People v. Naranjo CA2/6 ( 2021 )

Filed 3/29/21 P. v. Naranjo CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299429
(Super. Ct. No. BA473763)
Plaintiff and Respondent, (Los Angeles County)
v.
FERNANDO NARANJO,
Defendant and Appellant.
Fernando Naranjo appeals from the judgment after a
jury convicted him of first degree premeditated murder (Pen.
Code,1 §§ 187, subd. (a), 189, subd. (a)) and found true an
allegation that he personally and intentionally discharged a
firearm causing death (§ 12022.53, subd. (d)). The trial court
sentenced him to 25 years to life in state prison on the murder
and a consecutive 25 years to life on the firearm enhancement.
Naranjo contends the judgment should be reversed
because the trial court erred when it: (1) denied his
1 Unlabeled statutory references are to the Penal Code.
Batson/Wheeler2 motion, (2) permitted a detective to identify him
in surveillance videos, (3) excluded portions of his police
interview from the jury, (4) gave an incomplete jury instruction
on imperfect self-defense, and (5) instructed the jury on flight.
He further contends reversal is required because: (6) the
prosecutor committed misconduct, (7) defense counsel provided
ineffective assistance, and (8) these errors, considered
cumulatively, denied him a fair trial. Alternatively, Naranjo
argues the matter should be remanded for resentencing: (9)
because the court abused its discretion when it declined to strike
the firearm enhancement, (10) to permit the court to impose a
lesser firearm enhancement, and (11) because the court declined
to order a probation report prior to sentencing. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Naranjo and J.Co. were outside a 99 Cents Store in
Los Angeles. Naranjo retrieved something from his car, walked
up to A.M., and said, “What’s up, Guerito?” J.Co. saw that
Naranjo was holding a gun, and ran across the street. Naranjo
shot A.M. once in the head and walked away, taking off the vest
he had been wearing as he walked down the street.
J.Ce. was working across the street from the
shooting. He witnessed a man pull a gun from his waistband, say
“[y]ou are going to die,” and fire one shot. The man then turned
and walked slowly down the street. He threw his vest over a
fence as he walked.
When police arrived, J.Ce. and J.Co. each told the
officers that the shooter had stashed a vest that may have a gun
inside. An officer later found the vest wedged in a nearby gate.
2 Batsonv. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
2
The next day, police arrested Naranjo at S.M.’s
apartment. J.Co. later identified Naranjo as the shooter. J.Co.
also told police that Naranjo may have left his gun at S.M.’s
apartment. Detective Eloy Ochoa interviewed Naranjo, who told
him where the gun was hidden. When police retrieved it, it had
four unfired bullets and one fired cartridge inside.
Ballistics revealed that the bullet recovered from
A.M.’s head had been fired from the gun found in S.M.’s
apartment. A mixture of three DNA profiles was on the gun.
Naranjo’s DNA was the primary contributor to the mixture.
Surveillance cameras at several nearby businesses
covered the scene of the shooting. Video footage from one of the
cameras showed A.M. riding his bicycle toward the 99 Cents
Store and Naranjo running down the opposite side of the street.
Footage from another camera showed Naranjo shoot A.M. in the
head and walk away. Footage from a third also captured the
shooting.
Detective Ochoa showed a six-pack photo array to
witnesses. Three men who were working nearby the 99 Cents
Store on the day of the shooting, including J.Ce., viewed the
photo array, but none was able to identify Naranjo. Two of the
witnesses believed another man resembled the shooter.
When Detective Ochoa interviewed Naranjo, he said
he had been threatened by “Guero” and “Jorge”: “[T]hey’ve been
threatening me. And like I said, if I didn’t do it, they were going
to fuck me over anyway.” Detective Ochoa understood “do it”
meant shooting A.M. Naranjo claimed that he had reported
Guero and Jorge’s threats to police on the morning of A.M.’s
shooting, but the detective could not corroborate that claim.
3
DISCUSSION
Batson/Wheeler motion
Naranjo first contends the judgment should be
reversed because the prosecutor’s reasons for excluding seven
Latinx jurors were pretextual. We disagree.
1. Legal framework
The state and federal constitutions forbid prosecutors
from using peremptory challenges to remove jurors on account of
race.3 (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22
Cal.3d at pp. 276-277.) To succeed on a Batson/Wheeler motion, a
defendant must first “make a prima facie showing that the
prosecut[or] exercised a challenge based on impermissible
criteria.” (People v. Manibusan (2013) 58 Cal.4th 40, 75
(Manibusan).) If the defendant does so, the prosecutor must
“offer nondiscriminatory reasons for the challenge.” (Ibid.)
These reasons “‘need not support a challenge for cause,’” and may
include such “‘“trivial”’” things as “facial expressions, gestures,
[and] hunches.” (People v. Lenix (2008) 44 Cal.4th 602, 613
(Lenix), italics omitted.) The trial court must then determine
whether the prosecutor’s proffered reasons are “credible and
whether, in light of all relevant circumstances, the defendant has
shown purposeful race discrimination.” (Manibusan, at p. 75.)
“‘The ultimate burden of persuasion regarding discriminatory
motivation rests with, and never shifts from, the defendant.’
[Citation.]” (Ibid., alterations omitted.)
“On appeal, we review the trial court’s
determination[s] deferentially, ‘examining only whether
3 Code of Civil Procedure section 231.7, which becomes
effective in jury trials commencing January 1, 2022, does not
apply. (Code Civ. Proc., § 231.7, subd. (i).)
4
substantial evidence supports its conclusions. [Citation.]’
[Citation.]” (Manibusan, supra, 58 Cal.4th at p. 76.) “‘We
presume that a prosecutor uses peremptory challenges in a
constitutional manner[,] and give great deference to the trial
court’s ability to distinguish bona fide reasons from sham
excuses. [Citation.]’” (Ibid.) We will defer to the court’s rulings
“‘[s]o long as [it] makes a sincere and reasoned effort to evaluate
the nondiscriminatory justifications offered.’” (Ibid.) If the court
does so, and “the prosecutor’s reasons for excusing [a] juror are
neither contradicted by the record nor inherently implausible,”
we will reject a defendant’s Batson/Wheeler challenge on appeal.
(People v. Reynoso (2003) 31 Cal.4th 903, 929 (Reynoso).)
2. Prospective Juror 7134
Prospective Juror 7134 had no prior jury experience.
Neither the prosecutor nor defense counsel asked her any direct
questions, nor did she volunteer any answers to the general
questions asked of her venire. The prosecutor said she excused
this juror “mainly due to her demeanor.” She “seemed very . . .
quiet” and “was not really engaging . . . when I was . . . asking
general questions of the group.” The prosecutor was also
concerned that, based on the potential juror’s lack of response to
questions about being a lone holdout, that “maybe she [was] one
of those people who would kind of just follow the group.”
Naranjo claims that the prosecutor’s “‘[d]emeanor-
based explanation[]’ [was] ‘particularly susceptible to serving as
[a] pretext[] for discrimination.’” (Citing United States v.
McMath (7th Cir. 2009) 559 F.3d 657, 665-666.) But a prosecutor
may excuse a juror based on their demeanor during voir dire.
(People v. DeHoyos (2013) 57 Cal.4th 79, 109 (DeHoyos).) And
they may “legitimately choose to shy away from . . . unduly timid
5
jurors.” (People v. Duff (2014) 58 Cal.4th 527, 546 (Duff).) This is
true even if that timidness is “not explicitly confirmed by the
record.” (People v. Mai (2013) 57 Cal.4th 986, 1052 (Mai).) So
long as the record does not contradict the prosecutor’s
observations of the potential juror’s demeanor—as is the case
here—we cannot say the trial court erred. (Ibid.)
3. Prospective Juror 7584
The prosecutor said she excused Prospective Juror
7584 due to “some language restrictions.” When the trial court
asked whether the prosecutor inquired of the prospective juror’s
language ability, the prosecutor replied that her decision was
“just based on [the juror’s] responses.” She continued: “I don’t
think it rose to the level of her being unable to [serve]. My
concern was there could have been some type of restriction that
could arise from that, and so to be safe, I chose to kick her.”
Difficulty speaking or understanding the English
language is a permissible, race-neutral reason for a peremptory
challenge. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 107-
108 (Jurado); People v. Ayala (2000) 24 Cal.4th 243, 266-267
(Ayala).) Naranjo claims, however, that “there was no indication
[that Prospective Juror 7584] had any language issues when she
answered the [trial] court’s questions.” But neither the court nor
defense counsel contradicted the prosecutor’s description of the
prospective juror’s language abilities during voir dire. That
suggests the description was accurate.
(People v. Adanandus (2007) 157 Cal.App.4th 496, 510
(Adanandus).)
4. Prospective Juror 3570
Prospective Juror 3570 was a single “young woman”
who worked as an assistant softball coach and had no prior jury
6
experience. The prosecutor exercised a peremptory challenge
against her due to a perceived “lack of life experience.” The
prosecutor explained: “She, you know, didn’t have a—necessarily
a career yet, is single, no children, and she just struck me as a
person maybe lacking enough life experience, I think, to—for
me—to serve on this jury or that I would like on this jury.”
Naranjo claims the prosecutor’s reason for dismissing
Prospective Juror 3570 was pretextual because “it is implausible
that the prosecutor would have excused every single, childless[]
juror[,] regardless of race.” But the prosecutor emphasized that
she excused this potential juror based on her lack of life
experience. And “[a] potential juror’s youth and apparent
immaturity are race-neutral reasons that can support a
peremptory challenge.” (People v. Lomax (2010) 49 Cal.4th 530,
575; see also DeHoyos, supra, 57 Cal.4th at p. 108.)
Alternatively, Naranjo claims that the prosecutor’s
reason for challenging Prospective Juror 3570 was pretextual
because she did not challenge seven other jurors that purportedly
shared her characteristics. But we can undertake comparative
juror analysis for the first time on appeal only if “the record is
adequate to permit the urged comparisons.” (Lenix, supra, 44
Cal.4th at p. 622.) The pages of the record Naranjo cites in
support of this claim in his opening brief do not permit those
comparisons, lacking, at various points, information about each
juror’s race, marital status, or children.4
4 Naranjo attempts to support his comparative juror
analysis claim with fuller argument and better citations to the
record in his reply brief. We do not consider these belated
arguments here. (People v. Rangel (2016) 62 Cal.4th 1192, 1218
(Rangel).)
7
5. Prospective Juror 2339
When the prosecutor asked whether anyone felt that
they could not convict if they did not know why a defendant had
committed a crime, Prospective Juror 2339 said, “It would be
hard for me [¶] . . . [¶] because without the motivation, maybe I
would feel that your accusation—the crime that you’re accusing
the person of is not the right crime.” The trial court then asked if
the prospective juror saw someone hit another person with a bat,
“in order to convict [them], are you going to want to know why
[they] took a bat to that person?” The juror said, “[I]t’s unfair to
the jurors. It’s unfair to us because we don’t [¶] . . . [¶] hear their
position—I would like to know the motive.”
The trial court clarified: “[Y]ou couldn’t convict
because you would want to know why?” The prospective juror
responded that he “would make a decision, but you make me
doubt too much. So I guess it’s their job to move me to guilty or
not guilty.” The court then reiterated that it would instruct
jurors that motive is not an element of murder. The juror said,
“Most likely, if I don’t have the motive, I would say not guilty.”
The prosecutor explained her decision to excuse
Prospective Juror 2339: “I had some concern over his responses
to some of the court’s questions having to do with motive, and my
concern was that he would not be an appropriate juror on this
case for that reason.” The court responded, “Actually, I was
surprised you didn’t raise it for cause with regard to that person.”
The prosecutor replied that she did not believe “it rose to the
level of cause, but [she] did make note of it for a peremptory.”
Naranjo claims the prosecutor’s reason for
challenging Prospective Juror 2339 was pretextual because the
juror’s answers did not reflect “an unwillingness to follow the
8
law” on motive. But he repeatedly stated his desire to know the
defendant’s motives, which provides substantial evidence to
support a finding he was reluctant to follow the law. (People v.
Smith (2018) 4 Cal.5th 1134, 1148-1150, 1155-1158.) And a
potential juror’s reluctance to follow the law is a “valid, race-
neutral reason[] for exercising a peremptory challenge.”
(People v. Smith (2019) 32 Cal.App.5th 860, 873.)
6. Prospective Juror 2722
The prosecutor said she excused Prospective Juror
2722 based on his “very expressive” appearance: “He had a lot of
tattoos; not that that is good or bad, but it caused me to wonder if
he does have any, umm, differing views about things sort of
outside the, like, societal norms on some issues.”
Naranjo claims we should reject the prosecutor’s
proffered justification for excusing this prospective juror because
“the court did not make any specific findings regarding whether
. . . it was appropriate for the prosecutor to challenge the juror
because he had tattoos and his ‘outward appearance was very
expressive.’” But a prospective juror’s “unconventional
appearance” can provide a race-neutral basis for a peremptory
challenge. (People v. Ward (2005) 36 Cal.4th 186, 202.) “It
matters not that another prosecutor would have chosen to leave
the prospective juror on the jury.” (Reynoso, supra, 31 Cal.4th at
p. 924.) “Nor does it matter that the prosecutor, by peremptorily
excusing [people with unconventional appearances], may be
passing over any number of conscientious and fully qualified
potential jurors.” (Ibid.) “All that matters is that the
prosecutor’s reason for exercising the peremptory challenge is
sincere and legitimate, legitimate in the sense of being
nondiscriminatory.” (Ibid.)
9
The trial court here concluded that it was. And we
must defer to that conclusion so long as the court undertook a
sincere evaluation of the prosecutor’s justifications for excusing
jurors. (Manibusan, supra, 58 Cal.4th at p. 76.) Naranjo makes
no claim that the court failed to undertake such an evaluation.
7. Prospective Juror 5992
Defense counsel asked Prospective Juror 5992’s
venire whether any of them would be inclined to change their
decision to go along with the group if they were the lone holdout.
Prospective Juror 5992 replied, “I would think that maybe I’m
not understanding, and because [if] 99 percent of everyone else is
sticking to one side, then I probably have it wrong.” Counsel
then asked whether the prospective juror would stick with it or
“go along with the group” if, after further discussion, she still felt
her decision was right. She answered, “I would probably still go
with the group.”
The trial court explained that jurors should make an
independent decision based on the evidence and deliberations. If,
after deliberations, a juror still believed that they were right,
they should stick to their decision, but if they genuinely changed
their mind, they should change their decision. The court then
asked jurors whether they would be able to “stick by [their]
decision[s].” Prospective Juror 5992 said she would. The
prosecutor nevertheless excused this prospective juror because
she was not “entirely convinced” that she would follow the court’s
instructions.
Prosecutors may excuse jurors who appear to be
“followers.” (Duff, supra, 58 Cal.4th at p. 546.) Naranjo claims
this rationale could not have applied to Prospective Juror 5992
because the prosecutor did not excuse another juror who similarly
10
indicated a willingness to “‘go with the other jurors.’” But on the
pages cited in his brief, two prospective jurors offered answers
similar to those offered by Prospective Juror 5992. His attorney
excused one of them, while the prosecutor excused the other.
Naranjo’s attempt to show the prosecutor’s reason was pretextual
accordingly fails.
8. Prospective Juror 0939
Prospective Juror 0939 had to be prompted by the
trial court to provide his initial information. He did not volunteer
any additional information, and was not directly asked any other
questions.
The prosecutor said she excused Prospective Juror
0939 because “[h]is responses to the initial questions . . . were
difficult . . . to understand.” When the court asked for
clarification, the prosecutor said that the prospective juror’s
accent “made it difficult for [her] to understand.” She also noted
that he “ha[d] to ask for questions to be repeated before he
answered them, which indicated . . . there could be maybe some
type of a language restriction there.”
A juror’s difficulty speaking or understanding the
English language is a race-neutral reason for exercising a
peremptory challenge. (Jurado, supra, 38 Cal.4th at pp. 107-108;
Ayala, supra, 24 Cal.4th at pp. 266-267.) Naranjo claims that the
prosecutor could not have relied on this reasoning because
neither the trial court nor defense counsel had any trouble
understanding Prospective Juror 0939. But when reviewing the
denial of a Batson/Wheeler motion, our role is to determine
whether substantial evidence supports the trial court’s findings.
(Manibusan, supra, 58 Cal.4th at p. 76.) Here, the court had to
prompt Prospective Juror 0939 for his initial answers. And when
11
the prosecutor described why she excluded him from the jury
panel, neither the court nor defense counsel contradicted her,
suggesting her description was accurate. (Adanandus, supra, 157
Cal.App.4th at p. 510.) We thus cannot say that the trial court
erred when it accepted the prosecutor’s reason for excluding this
juror. (Mai, supra, 57 Cal.4th at p. 1052.) Naranjo’s
Batson/Wheeler challenge accordingly fails.
Surveillance video identifications
Naranjo next contends the trial court erred when it
permitted Detective Ochoa to identify him in the surveillance
videos played at trial. But Naranjo did not object to the
identifications during the proceedings below. His contention is
forfeited. (People v. Huggins (2006) 38 Cal.4th 175, 236; see Evid.
Code, § 353, subd. (a).) And even if it weren’t, Naranjo has not
shown that the court abused its discretion when it permitted
Detective Ochoa to identify him in the videos. (Cf. People v. Leon
(2015) 61 Cal.4th 569, 600 (Leon) [admission of identification
evidence reviewed for abuse of discretion].)
1. Background
At trial, the prosecutor played surveillance video
footage that showed the shooting of A.M. When Detective Ochoa
began to describe the location and perspective of the first video,
Naranjo objected “to publication without foundation.” He did not
object when the detective subsequently identified J.Co. in the
video, however. The prosecutor then showed a portion of video
that depicted “a person on the opposite side of the street riding a
bicycle” and asked the detective if he had “an opinion as to who
that person [was].” Naranjo objected on foundation grounds. The
trial court asked Detective Ochoa to explain how he recognized
that person. The detective said that he “believe[d] th[e] person in
12
the upper left-hand corner [of the video] to be the victim riding
his bicycle” because that person “appear[ed] to be wearing the
same clothing that was found—or at least the tank top that was
found . . . at the crime scene.”
Detective Ochoa later described a person running
down the opposite side of the street from where the victim had
ridden his bicycle. When the prosecutor asked if the detective
had an opinion as to the identity of that person, he said that he
believed it was Naranjo based on his facial hair, hairstyle, and
mannerisms. He also agreed with the prosecutor that the
person’s clothes appeared to be “consistent with the clothing
descriptions that were provided by the witness[es] in this case.”
Naranjo did not object.
When Detective Ochoa identified A.M., J.Co., and
Naranjo in a second video, Naranjo again did not object. But
when the detective described what “appear[ed] to be the victim”
standing in front of the 99 Cents Store, Naranjo objected on
foundation grounds. The trial court admonished the jury: “The
video will speak for itself, ladies and gentlemen. You can
interpret it as you wish but based on what the [detective] stated
that it appears to be based on his knowledge of the case.”
Detective Ochoa identified A.M., J.Co., and Naranjo
in a third video. He again explained that he based his
identifications on his knowledge of the case and having viewed
the different videos. He also considered witnesses’ statements,
which corroborated what he had seen in the videos. Naranjo did
not object to these identifications.
2. Analysis
Citing the secondary evidence rule, Naranjo first
claims that Detective Ochoa’s testimony was inadmissible to
13
prove the contents of the surveillance video. But that rule does
not apply where, as here, the video itself was admitted into
evidence and the purpose of the witness’s testimony was to
“highlight important details in [it].” (People v. Son (2020) 56
Cal.App.5th 689, 696.)
Naranjo next claims that Detective Ochoa’s
identification was an improper opinion on the ultimate issue of
guilt. (See People v. Vang (2011) 52 Cal.4th 1038, 1048 [witness
may not opine on defendant’s guilt].) But a nonexpert witness
“may offer opinion testimony if it is rationally based on the
witness’s perception and helpful to a clear understanding of
[their] testimony.” (Leon, supra, 61 Cal.4th at p. 601; see Evid.
Code, § 800.) And identity is “‘a proper subject of nonexpert
opinion.’ [Citations.]” (Leon, at p. 601, alterations omitted.)
Indeed, court decisions “have long upheld admission of testimony
identifying defendants in surveillance footage or photographs.”
(Ibid.)
Detective Ochoa’s testimony easily met the Leon
standards for admission. First, the detective explained that he
was able to identify Naranjo in the surveillance videos based on
his personal knowledge of Naranjo’s appearance. That he
obtained that knowledge after the murder of A.M. rather than
before is irrelevant. (Leon, supra, 61 Cal.4th at p. 601.) Second,
Detective Ochoa’s opinion did not “invade the province of the trier
of fact” because it was proffered as “an aid in the determination
of the ultimate question of the identity of the culprit.” (People v.
Perry (1976) 60 Cal.App.3d 608, 615.) That was especially true
here since “jurors could make up their own minds about whether
the person shown [in the videos] was [Naranjo].” (Leon, at p.
601.) Thus, because Detective Ochoa’s testimony was based on
14
personal knowledge and was helpful to the jury, the trial court
did not abuse its discretion when it permitted him to identify
Naranjo in the surveillance videos. (Ibid.)
Exclusion of portions of police interview
Next, Naranjo contends it was error for the trial court
to exclude the portions of his police interview in which he
described how he obtained his firearm. We are not persuaded.
1. Background
During his interview with Detective Ochoa, Naranjo
said that he had hidden a gun at S.M.’s house. He also said that
he had the gun because “a guy told [him] to go get it because he
was afraid of getting it himself.” The detective asked Naranjo
whether the gun had “anything to do with what happened”
outside the 99 Cents Store. Naranjo replied, “Obviously, yes,
because that’s what people have been saying.”
Prior to trial, the prosecutor moved to admit portions
of the interview. The trial court reviewed the transcript and
ruled that the discussion about where Naranjo’s gun was hidden
was admissible. Defense counsel requested that the court
additionally admit the portion of the transcript that described
“how [Naranjo] obtained the gun and why the gun was located
there.” She claimed that those facts were relevant and helped to
put Naranjo’s entire statement in context.
The trial court reviewed the transcript again and
said, “It says that he got the gun from somebody, that a guy told
him to get the gun. It doesn’t say that the guy told him to place it
there . . . [or] that’s why it was located there.” Defense counsel
again argued that “the fact that someone else gave him the gun is
relevant as far as putting the entire statement into context.”
15
At trial, Detective Ochoa testified that Naranjo told
him that someone had given him the gun. He agreed that it was
“a possibility” that Naranjo could have been referring to hiding
the gun for that person when he said, “[I]f I didn’t do it, they were
going to fuck me over anyway.” Naranjo did not renew his
request to admit the excluded portions of his interview after
Detective Ochoa testified.
2. Analysis
When one portion of a conversation is admitted into
evidence, “the whole on the same subject may be inquired into by
an adverse party,” and any other portion of the conversation that
is “necessary to make it understood” may also be admitted.
(Evid. Code, § 356.) The purpose of this rule is “to avoid creating
a misleading impression.” (People v. Samuels (2005) 36 Cal.4th
96, 130 (Samuels).) But “[i]t applies only to statements that have
some bearing upon, or connection with, the portion of the
conversation originally introduced.” (Ibid.) “Statements
pertaining to other matters may be excluded.” (Ibid.) We review
for abuse of discretion. (People v. Farley (2009) 46 Cal.4th 1053,
1103.)
There was no abuse of discretion here. Naranjo’s
statements about how he came to possess the gun and why he hid
it at S.M.’s house were not “on the same subject” as where the
gun was hidden. Nor were they “necessary to make [Naranjo’s
statement about the hiding place] understood.” The trial court
was thus under no obligation to admit them. (Samuels, supra, 36
Cal.4th at p. 130.)
People v. Chism (2014) 58 Cal.4th 1266 is instructive.
In Chism, the defendant shot a man during an attempted
robbery. (Id. at pp. 1280-1281.) At trial, statements he made
16
while planning the robbery were admitted into evidence. (Id. at
p. 1324.) But the trial court did not admit statements about why
he shot the victim. (Id. at pp. 1324-1325.) The Supreme Court
determined the court properly excluded those statements since
they “had no bearing” on the statements that were admitted and
no part of the admitted statements was misleading. (Id. at p.
1325.) The same is true here.
Jury instruction on imperfect self-defense
Naranjo contends the trial court did not fully and
completely instruct the jury on imperfect self-defense. We
disagree.
1. Background
During the conference on jury instructions, Naranjo
requested that the trial court instruct the jury on self-defense
based on threats he said he had received from A.M. and J.Co.
The court questioned whether there was substantial evidence of
imminent peril, and suggested that an instruction on imperfect
self-defense might be warranted instead. Counsel then requested
an instruction on imperfect self-defense. The prosecutor objected
that such an instruction was unwarranted. The court decided to
“err on the side of caution” and instruct the jury on imperfect self-
defense with CALJIC No. 5.17.
2. Analysis
Naranjo argues the trial court should have
supplemented CALJIC No. 5.17 with CALJIC No. 5.50.1 and
CALCRIM No. 571. But CALJIC No. 5.50.1 is a pinpoint
instruction that need not be given sua sponte. (People v. Garvin
(2003) 110 Cal.App.4th 484, 488-489 (Garvin).) And CALJIC No.
5.17 is “legally correct,” thus if Naranjo wanted it supplemented
with CALCRIM No. 571 he was obligated to request that
17
instruction. (Garvin, at p. 489.) Because he did not, his
argument is forfeited. (Ibid.)
It also fails on the merits. We independently review
whether the trial court properly instructed the jury on imperfect
self-defense and whether its instructions “accurately state[d] the
law.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We view the
challenged instruction “‘in the context of the instructions as a
whole and the trial record to determine whether there is a
reasonable likelihood the jury applied [it] in an impermissible
manner.’ [Citation.]” (Ibid.) Our job is to determine “whether
there is a reasonable likelihood that the . . . instruction[] caused
the jury to misapply the law.” (Ibid.)
There was no such reasonable likelihood here. A
defendant acts in imperfect self-defense when they “actually
believe[] [that they] must defend [themselves] from imminent
danger of death or great bodily injury” but their “belief is
unreasonable.” (People v. Randle (2005) 35 Cal.4th 987, 994,
overruled on other grounds by People v. Chun (2009) 45 Cal.4th
1172, 1201.) As to the first of these requirements, “[f]ear of
future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice.” (In re
Christian S. (1994) 7 Cal.4th 768, 783.) As to the second, a court
assesses reasonableness “‘from the point of view of a reasonable
person in the position of defendant,’” taking into account “all the
‘“‘facts and circumstances [to] determin[e] whether the defendant
acted in a manner in which a reasonable [person] would act in
protecting [their] own life or bodily safety.’”’ [Citation.]” (People
v. Humphrey (1996) 13 Cal.4th 1073, 1083, alterations and italics
omitted.) A prior threat is one such circumstance to take into
account. (Garvin, supra, 110 Cal.App.4th at p. 489.)
18
Naranjo claims the trial court should have instructed
jurors pursuant to CALJIC No. 5.50.1 because that instruction
would have told them that he, as the recipient of prior threats,
would have been justified in acting more quickly and taking
harsher measures to defend himself. But CALJIC No. 5.50.1
instructs that a person who has previously been threatened is
“justified in acting more quickly and taking harsher measures for
self protection from an assault by [that person].” (Italics added.)
There was no evidence that A.M. assaulted Naranjo before
Naranjo shot him. CALJIC No. 5.50.1 was accordingly
inapplicable.
The same is true of CALCRIM No. 571. That
instruction would have told jurors that they should “consider all
the circumstances as they were known and appeared” to Naranjo
before he murdered A.M. (CALCRIM No. 571.) But CALJIC No.
5.17 told jurors that they should evaluate Naranjo’s actions
against “a reasonable person in the same situation seeing and
knowing the same facts.” Because CALCRIM No. 571 was largely
redundant, it was unnecessary.
Jury instruction on flight
Naranjo next contends the trial court erroneously
gave CALJIC No. 2.52 because substantial evidence did not
support an instruction on flight. We disagree.
1. Background
During the jury instruction conference, the
prosecutor requested an instruction on flight. Defense counsel
objected that the instruction was unnecessary because Naranjo
walked away after shooting A.M. and did not try to flee when he
was arrested the next day. The trial court overruled the objection
because the evidence showed that Naranjo, “though he may not
19
have run, walked away from the scene and allegedly tried to get
rid of his green vest.” It subsequently instructed the jury
pursuant to CALJIC No. 2.52.
2. Analysis
If prosecutors rely on evidence of a defendant’s flight
as tending to show guilt, the trial court must instruct the jury
that the flight is a factor to consider in deciding guilt or
innocence. (§ 1127c.) To have the instruction given, “the
prosecution need not prove the defendant in fact fled, i.e.,
departed the scene to avoid arrest, only that a jury could find the
defendant fled and permissibly infer a consciousness of guilt from
the evidence.” (People v. Bonilla (2007) 41 Cal.4th 313, 328
(Bonilla).) “‘In this context, flight “requires neither the physical
act of running nor the reaching of a faraway haven” but . . . does
require “a purpose to avoid being observed or arrested.”’” (People
v. Wallace (2008) 44 Cal.4th 1032, 1074.) “‘“Mere return to
familiar environs from the scene of an alleged crime does not
warrant an inference of consciousness of guilt [citations], but the
circumstances of departure from the crime scene may sometimes
do so.” [Citations.]’ [Citation.]” (Ibid.)
Substantial evidence supported the trial court’s
decision to instruct the jury on flight. After Naranjo shot A.M.,
he “immediately” walked away. (People v. Howard (2008) 42
Cal.4th 1000, 1020.) He then discarded his vest, which
“suggest[s] ‘a purpose to avoid being observed or arrested.’
[Citation.]” (Bonilla, supra, 41 Cal.4th at p. 328.) The
instruction was warranted. (Jurado, supra, 38 Cal.4th at p. 126
[trial court properly instructed jury on flight where defendant
“walked a half-mile to a 7-Eleven Store, along the way hiding in a
tree the scissors jack that had been used to kill” his victim].)
20
Prosecutorial misconduct
Naranjo next challenges the prosecutor’s closing
argument and rebuttal, claiming that she committed misconduct
throughout. But Naranjo did not object to many of the alleged
incidents of misconduct, nor did he request that the trial court
admonish the jury to “disregard the perceived impropriet[ies].”
(People v. Thornton (2007) 41 Cal.4th 391, 454 (Thornton).)
Those challenges are forfeited. (Ibid.)
They also lack merit. “‘A prosecutor who uses
deceptive or reprehensible methods to persuade the jury
commits misconduct.’” (People v. Friend (2009) 47 Cal.4th 1, 29.)
“‘[S]uch actions require reversal under the federal Constitution
when they infect the trial with such “‘unfairness as to make the
resulting conviction a denial of due process.’” [Citations.]’”
(Ibid.) “‘Under state law, a prosecutor who uses such methods
commits misconduct even when those actions do not result in a
fundamentally unfair trial.’ [Citation.]” (Ibid.)
1. Misstatements of law on first degree murder
Naranjo first claims the prosecutor committed
misconduct by misstating the law on first degree murder. We
disagree.
During her closing argument, the prosecutor
discussed the elements of murder. She then discussed first
degree murder:
“So question number one, was this murder?
“It absolutely was, yes.
“Now moving on to question number two. I told you
at the very beginning of this case that this was
21
deliberate and premeditated murder. That’s question
number two, was it?
[¶] . . . [¶]
“First degree murder is simply killing someone with
malice. Right? So we already talked about that.
That’s the murder component.
“But if that’s done willfully, deliberately, with
premeditation, now that’s what we call first degree
murder. It’s still murder, but those things elevate it
to first degree murder.” (Italics added.)
We agree with Naranjo that the statement italicized
above does not accurately reflect the law. (Compare § 187, subd.
(a) [defining murder] with § 189, subd. (a) [defining first degree
premeditated murder].) But the misstatement does not rise to
the level of misconduct. (People v. Fuiava (2012) 53 Cal.4th 622,
691 [“inadvertent misstatement” not misconduct].) As soon as
she made the statement, the prosecutor corrected herself to say
that she had just defined murder again. She then turned to
deliberation and premeditation, which “elevate[d]” Naranjo’s
crime “to first degree murder.” The context of the prosecutor’s
statements thus reveals no misconduct. (People v. Clark (1990)
50 Cal.3d 583, 630.)
2. Time spent deliberating
Naranjo next claims the prosecutor committed
misconduct because she told jurors that, “[u]nder the law, the
length of time [a person deliberates] doesn’t matter.” But in
context, the prosecutor was merely telling jurors that a deliberate
killing need not be thought about for any particular length of
time:
22
“It’s not relevant how long you deliberate, or you
think or you consider, what you’re about to do.
“The length of time can vary depending on the
person, depending on the situation. Someone could
deliberate for days about, you know, whether they’re
going to kill someone or they could do it in seconds.
It can happen in seconds.”
That is an accurate statement of the law. (See, e.g., People v.
Morales (2020) 10 Cal.5th 76, 88.)
3. Use of hypotheticals
Next, Naranjo claims the prosecutor committed
misconduct by referencing hypothetical scenarios during closing
argument. But Naranjo does not support this claim with citation
to legal authority. It is therefore forfeited. (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.) And even if
it weren’t, “it is not misconduct for a prosecutor to invoke
examples to illustrate a general point about the operation of the
law.” (People v. Ghobrial (2018) 5 Cal.5th 250, 291.)
4. Mischaracterization of police interview
Naranjo next claims the prosecutor committed
misconduct by mischaracterizing his interview with Detective
Ochoa. We disagree.
The prosecutor played the last 15 minutes of
Naranjo’s hour-long interview with Detective Ochoa at trial.
During closing argument, defense counsel told jurors that they
had “only received a couple minutes of [the interview].” And
“you’d better believe that the [prosecutor] would have played the
entire statement, not just a couple minutes, if it was helpful for
her. Hold her to that standard. That’s a reason to doubt.”
23
The prosecutor countered this argument in rebuttal:
“The reason that you heard that portion is that . . .
those are the most important things that the
defendant said to the police.
“The detective, when he testified, Detective Ochoa,
told you that for 40 minutes, the defendant evaded
questions, wouldn’t give him direct answers about
things—”
Defense counsel objected that this misstated the
evidence, and the trial court admonished the jury that it should
ask for readback of testimony if they had a question about the
evidence. The prosecutor then continued:
“The reason you got this portion is because after 40
minutes, he finally starts being a little honest about
things. When his lies aren’t working anymore, he
starts giving little pieces of the truth.
“That is the most important thing that he said, and
so that is, of course, the part you are going to hear.
That is what is relevant to this case.”
A prosecutor can commit misconduct if they relay
facts not in evidence to the jury. (People v. Linton (2013) 56
Cal.4th 1146, 1207.) Here, however, “the prosecutor’s remarks
were merely responsive to defense counsel’s own arguments to
the jury on the state of the evidence.” (People v. Stanley (2006)
39 Cal.4th 913, 952.) They also “constituted fair comment on the
evidence, following evidentiary rulings we . . . upheld” above.
(People v. Lawley (2002) 27 Cal.4th 102, 156.) That differentiates
24
this case from People v. Daggett (1990) 225 Cal.App.3d 751 and
People v. Varona (1983) 143 Cal.App.3d 566, on which Naranjo
relies, as each of those cases “involved erroneous evidentiary
rulings on which the prosecutor improperly capitalized during . . .
closing argument.” (Lawley, at p. 156).
5. Improper vouching for J.Co.’s credibility
Naranjo next claims the prosecutor committed
misconduct because she “vouched for [J.Co.’s] credibility by
repeatedly telling the jury he was honest, credible, [and] reliable,
and [that] she believed him.” But he does not point to any
specific statements in the record to support his claim. It is
forfeited. (In re Marriage of Marshall (2018) 23 Cal.App.5th 477,
487 [appellate court will not sift through record to find support
for appellant’s claim].)
And even if it weren’t, we see no indication that the
prosecutor gave any “‘personal assurances of [J.Co.’s] veracity or
suggest[ed] that information not presented to the jury support[ed
his] testimony.’ [Citation.]” (People v. Zambrano (2007) 41
Cal.4th 1082, 1167, disapproved on another ground by People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) She instead referenced
his demeanor on the witness stand and the content of his
testimony and invited jurors to find him credible. That was
entirely permissible. (Ibid.)
6. Lowering the standard of proof
Naranjo next claims that the prosecutor lowered the
standard of proof when she told jurors that any finding of
reasonable doubt must be based on the evidence and suggested
that Naranjo had a duty to prove his imperfect self-defense claim.
This mischaracterizes the prosecutor’s arguments.
25
The prosecutor argued that the killing of A.M. was
not justified by discussing the lack of an imminent threat to
Naranjo. She then encouraged jurors to “look at evidence. You
have to make connections, connect the dots, make inferences.
And you can only do those things using the evidence in the case.”
Defense counsel responded to the prosecutor’s
argument about relying on the evidence by agreeing that, “yes,
you are only to consider the evidence before you,” but then argued
that “reasons to doubt can be based on evidence that you would
have wanted that you didn’t receive.”
The prosecutor countered that point during rebuttal:
“Defense counsel, in her closing just now, argued to
you that you should do the one thing that I told you
over and over again you can’t do. She wants you to
think about things that are outside of the evidence
that you received in this case—that’s the only way
the defenses that they’ve presented work—and you
can’t do that. None of us can because we don’t know.
“She wants you to fill in holes or come up with
answers to questions that are outside of the realm of
the evidence that you heard in this case.
“And the reason she needs you to do that, the reason
she needs you to not follow the instructions, one of
the jury instructions that states to only consider the
evidence—”
After defense counsel’s objection that the prosecutor
misstated the law was overruled, the prosecutor repeated that
jurors should “only look at what you’ve got in front of you.”
26
“Reasonable doubt may arise from the lack of
evidence at trial as well as from the evidence presented.” (People
v. Campos (2007) 156 Cal.App.4th 1228, 1238.) The prosecutor
did not suggest otherwise. Rather, she merely reiterated what
the trial court had instructed the jury: that it had to “determine
what facts ha[d] been proved from the evidence received in the
trial and not from any other source”; that a “‘fact’ [was]
something proved by the evidence”; and that “evidence” included
“the testimony of witnesses, writings, material objects, or
anything presented to the senses and offered to prove the
existence or non-existence of a fact.” (See CALJIC Nos. 1.00,
1.03, & 2.00.) Naranjo does not challenge these instructions, and
we presume the jury followed them. (People v. Homick (2012) 55
Cal.4th 816, 853 (Homick).)
Naranjo also does not show that the prosecutor
improperly suggested that he had the burden to prove his
imperfect self-defense claim. (Cf. People v. Centeno (2014) 60
Cal.4th 659, 673 (Centeno) [error to tell jurors that defendant has
burden to prove their innocence].) Again, in context, the
prosecutor was merely repeating what the trial court had
instructed jurors about basing their decision on the evidence
presented. Moreover, when a defendant presents evidence in
support of a self-defense claim at trial, a prosecutor is “within
[their] rights to present evidence and argument that [the]
defendant’s evidence did not” support that claim. (Thornton,
supra, 41 Cal.4th at p. 455.) The prosecutor did not lower the
standard of proof or commit misconduct.
7. Telling jurors to use “common sense”
Next, Naranjo claims the prosecutor committed
misconduct by telling jurors to use their “‘common sense’” when
27
deciding whether she had fulfilled her burden of proof. During
closing argument, the prosecutor told jurors, “If you employ
common sense and you use your head and you assess the
evidence, that’s where all of this leads to.” And during rebuttal,
she said, “We want you to use common sense and reason to assess
the evidence in this case and to decide whether or not [Naranjo]
is guilty of first degree murder.” This was not misconduct. It is
well established that a juror may use their common sense to
evaluate the evidence. (Centeno, supra, 60 Cal.4th at p. 669.)
8. Appeals to sympathy and passion
Lastly, Naranjo claims the prosecutor committed
misconduct by “ask[ing] jurors to sympathize with [A.M.] and
place themselves in his position while watching the surveillance
videos.” But the page Naranjo cites in the record does not
support this claim. We decline to consider it.5 (Nelson v.
Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)
Ineffective assistance of counsel
Naranjo contends counsel provided ineffective
assistance throughout trial. But several of his claims of
ineffective assistance are based on the alleged errors that we
rejected above: that counsel did not object to the prosecutor’s
alleged misconduct, did not object to Detective Ochoa’s
identifications, and did not request CALJIC No. 5.50.1. An
ineffective assistance claim based on any of these grounds
necessarily fails. (Homick, supra, 55 Cal.4th at p. 893, fn. 44.)
5 Naranjo attempts to support this claim with additional
arguments and citations to the record in his reply brief. We do
not consider these belated arguments. (Rangel, supra, 62 Cal.4th
at p. 1218.)
28
The remainder similarly lack merit. To succeed on
an ineffective assistance of counsel claim, a defendant must show
that counsel performed deficiently and that that deficient
performance resulted in prejudice. (Strickland v. Washington
(1984) 466 U.S. 668, 687.) The first of these showings requires
the defendant to “establish that ‘counsel’s representation fell
below an objective standard of reasonableness under prevailing
professional norms.’ [Citation.]” (In re Fields (1990) 51 Cal.3d
1063, 1069, alterations omitted.) The second requires the
defendant to establish that there is “‘a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” (Id. at p. 1070.) “‘A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ [Citations.]” (Ibid.)
1. Detective Ochoa’s testimony
Naranjo’s first claim of ineffective assistance is based
on counsel’s failure to object to Detective Ochoa’s testimony when
asked about what Naranjo meant when he said, “And like I said
if I didn’t do it, they were going to fuck me over anyway.” To
Naranjo, the detective’s reply (that “[i]f he didn’t—if he didn’t
shoot the victim”) was an improper opinion as to his state of mind
(see People v. Sanchez (2016) 63 Cal.4th 411, 456) and guilt (see
People v. Coffman & Marlow (2004) 34 Cal.4th 1, 77). But even if
we were to assume that the detective’s testimony were improper,
“[w]hether to object to inadmissible evidence is a tactical
decision” that “seldom establishes counsel’s incompetence.”
(People v. Hayes (1990) 52 Cal.3d 577, 621 (Hayes).) Defense
counsel could reasonably have determined not to object to the
detective’s statement so as to not draw additional attention to it.
29
(People v. Barnett (1998) 17 Cal.4th 1044, 1140-1141.) We thus
cannot say that counsel performed ineffectively. (Id. at p. 1141.)
2. The ballistics expert’s opinions
At trial, a firearms expert testified that he had
compared the tool marks from a bullet fired from the gun found
in S.M.’s house with the marks on the bullet retrieved from
A.M.’s head. Based on that comparison, the expert opined that
the two bullets had been fired from the same gun. He also said
that another expert had examined his work and agreed with his
opinion. Defense counsel did not object to the expert’s testimony.
Nor did she ask the expert about studies purportedly showing the
unreliability of firearm comparison evidence. Naranjo claims
that constituted ineffective assistance.
We disagree. “‘[J]urors essentially can see [ballistics
comparisons] for themselves’” and determine whether they agree
with experts’ opinions. (People v. Cowan (2010) 50 Cal.4th 401,
470.) And both the decision whether to object to improper
testimony (Hayes, supra, 52 Cal.3d at p. 621) and how to conduct
cross-examination are matters “within counsel’s discretion [that]
rarely implicate ineffective assistance of counsel.” (People v.
McDermott (2002) 28 Cal.4th 946, 993.) Perhaps counsel did not
want to draw added attention to the ballistics expert’s testimony
given the jury’s ability to see the tool marks for themselves. Or
perhaps she concluded that ballistics was not a weak part of the
prosecutor’s case and wanted to focus attention on other matters
instead. Either way, such a tactical decision does not constitute
ineffective assistance.
3. CALJIC No. 2.91
Naranjo next claims counsel was ineffective because
she did not request that the trial court instruct jurors pursuant
30
to CALJIC No. 2.91, which would have told them that the
prosecutor had to prove, beyond a reasonable doubt, that he was
the person who killed A.M. But a court should give that
instruction upon request only if “‘identification is a crucial issue
and there is no substantial corroborative evidence’” in the case.
(People v. Alcala (1992) 4 Cal.4th 742, 803 (Alcala), italics
omitted.) Here, there was substantial corroborative evidence of
Naranjo’s identity as the shooter: eyewitness testimony, the
surveillance videos, and Naranjo’s actions before and after the
shooting. The court thus could have rejected any request for the
instruction had it been made.
In addition, the trial court instructed the jury on
“witness credibility (CALJIC No. 2.20), discrepancies in
testimony (CALJIC No. 2.21), the weighing of conflicting
testimony (CALJIC No. 2.22), the sufficiency of testimony from
one witness (CALJIC No. 2.27), and reasonable doubt (CALJIC
No. 2.90).” (Alcala, supra, 4 Cal.4th at p. 804.) These
“instructions were sufficient to inform the jury that the
prosecution had the burden of establishing identity, and that
defendant should be acquitted in the event the jury harbored a
reasonable doubt on the issue of identity.” (Id. at p. 803.)
Counsel was thus not ineffective by not requesting CALJIC No.
2.91. (Alcala, at pp. 804-805.)
4. CALJIC No. 8.73
Finally, Naranjo claims counsel was ineffective
because she did not request CALJIC No. 8.73, which would have
told jurors that provocation can reduce first degree murder to
second degree murder. But that instruction need only be given if
supported by substantial evidence. (People v. Avila (2009) 46
Cal.4th 680, 707.) Naranjo points to no evidence that he “formed
31
the intent to kill as a direct response to [A.M.’s] provocation and
. . . acted immediately.” (People v. Wickersham (1982) 32 Cal.3d
307, 329, disapproved on another ground by People v.
Barton (1995) 12 Cal.4th 186, 200-201.) Counsel was thus not
ineffective for failing to request CALJIC No. 8.73. (Alcala, supra,4 Cal.4th at pp. 804-805.)
Cumulative error
Naranjo contends the judgment should be reversed
because the errors at trial, considered cumulatively, denied him a
fair trial. But we have rejected all of his individual claims of
error. His cumulative error claim thus necessarily fails. (People
v. Koontz (2002) 27 Cal.4th 1041, 1094.)
Motion to strike firearm enhancement
Naranjo contends the trial court erred when it denied
his motion to strike the firearm enhancement imposed pursuant
to section 12022.53, subdivision (d). We disagree.
1. Legal framework
Pursuant to section 12022.53, subdivision (d), a
defendant convicted of a qualifying felony who personally and
intentionally discharges a firearm causing death is subject to a
sentence enhancement of 25 years to life in state prison.
Subdivision (h) of section 12022.53 permits a trial court to strike
that enhancement in the interest of justice. (See also § 1385,
subd. (a).) When deciding whether to do so, the court should
“consider the factors listed in California Rules of Court, rule
4.410 . . . as well as circumstances in aggravation and mitigation
under rules 4.421 and 4.423.” (People v. Pearson (2019) 38
Cal.App.5th 112, 117 (Pearson).) “‘Unless the record
affirmatively reflects otherwise,’” we presume that the court
32
considered these factors and circumstances. (Ibid., alterations
omitted; see Cal. Rules of Court, rule 4.409.)
We review a trial court’s denial of a motion to strike a
firearm enhancement for abuse of discretion. (Pearson, supra, 38
Cal.App.5th at p. 116.) An abuse of discretion occurs only “in
limited circumstances,” such as “where the . . . court was not
‘aware of its discretion’ to dismiss [citation], or where the court
considered impermissible factors in declining to dismiss
[citation].” (People v. Carmony (2004) 33 Cal.4th 367, 378
(Carmony).) “But ‘it is not enough to show that reasonable people
might disagree about whether to strike’” the enhancement.
(Ibid., alterations omitted.) “Where the record is silent [citation],
or ‘where the record demonstrates that the . . . court balanced the
relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm [its] ruling, even if we
might have ruled differently in the first instance’ [citation].”
(Ibid., alterations omitted.)
2. Analysis
There was no abuse of discretion here. At sentencing,
Naranjo moved the trial court to strike the firearm enhancement
because he was 41 years old and had no prior convictions. The
prosecutor opposed Naranjo’s motion based on the “egregious
facts” of the murder. The court agreed with the prosecutor,
finding that Naranjo’s conduct was “egregious” based on “the
manner in which he used the weapon to coldly go up to somebody
and, execution style, murder that individual.” It denied
Naranjo’s motion.
That denial was well within the court’s discretion.
“The factors that the trial court must consider when determining
whether to strike a firearm enhancement under section 12022.53,
33
subdivision (h)[,] are the same factors the trial court must
consider when handing down a sentence in the first instance.”
(Pearson, supra, 38 Cal.App.5th at p. 117.) Among those factors
are the “cruelty, viciousness, or callousness” of the crime and that
the defendant used a weapon to commit it. (Cal. Rules of Court,
rule 4.421(a)(1)-(2).) The court below explicitly considered these
factors. “[D]enying [Naranjo’s] request to strike the firearm
enhancement here was squarely within the bounds of the . . .
court’s discretion.” (Pearson, at p. 118.)
Naranjo counters that his sentence should be
reconsidered in light of the purpose of Senate Bill No. 620 (2017-
2018 Reg. Sess.) (S.B. 620), which granted trial courts the
discretion to strike firearm enhancements. (Stats. 2017, ch. 682,
§ 2.) But S.B. 620 was enacted prior to Naranjo’s sentencing, and
the trial court here was well aware of the discretion the bill
granted to it. It does not follow that simply because the court
chose not to exercise that discretion that that choice ran counter
to S.B. 620’s purposes. Indeed, Naranjo identifies nothing in S.B.
620 that would require deviating from the Legislature’s
determination that a willful, deliberate, and premeditated
murder committed with the use of a firearm warrants a sentence
of 50 years to life. It is only in the “extraordinary” case that
courts should deviate from legislatively prescribed sentencing
rules. (Carmony, supra, 33 Cal.4th at p. 378.) This is not that
case.
Lesser firearm enhancement
Alternatively, Naranjo contends the case should be
remanded to permit the trial court the opportunity to impose a
lesser firearm enhancement. (See People v. Morrison (2019) 34
Cal.App.5th 217, 221-223 (Morrison).) We again disagree.
34
The prosecutors in Morrison originally alleged that
the defendant had personally used a firearm (§ 12022.53, subd.
(b)), personally discharged a firearm (id., subd. (c)), and
personally discharged a firearm causing death (id., subd. (d)).
(Morrison, supra, 34 Cal.App.5th at p. 221.) Prior to submitting
the case to the jury, however, prosecutors struck the subdivision
(b) and (c) allegations, leaving jurors to decide only the
subdivision (d) allegation. (Morrison, at p. 221.) They found the
allegation true, and the trial court added the corresponding
enhancement to the defendant’s sentence. (Ibid.) On appeal, our
colleagues in the First District vacated the enhancement.
(Morrison, at p. 225.) They concluded that the recent addition of
subdivision (h) to section 12022.53 granted the trial court the
discretion to strike the enhancement imposed pursuant to
subdivision (d) and substitute one of the lesser included,
uncharged enhancements instead. (Morrison, at pp. 221-223.)
As in Morrison, the jury here concluded only that
Naranjo personally discharged a firearm causing death, and
made no findings regarding any lesser included allegations. But
Morrison was decided in April 2019. Naranjo was sentenced
more than two months later. Had he believed the trial court had
the discretion to impose a lesser included enhancement, it was
his duty to object to the sentence the court imposed. (People v.
Yanez (2020) 44 Cal.App.5th 452, 460 (Yanez), review granted
April 22, 2020, S260819.) Because he failed to do so, his
contention is forfeited. (Ibid.)
35
It also fails on the merits.6 Every case confronting
the issue of whether section 12022.53, subdivision (h), permits a
trial court to substitute a subdivision (b) or (c) enhancement for a
subdivision (d) enhancement has concluded that Morrison was
wrongly decided—i.e., that subdivision (h) does not “authorize[] a
trial court to substitute one enhancement for another.” (People v.
Tirado (2019) 38 Cal.App.5th 637, 643, review granted Nov. 13,
2019, S257658; see also People v. Delavega (2021) 59 Cal.App.5th
1074, 1087; People v. Valles (2020) 49 Cal.App.5th 156, 164-167,
review granted July 22, 2020, S262757; People v. Garcia (2020)
46 Cal.App.5th 786, 790-794, review granted June 10, 2020,
S261772; Yanez, supra, 44 Cal.App.5th at pp. 458-460, review
granted.) We find the analysis in these cases persuasive, and
would apply their holdings here had Naranjo not forfeited his
contention.
Lack of a probation report at sentencing
Finally, Naranjo contends the trial court erred when
it declined to order a probation report before sentencing him. But
Naranjo did not object to the lack of a probation report at
sentencing. His contention is forfeited. (People v. Llamas (1998)
67 Cal.App.4th 35, 38-39.)
It also fails on the merits.7 A defendant who uses a
firearm to commit murder is ineligible for probation. (§ 1203.06,
6 We accordingly reject Naranjo’s contention that counsel
provided ineffective assistance by not requesting a lesser firearm
enhancement. (Homick, supra, 55 Cal.4th at p. 893, fn. 44.)
7 We thus reject Naranjo’s contention that counsel provided
ineffective assistance by not objecting to the lack of a probation
report. (Homick, supra, 55 Cal.4th at p. 893, fn. 44.)
36
subd. (a)(1)(A).) The trial court nevertheless has the discretion to
order the probation department to produce a report to aid the
court at sentencing. (§ 1203, subd. (g); see People v. Webb (1986)
186 Cal.App.3d 401, 408-409.) Here, however, Naranjo has not
shown that the court abused that discretion because, as the court
noted during the proceedings below, there was no need to order a
probation report since Naranjo’s sentence was “dictated by
statute.” The mandatory sentence for first degree murder is 25
years to life in state prison. (§ 190, subd. (a).) And when it is not
stricken, the mandatory sentence enhancement for a defendant
who personally and intentionally used a firearm causing death is
a consecutive 25 years to life. (§ 12022.53, subd. (d).) Thus even
if Naranjo could show that the trial court abused its discretion by
not ordering a probation report, he cannot show prejudice.
People v. Tatlis (1991) 230 Cal.App.3d 1266, on which
Naranjo relies, is not to the contrary. In that case, the trial court
denied the defendant’s request for an updated probation report to
inform the court’s exercise of discretion during resentencing. (Id.
at p. 1269.) The appellate court determined it was error to deny
the defendant’s request because that denial was based on the
trial court’s conclusion that it lacked discretion to order a
probation report and because the defendant showed prejudice.
(Id. at p. 1274.) Here, in contrast, Naranjo did not request a
probation report, the trial court knew it could order one, and
Naranjo failed to show prejudice. Tatlis is accordingly
inapposite.
37
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
38
George C. Lomeli, Judge
Superior Court County of Los Angeles
______________________________
Cynthia Grimm, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael R. Johnsen and Blythe J.
Leszkay, Deputy Attorneys General, for Plaintiff and
Respondent.