People v. Wilson CA1/4

Filed 5/6/21 P. v. Wilson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A157926,
v.
ANTHONY WILSON, (Alameda County
Super. Ct. No. 619131A)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A157930

v. (Alameda County
AODERI SAMAD, Super. Ct. No. 619131B)
Defendant and Appellant.
THE PEOPLE,
Plaintiff and Respondent, A157931

v. (Alameda County
TYRONE TERRELL, Super. Ct. No. 619131E)
Defendant and Appellant.

Anthony Stevens was shot and killed while attempting to flee from a
group of six men. A jury found three of the men guilty of murder; Anthony
Wilson and Tyrone Terrell were convicted of second degree murder, and
Aoderi Samad was convicted of first degree murder. (Pen. Code, § 187;

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statutory references are to this code.) In separate appeals, which we consider
together, Wilson, Terrell and Samad allege multiple trial errors. Terrell and
Samad also allege sentencing errors. We affirm the judgments.
BACKGROUND
I. The Prosecution Case
Stevens was murdered on 92nd Avenue in Oakland, near the
intersection of International Boulevard. Surveillance cameras captured the
incident from different angles, and the participants were all identified during
a subsequent police investigation.
A. The Murder
On the morning of July 9, 2016, Stevens made plans to get a haircut
from his cousin, who operated a barbershop on the corner of 92nd Avenue and
International Boulevard in East Oakland. At 10:08 a.m., Stevens parked a
white Toyota on 92nd Avenue, facing south toward International. He walked
to a store then returned to his car and sat in the front passenger seat.
Meanwhile, people gathered nearby to participate in a vigil for Roderick
Tucker, who had been murdered the previous night. Tucker, who was known
as T.J., had been sitting in a car on International Boulevard when he was
shot by unknown assailants. Kayla Walker attended T.J.’s vigil. On the
morning of July 9, she parked her car on 92nd Avenue behind Stevens and
noticed him reclining in the passenger seat of his car when she walked by.
At 10:18 a.m., a white Honda and silver Nissan traveling south on 92nd
drove past Stevens and stopped at the corner of International. Terrell and
Samad got out of the Honda, and Derick McFadden got out of the Nissan.
The drivers then turned around and parked both cars on the opposite side of
the street from Stevens. Wilson got out of the Honda, and Kermit Tanner got
out of the Nissan, accompanied by Wilson’s younger brother Xavier. The

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three men walked diagonally across the street, and as they passed the
driver’s side of Stevens’s car, Tanner and Wilson appeared to look inside. On
the sidewalk, Wilson stopped to tie his shoe and looked back at Stevens’s car
before the three men turned the corner onto International.
At 10:30 a.m., all six men walked back around the corner onto 92nd
Avenue. Kayla Walker, who had gone to get something from her car, walked
past the men as she was returning to the vigil, but she did not interact with
them. After Walker turned the corner, Samad, McFadden and Tanner turned
and walked toward the corner. Wilson and Terrell walked toward the white
car where Stevens sat. They approached opposite sides of the car, and Xavier
trailed behind Wilson.
Wilson looked in the back driver’s side window of the car, while Terrell
went to the front passenger side where Stevens was sitting and opened the
door. Almost immediately, Stevens stood up out of the car, raising his opened
left hand. Stevens had a gun in his right hand and held his right arm down
at his side as he faced Terrell, his back against the opened door. Then, as
Terrell moved his right hand to his waist, Wilson fired a gun, hitting the
window directly behind Stevens, whose face registered alarm. Stevens
pivoted around the door and ran toward International while Wilson and
Terrell fired multiple shots at him.
The other three men had not yet reached the corner when shots were
fired, and they all turned to look. Then Tanner ran around the corner.
Samad and McFadden fired guns at Stevens and then also retreated onto
International. Stevens fell to the ground, dropped his gun without ever firing
it, and began crawling toward the street, appearing to seek refuge behind a
parked car. As Stevens struggled to get away, Samad returned to 92nd
Avenue, fired at Stevens’s back, then ran around the corner. On

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International Boulevard, McFadden went down on the ground, holding his leg
as if he had been shot. Samad retrieved a gun that McFadden had dropped.
Then the three men hurried back to the Nissan on 92nd Avenue. On his way
to the car, Samad picked up the gun Stevens had dropped.
Kayla Walker, who heard the gunfire, took a different route to her car
when she felt safe to do so. She found Stevens, still alive but struggling to
breathe, and went for help. Emergency aid was rendered but Stevens died at
the scene. The doctor who performed Stevens’s autopsy determined that he
died from multiple gunshot wounds. The “worst” wound was inflicted by a
bullet that entered the right side of Stevens’s back and passed through his
liver and heart before exiting the left side of his chest.
B. The Investigation
Oakland Police Sergeant Michael Cardoza was assigned to investigate
Stevens’s murder. Cardoza was aware of surveillance cameras in the area
because he had assisted in the investigation of the murder of T.J. the
previous night. He obtained surveillance film, which recorded activity on
92nd Avenue and on International Boulevard during the period that Stevens
was killed.
On the day Stevens was murdered, Cardoza was notified about a “walk-
in gunshot victim” at Highland Hospital. The victim was Derrick McFadden,
who told the investigating officer that he was shot in North Oakland by an
unknown assailant in a black car with tinted windows. McFadden reported
that “[s]ome dude” had found him on the ground screaming and gave him a
ride to the hospital in exchange for $40. Oakland police had no information
verifying McFadden’s report of where and when he was shot. Cardoza
suspected McFadden was involved in Stevens’s murder. As McFadden was
from Berkeley, Cardoza requested assistance from a police officer who had

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been a school resource officer and coach at Berkeley High School. The officer
identified four of the six men who appeared in surveillance video of the
Stevens murder: Samad, Terrell, McFadden, and Tanner.
On the early morning of July 21, 2016, police executed warrants at an
apartment in Vallejo, where they found twelve people, including Wilson,
Samad and Tanner. In the living room of the unit, there was a memorial to
T.J., who was Wilson’s half-brother. Two loaded pistols were found in a toilet
tank and another was found under the furnace. In a bedroom, police found
Wilson’s identification, ammunition, gun magazines, and two loaded pistols.
On July 21, 2016, police also executed warrants at two residences in
Sacramento that had been connected to Terrell, but he was not found at
either location. On September 20, 2016, police located Terrell at a residence
in Elk Grove, where he was taken into custody after he fell through a ceiling
in the house.
C. Statements by the Defendants
On July 21, 2016, Sargent Cardoza interviewed Wilson for a few hours,
showing him still photographs from the surveillance video of the Stevens
shooting. Near the end of the interview, Wilson identified himself in some of
the photos, admitted that his girlfriend Rayquel L. owned the white Honda,
and apologized for wasting Cardoza’s time. After the interview, Wilson called
Rayquel and Wilson’s father got on the phone. Wilson told his father that he
had not been involved in the Stevens shooting and did not know anything
about it, but was afraid he was in trouble because “[t]hey came with
pictures.” During a subsequent call, Wilson told Rayquel that he knew he
had not done anything, but explained to her that “what they showed me
made it seem like I did.”

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 On July 21, 2016, Cardoza also interviewed Samad. Samad admitted
knowing T.J., but denied attending his vigil. Cardoza showed Samad still
photos and also played part of the video. Samad denied that he was the
person in the pictures and claimed not to recognize the people who shot
Stevens. After the interview, Samad called the mother of his child and
instructed her to register his car in her name. Samad said he “wanted to
fold,” but he would “never break for nobody.”
In September 2016, Terrell made several phone calls after his arrest.
Terrell complained to his girlfriend and to his mother that someone told the
police where he was hiding. To his mother, Terrell also denied involvement
in the shooting but told her, “[t]hey tried to show me a picture and say it was
me.”
II. Criminal Proceedings
In December 2017, the Alameda County District Attorney charged
Wilson, Terrell, Samad, McFadden and Tanner with the murder of Anthony
Stevens. Multiple enhancement allegations were alleged, including that
Wilson, Terrell, Samad and McFadden personally discharged a firearm
causing great bodily injury and death. Wilson, Terrell and Samad were also
charged with a second count of being a felon in possession of a firearm.
In November 2018, trial proceedings began. On November 15, the case
against Tanner was set for a possible disposition. The record does not
disclose how the matter was resolved, but Tanner did not participate further
in the trial proceedings. In December 2018, the court denied Terrell’s
severance motion, and a jury was selected. On January 8, 2019, the People
began presenting evidence, resting their case on January 23. Thereafter,
Wilson testified on his own behalf and Terrell testified on his own behalf.
Samad and McFadden did not call witnesses.

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III. The Defense Cases
A. Wilson
Wilson testified that he was very close to his half-brother T.J., who was
a few years younger than him. On the night T.J. was shot, Wilson went to
the crime scene to find out what happened but the police would not give him
any information. Then he went to the hospital to be with T.J. After T.J.
died, Wilson stayed up all night with family and friends. The next morning,
he tried to find out what happened to his brother. He took Rayquel L.’s car,
grabbed a gun for protection and returned to the scene where T.J. had been
killed. Several friends came along for support.
Wilson parked on 92nd Avenue because International Boulevard is a
busy street and he did not want to get pulled over when he was carrying a
gun. Wilson noticed Stevens in a white car but at that point he was focused
on getting to the location where T.J. had been killed. He did not know about
the vigil until he got to International Boulevard. People shared some
information with Wilson, but nobody identified the perpetrators. Wilson
became very sad and told Samad it was time to go. As they walked back
down 92nd Avenue, Wilson saw Stevens again and decided to ask him about
T.J.’s murder. Terrell had the same idea and said, “let’s ask him.”
Wilson saw Stevens in the front passenger seat, but the rear window on
the driver’s side was down, so Wilson went there to speak with Stevens. He
asked, “Do you know what happened to my brother?” and Stevens replied,
“No.” Then Wilson saw the right front passenger door “pop” open. As
Stevens began to step out of the car, Wilson saw that Stevens was holding a
gun in his hand that had a “long clip hanging out of it.”
Wilson testified that Stevens raised his gun as he got out of the car. To
explain what Stevens did, Wilson demonstrated with his body and the trial

7
court described the action for the record. According to Wilson, when Stevens
started to get out of the car, his right arm was bent to his waist and the gun
was in his right hand. Then he raised his right arm straight out at shoulder
level.
Wilson testified that when he realized Stevens had a gun, he said the
word “Gun,” but he did not think Terrell heard him because everything
happened so fast. When Stevens raised the gun, Wilson thought Stevens was
about to kill Terrell, so he “reacted” by pulling out his gun and shooting first.
Wilson was afraid for his own life and for the safety of his friends because
Stevens had enough rounds to kill them all. At trial, Wilson could not recall
how many shots he fired, but testified that he just kept shooting out of fear.
Wilson fled the scene with Terrell and Xavier, his only thought that
they were in danger. He went to his home in Oakland, packed some
belongings, including his PlayStation, and went to his father’s home in
Vallejo. He did not tell his parents what had happened because he was
afraid information would “get out” and be misrepresented. He sold the gun
he used to shoot Stevens because he was afraid of being charged with
murder. When police executed the warrant at the Vallejo apartment, Wilson
knew they were there to arrest him for the Stevens murder, so he hid two
guns in the toilet.
After he was arrested, Wilson denied involvement in the incident
because he was scared and he did not think Sargent Cardoza would believe
his version of the events. Wilson testified that there was no doubt in his
mind that he needed to use deadly force to defend himself from Stevens, but
before he met with his lawyer, he did not realize that he had a self-defense
claim.

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 B. Terrell
Terrell testified that he grew up with Wilson in Berkeley, and T.J. was
like a little brother to him. In 2014 or 2015, Terrell moved to Sacramento
with his mother. When Terrell heard about T.J.’s shooting, he armed himself
and drove to the hospital in Oakland. Terrell brought his gun, which was
always loaded, because Oakland is a dangerous place. After T.J. died, Terrell
went to Wilson’s house, where people were “reminiscing” and the atmosphere
was very sad. Terrell drank, smoked marijuana, and slept for only an hour.
The next morning, Terrell accompanied a group of men to T.J.’s vigil.
Terrell knew that additional shootings often happen at street-side vigils, but
he decided to go because he wanted information. After about 30 minutes,
somebody said they were ready to leave, so the group headed back to the cars.
Terrell was aware that he was walking next to Wilson but was not paying
attention to the other guys. As they walked down 92nd Avenue, Terrell
noticed Stevens sitting up in the passenger seat of a Toyota. He assumed
Stevens was “there for TJ,” and told Wilson that he was going to ask if
Stevens knew anything about T.J.’s death.
Terrell testified that he made eye contact with Stevens before he
approached the passenger door and opened it with his right hand. His
behavior was not threatening and he denied trying to intimidate Stevens, but
he admitted that opening the door was “dumb” and a “big mistake.” Terrell
recalled using a normal voice to ask if Stevens had been in the area the
previous day, stepping back as he asked the question. Stevens appeared
“angry” and “mad” as he responded, “What the fuck you open my door for?”
At that point, Terrell noticed Stevens had a gun and “got scared.” Terrell
moved his hands to his waist, where he had his gun, and stepped back as he
said “[m]y bad for opening your door. I’m only here for TJ.” Then Stevens got

9
out of the car and moved toward Terrell, raising his gun. Stevens’s arm was
coming up to “mid-chest level” when Terrell heard a gunshot. Terrell thought
that Stevens had fired the gun and that he was about to die, so he pulled out
his gun and started shooting.
Terrell testified that he did not try to kill Stevens. He kept shooting as
Stevens ran away from him because Stevens had a gun and was still very
close. He was just protecting himself and trying to put distance between
them so that he could safely escape.
After the shooting, Terrell went to Wilson’s home and then to the
apartment in Vallejo. Before he returned to Sacramento, Terrell threw his
cellphone out the car window and sold his gun to someone in Richmond.
Terrell admitted that he tried to hide in an attic when police came to arrest
him in Sacramento. He also admitted lying about his involvement in the
shooting before he learned about fingerprint evidence connecting him to the
crime. A latent print examiner matched a couple of fingerprints lifted from
the inside of Stevens’s passenger-side door handle to Terrell’s right hand.
IV. Jury Verdicts and Sentence
The case was submitted to the jury on the morning of February 4, 2019.
During deliberations, the jury reviewed surveillance videos and other
physical evidence, returning verdicts on February 6 at 4:00 p.m.
Wilson and Terrell were each found guilty of second degree murder
(§ 187, subd. (a)), and of being a felon in possession of a firearm (§ 29800,
subd. (a)(1)). For each of them, the jury found true the full range of firearms
allegations: that each personally and intentionally discharged a firearm
causing great bodily injury and death (§§ 12022.7, subd. (a) & 12022.53,
subd. (d)), discharged a firearm within the meaning of section 12022.53,

10
subdivision (c), and used a firearm within the meaning of sections 12022.5,
subdivision (a) and 12022.53, subdivision (b).
The jury found Samad guilty of first degree murder (§ 187, subd. (a))
and of being a felon in possession of a firearm (§ 29800, subd. (a)(1)), and
found true all the same firearms allegations—that Samad personally and
intentionally discharged a firearm causing great bodily injury and death
(§§ 12022.7, subd. (a) & 12022.53, subd. (d)), discharged a firearm within the
meaning of section 12022.53, subdivision (c), and used a firearm within the
meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b).
McFadden was found guilty of voluntary manslaughter (§ 192,
subd. (a)), and of personally using a firearm (§ 12022.5, subd. (a)). Because
McFadden has not filed an appeal with this court, we address his
involvement only as it is pertinent to his codefendants’ appeals.
Defendants were sentenced on July 19, 2019. Considering Wilson,
Terrell, and Samad separately, the court concluded for each of them that the
defendant was not eligible for probation, and that there were multiple
aggravating sentencing factors and no mitigating factors. Wilson and Terrell
each received an aggregate sentence of 40 years to life, comprising the
following terms: 15 years to life for second degree murder; a consecutive term
of 25 years to life for personally and intentionally discharging a firearm
causing death; a concurrent term of eight months for being a felon in
possession of a firearm; and stayed terms of 20 years, 10 years and 10 years
for the other firearm enhancements. Samad’s sentence was 50 years to life,
which included: 25 years to life for first degree murder; a consecutive term of
25 years to life for personally and intentionally discharging a firearm causing
death; a concurrent term of eight months for being a felon in possession of a

11
firearm; and stayed terms of 20 years, 10 years and 10 years for the other
firearm enhancements.
DISCUSSION
I. Sufficiency of the Evidence Claims
Samad and Terrell contend their convictions must be reduced to
voluntary manslaughter because there is insufficient evidence that they
killed Stevens with malice aforethought. Samad contends further that his
conviction for first degree murder must, at the very least, be reduced to
second degree murder because there is insufficient evidence that he acted
with premeditation and deliberation.
We review these claims under the substantial evidence standard, which
requires us to consider the entire record in the light most favorable to the
judgment. (People v. Clark (2011) 52 Cal.4th 856, 942.) “ ‘Substantial
evidence includes circumstantial evidence and any reasonable inferences
drawn from that evidence.’ ” (Id. at p. 943.) “We ‘ “ ‘presume in support of
the judgment the existence of every fact the trier could reasonably deduce
from the evidence.’ ” ’ ” (Ibid.)
A. Legal Principles
Murder is “the unlawful killing of a human being . . . with malice
aforethought.” (§ 187.) “ ‘Express malice is an intent to kill. . . . Malice is
implied when a person willfully does an act, the natural and probable
consequences of which are dangerous to human life, and the person
knowingly acts with conscious disregard for the danger to life that the act
poses.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 941–942 (Beltran).)
“A killing with express malice formed willfully, deliberately, and with
premeditation constitutes first degree murder. [Citation.] ‘Second degree
murder is the unlawful killing of a human being with malice aforethought

12
but without the additional elements, such as willfulness, premeditation, and
deliberation, that would support a conviction of first degree murder.’ ”
(Beltran, supra, 56 Cal.4th at p. 942.)
“Manslaughter, a lesser included offense of murder, is an unlawful
killing without malice. [Citations.] Section 192 establishes three kinds of
manslaughter: voluntary, involuntary, and vehicular.” (People v. Elmore
(2014) 59 Cal.4th 121, 133.) Voluntary manslaughter, the crime at issue
here, is deemed “less blameworthy than murder because of the attendant
circumstances and their impact on the defendant’s mental state. Two factors
may preclude the formation of malice and reduce murder to voluntary
manslaughter: heat of passion and unreasonable self-defense.” (Ibid.)
Because these mitigating circumstances negate the intent element of a
murder charge, when issues of provocation or imperfect self-defense are
presented by the evidence, the prosecution has the burden of proving these
circumstances were lacking in order to establish the murder element of
malice. (People v. Rios (2000) 23 Cal.4th 450, 460–461.)
B. Terrell’s Conviction is Supported By Substantial Evidence
Terrell contends his murder conviction cannot stand because there is
insufficient evidence he acted with express malice. According to this
argument, the jury’s finding that Terrell formed the “explicit intent to kill”
must have been based on improper speculation because it is inconsistent with
the video evidence, which shows that when Terrell “fired off a few rounds,” he
was at “all times” moving “away” from Stevens. (Italics omitted.)
Express malice—the intent to kill—can be inferred from factual
circumstances surrounding a killing, including the defendant’s action.
(People v. Smith (2005) 37 Cal.4th 733, 741–742.) Here, there is evidence
that after Terrell’s friend fired a gun at Stevens, Terrell pulled out his gun

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and shot at Stevens multiple times. That Terrell stepped back as he fired
does not change the fact that Terrell fired his gun at the back of a fleeing
victim. “[T]he very act of firing a weapon ‘ “in a manner that could have
inflicted a mortal wound had the bullet been on target” ’ is sufficient to
support an inference of intent to kill.” (Id. at p. 742.) Thus, the evidence
supports an inference that Terrell had the intent to kill.
Further, Terrell overlooks that malice can be implied from a willful act,
“the natural and probable consequences of which are dangerous to human
life,” when the person “knowingly acts with conscious disregard for the
danger to life that the act poses.” (People v. Gonzalez (2012) 54 Cal.4th 643,
653.) The finding that Terrell acted with implied malice is supported by
substantial evidence that he and his friends accosted Stevens and then fired
guns at him from multiple directions as he attempted to run away.
Terrell contends that even if the evidence might otherwise support a
finding of malice, the prosecution failed to rebut evidence that Terrell acted
in unreasonable self-defense. “Imperfect self-defense is the actual, but
unreasonable, belief in the need to resort to self-defense to protect oneself
from imminent peril. [Citations.] When imperfect self-defense applies, it
reduces a homicide from murder to voluntary manslaughter because the
killing lacks malice aforethought.” (People v. Vasquez (2006) 136 Cal.App.4th
1176, 1178.) “A person who actually believes in the need for self-defense
necessarily believes he is acting lawfully.” (In re Christian S. (1994)
7 Cal.4th 768, 778.)
The video evidence shows that Terrell opened the door of a car that did
not belong to him, stepped back far enough for the passenger to alight, and
then fired his gun at the man’s back as the man attempted to run away. The
jury could have concluded from the video that Stevens never raised, pointed,

14
or fired his gun, but only ran from his assailants. This evidence substantially
supports a finding that Terrell killed with malice rather than because of a
mistaken belief that he needed to defend himself against Stevens.
Terrell contends his trial testimony corroborates video evidence
showing that he was frightened by unexpected gunfire and actually believed
he was in danger even if that belief was inaccurate. Terrell testified that he
thought the gunshot that shattered the car window was fired by Stevens
rather than Wilson. However, the jury could have found Terrell’s testimony
was not credible and concluded reasonably that Terrell was never afraid for
his own life. Or the jury could have found that any fear Terrell experienced
when he heard the initial gunshot dissipated quickly when he realized that
Stevens was the target rather than the shooter. Even if the jury believed
that Terrell initially perceived Stevens as a threat, there is substantial
evidence that Terrell continued to fire bullets at Stevens after he realized
that his own life was not in peril.
By separate argument, Terrell contends the jury was required to find
that he acted in the heat of passion when he shot Stevens. “A heat of passion
theory of manslaughter has both an objective and a subjective component.”
(People v. Moye (2009) 47 Cal.4th 537, 549.) The objective component
requires proof that the killing was a reaction to provocation “ ‘that would
cause an emotion so intense that an ordinary person would simply react,
without reflection.’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1225 (Rangel),
italics omitted.) The subjective element requires proof that the defendant
killed “while under ‘the actual influence of a strong passion’ induced by such
provocation.” (Moye, at p. 550.)
Terrell characterizes the gunshot that Wilson fired at Stevens as an
unexpected provocative act that inflamed Terrell’s reason and impaired his

15
judgment, causing him to react by discharging his own weapon. But the
video shows that Terrell did not react rashly, by firing indiscriminately.
Terrell aimed his weapon and shot repeatedly at a man who was trying to
run away from the same gunshot that allegedly caught Terrell unaware.
Terrell simply ignores that Stevens never fired his gun at anyone and that
Terrell shot at Stevens multiple times while Stevens was attempting to run
away. These facts support a finding that no “ ‘ordinarily reasonable person of
average disposition’ ” would have reacted to Wilson’s gunshot as Terrell did
in this case. (See People v. Barton (1995) 12 Cal.4th 186, 201.)
C. Samad’s Conviction Is Supported by Substantial Evidence
Samad argues his conviction must be reduced to voluntary
manslaughter because there is evidence that he acted in unreasonable self-
defense and the prosecution failed to carry its burden of disproving this
mitigating circumstance. According to this argument, the video shows that
Samad heard gun shots, turned to find a man running toward him with a
gun, and reacted to the dangerous situation by firing his weapon. This
account of the incident omits many pertinent facts: All gunshots were fired
by Samad and his friends; the man who ran toward Samad was attempting to
get away from the gunshots; and, crucially, after the man was shot, dropped
his weapon and was crawling away, Samad came around the corner and shot
him in the back. These facts, established by substantial evidence, support
the jury’s finding that Samad did not act in unreasonable self-defense.
Samad contends that his reaction to Stevens was identical to the
reaction of McFadden, who was convicted of voluntary manslaughter, and
that he is less culpable than Wilson and Terrell because he did not initiate
the altercation with Stevens but only reacted to circumstances that made him
fear for his life. Samad was the only defendant who retreated to a location of

16
relative safety, around the corner from where Wilson and Terrell were
shooting, and then returned to shoot Stevens in the back while Stevens was
on hands and knees, unarmed and crawling into the street in an attempt to
escape the cross-fire. This evidence supports the finding that Samad acted
with malice and not out of fear for his own safety or the safety of his friends.
By separate argument, Samad contends his conviction must be reduced
to second degree murder because there is insufficient evidence of
premeditation and deliberation. “A verdict of deliberate and premeditated
first degree murder requires more than a showing of intent to kill. [Citation.]
‘Deliberation’ refers to careful weighing of considerations in forming a course
of action; ‘premeditation’ means thought over in advance.” (People v. Koontz
(2002) 27 Cal.4th 1041, 1080 (Koontz).) These elements may be established
by circumstantial evidence that supports an inference of premeditation and
deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 25 (Anderson).)
Anderson identifies three categories of relevant circumstantial evidence:
planning activity, motive evidence, and the manner or nature of the killing.
(Id. at p. 26–27.) These factors “ ‘are not exclusive, nor are they invariably
determinative. [Citation.] “ ‘Anderson was simply intended to guide an
appellate court’s assessment whether the evidence supports an inference that
the killing occurred as the result of preexisting reflection rather than
unconsidered or rash impulse.’ ” ’ ” (People v. Lee (2011) 51 Cal.4th 620, 636
(Lee).)
In this case, Samad brought a loaded handgun to a vigil held for a
friend who had just been murdered. He and his cohorts, who were also
armed, surrounded Stevens, and fired guns at him from different directions.
After running around the street corner, Samad made the decision to return to
92nd Avenue and fire additional shots at the back of a man who by that time

17
quite obviously posed no threat to anyone. Then he gathered his friends,
collected guns from the ground and fled, leaving a man to die on the street.
These facts establish a reasonable foundation for an inference that Samad
acted with premeditation and deliberation. (Anderson, supra, 70 Cal.2d at
p. 25.)
Samad argues he carried a loaded gun for general safety reasons not
because he planned to commit murder. The jury was not required to believe
Samad intended to use the weapon only defensively. The act of bringing a
loaded firearm to a crime scene supports a reasonable inference that the
defendant prepared for a violent encounter. (People v. Salazar (2016) 63
Cal.4th 214, 245; Lee, supra, 51 Cal.4th at p. 636.) Samad also argues that
he had no motive to commit murder because there is no evidence Stevens
even knew who T.J. was. But motive was not required, and evidence that
Samad and his friends went to the vigil looking for information about T.J.
could supply a possible motive for the killing, whether or not Stevens was
actually involved in T.J.’s murder.
Most importantly, we disagree with Samad that the manner of the
killing was not indicative of premeditation in that the entire incident
occurred in 10 seconds during a “sudden gunfight,” instead of Stevens being
killed in an execution-style murder. “ ‘The process of premeditation and
deliberation does not require any extended period of time. “The true test is
not the duration of time as much as it is the extent of the reflection.” ’ ”
(Koontz, supra, 27 Cal.4th at p. 1080.) Here, the record shows that several of
Samad’s actions were calculated and methodical. His characterization of the
incident as a “sudden gunfight” ignores the fact that all the shooters were on
the same side of an altercation that they instigated. And even if the outbreak
of gunfire initially caught Samad by surprise, Samad ignores the actions he

18
took after Stevens dropped his gun and attempted to crawl to safety.
Samad’s conduct in returning from around the corner to shoot a fallen
Stevens in the back supports a finding that by this point the killing was the
“result of preexisting thought and reflection rather than an unconsidered
rash impulse.” (Lee, supra, 51 Cal.4th at p. 637.)
II. Cross-Examination of Wilson
Wilson’s primary claim is that the judgment against him must be
reversed because inadmissible evidence was disclosed to the jury. We divide
this claim into two parts. First, Wilson argues that the prosecutor committed
prejudicial misconduct while cross-examining Wilson about Kermit Tanner,
the defendant whose case was severed prior to trial. Second, Wilson argues
that after inadmissible evidence about Tanner was disclosed, the trial court
erroneously denied the defendants’ joint motion for a mistrial. Samad joins
the second part of Wilson’s argument.
A. Additional Background
1. Wilson’s Testimony
While the prosecutor was cross-examining Wilson about his account of
the shooting incident, Wilson confirmed his prior testimony that he yelled the
word “Gun” when he saw a gun in Stevens’s hand. After Wilson
acknowledged that his face could be seen in the video footage of Stevens
getting out of the car, the prosecutor asked whether “we should be able to see
your lips moving,” but the trial court sustained an objection that this
question called for speculation. Then, the following exchange occurred:
[Prosecutor]: Q. Isn’t it true, Mr. Wilson, that you never
yelled, “Gun”?

A. I actually did. I probably didn’t yell it loud, but I actually
said, “Gun.”

19
 Q. Isn’t it true that you already knew he had a gun?

A. I did not.

Q. Isn’t it true that Kermit Tanner had already told you all,
“Dude has a hammer”?

A. He never said that.

Q. Isn’t that why you were afraid for Kermit Tanner to
actually come and testify?

A. No.

After this colloquy, the prosecutor produced a compact disc and
transcript, which were marked for identification as People’s 48 and 48-A. As
copies of the transcript were distributed to the jury, Wilson’s counsel
requested permission to approach the bench, which led to an off-the-record
discussion in chambers. When the court went back on the record, it excused
the jury in order to discuss defense objections to the exhibits proffered by the
prosecutor.
2. Exhibits 48 and 48-A
Exhibit 48 contained recordings of five telephone conversations that
Wilson had with people while he was in jail, and exhibit 48-A was a
transcript of the phone calls. The prosecutor wanted to question Wilson
about each call and play parts of them for the jury. The court considered
each call separately, hearing arguments for and against admissibility.
The first call was a November 2018 conversation between Wilson and a
woman named Yolanda. Wilson said that “Aoderi” wanted Yolanda to know
that the reason Aoderi was “upset” with Wilson was because Wilson had
nodded his head in agreement when he was asked to identify Aoderi. The
prosecutor argued this call was relevant because it identified Aoderi Samad

20
as a participant in the shooting incident. Wilson and Samad objected that
the call was hearsay, speculative as to Samad’s state of mind, and that its
probative value was outweighed by undue prejudice because Samad had
already been identified by other evidence. Samad also moved for a mistrial,
arguing his right to remain silent was violated because jurors had been given
a transcript of this call.
The court excluded this first call, finding it was cumulative of other
evidence establishing the identity of participants in the crime, and that using
the call to infer something about Samad’s state of mind was problematic.
Regarding Samad’s request for a mistrial, the court made a record of the fact
that it did not make any visual observation of the jury to see whether they
did or did not look at the transcript and that the chambers conference with
counsel had lasted for “two minutes maybe.” The court stated that it would
ask the jury if they saw anything in the transcripts and then give an
appropriate admonition.
The second and third calls were conversations Wilson had in October
2017, each with a male who shared his last name. During both calls, the men
talked about the fact that Kermit Tanner had separated his case and
expressed concern about what Tanner was doing. The prosecutor argued
these calls were relevant to prove Wilson was afraid Tanner might testify
against him. Wilson objected that admitting evidence of this collateral
matter would be unduly time consuming. It would require Wilson to explain
that he had an initial concern about what Tanner would say, but that concern
was dispelled after he saw Tanner’s statement to the police, which was
favorable to him because Tanner told the police that there was never a plan
to attack Stevens. The prosecutor responded that other parts of Tanner’s
statement could harm Wilson because Tanner had told the police that,

21
although he was armed, he did not shoot at Stevens. And Tanner also told
police that he informed his friends that the “Dude” (Stevens) had a
“hammer.”
The court stated that Tanner’s statement sounded relevant and opined
that he could be called as a witness. At that point, Terrell objected that the
prosecutor had already asked a question of Wilson that assumed Tanner’s
statement about the dude having a hammer was true. The question was
improper, Terrell argued, because Tanner had made a deal that did not
require him to testify and the defendants had been led to believe that Tanner
was not going to testify. Without Tanner’s testimony, the prosecutor’s
question was hearsay and highly prejudicial, Terrell’s counsel argued.
McFadden’s counsel concurred, adding that his client’s right to confrontation
had been violated since Tanner could not be compelled to testify.
The prosecutor acknowledged she did not plan to call Tanner as a
witness but argued that Wilson’s fear of Tanner’s testimony was relevant
because Tanner was the only defendant who did not shoot his gun. The court
rejected this theory, finding the probative value of the second and third phone
calls was outweighed by other concerns, and instructing the prosecutor to
stay away from “[t]he idea of [Tanner] testifying or not testifying.” Terrell
objected that the damage had already been done because the prosecutor’s
questions on the subject were improper. The other defendants agreed and
made a joint request for a mistrial. The court stated that an admonition
would cure any potential harm but agreed to interview the jurors about the
matter.
The court found the final two phone calls contained admissible
evidence, and evidentiary rulings regarding these two calls are not
challenged on appeal.

22
 3. Jury Interviews
After the court ruled on the admissibility of the phone calls, it
interviewed each juror about whether he or she had reviewed the prosecutor’s
transcript while the court and counsel had their in-chambers conference.
Four of the twelve seated jurors reported that they did not acquire or
retain any substantive information from their cursory review of the
transcript. Five jurors remembered something about the first phone call
between Wilson and Yolanda, but did not recall reading anything beyond that
call. Three jurors recalled that the transcript contained information about
Kermit Tanner.
Juror 2 reviewed four pages of the transcript, and recalled that this
portion covered two phone calls by Wilson. In the first call, Wilson said he
knew why Aoderi was mad at him and in the second call there was a
reference to the fact that Tanner split from the defense. Juror 2 stated that
he or she could disregard this information if instructed to do so.
Juror 6 skimmed through the document and read about half of it. A
reference to Kermit Tanner caught this juror’s attention. Juror 6 could not
remember specifics but thought the people were talking about whether or not
Tanner had shared information with the authorities.
Juror 11 skimmed a couple of pages of the document and recalled it was
a general conversation about how the caller was “holding up.” When
questioned further, Juror 11 recalled that there was a comment about Tanner
not being a part of the case and a rumor that he was separating from the
trial. Juror 11 did not draw any conclusion from this remark other than that
it confirmed what he or she saw in the video, which was that people other
than the four defendants were involved in the incident.

23
 4. Denial of Joint Defense Motion for a Mistrial
After thorough discussion of the matter with the parties and counsel,
the trial court denied the defendants’ joint motion for a mistrial. The court
divided the matter into two distinct issues. The first pertained to the
questions that the prosecutor asked Wilson about Tanner. The court found
that the prosecutor had a good faith basis for her questions and any prejudice
associated with them could be cured by an admonition. The second issue
pertained to distribution of the transcripts, which contained some evidence
that was deemed inadmissible. The court found again that any prejudice
could be cured by an admonition. Accordingly, when trial reconvened, the
court gave the jury the following admonitions:
We’re ready to proceed with continued cross-examination.
But before we do that, there are a couple things I need to say to
you, ladies and gentlemen, with respect to last week’s
proceedings. I’m going to admonish you now to disregard a few
things.

And I think if you recall, I may have mentioned when I
read some of the preliminary instructions—which was a while
ago, you may not remember specifically—but there are occasions
during most trials where, as the judge, I will instruct the jury to
disregard certain things. So what I’m going to do now is
admonish you with regard to two questions that were asked the
last time we were in session, the very last session that we had.

There were two questions asked when Mr. Wilson was
testifying by the prosecutor. One had to do with whether or not
he was asked a question or a comment was made to him to the
effect that “someone had a hammer” or “dude had a hammer.”
And there was a second question that was asked about whether
there was a concern on Mr. Wilson’s part about Mr. Tanner
testifying.

I’m going to—I am now, I’m going to admonish you to
completely disregard those questions and answers. Not consider

24
 them for any purpose. They are not evidence. They will not be in
evidence. And they’re not to enter into your deliberations or be
considered for any purpose at all. Okay?

The second thing, it has to do with the transcripts that you
were handed temporarily. When we were last in session, as you
might recall, I had a little colloquy with each one of you regarding
the transcripts.

The transcripts will not be coming into evidence. To the
extent that any of you may have looked at or glanced at the
transcripts and read the front page, one or two of you may have
looked at a page or two beyond that, that’s—those are to be
completely disregarded as well. They are not going to be part of
the record. They are not going to be in evidence. And they’re not
to be considered by you for any purpose whatsoever. Okay?

So when you deliberate and the evidence that you have
before you, which will be continued to be presented today, the
questions that I referred to are stricken and are not to be
considered for any purpose and the same is true for the
transcripts. Okay?

B. The Prosecutor Did Not Commit Prejudicial Misconduct
Wilson contends that the prosecutor committed misconduct by asking
him the two questions about Tanner that were stricken from the record.
Ordinarily, “ ‘ “[t]o preserve a claim of prosecutorial misconduct for appeal, a
defendant must make a timely and specific objection and ask the trial court
to admonish the jury to disregard the improper argument.” ’ ” (People v.
Charles (2015) 61 Cal.4th 308, 327.) In this case, defendants argued the
prosecutors’ questions were improper and so prejudicial they warranted a
mistrial. These objections were sufficient to preserve an appellate claim of
prosecutor misconduct.
“A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make

25
the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.” (People v.
Morales (2001) 25 Cal.4th 34, 44; accord People v. Wilson (2005) 36 Cal.4th
309, 337.) Wilson contends the prosecutor’s questions about Tanner were
misconduct under both standards. We begin by considering Wilson’s state
law claim.
Generally, the prosecutor has wide latitude to challenge a defendant’s
direct testimony during cross-examination. (People v. Chatman (2006) 38
Cal.4th 344, 382.) “ ‘When a defendant voluntarily testifies, the district
attorney may fully amplify his testimony by inquiring into the facts and
circumstances surrounding his assertions, or by introducing evidence through
cross-examination which explains or refutes his statements or the inferences
which may necessarily be drawn from them.’ ” (Ibid.)
Despite this broad scope of permissible cross-examination, a prosecutor
commits misconduct under state law if she asks “ ‘questions of a witness that
suggest facts harmful to a defendant, absent a good faith belief that such
facts exist’ ” and can be proved. (People v. Bolden (2002) 29 Cal.4th 515, 562
(Bolden); accord, People v. Mooc (2001) 26 Cal.4th 1216, 1233 (Mooc); People
v. Visciotti (1992) 2 Cal.4th 1, 52 [“a prosecutor may not examine a witness
solely to imply or insinuate the truth of the facts about which questions are
posed”].)
Wilson contends the prosecutor violated this rule because she did not
have a good faith basis for asking him whether Tanner had told him that
Stevens had a gun. The trial court disagreed, expressly finding a good faith
basis, and rejecting the argument that there was no reason to believe Wilson

26
would answer the question affirmatively. The trial court noted Tanner’s
statement to the police, which had been produced to all defendants prior to
trial, that Tanner told Wilson that Stevens had a gun. The fact that Wilson
testified he did not know about the gun before Stevens stepped out of the car
did not preclude the prosecutor from probing the matter, to see if Wilson
would change his testimony if his memory was refreshed by a pointed
question. As the trial court remarked, “Wilson’s testimony was interesting”
in that he was “in some respects, very straightforward and candid about
having lied to the police and to other people about things.” Wilson had also
admitted other potentially harmful facts, and agreeing with the prosecutor’s
question here would not “have torpedoed [his] case,” the trial court thought.
Although the trial court might have reached a different conclusion as to
whether the prosecutor had a sufficient basis to ask the question, we find
substantial evidence for the factual finding of a good faith basis here, and
therefore decline to disturb that finding on appeal.
Wilson contends that even if the prosecutor acted in good faith, she
committed misconduct by making a “reference to facts not in evidence.” This
argument misconstrues a rule that precludes counsel from referring to facts
not in evidence during closing argument. (People v. Hill (1998) 17 Cal.4th
800, 827–828.) In that context, a prosecutor who refers to facts not in
evidence becomes her “own witness—offering unsworn testimony not subject
to cross-examination.” (Ibid.) Here, the prosecutor was not making an
argument to the jury, but cross-examining a witness. Because the prosecutor
had a good-faith basis for asking Wilson about what Tanner had said, she did
not commit misconduct under state law.
Wilson contends the prosecutor committed misconduct under federal
law because her questions violated Wilson’s constitutional right to

27
confrontation, thereby depriving him of a fair trial.1 Wilson bases this
argument on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), which
holds that, absent narrow exceptions, the “admission of ‘testimonial’
statements of a witness who was not subject to cross-examination at trial
violates a defendant’s Sixth Amendment right of confrontation, unless the
witness is unavailable and the defendant had a prior opportunity for cross-
examination.” (Rangel, supra, 62 Cal.4th at p. 1214, citing Crawford, at
pp. 59–60, 68.)
According to Wilson, the prosecutor violated Crawford because (1)
Tanner’s police statement was testimonial hearsay, and (2) the prosecutor
referred to Tanner’s statement by inquiring whether Tanner told Wilson that
Stevens had a gun. The prosecutor did not actually refer to Tanner’s police
statement but only asked whether Tanner told Wilson about the gun.
Nevertheless, Wilson insists his confrontation right was violated because the
police statement was the source from which the prosecutor learned that
Tanner told Wilson that Stevens had a gun.
Wilson’s argument conflates two distinct issues. The first question is
whether Wilson’s confrontation right was violated by the erroneous
admission of testimonial hearsay. It was not. Assuming Tanner’s police
statement was testimonial hearsay, that statement was not admitted into
evidence. Further, the prosecutor did not ask Wilson about Tanner’s police
statement; she asked whether Tanner made a statement to Wilson about
Stevens having a gun, and Wilson answered that Tanner did not. These
questions neither introduced nor elicited testimonial hearsay, and even if

1The People contend Wilson forfeited this claim by failing to raise it
below. The issue was preserved by McFadden who participated in the joint
motion for a mistrial.

28
they had, the exchange was stricken from the record, thus mooting the
matter altogether.
The second issue raised by Wilson’s argument is whether the
prosecutor committed misconduct by asking a question about a fact she knew
she could not prove. Wilson claims the prosecutor knew she could not prove
that Tanner told Wilson that Stevens had a gun because Tanner’s police
statement was inadmissible testimonial hearsay. This claim rests on the
false premise that the only way to establish this fact at trial was by
admitting evidence of Tanner’s police statement. The trial court accepted
representations by counsel that Tanner could not be compelled to testify and
was not going to be called as a witness, but this did not preclude Wilson or
any of the other defendants from testifying that Tanner had indeed made this
statement.
Even if the prosecutor’s actions could be construed as misconduct,
Wilson’s claim would fail for lack of prejudice, even under the heightened
standard applicable to constitutional error. (Chapman v. California (1967)
386 U.S. 18, 24.) Wilson’s theory of prejudice is that the prosecutor’s
disclosure that Tanner told Wilson that Stevens had a gun impaired Wilson’s
credibility and gave the jury reason to reject Wilson’s testimony that he was
taken by surprise when Stevens got out of the car with a gun in his hand.
But the prosecutor did not “disclose” the statement to the jury; she simply
asked Wilson whether Tanner had said these words to him, and Wilson
denied that he had. Further, the brief inquiry was stricken from the record
and the jury was admonished not to consider it for any purpose. The jury
was also instructed with CALCRIM No. 222, that statements and questions
by counsel are not evidence. Absent any indication to the contrary, “[w]e

29
assume the jury followed this instruction.” (Mooc, supra, 26 Cal.4th at
p. 1234.)
C. The Motion for Mistrial Was Properly Denied
Wilson, joined by Samad, argues that the denial of the defendants’
motion for a mistrial is reversible error because the prosecutor’s questions
about Tanner and the distribution of the transcript of the jail calls caused
irreparable harm.
The trial court’s denial of a mistrial is reviewed for abuse of discretion.
(People v. Ayala (2000) 23 Cal.4th 225, 283.) A motion for mistrial “should be
granted only when a party’s chances of receiving a fair trial have been
irreparably damaged.” (Ibid.) “Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.” (People v.
Wallace (2008) 44 Cal.4th 1032, 1068.) The trial court’s ruling will not be
disturbed unless it exercised its discretion in an “ ‘arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’ ”
(People v. Dunn (2012) 205 Cal.App.4th 1086, 1094.)
Here, the record shows that the trial court acted within its discretion
by denying defendants’ motion for a mistrial. The court made a mid-trial
ruling to exclude evidence after two questions about the matter had already
been asked and answered. The court took steps to cure potential harm
resulting from the jury’s exposure to this excluded evidence by striking the
questions and answers and admonishing the jury that the matter was not
evidence, would not be evidence, and was not to enter into the jury’s
deliberations or be considered by them “for any purpose.” The evidentiary
ruling also affected evidence of Wilson’s jail calls because two of the calls
pertained to Tanner. Because jurors had a few minutes to review a

30
transcript of the calls before the exhibit was retrieved from them, the court
conducted interviews and made a record of the fact that no juror was
inflamed by his or her review of the transcript. Nevertheless, the court
admonished the jury not to consider any information they may have gleaned
from the transcript for any purpose. These circumstances support the trial
court’s finding that the defendants’ right to a fair trial had not been
irreparably harmed.
Wilson contends there was irreparable harm because the prosecutor
committed prejudicial misconduct and violated Wilson’s constitutional right
to confrontation. We have already rejected these claims. Wilson also
contends the jury took the transcript as proof that Wilson was afraid Tanner
would testify that he told Wilson that Stevens had a “hammer.” We disagree.
Only three jurors recalled that the transcript even contained a reference to
Tanner. These jurors reported that Wilson’s phone conversation had
something to do with the fact that Tanner had severed his case. Juror 6 was
the only juror who surmised that Tanner may have shared information with
the police. No juror said anything to indicate that they drew a connection
between Wilson’s phone calls and the prosecutor’s question about whether
Tanner told Wilson that Stevens had a gun.
In his appellate brief, Wilson contends that “Juror No. 6 recalled that
on cross-examination, the prosecutor had ‘talk[ed] about an alleged
conversation between Anthony Wilson and Kermit Tanner and whether or
not Kermit said something about Mr. Stevens in the car having a gun.’ ” But
Juror 6 did not himself draw a connection between the transcript and the
prosecutor’s questions about Tanner; Juror 6 recalled only that Tanner’s
name was mentioned and “perhaps the issue or the notion that he might have
shared some information.” After Juror 6 shared this recollection, Wilson’s

31
trial counsel asked whether Juror 6 recalled the last subject the prosecutor
addressed with Wilson before the transcript was distributed “as it related to
. . . Kermit Tanner.” Juror 6 acknowledged recalling the prosecutor’s
questions but, even then, did not express the view that these questions were
related to the jail calls. And it is a simple misreading of the record to assert,
as Wilson does, that Juror No. 6 “recalled reading in the transcripts” about
Tanner having said he saw a gun, as Juror No. 6 said no such thing and the
transcripts do not mention any such statement.
Finally, Wilson contends that the trial court’s admonition could not
adequately repair the harm resulting from the disclosure of Tanner’s
statement for two related reasons. First, he contends that the prosecutor’s
closing argument relied on Tanner’s statement that he told Wilson about
Stevens’s gun (even though the prosecutor did not refer to that statement)
because the prosecutor encouraged the jury to find that the defendants
planned to confront Stevens before they approached his car. This argument
assumes erroneously that there was no other admissible evidence supportive
of the prosecutor’s theory that the attack on Stevens was planned. Wilson
also argues that learning about Tanner’s statement likely caused the jury to
reject Wilson’s testimony that he acted in self-defense. The crux of Wilson’s
defense was that he shot at Stevens after Stevens pointed his own gun at
Terrell. This defense did not hinge on whether Wilson knew Stevens had a
gun before he approached the car. It did hinge on testimony that Stevens
raised his arm to shoulder level and pointed his gun at Terrell, testimony the
jury could have rejected as inconsistent with the video evidence. Thus,
considering the entire record reinforces our conclusion that the trial court did
not abuse its discretion by finding that the questions the prosecutor asked

32
about Tanner and the transcript the jurors saw briefly did not cause
irreparable harm.
III. Jury Instruction Issues
All three appellants seek reversal of the judgment due to prejudicial
jury instruction errors. “A claim of instructional error is reviewed de novo.
[Citation.] An appellate court reviews the wording of a jury instruction de
novo and assesses whether the instruction accurately states the law.
[Citation.] In reviewing a claim of instructional error, the court must
consider whether there is a reasonable likelihood that the trial court’s
instructions caused the jury to misapply the law in violation of the
Constitution. [Citations.] The challenged instruction is viewed ‘in the
context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner.’ ” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
A. The Concurrent Causation Instruction
Terrell contends the trial court gave an irrelevant instruction regarding
concurrent causes of death, which misled the jury to believe Terrell could be
convicted of murder based solely on his participation in the shooting incident.
We reject this claim because the instruction correctly states the relevant law,
and it is not reasonably likely the jury was misled by it.
1. Causation Principles in Homicide Cases
“The principles of causation apply to crimes as well as torts. [Citation.]
‘Just as in tort law, the defendant’s act must be the legally responsible cause
(“proximate cause”) of the injury, death or other harm which constitutes the
crime.’ ” (People v. Schmies (1996) 44 Cal.App.4th 38, 46–47, italics omitted.)
“In homicide cases, a ‘cause of the death of [the decedent] is an act or
omission that sets in motion a chain of events that produces as a direct,

33
natural and probable consequence of the act or omission the death of [the
decedent] and without which the death would not occur.’ ” (People v.
Cervantes (2001) 26 Cal.4th 860, 866.)
CALCRIM No. 240 is the standard jury instruction addressing the
concept of proximate cause. Although CALCRIM No. 240 does not discuss
concurrent cause principles, California courts have long recognized that
“there may be multiple proximate causes of a homicide.” (People v. Sanchez
(2001) 26 Cal.4th 834, 846 (Sanchez).) “ ‘ “When the conduct of two or more
persons contributes concurrently as the proximate cause of the death, the
conduct of each is a proximate cause of the death if that conduct was also a
substantial factor contributing to the result. A cause is concurrent if it was
operative at the time of the death and acted with another cause to produce
the death.” ’ ” (Id. at p. 847.)
In Sanchez, supra, 26 Cal.4th 834, a jury convicted two defendants of
first degree murder based on evidence they engaged in a gun battle that
killed an innocent bystander, although it could not be determined which
defendant fired the single fatal bullet. (Id. at p. 839.) One defendant
appealed his murder conviction and the Court of Appeal reversed, finding
that the fact that the victim was hit and killed by a single bullet “eliminated
concurrent causation as a theory of liability for the murder.” (Ibid.) The
Supreme Court granted review and reversed the judgment of the Court of
Appeal, finding that the intermediate court had erred in concluding that
“principles of concurrent causation cannot be invoked in a single-fatal-bullet
case.” (Id. at p. 845.) The Sanchez court upheld the defendant’s murder
conviction because there was “sufficient evidence” that both defendants acted
with malice under the doctrine of transferred intent and that “the unlawful

34
conduct of each was a substantial concurrent, and hence proximate, cause of
[the victim’s] death.” (Id. at pp. 851–852.)
2. The Challenged Instruction
In the present case, the trial court granted the prosecutor’s request for
a concurrent cause instruction, stating that it would mirror language in the
proximate cause instruction that was used in Sanchez. Defendants objected
that the instruction would prevent them from disputing the prosecution
theory that they orchestrated a joint attack. The court disagreed, but it
granted Terrell’s request to include supplemental language addressing the
possibility of an intervening superseding cause of harm. Ultimately, the
court used the following special instruction to instruct the jury regarding the
causation issues in this case:
An act causes death if the death is the direct, natural and
probable consequence of the act and the death would not have
happened without the act. A natural and probable consequence
is one that a reasonable person would know is likely to happen if
nothing unusual intervenes.

In deciding whether a consequence is natural and probable,
consider all the circumstances established by the evidence. There
may be more than one cause of death. An act causes death only if
it is a substantial factor in causing the death.

A substantial factor is more than a trivial or remote factor:
however, it does not need to be the only factor that causes the
death. If you have a reasonable doubt about whether the
defendant’s act caused the death, you must find him not guilty.

There may be more than one proximate cause of the death. When
the conduct of two or more persons contributes concurrently as
the proximate cause of the death, the conduct of each is a
proximate cause of the death if that conduct was also a
substantial factor contributing to the result.

35
 In a homicide case in which the conduct of an intermediary is the
actual cause of death, a defendant’s liability will depend on
whether it can be demonstrated that his own conduct proximately
caused the victim’s death. That is, whether it can be shown that
the intermediary’s conduct was merely a dependent, intervening
cause of death and not an independent, superseding cause.

If proximate causation is established, the defendant’s or a
defendant’s level of culpability for the homicide in turn will vary
in accordance with his criminal intent. However, if an
intermediary’s conduct was an independent, superseding cause,
the defendant is relieved of criminal liability. In order, though,
to be independent the intervening cause must be unforeseeable,
an extraordinary and abnormal occurrence which rises to the
level of an exonerating, superseding cause.

On the other hand, a dependent, intervening cause will not
relieve the defendant or a defendant of criminal liability. A
defendant may be criminally liable for a result directly caused by
his act, even if there is another contributing cause. If an
intervening cause is a normal and reasonably foreseeable result
of a defendant’s original act, the intervening act is dependent and
not a superseding cause and will not relieve the defendant of
liability.

The consequence need not have been a strong possibility. A
possible consequence which might reasonably have been
contemplated is enough. The precise consequence need not have
been foreseen. It is enough that a defendant should have
foreseen the possibility of some harm of the kind which might
result from the act.

The first three paragraphs of this instruction track the language of
CALCRIM No. 240. The fourth paragraph tracks the Sanchez instruction on
concurrent causation. (Sanchez, supra, 26 Cal.4th at pp. 843, 845.) The
remaining paragraphs address the concept of superseding causation, which
was discussed in concurring opinions in the Sanchez case.

36
 3. Analysis
Terrell argues that the concurrent causation instruction permitted the
jury to convict him of murder based solely on the fact that he participated in
the shooting incident, regardless of whether he acted with criminal intent.
This was error, Terrell argues, because a recent amendment to section 188,
subdivision (a)(3), provides that malice “shall not be imputed to a person
based solely on his or her participation in a crime.”
Terrell’s interpretation of the challenged instruction is not reasonable.
This instruction addressed general principles of law relevant to the issue of
causation, not intent. The jury received separate instructions regarding the
intent elements of the charged offenses, and Terrell does not contend those
separate instructions were erroneous or inadequate in any way.
Terrell argues that this instruction was complicated and confusing, and
the jury was probably misled by it because the words “natural and probable
consequence” were used to explain the concept of proximate cause. According
to Terrell, this part of the instruction was “a back door” to the natural and
probable consequences doctrine, which cannot be used to convict a defendant
of murder based on an aider and abettor theory of vicarious liability. (§ 188,
subd. (a)(3); see e.g. People v. Lopez (2019) 38 Cal.App.5th 1087, 1103, review
granted Nov. 13, 2019, S258175.)
Terrell overlooks that the natural and probable consequence language
in the challenged instruction is part of the legal definition of a proximate
cause of death in a homicide case. That language comes from CALCRIM
No. 240. It does not come from the part of the instruction addressing
concurrent causes of death. Regardless, we are not persuaded that the use of
this term misled the jury to believe that Terrell could be convicted of murder
solely because he participated in the shooting. The instruction states that

37
“[a]n act causes death only if it is a substantial factor in causing the death,”
and it tells the jury that it must find the defendant not guilty if there is a
“reasonable doubt about whether the defendant’s act caused the death.” The
instruction then goes on to explain proximate causation and the possibility of
concurrent causation before stating: “If proximate causation is established,
the defendant’s or a defendant’s level of culpability for the homicide in turn
will vary in accordance with his criminal intent.” This language makes clear
that the instruction applies to the specific issue of causation, and only to that
issue. It is not at all likely that the jury misconstrued this instruction as an
invitation to absolve the prosecution of the requirement of proving criminal
intent by imputing a finding of malice from Terrell’s mere participation in the
shooting incident.
Terrell argues that the jury likely interpreted this instruction as
authorizing them to “impute” malice because the jury was also instructed
with CALCRIM No. 520, which permitted them to find implied malice if
Terrell knowingly committed an act, “the natural and probable consequences”
of which were “dangerous to human life.” Terrell confuses the now-
discredited theory of imputed malice with the doctrine of implied malice,
which remains a valid theory by which to prove the intent element of a
murder charge. To prove implied malice the prosecution must establish, not
only that a defendant committed an act that was dangerous to human life,
but also that the defendant knew that his own act was dangerous to human
life and that he deliberately acted with conscious disregard for human life.
(CALCRIM No. 520.) Terrell does not dispute that the jury received correct
instruction regarding the law of implied malice.
By separate argument, Terrell intimates that concurrent causation was
not a valid theory of murder liability because the facts of this case are

38
materially different from the facts of Sanchez. Sanchez holds that concurrent
causation principles, which have long applied to homicide cases, can be
invoked to hold more than one defendant guilty of murder even if the victim
was killed by a single bullet. (Sanchez, supra, 26 Cal.4th at pp. 845 & 851–
852.) In the present case, the victim was killed by multiple bullets—the
cause of death listed in the autopsy report being “multiple gunshot
wounds”—so to the extent this case differs from Sanchez, concurrent
causation principles are all the more relevant here.
Finally, Terrell questions the “viability of Sanchez” on the ground that
the Supreme Court recently granted review in People v. Carney (Dec. 10,
2019, No. C077558) __ Cal.App.5th __ [2019 Cal.App.Unpub. Lexis 8199]
(Carney), review granted Mar. 25, 2020, S260063, a case in which multiple
shooters were convicted of murdering a single victim. Terrell neglects to
mention that the only issue under review in Carney is whether the
concurrent causation theory can be applied to defendants who did not fire the
single bullet that killed a homicide victim. This issue is not raised by the
facts presented here, where Stevens was killed by multiple gunshots and the
evidence does not conclusively establish which defendant fired which bullets.
In any event, we are bound by Sanchez unless and until the California
Supreme Court overrules it. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 456 (Auto Equity Sales).)
B. Objections to CALCRIM Instructions
Appellants all contend that the trial court erred by using CALCRIM
No. 571 to instruct the jury regarding imperfect self-defense. Pursuant to
that instruction, the jury was told: “A defendant acted in imperfect self-
defense or imperfect defense of another if: [¶] 1. The defendant actually
believed that he or another was in imminent danger of being killed or

39
suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed
that the immediate use of deadly force was necessary to defend against the
danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable.”
Appellants contend this instruction was error because it did not tell the
jury that a defendant acts in imperfect self-defense under a third scenario:
when he reasonably believes that the immediate use of deadly force is
necessary but the amount of force that he uses to defend himself or another
person is “excessive.” The distinction appellants draw between the concepts
of deadly force and excessive force is misleading if not illusory; appellants
describe no scenario in which a homicide defendant’s use of deadly force could
be deemed both reasonable and excessive. If the defendant’s genuine belief in
the immediate need to use deadly force was reasonable, the use of deadly
force was not excessive. If the defendant’s genuine belief in the immediate
need to use deadly force was not reasonable, the use of deadly force was
excessive. The standard CALCRIM instructions regarding self-defense and
imperfect self-defense that were used in this case, CACRIM No. 505 and
No. 571, accurately and adequately conveyed the pertinent principles. If the
defendants thought this matter required special clarification, it was
incumbent on them to request supplemental instruction, which they did not
do. (People v. Landry (2016) 2 Cal.5th 52, 99–100; Bolden, supra, 29 Cal.4th
at p. 557.)
Next, appellants challenge the use of CALCRIM No. 570 to instruct the
jury regarding the concept of provocation. This instruction, which addresses
the heat of passion theory of voluntary manslaughter, states in part: “The
defendant killed someone because of a sudden quarrel or in the heat of
passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the
provocation, the defendant acted rashly and under the influence of intense

40
emotion that obscured his reasoning or judgment; and [¶] 3. The provocation
would have caused a person of average disposition to act rashly and without
due deliberation, that is, from passion rather than from judgment.”
Appellants contend this instruction is erroneous because it fails to tell
the jury that the victim need not have actually engaged in provocative action,
so long as the defendant reasonably attributed the provocative conduct to the
victim. (Citing People v. Lee (1999) 20 Cal.4th 47, 59 [“The provocation which
incites the defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim”].)
We reject this claim of error because when CALCRIM No. 570 is read
as a whole, it authorizes the jury to find provocation if the defendant
reasonably believed the victim engaged in provocative conduct. The
instruction does not contain any language stating or suggesting that the
defendant must have been provoked by the victim’s conduct, as the
requirement for provocation is set forth in the passive voice: “The defendant
was provoked.” (CALCRIM No. 570.) Further, appellants overlook a
subsequent portion of the instruction that focuses the jury on the question
whether conduct that the defendant characterizes as provocation would have
provoked a reasonable person in the defendant’s situation. The instruction
states: “In deciding whether the provocation was sufficient, consider whether
a person of average disposition, in the same situation and knowing the same
facts, would have reacted from passion rather than from judgment.” (Ibid.)
Here, too, the focus is on the defendant’s perception, and not on the source of
the provocation.
In another challenge, Samad and Wilson contend the trial court erred
by instructing the jury with CALCRIM No. 3472, which states: “A person

41
does not have the right to self-defense if he or she provokes a fight or quarrel
with the intent to create an excuse to use force.” Appellants do not argue
that the instruction is inaccurate but contend instead that it is not supported
by the trial evidence.
First, both Samad and Wilson forfeited this claim by failing to object to
the instruction in the trial court. (People v. Frandsen (2011) 196 Cal.App.4th
266, 278.) Second, the allegation that an instruction correct in law was not
supported by substantial evidence is insufficient to establish reversible error
because “the jury is presumed to disregard an instruction if the jury finds the
evidence does not support its application.” (Ibid.) Third, this claim fails on
its merits. “A party is entitled to a requested instruction if it is supported by
substantial evidence. [Citation.] Evidence is ‘[s]ubstantial’ for this purpose if
it is ‘sufficient to “deserve consideration by the jury,” that is, evidence that a
reasonable jury could find persuasive.’ ” (People v. Ross (2007) 155
Cal.App.4th 1033, 1049–1050.) Here, the jury could reasonably have
concluded that appellants provoked an altercation with Stevens by
surrounding him and forcing him to get out of his car, and that at least one of
them took this provocative action with the intent to create an excuse to shoot
him. Wilson and Terrell denied any such intention, but evidence of their
actions on the day in question was sufficiently ambiguous to support
instruction on the matter.
C. Failure to Give a Mistake of Fact Instruction
Terrell contends the judgment against him must be reversed because
the jury was not instructed that mistake of fact was a defense to the charge
that he murdered Stevens.

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 1. Additional Background and Terrell’s Contentions
Mistake of fact is a common law and statutory defense to a criminal
charge. (People v. Lucero (1988) 203 Cal.App.3d 1011, 1016; § 26.) “Penal
Code section 26 lists classes of persons deemed incapable of committing
crimes, including ‘[p]ersons who committed the act . . . charged under an
ignorance or mistake of fact, which disproves any criminal intent.’ ” (People
v. Givan (2015) 233 Cal.App.4th 335, 343.) “A ‘mistake of fact’ defense
negates an element of a charged crime because it disproves criminal intent.
[Citations.] However, a mistake of fact jury instruction is not appropriate
where the defendant’s mistaken belief does not negate an element of the
crime.” (Id. at p. 345; see CALCRIM No. 3406.) Put another way, the
mistake of fact defense “applies only in limited circumstances, specifically
when the defendant holds a mistaken belief in a fact or set of circumstances
which, if existent or true, would render the defendant’s otherwise criminal
conduct lawful.” (People v. Lawson (2013) 215 Cal.App.4th 108, 111
(Lawson).)
Here, Terrell’s defense was that he acted in self-defense. In closing
argument, Terrell’s counsel argued the evidence showed that Stevens
overreacted when Terrell opened the car door and provoked a violent
altercation with Terrell. Counsel argued that Stevens was the aggressor in
the dispute because he spoke to Terrell in an angry and hostile manner,
brandished his gun with its long clip, and began to raise his gun as he took
an aggressive step toward Terrell. These facts alone were sufficient to justify
Terrell’s actions, counsel argued. But there was more, because then Terrell
heard a gunshot and had a “human reaction.” Assuming the shot was fired
by Stevens, Terrell flinched and then protected himself from imminent

43
danger by firing his gun until the threat was gone. In light of this evidence,
counsel argued that Terrell was not guilty of any crime.
On appeal, Terrell contends that the most likely reason his self-defense
claim failed was because the jury was not instructed on mistake of fact.
Terrell concedes he did not request a mistake of fact jury instruction, but
argues the instruction was required because it was a crucial component of his
defense and it was supported by substantial evidence. In presenting this
claim, Terrell offers two theories of error: (1) the trial court violated a sua
sponte duty to instruct on mistake of fact, and (2) Terrell was denied the
effective assistance of counsel because his trial counsel failed to request a
mistake of fact instruction.
2. The Trial Court’s Duty
The trial court did not have a duty to instruct sua sponte on mistake of
fact, even if there was substantial evidence to support this defense. (Lawson,
supra, 215 Cal.App.4th at p. 117, applying People v. Anderson (2011) 51
Cal.4th 989, 992.) Anderson was a robbery case, in which the defendant
argued his use of force—running over the owner of a car he was stealing—
was an accident. (Id. at p. 993.) The case held that trial courts do not have a
sua sponte duty to instruct on the defense of accident, provided that the jury
is properly instructed on the mental state element of the charged crime. (Id.
at pp. 997–998.) The court reasoned that because an accident defense serves
only to negate the intent element of the offense charged, the trial court’s
instructional duty is limited to providing an appropriate pinpoint instruction
upon request. (Ibid.) Anderson’s rationale “applies with equal force to the
defense of mistake of fact, or any other defense that operates only to negate
the mental state element of the crime.” (Lawson, at p. 117; see People v.
Hussain (2014) 231 Cal.App.4th 261, 268–269.)

44
 Terrell asks this court not to follow Anderson, arguing that Anderson
relied on an erroneous “definition of pinpoint instructions” and drew
“artificial distinctions between ‘real’ defenses and defenses that ‘merely’
negate criminal intent.” We read Anderson as resting on the principle that a
“trial court’s sua sponte instructional duties do not extend to defenses that
serve only to negate an element of the crime.” (People v. Covarrubias (2016)
1 Cal.5th 838, 874 & fn. 14.) In Covarrubias, the Supreme Court affirmed
this principle and expressly approved cases holding that there is no sua
sponte duty to instruct on mistake of fact. (Ibid.) We decline Terrell’s
invitation to part with this binding precedent. (Auto Equity Sales, supra, 57
Cal.2d 450.)
3. Effective Assistance of Counsel
To overcome a presumption that he received constitutionally adequate
representation, Terrell would have to prove that (1) his trial counsel’s
representation was deficient in that it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) he suffered
prejudice flowing from counsel’s deficient performance such that the outcome
of the proceeding would have been different if not for his counsel’s error.
(People v. Lucas (1995) 12 Cal.4th 415, 436.)
Terrell contends his trial counsel performed deficiently because the
omission of a mistake of fact instruction precluded the jury from finding that
Terrell acted in self-defense. We disagree. If the jury found that Terrell
believed Stevens fired the first shot, the instructions provided two avenues
for returning a verdict other than murder. First, if Terrell’s belief in the need
to defend himself was reasonable, the jury could have found him not guilty
pursuant to CALCRIM No. 505, the self-defense jury instruction, which told
the jury that Terrell was not guilty if he “reasonably believed that he or

45
another was in imminent danger of being killed or suffering great bodily
injury.” Second, if the jury found that Terrell’s belief in the need to defend
himself was genuine but not reasonable, he could have been convicted of
voluntary manslaughter pursuant to CALCRIM No. 571, the imperfect self-
defense instruction.
Terrell argues that a mistake of fact instruction was crucial to his
defense because without it the jury was never told to consider the facts from
Terrell’s perspective. CALCRIM No. 505 states: “When deciding whether the
defendant’s beliefs were reasonable, consider all the circumstances as they
were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have
believed. If the defendant[’]s beliefs were reasonable, the danger does not
need to have actually existed.” Thus, the jury was instructed to consider the
circumstances from the perspective of the defendant.
If the jury had accepted Terrell’s argument for imperfect self-defense—
that he reasonably but mistakenly thought Stevens had shot at him at close
range—we can see how a pinpoint mistake of fact instruction could have been
beneficial to Terrell. It would have highlighted the fact that Terrell’s alleged
mistake about who fired the first shot could not only establish a basis for
imperfect self-defense, but could also justify a complete defense verdict.
However, focusing the jury on the question of who fired what shot could have
been dangerous. There is no evidence that Stevens ever fired his gun; he was
neither the first person to shoot, nor did he react to gunfire by shooting his
weapon at anyone that day. Furthermore, the video evidence suggests that
Stevens did not even raise his gun, let alone aim it at Terrell. Thus,
requesting a pinpoint mistake of fact instruction risked focusing the jury’s
attention on evidence that was damaging to Terrell’s defense. Under these

46
circumstances, there may have been a tactical reason not to request the
instruction, which precludes Terrell from proving ineffective assistance of
counsel. (People v. Centeno (2014) 60 Cal.4th 659, 675.)
Finally, Terrell’s theory of prejudice is unavailing. He argues that his
self-defense claim was compelling precisely because of his mistaken belief
that Stevens had fired at him, and yet “this was the one fact the jury could
not consider as it weighed whether to acquit him.” First, defense counsel
argued explicitly that Stevens was the aggressor even before a shot was fired.
Counsel told the jury that when Stevens got out of the car, he was “hostile
and upset,” got “close and confrontational” with Terrell, and had a firearm
with an extended clip in his hand, which he was “displaying,” “moving,” and
“lifting” in Terrell’s direction when he was only “one step away from him.”
Thus, although Terrell also relied on evidence that he mistakenly believed
Stevens shot at him, that was not the sole basis for his defense.
Further, the instructions on self-defense and imperfect self-defense did
permit the jury to consider whether Terrell mistakenly believed that Stevens
fired the first shot. If the jury concluded Terrell actually, but unreasonably,
believed Stevens was firing at him they could have convicted Terrell of
voluntary manslaughter rather than second degree murder. Because the jury
rejected voluntary manslaughter for Terrell, it is not reasonably likely that a
mistake of fact instruction would have affected the outcome of these
proceedings.
IV. Sentencing Issues
A. The Firearm Use Enhancement
Terrell contends the trial court erroneously denied his motion to strike
the 25-year-to-life sentence enhancement imposed on him for personally and

47
intentionally discharging a firearm and proximately causing death.
(§ 12022.53, subd. (d).)
The trial court had discretion to strike this firearm use enhancement in
the interest of justice pursuant to section 1385. (§ 12022.53, subd. (h).)
Contending the court abused its discretion, Terrell claims erroneously that
the court failed to “explicitly” consider his request to strike the enhancement.
At the sentence hearing, the court stated: “To the extent that [Terrell]
specifically made a request that I exercise my discretion with respect to the
use enhancement pursuant to section 12022.53[, subdivision ](h), I’m not
inclined to exercise my discretion in that regard with respect to Mr. Terrell
given the nature of the offense and prior convictions. So I will deny that.”
We also reject Terrell’s contention that the trial court abused its
discretion by denying Terrell an “individualized sentencing determination.”
Before the court announced Terrell’s sentence, it stated that it read his
probation report, a letter from the District Attorney about him, and all
material submitted by Terrell’s trial counsel, including letters, photos, and
restitution information. Because Terrell was not eligible for probation, the
court did not address criteria affecting probation, but it delineated the
relevant aggravating circumstances. Factors in aggravation that pertained
“specifically” to Terrell included that he had “engaged in violent conduct,
indicating a danger to society,” he had “numerous prior convictions of
increasing seriousness, and his performance, prior performance on juvenile
and adult probation was not satisfactory.” Then, after imposing Terrell’s
sentence, the court denied Terrell’s motion to strike the firearm
enhancement, expressly declining to exercise its discretion to strike the
enhancement because of the nature of Terrell’s offense and his prior
convictions.

48
 Terrell argues the trial court abused its discretion because it failed to
consider whether a lesser enhancement under section 12022.53 was more
suitable to Terrell’s crime. Terrell bases this argument on People v. Morrison
(2019) 34 Cal.App.5th 217, 223. Morrison held that when a trial court is
considering whether to impose an enhancement under section 12022.53,
subdivision (d), it has discretion to impose an uncharged lesser firearm
enhancement under section 12022.53, subdivision (b) or (c). (Morrison, at
pp. 222–223; but see People v. Tirado (2019) 38 Cal.App.5th 637, 642–645,
review granted Nov. 13, 2019, S257658.) Because the record did not reflect
that the trial court understood that it could impose a lesser enhancement, the
Morrison court remanded the case for resentencing.
Morrison does not apply here. Terrell was charged with lesser
enhancements under section 12022.53, which the jury found to be true.
Furthermore, the record shows that the trial court understood it had the
discretion to impose a lesser enhancement. It elected not to do so by denying
Terrell’s motion to strike the subdivision (d) enhancement and imposing
stayed sentences for the lesser enhancements.
B. Restitution Fines and Court Fees
Terrell contends the trial court erred by imposing a $10,000 restitution
fine pursuant to section 1202.4. He argues that imposing this fine without
considering his ability to pay constituted a due process violation under the
reasoning of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Samad
makes the identical claim, incorporating by reference Terrell’s argument.
The restitution fine was imposed under section 1202.4, subdivision (b),
which states: “In every case where a person is convicted of a crime, the court
shall impose a separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so and states those

49
reasons on the record.” When the person has been convicted of a felony, the
fine must be set at an amount between $300 and $10,000 that is
“commensurate with the seriousness of the offense.” (Ibid.) The “defendant’s
inability to pay shall not be considered a compelling and extraordinary
reason not to impose a restitution fine,” but the court should consider
inability to pay before setting a fine above the statutory minimum. (§ 1202.4,
subd. (c).) The defendant bears the burden of overcoming a presumption that
he has the ability to pay a restitution fine imposed under this statute.
(§ 1202.4, subd. (d); People v. DeFrance (2008) 167 Cal.App.4th 486, 505
(DeFrance).)
In the present case, when the court ordered Samad to pay a $10,000
restitution fine, he did not object on any ground, thereby forfeiting his claim
that the fine was imposed in error. (People v. Aguilar (2015) 60 Cal.4th 862,
864; People v. Trujillo (2015) 60 Cal.4th 850, 856; People v. McCullough
(2013) 56 Cal.4th 589, 596–597; People v. Nelson (2011) 51 Cal.4th 198, 227;
People v. Avila (2009) 46 Cal.4th 680, 729.) Thus, we limit our discussion to
Terrell.
At the sentencing hearing, Terrell’s trial counsel objected to the
imposition of any fines or fees, stating: “[M]y client is indigent, doesn’t have
any money, cannot afford any type of fine. And I would object to the
imposition of any type of fine as a violation of due process.” The trial court
acknowledged the objection before it imposed Terrell’s sentence, stating that
it had considered the probation report, letters submitted by Terrell, and “the
restitution information.” Then, the court announced Terrell’s sentence,
which included a $10,000 restitution fine. When it imposed this fine, the
court made a “record” of its response to defense counsel’s objection, stating:

50
“[T]here are cases that indicate that in a case of this nature with a sentence
of this nature, that earnings from prison wages can be applied to such a fine.”
On appeal, Terrell contends the trial court erred by imposing the
$10,000 fine without finding that Terrell had the present ability to pay it.
We disagree that such a finding is required. The record summarized above
affirmatively shows that the trial court did consider Terrell’s ability to pay as
required by the statute and then concluded the statutory maximum fine was
proper due to the seriousness of the crime and the availability of prison
wages.
Terrell contends his restitution fine is unconstitutional under “the due
process analysis in Dueñas.” The Dueñas defendant was convicted of a
misdemeanor for driving on a suspended license and sentenced to probation.
(Dueñas, supra, 30 Cal.App.5th at p. 1160.) At her sentencing hearing she
objected that she did not have the ability to pay statutory fees and fines,
requested a hearing on the matter and produced undisputed evidence
establishing her inability to pay. (Id. at p. 1162.) Consequently, the court
struck some fees, but imposed others that it concluded were mandatory. (Id.
at pp. 1162–1163.) Under that unique cluster of circumstances, the appellate
court found that imposition of the statutory fines and fees violated due
process. (Id. at p. 1168–1172.) Regarding the restitution fine specifically, the
Dueñas court found that the fine triggered constitutional concerns because
the statute required imposition of a minimum fine irrespective of the
defendant’s ability to pay it. (Id. at p. 1172.)
First, we note that multiple courts have criticized the due process
analysis employed in Dueñas. (See People v. Cowan (2020) 47 Cal.App.5th
32, 42, review granted June 17, 2020, S261952 (Cowan); People v. Kopp
(2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.) But even

51
if Dueñas is legally sound, it does not apply to the facts presented here, where
Terrell was not required to pay a mandatory restitution fine as a condition of
securing probation. As this court has previously explained, the Dueñas
defendant presented compelling evidence that she was an indigent
probationer whose inability to pay court assessments resulted in ongoing,
unintended punitive consequences. (People v. Johnson (2019) 35 Cal.App.5th
134, 138–139.) These consequences of nonpayment implicated due process
principles because they constituted additional punishment due solely to the
fact that the defendant was indigent. (Dueñas, supra, 30 Cal.App.5th at
p. 1168.) Terrell’s factual situation is markedly different: Terrell was
convicted of murder; received a lengthy prison sentence; did not produce any
evidence regarding his financial circumstances at his sentencing hearing; and
was ordered to pay a statutory maximum restitution fine. Terrell does not
articulate how imposition of this fine will have an unforeseen punitive
consequence.
Moreover, since Dueñas was decided, this Division has expressed the
view that constitutional challenges to fines and fees based on an inability to
pay should be evaluated under the Eighth Amendment and article I, section
17 of the California Constitution. (Cowan, supra, 47 Cal.App.5th at p. 42.)
Under the Eighth Amendment, four factors are relevant to a constitutional
excessive fines analysis: “ ‘(1) the defendant’s culpability; (2) the relationship
between the harm and the penalty; (3) the penalties imposed in similar
statutes; and (4) the defendant’s ability to pay.’ ” (Id. at p. 47.) In the
present case, Terrell purports to rely on the Eighth Amendment in his
Appellant’s Opening Brief, but he does not present any argument as to how a
proper consideration of all four relevant factors would compel a finding that
the $10,000 restitution fine is excessive. Thus, Terrell falls short of

52
establishing that the fine is unconstitutional. (See People v. Miralrio (2008)
167 Cal.App.4th 448, 452, fn. 4 [appellate court need not address
undeveloped claims or ones inadequately briefed]; In re S.C. (2006) 138
Cal.App.4th 396, 408 [judgment is presumed correct on appeal; to
demonstrate error, appellant must present meaningful legal analysis
supported by citations to authority]; see also U.S. v. Cheeseman (3rd Cir.
2010) 600 F.3d 270, 283 [defendant bears the burden of establishing a fine is
unconstitutionally excessive]; U.S. v. Viloski (2nd Cir. 2016) 814 F.3d 104,
109 [same].)
In his Reply Brief, Terrell disputes the “assumption” that he will be
able to pay his restitution fine from prison wages. Although Dueñas speaks
of present ability to pay, we follow authority holding that the evaluation of
ability to pay must include future ability to pay. (Cowan, supra, 47
Cal.App.5th at p. 49.) When considering a defendant’s ability to pay a
restitution fine, the court is not limited to consideration of a discrete time
period and is not precluded from considering prison wages. (People v.
Douglas (1995) 39 Cal.App.4th 1385, 1396–1397; People v. Hennessey (1995)
37 Cal.App.4th 1830, 1837; People v. Gentry (1994) 28 Cal.App.4th 1374,
1376–1378; People v. Frye (1994) 21 Cal.App.4th 1483, 1487.)
Finally, Terrell contends that his trial counsel’s “assertions about his
finances” were sufficient to establish that Terrell lacks the ability to pay a
$10,000 restitution fine. We disagree; counsel preserved the objection, but
his argument was not evidence. Terrell had the burden of proof on this issue.
(§ 1202.4, subd. (d); DeFrance, supra, 167 Cal.App.4th at p. 505.) Indeed, this
would be true even if the trial court had imposed a statutory minimum fine.
(Cowan, supra, 47 Cal.App.5th at p. 49.) In any event, as we have explained,

53
inability to pay is only one of several relevant factors when evaluating a
claim that a fine is constitutionally excessive.
DISPOSITION
The judgments and sentences are affirmed.

TUCHER, J.

WE CONCUR:

STREETER, Acting P. J.
BROWN, J.

People v. Wilson/Samad/Terrell (A157926/A157930/A157931)

54