Filed 2/26/21 P. v. Gillard Ca1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A155138
v.
TODD LAMONT GILLARD JR., (Contra Costa County
Super. Ct. No. 05-141209-7)
Defendant and Appellant.
Defendant appeals from a judgment of conviction, following a jury trial,
of shooting at an occupied vehicle, street terrorism, being a felon in
possession of a firearm, and resisting arrest. The trial court found true that
defendant suffered a prior serious felony conviction and sentenced him to a
total term of 22 years eight months in prison. On appeal, defendant contends
(1) the convictions for shooting at an occupied vehicle and felon in possession
of a firearm must be reversed because the prosecutor committed misconduct
during closing argument; (2) the one-year enhancement should be stricken;
and (3) the case should be remanded to allow the trial court to exercise its
discretion to strike the five-year enhancement pursuant to Senate Bill
No. 1393 (2017-2018 Reg Sess.). He also asks this court to conduct an
independent review of the trial court’s denial of his Pitchess1 motion.
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
1
The Attorney General does not oppose an independent review of the
Pitchess ruling and concedes the one-year enhancement should be stricken,
but maintains remand is unnecessary as to the five-year enhancement.
We order the one-year enhancement stricken, remand the matter to the
trial court to consider whether to strike the five-year enhancement, and
otherwise affirm the judgment.
BACKGROUND2
The district attorney filed informations relating to multiple defendants
in two different cases, which were later consolidated by the court. As
relevant here, defendant was charged with one count of conspiracy to commit
murder (Pen. Code, § 182, subd. (a)(1)3—count 1, two counts of street
terrorism (§ 186.22, subd. (a)—counts 2 & 5), attempted premeditated,
deliberate, and willful murder (§§ 664, subd. (a), 187, subd. (a)—count 3),
shooting at an occupied vehicle (§ 246—count 4), felon in possession of a
firearm (§ 29800, subd. (a)(1)—count 6), and resisting arrest (§ 148, subd.
(a)(1)—count 7). It was further alleged that counts 1, 3, 4, 6, and 7 were
committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1) &
(d)); that defendant personally and intentionally discharged a firearm
causing great bodily injury in the commission of counts 3 and 4 (§ 12022.53,
subds. (b)-(e)(1)); that defendant had previously suffered a serious felony
conviction for street terrorism (§§ 667.5, subd. (b), 186.22, subd (a), 1170.12,
667, subds. (a)(1) & (b)-(i)) and had previously suffered a felony conviction
which resulted in a prison term (§ 667.5, subd. (b)).
2 Given the nature of the issues raised on appeal, we relay any
relevant facts on an issue-by-issue basis below.
3All further statutory references are to the Penal Code unless
otherwise indicated.
2
The jury convicted defendant of counts 2, 4, 6 and 7. It found
defendant not guilty on the remaining counts and did not find true the gang
and firearm use allegations. The trial court found true the section 667,
subdivision (a)(1) and section 667.5, subdivision (b) allegations.
The trial court sentenced defendant to 22 years eight months in prison,
composed of a seven-year upper term for count 4 (shooting at an occupied
vehicle) and two consecutive eight-month terms for counts 2 (street
terrorism) and 6 (felon in possession of a firearm). The aggregate term of
eight years four months was then doubled to 16 years eight months in
accordance sections 667, subdivisions (e)-(i) and 1170.12, to which was added
a consecutive five-year enhancement for the section 667, subdivision (a)(1)
finding and a consecutive one-year enhancement for the section 667.5,
subdivision (b) finding.4
DISCUSSION
Prosecutorial Misconduct
Background
The victim testified he was on his way to a mall when he noticed a red
Camaro driving alongside him. He saw two people in the car and recognized
the front passenger as defendant. Defendant was “laughing and smiling,” but
the victim could not tell what the driver was doing. The victim decided to
exit the freeway and saw the Camaro exit behind him. At an intersection,
the Camaro merged into his lane and got directly behind him. The victim
leaned down, looked in his rearview mirror, and saw “a hand out the right
passenger window with a pistol.” Then “shots rang from the right side of the
4 The court also imposed a consecutive one-year county jail term for
count 7 (misdemeanor resisting arrest) which was “set separately” to the
other counts.
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Camaro at my car.” The Camaro circled his car and drove away. He saw that
defendant, who had a “smirk” on his face, was still in the front passenger seat
of the Camaro. The victim, who had been shot in the “upper left shoulder,
back area,” drove to the mall and had someone call an ambulance. When
officers arrived, the victim told them defendant had shot him.
Defendant testified on his own behalf. According to defendant, he and
two friends, whose names he could not recall, were driving to the mall. While
on the freeway, the driver and the friend, who defendant said was in the front
passenger seat, said someone was staring at them and pointed to the victim.
Defendant, recognizing the victim, said, “ ‘That’s just [the victim] from North,
he ain’t nobody,’ like ‘Don’t even trip off him.’ ” Defendant went back to
playing a game on his phone, when he heard the front occupants say,
“ ‘Watch out.’ ” He put his head down, “thinking somebody going to start
shooting at us.” He heard “[r]apid fire, like gunfire” and realized “the shots
weren’t hitting our car, the shots was really going out.” Defendant thought,
“ ‘Oh, they probably getting on them before they getting on us.’ ” When he
realized they shot at the victim, he asked “ ‘What the fuck y’all do?’ ” The
driver and passenger stated, “ ‘Man, he was reaching,’ ” indicating they
thought the victim was reaching for a gun. Defendant stated he had known
the victim for some time but there had “never been an issue” between the
two.
In closing argument, defense counsel stated that one of the
prosecution’s theories was that defendant aided and abetted the shooting but
argued “they presented no evidence. There’s nothing that’s been presented
that [defendant] encouraged, facilitated, said ‘Get on ‘em. . . .’ [¶] And so if
there was evidence that [defendant] in some way encouraged or aided or
abetted, you could come back under this theory. . . . . [¶] . . . We do know that
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you do have to live your life with your head on a swivel because somebody can
take you down, take you out at any time if you’re [defendant]. So people are
watching. And they say, ‘Why is this guy looking [at] the car, [defendant]?’
[¶] ‘He’s nobody. That’s [the victim.]’ [¶] Aiding and abetting. So just to be
clear, I—I’m not going . . . to spend much time on the jury instruction. Being
present doesn’t make you an aider or abettor.”
During the prosecutor’s rebuttal, the following colloquy occurred:
“[Prosecutor:] In addition, the defendant testifies and he puts his
credibility at issue. He says: I’m a good and honest man; well other
than having a gun when I’m on felony probation. And other than
ditching the gun where someone, even a kid, could find it. And lying to
the cops when they’re looking for guns. And lying to the judge who sent
me to prison. And saying I didn’t have a gun. And falsely accusing the
cops of making that up. Other than that, I am a good and honest man.
[¶] . . . [¶]
“The other thing that is frankly ironic about the argument you just
heard from the defense is he says, ‘Well, he doesn’t want to snitch on
these guys who were in the car with him on [the day of the shooting].’
[¶]
“So here’s what you’re being asked to believe by the defense. And this
is key. You’re being asked to believe that he would be willing to get up
here, lie under oath to protect other people, but would be honest and
tell the truth about things that he did, that he wouldn’t lie to protect
himself. He’s not going to snitch on other people. He’s going to not
snitch on himself. He’s not going to tell the truth if the truth hurts
him. If he’s willing to lie to protect others, he’s willing to lie to protect
himself. [¶]
“And frankly, if even the defense credited what the defendant said,
remember how the defendant said: ‘Oh, this all just kind of happened
at the last second. Suddenly, somebody goes “watch out, watch out,”
and then shooting happened. I had no idea it was going to happen.’
“If the defense wanted you to believe that testimony, and said, ‘Oh,
well, he was telling the truth about that,’ they would have asked for a
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self-defense or imperfect self-defense instruction. They would have
said, ‘Well, wait a minute, even if he was involved in what happened’—
“[Defense Counsel]: Objection.
“[Court]: Sustained.
“[Prosecutor]: Okay. But that’s how ridiculous the defendant’s story is,
that suddenly these guys out of the blue, but that’s the only evidence.
And, again, you have no self-defense or imperfect self-defense
instructions.
“[Defense Counsel]: Objection.
“[Court]: Sustained.”
Analysis
Defendant maintains the prosecutor committed misconduct by
improperly shifting the burden of proof.
The Attorney General asserts defendant forfeited this issue by failing
to object on that ground and failing to request a curative admonition.
We agree the issue was forfeited. “ ‘ “[A] defendant may not complain
on appeal of prosecutorial misconduct unless in a timely fashion—and on the
same ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard impropriety.” ’ ” (People
v. Pearson (2013) 56 Cal.4th 393, 426.)
Anticipating forfeiture, defendant urges us to consider his claim as one
for ineffective assistance of counsel (IAC).
To establish ineffective assistance of counsel, “the defendant must first
show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the
defendant must show resulting prejudice, i.e., a reasonable probability that,
but for counsel’s deficient performance, the outcome of the proceeding would
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have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) A
reviewing court can conclude an IAC claim lacks merit without deciding
whether counsel’s performance was deficient if the record shows lack of
sufficient prejudice. (In re Ross (1995) 10 Cal.4th 184, 204; Strickland v.
Washington (1984) 466 U.S. 668, 697 [“there is no reason for a court deciding
an ineffective assistance claim to . . . address both components of the inquiry
. . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice . . . that course should be followed”].)
Here, there was no prejudice. The court instructed the jury that the
prosecution had the burden of proof; that the only evidence the jury could
consider was “the sworn testimony of witnesses, the exhibits admitted into
evidence, and anything else” the court said could be considered as evidence;
that “[n]othing that the attorneys say is evidence,” including what they say in
“their opening statements and closing arguments”; and if the jurors believed
the “attorneys’ comments on the law” conflicted with the court’s instructions,
then they “must follow” the court’s instructions. The trial court also
sustained defense objections to some of the prosecutor’s questions and
instructed the jury to ignore testimony for which an objection had been
sustained, emphasizing only admissible evidence could be considered. “ ‘We
presume the jury understood and followed’ ” the trial court’s instructions and
directives. (People v. Sanchez (2019) 7 Cal.5th 14, 55.) In addition, the
objected-to comments were only a fraction of the prosecutor’s closing
argument.
There was also abundant evidence tying defendant to the shooting.
The victim positively identified defendant as the front passenger in the car
and told officers shortly after the incident that defendant shot him.
Defendant himself testified that he was in the Camaro, that the other two
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passengers told him there was a gun and ammunition in the car, and that
after the shooting, he removed his ankle monitor, data from which showed
defendant in the area on the date and time of the shooting and which was
later found in a dumpster along with ammunition of the type fired at the
victim.
In sum, there is no reasonable probability that but for counsel’s
asserted failure to object to the prosecutor’s closing argument the outcome
would have been different. We therefore reject defendant’s IAC claim
Five-Year Enhancement5
Defendant asserts the case must be remanded to allow the court to
exercise its discretion to strike the section 667, subdivision (a)(1)
enhancement.
Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.)
vested sentencing courts with discretion to strike enhancements imposed
under section 667, subdivision (a) for prior serious felony convictions. (People
v. Ellis (2019) 43 Cal.App.5th 925, 933; People v. Garcia (2018)
28 Cal.App.5th 961, 971.)
Where “the record shows that the trial court proceeded with sentencing
on the . . . assumption it lacked discretion, remand is necessary so that the
trial court may have the opportunity to exercise its sentencing discretion at a
new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing
decisions made in the exercise of the “informed discretion” of the sentencing
court,’ and a court that is unaware of its discretionary authority cannot
exercise its informed discretion.” (People v. Brown (2007) 147 Cal.App.4th
5 As previously mentioned, the trial court also imposed a one-year
enhancement pursuant to section 667.5, and the Attorney General concedes
this enhancement should be stricken.
8
1213, 1228.) However, when the record shows that “ ‘the trial court would
not have exercised its discretion even if it believed it could do so, then
remand would be an idle act and is not required.’ ” (People v. Gamble (2008)
164 Cal.App.4th 891, 901.)
The Attorney General agrees Senate Bill No. 1393 (2017-2018 Reg.
Sess.) is applicable, but claims remand is unnecessary. While acknowledging
the trial court “did not explicitly state it would not strike the . . .
enhancement if given the discretion to do so,” he contends the court’s “intent
. . . was clear” given the court’s comments in denying defendant’s Romero
motion6 to dismiss his prior strike,7 and in explaining “what it saw as
‘circumstances in aggravation.’ ”8
6 Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504,
the court may in certain cases and in the interest of justice strike an
allegation of a prior felony conviction.
7 In denying defendant’s Romero motion, the court stated it had
considered the nature of defendant’s present offense as well as those of the
prior strike and determined “there is no indication whatsoever that the
defendant has reformed.” Defendant had “continued to associate with gang
members and commit serious violent crimes,” had “not complied with any
grant of probation,” and had an “extensive history of criminal conduct.”
8 In explaining the “circumstances in aggravation,” the court stated the
“crime involved great violence, great bodily harm and viciousness”; the victim
was shot and wounded in broad daylight on a busy public thoroughfare;
defendant was “within hours from his release from custody” when the victim
was shot, who was not a gang member but “just happened to be innocently
out driving and targeted”; defendant is an “active participant in street
terrorism and was convicted of this crime”; defendant had “been involved in
multiple shootings” and had “an ongoing history of gun possession and gun
violence,” all of which indicated a “serious danger to society” and a “pattern of
regular or increasing serious criminal conduct”; and he was on parole at the
time the crime was committed. The court found no circumstances in
mitigation.
9
The Attorney General cites to two cases. The first is People v. McVey
(2018) 24 Cal.App.5th 405, 409 which involved a firearm enhancement.
Under the applicable statute, the trial court had discretion to impose a low,
middle or high term. During sentencing, the court stated “ ‘the high term . . .
[was] the only appropriate sentence’ ” on the enhancement. (Id. at p. 419.)
The Court of Appeal concluded remand was unnecessary “[i]n light of the
trial court’s express consideration of the factors in aggravation and
mitigation, its pointed comments on the record, and its deliberate choice of
the highest possible term for the firearm enhancement.” (Ibid.)
The second case is People v. Jones (2019) 32 Cal.App.5th 267, 272
which, as here, involved a five-year enhancement under section 667,
subdivision (a)(1). The Court of Appeal concluded remand was unnecessary
given the trial court’s statements when denying the defendant’s motion for
new trial and during sentencing. (Id. at pp. 273-274.) Additionally, on the
only count where the trial court “could have exercised leniency in sentencing
. . . it did not”; rather, the court, despite already having imposed a life term
with parole, imposed the maximum term “knowing that when doubled, the
term would add two additional years to defendant’s sentence over what he
would have served had the court imposed the midterm.” (Id. at p. 274.)
The circumstances here are different. Although the trial court imposed
a significant sentence—22 years and eight months—as requested by the
prosecution, and which included the high term for count 4 (shooting at an
occupied vehicle) and the misdemeanor resisting arrest count, the court
imposed one-third the midterm for counts 2 (street terrorism) and 6 (felon in
possession of a firearm). And while it is clear the court was of the view
defendant should receive a stiff sentence, we cannot conclude that its
comments were so unequivocal as to exclude the possibility the court would
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exercise its discretion afforded under Senate Bill No. 1393 (2017-2018 Reg.
Sess.) to strike the section 667, subdivision (a) enhancement. (See People v.
McDaniels (2018) 22 Cal.App.5th 420, 428 [remand proper; although court
“imposed a substantial sentence . . . it expressed no intent to impose the
maximum sentence,” it imposed the midterm for being a felon in possession of
a firearm and ran it concurrently to the principle term, and struck four prior
convictions it had found true].)
Pitchess Review
Prior to trial, defendant filed a Pitchess motion seeking disclosure of
personnel records pertaining to Department of Justice Special Agent Michael
Mattson and another officer.9 Defendant sought documents maintained by
the Contra Costa District Attorney’s Office or the California Department of
Justice pertaining to Mattson, which recorded or reflected “illegal/false arrest
or detention;” “filing false charges;” or “conduct reflecting discredit, including
but not limited to fabrication of evidence and dishonesty.” The Attorney
General and Department of Justice filed an opposition brief. The trial court
granted the motion and held an in-camera hearing with the litigation
coordinator from the Department of Justice. The court concluded “there was
no discoverable items.”
In his opening brief, defendant asked this court for an independent
review of the in-camera hearing to determine if the trial court abused its
discretion. We ordered the trial court to provide us with the sealed transcript
of the Pitchess proceedings, and the Attorney General does not object to the
requested review.
Pitchess establishes that “a criminal defendant [can] ‘compel discovery’
of certain relevant information in the personnel files of police officers by
9 Agent Mattson testified regarding 2008 uncharged crimes evidence.
11
making ‘general allegations which establish some cause for discovery’ of that
information and by showing how it would support a defense to the charge
again him.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019;
see §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.)
“If the trial court concludes the defendant has fulfilled these
prerequisites and made a showing of good cause, the custodian of records
should bring to court all documents ‘potentially relevant’ ” or “potentially
responsive to defendant’s specific request.” (People v. Mooc (2001) 26 Cal.4th
1216, 1226, 1228-1230.) The trial court must make a record of the documents
it examines in ruling on defendant’s motion sufficient to allow for appellate
review. (Id. at p. 1229.) The trial court may photocopy the documents and
place them in a confidential file, prepare a list of the considered documents,
or “simply state for the record what documents it examined.” (Ibid.) The
hearing transcript and any relied-upon documents copied for the record must
be sealed. (Ibid.) On appeal, we review the “record of the documents
examined by the trial court” to determine if the court abused its discretion in
failing to disclose any records. (Ibid.)
Having independently reviewed the sealed transcript of the Pitchess
proceeding, we conclude the court sufficiently complied with proper Pitchess
procedures and did not erroneously withhold any information. (People v.
Fuiava (2012) 53 Cal.4th 622, 646-648.)
DISPOSITION
The matter is remanded to allow the trial court to consider whether to
strike the five-year enhancement imposed under section 667, subdivision
(a)(1). The court is also directed to strike the one-year enhancement imposed
under section 667.5, subdivision (b). In all other respects, the judgment is
affirmed.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A155138, People v. Gillard
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