California Cases July 21, 2020: People v. Ware

Case Description

Certified for Partial Publication.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant Dionte Simpson.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant Victor Ware.

Nancy E. Olsen, Encinitas, under appointment by the Court of Appeal, for Defendant and Appellant Nicholas Hoskins.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, J.

[52 Cal.App.5th 925]

Dionte Simpson, Victor Ware, and Nicholas Hoskins (collectively appellants) are members of 5/9 Brim (Brim), a criminal street gang in San Diego that is a set of the Bloods gang. The Neighborhood Crips (NC) and West Coast Crips (WCC), (together, the Crips), other criminal street gangs, are the main rivals of the Brims. A jury found appellants guilty of the following crimes related to their gang involvement:

Count 1 (all appellants): Between January 1, 2012 and April 23, 2014, conspired

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to commit murder ( Pen. Code, §§ 182, subd. (a), 187 ) for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

Counts 2 and 3 (Simpson): June 14, 2011, attempted murder of Victims 1 and 2 ( §§ 664, 187, subd. (a) ) involving the personal use of a firearm (§ 12022.53, subds. (b), (c) and (e)(1)), and for the benefit of a street gang. (§ 186.22, subd. (b)(1).)

Counts 4 and 5 (Simpson): June 14, 2011, assaulted Victims 1 and 2 with a firearm (§ 245, subd. (b)) for the benefit of a street gang. (§ 186.22, subd. (b)(1).)

Count 6 (Simpson): April 4, 2012, participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about April 4, 2012. ( §§ 664, 187, 189.)

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Count 7 (Hoskins): August 27, 2013, participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about August 27, 2013. ( §§ 664, 187, 189.)

Counts 8, 12 and 13 (Ware): January 29, 2014 and April 23, 2014, possessing a firearm by a felon. (§ 29800, subd. (a)(1)).

Count 9 (Ware): March 25, 2014, participated in a criminal street gang conspiracy (§ 182.5) for the crime of premeditated attempted murder committed on or about March 25, 2014. ( §§ 664, 187, 189.)

Count 10 (Ware): March 25, 2014, first degree attempted murder ( §§ 664, 187, subd. (a) ) involving the personal use and discharge of a firearm (§ 12022.53, subds. (b), (c) and (e)(1)) for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

Count 14 (Ware): May 6, 2014, assault by means likely to produce great bodily injury (§§ 245, subd. (a)(4)) for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)

Ware subsequently admitted a prison prior allegation. (§ 667.5, subd. (b)). The court sentenced appellants to prison as follows: (1) Ware, 27 years plus 40 years to life; (2) Simpson, 36 years plus 25 years to life; and (3) Hoskins, 25 years to life.

Appellants challenge the sufficiency of the evidence supporting their convictions for conspiracy to commit murder (count 1) and criminal street gang conspiracy (counts 6, 7, 9). Appellants also challenge the instruction regarding coconspirators' statements. Ware asserts that the trial court erred by failing to instruct the jury that it could find multiple conspiracies existed. Simpson, joined by Hoskins, assert that their conspiracy convictions must be reversed because the jury was allowed to consider overt acts after the conspiracy terminated and overt acts that were not proven. Hoskins, joined by Simpson, also contend that their conspiracy convictions violated their right to free speech under the First Amendment because the court admitted evidence of their social media posts to establish participation in the alleged conspiracy.

Simpson challenges the evidence supporting his convictions for attempted murder (counts 2 and 3) and assault with a firearm (counts 4 and 5). Ware challenges the sufficiency of the evidence supporting the gang enhancement attached to his attempted murder conviction (count 10) and the evidence supporting one of his convictions for possessing two handguns found during the search of his residence (counts 12 and 13). He also challenges counts 12 and 13 on statute of limitations grounds. He further asserts that he received

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ineffective assistance when his trial counsel failed to move to suppress the gun found

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during his January 29, 2014, pat down search (count 8), and for conceding his guilt on all three firearm possession counts (counts 8, 12, and 13). Finally, Ware contends that the trial court incorrectly imposed sentence for both the firearm enhancement and the gang enhancement, and improperly imposed sentences for both conspiracy to commit murder and attempted murder.

Hoskins challenges the trial court's alleged rescinding of its mistrial order, and claims that the court improperly granted his Faretta motion. Finally, Simpson and Ware seek remand to allow the trial court to exercise its discretion to strike or impose the section 12022.53 firearm enhancements attached to counts 2 and 3. Simpson and Hoskins also claim cumulative error.

We reverse Simpson's and Hoskins's gang conspiracy convictions, but reject appellants' remaining arguments regarding their convictions. We agree that Simpson's and Ware's sentences must be vacated and the matter remanded for resentencing.

FACTUAL BACKGROUND

We limit our summary of the factual background to the expert testimony regarding the gangs at issue, the relevant crimes of which the jury found appellants guilty, and some of the overt acts pertaining to the conspiracy convictions. Viewed in the light most favorable to the judgment, the evidence was as follows.

Prosecution's Gang Expert

On April 11, 2011, Dereck Peppers, a respected Brim gang member known as an "original gangster" was killed in Brim territory. Police suspected that a rival Crips gang member had murdered Peppers. Simpson and Ware knew Peppers. Peppers's murder sparked a gang war between Brim and WCC and spiked the number of homicides attributed to African-American gangs.

Appellants were Brim gang members and members of a Brim subset known as Tiny Hit Squad. Young Hit Squad was another Brim subset. At some point Tiny Hit Squad and Young Hit Squad merged, creating a commingled group known as Hit Squad. A "hit" means to kill someone. Members of the Hit Squad included appellants and alleged coconspirators,

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Lamont Holman, Mykein Price, Timothy Hurst, Emanuel Peavy, Damonte Lucas, Clyde Ellis, Rahman Taylor, Nino Sanchez, Deondre Cooper, Leron Johnson, Jamon Smith, Edward Laplanche, Edward Paris, Aaron Hurst, Norman Sanchez, Maurice Chavarry, Sherbly Gordon, and Steven Mahaney. Brandin Orchord was also a Brim member and a member of Young Hit Squad. Jontae Jones was a member of the Hit Squad.

A gang that has been the target of a shooting by a rival gang is expected to retaliate or "get back" at the rival gang. A rival gang graffitiing in another gang's territory would also require retaliation. Failure to retaliate would make the gang appear weak and invite other gangs to prey on its members. The retaliation has to be equal to the insult suffered, but is preferably "one step above."

Blood gangs, including Brim, associate with the color red. Crips gang members traditionally wear blue. Gang members "put[ ] in work" for a gang by going on missions, such as committing burglaries, robberies or shootings. For shootings, gang members go into rival gang territory to seek rival gang members. A gang member

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on a mission might target a particular rival gang member. If the target cannot be located, the gang member will look for a substitute, such as someone dressed in the rival gang's color.

Gang members share guns. For example, in one 24-hour period the prosecution gang expert saw that one gun had been used by three different gang members. When it is time to go on a mission, a gang member will pick up a gun and pass it off to the person on the mission and then return the gun so that other gang members would have access to it. Gang members often store their guns at the home of a female who is not on parole or probation.

The gang expert reviewed a large amount of social media evidence pertaining to Brim gang members and explained to the jury how social media worked. The gang expert believed that gang members in a set knew when other gang members in the same set had engaged in or were part of criminal activity as evidenced by social media posts. Gang membership does not end when an individual goes into custody. Gang members in custody still have access to cell phones and social media. Gang members also monitor rival gangs on social media.

It is common for Brim gang members to replace the letter "C" with a "K" or to place the letter "K" after the letter "C." The letter "k" after the letter "c" refers to "Crip Killer." Blood gang members also replace the letter "c" with the letter "b" when writing. For example, the word "cool" becomes "bool." "Crab," "Nap bashing," "Toasty K," "wet toast" or "west toast" are derogatory terms for NC or WCC.

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June 14, 2011 - Simpson's Attempted Murder and Assault with Firearm Convictions (Counts 2-5)

On this day a group of five men, including Simpson, Orchord, Paris, and Chavarry started arguing with two Crips gang members on a street corner. Paris and Orchord began throwing gang signs with their hands. As the two Crips started to walk away, Simpson pulled out a gun, someone said "Fuck Crabs" and Simpson fired two or three shots. The two rival gang members fled. Simpson gave the gun to Orchord, who subsequently hid it in his garage.

After learning that the suspect group might be inside Orchord's apartment, police officers went to the apartment where they eventually contacted Orchord and Paris. Officers later found Simpson and Lucas hiding in the attic and Chavarry hiding under some clothing. Officers found a loaded revolver about a foot from where Simpson had been hiding.

Officers who responded to the scene located two expended .45-caliber shell casings in the front yard of a residence, and a bullet further down the street. During a search of Orchord's residence officers found a loaded .45-caliber semiautomatic firearm hidden in the garage. Subsequent ballistics tests linked this firearm to the shooting.

Police placed Simpson and Lucas in the back of a patrol car and the prosecution played their recorded conversation for the jury. The gang expert also interpreted some of the conversation. When Lucas commented that the police have not "found the other one," Simpson told him to shut up and explained to him why the police put them in the back of a patrol car together. This was an example of an older gang member schooling a younger one on police investigations.

When Lucas said, "they found the second one," Simpson's commented, "On Brims," asking Lucas to swear on the gang

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that police had found both guns. The gang expert interpreted Simpson's reply, "I got life," as an admission that he knew a gun would be linked to a shooting and there may be evidence connecting him to the shooting. Simpson and Lucas also discussed who would take the responsibility for the gun, with Simpson telling Lucas that he should accept the charge and take the hit for the gang because he was the youngest.

The garage contained Brim gang graffiti that included the gang monikers for Paris, Johnson, Chavarry, Hoskins, Orchord, Ware, and Peavy. The graffiti referenced "CK" meaning "Crip Killing" and "crab" which is a derogatory term for a Crips gang member.

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January 2012 Shootings (Overt Acts 1-5)

On January 3, 2012, a man with a dark complexion fired shots in WCC territory and then escaped in a vehicle. Later that day, a shooting took place in Brim territory. Two days later a third shooting took place in Brim territory. Bullet casings recovered from that shooting, matched the first shooting, suggesting to the expert that these shootings were consistent with "get back."

April 1, 2012 - Murder of M.B. (Overt Acts 4-6)

On April 1, 2012, M.B. was fatally shot. M.B., who was not a gang member, was in Crips territory while wearing all blue clothing. The gang expert considered this shooting to be a "mission" because an armed Brim gang member went to rival gang territory and shot a person without knowing whether that person was part of the rival gang. Ballistics testing conducted on cartridge casings recovered at the scene tied these casings to a nine-millimeter gun used during the shooting on April 4, 2012. Police recovered this gun on April 5, 2012, during a contact with coconspirators Norman Sanchez, Smith, and Lucas.

April 3, 2012 - Murder of W.L.

On this day, W.L., a nongang member, was fatally shot in the face by a Black person driving a stolen vehicle. Police later arrested coconspirator Ellis with the murder weapon.

April 4, 2012 - Attempted Murder of T.L. (Overt Acts 7-11) and Simpson Gang Conspiracy (Count 6)

On this day, NC gang member T.L., W.L.'s son, was shot by a memorial set up near the location of his father's shooting. Police recovered nine-millimeter casings from the scene. The casings were from two separate firearms, one of which was the same firearm used to kill M.B. three days earlier. One of the firearms was also used for return fire during the January 5, 2012 shooting.

Following their arrest for possessing a firearm, police placed Smith and Norman Sanchez in a patrol car together and recorded their conversation. Smith stated, "They found that thing," referring to the gun officers found. Later in the recording, Norman Sanchez said, "We did this ride shit for the homie." The gang expert explained that a "ride" means going on a mission for the gang. "For the homie," meant that the men did the shooting on

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someone's behalf, such as getting payback for a shooting that occurred in Brim territory. Norman Sanchez and Lucas later pleaded guilty to this shooting.

Police linked the nine-millimeter Beretta handgun recovered during Smith and Norman Sanchez's arrest to the April 1 and April 4, 2012 shootings. The gang expert opined that this shooting and the April 1 shooting were consistent with a gang mission because the gun was used multiple

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times in rival gang territory. Additionally, these shootings were committed at the beginning of the week that NC celebrated its gang, which is April 1 through 7.

On April 9, 2012, a social media status update on Hoskins's account stated, "Son was born healthy. Crossys got Hit. All I need is some Dro and my day is set. LOL. [#]Happy Easter." The gang expert explained that a "crossy" is a rival Crips gang member and that the post referenced the shooting of a Crips gang member.

May 2, 2012 - Arrest of Simpson's Girlfriend in Possession of Firearm Linked to Three Shootings

In the early morning hours on this day, an officer contacted Adrianna P. as she walked down the street in violation of curfew. A search of Adrianna's cell phone revealed "Blood" gang terminology in several text messages, some of which were attributed to Simpson. The officer recovered a loaded nine-millimeter firearm from Adrianna's purse. Testing revealed that this gun had been used during the January 5, 2012 shooting, the January 7, 2012 shooting, and April 4, 2012 shooting.

During a police interview, Adrianna admitted that Simpson fathered her child and that he had given her the gun immediately before the officer contacted her. She stated that everyone looked up to Simpson and that he got all the guns. She claimed that he passed guns to lots of people including, coconspirators Norman Sanchez, Lucas, and Paris. Adrianna stated that Simpson called Nino Sanchez "his son," and that Nino looked to Simpson as a father.

May 11, 2012 - Murder of C.T. (Overt Acts 12-14)

On this day, C.T., a nongang member, was in NC territory when a drive-by shooter shot and killed him. The night before C.T. was killed, a post appeared

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on Hoskins's social media page stating, "I'm making a lot of stupid decisions but [I don't give a fuck]. Deal with the consequences when they get here. #[you only Brim once]."

June 4, 2012 - Recovery of Smith & Wesson Handgun from a Brim Gang Member

On this day, police officers arrested Brim member Calvin Hunt for an outstanding warrant. After dropping Hunt off at jail for processing, officers discovered a loaded Smith & Wesson .40-caliber handgun on the floorboard of the backseat of their patrol car. The gun had been was used for C.T.'s murder on May 11, 2012, and contained Ellis's DNA. The gang expert concluded that the firearm was a gang gun used by multiple Brim gang members.

June 18, 2013 - Attempted Murder of D.S. (Overt Acts 31-34)

On this day Orchord went to D.S.'s residence with a female companion under the premise that she had a hair appointment with D.S. When D.S., who was not a gang member, opened his door, Orchord stepped out from behind his companion, said "What's up Blood," and shot D.S. in the chest.

The next day, Paris posted on his public Facebook page a photograph of Orchord, Paris, Price, and Taylor entitled "Crab say the Brims aren't here, Don't near [nigga]. Won't war with us." In the photograph, Orchord was tossing "Brim" with one hand and "Crip killer" with the other hand. Paris had a revolver pointed at a "W" made

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with his other hand, which disrespected WCC. Taylor had a gun in his waistband, and Price was spelling out "Blood" with his hands. The gang expert interpreted this post as a threat to rival Crips gang members, leading to possible retaliation by the Crips.

Officers sought the individuals in the photograph in different Brim locations. They located Paris and Orchord, who wore the same clothing depicted in the photograph. Simpson, Jones, another Brim member, and some girls were with them. One officer observed Jones discard a firearm in a trashcan. The gun, a .22-caliber revolver, contained Orchord's DNA and was the gun used to shoot D.S.

Officers placed Simpson and Paris in the back of a patrol car and recorded their conversation. In the recording, Simpson sounded very angry and excited. Simpson swore loyalty to Brim and referenced Hit Squad multiple times. Police took Simpson into custody that day for possessing narcotics for sale and recklessly evading a police officer. He has remained in custody since that date.

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August 27, 2013 - Attempted Murder of B.T. (Overt Acts 38-42) and Hoskins's Gang Conspiracy (Count 7)

On this date, B.T., a Lincoln Park gang member, was walking in WCC territory when a white minivan approached him. A passenger leaned out of the minivan's window and began firing in Taylor's direction. The shooter was a Black male wearing a black T-shirt with a red bandana over his face. The driver of the minivan was a Black male wearing a white T-shirt with hair braided in cornrows. Further investigation revealed that the minivan was registered to Brim gang member Timothy Hurst. Hurst was convicted for this shooting.

The gang expert stated that this shooting was consistent with a hunting mission looking for a potential rival, but the person shot at was not a rival. Officers collected .40 caliber casings from the scene. This firearm was later used in two other shootings: (1) the October 22, 2013, drive-by shooting of N.C. inside Crips territory; and (2) the October 23, 2013, shooting toward three African-American males who were inside a garage at a nearby apartment. An affiliate of WCC lived in an apartment adjacent to the garage. Police recovered the firearm used for this shooting from coconspirators Mahaney and Nino Sanchez.

Hurst's cell phone contained Hoskins's contact information. Hoskins's grandmother lived next door to Hurst's grandmother. Police found Hoskins's DNA on the passenger side interior door of the minivan. About six months before this shooting, Hoskins's social media account displayed a photograph of Hurst in front of a WCC hangout about a mile from the August 27 shooting. In the photograph, Hurst was tossing up Brim and Crips killer hand signs.

On August 27, 2013, Paris's social media account displayed two photographs of Hoskins and Paris in WCC territory, also about a mile or so from the shooting location, throwing up gang signs disrespectful to Crips. On February 27, 2014, Hoskins's social media account had a post stating, "I switch up on bitckh (N word), fast. I love my bros, but I'm truer to the code shit. I turn on TB if he does some gay shit and vice versa. Nothing personal. #one Brims." The gang expert explained that Hoskins was accusing Timothy Hurst, aka Tim Brim (TB), of snitching and was saying that if somebody snitched on him, he would go after them because he was truer to the code of no snitching.

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December 14, 2013 - Attempted Murder of N.S. and T.W. (Overt Acts 61-63)

On this day, the two victims, a WCC associate and an affiliate of a Brim rival, were shot in Brim territory. The gang expert explained that the rival

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gang members were shot because they "trespass[ed]" in Brim territory. He considered the shooting to be a proliferation of the war between the two rival gangs. Officers recovered 18 expended nine-millimeter casings from two firearms. They also found a loaded magazine for a semiautomatic handgun that contained Nino Sanchez's DNA.

December 15, 2013 - Attempted Murder (Overt Acts 63-65)

On this day two African-American males approached a residence in WCC gang territory on foot and fired shots. After the shooting, officers observed a WCC gang member yelling. The next day, Hoskins's social media account contained a post stating, "I'm tired of grinding, fighting, running, jail, death, stress, betrayal, and everything else this game has to offer. But it's what we signed up for. Right?"

Officers recovered one expended .40-caliber casing and 11 expended nine-millimeter casings from the scene. Ballistics testing linked eight of the nine-millimeter casings to the firearm used in shootings that occurred on March 2, 2014, April 12, 2014, and April 15, 2014. Coconspirator Peavy was charged with the April shootings and coconspirator Holman was charged with the March shooting.

Police later arrested coconspirator Price in possession of a .40 caliber semiautomatic pistol determined to be the second firearm used in this shooting and the shooting the day before. Price made a jailhouse call to coconspirator Peavy telling Peavy that he had been arrested with the gun and would take the blame for the gun.

January 29, 2014 - Ware Arrest for Possessing a Firearm (Count 8)

On this day, officers contacted Ware and found a loaded nine-millimeter handgun tucked into his waistband. At trial, the parties stipulated that Ware had a prior felony conviction. After his arrest, Ware made a jailhouse call to a female and talked about being arrested with a gun. He said that he needed to slow down because he was "doing a gang of shit," and was glad he only got locked up for gun possession.

March 25, 2014 - Ware's Attempted Murder and Gang Conspiracy Convictions (Counts 9-10 and Overt Acts 76-81)

On the afternoon of March 25, 2014, Ware drove his gold Lexus into "the most active area" in WCC territory at the time. Based on his experience, a

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detective stated that this WCC territory was "absolutely" a good place to find rival WCC gang members. The passenger, a young African-American male with cornrows wearing a black hoodie fired several shots at M.W., a WCC gang member. One witness then saw the shooter get out of the car and chase M.W., while firing his weapon. This witness saw no one else on the street that could have been the shooter's target. Eight minutes after the shooting and about a mile from where it occurred, officers found the abandoned Lexus and Ware in Brim territory.

Officers collected nine-millimeter casings, all from the same firearm, from the

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scene. Police did not match these casings to any other shooting. Surveillance video obtained from a school showed Ware driving around WCC territory before the shooting. The gang expert opined that the shooting was gang motivated and that Ware drove around rival gang territory on a mission looking for the target rival gang member.

Inside the Lexus, officers found a letter with the name "Victor Boston" on it, which was Ware's nickname. The letter was addressed to M.H., a Lincoln Park gang member. The Lincoln Park gang is an ally of the Brim gang. The letter referenced Ware's purchase of the Lexus. In the letter, Ware states, "I'm hella triv out here, squad. I might looking at some [jail] time myself. They found two challys of mine and that little sawed-off with my print, bro." The gang expert explained that Ware was telling M.H that they found two of his guns as well as a sawed-off shotgun with his fingerprint. In the letter, Ware also wrote, "Gon' learn one day. CK." Meaning people will learn about Crip Killing. Ware also wrote "I have nothing to talk about. I'll take it all on the chin. Then do it again. Brim gang." The gang expert opined that this passage meant Ware would not snitch, but he would take responsibility for the guns and do more shootings or Crip killing.

A few lines down, he said, "Bro, it's snitches in the set. I'll type weird shit, but I just wanted you to know I was out here and I got you. Get with me, bro, ASAP." Here, Ware was telling M.H. that things were weird among the gang and people in the gang might be cooperating with law enforcement. At the bottom of the letter, Ware said "I'm not on paperwork," which meant he was not on a probation or parole Fourth Amendment waiver status. Ware signed the letter "H$" and "THS" which referred to Hit Squad and Tiny Hit Squad.

April 12, 2014 - Murder of G.B. (Overt Acts 89-94)

On this day two men jumped out of a car and walked up to WCC gang member G.B. and his cousin. One of the men asked, "What's that Brim life like?" and both opened fire on G.B. G.B. died after being shot nine times.

Officers recovered 19 expended nine-millimeter casings from the crime scene that had been fired from two separate firearms. Testing of these casings

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uncovered the DNA of coconspirators Peavy and Holman. Cell phone records revealed communications between Peavy and Holman before the murder. During the investigation, law enforcement recorded a holding cell conversation between Peavy and Holman. The men discussed this murder and the finding of their DNA on the shell casings from the murder scene. Holman said, "No doubt. We fucked up, homie."

April 15, 2014 - Attempted Murder of B.T. (Overt Acts 96-100)

On this day B.T., a WCC associate and two other men were standing in an area close to WCC gang territory. A silver Ford Taurus that matched the vehicle involved in the March 2, 2014 shooting, parked nearby. A man, later identified as coconspirator Peavy got out of the driver's side of the Taurus, approached the men and asked "This is Crip? This is Crip?" B.T. responded, "Ain't nobody on no gangbanging shit out here." Peavy pulled a gun and fired at B.T., with one round hitting B.T. in the foot. Peavy ran back to the Taurus and the car sped away. Further investigation revealed that Peavy's girlfriend had rented the Taurus on February 15.

After this shooting several social media posts appeared on Hoskins's account, including one on the day of the shooting stating, "I ain't going to survive too much

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longer in Dago. Too much shit going on, and I can't keep my ass out of the mix." The next day, the following post appeared on Hoskins's account, "The status of an OG ... isn't established by age or how long you been around. I mean it count but you need the stripes and reputation to match. Big homie. LOL." The gang expert explained that a gang member needs put in to work to gain OG or original gangster status.

On April 17, 2014, the following appeared on Hoskins's account, "Think about it. We all young, dumb, black, and ain't turning down shit. We all think we tough. All of us got too much pride to take a loss. What you think going to happen when we butt heads. [Bl59d]. That's what." The gang expert explained that the author had too much pride to walk away or take a loss, would not turn down a fight or gunfight, and would move forward to the end.

On April 20, 2014, a photograph appeared on coconspirator Gordon's social media page showing Gordon tossing up "fuck nappy heads," and captioned, "The Blood, Little Bick Nick." A status update on this account said, "It's a new Brim and town, and he mash on everybody. Ain't fucking with the Brims or him. They call him Little Bick Nick." The gang expert explained these posts announcing that Gordon had received the gang name "Little Bick Nick" and that he will fight any Brim rival. A comment on this post from Hoskins's account stated, "I'm Big Bick Nick. CKA Baby Mikey. Sherb know what's bracking. Brim bidness." The gang expert explained that

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Hoskins was "Bick Nick" and "Baby Mikey" and that "CKA" was a reference to Crip killing and was used instead of putting "aka." The gang expert further explained that for a young gang member to take your name, such as Gordon taking Hoskins's, there had to be a level of respect and it meant the older gang member was working towards rider or original gangster status.

DISCUSSION

I.

SUFFICIENCY OF EVIDENCE

A. General Legal Principles

Where a defendant challenges the sufficiency of the evidence supporting a conviction, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. ( People v. Kraft (2000) 23 Cal.4th 978, 1053, 99 Cal.Rptr.2d 1, 5 P.3d 68.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. ( Ibid. ) "The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court[,] that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ‘ "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ’ " ( Id. at pp. 1053-1054, 99 Cal.Rptr.2d 1, 5 P.3d 68.) Reversal for insufficient evidence is warranted only when it appears that under no hypothesis whatsoever is there sufficient evidence to support the jury's verdict. ( People v. Bolin (1998) 18 Cal.4th 297, 331, 75 Cal.Rptr.2d 412, 956 P.2d 374.)

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B. Conspiracy to Commit Murder (Count 1)

1. Conspiracy Legal Principles

"The law of conspiracy ... permit[s] the imposition of criminal sanctions for [an] agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon actually is committed." ( United States v. Feola (1975) 420 U.S. 671, 694, 95 S.Ct. 1255, 43 L.Ed.2d 541.) A

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conspiracy conviction "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, 84 Cal.Rptr.2d 665, 975 P.2d 1071.)

" ‘It is seldom possible for the prosecution to offer direct evidence of an agreement to commit a crime. The agreement to commit the crime is usually made in secrecy. The conspiracy must be inferred by the trier of fact from all the circumstances that are proven, and if the inference is a reasonable one it will not be disturbed on appeal.’ " ( People v. Chavez (1962) 208 Cal.App.2d 248, 253, 24 Cal.Rptr. 895.) "Common design is the essence of a conspiracy and the crime can be committed whether the parties comprehend its entire scope, whether they act in separate groups or together, by the same or different means known or unknown to them, if their actions are consistently leading to the same unlawful result ...." ( People v. Means (1960) 179 Cal.App.2d 72, 80, 3 Cal.Rptr. 591.) Evidence is sufficient to prove an agreement " ‘ "if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." ’ " ( People v. Maciel (2013) 57 Cal.4th 482, 515-516, 160 Cal.Rptr.3d 305, 304 P.3d 983 ( Maciel ).) Each member of the conspiracy is liable for the acts of other members in carrying out the common purpose of the conspiracy. ( In re Hardy (2007) 41 Cal.4th 977, 1025, 63 Cal.Rptr.3d 845, 163 P.3d 853.)

"While mere association does not prove a criminal conspiracy [citation], common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy." ( People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20, 16 Cal.Rptr.2d 462 ( Quinteros ).) Where "the evidence establishes that a particular gang has a specific illegal objective ... evidence of gang membership may help to link gang members to that objective." ( United States v. Garcia (9th Cir.1998) 151 F.3d 1243, 1247 ( Garcia ).)

"Other than the agreement, the only act required is an overt act by any of the conspirators, not necessarily the defendant, and that overt act need not itself be criminal." ( People v. Smith (2014) 60 Cal.4th 603, 616, 180 Cal.Rptr.3d 100, 337 P.3d 1159.) " ‘[A]n overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.’ " ( People v. Zamora (1976) 18 Cal.3d 538, 549, fn. 8, 134 Cal.Rptr. 784, 557 P.2d 75.) "The purpose of the overt act is simply to show that the agreement has proceeded beyond the

[52 Cal.App.5th 939]

meeting of the minds stage to some direct or physical act, however innocent in itself, tending toward the furtherance of the objective of the conspiracy." ( People v. Saugstad (1962) 203 Cal.App.2d 536, 549-550, 21 Cal.Rptr. 740.) A conspiracy conviction can rest on a

[266 Cal.Rptr.3d 235]

single overt act. ( People v. Jurado (2006) 38 Cal.4th 72, 122, 41 Cal.Rptr.3d 319, 131 P.3d 400 ( Jurado ).)

2. Analysis

a. General introduction

The amended information alleged that appellants conspired, "[o]n or about and between January 1, 2012 and April 23, 2014" with each other and other unknown persons to commit murder. Police identified 18 other Brim gang members, who were also Hit Squad members as coconspirators. The amended information alleged the commission of 104 overt acts in furtherance of the conspiracy. The object of the conspiracy was to kill suspected rival NC and WCC gang members.

The jury convicted appellants of conspiracy to commit murder. It is undisputed that the prosecution relied exclusively on circumstantial evidence and presented no direct evidence of a conspiracy to commit murder.

Appellants challenge their convictions, generally contending that the prosecution presented insufficient evidence showing they entered into any agreement to commit murder, claiming their guilt was based on their gang membership and virtually nothing else. Simpson and Ware claim that the evidence did not show they possessed the specific intent to commit murder. Simpson and Hoskins also assert that their conspiracy convictions must be reversed because the jury was allowed to consider overt acts after the conspiracy terminated, and overt acts that the prosecution failed to prove. Finally, Hoskins and Simpson argue that their conspiracy convictions violated their free speech rights under the First Amendment and the California Constitution.

b. Existence of and participation in a conspiracy

We have examined the entire record in the light most favorable to the judgment, including the relationship, interests, conduct and activities of the alleged conspirators and coconspirators before and during the alleged conspiracy. ( Maciel, supra , 57 Cal.4th at pp. 515-516, 160 Cal.Rptr.3d 305, 304 P.3d 983.) We conclude that the record supports the reasonable inference that appellants and their coconspirators tacitly came to a mutual understanding to murder rival NC and WCC gang members and that appellants participated in the conspiracy.

[52 Cal.App.5th 940]

The prosecution gang expert was the detective investigating Brim from October 2011 through October 2015. At any given time, Brim had between 200 and 220 members. Appellants and their coconspirators were Brim gang members, and members of a Brim subset known as the Hit Squad. A "hit" means to kill someone. Some of the primary activities of Brim included murder and assaults with firearms.

The main rivals of the Brims are the Crips, specifically NC and WCC. In 2011, Peppers's murder sparked a gang war between Brim and WCC. Simpson and Ware knew Peppers. In June 2011, about two months after Peppers's death, Simpson shot at two Crips gang members and was subsequently convicted of two counts each of attempted murder and assault with a firearm. With Simpson during the shooting were coconspirators Paris, Chavarry, and Lucas. Paris pleaded guilty to aiding and abetting this shooting.

Simpson argues that the June 2011 shooting cannot be considered as evidence of a conspiracy because the prosecution did not allege the shooting as an overt act and the shooting preceded the alleged

[266 Cal.Rptr.3d 236]

start date for the conspiracy. Simpson is wrong. Incidents occurring before the start of the conspiracy may be considered as circumstantial evidence supporting the existence of the conspiracy. ( Maciel, supra , 57 Cal.4th at pp. 515-516, 160 Cal.Rptr.3d 305, 304 P.3d 983.) Notably, sometime between the date of the June shooting and February 2012, Simpson got "CK" or "Crip Killer" tattoos on his elbows.

After Adrianna's arrest in May 2012, her statements to police provided further circumstantial evidence from which the jury could infer the existence of a conspiracy to commit murder. Namely, she stated that Simpson placed a gun in her purse, everybody looked up to Simpson, that he got all the guns and passed the guns to lots of people including, coconspirators Norman Sanchez, Lucas, and Paris. Coconspirators Norman Sanchez and Lucas

[52 Cal.App.5th 941]

pleaded guilty to the April 4, 2012, attempted murder of NC gang member, T.L. (overt acts nos. 7-11) Coconspirator Timothy Hurst was convicted of the August 2013 attempted murder of B.T., a Lincoln Park gang member who was walking in WCC territory (overt acts nos. 38-42). Although B.T. was not a rival Crips gang member, the gang expert stated that this shooting was consistent with a hunting mission looking for a potential rival, but the person shot at was not a rival. The jury convicted Ware of attempting to murder a WCC gang member in March 2014 based on his participation in this shooting (overt acts nos. 76-81). Ware's moniker, CK (Crip Killer) Vick, evidenced his motive to kill rival Crips gang members.

This evidence amply supported the jury's finding that appellants and their coconspirators entered into a tacit agreement to murder rival NC or WCC gang members. This evidence also established Simpson and Ware's participation in the conspiracy and their attempted murder convictions show that they harbored an intent to kill. ( People v. Lee (2003) 31 Cal.4th 613, 623-624, 3 Cal.Rptr.3d 402, 74 P.3d 176 [attempted murder "requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing" and an aider and abettor must share the specific intent of the direct perpetrator].) The overt act requirement is also satisfied by Simpson's and Ware's convictions of attempted murder.

[266 Cal.Rptr.3d 237]

As Hoskins notes, the prosecution failed to prove that he was a direct participant or aider and abettor in any of the shootings. Nonetheless, sufficient circumstantial evidence existed from which jurors could conclude that Hoskins knew of the conspiracy and had the deliberate, knowing, and specific intent to join the conspiracy.

First, Hoskins's social media account contained references to killing and Crip killing, including photographs depicted Hoskins tossing the gang sign for Tiny Hit Squad and "CK." One title in Hoskins's social media account reads "Spell it, Bick Nick. Tell he really about his CK's." The gang expert explained that Hoskins was really about his Crip killing and that Hoskins's

[52 Cal.App.5th 942]

gang moniker was "Bick Nick." A March 19, 2014, status update posted to Hoskins's account read, "My occupation: steal, kill, and deal. Everything got a price even your life."

A May 20, 2014, status update on Hoskins's account read, "Gangsters don't flick it with gigs. They use it." Meaning gangsters do not take photographs with guns, they use them. In February 2012, police arrested Hoskins with coconspirator Laplanche and found a firearm tucked into Hoskins's waistband. In August 2012, an officer found a loaded .357 revolver in an area after chasing Hoskins. The jury could infer from this evidence that Hoskins carried firearms and had the intent to use them.

On April 4, 2012, two individuals shot at NC gang member, T.L. (overt acts nos. 7-11). Coconspirators Norman Sanchez and Lucas pleaded guilty to attempted murder for this shooting. Five days after this shooting, Hoskins's social media account contained an update noting that a rival Crips gang member had been shot. The jury could infer from this evidence that Hoskins's post referenced the April 4, 2012 shooting.

Coconspirator Timothy Hurst was convicted of the August 27, 2013 attempted murder of B.T., a Lincoln Park gang member who was walking in WCC territory (overt acts nos. 38-42). Photographs obtained from Paris's social medial account taken the morning of this shooting and about one mile away from where the shooting occurred, depicted Paris and Hoskins "flipping off" NC. The jury could infer from this evidence that Hoskins knew of the shooting set to occur that evening.

This evidence, when viewed with the evidence of the coconspirators' activities and Hoskins's relationship to the coconspirators, constituted sufficient evidence from which jurors could conclude that Hoskins knew of the conspiracy and had the deliberate, knowing, and specific intent to join the conspiracy. Significantly, the jury necessarily found the evidence of interdependence among the participants in the crimes to be persuasive, having found true all of the gang enhancements against all appellants. "[W]hile the jury must acquit [a defendant of conspiracy] if the circumstantial evidence is capable of

[266 Cal.Rptr.3d 238]

two interpretations, one suggesting guilt and one suggesting innocence, once the jury concludes defendant is guilty that determination is upheld on appeal providing that the circumstances reasonably justify the jury's determination." ( People v. Garcia (2000) 84 Cal.App.4th 316, 323, 100 Cal.Rptr.2d 789.) Such circumstances exist here.

[52 Cal.App.5th 943]

c. Overt acts after conspiracy ended or not proven

Simpson and Hoskins allege that their conspiracy convictions must be reversed because the court allowed the jury to consider overt acts 15, 44, 103, and 104 which were not proved or occurred after the conspiracy terminated. They claim that the jury could have based the conspiracy convictions on one of the improperly included overt acts because the verdict form did not require that the jury reveal which overt act they found had been committed and there was no requirement that the jury unanimously agree on the same overt act to support a conspiracy conviction. ( People v. Valdez (2012) 55 Cal.4th 82, 154, fn. 40, 144 Cal.Rptr.3d 865, 281 P.3d 924.) The People argue that any error in presenting these four overt acts was harmless. We agree with the People.

The People alleged that the conspiracy ended "on or about" April 23, 2014. Overt acts 103 and 104 contain statements admitted as declarations of a coconspirator ( Evid. Code, § 1223 ) that took place in May 2014, after the conspiracy allegedly ended. A conspiracy usually ends when the substantive crime for which the coconspirators are being tried is either attained or defeated. ( People v. Leach (1975) 15 Cal.3d 419, 431, 124 Cal.Rptr. 752, 541 P.2d 296.) Nonetheless, it is a question for the fact-finder to determine when a charged conspiracy has ended, "considering the unique and the nature and purpose of the conspiracy of each case." ( People v. Saling (1972) 7 Cal.3d 844, 852, 103 Cal.Rptr. 698, 500 P.2d 610.)

The precise date on which an offense was committed need not be stated in an accusatory pleading unless the date is material to the offense. (§ 955.) For example, in People v. Peyton (2009) 176 Cal.App.4th 642, 98 Cal.Rptr.3d 243 ( Peyton ), the defendant had been charged with committing certain sex offenses against a child " ‘on or about October 1, 2005,’ " but the evidence showed that the offenses occurred in the fall of 2004. ( Id. at p. 660, 98 Cal.Rptr.3d 243.) The appellate court upheld the convictions despite this variance, finding that "evidence is not insufficient merely because it shows the offense was committed on another date," the October 1, 2005 date was not material to any of the charged offenses, and defendant showed no prejudice. ( Ibid. )

Here, the alleged April 23, 2014 end date was not material to the conspiracy charge, nor were the jurors instructed on the beginning or end date of the conspiracy. Rather, the court instructed the jurors that the crime required the commission of one of the 104 alleged overt acts, but did not

[52 Cal.App.5th 944]

require all jurors to agree on the specific act or acts committed. Additionally, the jurors were instructed that they could only consider statements of coconspirators "made before or during the time that the defendants were participating in the conspiracy." (

[266 Cal.Rptr.3d 239]

CALCRIM No. 418.) Thus, it was up to the jury to determine the precise end date of the conspiracy and whether the coconspirators statements alleged in overt acts 103 and 104 were part of the conspiracy.

Simpson and Hoskins next complain that the evidence did not support overt acts 15 and 44, noting that the prosecution failed to present any evidence to support overt act 15. Overt act 44 alleged that "on or about October 1, 2013" Simpson and Paris posed in a photograph with Simpson displaying Crip Killer hand signs and Paris imitating shooting a gun with his hand," but this was inaccurate because Simpson was in custody on that date and could not have posed for a photograph.

We fail to discern any prejudice based on the inclusion of overt acts 15 and 44 in the instructions. The court instructed the jurors that the People were required to prove the commission of at least one overt act, but that they did not need to agree on which specific over act or acts were committed. If the evidence did not support overt acts 15 and 44, then none of the jurors could not have relied on these two overt acts to support the conspiracy convictions.

d. Right to free speech

Hoskins asserts that his conspiracy conviction violated his right to free speech under the First Amendment and the California constitution because the prosecution presented evidence of his social media postings to support the conviction as overt acts 11, 21, and 73. The People contend that Hoskins forfeited this claim by failing to object to the social media evidence on this ground post. Even assuming the issue is properly before us, the People assert the argument is meritless because Hoskins is not being punished for his social media posts, but for a conspiracy to commit murder. We decline to deem this constitutional challenge forfeited because we easily reject the argument on its merits.

As the People correctly note, Hoskins is being punished for his participation in a conspiracy, not for his social media posts. Evidence Code section 1220 allows evidence of a statement by a declarant that is offered

[52 Cal.App.5th 945]

against him. Hoskins's social media posts qualify as an admission under this section and were admissible to prove his participation in the conspiracy. ( People v. Hardy (1992) 2 Cal.4th 86, 142, 5 Cal.Rptr.2d 796, 825 P.2d 781 [defendants' statements admissible to prove participation in a conspiracy].) The "admission of ... evidence, relevant to actual criminal conduct, does not violate [a defendant's] constitutional free speech rights." ( People v. Smith (2003) 30 Cal.4th 581, 626, 134 Cal.Rptr.2d 1, 68 P.3d 302 ; People v. Quartermain (1997) 16 Cal.4th 600, 629, 66 Cal.Rptr.2d 609, 941 P.2d 788 ["evidence [of racial epithets] was relevant to the issues being tried, and thus its use did not violate the First Amendment"].)

C. Gang Conspiracy (Counts 6, 7, 9)

Appellants challenge their gang conspiracy convictions under section 182.5 on different grounds. We start our discussion by reviewing the gang conspiracy statute. We then turn to a joint argument made by Simpson and Ware, before addressing each appellant separately.

[266 Cal.Rptr.3d 240]

1. Gang Conspiracy Legal Principles

Enacted by voter initiative, section 182.5 "created a new form of conspiracy that is distinct from the traditional understanding of the crime ...." ( People v. Johnson (2013) 57 Cal.4th 250, 261, 159 Cal.Rptr.3d 70, 303 P.3d 379 ( Johnson ).) The statute provides:

"[A]ny person who actively participates in any criminal street gang ... with knowledge that its members engage in or have engaged in a pattern of criminal gang activity ... and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182." (§ 182.5, italics added.)

In Johnson , our high court explained that gang conspiracy under section 182.5 differs from criminal conspiracy in five ways. ( Johnson, supra , 57 Cal.4th at pp. 261-262, 159 Cal.Rptr.3d 70, 303 P.3d 379.) First, the defendant "must be an active gang participant with knowledge of other members' pattern of criminal gang activity." ( Id. at p. 262, 159 Cal.Rptr.3d 70, 303 P.3d 379.) Second, a gang conspiracy requires the commission or attempted commission of felonious criminal conduct. ( Ibid. ) Third, a gang conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime. Accordingly, "an active and knowing gang participant who acts with the required intent to promote, further, or assist in the commission of a felony by other gang members can violate section 182.5. ( Ibid. ) Fourth, a gang conspiracy "requires the actual commission of felonious criminal conduct as either an attempt or a completed crime." ( Ibid. ) Fifth, a gang conspiracy

[52 Cal.App.5th 946]

includes "not only a gang member who promotes, furthers, or assists in the commission of a felony, but also an active and knowing participant who merely benefits from the crime's commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense." ( Ibid. ) The court explained, "[d]ue to the organized nature of gangs, active gang participants may benefit from crimes committed by other gang members. When such benefits are proven along with the other elements of the statute, section 182.5 permits those benefitting gang participants to be convicted of conspiracy to commit the specific offense from which they benefitted. ( Ibid. )

2. Analysis

a. Gang conspiracy to commit attempted murder

Citing People v. Iniguez (2002) 96 Cal.App.4th 75, 116 Cal.Rptr.2d 634 ( Iniguez ), Simpson and Ware contend that their gang conspiracy convictions must be reversed because there is no such crime as conspiracy to commit attempted murder. In Iniguez , the appellate court concluded that the crime of conspiracy to commit attempted murder does not exist. ( Id. at p. 79, 116 Cal.Rptr.2d 634.) The court explained that "the crime of attempted murder requires a specific intent to actually commit the murder, while the agreement underlying [a] conspiracy [to commit attempted murder] contemplate[s] no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder." ( Ibid. ) Put differently, "one cannot conspire to try to commit a crime" because conspiracy requires an agreement to commit a crime, not an agreement to attempt to commit a crime. ( Johnson, supra , 57 Cal.4th at p. 264, 159 Cal.Rptr.3d 70, 303 P.3d 379.)

[266 Cal.Rptr.3d 241]

Simpson and Ware's reliance on Iniguez is misplaced because traditional conspiracy, at issue in Iniguez , requires evidence of an agreement. ( Iniguez, supra , 96 Cal.App.4th at p. 78, 116 Cal.Rptr.2d 634.) Gang conspiracy, however, does not require evidence of an agreement. Rather, as our high court explained, gang conspiracy "does not contemplate an agreement to commit an ineffectual act.... Unlike Iniguez , there is no logical impossibility or absurdity in recognizing the crime of conspiracy to actively participate in a gang." ( Johnson, supra , 57 Cal.4th at p. 264, 159 Cal.Rptr.3d 70, 303 P.3d 379.) Instead, for gang conspiracy, the "act of assistance or promotion replaces the required prior agreement to commit a crime that is ordinarily at the heart of a traditional conspiracy." ( Id. at p. 262, 159 Cal.Rptr.3d 70, 303 P.3d 379.) Accordingly, it is possible to be guilty of a gang conspiracy to commit an attempted offense.

b. Ware (Count 9)

The jury found Ware guilty of attempted murder and gang conspiracy arising out of the shooting on March 25, 2014, where he drove his car into

[52 Cal.App.5th 947]

WCC territory and his passenger fired a gun at a WCC gang member. Ware submits that to find him liable for gang conspiracy the jury was required to find that his passenger, the direct perpetrator of the shooting, was a Brim gang member. He claims that his conviction must be reversed because the identity of the shooter was never uncovered.

The People disagree, claiming we should reject Ware's interpretation that a section 182.5 crime must be committed by multiple members of the gang, because this interpretation narrows the application of the law when it was meant to expand liability. In any event, the People assert that the evidence demonstrated that Ware's accomplice in the drive-by shooting was also a Brim gang member. As we shall explain, we agree with Ware that the jury was required to find that his passenger, the direct perpetrator of the shooting, was a member of Brim, but reject his assertion that the evidence did not support this finding.

The statute requires the prosecution prove that the defendant "willfully promote[ ], further[ ], assist[ ], ... any felonious criminal conduct by members of that gang ...." (§ 182.5, italics added.) Thus, the plain language of the statute requires that Ware's passenger, the shooter, be a Brim gang member. The jury instruction for this crime follows this interpretation. For Ware, the trial court instructed the jury as follows:

"1. Defendant actively participated in a criminal street gang;

"2. When the defendant participated in the gang, he knew that the members of the gang engage in or have engaged in a pattern of criminal gang activity;

"3. On March 25, 2014 members of the criminal street gang committed Deliberate and Premeditated Attempted Murder in violation of Penal Code Sections 664/187/189;

"AND

"4. Defendant willfully promoted, furthered, assisted or benefitted from, the commission of the March 25, 2014 Deliberate and Premeditated Attempted Murder by members of the gang. " (Italics added.)

There is no evidence regarding the shooter, other than he was an African-American male with hair in cornrows.

[266 Cal.Rptr.3d 242]

Nonetheless, based on the totality of

[52 Cal.App.5th 948]

the evidence presented during trial the jury could reasonably infer that the shooter, Ware's passenger, was a Brim gang member.

The gang expert testified that Brim and WCC were in a gang war and that Ware was part of a Brim subset known is the Hit (or kill) Squad with a number of other Brim gang members. The gang expert testified that gang members put in work for the gang by going on missions. Shooting missions involve gang members going into rival gang territory seeking a rival gang member or a substitute, such as someone dressed in the rival gang's color. The gang expert testified that gang members tend to work with people they trust.

Additionally, gang members work with " ‘backup’ or ‘someone[ ] [who has] your back. No matter what happens out there, somebody, one of your trusted, one of your chosen few is going to be behind you. When shots are fired, when the fight goes down, no matter what, they're not going to turn and run and leave you hanging by yourself.’ " The expert noted that gang members in the same set are expected to back each other up and that the failure to do so would result in some type of disciplinary action because failure to backup another gang member makes the set look weak. The gang expert opined that this particular shooting was gang motivated and that Ware drove around rival territory on a mission looking for a rival gang member. The expert noted that Ware and coconspirator Nino Sanchez were arrested together in August 2009 in a stolen car. Ware was also arrested in 2010 with coconspirator Holman.

Brim and Crips gang members were in a gang war. The gang expert testified that this particular shooting, targeting a WCC gang member, was a gang mission, that gang members take "backup" and these individuals are people that the gang member trusts. From this evidence, the jury could reasonably infer that Ware drove a trusted Brim gang member into rival gang territory to commit the shooting. Accordingly, we reject Ware's argument that the evidence failed to support his gang conspiracy conviction.

c. Simpson (Count 6)

The jury found Simpson guilty of gang conspiracy arising out of a shooting on April 4, 2012, where two individuals shot NC gang member T.L. while he stood near a memorial set up for his father, who had been murdered in a drive-by shooting the day before. Brim gang members Norman Sanchez and Lucas later pleaded guilty to this shooting. Simpson argues that his gang conspiracy conviction must be reversed for two reasons. First, he contends that the nature of Norman Sanchez's and Lucas's convictions was not presented to the jury; thus, there was no prior jury finding that the crime of premeditated and deliberate attempted murder was committed on April 4,

[52 Cal.App.5th 949]

2012. Second, he argues that there is no evidence he willfully participated, promoted, assisted, or benefited from the April 4, 2012 shooting in any manner. He asserts we should reject any argument that he benefitted from the shooting without doing anything to obtain that benefit because such a finding would

[266 Cal.Rptr.3d 243]

condemn him for his associations, not for his actions.

The People ignore Simpson's first argument, which we conclude is dispositive. Accordingly, we need not address whether Simpson willfully promoted, furthered, assisted, or benefited from the April 4, 2012 shooting.

The prosecution must prove that the defendant "willfully promote[d], further[ed], assist[ed], or benefit[ed] from any felonious criminal conduct by members of that gang...." (§ 182.5, italics added.) Regarding this element, the court instructed the jury that to find Simpson guilty of gang conspiracy it must find that "[o]n April 4, 2012, members of the criminal street gang committed Deliberate and Premeditated Attempted Murder in violation of ... Sections 664/187/189." The elements of attempted murder are "specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing." ( People v. Lee (2003) 31 Cal.4th 613, 623, 3 Cal.Rptr.3d 402, 74 P.3d 176.) "[A]ttempted murder and premeditated attempted murder are the same offense." ( People v. Sedillo (2015) 235 Cal.App.4th 1037, 1049, 185 Cal.Rptr.3d 907.) Premeditation constitutes a penalty provision that prescribes an increase in punishment, but this " ‘penalty provision is separate from the underlying offense and does not set forth elements of the offense or a greater degree of the offense charged.’ " ( Ibid. )

To convict Simpson of gang conspiracy the jury needed to find that the April 4, 2012 shooting was an attempted murder committed by a Brim gang member. While it is undisputed that Norman Sanchez and Lucas were Brim gang members, there is no evidence in the record regarding to what crime these individuals pleaded guilty, or whether this crime constituted a felony. It is not within the common knowledge of laypersons to be able to determine from the testimony to what crime Norman Sanchez and Lucas pleaded guilty, or whether that crime constituted a felony. Without any evidence regarding the nature of the crimes committed by these Brim gang members the jury is left with speculation. " ‘But speculation is not evidence, less still substantial evidence.’ " (

[52 Cal.App.5th 950]

People v. Waidla (2000) 22 Cal.4th 690, 735, 94 Cal.Rptr.2d 396, 996 P.2d 46.) The lack of evidence regarding the nature of Norman Sanchez's and Lucas's convictions constitutes a failure of proof regarding an element of the crime of gang conspiracy. Accordingly, Simpson's gang conspiracy conviction must be reversed. ( People v. Diaz (2005) 125 Cal.App.4th 1484, 1490-1491, 23 Cal.Rptr.3d 653 ["The prosecution bears the burden of proving all elements of the offense, and must persuade the fact finder beyond a reasonable doubt of the facts necessary to establish those elements."].)

d. Hoskins (Count 7)

i. Additional background

The jury found Hoskins guilty of gang conspiracy arising out of a shooting on August 27, 2013, where a white minivan approached B.T., a Lincoln Park gang member walking in WCC territory, and the minivan's passenger, who wore a red bandana over his face, fired a gun in B.T.'s direction. Further investigation revealed that the minivan was registered to Brim gang member Timothy Hurst and Hurst was later convicted for this shooting.

During opening statement, the prosecutor told the jurors that he would present Timothy Hurst's free talk and that Hurst would testify at trial about the information he provided in that free talk. He claimed that Timothy Hurst would testify that Hoskins instigated the shooting because

[266 Cal.Rptr.3d 244]

the Crips had disrespected Brim by coming into Brim territory to take photographs, that Nino Sanchez was the shooter in the red bandana and Hoskins was a back seat passenger.

Ultimately, Timothy Hurst refused to testify, was held in contempt, and none of the evidence from the free talk was presented at trial. During closing argument, the prosecution used social media postings and Hoskins's contact with, B.T., the victim of the shooting after Timothy Hurst's arrest to support the gang conspiracy charge. Specifically, the evidence against Hoskins consists of the following:

About six months before the August 27 shooting, Hoskins was in WCC territory, about a mile from where the shooting occurred, and he posted on social media a photograph of Timothy Hurst tossing up Brim and Crip killer hand signs. The morning of August 27 a posting on fellow gang member Paris's social media account showed two photographs of Hoskins and Paris in the same location making gang-related hand signs, including flipping off WCC.

The unknown shooter wore a red bandana around his face. At some unknown time a photograph was posted on Hoskins's social media account

[52 Cal.App.5th 951]

showing Hoskins with a bandana over his face captioned, "Rags around our face to beat the case in case the N word look 5/9 Brim gang. Nap bashing. Toe smashing. 3k, 4k, YH[$]." The gang expert interpreted the caption as meaning you should hide your face in case another person sees you. Nap bashing means bashing in NC. Toe smashing means smashing on WCC. 30k references WCC and 40k represents NC. The YHS with the dollar sign means Young Hit Squad.

The gang expert stated that Timothy Hurst and Hoskins grew up next to each other and concluded that the men were "extremely close friends." Hoskins's DNA was found on the passenger side of Hurst's minivan. After Hurst's arrest, Hoskins and Hurst's girlfriend discussed the case against Hurst that included photographs of witness statements by B.T., the shooting victim.

Hoskins reached out to B.T., the shooting victim, through social media asking him not to testify so that Hurst could beat the case. The response from B.T.'s account read, "I'm not testifying on Blood what the paperwork say?" The expert explained the response as swearing on the gang to not testify. This was followed by a series of communications between the two accounts culminating with the person using the Hoskins account to challenge and then threaten the person using B.T.'s account.

ii. Analysis

To establish Hoskin's guilt of gang conspiracy the prosecution was required to prove that Hoskins "willfully promote[d], further[ed], assist[ed], or benefit[ed] from any felonious criminal conduct by members of that gang...." (§ 182.5, italics added.) Regarding this element, the court instructed the jury that to find Hoskins guilty of gang conspiracy it must find that "[o]n August 27, 2013, members of the criminal street gang committed Deliberate and Premeditated Attempted Murder in violation of ... Sections 664/187/189." Although the record established that Timothy Hurst was a Brim gang member, we located no evidence in the record of what crime Timothy Hurst pleaded guilty regarding this shooting.

We requested and received supplemental briefing from the parties on: (1) whether the jury received any evidence informing them of what crime Timothy Hurst pleaded guilty as related to his involvement in the August 27, 2013 shooting; and

[266 Cal.Rptr.3d 245]

(2) assuming the jury received no evidence informing them of what crime Timothy Hurst pleaded guilty as related to his involvement in the August 27, 2013 shooting, whether sufficient evidence supports the jury's verdict against Hoskins on Count 7, gang conspiracy.

All parties agree that the jury received no evidence informing them of what crime Timothy Hurst pleaded guilty as related to his involvement in the

[52 Cal.App.5th 952]

August 27, 2013 shooting. Hoskins claims that this omission requires his gang conspiracy conviction be reversed because the evidence fails to show that any Brim gang member suffered a felony conviction related to this shooting. We agree. (See ante , pt. I.C.3.c.) Based on this failure of proof, we reverse Hoskins's gang conspiracy conviction.

D.-F.

II.-III.

IV.

HOSKINS'S MISTRIAL AND FARETTA MOTIONS

A. Additional Background

On April 13, 2016, approximately one month after trial began, Hoskins's defense counsel had a medical emergency in the courtroom and was transported to the hospital. The court recessed the trial until the following Monday, April 18. At a hearing on that date, the court recessed the matter until the following Monday, April 25. At a hearing on April 25, Hoskins's defense counsel asked to withdraw from the case for medical reasons, indicating that he needed to focus on his health for several months.

The court stated that if it relieved Hoskins's defense counsel it would appoint new counsel for Hoskins and declare a mistrial as to Hoskins. After making this statement, Simpson and Ware moved for a mistrial. The court relieved Hoskins's defense counsel. New counsel appeared for Hoskins stating he could accept the appointment, but that it would take him up to a year or more to be ready for trial. At that point, Hoskins asked if the court "could set aside that mistrial if I choose to represent myself." After additional discussion with the court, Hoskins formally asked for the right to represent himself and to set aside the mistrial.

The court had a conversation with Hoskins, concerned that Hoskins was asking to represent himself "out of duress and a sense of urgency, desperation because you're tired of being locked up and not knowing what your future

[52 Cal.App.5th 953]

holds." The court told Hoskins that "at this point in time I'm prepared to declare a mistrial and appoint a new attorney to represent you" unless Hoskins could demonstrate that he was ready to represent himself. The court took a recess and resumed with just the People and Hoskins present.

The People asked for clarification whether the court had declared a mistrial as to Hoskins. The court responded that it needed to "comb through the record to probably answer that definitively" but that it "believe[d] [it] did declare a mistrial this morning...." The court stated that it was not inclined to allow Hoskins to represent himself, believing that Hoskins might be trying to create an appealable issue should he be convicted while self-represented. The court recessed the matter to allow the parties to research whether jeopardy attached if the court did not permit Hoskins to represent himself.

The following day, all parties appeared to address Hoskins's request to represent

[266 Cal.Rptr.3d 246]

himself. Citing People v. Dent (2003) 30 Cal.4th 213, 132 Cal.Rptr.2d 527, 65 P.3d 1286 ( Dent ), the People argued that the court must honor Hoskins's right to self-representation unless the request was not voluntary or untimely. The People asserted that the request was timely under the circumstances and not coerced. The court had Hoskins fill out an acknowledgement regarding self-representation and a waiver of right to counsel form. The court reviewed these documents with Hoskins and granted Hoskins's request to represent himself. Thereafter, the court denied Simpson's mistrial motion.

After Hoskins's conviction, the court appointed Hoskins counsel, who filed a motion for new trial. The court denied the new trial motion.

B. Analysis

Hoskins argues that legal necessity required a mistrial, the court properly granted a mistrial, but erred when it later reversed its mistrial order based solely on the unfounded concern that if a mistrial was ordered, double jeopardy would bar a retrial. Accordingly, he asserts that the court failed to make an informed decision on the existence of legal necessity for a mistrial and the error constituted an abuse of discretion requiring a reversal of the judgment. He also claims that the court's failure to declare a mistrial violated his right to counsel, right to a fair trial, and constituted structural error because his right to effective legal representation was violated. He complains that the court compounded the error by granted his request for self-representation based solely on the above mistakes of law and despite finding that his request for self-representation was not voluntary, timely or unequivocal.

The People disagree, claiming that the court never actually granted Hoskins a mistrial, but even if it had, it properly rescinded that order because

[52 Cal.App.5th 954]

Hoskins's objection to a mistrial and assertion of his constitutional right to represent himself negated the legal necessity for a mistrial. The People argue that granting a mistrial without Hoskins's consent and without legal necessity would have prevented a retrial and that Hoskins cannot complain because he decided to represent himself and remove the legal necessity required for the court to grant a mistrial. The People further assert that the court properly granted Hoskins's Faretta motion, but even assuming error, the assumed error was invited or harmless. As we shall explain, the court never granted Hoskins a mistrial and the proper grant of Hoskins's Faretta motion eliminated the need to declare a mistrial.

1. The court never granted Hoskins a mistrial

The United States and California constitutions prohibit the government from putting a person in jeopardy twice for the same offense. ( U.S. Const., 5th Amend.; Cal. Const., art. I, § 15 ; see Pen. Code, § 1023.) If a trial court discharges a sworn jury without a verdict, double jeopardy principles prohibit retrial of the defendant unless the defendant consented to the discharge or legal necessity justified it. ( People v. Batts (2003) 30 Cal.4th 660, 679, 134 Cal.Rptr.2d 67, 68 P.3d 357 ; Larios v. Superior Court of Ventura County (1979) 24 Cal.3d 324, 329, 155 Cal.Rptr. 374, 594 P.2d 491.)

Legal necessity for declaring a mistrial and discharging the jury without a defendant's consent typically arises "where the jury is unable to agree on a verdict" or "where physical causes beyond the control of the court, such as the death, illness or absence of a judge, juror, or the defendant, make it impossible to continue." ( People v. Brandon (1995) 40 Cal.App.4th 1172, 1175, 47 Cal.Rptr.2d 383.) This list is not exclusive.

[266 Cal.Rptr.3d 247]

( In re Carlos V. (1997) 57 Cal.App.4th 522, 527, 67 Cal.Rptr.2d 155.) Legal necessity for granting a mistrial without the defendant's consent may also exist where the trial court is required to replace defense counsel in the middle of trial. ( People v. Manson (1976) 61 Cal.App.3d 102, 202, 132 Cal.Rptr. 265 ( Manson ).) Legal necessity for granting a mistrial without the defendant's consent was also found to exist where counsel belatedly discovers a conflict of interest. ( People v. McNally (1980) 107 Cal.App.3d 387, 391, 165 Cal.Rptr. 715.)

The State bears a heavy burden in justifying a mistrial over defendant's objection. ( Arizona v. Washington (1978) 434 U.S. 497, 505, 98 S.Ct. 824, 54 L.Ed.2d 717.) "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged" applying the deferential abuse of discretion standard. ( People v. Bolden (2002) 29 Cal.4th 515, 555, 127 Cal.Rptr.2d 802, 58 P.3d 931.) Under this standard, we will not reverse " ‘unless the trial court exercised its discretion in an arbitrary,

[52 Cal.App.5th 955]

capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ " ( People v. Dunn (2012) 205 Cal.App.4th 1086, 1094, 141 Cal.Rptr.3d 193.)

The first question before us is whether the trial court granted Hoskins a mistrial. A careful review of the record shows that it did not. Defense counsel stated that he needed to withdraw due to health reasons and was uncertain whether he would be able to resume his representation even after a month's delay. The trial court responded that if it relieved counsel "we would have to declare a mistrial" as to Hoskins and appoint counsel for Hoskins. Thereafter, Simpson moved for a mistrial "based on the fact that a mistrial has been declared as to Mr. Hoskins." After hearing from the parties on whether a mistrial was appropriate for Simpson and Ware, the court relieved Hoskins's counsel and recessed the matter to obtain replacement counsel and "try to set new dates" for Hoskins.

When Hoskins's replacement counsel arrived, he accepted the appointment, but stated that it might take him more than a year to get ready for trial. Hoskins then addressed the court stating, "I understand you already—you ordered a mistrial on this case. I'm just asking if—is there a possible way that you could set aside that mistrial if I choose to represent myself and finish the rest of this—the remainder of the trial?" After Hoskins clarified that he was "asking for the right to represent [him]self for the remainder of the trial," the court stated, "If you want to represent yourself, that's something you can think about, Mr. Hoskins, but at this point in time I'm prepared to declare a mistrial and appoint a new attorney to represent you." The court then heard from the prosecutor whether legal necessity existed to declare a mistrial and whether the court had actually granted a mistrial. The court replied:

"Well, we'll have to go back and comb through the record to probably answer that definitively. But, yeah, I believe the Court did declare a mistrial this morning because I inquired of anyone if they had an objection before doing, ... But notwithstanding that, if in fact there's an opportunity for the Court to consider his request to go pro per, I don't want to suggest that I will close the door on him without giving consideration to that."

The clerk's minute order states that at 3:24 p.m. on April 25, 2016, the trial court declared a mistrial as to Hoskins. Our review of the reporter's transcript, however, shows that the court did not grant Hoskins a mistrial. The following day, the court allowed Hoskins to represent himself. "Conflicts between the reporter's

[266 Cal.Rptr.3d 248]

and clerk's transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporter's transcript unless the particular circumstances dictate otherwise." ( In re Merrick V. (2004) 122 Cal.App.4th 235, 249, 19 Cal.Rptr.3d 490.) Here, an irreconcilable conflict appears in the record. The circumstances, however, do not persuade us to depart from the usual presumption that the reporter's transcript prevails.

[52 Cal.App.5th 956]

Because the court did not grant a Hoskins a mistrial, the question becomes whether the trial court erred by not sua sponte granting a mistrial. As the People concede, the sudden illness of defense counsel during trial and the inability of replacement counsel to try the matter without undue delay created legal necessity to grant a mistrial. (See Manson, supra , 61 Cal.App.3d at p. 202, 132 Cal.Rptr. 265 [disappearance of defense counsel midtrial justified mistrial that did not bar retrial]; accord, State v. Anderson (2010) 295 Conn. 1, 3, 988 A.2d 276 [mistrial proper when prosecutor suddenly became seriously ill and unable to continue]; State v. Melton (Wash. Ct. App. 1999) 97 Wash.App. 327, 330, 333-334, 983 P.2d 699 [absence of defense counsel due to illness created manifest necessity for grant of mistrial, so that retrial was not barred by double jeopardy clause]; Westover v. State (1947) 66 Ariz. 145, 149, 185 P.2d 315 [jeopardy does not attach following mistrial due to judge's illness].) The granting of a mistrial under these circumstances would not have barred a retrial. ( Ibid. )

Significantly, the record shows the court understood that defense counsel's illness constituted legal necessity to grant a mistrial and that double jeopardy would not bar a retrial should it grant Hoskins a mistrial. Accordingly, we reject Hoskins's argument that the court abused its discretion by failing to make an informed decision on the existence of legal necessity for a mistrial. As we explain post , the trial court did not err by failing to sua sponte grant a mistrial because the grant of Hoskins's Faretta motion eliminated the need for a mistrial.

2. The grant of Hoskins's Faretta motion eliminated the need for a mistrial

a. Additional Background

After asking to represent himself for the remainder of trial, Hoskins stated that he represented himself at the preliminary hearing, he was a grown man, "And I feel like it's my decision. I know the consequences and I know benefits. I'm willing to take that gamble, and I feel like it should be up to me. I'm not under duress. I'm very competent." When the court asked Hoskins why he did not continue his self-representation, the following dialog took place:

"DEFENDANT HOSKINS: Because I feel like [defense counsel] is better qualified. But during the—I been paying attention since trial been going through, and I have seen that it's not what I thought it was. And the evidence isn't what they say it is to be. I feel like the case is self-explanatory. I feel like if I'm guilty, the jury is going to say I'm guilty regardless of the fact if I have [defense counsel] or not.

[52 Cal.App.5th 957]

"That's the burden the prosecution is trying to prove. Doesn't matter with defense counsel. I feel like I can finish this trial. It will be easier now that we're—done a majority of it, and [defense counsel] done all the hard work. It's the end. We're down to the closing and I feel like I can do that.

"THE COURT: I don't think we're down to the closing, Mr. Hoskins. Quite frankly, there are more witnesses to go through in the case.

[266 Cal.Rptr.3d 249]

"DEFENDANT HOSKINS: Once again, Your Honor, the witnesses don't necessarily apply to me. And, like, we haven't been questioning every single witness.

"THE COURT: Well, do you know what witnesses are left to be called, sir?

"DEFENDANT HOSKINS: That apply to me, I believe only—for the prosecution's case, [the gang expert]. My defense, I plan on calling some more witnesses. I have questions that I would like to ask them."

The court recessed the matter to review Hoskins's file. When back on the record, the court stated:

"Mr. Hoskins, I want to make sure the record's very clear. Your request to represent yourself under normal circumstances would be considered to be untimely because we are in the latter part of the trial itself. So if you had asked to represent yourself without [defense counsel] having taken ill, it would have been an easy answer for the Court. Would have been no because it would have been untimely. Would not have been any basis for the delay, no reasonable justification for the late request.

"I don't think your request is unreasonable given what has happened, and I don't think that you have done anything to try to obstruct or interfere with these proceedings in this case...."

The following day, the prosecutor expressed his belief that it was "unwise" for Hoskins to represent himself, but questioning whether the court could legally deny the request. The court stated it was not prepared to say that Hoskins's request was timely, but declined to fault Hoskins, finding that Hoskins was not trying to interfere with the proceedings. The court also stated:

"On the other hand, the Court does not find that it can reach a conclusion that Mr. Hoskins' request to represent himself is voluntary. And I do believe it is derived out of frustration, not necessarily anger but just frustration given the delay that he's faced previously, given the circumstance that he finds

[52 Cal.App.5th 958]

himself in today without counsel, and trying to move this matter forward so that he's no longer incarcerated, in his mind, unnecessarily.

"To suggest that that is a voluntary choice really is, from the Court's perspective, choosing the least of very poor choices that are before him.

"So to the extent that he's prepared to represent himself, yes, I think it is knowing. I think that it is unwise, but that is not the criteria for the Court. No matter how unwise it is, this Court is aware of its authority to not interfere with the constitutional right, and it is a constitutional right to represent oneself.

"So to that extent, it's very difficult for the Court to come up with any reasons to interfere with that exercise of that right, if that's in fact what Mr. Hoskins wants to do.

"I think for this Court it's unprecedented that it's happened in the way that it's happened. I'm satisfied that [defense counsel's] health—he's gravely ill. It poses for the Court a legal necessity to remove him and to grant him to withdraw from the case. I think that legal necessity is a basis that jeopardy is not an issue, that jeopardy does not attach when there's a legal necessity for the Court to declare a mistrial.

"On the other hand, if it is Mr. Hoskins' continued desire to represent himself and the People are concerned the Court may be in error, the Court finds that there's protections in place that if it allows Mr. Hoskins to represent himself and he gets convicted and he should not

[266 Cal.Rptr.3d 250]

have had to make that choice given the circumstances, that the appellate courts can certainly give him another day in court, whether it be to represent himself or to be appointed to counsel.

"Quite frankly, it may be having two bites of an apple. But be that as it may, it is not this Court's intention to delay Mr. Hoskins' right to have a speedy trial. But I am reluctant to have him have to represent himself under the circumstances which he finds himself because I do not believe that but for Mr. Ramirez' illness that he would have chosen to represent himself....

"So having said that, I'm not convinced that under analysis of the law that I'm prepared to embrace that it is completely voluntary on his behalf.

"But if it is your desire to continue to represent yourself, Mr. Hoskins, I'm going to have you go ahead and go through this form, read it, initial it, and then I'll go over it with you, and we'll go from there."

[52 Cal.App.5th 959]

The court reviewed the 23 paragraphs of the waiver of the right to self-representation form with Hoskins, and Hoskins confirmed his understanding of each paragraph. The trial court then told Hoskins it was prepared to sign the form, and once signed, Hoskins would be self-represented. The court asked Hoskins one last time, given everything they had discussed, whether he still insisted on representing himself. Hoskins said yes. The trial court then granted Hoskins's request to represent himself. Thereafter, the court ordered a runner for Hoskins, made sure that Hoskins received his prior counsel's notes and the discovery pertinent to the social media evidence.

b. Analysis

A criminal defendant has a federal constitutional right to self-representation at trial. ( Faretta, supra , 422 U.S. at p. 807, 95 S.Ct. 2525.) A trial court must grant a defendant's request for self-representation if the defendant is mentally competent, unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently after being apprised of the dangers of self-representation. ( People v. Welch (1999) 20 Cal.4th 701, 729, 85 Cal.Rptr.2d 203, 976 P.2d 754 ( Welch ).) "The right of self-representation is absolute, but only if a request to do so is knowingly and voluntarily made and if asserted a reasonable time before trial begins. Otherwise, requests for self-representation are addressed to the trial court's sound discretion. [Citation.] Moreover, whether timely or untimely, a request for self-representation must be unequivocal." ( People v. Doolin (2009) 45 Cal.4th 390, 453, 87 Cal.Rptr.3d 209, 198 P.3d 11.) " ‘[A] motion made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation.’ " ( People v. Danks (2004) 32 Cal.4th 269, 295, 8 Cal.Rptr.3d 767, 82 P.3d 1249.)

When ruling on a Faretta motion, "[t]he relevant inquiry is narrow. The trial court is not concerned with the wisdom of defendant's decision [regarding self-representation], or with how well he [or she] can do so. The sole relevant question is whether the defendant has the mental capacity to knowingly waive counsel while realizing the probable risks and consequences of self-representation. [Citations.] The court has discretion to determine the defendant's competence to waive counsel; its ruling will not be disturbed on appeal absent an abuse of that discretion." ( People v. Clark (1992) 3 Cal.4th 41, 107, 10 Cal.Rptr.2d 554, 833 P.2d 561.)

It is undisputed that Hoskins was mentally competent and that he knowingly,

[266 Cal.Rptr.3d 251]

and intelligently requested self-representation after being apprised of its dangers. ( Welch, supra , 20 Cal.4th at p. 729, 85 Cal.Rptr.2d 203, 976 P.2d 754.) Hoskins asserts that the court's comments regarding his motivation for requesting self-representation

[52 Cal.App.5th 960]

amounted to a finding that his request was not voluntary. On the issue whether Hoskins's request was voluntary, the court never expressly found Hoskins's request to be involuntary. Instead, when reviewed in context, the court's comments reflected its opinion that avoiding further delay was not a good reason for self-representation, but that Hoskins was "choosing the least of the very poor choices that are before him."

Significantly, Hoskins does not argue that his request for self-representation was involuntary in the sense that it was coerced or the result of duress. Rather, Hoskins stated that he was "not under duress" and "very competent." We conclude that Hoskins's selection of self-representation, over the delay necessitated by a mistrial and retrial with new counsel, did not render his choice involuntary. (See State v. Arguelles (Utah 2003) 63 P.3d 731, 751 [requiring a defendant to choose between competent appointed counsel and proceeding pro se does not amount to an involuntary decision]; McKee v. Harris (2nd Cir. 1981) 649 F.2d 927, 931 [a court may, under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation].) Accordingly, we reject Hoskins's argument that the trial court erred in granting the Faretta motion on the ground Hoskins's decision was involuntary.

Hoskins next claims that the court erred in granted his Faretta motion because it was untimely. We disagree.

Our high court has observed "that our imposition of a timeliness ‘requirement should not be and, indeed, must not be used as a means of limiting a defendant's constitutional right of self-representation.’ [Citation.] Rather, the purpose of the requirement is ‘to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.’ " ( People v. Lynch (2010) 50 Cal.4th 693, 722, 114 Cal.Rptr.3d 63, 237 P.3d 416, overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610, 637, 130 Cal.Rptr.3d 590, 259 P.3d 1186.) "[T]imeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made." ( Lynch , at p. 724, 114 Cal.Rptr.3d 63, 237 P.3d 416.) Where, as here, "a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion." ( People v. Bradford (1997) 15 Cal.4th 1229, 1365, 65 Cal.Rptr.2d 145, 939 P.2d 259.)

Hoskins sought to represent himself shortly after the court indicated it would need to declare a mistrial and appoint Hoskins new counsel. Under the circumstances presented, Hoskins's request was undoubtedly timely. Additionally, in addressing the timing of the request, the court expressly found the

[52 Cal.App.5th 961]

motion not "unreasonable given what has happened, and I don't think that [Hoskins has] done anything to try to obstruct or interfere with these proceedings in this case." On this record, we reject Hoskins's argument that the trial court should have denied his request as untimely.

Finally, Hoskins suggests the court erred in granting the Faretta motion because it never found that his request was unequivocal. "In determining on appeal whether the defendant invoked the right to self-representation, we examine

[266 Cal.Rptr.3d 252]

the entire record de novo." ( Dent, supra , 30 Cal.4th at p. 218, 132 Cal.Rptr.2d 527, 65 P.3d 1286.) Although the trial court never expressly found that Hoskins's request for self-representation was unequivocal, its act of granting the request shows it made an implied finding. The record supports this implied finding. ( People v. Tena (2007) 156 Cal.App.4th 598, 607, 67 Cal.Rptr.3d 412 [the failure to make express findings does not obligate reviewing court to conclude that appellant's Faretta rights were infringed].)

After his counsel withdrew, and after listening to discussion regarding how the trial would proceed, Hoskins initially inquired whether he could proceed in pro per. After additional discussion of the situation, Hoskins clearly and unequivocally asked for the right to represent himself for the remainder of trial. After more discussion, the court recessed the matter for the evening to allow the parties to research the matter. The following morning, the court stated that Hoskins had the night to think about his request and confirmed that Hoskins wished to represent himself for the remainder of the trial.

In summary, the record does not suggest that Hoskins's request to represent himself was legally insufficient. Rather, the record demonstrates that Hoskins knew exactly what he was doing. Thus, we conclude that the court did not err in granting Hoskins's Faretta motion.

V.

SENTENCING ISSUES

[52 Cal.App.5th 962]

DISPOSITION

Simpson's and Hoskins's convictions for gang conspiracy, counts 6 and 7 are reversed. Simpson's and Ware's sentences are vacated. The matter is remanded for resentencing to: (1) resentence Hoskins and (2) allow the trial court to exercise its discretion to strike the firearm use enhancements attached to counts 2 and 3 for Simpson and count 10 for Ware pursuant to section 1385. (See § 12022.53, subd. (h).) If the trial court elects to exercise its discretion to strike the firearm enhancement as to Ware on count 10, the trial court is to resentence Ware on count 10 under section 186.22. In all other respects, the judgments are affirmed. After resentencing, the court shall prepare amended abstracts of judgment and forward certified copies to the Department of Corrections and Rehabilitation.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.