People v. Payne CA2/7

Filed 3/16/22 P. v. Payne CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B296845

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA469704)
v.

KEVIN ANTHONY PAYNE, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Katherine Mader, Judge. Convictions
affirmed. The sentence is vacated and cause remanded with
directions.
Alan Tavelman, Michele H. Kendall; William J. Capriola,
under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Senior Assistant Attorney General, Roberta L.
Davis, Idan Ivri, William H. Shin and David Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________

A jury found Kevin Anthony Payne, Jr., guilty on four
counts of attempted murder, two counts of shooting at an
occupied vehicle and several related weapons offenses based
primarily on surveillance videos showing him firing multiple
shots at two individuals standing near a liquor store and into a
bystander’s SUV. On appeal he contends the trial court erred by
permitting the investigating officer to identify him as the shooter
as the surveillance videos were shown to the jury. He also argues
the court committed other evidentiary error, the prosecutor
engaged in prejudicial misconduct during closing argument,
defense counsel provided constitutionally ineffective assistance
and he was improperly deprived of the advice of standby counsel
while representing himself at his preliminary hearing. Finally,
he contends he was wrongly convicted on two counts of shooting
at an occupied vehicle based on a single shot.
As for sentencing, Payne contends the trial court erred
when imposing sentencing enhancements as part of his aggregate
indeterminate state prison term of 144 years to life. In addition,
in supplemental briefing Payne argues, because the court
imposed the upper term of nine years for attempted murder as
the principal term of his sentence (doubled under the
three strikes law), he is entitled to resentencing pursuant to
Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731,
§ 1.3) (Senate Bill 567), enacted while Payne’s appeal was
pending, which amended the provisions of section 1170

2
concerning imposition of the upper, middle and lower terms of a
determinate sentencing triad.
We agree only with Payne’s sentencing arguments. We
affirm his convictions, vacate the sentence and remand the cause
with directions to the trial court to correct its previous errors and
to resentence Payne in accordance with the terms of all
applicable ameliorative legislation.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting Near Holiday Liquor
As shown on surveillance videos recovered from Holiday
Liquor (located on the south side of West Adams Boulevard near
South Longwood Avenue) and from a nearby church (located on
the southeast corner of West Adams and South Longwood), at
approximately 1:30 a.m. on May 13, 2018, as Henry Hall and
Leamon Perkins left the liquor store, a Chrysler Pacifica drove up
and parked along the south curb of West Adams. Three Black
males, including the driver, got out of the vehicle. Los Angeles
Police Detective Patrick Lane subsequently identified Payne as
the driver.
The Chrysler Pacifica’s two passengers passed Hall as they
went into the liquor store, and the men looked at each other
several times. Hall then walked past Payne, who had remained
outside. The two men exchanged glances before Payne entered
the store. After purchasing some items, Payne was standing in
the doorway when Hall and Perkins returned to the store.
Following an interchange between Hall and Payne, Payne and
his two companions walked back to their vehicle. Hall and
Perkins followed them. The minivan then drove away, and Hall
and Perkins returned to the liquor store.

3
 Approximately eight minutes later the Chrysler Pacifica,
driving northbound on Longwood, stopped just south of West
Adams Boulevard. An individual, holding a gun, emerged from
the front passenger seat, walked north on Longwood, turned the
corner onto Adams and walked toward the liquor store with the
gun up. The individual fired toward the store. Hall and Perkins,
who were standing outside the liquor store, dove to the ground.
Hall crawled back inside the liquor store. Perkins, hiding behind
a parked car, returned fire with his own weapon.
As shots were fired, Abel Montana and Gabriel Olivares
were sitting in Montana’s Honda SUV, which was parked on
Adams near Holiday Liquor. Olivares, sitting in the front
passenger seat, turned and saw a man standing two or three feet
behind the SUV shooting toward the liquor store. Montana also
saw a man on the sidewalk pointing a gun toward them.
(Olivares described the shooter he saw as a tall, stocky Black
man with heavy facial hair, including a mustache and goatee,
wearing baggy jeans, dark clothing and a hoodie. Montana
described the gunman he saw as Black, between five feet eight
inches and six feet tall, wearing dark pants and possibly a
sweater.) Just as Montana and Olivares began to drive from the
area (heading eastbound on Adams, toward the liquor store), the
rear passenger side window of the SUV shattered. Both Montana
and Olivares were shot: Montana in the right elbow; Olivares on
the tip of his nose.
After firing toward the SUV, the gunman walked back on
Adams toward Longwood. As he reached the corner, he turned
and appeared to fire again before running south on Longwood.
The Chrysler Pacifica then drove south on Longwood way from
the area.

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 When police officers responded to the scene, they found
Hall sitting outside the liquor store on the sidewalk with a
gunshot wound to his left forearm. Perkins had been shot in his
right knee.
During his investigation Detective Lane created a crime
flyer that included two full-body images of the suspected shooter
taken from the liquor store surveillance footage and a photograph
of a 2007 Chrysler Pacifica. On July 16, 2018 Detective Lane
interviewed Payne, who was in custody on an unrelated matter.
Detective Lane showed Payne the crime flyer. Payne
acknowledged it was his photograph. Payne also said he had the
same vehicle as depicted in the flyer.
2. The Preliminary Hearing
Payne elected to represent himself at his preliminary
hearing. Court-appointed standby counsel, Paul Cohen, was also
present in the courtroom.
At the outset of the hearing the court asked Payne if he had
a motion to exclude witnesses. Payne responded, “May I have a
moment to speak with my counsel?” The court replied, “You can’t
speak with standby counsel during the course of the preliminary
hearing.” Payne then answered, “No.” The prosecutor
subsequently asked the court to exclude witnesses, and the court
granted the motion, as well as the motion to designate Detective
Lane as the People’s investigating officer.
Toward the end of the preliminary hearing, after the
prosecutor had completed his presentation, the following
exchange took place:
“The Court: At this time, Mr. Payne, do you have any
affirmative defense you would like to put on? Meaning do you
wish to call any witnesses?

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 “The Defendant: I don’t wish to call any witnesses, but I
would like to ask for a brief recess.
“The Court: No. I’m not going to grant a recess. But I’ll let
you argue, if you wish to argue. So, do you have any argument at
this time?
“The Defendant: No, Your Honor. Self-argument, self-
defense.
“The Court: Well you can argue that you were acting in
self-defense.
“The Defendant: I want to argue that I was acting in self-
defense.”
Notwithstanding his statement, Payne did not present any
argument at that point. The court then proceeded to find
sufficient cause to hold Payne to answer and set bail at slightly
more than $8 million.
3. The Amended Information
Shortly after the preliminary hearing and concurrently
with the filing the original information on September 7, 2018,
Payne informed the court he no longer wished to represent
himself. Standby counsel Cohen was appointed to represent
Payne.
The People filed an amended information November 1,
2018, charging Payne with the attempted murder of Hall,
Perkins, Montana and Olivares (Pen. Code, §§ 187, subd. (a),
664)1 (counts 1-4); shooting at an occupied vehicle (§ 246)
(counts 7 and 8); possession of a firearm by a felon (§ 29800,
subd. (a)(1)) (count 5); and carrying a loaded, unregistered

1 Statutory references are to this code unless otherwise
stated.

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handgun (§ 25850, subd. (a)) (count 6). It was specially alleged as
to the six counts charging Payne with attempted murder and
shooting at an occupied vehicle that he had personally and
intentionally discharged a firearm proximately causing great
bodily injury within the meaning of section 12022.53,
subdivision (d), and that as to each of those counts he had
personally inflicted great bodily injury within the meaning of
section 12022.7, subdivision (a). The amended information
further alleged Payne had suffered a prior serious felony
conviction within the meaning of the three strikes law (§§ 667,
subds. (b)-(j), 1170.12) and section 667, subdivision (a).
4. Trial
Although both Hall and Perkins testified at trial, they each
claimed they could not remember any details of the shooting and
could not identify the shooter. Hall said he did not recall seeing
Payne at the liquor store that evening and denied ever having
seen him before. He also denied knowing Perkins.
Montana testified he was in “flight mode” as soon as he
heard two shots fired. Looking through the right passenger
window, where the sound had come from, Montana saw a man on
the sidewalk pointing a gun directly at his SUV. The gun looked
to Montana like a Glock (a semiautomatic firearm). Just as
Montana pulled away from the curb, he was shot in the right
arm.
Montana testified the gunshot that hit him came from the
rear passenger side on the right. Asked how he knew that,
Montana answered, “My windows have—they have gunshots in
them.” Montana did not get a good look at the shooter. Although
he gave the detectives a description of the man, he was unable to
identify him. Olivares’s testimony was similar to Montana’s. He,

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too, identified the firearm as a semiautomatic and generally
described the shooter, but was unable to identify him.
Detective Lane testified that he retrieved surveillance
video from four camera angles from Holiday Liquor, as well as
video from three different camera angles from the neighboring
church, from which he “splic[ed] together the entirety of what
happened.” As the video was played for the jury, the detective
summarized what he observed from the different camera angles.
After the court overruled defense counsel’s objection as to
foundation, Detective Lane identified Payne as the individual
who left the green Chrysler Pacifica from the driver’s seat. After
a few additional questions and answers describing what was
being shown on the video, the court held a sidebar conference
with counsel and directed the prosecutor to establish the basis for
Detective Lane’s identification of Payne. Questioned on this
point, Detective Lane explained he had been notified that
someone in the holding cell possibly matched the person being
sought for the shooting. Detective Lane “walked to the holding
cell, looked inside and identified him as our shooting suspect.”
The detective continued, “Once I had his name, I pulled DMV
photographs. And I used that to help me identify him as the
shooter.” The prosecutor inquired, “Would the court like
anything further?” The court responded, “No.”
Following Detective Lane’s explanation of his identification
of Payne, he continued his narration of the events depicted in
response to questions from the prosecutor. After the detective
described the shooting, the prosecutor asked, “You talked about
this person, the shooter. Did you ultimately identify that
shooter?” Detective Lane answered, “Yes.” When the prosecutor
then asked, “And who did you identify the shooter as,” defense

8
counsel objected (although not stating any basis for the
objection). The court interjected, “Let’s first indicate how and
why that—I mean, that’s just his opinion. The jurors will make
up their own mind whether or not he’s correct.”
Without any further objection the prosecutor asked, “Okay.
How did you make that determination?” Detective Lane then
described how, looking at the surveillance video and observing
Payne in the holding cell, he determined the man who emerged
from the driver’s seat of the Chrysler Pacifica was the same
individual who came around the corner of West Adams and South
Longwood and began shooting.
Detective Lane also described making the crime flyer with
photographs taken from the surveillance videos (admitted as
People’s exhibit 2) and showing the flyer to Payne when
interrogating him on July 16, 2018. Detective Lane asked Payne
if he recognized the person shown on the flyer. Payne replied,
“‘Yeah. That’s me,’ and . . . added, ‘But I drink a lot.’”2 According
to Detective Lane, Payne, when interviewed by the detective,
“looked exactly like the person in the video, the shooter. He had
longer hair. It was in the process of being, like dreadlocked. He
had a big, long goatee. He’s a big guy, I think six two, six three.
At that time 250- to 280-pound range.” Detective Lane confirmed
that Payne’s booking photograph (admitted as People’s
exhibit 38) was an accurate depiction of what Payne looked like
on July 16, 2018. By the time of trial Payne’s hair was short, and
he was clean-shaven and appeared to have lost some weight.

2 The interview was recorded and played for the jury.

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 Explaining why he believed the shooter was the same
individual as the driver of the Chrysler Pacifica (that is, Payne),
Detective Lane testified, “You can see that the shooter has put on
a dark-colored hoodie, but everything else is the same. He has a
light-colored T-shirt, black pants. He has light boots, tan boots.
You can see when he turns he’s got a big goatee, which matches
our defendant. . . . At one point the hoodie is not on. He’s got big
hair. He’s got a big goatee. He’s a big person. He’s got the light-
colored shirt, the dark pants, the light boots. And his build is
very, very similar. So I was able to—he’s wearing the exact same
stuff as the person in the [prior] photo . . . . And that person we
had a great face shot of, as you saw. That person ultimately
ended up in custody at the station that I work at unrelated.”
Payne did not testify in his defense. His girlfriend, Janae
Thompson, testified Payne had been with her in Ontario,
California, the entire weekend of May 12-13, 2018 (including the
night of the shooting) and did not travel to Los Angeles. She also
testified Payne did not have an operable car at that time and
always shaved his face. When asked on cross-examination if she
had told the defense investigator neither she nor Payne had cars,
Thompson responded, “I did tell him I didn’t have a car. And he
asked me how do I get around. And I said Uber.” She also
testified she attended most of Payne’s court proceedings,
including the preliminary hearing, but thereafter added she had
not been present when the prosecutor explained his theory of the
case or heard the testimony of any witnesses.
5. The Jury’s Verdict and Sentencing
The jury found Payne guilty on all eight charged offenses
and found true all the special allegations. Payne waived his right
to a bifurcated trial and admitted he had suffered a prior serious

10
felony conviction (voluntary manslaughter) as alleged in the
amended information.
The trial court sentenced Payne on March 21, 2019 to an
aggregate state prison sentence of 44 years plus 100 years to life.
On count 1 the court sentenced Payne to the upper term of nine
years for attempted murder, doubled to 18 years as a second
strike, plus three years for the great bodily injury enhancement,
doubled to six years, plus an indeterminate term of 25 years to
life for the firearm-use enhancement. The court then imposed
consecutive determinate terms for each of counts 2, 3 and 4 of
six years eight months (one-third the middle term of seven years
for attempted murder, doubled, plus one-third the three-year
enhancement for inflicting great bodily injury, doubled), plus
indeterminate terms of 25 years to life for the firearm-use
enhancement on each count.3
Payne filed a notice of appeal the same day he was
sentenced.
5. Postjudgment Notice of Defense Counsel’s Conflict
Shortly after Payne was sentenced, both the prosecutor and
Cohen notified the trial court that Cohen had a conflict of
interest. At a hearing on April 4, 2019 at which Payne, Cohen
and the prosecutor, as well as an attorney from the Los Angeles
County Bar Association’s independent defender program, were
present, the prosecutor explained his office had charged Cohen on

3 The court imposed the upper term of four years, doubled,
on count 5, possession of a firearm by a felon, and ordered that
sentence to run concurrently with the sentence on count 1. The
court stayed the sentences it imposed on counts 6, 7 and 8
pursuant to section 654 and struck the five-year prior serious
felony enhancement pursuant to section 667, subdivision (a).

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July 12, 2018 with misdemeanor violations of the Los Angeles
County Zoning and Building and Safety Codes “for unpermitted
development or structures”—a storage shed in an undeveloped
area of the county. The prosecutor added that he had been
unaware of the charges against Cohen before March 29, 2019
(that is, after sentencing had occurred).
The prosecutor advised the court a notice of appeal had
been filed, and Cohen reported Payne had retained private
counsel for his appeal. The court stated no further action was
necessary in superior court: “Since there is a notice of appeal and
there is an appellate attorney and since everybody has got notice
now of what any possible issue might be, it doesn’t appear that
any further appearances . . . are necessary in this court.”
DISCUSSION
1. The Court at the Preliminary Hearing Did Not Deprive
Payne of His Right To Counsel or Otherwise Err in
Denying Payne the Opportunity To Consult with Standby
Counsel
Relying on language from a 1972 tentative draft of
standards for trial judges from an American Bar Association
project, Payne’s original appellate counsel4 argued the court, at
Payne’s preliminary hearing, prejudicially erred by denying
Payne’s request to speak to standby counsel. However, “a
defendant who elects to represent himself or herself has no

4 After the case was fully briefed, Payne’s retained appellate
attorney moved to withdraw as counsel. We granted the motion
and appointed new appellate counsel. We subsequently granted
the new attorney’s requests to augment the appellate record and
authorized supplemental briefing by Payne and the Attorney
General.

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constitutional right to advisory or stand-by counsel or any other
form of ‘hybrid’ representation.” (People v. Garcia (2000)
78 Cal.App.4th 1422, 1430; see People v. Moore (2011) 51 Cal.4th
1104, 1119-1120, fn. omitted [“[A] defendant has no right, under
either the federal or state Constitution, to ‘hybrid representation.’
Criminal defendants have the constitutional right to have an
attorney represent them, and the right under the federal
Constitution to represent themselves, but these rights are
mutually exclusive”].)
Although Payne had no constitutional right to standby
counsel, the Superior Court of Los Angeles County, Local Rules,
rule 8.43(a) provides, “When a defendant is charged with a felony
and is granted pro per status, the court shall appoint standby
counsel within ten days after the arraignment on the information
or indictment, or as soon thereafter as practicable.” However,
rule 8.43(b) cautions, “Except at the request of the court, standby
counsel does not act as advisory counsel nor provide the
defendant with legal advice. Standby counsel is expected to take
over the trial in the event that the defendant’s pro per status is
revoked or relinquished.”
The court did not err by enforcing rule 8.43(b)’s limitation
on the role of standby counsel. (See People v. Williams (2013)
58 Cal.4th 197, 255 [“‘standby counsel . . . takes no active role in
the defense, but attends the proceedings so as to be familiar with
the case in the event that the defendant gives up or loses his or
her right to self-representation’”]; People v. Kurbegovic (1982)
138 Cal.App.3d 731, 757 [“the term ‘standby’ counsel generally
relates to an attorney’s being present to step in and represent an
individual no longer able to represent himself”]; see also People v.
Harrison (2013) 215 Cal.App.4th 647, 656 [explaining difference

13
between standby counsel and advisory counsel and holding, when
a self-represented defendant in a noncapital case “has not
requested advisory counsel, the trial court is under no obligation
to appoint one sua sponte”].)
In addition, as the Attorney General points out, Payne
requested to speak with standby counsel when the court asked if
Payne wanted to move to exclude prospective witnesses during
testimony at the preliminary hearing. Because the court granted
the prosecutor’s motion to exclude all prospective witnesses after
Payne declined to do so, any advice standby counsel might have
given Payne on that point was moot. Payne fails to suggest any
other possible prejudice (that is, affecting the outcome of the
preliminary hearing) that could have resulted from his inability
to speak to standby counsel. (See Cal. Const., art. VI, § 13
[prohibiting reversal of a judgment unless the error has resulted
in a “miscarriage of justice”]; People v. Doolin (2009) 45 Cal.4th
390, 420 [“‘[a]ll trial court error under California law is governed
by article VI, section 13 of the California Constitution’”].)
2. The Trial Court Did Not Abuse Its Discretion in
Permitting Detective Lane To Narrate the Surveillance
Videos and Identify Payne as the Shooter
Payne contends Detective Lane’s narration of the
surveillance videos from Holiday Liquor and the neighboring
church, and in particular his identification of Payne as the driver
of the Chrysler Pacifica when it first approached the liquor store
and the individual who thereafter shot Hall and Perkins and the
occupants of the SUV, should have been excluded as improper lay
opinion testimony.5 To the extent Detective Lane’s testimony

5 The Attorney General argues Payne forfeited the claim
because defense counsel failed to timely object to Detective Lane’s

14
explained how he combined the videos from two locations and
seven cameras to develop a unified, coherent account of the crime
and how what was depicted from one camera angle related to
what was displayed from another, any opinions he may have
expressed were rationally based on his perception and helpful to
a clear understanding of his testimony and, therefore, properly
admitted under Evidence Code section 800. (See People v. Leon
(2015) 61 Cal.4th 569, 601 (Leon) [“[a] lay witness may offer
opinion testimony if it is rationally based on the witness’s
perception and helpful to a clear understanding of the witness’s
testimony”].) Permitting Detective Lane to identify Payne as the
shooter in the surveillance videos was also well within the trial
court’s discretion. (See id. at p. 600 [ruling permitting
identification of defendant from surveillance video is reviewed for
abuse of discretion]; People v. Thompson (2016) 1 Cal.5th 1043,
1120 [as a general matter appellate courts “apply ‘the abuse of
discretion standard of review to any ruling by a trial court on the
admissibility of evidence’”].)
In Leon, supra, 61 Cal.4th 569 the Supreme Court held the
identity of a person is a proper subject of nonexpert opinion (id.

testimony on this specific ground. (See Evid. Code, § 353.) Given
defense counsel’s initial objection and the extended discussions
among the trial court, the prosecutor and defense counsel while
Detective Lane was being examined concerning the surveillance
videos, as well as the court’s repeated directions to the prosecutor
as to the manner in which the testimony should properly be
elicited, we believe the issue is properly before us. (See People v.
Champion (1995) 9 Cal.4th 879, 908, fn. 6 [“[b]ecause the
question whether defendants have preserved their right to raise
this issue on appeal is close and difficult, we assume [they] have
preserved their right, and proceed to the merits”].)

15
at p. 601) and affirmed the trial court’s ruling permitting a
detective to identify the defendant as the person shown on
surveillance videos of two robberies. (Ibid. [courts “have long
upheld admission of testimony identifying defendants in
surveillance footage or photographs”].) The Leon Court expressly
rejected as “a distinction without a difference” the defendant’s
contention, based on the facts of earlier court of appeal decisions,
that the identification by the officer was improper because he had
no familiarity with the defendant before the crime occurred,
meeting him for the first time after his arrest: “It is undisputed
[the detective] was familiar with defendant’s appearance around
the time of the crimes. Their contact began when defendant was
arrested, one day after the Valley Market robbery. Questions
about the extent of [the detective’s] familiarity with defendant’s
appearance went to the weight, not the admissibility, of his
testimony.” (Ibid.)
Further explaining its ruling, the Supreme Court noted the
detective’s identification was helpful to the jury because
“[w]itnesses who identified defendant in lineups held many
months after the crimes noted that defendant was heavier, had
shorter hair, and no longer wore a mustache.” (Leon, supra,
61 Cal.4th at p. 601.) In addition, “because the surveillance video
was played for the jury, jurors could make up their own minds
about whether the person shown was defendant.” (Ibid.) The
Court concluded, “Because [the detective’s] testimony was based
on his relevant personal knowledge and aided the jury, the court
did not abuse its discretion by admitting it.” (Ibid.)
Attempting to distinguish Leon, Payne points out that his
arrest and interview with Detective Lane took place
approximately two months after the shooting outside Holiday

16
Liquor, while the Leon defendant had been arrested the day after
the second of the two robberies. But as the Supreme Court
explained, the extent of the detective’s familiarity with the
defendant, and therefore the accuracy of his identification, went
to the weight, not the admissibility of the testimony. (Leon,
supra, 61 Cal.4th at p. 601.) As in Leon, the video was played for
the jury, which could evaluate for itself whether the shooter was
Payne, as the trial court expressly stated during Detective Lane’s
testimony. In addition, Detective Lane testified Payne had
changed his appearance by the time of trial (he was clean-shaven
and had lost weight), as had the suspect in Leon; and Payne’s
booking photograph was in evidence, so the jury was also able to
evaluate whether Payne in July 2018, when Detective Lane first
met him, looked similar to, or different from, the suspect in the
surveillance videos. Finally, Detective Lane’s identification was
confirmed by Payne himself, who acknowledged the photographs
on the crime flyer, taken from the surveillance videos, were of
him.
3. The Trial Court Did Not Abuse Its Discretion in
Admitting Payne’s Preliminary Hearing Statement
Concerning Self-defense
Over Payne’s objection the prosecution read to the jury
Payne’s statement at his preliminary hearing, where he was
representing himself, that he wanted to argue he had been acting
in self-defense (although no such argument was made).6 On

6 Defense counsel argued Payne likely did not understand
what he was saying, pointing out Payne had initially said, “Self-
argument. Self-defense”; asserted it was not reasonable to infer
Payne intended to concede he had been at the scene and fired his
gun but that someone had shot at him first; and complained, “I
don’t see how it—it’s right that it should come back to bite him.”

17
appeal Payne contends the trial court abused its discretion under
Evidence Code section 352 by admitting the statement into
evidence, arguing it was not clear what Payne was talking about
since he initially referred to “self-argument” and presented no
defense of any sort at the preliminary hearing, thereby severely
limiting the probative value of the statement, and the inference
that Payne thereby admitted he was the shooter was
substantially more prejudicial than probative.
Payne’s argument misapprehends the broad scope of the
trial court’s discretion under Evidence Code section 352 and the
nature of the undue prejudice that justifies excluding otherwise
relevant evidence. (See People v. Clark (2016) 63 Cal.4th 522,
586 [“‘Under Evidence Code section 352, the trial court enjoys
broad discretion in assessing whether the probative value of
particular evidence is outweighed by concerns of undue prejudice,
confusion or consumption of time.’ [Citation.] ‘A trial court’s
discretionary ruling under Evidence Code section 352 will not be
disturbed on appeal absent an abuse of discretion’”]; People v.
Tran (2011) 51 Cal.4th 1040, 1047 [“‘[e]vidence is substantially
more prejudicial than probative [citation] [only] if, broadly stated,
it poses an intolerable “risk to the fairness of the proceedings or
the reliability of the outcome”’’’].) “The circumstance that
evidence is adverse to a defendant’s case does not render it
prejudicial within the meaning of section 352. [Citation.] In
applying this statute we evaluate the ‘risk of “undue” prejudice,

Although not actually cited by counsel, we interpret his
somewhat unartful objection as contending the probative value of
the statement was substantially outweighed by the danger it
would create undue prejudice within the meaning of Evidence
Code section 352.

18
that is, “‘evidence which uniquely tends to evoke an emotional
bias against the defendant as an individual and which has very
little effect on the issues,’” not the prejudice “that naturally flows
from relevant, highly probative evidence”’” (People v. Salcido
(2008) 44 Cal.4th 93, 148.)
Contrary to defense counsel’s contention, Payne’s
statement at the preliminary hearing that he wished to argue
self-defense, while certainly ill-advised, was not entirely
irrational or misleading. After all, there was evidence from the
surveillance videos that Perkins had fired his weapon. Payne’s
statement was relevant within the meaning of Evidence Code
section 210 (it tended to prove a disputed fact of consequence)
and admissible notwithstanding the hearsay rule as a party
admission under Evidence Code section 1220. And the prejudice
to Payne from admitting the statement was its tendency to prove
his guilt—damage that flowed from the reason the statement was
relevant, not because it would inflame the emotions of the jury.
(See People v. McCurdy (2014) 59 Cal.4th 1063, 1098 [“[e]vidence
is prejudicial within the meaning of Evidence Code section 352 if
it uniquely tends to evoke an emotional bias against a party as an
individual [citations] or if it would cause the jury to prejudg[e] a
person or cause on the basis of extraneous factors,” internal
quotation marks omitted]; People v. Cowan (2010) 50 Cal.4th 401,
475 [same]; see also People v. Riggs (2008) 44 Cal.4th 248, 290
[“‘[e]vidence is substantially more prejudicial than probative
[citation] if, broadly stated, it poses an intolerable “risk to the
fairness of the proceedings or the reliability of the outcome”’”].)
There was no abuse of discretion in admitting Payne’s statement.

19
 4. The Prosecutor’s Comments in Closing Argument
Concerning Inconsistencies in Thompson’s Testimony
Did Not Constitute Misconduct
During his initial closing argument the prosecutor attacked
Thompson’s credibility, identifying several inconsistencies in her
testimony, labeling it as “the changing narrative of the
defendant’s story about what happened and where he was and
what he did,” and concluding, “Ultimately, what she fed you [was]
a load of lies.” Payne contends the prosecutor misrepresented
aspects of Thompson’s testimony, creating inconsistencies where
none existed, and asserts the argument constituted prejudicial
misconduct. Payne focuses on what he asserts were two specific
misstatements—that Thompson had falsely told the defense
investigator neither she nor Payne owned cars and that she
testified she had attended all pretrial hearings but later claimed
she was not present at the preliminary hearing when witnesses
testified or a separate hearing at which the prosecutor explained
his theory of the case.
Even if this issue were not forfeited because Payne neither
objected to the closing argument nor requested a curative
admonition (see, e.g., People v. Charles (2015) 61 Cal.4th 308, 327
[“‘“[t]o preserve a claim of prosecutorial misconduct for appeal, a
defendant must make a timely and specific objection and ask the
trial court to admonish the jury to disregard the improper
argument”’”]; People v. Williams (2013) 58 Cal.4th 197, 274
[same]),7 the prosecutor’s challenge to the believability of

7 The forfeiture doctrine does not apply when an objection
would have been futile or a request for an admonition would not
have cured the harm (see People v. Seumanu (2015) 61 Cal.4th
1293, 1328-1329). Payne points to nothing in the record that

20
Thompson’s testimony was a fair comment on the evidence.
(See People v. Edwards (2013) 57 Cal.4th 658, 736 [“[a]
prosecutor’s ‘argument may be vigorous as long as it is a fair
comment on the evidence, which can include reasonable
inferences or deductions to be drawn therefrom’”]; People v. Hill
(1998) 17 Cal.4th 800, 823 [same].)
As to the first purported misstatement, the thrust of the
prosecutor’s comment was not that Thompson had significantly
changed her story from what she told the defense investigator
(whether Payne did not have a car, meaning he did not own one,
or his car was not in working condition, as Thompson testified at
trial, is hardly a material distinction), but that Thompson was
including details in her narrative to bolster Payne’s alibi. (The
prosecutor told the jury, “She threaded the needle as best as she
could to create a story that would minimize the defendant’s
liability in this case,” and observed that adding Payne had driven
his grandmother’s car the weekend of the shooting, rather than
his Chrysler Pacifica, was “kind of a strange thing to raise.”)
Even if slightly inaccurate (because Thompson’s description
would tend to exculpate Payne), the prosecutor’s comment
concerning this aspect of Thompson’s testimony does not
constitute “‘“the use of deceptive or reprehensible methods to
attempt to persuade either the trial court or the jury”’” necessary
for a finding of prosecutorial error justifying reversal of a
conviction because it rendered the criminal trial fundamentally
unfair. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1331-
1332; cf. People v. Redd (2010) 48 Cal.4th 691, 742 [“‘[i]t is, of

suggests it would have been futile for defense counsel to object or
request that the court admonish the jury to address any
perceived mischaracterization of Thompson’s testimony.

21
course, improper to make arguments to the jury that give it the
impression that “emotion may reign over reason,” and to present
“irrelevant information or inflammatory rhetoric that diverts the
jury’s attention from its proper role, or invites an irrational,
purely subjective response”’”].)
Similarly, the prosecutor’s insistence that it was
unreasonable for Thompson to testify she had attended all of
Payne’s court proceedings, but then to deny she had been present
when the prosecutor explained the theory of the case or at the
portion of the preliminary hearing where witnesses testified, was
part of his explanation that she knew the case against Payne and
tailored her story of his alibi to fit those facts. Although
Thompson testified she had attended most, but not all, of the
pretrial hearings, she did acknowledge being present at the
preliminary hearing while insisting she had not heard any
explanation of the People’s case or any witnesses testify. The
slight variance between Thompson’s actual testimony and the
prosecutor’s summary falls far short of being deceptive or
reprehensible.8

8 Because we conclude the challenged comments did not
constitute prosecutorial misconduct, we need not address Payne’s
argument defense counsel was ineffective for failing to object.
(See People v. Thompson (2010) 49 Cal.4th 79, 122 [“[c]ounsel is
not ineffective for failing to make frivolous or futile motions”];
People v. Cudjo (1993) 6 Cal.4th 585, 616 [counsel’s failure to
object cannot constitute ineffective assistance when there was no
sound legal basis for an objection].) We note, however, that
defense counsel responded to the prosecutor’s comments during
his closing argument, emphasizing that the prosecutor had not
called the defense investigator to testify about Thompson’s
alleged inconsistent statements—suggesting he had a tactical
reason for choosing not to object. (See generally People v.

22
 5. Substantial Evidence Supported Two Convictions for
Shooting at an Occupied Vehicle
a. Procedural background
Section 246 provides, “Any person who shall maliciously
and willfully discharge a firearm at an inhabited dwelling house,
occupied building, occupied motor vehicle . . . is guilty of a
felony.” As discussed, Payne was charged with two counts of
violating section 246: Counts 7 and 8 of the amended information
alleged in identical language, “On or about May 13, 2018, in the
County of Los Angeles, the crime of shooting at occupied motor
vehicle, in violation of Penal Code section 246, a felony, was
committed by Kevin Anthony Payne, Jr., who did willfully,
unlawfully, and maliciously discharge a firearm at an occupied
motor vehicle.” (Nonstandard capital letters omitted.) No
individual was identified as a victim of either offense.
The trial court instructed the jury with CALCRIM No. 965,
advising the jury Payne was charged in counts 7 and 8 with
shooting at an occupied vehicle. The instruction continued, “To
prove that the defendant is guilty of this crime, the People must
prove that: [¶] 1. The defendant willfully and maliciously shot a
firearm. [¶] 2. The defendant shot the firearm at an occupied
motor vehicle; [¶] AND [¶] 3. The defendant did not act in self-
defense.” As was true with the amended information, the
instruction did not indicate there was a victim for either offense,
and the court did not include an explanation why there were two

Gamache (2010) 48 Cal.4th 347, 391 [on a direct appeal a
conviction will be reversed for ineffective assistance of counsel
only when the record demonstrates there could have been no
rational tactical purpose for counsel’s challenged act or omission];
People v. Anderson (2001) 25 Cal.4th 543, 569 [same].)

23
counts of violating section 246 and what was necessary for the
People to prove both counts.
In his closing argument the prosecutor told the jury, “The
defendant is charged with two counts of shooting at an occupied
motor vehicle. He’s charged with two counts because there were
two individuals, two victims seated in Gabriel Olivares’s Honda
Passport. Gabriel Olivares and Abel Montana. I apologize. I
meant Abel Montana’s Honda Passport.” However, the
prosecutor continued, “You saw from the video that, as the
defendant leaned over, he fired several times.” Elsewhere in his
argument the prosecutor again indicated more than one shot had
been fired in the direction of the SUV, stating Payne had fired
“those rounds at Abel Montana and Gabriel Olivares, striking
both of them.”
The verdict forms provided to the jury for counts 7 and 8
simply described the offense as shooting at an occupied motor
vehicle, again without identifying a victim. However, the
firearm-use and great bodily injury sentencing enhancements for
count 7 referred to Montana and for count 8 referred to Olivares.
The jury found those enhancements true on both counts.
b. Two counts with one shot and two occupants
On appeal Payne argues he was wrongfully convicted on
two counts of violating section 246 based on the presence of
two individuals in the vehicle. In support of this argument Payne
relies on Wilkoff v. Superior Court (1985) 38 Cal.3d 345, which
held one instance of drunk driving is chargeable as only one
count of felony drunk driving “even if more than one person is
injured thereby.” (Id. at p. 349.) The Supreme Court explained,
“[A] charge of multiple counts of violating a statute is appropriate
only when the actus reus prohibited by the statute—the

24
gravamen of the offense—has been committed more than once.
The act prohibited by [Vehicle Code] section 23153 is the act of
driving a vehicle while intoxicated and, when so driving, violating
any law in relation to the driving of a vehicle.” (Ibid.) Later in
its opinion, the Court reiterated, “A defendant may properly be
convicted of multiple counts for multiple victims of a single
criminal act only where the act prohibited by the statute is
centrally an ‘act of violence against the person.’” (Id. at p. 351.)
Shooting at an occupied vehicle may have deadly consequences,
but, Payne contends, it is not primarily an act of violence against
the person.
The Attorney General disagrees, arguing, because the actus
reus prohibited by section 246 involves a violent act against the
person, a single shot at a vehicle occupied by two people is
properly the basis for two convictions. In support he cites People
v. Hansen (1994) 9 Cal.4th 300, 309-310, which held the willful
discharge of a firearm at an inhabited dwelling is an inherently
dangerous felony for purposes of the second degree felony-murder
rule, and this court’s decision in People v. Cruz (1995)
38 Cal.App.4th 427, 434, which held the defendant was properly
sentenced for both an aggravated assault and discharging a
firearm at an occupied building based on having fired four shots
at a security officer who was standing in front of an occupied
building together with “‘children and other people.’” We
explained the security guard was a victim of both crimes, but the
children and other individuals “were at risk from bullets and
flying glass” and thus were also victims of the second crime,
justifying the imposition of (concurrent) sentences for both
offenses without violating section 654.

25
 Neither of these cases is particularly helpful to the
Attorney General’s position. Much more to the point is People v
Overman (2005) 126 Cal.App.4th 1344, which held section 246
“proscribes shooting either directly at or in close proximity to an
inhabited or occupied target under circumstances showing a
conscious disregard for the probability that one or more bullets
will strike the targets or persons in or around it.” (Id. at
p. 1356.)9 In reaching this result, the Overman court explained
section 246 is a general intent crime and its focus is not
commission of a violent act against a person: “Section 246 does
not require a specific intent ‘“to do a further act or achieve a
future consequence”’ beyond the proscribed act of shooting ‘at’ an
occupied building or other proscribed target. [Citation.] In other
words, the statute does not require a specific intent to achieve a
particular result (e.g., strike an inhabited or occupied target, kill
or injure).” (Overman, at p. 1357.) Similarly, in In re Daniel R.
(1993) 20 Cal.App.4th 239 we held, “[T]he gravamen of a
section 246 violation is firing at the occupied vehicle. While the
potential for injury to persons is implied in the statutory
requirement the vehicle be occupied, the probability of injury is
not the primary focus of the crime unlike an assault with a
deadly weapon.” (Id. at p. 246, fn. omitted.)
That section 246 is properly interpreted as not primarily
prohibiting an “‘act of violence against the person’” is reinforced
by the Supreme Court’s decision in People v. Rodriguez (1986)

9 People v. Overman, supra, 126 Cal.App.4th 1344 and People
v. Chavira (1970) 3 Cal.App.3d 988, which similarly held
section 246 was violated by shooting in close proximity to a
proscribed target, were cited with approval in People v. Manzo
(2012) 53 Cal.4th 880, 888.

26
42 Cal.3d 1005, 1018, which held section 246 was violated by
shooting at an “inhabited dwelling house” if there were
permanent residents of the building even though no one was
present at the time of the crime. (See also People v. Manzo (2012)
53 Cal.4th 880, 886 [explaining that the 1976 amendment to
section 246 “was intended to strengthen the law prohibiting
discharge of a firearm at a motor vehicle, which at that time
required (for felony purposes) a showing the shooter intended to
cause great bodily harm”; “[t]he bill’s supporters believed that the
act of discharging a firearm at an occupied vehicle, even in the
absence of an intent to cause great bodily harm, was serious
enough to warrant felony punishment”].)
In sum, we agree with Payne that maliciously and willfully
discharging a firearm only once at an occupied vehicle is a single
offense regardless of the number of occupants of the vehicle. As
was true in Wilkoff v. Superior Court, supra, 38 Cal.3d at
page 352, “[t]he actus reus of the offense does not include causing
bodily injury.” That conclusion, however, does not resolve the
question whether Payne was wrongfully convicted on two counts
of violating section 246.
c. Two counts with two shots (regardless of the number
of occupants)
Although the prosecutor at one point argued (incorrectly)
Payne was guilty on two counts of shooting at an occupied vehicle
because both Montana and Olivares were in the SUV (and both
suffered great bodily injury as a result), the prosecutor repeatedly
pointed to evidence that Payne had fired several times at the
SUV, shooting “those rounds” at the vehicle. That summary of
the evidence was supported by muzzle flashes visible on the
surveillance videos, as well as Montana’s testimony the windows

27
of his SUV had “gunshots”—plural—in them, not just a single
bullet hole. As the Attorney General argues, Payne’s assertion in
his opening brief that “[t]he gravamen of the offense was
committed only once” is not compelled by the evidence.
In his reply brief Payne does not dispute that firing
two shots at an occupied vehicle will support two counts of
violating section 246, but argues that was not the legal theory on
which the case was tried, again quoting the prosecutor’s comment
that there were two counts because there were two victims.
However, the trial court did not instruct the jury a single shot
could be the basis for both counts 7 and 8;10 and the prosecutor
did not argue he only needed to prove a single shot had been fired
by Payne to support a guilty verdict on both counts. To the
contrary, as discussed, although the prosecutor emphasized there
were two victims (necessary for the great bodily injury
enhancements), he also described the evidence that multiple
shots had been fired by Payne at the SUV. And nothing in the
jury’s verdict, unlike the situation described in People v. McCoy
(2012) 208 Cal.App.4th 1333, 1339, cited by Payne, indicated it
made specific findings that are inconsistent with a legally correct
determination that Payne was guilty of two separate violations of
section 246.
Additionally, in his discussion of the prosecutor’s theory of
the case, Payne omits any reference to the fact he was charged
and convicted of the attempted murder of Montana and Olivares,

10 In People v. Kunkin (1973) 9 Cal.3d 245, 251, which Payne
cites to support his argument, the Supreme Court held only that
an appellate court cannot look to legal theories not included in
the trial court’s instructions to determine if substantial evidence
supports the jury’s verdict.

28
as well as Hall and Perkins. As to those counts the trial court
instructed, using CALCRIM No. 600, the People needed to prove
“that the defendant not only intended to kill Henry Hall and
Leamon Perkins, but also intended to kill Henry Hall, Leamon
Perkins, Gabriel Olivares, and Abel Montana, or intended to kill
everyone within the kill zone.” Discussing the video evidence in
support of those counts, the prosecutor argued, “He knew he still
had rounds in his gun when he turned over at Gabriel Olivares
and Abel Montana and continued firing. . . . He fires those last
two to three shots sort of willy-nilly into the street as the cars are
driving by. The defendant is what you call an expert marksman
here. He hit four targets dead-on, four moving targets. It’s not
easy firing a gun. And [you] don’t accidentally hit four people
when you fire all these rounds.” Turning to the firearm-use
enhancements alleged in connection with the section 246 counts,
as well as attempted murder, the prosecutor continued, “[T]he
defendant did, in fact, personally discharge that weapon. You see
it in the videos. You see him firing off multiple shots toward
Holiday Liquor and then multiple shots toward the Honda
Passport.” In sum, there can be no doubt the People’s theory of
the case—consistent with the trial court’s instructions—was that
Payne fired multiple shots at Montana’s SUV.
Finally, while conceding in his reply brief multiple shots
were fired during the May 13, 2018 incident, Payne also asserts
in his reply brief there was no clear evidence he fired more than
one shot at Montana’s SUV. Payne has forfeited this substantial
evidence argument by not properly raising it in his opening brief.
(See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9; People v.
Harris (2008) 43 Cal.4th 1269, 1290.) But in any event, under
the deferential standard of review when considering a claim of

29
insufficient evidence in a criminal case (see, e.g., People v.
Penunuri (2018) 5 Cal.5th 126, 142), a finding Payne had fired
multiple shots at the SUV was supported by Detective Lane’s
testimony and the surveillance videos. Specifically,
Detective Lane explained the video showed that the shooter
turned toward the SUV followed by “muzzle flashes.” The
prosecutor then asked whether the detective had ruled out other
sources of the bullets that struck the SUV and wounded Montana
and Gabriel. Detective Lane responded affirmatively, testifying
that, although the video showed Perkins had also fired shots as
the SUV drove toward him, the location of the gunshot damage to
the SUV and the nature of the injuries suffered by Montana and
Gabriel (including the entry point of the bullet that hit Montana)
“allowed me to rule out that the shots fired from Leamon Perkins
were not the ones that caused the damage to the vehicle or their
injuries, the occupants’ injuries.”
6. Defense Counsel’s Conflict Did Not Adversely Affect
Payne’s Defense
“Both the United States Constitution and the California
Constitution guarantee criminal defendants the right to the
assistance of counsel unburdened by any conflicts of interest.
[Citation.] Essentially, a claim of conflict of interest constitutes a
form of ineffective assistance of counsel. [Citations.] In order to
demonstrate a violation of the federal and state Constitutions
based on a conflict of interest, a defendant must show that his or
her counsel was burdened by an ‘actual’ conflict of interest—one
that in fact adversely affected counsel’s performance. [Citation.]
When determining whether counsel’s performance was
‘“adversely affected”’ by the purported conflict under this
standard, we consider whether ‘“counsel ‘pulled his punches,’ i.e.,

30
whether counsel failed to represent defendant as vigorously as he
might have, had there been no conflict.”’ [Citation.] This
analysis will often turn on choices that a lawyer could have made,
but did not make. In order to determine whether those choices
resulted from the alleged conflict of interest, we must analyze the
record to determine whether a lawyer who did not face the same
conflict would have made different choices as well as whether
counsel’s choices were the product of tactical reasons rather than
the alleged conflict of interest.” (People v. Perez (2018) 4 Cal.5th
421, 435-436; see People v. Doolin, supra, 45 Cal.4th at p. 418
[“‘[W]here a conflict of interest causes an attorney not to do
something, the record may not reflect such an omission. We must
therefore examine the record to determine (i) whether arguments
or actions omitted would likely have been made by counsel who
did not have a conflict of interest, and (ii) whether there may
have been a tactical reason (other than the asserted conflict of
interest) that might have caused any such omission’”].)
Payne’s trial counsel, who had been charged with
misdemeanor violations of county zoning and building codes by
the same entity that was prosecuting Payne, had a conflict of
interest. (E.g., Harris v. Superior Court (2014) 225 Cal.App.4th
1129, 1138.) The Attorney General does not contend otherwise.
However, the Attorney General argues, and we agree, Payne has
failed to show defense counsel’s performance was adversely
affected by the conflict.
Payne argues defense counsel unburdened by a conflict
would have properly (and successfully) objected to Detective
Lane’s identification of Payne as the shooter in the surveillance
videos and the admission of his preliminary hearing statement
that he wanted to argue he had acted in self-defense during the

31
May 13, 2018 incident. As discussed, however, the trial court did
not prejudicially err in allowing Detective Lane’s testimony and
admitting into evidence Payne’s preliminary hearing statement.
Any purported failures by defense counsel with respect to those
issues, whether tactical or not, did not adversely affect Payne’s
case. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254,
309-310 [“[u]nder the federal precedents, which we have also
applied to claims of conflict of interest under the California
Constitution, a defendant is required to show that counsel
performed deficiently and a reasonable probability exists that,
but for counsel’s deficiencies, the result of the proceeding would
have been different”].) Similarly, because Payne was properly
found guilty on two counts of shooting at an occupied vehicle, the
suggestion defense counsel failed to vigorously assert Payne’s
rights in the trial court, for example by objecting to the
prosecutor’s remark there were two counts because there were
two victims, did not prejudice Payne.
As we explain in the following section, defense counsel
failed to recognize the trial court’s sentencing errors in
calculating and imposing the section 12022.7 great bodily injury
enhancements. But the prosecutor made the same errors (in both
his original and supplemental sentencing memoranda), as did the
experienced trial judge; and Payne’s original appellate counsel
apparently did not identify the mistake because she did not raise
it in her briefing. Under the circumstances defense counsel’s
deficient performance cannot reasonably be attributed to his
purported divided loyalties, rather than to a lack of knowledge of
the intricacies of sentencing law, shared by all other participants
in the case.

32
 7. The Court Improperly Imposed the Great Bodily Injury
Enhancement in Addition to the Section 12022.53,
Subdivision (d), Firearm-use Enhancements
On each of the attempted murder counts the trial court
imposed the enhancement for personally and intentionally
discharging a firearm proximately causing great bodily injury
pursuant to section 12022.53, subdivision (d), and the great
bodily injury enhancement pursuant to section 12022.7,
subdivision (a). Section 12022.53, subdivision (f), however,
provides, “An enhancement for great bodily injury as defined in
Section 12022.7 . . . shall not be imposed on a person in addition
to an enhancement imposed pursuant to subdivision (d).”
Accordingly, the great bodily injury enhancements must be
stayed on counts 1 through 4. (People v. Gonzalez (2008)
43 Cal.4th 1118, 1129-1130 [trial court is to impose and stay
execution of any additional enhancements covered by
section 12022.53, subdivision (f)].)
In addition, as Payne argues and the Attorney General
concedes, the trial court also erred in doubling the great bodily
injury enhancements based on Payne’s prior strike conviction.
(People v. Sok (2010) 181 Cal.App.4th 88, 93-94 [“enhancements
are added after the determination of the base term and are not
doubled”]; People v. Hardy (1999) 73 Cal.App.4th 1429, 1433
[“[i]n sentencing a defendant who has one prior strike, the court
may not double any enhancements it imposes”].) The correct
term to be imposed and stayed is three years on count 1 and
one year on counts 2 through 4.
8. Payne Is Entitled To Be Resentenced in Accordance with
the Requirements of Amended Section 1170
Prior to January 1, 2022, section 1170, subdivision (b),
provided in part: “When a judgment of imprisonment is to be

33
imposed and the statute specifies three possible terms, the choice
of the appropriate term shall rest within the sound discretion of
the court. . . . The court shall select the term which, in the court’s
discretion, best serves the interests of justice.” (See People v.
Sasser (2015) 61 Cal.4th 1, 8; People v. Estrada (2020)
58 Cal.App.5th 839, 843.) As amended by Senate Bill 567,
effective January 1, 2022, this provision now reads: “(1) When a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph (2). [¶]
(2) The court may impose a sentence exceeding the middle term
only when there are circumstances in aggravation of the crime
that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(1), (2).)
In addition, new section 1170, subdivision (b)(6), specifies,
notwithstanding subdivision (b)(1), “unless the court finds that
the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be
contrary to the interests of justice, the court shall order
imposition of the lower term” if any of a series of enumerated
factors contributed to the commission of the crime, including the
defendant had experienced psychological, physical or childhood
trauma. (§ 1170, subd. (b)(6)(A).)11

11 Section 1170, subdivision (b)(7), provides, “Paragraph (6)
does not preclude the court from imposing the lower term even if

34
 As discussed, the trial court sentenced Payne to the upper
term of nine years for the attempted murder charged in count 1
(based on section 664’s five-, seven- or nine-year triad), which
was then doubled under the three strikes law. When imposing
the upper term, the court explained, “[G]iven the multiple victims
and the facts as came out in the trial of the indiscriminate
shooting involved in this case at people, . . . this is a high term
case.”
Payne contends, and the Attorney General concedes, when
Senate Bill 567 went into effect on January 1, 2022, Payne’s
judgment was not yet final12 and the ameliorative aspects of the
legislation apply retroactively to him. (See People v. Flores (2021)
73 Cal.App.5th 1032, 1039 [“the amended version of section 1170,
subdivision (b) . . . applies retroactively in this case as an
ameliorative change in the law applicable to all nonfinal
convictions on appeal”]; see generally People v. Esquivel (2021)
11 Cal.5th 671, 674 [“‘When the Legislature amends a statute so
as to lessen the punishment[,] it has obviously expressly
determined that its former penalty was too severe and that a
lighter punishment is proper as punishment for the commission
of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply

there is no evidence of those circumstances listed in
paragraph (6) present.”
12 “‘[F]or the purpose of determining the retroactive
application of an amendment to a criminal statute, a judgment is
not final until the time for petitioning for a writ of certiorari in
the United States Supreme Court has passed.’” (People v. Vieira
(2005) 35 Cal.4th 264, 306.)

35
to every case to which it constitutionally could apply. The
amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the
judgment convicting the defendant of the act is not final’”]; People
v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307; In re Estrada
(1965) 63 Cal.2d 740, 745.)
In his initial supplemental brief addressing Senate
Bill 567, Payne argued, because one of the trial court’s reasons
for imposing the upper term was the “facts as they came out at
trial”—facts that were neither found by the jury nor admitted by
Payne—he was entitled to resentencing. The Attorney General
argued in response that any error was harmless because the jury
did find there were multiple victims, the court’s other reason for
imposing the upper term (it convicted Payne on four counts of
attempted murder), and the evidence from the surveillance videos
depicting Payne’s indiscriminate shooting was so overwhelming
that a jury unquestionably would have found that aggravating
factor true.
In a further supplemental brief, which we permitted Payne
to file after oral argument, he suggests, without citation of
authority or substantive analysis, that the harmless error
doctrine does not apply to his request for resentencing under the
provisions of Senate Bill 567. He also argues for the first time
that, because his probation report indicated in connection with
his prior criminal history that he had been classified with the
special handling code of “mentally disturbed,” he may be entitled
to a presumption under new section 1170, subdivision (b)(6), that
the lower term on count 1 for attempted murder should have
been imposed.

36
 Payne’s contention notwithstanding, the California
Constitution mandates that we evaluate prejudice (harmless
error) before reversing a judgment. (Cal. Const., art. VI, § 13
[“[n]o judgment shall be set aside, or new trial granted, in any
cause . . . for any error as to any matter of procedure, unless,
after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice”]; People v. Cahill (1993)
5 Cal.4th 478, 511 [“in view of the language and history of the
specific provision of the California Constitution governing the
question of reversible error [citation], we conclude that a rule of
automatic reversal is not warranted under California law”].) And
there is at least some merit to the Attorney General’s argument
that any error in imposition of the upper term for attempted
murder before Senate Bill 567’s effective date was harmless.
Although, as Payne notes, there was no true finding
regarding “indiscriminate shooting,”13 a single factor in
aggravation (multiple victims) established in a manner consistent
with amended section 1170, subdivision (b) (and with
Cunningham v. California (2007) 549 U.S. 270 and Blakely v.
Washington (2004) 542 U.S. 296) would generally be sufficient to
justify imposition of the upper term. (See People v. Towne (2008)
44 Cal.4th 63, 75; People v. Quintanilla (2009) 170 Cal.App.4th
406, 413.) However, because Payne has presented a plausible
contention that new section 1170, subdivision (b)(6), may be
applicable, we agree it is the better course to remand the cause

13 Contrary to the Attorney General’s argument, the
surveillance videos suggest Payne’s shooting was not
indiscriminate but instead targeted toward his intended victims
(thus justifying the attempted murder convictions).

37
for the court to reconsider which term of the triad to impose on
count 1.
DISPOSITION
The convictions are affirmed. The sentence is vacated, and
the cause remanded with directions to the trial court to correct its
previous errors and to resentence Payne in accordance with the
terms of all applicable ameliorative legislation.

PERLUSS, P. J.

We concur:

SEGAL, J.

WISE, J.*

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

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