People v. Harrison CA2/5

Filed 9/26/22 P. v. Harrison CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B302288 c/w B303783
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA136832)
v.
DAVION HARRISON et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Olivia Rosales, Judge. Affirmed.
Cynthia Grimm, under appointment by the Court of
Appeal, for Defendant and Appellant Davion Harrison.
Kelly C. Martin, under appointment by the Court of
Appeal, for Defendant and Appellant Enoch Frison.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
___________________________
A jury convicted Enoch Frison and Davion Harrison of the
murder of Anthony Lawson. In this consolidated appeal, Frison
and Harrison assert that multiple errors require reversal of their
convictions. We affirm the judgments against them.
FACTS
1. The Murder
On July 26, 2014, Vincent Hunter and his mother, Mardie
Moore, attended a family birthday party. Also in attendance
were defendants Harrison and Frison. Both men considered
Moore to be a family member, much like a grandmother or an
auntie, even though neither was related to her by blood.
In the early morning of July 27, 2014, as the party was
winding down, Moore became intoxicated. Hunter put his mother
into the front passenger seat of her parked car and reclined it to
make her more comfortable.
Murder victim Lawson and his assistant repossessed
Moore’s car while she slept in it. From his vantage point, Lawson
could not see that Moore was in the car. Lawson quickly hooked
the car to his tow truck and drove away. His assistant followed
in a separate car. They drove to a nearby 7-Eleven, where they
intended to more securely attach Moore’s car to the tow truck.
Witness Hunter and his brother chased after the tow truck
in a Chevy Camaro. Defendant Harrison and his stepbrother
joined the chase in Harrison’s SUV. At the 7-Eleven, Hunter got
out of the Camaro to tell Lawson that his mother was sleeping in
the car but before he could reach Lawson, Hunter heard
gunshots. When he looked in the direction of the gunfire, he saw
defendant Harrison walking back to his SUV with a gun in his
hand. Lawson’s assistant saw Lawson jump back into his tow
truck and speed off with the Camaro and SUV in pursuit.
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After the Camaro had taken off, leaving Hunter behind,
Harrison told Hunter to get into his SUV. Harrison’s stepbrother
was driving, Harrison was in the front passenger seat, and
Hunter was in the back. Hunter saw Harrison holding a gun. At
some point, Hunter noticed defendant Frison had joined the
chase in a separate vehicle.
Lawson’s assistant called the police, left the 7-Eleven
parking lot, and attempted to follow. He eventually lost sight of
the speeding vehicles. During the chase, Lawson’s tow truck
collided with the Camaro, rendering the Camaro inoperable.
Harrison and Frison continued the pursuit in separate vehicles.
The chase ended about five miles from the 7-Eleven when the tow
truck hit a car at the intersection of Firestone Boulevard and
Rayo Avenue. Lawson got out of his truck to flee. Hunter and
another witness testified at trial that two shooters fired at
Lawson. Lawson was shot eight times. He died from his wounds.
2. The Investigation
a. Surveillance Video Evidence
Surveillance video from 7-Eleven showed the tow truck
entering the parking lot followed by a car and an SUV. The tow
truck quickly drove out of the frame but the car and SUV
remained in view. The video showed a figure exiting the car and
walking in the direction of the tow truck. Another figure exited
the SUV. The person who exited from the SUV fired in the
direction of the tow truck. At trial, the prosecution presented
evidence that it was Hunter who exited the car, and Harrison
who exited the SUV to fire a gun in the direction of the tow truck.
The prosecution also presented a series of surveillance videos
that showed three vehicles chasing the tow truck five miles from
the 7-Eleven to the Firestone and Rayo intersection.
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b. Ballistics Evidence
The police recovered 10 expended cartridge cases and
multiple possible bullet fragments from the Firestone and Rayo
intersection. Additional fired bullets were recovered from the tow
truck. A fired bullet was found in the street adjacent to the 7-
Eleven near where the earlier shooting had taken place.
The medical examiner opined four of Lawson’s eight
wounds were fatal. The coroner’s office recovered five bullets
during the autopsy, one of which was from a prior shooting. The
firearms expert testified that the recent bullets recovered from
Lawson’s body came from two different firearms – a Glock pistol
and a revolver. The expert testified that the Glock bullets
recovered from Lawson’s body during the autopsy were fired from
the same Glock pistol that expended the 10 cartridge casings
found at Firestone and Rayo. The expert also compared a
fragment of a bullet from Lawson’s body recovered at the hospital
with the fired bullet recovered from the 7-Eleven. She
determined they were fired from the same revolver.
On September 11, 2014, police executed a search warrant
for Frison’s home. From Frison’s bedroom, officers recovered a
gun case for a Glock pistol owned by Frison, and which contained
exemplar casings from the Glock factory. At trial, a firearms
expert testified that the 10 expended casings found at the
Firestone and Rayo intersection were fired from the same firearm
as the two exemplar casings found in Frison’s bedroom.
From this evidence, the prosecution linked Frison’s Glock
pistol to the casings found at Firestone and Rayo and to four of
the bullets found in Lawson’s body. The second firearm used that
night – most likely a revolver – was never recovered, but Hunter
testified that the gun he saw Harrison holding appeared to be a
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revolver. Because the bullet fragment recovered at the hospital
matched the bullet found at 7-Eleven, the prosecution’s theory
was that Harrison had fired both the shot at the 7-Eleven and at
least one of the shots that hit Lawson at Firestone and Rayo.
c. Renee Lloyd Interview
On August 5, 2014, detectives interviewed Renee Lloyd,
whose sister has a child with Harrison. Lloyd contacted the
detectives about the case the previous evening, and officers
arranged an interview.
Lloyd told the detectives she was at her sister’s home one
afternoon when Harrison called and asked her sister to pick him
up at the train station. When he arrived home, Lloyd’s sister
questioned him about his car. He responded he had already told
her what happened and wanted to be left alone. When she
pursued the point, he answered, “To get rid of the evidence.”
Later that evening, while they were drinking and smoking,
Harrison told Renee Lloyd about the shooting. He admitted he
was the shooter and his stepbrother was the driver. He stated, “I
guess I’m trigger happy. I should have went to the gun range. I
need to go more often.” Harrison bragged to Lloyd that he
“burned the car” to avoid being apprehended. Harrison also said,
“That’s what he get. That’s what he get for trying to take my
grandmother car.” He also asserted, “Me and [my stepbrother]
and my two cousins, we had to [do] it. We had to. It was for my
grandmother. We had to.” Lloyd reported to the detectives that
during her conversation with Harrison, he exhibited no remorse
over the shooting, just that he regretted not getting the car back
from the tow truck driver.
When the detectives asked Lloyd why she came forward,
she said, “To be honest, I feel like that’s the right thing to do . . .
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if it happened to me, I would want someone to come forward . . .
he need[ed] to get in trouble for that. He didn’t have any remorse
for it. He don’t care about the man.”1
d. Defendants’ Statements to Undercover Officers
On September 11, 2014, undercover officers participated in
a Perkins operation with Frison and Harrison.2 Defendants were
in separate cells.
Frison told an undercover officer he knew the police were
“gonna show up sooner or later.” Frison said he got rid of the
“burner” and did not think he was captured on camera. When
the agent asked if Frison was close to the “other individuals that
are involved with you,” Frison responded, “Not super close, but I
watched the little man crawl all the way up from little kids.”
When the agent asked the name of his “crimeys,” Frison replied,
“Davion.” (Davion is defendant Harrison’s first name.)
Frison also told the undercover officer he used a Glock
firearm but he left it with someone he trusted, who “broke it
down in pieces” and “got rid of it.” He also stated he painted his
car burgundy and that it was at his girlfriend’s house. The police
subsequently recovered Frison’s SUV from his girlfriend’s garage.
1 Lloyd’s videotaped interview was shown to the jury and a
transcript of it was admitted into evidence. At trial, Lloyd
testified she did not recall the statements she made to the
detectives at her interview but only contacted them because they
had harassed her.
2 Illinois v. Perkins (1990) 496 U.S. 292, 294 holds that
“Miranda warnings are not required when the suspect is
unaware that he is speaking to a law enforcement officer and
gives a voluntary statement.”
6
Originally tan, it had been painted maroon or burgundy. Frison
described the shooting as a “big mistake” and believed he “fucked
up.” When the undercover officer proposed, “You got caught up in
the heat of the moment,” Frison replied, “That’s it right there,
point blank, period.”
Meanwhile, defendant Harrison, in his custodial
statements to two undercover officers, generally denied knowing
what happened and said he was repeating what he had been told.
He nevertheless indicated he had been at the 7-Eleven parking
lot on the night of the shooting and that he did not believe he was
caught on camera because it only covered the front door. He also
stated, “they can’t see what the fuck it is, you try to zoom, it’s all
blurry, dark.” One of the undercover officers testified Harrison
believed “his dark skin [had] a hard time being picked up on the
camera.”3 Harrison also indicated he thought someone must
have used a revolver in the shootings because only one type of
casing was found at Rayo and Firestone.4 He told the undercover
officers that his car would not be found because he had a
“connection” at the DMV.
3 The defendants’ jailhouse conversations were recorded and
portions were played to the jury. Transcripts of the recordings
were also admitted into evidence. The quality of Harrison’s
recording was poor and 75 percent of it was inaudible. As a
result, the undercover officer testified at trial to Harrison’s
statements in the cell.
4 The firearms expert testified that a revolver would not eject
spent casings after it was fired while a Glock pistol would. No
spent casings were found at the 7-Eleven, indicating the shots
were fired from a revolver.
7
3. The Trial
Defendants were both charged with murder (Pen. Code,
§ 187, subd. (a)).5 Harrison was separately charged with shooting
at an occupied motor vehicle arising out of the 7-Eleven incident
(§ 246). Firearm enhancements were alleged as to both counts
(§ 12022.53, subds. (b)–(d)).
The People’s theory at trial was that Harrison used a
revolver when he fired on Lawson’s tow truck at the 7-Eleven,
thus committing the crime of shooting at an occupied motor
vehicle. The prosecutor also argued both defendants committed
first degree murder by willfully and with premeditation shooting
Lawson – Harrison with a revolver and Frison with the Glock –
at Firestone and Rayo.6
Prosecution evidence. The prosecution presented
testimony from Hunter (Mardie Moore’s son), Lawson’s assistant,
and various law enforcement personnel describing the events of
that night and the subsequent investigation. Hunter testified he
saw Harrison with a gun at the 7-Eleven parking lot and that
Lawson drove erratically and at a high speed during the chase.
Hunter believed Moore’s car, which had not been fully secured to
the tow truck, was in danger of flipping over. Hunter also
believed Moore turned on the car’s hazard lights and flashed
5 All further undesignated statutory references are to the
Penal Code.
6 The evidence at trial did not conclusively establish that the
shot or shots that Harrison fired at Firestone and Rayo were
fatal. The prosecutor argued Harrison was either a direct
perpetrator or an aider and abettor. For purposes of this opinion,
it is immaterial on which theory the jury relied to convict
Harrison of first degree murder.
8
headlights in a bid for attention. Hunter identified Harrison and
Frison as the shooters at Firestone and Rayo, and stated that,
after the shooting, Harrison and Frison quickly left in their
vehicles.
Apart from Hunter’s testimony, the prosecution placed
Harrison at Firestone and Rayo by introducing Harrison’s school
report card, which an investigator found at the intersection on
the day of the murder. Harrison argued the investigators
actually recovered the report card from his parents’ house, which
was searched three times, and not from Firestone and Rayo.
Harrison pointed out that the report card was booked into the
evidence locker two months after the crime scene was processed.
Jovani Arana, the driver of the car that collided with
Lawson’s tow truck at Firestone and Rayo, testified he and his
girlfriend were initially stuck in their car because the doors were
jammed. He heard two vehicles drive around his car after the
collision. Seconds later, he heard gunshots. He explained he was
a hunter and the gunshots sounded like they came from two
different types of guns. Arana testified he eventually managed to
open the car door. Although he only saw one man because of the
position of the vehicles, he believed there were two men firing the
shots he heard. One of the men turned back and looked at him.
He could not remember their faces; nor did he otherwise identify
defendants.
Defense evidence. Harrison’s defense at trial focused on
misidentification. He argued Lawson’s assistant, who saw the
shooting at the 7-Eleven, never identified Harrison as the
shooter, and Hunter wrongfully accused him of being the shooter
to exculpate himself. In contrast, Frison did not deny shooting
Lawson but argued the killing was justified because he was
9
reasonably acting in defense of Moore or, at most, the killing
constituted heat of passion involuntary manslaughter.7
Harrison’s stepfather and mother testified for the defense.
Harrison’s stepfather told the jury that Harrison was 21 years old
at the time of the incident. The stepfather testified he saw
Frison leave the party at 11:30 p.m. or midnight, before Moore’s
car was towed. He also recalled seeing Harrison at a house
across the street when he walked outside after hearing that
Moore’s car had been towed. Harrison’s stepfather and mother
testified to the nonviolent character of both defendants.
Verdict and Sentencing. The jury found Harrison guilty
of first degree murder and shooting at an occupied motor vehicle.
It found true the firearm enhancement allegations as to both
counts. The trial court sentenced Harrison to an aggregate
indeterminate term of 50 years to life in state prison.
The jury found Frison not guilty of first degree murder, but
guilty of second degree murder and found true the firearm
allegation. The trial court sentenced Frison to 25 years to life in
state prison. We consolidated defendants’ appeals.
DISCUSSION
Frison and Harrison each filed briefs on appeal. Frison
raises only one issue that does not overlap with those raised by
Harrison. We begin by addressing Frison’s separate claim of
error – whether substantial evidence supports his second degree
7 At trial Frison’s counsel argued both the complete defense
of another and in the alternative, that defendant was guilty of
manslaughter. The trial court instructed on first and second
degree murder, defense of another, and heat of passion voluntary
manslaughter. On appeal, Frison does not pursue defense of
another, only heat of passion manslaughter.
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murder conviction. We then consider the dozen or so issues
raised by Harrison, some of which apply to Frison.8
1. Substantial Evidence Supports Frison’s Conviction
for Second Degree Murder
Frison, who fired four bullets into Lawson’s body, asserts
there is insufficient evidence to support a second degree murder
conviction because the evidence showed he acted in the heat of
passion. At most, he says, he was guilty of voluntary
manslaughter. As we have observed, the jury was instructed on
voluntary manslaughter as well as first and second degree
murder. We uphold the conviction.
a. Standard of Review
“When the sufficiency of the evidence to support a
conviction is challenged on appeal, we review the entire record in
the light most favorable to the judgment to determine whether it
contains evidence that is reasonable, credible, and of solid value
from which a trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] Our review must presume in
support of the judgment the existence of every fact the jury could
reasonably have deduced from the evidence. [Citation.] . . . .
[T]he relevant inquiry on appeal is whether, in light of all the
evidence, ‘any reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.’ [Citation.]” (People
v. Zaragoza (2016) 1 Cal.5th 21, 44.)
When undertaking a substantial evidence inquiry, “the
testimony of a single witness that satisfies the standard is
sufficient to uphold the finding” even if there is a significant
8 Frison’s reply brief states that he “joins in appellant
Harrison’s arguments on all claims raised by both appellants.”
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amount of countervailing evidence. (People v. Barnwell (2007)
41 Cal.4th 1038, 1052; see also Evid. Code, § 411 [“Except where
additional evidence is required by statute, the direct evidence of
one witness who is entitled to full credit is sufficient for proof of
any fact”]; People v. Robertson (1989) 48 Cal.3d 18, 44.) And “[i]t
is well settled that, under the prevailing standard of review for a
sufficiency claim, we defer to the trier of fact’s evaluation of
credibility.” (People v. Richardson (2008) 43 Cal.4th 959, 1030.)
b. Heat of Passion Voluntary Manslaughter Principles
“Murder is the unlawful killing of a human being with
malice aforethought.” (See § 187, subd. (a).) A murder may be
reduced to voluntary manslaughter if the victim engaged in
provocative conduct that would cause an ordinary person with an
average disposition to act in the heat of passion, that is, rashly or
without due deliberation and reflection. (People v. Enraca (2012)
53 Cal.4th 735, 758.)
“A heat of passion theory of manslaughter has both an
objective and a subjective component. [Citations.] [¶] ‘ “To
satisfy the objective or ‘reasonable person’ element of this form of
voluntary manslaughter, the accused’s heat of passion must be
due to ‘sufficient provocation.’ ” ’ ” (People v. Moye (2009)
47 Cal.4th 537, 549 (Moye).) Legally sufficient provocation is that
which “ ‘causes a person to act, not out of rational thought but out
of unconsidered reaction to the provocation.’ [Citation.] Further,
the ‘proper standard focuses upon whether the person of average
disposition would be induced to react from passion and not from
judgment.’ ” (People v. Nelson (2016) 1 Cal.5th 513, 539
(Nelson).) The facts and circumstances must be “ ‘ “sufficient to
arouse the passions of the ordinarily reasonable man.” ’ ” (Ibid.)
12
As for the subjective element, the defendant “must be
shown to have killed while under ‘the actual influence of a strong
passion’ induced by such provocation.” (Moye, supra, 47 Cal.4th
at p. 550; Nelson, supra, 1 Cal.5th at p. 539.) Both elements
require proof the victim instigated the incident, meaning “the
victim must taunt the defendant or otherwise initiate the
provocation.” (People v. Carasi (2008) 44 Cal.4th 1263, 1306.)
c. Analysis
We conclude substantial evidence supports the jury’s
finding that Frison committed second degree murder: Frison
followed Lawson for five miles from the 7-Eleven to Firestone and
Rayo. He did not shoot at Lawson during the high-speed chase
but opened fire only after Lawson had stopped the tow truck.
When Lawson exited his truck to flee, Frison fired 10 rounds at
Lawson’s back from close proximity, killing him. Frison
immediately fled the scene. At no point prior to the shooting did
Frison attempt to determine whether Moore was injured.
Frison asserts the evidence discloses a reasonable person in
his position would have reacted from passion and not from reason
or judgment because he considered Moore to be family and
Lawson had placed Moore in great danger by his erratic driving
and high speeds.
By finding him guilty of second degree murder, the jury
necessarily rejected Frison’s heat of passion defense. Putting to
one side whether Frison was actually influenced by a strong
passion, substantial evidence supports the jury’s implied finding
that his conduct was not objectively reasonable.
Here, the evidence showed Lawson towed Moore’s car, not
knowing Moore was asleep inside. Frison and others
unsuccessfully attempted to flag Lawson down. When Lawson
13
arrived at the 7-Eleven parking lot, Harrison shot at him. Thus
began a five-mile chase during which Lawson, who apparently
was still unaware of Moore’s presence in the car, drove at high
speeds. The chase ended after Lawson collided with two cars and
attempted to flee under a barrage of bullets.9
Given these facts, substantial evidence supported the jury’s
finding that any provocation resulting from Lawson’s unexpected
endangerment of Moore would not have induced a reasonable
person to lose all reason and judgment, and shoot Lawson.
Courts have found insufficient provocation even where there has
been deliberate, not mistaken or unintentional, conduct by the
victim to injure, harass, or threaten the defendant. (See People v.
Cole (2004) 33 Cal.4th 1158, 1214 [bickering, yelling, cursing, and
threats by victim would not have provoked reasonable person to
act rashly from passion]; People v. Manriquez (2005) 37 Cal.4th
547, 586 [victim called defendant a “mother fucker” and
repeatedly taunted defendant to take out his weapon, if he had
one, and use it]; People v. Najera (2006) 138 Cal.App.4th 212, 226
[calling defendant a “faggot” was insufficient to cause an ordinary
person to lose reason and judgment under an objective standard];
People v. Lucas (1997) 55 Cal.App.4th 721, 739 [victim smirked at
defendant, gave him dirty looks, and called him names]; People v.
Fenenbock (1996) 46 Cal.App.4th 1688, 1705 [“neither simple
trespass nor simple assault constitute provocation sufficient to
9 At trial, Hunter testified Lawson collided with parked cars
as well as with Arana’s car and the Camaro driven by Hunter’s
brother. Video of the chase, compiled from nine surveillance
cameras along the route, did not show the truck colliding with
any parked cars. The video, however, did not show the entire
five-mile chase.
14
reduce the killing to manslaughter”].) Defendants do not suggest
Lawson intended to kidnap Moore. When Frison fired at Lawson,
the tow truck had stopped, and Moore appeared to be safe.
Even if Lawson’s conduct was some evidence of provocation
for the jury to consider, in People v. Bloyd (1987) 43 Cal.3d 333,
350, our Supreme Court described the rule we adopt here: “[I]t
remains the jury’s exclusive province to decide whether the
particular facts and circumstances are sufficient to create a
reasonable doubt as to whether the defendant acted under a heat
of passion. [Citations.] Here, the jury was properly instructed on
voluntary manslaughter and heat of passion or sudden quarrel.
They found malice, and we conclude the evidence is sufficient to
support the finding.”
2. The Admission of Frison’s Reference to Harrison in
His Conversation with an Undercover Agent Was At
Most Harmless Error; Severance of the Trial Was Not
Required
Several of Harrison’s arguments arise from the admission
of Frison’s statement to the undercover officer that referred to
“Davion” (i.e., Harrison) as Frison’s “crimey.” The trial court
admitted Frison’s entire statement as a declaration against
Frison’s penal interest. On appeal, Harrison argues the portion
of Frison’s statement implicating him was inadmissible hearsay
and its admission violated his constitutional rights to confront an
adverse witness, due process, and a fair trial. In a related
argument, he contends the trial court erred when it denied his
request for severance.
a. Proceedings Below
At the end of his jailhouse conversation with an undercover
officer, Frison and the officer discussed transferring to “the
15
County” for processing. The officer then told Frison the police
will “snatch up your crimeys,” and wondered whether the officer
might “run into them fools in the County too,” apparently
referring to Frison’s coparticipants. The undercover officer
asked, “What they call him?” Frison stated he did not know his
street name but his real name is Davion. The agent then stated,
“Davion, oh, that’s your crime partner?” (The record does not
reflect whether Frison answered the question.)
In a pretrial motion, Harrison moved for severance, or in
the alternative, to preclude the incriminating portion of Frison’s
statement to the undercover agent. He argued Frison’s
statement naming Harrison to the undercover agent was
“prejudicial and incriminating” under Bruton v. United States
(1968) 391 U.S. 123 (Bruton), and testimonial under Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). The trial court
denied severance.
The prosecutor moved to admit Frison’s statement against
both defendants as a statement against penal interest. The
prosecutor argued that, as to Harrison, Frison’s statement was
admissible under Evidence Code section 1230 because the
statement was nontestimonial and trustworthy.
The trial court admitted Frison’s statements against both
defendants. The court found persuasive Frison’s consistent
reference to “one person, one male” despite the undercover
agent’s questions about multiple coparticipants. The court
reasoned:
“. . . [Frison] is placing himself as the person who was
there, did what he had to do, he messed up, he should have
handled it differently, but he was carrying a gun and he hid
the gun, gave it to somebody to get rid of it, somebody he
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trusted. He painted the car. He refers to the location, the
circumstances of the repo. guy with his aunt being inside
the car. And then refers to Mr. Davion [Harrison] as the
one person involved in this. Although, he doesn’t say – and
that goes to the fact that it’s a declaration against interest
because he doesn’t say what Davion does, just refers to
Davion was involved with him.”
b. Admission of Frison’s Statement
We will assume that the trial court erred in admitting the
“crimey” statement as a declaration against penal interest, but
find that any such error was harmless. State law errors in the
admission of evidence are governed by the harmless error
standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People
v. Duarte (2000) 24 Cal.4th 603, 618-619.)10 “ ‘[U]nder Watson, a
defendant must show it is reasonably probable a more favorable
result would have been obtained absent the error.’ ” (People v.
Beltran (2013) 56 Cal.4th 935, 955; accord, Watson, at p. 836.)
“[T]he Watson test for harmless error ‘focuses not on what a
reasonable jury could do, but what such a jury is likely to have
done in the absence of the error under consideration. In making
that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is
so relatively strong, and the evidence supporting a different
outcome is so comparatively weak, that there is no reasonable
10 Harrison also contends the admission of Frison’s statement
violated his constitutional rights. Even if we applied the higher
federal standard of harmless error beyond a reasonable doubt
under Chapman v. California (1967) 386 U.S. 18, 24, we would
reach the same result.
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probability the error of which the defendant complains affected
the result.’ ” (Beltran, supra, at p. 956; accord People v. Clark
(2021) 62 Cal.App.5th 939, 968.)
Here, the evidence demonstrating Harrison’s participation
in Lawson’s murder was overwhelming: Harrison confessed to
Renee Lloyd that he was the shooter; Harrison indicated to the
undercover Perkins agent that he was present at the 7-Eleven;
Hunter testified Harrison was one of the shooters; Harrison’s
report card was found at Rayo and Firestone; and the ballistics
evidence showed a fragment of a bullet found at the 7-Eleven
matched one found in Lawson. By contrast, the evidence
supporting a different outcome was relatively weak: Harrison
argued at trial that Hunter lied about Harrison’s participation in
the shooting to exculpate himself, Harrison told the Perkins
officer he was not present, Lawson’s assistant did not identify
him as the shooter at the 7-Eleven, and the police did not recover
his report card at Firestone and Rayo but at his parents’ house.
The record shows the prosecutor did not rely solely or even
primarily on Frison’s statement because Frison did not elaborate
as to Harrison’s specific role in the events — whether he was a
shooter, a driver, participated in some other way, or just was
there. Frison’s vague statement referencing Harrison was
cumulative to the other, more specific evidence outlined by the
prosecutor during her closing:
“So putting it all together, what do we have that
establishes Davion Harrison is the person who shot at the 7-
Eleven, is the person who was one of the murderers at the
Firestone intersection? We have got the eyewitness. We have got
the bullets, the revolver evidence. We have got the report card
18
that was found at the scene. And you will have that photograph,
by the way, that shows where the report card was found.
“You have Mr. Harrison who was named by Mr. Frison in
that cell recording. Mr. Frison did not appear to be aware he was
being recorded, the evidence has shown. And at the very end,
when he is asked, ‘Hey, I might run into your crimey. What is
the name of your crimey?’ and he says, ‘Davion;’ so Mr. Frison
also provides the name of the other person that was committing
the murder with him.
“We have got Mr. Harrison’s statements in the cell. What
we have specifically there is he is talking about how the 7-Eleven
camera wouldn’t pick him up because he was to the side and it
covers the front. . . . So listen to it. You will hear him slip and he
relates very specific details during this recorded jail conversation
where he is talking about details that who would know? The
murderer would know. . . .
“And, of course, we have got the confession to Renee
Lloyd.”11
Harrison attempts to discount the evidence we have cited,
contending it only places him at the 7-Eleven, not at Firestone
and Rayo. He asserts his own statements to Lloyd and the
Perkins agent placing him at the 7-Eleven did not “ipso facto
prove beyond a reasonable doubt he shot Lawson at Firestone
and Rayo.” He also contends the jury’s request for a readback of
Hunter’s “testimony identifying Davion Harrison at [the] final
scene” demonstrated they struggled with his misidentification
defense, implying the evidence against him was not
11 As we have already observed, Renee Lloyd’s statement to
officers about Harrison’s inculpatory statements was videotaped
and played to the jury.
19
overwhelming. According to Harrison, Frison’s statement thus
“unfairly tipped the balance against Harrison.”
We are not persuaded. Harrison ignores that he confessed
to Lloyd that he was the shooter without limiting his culpability
to a single location. As to his statement to the Perkins agent, the
jury could reasonably infer Harrison was at the 7-Eleven from his
assertion that the cameras at the 7-Eleven would not have picked
him up because they were facing the wrong way and because he
was dark skinned on a dark night. Harrison would not know any
of this if he were not at the 7-Eleven. The video evidence showed
that the 7-Eleven shooter got back into the SUV in which he
arrived and the same SUV is shown in multiple videos pursuing
Lawson’s tow truck to Firestone and Rayo. The video evidence
and Harrison’s own statements thus link his presence at the 7-
Eleven with the shooting at Firestone and Rayo even without
Hunter’s testimony.
Given the evidence connecting Harrison to Rayo and
Firestone, we disagree with Harrison’s speculation that his guilt
was a close question simply because the jury requested read back
of Hunter’s testimony placing Harrison at Rayo and Firestone.
Harrison has failed to show it is reasonably probable a
more favorable result would have been obtained absent the
admission of Frison’s statement.
c. Severance
Harrison’s challenge to the admission of Frison’s
incriminating statement continues: He contends the court
prejudicially erred when it refused to sever the trial, thus
depriving him of due process and a fair trial.
“The Legislature has expressed a preference for joint trials;
therefore, two or more defendants jointly charged with crimes
20
must be tried together unless the court orders separate trials.”
(People v. Sanchez (2016) 63 Cal.4th 411, 463 (Sanchez); People v.
Manriquez, supra, 37 Cal.4th at p. 574; Pen. Code § 1098.) “The
court has discretion to order separate trials if there is an
incriminating confession, prejudicial association, likely confusion
due to evidence on multiple counts, conflicting defenses, or the
possibility that a codefendant might provide exonerating
testimony at a separate trial.” (Sanchez, at p. 464.) “We review
the court’s denial of severance for abuse of discretion based on
the facts as of the time of the ruling. If the court properly denied
severance at the time, the reviewing court may reverse a
judgment only if it finds that the joint trial caused gross
unfairness that denied due process.” (Ibid.)
Here, both defendants were charged with the murder of the
same victim arising out of a single chain of events. These factors
presumptively supported the trial court’s reasonable denial of
severance. (People v. Tafoya (2007) 42 Cal.4th 147, 162.)
Harrison argues that the admission of Frison’s statement
required severance under Bruton, supra, 391 U.S. at page 137.
In Bruton, the high court held that the introduction of a
codefendant’s confession implicating the defendant in a joint trial
violated the confrontation cause, even if the jury had been
instructed to consider the confession only against the
codefendant.
Bruton does not control here. The confrontation clause
implicates only hearsay statements that are testimonial (People
v. Cage (2007) 40 Cal.4th 965, 981), and Frison’s statement was
not testimonial. The genesis of this rule is two United States
Supreme Court opinions, Davis v. Washington (2006) 547 U.S.
813, 825 [“statements made unwittingly to a Government
21
informant” “were clearly nontestimonial”] and Crawford, supra,541 U.S. at page 36, both of which followed Bruton by some three
decades. Our Supreme Court in People v. Cortez (2016)
63 Cal.4th 101, 129 held in a setting similar to this one that the
Bruton “decision is inapposite” and that in Davis v. Washington,
supra, “the high court unequivocally held ‘that the confrontation
clause applies only to testimonial hearsay statements and not to
[hearsay] statements that are nontestimonial.’ ”
As our colleagues in Division 6 stated in People v. Arauz
(2012) 210 Cal.App.4th 1394, 1402 (Arauz), “[S]tatements
unwittingly made to an informant are not ‘testimonial’ within the
meaning of the confrontation clause.” (See also People v.
Gallardo (2017) 18 Cal.App.5th 51, 67 [“To be ‘testimonial’ under
Crawford, the statement must have been “given and taken
primarily for the purpose [of] . . . establish[ing] or prov[ing] some
past fact for possible use in a criminal trial.”].) Harrison urges
that Arauz was wrongly decided. We disagree and apply the
Supreme Court’s decisions in Davis v. Washington and Crawford
v. Washington to conclude that Bruton did not require severance.
Nor was severance compelled because of conflicting
defenses. As an initial matter, Frison’s and Harrison’s defenses
were not antagonistic. Antagonistic defenses are ones that are
irreconcilable, such as when the defendants cast blame on one
another. (People v. Hardy (1992) 2 Cal.4th 86, 168.) Neither
defendant here put blame on the other. Nor were their defenses
otherwise irreconcilable; that is, the jury’s decision to accept or
reject Harrison’s defense that he was not present during the
shooting had no bearing on whether it accepted or rejected
Frison’s defense that he shot Lawson in defense of Moore. (See
also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 42
22
[antagonistic defenses did not overcome the “abundant”
independent evidence establishing both defendants’ guilt].)
Harrison relies on People v. Chambers (1964)
231 Cal.App.2d 23 and United States v. Tootick (9th Cir. 1991)
952 F.2d 1078, to support his severance argument. Those cases
are distinguishable. Chambers had nothing to do with the
confrontation clause or admission of hearsay. The court found
that the conduct alleged against one defendant would be too
prejudicial against the other defendant in a joint trial and
reversed the defendant’s conviction on that basis. (Chambers,
supra, at pp. 28–29.)
In Tootick, each defendant argued that the other defendant
acted alone. The defendants presented mutually exclusive
defenses where the acceptance of one party’s defense
compromised the acquittal of the other party. (Tootick, supra,
952 F.2d at pp. 1081–1082.) Again, that is not our case.
3. The Prosecutor Did Not Commit Misconduct During
Closing Argument
Defendants next take issue with statements made by the
prosecutor during her closing arguments. Harrison contends she
misstated the law regarding the burden of proof and heat of
passion voluntary manslaughter. She additionally appealed to
the passion and prejudice of the jury by labelling the defendants
as “murderers” and misstated the evidence. Frison joins in some
of these arguments.
a. Legal Principles
The prosecution has broad discretion to argue to the jury
its view of what the evidence shows. (People v. Spector (2011)
194 Cal.App.4th 1335, 1403.) “ ‘To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the
23
defendant must show a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, we
“do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s
statements.’ ” (Ibid.) We thus review a claim of prosecutorial
misconduct under the abuse of discretion standard of review.
(People v. Alvarez (1996) 14 Cal.4th 155, 213.)
The abuse of discretion standard does not afford a
prosecutor carte blanche to commit misconduct during argument
to the jury. “ ‘ “[W]hile he may strike hard blows, he is not at
liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a just one.”
[Citations.]’ ” (People v. Daggett (1990) 225 Cal.App.3d 751, 759;
see e.g. People v. Arredondo (2018) 21 Cal.App.5th 493[“relentless” reference to defendants as “cockroaches”].)
b. Misstatements Relating to the Burden of Proof
Harrison contends the prosecutor “eviscerated” her burden
to prove her case beyond a reasonable doubt in three ways:
(1) urging the jury to look at all the evidence rather than “one
little piece;” (2) arguing, “I have always pointed you to the
specific evidence in support of what I am talking about;” and
(3) stating the jury’s verdict must be based on evidence, not an
assumption.
As an initial matter, Harrison has failed to preserve the
misconduct claim because he failed to object at the time and
request a curative jury instruction. (People v. Winbush (2017)
2 Cal.5th 402, 482 (Winbush); People v. Williams (2013)
24
56 Cal.4th 630, 671 (Williams).) Even if the claims were
preserved, these comments do not approach misconduct.
Most telling, each argument comports with the court’s
instructions to the jury that it must consider all the evidence in
reaching its verdict. (See e.g., CALCRIM No. 223 [“You must
decide whether the fact in issue has been proved based on all the
evidence”]; CALCRIM No. 375 [jury “must impartially compare
and consider all the evidence that was received throughout the
entire trial”]; CALCRIM No. 200 [that it “must decide what the
facts are . . . based only on the evidence that has been
presented”]; CALCRIM No. 301 [“Before you conclude that the
testimony of one witness proves a fact, you should carefully
review all the evidence”].) Whether considered together or
separately, the prosecutor did not minimize the People’s burden
to prove its case beyond a reasonable doubt.
Defendants also claim the prosecutor’s comments conflict
with the court’s circumstantial evidence instructions. We find no
conflict.
c. Misstatements Related to Provocation and Heat of
Passion Voluntary Manslaughter
Defendants contend the prosecutor misled the jury on the
provocation and heat of passion elements of voluntary
manslaughter by arguing defendants provoked Lawson first and
could not use that provocation to justify murder. Again,
defendants have forfeited this issue because neither defendant
objected to the argument, nor did they request a jury instruction
on the subject. (Winbush, supra, 2 Cal.5th at p. 482; Williams,
supra, 56 Cal.4th at p. 671.)
In any event, the prosecutor did not misstate the law; the
initial provocation must come from the victim, not the defendant.
25
(People v. Lee (1999) 20 Cal.4th 47, 59; People v. Johnston (2003)
113 Cal.App.4th 1299, 1312.) By her comments, the prosecutor
merely questioned who initiated the provocation that defendants
claim led to the killing: whether Harrison initiated it by shooting
at Lawson at the 7-Eleven or whether Lawson initiated it by
towing Moore’s car with Moore in it. This was not misconduct but
a direction to the jury to decide what happened.
d. Photographs of the Defendants Labelled “Murderer”
Defendants next contend the prosecutor improperly
vouched and appealed to the jury’s passion and prejudice when
she presented photographs of the five people who chased Lawson.
The photographs, displayed on a PowerPoint slide, had a
description extended diagonally over each person’s face in red
capitalized letters and bold font. Harrison’s photograph was
labelled “7-11 SHOOTER THEN MURDERER,” Harrison’s
stepbrother was labelled “SUV DRIVER AIDER/ABETTER,”
Hunter’s brother was labelled “CAMARO DRIVER,” Hunter was
the “WITNESS,” and Frison was the “SUV DRIVER
MURDERER.” The trial court overruled defense counsels’
objections.
On appeal, defendants contend the labels were
inflammatory, constituted improper vouching and referred to
matters not in evidence. Frison additionally claims misconduct
because Hunter is shown in a favorable light, as a smiling
witness, whereas the other individuals were not smiling in their
photographs.
We find no misconduct. The prosecution has broad
discretion to argue to the jury its view of what the evidence
shows. (People v. Spector, supra, 194 Cal.App.4th at p. 1403.)
The slide set forth the prosecution’s theory of the case: Both
26
defendants were charged with murder and Harrison was charged
with shooting at an occupied vehicle. Meanwhile, Hunter
testified at trial as a witness; Harrison’s stepbrother drove
Harrison’s SUV, thereby enabling Harrison to pursue Lawson;
and Hunter’s brother drove the Camaro. We see no likelihood
that the passions of the jury were inflamed by a pictorial
representation that brought home the testimony about the
various participants and their roles. (See e.g., People v. Edwards
(2013) 57 Cal.4th 658, 742 [no misconduct where prosecutor
simply asserted based on the evidence that defendant was the
“killer”].)
Defendants’ reliance on People v. Arredondo, supra,
21 Cal.App.5th 493 is unavailing. There, the prosecutor
repeatedly throughout the trial called the defendants and other
participants in the crime “cockroaches,” thus dehumanizing them
and suggesting they were not entitled to any individual
consideration or justice. (Id. at p. 503.) That is not the case here.
Nor are we persuaded the prosecutor improperly vouched
for anyone. Vouching “ ‘ “involves an attempt to bolster a witness
by reference to facts outside the record.” ’ ” (People v. Huggins
(2006) 38 Cal.4th 175, 206–207.) Here, the labels and
photographs did not suggest the prosecutor had personal
knowledge of facts outside the record, facts which enhanced her
case.
e. Misstatement of the Evidence
Harrison alone contends the prosecutor misstated the
evidence during her closing argument. He has failed to preserve
this issue because he did not object to these statements at the
time they occurred. Nor did he request a curative jury
27
instruction. (Winbush, supra, 2 Cal.5th at p. 482; Williams,
supra, 56 Cal.4th at p. 671.)
We also reject the argument on its merits. Harrison
contends four comments were improper. We conclude each
represents reasonable commentary (including by inference) on
the evidence. (People v. Jackson (2016) 1 Cal.5th 269, 349.)
(1) The prosecutor asserted Harrison knew details about
the crime that only the murderer would know, including that
after he was shot, Lawson was seen “twitching.” This was a fair
comment on Harrison’s statement to the undercover officer that
Lawson was twitching after he was shot. At trial, Hunter
testified Lawson was unresponsive after the shooting. The
prosecutor merely asked the jury to infer that no one besides the
murderer could have seen Lawson twitching if Hunter, who
observed Lawson almost immediately after the shooting, did not.
(2) The prosecutor asserted the video of the shooting at
Firestone and Rayo showed witness Arana “opening the door to
peek” when, in fact, the video did not show Arana opening a door.
Even if we were to conclude the evidence did not show the door
opening, any concern was immediately cured by the prosecutor’s
exhortation that the jurors watch the video frame by frame to
ascertain what happened.
(3) The prosecutor speculated why Harrison failed to
question his parents about whether the report card was found in
their home rather than at Firestone and Rayo. This was not
misconduct. The prosecutor did nothing more than attempt to
dispel Harrison’s conspiracy theory regarding when and where
the police found the report card.
(4) The prosecutor asserted “both defendants [got] rid of
their cars and their weapons” when there was no affirmative
28
evidence Harrison got rid of a gun. This comment was a
reasonable inference from the evidence. The testimony was that
a second gun was fired that night: Hunter testified he saw
Harrison with a gun, and a fired bullet was recovered at 7-
Eleven; and Arana testified he heard two different types of guns
being fired at the murder scene. The second gun was never
recovered. Harrison admitted to his girlfriend’s sister that he got
rid of his car. From this evidence, the prosecutor could fairly
argue that Harrison also got rid of his gun.
4. The Failure to Instruct on Accomplice Testimony and
on Defense of Another as to Harrison Were Harmless
Harrison next argues the trial court prejudicially erred
when it instructed the jury regarding accomplice testimony and
imperfect defense of another. In determining instructional error,
we consider the instructions as a whole and assume the jurors
are “intelligent persons and capable of understanding and
correlating” the jury instructions they are given. (People v.
Ramos (2008) 163 Cal.App.4th 1082, 1088.)
a. Accomplice Testimony Instructions
Harrison first contends the trial court erred by failing to
instruct the jury that Hunter’s trial testimony and Frison’s
jailhouse statement required corroboration because the two men
were accomplices to the crime. He contends the trial court should
have given CALCRIM Nos. 301, 334 and 373.12 We find any error
harmless.
12 CALCRIM No. 301 includes a bracketed portion to be given
if the testimony of an accomplice or other witness requires
corroboration. (Bench Notes to CALCRIM No. 301 (Nov. 2021);
People v. Chavez (1985) 39 Cal.3d 823, 831–832.)
29
The trial court has a sua sponte duty to instruct that a
“conviction cannot be had upon the testimony of an accomplice
unless it be corroborated by such other evidence as shall tend to
connect the defendant with the commission of the offense . . . .”
(§ 1111; People v. Tobias (2001) 25 Cal.4th 327, 331.) “A trial
court’s failure to instruct on accomplice liability under section
1111 is harmless if there is ‘sufficient corroborating evidence in
the record.’ [Citation.] To corroborate the testimony of an
accomplice, the prosecution must present ‘independent evidence,’
that is, evidence that ‘tends to connect the defendant with the
crime charged’ without aid or assistance from the accomplice’s
testimony. [Citation.] Corroborating evidence is sufficient if it
tends to implicate the defendant and thus relates to some act or
fact that is an element of the crime. [Citation.] ‘ “[T]he
corroborative evidence may be slight and entitled to little
consideration when standing alone.” [Citation.]’ ” (People v.
Avila (2006) 38 Cal.4th 491, 562–563.)
Here, there was sufficient corroborating evidence
connecting Harrison to the charged crimes without Hunter’s
CALCRIM No. 334 provides, in relevant part, that if the
jury decides the witness is an accomplice, the jury may use the
statement or testimony of the accomplice that tends to
incriminate the defendant to convict the defendant only if the
statement or testimony is corroborated by independent evidence
tending to connect the defendant to the commission of the crime.
CALCRIM No. 373 advises the jury not to speculate why
“someone who appears to have been involved might not be a
codefendant in this particular trial.” It includes a bracketed
portion which reads, “[This instruction does not apply to the
testimony of .]”
30
testimony or Frison’s statement. In her videotaped statement,
Renee Lloyd told the police that Harrison admitted his
participation in the murder. Harrison indicated to the
undercover agent that he was at the 7-Eleven but that he was not
caught on camera due to its location and his dark skin.
Harrison’s report card was found at the murder scene. Given this
independent evidence, any error in failing to instruct on
accomplice testimony was harmless.13
b. Instructions on Defense of Another
Harrison also challenges the trial court’s direction to the
jury, over his objection, that the imperfect defense of another
instruction could be applied only to reduce Frison’s murder
charge to voluntary manslaughter and not to Harrison, despite
the fact Harrison was “in the exact same place as” Frison. Even
if we were to assume that the instruction should have been given
as to Harrison, any error was harmless. Imperfect self-defense or
imperfect defense of another is not a true defense; it is rather “a
shorthand description” of one form of voluntary manslaughter, a
lesser included offense of murder. (People v. Rogers (2006)
39 Cal.4th 826, 883.)
“Any error in failing to instruct on imperfect defense of
others is state law error alone, and thus subject, under article VI,
section 13 of the California Constitution, to the harmless error
test articulated in People v. Watson[, supra, 46 Cal.2d at p. 836].”
(People v. Randle (2005) 35 Cal.4th 987, 1003 overruled on a
13 For the same reasons, we reject Harrison’s argument that
the trial court’s failure to give accomplice instructions violated
his federal constitutional right to due process and a fair trial.
(People v. Lewis (2001) 26 Cal.4th 334, 371.)
31
different ground by People v. Chun (2009) 45 Cal.4th 1172, 1201;
see People v. Gonzalez (2018) 5 Cal.5th 186, 209.)14
When Harrison fired multiple shots at Lawson, the tow
truck had stopped and Lawson was fleeing. There is nothing to
suggest that Lawson presented any danger to Moore at that time.
No reasonable jury could have found that Harrison was defending
Moore under these circumstances. In any event, the jury rejected
the defense of another doctrine as to Frison. No reasonable jury
would have found it applied to Harrison and not to Frison.
5. Trial Counsel Was Not Ineffective and Defendants
Would Not Have Received a Different Result
Defendants contend their trial counsel rendered ineffective
assistance in a number of ways.15 We find none.
14 Harrison contends prejudice in this instance should be
assessed under the standard articulated in Chapman, supra,
386 U.S. at page 24. (Compare People v. Franklin (2018)
21 Cal.App.5th 881, 890–891 [stating the standard is unsettled]
with People v. Schuller (2021) 72 Cal.App.5th 221, 238 [indicating
Watson standard applied], review granted Jan. 19, 2022,
S272237.) We need not decide the issue because the error was
harmless under either standard.
15 To the extent defendants allege deficient performance by
trial counsel in connection with their other claims of error, such
as failing to object to the prosecutor’s purported misconduct, to
the jury instructions, or to dismissal of a juror, we either have
determined no error occurred or separately address the issue in
the course of our analysis. “Counsel’s failure to make a futile or
unmeritorious objection is not deficient performance.” (People v.
Beasley (2003) 105 Cal.App.4th 1078, 1092 (Beasley).)
32
a. Legal Principles
“To demonstrate ineffective assistance of counsel,
defendant must show both that counsel’s representation fell
below an objective standard of reasonableness under prevailing
professional norms, and that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result would
have been different.” (People v. Cleveland (2004) 32 Cal.4th 704,
746 (Cleveland).) “Judicial scrutiny of counsel’s performance
must be highly deferential. . . . There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in
the same way. [Citation.]” (Strickland v. Washington (1984)
466 U.S. 668, 687–696.)
b. Firearms Expert Methodology and Conclusions
Defendants argue they received ineffective assistance of
counsel when their trial counsel failed to challenge the
methodology and conclusions of the prosecution’s firearms expert.
Relying on People v. Azcona (2020) 58 Cal.App.5th 504, 510
(Azcona), defendants assert the expert’s use of microscopic
comparison of bullet markings and toolmark analysis was
undermined by recent studies, and trial counsel should have
more extensively cross-examined the expert.
The firearms expert in Azcona used the same methodology
to compare bullet casings as the prosecution’s firearms expert
used in this case. The Azcona defense counsel presented
legitimate criticism from credible sources that undermined the
reliability of the method used and cast doubt on the expert’s
conclusion. (Azcona, supra, 58 Cal.App.5th at p. 512.) While the
court held this contrary evidence did not render inadmissible the
testimony of the prosecution’s expert, the court found that the
33
defense evidence was relevant and important for the jury to
consider in assessing the expert testimony. (Ibid.)
“[N]ormally the decision to what extent and how to cross-
examine witnesses comes within the wide range of tactical
decisions competent counsel must make.” (Cleveland, supra,
32 Cal.4th at p. 746.) Defense counsel could have made tactical
decisions not to challenge the expert’s testimony here because the
evidence was not critical to their respective defenses. Frison
admitted he shot Lawson; the expert’s testimony tying the
casings at the crime scene to the casings in Frison’s bedroom was
not significant to Frison’s defense that he acted in defense of
Moore. As to Harrison, the expert’s testimony was not significant
to Harrison’s misidentification defense. The expert did not
identify Harrison as a shooter, only that a bullet recovered from
Lawson’s body was fired from the same gun as a bullet found at
the 7-Eleven. On this record, we cannot say there was no tactical
reason to avoid further cross-examination of the firearm expert.
c. Renee Lloyd Opinion on Remorse
Harrison also faults his trial counsel for failing to object to
Renee Lloyd’s statement to the police that he lacked remorse for
the shooting. Harrison asserts Lloyd’s comments were irrelevant,
speculative opinions about his state of mind because “remorse is
irrelevant at the guilt phase.” (People v. Jones (1998) 17 Cal.4th
279, 307.) This evidence was not offered to prove that Harrison
was a cold-blooded killer. Rather, it was to put into context the
apparent reason why Lloyd talked to the police and why she was
lying when she said at trial she could not remember what she
had told the police. Although she claimed she only met with the
law enforcement because officers had harassed her, she told a
different story when interviewed: She believed Harrison
34
“need[ed] to get in trouble for that [murder]. He didn’t have any
remorse for it. He don’t care about the man.” Because Lloyd’s
testimony was admissible, any objection would have been futile.
(Beasley, supra, 105 Cal.App.4th at p. 1092.)
Harrison also contends his counsel was deficient for failing
to object during the prosecutor’s closing argument when she
repeated a portion of Lloyd’s statement relaying Harrison’s
confession and argued: “That’s what you get. That’s what Steve
Lawson gets for trying to take their mother’s (sic) car. And this
provides you some insight into what Mr. Harrison was thinking
when he committed this murder.” The argument was fair
comment on the evidence, particularly on the statements Lloyd
made to the police.
d. Alternate Defense Theories
Harrison next contends his trial counsel rendered
ineffective assistance by failing to offer alternate theories similar
to what Frison’s counsel argued: provocation-based second
degree murder, imperfect and perfect defense of another, and
heat of passion voluntary manslaughter. Harrison’s trial counsel
instead focused on reasonable doubt and misidentification,
attacking the prosecution’s evidence by contending, among other
things, that Hunter lied about Harrison being the shooter. Trial
counsel also emphasized a lack of physical evidence connecting
Harrison to the crime and Harrison’s own statements to the
undercover officer that he was not present at the scene of the
crime.
“Failure to argue an alternative theory is not objectively
unreasonable as a matter of law.” (People v. Thomas (1992)
2 Cal.4th 489, 531; see also People v. Cunningham (2001)
25 Cal.4th 926, 1005 [counsel was not ineffective for arguing
35
identification rather than a lesser included offense to first degree
murder].) Again, on this record, we cannot say that no
reasonable attorney would have made this tactical choice.
e. Misstatement Regarding the Burden of Proof
Harrison next faults his trial counsel for comparing the
reasonable doubt standard to the decision to marry and a “rickety
bridge.” We conclude counsel did not misstate the law regarding
reasonable doubt.
At closing, Harrison’s trial counsel argued: “The first thing
that the judge said was the law regarding reasonable doubt. . . .
There’s something about abiding conviction in there. Abiding
conviction, I believe, means something that’s long lasting. You
are not going to make a quick easy decision. You are going to live
with your decision because it’s an important decision. When you
get married, you are not just going to get married – well, most of
us won’t. You are going to reflect. You are going to think about
it. You are going to make a long lasting decision when you get
married because it has life-long consequences.”
Counsel ended his closing argument with a picture of a
“rickety old bridge” and stated, “You guys are going to have to
look at that bridge and see, ‘is that a reliable bridge? Do I really
want to walk on that bridge? Is that reliable?’ You don’t have to
walk on that bridge. Davion has to walk on that bridge. Is that
reliable? You can come back with not guilty because Davion
wasn’t there. He was not the shooter. He wasn’t on that 7-
Eleven video, and he tells us. Your job is to determine that
bridge is reliable for Davion to walk on.”
Relying on People v. Nguyen (1995) 40 Cal.App.4th 28, 36,
Harrison argues these comments lowered the prosecutor’s burden
of proof. In Nguyen, it was the prosecutor – not defense counsel –
36
who suggested the reasonable doubt standard was used in daily
life to decide such questions as whether to change lanes when
driving or whether to marry. The court found the argument
improper but not prejudicial. (Id. at pp. 36–37.) Defense counsel
here did not suggest a burden of proof other than beyond a
reasonable doubt or that the jury’s decision was comparable to
changing lanes. He argued that reasonable doubt was something
that was lasting and had “life-long consequences.” Counsel drew
an analogy to the “abiding conviction” found in the reasonable
doubt instruction.
We find the rickety bridge argument on appeal even less
persuasive. The rickety bridge metaphor did not equate the
jury’s decision about defendants’ guilt or innocence to decisions
relating to “the ordinary affairs of life.” It was instead a visual
cue to support counsel’s argument that, like the bridge, the
prosecution’s evidence was unsound.
f. Jury Instructions
Harrison also contends trial counsel was deficient when he
specifically requested the trial court remove CALCRIM No. 3470
from the jury instructions. CALCRIM No. 3470 sets forth defense
of another as a defense to a non-homicide and would have applied
to the charge for shooting at an occupied vehicle. The court
instead gave CALCRIM No. 965, which sets forth the elements of
shooting at an occupied motor vehicle and which requires the jury
to find “[t]he defendant did not act in defense of someone else.”
A review of these instructions discloses a tactical reason for
trial counsel’s decision to forego CALCRIM No. 3470 in favor of
CALCRIM No. 965. CALCRIM No. 3470 would have required the
jury to find Harrison reasonably believed Moore was in danger
and an immediate use of force was necessary. It also required
37
the jury to find Harrison “used no more force than was
reasonably necessary to defend against that danger.” (CALCRIM
No. 3470.) By contrast, CALCRIM 965 had none of this
language. Trial counsel could reasonably have decided to avoid
the more stringent requirements of CALCRIM No. 3470.
Harrison also contends his trial counsel was deficient for
failing to request CALCRIM No. 305: “You have heard evidence
that defendant Frison made a statement (out of court/before
trial). You may consider that evidence only against him, not
against any other defendant.” The parties addressed the
admissibility of Frison’s statement as to both defendants in their
pretrial motions. The trial court found the statement was
admissible. Any further objection would have been futile.
(Beasley, supra, 105 Cal.App.4th at p. 1092.) In any case, as we
discuss in section 2, the admission of Frison’s statement to police
that referenced Harrison was not prejudicial. Because the second
prong of an ineffective assistance of counsel claim requires the
showing of prejudice (Cleveland, supra, 32 Cal.4th at p. 746) and
we have found no prejudice from the admission of the statement,
it follows no ineffective assistance occurred.
6. The Trial Court Did Not Err When It Excused A Juror
Who Was Sick But Not One Who Had Limited English
Skills
Defendants assert the trial court abused its discretion
when it failed to discharge a juror who indicated he lacked
sufficient English-language skills to serve. Harrison separately
contends the court erred when it excused a Black juror who was
sick just days before the end of trial. We find no abuse of
discretion.
38
a. Legal Principles
A juror may be discharged if at any time during trial, he or
she “dies or becomes ill, or upon other good cause shown to the
court is found to be unable to perform his or her duty.” (§ 1089.)
Good cause may include “insufficient command of the English
language to allow full understanding of the words employed in
instructions and full participation in deliberations.” (People v.
Elam (2001) 91 Cal.App.4th 298, 316.)
“We review a trial court’s decision to discharge a juror for
good cause ‘for abuse of discretion. [Citations.] The juror’s
inability to perform the functions of a juror must appear in the
record as a ‘demonstrable reality’ and will not be presumed.
[Citation.] The trial court’s finding [that] ‘good cause’ exists will
be upheld on appeal if substantial evidence supports it.
[Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 349.)
b. The Limited-English Speaking Juror
Defendants contend the trial court erred when it failed to
discharge Juror No. 10, who twice expressed concerns about his
English-language fluency. Defendants have forfeited this
argument by not raising it in the trial court.
(1) Proceedings Below
During voir dire, Juror No. 10 correctly answered the
court’s basic questions regarding his occupation, marital status,
and family. When Harrison’s counsel asked if he believed he
could be “fair and impartial,” he responded, “yes.” During the
prosecutor’s questioning, Juror No. 10 expressed concern about
his English fluency, estimating he understood “approximately” 70
percent of the prosecutor’s questions and the other potential
jurors’ answers. He stated he was a general contractor who
spoke Korean and English at work.
39
After the jury was empaneled, Juror No. 10 told the court
he would have a “[h]ard time, because I have to guessing what
they say and then it’s hard to conversation with them.” The court
advised, “you don’t have to speak, like, college level or with a
master’s in English. You just have to have a common
understanding of English. And you seem to answer all the
questions correctly.” Juror No. 10 did not protest further and
acquiesced, “Okay.” Neither defense counsel asked to discharge
Juror No. 10, and the court continued to the selection of
alternates.
(2) Analysis
Defense counsels’ failure to request dismissal of Juror No.
10 forfeits the issue on appeal. (People v. Rangel (2016)
62 Cal.4th 1192, 1212; People v. Moreno (2011) 192 Cal.App.4th
692, 704-705.) When Juror No. 10 initially stated he only
understood 70 percent of the proceedings, defense counsel had
the option to conduct further voir dire of the juror, challenge him
for cause, or exercise a peremptory challenge (a defense
peremptory was still available). When, after the panel had been
sworn, the juror again expressed concern about his English
proficiency, defendants could have requested his dismissal and
replacement with an alternative juror or ask to reopen voir dire
to select another juror from a full panel. Counsel did neither and
may not now assert error.
Turning briefly to the merits, the trial court was best
situated to evaluate the competence of Juror No. 10 to serve. We
will not second guess the court’s discretionary call. (Patton v.
40
Yount (1984) 467 U.S. 1025, 1038; People v. Lomax (2010)
49 Cal.4th 530, 567.)16
c. The Sick Juror
Harrison alone challenges the discharge of Juror No. 1 due
to illness. Because Juror No. 1 was “one of the few” Black jurors,
Harrison contends the excusal violated his right to the jury to
which he had consented and to a jury drawn from a
representative cross-section of the community. Harrison does not
dispute Juror No. 1 was sick but contends it was incumbent on
the trial court to consider granting a continuance or other
alternatives to excusal.
(1) Proceedings Below
On Monday morning, July 8, 2019, after the prosecution
had rested and before the defense began its presentation, Juror
No. 1 informed the trial court he had been ill since Thursday,
July 4, 2019. He explained he was coughing and congested, had a
sore throat, and had not slept very well. He was unable to take
any medication for the symptoms due to contraindications with
other medication. When Harrison’s counsel asked if he would be
able to stay “a couple more days” since the trial was nearly
16 We are not persuaded by People v. Szymanski (2003)
109 Cal.App.4th 1126, the case relied on by defendants. There,
the juror spoke in broken English, her words were often
unintelligible, and she asked for clarification several times. She
indicated she did not understand certain terms used during voir
dire, including “law enforcement” and “P.D.” (Id. at pp. 1129–
1130.) Both the prosecution and the defense requested her
removal for cause. The Szymanski court reversed the defendant’s
convictions, finding the trial court abused its discretion when it
denied the parties’ request. (Id. at p. 1132.) Those are not our
facts.
41
completed, Juror No. 1 responded, “if I wasn’t so listless and
coughing. The coughing is what really gets me, plus the sore
throat.” Noting that the trial was likely to finish by Friday (four
days away), the court indicated it was doubtful Juror No. 1 would
recover in time. The court cited that the juror was “older and,
therefore, more susceptible to a stronger attack for a simple cold.”
Harrison’s counsel agreed Juror No. 1’s illness was real but
objected to his removal because he was “one of the few Blacks” on
the jury. Frison’s counsel did not object. The court excused Juror
No. 1, and an alternate was seated.
(2) Analysis
Here, Juror No. 1’s inability to perform the functions of a
juror appeared in the record as a demonstrable reality — he was
lethargic, coughing, and unable to take medication for his
symptoms. Defense counsel did not argue the juror was
malingering.
In a similar setting, the California Supreme Court
explained in People v. Landry (2016) 2 Cal.5th 52, 89, “Whether,
as [defendant] insists, a three-day continuance would have been
reasonable is not the question we must answer. The question is
whether, under these circumstances, the trial court’s decision to
proceed with an alternate juror was an abuse of discretion. In
light of the uncertainty of the juror’s prognosis and the crucial
point at which the trial had arrived, we conclude the trial court
did not abuse its discretion.” The court did not immediately
excuse the juror but inquired if he could stay on for a few more
days. When the juror said he could not, the trial court replaced
the juror. We find no abuse of discretion.
42
7. The Trial Court Properly Denied the Jury’s Request
for a Dictionary
As they made their way back to the jury room for further
deliberations, a juror orally asked for a dictionary or dictionary
definition. Neither was provided. Defendants contend the court
prejudicially erred by not inquiring about the reason the jury
wanted a dictionary or dictionary definition, particularly given
Juror No. 10’s professed lack of English fluency. Defendants do
not contend it was error not to provide a dictionary. (See People
v. Karis (1988) 46 Cal.3d 612, 642.)
The original request for a dictionary or dictionary definition
and the court’s response occurred off the record. As a result, at
our request, the trial court held a hearing to settle the
proceedings on the point. (Cal. Rules of Court, rule 8.137.)
Instead of preparing a standalone settled statement, the court
(with counsel’s agreement) designated the transcript of that
hearing as the settled statement.
The settled statement does not disclose the circumstances
surrounding the request; neither the court nor counsel had a
clear recollection of what had happened. Indeed, the court could
only recall a dictionary was requested in one of two “almost back
to back” murder cases. The court did not recall its response but
was firm it would not have provided a dictionary and would have
“probably refer[red] them back to any of the jury instructions
that says all definitions are explained in the jury instructions and
they are not to refer to a dictionary in their deliberations.”
Frison’s counsel confirmed no dictionary was provided. Neither
the prosecutor nor Harrison’s counsel had any additional memory
of the request.
43
The record does not disclose error: The court properly
declined to provide the dictionary or a definition from one.
(People v. Karis, supra, 46 Cal.3d 612, 642.) Defendants’ claim
that the trial court failed to comply with section 1138 is off the
mark.17 That section requires that jury questions must be given
in open court in the presence of, or after notice to, the prosecution
and defense. The meager record we have does not suggest non-
compliance. Nothing in section 1138 requires the court to make
further inquiry into the reason for the jury’s request, and on this
record we cannot find any failure to inquire was error.
8. Cumulative Errors Do Not Require Reversal
Defendants argue that, even if individual errors do not
require reversal, their convictions should be reversed because of
cumulative errors. We have found harmless error where the trial
court: (1) admitted Frison’s statement that suggested Harrison
was his “crimey”; (2) failed to instruct on accomplice testimony;
and (3) failed to instruct on defense of another as to Harrison.
These errors do not involve Frison and thus we reject Frison’s
assertion of cumulative error. (People v. Duff (2014) 58 Cal.4th
527, 562 [“In the absence of error, there is nothing to cumulate”].)
As to Harrison, we conclude these errors were harmless even if
we were to aggregate them.
17 Section 1138 provides: “After the jury have retired for
deliberation, if there be any disagreement between them as to the
testimony, or if they desire to be informed on any point of law
arising in the case, they must require the officer to conduct them
into court. Upon being brought into court, the information
required must be given in the presence of, or after notice to, the
prosecuting attorney, and the defendant or his counsel, or after
they have been called.”
44
a. Legal Principles
“Lengthy criminal trials are rarely perfect, and this court
will not reverse a judgment absent a clear showing of a
miscarriage of justice. [Citations.]” (People v. Hill (1998)
17 Cal.4th 800, 844 (Hill).) “Nevertheless, a series of trial errors,
though independently harmless, may in some circumstances rise
by accretion to the level of reversible and prejudicial error.
[Citations.]” (Ibid.) Multiple errors related to the same issue
may also create a “negative synergistic effect, rendering the
degree of overall unfairness to defendant more than that flowing
from the sum of the individual errors.” (Id. at p. 847.)
Under the “cumulative error” doctrine, we reverse the
judgment if there is a “reasonable possibility” that the jury would
have reached a result more favorable to defendant absent the
combination of errors. (People v. Rogers (2006) 39 Cal.4th 826,
890, 911; People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.)
“The ‘litmus test’ for cumulative error ‘is whether defendant
received due process and a fair trial.’ ” (People v. Cuccia (2002)
97 Cal.App.4th 785, 795.)
In Hill, for example, the high court found reversal was
required where serious and pervasive prosecutorial misconduct
occurred, the trial court abdicated its judicial role to the sheriff’s
department to determine whether to shackle the defendant, the
bailiff was allowed to continue working in the courtroom after he
testified against the defendant, and the trial court erroneously
instructed the jury on a special circumstance allegation. (Hill,
supra, 17 Cal.4th at pp. 844-848.) The Hill court held the “sheer
number” of errors “raise[d] the strong possibility the aggregate
prejudicial effect of such errors was greater than the sum of the
prejudice of each error standing alone.” (Id. at p. 845.)
45
In People v. Jandres (2014) 226 Cal.App.4th 340, 356, the
court held the cumulative effect of the erroneous admission of
sexual assault propensity evidence and instructional error
required reversal of the judgment in a case that was largely “ ‘a
credibility contest’ ” between the victim and the defendant.
“Because defendant’ s credibility was the pivotal issue at trial,
and the [sexual assault propensity evidence] tended strongly to
impeach him, its erroneous admission likely weighed heavily in
the jury’s determination [of] whether defendant was guilty.” (Id.
at p. 360.)
b. Analysis
The harmless errors we have found in this case are not
comparable to the pervasive and fundamental errors that
occurred in the cases discussed above. Nor do they create a
“negative synergistic effect,” in part, because not all three errors
relate to the same issue. Here, the failure to instruct on
accomplice testimony and the admission of the “crimey”
statement implicate whether there is substantial evidence to find
that Harrison was one of the shooters. The failure to instruct on
defense of another relates to the likelihood that the jury would
have applied that defense to Harrison, even if he were a shooter.
Considering the cumulative effect of the lack of an
accomplice testimony instruction and the admission of the
“crimey” statement on the issue of substantial evidence, we again
observe that this was not a close case. Aside from Hunter’s
testimony and Frison’s statement, Harrison’s guilt was shown by
his confession to Renee Lloyd, his report card at the Firestone
and Rayo intersection, the ballistics evidence, and the video
evidence.
46
As to the failure to instruct on defense of another, we can
conceive of no rational scenario in which the jury would have
applied that defense to Harrison when it rejected the same
argument advanced by Frison, who, according to Harrison, was
“in the exact same place as” Harrison. As was the case with
Frison, there was no evidence Harrison attempted to check on
Moore at any time. Despite telling Lloyd that “it was for my
grandmother,” Harrison never said “they got grandma” during
the chase nor did he say anything about Moore at all to Lloyd.
Only after the chase had ended and Moore was out of danger
were shots fired.
Employing our Supreme Court’s standard for the prejudice
resulting from cumulative error, we conclude that the
accumulation of errors did not result “in the denial of a
fundamentally fair trial,” nor “brought about a miscarriage of
justice.” (Rogers, supra, 39 Cal.4th at pp. 890, 911; Hill, supra,17 Cal.4th at p. 844.)
9. The Trial Court Did Not Abuse Its Discretion in
Sentencing Harrison, Nor Did Counsel Provide
Ineffective of Assistance of Counsel
Harrison alone contends his case must be remanded for a
new sentencing hearing because the trial court improperly failed
to consider relevant mitigating factors, particularly when it
declined to strike the 25-years-to-life firearm enhancement. As
part of this argument, Harrison proposes it was error for the
court to sentence him without a probation report and without
youth-related evidence pursuant to People v. Franklin (2016)
63 Cal.4th 261 (Franklin). He also faults his trial counsel for
failing to submit a sentencing memorandum or presenting any
factors in mitigation at sentencing. We conclude Harrison’s
47
sentence was authorized by law and Harrison has failed to
demonstrate he received ineffective assistance of counsel.
Separately, we conclude Harrison is not entitled to remand
for a Franklin hearing.
a. Proceedings Below
After the verdicts, Harrison’s trial counsel requested time
to assemble Franklin evidence to be used at a future youth
offender parole hearing. Despite multiple continuances, no
Franklin evidence was presented at the time of sentencing, which
occurred approximately four months after the jury’s verdict.
At sentencing, Harrison and his mother spoke on his
behalf. They apologized to Lawson’s family. Harrison’s mother
noted her son was only 21 at the time of the shooting, his life was
just beginning, he had three small children, and he had not faced
a similar situation before. She asked the court for “mercy” for
Harrison.
The prosecutor asked for the maximum sentence for both
defendants, arguing the callousness of the crime and the
vulnerability of the victim were factors in aggravation. The
prosecutor presented statements from Lawson’s family. Lawson’s
eldest daughter accused Harrison of smirking at her “like [he]
didn’t care.” Harrison’s trial counsel explained that Harrison
smiles or smirks when he is nervous and “that has no bad intent.”
The parties did not submit sentencing memoranda.
The trial court sentenced Harrison to a term of 50 years to
life in state prison, comprised of 25 years to life for the first
degree murder conviction plus 25 years to life for the firearm
enhancement. The court acknowledged it had discretion to strike
the firearm enhancement but found it was in the interest of
justice not to do so because Harrison engaged in two separate
48
shootings of an unarmed man who was shot in the back.18
Against the prosecutor’s request for a seven-year consecutive
term (high term) on the conviction for shooting at an occupied
car, the court imposed a concurrent three-year term (low term)
and found the firearm enhancement as to that count did not
apply.
After the sentences were imposed, Harrison’s trial counsel
asked for a six-month nonappearance date for a Franklin hearing
and, when the court indicated it had a probation report for Frison
but not for Harrison, Harrison’s counsel asked the court to order
one. The court agreed. It set May 7, 2020, for the Franklin
hearing and ordered a post-plea report for Harrison to be
returned within a month.
b. Analysis of Sentencing Error Claim
On appeal, Harrison challenges only the court’s decision to
impose an additional 25 years to life under section 12022.53,
subdivision (d) for the personal and intentional discharge of a
firearm causing great bodily injury or death. We conclude the
trial court acted within its discretion
The factors a trial court must consider when determining
whether to strike a firearm enhancement “are the same . . . the
trial court must consider when handing down a sentence in the
first instance.” (People v. Pearson (2019) 38 Cal.App.5th 112,
117; People v. Flores (2021) 63 Cal.App.5th 368, 377.) In addition
to the factors expressly enumerated in California Rules of Court,
rule 4.428(b), the trial court is also to consider the factors listed
in Rule 4.410 (listing general objectives in sentencing), as well as
18 By contrast, the trial court imposed on Frison a lesser
firearm enhancement under section 12022.5, citing his
demonstrated remorse and lack of prior criminal contacts.
49
circumstances in aggravation and mitigation under Rules 4.421
and 4.423.19 (Pearson, supra, at p. 117.) “Relevant factors
enumerated in these rules must be considered by the sentencing
judge, and will be deemed to have been considered unless the
record affirmatively reflects otherwise.” (Rule 4.409.)
Nothing in the record affirmatively establishes the trial
court did not take into account all the relevant factors it was
required to consider when it sentenced Harrison. (Rule 4.409.)
The record shows the trial court understood it had discretion to
strike the firearm enhancement but declined to do so, citing to
the circumstances of the crime as factors in aggravation. From
its comments at the sentencing hearing, it is apparent the court
was persuaded “[t]he crime involved great violence . . . or other
acts disclosing a high degree of cruelty, viciousness, or
callousness,” that the “defendant was armed with or used a
weapon at the time of the commission of the crime,” and that the
“victim was particularly vulnerable.” (Rule 4.421(a)(1)-(3).)
The record also shows the trial court was aware it could
rely on mitigating circumstances in connection with its
sentencing discretion, as it cited to Frison’s remorse and lack of
previous criminal contacts when it imposed a lesser included
firearm enhancement as to Frison. Harrison’s mother also
brought to light several mitigating factors, including that
Harrison was just 21 years old at the time of the shooting, had
three children and had “not been in any type of situation of this
19 All further rule references are to the California Rules of
Court.
50
nature either.”20 On this record, the trial understood its
discretion and did not abuse it in declining to strike the firearm
enhancement.
We reject Harrison’s separate contention the trial court
abused its discretion to sentence him without a probation report.
As an initial matter, Harrison did not object to the lack of a
probation report prior to sentencing and thus has failed to
preserve this issue on appeal. (People v. Goldstein (1990)
223 Cal.App.3d 465, 472; People v. Llamas (1998) 67 Cal.App.4th
35, 38-39.) In any event, Harrison has failed to demonstrate the
omission, if it was erroneous, was prejudicial; he does not identify
what information a probation report would have provided that
was not already available to the trial court (e.g., his youth) and
that would have been reasonably likely to persuade the trial
court to impose a more favorable sentence. (People v. Dobbins
(2005) 127 Cal.App.4th 176, 182 [review of failure to obtain
probation report governed by Watson harmless error standard].)
c. Analysis of Ineffective Assistance of Counsel Claim
On this record, we reject Harrison’s claim that he received
ineffective assistance of counsel at sentencing. People v.
Sepulveda (2020) 47 Cal.App.5th 291, 301 (Sepulveda) presents
substantially identical facts and persuasive authority. There, the
trial court had discretion to strike two 25-year-to-life firearm
enhancements. (Id. at pp. 301–302.) The trial court declined to
do so and ordered both enhancements to run consecutively,
increasing the defendant’s sentence from 40 years to life to 90
20 It is unclear whether his mother meant he had no prior
criminal record. The information did not charge Harrison with
any prior strikes and no probation report had been prepared at
the time of sentencing.
51
years to life. As here, the sentencing hearing had previously
been delayed for more than a year in order for counsel to
assemble the relevant Franklin information. Yet, no significant
mitigating information was presented at the sentencing hearing.
Nor did counsel request another continuance of the sentencing
hearing. (Ibid.) Instead, trial counsel stipulated to submit the
Franklin information after sentencing, in written form, and
without live testimony, cross-examination, or the defendant’s
presence. (Id. at p. 300.)
The Sepulveda court rejected the defendant’s ineffective
assistance of counsel argument, reasoning the claim was more
appropriately made in a petition for habeas corpus because the
record on direct appeal did not explain why counsel “chose to
proceed in this fashion.” (Sepulveda, supra, 47 Cal.App.5th at
p. 302.) Because the record was silent, it fell to the defendant to
show counsel lacked any rational tactical purpose for his
decisions. The court found it “at least plausible” that defense
counsel recognized “the eventual youth offender parole hearing
would occur during his 25th year of incarceration whether his
aggregate indeterminate sentence was 40 years to life or 90 years
to life, and believed under those circumstances [the defendant]
would benefit more by an agreement with the prosecution to have
the Franklin memorandum presented without contemporaneous
challenge or contradiction than by introducing that material at
the sentencing hearing in the remote chance the trial court would
exercise its discretion to strike the firearm enhancements.”
(Ibid.)
Harrison advances the same ineffective assistance of
counsel argument as the defendant in Sepulveda did. It fails for
the same reasons. Here the record is silent as to why trial
52
counsel failed to ask for leniency or present any mitigating
factors, including Franklin documents. Harrison concludes
counsel could have had “no rational tactical purpose” for these
decisions. That misses the point – the record is silent on what
additional mitigating evidence there might have been. This
makes it impossible for us to find any ineffective assistance of
counsel prejudiced Harrison.
d. Analysis of Franklin Hearing Claim
Harrison relies on Franklin to argue (1) fundamental due
process requires Franklin documents be provided at the
sentencing hearing and (2) remand is necessary to hold an
overdue Franklin hearing. We reject both arguments.
At the time of the shooting, Harrison was just a few months
shy of his 22nd birthday. As such, he will be entitled to a youth
offender parole hearing in his 25th year of incarceration, despite
his sentence of 50 years to life. (See § 3051, subd. (b)(3); In re
Cook (2019) 7 Cal.5th 439, 449.) Sections 3051 and 4801
“ ‘establish a parole eligibility mechanism that provides a person
serving a sentence for crimes that he or she committed as a
juvenile the opportunity to obtain release’ upon a showing of
maturation and rehabilitation.” (In re Cook, supra, 7 Cal.5th at
p. 449; § 4801, subd. (c).)
A youth offender is entitled to “place on the record any
documents, evaluations, or testimony (subject to cross-
examination) that may be relevant at his eventual youth offender
parole hearing, and the prosecution likewise may put on the
record any evidence that demonstrates the juvenile offender’s
culpability or cognitive maturity, or otherwise bears on the
influence of youth-related factors. The goal of any such
proceeding is to provide an opportunity for the parties to make an
53
accurate record of the juvenile offender’s characteristics and
circumstances at the time of the offense so that the [Parole]
Board, years later, may properly discharge its obligation to ‘give
great weight to’ youth-related factors (§ 4801, subd. (c)) in
determining whether the offender is ‘fit to rejoin society’ despite
having committed a serious crime ‘while he [or she] was a child in
the eyes of the law.’ ” (Franklin, supra, 63 Cal.4th at p. 284.)
Under Franklin, preservation of this information “is typically a
task more easily done at or near the time of the juvenile's offense”
not decades later. (Ibid.)
We reject Harrison’s contention that Franklin documents
must be submitted prior to sentencing. In Sepulveda, supra,
47 Cal.App.5th at page 301, the court explained, “The purpose of
providing an opportunity to present youth-related factors
mitigating culpability is not to influence the trial court’s
discretionary sentencing decisions but to preserve information
relevant to the defendant’s eventual youth offender parole
hearing.” (Id. at p. 300.) The appellate court held that Franklin
information was not required to be submitted before or at
sentencing and its submission afterwards did not violate the
defendant’s constitutional rights. (Id. at pp. 300–301.)
On this record, we also reject Harrison’s second claim –
that remand is necessary for an overdue Franklin hearing; in his
reply brief, Harrison asserts no Franklin documents have been
submitted. The record shows the court provided Harrison with
adequate opportunity to make a record of mitigating youth-
related evidence. Yet, his trial counsel failed to do so. To the
extent Harrison contends he received ineffective assistance of
counsel, the matter is more appropriately addressed in a habeas
54
corpus proceeding. (People v. Henderson (2022) 78 Cal.App.5th
530, 567; Sepulveda, supra, 47 Cal.App.5th at p. 302.)
As a final observation, the Supreme Court has held that a
juvenile offender whose conviction and sentence are final may file
a motion under section 1203.01 for the purpose of making a
record of mitigating youth-related evidence under Franklin. (In
re Cook, supra, 7 Cal.5th at pp. 446–447.) Harrison may yet file
such a motion when his conviction and sentence are final.
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
I CONCUR:
KIM, J.
55
The People v. Davion Harrison et al.
B302288, B303783
BAKER, J., Concurring
I agree the criminal judgments should be affirmed. My
agreement with the majority’s reasons for affirming as to
defendant and appellant Enoch Frison (defendant Frison) is
without reservation. As to defendant and appellant Davion
Harrison (defendant Harrison), however, more needs to be said.
The police investigators in this case set up Perkins
operations against defendants in the hope of obtaining recorded
incriminating statements that could be used against them at
trial. The tactic succeeded spectacularly against defendant
Frison: he made many statements incriminating himself in the
murder of victim Anthony Lawson.1 The undercover law
enforcement officer then went further and elicited yet another
incriminating statement—but not a statement incriminating
defendant Frison himself. (There was no need at that point
because defendant Frison had already thoroughly done that.)
Instead, at the very end of their recorded interaction, the officer
prompted defendant Frison to incriminate defendant Harrison by
asking defendant Frison who his “crimeys” or crime partners
were. Defendant Frison identified “Davion” (defendant
Harrison’s first name).
1 As the majority’s opinion explains, the tactic was much less
successful when employed against defendant Harrison.
The majority merely assumes that permitting the jury to
hear defendant Frison’s unimpeachable recorded statement
incriminating defendant Harrison was error. There is no need for
assumptions, however. Under the circumstances, defendant
Frison’s identification of another “crimey” or crime partner
involved in the killing could have only served to minimize or
mitigate defendant Frison’s role, and it certainly was not a
statement that did anything to further disserve defendant
Frison’s penal interest. (Evid. Code, § 1230; People v. Grimes
(2016) 1 Cal.5th 698, 714-715 [statements must be parsed out
individually and examined in context to see “‘whether as a matter
of common sense the portion at issue was against interest’”]; see
also People v. Lawley (2002) 27 Cal.4th 102, 154, 155, fn. 21.) In
my view, we should not shy away from calling this error an error,
lest trial courts come away with the impression that admitting
this particular sort of evidence procured in a Perkins operation
involving one defendant for use against a co-defendant is fair
game in a criminal trial.
I agree, however, with the majority that the error was
harmless, when considered individually or cumulatively, on this
record (in light of, among other things, the video footage admitted
in evidence that shows a man identified as defendant Harrison
firing a gun outside the 7-Eleven). I therefore concur in affirming
the criminal judgments against both defendants.
BAKER, J.
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