People v. Guerrero CA2/5

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Filed 11/26/25 P. v. Guerrero CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION FIVE

THE PEOPLE,
                                                             B337444
         Plaintiff and Respondent,
                                                             (Los Angeles County
         v.                                                  Super. Ct. Nos.
                                                             VA154075 - 01/02)
JOSEPH JOHN GUERRERO
AND JONATHAN LUNA
NAVARRO,

     Defendants and
Appellants.



     APPEAL from judgments of the Superior Court of Los
Angeles County, Joseph R. Porras, Judge. Affirmed.

     Sunnie L. Daniels, under appointment by the Court of
Appeal, for Defendant and Appellant Joseph John Guerrero.
     Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant Jonathan Luna Navarro.

      Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Blythe J. Leszkay, Deputy Attorney
General, for Plaintiff and Respondent.

                              ******
      Defendants Joseph John Guerrero (Guerrero) and
Jonathan Luna Navarro (Navarro) (collectively, defendants)
appeal from judgments entered after their convictions for first
degree murder arising out of a gang-related shooting in which
Guerrero was the driver and Navarro, the shooter. On appeal,
defendants argue that the trial court erred in admitting their
jailhouse statements to undercover agents, in excluding evidence
as to why Guerrero was harassed in custody, in admitting expert
testimony about gangs, and in imposing a 50 year to life sentence
on Navarro. We conclude there was no error and affirm.
         FACTS AND PROCEDURAL BACKGROUND
I.    Facts
      In August 2020, Guerrero and Navarro were members of
the Whittier 13 street gang. On August 17, 2020, they drove into
the territory of a rival gang, Southside Whittier. Guerrero drove
his black BMW; Navarro was the passenger, and brought along
his .40 caliber handgun. Although they initially were looking for
members of the Pico Nuevo street gang, they drove past a man
standing in front of a liquor store who flashed them a Southside




                                2
Whittier gang sign. Guerrero circled the block three times before
stopping his car behind a taco truck, at which point Navarro
opened the passenger door, put both of his feet on the ground,
asked the man “Where are you from,” and when he said
“Southside,” opened fire on him. Guerrero then sped off with
Navarro. They wore medical-style masks and latex gloves,
burned their clothes after the shooting, and Navarro sold the gun
to an out-of-state buyer.
      The evidence establishing Guerrero’s and Navarro’s guilt
came chiefly from:
      --     Video. Surveillance video captured the BMW pulling
up as well as the shooter stepping out of the car and opening fire.
      --     Locational information from Guerrero’s cell phone.
Locational data from Guerrero’s cell phone company confirmed
that the phone circled the block near the liquor store three times
immediately before the shooting.
      --     Victim’s identification of Guerrero’s car. Before the
victim died, he identified the shooter as driving in a “Black
BMW,” which was the same car Guerrero drove.
      --     Guerrero’s statements to undercover agents during a
jailhouse conversation. Immediately after his arrest, Guerrero
was placed in a jail cell with two undercover agents who
appeared to be gang members. Guerrero informed them that he
was “Suspect” from “Whittier 13”; that he and Navarro had been
on a “mission” “cruising” and “hunting” for “some fools from Pico
Nuevo”; that they “passed by” a “southside Whittier” gang
member in front of a “liquor store”; that the “fool” “thr[e]w up” a
Southside gang sign; that Guerrero asked Navarro if he was
“ready”; that Guerrero stopped his car so Navarro could “put his
foot out” on the ground (because gang rules did not permit a




                                 3
drive-by shooting); and that Navarro “just let [the Southside
member] have it” by shooting him six times—“Boom”; and that
they “put [the victim] in a body bag.” When a police investigator
thereafter entered the jail cell and handed Guerrero a fake flyer
of a composite drawing of Guerrero, Navarro, and the victim, to
stimulate more conversation, Guerrero thereafter identified
himself and Navarro as the suspects, and the victim as “the fool
[they] smoked.”
       --    Navarro’s statements to undercover agents during a
jailhouse conversation. Immediately after Navarro’s arrest but
after Guerrero had made his jailhouse statements, Navarro was
placed in a jail cell with the same two undercover agents.
Navarro initially indicated that he didn’t “really like to speak” as
to why he was in custody because he did not “know” the other
men, but Navarro began to speak more openly once he realized
that Guerrero had shared the details of their crime. Navarro
then informed the agents that he and Guerrero were “over there
handling . . . some business” looking for Pico Nuevo gang
members; that they instead found a guy near a liquor store; that
the guy was “slipping” (that is, being careless and unprepared for
an attack); that they “double[d] back” on him; that Navarro
“bang[ed] on him,” and when he replied “Southside Whittier,”
Navarro said “we’re from Whittier 13”; and that Navarro then
“[l]et him have it” and emptied “[t]he whole clip,” “boom, boom,
boom.”
II.    Procedural Background
       A.    Charges
       The People charged both defendants with first degree




                                 4
murder (Pen. Code, § 187, subd. (a)).1 The People also alleged
that a principal was armed with a firearm (§ 12022, subd. (a)(1)),
and that Navarro personally used and intentionally discharged a
firearm causing death (§ 12022.53, subd. (d)).2
      B.    Trial
      Guerrero and Navarro were tried together.
      Guerrero testified in his own defense. He admitted that he
had driven his black BMW into Southside Whittier gang territory
along with Navarro looking for members of the Pico Nuevo
gang—with whom they had “beef”—not to hurt them, but to “talk
to them,” and further admitted that Navarro had shot the victim.
However, Guerrero denied that he knew Navarro had a gun or
that Navarro would shoot anyone; instead, Guerrero said that he
had “go[ne] in circles” in order to “scare” the victim “but not [to]
harm[] him or anything.” Guerrero initially said that he only
slowed down when Navarro opened fire, but on cross-examination
admitted that he “stopped [the car] in the perfect place for
[Navarro] to shoot” “and kill” the victim.
      The jury convicted both defendants of first degree murder
and found the firearm enhancements true.
      C.    Sentencing
      The trial court sentenced Guerrero to prison for 26 years to


1     All further statutory references are to the Penal Code
unless otherwise indicated.

2     The People also originally charged defendants with
conspiracy to commit murder (§ 182, subd. (a)(1)), but later
dismissed that count. The People also charged but declined to
proceed on other firearm allegations (§§ 12022.5, subd. (a),
12022.53, subds. (b) & (c)) against Navarro.




                                 5
life, comprised of a base sentence of 25 years to life for first
degree murder plus an additional one year for the principal use
enhancement.
        The trial court sentenced Navarro to prison for 50 years to
life, comprised of a base sentence of 25 years to life for the first
degree murder count plus a consecutive 25 years to life for the
firearm enhancement.
        D.    Appeal
        Each defendant filed a timely notice of appeal.
                            DISCUSSION
I.      Defendants’ Statements to Undercover Agents
        Guerrero and Navarro raise several challenges to the trial
court’s rulings admitting the incriminating statements they made
to the undercover agents.
        A.    Voluntariness of statements
              1.    Pertinent facts
        In the early portion of Guerrero’s conversation with the
undercover agents before Guerrero recounted the crime, the
agents called Guerrero “little homie,” gave him advice about how
to get by in custody, urged him to “keep it straight” and not “lie,”
and assured him that they had his “back.”
        In the early portion of Navarro’s conversation with the
undercover agents before Navarro recounted the crime, Navarro
introduced himself as “Boxer” from Whittier 13. Once Navarro
indicated that he was a “Southsider” (that is, a Southern
California gang member), the undercover agents told him that
they “need to know” what he did because the “older cats” in
custody would ask “what[] [Navarro’s] deal” was, told Navarro
that they had spoken to Guerrero and needed to verify whether
Guerrero had been “bullshitting” them about the crime they




                                 6
committed together, and offered to “school” Navarro on how to get
by in custody. Navarro pushed back, demanding that the agents
lift their shirts so he could see their gang tattoos for himself and
telling the agents that he “don’t really like to speak on it because
[he didn’t] know” them. When the agents started to share
Guerrero’s account of how he and Navarro had gone into
Southside Whittier gang territory looking for “fools from Pico
Nuevo” and that the cops had seized Guerrero’s BMW, Navarro
asked the agents, “He told you guys that?”, and then opened up to
them and recounted what had happened.
       Prior to trial, Navarro moved to exclude the statements he
made to the undercover agents, including on the ground that they
were involuntary due to the age difference between Navarro
(then, age 18) and the agents (then, both 48) as well as what
Navarro characterized as implied threats of harm if Navarro did
not tell the agents about the crime. Guerrero joined in this
objection at a pre-trial hearing. The trial court “recognized the
age difference and [defendants’] youth,” but found that the
interaction between the agents and Navarro “seemed pretty
cordial,” that the agents were neither “threatening” nor
“overbearing,” and that Navarro did not appear to be afraid or to
make his statements solely to get protection from the agents
while in custody. The court ruled that Navarro’s statements
were not involuntary and that Guerrero’s were “even less” so.
       During his testimony at trial, Guerrero testified that he felt
“scared” and “intimidated” by the undercover agents.
              2.     Analysis
       The due process clauses of the federal and California
Constitutions bar the admission of involuntary statements.
(People v. Winbush (2017)
2 Cal.5th 402, 452
(Winbush); People v.




                                 7
Linton (2013)
56 Cal.4th 1146, 1176
(Linton).) A statement is
“involuntary” if the defendant’s will is overborne by coercive
police conduct. (Winbush, at p. 452; People v. Carrington (2009)
47 Cal.4th 145, 169
.) In assessing whether a statement is
involuntary, courts look to the totality of the circumstances,
including factors relevant to the interrogation itself (that is, the
interrogation tactics used, the length of the interrogation, its
location, its continuity) as well as factors relevant to the
defendant (that is, his maturity, education, physical condition,
and mental health). (People v. Massie (1998)
19 Cal.4th 550,
576
.) A statement may be involuntary if “‘elicited by any promise
of benefit’” (People v. Holloway (2004)
33 Cal.4th 96, 115
) or
threats of harm (People v. McWhorter (2009)
47 Cal.4th 318, 347
).
A court must examine the totality of the circumstances
surrounding the admission. (Linton, at p. 1176; People v. Guerra
(2006)
37 Cal.4th 1067, 1093
.) We review the trial court’s factual
findings (including its credibility findings) for substantial
evidence, but its ultimate determination of voluntariness de novo.
(Winbush, at pp. 452-453.)
       Navarro’s statement to the undercover agents was
voluntary. Although Navarro was 30 years younger than the two
undercover agents, Navarro believed he was talking with fellow
gang members, and spoke with them for only an hour. Navarro
started out the conversation by announcing his gang affiliation
and moniker, and interspersed his statements about the crime
with jibes about favorite sports teams. (E.g., People v. Jenkins
(2004)
122 Cal.App.4th 1160, 1173
[statement made when a
defendant is “unaware” that he is talking to government agents
and instead believes he is “talking to a friend” is less coercive].)
       Guerrero’s statement to the undercover agents was also




                                 8
voluntary. He also started out by announcing his gang affiliation
and moniker, and almost immediately started to discuss the
details of the crime. Although Guerrero later testified that he
was “afraid” of the agents, he did not thereafter renew his motion
to exclude the statement and substantial evidence supports the
trial court’s finding that Guerrero’s statement was voluntary and
not the product of coercion.
       Defendants resist this conclusion with two categories of
arguments.
       First, they argue that Navarro’s statement was the product
of “threats” by the undercover agents “that Navarro would suffer
gang discipline if he did not share details of the shooting” with
them. Although the agents implored Navarro to tell them what
happened so they could inform the “older cats” in custody what
Navarro’s “deal” was and so they could assess whether Guerrero
had been “bullshitting” them about the crime, Navarro was
unmoved by any pressure that might have created; instead, he
demanded that the agents lift up their shirts and openly refused
to “speak on it” because he did not “know” the agents. What
prompted Navarro to speak was his realization that Guerrero had
already shared several details of the crime with the agents. This
was a voluntary decision on Navarro’s part. Defendants relatedly
argue that the agents acted as “hardened gangsters” who held
defendants’ safety “if not their very lives, in their hands,” but this
argument is refuted by the recording, which indicates that the
agents did not assert any particular stature with the gang and
instead cast themselves as would-be protectors willing to “school”
them on how to get by in custody.
       Second, defendants argue that two cases—Arizona v.
Fulminante (1991)
499 U.S. 279
(Fulminante) and People v.




                                  9
Haydel (1974)
12 Cal.3d 190
(Haydel)—dictate a finding that
Navarro’s statement was involuntary. We disagree. In
Fulminante, the Supreme Court held that a defendant’s
confession to a fellow inmate was involuntary because the inmate
had told the defendant that he knew defendant was ‘“starting to
get some tough treatment and whatnot’” from other inmates
because the defendant had killed a child, and conditioned his
willingness to protect defendant on defendant “tell[ing] him
about” the crime. (Fulminante, at p. 283.) The Supreme Court
concluded that the “fear of physical violence, absent protection
from [the agent]” caused the defendant’s will to be “overborne in
such a way as to render his confession the product of coercion.”
(Id. at p. 288.) Unlike in Fulminante, there were no credible
threats of violence leveled at Navarro, the agents did not promise
any quid pro quo of protection for confession, and Navarro was an
experienced gang member who bragged about avoiding
incarceration and pushed back against the agents without
hesitation (while Fulminante was of small build, had only a
fourth grade education, and in previous incarcerations “felt
threatened,” was placed in protective custody, and admitted for
psychiatric treatment (id. at p. 286, fn. 2)). In Haydel, the court
held that a defendant’s confession and consent to search his home
made after hours of questioning and made only after he was told
that his wife and infant child would be released from police
custody only if he signed the consent form was “obtained in ‘an
atmosphere of substantial coercion,’ created by the security
officers,” and it was thus “the product of psychological coercion
and involuntary.” (Haydel, at p. 201, citation omitted.) This case
entails nothing similar to the psychological coercion used in
Haydel, as defendants’ family members were not detained or used




                                10
as leverage.
      B.     Inadmissibility under the rules of evidence
      Navarro argues that the trial court erred in admitting
Guerrero’s statement to the undercover agents against him under
the declaration against interest exception to the hearsay rule.3
             1.    Pertinent facts
      Prior to trial, Navarro moved to exclude Guerrero’s
statement as evidence against him, partly on the ground that the
portions of the statement implicating Navarro were not a
declaration against Guerrero’s penal interest. The trial court
overruled this objection, finding that Guerrero’s references to
what “we”—that is, Guerrero and Navarro—had done together
meant that those portions of Guerrero’s statements explaining
what Navarro had done also incriminated Guerrero and hence
qualified as statements against Guerrero’s penal interest.
             2.    Analysis
      Navarro’s statement to the undercover agents is hearsay
because it is an out-of-court statement admitted for its truth.
(Evid. Code, § 1200.) “To demonstrate that a [hearsay statement]
is admissible as a declaration against interest [under section
1230], ‘[t]he proponent of such evidence must show [(1)] that the


3      To the extent that Guerrero’s argument that the admission
of Navarro’s statement to the undercover agents was prejudicial
to Guerrero could be read as independently asserting that the
trial court violated the Sixth Amendment’s Confrontation Clause
by admitting Navarro’s statement against Guerrero, this
argument lacks merit because the Confrontation Clause only
applies to “testimonial hearsay” (Crawford v. Washington (2004)
541 U.S. 36, 53
), and a statement unknowingly made to
undercover agents is not “testimonial hearsay” (People v. Arauz
(2012)
210 Cal.App.4th 1394, 1399-1402
(Arauz)).




                               11
declarant is unavailable, [(2)] that the declaration was against
the declarant’s penal interest when made[,] and [(3)] that the
declaration was sufficiently reliable to warrant admission despite
its hearsay character.’” (People v. Grimes (2016)
1 Cal.5th 698,
711
(Grimes), quoting People v. Duarte (2000)
24 Cal.4th 603,
610-611
(Duarte).) Here, Guerrero was unavailable (the first
element) because he had a constitutional right not to testify
(Evid. Code, § 930), and statements made to undercover agents
are typically found to be “sufficiently reliable” (the third element)
because the declarant in that situation has no reason to
embellish or shade his story (as he would if speaking with law
enforcement officers) (e.g., People v. Smith (2017)
12 Cal.App.5th
766, 792
(Smith)). “‘In determining whether a statement is truly
against interest [(the second element)] . . ., the court may take
into account not just the words but the circumstances under
which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.’” (Grimes, at p.
711, quoting People v. Frierson (1991)
53 Cal.3d 730, 745
.) We
review the admission of evidence for an abuse of discretion.
(Grimes, at p. 711.)
       The trial court did not abuse its discretion in concluding
that all of Guerrero’s statement, including those portions
implicating Navarro, were against Guerrero’s penal interest and
sufficiently trustworthy (and hence admissible against Guerrero
and Navarro as a statement against interest). To be sure, courts
may apply the declaration against interest exception only as to
portions of an out-of-court statement that “specifically disserve[]”
the declarant’s penal interest. (Duarte, supra,
24 Cal.4th at p.
612
.) But portions of a statement that implicate others in a crime
fit within the exception as long as they are “inextricably




                                 12
intertwined with the declarant’s admission of criminal liability.”
(Grimes, supra,
1 Cal.5th at p. 716
.) Here, the portions of
Guerrero’s statements implicating Navarro specifically disserved
Guerrero’s penal interest and were inextricably intertwined with
Guerrero’s own admission of criminal liability. That is because
Guerrero stated that he and Navarro were on a “mission”
“hunting” for “fools” from Pico Nuevo, that they saw a “fool” from
“Southside Whittier” throw up a gang sign; that Guerrero asked
Navarro whether Navarro was “ready”; that Guerrero stopped
the car so Navarro could get out and open fire; and that “we”—
that is, Guerrero and Navarro—“put [the victim] in a body bag.”
By indicating that Guerrero knew of and intended to further a
joint plan to kill their rival gang member, Guerrero’s references
to Navarro directly implicate Guerrero in that murder as an
aider and abettor. Although Guerrero’s role in the murder (as
driver) was less than Navarro’s (as shooter), Guerrero’s
statement accurately portrayed their roles and did not “shift the
blame” in a way that rendered his statement untrustworthy.
(See
Arauz, supra,
210 Cal.App.4th at pp. 1400-1401 [driver’s
statement accurately recounting his role as driver as well as
defendant’s role as shooter admissible against both as a
declaration against interest]; see generally,
Smith, supra,
12
Cal.App.5th at p. 792
[“the fact [that] a hearsay statement
portrays the declarant as a more minimal participant in a crime
by itself does not require exclusion or end our analysis”].) And
although Guerrero later portrayed himself as surprised by
Navarro’s action when Guerrero testified, that self-serving,
subsequent statement did not negate the incriminating aspects of
his statement to the undercover agents at the time that
statement was made.




                               13
       C.     Inadmissibility under the Racial Justice Act
       Navarro next argues that the statements that he and
Guerrero made to the undercover agents must be excluded
because they were obtained in violation of the Racial Justice Act
of 2020 (the Act) (§ 745). Specifically, Navarro argues that the
Act was violated because (1) law enforcement placed Hispanic
undercover agents in the jail cell when he and Guerrero are also
Hispanic, and (2) he, Guerrero and the agents repeatedly used
the “n” word. The Act generally prohibits “seek[ing] or
obtain[ing] a criminal conviction . . . on the basis of race,
ethnicity, or national origin” (§ 745, subd. (a)), and as pertinent
here, more specifically prohibits “[t]he judge, an attorney in the
case, a law enforcement officer involved in the case, an expert
witness, or juror” from “exhibit[ing] bias or animus towards the
defendant because of [his] race, ethnicity, or national origin” (id.
at subd. (a)(1)) and prohibits the same individuals, “[d]uring the
defendant’s trial,” from “us[ing] racially discriminatory language
about the defendant’s race, ethnicity, or national origin, or
otherwise exhibit[ing] bias or animus towards the defendant
because of the defendant’s race, ethnicity, or national origin . . .”
(id. at subd. (a)(2)). To the extent Navarro challenges the
meaning of the Act, our review is de novo (People v. Lashon
(2024)
98 Cal.App.5th 804
, 810 (Lashon)); to the extent he
challenges any factual findings made by the trial court, we review
those findings for substantial evidence (People v. Dunn (2025)
18
Cal.5th 129
, 154).
       We reject Navarro’s Act-based assertions for two reasons.
       First, he has forfeited these claims because he at no time
objected under the Act before the trial court, even though the Act
had been in effect for over three years prior to his trial. This




                                 14
constitutes a forfeiture. (See Lashon, supra, 98 Cal.App.5th at
pp. 810-817; People v. Singh (2024)
103 Cal.App.5th 76
, 112-
116; People v. Quintero (2024)
107 Cal.App.5th 1060
, 1077; People
v. Corbi (2024)
106 Cal.App.5th 25
, 41; People v. Wagstaff (2025)
111 Cal.App.5th 1207
, 1219-1221.)
       Second, Navarro’s claims lack merit.4 Navarro makes no
effort to explain how the use of Hispanic undercover agents to
pose as members of a Hispanic gang when speaking with
defendants who are Hispanic gang members violates the Act or in
any way exhibits bias or animus toward Navarro on the basis of
his race or ethnicity. We also reject the argument that the use of
the “n”-word by Navarro, Guerrero and the agents, as a familiar
term between fellow gang members, violates the Act by
exhibiting bias or animus toward Navarro or Guerrero on the
basis of their race or ethnicity. The use of the term was not
directed toward any African-Americans and was relevant to show
the casual and non-threatening interaction between defendants
and the undercover agents.
II.    Exclusion of Evidence As to Why Guerrero Was
Placed in Protective Custody
       Guerrero contends the trial court violated due process
rights by excluding evidence that Navarro had Guerrero beaten
as a snitch for telling the police he did not know, in advance, that
Navarro was going to shoot the victim.
       A.    Pertinent facts
       As noted above, Guerrero told the undercover agents that
he and Navarro had entered rival gang territory on a mission to


4     As a result, Navarro’s related claim of ineffective assistance
of counsel also necessarily fails. (See People v. Ledesma (2006)
39
Cal.4th 641, 748
.)




                                15
find members of a particular rival gang and, when they could not
find any such members, they saw and then issued gang
challenges to a different rival gang member and, after Guerrero
confirmed that Navarro was “ready,” stopped the car so Navarro
could shoot that rival gang member. Just hours after talking to
the undercover agents, Guerrero told law enforcement officers
that he had no idea Navarro had a weapon, denied that he
stopped the car, and professed that he was totally surprised when
Navarro had opened fire on the victim.
      After Guerrero informed the trial court, mid-trial, that he
planned to testify, he indicated his intent to testify that he had
gotten beaten up while in custody, that he had been placed in
protective custody at his own request, and that he believed that
Navarro had engineered the beatings after viewing Guerrero as a
“snitch.” Guerrero argued that these facts “corroborat[ed]” his
statement that Navarro had spontaneously shot the victim
without Guerrero’s advance knowledge. Navarro’s counsel
objected to testimony suggesting that Navarro had engaged in
witness intimidation on grounds of Evidence Code section 352.
Guerrero offered to “limit” the questioning to “is he in protective
custody? Yes. And why? Because of assaultive conduct towards
him, period.” In part because the trial court did not want to “get
into a whole new trial as to why [Guerrero] was attacked,” the
court implicitly sustained Navarro’s section 352 objection and
ultimately ruled that Guerrero could testify that he had asked to
be placed in protective custody because he was concerned about
his safety, but could not testify that Navarro was behind it.
      Guerrero then took the stand. He testified that he was in
protective custody because he was “concerned for [his] safety”




                                16
because he had been told he had “snitched.” He also admitted
that, while in jail, he got several more Whittier 13 gang tattoos.
       B.    Analysis
       Evidence Code section 352 empowers a trial court to
“exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Evid. Code, § 352.) Evidentiary rulings
that comply with the Evidence Code do not violate due process.
(People v. Hawthorne (1992)
4 Cal.4th 43, 58
; People v. Lawley
(2002)
27 Cal.4th 102, 154-155
; People v. Jones (2013)
57 Cal.4th
899, 957
.) As noted above, we review a trial court’s evidentiary
rulings for an abuse of discretion.
       Guerrero’s unbidden offer to the trial court to limit the
scope of testimony to the testimony actually elicited at trial
constitutes a waiver. (Evid. Code, §§ 353 & 354; People v. Peters
(1970)
7 Cal.App.3d 154, 159-160
[defendant who withdrew his
motion under section 1538.5 and stipulated to the admissibility of
the evidence could not raise the search and seizure issue on
appeal].)
       However, the trial court did not in any event abuse its
discretion in excluding the evidence that Navarro was
responsible for the beatings that Guerrero suffered in custody as
a “snitch.” To begin with, Guerrero did not proffer that he had
any evidence that Navarro was behind the beatings; he only
indicated his belief that it was so. This is speculative, and hence
has little probative value. Even if we assume a stronger basis to
suspect Navarro was the architect of the violence against
Guerrero, whether Navarro was upset with Guerrero because




                                17
Guerrero had disclaimed any advance knowledge of Navarro’s
intent to shoot the victim does not tend to show that Guerrero
lacked that advance knowledge. Put differently, Navarro would
have an incentive to engineer violence against Guerrero by virtue
of Guerrero’s admission that he saw Navarro pull the trigger—
regardless of whether Guerrero had accepted or disclaimed
responsibility for his role in that shooting. Conversely, evidence
that Navarro had engineered violence against Guerrero would be
incredibly prejudicial to Navarro because it strongly resembles
inadmissible propensity evidence—particularly when it rests on
such a thin reed as Guerrero’s uncorroborated speculation. (Cf.
People v. Reeder (1978)
82 Cal.App.3d 543, 552-553
[where
evidence has a “probative value” that is “significant,” due process
may mandate its admission notwithstanding its prejudice to a co-
defendant].)
       Because there is no abuse of discretion, there is also no due
process violation.
III. Admission of Gang Evidence
       Navarro argues that the trial court erred in allowing the
People to introduce gang evidence, although he does not
specifically describe which gang evidence is allegedly
problematic. As noted above, we review a trial court’s
evidentiary rulings for an abuse of discretion.
       A.    Pertinent facts
       Sheriff’s Detectives Kyle Gillespie and Theodor Baljet,
respectively, testified that the Whittier 13 and Southside
Whittier gangs were rivals with adjacent territories, and that the
location of the shooting was within the Southside Whittier gang’s
territory. The detectives also testified that Hispanic gang
members from southern California were known as Southsiders




                                 18
and were part of the Mexican Mafia in the jail and prison system,
that young gang members in custody had to follow Southsiders’
rules as inmates or risk injury or death, and that Southsider
rules forbade gang members from shooting out of a moving
vehicle and from falsely taking credit for a crime they did not
commit. Detective Gillespie also explained that the phrase
“banging on” means asking a person their gang affiliation and
possibly displaying gang signs, and “putting in work” meant to
commit crimes for the gang.
       In response to Navarro’s general objection to gang evidence
where no gang enhancement had been alleged by the People, the
trial court ruled that the proffered gang evidence was admissible
to show the motive for the crime as well as define certain terms
that jurors would not otherwise understand. The court
subsequently instructed the jury that the gang evidence was
admissible “for the limited purpose of deciding whether[] [t]he
defendants had a motive to commit the crimes charged” and “for
[no] other purpose.”
       B.    Analysis
       The trial court did not abuse its discretion in admitting the
gang evidence in this case. Gang evidence is admissible in a
“gang-related case” “if relevant to motive or identity, so long as
its probative value is not outweighed by its prejudicial effect.”
(People v. Williams (1997)
16 Cal.4th 153, 193
.) Further,
evidence regarding the use of slang by gang members is
admissible. (E.g., People v. Champion (1995)
9 Cal.4th 879
, 924-
925.) Here, both Guerrero and Navarro told the undercover
agents that the victim was shot because of his affiliation with a
rival gang, and those conversations employed the slang defined
by the gang expert. Because the gang expert’s testimony had




                                19
substantial probative value, and because the court gave a
limiting instruction that mitigated any unfair prejudice, the court
did not abuse its discretion in admitting this evidence.5
       Navarro’s chief argument in response is that the newly
enacted section 1109, which requires gang allegations to be
bifurcated (see Assem. Bill No. 333 (2021-2022 Reg. Sess.), Stats.
2021, ch. 699, § 2, subds. (d)(6), (e), (f)), precluded the admission
of the evidence in this case. He is wrong. First, Navarro has
forfeited this claimed error because he failed to object on this
ground in the trial court. (Evid. Code, § 353.) Second, the claim
of error is meritless because our Supreme Court has held that
gang evidence is still relevant in the guilt phase of a trial when
relevant to the crime itself, as it was here. (People v. Tran (2022)
13 Cal.5th 1169
, 1208 [“gang evidence, even if not admitted to
prove a gang enhancement, may still be relevant and admissible
to prove other facts related to a crime”].)
V.     Sentencing Issues
       Navarro raises three challenges to his sentence.
       A.    Failure to order a post-verdict probation report
       Navarro contends the trial court erred in sentencing him
without first ordering a post-verdict probation report (and erred
by instead relying upon the pre-plea probation report). We reject
this argument for three reasons. First, Navarro never asked the
trial court to order a post-verdict report, so has forfeited the issue

5     Indeed, Navarro does not argue the trial court erred in
determining the evidence was relevant and admissible pursuant
to Evidence Code section 352. We therefore accept that ruling as
correct. (See Tukes v. Richard (2022)
81 Cal.App.5th 1
, 12, fn. 5
[“A contention not appropriately raised in the opening brief under
a separate argument heading may be deemed forfeited”].)




                                 20
on appeal. (In re Cheryl E. (1984)
161 Cal.App.3d 587, 603
[“A
party on appeal cannot successfully complain because the trial
court failed to do something which it was not asked to do . . .”].)
Second, he cites no authority that obligates a trial court to order
a post-verdict probation report. Lastly, the absence of a post-
verdict probation report was harmless in this case because (1)
Navarro does not identify how a post-verdict probation report
would have differed from the pre-plea report (beyond the content
of the trial over which the trial court presided), and (2) Navarro
is statutorily ineligible for probation in any event (People v.
Bullock (1994)
26 Cal.App.4th 985, 987, 989
[“a report is not
required for [probation-ineligible] defendants upon original
sentencing”]; see also §§ 1203, subds. (e)(2)–(3), (g), 1203.06,
subd. (a)(1)(A)).
       B.     Refusal to dismiss the firearm enhancement
under section 1385
       Navarro asserts the trial court erred by failing to dismiss or
reduce the 25 year-to-life firearm enhancement. Specifically, he
urges that the court should have dismissed or reduced that
enhancement under section 1385 because (1) section 1385
provides than an enhancement that “could result in a sentence of
over 20 years” “shall be dismissed” (§ 1385, subd. (c)(2)(C)), and
(2) application of that enhancement “would result in a
discriminatory racial impact” under the Racial Justice Act
through disparate sentencing (id. at subd. (c)(2)(A)). Because the
resolution of this question turns on issues of statutory
interpretation and the application of the law to undisputed facts,
our review is de novo. (People v. Prunty (2015)
62 Cal.4th 59, 71
[statutory interpretation]; Boling v. Public Employment Relations
Bd. (2018)
5 Cal.5th 898, 912
[undisputed facts].)




                                 21
       Navarro’s argument fails for multiple reasons. For
starters, the trial court declined to dismiss the firearm
enhancement (and declined to impose consecutive sentences) due
to its “major concern” that defendant’s conduct posed a risk to
“public safety” insofar as Navarro’s act in opening fire in front of
a liquor store during business hours placed “a lot more people” at
risk of being shot. Where, as here, a “[trial] court finds that
dismissal of an enhancement ‘would endanger public safety,’”
then the court “need not consider” whether any of section 1385’s
mitigating circumstances exist. (People v. Mendoza (2023)
88
Cal.App.5th 287
, 296.) Neither mitigating circumstance cited by
Navarro exists here in any event. The application of the 25 year-
to-life firearm enhancement would not “result in a sentence of
over 20 years” because the 25 year-to-life base sentence for
murder already exceeds 20 years. (People v. Torres (2025)
113
Cal.App.5th 88
, 93-94.) What is more, the statutory language
indicating that the enhancement “shall” be dismissed does not
make dismissal mandatory. (E.g., People v. Mazur (2023)
97
Cal.App.5th 438
, 444.) And the mitigating circumstance
regarding racially disparate sentencing is inapt because Navarro
offered no evidence of such a racial disparity.
       C.     Failure to consider Navarro’s youth and lack of
criminal history
       Navarro argues that the trial court failed to consider his
youth and lack of criminal history. This argument fails because
the trial court had information about Navarro’s age and criminal
history before it (and, indeed, referred to Navarro and Guerrero
as “young men” at the time of sentencing). We presume that the
trial court considered all relevant facts absence evidence to the
contrary (People v. Myers (1999)
69 Cal.App.4th 305, 310
[“The




                                 22
court is presumed to have considered all of the relevant factors in
the absence of an affirmative record to the contrary”]), and no
such evidence exists here.
                         DISPOSITION
      The judgments are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                     ______________________, P. J.
                                     HOFFSTADT
We concur:



_________________________, J.
MOOR



_________________________, J.
KIM (D.)




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