People v. Higginbotham CA1/2

Filed 10/26/26 P. v. Higginbotham CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A170751 v. MICHAEL G. HIGGINBOTHAM, (San Francisco County Super. Ct. No. CRI-16021040) Defendant and Appellant. Michael G. Higginbotham appeals from a conviction of murder with special circumstances. He contends several of the trial court’s evidentiary rulings denied him due process and a fair trial. We disagree and affirm. BACKGROUND I. Procedural Background Higginbotham was charged by information on February 15, 2019, with one count of murder (Pen. Code, § 187, subd. (a)1) with enhancements for personal discharge of a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) and causing death by discharging a firearm from a motor vehicle (§ 12022.55) and special circumstances of lying in wait and Further statutory references will be to the Penal Code except as 1 otherwise specified. 1 shooting from a motor vehicle (§§ 190.1, subd. (a)(15), (a)(21)). The information further alleged a prior conviction (§§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c), 667, subd. (a)(1)) and prison term (§ 667.5, subd. (b)) for assault on a federal officer with a deadly weapon (18 U.S.C. §§ 111(a)(1), (b)). On April 7, 2023, a jury found Higginbotham guilty and found true the special circumstance of shooting from a motor vehicle and the firearm enhancements. Following proceedings not relevant to this appeal, he filed a motion for new trial, which was denied, and was sentenced on March 28, 2024 to life without parole for the murder with a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement. Higginbotham timely appealed. II. Factual Background Jermaine Jackson Jr. was shot and killed on November 30, 2016. The People’s theory tied the murder to a longstanding conflict between two criminal street gangs, Big Block/Harbor Road (Big Block) and Westmob, Mob Stars (Westmob), Higginbotham a member of the former and Jackson, the latter. Higginbotham’s defense was that his brother committed the murder. A. Prosecution Case 1. Facts Surrounding the Murder On the morning of November 30, 2016, Jackson was working with a graffiti abatement team for the San Francisco Department of Public Works (DPW). Shortly before 8:00 a.m., Jackson got out of the truck at 25th Street and Pennsylvania Avenue and spent seven or eight minutes attending to graffiti on a pole. The team proceeded to 25th Street and Vermont Street, where Jackson was painting over graffiti when, just before 8 a.m., he was 2 shot multiple times. ShotSpotter data reflected 11 gunshots over a six-second period ending at 7:59:58:222 seconds. Jackson died from gunshot wounds to his back and thigh. Jackson’s coworkers, one in the truck across the street and the other next to it, heard the gunfire but did not see the shooting. A neighbor heard the gunfire and, looking out her window, saw a dark gray four-door sedan driving north on Vermont at a “pretty fast pace.” The driver looked “a little bit slumped back in the seat” and was wearing a dark colored sweatshirt with the hood pulled up over the driver’s head. She did not see any details of the driver’s face, skin color or gender, but assumed the driver was male based on “stature.” Previously, San Francisco Police Officer Eduard Ochoa had placed a GPS tracking device on a Chevrolet Malibu registered to Higginbotham. Data from the device showed the car was at the location of the homicide at the time it occurred. GPS data from Higginbotham’s mobile phone reflected the same locations as the tracking device. The tracking device and mobile phone data showed that the car left the area of Higginbotham’s girlfriend Mattesha White’s apartment in Vallejo at about 5:25 a.m. on the morning of November 30, drove to San Francisco and was in the area of Pennsylvania Avenue and 25th Street around 7:52 a.m. Recorded footage from a security camera showed the Malibu stopped briefly in this location and showed the DPW truck there. Video recordings from security cameras and buses in the area showed the Malibu following the DPW truck at various locations along the neighborhood streets. There was a three-second outgoing call from Higginbotham’s phone at 7:54 a.m. (a few minutes before the shooting). 3  After the shooting, the Malibu went to the Safeway parking lot at 16th Street and Potrero Avenue, where it remained for the next few hours. According to the GPS data, both the tracking device and the cell phone were in that area in the time period 8:07 a.m. to 8:11 a.m. Officer Ochoa located the car parked in a spot on the lower level of the parking lot. Search warrants were obtained for Higginbotham’s Malibu, a Kia SUV belonging to his girlfriend White and her apartment in Vallejo. Officers surveilled the apartment and arrested Higginbotham shortly after he arrived there around 5:15 p.m. in White’s Kia. Higginbotham had exited the front passenger seat and gone into the apartment for a few minutes. As he was returning to the Kia, an officer directed him to get on the ground. Higginbotham began to run but then dropped items he was holding—an iPhone and a white plastic bag—and complied with the order. The plastic bag contained a box of ammunition. Higginbotham had another box of ammunition in the pocket of his hoodie. He also had some currency, a small screwdriver, a wallet and keys to the apartment. Higginbotham sat in the police vehicle for several hours and then was transported to San Francisco. It was later determined that 11 bullets were missing from the box of ammunition. Five fired .45-caliber cartridge casings were found in the Malibu. The headstamps on the casings were the same as those on six .45-caliber casings found at the scene of the homicide.2 Testing indicated all the casings were fired from the same firearm. Headstamps are markings indicating the manufacturer of the 2 ammunition and year of manufacture, here Winchester Military Arms manufactured in 2016. 4  The only usable fingerprint found in the Malibu was Higginbotham’s. The fingerprint was on the pillar between the front and back doors on the driver’s side. The criminalist testified that other “smudges” in the car were not of sufficient quality to lift and examine. Gunshot residue samples from Higginbotham’s hands were not eligible for testing because they were collected too long after the incident: Samples must be collected within a certain amount of time because the residue particles transfer easily from one surface to another and can be lost from hands through everyday activity. One characteristic gunshot residue particle was found on each cuff of the sweatshirt Higginbotham was wearing at the time of his arrest.3 The presence of gunshot residue on clothing indicates either that the clothing was in close proximity when the gun was fired or that residue particles were transferred to the clothing, but testing cannot determine which is more likely. When received by the criminalist for testing, the sweatshirt was in a bag with other items of clothing collected at the time of the arrest. Gunshot residue testing is not quantitative; the amount found does not indicate how it came to be on the item tested. Data was extracted from Higginbotham’s cell phone, showing calls, texts, social media posts and internet searches, and Lieutenant Daniel Manning, the People’s expert on the gangs involved in this case,4 testified about his interpretation of this material. Some searches and conversations in the weeks before November 30, 2016, related to weapons and ammunition, 3 The criminalist explained that in order to report a positive gunshot residue test, the particle must contain all three of the elements characteristic of ammunition (lead, barium and antimony), as this combination of elements is rare outside of gunshot residue. 4 Manning was qualified as an expert on “San Francisco criminal street gangs, including Big Block/Harbor Road and Westmob, Mob Stars.” 5 including conversations Manning interpreted as soliciting assistance in obtaining these items.5 On November 30, at 7:54 a.m. (about six minutes before the shooting, when the Malibu was following the DPW truck), there was a three-second outgoing call from Higginbotham’s phone to a number ending in 8668; the next call associated with Higginbotham’s phone was a 64-second incoming call at 8:34 a.m., in the area of McKinnon Street, where a music studio was located.6 At 8:20 a.m., Higginbotham texted White asking for her Twitter password, which Manning believed was so Higginbotham could see if there were any reports about the murder on Twitter without logging in himself. At 8:45 a.m., Higginbotham texted another number saying, “ ‘Marley went by- bye’ ”; Manning testified that Marley was one of Jackson’s nicknames. A text 5 In a text exchange on October 24, 2016, with “Cousin Nuk” about buying weapons, Higginbotham said, “I need a hand thing bad. My n---- just got it took.” Manning testified that “hand things are criminal vernacular for a handgun.” There was a Google search on November 4 for an M17 rifle and, on November 6, a search on YouTube for a review of “Smith & Wesson SD40,” a type of weapon. On November 11, there was a search on YouTube for “HK45 Mag Drop Fix,” which Manning interpreted as referring to a problem with a weapon; he explained that HK45 is a type of semi-automatic pistol and “ ‘[d]rops the mag’ means when you are shooting the mag can be discharged from the weapon.” On November 12, Higginbotham asked “Cousin Nuk” if he had shells for a “.45,” saying he could not find them in stores. The same day, Higginbotham asked “Lil Sis” to “ ‘[a]sk her if she can go to Big 5 and get something for me. I got the money. I just can’t get it ‘cause I’m on paperwork.’ ” He asked if “she” was “over 21” and, when told no, asked if she had a friend who was over 21 who could do it. On November 12 and 13, there were internet searches for “Colt .45 bullets,” “Colt .45,” Big 5 Sporting Goods and “ ‘Ammunition, rifle, pistol, shotgun, Big 5 Sporting Goods.” Manning testified that Big 5 sells ammunition. 6 Records for Higginbotham’s phone show this call was from his brother Matthew’s number. 6 to a different number at 9:11 a.m. said, “ ‘They said that n---- is gone,’ ” a response half an hour later said, “ ‘Yeah’ ” and Higginbotham said, “ ‘Damn.’ ” At 9:20 a.m., a message from “Banga” said, “ ‘Hey, the Marley n----’s down’ ” and Higginbotham replied, “ ‘Yeah, I know.’ ” Higginbotham texted “Slugs,” “ ‘Cuz, you got to tell that n---- I wasn’t even out here. I was at work.’ ” Slugs responded, “ ‘Yep. . . . Keep n---- out of your business because you smarter than that.’ ” Higginbotham said, “ ‘I ain’t said shit to nobody.’ ” At 12:04 p.m., Higginbotham texted White that he would “ride home” with her and told her he was at Potrero, by “I Love Teriyaki,” which Manning testified was close to where the Malibu was parked. White asked why he was going with her, as he had his own car. He said, “ ‘Wow, you serious, my n- . . . My n----, you really going to sit here and do this at a time like this . . . [¶] What happened to you being a down bitch.· You ain’t supposed to be questioning me about nothing. You are supposed to just say, ‘ “okay.” ’ ” At 12:21 a.m., an incoming text commented, “ ‘Insta has been dry.’ ” Manning took this to mean no one was posting about the murder yet, explaining that in his experience, memorial pictures appear on Instagram as soon as someone is killed. Higginbotham responded, “ ‘You ain’t lookin in the right places. It’s all over that thing.’ ” The other person said, “ ‘I’m definitely jealous’ ” and Higginbotham said, “ ‘No need to be.’ ” At 1:35 p.m., Higginbotham texted “Tye,” “ ‘I need a favor . . . Need you to move my car.’ ” He told Tye the car was “ ‘by Potrero,’ ” he had the keys and would give them to Tye. A text at 4:44 p.m. from the number called from Higginbotham’s phone at 7:54 a.m. said, “ ‘The n---- saying your name now.’ ” Higginbotham asked who and the other person replied, “Tone.’ ” Manning identified Tone as Antonio Bowers, a Big Block gang member. When Higginbotham asked what 7 Tone said, the other person told him, “ ‘Somebody close to you is talking,’ ” Higginbotham said, “ ‘I don’t know who . . . ‘Cause nobody know.’ ” The incoming reply was, “ ‘Don’t say shit. I’m going to call you.’ ” Manning understood this exchange to mean someone close to Higginbotham was putting his name out as being involved in the murder and, in trying to figure out who, they were moving to a phone call for a safer way to investigate. Higginbotham later testified that the conversation was with a close friend who was no longer alive at the time of trial. The People read White’s preliminary hearing testimony into the record at trial. She testified that Higginbotham spent the night of November 29, 2016, at her apartment. No one other than Higginbotham, White and her children stayed there that night. Higginbotham was up when she was getting ready for work in the morning, and when she left at about 5:30 a.m., she saw his car warming up in front of her house. She finished work in San Franciso at 3:00 or 3:30 p.m. and picked her children up from daycare. Higginbotham called or texted her and she picked him up on Bayshore Boulevard, which she had not planned to do, then drove home. 2. Gang Evidence a. Historical Context and Background Lieutenant Manning testified that the Hunter’s Point gangs are unique in that they are specific to individual housing developments. Big Block had been a gang in Hunter’s Point for over 20 years and usually had 20 to 40 members at a given time. The gang was known for violence, shooting and killing people, which it used to instill fear in the neighborhood and to prevent people from cooperating with the police. It was allied with the Kirkwood gang and Oceola Mob. Big Block’s primary rival was Westmob, as well as the Oakdale Mob, which was Westmob’s primary ally. Westmob also had 20 to 40 8 members, and its territory was very close to Big Block’s. Westmob members had been convicted of gang murder; historically sold crack cocaine but had moved on to marijuana; and were involved in burglaries and robberies. Manning testified that the rivalry between Big Block and Westmob grew out of conflicts in the 1990s rap scene, when rapper Kyle Church was murdered over a dispute about money and contract rights. Douglas Stepney, who founded Big Block Records, had been the main leader of Big Block, but after he was incarcerated in 2000, the gang “essentially lost its structure.” According to information from an informant, in 2016 Terrence Webb was trying to establish himself in the leadership role. Manning estimated that by 2016, “close to 100 people” had been killed in the conflict between Big Block and Westmob. He testified that the rivalry had turned into a “generational war,” as the current gang members had not even been born when Kyle Church was murdered, and the majority of the shootings were retaliatory, “tit-for-tat.” He described four incidents as examples, each of which had been captured on surveillance video that was played at trial. In 2013, Big Block gang members murdered Westmob member Jaquan Rice; Manning pointed out that one of the individuals convicted of the murder, Lee Sullivan, was with Higginbotham in some of the photographs viewed at trial. In 2016, Sean Ford, a member of a gang with close ties to Westmob, was shot and killed in a club during a fight with Webb and Big Block member Charles Gardner. Manning testified that it appeared from the video Gardner was the one who shot Ford but the video was not clear and the case against Webb and Gardner was dismissed by the district attorney’s office. Manning testified that Ford was a “very popular person in the Hunters Point neighborhood” and this incident “ignited the rivalry again.” In 2017, 9 Big Block gang member Joseph Alpha-Farrah shot several rounds at Westmob member Isaac White-Carter, causing the latter to jump over a wall, fall 35 to 40 feet and break his pelvis. In November 2019, White-Carter shot a Big Block member, a Kirkwood member and a Kirkwood “associate” at Torino’s Market, a “popular place” for Big Block, Kirkwood and Oceola gang members. Manning discussed photographs showing hand signs used by the gangs and identified various Big Block members, including Higginbotham’s brother Matthew, in the photographs. He also described Westmob’s hand signs, identified gang members displaying them in photographs and described graffiti characteristic of the gang. Manning testified that historically graffiti had been the main way gang members communicated the boundaries of their territory and was also used to memorialize lost members and threaten or disparage rivals, and he discussed photographs of memorial graffiti for individuals killed in gang disputes. He testified that social media had replaced it as the primary way of “advertising who you are” and was used by gang members to antagonize and taunt each other. Rival gang members did not often see each other in person because they could not go to each other’s territory without the risk of being killed. Manning gave opinions on several hypotheticals. If a Big Block gang member lived in Big Block territory, had previously been shot several times by rivals from Westmob and Oakdale, and had phone and Instagram accounts containing discussions of gang rivalries, there would be a motive in the “ongoing war” to kill a rival gang member. If this hypothetical gang member encountered a known rival outside gang territory who appeared to be not paying attention to their surroundings and not armed, Manning would expect this to be a “perfect opportunity” to attack the rival. Both the gang 10 member’s reputation and the gang’s would be heightened by killing a rival, and not taking advantage of the opportunity would be “frowned upon.” It would “absolutely” be consistent with “an act that was gang-motivated” if the Big Block member followed the rival for about a mile from a relatively busy and public area to a more private and quieter one and fired 11 times from a vehicle. Manning testified that this hypothetical showed “a level of sophistication waiting for an opportunity—a more opportunistic time to attack somebody. It’s well-known throughout the Bayview that there is cameras initially where the victim was, but then left the area to follow a rival and wait for an opportunity—opportunistic time is a—it’s a typical thing that we see with these videos and other evidence that we’ve acquired in gang shootings.” b. Personal Connections In Manning’s opinion, at the time of the homicide Higginbotham was an active member of Big Block. His opinion was based on Higginbotham’s associations prior to the murder and his “re-emergence” in Big Block’s territory despite a court order (in effect at the time of Jackson’s murder) requiring him to stay away from San Francisco and not associate with any gang member. Manning discussed posts associated with Higginbotham’s Instagram account related to weapons and gangs. A photograph of Jovanie Banks, a murdered Big Block gang member, was significant as an example of Higginbotham “posting deceased gang members in the same gang.” A photograph posted on September 15, 2016, showed Higginbotham in Big Block territory with Aaron Cox, who was “throwing” a hand sign associated with Big Block, and Lee Sullivan, who had been convicted of murdering a Westmob member. In another photograph, Higginbotham was wearing a 11 “ ‘memorial shirt’ ” for Kevin Hall, a murdered Big Block member. Another, posted on August 23, 2016, showed Higginbotham with Cox and James Mayes, another deceased Big Block gang member, who was throwing the gang sign. Manning testified about various direct messages between Higginbotham and Cyril Hannah, a Kirkwood gang member who was in jail, which Manning described as reflecting “gang innuendos and vernacular.” Examples included “talking smack” about rival gang members and discussing rivals taunting each other, threats and use of violence, and past or potential murders. Manning testified about another social media account connected to Higginbotham called “touchdown_and_caused_hell,” explaining, “Touchdown means you’re back, like a plane touches down, you’ve come back. It was the same time Mr. Higginbotham came back.” On cross examination, Manning acknowledged he was not aware that a popular rapper, Lil Boosie, had an album called “Touchdown to Cause Hell” and did not do any research before giving his opinion on the meaning of the phrase. Manning identified photographs reflecting gang connections—for example, Higginbotham with Webb and other Big Block members, including Matthew; Higginbotham simulating “shooting the rivals[’] hand signs”; Higginbotham and others throwing Big Block gang signs; and Higginbotham in what appeared to be memorial pictures for Kevin Hall. Manning also identified pictures of Jackson on Higginbotham’s phone, as well as pictures of other individuals Manning identified as Westmob or Oakdale members. Manning also discussed photographs of Higginbotham’s tattoos that were taken when he was arrested. These included tattoos on the back of Higginbotham’s shoulders saying “Big” on one side and “Block” on the other; semiautomatic pistols on his chest and bullets on either side of his shoulder; 12 an “engine block with . . . arms,” which Manning said was artwork for Stepney Big Block Records that had been adopted to represent the gang; a memorial tattoo for Kevin Hall; “HRD,” an acronym for Harbor Road; “Block Monster,” explained by Manning as a reference to someone “dominant on the block”; and “the hard hitter,” which Manning said referred to “hitters” being “people who shoot people.” On cross examination, Manning acknowledged the tattoo said “Hard Hitta,” and the term “hard hitter” or “hard hitta” is used in a wide variety of contexts having nothing to do with violence. Manning testified that Higginbotham’s younger brother Matthew had been an active Big Block member. Matthew was shot and killed in July 2018, and Big Block member Terrance Webb and Gale Joseph Young were convicted of murdering the person who had killed Matthew. Manning testified that Jackson was an active Westmob member at the time of his death. Manning knew Jackson “pretty well”; he had known Jackson since he was young and had prior contacts with him and family members. Jackson was “always” in Westmob or West Point territory and typically with members of Westmob. Manning had observed Jackson’s activities as part of police surveillance investigating Westmob and had monitored social media related to him. He described photographs showing Jackson’s associations with Westmob members. Jackson was trying to make a career in rap music and had many videos on YouTube. Manning testified that one of these, shown at trial, showed Jackson was an active member of Westmob because it was shot in locations where no one who was not associated with Westmob would be filming, others in the video were Westmob and Oakdale members and the lyrics referred to murdered gang members. In another video, Jackson and others were throwing hand signs, again in 13 locations in Westmob territory, with lyrics about shooting rivals and references to gang symbols throughout. On cross examination, Manning acknowledged that Jackson was “a particular target for violence” due to his appearances in rap videos and many years of active involvement in gang violence, and it was “definitely possible” that any member of a rival gang to Westmob, that is, “well over 100 people,” would have motivation to hurt or kill Jackson. Manning had no information indicating Higginbotham had any other motive for killing Jackson and had not seen any indication on social media of Jackson saying anything about Higginbotham or of anyone taking credit for killing Jackson.7 Manning opined Higginbotham would have wanted to kill Jackson just because Jackson was a notorious member of a rival group. Manning assumed any targeting or shooting of a gang member to be gang related unless proven otherwise but acknowledged a gang member could be involved in violence that had nothing to do with a gang. In 2009, Higginbotham was one of the victims in a shooting related to the gang feud in which the identified shooter was Desean Atchan. Toney Chaplin, the Hayward Chief of Police and previously a San Francisco police officer in the gang unit, testified that Atchan was a friend of Jackson’s. Chaplin testified about his interviews of Higginbotham while investigating 7 Defense counsel showed Manning an Instagram direct message Higginbotham sent on November 30 to Dominick Parella, a member of Westmob who was a close friend of Jackson’s, denying involvement in the shooting. When counsel suggested this was the opposite of the taking credit that Manning had said would be expected in a gang killing, Manning acknowledged he had not seen other messages like this but said it was “definitely misinformation” because Higginbotham said he had been at work all day, outside the city, and “we all know he was in the city that day and he wasn’t at work.” 14 that shooting, and portions of the interviews were played at trial. Higginbotham told Chaplin he did not know the shooter was from West Point (which Chaplin testified was synonymous with Westmob) until afterward; he mentioned Atchan by nickname in connection with the incident but was not willing to identify him and said he did not know his real name. Chaplin discussed with Higginbotham how Higginbotham became involved in the gang conflict, and Higginbotham “indicated he had been shot multiple times by Westmob and their affiliate mob gang, who were frequently doing driveby shootings in that particular neighborhood.” B. Defense Case 1. Higginbotham’s Testimony Higginbotham testified that he did not kill Jackson. His defense at trial was that his younger brother shot Jackson while borrowing Higginbotham’s car. Higginbotham grew up in Bayview-Hunter’s Point. He met Jackson in elementary school. Children from all over Hunter’s Point went to school together and no one asked where you were from, but this changed in middle school. Higginbotham initially tried to avoid questions about where he was from but people started fighting with him and he eventually identified himself with Harbor and thereby gained protection. Higginbotham met Mattesha White when he was 18 and they had a child who was born in 2010. In November 2016, Higginbotham was living with White, their son and her other child in Vallejo. Higginbotham was working at two part-time jobs, one at the Center for Employment Opportunities (CEO) on International Boulevard in Oakland and the other as a seasonal driver’s helper delivering packages for UPS in San Francisco. 15  Higginbotham testified that several tattoos on his arm were of his family—the words “Mattesha . . . Forever my love,” “God’s greatest gifts” with a portrait of his son and one of White, his mother in a heart with a crown on top and the words, “The queen of my heart.” Tattoos of dates referred to the dates he and White “got together” and his son was born. He got his tattoos when he was 19, 20 and 21 years old and considered them “sacred” and “very personal,” representing the things he had been through and survived. Tattoos saying, “Fear no man,” “Only the strong survive” and “Hard life” referred to surviving the struggles of growing up where he did. One tattoo said “Harbor” with a picture of a building in his neighborhood and an “engine” that was a “mascot” or symbol of the neighborhood that had been created by older people when he was a kid. “Big Block” was a nickname for his neighborhood. Higginbotham testified that he was proud of where he came from; his childhood friends were still his friends and the neighborhood was home. He had a tattoo for a very close friend, Kevin, who had passed away. “Block Monster” was “just because”—words they used to say growing up but did not have any particular meaning. “Hard hitta” was in part a reference to Lil Boosie, the rapper who Higginbotham explained was “kind of like a poster child of our life, how we grew up, our little culture community,” “touched people’s souls” and was a “hard hitta of his camp,” and in part a reference to being called “hard hitta” for hitting hard when he learned to box and also to “going hard” at life. Lil Boosie’s album, “ ‘Touchdown and Cause Hell,’ ” was the source of the name for Higginbotham’s Instagram account. Regarding the 2009 shooting, Higginbotham testified that he had gone to the school to pick up his cousin and saw a person he’d fought with three years earlier; he did not know the person’s name or that he was from West 16 Point. Higginbotham did not have lasting problems from his injuries and did not hold a grudge against the person. Higginbotham acknowledged he was convicted of felony assault in 2010, which made it illegal for him to purchase firearms or ammunition. He testified this was why he was asking others to obtain ammunition for him. The texts and internet searches in October and November 2016 were because he wanted to buy bullets for his brother Matthew, who was living in Hunter’s Point and needed to protect himself.8 The message saying he needed a “hand thing” was about trying to get a gun for Matthew, who had lost his. Higginbotham did not get a gun but got a box of .45-caliber bullets from his cousin—Cuz Nuk (Vincent)—which he gave to Matthew on Thanksgiving when the family got together in Vallejo. Matthew brought the bullets into the house in a plastic bag; Higginbotham told him to put them away before people came into the living room and Matthew put the bag under the couch. Later that day, his cousin Vincent gave Higginbotham another box of bullets. He intended to give these to Matthew the next time he saw him but did not. The internet search for “M17” referred to a paintball gun. On November 29, 2016, Higginbotham drove his Chevy Malibu from Vallejo to San Francisco and started work for UPS around 10 a.m. After work, he went to a music studio on McKinnon Street in the Bayview, where he and his friends hung out. Several people he knew were there and another, Tommy Thompson, arrived. Matthew texted to ask who was there and ended up coming in, saying he had been arguing with “his girl” and needed to leave. On cross examination, Higginbotham acknowledged the last text from 8 The parties stipulated that in 2016 Matthew was legally prohibited from owning, using or possessing any firearm or ammunition until age 30 due to a prior adjudication. Matthew turned 22 on August 2, 2016. 17 Matthew before Matthew arrived said, “ ‘Tell everybody I said what’s poppin. Love you n----s. Be SAFE.’ ” After a couple of hours, Higginbotham and Matthew drove to Vallejo. Matthew asked to borrow Higginbotham’s car, and Higginbotham was going to loan it to him the next day. No one was awake when they got to the apartment. On the morning of November 30, Higginbotham got up around 5:00 a.m. to go to work at CEO and then to meet Terance Webb before going to his other job in San Francisco. Webb was like a big brother or mentor to him. Contrary to Manning’s testimony, Higginbotham denied Webb was a leader of Big Block/Harbor Road and testified he was “just an older guy” whom “everybody loved.” He testified Webb wanted to stop violence in the community and tried to keep the peace. White also got up early on November 30 and saw Matthew in the living room. Higginbotham and Matthew left in the Malibu and went to Higginbotham’s workplace in Oakland, then around 7:00 a.m. went to Burger King and drove to San Francisco, where Higginbotham planned to meet Webb. Higginbotham was playing music on YouTube on his phone, which was in the cup holder; he had taken off the screen lock as he always did while driving to avoid having to put in his code to use the phone. He had another phone with him, a “free Obama phone” he could use for calls and texts, which he used to call Webb so he could keep listening to music on his other phone.9 Higginbotham had arranged to meet Webb at 25th and Third Streets, near a gas station. He got off the freeway at 25th Street, drove toward Third and Phone records show many outgoing calls from Higginbotham’s main 9 number during the drive to San Francisco. 18 stopped about a block from the gas station. He got out and Matthew moved into the driver’s seat to take the car. Webb picked Higginbotham up and they went to the music studio. Thompson was the only one there. Webb received a FaceTime call from Higginbotham’s phone, and Higginbotham realized he must have left his phone in his car. When Webb answered the call, Matthew said, “ ‘Come pick me up.’ ” Higginbotham testified this was weird since Matthew had his car but could see from Matthew’s face something was wrong. He and Webb went to get Matthew inside the garage at the Safeway on Potrero. Matthew was very nervous and “amped up” and said he had just shot Marley. Higginbotham was shocked. At first he was mad about Matthew doing this in his car but then he started to worry about Matthew and how to make sure “this not come back on him.” Matthew returned Higginbotham’s phone but not the key to his car. They drove back to the studio; Matthew went inside and Higginbotham and Webb left. Matthew did not say why he shot Jackson. At about 8:45 a.m., Higginbotham texted his friend Lester, “Marley went bye-bye,” to let him know what happened. He did not mean anything by this phrasing; it was just how he and Lester talked to each other. Higginbotham testified that when something like this happens, everyone tries to stay inside and “out the way” in fear of retaliation. Word travels fast on social media and in calls and texts. Higginbotham did not tell anyone about Matthew’s involvement because he wanted to protect him.10 Higginbotham asked White for her Twitter password so he could see what was being said since he did not have his own account. In the texts with 10 Higginbotham testified his text to Dominick Parella was to let Parella know he was not involved because it was “going around that the police [were] saying my name.” He said he was at work that day to convince Parella he was not involved in the shooting. 19 White, he said he would go home with her and she questioned why, since he had his own car. He was frustrated with her questions because she knew his car had been involved in the shooting, and he didn’t want anything to do with it. He asked several people to move his car because he didn’t want to leave it where someone could see and report it but didn’t want to deal with it personally. His text exchange with Slugs saying he “wasn’t even out here” wasn’t about the shooting; it was about someone Higginbotham owed money. When Lester texted he was jealous and Higginbotham said there was no need to be, he was saying they were not involved—“we not on the shit that’s going on. Like, we both got kids and working and doing our family thing. We wasn’t . . . running the streets and doing all of that type of shit.” Higginbotham was referring to his life in 2016 having changed from what it was in 2009: “I got older. I had a kid. I had responsibilities. I had to take care of my kid. I couldn’t be up to no good. I had to do something with my life. I had to set an example for my son.” As Higginbotham was going back to Vallejo with White on November 30, he remembered the bullets Matthew had left at the apartment on Thanksgiving. White was planning to go to “Wing Stop,” so Higginbotham asked her to stop at home for him to use the bathroom. She double-parked while he went inside and found the two boxes of bullets. When he came outside, he was detained by the police. In the interview, Higginbotham did not tell police Matthew was involved because he did not want to get his brother in trouble. He did not exercise his right to remain silent because he didn’t think he’d be arrested; he thought he could “tell[] them what I told them” and they would let him go. He testified he did not plan to tell anyone that Matthew shot Jackson and even after Matthew was killed did not immediately decide to reveal what 20 happened. However, he acknowledged he told White on the day of the shooting. On cross examination, Higginbotham acknowledged a number of texts he sent White referring to being the target of violence on the streets.11 He denied these concerned returning to his old life, testifying that the texts were lies he was telling because he was not living with White at the time and trying to get her to let him come back. He testified that messages to White’s cousin saying White did not care that his life was at risk on the streets were lies meant to make White feel bad for not letting him into the house. He acknowledged that he and White were having a “pretty serious argument” on November 28 and 29, 2016, she said she was kicking him out, and he did not tell her he was going to bring Matthew with him to the apartment on November 29. Higginbotham further acknowledged that, despite his testimony that his primary objective during his police interview on November 30 was to protect Matthew, he told the officer the person in his car was a family member. He lied when he told UPS on November 30 that he could not get to work because he had to take his son to the emergency room and told his supervisor in Oakland that he had gone to the hospital because his best friend was killed that morning. 11 On July 24, 2016, he texted, “ ‘I got in a fucking shootout, blood. [¶] . . . [¶] . . . You didn’t even ask if I was okay.’ ” In late July and early