People v. Elias CA2/3

Filed 5/11/23 P. v. Elias CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions 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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B319595

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA078183)
v.

MICHAEL A. CRUZ ELIAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert G. Chu, Judge. Affirmed.
Richard A. Levy, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
 A jury convicted Michael A. Cruz Elias1 of the murder of
Jose Ahumada. At trial, the killer’s identity was in dispute. As
to that issue, the trial court admitted evidence that Elias had
participated in a shooting just weeks before Ahumada was killed
and that bullets recovered from that shooting and the Ahumada
shooting were fired from the same gun. On appeal, Elias
contends that this evidence should have been excluded or limited.
He also contends that the trial court made prejudicial comments
during voir dire, should have instructed the jury on voluntary
manslaughter, and should have dismissed a firearm
enhancement under recently enacted law. We reject all
contentions and affirm the judgment.
BACKGROUND
I. The prosecution’s case
A. Wendy C.’s testimony
At Elias’s trial for Ahumada’s murder, Wendy C. was the
prosecution’s main witness, and she testified under a grant of
immunity. According to Wendy, she and Ahumada had met just
a few months before March 2018 and would occasionally get
together to drink and smoke marijuana. Although Ahumada
wanted to be more than friends, Wendy refused. On the evening
of March 5, 2018, Ahumada asked Wendy if she wanted to hang
out. Wendy agreed but asked if her friend Elias could come with
them, even though Elias and Ahumada had never met. Wendy
had known Elias for about a year, and although she said they had

1
It is unclear if defendant’s surname is Cruz Elias or Elias.
We refer to defendant as Elias, intending no disrespect.

2
not been intimate, she also testified that they had been intimate
“[o]nly a little bit.”
Ahumada picked up Wendy and Elias in his car.2 Wendy
sat in the front passenger seat, and Elias sat in the backseat.
After buying beer, they went to Ahumada’s “connect’s house”
where he bought cocaine. Then they went to “the view,” a place
off of Pearblossom Highway in the mountains where they parked
on a dirt road. Ahumada and Elias drank beer and snorted
cocaine, and Wendy smoked marijuana.
They were all just sitting there quietly getting high and
listening to music, when gunshots came from the backseat
directed at Ahumada. In shock, Wendy saw blood everywhere.
Ahumada was dead. At Elias’s direction, Wendy helped him put
Ahumada’s body into the car’s trunk. Elias then drove Wendy
home. Wendy did not know what Elias did thereafter.
B. The investigation
The next day, March 6, 2018, the police received a report
that a car had been abandoned at a location in North Hollywood
that was two blocks from where Elias lived. Law enforcement
recovered the car, which belonged to Ahumada. Five 9-
millimeter bullets and Ahumada’s cell phone with the SIM card
removed were recovered from the car. Subsequent testing found

2
Wendy testified that Ahumada picked her and Elias up
from her home. But Wendy had been reported missing since
February 27, 2018, and she did not return home until two days
after Ahumada was murdered.

3
Elias’s DNA on the steering wheel and interior rear driver’s
door.3
About seven months after Ahumada disappeared, his
remains were discovered in a shallow grave in Lancaster near
Highway 14. A medical examiner determined that he had
suffered multiple gunshot wounds but could not determine the
exact number of wounds. However, a sweatshirt and t-shirt
recovered with the remains had five bullet holes in them.
After law enforcement posted a reward for information
about Ahumada, a tip led them to Wendy. Detectives interviewed
her three times. During the first interview in November 2018,
Wendy initially said she and Ahumada went to the view alone a
long time ago, and she denied knowing Elias. After the detective
exhorted Wendy to tell the truth, Wendy began to cry and said
Ahumada had tried to “force” himself on her. She also admitted
she hung out with Elias “a lot.” She then said a “white guy” high
on cocaine was with her, Elias, and Ahumada that night at the
view, the white guy and Ahumada argued, and the white guy
shot Ahumada. She denied helping bury the body.
In her second interview with detectives in January 2019,
Wendy at first maintained that the white guy killed Ahumada
and denied that Elias was the shooter. The detectives then told
Wendy that they knew there was no white guy, that Elias was
the shooter, and that if she continued being dishonest then she
could become an accessory to murder. Wendy then said Elias had
killed Ahumada. She denied that anything happened just before
Elias shot Ahumada, saying they were just doing drugs and

3
The defense argued that the DNA evidence was, at most,
consistent with Elias being an accessory after the fact by helping
to bury the body.

4
listening to music. However, Ahumada had previously made
advances at Wendy. Also, her relationship with Elias was
“kinda” romantic. She didn’t know if Ahumada did anything to
make Elias jealous, although she agreed that Elias was the
jealous type. And when asked what led to the shooting and
whether “it had something to do with this guy [Ahumada] having
an interest in you,” Wendy said, “Maybe that.”
C. Prior shooting evidence
Over a defense objection, the prosecution introduced
evidence that Elias was involved in another shooting just weeks
before Ahumada was murdered. Sandra Quintanilla testified
that on the evening of February 16, 2018, she was at a liquor
store in Palmdale with two friends she identified as Listo and
Kevin. They had all been drinking. While in the store, someone
got into a physical altercation with the store’s clerk. Quintanilla,
Listo, and Kevin left. Hours later, they were walking when a car
approached them with five people inside, including the store’s
clerk. Hostile words were exchanged. Quintanilla challenged
them to a one-on-one fight, so she briefly went home to get a
knife. When she got back outside, someone from inside the car
shot at them. Quintanilla saw a person in the backseat chamber
a round into a handgun and hand the gun to the driver, who shot
the gun.
Not long after the shooting was reported to law
enforcement, an officer stopped a car matching the description of
the car involved in the shooting. Four, not five, men, including
Elias, were in the car. No weapons were found.
Quintanilla identified Elias as the shooter from a
photographic six-pack. However, at trial, the parties stipulated
that after the shooting, Quintanilla told an officer that the store

5
clerk drove the car, and after retrieving the knife, she heard
gunshots fired in her direction but did not see from where they
were fired.
D. Firearm expert testimony
A firearm expert examined Ahumada’s car and, based on
tests using a rod to determine the trajectory of bullets, opined
that the shots were fired from the backseat. The firearm expert
also analyzed bullets recovered from the Quintanilla shooting
and bullets recovered from Ahumada’s car. He determined that
they were fired from the same gun.4
II. Defense evidence
A forensic psychologist testified that detectives coerced
Wendy’s statement implicating Elias. The expert said, “This was
a very powerful session and focused on shifting Wendy from
‘Mike had no involvement’ to ‘Mike was the shooter,’ and
succeeded in doing that.”
III. Verdict and sentence
Elias was charged with and a jury found him guilty of
second degree murder with a personal gun use allegation (Pen.
Code,5 §§ 187, subd. (a), 12022.53, subd. (d)). On March 25, 2022,
the trial court sentenced Elias to a total term of 40 years to life
(15 years to life plus 25 years to life for the gun enhancement).

4
We discuss the firearm expert’s testimony in greater detail
below.

5
All further undesignated statutory references are to the
Penal Code.

6
 DISCUSSION
I. Prior shooting evidence
Elias contends that evidence he was involved in another
shooting in the weeks preceding Ahumada’s murder should have
been excluded and that its admission violated his federal and
state constitutional rights. As we now explain, we disagree.
A. Additional background
Before trial, Elias moved to exclude evidence of the prior
February 2018 shooting involving Quintanilla on the grounds
there was insufficient foundation, it was inadmissible under
Evidence Code section 352, and admitting it would violate his
state and federal constitutional rights. As to foundation, defense
counsel argued that Quintanilla saw a man in the car hand Elias
a gun but did not see Elias fire a gun. The prosecutor countered
that it was expecting to use the evidence to negate self-defense or
accident, but that it would also be admissible to establish
identity, as bullets recovered from both crimes were fired from
the same gun. The trial court admitted the evidence, finding that
Elias’s possession of a gun, even though prejudicial, was
“extremely probative” and not outweighed by the probability it
would consume an undue amount of time, create a danger of
undue prejudice, or confuse or mislead the jury.
B. The trial court did not abuse its discretion by
admitting the evidence
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is “evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency
in reason to prove or disprove any disputed fact that is of

7
consequence to the determination of the action.” (Id., § 210.)
Generally, evidence of prior criminal acts is inadmissible to show
a defendant’s disposition to commit such acts. (Id., § 1101,
subd. (a).) However, evidence that a person committed an
uncharged crime may be admitted to prove something other than
the defendant’s character, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake, as
well as to attack or support the credibility of a witness. (Id.,
§ 1101, subds. (b), (c).) Even if evidence is admissible under
Evidence Code section 1101, it may be excluded under Evidence
Code section 352 if its probative value is substantially
outweighed by the probability its admission will necessitate
undue consumption of time or create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.
Although admitting evidence of a defendant’s prior
criminality could prejudice the defendant’s case and render
suspect the trial’s outcome, whether to admit such evidence rests
in the trial court’s sound discretion. (People v. Harris (1994) 22
Cal.App.4th 1575, 1580–1581.)
Here, Elias first argues that the trial court failed to comply
with its gatekeeping function to determine by a preponderance of
the evidence the existence of the prior uncharged act and his
connection to the act as preliminary factual issues. (Evid. Code,
§ 403, subd. (a); People v. Winkler (2020) 56 Cal.App.5th 1102,
1144.) Specifically, Elias argues that the trial court was required
to find by a preponderance of the evidence that the gun belonged
to him and that he would have continued to possess it three
weeks later when Ahumada was killed. Elias thus asserts that
all the proffer showed was he had constructive, as opposed to
actual, possession of the gun.

8
 We disagree the trial court had to find that Elias owned the
gun before it could admit the evidence. Rather, the trial court
had to find that Elias was connected to the prior shooting and the
gun. (See People v. Winkler, supra, 56 Cal.4th at p. 1144.) The
proffer of evidence before trial was that Quintanilla identified
Elias as one of the car’s occupants and saw someone hand him
the gun. This was sufficient to show by a preponderance of the
evidence that Elias was connected to the gun that, three weeks
later, was used to kill Ahumada. That evidence was thereafter
introduced at trial that Quintanilla gave different statements
about who the driver was—she identified Elias as the driver and
shooter from a photographic six-pack, but she told an officer soon
after the incident that the store’s clerk drove the car and she
didn’t see who fired the shots—went to the weight of the evidence
and not its admissibility.
For these reasons, People v. Smith (1921) 55 Cal.App. 324,
which Elias cites, is distinguishable. In that case, the People’s
theory was that the defendant murdered his wife by poisoning
her with cyanide. The prosecutor admitted evidence that a can of
cyanide was in the filing room of the truck company the
defendant worked for, and defendant had been seen coming in
and out of the room. (Id. at p. 331.) The court found that the
evidence should have been excluded because there was no
evidence connecting the defendant to the can of cyanide other
than that it was in a room at his workplace and because there
was no evidence the defendant knew of the can’s existence. In
contrast, the evidence here is that Elias was in a car with just
three or four other people and that someone passed the gun to
him. Thus, Elias knew about the gun and possessed it.

9
 Elias next contends that even if the prior shooting was
admissible under Evidence Code section 1101, it should have
been excluded under Evidence Code section 352. His argument
again rests on the notion that there was insufficient evidence he
owned the gun and was the one who used it in the prior incident.
As we have said, establishing ownership of the gun was
unnecessary. Rather, the highly probative value of the evidence
was that Elias was involved in a prior shooting with the gun later
used to kill Ahumada. (See, e.g., People v. Sanchez (2019) 7
Cal.5th 14, 55–56 [evidence defendant had a gun shortly before
at-issue murders properly admitted]; People v. Carpenter (1999)
21 Cal.4th 1016, 1052 [same].) The evidence therefore went to
identity.
And even had Quintanilla not testified that Elias was the
shooter, Elias’s mere involvement in that prior shooting was a
sufficient basis to admit the evidence because it still showed his
connection to the gun, raising the reasonable inference he was
able to access it three weeks later to kill Ahumada. Moreover,
the evidence did not consume undue time, as it was limited to two
witnesses (Quintanilla and an officer) and a stipulation. Nor was
there a risk it would confuse or mislead the jury. Instead, the
issue was simple: three weeks before Ahumada was shot, Elias
had the gun used to shoot Ahumada.
For the same reasons, Elias’s trial was not fundamentally
unfair. (See generally Estelle v. McGuire (1991) 502 U.S. 62, 70;
People v. Partida (2005) 37 Cal.4th 428, 439 [even incorrect
evidentiary ruling denies a defendant due process of law only if it
makes trial fundamentally unfair].)

10
II. Firearm expert testimony
Relying on People v. Azcona (2020) 58 Cal.App.5th 504
(Azcona), Elias contends that the trial court erred by allowing the
firearm expert to testify that the bullets from the Quintanilla
and Ahumada shootings were fired from the same gun.
Azcona, supra, 58 Cal.App.5th at page 508, involved a
series of shootings occurring over a one-month period. At the
defendant’s trial for those shootings, the prosecution’s firearm
expert testified that bullet casings recovered from two crime
scenes were fired from the same gun “ ‘to the practical exclusion
of all other guns.’ ” (Id. at p. 510.) The expert based his
conclusion on his visual comparison of the casings. The
defendant had objected to the expert’s testimony, arguing that
recent studies undermined the reliability of visually comparing
toolmarks on bullet casings such that it was no longer admissible
under People v. Kelly (1976) 17 Cal.3d 24, 32, which held that a
scientific technique is admissible in California if it is generally
accepted in the scientific community. The Court of Appeal found
that even if Kelly applied to the toolmark examination at issue,
the defendant, who relied heavily on three reports, two from the
National Academy of Sciences, criticizing that technique, had not
met his burden of showing that a clear majority of the scientific
community no longer accepted the technique as reliable. (Azcona,
at pp. 512–513; see also People v. Cowan (2010) 50 Cal.4th 401,
470 [ballistics comparisons and toolmark identification through
the use of molds were not new techniques beyond common
understanding and not subject to Kelly].) Azcona, at page 513,
thus was “unable to say, on this record, that firearm toolmark
comparison testimony is no longer admissible in California.”

11
 Nonetheless, Azcona, supra, 58 Cal.App.5th at page 513,
went on to find that the trial court had failed in its gatekeeping
function of ensuring that the expert’s opinions were supported by
material on which the expert relied. Where significant criticism
of the expert’s method has been presented, a trial court must
“carefully determine what conclusions can reliably be drawn from
the methodology in question.” (Ibid.) By allowing “unfettered
expert testimony that went far beyond what the underlying
material supported”—that the matching marks on the casings
were “ ‘much more than can ever happen by random chance,’ and
therefore the projectiles came from the same gun, ‘to the practical
exclusion of all other guns’ ”—the trial court abandoned its
gatekeeping function because the expert’s conclusion was
supported merely by his broad reference to numerous studies on
the subject to see what can happen by random chance. (Id. at pp.
513–514.)
Elias interprets Azcona as holding that visual comparisons
of bullets or casings, although admissible, are insufficient to
allow an expert to express a scientific certainty in the opinion.
He therefore argues, as he did below, that the firearm expert
could only testify that the bullets from the two crimes were
consistent with having been fired from the same gun.
The first problem with this argument is that the firearm
expert here did not testify that the bullets were fired from the
same gun to any degree of scientific certainty. In contrast, the
Azcona expert testified, “ ‘It would be in the billions to be wrong
on this’ ” and “ ‘it is so certain that I don’t think there’s any
reasonable chance that it’s wrong.’ ” (Azcona, supra, 58
Cal.App.5th at p. 519 [conc. opn. of Greenwood, P.J.].) The
firearm expert here made no similar statement and was not

12
asked to opine on any scientific certainty he had regarding his
opinion.
The second problem is that we do not interpret Azcona as
holding that visual toolmark comparisons are, as a matter of law,
so scientifically suspect that wholesale limitations must be placed
on firearm expert testimony in all cases. Rather, Azcona held
there was insufficient foundation in that case for the expert’s
testimony that the casings were fired from the same gun with
scientific certainty. The defense in Azcona had presented
criticism of toolmark visual analysis in the form of three reports
and an expert’s testimony. Here, however, defense counsel did
not present any reports, expert testimony, or other evidence
criticizing the specific ballistics methodology. Defense counsel
merely cited Azcona6 to support her argument that the firearm
expert was limited to saying the bullets appeared to be consistent
with being fired from the same gun. Defense counsel otherwise
did not respond to the prosecutor’s proffer that his firearm
expert’s methodology differed from the “line counting method” the
Azcona expert used; that is, the Azcona expert testified that his
identification criteria required six individual marks in a row
made by the firing pin. (Azcona, supra, 58 Cal.App.5th at p. 510.)
The prosecutor here said his firearm expert instead used a
“totality-of-the-circumstances” examination to reach his
conclusion the bullets were fired from the same gun.7 The

6
The concurrence in Azcona summarized the reports.

7
Defense counsel responded to the prosecutor’s proffer by
pointing out that “nobody has the entire universe of guns
available at their disposal to be able to” state they were fired
from the same gun, especially where, as here, the gun was never

13
firearm expert thereafter testified at trial that he examined the
bullets’ rifling characteristics, referring to the spiral grooves in a
gun’s barrel that “impart twist to the bullet” to give it accuracy.
In this case, the bullets had polygonal rifling. The expert then
referred to a database into which rifling characteristics are
entered. From this, the expert narrowed down the bullets’
possible manufacturers. Thus, while the Azcona expert and the
firearm expert here both used a visual toolmark analysis, the
firearm expert here examined rifling characteristics and not
marks made by the firing pin.
The firearm expert also presented a basis for his conclusion
that the bullets recovered from both shootings were fired from
the same gun. He said that when a gun is manufactured,
inherent microscopic details make a gun barrel unique so that
when a bullet is fired from it, these details are imparted to the
bullet. The firearm expert testified that in 100 years of
traditional firearms identification, no one has seen two gun
barrels, even from the same production line, exhibit the same
individual characteristics. The expert had personally
participated in national studies in which he was given 15
unknown fired bullets fired from 10 consecutively manufactured
barrels off the same production line having the same operator,
tool, speed rate, and metals, and he was able to match each bullet
to the barrel from which it had been fired. Defense counsel did
not cross-examine the expert about his bullet comparison
testimony.

recovered. In response, the trial court said, “Well, I don’t know
that; right? If this expert has the experience and the foundation
is laid for him to make that definitive conclusion, I’ll allow it.
Obviously, you can cross him on that conclusion.”

14
 We conclude that no error occurred in admitting the
firearm expert’s testimony, and therefore we have no need to
address prejudice. Still, it is notable that the defense did not
argue that the ballistics evidence should be excluded. The
defense instead argued that the firearm expert should be limited
to saying that the bullets from the two crimes were consistent
with being fired from the same gun, i.e., the bullets used to kill
Ahumada and those used to shoot at Quintanilla were consistent
with having been fired from the same gun. Thus, the evidence—
even using Elias’s watered down formulation of it—still
connected him to the gun used to murder Ahumada.
III. Failure to instruct on voluntary manslaughter
Elias contends that the trial court erred in not sua sponte
instructing the jury on voluntary manslaughter, heat of passion.
We disagree that the trial court had a duty to instruct on that
theory.
A trial court must instruct on all general principles of law
relevant to the issues raised by the evidence, including lesser
included offenses, even in the absence of a request. (People v.
Smith (2013) 57 Cal.4th 232, 239.) Instruction on a lesser
included offense is required when there is evidence the defendant
is guilty of the lesser, but not the greater, offense. (People v.
Landry (2016) 2 Cal.5th 52, 98.) This duty is not satisfied by
instructing on only one theory if other theories are supported by
the evidence. (People v. Lee (1999) 20 Cal.4th 47, 61.)
Substantial evidence is that which a reasonable jury could find
persuasive. (People v. Williams (2015) 61 Cal.4th 1244,
1263.) The existence of any evidence, no matter how weak, will
not justify an instruction (ibid.), but the testimony of a single

15
witness, including the defendant, may suffice (People v. Wyatt
(2012) 55 Cal.4th 694, 698).
We independently review whether the trial court erred by
failing to instruct on a lesser included offense. (People v.
Nelson (2016) 1 Cal.5th 513, 538.) In making this determination,
we do not evaluate the credibility of the witnesses. (People v.
Wyatt, supra, 55 Cal.4th at p. 698.) We view the evidence in the
light most favorable to the defendant. (People v. Millbrook (2014)
222 Cal.App.4th 1122, 1137.)
Voluntary manslaughter is the intentional but
nonmalicious killing of a human being, and is a lesser included
offense of murder. (§ 192, subd. (a); People v. Nelson, supra, 1
Cal.5th at p. 538; People v. Moye (2009) 47 Cal.4th 537, 549.)
A killing may be reduced from murder to voluntary manslaughter
if it occurs upon a sudden quarrel or in the heat of passion on
sufficient provocation, or if the defendant kills in the
unreasonable but good faith belief that deadly force is necessary
in self-defense. (People v. Landry, supra, 2 Cal.5th at p. 97;
Moye, at p. 549.)
“The heat of passion sufficient to reduce murder to
manslaughter ‘exists only where “the killer’s reason was actually
obscured as the result of a strong passion aroused by a
‘provocation’ sufficient to cause an ‘ “ordinary [person] of average
disposition . . . to act rashly or without due deliberation and
reflection, and from this passion rather than from
judgment.” ’ ” ’ ” (People v. Landry, supra, 2 Cal.5th at p. 97.)
Thus, heat of passion manslaughter has objective and subjective
components. (People v. Moye, supra, 47 Cal.4th at p. 549; People
v. Enraca (2012) 53 Cal.4th 735, 759.) The “provocation which
incites the defendant to homicidal conduct in the heat of passion

16
must be caused by the victim [citation], or be conduct reasonably
believed by the defendant to have been engaged in by the victim”
(People v. Lee, supra, 20 Cal.4th at p. 59), and must have been
sufficiently provocative to cause an ordinary person of average
disposition to act rashly or without due deliberation and
reflection, i.e., “ ‘from this passion rather than from judgment’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 939). To satisfy
the subjective component, the defendant must have killed while
under the actual influence of such a strong passion induced by
legally adequate provocation. (Moye, at p. 550; People v.
Millbrook, supra, 222 Cal.App.4th at p. 1139.) The passion
aroused may be any violent, intense, high-wrought or
enthusiastic emotion other than revenge. (Millbrook, at p. 1139.)
Substantial evidence to support an instruction may exist even in
the face of inconsistencies presented by the defense itself and
when the defense fails to request the instruction based on trial
tactics. (In re Hampton (2020) 48 Cal.App.5th 463, 480.)
To support his argument that there was sufficient evidence
to give a voluntary manslaughter instruction, Elias first refers to
Wendy’s statements that he and Ahumada were romantically
interested in her. Elias then cites Wendy’s statement that once
when she was at the view with Ahumada, he tried to force
himself on her. From this, Elias posits that he shot Ahumada
because he reasonably believed, rightly or wrongly, that
Ahumada was forcing himself on Elias’s “paramour.”
Even if we assumed Ahumada made some kind of advance
to Wendy that night, there is still no evidence of the objective and
subjective components of voluntary manslaughter. That is,
assuming Ahumada did something that could be perceived as
inappropriate, what precisely did he do? Did he make an off-color

17
comment to Wendy, touch her, try to kiss her? There is no
evidence of what he specifically did that might have constituted
legally adequate provocation such that it caused Elias to shoot
him. (See generally People v. Beltran, supra, 56 Cal.4th at
p. 957.) There was similarly no evidence Elias was actually
influenced by such a strong passion caused by that provocation
rather than from judgment. (Id. at p. 939; see, e.g., People v.
Manriquez (2005) 37 Cal.4th 547, 585 [no testimony that victim’s
insults enraged defendant].) To the contrary, that Elias had a
gun could undercut any argument he acted in a heat of passion:
why bring a gun to a social event if you are just planning to hang
out and look at the view?
IV. Trial court’s comments during voir dire
Elias contends that during voir dire the trial court
improperly emphasized the importance of circumstantial
evidence in a case where, as the prosecutor said in argument,
circumstantial evidence was the star witness. As we explain, our
review of voir dire shows that the trial court did not make
statements favoring the prosecution.8
A trial court must refrain from making comments before
the jury suggesting it has allied itself with one side or the other.
(People v. Seumanu (2015) 61 Cal.4th 1293, 1320; see also People
v. Tatum (2016) 4 Cal.App.5th 1125, 1130.) In Tatum, for
example, the trial court told prospective jurors during voir dire
that they would judge witnesses’ credibility and not to prejudge

8
The People argue that the defense did not object to the
comments, thereby forfeiting the issue. (See generally People v.
Monterroso (2004) 34 Cal.4th 743, 781.) We nonetheless address
the issue on the merits. (See generally § 1259.)

18
anybody. The trial court then gave an example of prejudgment,
saying that based on her horrible experiences with plumbers, she
did not believe a plumber would tell the truth. Such
prejudgment, the trial court concluded, would be unfair. The
defense moved for a mistrial based on the trial court’s comments
because the defense alibi witness was a plumber. (Tatum, at
pp. 1128–1129.) The trial court denied the motion, but the Court
of Appeal held it should have been granted because the judge’s
comments bore on the credibility of a witness. (Id. at p. 1131.)
Nothing remotely like what happened in Tatum occurred
here. The trial court here did not express bias in favor of
circumstantial evidence. Rather, our review of the entirety of
voir dire shows the trial judge and counsel emphasized that
direct and circumstantial evidence were equally valid. The
record shows that circumstantial evidence was first addressed
during voir dire of the jury panel,9 when the prosecutor gave
examples of direct and circumstantial evidence. After telling
jurors they would be instructed that direct and circumstantial
evidence are “the same” with neither being better than the other,
the prosecutor gave another example of circumstantial evidence.
In the example, the prosecutor stops his car because cars in front
of him have stopped. However, the car behind the prosecutor
fails to stop and hits him. When questioned by CHP, the driver
who hit the prosecutor said a third person hit her and pushed her
into the prosecutor’s car. CHP sees no damage to the back of the
car that hit the prosecutor, and so writes that person a ticket.
Later, the trial court returned to the topic of evidence,
saying that although “everybody would want direct evidence

9
Members of the panel were seated and heard the
challenged comments.

19
because, you know, if you have a situation where someone saw
something happen, a lot of people may prefer that.” The trial
court then said, “But [the prosecutor] gave a great hypothetical
regarding the car accident where circumstantial evidence . . . is
also very valuable in proving some things happening.” The trial
court then asked a prospective juror if the juror would follow an
instruction to evaluate direct and circumstantial evidence
equally. The prospective juror agreed.
Elias argues that the trial court calling the prosecutor’s
hypothetical “great” “tipped the balance in favor of the
prosecution’s case.” It did no such thing. In context, the trial
court was clearly saying that the hypothetical was great, not that
circumstantial evidence is so great that it can prove a suspect’s
guilt even if the evidence is weak. Indeed, the totality of the voir
dire shows that the trial court, as well as counsel,10 told the jury
the exact opposite: that circumstantial and direct evidence are to
be treated equally and that if the prosecution did not prove its
case beyond a reasonable doubt based on circumstantial evidence,
the jurors had to find the defendant not guilty.
Nor do we agree that the trial court “enhance[d] the value
of the circumstantial evidence” during a colloquy with a
prospective juror. During defense voir dire, a prospective juror
commented that circumstantial evidence was imperfect and not
“strong enough evidence.” The trial court addressed the juror,
saying that no “evidence is really ever perfect” and rarely is there
video of the incident. The trial court then gave two hypotheticals,

10
Defense counsel, for example, told jurors that direct and
circumstantial evidence are both “acceptable” and that if there is
a reasonable interpretation of the circumstantial evidence
pointing to innocence, then the jury had to acquit.

20
one in which a juror believed that circumstantial evidence proved
the case beyond a reasonable doubt and another in which the
juror did not believe that. The trial court explained, “That’s all
we’re asking everybody to do . . . whether it’s direct evidence or
circumstantial evidence, you have to listen to that and you have
to decide whether that evidence is strong enough for you to
believe beyond a reasonable doubt that these certain things are
proven, right? [¶] And sometimes circumstantial evidence, you
may think . . . that evidence is not strong enough. I don’t believe
that raises to proof beyond a reasonable doubt. Sometimes the
circumstantial evidence, you’ll feel like, you know what? That’s
enough for me. That—based on everything together, I think that
is enough for me. Again, that’s exactly what we’re asking you to
do.”
By this, the trial court did not tell prospective jurors to
elevate circumstantial evidence above direct evidence. Rather, to
the extent the prospective juror was saying circumstantial
evidence was insufficient to prove the elements of a crime beyond
a reasonable doubt, the trial court properly disabused the
prospective juror of that misunderstanding. The trial court thus
ensured that prospective jurors correctly understood the law,
that, as the jurors were later instructed, circumstantial and
direct evidence are both acceptable types of evidence, with
neither necessarily more reliable than the other, and with neither
being entitled to greater weight than the other. (CALCRIM
No. 223.) In short, nothing in the trial court’s pretrial remarks
misstated or diluted the burden of proof or was likely to confuse
or mislead the jury as to the process for determining the case.
(See People v. Freeman (1994) 8 Cal.4th 450, 503–505.)

21
 Elias’s attempt to analogize this case to People v. Lyons
(1956) 47 Cal.2d 311 and People v. Moore (1954) 43 Cal.2d 517,
thus fails. The defendant in Lyons was on trial for two counts of
lewd conduct on two young girls. The trial court gave a standard
cautionary instruction stating that jurors were required to
examine the prosecuting witnesses’ testimony with caution.
(Lyons, at p. 320.) But the trial court modified the instruction,
adding in its own handwriting: “ ‘and the fact that the charge
here made is one difficult to disprove should not deter you from
rendering a verdict of guilty, if you are convinced beyond a
reasonable doubt that the defendant is guilty.’ ” (Ibid.) In the
Court of Appeal’s view, although the addition was not a
misstatement of law, it unnecessarily emphasized a point already
made—that viewing the victim’s testimony with caution was not
a bar to a finding of guilt—and therefore could suggest that the
trial court was inclined to believe the defendant was guilty. (Id.
at pp. 322–323.)
Similarly, in People v. Moore, supra, 43 Cal.2d at pages 526
to 527, the trial court gave two instructions on self-defense that,
although not misstatements of law, were stated from the
prosecution’s viewpoint instead of impartially as between the
People and the defendant. In the absence of an instruction
stating the law of self-defense from the defendant’s viewpoint, an
impression could have been created in the jury’s mind that the
judge believed that self-defense had not been established. (Id. at
p. 527.)
Lyons and Moore are distinguishable because they concern
jury instructions and not comments made during voir dire.
The comments here did not amount to instruction. (See People v.
Seumanu, supra, 61 Cal.4th at p. 1357 [challenge to trial court’s

22
comments during voir dire is claimed judicial error, not
instructional error].) In any event and as we have said, the trial
court’s comments were proper. They did not misstate the law or
suggest that the trial court believed circumstantial evidence was
somehow more worthy than direct evidence.
For the same reasons, we reject Elias’s contention that the
trial court’s statements rendered his trial fundamentally unfair.
(See generally Partida, supra, 37 Cal.4th at p. 439.)
V. Trial court’s comment about reasonable doubt
In a related argument, Elias contends that during voir dire
the trial court urged jurors to make decisions based on their
hearts rather than on an analysis of the evidence. We discern no
prejudicial error.
A well-settled rule is that it is improper to tell jurors that
emotion may reign over reason and a critical and neutral
evaluation of the evidence. (People v. Holmes, McClain and
Newborn (2022) 12 Cal.5th 719, 788–789; People v. Covarrubias
(2016) 1 Cal.5th 838, 894.) Elias argues that the trial court twice
violated this rule, first when telling a prospective juror, “Let’s
say, that there’s only circumstantial evidence in this case, but the
detectives piece together all their evidence so well that in your
mind you believe that based on everything that you’ve heard,
because, you know, the witness testimony was consistent with
the physical evidence, again, they pieced together everything. So
in your mind, you felt that the prosecutor proved its case beyond
a reasonable doubt based on circumstantial evidence. [¶] Could
you vote guilty in that situation if you in your heart believed that
they proved their case beyond a reasonable doubt?” (Italics
added.)

23
 The trial court asked a second prospective juror if the juror
could vote not guilty if the juror believed that the prosecutor had
not proven the elements of the crime beyond a reasonable doubt,
even if the prosecution called 200 witnesses. The trial court then
asked, “Let’s say, the prosecutor called one witness. But based on
that one witness’s testimony, you feel in your heart that based on
that one witness’s testimony and the evidence presented, it was
enough to prove beyond a reasonable doubt that the defendant is
guilty. [¶] In that situation, you would have to vote guilty, could
you do that?” (Italics added.)
We do not agree that the trial court’s comments can
reasonably be interpreted as urging jurors to base any decision on
a vague emotion, i.e., their “heart,” as opposed to a critical and
neutral evaluation of the evidence. Indeed, in the first comment,
the trial court referred to making decisions based on evidence—
witness testimony and physical evidence—that created in the
juror’s “mind” proof beyond a reasonable doubt. And in the
second comment, the trial court again referred to evidence—
witness testimony and other evidence—that was not enough to
prove beyond a reasonable doubt the elements of the crime. In
both instances, the trial court linked “heart” to the reasonable
doubt standard; that is, jurors had to believe in their hearts that
the elements of the crime were proven beyond a reasonable
doubt.
In a similar case, the prosecutor argued to the jurors that if
they “ ‘have that feeling, that conviction, that gut feeling that
says yes, this man is guilty, he’s guilty of these crimes . . . beyond
a reasonable doubt.’ ” (People v. Barnett (1998) 17 Cal.4th 1044,
1156.) The defendant argued that telling jurors guilt could be
based on a “gut feeling” would have led them to think they could

24
convict him on a standard of proof lower than reasonable doubt.
(Ibid.) The court rejected that argument, saying that the
prosecutor was merely telling jurors to trust their gut feelings in
assessing witness credibility and conflicts in the testimony.
(Id. at p. 1157.) Moreover, the prosecutor otherwise told jurors to
examine the evidence.
The cases Elias cites do not otherwise persuade us that the
comments here were erroneous. In United States v. Hernandez
(3rd Cir. 1999) 176 F.3d 719, 729, the trial court told jurors that
there was no specific definition of reasonable doubt, rather, “It’s
what you in your own heart and your own soul and your own
spirit and your own judgment determine is proof beyond a
reasonable doubt.” (Italics omitted.) In State v. McMillan (2010)
44 Kan.App.2d 913, 920, the prosecutor said what reasonable
doubt comes down to is “if you, in your hearts and in your minds,
after hearing all the evidence and taking all the evidence into
consideration, you feel in your hearts and in your minds that the
State had proven each and every element of the crime charged,
you have reached that reasonable doubt standard and you must
find the defendant guilty.” The appellate courts in both cases
found the comments to be error.
The comments in United States v. Hernandez completely
divorced the concept of “heart” from the reasonable doubt
standard, saying that there was no definition of reasonable doubt
so instead the jurors should follow their hearts. In contrast, the
trial court here linked the two, saying jurors had to believe in
their hearts that the crime had been proven beyond a reasonable
doubt. As for State v. McMillan, we are not inclined to agree with
its finding that the comments were error, and, in any event, we
are not bound by this non-California authority. (People v. Troyer

25
(2011) 51 Cal.4th 599, 610 [California courts not bound by out-of-
state authorities]; People v. Williams (2013) 56 Cal.4th 630, 668
[federal appellate decisions not binding on California courts].)11
In any event, any misstatement by the trial court did not
prejudice Elias, because the jury was properly instructed and
both counsel properly stated the reasonable doubt standard in
their arguments. As to the instructions, the trial court gave the
standard reasonable doubt instruction, CALCRIM No. 220, which
directed that proof “beyond a reasonable doubt is proof that
leaves you with an abiding conviction that the charge is true.
The evidence need not eliminate all possible doubt because
everything in life is open to some possible or imaginary doubt. In
deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all
the evidence that was received throughout the entire trial.
Unless the evidence proves the defendant guilty beyond a
reasonable doubt, he is entitled to an acquittal and you must find
him not guilty.” The trial court also instructed the jury to follow
the law as instructed (CALCRIM No. 200) and not to take
anything the trial court “said or did during the trial as an
indication of what I think about the evidence, the witnesses, or
what your verdict should be” (CALCRIM No. 3530). We presume
that the jury followed the instructions given. (People v. Silveria
and Travis (2020) 10 Cal.5th 195, 271–272.)
As to what counsel said, the prosecutor in closing argument
read a part of CALCRIM No. 220 to the jury, that jurors had to
have an abiding conviction the charge is true. The prosecutor

11
We also note that the court found the error did not
prejudice the defendant. (State v. McMillan, supra, 44
Kan.App.2d at pp. 923–924.)

26
added that jurors had to be “convinced” they “made the right call.
There was a lot of evidence that it was him.” The prosecutor told
the jury that 100 percent was not required, but it had to be
convinced beyond a reasonable doubt. That is, “you’re convinced
beyond a reasonable doubt . . . [if] the evidence you heard that
fits all the facts that you heard is that he’s guilty. The only
reasonable explanation that fits all the evidence.” Defense
counsel similarly told jurors that reasonable doubt meant there
was only one reasonable way to interpret the evidence. The law
requires jurors to have “a lasting, abiding conviction that the
charge is true, and that there’s no reasonable explanation for the
evidence that points to innocence.”
Given the instructions and the argument, it not reasonably
likely that any misstatement during voir dire caused a juror to
convict Elias on a standard lower than reasonable doubt. (See,
e.g., People v. Barnett, supra, 17 Cal.4th at p. 1157 [likelihood
prosecutor’s comment caused misunderstanding mitigated by
trial court’s admonishments to follow the law and instructions
given by the court]; see generally People v. Johnsen (2021) 10
Cal.5th 1116, 1167.) Nor did the trial court’s statement amount
to a federal constitutional violation that deprived Elias of his
right to a fair trial. (See generally People v. Partida, supra, 37
Cal.4th at p. 439.)
VI. Instruction on testimony of single witness
Elias contends that the trial court erred by instructing the
jury with CALCRIM No. 301, which provided that the “testimony
of only one witness can prove any fact. Before you conclude that
the testimony of one witness proves a fact, you should carefully
review all the evidence.” In support, Elias cites State v. Dever
(2022) 2022 UT App. 35, 508 P.3d 158, *161, *170, which held

27
that giving a similar instruction in a child sexual abuse case was
prejudicial error because the instruction suggested that the
complaining witness’s testimony carried more weight than other
testimony and evidence. But we are not bound by out-of-state
authority. (People v. Troyer, supra, 51 Cal.4th at p. 599.)
Instead, we are bound by decisions of our California
Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 454.) Our Supreme Court has held that where
corroboration is not required, a trial court may instruct the jury
with CALCRIM No. 301, and that giving it does not violate a
defendant’s constitutional rights. (People v. Rincon-Pineda
(1975) 14 Cal.3d 864, 884–885; People v. Tran (2022) 13 Cal.5th
1169, 1201; People v. Turner (1990) 50 Cal.3d 668, 696.)
VII. Cumulative error and prejudice
Elias asserts that the cumulative effect of the purported
errors requires reversal, even if they were individually harmless.
Because we have found no prejudicial error, “there is no
cumulative prejudice to address.” (People v. Landry, supra, 2
Cal.5th at p. 101.)
VIII. Motion to dismiss the firearm enhancement
At sentencing, the trial court refused Elias’s request to
strike the 25-year firearm enhancement (§ 12022.53, subd. (d))
after finding that he posed a threat to public safety. Elias now
raises two issues as to the imposition of that enhancement. First,
under recent amendments to section 1385, the trial court was
obligated to strike the enhancement. Second, even if the trial
court retained discretion to impose the enhancement, it abused
its discretion in doing so. We disagree with both contentions.

28
 A. Statutory interpretation
Before 2018, trial courts had to impose a section 12022.53
enhancement. (People v. Tirado (2022) 12 Cal.5th 688, 695.) The
Legislature then enacted Senate Bill No. 620 to give trial courts
discretion to strike the enhancement in the interest of justice.
(Tirado, at pp. 695–696; § 12022.53, subd. (h).) Thereafter, the
Legislature in 2021 enacted Senate Bill No. 81 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 721, § 1), which amended section 1385 “to
specify factors that the trial court must consider when deciding
whether to strike enhancements from a defendant’s sentence in
the interest of justice.” (People v. Sek (2022) 74 Cal.App.5th 657,
674; People v. Walker (2022) 86 Cal.App.5th 386, 395, review
granted Mar. 22, 2023, S278309 [Sen. Bill No. 81 fine tunes how
a court exercises sentencing discretion] (Walker).) The amended
statute applies to sentences imposed on or after January 1, 2022,
and accordingly applies to Elias’s sentence.
As amended, section 1385, subdivision (c), now provides in
relevant part:
“(1) Notwithstanding any other law, the court shall dismiss
an enhancement if it is in the furtherance of justice to do so,
except if dismissal of that enhancement is prohibited by any
initiative statute.
“(2) In exercising its discretion under this subdivision, the
court shall consider and afford great weight to evidence offered by
the defendant to prove that any of the mitigating circumstances
in subparagraphs (A) to (I) are present. Proof of the presence of
one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.
‘Endanger public safety’ means there is a likelihood that the

29
dismissal of the enhancement would result in physical injury or
other serious danger to others. [¶]
“(A) Application of the enhancement would result in a
discriminatory racial impact as described in paragraph (4) of
subdivision (a) of Section 745.
“(B) Multiple enhancements are alleged in a single case. In
this instance, all enhancements beyond a single enhancement
shall be dismissed.
“(C) The application of an enhancement could result in a
sentence of over 20 years. In this instance, the enhancement shall
be dismissed.
“(D) The current offense is connected to mental illness.
“(E) The current offense is connected to prior victimization
or childhood trauma.
“(F) The current offense is not a violent felony as defined in
subdivision (c) of Section 667.5.
“(G) The defendant was a juvenile when they committed
the current offense or any prior offenses, including criminal
convictions and juvenile adjudications, that trigger the
enhancement or enhancements applied in the current case.
“(H) The enhancement is based on a prior conviction that is
over five years old.
“(I) Though a firearm was used in the current offense, it
was inoperable or unloaded.” (§ 1385, subd. (c)(1)–(2), italics
added.)
Elias interprets the emphasized sentence in section 1385,
subdivision (c)(2)(C), as requiring trial courts to strike any
enhancement resulting in a sentence greater than 20 years,
without regard to public safety. Accordingly, because imposing
the firearm enhancement here would increase his sentence from

30
15 years to life to 40 years to life, the trial court should have
stricken the enhancement. The People counter that reading the
statute as a whole shows that trial courts shall strike an
enhancement if one of the mitigating circumstances specified in
subparagraphs (A) to (I) are present unless the trial court finds
that doing so would endanger public safety. Accordingly, the trial
court acted within its discretion to impose the enhancement
because the trial court found that Elias posed a danger to public
safety.
In a case such as this involving statutory interpretation,
our fundamental task is to determine the Legislature’s intent so
as to effectuate the law’s purpose, beginning with an examination
of the statute’s words and giving them a plain, commonsense
meaning. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; Laurel
Owner’s Assn., Inc. v. Appellate Division of Superior Court (2018)
28 Cal.App.5th 1146, 1151.) We consider the entire scheme’s
language and related statutes, harmonizing terms when possible.
(Gonzalez, at p. 1141.) If unambiguous, the plain meaning of the
statutory language controls, and we need go no further. (Laurel,
at p. 1151.) But if language is subject to more than one
reasonable construction, we may consider extrinsic aids,
including legislative history. (People v. Sinohui (2002) 28 Cal.4th
205, 211.) Ultimately, we choose the construction comporting
most closely with the legislators’ apparent intent, with a view to
promoting the statute's general purpose, rather than defeating it.
(Gonzalez, at p. 1141.) We review questions of statutory
interpretation de novo. (Ibid.)
On its face and reading it as a whole, section 1385 does not
mandate that trial courts dismiss enhancements if imposing
them would lead to a sentence of over 20 years. (See, e.g., People

31
v. Mendoza (2023) 88 Cal.App.5th 287; People v. Anderson (2023)
88 Cal.App.5th 233, review granted Apr. 19, 2023, S278786;
People v. Lipscomb (2022) 87 Cal.App.5th 9 (Lipscomb); see also
Walker, supra, 86 Cal.App.5th at p. 396, rev.gr.) To be sure, a
superficial read of “shall” in subdivision (c)(2)(C) implicates a
mandatory obligation, not a permissive one. However, we do not
read words or phrases in isolation but must consider how they fit
in the context of the statute as a whole. (Walker, at p. 396.)
Subdivision (c)(1) sets the statute’s overall context, that
dismissing an enhancement must further justice, a notion that
implicates discretion. (See Walker, at p. 395 [dismissing
enhancement in furtherance of justice is discretionary call].)
Subdivision (c)(2) then expressly refers to a trial court’s exercise
of discretion, but directs that its exercise requires consideration
of nine mitigating circumstances. If a mitigating circumstance
exists, then the trial court shall afford it great weight and
dismiss the enhancement unless doing so would endanger public
safety. (§ 1385, subd. (c)(2).) “This language, taken together,
explicitly and unambiguously establishes: the trial court has
discretion to dismiss sentencing enhancements; certain
circumstances weigh greatly in favor of dismissal; and a finding
of danger to public safety can overcome the circumstances in
favor of dismissal.” (Anderson, at p. 239.) In short, the exception
for public safety applies to all mitigating circumstances in
subparagraphs (A) through (I). “The ‘shall be dismissed’
language in section 1385(c)(2)(C), like the language of all of the
listed mitigating circumstances, applies only if the court does not
find that dismissal of the enhancement would endanger public
safety.” (Mendoza, at p. 296.)

32
 Walker, supra, 86 Cal.App.5th 386, review granted, rejected
interpreting the similar provision in section 1385, subdivision
(c)(2)(B), to deprive trial courts of discretion to impose an
enhancement. That subdivision refers to multiple enhancements
alleged in a single case, in which “instance, all enhancements
beyond a single enhancement shall be dismissed.” (§ 1385, subd.
(c)(2)(B).) Walker, at page 396, held that the text and purpose of
section 1385 and Senate Bill No. 81 and the rules of statutory
construction showed that trial courts are not obligated to dismiss
all but one enhancement whenever a jury finds multiple
enhancements true. The court said, “If we were to read the
phrase appended to the multiple enhancements mitigating factor
as automatically mandating dismissal of all but one enhancement
whenever multiple enhancements exist, then the existence of
multiple enhancements would not ‘weigh greatly’ in favor of
dismissal—it would weigh dispositively. But that is not what the
statute says, and we are not allowed to rewrite the statute.”
(Walker, at p. 397; accord People v. Anderson, supra, 88
Cal.App.5th at p. 240, rev.gr. [“dismissal shall occur but only if,
in exercising its discretion and giving great weight to certain
factors, the court finds dismissal is in the interests of justice or
would not endanger public safety”].)
Moreover, construing the statute as Elias suggests would
lead to absurd results. In all cases in which a 20-year or 25-year-
to-life enhancement under section 12022.53, subdivisions (c) and
(d), respectively, has been found true, courts would have to
dismiss the enhancement because imposing it would result in a
sentence of over 20 years in all cases. (People v. Mendoza, supra,
88 Cal.App.5th at p. 296; Lipscomb, supra, 87 Cal.App.5th at
pp. 20–21.) Were this the Legislature’s intent, then it would

33
have, for example, repealed or somehow addressed subdivisions
(c) and (d) of section 12022.53, but it did not do so. Thus, our
construction is the one that does not render section 12022.53
subdivisions (c) and (d), surplusage or meaningless in the
statutory framework.
Also, as Walker, supra, 86 Cal.App.5th at page 398, review
granted, pointed out, if our Legislature wanted to remove
sentencing discretion in certain instances, then there were direct
ways to achieve that purpose. Using the example of multiple
enhancements (§ 1385, subd. (c)(2)(B)), the Legislature could
have had a “standalone section that says: ‘If there’s more than
one enhancement, automatically dismiss all but one’ ” instead of
“opt[ing] to embed that mandate as an addendum to one of nine
mitigating factors to be given great weight in the context of a
trial court’s discretionary decision whether to dismiss. In other
words, if our Legislature was trying to implement a rule of
mandatory and automatic dismissal, it picked a very circuitous
way to do so.” (Walker, at p. 398.)
Legislative history supports our interpretation. A Senate
Floor Analysis dated September 8, 2021, noted that, according to
the bill’s author, there was a lack of clarity and guidance as to
how judges were to exercise their discretion regarding
enhancements. (Sen. Rules Com., Off. Of Sen. Floor Analyses,
Unfinished Business Analysis of Sen Bill No. 81 (2021–2022 Reg.
Sess.) as amended Aug. 30, 2021, p. 5.) Senate Bill No. 81
therefore aimed “to provide clear guidance on how and when
judges may dismiss sentencing enhancements and other
allegations that would lengthen a defendant’s sentence. By
clarifying the parameters a judge must follow, [Senate Bill No.]
81 codifies a recommendation developed with the input of the

34
judges who serve on the Committee on the Revision of the Penal
Code for the purpose of improving fairness in sentencing while
retaining a judge’s authority to apply an enhancement to protect
public safety.” (Ibid.; italics added.)
Otherwise, our review of the statute’s legislative history
shows that at no time was it stated or considered that an
enhancement shall be dismissed in all cases where the sentence
would exceed 20 years, without consideration of public safety.
Lipscomb, supra, 87 Cal.App.5th at page 19, thus observed in its
review of the legislative history that the versions of Senate Bill
No. 81 “confirm the Legislature’s intent that the trial court retain
the ability to Impose an enhancement where failure to do so
would endanger public safety.” The February 8, 2021 version
“provided that ‘the court shall dismiss an enhancement upon
finding any of the following circumstances to be true,’ and, after
listing the mitigating circumstances in paragraph (1), further
provided that ‘[t]he court may decline to dismiss a charged
sentencing enhancement pursuant to paragraph (1) upon a
showing by clear and convincing evidence that dismissal of an
enhancement would endanger public safety.” (Ibid.) A later
iteration of the bill “provided that ‘[t]here shall be a presumption
that it is in the furtherance of justice to dismiss an enhancement
upon a finding that any of the mitigating circumstances in
subparagraphs (A) to (I), inclusive, are true. This presumption
shall be overcome by a showing of clear and convincing evidence
that dismissal of the enhancement would endanger public
safety.’ ” (Lipscomb, supra, 87 Cal.App.5th at p. 19; see also
Assem. Com. on Public Safety, As Proposed to be Amended in
Committee (2021–2022 Reg. Sess.) as amended Apr. 27, 2021, p. 4
[recommending “guidelines and presumptions (but not

35
requirements)” be established that judges should consider
dismissing enhancement in furtherance of justice based on
mitigating circumstances], italics in original.) “Thus every
version of the statute—including, as we conclude, the current
one—expressly empowered the court to impose the enhancement
upon a finding that dismissing it would endanger public safety.”
(Lipscomb, at p. 19.)
And, as our task is to ascertain the Legislature’s intent as a
whole in adopting the legislation, we generally do not consider
statements of an individual legislator or a bill’s author in
construing a statute in the absence of a showing the statement
was part of the debate in the Legislature and considered by it.
(Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062;
People v. Garcia (2002) 28 Cal.4th 1166, 1175–1176, fn. 5.) It is
nonetheless noteworthy that Senate Bill No. 81’s author, Senator
Nancy Skinner, intended judges to retain discretion to impose an
enhancement. After the bill had been approved, she wrote to
clarify her intent regarding two provisions of the bill. She wrote
that the August 30, 2021 amendments removed “the presumption
that a judge must rule to dismiss a sentence enhancement if
certain circumstances are present, and instead replaces that
presumption with a ‘great weight’ standard where these
circumstances are present. The retention of the word ‘shall’ in
Penal Code § 1385(c)(3)(B) and (C) should not be read as a
retention of the previous presumption language—the judge’s
discretion is preserved in Penal Code § 1385(c)(2).” (Sen.
Skinner, author of Sen. Bill No. 81 (2021–2022 Reg. Sess.), letter
to Sect. of the Sen., Sept. 10, 2021, 121 Sen. J. (2021–2022 Reg.
Sess.) p. 2638.) Further, she clarified that in establishing the
great weight standard to impose or to dismiss an enhancement,

36
she intended that the standard be consistent with California
Supreme Court case law. “In short, the bill’s author expressly
indicated the intent that the judge’s discretion to decide whether
to impose the enhancement be preserved notwithstanding the
‘shall be dismissed’ language in section 1385, subdivision
(c)(2)(C).” (Lipscomb, supra, 87 Cal.App.5th at p. 20.)
Finally, we do not agree with Elias that People v. Sek
supports his interpretation of section 1385, subdivision (c)(2)(C).
Sek, supra, 74 Cal.App.5th at pages 664 to 670, first addressed
other recent enactments, finding that they were retroactive, so
the defendant was entitled to remand for resentencing. The court
also briefly noted that Senate Bill No. 81 had been enacted
during the pendency of the appeal, citing subdivision (c)(2)(C),
because Sek’s sentence with a firearm enhancement exceeded 20
years. The court therefore noted that on remand the trial court
had to apply the new law. (Sek, at p. 674.) Sek did not say how
the new law should be applied or otherwise analyze that law.
B. The trial court did not abuse its discretion
Elias alternatively argues that even if section 1385,
subdivision (c)(2)(C), did not mandate dismissing the firearm
enhancement, the trial court abused its discretion in not doing so.
We disagree.
A trial court’s discretionary decision whether to strike an
enhancement may not be reversed on appeal unless the appellant
shows it is irrational or arbitrary. (People v. Carmony (2004) 33
Cal.4th 367, 375.) Absent such a showing, we presume that the
trial court acted to achieve legitimate sentencing objectives, and
we will not set aside a decision merely because reasonable people
might disagree. (Id. at p. 378.) A trial court thus does not abuse

37
its discretion unless its decision is so irrational and arbitrary
that no reasonable person could agree with it. (Ibid.)
Here, the trial court said it had considered the general
objectives of sentencing, including protecting society. The trial
court further noted that there was evidence that Elias had
previously shot at a person (Quintanilla) and that there was no
evidence he committed the current crime because of provocation
or duress. Rather, “It appears this defendant shot and killed Jose
Ahumada for really no reason,” and “the circumstances in this
case demonstrate how dangerous this defendant is.” The trial
court thus described this case as one of the most disturbing it had
seen and found that dismissing the enhancement would result in
“extreme danger to public safety and danger to others.”
On appeal, Elias faults the trial court’s finding that he was
a danger to public safety. He describes the evidence he was the
killer as “exceptionally weak” and insufficient to show he had an
intent to kill. However, the jury clearly did not find the evidence
to be exceptionally weak. Also, the trial court was entitled to rely
on evidence that just weeks before Ahumada’s murder, Elias was
involved in another shooting to support its conclusion he posed a
danger to the public.
Elias also faults the trial court for stating that there was no
reason for the murder and repeats his argument that Wendy was
not credible and there must have been a motive for the shooting
even though the record didn’t reveal one. Again, the trial court
did not misstate the evidence and was not required to speculate
as to any motive Elias might have had for murder.
Elias also makes too much of the trial court’s observation
that there “is no crime more serious than murder” by arguing
that it reflects the trial court’s misunderstanding of the issue. He

38
thus points out that punishment for the second degree murder
was not the issue. The issue was whether to dismiss the firearm
enhancement. However, in context, the trial court first said it
had considered the nature and seriousness of the crime, and it
then observed that in the universe of crimes, murder is the most
serious. Therefore, the suggestion that the trial court
misunderstood the issue or that its statement about murder
reflects an abuse of discretion is meritless.
Next, Elias’s counsel asked the trial court to dismiss the
firearm enhancement based on his age when he committed the
offense. Although a defendant’s juvenile status is a mitigating
circumstance (§ 1385, subd. (c)(2)(G)), Elias was 18 years old
when he committed the murder and therefore not a juvenile.
Although the trial court had the discretion to nonetheless
consider his youth (see § 1385, subd. (c)(4) [listed circumstances
are not exclusive]), the trial court here found that it was an
insufficient mitigating circumstance when weighed against the
danger Elias posed to the public.
Finally, Elias’s counsel referred to Elias’s substance abuse,
addiction, and addictive disorders. However, other than vaguely
referring to those conditions, counsel produced no evidence or
further explanation of them, stating he would do so at a
subsequent hearing to introduce materials relevant to a future
parole hearing. (See generally People v. Franklin (2016) 63
Cal.4th 261.) Thus, other than counsel’s bare statement, the trial
court had nothing before it to establish this mitigating
circumstance.

39
 DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

40