People v. Lopez CA1/1

Filed 3/17/22 P. v. Lopez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication or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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, A154417
Plaintiff and Respondent,
v. (Solano County
DANIEL LOPEZ, Super. Ct. No.
Defendant and Appellant. VCR228164)

Daniel Lopez was convicted of two counts of attempted murder arising
out of a bar room shooting. His defense was identity: his counsel maintained
the eyewitness identification was unreliable, and his wife testified he was
with her.
Defendant raises numerous issues on appeal, primarily regarding
eyewitness identification issues, claimed prosecutorial misconduct, erroneous
jury instructions, and insufficient evidence to support his conviction. He also
contends, and the People concede, that the one-year enhancements imposed
for prior prison terms under Penal Code section 667.51 must be stricken. We
agree the enhancements should be stricken and the case remanded for
resentencing. In all other respects, we affirm.

1 All further undesignated statutory references are to the Penal Code.

1
 BACKGROUND
The shooting occurred in a bar about a half hour before closing. Two
bartenders, Heidi and Nicole, were working that night. Heidi noticed a man
“pacing back and forth” in front of the bar. He aggressively said to Nicole
“give me a shot.” After Nicole responded that they had already announced
last call, the man banged his fist on the bar and said “give me a fucking shot.”
He then pulled out a gun and pointed it first at Nicole and then at the bar’s
bouncer, who had approached him. The man told the bouncer to “back the
fuck up,” and then said “let me get that drink now,” and waved the gun.
The man then moved towards a group of patrons, waving the gun and
“pointing it at everybody.” Jeffrey, one of the patrons, saw the man point the
gun at a woman in the group. The man then “stuck his hand around”
Jeffrey’s throat and pointed the gun at his face. Jeffrey punched the shooter
three times in the face and “caught eyes” with him. The man “immediately
started shooting off the gun.” One of the shots hit Jeffrey near the top of his
jaw.
At that point, another patron, Doug, attempted to grab the man’s gun.
After shooting Doug in the wrist, the man pointed the gun towards a nearby
group of people, then “turned and took off” out the back door of the bar.
When the police arrived, Nicole described the shooter as “[a] Mexican
wearing a black hoodie.” An officer then drove her to where police had
detained an individual and asked if she could identify him as the shooter.
Nicole was “100 percent” sure it was not him, because “[i]t was not the right
clothing. He was taller [and] [h]e didn’t have a giant tattoo on his neck.” She
described the shooter as “short, Hispanic. No more than 5’ 5.” Heavy set.”
“He had a little bit of facial hair and then the biggest part was the huge
tattoo under his left ear to his throat.” His eyes were brown, but had huge,

2
dilated pupils. At trial, Nicole testified she looked at the shooter “straight
on” and had eye contact with him “[t]he whole time.”
Later that day, police showed an array of six photographs of men,
including defendant in photograph one, to several people who had been at the
bar. Heidi, the bartender, indicated numbers one and three looked familiar,
but she could not be “a hundred percent sure.” Jeffrey, the first patron who
was shot, identified photographs one or three as possibly being the shooter.
Another patron seated next to the shooter identified photographs one and
four. Doug, who was shot in the wrist, was 75 to 80 percent sure the man
depicted in photograph one was the shooter.
Following an anonymous tip identifying defendant and a car associated
with him, defendant was arrested while a passenger in that car. In the
vehicle, police found a bullet, gun holster, knife, cell phone, and mail
belonging to defendant. The gun holster and knife were in the passenger
door pocket, while the mail was in the glove box. There were also two bullet
holes in the car, one on the exterior of the driver’s side door, and one in
plastic footrest on the driver’s side of the car.
The district attorney charged defendant with two counts of attempted
murder (§§ 664, 187, subd. (a)), six counts of assault with a firearm (§ 245,
subd. (a)(2)), and possession of a firearm by a felon. (§ 29800, subd. (a)(1).)
The information also alleged infliction of great bodily injury and personal use
of a firearm enhancements as to both counts of attempted murder. The
information further alleged defendant had a prior strike conviction (§§ 667,
subds. (b)–(j), 1170.12) and that he had prior convictions within the meaning
of section 667, subdivision (a) and 667.5, subdivision (b).
At trial, Nicole, Jeffrey, and Doug all positively identified defendant as
the shooter. The bouncer, Kalin, who had not been shown the photo spread,

3
also positively identified defendant. Heidi identified defendant, as well,
although she could not be a “hundred percent” certain. Two other witnesses,
the patron seated next to the shooter and a barback working that night, were
unable to identify the shooter.
Defendant’s wife testified defendant was with her at the time of the
shooting. She testified they checked into a Motel 6 in Vallejo around noon on
November 26th with her baby and checked out on the following morning
around 9:00 or 10:00 a.m., having never left the motel room. They got a
room, rather than staying at her home, so they could have “intimate time
together” and so defendant could bond with the baby. The room was in
defendant’s name, but she paid for it. They left in separate cars.
Surveillance videos from the bar depicting the shooting were played
and admitted at trial.
The jury found defendant not guilty of one count of assault with a
firearm, and two counts of assault with a firearm were dismissed. It found
him guilty of all remaining counts and found true the enhancing allegations.
The court sentenced defendant to a total prison term of 111 years to
life.
DISCUSSION
The Six-Photo Lineup
Defendant claims the six-photo lineup was “highly suggestive,”
“rendered the trial fundamentally unfair,” and violated his due process
rights, and the trial court therefore erred in denying his in limine motion to
exclude the pretrial identifications. (Capitalization omitted.)
“A defendant’s claim that an identification procedure was unduly
suggestive is a ‘mixed question of law and fact.’ [Citations.] This standard of
review applies because ‘the facts are established, the law is undisputed, and

4
the issue’ we must resolve ‘is whether the law as applied to the established
facts is violated.’ [Citation.] We review the so-called ‘historical facts,’ those
factual determinations that underpinned the trial court’s conclusion that the
identification procedure was or was not suggestive, ‘under a deferential
standard.’ [Citation.] This standard acknowledges that the trial court may
have made ‘credibility determinations,’ that ‘contribute[d] to deciding the
facts of what had already happened, [but] were not dispositive of the inquiry
because the trial court did not have a “first-person vantage” ’ to whatever
‘facts occurred outside of court.’ ” (People v. Wilson (2021) 11 Cal.5th 259, 283
(Wilson).)
A due process violation occurs “ ‘ “only if the identification procedure is
‘so impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.’ ” ’ [Citation.] If we determine the procedure
was suggestive, no due process violation arises if ‘ “ ‘the identification itself
was nevertheless reliable under the totality of the circumstances.’ ” ’
[Citations.] In assessing the totality of the circumstances, we consider ‘ “such
factors as the opportunity of the witness to view the suspect at the time of the
offense, the witness’s degree of attention at the time of the offense, the
accuracy of his or her prior description of the suspect, the level of certainty
demonstrated at the time of the identification, and the lapse of time between
the offense and the identification.” [Citations.] “Against these factors is to be
weighed the corrupting effect of the suggestive identification itself.” ’ ”
(Wilson, supra, 11 Cal.5th at p. 283.)
“ ‘ “A procedure is unfair which suggests in advance of identification by
the witness the identity of the person suspected by the police.” ’ ” (People v.
Carter (2005) 36 Cal.4th 1114, 1164, italics omitted, superseded by statute on
other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th

5
1096, 1106.) Thus, photo arrays in which a defendant’s photo “stands out” in
some way are impermissibly suggestive. (People v. Johnson (1992) 3 Cal.4th
1183, 1217 (Johnson), superseded by statute on other grounds as recognized
in Verdin v. Superior Court, supra, 43 Cal.4th at p. 1106.) The danger of
errors in witness identification based on photo arrays is increased “if [police]
show . . . the pictures of several persons among which the photograph of a
single such individual recurs or is in some way emphasized.” (Simmons v.
United States (1968) 390 U.S. 377, 383.)
“Only if the challenged identification procedure is unnecessarily
suggestive is it necessary to determine the reliability of the resulting
identification.” (People v. Yeoman (2003) 31 Cal.4th 93, 125 (Yeoman).) “ ‘[I]f
we find that a challenged procedure is not impermissibly suggestive, our
inquiry into the due process claim ends.’ ” (People v. Ochoa (1998) 19 Cal.4th
353, 412 (Ochoa).)
Defendant maintains the six-photo lineup caused his photo to “stand
out” for three reasons: he was the only one wearing a hoodie, “the only
person with extensive facial hair . . . including a moustache,” and his photo
was “in the number one position.”
The photo array depicted six men who all appeared to be Hispanic, of
about the same age, and with short dark hair and a moustache.
Defendant’s claim that he is the “only person with extensive facial hair”
is belied by the photos: every man in the photo array has a moustache.2
While defendant’s photo shows him with a moustache that appears to extend
below his lip, the photo does not depict “extensive facial hair.” And, “[m]inor

2 The man depicted in photo five appears to have a faint moustache
that is visible on one side, but the photo is overexposed.

6
differences in facial hair among the participants did not make the lineup
suggestive.” (Johnson, supra, 3 Cal.4th at p. 1217.)
Defendant’s claim that he is the only one wearing a “hoodie” causing
his photo to stand out is also not supported by the photo lineup. Defendant’s
photo depicts him wearing a shirt with what appears to be a hood that is not
pulled over his head. His shirt was dark in color, as were the shirts of the
men depicted in three of the other photos. Minor differences in clothing worn
by the defendant do not make him impermissibly “stand out.” (See People v.
Lawrence (1971) 4 Cal.3d 273, 280 [photo array not impermissibly suggestive
where the “defendant is the only participant wearing a gold shirt and gold
sweater, whereas the four other men wore white shirts or white sweaters”].)
As for defendant’s claim that his placement in the number one position
caused him to stand out, “no matter where in the array a defendant’s
photograph is placed, he can argue that its position is suggestive.” (Johnson,
supra, 3 Cal.4th at p. 1217.)
As the trial court found in denying defendant’s motion, “In looking at
the photos I do not find any one in particular unduly suggestive or unreliable
or the identification is unreliable such that these identifications should be
excluded. I would note subjects in one, two, four and five actually there is [a]
similarity between the photos and the facial features. Number three actually
looks like a similar version of number two in many ways. I would note the
defendant who is number one, he is the only one with the moustache that
goes down the laugh lines. . . . [¶] . . . [¶] In any event, I would note he’s the
only one with that sort of moustache. I would point out that number two,
number three, number four and six clearly all have facial hair, albeit not the
same type of moustache. Number six may have some light moustache, but
they all have some sort of facial hair, all perhaps number five. And the fact

7
that number one is wearing a hoodie, I don’t think that is unduly suggestive
such that the witness would be pointing towards number one.”
Because we conclude the photo array was not impermissibly suggestive,
we need not and do not determine the reliability of the resulting
identification. (Yeoman, supra, 31 Cal.4th at p. 125.) Thus, “ ‘our inquiry
into the due process claim ends.’ ” (Ochoa, supra, 19 Cal.4th at p. 412.)
Witness Identifications at Trial
Defendant claims the asserted suggestive nature of the photo array
combined with the “tainted in-court identification” denied him due process.
He maintains the in-court identifications were “unreliable” because “all the
witnesses identifying [defendant] spoke to at least one other witness [or]
posted on social media,” three witnesses were shown defendant’s booking
photo and asked “if they could identify the man in that photo in the
courtroom,” and four witnesses were shown the bar surveillance video before
being asked to identify the shooter in court. Thus, defendant concludes “all of
the witnesses were tainted by the suggestive lineup.”
Defendant first claims certain witnesses’ testimony at trial identifying
defendant as the shooter was the product of “suggestive cues.” He maintains
these identifications were tainted because the “prosecutor showed witnesses
[Nicole], [Heidi], and [Kalin] [defendant’s] booking photo, Exhibit 89, and
asked them if they could identify the man in that photo within the
courtroom.”
At the outset, we observe defendant failed to object to this questioning
on the basis of “suggestive cues,” thereby forfeiting the claim on appeal.3
(Evid. Code, § 353; People v. Flinner (2020) 10 Cal.5th 686, 726 [“But it is still

3
As we shall discuss, as to Kalin, the court overruled a nonspecific
“foundation and improper question” objection.

8
generally the case that a defendant forfeits an argument on appeal where he
fails to object at all to the evidence in the trial court or when he objects on
substantively distinct grounds.”].)
Defendant also fails to cite any authority forbidding identification
testimony from witnesses who spoke with other witnesses, viewed a
defendant’s booking photo, or watched a surveillance video of the crime before
testifying as to identification. He likewise fails to supply accurate record
citations supporting his claims about questioning the witnesses using Exhibit
89.4
Defendant identifies pages 327–328 of the reporter’s transcript, but on
those pages, Heidi testified about viewing the photo lineup. Defendant also
identified page 589 of the transcript. At that page, Detective Harris testified
he never showed Nicole “any lineup,” and none of the witnesses to whom he
showed the photo lineup “could identify anyone 100 percent.” Detective
Harris also testified he showed the photo lineup to Leila, Doug’s girlfriend,
and she was unable to identify anyone.
Moreover, the factual claims defendant makes are at best misleading,
and at worst contrary to the record. The only reporter’s transcript page cited
by defendant that mentions Exhibit 89 is page 455. That page shows Nicole
was asked about Exhibit 89 as follows: “I am going to show you what is

4
The appellant has the burden of supporting “any reference to a
matter in the record by a citation to the volume and page number of the
record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C);
Newtown Preservation Society v. County of El Dorado (2021) 65 Cal.App.5th
771, 781; see U.S. v. Dunkel (7th Cir. 1991) 927 F.2d 955, 956 [“Judges are
not like pigs, hunting for truffles buried in briefs.”].) Likewise, when an
appellant raises an issue but fails to support it with “ ‘ “ ‘reasoned argument
and citations to authority,’ ” ’ ” we treat the point as waived. (Hoffmann v.
Young (2020) 56 Cal.App.5th 1021, 1029, rev. granted Feb. 10, 2021,
S266003.)

9
marked as People’s Exhibit 89. [¶] This is a picture of an individual with a
tattoo; is that fair to say? [¶] A: Yes. [¶] Q: Is that a tattoo of the same tattoo
you saw that evening that was on the individual with the gun? [¶] A: Yes, in
this picture you see more of it. But same picture, same placement, same ink.
[¶] Q: And the individual that shot the gun that evening, do you see that
individual in court today? [¶] . . . [¶] A: I do. Q: Can you tell me where he is
seated and what that person is wearing?” She identified the defendant.
(Italics added.) Contrary to defendant’s claim, Nicole was not asked “if [she]
could identify the man in that photo within the courtroom.”
Likewise, Heidi was not asked if she could identify the man in Exhibit
89 in the courtroom. The prosecutor asked Heidi on redirect “the person [on
whom] you indicated you saw a tattoo, do you see th[at] person in the
courtroom today?” After Heidi responded, “I can’t say for a hundred percent,
no,” the prosecutor asked, “Can you pick any individual whether or not it’s a
hundred percent or not?”5 Heidi identified defendant. Neither Heidi nor
Nicole was asked if they could identify the man in the Exhibit 89 photo in the
courtroom.
Although defendant’s transcript cite is wrong, Kalin was the only one of
the three asked, “That person in that picture, do you see that person in the
court today?” after identifying the tattoos of the pictured individual as the
same as the shooter’s. The court overruled the defense attorney’s objection:
“Foundation and improper question.” However, the prosecutor then asked:
“Now the person who pointed the gun at you, do you see that individual in
the courtroom today?” Kalin identified defendant in response to both

5 Defendant also asserts Heidi “was directed to pick someone out in the
courtroom, ‘whether it’s a hundred percent or not.” As noted, this misstates
the record.

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questions. Thus, in the context of the questioning and Kalin’s testimony, the
questioning was not “suggestive and misleading.”
Exclusion of Expert Testimony
Defendant also maintains the court erred in excluding the proposed
testimony of Dr. Behnan Bavarian, an expert in scientific identification based
on biometrics. He claims the exclusion denied him his Sixth and Fourteenth
Amendment rights to present a full defense. We review the trial court’s
ruling on the admissibility of expert testimony for abuse of discretion.
(People v. Watson (2008) 43 Cal.4th 652, 692 (Watson).)
At an Evidence Code section 402 hearing, Dr. Bavarian testified he
reviewed the videotape taken at the bar which showed the shooting and did a
“quantitative analysis” to determine whether there was enough “information
to define some sort of a measure, measurements that will allow comparison of
the person of interest in the videos and the subject that we had the mug shots
and clear pictures of.” He opined there was “not enough measurable data” in
the video and concluded “there is not enough information in there to allow
this evidence to be used for any kind of qualitative or quantitative sort of
comparison.” Dr. Bavarian concluded “it will actually mislead the jury to use
the video so because we know for [a] fact that there is no measurable
information in there.”
Dr. Bavarian conceded he did not have the expertise to conclude
biometric methodology is the same type of methodology used by the human
brain to make comparisons. He testified the use of biometrics is “not an eye,”
“[w]e wish we [c]ould get to the brain level but we are not there yet. . . . [The]
brain is more complex and much more processing [is] involved there.”
In granting the motion to exclude, the trial court initially stated: “In
thinking this through I’m going to grant the People’s motion to exclude this

11
witness. I do not find it to be relevant. I’ll state my reasons so you have
those. Whether or not you can use certain data points to make identification
to a known photograph from a scientific standpoint or biometrics standpoint
is not relevant to the inquiry. The jury makes this finding based on proof
beyond a reasonable doubt and the human element here, so I think by
injecting this sort of testimony, this standard in it interferes with the proof
beyond a reasonable doubt standard. We are not talking about the scientific
standard here. Whether or not there are enough data points, again, to make
this sort of comparison I think under [Evidence Code section] 352 is confusing
and misleading to the jury. Again, I think it does start to get into a standard
that is not relevant to the jury in terms of beyond a reasonable doubt. I think
it might be a different question if the People were trying to first offer some
evidence, scientific evidence that a known photograph matched up with all
these points and then a defense expert said no, from these data points you
cannot draw that conclusion. That would be a different analysis here, but we
don’t have that situation here.”
Following the Evidence Code section 402 hearing, the trial court
indicated its initial ruling would stand. It explained, “What I meant to say, if
I said something different, was [the proposed testimony] injects a different
standard of proof. The jury’s standard is beyond a reasonable doubt. It is not
the quantitative analysis or quantitative standard of proof that was
suggested by the doctor. . . . [A]s to any qualitative opinions, none of those in
the Court’s view are proper opinions. The jury does not need an expert to
testify that this video should not be used as comparison for a suspect because
it is fuzzy or has fuzzy information. Similarly, [an] expert is not needed to
say this video is not good enough to show to a jury for the purposes of ID. All
of those are within common experience. One can look at the videos, and if

12
they feel they’re fuzzy, they feel they’re fuzzy. Those are not proper expert
opinions. . . . [¶] . . . As to a limiting instruction as to whether the photos are
direct or circumstantial evidence . . . I’m not inclined to give a limiting
instruction. Direct evidence is something you see. So they see the video.
That’s direct evidence, what they see. They can make whatever inferences or
observations they chose to out of those videos. . . . [U]nder [Evidence Code
section] 352 I would keep [the expert testimony] out as well. [¶] . . . [¶] [A]s
the potential for confusion of the issues and misleading of the jury would
outweigh any potential probative value.”
“The correct rule on the necessity of expert testimony has been
summarized by Bob Dylan: ‘You don’t need a weatherman to know which
way the wind blows.’ The California courts, although in harmony, express
the rule somewhat less colorfully and hold expert testimony is not required
where a question is ‘resolvable by common knowledge.’ ” (Jorgensen v. Beach
‘N’ Bay Realty, Inc. (1981) 125 Cal.App.3d 155, 163, fn. omitted.)
“ ‘[T]he identity of a person is a proper subject of nonexpert
opinion . . .’ ” (People v. Leon (2015) 61 Cal.4th 569, 601, quoting People v.
Perry (1976) 60 Cal.App.3d 608, 612.) “It is now clearly established that lay
opinion testimony concerning the identity of a robber portrayed in a
surveillance camera photo of a robbery is admissible where the witness has
personal knowledge of the defendant’s appearance at or before the time the
photo was taken and his testimony aids the trier of fact in determining the
crucial identity issue. [Citations.] Where the photo is unclear, or the
defendant’s appearance has changed between the time the crime occurred
and the time of trial, or where for any reason the surveillance photo is not
conclusive on the identity issue, the opinion testimony of those persons
having knowledge based upon their own perceptions (Evid. Code, § 800, subd.

13
(a)) of defendant’s appearance at or before the time the crime occurred is
admissible on the issue of identity. . . .” (People v. Ingle (1986)
178 Cal.App.3d 505, 513.) “Court of Appeal decisions have long upheld
admission of testimony identifying defendants in surveillance footage or
photographs.” (Leon, at p. 601.)
Defendant asserts a “trial court may exclude an expert’s opinion
testimony only if that expert lacks an adequate basis in formulating it,”
(italics added) citing Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747. Sargon does not so hold. Indeed, Sargon
states: “[U]nder Evidence Code sections 801, subdivision (b), and 802, the
trial court acts as a gatekeeper to exclude expert opinion testimony that is (1)
based on matter of a type on which an expert may not reasonably rely, (2)
based on reasons unsupported by the material on which the expert relies, or
(3) speculative. Other provisions of law, including decisional law, may also
provide reasons for excluding expert opinion testimony.” (Id. at pp. 771–772.)
Here, the trial court did not abuse its discretion in concluding expert
testimony on consideration of the surveillance video was not necessary and
was more prejudicial than probative.
Because the trial court did not abuse its discretion in excluding the
testimony, defendant’s federal constitutional claim also lacks merit. “ ‘[T]he
United States Supreme Court never has suggested that this right precludes
the state from applying ordinary rules of evidence to determine whether such
evidence is admissible.’ ” (Watson, supra, 43 Cal.4th at pp. 692–693.)
Evidence of Defendant’s Alteration of His Appearance
Testimony About Defendant’s Appearance At Trial

14
 Defendant maintains the court erred in allowing Officer Harris to
testify about his observations of defendant at trial, which he asserts
constituted improper “demeanor” evidence.
Officer Harris testified he observed defendant put on glasses in court
before certain witnesses were asked to identify him. He noted that defendant
had not worn glasses when he was arrested or questioned. Nor had police
found any glasses in the car in which defendant was a passenger when he
was arrested, although other indicia related to defendant were found.
Defendant relies on People v. Garcia (1984) 160 Cal.App.3d 82 (Garcia)
to support his claim that Officer Harris’s testimony about him putting on and
removing glasses at trial was improper demeanor evidence.
In Garcia, jurors advised the court that defendant and a spectator in
the courtroom were smirking or jeering during the testimony of a witness.
(Garcia, supra, 160 Cal.App.3d at p. 87.) The court instructed the jurors to
“ ‘disregard what anyone in the audience did, that that it in no way
constituted legal evidence, and that they must ultimately predicate their
decision only on the evidence that was produced here in the Courtroom.’ ”
(Id. at p. 90.) The defendant claimed this instruction “impermissibly allowed
the jurors to consider defendant’s courtroom conduct in their determination of
his guilt or innocence,” and the record “clearly establish[ed] that the trial
court believed th[e] defendant’s courtroom demeanor could properly be
considered by the jury in their evaluation of his guilt or innocence.” (Ibid.)
Garcia explained “[o]rdinarily, a defendant’s nontestimonial conduct in
the courtroom does not fall within the definition of ‘relevant evidence’ as that
which ‘tends logically, naturally, [or] by reasonable inference to prove or
disprove a material issue’ at trial.” (Garcia, supra, 160 Cal.App.3d at p. 91.)
“[D]emeanor evidence is only relevant as it bears on the credibility of a

15
witness.” (Ibid.) “Authorizing the consideration of such demeanor in the
determination of guilt or innocence also runs the grave danger of inviting the
jury to use the character of the accused to prove guilt–something that is
wholly improper unless the defendant first present evidence of his good
character.” (Ibid.)
The appellate court went on to explain, however, that “[i]t should not be
inferred from this analysis that we somehow disapprove of the routine
practice of a jury viewing the defendant’s physical appearance to see if it
comports with a physical description given by a witness or to determine if the
physical appearance of a defendant supports a factual finding that must be
made by the trier of fact. . . . Our holding is limited to those instances where
defendant’s nontestimonial behavior at counsel table is not objectively
relevant to any disputed issue at trial and is merely offered to show
defendant’s character or a trait of his character.” (Garcia, supra,
160 Cal.App.3d at p. 92, fn. 7.)
Here, the claimed “demeanor” evidence—that defendant put on his
glasses before witnesses were asked to identify him in court—was relevant to
the disputed issue of identity and as evidence of his consciousness of guilt.
“It is not improper for a prosecutor to suggest that a defendant deliberately
altered his or her appearance to raise doubt concerning the defendant’s
identity as the perpetrator, unless the prosecutor knows that the change in
appearance was motivated solely by a reason unrelated to the reason
suggested by the prosecutor.” (People v. Foster (2010) 50 Cal.4th 1301, 1355.)
“[T]he courts have long held ‘ “ [a]ny conduct of a defendant subsequent to the
commission of the crime tending to show consciousness of guilt is relevant
and admissible. . . .” ’ [Citation.] ‘[T]here need only be some evidence in the
record that, if believed by the jury, would sufficiently support the suggested

16
inference [of consciousness of guilt].’ ” (People v. Pettigrew (2021)
62 Cal.App.5th 477, 497–498, italics omitted.)
Defendant further claims the evidence “was not probative” because
Officer Harris’s testimony was “based on an incomplete and inaccurate
observation” of defendant, and the officer was “equivocal about the role that
the prosecutor played in encouraging his sporadic observations.” These
concerns, however, go to the weight of the evidence, not whether it was
relevant.
Defendant alternatively urges that even if relevant, Officer Harris’s
testimony was more prejudicial than probative. He maintains he was
“entitled to rely on the State’s case and not be subject to testimony [or be] put
into the position of either testifying to disavow the stated purpose of relying
on his reading glasses or remain silent and let the jury consider the evidence
which remained largely unrebutted other than [defendant’s wife’s] testimony
that [defendant] wore reading glasses.”
Defendant misconstrues the prejudice analysis. First, a defendant is
always “put into the position of either testifying . . . or remain[ing] silent” in
response to evidence introduced by the prosecution. That is not prejudice.
Secondly, “ ‘ “[p]rejudice” as contemplated by [Evidence Code] section 352 is
not so sweeping as to include any evidence the opponent finds
inconvenient. . . . “ ‘In applying [Evidence Code] section 352, “prejudicial” is
not synonymous with “damaging.” ’ ” ’ ” (People v. Doolin (2009) 45 Cal.4th
390, 438–439.)
In sum, the trial court did not abuse its discretion in admitting Officer
Harris’s testimony.

17
 Defendant’s Prior Booking Photos
Defendant asserts the trial court erred in admitting 15 of his booking
photos, taken from 2004 through 2016.6 The court admitted the photos in a
“sanitized” condition, “so the jury does not know what these are in terms of
booking photos.” Defendant claims the photos were unauthenticated,
hearsay, not relevant, inadmissible character evidence, and more prejudicial
than probative.
The trial court, in admitting the photos, concluded “It is relevant to
show all throughout the years he’s had the moustache. The facial hair is
similar to what has been testified to and/or seen on the videos, so I think it is
relevant. The jury can make these sorts of comparisons. And the People’s
argument [is] he’s had consistently facial hair throughout these years, [and]
at this point [h]e does not. You can argue the opposite. It doesn’t mean
anything, but it is relevant evidence. And under [Evidence Code section] 352
I would not exclude it. . . . [T]here is [the] authentication issue. These are
certified documents.” “I’m going to allow the photos. . . . There is a theory of
relevance that’s been expressed by the People.”
Defendant has forfeited his hearsay and authentication objections. He
did not object on hearsay grounds, and after acknowledging the photographs
were certified records, he reframed his lack of authentication claim as a
relevance objection7.

6 People’s Exhibit 82, which was a photo of defendant titled “Mugshot
Profile Short,” was not admitted at trial.
7 Defendant’s attorney initially objected: “[T]here isn’t authentication.
Just because it’s an official record it doesn’t come in.” The court asked: “Let
me make sure I under[stand]. Are you talking about the need to have a
custodian of records to come in to say this is, in fact, [defendant] or this is the
way we prepare these records?” Defendant’s attorney responded: “No. No.

18
 As to his claim the photographs were inadmissible character evidence
under Evidence Code section 1101, he asserts they “had no relevance other
than propensity evidence . . . an effort to demonstrate to the jury that
[defendant] had been arrested on several occasions.
It is true that the admission of mug shots may make “ ‘the difference
between the trial of a man presumptively innocent of any criminal
wrongdoing and the trial of a known convict’ (United States v. Reed (7th Cir.
1967) 376 F.2d 226, 228) and may well be equivalent to the introduction of
direct evidence of prior criminal conduct.” (People v. Vindiola (1979)
96 Cal.App.3d 370, 384, abrogated on another ground in People v. Carter
(2003) 30 Cal.4th 1166, 1197.) And in People v. Cook (1967) 252 Cal.App.2d
25, on which defendant relies, the photograph in question was problematic
because it was “in the familiar and unmistakable format of a police mug shot.
It shows appellant’s full face and profile, side by side. Each of the paired
pictures has a printed legend which was photographed with appellant from a
sign placed in front of him. These words and figures appear on the legend:
SAN PABLO CALIF POLICE DEPT 10 24 59 8156 H J COOK.” (Id. at p. 27.)
The photographs to which defendant objects, however, contain no
indication they were mugshots. Unlike the photos in Cook, the photographs
depict defendant’s face only from the front, and do not have any writing

It’s not that, but it has to be relevant. I mean, right, not the custodian of
records. I mean, you know, right, not about the official record writing.” The
court stated: “That’s where authentication–when I hear authentication,
that’s what I generally think about is having the custodian say these are
records prepared in the normal course of business.” Defendant’s attorney
responded: “I meant authentication one step further. One, relevance, and
that relates always to foundation. . . . For these you would need someone to
come in and say, you know, he looked like this back then. . . . So that’s the
authentication and foundation that’s needed to actually make the official
record admissible.”

19
indicating a police department or booking number. The only writing on the
photos is defendant’s name and a date. Indeed, the trial court ordered the
photographs to be “sanitize[ed] of everything except perhaps the name and
the photo date. Everything else will be sanitized so the jury does not know
what these are in terms of booking photos.” Thus, the trial court did not err
in concluding the photos, as admitted, were not inadmissible character
evidence.
Defendant lastly claims that even if admissible, the trial court abused
its discretion by not excluding the booking photos under Evidence Code
section 352.
In seeking to admit the photos, the prosecutor explained they were
relevant “to show that the defendant was altering his appearance to make it
more difficult to identify him. He was arrested with a shaved face. All those
pictures show that since 1994 the defendant has had facial hair and [it]
seems to be not a coincidence that the date after the shooting he is now clean-
shaven. [¶] . . . [¶] That coupled with the fact he’s putting on glasses just as
the eyewitnesses are asked to identify him in court is all relevant to show
he’s trying to alter his appearance to avoid being identified.”
As with the evidence that defendant put on glasses before potential
witness identifications, evidence that he had facial hair for years before the
shooting, but not after, was relevant. And so too, the type of prejudice
resulting from that evidence was not the type of prejudice that Evidence Code
section 352 was designed to avoid—it was the “damage to a defense that
naturally flows from relevant, highly probative evidence.’ ” (People v. Doolin,
supra, 45 Cal.4th at p. 439.)

20
Evidence Regarding the Holster and Bullet Hole in the Car
The trial court admitted evidence that the car in which defendant was
a passenger when he was arrested had a bullet hole in the floorboard and
that a gun holster was found in the side pocket. Defendant claims this
evidence was irrelevant, improper character evidence, more prejudicial than
probative, and violated his due process rights.
“The elements of unlawful possession may be established by
circumstantial evidence and any reasonable inferences drawn from such
evidence.” (People v. Williams (1971) 5 Cal.3d 211, 215, superseded by
statute on another ground as stated in People v. Romero (1997)
55 Cal.App.4th 147, 152–153.) Accordingly, evidence of gun-related materials
in the absence of a gun have been found admissible to show defendant’s
possession of a gun. In People v. Neely (1993) 6 Cal.4th 877, deputy sheriffs
found ammunition and a weapon in a pickup truck at the crime scene, shortly
after commission of the crimes. The truck was registered to defendant’s wife.
(Id. at p. 885.) Although the gun found in the vehicle was not the murder
weapon, the court concluded “admission of the gun and the ammunition was
not prohibited. . . . [T]here was no direct evidence as to the fatal shooting
that would render this evidence irrelevant to establish facts material to proof
of the charged offenses.” (Id. at p. 896.) Similarly, in People v. Price (1991) 1
Cal.4th 324, “defendant’s possession of shotgun ammunition at his mother’s
residence did have some tendency in reason to establish his possession of the
shotguns seized from the Reno storage locker.” (Id. at p. 434.)
As the trial court concluded, evidence of the bullet hole in the
floorboard of the car and the holster in the side pocket was relevant
circumstantial evidence in connection with the charge that defendant was a
felon in possession of a firearm. Defendant was found in the car the day after

21
the shooting, and the car contained indicia linking defendant to the vehicle.
The jury was also instructed on the use of circumstantial evidence.
“Circumstantial evidence does not directly prove the fact to be decided, but is
evidence of another fact or group of facts from which you may logically and
reasonably conclude the truth of the fact in question.”
Defendant maintains the evidence had “no relevance except as
prohibited propensity evidence.” Relying on People v. Barnwell (2007)
41 Cal.4th 1038 (Barnwell), he asserts that “[e]vidence of possession of a
weapon not used in the crime charged against a defendant is inadmissible
because it, ‘leads logically only to an inference that defendant is the kind of
person who surrounds himself with deadly weapons–a fact of no relevant
consequence to determination of the guilt or innocence of the defendant.’ ”
Barnwell involved significantly different facts. In that case, the trial
court admitted the testimony of a police officer tending “to show that a year
before the murders defendant possessed another handgun similar to the
murder weapon.” (Barnwell, supra, 41 Cal.4th at p. 1055.) “The trial court
ruled that [the officer’s] testimony was relevant to defendant’s identity as the
murderer because the ‘relatively unique’ characteristics of the pistol she
found in his possession demonstrated his ‘propensity to own or carry that
type of weapon.’ ” (Id. at p. 1056, italics omitted.) Our Supreme Court held
the court erred. “When the prosecution relies on evidence regarding a specific
type of weapon, it is error to admit evidence that other weapons were found
in the defendant’s possession, for such evidence tends to show not that he
committed the crime, but only that he is the sort of person who carries deadly
weapons. [Citations.] Because the prosecution did not claim the weapon
found by [the officer] was the murder weapon, its admission was error.”
(Ibid.)

22
 Here, in contrast, the bullet hole and empty holster were found in the
car in which defendant was seated the day following the shooting, the vehicle
contained indicia related to defendant, and the evidence was offered not to
establish the defendant’s identity, but to prove he was a felon in possession of
a firearm.
Nor did admission of this relevant evidence render defendant’s trial
fundamentally unfair such that it violated his due process rights. “ ‘The
admission of relevant evidence will not offend due process unless the evidence
is so prejudicial as to render the defendant’s trial fundamentally unfair.’ ”
(People v. Jones (2013) 57 Cal.4th 899, 949, quoting People v. Falsetta (1999)
21 Cal.4th 903, 913.) No such prejudice is shown here.
Prosecutorial Misconduct
Defendant makes numerous claims of prosecutorial misconduct during
closing argument, many regarding comments on evidence defendant claims
should have been excluded. He asserts, for example, that the prosecutor
committed misconduct when “he argued to the jury that the reading glasses
were taken on and off during trial to hinder recognition of [defendant] by the
witnesses.” However, we have rejected defendant’s claim that this evidence
was improperly admitted, and argument as to such evidence was entirely
permissible.
Misstatements of Fact
Defendant also claims the prosecutor made misstatements of fact. The
prosecutor argued: “[T]hey find the defendant nine hours later. And he’s
driving in a car. What is notable about that car? It has a holster in it. . . .
[¶] . . . [¶] Circumstantial evidence is th[at] defendant has a gun. He’s
driving the car. There [are] letters addressed to him in the car.” Defense

23
counsel objected, without success, that this “misstates evidence driving the
car actually.”
Although defendant is correct that the evidence showed he was in the
passenger seat when the police finally stopped the car, Officer Harris
testified that he earlier saw the “driver and the passenger change their seats
inside the car. . . . [The] driver moved to passenger, passenger moved to the
driver position, and they drove off.” Thus, the prosecutor did not misstate,
but rather drew a reasonable inference from, the evidence. Further, the
jurors were instructed that they were the exclusive finders of fact. Thus, it
was their province to determine whether defendant was, in fact, the driver,
the passenger, or had switched places. Accordingly, there is no reasonable
likelihood the jury construed the remarks in an improper fashion. (See
People v. Steskal (2021) 11 Cal.5th 332, 350 (Steskal) [“When a claim of
misconduct is based on remarks to the jury, we consider whether there is a
reasonable likelihood the jury construed the remarks in an improper
fashion.”].)
Defendant next claims the prosecutor misstated: “[Defendant] got rid
of the gun because they weren’t able to find a gun. He forgot about the
holster.” (Italics omitted.) The prosecutor actually argued: “I submit to you
the defendant got rid of the gun because they weren’t able to find a gun. He
forgot about the holster. It was still in the car.” Thus, contrary to
defendant’s claim, it was clear the prosecutor was again drawing a
reasonable inference based on the evidence, which he had “ ‘ “wide
latitude” ’ ” to do. (See Steskal, supra, 11 Cal.5th at pp. 362–363.)
Defendant additionally claims the prosecutor made the following false
statement about the sanitized booking photos: “There is nothing disputed
about those pictures as far as their authenticity, or that they are of defendant

24
or the dates.” (Italics omitted.) The prosecutor actually said: “There is
nothing about those pictures which are disputed as far as their authenticity.
There is no dispute they are of the defendant. There is no dispute they are
taken on those dates of the defendant, and the purpose of those is to show
this defendant always had facial hair most of his adult life, and it’s not a
coincidence I submit to you that he didn’t have facial hair nine hours after
the incident because he shaved to avoid being recognized.” The trial court
overruled defense counsel’s objection of “[f]acts not in evidence. Vouching.”
Defendant maintains “there was a significant dispute” over the photos,
pointing out he made an objection to their admission which was overruled.
As we have discussed, defendant abandoned his authentication objection and,
instead, argued relevancy. And whether the photographs were relevant is a
different issue than whether they were actually of defendant or taken on the
indicated date.
Next, defendant claims the prosecutor falsely stated: “Now the
defendant has since shaved because he’s clean-shaven. . . . It was no
coincidence why [defendant] was clean-shaven the day of the shooting.”
(Italics omitted.) In his closing argument, the prosecutor actually stated, in
reference to the photos of defendant and the barroom video: “Now, the
defendant has since shaved because he’s clean shaven. I’ll go into that later.”
A few moments later, the prosecutor stated: “Spanning back from 2006 the
defendant, random pictures, has [a] goatee or facial hair of some sort. Yet
now nine hours after the bar shooting he’s clean shaven. That’s not a
coincidence. . . . You look at the picture, all those compared to the defendant
here, the defendant in the video, same person. Not coincidence why he
shaved.”

25
 Contrary to defendant’s claim, these statements were not false and,
again, within the wide latitude given to prosecutors to argue reasonable
inferences from the evidence at trial. (See Steskal, supra, 11 Cal.5th at
pp. 362–363.)
Defendant also claims the prosecutor misstated: “[Doug] was
absolutely believable. All the witnesses picked number one in the lineup,
because he was the one shooting up the bar.” However, the prosecutor’s
actual words were: “As far as Doug . . . , again, he was shown a photo lineup
consistent with all the people who were shown the photo lineup who testified.
He chose either number one or number three. Number one is the defendant.
He too had personal, up close with the defendant. Able to pick him in court.
Absolutely believable. He was accurate. [Heidi] . . . was shown a photo
lineup. [She] wasn’t as close to the defendant. . . . She recognized the tattoo,
identified the tattoo, the defendant and the tattoo. It was the same guy with
the tattoo. On top of that, she was shown the six photographs. Again, she
picked number one or three. So [Jeffrey] picked number one. [Doug] picked
number one. [Heidi] picked number one. Who is number one? [Defendant.]
[Another patron] was shown the same lineup. Same result. Picked either
number one or number four. Again there is a pattern here. Everyone is
picking number one. Why are they all picking number one? Because number
one, [defendant], was the person shooting up the bar. It’s consistent.”
Defendant asserts these statements were false because “photo number
one contains the only male wearing a hoodie . . . none of the lineup witnesses
were certain that he was the perpetrator, and some articulated reasons why
he looked different from the actual gunman. Every lineup witness selected
two photos as actual suspects.”

26
 However, defendant has mischaracterized the prosecutor’s argument.
Considering the entirety of the argument, it is apparent the prosecutor was
not making false statements but pointing out that while some witnesses
picked two pictures from the lineup, all of them chose number one as one of
the identified pictures. And contrary to defendant’s claim, stating Doug’s
identification was believable was not improper vouching because the
“ ‘prosecutor’s assurances regarding the apparent honesty or reliability of
prosecution witnesses [were] based on the “facts of [the] record and the
inferences reasonably drawn therefrom, rather than any purported personal
knowledge or belief.” ’ ” (People v. Ward (2005) 36 Cal.4th 186, 215.)
Lastly, defendant claims the prosecutor falsely stated: “[Nicole] was
taking in the perpetrator’s features,” and “[a]ll the people who identified
[defendant] were paying attention to his face.” (Italics omitted.)
Again, defendant has mischaracterized the prosecutor’s argument. At
the cited pages of the transcript, the prosecutor actually argued: “[Nicole],
also like [Kalin the bouncer], saw the defendant up close and personal. She
described seeing the tattoo as well. . . . [Nicole] had a strong recognition.
She’s the one who gave the most detail about what type of contact she had.
She was able to see that he had dilated eyes. It was a 90 second contact. For
30 seconds she was staring straight in the face when she said that I was
looking right in his face. 30 seconds. You’re staring [at] someone for 30
seconds looking at them straight in the eyes. You are taking in the features.
Someone straight in the eyes, you are recognizing that person. [¶] . . . No
hesitation when she pointed at him in court, and what makes her more
credible is that she actually was able to exclude the individual who they
stopped.” “The people who were able to identify defendant in court, again,

27
are the people who had the strong recognition, people who had the gun
pointed in their face.”
In sum, defendant has not shown that any of the challenged statements
made by the prosecutor were inaccurate.
Comments Concerning Defense Counsel
Defendant next maintains certain comments by the prosecutor
denigrated defense counsel by “suggest[ing] to the jury that defense counsel
somehow violated ethical rules of practice and . . . was not seeking the truth
but instead was attempting to mislead gullible jurors into acquitting her
client by either trying to hide evidence, . . . distract[ing] them with irrelevant
information, or create[ing] a sideshow with [defendant’s] on and off removal
of reading glasses during trial.” Defendant asserts the comments denied him
his constitutional right to effective assistance of counsel.
“It is generally improper for the prosecutor to accuse defense counsel of
fabricating a defense [citations], or to imply that counsel is free to deceive the
jury [citation]. Such attacks on counsel’s credibility risk focusing the jury’s
attention on irrelevant matters and diverting the prosecution from its proper
role of commenting on the evidence and drawing reasonable inferences
therefrom. [Citations.] [¶] Nevertheless, the prosecutor has wide latitude in
describing the deficiencies in opposing counsel’s tactics and factual account.
(See People v. Frye (1998) 18 Cal.4th 894, 977–978 [, disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22] . . . [no
misconduct where prosecutor accused counsel of making an ‘ “irresponsible” ’
third party culpability claim]; People v. Medina (1995) 11 Cal.4th 694, 759 . . .
[no misconduct where prosecutor said counsel can ‘ “twist [and] poke [and] try
to draw some speculation, try to get you to buy something” ’].) In so doing,
the prosecutor may highlight the discrepancies between counsel’s opening

28
statement and the evidence. [Citation.] Misconduct claims also have been
rejected where the prosecutor anticipates the flaws likely to appear in
counsel’s closing argument based on evidence that was introduced [citation],
and where the prosecutor criticizes the defense theory of the case because it
lacks evidentiary support.” (People v. Bemore (2000) 22 Cal.4th 809, 846.)
Defendant identifies three comments by the prosecutor during his final
closing that defendant maintains denigrated defense counsel. The first is the
prosecutor’s assertion that: “[T]hose pictures allow you to get a better look at
defendant. It’s curious how defense counsel doesn’t want you to get a better
look at defendant. That’s what those pictures do.” The next is the
prosecutor’s assertion that: “Same with the glasses. . . . It’s curious the
timing of when he put on those glasses. . . . It’s a sideshow. Her client got
caught.” The third is the prosecutor’s assertion that defense counsel’s
argument about the lack of forensic evidence is “a red herring argument.”
None of these assertions denigrated defense counsel. To the contrary,
the prosecutor’s argument that defense counsel “doesn’t want you to get a
better look at defendant” was in response to counsel’s plea to the jury to
“please don’t consider” the photographic evidence showing defendant had had
facial hair for years before his arrest. As for the prosecutor’s “side show”
comment, it was in response to defense counsel’s own claim of a side show.
She had argued: “[Wasting] court time trying to discuss whether or not a
man shaved or not, when he took off his glasses, I ask you please don’t
consider that as evidence. That is a side show. . . .” Counsel likewise argued
the prosecutor’s questioning of defendant’s alibi (that he was spending a
romantic evening with his wife in a motel) was a “side show of what a
husband and a wife are doing at a motel room.”

29
 In sum, the prosecutor’s comments were well within the latitude
allowed prosecutors in describing deficiencies in the evidence and responding
to defense arguments. There was no misconduct and, likewise, no
impairment of defendant’s right to effective assistance of counsel.
The “Abiding Conviction” Comment
Defendant also asserts the prosecutor wrongly “suggested that the
witnesses’ certainty was an abiding conviction within the meaning of the
reasonable doubt instruction.” (Capitalization & underscoring omitted.)
This, he claims, was misconduct and an infringement of his due process
rights because an “abiding conviction . . . does not pertain to the witnesses,
but rather the jurors themselves.”
“ ‘ “[I]t is improper for the prosecutor to misstate the law generally . . .
and particularly to attempt to absolve the prosecution from its prima facie
obligation to overcome reasonable doubt on all elements. . . .” [Citation.] . . .
However, ‘[w]hen attacking the prosecutor’s remarks to the jury, the
defendant must show that, “[i]n the context of the whole argument and the
instructions” [citation], there was “a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 111.)
Defendant concedes, however, that his counsel failed to object to the
challenged comment. He nevertheless asserts the issue was not forfeited
because his counsel had “already unsuccessfully objected to several other
facets of the prosecutor’s argument,” as well as made at least 19 unsuccessful
evidentiary objections. Defendant maintains the “entire climate of this trial
more than supports a conclusion that further objections would have been
futile.” Thus, he “requests that this court exercise its discretion in the
instant case to review the instances of misconduct.” We do not agree with

30
defendant’s characterization of the trial and decline to consider his belated
challenge to the prosecutor’s argument.
Defendant alternatively maintains his counsel’s failure to object
constituted ineffective assistance of counsel. “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.’ [Citation.] If
the record ‘sheds no light on why counsel acted or failed to act in the manner
challenged,’ an appellate claim of ineffective assistance of counsel must be
rejected ‘unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation.’ ” (People v.
Ledesma (2006) 39 Cal.4th 641, 746.)
Defendant asserts there was “ ‘no conceivable tactical purpose’ ” for his
counsel’s failure to object. But he has provided one himself, in his assertion
of no forfeiture: “Repeated unsuccessful defense objections harm the defense
before the jury. . . . ‘Trial lawyers are well aware that frequent[] admonitions
to a jury to disregard that which has already been implanted in their minds
serve only to emphasize and underline and sometimes transform the
inconsequential into indelibility.’ ” In short, it is entirely conceivable that
counsel made objections only to those prosecutorial comments she deemed
most egregious, and this passing comment was not of such magnitude.
Appeal to Juror Sympathy
Defendant also claims the prosecutor committed misconduct because he
“asked the jury to grant [Jeffrey] and [Doug] justice, telling them that they
had waited 187 days for justice.”
“ ‘It is, of course, improper to make arguments to the jury that give it
the impression that “emotion may reign over reason,” and to present

31
“irrelevant information or inflammatory rhetoric that diverts the jury’s
attention from its proper role, or invites an irrational, purely subjective
response.” ’ ” (People v. Redd (2010) 48 Cal.4th 691, 742.) “ ‘ “[A]n appeal for
sympathy for the victim is out of place during an objective determination of
guilt.” ’ ” (People v. Seumanu (2015) 61 Cal.4th 1293, 1342, quoting People v.
Kipp (2001) 26 Cal.4th 1100, 1130.) “It has long been settled that appeals to
the sympathy or passions of the jury are inappropriate at the guilt phase of a
criminal trial. [Citations.] We recognize that the prosecutor ‘may vigorously
argue his case and is not limited to “Chesterfieldian politeness” ’ [citations],
but the bounds of vigorous argument do not permit appeals to sympathy or
passion. . . .” (People v. Fields (1983) 35 Cal.3d 329, 362–363, fn. omitted
(Fields).)
Relying on Fields and People v. Vance (2010) 188 Cal.App.4th 1182
(Vance), defendant claims the prosecutor’s statements were improper appeals
to sympathy for the victims.
In Vance, the Court of Appeal concluded the prosecutor improperly
made the “ ‘Golden Rule’ ” argument. “In its criminal variation, a prosecutor
invites the jury to put itself in the victim’s position and imagine what the
victim experienced. This is misconduct, because it is a blatant appeal to the
jury’s natural sympathy for the victim.” (Vance, supra, 188 Cal.App.4th at
p. 1188.) The prosecutor, however, did exactly that, arguing: “ ‘In order for
you as jurors to do your job, you have to walk in [the victim’s] shoes. You
have to literally relive in your mind’s eye and in your feelings what [the
victim] experienced the night he was murdered. . . . Can you imagine . . .
[g]etting out of your car with the two people you thought up to that point
were your friends . . . [a]nd then suddenly, without warning, being jumped,
being put into a choke hold, taken down to the ground and choked out.

32
You’re trying to gasp for air but the pressure from the choke hold doesn’t let
up. . . . [¶] We all on one occasion or another have experienced the sense of
what it’s like to be suffocated to a lesser degree, . . . [m]aybe you were held
underwater too long while swimming or playing in water as a child. . . .
There’s nothing more terrifying than a feeling of not being able to breathe.
You’re totally trapped. Trapped in darkness without the ability to
breathe. . . .’ ” (Id., at p. 1194.)
Similarly in Fields, the prosecutor argued: “ ‘Now, think of yourself as
[the victim]. A young librarian from the University of Southern California; a
quiet girl, not outgoing. . . . [¶] . . . [¶] . . . The defendant threatens to kill
you unless you give him the money. You are now naked and tied to the bed
rails of the defendant’s bed. You are forced to write several checks. . . .
[¶] . . . [¶] . . . [A]ll of a sudden the defendant shoots you on the side and you
yell, “Oh, God.” [¶] . . . [¶] Do you wonder about heaven, about God? You
know there is no escape. The defendant shoots you more times. He states
that you are not dead, and he has to make sure you are dead. . . . And it
takes 10 or 15 minutes for you to die. Blood meanwhile spatters on your
face.’ ” (Fields, supra, 35 Cal.3d at pp. 361–362.)
In contrast, the prosecutor here argued: “But the important part of
that instruction is you have to choose the reasonable interpretation. You
have to reject the unreasonable. . . . [W[hen you look at how the witnesses
testified, you look at the conduct of the defendant and you look at everything
that I’ve shown to you there’s only one reasonable conclusion. It’s the
defendant. So [a] hundred eighty[-]seven days is a long time for justice. I’m
asking you to grant [Jeffrey] and [Doug] their justice. Find this defendant
guilty.” This argument does not begin to compare with the improper
“ ‘Golden Rule’ ” arguments made in Vance and Fields.

33
 Indeed, the courts have rejected similar misconduct claims. A
prosecutor’s argument that “the only just verdict was to convict defendant of
special circumstances murder, because it is ‘the only right thing to do in this
case’ and because ‘[h]e did it’ ” was “fair commentary on the evidence
presented.” (People v. Seaton (2001) 26 Cal.4th 598, 663.) Similarly, a
prosecutor’s request that the jury “ ‘do the right thing, to do justice, not for
our society, necessarily or exclusively, but for [the victim], an 18-year-old boy
who was just working at a gas station one night,’ ” was not improper. (People
v. Medina (1995) 11 Cal.4th 694, 759.) There was “no reasonable probability
that the prosecutor’s brief and isolated comments could have influenced the
jury’s guilt determination.” (Id. at p. 760.) The same is true here.
CALCRIM No. 315
The jury was instructed with CALCRIM No. 315, which lists various
factors for the jury to consider in determining the accuracy of an eyewitness
identification. Defendant claims one of these factors—“[h]ow certain . . . the
witness [was] when he or she made the identification”—violated his due
process rights.8
Our high court recently rejected a like claim. In People v. Lemcke
(2021) 11 Cal.5th 644, 646 (Lemcke), the trial court “provided the jury an
instruction modeled on CALCRIM No. 315 that listed 15 factors it should
consider when evaluating eyewitness identification evidence. One of those
factors stated: ‘How certain was the witness when he or she made an
identification?’ ” The defendant maintained the certainty instruction violated

8 Defendant did not object to this instruction, which generally would
forfeit any challenge on appeal. The “rule of forfeiture does not apply,
however, if the instruction was an incorrect statement of the law [citation], or
if the instructional error affected the defendant’s substantial rights.” (People
v. Franco (2009) 180 Cal.App.4th 713, 719.)

34
his federal and state due process rights to a fair trial “because empirical
research has shown that a witness’s confidence in an identification is
generally not a reliable indicator of accuracy.” (Ibid.)
The court held otherwise, stating that “in determining whether a jury
instruction violated a defendant’s right to due process, the ‘ “instruction ‘may
not be judged in artificial isolation,’ but must be considered in the context of
the instructions as a whole and the trial record.” ’ ” (Lemcke, supra,
11 Cal.5th at p. 647, quoting People v. Foster (2010) 50 Cal.4th 1301, 1335.)
“[T]he instruction does not direct the jury that ‘certainty equals accuracy.’
[Citations.] Although the language may prompt jurors to conclude that a
confident identification is more likely to be accurate, [defendant] was
permitted to call an eyewitness identification expert who explained the
limited circumstances when certainty and accuracy are positively correlated.
Moreover, the court provided additional instructions directing the jury that it
was required to consider the testimony of the expert witness, that the
prosecution retained the burden to prove [defendant’s] identity as the
perpetrator beyond a reasonable doubt, and that witnesses sometimes make
honest mistakes.”9 (Lemcke, at p. 647.)
As did the defendant in Lemcke, defendant here called an “eyewitness
memory and suggestibility” expert who testified about the relationship

9 The court directed, however: “Given the significance that witness
certainty plays in the factfinding process, we refer the matter to the Judicial
Council and its Advisory Committee on Criminal Jury Instructions to
evaluate whether or how the instruction might be modified to avoid juror
confusion regarding the correlation between certainty and accuracy. (See
Cal. Rules of Court, rule 2.1050(d).) Acting pursuant to our supervisory
powers, we further direct that until the Judicial Council has completed its
evaluation, trial courts should omit the certainty factor from CALCRIM No.
315 unless the defendant requests otherwise.” (Lemcke, supra, 11 Cal.5th at
pp. 647–648.)

35
between a witness’s confidence and the accuracy of his or her identification.
He opined “confidence can be related to accuracy but only at the time the ID
is made. . . . Once you get outside of that moment, that decision in that
lineup right there, that’s the only data you have. Once you get outside of that
there are many factors that can [a]ffect witness competence that can make
people more or less confident that can drive my confidence up or down.
Confidence decisions made after that tend to be not related to accuracy
whatsoever.”
And, as in Lemcke, the jury was instructed about the presumption of
innocence, the prosecutor’s burden of proof, that “[p]eople sometimes honestly
forget things or make mistakes about what they remember,” and on the
evaluation of expert testimony.
In sum, to quote from Lemcke, “when considered ‘ “in the context of the
instructions as a whole and the trial record,” ’ [citation], we conclude that
listing the witness’s level of certainty as one of 15 factors the jury should
consider when evaluating an eyewitness identification did not render
[defendant’s] trial fundamentally unfair or otherwise amount to a due process
violation.” (Lemcke, supra, 11 Cal.5th at p. 661.)
CALCRIM No. 371
The jury was instructed with CALCRIM No. 371 as follows: “If the
defendant tried to hide evidence, that conduct may show that he was aware
of his guilt. If you conclude that the defendant made such an attempt, it is
up to you to decide its meaning and importance; however, evidence of such an
attempt cannot prove guilt by itself.”
Defendant claims this instruction was given in error and violated his
due process rights because “the evidence consisted of highly speculative
theories based on inadmissible demeanor evidence that consisted of fifteen

36
mug shots to establish that [defendant] wore facial hair in the past [and] . . .
removed his reading glasses sporadically during trial.”
We have rejected defendant’s claim that this evidence was
inadmissible. And the prosecution need only present “sufficient evidence to
raise an inference that defendant” tried to suppress evidence. (People v.
Alexander (2010) 49 Cal.4th 846, 921–922.)
To the extent defendant claims “that facts giving rise to an inference of
consciousness of guilt must be conclusively established before [the
instructions] may be given, [he] is incorrect; there need only be some evidence
in the record that, if believed by the jury, would sufficiently support the
suggested inference.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
102.)
Accordingly, the trial court did not err in giving the consciousness of
guilt instruction.
CALCRIM No. 372
The jury was also instructed with CALCRIM No. 372 as follows: “If the
defendant fled or tried to flee immediately after the crime was committed or
after he was accused of committing the crime, that conduct may show that he
was aware of his guilt. If you conclude that the defendant fled or tried to flee,
it is up to you to decide the meaning and importance of that conduct.
However, evidence that the defendant fled or tried to flee cannot prove guilt
by itself.”
Defendant claims this instruction “assumed that [he] was in fact the
person at the crime scene,” and maintains the trial court erred because it “did
not direct the jury to address the first step in the analysis, that [defendant]
was in fact the perpetrator at the scene.”

37
 When requesting this instruction, the prosecutor noted: “assuming we
prove identity, we still have to show he met the elements of specific intent.
So this goes towards meeting the element of whether he actually committed
the crime once we prove the identity.” Defense counsel responded: “So we
would then definitely need a clause about that identity must be proved
beyond a reasonable doubt in this instruction.” The court disagreed, stating,
“Isn’t that just what the lawyers argue in argument? [¶] . . . [¶] The D.A.
says his flight is relevant. It’s only relevant if they prove it’s him. They
haven’t done that they can say. That’s what it seems to me.”
CALCRIM No. 372 did not assume the defendant was the perpetrator,
rather, it stated “If the defendant fled or tried to flee . . . that conduct may
show that he was aware of his guilt.” It went on to say, “that the defendant
fled or tried to flee cannot prove guilt by itself.”
In People v. Mason (1991) 52 Cal.3d 909, our Supreme Court rejected
the claim that a flight instruction is improper when identity is at issue. “If
there is evidence identifying the person who fled as the defendant, and if
such evidence ‘is relied upon as tending to show guilt,’ then it is proper to
instruct on flight. [Citation.] ‘The jury must know that it is entitled to infer
consciousness of guilt from flight and that flight, alone, is not sufficient to
establish guilt. [Citation.] The jury’s need to know these things does not
change just because identity is also an issue. Instead, such a case [only]
requires the jury to proceed logically by deciding first whether the [person
who fled] was the defendant and then, if the answer is affirmative, how much
weight to accord to flight in resolving the other issues bearing on guilt. The
jury needs the instruction for the second step.’ ” (Id. at p. 943.)
Defendant also claims the instruction was improper because he did not
act “with the purpose of avoiding observation or arrest,” noting he “did not

38
leave the area and apparently made no attempt to flee from police when
pulled over.” The evidence, however, showed that defendant fled the scene
immediately after the shooting, not at the time of his arrest.
In sum, the trial court did not err in giving the flight instruction.
CALCRIM No. 604
The jury was instructed with CALCRIM 604, the first sentence of
which states: “An attempted killing that would otherwise be attempted
murder is reduced to attempted voluntary manslaughter if the defendant
attempted to kill a person because he acted in imperfect self-defense.”
Defendant maintains this first sentence “created an impermissible burden
shifting presumption.” (Capitalization omitted.) According to defendant,
“[b]y instructing the jurors that they should effectively find [defendant’s]
conduct to be attempted murder unless they were persuaded to ‘reduce’ it to
attempted voluntary manslaughter, the trial court impermissibly slanted the
determination of this pivotal issue toward the prosecution.”
Defendant cites no case so holding with respect to CALCRIM No. 604.
Instead, he relies on People v. Owens (1994) 27 Cal.App.4th 1155 (Owens),
which addresses CALJIC No. 10.42.6.
In Owens, the instruction stated in part: “ ‘The People have introduced
evidence tending to prove’ ” certain criminal conduct. (Owens, supra,
27 Cal.App.4th at p. 1158.) The Court of Appeal concluded that “[i]nstructing
the jury that the People have introduced evidence ‘tending to prove’
appellant’s guilt carries the inference that the People have, in fact,
established guilt. This inference would be eliminated if the phrase ‘for the
purpose of showing’ was substituted for ‘tending to prove,’ so that the
instruction would read: ‘The People have introduced evidence for the purpose
of showing . . . .’ ” (Id. at pp. 1158–1159, capitalization omitted.)

39
 CALCRIM No. 604 does not contain the “tending to prove” language,
nor does it contain any comparable language. Indeed, the last paragraph of
the instruction makes clear: “The People have the burden of proving beyond
a reasonable doubt that the defendant was not acting in imperfect self-
defense. If the People have not met this burden, you must find the defendant
not guilty of attempted murder.”
In any case, “an erroneous instruction requires reversal only when it
appears that the error was likely to have misled the jury . . . and whether an
erroneous or inartfully phrased instruction misled the jury to the defendant’s
prejudice is determined by reviewing the instructions as a whole.” (Owens,
supra, 27 Cal.App.4th at p. 1159.)
In this case, as in Owens, the court instructed the jury as to the
presumption of innocence, the beyond a reasonable doubt burden of proof,
and that no instruction should be construed as an expression of the court’s
opinion on any of the facts. (See Owens, supra, 27 Cal.App.4th at p. 1159.)
Thus, even if the language of the instruction were problematic, “[i]n light of
the entire body of instructions, it is not reasonably likely that [the
instruction] misled the jury on the reasonable doubt standard.” (Ibid.)
Substantial Evidence of Premeditation and Deliberation
Defendant claims there was no substantial evidence establishing
premeditation and deliberation as to the counts of attempted murder.
“ ‘ “When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.] We determine “whether, after viewing the evidence in the

40
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”
[Citation.] In so doing, a reviewing court “presumes in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1212–1213, italics
omitted.) “The standard of review is the same . . . where the People rely
primarily on circumstantial evidence.” (People v. Perez (1992) 2 Cal.4th 1117,
1124.)
Defendant, relying on People v. Anderson (1968) 70 Cal.2d 15
(Anderson), maintains the record fails to demonstrate the three specific
categories of evidence he claims Anderson requires. In Anderson the court
held: “The type of evidence which this court has found sufficient to sustain a
finding of premeditation and deliberation falls into three basic categories: (1)
facts about how and what defendant did prior to the actual killing which
show that the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing—what may be characterized as
‘planning’ activity; (2) facts about the defendant’s prior relationship and/or
conduct with the victim from which the jury could reasonably infer a ‘motive’
to kill the victim, which inference of motive, together with facts of type (1) or
(3), would in turn support an inference that the killing was the result of ‘a
pre-existing reflection’ and ‘careful thought and weighing of considerations’
rather than ‘mere unconsidered or rash impulse hastily executed’ [citation];
(3) facts about the nature of the killing from which the jury could infer that
the manner of killing was so particular and exacting that the defendant must
have intentionally killed according to a ‘preconceived design’ to take his
victim’s life in a particular way for a ‘reason’ which the jury can reasonably
infer from facts of type (1) or (2).” (Id., at pp. 26–27, italics omitted.)

41
 “In our Supreme Court’s most recent iteration on the topic, the court
had occasion to point out that the three categories provide ‘one framework for
reviewing the sufficiency of the evidence supporting findings of premeditation
and deliberation.’ [Citation.] [¶] The high court has further cautioned that
the Anderson categories are only a set of ‘guidelines’ for analysis. (People v.
Sanchez (1995) 12 Cal.4th 1, 32 [, overruled on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22] . . . [‘We have recently explained
that the Anderson factors do not establish normative rules, but instead
provide guidelines for our analysis.’].) [¶] In particular, the court has
emphasized that the three categories themselves do not constitute a
substitute for, or a rewriting of, the actual elements of first degree murder.
(People v. Thomas (1992) 2 Cal.4th 489, 517 . . . [‘Unreflective reliance on
Anderson for a definition of premeditation is inappropriate. The Anderson
analysis was intended as a framework to assist reviewing courts in assessing
whether the evidence supports an inference that the killing resulted from
preexisting reflection and weighing of considerations. It did not refashion the
elements of first degree murder or alter the substantive law of murder in any
way.’].)” (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1112–1113, italics &
fns. omitted.)
“ ‘[P]remeditated’ means ‘considered beforehand,’ and ‘deliberate’
means ‘formed or arrived at or determined upon as a result of careful thought
and weighing of considerations for and against the proposed course of
action.’ ” ’ [Citation.] ‘ “An intentional killing is premeditated and deliberate
if it occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.” ’ [Citations.] ‘The true test is not the
duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be

42
arrived at quickly. . . .’ [Citation.] Such reflection may be revealed by
planning activity, motive, and the manner of the killings, among other
things.” (People v. Potts (2019) 6 Cal.5th 1012, 1027 (Potts).) “ ‘First degree
willful, deliberate, and premeditated murder involves a cold, calculated
judgment, including one arrived at quickly. . . .’ ” (People v. Nazeri, supra,
187 Cal.App.4th at p. 1113.)
Defendant claims “there was a complete lack of evidence to show
planning indicative of a preconceived plan.” Evidence that the defendant
arrived at the scene carrying a weapon, however, suggests planning. (Potts,
supra, 6 Cal.5th at p. 1027; People v. Elliot (2005) 37 Cal.4th 453, 471 [“That
defendant armed himself prior to the attack ‘supports the inference that he
planned a violent encounter.’ ”].) Here, the defendant arrived at the bar right
before closing carrying a loaded firearm. When refused a drink, he pulled out
the gun and pointed it at numerous people. Rather than leaving the bar, he
then pushed his way into a group of patrons, grabbed one by the neck, and
shot him in the head. He then proceeded to shoot another patron who tried to
intervene, and then fled the scene. His actions, thus, indicate some level of
planning, however rapid.
Defendant next urges there was no evidence of motive, the second
Anderson category, because “there is no evidence of a prior relationship”
between defendant and the victims. A “prior relationship,” however, is not a
requirement to prove motive, and in any event, need not be longstanding.
Indeed, “motive to kill [can be] derived from his prior relationship or conduct
with the victim.” (People v. Hovey (1988) 44 Cal.3d 543, 556, italics added.)
Here, motive was evidenced by defendant’s conduct with the victims. He was
angry at being refused service, and he shot the victims after they made
attempts to stop him from aiming his gun at other patrons. Revenge because

43
he did not get the drink he demanded, and anger at the bar patrons for
interfering with brandishing his weapon, is evidence of motive. (See People v.
Miranda (1987) 44 Cal.3d 57, 87 (Miranda) [“As to motive, the evidence
showed that immediately prior to the killing, [the victims] refused to sell beer
to defendant. . . . The conversation between defendant and his victims
suggests that defendant acted with conscious motive and had time to reflect
upon his plan to shoot the victims.”], abrogated on another ground by People
v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4; People v. Watkins (2012) 55
Cal.4th 999, 1026 (Watkins) [“[S]imple revenge because [the victim] did not
relinquish the money” was evidence of motive].) There is, moreover, no
requirement that the motive be rational. “ ‘[The] law does not require that a
first degree murderer have a “rational” motive for killing. Anger at the way
the victim talked to him . . . may be sufficient.’ ” (Miranda, at p. 87.)
Defendant lastly claims there was no evidence of the third Anderson
category—“facts about the manner of killing from which the jury could infer
. . . that the defendant intentionally killed the victim according to a
‘preconceived design.’ ” (Anderson, supra, 70 Cal.2d at p. 27.) Defendant
maintains “the use of [a] firearm to shoot [the victims] does not demonstrate
any preconceived plan to kill them.” To the contrary, defendant arrived at
the bar at 1:30 in the morning with a loaded firearm and pointed the gun at
employees when refused a drink. He then pointed the gun at a group of
patrons, which included the victims, then grabbed Jeffrey by the throat and
pointed the gun at his face. When Jeffrey punched him, defendant shot
Jeffrey in the head. After defendant shot Jeffrey, another man in the group
of patrons, Doug, attempted to grab the gun. Defendant then shot Doug in
the wrist. While this sequence of events happened with relative speed, the
evidence does not show, as defendant claims, that the shooting was simply

44
“impulsive” or an “unintended shooting that arose when physically assaulted
by two men after running into one of them.” Defendant certainly had time to
reflect between the bartender’s denial of a drink and when he shot the
patrons.
In Watkins, the high court concluded similar evidence was sufficient to
show the Anderson factors. “We find sufficient evidence of planning (carrying
the loaded, concealed pistol to the position behind the hood of the truck),
motive (to effectuate a robbery or its attempt by killing the victim-witness, or
simple revenge because [the victim] did not relinquish money) and a manner
of killing indicative of intent to kill (a shot fired from a pistol with a heavy
trigger pull, which hit the victim’s elbow and abdomen as the victim walked
quickly away). Viewed as a whole, the evidence supports a finding of
premeditated and deliberate murder.” (Watkins, supra, 55 Cal.4th at
p. 1026.) So, too, here.
Substantial Evidence of Attempted Murder
Defendant also asserts no substantial evidence supports his convictions
of attempted murder. He first claims “no rational juror could have found
proof beyond a reasonable doubt that the gunman did not act in self-defense
or imperfect self-defense.”
“Self-defense, when based on a reasonable belief that killing is
necessary to avert an imminent threat of death or great bodily injury, is a
complete justification, and such a killing is not a crime. [Citations.] A killing
committed when that belief is unreasonable is not justifiable. Nevertheless,
‘one who holds an honest but unreasonable belief in the necessity to defend
against imminent peril to life or great bodily injury does not harbor malice
and commits no greater offense than manslaughter.’ ” (People v. Elmore
(2014) 59 Cal.4th 121, 133–134, italics omitted.)

45
 Defendant asserts, based on the videotape of the shooting, that it “does
not appear that the gunman was committed to a fistfight and appears to be
trying to leave from the outset of the confrontation with [Jeffrey].” Thus, he
claims “the State’s evidence did not refute the self-defense claim presented by
its own evidence, the surveillance video.”
“[A] victim may respond to an attacker’s initial physical assault with a
physical counterassault, and an attacker who provoked the fight may not in
asserting he was injured in the fray claim self-defense against the victim’s
lawful resistance.” (People v. Ramirez (2015) 233 Cal.App.4th 940, 947.)
Defendant’s assertion that the videotape establishes self-defense is
belied by the other evidence introduced by the prosecution. As detailed in the
previous sections, defendant arrived at the bar with a loaded gun. When he
was refused a drink, he pointed the firearm at the bartender and bouncer.
Rather than leaving the bar, he headed towards a group of patrons, and
pushed his way through, pointing the gun at them. Defendant was the initial
aggressor, grabbing Jeffrey’s neck, and shot him after Jeffrey began hitting
him. Defendant next shot Doug as he attempted to grab defendant’s gun.
Defendant then pointed his gun towards another group of patrons, then
“turned and took off” out the back door of the bar. Simply not appearing to be
“committed to a fistfight” is not sufficient to show self-defense, and the other
evidence presented refuted any inference defendant attempts to draw from
the video.
Defendant also claims no substantial evidence supports his conviction
of attempt to murder Doug, because the “prosecution did not establish intent
to kill.” (Capitalization & underscoring omitted.) Given the evidence in this
case, including that defendant had just shot Doug’s friend Jeffrey in the head

46
and shot Doug when he attempted to grab the gun, there was substantial
evidence from which a reasonable jury could find intent to kill.
Defendant has failed to establish that no reasonable jury could find he
was not acting in self-defense or imperfect self-defense and that he had the
intent to kill. Substantial evidence supports the verdict.10
Finding That Defendant’s Prior Conviction Was a Felony
Defendant also claims there was no substantial evidence supporting
the trial court’s finding that his prior conviction of section 136.1, subdivision
(b)(2), a “wobbler,” was a felony.11 He maintains “there are no records
submitted regarding [his] plea to the charges, with any indication that his
plea to the wobbler section 136.1, subdivision (b)(2) conviction was in fact a
felony.”
“A wobbler offense charged as a felony is regarded as a felony for all
purposes until imposition of sentence or judgment. [Citations.] If state
prison is imposed, the offense remains a felony; if a misdemeanor sentence is
imposed, the offense is thereafter deemed a misdemeanor.” (People v.
McElroy (2005) 126 Cal.App.4th 874, 880.)

10Defendant also maintains the cumulative effect of the claimed errors
denied him due process. Because we have rejected those claims, we
necessarily reject the claim of cumulative error.
11 Section 136.1, subdivision (b)(2), a “wobbler,” provides: “Except as
provided in subdivision (c), every person who attempts to prevent or dissuade
another person who has been the victim of a crime or who is witness to a
crime from doing any of the following is guilty of a public offense and shall be
punished by imprisonment in a county jail for not more than one year or in
the state prison: [¶] . . . [¶] (2) Causing a complaint, indictment,
information, probation or parole violation to be sought and prosecuted, and
assisting in the prosecution thereof.” (See People v. Neely (2004)
124 Cal.App.4th 1258, 1261.)

47
 The felony complaint filed regarding the prior conviction expressly
charged it as a felony. The clerk’s minutes in that prior case indicate the
offense was a felony. Contrary to defendant’s assertion, the advisement and
waiver of rights signed by defendant indicates it was a felony. The abstract
of judgment indicated defendant’s sentence for violation of section 136.1,
subdivision (b)(2) was two years, to be served concurrently. When
defendant’s probation was revoked, he was sentenced to a two-year
concurrent term for his conviction of section 136.1, subdivision (b)(2).
Defendant urges that, under People v. Gallardo (2017) 4 Cal.5th 120
(Gallardo), the trial court impermissibly engaged in “judicial fact-finding” in
concluding defendant’s prior conviction of section 136.1, subdivision (b)(2)
was a felony. In Gallardo, a criminal information alleged that defendant had
a prior conviction for “assault with a deadly weapon or with force likely to
produce great bodily injury (Pen. Code, former . . . § 245, subd. (a)(1)). It
further alleged that this conviction qualified as a ‘serious felony’ conviction
for purposes of Penal Code section 667, subdivision (a)(1). Under that
provision, a criminal defendant who commits a felony offense after a prior
conviction for a ‘serious felony’ is subject to a five-year sentence
enhancement,” and that “serious felony” conviction is also a prior strike.
(Gallardo, supra, 4 Cal.5th at p. 125, fn. omitted.) The court explained, “[t]he
term ‘serious felony’ is defined to include ‘assault with a deadly weapon.’
[Citation.] If defendant committed assault with a deadly weapon, the prior
conviction counted as a strike; if she committed assault by any means of force
likely to produce great bodily injury, it did not.” (Ibid.)
The Gallardo court concluded “a court considering whether to impose
an increased sentence based on a prior qualifying conviction may not
determine the ‘nature or basis’ of the prior conviction based on its

48
independent conclusions about what facts or conduct ‘realistically’ supported
the conviction. [Citation.] That inquiry invades 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.’ ”
(Gallardo, supra, 4 Cal.5th at p. 136.) “The trial court’s role is limited to
determining the facts that were necessarily found in the course of entering
the conviction. To do more is to engage in ‘judicial factfinding that goes far
beyond the recognition of a prior conviction.’ ” (Id. at p. 134.)
Gallardo does not aid defendant, who conflates a trial court’s
determination of whether a defendant had a prior felony conviction with
whether the prior conviction was for a “serious felony” within the meaning of
section 667, subdivision (a)(1). Contrary to his claim, the prosecution was not
required to prove “the exact nature of the section 136.1 crime that [he] pled
to.” The prosecution only had to prove the prior conviction was a felony, not
whether the facts underlying the conviction demonstrated the conviction was
of a “serious felony.” Simply “determining the facts that were necessarily
found in the course of entering the conviction” does not violate the Gallardo
mandate. (Gallardo, supra, 4 Cal.5th at p. 134.)
Enhancements for Prison Priors
Defendant maintains, and the Attorney General concedes, that the two
one-year enhancements imposed for defendant’s prior prison terms must be
stricken.
At the time of defendant’s sentencing, section 667.5, subdivision (b)
provided for a sentence enhancement of one year for each prior prison term
for an offense that was not a violent felony under subdivision (c). Effective
January 1, 2020, the amended version of section 667.5 provides the one-year

49
enhancement applies only to prior prison terms for a sexually violent offense
as defined in Welfare and Institutions Code, section 6600, subdivision (b).
“We agree with the parties that because defendant’s sentence is not yet
final, and because his prior offense[s were] not . . . sexually violent offense[s],
he is entitled to the ameliorative benefit of the amendment.” (People v.
Wilson (2021) 67 Cal.App.5th 819, 832.)
The Attorney General maintains the case should be remanded for
resentencing “because the trial court did not impose the maximum sentence
here” and the trial court should be allowed to “ ‘exercise its sentencing
discretion in light of the changed circumstances.’ ” “[W]hen part of a sentence
is stricken on review, on remand for resentencing ‘a full resentencing as to all
counts is appropriate, so the trial court can exercise its sentencing discretion
in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th
857, 893.) This rule does not apply when “the trial court has already imposed
the maximum possible sentence, [making] a remand for resentencing . . .
unnecessary.” (People v. Gastelum (2020) 45 Cal.App.5th 757, 772–773.)
The trial court did not impose the maximum sentence, but exercised its
discretion to impose the midterm on counts three, four and seven.
Accordingly, remand for a full resentencing is appropriate. (See People v.
Choi (2021) 59 Cal.App.5th 753, 770.)
DISPOSITION
The matter is remanded with directions to strike the one-year
enhancements imposed under Penal Code section 667.5, subdivision (b) and
conduct a full resentencing. Following resentencing, the clerk of the trial
court is directed to amend the abstract of judgment accordingly and forward a

50
copy to the Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.

51
 _________________________
Banke, J.

We concur:

_________________________
Humes, P.J.

_________________________
Margulies, J.

A154417, People v. Lopez

52