People v. Sims CA1/1

Filed 9/4/20 P. v. Sims CA1/1
(opinion following transfer from Supreme Court)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A155339
v.
ANTHONY SIMS, (Alameda County
Super. Ct. No. 604145A)
Defendant and Appellant.

Defendant Anthony Sims participated in a gun battle that caused the
death of an innocent bystander, Chyemil Pierce, in front of her two young
children. A jury found him guilty of second degree murder and found true
various firearm enhancements, including that he personally and
intentionally discharged a firearm causing great bodily injury or death. At
the prosecutor’s request, the trial court struck the firearm enhancements,
and Sims was sentenced to 15 years to life in prison.
On appeal, Sims claims that various prosecutorial errors warrant
reversal of his conviction. He also claims that his trial counsel rendered
ineffective assistance by failing to request an ability-to-pay hearing before
the trial court imposed a $10,000 restitution fine and $10,000 parole
revocation restitution fine. We affirm.

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 I.
FACTUAL AND PROCEDURAL
BACKGROUND
Sims was tried with three other participants in the gun battle. We
affirmed the convictions of two of his co-defendants, Alex Davis and Michael
Stills, Jr., in a previous opinion. (People v. Davis (Mar. 27, 2019, A152259 &
A153136) (Davis) [nonpub. opn.].) Our recitation of the facts in the following
subheadings A through I is quoted from that opinion. As set forth in more
detail below, the evidence tended to suggest that Sims shot at the third co-
defendant, Jerry Harbin; was shot in the chest himself; and escaped from the
scene as Davis, who fired the shot that killed Pierce, shot toward him and
another participant, Julian Ambrose.
“A. Third World and the Bottoms.
“In March 2015, Pierce was killed near the intersection of 30th Street
and Chestnut Street in West Oakland. The area is nicknamed ‘Third World’
after a rapper from there. Of the people charged with crimes in connection
with Pierce’s murder, several were associated with Third World: Shelton
McDaniels, who hung out in a house at that intersection; Davis, who was
friends with McDaniels and also hung out at the house; Jerry Harbin, who
shared a half brother with McDaniels and also hung out in Third World,
although he was not from that neighborhood; and Stills, who grew up around
Third World and often hung out in that area as well.
“The other people charged were associated with another neighborhood
of West Oakland known as ‘the Bottoms’: Joneria Reed; her son, Dijon Ward;
a cousin of hers, . . . Sims, who was actually from East Oakland; and . . .
Ambrose, who was friends with Ward.
“Despite the prosecution’s attempts to paint the shootout as a battle
between warring groups, little evidence suggested there was any tension

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between the two neighborhoods at the time of the murder. To the contrary,
several witnesses testified that the conflict that day grew out of personal
disagreements. Indeed, as discussed further below, the evidence showed a
complex web of friendships and other connections between the two groups.[ 1]
...
“B. Harbin and His Girlfriend Go to Third World.
“On March 9, 2015, Harbin, who was the only one of the four
defendants to testify, bought a used red Porsche Cayenne SUV. Around
3:30 p.m., he picked it up from the seller at 30th Street and Broadway in
Oakland. He left the car he had driven there, a rental gray Buick Regal, and
drove the Porsche to 28th Street to pick up his girlfriend.
“After getting his girlfriend, Harbin called McDaniels, whom he
considered a brother. McDaniels was at a nearby liquor store, and Harbin
headed there to show him the Porsche. While his girlfriend stayed in the car,
Harbin got out and spoke to McDaniels, who was with Davis, a friend

1 Sims, Harbin, Davis, and Stills were tried together in this case. After
the jury indicated it was deadlocked on the murder charge against Harbin, he
pleaded no contest to voluntary manslaughter, and he was sentenced to 13
years in prison in July 2017. Davis and Stills were convicted of second
degree murder and various firearm enhancements, and later that year they
were sentenced, respectively, to 40 years in life in prison and 16 years to life
in prison. (Davis, supra, A152259 & A153136.) Sims, who was 19 years old
at the time of the murder, was not sentenced until July 2018, to allow for
time to make a record for a future youth offender parole hearing under
People v. Franklin (2016) 63 Cal.4th 261.

The cases against McDaniels and Ambrose were still pending at the
time of Sims’s sentencing. “Ward pleaded no contest to being an accessory
after the fact and received probation. Finally, Reed testified for the
prosecution in this case under an agreement that if she was truthful, she
would be allowed to withdraw her plea to murder and receive a six-year
sentence for voluntary manslaughter.” (Davis, supra, A152259 & A153136.)

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nicknamed Goofy, and another friend Harbin did not know. McDaniels told
Harbin that there was a group of ‘maybe 15 to 20 women’ in the Third World
area who were ‘trying to basically hang out and have a good time’ with
McDaniels and his friends. McDaniels invited Harbin to come, and Harbin
responded that he would meet McDaniels there after taking his girlfriend to
pick up the Buick.
“Meanwhile, Harbin’s girlfriend spoke on the phone to one of her close
friends. Based on the conversation, Harbin’s girlfriend believed that her
friend was going to get in a fight with Ward’s girlfriend and that another
friend, R.B., might also become involved. R.B. had dated Donald Ward,
Ward’s brother and Reed’s son, until his murder a few months earlier. R.B.
was in the beginning stages of a relationship with McDaniels, whom she
continued to date after he went to jail for Pierce’s murder.
“When Harbin returned to the Porsche and told his girlfriend they were
going to get the Buick, she asked him if he could first take her to find R.B.
Harbin had seen R.B. around 30th and Chestnut, where she lived, earlier
that day, so he drove to that area. He testified that when he and his
girlfriend arrived, there were ‘a lot of women in the middle of the street,’
including his younger cousin, who was best friends with R.B. The women
were ‘in an uproar,’ and he ‘could tell something was going on.’ His girlfriend
spotted R.B. and asked her to leave with them, but R.B. refused.
“C. The Fight Between Harbin’s Girlfriend and Ward’s Girlfriend.
“Reed and her sister had driven to Third World earlier that afternoon
to visit a friend. Ward’s girlfriend, the mother of his child, subsequently
arrived at 30th and Chestnut to get Reed’s EBT card to buy groceries. Two of
Ward’s girlfriend’s female cousins accompanied her. At the time they
arrived, Davis, Stills, and McDaniels were in the area.

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 “Before Harbin and his girlfriend could leave after making contact with
R.B., Ward’s girlfriend approached the passenger’s-side window of the
Porsche and asked Harbin’s girlfriend what she was looking at. Harbin’s
girlfriend responded, ‘ “I’m grown. I can look wherever I want,” ’ and they
exchanged more words. Harbin’s girlfriend testified that Ward’s girlfriend
did not like her because she had had a fling with Ward the previous year, but
Ward’s girlfriend denied ever ‘hav[ing] issues over [Ward]’ with the other
woman.
“Harbin tried to drive away, but his girlfriend, whom he described as
having an ‘explosive’ temper, jumped out of the Porsche while it was moving.
She ‘beeline[d] straight towards [Ward’s girlfriend],’ punched her, and
grabbed her hair. Harbin’s girlfriend was bigger than Ward’s girlfriend, and
witnesses agreed that Harbin’s girlfriend was winning the fight.
“Several other women then joined the fight to help Ward’s girlfriend.
Among them were Reed’s sister, both of Ward’s girlfriend’s cousins, and
Harbin’s cousin. R.B. saw Ward’s girlfriend’s younger cousin hit Harbin’s
girlfriend and intervened in an attempt to stop the fight, but she soon gave
up in the chaos.
“Meanwhile, Harbin got out of the Porsche and also tried to stop the
fight. He saw his cousin punching his girlfriend, who was pregnant but not
yet showing, and said, ‘ “You know she pregnant. You wrong. What are y’all
doing?” ’ Several of the women were pulling his girlfriend’s hair, and he tried
to remove their hands from her head and pull her away from Ward’s
girlfriend.
“According to Ward’s girlfriend, Harbin ‘pushed people off of [his
girlfriend], got violent with the girls,’ including hitting Ward’s girlfriend’s
younger cousin. Ward’s girlfriend’s cousins agreed with this characterization,

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although the younger one allowed that Harbin was originally trying to break
up the fight. Reed testified that as she was trying to stop the fight, Harbin
‘shove[d]’ her to the ground. Harbin admitted that he pushed Reed as he was
‘breaking everyone up’ but denied it was intentional.
“Reed testified that she expected one of the men present from the Third
World group would help her up, ‘since they were cool with [her deceased] son,’
and she became angry when no one did. A neighbor who lived near 30th and
Chestnut testified that she ‘noticed a commotion’ and then heard a female
voice say, ‘ “You Third World niggas are some punk ass niggas,” ’ and refer to
a woman’s being pushed to the ground.
“Reed stated that after being pushed to the ground, she said to Harbin,
‘ “Why the fuck you put your hands on me?” ’ She testified, ‘I remember
someone saying, “That’s Donald mom.” And the next thing I heard was
[Harbin say], “Fuck you and your dead son.” ’ Ward’s girlfriend and her
cousins testified that they also heard this response. Harbin, however, denied
saying anything to Reed about her son: ‘[S]he’s saying that somebody said,
“That’s Donald’s mom,” that would mean as much to me as if somebody were
to tell me you’re Andrew’s dad or you[’re] Michael’s mom. I don’t know who
Donald is. I don’t know this lady at all. [¶] That was pure embellishment.
That’s something that she created after Ms. Pierce [died].’ R.B. did not hear
anyone say anything bad about her deceased boyfriend either.
“D. Harbin and His Girlfriend Leave.
“After Reed fell, Harbin and his girlfriend got back into the Porsche.
Harbin’s girlfriend testified that she wanted to leave because she did not
‘want to put [Harbin’s] life in jeopardy over a girl fight.’ Before they could
drive away, Ward’s girlfriend approached the passenger’s-side window and
tried to pepper spray Harbin’s girlfriend, but nothing came out.

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 “According to Ward’s girlfriend, Harbin then ‘flashed’ a handgun at her,
at which point she backed away from the car. Her cousins also both testified
that Harbin showed a gun. Harbin, a convicted felon, admitted that he was
carrying a semiautomatic 1911 .45-caliber handgun at the time, but he
denied showing it to Ward’s girlfriend. When asked why he had a gun that
day, he explained, ‘It’s Oakland. It’s like NASCAR. You’re gonna wear
seatbelts. You’re not looking to get into a crash, but it happens.’
“Harbin, who was upset with his girlfriend for fighting, dropped her
back off on 28th, which was about six blocks away. He then drove the
Porsche to his uncle’s house on nearby Mead Street, left it parked there, and
got a ride to 30th and Broadway so he could retrieve his Buick.
“Harbin testified that as he was driving the Buick, McDaniels called
him and told him ‘to come back [to 30th and Chestnut] basically and
straighten all of this out.’ Harbin explained that he did not drive the Porsche
back to the area because he was already in the Buick, the Porsche had an
alignment problem, and he ‘was on probation and . . . didn’t want to get
pulled over in this car because [his girlfriend] had a fight in this car.’ He
testified that heading back to Third World, he thought he ‘had got rid of the
problem and . . . [was] coming back to fix whatever had happened.’ He
elaborated, ‘It’s a fight between two 19-year-old girls. Like, I’m not expecting
anybody to be hurt behind it.’
“E. Reed Calls Ward and Sims to the Scene.
“Harbin’s girlfriend testified that before leaving 30th and Chestnut
with Harbin, she heard Ward’s girlfriend say, referring to Ward, ‘ “Call my
baby daddy.” ’ According to Harbin’s girlfriend, Reed then grabbed the phone

7
and talked to her son. Harbin’s girlfriend and R.B. both heard Reed say
something like, ‘ “This nigga put his hands on me.” ’
“Reed admitted that she called Ward and told him that someone had
put hands on her, as well as that his girlfriend had been beaten up. Reed
also admitted that Ward already knew she was in Third World and that she
expected him to show up, even though she denied actually asking him to do
so. Believing Ward might arrive, Reed also called Sims because she did ‘not
want[] [her son] to be alone.’ Sims told her he was in East Oakland, which
she testified made her think he would not come.
“Ward’s girlfriend’s younger cousin testified that meanwhile,
McDaniels ‘said something . . . like, “You bitches aren’t from around here,” ’
and told her and her cousins to leave. Ward’s girlfriend’s older cousin heard
him say that ‘no one was gonna do anything to his brother,’ apparently
referring to Harbin, and both cousins saw him run into a house. The older
cousin claimed she then saw him come back out holding a ‘long gun.’ Fearing
that ‘something bad was getting ready to happen,’ she urged Ward’s
girlfriend and their other cousin to leave, but Ward’s girlfriend refused. Her
cousins left, and Ward’s girlfriend walked to R.B.’s house across the street to
get a towel for her face, which was bleeding.
“Shortly afterward, Ward, Sims, and Ambrose arrived at 30th and
Chestnut. Ward was driving either a purple or blue Acura. Ward and
McDaniels were friends, and both Reed and R.B. saw Ward speak to
McDaniels. R.B. tried to talk to Ambrose, whom she had known for ‘[a] real
long time,’ so she could tell him ‘what really happened, because [she knew]
people already told him, like, [Reed] . . . got pushed and that was just stuck in
his head that somebody pushed [Reed].’ But when she called his name,
Ambrose acted as if he was not ‘trying to hear’ her and did not respond.

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 “F. Harbin Returns, and the Shooting Begins.
“R.B. testified, and Reed confirmed, that Reed’s sister then yelled,
‘ “There that nigga go right there.” ’ R.B. saw Harbin driving down the street
in a gray car and heard gunshots. Similarly, Ward’s girlfriend testified that
before dropping to the ground in R.B.’s house, she saw Harbin driving quickly
down 30th and heard numerous gunshots. R.B. testified that she saw first
Ambrose and then Sims shooting handguns toward Harbin’s car. Reed also
testified that before running away from the scene she saw Ambrose shooting
toward a car, although she denied that Sims was even there.
“R.B. testified that she also saw Davis, who was the only defendant
who had dreadlocks, shooting toward Ambrose and Sims. She could not
remember what Davis’s gun looked like. To impeach this testimony, Davis
introduced evidence that in a police interview soon after the murder, R.B.
identified him but specifically denied seeing him shoot.
“Harbin testified that as he was pulling in to park near the house
where McDaniels normally hung out, he heard gunshots. One of the shots hit
his car, and he realized that he was being targeted. He quickly turned his
wheel to try to drive away, but ‘a bullet hit [him] in the back’ and made him
‘inadvertently . . . jerk the wheel,’ causing his car to crash into a house and
turning him perpendicular to the street. A bystander confirmed that he saw
Harbin’s car crash and get ‘ “lit . . . up.” ’
“Harbin tried to exit from the passenger’s side of his car, away from
where the gunshots were coming, but the door was blocked by the house’s
staircase. When he was unable to exit the car, he ‘pulled a gun out from [his]
hip and [he] fired through [his] car door’ toward ‘the direction of the bullet
that hit [him],’ but at a downward angle because his arm ‘locked up’ when he
tried to lift it. Harbin claimed that he shot in self-defense, explaining that he

9
could not see who was shooting but could hear the shots getting louder. He
testified, ‘[I]n my mind, they running up on my car and they about to finish
me off.’ He denied that he would have gone back to Third World had he
known he was in danger, saying, ‘These women were hanging with my
brother [McDaniels], they were hanging with my cousin. No[]where in my
mind was I thinking that they were going to try to have me murdered.’
“After Harbin emptied his gun, the gunshots continued. He looked
outside and saw McDaniels, who had positioned himself between Harbin and
the intersection of 30th and Chestnut. McDaniels was shooting a Glock with
an extended magazine toward the intersection, apparently in defense of
Harbin, and Harbin later concluded that the louder shots he had interpreted
to mean that someone was approaching his car were actually shot by
McDaniels. Harbin testified that he backed up his car and drove away as
McDaniels continued to shoot the Glock.
“G. Stills Gives a Rifle to McDaniels.
“The police interviewed Stills a few weeks after the murder, and
portions of his statement were played for the jury. He said that when
McDaniels first returned to 30th and Chestnut after the fight between the
women ‘and they was making phone calls,’ McDaniels told him there was a
rifle in the backseat of his car. At that point, Stills, who had a preexisting
injury to his arm, told McDaniels, ‘I only got one arm. Like, how am I gonna
shoot that mother[]fucker?’
“Later, during the shootout, Stills saw McDaniels shooting a Glock,
which jammed. After the Glock jammed, McDaniels asked Stills to ‘get his
rifle out his car,’ a white Mercedes-Benz, and Stills admitted that he ‘grabbed
[it] and . . . ran to Chestnut and . . . handed it to [McDaniels].’ Stills then
saw McDaniels point the rifle down Chestnut and shoot toward Ambrose.

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According to Stills, Ambrose was running the other direction while shooting
behind him, toward Stills and McDaniels.
...
“H. Pierce Is Killed and the Shooters Flee.
“A contractor who was working at Pierce’s house that day testified that
he saw Pierce arrive home in her car with her children. As she was parking,
he heard gunshots, and he dropped to the ground. A neighbor of Pierce’s
testified that after hearing several gunshots, she looked outside and observed
Pierce ‘yelling at her children to run.’ The neighbor then saw Pierce fall face-
first on the ground as she was following her children up the driveway. It was
later determined that Pierce died from a single gunshot to the head and neck.
“When the contractor looked outside, he saw a vehicle drive by and two
men, one bleeding from the chest, ‘chasing after the car.’ Similarly, Pierce’s
neighbor testified that after Pierce collapsed she saw two ‘[v]ery young’ males
run down the street with black pistols their hands. They ran toward a dark
blue Audi station wagon, where another man was ‘waving for them to hurry
and get in,’ and then all three left in the car.
“Another bystander who was around 28th and Chestnut testified that
she heard dozens of gunshots that sounded like ‘a wild west shootout.’ The
shots originally seemed like they were coming from about a block away but
then got closer. She looked out the window and saw a dark ‘newer model car
. . . [l]ike an Audi’ driving down Chestnut, away from 30th. Two men, one of
whom had been shot in the chest and was holding a handgun, were running
behind the car, which had another person ‘already kind of half-in/half-out of
the passenger seat.’ The bystander also saw a third man with dreadlocks
moving down the sidewalk while pointing a handgun in the direction the two
other men were running.

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 “A woman who lived at 30th and Chestnut testified that she heard
several gunshots and saw 10 to 15 men standing in the intersection, some of
whom were shooting down Chestnut. Three of the men who were shooting
had just come from the vicinity of a white Mercedes-Benz. After retreating
toward the back of her house, she looked outside again, and the same three
men still appeared to be shooting. According to her, one of them had a rifle,
one had a ‘larger handgun with [an] extended clip,’ and one had a ‘regular
handgun.’ She thought that the man holding the rifle had dreadlocks.
[Footnote omitted.] The men then drove away in a light-colored car.
“I. The Aftermath and the Physical Evidence.
“Harbin’s girlfriend testified that she returned to Third World with two
other women, intending ‘[t]o go fight the girls that jumped [her].’ As they
arrived, they ‘heard a lady was killed or unconscious,’ and they saw Pierce
lying on the ground. Harbin’s girlfriend walked up Chestnut and saw
Ambrose lying on the side of a house a few doors down from Pierce’s,
‘bleeding really bad.’ Harbin’s girlfriend had grown up with Ambrose and
characterized him as ‘like a little cousin to [her],’ and she was recorded
yelling at police officers to help him. Sims had been shot as well and also
eventually arrived at the hospital.
“Meanwhile, as Ward’s girlfriend’s cousins were trying to return to the
scene, they heard gunshots. They saw McDaniels and another person driving
away in Ward’s Acura, which the older cousin found ‘suspicious’ since Ward
had just bought it from her sister. Stills also told the police that after the
shooting was over, he saw McDaniels steal Ward’s car and leave the scene.
“Harbin, who was shot in the back, managed to return to his uncle’s
house, and his Buick was later towed from Mead. Its rear window had been
shot out from outside, and it had several holes and ricochet marks caused by

12
other shots fired from both inside and outside the vehicle. Consistent with
Harbin’s testimony that he had fired a .45-caliber handgun, a .45-caliber
shell casing was recovered from the floorboard behind the driver’s seat, and
another .45-caliber shell casing shot by the same gun was found underneath
the car. Harbin testified that the day after the murder he traded the gun he
had shot for a 9mm-caliber Taurus handgun, which he had when he was
arrested, and his .45-caliber gun was never recovered.
“The evidence showed that at least five different weapons in addition to
Harbin’s .45-caliber handgun were fired at the scene. First, a Springfield
Armory semiautomatic .45-caliber pistol, which had Sims’s blood on it, and
two boxes of .45-caliber ammunition were recovered from Reed’s sister’s
house. A cluster of five casings discharged by that gun were recovered near
30th and Chestnut.
“Second, a Bersa mini Firestorm .40-caliber pistol, which had
Ambrose’s blood on it, was recovered near the driveway where Ambrose was
found. Nine casings from the Firestorm were found at the scene.
“Third, a Glock .40-caliber pistol that fired 20 of the casings found at
the scene was recovered from the house of a second girlfriend of Harbin’s.
This girlfriend testified that four days after the murder, she found the gun
hidden in her reclining chair and placed it in a bag in the closet. The Glock
had DNA from three people on it, including Harbin. Implying that the Glock
belonged to McDaniels, Harbin testified that he handled the weapon when
hiding it at his girlfriend’s house but that it was not his.
“Fourth, four .223-caliber casings fired by the same gun were recovered
at the scene. A criminalist testified that an AR-15 assault rifle is the most
common type of gun used to shoot such cartridges. No AR-15 or other similar
gun was ever recovered, but boxes of .223-caliber ammunition were also

13
recovered from Harbin’s second girlfriend’s house. The girlfriend testified
that within a few days of the murder, Harbin and McDaniels arrived at her
house. They had a long, black gun on the backseat floor of their car, and she
refused to let Harbin bring it in the house. Harbin testified that he did not
know what ultimately happened to this weapon, which he did not know
McDaniels had until after the shooting.
“Finally, a single .38/.357-caliber bullet shot by an unrecovered firearm
was found a couple feet from Pierce’s head and had her DNA on it. The
criminalist testified that the bullet was of a caliber one “would normally
associate with a revolver,” a type of gun that does not expend casings. The
evidence tended to suggest, by process of elimination, that Davis fired this
gun.”
J. Procedural History.
Sims was charged with one count of murder with the accompanying
allegations that he personally used a firearm, personally and intentionally
discharged a firearm, and personally and intentionally discharged a firearm
causing death. 2 He was also charged with the attempted murder of Harbin
and one count of unlawful firearm activity. 3

The murder charge was brought under Penal Code section 187,
2

subdivision (a), and the firearm enhancements were alleged under Penal
Code sections 12022.5, subdivision (a), and 12022.53, subdivisions (b) and (g)
(personal use of firearm), section 12022.53, subdivision (c) (personal and
intentional discharge of firearm), and sections 12022.7, subdivision (a), and
12022.53, subdivision (d) (personal and intentional discharge causing death).
All further statutory references are to the Penal Code.
The attempted murder charge was brought under sections 187,
3

subdivision (a), and 664, with firearm enhancements alleged under the same
statutes as were those attached to the murder charge. The charge of
unlawful firearm activity was brought under section 29805, based on a 2014
conviction under section 25400 for carrying a concealed firearm.

14
 Before the presentation of evidence began, the trial court granted the
prosecution’s motion to dismiss the attempted murder charge, and the jury
was instructed not to decide that count. After the close of evidence, Sims
pleaded no contest to unlawful firearm activity. The jury then convicted him
of second degree murder and found true the firearm allegations.
At sentencing, the trial court granted the prosecution’s motion to strike
the firearm enhancements in the interest of justice. The court sentenced
Sims to 15 years to life in prison for murder and a concurrent term of two
years in prison for unlawful firearm activity. Among other monetary charges,
the court also imposed a $10,000 restitution fine and imposed and stayed a
$10,000 parole revocation restitution fine.
II.
DISCUSSION
A. Sims Forfeited His Claims of Prosecutorial Error, and He Fails to
Demonstrate that the Forfeitures Resulted from Ineffective
Assistance of Counsel.
Sims claims that various prosecutorial errors during closing argument
require reversal of the murder conviction. Specifically, he claims that the
prosecutor erred by (1) contrasting him and the other defendants on trial
with Reed and Ward; (2) using an improper hypothetical; and (3) making
arguments that reduced the burden of proof.
We conclude that Sims forfeited his claims by failing to object to the
prosecutor’s arguments on the grounds he now raises. In addition, Sims fails
to show that the omission of such objections constituted ineffective assistance
of counsel. Finally, to the extent he did preserve certain claims, he cannot
demonstrate prejudicial error. Accordingly, he is not entitled to relief.

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 1. Additional facts
Sims’s claims revolve around the prosecutor’s general theme that the
defendants on trial had a defense of “not our fault.” In his initial closing
argument, after discussing at length the defendants’ claims that they were
not to blame for Pierce’s death, the prosecutor summarized, “It’s none of their
fault. That’s what they’re asking you to find, ladies and gentlemen. They’re
asking you to find that none of them are responsible. None of them are
responsible for causing this shootout a block away from McClymonds High
School.” Sims’s trial counsel objected that “that’s not what I’m going to ask,”
and the trial court overruled the objection on the basis that “this is
argument.” Counsel insisted, “So he can’t tell them what I’m going to ask,”
and the court responded, “It’s argument, [counsel],” and told the prosecutor to
continue.
The prosecutor returned to this theme numerous times throughout
closing argument, including on rebuttal. For example, after discussing the
legal principles governing the case, he stated, “In lay terms, this is not a self-
defense case. It’s not. That’s what they’d have you believe, though, so that
none of them are responsible. Chyemil Pierce’s death? Oh, well.” Similarly,
in arguing that “responsibility attach[ed]” once the defendants began
preparing for the confrontation between the two groups, the prosecutor said,
“Getting your arsenal ready, making preparations. Right? You don’t get to
say it’s not my fault. Because in the end, no matter what fancy legalese is
used, that’s their defense boiled down to the basic premise: It’s not my fault.
Mr. Sims, ‘It’s not my fault she’s dead.’ Mr. Davis, ‘It’s not my fault she’s
dead.’ Mr. Harbin, ‘It[] ain’t my fault.’ Mr. Stills, ‘It ain’t my fault. I didn’t
even fire a gun.’ [¶] Again, no matter how fancy the words are, that’s the
defense. It’s not my fault.”

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 The prosecutor also contrasted Reed and Ward, who he argued had
accepted responsibility by entering pleas and were remorseful, to the
defendants standing trial. For example, the prosecutor argued:
“We know that Joneria Reed has pled guilty. We know she
pled guilty to a murder. The terms were very clear; right? And
she did it because there’s a benefit to her. There’s no getting
around that; right? She comes and tells the truth at this trial
and the next, and it gets reduced to six years on a manslaughter;
right?

“How is Ms. Reed different than the gentlemen here? Her
testimony is . . . I called men to come and defend my honor. I
didn’t tell them to shoot. I wouldn’t do that.

“You saw when she’s up there crying. She’s crying because
she feels bad about what happened. That’s how she’s different.

“But is she liable? Does she have responsibility? Yes. Has
she accepted responsibility? Yes. But it’s none of their fault.

“Dijon Ward, charged with [being] an accessory. He’s
resolved his case; all right? But again, ‘It’s not my fault.’ ”
The prosecutor also raised this contrast on rebuttal, arguing, “Joneria
Reed has accepted her responsibility. You’ve learned Dijon Ward has already
pled to [being] an accessory; he’s accepted his responsibility. [The] position
[of the defendants on trial] is we’re not responsible, which is what I told you
in the beginning of the case and in the beginning of arguments this case was
about. It’s not our fault.”
The prosecutor acknowledged at sentencing, however, that Sims “ha[d]
always expressed remorse for his role in this crime. [¶] He expressed remorse
expressly as well as implicitly when he wanted to resolve this case early on.
Unfortunately for Mr. Sims, given the status of the case and everyone’s
involvement, I indicated to him that I would not be able to allow him to

17
resolve his case, even though again he had expressed remorse from the
beginning.” Because Sims “never shot anyone and . . . wasn’t the one who
was responsible or directly responsible for Chyemil Pierce’s death,” the
prosecutor moved to strike the firearm enhancements in the interest of
justice under section 12022.53, subdivision (h). The trial court granted the
motion, stating, “I think it’s a magnanimous gesture on behalf of the People,”
which “effectively removed that 25-year-to-life sentence” that would have
otherwise been imposed under section 120225.3, subdivision (d), as well as
any shorter terms for the other enhancements.
Sims also objects to the prosecutor’s use of two hypotheticals during
closing argument. The first involved a scenario, which originally came up in
opening statements, in which three boys who have a preexisting conflict
prepare for and get into a snowball fight during which a car window is
broken. In his closing argument, the prosecutor returned to this scenario,
stating that he thought it was “a good example . . . because it allows you to
ask the question: When does responsibility begin; right? What is the tipping
point; right?” Acknowledging that “it’s a very simple analogy . . . [and] a little
bit playful,” the prosecutor argued that the defendants were in a similar
position to the boys because their stance was that “despite the preparation,
despite everything that came before, it’s none of their fault. None of them are
responsible.”
The prosecutor raised the second hypothetical on rebuttal, in response
to Davis’s counsel’s hypothetical involving shooting into a room full of people.
The prosecutor argued:
“Let’s assume that [Davis’s attorney] and I . . . are going to
have a shooting right here. We’re not friends. We have a strong
dislike. He stands that way. I stand here. And all of you are
present and we’re about to shoot. What are all of you gonna do?
Run, duck, hide.

18
 “Because is it foreseeable that one of you might get hit?
Absolutely. Absolutely. What about if we’re shooting at that
back corner? Is everybody gonna feel safe? Absolutely not.
Absolutely not. Is it foreseeable that an innocent person might
get hit when there’s a shootout? Oh, c’mon, the answer’s simple.
It’s yes.”
Returning to this hypothetical later, specifically in relation to Sims’s
arguments “about proximate cause and intervening superseding causes,” the
prosecutor said,
“[M]e and [Davis’s attorney] have a shootout in that corner.
I guarantee you guys aren’t going to be eating popcorn watching
because you’re going to know something—‘It’s time for us to go.’

“The only other way out of here is that door, which we
know is locked. That door, which you’re not going to go to
because we’re going to shoot out over there. So you’re going to all
[be] piling over here at this door.

“But [Davis’s attorney, Sims’s attorney, Harbin’s attorney,
and Stills’s attorney], their position is, if there’s a shootout right
there, it’s not foreseeable that any of you are going to get hit. If
we decide we’re going to show up and have a shootout, it’s not
foreseeable that poor citizens who are literally right across the
courtroom from us are going to get hit. That wouldn’t be our
fault. If we miss each other, oh, well. You should charge us with
trying to kill each other. Not with one of the jurors who may get
hit. It’s not our fault.”
Sims’s counsel objected that “[t]his [was] improper argument involving the
jury and setting up a situation in this courtroom,” and the trial court
overruled the objection.
2. General legal standards
Prosecutorial “error occurs, as a matter of state law, when a prosecutor
‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier
of fact to convict.’ [Citation.] Federal constitutional error occurs only when

19
the prosecutor’s actions ‘comprise a pattern of conduct that is serious and
egregious, such that the trial is rendered so unfair that the resulting
conviction violates the defendant’s right to due process of law.’ ” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) When a claim of
prosecutorial error “ ‘focuses upon comments made by the prosecutor before
the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey).)
“[T]o preserve a claim of prosecutorial misconduct for appeal, ‘ “ ‘a
criminal defendant must make a timely and specific objection and ask the
trial court to admonish the jury to disregard the impropriety.’ ” [Citation.]
The lack of a timely objection and request for admonition will be excused only
if either would have been futile or if an admonition would not have cured the
harm.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 942–943 (Hoyt).) The
requirement is meant to “ ‘ “ ‘encourage a defendant to bring errors to the
attention of the trial court, so that they may be corrected or avoided and a
fair trial had,’ ” ’ ” and it is “ ‘ “ ‘unfair to the trial judge and to the adverse
party to take advantage of an error on appeal when it could easily have been
corrected at the trial.’ ” ’ ” (People v. Forrest (2017) 7 Cal.App.5th 1074, 1081,
quoting People v. Saunders (1993) 5 Cal.4th 580, 590, italics omitted.)
“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.”
(People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) To prevail on a claim of
ineffective assistance of counsel, a defendant must show “that counsel’s
performance was deficient,” such that “counsel was not functioning as the
‘counsel’ [constitutionally] guaranteed,” and “that the deficient performance

20
prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687;
People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) Thus, a defendant
must demonstrate both that (1) “counsel’s performance . . . fell below an
objective standard of reasonableness under prevailing professional norms”
and (2) there was “a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different.”
(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.”
(Strickland, at p. 694.)
Generally, “in the heat of a trial, defense counsel is best able to
determine proper tactics in the light of the jury’s apparent reaction to the
proceedings. The choice of when to object is inherently a matter of trial
tactics not ordinarily reviewable on appeal.” (People v. Frierson (1991)
53 Cal.3d 730, 749.) In other words, because “[t]he appellate record . . .
rarely shows that the failure to object was the result of counsel’s
incompetence . . . , such claims are more appropriately litigated on habeas
corpus, which allows for an evidentiary hearing where the reasons for defense
counsel’s actions or omissions can be explored.” (Lopez, supra, 42 Cal.4th at
p. 966.) Thus, reversal on direct appeal for ineffective assistance of counsel is
warranted only if “(1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.” (Mai, supra, 57 Cal.4th at p. 1009.)
3. Contrasting the defendants on trial to Reed and Ward
Sims argues that the prosecutor erred in several respects by
contrasting him and the other defendants to Reed and Ward. First, Sims
complains that by doing so, the prosecutor improperly “argued an implication

21
he knew to be untrue,” that Sims had not expressed remorse or accepted
responsibility for Pierce’s death. (See People v. Bittaker (1989) 48 Cal.3d
1046, 1105 [error to lead jury to believe fact prosecutor knows is untrue].)
Second, Sims argues the line of argument “invited jurors to penalize [his]
reliance on his legal rights” by going to trial and electing not to testify. (See
Griffin v. California (1965) 380 U.S. 609, 615 [error for prosecutor to
comment on defendant’s decision not to testify]; United States v. Smith (11th
Cir. 1991) 934 F.2d 270, 275 [error for prosecutor to state that defendant
failed to take responsibility for his actions whereas his co-defendants entered
pleas].) Third, Sims argues that in comparing him to Reed and Ward, the
prosecutor improperly commented on facts not in evidence, including Sims’s
supposed lack of remorse. (See People v. Mendoza (2016) 62 Cal.4th 856, 906
[prosecutor cannot base argument on facts not in evidence]; People v. Boyette
(2002) 29 Cal.4th 381, 434 [generally error to comment on nontestifying
defendant’s courtroom demeanor].) And finally, Sims claims that the
prosecutor improperly implied that he was guilty by association with Reed
and Ward. (See Lopez, supra, 42 Cal.4th at p. 967 [error to invite finding of
guilt by association].)
We agree with the Attorney General that Sims forfeited his arguments
by failing to object on any of these grounds below. Sims contends that once
the trial court overruled his objection to the prosecutor’s claim that the
general defense was “not our fault,” any further objections would have been
futile. Although acknowledging that he “did not specifically object to the
prosecutor’s arguments regarding Reed’s and Ward’s acceptance of
responsibility,” Sims claims that “the error is preserved for review because it
[was] part and parcel” of the prosecutor’s more general theme about the
defendants’ position.

22
 Sims’s objection was merely that his defense was not “it’s not my fault,”
and there were no objections whatsoever to the prosecutor’s invocation of
Reed and Ward as contrasts to the defendants on trial. Thus, the issues Sims
now raises were not presented to the trial court. Moreover, he did not ask for
the jury to be admonished, and he does not claim on appeal that any of the
improper aspects of the prosecutor’s argument could not be cured by further
instruction. As a result, his claims are forfeited. (See Hoyt, supra, 8 Cal.5th
at pp. 942–943.) We disagree with Sims that the forfeiture question is “close
and difficult,” and we decline to exercise our discretion to consider his claims
on the merits.
Nor has Sims demonstrated that his trial counsel rendered ineffective
assistance by failing to object. Sims fails to grapple fully with the
requirement that where, as here, the record is silent about counsel’s reasons
for not objecting, a defendant must show “there simply could be no
satisfactory explanation.” (Mai, supra, 57 Cal.4th at p. 1009.) Sims cursorily
asserts, as to all the claims of prosecutorial error, that “[t]here can be no
tactical reason for counsel to fail to adequately object,” particularly given that
counsel did object to related issues twice, and that the failures here were “a
matter of competence, not tactics.” In his reply brief, Sims clarifies that
“[w]hile deciding whether to object may in some cases be tactical, the
adequacy of an objection is a matter of competence.”
Sims’s counsel’s objections to the characterization of the defendants’
general defense and the shootout hypothetical were not tied to any mentions
of Reed and Ward, however, and we thus cannot conclude that these
objections were merely inadequate attempts to challenge the comparison of
Sims to the defendants who entered pleas. And as the case law recognizes,
there are a variety of tactical reasons defense counsel may decide not to

23
object even if the objection has merit. (See, e.g., People v. Huggins (2006)
38 Cal.4th 175, 206 [rational not to object to avoid calling attention to
prosecutor’s remarks]; People v. Frierson, supra, 53 Cal.3d at p. 749 [rational
to counter prosecutor’s point with argument instead of objecting].) We also
note that none of the attorneys for the other defendants on trial objected to
the discussion of Reed and Ward, further suggesting that the omission was
within the range of competent representation. In short, Sims fails to
demonstrate that his counsel could have had no legitimate tactical reason for
not objecting to the prosecutor’s arguments involving Reed and Ward.
Moreover, even if Sims’s counsel should have objected to at least some
of these arguments (as the Attorney General apparently concedes), the
omission was harmless. The jury was instructed that it “must not be biased
against [a] defendant just because he has been arrested, charged with a
crime, or brought to trial,” and that “[a] defendant has an absolute
constitutional right not to testify.” Indeed, the jury was specifically warned
not to “consider, for any reason at all, the fact that defendants Sims, Stills,
and Davis did not testify.” The jury was also instructed that it must follow
the law as explained by the trial court, not counsel, and that counsel’s
remarks in closing arguments are not evidence. Sims does not challenge the
correctness of these or any of the other instructions given, including those on
what he characterizes as “[t]he only real questions before the jury”—whether
he fired in defense of himself or Ambrose and whether he proximately caused
Pierce’s death. Thus, even if the jury might have perceived the prosecutor’s
comments about Reed and Ward as an invitation to convict Sims on an
improper basis, the instructions adequately dispelled that risk. In sum, even
if Sims’s counsel’s performance had been deficient, there is no “reasonable
probability that . . . the outcome of the proceeding would have been different”

24
had counsel objected to the challenged remarks. (Mai, supra, 57 Cal.4th at
p. 1009.)
4. The shootout hypothetical
Sims also claims that the prosecutor’s shootout hypothetical was
improper because it “ ‘ “invite[d] an irrational, purely subjective response” ’ ”
by “[a]sking jurors to put themselves in the place of a victim.” (Quoting
People v. Redd (2010) 48 Cal.4th 691, 742.) He also objects that the
hypothetical “significantly strayed from the facts of the case” by involving a
closed courtroom from which there was no escape, thus “amplif[ying] the fear
jurors would feel.”
The parties dispute whether Sims preserved this claim. Although
acknowledging that Sims eventually objected to the hypothetical, the
Attorney General points out that the prosecutor started to develop it earlier
without objection. We need not resolve the issue because, even assuming
that the claim was preserved, it fails on the merits.
Sims complains that the hypothetical improperly invited the jurors to
put themselves in the place of a victim, citing several decisions in which such
rhetoric was deemed prosecutorial error. In those cases, however, the
prosecutors focused on the actual victims’ experiences, explicitly asking the
jurors to imagine themselves in the place of the victims (or, in one case, the
victim’s mother). (People v. Stansbury (1993) 4 Cal.4th 1017, 1057; People v.
Pensinger (1991) 52 Cal.3d 1210, 1250 [victim’s mother]; People v. Vance
(2010) 188 Cal.App.4th 1182, 1192; People v. Simington (1993)
19 Cal.App.4th 1374, 1378–1379.) As our colleagues in Division Two of this
court have explained, this “tactic of advocacy . . . [is] universally condemned
across the nation . . . because it is a blatant appeal to the jury’s natural
sympathy for the victim.” (Vance, at p. 1188.) Here, in contrast, the

25
hypothetical’s primary focus was foreseeability, not the experience of Pierce
(or any other bystander during the actual crime). Thus, the hypothetical is
not comparable to the direct appeals to jurors’ sympathy that are typically
disallowed. Given this distinction, we perceive no “ ‘reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.’ ” (Smithey, supra, 20 Cal.4th at p. 960.)
Even if the prosecutor’s use of this hypothetical was improper, it did not
cause prejudice to Sims. As the Attorney General suggests, the hypothetical
“did not compare in intensity and emotion” to victim-sympathy arguments
that have been held harmless in other cases, including in some of the
decisions Sims cites. (See, e.g., People v. Stansbury, supra, 4 Cal.4th at
p. 1057; People v. Fields (1983) 35 Cal.3d 329, 361–363; People v. Simington,
supra, 19 Cal.App.4th at pp. 1378–1379.) Further reducing any risk that the
jurors would respond emotionally, discussion of the hypothetical comprised a
small portion of the prosecutor’s closing arguments (see Stansbury, at
p. 1057), and the jury was instructed not to “let bias, sympathy, prejudice, or
public opinion influence [its] decision,” including any “bias for or against the
witnesses, attorneys, defendant[s] or alleged victims.” (See People v. Rich
(1988) 45 Cal.3d 1036, 1089–1090.) In short, we conclude there is no
reasonable likelihood that Sims would have obtained a more favorable result
had the prosecutor not used the shootout hypothetical. (See People v.
Daveggio and Michaud, supra, 4 Cal.5th at p. 854.)
5. The arguments purportedly reducing the burden of proof
Sims next contends that “[t]he prosecutor’s ‘it’s not my fault’ refrain”
and use of the snowball-fight and shootout hypotheticals “oversimplified and
trivialized” the issue whether his actions proximately caused Pierce to die
and reduced the burden of proof “by suggesting that acquittal was not

26
warranted unless the defendants were entirely blameless with respect to
[her] death.”
Sims objected to both the prosecutor’s first invocation of the “it’s not my
fault” defense and the shootout hypothetical, but he did not do so on the basis
that the prosecutor’s remarks effectively lessened the burden of proof. In
addition, he did not ask for the jury to be admonished, and he did not object
to the snowball-fight hypothetical at all. Nor does he argue that the
prosecutor’s alleged errors were such that they could not be cured by further
instruction. As a result, this claim is forfeited, and we decline to exercise our
discretion to review it on the merits. (See Hoyt, supra, 8 Cal.5th at pp. 942–
943.)
Sims’s claim that any forfeiture resulted from ineffective assistance of
counsel also fails. Again, Sims does not develop his brief assertion that any
reasonably competent attorney would have adequately objected to the
challenged arguments. He does cite Centeno, in which the Supreme Court
held that the defendant’s counsel was ineffective for failing to object when the
prosecutor purported to illustrate the reasonable-doubt standard by showing
a picture of California, describing witness statements about the state that
were partially inaccurate, and suggesting the jurors should look at the whole
of the evidence to reach a “ ‘reasonable’ ” determination. (Centeno, supra,
60 Cal.4th at pp. 665–666, 675–676.) The Court determined that the
hypothetical, which had nothing to do with the facts of the case and relied on
the jurors’ outside knowledge, was improper because it both oversimplified
the jury’s task and reduced the People’s burden of proof. (Id. at pp. 670–671.)
The Court concluded that counsel could have had no reasonable tactical
purpose for failing to object, because the error “[struck] at the most
fundamental issue in a criminal case”; the image of California was “too

27
powerful and pivotal to address as irrelevant or trivial argument”; and the
prosecutor presented it in rebuttal, meaning defense counsel had no
opportunity to respond to it. (Id. at pp. 675–676.)
The Centeno hypothetical is not analogous to the comments at issue
here, which did not explicitly address the burden of proof. As to the “it’s not
my fault” line of argument, that was essentially what Sims’s defense was: He
should not be held legally responsible for Pierce’s murder because he did not
proximately cause her death (or, if he did, he shot in defense of himself or
Ambrose). We agree with Sims that an acquittal is not equivalent to a
finding of innocence, meaning that the jury could decide to acquit even if it
believed he bore some moral responsibility for Pierce’s death. (See People v.
Lloyd (2015) 236 Cal.App.4th 49, 62–63.) But the prosecutor’s
characterization of the defense did not misstate the law on this point or any
other point related to the burden of proof. (Cf. id. at p. 62 [prosecutor erred
by equating a finding of self-defense to a determination “ ‘the defendant’s
conduct was absolutely acceptable’ ” and stating that “ ‘not guilty . . . means
you didn’t commit a crime’ ”].) As such, Sims’s counsel could have reasonably
decided not to continue objecting after his initial objection was overruled,
especially because he had the opportunity to respond to the prosecutor’s
characterization of Sims’s defense in his own closing argument. (Cf. Centeno,
supra, 60 Cal.4th at pp. 675–676.)
The snowball-fight and shootout hypotheticals also did not incorporate
misstatements of the law. In addition, unlike the hypothetical in Centeno,
they were related to the facts of the case. True, as the prosecutor himself
recognized, the snowball-fight hypothetical could be seen as somewhat trivial
compared to the actual facts, and the shootout hypothetical also did not
perfectly line up with those facts. We also agree with Sims that the

28
prosecutor made some statements that tended to oversimplify the jury’s task,
including by repeatedly dismissing the concept of proximate cause as
“legalese.” But such comments pale in comparison to explicit
mischaracterizations of the reasonable-doubt standard, and we therefore
cannot say that Sims’s counsel could have had no tactical reason for failing to
object to them. Counsel had the opportunity to respond to the prosecutor’s
downplaying of proximate cause in his own closing argument, and he could
have reasonably elected not to challenge the hypotheticals more vigorously
because they did not clearly reduce the People’s burden of proof.
Finally, even if Sims’s trial counsel should have objected to the
prosecutor’s characterization of Sims’s defense, the hypotheticals, or related
statements because there was some danger they would lead the jury to
approach its task less rigorously, we conclude that the omission was
harmless. Again, the jury was instructed to follow the law as explained by
the trial court, not counsel, and that counsel’s remarks in closing arguments
are not evidence. The jury was given CALCRIM No. 240 on causation,
CALCRIM No. 620 on causation in homicide cases, and a special instruction
on proximate cause, the correctness of which Sims does not challenge. Sims’s
counsel addressed the issue of causation at length in his closing argument,
including urging the jury to reject the prosecutor’s “ ‘Snowballs-R-Us’
approach to this case, which is if you throw a snowball, you’re all guilty for
whatever happens thereafter.” Thus, the instructions and Sims’s argument
conveyed that the causation issue was more complicated than the prosecutor
portrayed it. Indeed, during deliberations the jury sought clarification of the
proximate-cause instruction, suggesting it took the issue seriously.
As for the reasonable-doubt standard more generally, there is no
dispute that the jury was properly instructed on it. Sims’s counsel also

29
explained the standard in closing, emphasizing the prosecution’s burden in
that regard. In fact, counsel specifically informed the jury that an acquittal
“only means the prosecutor hasn’t proven the charge. That doesn’t mean that
[Sims is] not guilty.” Moreover, although counsel argued the causation issue
to the jury, his primary strategy was apparently to seek a verdict of
voluntary manslaughter on the grounds that if Sims fired shots that
proximately caused Pierce’s death, he did so when trying to defend himself or
Ambrose. At the beginning of his argument, counsel stated, “I don’t think
[Sims] necessarily ought to be acquitted,” and at the end, counsel concluded,
“I submit to you on that on the evidence of this case, you should find Mr.
Sims guilty of nothing more than manslaughter and to do so will be justice.”
Thus, counsel’s own message suggested acquittal was not the appropriate
verdict, further reducing the likelihood that the prosecutor’s comments—
including the hypotheticals that did not even bear on the self-defense issue—
led to a harsher verdict than the jury would have otherwise reached. As a
result, there is no reasonable likelihood that Sims would have obtained a
more favorable result had counsel more fully objected to the challenged
remarks. (Mai, supra, 57 Cal.4th at p. 1009.)
6. Cumulative error
Finally, we reject Sims’s claim that reversal is required because the
alleged prosecutorial errors were cumulatively prejudicial. Since we have
concluded he forfeited all but one of his claims of prosecutorial error, and the
remaining alleged error was harmless, the relevant question is whether there
is a reasonable probability that, if not for the cumulative effect of his trial
counsel’s failures to object, he would have received a more favorable verdict.
(See Smithey, supra, 20 Cal.4th at p. 1017.) As we have discussed, as to each
claim “either counsel’s performance was not deficient, because there was no

30
error, or [Sims] has failed to establish that he was prejudiced by any
deficiency.” (Ibid.) As a result, reversal of the murder conviction for
prosecutorial error or ineffective assistance of counsel is unwarranted.
B. Sims Cannot Demonstrate that His Counsel Rendered Ineffective
Assistance by Failing to Request an Ability-to-pay Hearing.
Sims also claims that his trial counsel rendered ineffective assistance
by not asking the trial court to hold an ability-to-pay hearing before it
imposed two $10,000 restitution fines. We reject this claim.
“In every case where a person is convicted of a crime, the court shall
impose a separate and additional restitution fine, unless it finds compelling
and extraordinary reasons for not doing so and states those reasons on the
record.” (§ 1202.4, subd. (b).) Under subdivision (b)(1) of section 1202.4,
“[t]he restitution fine shall be set at the discretion of the court and
commensurate with the seriousness of the offense. If the person is convicted
of a felony, the fine shall not be less than three hundred dollars ($300) and
not more than ten thousand dollars ($10,000).” Although “[a] defendant’s
inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine,” it “may be considered . . . in
increasing the amount of the restitution fine in excess of the minimum fine.”
(§ 1202.4, subd. (c).) In the case of defendants, like Sims, whose sentences
include a period of parole, a parole revocation restitution fine “in the same
amount as that imposed pursuant to subdivision (b) of Section 1202.4” must
also be imposed. (§ 1202.45, subd. (a).)
At sentencing, the trial court imposed a restitution fine of $10,000
under section 1202.4, subdivision (b), and imposed and suspended a parole
revocation restitution fine of $10,000 under section 1202.45, subdivision (a).
It also imposed an order of $9,180.01 in direct victim restitution, which was
“joint and several with the co-defendants Mr. Harbin, Mr. Stills, Mr. Davis,

31
Mr. Ward[,] and Ms. Reed.” Sims did not object to the imposition of the fines.
In addition, he declined when asked whether he wanted a hearing on the
amount of the direct restitution award.
As we have said, to prevail on a claim of ineffective assistance of
counsel, a defendant must show both that “counsel’s performance was
deficient, in that it fell below an objective standard of reasonableness under
prevailing norms” and that there was “resulting prejudice, i.e., a reasonable
probability that, but for counsel’s deficient performance, the outcome of the
proceeding would have been different.” (Mai, supra, 57 Cal.4th at p. 1009.)
On direct appeal, we reverse only if “(1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.” (Ibid.)
Sims argues that there could have been no “reasonable basis” for his
counsel’s failure to object to the $10,000 fines and requesting an ability-to-
pay hearing, because “[t]he record in this case makes clear that [he] lacks the
ability to pay.” Sims points out that the probation report stated he was
unemployed, had never been “formally employed,” had no assets, and had
received Supplemental Security Income as a minor, as well as “general
assistance benefits for a short period.” In addition, he says that “[f]or the
foreseeable future, [his] only possible source of income [will] be prison wages,”
which amount to $12 to $56 per month. Given his responsibility for paying
the direct victim restitution award as well, he argues that it is “unclear
when, if ever, [he] would be able to begin payment of the $10,000 restitution
fine [under section 1202.4, subdivision (b)], let alone when he would be able
to pay it off.”

32
 On this record, Sims cannot demonstrate that his trial counsel’s
performance was deficient. It is possible that there was no objection to the
amount of the restitution fine because counsel knew Sims could, in fact,
afford it. This possibility alone defeats his claim. In addition, even if Sims
was unable to pay $10,000, his counsel could have rationally decided not to
object. Ability to pay is merely one factor the trial court “may” consider in
setting the amount of the restitution fine (§ 1202.4, subd. (c)), and the fact
that a prisoner might have serious difficulty ever paying it does not preclude
imposition of the maximum amount where, for example, the crime is
especially serious. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505.)
As discussed above, Sims received favorable sentencing treatment because he
took responsibility for his role in Pierce’s murder. Especially since he
declined to challenge the amount of direct victim restitution, it could have
been a rational tactical choice to accept the maximum restitution fine to
further acknowledge the gravity of the offense.
III.
DISPOSITION
The judgment is affirmed.

33
 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Banke, J.

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Sanchez, J.

People v. Sims A155339

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