People v. Weathers CA3

Filed 5/10/21 P. v. Weathers CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----

THE PEOPLE, C079704

Plaintiff and Respondent, (Super. Ct. No. CRF143141)

v.

DAVEON TARIQ WEATHERS,

Defendant and Appellant.

Defendant robbed a cabdriver at gunpoint. A jury found defendant guilty of first
degree robbery (Pen. Code, §§ 211, 212.5, subd. (a)),1 and found true a personal use of a
firearm enhancement (§ 12022.53, subd. (b)). The trial court sentenced defendant to an
aggregate term of 14 years imprisonment.

1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.

1
 On appeal, defendant asserts that: (1) the trial court erred in admitting the
testimony of his former girlfriend concerning prior uncharged acts involving his
possession of a firearm -- including an incident in which he discharged the firearm in a
Motel 6 room -- admitted to prove the gun defendant used during the robbery was real;
(2) the trial court erred in admitting evidence concerning an uncharged robbery of a
taxicab driver in Sacramento that took place approximately 45 days after the charged
robbery and was assertedly committed by defendant; and (3) cumulative error warrants
reversal. In supplemental briefing, defendant asserts (4) that, following the enactment of
Senate Bill No. 620, the matter must be remanded for the trial court to consider whether
to exercise its discretion to strike the section 12022.53, subdivision (b), firearm
enhancement.
We agree that the matter must be remanded for the trial court to consider whether
to exercise its discretion to strike the firearm enhancement. Otherwise, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
Trial Evidence
The victim worked as a cabdriver and, on April 18, 2014, at approximately 5:00
a.m., he was dispatched to an address on Willow Avenue in West Sacramento. When he
arrived, he called the phone number of the client because there was no one at the
designated location. The victim spoke with the individual, and eventually defendant
approached the taxicab, got in, and sat in the right rear seat. Defendant directed the
victim to take him to Safeway. The victim did not know the location, so he followed
defendant’s directions.
Shortly thereafter, they arrived at the intersection of Jefferson Boulevard and
Devon Avenue and defendant told the victim to stop the car. The victim told defendant
the fare was $10. Defendant gave the victim $3, and the victim assumed defendant was
looking for more cash in his pockets. After one or two minutes, defendant said, “ ‘Give
me everything.’ ” When defendant repeated his command, the victim looked back at

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defendant and saw that he was pointing a gun at him. The victim described the gun as
possibly black and either a revolver or a pistol.2 The victim then heard defendant cock
the gun. The victim at trial demonstrated the way defendant cocked the gun by holding
his left hand over his right hand, and moving his left hand back and then forward.
Defendant then demanded money again. The victim gave defendant his wallet which
contained approximately $300. Defendant repeated, “ ‘Give me everything,’ ” so the
victim gave defendant his phone and a Bluetooth device. Defendant exited the vehicle.
Defendant told the victim, “ ‘Now go from here.’ ” The victim, who was parked
part way in a driveway, put his car in reverse and then looked toward defendant to see
where he was going. When defendant saw that the victim was looking at him, defendant
yelled, “ ‘Go away from here otherwise I’ll shoot you.’ ”
The victim went straight home to call the police. He gave the police the telephone
number of the person he had been dispatched to pick up, (510) 325-4743.
The victim later identified defendant as the perpetrator of the robbery in a photo
lineup, and again at trial. He testified there was “no doubt” defendant was the person
who robbed him.
Detective Eric Palmer investigated the robbery. He identified the cell phone
carrier for the phone number used to call for the victim’s cab. He then obtained a search
warrant for the call logs, billing information, identifying information, and other items
associated with that cell phone. Eventually, Palmer received subscriber information from
the carrier. The carrier identified R.M. in West Sacramento as the person financially
responsible for the account. Palmer then searched various police databases, attempting to
identify individuals associated with R.M. who matched the victim’s description of the
perpetrator. Ultimately, Palmer identified defendant as someone both associated with

2 We discuss the victim’s testimony concerning the description of the gun, post.

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R.M. and who matched the description. Palmer prepared a photo lineup including
defendant’s photograph. When Palmer showed the victim the photo lineup, the victim
identified defendant with certainty within seconds.
On July 3, 2014, Palmer and others executed a search warrant at an apartment
associated with defendant. Law enforcement found a number of documents associated
with defendant, and seized a cell phone.
According to Detective Chris Bernacchi of the Sacramento Police Department, in
an interview with Palmer, defendant admitted to robbing a taxi in West Sacramento on
April 18, 2014.3 Detective Matt Luiz of the Sacramento Police Department interviewed

3 Palmer testified, but was not asked about this admission. But shortly before
concluding the direct examination of Bernacchi, the prosecutor asked him about a second
interview Palmer had with defendant:

“Q. . . . Now, after you got done with your interview with [defendant], was there
a time that you observed [defendant] interviewed by anyone else after you?

“A. Just briefly Detective Palmer.

“Q. Were you -- the same kind of question I asked you earlier, were you in a
place you could see and hear in the second interview with Detective Palmer?

“A. I saw it, but I was also updating my sergeant on the phone as to what was
going on in our case.

“Q. And in that second interview, do you -- from what you can personally see
and observe, do you know in the second interview if [defendant] admitted to Detective
Palmer that he was the individual who robbed a taxicab in West Sacramento on April
18th of 2014?

“A. Yes.”

The prosecutor did not mention the admission in his initial closing argument. In
his rebuttal closing, discussing defendant’s credibility, the prosecutor stated: “Let’s talk
about his statement that he gave to Detective Palmer. The first interview he had with
Detective Palmer based on what Detective Bernacchi saw. He denied it was him. Then

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defendant on the same day. Defendant told Luiz that he always carried a gun with him
for protection, but he did not describe it. Defendant also gave Luiz his mobile phone
number; it was the same number used to call the victim to pick up defendant, (510) 325-
4743.4
Verdict and Sentencing
The jury found defendant guilty of robbery in the first degree (§§ 211, 212.5,
subd. (a)), and found true the firearm enhancement allegation (§ 12022.53, subd. (b)).
The trial court sentenced defendant to an aggregate term of 14 years
imprisonment, calculated as follows: the midterm of four years on count 1, plus a 10-
year consecutive term for the personal use of a firearm enhancement.
DISCUSSION
I. Evidence of Defendant’s Possession of a Real Firearm
A. Testimony of Defendant’s Girlfriend Concerning Defendant’s Gun
1. Additional Background and Defendant’s Contentions
Prior to the commencement of trial, defense counsel noted that the prosecutor
intended to call defendant’s former girlfriend, A.R., to testify about a prior occasion
when defendant possessed a firearm. Defense counsel’s original focus on A.R.’s
proposed testimony related to impeaching her credibility. He stated that, if A.R. testified,
he would want to impeach her with questions concerning a dismissed Yolo County case
which involved prostitution. Defense counsel stated: “[W]hat I suggest, so we don’t

he comes back after lying during that entire interview and comes back and admits that it
was him.”
4 As we discuss post, defendant contends that the trial court abused its discretion in
admitting, over his Evidence Code section 1101 and 352 objections, the testimony of
Luiz and another witness “about the Motel 6 shooting.” Defendant does not contend
Luiz’s testimony concerning defendant’s statements that he always carried a gun for
protection, or Luiz’s testimony concerning defendant’s cell phone number, was
improperly admitted.

5
even get into that issue so both sides would be treated fairly as far as keeping that
evidence out, is to exclude her testimony altogether. . . . [S]he’s not a witness to any
robbery. . . She would only testify that on a previous occasion she saw [defendant] with a
firearm. [¶] And I think on one occasion that firearm was discharged according to her
testimony in a motel room. But I think she should be excluded because once her cross-
examination begins I don’t know where it’s going to end -- on cross and then redirect. So
that’s my position on” A.R.
The prosecutor stated that defendant had admitted to accidentally discharging a
firearm at a Motel 6. The prosecutor further stated that law enforcement investigated the
motel room and confirmed A.R.’s account of the firearm discharge. As for the
impeachment of A.R., the prosecutor stated that she had no prior convictions and told the
court: “to the extent that [defense counsel] wants to impeach [A.R.] of these prior acts,
the same analysis has to be done which is why the People put a motion in limine in to get
in those several acts.[5] We don’t even know exactly what [defense counsel] is talking
about. I can tell the Court that [A.R.] has no convictions for any types of prostitution.
And I believe that was one of the facts that the Court weighed in allowing certain prior
acts of the defendant. [¶] So here we don’t have a conviction. Certainly, it can still be a
moral turpitude, but it’s a higher standard to get it in. There’s nothing that’s been
confirmed one way or the other as to her. Now, [defense counsel] -- if the Court allows it
in -- wants to open that door then the People will have every intention of running a
semitruck through that door if [defense counsel] opens it. Which is why I don’t think that

5 In the prosecution’s motions in limine, the prosecution sought to introduce defendant’s
arrest “for violation of . . . §§ 286 (c)(2), 266h, and 207 in Yolo County on April 18,
2014” if defendant were to testify. It appears this is what the prosecutor was referring to
in stating that he filed a motion in limine “to get in those several acts.”

6
door should be opened. It wouldn’t be proper even by moral turpitude analysis to allow
this prior conduct in.”
Defense counsel proposed being permitted to ask A.R. on cross-examination
whether she engaged in multiple acts of prostitution the prior year. The prosecutor
countered that the problem with that approach was that A.R. was 16 or 17 years old at the
time, and “was a victim of that pimping case and was doing so at the direction of the
defendant. And that’s what the whole [dismissed] case is about.” The prosecutor
asserted that it was “self-serving” by the defense to be permitted to elicit such admissions
from A.R. without allowing A.R. to testify as to the background that she was acting at the
behest of defendant. Defense counsel responded by asserting that it was a “false choice”
whether or not to “open the door,” and noted that it would be A.R.’s moral turpitude that
would be at issue in the analysis, not defendant’s. The trial court reserved on the issue.
Subsequently, upon rethinking the nature of A.R.’s proposed testimony, defense
counsel requested an Evidence Code section 402 hearing, asserting for the first time that
the evidence of the gun discharge in the Motel 6 room would amount to nothing more
than character evidence. He further asserted that there had “to be a nexus with actual
evidence in this case.”
The prosecutor responded that, to prove the enhancement allegation, it was the
prosecution’s burden to demonstrate defendant used a real gun. The prosecutor noted
that the victim would testify he believed a real gun was used and he heard and saw
defendant cock the gun. According to the prosecution, the connection with A.R. was that
she saw defendant with one gun which he carried with him “at all times of the night.”
She had seen him clean the gun near in time to the robbery. Additionally, A.R. would
testify that a photograph on defendant’s mobile phone of a gun on defendant’s lap was
the gun she always saw him with and the only gun she knew him to carry. Further,
A.R.’s testimony would establish that, between the time of the West Sacramento robbery
and the later Sacramento robbery, a discharge of the gun occurred in a motel in Yolo

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County, which law enforcement would confirm. According to the prosecutor, “[i]t all
leads back to the same gun which [A.R.] having knowledge of that and seeing it several
times close in time to the fact that this was a real gun and only gun that he had.” The
prosecutor asserted that an Evidence Code section 402 hearing was unnecessary because
the defense had A.R.’s statements.
The trial court declined to hold a hearing. The court stated, with regard to the
facts of the dismissed case against A.R., that, if the door was opened, the court would
allow the prosecution to pursue the matter. The trial court warned defense counsel, “in
order to have each side have an opportunity on this -- just understand if you get close to
that, there’s a danger point.”
The prosecution then asserted that the simplest way to deal with the issue would
be a ruling that A.R.’s prior alleged conduct did not amount to moral turpitude. That
way, the defense could not open the door. The defense disagreed, asserting that
prostitution had been deemed a crime of moral turpitude by the courts, and that it was
clear that an arrest or conviction was not required for evidence concerning acts of moral
turpitude to come into evidence. Noting that defendant had not been charged or
convicted on the Sacramento robbery, defense counsel asserted that, if the parties wanted
to be consistent, then the Sacramento robbery should not come in either. The trial court
again reserved on the issue.
The following day, the defense reiterated the position that A.R. should not be
permitted to testify because she would be offering nothing more than bad character
evidence. Defense counsel asserted that defendant’s right to cross-examine outweighed
the prosecution’s interest in presenting character evidence and further asserted that “it’s a
Pandora’s box pursuant to Evidence Code 352 and her testimony is not central to his case
in chief, her testimony should be excluded altogether.”
The trial court concluded that the defense’s interest in cross-examining A.R. on
these matters was substantially outweighed by the potential prejudice based on the

8
evidence that would then come in. The court reasoned that if the prostitution evidence
were to come in, the prosecution would be allowed to establish the circumstances of that
prostitution, in particular defendant’s involvement. That would result in a trial within a
trial and would be time consuming. Additionally, there would be substantial prejudice to
defendant if the prostitution evidence came in. Therefore, the trial court ruled the defense
was not to cross-examine A.R. regarding the prostitution activity when she was a minor.
At trial, A.R. testified that she was 18 years old and that defendant was her former
boyfriend. A.R. knew defendant to have a black nine-millimeter handgun which he had
with him “[m]ost of the time.” Defendant would carry the gun in his waistband
underneath his shirt. A.R. had watched defendant load the gun, with nine bullets in the
removable magazine and one in the chamber. She also observed defendant cleaning the
gun. Among other things, she testified that defendant took the top piece off, which was
the piece that is used to “[cock] it back.” A.R. never saw defendant with any other gun.
He carried that gun on his person, particularly when he was out at night. A.R. also
identified defendant in photographs, exhibits 7 and 13, and testified that defendant had a
gun in the photographs and that she believed it was the same gun she had seen him with
because he “only had one gun to my knowledge. I don’t believe that he would have any
other gun in any other picture.”
A.R. testified that, at some point in 2014, she and defendant were hanging out in
their room at a Motel 6.6 Defendant was “messing around” with his gun when A.R.

6 A.R. was confused as to the date of the Motel 6 incident. At one point, she testified
that it occurred in April 2014. She then testified, twice, that the incident may have
occurred in April or May 2014. She subsequently testified that the incident occurred on
her birthday, and therefore it occurred on June 2, 2014. When asked on recross-
examination whether she could say that the incident did not occur in April 2014, A.R.
testified: “I’m not certain. It was in between months possibly. I mean, I’ve gone
through a lot of traumatic stress and anxiety and etcetera. I’m recalling to the best of my
knowledge . . . .” When asked if she knew whether the incident occurred in April or in

9
heard a very loud noise. A.R. then saw that there was a hole in the bed, and she realized
defendant had fired the gun. They decided to check out of the motel as soon as possible
so that they would not get in trouble. Before leaving, defendant flipped the mattress in an
attempt to conceal the bullet hole.
In his closing argument, the prosecutor posed the question to the jurors: “How do
we know it’s a real gun?” He then answered the question by pointing out various
circumstances, including A.R.’s testimony that defendant usually carried a gun, and that
she witnessed defendant firing the gun in the Motel 6 incident.
Defendant asserts that the trial court prejudicially erred in admitting A.R.’s
testimony concerning his possession and use of a firearm. He argues on appeal this
evidence was inadmissible under Evidence Code sections 1101 and 352, and the
admission of this evidence violated his due process right to a fair trial.
2. Firearm Enhancement Element – Use of a Real Gun
With regard to the firearm enhancement, the word “ ‘firearm’ has the meaning
provided in subdivision (a) of Section 16520.” (§ 12001.) Section 16520, subdivision
(a), in turn, provides, in pertinent part: “ ‘[F]irearm’ means a device, designed to be used
as a weapon, from which is expelled through a barrel, a projectile by the force of an
explosion or other form of combustion.” “Consequently, ‘toy guns obviously do not
qualify as a “firearm,” nor do pellet guns or BB guns because, instead of explosion or
other combustion, they use the force of air pressure, gas pressure, or spring action to
expel a projectile.’ ” (People v. Law (2011) 195 Cal.App.4th 976, 983, quoting People v.
Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).) Thus, to prove the firearm

June, A.R. testified that it was not in June, but then further testified that she was confused
and nervous and asked defense counsel to ask the question again, which he elected not to
do. However, on redirect examination, the prosecutor asked whether she and defendant
had been celebrating a birthday at Motel 6, and she responded that it had been her
birthday, which was on June 2. Thus, it appears that the Motel 6 incident occurred at
most 45 days after the charged robbery, and it may have occurred within the same month.

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enhancement allegation, the prosecution’s burden included proving beyond a reasonable
doubt that defendant used a “firearm” within the meaning of sections 12001 and 16520,
subdivision (a). The trial court instructed the jury with CALCRIM No. 3146, which
incorporates the language of section 16520, subdivision (a).7
3. Relevance and Evidence Code Section 1101, Subdivision (b)
a. Applicable Legal Principles
“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
“ ‘Relevant evidence’ means evidence, . . . having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210, italics added.)
Evidence Code section 1101 provides: “(a) Except as provided in this section and
in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his
or her character . . . is inadmissible when offered to prove his or her conduct on a
specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence
that a person committed a crime, civil wrong, or other act when relevant to prove some
fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence

7 The trial court instructed the jury with CALCRIM No. 3146 in pertinent part as
follows: “If you find the defendant guilty of the crimes charged in Count I, you must
then decide whether the People have proved the additional allegation that the defendant
personally used a firearm during the commission or attempted commission of that crime.
You must decide whether the People have proved this allegation for each crime and
return a separate finding for each crime. [¶] A firearm is any device designed to be used
as a weapon from which a projectile is discharged or expelled through a barrel by the
force of an explosion or other form of combustion. … A firearm does not need to be in
working order if it was designed to shoot and appears capable of shooting. A firearm
does not need to be loaded. Someone personally uses a firearm if he or she intentionally
does any of the following. One, displays the weapon in a menacing manner; two, hits
someone with the weapon; or three, fires the weapon. The People have the burden of
proving such allegation beyond a reasonable doubt. If the People have not met this
burden, you must find that the allegation has not been proved.” (Italics added.)

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of mistake or accident . . . ) other than his or her disposition to commit such an act. [¶]
(c) Nothing in this section affects the admissibility of evidence offered to support or
attack the credibility of a witness.” As this court has previously noted, “[c]ourts subject
other crimes evidence to ‘ “extremely careful analysis” ’ [citation] and review the
admission of such evidence for abuse of discretion.” (People v. Hendrix (2013) 214
Cal.App.4th 216, 238 (Hendrix).)
b. Analysis
Defendant asserts that A.R.’s “testimony about [his] possession and use of
firearms was not relevant to prove that the firearm used during the robbery was real”
because there was no “evidence linking the two weapons.” Defendant maintains that this
evidence therefore amounted to impermissible propensity evidence, the suggestion that
the two weapons were the same was pure speculation, and the probative value of the
evidence was negligible.
Defendant relies on People v. Barnwell (2007) 41 Cal.4th 1038 (Barnwell). In
Barnwell, the trial court admitted evidence in rebuttal tending to show that, a year before
the charged murders, the defendant “possessed another handgun similar to the murder
weapon.” (Id. at p. 1055.) In reciting the evidence presented, our high court stated that
“[t]here was no suggestion that the pistol” which had a stainless steel finish “was the
weapon involved in this case, which had a blue steel finish.” (Id. at p. 1044.) Our high
court stated that, “When the prosecution relies on evidence regarding a specific type of
weapon, it is error to admit evidence that other weapons were found in the defendant’s
possession, for such evidence tends to show not that he committed the crime, but only
that he is the sort of person who carries deadly weapons.” (Id. at p. 1056, italics added.)
Our high court continued: “Because the prosecution did not claim the weapon” that was
the subject of the rebuttal evidence “was the murder weapon, its admission was error.”
(Ibid.)

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 What distinguishes Barnwell from the instant case is that, here, the prosecution did
assert that the firearm about which A.R. testified was the firearm used in the charged
crime and the circumstantial evidence tended to prove that assertion. In seeking to have
A.R.’s testimony admitted, the prosecutor argued that the prosecution bore the burden of
proving that the firearm used in the robbery was a real firearm, and that the connection
with A.R. “is that she sees the defendant with one gun carrying it on him at all times -- at
all times of the night. That she’s seen him clean it close in time to the time that this
action occurred. Also on the defendant’s cellphone that was searched, there was a picture
of him with the firearm in his lap that [A.R.] identified as that being the gun she had
always seen him with and that being the gun she had only known him to carry.” The
prosecutor further asserted that “[i]t all leads back to the same gun which [A.R.] having
knowledge of that and seeing it several times close in time to the fact that this was a real
gun and only gun that he had.”
In his reply brief, defendant asserts that, while it is true that the prosecutor in
Barnwell did not contend that the firearm at issue was the murder weapon, “the question
in our case is fundamentally different. It is whether the weapon was a real firearm or a
replica or pellet gun.” Therefore, defendant asserts that A.R.’s testimony about his
possession of a firearm on other occasions “was nothing more than a backdoor method of
admitting improper propensity testimony.” Defendant also asserts that the prosecution
“did not sufficiently link the two objects.” But defendant’s contention overlooks the fact
that the prosecution could prove that the firearm used in the robbery was a real gun by
proving that defendant—whose identification as the perpetrator is not disputed—had one
gun he habitually carried around the time of the robbery and that gun was, in fact, a real
gun, as established by A.R.’s testimony.
In his initial closing argument, the prosecutor asserted that one way the jury would
know defendant used a real gun in the robbery was because A.R. testified defendant
usually carried a gun, and that she witnessed defendant firing the gun in the Motel 6

13
incident. He also argued that A.R. knew it was a real gun because, among other things, it
was the only gun she ever saw in defendant’s possession. The prosecutor subsequently
argued: “we know that was a real gun because that’s the only gun he’s ever been seen
with is [sic] a Motel 6 incident.” Later, the prosecutor argued that, at the time of the
robbery, defendant was carrying a real gun, “[t]he only gun he had been seen with was at
nighttime, the time of day he typically carried guns and he was carrying it for his
protection and to instill that fear in” the victim.
In his rebuttal closing argument, the prosecutor again asserted: “[W]e know that
the defendant was in possession of a real gun, was in possession of just the one gun that
[A.R.] saw him with at all times, that it was capable of being fired because it was fired
and that’s not an issue.” In connection with a discussion of defendant’s credibility as to
his statement to Bernacchi that the gun he used in the later Sacramento cabdriver robbery
was a CO2 gun, the prosecutor asserted A.R.’s testimony “completely undermines the
defendant’s credibility in telling you that that gun wasn’t real when all of the evidence
that we have points to him only having one gun and that gun being real.” Addressing the
differences between A.R.’s description of the gun she saw in defendant’s possession and
the victim’s description of the gun used in the robbery, the prosecutor emphasized that
the victim only testified that the gun used in the robbery “could have been different,”
(italics added) but he did not say it was different, than the gun in the photograph. The
prosecutor further stated: “At no point was [defendant] ever seen with any other gun than
the real gun that is seen in this picture.”
The People rely on People v. Carpenter (1999) 21 Cal.4th 1016 (Carpenter), and
assert that A.R.’s testimony was relevant to whether the gun defendant used in the
robbery was real. In Carpenter, our high court stated: “Defendant contends the court
made several other erroneous evidentiary rulings. One witness testified that in February
1981, defendant said he carried a gun in his van. The witness never saw the gun.
Another witness testified that in February or March 1981, defendant showed her a gun

14
that ‘looks like’ the murder weapon. The court ruled both items of evidence admissible
over objection. We find no error. Although the witnesses did not establish the gun
necessarily was the murder weapon, it might have been.… [T]his evidence did not
merely show that defendant was a person who possesses guns, but showed he possessed a
gun that might have been the murder weapon after the first and before the last of the
killings. The evidence was thus relevant and admissible as circumstantial evidence that
he committed the charged offenses.” (Id. at p. 1052, italics added.)
Turning to the evidence presented here, when defendant said to the victim “ ‘Give
me everything,’ ” the victim looked back at defendant and saw that defendant was
pointing a gun at him. The victim described the gun as possibly black and either a
revolver or a pistol. The victim then heard defendant cock the gun. The victim
demonstrated the motion by holding his left hand over his right hand, and moving his left
hand back and then forward. On cross-examination, the victim testified that he had told
police that the gun was “black with maybe silver top.” On redirect examination, the
prosecutor showed the victim the photograph of a gun, exhibit 7, and asked if it looked
similar to the gun used in the robbery. The victim responded, “Maybe a little different.”
The victim acknowledged that the gun in the photograph was black and silver. However,
when asked if it looked like the same type of gun that was used in the robbery, the victim
responded: “I think this could be different.” (Italics added.) The victim acknowledged
that he did not have much familiarity with guns.
As noted, A.R. testified she knew defendant to have a black nine-millimeter
handgun which he had with him “[m]ost of the time.” Defendant carried the gun in his
waistband underneath his shirt. A.R. had watched defendant load the gun, with nine
bullets in the magazine and one in the chamber. She also observed defendant cleaning
the gun. Importantly, A.R. never saw defendant with any other gun. A.R. also identified
defendant in the photograph and testified that defendant had a gun in the photograph

15
which she believed to be the same gun she saw him with because she only knew him to
have the one gun.
A.R. further testified that, in 2014, she and defendant were in a room at a Motel 6
when defendant was “messing around” with his gun and A.R. heard a very loud noise.
A.R. then saw that there was a hole in the bed, and she realized that defendant had fired
the gun.
A.R.’s testimony concerning the firearm defendant habitually possessed around
the time of the robbery had some tendency in reason (Evid. Code, § 210) to prove that it
was the firearm defendant used in the robbery and was a real firearm within the meaning
of sections 12001 and 16520, subdivision (a). Like the circumstances in Carpenter, here,
A.R.’s testimony challenged by defendant showed defendant possessed a gun that might
have been the firearm used in the robbery of the victim. (See Carpenter, supra, 21
Cal.4th at p. 1052.) The victim described the gun as “I think, like, black” and later as
“black with maybe silver top”; A.R. testified that the gun was black. The gun in the
photograph was black and silver. Both witnesses describe features of a semiautomatic
handgun. The victim described defendant cocking the gun by moving a part above the
handle back and then forward. A.R. described a nine-millimeter handgun which could
store nine bullets in the removable magazine and one bullet in the chamber, and that the
top piece was used to cock the gun.
Defendant emphasizes the differences in A.R.’s description of the firearm she saw
and the victim’s description of the firearm defendant used in robbing him, but the
descriptions were not that discrepant. While the evidence may not have established with
complete certainty that the gun used in the robbery was the same gun A.R. saw defendant
habitually possess, it might have been. Thus, this evidence was relevant as having some

16
tendency in reason to prove that the firearm used in the robbery of the victim was real.
(See Carpenter, supra, 21 Cal.4th at p. 1052; Evid. Code, §§ 210, 350, 1101, subd. (b).)8
While this appeal was pending, defendant filed a notification of new authority —
People v. Clark (2021) 62 Cal.App.5th 939 (Clark). In Clark, the prosecution was
allowed to offer evidence of Clark’s prior prohibited person in possession of a firearm
juvenile adjudication under Evidence Code section 1101, subdivision (b). In that prior,
pursuant to a vehicle search, police found a Glock model 27 .40-caliber semiautomatic
handgun under the driver’s seat. Clark was in the front passenger seat at the time.
(Clark, at p. 955.) Thus, Clark was in constructive possession of the firearm. There was
no evidence he ever had the firearm in his hand. (Id. at p. 963.) In the charged offenses,
Clark and his confederate robbed three men at gunpoint. However, the gun was never
found, and, at trial, the defendants asserted the prosecution failed to prove beyond a
reasonable doubt that the object used in the robberies was a real gun. (Id. at p.944.) We
concluded that the circumstances underlying Clark’s prior uncharged act were dissimilar
to the circumstances in the charged offenses and the evidence had little tendency to prove
Clark knew he had a firearm in the charged offenses and that he knew that firearm was

8 Defendant asserts: “it is even questionable whether the ‘cocking’ action described by
[the victim] was consistent with [A.R.’s] testimony about a semiautomatic firearm with a
magazine.” In support of this proposition, defendant cites Silveira v. Lockyer (9th Cir.
2002) 312 F.3d 1052, 1057, footnote 1. That footnote states, in relevant part, “only one
bullet is fired when the user of a semi-automatic weapon depresses the trigger, but
another is automatically reloaded into the gun’s chamber. [Citation]. Thus, by squeezing
the trigger repeatedly and rapidly, the user can release many rounds of ammunition in a
brief period of time-certainly many more than the user of a standard, manually-loaded
weapon.” (Silveira, at p. 1057, fn. 1.) The implication of defendant’s reliance on this
footnote would appear to be that one need not cock a semiautomatic weapon in the
manner described by the victim. We need not address the accuracy of this inferential
representation because, as the People observe, the evidence in this case is that A.R. and
the victim both testified that the gun about which they were testifying was cocked by
pulling back the top of the handgun.

17
real. (Clark, at p. 971.) Here, conversely, as stated ante, A.R.’s testimony concerning
the firearm defendant regularly had around the time of the robbery had some tendency in
reason to prove that it was in fact the firearm defendant used in the charged robbery and
that it was indeed a real firearm.
We conclude that the trial court properly determined that A.R.’s testimony was
relevant and not inadmissible under Evidence Code section 1101, subdivision (a).
4. Evidence Code Section 352
a. Applicable Legal Principles
“Although a prior criminal act may be relevant for a noncharacter purpose to
prove some fact other than the defendant’s criminal disposition, the probative value of
that evidence may nevertheless be counterbalanced by a section 352 concern.” (Hendrix,
supra, 214 Cal.App.4th at p. 238.) Evidence Code section 352 provides: “The court in
its discretion may exclude evidence if its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of misleading the
jury.”
“Evidence is not inadmissible under [Evidence Code] section 352 unless the
probative value is ‘substantially’ outweighed by the probability of a ‘substantial danger’
of undue prejudice or other statutory counterweights. Our high court has emphasized the
word ‘substantial’ in [Evidence Code] section 352. [Citations.] [¶] Trial courts enjoy
‘ “broad discretion” ’ in deciding whether the probability of a substantial danger of
prejudice substantially outweighs probative value. [Citations.] A trial court’s exercise of
discretion ‘will not be disturbed except on a showing the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-
168.)

18
 b. Forfeiture
Before proceeding to the merits, we address forfeiture. The People assert
defendant has forfeited his Evidence Code section 352 contention by failing to
specifically raise it before the trial court. According to the People, defendant challenged
the evidence on the ground that he would not be able to effectively impeach A.R., and on
Evidence Code section 1101 grounds, but defendant did not assert Evidence Code section
352 as a separate ground.
Evidence Code section 353 provides, in pertinent part: “A verdict or finding shall
not be set aside, nor shall the judgment or decision based thereon be reversed, by reason
of the erroneous admission of evidence unless: [¶] (a) There appears of record an
objection to or a motion to exclude or to strike the evidence that was timely made and so
stated as to make clear the specific ground of the objection or motion . . . .” (Italics
added.) Thus, a “ ‘ “defendant’s failure to make a timely and specific objection” on the
ground asserted on appeal makes that ground not cognizable.’ ” (People v. Partida
(2005) 37 Cal.4th 428, 433 (Partida).) “ ‘The reason for the requirement is manifest: a
specifically grounded objection to a defined body of evidence serves to prevent error. It
allows the trial judge to consider excluding the evidence or limiting its admission to
avoid possible prejudice. It also allows the proponent of the evidence to lay additional
foundation, modify the offer of proof, or take other steps designed to minimize the
prospect of reversal.’ ” (Id. at p. 434.)
However, “ ‘Evidence Code section 353 does not exalt form over substance.’ ”
(Partida, supra, 37 Cal.4th at p. 434.) “The statute does not require any particular form
of objection. Rather, ‘the objection must be made in such a way as to alert the trial court
to the nature of the anticipated evidence and the basis on which exclusion is sought, and
to afford the People an opportunity to establish its admissibility.’ [Citation.] What is
important is that the objection fairly inform the trial court, as well as the party offering
the evidence, of the specific reason or reasons the objecting party believes the evidence

19
should be excluded, so the party offering the evidence can respond appropriately and the
court can make a fully informed ruling. If the court overrules the objection, the objecting
party may argue on appeal that the evidence should have been excluded for the reason
asserted at trial, but it may not argue on appeal that the court should have excluded the
evidence for a reason different from the one stated at trial. A party cannot argue the court
erred in failing to conduct an analysis it was not asked to conduct.” (Id. at pp. 434-435,
italics added.)
When discussing the admissibility of the subject evidence in the pretrial
conference, defense counsel initially objected because his impeachment of A.R. would be
problematic. Subsequently, defense counsel requested an Evidence Code section 402
hearing, asserting that the evidence would be impermissible character/propensity
evidence. After repeating for the second day in a row that the evidence constituted
improper character evidence, defense counsel asserted that defendant’s right to cross-
examine outweighed the prosecution’s interest in presenting character evidence, and then
stated: “it’s a Pandora’s box pursuant to Evidence Code 352 and her testimony is not
central to his case in chief, her testimony should be excluded altogether.”9
We conclude that defendant sufficiently stated his objection pursuant to Evidence
Code section 352 so as to make the nature of his objection known and for the trial court
to rule on it. In Carpenter, supra, 21 Cal.4th at page 1053, the court concluded that the
defendant sufficiently preserved his Evidence Code section 352 and 1101 objections.
The Carpenter court wrote that the defendant “specifically invoked Evidence Code
section 352 at trial. Although he did not specifically cite Evidence Code section 1101 in

9 In rejecting defendant’s request for an Evidence Code section 402 hearing and his
objection to A.R.’s proposed testimony, the trial court did expressly consider Evidence
Code section 352. However, it did so in reference to the defense’s ability to cross-
examine A.R. on the issues related to alleged prostitution when she was a minor, not the
admissibility of A.R.’s testimony about defendant’s possession of a firearm.

20
objecting to these statements (he did in making similar objections to other items of
evidence), he did object on the ground that the statements merely showed he was a
‘criminal’ and a ‘bad person.’ Under the circumstances, the specific nature of the
objection was sufficiently clear to preserve the issue.” (Carpenter, at p. 1053.)
Here, it is true, as asserted by the People, that defendant did not explicitly argue
that “the evidence was more prejudicial than probative.” However, we conclude that,
under the circumstances here, in the midst of the discussion of this evidence and defense
counsel’s objection to it pursuant to Evidence Code section 1101, counsel’s additional
statement that “it’s a Pandora’s box pursuant to Evidence Code 352 and [A.R.’s]
testimony is not central to his case in chief, her testimony should be excluded altogether,”
was sufficient “ ‘to alert the trial court to . . . the basis on which exclusion is sought, and
to afford the People an opportunity to establish its admissibility’ ” under Evidence Code
section 352. (Partida, supra, 37 Cal.4th at p. 435.)
Further, we note that, because other crimes evidence gives rise to the “serious
danger that the jury will conclude that defendant has a criminal disposition and thus
probably committed the presently charged offense” (People v. Thompson (1988) 45
Cal.3d 86, 109), “to be admissible such evidence ‘must not contravene other policies
limiting admission, such as those contained in Evidence Code section 352.’ ” (People v.
Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt), quoting Thompson, at p. 109.) As we discuss
post, under the authority of Ewoldt, Thompson, and similar cases, an Evidence Code
section 352 analysis is an integral part of the analysis for determining the admissibility of
other crimes evidence. As part of its admissibility analysis, the trial court necessarily
would have considered whether admission of the evidence violated some rule or policy,
i.e., whether the evidence was unduly prejudicial. (People v. Thompson (1980) 27 Cal.3d
303, 314; Hendrix, supra, 214 Cal.App.4th at p. 238.) For this reason too, we conclude
that defendant preserved the Evidence Code section 352 issues for the appeal.

21
 c. Analysis
Defendant asserts that A.R.’s testimony should have been excluded under
Evidence Code section 352 because it had “scant” probative value, and it caused undue
prejudice in that it portrayed defendant “as an aggressive, violent and dangerous person
who regularly carries firearms, enjoys cleaning and ‘playing’ with them and handles them
carelessly such that sometimes they accidentally discharge.” Defendant further asserts
that this evidence was cumulative because “a victim’s testimony generally suffices to
prove an object is a real firearm.” Additionally, defendant asserts that because the
firearm possession about which A.R. testified did not result in a conviction, the jury
could have been moved to punish him regardless of his guilt of the charged offense. And
defendant emphasizes that the trial court did not give a limiting instruction applicable to
this evidence.

We disagree with defendant that A.R.’s testimony had “scant” probative value.
She testified that defendant had a black nine-millimeter handgun which he had with him
“[m]ost of the time.” The shooting in the Motel 6 room occurred, at most, within
approximately 45 days of the robbery. As we have shown, A.R.’s testimony was relevant
to whether defendant used a real gun in the robbery of the victim. The fact that defendant
had a real gun which he had with him most of the time, and which was the only gun A.R.
knew defendant to possess, had more than just some tendency in reason (Evid. Code,
§ 210) to prove, by inference, that the gun he used in robbing the victim was the same
gun A.R. had observed and was a real gun. Indeed, we regard the inference as
compelling; after all, it is undisputed that defendant was the robber and a jury could
reasonably conclude there would be no other reason for defendant to use something other
than the gun he customarily carried to commit the charged robbery.
On the prejudice side of the Evidence Code section 352 balance, we conclude that
A.R.’s testimony was no more inflammatory than the evidence admitted concerning the
charged crime. (See Ewoldt, supra, 7 Cal.4th at p. 405.) To the contrary, the evidence

22
concerning uncharged acts involved the mere possession, and accidental firing, of a
handgun, whereas the charged offense involved the use of a handgun in a robbery,
pointed at the victim in close proximity to make the victim capitulate to defendant’s
demands. That the uncharged act evidence was less inflammatory decreased the potential
for undue prejudice because it was unlikely that the jury disbelieved the victim’s
testimony but nevertheless found defendant guilty on the strength of A.R.’s testimony, or
that the jury’s passions were inflamed by the evidence of the uncharged acts. (Ibid.)
Defendant asserts that the evidence was cumulative because “a victim’s testimony
generally suffices to prove an object is a real firearm.” For this proposition, defendant
relies on Monjaras, supra, 164 Cal.App.4th at page 1437. In Monjaras, another panel of
this court stated: “when . . . a defendant commits a robbery by displaying an object that
looks like a gun, the object’s appearance and the defendant’s conduct and words in using
it may constitute sufficient circumstantial evidence to support a finding that it was a
firearm within the meaning of section 12022.53, subdivision (b). In other words, the
victim’s inability to say conclusively that the gun was real and not a toy does not create a
reasonable doubt, as a matter of law, that the gun was a firearm.” (Monjaras, at p. 1437,
italics added.) Thus, the Monjaras court said a victim’s testimony that a defendant used
what appeared to be a gun could be sufficient evidence to establish that the defendant
used a real gun. The court did not say, however, that where a victim testifies that
someone robbed him with what appeared to be a gun, the prosecution is not permitted to
present other evidence to establish the fact that the gun was real.
“As part of the [Evidence Code] section 352 prejudice analysis, courts consider
whether the trial court gave a limiting instruction. A limiting instruction can ameliorate
[Evidence Code] section 352 prejudice by eliminating the danger the jury could consider

23
the evidence for an improper purpose.” (Hendrix, supra, 214 Cal.App.4th at p. 247.)
The trial court did not give a limiting instruction addressing this evidence.10
Notwithstanding the absence of a limiting instruction, we conclude that the
probative value of A.R.’s testimony was not substantially outweighed by the probability
that its admission would necessitate undue consumption of time or create a substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid.
Code, § 352.) Thus, we conclude that the trial court did not abuse its discretion in
admitting A.R.’s testimony over defendant’s Evidence Code section 352 objection.
B. Additional Evidence of the Firearm Discharge at Motel 6
1. Additional Background and Defendant’s Contentions
The jury heard evidence that, during an interview, Detective Luiz asked defendant
if, while he was staying at a Motel 6 in West Sacramento, he fired a gun inside his motel
room. Defendant initially denied it, but ultimately admitted to doing so. Defendant
acknowledged that he fired a gun into the mattress in the motel room. He said he had
rented the room for June 1 through June 3, but fired the shot on June 2.
Luiz later went with crime scene investigator Ruth Pagano to the Motel 6 room
defendant had occupied. The mattress on one of the beds had a hole in it approximately
one inch in diameter. Pagano continued to investigate and found a hole in the box spring.
Pagano concluded that the holes could have been created by a projectile. Pagano
concluded that a “projectile or bullet was shot through the mattress and the box spring, a
single one.” In his closing argument, the prosecutor discussed Luiz’s and Pagano’s
testimony concerning the investigation at Motel 6.

10 Any contention that the trial court erred by not giving the limiting instruction as to this
evidence is forfeited. Trial courts generally have no sua sponte obligation to instruct on
the limited purpose for which uncharged act evidence can be used. (People v. Lang
(1989) 49 Cal.3d 991, 1020.) It was incumbent upon the defendant to request the
instruction.

24
 Defendant asserts that the trial court erred in admitting the testimony of Luiz and
Pagano about the shooting at the Motel 6. He asserts the trial court erred in admitting this
evidence because it was inadmissible under Evidence Code section 1101, it should have
been excluded pursuant to Evidence Code section 352, and it violated defendant’s right to
due process and a fair trial.
2. Evidence Code Section 1101, Subdivision (b)
Similar to his position on A.R.’s testimony, defendant asserts that this evidence
“was not relevant to prove the object used during the taxicab robbery was a real firearm
due to an absence of evidence linking the two objects.” Defendant further asserts that
this evidence was inadmissible propensity/character evidence. Again, we disagree.
We conclude that Luiz’s and Pagano’s testimony about the Motel 6 investigation
was relevant to prove that, at some point within, at most, 45 days of the charged robbery,
defendant had a real gun—the gun A.R. testified defendant “almost always” carried.
Their testimony corroborated A.R.’s testimony that defendant was handling a gun in the
Motel 6 room and defendant accidentally fired the weapon into the mattress. Further,
Luiz testified that defendant acknowledged during his interview that he fired a gun into
the mattress in the motel room. Similar to the circumstances in Carpenter, here, A.R.’s
testimony as corroborated by Luiz and Pagano showed that, within 45 days of the
robbery, defendant possessed a gun that might have been the firearm used in the robbery
and that the gun was real. (See Carpenter, supra, 21 Cal.4th at p. 1052.) Thus, this
evidence was relevant and admissible as having some tendency in reason to prove that the
firearm used in the robbery of the victim was real. (See ibid.; Evid. Code, §§ 210, 350,
1101, subd. (b).) Further, for the same reasons discussed ante in connection with A.R.’s
testimony, Clark, supra, 62 Cal.App.5th at pp. 951-954 is distinguishable. Here, the
evidence surrounding the Motel 6 investigation was relevant to prove the defendant
regularly had a gun, the gun defendant had was real, and the gun was possibly the firearm

25
used in the robbery. Unlike the relevant and highly probative evidence here, the
probative value of the evidence in Clark was insubstantial. (Id. at p. 953.)
3. Evidence Code Section 352
Having concluded that A.R.’s testimony concerning the Motel 6 shooting was not
unduly prejudicial, by even greater force of reason, we conclude that the testimony of
Luiz and Pagano on their investigation was not unduly prejudicial. Like A.R.’s
testimony, that of Luiz and Pagano was not more inflammatory than the evidence
admitted concerning the charged crime. (Ewoldt, supra, 7 Cal.4th at p. 405.) Nor did
this evidence necessitate undue consumption of time or create a substantial danger of
confusing the issues or misleading the jury.
C. Harmless Error

We further conclude that, even if the trial court abused its discretion in admitting
A.R.’s testimony and/or the Motel 6 investigation testimony, any such error was
harmless.
Defendant asserts that the admission of A.R.’s testimony violated his due process
rights because “there were no permissible inferences to draw from the evidence” other
than that defendant was someone who had a propensity to carry and shoot firearms. He
asserts that he was prejudiced by the admission of this evidence under either Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman) or People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson). He asserts there was evidence he may have used a
pellet or CO2 cartridge gun during the charged robbery. As we discuss, post, this
evidence came from a statement he made to Bernacchi about the uncharged Sacramento
cabdriver robbery. He also emphasizes that the victim’s testimony about the firearm was
equivocal and uncertain, and that no firearm or ammunition was ultimately found.
“Federal constitutional errors subject to harmless error review are reviewed under
Chapman, which requires us to reverse the conviction unless the People can demonstrate
that the error was harmless beyond a reasonable doubt.” (People v. Reese (2017) 2

26
Cal.5th 660, 671, citing People v. Aranda (2012) 55 Cal.4th 342, 267.) However, “[a]
trial court’s determinations under Evidence Code section 352 do not ordinarily implicate
the federal Constitution, and are reviewed under the ‘reasonable probability’ standard of
. . . ” Watson. (People v. Gonzalez (2011) 51 Cal.4th 894, 924.) Additionally, the
erroneous admission of prior misconduct evidence is generally tested for prejudice under
the Watson standard. (People v. Welch (1999) 20 Cal.4th 701, 749-750 [whether or not
the introduction of evidence violated Evidence Code § 1101, it was not prejudicial
because it was not reasonably probable that a result more favorable to the defendant
would have resulted absent admission of this evidence, citing Watson]; People v. Scheer
(1998) 68 Cal.App.4th 1009, 1018-1019 [the erroneous admission of prior misconduct
evidence does not compel reversal unless a result more favorable to the defendant would
have been reasonably probable if such evidence were excluded]; see also People v.
Jandres (2014) 226 Cal.App.4th 340, 357 [Watson standard applicable to assessing
prejudicial effect of erroneous admission of prior acts evidence under Evidence Code
§ 1108 following Evidence Code § 352 balancing]; People v. Mullens (2004) 119
Cal.App.4th 648, 659 [error in the admission or exclusion of prior acts evidence under
Evidence Code § 1108, following an exercise of discretion under Evidence Code § 352, is
tested for prejudice under the Watson harmless error test].) Further, having concluded
that the evidence was properly admitted for purposes other than those prohibited by
Evidence Code section 1101, subdivision (a), it is not the case that “there were no
permissible inferences to draw from the evidence” other than that defendant was someone
who had a propensity to carry and shoot firearms, and thus any error in the admission of
this evidence did not violate defendant’s due process rights or render his trial
fundamentally unfair.
Under Watson, we determine whether it is reasonably probable that, but for the
error, the jury would have reached a result more favorable to defendant. (Watson, supra,
46 Cal.2d at pp. 835-836.) “[T]he Watson test for harmless error ‘focuses not on what a

27
reasonable jury could do, but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an appellate court may consider,
among other things, whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 956.)
Defendant’s arguments concerning prejudice expressly pertain only to the firearm
enhancement allegation, not the robbery conviction. We conclude that it is not
reasonably probable that, had the trial court excluded A.R.’s testimony, defendant would
have achieved a more favorable result. The victim testified that, when defendant told him
to “ ‘[g]ive [him] everything,’ ” the victim turned around and saw that defendant was
pointing a gun at him. The victim described the gun as possibly black and testified that
defendant cocked it. The victim did not testify that the gun was a pellet gun or CO2 gun
or anything other than a real gun. He capitulated to defendant’s demands. The victim’s
testimony was sufficient to establish that the gun used in the robbery was real. (See
Monjaras, supra, 164 Cal.App.4th at p. 1437.) Additionally, as noted, defendant told
Detective Luiz in an interview that he always carried a gun with him.
The only evidence supporting the conclusion that defendant used a pellet gun or
CO2 gun was his own statement in his interview with Bernacchi concerning the
uncharged Sacramento robbery, evidence defendant asserts should not have been
admitted. As set forth more fully in part II. of the Discussion, post, in that interview,
defendant told Bernacchi that he did not use a real gun in the Sacramento robbery, and
stated that he used a “CO2 cartridges pellet gun.” However, during that interview,
defendant also denied committing the West Sacramento robbery, claiming that he was in
Portland, Oregon, at the time. And in the Sacramento cabdriver robbery, the driver said
the robber actually fired his gun. Thus, the jury reasonably could have concluded
defendant was untruthful about the nature of the gun he used in the Sacramento robbery.

28
 On this record, we conclude that it is not reasonably probable defendant would
have achieved a more favorable result as to the firearm enhancement allegation had
A.R.’s testimony and/or the Motel 6 investigation testimony been excluded at trial. (See
Watson, supra, 46 Cal.2d at pp. 835-836.)11
II. Evidence of Uncharged Sacramento Cabdriver Robbery
A. Additional Background
1. The Pretrial Motion
Prior to trial, the prosecutor filed a motion to admit evidence of the uncharged
Sacramento cab driver robbery pursuant to Evidence Code section 1101, subdivision (b).
The prosecutor asserted that this evidence was relevant to prove modus operandi,
identity, motive, and intent.
With regard to modus operandi and identity, the prosecutor asserted that: in both
cases, defendant called a taxi using the same mobile phone; both robberies were
committed during hours of darkness and at times when the pickup locations would be
deserted; in each instance, defendant was alone at the pickup location and was wearing
black clothing; in each instance, defendant climbed into the back seat like a regular fare
and gave the driver a destination; in each case, defendant brandished a handgun and
demanded money from the driver; and in each case, in addition to taking money from the
driver, defendant also took the driver’s mobile phone. Therefore, according to the
prosecutor, the evidence of the Sacramento robbery was admissible to demonstrate
defendant’s modus operandi and to prove defendant’s identity as the perpetrator.
With regard to motive, the prosecutor asserted that defendant committed both
robberies with the same motive, to obtain cash to give to the mothers of his children. The

11 The other crimes evidence related to the Sacramento cabdriver robbery would further
support our determination that defendant sustained no prejudice as a result of the alleged
error concerning A.R.’s testimony.

29
prosecutor asserted: “Showing that Defendant committed a second robbery two months
after the Yolo robbery supports the People’s theory that Defendant’s motive in the Yolo
robbery was to obtain money to pay child support, which in turn helps establish
Defendant’s identity as the perpetrator.”12
As for defendant’s intent in the present case, the prosecutor asserted that the
evidence of the Sacramento robbery was relevant to prove defendant intended to instill
fear in the victim. The prosecutor also asserted that the “similarities between the crimes
support a reasonable inference that Defendant acted with a similar intent in both
situations, and that intent was to cause fear so he could obtain property from the victims.”
The prosecutor further asserted that the evidence of the Sacramento robbery was
not subject to exclusion on Evidence Code 352 grounds, because the prejudicial effect of
the evidence did not substantially outweigh its probative value. He argued the evidence
concerning the Sacramento robbery was not more inflammatory than the evidence
concerning the Yolo robbery. Further, presenting the evidence would take approximately
90 minutes, and therefore would not result in undue consumption of time. Nor would it
result in a confusion of the issues. According to the prosecutor, the evidence was critical
to prove that this is not a case of mistaken identity, and it was necessary to establish
motive and intent “for a cohesive prosecution theory and to establish all elements of the
crime.” The prosecutor asserted that the evidence would not be admitted to demonstrate
criminal predisposition, but instead was necessary to meet the prosecution’s burden of
proof. And the prosecutor noted a limiting instruction could be given to safeguard
against any risk of unfair prejudice to defendant.

12 After confessing to the Sacramento cab driver robbery to Bernacchi, defendant wrote
an apology letter explaining that his desire to provide for his family was the reason why
he committed that crime.

30
 Arguing the motion before the trial court, defense counsel asserted that evidence
of the Sacramento cabdriver robbery would be severely prejudicial and deprive defendant
of a fair trial. Counsel emphasized that, in the Sacramento robbery, the victim failed to
identify defendant. Therefore, according to defense counsel, the prosecution would be
using a weak case to bolster a stronger case.
Asked by the trial court about the similarities and dissimilarities between the two
cases, the prosecutor argued that the only dissimilarity was the fact that, following the
Sacramento robbery, the victim in the Sacramento case was unable to identify defendant.
As for similarities, the prosecutor relied on the facts raised in the written motion. When
further questioned by the court concerning the absence of an identification in the
Sacramento robbery, the prosecutor emphasized that the mobile phone used to summon
the taxicabs in each case led to defendant. Moreover, GPS tracking demonstrated that the
mobile phone was in the vicinities of both robberies.
Defense counsel asserted that the cases were only similar inasmuch as taxicab
robberies are similar in general. He asserted that most taxicab robberies occur at night
when the perpetrator gets in the back seat and points a gun at the driver. He argued that
there was nothing distinctive about the alleged gun used, asserting that it would either be
a semiautomatic or a revolver. Defense counsel asserted that “it wasn’t the same gun.
There’s nothing to support that theory.”
The trial court found the similarities between the two robberies to be “pretty
strong,” “particularly if you throw in the same phone number. Same MO, same calling
the taxi getting the ride -- calling from the same number, of course -- utilizing a weapon,
demand for cellphone.” The trial court found the perpetrator’s demand for each driver’s
cell phone to be a “unique twist.”
As argument continued, the prosecutor asserted that, in defendant’s statements to
law enforcement, he had confessed to both robberies, and defendant wrote an apology

31
letter for the victim of the Sacramento robbery. Defense counsel asserted that he did not
“think that changes the 352 analysis.”
The trial court stated: “the Court believes that information has relevance, is
probative on the issue of his modus operandi, his intent methodology in committing the
robbery. And certainly with the parallel, the circumstances of both crimes are such that
this Court is satisfied that under 1101(b) that that information can come in. [¶] Taking a
look at the possible 352 problem of substantial prejudice, undue-consumption-of-time
issues, the Court believes its probative value is not substantially outweighed by its
prejudicial impact, and I will allow it. [¶] I don’t think the time consumption -- though it
will take a little more time, but if it -- particularly in light of the fact that part of this case
will pertain to statements made regarding the Sacramento case, and that will be coming
in. So that information will come in.”
2. Trial Testimony, Jury Instructions, and Closing Arguments
At trial, A.S., the victim of the Sacramento robbery, testified that, in June 2014, he
was working as a taxicab driver. On June 18, 2014, at approximately 10:00 p.m., A.S.
was given a location for a fare and a contact number of (510) 325-4743. As A.S.
approached the designated location, he called the number. A man entered A.S.’s car and
sat in the seat behind the front passenger seat. The man asked to go to 10th and K. A.S.
indicated that he would make a U-turn so as to avoid driving an extra block, and the
individual said, loudly, “ ‘Don’t move.’ ” He again said, “ ‘Don’t move,” followed by
“I’ll kill you. Don’t move. I’ll kill you.’ ” A.S. felt something on his shoulder. A.S.
looked back and saw a gun. The individual told A.S., “ ‘[G]ive me money. Give me
everything. Give me everything.’ ” A.S. gave the individual money and a cell phone,
and the individual got out of the car. After the individual exited A.S.’s car and began to
walk away, A.S. called police with a second cell phone. A.S. followed the individual for
less than half a block, at which point the individual, showing the gun and pointing it at
A.S., said, “ ‘Move your car. I’ll kill you.’ ” A.S. turned right, and the individual fired

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two shots. As A.S. looked in his rearview mirror, he saw the man get into a car with
someone else in the driver’s seat.
Sacramento Police Detective Chris Bernacchi was assigned to investigate the June
18, 2014, Sacramento robbery. At some point, Detective Palmer contacted Bernacchi
about Palmer’s April 18, 2014, West Sacramento case, and Bernacchi and Palmer agreed
that they were both focused on defendant as the perpetrator. Palmer contacted Bernacchi
again to inform him that they were going to execute a search warrant at defendant’s home
address, and Bernacchi accompanied Palmer to execute the warrant. Following execution
of the search warrant, defendant was taken to the West Sacramento Police Department
station, and there Bernacchi interviewed defendant after Palmer interviewed him.
Bernacchi’s interview with defendant was recorded, and the recording was played for the
jury.
Among other things, in the recorded interview with Bernacchi, the following
exchange occurred:
“Q: . . . Was it even a real gun?
“A: No, it’s a play gun from Wal-Mart.
“Q: You just took the orange tip off?
“A: They don’t even come with orange tips.
“Q: Okay, one of the airsoft ones?
“A: They got CO2 cartridges.”
Later in the conversation, Bernacchi again asked defendant if the gun he used was
real, and defendant responded that it was not. He again claimed it was a “CO2 cartridges
pellet gun.”

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 The trial court gave the jury a limiting instruction using CALCRIM No. 375.13
Defense counsel registered no objection to that instruction and did not request any
modification of the instruction as given.
In his closing argument, the prosecutor discussed the Sacramento robbery, stating
that defendant was not charged with that robbery. He then explained that the jury could
consider the Sacramento robbery for several reasons. The prosecutor asserted the jury
could consider the Sacramento robbery as relevant to prove identity, motive, “similar
intent,” and common scheme or plan “to infer and indicate that this in fact was the same
person because it’s as if it was his criminal signature and how he commits these crimes in
similar matters.” The prosecutor emphasized the similarities between the two robberies,
including: use of the same phone number, which was traced back to defendant; the GPS

13 The trial court instructed the jury with CALCRIM No. 375 as follows: “The People
presented evidence that the defendant committed another offense of robbery that was not
charged in this case. You may consider this evidence only if the People have proved by a
preponderance of the evidence that the defendant in fact committed the uncharged
offense. Proof by a preponderance of the evidence is a different burden of proof than
proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if
you conclude that it is more likely than not that the fact is true. [¶] If the People have not
met this burden, you must disregard this evidence entirely. If you decide that the
defendant committed the uncharged offense, you may, but are not required to, consider
the evidence for the limited purpose of deciding whether or not the defendant was the
person who committed the offense alleged in this case. When the defendant used force or
fear to take property in regards to Count I, he intended to deprive the owner of it
permanently or remove it from the owner’s possession for so extended a period of time
that the owner would be deprived of a major portion of the value or enjoyment of the
property. The defendant had a motive to commit the offenses alleged in the case. The
defendant’s alleged actions were not the result of mistake or accident, or the defendant
had a plan or scheme to commit the offenses alleged in this case. [¶] In evaluating this
evidence, consider the similarity or lack of similarity between the uncharged offense and
the charged offense. Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime. If you conclude that the defendant committed
the uncharged offenses, that conclusion is only one factor to consider along with all the
other evidence. It is not sufficient by itself to prove that the defendant is guilty of count
I. The People must still prove the charge beyond a reasonable doubt.”

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tracking indicating the phone corresponding to that number was in the area of each of the
robberies; the victims were both taxicab drivers; both robberies occurred at night when it
was dark; defendant used a gun in both robberies; defendant sat in the same location in
each taxi; and defendant stole the same items from each victim, cash and cellular phones.
The prosecutor asserted that these similarities amounted to a “criminal signature.”
B. Defendant’s Contentions
Defendant asserts that the trial court abused its discretion in admitting evidence
related to the uncharged Sacramento cabdriver robbery. He asserts the evidence was
propensity/character evidence inadmissible under Evidence Code section 1101,
subdivision (a), that it was inadmissible as substantially more prejudicial than probative
under Evidence Code section 352, and that it violated his right to due process and a
fundamentally fair trial.
C. Analysis
1. Evidence Code Section 1101, subdivision (b)
“ ‘[T]he admissibility of uncharged crimes depends upon three factors: (1) the
materiality of the facts sought to be proved; (2) the tendency of the uncharged crimes to
prove or disprove the material fact [i.e., probative value]; and (3) the existence of any
rule or policy requiring the exclusion of relevant evidence [i.e., prejudicial effect or other
section 352 concern].’ ” (Hendrix, supra, 214 Cal.App.4th at p. 238.) As stated ante,
“[c]ourts subject other crimes evidence to ‘ “extremely careful analysis” ’ [citation] and
review the admission of such evidence for abuse of discretion.” (Ibid.)
2. Materiality and Probative Value
With regard to the permissible bases for admission of other crimes evidence
contemplated in Evidence Code section 1101, subdivision (b), our high court has stated:
“The least degree of similarity (between the uncharged act and the charged offense) is
required in order to prove intent. . . . In order to be admissible to prove intent, the
uncharged misconduct must be sufficiently similar to support the inference that the

35
defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (Ewoldt, supra, 7
Cal.4th at p. 402.) Our high court continued: “To establish the existence of a common
design or plan, the common features must indicate the existence of a plan rather than a
series of similar spontaneous acts, but the plan thus revealed need not be distinctive or
unusual. . . . [E]vidence that the defendant has committed uncharged criminal acts that
are similar to the charged offense may be relevant if these acts demonstrate
circumstantially that the defendant committed the charged offense pursuant to the same
design or plan he or she used in committing the uncharged acts. Unlike evidence of
uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need
only exist to support the inference that the defendant employed that plan in committing
the charged offense.” (Id. at pp. 402-403.) Finally, our high court stated: “The greatest
degree of similarity is required for evidence of uncharged misconduct to be relevant to
prove identity. For identity to be established, the uncharged misconduct and the charged
offense must share common features that are sufficiently distinctive so as to support the
inference that the same person committed both acts. [Citation.] ‘The pattern and
characteristics of the crimes must be so unusual and distinctive as to be like a
signature.’ ” (Id. at p. 403.)
In the commission of both robberies, the perpetrator called for a taxi from the
same mobile phone number, a number linked to defendant. In each case, the taxi driver
arrived at the designated location to pick up his fare. The perpetrator sat down in the
right rear seat. In commencing the robberies, the perpetrator in each instance repeated,
“ ‘Give me everything.’ ” In each case, the taxi driver turned around to see the
perpetrator pointing a handgun at him. In each case, the perpetrator took the taxi driver’s
money and cell phone, and, additionally, defendant took a Bluetooth device from the
victim in the instant case. The perpetrator then exited the vehicle. In each instance,
when the victim did not immediately flee the area, when it appeared the victim was

36
looking at him, the perpetrator ordered the driver to leave and threatened to shoot or kill
him.
Based on the totality of the similarities, particularly the use of the same phone
number, we conclude that the trial court did not abuse its discretion in determining that
evidence of the uncharged Sacramento robbery was relevant to prove defendant’s identity
as the perpetrator of the charged West Sacramento robbery. As the evidence summarized
ante demonstrates, the uncharged Sacramento robbery and the charged West Sacramento
robbery “share[d] common features that are sufficiently distinctive so as to support the
inference that the same person committed both acts,” and the pattern and characteristics
of each robbery were sufficiently “ ‘unusual and distinctive as to be like a signature.’ ”
(Ewoldt, supra, 7 Cal.4th at p. 403.)
We do not assign as much significance to the asserted “myriad differences”
between the charged and the uncharged robberies raised by defendant as he does. We
find several of these differences to be inconsequential to the analysis, including the fact
that the two robberies occurred in different cities; that one occurred in the “early morning
hours” and another occurred “late at night”; that, in one of the robberies, the perpetrator
rode in the taxi for a period of time before commencing the robbery; and that there was
only testimony describing the sound of the cocking of the handgun as to one of the
robberies. Other differences may be more significant, such as the facts that, following
one of the robberies, the perpetrator discharged the handgun and that the perpetrator was
observed getting into a vehicle occupied by another person. However, we conclude that
these differences were not sufficient to undermine our conclusion that the two robberies
were sufficiently similar as to be relevant and admissible on the issue of identity. Indeed,
as we discuss post, one of the differences—the fact that the robber fired the gun in the
Sacramento robbery—had additional probative value.
Moreover, because we conclude that the uncharged robbery was relevant and
admissible as to identity, as the People assert, by even greater force of reason, the

37
evidence was admissible as to other matters requiring lesser degrees of similarity, such as
intent.14 (Ewoldt, supra, 7 Cal.4th at pp. 402-403; see also People v. Lindberg (2008) 45
Cal.4th 1, 22-26 [evidence of uncharged robberies admissible under Evidence Code
section 1101, subdivision (b), to prove intent to rob in felony murder special
circumstance case].)
Contrary to defendant’s contentions, identity and intent were both material and at
issue at trial.15 By pleading not guilty, defendant put all elements of the charged crime,
and the enhancement allegation, in dispute. (People v. Scott (2011) 52 Cal.4th 452, 470;
People v. Loy (2011) 52 Cal.4th 46, 72 [“The prosecution does, indeed, have to prove all
necessary elements of the crime beyond a reasonable doubt”].)
We conclude that the uncharged Sacramento robbery was material to prove
defendant’s identity as the perpetrator of the West Sacramento robbery, as well as

14 Defendant is correct that the trial court did not expressly rule that the uncharged acts
evidence was admissible to prove identity. Defendant asserts that the discrepancy
between the court’s ruling and CALCRIM No. 375, which provided that the evidence
was relevant to additional considerations, “only magnifies the error of the trial court’s
ruling and bolsters our contention that the uncharged robbery evidence should not have
been admitted.” We may affirm the trial court’s determination in admitting the evidence,
even if the trial court’s explanation is wrong on the law. (See People v. Zapien (1993) 4
Cal.4th 929, 976 [a ruling or decision, itself correct in law, will not be disturbed on
appeal merely because given for a wrong reason; if right upon any theory of the law
applicable to the case, it must be sustained regardless of the considerations which may
have moved the trial court to its conclusion].) By even greater force of reason, then, we
may affirm the trial court’s correct determination on both its stated basis and an
additional basis not verbalized by that court. Moreover, the court instructed using
CALCRIM No. 375, which told the jury that it could consider the uncharged acts
evidence for purposes of, among other things, identity.
15 While defendant asserts the evidence was cumulative and therefore, not probative on
the issue of intent, he does not assert that, in light of his confession to the charged
robbery, evidence of the uncharged robbery was cumulative on the issue of identity.
Accordingly, we do not address that issue.

38
intent.16 We also conclude that this evidence was highly probative of those issues;
defendant’s commission of the Sacramento robbery, using his cell phone number, was
highly probative as to whether he committed the very similar West Sacramento robbery.
We also conclude the evidence related to the Sacramento robbery was highly
probative to prove the firearm enhancement allegation in the charged robbery, i.e., that
the gun he used in the charged robbery was a real firearm. As noted, the perpetrator of
the Sacramento robbery fired his firearm twice when A.S. followed him. This robbery
occurred approximately two months after the West Sacramento robbery, and because
defendant was known to habitually carry a firearm, this evidence was probative as to
whether defendant used that same firearm in the charged robbery and that that firearm
was real. (See Carpenter, supra, 21 Cal.4th at p. 1052.)
3. Evidence Code Section 352
We further conclude that the trial court correctly determined that the probative
value of this evidence was not substantially outweighed by the probability that its
admission would necessitate undue consumption of time or create a substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.)
The admission of this evidence did not result in undue consumption of time in the context
of this trial. Nor did the admission of this evidence create a substantial danger of
confusing the issues or misleading the jury. Defendant admitted to Bernacchi his
perpetration of the Sacramento cabdriver robbery, and thus the jury would not have been
diverted into a determination as to whether defendant was the perpetrator of that crime.
Defendant asserts that the evidence concerning the Sacramento robbery was more
inflammatory because the perpetrator discharged his firearm twice. We are not

16 Defendant does not specifically assert error in instructing the jury that the evidence
could be considered as to motive, lack of mistake or accident, or common scheme or
plan. Accordingly, we do not address those theories.

39
persuaded that this resulted in undue prejudice, however. Nobody was struck by the
gunfire, there was no evidence the victim’s car was struck and there is no evidence as to
how close the bullets came to the victim. Thus, we conclude this fact was unlikely to
inflame the passions of the jury such that the probative value of this evidence was
substantially outweighed by the probability of a substantial danger of undue prejudice.
Indeed, as noted, there was additional probative value related to proving the firearm
enhancement in the charged offense, and that probative value outweighed any prejudice
resulting from evidence the gun was fired.
As we have noted, “[a] limiting instruction can ameliorate [Evidence Code]
section 352 prejudice by eliminating the danger the jury could consider the evidence for
an improper purpose.” (Hendrix, supra, 214 Cal.App.4th at p. 247.) As set forth ante,
the trial court instructed the jury with CALCRIM No. 375 on the limited purposes for
which the jury could consider the uncharged robbery evidence. (See fn. 13, ante.)
Defendant quibbles with the instruction, asserting that the language stating, “ ‘In
evaluating this evidence, consider the similarity or lack of similarity between the
uncharged offense and the charged offense,’ ” was flawed. Defendant relies on Hendrix,
supra, 214 Cal.App.4th at page 247, in which we concluded, based on essentially the
same language, that, “in the context of [that] case, the instruction was confusing.” The
“context” of Hendrix included the fact that we found the prior uncharged acts to be
materially dissimilar to the charged offense, lacking in probative value, unduly
prejudicial, and cumulative. (Id. at pp. 239, 247.) The context of this case is quite
different. Here, the prosecutor argued in closing that the highly similar uncharged
robbery was relevant to prove among other things identity and intent. We conclude that,
in the context of this case, CALCRIM No. 375 was not confusing and did not compound
any preexisting problem. The similarity between the charged and uncharged offenses
was relevant in the ways asserted by the prosecutor in closing arguments, and the

40
instruction directed the jurors to consider the similarities or lack thereof in making their
determinations.
III. Cumulative Error
According to defendant, even if we find individual errors to be harmless, the
cumulative effect of these alleged errors deprived him of due process and a
fundamentally fair trial. The premise behind the cumulative error doctrine is that, while a
number of errors may be harmless taken individually, their cumulative effect may require
reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) We have concluded
that defendant’s claims of error are without merit. We further conclude defendant was
not deprived of a fair trial.
IV. Senate Bill No. 620
In addition to the four-year sentence imposed on count 1, the trial court imposed a
10-year consecutive term for the personal use of a firearm enhancement.
After defendant was convicted but before his case became final, the Governor
signed Senate Bill No. 620 (2017-2018 Reg. Sess.) (S.B. 620). Following the enactment
of S.B. 620, section 12022.53, at issue in this case, now includes language stating: “The
court may, in the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required to be imposed by this
section. The authority provided by this subdivision applies to any resentencing that may
occur pursuant to any other law.” (§ 12022.53, subd. (h).) Prior to the enactment of S.B.
620, and when defendant was sentenced, courts did not have discretion to strike or
dismiss these enhancements.
We granted defendant’s request for supplemental briefing on the impact of S.B.
620. In his supplemental opening brief, defendant asserts that S.B. 620 must be applied
retroactively to him and his case must be remanded to the trial court to permit the court to
exercise its now authorized discretion to strike his section 12022.53, subdivision (b),
firearm enhancement.

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 The People concede that S.B. 620 must be applied retroactively and we agree.
(People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) The People also concede
remand is appropriate and we shall do so.
DISPOSITION
The matter is remanded for the trial court to consider whether to exercise its
discretion to strike or dismiss the section 12022.53, subdivision (b), enhancement in the
interest of justice under section 1385, subdivision (a). In all other respects, the judgment
is affirmed.

/s/
MURRAY, J.

We concur:

/s/
MAURO, Acting P. J.

/s/
RENNER, J.

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