THE PEOPLE, Plaintiff and Respondent, v. JAQUAN MURPHY et al., Defendants and Appellants.
B330286
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 7/23/25
(Los Angeles County Super. Ct. No. TA152334)
Laura R. Walton, Judge.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEALS from judgments of the Superior Court of Los Angeles County, Laura R. Walton, Judge. Affirmed.
The Law Office of J. Blacknell and Kellen I. Davis for Defendant and Appellant Jaquan Murphy.
Barhoma Law and Matthew Barhoma for Defendant and Appellant Markey Lamont Smith.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Thomas C. Hsieh, and
Jaquan Murphy and Markey Lamont Smith appeal from the judgments of conviction entered against them following a joint jury trial. The jury found Murphy and Smith guilty with respect to a gang shooting on April 11, 2019 of first degree murder, five counts of attempted murder, and conspiracy to commit murder. The jury also found Murphy guilty of two counts of attempted murder arising from a prior shooting on April 3, 2019.
On appeal, Murphy and Smith contend the trial court abused its discretion in admitting irrelevant and cumulative gang evidence; the prosecutor violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose exculpatory information; the accomplice testimony was not supported by sufficient corroborating evidence; and substantial evidence did not support the convictions. Murphy also argues the court erred in admitting Smith‘s statements to a jailhouse informant and detectives during a Perkins operation.1 Murphy also asserts his trial attorney provided ineffective assistance of counsel by failing to object to Smith‘s incriminating statements made during the Perkins operation; improperly eliciting prejudicial testimony from Murphy when Murphy testified in his own defense; and failing to request a remedy for the Brady violation. We affirm.
A. The Prosecution‘s Case
1. The March 29, 2019 shooting
On March 29, 2019 Dulce Murphy2 was driving her car with Smith in the front passenger seat; three of Smith‘s friends were in the rear seats. When they were near Manchester Park, located at 88th Street and Hoover Street in Los Angeles, a man on a moped shot at Dulce‘s car from the right side, injuring Smith‘s right arm. Dulce‘s face was also bleeding, which she believed was from broken glass. Dulce drove to Centinela hospital, where Smith was treated for his injury. Dulce testified at trial that during the 10-minute drive to the hospital, none of the occupants in the car talked about who had shot at the car or whether there would be retaliation.
Los Angeles Police Officer Brett Kaller testified that he interviewed Dulce and Smith at the hospital on the day of the shooting. Dulce told Officer Kaller that a male dressed in all black shot at her car, cracking the front windshield, and that Smith was the only passenger.3 Smith said he was seated in the front passenger‘s seat and, while he was looking down at a text message, he was shot. Officer Kaller testified Smith was uncooperative and did not provide any information about who he believed shot at him. Smith initially said he did not have a phone, although there was a cellphone lying next to him on the
Rayshawn Dale, a Hoover Criminals gang member with the moniker Baby Tre Menace, was a key witness for the prosecution.4 Dale testified that on March 29 he was “[h]anging out in the shopping center” on Manchester Avenue and Figueroa Street with Smith, who went by the moniker “Chip Seven.” Dale and Smith were in the same set (8 Tre) of the Hoovers. Dale left Smith to go to a check-cashing store on Manchester Avenue and Broadway. Dale was at the store when he received a phone call notifying him that Smith had been shot by a man on a minibike. When he walked out of the store, Dale saw two men riding by on minibikes on Manchester Avenue heading eastbound toward Main Street, away from the 110 freeway. About 20 minutes later he saw the two minibikes outside an apartment complex in Main Street Crips territory. Dale then went to Centinela hospital and Dale saw that the car Smith was in “got shot up.”5 Dale took photographs of the car, and he sent them to other Hoovers “[t]o
2. The April 3, 2019 shooting
On April 3, 2019 Israel Stewart and Deon Outten were attempting to fix Outten‘s car, which was parked outside an auto parts shop located near the corner of 98th and Main Streets, in Main Street Crips territory. Outten was in the driver‘s seat, and Stewart was in the front passenger‘s seat. Stewart was looking at his cellphone when he heard Outten say, “Aye, what is you doing?” Stewart looked up and saw a young black male shooting at them. Outten was hit once in the arm. Stewart “tried to hop out the car,” and he got hit in the legs and hip by six bullets. Stewart fell to the ground and tried to crawl to the back of the car.
At approximately 6:22 p.m. Los Angeles Police Sergeant Keleigh Edwards arrived at the scene in response to a radio call. Sergeant Edwards observed that Outten had an injury to his left forearm and Stewart was on the ground with one or more gunshot wounds to his leg. An ambulance took Stewart to the hospital, where he stayed for two months and had multiple surgeries.
Dale testified that on the day of the April 3 shooting, he saw some Main Street Crips hanging out near 98th Street and Main Street, one of the Main Street Crips hangouts. Dale told other Hoovers what he saw; and he, Murphy, and a gang member identified as Shady Tre went in two cars to 98th and Main Street. Murphy stopped his car in an alley on 98th Street, and Shady Tre “jumped out” of the vehicle, exited the alley, and shot at a man. Dale, who was in a second car, witnessed the shooting and drove
Police obtained surveillance video footage from the auto parts shop and a nearby residence, which showed a white or silver Ford Fusion—with blue tape around the rear window and damage to the front right side—circling the area twice. Los Angeles Police Officer Isaac Fernandez testified the fact the car was circling caught his attention because “[t]ypically that‘s what rival gang members do as they‘re looking for a victim to shoot or commit a crime against.” Prior to the shooting, the Ford Fusion passed Outten‘s car and entered an alley just south of the auto parts shop. Then the shooter, wearing a white sweater with black block lettering that said “Nike” on the front, walked through the alley and approached Stewart and Outten, who were seated inside the car. The shooter fired numerous rounds into the car and ran back into the alley. Video footage showed the Ford Fusion quickly exiting the alley after the shooting.
Officer Fernandez conducted a police database search and found that in December 2018 police had stopped a Ford Fusion driven by Murphy near the area of the April 3 shooting. The Ford Fusion was registered to Murphy‘s brother, Javonn Murphy (Javonn). Officer Fernandez typed the car‘s license plate into a license plate reader system and saw a March 31, 2019 photograph of a Ford Fusion with its rear window missing and “a plastic covering around it as if it had been involved in some kind of accident or possibly been shot out by someone or vandalized by someone,” as well as damage to the front right side. Officer Fernandez determined the Ford Fusion from the March 31 photograph matched the vehicle seen in the surveillance camera footage of the April 3 shooting, based on its collision damage.
3. The April 11, 2019 shooting
Shortly after 6 p.m. on April 11, 2019, Latoya West, Glenn Mitchell, Lautasha Wright, Katherine Love, Dunjae Wynn, Timothy Terry, and Aaron Pleasant were chatting outside a
West saw “a car pull[] up and a girl was hanging out the window hollering.” As West was heading inside the liquor store, she got shot in her buttocks and back. Wright, who was seated on a crate in front of the store, heard multiple gunshots. She saw two cars pull up, with gunfire coming from either the backseat or the front passenger seat of one of the cars. As Wright tried to run inside the store, she fell down, and a bullet hit her elbow. Love told Wright that she saw the people in the car and the shooter was in the backseat.6 Terry was talking to “Gangster Glenn” (Mitchell) when he heard gunshots and got on the ground. Once the car left, Terry got up and saw that Mitchell had been shot. Terry and several other people called 911. Mitchell died from a gunshot wound to his abdomen and had another gunshot wound to his right forearm.
Dale testified that on April 11, the day of rapper Nipsey Hussle‘s funeral procession, he and another Hoover gang member talked about disrupting the procession because Nipsey Hussle was from a rival gang, the Rollin 60‘s Crips. Dale and the other gang member decided not to go to the procession because older members of the Hoovers said they should respect the rapper‘s death. Smith joined them about an hour later, and Dale suggested they go to Main Street (away from the procession).
Dale testified that Murphy drove off with Smith as a passenger. Dale followed in his car. The two cars took separate paths once they got onto Main Street. Dale drove by the liquor store and told Murphy and Smith by cellphone that there were people gathered in front of the liquor store, but he did not see Tiny Red. Dale‘s and Murphy‘s cars passed each other, and Dale made a U-turn to return to the store. When Dale got to 101st Street, he saw Murphy‘s car slow down in traffic, then Dale heard the gunshots and saw the car drive off. Dale also heard some women screaming, and he saw a man lying on the ground. Dale returned to the Hoovers’ hangout on 84th and Hoover Streets. Murphy told Dale that he left his car near his Mother‘s house because “they had just [done] the shooting.” Smith was also at the hangout, “just chillin.” Then someone (unidentified) sent a text message to Dale, stating, “They got your car on the camera.” Smith told Dale there were “cameras over there,” and so Dale and Smith returned to the liquor store in Dale‘s car to see if that was
Dale returned to the Hoovers’ hangout. An older Main Street Crip member called Murphy‘s father, Snoop (who Dale said was a Hoover gang member), and asked whether young Hoovers had committed the shooting. Snoop asked Dale and others whether they had gone over to Main Street Crips territory, and they denied it. The next day, Dale sent a text message to Smith stating, “And on Hoover, ain‘t no cams.” Smith responded, “Tops big bro.”
Los Angeles Police Detective Iris Romero went to the crime scene and recovered a deformed bullet that had been discharged from a firearm. She also found bullet holes in the concrete wall of the liquor store. Seven days later, a Los Angeles Police Department forensic science technician removed two bullets from the wall. Los Angeles Police Department criminalist Kuang Siu examined the recovered bullets and determined one bullet was “consistent with a[n] ammunition design of a nine-millimeter Luger, .38 special, .38 super auto, and .357 magnum,” and a second bullet came from a “nine-millimeter Luger or .38 super auto.” Both bullets could have been fired from a nine-millimeter Luger.
Los Angeles Police Detective Nellie Knight obtained surveillance camera footage from two locations near the liquor store, in addition to video footage from the Hoover territory around 84th Street, northwest of the crime scene. The video footage showed that at 6:15 p.m. on April 11, the Ford Fusion (with damage to its front right side) travelled to the liquor store. The Ford Fusion and a second car arrived at the area near the liquor store, then the shooting took place at approximately
After reviewing the video footage of the April 3 and 11 shootings, Detective Knight investigated the Ford Fusion and determined that police had made traffic stops of Murphy while he was driving the car in December 2018 and April and May 2019. During the December 9, 2018 traffic stop for a broken front headlight, Murphy told the police officer that he had purchased the vehicle from his brother in November 2018. Another police officer stopped Murphy when he was driving the Ford Fusion on December 17, 2018. On April 14, 2019 a third police officer saw the Ford Fusion blocking traffic with the driver‘s side door open. Murphy then ran up to the driver‘s side of the car, got in, and parked it on a nearby street. The officer detained Murphy because the vehicle had an expired registration and was a vehicle of interest. The officer noticed the vehicle had damage to the front-side fender and a cracked windshield. Murphy told the officer that he owned the car, and he added that he had been living in the car for the past few days because he had gotten into arguments with his mother. On April 15, 2019 a police officer stopped Murphy while driving the Ford Fusion and cited him for an expired registration and driving with a suspended license. On May 17 a police officer saw the Ford Fusion parked at a red curb. Murphy told the officer he got the car from his brother, and he had driven it to the location. And on May 18 a police officer
On May 29, 2019 police officers arrested Murphy for human trafficking and pimping. They recovered four cell phones from the car he was driving, which was a Lexus registered to him. The data extraction report for one of Murphy‘s phones showed that Smith‘s cellphone number was saved under the name “C7.”
4. The cellphone location evidence
Federal Bureau of Investigation (FBI) special agent Michael Easter conducted a historical analysis of Murphy‘s and Smith‘s cellphone records. Agent Easter created maps showing where the cellphones were located in relation to the March 29, April 3, and April 11, 2019 incidents based on each cellphone‘s cell tower usage. Agent Easter explained that a cellphone uses the tower with the best signal, which is predominantly, but not always, the closest tower.
At about 11:30 a.m. on March 29, 2019 Smith‘s cellphone was active in the area of West 84th Street between Vermont Avenue and Hoover Street. Starting at about 11:49 a.m., Smith‘s cellphone started to use cell towers further west, using a cell tower in Inglewood at 12:17 p.m. Then at 1:43 p.m. the cellphone started to use cellphone towers near the Centinela hospital and stayed in that area until approximately 1:28 p.m. on the following day.
On April 3, 2019 Murphy‘s cellphone was active in the area around Manchester Avenue and Broadway between 6:04 and 6:06 p.m. Four minutes later the cellphone showed activity further south, in the area of 108th Street and the 110 freeway. At 6:16 p.m. the cellphone activity was consistent with the
On April 11, 2019, between 5:59 and 6:15 p.m., both Murphy‘s and Smith‘s cellphones were active around West 84th Street between Vermont Avenue and Hoover Street. At 6:15 p.m. Murphy made a call to Dale that lasted over 11 minutes. Around the time of the call, Murphy‘s car and Dale‘s car left Hoovers territory. At 6:22 p.m. Murphy‘s cellphone was active in the area of 107th Street near Main Street (just south of the crime scene). Two minutes later, Murphy‘s cellphone was active in the area of West 98th Street and Broadway. Between 6:28 and 6:35 p.m., both Murphy‘s and Smith‘s cellphones showed activity in the area of Manchester Avenue and the 110 freeway. At 6:35 p.m. Murphy received a call from Dale that lasted 43 seconds.
5. Smith‘s statements during the Perkins operation
Smith was arrested on September 15, 2020. The police placed Smith in a jail cell with an undercover Perkins agent, who claimed to be a Grape Street Watts gang member.8 While Smith
After the jail cell conversation, Detective Knight and Los Angeles Police Detective David Howell interviewed Smith. Detective Knight advised Smith of his Miranda rights11 before asking him questions about the April 11 shooting. Smith stated that on April 11, 2019 he was at home in Bellflower babysitting
6. Additional gang evidence
Terry testified he had been a Main Street Crip for 30 years, and he opined “the young people are wild” because “they don‘t care” and “they do anything.” Terry stated the liquor store where the April 11 shooting took place was a Main Street Crips hangout, along with the area of 98th and Main Streets, where the April 3 shooting took place. The Hoover Criminals territory was west of the 110 freeway. At one time the two gangs were allied, and families would have both Main Street Crips and Hoover gang members in the same family. At some point between 1999 and 2004, however, the two gangs became rivals. Smith‘s attorney asked Terry whether he had been in jail and “heard people in the holding tank brag about things they did on the streets” or “talk about a shooting to try to gain credibility with other inmates.” Terry answered “yes” to both questions.
Dale testified about gang monikers and demonstrated some Hoover gang hand signs. The Hoovers’ rivals were the Neighborhood Crips, the Main Street Crips, and the Denver Lane Bloods. He stated that until 2008 the Hoover Criminals and Main Street Crips got along, and it was common for a family to have members in both gangs. The two gangs’ territories were adjacent to each other, separated by the 110 freeway. If a rival gang disrespected the Hoovers, the Hoovers would retaliate, including by shooting at them. The two gangs would disrespect each other by calling the other gang derogatory names and spray painting the derogatory names in the other gang‘s territory. Dale
Dulce, who was called as a prosecution witness, testified she had never heard of the Main Street Crips or Hoover Criminals. She had never heard anyone call Smith or Murphy by a nickname, and she had never seen either flash gang hand signs. Dulce testified Murphy was “very humble, respectful, generous, and loving.” Dulce also stated Murphy had “never been aggressive” or violent. Dulce denied Murphy was a Hoover gang member, stating she had “never seen him” do “any gang-related stuff.” When the prosecutor showed Dulce photographs from Murphy‘s social media account depicting Murphy making hand gestures, Dulce testified she had never seen Murphy make those hand gestures and did not know what they meant or that they were gang hand signs. With respect to a photograph of Murphy holding a gun, Dulce stated it could be a BB gun, a water gun, or an actual gun. She had never seen Murphy holding a gun, and he did not have access to a gun. When asked whether the social media photographs changed her opinion that Murphy was not violent, Dulce responded, “He is not violent. No, he‘s not.”
B. Murphy‘s Case
Murphy, Murphy‘s older brother, Javonn, and Murphy‘s father, Javonnie Murphy (Javonnie), testified on Murphy‘s behalf. Murphy testified he was not involved in the April 3 or 11 shooting. He acknowledged he was a current Hoover gang member with the moniker “Baby Tre Bang.” Javonn first gave Murphy “custody, control, or possession” of the Ford Fusion in
Javonn testified the gray 2007 Ford Fusion was registered to him, and he had purchased the car sometime between 2010 and 2015. In April 2019 Javonn parked the car on 84th Street between Hoover Street and Vermont Avenue. He did not live there, but he had a lot of family in the area. He knew Murphy drove the car, but he did not authorize anyone else to drive it. There was only one key to the car, which Javonn kept, but he sometimes left the key in the car. Javonn received several tickets for other people who drove the Ford Fusion; he did not know them. On one occasion, Javonn was at a gas station on Hoover Street and Manchester Avenue when he saw a person he did not know drive the Ford Fusion with two strangers as passengers. Javonn was not affiliated with any gang; however, he knew members of his family were involved in a gang.
Javonnie testified he was a former Hoover gang member, but he stopped being affiliated with the gang 20 years ago, after he was shot. Javonnie did not like the fact that Murphy joined the Hoovers. Javonnie knew Murphy used the name “Tre Bang,” but there were “multiple Tre Bangs.” Javonnie was aware that Javonn owned the Ford Fusion, and Javonnie had seen Murphy drive the car. Javonnie also saw multiple people, including Dale, drive the car. It was common for a gang member to use another gang member‘s car, sometimes without asking. On April 11, 2019 Javonnie‘s uncle picked him up on 84th Street, and they went to Lancaster around 12:00 or 1:00 p.m. and stayed until around
C. Smith‘s Case
Misha Smith (Misha), Smith‘s oldest sister, testified on his behalf. In March 2019 Misha lived with Smith and their mother in Bellflower. Misha visited Smith at the hospital when he was shot. She saw that the black Impala that Smith had been in had bullet holes on the right front passenger side of the car. Smith had a cast on his right arm, which was removed two weeks later. Misha explained Smith had tattoos on his face and body because “he like[d] being an artist,” specifically, a rap artist. Misha did not know Smith to be a gang member, and she had never seen him with a gun. She also denied hearing anyone refer to Smith as “Chip.” The family called Smith “Chucky,” a name their grandfather gave him.
D. The Verdicts and Sentencing
The jury found Murphy guilty with respect to the April 3 shooting of two counts of attempted willful, deliberate, and premeditated murder (
The trial court sentenced Murphy to an aggregate state prison term of 100 years to life plus two life sentences, each with a 15-year minimum parole eligibility term. The court sentenced Smith to an aggregate state prison term of 75 years to life plus one life sentence with a 15-year minimum parole eligibility term, plus eight months.12 Murphy and Smith timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Admitting the Gang Evidence
1. The trial court proceeding
At a pretrial hearing, Murphy and Smith moved to exclude or limit the prosecution‘s gang evidence. The prosecutor made an offer of proof that he intended to present evidence that the defendants were members of the Hoover gang, that the shootings took place in territory controlled by the Main Street Crips, and that animus between the gangs resulted in “shootings back and forth.” The prosecutor argued the evidence was essential to show the motive for the shootings on April 3 and 11 was to retaliate for the shooting of Smith by the rival Main Street Crips on March 29 and to provide context for testimony about the
Smith‘s attorney argued the trial court had granted the defendants’ motion to bifurcate trial on the gang enhancement allegations, and evidence of the defendants’ gang membership and gang rivalry was not necessary to prove the charges; rather, the prosecution should focus on evidence of the defendants’ involvement in the shootings. Murphy‘s attorney asserted that the prejudice from the gang evidence would far outweigh the probative value and confuse the jury as to what the case was about.
The trial court denied the defendants’ motion to exclude the gang evidence. The court reasoned the April 3 and 11 shootings were alleged to be in retaliation for the March 29 shooting committed by the Main Street Crips. Further, the jury instructions stated the jury may consider motive in determining whether a defendant committed a crime. Thus, “a limited amount of gang testimony is admissible for the People to prove that there was a motive in the case.” In addition, the planning of the murder as retaliation for the March 29 shooting was relevant to prove the overt acts for the conspiracy charge. The court added that the prosecution‘s key witness (Dale) was himself a gang member, and the prosecution would rely on him instead of a gang expert to describe the gang rivalry and motive for the shootings.
“In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), known as the STEP Forward Act of 2021. (Stats. 2021, ch. 699, § 1.) Assembly Bill 333 amended
We recognize, as defendants point out, that in enacting Assembly Bill 333 and requiring bifurcation of trial on the gang enhancement under
We review a trial court‘s ruling on the admissibility of gang evidence for an abuse of discretion. (People v. Ramirez, supra, 13 Cal.5th at p. 1095; see People v. Chhoun, supra, 11 Cal.5th at p. 33 [“‘“The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court‘s decision exceeds the bounds of reason.“‘“].)
3. The probative value of the gang evidence was greater than any prejudice
Murphy and Smith contend the trial court abused its discretion in admitting excessive gang-related evidence, including Dale‘s testimony about his own involvement with the Hoover gang, the gang‘s hand signs, gang monikers, and rival gangs; Murphy‘s social media account showing him making hand signs and using offensive language; cross-examination of Murphy and Javonnie about the “lifestyle” and “mindset” of Hoover gang
Officer Fernandez‘s testimony about Murphy‘s social media posts showing him making Hoover gang hand signs, his description of the Hoover and Main Street Crip gang sets, the historic rivalry between the two gangs, the gangs’ territories, and the retaliatory shootings the two gangs had committed against each other were highly relevant to prove Murphy‘s and Smith‘s motives, intent to kill, and involvement in the April 3 and April 11 shootings.13 (See People v. Holmes, McClain and Newborn, supra, 12 Cal.5th at p. 772 [“Given the circumstances of the shootings, which were clearly intended as gang retaliation, defendants’ membership was highly relevant to prove their involvement, motive, and intent to kill. The prosecution had a
Likewise, Dale‘s testimony about his and defendants’ membership in the Hoover gang, the Hoovers’ rivalry with the Main Street Crips, and related testimony about the gangs was highly probative of defendants’ motive and intent to kill. Although Officer Fernandez provided similar testimony, Dale‘s testimony was relevant because it showed he was knowledgeable about the gangs and could provide credible testimony about the March and April shootings. Similarly, the photographs of Dale making gang signs with Murphy and Smith was relevant to his credibility in describing the events of March 29, April 3, and April 11 and the involvement of Murphy and Smith in those events.14 The prosecutor‘s cross-examination of Murphy about
The trial court also did not abuse its discretion in allowing the prosecutor to question Javonnie about his gang membership in light of Javonnie‘s testimony on direct examination he had retired from the Hoover gang 20 years earlier. As discussed, Dale testified Javonnie was a current Hoover gang member, and an older Main Street Crip gang member had called Javonnie to inquire about the April 11 shooting. The prosecutor‘s questioning of Dulce about Murphy‘s and Smith‘s gang membership (which she denied) and photographs of Murphy making gang hand signs was relevant to Dulce‘s credibility given her testimony that Murphy had “never been aggressive” or violent, and Murphy did not have “it in him” to shoot someone. The questioning of Misha about Smith‘s tattoos and gang membership was likewise proper impeachment given her testimony that Smith‘s “C7” tattoo was only for artistic purposes. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168 [“Gang evidence is . . . relevant on the issue of a witness‘s credibility.“]; In re Ross (1995) 10 Cal.4th 184, 207 [“‘Once appellant placed his general character in issue, the prosecutor was entitled to rebut with evidence or argument suggesting a more balanced picture of his personality.‘“].)
(People v. Pineda (2022) 13 Cal.5th 186, 237-238 [defendant forfeited contention cross-examination about gang membership was improper given failure to timely object].) The Attorney General asserts forfeiture as to several other arguments made by defendants regarding admission of gang evidence, but most of the testimony at issue was the subject of defendants’ motions in limine.
The trial court did not abuse its discretion in finding the probative value of the gang evidence—to prove motive and intent to kill and to assess witness credibility—exceeded its prejudicial
B. Murphy Has Not Established Ineffective Assistance of Counsel Based on His Attorney‘s Direct Examination
To prevail on a claim of ineffective assistance of counsel, a defendant bears the burden to show (1) his or her “‘“‘counsel‘s representation fell below an objective standard of reasonableness under prevailing professional norms‘“‘” and (2) he or she “‘“‘suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.‘“‘” (People v. Johnson (2016) 62 Cal.4th 600, 653; accord, People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel); Strickland v. Washington (1984) 466 U.S. 668, 687-692.)
Moreover, “[o]n direct appeal, if the record ‘“sheds no light on why counsel acted or failed to act in the manner challenged,“’ we must reject the claim ‘“unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.“‘” (People v. Caro (2019) 7 Cal.5th 463, 488; accord, Mickel, supra, 2 Cal.5th at p. 198 [“a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had ‘“‘no rational tactical purpose‘“’ for an action or omission“]; People v. Lopez (2008) 42 Cal.4th 960, 972 [“except in those rare instances where there is no conceivable tactical purpose for counsel‘s actions, claims of ineffective assistance of counsel should be raised on habeas corpus, not on direct appeal“].) We presume “that counsel‘s actions fall within the broad range of reasonableness, and afford ‘great deference to counsel‘s tactical decisions.‘” (Mickel, at p. 198; accord, People v. Bell (2019) 7 Cal.5th 70, 125 [“‘Unless a defendant establishes the contrary, we shall presume that “counsel‘s performance fell within the wide range of professional competence and that counsel‘s actions and inactions can be explained as a matter of sound trial strategy.“‘“].)
Murphy contends his trial attorney rendered ineffective assistance of counsel by eliciting prejudicial testimony from Murphy when he testified in his own defense. Murphy argues his attorney inexplicably elicited from him that he was in custody at the time of trial and had been in custody for two-and-a-half years. But Murphy later testified that “being in jail for the two years” led him to change his mindset about being in a gang (to be more negative) because during the time he was in custody he observed family and friends who he thought loved him “just changed on” him. His attorney could have had a tactical reason for eliciting this evidence to cast Murphy in a more favorable light by showing he no longer wanted to be involved with the Hoovers.
Murphy also criticizes his trial attorney for eliciting testimony about his being stopped by the police for pimping and pandering. His attorney asked whether Murphy was aware that a police officer had implicated him in a pimping and pandering allegation. Murphy responded that he was aware of the allegations and still faced the charges. He explained that a police officer stopped him and pulled him out of the car, stating that he was under investigation for prostitution and pimping. Murphy denied that he was a pimp and explained the passenger in his car was his little cousin, and he gave her rides in exchange for gas money.
Murphy‘s attorney had a tactical reason to ask Murphy about the pimping allegation to give Murphy an opportunity to refute the allegation that he was a pimp and involved in prostitution, which came out during testimony from Los Angeles Police Officer Jose Zavala. Officer Zavala had testified during the prosecution‘s case that he stopped Murphy on May 29, 2019 and arrested him for pimping and prostitution, at which time the officer obtained from Murphy‘s vehicle four cellphones, including one from Murphy that was used for the investigation into where his cellphone was at the time of the shootings. Officer Zavala explained he arrested Murphy on May 29 because Murphy had
Murphy‘s trial attorney may have also had a tactical reason for eliciting testimony from Murphy about his being arrested for the robbery and murder of the rapper Pop Smoke. Detective Knight‘s recorded interview of Dale was played for the jury during the prosecution‘s case. In the interview, Dale implicated Murphy in the murder of Pop Smoke. Murphy‘s attorney asked Murphy whether he heard in the taped interview that Dale had implicated him in the Pop Smoke murder. Murphy answered, “I believe Detective Knight told [Dale] that I was also being arrested for the Pop Smoke. I think he just asked her, like, oh, oh, is [Murphy] down for that I think she brought that up to him.” Murphy‘s attorney then asked, “[Y]ou weren‘t involved in that incident, is that correct?” Murphy replied, “No, sir, I wasn‘t charged in the incident.” This was consistent with Detective Knight‘s testimony at trial that at the end of the investigation, Murphy had not been charged with the Pop Smoke murder. Murphy‘s attorney therefore had a tactical reason to ask Murphy about his arrest for the Pop Smoke murder so that Murphy could deny any involvement and cast doubt on Dale‘s credibility.
Finally, Murphy contends his attorney was ineffective by eliciting testimony that Murphy had “custody, control, or possession of the Ford Fusion.” Murphy‘s attorney had a tactical reason to have Murphy acknowledge that he drove the Ford Fusion. Prior to Murphy‘s testimony, the prosecutor had presented testimony from five police officers who had stopped Murphy while he drove the Ford Fusion. Murphy‘s admission that he drove the Ford Fusion bolstered his credibility. The jury
C. Murphy and Smith Forfeited Their Brady Challenge, and Murphy‘s Trial Attorney Did Not Render Ineffective Assistance of Counsel
“‘“In Brady [v. Maryland (1963) 373 U.S. 83], the United States Supreme Court held ‘that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.’ [Citation.] The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused [citation], that the duty encompasses impeachment evidence as well as exculpatory evidence [citation], and that the duty extends even to evidence known only to police investigators and not to the prosecutor [citation]. Such evidence is material ‘“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”’ [Citation.] In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government‘s behalf in the case, including the police.‘”‘” (People v. Masters (2016) 62 Cal.4th 1019, 1066-1067; accord, In re Masters (2019) 7 Cal.5th 1054, 1086-1087.) “Evidence actually presented at trial is not considered suppressed for Brady purposes, even if that evidence had not been previously
“For a defendant to obtain relief under Brady, ‘“‘[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.’ [Citation.] Prejudice, in this context, focuses on ‘the materiality of the evidence to the issue of guilt and innocence.’ [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction ‘more likely’ [citation], or that using the suppressed evidence to discredit a witness‘s testimony ‘might have changed the outcome of the trial’ [citation]. A defendant instead ‘must show a “reasonable probability of a different result.”‘”‘” (People v. Masters, supra, 62 Cal.4th at p. 1067; accord, In re Masters, supra, 7 Cal.5th at p. 1087.) We independently review whether there has been a Brady violation, giving “‘great weight to any trial court findings of fact that are supported by substantial evidence.‘” (People v. Masters, at p. 1067; accord, In re Masters, at p. 1087.)
During trial Detective Knight testified that only Murphy had been stopped by the police for driving the Ford Fusion. In cross-examination, Detective Knight acknowledged, after having her recollection refreshed, that at the preliminary hearing she was asked whether Travelle Mitchell (whom she described as a gang member associated with Murphy) had ever been stopped in the Ford Fusion and given a traffic citation. Detective Knight stated at trial with respect to that question, “I responded with
Smith contends the prosecutor committed a Brady violation by failing to disclose to defense counsel the database that Detective Knight referenced in her preliminary hearing testimony showing that Travelle Mitchell had driven the Ford Fusion. Smith also argues the prosecution was required to turn over the social media records relating to Zaihid Richardson. Murphy argues the prosecution was required to disclose the database of all individuals who had driven the Ford Fusion around the time of the shootings, as well as documentation of Murphy‘s five traffic stops in the vehicle. However, Murphy and Smith forfeited their Brady arguments by failing to raise them in the trial court. (People v. Williams (2015) 61 Cal.4th 1244, 1284 [defendants forfeited claim “the prosecution withheld impeachment evidence” in violation of Brady “because it was not made below“]; People v. Morrison (2004) 34 Cal.4th 698, 714 [Brady claim forfeited where defendant failed to object or request
Murphy also contends his trial attorney rendered ineffective assistance of counsel because he failed to make a motion to obtain evidence that other individuals drove the Ford Fusion or to request a remedy for the Brady violation. Murphy argues this was a critical piece of evidence because there was no direct evidence of the identity of the driver or shooter, and the only circumstantial evidence that Murphy was a perpetrator was that he had access to the vehicle.
Murphy has not met his burden to show ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at pp. 687-692; Mickel, supra, 2 Cal.5th at p. 198; People v. Johnson, supra, 62 Cal.4th at p. 653.) The record does not reflect why Murphy‘s trial attorney elected not to raise a Brady violation at trial, especially given Detective Knight‘s testimony at the preliminary hearing about the database. Murphy‘s attorney could have had tactical reasons for not requesting discovery about whether other individuals drove the Ford Fusion. Murphy‘s attorney was able to impeach Detective Knight with her preliminary hearing testimony in which she stated a database showed Travelle Mitchell had driven the Ford Fusion. In addition, although Detective Knight initially denied at trial
D. The Aranda-Bruton Rule Does Not Bar Smith‘s Statements to the Perkins Agent or the Detectives
Murphy contends the admission of Smith‘s unredacted statements made to the undercover Perkins agent and to detectives violated his Sixth Amendment confrontation clause rights under the Aranda-Bruton doctrine. (Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.) “The Aranda-Bruton doctrine ‘addresses a specific issue that arises at joint trials when the prosecution seeks to admit the out-of-court statement of a nontestifying defendant that incriminates a codefendant,’ and prevents such a statement‘s admission even if a limiting instruction is given to the jury.” (People v. Tran (2022) 13 Cal.5th 1169, 1194; accord, People v. Capistrano (2014) 59 Cal.4th 830, 869, overruled on another ground in People v. Hardy (2018) 5 Cal.5th 56, 104.)
“[T]he Confrontation Clause is not violated by the admission of a nontestifying codefendant‘s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant‘s name, but any reference to his or her existence.” (Richardson v. Marsh (1987) 481 U.S. 200, 211;
The California Supreme Court in People v. Tran, supra, 13 Cal.5th at page 1195 explained that Crawford v. Washington (2004) 541 U.S. 36 “narrowed confrontation clause rights under the Aranda-Bruton doctrine to testimonial statements only.” (Accord, People v. Cortez (2016) 63 Cal.4th 101, 129 [“‘the confrontation clause applies only to testimonial hearsay statements and not to [hearsay] statements that are nontestimonial‘“].) “‘Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.‘” (People v. Sanchez (2016) 63 Cal.4th 665, 688; accord, People v. Fayed (2020) 9 Cal.5th 147, 168 [“a declarant‘s hearsay statement is testimonial if made ‘with a primary purpose of creating an out-of-court substitute for trial testimony‘“].)
Because Smith‘s statements to the Perkins agent were not testimonial, Aranda-Bruton does not apply. (People v. Almeda, supra, 19 Cal.App.5th at p. 362 [“’Bruton is no longer applicable to a non-testimonial “prison yard conversation” because “Bruton is no more than a by-product of the Confrontation Clause”‘“]; People v. Washington (2017) 15 Cal.App.5th 19, 29 [same].)
Murphy makes the additional argument that Smith‘s denial during the police interview of any involvement in a gang or the April 11 shooting, combined with Murphy‘s similar denials,
E. The Accomplice Testimony Was Sufficiently Corroborated by Other Evidence
”
“[E]vidence corroborating accomplice testimony ‘“need not independently establish the identity of the victim‘s assailant” [citation], nor corroborate every fact to which the accomplice testifies [citation], and “‘may be circumstantial or slight and entitled to little consideration when standing alone.‘” [Citation.] But the evidence must nonetheless connect the defendant to the crime itself, rather than simply connect the accomplice to the crime.” (People v. Perez (2018) 4 Cal.5th 421, 452; accord, People v. Jasso (2025) 17 Cal.5th 646, 685 [corroborating evidence “‘need not be sufficient to establish every element of the charged offense‘“; rather, “‘[i]t is “sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth“‘“].) “[A]n accomplice‘s testimony is not corroborated by the circumstance that the testimony is consistent with the victim‘s description of the crime or physical evidence from the crime scene. Such consistency and knowledge of the details of the crime simply proves the accomplice was at the crime scene, something the accomplice by definition admits. Rather, under
Contrary to defendants’ contentions, Dale‘s testimony was sufficiently corroborated by independent evidence that connected Murphy to the April 3 shooting and Murphy and Smith to the April 11 shooting. Officer Fernandez and Terry testified the Hoovers and Main Street Crips were rival gangs. Murphy testified he was a Hoover gang member, and Smith told the Perkins agent that he was from “West Side Hoover.” The April shootings took place in Main Street Crip territory and occurred after the March 29 shooting of Smith. Murphy‘s and Smith‘s gang membership and motive for the April shootings (to retaliate against the Main Street Crips for the March 29 shooting) corroborated Dale‘s testimony. (People v. Szeto (1981) 29 Cal.3d 20, 28 [defendant‘s motive to assist his gang in gaining revenge upon two rival gangs for earlier slaying of fellow gang member corroborated accomplice‘s testimony]; People v. Samaniego, supra, 172 Cal.App.4th at p. 1178 [gang membership and motive corroborated accomplice‘s testimony]; People v. Vu (2006) 143 Cal.App.4th 1009, 1022 [accomplice testimony was corroborated by defendant‘s gang membership and motive to retaliate against rival gang for killing of fellow gang member].)
Moreover, Smith‘s statements to the Perkins agent corroborated Dale‘s testimony with respect to the April 11 shooting. Smith told the Perkins agent that the police caught Murphy‘s car on camera, the camera video only showed “the back and side,” but “that shit happened in front of the store,” and he and Murphy carried a “nine” millimeter firearm. A criminalist testified that two bullets recovered from the April 11 crime scene could have been fired from a nine-millimeter Luger. Smith‘s statements connected him to the April 11 shooting and provided sufficient independent corroborating evidence. (See People v. Garton (2018) 4 Cal.5th 485, 520 [defendant‘s statements in emails and recorded call provided independent corroboration of accomplice testimony]; People v. Whalen (2013) 56 Cal.4th 1, 56 [defendant‘s statement to detective “alone was sufficient independent corroboration tying defendant to the crimes“].)
F. Substantial Evidence Supports Murphy‘s and Smith‘s Convictions
“In considering a sufficiency of the evidence claim, we review ‘the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‘” (People v. Collins (2025) 17 Cal.5th 293, 307; accord, People v. Penunuri (2018) 5 Cal.5th 126, 142 [“‘To assess the evidence‘s sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt.‘“].)
“‘The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.’ [Citations.] ‘We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact‘s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.‘” (People v. Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Flores (2020) 9 Cal.5th 371, 411 [appellate court must “‘accept logical inferences that the jury might have drawn from the circumstantial evidence‘“].) “We do not question the credibility of a witness‘s testimony, so long as it is ‘not inherently improbable,’ nor do we reconsider the weight to be given any particular item of evidence.” (People v. Navarro (2021) 12 Cal. 5th 285, 302; accord, People v. Reed (2018) 4 Cal.5th 989, 1006.)
Murphy and Smith contend there was not substantial evidence to support their convictions for murder, attempted murder, or conspiracy to commit murder. Murphy argues the evidence did not tie him personally to the April 3 and 11 shootings. Similarly, Smith contends no surveillance video or witness placed him at the scene of the April 11 shooting, and there was no DNA evidence linking him to the Ford Fusion, the gun, or the bullets. There is substantial evidence.
With respect to the April 11, 2019 shooting, Dale testified Murphy was the driver and Smith was the shooter. Smith admitted to the Perkins agent that the incident happened in front of the liquor store and that he carried a nine-millimeter firearm, which is consistent with evidence that the two recovered bullets could have been fired from a nine-millimeter Luger. In addition, surveillance video placed Murphy‘s Ford Fusion at the scene of the shooting at 6:23 p.m. In addition, both Murphy‘s and Smith‘s cellphones were in Hoover territory prior to the shooting and six minutes after the shooting, with Murphy‘s cellphone being active near the crime scene around the time of the shooting (6:23 p.m.). Moreover, as discussed, the testimony supported a theory that Murphy and Smith, as Hoover gang members, went to rival Main Street Crips territory to retaliate for the shooting of Smith on March 29. Dale‘s testimony, the independent corroborating evidence, and the gang evidence showing motive provide substantial evidence to support Murphy‘s and Smith‘s convictions.
The judgment is affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.