People v. Laanui

Filed 1/8/21
CERTIFIED FOR PARTIAL PUBLICATION†

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B297581

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA095719)
v.

ELLIOT KIMO LAANUI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Edmund Willcox Clarke, Jr., Judge.
Affirmed as modified.
Valerie G. Wass, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant

†Pursuant to California Rules of Court, rules 8.1105(b)
and 8.1110, this opinion is certified for publication, with the
exception of parts A, B, C, D, E, G, H, and I of the Discussion.
Attorney General, Paul M. Roadarmel, Jr. and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

Defendant Elliot Kimo Laanui appeals from the judgment
after his conviction for six offenses committed between 1995 and
2017, including murder, solicitation of murder, and assault with
a firearm. On appeal, defendant argues (1) the trial court abused
its discretion by admitting into evidence an insufficiently
redacted photograph of defendant shown to witnesses for
purposes of identifying skin tone; (2) the prosecution committed
misconduct during closing argument by appealing to the jury’s
sympathy for the murder victim and his family; (3) the trial court
should have granted defendant a new trial in light of the
erroneous admission of the photograph and the prosecutorial
misconduct; (4) imposition of a restitution fine and court
assessments violated defendant’s right to due process;
(5) defendant’s counsel was ineffective to the extent he did not
object to errors below; (6) the trial court erroneously doubled the
sentence on one count based on an unpleaded prior strike
conviction; (7) the trial court imposed a firearm enhancement
under the wrong statute; (8) the trial court wrongly denied
defendant presentence conduct credits; and (9) the minutes failed
to state that the trial court struck five prior prison term
enhancements.
In the published portion of this opinion, we address
defendant’s sixth claim of error, and hold that the information
adequately pleaded the prior strike as to all counts, and the trial
court did not err in doubling the sentences of all eligible offenses.

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 In the unpublished portion of the opinion, we hold that the
trial court did not abuse its discretion by admitting the
photograph, nor was the admission unduly prejudicial. The
contentions regarding prosecutorial misconduct and the
imposition of fines and fees are forfeited, and also fail on the
merits. In the absence of prejudicial error, defendant was not
entitled to a new trial, nor did he demonstrate ineffective
assistance of counsel for purposes of this direct appeal. The
Attorney General agrees with defendant, as do we, that the trial
court imposed a firearm enhancement under the incorrect
statute, that defendant is entitled to conduct credits, and that the
minutes do not reflect the trial court’s striking of the prior prison
term enhancements. We direct the trial court to correct the
errors on which the parties agree, but otherwise affirm the
judgment.

FACTUAL BACKGROUND
We limit our summary of the evidence to the facts relevant
to the resolution of this appeal, and do not attempt to summarize
all evidence presented at trial.

1. Prosecution evidence

a. Murder and solicitation of murder

i. Homicide and initial investigation
On November 11, 1995, Edward Emery (Emery) and his
wife Jacqueline Emery went to a supermarket in Redondo Beach.
After buying some groceries, they returned to their vehicle in the
store parking lot. A man suddenly appeared, grabbed the front of
the shopping cart, and began shooting a gun at Emery. Multiple

3
bullets struck Emery, who fell to the ground. Emery died from
his wounds.
Julia Lindman, who was in the parking lot at the time of
the shooting, heard gunfire and saw a “dark-skinned male”
pointing a gun in her direction and firing it.
Frank Dozier was in a coffee shop near the supermarket
parking lot at the time of the shooting. Through the window of
the coffee shop, Dozier saw a man shooting another man with a
nickel or silver-colored revolver. The shooter then fired at other
people in the parking lot. The shooter got into a dark-colored
minivan, which drove away.
Annette Silas was loading groceries into her car when she
heard gunshots. She did not see the shooter. Silas saw a dark
Chevy Astro van, possibly navy blue, exit the parking lot.
Jacqueline Emery described the shooter as having skin
tone of “[c]offee with cream, a lot of cream.” She testified that
after the shooting she was unable to find her husband’s money
clip. The prosecution suggested robbery as a likely explanation
for the shooting.
Police investigating the crime scene found freshly deposited
saliva on the window of a vehicle in the parking lot. The police
collected samples of the saliva.
In 2011, John Skipper, a retired police captain
investigating unsolved crimes for the Redondo Beach Police
Department, had the saliva analyzed for DNA evidence. 1 The
DNA matched defendant’s profile in a nationwide DNA database.
After further investigation, Skipper determined that defendant

1
According to Skipper, DNA analysis was not
“commonplace” in 1995 when the murder occurred.

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matched the physical profile of the shooter, his residence at the
time was about four miles from the crime scene, and a year before
the murder he had been arrested driving a black Chevy Astro
van.
Corroborating Skipper’s testimony, the prosecution
presented evidence that the DNA in the saliva collected at the
scene of the murder matched defendant’s DNA. The prosecution
also presented a police report indicating defendant was driving a
black Chevy Astro van on August 17, 1994. A registration record
from August 2000 to August 2001 indicated the van was
registered to defendant.

ii. Defendant speaks with jailhouse
informants
In 2012, Skipper learned that defendant had violated his
parole and had him arrested. With the assistance of the Los
Angeles County Sheriff’s Department, Skipper and his partner,
Detective Rick Peterson, arranged a “Perkins operation,” in which
two confidential informants, Jose and Raymond, were placed in a
cell with defendant while wearing body wires.
In order to “stimulate conversation” about the murder
between defendant and the informants, Skipper and Peterson
interviewed defendant. They told him that they were
investigating a murder from 1995, that they suspected he was
involved, and that they had found his DNA at the crime scene.
They mentioned Jonathan Ross, also known as “Never,” a known
confederate of defendant, along with other names, to see if that
would provoke a reaction in defendant. Skipper testified he had
no idea if Ross was involved in the homicide, but knew Ross and
defendant had been arrested together twice before.

5
 Back in the cell with the informants, defendant discussed
the murder investigation with them. In that conversation,
defendant never directly admitted committing the murder, and
indeed appears to have denied it repeatedly. There was extensive
discussion, however, about Ross and the possibility that he had
informed on defendant, the relevant portions of which we
summarize below.
Jose first suggested a “rat” had told the police that
defendant was involved in the murder. Raymond confirmed with
defendant that the police had mentioned Ross, whom Raymond
referred to as Never. Jose said, “Anyone who was there with you
and they were, that’s your fucking mole.” He continued, “There’s
only one way to deal with them. You’re gonna have to get to
them.”
Later, defendant asked the informants what he should do.
Raymond said that maybe the police had Ross and “the other
fool.”2 Jose said, “Eliminate the fucking rat and get rid of the
problem.” Raymond agreed “someone’s telling on you,” and “[i]t
kinda looks like Never . . . .” Jose asked if defendant thought
Ross was informing on him. Defendant said he had also heard
from some “homies” that Ross was “a rata.”
Raymond said defendant could have Ross “whacked, but
that’s up to you.” Jose said he and Raymond could find Ross.

2 The “other fool” presumably was one of the other names
mentioned by Skipper and Peterson when interviewing
defendant. In a later recorded conversation with an undercover
sheriff’s deputy, defendant said the police “mentioned another
name,” but the person had been deported and defendant did not
think that person would inform on him in any event.

6
 Later, Jose again asked if defendant believed Ross
“snitched” on him, and defendant said yes, because Ross had been
“acting weird” as a result of defendant having sex with and
eventually marrying Ross’s girlfriend. Asked what defendant
would do if he got out of custody, defendant said he would go to
Ross and “grab him,” and “get it out of him,” presumably
referring to finding out why Ross informed on him.
After further discussion, Raymond asked, “What are we
gonna do[,] homes? Fucking whack him?” Defendant said,
“Yeah. I need you guys to, uh, help me out. A favor for a favor, it
would be just like the movies.”
Later, under the guise of wanting to make sure Ross was
the correct person to kill, Jose asked if defendant was sure that
Ross “knows what went down, and you know for a fact that it was
him.” Jose said, “Now, if you know that he’s the fucking rat and
he’s the only one that knows, then you tell me that you know that
it[’]s him . . . .” Defendant demurred, stating, “I can’t say all that,
‘cause as far as I know, that shit never happened.” He surmised
from what the police had told him during his interview, however,
that it was Ross who had informed on him. Jose said, “But at the
same time, right, you want me to fucking take this fool out
because he’s a fucking witness, period, right?” Defendant said,
“Yeah.”
They discussed price, with Raymond saying he might ask
for defendant’s car and a “G,” to which defendant did not object.

iii. Defendant communicates with an
undercover deputy posing as a hitman
An undercover sheriff’s deputy, Dylan Navarro, posed as a
hitman and met with defendant at the county jail. Due to

7
“human error,” only Navarro’s side of the conversation was
recorded. At trial, Navarro testified as to what was said.
Navarro intimated to defendant that he had been sent by
Jose and Raymond. He asked if defendant still wanted to move
forward with the plan discussed with Jose and Raymond, and
defendant nodded yes. They discussed payment of $1,000 and an
old car, and Navarro said if defendant was unable to pay, he
could work for Navarro in a criminal capacity. Navarro testified
he gave defendant multiple opportunities to change his mind and
back out, but defendant “never swayed away from what he
wanted, and that was for Jonath[a]n Ross to be killed.”
Navarro asked defendant whether he committed the 1995
murder. At one point, defendant responded by holding his hand
as if he was holding a gun. At another point, he said he did not
commit the murder, but was smiling, nodding his head, and
making air quotation marks with his fingers as he said it.
Defendant said Ross was the only one who could “put him” at the
scene of the crime. Defendant also said he (defendant) had
gotten rid of the gun.
Because of the failed recording, Skipper and Peterson
concocted a ruse to set up another meeting between defendant
and Navarro. A detective from the Gardena Police Department
visited defendant and told him, falsely, that Ross had been shot.
The detective said Ross was in critical condition but would
survive. The detective claimed to be visiting defendant because
she had heard that both Ross and defendant had been
interviewed by the Redondo Beach police, and she wanted to
know if defendant knew anything about the attack on Ross.
Navarro then went to visit defendant in jail a second time.
This encounter was recorded. Navarro told defendant that

8
Navarro and an associate shot Ross six times in the chest.
Defendant said the Gardena Police detective told him Ross was in
critical condition but would live. Navarro said he was “going to
try and handle this,” “[b]ut I gotta know you’re with this, you
know?” Defendant said, “Yeah,” and then proceeded to discuss
payment, agreeing to pay Navarro $2,000 now instead of $1,000.
Later, Navarro said he would go find “that fool” and “make
sure I finish this.” He asked if defendant was “good with that,”
and defendant said, “Oh, yeah, yeah, yeah.” Then, later, Navarro
said, “As soon as I walk away[,] dawg, as soon as . . . I hang up
this phone, that fool Never is dead[,] dawg. You’re good with
that?” Defendant said, “Yes.” Navarro made additional
references to killing Ross throughout the conversation, and
defendant continued to agree to the plan.

b. Assault with a firearm, assault on a peace
officer, resisting, delaying, or obstructing a
peace officer, and possession of a firearm by a
felon
At some point, defendant was released from custody. On
February 15, 2017, defendant went to the home of Andres
Gonzalez. According to Gonzalez, he and defendant had been
friends for about a year. Defendant wanted to collect $40 for
some automobile parts Gonzalez had bought from him. Gonzalez
told defendant he thought he had already resolved the debt.
Defendant drew a gun and shot Gonzalez in the leg. Gonzalez
described the gun as silver, and testified it looked like a gun he
had seen defendant with before.
Later that day, police converged on defendant as he pulled
his vehicle into the driveway of his apartment complex. A police
sergeant ordered defendant to turn off his car and get out with

9
his hands up. Defendant quickly accelerated his vehicle in
reverse, colliding with a vehicle occupied by Detective Ryan Yee.
Defendant then drove his vehicle forward towards the rear of the
apartment complex, exited the vehicle, and fled on foot.
Detective Edward Wenke and Sergeant Brian Messina
caught up to defendant as he was trying to get inside his
apartment. When he ignored their orders to stop, they used their
tasers on him. Defendant fell to the ground but tried to get up to
go inside. More police arrived and subdued defendant.
Defendant had a silver revolver in his pocket.

2. Defense evidence
Defendant testified on his own behalf. The trial court
permitted defendant to present his testimony as a “long
narrative,” with the trial court asking questions, because defense
counsel had a “strong suspicion that he would suborn perjury if
he were to direct specific questions” to defendant.
Defendant denied shooting Emery or having any
involvement in that crime. He claimed it was the informants’
idea to harm Ross, and he felt “pressured” to go along with it.
When Navarro met with him the second time, defendant had
found out from his mother that Ross had not actually been shot,
and he “was just playing the game with” the police when he spoke
with Navarro.
Defendant acknowledged being with Gonzalez the day
Gonzalez was shot, but testified it was another person who
sought the $40 for the auto parts, and defendant left before there
was any violence. He did not accelerate his car backwards
towards Detective Yee; rather, he intended to go forward and his
car rolled back slightly. At the time he did not know the
occupants of the vehicle behind him were police officers.

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 PROCEDURAL BACKGROUND
An information charged defendant with assault with a
firearm (Pen. Code,3 § 245, subd. (a)(2)) (count 1), assault upon a
peace officer (Yee) (§ 245, subd. (c)) (count 2), possession of a
firearm by a felon (§ 29800, subd. (a)(1)) (count 3), resisting,
delaying, or obstructing a peace officer (Messina and Wenke)4
(§ 148, subd. (a)(1)) (count 4), murder of Emery (§ 187, subd. (a))
(count 5), and solicitation of murder of Ross (§ 653f, subd. (b)
(count six).
On count 1, assault with a firearm, the information alleged
enhancements for infliction of great bodily injury (§ 12022.7,
subd. (a)) and personal use of a firearm (§ 12022.5, subds. (a),
(d)). On counts 1, 2, and 3, the information alleged that
defendant had suffered a prior conviction subjecting him both to
sentencing under the “Three Strikes” law (§§ 667, subds. (b)–(j),
1170.12.) and a prior serious felony enhancement under section
667, subdivision (a)(1). The information further alleged five prior
convictions subjecting defendant to enhancements under section
667.5.
During trial, the trial court granted the prosecution’s
motion to amend the information to allege an additional firearm
enhancement under section 12022.53 to count 1, assault with a
firearm, and a firearm enhancement under section 12022.5,
subdivision (a) to count 5, murder.5

3 Undesignated statutory citations are to the Penal Code.
4 During trial, the prosecution chose to proceed only as to
Wenke.
5 The minute order states that the trial court granted the
prosecution’s motion to amend the information to add a section

11
 The jury found defendant guilty of all six counts, and found
the great bodily injury and firearm allegations true.
Defendant waived jury trial on the prior conviction
allegations. The prosecution opted not to proceed on the prior
conviction allegations under section 667.5, and to prove only the
prior serious felony conviction supporting sentencing under the
Three Strikes law and the enhancement under section 667,
subdivision (a)(1). The trial court asked if defendant had any
objection to the prosecution not pursuing the section 667.5
enhancements, and defense counsel said no. The trial court then
found that defendant had suffered a prior conviction in 2006
for purposes of the Three Strikes law and section 667,
subdivision (a)(1).
At sentencing, the trial court denied defendant’s motion for
a new trial and motion to strike the prior strike conviction. The
trial court then imposed both a determinate and indeterminate
sentence. The determinate sentence consisted of the following:
on count 1, the high term of four years doubled to eight years
because of the prior strike, plus a three-year enhancement under
section 12022.7, a five-year enhancement under section 667,
subdivision (a)(1), “and an additional ten-year term which is the
high term for the enhancement of [section] 12022.53”; on count 2,
32 months consecutive, which was one-third the midterm
doubled; on count 3, two years, stayed pursuant to section 654; on
count 4, 364 days consecutive; and on count 6, four years
consecutive, which was one-third the midterm doubled.

12022.53, subdivision (d) enhancement to the murder count, and
does not mention any amendment to count 1. This does not
reflect the trial court’s oral pronouncement or the verdict forms.

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 The trial court also imposed a consecutive indeterminate
life term on count 5, with minimum parole eligibility at 15 years.
The trial court struck the firearm enhancement on count 5.
Defendant’s total sentence therefore was 47 years, 8 months,
364 days to life. The trial court awarded defendant 793 actual
days of credit, but denied him conduct credits because of his
murder conviction.
The trial court imposed a restitution fine of $3,000 under
section 1202.4, subdivision (b), a parole revocation fine of $3,000
under section 1202.45, a court security fee of $240 under section
1465.8, and a criminal conviction assessment of $180 under
Government Code section 70373.6 The court stated sua sponte
that defendant had the ability to pay the fines and fees given the
length of his sentence, “even with minimal prison earnings.”
Defendant timely appealed.
Additional procedural background is provided in the
relevant sections of our Discussion, post.

6 In its oral pronouncement of judgment, the trial court
imposed a court security fee of $200 and a criminal conviction
assessment of $150. This was incorrect. (See 1465.8, subd. (a)(1)
[requiring fee of $40 for every criminal offense conviction]; Gov.
Code, § 70373, subd. (a) [requiring fee of $30 per felony or
misdemeanor].) As the parties agree, the amounts listed in the
abstract of judgment are correct.

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 DISCUSSION

A. The trial court did not abuse its discretion by
admitting a redacted photograph of defendant into
evidence without additional redactions
Defendant argues the trial court abused its discretion by
admitting a redacted photograph of defendant into evidence
without additional redactions. We disagree.

1. Proceedings below
During the testimony of Julia Lindman (Lindman), one of
the witnesses to the shooting of Emery, the prosecution showed
her a booking photograph of defendant from 2003. The jury
did not see the photograph and was not told the photograph was
of defendant; the trial court described it for the jury as “an image
just of the face of a man.” The trial court admitted the
photograph into evidence.
The prosecution asked Lindman if the “skin tone” of the
person in the photograph was “similar or consistent” with that of
the shooter. She said yes. On cross-examination, Lindman
stated that all she could recall of the shooter was his dark skin
color, and could not otherwise describe or identify him.
Outside the presence of the jury, defense counsel objected
to the admission of the booking photograph as “patently
suggestive.” The trial court confirmed that the prosecution
intended to have a later witness identify defendant as the subject
of the photograph, and expressed its own concern that the jury
might “go farther than they should” and assume Lindman
actually identified defendant as the shooter, rather than just
identifying his skin tone.

14
 After further discussion, the parties agreed that the
prosecution would redact the photograph to “block out all
identifying features” apart from skin tone. The prosecution then
would admit different, unredacted photographs of defendant from
around the time of the shooting so the jury could compare
defendant’s skin tone in the unredacted photographs to the skin
tone in the redacted photograph. The trial court stated it would
withdraw the photograph shown to Lindman from evidence, and
would replace it with the redacted photograph when the
prosecution provided it.
Later, the prosecution provided a version of the 2003
booking photograph with defendant’s eyes, nose, and mouth
redacted, and the ears, jawline, forehead, cheeks, and hair
visible. Defense counsel argued the redaction was insufficient,
and proposed blocking off everything but the forehead. The
prosecution objected to further redaction, arguing “skin tone
needs to be seen in more context than that.”
The trial court ruled that the photograph be redacted to
show only the hair and forehead. The trial court concluded “that
the jury will get the point, that they’re being shown what the
skin tone was perceived to be of the face of the person, and that’s
all.” The court concluded “that the hair is not distinctive. It is
dark hair but with dark-complected people, dark hair is much
what you would expect . . . .” Defense counsel acknowledged the
trial court had ruled, but reasserted its request that the hair be
redacted as well.
During Frank Dozier’s testimony, the trial court admitted
the photograph into evidence, redacted below the forehead as

15
instructed by the court, and showed it to Dozier. 7 The
prosecution asked if “the skin tone and complexion” was
“consistent with what you saw” the night of the shooting. Dozier
said, “If you’re asking me if it could possibly be, yes, it could
possibly be.” The prosecution asked, “Is it inconsistent in any
way?” Dozier replied, “Not from what I see, no.”
On a later day, the prosecution admitted into evidence
three unredacted booking photographs, labeled as exhibits 40-A,
40-B, and 40-C, which Skipper identified as photographs of
defendant. None of these was the same photograph as the
redacted booking photograph admitted during Dozier’s testimony.
The next day, outside the presence of the jury, defense
counsel objected that defendant’s hairstyle in the exhibit 40
unredacted booking photographs was sufficiently similar to the
hairstyle visible in the redacted booking photograph that the jury
would realize the redacted photograph was of defendant. The
trial court concluded defendant’s hairstyle in the photographs
was “not at all unique,” and did not think the unredacted

7 According to the reporter’s transcript, the redacted
photograph was admitted as exhibit 26-A. We have reviewed the
trial exhibits, and the photograph redacted as the trial court
described, with only the forehead and hair visible, is labeled as
exhibit 26-B. Exhibit 26-A, in contrast, appears to be the first
redacted photograph the prosecution prepared, which left the
ears, cheeks, and jawline visible along with the forehead and
hair. We need not resolve this discrepancy; although the parties
in their briefing refer to the photograph entered into evidence
and shown to the jury as exhibit 26-A, they do not dispute that
the photograph showed only the forehead and hair, consistent
with exhibit 26-B.

16
photographs would lead the jury to “think that [defendant] is
necessarily the subject of [the] cropped photo.”
During closing argument, it appears the prosecution
displayed both the redacted photograph and one of the
unredacted exhibit 40 photographs to the jury for comparison.
The prosecution stated, “Julia Lindman said she remembered the
skin tone of the shooter. And she looked at this exhibit
[presumably indicating the redacted photograph] and said, ‘That
is the skin tone of the person who committed that murder. I
remember.’ This is the defendant in 1999 [presumably indicating
one of the Exhibit 40 photographs]. That’s the same skin tone, or
as close as you could find.”
The prosecution continued, “Frank Dozier also remembered
the skin tone of the shooter. He said he turned and saw this clear
side profile. He said, ‘Yeah, that looks like it.’ Same skin tone,
according to Frank Dozier.” The prosecution further referred to
Jacqueline Emery’s testimony that the shooter’s skin tone was
“ ‘coffee with a lot of cream,’ ” and stated, “That’s a pretty apt
description for the defendant in the ‘90s. Coffee with a lot of
cream.”

2. Analysis
On appeal, defendant argues, as he did below, that given
the similarity of the hairstyle and hairline in the redacted
photograph to those in the exhibit 40 photographs, a juror could
conclude that the person in the redacted booking photo was
defendant. Defendant argues this would create “the impression
that Lindman, who had only identified the shooter’s skin tone,
had actually identified [defendant] as the shooter.” Defendant
contends the trial court abused its discretion by failing to exclude

17
the redacted photograph from evidence, or, alternatively, by not
redacting it further to conceal the hair.
In support of his argument, defendant invokes Evidence
Code section 352, which grants trial courts discretion to “exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger
of undue prejudice . . . .” The Attorney General argues defendant
has forfeited any argument under that statute because he did not
raise it below. Because we conclude defendant’s argument fails
on the merits, we need not decide whether he preserved it for
appeal.
We review the trial court’s rulings on the admissibility
of evidence for abuse of discretion. (People v. Elliott (2012)
53 Cal.4th 535, 577.) Having examined the photographs
ourselves, we find no abuse here. Initially, it is clear that none of
the exhibit 40 photographs is the same as the redacted
photograph. Thus, no juror would conclude that any of the
exhibit 40 photographs was an unredacted version of the redacted
photograph. We agree with the trial court, moreover, that the
hairlines and hairstyles depicted in the exhibit 40 photographs,
some of which are similar to those in the redacted photograph,
are not so distinctive that jurors would conclude the redacted
photograph was of defendant. We cannot say the trial court
exceeded the bounds of its discretion by admitting the redacted
photograph without taking additional measures to disguise
defendant’s identity.
Even assuming the trial court erred by admitting the
photograph, prejudice was unlikely given the mental steps a juror
would have to take to conclude, incorrectly, that Lindman
identified defendant. First, a juror would have to look at the

18
redacted photograph and the exhibit 40 photographs side by side
and conclude they depicted the same person. Then, the juror
would have to recall, despite only the redacted photo being in
evidence, that Lindman in fact testified while viewing an
unredacted version of that photograph. Finally, the juror would
have to ignore that Lindman unequivocally testified she could
identify only the skin tone of the shooter, and could not otherwise
identify or describe him, a point reinforced by the prosecution’s
closing, which emphasized Lindman’s identification of the skin
tone. In short, we do not think it reasonably probable that the
admission of the redacted photograph tipped the balance in this
case.

B. Defendant forfeited his claim of prosecutorial
misconduct, and fails to show prejudice
Defendant claims the prosecution committed misconduct
during closing argument by appealing to the jury’s sympathy for
Emery and his family. This contention is forfeited. On the
merits, defendant fails to show prejudice.

1. Proceedings below
Defendant identifies three portions of the prosecutor’s
closing argument he claims were improper. First, at the
beginning of the closing, after describing defendant’s alleged
offenses and his willingness to lie and kill, the prosecutor stated,
“Enough is enough. The time has come to hold the defendant
accountable for these actions, dating back to the mid ‘90s. The
time has come to do justice for the family of Mr. Emery, for the
Redondo Police Department, for the Gardena Police Department,
for the communities in which he has wreaked havoc. That’s what
I’ll be asking you all to do today. [¶] Let’s go through it. And

19
before I start, I just want you to remember Edward. When he
was killed, he left a family without a husband, without a father,
without a loved one. Just remember Mr. Emery, as we go
forward.”
Then, at the end of the argument, the prosecutor stated,
“But what I’m asking you to do is hold him accountable, because
he never will himself. He plays by his own rules. He does not
conform to the rules of a civilized society. If it’s up to him, he’ll
never be held accountable. [¶] All 12 of you have that option
today to do that. Do justice for the family of Mr. Emery. Do
justice to his memory. Follow the law. Follow the law and find
him guilty of murder . . . .”
On rebuttal, the prosecutor concluded by stating, “That’s all
I have to say, and I hope that you follow the law, follow your gut,
do justice for the family of Mr. Emery, and hold this man
accountable and say, ‘Enough is enough.’ ”

2. Analysis
Defendant’s counsel did not object to the prosecutor’s
remarks challenged here or request an admonition to the jury.
Thus, the claim of misconduct is forfeited.8 (People v. Amezcua
and Flores (2019) 6 Cal.5th 886, 919 (Amezcua).) Although
defendant raised the issue in his motion for a new trial, that was

8 We note that defense counsel appeared to address the
prosecutor’s remarks in his own closing, stating, “It sounds
simple [to be fair and impartial], but it’s harder than you think it
is. Because we’ve heard so much inflammatory evidence. And
because there’s a homicide involved, we look at the suffering by
the victim. And we say look at the injury, the victim’s family,
and, yes, we will look at that. But this is not your province.”

20
insufficient to preserve the issue for appeal. (See People v.
Adams (2014) 60 Cal.4th 541, 578 [prosecutorial misconduct
challenge forfeited for lack of timely objection when raised for
first time in postverdict motion for new trial].)
Were we to reach the merits, we would agree the
prosecution’s statements were improper. “Although a prosecutor
may vigorously argue the case, appeals to sympathy for the
victim during an objective determination of guilt fall outside the
bounds of vigorous argument.” (Amezcua, supra, 6 Cal.5th at
p. 920.) Here, the prosecution asked the jury to “remember”
Emery, and that his death deprived his family of a loved one.
The prosecution urged the jury to “do justice” for Emery and his
family. These comments inappropriately played to the jury’s
sympathy for the victim and his family.
We disagree with defendant, however, that these improper
comments prejudiced him. “ ‘ “A defendant’s conviction will not
be reversed for prosecutorial misconduct . . . unless it is
reasonably probable that a result more favorable to the defendant
would have been reached without the misconduct.” ’ ” (People v.
Young (2019) 7 Cal.5th 905, 932–933 (Young).)9 Here, the
challenged statements constituted a “few remarks in a much
longer closing argument, and an even longer trial.” (See People v.
Seumanu (2015) 61 Cal.4th 1293, 1344.) There was compelling
evidence against defendant, including his DNA at the scene of the
crime, the shooter escaping in a vehicle matching defendant’s,

9 Defendant fails to show “ ‘a pattern of conduct so
egregious that it infects “ ‘the trial with unfairness as to make
the resulting conviction a denial of due process.’ [Citation.]”
[Citation.]’ ” (Young, supra, 7 Cal.5th at p. 932.) We thus
evaluate prejudice under the state law standard. (See ibid.)

21
and recordings clearly establishing defendant’s desire to
eliminate the person he believed had informed on him. (Ibid.
[prosecutorial misconduct unlikely to prejudice defendant “given
the strong evidence of his guilt.”].) It is not reasonably probable
the jury would have reached a result more favorable to defendant
absent the misconduct.10

C. The trial court did not abuse its discretion by
denying defendant’s motion for a new trial
Defense counsel moved for a new trial based on the
admission of the redacted photograph and the prosecution’s
improper statements during closing argument. The trial court
denied the motion. Defendant contends this was an abuse of
discretion. (See People v. Hoyt (2020) 8 Cal.5th 892, 957 [denial
of motion for new trial reviewed for abuse of discretion].)
As set forth ante, neither the admission of the photograph
nor the prosecution’s statements constituted prejudicial error.
Accordingly, the trial court did not abuse its discretion by
denying the motion for a new trial. (People v. Caro (2019)
7 Cal.5th 463, 525 [trial court may grant new trial motion only
upon showing of reversible error].)

10 Defendant contends the fact the jury requested
readback during deliberations indicated “it was a close case on
the contested charges.” The requested readback was of testimony
concerning the assault on a peace officer charge. The request
does not indicate the murder charge was a “close case.”

22
D. Defendant forfeited his challenge to the restitution
fine and fees imposed, and imposition of those costs
was constitutional
As set forth above, the trial court imposed a $3,000
restitution fine, $240 court security fee, and $180 criminal
conviction assessment, and determined sua sponte that
defendant had the ability to pay those costs with wages earned
during his lengthy incarceration. Defendant argues that the
trial court’s assumption that he would earn enough in prison to
pay the costs was incorrect. He further argues that error was of
constitutional dimension, because People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas) held that due process prohibits
imposition of fines and fees without a (proper) determination that
the defendant has the ability to pay them. (Id. at p. 1164.)
As an initial matter, defendant forfeited this argument by
not objecting to the imposition of the fines and fees below. (See
People v. Montelongo (2020) 55 Cal.App.5th 1016, 1033–1034
[challenge to imposition of restitution fine and court assessments
forfeited by failure to object in trial court].)
Were we to reach the merits, we would reject defendant’s
challenge because Dueñas is distinguishable. In Dueñas, an
unemployed, homeless mother with cerebral palsy lost her
driver’s license when she was unable to pay over $1,000 assessed
against her for three juvenile citations. (Dueñas, supra,
30 Cal.App.5th at pp. 1160–1161.) Thereafter she received
multiple convictions related to driving with a suspended license,
each accompanied by jail time and additional fees she could not
afford to pay. (Id. at p. 1161.) The trial court rejected Dueñas’s
request to hold an ability to pay hearing despite undisputed
evidence that she was indigent. (Id. at p. 1163.)

23
 The appellate court reversed, holding that due process
prohibited imposing the same assessments imposed in the instant
case and required the trial court to stay execution of the
restitution fine until the trial court held an ability to pay hearing.
(Dueñas, supra, 30 Cal.App.5th at p. 1164.) The Dueñas court
expressed concern for “the cascading consequences of imposing
fines and assessments that a defendant cannot pay,” noting that
Dueñas’s case “ ‘doesn’t stem from one case for which she’s not
capable of paying the fines and fees,’ but from a series of criminal
proceedings driven by, and contributing to, Dueñas’s poverty.”
(Id. at pp. 1163–1164.) The court referenced “the
counterproductive nature of this system and its tendency to
enmesh indigent defendants in a cycle of repeated violations and
escalating debt.” (Id. at p. 1164, fn. 1.)
In People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres),
we declined to apply Dueñas beyond its “extreme facts.” (Id.
at p. 923.) We thus rejected a Dueñas challenge brought by a
defendant convicted of criminal threats, concluding that offense
“on its face is not a crime either ‘driven by’ poverty or likely to
‘contribut[e] to’ that poverty such that an offender is trapped in a
‘cycle of repeated violations and escalating debt.’ [Citation.] A
person may avoid making criminal threats regardless of his or
her financial circumstances, and the imposition of $370 in
fees and fines will not impede [the defendant]’s ability to
avoid making criminal threats in the future.” (Caceres,
at pp. 928–929.)
Here, as in Caceres, defendant’s offenses—murder,
solicitation of murder, assault with a firearm, assault on a peace
officer, resisting arrest, and unlawful possession of a firearm—
are not crimes likely to trap him “in a ‘cycle of repeated violations

24
and escalating debt,’ ” particularly when he may abstain from
committing those offenses in the future regardless of his financial
circumstances. (Caceres, supra, 39 Cal.App.5th at pp. 928–929.)
Dueñas is therefore inapplicable to the facts of this case and
does not provide a basis to challenge the imposition of the
restitution fine and assessments.

E. Defendant fails to demonstrate ineffective assistance
of counsel
Defendant argues that to the extent he forfeited his
challenges on appeal for failure to object below, he was denied his
constitutional right to effective assistance of counsel. To
demonstrate ineffective assistance of counsel, a defendant must
show both that counsel’s performance was deficient and that the
deficient performance prejudiced the defense. (People v. Dowdell
(2014) 227 Cal.App.4th 1388, 1406.)
As set forth ante, defendant has failed to show prejudicial
error in his challenges to the admission of the photograph and
prosecutorial misconduct, and we have rejected his constitutional
challenge to the fines and fees. Thus, assuming arguendo his
counsel’s performance was deficient, it did not prejudice the
defense.
Defendant notes that, in addition to not raising a
constitutional objection to the fines and fees, defense counsel also
did not object to the $3,000 fine under section 1202.4,
subdivision (c), which permits the trial court to consider a
defendant’s ability to pay when imposing a restitution fine above
the $300 statutory minimum. In other words, even absent a
constitutional basis to object to the trial court’s determination
that defendant had the ability to pay the fine, defendant had a

25
statutory basis to object to the extent the fine exceeded the
statutory minimum, and defense counsel did not do so.
The record is insufficient to address this claim on direct
appeal. “ ‘ “ ‘Reviewing courts will reverse convictions [on direct
appeal] on the ground of inadequate counsel only if the record on
appeal affirmatively discloses that counsel had no rational
tactical purpose for [his or her] act or omission.’ ” ’ [Citation.] ‘If
the record on appeal sheds no light on why counsel acted or failed
to act in the manner challenged, an appellate claim of ineffective
assistance of counsel must be rejected unless counsel was asked
for an explanation and failed to provide one, or there simply could
be no satisfactory explanation.’ [Citation.]” (People v. Campbell
(2020) 51 Cal.App.5th 463, 504.)
Here, the record does not disclose why defense counsel
did not object to the trial court’s sua sponte determination that
defendant had the ability to pay the fine. There are conceivable
satisfactory explanations, including that defense counsel may
have known defendant had the ability to pay the fine, or at least
would not be able to prove otherwise.
Defendant disputes this possibility, claiming that his
indigence, as indicated by his representation by appointed
counsel below and on appeal, conclusively establishes his
inability to pay the fine. Defendant’s inability to afford an
attorney does not conclusively establish he cannot pay the much
lower cost of a $3,000 fine. We thus cannot address in this direct
appeal defendant’s claim of ineffective assistance of counsel based
on the lack of objection to the imposition of a fine above the
statutory minimum. Accordingly, we express no opinion as to
whether defense counsel’s performance was deficient for failing to
object to the restitution fine under section 1202.4, subdivision (c).

26
F. The trial court properly doubled the sentence on
count 6 under the Three Strikes law
The information alleged that “prior to the commission of
that offense or offenses alleged in Count 1, 2, and 3, the
defendant . . . had been convicted of the following serious and/or
violent felony, as defined in Penal Code section 667(d) and
Penal Code section 1170.12(b), and is thus subject to sentencing
pursuant to the provisions of Penal Code section 667(b)–(j) and
Penal Code section 1170.12,” also known as the Three Strikes
law. (See People v. Marcus (2020) 45 Cal.App.5th 201, 208.)
Accordingly, the information indicated that the sentences on
counts 1 through 3 should be doubled, but did not so indicate for
the other three counts. The prosecution’s sentencing
memorandum, however, filed two days before sentencing,
recommended the trial court apply the Three Strikes law to
count 6, solicitation of murder of Ross, as well as to counts 1
through 3.11 The trial court did so, doubling the sentences on
those four counts.
Defendant contends that because the information alleged
the prior strike only as to counts 1 through 3, the trial court erred
by doubling the sentence on count 6. The Attorney General
argues defendant forfeited this challenge by not objecting below.
On the merits, the Attorney General argues that so long as the
information alleges a prior strike conviction, it need not be

11 We presume the prosecution did not pursue Three
Strikes sentencing on count 4, resisting a peace officer, because it
was a misdemeanor and on count 5, murder of Emery, because
defendant committed the murder before he incurred the strike
conviction. The sentences on those counts are not at issue in this
appeal.

27
pleaded on a count-by-count basis. We conclude defendant’s
argument fails on the merits and do not reach the forfeiture
question.
The purpose of the Three Strikes law is “to ensure longer
prison sentences and greater punishment for those who commit a
felony and have been previously convicted of one or more serious
or violent felony offenses.” (§ 667, subd. (b).) By its own terms, it
applies “in every case in which a defendant has one or more prior
serious or violent felony convictions . . . .” (Id., subd. (f)(1), italics
added; see also § 1170.12, subd. (d)(1).) Indeed, despite the
“general rule” that “the selection of criminal charges is a matter
subject to prosecutorial discretion,” “the Three Strikes law limits
that discretion and requires the prosecutor to plead and prove
each prior serious felony conviction.” (People v. Roman (2001)
92 Cal.App.4th 141, 145 (Roman); see § 667, subd. (f)(1) [“The
prosecuting attorney shall plead and prove each prior serious or
violent felony conviction . . . .”], italics added; see also § 1170.12,
subd. (d)(1).) The prosecution may move the court to dismiss the
prior conviction allegation for insufficient evidence or “in the
furtherance of justice” (§§ 667, subd. (f)(2), 1170.12, subd. (d)(2)),
but may not “unilaterally strike” the allegation. (Roman,
at p. 145.)
Because application of the Three Strikes law is based on “a
defendant’s prior conviction status,” a status that “does not
change from one count to another,” our Supreme Court has
described the Three Strikes law as “a single comprehensive and
indivisible sentencing scheme that either does or does not apply.”

28
(People v. Garcia (1999) 20 Cal.4th 490, 502 (Garcia).)12
Accordingly, “it is appropriate to allege [defendant’s prior
conviction] status only once as to all current counts . . . .”
(Garcia, at p. 502.)
Defendant concedes “[t]here is no statutory requirement
that a . . . prior strike conviction be pleaded on a count-by-count
basis.” Defendant argues, however, as does the dissent, that
“when a prior strike conviction is specifically alleged as to a
particular count or counts in the information, but not as to all
counts, the charging document necessarily has not provided the
defendant with notice that the prosecution could seek to impose a
sentence under the Three Strikes law as to any count other than
those as to which the prior strike was alleged.” In other words,
by choosing to allege the prior strike only as to counts 1 through
3, the prosecution led defendant to believe he would not be
sentenced under the Three Strikes law on count 6.
We conclude the trial court properly doubled the sentence
on count 6 under the Three Strikes law. In People v. Morales
(2003) 106 Cal.App.4th 445 (Morales), our colleagues in Division
Five held that when the prosecution pleaded and proved a prior
strike alleged as to one felony count, the strike applied to the
two other felony counts in the information, although the prior
strike had not been pleaded as to those counts.13 (Morales, at

12 Garcia held that courts nonetheless may strike prior
conviction allegations on a count-by-count basis. (Garcia, supra,
20 Cal.4th at p. 502.)
13 The strike allegation in Morales read, “ ‘It is further
alleged pursuant to Penal Code sections 1170.12(a) through (d)
and 667(b) through (i) as to count(s) 2 that said defendant(s),
Manuel Morales, has suffered the following prior convictions of a

29
pp. 447–448.) Consistent with the principles we outlined above,
the Morales court reasoned that “[p]rior conviction findings fall in
the category of [enhancements] that describe the offender rather
than the offense.” (Id. at p. 455.) “In order for enhanced
recidivist sentencing to occur, all that is necessary is that the
defendant previously had been convicted of a . . . violent felony
such as occurred in this case.” (Ibid.)
The court relied on language from section 667, including
the language from section 667, subdivision (f) that the sentencing
provisions “ ‘shall be applied in every case in which a
defendant has a prior felony conviction . . . .’ ” (Morales, supra,
106 Cal.App.4th at p. 455, quoting § 667, former subd. (f)(1).)
“Fairly construed, sections 667 and 1170.12 require enhanced
sentencing once a prior violent felony conviction has been pled
and found to be true, unless the court dismisses the prior
conviction finding pursuant to section 1385, subdivision (a).”
(Morales, at p. 456.) The appellate court therefore concluded the
trial court erred by not doubling the sentences on the two counts
to which the strike was not pleaded.14 (Morales, at p. 456.)
Morales is on point. Defendant argues, however, that
Morales is no longer good law after our Supreme Court’s recent
decision in People v. Anderson (2020) 9 Cal.5th 946 (Anderson).
In Anderson, the court held that an information alleging a
25-year-to-life vicarious firearm enhancement under section
12022.53, subdivision (e) as to a single murder count did not

serious or violent felony or juvenile adjudication . . . .’ ” (Morales,
supra, 106 Cal.App.4th at p. 450, capitalization omitted.)
14 The appellate court remanded the case for the trial court
to exercise its discretion whether to strike the strike as to either
count. (Morales, supra, 106 Cal.App.4th at p. 457.)

30
provide adequate notice that the prosecution would seek the
same enhancement on five robbery counts as to which the
enhancement was not pleaded. (Anderson, at p. 950.)
The court cited the requirement in section 1170.1,
subdivision (e) that sentence enhancements “ ‘shall be alleged in
the accusatory pleading,’ ” a requirement mirrored in the firearm
enhancement statute itself (§ 12022.53, subd. (j)), as well as the
requirement in section 12022.53, subdivision (e) that the
prosecution “ple[a]d and prove[ ]” the allegations underlying the
vicarious firearm enhancement. (Anderson, supra, 9 Cal.5th at
p. 953.) “Beneath all three statutory pleading requirements lies a
bedrock principle of due process,” namely that “ ‘ “[a] criminal
defendant must be given fair notice of the charges against him in
order that he may have a reasonable opportunity properly to
prepare a defense and avoid unfair surprise at trial.” ’ [Citation.]
This goes for sentence enhancements as well as substantive
offenses: A defendant has the ‘right to fair notice of the specific
sentence enhancement allegations that will be invoked to
increase punishment for his crimes.’ [Citation.]” (Ibid.)
These “statutory pleading requirements . . . , read against
the backdrop of due process, require more than simply alleging
the facts supporting an enhancement somewhere in the
information.” (Anderson, supra, 9 Cal.5th at p. 956.) “A pleading
that alleges an enhancement as to one count does not provide fair
notice that the same enhancement might be imposed as to a
different count. When a pleading alleges an enhancement in
connection with one count but not another, the defendant is
ordinarily entitled to assume the prosecution made a
discretionary choice not to pursue the enhancement on the second

31
count, and to rely on that choice in making decisions such as
whether to plead guilty or proceed to trial.” (Ibid.)
Thus, “[f]air notice requires that every sentence
enhancement be pleaded in connection with every count
as to which it is imposed.” (Anderson, supra, 9 Cal.5th at
pp. 956–957.) “Neither the relevant statutes nor the due process
clause requires rigid code pleading or the incantation of magic
words. But the accusatory pleading must adequately inform the
defendant as to how the prosecution will seek to exercise its
discretion.” (Id. at p. 957.)
In our view, the notice concerns articulated in Anderson
are not present here. The information in the instant case
expressly invoked the Three Strikes law, and the plain language
of that law provided adequate notice that it must apply to all
eligible offenses unless the trial court exercised its discretion to
strike the strike.
As discussed, a defendant’s prior conviction status is not
based on the circumstances of his current offense, and thus
“does not change from one count to another.” (Garcia, supra,
20 Cal.4th at p. 502.) The “single comprehensive and indivisible
sentencing scheme” that is the Three Strikes law “either does or
does not apply.” (Ibid.) This is clear from the language of the
Three Strikes law itself, stating it “shall be applied in every case
in which a defendant has one or more prior serious or violent
felony convictions . . . .” (§ 667, subd. (f)(1), italics added; see also
§ 1170.12, subd. (d)(1).) Pleading and proof of a prior strike
allegation is sufficient to subject a defendant to Three Strikes
sentencing on all eligible offenses, without alleging the strike on
a count-by-count basis. (See Garcia, at p. 502.)

32
 Further, as discussed, the plain language of the Three
Strikes law makes clear that the prosecution lacks discretion to
allege prior strikes on some counts but not others. (§ 667,
subd. (f)(1) [“The prosecuting attorney shall plead and prove each
prior serious or violent felony conviction . . . .]; § 1170.12,
subd. (d)(1); see Roman, supra, 92 Cal.App.4th at p. 145.) Thus,
although the prosecution drafted the information in the instant
case inartfully, and purported to allege the prior strike only as to
some eligible counts, it would be evident to defendant on the face
of the Three Strikes law that the prior strike would apply to all
eligible counts, unless the trial court dismissed the strike either
on its own motion or in response to a motion by the prosecution or
defense. (See §§ 667, subd. (f)(1)–(2), 1385.) In short, an
information invoking the Three Strikes law and alleging a prior
strike, in tandem with the language of the Three Strikes law
itself, provides adequate notice that the prosecution is charging
the defendant as a recidivist offender subject to the Three Strikes
sentencing regime on all eligible offenses.15
Anderson, in contrast, involved an enhancement under
section 12022.53, subdivision (e), which imposes “a 25-year-to-life
enhancement based on vicarious liability for the injurious
discharge of a firearm by a coparticipant in a gang-related
offense.” (Anderson, supra, 9 Cal.5th at p. 951.) As a firearm

15 Division Three of this court has held that an
information alleging a prior conviction without any reference to
the Three Strikes law did not provide adequate notice the
defendant was subject to Three Strikes sentencing. (People v.
Sawyers (2017) 15 Cal.App.5th 713, 718, 721.) In contrast, here,
the information expressly invoked the Three Strikes law by citing
sections 667, subdivisions (b)–(j) and 1170.12.

33
enhancement, section 12022.53, subdivision (e) falls into the
category of enhancements that “arise from the circumstances of
the crime,” and therefore are based “on what the defendant did
when the current offense was committed.” (People v. Coronado
(1995) 12 Cal.4th 145, 157, italics omitted [describing, inter alia,
the firearm enhancement under section 12022.5].) Because a
section 12022.53 enhancement speaks to the circumstances of a
particular count, it follows that it must “be pleaded in connection
with every count as to which it is imposed.” (Anderson, supra,
9 Cal.5th at pp. 956–957.)
Section 12022.53, moreover, contains no language limiting
the prosecution’s discretion to plead or not plead the
enhancement. Thus, it is permissible for the prosecution to plead
a section 12022.53 firearm enhancement on one count but not
another, and a defendant reading an information that does so has
no reason to think the enhancement might apply to a count to
which it is not pleaded. Rather, “the defendant is ordinarily
entitled to assume the prosecution made a discretionary choice
not to pursue the enhancement on the [other] count . . . .”
(Anderson, supra, 9 Cal.5th at p. 956.)
A defendant has no basis to make such an assumption,
however, when an information alleges a prior strike as to some
eligible counts but not others. This is because, under the plain
language of the Three Strikes law, it applies “in every case” in
which a defendant has suffered a prior strike conviction (§§ 667,
subd. (f)(1); 1170.12, subd. (d)(1)), and, to borrow Anderson’s
language, the prosecution expressly cannot “ma[k]e a
discretionary choice not to pursue” the Three Strikes alternative
sentencing regime on all eligible counts. (Anderson, supra,
9 Cal.5th at p. 956.) Thus, despite the failure of the prosecution

34
in this case to allege the strike on count 6, the language of
sections 667 and 1170.12, both of which were cited in the
information, provided adequate notice that count 6 also would be
subject to a doubled sentence. In contrast, in Anderson, review of
the applicable firearm enhancement statute would provide no
notice that the enhancement would apply to counts to which the
enhancement was not pleaded.
Defendant argues Anderson’s holding extends to Three
Strikes pleading because Anderson relied on the reasoning of
People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), a case
involving the “One Strike” law (§ 667.61). (See Anderson, supra,
9 Cal.5th at pp. 954–955 [discussing Mancebo].) Defendant
suggests the One Strike law and Three Strikes law are analogous
for purposes of this case. As we explain, the One Strike law
differs in key respects from the Three Strikes law, and Mancebo
is not on point.
The One Strike law “sets forth an alternative and harsher
sentencing scheme for certain enumerated sex crimes perpetrated
by force . . . .” (Mancebo, supra, 27 Cal.4th at p. 741.) “The
section applies if the defendant has previously been convicted of
one of [several] specified offenses, or if the current offense was
committed under one or more specified circumstances.” (Id. at
pp. 741–742; § 667.61, subds. (a)–(b), (d)–(e).) In other words, the
One Strike law is similar to the Three Strikes law in that it may
be applied based on past convictions, but it is dissimilar in that it
may also be applied based on the circumstances of the current
offense. The One Strike law also differs from the Three Strikes
law in that it does not restrict the prosecution’s discretion
whether to plead or not plead allegations justifying imposition of
the sentencing regime; instead, “The penalties provided in [the

35
One Strike law] shall apply only if the existence of any
circumstance specified in subdivision (d) or (e) is alleged in the
accusatory pleading . . . .” (§ 667.61, subd. (o), italics added.)
The One Strike law requires the trial court to impose an
indeterminate term of 25 years to life on defendants convicted of
an offense “under two or more of the circumstances specified in
subdivision (e)” of section 667.61. (§ 667.61, subd. (a).)
Accordingly, the information at issue in Mancebo alleged two
such circumstances for each victim—for the first victim, “Kidnap
and Use of Firearm,” and for the second victim, “Use of Firearm
and Tie or Bind Victim.” (Mancebo, supra, 27 Cal.4th at pp. 742–
743; see 667.61, subds. (a), (e)(1), (3), (5).) Because the
information alleged only two circumstances per victim, the
“minimum number” required for indeterminate sentencing under
section 667.61, subdivision (a), the One Strike law barred the
prosecution from relying on the gun use circumstances also to
support firearm enhancements under section 12022.5. (Mancebo,
at p. 743; § 667.61, subd. (f).) The trial court, however,
substituted an unpleaded multiple-victim circumstance for the
firearm circumstance in order to meet the “minimum number” of
qualifying circumstances for purposes of One Strike sentencing,
“thereby making gun use available as a basis for imposing the
section 12022.5(a) enhancements.” (Mancebo, at p. 740.)
Our Supreme Court held it was error to impose the
section 12022.5 firearm enhancements. (Mancebo, supra,
27 Cal.4th at p. 744.) The One Strike law requires that the
circumstances supporting enhanced sentencing be pleaded and
proved. (Id. at pp. 744–745, citing § 667.61, subd. (f).) Although
the information pleaded, and the prosecution proved, that the
defendant committed offenses against two victims, the

36
information never alleged a multiple victim circumstance under
section 667.61, subdivision (e). (Mancebo, at pp. 744–745.) “In
other words, no factual allegation in the information or pleading
in the statutory language informed defendant that if he was
convicted of the underlying charged offenses, the court would
consider his multiple convictions as a basis for One Strike
sentencing under section 667.61, subdivision (a). Thus, the
pleading was inadequate because it failed to put defendant on
notice that the People, for the first time at sentencing, would seek
to use the multiple victim circumstance to secure indeterminate
One Strike terms under section 667.61, subdivision (a) and use
the circumstance of gun use to secure additional enhancements
under section 12022.5(a).” (Mancebo, at p. 745.)
The court concluded that the prosecution had made a
“discretionary charging decision” to use the firearm allegations to
support One Strike sentencing as opposed to section 12022.5
enhancements. (Mancebo, supra, 27 Cal.4th at p. 749.) “Because
the People elected to plead the enhancement allegations in this
manner, the express provisions of [section 667.61,] subdivision (f)
restricted the trial court to this application.” (Mancebo, at
p. 749.)
Mancebo addressed the notice required when the
prosecution makes a discretionary charging decision concerning
enhancements based on the circumstances of the underlying
offense. The enhancement in Anderson too was discretionary and
based on the circumstances of the underlying offense. As in
Anderson, review of the One Strike law would not have remedied
any pleading defects by filling in the missing pieces in the
information, and thus the Mancebo defendant had no way of

37
knowing from the information that he would be subject to an
unpleaded multiple-victim circumstance.
Mancebo, like Anderson, does not apply to the instant case,
in which the information clearly alleged a sentencing regime that
on its face is both nondiscretionary and based on the defendant’s
criminal history rather than the circumstances of his offenses.
Citation to the Three Strikes law, along with an allegation of a
prior strike, was sufficient to place defendant on notice that all
eligible offenses would be subject to the Three Strikes sentencing
scheme.
The dissent cites People v. Williams (2004) 34 Cal.4th 397,
404–405 (Williams) for the proposition that the Three Strikes law
does not draw any distinction between status enhancements,
based on the defendant’s record, and enhancements based on the
circumstances of the current offenses. (Conc. & dis. opn. post,
at p. 3.) Williams is not instructive as to the issue before us here.
Williams addressed whether, when a defendant is subject
to multiple indeterminate Three Strikes sentences, the trial court
should impose a prior conviction enhancement under section 667,
subdivision (a) on each of the sentences, or only once on the
total aggregate sentence. (Williams, supra, 34 Cal.4th at
pp. 400–401). In the context of multiple determinate sentences,
an earlier Supreme Court opinion had held that, under section
1170.1, prior conviction enhancements could be imposed only
once on the total aggregate sentence, whereas offense-based
enhancements such as firearm enhancements “enhance the
several counts.” (People v. Tassell (1984) 36 Cal.3d 77, 90,
disapproved on other grounds by People v. Ewoldt (1994)
7 Cal.4th 380.) Williams held that the rule for multiple
determinate sentences under section 1170.1 and Tassell did not

38
apply for purposes of imposing status-based enhancements on
multiple indeterminate Three Strikes sentences, in part because
“[t]he Three Strikes law, unlike section 1170.1, does not draw any
distinction between status enhancements, based on the
defendant’s record, and enhancements based on the
circumstances of the current offenses . . . .” (Williams, at
pp. 404–405.) Thus, the trial court must apply the prior
conviction enhancement “individually to each count of a third
strike sentence.” (Id. at p. 405.)
Williams concerned only the imposition of enhancements
on Three Strikes sentences. It did not concern what is at issue in
the instant case, namely the pleading requirements of the Three
Strikes sentences themselves. Williams therefore does not
suggest, as the dissent implies, that there is no difference
between the pleading of status-based prior strike allegations and
the pleading of offense-based allegations such as those at issue in
Anderson.
In sum, the trial court did not err in doubling the sentence
on count 6.

G. The trial court must strike the enhancement to the
assault charge under section 12022.53 and instead
impose an enhancement under section 12022.5
On count 1, assault with a firearm, the jury found
allegations in support of firearm enhancements under sections
12022.5 and 12022.53 to be true. When sentencing defendant on
count 1, the trial court imposed “an additional ten-year term
which is the high term for the enhancement of [section]
12022.53.” The sentencing minute order and abstract of
judgment similarly reflect a 10-year enhancement under
section 12022.53, subdivision (a).

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 The parties correctly note this was error. The firearm
enhancement under section 12022.53 applies only to specified
felonies, and assault with a firearm under section 245,
subdivision (a)(2) is not among them. (See § 12022.53, subd. (a).)
Also, the enhancement under section 12022.53 does not have a
low, middle, and high term, instead imposing fixed
penalties depending on how the firearm is used.16 (§ 12022.53,
subds. (b)–(d).)
In contrast, section 12022.5 applies to personal use of a
firearm in the commission of an offense under section 245, and
imposes an enhancement of 3, 4, or 10 years. (§ 12022.5,
subds. (a), (d).) We agree with the parties that the trial court
intended to impose an enhancement based on the true finding
under section 12022.5 rather than section 12022.53. In our
disposition, we direct the trial court to correct this error.

H. Defendant is entitled to presentence conduct credit
As noted earlier, the trial court awarded defendant
793 actual days of credit, but denied him conduct credits because
of his murder conviction. Although section 2933.2, subdivision
(a) prohibits defendants convicted of murder from accruing
conduct credit, it applies only to murders committed on or after
the date the statute became operative, which was June 3, 1998.
(§ 2933.2, subds. (a), (d); People v. Chism (2014) 58 Cal.4th 1266,
1336.) Because defendant committed murder in 1995, section

16 Briefly, the statute imposes a 10-year enhancement for
using a firearm in the commission of a listed felony, a 20-year
enhancement for discharging the firearm, and a 25-year-to-life
enhancement for discharging the firearm and causing great
bodily injury or death. (§ 12022.53, subds. (b)–(d).)

40
2933.2 does not apply to him, and he is instead entitled
to conduct credits up to a maximum of 15 percent of his
actual period of confinement. (§ 2933.1, subd. (c); Chism, at
pp. 1336–1337.) The trial court therefore must award defendant
118 days in custody credit, reflecting 15 percent of his 793 days of
presentence custody. On this point, the parties agree.

I. The trial court must amend the minutes to reflect
the striking of the prior prison term enhancements
Although the prosecution moved to strike the
enhancements under section 667.5, pertaining to defendant’s
alleged five prior prison terms, the minute order does not reflect
that the trial court granted that motion. The trial court
impliedly did so, however, asking defense counsel if there was
any objection to striking the enhancements, and then proceeding
to rule only on the allegations supporting sentencing under the
Three Strikes law and the section 667, subdivision (a)(1)
enhancement. The parties agree that the minutes should be
amended to reflect the striking of the section 667.5
enhancements, and we direct the trial court to do so.

41
 DISPOSITION
The judgment is amended to strike the 10-year
enhancement on count 1 under section 12022.53, subdivision (a);
to impose a 10-year enhancement on count 1 under
section 12022.5, subdivision (a); and to grant defendant 118 days
in conduct credit in addition to the 793 days of actual credit
already granted. As modified, the judgment is affirmed. The
trial court shall forward the modified abstract of judgment to the
Department of Corrections and Rehabilitation. The trial court
also shall amend the minutes for the November 28, 2018 hearing
to reflect the striking of the five section 667.5 enhancements.
CERTIFIED FOR PARTIAL PUBLICATION.

BENDIX, Acting P. J.

I concur:

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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CHANEY, J., Concurring and Dissenting.
I would conclude that the trial court imposed an
unauthorized sentence when it doubled Elliot Kimo Laanui’s
sentence on count 6 based on the “Three Strikes” law.
“As a rule, all sentence enhancements ‘shall be alleged in
the accusatory pleading and either admitted by the defendant in
open court or found to be true by the trier of fact.’ ” (People v.
Anderson (2020) 9 Cal.5th 946, 953 (Anderson).) “ ‘ “No principle
of procedural due process is more clearly established than that
notice of the specific charge, and a chance to be heard in a trial of
the issues raised by that charge, if desired, are among the
constitutional rights of every accused in a criminal proceeding in
all courts, state or federal.” [Citations.] “A criminal defendant
must be given fair notice of the charges against him in order that
he may have a reasonable opportunity properly to prepare a
defense and avoid unfair surprise at trial.” ’ [Citation.] This goes
for sentence enhancements as well as substantive offenses: A
defendant has the ‘right to fair notice of the specific sentence
enhancement allegations that will be invoked to increase
punishment for his crimes.’ ” (Ibid.)
In Anderson, the Supreme Court explained that “[a]
pleading that alleges an enhancement as to one count does not
provide fair notice that the same enhancement might be imposed
as to a different count. When a pleading alleges an enhancement
in connection with one count but not another, the defendant is
ordinarily entitled to assume the prosecution made a
discretionary choice not to pursue the enhancement on the second
count, and to rely on that choice in making decisions such as
whether to plead guilty or proceed to trial.” (Anderson, supra,
9 Cal.5th at p. 956.) “Fair notice requires that every sentence
enhancement be pleaded in connection with every count as to
which it is imposed.” (Id. at pp. 956–957.)
In People v. Garcia (1999) 20 Cal.4th 490, 502 (Garcia) the
Supreme Court concluded that “it is appropriate to allege
[application of the Three Strikes law] only once as to all current
counts.” Alleging Three Strikes treatment generally as to all
applicable counts, however, is not the same as alleging that the
Three Strikes law applies to specific counts and then requiring
the defendant to assume the allegation is universal.
Requiring a defendant to assume that a Three Strikes law
enhancement is pleaded as to expressly omitted counts because a
prosecutor has no discretion to not plead Three Strikes
enhancements is tantamount to requiring a defendant assume
Three Strikes treatment on counts to which the enhancement
would apply even if there is no Three Strikes allegation in the
pleading. That a prosecutor has a duty to do something does not
render it done; people who have duties to do things sometimes
fail to comply with those duties. In addition to violating a
defendant’s due process, deeming an enhancement alleged as to
all counts when it is expressly not alleged as to certain counts
may well enable sloppy pleading at best and devious practice at
worst. The consequence for a prosecutor’s failure to perform a
duty should not be borne by the defendant.
In 1984, our Supreme Court identified a distinction
between “two kinds of enhancements: (1) those which go to the
nature of the offender; and (2) those which go to the nature of the
offense.” (People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on
other grounds in People v. Ewoldt (1994) 7 Cal.4th 381, 401.) The
court identified that distinction based on language that was then
in Penal Code section 1170.1. (Tassell, at p. 91.) In 2004, the

2
Supreme Court clarified that this distinction does not apply to
the Three Strikes law: “The Three Strikes law, unlike
section 1170.1, does not draw any distinction between status
enhancements, based on the defendant’s record, and
enhancements based on the circumstances of the current
offenses, and the Three Strikes law generally discloses an intent
to use the fact of recidivism to separately increase the sentence
imposed for each new offense.” (People v. Williams (2004) 34
Cal.4th 397, 404–405; People v. Sasser (2015) 61 Cal.4th 1, 12.)
Garcia did not extend the distinction Tassell recognized or
otherwise apply either of its section 1170.1-specific categories of
enhancements to the Three Strikes law. Garcia identifies that
the Three Strikes law “is a single comprehensive and indivisible
sentencing scheme that either does or does not apply,” and on
that basis “it is appropriate to allege that status only once as to
all current counts.” (Garcia, supra, 20 Cal.4th at p. 502.) Garcia
still acknowledges the reality that the effect of the Three Strikes
law “may change from one count to another.” (Ibid.)
Garcia and Anderson are not mutually exclusive. And
Tassell’s offender-offense status distinction has no application
here. Prosecutors may allege Three Strikes status as to all
current counts in a single allegation. If they choose to specify
counts to which the enhancement applies, however, they should
be required to specify all counts for which the People allege
application. I would therefore conclude that the trial court’s
decision to double Laanui’s sentence as to count 6 constitutes an
unauthorized sentence, and would reverse on that basis.
I concur with my colleagues’ opinion in all other respects.

CHANEY, J.

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