People v. Jacobs CA5

Filed 10/29/20 P. v. Jacobs CA5
See concurring & dissenting opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F076948
Plaintiff and Respondent,
(Super. Ct. Nos. 17CMS0951A,
v. 17CMS0951B)

ANTHONY JACOBS et al.,
OPINION
Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant Anthony Jacobs.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant Darrien Washington.
Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Daniel B.
Bernstein, Eric L. Christoffersen, and Carlos A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
 Anthony Jacobs and Darrien Washington (respectively, Jacobs and Washington;
collectively, defendants) stand convicted, following a jury trial, as follows:
Counts 1 and 2: Premeditated attempted murder (Pen. Code,1 §§ 187, subd. (a),
664) committed for the benefit of or in association with a criminal street gang (§ 186.22,
subd. (b)), and in the commission of which each defendant personally used and
discharged, and a principal used and discharged, a firearm, proximately causing great
bodily injury (§ 12022.53, subds. (b)-(e)(1));
Counts 3 and 4: Assault with a firearm (§ 245, subd. (a)(2)) committed for the
benefit of or in association with a criminal street gang (§ 186.22, subd. (b)), and in the
commission of which each defendant personally used a firearm (§ 12022.5, subd. (a))2;
Count 5: Shooting at an occupied vehicle (§ 246) for the benefit of or in
association with a criminal street gang (§ 186.22, subd. (b)), and in the commission of
which each defendant personally used and discharged, and a principal used and
discharged, a firearm, proximately causing great bodily injury (§ 12022.53, subds.
(b)-(e)(1)); and
Count 6: Active participation in a criminal street gang (§ 186.22, subd. (a)).
In addition, Washington was convicted, in count 7, of being an ex-felon in
possession of a firearm (§ 29800, subd. (a)(1)), and he admitted having suffered a prior
conviction for a serious felony that was also a strike (§§ 667, subds. (a)-(i), 1170.12,
subds. (a)-(d)).
Defendants were sentenced to lengthy prison terms, and ordered to pay various
fees, fines, and assessments. On appeal, they raise numerous claims involving
sufficiency of the evidence, admission of evidence, jury instructions, and sentencing. We

1 All statutory references are to the Penal Code unless otherwise stated.
2 Jurors found not true allegations defendants personally inflicted great bodily injury
(§ 12022.7, subds. (a) & (d)) with respect to counts 3 and 4.

2.
hold: (1) Substantial evidence supports all challenged convictions and enhancements;
(2) Washington’s challenge to admission of his prior conviction was forfeited by his
failure to object at trial; (3) Defendants are not entitled to reversal for lack of instruction
on lesser included offenses on counts 1, 2, and 5; or for lack of a unanimity instruction
with respect to the identity of the shooter on counts 1 through 5; (4) Defendants are
entitled to a remand to have the trial court exercise discretion with respect to the various
firearm enhancements, and Washington is entitled to have the court exercise its new
discretion to strike the section 667, subdivision (a) enhancement; (5) Defendants are not
entitled to a remand to present evidence and make a record of information relevant to
their youth offender parole hearings, because Jacobs had the opportunity to do so and
Washington is ineligible for such a parole hearing; and Washington’s related equal
protection claim lacks merit, and his cruel and/or unusual punishment claim is premature;
and (6) Defendants forfeited their challenge to the imposition of monetary obligations by
failing to object in the trial court; however, we will modify Jacobs’s judgment with
respect to the amount of the court operations assessment (§ 1465.8) and the court
facilities funding assessment (Gov. Code, § 70373), which were miscalculated.
Accordingly, as to Jacobs, we affirm the judgment as so modified. As to Washington, we
affirm the judgment. We remand the matter to the trial court with directions to exercise
its discretion, as to both defendants, whether to strike any of the firearm enhancements
and, as to Washington, whether to strike one or more of the section 667, subdivision (a)
enhancements.

3.
 FACTS3
I
PROSECUTION EVIDENCE
The Gang Expert’s Background Testimony
Hanford Police Investigator Estrada, a member of the Gang Task Force, testified
that status is important to gangs. In a traditional gang, higher status means receiving
more money from the gang’s business operations. In a loosely-knit gang, someone with
status gets to “call the shots.” African-American gangs in Kings County, which typically
are Crip gangs, are not well organized or run the same way as traditional gangs.
Estrada explained that the Crip gang in Hanford has subsets, such as Hanford
Gangster Crips (often called HGC), H-Mob, and Eight Trey Gangsters. The primary
activities of the Hanford Gangster Crips include selling narcotics and illegally possessing
firearms. The gang’s primary rules are making money and no snitching, even on rival
gang members, and even if someone has been badly hurt (a rule found in almost every
gang). Testifying is considered “the ultimate snitching,” and is not allowed.
Crips claim the color blue; often refer to each other as “Cuz” or “C”; have as
common signs “C” or “GC”; use “moovin” as a motivational term; and identify with the
numbers “3,” “3rd,” or “3X.” Bloods are rivals of Crips, and “BK” means “Blood
Killer.” Derogatory terms for Crips include “Crab” and “Smurf.” “CK,” means “Crip
Killer.” According to Estrada, Kings County does not have many Bloods. Instead, it is a
northern-gang-member-dominated county; hence, the Crips’ main rivals are the Norteños.
Crips in Kings County associate with the 600 gang. This is a newer gang that is
proud of the fact they “took the fight to the Northerners.” They are militant (which to

3 Pursuant to rule 8.90 of the California Rules of Court, we refer to some persons by
their first names and/or initials. No disrespect is intended.
Unspecified dates in the statement of facts are from the year 2017.

4.
them means “[a]ctively aggressive”), and are known for robbery and human trafficking.
In addition, one of their primary activities is witness intimidation or dissuasion. They
wear army green camouflage, and identify with the numbers “6” or “6-4.” Their territory
is in the 600 South Redington area, while Crips’ territory is “the same width” with a
“heavier selection” off Irwin, in apartments known as the Little Kings Terrace (Little
KT’s). The area is known for violence.
Estrada explained that a gang’s “turf” or territory is where the gang lives and
conducts its illegal activities, so it is the area the gang protects. When a rival gang
member walks through the territory, it is a sign of disrespect. It may also be the
beginning of the rival gang trying to “push in” on the territory in order to take over the
illegal activities there. The Crips and 600’s use violence to protect their turf, including
the Little KT’s. If gang members feel disrespected, they will physically assault a rival
gang member. They are more likely to attack if there are more of them than the rival.
Status is gained by attacking. Not retaliating for a sign of disrespect is a sign of
weakness.
Estrada estimated that as of April, there were approximately 70 to 75 active
Hanford Gangster Crips, and about 50 active 600’s. In Kings County as a whole, there
were approximately 2,000 to 2,500 active Northerners.
Testimony Concerning the Shootings
On April 21, Alejandro G. resided on the south side of Hanford, fairly close to
Scott and Redington Streets.4 That day, he and a friend were walking from the other side

4 At trial, Alejandro testified that he did not want to be in court and did not recall
being shot. He did recall talking to Estrada and Hanford Police Investigator Amador at
the hospital, however, and he stated he was truthful with them. Amador interviewed
Alejandro a second time on May 5, after Alejandro’s girlfriend had asked Alejandro to be
truthful with Amador. A recording of that interview was played for the jury and is the
basis for our summary of Alejandro’s version of events.
During the May 5 interview, Alejandro identified Jacobs from a photographic
lineup, but was unable to identify Washington. He also provided Amador with three

5.
of town. They passed the Little KT’s, where a group of African-Americans were “kickin’
it.” When Alejandro walked past, they all grew quiet and looked at him.
As Alejandro continued walking, he felt somebody behind him. He put his hands
up and walked off the other way. People started running toward him. He did not know
what they had in their hands, but he and his friend kept walking quickly.
When Alejandro and his friend turned a corner, “Stoney” — Jacobs — was
waiting. A tall, skinny Black man who looked to be in his early 20’s and who was
wearing a black hoodie was with him.5 People were coming at Alejandro from two
directions, and he felt they were trying to trap him and his companion. One of
Alejandro’s friends came out to help Alejandro.6 The friend took off his shirt. The
African-Americans were saying “600 nigga this and that.” Alejandro did not say
anything gang related, but responded, “fuck you mother fuckers.”7 He told them there
were children there, so they should have respect and “take this shit somewhere else.” He
was expecting a fist fight. Some people who lived on the block came out to help him.
He estimated there were four on his side and nine to 11 in the other group.

different photographs of Jacobs that he had obtained from social media. Washington was
in one of the photographs. In that photograph, Jacobs was making the hand sign for 600,
while Washington was holding up three fingers for Eight Trey.
Alejandro testified at trial that Washington was not at the scene of the shooting.
He also testified that when he identified Jacobs, he was on medication and did not have a
good memory. He did not know who shot him. According to Amador, however,
Alejandro did not appear to be confused or heavily medicated at the time of the May 5
interview. Initially, he was resistive to giving information and possibly was scared.
5 Amador described Washington as tall and thin.
6 There were houses and apartments in the area.
7 At trial, Alejandro denied ever having any association with the Norteño criminal
street gang. He admitted he had four dots tattooed on his hand, however. Estrada
determined that Alejandro was a Norteño.

6.
 The groups were about to fight when Jacobs pulled a chrome .45-caliber pistol
from his waistband in the back. First he shot someone whom Alejandro variously
described as jumping out or reaching out in front of Alejandro or as running toward
Alejandro. This person, who was shot in the side, took the bullet for Alejandro, although
Alejandro did not know who he was.8 Jacobs fired again and shot Alejandro in the leg.
Alejandro did not feel anything and started to run. He was losing a lot of blood, and one
of his friends picked him up and put him to the side.9 Jacobs fired four to seven times.
First he fired one shot, then the second shot, then “he let the whole clip go.” The
African-Americans took off running. Some of them were picked up by a blue truck with
a lawn mower in the back, while others got into a gray or black car.10
R.B. and J.C. lived in an apartment complex south of Scott and Redington Streets.
Around 7:00 p.m., they were in the parking lot, and R.B. was holding J.C.’s daughter,
four-year-old C., when J.C. heard a loud, heated argument between two people. She and
R.B. then heard multiple gunshots. They sounded to J.C. as if they were very close by.
R.B. thought they came from the other side of a fence.

8 This person was Pablo M., who did not testify at trial. Pablo was struck in the hip.
The bullet cracked his pelvis and chipped a piece off the top of his femur.
9 Alejandro was struck on the outside of his lower right leg. The bullet broke both
bones of the leg. Surgery was required to remove bullet fragments and insert a plate to
stabilize one of the bones while it healed.
10 At some point on the evening of April 21, Jacobs telephoned his mother, who had
a small white car, and asked her to pick him up. She did so in front of some apartments,
possibly on Irwin Street. Two other young men were with Jacobs, and Jacobs’s mother
picked them up as well. She thought one was Washington. Later, when Jacobs and his
mother were alone in the car, Jacobs said he had gotten into an argument with someone
who said, “this is north,” or something to that effect. Someone pulled a knife, and Jacobs
backed away, then his mother arrived and Jacobs got in the car.
Jacobs had told his mother “[p]oint blank period” that he was not a gang member.
His mother explained that Jacobs’s nickname was “Stone,” because that was her
grandmother’s last name. When the grandmother passed away in 2014, the males of the
family started using “Stone” as a nickname as a tribute to her.

7.
 Something struck R.B., and he turned and ran back toward their apartment, away
from the gunfire. There were a lot of other adults and children around. The children
were crying and screaming. C. complained of pain, and R.B. discovered blood and a
bruise on the side of her chest. The physician who treated her at the hospital found the
injury to be consistent with being grazed by a bullet. Afterward, C. was in pain for about
a week. As of the time of trial, she had a healed scar across her chest.
Eric C. was leaving a neighborhood store when the shooting occurred. His two
young sons were with him. Eric’s truck was at the corner immediately before Redington
when Eric heard the first shot. There was no turning back, so he pushed his youngest
son’s head down, “punched” his truck, and tried to get out of there as fast as he could.
He did not see anyone, but he heard five or six shots. He ended up with a bullet hole in
the trim of the truck door, about neck- or chin-high to him. There was no exit hole.
At approximately 7:19 p.m. on April 21, Hanford Police Officer Jaime was
dispatched to the area of South Redington and Scott Streets, in response to a call that four
to five shots had been fired in that area. Upon arrival, Jaime saw a lot of people standing
in the area of the intersection. He was told there were two shooting victims “down the
street a little ways.” Jaime then came in contact with Alejandro and Pablo on Scott
Street, near the intersection.11 During the ensuing investigation, eight .40-caliber shell
casings were found on Redington Street, north of Scott Street. They were spread out
almost in a line approximately 10 to 15 feet long. Subsequent testing showed they all
came from one gun. A trail of blood ran west on Scott from the corner of Redington and
Scott.
After Alejandro and Pablo were transported by emergency medical personnel,
Jaime was told by a bystander that a five-year-old girl possibly had been shot. Jaime

11 Video footage of the encounter that was taken from Jaime’s body camera was
played for the jury.

8.
made contact with the child, D., on the sidewalk in the back parking lot of an apartment
complex on Scott Street just south of Redington. There was a fence nearby. D. had an
abrasion or scratch on the top of her right shoulder. The emergency room nurse who
treated D. found the injury to be consistent with being struck by a fragment of a
projectile. Further investigation revealed both C. and D. were struck when a projectile
traveling southbound went through the fence.
Estrada responded to the Little KT’s in response to the shooting call. When he
arrived at approximately 7:20 p.m., he came in contact with Cristian M., who was
wearing a black hoodie. Estrada, who had previously met Cristian, searched him for
weapons, but found none.
On April 28, Estrada interviewed Cristian, who was 13 years old at the time.12
During the interview, Cristian was shown a photographic lineup and identified a picture
of Washington, whom he knew as “Lil Dub” and who he said did the shooting. Cristian
believed Washington was a Crip from HGC. Cristian described him as tall and skinny,
and wearing a grey jacket at the time of the shooting.
At first, Cristian denied any involvement and gave Estrada an account of his
activities that placed him at the Little KT complex when he heard gunshots. At that
point, Estrada showed Cristian a still frame from surveillance video that showed Cristian
running from the scene. Estrada told Cristian that a little girl was hit by one of the bullets

12 At trial, Cristian denied being a gang member, knowing any gang members, or
knowing what the 600 street gang was, although he had heard of the Norteño criminal
street gang. He denied knowing either defendant or having ever been to the area in the
vicinity of the Little KT’s. He also denied being on the south side of Hanford in April,
knowing anything about a shooting at Scott and Redington Streets, being interviewed by
Estrada on April 28, and identifying someone in a photographic lineup. A recording of
the interview was played for the jury. At trial, Cristian denied his voice was on the
recording. At the preliminary hearing, however, Cristian testified that he did talk to
Estrada on April 28, and that his statement to Estrada was true. Cristian also testified at
the preliminary hearing that he was a 600 member.

9.
and Cristian was going to “take the rap” for it. At that point, Cristian explained to
Estrada that he was at the Little KT’s when the incident started. It was sparked by two
Northerners walking by. Cristian did not know they were Northerners until Washington
said those were “ ‘Nortes’ ” who were coming. Cristian did not feel disrespected by them
walking past, but other people did. Cristian, who had been “hittin’ . . . South Side,” did
not want to go, but Washington called him a bitch and told him to come on.13
Washington, Jacobs (whom Cristian knew as “Stone”), Cristian, and Drake W. ran
after the Northerners. Cristian went by way of Davis Street, while Drake and somebody
— Cristian thought it was Jacobs — continued down Irwin to Scott. At some point,
Washington started reaching for his waistband. Cristian thought he was probably going
to pull something out. Cristian thought Washington had a knife, because Cristian had
seen him carry a knife before.
Cristian dropped his pace from a run to a walk, because he did not want to be close
to whatever Washington was doing. Washington was already at the corner, but Cristian
stopped down the street a ways. There were other Crips and Norteños present.14 There
was an argument, with gang names and signs said and thrown by both sides. Jacobs
moved up a bit like he was going to fight “Smokes,” one of the Northerners, but then

13 According to Cristian, 600’s were not a Crips set, but were their own gang. Crips
were considered higher, however, because they had been around longer and had “more
rank in.” Cristian was “low key forced . . . to go.” Had he refused, he would have been
beaten up.
14 One of the Northerners who had walked past the Little KT’s took off his T-shirt
when he was in front of some apartments on Scott. He pointed at his back, across which
“South Side Locs” was tattooed. Cristian did not know if he was one of the people who
was shot. Although only two Northerners had walked past the Little KT’s, Cristian
estimated there were seven or eight present by the time of the shooting.
Surveillance video confirmed Cristian ran, then walked, and then stopped short of
the location of the shooting.

10.
Smokes pulled out a large knife and Jacobs backed up.15 Washington said, “fuck Norte,”
and started shooting. He was the only one who had the gun. Cristian did not know the
caliber of the gun, but it looked to him like a .40- or .45-caliber gun of the type that had a
clip. Washington pulled it from his waistband. It was black. Cristian denied knowing,
before the shooting started, that anyone had a gun. He thought they were just going to
fight with the Northerners.
After the shots were fired, Washington and the others ran in Cristian’s direction.
He ran before they did, and returned to the Little KT’s. Cristian did not know where the
others went, but Jacobs and Drake got into separate white cars.
The police obtained surveillance video from the store at the corner where the
shooting occurred (the same store at which Eric C. had been) and another location. The
video from the second location (which was played for the jury) showed Alejandro and his
companion approaching the area of the Little KT’s parking lot. There were people in
vehicles in the lot, and a group of people came out from the apartment complex.
Alejandro was talking to someone, and Washington came out. A short time later,
Cristian could be seen speaking with Washington. When Alejandro was at Irwin and
Davis Streets, directly south of the Little KT’s, people started running. Some were
wearing articles of camouflage-patterned clothing. In Amador’s opinion based on the
collection of interviews and videos, defendants were there, as were Cristian and a fourth
individual who was never identified. Washington was in front, “leading the pack.” Some
of the group split off and pursued Alejandro southbound on Irwin Street, while
defendants and Cristian flanked him and came across Davis Street toward Redington.
Alejandro continued south to Scott Street, where he turned west. The store video (which
was also played for the jury) showed Eric C.’s truck, as well as subjects meeting toward

15 Estrada believed Smokes was Pablo M.’s son.

11.
the corner. Alejandro and Pablo were among them. The shooting then took place. After
the shooting, everyone fled.
Defendants were apprehended at Washington’s residence in Lemoore on April 30.
Once in custody, both were housed in the jail pod for African-American gang members.
Both “programmed” with Crips and 600’s.
The Gang Expert’s Opinions
Estrada opined that Washington was a Hanford Gangster Crip, Jacobs was a
member of the 600 gang, and each was an active participant in his respective gang.
Estrada opined the crimes benefited the Hanford Gangster Crips and promoted their
lifestyle and conduct. He explained that chasing down and shooting the Hispanic males
let the rival Norteño gang know the Hanford Gangster Crips were “not to be messed
with” and their authority in the area in which the crimes occurred was not to be
challenged. Injuring the two little girls let the community know the gang was not going
to stop just because there were innocent people in the way, and that the surrounding
community was not a concern when the gang was attempting to conduct business.
Estrada further opined that the crimes benefited the 600’s, in that they were allies of the
Hanford Gangster Crips and the crimes demonstrated their militancy. As with the Crips,
the crimes showed the community what they were willing to do and sent a message to
rivals. The shooters would gain status from shooting a rival. The commission of a major
violent crime together would strengthen the bond between the 600’s and the Crips.
II
DEFENSE EVIDENCE
Washington’s mother testified that from around 6:00 to at least 8:00 p.m. on
April 21, Washington was at their home in Lemoore, playing video games. She denied
that Washington was a gang member. To her knowledge, Jacobs, who had stayed with
her at times, also was not a gang member.

12.
 DISCUSSION16
I
SUFFICIENCY OF THE EVIDENCE CLAIMS
Defendants challenge the sufficiency of the evidence with respect to a number of
counts and enhancements. The test of sufficiency of the evidence is whether, reviewing
the whole record in the light most favorable to the judgment below, substantial evidence
is disclosed such that a reasonable trier of fact could find the essential elements of the
crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord,
Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence
which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.)
An appellate court must “presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d
421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10
Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts,
as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96
Cal.App.3d 353, 367). “If the circumstances reasonably justify the [trier of fact’s]
findings, reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding. [Citations.]” (People v. Redmond (1969)
71 Cal.2d 745, 755.) Instead, reversal is warranted only if “it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the conviction].’
[Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard of review

16 Each defendant joins in the other’s arguments to the extent those arguments
benefit him. Each also elaborates on certain arguments made by the other. We are not
required to determine which aspects of a claim raised by one defendant might be
beneficial to the defendant who did not raise the claim. (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 363.) As defendants recognize, “ ‘Joinder may be
broadly permitted [citation], but each appellant has the burden of demonstrating error and
prejudice [citations].’ [Citation.]” (Id. at p. 364.) With a few exceptions, the claims of
error and prejudice made here by each defendant clearly apply equally to both.

13.
applies regardless of whether the prosecution relies primarily on direct or on
circumstantial evidence (People v. Lenart (2004) 32 Cal.4th 1107, 1125), and to both
convictions and enhancements (People v. Beck and Cruz (2019) 8 Cal.5th 548, 626).
A. Premeditated Attempted Murder
1. Attempted murder of Pablo
Defendants challenge the sufficiency of the evidence to sustain their convictions
on count 2, the attempted murder of Pablo. They contend the prosecutor failed to prove
the requisite intent to kill Pablo, who, they argue, was not an intended victim. We
conclude the convictions are supported by substantial evidence.
“An attempt to commit a crime occurs when the perpetrator, with the specific
intent to commit the crime, performs a direct but ineffectual act towards its commission.
[Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 36.) Thus, “[a]ttempted murder
requires the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 31
Cal.4th 613, 623.)
“[I]t is well settled that intent to kill or express malice, the mental state required to
convict a defendant of attempted murder, may in many cases be inferred from the
defendant’s acts and the circumstances of the crime. [Citation.] ‘There is rarely direct
evidence of a defendant’s intent. Such intent must usually be derived from all the
circumstances of the attempt, including the defendant’s actions. [Citation.]’ ” (People v.
Smith (2005) 37 Cal.4th 733, 741.) “The act of shooting a firearm toward a victim at
close range in a manner that could have inflicted a mortal wound had the shot been on
target is sufficient to support an inference of an intent to kill.” (People v. Houston (2012)
54 Cal.4th 1186, 1218.)
Nevertheless, “[t]he defendant’s mental state must be examined as to each alleged
attempted murder victim. Someone who intends to kill only one person and attempts
unsuccessfully to do so, is guilty of the attempted murder of the intended victim, but not

14.
of others.” (People v. Bland (2002) 28 Cal.4th 313, 328 (Bland).) This is so even though
the defendant’s conduct may have endangered the lives of more than one person. (See
People v. Perez (2010) 50 Cal.4th 222, 225, 231.) Because the doctrine of transferred
intent does not apply to the crime of attempted murder, “[a] person who intends to kill
only one is guilty of the attempted (or completed) murder of that one but not also of the
attempted murder of others the person did not intend to kill.” (Bland, supra, at p. 317.)
Thus, in order to be convicted of multiple counts of attempted murder, each involving a
different victim, the prosecution must prove the perpetrator acted with the specific intent
to kill each victim. (People v. Smith, supra, 37 Cal.4th at p. 739.) “Someone who in
truth does not intend to kill a person is not guilty of that person’s attempted murder even
if the crime would have been murder — due to transferred intent — if the person were
killed.” (Bland, supra, at p. 328.)
A person who shoots at a group of people nonetheless may be found guilty of the
attempted murder of everyone in the group, even if he or she targeted only one of them, if
the person also, concurrently, intended to kill others within what has been termed the
“ ‘kill zone.’ ” (Bland, supra, 28 Cal.4th at p. 329.) “ ‘The intent is concurrent . . . when
the nature and scope of the attack, while directed at a primary victim, are such that we
can conclude the perpetrator intended to ensure harm to the primary victim by harming
everyone in that victim’s vicinity.’ ” (Ibid.)
The kill zone theory thus “addresses the question of whether a defendant charged
with the murder or attempted murder of an intended target can also be convicted of
attempting to murder other, nontargeted persons.” (People v. Stone (2009) 46 Cal.4th
131, 138.) The theory “may properly be applied only when a jury concludes: (1) the
circumstances of the defendant’s attack on a primary target, including the type and extent
of force the defendant used, are such that the only reasonable inference is that the
defendant intended to create a zone of fatal harm — that is, an area in which the
defendant intended to kill everyone present to ensure the primary target’s death —

15.
around the primary target and (2) the alleged attempted murder victim who was not the
primary target was located within that zone of harm. Taken together, such evidence will
support a finding that the defendant harbored the requisite specific intent to kill both the
primary target and everyone within the zone of fatal harm.” (People v. Canizales (2019)
7 Cal.5th 591, 607.)
In the present case, the kill zone theory was not presented to the jury by way of
either argument or instruction. If the theory, as most recently explicated in Canizales,
was applicable to the evidence presented at trial, the lack of jury instructions and
argument likely would not preclude us from considering it in determining whether the
evidence was sufficient to sustain defendants’ attempted murder convictions with respect
to Pablo. (See People v. Lindberg (2008) 45 Cal.4th 1, 32; Bland, supra, 28 Cal.4th at
p. 331, fn. 6; People v. Perez (1992) 2 Cal.4th 1117, 1126; People v. Brown (2017) 11
Cal.App.5th 332, 341.) We need not decide whether the kill zone theory applies,
however, because we conclude the evidence was sufficient to permit jurors reasonably to
infer defendants harbored the requisite intent specifically to kill Pablo.
Alejandro told Amador that some people who lived on the block came out and
helped him and his companion. Based on the store video and location of Pablo’s
residence, jurors reasonably could infer Pablo was one of these individuals. Jurors also
could reasonably infer defendants perceived Pablo as an ally of Alejandro. Alejandro’s
group was preparing to fight and may have even been moving toward defendants’ group
when the shooting took place. Once Pablo was perceived as joining the fray, he became
an intended victim, even if only because he became a momentary obstacle when he
jumped or reached in front of Alejandro. (People v. Smith, supra, 37 Cal.4th at p. 741;
see People v. Arias (1996) 13 Cal.4th 92, 162.)

16.
 2. Premeditation and deliberation
Defendants also challenge the sufficiency of the evidence to support the jury’s
findings of premeditation and deliberation with respect to both attempted murder
convictions. We conclude the findings are supported by substantial evidence.
Premeditated attempted murder carries a significantly greater penalty than
attempted murder committed without premeditation and deliberation. (§ 664, subd. (a).)
To subject a defendant to the greater punishment, the trier of fact must find not only an
intent to kill plus a direct but ineffectual act toward the commission of murder, but also
that the defendant acted willfully and with deliberation and premeditation. (People v.
Seel (2004) 34 Cal.4th 535, 540-541; People v. Ramos (2004) 121 Cal.App.4th 1194,
1207; see People v. Solomon (2010) 49 Cal.4th 792, 812.) The question whether a
defendant harbored the requisite state of mind must generally be inferred from the
circumstances of the shooting. (People v. Ramos, supra, 121 Cal.App.4th at pp. 1207-
1208.)
“We do not distinguish between attempted murder and completed first degree
murder for purposes of determining whether there is sufficient evidence of premeditation
and deliberation. [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462-
1463, fn. 8, disapproved on another ground in People v. Mesa (2012) 54 Cal.4th 191,
199.) “Willful” simply means “intentional.” (See § 7, subd. (1); People v. Moon (2005)
37 Cal.4th 1, 29.) “ ‘[D]eliberate’ ” means “ ‘ “formed or arrived at or determined upon
as a result of careful thought and weighing of considerations for and against the proposed
course of action.” ’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 862-863.)
“Premeditated” means “ ‘ “considered beforehand.” ’ ” (Id. at p. 863.) Planning, motive,
and manner of killing are pertinent to a determination of whether premeditation and
deliberation exist (People v. Marks (2003) 31 Cal.4th 197, 230; People v. Perez, supra, 2
Cal.4th at p. 1125; People v. Anderson (1968) 70 Cal.2d 15, 26-27), “but these factors are
not exclusive nor are they invariably determinative” (People v. Marks, supra, 31 Cal.4th

17.
at p. 230; see People v. Thomas (1992) 2 Cal.4th 489, 517). “[W]hile premeditation and
deliberation must result from ‘ “careful thought and weighing of considerations” ’
[citation], . . . ‘[t]he process of premeditation and deliberation does not require any
extended period of time.’ ” (People v. Bolin, supra, 18 Cal.4th at p. 332.)
“Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but
reflection. “Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.” ’ [Citation.]” (People v. Memro, supra, 11 Cal.4th
at p. 863.)
We have set out the evidence in the statement of facts, ante, and need not repeat it
at length here. Viewed in the light most favorable to the judgment, it shows planning and
reflection in that one or both defendants brought a gun when they pursued Alejandro and
his companion, and they and their cohorts separated during the chase in an attempt to trap
their prey.17 (See, e.g., People v. Potts (2019) 6 Cal.5th 1012, 1027; People v. Lee
(2011) 51 Cal.4th 620, 636; People v. Steele (2002) 27 Cal.4th 1230, 1250; People v.
Ramos, supra, 121 Cal.App.4th at p. 1208; People v. Villegas (2001) 92 Cal.App.4th
1217, 1224; cf. People v. Boatman (2013) 221 Cal.App.4th 1253, 1270-1271.)
The evidence also shows motive. Gang enmity has long been recognized as
evidence of motive for murder, even with respect to someone merely perceived or
believed to be a rival gang member or ally of a rival gang. (See, e.g., People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 295; People v. Romero (2008) 44 Cal.4th 386, 401;
People v. Ramos, supra, 121 Cal.App.4th at p. 1208; People v. Villegas, supra, 92
Cal.App.4th at p. 1224.) In the present case, in addition to general gang rivalry, there
was evidence members of a gang that prided itself on militancy, particularly toward
Norteños, felt disrespected and possibly challenged by people they perceived to be

17 Planning need not relate only to the act of killing. (People v. Pensinger (1991) 52
Cal.3d 1210, 1238, fn. 4.)

18.
Norteños. Thus, the fact the victims may have been strangers to defendants does not
negate an inference of motive. (See People v. Solomon, supra, 49 Cal.4th at p. 816;
People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002.) Finally, Alejandro’s description
of the manner of shooting — first one shot, then a second shot, then the whole clip — is
evidence from which deliberation and reflection can be inferred.
We recognize the shooting took place either during or immediately following an
altercation. This does not automatically negate a finding of premeditation and
deliberation, however, even assuming Alejandro’s companion pulled a knife. (See
People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 295; People v. Manriquez (2005) 37
Cal.4th 547, 577; People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082.)18 “[A]ssuming
a reasonable jury could have found the evidence did not support premeditation and
deliberation . . . , defendants’ convictions must stand because . . . ‘[i]f the circumstances
reasonably justify the jury’s findings, the reviewing court may not reverse the judgment
merely because it believes that the circumstances might also support a contrary finding.’
[Citation.]” (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 295.)
B. Assault with a Firearm and Related Gun Use Enhancements
1. Assaults of C. and D.
Defendants contend their convictions on counts 3 and 4, assault with a firearm of
C. and D., respectively, must be reversed. They contend the evidence was insufficient to
prove defendants knew the girls were present behind a nearby fence or harbored an intent
to harm either girl. We disagree.
Defendants were convicted of violating section 245, subdivision (a)(2). In
pertinent part, the statute requires the commission of an assault, which section 240

18 The jury was instructed on, but rejected, the lesser included offense of attempted
voluntary manslaughter based on imperfect self-defense with respect to both attempted
murder counts.

19.
defines as “an unlawful attempt, coupled with a present ability, to commit a violent injury
on the person of another.”
We are concerned here with the mental state necessary for assault. The California
Supreme Court has explained: “The mens rea is established upon proof the defendant
willfully committed an act that by its nature will probably and directly result in injury to
another, i.e., a battery. Although the defendant must intentionally engage in conduct that
will likely produce injurious consequences, the prosecution need not prove a specific
intent to inflict a particular harm. [Citation.] The evidence must only demonstrate that
the defendant willfully or purposefully attempted a ‘violent injury’ or ‘the least
touching,’ i.e., ‘any wrongful act committed by means of physical force against the
person of another.’ [Citation.] In other words, ‘[t]he use of the described force is what
counts, not the intent with which same is employed.’ [Citation.] Because the offensive
or dangerous character of the defendant’s conduct, by virtue of its nature, contemplates
such injury, a general criminal intent to commit the act suffices to establish the requisite
mental state. [Citation.]” (People v. Colantuono (1994) 7 Cal.4th 206, 214-215.)
In People v. Williams (2001) 26 Cal.4th 779, the state high court left its holding in
Colantuono intact (People v. Williams, supra, at p. 788), but clarified: “[A] defendant is
only guilty of assault if he intends to commit an act ‘which would be indictable [as a
battery], if done, either from its own character or that of its natural and probable
consequences.’ [Citation.] Logically, a defendant cannot have such an intent unless he
actually knows those facts sufficient to establish that his act by its nature will probably
and directly result in physical force being applied to another, i.e., a battery. [Citation.] In
other words, a defendant guilty of assault must be aware of the facts that would lead a
reasonable person to realize that a battery would directly, naturally and probably result
from his conduct. He may not be convicted based on facts he did not know but should
have known. He, however, need not be subjectively aware of the risk that a battery might
occur.” (Id. at pp. 787-788, fn. omitted.) “[A] defendant who honestly believes that his

20.
act was not likely to result in a battery is still guilty of assault if a reasonable person,
viewing the facts known to defendant, would find that the act would directly, naturally
and probably result in a battery.” (Id. at p. 788, fn. 3.) The court summarized:
“[A]ssault does not require a specific intent to cause injury or a subjective awareness of
the risk that an injury might occur. Rather, assault only requires an intentional act and
actual knowledge of those facts sufficient to establish that the act by its nature will
probably and directly result in the application of physical force against another.” (Id. at
p. 790.)
“[A] defendant need not intend to strike any particular person to be guilty of an
assault . . . .” (People v. Lee (1994) 28 Cal.App.4th 1724, 1737.) “[A]n intent to do an
act which will injure any reasonably foreseeable person is a sufficient intent for an assault
charge.” (People v. Tran (1996) 47 Cal.App.4th 253, 262.) Thus, in People v. Riva
(2003) 112 Cal.App.4th 981, disapproved on another ground in People v. Anderson
(2020) 9 Cal.5th 946, 956, the court concluded that where the shooting took place in an
urban neighborhood consisting of residences and small businesses, at a time of day when
people were normally returning from work, school, or shopping, and there were a number
of pedestrians and cars in the area when the shooting occurred, “[t]he facts . . . would
lead a reasonable person to realize if he fired a gun at someone in a car at this time of day
in this kind of neighborhood the bullet could strike a pedestrian and a battery would
directly, naturally and probably result from his conduct.” (People v. Riva, supra, at
p. 998, fn. omitted.)
In the present case, R.B.’s testimony showed he was holding C. on one side of a
fence, and the shots came from the other side of the fence.19 There were a lot of other
people — children and adults — around. J.C. testified that the shots “sounded very
close.” Another witness testified there was a three-year-old child in the front yard three

19 According to Amador, C. and D. were on the same side of the fence.

21.
houses east of the intersection of Scott and Redington. Alejandro told Amador that when
the two groups came together in front of the driveway that led to apartments, he told
defendants’ group that there were “kids right here” and to have some respect, but Jacobs
said he “d[id]n’t give a fuck about those kids.”
From the foregoing evidence, jurors reasonably could conclude defendants
actually knew facts that would lead a reasonable person to realize a battery would
directly, naturally, and probably result from the firing of multiple shots toward
Alejandro’s group. (See People v. Williams, supra, 26 Cal.4th at pp. 787-788.) This is
so regardless of whether C. and/or D. were visible to defendants. (See People v. Tran,
supra, 47 Cal.App.4th at p. 262; compare People v. Navarro (2013) 212 Cal.App.4th
1336, 1346 & People v. Felix (2009) 172 Cal.App.4th 1618, 1621-1622, 1629-1630 with
People v. Velasquez (2012) 211 Cal.App.4th 1170, 1176-1177 & People v. Miller (2008)
164 Cal.App.4th 653, 664.) Accordingly, defendants are not entitled to reversal of their
convictions on counts 3 and 4.
2. Section 12022.5 enhancements
Defendants challenge the sufficiency of the evidence to sustain the jury’s true
findings on the firearm enhancements appended to counts 3 and 4. Unlike the firearm
enhancement allegations found true with respect to other counts, which, because gang
allegations also were found true, required only a finding that a principal in the crime
personally used and/or discharged a firearm (§ 12022.53, subd. (e); see People v. Salas
(2001) 89 Cal.App.4th 1275, 1281), the section 12022.5, subdivision (a) allegations
appended to counts 3 and 4 required that the defendant himself must have personally used
a firearm. (See, e.g., In re Antonio R. (1990) 226 Cal.App.3d 476, 479; People v. Nguyen
(1988) 204 Cal.App.3d 181, 193.) Defendants argue the evidence showed there was only
one firearm used, and there was no evidence more than one person used the firearm;
hence, the evidence failed to prove which defendant fired the shot or shots that injured C.
and D.

22.
 We agree Amador’s and Estrada’s speculation defendants may have shared one
gun was just that — speculation. Speculation is not evidence and is insufficient to sustain
a conviction or true finding on an enhancement allegation. (People v. Waidla (2000) 22
Cal.4th 690, 735; People v. Raley (1992) 2 Cal.4th 870, 891.) Regardless, one
eyewitness to the shooting — Alejandro — stated Jacobs fired a chrome pistol, while
another eyewitness — Cristian — stated Washington fired a black pistol. Estrada
testified that Alejandro and Cristian viewed events from different vantage points, thus
explaining how they may have seen different things.
“In reviewing the record on appeal, we must regard all factual disputes in the
evidence to have been resolved in favor of the judgment. [Citations.]” (People v.
Ordonez (1991) 226 Cal.App.3d 1207, 1217.) “Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]”
(People v. Young (2005) 34 Cal.4th 1149, 1181.) Unless the testimony is physically
impossible or inherently improbable, the testimony of a single witness is sufficient to
establish the identity of the perpetrator or otherwise support a conviction (People v. Reed
(2018) 4 Cal.5th 989, 1006; People v. Young, supra, at p. 1181; see Evid. Code, § 411),
“even if it is contradicted by other evidence, inconsistent or false as to other portions” (In
re Frederick G., supra, 96 Cal.App.3d at p. 366). To warrant rejection of a witness’s
statements on the ground they are inherently incredible “requires ‘ “ ‘either a physical
impossibility that they are true, or their falsity must be apparent without resorting to
inferences or deductions.’ ” ’ [Citation.]” (People v. Thompson (2010) 49 Cal.4th 79,
124.) “The inherently improbable standard addresses the basic content of the testimony
itself — i.e., could that have happened? — rather than the apparent credibility of the
person testifying.” (People v. Ennis (2010) 190 Cal.App.4th 721, 729.)
Here, the jury was not required to accept Alejandro’s or Cristian’s statements, and
reasons existed to question their veracity. But the jury was not required to disbelieve
them, either. (See People v. Hovarter (2008) 44 Cal.4th 983, 1016.) Alejandro’s

23.
statement constituted evidence Jacobs fired the shots. That evidence supports the jury’s
true finding on the firearm use allegation as to Jacobs. Cristian’s statement constituted
evidence Washington was the one who fired. That evidence supports the jury’s true
finding on the firearm use allegation as to Washington. (See People v. Font (1995) 35
Cal.App.4th 50, 58.)
We recognize that, during deliberations, jurors sent out a note that read: “We
believe one Attemted Murde and The OTher aided and abetted. Would Both be charged
with Attempted Murder?” (Sic.) Assuming this meant jurors determined only one
defendant was the shooter, it does not preclude a firearm use finding as to both
defendants.20 “[U]ses,” as employed in section 12022.5, subdivision (a), is broadly
construed, and does not require that the gun be fired or even pointed at the victim.
(People v. Granado (1996) 49 Cal.App.4th 317, 322.) If a defendant displays a firearm
in order to facilitate the commission of an underlying crime, a “use” has occurred. (Id. at
p. 325.) “Thus when a defendant deliberately shows a gun, or otherwise makes its
presence known, and there is no evidence to suggest any purpose other than intimidating
the victim (or others) so as to successfully complete the underlying offense, the jury is
entitled to find a facilitative use rather than an incidental or inadvertent exposure.”
(Ibid.)
Alejandro’s and Cristian’s statements furnished substantial evidence both
defendants used a firearm in commission of the assaults of C. and D., even assuming only
one gun was fired. Jurors were not required to decide which defendant actually fired the

20 In some portions of his argument to the jury, the prosecutor described defendants
as using “guns” — plural — while in others, he referred to use of “the gun” — singular.
“[T]heories suggested by the prosecutor are not the sole theories the jury may consider in
making its determination of guilt. [Citation.]” (People v. Clark (2011) 52 Cal.4th 856,
947.)

24.
shot or shots that injured C. and D. (See People v. Berry (1993) 17 Cal.App.4th 332,
335-339; see also People v. Walker (1988) 47 Cal.3d 605, 635.)
C. Shooting at an Occupied Vehicle and Related Gang Enhancements
Next, defendants challenge the sufficiency of the evidence to sustain their
convictions on count 5, shooting at an occupied vehicle in violation of section 246, and
the appended gang enhancement. They say the shooter fired wildly, and there was no
evidence either defendant shot at, or intended to hit, any vehicle. They further contend
that even if shots were fired at Alejandro in a gang-related act or to benefit a gang, shots
fired wildly or randomly and with no particular purpose were not shown to have
benefited any gang or to have been fired with the specific intent required for the gang
enhancement, particularly since the incident involving the vehicle was not referenced in
the gang expert’s testimony. We disagree with both contentions.
1. The substantive offense
Section 246 criminalizes the “malicious[] and willful[] discharge [of] a firearm at
an . . . occupied motor vehicle . . . .” “Section 246 is a general intent crime. [Citation.]
As such, the term ‘maliciously’ in section 246 is defined by section 7, item 4, as ‘a wish
to vex, annoy, or injure another person, or an intent to do a wrongful act, established
either by proof or presumption of law.’ ” (People v. Watie (2002) 100 Cal.App.4th 866,
879.) “ ‘As for all general intent crimes, the question is whether the defendant intended
to do the proscribed act.’ [Citation.] ‘In other words, it is sufficient for a conviction if
the defendant intentionally did that which the law declares to be a crime.’ [Citation.]”
(People v. Overman (2005) 126 Cal.App.4th 1344, 1356.)
“ ‘The crime of shooting at an occupied vehicle “is not limited to shooting directly
at [the] occupied target.” [Citation.] Rather, the applicable statute “proscribes shooting
either directly at or in close proximity to an . . . occupied target under circumstances
showing a conscious disregard for the probability that one or more bullets will strike the
target or persons in or around it.” ’ [Citation.]” (People v. Bell (2019) 7 Cal.5th 70, 109;

25.
see People v. Overman, supra, 126 Cal.App.4th at pp. 1356-1357.) “Accordingly, one
may restate section 246 as prohibiting any person from maliciously and willfully
discharging a firearm in the direction of or towards an occupied motor vehicle.” (People
v. Manzo (2012) 53 Cal.4th 880, 885.)
Eric C., whose truck was hit by a bullet, testified that he was “[r]ight on the corner
right before Redington” when he heard shots, and he pointed out the location of his truck
on a photograph of the intersection of Scott and Redington Streets.21 He explained that
“[t]here was no turning back,” so he pushed his youngest son’s head down “and punched
[his] truck and just tried to get out of there as fast as [he] could.”
Based on the evidence, jurors reasonably could have concluded Eric was about to
enter the intersection of Scott and Redington Streets when the shooting started, and so
could have found the elements of a violation of section 246 proven beyond a reasonable
doubt. “Defendant and his associates, engaged in a fusillade of shots directed primarily
at persons standing close to a [passing vehicle]. The jury was entitled to conclude that
they were aware of the probability that some shots would hit the [vehicle] and that they
were consciously indifferent to that result.” (People v. Chavira (1970) 3 Cal.App.3d 988,
993, fn. omitted.) This is sufficient to satisfy the statutory requirements. (See People v.
Bell, supra, 7 Cal.5th at p. 109.)
2. The gang enhancement
“There are two prongs to the gang enhancement under section 186.22, subdivision
(b)(1).[22] [Citation.] The first prong requires that the prosecution prove the underlying
felony was ‘gang related.’ [Citations.] The second prong ‘requires that a defendant

21 In addition, video from the store showed Eric’s truck as the confrontation between
the groups was occurring, and, during the playing of video of the area taken by a drone,
Amador showed jurors where the truck was traveling when it was struck.
22 The gang enhancement appended to count 5 was alleged under subdivision (b)(4)
of section 186.22. Although the prescribed punishment differs under the two
subparagraphs, the elements of the enhancement remain the same.

26.
commit the gang-related felony “with the specific intent to promote, further, or assist in
any criminal conduct by gang members.” ’ [Citation.] [¶] Section 186.22, subdivision
(b)(1) provides three alternatives for establishing the first prong . . . . The offense may be
committed (1) for the benefit of a gang; (2) at the direction of a gang; or (3) in association
with a gang. [Citation.] Because the first prong is worded in the disjunctive, a gang
enhancement may be imposed without evidence of any benefit to the gang so long as the
crime was committed in association with or at the direction of another gang member.
[Citations.] The first prong therefore may be established with substantial evidence that
two or more gang members committed the crime together, unless there is evidence that
they were ‘on a frolic and detour unrelated to the gang.’ [Citations.]” (People v.
Weddington (2016) 246 Cal.App.4th 468, 484, fn. & italics omitted.)
Here, the evidence showed Washington was a member of the Hanford Gangster
Crips, while Jacobs was a member of the 600’s. The evidence further showed these
gangs were strong allies. From the circumstances surrounding the incident, jurors
reasonably could infer defendants came together as gang members, and relied on their
gang alliance and the apparatus of their gangs, including the presence of their fellow gang
members, in committing the offenses arising out of the shooting, including that involving
Eric C.’s occupied vehicle. (See People v. Albillar (2010) 51 Cal.4th 47, 60.)23 Thus,
jurors could reasonably have concluded defendants committed a violation of section 246
in association with a gang. Moreover, even without expert testimony on this precise
point, jurors reasonably could have concluded the offense benefited both gangs for the
same reasons Estrada gave with respect to the assaults on C. and D.

23 Estrada presented the Hanford Gangster Crips and 600’s as separate but allied
gangs, not subsets of the same overall gang. (Cf. People v. Prunty (2015) 62 Cal.4th 59,
67-68.) Albillar involved members of the same gang. (People v. Albillar, supra, 51
Cal.4th at p. 51.) In light of the alliance between the Hanford Gangster Crips and the
600’s, defendants fail to persuade us this distinction matters. Indeed, they make no
attempt to do so.

27.
 As for the second prong of the enhancement, there must be substantial evidence
defendants acted with “the specific intent to promote, further, or assist in any criminal
conduct by gang members — including the current offenses . . . .” (People v. Albillar,
supra, 51 Cal.4th at p. 65.) “[I]f substantial evidence establishes that the defendant
intended to and did commit the charged felony with known members of a gang, the jury
may fairly infer that the defendant had the specific intent to promote, further, or assist
criminal conduct by those gang members.” (Id. at p. 68.) On the evidence presented
here, it would be difficult for a rational jury to come to any conclusion other than that
defendants harbored the requisite intent.
D. Ex-Felon in Possession of a Firearm
Washington contends the evidence was insufficient to sustain his conviction for
being an ex-felon in possession of a firearm, as charged in count 7. The elements of a
violation of section 29800, subdivision (a)(1) are conviction of a felony and ownership,
possession, custody, or control of a firearm. (People v. Jeffers (1996) 41 Cal.App.4th
917, 922 [analyzing former § 12021, subd. (a)(1), the predecessor statute to § 29800,
subd. (a)(1)].) Washington argues there was nothing more than Estrada’s opinion
Washington passed the gun off to Jacobs, and the jury was not instructed it must
unanimously agree on the identity of the shooter.
As we previously described, there was evidence from which the jury could have
concluded Washington personally used a firearm.24 If believed by the jury, this evidence
was sufficient to sustain the conviction. Accordingly, Washington’s claim fails.
II
EVIDENTIARY CLAIM
Washington contends his prior assault conviction was improperly admitted into
evidence as a gang predicate offense. He says the trial court did not recognize it had, and

24 We will address the lack of unanimity instruction, post.

28.
so did not exercise, discretion to exclude the conviction pursuant to Evidence Code
section 352. He argues that had the court recognized its discretion, it likely would have
excluded the evidence as cumulative, not probative, prejudicial because the prior crimes
were somewhat similar to the current offenses, and inflammatory because some of the
information was calculated to give the jury a poor impression of Washington’s character.
We conclude Washington forfeited his claim by failing to object at trial.
A. Background
Outside the presence of the jury, the court took up the issue of Washington’s prior
conviction for assault with a firearm (§ 245, subd. (a)(2)), which formed the basis for
count 7, ex-felon in possession of a firearm. The court noted that when it read the
charges to the jury, it only read that Washington was prohibited from owning or being in
possession of a gun as a result of a prior felony. This ensued:

“[THE COURT:] I did not know whether you were trying to
bifurcate. The issue concerning bifurcation is I would be willing to grant it,
but the problem is, it would probably still come in under a predicate act as
far as conviction purposes, and that, of course, is a different standard of
proof than the proof required for a conviction as a prior.

“So what is your preference; your trial tactic?

“[COUNSEL FOR WASHINGTON]: Well, the charge that my
client was in possession of a handgun with a prior felony, that’s going to
come in to establish one of the elements in that particular count; is that
correct?

“THE COURT: Well, the way I have done it in the past is that if he
admits it then he’s admitting one of the elements of that Count 7 and
therefore we don’t have to go to it; however, the problem is [sic] you have
the gang enhancements, and with respect to the gang enhancements that’s
going to be one of the predicate acts used in the matter, and so it’s going to
come in that way. [¶] . . . [¶]

“[COUNSEL FOR WASHINGTON]: Right. [¶] And I think the,
what we want to do tactically is admit the prior because they’re going to be
proven and they’re going to be proven in front of the jury. I’d rather have
him just admit them and let the deputy move the direction he needs to go.

29.
 “THE COURT: Okay. So. [¶] If he admits them with respect to 7,
that’s an element that’s admitted so he would just be already admitting to
the jury that he’s a prior convicted felon. [¶] . . . [¶] . . . For the possession.
That’s one element. Then they still have to prove the possession.
[¶] . . . [¶] . . . The strike conviction itself would be admitted so they do not
have to prove that; however, the special allegations concerning the gang
enhancement, basically it still comes in as a predicate act. That’s what [the
prosecutor] intends to do, and he may make reference to it as a predicate
act. [¶] . . . [¶]

“[COUNSEL FOR WASHINGTON]: Can you give me a moment
with Mr. Washington?

“THE COURT: I’ll give you a moment, but that’s the Court’s
tentative way to move forward on it. I don’t know if you want to object to
that or anything else.

“[PROSECUTOR]: My understanding is I’m, then I’m going to be
allowed to talk about this 245 and present evidence about it.

“THE COURT: As . . . to basically prove up the gang allegation.

“[PROSECUTOR]: Under People versus Tran.

“THE COURT: Yes, but as far as saying he’s got a prior strike and
a prior felon [sic], that would be precluded.” (First italics added.)
The court then gave counsel time to talk to Washington, although it noted that the
conviction was “coming in one way or another.” Counsel for Washington stated
Washington was going to admit the prior conviction. The court then explained the
situation to Washington and how the prior conviction could be used. When Washington
stated he wished to admit the conviction, the court then advised him, and obtained a
waiver, of his rights.
Later, in the jury’s presence, the prosecutor presented documents showing, and/or
testimony concerning, the convictions and/or juvenile adjudications for gang predicate
offenses of five persons aside from Washington, as well as testimony concerning their
gang affiliations. Two were Hanford Gangster Crips, while three (one of whom was
Cristian M.) were 600’s or West Side Mafia, a former name of the 600 gang.

30.
 The prosecutor also proffered exhibits 95, 95-A, and 95-B. Exhibit 95 was a first
amended information filed October 22, 2015, which charged Washington with carjacking
(§ 215, subd. (a); count 1), robbery (§ 211; count 2), and assault with a firearm (§ 245,
subd. (a)(2); count 3). Exhibit 95-A was a minute order from October 22, 2015,
reflecting that an agreement was reached whereby Washington pled guilty to count 3 and
the other counts were dismissed. Exhibit 95-B was a minute order from November 19,
2015, which showed Washington was placed on probation for five years on various terms
and conditions. Asked by the court if he had any objection, counsel for Washington
responded, “No objection,” and the exhibits were admitted into evidence.
B. Analysis
“ ‘To establish that a group is a criminal street gang within the meaning of [section
186.22], the People must prove: (1) the group is an ongoing association of three or more
persons sharing a common name, identifying sign, or symbol; (2) one of the group’s
primary activities is the commission of one or more statutorily enumerated criminal
offenses; and (3) the group’s members must engage in, or have engaged in, a pattern of
criminal gang activity.’ [Citation.] ‘A “pattern of criminal gang activity” is defined as
gang members’ individual or collective “commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of
two or more” enumerated “predicate offenses” during a statutorily defined time period.
[Citations.] The predicate offenses must have been committed on separate occasions, or
by two or more persons. [Citations.]’ ” (People v. Ochoa (2017) 7 Cal.App.5th 575,
581.) A charged crime may serve as a predicate offense (ibid.), as may an offense the
defendant committed on a separate occasion (People v. Tran (2011) 51 Cal.4th 1040,
1044).

31.
 Upon timely objection, an offense the defendant committed on a separate occasion
may be subject to exclusion pursuant to Evidence Code section 352.25 The mere fact the
prosecution might be able to develop predicate offenses committed by other gang
members does not, however, automatically require exclusion of evidence of the
defendant’s own offense to show a pattern of gang activity. (People v. Tran, supra, 51
Cal.4th at pp. 1048-1049.)
In the present case, Washington made no objection to admission of the evidence,
despite being given several opportunities to do so. “A defendant ‘ordinarily cannot
obtain appellate relief based upon grounds that the trial court might have addressed had
the defendant availed himself or herself of the opportunity to bring them to that court’s
attention.’ [Citation.] Generally, a timely objection is required for reversal of a
judgment on the merits of an alleged erroneous admission of the evidence. (Evid. Code,
§ 353, subd. (a).)” (People v. Stevens (2015) 62 Cal.4th 325, 334; see, e.g., People v.
Landry (2016) 2 Cal.5th 52, 86.) Thus, “[a] defendant who fails to make a timely
objection or motion to strike evidence may not later claim that the admission of the
evidence was error . . . .” (People v. Abel (2012) 53 Cal.4th 891, 924.) When an
objection is made, the specific ground of the objection must be stated. (Ibid.) “ ‘What is
important is that the objection fairly inform the trial court, as well as the party offering
the evidence, of the specific reason or reasons the objecting party believes the evidence
should be excluded, so the party offering the evidence can respond appropriately and the
court can make a fully informed ruling.” (Ibid.)
We see no reason the requirement of a timely and specific objection should be
excused in the present case. The trial court’s comments do not suggest any objection on

25 Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.”

32.
the grounds of Evidence Code section 352 would have been futile. This is particularly
true with regard to the inclusion in the exhibits of the carjacking and robbery counts that
were dismissed.
Washington points to the fact the court and prosecutor recognized People v. Tran,
supra, 51 Cal.4th 1040, as controlling authority, but ignored the discussion in that case of
Evidence Code section 352. He claims that in light of this acknowledgement of Tran, the
scope of the objection was readily inferable and so no formal statement was required in
order to preserve the issue for review. (See People v. Lang (1989) 49 Cal.3d 991, 1010,
abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) He also
suggests the trial court anticipated a defense objection and “headed it off.”
We are not persuaded. The reporter’s transcript shows the trial court was
scrupulous about placing its Evidence Code section 352 weighing process on the record
whenever an objection under that statute was made. That it did not do so here shows it
did not infer such an issue was being raised. If Washington wished to have the trial court
exercise its discretion by weighing probative value against prejudicial effect, he should
have made his objection clear.
“For the first time in his reply brief, [Washington argues that any forfeiture of his
claim] was ineffective assistance of counsel. It is rarely appropriate to resolve an
ineffective assistance claim on direct appeal [citation]; we certainly will not do so where,
as here, the claim is omitted from the opening brief and thus waived [citations].” (People
v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)26

26 “Failure to object rarely constitutes constitutionally ineffective legal representation
. . . .” (People v. Boyette (2002) 29 Cal.4th 381, 424.) Were we to reach the merits of a
challenge to admission of Washington’s prior conviction or of his claim of ineffective
assistance of counsel, we would find no cause for reversal. The prosecutor was seeking
to prove the existence of two gangs — the Hanford Gangster Crips and the 600’s.
Thus, he had to meet the requirements of section 186.22, subdivisions (e) and (f) for each
gang. Although conviction of only two predicate offenses was required per gang, the
prosecutor was additionally required to prove each was an ongoing association of three or

33.
 III
JURY INSTRUCTION CLAIMS
A. Failure to Instruct on Lesser Included Offenses
Defendants contend the trial court erred by failing to instruct on unpremeditated
attempted murder as a lesser included offense of premeditated attempted murder as to
counts 1 and 2, and on grossly negligent discharge of a firearm as a lesser included
offense of shooting at an occupied motor vehicle as to count 5. We find no cause for
reversal.
1. General legal principles
“ ‘In criminal cases, even absent a request, a trial court must instruct on the
general principles of law relevant to the issues the evidence raises. [Citation.] “ ‘That
obligation has been held to include giving instructions on lesser included offenses when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than
that charged. [Citations.]’ ” [Citation.] “[T]he existence of ‘any evidence, no matter
how weak’ will not justify instructions on a lesser included offense, but such instructions
are required whenever evidence that the defendant is guilty only of the lesser offense is

more persons. In this regard, Washington constituted the third member of the Hanford
Gangster Crips. Had the trial court been presented with the issue, it would have been
well within its discretion to find, under the circumstances, the evidence was not
cumulative. The prosecutor was not required to rely solely on Estrada’s estimates of the
membership numbers of the two gangs, thereby running the risk jurors would question
the basis for Estrada’s testimony in that regard. Additionally, any risk jurors would
consider the evidence for the improper purpose of demonstrating Washington’s bad
character was minimized by the trial court’s instruction that jurors could not conclude,
from evidence of gang activity, that a defendant was a bad person or had a disposition to
commit crimes, and from the prosecutor’s statement, during his opening summation, that
he was not mentioning the evidence to say Washington was a bad person, but rather
because the conviction was for one of the primary activities of a gang and Washington
was a gang member, both of which the jury could use to establish the existence of the
gang.

34.
‘substantial enough to merit consideration’ by the jury. [Citations.]” ’ [Citations.] In
this regard, the testimony of a single witness . . . may suffice to require lesser included
offense instructions. [Citation.] Courts must assess sufficiency of the evidence without
evaluating the credibility of witnesses, for that is a task reserved for the jury. [Citation.]
The failure to instruct on a lesser included offense in a noncapital case does not require
reversal ‘unless an examination of the entire record establishes a reasonable probability
that the error affected the outcome.’ [Citations.]” (People v. Wyatt (2012) 55 Cal.4th
694, 698; see, e.g., People v. Breverman (1998) 19 Cal.4th 142, 162, 178.)27
An appellate court “independently review[s] a trial court’s failure to instruct on a
lesser included offense. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 596; accord,
People v. Waidla, supra, 22 Cal.4th at p. 733.) “For purposes of determining a trial
court’s instructional duties, . . . ‘a lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts actually alleged
in the accusatory pleading, include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser. [Citations.]’
[Citations.]” (People v. Smith (2013) 57 Cal.4th 232, 240.)
2. Attempted murder
Defendants contend the trial court committed prejudicial error, with respect to
counts 1 and 2, by failing to instruct on unpremeditated attempted murder as a lesser
included offense of premeditated attempted murder. In response, the Attorney General
says nonpremeditated attempted murder is not a lesser included offense of premeditated
attempted murder; rather, the portion of section 664, subdivision (a) that imposes greater
punishment for attempted murder that is premeditated constitutes a penalty provision.

27 An exception to this standard of prejudice may exist when the error deprives a
defendant of his or her federal constitutional right to present a complete defense. (People
v. Rogers (2006) 39 Cal.4th 826, 868, fn. 16; but see People v. Molano (2019) 7 Cal.5th
620, 672.)

35.
(See, e.g., People v. Favor (2012) 54 Cal.4th 868, 876-877, 879; People v. Bright (1996)
12 Cal.4th 652, 660-661, 665-668, overruled in part in People v. Seel, supra, 34 Cal.4th
at p. 550 & fn. 6; People v. Douglas (1990) 220 Cal.App.3d 544, 549-550.) Defendants
acknowledge these authorities, but dispute their continuing validity following Apprendi v.
New Jersey (2000) 530 U.S. 466, 490, in which the United States Supreme Court held:
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” (See People v. Banks (2014) 59 Cal.4th 1113, 1152 [willful,
deliberate, and premeditated nature of attempted murder is functional equivalent of
element of offense], overruled on another ground in People v. Scott (2015) 61 Cal.4th
363, 391, fn. 3; People v. Seel, supra, 34 Cal.4th at p. 541 [under Apprendi, § 664,
subd. (a), although designated a penalty provision, effectively placed the defendant in
jeopardy for offense greater than attempted murder].)
We need not become embroiled in this dispute. The trial court instructed the jury,
in pertinent part:

“The defendants are charged in Counts 1 and 2 with attempted
murder. To prove that a defendant is guilty of attempted murder, the
People must prove that, one, the defendant took at least one direct but
ineffective step toward killing another person; and two, the defendant
intended to kill that person. [¶] . . . [¶]

“If you find the defendants guilty of attempted murder under Counts
1 and 2, you must then decide whether the People have proved the
additional allegation that the attempted murder was done willfully and with
deliberation and premeditation. The defendants acted willfully if they
intended to kill when they acted.

“The defendants deliberated if they carefully weighed the
considerations for or against their choice, and knowing the consequences,
decided to kill.

“The defendants acted with premeditation if they decided to kill
before completing the acts of attempted murder . . . . [¶] . . . [¶]

36.
 “The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
this allegation has not been proved.” (Italics added.)
It is clear from the foregoing that the trial court adequately instructed on
unpremeditated attempted murder. Moreover, the verdicts show the jury made separate
and express findings on attempted murder and the allegation of premeditation and
deliberation as to each count and each defendant. Defendants fail to explain what they
would have gained had the trial court expressly designated unpremeditated attempted
murder as a lesser offense of premeditated attempted murder.
Where warranted by the evidence, “the jury must be allowed to ‘consider the full
range of possible verdicts . . . ,’ so as to ‘ensure that the verdict is no harsher or more
lenient than the evidence merits.’ [Citations.]” (People v. Breverman, supra, 19 Cal.4th
at p. 160.) To force the jury to make an “ ‘all or nothing’ choice between conviction of
the crime charged or complete acquittal” denies the jury the opportunity to decide
whether the defendant is guilty of an intermediate offense established by the evidence.
(People v. Barton (1995) 12 Cal.4th 186, 196.)
Here, the jury was not forced to make an unwarranted all-or-nothing choice
between unpremeditated and premeditated attempted murder. They were given a full
opportunity to resolve the factual question and return an intermediate verdict. (Cf.
People v. Ramkeesoon (1985) 39 Cal.3d 346, 352.)
3. Shooting at an occupied motor vehicle
Defendants were convicted, in count 5, of shooting at an occupied vehicle in
violation of section 246. The trial court did not instruct on grossly negligent discharge of
a firearm, in violation of section 246.3, subdivision (a)(1), as a lesser included offense.
Defendants now contend their convictions on count 5 must be reversed as a result. We
disagree.
A violation of section 246.3, subdivision (a) is necessarily included in a violation
of section 246. (People v. Ramirez (2009) 45 Cal.4th 980, 983, 990; People v. Overman,

37.
supra, 126 Cal.App.4th at p. 1361.) The elements of section 246.3, subdivision (a) are:
“ ‘(1) the defendant unlawfully discharged a firearm; (2) the defendant did so
intentionally; (3) the defendant did so in a grossly negligent manner which could result in
the injury or death of a person.’ [Citations.]” (People v. Ramirez, supra, at p. 986.)
“ ‘Gross negligence, as a basis for criminal liability, requires a showing that the
defendant’s act was “ ‘such a departure from what would be the conduct of an ordinarily
prudent or careful [person] under the same circumstances as to be incompatible with a
proper regard for human life, or, in other words, a disregard of human life or an
indifference to consequences.’ ” [Citation.]” (Id. at p. 989.)
Section 246 and section 246.3, subdivision (a) “[b]oth . . . require that the
defendant willfully fire a gun. Although the mens rea requirements are somewhat
differently described, both are general intent crimes. The high probability of human
death or personal injury in section 246 is similar to, although greater than, the
formulation of likelihood in section 246.3[, subdivision ](a), which requires that injury or
death ‘could result.’ The only other difference between the two, and the basis for the
more serious treatment of a section 246 offense, is that the greater offense requires that
an inhabited dwelling or other specified object be within the defendant’s firing range.”
(People v. Ramirez, supra, 45 Cal.4th at p. 990, italics added; see People v. Overman,
supra, 126 Cal.App.4th at p. 1362.)
In People v. Bell, supra, 7 Cal.5th 70, the defendant was charged, inter alia, with
violating section 246. On appeal, he claimed the trial court erred by failing to instruct on
section 246.3, subdivision (a) as a lesser included offense. (People v. Bell, supra, at
p. 108.) The California Supreme Court disagreed, finding no substantial evidence the
defendant committed only the lesser offense. (Id. at p. 110.) The court observed that “to
find defendant guilty of section 246.3, subdivision (a) but not section 246, the jury would
have had to find that defendant’s shots were not aimed at or ‘ “in close proximity to” ’
[the victim’s] truck.” (Id. at p. 109.) The victim testified that he saw someone emerge

38.
from a convenience store that had just been robbed. The shooter was running toward the
victim’s truck, and the victim heard two shots. He later found a dent in his passenger
door. He thought the shots were directed at him, but never saw the shooter aim at his
truck. Another witness testified he saw the defendant shooting at the victim, and that the
defendant later said he shot at the victim to eliminate witnesses. (Id. at p. 109.) The state
Supreme Court concluded that even if, as the defendant argued, the jury could have
disregarded the nonvictim witness’s testimony because of credibility problems, “the
record includes no evidence that defendant fired aimlessly or into the air. ‘ “Speculation
is an insufficient basis upon which to require the giving of an instruction on a lesser
offense.” ’ [Citation.] There was no substantial evidence that defendant was guilty only
of a grossly negligent firearm discharge. The court had no sua sponte duty to instruct on
this lesser offense. [Citation.]” (Id. at pp. 109-110.)
In People v. Overman, supra, 126 Cal.App.4th 1344, there was evidence that
moments before the defendant fired his rifle, he pointed it at two men who were standing
in close proximity to an occupied building. The appellate court concluded the jury
reasonably could have inferred the defendant fired his rifle directly at or in close
proximity to an occupied building under circumstances showing a conscious disregard for
the probability one or more bullets would hit the building or persons in or around it;
hence, substantial evidence supported the giving of an instruction on section 246.
(People v. Overman, supra, at p. 1362.) The court also found there was evidence the
defendant violated section 246.3 and not section 246, however. No witnesses saw where
the defendant was pointing his rifle at the time he fired; the defendant was an excellent
marksman and there was evidence concerning the trajectory of bullets fired from his type
of rifle, suggesting he would have hit whatever he aimed at; and no bullet holes or points
of impact were found on the building. Because jurors could have found the defendant
fired his rifle under circumstances showing a grossly negligent disregard for human life
in that he fired in the general vicinity of several persons, while also finding he did not fire

39.
directly at or in close proximity to an occupied building, the court concluded, the trial
court erred in failing to instruct on a violation of section 246.3, subdivision (a) as a lesser
included offense. (People v. Overman, supra, at pp. 1362-1363.)
We have summarized the pertinent evidence, ante. Only speculation would permit
a conclusion defendants did not fire in close proximity to Eric C.’s occupied vehicle.
Accordingly, the trial court was not required to instruct, sua sponte, on section 246.3,
subdivision (a) with respect to count 5.
B. Failure to Give Unanimity Instruction
Jurors were instructed that a person could be found guilty of a crime either
because he or she directly committed the crime, or because he or she aided and abetted a
perpetrator who directly committed the crime. Jurors were also instructed that the People
had the burden of proving beyond a reasonable doubt that it was the defendant who
committed the crime, and that their verdict must be unanimous. Jurors were not given
CALCRIM No. 3500 or a similar instruction, however.28
Defendants now contend their convictions on counts 1 through 5 must be reversed
because the trial court failed to instruct jurors they must unanimously agree on the
identity of the shooter. They say such an instruction was required because the prosecutor
failed to elect a specific theory on which to prove the charges. They further assert a
factual issue — which witness to believe, and which factual scenario to accept — was in
question, and not merely a theory of liability. We reject defendants’ arguments and find
no error.

28 CALCRIM No. 3500 provides: “The defendant is charged with [in Count ___] [sometime during the period of ___ to
___]. [¶] The People have presented evidence of more than one act to prove that the
defendant committed this offense. You must not find the defendant guilty unless you all
agree that the People have proved that the defendant committed at least one of these acts
and you all agree on which act (he/she) committed.”

40.
 A jury verdict in a criminal case must be unanimous. (Ramos v. Louisiana (2020)
590 U.S. ___, ___ [140 S.Ct. 1390, 1397]; People v. Russo (2001) 25 Cal.4th 1124,
1132.) As noted, the court here so instructed the jury.

“Additionally, the jury must agree unanimously the defendant is guilty of a
specific crime. [Citation.] Therefore, cases have long held that when the
evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the
same criminal act. [Citations.]

“This requirement of unanimity as to the criminal act ‘is intended to
eliminate the danger that the defendant will be convicted even though there
is no single offense which all the jurors agree the defendant committed.’
[Citation.] . . . ‘The [unanimity] instruction is designed in part to prevent
the jury from amalgamating evidence of multiple offenses, no one of which
has been proved beyond a reasonable doubt, in order to conclude beyond a
reasonable doubt that a defendant must have done something sufficient to
convict on one count.’ [Citation.]

“On the other hand, where the evidence shows only a single discrete
crime but leaves room for disagreement as to exactly how that crime was
committed or what the defendant’s precise role was, the jury need not
unanimously agree on the basis or, as the cases often put it, the ‘theory’
whereby the defendant is guilty. [Citation.]” (People v. Russo, supra, 25
Cal.4th at p. 1132.)
We review the trial court’s decision whether to give a unanimity instruction de
novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.) Even absent a request, a
trial court should give a unanimity instruction “ ‘where the circumstances of the case so
dictate.’ [Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1199.) “The key to
deciding whether to give the unanimity instruction lies in considering its purpose. The
jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors
believed the defendant guilty of one crime and other jurors believed her [or him] guilty of
another. But unanimity as to exactly how the crime was committed is not required.
Thus, the unanimity instruction is appropriate ‘when conviction on a single count could
be based on two or more discrete criminal events,’ but not ‘where multiple theories or

41.
acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In
deciding whether to give the instruction, the trial court must ask whether (1) there is a
risk the jury may divide on two discrete crimes and not agree on any particular crime, or
(2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to
the exact way the defendant is guilty of a single discrete crime. In the first situation, but
not the second, it should give the unanimity instruction.” (People v. Russo, supra, 25
Cal.4th at pp. 1134-1135.)
“[A]s long as each juror is convinced beyond a reasonable doubt that defendant is
guilty of [the charged offense] as that offense is defined by statute, it need not decide
unanimously by which theory he is guilty. [Citations.] More specifically, the jury need
not decide unanimously whether defendant was guilty as the aider and abettor or as the
direct perpetrator. [Citations.] This rule of state law passes federal constitutional
muster.” (People v. Santamaria (1994) 8 Cal.4th 903, 918-919, citing Schad v. Arizona
(1991) 501 U.S. 624; accord, e.g., People v. Wilson (2008) 44 Cal.4th 758, 801-802;
People v. Russo, supra, 25 Cal.4th at p. 1133; People v. Majors (1998) 18 Cal.4th 385,
408.)
Defendants’ claim juror unanimity was required with respect to the identity of the
shooter is, at its foundation, a claim jurors had to agree unanimously on which defendant
(if not both) was the direct perpetrator and which one was the aider and abettor. Clearly,
such unanimity was not required. The prosecutor was not obligated to elect the specific
theory on which to prove the charges, and the trial court was not required to instruct
jurors they must unanimously agree on a theory.
Defendants’ attempts to cast their claims as something different are not persuasive.
Jacobs says the theories of liability were inconsistent and conflicting. Washington
agrees, and expounds on the contention by asserting there was evidence from which the
jury could have found he was guilty “of one offense, personally firing at the victims, but

42.
not the other offense, which was assisting Jacobs, who personally fired the gun. And vice
versa.” (Italics added.)
The basis for defendants’ apparent belief that different forms of criminal liability
— direct perpetrator versus aider and abettor — give rise to separate offenses escapes us.
We are aware of no authority for such a proposition in California law. That the evidence
may have presented competing factual scenarios and determinations of witness credibility
neither changes this nor means a unanimity instruction was required.
“The Legislature has determined those who aid and abet and those who actually
perpetrate the offense are principals and equally culpable. (§ 31.) Clearly, criminal law
is ultimately concerned with ascribing criminal responsibility for discrete events. This is
done by defining crimes . . . and by determining who will be responsible for those crimes,
for example, aider and abettors and direct perpetrators. Once the discrete event is
identified, for example, the killing of a particular human being, the theory each individual
juror uses to conclude the defendant is criminally responsible need not be the same and,
indeed, may be contradictory.” (People v. Davis (1992) 8 Cal.App.4th 28, 45.) Thus,
“[n]ot only is there no unanimity requirement as to the theory of guilt, the individual
jurors themselves need not choose among the theories, so long as each is convinced of
guilt. Sometimes, as [may have] occurred here, the jury simply cannot decide beyond a
reasonable doubt exactly who did what. There may be a reasonable doubt that the
defendant was the direct perpetrator, and a similar doubt that he was the aider and
abettor, but no such doubt that he was one or the other.” (People v. Santamaria, supra, 8
Cal.4th at p. 919.)29 “Here, the jury need not have unanimously agreed on which
accomplice personally [fired the shots] and which aided or abetted the [resulting crimes].
[Citation.]” (People v. Gomez (2018) 6 Cal.5th 243, 279.)

29 The jury’s note, which we mentioned ante, suggests jurors did indeed agree who
was the direct perpetrator and who was the aider and abettor.

43.
 IV
SENTENCING CLAIMS
Defendants challenge portions of their sentences on several grounds. We address
each in turn.
A. The Sentences
1. Washington
The probation officer’s report, which was completed and filed January 2, 2018,
listed a birthdate for Washington that made him 19 years old when the offenses were
committed. His prior criminal record consisted of convictions for driving without a
license (Veh. Code, § 12500, subd. (a)) and assault with a firearm (§ 245, subd. (a)(2)),
for the latter of which he was on probation at the time of his arrest in the present case.
The total recommended sentence was 27 years 4 months plus 165 years to life in
prison. In pertinent part, the probation officer observed that the section 12022.53,
subdivision (d) enhancements subjected Washington to an additional term of 25 years to
life on each count as to which they were found true and that, pursuant to section
12022.53, subdivision (f), the court “shall” impose the enhancement carrying the greatest
term. The officer recommended imposition of the section 12022.53, subdivision (d)
enhancement on counts 1, 2, and 5, and that the enhancements found true under
subdivisions (b) and (c) of section 12022.53 be stayed. The probation officer noted
Washington had been found to have suffered a prior serious felony conviction pursuant to
section 667, subdivision (a)(1), and so he was subject to imposition of a consecutive term
of five years on counts 1 through 7; however, it was recommended the enhancement be
imposed only on count 1 and stayed as to the remaining counts.
With respect to Washington’s financial status, the probation officer’s report
related that although Washington had never been employed, he was youthful and in good
health, with the ability to obtain employment in state prison. Accordingly, the probation
officer recommended Washington be held accountable to pay all fines and fees as

44.
prescribed by the court, including a $10,000 restitution fine pursuant to section 1202.4,
subdivision (b).
Sentence was imposed on January 9, 2018. This took place:

“[THE COURT:] . . . [T]his Court heard the trial testimony in this
was basically that the defendant used a firearm in, I’ll say, protecting his
turf by chasing down one suspect, being confronted by one victim, being
confronted by another victim, shooting at the victim and then running
away.

“Unfortunately, these shots did not just go toward the victim but
there were also two innocent children that were in their own yards, if you
will, or within the confines of their own housing area that also got hit, and
but for the grace of God could have been dead.

“One, of course, will always bare [sic] a scar across her chest where
she got hit. The other one will probably have minor scars that will heal
with time. The mere fact is that they were innocent children, and the
violence that the gangs perpetrate on society, society stays [sic] deal with
them.

“And the evidence that was presented was straight forward and the
counts in this matter were basically very straight forward counts; two
attempted murders for two victims, two assault with deadly weapons for
two other minor victims, and then I should also state that there was another
victim in that he was just driving through the area with his children in his
vehicle also got hit.

“And then, of course, being a felon in possession. The Court is
inclined to follow the recommendations of the probation department in this
matter. At this point in time, I will listen to arguments . . . .”
Washington’s attorney observed that Washington was 20 years old and had a
minimum criminal record, and that his record doubled his sentence. Counsel asked the
court, based on these facts, to impose the mitigated terms on counts 3, 4, 6, and 7, and as
to the firearm enhancements on counts 3 and 4. The prosecutor asked the court to adopt
its indicated sentence. This ensued:

“THE COURT: The Court has considered this matter. I am
cognizant of the defendant being 20 years of age.

45.
 “I’m cognizant of his and aware of his probation violation case as
well because I’m the one that put him on probation finding unusual
circumstances due to his age at the time I put him on probation.

“Now, at this point in time there are five victims that I must, that
society needs to, five victims in this matter and society needs to impose
punishment. There are separate victims and therefore that is one of the
reasons for the consecutive sentencing.

“I did consider the fact that Counts 1 and 2, I should run concurrent
given the age and the lack of criminal record. There’s no way that I could
ever consider running 3 and 4 concurrent because each individual victim
needs some sort of relief from the Court by imposing punishment.
[¶] . . . [¶]

“[COUNSEL FOR WASHINGTON]: Your Honor, for the record, I
also considered that as part of my argument; however, I did some research
and I’m not sure that legally they can be run concurrent because of the
strike prior, so that is why I did not argue that point.

“THE COURT: Accepted. I took more than a few hours to consider
how I would do the sentence in the matter, and while it’s not impossible for
me to do, I understand it’s within my discretion and the findings that I
would have to make in order to do that. [¶] . . . [¶]

“Count 5 is another individual victim in the matter that deserves
some sort of retribution in the matter and then, of course, Count 6 is the
gang which I will stay as recommended.”
The court then proceeded to impose sentence as follows:
Count 1: The court imposed a term of 30 years to life for premeditated attempted
murder with the gang enhancement, plus 25 years to life pursuant to section 12022.53,
subdivision (d) enhancement, plus five years for the section 667, subdivision (a)
enhancement.30 It also imposed 10- and 20-year enhancements pursuant to section
12022.53, subdivisions (b) and (c), respectively, but stayed them pursuant to section
12022.53, subdivision (f).

30 Although not expressly stated, it is apparent the 30-year portion of the sentence
imposed in counts 1, 2, and 5 was derived from the minimum parole eligibility date
specified in section 186.22, subdivision (b)(4) and (5), doubled for the strike.

46.
 Count 2: The court imposed the same sentence as for count 1, except the section
667, subdivision (a) enhancement was stayed.
Count 3: The court imposed the upper term of four years, doubled to eight years
by the strike, for the violation of section 245, subdivision (a)(2), plus it chose the upper
term of 10 years for the section 12022.5, subdivision (a) enhancement, and it imposed but
stayed a 10-year term for the gang enhancement and the five-year term for the prior
conviction. The court explained that it chose the upper terms because, based on the
evidence it heard at trial, it found Washington’s actions “egregious.”
Count 4: Because it chose to impose a consecutive sentence on this count, the
court opted for the middle term of three years, doubled to six years by the strike. It
imposed a consecutive term of one year four months (one-third of the middle term of four
years) for the firearm enhancement, and imposed but stayed a 10-year term for the gang
enhancement and the five-year term for the prior conviction.
Count 5: The court imposed a term of 30 years to life for shooting at an occupied
vehicle plus the gang enhancement, plus 25 years to life for the section 12022.53,
subdivision (d) enhancement. It imposed but stayed enhancements pursuant to section
12022.53, subdivisions (b) and (c), and section 667, subdivision (a).
Count 6: The court imposed the middle term of five years, then stayed it pursuant
to section 654. It also imposed but stayed the five-year enhancement for the prior
conviction.
Count 7: The court imposed the middle term of four years, which it noted would
be one year four months if run consecutively, but stayed the sentence pursuant to section
654.
The total term imposed was 27 years 4 months plus 165 years to life.31

31 This included a consecutive term of one year (one-third the middle term) in the
probation violation case.

47.
 With respect to financial obligations, the court ordered Washington to pay a
$10,000 restitution fine pursuant to section 1202.4, subdivision (b). It imposed but
stayed a parole revocation restitution fine (§ 1202.45) in the same amount. It also
ordered Washington to pay a court operations assessment (§ 1465.8) in the amount of
$280, and a court facilities funding assessment (Gov. Code, § 70373, subd. (a)(1)) in the
amount of $210. Restitution to the victims was reserved.32
2. Jacobs
The probation officer’s report, which was completed and filed January 2, 2018,
listed a birthdate for Jacobs that made him 18 years old when the offenses were
committed. His prior criminal record consisted of a conviction for drunk driving (Veh.
Code, § 23153, subd. (e)), and he had three referrals to the probation department as a
juvenile for misdemeanor violations of the Penal Code that were handled informally.
The total recommended sentence was 16 years 4 months plus 120 years to life in
prison. In pertinent part, the probation officer observed that the section 12022.53,
subdivision (d) enhancements subjected Jacobs to an additional term of 25 years to life on
each count as to which they were found true and that, pursuant to section 12022.53,
subdivision (f), the court “shall” impose the enhancement carrying the greatest term. The
officer recommended imposition of the section 12022.53, subdivision (d) enhancement
on counts 1, 2, and 5, and that the enhancements found true under subdivisions (b) and
(c) of section 12022.53 be stayed.
With respect to Jacobs’ financial status, the probation officer’s report related that
Jacobs was youthful and in good health, with the ability to obtain employment in state
prison. Accordingly, the probation officer recommended Washington be held

32 The court also reiterated the financial obligations previously ordered in the
probation case, i.e., a $300 restitution fine, $40 court operations assessment, and $30
court facilities funding assessment. It also ordered payment of the previously stayed fine
pursuant to section 1202.44.

48.
accountable to pay all fines and fees as prescribed by the court, including a $10,000
restitution fine pursuant to section 1202.4, subdivision (b).
Jacobs was sentenced immediately after Washington. After recounting the
circumstances of the case and making comments similar to those it made at the outset of
Washington’s sentencing hearing, the court observed:

“The Court — well, society requires that retribution be sought with
respect to its victims. The Court can think of — the mere fact that gangs
are involved, people somehow think that they’re disrespected because other
people walk through their quote ‘turf’ or ‘territory’ is ridiculous and
cowardice.

“And then to shoot weapons in an area that is just where there are
numerous people, again, just shows how ridiculous the situation, how
dangerous gangs have become in this matter.

“This defendant is 19, 20 years of age. He has no criminal record
whatsoever. However, his involvement in this crime belies his age.”
The court then stated it intended to follow the recommendation of the probation
department, but it invited counsel to comment. Counsel for Jacobs asked the court to
consider Jacobs’s age and, where applicable, to minimize the sentence and make it
concurrent. The prosecutor submitted the matter.
The court then proceeded to impose sentence as follows:
Count 1: The court imposed a term of 15 years to life for the premeditated
attempted murder with the gang enhancement, plus 25 years to life pursuant to section
12022.53, subdivision (d) enhancement. It also imposed 10- and 20-year enhancements
pursuant to section 12022.53, subdivisions (b) and (c), respectively, but stayed them
pursuant to section 12022.53, subdivision (f).
Count 2: The court imposed the same sentence as for count 1.
Count 3: The court imposed the upper term of four years for the offense, plus the
upper term of 10 years for the firearm enhancement. It elected the upper term “due to the
egregious nature of the conduct.” It imposed but stayed a 10-year gang enhancement.

49.
 Count 4: Because it chose to impose a consecutive sentence on this count, the
court opted for the middle term of three years for the offense, as well as the middle term
of four years for the firearm enhancement. It imposed but stayed a 10-year term for the
gang enhancement.
Count 5: The court imposed a term of 15 years to life for shooting at an occupied
vehicle plus the gang enhancement, plus 25 years to life for the section 12022.53,
subdivision (d) enhancement. It imposed but stayed enhancements pursuant to section
12022.53, subdivisions (b) and (c).
Count 6: The court imposed the middle term of two years, one-third of which was
eight months, then stayed it pursuant to section 654.
The total term imposed was 16 years 4 months plus 120 years to life.
With respect to financial obligations, the court ordered Jacobs to pay a $10,000
restitution fine pursuant to section 1202.4, subdivision (b). It imposed but stayed a parole
revocation restitution fine (§ 1202.45) in the same amount. It also ordered Jacobs to pay
a court operations assessment (§ 1465.8) in the amount of $280, and a court facilities
funding assessment (Gov. Code, § 70373, subd. (a)(1)) in the amount of $210.
Restitution to the victims was reserved.
B. The Section 667, Subdivision (a) Enhancement
At the time Washington was sentenced, trial courts lacked discretion to strike or
dismiss a five-year serious felony enhancement. (§§ 667, former subd. (a)(1), 1385,
former subd. (b).) This bar was removed by Senate Bill No. 1393 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1013, §§ 1-2), which went into effect on January 1, 2019.
Washington contends the amendments apply retroactively to him because his
convictions are not yet final, and the matter must be remanded so the trial court can
consider whether to strike the enhancements. (See In re Estrada (1965) 63 Cal.2d 740,
744; People v. Garcia (2018) 28 Cal.App.5th 961, 973.) The Attorney General agrees, as

50.
do we. The trial court exercised some leniency in its sentencing choices. Based on its
statements and sentencing decisions, we cannot say a remand would be futile.33
C. The Firearm Enhancements
One day before the probation officer’s report was filed and eight days before
sentencing, Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1-2)
(Senate Bill No. 620) went into effect. It amended sections 12022.5, subdivision (c) and
12022.53, subdivision (h) so as to afford trial courts discretion to strike or dismiss, in the
interest of justice pursuant to section 1385, firearm enhancements under either statute.34
Defendants say they are entitled to a remand to permit the trial court to exercise its
discretion, because it sentenced them without knowledge of its discretionary authority.
“ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that “informed discretion”
than one whose sentence is or may have been based on misinformation regarding a
material aspect of a defendant’s record.’ [Citation.] In such circumstances, [the
California Supreme Court has] held that the appropriate remedy is to remand for
resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached
the same conclusion ‘even if it had been aware that it had such discretion.’ [Citations.]”
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)

33 We express no opinion as to how the trial court should exercise its discretion. If,
after remand, there is no change in sentence with respect to the section 667, subdivision
(a) enhancements, the abstract of judgment must be corrected to reflect those
enhancements were imposed but stayed with respect to counts 2 and 5. (See People v.
Mesa (1975) 14 Cal.3d 466, 471; People v. Zackery (2007) 147 Cal.App.4th 380, 385.)
34 Prior to the effective date of Senate Bill No. 620, section 12022.5, former
subdivision (c) and section 12022.53, former subdivision (h) precluded the striking of an
allegation or finding under the applicable statute notwithstanding section 1385 or any
other provision of law.

51.
 However, “ ‘[p]erhaps the most fundamental rule of appellate law is that the
judgment challenged on appeal is presumed correct, and it is the appellant’s burden to
affirmatively demonstrate error.’ [Citation.] ‘ “We must indulge in every presumption to
uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate
error — it will not be presumed. [Citation.]” [Citations.]’ [Citation.] . . . [T]he
defendant further bears the burden to provide a record on appeal which affirmatively
shows that there was an error below, and any uncertainty in the record must be resolved
against the defendant. [Citations.]” (People v. Sullivan (2007) 151 Cal.App.4th 524,
549; see People v. Giordano (2007) 42 Cal.4th 644, 666.) Moreover, “ ‘[i]t is a basic
presumption indulged in by reviewing courts that the trial court is presumed to have
known and applied the correct statutory and case law in the exercise of its official duties.
[Citations.]’ [Citation.]” (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) “These
general rules concerning the presumption of regularity of judicial exercises of discretion
apply to sentencing issues. [Citations.]” (People v. Mosley (1997) 53 Cal.App.4th 489,
496-497.) “From a silent record, we cannot determine the sentencing court
misunderstood its authority or discretion.” (People v. White Eagle (1996) 48 Cal.App.4th
1511, 1523.)
The Attorney General contends the record here is silent; hence, we must presume
the trial court was aware of its eight-days-old discretion under Senate Bill No. 620.
Defendants point to the newness of the amendment to sections 12022.5, subdivision (c)
and 12022.53, subdivision (h), as well as the facts neither the probation officer’s report
nor the parties mentioned the new law, and the court indicated no awareness of it despite
mentioning a change in the law concerning disposal of registered firearms for convicted
felons.
We agree with defendants. It is apparent from the portions of the probation
reports titled “RULE 4.428 – CRITERIA AFFECTING IMPOSITION OF
ENHANCEMENTS” and “RULE 4.447 – LIMITATIONS ON ENHANCEMENTS”

52.
that the probation officer was unaware of the change in the law. The trial court relied on
the probation officer’s analyses, conclusions, and recommendations. In light of the
court’s discussion of its discretion regarding other aspects of sentencing, its failure to
mention its new discretion concerning the firearm enhancements, coupled with the
probation officer’s lack of awareness of same, convince us the presumption has been
overcome and remand is warranted.35
Defendants further argue that upon remand, the trial court can consider imposing
enhancements on counts 1, 2, and 5 pursuant to subdivision (b) or (c) of section
12022.53, instead of the 25-years-to-life term mandated under subdivision (d) of the
statute, if the court declines to strike the enhancements altogether. We agree.
Where, as here, a defendant has been found to have personally used a firearm in
the commission of an offense enumerated in subdivision (a) of section 12022.53, the
statute sets out three different sentence enhancements that depend upon the nature and
consequences of the firearm use. Subdivision (b) specifies a 10-year enhancement for the
personal use of a firearm. Subdivision (c) specifies a 20-year enhancement for the
personal and intentional discharge of a firearm. Subdivision (d) specifies an
enhancement of 25 years to life for the personal and intentional discharge of a firearm
that proximately causes great bodily injury or death. Subdivision (f) of section 12022.53
precludes imposition of more than one term of imprisonment under the statute per person

35 We recognize the trial court had the choice of imposing a consecutive
enhancement of three, four, or 10 years with respect to the firearm enhancements
appended to counts 3 and 4. (§ 12022.5, subd. (a).) It chose the upper term for the
enhancement with respect to count 3, despite the fact counsel for both defendants argued
for a lesser term, and it appears to have chosen the middle term for the enhancement with
respect to count 4 only because it was statutorily required to do so once it chose to
impose a consecutive term on that count. (See §§ 1170.1, subd. (a), 1170.11.) Because
the trial court was unaware of the scope of its discretion and the matter is being remanded
with respect to the section 12022.53 enhancements, we find it appropriate to include the
section 12022.5 enhancements in our remand order. Again, we express no opinion as to
how the trial court should exercise its discretion.

53.
for each crime, and states that “[i]f more than one enhancement per person is found true
under this section, the court shall impose upon that person the enhancement that provides
the longest term of imprisonment.”
In People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison), the Court of Appeal
held that an uncharged enhancement under section 12022.53, subdivision (b) or (c) can
be imposed in lieu of an enhancement under subdivision (d) of the statute, if the
subdivision (d) enhancement was unsupported by substantial evidence, was defective or
legally inapplicable in some other respect, or if the trial court struck the subdivision (d)
enhancement pursuant to section 1385. (Morrison, supra, at pp. 222-223.) The appellate
court remanded the matter, because at the time the trial court recalled the defendant’s
sentence in light of newly enacted Senate Bill No. 620, no published case had held that an
uncharged lesser enhancement could be imposed in place of an enhancement under
section 12022.53, subdivision (d), in connection with striking the greater enhancement.
(Morrison, supra, at pp. 220, 224.)
In the present case, all three section 12022.53 enhancements were alleged and
found true by the jury. Morrison acknowledged that in such circumstances, “the striking
of an enhancement under section 12022.53, subdivision (d) would leave intact the
remaining findings, and an enhancement under the greatest of those provisions would be
mandatory unless those findings were also stricken in the interests of justice.” (Morrison,
supra, 34 Cal.App.5th at p. 222.) Although we have disagreed with Morrison’s
reasoning and conclusion with respect to a trial court’s ability to substitute an uncharged
lesser enhancement upon striking or dismissing a section 12022.53, subdivision (d)
enhancement (People v. Tirado (2019) 38 Cal.App.5th 637, 640, 643-644, review granted
Nov. 13, 2019, S257658), as have other intermediate courts (e.g., People v. Garcia
(2020) 46 Cal.App.5th 786, 788, 790-794, review granted June 10, 2020, S261772;
People v. Yanez (2020) 44 Cal.App.5th 452, 458-460, review granted Apr. 22, 2020,
S260819), we have recognized that where all three section 12022.53 enhancements are

54.
alleged and found true, a trial court has discretion to strike the section 12022.53,
subdivision (d) enhancement and then either impose one of the other two enhancements
or strike them as well (People v. Tirado, supra, 38 Cal.App.5th at p. 644, review
granted).
D. Franklin and Related Issues
Defendants contend the matter must be remanded to afford them the opportunity to
present evidence and information relevant to their eventual youth offender parole
hearings, pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). Washington
additionally disputes the notion he is ineligible for such a hearing, but says if he is
ineligible, then (1) section 3051, subdivision (h) violates equal protection, and (2) his
sentence violates the proscriptions of the federal and state Constitutions against cruel
and/or unusual punishment. We reject defendants’ claims.
Generally speaking, a person who was sentenced to a lengthy prison term for an
offense committed when he or she was age 25 or younger, is entitled to a youth offender
parole hearing. (§ 3051, subd. (a)(1).) When assessing a prisoner’s suitability for parole,
the parole board is required to “give great weight to the diminished culpability of youth
as compared to adults, the hallmark features of youth, and any subsequent growth and
increased maturity of the prisoner . . . .” (§ 4801, subd. (c); see § 3051, subd. (f)(1).)
In Franklin, supra, 63 Cal.4th at pages 283 through 284, the California Supreme
Court reasoned that the foregoing statutes “contemplate that information regarding the
juvenile offender’s characteristics and circumstances at the time of the offense will be
available at a youth offender parole hearing to facilitate the [parole board’s]
consideration. . . . Assembling . . . statements ‘about the individual before the crime’ is
typically a task more easily done at or near the time of the juvenile’s offense rather than
decades later . . . .” (Ibid.)36

36 When first enacted, section 3051 applied to juveniles in the true sense of the word:
offenders under age 18. (Stats. 2013, ch. 312, § 4, eff. Jan. 1, 2014.) The constitutional

55.
 The state high court concluded that Franklin, who was 16 years old when he
committed murder, and who was sentenced before the decisions in Miller and Caballero,
and before the enactment of sections 3051 and 4801 (Franklin, supra, 63 Cal.4th at
p. 268), may not have had an adequate opportunity at sentencing “to make a record of
mitigating evidence tied to his youth” (id. at p. 269). Accordingly, it remanded the
matter not for resentencing, but to permit the trial court to determine “whether Franklin
was afforded sufficient opportunity to make a record of information relevant to his
eventual youth offender parole hearing.” (Id. at p. 284.) If Franklin did not have
sufficient opportunity, the trial court was empowered to receive pertinent evidence and
information from both parties, with “[t]he goal of any such proceeding [being] to provide
an opportunity for the parties to make an accurate record of the juvenile offender’s
characteristics and circumstances at the time of the offense so that the [parole board],
years later, may properly discharge its obligation to ‘give great weight to’ youth-related
factors [citation] in determining whether the offender is ‘fit to rejoin society’ despite
having committed a serious crime ‘while he was a child in the eyes of the law’
[citation].” (Ibid.)
Although little, if any, information contemplated by Franklin was presented at
sentencing, we conclude defendants are not entitled to a remand. People v. Woods (2018)
19 Cal.App.5th 1080 is on point:

“Unlike the defendant in Franklin, defendant was 19 years old at the time
of his offense and thus he was not subjected to a sentence that violated
constitutional principles prohibiting a minor from being sentenced to the
functional equivalent of life without parole without considering how minors

underpinnings of the statute, as discussed in Graham v. Florida (2010) 560 U.S. 48,
Miller v. Alabama (2012) 567 U.S. 460, and People v. Caballero (2012) 55 Cal.4th 262
(see Franklin, supra, 63 Cal.4th at p. 277), also distinguish between juveniles and adults.
Our state Legislature has since expanded the scope of the statute, first to offenders under
age 23 (Stats. 2015, ch. 471, § 1, eff. Jan. 1, 2016), and most recently to offenders age 25
or younger (Stats. 2017, ch. 675, § 1, eff. Jan. 1, 2018).

56.
 are different from adults and how those differences counsel against
irrevocably sentencing a minor to a lifetime in prison. Moreover, unlike the
defendant in Franklin, defendant was not sentenced at a time when youth
offender parole hearings were not yet part of California law. Defendant is
entitled to a youth offender parole hearing under . . . section 3051, but not
because he was sentenced to the functional equivalent of life without parole
for a crime committed when he was a minor. Rather, he is entitled to a
youth offender parole hearing only because the California Legislature
decided, effective beginning [o]n January 1, 2016, that youth offender
parole hearings should be afforded to ‘any prisoner who was 25 years of
age or younger . . . .’ [Citation.] Thus, unlike the situation in Franklin,
when defendant was sentenced in this case . . . section 3051 was already in
place and had already been amended to encompass offenders like him . . .
25 years of age or younger, and subdivision (c) of . . . section 4801 already
identified the various factors to be considered at a youth offender parole
hearing. Thus unlike the defendant in Franklin, defendant had both the
opportunity and incentive to put information on the record related to a
future youth offender parole hearing.

“Under these circumstances, there is no reasonable basis for
concluding, as defendant argues, that defendant was denied a sufficient
opportunity to put on the record the kinds of information that . . . sections
3051 and 4801, subdivision (c) deem relevant at a youth offender parole
hearing.” (People v. Woods, supra, 19 Cal.App.5th at pp. 1088-1090,
italics added; accord, People v. Medrano (2019) 40 Cal.App.5th 961, 963;
cf. People v. Rodriguez (2018) 4 Cal.5th 1123, 1131-1132; In re Loza
(2018) 27 Cal.App.5th 797, 807; People v. Jones (2017) 7 Cal.App.5th 787,
819.)
That we find no reason to order a remand does not preclude Jacobs from making a
pertinent record, however. In In re Cook (2019) 7 Cal.5th 439, 446-447, the California
Supreme Court held that an offender whose conviction is final may file a motion in the
trial court under section 1203.01 for the purpose of making a record to preserve evidence
of youth-related factors. Accordingly, our rejection of Jacobs’s Franklin claim is without
prejudice to Jacobs “filing a motion in the trial court for a Franklin proceeding under the

57.
authority of section 1203.01” and Cook, supra, at page 460. (See People v. Medrano,
supra, 40 Cal.App.5th at p. 963.)37
Washington stands in a different position. In pertinent part, subdivision (h) of
section 3051 provides: “This section shall not apply to cases in which sentencing occurs
pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of Section 667, or Section
667.61, or to cases in which an individual is sentenced to life in prison without the
possibility of parole for a controlling offense that was committed after the person had
attained 18 years of age.” Although Washington’s age qualifies him as a youth offender,
he was sentenced under the three strikes law. (§§ 667, subds. (b)-(i), 1170.12.)
Accordingly, he is not eligible for a youth offender parole hearing. (People v. Wilkes
(2020) 46 Cal.App.5th 1159, 1164.)
Washington disagrees. He says section 3051 can reasonably be read to exclude
from eligibility persons whose life sentences were generated under the three strikes law,
i.e., a third-strike offender. Because he is a second-strike offender who received life
terms under statutory provisions other than those contained in sections 667, subdivisions
(b) through (i) and 1170.12, his argument runs, and because section 3051 is unclear, we
should apply the rule of lenity and find him eligible for a youth offender parole hearing.
We are not persuaded. The express language of the first sentence of section 3051,
subdivision (h) refers to “cases in which sentencing occurs” pursuant to the three strikes

37 Jacobs says that if we find forfeiture for failure to object, then he received
ineffective assistance of counsel. Technically, we have not found the issue forfeited. In
any event, we will not resolve such a claim when it is made for the first time in a reply
brief. (See People v. Duff, supra, 58 Cal.4th at p. 550, fn. 9.) Were we to reach the
claim, we would reject it, because we do not know what information counsel might have
presented and Jacobs can still present such information under section 1203.01 and Cook.
Accordingly, the record on appeal establishes neither deficient performance nor
prejudice. (See People v. Cunningham (2001) 25 Cal.4th 926, 1003; People v. Kipp
(1998) 18 Cal.4th 349, 367; see generally Strickland v. Washington (1984) 466 U.S. 668,
687-694.)

58.
law (italics added), not to “cases in which a life sentence is imposed” pursuant to the
three strikes law. Moreover, the language of the remainder of the first sentence makes it
clear the Legislature knew how to distinguish between sentencing in general and an
individual’s controlling offense in particular.38
Without citation to any authority, Washington asserts: “Section 3051 was enacted
to address parole eligibility on a life term. The statutory language should be interpreted
to give effect to the Legislature’s intent, which did not extend to exclusion of second
strikers who happen to be subject to a life term for some other reason. In context it is
only reasonable to interpret the ineligibility exception to apply only to persons whose life
term was generated through the Three Strikes law.”
But section 3051 does not address parole eligibility only for life terms.
Subdivision (b)(1) of the statute specifies that the parole eligibility date for persons
convicted of a controlling offense committed when the person was 25 years of age or
younger and for which the sentence is a determinate term is during the person’s 15th year
of incarceration. A determinate term can be lengthy enough to trigger this provision
without being the equivalent of a life term. Moreover, we have examined the legislative
history of section 3051, which was added by Senate Bill No. 260 (2013-2014 Reg. Sess.)
(Stats. 2013, ch. 312, § 4). It is clear the Legislature did not intend to narrow ineligibility
in the way Washington contends, but rather always sought broadly to exclude from the
law’s coverage any otherwise eligible individual who was sentenced as a strike offender.
(See, e.g., Sen. Com. on Public Safety, Rep. on Sen. Bill No. 260 (2013-2014 Reg. Sess.)
as amended Apr. 4, 2013, p. 4, at [as of Oct. 29, 2020]; Assem. Com.
on Public Safety, Rep. on Sen. Bill No. 260 (2013-2014 Reg. Sess.) as amended June 27,

38 Subdivision (a)(2)(B) of section 3051 defines “ ‘[c]ontrolling offense’ ” as “the
offense or enhancement for which any sentencing court imposed the longest term of
imprisonment.”

59.
2013, p. 2, at [as of Oct. 29, 2020]; Sen. Com. on
Public Safety, Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 260
(2013-2014 Reg. Sess.) as amended Sept. 3, 2013, p. 2, at
[as of Oct. 29, 2020].)
“ ‘ “[T]he most reliable indicator of legislative intent” ’ is generally the language
of a statute . . . .” (In re Jones (2019) 42 Cal.App.5th 477, 482.) Here, the express
language of section 3051, subdivision (h) excludes from youth offender parole hearings
cases in which “sentencing” occurs pursuant to the three strikes law. Washington was
sentenced pursuant to the three strikes law. Although that law was not the genesis of his
life terms, neither the statutory language nor the ascertainable legislative intent requires
that he have been sentenced to a life term as a third-strike offender. Nor does the rule of
lenity assist him. “ ‘The rule of statutory interpretation that ambiguous penal statutes are
construed in favor of defendants is inapplicable unless two reasonable interpretations of
the same provision stand in relative equipoise, i.e., that resolution of the statute’s
ambiguities in a convincing manner is impracticable.’ [¶] Thus, although true
ambiguities are resolved in a defendant’s favor, an appellate court should not strain to
interpret a penal statute in defendant’s favor if it can fairly discern a contrary legislative
intent.” (People v. Avery (2002) 27 Cal.4th 49, 58.) Here, the “contrary legislative
intent” is undeniable.
Washington says that without youth offender parole eligibility, his sentence
violates federal and state constitutional equal protection guarantees.39 Relying primarily
on People v. Edwards (2019) 34 Cal.App.5th 183 (Edwards), he contends section 3051,

39 We permitted Washington to file a very belated supplemental brief raising this
issue.

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subdivision (h) violates the equal protection clauses of the federal and state Constitutions
by excluding young adults convicted and sentenced for a second strike offense from
youth offender parole consideration, while young adults convicted of first degree murder
are entitled to such consideration. We conclude the claim lacks merit.40
“The Fourteenth Amendment to the United States Constitution and article I,
section 7 of the California Constitution guarantee all persons the equal protection of the
laws.” (Edwards, supra, 34 Cal.App.5th at p. 195.) “The California equal protection
clause offers substantially similar protection to the federal equal protection clause”
(People v. Laird (2018) 27 Cal.App.5th 458, 469), and our analysis applies to both (see
Manduley v. Superior Court (2002) 27 Cal.4th 537, 572).
To succeed on an equal protection claim, a defendant “must first show that the
state has adopted a classification that affects two or more similarly situated groups in an
unequal manner. [Citation.]” (Edwards, supra, 34 Cal.App.5th at p. 195.) “We consider

40 The Attorney General argues the claim was forfeited because it was not raised in
the trial court. (See, e.g., People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14; People
v. Rogers, supra, 39 Cal.4th at p. 854; People v. Carpenter (1997) 15 Cal.4th 312, 362,
abrogated on another ground in People v. Diaz, supra, 60 Cal.4th at p. 1190 &
superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43
Cal.4th 1096, 1106.) We agree. Equal protection principles are well known among
attorneys practicing criminal law, and claimed violations of equal protection are common
where, as here, a statute carves out an exception that is perceived as detrimental to the
defendant. Although Edwards may have been the first authority for the proposition
subdivision (h) of section 3051 violates equal protection, the opinion did not
“ ‘dramatically depart[] from prior [equal protection] clause case law’ ” (People v.
Pearson (2013) 56 Cal.4th 393, 462). Thus, it did not “represent[] an unforeseen change
in the law ‘that competent and knowledgeable counsel reasonably could [not] have been
expected to have anticipated’ ” at sentencing. (Ibid.; see People v. Edwards (2013) 57
Cal.4th 658, 704-705.)
Nevertheless, we have discretion to address constitutional issues raised on appeal
where the issue presented is a pure question of law that turns on undisputed facts. (In re
Spencer S. (2009) 176 Cal.App.4th 1315, 1323.) We exercise that discretion here to
forestall a future claim of ineffective assistance of trial counsel.

61.
whether the identified groups are similarly situated for the purposes of the challenged
law. [Citations.]” (People v. Laird, supra, 27 Cal.App.5th at p. 469.)
“If groups are similarly situated but treated differently, the state must then provide
a rational justification for the disparity. [Citation.]” (People v. Lynch (2012) 209
Cal.App.4th 353, 458.)

“A criminal defendant has no vested interest ‘ “in a specific term of
imprisonment or in the designation a particular crime receives.” ’
[Citation.] It is both the prerogative and the duty of the Legislature to
define degrees of culpability and punishment, and to distinguish between
crimes in this regard. [Citation.] Courts routinely decline to intrude upon
the ‘broad discretion’ such policy judgments entail. [Citation.] Equal
protection analysis does not entitle the judiciary to second-guess the
wisdom, fairness, or logic of the law. [Citation.]

“Under these principles, equal protection of the law is denied only
where there is no ‘rational relationship between the disparity of treatment
and some legitimate governmental purpose.’ [Citation.] In other words,
the legislation survives constitutional scrutiny as long as there is ‘ “any
reasonably conceivable state of facts that could provide a rational basis for
the classification.” ’ [Citation.] This standard of rationality does not
depend upon whether lawmakers ever actually articulated the purpose they
sought to achieve. Nor must the underlying rationale be empirically
substantiated. [Citation.] While the realities of the subject matter cannot
be completely ignored [citation], a court may engage in ‘ “rational
speculation” ’ as to the justifications for the legislative choice [citation]. It
is immaterial for rational basis review ‘whether or not’ any such
speculation has ‘a foundation in the record.’ [Citations.]” (People v.
Turnage (2012) 55 Cal.4th 62, 74-75.)
“We review an equal protection claim de novo. [Citation.]” (People v. Laird,
supra, 27 Cal.App.5th at p. 469.)
Subdivision (h) of section 3051 carves out exceptions to youth offender parole
eligibility for young adults sentenced under the three strikes law (§§ 667, subds. (b)-(i),
1170.12) and the one strike law (§ 667.61). Edwards found an equal protection violation
with respect to the exclusion of one strike offenders, because, it concluded, such
offenders are similarly situated to first degree murderers (who are not excluded from

62.
eligibility) and there is no rational relationship between the disparity of treatment and a
legitimate governmental purpose. (Edwards, supra, 34 Cal.App.5th at pp. 194-195, 197.)
Not all courts have agreed with Edwards’s finding of no rational relationship, and the
question whether the statute violates equal protection is currently pending before the
California Supreme Court. (People v. Williams (2020) 47 Cal.App.5th 475, 492-493,
review granted July 22, 2020, S262229.)
We need not take a position on whether one strike offenders can constitutionally
be excluded from youth offender parole eligibility, because Washington was sentenced
under the three strikes law. Although he has only one prior strike conviction, he is not
similarly situated to a hypothetical young adult — even a murderer — who has no prior
strike convictions. (See People v. Spears (1995) 40 Cal.App.4th 1683, 1686, 1687.)
Even if we were to find the “similarly situated” threshold met, we would still
reject Washington’s claim of an equal protection violation. This is so because he did not
— and, in our view, cannot — “negate every possible, plausible grounds [sic] for the
disputed disparity . . . .” (People v. Turnage, supra, 55 Cal.4th at p. 75.)
“Statutes that punish recidivists more severely than first offenders have a long
tradition in this country that dates back to colonial times. [Citations.] [¶] States have a
valid interest in deterring and segregating habitual criminals. [Citation.]” (Parke v.
Raley (1992) 506 U.S. 20, 26-27.) “The purpose of section 3051 is ‘to give youthful
offenders “a meaningful opportunity to obtain release” after they have served at least 15,
20, or 25 years in prison [citation] and made “ ‘a showing of rehabilitation and
maturity’ ” ’ and ‘to account for neuroscience research that the human brain — especially
those portions responsible for judgment and decisionmaking — continues to develop into
a person’s mid-20[’]s.’ [Citation.] Assuming a Three Strikes youth offender is similarly
situated to other youth offenders for purposes of section 3051, the Legislature could
rationally determine that the former — ‘a recidivist who has engaged in significant
antisocial behavior and who has not benefited from the intervention of the criminal

63.
justice system’ [citation] — presents too great a risk of recidivism to allow the possibility
of early parole.” (People v. Wilkes, supra, 46 Cal.App.5th at p. 1166.)
Edwards does not support a different conclusion. As that court observed, “The
‘One Strike’ law is an alternative, harsher sentencing scheme that applies to specified
felony sex offenses” (Edwards, supra, 34 Cal.App.5th at p. 192), such that “ ‘a first-time
offense can result in one of two heightened sentences’ ” (id. at p. 193). Thus, the court
noted “that criminal history plays no role in defining a One Strike crime,” and it viewed
the problem as the exclusion of “an entire class of youthful offenders convicted of a
crime short of homicide . . . , regardless of criminal history . . . .” (Id. at p. 199.) “The
distinguishing characteristic of Three Strikes offenders, of course” — even those who,
like Washington, have only one prior strike conviction — “is that they are not being
sentenced for a first-time offense. Thus, the ample authority rejecting equal protection
challenges from Three Strikes offenders did not apply in Edwards.” (People v. Wilkes,
supra, 46 Cal.App.5th at pp. 1166-1167.)
Washington further says that if he is not eligible for a youth offender parole
hearing, then his sentence constitutes cruel and/or unusual punishment in violation of the
federal and state Constitutions. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17; cf.
Franklin, supra, 63 Cal.4th at p. 268.) In light of our remand to permit the trial court to
exercise its discretion with regard to the firearm enhancements, this claim is premature.
If Washington wishes to pursue it, he should raise it in the trial court when those
enhancements are addressed. (See People v. Baker (2018) 20 Cal.App.5th 711, 720;
People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248; People v. Russell (2010) 187
Cal.App.4th 981, 993; People v. Norman (2003) 109 Cal.App.4th 221, 229; People v.
DeJesus (1995) 38 Cal.App.4th 1, 27.)
E. Ability to Pay Fees, Fines, and Assessments
Last, defendants contend that unless supported by a determination of ability to
pay, fees, fines, and assessments imposed at sentencing are unconstitutional. We

64.
conclude defendants forfeited their claims by failing to raise them at sentencing, and the
claims lack merit in any event.
As previously described, the trial court imposed the statutory maximum restitution
fine (§ 1202.4, subd. (b)) of $10,000, a court operations assessment (§ 1465.8) of $280,
and a court facilities funding assessment (Gov. Code, § 70373, subd. (a)(1)) of $210 on
each defendant.41 Defendants did not object to these amounts, which were among the
recommendations contained in the probation officer’s reports.
Defendants contend the court improperly imposed these fines and assessments
without determining whether defendants had the ability to pay those amounts, in violation
of defendants’ due process rights; hence, the monetary obligations must be stayed.42
Defendants’ argument is based on People v. Dueñas (2019) 30 Cal.App.5th 1157, which
was decided after their sentencing hearings and while their appeals were pending.
Dueñas held that “due process of law requires the trial court to conduct an ability to pay
hearing and ascertain a defendant’s present ability to pay” before it imposes any fines or
fees. (Id. at pp. 1164, 1167.)

41 The calculation of the assessments was incorrect as to Jacobs, who was convicted
on six counts, not seven counts as was Washington. As to Jacobs, an assessment in the
amount of $240 should have been imposed pursuant to section 1465.8, and an assessment
in the amount of $180 should have been imposed pursuant to Government Code
section 70373. Although the amounts are correctly shown on Jacobs’s abstract of
judgment, because the abstract of judgment is not the judgment itself (People v. Mitchell
(2001) 26 Cal.4th 181, 185), we find it appropriate to modify the judgment as to Jacobs
to reflect the correct amounts.
42 The question whether a court must consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments and, if so, which party bears the
burden of proof regarding the defendant’s ability to pay, is currently pending review
before the California Supreme Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review
granted Nov. 13, 2019, S257844.)

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 We conclude defendants are not entitled to relief. The situation presented in
Dueñas is markedly distinguishable from the facts of defendants’ case. (See People v.
Lowery (2020) 43 Cal.App.5th 1046, 1054-1055 (Lowery); see also People v. Son (2020)
49 Cal.App.5th 565, 599-601 (conc. & dis. opn. of Franson, Acting P.J.).)
Moreover, even assuming Dueñas applies to this case, defendants have forfeited
any challenge to their alleged inability to pay the monetary obligations that were
imposed. The court ordered them to pay statutory maximum restitution fines of $10,000
each under section 1202.4, subdivision (b). When the court imposes a restitution fine
greater than the statutory minimum of $300, “[s]ection 1202.4 expressly contemplates an
objection based on inability to pay.” (People v. Frandsen (2019) 33 Cal.App.5th 1126,
1153 (Frandsen); accord, Lowery, supra, 43 Cal.App.5th at pp. 1053-1054; People v.
Aviles (2019) 39 Cal.App.5th 1055, 1073 (Aviles).)
While Dueñas had not been decided at the time of defendants’ sentencing
hearings, defendants had the statutory right to object to the $10,000 restitution fines and
demonstrate their inability to pay, and such an objection “would not have been futile
under governing law at the time of [their] sentencing hearing[s].” (Frandsen, supra, 33
Cal.App.5th at p. 1154; accord, Lowery, supra, 43 Cal.App.5th at p. 1054; Aviles, supra,
39 Cal.App.5th at pp. 1073-1074; see People v. Nelson (2011) 51 Cal.4th 198, 227.) Nor
would objections to the assessments imposed under section 1465.8 and Government Code
section 70373 have been futile. “Although both statutory provisions mandate the
assessments be imposed, nothing in the record of the sentencing hearing[s] indicates that
[either defendant] was foreclosed from making the same request that the defendant in
Dueñas made in the face of those same mandatory assessments. [Either defendant]
plainly could have made a record had his ability to pay actually been an issue. Indeed,
[each] was obligated to create a record showing his inability to pay the . . . restitution
fine, which would have served to also address his ability to pay the assessments.”

66.
(Frandsen, supra, 33 Cal.App.5th at p. 1154; accord, Aviles, supra, 39 Cal.App.5th at
p. 1074.)
Even if we agreed with Dueñas and People v. Castellano (2019) 33 Cal.App.5th
485, 489 and concluded defendants did not forfeit the issue, we would still reject their
constitutional claims for the reasons stated in Lowery, supra, 43 Cal.App.5th at pages
1056 through 1057 (no due process violation), 1057 through 1058 (no gross
disproportionality under 8th Amend. to the U.S. Const.), and 1058 through 1060 (no
equal protection violation). We would further find that any error in the trial court’s
failure to conduct a hearing on their ability to pay was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24; Aviles, supra, 39 Cal.App.5th at
p. 1075.) According to the undisputed statements in the probation officer’s reports,
defendants are young and in good health, and have the ability to gain employment while
in prison. We can infer they have the ability to pay their monetary obligations from
probable future wages, including prison wages, while they serve their lengthy prison
terms. (Lowery, supra, 43 Cal.App.5th at p. 1060; Aviles, supra, 39 Cal.App.5th at
pp. 1076, 1077; accord, People v. Son, supra, 49 Cal.App.5th at pp. 603-604 (conc. &
dis. opn. of Franson, Acting P.J.).)
The Attorney General says that because Washington is entitled to have his case
remanded to allow the trial court to consider striking any or all of his section 667,
subdivision (a) enhancements, we should also remand so Washington can request a
hearing and present evidence demonstrating his inability to pay the monetary obligations.
(See People v. Castellano, supra, 33 Cal.App.5th at p. 491.) We decline to include the
ability-to-pay issue in our remand order. Because the issue was forfeited, no remand is
required. (People v. Avila (2009) 46 Cal.4th 680, 729.) The monetary obligations will
not be affected in any way by the trial court’s decision with respect to the prior serious
felony enhancements, as they would be if, for example, we were reversing any of
Washington’s convictions. Accordingly, we see no reason to require the expenditure of

67.
additional judicial resources merely because the trial court is being directed to address a
separate, unrelated issue. (See, e.g., People v. Keene (2019) 43 Cal.App.5th 861, 864,
865; Aviles, supra, 39 Cal.App.5th at p. 1077; People v. Gutierrez (2019) 35 Cal.App.5th
1027, 1033-1034.)
DISPOSITION
As to Jacobs, the judgment is modified to provide for imposition of a court
operations assessment (§ 1465.8) in the amount of $240, and a court facilities funding
assessment (Gov. Code, § 70373) in the amount of $180. As so modified, the judgment
is affirmed, without prejudice to Jacobs’s filing a motion for a Franklin proceeding under
the authority of section 1203.01 and In re Cook, supra, 7 Cal.5th at page 460. The matter
is remanded to the trial court with directions to exercise its discretion under sections
12022.5, subdivision (c) and 12022.53, subdivision (h), as amended by Senate Bill
No. 620 (Stats. 2017, ch. 682, §§ 1-2, eff. Jan. 1, 2018), and, if appropriate following
exercise of that discretion, to resentence Jacobs accordingly. The trial court shall cause
to be prepared an amended abstract of judgment that reflects any change in sentence, and
shall further cause a certified copy of same to be transmitted to the appropriate
authorities.
As to Washington, the judgment is affirmed. The matter is remanded to the trial
court with directions to exercise its discretion under sections 667, subdivision (a)(1) and
1385, as amended by Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1013,
§§ 1-2, eff. Jan. 1, 2019) and under sections 12022.5, subdivision (c) and 12022.53,
subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, §§ 1-2, eff.
Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence
Washington accordingly. The trial court shall cause to be prepared an amended abstract
of judgment that reflects any change in sentence, and, if no change, reflects that the
enhancement pursuant to section 667, subdivision (a) was stayed with respect to counts 2

68.
and 5; and the trial court shall cause a certified copy of same to be transmitted to the
appropriate authorities.

DETJEN, Acting P.J.
I CONCUR:

FRANSON, J.

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SMITH, J., Concurring and Dissenting.
I disagree with the majority’s resolution of defendants’ claims under People v.
Dueñas (2019) 30 Cal.App.5th 1157. I would permit defendants to raise their Duenas
claims on remand for resentencing, as the Attorney General proposes. However, in
keeping with People v. Son (2020) 49 Cal.App.5th 565 (lead opn. of Smith, J.), I would
find that defendants are entitled, as a matter of constitutional right, to a determination of
ability to pay only with regard to the court operations assessment pursuant to Penal Code
section 1465.8 and the court facilities funding assessment pursuant to Government Code
section 70373. In all other respects I concur with the majority and vote to affirm.

SMITH, J.