People v. Prince CA2/7

Filed 1/20/21 P. v. Prince CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B297599
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074878)
v.
AUBREY LAMONT PRINCE
et al.,
Defendants and
Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Denise McLaughlin-Bennett, Judge.
Judgment as to Anderson is affirmed. Convictions as to Prince
are affirmed, and the matter is remanded for resentencing.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant Aubrey Lamont Prince.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant Mykael Thomas Anderson.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Stephanie A. Miyoshi and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________________________
A jury found Aubrey Lamont Prince and Mykael Thomas
Anderson not guilty of attempted murder but guilty of the lesser
included offense of attempted voluntary manslaughter, as well as
felony possession of firearms and ammunition. On appeal they
raise a number of challenges to their convictions, including
insufficient evidence, evidentiary error, improper instructions
and prosecutorial misconduct and also argue the trial court
committed sentencing error. We affirm the convictions of both
men and the sentence as to Anderson. As to Prince only, we
remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Second Amended Information
On January 24, 2019 Prince and Anderson were each
charged in a second amended information with one count of
attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 (count 1)
with special firearm-use allegations pursuant to
section 12022.53. In addition, Prince was charged with
two counts of carrying a loaded firearm while an active
participant in a criminal street gang (§ 25850, subds. (a), (c)(3))
(counts 2 and 6) and two counts of unlawfully possessing
ammunition (§ 30305, subd. (a)(1)) (counts 3 and 7). Anderson
1 Statutory references are to this code unless otherwise
stated.
2
was additionally charged with one count of carrying a loaded
firearm while an active member in a criminal street gang
(§ 25850, subds. (a), (c)(3)) (count 4) and one count of unlawfully
possessing ammunition (§ 30305, subd. (a)(1)) (count 5). It was
further alleged each offense had been committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)(A) and (C)).
2. The Evidence at Trial
a. The shooting
On the night of August 30, 2015 Prince and Anderson went
to a liquor store near Anderson’s house to purchase snacks for
Anderson’s wife. As they left the store, they saw Darcel Jackson
pacing in the middle of the street near the store’s entrance.
Prince and Anderson initially walked past Jackson, but after a
few moments they turned around to face him. Following a brief
exchange, Prince and Anderson drew weapons and shot at
Jackson. Jackson was hit multiple times, including in his back
and buttocks.
A bystander called police to report the shooting and stated
he had heard 12 gunshots and seen a black car with red racing
stripes leave the scene shortly after the shooting.
The liquor store’s video surveillance system recorded the
incident from various angles. Throughout the trial the jury was
shown footage depicting the shooting and the moments leading
up to it.
3
b. Jackson’s testimony2
Jackson’s account of the incident varied over the course of
the police investigation and trial. During an interview with
police in February 2018, Jackson said he did not remember
exactly what had happened the night of the shooting. He thought
Prince and Anderson had initiated the interaction by speaking to
him and he had been shot while running away. He recalled
Prince and Anderson were approximately two car-lengths away
from him when he was shot. In an October 2018 police interview
Jackson again said Prince and Anderson spoke to him first by
asking where he was from. Jackson told them he was a member
of E-Dubs, which is a Bloods-affiliated criminal street gang.
During his preliminary hearing testimony in
November 2018, Jackson admitted he was at the liquor store to
meet his marijuana dealer. He initially stated he did not recall
who initiated the encounter with Prince and Anderson prior to
the shooting. Upon further questioning, however, Jackson again
said Prince and Anderson spoke first, asking him where he was
from. He replied he was a member of E-Dubs. Later in his
testimony he said it was possible he had accosted Prince and
Anderson and could not recall whether he had pretended to have
a gun by reaching under his shirt in an effort to make them back
away.
2 At the beginning of trial Jackson could not be located and
was ruled unavailable pursuant to Evidence Code section 240.
Accordingly, audio recordings of two police interviews with
Jackson were played, and his preliminary hearing testimony was
read aloud for the jury. Jackson was subsequently located and
testified in person.
4
When he testified at trial, Jackson initially stated he was
unsure who had spoken first prior to the shooting; but he later
admitted he may have initiated the encounter by saying, “What
have you got?” and telling Prince and Anderson to give him
everything they had. Jackson also testified he could not be
certain, but he thought he was at the gas station that night to
buy drugs.
As a result of the shooting Jackson wore a colostomy bag
and had multiple scars on his wrist, stomach and neck.3
c. The People’s firearm expert
Phil Teramoto, a senior criminalist in the Los Angeles
County Sheriff’s Department’s firearms identification section,
testified regarding the type of weapon used to shoot Jackson. He
stated seven shell casings had been found at the scene and they
had all been fired from the same semiautomatic handgun. They
could not have been fired from a revolver because revolvers do
not eject shell casings.
In reviewing the video footage Teramoto observed the
person in white, later identified as Prince, could be seen pointing
a gun with a muzzle flash coming out of it. Teramoto explained
the muzzle flash indicated Prince was firing the gun. Teramoto
only saw one muzzle flash from Prince’s gun in the video; but he
admitted that, given the video quality and the number of frames
3 It is unclear from Jackson’s various statements whether he
was shot twice—once in the buttocks with the bullet travelling to
his stomach and once in the back with the bullet travelling to his
lungs, neck and then wrist—or whether he was shot
three times—once in the buttocks, once in the back and a
separate shot into his wrist.
5
per second, it was possible two muzzle flashes had occurred. In
Teramoto’s opinion it was unlikely Prince could have fired
seven times during the approximately two seconds he had his
arm raised. Teramoto could not determine if Prince had been
holding a revolver or a semiautomatic handgun.
Teramoto also stated he could see Anderson in the video
holding something in his extended hand, but there were no
muzzle flashes coming from Anderson’s outstretched arm.
Teramoto could not determine what object Anderson had been
holding.
d. The arrests of Prince and Anderson
Prince was arrested on August 11, 2016 after police
executed a search warrant at his home. During the search of his
home police found clothing associated with Whitsett Avenue
Gangster Crips and clothing with Prince’s gang moniker printed
on it. Police also searched Prince’s girlfriend’s car, which was the
same make and model as the car seen leaving the scene of the
shooting. The car did not have red racing stripes at the time of
Prince’s arrest, but his girlfriend testified it had red racing
stripes at some point. In the car police found three loaded
handguns and additional ammunition.
Anderson was arrested one week later, on August 17, 2016.
When police searched Anderson’s home at the time of his arrest,
they found a box of ammunition in a safe in the closet. Police also
found clothing associated with the Whitsett Avenue Gangster
Crips and clothing with Anderson’s gang moniker printed on it.
During an interview with police the day after his arrest,
Anderson told police that on the night of the shooting he had
been holding a taser. Later in the interview he said it had been a
BB gun. Audio recordings were played to the jury of telephone
6
calls Anderson made from jail a few days after his arrest. In
one call Anderson told his wife that, in the surveillance video the
police had showed him, he could see the other person’s gun firing
but, “They don’t show my shit. . . . On my shit, they don’t show
me, like they show me lifting, but no sparks.” When his wife
asked what he was lifting, Anderson replied, “The BB gun.”
e. The gang evidence
Prince stipulated he had been an active member of the
Whitsett Avenue Gangster Crips on August 30, 2015.
Sergeant Matthew Harer of the Los Angeles Police
Department, the People’s gang expert, testified Prince and
Anderson had tattoos and wore clothing identifying them as
members of the Whitsett Avenue Gangster Crips. They also
associated with known members of the gang and spent time at a
park known to be frequented by gang members. Based on this
and Anderson’s self-identification as a Whitsett Avenue member
to three police officers in 2010 and 2014, Harer testified
Anderson was an active member of the gang in August 2015.
Given a hypothetical similar to the shooting in this case,
Sergeant Harer opined the shooting was committed for the
benefit of, and in association with, a criminal street gang. He
explained gangs thrive on violence; by showing the gang was
willing to shoot a rival, it gains power and influence. Harer also
stated the shooting would benefit the gang by eliminating a rival
and helping with recruitment.
f. Witnesses for Prince
Prince presented testimony from two expert witnesses:
David Kim on firearm forensics, and Thomas Guzman-Sanchez
7
on video recording technology. Prince also testified in his own
defense.
Kim, a retired forensics firearms examiner for the
Los Angeles County Sheriff’s Department, opined that the shell
casings found at the scene had not been fired by Prince. Based on
the size and brightness of the muzzle flash in the video, Kim was
90 percent sure Prince had fired a revolver, which would not have
ejected shell casings, and not a semiautomatic handgun, which
would have ejected shell casings. Kim also stated, even if Prince
had been firing a semiautomatic handgun, he could not have fired
seven bullets in the few seconds the video showed him shooting.
In addition, the shell casings would have landed in a different
area than they had been found. In rebuttal to this testimony, the
prosecution presented the testimony of Robert Keil, a supervising
criminalist with the Los Angeles County Sheriff’s Department’s
firearms identification section. Keil agreed with Kim that
revolvers tended to have more muzzle flash than semiautomatic
handguns. However he did not believe it was possible to
determine from the video which type of weapon Prince had fired.
Guzman-Sanchez, who had 30 years of experience in the
television, film and recording industry, testified regarding the
surveillance video from the night of the shooting. Guzman-
Sanchez explained there were lighter pixels in the images near
Anderson’s extended hand, which could be the result of smoke
coming out of the object Anderson was holding. On cross-
examination Guzman-Sanchez stated the video footage showing
Prince and Anderson during the shooting was recorded at a speed
of one frame per second. Because of that, he explained, if
something was moving very quickly, the camera might not record
each movement. Specifically, he conceded, there could have been
8
additional muzzle flashes from Prince’s gun that were not
captured on the video recording.
Prince testified he had been a member of the
Whitsett Avenue Gangster Crips for more than 10 years and was
an active member of the gang in 2015 and 2016. He admitted he
had been carrying a loaded revolver the night of the shooting. He
explained he always carried a gun because it made him feel safe.
He would rather be arrested for carrying a gun then risk being
attacked when he did not have a gun.
Prince testified he drove to the liquor store with Anderson
on August 30, 2015 in his girlfriend’s car—a black sedan with red
racing stripes. After making a purchase in the store, Prince and
Anderson were walking to the car when Prince saw Jackson
pacing back and forth in the middle of the street. As Prince and
Anderson continued walking past Jackson, Prince heard Jackson
say, “Hey, whatcha got on you?” or “Hey whatcha you got?”
Prince was initially confused and did not know whether Jackson
was trying to purchase drugs or trying to rob him. Prince turned
to face Jackson and asked him what he had said. According to
Prince, Jackson aggressively responded, “Bitch ass, you know
what I mean. Whatcha you got on you?” At that point Prince
became “100 percent certain” Jackson was trying to rob him.
Prince testified, “I was definitely afraid, given the circumstances
and his demeanor. He kept looking over his shoulder like
before—before he asked me he kept looking over his shoulder,
then he reached under his shirt and I was—I was—I was—I was
certain I was going to be shot.” Panicked, Prince grabbed his
gun from his pocket and fired two shots at Jackson. Prince
testified he was not trying to kill Jackson but simply wanted to
defend himself. After firing, Prince ran back to the car.
9
Anderson arrived at the car a couple seconds later, and they
drove away.
Prince did not know whether Anderson fired a gun at
Jackson, but Prince did hear gunfire after he had stopped
shooting. Anderson was not holding a gun when he got into the
car. Prince testified Anderson was an active gang member in
August 2015.
Prince admitted the guns and ammunition recovered from
his girlfriend’s car in August 2016 belonged to him.
g. Witnesses for Anderson
Anderson’s mother testified regarding the ammunition
found at the time of Anderson’s arrest. She said Anderson had
been living with her when he was arrested, and the ammunition
the police found belonged to her ex-husband who had lived in the
house in 2010.
Anderson also presented testimony from Alex Alonso, a
college professor who had been studying criminal street gangs
and interviewing gang members for 30 years. Alonso explained
gang members did not always act in association with, or for the
benefit of, a criminal street gang; they sometimes acted in their
own self-interest. After being given a hypothetical similar to the
shooting in this case, Alonso stated it seemed as if the shooters
acted spontaneously and not for the benefit of their gang.
However, on cross-examination, when asked whether it would
change his opinion if the victim had initiated the conversation by
asking where the shooters were from, Alonso said it may be more
likely the shooting was for the benefit of the gang.
10
3. The Verdict
The jury found Prince and Anderson not guilty of
attempted murder but guilty of the lesser included offense of
attempted voluntary manslaughter. In connection with that
offense the jury found true the special allegations Prince and
Anderson had caused great bodily injury to Jackson and not true
that they had committed the offense for the benefit of a criminal
street gang.
The jury also found Prince guilty of carrying a loaded
firearm on the date of the shooting (count 2) and the date of his
arrest (count 6) and guilty of unlawful possession of ammunition
on the date of the shooting (count 3) and the date of his arrest
(count 7). In connection with counts 2 and 6 the jury found true
the special allegations Prince was an active participant in a
criminal street gang at the time of the offenses. In connection
with counts 3 and 7 the jury found true the special allegations
Prince was prohibited from owning or possessing a firearm due to
a prior felony conviction.4 As to counts 2, 3, 6 and 7 the jury
found true the special allegations Prince committed the offenses
for the benefit of, or in association with, a criminal street gang.5
Anderson was found guilty of carrying a loaded firearm on
the date of the shooting (count 4) and of unlawful possession of
ammunition at the time of his arrest (count 5). In connection
4 During trial Prince stipulated he had been convicted in
2013 of felony carrying of a concealed weapon (§ 25400,
subd. (a)(2)).
5 During closing argument Prince’s counsel conceded Prince
was guilty of counts 2, 3 and 7 but maintained the offenses were
not committed for the benefit of a criminal street gang.
11
with count 4 the jury found true the special allegation Anderson
was an active participant in a criminal street gang. As to count 5
the jury found true the special allegation Anderson was
prohibited from owning or possessing a firearm due to a prior
felony conviction. In connection with count 4 the jury found
Anderson committed the offense for the benefit of a criminal
street gang but found the gang allegation not true as to count 5.
4. Sentencing
The trial court sentenced Prince to an aggregate state
prison term of 13 years two months: the upper term of five years
six months for count 1, plus three years for the great bodily
injury enhancement; a consecutive term of eight months (one-
third the middle term) for count 2, plus one year for the gang
enhancement; a consecutive term of eight months (one-third the
middle term) for count 3, a consecutive term of eight months (one-
third the middle term) for count 6, plus one year for the gang
enhancement; and a consecutive term of eight months (one-third
the middle term) for count 7.
Anderson was sentenced to an aggregate state prison term
of 10 years 10 months: the upper term of five years six months for
count 1, plus three years for the great bodily injury enhancement;
a consecutive term of eight months (one-third the middle term)
for count 4, plus one year for the gang enhancement; and a
consecutive term of eight months (one-third the middle term) for
count 5.
12
DISCUSSION6
1. Substantial Evidence Supports the Convictions
a. Standard of review
In considering a claim of insufficient evidence in a criminal
case, “we review the whole record to determine whether any
rational trier of fact could have found the essential elements of
the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.] In
applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify
the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor
6 Pursuant to California Rules of Court, rule 8.200(a)(5),
Prince and Anderson have joined in each other’s arguments to the
extent those arguments may benefit them. We have reviewed
each of the issues in light of that joinder but have found no
instance in which our resolution of the issue requires a different
outcome for the other defendant. (See generally People v. Nero
(2010) 181 Cal.App.4th 504, 510, fn. 11 [“[j]oinder may be broadly
permitted [citation], but each appellant has the burden of
demonstrating error and prejudice”].)
13
evidentiary conflicts; we look for substantial evidence.
[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is
unwarranted unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support”’ the
jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357;
accord, People v. Dalton (2019) 7 Cal.5th 166, 243-244; People v.
Penunuri (2018) 5 Cal.5th 126, 142.) “‘Where the circumstances
reasonably justify the trier of fact’s findings, a reviewing court’s
conclusion the circumstances might also reasonably be reconciled
with a contrary finding does not warrant the judgment’s
reversal.’” (People v. Clark (2016) 63 Cal.4th 522, 626.)
b. Substantial evidence supports Anderson’s conviction
for attempted voluntary manslaughter
A jury may convict a defendant of voluntary manslaughter
by finding the defendant killed the victim with either intent to
kill or conscious disregard for human life. (People v. Lasko (2000)
23 Cal.4th 101, 104; People v. Blakeley (2000) 23 Cal.4th 82, 91.)
A conviction for attempted voluntary manslaughter, however,
requires proof the defendant had the specific intent to kill the
victim. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549-
1550 [“If the crime of attempted murder requires a specific intent
to bring about a desired result (the killing of a human being),
then it appears to us that the crime of attempted voluntary
manslaughter must also require a specific intent to bring about
that same desired result (the killing of a human being)”]; People
v. Gutierrez (2003) 112 Cal.App.4th 704, 710 [“attempted
voluntary manslaughter cannot be premised on the theory the
defendant acted with conscious disregard for life, because it
would be based on the ‘internally contradictory premise’ that one
can intend to commit a reckless killing”].) “Mental state and
14
intent are rarely susceptible of direct proof and must therefore be
proven circumstantially.” (People v. Thomas (2011) 52 Cal.4th
336, 355.) “‘An appellate court must accept logical inferences
that the jury might have drawn from the circumstantial
evidence.’” (People v. Elliot (2005) 37 Cal.4th 453, 466.)
The prosecutor sought to prove Anderson was guilty of
attempted murder by establishing Anderson fired a gun at
Jackson.7 In the alternative, if the jury believed Anderson had
not fired a gun that night, the prosecutor argued Anderson was
guilty because he aided and abetted Prince in the attempted
murder. Anderson contends there was not substantial evidence
to support his conviction under either theory. Specifically as to
whether there was evidence he was guilty as a direct perpetrator,
Anderson argues there was no “independent evidence to establish
an intent to kill” because “the evidence was unclear on which
defendant fired the gun whose shots came close to or hit”
Jackson.
Reviewing the record in the light most favorable to the
prosecution, ample evidence supports a finding Anderson fired a
gun at Jackson with the intent to kill him. The evidence
established Prince and Anderson were involved in an altercation
with Jackson that resulted in Jackson being shot multiple times.
Anderson admitted in police interviews and on telephone calls
7 Attempted voluntary manslaughter is a lesser included
offense of attempted murder “whenever the evidence is such that
a jury could reasonably conclude that the defendant [attempted
to kill] the victim in the unreasonable but good faith belief in
having to act in self-defense.” (People v. Barton (1995) 12 Cal.4th
186, 201; see discussion in section 2(b).)
15
from jail that he pointed a weapon at Jackson, although he
denied the weapon was a firearm. The seven shell casings found
at the scene had all been fired from the same semiautomatic
handgun. Prince testified he had fired two shots at Jackson from
a revolver, which the testifying firearms experts agreed would
not have expended the recovered shell casings. If the jury
believed Prince’s testimony, it was a reasonable inference the
expended shell casings must have come from Anderson’s weapon.
Even if the jury did not believe Prince and concluded he had fired
the gun that ejected the shell casings, there was testimony from
Prince’s video expert that there appeared to be smoke coming
from the weapon in Anderson’s outstretched hand. There was
also testimony from two firearms experts stating it was highly
unlikely Prince could have fired seven shots in the time shown in
the surveillance video. In addition, the jury repeatedly viewed
the surveillance video of the shooting, from which they could
evaluate Anderson’s actions. Based on this evidence, a
reasonable trier of fact could find Anderson fired a gun at
Jackson.
Anderson alternatively argues, even if he had fired a gun,
there was no evidence a bullet he fired “came close to or hit”
Jackson and there was no independent evidence to establish an
intent to kill. This argument is without merit. “‘“[T]he act of
firing toward a victim at a close, but not point blank, range ‘in a
manner that could have inflicted a mortal wound had the bullet
been on target is sufficient to support an inference of intent to
kill.’”’” (People v. Perez (2010) 50 Cal.4th 222, 230 [intent to kill
could be inferred where defendant fired a single shot at a group
of eight people from a distance of 60 feet]; accord, People v.
Villegas (2001) 92 Cal.App.4th 1217, 1225 [firing at least six
16
shots from distance of approximately 25 feet indicated “clear
intent to kill”].) Anderson’s decision to flee the scene while
Jackson was still alive “does not compel the conclusion that he
lacked the animus to kill in the first instance.” (People v. Lashley
(1991) 1 Cal.App.4th 938, 945.) “Nor does the fact that the victim
may have escaped death because of the shooter’s poor
marksmanship necessarily establish a less culpable state of
mind.” (Ibid.; accord, People v. Cardenas (2020) 53 Cal.App.5th
102, 120-121 [“[t]hat the bullets struck Chris and Juan in their
feet and ankles similarly does not show that there was
insufficient evidence of specific intent to kill them. . . . [A]
reasonable inference that could be drawn from that evidence is
that Cardenas intended to shoot to kill both Chris and Juan but
had poor aim”].)
c. There was substantial evidence to support a finding
Anderson personally inflicted great bodily injury
Section 12022.7, subdivision (a), provides a three-year
sentence enhancement for “[a]ny person who personally inflicts
great bodily injury on any person other than an accomplice in the
commission of a felony or attempted felony . . . .” “Great bodily
injury” is statutorily defined as “a significant or substantial
physical injury.” (§ 12022.7, subd. (f); see CALCRIM No. 3160
[“Great bodily injury means significant or substantial physical
injury. It is an injury that is greater than minor or moderate
harm”].) “A defendant ‘personally inflicts’ great bodily injury if
he directly causes the injury—that is, if the defendant ‘himself’
‘actually inflicts the injury’ by ‘directly perform[ing] the act that
causes the physical injury.’” (People v. Ollo (2019) 42 Cal.App.5th
1152, 1156, review granted Mar. 18, 2020, S260130; accord,
People v. Cardenas (2015) 239 Cal.App.4th 220, 228 [“‘for the
17
[great bodily injury] enhancement to apply, the defendant must
be the direct, rather than the proximate, cause of the victim’s
injuries’”].)
Anderson argues there is insufficient evidence to support a
finding he personally inflicted great bodily injury on Jackson
because there was no evidence he actually fired a gun. However,
as discussed, ample evidence supported the jury’s finding
Anderson fired a gun at Jackson and, thus, that he personally
inflicted great bodily injury. (See In re Sergio R. (1991)
228 Cal.App.3d 588, 601-602 [“where, as here, more than one
assailant discharges a firearm into a group of people and ‘it is not
possible to determine which assailant inflicted which injuries, the
defendant may be punished with a great bodily injury
enhancement if his conduct was of a nature that it could have
caused the great bodily injury suffered’”]; People v. Corona (1989)
213 Cal.App.3d 589, 594; see also People v. Modiri (2006)
39 Cal.4th 481, 498 [“a personal-infliction finding could
nonetheless be made if defendant personally applied force to the
victim, and such force was sufficient to produce grievous bodily
harm either alone or in concert with others”].)
d. There was substantial evidence to support a finding
Prince was an active participant in a criminal street
gang on August 11, 2016 for purposes of section 25850,
subdivision (c)(3)
Section 25850, subdivision (a), prohibits the carrying of a
loaded firearm in public either on one’s person or in a vehicle.
The offense is generally a misdemeanor but is elevated to a felony
if the defendant “is an active participant in a criminal street
gang, as defined in subdivision (a) of Section 186.22.” (§ 25850,
subd. (c)(3).) Conviction of a felony violation of section 25850
18
based on active participation in a criminal street gang “require[s]
proof of each element ‘of the offense described in
section 186.22(a). Those elements are “actively participat[ing] in
any criminal street gang with knowledge that its members
engage in or have engaged in a pattern of criminal gang activity”
and “willfully promot[ing], further[ing], or assist[ing] in any
felonious criminal conduct by members of that gang.”’” (People v.
Infante (2014) 58 Cal.4th 688, 692; accord, People v. Lamas
(2007) 42 Cal.4th 516, 519.)
In establishing the defendant promoted, furthered or
assisted in felonious criminal conduct by members of the gang,
the prosecution must present evidence of “felonious criminal
conduct that is distinct from [the] otherwise misdemeanor
conduct of carrying a loaded firearm in public . . . .” (People v.
Lamas, supra, 42 Cal.4th at p. 520.) In other words, the charged
act of carrying a loaded firearm cannot be the predicate act upon
which the finding of gang membership is based. (See People v.
Infante, supra, 58 Cal.4th at pp. 693-694 [section 25850,
subdivision (c), “requires proof that the charged gang participant
willfully promoted, furthered, or assisted felonious conduct by
fellow gang members before one may consider whether that
provision applies to elevate to a felony what would otherwise be
the misdemeanor act of unlawfully carrying a loaded firearm in
public”].) However, the alleged felonious conduct need not have
occurred in conjunction with or at the same time as the charged
firearm offense. (See People v. Schoppe-Rico (2006)
140 Cal.App.4th 1370, 1381 [“the Legislature intended the street
gang firearms statutes to make it possible to convict active gang
members of a felony whenever they are found in possession of a
loaded or concealed firearm, even when the prosecution cannot
19
establish any temporal or causal connection between the firearm
possession and gang activity”]; see also People v. Robles (2000)
23 Cal.4th 1106, 1114 [“it is entirely plausible that the
Legislature may have enacted section 12031(a)(2)(C) [now
section 25850, subd. (c)(3)] to cover a situation not subject to
felony punishment under section 186.22(a): when the person
carrying the loaded firearm at some other time committed a
violation of section 186.22(a)”].)
Prince argues insufficient evidence supported the finding
he was an active participant in a criminal street gang at the time
of his arrest on August 11, 2016 and, therefore, he could not be
convicted of a felony violation of section 25850 on count 6.8
Prince does not argue he was not a member of a criminal street
gang on August 11, 2016, nor does he argue he did not have
knowledge members of the gang engaged in a pattern of criminal
activity.9 He argues only that there was insufficient evidence he
willfully promoted, furthered or assisted in felonious criminal
activity because “there is no evidence that appellant acted other
than alone when guns and ammunition he owned were found in
the [car] parked outside of his apartment on August 11, 2016.”
8 Prince does not challenge the jury’s finding he was an
active member of a criminal street gang at the time of the
shooting for purposes of section 25850 (count 2), nor does he
challenge the findings he acted for the benefit of a criminal street
gang on counts 2, 3, 6 and 7.
9 Prince stipulated at trial that he was an active member of a
criminal street gang on August 30, 2015. When asked during
cross-examination whether he was “still an active member of the
gang” on August 11, 2016, Prince responded, “Yes, sir.”
20
Contrary to Prince’s argument, there is no requirement the
defendant act in concert with other gang members at the time of
his or her arrest for carrying a loaded firearm in order for the
offense to be elevated to a felony. Prince appears to be relying on
a misapprehension of the Supreme Court’s statement in People v.
Rodriguez (2012) 55 Cal.4th 1125, in which the Court held a
conviction for the substantive offense of participation in a
criminal street gang (§ 186.22, subd. (a)) “requires that felonious
criminal conduct be committed by at least two gang members.”
(Rodriguez, at p. 1148.) Here, however, Prince was not convicted
of the substantive offense of participation in a criminal street
gang. As discussed, elevation of a section 25850 violation based
on gang membership requires the elements of section 186.22,
subdivision (a), be satisfied by conduct that took place separately
from, and not necessarily at the same time as, the firearm
offense. (See People v. Infante, supra, 58 Cal.4th at pp. 693-694;
People v. Schoppe-Rico, supra, 140 Cal.App.4th at p. 1381.)
Accordingly, whether Prince acted alone when carrying the
loaded firearms is of no moment. There was sufficient evidence
Prince had assisted in felonious criminal conduct by members of
the gang prior to August 2016, including the jury’s finding Prince
was an active gang member pursuant to section 186.22,
subdivision (a), in August 2015 for purposes of count 2, a finding
Prince does not challenge on appeal, and the finding Prince and
another gang member (Anderson) had committed attempted
voluntary manslaughter on August 30, 2015, as charged in
count 1.
21
2. The Trial Court Did Not Commit Instructional Error
a. Standard of review
A trial court in a criminal case has a duty to instruct on
general principles of law applicable to the case (People v. Young
(2005) 34 Cal.4th 1149, 1200), that is, “‘“‘those principles closely
and openly connected with the facts before the court, and which
are necessary for the jury’s understanding of the case.’”’” (People
v. Valdez (2004) 32 Cal.4th 73, 115.) This obligation includes the
sua sponte duty to instruct the jury on the definition of the
substantive offenses charged and the elements of any applicable
sentencing factors alleged. (See People v. Sengpadychith (2001)
26 Cal.4th 316, 327; People v. Robles, supra, 23 Cal.4th at
p. 1115; see also CALCRIM Nos. 2540-2546; see generally
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348,
147 L.Ed.2d 435] [“[o]ther than the fact of a prior conviction, any
fact that increases the penalty of a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”].) The court also must instruct the
jury on a lesser included offense if the evidence raises a question
as to whether the elements of the lesser-included offense are
present. (Valdez, at p. 115; People v. Breverman (1998)
19 Cal.4th 142, 154.) Likewise, a trial court must instruct on an
asserted defense, including self-defense, if there is sufficient
evidence from which a reasonable juror could find the defense
applicable. (People v. Koontz (2002) 27 Cal.4th 1041, 1046;
Breverman, at p. 154.) A court may, however, “‘properly refuse
an instruction offered by the defendant if it incorrectly states the
law, is argumentative, duplicative, or potentially confusing
[citation], or if it is not supported by substantial evidence.’”
(People v. Burney (2009) 47 Cal.4th 203, 246.)
22
We review defendants’ claims of instructional error
de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) “In
assessing a claim of instructional error, ‘we must view a
challenged portion “in the context of the instructions as a whole
and the trial record” to determine “‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction in
a way’ that violates the Constitution.”’” (People v. Jablonski
(2006) 37 Cal.4th 774, 831.) Failure to instruct the jury on an
element of an offense or sentencing factor “is reversible under
[Chapman v. California (1967) 386 U.S. 18, 24], unless it can be
shown ‘beyond a reasonable doubt’ that the error did not
contribute to the jury’s verdict.” (People v. Sengpadychith, supra,
26 Cal.4th at p. 326; accord, People v. Merritt (2017) 2 Cal.5th
819, 827.) In other words, the harmless error inquiry regarding
an element omitted from the jury instructions requires the
reviewing court to determine if it is clear beyond a reasonable
doubt a rational jury would have found the defendant guilty
absent the error. (Merritt, at p. 827; see People v. Gonzalez
(2012) 54 Cal.4th 643, 666 [“[w]e have exhaustively reviewed the
trial evidence to determine ‘whether the record contains evidence
that could rationally lead to a contrary finding with respect to the
omitted element’”]; People v. Mil (2012) 53 Cal.4th 400, 417
[“[o]ur task, then, is to determine ‘whether the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element’”].)
b. The trial court properly instructed on self-defense
Self-defense, when based on a reasonable belief that killing
is necessary to avert an imminent threat of death or great bodily
injury, is a complete justification for homicide; such a killing is
not a crime. (§ 197, subd. (3); People v. Elmore (2014) 59 Cal.4th
23121, 133-134.) When the defendant kills under an actual but
unreasonable belief in the necessity to use deadly force to defend
against imminent peril to life or great bodily injury, the conduct,
while not justifiable, reduces a homicide from murder to
voluntary manslaughter. (Elmore, at p. 134; see People v. Barton
(1995) 12 Cal.4th 186, 199.) Accordingly, “when a defendant is
charged with murder the trial court’s duty to instruct
sua sponte . . . on unreasonable [i.e., imperfect] self-defense is the
same as its duty to instruct on any other lesser included offense:
this duty arises whenever the evidence is such that a jury could
reasonably conclude that the defendant killed the victim in the
unreasonable but good faith belief in having to act in self-
defense.” (Barton, at p. 201.)
Prince and Anderson contend the trial court erred by
failing to instruct the jury on complete self-defense with
CALCRIM No. 505,10 and, absent that instruction, “the jury
could not have known that appellant[s] should be acquitted if the
10 CALCRIM No. 505 states: “The defendant is not guilty of
(murder/ [or] manslaughter/attempted murder/ [or] attempted
voluntary manslaughter) if (he/she) was justified in
(killing/attempting to kill) someone in (self-defense/ [or] defense
of another). The defendant acted in lawful (self-defense/ [or]
defense of another) if: [¶] 1. The defendant reasonably believed
that (he/she/ [or] someone else/ [or] ) was in imminent danger of being killed or suffering
great bodily injury [or was in imminent danger of being
(raped/maimed/robbed/ )]; [¶] 2. The defendant reasonably believed that the
immediate use of deadly force was necessary to defend against
that danger; [¶] AND [¶] 3. The defendant used no more force
than was reasonably necessary to defend against that danger.”
24
jury found that [they] acted in [complete] self-defense.”11 This
position ignores the trial court’s instruction with CALCRIM
No. 604 regarding imperfect self-defense, which included the
instruction that, “If you conclude the defendant acted in complete
self-defense, his action was lawful and you must find him not
guilty of any crime. The difference between complete self-defense
and imperfect self-defense depends on whether the defendant’s
belief in the need to use deadly force was reasonable.”12
11 Anderson’s opening brief on appeal included a statement
that the trial court erred in failing to instruct the jury with
CALCRIM No. 3471 (mutual combat/initial aggressor self-
defense). However, his opening brief does not contain argument
or support for this position. The issue therefore has been
forfeited. (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360(a); see
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277;
People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12.)
12 As given, CALCRIM No. 604 states, in part: “An attempted
killing that would otherwise be attempted murder is reduced to
attempted voluntary manslaughter if the defendant attempted to
kill a person because he acted in imperfect self-defense. [¶] If
you conclude the defendant acted in complete self-defense, his
action was lawful and you must find him not guilty of any crime.
The difference between complete self-defense and imperfect self-
defense depends on whether the defendant’s belief in the need to
use deadly force was reasonable. [¶] The defendant acted in
imperfect self-defense if: [¶] 1. The defendant took at least one
direct but ineffective step toward killing a person. [¶] 2. The
defendant intended to kill when he acted. [¶] 3. The defendant
believed that he was in imminent danger of being killed or
suffering great bodily injury. AND [¶] 4. The defendant believed
that the immediate use of deadly force was necessary to defend
25
In his reply brief Prince argues this language was
insufficient to instruct the jury on complete self-defense because
it gave “the jury no guidance on how to evaluate what is or is not
reasonable.” Prince maintains the language in CALCRIM
No. 604 on this point (“[i]n evaluating the defendant’s beliefs,
consider all the circumstances as they were known and appeared
to the defendant”) was not sufficient because it was not as
complete as the language of CALCRIM No. 505 (“[w]hen deciding
whether the defendant’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar
situation with similar knowledge would have believed”).
While CALCRIM No. 505 contains additional clarification
of complete self-defense, the unambiguous language in No. 604
adequately instructed the jury it must find Prince and Anderson
not guilty of attempted murder and attempted voluntary
manslaughter if their belief in the need to defend themselves
from imminent danger was reasonable. In addition, neither
Prince nor Anderson has asserted the self-defense instruction
given was incorrect or misleading. Because any additional
instruction would have been duplicative, there was no error in
the court’s failure to instruct with No. 505. (See People v. Moon
(2005) 37 Cal.4th 1, 32 [failure to give requested instruction not
error because “it was duplicative of the instructions the court
gave the jury”]; see also People v. Cordero (1989) 216 Cal.App.3d
275, 279 [failure to give instruction on imperfect self-defense not
error because other instructions explained there was no malice
against the danger. BUT [¶] 5. At least one of the defendant’s
beliefs was unreasonable.”
26
aforethought if defendant had honest but unreasonable belief in
necessity to defend himself].)
c. Any error in failing to instruct the jury on the
definition of “felonious criminal conduct” on count 6
was harmless
The court instructed the jury on count 6 (carrying a loaded
firearm as an active gang member on August 11, 2016) with the
elements of section 25850, subdivision (a), (CALCRIM No. 2530)
and the elements of the gang participant sentencing factor of
subdivision (c)(3) (CALCRIM No. 2542). As given, CALCRIM
No. 2542 instructed that, to find Prince was an active member in
a criminal street gang for purposes of section 25850,
subdivision (c)(3), the prosecution must prove Prince was an
active member in a gang at the time of the offense, he knew
members of the gang engaged in a pattern of criminal activity
and he “willfully assisted, furthered or promoted felonious
criminal conduct by members of the gang either by: (a) directly
and actively committing a felony offense; or, (b) aiding and
abetting a felony offense. At least two members of that same
gang must have participated in committing the felony offense.
The defendant may count as one of those members if you find
that the defendant was a member of the gang.” The court did not
include the portion of the pattern instruction defining “felonious
criminal conduct,” enumerating the specific felony offenses the
gang members were alleged to have committed and explaining
the elements of “aiding and abetting” liability.13
13 The portion of CALCRIM No. 2542 Prince argues should
have been included states: “Felonious criminal conduct means
committing or attempting to commit [any of] the following
27
Prince contends these omissions constituted prejudicial
instructional error by “reliev[ing] the prosecution of the burden of
proving beyond a reasonable doubt each element of the charged
offense in violation of appellant’s rights under both the United
States and California Constitutions.”14 We need not determine
whether the instruction as given adequately protected Prince’s
right to have the elements of the sentencing factor submitted to
the jury because any error in failing to instruct the jury was
harmless beyond a reasonable doubt.
crime[s]: . [¶]
To decide whether a member of the gang [or the defendant]
committed , please refer to the separate
instructions that I (will give/have given) you on (that/those)
crime[s]. [¶] To prove that the defendant aided and abetted
felonious criminal conduct by a member of the gang, the People
must prove that: [¶] 1. A member of the gang committed the
crime; [¶] 2. The defendant knew that the gang member intended
to commit the crime; [¶] 3. Before or during the commission of the
crime, the defendant intended to aid and abet the gang member
in committing the crime; [¶] AND [¶] 4. The defendant’s words or
conduct did in fact aid and abet the commission of the crime. [¶]
Someone aids and abets a crime if he or she knows of the
perpetrator's unlawful purpose and he or she specifically intends
to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator's commission of that crime.”
14 The trial court instructed the jury on count 2 with the
identical version of CALCRIM No. 2542. Prince does not
challenge the instruction as to that count.
28
As discussed, a true finding under section 25850,
subdivision (c)(3), required the jury to find Prince had willfully
assisted, furthered or promoted felonious criminal conduct by
members of the gang either by directly committing a felony
offense or aiding and abetting a felony offense. The jury was also
required to find that at least two members of the same gang must
have participated in committing the predicate felony offense.
While the jury was not specifically instructed on the underlying
felony the prosecution alleged Prince had directly committed or
aided and abetted, the jury separately found Prince and
Anderson committed attempted voluntary manslaughter in 2015.
In addition, the jury’s true finding as to the gang sentencing
factor on count 2 necessarily included a finding Prince had
willfully assisted, furthered or promoted felonious criminal
conduct. Given these findings, a properly instructed, rational
jury could not have reached a different conclusion than that
Prince assisted, furthered or promoted felonious criminal conduct
prior to August 30, 2015. Any error was harmless beyond a
reasonable doubt.
3. The Trial Court Did Not Err in Precluding Testimony
Regarding Statements by Radele Blackburn
a. Relevant proceedings
Prior to trial Prince stated he intended to call Radele
Blackburn to testify as a percipient witness. In November 2018,
while in custody on an unrelated matter, Blackburn told Prince’s
investigator he had been present at the shooting on August 30,
2015. Blackburn said he had arranged to meet Jackson at the
liquor store that night to sell him marijuana. While outside the
store, Blackburn saw Jackson approach Prince and Anderson and
ask where they were from. Jackson then repeatedly yelled at
29
Prince and Anderson to give him their money. According to
Blackburn, Jackson was very aggressive and had his hand in his
pocket in such a way that Blackburn thought Jackson might have
a gun. Blackburn did not want to get involved, so he walked
away. He heard shooting but did not see who had fired the shots.
Blackburn also told the investigator Jackson was “known for
carrying guns and robbing people.” Prince argued Blackburn’s
testimony would impeach Jackson by establishing Jackson was a
drug user and would bolster Prince’s account Jackson had acted
aggressively prior to the shooting.
At the time of trial in January 2019, Blackburn was in
custody awaiting his own trial on three felony charges to which
he had pleaded not guilty by reason of insanity. He was also a
person of interest in an unsolved homicide and had multiple prior
convictions, including crimes of moral turpitude. Blackburn was
believed to be a member of a Crips-affiliated criminal street gang.
Blackburn took the witness stand outside the presence of
the jury and invoked his Fifth Amendment privilege against self-
incrimination, stating he would do so for all questions. Counsel
representing Blackburn informed the court he had advised
Blackburn to assert the privilege. The trial court accepted
Blackburn’s assertion of the privilege and denied Prince’s motion,
in which Anderson joined, to compel the prosecutor to grant use
immunity or to grant judicial immunity to Blackburn.
Prince then requested the defense investigator be
permitted to testify pursuant to Evidence Code section 1230
about Blackburn’s November 2018 statement. Anderson joined
the request. The prosecutor argued the statement was not
reliable, citing Blackburn’s history of felony convictions and the
fact he and both defendants were all members of Crips-associated
30
gangs. The prosecutor also informed the court Blackburn had
been in custody with Prince and Anderson in March 2018 and
October 2018 and argued this contact, the latter only a few weeks
before Blackburn’s statement to the investigator, suggested the
defendants may have pressured Blackburn to make a statement
and coached him on what to say.
The trial court denied Prince’s motion to allow the
investigator to testify, finding it was duplicative and not
probative: There was other evidence placing the defendants at
the scene; Jackson had admitted being there to purchase drugs;
and Jackson had stated it was a possibility he had been the
initial aggressor. The court also found the testimony unreliable
given Blackburn’s criminal history, his gang association and his
prior contact with Prince and Anderson.
b. Governing law and standard of review
Evidence Code section 1230 provides, “Evidence of a
statement by a declarant having sufficient knowledge of the
subject is not made inadmissible by the hearsay rule if the
declarant is unavailable as a witness and the statement, when
made, was so far contrary to the declarant’s pecuniary or
propriety interest, or so far subjected him to the risk of civil or
criminal liability . . . that a reasonable man in his position would
not have made the statement unless he believed it to be true.”
“‘The proponent of such [hearsay] evidence must show that the
declarant is unavailable, that the declaration was against the
declarant’s penal interest when made and that the declaration
was sufficiently reliable to warrant admission despite its hearsay
character.’” (People v. Grimes (2016) 1 Cal.5th 698, 741 (Grimes);
accord, People v. Duarte (2000) 24 Cal.4th 603, 610-612.)
31
“The against-interest exception to the hearsay rule is
‘inapplicable to evidence of any statement or portion of a
statement not itself specifically disserving to the interests of the
declarant’ [citations], and ‘a declaration against penal interest
must be “distinctly” against the declarant’s penal interest’
[citations]. Whether or not a statement is against penal interest
can be determined only by considering ‘the statement in context.’”
(Grimes, supra, 1 Cal.5th at p. 741; accord, People v. Duarte,
supra, 24 Cal.4th at pp. 610-612.) Accordingly, Evidence Code
section 1230 does not authorize the admission “of non-self-
inculpatory statements . . . made within a broader narrative that
is generally self-inculpatory.” (Williamson v. United States
(1994) 512 U.S. 594, 600-601, [114 S.Ct. 2431, 129 L.Ed.2d 476];
see Grimes, at p. 715 [citing with approval Williamson’s
interpretation of the “analogous exception to the federal hearsay
rule”].)
A trial court’s decision whether a statement is admissible
under Evidence Code section 1230 is reviewed for abuse of
discretion. (Grimes, supra, 1 Cal.5th at pp. 711-712; People v.
Lawley (2002) 27 Cal.4th 102, 153.)
c. The trial court did not abuse its discretion in
excluding the investigator’s testimony
By invoking his Fifth Amendment privilege not to
incriminate himself, Blackburn was, for purposes of the hearsay
rule, unavailable as a witness. (Evid. Code, § 240, subd. (a)(1);
People v. Cudjo (1993) 6 Cal.4th 585, 606-607.) However, the
majority of Blackburn’s statement to the investigator was not
“specifically disserving” of Blackburn’s penal interest. (Grimes,
supra, 1 Cal.5th at p. 741.) There was no evidence Blackburn’s
statements regarding what he saw or his knowledge of Jackson’s
32
reputation had any bearing on Blackburn’s culpability in any
ongoing case or investigation. Nor was there any explanation of
how those statements could subject him to criminal liability.
Further, his account of the shooting and Jackson’s reputation
was not inextricably tied to a statement against penal interest
such that it fell within the Evidence Code section 1230 hearsay
exception. (See Grimes, at p. 716 [non-inculpatory portions of
statement may be admissible under Evidence Code section 1230
when “‘inextricably tied to and part of a specific statement
against penal interest’”].) Accordingly, those aspects of
Blackburn’s statement were not admissible.
Blackburn’s statement to the investigator that he was at
the liquor store to sell marijuana to Jackson arguably fell within
the scope of Evidence Code section 1230. Although Anderson
contends this testimony was crucial to undermine Jackson’s
credibility as a witness, Jackson admitted he was at the liquor
store that night to buy marijuana. The trial court was well
within its discretion to exclude Blackburn’s confirmation of that
fact as unnecessary and duplicative.
4. The Trial Court Did Not Abuse Its Discretion by
Admitting David Kim’s Expert Testimony
“A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a); see Brown v.
Colm (1974) 11 Cal.3d 639, 645 [expert is qualified if he or she
“has sufficient skill or experience in the field so that his [or her]
testimony would be likely to assist the jury in the search for the
truth”].) Evidence Code section 801, governing the admissibility
of expert testimony provides, “If a witness is testifying as an
33
expert, his testimony in the form of an opinion is limited to such
an opinion as is: [¶] (a) Related to a subject that is sufficiently
beyond common experience that the opinion of an expert would
assist the trier of fact; and [¶] (b) Based on matter (including his
special knowledge, skill, experience, training, and education)
perceived by or personally known to the witness or made known
to him at or before the hearing, whether or not admissible, that is
of a type that reasonably may be relied upon by an expert in
forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such
matter as a basis for his opinion.”
“The trial court’s determination of whether a witness
qualifies as an expert is a matter of discretion and will not be
disturbed absent a showing of manifest abuse.” (People v. Bolin
(1998) 18 Cal.4th 297, 321-322; accord, Sargon Enterprises, Inc.
v. University of Southern California (2012) 55 Cal.4th 747, 773
[“[e]xcept to the extent the trial court bases its ruling on a
conclusion of law (which we review de novo), we review its ruling
excluding or admitting expert testimony for abuse of discretion”];
People v. Robinson (2005) 37 Cal.4th 592, 630 [“trial court’s
determination to admit expert evidence will not be disturbed on
appeal absent a showing that the court abused its discretion in a
manner that resulted in a miscarriage of justice”].) “Error
regarding a witness’s qualifications as an expert will be found
only if the evidence shows that the witness ‘“‘clearly lacks
qualification as an expert.’”’” (People v. Farnam (2002)
28 Cal.4th 107, 162.) “‘“‘Where a witness has disclosed sufficient
knowledge of the subject to entitle his opinion to go to the jury,
the question of the degree of his knowledge goes more to the
34
weight of the evidence than to its admissibility.’”’” (People v.
Nelson (2016) 1 Cal.5th 513, 536.)
“As with expert qualifications, we review trial court
decisions about the admissibility of evidence for abuse of
discretion. Specifically, we will not disturb a trial court’s
admissibility ruling ‘“except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of
justice.”’” (People v. Morales (2020) 10 Cal.5th 76, 97.)
As discussed, David Kim testified that, in his opinion, the
seven shell casings found at the scene were not fired by Prince.
His opinion was primarily based on three observations: Due to
the intensity of the muzzle flash in the video, Kim concluded
Prince had fired a revolver, which would not have ejected shell
casings; Kim did not believe Prince could have fired seven shots
in the short period he was seen shooting in the video; and, even if
Prince had been firing a weapon that ejected shell casings, based
on where Prince had been standing in the video, the shell casings
would have landed in different positions than where they were
found. Anderson’s counsel objected that this testimony lacked
foundation and was speculative. The objections were overruled.
Anderson challenges that ruling on appeal.15
15 Anderson also argues for the first time on appeal that
Kim’s testimony should have been excluded pursuant to Evidence
Code section 352 because its probative value was substantially
outweighed by the danger of undue prejudice. Anderson forfeited
any abuse-of-discretion claim under section 352 by failing to
object on this ground in the trial court. (Evid. Code, § 353,
subd. (a); see People v. Abel (2012) 53 Cal.4th 891, 924 [“‘[a] party
cannot argue the court erred in failing to conduct an analysis it
35
The trial court did not abuse its broad discretion in
permitting Kim’s opinion evidence. Kim testified he had recently
retired from the Los Angeles County Sheriff’s Department where
he had been a firearms instructor for more than four years and
then a forensic firearms examiner for 15 years. He had attended
several tactical and firearms trainings, as well as three years of
firearms-examiner training. He was also a “certified armorer
gunsmith.” During his career Kim had conducted more than
150 crime scene investigations, and he continued to teach crime
scene investigation and evidence handling at the Sheriff’s
academy after his retirement. In preparation for his testimony in
this case, Kim stated he had reviewed the crime scene reports,
surveillance videos, ballistic reports and video recordings and
photographs of the scene taken by deputy sheriffs the night of the
shooting and had visited the crime scene. Kim prepared a
diagram showing the locations of each recovered shell casing
based on his review of this evidence. During his testimony Kim
explained how the evidence he reviewed supported his conclusion
Prince had not fired the shots producing the seven shell casings.
On this record the trial court did not err in finding Kim’s opinions
had an adequate foundation and were based on his training and
experience. (See People v. Morales, supra, 10 Cal.5th at p. 100
[expert’s opinions did not lack foundation when based on trial
evidence, training and experience]; People v. Robinson (2005)
37 Cal.4th 592, 631-632 [same].)
was not asked to conduct’”].) His objection to the testimony on
other grounds was insufficient to preserve this issue for appeal.
(See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
412-413.)
36
Anderson’s arguments that Kim’s opinions lacked
foundation because he did not take his own measurements at the
crime scene, his opinion on the location of the shell casings was
only an approximation and he could not determine precisely from
the video when Jackson had first been shot go to the weight of
Kim’s testimony, not its admissibility, and are thus matters for
the jury. (People v. Morales, supra, 10 Cal.5th at p. 101
[weaknesses in expert’s testimony, including that he did not
examine evidence first hand and did not use actual weapons in
recreation, “go to the weight to be given the evidence, not its
admissibility”]; see also People v. Dennis (1998) 17 Cal.4th 468,
519 [expert may be impeached by cross-examination or by
showing error in data upon which opinion is based]; People v.
Stoll (1989) 49 Cal.3d 1136, 1159 [issues regarding expert’s
methodology are subject of cross-examination].)
5. Anderson Forfeited His Prosecutorial Misconduct
Arguments and Has Not Established Ineffective
Assistance of Counsel
a. Governing law and standard of review
“‘“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332;
accord, People v. Cortez (2016) 63 Cal.4th 101, 130.) Bad faith by
the prosecutor is not required. (People v. Hill (1998) 17 Cal.4th
800, 821.) In this regard, “‘[t]he term prosecutorial “misconduct”
37
is somewhat of a misnomer to the extent that it suggests a
prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.’” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno); see People v.
Sandoval (2015) 62 Cal.4th 394, 438.)
It is misconduct to misstate the facts or refer to facts not in
evidence. (People v. Linton (2013) 56 Cal.4th 1146, 1207; People
v. Ellison (2011) 196 Cal.App.4th 1342, 1353.) Nevertheless, a
prosecutor enjoys wide latitude in commenting on the evidence,
including identifying reasonable inferences derived from the
evidence. (See People v. Edwards (2013) 57 Cal.4th 658, 736 [“[a]
prosecutor’s ‘argument may be vigorous as long as it is a fair
comment on the evidence, which can include reasonable
inferences or deductions to be drawn therefrom’”]; People v. Hill,
supra, 17 Cal.4th at p. 823 [same].)
It is also prosecutorial misconduct to misstate the
applicable law. (People v. Gray (2005) 37 Cal.4th 168, 217.) As
with any other claim of prosecutorial misconduct, however, “[a]
prosecutor’s misstatements of law are generally curable by an
admonition from the court.” (Centeno, supra, 60 Cal.4th at
p. 674.) The failure to object and request an admonition forfeits
the issue unless “the prosecutor’s argument [was] so extreme or
pervasive that a prompt objection and admonition would not have
cured the harm.” (Ibid.; accord, People v. Charles (2015)
61 Cal.4th 308, 327 [“‘“[t]o preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and
specific objection and ask the trial court to admonish the jury to
disregard the improper argument”’”].)
When the issue has been preserved, we review a trial
court’s ruling regarding prosecutorial misconduct for abuse of
38
discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) A
defendant’s conviction will not be reversed for prosecutorial
misconduct that violates state law “‘unless it is reasonably
probable that a result more favorable to the defendant would
have been reached without the misconduct.’” (People v. Wallace
(2008) 44 Cal.4th 1032, 1070-1071; accord, People v. Lloyd (2015)
236 Cal.App.4th 49, 60-61.)
b. Anderson’s argument based on the prosecutor’s
mischaracterization of the law has been forfeited; he
has not established ineffective assistance of counsel
During his opening statement the prosecutor explained the
People’s case relied partially on a theory Anderson was guilty of
attempted murder as an aider and abettor. The prosecutor
stated, “A person is equally guilty of the crime, whether he
committed it personally or aided and abetted the perpetrator who
committed it. . . .” “[T]hey’re both equally in violation of the law.”
The objection of Anderson’s counsel was sustained, and the
statement stricken. The prosecutor then stated, “An aider and
abett[or] is as equally responsible as the person who attempts to
kill.” Neither defendant’s counsel objected.
During his closing argument the prosecutor again stated
Anderson, if found to be an aider and abettor, was “equally
guilty,” “equally in violation of the law” and “just as responsible
as the person who attempts to kill.” Neither defendant’s counsel
objected.
Anderson argues the prosecutor misstated the law of aider
and abettor liability because an aider and abettor is not
necessarily as equally culpable as the direct perpetrator. Other
than the sustained objection during the prosecutor’s opening
statement, however, Anderson did not object to any of the
39
statements he now identifies as a mischaracterization of the law.
Accordingly, he has forfeited that argument. (People v. Charles,
supra, 61 Cal.4th at p. 327; People v. Williams (2013) 58 Cal.4th
197, 274.)
Acknowledging the argument has been forfeited, Anderson
contends his trial counsel was ineffective in not objecting to the
prosecutor’s remarks. “‘A defendant whose counsel did not object
at trial to alleged prosecutorial misconduct can argue on appeal
that counsel’s inaction violated the defendant’s constitutional
right to the effective assistance of counsel.’” (Centeno, supra,
60 Cal.4th at p. 674; accord, People v. Lopez (2008) 42 Cal.4th
960, 966.) To prevail on his claim of ineffective assistance of
counsel, Anderson must demonstrate his counsel’s performance
was deficient because it fell below an objective standard of
reasonableness under prevailing professional norms and, because
of those deficiencies, there exists a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” (Strickland v.
Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d
674]; accord, Centeno, at pp. 674, 676.)
“‘Unless a defendant establishes the contrary, we shall
presume that “counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions
can be explained as a matter of sound trial strategy.”’ When the
record on direct appeal sheds no light on why counsel failed to act
in the manner challenged, defendant must show that there was
‘“‘no conceivable tactical purpose’” for counsel’s act or omission.’
‘[T]he decision facing counsel in the midst of trial over whether to
object to comments made by the prosecutor in closing argument is
a highly tactical one . . .[,’ and] ‘a mere failure to object to
40
evidence or argument seldom establishes counsel’s
incompetence.’” (Centeno, supra, 60 Cal.4th at pp. 674-675,
citations omitted; accord, People v. Jackson (2016) 1 Cal.5th 269,
349.)
Here, the prosecutor’s statements an aider and abettor is as
equally guilty as the direct perpetrator is “generally correct in all
but the most exceptional circumstances.” (People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1165; accord, People v. Loza (2012)
207 Cal.App.4th 332, 349 [“‘[g]enerally, a person who is found to
have aided another person to commit a crime is “equally guilty” of
that crime’”].) To the extent the statement may be misleading in
certain circumstances (see Samaniego, at pp. 1164-1165), it is
entirely possible counsel elected not to object to expedite
argument and avoid continued emphasis on the suggestion
Anderson was guilty by association with Prince. In fact, in his
opening brief, Anderson acknowledges counsel may have failed to
object for this very reason, stating, “[A]n additional objection
would have had the opposite effect, calling the jury’s attention to
the very thing the defense would not have wanted—jurors relying
on their finding Prince was guilty to convict [Anderson].” On this
record, which is silent on counsel’s reasons for not objecting, we
cannot say there was no conceivable tactical reason for counsel’s
failure to object to the remarks Anderson now challenges on
appeal.
c. The prosecutor did not engage in prejudicial
misconduct when discussing the surveillance video
during his opening statement
During his opening statement the prosecutor played the
surveillance video for the jury. While doing so, he described what
was occurring in the video. For example, he stated, “The
41
evidence will show in the upper left hand corner of the frame
there’s a person in a white T-shirt standing on Kingtree Avenue
as Mr. Prince and Mr. Anderson exit the store. The evidence will
show that they go down the sidewalk and then they turned back
towards the person in the street in the upper left hand corner in
the white T-shirt. Suddenly Anderson goes forward and Prince
follows.” Defense counsel objected a number of times while the
prosecutor was discussing the video; most of the objections were
overruled.
When the prosecutor concluded his opening statement,
Anderson’s counsel moved for a mistrial based on prosecutorial
misconduct, arguing the opening was “so rife with [the
prosecutor’s] opinion and his testimony I don’t think it can be
cleaned up.” The trial court denied the motion, explaining,
“[T]here were a few times where [the prosecutor] did become a bit
argumentative in his describing what he believes the evidence
will show. When that was raised he correctly adhered to what is
considered to be opening statement. . . . I do not believe that his
opening statement rises to the level of prosecutorial misconduct.”
The court noted it had already admonished the jury regarding the
role and purpose of opening statements and asked counsel if they
wished to have the jury admonished again.16 Counsel declined.
16 Immediately prior to the prosecutor’s opening statement
the trial court informed the jury, “It is now time for the attorneys
to give their opening statements if they choose to do so.
Remember what they say is not evidence in this case, it is merely
an outline of what they expect the evidence in this case to show.”
Again during Prince’s counsel’s opening statement the jury was
admonished, “Everything at this point is a statement of what
each attorney expects the evidence to show.”
42
The trial court did not err in ruling the prosecutor’s
remarks did not constitute prosecutorial misconduct. “The
purpose of the opening statement ‘“is to prepare the minds of the
jury to follow the evidence and to more readily discern its
materiality, force and effect.”’” (People v. Fauber (1992) 2 Cal.4th
792, 827.) “It is axiomatic that nothing the prosecutor says in an
opening statement is evidence.” (Ibid.) “‘[R]emarks made in an
opening statement cannot be charged as misconduct unless the
evidence referred to by the prosecutor “was ‘so patently
inadmissible as to charge the prosecutor with knowledge that it
could never be admitted.’”’” (People v. Dykes (2009) 46 Cal.4th
731, 762; accord, People v. Cole (2004) 33 Cal.4th 1158, 1203
[“prosecutors ‘have wide latitude to discuss and draw inferences’”;
whether inferences are reasonable is for the jury to decide].)
In this case the jury was instructed that the prosecutor’s
opening statement did not constitute evidence. Any
inconsistencies between the prosecutor’s description of the video
and what it actually portrayed would have been readily apparent
to the jury during the opening statement or the many other times
it viewed the video over the course of the trial. Anderson does
not contend the prosecutor referred to any evidence that was not
admitted at trial nor has Anderson disputed the accuracy of the
prosecutor’s descriptions of the video. The prosecutor’s
statements were well within the wide scope of permissible
descriptions of evidence and did not constitute misconduct.
6. Anderson’s Sentence Does Not Violate Section 654;
Prince’s Sentence Requires Correction
a. Governing law and standard of review
Section 654, subdivision (a), provides, “An act or omission
that is punishable in different ways by different provisions of law
43
shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision.”
The determination whether a defendant may be subjected
to multiple punishment under section 654 requires a two-step
inquiry. First, the court considers whether the different crimes
were completed by a single physical act. If so, the defendant may
be punished only once for the single act. (People v. Corpening
(2016) 2 Cal.5th 307, 311.) If more than a single act is involved,
that is, a “course of conduct,” then the court considers whether
“that course of conduct reflects a single ‘“intent and objective”’ or
multiple intents and objectives.” (Ibid.) If multiple acts were
pursued with a single criminal intent and objective, “‘“‘the
defendant may be punished for any one of such offenses but not
for more than one.’”’” (People v. Jackson, supra, 1 Cal.5th at
p. 354; accord, Corpening, at p. 311.)
A trial court’s section 654 determinations based on
disputed facts are reviewed for substantial evidence. (People v.
Osband (1996) 13 Cal.4th 622, 730-731; People v. Jones (2002)
103 Cal.App.4th 1139, 1143 [trial court “is vested with broad
latitude” in making its section 654 determination and court’s
“findings will not be reversed on appeal if there is any substantial
evidence to support them”].)
b. The trial court properly sentenced Anderson for
possession of a loaded firearm
Anderson contends his sentence for possession of a loaded
firearm (count 4) should have been stayed under section 654
because it was part of the same act as the attempted voluntary
manslaughter. However, section 654 does not bar separate
punishments for unlawfully possessing a firearm and a crime
44
committed with the firearm when those offenses were committed
by separate acts not part of an indivisible course of conduct.
Unless the evidence “demonstrates ‘at most that fortuitous
circumstances put the firearm in the defendant’s hand only at the
instant of committing another offense,’” punishment for both
offenses is proper. (People v. Jones, supra, 103 Cal.App.4th at
p. 1144 [section 654 did not bar punishment for both possession
of firearm by felon and shooting at inhabited dwelling]; cf. People
v. Bradford (1976) 17 Cal.3d 8, 22-23 [where defendant wrestled
away officer’s revolver and shot officer with it, punishment for
both assault with deadly weapon on peace officer and possession
of firearm by felon was prohibited by section 654].)
Here, the inference that Anderson arrived at the scene of
the crime already armed with a loaded firearm was reasonable
and supported by substantial evidence. There was no evidence
Anderson picked up a firearm in the vicinity of the liquor store
immediately before the shooting. Further, nothing in the
surveillance video could be interpreted as Anderson finding and
grabbing a weapon from a location other than on his person. The
only reasonable inference is that Anderson possessed the firearm
prior to, and separate from, his encounter with Jackson. (See
People v. Jones, supra, 103 Cal.App.4th at p. 1147 [“[i]t strains
reason to assume that Jones did not have possession for some
period of time before firing shots at the Walter home. Any other
interpretation would be patently absurd”].) Under these
circumstances section 654 does not prohibit punishment for both
attempted voluntary manslaughter and firearm possession.
(Ibid.; see also People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378
[evidence that defendant arrived at scene of kidnapping and
carjacking already in possession of firearm was sufficient to show
45
that defendant harbored separate intent and objective in illegally
possessing firearm and in using firearm in commission of
kidnapping during carjacking].)
c. The trial court properly sentenced Prince on both
counts of carrying a loaded firearm
Prince was convicted on counts 2 and 6 of carrying a loaded
firearm while an active participant in a criminal street gang.
The jury also found true Prince committed the offenses for the
benefit of a criminal street gang pursuant to section 186.22,
subdivision (b). Prince contends his sentences for the
enhancements should have been stayed under section 654
because they were based on the same physical act as the
substantive offenses, “namely, carrying a loaded gun while being
an active participant in a criminal street gang.”
Prince’s argument rests on a fundamental misapprehension
of applicable law. As discussed, conviction for carrying a loaded
firearm while an active participant in a criminal street gang
(§ 25850, subd. (c)(3)) requires proof of each element of
section 186.22, subdivision (a)—actively participating in a
criminal street gang with knowledge its members engage in or
have engaged in a pattern of criminal gang activity and willfully
promoting or assisting in any felonious conduct by members of
the gang. (People v. Infante, supra, 58 Cal.4th at p. 692.)
Section 186.22, subdivision (b)(1), on the other hand, provides for
a sentence enhancement for any person convicted of a felony that
was committed for the benefit of, at the direction of, or in
association with any criminal street gang with the specific intent
46
to promote, further or assist in any criminal conduct by gang
members. (People v. Livingston (2012) 53 Cal.4th 1145, 1170.)17
As the Supreme Court has explained, “Section 186.22(a)
and section 186.22(b)(1) strike at different things.” (People v.
Rodriguez, supra, 55 Cal.4th at p. 1138.) Subdivision (b)(1) seeks
to punish felonies committed to benefit the gang, regardless of
whether the defendant is a gang member. (See People v. Albillar
(2010) 51 Cal.4th 47, 68 [a true finding under section 186.22,
subdivision (b)(1), “does not depend on membership in a gang at
all”].) Subdivision (a) seeks to punish gang members who have
committed a felony in concert with other gang members,
regardless of whether the felony was related to the gang.
(See Rodriguez, at p. 1138; People v. Ferraez (2003)
112 Cal.App.4th 925, 930 [section 186.22, subdivision (a), “‘is a
substantive offense whose gravamen is the participation in the
gang itself’”].)
In determining whether section 654 prohibits multiple
punishments for sentence enhancements and sentencing factors,
17 A “criminal street gang” is defined as “any ongoing
organization, association, or group of three or more persons,
whether formal or informal, having as one of its primary
activities the commission of one or more of [certain enumerated]
criminal acts[,] . . . having a common name or common
identifying sign or symbol, and whose members individually or
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal gang
activity’ means the commission of . . . or conviction of two or more
of [certain enumerated offenses]” that “were committed on
separate occasions, or by two or more persons.” (§ 186.22,
subd. (e).)
47
the analysis is adjusted to account for the differing nature of
substantive crimes and enhancements. (See People v. Ahmed
(2011) 53 Cal.4th 156, 163.) “[E]nhancement provisions do not
define criminal acts; rather, they increase the punishment for
those acts. They focus on aspects of the criminal act that are not
always present and that warrant additional punishment.” (Ibid.)
Separate enhancements or sentencing factors may be applied to
different aspects of the same substantive offense, but “section 654
bars multiple punishment for the same aspect of a criminal act.”
(Id. at p. 164.) “If section 654 barred any additional punishment
for a single criminal act, then no enhancement at all would be
permitted, a result obviously inconsistent with the function of
sentence enhancements.” (Ibid.)
Here, the sentencing factor and enhancement imposed on
the firearm convictions penalized different aspects of Prince’s
crimes: The section 25850, subdivision (c)(3), sentencing factor
applied because of Prince’s status as an active gang member
when he carried a loaded firearm; the purpose of the offenses was
irrelevant. The section 186.22, subdivision (b)(1), enhancement
applied because the offense was committed, at least in part, to
benefit the gang; Prince’s status was irrelevant. Because the
sentencing factor and enhancement punished different aspects of
the crime, sentencing under both provisions did not violate
section 654. (Cf. People v. Garcia (2007) 153 Cal.App.4th 1499,
1514 [“section 654 does not prohibit punishing a defendant both
for violating section 186.22, subdivision (a) and for the
underlying crime committed for the benefit of the gang when the
two offenses involve different objectives”].)
48
d. Prince’s sentence for unlawfully possessing
ammunition on August 30, 2015 must be stayed
pursuant to section 654
Prince contends, the Attorney General concedes, and we
agree the trial court erred in failing to stay under section 654 the
sentence for Prince’s conviction for unlawfully possessing
ammunition on August 30, 2015, charged in count 3.
Prince was convicted of carrying a loaded firearm on the
night of the shooting (count 2) and of unlawfully possessing
ammunition at the same time (count 3). It is undisputed,
however, that the only ammunition Prince possessed was loaded
in the firearm. On these facts substantial evidence does not
support a finding Prince had more than one objective in
possessing the loaded firearm and the ammunition. (See People
v. Broadbent (2020) 47 Cal.App.5th 917, 923 [trial court erred in
not staying sentences imposed for sale of firearms and sale of
large-capacity magazines where firearms were sold with
magazines]; People v. Sok (2010) 181 Cal.App.4th 88, 100 [trial
court should have stayed sentence for defendant’s possession of
ammunition where it imposed sentence for unlawful possession of
firearm and ammunition was either loaded into the firearm or
had been fired from the firearm]; People v. Lopez (2004)
119 Cal.App.4th 132, 138 [trial court erred in failing to stay
sentence for possession of ammunition where the ammunition
was loaded into the firearm and defendant’s intent was to possess
a loaded firearm].)
49
7. Anderson Has Forfeited the Argument the Trial Court
Abused Its Discretion by Imposing Consecutive Sentences
for Attempted Voluntary Manslaughter and Possession of
a Loaded Firearm
The trial court has “broad discretion to decide . . . whether
to run the prison terms on multiple offenses concurrently or
consecutively.” (People v. Clancey (2013) 56 Cal.4th 562, 579.)
California Rules of Court, rule 4.425 sets forth specific criteria
affecting the decision, including the presence of circumstances in
aggravation or mitigation. The trial court must generally state
its reasons for choosing to impose consecutive sentences (Cal.
Rules of Court, rule 4.406(b)(5)), but “there is no requirement
that, in order to justify the imposition of consecutive terms, the
court find that an aggravating circumstance exists.” (People v.
Black (2007) 41 Cal.4th 799, 822.) “In imposing an upper term,
the court must set forth on the record ‘facts and reasons’
[citation], including the ‘ultimate facts that the court deemed to
be circumstances in aggravation.’ [Citation.] But it need only
cite ‘reasons’ for other sentencing choices (§ 1170, subd. (c)), and
the reasons given for imposing a consecutive sentence need only
refer to the ‘primary factor or factors’ that support the decision to
impose such a sentence. (Cal. Rules of Court, rule 4.406(a), (b);
§ 1170, subd. (c); see People v. Tran (1996) 47 Cal.App.4th 759,
774.)” (Black, at p. 822.)
At the sentencing hearing the trial court heard arguments
from the parties regarding section 654 and allowed the attorneys
to make arguments regarding mitigating and aggravating
factors. The court then took a recess to calculate the sentences,
after which it stated it had reviewed the sentencing memoranda
and attachments as well as the probation reports. The court
stated, “I am persuaded by the People’s argument with respect to
50
the sentencing structure being one of consecutive as opposed to
concurrent. I am also not inclined to stay any part of the
sentence pursuant to Penal Code section 654; I think that the
jury verdicts are indicative of what they thought with respect to
the crimes that were committed. I am persuaded by the People’s
argument that these were acts that could be divided with respect
to the attempted voluntary manslaughter and the gun.” The
court then pronounced the sentences and asked if the parties
wished to be heard further; the prosecutor and Prince’s attorney
each made a brief record regarding ancillary issues. Neither
Prince nor Anderson’s counsel objected to the sentences imposed.
Anderson requests we remand his case for resentencing
because the trial court failed to state its reasons for imposing
consecutive sentences for attempted voluntary manslaughter and
possession of a loaded firearm (counts 1 and 4). However,
Anderson’s failure to object at sentencing to the imposition of
consecutive sentences forfeited his contention. (See People v.
Boyce (2014) 59 Cal.4th 672, 730 [“‘complaints about the manner
in which the trial court exercises its sentencing discretion and
articulates its supporting reasons cannot be raised for the first
time on appeal’”]; People v. Gonzalez (2003) 31 Cal.4th 745, 751
[same]; People v. Scott (1994) 9 Cal.4th 331, 353 [same].)
In his reply brief Anderson argues the forfeiture rule
should not apply because the trial court “announced its decision
without a statement of any specific factors it considered or found
outweighed factors in mitigation, leaving no opportunity for a
meaningful objection.” This argument is without merit. The trial
court’s announcement of the sentences, followed by counsel’s
opportunity to raise additional issues, gave Anderson sufficient
opportunity to object or seek clarification. (See People v.
51
Gonzalez, supra, 31 Cal.4th at p. 752 [“parties are given an
adequate opportunity to seek such clarifications or changes if, at
any time during the sentencing hearing, the trial court describes
the sentence it intends to impose and the reasons for the
sentence, and the court thereafter considers the objections of the
parties before the actual sentencing”].) To the extent the court
did not articulate at the hearing the aggravating factors
supporting imposition of consecutive sentences, it was incumbent
on trial counsel to seek clarification. This is precisely the kind of
readily correctable error the forfeiture rule is intended to
prevent.
8. The Trial Court Failed To Impose or Strike Gang
Enhancements on Prince’s Ammunition Convictions
(Counts 3 and 7)18
Despite the jury’s finding Prince had committed the
offenses of unlawful possession of ammunition (counts 3 and 7)
18 In some instances we will modify a sentence to impose or
strike terms that were improperly stayed or omitted. However,
when, as here, a sentence is composed of multiple elements as to
which the trial court had some discretion (see, e.g., §§ 669
[vesting court with discretion to choose between concurrent and
consecutive sentences]; 1170, subd. (b) [affording discretion to
trial court to select among three statutorily authorized terms of
imprisonment]), the appropriate remedy is to remand to permit
the trial court to reconsider all components of the sentence. (See
People v. Salvador (2017) 11 Cal.App.5th 584, 586-587 [court’s
erroneous imposition of sentencing enhancement on multiple
counts favored remand for resentencing rather than
modification]; People v. Bradley (1998) 64 Cal.App.4th 386, 400-
401 [remand for resentencing is appropriate when sentencing
choice within trial court’s discretion].)
52
for the benefit of a criminal street gang, at sentencing the trial
court failed to consider those enhancements. Neither the People
nor the court proffered a reason for omitting them, and we find no
support for that decision in the record.19
On remand the court must either impose the additional
punishment mandated under section 186.22,
subdivision (b)(1)(A), or strike the additional punishment after
making the findings specified in section 186.22, subdivision (g).20
DISPOSITION
The judgment as to Anderson is affirmed. Prince’s
convictions are affirmed. Prince’s sentence is vacated, and his
case remanded for a new sentencing hearing.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
19 The parties do not raise this issue on appeal. However, we
have an obligation to correct an unauthorized sentence whenever
it comes to our attention. (See People v. Cunningham (2001)
25 Cal.4th 926, 1044-1045; People v. Dotson (1997) 16 Cal.4th
547, 554, fn. 6].)
20 Section 186.22, subdivision (g), states: “Notwithstanding
any other law, the court may strike the additional punishment
for the enhancements provided in this section . . . if the court
specifies on the record and enters into the minutes the
circumstances indicating that the interests of justice would best
be served by that disposition.”
53