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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

People v. Hill CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D083487

• Precedential Status: Non-Precedential

• Opinion

• Authorities (25)

• Cited By (0)

• Summaries (0)

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Combined Opinion

Filed 2/27/26 P. v. Hill CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083487, D083908

Plaintiff and Respondent, (Super. Ct. No. SCD289720)

v.

JOHNNY HILL et al.,

Defendants and Appellants.

CONSOLIDATED APPEALS from judgments of the Superior Court of
San Diego County, Kimberlee A. Lagotta, Judge. Affirmed in part, reversed
in part, and remanded with instructions.
Randi Covin, under appointment by the Court of Appeal, for Defendant
and Appellant Johnny Hill.
Robert E. Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant Floyd L. Garrett.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland and Arlene A. Sevidal, Assistant
Attorneys General, Eric A. Swenson and Christine Y. Friedman, Deputy
Attorneys General, for Plaintiff and Respondent.
Johnny Hill and Floyd L. Garrett (together appellants) are members of the
Neighborhood Crips (NHC), a criminal street gang in San Diego. A jury
convicted them of the second degree murder of Ernest B. It also found them
guilty of assaulting Dorian C. with a semiautomatic firearm (count 2),
possession of a firearm by a felon (count 3) and found true related firearm
enhancement allegations. The court sentenced Garrett to an indeterminate
term of 55 years to life, and a determinate term of 58 years, and Hill to an
indeterminate term of 55 years to life, and a determinate term of 26 years.
Appellants argue the trial court prejudicially erred by (1) admitting gang-
related evidence after bifurcating the gang enhancements; and (2) excluding
evidence of Ernest’s prior violence and gun possession. They also claim error in
(1) instructing jurors that gang evidence could be used to assess the credibility of
witnesses and (2) whether sufficient evidence exists proving their guilt of
assaulting Dorian with a semiautomatic firearm. Hill also argues insufficient
evidence supports his guilt for (a) second degree murder and (b) his
enhancement for discharging of a firearm causing death. Hill also argues his
two-strike sentence should be reversed. Finally, both contend the cumulative
effect of the above errors requires reversal of their judgments.
The People concede, and we agree, that Hill’s two-strike sentence must be
vacated and the matter remanded for a possible retrial of his prior conviction
allegations. We reject appellants’ remaining challenges and affirm the
judgments.1

1 This conclusion moots appellants’ remaining argument alleging
cumulative error.

2
FACTUAL BACKGROUND
A. The Shooting
On December 28, 2019, at around 7:30 p.m., a San Diego Police Officer
heard multiple gunshots near Imperial Avenue and 16th Street in an area called
The Bottoms which is known for violent crime and heavy narcotics trafficking.
This area is within West Coast Crips’ (WCC) territory, a gang aligned with
NHC. It is common for NHC gang members to be in The Bottoms selling drugs.
The police officer saw people in the middle of the street in front of the
Alpha Project dragging a person toward the sidewalk. The man was unable to
talk but his driver’s license identified him as Ernest. The officer did not see any
firearm, knife, or weapon in the area. A person at the scene gave Ernest’s cell
phone, handheld radio, and keys to law enforcement. Ernest’s cell phone
holster, which he wore on his right hip, had a bullet hole in it, but his cell phone
did not.
Ernest passed away. An autopsy revealed four gunshot wounds, one above
his right hip bone, one in the upper back part of his right arm, one through his
right thigh, and one through his right lower leg. Based on the trajectory of the
bullet that entered his hip, Ernest was likely bent over and facing away from the
shooter at an angle when he sustained that wound.
Ernest worked for the Alpha Project which provides services for homeless
people. Dorian, another Alpha Project employee, was inside a mobile trailer on
the Alpha Project property during the shooting. Dorian suffered a graze wound
on his left shin area, and had two holes in his pants, consistent with a bullet
entering his pants, grazing his leg, and exiting his pants. Although Dorian
provided a brief statement, he was not very cooperative and refused to allow an
officer to take pictures of the wound.

3
B. The Investigation
Police obtained video footage from cameras near the scene of the shooting.
Surveillance footage showed a white sedan turning onto Commercial where it
parked. One individual got out of the car and walked north across Commercial.
About 20 seconds later, another individual came from the same location and also
walked across Commercial. One of the men wore a black hooded sweatshirt with
the hood pulled up. The other man wore a dark blue shirt, dark two-toned
sneakers with a lighter marking below the laces, a tan hat with a bluish colored
Polo logo in the middle, and tan pants. From still images obtained from the
videos, police identified the man in the black hooded sweatshirt as Hill. After
reviewing social media, police identified the second man as Garrett.
Appellants walked on 17th Street, with Garrett walking a few paces ahead
of Hill. The men then walked beside each other. The men crossed Imperial,
walking on the side of the street opposite the Alpha Project. In the meantime,
surveillance footage also showed Ernest and Dorian arriving across the street
from the Alpha Project in Ernest’s white truck. Dorian entered the Alpha
Project Gate and then a trailer on the property. When Ernest started to cross
the street, appellants passed behind him. As Ernest crossed the street, Hill
fired the first shots, and Garrett immediately fired multiple rounds. Hill then
fired an additional shot as he fled. Appellants ran back to Hill’s car and drove
away together. Evidence recovered from the scene suggest it was Garrett, and
not Hill, who killed Ernest.

4
DISCUSSION
I.
Evidentiary Issues
A. Legal Principles
“Except as otherwise provided by statute, all relevant evidence is
admissible.” (Evid. Code,2 § 351.) Evidence is considered relevant when it
has some rational connection to proving or disproving a disputed fact that is
significant to the outcome of the case. (§ 210.) A trial court, however, retains
broad discretion under section 352 to exclude such evidence when its
probative value is substantially outweighed by the likelihood that its
admission will unduly consume time, unfairly prejudice a party, confuse the
issues, or mislead the jury. (§ 352.) A trial court’s ruling on the admission or
exclusion of evidence will not be overturned unless it is shown that the court
exercised its discretion in an arbitrary, capricious, or irrational manner that
resulted in a miscarriage of justice. (People v. Mataele (2022) 13 Cal.5th 372,
413–414.) This deferential standard presumes the trial court properly
followed the governing law and acted within its discretion, absent an
affirmative showing to the contrary by the appellant. (Id. at p. 414.)
California courts have consistently exercised caution when allowing
gang evidence in criminal trials, recognizing that such evidence poses a risk
the jury may draw an improper inference that the defendant is predisposed to
criminal behavior and thus guilty of the charged offense. (People v. Hinojos
(2025) 110 Cal.App.5th 524, 548 (Hinojos).) Because gang enhancement
evidence can be “unreliable and prejudicial” when presented alongside the
underlying charges, the Legislature enacted Assembly Bill No. 333 (2021–

2 Undesignated statutory references in part I of this opinion are to the
Evidence Code.

5
2022 Reg. Sess.) (Hinojos, at p. 549.) This law added Penal Code
section 1109, mandating separate trials for gang enhancements and the
underlying offenses if the defense so requests. (Hinojos, at p. 549.) Despite
Penal Code section 1109, the same gang evidence used to prove a gang
enhancement may still be admissible at a separate trial on the underlying
crime. (Hinojos, at p. 549.) Evidence of a defendant’s gang ties—such as
territory, symbols, rivalries, and activities—can be relevant to proving
identity, motive, intent, or the means of committing the offense. (Ibid.)
Relevant gang evidence must be admitted with caution because it can
unduly influence a jury. (People v. Garcia (2024) 107 Cal.App.5th 1040, 1050
(Garcia).) Section 352 allows a court to exclude such evidence if its
prejudicial impact substantially outweighs its usefulness. (Garcia, at
p. 1050.) The trial court has broad discretion in these determinations, and
appellate review is limited to cases where the discretion was clearly misused
in a way that caused a miscarriage of justice. (Garcia, at p. 1050.) The
appellant bears the burden to establish both an abuse of discretion and
actual prejudice. (Ibid.) We review admission of gang evidence for
harmlessness under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
(Garcia, at p. 1050.) Any error is harmless unless there is a reasonable
probability the jury would have reached a result more favorable to the
defendant absent the error. (Watson, at p. 836.)
B. Admission Gang Evidence
The trial court granted Hill’s motion to bifurcate trial of the gang-
enhancement allegations pursuant to Penal Code section 1109. However, it also
granted the prosecutor’s motion to introduce gang evidence during the guilt
phase, finding the evidence more probative than prejudicial and relevant to
issues of motive, identity, and intent. The court limited this evidence to: (1) the

6
existence of NHC, including their history, territory, hierarchy, signs, symbols,
rivalries, and alliances; (2) expert testimony about appellants’ gang
membership, participation, tattoos, hand signs, and associations; and (3) expert
testimony regarding the culture and habits of Black criminal street gangs and
their members.
Appellants contend the trial court abused its discretion by admitting gang
evidence to prove the underlying charges, asserting the evidence was cumulative
and more prejudicial than probative. They argue the jury already had sufficient
evidence of their association without reference to their NHC membership. We
conclude the record shows the gang evidence was directly relevant to motive and
intent and properly admitted under section 352.
The prosecution is permitted to introduce evidence of gang affiliation
when it helps establish motive or intent. (People v. Duong (2020) 10 Cal.5th 36,
64.) Motive evidence is inherently probative, often outweighing potential
prejudice, and trial courts are granted broad discretion to admit it. (Ibid.) Here,
the gang evidence provided critical context explaining why appellants would
open fire on Ernest.
Ernest was shot in what the gang expert described as a high narcotics
trafficking area frequented by individuals buying or selling drugs. Although
this was WCC territory, NHC was aligned with WCC, and WCC permitted NHC
members to sell drugs there. It was common for NHC members, including older
members, to sell narcotics in that area.
The expert further testified that each gang controls who is allowed to sell
drugs in their territory. Only members or approved associates may operate
there, while rivals or outsiders are excluded and risk violent retaliation if they
attempt to sell without permission. Against that backdrop, Hill testified that
just before the shooting, Ernest said, “ ‘Ain’t gonna be getting no money right

7
here. Ain’t nobody going to be [selling] around here.’ ” To appellants—both
NHC members—this statement would have been a direct challenge to their
authority and a sign of disrespect, providing a strong gang-related motive to
retaliate.3
Hill also testified that as Ernest spoke, Ernest raised his arm. Believing
Ernest had a gun in his hand, Hill fired in self-defense, thinking he was about to
be shot. The record, however, indicates that if Ernest did raise his arm, he was
holding a cell phone—not a firearm. The gang evidence was relevant to counter
appellants’ claim they acted in self-defense.
Thus, the gang evidence was not merely cumulative or tangential; it put
the circumstances leading to the shooting in context and provided a coherent
motive for the crime. Without that context, the jury would have been left with
an incomplete picture of why the confrontation escalated into lethal violence.
The trial court therefore acted within its discretion in finding the evidence more
probative than prejudicial under section 352.
Even if some of the gang evidence could be viewed as marginally
cumulative, any assumed error was harmless. “The admission of gang evidence
over [a] . . . section 352 objection will not be disturbed on appeal unless the trial
court’s decision exceeds the bounds of reason.” (People v. Olguin (1994)
31 Cal.App.4th 1355, 1369.) Reversal is warranted only if there is a reasonable
probability of a more favorable outcome absent the alleged error. (Watson,
supra, 46 Cal.2d at p. 836.)

3 Although the jury rejected both first degree murder and the special
circumstance that appellants intentionally killed Ernest by means of lying in
wait, the gang evidence remained relevant to the issue of intent. Even if the
nongang evidence—such as appellants’ firing multiple shots at Ernest—
independently supported an inference of intent to kill, the gang evidence was
probative in strengthening this inference.

8
The evidence “about gang culture . . . the significance of disrespect . . . was
highly relevant to [appellants’] possible motive for the charged crimes.” (People
v. Flores (2020) 9 Cal.5th 371, 402.) Although the evidence detailed gang
culture, including the commission of murder, to garner and maintain respect, it
did not characterize NHC as a violent gang, nor did it include any specific
information about other crimes committed by NHC gang members. None of the
evidence was likely to arouse the jurors’ emotions or distract them from their
duty to determine whether the prosecution proved appellants’ guilt on the
charged offenses. (People v. Scott (2011) 52 Cal.4th 452, 491 [evidence unduly
prejudicial if likely to inflame the jury’s emotions and evoke a verdict based on
passion rather than reason].) Moreover, appellants identify nothing in the gang
expert’s testimony that is remotely as inflammatory as the evidence of the
charged conduct—namely, repeatedly shooting at Ernest—and thus nothing
likely to provoke jury bias against them.
Given the probative value of the gang evidence admitted at trial, we
cannot conclude the trial court abused its discretion in determining that its
probative value was not substantially outweighed by any prejudicial effect.
C. Exclusion of Evidence Regarding Ernest
1. Additional Background
Hill moved to admit evidence of Ernest’s prior violence under
section 1103, and the prosecutor moved to exclude it. At a pretrial hearing,
Benito D. testified that he knew Ernest as a third-party delivery driver when
he worked as a dispatcher. One day in 2019, Benito heard their boss,
Abdi F., on the phone yelling at Ernest to return the company van. Abdi then
asked Benito to accompany him to collect the van because Ernest had not
been delivering packages on time. Ernest walked over to the passenger side
of Benito’s car, opened the door, and started punching Abdi in the face as

9
Abdi fought back. Ernest yelled, “Don’t ever talk to me like that.” Benito did
not know anything about the relationship between Abdi and Ernest and did
not know if there had been previous incidents of Abdi threatening Ernest.
Abdi did not return to work for more than a year.
The trial court excluded the evidence under section 352. The court
found Benito provided insufficient evidence showing Ernest was the initial
aggressor, commented that Benito did not know what occurred between these
individuals before this incident, including what Ernest might have been
saying while Abdi was yelling at him over the phone. Additionally, because
Abdi was not the one testifying, it could not determine if section 1103
applied.
2. Analysis
Appellants contend the trial court prejudicially erred by excluding
evidence of Ernest’s prior act of violence and his possession of three firearms
at his home. They argue the exclusion violated their constitutional rights to
confront witnesses, present a defense, and receive due process of law. The
People maintain the trial court properly excluded the evidence under
section 352. We agree with the People.
Section 1101, subdivision (a), prohibits the admission of evidence of a
person’s character to prove his conduct on a specified occasion. Section 1103,
subdivision (a), provides an exception to that rule, stating, “In a criminal
action, evidence of the character . . . of the victim of the crime for which the
defendant is being prosecuted is not made inadmissible by section 1101 if the
evidence is: ¶ Offered by the defendant to prove conduct of the victim in
conformity with the character or trait of character.” For the purposes of
proving self-defense, whether the defendant was aware of the victim’s
propensity for violence is immaterial because such evidence “ ‘nevertheless

10
tends to show that the victim was probably the aggressor.’ ” (People v. DelRio
(2020) 54 Cal.App.5th 47, 55 (DelRio).) The admission of a victim’s character
evidence pursuant to section 1103 “is subject to the dictates of . . .
section 352.” (People v. Wright (1985) 39 Cal.3d 576, 587.)
As appellants correctly observe, evidence tending to show Ernest was
the aggressor may be relevant to whether defendants acted in reasonable or
unreasonable self-defense. They assert the court improperly excluded such
evidence based on a credibility assessment of Benito, contending credibility
concerns go to the weight, not the admissibility, of evidence.
Appellants’ argument is unpersuasive. When the court’s remarks are
viewed in context, it is apparent the exclusion was not based on a disbelief of
Benito’s testimony but on the insufficiency of this testimony to establish that
Ernest was the initial aggressor. Benito heard only Abdi’s side of the
telephone exchange and could not recall whether Abdi made any statements
indicating an intent to behave aggressively when retrieving the van. He
further lacked knowledge about the nature of Abdi’s past relationship with
Ernest or whether Abdi had ever made any threats against Ernest. Given
these limitations, the trial court reasonably concluded Benito’s testimony
lacked the requisite foundation and probative value to aid the jury in
determining who initiated the confrontation. The exclusion of this evidence
therefore constituted a proper exercise of discretion under section 352.
Moreover, the trial court appropriately considered that admission of
Ernest’s prior violent conduct would have permitted the prosecution to
introduce evidence of appellants’ own violent character under section 1103,
subdivision (b). Such rebuttal evidence included Hill’s prior conviction for
assault with a firearm and Garrett’s prior convictions for attempted murder,
battery, and use of a firearm during a bank robbery. (People v. Fuiava (2012)

11
53 Cal.4th 622, 696.) The court could have reasonably determined that
whatever minimal probative value the proffered evidence might have had
was substantially outweighed by the danger of undue prejudice, confusion of
the issues, and consumption of time.
We also discern no error in excluding evidence that Ernest possessed
firearms at his home. Hill testified that he did not know Ernest and there is
no evidence in the record suggesting Garrett knew him either. Accordingly,
appellants could not have known Ernest owned firearms. As such, Ernest’s
firearm possession could not be relevant to appellants’ own state of mind.
(People v. Tafoya (2007) 42 Cal.4th 147, 165.) Moreover, we fail to see how
Ernest’s possession of firearms at his home tended to prove his character for
violence. Although Hill claims he opened fire in self-defense believing Ernest
had pointed a gun at him, no weapons were found at the scene. Rather, even
assuming Hill’s claim that Ernest turned and raised his arm with something
in his hand, the record suggests the object in Ernest’s hand was a cell phone.
The court properly instructed the jury on imperfect self-defense and defense
of another—claims the jury necessarily rejected. (CALCRIM No. 571.)
Finally, contrary to appellants’ claim, the trial court’s ruling did not
violate their federal constitutional right to present a defense. “[T]he
application of the ordinary rules of evidence under state law does not violate
a criminal defendant’s federal constitutional right to present a defense,
because trial courts retain the intrinsic power under state law to exercise
discretion to control the admission of evidence at trial.” (People v. Abilez
(2007) 41 Cal.4th 472, 503.) “Although completely excluding evidence of an
accused’s defense theoretically could rise to this level, excluding defense
evidence on a minor or subsidiary point does not impair an accused’s due

12
process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 1075,
1103.)
On this record, the trial court’s exclusion of Ernest’s prior violent
conduct and firearm possession was neither arbitrary nor an abuse of
discretion. The court properly weighed the minimal probative value of the
evidence against its potential to mislead the jury and open the door to highly
prejudicial rebuttal evidence. Because the ruling was consistent with the
principles of section 352, appellants have not shown error—constitutional or
otherwise.
II.
Instructional Issue
Appellants’ claim the trial court prejudicially erred in instructing with
an optional paragraph within CALCRIM No. 1403 informing jurors that
gang evidence could be used to assess the credibility of witnesses.4
Appellants’, however, did not object to this optional paragraph and forfeited

4 In full, CALCRIM No. 1403 provided: “You may consider evidence of
gang activity only for the limited purpose of deciding whether: [¶] The
defendant acted with the intent, purpose, and knowledge that are required to
prove the charged crimes, lesser crime, and special circumstance allegation;
[¶] OR [¶] The defendant had a motive to commit the crimes charged; [¶]
OR [¶] The defendant actually believed in the need to defend himself or
someone else and acted under fear of imminent death or great bodily injury to
himself or someone else; [¶] OR [¶] The defendant acted in the heat of
passion; [¶] OR [¶] A defendant aided and abetted another defendant in
the commission of the charged crime, lesser crime and special circumstance
allegation; [¶] OR [¶] A defendant intended to participate in an uncharged
conspiracy in this case. You may also consider this evidence when you
evaluate the credibility or believability of a witness and when you consider
the facts and information relied on by an expert witness in reaching his or
her opinion. [¶] You may not consider this evidence for any other purpose.
You may not conclude from this evidence that the defendant is a person of
bad character or that he has a disposition to commit crime.”

13
the issue. Appellants claim ineffective assistance of counsel for any forfeited
claims.
To establish ineffective assistance, a defendant must show both that
counsel’s performance fell below an objective standard of reasonableness and
that, but for counsel’s errors, there is a reasonable probability of a more
favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687.) A
reviewing court may resolve the claim on the ground of lack of prejudice
alone. (Id. at p. 697.) And on direct appeal, a conviction will be reversed only
if the record affirmatively establishes counsel had no rational tactical
purpose, was asked for a reason and provided none, or could have had no
satisfactory explanation. (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Here, the record is silent as to why Hill’s defense counsel and Garrett,
who represented himself at trial, did not request this portion of the
instruction be removed. Thus, appellants must establish that there could be
no satisfactory explanation for this failure. They cannot make this showing.
This case did not involve contradictory testimony regarding the
shooting. (Compare, Garcia, supra, 107 Cal.App.5th at p. 1056 [gang-related
evidence “had little, if any, relevance to the substantive crimes” and witness
credibility was central to the case].) Hill’s defense counsel and Garrett may
have tactically concluded removing this paragraph was not necessary given
the trial court’s instruction to jurors that some of the instructions might not
apply depending on the facts. (CALCRIM No. 200; People v. Riel (2000)
22 Cal.4th 1153, 1202 [trial counsel has no “duty to object simply to generate
appellate issues” and “[s]ometimes, the best action an attorney can take
regarding an available objection is not to make it”].) Since there is rational
tactical purpose for failing to object to this portion of the instruction,

14
appellants’ claims are “more appropriately resolved in a habeas corpus
proceeding.” (Mai, supra, 57 Cal.4th at p. 1009.)
III.
Sufficiency of the Evidence Issues
To determine the sufficiency of the evidence, “we review the entire record
in the light most favorable to the prosecution to determine whether it
contains evidence that is reasonable, credible and of solid value, from which a
rational trier of fact could find that the elements of the crime were established
beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
We must “view the evidence in the light most favorable to respondent and
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” (People v. Lewis (1990) 50 Cal.3d 262,
277.) Reversal based on insufficient evidence is warranted only if “it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “ ‘[I]t is
the jury, not the appellate court which must be convinced of the defendant’s
guilt . . . .’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055–1056.) The
testimony of a single witness, if believed by the trier of fact, is sufficient to
support a conviction, unless that testimony is physically impossible or
inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Appellants challenge the sufficiency of the evidence proving their guilt of
assaulting Dorian with a semiautomatic firearm. Hill also claims insufficient
evidence exists proving his guilt for second degree murder and his 25 years to
life enhancement for discharge of a firearm causing death. As we will explain,
we reject his arguments.

15
A. Assaulting Dorian with a Semiautomatic Firearm
Surveillance footage showed Ernest and Dorian arriving across the street
from the Alpha Project in Ernest’s white truck. Dorian enters the Alpha Project
Gate and then a trailer on the property. Seconds later, Ernest is shot. When
police later questioned Dorian, they observed a wound on his left shin that
appeared consistent with a bullet graze. His pants had two holes, suggesting a
bullet had entered, grazed his leg, and exited. Investigators also noted marks on
the fence outside and the wall inside the trailer that appeared to have been
caused by bullets.
Appellants argue their convictions for assaulting Dorian with a
semiautomatic firearm (Pen. Code,5 § 245, subd. (b)) must be reversed. They
claim the evidence fails to establish (1) Dorian’s leg wound was caused by a
bullet or sustained during the shooting, and (2) they knew anyone other than
Ernest was likely to be injured or that Dorian was inside the trailer. We
disagree.
To prove a violation of section 245, subdivision (b), the prosecution was
required to show: (1) the defendant committed an act with a semiautomatic
firearm that, by its nature, would directly and probably result in the use of force
against another person; (2) the act was done willfully; (3) the defendant was
aware of facts that would cause a reasonable person to realize the act would
likely result in the application of force; and (4) the defendant had the present
ability to apply such force with the firearm. (CALCRIM No. 875.)
Assault with a semiautomatic firearm is a general intent crime. It does
not require proof of a specific intent to injure but only an intentional act and
knowledge of facts showing the act would probably and directly result in the

5 Undesignated statutory references in parts III and IV of this opinion
are to the Penal Code.

16
application of physical force. (People v. Williams (2001) 26 Cal.4th 779, 782,
790.) The crime may be committed without directly aiming at the victim.
(People v. Raviart (2001) 93 Cal.App.4th 258, 263.) And a shooter may be liable
for assaulting multiple victims with a single shot, including victims not visible
to the shooter. (People v. Trujillo (2010) 181 Cal.App.4th 1344, 1353–1357.)
Viewed in the light most favorable to the judgment, substantial evidence
supports the jury’s conclusion that appellants assaulted Dorian with a
semiautomatic firearm. The jury was entitled to conclude that Dorian’s leg
injury was caused by a bullet fired during the shooting. The physical evidence
overwhelmingly supports this inference with investigators documenting bullet
impact marks inside the trailer. They also observed two holes in Dorian’s pants
consistent with a bullet entering, grazing his left shin, and exiting—
corroborating the graze wound officers observed on Dorian’s leg.
The jury also had ample basis to find that appellants acted with the
requisite general intent. Firing numerous rounds in a populated or semi-
populated area is conduct that “under appropriate circumstances” supports an
assault conviction. (People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 207–208,
211.) Here, appellants fired between nine and 11 shots as Ernest walked toward
the canopy and Alpha Project trailer. Surveillance video showed appellants in
the background as Dorian walked toward the canopy, behind it and then inside
the trailer. As Dorian gets to the trailer, a pedestrian walks by. Also, three cars
drive by. Ernest is crossing the street as the third car drives by. The shots then
ring out. From this sequence, the jury could reasonably infer that appellants
saw Dorian cross the street and disappear from view as he walked behind the
canopy and into the trailer. Even assuming appellants did not know Doiran had
entered the trailer, the evidence supports that he remained within their direct
line of fire when they opened fire.

17
The evidence was more than sufficient to support the jury’s verdict. In
addition to the pedestrian walking by and Dorian walking behind the canopy
and into the trailer, the video shows cars in the area, a person behind the
canopy, and two additional people under the canopy who run as the shots are
fired. The record shows that Dorian’s injury was consistent with being grazed
by a bullet fired by appellants and that appellants acted willfully, with full
awareness that their conduct would probably result in injury to another. Their
contrary claim ignores the overwhelming evidence that they fired multiple
rounds toward an occupied area where Dorian and, as the video reveals, others
were present. By firing into an area where multiple individuals were present,
appellants engaged in conduct that, by its very nature, would directly and
probably result in the application of physical force to a person. The jury was
entitled to conclude that appellants committed assault with a semiautomatic
firearm within the meaning of section 245, subdivision (b).
B. Hill’s Second Degree Murder Conviction
1. General Legal Principles
The prosecution may rely on circumstantial evidence to show aiding and
abetting. (People v. Glukhoy (2022) 77 Cal.App.5th 576, 599.) A defendant’s
presence during the crime, failure to stop it, relationship with the principal, and
behavior before and after the incident—such as running away—are all relevant
in assessing whether the defendant assisted in the offense. (Ibid.) First degree
willful, deliberate, and premeditated murder requires proof the defendant had
the specific intent to kill. (People v. Whisenhunt (2008) 44 Cal.4th 174, 201
(Whisenhunt).) When a person commits a murder without premeditation and
deliberation, it is of the second degree. (§ 189.) In a second degree murder, the
“malice may be express or implied.” (§ 188.) “The primary difference between

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express malice and implied malice is that the former requires an intent to kill
but the latter does not.” (People v. Soto (2018) 4 Cal.5th 968, 976 (Soto).)
Even after the elimination of natural-and-probable-consequences liability
for second degree murder, an aider and abettor may still be convicted of implied
malice murder without expressly intending to facilitate a killing. (People v.
Reyes (2023) 14 Cal.5th 981, 990 (Reyes).) Liability exists where the individual
knows his conduct endangers the life of another and nevertheless acts with
conscious disregard for that risk. (Ibid.) For implied malice murder, the killing
must be proximately caused by an intentional act whose natural consequences
are dangerous to human life, committed by someone aware of the danger and
who consciously disregards it. (Id. at p. 988.) Proximate causation requires the
act to have been a substantial factor contributing to the death. (Ibid.)
2. Analysis
Hill challenges the sufficiency of the evidence supporting his second
degree murder conviction. Because the jury acquitted him of first degree
murder, he contends the doctrine of collateral estoppel precludes reliance on any
plan or agreement to kill Ernest, or to take him by surprise when reviewing the
sufficiency of the evidence supporting second degree murder. We reject Hill’s
collateral estoppel argument and conclude substantial evidence establishes Hill
aided and abetted implied malice murder and was a substantial concurrent
cause of Ernest’s death.
First, we reject Hill’s argument that the jury’s acquittal of him and
Garrett of first degree murder precludes reliance on any perceived plan or
agreement to kill Ernest. The premise of Hill’s argument is flawed. An
acquittal of first degree murder reflects only that the jury did not find beyond a
reasonable doubt that he acted with the specific intent to kill required for a
willful, deliberate, and premeditated murder. It does not negate the possibility

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that he committed a lesser form of homicide requiring a different, less culpable
mental state. This distinction is critical.
California law makes clear that verdicts on different counts need not be
consistent. “An acquittal of one or more counts shall not be deemed an acquittal
of any other count.” (§ 954.) Juries may “ ‘acquit whatever the evidence,’ ” and
courts do not require consistency among verdicts. (People v. Ramirez (2022)
13 Cal.5th 997, 1121–1122 (Ramirez).) As a result, the jury’s rejection of
premeditated murder cannot be treated as a factual finding that Hill lacked the
mental state required for implied malice second degree murder.
This follows directly from the governing legal standards. First degree
murder demands proof of a specific intent to kill formed after premeditation and
deliberation. (Whisenhunt, supra, 44 Cal.4th at p. 201.) Implied malice murder,
by contrast, does not require an intent to kill. (Soto, supra, 4 Cal.5th at p. 976.)
A defendant—including an aider and abettor—may be liable for implied malice
murder when the defendant intentionally engages in conduct dangerous to
human life, knows of the danger, and acts with conscious disregard for that life-
threatening risk. (Reyes, supra, 14 Cal.5th at pp. 988–990.) Thus, the mental
state for implied malice is fundamentally different from, and less exacting than,
the mental state required for premeditated murder.
The jury’s acquittal of first degree murder therefore establishes only that
the prosecution did not prove intent to kill beyond a reasonable doubt. It does
not—and legally cannot—bar a finding that Hill acted with conscious disregard
for life or that his intentional conduct was a substantial factor in causing
Ernest’s death. Because implied malice does not require a plan, an agreement,
or a preexisting intent to kill, the jury’s rejection of first degree murder has no
preclusive effect on its ability to convict Hill for second degree murder based on
implied malice.

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Finally, when reviewing the sufficiency of the evidence supporting the
second degree murder conviction, our task is confined to assessing whether
substantial evidence supports that verdict. We evaluate the nature and quality
of the evidence supporting that count, not the overall coherence of the jury’s
decisionmaking. (See People v. Lewis (2001) 25 Cal.4th 610, 656.) We are not
bound by factual conclusions the jury may have implied in returning an
inconsistent or lenient verdict on another count. (Ramirez, supra, 13 Cal.5th at
pp. 1121–1122.) For these reasons, the jury’s acquittal on first degree murder
neither constrains our review nor undermines the validity of its conviction for
second degree implied malice murder.
In response to a jury note regarding how aiding and abetting works if
the jury finds that first degree murder does not apply, the court instructed,
without objection, on aiding and abetting second degree implied malice
murder.6 Accordingly, to prove implied malice murder, the relevant inquiry
here is whether Hill knew Garrett intended to commit the act (shooting at
Ernest), intended to aid Garrett in the shooting, knew the shooting was
dangerous to life, and acted in conscious disregard for life. (Reyes, supra,
14 Cal.5th at p. 992.)

6 The instruction explained that the People had to prove the following
elements to establish second degree implied malice murder under an aiding
and abetting theory: “1. The perpetrator committed a life endangering act
with conscious disregard for human life that resulted in the death of [the
victim]; [¶] 2. The defendant knew that the perpetrator intended to commit
the life endangering act; [¶] 3. Before or during the commission of the act,
the defendant intended to aid and abet the perpetrator in committing the life
endangering act; [¶] 4. The defendant’s words or conduct did in fact aid and
abet the perpetrator’s commission of the life endangering act; [¶] 5. The
defendant knew the life endangering act was dangerous to human life; [¶]
AND [¶] 6. The defendant acted with conscious disregard for human life
when he aided and abetted the perpetrator.”

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The evidence shows that as Ernest crossed the street, Hill fired the
first shots, and Garrett immediately fired multiple rounds. Hill then fired an
additional shot as he fled. Appellants ran back to Hill’s car and drove away
together. A gang expert, responding to a hypothetical mirroring these facts,
opined that the shooters were members of the same gang and that their
coordinated conduct indicated a plan or mutual understanding.
This evidence amply supports the conclusion that Hill aided and
abetted implied malice murder. Hill initiated the gunfire, Garrett unleashed
a rapid barrage of shots, and Hill capped the attack with a final shot—
conduct demonstrating their shared awareness that firing multiple rounds
toward Ernest was inherently dangerous to human life. Their coordinated
movements before the shooting, the immediate succession of gunfire, and
their joint flight strongly support a finding that Hill not only knew Garrett
intended to commit a life endangering act, but that he intended to and did
facilitate it. Hill’s decision to fire a “parting shot” after Garrett’s barrage
reinforces that he acted with conscious disregard for human life and that his
conduct was a substantial concurrent cause of Ernest’s death.
In sum, the record demonstrated a coordinated, dangerous course of
conduct in which Hill knowingly participated and which directly resulted in
Ernest’s death. The jury’s verdict reflects a reasonable and supported
conclusion that Hill acted with conscious disregard for human life and aided
Garrett in committing a life endangering act. Accordingly, substantial
evidence supports Hill’s second degree murder conviction, and reversal is
unwarranted.
C. Hill’s 25 Years to Life Enhancement
The jury found true the allegation that Hill intentionally and
personally discharged a firearm and proximately caused Ernest’s death. The

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trial court imposed a 25 years to life sentencing enhancement for this true
finding. (§ 12022.53, subd. (d).) To prove this allegation, the People were
required to show Hill (1) personally and intentionally discharged a firearm
and (2) proximately caused great bodily injury or death. (Ibid.) Hill does not
dispute that he personally and intentionally fired a gun. Instead, he
contends that no rational juror could have found beyond a reasonable doubt
that his conduct proximately caused Ernest’s death because, in his view, it
was not reasonably foreseeable that Garrett would shoot or kill Ernest. We
disagree.
When the actions of multiple people work together as proximate causes of
a death, each person’s conduct is considered a proximate cause so long as it was
a substantial factor in bringing about the death. (People v. Sanchez (2001)
26 Cal.4th 834, 847.) Causes are considered concurrent when they were both
operating at the time of death and combined to produce the fatal result. (Ibid.)
Substantial evidence supports the jury’s finding. The evidence established
that appellants fired multiple rounds at Ernest within seconds of each other,
and either shooter could have inflicted the injuries that resulted in Ernest’s
death. The jury was properly instructed that more than one cause of death may
exist, and that an act constitutes a cause only if it is a substantial factor—
meaning more than a trivial or remote contribution—and need not be the sole
cause. (CALCRIM No. 3149.) Viewing the record in the light most favorable to
the verdict, the evidence and all reasonable inferences amply support the
conclusion that Hill’s gunfire was a substantial, concurrent, and therefore
proximate cause of Ernest’s death.

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IV.
Hill’s Prior Convictions
After the jury returned its verdicts, the trial court held a bench trial on
Hill’s charged prior convictions and aggravating factors. The court accepted
Hill’s admission to a single prior serious felony conviction and a prior strike
conviction. (§ 667, subds. (a)(1), (b)–(i).) These admissions were based on Hill’s
2010 conviction for assault with a deadly weapon with a gang enhancement.7
(§§ 245, subd. (a)(1); 186.22, subd. (b)(1)). The court sentenced Hill as a second
striker based on his admission that his 2010 conviction of aggravated assault
with a gang enhancement constituted a strike.
Hill contends his 2010 conviction qualifies as a prior serious felony
conviction only if it was committed for the benefit of a criminal street gang. He
argues the prior strike finding must be vacated and the matter remanded for
retrial under the current version of section 186.22. The People agree that the
trial court’s true findings on both the prior strike and the prior serious felony
enhancement should be vacated.
Assembly Bill No. 333 (2021–2022 Reg. Sess.) increased the evidentiary
requirements for proving gang offenses and enhancements by amending
section 186.22. (Stats. 2021, ch. 699, § 4.) Hill’s prior convictions were based on
his admission to the elements of section 186.22 as it read at the time of his plea.
At that time, the prosecution was not required to prove—and Hill did not
admit—the elements newly required under Assembly Bill No. 333. In People v.
Fletcher (2025) 18 Cal.5th 576 (Fletcher), the California Supreme Court held

7 In 2010, Hill pled guilty to violating section 245, subdivision (a)(1), as
well as the gang enhancement. The factual basis for Hill’s plea was: “I
committed an assault by means likely to produce great bodily injury. This
was committed in association with a criminal street gang with specific intent
to assist in criminal conduct by gang members.”

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that these heightened requirements apply when assessing whether pre–
Assembly Bill No. 333 convictions may be used for certain sentencing purposes.
(Fletcher, at p. 583.)
Because Hill’s prior convictions predated Assembly Bill No. 333, the record
does not establish they satisfy the amended statute’s more stringent
requirements, and because this case is not yet final, the parties agree that the
trial court’s true findings on the prior strike and serious felony enhancement
must be vacated and the matter remanded for resentencing. If the prosecution
elects to retry those allegations, the trial court must adjudicate them “applying
the elements of section 186.22 as amended by Assembly Bill [No.] 333.”
(Fletcher, supra, 18 Cal.5th at p. 608.)

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DISPOSITION
Garrett’s judgment is affirmed. The true findings on Hill’s prior serious
felony conviction and prior strike allegations are vacated, and Hill’s case is
remanded for possible retrial of the allegations. In all other respects, Hill’s
judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BUCHANAN, J.

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