People v. Pratt CA2/7 ( 2022 )

Filed 1/11/22 P. v. Pratt CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306017
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA073799)
v.
LATRELL PRATT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed with
directions.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Scott A. Taryle, Supervising Deputy Attorney General,
and Daniel C. Chang, Deputy Attorney General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted Latrell Pratt of murder and possession of a
firearm by a felon and found true the allegation he personally
and intentionally discharged a firearm causing the death of Israel
Castaneda. The trial court sentenced Pratt to 25 years to life,
plus 25 years to life for the firearm enhancement.
Pratt argues the trial court erred in denying his motion
under Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712,
90 L.Ed.2d 69] and People v. Wheeler (1978) 22 Cal.3d 258(commonly referred to as a Batson/Wheeler motion), admitting
certain expert witness testimony, and imposing the firearm
enhancement under Penal Code section 12022.53, subdivision (d),
without exercising its discretion under section 12022.53,
subdivision (h), to impose a lesser firearm enhancement.1 We
agree with Pratt’s last contention, direct the trial court to
exercise its discretion whether to impose a lesser firearm
enhancement, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pratt Shoots and Kills Castaneda
One night in March 2018 Robert Ordaz went to a liquor
store in a strip mall on 47th Street in Palmdale where he went
every day to buy a beer and a lottery ticket. Ordaz spoke briefly
to Castaneda, who also frequented the mall, outside the liquor
store. Castaneda “did a little laugh” and approached someone in
a parked car. The car left the parking lot, and Ordaz saw
1 Undesignated statutory references are to the Penal Code.
2
Castaneda get into a “confrontation” with a Black man outside
the mall. Ordaz had seen the man “hundreds of times,” but did
not know him. The man wore a dark shirt and dark jeans with a
white pattern on the back pockets and had “messed up corn
rows.” After arguing for less than two minutes, the man in dark
jeans left the mall, but returned five or 10 minutes later.
Meanwhile, Ordaz got a hamburger from a fast food
restaurant in the mall and returned to the liquor store. As he left
the liquor store the second time, Ordaz saw the man in dark
jeans summon Castaneda to an unlit area of the parking lot
40 feet from Ordaz. Ordaz heard gunshots and saw “the flash of
the gun.” Castaneda walked toward Ordaz and fell. Ordaz did
not see the face of the shooter, who ran away.
Donyeld Bowen also saw Castaneda talking to a man as
Bowen went into the liquor store. Bowen described the man as
slim and tall, mid- to late-20s, Black or Hispanic, with braids
that looked “like they needed to be redone” down to the back of
his neck. Bowen said the man wore blue jeans, a black shirt, a
dark beanie or hoodie, and black or black-and-white tennis shoes.
As Bowen left the liquor store, he saw the man shoot Castaneda
three times and run away. Castaneda died of his injuries.
B. The Sheriff’s Department Investigates the Shooting
Los Angeles County Sheriff’s detectives responded to the
scene of the shooting and obtained surveillance video from
several establishments, including the liquor store and a bakery
next door. The bakery’s surveillance camera captured some of
the parking lot outside the liquor store. Videos taken close in
time to the shooting showed a man wearing dark jeans with a
white design on the back pockets talking to Castaneda, who was
3
wearing a light colored shirt. The man in dark jeans wore them
so low on his hips that he stepped on the bottom hems as he
walked.
Sheriff’s detectives interviewed Ordaz and Bowen about the
shooting, showed them the surveillance videos, and asked them if
they recognized anyone in the videos. Ordaz told detectives the
person he saw wearing dark jeans and talking to Castaneda the
night of the shooting was the same person who appeared in the
videos. Ordaz did not recognize the man’s face, but said the
man’s clothing was the same. Bowen said the clothes he saw on
the person in the videos were the same clothes he described to
Sheriff’s deputies worn by the shooter.2
Detectives also interviewed Anjad Al Saddi, the owner of
the liquor store, who was working in the back of the store at the
time of the shooting.3 Detectives showed Saddi a picture of the
person Ordaz and Bowen identified from surveillance videos as
the shooter, and Saddi said the person used to be a “regular,” but
Saddi did not know his name. Saddi recalled he once kicked the
man out of the liquor store for stealing. Saddi said he saw the
man near the bakery the night of the shooting wearing a beanie
and talking to Castaneda. Saddi told detectives the man’s
2 Ordaz and Bowen testified reluctantly at trial and either
denied telling detectives they recognized the person in the
surveillance videos as the shooter or said they could not recall
saying that. The People introduced recordings of Ordaz’s and
Bowen’s interviews with Sheriff’s detectives, as well as
transcripts of those interviews.
3 Saddi testified at trial, and the People played the recording
of Saddi’s interview with Sheriff’s detectives for the jury.
4
mother was also a regular customer, and she drove a silver car
manufactured by a Korean company. Saddi agreed to tell the
detectives the next time the man’s mother came into the store,
and when he did, detectives obtained the license plate number for
the silver car. In a separate interview detectives showed Saddi a
six-pack photographic lineup that included a picture of Pratt.
Saddi identified Pratt as the person he saw the night of the
shooting outside the bakery.
Detectives used the license plate number of the silver car to
obtain an address for Pratt’s mother. Detectives executed a
search warrant on that property, where Pratt also lived. Inside
Pratt’s bedroom, detectives found a pair of dark blue jeans with a
white design on the back pockets and torn hems, a pair of black
gloves, a beanie, a black vest, and a black sweatshirt. Gunshot
residue tests identified particles consistent with or characteristic
of gunshot residue on the front thigh area of the jeans, the
sweatshirt, and one of the gloves.
Detectives arrested Pratt and seized his cell phone. Data
extracted from the phone showed someone used it to search
various “most wanted” lists and to view an article on a news
website with the headline “Suspect Sought in Fatal Shooting of a
Man in Palmdale.” The phone also had been used for a search
query including the terms “Palmdale,” “homicide,” and “47th.”
C. A Jury Convicts Pratt of Murder, and the Trial Court
Sentences Him
The People charged Pratt with murder (§ 187, subd. (a))
and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The
People alleged Pratt personally used a firearm, within the
meaning of section 12022.53, subdivision (b); personally and
5
intentionally discharged a firearm, within the meaning of section
12022.53, subdivision (c); and personally and intentionally
discharged a firearm causing great bodily injury or death, within
the meaning of section 12022.53, subdivision (d). The People also
alleged Pratt had served two prior terms within the meaning of
section 667.5, subdivision (b).
On the People’s motion, the court at trial struck the firearm
allegations under section 12022.53, subdivisions (b) and (c). The
jury convicted Pratt on both counts and found true the allegation
he personally and intentionally discharged a firearm causing
great bodily injury or death, within the meaning of section
12022.53, subdivision (d). On the murder conviction, the trial
court sentenced Pratt to a prison term of 25 years to life, plus 25
years to life for the enhancement under section 12022.53,
subdivision (d). On the conviction for possession of a firearm by a
felon, the court imposed and under section 654 stayed execution
of a three-year prison term. The court struck the enhancement
under section 667.5, subdivision (b), because it no longer applied.4
Pratt timely appealed.
4 The trial court sentenced Pratt in April 2020. Senate Bill
No. 136, effective January 1, 2020, amended section 667.5,
subdivision (b), by limiting the applicability of the one-year prior
prison term enhancement to defendants who served a prior
prison sentence for a sexually violent offense, as defined in
Welfare and Institutions Code section 6600, subdivision (b).
(Stats. 2019, ch. 590, § 1; see People v. Griffin (2020)
57 Cal.App.5th 1088, 1092, review granted Feb. 17, 2021,
S266521; People v. Shaw (2020) 56 Cal.App.5th 582, 588.)
6
DISCUSSION
A. The Trial Court Did Not Err in Denying Pratt’s
Batson/Wheeler Motion
1. Relevant Proceedings
The trial court gave 49 prospective jurors, including six
Black prospective jurors, a questionnaire. The questionnaire
sought primarily personal information, such as the prospective
juror’s job, marital and family status, and previous jury
experience. The court questioned each prospective juror about
his or her responses to the questionnaire before allowing the
attorneys 20 minutes to question the jurors.
Prospective Juror No. 8380 was a single Black woman who
worked as a phone operator for a large retail company.5 She told
the court she had one adult son, who was getting a medical
degree in psychiatry, and three adult daughters, who worked for
a delivery service, for Medicare, and as a preschool teacher,
respectively. Prospective Juror No. 8380 had lived in the area for
19 years. None of Prospective Juror No. 8380’s responses to the
court’s questions prompted any concerns from the court. The
court ended its questioning of Prospective Juror No. 8380 by
stating, “Excellent. Very glad to have you.”
5 During voir dire Prospective Juror No. 8380 was also
referred to as Prospective Juror No. 14 and Prospective Juror
No. 9, after she moved into the first Prospective Juror No. 9’s
seat. To avoid confusion, we will refer to her as Prospective Juror
No. 8380.
7
After questioning the prospective jurors individually, the
trial court questioned them as a group. The court asked the
prospective jurors to raise their hand if they had an affirmative
response to any of the questions. The questions sought to elicit
biases and to identify prospective jurors who would not be able to
follow the court’s instructions on the law or keep an open mind
until the end of the trial. Prospective Juror No. 8380 did not
raise her hand in response to any of the questions the court posed
to the group.
Counsel for Pratt asked the group of prospective jurors
questions about their ability to keep an open mind throughout
the trial. None of the prospective jurors raised his or her hand to
indicate he or she could not be “a fair, open-minded juror.” The
prosecutor asked the group questions about circumstantial
evidence. She selected several individual jurors to ask questions
or pose hypotheticals. The prosecutor asked Prospective Juror
No. 8380 whether she could “vote guilty” on a charge for driving
under the influence if the People proved only that the defendant
had a blood alcohol content of .08 percent or above, but not the
defendant’s specific blood alcohol content, what the defendant
had drunk, or where the defendant was going when stopped.
Prospective Juror No. 8380 replied yes.
The prosecutor used her first two peremptory challenges to
ask the court to excuse a Hispanic man and a White man. The
prosecutor used her third peremptory challenge to ask the court
to excuse Prospective Juror No. 8380. Counsel for Pratt
immediately made a Batson/Wheeler motion, arguing the People
had exercised a peremptory challenge against one of only two
Black prospective jurors in the first panel of 12. The trial court
observed there were four other Black prospective jurors in the
8
jury pool, which at that time comprised 44 people. The court
found Pratt failed to make a prima facie showing the People used
their peremptory challenge “for improper purposes in light of
their peremptories thus far.” The court then “invite[d] the
prosecution to state the grounds and neutral reasons for excusing
[Prospective Juror No. 8380] if they would like to do that to
preserve [the record for appeal].”
The prosecutor stated she excused Prospective Juror
No. 8380 because she had “observed her walk into court since
early yesterday, and [she] often [saw] her looking toward the
defendant with very sympathetic looks.” The prosecutor
continued: “I don’t know—she hasn’t said anything. She [was]
not very vocal during voir dire; however, given the—I wouldn’t
say constant but frequent kind of gazes towards the defendant,
kind of what I would describe in a sympathetic way, and we chose
to use our peremptory challenge.”
The court acknowledged that Prospective Juror No. 8380
was “an older African American woman” and that the defendant
was “a younger man, probably the age of her grandchildren, if she
has grandchildren.” The court denied the motion, stating: “As I
indicated, the defense has failed to make a prima facie case
because they failed to raise a reasonable inference of exclusion
based on membership of the cognizable group. [The] defense has
stated only the excused jurors are a member of the cognizable
group . . . .”
Counsel for Pratt argued Prospective Juror No. 8380 “said
nothing during voir dire to justify her exclusion, and the
prosecutor did not inquire of her during voir dire. They felt she
was not vocal . . . .” The trial court stated, “The court did note
that there [are] approximately six African Americans in the panel
9
that we’re working with when we started the peremptory process.
There [are] still five remaining . . . . The People have excused
[one Hispanic, one White, and one Black prospective juror.] . . .
I didn’t personally observe the looks toward the defendant, but
she is an elderly woman. The defendant is [a] young man,
probably the age of her grandchildren if she had them, and I don’t
find that there was a basis or prima facie showing being made,
and the People have . . . made a record should the appellate court
disagree with me . . . . The court does believe that the defense
has not met its burden of establishing that the motion should be
granted, and the reasons offered by the prosecution I find to be
credible under the circumstances in this case.”
After excusing Prospective Juror No. 8380 the People
excused one more prospective juror, whose race and ethnicity are
unknown. The jury that eventually convicted Pratt included at
least one Black juror.
2. Applicable Law and Standard of Review
A “‘prosecutor, like any party, may exercise a peremptory
challenge against anyone, including members of cognizable
groups. All that is prohibited is challenging a person because the
person is a member of that group.’” (People v. Hardy (2018)
5 Cal.5th 56, 78; see People v. Smith (2018) 4 Cal.5th 1134, 1146
[“‘a party may exercise a peremptory challenge for any
permissible reason or no reason at all’”].) “Both the United
States and California Constitutions prohibit the exercise of
peremptory strikes on the basis of race or ethnicity.” (People v.
Battle (2021) 11 Cal.5th 749, 772 (Battle); see People v. Reed
(2018) 4 Cal.5th 989, 999.) Courts follow a three-step process in
ruling on a Batson/Wheeler motion. (Battle, at p. 772; Reed, at
10
p. 999.) “When a party opposing a peremptory strike makes a
prima facie case that the strike was motivated by impermissible
discrimination (step 1), the proponent of the strike must offer a
nondiscriminatory reason for that challenge (step 2). [Citation.]
The question then becomes (step 3) whether the opponent of the
peremptory challenge has shown it “‘more likely than not that the
challenge was improperly motivated.’”” (People v. Baker (2021)
10 Cal.5th 1044, 1071; see Battle, at p. 772; People v. Miles (2020)
9 Cal.5th 513, 538.)6
“[W]here (1) the trial court has determined that no prima
facie case of discrimination exists, (2) the trial court allows or
invites the prosecutor to state his or her reasons for excusing the
juror for the record, (3) the prosecutor provides
nondiscriminatory reasons, and (4) the trial court determines
that the prosecutor’s nondiscriminatory reasons are genuine, an
appellate court should begin its analysis of the trial court’s denial
6 The Legislature recently enacted legislation that
significantly modifies the Batson/Wheeler framework. (See Code
Civ. Proc., § 231.7, subd. (e).) Among other things, the new law
essentially eliminates the requirement of making a prima facie
case (id., subd. (c)) and identifies certain reasons for peremptory
challenges, including that the prospective juror “exhibited either
a lack of rapport or problematic attitude, body language, or
demeanor,” as “historically . . . associated with improper
discrimination in jury selection” (id., subd. (g)(1)(B)). The new
legislation does not apply to this appeal, however, because it
applies to trials “in which jury selection begins on or after
January 1, 2022.” (Id., subd. (i); see generally Battle, supra,
11 Cal.5th at p. 776, fn. 9 [because Code of Civil Procedure
section 231.7 “has not yet taken effect,” it “offers us no occasion to
revisit . . . our Batson/Wheeler jurisprudence”].)
11
of the Batson/Wheeler motion with a review of the first-stage
ruling. [Citations.] If the appellate court agrees with the trial
court’s first-stage ruling, the claim is resolved. If the appellate
court disagrees, it can proceed directly to review of the third-
stage ruling, aided by a full record of reasons and the trial court’s
evaluation of their plausibility.” (People v. Scott (2015)
61 Cal.4th 363, 391; see People v. Krebs (2019) 8 Cal.5th 265,
289-290 [“if the trial court makes a first-stage ruling before the
prosecutor states his or her reasons for excusing the prospective
jurors, an appellate court reviews that first-stage ruling”].)
Whether a defendant has established a prima facie case by
demonstrating the totality of the relevant facts gives rise to an
inference of discriminatory purpose “depends on consideration of
the entire record of voir dire as of the time the motion was made.”
(People v. Scott, supra, 61 Cal.4th at p. 384; accord, People v.
Silas (2021) 68 Cal.App.5th 1057, 1096; see Battle, supra,
11 Cal.5th at p. 773 [“We examine the entire record before the
trial court to determine whether it supports an inference of such
group bias.”].) “[C]ertain types of evidence may prove
particularly relevant. [Citation.] Among these are that a party
has struck most or all of the members of the identified group from
the venire, that a party has used a disproportionate number of
strikes against the group, that the party has failed to engage
these jurors in more than desultory voir dire, that the defendant
is a member of the identified group, and that the victim is a
member of the group to which the majority of the remaining
jurors belong.” (Scott, at p. 384; accord, Battle, at p. 773; Silas, at
p. 1096.) “[T]he fact that the prosecutor volunteered one or more
nondiscriminatory reasons for excusing the juror is of no
12
relevance at the first stage.” (Scott, at p. 390; see Silas, at
p. 1096.)
We review a first-stage ruling under Batson/Wheeler for
substantial evidence. (Battle, supra, 11 Cal.5th at p. 772; People
v. Silas, supra, 68 Cal.App.5th at p. 1095.) “In conducting our
review, we remain mindful of the ‘low threshold’ showing
required for Batson’s first step. [Citation.] This step should not
‘be so onerous that a defendant would have to persuade the
judge—on the basis of all the facts, some of which are impossible
for the defendant to know with certainty—that the challenge was
more likely than not the product of purposeful discrimination.’
[Citation.] It is satisfied simply by evidence sufficient to permit
us to draw an inference that discrimination may have occurred.”
(Battle, at p. 773.) “In establishing a prima facie showing, a
defendant has the burden of demonstrating that the facts and
circumstances of the case raise an inference that the prosecutor
excluded prospective jurors based on race.” (People v. Streeter
(2012) 54 Cal.4th 205, 223; see People v. Rhoades (2019) 8 Cal.5th
393, 430, fn. 15 [“it was defendant’s burden to make the record
necessary to support his motion”]; People v. Jones (2013)
57 Cal.4th 899, 916 [moving party has the burden to “‘“make as
complete a record as feasible”’” to support a prima facie
showing].)
3. Substantial Evidence Supported the Trial
Court’s Ruling Pratt Failed To Make a Prima
Facie Case
Pratt argues he made a prima facie showing of
discriminatory motive because the prosecutor challenged one of
13
only two Black jurors in the initial panel of 12 prospective jurors.7
Substantial evidence supported the trial court’s ruling.
In Battle, supra, 11 Cal.5th 749 a Black defendant
challenged the removal of a Black prospective juror after the
prosecutor exercised peremptory challenges against two of three
Black prospective jurors who “entered the [jury] box.” (Id. at
pp. 769-770.) The prosecutor “used two of his 11 peremptory
challenges (18 percent) on Black prospective jurors, even though
they comprised only 8.13 percent of the prospective jurors
overall.” (Id. at p. 770.) The jury that eventually convicted the
defendant of murder was all White with one Black alternate
juror, and the victims were White. (Id. at p. 771.) The Supreme
Court acknowledged “the salient racial issues at play [were]
significant,” but held that, “standing alone, these factors are not
7 Pratt argues his prima facie case is bolstered by the fact
that two of the three jurors excused by the People were “minority
jurors.” Because this was not a basis for Pratt’s Batson/Wheeler
motion in the trial court, Pratt forfeited that argument on appeal.
(See Battle, supra, 11 Cal.5th at p. 776; People v. Booker (2011)
51 Cal.4th 141, 167.) In any event, the record shows Prospective
Juror No. 9—the Hispanic prospective juror the People
challenged—told the court his grandfather was arrested and
treated unfairly by law enforcement because he was “brown-
skinned.” It was not unreasonable for the prosecutor, under the
law at the time, to exercise a peremptory challenge against a
prospective juror who expressed such a potential bias against law
enforcement officers. (See People v. Rhoades, supra, 8 Cal.5th at
p. 431 [“when the record of a prospective juror’s voir dire or
questionnaire on its face reveals a race-neutral characteristic
that any reasonable prosecutor trying the case would logically
avoid in a juror, the inference that the prosecutor was motivated
by racial discrimination loses force”].)
14
dispositive” of whether the defendant made a prima facie case of
discriminatory motive. (Id. at pp. 774-775.) The Supreme Court
discounted the prosecutor’s disproportionate strike rate against
Black prospective jurors because the “small sample size
introduce[d] uncertainty into the analysis and severely limit[ed]
the value of the data.” (Id. at p. 775; see id. at p. 785 [“The small
sample size of strikes against Black prospective jurors, and the
fact that [the defendant] challenges the excusal of only one such
juror, severely undercuts any inference we can draw from the
statistical evidence he presents.”].) The Supreme Court cited its
prior statements that, “‘[a]lthough circumstances may be
imagined in which a prima facie case could be shown on the basis
of a single excusal, in the ordinary case . . . to make a prima facie
case after the excusal of only one or two members of a group is
very difficult.’” (Id. at p. 776; accord, People v. Bell (2007)
40 Cal.4th 582, 598, fn. 3, disapproved on other grounds in People
v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; see People v.
Woodruff (2018) 5 Cal.5th 697, 750 [“‘[w]hile the prosecutor did
excuse two out of three [Black prospective jurors], the small
absolute size of this sample makes drawing an inference of
discrimination from this fact alone impossible’”]; People v. Parker
(2017) 2 Cal.5th 1184, 1212 [“‘“‘As a practical matter, . . . the
challenge of one or two jurors can rarely suggest a pattern of
impermissible exclusion.’”’”]; People v. Harris (2013) 57 Cal.4th
804, 835 [“the small number of African-Americans in the jury
pool makes ‘drawing an inference of discrimination from [the
exclusion of two of three prospective African-American jurors]
impossible’”].)
Other evidence in Battle weakened the defendant’s prima
facie showing, including that the prosecutor accepted a jury that
15
included a Black prospective juror (until counsel for the
defendant exercised a peremptory challenge against him) and a
Black alternate juror. (See Battle, supra, 11 Cal.5th at p. 777.)
“‘[U]ltimate inclusion on the jury of members of the group
allegedly targeted by discrimination indicates “‘good faith’” in the
use of peremptory challenges, and may show under all the
circumstances that no Wheeler/Batson violation occurred.’”
(Battle, at p. 777; accord, People v. Garcia (2011) 52 Cal.4th 706,
747-748; see People v. Reed, supra, 4 Cal.5th at p. 1000 [“While
acceptance of one or more black jurors by the prosecution does
not necessarily settle all questions about how the prosecution
used its peremptory challenges, these facts nonetheless help
lessen the strength of any inference of discrimination that the
pattern of the prosecutor’s strikes might otherwise imply.”].)
As in this case, the prospective juror at issue in Battle “had
much to commend her.” (Battle, supra, 11 Cal.5th at p. 779.) But
the Supreme Court held that, “[s]o long as prosecutors are not
motivated by discriminatory intent, they can strike prospective
jurors for any reason—including for reasons that don’t
necessarily justify a challenge for cause.” (Ibid.; accord, People v.
Rhoades, supra, 8 Cal.5th at p. 435.) Although the prospective
juror at issue in Battle expressed ambivalence about imposing the
death penalty, the court made clear this was not the only
relevant fact undermining an inference of discriminatory purpose
in that case.8 Indeed, even if a prospective juror makes
8 In general, “a reviewing court may not rely on a
prosecutor’s statement of reasons to support a trial court’s finding
that the defendant failed to make out a prima facie case of
discrimination.” (People v. Scott, supra, 61 Cal.4th at p. 390;
see People v. Silas, supra, 68 Cal.App.5th at p. 1096.) But “a
16
“proprosecution” statements, “the prosecutor is not required to
take [a] juror’s answers ‘“‘at face value,’”’ when ‘“other statements
or attitudes of the juror suggest that the juror has ‘reservations
or scruples’ about imposing [a penalty] . . . .”’” (Battle, at p. 779;
see ibid. [prosecutors “don’t have to accept a prospective juror
simply because the juror may be proprosecution in some
respects”].) Finally, the Supreme Court in Battle observed that
the prosecutor in that case did not question the Black prospective
jurors differently from other prospective jurors. (Id. at p. 783;
see Rhoades, at p. 430 [record did not “reveal any apparent
disparities in the nature or extent of the prosecutors’ questioning
of the African-American prospective jurors versus prospective
jurors of other racial and ethnic backgrounds”].)
The prima facie showing of discriminatory intent was
weaker in this case than it was in Battle. Both cases involved
Black defendants who made a Batson/Wheeler motion after the
prosecution exercised a peremptory challenge against a Black
prospective juror. The prosecutor in Pratt’s trial challenged one
court reviewing a first-stage ruling that no inference of
discrimination exists ‘may consider apparent reasons for the
challenges discernible on the record’ as part of its ‘consideration
of “all relevant circumstances.”’” (Scott, at p. 390; see Battle,
supra, 11 Cal.5th at p. 773 [“We may also consider
nondiscriminatory reasons for the challenged strikes that are
‘apparent from and “clearly established” in the record.’”].) In
Battle the record was unclear about whether the prosecution
offered a reason to challenge the prospective juror at issue when
asked by the trial court to make a record for appeal, but the
record revealed the prospective juror had made statements
suggesting some unwillingness to impose the death penalty.
(Battle, at pp. 771, 779.)
17
of two prospective Black jurors (50 percent, compared to
66.67 percent in Battle), and the rate of peremptory challenges by
the prosecutor in this case against Black prospective jurors was
less disproportionate to the jury pool than in Battle.9 Pratt did
not allege the victim was the same race or ethnicity as the
majority of the seated jurors (nor did he develop a record to make
such a showing), the prosecutor accepted a jury that included a
Black juror, and the prosecutor did not question Prospective
Juror No. 8380 any more or less than other jurors.
Pratt argues there was nothing in Prospective Juror
No. 8380’s “profile” that “would indicate that she would identify
with” Pratt and that the prosecutor’s stated reason for striking
Prospective Juror No. 8380—that she cast sympathetic looks at
Pratt—is “unsupported by the record” and thus evidence of
pretext. But at the first stage of the Batson/Wheeler analysis we
do not consider the prosecutor’s stated reasons, if any, for
exercising a peremptory challenge. (People v. Scott, supra,
61 Cal.4th at p. 390; People v. Silas, supra, 68 Cal.App.5th at
p. 1096.) Only in the “‘rare’ circumstance” in which a prosecutor
volunteers a justification that is “discriminatory on its face,” is a
prosecutor’s stated reason for using a peremptory challenge
relevant to the first-stage review. (See Scott, at p. 391.) The
9 In this case 25 percent of the prosecutor’s peremptory
challenges were against Black prospective jurors, who comprised
14 percent of the jury pool, a ratio of 1.78 to 1. In Battle,
18 percent of the prosecutor’s peremptory challenges were
against Black prospective jurors, who comprised 8.13 percent of
the jury pool, a ratio of 2.21 to 1. (See Battle, supra, 11 Cal.5th at
pp. 770, 775; see also id. at p. 775 [“we can glean only limited
insight from the discrepancies”].)
18
prosecutor’s stated reason for excusing Prospective Juror
No. 8380 was not facially discriminatory.
Pratt therefore is left with the argument the prosecutor
struck 50 percent of Black prospective jurors in the jury box at
the time. Under the totality of the circumstances, that is not
enough to show the trial court erred in denying Pratt’s
Batson/Wheeler motion. (See Battle, supra, 11 Cal.5th at p. 770;
People v. Reed, supra, 4 Cal.5th at p. 1000 [prosecutor’s
peremptory challenges did not support an inference of
discriminatory intent in the context of the entire jury selection
process, where the prosecutor used approximately 63 percent of
his first eight peremptory strikes on Black jurors, even though
such jurors constituted only 34 percent of the venire]; People v.
Streeter, supra, 54 Cal.4th at p. 223 [defendant’s numerical
analysis did not establish a prima facie case where the prosecutor
exercised 60 percent of peremptory challenges against Black
prospective jurors while only 28 percent of prospective jurors
called to the jury box were Black].)
B. The Trial Court Did Not Commit Prejudicial Error in
Admitting Testimony from a Forensic and Graphic
Arts Expert
The trial court admitted expert testimony from a forensic
artist for the Sheriff’s Department, Sandra Enslow, who gave an
opinion on the similarities between a photograph of Pratt and the
person appearing in the surveillance videos wearing dark
clothing. She also gave an opinion on the similarities between a
photograph of the jeans found in Pratt’s bedroom and the jeans
worn by the person in the surveillance videos. Pratt argues the
trial court erred in admitting this testimony because the People
19
did not establish Enslow’s expertise, the testimony was not
beyond the everyday experience of jurors, and Enslow’s opinion
was “tantamount to an opinion on guilt.”10 Any error in
admitting Enslow’s testimony, however, was harmless.
1. Relevant Proceedings
a. Pratt’s Motion To Exclude Enslow’s
Testimony
The People proposed to have Enslow compare a photograph
of Pratt taken in custody with “a grainy enlarged portion of the
[surveillance] video” and have her compare “a very grainy image
of the pants worn by the shooter and a high-resolution image of
the pants taken by the police” from Pratt’s bedroom. Before trial
Pratt moved to exclude Enslow’s testimony on the grounds that
the jurors could make these comparisons without the assistance
of an expert and that Enslow lacked relevant expertise. The
People argued Enslow would only “discuss the similarities but
not . . . make any ultimate conclusions as to the individual or the
clothing being the same individual or clothing seen [in the
videos].” The trial court tentatively granted Pratt’s motion, but
invited the People to provide authority for allowing Enslow to
10 Pratt also argues the testimony violated the “secondary
evidence rule” under Evidence Code section 1523 and “was an
unwarranted extension of the expert testimony rules.” Pratt
forfeited these arguments by not making them in the trial court.
(See People v. Landry (2016) 2 Cal.5th 52, 86 [“‘“as a general rule,
‘the failure to object to errors committed at trial relieves the
reviewing court of the obligation to consider those errors on
appeal’”’”].)
20
testify about making these comparisons without stating the
“ultimate conclusion” Pratt was “the person that committed the
crime.” The record does not show the People submitted any such
authority.
During trial Pratt renewed his objection to Enslow’s
testimony. The prosecutor explained that, with regard to the
photograph of Pratt, Enslow would compare the “facial features”
of the person in the photograph with those of the person in the
surveillance video and would testify they were “similar.” The
prosecutor also stated that, regarding the jeans in the
photograph and the jeans in the video, Enslow would testify that,
“in her educated opinion,” they “are one and the same, and
provide the basis for that opinion.” Counsel for Pratt argued “all
of this is not the subject for an expert opinion because [Enslow]
hasn’t done facial measurements. She hasn’t enhanced the video.
She hasn’t done anything that one would associate with expert
testimony. All she’s doing is looking at one photograph and
comparing it to another photograph and saying they look similar.
That’s something [for] the jury—they don’t need any help doing
that. That’s not something an expert has a particular expertise
in or something that would aid the jury.” Counsel for Pratt also
argued Enslow’s “purported field of expertise is forensic graphic
artist,” which he contended was “not a field that is accepted as
legitimate and in the field of forensic science or science in
general.”
The trial court agreed to hold a hearing under Evidence
Code section 402, outside the presence of the jury, on the
admissibility of Enslow’s testimony. Subject to that hearing, the
court anticipated it would allow Enslow to testify. The court said
21
Enslow’s testimony would aid the jury by “identifying particular
facial features and bringing [them] to [the jury’s] attention.”
At the hearing under Evidence Code section 402, Enslow
testified she received a Bachelor of Arts degree from California
State University at Los Angeles and worked first as an illustrator
and graphic designer. As a graphic designer, Enslow said, she
worked with “logo images,” “patterning and imaging,” and
“different kinds of designs” for products including fabric and t-
shirts. As a forensic artist, Enslow said, she was trained in
illustration, rendering, and anthropology. She said she received
six years of training with the Sheriff’s Department and went to
the FBI Academy and Northwestern University for additional
training in forensic art. Enslow said that in her training she
“learned how to work from video and look at images and . . .
clarify for a detective what those images may look like and
possibilities thereof.” Enslow stated she was a member and
fellow of the American Academy of Forensic Sciences and taught
forensic art through the Academy and at the Los Angeles County
Sheriff’s Department Homicide School and Detective College.
She said she taught detectives how to work with forensic artists
and “how to get the most out of a forensic artist.” Finally, Enslow
said she lectured “nationally” and had recently given a lecture to
wildfire investigators on how to use forensic artists as a resource,
“especially using video.” Enslow testified that in previous court
appearances she had “been declared an expert” in facial imaging
and as a forensic artist.
Enslow testified she had been a “graphic arts coordinator”
and “lead forensic artist” for over 25 years for the Los Angeles
County Sheriff’s Department. In those roles she managed the
forensic imaging unit in the homicide bureau, drew composite
22
images, and created facial reconstructions from skeletons.
Enslow said she often “work[ed] from video” and did
“comparisons,” such as when a detective asked her to “create a
facial image” to give the detective a sense of what a person shown
in a video looked like. With regard to digital imaging, Enslow
explained she had experience using photo editing software to
modify digital images for photographic lineups to make them
more “fair.”
Enslow stated that in this case a detective asked her to
“look at pictures in a video and then compare them to the
photographs of a person, and then . . . to look at pictures in a
video of a man wearing jeans and then a photograph of the
jeans.” The detective asked her, “‘Do these appear to be similar,’”
and Enslow said they were. Enslow said that, to form her
opinion about the jeans, she looked at “pattern and imagery and
shape.” She said “those skills come from a lifetime, not only at
the Sheriff’s Department, but previous in my work in the private
sector in looking at patterns and looking at designs.” Enslow said
she looked at the jeans and the video, identified the “best
comparison stills” from the video, and compared them. Enslow
said that, to form her opinion about the images of Pratt, she
relied on her “education as to [her] knowledge about the human
face and how the human face is built—skull, musculature—and
the images [she saw] in the video.” She stated that, “because of
the presence and the absence of light,” she “was able to make a
favorable comparison.” Enslow said that the video images she
reviewed were not enhanced in any way and that she did not
make any facial measurements by, for example, measuring the
distance between the subject’s eyes. The trial court allowed
Enslow to testify.
23
b. Enslow’s Trial Testimony
After reciting her education, training, and work experience
for the jury, Enslow compared a photograph of the jeans found in
Pratt’s bedroom with the jeans in an image of the person wearing
jeans in the surveillance video from the night of the shooting.
Enslow said she first “noticed everything about the jeans that
[she] could,” including the brand (“Royalty”), the image on the
pockets of the jeans, and the design around the pocket. Enslow
called the design “very distinctive” and “very specific.” Enslow
said she reviewed the video, which was “clearer” to watch while
the video was running than when the video was stopped. Enslow
concluded “the image on the person in the video, on his jeans, and
the [photograph of the] jeans I was asked to compare look
similar.” Enslow created two screenshots from the video, and the
court admitted them into evidence. One of them showed a
“paisley image” at the bottom of the jeans pocket with “two wings
on either side of it and a flower image in the middle.” Enslow
also observed that the person in the video wore his jeans so low
he “appear[ed] to be walking on the backs” of the jeans and that
the jeans in the photograph from Pratt’s bedroom were “quite
ragged and torn.”
Next, Enslow compared the surveillance videos to
photographs of a “person of interest” given to her by a Sheriff’s
Department detective. Enslow testified she watched the videos
and observed the person’s nose, cheekbones, mouth, chin, and
jawbone. The People introduced a one-page document that
included booking photographs of Pratt and still images of the
individual wearing dark clothing in the surveillance videos.
Using those images, Enslow identified the facial features she
found “helpful” in concluding the images were “similar,” including
24
the nose (“shorter, compact, soft, round,” with “a very low
bridge”), the “fullness of the lips,” and the angles of the
cheekbones and jawline. Enslow stated there were “many
different areas on [the face in the photographs] that show in th[e]
video.” As in the case of the jeans, Enslow said the video images
were clearer than screenshots of the video. Enslow testified that
she was “not identifying anyone,” but that the images from the
surveillance video “have similarity” to the images of the person in
the booking photographs.
During cross-examination Enslow stated that she selected
the screenshots to use for her comparisons, but that she did not
alter the lighting or zoom in on the video images to create the
screenshots. She did, however, enlarge one of the screenshots for
“presentation purposes.” She said it was somewhat difficult to
use the screenshots for comparison purposes because the still
shots “blur[red] up,” which is why she also reviewed the video.
Enslow said she did not believe image enhancement software
would give “better definition” to the images for purposes of
comparing them.
Counsel for Pratt asked Enslow about the brand name
“Royalty” that appeared in the picture of the jeans found in
Pratt’s bedroom and whether it appeared in any of the video
images she reviewed. Enslow said, “Not that I could tell,” but she
explained she would not expect its “thin and delicate” typeface to
show up in the video because it was “difficult to read.” Counsel
for Pratt also asked Enslow whether the design on the jeans in
the video appeared to be lower than the design on the jeans found
in Pratt’s bedroom. Enslow said the design on the jeans in the
video only appeared to be lower because the person wore the
25
jeans low, “hanging on the back of his thigh,” rather than “hiked
up around his waist.”
Regarding her facial comparison analysis, Enslow said she
based her conclusion on similarities in the subject’s broad nose,
mustache, full lips, and strong jaw. She admitted these features
were “common” or “relatively common” in the African American
community, and thus it was fair to say the individual in the video
was similar in appearance to many people in that community.
c. Pratt’s Expert Witness’s Trial Testimony
Pratt called Thomas Guzman-Sanchez, an “audio and video
forensic” expert, to testify about the same comparisons Enslow
made. Guzman-Sanchez testified he followed the standards
created by the Scientific Working Group for Digital Media, which
has “best practices for digital media photographic comparison.”
To make the comparisons, Guzman-Sanchez magnified still
images from the surveillance video and superimposed arrows on
the images to highlight certain items for the jury. He “clarified”
an image that included the nose of the person shown in the video
and noticed “there was a notable difference in the profile” of that
person and the profile of Pratt as shown in the booking
photographs. According to Guzman-Sanchez, the person in the
surveillance video “had a notably longer or an extended nose than
[Pratt].” Guzman-Sanchez also testified the “nose shape” of the
person in the surveillance video was consistent across multiple
frames of the video, which led him to believe the longer nose was
an “actual physical feature” of the person in the video and not a
distortion from the camera’s lens. Guzman-Sanchez pointed out
some “definite similarities” between Pratt and the “target” image
26
in the video, but “also unique individualizing characteristics” that
prevented an “empirical[ ] match.”
In comparing the photograph of the jeans found in Pratt’s
bedroom with those in the surveillance video, Guzman-Sanchez
testified the still images of the video provided by the Sheriff’s
Department were “not true to the actual digital image” because
“it’s very dark.” Guzman-Sanchez said he extracted images from
the video and put them into a software program, magnified the
images without distorting them, used a “lumina filter” to “bring
out certain aspects” of the images, and may have also used a
“very slight sharpening filter.” Guzman-Sanchez described the
image on the jeans from Pratt’s house as “a very detailed lion”
with “brocade” around it. He said the image on the jeans from
the video looked more like “a Japanese Kanji letter.”11 He also
superimposed the two images and concluded they were “similar,”
but he could not “match them empirically as the same . . . due to
design differences.”
2. Applicable Law and Standard of Review
“‘While lay witnesses are allowed to testify only about
matters within their personal knowledge (Evid. Code, § 702,
subd. (a)), expert witnesses are given greater latitude. “A person
is qualified to testify as an expert if he has special knowledge,
skill, experience, training, or education sufficient to qualify him
11 Kanji are actually characters, not letters. (Kaiser
Foundation Health Plan, Inc. v. Abbott Laboratories, Inc.
(9th Cir. 2009) 552 F.3d 1033, 1049; see Otokoyama Co. Ltd. v.
Wine of Japan Import, Inc. (2d Cir. 1999) 175 F.3d 266, 269, fn. 2
[“Katakana, Hiragana, and Kanji are . . . three different writing
systems in the Japanese language”].)
27
as an expert on the subject to which his testimony relates.”
(Evid. Code, § 720, subd. (a).) An expert may express an opinion
on “a subject that is sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.”’” (People v.
Duong (2020) 10 Cal.5th 36, 60; see People v. McDowell (2012)
54 Cal.4th 395, 425-426 [“‘Expert opinion testimony is admissible
only if it is “[r]elated to a subject that is sufficiently beyond
common experience that the opinion of an expert would assist the
trier of fact.”’”]; Menifee v. Superior Court (2020) 57 Cal.App.5th
343, 360 [“‘“The requirements for expert testimony are that it
relate to a subject sufficiently beyond common experience as to
assist the trier of fact and be based on matter that is reasonably
relied upon by an expert in forming an opinion on the subject to
which his or her testimony relates.”’”].)
“‘When expert opinion is offered, much must be left to the
trial court’s discretion.’” (People v. McDowell, supra, 54 Cal.4th
at p. 426.) “‘“We are required to uphold the trial judge’s ruling on
the question of an expert’s qualifications absent an abuse of
discretion. [Citation.] Such abuse of discretion will be found only
where ‘“the evidence shows that a witness clearly lacks
qualification as an expert . . . .”’”’” (People v. Pearson (2013)
56 Cal.4th 393, 445; accord, People v. Morales (2020) 10 Cal.5th
76, 97; see People v. Polk (2019) 36 Cal.App.5th 340, 353 [the
determination that a witness qualifies as an expert is “within the
discretion of the trial court and will not be disturbed without a
showing of a ‘manifest abuse’”].) Similarly, the “‘trial court has
broad discretion in deciding whether to admit or exclude expert
testimony [citation], and its decision as to whether expert
testimony meets the standard for admissibility is subject to
review for abuse of discretion.’” (People v. Duong, supra,
28
10 Cal.5th at p. 60; accord, People v. Brown (2014) 59 Cal.4th 86,
101; People v. James (2021) 70 Cal.App.5th 1031, 1051; see also
People v. Peterson (2020) 10 Cal.5th 409, 457 [“We review the
decision to admit the expert testimony for abuse of discretion.”].)
3. The Trial Court Did Not Abuse Its Discretion in
Ruling Enslow Was Qualified To Testify as an
Expert
Pratt argues the trial court erred in ruling Enslow was
qualified to give expert testimony because “[s]he presented no
evidence of training in the specific area of comparing persons in
videos to photographic evidence or in comparing garment
patterns.” Pratt does not argue Enslow lacked expertise in
forensic art or in graphic design.
When a party objects to an expert witness’s qualifications,
Evidence Code section 720 requires the party offering the expert
testimony to demonstrate the expert’s special knowledge, skill,
experience, training, or education before the witness may testify
as an expert. (People v. Townsel (2016) 63 Cal.4th 25, 45.) “‘“‘The
competency of an expert is relative to the topic and fields of
knowledge about which the person is asked to make a
statement.’”’” (People v. DeHoyos (2013) 57 Cal.4th 79, 128; see
People v. Tuggle (2012) 203 Cal.App.4th 1071, 1079 [“‘[T]he
qualifications of an expert must be related to the particular
subject upon which he is giving expert testimony.’”].) “‘Whether a
person qualifies as an expert in a particular case . . . depends
upon the facts of the case and the witness’s qualifications.’”
(Tuggle, at p. 1079; see People v. Bloyd (1987) 43 Cal.3d 333,
357.) “‘When a preliminary showing is made that the proposed
witness has sufficient knowledge to qualify as an expert under
29
the Evidence Code, questions about the depth or scope of his or
her knowledge or experience go to the weight, not the
admissibility, of the witness’s testimony.’” (People v. Jackson
(2016) 1 Cal.5th 269, 327-328; accord, People v. Jones, supra,
57 Cal.4th at pp. 949-950; see People v. Brown, supra, 59 Cal.4th
at p. 100 [“‘Once an expert witness establishes knowledge of a
subject sufficient to permit his or her opinion to be considered by
a jury, the question of the degree of the witness’s knowledge goes
to the weight of the evidence and not its admissibility.’”].)
As discussed, Enslow testified that in her forensic art
training she learned how to look at video images and explain
them to a detective and that she taught law enforcement how to
use forensic artists as a resource. Enslow did not say she had
any specific education or training in comparing video images to
photographic images, but she appears to have used her work
experience in the Sheriff’s Department and expertise in forensic
arts and graphic design to identify meaningful features of Pratt’s
face and jeans in the video and photographic images. (See People
v. Bolin (1998) 18 Cal.4th 297, 322 [criminalist properly relied on
his educational background in biochemistry and serology, and his
training as a criminalist for 13 years, to form his opinion about
the position of the victim after the first and second fatal shots];
see also People v. Morales, supra, 10 Cal.5th at p. 99 [expert’s
lack of academic credentials did not show he clearly lacked the
necessary qualifications, where the expert had “relevant on-the-
job training and experience”].) Although Enslow’s qualifications
were not particularly impressive and the evidence of her
credentials was thin,12 we cannot say she lacked the
12 In contrast, the expert in People v. Tran (2020)
50 Cal.App.5th 171 had “30 years of experience as a certified
30
qualifications to enable her to testify about the similarities
between the images in the surveillance videos and the
photographs.
Pratt argues Enslow’s opinions were not “verified as correct
through any scientific testing or blind comparisons” and were not
admissible under the standard in Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. 579 [113 S.Ct. 2786,
125 L.Ed.2d 469] (Daubert) for the admissibility of scientific
evidence. But Pratt concedes the test applicable in California
under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v.
United States (D.C. Cir. 1923) 293 F. 1013 (Frye) for the
admissibility of expert testimony based on new scientific
techniques does not apply here because Enslow’s opinions were
not “scientific.” We agree with this concession: Enslow’s opinions
did not rely on the type of scientific evidence that requires
additional scrutiny under Kelly/Frye. (See People v. Peterson,
supra, 10 Cal.5th at p. 444 [“Kelly ‘“only applies to that limited
class of expert testimony which is based, in whole or part, on a
technique, process, or theory which is new to science and, even
more so, the law.”’”]; People v. Lapenias (2021) 67 Cal.App.5th
forensic video analyst,” a “degree in television broadcast
communications with an emphasis on television engineering,”
headed a police department’s forensic video unit, was “the
principal instructor for the Law Enforcement and Emergency
Services Video Association (LEVA),” “trained video analysts
throughout the world,” “served as an instructor at the FBI
National Academy,” and was “certified in the area of forensic
video analysis by LEVA.” (Id. at p. 179.) Night and day.
31
162, 173 [same].)13 Moreover, the Supreme Court has stated
that, “[n]otwithstanding Daubert, Kelly/Frye remains the law of
California.” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 831, fn. 7; see People v. Lucas (2014) 60 Cal.4th 153, 245,
fn. 36 [Supreme Court has not indicated “any move away from
the Kelly test toward the federal Daubert standard], disapproved
on another ground in People v. Romero and Self (2015) 62 Cal.4th
1, 53, fn. 19.)
Pratt also argues the trial court failed to exercise its
“gatekeeper” function under Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747 to
exclude testimony that lacks sufficient “‘intellectual rigor.’”
(Id. at p. 772.) Pratt argues Enslow must have based her opinion
on something more than her “self-proclaimed expertise.” But as
discussed, Enslow testified about her education, training, and
experience in forensic arts, some in video and photographic
13 “[A]dditional scrutiny [under Kelly] ‘is justified because
“[l]ay jurors tend to give considerable weight to ‘scientific’
evidence when presented by ‘experts’ with impressive credentials.
We have acknowledged the existence of a ‘. . . misleading aura of
certainty which often envelops a new scientific process, obscuring
its currently experimental nature.’”’ [Citation.] [¶] But in most
cases no similar caution is required before a jury considers expert
opinion testimony. Unlike results ‘produced by a machine,’ to
which jurors may ‘ascribe an inordinately high degree of
certainty,’ jurors presented with the personal opinion of a
witness, even an expert witness, ‘may temper their acceptance of
his [or her] testimony with a healthy skepticism born of their
knowledge that all human beings are fallible.’” (People v.
Peterson, supra, 10 Cal.5th at pp. 457-458.)
32
imaging and at least a little in graphic design. Her opinions were
based on (a little) more than “self-proclaimed expertise.”
4. Any Error in the Trial Court’s Ruling Enslow’s
Opinions Would Assist the Jury Was Harmless
Whether the trial court abused its discretion in allowing
Enslow to testify that the person in the surveillance video looked
similar to Pratt and wore jeans similar to the jeans found in
Pratt’s bedroom is a closer call. As Pratt argues, jurors in their
everyday lives make comparisons of objects and persons. Thus,
Pratt argues, Enslow’s testimony did not assist the jury and was
not beyond common juror experience. He has a point.
In many cases where a court has allowed expert testimony
consisting of video and photographic comparisons, the expert had
manipulated, enhanced, or otherwise edited the video recordings
to make them easier for the jury to view, or the expert provided
insights into how the medium (video or photograph) portrayed a
subject given the circumstances in which the image was recorded
(for example, ambient lighting or reflections). (See People v. Tran
(2020) 50 Cal.App.5th 171, 189; see also United States v.
Alexander (5th Cir. 1987) 816 F.2d 164, 168 [testimony of a
“photographic comparison expert” that “the amount of distortion
in the pictures taken by the bank surveillance cameras” affected
the subject of the photographs, and photos taken by the expert
that “duplicated the exact distance, camera angle, and focal
length of those taken at the bank,” aided the jury in visually
comparing the photos]; United States v. Sellers (4th Cir. 1977)
566 F.2d 884, 886 [expert testimony “may assist the jury’s
evaluation of photographs by explaining the effects of light,
shadow, and reflections, and the distortion caused by the
33
perspective of the picture, and other technical factors”]; State v.
Ali (Minn. 2014) 855 N.W.2d 235, 251-252 [trial court did not
abuse its discretion in admitting the testimony of a forensic
expert who “‘performed enhancements to the images that [he]
extracted’ from videos” and testified “about how variations in
video quality and lighting could cause variations in the images
that the jury saw” and that “the camera angle and distance from
the camera” indicated “that one suspect [was] taller than the
other”]; Stevenson v. State (Tex.Ct.App. 2010) 304 S.W.3d 603,
609-610, 621-622 [trial court did not abuse its discretion in
admitting the testimony of a forensic video analysis expert who
“overlaid . . . 911 calls onto the surveillance videotape”;
interpreted a poor quality, black-and-white surveillance video for
the jury; and superimposed on the video a “‘Measurement
Standard’” placed on the floor of the store where a robbery
happened “to show the relative height of one of the robbers
against the ‘Measurement Standard’”].) Such enhancements and
expertise allow a “layperson [to] appreciate what they are looking
at.” (Stevenson, at p. 621.)
Enslow did not manipulate or enhance the video she
reviewed, create new images based on forensic expertise to enable
the jury to extract certain information from the surveillance
video, or use any knowledge of video or photographic imaging to
interpret the surveillance video. She merely looked at and
compared the same surveillance video, and the same photographs
of Pratt and his jeans, the jurors also saw. Under these
circumstances, Enslow’s testimony at least came dangerously
close to invading the province of the jury. (See United States v.
Dorsey (4th Cir. 1995) 45 F.3d 809, 815 [“the comparison of
photographs is something that can sufficiently be done by the
34
jury without help from an expert”]; United States v. Brewer
(9th Cir. 1986) 783 F.2d 841, 842 [district court did not err in
excluding expert photographic comparison testimony where “the
untrained jury could compare the photographs of the robber with
those of [the defendant] without the special assistance of an
expert”]; United States v. Trejo (9th Cir. 1974) 501 F.2d 138, 143
[district court erred in admitting expert testimony comparing
surveillance video to photographs of the defendant where the
expert “did not in fact touch on any matter, or offer any
observations of the evidence that would not have been beyond the
normal faculties of observation of a jury,” and “[t]here were no
unusual or peculiar idiosyncrasies, or detailed analyses of facial
formations which the jury could not undertake on its own as part
of its fact-finding function”].) The jurors were just as capable of
looking at and comparing the pictures as Enslow was.
The People rely on United States v. Cairns (9th Cir. 1970)
434 F.2d 643. In that case the district court admitted expert
testimony from a “photographic identification specialist”
comparing surveillance video from the time of a robbery and a
police photograph of the defendant. (Id. at p. 644.) The expert
enlarged the head area of a photograph taken from the
surveillance video to match the size of the defendant’s head in the
police photograph. “The witness then pointed out the similarity
in the two photographs in the nose and mouth areas, chin line,
hair lines, ear contours and inner folds of the ears, among other
things. He then testified that based on all the general
characteristics the individual in the surveillance photograph is
the individual in the police photograph ‘or another individual
having all of these characteristics as to nose, mouth, chin, and
the ear characteristics . . . .’” (Ibid.) The Ninth Circuit found no
35
error.14 (Ibid.; see United States v. Snow (6th Cir. 1977) 552 F.2d
165, 167 [district court did not abuse its discretion in admitting
expert testimony comparing photographs of the defendant with a
bank’s surveillance photographs]; United States v. Green (8th Cir.
1975) 525 F.2d 386, 391-392 [expert testimony comparing
surveillance photographs and photographs of the defendant’s
clothes was admissible where “a jury of twelve laymen would not
have the experience to note the unique curl of the cuffs of the
jacket, the electrical alligator clip, the crease in the pants cuff,
the way the seams of the pants lined up, the worn spots on the
pants, and the eyelets and lacing of the shoes”]; United States v.
Brown (2d Cir. 1975) 511 F.2d 920, 924 [district court did not
abuse its discretion in admitting expert testimony comparing
bank surveillance photos of the robber with known photographs
of the defendant, where the expert took new photographs of the
defendant “in a position as nearly as possible identical with [the
robber’s] location in the bank”]; State v. Ali, supra, 855 N.W.2d at
p. 251 [expert testimony comparing “pictures of pants” the “police
recovered at [the defendant’s] apartment with the images of
pants that were recorded in . . . various surveillance videos” was
admissible where the expert “pointed out various details in the
pants that were apparent in the surveillance videos, such as
contrast in the fabric on one of the thighs”]; cf. United States v.
Fadayini (D.C. Cir. 1994) 28 F.3d 1236, 1241 [district court did
not abuse its discretion in admitting expert testimony identifying
14 Cairns was later “reexamined” and limited to
circumstances where an offer of proof convinces the court by a
preponderance of the evidence “the offered testimony will bring to
light facts beyond the common knowledge and experience of the
jury.” (United States v. Trejo, supra, 501 F.2d at p. 143.)
36
the defendant from ATM photographs because the testimony
“may have served to focus the jury on particular characteristics of
the defendants (e.g., facial features, distinguishing marks),
thereby aiding the jurors’ independent assessments of the
photographs,” but the court stated that “the untrained juror could
fully assess the photographs without the assistance of the
expert”].)
We would be more inclined to find error with the trial
court’s admission of Enslow’s testimony that the image of Pratt in
photographs was “similar” to the person appearing in the
surveillance videos than with her testimony that there were
similarities between the jeans in the photograph and the jeans
worn by the person in the surveillance video. At least in the
latter case, Enslow’s explanations for why the “Royalty” label was
not visible on the jeans in the video, and why the design elements
on the jeans worn by the person in the surveillance video
appeared lower than they did in the photograph taken by
Sheriff’s detectives, gave the jurors information that may (may)
have been beyond their common experience. But nothing Enslow
said in comparing the still video images to photographs of Pratt
was particularly helpful to the jurors. As was true with the
expert witness in United States v. Trejo, supra, 501 F.2d 138,
Enslow did not identify any unusual physical characteristics in
her subjects or do any factual analysis that the jurors could not
do on their own (and that jurors do all the time). (Id. at p. 143.)
Enslow testified there were “many different areas” of Pratt’s face
in his booking photographs “that show in th[e] video.” In that
case, the jurors could have compared the booking photographs of
Pratt to the surveillance video (and the still images taken from
the video), just as Enslow did.
37
But any error in admitting Enslow’s testimony was
harmless under People v. Watson (1956) 46 Cal.2d 818. (See
People v. Pearson, supra, 56 Cal.4th at p. 446 [“‘[t]he erroneous
admission of expert testimony only warrants reversal if “it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error”’”];
People v. Prieto (2003) 30 Cal.4th 226, 247 [Watson harmless-
error standard applies to the erroneous admission of expert
testimony].) The testimony of Ordaz, Bowen, and Saddi
overwhelmingly implicated Pratt as the shooter; there were no
other reasonable possibilities. Ordaz saw the person wearing
dark clothing in the surveillance video talking to Castaneda
moments before the shooting, Bowen identified the shooter as the
person wearing dark clothes in the surveillance video, and Saddi
identified the person wearing dark clothes in the surveillance
video as Pratt, a “regular” in Saddi’s liquor store. Neither Ordaz
nor Bowen said he saw Castaneda with anyone else in the
moments before the shooting. And the jeans (including their
ragged hems), gunshot residue, and cell phone data all
corroborated the witnesses’ collective testimony that Pratt was
the shooter.
Moreover, Enslow did not testify that Pratt was the same
person or that the jeans found in his bedroom were the same
jeans in the surveillance videos, and her opinions “‘did not bind
the jurors . . . or preclude them from considering other relevant
evidence.’” (People v. Brown, supra, 59 Cal.4th at p. 101.) The
jurors heard conflicting expert opinions (cf. United States v.
Sellers, supra, 566 F.2d at p. 886 [trial court’s error in excluding
testimony by the defendant’s expert that the defendant was not
the person shown in surveillance photographs, while admitting
38
the testimony of the prosecution’s expert that it was impossible to
determine from the photographs whether the defendant was the
perpetrator, was prejudicial]), and in their closing arguments
both the prosecutor and counsel for Pratt urged the jurors to
review the video and photographs and decide for themselves
whether the photographic evidence implicated Pratt. And the
trial court properly instructed the jurors they should determine
“the meaning and importance of any [expert] opinion,” “consider
the expert’s knowledge, skill, experience, training, and education,
[and] the reasons the expert gave for an opinion,” and “the facts
or information on which the expert relied on reaching that
opinion.” The court also told the jurors to “disregard any opinion
that [they] found unbelievable, unreasonable, or unsupported by
the evidence.” Under these circumstances, any error in admitting
Enslow’s testimony was harmless. (See Brown, at p. 101
[erroneous admission of expert testimony was harmless where
the “court properly instructed the jury regarding the
consideration of expert testimony, telling jurors they were not
bound to accept [an expert’s] opinion,” “‘should give to it the
weight to which [they] find it to be entitled,’” and could
“‘disregard any such opinion’”].)15
15 Pratt argues we should evaluate whether the admission
was harmless beyond a reasonable doubt under Chapman v.
California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705because the trial court “undermine[d] the prosecution’s burden to
prove all elements to a jury beyond a reasonable doubt.” Pratt
contends Enslow’s testimony “impacted upon the jury’s
determination of the only direct evidence of the perpetrator.” But
Enslow’s testimony was not the only evidence of the perpetrator’s
identity. Taken together, the testimony of Ordaz, Bowen, and
Saddi also identified Pratt as the shooter.
39
Nor, contrary to Pratt’s assertion, was Enslow’s testimony
“tantamount to an opinion on guilt.” “‘Testimony in the form of
an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the trier
of fact.’” (People v. Brown, supra, 59 Cal.4th at p. 101; see Evid.
Code, § 805.) Enslow did not give an opinion on Pratt’s guilt; she
stated only that the person in the surveillance videos looked
similar to Pratt and that his jeans also looked similar. As
discussed, Pratt’s expert witness gave contrary opinions, and the
court told the jurors they were not bound by either witness’s
testimony. (See Brown, at p. 101; see also People v. Lindberg
(2008) 45 Cal.4th 1, 49 [expert witness’s opinion the defendant
was a White supremacist was not an opinion on the defendant’s
guilt, where the expert “stated no opinion as to defendant’s guilt
or the truth of the [hate-murder] special circumstances,” and the
expert’s opinion “did not bind the jurors on this point or preclude
them from considering other relevant evidence”].)
C. Remand Is Appropriate for the Trial Court To
Exercise Its Discretion Whether To Impose a Lesser
Firearm Enhancement Under Section 12022.53
As stated, the trial court imposed a term of 25 years to life
for the firearm enhancement under section 12022.53,
subdivision (d), for personally and intentionally discharging a
firearm causing great bodily injury or death. The trial court
sentenced Pratt after the Legislature amended section 12022.53,
subdivision (h), to give the court the discretion to strike or
dismiss firearm enhancements under section 12022.53.
(Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) But neither the trial
40
court, counsel for Pratt, nor the prosecutor was aware of the
court’s sentencing discretion. The People concede remand is
appropriate to give the court an opportunity to exercise its
discretion under section 12022.53, subdivision (h). (See People v.
Flores (2020) 9 Cal.5th 371, 431-432 [appropriate remedy is to
remand for resentencing where a court is unaware of the scope of
its discretionary powers, “‘unless the record “clearly indicate[s]”
the trial court would have reached the same conclusion “even if it
had been aware that it had such discretion”’”]; People v. Ochoa
(2020) 53 Cal.App.5th 841, 853 [same].)
The parties disagree, however, about the scope of the trial
court’s discretion on remand. Pratt cites People v. Morrison
(2019) 34 Cal.App.5th 217 (Morrison) for the proposition the trial
court has discretion to impose or strike the enhancement under
section 12022.53, subdivision (d), or to impose a lesser
enhancement under section 12022.53, subdivision (b) or (c). The
People argue Morrison was wrongly decided and cite People v.
Tirado (2019) 38 Cal.App.5th 637, review granted November 13,
2019, S257658 (Tirado), for the proposition section 12022.53,
subdivision (h), does not authorize a trial court “to substitute one
enhancement for another.” (Tirado, at p. 643.)16 The Supreme
16 See also People v. Hoang (2021) 66 Cal.App.5th 1020, 1024
(“the plain language of section 12022.53, subdivision (h)
authorizes a trial court to strike or dismiss a firearm
enhancement only; it does not permit the court to substitute a
lesser firearm enhancement”), review granted September 29,
2021, S270553; People v. Delavega (2021) 59 Cal.App.5th 1074,
1087-1088 (same), review granted April 14, 2021, S267293;
People v. Valles (2020) 49 Cal.App.5th 156, 166 (same), review
granted July 22, 2020, S262757; People v. Yanez (2020)
41
Court will very soon decide the issue. (See People v. Garcia
(2020) 46 Cal.App.5th 786, 788, review granted June 10, 2020,
S261772 (Garcia).) But for now, we believe Morrison is better
reasoned.
As the court in Morrison explained, “Case law has
recognized that the court may impose a ‘lesser included’
enhancement that was not charged in the information when a
greater enhancement found true by the trier of fact is either
legally inapplicable or unsupported by sufficient evidence.”
(Morrison, supra, 34 Cal.App.5th at p. 222.) The same principle
gives the court discretion to impose an enhancement under
section 12022.53, subdivision (b) or (c), that was not presented to
the jury. Indeed, the Legislature’s purpose in amending section
12022.53, subdivision (h), was to expand the trial court’s
discretion to reduce criminal sentences in appropriate cases, not
to restrict it. (See Sen. Com. on Public Safety, Analysis of Sen.
Bill No. 620 (2017-2018 Reg. Sess.) as amended Mar. 28, 2017,
p. 3 [Senate Bill No. 620 “would allow a court to use judicial
discretion when applying a sentence enhancement when a person
uses or discharges a firearm when a person is convicted for
committing a felony”]; id. at p. 8 [Senate Bill No. 620 “allows a
court to use judicial discretion and take into account the nature
and severity of the crime and other mitigating and aggravating
factors during sentencing” and “provides judges the ability to
impose sentences that fit the severity of the offense”]; Assem.
Com. on Public Safety, Analysis of Sen. Bill No. 620 (2017-2018
Reg. Sess.) as amended Mar. 28, 2017, p. 8 [Senate Bill No. 620
44 Cal.App.5th 452, 459-460 (same), review granted April 22,
2020, S260819.
42
“‘allows a judge to take into account the nature and severity of
the crime, as well as the individual’s culpability, during
sentencing’” and “‘provides judges the ability to impose sentences
that fit the severity of the offense, helping to ensure that
incarcerated Californians do not serve unnecessarily long
sentences’”]; Sen. 3d reading analysis of Sen. Bill No. 620 (2017-
2018 Reg. Sess.) as amended June 15, 2017, p. 3 [Senate Bill
No. 620 “‘allows a judge to exercise discretion on whether or not
to make a long sentence longer if it is in the interest of justice’”].)
The conclusion of the courts in Tirado and Garcia that trial
courts do not have discretion to impose a 10- or 20-year
enhancement under section 12022.53, subdivision (b) or (c), if the
court strikes or dismisses a 25-years-to-life enhancement under
section 12022.53, subdivision (d), was based on the rationale that
“[n]othing in the plain language of sections 1385 and 12022.53,
subdivision (h) authorizes a trial court to substitute one
enhancement for another.” (Tirado, supra, 38 Cal.App.5th at
p. 643, review granted; see Garcia, supra, 46 Cal.App.5th at
p. 791 [“section 12022.53, subdivision (h) confers the authority to
‘strike or dismiss’ a firearm enhancement set forth in section
12022.53” and “says nothing about substituting or modifying
enhancements”].) As the court in Tirado stated, “This language
indicates the court’s power pursuant to these sections is binary:
The court can choose to dismiss a charge or enhancement in the
interest of justice, or it can choose to take no action. There is
nothing in either statute that conveys the power to change,
modify, or substitute a charge or enhancement.” (Tirado, at
p. 643.)
But the question is not whether the court has the “binary”
discretion “pursuant to” the plain language of section 12022.53,
43
subdivision (h), to impose a lesser enhancement after the greater
enhancement has been stricken or is otherwise unavailable. The
question is whether the plain language of section 12022.53,
subdivision (h), takes away discretion the court already has. And
it doesn’t. As the concurring opinion in People v. Valles (2020)
49 Cal.App.5th 156, review granted July 22, 2020, S262757,
explained: “The question is not whether the amended statute
conveys the power to impose an uncharged lesser enhancement (or
change or modify an enhancement). Rather, the question is
whether, having exercised its power under the amended statute
to strike a greater enhancement, the court still has its previously
recognized power to impose an uncharged lesser.” (Id. at p. 171
(conc. opn. of Menetrez, J.).)
DISPOSITION
The convictions are affirmed. The trial court is directed to
exercise its discretion whether to impose a lesser firearm
enhancement under section 12022.53.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
44