People v. Moore CA6

Filed 1/19/22 P. v. Moore CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046446
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1364062)

v.

SHAUN ALEXANDER MOORE,

Defendant and Appellant.

A jury rejected defendant’s self-defense claim, and convicted him of first degree
murder for killing Ramon Garcia. Defendant argues that trial counsel rendered
ineffective assistance by not objecting during defendant’s cross-examination to questions
eliciting that he violated court orders by taking possession of the gun used to kill Garcia
just before shooting him. He also argues the prosecutor committed prejudicial
misconduct during defendant’s cross-examination by posing a series of argumentative
and speculative questions, and during closing argument by misstating the law on heat of
passion voluntary manslaughter. He further asserts that his prior conviction for active
participation in a criminal street gang was not shown to be a prior serious felony or strike
offense.
Defendant’s prosecutorial misconduct claims are forfeited to the extent he neither
objected to the questions and argument nor sought a jury admonition. As we find no
prejudice from any prosecutorial error during cross-examination or closing argument, we
reject defendant’s ineffective assistance claims.
 We agree that the abstract of judgment used to prove defendant’s prior conviction
for active participation in a criminal street gang does not establish the elements of the
offense necessary to qualify the conviction as a prior serious felony and strike offense.
We will therefore reverse the true finding and remand the matter to retry the prior serious
felony and prior strike allegations.
I. BACKGROUND
Defendant fatally shot Ramon Garcia in August 2013 in a parking lot near
downtown San Jose. He was charged with murder with the personal use of a firearm
(Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) The information alleged a prior
strike conviction (Pen. Code, §§ 667, subds (b)–(i), 1170.12) and a prior serious felony
conviction (Pen. Code, § 667, subd. (a)). Trial was held in 2018.
The prosecution called several percipient witnesses at trial: From his second story
apartment on 3rd Street, one witness heard an escalating commotion and saw “a group of
guys against one individual.” An African American man wielded a bat at a Hispanic man
who was “backing up” and being followed, and the others looked like they were
“containing” the Hispanic man. The African American man swung the bat at the
Hispanic man. The Hispanic man fell, held up his forearms to defend against the bat, and
struggled to get up. He turned his back, and moved away from the man with the bat and
from the witness’s view.
From a yard sale on the corner of 3rd and Julian, a woman heard a noisy group of
men approaching on the street. As the group got closer, an African American male hit a
man on a bicycle with a large stick. The man fell, was hit again, and started to bleed.
From his westbound car stopped at the traffic light at Julian and 3rd, a man saw a
group of four or five African American males running on 3rd toward Julian. The group
was led by two men, one of whom carried a large wooden stick. The group arrived at
Julian just as a Mercedes pulled up. The man with the stick approached the Mercedes,
was handed a gun, and ran east on Julian. The other man who led the group remained at
2
the corner and yelled “ ‘yeah, yeah, yeah’ ” as the witness heard shots being fired. The
group appeared to be chasing a Hispanic male on a bicycle. The passenger in the same
car saw the Mercedes pull up and observed people on the sidewalk. Someone grabbed
something from the car and “speed walk[ed]” toward a nearby taqueria. She turned
around and saw the person fire a gun, a man on a bicycle fall, and other people scatter.
A man who lived across the street from the taqueria parking lot witnessed the
shooting from his driveway. A Hispanic man rode up on a bicycle followed by an
African American male on foot. The Hispanic man jumped off the bike as he turned into
the parking lot, raised his hands “almost like he was being arrested,” and said “ ‘you got
me. You got me.’ ” The African American man fired at the Hispanic man three times,
and ran down 4th Street. Another man heard shots fired, saw an African American man
run south on 4th Street, discard what looked like a baseball bat in an abandoned lot, and
hand what looked like a gun to a someone on a bike.
Defendant testified that Garcia approached his friends Clompton and Kemp in
St. James Park looking for drugs. Garcia took offense when defendant said something
like “ ‘You all in my boy’s face.’ ” Defendant did not know Garcia, who appeared high,
but he apologized to Garcia, they “tapped” fists, and Garcia walked away. Garcia
returned a few minutes later with two men on bicycles. Defendant thought one of the
men had a gun because of the way he was touching his pants. Garcia said he felt
disrespected and wanted to “take it down the street” to fight. Defendant agreed because
he wanted to “get the threat away” from the children at the park, including his seven-
month-old son. A small group, including defendant, Garcia, Garcia’s two companions,
and Clompton, proceeded to walk away from the park.
Defendant testified that he alone followed Garcia to a carport behind an apartment
complex, where Garcia struck defendant’s mouth with his fist. Defendant struck back,
avoided a second blow, and slipped. Garcia struck defendant’s lip with a shiny object
which defendant thought was a knife. Defendant was unarmed, scared, and told Garcia
3
he did not want to fight. Garcia held the shiny object which looked like an awl or
screwdriver, motioned defendant to “come on,” and defendant thought Garcia was going
to stab him. Garcia swung again, defendant got “out of the way,” but felt “a little pinch”
in his side. As defendant ran toward the street where the onlookers remained, he felt a
slash on his back and thought it was from a knife. As he walked toward the park, he saw
an axe handle on the ground and picked it up. He did not want to fight, but the onlookers
were egging on both sides.
Defendant described that Garcia and the others followed him past the park, and on
the next corner (3rd and Julian) defendant struck Garcia, who “ ‘was coming at’ ” him, on
the shoulder with the axe handle. Defendant was scared because “nothing [was] going to
stop” Garcia. Defendant swung the axe handle a second time, striking Garcia above the
ear. Garcia fell, but “bounced right back up” just as defendant heard someone calling his
name. Defendant turned and saw his friend Demo gesturing from a car. Defendant ran to
Demo, who handed him a gun. Garcia jumped on his friend’s bike, and defendant
pursued him on foot. Garcia peddled less than a block before turning into a parking lot
and stepping off the bike. Garcia was holding an awl when defendant “got up close to
him [and] shot him.” Garcia “went down,” but he “got back up and motioned like he was
going to swing the object again,” and defendant “shot again.”
Several 911 calls were admitted in evidence, in addition to the axe handle, and a
video of the shooting captured on a home surveillance camera. Garcia’s DNA was found
on the handle and tip of an awl that was recovered from the parking lot. Defendant’s
DNA was not detected on the awl.
Defendant testified that he used someone else’s name and a made-up social
security number at the emergency room later that day, where he received sutures on his
lip. He testified that he borrowed a car from someone he knew for a “couple hundred
dollars,” drove to San Francisco and threw the gun off the Golden Gate Bridge, before he

4
went to the emergency room. Within weeks, he went to Las Vegas where he shaved his
dreadlocks.
Clompton, whom defendant described as a “good friend” who would regularly
“hang out with [defendant] and [defendant’s wife],” testified that a man on a bicycle
approached him in the park about “smoking weed.” The man, who “came off wrong, the
way he act[ed],” approached others, left the park, returned with someone else, and
approached a table in the park “like in conversation.” Then “everybody got up and left
down the street,” and it looked like there was going to be a fight. Clompton testified that
he followed the group to the edge of the park, where he heard a loud commotion, “and a
black guy came out, it looked like he was bleeding and it looked like he was trying to get
away.” Clompton could no longer see the group once they reached Julian Street. He
testified on cross-examination that he did not know defendant, he had seen defendant
twice before “around the park,” but he did not know or remember what defendant’s face
looked like.
A toxicology report showed that Garcia was under the influence of alcohol and
methamphetamine when he died. A psychiatrist testified regarding persons under the
influence of alcohol and methamphetamine. He explained that “anyone who is
intoxicated on alcohol and methamphetamine is at a higher risk of behaving violently.”
But he went on to state that “a [] male riding a bicycle and then being randomly assaulted
from behind” does not describe violent behavior.
The jury was instructed on first degree murder, first or second degree murder with
malice aforethought, justifiable homicide (self-defense), heat of passion voluntary
manslaughter, and imperfect self-defense voluntary manslaughter. Defendant argued that
he acted in self-defense to protect himself from a violent erratic man who had attacked
him with an awl. The prosecutor argued that taking the gun from Demo and pursuing and
shooting a retreating victim multiple times showed premeditation; there was no credible
evidence of self-defense; and it defied logic that defendant would pursue Garcia, who
5
was carrying an awl, when at the same time he was afraid of one of Garcia’s associates
who he believed was armed with a gun.
The jury found defendant guilty of first degree murder and found the firearm
enhancement to be true. The court found true the prior strike and serious felony
allegations. Defendant was sentenced to 80 years to life, composed of three 25-years-to-
life terms (for murder, the prior strike, and the firearm enhancement), and five years for
the prior serious felony conviction.
II. DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Defendant argues that trial counsel rendered ineffective assistance by failing to object on

relevance and Evidence Code section 352 grounds to the prosecutor’s questions regarding
defendant’s violation of court orders. An ineffective assistance claim requires a showing

both that counsel’s performance fell below an objective standard of reasonableness and
that defendant was prejudiced by the deficient performance. (Strickland v. Washington
(1984) 466 U.S. 668, 687.) “Unless a defendant establishes the contrary, we shall
presume that ‘counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a matter of
sound trial strategy.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) If the record on
appeal “sheds no light on why counsel acted or failed to act in the manner challenged,
‘unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation’ [citation], the case is affirmed.” (People v.
Babbitt (1988) 45 Cal.3d 660, 707.) To prove prejudice, a defendant must affirmatively
show a reasonable probability of a more favorable result but for trial counsel’s errors.
(Ledesma, at p. 746.) A reasonable probability is “a probability sufficient to undermine
confidence in the outcome.” (People v. Williams (1997) 16 Cal.4th 153, 215.)
The prosecutor moved in limine to impeach defendant with prior convictions
involving moral turpitude. The motion identified 12 convictions between 1998 and 2013,
6
most involving possessing drugs for sale. In chambers, the prosecutor limited its request
to three convictions: selling narcotics in 2010 (Health & Saf. Code, § 11352); possessing
drugs for sale in 2006 (Health & Saf. Code, § 11351); and possessing a firearm as a felon
in 2004 (Pen. Code, § 12021). The trial court ruled the three convictions admissible as
impeachment evidence. Defendant did not object to the ruling.
Defendant admitted the prior convictions on direct examination. The prosecutor
elicited on cross-examination that at the time Demo handed him the gun, defendant knew
he had been convicted of drug dealing and possessing a gun as felon; knew he was not
supposed to handle a gun; and decided to take the gun even though he had been ordered
not to have one. In further cross-examination, the prosecutor elicited that defendant
“definitely knew that [he] [was] not supposed to be a felon in possession” at the time he
was convicted of possessing a firearm as a felon; the court had ordered him “not [to] have
any firearms for the rest of [his] life”; and he “disobeyed that order.”
Defendant argues trial counsel should have objected to the prosecutor’s questions
because a felon’s use of a gun in self-defense is not unlawful under People v. King (1978)
22 Cal.3d 12, 23 (holding Penal Code former section 12021, prohibiting a felon from
possessing a concealable firearm, does not restrict a felon’s use of a concealable firearm
in self-defense). Defendant posits that the admissions were not relevant to his credibility
or to whether he was acting in self-defense; trial counsel should have objected so that the
jury would not infer he was disposed to violence and less likely to be credible because he
possessed a gun in this case.
Defendant argues he was prejudiced by counsel’s failure to object because the
prosecution’s case depended on defendant’s credibility, and evidence that he “possess[ed]
a gun illegally and against a court order provided necessary ammunition to the argument
that he should not be believed.” In defendant’s view, the case was close because no
witness saw how the incident started, and there was no evidence that he knew Garcia,
planned to kill Garcia, or had motive to kill Garcia. The trial court instructed the jury
7
with CALCRIM No. 226 that a witness’s credibility can be judged by, among other
things, whether “the witness [has] been convicted of a felony” and whether “the witness
[has] engaged in other conduct that reflects on his or her believability.” Defendant
contends he was deprived of a fair trial because the instruction on witness credibility,
combined with the prosecutor’s closing argument that “[h]e was ordered by the Court to
say the truth, but he’s disobeyed prior court orders,” permitted the jury to make an
adverse credibility finding.
The Attorney General argues that no deficient performance occurred because
defendant objected to the prior conviction pre-trial, and those objections continued
through trial. Indeed, defendant objected in limine to impeaching with undisclosed prior
convictions, but not with moral turpitude convictions generally, and he admitted the felon
in possession conviction on direct examination. He also objected to using the record of a
conviction or a no contest plea to impeach, and to prior bad act evidence under Evidence
Code section 1101, subdivision (b) without a ruling outside the jury’s presence. The
asserted error defendant complains of here is different. He asserts error as to the
questions eliciting that he “knew [he was] not supposed to handle a gun” when he took it
from Demo, he “knew he was ‘not supposed to be a felon in possession,’ ” and he “knew
[he] “disobeyed a court order by possessing the gun.” Defendant’s in limine motions did
not encompass those issues.
To the extent trial counsel should have objected to questions about defendant
acting unlawfully and contrary to a court order by taking the gun from Demo to defend
himself, the resulting testimony was not prejudicial. Defendant’s credibility was properly
impeached with the three moral turpitude felony convictions, including the conviction in
2004 for unlawfully possessing a firearm. (People v. Robinson (2011)
199 Cal.App.4th 707, 713 [“possession of a firearm by a felon is a crime of moral
turpitude, as it denotes a ‘readiness to do evil’ ”].) Defendant’s credibility was also
challenged by evidence of his providing a false name to Kaiser and fleeing to Nevada
8
where he changed his appearance. But more importantly, defendant’s culpability does
not rest on his credibility, as he argues. The prosecution’s witnesses testified that
defendant beat Garcia with the axe handle, and Garcia acted defensively up to and at the
time he was shot. For the jury to accept defendant’s version of events, it would have to
find six independent percipient witnesses not credible.
Nor do the jury’s questions during deliberations demonstrate that the case was
close as to self-defense or manslaughter. The jury requested readback of defendant’s
testimony, the testimony of the witness who saw the group on 3rd Street from his second
story window, and the testimony of the witness who observed defendant after the
shooting. Those requests do not reveal the jury’s deliberative process. The jury also
asked the court whether the definition of “deliberate” in CALCRIM No. 521 (defining
“deliberately” for purposes of first degree murder) applied to the term in CALCRIM
No. 520 (elements of implied malice for second degree murder) and to “expand on the
definitions in 521 (especially [the] 2nd paragraph).”1 That question indicates that the jury
was carefully considering first and second degree murder.
B. PROSECUTORIAL MISCONDUCT CLAIMS
Defendant argues the prosecutor committed misconduct in cross-examination and
in arguing the law on heat of passion voluntary manslaughter. As a general rule, “ ‘ “[a]
defendant may not complain on appeal of prosecutorial misconduct unless in a timely
fashion, and on the same ground, the defendant objected to the action and also requested
that the jury be admonished to disregard the perceived impropriety.” ’ ” (People v.
Centeno (2014) 60 Cal.4th 659, 674.) During defendant’s cross-examination, counsel
1
The second paragraph of CALCRIM No. 521 instructs: “The length of time the
person spends considering whether to kill does not alone determine whether the killing is
deliberate and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the circumstances. A
decision to kill made rashly, impulsively, or without careful consideration is not
deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be
reached quickly. The test is the extent of the reflection, not the length of time.”
9
objected to several questions as either argumentative or calling for speculation. But he
did not make all possible objections to the questions and argument he now challenges,
and he did not request an admonishment. Defendant has failed to show that further
objection would have been futile or that any harm caused by the asserted misconduct
would not have been cured with an admonition. Defendant has therefore forfeited his
misconduct claims. He argues in the alternative that trial counsel was ineffective for
failing to properly object to the asserted misconduct, which we now address.

1. Lack of Objection During Cross-Examination
Defendant testified on direct examination that Garcia took offense to the remarks
he made in the park; Garcia challenged him to a fight; a crowd followed but remained on
the street when Garcia and defendant entered a carport where they fought with no
onlookers; Garcia used a sharp tool against defendant; defendant retreated to the street
where he found a wooden axe handle; and defendant was scared and believed Garcia was
high.
We set out the relevant portions of defendant’s cross-examination, italicizing the
questions defendant views as improper: The prosecutor asked defendant if it was “just a
coincidence” that the crowd stopped following him and Garcia as they entered the
carport. The court overruled defendant’s objection that the question called for
speculation, but the prosecutor rephrased the question anyway: “So this group of people
that are following you, they stop for no reason and you go into this carport area and there
is no one else there?” Defendant agreed. The prosecutor asked defendant about the axe
handle he found after retreating from the carport: “It’s just on the ground on the
sidewalk?” Defendant said it was. The prosecutor asked, “Just randomly when you
needed it?” After the court sustained an argumentative objection, the prosecutor probed
what happened when defendant found the axe handle. Defendant said he attempted to
run away, but he “didn’t literally run” and was “walking backwards” toward the park.

10
Garcia was facing him but turned “to take the hit” when defendant struck him on the
head. Garcia was also “initially” facing defendant and “moved to take the hit” when
defendant struck Garcia on his back.
The prosecutor asked, “Then [Garcia] is walking away from you right and you
follow him[] [¶…¶] … on 3rd going toward[] Julian[?]” Defendant explained, “I
followed him, but he didn’t walk away,” and “I was being followed. I followed him from
3rd up to Julian toward[] 4th.” The prosecutor asked, “You were not afraid when you
were following him, were you?” Defendant said he was, and the prosecutor asked, “Why
would you follow someone that you are afraid of?” Defendant said, “I didn’t know if he
was going to get another weapon or anything of that nature or repercussions or anything.”
The prosecutor then commented, “That doesn’t make sense to me,” and asked “[Y]ou’re
on 3rd walking toward[] Julian, and Mr. Garcia’s back is toward[] you. You are walking
behind him?” Defendant said, “We were on Julian and 3rd, we were right on the corner;
so there is no coming back up to Julian.”
After eliciting that Garcia was biking away from defendant, the prosecutor asked
“And you decide to get a gun?” Defendant said yes. The prosecutor asked defendant
how the person who gave him the gun knew he was on 3rd and Julian? The court
sustained an objection to the question as calling for speculation. After asking about
defendant’s relationship to Demo and Demo’s timing, the prosecutor asked, “He knew
that you needed a gun at that point?” The court sustained an objection. The prosecutor
asked, “How would he [Demo] know?” and the court sustained another objection.
Defendant said he had not seen Demo earlier that day, to which the prosecutor posed,
“But he was able to know that you were at 3rd and Julian right when you needed a gun
he was there?” The court sustained defendant’s objections on grounds that the question
was argumentative and called for speculation. The prosecutor asked, “He was able to
give you a gun at 3rd and Julian; right?” Defendant agreed. He testified that Demo was
a passenger in the car, and he did not know the driver. The prosecutor asked, “Demo
11
knew you were at 3rd and Julian, he was in the passenger seat, and he was able to hand
you a gun?” Defendant objected, and the prosecutor was instructed to rephrase the
question.
The prosecutor asked defendant about the handoff, defendant’s prior convictions,
and how he pursued Garcia with the gun. Defendant explained that he followed Garcia
from 3rd and Julian to the parking lot with a gun “out of fear” and because he was “afraid
of what [Garcia] is going to do.” The prosecutor asked, “Instead of running away [in] the
opposite direction, you follow him?” Defendant said he did. The prosecutor pressed,
“You followed him with a gun?” Defendant said he did, and the prosecutor asked, “How
does that make sense?” The court sustained an argumentative objection, and the
prosecutor asked defendant about the shooting.
The prosecutor later inquired about defendant’s state of mind. The prosecutor
asked whether defendant accidently gave Kaiser the wrong name and social security
number; whether he accidently decided to drive to San Francisco to dispose of the gun;
and whether it was his decision to go to Las Vegas and shave his head. The prosecutor
asked, “Are you saying right now, as you sit here, when you were talking to your lawyer,
that you accidentally shot Mr. Garcia?” Counsel objected, and the prosecutor rephrased
the question, asking “Are you trying to tell us that you accidentally shot Mr. Garcia?”
Defendant said no, and he “wasn’t thinking.” Defendant denied planning to meet Demo
on 3rd and Julian, but he agreed he “chased after Mr. Garcia when his back was toward[]
[him],” and shot him five times.
Defendant argues that the prosecutor’s question—“Are you saying right now, as
you sit here, when you were talking to your lawyer, that you accidentally shot Mr.
Garcia?”—was an improper comment on defendant’s post-arrest silence. While we
acknowledge some ambiguity, we understand the phrase “when you were talking to your
lawyer” to refer to defendant testifying on direct examination, and not to defendant

12
“providing his story for the first time after obtaining counsel.” Counsel was not deficient
for not objecting to that question.
Defendant argues the quoted italicized questions were improper because they
elicited information of which he had no personal knowledge. And the repeated questions
about what Demo knew when he arrived with the gun were argumentative and conveyed
to the jury that the prosecutor did not believe defendant was credible. We agree the
questions, as phrased, called for speculation and were argumentative. But multiple
objections were sustained on those grounds, and we see no deficient performance by
counsel for not objecting further or seeking an admonishment. Counsel’s objections
alerted the jury to the speculative and argumentative nature of the prosecutor’s questions.
Not seeking an admonishment may have been a tactical decision not to draw further
attention to what was clearly a problematic aspect of defendant’s case. Although “it is
improper for a prosecutor to argue that he has superior knowledge of sources unavailable
to the jury” (People v. Williams (1997) 16 Cal.4th 153, 257), that is not what occurred
here.
Nor do we see a reasonably probability that an outcome more favorable to
defendant would have resulted had counsel sought an admonishment regarding the
prosecutor’s questions. The evidence from percipient witnesses showed defendant
beating Garcia and fatally shooting him as he held up his hands. An admonishment
would not have changed the evidence or prevented the prosecutor from arguing at the
close of the case that defendant’s version of events was not credible.

2. Lack of Objection During Closing Argument
The jury was instructed with CALCRIM No. 570 on the heat of passion theory of
voluntary manslaughter: “1. The defendant was provoked; [¶] 2. As a result of the
provocation, the defendant acted rashly and under the influence of intense emotion that
obscured his reasoning or judgment; [¶] [AND] [¶] 3. The provocation would have

13
caused a person of average disposition to act rashly and without due deliberation, that is,
from passion rather than from judgment.”
Trial counsel argued that defendant acted in self-defense. Turning to the elements
of first degree murder, he then argued that the killing was not deliberate or premeditated.
He explained that provocation can be used to distinguish between first and second degree
murder and also in deciding whether the killing was manslaughter. He continued: “I’m
discussing the rules of manslaughter because it’s my job. I have to talk about this, and I
want you guys to understand these rules. I don’t agree that this is manslaughter. I think
[defendant] was acting in self-defense, but I have to discuss this, and I want you to
understand the rules governing manslaughter in addition to the rules governing self-
defense.”
Counsel argued defendant acted without motive and in self-defense after Garcia
provoked a fight. Counsel urged the jurors to consider manslaughter if they did not
believe defendant had acted in self-defense. He argued that heat of passion manslaughter
“is upon sudden quarrel”; that “[c]learly, whatever happened began because of this
fight”; and that “the fear of being stabbed, the fear of being called out to fight and then …
sudden[ly] somebody pulls out an awl and tries to stab you, that could invoke a strong
emotion in a person.” He argued such provocation “would have caused a person of
average disposition to act rashly and without due deliberation … from passion rather than
judgment,” and posited, “So you have to consider how would the average person feel
being attacked with a weapon? Would that evoke an emotion? Would that be a strong
emotion? Yes, it would.” Counsel explained imperfect self-defense, and argued it would
apply if defendant’s beliefs about imminent danger or the immediate need to use deadly
force would be unreasonable to the average person.
The prosecutor argued in rebuttal that defendant had lied, he did not act in self-
defense, and no independent witness testified that Garcia had threatened him.
Anticipating the trial court’s instruction to the jury that, “If you decide that a witness
14
deliberately lied to you about something significant in the case, you should consider not
believing anything that witness says” (CALCRIM No. 226), the prosecutor argued that
the jury should reject everything defendant said, leaving “[n]o direct evidence of
anything that relates to heat of passion, imperfect self-defense, [or] self-defense.” He
continued: “And this is the standard. Would an average – would a reasonable person
run after someone that had a screwdriver and shoot them down because they had an
unreasonable fear of that person? No. There’s nothing that shows heat of passion,
nothing.” He argued that defendant’s conduct after acquiring the gun demonstrated both
a premeditated and deliberate killing, and that “[t]his isn’t heat of passion. It can’t just
evoke the defendant’s emotions. It has to be a person of average disposition. Would a
normal person have acted the way [defendant] did? No. That’s not how the average
person – person of average disposition would have acted.”
Defendant argues the italicized comments prejudicially misstated the law. The
legal standard for heat of passion provocation does not ask whether an average person
would have been provoked into killing the victim: “Adopting a standard requiring such
provocation that the ordinary person of average disposition would be moved to kill
focuses on the wrong thing. The proper focus is placed on the defendant’s state of mind,
not on his particular act. To be adequate, the provocation must be one that would cause
an emotion so intense that an ordinary person would simply react, without reflection. ...
[P]rovocation is not evaluated by whether the average person would act in a certain way:
to kill. Instead, the question is whether the average person would react in a certain way:
with his reason and judgment obscured.” (People v. Beltran (2013) 56 Cal.4th 935, 949.)
Provocation focuses on whether the surrounding circumstances were sufficient to cause a
reasonable person to act rashly. “How the killer responded to the provocation and the
reasonableness of the response is not relevant to sudden quarrel or heat of passion.”
(People v. Najera (2006) 138 Cal.App.4th 212, 223.)

15
 The prosecutor misstated the law by referring to how an average or reasonable
person would have acted in defendant’s circumstances, instead of asking whether an
ordinary person’s reason and judgment would have been obscured in defendant’s
circumstances. Even assuming defense counsel had no tactical reason for not objecting to
the misstatements, we see no prejudice on this record. The trial court instructed the jury
correctly with CALCRIM No. 570 (voluntary manslaughter based on heat of passion).
We presume the jury followed the court’s accurate instructions rather than the
prosecutor’s misstatements (People v. Sanchez (2001) 26 Cal.4th 834, 852), and nothing
in the record suggests otherwise.
The subjective component of heat of passion manslaughter requires that the
defendant “acted rashly and under the influence of intense emotion that obscured
(his/her) reasoning or judgment.” (CALCRIM No. 570.) Defendant testified that after
picking up the axe handle, “I kept saying I didn’t want to fight, but the crowd was trying
to egg it on on both sides.” That statement alone demonstrates that defendant’s reasoning
and judgment were not obscured by Garcia’s purported aggression. Consistent with
defendant’s testimony, trial counsel argued that defendant had acted in self-defense and
not under heat of passion. Overwhelming evidence demonstrated that defendant killed
with malice, and we see no reasonable probability that the jurors would have returned a
verdict more favorable to defendant had the prosecutor’s misstatements about voluntary
manslaughter been corrected during argument.
C. CUMULATIVE PREJUDICE
We reject defendant’s argument that there was cumulative prejudice rising to the
level of a due process violation. “Lengthy criminal trials are rarely perfect, and this court
will not reverse a judgment absent a clear showing of a miscarriage of justice.” (People
v. Hill (1998) 17 Cal.4th 800, 844.) Defendant received due process and a fair trial. He
was able to present his defense, and he was not prejudiced by either the prosecutor’s

16
questions related to defendant’s prior gun possession conviction, or by counsel’s
performance during cross-examination and closing argument.

D. THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH A PRIOR SERIOUS FELONY
OR STRIKE CONVICTION

In a bifurcated proceeding, the trial court found true that defendant suffered a
conviction in 2001 for active participation in a gang, and that it qualified as both the prior
serious felony and prior strike alleged in the amended information. Defendant argues the
abstract of judgment used to prove the conviction is insufficient to establish the elements
of the offense as described by the California Supreme Court in People v. Rodriguez
(2012) 55 Cal.4th 1125.
Penal Code section 186.22, subdivision (a) (section 186.22(a)) makes it unlawful
to “actively participate[] in any criminal street gang with knowledge that its members
engage in, or have engaged in, a pattern of criminal gang activity, and [to] willfully
promote[], further[], or assist[] in any felonious criminal conduct by members of that
gang.” Under Penal Code section 1192.7, “any felony offense, which would also
constitute a felony violation of [Penal Code] section 186.22,” qualifies as a “serious
felony,” and in turn, a strike offense. (Pen. Code, §§ 667, subds. (d)(1), (e), 1192.7,
subd. (c)(28).)
In 2012, the Supreme Court held that section 186.22(a) is not violated when an
active gang member commits a felony offense but acts alone. (People v. Rodriguez,
supra, 55 Cal.4th at p. 1139.) In People v. Strike (2020) 45 Cal.App.5th 143, review
denied June 10, 2020 (Strike), the appellate court held that the “change in the
interpretation of section 186.22(a) rendered a pre-Rodriguez conviction inconclusive on
its face as to whether it qualified as a strike.” (Strike, at p. 150.) Strike pleaded guilty in
2007 to active gang participation under section 186.22(a). He admitted the prior
conviction in a 2017 prosecution, and the superior court found the admission extended to
the elements of section 186.22 “as now understood,” based on the allegations in the 2007

17
charging document that a codefendant was a member of defendant’s gang. (Strike, at
pp. 146–147.) Because the record did not show Strike admitted the factual allegations
contained in the 2007 charging document as part of his guilty plea, the superior court in
2017 was found to have engaged in impermissible fact finding. (Id. at pp. 152–153.) The
inquiry “invade[d] the jury’s province by permitting the court to make disputed findings
about ‘what a trial showed, or a plea proceeding revealed, about the defendant’s
underlying conduct.’ ” (Id. at p. 152; People v. Gallardo (2017) 4 Cal.5th 120, 124
[“when the criminal law imposes added punishment based on findings about the facts
underlying a defendant’s prior conviction, ‘[t]he Sixth Amendment contemplates that a
jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable
doubt’ ”].) The matter was remanded for a new hearing on the prior strike for the
prosecution to demonstrate, based on the record of the 2007 proceeding, that the
defendant’s guilty plea encompassed a relevant admission in light of Rodriguez’s
clarification that the defendant must have committed the offense with at least one other
gang member. (Strike, at p. 154.)
The Attorney General invites us to conclude that Strike was wrongly decided. We
are not persuaded here to depart from the conclusion in Strike and People v. Gallardo that
Sixth Amendment principles limit the trial court’s role “ ‘to determining the facts that
were necessarily found in the course of entering the conviction.’ ” (Strike, supra,
45 Cal.App.5th at p. 152.)
The Attorney General also argues “[a]ny violation of section 186.22,
subdivision (a), is a strike offense,” the record establishes that defendant suffered a
conviction under section 188.22, and defendant must attack his prior conviction in a
collateral proceeding where he would have the burden of proving the conviction is
invalid. But defendant is not challenging the validity of his prior conviction, only
whether it has been shown to qualify as a serious felony under Penal Code section 1192.7
(and in turn as a strike). Under that section, the conviction must satisfy the current (i.e.,
18
post-Rodriguez) understanding of the offense. We agree the record establishes
defendant’s 2001 conviction for gang participation, but the abstract of judgment alone
does not prove that the conviction constitutes a violation of section 186.22(a) as
interpreted in Rodriguez. (Strike, supra, 45 Cal.App.5th at p. 150.) “The prosecution had
to prove defendant admitted all of the elements of the offense as explained by Rodriguez,
including that he committed a felony offense with another member of his gang.” (Ibid.)
We will accordingly reverse the true findings regarding the serious felony and strike
allegations, and remand the matter for retrial of the prior conviction allegations and
resentencing. (Id. at p. 155.)
III. DISPOSITION
The true findings regarding the prior serious felony and strike allegations are
reversed. The judgment is vacated, and the matter is remanded to retry the prior serious
felony and prior strike allegations and for resentencing.

19
 ____________________________________
Grover, J.

WE CONCUR:

____________________________
Greenwood, P. J.

____________________________
Elia, J.

H046446 – The People v Moore