People v. Blackwell CA1/5

Filed 8/18/23 P. v. Blackwell CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent, A162883
v.
COSTELLO BLACKWELL, (Solano County
Defendant and Appellant. Super. Ct. No. VCR233205)

This is an appeal from final judgment after a jury convicted defendant
Costello Blackwell of attempted murder and assault with a firearm, and
found true multiple firearm use enhancements. The trial court then found
true allegations that defendant had two serious or violent felony priors
qualifying as strikes and two serious felony priors before sentencing him to
52 years to life. This sentence included an upper, nine-year term for the
attempted murder, tripled pursuant to the “Three Strikes” law.
On appeal, defendant contends the trial court committed prejudicial
cumulative error and violated his constitutional right to a fair trial by
(1) admitting detailed evidence relating to an uncharged murder he allegedly
committed and (2) excluding evidence relating to the victim’s inconsistent
statement that someone else shot him. Defendant further argues, and the
People concede, we must remand this matter for further proceedings because

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(1) ameliorative changes to Penal Code1 section 1170, subdivision (b) apply
retroactively in this case to limit the trial court’s discretion to impose the
upper term and (2) the trial court erroneously failed to award presentence
conduct credits. We agree with the parties this matter must be remanded for
further proceedings to permit the trial court to resentence defendant under
the amended version of section 1170, subdivision (b) and to recalculate his
presentence credits. In all other regards, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 10, 2019, an information2 was filed charging defendant
with attempted murder of Teiquon C. (§§ 664, 187; count 1) and assault with
a firearm on Teiquon C. (§ 245, subd. (a)(2); count 2). The information
alleged that as to count 1 defendant discharged a firearm causing great
bodily harm (§ 12022.53, subd. (d)) and as to count 2 he personally used a
firearm in its commission (§ 12022.5). Further, the information alleged
defendant had two serious or violent felony priors that qualified as strike
offenses (§§ 667, subd. (d), 1170.12, subd. (b)) and two serious felony priors
(§ 667, subd. (a)). A jury trial began on February 4, 2020.
I. The Prosecution’s Case.
Teiquon C. was released from prison on or about January 8, 2018.
Although his parole officer arranged for him to enter residential drug
treatment programs, Teiquon C. was kicked out and needed a place to stay.
In early 2018, defendant and Teiquon C. were friends, and defendant allowed
him to stay in a trailer on his property in Vallejo. Admittedly, Teiquon C.

1 Unless otherwise stated, all statutory citations herein are to the Penal

Code.
2 An amended information was filed on January 30, 2020, to correct

defendant’s prior conviction dates.

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was using quite a bit of methamphetamine at the time. Defendant helped
Teiquon C. find a job as a watchman at a moving company, owned by
David R., located at 709 Admiral Callaghan Lane in Vallejo. Eventually,
Teiquon C. began doing other jobs for the company and staying in a blue
trailer on the property. Another man, Charles F., an associate of defendant,
lived near the trailer and also watched over the property.
A. November 1, 2018: Teiquon C. Is Shot.
On November 1, 2018, police officers picked up Teiquon C. near his
trailer because he was required to register as a gang member. After his
registration, Officer Martinez asked Teiquon C. if he knew why he was being
questioned. Teiquon C. responded that it could be related to a witness
intimidation case. Officer Martinez then asked Teiquon C. about the
February 2018 murder of Daryl Huckaby, for which a man identified as
Daniel S. had been arrested. Officer Martinez advised Teiquon C. that
Daniel S.’s wife told them Teiquon C. might have information about this
murder. Teiquon C. and Daniel S.’s wife were “friends” and had
communicated through a social media network. Teiquon C. acknowledged
that he was in the vehicle with defendant when defendant shot Huckaby, who
was driving a recreational vehicle. Officer Martinez had difficulty
understanding Teiquon C.’s explanation of what transpired, so he brought
out a map as an aid for the interview. After their meeting, Officer Martinez
dropped Teiquon C. off near 709 Admiral Callaghan Lane.
Charles F. was at 709 Admiral Callaghan Lane when officers picked up
Teiquon C. on November 1, 2018, and later asked Teiquon C. why they
contacted him. Teiquon C. replied the meeting related to his gang
registration.

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 Later that evening, about 9:50 p.m., Teiquon C. entered a gas station at
708 Admiral Callaghan Lane, bleeding profusely from his elbow. Teiquon C.
told a man in the store “Costello Blackwell” shot him, and the man called
911. Teiquon C. was taken to a hospital, where hospital records noted an
accidental shotgun discharge. X-rays showed Teiquon C. suffered a shotgun
wound at close range to his left elbow that required surgery. Teiquon C. also
had stippling on his face and abrasions on the middle knuckles of the second
through the fifth fingers of his right hand, which he could not explain.
Teiquon C. additionally suffered a corneal abrasion to the eye.
Officer Martinez interviewed Teiquon C. at the hospital on the morning
of November 2, 2018. Teiquon C. told him that defendant shot him while
wearing a wig. After the shooting, defendant wanted Teiquon C. to go with
him, telling Teiquon C., “I shouldn’t even be letting you live.” Teiquon C.
responded, “I ain’t gonna say nothing.” Defendant replied, “[N]o, but you that
type of nigga that snitch.”
Officer Martinez asked what happened to Teiquon C.’s right hand, as
his hand was not injured during their meeting the previous day. Officer
Martinez thought Teiquon C.’s hand injury was consistent with having been
in a fight, but Teiquon C. told him that a shotgun blast hit him in the hand
and that he had been shot four or five times.
At trial, Teiquon C. testified that about 9:40 p.m. on November 1, 2018,
he was on the phone in the blue trailer. He heard a noise, and when he stood
up, he was shot. Teiquon C. looked up to see defendant, wearing a wig and a
beanie, standing in the doorway with a shotgun. Teiquon C. said defendant
shot at him two or three times. One shot hit his left arm, and another grazed
the back of his right hand before hitting the wall of the trailer. Teiquon C.
tried to spin out of the way of the third shot and knocked over a lamp.

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Defendant mentioned “all that shit you were talking” and warned that
Teiquon C. did not want to make him an enemy. Defendant then offered to
drive Teiquon C. to the hospital. According to Teiquon C., he followed
defendant out of the trailer toward a parked car. However, Teiquon C. then
noticed that defendant was reloading his shotgun, so he turned and ran
through an opening in the fence to the gas station across the street.
B. The Crime Scene.
The officers who responded to the 911 call at the gas station followed a
trail of blood across the street to the blue trailer. Blood was found on the
stairs leading to the trailer’s door, which was open and splintered. A bloody
jacket was on the ground at the trailer’s entrance. Inside, blood was found on
the floor, on the wall, and near the bed. There was a bat on the bed. On the
floor was a work receipt with a bloody footprint and the name “Costello” on it.
The officers retrieved an expended shotgun shell case outside the
trailer near the door, as well as an expended wad from a shotgun shell that
appeared to have blasted through the wall. There was a knife on the ground
next to the shotgun shell.3 DNA analysis of the shotgun casing indicated at
least one male contributor. However, both defendant and Teiquon C. were
excluded as potential contributors.
C. Defendant’s Cell Phone Communications.
Data extracted from defendant’s cell phone showed that he was in
frequent communication with his wife, Teiquon C. and Charles F. on
November 1, 2018. For example, defendant repeatedly texted Teiquon C.
while Teiquon C. was meeting with police officers. Between 2:22 and
2:25 p.m., defendant texted the following: “Answer your phone.” “You acting
like a true dope fiend.” “Dave told me to buy you some food, dot dot dot. I got

3 The knife was not seized as potential evidence.

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to take this truck back, so you can just take the money and go get whatever
you want dot dot. Dope or food, dot dot. So do you want the cash or not.
Question mark.”
At 3:23 p.m., defendant again tried to contact Teiquon C., texting him:
“How everything is going for you right now and how you are feeling right
now, it’s all based on one decision that you made. You was doing good at
first. Everybody had your back. Everybody’s going to look out for you and
make sure you was all right. But you decided to make the decision to become
a dope fiend again. And not only that, you have become a dope fiend with
paranoid schizophrenic ass ways where you think that everybody is out to get
you. But N, asterisk asterisk asterisk, to be honest with you, nobody gives a
damn. You F, asterisk asterisk asterisk, yourself and you want you to
remember that, dot dot dot. You let—don’t become your best friend and all
the people who give a F, asterisk asterisk asterisk, around you to become
your enemy dot dot dot idiot. Exclamation point.”
At 3:33 p.m., defendant tried to call Charles F., and then at 3:35 p.m.
he texted Charles F.: “Text me if you see this N Teiquon back here, dot dot
dot. I am taking the truck. Wifey following me.” Finally, at 3:43 p.m.,
Teiquon C. texted defendant: “I’m back at the [moving company] yard.” At
4:09 p.m., defendant texted his boss at the moving company: “I am going to
put the N TQ [Teiquon C.] off the yard, dot dot dot. He is an idiot.”
An expert testified as to the location of defendant’s phone based on its
connection to certain cell phone towers at various times. From about
4:30 p.m. to 8:30 p.m., defendant’s phone connections reflected that he
traveled from his Vallejo home to South San Francisco and back, while in
frequent contact with his wife. At 8:35 p.m., defendant’s wife texted him:
“I pray you make it home safely.” He responded a minute later: “I love you.”

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“And I will.” At 8:44 p.m., defendant texted Charles F.: “Do me a favor and
lock up like you always do. And keep an eyes [sic] on that truck out back dot
dot dot. If Mike shows up call me dot dot dot. I will be there in a flash dot
dot dot. . . . I’m in for the night dot dot dot. Tired dot dot dot.” Then,
between 9:32 p.m. and 9:53 p.m., the time of Teiquon C.’s shooting,
defendant’s phone was inactive.
At 9:53 p.m., defendant called his wife, and his phone connected to a
cell tower close to the crime scene and the freeway. At 9:55 p.m., defendant
called his wife again, and his phone connected to a different cell tower, one
closer to his residence, indicating he had traveled in a southerly direction.
At 10:18 p.m., defendant called his wife again. His phone connected to
a cell tower site near his residence. However, at 10:33 p.m., when
defendant’s wife called him, his phone connected to a tower site that covered
the moving company yard. Defendant called his wife at 10:57 p.m. and
Charles F. at 11:30 p.m., and both times his phone connected to a tower site
farther south, near his residence.4
Defendant called his wife three more times between 11:50 and
11:56 p.m. He then texted her about midnight to report that he was going to
the yard to “see what’s up . . . .” About 12:30 a.m., he texted her that
“something happened at the yard” and he was going to “see what’s up . . . .”
At 12:42 a.m., he texted her again, stating: “On my way.”
At 3:18 a.m. on November 2, 2018, defendant texted Teiquon C.,
asking: “Where you at question mark. Charles just told me that the room
was all fucked up and bloody dot dot dot. What you do question mark.” At
3:19 a.m., defendant texted Teiquon C. again: “Call me dot dot dot. Recall

4 Defendant’s stepdaughter testified that defendant left home between

11 p.m. and midnight on November 1, 2018.

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talk dot dot dot.” At 9:34 a.m., defendant texted Teiquon C. yet again: “Call
one of us, bro, please.” Finally, at 4:10 p.m., defendant texted “Slim,” stating:
“The dude on meth, dot dot dot dot dot, he was in M.C. with us, dot dot dot,
he is missing in action with blood everywhere at the little shack at the yard,
where he slept dot dot dot. Police was there last night. But for what though
we don’t know dot dot dot.”
D. Defendant’s Arrest and Jail Phone Calls.
The police arrested and interviewed defendant on the evening of
November 2, 2018. Defendant stated that, on November 1, 2018, he left the
yard of the moving company about 4:30 p.m. to drive a truck to San
Francisco. He returned to the East Bay about 9:00 or 9:30 p.m., going
directly home because he was tired. Defendant was unaware anything
unusual occurred until Charles F. called him about 3:00 a.m. to tell him there
was blood everywhere. Defendant denied knowing Teiquon C. had been shot
until the police told him, insisting that he was looking for Teiquon C. all day.
When arrested, two cell phones were found in defendant’s car: One
belonged to defendant and the other belonged to Teiquon C. Police also
recovered four wigs from defendant’s bedroom, which he claimed belonged to
his wife. When the police later showed them to Teiquon C., he stated that
one of them was the wig defendant wore during the shooting.
On June 20, 2019, defendant called a female friend from jail, stating
that he had discussed a one-year deal with his lawyer to settle his case and
that his mother was encouraging him to take it. A week later, defendant
called this female friend again to report he took the deal. She responded that
an unknown woman called her to say, “ ‘I don’t know why you’re stuck on this
fool. He shot somebody with a shotgun. He’s facing fifteen years—you so
dumb’.” Defendant subsequently told the female friend in the same

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conversation, “I mean the—the what I did—what they said I did was true
but—and I was facing that but I had—I had to take that deal. If I wouldn’t
have took that deal I would have been having to go to trial. But that’s true.
But I wonder who said that though.”
At trial, the parties stipulated that there were no negotiations to settle
this case. From the start, both sides believed it would be resolved by a jury.
E. Evidence Related to the Huckaby Murder.
Teiquon C. testified that defendant introduced him to Daniel S. On
February 10, 2018, Daniel S. went to defendant’s house and spoke with him
for a while. Defendant then told Teiquon C. to go with them. Defendant got
a gun, and the three men left together. Defendant and Teiquon C. traveled in
a Malibu, and Daniel S. followed in a Jeep. Teiquon C. thought they were
going to rob someone but later learned Daniel S. had an issue with a girl.
They drove until they came across a recreational vehicle in which the girl was
supposedly a passenger. Daniel S. tried to cut off the recreational vehicle,
and it struck his Jeep. According to Teiquon C., defendant then aimed and
fired his gun at the recreational vehicle’s driver. Afterward, defendant
appeared happy and boasted that he “still had it . . . .”
At 10:45 p.m. on February 10, 2018, police found a large recreational
vehicle crashed into a fence at 2200 Tuolumne Street in Vallejo. Huckaby
was inside of this vehicle, slouched over in the front seat. The motor was still
running and the headlights were on. There was a possible bullet hole just
below the driver’s side window, with the bullet shell casing located about 215
feet away.
An autopsy revealed that Huckaby died from a single gunshot wound
after a bullet entered below his left shoulder, traveled though his left and
right lungs, and came to rest in his right armpit.

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 An expert’s DNA analysis of the .380 expended shell casing found at
the scene revealed a weak and incomplete profile with at least two
contributors. Defendant could not be excluded as one of them and was at
least 825 times5 more likely to be a contributor than another, unknown
contributor.
II. Defense Case and Teiquon C.’s Impeachment.
Teiquon C. had an extensive history of criminal activity, substance
abuse and mental health issues. Teiquon C. had multiple prior convictions,
including for robbery with a gang enhancement and battery on a prisoner.
While imprisoned, Teiquon C. spent a significant amount of time in the
prison psychiatric unit for, among other things, suicide attempts and
reporting hearing demon voices.
In 2017, Teiquon C. was arrested for, but not charged with, dissuading
a witness in a case involving the robbery of a man in Vacaville. After four
suspects were arrested, the victim did not appear for the preliminary
hearing. Teiquon C. was then arrested after an investigating officer saw him
and two of the suspects in a gas station surveillance video, confronting the
victim. In the video, Teiquon C. was seen speaking to the victim before
taking out his phone and photographing him. In a subsequent interview,
Teiquon C. first claimed to have been asking the victim for spare change in
the surveillance video. However, he later changed his story and said he just
wanted to make sure the victim did not get hurt, as the other men in the
video wanted to kill him. Teiquon C. attended the preliminary hearing,
presumably, the defense investigator testified, to see if the victim would
appear.

5 Defendant’s brief misidentifies this number as 8,325.

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 Lamont G., an acquaintance of defendant, testified that he went to 709
Admiral Callaghan Lane in November 2018 at defendant’s request to clean
the trailer. Lamont G. found furniture in disarray and blood everywhere,
both of which he cleaned up. He also found a phone underneath a desk and
gave it to defendant.
Charles F. worked as a caretaker for David R., the owner of the
business at 709 Admiral Callaghan Lane. Teiquon C. was introduced to him
as defendant’s cousin. Charles F. found Teiquon C. to be strange, aggressive
and often intoxicated. On November 1, 2018, Charles F. saw a police car in
the parking lot but did not see or talk to any officers or Teiquon C. Later, he
noticed the trailer door hanging open and went to check on it. He found a
mess, with blood everywhere and stuff thrown about. A bat with bloody
fingerprints on the handle was on the bed. He used his phone to record the
scene and later shared it with David R. and defendant.
In January 2019, Odell G. was at 709 Admiral Callaghan Lane when he
noticed smoke coming from a warehouse. He asked Teiquon C. about it.
Teiquon C. told him not to worry about it. While waiting for the fire
department to arrive, Odell G. asked Teiquon C. whether he set the fire.
Teiquon C. again said not to worry about it, adding, “F[uck] the building.”
Teiquon C. also told him, “David owes me some money, and he’s going to pay.
And F everything that’s in this building and everything that’s got to do with
David.”
A fire investigator later determined there were two points of origin for
the fire, one of which was a pile of combustible materials consisting of clothes
and cardboard, that appeared to be the result of a human act.
Teiquon C. testified on cross-examination that he was not sure whether
he set fire to the warehouse at 709 Admiral Callaghan Lane in January 2019.

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He was across the street when the fire department arrived. When asked
whether he arranged materials in a pile and set them afire, Teiquon C.
replied no and stated, “They were already in a pile.” Police questioned
Teiquon C. about the arson, but he was not charged.
On February 10, 2019, Teiquon C. smashed a window at a market in
Vallejo, entered the market, and stole some merchandise. When police
arrived, Teiquon C. told them to shoot him. Instead, officers used a stun gun
on him. T.C. said he committed the burglary because he wanted to return to
jail.
A defense investigator interviewed Teiquon C. in February 2019 in
connection with his sentencing in the burglary case. Teiquon C. told the
investigator that he was shot at three times: once in the arm, another time
in the back, and the third shot hit a wall. Teiquon C. explained that he was
shot for threatening defendant’s wife.
A defense DNA expert testified that the DNA found on the shell casing
retrieved from the scene of Huckaby’s murder was very low-level. The
defense expert further testified, based on his analysis, that there was strong
evidence defendant was not a contributor to the DNA sample. In rebuttal,
the prosecution’s expert expressed respect for the defense expert but
disagreed with his conclusion that defendant was not a contributor.
III. Verdicts, Sentencing and Appeal.
On March 5, 2020, defendant waived his right to a jury trial on the
alleged priors. The next day, the jury found him guilty as charged and found
true the firearm enhancements.
On July 9, 2020, a bench trial was held. The trial court then found true
the alleged prior allegations.

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 On May 17, 2021, the trial court sentenced defendant to a total prison
term of 52 years to life. Specifically, defendant received 27 years to life—the
upper, nine-year term tripled due to the prior strikes—for the attempted
murder count and 25 years to life, to run consecutively, for the great bodily
injury enhancement. The court then stayed imposition of sentence on all
remaining charges and enhancements and awarded presentence custody
credits but not conduct credits. This timely appeal followed.
DISCUSSION
Defendant contends the trial court prejudicially erred by (1) admitting
extensive evidence relating to the uncharged Huckaby murder and
(2) excluding evidence that Teiquon C. told a fellow inmate in a prison transit
shuttle that someone else shot him. Defendant further contends, and the
People concede, this case must be remanded for resentencing because (1) an
ameliorative postjudgment change to section 1170 applies retroactively to
limit the trial court’s discretion to impose the upper term on count 1 and
(2) the court erroneously failed to award presentence conduct credits.
I. Admission of Evidence of the Uncharged Murder.
Defense counsel moved in limine to exclude evidence relating to the
Huckaby murder under Evidence Code sections 1101 and 352. The trial court
found the objected-to evidence relevant to whether defendant had a motive to
shoot Teiquon C. but noted that admitting it should not “turn this trial into a
separate trial” on Huckaby’s murder. Defense counsel then refined his
motion to seek exclusion of any evidence relating to the Huckaby murder that
went beyond the fact that Teiquon C. told police that defendant committed
another murder. The court denied this motion and admitted the evidence,
which included testimony from multiple witnesses, including Teiquon C. and
Officer Martinez. Additionally, the court provided limiting instructions that

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forbade the jury from considering this evidence (1) unless the prosecutor
proved by a preponderance of the evidence that defendant murdered Huckaby
and (2) for any improper purpose, including bad character.
Defendant contends the trial court’s ruling was prejudicial error and
violated his constitutional right to due process. Defendant concedes some
evidence relating to the uncharged murder was relevant to prove the
prosecution’s theory that he committed the charged crimes to retaliate
against Teiquon C. for telling the police he shot Huckaby. However,
defendant insists much of the admitted evidence related to prejudicial details
about the murder that went beyond what was necessary to prove motive. For
reasons set forth post, we conclude the trial court did not abuse its discretion
in admitting this evidence under state law or commit constitutional error
under federal law.
A. Governing Law.
“Evidence Code section 1101, subdivision (a) prohibits admission of
evidence of a person’s character, including evidence of character in the form
of specific instances of uncharged misconduct, to prove the conduct of that
person on a specified occasion. The provision ‘expressly prohibits the use of
an uncharged offense if the only theory of relevance is that the accused has a
propensity (or disposition) to commit the crime charged and that this
propensity is circumstantial proof that the accused behaved accordingly on
the occasion of the charged offense.’ [Citation.] ‘Subdivision (b) of section
1101 clarifies . . . this rule does not prohibit admission of evidence of
uncharged misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition.’ [Citation.]” (People v.
Chhoun (2021) 11 Cal.5th 1, 25.)

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 Thus, “ ‘ “[e]vidence that a defendant committed crimes other than
those for which [he or she] is on trial is admissible when it is logically,
naturally, and by reasonable inference relevant to prove some fact at issue,
such as motive . . . . [Citations.] The trial court judge has the discretion
[under Evidence Code section 352] to admit such evidence after weighing the
probative value against the prejudicial effect. [Citation.] When reviewing
the admission of evidence of other offenses, a court must consider: (1) the
materiality of the fact to be proved or disproved, (2) the probative value of the
other crime evidence to prove or disprove the fact, and (3) the existence of any
rule or policy requiring exclusion even if the evidence is relevant. [Citation.]
Because this type of evidence can be so damaging, ‘[i]f the connection between
the uncharged offense and the ultimate fact in dispute is not clear, the
evidence should be excluded.’ [Citation.]” [Citation.] “ ‘We review for abuse
of discretion a trial court’s rulings on . . . admission or exclusion of evidence
under Evidence Code sections 1101 and 352.’ ” ’ [Citation.]” (People v.
Thompson (2016) 1 Cal.5th 1043, 1114, 1st, 2d & 4th bracketed insertions
added.)
Under the abuse of discretion standard, “ ‘ “a trial court’s ruling will
not be disturbed, and reversal . . . is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.” [Citation.]’ ” (People v.
Foster (2010) 50 Cal.4th 1301, 1328–1329.)
B. Application of the Law to the Facts.
Defendant correctly concedes evidence of the Huckaby murder was
properly admitted to show his motive for the charged offenses
notwithstanding the limits set forth in Evidence Code section 1101,
subdivision (a). (People v. Thompson, supra, 1 Cal.5th at pp. 1114–1115.)

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Defendant nonetheless argues the trial court violated Evidence Code section
352 by admitting extensive evidence about the Huckaby murder beyond the
evidence that Huckaby was dead and that defendant was accused of killing
him. This included evidence related to the crime scene, Huckaby’s cause of
death, and the fact that defendant was a likely contributor to the DNA found
at the scene. This evidence, according to defendant, was not relevant to
prove he had a motive to shoot Teiquon C. and was extremely prejudicial in
inviting the jury to convict him in this case because he supposedly murdered
Huckaby. We disagree.
“ ‘ “ ‘In applying [Evidence Code] section 352, “prejudicial” is not
synonymous with “damaging.” ’ ” [Citation.] “ ‘ “[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant’s case.” ’ ” [Citation.]
The “prejudice” which section 352 seeks to avoid is that which “ ‘ “uniquely
tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues.” ’ ” ’ [Citation.]” (People v. Chhoun,
supra, 11 Cal.5th at p. 29.)
Here, the evidence relating to the Huckaby crime scene, Huckaby’s
cause of death and the DNA analysis linking defendant to Huckaby’s death
was almost entirely technical evidence not likely to unnecessarily inflame the
jury by evoking an emotional bias. For example, three investigating officers,
a forensic pathologist and a crime scene technician discussed in detail issues
such as the positioning of Huckaby’s recreational vehicle, the likely trajectory
of the shotgun bullet as it struck the recreational vehicle, and the path the
bullet traveled as it passed through Huckaby’s body.
This testimony was not merely cumulative to evidence that Huckaby
was dead and that defendant was accused of killing him. Rather, it
corroborated Teiquon C.’s statements to Officer Martinez in which Teiquon C.

16
identified defendant, his former friend, as Huckaby’s murderer. Specifically,
Teiquon C. described defendant as shooting Huckaby, the driver of a
recreational vehicle, through the driver-side window while defendant was
driving a separate vehicle in which Teiquon C. was the passenger. The
witnesses’ testimony regarding the positioning of the recreational vehicle and
its driver and the trajectory of the bullet was consistent with Teiquon C.’s
statements and, thus, was necessary for the prosecution to meet its burden of
proving by a preponderance of the evidence that defendant in fact murdered
Huckaby. (See Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1224, fn. 14
[“a jury may consider properly admissible ‘other crimes’ evidence so long as it
finds ‘by a preponderance of the evidence’ that the defendant committed
those other crimes”]; People v. Winkler (2020) 56 Cal.App.5th 1102, 1153
[“Courts have also noted that ‘[i]f the connection between the uncharged
offense and the ultimate fact in dispute is not clear, the evidence should be
excluded.’ [Citations.] This is so ‘ “ ‘[b]ecause this type of evidence can be so
damaging’ ” ’ ”].) This is particularly so given the evidence, in the form of
testimony and text messages, that tended to prove that defendant and
Teiquon C. had been friends and that defendant had gone out of his way in
the past to help Teiquon C. by, among other things, giving him a place to
stay. Without the technical and physical evidence corroborating Teiquon C.’s
identification of defendant as a murderer, the key issue of motive would have
hinged entirely on credibility. (People v. Winkler, supra, at p. 1153 [“The
connection between an uncharged act and the charged crime cannot be clear
unless there is clarity that the defendant committed the asserted act
underlying the uncharged crime”].)
Moreover, the trial court properly instructed the jury to consider the
Huckaby murder evidence only in deciding whether defendant had a motive

17
to shoot Teiquon C. and only if the prosecutor first proved by a preponderance
of the evidence that defendant in fact committed the murder.6 We presume
the jury followed these instructions. (People v. Chhoun, supra, 11 Cal.5th at
p. 30; People v. Barnett (1998) 17 Cal.4th 1044, 1119 [no prejudicial error in
admitting motive evidence where, inter alia, “the court’s instructions
minimized any danger that the jury might rely upon [said evidence] for an
improper purpose”].)
Further, because the trial court did not abuse its discretion under
Evidence Code section 352, defendant’s constitutional claims also fail.
(People v. Fuiava (2012) 53 Cal.4th 622, 670.) It is well established that
routine application of state evidentiary law does not, without more, implicate
a defendant’s constitutional rights. (People v. Thompson, supra, 1 Cal.5th at
p. 1116.) Defendant presents no argument that admission of this evidence
amounted to a due process violation distinct from his state law analysis,
which is insufficient to prove constitutional error. (People v. Dryden (2021)
60 Cal.App.5th 1007, 1025 [“The introduction of improper evidence against a
defendant does not amount to a violation of due process unless the evidence
‘is so extremely unfair that its admission violates “fundamental conceptions
of justice” ’ ”].)
Finally, even assuming for the sake of argument some small portion of
this evidence7 should have been excluded, reversal is not required unless but

6 The trial court followed CALCRIM No. 375, which states in pertinent

part: “You may consider this [uncharged crime] evidence only if the People
have proved by a preponderance of the evidence that the defendant in fact
committed the offense.”
7 Defendant mentions an autopsy photograph of Huckaby. However,
this item does not appear to be in the record on appeal, making it impossible,
in any event, for this court to assess its prejudice.

18
for its admission it is reasonably probable that defendant would have
obtained a more favorable result. (People v. Watson (1956) 46 Cal.2d 818,
836.) Under this standard, we consider whether it is reasonably probable
that one or more jurors would have concluded the prosecution failed to meet
its burden of proving beyond a reasonable doubt that defendant shot
Teiquon C. if this case were tried without admission of the evidence about the
Huckaby crime scene, his cause of death or the DNA analysis. (People v.
Dryden, supra, 60 Cal.App.5th at p. 1025.) We conclude not.
First, Teiquon C. identified defendant as the shooter to a stranger
offering him aid just moments after the incident, when he was bleeding
profusely and in obvious pain. Teiquon C. again identified defendant as the
shooter a short time later, at the hospital just before surgery, when Officer
Martinez interviewed him. And, he consistently stood by this claim in other
police interviews as well as at trial.
Second, even if most of the Huckaby murder evidence were excluded,
there would nonetheless remain in the record a wealth of evidence that
defendant had a motive to shoot Teiquon C. Briefly, in a meeting with police
hours before his shooting, Teiquon C. told Officer Martinez that defendant
killed Huckaby. Charles F., a close ally of defendant, saw officers pick
Teiquon C. up at the moving company yard prior to this meeting and later
asked Teiquon C. why he met with the police. Teiquon C. responded that it
related to his gang registration. While there is no evidence Charles F. told
defendant about Teiquon C.’s meeting with police, the two men were in
regular contact on November 1 and 2, 2018.
There was also a wealth of cell phone evidence that supported
Teiquon C.’s claim that defendant shot him and defeated defendant’s alibi.
An expert testified based on cellular data from defendant’s phone that

19
defendant was in the vicinity of 709 Admiral Callaghan Lane when
Teiquon C. was shot on November 1, 2018, and then moved away from the
area and toward home afterward. Consistent with the cell phone evidence,
defendant’s stepdaughter testified that defendant was not at home on
November 1, 2018, between approximately 11 p.m. and midnight. Yet,
defendant told police on November 2, 2018, that he returned home from
South San Francisco about 9:30 p.m. the previous day and never returned to
the yard. Moreover, while defendant made numerous calls and texts
throughout the evening of November 1, 2018, his phone was unusually quiet
for about 20 minutes around the time of the shooting.
When the police searched defendant’s car and home, they found
Teiquon C.’s cell phone as well as several wigs that corroborated Teiquon C.’s
claim that defendant was wearing a wig when he shot him.
And lastly, during a phone call from jail with a female friend,
defendant responded, “[W]hat they said I did was true,” when this friend
lamented being told by an unnamed person, “ ‘I don’t know why you’re stuck
on this fool. He shot somebody with a shotgun.’ ”
During closing arguments, the prosecutor focused extensively on this
evidence of defendant’s guilt before turning, finally, to the Huckaby murder.
And when he did so, the prosecutor reinforced the court’s instructions,
explaining the evidence could be considered only for the limited purpose of
“deciding whether, one, the defendant was the person who committed the
offenses alleged in this case or two, the defendant had a motive to commit the
offenses alleged in this case. That is why that incident is pertinent and
relevant to this case. [Teiquon C.’s] knowledge of Mr. Blackwell’s
involvement in that incident.”

20
 The first part of the prosecutor’s statement misstated the law:
Evidence Code section 1100, subdivision (a) bars consideration of uncharged
crime evidence to conclude that if the defendant committed the prior crime,
he likely committed the charged crime. However, the jury was correctly
instructed on this law by the trial court prior to deliberations. The jury was
also instructed: “If you believe that the attorneys’ comments on the law
conflict with my instructions, you must follow my instructions.” These
instructions alleviated any prejudice from the prosecutor’s misstatement.
Defendant counters that this was a close case, particularly because
Teiquon C., the primary witness to the shooting, had serious credibility
issues and that admission of the Huckaby murder evidence unfairly tipped
the scale against him. Yet, defendant had ample opportunity, which he took
full advantage of, to impugn Teiquon C.’s credibility, through rigorous cross-
examination and examination of other witnesses on matters related to his
mental health, substance abuse and criminal history. Under these
circumstances, considering the record as a whole, including both the evidence
and the jury instructions, we conclude there is not a reasonable probability
that but for admission of this evidence he would have obtained a more
favorable result. (People v. Chhoun, supra, 11 Cal.5th at p. 45.)
II. Exclusion of Teiquon C.’s Prior Inconsistent Statement.
At trial, after Teiquon C. testified that defendant shot him, defense
counsel sought to introduce evidence through a witness that Teiquon C. told a
fellow inmate in a prison transport shuttle in 2019 that he was shot because
he had been “messing with the Mexican Mafia” and robbed “some Pisa.”
Teiquon C. then allegedly stated that the crazy thing was that police were
trying to pin the shooting on defendant.

21
 The court questioned Teiquon C. outside the jury’s presence as to
whether he previously said he was shot by a gang member or that his
shooting was gang-related. Teiquon C. replied, “No.” Defense counsel
nonetheless made an offer of proof, after which the court excluded the
evidence under Evidence Code section 352, reasoning that it “sounds like
boasting or speculation at best” and that its admission would “create[] a
substantial danger of undue prejudice, confusing the issues and misleading
the jury for what little probative value [the evidence] has.” The court also
reasoned that “without any specific individual as having the motive and
opportunity to commit this crime, I don’t think the threshold for a third-party
culpability has been met as well.”
Defendant contends this ruling was an abuse of discretion and a
violation of his constitutional right to present a defense.
A. Applicable Law.
As stated, a trial court’s discretionary ruling under Evidence Code
section 352 will not be disturbed on appeal absent an abuse of discretion.
(People v. Foster, supra, 50 Cal.4th at pp. 1328–1329.) In this instance,
defendant sought admission of this evidence as a prior inconsistent statement
to impeach Teiquon C. “ ‘ “[T]he latitude section 352 allows for exclusion of
impeachment evidence in individual cases is broad. The statute empowers
courts to prevent criminal trials from degenerating into nitpicking wars of
attrition over collateral credibility issues.” [Citation.]’ [Citation.] Regarding
constitutional limitations, we have held that ‘ “not every restriction on a
defendant’s desired method of cross-examination is a constitutional violation.
Within the confines of the confrontation clause, the trial court retains wide
latitude in restricting cross-examination that is repetitive, prejudicial,

22
confusing of the issues, or of marginal relevance.” [Citation.]’ [Citation.]”
(People v. Lewis (2001) 26 Cal.4th 334, 374–375.)
B. Application of the Law to the Facts.
We begin with what should be clear: A prior statement by the victim
of, and sole eyewitness to, the charged offenses that someone other than the
defendant committed those offenses is highly probative of key issues relating
to the defendant’s guilt and the victim’s credibility. (Evid. Code, § 780, subd.
(h) [“the court or jury may consider in determining the credibility of a witness
any matter that has any tendency in reason to prove or disprove the
truthfulness of his testimony at the hearing, including but not limited to . . . :
[¶] . . . [¶] (h) A statement made by him that is inconsistent with any part of
his testimony at the hearing”].) Nonetheless, the trial court excluded
Teiquon C.’s alleged statement to a fellow inmate that a gang member, rather
than defendant, shot him, after finding it was “boasting or speculation at
best.” This was wrong. A section 352 analysis does not consider witness
credibility. (People v. Cudjo (1993) 6 Cal.4th 585, 610 [“the trial court
apparently concluded that the evidence was more prejudicial than probative
because Culver was not a credible witness. However, such doubts, however
legitimate, do not constitute ‘prejudice’ under Evidence Code section 352”];
People v. Chandler (1997) 56 Cal.App.4th 703, 711 [“Credibility of the
proffered witness is not included under [Evidence Code § 352’s admissibility]
guidelines”].) As the California Supreme Court explains: “Except in the[]
rare instances of demonstrable falsity, doubts about the credibility of the in-
court witness should be left for the jury’s resolution.” (People v. Cudjo, supra,
at p. 608.) Teiquon C.’s alleged statement was not demonstrably false, and
the trial court could have set reasonable limits on the proffered testimony

23
and any rebuttal so that minimal time at trial would have been consumed by
it.
Moreover, because the proffered evidence was admissible as a prior
inconsistent statement that tended to impeach Teiquon C.’s trial testimony
that defendant shot him (see Evid. Code, § 780, subd. (h)), the court was
wrong to alternatively exclude it as inadmissible third party culpability
evidence. Indeed, even assuming for the sake of argument that third party
culpability rules applied, the proffered evidence did not run afoul of them.
“Evidence that raises a reasonable doubt as to a defendant’s guilt, including
evidence tending to show that another person committed the crime, is
relevant. But evidence that another person had a motive or opportunity to
commit the crime, without more, is irrelevant because it does not raise a
reasonable doubt about a defendant’s guilt; to be relevant, the evidence must
link this third person to the actual commission of the crime. [Citation.]
Evidence that is relevant still may be excluded if it creates a substantial
danger of prejudicing, confusing, or misleading the jury, or would consume an
undue amount of time. (See Evid. Code, § 352.)” (People v. Brady (2010) 50
Cal.4th 547, 558.) Here, defendant’s alleged statement—that the “Mexican
Mafia” came to where he lived and tried to kill him for “robbing a Pisa”—goes
beyond mere evidence of another person’s motive or opportunity to commit
the crime. Whether or not credible (a question for the jury), Teiquon C.’s
alleged statement directly linked a third person (a member of the Mexican
mafia) to the actual commission of the November 1, 2018, shooting. Thus, we
conclude the trial court twice erred in excluding this evidence.
Nonetheless, we conclude that had Teiquon C.’s prior inconsistent
statement been admitted, there is no reasonable probability defendant would
have obtained a better result. (People v. Watson, supra, 46 Cal.2d at p. 836.)

24
For all the reasons discussed ante, there was a wealth of evidence of
defendant’s guilt, including evidence of his motive for committing his crimes,
including cell phone data; Teiquon C.’s excited utterance to a stranger just
after being shot that defendant was the shooter; and the timing of
Teiquon C.’s meeting with the police, hours before the shooting, during which
he identified defendant as Huckaby’s murderer. (Ante, pp. 3–9.)
At the same time, there was a wealth of evidence before the jury that
undermined Teiquon C.’s credibility, including evidence relating to his
mental health and substance abuse struggles and his extensive criminal
history. There was also evidence Teiquon C. told the defense investigator
that defendant shot him for threatening defendant’s wife, rather than, as he
maintained at trial, in retaliation for telling police he shot Huckaby. And,
finally, the court allowed defense counsel to question Teiquon C. regarding an
alleged conversation he had with an inmate in a holding cell in Solano
County during which Teiquon C. allegedly said he was so high on
methamphetamine on the night in question that he did not know who shot
him.8 In light of what was before the jury, the court’s exclusion of
Teiquon C.’s alleged prior inconsistent statement that someone other than
defendant shot him “did not keep the jury from learning facts from which it
could assess [Teiquon C.’s] character and credibility.” (People v. Harris
(2005) 37 Cal.4th 310, 339.)
Accordingly, we conclude based on the record as a whole there is slight
chance Teiquon C.’s isolated statement that he was shot by a gang member,
made to an inmate in a prison transport shuttle, would have swayed the jury
in defendant’s favor.

8 Teiquon C. denied making this statement.

25
 C. No Cumulative Error.
Lastly, given our conclusion that the trial court’s evidentiary rulings
did not constitute prejudicial error, we reject defendant’s reliance on the
cumulative error doctrine as grounds for reversal. No trial is perfect, and
here, there were few errors, and none were prejudicial. Accordingly, this
claim fails. (See People v. Anderson (2001) 25 Cal.4th 543, 606 [rejecting
cumulative error claim where the high court “identified no [constitutional]
errors, and, as explained at length above, the record provides no basis for
concluding that any trial ruling or event defendant has challenged caused
him unfair prejudice”].)
III. Ameliorative Changes to Section 1170.
Defendant contends, and the People concede, we must remand for
further proceedings to allow the trial court to apply the version of section
1170, subdivision (b) that went into effect postjudgment, on January 1, 2022,
and has an ameliorative impact on his sentence. We agree.
Senate Bill No. 567 (2020–2021 Reg. Sess.) amended our determinate
sentencing law in fundamental ways. (Stats. 2021, ch. 731, § 1.3.) Relevant
here, the bill made the middle term of imprisonment the presumptive term
unless “there are circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term, and the
facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.” (§ 1170, subd. (b)(2), added by Stats.
2021, ch. 731, § 1.3.)
On the contrary, at the time of defendant’s May 17, 2021, sentencing
hearing, the trial court had broad discretion to select a lower, middle, or
upper term sentence. (Former § 1170, subd. (b); former Cal. Rules of Court,

26
rules 4.420, 4.421, 4.423.) Under this broad discretion, the trial court
sentenced defendant to 27 years to life on the attempted murder count
(§ 664). While the trial court did not explain its decision, we presume, as did
the parties, that the 27-year term represents a tripling of the upper, nine-
year term for attempted murder under the Three Strikes law (§§ 667, subd.
(e)(2)(A)(i), 1170.12, subd. (c)(2)(A)(i)).9
Under well-established law, the amended version of section 1170,
subdivision (b) applies retroactively in this case. In re Estrada (1965) 63
Cal.2d 740, 745, held that an “amendatory act imposing the lighter
punishment can be applied constitutionally to acts committed before its
passage provided the judgment convicting the defendant of the act is not
final.” (Accord, People v. Tran (2022) 13 Cal.5th 1169, 1207; People v.
Esquivel (2021) 11 Cal.5th 671, 675.) Here, defendant’s judgment is not yet
final, as his appeal remains pending and the time for petitioning for writ of
certiorari in the United States Supreme Court has not passed. (People v.
Lopez (2019) 42 Cal.App.5th 337, 341–342 [“For the purpose of determining
the retroactive application of an amendment to a criminal statute, the
finality of a judgment is extended until the time has passed for petitioning for
a writ of certiorari in the United States Supreme Court”], citing People v.
Vieira (2005) 35 Cal.4th 264, 305–306.)
Accordingly, we remand for further proceedings to permit the trial
court to apply the amendatory version of section 1170, subdivision (b)(2) in
determining defendant’s sentence on count 1.

9 Attempted murder “shall be punished by imprisonment in the state

prison for five, seven, or nine years.” (§ 664, subd. (a).)

27
IV. Presentence Conduct Credits.
Lastly, defendant contends the trial court erred in declining to award
him conduct credit for his presentence time served in custody. Again, the
People correctly concede this is so.
“In general, a defendant receives what are commonly known as conduct
credits toward his term of imprisonment for good behavior and willingness to
work during time served prior to commencement of sentence. (§§ 2900.5,
4019; [citation].)” (People v. Thomas (1999) 21 Cal.4th 1122, 1125.) Section
2900.5, subdivision (a) provides in relevant part that “[i]n all felony and
misdemeanor convictions, . . . when the defendant has been in custody . . . ,
all days of custody . . . shall be credited upon his or her term of
imprisonment . . . .” (See Cal. Code Regs., tit. 15, § 3371.1, subd. (c)(1)(A).)
Section 2933.1 creates an exception to this general rule for a defendant, such
as ours, convicted of a violent felony within the meaning of the Three Strikes
law. Under this provision, the award of presentence conduct credits to a
Three Strikes law defendant whose current conviction is for a violent felony
listed in section 667.5, subdivision (c) “shall not exceed 15 percent of the
actual period of confinement.” (§ 2933.1, subds. (a), (c).)
At sentencing, the trial court awarded defendant 926 days of
presentence custody credit but no days of presentence conduct credit. The
trial court reasoned that section 667, subdivision (c)(5) prohibited
presentence conduct credits for Three Strikes law offenders. The trial court
was mistaken. “As the Supreme Court explained in People v. Buckhalter,
‘[w]e recently held that restrictions on the rights of Three Strikes prisoners to
earn term-shortening credits do not apply to confinement in a local facility
prior to sentencing. We emphasized that when limiting the credit rights of
offenders sentenced thereunder, the Three Strikes law (§§ 667, subd. (c)(5),

28
1170.12, subd. (a)(5)) expressly refers only to “postsentence . . . credits,” i.e.,
those “ ‘awarded pursuant to [a]rticle 2.5’ ” [citation], and “does not address
presentence . . . credits” for Three Strikes defendants.’ (People v. Buckhalter
(2001) 26 Cal.4th 20, 32 [citations].)” (People v. Jones (2023) 88 Cal.App.5th
818, 822–823.) Thus, the only restriction on defendant’s accumulation of
credits is the 15-percent limitation under section 2933.1 because he was
convicted of a violent felony within the meaning of section 667.5,
subdivision (c).
Accordingly, on remand, defendant is entitled to 139 days of
presentence conduct credit, representing 15 percent of the 928 days that he
actually served in custody.10
DISPOSITION
The judgment is reversed, and the matter is remanded for further
proceedings so that the trial court can apply the amended version of section
1170, subdivision (b), and recalculate defendant’s presentence credits. In all
other regards, the judgment is affirmed.

10 The People point out that defendant was in presentence custody 928

days rather than 926 days, the number used by the trial court, since he was
arrested on November 2, 2018, and sentenced on May 17, 2021.

29
 _________________________
Jackson, P. J.

WE CONCUR:

_________________________
Simons, J.

_________________________
Chou, J.

A162883/People v. Costello Blackwell

30