People v. Gordon CA3 ( 2021 )


Menu:
  • Filed 12/22/21 P. v. Gordon CA3
    NOT TO BE PUBLISHED
    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 This opinion has not been certified for publication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
    THIRD APPELLATE DISTRICT
    (Sacramento)
    ----
    THE PEOPLE,                                                                                   C086934
    Plaintiff and Respondent,                                    (Super. Ct. No. 16FE009146)
    v.
    ALBERT JEROME GORDON,
    Defendant and Appellant.
    A jury found defendant Albert Jerome Gordon guilty of multiple crimes related to
    the possession for sale of cocaine and marijuana and the unlawful possession of a
    firearm. In a bifurcated proceeding, the trial court found true the enhancement that
    defendant served one prior prison term under Penal Code section 667.5, subdivision (b)
    (statutory section citations that follow are to the Penal Code unless otherwise stated). On
    appeal, defendant contends: (1) we must independently review the sealed transcript of
    the in-camera hearing pursuant to Pitchess v. Superior Court (1974) 
    11 Cal.3d 531
     to
    determine whether the trial court abused its discretion in refusing to disclose any
    potentially relevant personnel records of three police officers; (2) the trial court erred in
    denying his claim that the prosecutor impermissibly relied on race during jury selection
    in violation of Batson v. Kentucky (1986) 
    476 U.S. 79
     [
    90 L.Ed.2d 69
    ] (Batson); and (3)
    the trial court abused its discretion in admitting photographs he alleges depicted him with
    1
    cash and guns, under Evidence Code section 352. Additionally, defendant contends in
    supplemental briefing, and the Attorney General concedes, that the prior prison term
    enhancement must be stricken from his sentence because he is entitled to the benefits of
    Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1) (Senate Bill 136),
    which became effective on January 1, 2020, during the pendency of the current appeal.
    We will direct the trial court to strike defendant’s prior prison term enhancement.
    We otherwise affirm the judgment.
    FACTS AND HISTORY OF THE PROCEEDINGS
    On May 7, 2016, during the execution of a search warrant at defendant’s residence
    on Center Parkway, officers found eight cell phones, $300 in cash, and a sock containing
    an empty Glock extended-capacity handgun magazine and a Glock standard-capacity
    handgun magazine with three live nine-millimeter rounds on the nightstand. In a shoe
    underneath defendant’s nightstand, officers found a sock containing a one-ounce baggie
    of methamphetamine. Officers also found $3,850 underneath the nightstand. In a satchel
    underneath the mattress, officers found two loaded nine-millimeter Beretta semiautomatic
    handguns, a nine-millimeter Glock handgun, an extended-capacity magazine that fit the
    Glock, and loose rounds of ammunition in two different calibers.
    In the master bedroom closet, officers found a shoebox containing a sandwich
    baggie holding a few nine-millimeter rounds. In a drawer of a television console in the
    master bedroom, officers found a .45-caliber Ruger handgun and a .40-caliber Springfield
    handgun with loaded magazines attached. In another drawer, officers found $7,889, a
    calculator, rubber bands, and a bag containing 42 baggies of marijuana totaling 147
    grams, 3 packages of powder cocaine totaling 21 grams, 46 packages of cocaine base
    totaling 17 grams, 58 packages of rock cocaine totaling 213 grams, and one plastic baggie
    containing 12.3 grams of methamphetamine. Elsewhere in the master bedroom, officers
    2
    found a backpack containing more sandwich baggies and a digital scale, another box of
    sandwich baggies, and a brake fluid canister with a hidden compartment.
    On the dining room table, officers found a digital scale, unopened boxes of
    sandwich baggies, and defendant’s prescription for medical marijuana. In the kitchen,
    officers found three iced tea cans with hidden compartments. One of the cans contained
    24 packages of cocaine each weighing approximately three and a half grams. Another of
    the cans contained 40 packages of cocaine base totaling approximately 150 grams. In a
    cabinet above the refrigerator, officers found jars of processed marijuana. Elsewhere in
    the kitchen, officers found more boxes of sandwich baggies and five pocket-sized digital
    scales.
    In the living room, officers found a beanie containing a plastic baggie holding
    three .40-caliber rounds. Under a nearby sofa table, officers found a digital scale and a
    bathroom cleaner canister with a false compartment containing 40 individual packages of
    cocaine base totaling 149 grams. The officers found six .45-caliber rounds in a plastic
    bag in a hutch. Finally, the officers searched defendant’s car. In the trunk, they found a
    notebook that appeared to be pay-owe sheets. In addition, they searched another car
    parked in the residence’s garage and found a full box of .45-caliber ammunition.
    After the search was completed, Sacramento Police Lieutenant Sameer Sood
    questioned defendant. Defendant claimed he stayed at the Center Parkway residence
    approximately three times a week but denied that he lived there. Defendant told the
    lieutenant, “Whatever is in the house is mine. I will ride for it.” Lieutenant Sood
    clarified, “So all the illegal stuff in the house is yours?” Defendant responded,
    “Whatever is in the house, I will take it. It’s all mine.” He then requested an attorney.
    Department of Motor Vehicles records showed that defendant updated his address to the
    Center Parkway residence in January 2016.
    Defendant was charged with possession of cocaine base for sale (Health & Saf.
    Code, § 11351.5) (count one); possession of cocaine for sale (Health & Saf. Code,
    3
    § 11351) (count two); possession of methamphetamine for sale (Health & Saf. Code,
    § 11378) (count three); misdemeanor possession of marijuana for sale (Health & Saf.
    Code, § 11359) (count four); two counts of possession of a firearm by a felon (§ 29800,
    subd. (a)(1)) (counts five and six); and possession of ammunition by a felon (§ 30305,
    subd. (a)(1)) (count seven). It was further alleged that defendant was personally armed
    with a firearm in the commission of counts one through three (§ 12022, subd. (c)).
    Finally, the information alleged that defendant had previously served a prison
    commitment (§ 667.5, subd. (b)).
    Following a trial, a jury found defendant guilty on all counts. The jury also found
    true all of the allegations that defendant was personally armed with a firearm. In a
    bifurcated proceeding, the trial court found the prior prison term allegation true.
    Defendant was sentenced to state prison for a total of 16 years four months, as follows:
    for count one, the upper term of four years plus five years for the personal arming
    enhancement; for count two, one year plus one year four months for the personal arming
    enhancement; for count three, eight months plus one year four months for the personal
    arming enhancement; for counts five through seven, eight months each; and for the prior
    prison commitment allegation, one year.
    DISCUSSION
    I
    Pitchess Motion
    On April 4, 2017 and April 5, 2017, defendant filed two identical Pitchess motions
    seeking the disclosure of the personnel records of three police officers pursuant to
    Evidence Code sections 1043 and 1045. Defendant sought review of the detective’s
    personnel record for material related to complaints or incidents involving falsification of
    evidence or testimony; discrimination on the basis of race, national origin, religion,
    gender, or sexual orientation; unlawful search and seizure; or any act involving moral
    4
    turpitude. The trial court granted defendant’s Pitchess motion based on a showing of
    good cause and conducted an in-camera hearing in the presence of county counsel and the
    custodian of records and determined that there was no discovery to disclose.
    Defendant requests that we review the sealed record of the in-camera hearing to
    determine whether the trial court complied with required procedures and whether it
    abused its discretion when it found no discoverable items. The Attorney General does
    not object to our independent review of the sealed transcript of the Pitchess hearing, as
    defendant requests.
    This court granted defendant’s request to augment the record to include a
    transcript of the in-camera Pitchess hearing. The transcript was augmented with the
    sealed transcript of the in-camera Pitchess hearing, wherein the trial court provided a
    detailed itemized summary of all pertinent documents it reviewed during the Pitchess
    hearing sufficient for meaningful appellate review. (See People v. Mooc (2001)
    
    26 Cal.4th 1216
    , 1228-1229 [to permit “meaningful appellate review,” the trial court
    must make a record of the documents examined by photocopying them, making a list of
    them, or stating on the record what documents it reviewed]; People v. Wycoff (2008)
    
    164 Cal.App.4th 410
    , 415-416 [conditionally reversing and remanding for a new Pitchess
    hearing in part because the custodian of records did not provide either the complete
    personnel file or a summary of the documents that were not presented for the court’s
    review].) Accordingly, our review is limited to the sealed record of the in-camera
    hearing on the Pitchess hearing.
    Sections 832.5, 832.7, and 832.8 and Evidence Code sections 1043 through 1045
    codify Pitchess v. Superior Court, supra, 
    11 Cal.3d 531
    , which recognized that “a
    criminal defendant may, in some circumstances, compel the discovery of evidence in the
    arresting law enforcement officer’s personnel file that is relevant to the defendant’s
    ability to defend against a criminal charge.” (People v. Mooc, supra, 26 Cal.4th at
    p. 1219.) If a defendant seeking to discover an officer’s personnel records shows good
    5
    cause, then the trial court examines all relevant information from the custodian of records
    “ ‘out of the presence and hearing of all persons except the person authorized [to possess
    the records] and such other persons [the custodian of records] is willing to have present’
    [citations].” (Id. at p. 1226; see Evid. Code, §§ 915, subd. (b), 1045, subd. (b).) “The
    trial court may not disclose complaints more than five years old, the ‘conclusions of any
    officer’ who investigates a citizen complaint of police misconduct, or facts ‘so remote as
    to make [their] disclosure of little or no practical benefit.’ (§ 1045, subd. (b);
    [Citation].)” (Warrick v. Superior Court (2005) 
    35 Cal.4th 1011
    , 1019.) “A trial court’s
    decision on the discoverability of material in police personnel files is reviewable under an
    abuse of discretion standard.” (People v. Jackson (1996) 
    13 Cal.4th 1164
    , 1220.)
    As requested, we have reviewed the sealed transcript of the in-camera proceeding
    in which the trial court questioned the custodian of records under oath regarding the three
    officers’ personnel records. Based on our review, we conclude the trial court did not
    abuse its discretion in finding that no materials subject to disclosure and responsive to
    defendant’s request existed.
    II
    Batson/Wheeler Motion
    The prosecutor used a peremptory challenge to excuse an African-American
    member of the jury venire. Defendant, who is African-American, challenged the
    prosecutor’s action under Batson/Wheeler. (Batson, supra, 
    476 U.S. 79
    ; People v.
    Wheeler (1978) 
    22 Cal.3d 258
    .) The trial court denied the motion, finding the prosecutor
    did not excuse the prospective juror based on her race.
    Defendant contends the trial court erred because the prosecutor’s reasons for
    removing the prospective juror were pretextual, and the court did not make a sincere and
    reasoned evaluation of the prosecutor’s reasons for striking the juror. We disagree.
    6
    A.     Background
    The trial court called 22 prospective jurors for questioning. During the trial
    court’s voir dire, prospective juror Ms. B. stated that she worked for the Department of
    Child Protective Services. She said that she does not get involved in criminal
    investigations or have contact with law enforcement officers in the course of her work.
    Ms. B. said that she has two cousins who are members of the Fairfield Police Department
    and a third relative who was becoming a member of the Fairfield Police Department, but
    her relationship with these individuals would not affect her ability to be fair. Ms. B.
    confirmed that she “would be okay . . . knowing that . . . [she] wouldn’t be determining
    what the law was or whether any punishment was appropriate.”
    Following the attorneys’ questioning, the parties began to exercise peremptory
    challenges. The prosecutor excused five jurors and defense counsel excused four jurors
    before the trial court called up additional prospective jurors for questioning. The trial
    court and attorneys conducted similar questioning of the new prospective jurors. After
    questioning, peremptory challenges resumed with defense counsel. Once each attorney
    had exercised their sixth challenge, the prosecutor passed. After the prosecutor passed,
    defense counsel excused another juror and the prosecutor passed once again. After the
    prosecutor’s second pass, defense counsel and the prosecutor each excused a juror. Then,
    the prosecutor moved to excuse Ms. B. Defense counsel immediately raised Batson-
    Wheeler.
    After a recess, the trial court asked defense counsel to explain her motion.
    Counsel explained that she was “making a motion . . . as to African-American jurors . . .
    [s]pecifically, as to Ms. B[.],” noting that the prosecutor had passed twice. After the trial
    court found a prima facie case, the prosecutor began to explain his reasons for excusing
    Ms. B. He stated, “First, I suppose I should state explicitly that I am not kicking her
    because of her perceived nationality or ethnicity.” The trial court interrupted to note that
    7
    another juror, who “appear[ed] to be African-American,” remained on the jury. The
    prosecutor continued: “As to the fact that I passed twice with her on the panel: The
    reason I passed is because I would have been satisfied to have her in the jury as so
    composed. [¶] When [defense counsel] . . . continued to exercise additional challenges
    completing the number of her challenges, I did at that point . . . feel . . . that I had a
    sufficient number of challenges that I could still be able to kick out or exercise challenges
    to new people, should new more objectionable people come in. And that’s . . . where the
    timing is coming from. [¶] As to Mrs. B[.] herself, the primary factor that I was
    considering was . . . I, over the lunch our [sic], looked at her . . . public Facebook
    account. And in her Facebook post was a post that I couldn’t make sense of. . . . [¶] I
    already did have some concerns, as I have had previous bad experience with CPS
    workers, on . . . juries before. But that’s not a determinative factor.”
    The prosecutor further explained that the concerning post on Ms. B.’s Facebook
    profile “was a screenshot of an e-mail that said: Under the law, there is a change of law
    . . . and send this to all your parolees: That in California, it’s no longer legal to ask
    somebody if they previously [have] been convicted of a felony. [¶] And then words to
    the effect of: So now there can’t be any further -- sort of dirt-bag excuses for not getting
    a job.” The prosecutor further explained: “I took it as sort of a very ambiguous post. I
    couldn’t understand if it was derogatory towards parolees for not having a job, if it was a
    pro-criminal justice reform of wanting parolees to . . . celebrating [sic] greater access to
    the job market . . . it did seem significant to me, and I thought it was going to cut strongly
    one way or the other. [¶] And, frankly, I waivered on my interpretation of it . . . going
    back and forth, trying to decide. It appeared to me that there was . . . ease of additional
    peremptories for me to use, I thought since I can’t figure it out, I can’t understand what it
    means, it could very well be exhibiting an anti law enforcement bias. [¶] And since
    [defense counsel] has exercised so many additional challenges, I will have extra anyway.
    8
    Then I thanked and excused her rather than having her on the panel and regret it the next
    day.”
    Defense counsel pointed out that Ms. B. and defendant were both African-
    American, that Ms. B. was the second African-American juror excused by the prosecutor,
    and that Ms. B. made no statements that distinguished her from any other juror. Defense
    counsel also admitted that she had not researched Ms. B. nor her Facebook post. The
    trial court denied the motion, ruling: “I must say this is a rather unorthodox Wheeler
    motion in that information upon which Counsel relies upon is extra judicial, nonetheless,
    there is probably nothing inappropriate relying upon information that was outside of the
    record in terms of one’s preference regarding the selection of jurors. [¶] Accepting the
    representation that Counsel has made -- and I note, no [] reason to doubt his
    representation in terms of his investigation of this juror – I’m not sure, Counsel you do
    either -- it does appear that he has a race neutral reason to exclude this juror,
    notwithstanding the fact that he did pass before. [¶] . . . [¶] But . . . I do find that [the
    prosecutor] has sufficiently articulated a race neutral basis to exclude Ms. B[.]” The
    prosecutor asked the trial court for permission to include a printout of the Facebook post
    in the court’s file, which the court allowed. Outside the presence of the jury, the
    prosecutor offered “a Facebook image from a juror” as a court exhibit for the trial court’s
    file “to preserve it.” The trial court accepted the document as a court exhibit.
    B.    Analysis
    A prosecutor may not use peremptory challenges to remove prospective jurors
    solely because they are members of an identifiable racial group. (Batson, supra, 476 U.S.
    at p. 89; People v. Wheeler, supra, 22 Cal.3d at pp. 265-266, 272.) The three-step inquiry
    under Batson/Wheeler is well established. “First, the trial court must determine whether
    the defendant has made a prima facie showing that the prosecutor exercised a peremptory
    challenge based on race. Second, if the showing is made, the burden shifts to the
    9
    prosecutor to demonstrate that the challenges were exercised for a race-neutral reason.
    Third, the court determines whether the defendant has proven purposeful discrimination.
    The ultimate burden of persuasion regarding racial motivation rests with, and never shifts
    from, the opponent of the strike. [Citation.]” (People v. Lenix (2008) 
    44 Cal.4th 602
    ,
    612-613 (Lenix).)
    “A prosecutor asked to explain his conduct must provide a ‘ “clear and reasonably
    specific” explanation of his “legitimate reasons” for exercising the challenges.’
    [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial”
    reason, if genuine and neutral, will suffice.’ [Citation.] A prospective juror may be
    excused based upon facial expressions, gestures, hunches, and even for arbitrary or
    idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any
    number of bases to select jurors, a legitimate reason is one that does not deny equal
    protection. [Citation.] Certainly a challenge based on racial prejudice would not be
    supported by a legitimate reason.” (Lenix, supra, 44 Cal.4th at p. 613.)
    “At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to
    whether the trial court finds the prosecutor’s race-neutral explanations to be credible.’ ”
    (Lenix, 
    supra,
     44 Cal.4th at p. 613.) “When the prosecutor’s stated reasons are both
    inherently plausible and supported by the record, the trial court need not question the
    prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either
    unsupported by the record, inherently implausible, or both, more is required of the trial
    court than a global finding that the reasons appear sufficient.” (People v. Silva (2001)
    
    25 Cal.4th 345
    , 386.)
    “Review of a trial court’s denial of a Wheeler/Batson motion is deferential,
    examining only whether substantial evidence supports its conclusions. [Citation.] ‘We
    review a trial court’s determination regarding the sufficiency of a prosecutor’s
    justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.]
    We presume that a prosecutor uses peremptory challenges in a constitutional manner and
    10
    give great deference to the trial court’s ability to distinguish bona fide reasons from sham
    excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to
    evaluate the nondiscriminatory justifications offered, its conclusions are entitled to
    deference on appeal. [Citation.]’ [Citation.]” (Lenix, supra, 44 Cal.4th at pp. 613–614.)
    Here, substantial evidence supports the trial court’s denial of defendant’s
    Batson/Wheeler motion. It shows the prosecutor excused Ms. B. for genuine reasons
    unrelated to race. He feared Ms. B. would be sympathetic to defendant because of a post
    she shared on social media regarding parolees and struggled with how to interpret the
    post. He also stated that he “had previous bad experience with CPS workers, on . . .
    juries before. But that’s not a determinative factor.” These reasons are inherently
    plausible and are supported by the record. Indeed, defendant points to nothing in the
    record to contradict the prosecutor’s concerns. Even if the prosecutor was mistaken
    about his impression of Ms. B.’s Facebook post, that is an insufficient ground to reverse
    based on Batson/Wheeler. (People v. Reynoso (2003) 
    31 Cal.4th 903
    , 924.) Defendant
    likewise does not direct this court to anything in the record that contradicts the two
    nondiscriminatory reasons given for peremptorily challenging Ms. B.
    Defendant argues that the trial court failed to evaluate whether the prosecutor’s
    reasons for excusing Ms. B. were subjectively genuine. He contends the trial court
    “simply rubber-stamp[ed] the prosecutor’s reasons.” We disagree. Because the
    prosecutor offered race-neutral reasons for excusing Ms. B. and those reasons were
    inherently plausible and supported by the record, the trial court was not required to
    question the prosecutor or make detailed findings. The record demonstrates that the trial
    court engaged in a sincere evaluation of the prosecutor’s reasons. For example, the trial
    court referred to the prosecutor’s reliance on Ms. B.’s Facebook post in his ruling on
    defendant’s Batson/Wheeler motion, reasoning that there was “nothing inappropriate
    relying upon information that was outside of the record in terms of one’s preference
    regarding the selection of jurors.” “Even a brief reference to the prosecutor’s reasons and
    11
    the trial court’s own observations of the challenged jurors can constitute a sincere and
    reasoned evaluation of the credibility of the prosecutor’s justifications.” (People v. Fiu
    (2008) 
    165 Cal.App.4th 360
    , 399.) Additionally, the record demonstrates that the trial
    court was actively listening to the prosecutor’s reasons and engaged in the
    Wheeler/Batson inquiry. For example, when the prosecutor was addressing Ms. B.’s
    race, the trial court interrupted to specify that another juror who appeared to be the same
    race as Ms. B. remained on the jury. These observations demonstrate that the trial court
    was considering the totality of the circumstances in ruling on the Batson motion and was
    not merely accepting the prosecutor’s reasons.
    The Supreme Court has expressly rejected a requirement that the trial court must
    “explain in detail why it is accepting the proffered reasons for a challenged excusal . . . .”
    (People v. Mai (2013) 
    57 Cal.4th 986
    , 1049, fn. 26; see also People v. Jackson, 
    supra,
    13 Cal.4th at p. 1198 [“Wheeler does not require the trial court to conduct further inquiry
    into the prosecutor’s race-neutral explanations if, as here, it is satisfied from its
    observations that any or all of them are proper”].) Here, the trial court explained that it
    accepted the prosecutor’s representation about discovering Ms. B.’s Facebook post and
    the reasons the prosecutor initially passed twice. The trial court stated it had no reason to
    doubt the prosecutor’s representation, and defense counsel offered the trial court no such
    reason either. This amounted to evaluating the prosecutor’s credibility and satisfied the
    third step of the Batson procedure. (See Mai, at p. 1050 [where “the trial court then made
    a ruling, pursuant to step three, that the reasons expressed were valid . . ., we too may
    simply proceed as though this is a step three case, analyzing whether the trial court
    properly accepted the race-neutral reasons given by the prosecutor”].)
    In sum, the record shows the court made a sufficient attempt to evaluate the
    prosecutor’s reasons for excusing Ms. B. and to express its findings. It was not required
    to make a detailed statement because the prosecutor’s reasoning was plausible and
    supported by the record. The court heard the prosecutor’s reasons and found them to be
    12
    genuine. It was thus not required to express its findings in a detailed manner. We thus
    conclude the court did not abuse its discretion in denying defendant’s Batson/Wheeler
    motion.
    III
    Admission of Photographs
    Defendant contends the trial court abused its discretion by admitting “photographs
    depicting appellant with cash and guns.” He contends this purported evidence was more
    prejudicial than probative under Evidence Code section 352. Defendant does not identify
    which exhibits he contends were erroneously admitted, but the Attorney General notes
    that “[t]he trial court admitted two photographs of cash (People’s Exhibits 125 and 127),
    one photograph of [defendant] holding cash (People’s Exhibit 124) and two photographs
    purportedly depicting a Glock handgun (People’s Exhibits 128 and 129).” The Attorney
    General contends that to the “extent [defendant] challenges admission of photographs
    depicting cash, he failed to object to those photographs during trial and has forfeited this
    claim.” Further, the Attorney General argues that the trial court did not abuse its
    discretion in admitting the two photographs because they were strong circumstantial
    evidence defendant committed the charged offenses, and the evidence was not more
    prejudicial than probative. We agree.
    The prosecutor introduced photographs extracted from one of defendant’s cell
    phones. People’s Exhibit 124 depicted defendant “holding cash.” People’s Exhibit 125
    depicted what “[a]ppear[d] to be a large amount of U.S. currency.” Defendant did not
    object to either photograph. The prosecutor also introduced People’s Exhibit 127,
    described as “a separate photograph of U.S. currency.” Defendant did not object to this
    photograph. Accordingly, defendant’s objection to admission of these three photographs
    of cash as unduly prejudicial has been forfeited and cannot be raised on appeal. (Evid.
    Code, § 353.)
    13
    Subsequently, defense counsel requested a side bar and asked, “that the Court
    exclude image[s] of firearms that had been found.” In summarizing the side bar
    discussion for the record, defense counsel explained that she objected based on
    foundation and under section 352: “Based on the fact that there are firearms involved in
    this case, we cannot tell if these are the same firearms as those that are found in the
    house; therefore, they are more prejudicial than probative.” The trial court stated that it
    had overruled the objection because the photograph was discovered “on a phone that is
    attributed to the defendant” and “arguably” depicts “the exact same gun” found under
    defendant’s bed. The trial court reasoned, “[T]hat would put the defendant in possession
    of the same firearm that was seized. And it would go not only to the issue of possession,
    but it would also be relevant to the defendant’s knowledge.”
    After the sidebar, the prosecutor next introduced People’s Exhibit 128 and
    People’s Exhibit 129. Exhibit 128, a photograph, was not described on the record, but
    according to the exhibit list, Exhibit 128 depicted a “BLACK SEMI-AUTOMATIC
    HANDGUN WITH CLIP BESIDE IT AT RIGHT LYING ON CAMOU[F]LAGE
    CLOTH ARTICLE.” The investigator explained that Exhibit 128 was extracted from
    defendant’s cell phone but its origin was unknown. Exhibit 129 was a photograph of “a
    Glock.” Exhibit 129’s origin was also unknown.
    “A trial court has ‘considerable discretion’ in determining the relevance of
    evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code
    section 352 to exclude even relevant evidence if it determines the probative value of the
    evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An
    appellate court reviews a court’s rulings regarding relevancy and admissibility under
    Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a
    court’s ruling on such matters unless it is shown “ ‘the trial court exercised its discretion
    in an arbitrary, capricious, or patently absurd manner that resulted in a manifest
    miscarriage of justice.” [Citation.]’ ” (People v. Merriman (2014) 
    60 Cal.4th 1
    , 74.)
    14
    “The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which
    uniquely tends to evoke an emotional bias against the defendant as an individual and
    which has very little effect on the issues. In applying section [Evidence Code section]
    352, ‘prejudicial’ is not synonymous with ‘damaging.’ ” (People v. Karis (1988)
    
    46 Cal.3d 612
    , 638.)
    We find no abuse of the court’s wide discretion here. Relevant evidence is
    evidence, “including evidence relevant to the credibility of a witness or hearsay declarant,
    having any tendency in reason to prove or disprove any disputed fact that is of
    consequence to the determination of the action.” (Evid. Code, § 210.) The two
    photographs of guns extracted from defendant’s cell phone were relevant because it was
    strong circumstantial evidence tending to show defendant knowingly possessed the same
    Glock on the day the police searched his residence. (See People v. Carpenter (1999)
    
    21 Cal.4th 1016
    , 1052 [where evidence did not establish the gun necessarily was the
    murder weapon it showed defendant possessed a gun that might have been the murder
    weapon and was relevant and admissible as circumstantial evidence defendant committed
    the charged offenses].) Here, the prosecution’s theory was that defendant knowingly
    possessed the Glock handgun found under his mattress because he had pictures of the
    same gun on his cell phone. To this end, the photographs had significant probative value
    in establishing that the nine-millimeter Glock handgun underneath the mattress belonged
    to him. In comparison to the probative value of the photographs, any prejudicial effect
    was minimal. For instance, there is no indication that the photographs depicted defendant
    with the gun, holding the gun, or firing the gun. This minimized the likelihood that the
    jury would have reacted viscerally to the images. In addition, images of the multiple
    guns that were recovered from defendant’s residence were already admitted into
    evidence, further reducing any emotional reaction the jury may have had upon viewing
    the photographs. Therefore, the photographs were not unduly prejudicial.
    15
    Finally, defendant argues that admission of the photographs was cumulative
    because there was “expert testimony on this issue.” Specifically, he purports this
    evidence was cumulative to expert testimony regarding the phone’s “location analysis, as
    well as his analysis of drug-dealing text messages contained on the phone.” Defendant
    does not explain how this expert analysis of the phone was cumulative to evidence
    defendant had images that possibly matched one of the guns found in the home on his
    phone. No expert testified about whether the gun in the photographs was identical to the
    gun defendant possessed. This was a factual matter for the jury to resolve. Accordingly,
    the photographs were not cumulative of expert testimony.
    The trial court did not abuse its discretion by admitting the gun photographs.
    IV
    Senate Bill 136
    In supplemental briefing, defendant claims his prior prison term enhancements
    must be vacated based on the retroactive application of Senate Bill 136. The People
    agree.
    We agree with the parties that the amendment to Senate Bill 136 should be applied
    retroactively in this case. Whether a particular statute is intended to apply retroactively is
    a matter of statutory interpretation. (See People v. Superior Court (Lara) (2018)
    
    4 Cal.5th 299
    , 307 [noting “the role of a court is to determine the intent of the
    Legislature”].) Generally speaking, new criminal legislation is presumed to apply
    prospectively unless the statute expressly declares a contrary intent. (§ 3.) However,
    where the Legislature has reduced punishment for criminal conduct, an inference arises
    under In re Estrada (1965) 
    63 Cal.2d 740
     “ ‘that, in the absence of contrary indications, a
    legislative body ordinarily intends for ameliorative changes to the criminal law to extend
    as broadly as possible, distinguishing only as necessary between sentences that are final
    and sentences that are not.’ [Citations.]” (Lara, at p. 308.) “A new law mitigates or
    16
    lessens punishment when it either mandates reduction of a sentence or grants a trial court
    the discretion to do so. [Citation.]” (People v. Hurlic (2018) 
    25 Cal.App.5th 50
    , 56.)
    Here, Senate Bill 136 narrowed who was eligible for a section 667.5, subdivision
    (b) prior prison term enhancement, thus rendering ineligible many individuals, including
    defendant who served a prior prison sentence based on a prior conviction for the sale,
    transportation, or offer to sell a controlled substance (Health & Saf. Code, § 11352, subd.
    (a)).
    Under these circumstances, we conclude Estrada’s inference of retroactive
    application applies. (See, e.g., People v. Nasalga (1996) 
    12 Cal.4th 784
    , 797-798
    [applying Estrada inference of retroactivity to legislative changes to § 12022.6, subds. (a)
    and (b) enhancements].) Accordingly, we will direct the trial court to strike defendant’s
    prior prison term enhancement and “remand the matter for resentencing to allow the court
    to exercise its sentencing discretion in light of the changed circumstances.” (People v.
    Jennings (2019) 
    42 Cal.App.5th 664
    , 682.)
    DISPOSITION
    The trial court is directed to strike defendant’s section 667.5, subdivision (b) prior
    prison term enhancement. In all other respects, the judgment is affirmed. The matter is
    remanded for resentencing.
    HULL, J.
    We concur:
    RAYE, P. J.
    RENNER, J.
    17