People v. Berg CA1/2

Opinion

Filed 9/22/26 P. v. Berg CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A172971 v. (Sonoma County EVAN DAVID THOMAS, Super. Ct. No. CR0587-1) Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, A172861 v. (Sonoma County JEFFREY JOHN BERG, Super. Ct. No. CR0587-2) Defendant and Appellant.

A jury found defendants Evan David Thomas and Jeffrey John Berg guilty of felony assault and found each defendant personally inflicted great bodily injury upon the victim, who, like defendants at the time, was an inmate in the Sonoma County jail. In these consolidated appeals, defendants contend (1) the trial court erred in admitting unredacted video from a responding correctional officer’s body-worn camera and (2) the prosecutor erred in commenting that jurors were not allowed to consider things outside the evidence at trial and that the 1 jurors could not speculate about why the victim did not testify. Berg also seeks correction of a minute order and abstract of judgment, and the Attorney General points out that Thomas received an unauthorized sentence. We will reverse Thomas’s sentence and remand for resentencing and otherwise affirm.1 FACTS AND PROCEDURAL BACKGROUND By joint information, the Sonoma County District Attorney charged Thomas and Berg with assaulting Angelo M. by means likely to produce great bodily injury (Pen. Code,2 § 245, subd. (a)(4)) and alleged defendants personally inflicted great bodily injury. (§ 12022.7, subd. (a).) Numerous aggravating circumstances were also alleged.3 Defendants were tried together. The Prosecution’s Case In July 2024, Thomas, Berg, and Angelo were inmates in the G module of the Sonoma County Main Adult Detention Facility (Sonoma county jail). G module has two tiers of cells with a dayroom in the open area of the lower level; there are two sets of stairs connecting the lower level to the upper tier. Angelo, Thomas, and Berg were all housed on the upper tier. Angelo was in cell 58, the last cell at the end of a hallway at one end of the upper tier.

1 During the pendency of this appeal, Berg’s appellate counsel filed a petition for habeas corpus relief in this court. We deny the habeas petition (A176315) by separate order filed this day. 2 Undesignated statutory references are to the Penal Code.

3 Defendants were also charged with battery with infliction of serious bodily injury (§ 243, subd. (d)), but this charge was dismissed on the People’s motion.

2 Thomas and Berg were cellmates in cell 28, on the other side of the upper tier.4 On the afternoon of July 19, 2024, correctional deputy Iturbe was the only officer working in G module. Around 2:00 p.m., the inmates from the upper tier were on “out-of-cell activity,” a time when inmates are permitted to leave their cells, and “they can shower, watch TV, exercise.” Iturbe was conducting a round on the lower level when he “noticed that the module went quiet,” which was unusual because “it gets pretty loud” during out-of-cell activity time. Iturbe went to the dayroom to investigate why it was so quiet and activated his body-worn camera. From the dayroom, Iturbe “looked up at the top tier, near Cell 58”— Angelo’s cell—and “saw two white males assaulting another.” Iturbe told the men to stop and told the rest of the unit to “lock down,” which, he explained at trial, basically meant he “told everyone to go back to their cells.” Once additional jail staff arrived at the module, Iturbe went up the stairs to Angelo on the upper tier. At the top of the stairs, Iturbe saw the two men who had been assaulting Angelo; they were standing near cell 51 and cell 50, facing the wall with their hands behind their backs. At the time, Iturbe did not know who the two men were, but at trial, he identified Thomas and Berg as the men he saw assaulting Angelo and then standing at the top of the stairs near cells 51 and 50. A video clip from Iturbe’s body-worn camera was played for the jury and received in evidence. The footage shows two men approach another man 4 Describing the locations of the cells, a correctional officer testified that, “if you think of the top tier as a horseshoe shape,” Angelo’s cell and defendants’ cell were on opposite sides of the horseshoe. Around 80 people were housed in G module, about 50 of whom had cells on the upper tier.

3 at the dead end of the hallway near cell 58 on the upper tier; the two men appear to push the man to the floor, bend or crouch over him, and then punch or strike him repeatedly. Iturbe yells, “Hey break it up. Everyone lock down,” at which point, the two assailants stand up and slowly walk away from the man they attacked. The view shifts momentarily to the lower level and when the view returns to the upper tier, two men who appear to be the assailants walk by the top of the stairs; these two men stop, turn to face the wall, and put their hands behind their backs. As Iturbe approaches Angelo lying on the ground, Angelo’s legs and torso can be seen shaking, and a deputy can be heard reporting “an apparent seizure.” Correctional deputy Auch was working in the booking area of the Sonoma county jail when he was alerted to an incident in G module. He activated his body-worn camera and responded to the module immediately. Auch entered G module and went through the lower level toward the stairs closest to cell 58. He saw Thomas and Berg walking away from the area of cell 58 toward the stairs. (Auch was already familiar with Thomas and Berg prior to this incident.) As Auch walked toward cell 58, he observed Thomas and Berg at the top of the stairs facing the wall with their hands behind their backs. When Auch reached cell 58, he found Angelo on the ground in a pool of blood. Angelo “began shaking and had what appeared to be a seizure,” and “when he was not seizing, he was moaning and groaning, crying out in pain.” Emergency medics from the jail arrived, and “[t]raditional EMS service arrived later on” and took Angelo by ambulance to the hospital. While officers and medics attended to him as he lay on the floor near his cell, Angelo appeared to have two or three more seizures and he “appeared [to] . . . los[e] consciousness at one point during the incident.”

4 Correctional Deputy Valerio also responded to the report of an incident in G module. When he arrived at the module, he “heard some commotion and some screaming from the top tier, on the left side,” and he headed toward the noise near cell 58. At the top of the stairs, Valerio passed Thomas and Berg (both of whom he was already familiar with); they were standing between cells 51 and 50, facing the wall with their hands behind their backs. As he passed them, Valerio noticed that Thomas’s hands were shaking as if “from a huge adrenaline rush,” and there was a substance that looked like blood on his hands. Deputy Sheriff Durrett contacted Thomas and Berg about two hours after the incident. She observed Thomas’s hands and noted some swelling near his right pinky finger and red marks along his knuckles. She did not see any defensive wounds on any exposed part of his body. (She did not look under his clothes.) Durrett also looked at Berg’s hands and noted his right hand had redness along his knuckles. It appeared “there was a bruise forming” on the knuckle of his middle finger. Durrett did not see any defensive wounds on Berg either. Medical records from Providence Santa Rosa Memorial Hospital showed that Angelo was admitted to the hospital on July 19, 2024, and discharged the next day. The records showed Angelo’s “[f]inal [d]iagnoses” included “[f]racture of nasal bones, initial encounter for closed fracture,” “[c]ontusion of unspecified part of head, initial encounter,” “[o]ther symptoms and signs involving the musculoskeletal system,” “[p]ain in right hand,” and “[p]ain” in both shoulders. Footage from Auch’s Body-Worn Camera In addition to the officers’ testimony, video from Iturbe’s body-worn camera, and the hospital record, a 28-minute video clip from Auch’s body- 5 worn camera was played for the jury and received in evidence. The footage begins with Auch’s view as he enters G module and quickly moves through the lower level, up the stairs, and down the hallway to Angelo near cell 58. The footage ends with Auch still near cell 58 as EMS personnel work on moving and securing Angelo to a backboard in preparation for carrying him to an ambulance. Because defendants challenge the admission of certain parts of this unredacted video on various grounds, we describe the evidence in some detail. Early in the footage, Angelo can be seen with blood all over his right hand and large splatters of blood on his sweatshirt. His nose and mouth are covered in blood, and there is blood on the floor under his head. Angelo cries and moans in apparent pain, his breathing sounds labored, and at least six officers wearing gloves attend to him. Around four minutes in, someone asks, “was he involved in a fight?” and Auch responds, “He’s the victim.” A few seconds later, Auch states, “He’s seizing again,” and Angelo’s body can be seen convulsing for about 20 seconds as jail medical personnel arrive. Angelo cries out in apparent pain as jail medical personnel try and fail to place a collar around his neck. Around seven minutes in, a jail medic wipes some of the blood off Angelo’s face and states that his airway is clear. Medical personnel ask to look in Angelo’s eyes and tell him, “Keep breathin’ man, you’re okay. We got you.” Auch addresses Angelo, “This is Auch.” “[W]e’ve helped you out before through, through stuff like this okay. We’re gonna take care of you, alright?” More than eight minutes in, Angelo says, “What, what happened to me?” and Auch responds, “I’m not sure.” Angelo says, “Who did this?” and Auch responds, “I don’t know.” Angelo is still lying on the floor covered in blood; one medic supports his head, and another nurse holds his shoulder and 6 back. Around the nine-minute mark, Auch asks, “. . . do you remember anything?” and Angelo responds, “Got jumped.” Auch asks if Angelo saw anybody, and Angelo responds, “I don’t remember.” Angelo states, “I was just, came upstairs for my cup in the bedroom” (i.e., cell 58), “[c]ame out and got attacked.” He continues that he “[n]ever ever have had issues” but “[s]omeone said I snitched just recently or something.” A medic then cuts the back of Angelo’s sweatshirt off to check for spinal injuries. Angelo says, “My nose is killin’ me,” and a medic says, “Yeah. Looks like it’s probably broke[n].” Around 12 minutes in, Angelo becomes nonresponsive and the nurse at his back begins tapping his chest and says, “Hey, talk with us. Do you know where you are? Angelo? Angelo? You need to talk with us as much as you can, alright? Try to answer our questions.” In the 14th minute, Angelo inhales sharply and appears to cough blood. In the 15th minute, Angelo moans and says, “I’m in so much pain.” The nurse tells him, “Okay. Unfortunately, you are feeling this pain right now is a good sign, okay?” Angelo continues crying. At around the 17-minute mark, Auch tells Angelo that “EMS is here” and, “They’re here to take care of ya.” Angelo responds, “[I j]ust wanna be safe. Ah what the fuck [unintelligible].” Auch tells Angelo he “want[s] to make sure we get to the bottom of this.” Angelo says, “I know what’s up.” Auch says to Angelo, “Okay. Are you able to give me any information? That way I can make sure things get handled.” Angelo responds, “Later.” Auch says, “Later? Once we get outta here I’ll keep talkin’ to you, okay? Once we get rollin.’ I gotcha.” Angelo continues, “I don’t know what’s goin’ on I mean, ah someone said I told or somethin’ I don’t know [unintelligible],” “it’s bullshit,” “Absolute lie,” and, “Fuckin’ lie. I never had issues in my life.”

7 Around 18 minutes in, Angelo says, “What the fuck is happening?” Auch responds that he does not know and confirms with Angelo that he (Angelo) did not see who attacked him. Auch asks if Angelo remembers who accused him of snitching, and Angelo responds, “I don’t want to talk.” Angelo is still lying on the floor with the nurse kneeling behind him when EMS personnel arrive at the scene. In the 20th minute, an EMS medic asks Angelo on a scale of one to 10 how much pain he is in “right now.” Angelo responds, “Ten,” and then, “Twelve.” EMS personnel put a collar on his neck and move him to a backboard. Angelo yells, groans, and cries, “Ow, ow,” at various times. Around 25 minutes in, Angelo is on the backboard, and he says, “Can’t breathe,” “Blood.” EMS personnel tilt the backboard, and Angelo appears to gag on his own blood and then cough and cry. At least five people can be seen working on securing Angelo to the backboard. Angelo says, “My fuckin’ nose is killin’ me. Oh my god,” and an EMS medic tells him they’re going to “suction and keep as much of it out. It’s gonna be uncomfortable.” Angelo cries, “Ow, ow, ow,” as personnel continue to work on strapping him to the board. At the end of the video, Angelo is strapped to the backboard on the floor, and he can be heard crying and groaning. Defense Neither defendant called any witnesses, and Thomas did not present any evidence. Berg presented evidence of Angelo’s criminal history. In 2017, Angelo pleaded no contest to felony grand theft; in 2018, he pleaded no contest to making or passing a fictitious or altered check, a misdemeanor; in 2022, he pleaded no contest to felony receiving stolen property, motor vehicle; in 2024, he pleaded no contest to misdemeanor petty theft.

8 Verdict and Sentence The jury found Thomas and Berg guilty of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) and found true the enhancement allegation that each defendant personally inflicted great bodily injury upon Angelo (§ 12022.7, subd. (a)). The jury also found true the aggravating circumstance allegation that the crime involved great violence, great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness. (Cal. Rules of Court, rule 4.421(a)(1).) In a subsequent court trial, the trial court found various aggravating factors related to the defendants to be true. As to both defendants, the court found their prior adult convictions or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); they served a prior term in prison or county jail under section 1170, subdivision (h) (id., rule 4.421(b)(3)); and their prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory (id., rule 4.421(b)(5)). As to Thomas, the court further found that he was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed (id., rule 4.421(b)(4)). For Thomas, the trial court imposed the middle term of three years for the assault by means likely to cause great bodily injury, plus a consecutive three years for the great bodily injury enhancement. The court also imposed one-third middle terms of eight months each for four counts in other criminal matters for an aggregate sentence of eight years, eight months. For Berg, the trial court imposed the low term of two years for the assault, plus three years for the enhancement. The court also imposed one- 9 third the middle term of eight months for a count in another matter for an aggregate sentence of five years, eight months. DISCUSSION A. Admission of Video from Auch’s Body-Worn Camera Thomas challenges the admission of the unredacted video from Auch’s body-worn camera. He acknowledges that portions of the video showing “[Angelo]’s initial statements were appropriately admitted as spontaneous utterances or present sense impressions.” But he contends the trial court erred in admitting the entire video “without redacting inadmissible content.” Thomas raises three claims regarding different aspects of the footage: (1) admission of some of Angelo’s statements violated the Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford)); (2) some of the statements by jail deputies were improperly admitted; and (3) the trial court should not have admitted the entire video under the considerations of Evidence Code section 352. Berg joins Thomas’s appellate claims. We find no prejudicial error. 1. Procedural Background In pretrial motions in limine, the prosecutor sought admission of the video from Auch’s body-worn camera, arguing Angelo’s statements made “while under the strain of the assault and its aftermath” were admissible under Evidence Code sections 1240 (spontaneous statements) and 1250 (statements of existing mental or physical state).5 The prosecutor argued 5 Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

10 there was no confrontation clause issue given the circumstances that Angelo was lying on the ground “experiencing multiple seizures, actively bleeding, in immense pain, and clearly in distress” and the deputy’s primary purpose in questioning Angelo “was to actively a[ss]ess an emergency situation and figure out what needed to be done.” At a hearing on motions in limine, Berg’s attorney objected to “a substantial portion of the recording,” arguing the video contained hearsay not covered by the spontaneous-statements exception to the hearsay rule, and “a fair amount of this is cumulative” and should be excluded under Evidence Code section 352. Thomas’s attorney argued evidence of Angelo’s statements “presents a significant Crawford issue” because the prosecution was not going to call Angelo as a witness at trial. The trial court ruled the video footage was admissible in its entirety. The court found there was an “ongoing medical emergency,” and the evidence “meet[s] the criteria of 1240 as a statement that indicates inherent trustworthiness based on the spontaneousness and stress and excitement of the event.” It observed, “[Angelo] is clearly in pain. He is clearly suffering. He’s responding to questions, mostly about his state of mind.” The court determined Angelo’s statements were not “testimonial in nature,” and Evidence Code section 1250 provides in relevant part: “Subject to Section 1252 [providing a statement “made under circumstances such as to indicate its lack of trustworthiness” is not admissible], evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.

11 consequently it did “not see that there’s any Sixth Amendment violation.” Finally, considering Berg’s objection under Evidence Code section 352, the court found the video in its entirety was “more probative than prejudicial.” Later during trial, the prosecutor proposed admonishing the jury that it could consider Angelo’s statements for the truth of the matters asserted but statements by jail and medical personnel could “only be considered to the extent that they provide context to any statements from [Angelo]” and not “for the truth.”6 The trial court agreed to give the admonition, and neither defense attorney objected to the proposed language. Before the video footage was played during Auch’s testimony, the court told the jury: “[L]et me . . . advise you of the following. On the video that is contained in People’s 2 [footage from Auch’s body-worn camera], you may consider the statements of [Angelo] for their truth. [¶] Statements by either jail or medical personnel may only be considered to the extent they provide context to these statements by [Angelo]. They cannot be considered for their truth or any other purpose.” 2. Angelo’s Statements Thomas argues that Angelo’s statements that he “[g]ot jumped,” that someone said he “snitched,” and that he would talk to Auch later should have been excluded because they were testimonial statements barred by the confrontation clause of the Sixth Amendment. We disagree. a. The Confrontation Clause Applies to Testimonial Statements Only In Crawford, supra, 541 U.S. 36, the Supreme Court held the confrontation clause of the Sixth Amendment “bars ‘admission of testimonial 6 It appears that after the trial court ruled the video was admissible in its entirety, the prosecutor may have had second thoughts about whether the statements made by individuals other than Angelo were admissible under the exceptions to the hearsay rule of Evidence Code sections 1240 and 1250.

12 statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.’ ” (Davis v. Washington (2006) 547 U.S. 813, 821, italics added.) “It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.” (Ibid, italics added.) “Generally speaking, a declarant’s hearsay statement is testimonial if made ‘with a primary purpose of creating an out-of-court substitute for trial testimony.’ ” (People v. Fayed (2020) 9 Cal.5th 147, 168.) “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” (People v. Sanchez (2016) 63 Cal.4th 665, 689.) In addition, “to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity.” (People v. Lopez (2012) 55 Cal.4th 569, 581.) Our high court has observed that “[i]nquiries that are conducted in a disorganized way and in turbulent circumstances are distinguishable from” more formal settings such as interviews at a police station or the preparation of an affidavit. (People v. Blacksher (2011) 52 Cal.4th 769, 815.) For example, “a 911 call made during the course of an emergency situation is ordinarily made for the primary nontestimonial purpose of alerting the police about the situation and to provide information germane to dealing with the emergency.” (People v. Gann (2011) 193 Cal.App.4th 994, 1008 [citing cases].) In Gann, the Court of Appeal held that statements by an apparent victim, Hansen, to an officer “at the scene of the crime, shortly after [Hansen’s] 911 call” were nontestimonial where the officer “was primarily 13 concerned with determining what had happened and whether Hansen had any information that could help police find the man dressed in black” who had just shot and killed Hansen’s step-father. (Id. at pp. 1008–1009.) Hansen spoke to the officer while she “was sitting in an ambulance at the scene,” and the court noted the conversation “was not structured or formal.” (Id. at pp. 1002, 1009.) In Michigan v. Bryant (2011) 562 U.S. 344, 349, police officers responding to a report of a shooting found the victim “lying on the ground next to his car in a gas station parking lot”; he “had a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty.” “The police asked him ‘what had happened, who had shot him, and where the shooting had occurred.’ ” (Ibid.) The Supreme Court held “that the circumstances of the interaction between [the victim] and the police objectively indicate that the ‘primary purpose of the interrogation’ was ‘to enable police assistance to meet an ongoing emergency,’ [and, t]herefore, [the victim]’s identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at [the defendant]’s trial did not violate the Confrontation Clause.” (Ibid.) Discussing “the relevance of a victim’s severe injuries to the primary purpose inquiry,” the Supreme Court explained, “The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim’s medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.” (Michigan v. Bryant, supra, 562 U.S. at pp. 364-365.)

14 b. Angelo’s Statements Were Not Testimonial Thomas concedes that “the recording started as an ongoing medical emergency and outside of the testimonial context,” but he argues, “after the medics arrived and began attending to [Angelo], Deputy Auch’s questioning had a primarily investigative purpose,” and “[Angelo]’s measured answers reflect that change in dynamic.” Thomas claims there was a shift in “[t]he tone and nature of the dialogue” about nine minutes into the video when Auch asks if Angelo remembered anything. On our independent review (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 825), we disagree with Thomas’s theory that there was a shift in tone such that Angelo’s statements to Auch became testimonial nine minutes into their interaction. Throughout the 28-minute video, Angelo appears to be in great pain; at times his body convulses, he yells and sobs, he complains of difficulty breathing, and 25 minutes in, he appears to gag on his own blood. Michigan v. Bryant illustrates that when a victim of violence is in great pain at the scene of the crime, his answers to police questions such as “ ‘what . . . happened’ ” and “ ‘who’ ” did this are not necessarily testimonial. (562 U.S. at p. 349; see also People v. Thomas (2011) 51 Cal.4th 449, 492, 497 [where a deputy responding to a request for assistance found a jail inmate “with his throat slashed” and “asked what happened,” the response was not testimonial; the purpose of the “simple question [was] to determine what had occurred so [the deputy] could determine what needed to be done to address the situation”].) Here, we conclude Angelo’s medical condition and the circumstances of his interactions with Auch on the jail floor establish that his statements were not testimonial. Angelo’s “physical distress suggested he did not give his statement[s] with the primary purpose of establishing or proving past events 15 potentially relevant to later criminal prosecution,” “ ‘the questioning . . . occurred in an exposed, public area, prior to the arrival of emergency medical services,[7] and in a disorganized fashion’ ” “and the questions [Auch] asked ‘were the exact type of questions necessary to allow the police “ ‘to assess the situation, the threat to their own safety, and possible danger to the potential victim.’ ” ’ ” (People v. Ramirez Ruiz, supra, 56 Cal.App.5th at p. 824.) Further, Angelo did not make his statements “under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony.” (People v. Cage (2007) 40 Cal.4th 965, 984.) We are not persuaded by Thomas’s argument that there was no ongoing emergency because “the jail module was a secure environment” and “the inmates had been ‘locked down.’ ” As the Attorney General points out, unknown violent inmates could still have presented potential imminent danger to other inmates or jail personnel. We also find there was an ongoing medical emergency based on Angelo’s condition. In sum, we conclude all of Angelo’s statements in the 28-minute video— including that he was “jumped,” that there was a rumor he had “snitched just recently,” and that he would talk to Auch later—were nontestimonial. Accordingly, the admission of Angelo’s statements did not violate the confrontation clause. 3. Deputies’ Statements As we have described, before the video from Auch’s body-worn camera was played for the jury, the trial court instructed that only Angelo’s statements could be considered for the truth of the matter asserted.

7 While jail medics can be seen about four minutes into the video, EMS personnel able to take Angelo to the hospital do not appear at the scene until more than 18 minutes have passed.

16 “Statements by either jail or medical personnel [could] only be considered to the extent they provide context to these statements by [Angelo]” and could not “be considered for their truth or any other purpose.”8 Thomas does not dispute the propriety of this admonition. But he contends some of the deputies’ statements should have been redacted because they did not provide context for Angelo’s statements. Specifically, he identifies what he characterizes as Auch’s “unfounded statement that [Angelo] was ‘the victim,’ ” “the deputies’ lay observations that [Angelo] was ‘seizing,’ ” and Auch’s “irrelevant but prejudicial comment that the officers had helped [Angelo] out ‘through stuff like this’ before.” Assuming without deciding that these three comments should have been redacted, Thomas’s contention fails because he has not shown prejudice. In his opening brief, Thomas does not address prejudice at all.9 In his reply, he attempts to show prejudice arguing as follows: “The extent to which [Angelo] was a victim was for the jury to decide. In closing argument, the prosecutor asserted, ‘the GBI analysis is not any single injury, although he did have a broken nose. It is everything that is contained in that 28-minute video that you can see and assess for yourself.’ . . . If the proof of great bodily injury was the video, then the statements throughout the video 8 Later when instructing the jury, the trial court gave CALCRIM No.

303 as follows: “During the trial, certain evidence was admitted for a limited purpose. You were read an admonition regarding this at the time the evidence was proffered. You may consider that evidence only for that purpose and for no other.” 9 In his opening brief, Thomas argues prejudice based on admission of the “entirety of the recording” and claims Angelo’s “repeated statements exclaiming that his injuries were far more serious than they actually were” were highly prejudicial. (Italics omitted.) But he does not explain how the officers’ statements could have prejudiced him.

17 characterizing the severity and circumstances of [Angelo]’s condition were likely to influence the jurors’ finding on that issue.” This is not persuasive. “[S]tate law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.) A verdict “shall not be set aside . . . by reason of the erroneous admission of evidence unless” a timely and specific objection was made and “the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 353, subd. (b).) In this case, Iturbe testified he saw defendants “assaulting” Angelo; the video from Iturbe’s body-worn camera shows two men approaching a man, pushing him to the ground, and striking him repeatedly and, seconds later, Angelo lying on the ground shaking at the site of the assault; Auch testified that when he first reached Angelo near cell 58, Angelo “began shaking and had what appeared to be a seizure,” and he appeared to have two or three more seizures; and the footage from Auch’s body-worn camera shows Angelo’s body convulsing. Further, the jury was instructed not to consider the statements of jail or medical personnel for their truth. “We presume that jurors follow the instructions provided by the court in the absence of a showing to the contrary.” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 821.) On this record, we do not believe it is reasonably probable that Auch’s statement that Angelo was “the victim,” a deputy’s observation that Angelo was “seizing,” and Auch’s statement to Angelo that deputies “helped [him] out before through, through stuff like this” made a difference in the outcome. In other words, we cannot say it is reasonably probable the verdict would have been more favorable to defendants had those statements been redacted.

18 4. Admission of the Entire Video Thomas also claims the trial court erred in admitting the entire video, arguing, “the prejudice from showing the entirety of the recording outweighed the minimal probative value, as it focused the jurors’ attention on sympathy towards the victim, rather than a dispassionate review of the evidence.” (Italics omitted.) “Evidence Code section 352 vests a trial court with discretion to ‘exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice. . . .’ ‘A trial court’s exercise of discretion in admitting or rejecting evidence pursuant to Evidence Code section 352 “will not be disturbed on appeal unless there is a manifest abuse of that discretion resulting in a miscarriage of justice.” ’ ” (People v. Thomas, supra, 51 Cal.4th at p. 485.) “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612, 638.) Here, the prosecutor argued the “entirety of the clip” was relevant evidence for the jury “to get a full grasp and scope of the amount of pain the victim was in.” The severity of Angelo’s pain following the attack, in turn, was relevant to prove defendants used force likely to produce great bodily injury, defendants personally inflicted great bodily injury, and their crime “involved great violence, great bodily harm, . . . or other acts disclosing a high degree of cruelty, viciousness or callousness” as alleged by the prosecution. (See People v. Cross (2008) 45 Cal.4th 58, 66 [“Proof that a victim’s bodily injury is ‘great’—that is, significant or substantial within the meaning of 19 section 12022.7—is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” (Italics added)].) The trial court found the video in its entirety was “more probative than prejudicial.” “ ‘As a rule, the prosecution in a criminal case involving charges of . . . violent crimes is entitled to present evidence of the circumstances attending them even if it is grim.’ ” (People v. Brasure (2008) 42 Cal.4th 1037, 1054; e.g., People v. Caro (2019) 7 Cal.5th 463, 502 [rejecting claim that “autopsy photos showing the victims’ wounds were so gruesome and inflammatory that their admission was unduly prejudicial under Evidence Code section 352” and noting courts “routinely uphold the admission of autopsy photos to establish the placement of a victim’s wounds and clarify the testimony of prosecution witnesses”]; People v. Streeter (2012) 54 Cal.4th 205, 236, 238 [trial court did not abuse its discretion in admitting “a tape recording in which [the victim] was heard screaming during the ambulance ride to the hospital”; “the evidence ‘did no more than accurately portray the shocking nature of the crimes’ ”].) We see no abuse of discretion in this case. The video evidence was relevant to prove the nature of the crime, and no showing has been made that the evidence was so unduly prejudicial that exclusion under Evidence Code section 352 was required as a matter of law. 5. Cumulative Prejudice Finally, Thomas argues his claimed errors related to the admission of the video from Auch’s body-worn camera prejudiced him when viewed cumulatively. We have rejected his first claim that the admission of some of Angelo’s statements violated the confrontation clause. As to his second claim, without deciding there was error, we have found no prejudice from the failure 20 to redact three statements made by deputies. As to his third claim, we have found the trial court did not abuse its discretion in admitting the entire 28- minute video. Since two of the three claims lack merit and the third is harmless regardless of merit, there is no cumulative prejudice. B. Prosecutor Comments Berg contends, “The prosecutor’s repeated claims that jurors could not consider the absence of testimony from the alleged victim violated [his] right to present a defense.” Thomas joins this argument. (Bolding and Capitalization omitted.) 1. The Comments at Issue Berg claims the prosecutor erred in voir dire and in her rebuttal argument. We summarize the prosecutor’s comments with the comments Berg takes issue with on appeal in italics. a. Voir Dire From the entire voir dire (which runs for more than 120 pages of transcript), Berg focuses on a part of the questioning in which the prosecutor asked the prospective jurors to “imagine that there is a box that’s currently sitting on each of your laps, and it’s empty,” “and as we go through the trial we’re gonna be putting pieces of evidence into that box.” The prosecutor explained that “at the end of the evidence, the jurors would go back into the deliberation room,” “take that box” and “dump it out onto the table.” ·“You’re gonna sort through all of the evidence and look at it collectively to reach a verdict using the law that the judge has provided you. [¶] And you’re only allowed to use what’s in that box. You’re not allowed to have other things outside of that box come into your consideration in reaching your verdict.” (Italics added.) The prosecutor stated that jurors could not consider punishment, and “things like sympathy” are “not in your box.”

21 The prosecutor told the prospective jurors there were often “unanswered questions” and gave the example of a DUI case where at the end of trial, jurors “might have additional questions that were never answered,” like “what kind of alcohol did they have” and how “many drinks specifically did they have?” ·She continued: “There might be a lot of questions that remain but are unanswered. Okay? And when you dump that box of evidence during deliberations, you might be tempted to speculate about what those answers might be or to wonder what those answers might be, but that’s something you have to kind of leave outside your consideration. [¶] Does everyone agree that they feel like they can do that in this case?” ·(Italics added.) Later in voir dire, the prosecutor asked whether everyone thought “they could reach a verdict not having heard from the victim themselves?” ·A prospective juror asked, “literally nothing from them?” The prosecutor responded, “Yes, let’s take it to the far extreme of it, you hear nothing at all from the victim.” (Italics added.) A prospective juror said, “I think it’s important to know a little bit from their point of view what happened.” And another prospective juror said, “Yeah, in the case that they’re deceased and like there’s no way for them to speak—I suppose it would have to be what would be the reason for their nonsharing.” The prosecutor responded, “Okay. And let’s say you never learn that reason, that’s one of those unanswered questions that’s not in your box. Would that bother you? [¶] . . . Can you leave that outside of the box when you’re deliberating? (Italics added.) One prospective juror stated, “It would be difficult. We need to hear from the victim.” ·Another said, “My view on it is I guess maybe there’s a reason. I guess it’s kind of your job to prove to us facts of the case; and if 22 there’s a reason, there’s a reason.” ·This prospective juror continued, “Take what’s in the box,” and the prosecutor responded, “Right.” ·(Italics added.) b. Rebuttal to Defendants’ Closing Arguments In the prosecutor’s closing argument, she referred to her box analogy, stating, “[W]e’re going to review some of the evidence that you heard, some of the pieces of evidence that are in that box we talked about during voir dire, and discuss how that evidence applies to the law in this case.” (Berg does not claim the prosecutor erred in closing argument; he claims error based on the rebuttal only.) In the defense closing arguments, both attorneys emphasized that Angelo did not testify and argued the evidence that was presented failed to prove the prosecution’s case.10 Both defense attorneys also referred to the prosecutor’s box analogy. Thomas’s attorney told the jury Angelo “could have provided crucial sworn testimony to explain exactly what . . . happened, what his role was, who was involved, and why,” and without his testimony “[t]he puzzle box is incomplete.” He said, “We don’t know if, for example, [Angelo] attacked first or had a weapon. We have no idea. . . . They have nobody else who can say what happened. We’re only getting a portion of the story, and we cannot convict on half a story.” Thomas’s attorney argued Angelo did not suffer great bodily injury. Conceding the hospital records showed he had a broken nose, he pointed out “there are no medical notations letting us know that it was, in fact, broken in this incident,” and argued: “We cannot know whether or not [Angelo] had 10 We describe the defense attorneys’ arguments to provide context for the prosecutor’s rebuttal. Berg does not provide this context in his appellate briefs.

23 previously fractured his nose. Maybe for being a jail informant. I don’t know. . . . [¶] Thus, if the fight simply reopened a preexisting injury, we cannot conclude that this fight caused substantial injury. And we cannot know whether that’s the case without [Angelo] or some medical records or some evidence at all to say otherwise.” He concluded, “In this case, the state’s case relies too much on guesswork, on supposition, and a failure to produce a key witness who matters the most in this case, [Angelo].” Berg’s attorney argued to the jury: “The prosecution wants you to bridge enormous gaps in their evidence. They tell you the evidence is in a box; all the evidence you need is there. I disagree. . . . [¶] . . . [¶] Let’s start with Angelo. . . . [H]e had a duty to come and take the stand here and in front of you folks explain what happened and allow us to question him while he is under penalty of perjury.” She argued: “We cannot have a fair trial here when we cannot question the person who the state is claiming was assaulted, who suffered great bodily injury. It is not fair to assume that someone is telling the truth when we cannot question them about their statements. It is not fair to assume that someone is telling the truth when they are hiding out. He is not here.” The prosecutor objected to the argument “[i]mplying that the victim is hiding out,” and the trial court sustained the objection. Berg’s attorney continued: “He is not here. We don’t know why he is (sic) here. But it was the government’s duty to put on the evidence to prove their case. And I submit to you she has left him out, and it says something significant about reasonable doubt.” She also argued that Angelo did not sustain substantial injury, stating she “expect[ed] to hear from a doctor” and asking, “why did [the prosecutor] leave out information regarding the medical diagnoses?”

24 In rebuttal, the prosecutor responded to some of the defense arguments as follows: “In terms of what was left out, to use [Berg’s attorney]’s phrase, I’ll go back to our discussion during voir dire about unanswered questions. And I told you at that point in time—and as is true in every trial—there will be unanswered questions, because we’re trying to re-create a historical moment using the tools that we have, and there will inevitably be unanswered questions. “But what your job is is to look at those elements, and if those elements have been met, that’s all that you need to concern yourselves with. You might have questions about why [Angelo] did not take the stand and confront his two attackers after the experience he had. “The government, as [Berg’s attorney] likes to call the People, myself, we’re not trying to hide [Angelo]. He’s not here. You cannot speculate about why he isn’t here. We covered this in voir dire. There are many reasons, and you’re not going to know why. That’s one of those unanswered questions.” (Italics added.) The prosecutor also argued: “In terms of the medical records, you were provided an excerpt of medical records, and counsel—counsel’s comments could be interpreted as, again, why is she leaving it out? What is she trying to hide? [¶] There are rules of evidence. The judge makes her rulings based on those rules of evidence, the law. The judge has made various rulings. She’s in charge of seeing that this is a fair and just trial.”11 (Italics added.)

11 Here, the prosecutor may have been addressing the fact that the one- page hospital record was heavily redacted. During discussion of motions in limine, the trial court commented about the proposed exhibit, “I would note that it’s appropriately redacted. The information that remains is limited to facts as opposed to an oral statement of observation.” “It doesn’t go to diagnosis in any more editorial manner.”

25 2. Claims of Prosecutorial Error are Forfeited On appeal, Berg asserts, “The prosecutor’s repeated admonition to jurors they were not to consider why the alleged victim did not testify was flatly contrary to the law.” (Bolding and capitalization omitted.) However, “[a] prosecutor’s misstatements of law are generally curable by an admonition from the court.” (People v. Centeno (2014) 60 Cal.4th 659, 674.) Here, defendants’ attorneys made no objection to the trial court as to any of the prosecutor’s comments that Berg now finds fault with. Defendants have thus forfeited any claim of prosecutorial error and their “appeal is foreclosed on that basis.” (People v. Morales (2001) 25 Cal.4th 34, 44 [“Defendant made no objection to the prosecutor’s remarks and thus has waived his claim”]; see People v. Centeno, supra, 60 Cal.4th at pp. 666, 674 [appellate claim that the prosecutor misstated the reasonable doubt standard in closing argument was forfeited by failure to object].)12 3. Claim of Ineffective Assistance of Counsel Berg argues his attorney’s failure to object and request admonition denied him effective assistance of counsel. (Again, Thomas joins this appellate argument.) To succeed on this claim, Berg must show, first “ ‘that counsel’s performance was deficient,’ ” meaning “ ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment,’ ” and, second, “ ‘that the deficient performance prejudiced the defense.’ ” (People v. Aguirre (2025) 18 Cal.5th 629, 679.)

12 While “[a]n appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6), we see no reason to do so in this case.

26 “ ‘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.” ’ [Citations.] When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ‘ “ ‘no conceivable tactical purpose’ ” for counsel’s act or omission. [Citations.]’ [Citation.] ‘[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one’ [citations], and ‘a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.’ ” (People v. Centeno, supra, 60 Cal.4th at pp. 674–675.) “ ‘Representation does not become deficient for failing to make meritless objections’ [citation], and there may be valid reasons why counsel may choose not to make even a meritorious objection [citations]. As one court has explained, ‘From a strategic perspective, . . . many trial lawyers refrain from objecting during closing argument to all but the most egregious misstatements by opposing counsel on the theory that the jury may construe their objections to be a sign of desperation or hyper-technicality.’ ” (People v. Aguirre, supra, 18 Cal.5th at p. 707.) Here, we conclude defendants’ attorneys did not provide deficient representation by failing to object to the comments Berg now claims are “contrary to the law.” (Bolding and capitalization omitted.) We see nothing objectionable in the prosecutor’s comments in voir dire; she merely indicated that the jury would be limited to considering the evidence presented at trial and jurors should not speculate.13 Indeed, even Thomas acknowledges on 13 The jury was instructed in this case, “You must decide what the facts are. It is up to all of you, and you alone, to decide what happened, based only 27 appeal that the “prosecutor’s discouragement of improper speculation during voir dire . . . sounded benign.” As to the prosecutor’s comments in rebuttal, defendants’ attorneys reasonably could have concluded her arguments were unobjectionable. (See People v. Aguirre, supra, 18 Cal.5th at pp. 706, 708 [defense counsel did not provide deficient representation where “counsel reasonably could have concluded that the [argument] by the prosecutor was . . . unobjectionable”].) Berg now claims that the prosecutor’s remarks effectively told the jury that it was “barred from drawing an adverse inference from the prosecution’s unexplained failure to present the testimony of the most obvious witness it could have been expected to produce, the victim.”14 But defendants’ attorneys at trial reasonably could have understood that the prosecutor was properly responding to Berg’s attorney’s suggestion that the prosecution was hiding Angelo. The prosecutor did not tell the jury it could not consider Angelo’s absence in assessing whether the prosecution met its burden of proof; she stated only that the jury could not speculate as to why Angelo did not testify.

on the evidence that has been presented to you in this trial.” (CALCRIM NO. 200, italics added.) 14 Of course, attorney “comment inviting the jury to draw a logical inference based on the state of the evidence, including comment on the failure to call available witnesses, is permissible.” (People v. Ford (1988) 45 Cal.3d 431, 449.) “The jury’s consideration of the absence of evidence, including the failure to call logical witnesses, is consistent with the jury instruction to consider only the evidence introduced at trial (CALCRIM Nos. 200, 222), the instruction not to conduct an independent investigation of the facts (CALCRIM No. 201), and the instruction on the presumption of innocence and the burden of proof (CALCRIM No. 220)” (People v. Alaniz (2017) 16 Cal.App.5th 1, 7), and the jury in this case was properly given all these instructions. As we have described, both defense attorneys commented on the prosecution’s failure to call the victim without objection from the prosecutor.

28 Accordingly, the claim of ineffective assistance of counsel fails. C. Correction of Berg’s Minute Order and Abstract of Judgment Berg notes that the minute order for March 13, 2025, and the abstract of judgment filed March 17, 2025, correctly reflect that he had 238 days of actual custody credit and 273 days of total credit. However, both documents incorrectly indicate that he earned 5 days of conduct credit, rather than 35 days (i.e., 238 actual custody + 35 conduct credit = 273). He asks this court to correct these documents. The Attorney General responds that after Berg filed a notice of appeal from the March 13, 2025, sentencing order (in which the court imposed a five- year sentence), the trial court recalled the sentence and resentenced him on May 6, 2025, imposing a materially different sentence of five years, eight months. The Attorney General argues that this court does not have jurisdiction to correct Berg’s sentence because Berg did not appeal from the operative sentence, which was imposed May 6, 2025. (See Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743–744 [“When a judgment has been modified, an appeal must be taken . . . from the modified judgment if the change was material and substantial”].) In his reply, Berg does not dispute the change to his sentence made on May 6, 2025, was material, and he does not argue that this court has jurisdiction to correct his actual sentence. He merely argues that the earlier minute order and abstract of judgment from his March 13, 2025, sentencing should be corrected to reflect the true facts. But we see no purpose in revising documents that (1) accurately reflected the amount of total credit Berg had at the time they were filed and (2) are not the operative sentence. We therefore decline to order the correction.

29 D. Thomas’s Sentence “[A] sentence is generally ‘unauthorized’ where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is ‘clear and correctable’ independent of any factual issues presented by the record at sentencing.” (People v. Scott (1994) 9 Cal.4th 331, 354.) In this case, the Attorney General has identified that the trial court imposed an unauthorized sentence for Thomas. As we have mentioned, the trial court imposed a six-year sentence for the current crime and enhancement, and it imposed one-third middle terms for four counts in other criminal matters. As to one of those counts, the court stated, “[I]n Docket 8—589, there is a 12022.1 enhancement. The Court will run two years concurrent in that matter.” However, section 12022.1, subdivision (b), provides that “[a]ny person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court.” (Italics added.) The trial court was not authorized to impose a concurrent term for the section 12022.1 enhancement. Thomas does not address this issue in his reply. We will remand to “give the trial court an opportunity to restructure its sentencing choices in light of our conclusion that the sentence imposed” was unauthorized. (People v. Rodriguez (2009) 47 Cal.4th 501, 509–510.) DISPOSITION Thomas’s sentence is reversed, and his criminal matter is remanded to the trial court for resentencing. In all other respects, Berg’s and Thomas’s judgments are affirmed.

30 _________________________ Miller, J.

WE CONCUR:

_________________________ Stewart, P. J.

_________________________ Desautels, J.

A172971, People v. Thomas; A172861, People v. Berg