People v. Morris CA4/1

Filed 8/11/21 P. v. Morris CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076312

Plaintiff and Respondent,

v. (Super. Ct. No. SCD272384)

ARROW MORRIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Carolyn M. Caietti, Judge. Affirmed in part; reversed in part; remanded with
directions.
Laura Schaefer, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Christine Levingston Bergman, Deputy Attorneys General, for
Plaintiff and Respondent.
 A jury convicted Arrow Morris of first degree murder (Pen. Code,1
§ 187, subd. (a); count 1); premeditated attempted murder (§§ 664, 187,
subd. (a); count 2); and three counts of being a felon in possession of a firearm
(§ 29800, subd. (a)(1); counts 3-5). The jury also found true that Morris
discharged a firearm resulting in death as to count 1 (§ 12022.53, subd. (d))
and, as to count 2, that Morris intentionally discharged a firearm
(§ 12022.53, subd. (c)). In a separate proceeding, the trial court found true
that Morris suffered a violent felony prior conviction (§ 667, subd. (a)) and a
strike prior (§ 667, subd. (b)-(i).)
The court sentenced Morris to prison for 89 years to life plus 37 years
and four months.
Morris appeals, contending: (1) the trial court erred by admitting gang
evidence against Morris; (2) evidence regarding Morris brandishing guns
when angry was improperly admitted at trial; (3) the trial court erred in
excluding evidence that Morris’s brother was a gang member; (4) there was a
prejudicial instructional error regarding felony murder; (5) there was
insufficient evidence to support an attempted murder conviction under either
the kill zone or direct intent theory; (6) the trial court improperly instructed
the jury on an inapplicable kill zone theory; (7) the admission of body camera
footage during trial was prejudicial; (8) cumulative errors warrant a new
trial; (9) the trial court erred in sentencing Morris to an additional five year
term for a violent felony when such an enhancement had not been pled in the
charging document; (10) the amount of the minimum fine levied on Morris
was improper; and (11) the abstract of judgment should be amended to reflect
that the fines and fees should be stayed.

1 Statutory references are to the Penal Code unless otherwise specified.
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 The People concede that the kill zone instruction was legally erroneous.
We cannot conclude that the instructional error was harmless beyond a
reasonable doubt on the record before us. As such, we must reverse Morris’s
conviction for attempted murder. However, we find substantial evidence
supported a conviction for attempted murder under a direct intent theory.
Therefore, on remand, the prosecution will have the option to retry Morris on
that count alone.
In addition, we conclude the court erred in sentencing Morris to two
additional five year terms for a violent felony enhancement that was not pled.
Also, as the parties agree, the minimum fines levied on Morris were improper
and must be corrected along with the abstract of judgment. We therefore
vacate Morris’s sentence and remand this matter to the superior court to
resentence Morris consistent with this opinion, and, if necessary, after a
retrial, if the prosecution elects to try the attempted murder charge again. In
all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
On the night of June 10, 2017, James C. and his cousin, Sean R.,
decided to go to the Madhouse Comedy Club at Horton Plaza. Sean was in
town visiting James. During the day, they had gone to a brewery and drunk
three mixed drinks before attending the comedy club at about 9:00 p.m.
During the comedy show, James went outside. Sean believed James left
because he felt ill from drinking. Eventually, Sean went outside the comedy
club to find James. The two men ended up walking around Horton Plaza and
playing hide and seek. When they were ready to leave, they started walking
back toward the comedy club so they could exit the mall.
That same night, Morris, his girlfriend Ashley N., and his brother
Alfred M. also decided to go to the Madhouse Comedy Club. On their way to

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the comedy club, they stopped at a liquor store where they met up with
Donnie M. and his friend, Jazmyn A. The two groups followed each other in
their respective vehicles and parked in the parking structure at Horton
Plaza. Everyone except for Ashley got out of their cars, and the group hung
out in the parking structure, drinking alcohol. During this time, Morris
asked whether security at the comedy club would “pat” them down before
entering. Morris then placed a gun behind the seat in Ashley’s car.
Once they arrived at the comedy club, Morris, Ashley, and the rest of
their group sat together at a table. They ordered drinks and watched the
comedy show. Jazmyn, however, became nervous because she believed Alfred
was “mad-dogging” her. She thought Alfred was acting aggressively and was
either very intoxicated or mentally ill. Alfred was heckling and making rude
comments to some of the comedians. Alfred’s actions did not go unnoticed as
comedy club security approached the group’s table a couple times.
During the show, Ashley and Jazmyn got up to go to the restroom.
When Ashley exited the restroom, Morris was waiting for her and appeared
angry because he believed Ashley and Jazmyn were having a sexual
encounter in the bathroom. Morris slapped Ashley across the face. He then
walked outside, and Ashley followed him. Jazmyn returned to the table but
could not find Donnie, so she also went outside.
When Jazmyn got outside, she saw Morris and Ashley arguing. Morris
was trying to take Ashley’s purse, and the two were struggling. Morris
pushed Ashley into a wall. After Ashley fell to the ground, Morris grabbed
her purse. While Morris was engaged with Ashley, Alfred was leaning
against a nearby wall. Morris and Alfred started to leave the area with
Ashley’s purse.

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 As Morris and Alfred were leaving, James and Sean were walking
toward them while exiting the mall. As the men approached each other, Sean
said “hello” prompting Morris to respond, “Don’t fucking talk to us.” Sean
apologized.
Morris then pulled out a gun and fired four or five shots at James and
Sean. James was hit in the back of the head, neck, and chest. Sean was
grazed by a bullet on his upper left thigh. Sean administered CPR to James,
who was laying on the ground bleeding. Emergency personnel arrived at the
scene and transported James and Sean to the hospital where James died
from his gunshot wounds.
After the shooting, Morris and Alfred ran to the parking garage and
sped away in Ashley’s car, without paying the required fee for parking in the
mall parking enclosure.
When the shooting began, Jazmyn and Ashley ran back into the club.
Ashley was crying, and Jazmyn was yelling to “lock the front door,” claiming
that she almost got shot. The women left the club before the police arrived.
Because Morris had taken Ashley’s car, the women had to take a rideshare to
get home. Ashley was at her house waiting for a locksmith when Morris
arrived and returned her keys.
The next morning, Morris sent Ashley a text telling her not to answer
her phone if she received any calls from “weird numbers.” Ashley called
Morris to tell him that detectives had contacted one of her friends. In
response, Morris texted her, “Remember your phone is supposed to be lost.”
Ashley responded, “Tad bit too late.”
On the afternoon of June 12, detectives from the San Diego Police
Department went to Ashley’s house to talk to her about the shooting.
Initially, Ashley was hesitant to talk to the detectives and lied about what

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happened on the night in question. Ashley later explained at trial that she
did not tell the truth because she was afraid of retaliation from Morris.
Ashley believed Morris was a member of the O’Farrell Park gang, and the
“street code” for gangs was to keep quiet and not talk to law enforcement.
Despite her fear, Ashley eventually told the detectives the truth about what
happened at the comedy club.
While the detectives were at Ashley’s house, Morris sent her a text that
he was just relaxing. When Ashley replied to Morris that detectives were at
her house, Morris texted, “You already know what to say,” and “You wasn’t
outside when it happened. It’s their job to question you since your friend
called the police.” Morris later sent another text to Ashley imploring her not
to give the detectives “any information” and to find out what the detectives
know.
Ashley allowed the detectives to search her house. Morris had been
staying with Ashley for about a month and kept his belongings in a second
bedroom. During the search, the detectives found clothing consistent with
what Morris was wearing on the night of the shooting. They also recovered a
5.56 millimeter long-arm rifle along with various ammunition. In a pocket of
a jacket hanging in the closet, the detectives found a handgun. Morris’s DNA
was found on both firearms.
Two days after the shooting, Jazmyn identified Morris as the shooter
out of a photographic lineup consisting of six pictures.
At trial, the prosecution called San Diego Police Detective Joseph Brian
Castillo as a gang expert. O’Farrell Park Banksters was one of the street
gangs Castillo monitored. That gang’s primary color was grey, but gang
members also would wear red. Castillo explained that there were rules of the

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gang relating to talking to police or testifying at a trial. The most important
rule was not to cooperate with any law enforcement.
After being shown pictures of Morris’s tattoos, Castillo explained how
each tattoo signified Morris’s involvement in the O’Farrell Park Banksters.
DISCUSSION
I
THE ADMISSION OF GANG EVIDENCE AGAINST MORRIS
A. Morris’s Contentions
At trial, the prosecution offered the testimony of a gang expert,
photographs of Morris’s tattoos, and other photographs that allegedly showed
Morris was a member of the O’Farrell Park Banksters criminal street gang.
Morris argues the trial court committed reversible error by admitting such
evidence, which he claims was inadmissible character evidence. We disagree.
On the record before us, we cannot say the trial court abused its discretion in
admitting the gang evidence.
B. Background
The prosecution brought a motion in limine requesting the court allow
it to produce evidence at trial of Morris’s affiliation with a criminal street
gang. The prosecution argued the evidence was relevant to explain Ashley’s
hesitancy to testify against Morris as well as provide a reason for Ashley’s
initial lies to the detectives when asked about the shooting. Further, the
prosecution maintained that the gang evidence also expounded on why
Ashley was afraid of Morris.
Morris opposed the prosecution’s motion in limine, contending the gang
evidence was more prejudicial than probative and violated his federal and
state due process rights.

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 During oral argument on pretrial motions, the trial court indicated its
inclination “to allow some limited evidence of the gang issue” because it was
probative of the credibility of a key witness. The court also explicitly
considered the interplay between the probative nature of the evidence as
compared to any prejudice to Morris: “I believe it has probative value,
substantial probative value when laid with the prejudice that would exist in
having this come before the jury, but I think it needs to be limited.” In ruling
it would allow limited gang evidence at trial, the court emphasized the
purpose of admitting such evidence: “I know there was some—I think it was
a baseball cap and the color of clothing, but it’s really going towards one of
the key witnesses in this case, and that’s Ashley, and her credibility, and it’s
being admitted with that in mind.”
During trial, Morris renewed his objection to the gang evidence,
including the testimony of the prosecution’s gang expert. The court overruled
the objections, explaining:
“I am going to affirm my previous ruling for the reasons I
previously mentioned. I went through the test of the
probative value, and it is, indeed, relevant to the issues,
especially to the credibility of this particular witness. And
doing the [Evidence Code section] 352 analysis, while it
does—is prejudicial, when balanced with probative value,
the probative value substantially outweighs the prejudicial
effect of allowing it in.”

C. Analysis
When a gang enhancement is not alleged, “evidence of gang
membership is potentially prejudicial and should not be admitted if its
probative value is minimal.” (People v. Hernandez (2004) 33 Cal.4th 1040,
1049.) “ ‘[A]dmission of evidence of a . . . defendant’s gang membership
creates a risk the jury will improperly infer the defendant has a criminal

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disposition and is therefore guilty of the offense charged.’ ” (People v. Brown
(2003) 31 Cal.4th 518, 547 (Brown), quoting People v. Williams (1997) 16
Cal.4th 153, 193.)
Yet, there is no absolute ban to the admission of gang evidence at trial
when there is no gang allegation alleged. Instead, gang evidence, having any
tendency in reason to prove or disprove the truthfulness of a witness’s
testimony, may be considered by a jury. (See Evid. Code, § 780; People v.
Harris (1985) 175 Cal.App.3d 944, 957 (Harris).) Moreover, evidence
weighing on a witness’s credibility includes evidence that the witness is
afraid to testify or is fearful of retaliation. (See People v. Sapp (2003) 31
Cal.4th 240, 301; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588
(Gutierrez).) “It is not necessary to show threats against the witness were
made by the defendant personally, or the witness’s fear of retaliation is
directly linked to the defendant for the evidence to be admissible. [Citation.]”
(Gutierrez, at p. 1588; see People v. Olguin (1994) 31 Cal.App.4th 1355, 1368
(Olguin) [evidence that the witness was threatened by a reference to a gang
was admissible because it went to the witness’s state of mind].)
However, even if gang evidence is relevant, it may be excluded under
Evidence Code section 352. Under that statute, courts should exclude
evidence where “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.” (Evid. Code, § 352.)
Here, the challenged gang evidence was admitted over relevancy and
Evidence Code section 352 objections. We review a trial court’s decision to
admit such evidence for an abuse of discretion. (Brown, supra, 31 Cal.4th at

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p. 547; Olguin, supra, 31 Cal.App.4th at p. 1369.) “The trial court’s ruling
will not be disturbed in the absence of a showing it exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a
miscarriage of justice. [Citation.]” (People v. Avitia (2005) 127 Cal.App.4th
185, 193.) “It is appellant’s burden on appeal to establish an abuse of
discretion and prejudice.” (People v. Albarran (2007) 149 Cal.App.4th 214,
225.)
In the instant matter, Ashley was a key witness who identified Morris
as the shooter. However, her testimony was less than clear and her
credibility was challenged by the defense. For example, Ashley did not report
the shooting to the police officers who went to her house to do a welfare check
the morning after the shooting. She testified that she was “scared to say
anything about it.” At that point, Morris was at her house and Ashley
expressed concern that if she “said something” to the police “and they came in
the house” with Morris there, “it wouldn’t have ended well.”
On the Monday following the shooting, when the detectives interviewed
Ashley about the shooting, she initially said she did not know the identity of
the shooter. During her direct testimony at trial, Ashley explained that she
was afraid to identify Morris as the shooter because she was “by [her]self”
and “when things happen you just keep your mouth shut.” In other words,
Ashley admitted she was afraid of “retaliation.” After being questioned by
the prosecutor about why she was fearful of retaliation, Ashley eventually
explained: “The street code, period, as far as gangs, like things happen and
you don’t say anything.” Nevertheless, at trial, Ashley testified that she saw
Morris pull out a gun after he took her purse.
During cross-examination at trial, Ashley testified that she only told
the detectives that Morris was the shooter after the detectives informed her

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there was a video of the shooting. Further, Ashley admitted that when asked
by the detectives who was the shooter on the night in question, she
responded: “ ‘I feel it, I can’t sit here and say I saw it and lie to your face and
say I saw it because I can’t. That’s my suspicion and what I feel in my
heart.’ ” Morris’s trial counsel also elicited evidence that Ashley told the
defense investigator that she was unsure if Morris shot the gun, that when
she spoke with the police she felt like she saw Morris shoot the gun, but when
she spoke with the defense investigator in January 2019, she did not know
who shot the gun.
On redirect, Ashley testified that she decided to recant to the defense
investigator about the events on the night of the shooting because she “felt
there were things that [she] didn’t know as far as the case on both sides.”
She also admitted that, at the time of the trial, she still had feelings for
Morris and was trying to protect him while testifying. In addition, Ashley
expressed that she remained afraid of Morris. She then testified that Morris
fired the gun on June 10th at Horton Plaza.
However, on recross-examination, Ashley testified that she told the
defense investigator that she did not see Morris shoot the gun. Yet, she
explained that she was not telling the truth to the defense investigator at
that time and was trying to help Morris. Also, Ashley testified that she felt
pressured by the defense investigator as well as the detectives.
Here, it is clear the prosecution relied on Ashley’s testimony to identify
Morris as the shooter. She was a key witness because she was with Morris at
the scene of the crime on the night in question. They were involved in a
romantic relationship at the time and communicated about the shooting.
Nonetheless, Ashley provided inconsistent statements to the police and the
defense investigator. She admitted as much on the witness stand. She told

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detectives she was afraid of Morris and reiterated that she remained afraid of
him at the time of trial. The defense attacked Ashley’s credibility during
cross-examination. Against this backdrop, the limited evidence of Morris’s
gang involvement was probative of Ashley’s credibility, specifically to better
explain why she was hesitant to tell the truth and/or testify. (See Harris,
supra, 175 Cal.App.3d at p. 957 [“[u]nder the facts of this case, evidence of
gang membership was relevant on possible threats to prosecution witnesses,
resulting in obvious bias during testimony”].) The jurors were entitled to
hear evidence that would allow them to evaluate the reasonableness of
Ashley’s fear of Morris. (See ibid.)
Moreover, because the concept of retaliation in gang culture is not
common knowledge to most jurors, we are not troubled that the trial court
allowed the prosecution to offer limited testimony from its gang expert. At
trial, the prosecutor asked Castillo four questions about O’Farrell Park
Banksters gang in general and three questions about snitching and
retaliation in the gang culture. The prosecutor also showed Castillo one
photograph in which he identified Morris and four photographs of Morris’s
gang tattoos. The prosecutor did not ask Castillo about any significant
history of the gang, the gang’s primary activities, or Morris’s status as a
member of the O’Farrell Park Banksters. Indeed, Castillo’s direct testimony
was fairly succinct, consisting of only six pages in the reporter’s transcript.
Nevertheless, Morris asserts the gang evidence was cumulative of other
evidence showing Ashley was afraid of him. To this end, Morris points out
there was evidence that: on the night of the shooting, he hit Ashley in the
face, pushed her to the ground, and took her purse; he previously threatened
Ashley by telling her the only way she would be able to leave him was “in a
body bag”; he was controlling of Ashley to the point she had no other friends;

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Ashley was so afraid of Morris that she hid in the closet when she called her
friend; and Ashley relocated after talking to the detectives. However, none of
this evidence provides context for Ashley’s trial testimony where she
discussed being afraid of Morris retaliating against her because she did not
adhere to the “street code” of not talking to the police. Instead, it was the
limited gang evidence that best explained Ashley’s fear of retaliation. (Cf.
People v. Sapp, supra, 31 Cal.4th at p. 301; Gutierrez, supra, 23 Cal.App.4th
at pp. 1587-1588; Olguin, supra, 31 Cal.App.4th at p. 1368; Harris, supra,
175 Cal.App.3d at p. 957.)
Moreover, Morris’s reliance on the other evidence he claims established
Ashley’s fear of him is somewhat overstated. For example, Ashley testified
that before the night of the shooting, Morris had never been physically
violent with her. Ashley also testified that she had never tried to leave
Morris or break up with him. On this record, we cannot say that the limited
gang evidence admitted at trial was cumulative of other evidence that Ashley
was afraid of Morris.
Additionally, we are not persuaded by Morris’s claim that the limited
gang evidence was unduly prejudicial. As we discuss ante, under Evidence
Code section 352, the trial court has discretion to exclude evidence, among
other reasons, “if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue
prejudice.” (Evid. Code, § 352; see People v. Williams, supra,16 Cal.4th at
p. 193.) “ ‘The prejudice which exclusion of evidence under Evidence Code
section 352 is designed to avoid is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence.’ [Citations.]
‘Rather, the statute uses the word in its etymological sense of “prejudging” a
person or cause on the basis of extraneous factors. [Citation.]’ [Citation.]”

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(People v. Zapien (1993) 4 Cal.4th 929, 958.) “In other words, evidence should
be excluded as unduly prejudicial when it is of such nature as to inflame the
emotions of the jury, motivating them to use the information, not to logically
evaluate the point upon which it is relevant, but to reward or punish one side
because of the jurors’ emotional reaction. In such a circumstance, the
evidence is unduly prejudicial because of the substantial likelihood the jury
will use it for an illegitimate purpose.’ (Vorse v. Sarasy (1997) 53 Cal.App.4th
998, 1008-1009.)” (People v. Doolin (2009) 45 Cal.4th 390, 439.)
Here, the trial court carefully balanced the probative value of the gang
evidence with its prejudicial impact, specifically finding “the probative value
substantially outweighs the prejudicial effect of allowing it in.” And although
the expert witness occasionally and briefly touched upon inflammatory
subjects, any prejudice resulting from this testimony was far outweighed by

its probative value going to Ashley’s credibility.2 Moreover, the court limited
the type of gang evidence admitted. The trial court did not abuse its
discretion in admitting this evidence.
Further, our analysis does not change when we consider People v.
Cardenas (1982) 31 Cal.3d 897 (Cardenas) as Morris urges us to do. In that
case, the issue was whether the appellant committed the crime, and the
testimony was “sharply conflicting.” (Id. at p. 901.) The identification
testimony contained many discrepancies, and the appellant had an alibi. (Id.
at pp. 902-903.) The prosecutor attacked the credibility of defense witnesses
by eliciting testimony that the appellant and the witnesses were all members
of the El Monte Flores gang. (Id. at p. 903.) The appellate court concluded

2 For example, Castillo testified that he had seen gang members retaliate
against individuals who cooperated with law enforcement or testified in court
by verbally reprimanding, physically beating up, or even killing such
individuals.
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that the trial court abused its discretion by allowing the introduction of the
appellant’s gang affiliation. (Id. at p. 904.) The court determined that the
evidence was cumulative and of minimal probative value in that it was
offered only to establish the witnesses’ bias, when other evidence already
showed the witnesses were the appellant’s friends and fellow boys club
members. (Ibid.) On the other hand, there was a substantial danger of
undue prejudice in the form of the jury inferring the appellant had a criminal
disposition because the gang committed crimes and he was a member. (Id. at
p. 905.)
Unlike in Cardenas, here, the evidence was limited and highly relevant
for a specific purpose—to explain Ashley’s inconsistent statements and
hesitancy to testify against Morris. It was not cumulative of other evidence,
and it was very limited in scope. It was brief and connected solely to Ashley’s
fear in identifying Morris as the shooter. Moreover, the trial court instructed
the jury that certain evidence was admitted for a limited purpose, and to only
consider that evidence for that purpose and no other. Specifically, the trial
court said that gang evidence, consisting of testimony from a detective and
others, was admitted for the limited purpose of assessing the credibility of
Ashley and to consider this evidence for that purpose and for no other. The
jury was also instructed on how to evaluate expert testimony and to
disregard any part of an opinion found to be unsupported by the evidence.
We assume the jury followed these instructions. (See People v. Mooc (2001)
26 Cal.4th 1216, 1234.)
In short, a court’s ruling under Evidence Code section 352 “ ‘ “must not
be disturbed on appeal except on a showing that the court exercised its
discretion in an arbitrary, capricious or patently absurd manner that resulted
in a manifest miscarriage of justice. [Citations.]” ’ ” (People v. Williams

15
(2008) 43 Cal.4th 584, 634-635.) In the instant matter, the court engaged in
a careful, detailed analysis of the proffered evidence and admitted only the
evidence that avoided undue consumption of time and was unduly
prejudicial. The court did not abuse its discretion.
II
EVIDENCE THAT MORRIS WOULD BRANDISH GUNS
A. Morris’s Contentions
Morris contends the trial court abused its discretion in admitting
evidence that he brandished guns when he was angry. Specifically, he
asserts such evidence was inadmissible and should have been excluded under
Evidence Code sections 352 and 1101, subdivision (a).
B. Background
As part of the prosecution’s motion in limine to admit limited gang
evidence at trial, the prosecution also argued that the court should admit
evidence of Morris’s prior incidents of gun use. To this end, within its motion,
the prosecution set forth four instances in which Morris either pulled out his
gun or shot at cars. Morris opposed the motion in limine, arguing that
evidence of his prior gun use was unduly prejudicial and cumulative of other
evidence to the extent the prosecution was offering the evidence to explain
why Ashley was afraid of Morris.
During oral argument on the prosecution’s motion to admit the prior
incidences of gun use, the trial court indicated that it believed such evidence
was inadmissible character evidence under Evidence Code section 1101,
subdivision (a). However, the court then discussed the possibility of
admitting a “sanitized . . . version” of the gun evidence because it was
probative of Ashley’s fear of Morris. The court explained:
“So would have an individual who is expected to testify,
that’s Ashley, who it’s my understanding said she—well,

16
 it’s already been brought up that she did not—she’s been
inconsistent with what she said occurred, and initially not
even [ac]knowledging that it occurred. The offer by the
People is that she is fearful. I do believe that a more
sanitized, if you will, version of some of this should be
brought up to explain her fearfulness as the testimony
plays out as the People suspect it will. I also want to make
sure it doesn’t infringe on [Evidence Code section] 1101(a).

“My thought was if it is true that she is fearful of honestly
making a statement about who, in her mind, was the
shooter because she’s afraid, and why she was afraid is
because the defendant is known to carry a gun and has
pulled the gun out in the past, I believe that would be
appropriate. The next step where he’s been known to shoot
people when he’s upset goes beyond what I believe would be
appropriate unless the door is open. I don’t know if anyone
wants to argue that one.”

In response, the prosecutor suggested it was premature to argue the
issue further before seeing how Ashley would testify at trial. Morris’s trial
counsel commented that, in considering the way in which the court had
sanitized the evidence, he did not believe an Evidence Code section 402
hearing was necessary. Nevertheless, he stated he still objected to the
evidence.
At trial, the gun evidence was part of the following testimony from
Ashley:
“Q Now, you knew the defendant had guns; is that correct?

“A Yes.

“Q He had a rifle; is that correct?

“A Yes.

“Q And he had a handgun; is that correct?

“A Yes.

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 “Q Did you see him take out guns when he got angry?

“A Yes.

“Q At times did you believe the defendant was controlling
of you?

“[Morris’s trial counsel]: Objection. Relevance 352.

“THE COURT: Overruled.

“THE WITNESS: Yes.”

C. Analysis
Evidence Code section 1101, subdivision (a) “ ‘expressly prohibits the
use of an uncharged offense if the only theory of relevance is that the accused
has a propensity (or disposition) to commit the crime charged and that this
propensity is circumstantial proof that the accused behaved accordingly on
the occasion of the charged offense.’ ” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 406.) Although evidence of the defendant’s
commission of other crimes, civil wrongs or bad acts is inadmissible to prove
the defendant’s conduct on a specified occasion, such evidence can be used to
support or attack a witness’s credibility. (Evid. Code, § 1101, subd. (c);
People v. Kennedy (2005) 36 Cal.4th 595, 620 [limitations on the admissibility
of evidence of specific instances of misconduct “do not apply to evidence
offered to support or attack the credibility of a witness”]; People v. Hawthorne
(2009) 46 Cal.4th 67, 99 [“Unless precluded by statute, any evidence is
admissible to attack the credibility of a witness if it has a tendency in reason
to disprove the truthfulness of the witness’s testimony”].) Such evidence may
also be admitted to prove a material fact in dispute such as motive, intent,
preparation, plan, knowledge, or the absence of mistake or accident. (Evid.
Code, § 1101, subd. (b); People v. Cage (2015) 62 Cal.4th 256, 273; People v.
Jones (2013) 57 Cal.4th 899, 930.)
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 In the instant action, much like in considering the limited gang
evidence, the trial court engaged in careful evaluation of the admissibility of
prior instances of Morris’s use of guns. As such, the court ruled that evidence
of Morris’s prior use of guns was not admissible under Evidence Code
section 1101, subdivision (a). This evidence included Morris threatening
others with guns and shooting at cars. However, the court determined that
evidence that Ashley was aware that Morris carried a gun and had pulled a
gun out in the past was relevant as to Ashley’s credibility. Alternatively
stated, such evidence was probative of Ashley’s fear of Morris and would help
explain why she provided inconsistent statements to the detectives and the
defense investigator.
Although the connection between Ashley’s testimony about her
knowledge of Morris’s use of guns and her fear of Morris could have been
better developed at trial, we conclude the trial court did not abuse its
discretion in admitting the limited gun evidence. After admitting that she
knew Morris had guns and he would pull them out when he was angry,
Ashley testified that she was afraid of Morris and was worried about Morris
getting upset with her. For example, Ashley testified about her fear of Morris
becoming angry with her if she called her friend:
“Q: What were you afraid of?

“A: I was afraid of something happening to me. He’d
[Morris] gotten angry before, you know, so —

“Q: Okay. So you were afraid of him?

“A: Yes.

“Q: You didn’t want him to get angry?

[objection overruled]

19
 “A: I didn’t want him to get upset with me.”

Moreover, even if we assume the trial court abused its discretion by
admitting the gun evidence, we would find such error harmless. It is well-
settled that the standard for admitting improper character evidence is to be
decided under the standard articulated in People v. Watson (1956) 46 Cal.2d
818, 836 (Watson). (People v. Malone (1988) 47 Cal.3d 1, 22 [error in
admitting improper character evidence tested by Watson harmless error
standard]; People v. Mullens (2004) 119 Cal.App.4th 648, 658-659 [error in
admission or exclusion of evidence following exercise of discretion under Evid.
Code, § 352 in considering whether to admit propensity evidence under Evid.
Code, § 1108 reviewed under Watson harmless error test].) Under this
familiar standard, we ask whether it is reasonably likely the jury would have
returned a more favorable verdict had the trial court excluded the evidence.
(Watson, at p. 836.)
The evidence against Morris was strong. Morris was seen fighting with
Ashley by the restroom in the comedy club and then outside where he
proceeded to push her down and steal her purse. Eyewitness identification of
the clothing worn by the shooter matched that worn by Morris. Specifically,
all of the witnesses stated that the shooter was wearing a red shirt and a red
baseball cap. Two employees of the comedy club said that the shooter was
the same person who was arguing with and pushed down Ashley. Sean
identified Morris as the shooter at trial, stating he was haunted by his face
every day. Ashley’s identification of Morris as the shooter was corroborated
by her cousin, who testified that the day after the shooting, Ashley told her
that Morris had shot someone.
After the shooting, Morris and his brother fled from the mall, exiting
the parking structure without paying. Morris tried to dissuade Ashley from

20
telling the detectives anything about the shooting. In addition, Morris
changed his appearance from the date of the shooting to the date of trial. All
these actions showed his consciousness of guilt. (See People v. Pitts (1990)
223 Cal.App.3d 606, 877 [“Flight is relevant because it may demonstrate
consciousness of guilt”]; People v. Randle (1992) 8 Cal.App.4th 1023, 1036
[evidence of change of appearance can be relevant to show a defendant’s
consciousness of guilt]; CALCRIM No. 371.)
In addition, with respect to the limited evidence of Morris displaying a
gun when angry, any error was not prejudicial because the jury already
heard Morris owned several guns and he asked whether security at the
comedy club patted down the customers for weapons. Also, the question
about whether Ashley had seen Morris pull out a gun when angry was a
single question in Ashley’s lengthy testimony. In light of the strong evidence
against Morris, we cannot say this one question constituted reversible,
prejudicial error.
III
THE EXCLUSION OF EVIDENCE THAT ALFRED WAS A GANG
MEMBER

At trial, Morris’s primary defense theory was that his brother Alfred
was the shooter. During the cross-examination of the prosecution’s gang
expert, Morris’s trial counsel asked Castillo if Alfred was a gang member.
The prosecutor objected, and the parties discussed the issue with the trial
court at a sidebar. The prosecutor argued that whether Alfred was a gang
member was irrelevant and beyond the scope of her direct examination of
Castillo. Defense counsel countered that the gang evidence was relevant to
show that Ashley was afraid of Alfred and thus would not testify that he was
the shooter. The prosecutor then pointed out that there was no evidence that
Ashley was scared of Alfred. The court agreed and concluded it would not
21
allow this line of questioning to proceed. It observed that defense counsel’s
questioning of Castillo was beyond the scope of his direct testimony, and the
court did not “recall Ashley talking about fear or concerns about Alfred.”
Here, Morris argues the court abused its discretion in prohibiting
evidence at trial that Alfred was a gang member. To this end, he emphasizes
that Ashley testified that she feared retaliation based on the “street code”
that a person does not talk to the police or testify in court regarding what he
or she saw. Morris insists that Ashley’s apprehension of retaliation would
extend to Alfred because he also was a gang member. Morris’s argument
overlooks the difference between Ashley’s testimony about him compared to
her testimony about Alfred.
Ashley told alternative versions of what she observed on the night of
the shooting. After initially denying that she saw Morris shoot the victim,
she told the detectives that Morris was the shooter. However, she later told
the defense investigator that she did not see Morris shoot the gun outside the
comedy club. Ashley also testified that she was afraid of Morris and was
concerned what could happened to her if she testified against Morris. The
court therefore allowed the prosecution to present evidence that Morris was a
gang member to better explain why Ashley was afraid of him.
Morris essentially asserts that because such evidence was admitted as
to him, it should have been admitted as to Alfred. In other words, the
evidence was relevant to show that Ashley was afraid of Alfred and explain
why she did not say Alfred was the shooter. We disagree.
Ashley testified at trial that she was not sure if Alfred was a gang
member. She also testified that she did not believe that she told detectives
that Alfred was in a gang. Further, Ashley did not testify that she was afraid
of Alfred. Nor did she change her testimony about Alfred’s involvement in

22
the shooting. Additionally, this was not a gang case. There were no gang
allegations. And the prosecution did not ask Castillo about Alfred or his
involvement in any gang. In short, we agree with the trial court that
evidence that Alfred was a gang member was beyond the scope of the
prosecution’s direct examination of Castillo and had no relevancy as to
Ashley’s credibility. The court did not abuse its discretion in excluding the

testimony.3
IV
JURY INSTRUCTIONS
A. Morris’s Contentions
Morris contends the trial court prejudicially erred when it declined to
provide the jury with an instruction on the “logical nexus element” of felony
murder. We disagree.
B. Background
During the discussion of jury instructions, defense counsel asked the
trial court to include a bracketed portion of CALCRIM No. 540A [Felony
Murder: First Degree—Defendant Allegedly Committed Fatal Act], which
clarified the logical nexus between the felony and the homicidal act. The
bracketed portion read: “There must be a logical connection between the
cause of death and the [felony]. The connection between the cause of death
and the [felony] must involve more than just their occurrence at the same
time and place.” The prosecutor maintained that the bracketed portion did

3 The People argue the trial court was well within its discretion to
exclude evidence that Alfred was a gang member under Evidence Code
section 352. Although we do not disagree that a court would correctly
exercise its discretion to exclude this gang evidence under Evidence Code
section 352, there is no indication that the court engaged in any analysis or
balancing under that section when it sustained the prosecution’s objection.
As such, we eschew any discussion of Evidence Code section 352 on this issue.
23
not apply because Morris’s crimes were a continuous act. The trial court then
observed that the cases that discuss the need for an instruction on a logical
nexus involve multiple perpetrators and the instruction applies to the
nonshooter or nonkiller. The court added that because Morris was the only
alleged perpetrator, the theory of felony murder was sufficiently covered by
CALCRIM No. 540A.
Defense counsel responded that the bracketed portion should be given
because the jury could determine that although Morris had committed a
robbery and not yet reached a place of safety, he committed the shooting
because he had lost his temper and not to effectuate his escape. The trial
court responded that it did not plan to give the bracketed portion, but if
Morris’s counsel could find case law that discussed it in the context similar to
the instant action, i.e. a single perpetrator, the court would reconsider its
ruling. There is no indication in the record that defense counsel provided the
requested authority.
The trial court subsequently instructed the jurors on felony murder
under CALCRIM No. 540A as follows:
“The defendant is charged in Count 1 with murder, under a
theory of felony murder.

“To prove that the defendant is guilty of first degree
murder under this theory, the People must prove that:

“1. The defendant committed a Robbery;

“2. The defendant intended to commit Robbery;

AND

“3. While committing Robbery the defendant caused the
death of another person.

“A person may be guilty of felony murder even if the killing
was unintentional, accidental, or negligent.

24
 “To decide whether the defendant committed Robbery,
please refer to the separate instructions that I have given
you on that crime. You must apply those instructions when
you decide whether the People have proved first degree
murder under a theory of felony murder.

“The crime of Robbery continues until a defendant has
reached a place of temporary safety.

“It is not required that the person die immediately, as long
as the act causing death occurred while the defendant was
committing the felony.

“It is not required that the person killed be the intended
victim of the felony.”

C. Analysis
Under the felony-murder rule, a killing “committed in the perpetration
of, or attempt to perpetrate,” a robbery is first degree murder. (§ 189.) The
statutory phrase that the killing be “committed in the perpetration of” the
felony does not require “a strict causal or temporal relationship between the
felony and the murder . . .; what is required is proof beyond a reasonable
doubt that the felony and murder were part of one continuous transaction.”
(People v. Young (2005) 34 Cal.4th 1149, 1175; see People v. Chavez (1951) 37
Cal.2d 656, 669 [“The law of this state has never required proof of a strict
causal relationship between the felony and the homicide.”].) Moreover, the
felony-murder rule holds the defendant strictly responsible for a killing
committed during certain enumerated felonies, regardless of whether the
killing was intentional, negligent, or accidental. (People v. Washington (1965)
62 Cal.2d 777, 781.) The defendant need only have the specific intent to
commit the underlying felony. (People v. Cavitt (2004) 33 Cal.4th 187, 197
(Cavitt).) Thus, “first degree felony murder encompasses a far wider range of
individual culpability than deliberate and premeditated murder. It includes

25
not only the latter, but also a variety of unintended homicides . . .; it
embraces both calculated conduct and acts committed in panic or rage, or
under the dominion of mental illness, drugs, or alcohol; and it condemns alike
consequences that are highly probable, conceivably possible, or wholly
unforeseeable.” (People v. Dillon (1983) 34 Cal.3d 441, 477.)
In accordance with these principles, the court instructed the jury on the
required elements of first degree felony murder (CALCRIM No. 540A).
However, Morris argues this instruction was insufficient and the court should
have instructed the jury on the requirement of a logical nexus between the
felony and the act causing death. The People counter that the logical nexus
requirement only applies to felony-murder cases when a coparticipant in the
felony, not the defendant, has allegedly committed the fatal act. (People v.
Huynh (2012) 212 Cal.App.4th 285, 310.) On the record before us, we need
not resolve this dispute because, even if we assume the trial court erred in
failing to instruct the jury regarding the logical nexus requirement, we would
determine such an error was not prejudicial.
State law error in connection with a jury instruction is subject to the
harmless error test set forth in Watson, supra, 46 Cal.2d 818. (See People v.
Breverman (1998) 19 Cal.4th 142, 174-176.) In Watson, the court explained
that reversal is required “only when the court, ‘after an examination of the
entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably
probably that a result more favorable to the appealing party would have been
reached in the absence of the error.” (Watson, at p. 836.)
The felony-murder rule does not require “a killing to advance or
facilitate the felony, so long as some logical nexus existed between the two.”
(Cavitt, supra, 33 Cal.4th at p. 198.) In the instant action, the evidence
overwhelmingly establishes a logical nexus between the robbery and the

26
killing of James. Indeed, James was shot during the commission of the
robbery. As the jury was instructed, a robbery is a continuing offense that is
not complete until the perpetrator reaches a place of temporary safety.
(People v. Harris (1994) 9 Cal.4th 407, 421.) Here, Morris was near the place
in which he took Ashley’s purse after pushing her to the ground. He was in
the process of leaving that area when he encountered the two victims and
shot them. There is no indication in the record that Morris had reached a
place of temporary safety, and he does not argue that he did so here. Under
these facts, we conclude there was not a reasonable probability that a result
more favorable to Morris would have been reached had the jury been
instructed on the concept of logical nexus.
V
ATTEMPTED MURDER
A. Morris’s Contentions
Morris also challenges his conviction for attempted murder. He argues
substantial evidence does not support his conviction, a jury instruction on the
“kill zone” was not warranted by the evidence proffered at trial, and the “kill
zone” jury instruction that was provided to the jury was legally erroneous.
We address the jury instruction issues first.
B. Kill Zone Jury Instruction
The trial court instructed the jury as follows as part of its instruction
on the crime of attempted murder:
“A person may intend to kill a specific victim or victims
and, at the same time, intend to kill everyone in a
particular zone of harm or, quote, ‘kill zone,’ closed quotes.
In order to convict the defendant of the attempted murder
of Sean . . . , the People must prove that the defendant not
only intended to kill James . . . , but also either intended to
kill Sean . . . or intended to kill everyone within the kill
zone.

27
 “If you have a reasonable doubt whether the defendant
intended to kill Sean . . . or intended to kill James . . . by
killing everyone in the kill zone, then you must find the
defendant not guilty of the attempted murder of Sean . . . .
If you find the defendant guilty of attempted murder, you
must then decide whether the People have proved the
additional allegation that the attempted murder was done
willfully and with deliberation and premeditation.”

Morris contends it was error for the trial court to give this instruction
because the evidence was insufficient to support application of the kill zone
theory of attempted murder. The People argue that Morris waived any
challenge to this instruction by failing to object at trial. Although Morris did
not object, we consider the issue on the merits because the alleged
instructional error on intent affects Morris’s substantial rights. (People v.
Lewis (2009) 46 Cal.4th 1255, 1294, fn. 28.)
“To prove the crime of attempted murder, the prosecution must
establish ‘the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.’ [Citation.]”
(People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).) Because direct
evidence of intent to kill is rare, that intent must ordinarily be inferred from
the actions and statements of the defendant and the circumstances
surrounding the crime. (Ibid.) In People v. Bland (2002) 28 Cal.4th 313, the
California Supreme Court endorsed the concept of a concurrent intent to kill
as a permissible theory for establishing the specific intent required for
attempted murder. (Canizales, at p. 602.) The court in Bland applied what
is commonly referred to as the “kill zone” theory of attempted murder. Under
that theory, the prosecution can attempt to show either that the defendant’s
intent to kill one or more alleged victims arose independently of his actions
toward any other victim, or that the intent to kill an untargeted victim rose
concurrently with the intent to kill a primary target. (Canizales, at p. 603.)
28
 In Canizales, supra, 7 Cal.5th 591, our high court concluded that the
kill zone theory may be applied only when the following two-part test is
satisfied: “(1) the circumstances of the defendant’s attack on a primary
target, including the type and extent of force the defendant used, are such
that the only reasonable inference is that the defendant intended to create a
zone of fatal harm—that is, an area in which the defendant intended to kill
everyone present to ensure the primary target’s death—around the primary
target and (2) the alleged attempted murder victim who was not the primary
target was located within that zone of harm. Taken together, such evidence
will support a finding that the defendant harbored the requisite specific
intent to kill both the primary target and everyone within the zone of fatal
harm.” (Id. at p. 607.)
The court in Canizales determined there was insufficient evidence in
that case that the defendants intended to create a zone of fatal harm, and it
was error to instruct the jury on the kill zone theory. (Canizales, supra, 7
Cal.5th at pp. 611-612.) The evidence presented at trial in Canizales showed
that the shooter fired five bullets from a nine-millimeter handgun at a
distance of either 100 or 160 feet away. The attack occurred at a block party
on a wide city street, not in an alleyway, cul-de-sac, or some other area or
structure from which victims would have limited means of escape. Neither
the primary target nor the other alleged victim was struck by any bullet. (Id.
at p. 611.)
The instant action is factually distinguishable from Canizales. Here,
the evidence in this case showed that Morris fired four or five shots into a
targeted area. The victims were walking side-by-side and their freedom of
movement was constrained because they were in a partially closed corridor
on an upper floor at the mall. Simply put, the victims did not have a

29
meaningful escape route. They were all but trapped at the mercy of Morris.
In fact, when Morris began shooting, the victims were both about 10 feet
away from Morris. Sean testified that he could feel “air” as Morris was
shooting, and he felt a few shots go toward his chest and then was hit by a
bullet in his leg. James, the alleged primary target who was next to Sean,
was shot three times. Thus, both victims were struck with a bullet.
Although we determine the instant matter is distinguishable from
Canizales and possesses certain characteristics we would expect to see in a
kill zone case (see, e.g., People v. Winfield (2021) 59 Cal.App.5th 496, 517-519
(Winfield)), we note what is lacking in the record is any reason for identifying
James as the primary victim. The kill zone theory requires that there be a
primary victim who is the defendant’s principal target, and the inquiry is
whether the defendant intended to kill everyone in the “zone” to achieve that
primary object. (See Canizales, supra, 7 Cal.5th at p. 603; Winfield, at
p. 516.) In the typical kill zone case, there would be some basis for
determining who was the primary victim.
For example, in Winfield, the primary victim had numerous
altercations with one of the defendant’s as well as that defendant’s sister.
(Winfield, supra, 59 Cal.App.5th at p. 504-505.) After one altercation, the
defendants waited for the victim to walk into a courtyard and then opened
fire with semi-automatic weapons. (Id. at p. 505.) The primary victim was
hit and fell on top of another individual, who was shot in the leg while
standing near the primary victim. One of the defendants then walked over to
the primary victim, placed his gun to the primary victim’s head, and pulled
the trigger. (Ibid.) The primary victim was shot ten times while the other

30
individual was shot only once. (Id. at p. 506.) And one of the defendants told
the individual who was shot once that he had not intended to shoot him.
(Ibid.)
Although Winfield presents rather severe facts establishing the identity
of the primary victim, in the instant action, there is no explanation why
James should be considered Morris’s primary victim. Before he was shot,
James had no interaction with Morris except for walking by him as Morris
was leaving the scene after taking Ashley’s purse. Indeed, if there was any
reason to select a primary victim, it seems most likely that Sean would have
been the candidate because he was the one who spoke to Morris, and Morris
verbally interacted with him. Thus, it appears that James was assumed to be
the primary target because he was the victim who was killed. Yet, this fact
alone offers no reason why Morris intended to kill James and not Sean by
firing multiple shots into the “kill zone.”
Moreover, the prosecution’s theory at trial appeared to be that Morris
shot at James and Sean as he was fleeing from the robbery to ensure that no
one could identify him. In other words, this case was presented to the jury
more as a direct intent attempt to kill Sean than a kill zone case.
Considering the prosecution’s theory of the case and the absence of any
explanation why James was the primary victim, we determine the evidence
here did not warrant a jury instruction regarding the kill zone.
In addition to our conclusion that the kill zone instruction was not
warranted under the facts of the instant matter, the People conceded at oral
argument that the kill zone instruction that was provided to the jury was

31
legally erroneous under Canizales, supra, 7 Cal.5th 591.4 For purposes of
our analysis here, we will accept the People’s concession.
C. The Effect of the Erroneous Jury Instruction and Substantial Evidence
Before we consider the effect of the erroneous kill zone instruction, we
analyze Morris’s claim that substantial evidence does not support his
conviction for attempted murder. Because we conclude the evidence does not
support the giving of a kill zone jury instruction, we focus on Morris’s
argument that substantial evidence does not support his conviction for
attempted murder under a direct intent theory.
We review a sufficiency of the evidence claim under the familiar and
deferential substantial evidence standard of review. (See People v. Hicks
(1982) 128 Cal.App.3d 423, 429.) Substantial evidence is evidence that is
“reasonable, credible, and of solid value.” (People v. Rodriguez (1999) 20
Cal.4th 1, 11.) In reviewing for substantial evidence, we presume in support
of the judgment the existence of every fact the trier could reasonably deduce
from the evidence. (See People v. Lee (2011) 51 Cal.4th 620, 632.) “Conflicts
and even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.”
(People v. Maury (2003) 30 Cal.4th 342, 403.)
“When a jury’s verdict is attacked on the ground that there is no
substantial evidence to sustain it, the power of an appellate court begins and
ends with the determination as to whether, on the entire record, there is any

4 In the respondents’ brief, the People argued that the kill zone
instruction provided to the jury was proper. However, they changed their
position at oral argument.
32
substantial evidence, contradicted or uncontradicted, which will support it,
and when two or more inferences can reasonably be deduced from the facts, a
reviewing court is without power to substitute its deductions for those of the
jury. It is of no consequence that the jury believing other evidence, or
drawing different inferences, might have reached a contrary conclusion.”
(People v. Brown (1984) 150 Cal.App.3d 968, 970, italics omitted.) Whether
the evidence presented at trial is direct or circumstantial, the relevant
inquiry on appeal remains whether any reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt. (See People v.
Manibusan (2013) 58 Cal.4th 40, 92; Jackson v. Virginia (1979) 443 U.S. 307,
319.) Moreover, unless the testimony is physically impossible or inherently
improbable, testimony of a single witness is sufficient to support a conviction.
(See People v. Dominguez (2010) 180 Cal.App.4th 1351, 1356.)
To convict a defendant of attempted murder under the direct intent
theory, the prosecution must prove “the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the intended
killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) Here, a reasonable jury
could reach the conclusion that Morris specifically intended to kill Sean as
well as James. Sean initiated contact with Morris when the two made eye
contact, and Sean said hello as the men were walking by each other. Morris
responded aggressively to Sean, telling him “don’t fucking talk to us,” before
taking out the gun and shooting. Unbeknownst to Sean, Morris was trying to
leave the scene after taking Ashley’s purse. Thus, the jury could reasonably
infer that Morris wanted to eliminate anyone who could later identify him,
including Sean.
In addition, Morris’s use of a .38 or .357 revolver, which he pointed at
James and Sean at close range and fired it about four or five times evidenced

33
his intent to kill. Sean, who was closer to the storefronts, described feeling
“air” as Morris was shooting and felt like a few shots went past his chest
area. Sean, who was visibly shaken up after the shooting, as seen in the
video footage, told an officer that he was hit, but he “moved out of the way.”
Moreover, the fact that only one bullet made contact with Sean’s leg does not
suggest Morris was not trying to kill him. For these reasons, substantial
evidence supports the jury’s finding that Morris intended to kill Sean when
he fired his gun at him.
Based on the foregoing analysis, there was sufficient evidence to
support Morris’s attempted murder conviction without a kill zone instruction.
Indeed, this may be the theory under which the jury convicted Morris.
However, when both a correct and an incorrect instruction have been given,
to determine whether the instructional error requires reversal, we apply
People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat).
In Aledamat, the defendant was convicted of assault with a deadly
weapon after he used a box cutter by thrusting the blade at another man.
(Aledamat, supra, 8 Cal.5th at p. 4.) The trial court instructed the jury with
CALCRIM No. 875, which defined a deadly weapon as one that is inherently
deadly or used in such a way that it is capable of causing and likely to cause
death or great bodily injury. (Aledamat, at p. 4.) Our Supreme Court held
that “[b]ecause a knife can be, and usually is, used for innocent purposes, it is
not among the few objects that are inherently deadly weapons.” (Id. at p. 6.)
Thus, the high court noted that the jurors were given both correct and
incorrect alternative instructions; they were told that a weapon “could be
either inherently deadly or deadly in the way defendant used it.” (Ibid.) The
question before the court therefore was whether the error was prejudicial in
circumstances where there was nothing in the record to show which theory

34
the jury employed in finding the defendant guilty, but there was plenty of
evidence to convict him of use of the box cutter in a deadly manner. (Id. at
pp. 13-15.)
The court first analyzed whether the erroneous instruction was
“factually inadequate” or “legally inadequate.” (Aledamat, supra, 8 Cal.5th at
p. 7.) A “ ‘ “factually inadequate theory” ’ ” is one that is “incorrect only
because the evidence does not support it.” (Ibid., citing People v. Guiton
(1993) 4 Cal.4th 1116, 1128.) A “ ‘ “legally inadequate theory” ’ ” is one
“incorrect because it is contrary to law.” (Aledamat, at p. 7.) The court
determined the inadequacy was legal because prior case law had established
that a box cutter, designed for a utilitarian purpose, is not, as a matter of
law, an inherently deadly weapon. (Id. at p. 6.)
In assessing prejudice, our high court considered the likelihood that the
jurors would have applied the erroneous instruction, not simply the strength
of the evidence to support a guilty verdict using the correct instruction.
(Aledamat, supra, 8 Cal.5th at pp. 13-15.) This focus on the impact of the
erroneous instruction rather than the strength of the evidence of guilt was
central to the court’s reasoning on prejudice in Aledamat. In other words,
this is not the type of error that can be rendered harmless by “overwhelming”
evidence of guilt alone. Instead, under Aledamat, we “must reverse the
conviction unless, after examining the entire cause, including the evidence,
and considering all relevant circumstances, we determine the error was
harmless beyond a reasonable doubt.” (Id. at p. 3; see id. at p. 13.)
Therefore, “the question is not whether we think it clear beyond a reasonable
doubt that the defendant[ ] [was] actually guilty of . . . attempted murder[ ]
based on the valid theory, but whether we can say, beyond a reasonable
doubt, the jury’s actual verdicts were not tainted by the inaccurate jury

35
instruction. We focus on the likelihood that the jury relied on the kill zone
instruction in reaching its verdict[ ], not simply the likelihood of [Morris’s]
guilt under a legally correct theory.” (People v. Thompkins (2020) 50
Cal.App.5th 365, 399 (Thompkins).)
Here, the People contend any kill zone instructional error was harmless
beyond a reasonable doubt. To this end, they point out that “there was
substantial evidence that [Morris] specifically intended to kill everyone in his
path as he was fleeing with Ashley N.’s purse, and that included Sean R.”
Yet, in making this argument, the People do not explain why it is clear, on
the record before us, that no juror found Morris guilty under the kill zone
theory. (See Thompkins, supra, 50 Cal.App.5th at p. 399; Aledamat, supra, 8
Cal.5th at pp. 13-15.) Moreover, the People all but ignore the emphasis the
prosecutor placed on the kill zone in arguing to the jury that Morris was
guilty of attempted murder. The prosecutor explained:
“Attempt[ed] murder, Count 2. This the crime against
Sean . . . . [Morris] took one step and it was ineffective.
Killed a human being, he intended to the kill, we went
through that, I’m not going to go through that again, the
intent to kill. How do we know that? By the defendant’s
actions in this case. I do want to talk about the kill zone.

“The evidence shows you in this case, and the testimony,
that it would be unreasonable to think, ‘Oh, I just want to
kill James . . . and not Sean . . . .’ No. He intended to kill
everyone in that kill zone. Those two people, when he fired
that gun at least four times, that intended to kill everyone
in that kill zone.”

The People maintain that the prosecutor “accurately described the kill
zone theory” and argued that Morris had the intent to kill, but their
contention misses the mark. By referring to the kill zone theory and
explaining to the jurors that they could convict Morris of attempted murder

36
under that theory, the prosecutor was inviting the jury to find Morris guilty
using a legally erroneous jury instruction. And, on the record before us, we
cannot determine, beyond a reasonable doubt, that at least one juror did not
convict Morris under the kill zone theory. As such, we must reverse Morris’s
attempted murder conviction. (See Thompkins, supra, 50 Cal.App.5th at
pp. 400-401.)
VI
THE ADMISSION OF THE BODY CAMERA FOOTAGE
A. Morris’s Contentions
Morris contends the trial court abused its discretion by admitting
portions of the footage of two body cameras worn by officers responding to the
scene after Sean and James were shot. We disagree.
B. Background
The prosecution moved in limine to admit footage from the responding
officers’ body-worn cameras because it captured Sean describing to the
officers what occurred before, during, and after the shooting. Defense counsel
moved to exclude this evidence because it showed the victim dying and was
not relevant to prove any elements of the charged offenses. Counsel also
argued the video footage was “gruesome, inflammatory, and [did] nothing to
prove or disprove who shot” the victim.
At the hearing on the motion, the prosecutor explained that she sought
to admit footage from body-worn cameras of two officers, who responded to
the scene of the shooting. The prosecutor wanted to show the first three
minutes and thirty seconds of the footage from the first officer, which
depicted a brief interview of Sean after the shooting. The prosecutor offered
the footage as “a spontaneous contemporaneous statement” from Sean
because defense “put forth identification of the shooter as [an] issue in the

37
case.” The prosecutor then played the proffered portion of the video for the
court. The prosecutor stated that Sean’s identification of the shooter was
“crucial,” and the video would constitute a prior consistent statement from
Sean, who would be cross-examined at trial as to what he saw the night in
question. In addition, the prosecutor argued the video should be admitted
because “it’s spontaneous and contemporaneous of what [Sean] saw, what
happened, and who the perpetrator was, the suspect, the shooter, just
moments after the crime occurred.”
Defense counsel objected to the video because it showed James gasping
for breath and dying. Counsel argued there were other ways the prosecutor
could introduce Sean’s statements to the officers, such as asking Sean and/or
the police officers what he said. In addition, the defense noted there was a
transcript of what Sean said, and the audio of the video could be played so
the jury did not have to watch the video. Counsel also insisted that “there
are some things that are so emotional and so powerful” that Evidence Code
section 352 requires exclusion.
The trial court observed that, although the video showed James dying,
it was relevant to the murder charge and showed Sean’s statements very
close in time to the shooting. Thus, the court determined that the video had
“substantial probative value” and its probative value “balance[d] out the
prejudicial effect.” Pending the proper foundation, the court indicated that it
would allow the admission of the portion of the video from the first officer.
Nonetheless, Morris’s trial counsel argued that the court only admit the
audio from the video. In response, the prosecutor said that the video showed
Sean’s demeanor, which was important for the jury to see to weigh his
credibility. The prosecutor also reiterated that she only wanted to show the

38
first three and a half minutes of the 11 minute and 40 second video, and that
she had edited out the life-saving measures that the video had captured.
The prosecutor also wanted to admit part of the video footage from the
second officer’s body-worn camera. The entirety of this video was 26 minutes,
but the prosecutor wanted to show the jury about five or six minutes, and
then fast-forward to another five or six minute segment. The prosecutor
played the first proffered portion for the trial court. The trial court said it
would admit this excerpt from the video because it was “definitely probative,”
and “the prejudicial effect [was] substantially outweighed by the probative
value.” Moreover, the court concluded the video was relevant to the murder
charge as well as Sean’s credibility. Thus, if the prosecutor could establish
the proper foundation, the court was inclined to admit the video.
After the trial court watched the second proffered excerpt from the
second officer’s body-worn camera, the trial court commented that all three
clips were relevant to the murder and attempted murder charges. The trial
court pointed out that defense counsel would be questioning Sean’s
identification of the shooter, so his credibility was an issue at trial.
Consequently, the court found it was appropriate to admit all three video
clips. The court again found that the video clips were probative, and that the
prejudicial effect was substantially outweighed by the probative value.
Further, the court noted that case law had found that in murder or attempted
murder cases, some photographs or videos may be gruesome, and show blood
and gore but were still admissible.
However, the trial court did have an issue with the end of the one of the
videos (Exhibit 15), where Sean was telling James to “hang on.” The
prosecutor agreed to remove that portion of the clip to be shown to the jury.

39
 C. Analysis
Generally, “all relevant evidence is admissible.” (Evid. Code, § 351.)
Relevant evidence is that which has any tendency in reason to prove or
disprove any disputed fact material to the outcome of the case. (Evid. Code,
§ 210.) A trial court has broad discretion in determining the relevance of
evidence, but lacks discretion to admit irrelevant evidence. (People v.
Hamilton (2009) 45 Cal.4th 863, 940.) Nonetheless, even relevant evidence
may be excluded if the trial court finds that 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.” (Evid.
Code, § 352.)
Here, Morris likens the video footage to victim photographs. He argues
the videos should not have been shown to the jury because they were unduly
gruesome and/or inflammatory (i.e., their prejudicial impact substantially
outweighed any probative value). Admission into evidence of victim
photographs is within the broad discretion of the trial court when a claim is
made that the photographs are unduly gruesome or inflammatory. (People v.
Crittenden (1994) 9 Cal.4th 83, 133.) We will not disturb the trial court’s
exercise of its discretion unless the probative value of the videos clearly is
outweighed by their unduly prejudicial effect. (Id. at p. 134; see People v.
Jones, supra, 57 Cal.4th at p. 924 [an appellate court will not disturb the trial
court’s ruling unless it determines the ruling is arbitrary, capricious, or
patently absurd].) Appellate courts “have rejected the contention that
photographs of a murder victim must be excluded as cumulative simply
because testimony also has been introduced to prove the facts that the
photographs are intended to establish.” (Crittenden, at pp. 134-135.)

40
Prosecutors “are not obliged to prove their case with evidence solely from live
witnesses,” and a jury is “entitled” to see photographs of a victim’s body “to
determine if the evidence supports the prosecution’s theory of the case.”
(People v. Gurule (2002) 28 Cal.4th 557, 624.)
In the instant matter, we do not find that the trial court abused its
discretion in admitting the three excerpts of the body camera footage. The
footage was relevant and probative because it showed Sean’s demeanor after
the shooting occurred and corroborated his statements regarding the
circumstances of the shooting and his identification of the shooter, a critical
issue in the case. Indeed, at trial, defense counsel focused on Sean’s
description of the shooter and the fact he thought the shooter had his hair in
cornrows. Counsel used Sean’s statements to argue that his identification of
Morris was inaccurate because Sean was intoxicated at the time and Morris
did not have cornrows at the time of the shooting.
So, playing the video footage for the jury corroborated Sean’s
description of the shooter and his cohort. It also showed the jury how
distraught Sean was when he was talking with the officers. And despite the
trauma that Sean had just experienced, he consistently stated that the
shooter was wearing a red shirt and a red baseball cap with gray bill on
backwards. Accordingly, the video was probative of Sean’s credibility.
Against the probative value of the short video clips, the footage
admitted in this case was not unduly prejudicial. Although one of the
excerpts (Exhibit 15) was more graphic than the other two (Exhibit 16) in
that James can be seen lying on the ground, severely injured, the video
footage is less gruesome than could be expected considering James was shot
three times. While the video showed blood pooling around James’s head, he
was still breathing and someone was administering CPR to him. And even

41
though blood could be seen on James’s face, the video showing James was not
especially gruesome (for example, there are no gaping bullet wounds visible).
Instead, the video clip depicts the officer’s interview of Sean with both Sean
and James shown in the clip. James can definitely be seen, but the jury could
see Sean’s demeanor and hear what he was conveying to the first officer after
the officers arrived on the scene.
Moreover, the second two video clips did not show James much, if at all.
The first clip showed the officer walking up to the scene where first
responders were rendering aid to James, but James was barely visible. When
the officer began talking to Sean, he guided Sean away from where James
was laying, and eventually had Sean sit on a nearby bench. These second
two video clips, which comprised Exhibit 16, were clearly probative of Sean’s
credibility and were not prejudicial to Morris whatsoever.
Further, Morris’s reliance on People v. Marsh (1985) 175 Cal.App.3d
987 (Marsh) does not alter our analysis. Marsh was decided over 35 years
ago, and, as the People point out, several more recent cases have found no
abuse of discretion when a trial court admitted photographs of the victim.
For example, in People v. Booker (2011) 51 Cal.4th 141, the “[d]efendant
cite[d] a variety of cases, some more than 50 years old, for the proposition
that a trial court can abuse its discretion by admitting particularly gruesome
photographs.” (Id. at p. 170.) The Supreme Court responded: “[C]ases of
more recent vintage have recognized that photographs of murder victims are
relevant to help prove how the charged crime occurred, and that in
presenting the case a prosecutor is not limited to details provided by the
testimony of live witnesses. [Citations.]” (Ibid; see People v. Scheid (1997) 16
Cal.4th 1, 16-17; People v. Carey (2007) 41 Cal.4th 109, 128; People v. Heard
(2003) 31 Cal.4th 946, 975.)

42
 In addition, Marsh, supra, 175 Cal.App.3d 987 is clearly
distinguishable from the instant matter. There, the prosecution projected
onto a screen seven enlarged, gory autopsy photographs “in vivid color” of a
two-year-old child who had been brutally beaten to death. (Id. at p. 996.)
And the prosecutor sought to introduce photos that even he admitted were
“ ‘terribly gruesome and terribly upsetting.’ ” (Id. at p. 997.) For instance,
one photo displayed the child victim’s exposed brain, including his dangling
bloody scalp. In the background of the photo was the child’s blood-splattered
torso “with the ribcages rolled back to expose the bowels.” (Id. at p. 996.)
Further, these photographs were gruesome not due to the injuries inflicted
but because they depicted what the autopsy surgeon had done to the child’s
body. (Id. at p. 999.)
The video footage shown the jury here does not even approach the
gruesome nature of photographs shown in Marsh. Only one of the three video
excerpts showed James for any significant amount of time, and even in that
video, the focus was on Sean. Also, although the court in Marsh found the
viewing of the photographs was of no particular value to the jury and the
purpose of exhibiting of them was to inflame the jury’s emotions against the
defendant (Marsh, supra, 175 Cal.App.3d at pp. 997-998), here, the video
clips were probative of Sean’s credibility. Moreover, defense counsel was
challenging Sean’s testimony identifying the shooter; thus, the video footage
focusing on Sean was highly relevant.
Additionally, we reject Morris’s contention that the videotapes were
merely cumulative of the other evidence admitted at trial. Among other
things, the trial testimony and written evidence did not demonstrate Sean’s
demeanor when he gave the earlier statements to the police at the scene of
the crime shortly after the shooting, which was relevant to the jury’s

43
credibility determination. (See People v. Box (2000) 23 Cal.4th 1153, 1199.)
Even testimony regarding Sean’s demeanor would not have been a substitute
for the videotapes because the actual video is much stronger evidence.
Based on the record before us, we cannot say that the prejudicial
nature of the videos substantially outweighed the video’s probative value.

The court did not abuse its discretion in admitting this evidence.5
VII
CUMULATIVE ERROR
Morris also contends the cumulative effect of the asserted errors
rendered the trial so unfair and unlawful that reversal of the judgment is
warranted. Because we determine only one prejudicial error exists, there are
not multiple errors to cumulate. As such, Morris’s argument based on
cumulative error necessarily fails. (Cf. People v. Vieira (2005) 35 Cal.4th 264,
305.)
VIII
THE UNPLED ENHANCEMENT
A. Morris’s Contentions
Morris asserts that 10 years of his sentence imposed based on two prior
serious and violent felony convictions under section 667, subdivision (a) must
be stricken because the enhancement allegations were not explicitly pled in
the charging documents. We agree.

5 To the extent that Morris is asserting that the trial court’s ruling
admitting the video footage amounted to a violation of his constitutional
rights to “due process and a fundamentally fair trial,” it is clear that evidence
that has been properly admitted under state law does not violate a
defendant’s constitutional right to a fair trial. (People v. Fuiava (2012) 53
Cal.4th 622, 670.)
44
 B. Background
The amended information alleged two prior conviction allegations. It
alleged an enhancement entitled “FIRST VIOLENT FELONY PRIOR” but
the substance of the allegations mirrored a prison prior enhancement: Morris
“was committed to the Department of Health pursuant to Welfare and
Institutions Code section 6300, et. seq.” for a February 25, 2011, conviction of
assault with force likely to produce great bodily injury (§ 245, subd. (a)(1))
and had not remained free from prison custody for a period of ten years
“within the meaning of PENAL CODE SECTION 667.5(a) and (i).” The
amended information also alleged a “STRIKE PRIOR(S)” under “Penal Code
sections 667(b) through (i), and 1170.12, and 668,” for the same February 25,
2011, violation of section 245, subdivision (a)(1). The prosecution did not
allege that it was seeking a five-year enhancement because Morris had
committed a serious and violent felony prior under section 667,
subdivision (a).
In pretrial proceedings, the court granted Morris’s request to bifurcate
the trial on the prior convictions from the trial on the substantive crimes.
Before the jury was discharged, Morris waived his right to a jury trial on the
prior conviction allegations. After a bench trial, the strike prior and prison
prior conviction allegations as alleged were found true.
At the time of sentencing, the prosecutor stated that it was her intent
to allege a section 667, subdivision (a) prior, not a section 667.5,
subdivision (a) prior, that she had only proved a section 667, subdivision (a)
prior conviction, not a prison prior, and that the allegation of the prison prior
was a “typographical error.” The prosecutor moved “by interlineation to fix
the typographical error so it’s a Penal Code section 667(a) . . . for purposes of
sentencing.”

45
 Defense counsel objected, arguing that the section 667, subdivision (a)
enhancement had not been pled and proven. He also provided the court with
the case People v. Nguyen (2017) 18 Cal.App.5th 260 (Nguyen) to support
Morris’s position. The court granted “the request to correct the error in the
pleading” and also changed the minute order for the court bench trial to
“reflect that the People did satisfactorily prove up the nickel prior under
Penal Code 667(a).” The court then sentenced Morris to five years each on
counts 1 and 2 for serious and violent felony priors under section 667,
subdivision (a), adding an additional 10 years to his sentence.
C. Analysis
“ ‘Due process requires that an accused be advised of the specific
charges against him so he may adequately prepare his defense and not be
taken by surprise by evidence offered at trial.’ ” (People v. Mancebo (2002) 27
Cal.4th 735, 750 (Mancebo). Where a statute requires an enhancement or
special circumstance be pleaded and proved, imposition of a sentence based
on an unpled enhancement or circumstance violates the pleading provision of
the sentencing statute. (Id. at p. 743 [sentencing of defendant to unpled
circumstance of gun enhancement violated explicit pleading provisions of one
strike law]; Nguyen, supra, 18 Cal.App.5th at p. 267 [trial court erred in
imposing five-year sentence enhancement under § 667, subd. (a), where
information alleged prior strike, but not prior serious felony conviction].)
In Mancebo, our high court reversed the imposition of an enhanced
sentence based on a multiple victim circumstance that was not alleged in the
information. (Mancebo, supra, 27 Cal.4th at p. 743.) The court’s holding
turned on its interpretation of section 667.61, former subdivisions (f) and (i),
of the one strike law. (Mancebo, at p. 749.) Specifically, section 667.61,
former subdivision (i), required that “ ‘[f]or the penalties provided in this

46
section to apply, the existence of any fact required under subdivision (d) or (e)
shall be alleged in the accusatory pleading and either admitted by the
defendant in open court or found to be true by the trier of fact,’ ” and former
subdivision (f) provided that “ ‘circumstances specified in [former]
subdivision (d) or (e) which are required for the punishment . . . [be] pled and
proved . . . .’ ” (Mancebo, at p. 749.)
The information in Mancebo alleged the special circumstances that
supported a sentence of 25 years to life under section 667.61, former
subdivision (e), including use of a firearm, kidnapping, and tying or binding,
but not the multiple victim enhancement. (Mancebo, supra, 27 Cal.4th at
p. 740.) However, the trial court sentenced the defendant to a prison term of
25 years to life based in part on the multiple victim enhancement, to enable
the court to apply the alleged firearm use enhancement to increase the
defendant’s sentence by an additional 10 years. (Ibid.)
The California Supreme Court observed, “[N]o factual allegation in the
information or pleading in the statutory language informed defendant that if
he was convicted of the underlying charged offenses, the court would consider
his multiple convictions as a basis for One Strike sentencing . . . . Thus, the
pleading was inadequate because it failed to put defendant on notice that the
People, for the first time at sentencing, would seek to use the multiple victim
circumstance to secure indeterminate One Strike terms . . . .” (Mancebo,
supra, 27 Cal.4th at p. 745.) The court concluded the People made a
discretionary charging decision not to allege the multiple victim enhancement
in the information, explaining: “There can be little doubt that the
prosecution understood the One Strike law’s express pleading requirements
and knew how to comply with them. We agree with the Court of Appeal’s
conclusion that the People’s failure to include a multiple-victim-circumstance

47
allegation must be deemed a discretionary charging decision. Not only is this
conclusion supported by the record, but [the People do] not contend, much
less suggest, how the failure to plead the multiple victim circumstance was
based on mistake or other excusable neglect. . . . [¶] . . . Because the People
elected to plead the enhancement allegations in this manner [relying on the
firearm special circumstance], the express provisions of [the sentencing
statute] restricted the trial court to this application.” (Id. at p. 749.)
The Court of Appeal in Nguyen, supra, 18 Cal.App.5th at pages 262,
264-266, applied the Supreme Court’s reasoning in Mancebo to facts similar
to those at issue here, concluding imposition of a five-year enhancement
under section 667, subdivision (a), was an unauthorized sentence where the
information alleged the defendant had a prior conviction of a strike under the
three strikes law, citing to sections 667, subdivisions (c) and (e)(1), and
1170.12, subdivision (c)(1), as well as a prison prior under section 667.5,
subdivision (b), but not a prior serious felony conviction under section 667,
subdivision (a). The defendant admitted he had a prior conviction for first
degree burglary, the burglary was a serious felony, and he had been
sentenced to prison for the offense. (Nguyen, at p. 264.) During the
admission colloquy and at sentencing, the prosecutor represented the
defendant was admitting a “ ‘nickel prior’ ” under section 667, subdivision (a),
without objection by defense counsel. (Nguyen, at pp. 264-265.)
The appellate court explained that section 1170.1, subdivision (e),
similar to the one strike law provision at issue in Mancebo, provides, “ ‘All
enhancements shall be alleged in the accusatory pleading and either
admitted by the defendant in open court or found to be true by the trier of
fact.’ ” (Nguyen, supra, 18 Cal.App.5th at p. 265.) The court observed,
“[W]hen, as here, the People allege a prior serious felony conviction, and

48
when they cite the three strikes law but do not cite the prior serious felony
conviction statute, we can only conclude that they have made ‘a discretionary
charging decision.’ ” (Id. at p. 267.) On this basis, the court modified the
judgment to strike the five-year term under section 667, subdivision (a), and
added a one-year term for the prior prison term enhancement, concluding
“the trial court erred by imposing the unpled five-year prior serious felony
conviction enhancement.” (Nguyen, at pp. 270, 272.)
Here, the People argue that Nguyen and Mancebo are distinguishable
because Morris “expressly knew prior to trial that the prior conviction for
assault with a deadly weapon would be used to enhance his sentence.” To
this end, they point out that in the second amended information, the
enhancement was titled “FIRST VIOLENT FELONY PRIOR” and not
“FIRST PRISON PRIOR.” However, as the People admit, the subject
enhancement referenced the wrong Penal Code section. Further, the
enhancement read as if the prosecution was seeking a prison prior
enhancement. Thus, the record is less than clear that Morris understood the
prosecution was seeking an enhancement under section 667, subdivision (a).
In addition, we are not persuaded by the fact that the prosecution
proved that Morris had committed a prior violent felony. We see little
difference between the prosecution proving the prior and the defendant in
Nguyen admitting that he committed a serious prior felony and the
prosecutor then commenting that he had admitted a “ ‘nickel prior’ ” under
section 667, subdivision (a). (Nguyen, supra, 18 Cal.App.5th at p. 264.)
Instead, like the court in Nguyen, we think section 1170.1, subdivision (e) is
quite clear in its requirements: “All enhancements shall be alleged in the
accusatory pleading and either admitted by the defendant in open court or
found to be true by the trier of fact.” (§ 1170.1, subd. (e); Nguyen, at p. 266.)

49
And in the instant matter, the serious and violent felony prior enhancement
was not alleged in the accusatory pleading.
Nonetheless, the People urge us not to be concerned about the
requirements of section 1170.1, subdivision (e), but instead, assert we should
focus on section 969. That section provides:
“In charging the fact of a previous conviction of felony, or of
an attempt to commit an offense which, if perpetrated,
would have been a felony, or of theft, it is sufficient to state,
‘That the defendant, before the commission of the offense
charged herein, was in (giving the title of the court in
which the conviction was had) convicted of a felony (or
attempt, etc., or of theft).’ If more than one previous
conviction is charged, the date of the judgment upon each
conviction may be stated, and all known previous
convictions, whether in this State or elsewhere, must be
charged.” (§ 969.)

Section 969 does not help the People in the instant matter. That
statute does not speak to the requirements of pleading an enhancement,
which is at issue here. Instead, section 969 addresses the requirements of
charging “the fact of a previous conviction of a felony . . . .” (§ 969.) It is not
of the moment in our analysis here.
Further, our conclusion does not change when we consider People v.
Fialho (2014) 229 Cal.App.4th 1389 (Fialho), as the People suggest. The
People rely on Fialho for the proposition that only the factual allegations
underlying an enhancement must be pled. They claim the charging
document adequately alleged the facts necessary to support a section 667,
subdivision (a)(1) enhancement in that Morris was convicted of a serious
felony (here, assault with a deadly weapon). As such, nothing else needed to
be alleged. We do not find Fialho instructive here.
In Fialho, the information charged the defendant with murder and
attempted murder, with enhancements for personally and intentionally
50
discharging a firearm, causing death or great bodily injury, under
section 12022.53, subdivision (d). (Fialho, supra, 229 Cal.App.4th at p. 1393.)
The jury found him guilty of the lesser included offenses of voluntary
manslaughter and attempted voluntary manslaughter. It also found the
enhancements true. (Ibid.) However, the enhancements could not apply to
the lesser offenses. (Id. at pp. 1393, 1395.) The trial court therefore imposed
personal firearm use enhancements under section 12022.5, subdivision (a)
instead. (Fialho, at p. 1394.)
On appeal, the defendant argued that he could not be subjected to the
enhancements under section 12022.5, subdivision (a) because they had not
been alleged or found true. (Fialho, supra, 229 Cal.App.4th at pp. 1394-
1395.) The appellate court disagreed, concluding “section 1170.1,
subdivision (e) does not preclude the imposition of ‘ “lesser included
enhancements” ’ [citation] when the charged enhancement is either factually
unsupported or inapplicable to the offense of conviction.” (Id. at p. 1397.) It
noted that “there is precedent in case law for imposition of uncharged but
‘ “lesser included enhancements” ’ [citation] . . . .” (Id. at p. 1395.)
Thus, Fialho applies to lesser included enhancements. As the court in
Nguyen noted, “The fact that the prosecution alleges that the greatest
potentially available enhancement does not suggest that it has made a
discretionary charging decision to forgo a lesser included enhancement, if the
greater turns out to be unavailable.” (Nguyen, supra, 18 Cal.App.5th at
p. 269.) Yet, in the instant action, we are faced with a markedly different
situation. A serious and violent felony enhancement is not a lesser included
enhancement of a prison prior. However, the fact that Morris was previously
convicted of a violent felony and served prison time for it could form the basis
of two separate enhancements—the nickel prior or the prison prior. We deem

51
the fact that the prosecution did not clearly allege a serious felony
enhancement to be a discretionary charging decision. (See id. at p. 267.)
Finally, we are not persuaded that the prosecution’s amending of the
enhancement allegations after the jury was discharged was permitted under
People v. Tindall (2000) 24 Cal.4th 767 (Tindall) as argued by the People. In
that case, after the defendant waived jury trial on the prior conviction
allegations contained in the information and the jury was discharged, the
prosecutor moved to amend the information to add three new prior
convictions. (Tindall, supra, 24 Cal.4th at p. 770.) Our Supreme Court held
that section 1025 prohibited doing so because, “[u]nder Penal Code
section 1025, subdivision (b), a defendant has the statutory right to have the
same jury decide both the issue of guilt and the truth of any prior conviction
allegations.” (Tindall, at p. 770.) “Because a jury cannot determine the truth
of the prior conviction allegations once it has been discharged [citation], it
follows that the information may not be amended to add prior conviction
allegations after the jury has been discharged.” (Id. at p. 782.) Tindall
clarified that, in permitting a postdischarge amendment in the absence of an
applicable waiver from the defendant, the trial court in that case had “acted
in excess of its jurisdiction.” (Id. at p. 770.)
In sum, “although the prosecution may amend an information to add
alleged prior convictions on the trial court’s order until sentencing [citations],
the court may not permit such an amendment if the jury has been
discharged, unless the defendant waives or forfeits the right to have the same
jury try both guilt and the priors [at issue].” (Tindall, supra, 24 Cal.4th at
p. 776.)
Here, the People maintain that the amendment to the second amended
information was proper under Tindall because Morris waived his right to a

52
jury trial as to the determination of the enhancements. But he did so before
he knew the prosecution was seeking a nickel prior enhancement. If the
prosecution adds a prior conviction allegation after an initial waiver, the
defendant retains his statutory rights under section 1025, unless he
specifically waives them with respect to the new allegation. (People v.
Gutierrez (2001) 93 Cal.App.4th 15, 24.) Morris did not specifically waive his
right to a jury trial with respect to the amended enhancement allegation. As
such, Tindall is of no help to the People.
In short, we agree with Nguyen and find it instructive in the instant
matter. Where, as here, the prosecution alleged a prior conviction as a strike
prior and a prison prior but does not cite the prior serious and violent felony
conviction statute or allege it is seeking the five-year enhancement for a
serious felony conviction, we must conclude that the prosecution made
“ ‘a discretionary charging decision’ ” and the trial court cannot impose the
nickel priors. (Nguyen, supra, 18 Cal.App.5th at p. 267.) The sentence
therefore was unauthorized and must be stricken.
IX
THE IMPOSITION OF MINIMUM FINES
Morris asserts that the restitution and parole revocation fines should
be reduced to $300 in accordance with the trial court’s stated intention to
impose the statutory minimum fines. Also, he contends that the abstract of
judgment should be amended to reflect the trial court’s stay of the fines and
fees because of his inability to pay. The People agree that the record
indicates that the trial court intended that Morris pay the minimum amounts
available and to stay the nonrestitution fines and fees.
Section 1202.4, subdivision (b) provides: “In every case where a person
is convicted of a crime, the court shall impose a separate and additional

53
restitution fine, unless it finds compelling and extraordinary reasons for not
doing so and states those reasons on the record.” At the time of Morris’s
original sentencing, the minimum fine the court could impose was $300.
Additionally, section 1202.45 provides that, when the defendant’s sentence
includes a period of parole, the court shall also impose “an additional
postrelease community supervision revocation restitution fine” in the same
amount as the restitution fine.
At the sentencing hearing, the trial court initially ordered Morris to
pay a restitution fine under section 1202.4, subdivision (b) in the amount of
$10,000. After Morris’s counsel objected stating that Morris did not have the
ability to pay, the trial court said it believed the minimum it could impose
was $1,000. The trial court subsequently ordered Morris to pay $1,000 under
section 1202.4, subdivision (b), and under section 1202.45, the amount of
$10,000, to be stayed unless Morris’s supervision was revoked.
With respect to the other fees and fines, the trial court imposed a court
security fee under Penal Code section 1465.8 in the amount of $200, a
criminal conviction assessment fee under Government Code section 70373,
and a criminal justice administration fee under Government Code
section 29550.1 in the amount of $154. The trial court then stated its intent
was to stay these fines and fees.
We agree with the parties that the record reflects that the trial court
intended to impose the minimum possible restitution fines and apparently
was unaware that the minimum restitution fine was $300. It also appears
that the trial court was not aware that the parole revocation fine under
section 1202.45 had to be in the same amount as the restitution under
section 1202.4, subdivision (b). Although we have the inherent authority to
correct Morris’s sentence by imposing the minimum restitution fines of $300

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under sections 1202.4 and 1202.45 (§ 1260 [appellate court’s power to modify
judgments]; People v. Scott (1994) 9 Cal.4th 331, 354; In re Ricky H. (1981) 30
Cal.3d 176, 191), we will instruct the trial court to correct the amount of the
fines because we are remanding this matter for resentencing.
Additionally, on remand, the trial court should amend the abstract of
judgment and minute order to show that the nonrestitution fines and fees
were stayed. “Rendition of judgment is an oral pronouncement.” (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1183.) “Where there is a
discrepancy between the oral pronouncement of judgment and the minute
order or the abstract of judgment, the oral pronouncement controls.”
(People v. Zackery (2007) 147 Cal.App.4th 380, 385; see People v. Mitchell
(2001) 26 Cal.4th 181, 185.)
The trial court granted Morris’s request to stay the nonrestitution fines
and fees. However, the abstract of judgment and minute order do not reflect
the trial court’s ruling. Thus, a discrepancy exists between the oral
pronouncement of judgment and the minute order for the sentencing hearing
and the abstract of judgment. Because the oral pronouncement controls, we
order the trial court to amend the minute order and abstract of judgment.

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 DISPOSITION
Morris’s conviction under count 2 for attempted murder is reversed.
On remand, the prosecution may elect to retry Morris for attempted murder
under a direct intent theory. Also, Morris’s sentence is vacated, and we
remand this matter back to the superior court. The court is to resentence
Morris consistent with this opinion as well as any retrial that may occur. In
addition, the superior court is to prepare an amended abstract of judgment
and forward same to the California Department of Corrections and
Rehabilitation. In all other respects, the judgement is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

DATO, J.

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