People v. Maden CA2/1

Filed 7/1/21 P. v. Maden CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B302115

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA069855)
v.

TRAYNELL NATRON MADEN et
al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Charles A. Chung, Judge. Affirmed with
directions.
Law Office of Steven Schorr, Steven Schorr, under
appointment by the Court of Appeal, for Defendant and Appellant
Traynell Maden.
Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant Patrick Matthews.
 Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

A jury convicted Traynell Maden of first degree murder and
second degree robbery and found gang allegations to be true. The
jury convicted Patrick Matthews of second degree murder and a
possession count and found gang, gun, recidivism, and violent
felony allegations to be true. The trial court sentenced appellants
to long prison terms.
Appellants contend (1) the trial court erred in denying a
request for instructions on self-defense and voluntary
manslaughter, (2) the trial court erred in denying a motion for
new trial, (3) counsel was ineffective for failing to enhance video
evidence and locate two witnesses, (4) the trial court erred in
denying motions to unseal juror information, (5) Matthews’s
sentence for gun possession should have been stayed under Penal
Code section 654, and (6) the one-year enhancement he received
should be stricken.
We agree with the last point but reject the others, and thus
affirm the conviction with directions to strike Matthews’s one-
year enhancement.
BACKGROUND
On October 29, 2016, appellants, members of the Pasadena
Denver Lane (PDL) Bloods gang, confronted Jerry Penn, a former
member of the Compton Crips, at a Halloween Party in
Lancaster. Maden yanked gold chains from Penn’s neck and told

2
Matthews to shoot him, whereupon Matthews shot Penn several
times.
When the shooting stopped, Penn was able to make it into a
car with his sister, Destiny, and her boyfriend, Arlen Carter, and
they drove away in the direction of Destiny’s house. After about
a mile, Destiny lost control of the car and crashed it into a curb
near her house. Carter pulled Penn from the car, ran down the
street to get Penn and Destiny’s mother, and returned with her in
a car. When her mother arrived, Destiny screamed, “Don’t worry,
Mom. I got his piece.” Penn died at the scene. No gun belonging
to him was ever recovered.
A video surveillance camera located across the street from
the Halloween party more or less captured the incident, with poor
resolution.
Both appellants were identified by witnesses—although
not always consistently—during the police investigation,
preliminary hearing, and trial, and cell phone evidence at trial
placed Matthews’s phone in the vicinity of the party.
At trial, Destiny and Carter, were the prosecution’s main
witnesses. Destiny testified that Matthews, whom she knew,
approached to within approximately a foot of her and Penn,
holding a black semi-automatic handgun. She placed herself
between Penn and Matthews, knelt on the ground, and told
Matthews, “This is my brother,” “put up your gun. Put up your
gun,” and repeated, “no.” Carter also placed himself between
Penn and Matthews, told Matthews, “Put the gun up,” and asked,
“What’s the problem?”
Destiny and Carter testified that Maden snatched two gold
chains that were around Penn’s neck, then ran away.

3
 They saw Matthews, who was approximately “an arm
length” to three or four feet away, raise his gun and shoot Penn.
They then dropped to the ground and heard additional gunshots.
Penn died from a gunshot wound through the heart.
Appellants’ defense was mistaken identity, based on (1)
several witnesses’ purported willingness to fabricate testimony
against a rival gang, (2) there being pandemonium in the
immediate aftermath of the shooting, and (3) there being no soot
or stippling on Penn’s body, indicating the actual shooter was
farther away than Matthews’s purported three or four feet.
Other trial proceedings will be described below as they
become relevant.
The jury convicted appellants, and the court sentenced
Matthews to 55 years to life plus eight years, comprising 30 years
to life for the murder, 25 years to life for the gun enhancement,
three years on the possession count, four years for the gang
enhancement, and one year for having suffered a prior conviction.
The court sentenced Maden to 25 years to life, plus 15 years,
comprising 25 years to life for the murder, five years for the
robbery, and 10 years for the gang/violent felony enhancement.
The court denied appellants’ motions for new trial.
DISCUSSION
A. Instructions on Voluntary Manslaughter
Appellants contend the trial court erred in refusing to
instruct on self-defense, heat of passion, and voluntary
manslaughter. We disagree.
1. Relevant Proceedings
There was evidence at trial that Penn had gunshot residue
on his hands when he died, and that his sister told their mother,

4
“don’t worry mom, I got his piece” in the aftermath of the
shooting.
Matthews’s attorney argued to the jury that a surveillance
video of the incident showed Penn firing a weapon “southwards”
before himself being shot “from someone north.” But attorney
argument is not evidence, and in any event the trial court stated
that the video was of such poor quality that it was “hard to see
anything.” The only actual evidence characterizing the video was
the testimony of Los Angeles County Sheriff’s Detective Gail
Durham, who stated it depicted “the shooting area” but not “the
shooting itself.”
Although when discussing possible jury instructions both
appellants’ trial attorneys affirmatively represented they would
assert no defenses based on self-defense or voluntary
manslaughter, they nevertheless ultimately requested a self-
defense instruction, arguing the gunshot residue on Penn’s hands
suggested he “was the shooter initially and that someone
responded in self-defense.”
The court refused to give the instruction, finding the
gunshot residue evidence was insufficient to support them
because it could have been caused by reasons other than Penn
firing a weapon. The court found that “[a]side from that one bare
piece of evidence, there was no” evidence to indicate Penn
“showed any aggression,” nor any that appellants “had the actual
but unreasonable belief” that “they had to defend themselves” or
actually were defending themselves at the time of the shooting.
No one testified that Penn had a gun at the party, for example.
Although there was testimony that Destiny Penn told her mother
that she “got” Penn’s “piece” after the fact, in a different location,
nothing indicated he had a gun in hand during the shooting.

5
 However, the court instructed the jury with CALJIC No.
8.73, which stated that if there was “provocation which played a
part in inducing an unlawful killing of a human being, but the
provocation was not sufficient to reduce the homicide to
manslaughter,” the jury should “consider the provocation for the
bearing it may have on whether the defendant killed with or
without deliberation and premeditation.”
2. Legal Principles
A trial court must instruct on general principles of law
relevant to the issues raised in a criminal case. (People v. Koontz
(2002) 27 Cal.4th 1041, 1085.) The trial court must sua sponte
instruct on a defense “if it appears that the [appellant] is relying
on such a defense, or if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the
[appellant’s] theory of the case.” (People v. Maury (2003) 30
Cal.4th 342, 424.) Substantial evidence is that which, if believed,
would be sufficient for a jury to find a reasonable doubt as to
defendant’s guilt. (People v. Michaels (2002) 28 Cal.4th 486, 529;
People v. Salas (2006) 37 Cal.4th 967, 982-983.)
“ ‘Under California law, a lesser offense is necessarily
included in a greater offense if either the statutory elements of
the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that
the greater cannot be committed without also committing the
lesser.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.)
A trial court errs if it fails to instruct “on all theories of a lesser
included offense which find substantial support in the evidence.
On the other hand, the court is not obliged to instruct on theories
that have no such evidentiary support.” (Id. at p. 162.) The
“existence of ‘any evidence, no matter how weak’ will not justify

6
instructions on a lesser included offense, but such instructions
are required whenever evidence that the defendant is guilty only
of the lesser offense is ‘substantial enough to merit consideration’
by the jury. [Citations.] ‘Substantial evidence’ in this context is
‘ “evidence from which a jury composed of reasonable [persons]
could . . . conclude” ’ that the lesser offense, but not the greater,
was committed.” (Ibid.)
“We review de novo a trial court’s failure to instruct on a
lesser included offense,” viewing the evidence “in the light most
favorable to the defendant.” (People v. Millbrook (2014) 222
Cal.App.4th 1122, 1137.)
Homicide is divided into murder, which requires malice
aforethought, and manslaughter, which does not. (People v.
Beltran (2013) 56 Cal.4th 935, 941.)
A killing without malice but induced by a sudden quarrel or
heat of passion is voluntary manslaughter, a lesser included
offense of murder. (People v. Williams (1988) 199 Cal.App.3d
469, 475.)
Voluntary manslaughter on a heat of passion theory has
both subjective and objective components. (People v. Moye (2009)
47 Cal.4th 537, 549.) “To satisfy the subjective element . . . , the
accused must be shown to have killed while under ‘the actual
influence of a strong passion’ ” induced by the victim’s
provocation. (Id. at p. 550.) The passion aroused may be any
“ ‘ “ ‘violent, intense, high-wrought or enthusiastic emotion’ ” ’
[citations] other than revenge.” (People v. Breverman, supra, 19
Cal.4th at p. 163.)
To satisfy the objective element, the heat of passion must
be a result of sufficient provocation—that is, conduct by the
victim “sufficiently provocative that it would cause an ordinary

7
person of average disposition to act rashly or without due
deliberation and reflection.” (People v. Moye, supra, 47 Cal.4th at
pp. 549-550.) “To be adequate, the provocation must be one that
would cause an emotion so intense that an ordinary person would
simply react, without reflection.” (People v. Beltran, supra, 56
Cal.4th at p. 949.) Both heat of passion and adequate
provocation “must be affirmatively demonstrated.” (People v. Lee
(1999) 20 Cal.4th 47, 60.)
Malice aforethought may also be negated by an actual but
unreasonable belief in the need to defend oneself or another from
imminent danger of death or great bodily injury, reducing a
killing from murder to voluntary manslaughter. (People v.
Randle (2005) 35 Cal.4th 987, 990, 994, overruled on other
grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) This
doctrine is commonly known as imperfect self-defense or defense
of another. (Randle, at p. 994.)
Self-defense against an assault requires an actual and
reasonable belief in the need to defend against an imminent
danger of bodily injury. (People v. Humphrey (1996) 13 Cal.4th
1073, 1082.) The trier of fact “must consider what ‘would appear
to be necessary to a reasonable person’ ” in the position of
appellant, with the appellant’s knowledge and awareness. (Id. at
pp. 1082-1083.) CALCRIM No. 3470 provides in pertinent part
that a defendant acts in lawful defense of another and is not
guilty of assault, if (1) he reasonably believed someone else was
in imminent danger of suffering great bodily injury; (2) he
reasonably believed the immediate use of force was necessary to
defend against that danger; and (3) he used no more force than
was reasonably necessary to defend against that danger.

8
 The question whether the trial court erred in refusing to
instruct the jury on the self-defense theory turns on whether the
record contains substantial evidence that, if believed by the jury,
would raise a reasonable doubt as to whether appellants killed
Penn in a reasonable effort to defend themselves.
3. Application
Here, there was no evidence that appellants acted in self-
defense or a heat of passion. There was no evidence that Penn
brandished a weapon during the encounter in which he was
killed, for example, nor that he acted aggressively in any way.
There was no evidence that he had issued verbal threats to the
defendants at the Halloween party. The only evidence
associating him with any firearm was the gunshot residue on his
hands and his sister’s statement after the murder that she “got
his piece.” This evidence indicated at most that Penn had
recently touched a gun; nothing tied any such gun use to the
Halloween party or his murder. Evidence of gun residue on
Penn’s hand the day he was killed, without more, does not
constitute substantial evidence that appellants killed him in a
reasonable effort to defend themselves or in response to an act of
provocation sufficient to reduce the crime to manslaughter.
Therefore, no basis existed to give self-defense or voluntary
manslaughter instructions.
B. Motion for New Trial
Appellants contend the trial court erred in denying their
motions for new trial. We disagree.
1. Relevant Proceedings
Appellants filed motions for new trial, arguing that newly
discovered evidence, including an enhancement of the
surveillance video, showed that Penn fired the first shot.

9
 The motions were supported by the declarations of Brenden
Johnson and Autumn Kees. Johnson declared that he was
standing with Maden watching an argument develop after the
party. He saw Penn pull out a handgun during the shooting, and
ran to his car with Maden after shots were fired. Appellant
Maden’s attorney represented that he wanted to call Johnson as
a witness during trial, but could not locate him, only later
discovering he had been incarcerated. Matthews’s attorney
represented that he was unaware of Johnson’s potential
testimony during trial.
Kees declared that after the party she was talking to
friends, including Johnson. Maden also was present and was
talking with Johnson. Kees saw an “altercation” between “a guy
with long hair” and “another male.” A third male approached
from the opposite side of the street and snatched chains from the
man with long hair. “The long hair guy then shot at the guy who
snatched the chain.” She knew the male with the long hair had
fired the shots because she saw him “motion his arm” and she
could “see the shots.” She saw no one else fire a gun. The
attorneys declared they were unaware of Kees’s information until
after trial, when Johnson mentioned her name. Kees contacted
Maden’s attorney after hearing about the guilty verdict.
The prosecution opposed the motions, arguing the new
evidence was not newly discovered, as the surveillance had been
disclosed to Maden during discovery and to Matthews during
presentation of the prosecution’s case-in-chief, and Johnson was
known to the defense attorneys a year and a half before trial.
The prosecution argued that “[a] simple check of the Department
of Corrections website” would have revealed Johnson’s
whereabouts. Similarly, Kees had been with Maden during the

10
shooting, so he knew long before the end of trial that she might
possess exculpatory evidence.
At the hearing on the motions, the court inquired why the
video was not enhanced until after the verdicts. Maden’s counsel
explained that Maden did not ask for the enhancement until the
last day of trial, and said that late enhancement was a “trial
strategy.”
The parties and court viewed the enhanced surveillance
video, upon which the court commented, “I will be honest. I’m
not sure what I’m looking for. I know what everyone says I
should be looking for. I just don’t see it,” “I’m still having trouble
figuring out who is who allegedly.”
The court found Destiny Penn’s and Carter’s testimony to
have been “incredibly believable,” both having “a huge amount of
credibility,” and found that Destiny had “the greatest motivation
to see the actual killers brought to justice.”
But the court expressed concern about the credibility of
Johnson and Kees. It found that “the fact that you have two
witnesses coming in out of the blue right after the verdict,” and
“years after the incident,” was “questionable” because why would
the witnesses allow Maden to “sit in jail for years”? Moreover,
Johnson declared he did not see the actual shooting but merely
saw Penn pull out a handgun, and thus “was not that probative”
and “would not add much” at any retrial.
The court found that Kees’s testimony that she saw no one
but Penn fire a weapon was “problematic” because that would not
explain “the victim being dead.” The court found that Kees’s
testimony would probably not be “enough that it would lead to a
different verdict.”

11
 Regarding the surveillance video, which we have viewed,
the court noted that the enhanced video was “vague at best,” and
the court “could not tell where the muzzle flash came from.” The
court saw a figure that could be Penn raise his hand, and what
could have been a “muzzle flash” appeared between Penn and
another man, who could have been Matthews. The court stated
that because the video failed to show “four flashes,” it was “not
catching” the shooting due to the distance and the “lack of
clarity.” One interpretation, the court said, was that Matthews
“pulled out a gun, the victim in a defensive reflection [sic] put his
hands out, and then you see the muzzle flash,” and “when you
couple that with Destiny and [Carter], who were very credible,
was it probable that there would be a different verdict? I don’t
think we have met that standard.”
The court commented that Maden’s refusal to enhance the
surveillance video before the end of trial “was trial strategy
because sometimes we don’t want to know what certain things
are going to say.” Trial attorneys know to “[b]e careful what you
ask, be careful what rock you look under, because what you find
may not help you. It may actually hurt you.” As such, it was
“sound” defense strategy to not enhance the video earlier.
Finding that a different result was not reasonably probable,
the court denied appellants’ motions.
2. Pertinent Legal Principles
“When a verdict has been rendered . . . against the
defendant, the court may, upon his application, grant a new trial,
in the following cases only: [¶] . . . [¶] 8. When new evidence is
discovered material to the defendant, and which he could not,
with reasonable diligence, have discovered and produced at the
trial. . . .” (Pen. Code, § 1181, subd. 8.)

12
 “A new trial is a re-examination of the issue in the same
Court, before another jury, after a verdict has been given.” (Pen.
Code, § 1179.) It may be granted only if the evidence makes a
different result reasonably probable on retrial. (People v.
O’Malley (2016) 62 Cal.4th 944, 1016.)
“In ruling on a motion for new trial based on newly
discovered evidence, the trial court considers the following
factors: ‘ “1. That the evidence, and not merely its materiality, be
newly discovered; 2. That the evidence be not cumulative merely;
3. That it be such as to render a different result probable on a
retrial of the cause; 4. That the party could not with reasonable
diligence have discovered and produced it at the trial; and 5. That
these facts be shown by the best evidence of which the case
admits.” ’ [Citations.]” (People v. Delgado, supra, 5 Cal.4th at p.
328.) “ ‘[T]he trial court may consider the credibility as well as
materiality of the evidence in its determination [of] whether
introduction of the evidence in a new trial would render a
different result reasonably probable.’ [Citation.]” (Id. at p. 329.)
“The evidence generally must be newly discovered.” (People
v. Dyer (1988) 45 Cal.3d 26, 52.)
“ ‘ “The determination of a motion for a new trial rests so
completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion
clearly appears.” ’ ” (People v. Delgado, supra, 5 Cal.4th at p.
328.) “ ‘ “[I]n determining whether there has been a proper
exercise of discretion on such motion, each case must be judged
from its own factual background.” ’ ” (Ibid.) We presume the
trial court properly exercised its discretion. (People v. Sutton
(1887) 73 Cal. 243, 248.)

13
 3. Application
a. Appellants Failed to Exercise Reasonable
Diligence
It was undisputed that Maden possessed the surveillance
video before trial but chose not to have it enhanced until too late
to present it to the jury. Maden’s counsel stated this was a
litigation strategy. Matthews became aware of the video when
the prosecution showed it to the jury, and thus also had time to
enhance it before verdicts were rendered. The trial court could
therefore reasonably conclude that appellants failed to exercise
reasonable diligence in obtaining the enhanced video.
The trial court could also reasonably conclude that
appellants failed to exercise reasonable diligence in obtaining the
testimony of Johnson and Kees. They knew that Johnson had
witnessed the shooting but did not make reasonable efforts to
obtain his testimony before the end of trial. Reasonable efforts
also would have uncovered the identity of Kees, who was one of
Johnson’s friends and was standing with him and Maden at the
time of the shooting.
Appellants argue that by failing to enhance the video
earlier, their attorneys rendered ineffective assistance. We
disagree.
To establish ineffective assistance of counsel, a defendant
must demonstrate that his counsel’s performance fell below an
objective standard of reasonableness under prevailing
professional norms and that he was prejudiced by the deficient
performance. (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 691-692; People v. Williams (1997) 16 Cal.4th 153, 215.)
“A court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional

14
assistance. [Citation.] Tactical errors are generally not deemed
reversible, and counsel’s decisionmaking must be evaluated in
the context of the available facts. [Citation.] To the extent the
record on appeal fails to disclose why counsel acted or failed to
act in the manner challenged, we will affirm the judgment unless
counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation.” (People
v. Maury, supra, 30 Cal.4th at p. 389.)
Here, the record is silent on why Matthews’s attorney failed
to enhance the video before trial. Maden’s attorney admitted
that declining to enhance the video was a trial strategy. In either
case, the strategy is evident: The attorneys could reasonably
have concluded that an enhanced video would show that
Matthews shot Penn and Maden yanked the gold chains from
Penn’s neck, both of which identifications would have
contradicted appellants’ mistaken identity defense.
b. No Different Result was Reasonably Probable
Even had appellants exercised reasonable diligence in
obtaining their new evidence, no different result was reasonably
probable. The jury had already seen video evidence allegedly
showing Penn firing a weapon but had rejected that conclusion.
The trial court found that even the enhanced video failed to show
what the defense claimed was depicted, a finding with which we
concur based on our independent viewing. Based on the
vagueness of the video, the court could reasonably conclude it
would not have rebutted the testimony of Destiny and Carter,
and could thus conclude that no different result was reasonably
probable even if the video had been shown to a jury.

15
C. The Trial Court Did Not Abuse Its Discretion In
Refusing To Unseal The Jurors’ Information
After the verdicts, Maden’s counsel allegedly overheard a
deputy sheriff tell another deputy that two jurors agreed to vote
to convict appellants because they were gang members.
Appellants thereafter filed several successive motions to unseal
the juror’s identifying information pursuant to Code of Civil
Procedure section 237. Two hearings were held, after each of
which the court denied the motions. Appellants contend the trial
court erred in denying them access to juror identifying
information. We disagree.
1. Pertinent Proceedings
In a declaration attached to two of the motions, Sabrina
Harowitz, Maden’s counsel, stated that she overheard Los
Angeles County Sheriff’s Deputy Alvaro Pulido tell another
deputy that he overheard one juror tell another during
deliberations that he would vote for a guilty verdict because
“ ‘what does it matter, they’re gang members anyway. Let’s go
home.’ ” Harowitz attached a screen shot from her phone
showing that she sent a text message to her paralegal regarding
the conversation.
The court held hearings on the matter. Harowitz testified
in accordance with her declaration. Deputy Pulido testified that
although he escorted the jurors back and forth to the jury room
during deliberations, he was unable to hear them discuss the
case. He never told anyone he overheard jurors express feelings
towards gang members, and had no recollection of the statement
Harowitz allegedly overheard. If Pulido believed that jurors
acted inappropriately he would seek advice from the court; he
had not done so in this case.

16
 Over the course of the two hearings, the court observed
that this had been “a gang-driven case,” and many deputies had
been needed to quell a melee in the parking lot. As such, the
motion to unseal was potentially asking jurors to walk “a
gauntlet from the parking lot,” “faced by very hostile family
members, perhaps gang members and/or friends.” The court
noted that Deputy Pulido “made it absolutely clear he never
made such a statement,” and observed that Matthews’s attorney,
who was also “within earshot” of Pulido at the time, did not hear
the statement. The court noted that conversations involving
multiple people are “dynamic” and “fluid,” and “tack[] in different
directions constantly.” The likeliest scenario was that Harowitz,
who was “multitasking, trying to get transcripts,” misheard
Pulido’s conversation. Concluding there had been no “prima facie
showing that there is a reasonable likelihood” of misconduct, the
court denied the motions.
2. Legal Principles
A court must seal the records of the personal information of
jurors after a verdict in a criminal case. (People v. Munoz (2019)
31 Cal.App.5th 143, 165.) A criminal defendant must petition the
court to obtain the records. (People v. McNally (2015) 236
Cal.App.4th 1419, 1430.) “ ‘The petition shall be supported by a
declaration that includes facts sufficient to establish good cause
for the release of the juror’s personal identifying information.’ ”
(Code Civ. Proc., § 237, subd. (b).) Such a showing must establish
a reasonable likelihood that jury misconduct occurred, or that
“talking to the jurors is reasonably likely to produce admissible
evidence of juror misconduct.” (People v. Johnson (2013) 222
Cal.App.4th 486, 493.)

17
 If the evidence conflicts as to whether misconduct has
occurred, it is within the court’s discretion to deny a motion to
produce juror records. (People v. Johnson (2015) 242 Cal.App.4th
1155, 1164.)
We review a trial court’s denial of a petition requesting
release of juror information for an abuse of discretion. (People v.
Munoz, supra, 31 Cal.App.5th at p. 165.)
3. Application
Here, Deputy Pulido testified that he heard no juror discuss
the case or say a vote was changed because of the appellants’
gang membership. He had no discussion with another deputy
about the jurors’ feelings toward gang members, and would have
sought the court’s guidance had he become aware of any juror
misconduct. Moreover, Matthews’s attorney, who was present for
the conversation, did not overhear the juror’s comment. In light
of this evidence, the trial court did not abuse its discretion in
concluding that appellants failed to establish that talking to the
jurors would be reasonably likely to produce evidence of juror
misconduct.
D. Imposition of Consecutive Firearm-Related
Sentences Did Not Violate Penal Code Section 654
The court imposed a consecutive sentence of three years on
Matthews for possession of a firearm by a felon. Matthews
contends that because he received a 25-year-to-life firearm
enhancement, Penal Code section 654 renders the sentence for
firearm possession unlawful. We disagree.
Penal Code section 654 provides that “[a]n act or omission
that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the

18
longest potential term of imprisonment, but in no case shall the
act or omission be punished under more than one provision.”
Penal Code “section 654 applies not only where there was
but one act in the ordinary sense, but also where there was a
course of conduct which violated more than one statute but
nevertheless constituted an indivisible transaction. [Citation.]
Whether a course of conduct is indivisible depends upon the
intent and objective of the actor. [Citation.] If all the offenses
were incident to one objective, the defendant may be punished for
any one of such offenses but not for more than one. . . . [¶] On
the other hand, if the evidence discloses that a defendant
entertained multiple criminal objectives which were independent
of and not merely incidental to each other, he may be punished
for the independent violations committed in pursuit of each
objective even though the violations were parts of an otherwise
indivisible course of conduct.” (People v. Perez (1979) 23 Cal.3d
545, 551-552.)
Even if a defendant harbored a single objective during an
indivisible course of conduct, he or she may be convicted and
punished for each crime of violence committed against a different
victim. (People v. Miller (1977) 18 Cal.3d 873, 876; People v.
Deegan (2016) 247 Cal.App.4th 532, 542.)
“Whether section 654 applies to the fact in a given case is
one of fact for the trial court to decide, and such findings will be
upheld on appeal if there is any substantial evidence to support
them.” (People v. Atencio (2012) 208 Cal.App.4th 1239, 1242.) An
appellate court reviews the trial court’s findings in the light most
favorable to the judgment and presumes in support of the
sentencing order the existence of every fact the jury could
reasonably deduce from the evidence. (Id. at p. 1243.) “ ‘[T]he

19
power of an appellate court begins and ends with the
determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will
support the determination, and when two or more inferences can
reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions from those of the trial
court.’ ” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378,
original italics.)
Here, the jury convicted Matthews of being a felon in
possession of a firearm under Penal Code section 29800,
subdivision (a)(1), which requires “conviction of a felony and
ownership or knowing possession, custody, or control of a
firearm.” (People v. Arce (2020) 47 Cal.App.5th 700, 714.) “The
offense is completed once the intent to possess is perfected by
possession.” (Ibid.)
Whether a violation of subdivision (a)(1) of Penal Code
section 29800 “constitutes a divisible transaction from the offense
in which he employs the weapon depends upon the facts and
evidence of each individual case.” (People v. Jones (2002) 103
Cal.App.4th 1139, 1143.) “[M]ultiple punishment is improper
where the evidence shows that, at most, ‘fortuitous circumstances
put the firearm in the defendant’s hand only at the instant of
committing another offense’ [citation], such as where the
defendant shoots an officer with the gun he wrested away from
the officer moments before [citation], or where the shooting
follows a struggle with the victim over a gun produced by the
victim.” (People v. Vang (2010) 184 Cal.App.4th 912, 916.)
Where the offender must have possessed the firearm before
encountering the victim, however, separate punishment for use of

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a firearm and possession of it is proper. (Jones, at p. 1147; People
v. Ratcliff (1990) 223 Cal.App.3d 1401, 1414.)
Here, the evidence showed that Matthews possessed a gun
when he approached and shot Penn. Therefore no fortuitous
circumstances placed the firearm in his hands at the moment
Penn was killed. Penal Code section 654 therefore poses no bar
to imposition of a consecutive sentence for the possession charge.
E. The One-Year Enhancement Imposed Against
Matthews Must be Stricken
Matthews contends the one-year sentence enhancement is
unlawful and must be stricken. Respondent concedes the point,
and we agree.
The court imposed a one-year sentence enhancement on
Matthews under Penal Code section 667.5, subdivision (b) for
having served a prior prison term for a felony conviction.
Effective January 1, 2020, Penal Code section 667.5, subdivision
(b) was amended to apply only where the prior prison term was
served “for a sexually violent offense as defined in subdivision (b)
of Section 6600 of the Welfare and Institutions Code.” (Pen.
Code, § 667.5, subd. (b).) Because the judgment here is not yet
final, the amendment applies to Matthews. (See People v. Winn
(2020) 44 Cal.App.5th 859, 872-873.)
Matthews’s prior prison term was for a conviction for
carrying a concealed firearm. Therefore, Penal Code section
667.5 does not apply, and the sentence must be stricken.
DISPOSITION
The one-year sentence enhancement imposed on Matthews
is stricken. In all other respects the judgment is affirmed. The
abstract of judgment and the records at the Department of

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Corrections and Rehabilitation shall be corrected by striking the
enhancement.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

FEDERMAN, J.*

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

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