People v. O'Connell CA3

Filed 3/14/23 P. v. O’Connell CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----

THE PEOPLE, C093156

Plaintiff and Respondent, (Super. Ct. No. 19F871)

v.

MICHAEL PATRICK BRIAN O’CONNELL,

Defendant and Appellant.

A jury found defendant Michael Patrick Brian O’Connell guilty of first degree
murder (Pen. Code, § 187, subd. (a)—count 1)1 after he shot his roommate in the chest
with a shotgun. The jury also found true a firearm enhancement allegation under section
12022.53, subdivision (d).

1 Undesignated statutory references are to the Penal Code.

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 On appeal, defendant contends: (1) there was insufficient evidence of
premeditation and deliberation to support his conviction for first degree murder; (2) the
trial court erred and violated his constitutional rights by denying his Batson/Wheeler
motion;2 (3) the trial court prejudicially erred and violated his constitutional rights by
instructing the jury with CALCRIM Nos. 3471 and 3472 or, in the alternative, his
counsel rendered ineffective assistance by failing to object to the instructions; and (4) he
is entitled to remand for resentencing because the trial court misunderstood its discretion
to strike the charged enhancement and impose a lesser, uncharged enhancement in its
place or, in the alternative, his counsel rendered ineffective assistance by failing to
request and present evidence to support a lesser enhancement.
We reject defendant’s claims regarding the sufficiency of the evidence, jury
selection, and instructional error on the merits, but agree remand is appropriate to permit
the trial court to exercise its sentencing discretion. We shall therefore vacate the sentence
and remand this case for the limited purpose of allowing the trial court to exercise its
discretion as to whether to strike the section 12022.53, subdivision (d) enhancement and
instead impose a lesser, uncharged enhancement. In all other respects, the judgment is
affirmed.
FACTUAL BACKGROUND3
The victim (Adam Mancebo) and defendant were friends and roommates. The
victim lived in a separate bedroom in defendant’s house.

2 Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69] (Batson) and People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).
3 Following the well-established rule of appellate review, we recite the facts in the
light most favorable to the judgment, drawing all reasonable inferences in support of the
conviction. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)

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 On the day of the shooting, February 6, 2019, defendant’s mother, M.O., drove to
defendant’s house, arriving around 3:30 p.m. She let herself in, set her purse down on the
living room couch, and went to defendant’s room to speak with him. Defendant told her
that he needed to rest, so M.O. went to the living room and watched television.
Around 5:00 p.m., M.O. went back to defendant’s room and knocked on his door.
Defendant answered and they talked for a while in the kitchen area. She then went to the
living room and sat on the couch. Shortly thereafter, defendant came into the living room
with a 12-gauge pump-action shotgun slung on his shoulder. M.O. stated in her police
interview that when she saw the shotgun, she considered telling defendant to put it away.
Armed with the shotgun, defendant went to the victim’s bedroom and tried to open
the door, but found it locked. Defendant banged on the door and yelled to the victim that
he had to “get out.” The victim yelled something back. Defendant then went to the
living room and waited, standing, facing the hallway with his back near the wall.
A few minutes later, the victim, unarmed and wearing only his boxer shorts,
entered the living room, pausing briefly in the doorway. M.O. stated in her interview
with law enforcement that the victim “had his fists balled up and he was coming toward
[defendant], and then [defendant] shot him.” At trial, M.O. described the victim as
“charging” toward the defendant. However, in her interview, she unequivocally stated
that the victim was walking, not running, at the time of the shooting.
M.O. did not see defendant aim the gun at the victim, but she heard the gun fire
and saw the victim fall, first to his knees and then backwards. She testified that the
victim was not within arm’s reach of defendant when he was shot. She estimated that the
victim was about four to six feet away from her, and that she was about three to four feet
away from defendant.
M.O. testified that immediately after the shooting she ran out of the house and
called 911. As she was leaving the house, she heard defendant unloading the shotgun.

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After emptying the gun, defendant followed her outside. Both M.O. and defendant
provided information to the 911 dispatcher while they were waiting for the police.
The police arrived about 5:18 p.m. Defendant was distraught and crying, but
cooperative with police orders. The officers found the shotgun, live rounds, and one
spent round on the couch. The victim was on the floor, bent over, with a gunshot wound
to his chest.
After his arrest, defendant was processed by the police. Defendant had blood
spatter on him, but no observable injuries. Investigators observed blood on defendant’s
left thumb, and defendant commented that his left hand was in the forward position on
the shotgun.
The autopsy revealed that the victim died from the single shotgun wound to his
chest. Stippling on the skin surrounding the wound indicated that the victim was shot at
an “intermediate range.” The autopsy revealed injuries to the victim’s legs, consistent
with him having fallen to his knees. The autopsy did not reveal any defensive wounds to
the victim’s hands.
Detective Greg Ketel reviewed home surveillance video footage recorded by
cameras inside defendant’s house. The footage showed defendant carrying the shotgun
around the house at different times of the day and night during the period from November
2018 through January 2019. The videos showed defendant carrying the shotgun over his
shoulder or in a “low-ready” position, sometimes when others were present.
The video cameras did not capture the shooting but captured some of defendant’s
movements on the day of the shooting. The footage showed a normal interaction
between defendant and the victim in the early morning hours on the day of the shooting.
Later, about 4:58 p.m., the footage showed M.O. walking towards defendant’s room.
About 5:02 p.m., defendant can be seen standing in the kitchen without a shotgun. About
5:04 p.m., defendant reenters the frame with a shotgun. About 5:08 p.m., M.O. can be

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seen leaving the house, followed a few seconds later by defendant, who briefly pauses in
the doorway as he leaves. About 5:20 p.m., police entered the house.
There were no defense witnesses.
PROCEDURAL BACKGROUND
The district attorney filed an information charging defendant with one count of
first degree murder. (§ 187, subd. (a).) It further was alleged that defendant intentionally
and personally discharged a firearm causing death within the meaning of section
12022.53, subdivision (d). The jury found defendant guilty of first degree murder and
also found true the firearm enhancement allegation. The trial court sentenced defendant
to a total aggregate term of 50 years to life, consisting of 25 years to life for the murder
(count 1) and an additional 25 years to life for the firearm enhancement. Defendant filed
a timely notice of appeal from the judgment.
DISCUSSION
I
Sufficiency of Evidence of Premeditation and Deliberation
Defendant contends there was insufficient evidence of premeditation and
deliberation to support his conviction for first degree murder. We disagree.
A. Legal background
A verdict of premeditated first degree murder requires more than a showing of
intent to kill. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) The prosecution must
prove that the defendant willfully, deliberately, and with premeditation, unlawfully killed
a human being with malice aforethought. (People v. Samaniego (2009) 172 Cal.App.4th
1148, 1172.) An unlawful killing with malice aforethought, but without deliberation and
premeditation, is murder in the second degree. (People v. Anderson (1968) 70 Cal.2d 15,
23; § 189, subd. (b); see also People v. Boatman (2013) 221 Cal.App.4th 1253, 1264
[discussing need to distinguish premeditation and deliberation from malice
aforethought].)

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 “ ‘ “In this context, ‘premeditated’ 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 arrived at quickly . . . .’ [Citation.]” (People v. Potts (2019) 6 Cal.5th
1012, 1027.)
In People v. Anderson, supra, 70 Cal.2d 15, our Supreme Court identified three
categories of evidence commonly present in cases of premeditated murder: (1) evidence
of planning activity prior to the killing; (2) evidence of the defendant’s prior relationship
and/or conduct with the victim from which the jury reasonably could infer a motive to
kill; and (3) evidence that the manner in which the defendant carried out the killing was
so particular and exacting that the defendant must have had a preconceived design to take
the victim’s life. (Id. at pp. 26-27.) Anderson held that when evidence of all three
categories is not present, courts typically have required either very strong evidence of
planning, or some evidence of motive in conjunction with evidence of planning or a
deliberate manner of killing. (Id. at p. 27; accord, People v. Elliot (2005) 37 Cal.4th 453,
470.)
However, our Supreme Court has since clarified that the Anderson guidelines are
“descriptive and neither normative nor exhaustive, and that reviewing courts need not
accord them any particular weight.” (People v. Halvorsen (2007) 42 Cal.4th 379, 420
(Halvorsen); accord, People v. Young (2005) 34 Cal.4th 1149, 1183.) In short, “ ‘[t]he
Anderson factors, while helpful for purposes of review, are not a sine qua non to finding
first degree premeditated murder . . . .’ ” (People v. Koontz, supra, 27 Cal.4th at p.
1081.)

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 B. Standard of review
“In reviewing the sufficiency of the evidence to support a criminal conviction, we
review the record ‘ “in the light most favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” [Citation.]’ [Citation.] We do not reweigh the evidence or revisit
credibility issues, but rather presume in support of the judgment the existence of every
fact that could reasonably be deduced from the evidence. [Citation.]” (People v. Pham
(2009) 180 Cal.App.4th 919, 924-925.)
C. Analysis
Using the Anderson factors as a guide, and reviewing the facts in the light most
favorable to the judgment, we conclude there is sufficient evidence to support
defendant’s conviction for first degree, premeditated murder.
There is evidence of planning in that defendant armed himself with a loaded gun
prior to confronting the victim, and shortly thereafter used the gun to kill the unarmed
victim. Although it was not necessarily unusual for defendant to carry a gun around the
house, the video surveillance evidence shows defendant was unarmed and that he
specifically retrieved the gun just before the shooting. This evidence supports an
inference that defendant considered the possibility of homicide in advance. (People v.
Miranda (1987) 44 Cal.3d 57, 87, abrogated on other grounds by People v. Marshall
(1990) 50 Cal.3d 907, 933, fn. 4; accord, People v. Marks (2003) 31 Cal.4th 197, 230
[bringing gun supports inference defendant planned a violent encounter]; People v. Brito
(1991) 232 Cal.App.3d 316, 323 [pointing loaded gun toward victim’s face and making
demands supports inference of planning]; People v. Salazar (2016) 63 Cal.4th 214, 245
[bringing loaded gun to restaurant demonstrated preparation].)
The manner of killing also could support an inference that the shooting was
deliberate and premeditated. After demanding the victim “get out,” defendant, still

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armed with the shotgun, returned to the living room and took a strategic position at the
far side of the room, across from the hallway. A few minutes later, when the victim
entered the living room, unarmed and wearing only his underwear, defendant shot him
squarely in the chest. There was no indication of a struggle to justify defendant’s use of
deadly force, and the victim was not within arm’s reach of defendant when he was shot.
Although M.O. testified that the victim “charged” at defendant with clenched fists,
the jury was free to reject that testimony and instead credit her earlier statement during
her interview with Detective Ketel that the victim was walking toward defendant. From
this, the jury could infer that defendant had time to reflect before making a calculated
decision to kill. And there was no evidence that defendant fired the weapon in a rash or
panicked manner. Investigators observed blood on defendant’s left thumb and defendant
admitted that his left hand was gripping the forward portion of the shotgun when the
shooting occurred. Thus, the jury reasonably could infer that defendant was prepared to
shoot and that the manner of killing suggested a preconceived, deliberate plan, rather than
a rash explosion of violence. (People v. Miranda, supra, 44 Cal.3d at p. 87 [lack of
provocation]; People v. Thompson (2010) 49 Cal.4th 79, 114-115 [close-range shooting
without any provocation or evidence of struggle]; People v. Marks, supra, 31 Cal.4th at
p. 230 [same]; Halvorsen, supra, 42 Cal.4th at p. 422 [close distance shooting in vital
area of body]; People v. Caro (1988) 46 Cal.3d 1035, 1050 [a close-range gunshot to the
face], overruled on another ground as explained in People v. Whitt (1990) 51 Cal.3d 620,
657, fn. 29; see also People v. Elliot, supra, 37 Cal.4th at p. 471 [vulnerability of victim
and evidence of a previously selected location suggest premeditation].)
Additionally, the jury could take account of defendant’s behavior immediately
after the killing—unloading the gun and laying it on the couch—and find this behavior
inconsistent with a rash, impulsive killing. (People v. Disa (2016) 1 Cal.App.5th 654,
667.)

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 We agree with defendant that there is scant evidence of the third Anderson factor,
motive to kill. At most, we could infer that defendant was angry with the victim for some
unspecified reason and therefore wanted him to “get out.” But this is hardly fatal. It is
well established that proof of motive is not required to sustain a conviction for first
degree murder. (People v. Edwards (1991) 54 Cal.3d 787, 814; Halvorsen, supra, 42
Cal.4th at p. 421.)
We acknowledge that the evidence of premeditation and deliberation in this case is
not overwhelming, and that a reasonable jury could have returned a contrary finding. Yet
it is the role of the jury, not the appellate court, to weigh the evidence, resolve conflicting
inferences, and determine whether the People established guilt beyond a reasonable
doubt. (People v. Casares (2016) 62 Cal.4th 808, 823-824, overruled in part on other
grounds in People v. Dalton (2019) 7 Cal.5th 166, 214.) “[T]he relevant question on
appeal is not whether we are convinced beyond a reasonable doubt, but whether any
rational trier of fact could have been persuaded beyond a reasonable doubt that defendant
premeditated the murder.” (People v. Perez (1992) 2 Cal.4th 1117, 1127; accord, People
v. Brady (2010) 50 Cal.4th 547, 561.) “ ‘ “ ‘If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances might
also be reasonably reconciled with a contrary finding does not warrant a reversal of the
judgment.’ ” ’ [Citations.]” (People v. Burney (2009) 47 Cal.4th 203, 253.)
Accepting all reasonable inferences that the jury might have drawn from the
evidence, we conclude a rational trier of fact could have found defendant guilty of first
degree murder beyond a reasonable doubt. We therefore reject defendant’s challenge to
the sufficiency of the evidence.
II
Batson/Wheeler
Defendant argues the trial court erred in concluding he had not made a prima facie
case of discrimination as to prospective juror G.C. He contends that the erroneous denial

9
of his Batson/Wheeler motion requires reversal because it violated his federal
constitutional right to equal protection and his state constitutional right to a jury drawn
from a representative cross-section of the community. We are not persuaded.
A. Procedural background
During voir dire, defense counsel made a “Batson/Wheeler” motion, claiming that
the prosecution had exercised four of its peremptory challenges in a discriminatory
fashion in violation of Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258.
Based on the jurors’ surnames and visual appearances, defense counsel asserted that the
four excluded jurors—F.G., E.L, J.M., and G.C.—were likely members of racial/ethnic
minority groups.4 From this, defense counsel argued that the prosecution was using its
peremptory challenges to purposefully discriminate and systematically exclude minorities
from the jury.
The court denied the motion, concluding that defense counsel had failed to make a
prima facie showing of discrimination. In support of its conclusion, the court found that
the jury appeared to be “remarkably diverse” both in gender and ethnicity.5
After finding that defense counsel failed to make a prima facie case, the court
invited the prosecution to state for the record its nondiscriminatory reasons for excusing
the jurors. The prosecutor first agreed with the court that the defense had not made a

4 Specifically, defense counsel asserted that juror E.L. had black hair and black
eyebrows and a last name generally associated with Asian Americans, and that the other
three jurors had surnames and traits consistent with a Hispanic ethnicity.
5 The trial court also stated that even if a prima facie case had been made, there
were compelling reasons for challenging the jurors based on their voir dire responses.
Specifically, the court noted that F.G. was “extremely introverted”; E.L. had siblings who
had been arrested for violent crime, found law enforcement intimidating, and made some
negative comments about law enforcement; J.M. had been arrested for driving under the
influence (DUI) and had a sister who had been arrested for robbery and fraud; and G.C.
had a DUI conviction.

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prima facie case by showing facts sufficient to support an inference of discriminatory
purpose against a cognizable group. The prosecutor disputed the relevancy of the
surnames because, according to her notes, neither E.L. nor J.M. appeared to be a
members of a racial/ethnic minority group. Nevertheless, the prosecutor stated for the
record her legitimate, nondiscriminatory reasons for excusing each juror.
The trial court denied the Batson/Wheeler motion based on defense counsel’s
failure to make a prima facie showing, without addressing the prosecutor’s stated reasons
for excusing the jurors. The court then continued with voir dire.
B. Legal background
The use of peremptory challenges to exclude members of an identifiable group of
citizens on racial or ethnic grounds is unconstitutional. (People v. Battle (2021) 11
Cal.5th 749, 772 (Battle); Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at
pp. 276-277.) Such conduct violates a criminal defendant’s right to equal protection of
the laws, as well as the right to trial by a jury drawn from a representative cross-section
of the community. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157 (Gutierrez).)
Courts employ a three-step process in evaluating a defendant’s Batson/Wheeler
motion. (Gutierrez, supra, 2 Cal.5th at p. 1158.) “First, the Batson/Wheeler movant
must demonstrate a prima facie case by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.” (Gutierrez, at p. 1158.) There is a
rebuttable presumption that a peremptory challenge has been exercised on a
constitutionally permissible ground, and the burden is on the opposing party to
demonstrate impermissible discrimination. (People v. Bonilla (2007) 41 Cal.4th 313, 341
(Bonilla); People v. Williams (2000) 78 Cal.App.4th 1118, 1125.) To overcome the
presumption, the moving party must produce evidence sufficient to support a reasonable
inference of discriminatory intent. (Gutierrez, at p. 1158; People v. Kelly (2007) 42
Cal.4th 763, 779.)

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 Second, if the movant makes a prima facie showing, the burden shifts to the
proponent of the strike to offer a permissible, nondiscriminatory explanation for the
strike. (Gutierrez, supra, 2 Cal.5th at p. 1158.) “ ‘[E]ven a “trivial” reason, if genuine
and neutral, will suffice.’ ” (People v. Lenix (2008) 44 Cal.4th 602, 613 (Lenix).)
Third, if a neutral explanation is tendered, the court must decide whether the
movant has proven purposeful discrimination. (Gutierrez, supra, 2 Cal.5th at p. 1158;
People v. O’Malley (2016) 62 Cal.4th 944, 974.) At this third step, “ ‘the issue comes
down to whether the trial court finds the prosecutor’s race-neutral explanations to be
credible. Credibility can be measured by, among other factors, the prosecutor’s
demeanor; by how reasonable, or how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial strategy.’ ” (Lenix, supra, 44
Cal.4th at p. 613; see Gutierrez, at p. 1158 [this portion of the inquiry focuses on the
subjective genuineness of the explanation, not its objective reasonableness].) To prevail,
the movant must show that it was “ ‘ “more likely than not that the challenge was
improperly motivated.” ’ ” (Gutierrez, at p. 1158.)
When the trial court has expressly found that the movant failed to make a prima
facie showing, we do not attempt to determine whether we would have made the same
ruling. Instead, we apply a deferential standard of review, considering whether the trial
court’s conclusion is supported by substantial evidence.6 (Battle, supra, 11 Cal.5th at p.
772; accord, People v. Silas (2021) 68 Cal.App.5th 1057, 1095.)

6 We acknowledge that the California Supreme Court previously has characterized
the issue of whether evidence in the record supports an inference of discrimination as a
legal question, subject to independent review. (See People v. Cornwell (2005) 37 Cal.4th
50, 73, overruled in part on other grounds as stated in People v. Doolin (2009) 45 Cal.4th
390, 421, fn. 22; and see People v. Clark (2016) 63 Cal.4th 522, 567.) However, we
follow the more recent holding in Battle, supra, 11 Cal.5th at page 772. In any event, our
conclusion would not change if we applied a de novo standard of review.

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 We examine the entire record before the trial court at the time of the motion to
determine whether it supports an inference of group bias. (Battle, supra, 11 Cal.5th at p.
773.) Though proof of a prima facie case may be established by any information in the
record, our Supreme Court has observed that “[c]ertain types of evidence are especially
relevant to this inquiry, including [1] whether the prosecutor has struck most or all of the
members of the venire from an identified group, [2] whether a party has used a
disproportionate number of strikes against members of that group, [3] whether the party
has engaged prospective jurors of that group in only desultory voir dire, [4] whether the
defendant is a member of that group, and [5] whether the victim is a member of the group
in which the majority of the remaining jurors belong.” (Ibid.; accord, People v. Scott
(2015) 61 Cal.4th 363, 384.) A court may also consider nondiscriminatory reasons for a
peremptory challenge that are clearly established in the record and that necessarily dispel
any inference of bias. (Battle, at p. 773; Scott, supra, at p. 384.) However, “a reviewing
court may not rely on a prosecutor’s statement of reasons to support a trial court’s finding
that the defendant failed to make out a prima facie case of discrimination. . . . [T]he fact
that the prosecutor volunteered one or more nondiscriminatory reasons for excusing the
juror is of no relevance at the first stage.” (Scott, at p. 390; accord, People v. Garcia
(2011) 52 Cal.4th 706, 746 (Garcia).)
C. Analysis
As an initial matter, we note that defendant’s appeal is focused on the peremptory
challenge of a single prospective juror: G.C. Thus, while facts relating to other
prospective jurors may be relevant evidence, our review is limited to the prosecution’s
exercise of the peremptory challenge against that juror. Based on this record, we agree
with the trial court that defendant failed to sustain his burden of showing a prima facie
case of discrimination.
We begin by noting that defendant’s motion argued that the prosecution violated
Batson/Wheeler by using peremptory challenges to exclude “minority” jurors

13
(specifically, three Hispanic-surnamed jurors and one Asian-surnamed juror). However,
the California Supreme Court has held that minorities, or “ ‘people of color,’ ” is not a
cognizable group for purposes of Batson/Wheeler analysis. (People v. Davis (2009) 46
Cal.4th 539, 583; accord, People v. Neuman (2009) 176 Cal.App.4th 571, 575-578.)
Accordingly, in assessing whether defendant has established a pattern of discrimination,
we shall consider the motion only as it relates to the Hispanic-surnamed jurors. (Davis,
supra, at p. 584 [Hispanic-surnamed jurors may constitute a cognizable class]; but see
People v. Cruz (2008) 44 Cal.4th 636, 656 [Caucasian woman who apparently acquired
Hispanic surname through marriage is not member of cognizable group].)
Second, this was not a situation in which the ethnicity of the defendant or the
victim “ ‘raise[d] heightened concerns about whether the prosecutor’s challenge was
racially motivated.’ ” (People v. Rhoades (2019) 8 Cal.5th 393, 430.) There is no
evidence that the defendant (Michael Patrick Brian O’Connell) was Hispanic, or that the
victim (Adam Mancebo) was a member of the group to which a majority of the remaining
jurors belonged. Thus, the record reveals no specific reason why the prosecution would
be motivated to exclude people with Hispanic surnames from the jury. (Ibid.) “Although
this circumstance does not affirmatively demonstrate the absence of discrimination, it
‘identifies a factor that, because it is absent, fails in this case to support an inference of
discrimination.’ [Citation.]” (People v. Dement (2011) 53 Cal.4th 1, 20, overruled on
other grounds as stated in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
Third, a prima facie showing was not established merely because the prosecution
excused a few prospective jurors with Hispanic surnames. While no prospective juror
may be struck on improper grounds, our Supreme Court has explained that “ ‘[a]s a
practical matter, . . . the challenge of one or two jurors can rarely suggest a pattern of
impermissible exclusion.’ ” (People v. Bell (2007) 40 Cal.4th 582, 598 (Bell), overruled
in part on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; accord,
Garcia, supra, 52 Cal.4th at p. 747; Bonilla, supra, 41 Cal.4th at p. 343.) A bare claim

14
consisting of “little more than an assertion that a number of prospective jurors from a
cognizable group ha[ve] been excused” is “particularly weak,” and falls “far short” of
raising a reasonable inference of discrimination. (People v. Panah (2005) 35 Cal.4th
395, 442.) The weakness in this case is compounded because defendant has failed to
show how many of the prospective jurors had Hispanic surnames or whether any jurors
with Hispanic surnames ultimately were impaneled on the jury.7 (Garcia, at p. 747;
People v. Neuman, supra, 176 Cal.App.4th at p. 582; Bell, supra, at p. 599; see People v.
Clark (2011) 52 Cal.4th 856, 906 [fact that impaneled jury included a member of the
identified group is indication of nondiscriminatory intent].)
Fourth, defendant has not shown that the prosecution’s questioning of jurors with
Hispanic surnames was cursory or materially different from the questioning of other
jurors. (Bonilla, supra, 41 Cal.4th at p. 343.)
Finally, although not critical to our decision, the record of voir dire reveals
nondiscriminatory reasons for excusing the jurors in question, including that F.G. was
extremely introverted; J.M. had a DUI and had a sister who had been arrested multiple
times; and G.C. had a DUI.8 (See People v. Panah, supra, 35 Cal.4th at p. 442 [negative
experience with police or the arrest of a prospective juror or a close relative is a neutral

7 We also note that the prosecutor did not believe prospective juror J.M. was
Hispanic. (Bonilla, supra, 41 Cal.4th at p. 344 [where a prosecutor is unaware of a
prospective juror’s group status, it logically follows that the prosecutor did not
discriminate on that basis].)
8 Defendant argues that G.C.’s DUI is not a valid reason to excuse him from the
jury because Juror 1249142, who served on the jury, also had a DUI. We do not find a
comparative analysis between G.C. and Juror 1249142 helpful given that the record does
not reveal the ethnicity of Juror 1249142. (See Bell, supra, 40 Cal.4th at p. 600; Lenix,
supra, 44 Cal.4th at p. 622; cf. People v. Rhoades, supra, 8 Cal.5th at p. 432, fn. 17.) But
even if we consider only the testimony of both jurors, it is clear that Juror 1249142, who
had previously served on a jury, was not similarly situated with G.C.

15
reason for exclusion]; People v. Arellano (2016) 245 Cal.App.4th 1139, 1161; People v.
Gutierrez (2002) 28 Cal.4th 1083, 1123-1124; Lenix, supra, 44 Cal.4th at p. 614.)
The trial court correctly determined that defendant failed to make a prima facie
showing of group bias with respect to juror G.C. Accordingly, the Batson/Wheeler
motion was properly denied.
III
Instructional Error
Defendant next argues the trial court erred and violated his constitutional rights by
instructing the jury with CALCRIM Nos. 3471 and 3472. Defendant contends the
instructions were not supported by the evidence and that giving the instructions
impermissibly deprived him of the ability to rely on self-defense or imperfect self-
defense, violating his Sixth and Fourteenth Amendment rights to due process and to
present a defense. He also contends that if his counsel forfeited this issue by failing to
object, he was denied effective assistance of counsel.
The Attorney General argues that defendant forfeited the claim by failing to
object. If not forfeited, the Attorney General contends there was no error, or that any
error was harmless. Exercising our discretion to reach the merits, we find no reversible
error.
A. Procedural background
During a discussion of proposed jury instructions, defense counsel requested
instructions on self-defense (CALCRIM No. 505) and voluntary manslaughter/imperfect
self-defense (CALCRIM No. 571). The prosecution objected on the grounds of
insufficient evidence of self-defense. The court acknowledged that the evidence of self-
defense “does not appear very strong,” but agreed to give the requested instructions,
concluding that the strength of the evidence was an issue for the jury.
If the court was inclined to instruct on self-defense, the prosecution requested that
the court also instruct the jury with CALCRIM No. 3471 (“Right to Self-Defense:

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Mutual Combat or Initial Aggressor”) and CALCRIM No. 3472 (“Right to Self-Defense:
May Not Be Contrived”). Defense counsel did not object.
The court instructed the jury with CALCRIM No. 3471, modified as follows to
delete the references to mutual combat: “A person who started a fight has a right to self-
defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND [¶]
2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable
person would understand, that he wanted to stop fighting and that he had stopped
fighting. [¶] If the defendant meets these requirements, he then had a right to self-
defense if the opponent continued to fight.” The court also instructed the jury with the
standard form of CALCRIM No. 3472: “A person does not have the right to self-defense
if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”
B. Standard of review
A trial court must give a requested instruction only if there is substantial evidence
to support it. (People v. Marshall (1997) 15 Cal.4th 1, 39.) “Evidence is ‘[s]ubstantial’
for this purpose if it is ‘sufficient to “deserve consideration by the jury,” that is, evidence
that a reasonable jury could find persuasive.’ [Citation.]” (People v. Ross (2007) 155
Cal.App.4th 1033, 1049-1050.) We review the propriety of a trial court’s instructions de
novo. (People v. Fiore (2014) 227 Cal.App.4th 1362, 1378.) A challenged instruction
may not be judged in isolation but must be considered in the context of the instructions as
a whole. (Ibid.) “ ‘Jurors are presumed able to understand and correlate instructions and
are further presumed to have followed the court’s instructions.’ [Citation.]” (Ibid.)
C. Analysis
As a threshold matter, we address the Attorney General’s argument that defendant
forfeited his contention by failing to object to the instructions below. We conclude that
even if defendant technically forfeited his claim by failing to object, it is within our
discretion to address his claim on the merits to determine whether there was an

17
impairment of his substantial rights. (People v. Amezcua and Flores (2019) 6 Cal.5th
886, 916; People v. Felix (2008) 160 Cal.App.4th 849, 858.) We do so here.
Turning to the merits, we reject defendant’s claim that the trial court erred by
instructing the jury with CALCRIM Nos. 3471 and 3472. Defendant’s argument that the
instructions were not supported by substantial evidence relies almost exclusively on his
own theory of the case, while essentially ignoring the reasonable inferences that can be
drawn in support of the judgment.9 When all the evidence is considered, and viewed in
the light most favorable to the judgment, we conclude there was substantial evidence to
support the challenged instructions. In particular, the evidence shows that defendant,
armed with a loaded shotgun, knocked on the victim’s bedroom door and demanded that
he “get out.” Still armed with the shotgun, defendant then returned to the living room
and waited for the victim. As the victim walked into the room, unarmed and wearing
nothing but underwear, defendant shot him in the chest. There was no evidence of any
previous altercation or quarrel leading up to the deadly encounter.
On this record, a reasonable jury could infer that defendant was the initial
aggressor and/or that he provoked the confrontation with the intent to create an excuse to
use deadly force. (See, e.g., People v. Bolton (1979) 23 Cal.3d 208, 215; People v.
Salazar, supra, 63 Cal.4th at pp. 222, 244, 249-250; People v. Eulian (2016) 247
Cal.App.4th 1324, 1334; People v. Enraca (2012) 53 Cal.4th 735, 761-762.) Thus, it was
not error to instruct the jury with CALCRIM Nos. 3471 and 3472.

9 We also note that many of the factual assertions in defendant’s brief are not
supported by any citation to the appellate record, in violation of California Rules of
Court, rule 8.204(a)(1)(C).

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 IV
Sentencing Discretion
Defendant next contends that we must remand for resentencing because the trial
court was unaware of its discretion to impose a lesser, uncharged section 12022.53
firearm enhancement in lieu of the greater, charged section 12022.53, subdivision (d)
enhancement found true by the jury. He also contends that his counsel was ineffective in
failing to request that the firearm enhancement be reduced and in failing to present
factors in mitigation to support striking and reducing the enhancement.
A. Legal background
Section 12022.53 establishes a three-tiered system for firearm enhancements:
subdivision (b) provides for a 10-year enhancement for the personal use of a firearm;
subdivision (c) provides for a 20-year enhancement for the personal and intentional
discharge of a firearm; and subdivision (d) provides for a 25-year-to-life enhancement for
the personal and intentional discharge of a firearm causing great bodily injury or death.
(People v. Tirado (2022) 12 Cal.5th 688, 695 (Tirado).)
Effective January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) amended
section 12022.53, subdivision (h) to give trial courts discretion to strike or dismiss an
enhancement in the interest of justice. (Tirado, supra, 12 Cal.5th at p. 696.) However,
before the California Supreme Court’s decision in Tirado, Courts of Appeal were split on
whether trial courts had the discretion to strike a firearm enhancement found true by the
jury and impose a lesser, uncharged enhancement. (Tirado, supra, 12 Cal.5th at p. 696;
compare People v. Morrison (2019) 34 Cal.App.5th 217, 222-223 [holding that a court
may strike a section 12022.53, subdivision (d) enhancement and impose a lesser
included, uncharged section 12022.53 enhancement in its place] with People v. Tirado
(2019) 38 Cal.App.5th 637, 642-644, review granted Nov. 13, 2019, S257658, revd. by
Tirado, supra, 12 Cal.5th at p. 702 [concluding that courts are limited to the binary
choice of imposing the charged enhancement or striking/dismissing it].)

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 In January of 2022, the California Supreme Court resolved this split. In Tirado,
the court held that “Morrison correctly described the scope of a trial court’s sentencing
discretion under section 12022.53.” (Tirado, supra, 12 Cal.5th at p. 697.) In short, the
Supreme Court rejected the notion that trial courts are faced with a binary choice of either
imposing or striking a section 12022.53 enhancement, and held that courts have
discretion to impose an uncharged, lesser section 12022.53 enhancement where the facts
supporting that enhancement were alleged and found true by the jury. (Id. at pp. 699-
700.)
B. Procedural background
The information in this case charged defendant with a single firearm enhancement
pursuant to section 12022.53, subdivision (d). The jury returned a true finding on the
enhancement allegation. During the sentencing hearing, defense counsel asked the trial
court to strike the enhancement under section 12022.53, subdivision (h). The trial court
acknowledged its discretion to strike the enhancement, but declined to do so, finding no
“good cause” to “disregard[] . . . th[e] statutory [sentencing] scheme.” The court was not
asked to consider imposing a lesser firearm enhancement and there is nothing in the
record to suggest the court was aware it had the discretion to impose a lesser, uncharged
enhancement.
C. Standard of review
We review a trial court’s ruling on a motion to strike a firearm enhancement for
abuse of discretion. (People v. Pearson (2019) 38 Cal.App.5th 112, 116.) In reviewing
for abuse of discretion, we are guided by the principle that defendants are entitled to
sentencing decisions made by a court exercising informed discretion. (Tirado, supra, 12
Cal.5th at p. 694.) “A court acting while unaware of the scope of its discretion is
understood to have abused it. [Citation.]” (Ibid.) “In such circumstances, . . . the
appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware

20
that it had such discretion.’ [Citations.]” (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391.)
D. Analysis
Defendant contends he is entitled to remand for resentencing because the trial
court was unaware of its discretion to strike the charged enhancement and impose a lesser
enhancement under section 12022.53, subdivision (b) or (c).
Although defendant did not ask the trial court to impose a lesser firearm
enhancement, we nevertheless conclude that the claim is cognizable on appeal. At the
time of sentencing, the issue of whether courts had discretion to impose a lesser firearm
enhancement was relatively new and there was a conflict among the Courts of Appeal.
(Tirado, supra, 12 Cal.5th at p. 696.) Further, the overwhelming majority of appellate
courts that considered the issue had concluded that courts lacked authority to substitute a
lesser enhancement. (People v. Tirado, supra, 38 Cal.App.5th 637, 642-644, rev.gr. and
revd. by Tirado, supra, 12 Cal.5th 688; People v. Valles (2020) 49 Cal.App.5th 156, 166-
167, review granted July 22, 2020, S262757, judg. vacated and cause remanded for
reconsideration in light of Tirado, supra, 12 Cal.5th 688; People v. Garcia (2020) 46
Cal.App.5th 786, 790-794, review granted June 10, 2020, S261772, judg. vacated and
cause remanded for reconsideration in light of Tirado, supra, 12 Cal.5th 688; People v.
Yanez (2020) 44 Cal.App.5th 452, 458-460, review granted Apr. 22, 2020, S260819,
judg. vacated and cause remanded for reconsideration in light of Tirado, supra, 12
Cal.5th 688.) Thus, we shall exercise our discretion to address the merits. (People v.
Morrison, supra, 34 Cal.App.5th at p. 224; GreenLake Capital, LLC v. Bingo
Investments, LLC (2010) 185 Cal.App.4th 731, 739, fn. 6; People v. Smith (2003) 31
Cal.4th 1207, 1215.)
On the merits, the Attorney General contends defendant’s claim should be denied
because the trial court is presumed to have known and applied the applicable law. We
disagree. The general presumption that a trial court is presumed to have followed

21
established law does not apply where, as here, the law in question was unclear or
uncertain when the lower court acted. (People v. Jeffers (1987) 43 Cal.3d 984, 1000;
accord, People v. Diaz (1992) 3 Cal.4th 495, 567; People v. Chambers (1982) 136
Cal.App.3d 444, 457.) Further, the trial court’s comments at the hearing suggest it was
unaware it had discretion to impose a lesser firearm enhancement. The court recognized
it had discretion to strike the charged enhancement, but otherwise described the case as
governed by a “very straightforward sentencing scheme.” The court continued: “It’s all
codified by the California [L]egislature. Twenty-five to life is the codified sentence for
the first-degree murder, . . . and the enhancement carries with it . . . an additional
sentence . . . expressly stated by the [L]egislature to be consecutive. . . . [¶] So the
sentence will be two consecutive 25 to life terms for a total aggregate term of 50 years to
life.” In contrast, there is nothing to suggest the court was aware of its discretion to
impose a lesser enhancement. On this record, we cannot presume that the trial court was
aware of the full scope of its discretion. (See People v. Johnson (2022) 83 Cal.App.5th
1074, 1093.)
The Attorney General argues that even if the trial court was unaware of its
discretion, remand is unnecessary because the record clearly indicates the trial court
would have imposed the same section 12022.53, subdivision (d) enhancement. We are
not persuaded. The Attorney General relies on a comment made by the court in response
to defense counsel’s argument that sentencing should be about rehabilitation:
“Sometimes, when a crime is so egregious, and a defendant has been given so many
opportunities to succeed, the best the [c]ourts can do is take the individual off the street
for the longest period of time possible in order to assure public safety.” However, this
statement merely explained the court’s reasoning for not striking the enhancement in its
entirety. Construed in context, this statement does not “clearly indicate” that the trial
court would have imposed the same section 12022.53, subdivision (d) enhancement even
if the court had been aware it could impose a lesser one. (People v. McDaniels (2018)

22
22 Cal.App.5th 420, 427; see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
Thus, we conclude it is appropriate to remand this matter to allow the trial court to
exercise its sentencing discretion in light of Tirado, supra, 12 Cal.5th 688. We express
no opinion regarding how the court should exercise that discretion on remand.
In light of our decision to remand for resentencing, it is unnecessary for us to
address defendant’s claims of ineffective assistance of counsel.
DISPOSITION
We vacate the sentence and remand this case for the limited purpose of allowing
the trial court to exercise its discretion as to whether to strike the section 12022.53,
subdivision (d) enhancement and instead impose a lesser, uncharged enhancement. If the
court reduces the enhancement, it shall resentence defendant accordingly and issue a new
abstract of judgment. If it does not reduce the enhancement, it shall reinstate defendant’s
sentence. In all other respects, the judgment is affirmed.

KRAUSE , J.

We concur:

RENNER , Acting P. J.

EARL ,J

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