The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KARL HOLMES, HERBERT McCLAIN and LORENZO
NEWBORN,
Defendants and Appellants.
S058734
Los Angeles County Superior Court
BA092268
January 31, 2022
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Groban, Jenkins,
and O’Rourke* concurred.
Justice Kruger filed a concurring opinion.
Justice Liu filed a dissenting opinion.
*
Associate Justice of the Court of Appeal, Fourth Appellate
District, Division One, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. HOLMES, McCLAIN and NEWBORN
S058734
Opinion of the Court by Corrigan, J.
On Halloween night in 1993, a group of young teenagers
walking home from a party were mistaken for gang members
and became the target of gunfire. Three were killed. Defendants
Karl Holmes, Herbert McClain, and Lorenzo Newborn1 were
each convicted of three counts of murder, five counts of
attempted murder, and one count of conspiracy to commit
murder.2 Special circumstances for lying in wait and multiple
murder were found true as to each murder count.3 The jury
found that Holmes was armed with a firearm in committing the
offenses4 but found firearm allegations not true as to the other
defendants. McClain was convicted of an additional attempted
murder, with personal use of a firearm, based on an earlier
incident.5
After the jury failed to reach a penalty verdict, that phase
1
Two codefendants originally included in the charges,
Aurelius Bailey and Solomon Bowen, were tried separately and
are not parties to this appeal.
2
Penal Code sections 187, subdivision (a), 664, and 182,
subdivision (a). Further undesignated statutory references are
to the Penal Code.
3
Section 190.2, subdivision (a)(3) and (15).
4
Section 12022, subdivision (a)(1).
5
Sections 187, subdivision (a), 664, and 12022.5,
subdivision (a).
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Opinion of the Court by Corrigan, J.
was retried, and death verdicts were returned against all
defendants. In addition, the court imposed life sentences on all
attempted murder counts, 25-year-to-life sentences on the
conspiracy counts, and five-year sentences on the firearm
enhancements. 6 We affirm the judgment in its entirety.
I. BACKGROUND
A. Guilt Phase
1. October 28 Attempted Murder of Robert Price
(McClain Only)
McClain was a member of the Bloods gang, P-9. Robert
Price was a member of the rival gang, Raymond Avenue Crips.
On October 28, 1993, McClain encountered Price, as he left the
Community Arms apartment complex. The men had seen each
other before but never spoken. McClain asked Price for a
cigarette. When Price gave him one, McClain responded, “Thank
you, Blood,” then shot Price in the face with a .380-caliber
handgun. As Price tried to flee, McClain fired several shots,
hitting Price twice in the back.
Price survived and was interviewed at the hospital where
he refused to identify his assailant. He later identified McClain
from a six-person photo lineup and again during both grand jury
and trial testimony. Although warned by McClain not to testify,
Price did so in exchange for a promise to relocate his family.
6
All of these sentences were ordered to run consecutively
except that the conspiracy sentences were stayed pursuant to
section 654.
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2. October 31 Shootings
a. Shooting of Fernando Hodges and Hospital
Gathering
Three evenings later, on October 31, 1993, P-9 gang
member Fernando Hodges was shot at the Community Arms
basketball court, and taken to Huntington Memorial Hospital,
where he died. Police believed one of the Raymond Avenue Crips
was responsible.
Holmes and Solomon Bowen joined a large crowd of
Hodges’s family and friends at the hospital. Around 20 to 30
people attired in hooded sweatshirts and baggy clothing
gathered outside the emergency room but did not enter the
hospital. A hospital security officer believed they were gang
members. After an older man at the center of the group seemed
to give “some direction or guidance, possibly orders,” the group
left.
b. Activities Before the Wilson Street Shootings
After Bowen left the hospital, he and Newborn went to
Willie McFee’s house. They were armed and looking for
Raymond Avenue Crips (Crips) gang member Dion Nelson,
known as “Crazy D.” Newborn cried and said his close friend,
Hodges, had been killed. McFee declined to say where Crazy D
lived. Newborn and Bowen left, joining several men running
toward some railroad tracks. McFee called Crazy D to warn him.
Less than five minutes later, McFee heard multiple
gunshots from near the tracks. A second series of gunshots,
apparently from a different weapon, came from near Crazy D’s
house. Shots were also fired toward McFee’s home. A bullet
struck his air conditioning unit and two shell casings were found
nearby.
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c. Shootings on Wilson Street
Earlier that night, 14-year-old Reggie Crawford, 13-year-
old Edgar Evans, and 13-year-old Stephen Coats attended a
Halloween birthday party in Pasadena. Around 10:00 p.m., they
left with Coats’s brother, Kenneth, and seven other boys.7 As
they walked to the Coats home, a car carrying four or five
Hispanic men sped by and turned from North Wilson Street
(hereafter Wilson Street) onto Villa. Immediately afterward,
four or five cars “packed full” of Black men drove down Villa
toward Wilson Street. These men displayed P-9 gang signs and
swerved near the curb as they passed by. One witness said three
of these cars were dark-colored compacts, and another recalled
that one was tan or grey. Holmes owned a grey Ford Tempo.
About three minutes later, three boys left the group of
departing party goers. Crawford, Evans, and the Coats brothers
continued walking down Wilson Street with Lawrence A., Lloyd
S., A.A., and A.P. As they walked, Stephen and Kenneth’s
mother, Deborah Bush, drove by and offered her sons a ride
home, but they declined. Stephen joked that Bush drove so
slowly he could get home sooner on foot. As they continued on,
Stephen, Crawford, and A.A. sang a song called “Gangster
Lean.” When the song ended, Kenneth heard a deep male voice
say, “Now, Blood.”
Shots erupted. Several witnesses described what
happened. Lloyd heard a single boom followed by approximately
20 gunshots and saw blue sparks pass by his feet. Initially he
thought the noise and sparks came from “a pack of firecrackers.”
7
To avoid confusion, we refer to the Coats brothers by their
first names.
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He and A.A hid behind a brick barbeque. A.A. had been shot in
the hand. Lawrence also hid when he heard the gunshots. When
the firing stopped, he emerged and called out to his friends. No
one responded, but a figure stood nearby. Gunfire resumed.
Lawrence retreated to his hiding spot but was shot in the leg as
he ran.
Kenneth also initially thought the gunshots were
firecrackers. He and his friends kept walking until they noticed
Evans holding his stomach. Evans cried, “Mama,” and began
crawling away. Stephen then pushed Kenneth away and said,
“I’m hit.” As he tried to hide, Kenneth saw the outline of two
figures. One was taller and heavier and wore his hair in braids.
The figures ran toward Orange Grove.
The three boys who had split from the group earlier ran
back to their friends when the firing stopped. Crawford and
Stephen lay unmoving. Kenneth screamed, “They shot my
brother!” and “Let me to him.” Evans lay on some stairs, still
calling for his mother. A.P. sat in a driveway, shot in the leg.
Lloyd knocked on a nearby door and asked to use the
phone. He called his mother while the homeowner called police.
Bush had heard the shots as she pulled into her driveway and
ran back down the street toward her sons. When she arrived at
the scene, she found two boys on the ground. Crawford had no
pulse. Bush saw that her son Stephen “had a bullet in his head
and . . . was already gone.” She never saw Evans. Kenneth ran
up to her, crying “I want my brother. Please don’t let this be my
brother.” Bush’s daughter arrived and covered Stephen’s body
with a jacket. Paramedics and police arrived shortly thereafter.
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Stephen sustained multiple gunshot wounds. Crawford
was struck by three to five rounds and died from a shot to his
chest. Evans died from a similar wound.
d. Eyewitnesses
Gabriel Pina and Lillian Gonzales were walking their dog
around 10:00 p.m. when four cars sped past and turned out of
sight. The couple later saw most of the cars parked on a different
street with a large group of people gathered nearby. The lead
car reversed down the street toward them, stopped, then drove
back up the street again. Pina identified the lead driver as
McClain. A few minutes later, the couple heard gunshots. A
gunman in a trench coat ran from Wilson Street and got into a
car. Pina identified the fleeing man as Holmes.
Jessica Ramirez, who lived near Wilson Street, saw two
stopped cars and a group of Black men. Shortly thereafter, she
heard what she thought were fireworks or gunshots.
e. Ballistics Evidence
Multiple nine-millimeter and .38- or .357-caliber shell
casings and fragments, along with live .38-caliber rounds, were
recovered from locations on Wilson Street. Expended nine-
millimeter casings and a live .38-caliber round were also
recovered from North Pasadena Avenue (Pasadena Avenue)
near McFee’s house. The live round found on Pasadena Avenue
and the three live rounds collected on Wilson Street were .38-
special wad cutter bullets made by PMC Company. Almost all of
the nine-millimeter casings at both locations were fired from the
same weapon. The bullets recovered from the bodies of Crawford
and Stephen Coats were both .38- or .357-caliber, but they had
been fired from different weapons.
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3. Conduct After the Shootings
a. Holmes
In December 1993, Derrick Tate met Holmes while
visiting a friend, Terranius “T” Pitts. Holmes wore a P-9 hat and
talked about the Halloween shootings saying they were in
retaliation for the Crips’ killing of Hodges. He described hiding
in bushes, jumping out, yelling “trick-or-treat,” and opening fire
on a group. He claimed he planned to get a hat made that said
“trick-or-treat.” Holmes said McClain was not involved in the
shootings. According to Tate, McClain had suggested he and
Tate leave California together. McClain was also considering
“turn[ing] himself in” because “[h]e was tired of running.”
Tate revealed this information while incarcerated on a
joyriding charge, ultimately serving time for that offense. He
was given no reward money, but his food and lodging expenses
were paid during the week of his testimony. Tate had previously
suffered three or four felony convictions outside California.
Tate was frightened to appear in court because he heard
that a witness had been killed. A few weeks earlier, Tate’s
mother and girlfriend received visits from people looking for
him. Someone phoned to warn his mother that Tate “had better
not show up in court.” The presence of Pitts’s girlfriend made
him nervous, and she was excluded from the courtroom during
his testimony.
b. McClain
A day or two after the shootings, McClain told Mario
Stevens that he and others had “put in some work” on some
Crips on Wilson Street.
McClain visited his cousin, James Carpenter, shortly after
the shootings. When Carpenter was interviewed in December
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after his arrest for robbery, he said McClain spoke about
shooting three Crips in retaliation for the murder of Hodges.
McClain had bragged, “Boom boom pow pow pow, I can still hear
the noise.” During this visit, McClain and the others learned
that the shooting victims had been children, not Crips. McClain
then cut his hair and made immediate plans to leave town. At
trial, Carpenter denied overhearing any conversation about the
Halloween shooting. He did testify that McClain sold a .38-
caliber gun to another cousin, Michael Thompson, who was later
arrested in possession of it.
Troy Welcome corroborated a number of Carpenter’s
statements. Welcome saw McClain in Tulare on November 2,
1993, when McClain got into Welcome’s car and placed a gun on
his lap. McClain hinted, by singing along with a popular song,
that the gun had been used in a shooting. He sang the same song
at a park later that weekend. McClain told Welcome he was “on
the run.”
McClain was on parole but stopped reporting for
appointments after October 25, 1993. Flying from Ontario,
California to Memphis, Tennessee on November 7, he told a
fellow passenger that he was traveling under an assumed
identity. He said he did not fly out of Los Angeles because he
believed there was additional police scrutiny there.
c. Newborn
Holmes’s cousin DeSean8 testified for the prosecution
against Newborn. After DeSean was arrested in 1995 for
burglarizing McFee’s house, he and Newborn were housed in the
8
To avoid confusion with defendant Holmes, we refer to
DeSean Holmes by his first name.
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Opinion of the Court by Corrigan, J.
Wayside Jail. Newborn told DeSean that he went to McFee’s
house on Halloween 1993 and “got into it” with some people
there. Newborn said he shot at McFee’s house from across the
street using a Glock nine-millimeter handgun.
Newborn also described the Wilson Street shooting. That
night, he was riding around with people who said they were
shooting Crips. Newborn insisted the shooting was not his fault.
After they had circled the block once, a fellow passenger said,
“those are the Crips right there,” and shooting broke out.
Newborn hoped to use a girl as an alibi, but he could not get in
touch with her.
DeSean was a reluctant witness because his mother had
been threatened. Newborn had also told DeSean directly that, if
he ever got out of custody, he would “smash everybody that was
on his list.” DeSean assumed he was among them.
4. Defense Evidence
Holmes, McClain, and Newborn each put on a defense.
Holmes presented evidence that on Halloween he was
home with his wife and infant son at 6:30 p.m., left to go to the
hospital after learning of the Hodges shooting, and was home by
10:00 p.m.
McClain testified that he had turned himself in and denied
any involvement with the shootings. He went to Tulare after
Halloween and saw Carpenter, but only went there to sell drugs.
McClain denied speaking with Welcome or telling Stevens he
had “put in some work.” He admitted being present when Price
was shot but said he was not the shooter.
Newborn called Shawntia Blaylock, a woman who had
been dating Hodges and was at the hospital the night he died.
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Although she recalled seeing many people, neither Newborn nor
the witness who claimed to have seen him was present. Newborn
also presented evidence that he had not learned of Hodges’s
death until the following day.
B. Penalty Phase
The first jury hung at the penalty phase. The discussion
below relates evidence presented in the retrial. McClain was
represented by counsel at the guilt phase and first penalty
phase. As discussed further below (see post, at pp. 97–106) he
chose to represent himself at the penalty retrial and was
assisted by advisory counsel.
1. Victim Impact
a. Edgar Evans
Robert N., Evans’s cousin, had taken cover during the
gunfire, then ran to the injured. Crawford and Coats lay on the
ground, and his cousin was on some stairs crying for his mother.
Robert suffers continuing distress from the loss of his friends.
Evans’s mother testified about their last conversation,
when she gave him permission to go to the Halloween party. She
had asked Evans to call home if he would be late, and she
became concerned when she had not heard from him by 10:00
p.m. She considered calling the police but decided against it.
Shortly after 11:00 p.m., another mother called to tell her about
the Wilson Street shooting and suggested she go to the hospital.
There, she saw Evans’s feet on a stretcher and knew it was her
son. A nurse gave her Bible verses found in Evans’s pocket.
A cousin testified that after the murder Evans’s mother
was “really out of it. She didn’t want to eat, couldn’t sleep, just
cried most of the time.” Evans’s older sister was also distraught.
She did not understand how her brother could have been
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murdered when he was just walking home from a party. She
stopped attending school and became afraid to leave the house.
Evans’s father also took the death poorly, losing business and
retreating socially.
Neighbors remembered Evans as a kind and helpful child
who attended church with his mother. He was a talented writer
and had won an essay contest on Dr. Martin Luther King, Jr.’s
“I Have a Dream” speech.
b. Stephen Coats
Kenneth Coats described the immediate aftermath of the
shooting. When the gunfire stopped, he left his hiding place to
look for Stephen. His mother, sister, and aunt approached as he
reached his brother’s body. Kenneth wanted to pick him up and
take him home, but his mother explained that the police needed
to investigate. Stephen’s body was partially wrapped around a
tree, and Crawford’s lay partially in the street. Kenneth
implored his friends to get up before realizing they were dead.
Stephen’s mother testified about seeing her son with the
other youngsters just moments before his death. When she
pulled into her driveway and heard gunshots, she ran back
toward the children. She saw Stephen’s body lying on the ground
with a head wound. He had no pulse. She recalled telling
Kenneth not to move his brother’s body and holding her 12-year-
old daughter. She knew she should leave the scene so the
investigators could work, but explained, “I had to virtually drag
my kids home. . . . For the first time in my life I had three kids
to bring home, I had to leave one behind. And that was the most
difficult thing I had to do.”
Stephen’s father learned of the shooting later that night
when his daughter called, crying and inconsolable. He felt
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“disbelief, surprise, shock,” and “kept thinking, well, it was
Halloween, maybe they are playing a cruel joke or something.”
Mr. Coats went to the scene and testified that he would “never
forget” the image of his son “lying on the ground . . . lifeless, ants
crawling on his face, in his nose, the bullet hole in his head.”
Coats blamed himself for his son’s death, believing the child
would still be alive if he had insisted he spend Halloween at
home.
Stephen enjoyed playing video games and basketball. A
talented artist, he had painted a mural at Washington Middle
School.
c. Reggie Crawford
Crawford’s mother had not wanted her children to go
trick-or-treating because she felt it was dangerous but allowed
Crawford to attend a party instead. In their last conversation,
she hurried her son out the door, telling him he looked nice. She
drove past the boys as they walked home later that night but
continued on because the group would not fit in her car. About
five minutes later she heard gunshots; then Robert N. ran in
saying her son had been shot. The crime scene was blocked off,
and officers told her to go to the hospital. Once there, she was
not allowed to go past the waiting area even though she insisted
her son had been hurt and she needed to see him. She still did
not know he had died. She eventually went home to wait for
news and did not learn of Crawford’s death until hours later.
Telling her other children was like going “through living hell”
because “they didn’t know how to handle it.”
d. Surviving Victims
Some of the other youngsters who were fired upon
testified. Lloyd S. was 12 years old that night. He said the
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shooting affected his life in many ways and “hurt” him. He was
unable to attend school afterward and began studying at home
instead.
Lawrence A. was 14 years old that Halloween. He was shot
in the leg when he left his hiding place to call for his friends. His
brother, A.A., and cousin, A.P., were also hit. When Lawrence
saw that Coats and Crawford were on the ground and bleeding
profusely, he “went into shock” because there was nothing he
could do. He heard Evans moaning but stayed with his injured
brother and cousin until the ambulance arrived. Lawrence said
the experience taught him it is difficult to make it on the streets
and “[y]ou never know who is coming.”
A.A., then 13 years old, was shot in the hand and
experienced lingering problems from the injury. He recalled
seeing his friends’ bodies on the ground and hearing a woman
screaming. He described removing a bandana from one friend’s
head to keep as a memento.
2. Aggravating Conduct
a. Holmes
Holmes had been arrested on August 3, 1990, for having a
loaded gun in his pocket at a carnival.
When the guilty verdict in this case was announced,
Holmes yelled at the jury: “Fuck you, you motherfuckers. P-9
rules.”
b. McClain
McClain had felony convictions for grand theft auto and
three instances of possessing a firearm as a felon. The
prosecution also presented evidence of several unadjudicated
violent offenses.
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On July 27, 1989, Raquel Flores was parked in front of her
home when McClain approached and asked if a certain person
lived there. When she said no, McClain reached forward, pulled
the chains from around her neck, and ran away. Flores
identified McClain in a field show-up half an hour later.
On August 9, 1990, Bernard Rowe and Bryant Cook stood
in Rowe’s front yard when McClain and another man
approached with handguns and stole a Mustang from the
driveway. They were stopped by police 10 minutes later, and
Rowe identified McClain as the thief.
In 1995, while incarcerated, McClain tried to attack
another inmate. Afterward, McClain was found with a jail-made
stabbing implement, or shank.
During this trial, after witness Joseph Petelle testified
and was leaving the courtroom, McClain said, “I’ll kill you.”
McClain also threatened deputies. McClain asked a deputy why
his belt was warm and learned it was because the deputies had
just tested it. When Newborn noted that his belt was cold,
McClain said, “if you do one of us, you’ll have to do us all.”
Newborn then said, “if you push one button . . . .” When a deputy
asked what had been said, Newborn repeated McClain’s threats
and added, “If you push one button, then you better push all
three, because you know what I’m going to do.” McClain then
said, “Don’t get within two feet of me or I’ll kill you, and I’ll [sic]
have weapons this time.” (See further discussion, post, at pp.
111–113.)
c. Newborn
Newborn was involved in two fights in 1986 while a ward
at California Youth Authority. In the first, he was the “clear[]
aggressor,” striking a fellow ward after an argument. In the
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second, he broke away from a supervisor while being disciplined,
hopped over a barrier, and started fighting with another ward.
The jury heard evidence of domestic violence Newborn
committed against several partners. Arguing with Tanchell
Anderson shortly after their relationship ended in 1991, name-
calling escalated to an exchange of blows. Anderson told police
Newborn had knocked her to the ground and punched her in the
face about 30 times.
When Newborn was dating Aneadra Keaton in 1992, he
once broke into a house she was visiting and assaulted her,
pushed her down a stairway, and forced her to leave. Another
time, Newborn hit Keaton several times during an argument.
Detrick Bright was driving a car in August 1992 when
Newborn kicked in her car window, injuring her with broken
glass. In 1993, he took her pager and hit her several times.
When police arrived, Newborn resisted and had to be subdued
with mace. Later that year, Newborn sprayed the then-pregnant
Bright in the face with household cleaners.
In November 1992, Rochelle Douglas had been dating
Newborn for over three years and was eight-and-a-half months
pregnant with his child. One day they argued, and Newborn
asserted the child was not his. He told her not to “put the baby
in his name” when it was born or he would hurt her. He then hit
her several times in the face.
Two other incidents were introduced. In 1992, Newborn
threatened Louise Jernigan with a gun during an argument. In
May 1993, he resisted arrest. Officers responding to reports of
an armed man asked to search Newborn and directed him to
place his hands on his head. He refused to comply, yelling curses
and attempting to incite a nearby crowd.
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3. Mitigation
a. Holmes
Holmes presented evidence to cast doubt on the guilt
verdicts. An officer with the Pasadena Police Department gang
unit testified that he did not personally see whether any P-9
members were present at the hospital on Halloween night.
Eyewitness Gabriel Pina conceded that his description of the
cars on Wilson Street was vague and partially inaccurate. A
detective testified that, in photographs, Holmes did not appear
to have a ponytail or to be “fat and flabby,” as Kenneth Coats
described the two men who fled from the shooting.
Holmes’s father had raised Holmes and his three siblings,
after his wife’s sudden death. His early childhood was
uneventful until his mother’s passing when Holmes was 14 or
15 years old. An aunt testified that the mother’s unexpected
death had a profound impact on Holmes and the entire family.
The family was close, and Holmes’s execution would affect them
all.
b. McClain
McClain’s advisory attorney testified that, as witness
Petelle passed by counsel table McClain actually said: “You’re
a dickhead,” not “I’ll kill you.”
The mother of McClain’s daughter testified that it would
sadden her and all her children if McClain were executed.
McClain’s mother testified that it would be hard for the family
to deal with her son’s execution because they believed him to be
innocent.
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c. Newborn
Newborn disputed Jernigan’s testimony, asserting he did
not brandish a weapon or speak to her at all.
Newborn’s mother testified that he was born when she
was in high school and already had another child. During the
five years she was married to Newborn’s father, he abused her.
After the divorce, Newborn’s relationship with his father was
hostile. He was close to two of his brothers until one was killed
and the other incarcerated. Fernando Hodges then became a
close friend and remained so until his death.
Newborn suffered various physical and intellectual
infirmities. He walked with a noticeable limp and was teased by
his peers. As a child, he repeatedly ate laundry detergent if it
was not stored properly. In his early teen years he wet the bed.
He was hospitalized with three childhood head injuries but
treated only with aspirin. Newborn was sent to juvenile camp at
age 13 and California Youth Authority at age 15. Suffering from
a learning disability and speech impediment, he was ultimately
labeled intellectually disabled. Of the 500 students at the
California Youth Authority, his I.Q. ranked 490th. He was
medicated for being “hyper” and developed a tolerance. After he
received increasingly higher doses, it was “like he just wasn’t
[t]here.”
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II. DISCUSSION
A. Guilt Phase
1. Pretrial Issues
a. Joinder/Severance
i. Joinder of Crimes
McClain contends the court erred in failing to sever the
attempted murder of Price from the Wilson Street shooting
charges.9 The court acted within its discretion.
The law favors trying all charged offenses together.
(People v. O’Malley (2016) 62 Cal.4th 944, 967 (O’Malley).)
Section 954 provides in pertinent part: “An accusatory pleading
may charge two or more different offenses . . . of the same class
of crimes or offenses, under separate counts.” Murder and
attempted murder, both of which are “assaultive crimes,” are
9
As all three defendants have done with regard to virtually
every claim, McClain asserts “that the error violated his rights
to a fair trial and reliable penalty determination under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution and corresponding provisions of the
California Constitution. In most instances, defendant[s] failed
to make these constitutional arguments in the trial court.
Nevertheless, unless otherwise indicated, we consider the
merits of these newly raised arguments because either (1) the
appellate claim is of a kind that required no objection to preserve
it, or (2) the claim invokes no facts or legal standards different
from those before the trial court, but merely asserts that an
error had the additional legal consequence of violating the
Constitution. [Citation.] In those circumstances, defendant[s’]
new constitutional arguments are not forfeited on appeal.
[Citations.] Where rejection of a claim of error on the merits
necessarily leads to a rejection of the newly asserted
constitutional objection, no separate constitutional analysis is
required and we have provided none.” (People v. Virgil (2011) 51
Cal.4th 1210, 1233−1234, fn. 4.)
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
offenses “ ‘ “of the same class” ’ ” and may be joined for trial.
(People v. Zambrano (2007) 41 Cal.4th 1082, 1128; see People v.
Miller (1990) 50 Cal.3d 954, 987.) A denial of severance is
reviewed for abuse of discretion. (Zambrano, at p. 1128.) “ ‘The
state’s interest in joinder gives the court broader discretion in
ruling on a motion for severance than it has in ruling on
admissibility of evidence.’ ” (Alcala v. Superior Court (2008) 43
Cal.4th 1205, 1221.) Where, as here, the statutory requirements
for joinder are met, the defendant must make a clear showing of
prejudice to demonstrate that the trial court abused its
discretion. (Ibid.)
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.”
(O’Malley, supra, 62 Cal.4th at p. 968.) McClain contends each
of these factors supported severance, making joinder of the
charges an abuse of discretion.10
“ ‘ “[T]he first step in assessing whether a combined trial
[was] prejudicial is to determine whether evidence on each of the
10
He also maintains the court failed to exercise its discretion
at all. The record reveals otherwise. The court reviewed the
motion and opposition documents, all of which comprehensively
argued the opposing positions on severance. It then ruled on the
motion. Its care was evident in its express acknowledgment that
facts might later emerge warranting reconsideration of that
decision.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
joined charges would have been admissible, under Evidence
Code section 1101, in separate trials on the others. If so, any
inference of prejudice is dispelled.” ’ ” (People v. Jenkins (2000)
22 Cal.4th 900, 948.) Although cross-admissibility is not “a
precondition to joinder of charges” (O’Malley, supra, 62 Cal.4th
at p. 968, citing § 954.1), its existence negates prejudice.
(Jenkins, at p. 948.) McClain asserts that evidence of the
charges was not cross-admissible because there were no
common elements between offenses and the offenses did not
relate to one another. That is not the case. Evidence of the attack
on Price would likely have been admissible in a hypothetical
separate trial on the Halloween charges because it was relevant
to prove McClain’s state of mind. Evidence of uncharged crimes
may be admitted when relevant to prove a disputed fact, like a
defendant’s intent or motive. (Evid. Code, § 1101, subd. (b).)
Like the Halloween shootings, the Price attack was clearly gang-
motivated, as evidenced by Price’s testimony that McClain said
“thank you, Blood” when handed a cigarette. McClain concedes
this was a gang-related insult, because Price was a member of
the Crips. But the connection between the shootings surpasses
simple gang enmity. The shootings appeared to be connected in
a sequence of retaliatory violence. (See People v. Price (1991) 1
Cal.4th 324, 388–389 (Price).) Three days after Bloods member
McClain shot Crips member Price without provocation, a Crips
member shot and killed Bloods member Hodges in the same
apartment complex. The Wilson Street shootings took place
within hours. Holmes and McClain told others the shootings
were in retaliation for the Hodges killing. Someone was heard
to say: “now Blood,” right before the gunfire began. Newborn
told his cousin he shot at McFee’s house and later rode with
others looking for Crips to shoot. Even McClain, then
20
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
representing himself, agreed this “chain of events” made
defendants “look guilty.”
McClain next asserts the Halloween charges were unduly
inflammatory, rendering joinder with the Price charge
improper. Although the Halloween shootings garnered
significant media attention, both crimes were demonstrably
cruel. (See Price, supra, 1 Cal.4th at p. 390.) Price was shot in
the face at close range, his kind act for a stranger repaid with
gunfire. Indeed, McClain concedes the gang aspect of the Price
shooting rendered it “inherently inflammatory.” The Halloween
shootings were in the same vein. As in the Price case, the
incidents were “different in their particulars,” but “equally
abhorrent.” (Id. at p. 390.)
Nor is there a concern that joinder could improperly
enhance a weak case. Strong evidence implicated McClain in
both offenses. Price selected McClain’s image from a
photographic lineup before he knew McClain’s name. He
testified emphatically and consistently that McClain shot him.
A great deal of evidence also confirmed McClain’s involvement
in the Halloween shootings. McClain admitted his involvement
to Stevens and showed Welcome a gun he had used in a shooting.
He changed his appearance, failed to meet with his parole
officer, and fled the area days after the crimes. He told a fellow
passenger he was traveling under an assumed identity and
feared police detection. Given the strength of the evidence of
McClain’s involvement with both the Price and Halloween
crimes, failure to sever did not lead to two separate, weak cases
becoming one in the minds of jurors, as McClain claims.
Finally, the fact that this is a capital case does not demand
a different outcome. “Even where the People present capital
21
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
charges, joinder is proper so long as evidence of each charge is
so strong that consolidation is unlikely to affect the verdict.”
(People v. Ochoa (2001) 26 Cal.4th 398, 423; accord, O’Malley,
supra, 62 Cal.4th at p. 969.) That standard was met here.
ii. Joinder of Parties
Each defendant moved repeatedly to sever his case from
those of his codefendants. Defendants now argue the court’s
refusal to grant severance resulted in error under People v.
Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United
States (1968) 391 U.S. 123 (Bruton), violating their right to
confront and cross-examine witnesses against them. There was
no error.
1) Legal Principles
The law of joinder and severance is settled. “When two or
more defendants are jointly charged with any public offense,
whether felony or misdemeanor, they must be tried jointly,
unless the court order[s] separate trials.” (§ 1098, italics added.)
The Legislature has “ ‘ “expressed a preference for joint trials” ’ ”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378
(Bryant, Smith and Wheeler)), which promote efficiency “ ‘and
“serve the interests of justice by avoiding the scandal and
inequity of inconsistent verdicts.” ’ ” (Id. at p. 379, quoting
Zafiro v. United States (1993) 506 U.S. 534, 537 (Zafiro).) We
review a denial of severance for abuse of discretion, considering
the facts as they appeared at the time of the ruling. (Bryant,
Smith and Wheeler, at p. 379.) If the ruling was proper when
made, a reviewing court may reverse only upon a showing that
joinder “ ‘ “ ‘resulted in “gross unfairness” amounting to a denial
of due process.’ ” ’ ” (Ibid.)
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
The confrontation principles applicable in joint trials are
also well established. A criminal defendant has a Sixth
Amendment right to confront and cross-examine adverse
witnesses. (Pointer v. Texas (1965) 380 U.S. 400.) “A problem
arises when a codefendant’s confession implicating the
defendant is introduced into evidence at their joint trial. If the
declarant codefendant invokes the Fifth Amendment right
against self-incrimination and declines to testify, the implicated
defendant is unable to cross-examine the declarant” about the
confession. (People v. Lewis (2008) 43 Cal.4th 415, 453 (Lewis).)
The United States Supreme Court addressed this concern
in Bruton. It held that when a nontestifying codefendant’s
confession is admitted and implicates the defendant, the
defendant’s right to cross-examination is violated. (Bruton,
supra, 391 U.S. at pp. 127−128.) A jury instruction to disregard
the codefendant’s statement in assessing the defendant’s guilt
will not cure the violation. (Id. at pp. 135–137.) “The high court
reasoned that although juries ordinarily can and will follow a
judge’s instructions to disregard inadmissible evidence, ‘there
are some contexts in which the risk that the jury will not, or
cannot, . . . is so great, and the consequences of failure so vital
to the defendant, that the practical and human limitations of
the jury system cannot be ignored.’ ” (Lewis, supra, 43 Cal.4th
at p. 453.) We had reached a similar conclusion in Aranda,
explaining that if the prosecution seeks to introduce a statement
in which one codefendant implicates another, the trial court may
address the request in one of three ways. It may: (1) admit the
statement but ensure it is redacted to eliminate references to
codefendants; (2) grant severance if redaction is impossible; or
(3) exclude the statement. (Aranda, supra, 63 Cal.2d at pp. 530–
531.)
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
The high court has continued to refine these rules. In
Richardson v. Marsh (1987) 481 U.S. 200, 211, it explained, “the
Confrontation Clause is not violated by the admission of a
nontestifying codefendant’s confession with a proper limiting
instruction when . . . the confession is redacted to eliminate not
only the defendant’s name, but any reference to his or her
existence.” In Gray v. Maryland (1998) 523 U.S. 185, 192 (Gray),
however, it clarified that when the redaction “simply replace[s]
a name with an obvious blank space or a word such as ‘deleted’
or a symbol or other similarly obvious indication[] of alteration,”
the resulting statement must be excluded as indistinguishable
from the statements in Bruton. “When, despite redaction, the
statement obviously refers directly to the defendant, and
involves inferences that a jury ordinarily could make
immediately, even [where] the confession [is] the very first item
introduced at trial, the Bruton rule applies and introduction of
the statement at a joint trial violates the defendant’s rights
under the confrontation clause.” (People v. Burney (2009) 47
Cal.4th 203, 231.)
2) Discussion
a) Claims Related to DeSean
Holmes’s Testimony
McClain and Holmes moved for severance before trial,
arguing Newborn had made statements after his arrest that
implicated them.11 The prosecution proposed to redact the
11
Newborn had previously sought severance based on
general Aranda/Bruton concerns. The court denied the motion
without prejudice, assuring the parties it would exclude
“anything that looks like or smells like Aranda/Bruton issues.”
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
statements to avoid the implication, and the motions were
denied. The motions were renewed before DeSean Holmes was
called to testify about incriminating statements Newborn made
during their joint incarceration. Previously, the prosecution had
agreed that DeSean would not be required to testify about his
cousin, Holmes. McClain protested that DeSean’s examination
would result in the presentation of “half-truths” and inferences
that would not be subject to cross-examination. He and Holmes
sought severance and a mistrial. The motions were denied.
DeSean testified that Newborn said he had shot at
McFee’s house on Halloween and also rode around with people
who were shooting at Crips. DeSean mentioned no names in his
testimony and gave no evidence incriminating Holmes or
McClain. Further, the court instructed that DeSean’s testimony
was offered against Newborn alone. Nevertheless, McClain and
Holmes both contend DeSean’s reference to unnamed others
who committed crimes with Newborn allowed the jury to infer
that they were the accomplices Newborn identified. No
Aranda/Bruton error occurred, and the court did not abuse its
discretion in denying severance. (See Lewis, supra, 43 Cal.4th
at p. 455.)
DeSean’s testimony conveyed precisely the type of
redacted statement Aranda contemplated. A defendant’s
confrontation right is not violated if a codefendant’s statement
can be redacted to eliminate a specific reference. (Aranda,
supra, 63 Cal.2d at pp. 530–531.) Although the high court later
held that the right to confrontation is offended when a redaction
refers directly or by clear inference to a given defendant (Gray,
supra, 523 U.S at p. 192), the redaction here comported with
Gray’s holding. There was ample evidence that a sizable group
was involved in the Wilson Street attack. DeSean’s testimony
25
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
referred to unspecified and unenumerated “others” who had
accompanied Newborn. This group could have included anyone.
Neither McClain nor Holmes was implicated by this
purposefully vague reference, and no prejudice resulted from the
statement’s introduction.
McClain argues to the contrary, raising two concerns
unrelated to Newborn’s statements. First, McClain complains
he was erroneously prevented from cross-examining DeSean
about DeSean’s invocation of the privilege against self-
incrimination regarding a separate shooting incident. Although
DeSean described himself as a crime victim in that incident, the
parties later stipulated he was not, in fact, a victim. McClain
asserts this limit on his ability to cross-examine DeSean,
coupled with the redacted statement, allowed the jury to infer
that he, McClain, was involved in both the shooting incident
DeSean referred to and the Halloween shootings Newborn
described. The argument is unpersuasive. The trial court
appropriately guarded DeSean’s invocation of his right against
self-incrimination. Nothing about this ruling rendered
Newborn’s redacted statement suggestive of McClain’s
involvement with the Halloween shooting. The two simply do
not relate, and McClain’s efforts to conflate them fail.
Second, McClain argues it was error for the court to deny
his severance motions because it had granted the prosecution’s
motion to sever Bowen and Bailey and there was no meaningful
distinction between the cases. McClain’s attorney apparently
accepted the court’s decision at the time, because he requested
only an opportunity to revisit how redacted statements would be
used before their admission. The court accommodated this
request. Assuming the current argument was not forfeited, it
lacks merit. Each severance denial is evaluated based on
26
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
circumstances known to the trial court at the time the decision
is made. (Bryant, Smith and Wheeler, supra, 60 Cal.4th at p.
379.) Although McClain argues the severance of Bowen and
Bailey belies any concern about judicial economy, these concerns
would only have increased with further divisions. Each
successive severance would tax scarce resources, burdening both
the court and witnesses who would be compelled to return to
testify in multiple trials.12 The trial court explained as much,
stating, “We have severed off . . . two clients. The building is
bankrupt; the county is bankrupt. Separate trials for every
defendant would be unacceptable to everyone.” Even
considering the severance of two other codefendants, the court
did not abuse its discretion in denying McClain’s motion; he has
not shown that the resulting consolidated trial was grossly
unfair. (See People v. Turner (1984) 37 Cal.3d 302, 313.)
Holmes’s claims are also unavailing. DeSean testified that
he saw Holmes with Hodges and others in October 1993. To the
extent this testimony implicated Holmes in a crime, it did not
offend the confrontation clause because DeSean was available
for cross-examination. (See Bruton, supra, 391 U.S. at pp. 127–
128, 135–137.) Moreover, the jury was given CALJIC No. 2.07,
telling them to consider DeSean’s testimony only against
Newborn. Jurors are generally presumed to follow instructions.
(People v. Sandoval (2015) 62 Cal.4th 394, 422.)
Holmes also contends the joint trial prevented him from
cross-examining DeSean about his statements in a telephone
conversation with defense counsel. DeSean claimed Newborn’s
12
We note that the guilt phase lasted well over four months,
including jury selection. It involved 73 witnesses and 173
exhibits, including lengthy audiotapes.
27
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
attorney called him and said he “had the right not to say
anything and . . . do what Fuhrman did in the O.J. trial.”13
Newborn’s attorney disputed DeSean’s account, noting that
Holmes’s attorney had also participated in the call. Although
Holmes’s attorney agreed the conversation “did not go the way
[DeSean] is saying,” he was uncomfortable about potentially
becoming an impeachment witness. Newborn insisted it was
important to impeach DeSean. Ultimately, DeSean asserted
that it was counsel for Holmes, not Newborn, who told him he
could decline to testify and invoke the Fifth Amendment. He was
not challenged on the point during his testimony.
Holmes claims his attorney’s efforts to examine DeSean
were “completely ineffective” because he could not impeach
DeSean without becoming a witness. He contends the jury could
have been left with the impression that he was trying to
manipulate the legal system, an inference that may have been
exacerbated by introduction of the agreement that DeSean
would not be testifying against him. Holmes did not object on
this basis at trial. Even assuming the claim is not forfeited, it
fails on the merits.
13
As was widely reported and televised at the time, Mark
Fuhrman was a former Los Angeles Police detective and central
figure in the O.J. Simpson murder trial. Fuhrman was called to
testify about evidence he recovered at the Simpson estate,
including a bloody glove. On cross-examination, he was asked
about his history of using racial epithets against African-
Americans and testified that he had not done so during the past
decade. He was impeached with numerous recordings in which
he used such an epithet. Asked whether he planted or
manufactured evidence in the Simpson case, he invoked his
Fifth Amendment privilege against self-incrimination.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Although it is true that Holmes’s attorney did not examine
DeSean in depth about the referenced conversation, the
impeaching point was definitively made. The parties expressly
stipulated that at no time did counsel for Holmes encourage
DeSean to invoke the privilege or otherwise encourage him not
to testify. The stipulation effectively impeached DeSean’s
testimony, and counsel could reasonably have chosen to rely on
it instead of pursuing the potentially risky strategy of further
probing the issue on cross-examination.
Nevertheless, Holmes claims his right to counsel was
impaired by his attorney’s conflict. The Sixth Amendment and
California Constitution guarantee the right to loyal and conflict-
free counsel. (People v. Doolin (2009) 45 Cal.4th 390, 417–418.)
“In the context of a conflict of interest claim, deficient
performance is demonstrated by a showing that defense counsel
labored under an actual conflict of interest ‘that affected
counsel’s performance — as opposed to a mere theoretical
division of loyalties.’ ” (Id. at p. 417.) An adverse impact on
performance is shown by demonstrating counsel did or did not
do something he otherwise might have done absent the conflict.
(Id. at pp. 417–418.) Holmes fails to show the existence of any
actual impact on his counsel’s performance. Nor has Holmes
shown prejudice from any such asserted conflict. To obtain relief
for ineffective assistance of counsel, a defendant must show both
deficient performance “and a reasonable probability that but for
counsel’s deficiencies, the result of the proceeding would have
been different.” (Id. at p. 421.) Here, the jury was instructed that
DeSean’s testimony pertained only to Newborn. (See People
v. Sandoval, supra, 62 Cal.4th at p. 422.) The parties had also
stipulated, contrary to DeSean’s testimony, that Holmes’s
attorney never advised DeSean along the lines he alleged. Thus,
29
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
the jury would have understood that DeSean’s testimony did not
relate to Holmes and his allegations about Holmes’s attorney
were agreed to be untrue. 14
Holmes also claims the joint trial resulted in gross
unfairness because DeSean’s agreement not to testify against
him may have implied that DeSean either feared, or was trying
to protect, him. However, the agreement made clear that
questions from other defendants could be limited only to the
extent permitted by law. DeSean was thus aware of the
possibility he would be asked about Holmes, and he agreed to
answer any such questions honestly. Although DeSean
indicated that he was afraid of some people, he never testified
that he feared Holmes. Nor did his testimony suggest he was
protecting his cousin. It is speculative to conclude the jury would
have drawn the negative inferences Holmes suggests. Moreover,
any such inference would have been cured by the jury’s
instruction to consider DeSean’s testimony against Newborn
alone.
b) Claims Related to Derrick
Tate’s Testimony
During an Evidence Code section 402 hearing, Newborn
raised an Aranda issue concerning Derrick Tate’s expected
testimony that Holmes had said he, Newborn and one Ernest
14
Separately, Holmes suggests the conflict gave rise to
misconduct because the prosecutor’s closing argument alluded
to DeSean’s statement about Holmes’s attorney. However, the
prosecutor immediately corrected his statement after an
objection was raised. The fleeting comment, immediately
corrected, does not constitute prosecutorial misconduct
rendering the trial grossly unfair.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Holly committed the Halloween shootings. The prosecutor
responded that Tate had been instructed not to mention
Newborn or McClain, and the court stressed that Tate could only
refer to any of Holmes’s coparticipants by generic pronouns,
such as “others.” The court permitted McClain to elicit that he
was not among the “others” Holmes had mentioned. When
Newborn objected, noting he would be unable to extract similar
testimony, the prosecutor proposed a limiting instruction, to
which Newborn agreed.
The jury was told that Tate’s testimony “concerning the
statement of Karl Holmes [was] limited to defendants Karl
Holmes and Herbert McClain.” When Tate testified, he did not
identify the “others” Holmes had mentioned. He did agree that
Holmes said McClain had not been involved.
Newborn now argues Tate’s testimony implicated him by
process of elimination, in violation of Aranda/Bruton principles.
Not so. The court reasonably concluded Newborn’s concerns
could be sufficiently addressed by redaction and a limiting
instruction. Tate was directed to refer only to “others” who
joined Holmes in the shooting, and he complied with this
direction. Moreover, Newborn specifically agreed to a limiting
instruction that the “others” did not include McClain. There was
extensive evidence that a large group converged upon the
hospital after Hodges was shot and that several cars full of
people flashing P-9 signs were present on Wilson Street
immediately before the shooting. Any mention of “others” was
broad enough to avoid the specific inference of which defendants
complain. Nor did the court abuse its discretion in denying
severance before Tate testified. (See Bryant, Smith and Wheeler,
supra, 60 Cal.4th at p. 379.) “ ‘[A] trial court must order a joint
trial as the “rule” and may order separate trials only as an
31
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
“exception.” ’ ” (People v. Cleveland (2004) 32 Cal.4th 704, 726.)
“[I]mportant concerns of public policy are served if a single jury
is given a full and fair overview of the defendants’ joint conduct
and the assertions they make to defend against ensuing
charges.” (Bryant, Smith and Wheeler, at p. 379.) Separate trials
may be warranted under certain circumstances, including
conflicting defenses, incriminating confessions, confusing
differences in the charged counts, risks of prejudice from
association with codefendants, or possibilities for exoneration by
codefendants testifying in a separate trial. (See ibid.) None of
those circumstances is present here. Apart from an additional
charge against McClain, the defendants faced nearly identical
charges. There was little risk that evidence on multiple counts
would engender confusion. (See Cleveland, at p. 726.) Strong
cases existed against each defendant, and there is no reason to
think that any of them was prejudiced by association with any
other. Nor is there an indication any defendant would have
given exonerating testimony in a separate trial. (See ibid.) They
did not offer conflicting defenses, and the case did not involve a
confession by any defendant incriminating the others. (Ibid.) As
in People v. Cleveland, “this was a classic case for joint trial.”
(Ibid.)
c) Claims Regarding Defendant
McClain’s Testimony
Holmes and McClain both moved for severance before
McClain testified. Holmes worried he would be implicated by
McClain’s statement to Carpenter about the shooting of people
he thought were Crips but later learned were children.
McClain’s motion similarly sought to prevent the prosecution
from asking about this statement. The court denied the motions,
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
reasoning that the prosecution had a right to impeach McClain
with prior inconsistent statements if he chose to testify.
Holmes now claims something akin to Griffin error
occurred during McClain’s testimony because, by examining
McClain about his decision to testify, the prosecutor came close
to commenting on Holmes’s silence. In Griffin v. California
(1965) 380 U.S. 609, 615, the United States Supreme Court held
the Fifth Amendment forbids the prosecution from commenting
on a defendant’s silence at any phase of trial. No Griffin error
occurred here. On cross-examination, McClain asserted that
prosecution witnesses were lying, and he was telling the truth.
The prosecutor challenged this assertion by asking whether
McClain would “get up there and admit it” if he had killed the
victims. Understood in context, this question related to
McClain’s own credibility and was not an impermissible
commentary on the codefendants’ silence. Indeed, McClain’s
response endorsed his codefendants’ decision not to take the
stand. He said, “my homeboys got to do what their lawyers tell
them for their best interest.” He explained that he was not doing
the same because he did not believe his attorney had his best
interests in mind. Rather than be “railroad[ed],” he wanted to
take the stand to speak the truth. Jury instructions also
addressed the issue. Specifically, the jury was told: (1) a
question is not evidence and is useful only to the extent it helps
jurors understand the response; (2) a defendant has the right
not to testify and no inferences may be drawn from the decision
not to do so; and (3) “[i]n deciding whether or not to testify, the
defendant may choose to rely on the state of the evidence and
upon the failure, if any, of the People to prove beyond a
reasonable doubt every essential element of the charge against
him.” Accordingly, the court had no obligation to sever Holmes’s
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
trial from McClain’s on its own motion. (People v. Turner, supra,
37 Cal.3d at p. 313.)
Separately, although he did not seek relief below,
Newborn contends the court erred in failing to sever his case or
grant a mistrial sua sponte because McClain’s testimony would
not have been admitted against him in a separate trial. In
Zafiro, supra, 506 U.S. at page 539, the United States Supreme
Court explained that severance should be granted “only if there
is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants,” which might occur if
evidence admitted against a codefendant would have been
inadmissible in a trial against the defendant alone. However,
the high court rejected the argument Newborn makes here. It
explained: “A defendant normally would not be entitled to
exclude the testimony of a former codefendant if the . . . court
did sever their trials, and we see no reason why relevant and
competent testimony would be prejudicial merely because the
witness is also a codefendant.” (Id. at p. 540) Newborn fails to
show how he could have been prejudiced. McClain asserted that
all three defendants were innocent, that Newborn and Holmes
heeded their attorneys’ advice not to testify, and that he was
testifying against his lawyer’s advice because he felt
“railroad[ed].” Finally, nothing in the record suggests the jury
was “unable or unwilling to assess independently the respective
culpability of each codefendant or [was] confused by the limiting
instructions.” (People v. Ervin (2000) 22 Cal.4th 48, 69; see
Zafiro, at pp. 540–541.)
34
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
b. Jury Selection
i. Cause Challenge
Defendants contend the for-cause excusal of Juror No. 126
deprived them of due process and a representative jury. The
claim fails.
1) Background
Juror No. 126 expressed considerable ambivalence about
the death penalty in her questionnaire. Asked for her general
feelings on the subject, she responded: “I’m for the death
penalty I think. I never really thought about it. —
Ambivalence — ” When asked whether California should have
the death penalty, she checked both the “yes” and “no” boxes and
wrote, “I think so, but I don’t know at this time.” She marked
“yes” when asked whether it would be difficult for any reason to
sit on a case where she would be called upon to impose the death
penalty, adding, “who would not find it difficult to make a
decision regarding someone’s life.” Although stating it would not
be impossible for her to vote for either outcome, she
acknowledged she would not like the responsibility of casting a
vote that would cause someone to be executed. She did not know
whether she might refuse to find special circumstances true,
regardless of evidence, to avoid having to consider penalty. She
explained: “I’m really not sure how I feel about the death
penalty. I gues[s] it would be ambivalence. On one hand I believe
in time and with help people can change. These [sic] way of life,
how they see and do things. On the other maybe there are some
people who will never change, who have no conscious, remorse
or any feelings of guilt.”
During voir dire, Juror No. 126 repeated that her position
toward the death penalty was best described as “ambivalent.”
35
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
When the court explained the jury’s role in evaluating penalty
phase and asked whether Juror No. 126 was capable of
participating in those deliberations, she replied she was “not
certain” she could. The court asked whether there were any
circumstances in which she could impose the death penalty,
observing that if she and her fellow jurors voted in favor of
death, they are “actually . . . the one[s] putting that person to
death.” Given additional time to consider her feelings, the juror
explained she had given it a great deal of thought and remained
uncertain whether imposing the death penalty was something
she could do. The court then asked if Juror No. 126 would feel
more comfortable not sitting on a death penalty case, and she
responded, “I am sure we all would. Yes, I would.” The court
then indicated its intent to relieve her of service. McClain’s
attorney asked to inquire further, but the court denied the
request. In a chambers conference immediately afterward, the
court explained that it had asked enough questions and did not
think further inquiries were needed. The court concluded the
juror’s “heart” would make her unable to serve in a capital case.
The court offered defense counsel an opportunity to make a
record of questions she would have asked, but counsel submitted
the matter and raised no objection to the dismissal.
2) Discussion
Defendants contend the court improperly refused to
permit defense questioning and improperly excused the juror.
Assuming the claims were preserved, they lack merit.
In a capital case, particular circumstances may support
the excusal of a potential juror for cause. (People v. Cash (2002)
28 Cal.4th 703, 720.) The test is whether the juror’s views
toward capital punishment would “ ‘prevent or substantially
36
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
impair the performance of [her] duties as a juror in accordance
with [her] instructions and [her] oath.’ ” (Wainwright v. Witt
(1985) 469 U.S. 412, 424 (Witt).) A juror’s bias need not be
demonstrated with “ ‘unmistakable clarity’ ” (ibid.), however,
and “deference must be paid to the trial judge who sees and
hears the juror” (id. at p. 426). When a prospective juror has
made conflicting or ambiguous statements, we accept as binding
the trial court’s determination on the juror’s true state of mind.
(People v. Souza (2012) 54 Cal.4th 90, 123.) An excusal for cause
will be upheld on appeal “ ‘if supported by substantial
evidence.’ ” (People v. Jones (2017) 3 Cal.5th 583, 615.)
We have also explained a party is entitled to ask questions
that are specific enough to determine whether prospective jurors
harbor bias, based on a fact or circumstance that may be shown
by the trial evidence, and thus be unable to consider aggravating
and mitigating evidence when determining penalty. (People v.
Cash, supra, 28 Cal.4th at pp. 720–721.) Voir dire concerning
death-qualification must thread the needle between two
extremes, ensuring it is neither “so abstract that it fails to”
identify jurors whose attitudes “would prevent or substantially
impair the performance of their duties,” and yet, not so specific
as to encourage prejudgment. (Id. at p. 721.) Trial courts are
vested with the considerable discretion necessary to accomplish
this exercise. (Id. at p. 722)
The court was not obliged to permit further questioning
on this record. (See People v. Cash, supra, 28 Cal.4th at p. 721.)
Defendants challenge the court’s refusal to allow inquiry about
whether the juror could “shoulder the responsibility of sitting as
a capital juror and render[] a judgment.” But the record shows
Juror No. 126 was questioned about this very subject.
Defendants identify no other line of questioning they were
37
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
prevented from pursuing, and the record reveals none. The court
said in camera that defendants could “make [their] record” and
“ask questions.” They declined, with McClain’s counsel agreeing
simply to “submit it.” No error occurred.
The court’s excusal for cause was within its discretion. As
we have repeatedly held, the trial court is in the best position to
assess the juror’s demeanor. (People v. Souza, supra, 54 Cal.4th
at p. 123.) It did so here, concluding Juror No. 126 did not wish
to, and would ultimately be unable to, serve as a juror in a death
penalty case. That decision is fairly supported by the record. The
juror’s questionnaire responses were consistently equivocal. It
was clear she struggled to fully articulate her views and was
uncomfortable with the death penalty and with her potential
role in adjudicating it.
She provided a number of narrative responses in the
questionnaire adding further reflections on capital punishment.
Her views were discussed at length during voir dire. Her
discomfort appeared palpable, prompting the court to twice offer
her more time to reflect on her views. Both times she responded
by expressing doubt that she could serve as a death penalty
juror or vote for execution. Defendants’ complaint that the court
“short circuited” voir dire without sufficiently probing the juror’s
views is not well taken. A court must evaluate prospective jurors
individually as they present themselves. Some are more able
than others to express deeply held views and to make them
understood. “[M]any prospective jurors ‘simply cannot be asked
enough questions to reach the point where their bias has been
made “unmistakably clear,” ’ but ‘[d]espite this lack of clarity in
the printed record . . . there will be situations where the trial
judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law.’ ([ ]
38
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Witt[, supra,] 469 U.S. [at pp.] 424–426 . . . .)” (People v. Silveria
and Travis (2020) 10 Cal.5th 195, 258.) The court cannot
artificially truncate the process or foreclose legitimate inquiry,
but that did not occur here. The trial court carefully reviewed
the juror’s questionnaire responses and conducted thorough voir
dire. After assessing Juror No. 126’s demeanor in addition to her
written and verbal responses, it concluded she was not qualified
to serve. The court’s decision is supported by the record, and we
are presented with no reason to disturb it. (Ibid.)
ii. Peremptory Challenges
Defendants contend the prosecution’s use of peremptory
challenges violated Batson v. Kentucky (1986) 476 U.S. 79 and
People v. Wheeler (1978) 22 Cal.3d 258. The trial court found
there was no prima facie showing of discrimination. Although
we find this issue to be close, we conclude there was not a prima
facie showing on this record.
Three hundred and three panelists reported for evaluation
as potential jurors. After excusals for hardship or cause, a group
of 83 remained.15 Of that number it appears from the judge’s
notes that at least 16 panelists were African-American women.
The prosecution had exercised 12 challenges when the defense
made a Batson/Wheeler motion challenging its use of
peremptories against African-American women, “a cognizable
15
Our colleague in the dissent focuses on the 64 panelists
actually examined rather than the total number in the venire.
The discrepancy is significant. It is accurate to say that 64
panelists were examined. However, an advocate takes into
account all those who may come into the box for consideration.
All panelists are in play until the jury is finalized.
39
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
subgroup” for purposes of this analysis.16 (See People v. Clair
(1992) 2 Cal.4th 629, 652.) Of the 12 panelists excused at that
point, six were members of the identified group. In ruling on the
prima facie showing, the court stated it found nothing: “in the
nature of bias or prejudice” in the excusals, in light of the jurors’
questionnaire and voir dire responses. It concluded the
prosecution had “a right to preempt those people they have done
so far.”
The law is clear and firmly established. “ ‘Both the federal
and state Constitutions prohibit any advocate’s use of
peremptory challenges to exclude prospective jurors based on
race.’ ” (People v. Parker (2017) 2 Cal.5th 1184, 1210 (Parker).)
“ ‘Doing so violates both the equal protection clause of the
United States Constitution and the right to trial by a jury drawn
from a representative cross-section of the community under
article I, section 16 of the California Constitution.’ ” (Id. at p.
1211.) The law also recognizes “ ‘a rebuttable presumption that
a peremptory challenge is being exercised properly, and the
burden is on the opposing party to demonstrate impermissible
discrimination.’ [Citation.] ‘A three-step procedure applies at
trial when a defendant alleges discriminatory use of peremptory
challenges. First, the defendant must make a prima facie
showing that the prosecution exercised a challenge based on
impermissible criteria. Second, if the trial court finds a prima
16
Although at trial defendants challenged only the excusal
of African-American women, some briefing mentions panelists
from other protected categories. Our review is limited to the
motion actually made. (See People v. Bolin (1998) 18 Cal.4th
297, 317.) Accordingly, we examine the propriety of the
prosecution’s excusal of panelists from the group identified at
trial. (See People v. Rhoades (2019) 8 Cal.5th 393, 429, fn. 14.)
40
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
facie case, then the prosecution must offer nondiscriminatory
reasons for the challenge. Third, the trial court must determine
whether the prosecution’s offered justification is credible and
whether, in light of all relevant circumstances, the defendant
has shown purposeful race discrimination. [Citation.] “The
ultimate burden of persuasion regarding [discriminatory]
motivation rests with, and never shifts from, the [defendant].” ’ ”
(Ibid.)
When this jury was selected in 1995, there was some
confusion as to the nature of the required prima facie showing.
In People v. Johnson (2003) 30 Cal.4th 1302, 1306, we held: “to
state a prima facie case, the objector must show that it is more
likely than not the . . . challenges . . . were based on
impermissible group bias.” The United States Supreme Court
subsequently disapproved the “more likely than not”
formulation as setting too high a threshold. Instead, it explained
that Baston’s first step is satisfied if the objector produces
sufficient evidence to support an inference that discrimination
occurred. (Johnson v. California (2005) 545 U.S. 162, 170.) For
cases tried before Johnson v. California, we have “adopted a
mode of analysis under which, rather than accord the usual
deference to the trial court’s no-prima-facie case determination,
we ‘review the record independently to determine whether the
record supports an inference that the prosecutor excused a juror
on a prohibited discriminatory basis.’ ” (People v. Rhoades,
supra, 8 Cal.5th at pp. 428–429.) We apply that analytical
approach here and consider “ ‘all relevant circumstances’ ” in
doing so. (Id. at p. 429.)
“A court may . . . consider nondiscriminatory reasons for a
peremptory challenge that are apparent from and ‘clearly
established’ in the record [citations] and that necessarily dispel
41
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
any inference of bias.” (People v. Scott (2015) 61 Cal.4th 363,
384.) Here, the trial court found no prima facie case of
discrimination, and the prosecution was not asked to provide
any reason for its challenges. Accordingly, our review is
necessarily circumscribed.
In conducting our review “[w]e have identified certain
types of evidence as ‘especially relevant.’ ” (People v. Rhoades,
supra, 8 Cal.5th at p. 429.) These include: whether a party has
struck most or all of the members of the identified group from
the venire; has used a disproportionate number of strikes
against the group; or has only engaged the panelists in desultory
voir dire.17 (People v. Rhoades, at p. 429.)
Our independent review does not reflect the court erred.
First, the court was well aware of, and sensitive to, the issue.
17
People v. Rhoades also noted as “especially relevant”
factors “ ‘whether the defendant is a member of [the identified]
group, and whether the victim is a member of the group to which
a majority of remaining jurors belong.’ ” (People v. Rhoades,
supra, 8 Cal.5th at p. 429.) Those factors are not implicated
here. All three defendants and all victims are African-American
males. As we discuss in greater detail below, 10 of the
empaneled jurors were equally divided among African-
Americans and Whites, with the remaining two jurors being of
Hispanic descent. Flowers v. Mississippi (2019) 588 U.S. __, 139
S.Ct. 2228, 2243, a third stage Batson case, mentions two
additions to the list of especially relevant factors: comparing
panelists who were excused against those who were not, and
evaluating whether the prosecutor misrepresented the record in
defending the strikes. Because this is a first stage case, and the
prosecution was not asked to defend its strikes, these relevant
third stage factors are not at play here. Further we note that
defendants do not assert they were precluded from presenting
additional evidence or arguing the relevance of the Flowers
factors based on the record.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Indeed, during a later in-chambers discussion of another issue,
the court turned to the question of peremptory challenges,
inviting both sides to consider the appearance that their pattern
of challenges might convey to an observer. The court told both
sides to “be careful,” and elaborated: “I think your peremptories
are proper, but you are giving the appearance of [bias]. I am not
admonishing you. I’m just saying I’m sensitive to that on both
sides.”18
Turning to the pertinent “especially relevant” factors, the
record reveals the following. African-American women
comprised at least 19 percent of the 83 available potential
jurors. When the motion was made, African-American women
made up 26 percent of the 34 panelists who had been questioned.
Yet the prosecution used six of its first 12 challenges to excuse
them, a rate of 50 percent.19 Those numbers are important and
reflect an obvious disparity. But, as with most relevant factors,
they must be considered in context. (See Parker, supra, 2 Cal.5th
at p. 1212.) African-American women comprised 33 percent of
the jurors ultimately seated, a proportion which slightly
exceeded their representation among the 34 panelists who had
been questioned when the motion was lodged.
18
When the selected jurors were ultimately sworn the
defense had excused nine Whites, two African-Americans, three
Asian-Americans and one Hispanic. We emphasize that one
party’s Batson/Wheeler violation in no way excuses similar
misconduct by the other side. (See People v. Reynoso (2003) 31
Cal.4th 903, 926.) We note these figures only to provide context
for the court’s observations.
19
The other prosecution excusals were three White women,
one Asian-American man, one Hispanic man, and one Hawaiian
woman.
43
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Defendants rely on Williams v. Runnels (9th Cir. 2006)
432 F.3d 1102, 1107. While not binding precedent, opinions from
other jurisdictions may provide useful analytical approaches. In
Runnels “the prosecutor used three of his first four peremptory
challenges to remove African-Americans from the jury. In
addition, it appears that only four of the first forty-nine
potential jurors were African-American.” (Ibid.) Defendants
contend the strike rate in this case was greater than the 75
percent seen in Williams v. Runnels, and greater than that in
several other circuit court decisions. (See Paulino v. Castro (9th
Cir. 2004) 371 F.3d 1083, 1090 [83 percent]; Fernandez v. Roe
(9th Cir. 2002) 286 F.3d 1073, 1078 [57 percent removal rate];
Turner v. Marshall (9th Cir. 1995) 63 F.3d 807, 812–813 [56
percent]). Defendants are mistaken. As described above, the
strike rate here was 50 percent, not the 75 percent seen in
Williams v. Runnels, or the higher figures in the other federal
decisions. Far more tellingly, in Runnels, the state excluded
three out of four African-Americans, a rate over 9 times20 their
representation among panelists who had been examined. The
numbers here are not nearly as stark. It is true that, when the
motion was made, the district attorney had excused African-
American women at a rate higher than their representation
among those called to the box. That fact certainly is noteworthy,
however context remains informative.
Even a high exclusion rate does not invariably
demonstrate excusals were motivated by discriminatory
animus; other factors may also be relevant. In People v. Sánchez
20
Calculated by dividing the 75 percent strike rate by the
eight percent representation rate, yielding an exclusion rate of
9.4.
44
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
(2016) 63 Cal.4th 411, 439, the prosecution exercised four of 10
peremptory challenges against an identified group, only six of
whom were present in the venire, i.e., a 40 percent strike rate,
and a two-thirds removal rate. (Ibid.) After the defendant
challenged another juror from that group, six of 32 group
members, or 19 percent, remained in the venire, and only one
served on the jury. (Ibid.) Here as in Sánchez the rate of removal
was two-thirds: four of six jurors in that case, and six of nine
here. We also note the 40 percent strike rate in Sánchez was
marginally lower than the 50 percent rate here. Despite these
similar figures, we reasoned in Sánchez that even if the strike
rate “[c]onsidered alone . . . might suggest a discriminatory
purpose,” under the totality of the circumstances, the suggestion
was unsupported. (Ibid.)
While the exclusion rate is important, considered in
context it does not give rise to an inference the excusals were
motivated by racial bias for purposes of our independent
appellate review. (See Parker, supra, 2 Cal.5th at p. 1212.) Here
the prosecution ultimately accepted a jury with four African-
American women, a statistically higher figure than this
subgroup’s representation in the box. “ ‘While acceptance of one
or more black jurors by the prosecution does not necessarily
settle all questions about how the prosecution used its
peremptory challenges, these facts nonetheless help lessen the
strength of any inference of discrimination that the pattern of
the prosecutor’s strikes might otherwise imply.’ [Citations.] We
have previously held that the prosecutor’s acceptance of a jury
panel including multiple African-American prospective jurors,
‘while not conclusive, was “an indication of the prosecutor’s good
faith in exercising his peremptories, and . . . an appropriate
factor for the trial judge to consider in ruling on a Wheeler
45
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
objection . . . .” ’ ” (People v. Johnson (2019) 8 Cal.5th 475, 508;
see also People v. McDaniel (2021) 12 Cal.5th 97, 124 [“Despite
the relatively high rate of strikes against Black jurors at the
time of the motion, the final racial composition of the jury was
diverse and contained more Black jurors than jurors of any other
race”]; People v. Lenix (2008) 44 Cal.4th 602, 610, fn. 6.)
The rate of strikes following a Batson/Wheeler motion is
also a relevant consideration. (See People v. Johnson, supra, 8
Cal.5th at p. 507.) In People v. Reed (2018) 4 Cal.5th 989, 1000–
1001, we explained: “the prosecutor’s decision to strike one black
juror while accepting another who replaced her suggests that
nonrace related differences between the jurors, rather than race,
explain the prosecutor’s actions.” Similarly here, after
defendants’ motion, the female African-American panelist who
had been excused was replaced in the jury box by an African-
American woman who ultimately served as a juror.21 Although
the prosecution excused two African-American women after the
Batson/Wheeler motion, this case is quite different from Miller-
El v. Dretke (2005) 545 U.S. 231, 250, where the prosecution
merely made a “late-stage decision to accept a [single] black
panel member.” After the defendants’ Batson/Wheeler motion
here, the prosecution exercised four peremptory strikes before
passing the jury, leaving 19 strikes unused. 22 As we have
21
Two of the African-American women ultimately seated on
the jury had been members of the panel from an early point in
the jury selection process and were never the subject of a strike.
22
California Code of Civil Procedure, section 231,
subdivision (a) provides that, in a capital case, codefendants are
entitled to 20 joint challenges and 5 individual challenges each,
and the People are entitled to an equal total number. Here the
prosecution used 16 challenges and the defense 15.
46
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
previously concluded, “the fact that the prosecution accepted a
panel with [four African-American female] jurors when it had
enough remaining peremptory challenges to strike them
suggests that the prosecutor did not harbor bias against [the
identified group of] jurors.” (People v. McDaniel, supra, 12
Cal.5th at p. 124.) The prosecution also repeatedly excused
jurors who were not members of the identified group rather than
excusing a number of African-American women then in the box.
Also relevant in dispelling any inference of discriminatory
motive was the prosecutor’s repeated passing of two African-
American women who had been present in the box from nearly
the beginning of the selection process, and who ultimately
served on the jury. (See People v. Clark (2011) 52 Cal.4th 856,
906.) When advocates pass a challenge they evince a willingness
to accept the panel as constituted. The prosecutor here passed
the challenge when the group of 40 panelists seated or excused
contained several African-American women. (See People v.
Reed, supra, 4 Cal.5th at p. 1000.)
We have also observed: the selection of a jury is a fluid
process, with challenges for cause and peremptory strikes
continually changing the composition of the jury before it is
finally empaneled. As we noted in People v. Johnson (1989) 47
Cal.3d 1194: “[T]he particular combination or mix of jurors
which a lawyer seeks may, and often does, change as certain
jurors are removed or seated in the jury box. It may be
acceptable, for example, to have one juror with a particular point
of view but unacceptable to have more than one with that view.
If the panel as seated appears to contain a sufficient number of
jurors who appear strong-willed and favorable to a lawyer’s
position, the lawyer might be satisfied with a jury that includes
one or more passive or timid appearing jurors. However, if one
47
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
or more of the supposed favorable or strong jurors is excused
either for cause or [by] peremptory challenge and the
replacement jurors appear to be passive or timid types, it would
not be unusual or unreasonable for the lawyer to peremptorily
challenge one of these apparently less favorable jurors even
though other similar types remain. These same considerations
apply when considering the age, education, training,
employment, prior jury service, and experience of the
prospective jurors.” (Id. at p. 1220.)
We are mindful that the prosecution’s passing on the jury
as a whole did not occur until after the trial court’s statement to
the parties that, while their use of peremptories had been
proper, the court was aware the defense had accepted the jury
three times. It noted the defense had accepted some White
panelists and excused some African-American panel members,
“seven Black people [were] left on the jury,”23 and the case
involved three African-American defendants. The judge
continued, “In my court I want the appearance of fairness,” and
alerted the parties they were “on notice” that “[t]he appearance
of justice is as important as justice.”
This statement did not immediately follow the
Batson/Wheeler motion. It occurred during the in-chambers
discussion described at page 44, ante. Between the defendants’
motion and the in-chambers statement, several panelists were
excused: a White woman (by the defense); a Hispanic man (by
the prosecution); a for-cause excusal, race not reflected; an
23
The trial court appears to be mistaken about this fact; only
four African-American people, all women, were present on the
jury at the time the court addressed the parties.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
African-American woman (by the prosecution, following defense
acceptance); a Hispanic woman (by the prosecution, following
defense acceptance); an Asian man (by the defense); an African-
American woman (by the prosecution), and a White man (by the
defense).24 After the court’s later in-chambers comment, it
excused one more juror for cause, the defense exercised one
further peremptory challenge and all parties accepted the panel.
The court explicitly noted it considered all the
peremptories exercised by both sides to have been proper. We
need not question the trial court’s perspective in this regard; as
we have noted, in this unique context of review we are required
to consider the record independently. (People v. Rhoades, supra,
8 Cal.5th at pp. 428–429.) Here, the group of seated jurors
included four African-American women, one African-American
man, three White women, two White men, one Hispanic woman,
and one Hispanic man. As noted, the defense did not renew a
Batson/Wheeler motion after the prosecution’s excusals of
Panelist Nos. 107 or 109 or after it had passed on the jury. Nor
did the defense object to the composition of the jury as finally
constituted.
24
The last two African-American women excused were
Panelists Nos. 107 and 109. The former had been seated as a
juror on both felony and misdemeanor cases. These included a
capital case which hung 9–3 in the guilt phase and a child
molestation case the year before this one, which hung 8–4.
Panelist No. 109 was a court clerk in another department. The
judge began the colloquy by saying he knew her well and told
the group about her employment. Neither party asked her any
questions. The defense passed the challenge and the prosecution
excused her. The defense did not object to the use of either
peremptory.
49
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
People v. Battle is instructive by way of contrast. (Battle,
supra, 11 Cal.5th at p. 774.) There, an African-American
defendant was convicted by an all-White jury. His victims were
White and mitigation evidence was offered to prove defendant
was, himself, the victim of life-long discrimination. Here, all
defendants and victims were African-American, as were a
number of witnesses, along with five of the seated jurors. In
Battle, we found the jury’s composition “serve[d] as standalone
evidence to inform our step-one analysis,” and that it was
“particularly germane where the case was racially charged.”
(Ibid.) Even so, in light of the other circumstances, we concluded
the defendant’s “showing [did not] suffice to give rise to an
inference that discriminatory intent motivated [a juror’s]
excusal.” (Id. at p. 775.)
As in People v. Johnson, supra, 8 Cal.5th at page 510,
footnote 7, “[W]e need not resort to examining the record for
obvious race-neutral reasons for the prosecutor’s peremptory
strikes that would ‘ “necessarily dispel any inference of bias.” ’ ”
After independently examining the entire record, including the
trial court’s observations and the final jury composition, we
conclude the court acted within its discretion in denying
defendants’ Batson/Wheeler motion.
2. Evidentiary Issues
a. Admission of Hearsay
Newborn and Holmes argue the court erred in allowing
Bowen’s girlfriend, LaChandra Carr, to relate hearsay when
cross-examined about an inconsistent statement. Carr told the
grand jury she saw Newborn and Holmes at the hospital the
night of the murders. At trial, however, she claimed she spent
the entire night at home with Bowen’s mother. Admitting she
50
PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
told the grand jury something different, she stated: “The truth
is I really wasn’t there.” Asked to explain her prior testimony,
Carr said she “knew they were there from when [Bowen] called
[her] from the hospital. I just knew everyone who was there.”
The court denied defendants’ motion to strike these statements
as hearsay. Instead, it gave a limiting instruction that Carr’s
grand jury statements could be considered only for the purpose
of showing inconsistency with her current testimony.25
During further cross-examination, Carr repeated that
Bowen had called her from the hospital and said Newborn was
also there. The defense moved for a mistrial, arguing this
testimony related double hearsay. The court disagreed,
explaining that jurors would have to decide “whether what she
said is true, whether she was at the hospital” or not. It
instructed, however, that Bowen’s “alleged statements” to Carr
could not be used against any defendant.
Defendants renew their hearsay arguments here. A trial
court’s ruling on the admissibility of evidence, including “on the
hearsay nature of the evidence in question,” is reviewed for
abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690,
725.) The court’s rulings were within that scope.
25
Under some circumstances, a prior inconsistent statement
may be admissible not only for its impeachment value, but for
its truth. (People v. Guerra (2006) 37 Cal.4th 1067, 1144 [“Prior
inconsistent statements are admissible under [Evidence Code
section 1235] to prove their substance as well as to impeach the
declarant]; see Simons, Cal. Evidence Manual (2021) § 2:42, pp.
134–137; CALCRIM No. 318.) That general rule would not apply
here to encompass hearsay statements Carr attributed to
Bowen.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Carr’s testimony to the grand jury was admissible as a
prior inconsistent statement. A witness’s out-of-court statement
“is not made inadmissible by the hearsay rule if the statement
is inconsistent with his testimony at the hearing and is offered
in compliance with [Evidence Code] Section 770.” (Evid. Code, §
1235.) Evidence Code section 770, subdivision (a) in turn,
requires that the witness have “an opportunity to explain or to
deny the [inconsistent] statement” while testifying. Carr’s trial
and grand jury testimony were in direct conflict as to where she
was on Halloween night and what she knew, or did not know,
about the whereabouts of others. She was given an opportunity
to explain the inconsistency. In doing so, she related additional
out-of-court statements from Bowen. Defendants’ complaint,
that these later statements were hearsay, fails because it
appears they were not admitted for their truth. They were,
however, relevant to help the jury evaluate the credibility of
Carr’s attempt to reconcile her inconsistent accounts. She
claimed that she relied on them to infer that Holmes and
Newborn were there and, thus, explain her prior statement. The
trial court gave a limiting instruction admonishing the jury it
could not consider Bowen’s statements “against any defendant.”
Accordingly, Bowen’s statements were not admitted against any
defendant for the truth of their content. They were only to be
considered as to Carr’s credibility.26
26
Defendants also challenge the admission of Carr’s
testimony that Bowen had told her he was present at the Wilson
Street shootings “but he was no driver and he was no shooter.”
They contend this testimony violated Bruton, supra, 391 U.S.
123. The objection was not raised below and is not well taken
now. Bruton addressed “the powerfully incriminating
extrajudicial statements of a codefendant” who is jointly tried
and not subject to cross-examination. (Id. at p. 135; id. at p.
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Opinion of the Court by Corrigan, J.
b. Eyewitness Testimony
Holmes and McClain argue the admission of Gabriel
Pina’s eyewitness testimony violated their rights to due process.
No error appears.
On the night of the shootings, Gabriel Pina saw both the
driver of the lead car racing toward Wilson Street, and a man
who ran from the scene and got into a car. Pina later went to the
police and was shown several photo arrays. He picked a picture
of McClain as the driver in one group of photos but
acknowledged that the photograph showed his head tilted at a
different angle. He was then shown an image of McClain in a
newspaper, “folded . . . up” and “pretty far away,” and confirmed
the identification. Pina also picked Holmes’s photo as the man
who ran to a car after the shooting. He recognized Holmes
because of his facial features and scarring. Defendants each
unsuccessfully moved to suppress these identifications.
To determine whether the admission of identification
evidence violates due process, “we consider (1) whether the
identification procedure was unduly suggestive and
unnecessary, and, if so, (2) whether the identification itself was
nevertheless reliable under the totality of the circumstances,
136.) Here, the jurors knew that not all perpetrators were being
tried together. Indeed, Bowen had been severed from the case
and was not a codefendant. His statement, related during Carr’s
testimony, inculpated only himself. Further, testimony at trial
indicated that multiple cars carrying African-American men
drove through Wilson Street that night, dispelling any inference
that if Bowen neither drove nor shot defendants necessarily did.
There was no reason that Carr’s testimony about Bowen’s
involvement could have prejudiced defendants. For the same
reasons, any error in admitting the testimony was harmless.
(See People v. Watson (1956) 46 Cal.2d 818, 836.)
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
taking into account such factors as the opportunity of the
witness to view the suspect at the time of the offense, the
witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level
of certainty demonstrated at the time of the identification, and
the lapse of time between the offense and the identification.”
(People v. Cunningham (2001) 25 Cal.4th 926, 989; Manson
v. Brathwaite (1977) 432 U.S. 98, 104–107; Neil v. Biggers (1972)
409 U.S. 188, 199–200.) We note, however, that in a recent
decision evaluating the propriety of a jury instruction
concerning witness certainty, we observed “[t]here is [now] near
unanimity in the empirical research that ‘ “under most
circumstances, witness confidence or certainty is not a good
indicator of identification accuracy.” ’ ” (People v. Lemcke (2021)
11 Cal.5th 644, 665.) A procedure is unfair if it suggests in
advance the identity of the person police suspect. (People v.
Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa).) We defer to the trial
court’s factual findings but independently review its
determination whether an identification procedure was unduly
suggestive. (People v. Gonzalez (2006) 38 Cal.4th 932, 943.)
Reversal is not warranted unless there is a “substantial
likelihood of irreparable misidentification.” (Manson, at p. 108.)
“In other words, ‘[i]f we find that a challenged procedure is not
impermissibly suggestive, our inquiry into the due process claim
ends.’ ” (Ochoa, at p. 412.)
Holmes first challenges the procedure because the photo
arrays shown to Pina included two photographs of him. The
photographs showed Holmes at different ages and with different
haircuts, however. Pina selected only one of the photographs,
failing to identify Holmes in the other. Holmes also contends the
procedure was unduly suggestive because Pina initially made
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
only a hesitant identification of McClain, which he did not
confirm until after he was shown a newspaper photograph. 27
Pina contacted police after seeing the photo of a different
suspect on television. He then looked through six six-packs of
photographs, attempting to identify that other suspect. During
the process, he saw Holmes’s image, recognizing his distinctive
facial features and scarring. Pina got a good look at Holmes the
night of the shooting and saw him clearly. (See People
v. Cunningham, supra, 25 Cal.4th at p. 989.) He was especially
attentive to the men he saw given the unusual situation. He
gave an accurate description of the suspects’ hairstyles and
distinctive features. The challenged procedure was not unduly
suggestive, and it is not substantially likely that Pina
misidentified Holmes, particularly in light of all the additional
evidence. (See Manson v. Brathwaite, supra, 432 U.S. at pp.
104–107; Ochoa, supra, 19 Cal.4th at p. 412.)
McClain raises similar arguments. He contends the array
shown to Pina was unduly suggestive because, in the group
containing his picture, his photograph was darker than the
others and he was the only person with a gold chain and long
hair. The argument fails. In the six different photo arrays Pina
viewed many men had long hair, including two in the six-pack
with McClain’s photo. McClain also asserts the police showed
Pina a newspaper photo of him before the photographic array.
This assertion is contradicted by Pina’s grand jury testimony.
27
Holmes asserts that Pina made no identification when he
spoke to police on the night of the murders. In fact, he was never
asked to do so. Pina described the several cars that drove past,
but officers did not ask whether he could recognize any of the
drivers.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Pina testified he saw the newspaper photo after he saw McClain
in the lineup. Pina recognized a photograph in the array but
could not be certain of the identification because the man’s face
was tilted at a different angle than the man Pina saw. The six-
pack photograph also showed McClain’s hair in a ponytail, but
when Pina saw him his hair was loose. After Pina explained
these factors to investigators, he was shown the newspaper
photo, and immediately identified McClain.
The trial court did not err in denying McClain’s
suppression motion. “[F]or a witness identification procedure to
violate the due process clauses, the state must, at the threshold,
improperly suggest something to the witness — i.e., it must,
wittingly or unwittingly, initiate an unduly suggestive
procedure. Due process does not forbid the state to provide
useful further information in response to a witness’s request, for
the state is not suggesting anything.” (Ochoa, supra, 19 Cal.4th
at p. 413, italics added.) Ochoa addressed analogous
circumstances. The witness in Ochoa asked to see a suspect’s
profile after identifying him with some uncertainty from a
photographic lineup. (Id. at p. 412.) She was shown a single
image of Ochoa in profile but not shown profile views of any
other individuals whose pictures were in the lineup. (Ibid.) She
then confirmed her identification. We found no unfairness in the
procedure because it did not suggest in advance of the witness’s
identification the identity of the person suspected by the police.
(Id. at p. 413.) The same is true here. Pina was shown an
additional image of McClain only after he had selected
McClain’s photo. Indeed, the newspaper photograph here was
shown alongside other images, though Pina only paid attention
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
to McClain’s because it was the image he recognized.28 As in
Ochoa, police did not suggest McClain’s identity before Pina
identified him. (Id. at p. 413.)
Moreover, even if the procedure had been flawed, the
evidence was nevertheless admissible because this particular
identification was reliable under the totality of the
circumstances. (See Manson v. Brathwaite, supra, 432 U.S. at
pp. 104–107.) As with Holmes, nearly all considerations support
reliability. Pina testified that he had a clear view of McClain
because McClain drove up and down the street and stopped
directly under a streetlamp. Pina paid attention to the suspects
because of their odd behavior. McClain’s driving maneuvers, in
particular, were unusual. Pina described him as
“literally . . . reaching over the steering wheel to see” Pina and
his companion. Before the shooting began, Pina told his
girlfriend to hide if “something happens” and kept his focus on
the cars. Although Pina identified McClain one or two months
after the crimes, there was no indication the passage of time
impaired his ability to recall the events or make an
identification. Finally, Pina made “eye-to-eye” contact with
McClain, knew the angle of McClain’s head and the long, loose
hairstyle he wore on the night of the murders, and observed how
those particulars differed in the photographs he was shown. The
defense was able to thoroughly cross-examine Pina and delve
into factors bearing on the reliability of his identifications.
28
It is not clear whether the other images displayed in the
newspaper shown to Pina were of suspects involved in the
Halloween shooting. The photograph was not offered into
evidence by any party.
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Opinion of the Court by Corrigan, J.
Accordingly, the jury was well able to properly consider the
weight to give them.
c. Admission of Inflammatory Evidence
Defendants raise two challenges to the admission of
evidence about their uncharged misconduct. The governing law
is settled.
“ ‘Character evidence, sometimes described as evidence of
propensity or disposition to engage in a specific conduct, is
generally inadmissible to prove a person’s conduct on a specified
occasion. (Evid. Code, § 1101, subd. (a).) Evidence that a person
committed a crime, civil wrong, or other act may be admitted,
however, not to prove a person’s predisposition to commit such
an act, but rather to prove some other material fact, such as that
person’s intent or identity. (Id., § 1101, subd. (b).)’ ” (People v.
Leon (2015) 61 Cal.4th 569, 597.) “The relevance depends, in
part, on whether the act is sufficiently similar to the current
charges to support a rational inference of intent, common
design, identity, or other material fact.” (Id. at p. 598.) The
greatest degree of similarity is required to show identity, which
requires proof of enough distinctive features in common with the
charged offense to support the inference that the same person
committed both acts; the least similarity is necessary to
demonstrate intent. (Ibid.)
The next step is an evaluation of the evidence’s prejudicial
impact. (See Evid. Code, § 352.) “ ‘If evidence of prior conduct is
sufficiently similar to the charged crimes to be relevant to prove
the defendant’s intent, common plan, or identity, the trial court
then must consider whether the probative value of the evidence
“is ‘substantially outweighed by the probability that its
admission [would] . . . create substantial danger of undue
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
prejudice, of confusing the issues, or of misleading the jury.’ ” ’ ”
(People v. Leon, supra, 61 Cal.4th at p. 599.) The trial court’s
decision whether to admit uncharged misconduct evidence is
reviewed for abuse of discretion. (Id. at p. 597.)
i. Unadjudicated Arrest
McClain contends the court erred and violated his
constitutional rights in admitting evidence that on September
12, 1992, he was arrested with Bowen for weapon possession.29
Any asserted error was harmless.
The prosecution offered the evidence to demonstrate
McClain’s connection with other codefendants more than a year
before the charged crimes. In particular, he argued the arrest
showed McClain and Bowen had access to weapons. McClain
countered that the arrest was for a different crime and involved
different weapons from those used in the Halloween shootings.
He offered to stipulate that he and Bowen were acquainted. The
court admitted the evidence, explaining it was relevant, in part,
to show McClain’s access to weapons.
We need not discuss the merits of defendant’s challenge.
Even if we were to find error, admission of the evidence was not
unduly prejudicial. A consideration of impermissible prejudice
that might flow from otherwise relevant evidence evaluates how
inflammatory the uncharged act is when compared to those
charged. Whether the uncharged act was not previously
adjudicated is also a relevant consideration. (People v. Ewoldt
(1994) 7 Cal.4th 380, 405.) McClain’s weapons possession arrest
29
McClain’s related claim that the prosecutor committed
misconduct during closing argument by referencing his
unadjudicated arrest is addressed post, at pages 84 to 85.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
was far less inflammatory than the murders here. (Ibid.) Any
prejudicial impact of the evidence was further dissipated by the
jury instructions that the uncharged act could not to be
considered as proof of McClain’s bad character or criminal
disposition.
ii. Gang Evidence
Holmes and McClain also challenge the admission of
evidence regarding gang affiliation. Although conceding some of
this evidence was relevant, they contend the quantity and
emotional impact of the gang evidence was unduly prejudicial
depriving them of a fair trial and due process. The evidence was
properly admitted.
Holmes complains the evidence connecting him with the
P-9 gang was more tangential than that offered against his
codefendants. However, Mario Stevens identified him as a P-9
member , and Derrick Tate testified that Holmes wore a hat that
said “P-9.” There was some contrary evidence, including
McClain’s testimony that Holmes was not a member of the gang.
However, the jury was equipped to weigh all the testimony and
decide the question for itself.
McClain did not dispute his membership. Instead, he now
argues the introduction of gang evidence against him was
cumulative and unduly prejudicial. McClain did not lodge an
objection on this basis at trial. Throughout the briefing
defendants raise a number of claims that were not preserved
below. The general rule is that a failure to object in the trial
court waives the right to asset error on appeal. 30 (See People v.
30
For examples of exceptions to this general rule see ante,
page 19, footnote 9.
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Opinion of the Court by Corrigan, J.
Dykes (2009) 46 Cal.4th 731, 756 (Dykes).) However,
particularly in capital cases, we often choose to address even a
waived claim on the merits. Here we will not repeat the general
rule in each instance in order to avoid tedious repetition. We will
note any failure to object at trial and cite authority for the
waiver rule. By noting that state of the record, and citation to
supporting authority, we invoke the general waiver principle.
McClain’s lately-asserted challenge also lacks merit.
Although evidence of gang membership carries the potential for
prejudice, it “ ‘is often relevant to, and admissible regarding, the
charged offense. Evidence of the defendant’s gang affiliation —
including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries,
and the like — can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.’ ” (People v. Becerrada
(2017) 2 Cal.5th 1009, 1022.) Given the circumstances of the
shootings, which were clearly intended as gang retaliation,
defendants’ membership was highly relevant to prove their
involvement, motive, and intent to kill. The prosecution had a
right to present the evidence, notwithstanding McClain’s failure
to contest it.
Defendants also claim the court abused its discretion in
allowing witnesses to testify about gang-related threats.
DeSean Holmes told the jury he was afraid to testify because his
life had been threatened. He described threats made to his
mother, coach, and others. Derrick Tate testified about threats
to his mother and grandmother and admitted he feared for his
own safety. Willie McFee gave similar testimony. He had
received death threats over a year and a half and believed they
came from gang members. The prosecution also played a tape in
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Opinion of the Court by Corrigan, J.
which McFee told police about receiving anonymous,
threatening phone calls.
Defendants objected to some of this evidence on hearsay
grounds but did not raise an objection under Evidence Code
sections 1101 or 352.31 The claims are both forfeited (Dykes,
supra, 46 Cal.4th at p. 756) and meritless. “Evidence that a
witness is afraid to testify or fears retaliation for testifying is
relevant to the credibility of that witness and is therefore
admissible.” (People v. Burgener (2003) 29 Cal.4th 833, 869; see
Simons, Cal. Evidence Manual, supra, § 3.47, pp. 290–291.)
Testimony about threats the witnesses and their family
members received also supported the prosecution’s theory that
the shootings were committed by gang members and motivated
by gang-related concerns. These were legitimate purposes. The
evidence’s probative value was not outweighed by any undue
prejudice to defendants. The testimony was not particularly
inflammatory, and the witnesses did not identify the people, or
even the gang, making the threats.
Finally, Holmes and McClain argue expert Derrick
Carter’s testimony about gangs, in particular a list of P-9 gang
members, was irrelevant and inflammatory. Neither objection
was raised below (Dykes, supra, 46 Cal.4th at p. 756), and the
forfeited claims would fail on the merits. Evidence about gang
activity, and the defendants’ gang membership, was highly
relevant given the apparent gang-related motivation for the
31
Defendants do not renew their hearsay arguments here.
After the objection to Tate’s testimony, the court admonished
the jury that statements about his motivation for testifying were
not offered for truth and could be considered only with regard to
his state of mind.
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Opinion of the Court by Corrigan, J.
murders. The court did not abuse its discretion in admitting
expert testimony on the subject. Defendants’ criticisms about
the content of Carter’s testimony address the weight of that
evidence, not to its admissibility. The jury was entitled to
consider this evidence, along with Carter’s credibility, and was
properly instructed how to do so. (See CALJIC No. 2.20.)
d. Restrictions on Cross-Examination
i. DeSean Holmes
Newborn alleges his rights to due process and
confrontation were violated on five occasions when he was not
permitted to cross-examine DeSean Holmes as fully as he
wished. Holmes and McClain join these claims but assert no
additional arguments of their own. The rulings were within the
court’s discretion. Considered individually and cumulatively,
these reasonable limits on cross-examination did not infringe
defendants’ constitutional rights.
Newborn first claims he was prevented from questioning
DeSean about a prior arrest. In February 1995, DeSean
burglarized Willie McFee’s home. By the time DeSean was
arrested for the burglary two months later, he was already
incarcerated for a separate, unspecified offense. After DeSean
testified to these facts, the court sustained an objection to
further questioning about the offense for which DeSean was
incarcerated without an offer of proof as to relevance. None was
made, and Newborn’s attorney moved to a different line of
inquiry. Newborn now complains further cross-examination
would have demonstrated the nature and magnitude of
DeSean’s bias. But his failure to make an offer of proof as to the
impeachment evidence that might have been elicited, despite
the court’s express invitation to do so, forfeits the issue on
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Opinion of the Court by Corrigan, J.
appeal. (See People v. Valdez (2004) 32 Cal.4th 73, 108.) Nor is
there any suggestion such an offer would have been futile.
Indeed, the court solicited additional information to assist its
evaluation. Newborn offered none below and does not do so here.
The court reasonably exercised its discretion (People
v. Quartermain (1997) 16 Cal.4th 600, 623) to limit cross-
examination on a witness’s unrelated prior offense, particularly
when presented with no additional offer of proof or further
argument.
Newborn next claims he was unable to explore whether
DeSean tried to gain favor with law enforcement by falsely
attributing a double homicide to Danny Cooks and Ernest
Holly.32 Newborn tried to show that DeSean identified Cooks
and Holly because he was dating Holly’s ex-girlfriend. Yet the
record demonstrates Newborn was able to elicit precisely the
testimony he sought. After a relevance objection, Newborn
rephrased his question and DeSean testified that he had been
dating Holly’s ex-girlfriend around the time he implicated Cooks
and Holly in the homicides. Newborn complains he was
prevented from seeking further details but identifies no ruling
that so limited him. More importantly, he fails to explain how
additional information about the relationship would have been
probative. The essential facts establishing DeSean’s asserted
motive to falsely accuse someone else of murder were before the
jury.
Newborn’s third allegation of deficient cross-examination
concerns DeSean’s testimony about another shooting. In
32
Cooks and DeSean were connected in criminal activity
unrelated to this case. Holly was one of the men Tate accused of
participating in the Halloween shootings.
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
response to Newborn’s questioning, DeSean said he sought
protective custody in September 1995 because he “was the
victim of a shooting.” Newborn elicited extensive testimony
about the case, with DeSean twice asserting he was a “victim.”
In concluding this line of questioning, Newborn asked, “just for
clarification, so you don’t mislead the judge, the shooting case
where you say you were the victim, nobody shot at you, did
they?” DeSean replied, “Yes.” The court denied a motion to
strike but precluded further questioning on the subject. The
next day, Newborn made an offer of proof that DeSean was not
a victim but instead drove the car from which shots were fired,
although he did not know his passenger intended to shoot. The
shooting victim was DeSean’s close friend. The prosecutor
explained that DeSean felt victimized because he was surprised
by the passenger’s assault on his friend. The court repeated that
the incident could not be probed further but noted the parties
could stipulate DeSean was not a victim. This ruling was proper.
The court “ ‘retains wide latitude in restricting cross-
examination that is repetitive, prejudicial, confusing of the
issues, or of marginal relevance.’ ” (People v. Linton (2013) 56
Cal.4th 1146, 1188.) Newborn made his point that DeSean was
not the target of gunfire, despite having characterized himself
as a victim. Further questioning on this unrelated incident, and
why DeSean may have felt victimized, would have consumed
time on matters that were only marginally relevant. Because
Newborn has not shown that the prohibited cross-examination
would have produced “ ‘a significantly different impression of
[DeSean’s] credibility,’ ” there was no Sixth Amendment
violation. (People v. Williams (2016) 1 Cal.5th 1166, 1192.)
Next, Newborn claims he could not examine DeSean
sufficiently about an alleged carjacking and the murder of
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PEOPLE v. HOLMES, McCLAIN and NEWBORN
Opinion of the Court by Corrigan, J.
Majhdi Parrish, a witness to that offense. DeSean claimed he
was afraid to testify because Parrish had been killed after
testifying in a carjacking case, and Newborn wanted to elicit
that DeSean himself had committed the carjacking. The court
ruled both sides could ask about the incident. Although
DeSean’s attorney had warned that DeSean would invoke his
Fifth Amendment privilege if asked about the carjacking,
Newborn pursued this line of questioning nevertheless. When
DeSean said he had heard of witnesses being killed, Newborn
asked if Majhdi Parrish was that witness. DeSean invoked the
Fifth Amendment. The court overruled his privilege claim and
instructed him to answer. DeSean testified that he had heard
about Parrish’s death. Newborn’s attorney then sought to ask
whether DeSean was “innocent or guilty” of the carjacking,
whether he was concerned about Parrish’s death, and whether
Parrish was a “complaining victim.” Objections were sustained
to each question after DeSean again invoked his Fifth
Amendment privilege. Newborn complains these rulings
prevented him from establishing DeSean’s motive to help the
prosecution and avoid liability for the crime against Parrish.
The claim fails because Newborn’s assertions were refuted by
other testimony. Detective Brown testified that Parrish had
been killed while DeSean was in custody and DeSean was not a
suspect in that homicide. The evidence showed DeSean’s single
felony conviction was for the burglary of McFee’s home. To the
extent Newborn hoped to show that DeSean was responsible for
Parrish’s death, the record is to the contrary. It is not evident
that further questioning on these matters would have yielded
useful impeachment evidence. No confrontation error occurred.
(See Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.)
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Finally, Newborn claims the court prevented him from
adequately addressing DeSean’s civil lawsuit against the
Pasadena Police Department. DeSean testified that he was not
honest in his initial police interview because he did not believe
the department was trustworthy and he had a lawsuit pending
against it. Newborn now complains he should have been allowed
to demonstrate DeSean’s motive to somehow advance this civil
suit by testifying for the prosecution. It appears Newborn
adequately covered the point. Although the prosecution twice
objected to questions on this topic, the questions were rephrased
and DeSean gave answers. Newborn’s counsel chose to move on.
Even if more questions had been asked, it is not clear what
additional evidence could have been adduced. DeSean was
unclear about the nature of the lawsuit, its existence, or the
identity of his attorney. Had such a suit been filed, it would be
a matter of public record. But no offer of proof was made in that
regard. The cross-examination was sufficient, and Newborn
suffered no constitutional deprivation in connection with it.
ii. Robert Price
McClain argues the court improperly prevented him from
asking Robert Price about a prior arrest. Price testified that
McClain shot him in the face and back at the Community Arms
apartment complex. He agreed on cross-examination that he
was given $200 before his grand jury testimony but explained
the money was for his travel and medical expenses. He also
received $100 to pay for a medical evaluation of whether a bullet
could be removed from his leg, potentially producing ballistics
evidence. On redirect, Price was asked about his motivations for
testifying. He responded that he knew one victim’s parents. The
killings had “touched” him, and he wanted to see those
responsible convicted. On recross-examination, McClain sought
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Opinion of the Court by Corrigan, J.
to elicit whether Price had been arrested for lewd and lascivious
conduct on a minor. The court sustained a prosecution objection
and prohibited further questioning about Price’s arrest. This
ruling was within its discretion.
A trial court abuses its discretion when it acts arbitrarily,
capriciously, or absurdly, causing a miscarriage of justice.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The court’s
decision here was measured. The prosecutor and McClain’s
attorney agreed that “an arrest is [not] evidence of anything.”
After hearing from the parties, the court considered the question
and reasonably concluded Price’s testimony did not open the
door to impeachment questions based on an unrelated arrest.
Moreover, Price had been amply impeached. In addition to
describing the money he received before his grand jury
testimony, Price admitted convictions for five felonies and
membership in the Crips gang. He testified that he had been
drinking on the day he was shot and initially lied to police about
the shooter’s identity because he wanted to retaliate personally.
Additional inquiry into an unadjudicated arrest would have
added little to these substantive admissions.
McClain also argues the ruling violated his right to
“effective” confrontation, citing Davis v. Alaska (1974) 415 U.S.
308, 318. He argues for the first time here that testimony about
Price’s arrest could have illuminated why Price wished to
implicate McClain, or why McClain shot Price. McClain had an
opportunity to make an offer of proof at trial and did not do so.
Indeed, his attorney agreed with the prosecutor that, absent an
offer of proof, it was improper to impeach Price with the arrest.
McClain now argues the court created a confrontation problem
by permitting the prosecutor to elicit that Price was friendly
with a victim’s parents and wanted to see retribution for the
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Opinion of the Court by Corrigan, J.
child’s murder. However, McClain could have cross-examined on
this point but chose not to. There was no confrontation violation.
e. Witness Sequestration
Holmes and Newborn raise several claims regarding the
overnight sequestration of prosecution witness LaChandra
Carr. We reject them.
i. Background
As noted, Carr’s trial and grand jury testimony differed.
She told the grand jury that she saw Newborn and Holmes at
the hospital the night of the murders. At trial she disavowed
those statements and denied being there. Carr’s trial testimony
was also evasive. She said she was contacted by police “a
hundred million times,” yet she claimed to “remember nothing”
about those conversations and refused to give direct answers
about her previous statements. 33 Eventually, the court
interrupted the questioning and admonished Carr that “three
young men are facing the death penalty.” The court continued,
33
For example, questioned about one statement, Carr
testified:
“A: I said that?
“Q: Do you recall using those words?
“A: No.
“Q: Do you want to look at the transcript of what you
said?
“A: It have to be there if you said it, but I don’t
remember saying it.
“Q: You don’t remember saying those words?
“A: No.
“Q: Well, could you have said those words?
“A: I probably have.”
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“These jurors are here, these lawyers are doing their job and you
think this is cute, so I will tell you what — .” Carr interrupted,
asking, “How is it cute when I am telling the truth?” The court
responded, “Listen to me: I will put you in jail. What we are
going to do, we will stop the proceedings tonight. You think
about how cute these proceedings are.”
Outside the presence of the jury and defendants, the court
held a hearing with all counsel to determine whether to detain
Carr overnight, noting there was reason to think she would not
return to court in the morning. Addressing Carr, the court
explained, “This is a very serious case. You don’t think it is. I do,
and so what I am going to do is keep you in custody and make
sure you return tomorrow. [¶] If you think you are helping either
side here, you’re not. What you are doing is acting like this is for
you. [¶] . . . The defendants’ lives are at stake and we have . . .
three people who are already dead. [¶] . . . [Y]ou are sitting there
acting like you don’t care and you don’t want to answer any
questions, and I am not going to tolerate it.” Finding good cause,
the court ordered Carr into the custody of District Attorney
investigators to be secured as a material witness. Carr “was
placed in a motel” overnight and finished her testimony the next
day.
ii. Discussion
Holmes and Newborn first contend Carr’s sequestration
violated section 1332 because there was insufficient cause to
believe she would fail to appear.34 They assert the detention
34
Section 1332 provides, in pertinent part, that “when the
court is satisfied, by proof on oath, that there is good cause to
believe that any material witness for the prosecution or defense
. . . will not appear and testify . . . the court may order the
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likely coerced Carr into giving testimony favorable to the
prosecution. Defendants lack standing to assert violations of
another person’s statutory or constitutional rights.35 (People v.
Boyer (2006) 38 Cal.4th 412, 444.) Accordingly, we evaluate any
coercive effect of the detention not by determining whether
“some constitutional transgression” occurred against Carr, but
by assessing whether some misconduct improperly affected the
nature of her testimony. (Ibid.) This determination is based on
the entire record, with deference to the trial court’s credibility
determinations where supported by substantial evidence. (Ibid.)
Holmes and Newborn cite no evidence of coercion, and our
independent review reveals none. Carr’s own testimony belies
the assertion. Returning to court the next day, Carr again
repudiated her grand jury testimony. She explained that she
had not been at the hospital and did not know why she had ever
said defendants were there. She could only surmise that she
thought they were present based on Bowen’s phone call. This
testimony favored the defense, not the prosecution.
Defendants also argue their absence from the detention
hearing was reversible error. A criminal defendant has federal
and state constitutional rights to be present at a critical stage of
witness to enter into a written undertaking to the effect that he
or she will appear and testify at the time and place ordered by
the court or that he or she will forfeit an amount the court deems
proper.” (§ 1332, subd. (a).) “If the witness required to enter into
an undertaking to appear and testify . . . refuses compliance
with the order . . . the court may commit the witness . . . to the
custody of the sheriff.” (§ 1332, subd. (b).)
35
We note that a witness’s mere evasiveness does not
constitute good cause under section 1332, and, to the extent the
trial court based its decision solely on her evasiveness, it acted
improperly.
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the proceedings. (People v. Perry (2006) 38 Cal.4th 302, 311.)
The proceeding must be “critical to the outcome of the case,” and
the defendant’s presence must “contribute to the fairness of the
proceeding.” (Id. at p. 312.) Neither condition was met here.
First, Carr’s detention hearing was not critical to the case and
in fact, had no bearing on its outcome. Defendants do not
attempt to show otherwise. They focus instead on the second
requirement, arguing that because they were personally
acquainted with Carr they could have advised their attorneys as
to how the hearing was likely to make her favor the prosecution.
This argument fails as well. As discussed, Carr did not change
her testimony in any way that favored the prosecution. Further,
“a defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the
outcome of the case, because the defendant’s presence would not
contribute to the fairness of the proceeding.” (Ibid.) Defendants
point to nothing in the record to suggest their attorneys were
not fully equipped to detect or respond to any potentially
coercive aspects of the hearing. No specialized knowledge of this
witness was necessary for counsel to represent their clients’
interests. Accordingly, defendants’ absence from the hearing
resulted in no error.
3. Sufficiency of Evidence
Each defendant makes multiple challenges to the
sufficiency of the evidence supporting his convictions. When
considering such a challenge, “ ‘we review the entire record in
the light most favorable to the judgment to determine whether
it contains substantial evidence — that is, evidence that is
reasonable, credible, and of solid value — from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” (People v. Edwards (2013) 57 Cal.4th
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658, 715, quoting People v. Lindberg (2008) 45 Cal.4th 1, 27.)
We consider “ ‘whether . . . any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.’ ” (Edwards, at p. 715, quoting Jackson v. Virginia (1979)
443 U.S. 307, 319.) “[A] reviewing court ‘presumes in support of
the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ ” (Edwards, at p. 715,
quoting People v. Kraft (2000) 23 Cal.4th 978, 1053.) The same
standard of review applies to the sufficiency of the evidence
supporting special circumstance findings. Substantial evidence
supports each of the convictions.
a. Attempted Murder of Price
McClain argues his conviction for the attempted murder
of Robert Price cannot stand because it was based entirely on
unreliable testimony from Price, “a Crip gang member and
convicted felon who never told the same story twice.” Price
testified that McClain approached him at the Community Arms
apartment complex, used a gang-related slur, and shot him. He
explained that he did not identify McClain when interviewed by
police that evening because he had hoped to retaliate against
McClain directly. Price’s credibility was a matter for the jury to
assess, and a reasonable trier of fact could have credited his
testimony. Indeed, McClain conceded that he was at the
Community Arms complex the night Price was shot. McClain’s
closing argument featured the same attacks on Price’s
credibility he now makes on appeal. The jury heard, and
apparently rejected them.36
36
McClain also argues the attempted murder conviction
cannot form the basis of his death sentence in light of the special
need for reliability in capital sentencing. Because we have
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Opinion of the Court by Corrigan, J.
b. Conspiracy
Holmes and McClain argue there was insufficient
evidence of their conspiracy to commit murder. “A conviction of
conspiracy requires proof that the defendant and another person
had the specific intent to agree or conspire to commit an offense,
as well as the specific intent to commit the elements of that
offense, together with proof of the commission of an overt act ‘by
one or more of the parties to such agreement’ in furtherance of
the conspiracy.” (People v. Morante (1999) 20 Cal.4th 403, 416;
People v. Johnson (2013) 57 Cal.4th 250, 257.) Defendants
challenge the evidence supporting both the agreement and overt
act requirements. The evidence was sufficient.
Both defendants assert the prosecution improperly relied
on their gang membership in lieu of proving a conspiracy.
Standing alone, a gang’s general agreement to fight rivals may
not suffice to support a particular conspiracy charge (see U.S.
v. Garcia (9th Cir. 1998) 151 F.3d 1243, 1247). Here, the
prosecution presented ample evidence that violence against the
victims was both prearranged and carried out.
Holmes does not dispute that he went to the hospital after
learning Fernando Hodges had been shot. He argues his mere
presence there was insufficient to show that he entered a
conspiracy. But the evidence was more extensive. The jury
heard testimony that a crowd of 20 to 30, which included
Holmes, had gathered. Most appeared to be gang members.
They were quiet, seemed to be awaiting instruction, and did not
attempt to go inside the hospital as ordinary visitors would do.
concluded no error infects the attempted murder conviction,
nothing about this conviction requires reversal of McClain’s
death sentence.
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The prosecution argued a plan was formulated in this group to
avenge Hodges’s death by killing Crips. After the crimes,
Holmes told Derrick Tate that he and others committed the
Wilson Street murders in retaliation for the Hodges shooting.
This evidence was sufficient to support a finding that Holmes
entered an agreement to find and harm members of the Crips
gang. (See People v. Morante, supra, 20 Cal.4th at p. 416.)
McClain challenges the evidence supporting his entry into
a conspiracy because, unlike Holmes, he was not at the hospital
after Hodges’ shooting. Even so, substantial evidence supports
the jury’s conclusion that McClain joined in an agreement to
commit the crimes and did so. (See People v. Morante, supra, 20
Cal.4th at p. 416.) McClain testified that even before Hodges
was taken to the hospital, he heard Hodges had been shot by
“some Crips.” While others gathered at the hospital, McClain
paged his fellow P-9 members, alerting them that he planned to
search for Crips to shoot. McClain now argues his assertedly
lone search for Crips to harm does not support a finding of
conspiracy. The jury may not have credited his testimony,
however, in light of evidence that he was with those involved in
the Wilson Street shooting. Eyewitness Gabriel Pina testified
that he saw McClain peering through the front window of one of
the four cars involved in the shooting. The same eyewitness saw
Holmes return to his nearby car after the shots were fired.
Shortly thereafter, McClain bragged that he and others had “put
in some work” on some Crips at Wilson Street. The evidence
showed McClain intended to go out that Halloween night to kill
Crips, informed fellow gang members of that plan, and
ultimately rode around with them looking for victims. These
facts support a finding of conspiracy to commit murder, as the
jury concluded.
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Holmes and McClain also argue there is insufficient
evidence of an overt act. “Under our statute, an agreement to
commit a crime, by itself, does not complete the crime of
conspiracy. The commission of an overt act in furtherance of the
agreement is also required.” (People v. Johnson, supra, 57
Cal.4th at p. 259.) There was evidence of multiple overt acts.
At some point during the evening, Newborn went to
McFee’s house looking for known Crips member “Crazy D.” A
bulge beneath his clothing suggested Newborn was armed.
McFee saw four men running down the street, followed minutes
later by several gunshots. Some shots appeared to come from
near Crazy D’s home, and one struck McFee’s own residence.
McFee’s testimony was corroborated by his roommate, Charles
Baker, and by physical evidence, including shell casings found
in front of McFee’s house and across the street. Ballistics
evidence linked the ammunition used in this shooting with that
used on Wilson Street. Newborn also told DeSean Holmes that
he shot at McFee’s house with a nine-millimeter Glock,
consistent with the shell casings found there. 37
Nevertheless, defendants contend the jury could not
properly have found that they were involved in a 9:00 p.m.
shooting at McFee’s home because emergency call reports did
not log a shooting complaint from that location until 1:00 a.m.
They insist the McFee shooting could not have been in
furtherance of the Wilson Street attack because it happened
later. This argument fails. An officer testified that the log
reflects when the call was made. But the log does not indicate
when the shots complained of were actually fired. It does not
37
Although DeSean claimed to have no direct memory of this
conversation at trial, he told police about it when interviewed.
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Opinion of the Court by Corrigan, J.
necessarily correlate with the time shots were fired. Baker, who
was present at McFee’s home, testified that the shooting
happened around 9:00 p.m. He recalled it was “fairly early” in
the evening because McFee’s son was still awake. The jury could
have credited this testimony and rejected the contrary timing
suggested by the call log.
Additional evidence of overt acts was presented in
testimony about the Wilson Street shootings. Four or five cars
sped past the victims. Each car contained several Black men
who displayed P-9 gang signs. One shooting victim wore a blue
bandana, which caused defendants to mistake the group for
Crips.38 McClain told Mario Stevens that he and others had shot
Crips on Wilson Street.39 The Wilson Street shooters fired from
behind bushes. When Holmes told Derrick Tate he had
committed a murder to avenge Hodges’s death, he said he had
jumped from some bushes, yelled, “Trick[-]or[-]treat,” and began
firing. One of the victims heard an assailant say, “Now, Blood,”
the same epithet Robert Price testified McClain had used during
the attempted murder three days earlier. The jury could have
reasonably credited this evidence, which is sufficient to
38
Other victims wore or carried black bandanas, not
associated with the Crips gang.
39
Immediately after Stevens so testified, McClain said, “You
are a lying ass piece of shit, man. You are lying through your
teeth, man.” The court advised McClain that he would have an
opportunity to cross-examine the statement and present
evidence, if he wished, to challenge that testimony. The
prosecution requested the court admonish the jury to disregard
the outburst, and the court advised the jury that McClain’s
statements were “not evidence at this time.”
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demonstrate that the conspirators committed overt acts. (See
People v. Johnson, supra, 57 Cal.4th at p. 259.)
c. Wilson Street Murders and Attempted Murders
Holmes and McClain argue insufficient evidence
supported their convictions for the murders and attempted
murders on Wilson Street.40 The evidence was sufficient.
A number of witnesses connected Holmes and McClain to
both planning and motive. Their friend and fellow gang member
had been killed earlier that night by a rival gang. McClain
testified that he called P-9 members to tell them he intended to
seek revenge. Although the victims were children, not Crips, one
of them had a blue bandana, a Crips symbol, visible in his pocket
when defendants saw them. Holmes concedes he was at the
hospital where Hodges was taken and where a number of people,
including Newborn and Bowen, gathered to discuss retaliation.
Eyewitness Pina connected both Holmes and McClain to
the Wilson Street shooting. A car drove up and idled near Pina
who got a good look at the driver and later described him. The
lead car then drove toward the remaining cars and someone
from the crowd spoke to the driver. Shots erupted moments
later. Afterward, Pina saw Holmes run toward the parked cars.
Some days later, he went to the police station and identified
McClain as the driver of the lead car and Holmes as one of the
men who ran to the parked cars after the shooting.
40
The jury was properly instructed on first-degree murder
(CALJIC No. 8.20) and attempted murder (CALJIC No. 8.66).
Specifically, the jury was instructed that attempted murder
required proof of a “direct but ineffectual act” done by a person
in an effort to kill another, with “malice aforethought,” meaning
“a specific intent to kill.”
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Evidence of defendants’ statements also tied them to the
crimes. Derrick Tate testified that Holmes also bragged about
having been involved in the shooting, saying he wanted to get a
hat made to commemorate the event. Holmes had confessed his
involvement to Tate, explaining the details of the crime and its
vengeful purpose. The day after the shooting, McClain told
Mario Stevens “him and his homeys had went down there on
Wilson and shot some — some Crips.”
McClain’s actions after the crimes also pointed to his
involvement. His cousin, James Carpenter, told police McClain
had talked about committing the murders and became nervous
upon learning the victims had been children. Thereafter,
McClain cut his hair and left town, telling a fellow passenger he
was flying under a fake name and had recently cut his hair. The
passenger recalled his ticket was under the name Robert, with
a last name like McCain or McClain, though he had given her a
pager number with the name “Herb.”
Finally, defendants raise a number of additional
sufficiency arguments. All fail. McClain asserts his conviction is
based on informant testimony given after deals were made. This
fact alone does not render the evidence deficient. The jury was
aware of agreements but remained entitled to credit the
testimony. Holmes asserts that LaChandra Carr’s testimony
failed to connect him with the Wilson Street shooting because,
although he was at the hospital gathering, no evidence indicates
he spoke with Newborn and Bowen or formed a plan to retaliate
for Hodges’s death. However, the jury could have inferred such
planning from his admitted presence, particularly in light of the
ample additional evidence of his involvement. Holmes also
argues Derrick Tate’s testimony that he bragged about the
shooting was unreliable because, though they were not
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Opinion of the Court by Corrigan, J.
incarcerated at the time, Tate should be treated as an
“inherently suspect” jailhouse informant. Putting aside the
factual mischaracterization of Tate’s status, this court has
“consistently rejected claims that the testimony of jailhouse
informants is inherently unreliable.” (People v. Hoyos (2007) 41
Cal.4th 872, 898.) As we have explained, there must be a “legal
ground for exclusion of otherwise relevant evidence.” (People v.
Hovarter (2008) 44 Cal.4th 983, 996.) 41 Holmes identifies none.
d. Personal Use of Firearm
Holmes contends insufficient evidence supports the jury’s
true finding of personal firearm use. (§ 12022.5, subd. (a).) As to
each count of murder and attempted murder, the jury found that
Holmes “personally used a firearm, to wit, a handgun.” He
argues the only evidence supporting the enhancement should be
discounted as unreliable. Substantial evidence supports the
jury’s conclusions. (See People v. Edwards, supra, 57 Cal.4th at
p. 715.) Derrick Tate testified that Holmes admitted he was a
killer. Holmes told Tate that he and others had “blasted” after
jumping from some bushes. Holmes argues this testimony
should be discounted because Tate was a felon who spoke with
police to gain favor or reward money. In fact, though Tate was
given transportation, lodging, and food while in California to
testify, he received neither reward nor benefit in his felony
prosecution. The reliability of his testimony was properly
subject to jury evaluation.
The jury was likewise free to weigh the testimony of
Gabriel Pina’s girlfriend, Lillian Gonzales. Seconds after shots
41
Holmes and McClain also assert Gabriel Pina’s
identification was “manifestly unreliable.” We have rejected
those claims. (See ante, at pp. 54–59.)
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were fired, Gonzales saw a man wearing a trench coat and
holding a gun run from Wilson Street and get into a nearby car.
Gonzales acknowledged she was nearsighted, with 20/400 vision
in one eye and 20/20 vision in the other but testified that she
was able to see the black gun held by the man from a distance
of about six houses. Pina later identified Holmes as the gunman.
Holmes claims Gonzales’s testimony is unreliable because, in
her prior interviews and grand jury testimony, she failed to
mention that the person she saw running was holding a gun.
Although she had confided this fact to coworkers, she
acknowledged that she did not mention it in earlier questioning.
The evidence on firearm use was sufficient; the credibility
assertions Holmes makes were squarely before the jury.
e. Special Circumstances
McClain and Newborn challenge the special circumstance
findings, arguing they were not major participants in the
Halloween shootings. (See Tison v. Arizona (1987) 481 U.S. 137.)
McClain argues his role was, at most, that of a coconspirator
who was elsewhere when the shootings occurred. Newborn
similarly contends the evidence shows only that he was at
McFee’s house, not the multiple-murder site. Both arguments
fail. Simply because Newborn and others were involved in a
shooting at McFee’s house does not mean they could not have
committed other crimes that night, as McClain and Newborn
seem to urge.
The multiple-murder special circumstance does not
require a finding of intent to kill more than one victim. (People
v. Rogers (2006) 39 Cal.4th 826, 892.) Here, three children
perished, all shot during the same short encounter. Viewed in
the light most favorable to the judgment, the jury reasonably
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could have concluded that McClain and Newborn intended to
kill at least one victim and were responsible for killing others.
(See People v. Maciel (2013) 57 Cal.4th 482, 521.)
The lying-in-wait special circumstance required, at the
time of the crime, that the murder be committed with intent to
kill while lying in wait.42 (People v. Streeter, supra, 54 Cal.4th
at p. 246.) This special circumstance requires concealment of
purpose, a period of watchful waiting, and a surprise attack.
(Ibid.) Those elements were satisfied. The victims were walking
down the street, unaware of hidden assailants. The first
gunshots came from behind bushes where the assailants hid. In
describing the night to Derrick Tate, Holmes said he hid in
bushes, then jumped out and began firing. As Holmes admitted
to Tate, and as others described, the assailants hid behind
bushes before jumping out and firing.
Even if Newborn and McClain were not the shooters,
substantial evidence supports the jury’s true findings on an
aiding and abetting theory under section 190.2 as it existed in
1993. Subdivision (c) of the statute then provided, “Every person
whether or not the actual killer found guilty of intentionally
aiding, abetting, counseling, commanding, inducing, soliciting,
requesting, or assisting any actor in the commission of murder
in the first degree shall suffer death or confinement in state
prison for a term of life without the possibility of parole” in a
case in which a special circumstance has been found true. (§
42
First degree murder perpetrated by means of lying in wait
was distinct from the special circumstance because it required
only wanton and reckless intent to inflict injury likely to cause
death and could be perpetrated by means of, not necessarily
while, lying in wait. (People v. Streeter (2012) 54 Cal.4th 205,
246.)
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190.2, former subd. (b).) Evidence establishing these
requirements was presented against both defendants. Newborn
was seen at McFee’s house with a bulge under his clothing that
appeared to be a weapon. Shortly after he left, shots were fired.
Physical evidence connected the weapon used at McFee’s house
with the weapon used on Wilson Street. Similarly, McClain was
seen driving the lead car and later bragged that he had shot
Crips on Wilson Street. He also held a .38-caliber or nine-
millimeter gun while singing lyrics that implied he had used the
gun to kill someone.
4. Prosecutorial Misconduct
Defendants argue several remarks during the prosecutor’s
closing argument were misconduct. Improper comment by a
prosecutor requires reversal if it so infects a trial with
unfairness as to deny due process or “ ‘if it involves the use of
deceptive or reprehensible methods to persuade.’ ” (People v.
Winbush (2017) 2 Cal.5th 402, 480 (Winbush).) The remarks
complained of here neither deceived the jury nor undermined
due process.
McClain was arrested with Bowen for firearm possession
about a year before the Halloween shootings. The prosecutor
mentioned this arrest in closing argument to suggest that
McClain did not intend to act innocently, or alone, on the night
of the murders. McClain objected, noting the arrest was for gun
possession, not for “shooting at anyone.” The court allowed
argument to proceed, implicitly overruling the objection. No
further mention was made of the arrest. McClain now complains
the prosecutor improperly argued facts not in evidence. Counsel
is not permitted to “assume or state facts not in evidence
[citation] or mischaracterize the evidence [citation]”; however,
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the reasonableness of inferences counsel draws from matters in
evidence “ ‘ “is for the jury to decide.” ’ ” (People v. Valdez, supra,
32 Cal.4th at pp. 133–134.) McClain’s prior arrest with Bowen
was a fact in evidence. The prosecutor could appropriately refer
to it in asking the jury to disbelieve McClain’s claim that he
intended to act alone on the night of the murders. These
“comments did not mischaracterize or assume facts not in
evidence, but merely commented on the evidence and made
permissible inferences.” (Id. at p. 134.)43
McClain next claims the prosecutor committed
misconduct by referring to security guard Horace Carlyle’s
testimony that a group gathered at the hospital after Hodges’s
death appeared to include gang members. Defense counsel did
not object below. (See Dykes, supra, 46 Cal.4th at p. 756; see also
Winbush, supra, 2 Cal.5th at p. 481.) Even if preserved, the
claim would fail. Carlyle testified that he believed a group
gathered outside the hospital might be gang members. Although
the court prevented further questioning on the subject, the
testimony about Carlyle’s belief was not stricken. Accordingly,
the prosecutor’s reference was an appropriate comment on the
evidence (People v. Leon, supra, 61 Cal.4th at pp. 605–606), and
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