underneath her. So those would fit that category. Lack of rapport,
problematic attitude, body language, or demeanor. [¶] . . . It is the
subsection (B) that the Court has to look at and see if there is corroboration
for that.” In fact, the court repeated this same concern when providing its
tentative ruling, “So I’m giving a tentative decision, because the reasons
given really aren’t, kind of don’t really reach that, you know. They’re not―in
the Court’s view, they seem to fall within [section] 231.7, and would seem to
require the Court to sustain the objection[.]”
Despite the trial court’s stated concerns, now on appeal, the People
argue that both the reasons stated by the prosecutor below “indicated that
[PJ No. 15] would not follow the law” and that the prosecutor showed concern
with “the substance of the prospective juror’s answer, as opposed to the
prospective juror’s general attitude or demeanor.” Such an argument is not
supported by the record whatsoever. Indeed, the People do not cite to
anywhere in the record where the prosecutor argued that PJ No. 15 would
not follow the law. Nor could they. The prosecutor never made any such
statement. Moreover, the court stated that PJ No. 15 did not understand one
of the prosecutor’s questions and that she believed she was being told by the
judge to return a verdict of guilty. But after she understood the question, the
20
court noted that “she did say that she would follow the law, if it was proven,
if the proof was without a shadow of a doubt.” True, the court was troubled
by the potential juror’s “shadow of a doubt” comment, but the prosecutor
explicitly acknowledged he was not challenging her on that comment, and the
People concede as much here as well.
Additionally, we are not persuaded by the People’s assertion that the
prosecutor was concerned about the substance of PJ No. 15’s responses. The
prosecutor claimed that the potential juror was “terse” in her responses.
Terse means “using few words: devoid of superfluity.”5 The trial court
defined it as “brief, or using very few words.” It is not a word indicating a
problem with the substance of a response but the means by which the
response was given. In describing terse, the prosecutor defined it as “short.”
Subsequently, in elaborating about his use of the word “terse,” the prosecutor
explained: “So when I said her responses were terse, that seems to be the
entire communication. That it seems to have this attitude, not disparaging
this juror, but had this attitude of kind of knowing everything, and if she’s
willing to challenge the District Attorney, and correct me on what didn’t need
correcting, how much more is she going to do that with jurors who are
warehouse workers, FedEx delivery drivers, Home Depot workers?
Especially someone who has the attitude, who says that people are
underneath her.” Clearly, the prosecutor was focusing on PJ No. 15’s
attitude. He was not challenging the substance of what she said. Rather, he
was troubled by her attitude: “So when I said terse, and I apologize if I’m not
using the correct semantics, I mean abrupt, has this ‘I know everything’
5 (Merriam-Webster Dict. Online (2024) <https://merriam-
webster.com/dictionary/terse> [as of December 18, 2024], archived at
<https://perma.cc/MT8L-47QB >]).
21
attitude.” The prosecutor obviously was bothered that this prospective juror
had the audacity to question him. Indeed, he emphasized this trepidation at
least twice during his argument on Barnes’s section 231.7 objection.
Thus, the record makes clear that the prosecutor’s concern with the
terseness of PJ No. 15 involved the way she responded to questions, not the
substance of her answers. Put differently, the record clearly indicates that
the prosecutor was primarily, if not entirely, concerned with PJ No. 15’s
attitude.
Similarly, we struggle to categorize the prosecutor’s complaint about
PJ No. 15’s use of the word “underneath” as relating to the substance of her
answers. The prosecutor plainly was offended by her use of that word, and
based upon her use of the word “underneath” twice during voir dire, argued
that it proved she had a superiority complex. Again, it appears that the
prosecutor was disquieted by PJ No. 15’s attitude.
Therefore, based on this record, we agree with the trial court’s initial
response to the prosecutor’s stated reasons for challenging PJ No. 15—they
fall under section 231.7, subdivision (g)(1)(B). Consequently, the subject
reasons are “presumptively invalid unless the trial court is able to confirm
that the asserted behavior occurred, based on the court’s own observations or
the observations of counsel for the objecting party. Even with that
confirmation, counsel offering the reason shall explain why the asserted
demeanor, behavior, or manner in which the prospective juror answered
questions matters to the case to be tried.” (See § 231.7, subd. (g)(2).)
Additionally, we have interpreted the pertinent language in
section 231.7, subdivision (g) as follows:
“This language indicates that the reasons identified in
section 231.7, subdivision (g)(1) start out as presumptively
invalid and that the only way to rebut the presumption of
22
invalidity is by applying the statutorily prescribed two-step
process of (1) confirmation of the behavior by the trial
court, and (2) explanation by counsel of why the behavior
matters to the case. If the presumption of invalidity for a
particular reason identified by counsel is not rebutted
through the two-step procedure set forth in
subdivision (g)(2) of section 231.7, that reason must be
treated as conclusively invalid. In other words, the trial
court must treat as conclusive the presumption that the
reason identified by counsel was actually based on “race,
ethnicity, gender, gender identity, sexual orientation,
national origin, or religious affiliation,” or perceived
membership in any such group, as prohibited by
section 231.7, subdivision (a).” (People v. Caporrotta (2024)
103 Cal.App.5th 874, 890–891 (Caporrotta).)
Yet, in overruling Barnes’s objection, the court did not utilize the
procedures outlined in section 231.7, subdivision (g)(2). Instead, the court
explicitly stated that it did not find PJ No. 15 to have a “superiority complex”
based on her comment that people worked “underneath her.” Also, the court
specifically rejected the prosecutor’s comments that the prospective juror was
“terse” as a valid basis to strike her. In fact, the court noted that other
prospective jurors responded in a similar manner: “Many people gave short
answers and short responses.” Thus, the court did not confirm the behavior
identified by the prosecutor and plainly disregarded the prosecutor’s stated
reasons for exercising a peremptory challenge on PJ No. 15 as being valid. At
that point, the court should have sustained Barnes’s objection. (See
Caporrotta, supra, 103 Cal.App.5th at pp. 890–891.)
However, the court appears to have proceeded to perform a further
analysis, based on the totality of the circumstances approach described in
subdivision (d) of section 231.7. In doing so, the court did not rely on the
reasons the prosecutor stated but found, based on its review of the transcript
and its notes, that PJ No. 15 could be stricken on race neutral grounds
23
because she would hold the prosecutor to a higher burden of proof than
beyond a reasonable doubt.
The trial court’s approach was improper for two reasons. First, having
determined that the prosecutor’s reasons for striking the prospective juror
triggered subdivision (g)(1)(B) of section 231.7, “the totality of the
circumstances analysis in section 231.7, subdivision (d) plays no role in
determining whether a presumption of invalidity arising under
subdivision (g) has been rebutted.” (Caporrotta, supra, 103 Cal.App.5th at
p. 891.) Thus, as soon as the court could not confirm the behavior as
identified by the prosecutor, it should have sustained the objection. (Ibid.)
Second, even if it were appropriate to consider the totality of the
circumstances as set forth in subdivision (d), the court was limited to
considering “only the reasons actually given” by the prosecutor in striking
PJ No. 15. (§ 231.7, subd. (d)(1).) The court is not permitted to “speculate on,
or assume the existence of, other possible justifications for the use of the
peremptory challenge.” (Ibid.) Here, it seems as if the court did not believe it
was speculating because it found the justification for striking the prospective
juror in the record. But the statute’s prohibition on speculation is not
satisfied simply because a court can find a possible reason in the record. The
speculation the subdivision forbids is conjecture regarding what the
prosecutor might have relied on. In the instant action, the prosecutor
explicitly stated that he did not consider PJ No. 15’s “shadow of a doubt”
comment as a basis to strike her. Nonetheless, that is the very reason on
which the court relied to overrule Barnes’s objection. This is precisely the
type of speculation subdivision (d)(1) prohibits.
For all the reasons discussed above, we conclude the trial court erred in
overruling Barnes’s objection under section 231.7. As mandated by statute,
24
the judgment as to the first phase of the trial (concerning counts 1 through 9)
is reversed, and the case will be remanded for a new trial. (See § 231.7,
subd. (j).)
II.
THE GANG OFFENSE AND ENHANCEMENTS
A. Barnes’s Contentions
Barnes asserts the trial court prejudicially erred in failing to instruct
the jury sua sponte under CALCRIM No. 332. In addition, he contends
substantial evidence does not support the jury’s finding that members of
Lime Hood Piru (LHP) engaged in a pattern of criminal street activity as
defined by Penal Code section 186.22, subdivision (f).6 Specifically, Barnes
insists the evidence offered was insufficient to prove that one of the predicate
offenses offered by the prosecutor (the murder of P.M.) commonly benefited
LHP.7 The People concede the merit of both of Barnes’s arguments but
6 There was evidence presented at the second phase of the trial that
Barnes was a member of LHP.
7 Relying on People v. Delgado (2022) 74 Cal.App.5th 1067, Barnes also
argued in his opening brief that the evidence offered during the gang offense
and enhancement trial was insufficient to prove that members of LHP
collectively engaged in a pattern of criminal street gang activity. However,
after he submitted the opening brief, our high court overruled Delgado on
that point. (See People v. Clark (2024) 15 Cal.5th 743, 764, fn. 8.) The people
point out that Clark overruled Delgado in the respondent’s brief, and Barnes
did not address the issue on reply. Thus, we view this argument as
abandoned. However, even if we were to address it, we would follow Clark
(see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and
conclude Barnes’s argument lacks merit.
25
maintain that the court’s instructional error is moot because the substantive
gang offense and true findings on the enhancement must be reversed.
Although the parties agree about the errors the trial court committed,
they disagree regarding whether we should remand this matter back to the
trial court and allow the prosecutor to retry the gang related offense and
enhancements. Because we conclude that substantial evidence does not
support the jury’s verdict and findings as to the offense and enhancements
under Penal Code section 186.22, double jeopardy prohibits retrial on those
issues.
B. Relevant Law
Penal Code section 186.22 prohibits unlawful participation in a
criminal street gang, as set forth in subdivision (a), and includes sentencing
enhancement provisions, which are found in subdivision (b). The statute also
has alternate penalty provisions, Penal Code section 186.22,
subdivisions (b)(4), (5), and (d), the latter of which allows for punishment of
up to three years in prison if the defendant is “convicted of a gang-related
misdemeanor offense.” (People v. Briceno (2004) 34 Cal.4th 451, 460, fn. 7.)
A criminal street gang is “an ongoing, organized association or group of
three or more persons, whether formal or informal, having as one of its
primary activities the commission of one or more of the criminal acts
enumerated in subdivision (e), having a common name or common identifying
sign or symbol, and whose members collectively engage in, or have engaged
in, a pattern of criminal gang activity.” (Pen. Code, § 186.22, subd. (f).)
A “ ‘pattern of criminal gang activity’ means the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of” two or more offenses listed in Penal
Code section 186.22, subdivision (e), if such conduct occurred within certain
26
timeframes and under particular circumstances specified therein. (Id.,
subd. (e)(1).) This is commonly known as the “predicate offenses”
requirement. (People v. Navarro (2021) 12 Cal.5th 285, 311.)
“The elements of the gang participation offense in [Penal Code]
section 186.22[,] [subdivision] (a) are: First, active participation in a criminal
street gang, in the sense of participation that is more than nominal or
passive; second, knowledge that the gang’s members engage in or have
engaged in a pattern of criminal gang activity; and third, the willful
promotion, furtherance, or assistance in any felonious criminal conduct by
members of that gang.” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.)
The enhancements and alternate penalty provisions apply only to gang-
related crimes, meaning offenses “committed for the benefit of, at the
direction of, or in association with a criminal street gang.” (Pen. Code,
§ 186.22, subds. (b), (d); accord, People v. Livingston (2012) 53 Cal.4th 1145,
1170.) The enhancements and alternate penalties further require “the
specific intent to promote, further, or assist in criminal conduct by gang
members.” (Pen. Code, § 186.22, subds. (b)(1), (4), (d).)
By enactment of Assembly Bill No. 333 (Assembly Bill 333), Penal Code
section 186.22 has new requirements for establishing liability under
subdivisions (a), (b), and (d). (Stats. 2021, ch. 699, § 3.) As of January 1,
2022, predicate offenses must be shown to have “commonly benefited” the
alleged gang, and the common benefit must have been “more than
reputational.” (Pen Code, § 186.22, subd. (e)(1).) Currently charged offenses
no longer qualify (id., subd. (e)(2)), and at least one predicate offense must
have been committed “within three years of the date the current offense is
alleged to have been committed . . . .” (id., subd. (e)(1)). Among other
additional changes, the terms “benefit,” “promote,” “further,” and “assist” are
27
now defined to mean providing “a common benefit to members of a gang
where the common benefit is more than reputational.” (Id., subd. (g).)
Assembly Bill 333 also added Penal Code section 1109. (Stats. 2021,
ch. 699, § 5.) The new statute provides:
“(a) If requested by the defense, a case in which a gang
enhancement is charged under subdivision (b) or (d) of
[Penal Code] [s]ection 186.22 shall be tried in separate
phases as follows:
“(1) The question of the defendant’s guilt of the underlying
offense shall be first determined.
“(2) If the defendant is found guilty of the underlying
offense and there is an allegation of an enhancement
under subdivision (b) or (d) of [Penal Code]
[s]ection 186.22, there shall be further proceedings to the
trier of fact on the question of the truth of the
enhancement. Allegations that the underlying offense
was committed for the benefit of, at the direction of, or in
association with, a criminal street gang and that the
underlying offense was committed with the specific intent
to promote, further, or assist in criminal conduct by gang
members shall be proved by direct or circumstantial
evidence.
“(b) If a defendant is charged with a violation of
subdivision (a) of [Penal Code] [s]ection 186.22, this count
shall be tried separately from all other counts that do not
otherwise require gang evidence as an element of the crime.
This charge may be tried in the same proceeding with an
allegation of an enhancement under subdivision (b) or (d) of
[Penal Code] [s]ection 186.22.” (Pen. Code, § 1109.)8
8 The second phase of the trial relating to Barnes’s participation in a
criminal street gang as well as the alleged gang enhancements was tried
separately from counts 1 through 9 pursuant to Penal Code section 1109.
28
C. Background
Barnes’s substantial evidence challenge to his conviction for
participating in criminal street gang as well as the true findings on the gang
enhancements is aimed at the prosecution’s evidence of one of the required
predicate acts. Specifically, Barnes maintains that substantial evidence does
not support that the murder of P.M. “commonly benefitted” LHP. Regarding
P.M.’s murder, the prosecution offered the testimony of Rialto Police Corporal
David Padilla and Frank Harris, a deputy detective with the San
Bernardino’s Sherriff’s Office.
On July 8, 2014, Padilla investigated the killing of P.M. Ultimately,
Shazad Khan was arrested for, and later convicted of, murdering P.M. At the
time of his arrest, Khan had a tattoo of the letters “LHP” on his forearm. He
lived with his girlfriend. Padilla searched Khan’s girlfriend’s house and
found a green notebook. The notebook contained rap lyrics and red colored
drawings depicting Rosecrans Street in Los Angeles. The notebook also
contained drawings of a red colored figure that looked like Khan. The figure
had “LHP” tattooed on its forearm, and it appeared to be shooting at another
blue colored figure.
The prosecution also tried to elicit testimony from Padilla regarding his
interviews with a “witness victim” of the P.M. murder. Apparently, it was
the prosecution’s intent for Padilla to provide the “general circumstances” of
the offense through the witness’s statements to him. However, out of the
presence of the jury at an Evidence Code section 402 hearing, the court ruled
that Padilla could not testify regarding the witness’s statements because it
constituted case specific hearsay. The court also stated that the witness’s
statements did not qualify as spontaneous statements under Evidence Code
section 1240. Essentially, the court ruled that unless Padilla personally
29
observed the event, he could not testify about the background evidence
surrounding the predicate offense of P.M.’s murder. Accordingly, the
prosecution did not offer any additional information about P.M.’s murder
through Padilla.
Instead, the prosecution tried to offer additional information about the
murder through Harris, the prosecutor’s gang expert. The prosecutor asked
Harris whether, “based on your background, training, and experience, the
materials you reviewed as an expert, do you have an opinion as to whether
the murder committed by Shazad Khan benefited—commonly benefited the
gang?” Harris answered in the affirmative that it did, “[b]y taking down a
rival.”
Barnes’s trial counsel objected that the response “[a]ssumes facts not in
evidence. We didn’t hear any evidence that the victim . . . was a member of
any rival gang.” The court responded that “he can testify to what’s been
presented as evidence in this case. He can rely on the police reports and
things and give his opinion. But bringing in details from the police reports,
that’s sustained.” The court thus admitted the first part of the detective’s
answer—that the crime benefited the gang—but sustained the objection as to
the reason. It struck that portion of Harris’s answer.
The prosecutor then asked, “[b]ased on your review of the reports,
speakings [sic] with investigating officers, do you have an opinion as to what
benefit Khan’s murder had for the gang?” Harris answered, “The opinion is
that the crime of murder was retaliation.”
Defense counsel objected and asked the court to strike Harris’s opinion
because “we didn’t hear any evidence from . . . Padilla that the crime was
committed for retaliation. If he’s relying on hearsay statements.” The
30
prosecutor responded, “There’s no case-specific information submitted to the
jury.”
The court overruled the objection: “It’s opinion testimony. Overruled.”
D. Analysis
Barnes argues that substantial evidence did not establish that the
predicate offense of murdering P.M. “commonly benefited” LHP. Specifically,
he asserts that Harris’s testimony that Khan murdered P.M. for retaliation
could have only been based on Harris’s review of the various police reports
and what he was told from other members of law enforcement. Barnes
further notes that Harris never told the jury what those reports or law
enforcement personnel said.9 Thus, Harris’s opinion lacked sufficient
foundation and could not constitute substantial evidence.
An expert witness may, on direct examination, provide the reasons for
an opinion as well as the information upon which it is based, even if that
information is inadmissible. (Evid. Code, §§ 801, subd. (b), 802.) Moreover,
expert opinion can support a gang enhancement under Penal Code
section 186.22, subdivision (b)(1). (People v. Vang (2011) 52 Cal.4th 1038,
1048.)
In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California
Supreme Court held that case-specific statements by a gang expert
concerning a defendant’s gang membership constitute inadmissible hearsay
under California law and testimonial hearsay under Crawford v. Washington
9 Barnes also argues that Harris could not have testified at trial as to the
substance of the police reports he reviewed or the conversations he had to
form his opinion because such evidence would have been inadmissible
hearsay.
31
(2004) 541 U.S. 36 (Crawford).10 (Sanchez, at p. 670.) “Case-specific facts
are those relating to the particular events and participants alleged to have
been involved in the case being tried.” (Id. at p. 676.) Our high court
explained that, “[i]f an expert testifies to case-specific out-of-court statements
to explain the bases for his opinion, those statements are necessarily
considered by the jury for their truth, thus rendering them hearsay. Like any
other hearsay evidence, it must be properly admitted through an applicable
hearsay exception. Alternatively, the evidence can be admitted through an
appropriate witness and the expert may assume its truth in a properly
worded hypothetical question in the traditional manner.” (Id. at p. 684,
fn. omitted.)
Therefore, the court considered “the degree to which the Crawford rule
limits an expert witness from relating case-specific hearsay content in
explaining the basis for his opinion.” (Sanchez, supra, 63 Cal.4th at p. 670.)
It also clarified “the proper application of Evidence Code sections 801
and 802, relating to the scope of expert testimony.” (Ibid.) The Sanchez rule
aimed to curb any risk that expert witnesses would be used as “ ‘conduits to
transmit inadmissible hearsay that does not otherwise fall under a statutory
exception as assertions of fact to the jury.’ ” (People v. Valencia (2021)
11 Cal.5th 818, 836 (Valencia).)
“ ‘Since Sanchez, California appellate courts have held that expert
testimony about “the general attributes of the . . . gang, such as the gang’s
10 In Crawford, the United States Supreme Court held that the admission
of testimonial hearsay violates the confrontation clause unless the declarant
is unavailable for trial and the defendant had a prior opportunity to cross-
examine the declarant. (Crawford, supra, 541 U.S. at pp. 53–54, 59.)
However, the court further stated that the confrontation clause does not
prohibit the admission of testimonial statements for purposes other than
establishing the truth of the matter asserted. (Id. at p. 59, fn. 9.)
32
culture, the importance placed on reputation and guns, . . . the gang’s rivals
and claimed turf, the use of monikers and identifying symbols, and the like,
[are] permissible as expert background testimony.” ’ [Citation.] A gang
expert may testify about the history and founding of a particular gang, even
if the sources of the information are hearsay.” (People v. Garcia (2020)
46 Cal.App.5th 123, 167 (Garcia).) However, “an expert may not relate case-
specific testimonial hearsay, such as information contained in police reports
authored by other officers. [Citations.] [¶] A gang expert who has personal
knowledge of the facts and is subject to cross-examination at trial may testify
to facts contained in documents that would otherwise be considered
testimonial hearsay, such as field identification cards. [Citation.] Testimony
by an officer about personal observations made by that officer, such as of an
individual’s tattoos, location, companions, or clothing, are not hearsay and
thus do not run afoul of the confrontation clause.” (Ibid.)
In the instant matter, the People attempted to offer evidence about
Khan’s murder of P.M. through Padilla’s testimony. However, the court did
not allow Padilla to testify about his conversations with an alleged witness to
the murder and what that witness had said about P.M.’s murder. Padilla did
not personally witness the murder or observe any interactions between Khan
and P.M. Thus, Padilla did not offer any essential explanation of the
circumstances of P.M.’s murder that could establish that it occurred for a
common benefit of LHP. (See Garcia, supra, 46 Cal.App.5th at p. 167.)
Because Padilla could not offer evidence to establish that P.M. was
murdered for the common benefit of LHP, the prosecutor attempted to have
Harris testify as to that necessary fact. However, the trial court sustained
defense counsel’s objection to Harris’s testimony that Khan’s murder of P.M.
benefited LHP because it involved “taking down a rival.” The parties agree
33
that the ruling was proper because evidence of the details underlying the
crime, namely, that Khan and P.M. were rivals was not admitted at trial.
“Without independent admissible evidence of the particulars of the predicate
offenses, the expert’s hearsay testimony cannot be used to supply them. In
the absence of any additional foundation, the facts of an individual case are
not the kind of general information on which experts can be said to agree.”
(Valencia, supra, 11 Cal.5th at p. 838.)
Although the court properly excluded the admission of case-specific
testimonial hearsay through Padilla, it then erred by admitting Harris’s
testimony that “[t]he opinion is that the crime of murder was retaliation.”
As the People point out, this testimony can be viewed two ways: Retaliation
could be a factual matter that constitutes case-specific hearsay or retaliation
is a matter of opinion or characterization that requires a factual foundation.
In viewing “retaliation” as a case-specific fact, its admission would be
error under Sanchez. The trial court had previously ruled that testimony by
Padilla, based on what a witness had told him, that “[t]here was this fight
earlier” and the murder was “a retaliation” constituted inadmissible hearsay.
Thus, admitting Harris’s testimony recounting that the crime was retaliation
could be interpreted as error under Sanchez because Harris testified to case-
specific hearsay—Padilla’s description of the murder as retaliation—that was
not independently proven by competent evidence. (Sanchez, supra,
63 Cal.4th at p. 686.)
Although we agree that the admission of Harris’s opinion that the
murder of P.M. was committed for retaliation could have been Sanchez error,
on the record before us, it appears that it was not. Three times the
prosecutor sought to have a witness testify as to case-specific hearsay
describing the circumstances of P.M.’s murder. Three times the court
34
sustained defense counsel’s objections to that evidence. Thus, the record
clearly shows the trial court understood the dictates of Sanchez. And the
court only overruled defense counsel’s objection regarding Harris’s retaliation
opinion after the prosecutor represented that Harris was not offering case-
specific hearsay. Indeed, in overruling the objection, the court characterized
Harris’s testimony as “opinion testimony.”
Describing Harris’s “retaliation” testimony as expert opinion testimony,
the court still erred in admitting it because it lacked foundation. Our
colleagues in Division Three of this court have addressed the issue of what
constitutes a sufficient foundation for an expert’s opinion regarding the
primary activities element of a criminal street gang, which is informative
here. In In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.), the
juvenile defendant was charged with vandalism based on gang-related
tagging activities. (Id. at p. 609.) There, the gang expert testified to the
primary activities of a particular gang. (Id. at pp. 611–612.) He stated that
“he ‘kn[e]w’ that the gang had been involved in certain crimes. No specifics
were elicited as to the circumstances of these crimes, or where, when, or how
[the expert] had obtained the information.” (Ibid.) The appellate court
determined that the expert’s testimony lacked adequate foundation. The
court reasoned there was no way to establish the reliability of the expert’s
testimony “because information establishing reliability was never elicited
from him at trial.” (Id. at p. 612.)
Like the expert in Alexander L., Harris did not provide a foundation for
his testimony that Khan committed murder for the purpose of retaliation.
Padilla’s testimony also did not provide details to support the expert opinion.
No other evidence presented to the jury established that LHP commonly
benefited from P.M.’s murder; therefore, that offense could not serve as a
35
predicate offense establishing LHP as a criminal street gang. With only
evidence of one predicate offense, insufficient evidence supported the jury’s
finding that LHP engaged in a pattern of criminal gang activity. (Pen. Code,
§ 186.22, subd. (e); cf. People v. Jennings (2010) 50 Cal.4th 616, 638 [“In
reviewing a claim for sufficiency of the evidence, we must determine whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime . . . beyond a reasonable doubt”].)
Although the parties agree that Harris’s testimony was insufficient to
establish one of the necessary predicate offenses and the verdict and findings
of the second trial must be reversed, they disagree about whether the
prosecutor can retry Barnes for the gang offense and gang enhancements
after remand. The People urge that reversal should not foreclose retrial on
the gang offense and gang enhancements because Barnes’s “claim is rooted in
evidentiary error, which does not trigger double jeopardy.” In their view, had
the trial court sustained defense counsel’s objection to Harris’s testimony, the
prosecution could have attempted to prove that P.M. was murdered for the
common benefit of LHP another way. In this sense, the People appear to be
arguing that it would be unfair not to allow the prosecution to retry the case
because the prosecution reasonably relied on the trial court’s ruling and
believed it had offered sufficient evidence to satisfy its burden of proof.
Perhaps on a different record, the People’s argument would be more
persuasive. Here, the People wanted Padilla to testify about statements
made by a witness with personal knowledge of the circumstances
surrounding P.M.’s murder. Barnes’s trial counsel objected. The court held
an Evidence Code section 402 hearing to explore the admissibility of Padilla’s
testimony about the witness’s statements. At that hearing, Padilla testified
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about the substance of the witness’s statement to him describing the murder.
After hearing the testimony, the court and prosecutor engaged in the
following exchange:
“[The Court:] So his―corporal Padilla’s relying and relating
this general overview of the predicate offense, which he
may probably, I’m suspecting you have a certified record of
conviction. But to tell, oh, this is what happened, this is
what this case is about, this conviction, this is what it’s
about. There was this fight earlier, this individual tries to
get them to make it up, come out. It’s retaliation for the
shooting. And it’s not a spontaneous statement when it’s
referred to as the first interview at the hospital. And the
second interview occurs at the police, where really the most
information is given. How is that not case-specific hearsay?
“[Prosecutor]: After reading Garcia, your Honor, I believe
it’s clarified that it’s case specific hearsay―”
The prosecutor subsequently argued that the witness’s statements to
Padilla were admissible as spontaneous statements under Evidence Code
section 1240. The court disagreed.
The prosecutor did not give up. He filed a brief again arguing that the
witness’s statements to Padilla were admissible as spontaneous statements
under Evidence Code section 1240. The court allowed the prosecutor to argue
the point again but came to the same conclusion: The witness’s statements
were case-specific hearsay and not admissible as spontaneous statements.
At that point, the prosecutor was aware that if he wanted to get
evidence of the circumstances surrounding the murder of P.M. admitted at
trial, he had to take a different route. The substance of the subject witness’s
statements were case-specific hearsay and inadmissible. The court was
adamant on that point.
The prosecutor’s apparent solution to this evidentiary obstacle is equal
parts surprising and puzzling. He simply asked another witness, one who
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like Padilla lacked the requisite personal knowledge, to testify as to the
circumstances of P.M.’s murder. That witness was Harris.
The prosecutor asked Harris, based on his background, training,
experience, and materials he reviewed, whether P.M.’s murder commonly
benefited LHP. Harris answered in the affirmative, adding that it benefitted
the gang “[b]y taking down a rival.” The trial court sustained a defense
objection to Harris’s testimony, noting that Harris could not testify as to the
details of the murder based on his review of police reports. Therefore, the
court struck Harris’s testimony that Khan murdered P.M. to “take down a
rival” but allowed Harris’s naked opinion that the murder benefitted LHP to
stand.
Now, at this juncture, the prosecutor had tried three times to have two
witnesses testify as to the circumstances of P.M.’s murder by offering case-
specific hearsay. Three times the court had sustained the objection to such
evidence. Not deterred, the prosecutor once again asked Harris, based on his
review of reports and talking to law enforcement, how P.M.’s murder
benefitted LHP, to which Harris responded that the purpose of the murder
was retaliation. Not surprisingly, defense counsel objected that there was no
evidence before the jury that P.M.’s murder was committed for retaliation
and emphasized that Harris’s testimony was inadmissible if he was relying
on hearsay. The prosecutor then responded, “There’s no case-specific
information submitted to the jury.” Therefore, the prosecutor represented to
the trial court that Harris was not offering case-specific hearsay, like he
previously tried to do, but had some other source of information (perhaps,
personal knowledge) on which he could base his opinion. The court overruled
the objection, noting “It’s opinion testimony.”
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Yet, what is lacking in the record is any suggestion whatsoever that
Harris had personal knowledge that Khan murdered P.M. for retaliation.
Nor is there any indication in the record that there was admissible evidence
before the jury on which Harris could rely to form his opinion that Kahn
murdered P.M. for retaliation.
Against this backdrop, we struggle to accept the People’s framing of the
issue before us as one of an evidentiary nature that would allow retrial on the
gang offense and enhancements. At the Evidence Code section 402 hearing,
the court clearly informed the prosecution twice that it would not be
permitted to offer case-specific hearsay through Padilla. In response, the
prosecutor all but flaunted the court’s ruling by trying to offer the same
prohibited evidence through Harris. Rebuffed by the court during his first
attempt with Harris, the prosecutor again asked Harris to provide the
inadmissible evidence but claimed it was not case-specific hearsay. The court
then, as the People now concede, prejudicially erred in admitting that
evidence based on the court’s ruling that Harris was simply offering “opinion
testimony.” The court’s ruling, in turn, appears to be based on the
prosecution’s explanation that Harris was not offering case-specific hearsay
as part of his opinion.
Consequently, it borders on farcical for the People to now argue that
the court’s ruling somehow prevented the prosecutor from offering admissible
evidence to establish the subject predicate act. The prosecutor was given
ample opportunity to offer admissible evidence. The prosecutor knew the
court was not going to admit case-specific hearsay. The prosecutor tried to
get that evidence admitted through Harris anyway. When the court would
not permit such an approach, the prosecutor represented that Harris was not
offering case-specific hearsay, implying that Harris had some admissible
39
basis for his opinion. It is clear he did not. The prosecution had its
opportunity to establish Khan murdered P.M. for the benefit of LHP and
failed to provide sufficient evidence of that necessary fact. It cannot now
benefit from the court’s error in admitting the prosecution’s evidence, the
very evidence the prosecutor represented was proper opinion and did not
constitute case-specific hearsay. In other words, the court’s erroneous
overruling of defense counsel’s objection does not provide the prosecution
with yet another opportunity to prove the required predicate act. It had its
opportunity. It offered its best evidence. And it is undisputed that the
evidence the prosecution offered lacked the necessary foundation. There was
no basis offered regarding how Harris knew that Khan killed P.M. for
retaliation. Hence, the evidence was insufficient as a matter of law. (See
Alexander L., supra, 149 Cal.App.4th at p. 612.)
“Unlike a reversal for trial error, which ‘does not constitute a decision
to the effect that the government has failed to prove its case’ [citation], a
reversal based on evidentiary insufficiency ‘means that the government’s case
was so lacking that it should not have been submitted to the jury. Since we
necessarily afford absolute finality to a jury’s verdict of acquittal—no matter
how erroneous its decision—it is difficult to conceive how society has any
greater interest in retrying a defendant when, on review, it is decided as a
matter of law that the jury could not properly have returned a verdict of
guilty.’ ” (People v. Seel (2004) 34 Cal.4th 535, 544; see id. at p. 550 [where
appellate court found insufficient evidence of deliberation or premeditation in
attempted murder, the double jeopardy clause precluded retrial of that
allegation].) Further, double jeopardy principles preclude retrial when the
evidence is insufficient, even if it does not preclude retrial when evidentiary
errors are found. (United States v. DiFrancesco (1980) 449 U.S. 117, 131;
40
Lockhart v. Nelson (1988) 488 U.S. 33, 39; Burks v. United States (1978)
437 U.S. 1, 18; see People v. Eroshevich (2014) 60 Cal.4th 583, 591 [“the
defendant may not be retried if the judgment is reversed because, as a matter
of law, the evidence was insufficient to support a conviction”].)
The jury’s verdict and findings regarding the gang offense and
allegations must be reversed based on a lack of substantial evidence. The
prosecution is not permitted to retry Barnes as to this offense or these
enhancements.11
DISPOSITION
The judgment is reversed, and the matter remanded to the superior
court for further proceedings consistent with this opinion. The People may
retry Barnes as to counts 1 through 9 only. The People may not retry Barnes
as to count 10 or any of the gang related enhancements, even if those
enhancements relate to counts 1 through 9.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
11 Because we are reversing the judgment in its entirety, we do not need
to reach Barnes’s argument that the court prejudicially erred by failing to
provide CALCRIM No. 332.
41