People v. Pallan CA2/3

Filed 9/21/20 P. v. Pallan CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B282709

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA136537
v.

RICHARD PALLAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Roger Ito, Judge. Judgment of conviction
affirmed and remanded for further proceedings.
Danalynn Pritz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, David E. Madeo and Daniel C.
Chang, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
 A jury convicted Richard Pallan of the first degree murder
of Jessica Gomez, and found true that Pallan discharged the
firearm that killed her. He appeals, arguing his trial counsel
was ineffective. We affirm his conviction and remand for
resentencing in light of Senate Bill No. 620 and Senate Bill
No. 1393.
BACKGROUND
An information charged Pallan and Cecilia Gallegos
murdered Jessica Gomez on or about June 26, 2013, and alleged
Pallan personally and intentionally discharged the firearm that
killed Gomez. (Pen. Code,1 §§ 187, subd. (a), 12022.53, subds. (b)-
(e).) The information also charged Billy Juarez was an accessory
after the fact (§ 32), and alleged both crimes had been committed
for the benefit of a criminal street gang. (§ 186.22(b)(1)(C).)
The information alleged Pallan and Juarez had prior convictions
of serious and/or violent felonies. (§§ 667, subd. (d), 1170.12,
subd. (b).)
Before jury selection, the trial court dismissed the gang
allegation for insufficient evidence. The court allowed gang
evidence for limited purposes.
1. Gallegos’s testimony
Gallegos testified Juarez was her ex-boyfriend and a
member of Pico Nuevo, a gang from Pico Rivera. Two weeks
before the shooting, Juarez (called “Ghost”) introduced her to
Pallan (called “Johnny” and “Gook”) and told her Pallan also
was a Pico Nuevo. On June 26, 2013, Juarez and Pallan were
at Gallegos’s mother’s house in Pico Rivera. They seemed
antsy, and Gallegos was unsure what was going on. At about

1 All subsequent statutory references are to the Penal Code
unless otherwise indicated.

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11:00 p.m., they asked her for a ride to a liquor store in Whittier.
Gallegos drove them in her white Dodge Magnum, with Pallan
in the front passenger seat and Juarez in the back seat. Pallan
was texting on his cellphone. She dropped Juarez off at a
residential intersection near Gomez’s house. Juarez was close
to Gomez and called her his cousin.
Gallegos was nervous because it was the first time she
had been alone with Pallan. She made a detour, drove around
the corner and into a dead end, and stopped the car. She saw in
Pallan’s pocket what she later realized was a gun, the kind with
a barrel that spins around. He was looking around nervously
and checking the rearview mirror. When Pallan told her to turn
around to pick up Juarez, Gallegos made a U-turn and began to
drive back. Her anxiety increased as they got closer. Gallegos
told Pallan she wanted to leave, noticing an “evil” look on his
face.
When Gallegos saw Juarez walking with Gomez, she
“pulled over and [Juarez] was supposed to get back in the car.”
Pallan got out of the car, Juarez got into the back seat, and she
heard shots fired at Gomez.
Scared, Gallegos turned away and closed her eyes. Pallan
got back into the car. Gallegos drove away, asking: “ ‘What the
fuck is going on?’ ” Juarez, seeming unsurprised by the shooting,
told her to calm down. Pallan gave her directions to drive to
the 605 North. Once on the freeway, Pallan pointed the gun
at her and asked: “ ‘Is this bitch going to fucking say anything?’ ”
They ended up at a house Gallegos had never been to
before. Pallan and Juarez went inside, and she waited in the
back yard. Within a couple of minutes she learned Gomez was
dead. Later, Pallan and Juarez came outside, and she overheard

3
Pallan say: “[O]nce he seen [Gomez] and [Juarez] come around
the corner, he already knew it was all over.” Juarez responded:
“It wasn’t supposed to go down like that,” and Pallan replied:
“He had to do what he had to do.” Pallan pulled out the gun
again, and asked Juarez whether Gallegos would say anything.
She thought she would be the next to die.
Gallegos drove Juarez to his sister-in-law’s house. She
never spoke to Pallan again. Her relationship with Juarez ended
a month later, and she had not seen or spoken to him since.
When a detective interviewed Gallegos about a year after
the shooting, she lied because she was scared: “I just didn’t want
things to happen to me or to my family. So I was just going to
keep my mouth shut and not say anything.” She worried about
“the whole street mentality of the street gang,” and her life
experiences taught her snitching was bad: “Whatever you see
you don’t say nothing.” The next day two detectives came to
interview her and told her she was being charged with a crime.
She still did not tell them what she knew. Eventually she gave
statements about what happened in a recorded interview with
her attorney present: “I’m not going to go down for something
I didn’t do and I figured if nobody was going to come forward
and say something then for me to be able to save my own life
I have to.” Gallegos had been in custody ever since. After she
was charged with first degree murder, she agreed to testify
truthfully in exchange for a seven-year state prison sentence.
After Gomez’s murder, “local girls that knew me in County”
had threatened Gallegos, and she feared retaliation for her
testimony. When she was arrested, she was carrying a gun
for protection. People had tried to blame her for Gomez’s death,
but she could not remember who.

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2. Juarez’s testimony
Juarez testified under subpoena, and had been granted
use immunity. He and Pallan were members of the Pico Nuevo
Gang. Juarez grew up with Gomez and called her “cousin.” He
and Gomez were in constant communication around the time
she died. Six days before Gomez was shot, someone she knew
from Dead End, a rival gang, shot Pallan’s cousin Chino, another
Pico Nuevo member.
Juarez had a sexual relationship with Gallegos. He was
in the back seat of her car and Pallan was in the front passenger
seat the night Gomez was killed. Pallan kept saying he was
upset that a Dead End member related to Gomez had shot
Pallan’s cousin. Gallegos dropped Juarez off at Gomez’s house,
and she and Pallan drove away. As Juarez and Gomez walked
on the sidewalk on the way to a liquor store, Gallegos pulled up
in the car. Juarez went over to see what she wanted, thinking
Pallan had been dropped off somewhere. Then Juarez heard
gunshots, but he did not see the shooting. He would not testify
that Pallan shot Gomez, and he did not remember telling the
detectives that Pallan was the shooter. He did not know Pallan
was going to shoot Gomez.
On cross-examination, Juarez explained it was “rumor
on the street” that a Dead End member connected to Gomez shot
Pallan’s cousin. Juarez had been at Pallan’s house when Pallan
found out that his cousin had been shot. Pallan got upset, but
he never said he was going to get back at Gomez. Juarez thought
Pallan had a gun but didn’t know for sure. He was good friends
with Gomez and sometimes she got drugs for him. After the
shooting, Gallegos dropped Juarez off at a gas station by the
freeway.

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3. Xavier P.’s testimony
At around 9:30 p.m. on the night Gomez was shot, then-
12-year-old Xavier P. was riding a scooter to his friend’s house.
He cut between a man and a woman walking on the sidewalk.
He was unlatching his friend’s gate, with the man and woman
only a couple of feet behind, when a white Dodge Magnum pulled
up. A man jumped out of the front passenger side of the car and
pulled out a shiny revolver, and Xavier P. heard shots. The man
who had been walking with the woman jumped into the back
seat, the shooter jumped into the front seat, and the car took off.
The woman was lying in her blood. He had seen her around
the neighborhood. He did not get a look at the driver of the car,
and did not recognize anyone in court from that night.
4. Pallan’s interviews
When the detectives interviewed Pallan on August 21,
2014, he said he did not know Gomez well, hadn’t talked to her
in years, and heard she had been killed about a week after it
happened. He was not in Pico Rivera around the time of the
shooting, knew nobody who owned a white Dodge Magnum,
and hadn’t heard anything about why she was killed. Gomez
knew his cousin Chino, who had been shot. Pallan did not know
who shot Chino.
In a second interview the next day, the detectives
confronted Pallan with his cellphone records showing contacts
with Gomez’s cellphone just before and on the day of the murder.
He responded that maybe he was talking to someone else using
her phone, and even if he had talked to Gomez, he was at home
in Victorville. Told that his phone records showed he was in Pico
Rivera, he said maybe he was there the day before the shooting,
but he couldn’t remember.

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5. Forensic evidence
Deputies responding to the crime scene found Gomez’s
body lying on a driveway next to a black cellphone. A bullet
and a bullet fragment were on the ground by a nearby gate.
The bullets had been fired by a .38 special or a .357 magnum,
guns with revolving barrels. The same gun had fired bullets
recovered by the coroner from Gomez’s body.
Gallegos’s car was impounded and processed for gunshot
residue and fingerprints about two weeks after the shooting.
Gunshot residue (which can be transferred from a hand to
a surface) was detected on the interior front door. Juarez’s
fingerprints were inside the car, but Pallan’s and Gallegos’s
were not.
Cellphone evidence extracted from Gomez’s phone showed
many calls back and forth between Gomez, Pallan, and Juarez
in the four days leading up to the shooting on June 26, 2013.
Pallan’s cellphone had called Juarez’s cellphone at 9:12 p.m.
the night Gomez was shot, using the cellular tower closest to
the shooting scene. At 9:16 p.m. and at 9:25 p.m., both men’s
cellphones used the same tower. At 9:30 p.m., Pallan’s phone
made a call using a tower near the 605 Freeway, showing that
between 9:25 and 9:30 p.m. Pallan’s phone moved north and
away from the crime scene.
The autopsy showed Gomez had seven gunshot wounds.
The two fatal wounds were to the back of Gomez’s left shoulder
and to her left back. The other wounds were to her right
shoulder, her buttocks, her right hand, and her left wrist.
The wounds were consistent with a victim who sees a gun,
puts her hands up, turns around to flee, and is shot in the back.

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Bullets recovered during the autopsy had been shot from the
same gun as the bullets found at the scene.
6. Verdict and sentence
The jury convicted Pallan of first degree murder and found
true he personally used a firearm. The trial court found Pallan’s
prior conviction true, and sentenced him to 80 years to life in
prison (25 years to life for murder, doubled by his prior strike
to 50 years, plus a consecutive term of 25 years to life for the
firearm enhancement, plus a consecutive term of five years for
the prior serious felony conviction enhancement). Pallan was
ordered to pay fines and fees totaling $370. He filed a timely
notice of appeal.
DISCUSSION
Pallan argues his counsel was ineffective when she failed
to object to evidence of third-party threats and to prosecutorial
misconduct. We conclude Pallan has not shown his counsel was
ineffective, and we remand for resentencing.
1. Counsel was not ineffective for failing to object to
evidence of third-party threats against Gallegos
During jury selection and after the dismissal of the gang
enhancement allegation, the prosecution argued gang evidence
was nevertheless admissible to show motive. Juarez would
testify that a few weeks before Gomez was murdered, her cousin,
a member of a rival gang, shot Pallan’s cousin. The court
reserved a ruling.
Just after the jury was selected, the prosecutor explained
he planned to call Gallegos, and the gang context was
“interwoven” in her interviews with the detectives. Gallegos
knew Pallan and Juarez were members of Pico Nuevo. She lied
to the detectives at first, saying she was not at the shooting.

8
Later, she admitted she was afraid for her life and for her
family’s life, because Pallan and another Pico Nuevo had
threatened her. This would help the jury evaluate Gallegos’s
credibility. Gallegos also would testify she was at Pallan’s house
when he learned Gomez’s cousin, a rival gang member, had shot
his cousin Chino. The court admitted the gang evidence for
the limited purpose of explaining Gallegos’s initial lack of
cooperation, her relationship with Pallan and Juarez, and
Pallan’s motive to shoot Gomez.
Gallegos testified she was frightened after the shooting
when Pallan asked her if she was going to say anything while
pointing the gun at her, “[b]ecause I thought I was going to be
the next one. I was going to die.” She admitted that in her first
two interviews she lied to the detectives because she was afraid
for herself and her family, given the gang mentality and the
dangers of “snitching.” In her third interview, after she entered
her plea, she had told the truth.
After describing the route she drove on the night of the
shooting, Gallegos testified that Juarez was a Pico Nuevo, and
she believed Pallan was too. She then described dropping Juarez
off, driving away and returning, Pallan getting out of the car
to shoot Gomez, and Pallan’s subsequent threats if she said
anything. She admitted she lied during her first two interviews,
and the prosecutor continued:
“Q. Now, since that incident the murder or
since [Gomez] was killed, has anyone
threatened you?”
“A. Yes.”
“Q. Who?”

9
 “A. Just the local girls that knew me in
County.”
“Q. Now, as you sit here today, are you
concerned about your safety?”
“A. Yes.”
“Q. Why?”
“A. Because I’m testifying.”
“Q. Now, with regards to what you are
saying, I need to understand what is your
relationship with [Juarez] right now?”
Gallegos responded she had not spoken to Juarez since
their relationship ended a month after the shooting, and this
exchange followed:
“Q. Now, with regards to your concern for
safety or who are you, or what are you
concerned about?”
“A. Just retaliation for me testifying.”
On cross examination, Pallan’s counsel asked Gallegos
about her plea agreement and her low seven-year sentence.
Gallegos admitted the first interview followed her arrest for
possession of a gun and methamphetamine, and again admitted
she lied in the first two interviews. Defense counsel grilled
Gallegos about inconsistencies between her testimony and the
third interview, including regarding Pallan’s gang membership
and whether she saw a gun on the day of the shooting.
On redirect, Gallegos repeated her testimony that Pallan
drew a gun on her twice on the day of the shooting, once in the
car driving away on the freeway and once at the house when they
arrived. She testified Pallan asked Juarez, “ ‘Is this bitch going
to fucking say anything?’ ”—the first time he pointed the gun

10
at her—and, she could not remember the exact words he used
the second time. After additional questioning about Pallan’s
statement that he knew it was all over when he saw Gomez
and Juarez coming around the corner, and that he did what
he had to do, the prosecutor continued:
“Q. When you were arrested [defense]
counsel had asked whether you were
arrested with guns and drugs. How
many guns are we talking about?”
“A. One.”
“Q. Were you alone or with others?”
“A. With others.”
“Q. Who were those individuals?”
“A. Davon.”
“Q. The gun was it on your person when you
were arrested?”
“A. Yes.”
“Q. Why did you have it?”
“A. For protection.”
“Q. From what?”
“A. From anybody trying to harm me.”
“Q. Was it after this murder?”
“A. Yes.”
“Q. Is that when you got a gun?”
“A. Yes.”
“Q. Protection from whom?”
“A. Just anybody.”
“Q. At any point did you receive any
threats?”
“A. Yes.”

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 “Q. From whom?”
“A. I don’t quite remember who. But just
people trying to blame me for what
happened.”
“Q. What do you mean?”
“A. For the killing of [Gomez].”
“Q. Is that why you felt you had to protect
yourself?”
“A. Yes.
On recross examination, defense counsel asked:
“Q. Miss Gallegos, you indicated that you had
been getting threats after [Gomez] was
killed, correct?”
“A. Yes.”
“Q. And those are threats from people who
were upset that they thought you were
part of the homicide, correct?”
“A. Yes.”
In closing, the prosecutor did not mention the third-party
threats. Defense counsel argued Gallegos was a liar who couldn’t
get her stories straight, and she shaped her testimony to protect
her plea agreement. Counsel mentioned the “insinuation”
that Gallegos “was getting threatened as a result of people who
thought she had something to do with the shooting,” and argued
“now we know she did.” Counsel reminded the jury it could
disbelieve all her testimony given her deliberate lies in the first
interviews (“Cecelia Gallegos . . . has been shown to be a liar
based on her multiple statements.”). In rebuttal, the prosecutor
defended Gallegos’s credibility without mentioning the threats.

12
 Pallan argues his counsel was ineffective when he failed
to object to Gallegos’s testimony that she had been threatened
by third parties, because the jury would have attributed the
third-party threats to Pallan. We disagree that counsel was
ineffective because he did not object.
Pallan has a state and federal constitutional right to
the effective assistance of counsel. To show that he did not
receive that assistance, he must establish by a preponderance
of the evidence that his counsel’s representation was objectively
unreasonable, and that it is reasonably probable that the
outcome of his trial would have been different but for counsel’s
error. (People v. Mai (2013) 57 Cal.4th 986, 1009.) We defer to
counsel’s reasonable tactical decisions, and we presume counsel
acted within the wide range of reasonable assistance. “It is
particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for
ineffective assistance only if (1) the record discloses counsel had
no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and filed to provide one, or
(3) there simply could be no satisfactory explanation. All other
claims of ineffective assistance are more appropriately resolved
in a habeas corpus proceeding.” (Ibid.)
Pallan argues his counsel was ineffective when he failed
to object to Gallegos’s testimony that “local girls that knew me
in County” had threatened her after the murder, and she feared
retaliation for testifying; that she lied in her first two interviews
because she did not want anything to happen, given the street
gang attitude toward “snitching”; and that she felt she needed
the gun she had on her when arrested because she had received
threats from “people” blaming her for Gomez’s murder. He

13
claims the third-party threat evidence prejudiced him by showing
his consciousness of guilt.
“ ‘[D]eciding whether to object is inherently tactical, and
the failure to object will rarely establish ineffective assistance.’ ”
(People v. Carrasco (2014) 59 Cal.4th 924, 985.) This is not one
of those rare occasions.
Evidence Code section 780 (as the jury was instructed in
this case) allows the finder of fact to “consider in determining
the credibility of a witness any matter that has any tendency in
reason to prove or disprove the truthfulness of [her] testimony,”
including the existence of any bias or interest, or the witness’s
attitude toward the giving of testimony. (Evid. Code, § 780,
subds. (f) & (j).) Evidence that a witness is afraid to testify,
or fears retaliation for testifying, is relevant to her credibility
and admissible by the trial court. (People v. Mendoza (2011)
52 Cal.4th 1056, 1084.) “[E]vidence of . . . a ‘third party’ threat
may bear on the credibility of the witness, whether or not the
threat is directly linked to the defendant.” (Ibid.) Where an
eyewitness to a gang shooting testified he left the crime scene
and did not voluntarily give information to the police because
he did not want anything to happen to his house or family, and
described a threatening phone call a few days later and “rata”
(Spanish for “rat”) spray-painted on his driveway, that evidence
was properly admitted. (Ibid.) That the witness testifies in
spite of fear of recrimination is important to fully evaluating
her credibility, and “ ‘it matters not the source of the threat.’ ”
(Id. at pp. 1084-1085.) “[A] trial court has discretion, within
the limits of Evidence Code section 352, to permit the prosecution
to introduce evidence supporting a witness’s credibility on direct
examination, particularly when the prosecution reasonably

14
anticipates a defense attack on the credibility of that witness.”
(Id. at p. 1085.)
Gallegos was the prosecution’s key witness, and the
credibility of her testimony that Pallan shot Gomez was essential
to establishing that he murdered Gomez and personally used
a firearm. The defense strategy was to use Gallegos’s false
statements in her first two interviews to attack the credibility of
her statements in her third interview and her testimony at trial.
The third-party threat evidence was admissible and highly
probative on Gallegos’s credibility when she testified at trial
despite fear of recrimination. (People v. Mendoza, supra, 52
Cal.4th at pp. 1084-1085.) No evidence connected Pallan to
the third-party threats, so his counsel reasonably did not object
that they implied Pallan’s consciousness of guilt. “Where a sound
legal basis exists for the admission of evidence, an attorney is
not ineffective for failing to object to its introduction.” (People v.
Seumanu (2015) 61 Cal.4th 1293, 1313.) Any weighing under
Evidence Code section 352 would have found the third-party
threats more probative than prejudicial.
Objecting also would have drawn the jury’s attention to
Gallegos’s brief references to “local girls that knew me in County”
and “people” who made her feel afraid to testify, giving counsel
an additional tactical reason not to make a futile objection.
“[C]ounsel may have desired not to highlight the evidence by
making an objection.” (People v. Seumanu, supra, 61 Cal.4th
at p. 1313.) The prosecutor did not follow up on Gallegos’s
testimony about the third-party threats or argue the threats
were connected to Pallan. Defense counsel could reasonably
have concluded an objection was not necessary and would not
have been in Pallan’s best interests.

15
 We also see no prejudice. First, any objection would
have been overruled given the admissibility of the evidence
on credibility grounds and the lack of any evidence connecting
Pallan to the threats. Second, the evidence of Pallan’s guilt
was strong. Gallegos’s testimony established a motive for the
shooting and identified Pallan as the shooter. Pallan’s direct
threats against Gallegos showed his consciousness of guilt.
Defense counsel attacked Gallegos’s credibility, but the jury
believed her. It is not reasonably probable the verdict would
have been different if counsel had objected to the brief testimony
about third-party threats.
Pallan also argues his counsel was ineffective because she
did not request a limiting instruction specifically telling the jury
to consider the third-party threat evidence only to determine
Gallegos’s credibility. Whether to ask for a limiting instruction
is a tactical decision left to defense counsel, where (as here)
a reasonable attorney may conclude that giving a limiting
instruction specifically focusing on the evidence of third-party
threats would suggest to the jury that the evidence was relatively
strong, outweighing the questionable benefits of the instruction.
(People v. Griggs (2003) 110 Cal.App.4th 1137, 1141; People v.
Maury (2003) 30 Cal.4th 342, 394.) The court instructed the
jury to consider evidence of gang activity only to decide whether
Pallan had a motive for shooting Gomez, or to explain the
witness’s lack of cooperation and reluctance to testify. Counsel’s
decision not to request a more specific limiting instruction was
a reasonable tactical choice. Given the absence of any evidence
tying Pallan to the third-party threats, no prejudice resulted.

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2. Counsel was not ineffective in failing to object
to statements by the prosecutor
Pallan points to several instances of what he labels
prosecutorial misconduct. Because he failed to object and
does not argue an objection would have been futile or a judicial
admonition would not have cured any error, he has forfeited
a claim of prosecutorial misconduct. (People v. Fernandez (2013)
216 Cal.App.4th 540, 561.) Pallan recognizes this and contends
his counsel was ineffective when she did not object. (People v.
Woodruff (2018) 5 Cal.5th 697, 780.) “The appellate record,
however, rarely shows that the failure to object was the result
of counsel’s incompetence; generally, 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.” (People v. Lopez (2008)
42 Cal.4th 960, 966.) We address the merits of his claims of
misconduct only to the extent necessary to decide his claim
that his counsel was ineffective in failing to object. (People v.
Ochoa (1998) 19 Cal.4th 353, 431.)
a. Eliciting inadmissible testimony of third-party threats
Pallan argues the prosecutor committed misconduct
because he knew about the third-party threats against Gallegos,
did not inform the court, and then used leading questions to elicit
her “inadmissible” testimony that unnamed people other than
Pallan threatened her after Gomez’s murder.
First, the record on direct appeal does not show that
the prosecutor knew about third-party threats and hid this
knowledge from the court. In the conversation about the
admission of gang evidence, the prosecutor told the court that
Pallan and another Pico Nuevo had threatened Gallegos, and

17
her testimony about the threats would help the jury decide
whether she was credible. The prosecutor advised the court there
might be threats by a third party (another Pico Nuevo member).
Nothing in the record shows he knew of other third-party threats
and concealed that knowledge.
Second, the transcript does not show improper leading
questions by the prosecutor. A leading question is one that
suggests to the witness the answer examining counsel desires.
(Evid. Code, § 764.) A question calling for a “yes or no” answer
is not leading unless it is unduly suggestive under the
circumstances. (People v. Harris (2008) 43 Cal. 4th 1269, 1285.)
After Gallegos testified that Pallan had threatened her twice
soon after he shot Gomez, the prosecutor asked if anyone had
threatened her since then. She answered, “Yes,” and he asked,
“Who?” She replied: “Just the local girls that knew me in
County.” The prosecutor’s question asked for a yes or no answer.
His followup question merely asked who. He might have
expected Gallegos to respond “another Pico Nuevo member,” just
as the prosecutor represented to the court. When she answered
instead that it was local girls she knew “in County” (presumably
jail), the prosecutor moved on to whether she was concerned
about her safety, which related to her credibility. On redirect,
the prosecutor asked Gallegos about her possession of a gun
when she was arrested and had her first interview, after defense
counsel asked her about the gun during cross examination.
He asked her why she had a gun, she said for protection from
“[j]ust anybody,” and he then asked her if she had received
threats. She answered yes, he again asked who, and she said
she did not remember.

18
 The prosecutor asked yes or no questions, and then
followed up by asking who. Those questions were not unduly
suggestive. We note that Pallan does not claim his counsel’s
failure to object to those questions as leading was ineffective
assistance.
Third, as we explained above, the evidence of third-party
threats was admissible and highly relevant on the issue of
Gallegos’s credibility.
No misconduct occurred. There was no reason for
counsel to object. Even if there were, any objection would have
highlighted the evidence that Gallegos had been threatened,
giving defense counsel a tactical reason to remain silent.
b. Soliciting improper opinion testimony
Pallan argues the prosecutor committed misconduct
when he improperly solicited inadmissible opinion testimony
that Pallan was guilty and Gallegos was credible.
Detective Lieutenant Scott Hoglund, the investigating
officer, testified about the evidence collected in the case,
including the bullet fragments, the cellphone records, the
gunshot residue, and his interviews of Pallan (played for
the jury). The prosecutor asked him:
“Q: All of these tools and resources that you
used were they not only to find potential
suspects but also to exclude potential
individuals who may not have committed
the crime; is that correct?”
“A. Yes.”
“Q. Now, all the evidence that you gathered
and that you have submitted for testing,
everything that you worked up in this
case, other than the defendant, does

19
 the evidence point to anyone else’s guilt
in terms of who committed the crime?”
“A. No.”
“Q. Were you able to exclude other
individuals to make sure that we
have the right person?”
“A. Yes.”
Detective Hoglund then testified he was present when Gallegos
met with the prosecutor to proffer testimony in anticipation of
a plea agreement, and her account of what happened the night
Gomez was killed was consistent with her testimony in court.
Pallan argues Detective Hoglund improperly expressed
his opinion that Pallan was guilty and Gallegos was telling the
truth, and his counsel was ineffective for failing to object that
the prosecutor committed misconduct in eliciting that testimony
through his questioning.
A witness cannot express an opinion about the defendant’s
guilt or innocence. (People v. Torres (1995) 33 Cal.App.4th 37,
47.) This is not because guilt is the ultimate factual question
to be decided by the jury, but because a witness’s opinion about
guilt or innocence is of no assistance to the trier of fact, which is
equally competent to weigh the evidence and draw a conclusion
on the issue of guilt. (Ibid.)
Here, the prosecutor did not ask Detective Hoglund to
opine whether Pallan was guilty of murder. He asked whether
any of the evidence gathered pointed to anyone other than
Pallan, and whether the detective was able to exclude others.
Whether the evidence implicated any one else was not something
the jury was equally competent to decide. The prosecutor then
asked if Gallegos’s proffered testimony was consistent with her
trial testimony. As a percipient witness at the proffer, Detective
Hogland could testify that she told the same story then as she

20
did at trial, but he could not and did not testify that she told
the truth. Again, the jury was not in the same position as
the detective to decide whether Gallegos’s proffered evidence
was the same as her testimony at trial. Detective Hoglund did
not express an opinion that Pallan was guilty or that Gallegos
was truthful. His testimony was not impermissible opinion
testimony, the prosecutor did not commit misconduct, and
defense counsel had no reason to object.
c. Improper appeal to sympathy in closing argument
Pallan argues the prosecutor improperly appealed to
the jury’s sympathy for Gomez, the murder victim, in closing
argument. A prosecutor has wide latitude in closing argument,
and his remarks amount to misconduct only if the defendant
can show a reasonable likelihood the jury understood the
comments in an improper manner. (People v. Frandsen (2019)
33 Cal.App.5th 1126, 1151.)
The prosecutor began his closing argument: “Jessica
Gomez. She didn’t have to die that way. What we learned
through the evidence is that at the very least she had a child.
[¶] Five years from now, ten years from now, twenty years from
now it doesn’t matter. That child used to have a mom and that
child no longer has a mom anymore.” Although some testimony
associated Gomez with drugs, she was nevertheless a victim
like any other. “During some of the photos and exhibits we
saw photos of the crime scene including blood that was on the
sidewalk. That blood should have been coursing through her
veins.” Pallan argues these comments were an improper appeal
to the jury to feel sympathy for the victim.
“ ‘[A]n appeal for sympathy for the victim is out of place
during an objective determination of guilt.’ ” (People v. Martinez
(2010) 47 Cal.4th 911, 957.) Nor may a prosecutor invite the jury

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to view the case through the victim’s eyes. (People v. Lopez,
supra, 42 Cal.4th at p. 969.) By asking the jury to consider that
Gomez’s child was now and forever motherless, the prosecutor
overstepped his bounds. Although he may have intended to
counter the jury’s possible negative image of Gomez, appealing
to the jury to put themselves in the position of her children was
misconduct. By continuing that the blood on the sidewalk should
have been coursing through her veins, the prosecutor appealed
to the jurors to feel sympathy for Gomez.
But the failure to object to the comments was not
ineffective assistance of counsel. Defense counsel may have made
a tactical choice not to object at the very outset of the argument.
The brief remarks were part of a much longer argument after a
long trial during which the prosecutor presented strong evidence
of Pallan’s guilt, and we see no reasonable probability that
they swayed the jury and thereby prejudiced Pallan. (People v.
Leonard (2007) 40 Cal.4th 1370, 1407.)
3. Remand is necessary for the exercise of discretion
whether to strike the firearm enhancement and
serious felony enhancement, and for Pallan to request
a hearing on his ability to pay fines and fees
Pallan argues, and respondent concedes, that we must
remand to allow the trial court to exercise its discretion whether
to strike the firearm enhancement. When the court sentenced
Pallan in 2017, it had no discretion to strike firearm
enhancements proven under sections 12022.5 and 12022.53.
(§§ 12022.5, subd. (c), 12022.53, subd. (h).) Senate Bill No. 620,
effective January 1, 2018, removed the language prohibiting
striking the enhancements and added to both sections: “The
court may, in the interest of justice pursuant to Section 1385

22
and at the time of sentencing, strike or dismiss an enhancement
otherwise imposed by this section. The authority provided by
this subdivision applies to any resentencing that may occur
pursuant to any other law.” This statutory amendment applies
to Pallan retroactively, as his judgment of conviction was not yet
final when the amendment took effect. (People v. Zamora (2019)
35 Cal.App.5th 200, 207.)
During the sentencing hearing, Pallan’s counsel argued
Gallegos had pleaded guilty for a lower sentence and Juarez
had received use immunity, while Pallan did not get an offer
and was subject to a life sentence. She asked the court to nullify
the jury conviction. She understood the court did not have
discretion to strike the firearm enhancement or the five-year
felony enhancement, but Pallan did not have a significant record.
The court responded that although Juarez and Gallegos should
have “faced liability” for the murder, Pallan was the shooter
and primary motivator behind Gomez’s “execution”: “In my
estimation it is a senseless act of violence and it is an unarmed
woman.” Nevertheless, the record does not clearly indicate
whether the court would have exercised its discretion to strike
the firearm enhancement if it had the authority. We therefore
remand for a hearing at which the trial court can exercise its
discretion whether to strike the firearm enhancement.
Pallan’s sentence also includes a five-year enhancement
under section 667, subdivision (a)(1) for a prior serious felony
conviction. Senate Bill No. 1393, effective January 1, 2019,
removed the prohibition against striking the five-year
enhancement by deleting language in the former version of
section 1385, subdivision (b) (“This section does not authorize
a judge to strike any prior conviction of a serious felony for

23
purposes of enhancement of a sentence under Section 667.”
(Sen. Bill No. 1393 (2017-2018 Reg. Sess.) § 2.)). Because
Pallan’s sentence was not final when Senate Bill No. 1393
took effect, the new law applies to him retroactively. (People
v. Zamora, supra, 35 Cal.App.5th at p. 208.) At the hearing
on remand, the trial court can exercise its discretion whether
to strike the five-year prior serious felony enhancement.
Finally, Pallan argues the $70 in assessments and the
$300 restitution fine violated his right to due process because the
trial court imposed them without determining his ability to pay,
citing People v. Dueñas (2019) 30 Cal.App.5th 1157. Pallan
was required to contest his ability to pay in the trial court and
present evidence at a hearing to show he was unable to pay those
amounts. (People v. Castellano (2019) 33 Cal.App.5th 485, 490.)
But as we remand for the trial court to exercise its discretion
whether to strike the two enhancements discussed above, Pallan
should raise any challenge to fines or fees at the sentencing
hearing. (Id. at p. 491; People v. Kopp (2019) 38 Cal.App.5th
47, 96, review granted Nov. 13, 2019, S257844.)

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 DISPOSITION
The matter is remanded for the trial court to consider,
at a hearing at which the defendant has a right to be present
with counsel, whether to exercise its discretion under Senate
Bill No. 620 and Senate Bill No. 1393. In all other respects,
the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

DHANIDINA, J.

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