Filed 11/14/17
        CERTIFIED FOR PARTIAL PUBLICATION*



       IN THE COURT OF APPEAL OF THE STATE OF
                     CALIFORNIA

                 SECOND APPELLATE DISTRICT

                       DIVISION ONE


THE PEOPLE,                              B270324

       Plaintiff and Respondent,         (Los Angeles County
                                         Super. Ct. No. TA129035)
       v.

BOBBY WATTS,

       Defendant and Appellant.


      APPEAL from an order of the Superior Court of Los
Angeles County, Allen J. Webster, Jr., Judge. Affirmed in
part and reversed in part with directions.
      Randy S. Kravis, under appointment by the Court of
Appeal, for Defendant and Appellant.

       Pursuant to California Rules of Court, rules 8.1105(b)
       *

and 8.1110, this opinion is certified for publication with the
exception of parts III.A. and B of the Discussion.
       Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Esther P. Kim,
Deputy Attorney General, for Plaintiff and Respondent.
                     ——————————
       A jury convicted Bobby Watts (Watts) of murder and
found that Watts committed the offense for the benefit of, at
the direction of, and in association with a criminal street
gang. Watts then filed a motion for new trial, alleging the
evidence was insufficient to sustain the jury’s true finding on
the gang enhancement allegation and that his trial attorney
had provided ineffective assistance of counsel. The trial
court denied the motion. On appeal, Watts contends the
trial court abused its discretion in denying the motion.
Watts also contends the trial court erred by precluding him
from introducing evidence of the victim’s blood alcohol level
at the time of his death and that instructing the jury using
CALCRIM No. 315 violated his due process rights. We hold
that the trial court employed the incorrect test when
reviewing Watts’s new trial motion with respect to the gang
enhancement allegation. We thus reverse the trial court
order denying the motion with respect to the gang allegation
only. The order is affirmed in all other respects.
                       BACKGROUND
I.     Overview of Charges
       The Los Angeles County District Attorney’s Office
charged Watts with one count of murder (Pen. Code, § 187,




                              2
subd. (a); count 11), and one count of possession of a firearm
by a felon (§ 29800, subd. (a)(1); count 2). The district
attorney also alleged that Watts personally and intentionally
discharged a firearm causing great bodily injury and death
(§ 12022.53, subds. (b), (c) & (d)), and committed the offenses
for the benefit of, at the direction of, and in association with
a criminal street gang with the specific intent to promote,
further, and assist in criminal conduct by gang members
(§ 186.22, subd. (b)(1)(C).) The district attorney further
alleged that Watts had suffered a prior serious felony (§ 667,
subd. (a)(1)), as well as a prior “strike” conviction (§§ 667,
subds. (b)-(i) & 1170.12). Watts pleaded not guilty and
denied the special allegations. A jury found Watts guilty as
charged.2 After sentencing, Watts filed a notice of appeal.


     1 All further statutory references are to the Penal Code
unless otherwise indicated.
     2  Watts waived his right to a jury trial with respect to
the prior serious felony and prior strike convictions and the
trial court found the allegations to be true. The trial court
then sentenced Watts to 80 years to life in state prison as
follows: 25 years to life, doubled to 50 years to life under the
“Three Strikes” law, plus 25 years for the personal use of a
firearm enhancement, plus five years for the prior serious
felony enhancement. The court imposed a four-year
sentence on count 2 but ordered it run concurrent to the
sentence in count 1. The court also stayed the gang
enhancement and remaining firearm enhancements
pursuant to section 654. The court awarded Watts 953 days
of presentence custody credits.




                               3
II.   Prosecution Evidence
      A.    Floyd Videau’s Murder
      On June 23, 2013, at approximately 4:00 a.m., Michelle
Howard, Floyd Videau, and another individual were at a
playground in the Imperial Courts Housing Projects when a
man nicknamed “Little Chris” and his girlfriend drove up to
the group. Little Chris told them to watch out for a car that
had been circling the area. Howard remembered seeing a
car pass by a few times but did not think much of it. Little
Chris continued to tell Howard and Videau that he had
spotted someone walking around the housing project. At one
point, he said to that person, “ ‘Oh, you think you’re trying to
be slick. I see you.’ ”
      As Little Chris continued to talk with the group,
Howard saw the same car barreling down the street. The
car was a dark, two-door vehicle with only one taillight, and
Howard saw that there were two individuals in the car. As
the car passed by, Little Chris said, “Oh, there he go right
there. That’s the car right there.” Little Chris ran after the
car, but returned to say that the car had disappeared.
Someone then said, “Who is that?” and Howard turned to see
Watts, about three feet away, coming toward Videau.
Watts’s right arm was beneath his left armpit. Little Chris
started backing up and told everyone to watch out for Watts.
Videau and Watts said something to each other. Howard
then saw Watts pull out a gun, and saw a flash go off.
Howard backed away and ran. As she ran away, she heard




                               4
about five to seven gunshots. Howard later returned to the
playground to see Videau’s lifeless body on the ground.3
      B.    Subsequent Investigation
      Los Angeles Police Department (LAPD) Detective Scott
Teubert responded to the shooting. When he arrived at the
Imperial Courts Housing Projects at 7:00 a.m. that same
day, Detective Teubert saw Videau’s body on the ground
with multiple gunshot wounds to his head, back, and right
arm. The detective also saw three expended shell casings
around Videau.
      A few days after the shooting, LAPD Officer James
Shannon staked out Watts’s vehicle—a black 2003 Dodge
Stratus coupe—as it sat parked next to El Camino College.
A few hours after Officer Shannon began watching the
vehicle, he saw the driver throw a piece of paper out the
driver’s side window.4 Watts later got out of the vehicle and
was arrested. Forensic print specialists analyzed the seven
fingerprints lifted from Watts’s vehicle and one fingerprint
from a cup found inside the vehicle. Six of the eight
fingerprints matched Watts’s prints.

     3 Videau sustained a total of seven gunshot wounds.
Two were fatal. The medical examiner who conducted
Videau’s autopsy opined that the two fatal gunshot wounds
were to Videau’s brain.
     4 Until this time, no one had walked to, entered, or
exited the vehicle and police did not know anyone was in the
vehicle during the two and half hour surveillance up to this
point.




                              5
      LAPD Officer Darryl Danaher, who worked for the
crime intelligence task force, monitored closed-circuit
television systems for multiple housing developments. On
the night of the shooting, cameras captured Watts’s vehicle
multiple times around the area of the Imperial Courts
Housing Projects. Dwight Nichelson, the custodian of
records for Sprint Corporation, testified that, based on cell
tower information, Watts was at the location of the shooting
at the time it occurred.
      LAPD Detectives Nathan Kouri and Manuel Castaneda
were assigned to investigate the circumstances of the
shooting. Detective Kouri was aware that video surveillance
cameras had been set up in the Imperial Courts Housing
Projects and Nickerson Gardens to monitor activities within
those housing projects. Detective Kouri was also aware that
license plate recognition cameras were installed throughout
the city.
      Review of the various surveillance camera video
showed Watts’s vehicle leaving Nickerson Gardens at
3:27 a.m. and driving towards the Imperial Courts Housing
Projects. After circling the Imperial Courts Housing
Projects, Watts’s car pulled into a laundromat next to the
housing project at 4:00 a.m. Watts exited the passenger side
of the vehicle, opened and rummaged through the trunk, and
entered the driver’s side of the vehicle to change his clothing.
Watts then exited the vehicle and walked in a northbound
direction. The vehicle left the parking lot sometime later
and started circling the Imperial Courts Housing Projects.




                               6
At 4:15 a.m., the driver of the vehicle pulled up to Watts,
who was on foot, and after talking briefly, drove away.
Watts walked towards the housing project and was later
seen getting into the vehicle at 4:20 a.m. At 4:22 a.m., the
vehicle approached the intersection of the Imperial Courts
Housing Projects. At 4:27 a.m., surveillance video from a
nearby parking lot showed individuals running away from
the playground.
      Detective Kouri interviewed Howard after the
shooting. Howard identified Watts as the shooter from a six-
pack photographic lineup. Howard said Watts was five feet
six or seven inches, with a slim build, and was wearing a
blue and white striped shirt, dark pants and a hat when he
shot Videau.5




     5  Howard initially declined to describe the shooter
beyond the clothes he was wearing when he shot Videau.
When shown a six-pack with Watts’s photo a few days later,
Howard focused on two photos, number 3 (Watts) and
number 4. She told detectives that Watts’s complexion was
similar to that of the gunman but that number 4 looked to be
the same age as the gunman. When reminded that the
lighting might be different, Howard chose Watts’s photo.
Howard said Watts’s complexion, eyes, and narrow facial
structure were consistent with that of the shooter. Howard
also identified Watts at the subsequent preliminary hearing
and trial. She based her identification on the features of
Watts’s face, specifically, his “odd bone structure.”




                             7
      C.    Gang Expert Testimony
      LAPD Officer Francis Coughlin testified as the
prosecution’s gang expert. Officer Coughlin was the senior
lead officer for the Nickerson Gardens Housing Project and
he had been investigating gang crimes within that
neighborhood for 17 years. He had extensive gang training
and had testified over a hundred times as a gang expert.
      Officer Coughlin explained that the gang culture
involves “putting in work” for the gang. This means gang
members must commit violent crimes for the benefit of the
gang. Committing a violent crime shows allegiance to the
gang and establishes trust with fellow gang members. It
also enhances the reputation of the gang by instilling fear in
the community. Fear is important in the gang culture
because it deters members of the community from reporting
gang activity and establishes gang territory.
      There are major gangs in South Central Watts. Each
gang is located within a housing project. The Bounty Hunter
Bloods are located in the Nickerson Gardens Housing
Project, the Grape Street Crips are located in the Jordan
Downs Housing Project, and the Project Watts Crips are
located in the Imperial Courts Housing Projects. Officer
Coughlin explained that the gangs in each housing project
are rivals and members of each gang know not to cross into
the rival housing projects. Gang members who cross into
rival gang territory late at night or early in the morning are
likely present to kill rival gang members.




                              8
      Officer Coughlin is familiar with the Bounty Hunters
gang. The gang has over 2,000 documented members and
identified themselves as “BHW” in the color red. Gang
members have tattoos of “B” and “H” for Bounty Hunters.
The Bounty Hunters are territorial in nature. They claim
the Nickerson Gardens Housing Project as its territory,
along with its surrounding blocks. The Bounty Hunters are
a profitable gang, whose income mainly came from selling
drugs. The gang identifies the Grape Street Crips and the
Project Watts Crips as their rivals. The Bounty Hunters
main activities include graffiti, robbery, drug sales, and
shootings.
      According to Officer Coughlin, Watts is a member of
the Bounty Hunters gang and is known as “Porky” or “GK
Porky.” Watts has several tattoos that are affiliated with
the Bounty Hunters gang. His email address
(gkporkybhw115@XXXXX.com) also identified him as a
Bounty Hunters gang member. Officer Coughlin explained
that GK stood for “Grape Killer,” “Porky” was Watts’s
nickname, “BHW” stood for Bounty Hunter Watts, and “115”
was for 115th Street, which was a subset of Bounty Hunter
Watts in the Nickerson Gardens Housing Projects. Multiple
text messages and Facebook photos with Watts throwing up
Bounty Hunters gang signs led Officer Coughlin to opine
that Watts was a member of the Bounty Hunters gang.
Officer Coughlin knew Videau to be a member of the rival
Project Crips. Videau had tattoos showing his allegiance to




                             9
the gang. Videau was also associated with Little Chris, who
was a member of the Project Crips gang.
      With respect to Videau’s murder, Officer Coughlin
opined that the killing was committed for the benefit of, at
the direction of, or in association with the Bounty Hunters
gang. The shooting benefited the gang because it reaffirmed
the reputation of the gang as a violent gang. The shooting
also reaffirmed the status of the gang to rival gang members,
as well as the public, because it served as a warning to
others not to encroach on their territory or to report crimes.
      Watts presented no evidence in his defense.
                         DISCUSSION
I.    Watts’s Motion for a New Trial
      A.    Gang Enhancement Allegation
      Watts contends that trial court abused its discretion
when denying his motion for a new trial on the ground that
the evidence was insufficient to sustain the jury’s true
finding on the gang enhancement allegation. Watts filed the
new trial motion pro se. In the motion, Watts asked the trial
court to “reweigh the evidence regarding the sufficiency of
the evidence to support the gang enhancement.”6 Watts
claimed the following findings were not supported by

     6  Watts’s motion also contended that the trial court
erred in admitting Little Chris’ statements. Watts does not
address that issue on appeal. Watts also argued that he had
received ineffective assistance of counsel, identifying several
alleged errors committed by his attorney. Watts does re-
raise this issue on appeal and it is addressed below.




                              10
substantial evidence—that it was Watts who sent the text
messages found on his cell phone; that Watts was a gang
member; that Videau’s murder was gang related; that the
people in Watts’s car were Bounty Hunters gang members;
that the Bounty Hunters and Project Watts Crips are rivals;
and that Watts’s Facebook name was gang related.
      At the hearing on the motion, Watts again argued that
the gang enhancement was not supported by sufficient
evidence. The trial court said that although it understood
Watts’s argument, it could not review the claim: “But that,
again, is an evidentiary ruling. It goes to the merits of the
case. That’s something that would go up on appeal.
Whether this is a gang case or not is not a basis for a motion
for new trial.” “Because I know where you are going with
this. Is that these two particular groups were not at war,
okay. I understand that. But that is not the basis for a
motion for new trial, whether the Bloods and Crips were at
war or not. That has nothing to do with a motion for new
trial. That’s not one of the elements for [a] motion for new
trial. That goes to the sufficiency of the merits of the case,
which is something that will be taken up on appeal.”
      Throughout the hearing, the trial court continually
maintained that Watts’s claim was not appropriate for a new
trial motion. “I don’t understand why we are involving
ourselves in this argument, because it doesn’t go to one [of]
the factors for a motion for new trial. [¶] . . . [¶] Where does




                              11
it say that in [section] 1181, that that’s one of the factors?”7
Watts pointed the court’s attention specifically to
subdivision 6 of section 1181. “Insufficiency of the evidence
pursuant to [section 1181, subdivision (6)],” Watts answered.
“The verdict or finding contrary to . . . the law or evidence,
Penal Code [section 1181, subdivision (6)] requires that the
trial judge independently reweigh the evidence. People
versus Davis, 1985.”8 “It’s not for me to reweigh the

     7  Section 1181 prescribes the grounds upon which a
trial court may grant a new trial after a verdict or finding
has been made. Subdivision 6 of section 1181 provides that
a trial court may grant a new trial when “the verdict or
finding is contrary to law or evidence but if the evidence
shows the defendant to be not guilty of the degree of the
crime of which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may
modify the verdict, finding or judgment accordingly without
granting or ordering a new trial, and this power shall extend
to any court to which the cause may be appealed.”
     8  Watts was referring to People v. Davis (1995) 10
Cal.4th 463, which articulated the standard of review a trial
court must follow when faced with a new trial motion. “In
reviewing a motion for a new trial, the trial court must
weigh the evidence independently. [Citation.] It is,
however, guided by a presumption in favor of the correctness
of the verdict and proceedings supporting it. [Citation.] The
trial court ‘should [not] disregard the verdict . . . but
instead . . . should consider the proper weight to be accorded
to the evidence and then decide whether or not, in its
opinion, there is sufficient credible evidence to support the
verdict.’ ” (Id. at pp. 523–524.) Although Watts did not



                              12
evidence,” the trial court again insisted. “Because there was
testimony that you were [a] Blood. You live in Nickerson
Gardens, hang out in Nickerson Gardens. And this other
person [who] was killed is a Crip, had on blue and was
killed. So as far as the court is concerned, there was
evidence to let the jury decide yes it was a gang case or no it
wasn’t. . . . Now whether it was or it wasn’t, it’s not for me
to second guess the jury.”
      After discussing another claim asserted by Watts in his
motion, the trial court returned to Watts’s argument that
insufficient evidence supported imposition of the gang
enhancement. Watts reiterated that he was specifically
asking the court to reweigh the evidence. The trial court
informed Watts: “My job . . . is not to retry the case in my
head and do whatever you want me to do because you think
the evidence wasn’t sufficient enough for the jury. That’s
what they do on appeal. That’s not what I do, okay.”
      On appeal, Watts contends that the trial court
“completely misunderstood the scope of its authority and its
duty to independently reweigh the evidence supporting the
gang enhancement allegation.” For example, in People v.
Dickens (2005) 130 Cal.App.4th 1245, the appellate court
observed that “[t]he trial court’s duty is to review the
evidence independently and satisfy itself that the evidence


provide the full citation to Davis when arguing before the
trial court during the hearing, he did cite the case correctly
in his new trial motion.




                              13
as a whole is sufficient to sustain the verdict.”9 (Id. at
p. 1251.) “Although the trial court is to be ‘guided’ by a
presumption in favor of the correctness of the jury’s verdict
[citation], this means only that the court may not arbitrarily
reject a verdict which is supported by substantial evidence.”
(Ibid.) “The trial court is not bound by the jury’s
determinations as to the credibility of witnesses or as to the
weight or effect to be accorded to the evidence. [Citations.]
Thus, the presumption that the verdict is correct does not
affect the trial court’s duty to give the defendant the benefit
of its independent determination as to the probative value of
the evidence. [Citation.] If the court finds that the evidence
is not sufficiently probative to sustain the verdict, it must
order a new trial.”10 (Id. at pp. 1251–1252.)

      9 Indeed, appellate courts have repeatedly emphasized
the discretion afforded trial courts in this respect as well as
the courts’ duty to independently review the evidence. “It is
the trial court’s function to determine independently
whether it is satisfied that there is sufficient credible
evidence to sustain the verdict. If the record contains any
substantial evidence which supports a judgment contrary to
that of the jury, the trial court’s ruling must be upheld, even
if there is also legally sufficient evidence to support the jury’s
verdict.” (People v. Dickens, supra, 130 Cal.App.4th at
p. 1254.)
      10 In contrast, a section 1118.1 motion seeks a
judgment of acquittal for insufficient evidence. Thus, unlike
when deciding a section 1181, subdivision (6) motion, the
trial court “evaluates the evidence in the light most
favorable to the prosecution.” (Porter v. Superior Court



                                14
      In short, the trial court “extends no evidentiary
deference” when ruling on a new trial motion under
section 1181, subdivision (6). (Porter v. Superior Court,
supra, 47 Cal.4th at p. 133.) “Instead, it independently
examines all the evidence to determine whether it is
sufficient to prove each required element beyond a
reasonable doubt to the judge, who sits, in effect, as a ‘13th
juror.’ ”11 (Ibid.) Thus, the grant of a section 1181,
subdivision (6) motion “is the equivalent of a mistrial caused
by a hung jury” and “does not bar retrial on double jeopardy
grounds.” (Ibid.) “This rule permits trial court oversight of

(2009) 47 Cal.4th 125, 132.) In considering this legal
question, “a court does not ‘ “ask itself whether it believes
that the evidence at the trial established guilt beyond a
reasonable doubt.” [Citation.] Instead, the relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.’ ” (People v. Lagunas (1994) 8 Cal.4th
1030, 1038, fn. 6.) This test is the same as that used by
appellate courts in deciding whether evidence is legally
sufficient to sustain a verdict. (Ibid.) Notably, in a
section 1118.1 motion, “the question . . . is simply whether
the prosecution has presented sufficient evidence to present
the matter to the jury for its determination.” (People v.
Ainsworth (1988) 45 Cal.3d 984, 1024.) This is the precise
test erroneously employed by the trial court in Watts’s case.
     11 Despite this edict, the trial court explicitly stated,
“I’m not going to be the jury” when refusing to “second guess
what the jury had to say.”




                              15
the verdict but ensures that the People, like the defendant,
have the charges resolved by a jury.” (Ibid.)
      We agree that the trial court employed the incorrect
test when reviewing Watts’s new trial motion, citing the
legal standard used when ruling on a section 1118.1 motion
rather than a section 1181, subdivision (6) motion. The
Attorney General contends that Watts has focused only
isolated comments made by the trial court. Not so. A review
of the motion hearing transcript reveals that the court
repeatedly informed Watts it could not reweigh the evidence
and that its only concern was whether the prosecution had
presented sufficient evidence to present the matter to the
jury. Yet, “[w]hen a trial court rules on a motion for new
trial based upon inadequacy of the evidence, it is vested with
a ‘plenary’ power—and burdened with a correlative duty—to
independently evaluate the evidence.” (Ryan v. Crown
Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775, 784.) As
discussed above, however, the court incorrectly articulated
both the scope of its discretion as well as the legal standard
by which Watts’s new trial motion should be judged.
      The Attorney General also argues that Watts forfeited
this claim because he did not inform the trial court during
the hearing that it had employed the wrong legal standard.
Again, we disagree. At the outset, we note that Watts was
appearing pro se by this time, drafting both the new trial
motion by hand and arguing directly before the trial court.
Moreover, Watts repeatedly argued that the court had the
ability to independently reweigh the evidence supporting the




                             16
gang enhancement. Moving on to the merits, the Attorney
General contends the court’s ruling “as a whole” shows that
it understood and applied the appropriate legal principles.
According to the Attorney General, the trial court expressly
stated on numerous occasions that sufficient evidence was
presented in support of the jury’s verdict. However, in the
transcript pages cited by the Attorney General, the trial
court explicitly told Watts: “I didn’t reweigh the evidence.
That’s not my job to reweigh the evidence. [¶] . . . [¶] It’s
not for me to reweigh the evidence.” Although the trial court
did recount the gang evidence that had been presented to the
jury, the court also made clear it would not “second guess”
the jury’s finding. The court’s position was that “there was
basically enough to go to the jury”—the standard a court
employs under section 1118.1, not section 1181,
subdivision (6). “This is not my decision,” the court
emphasized, “It’s the jury’s decision.”
      By focusing on one stray question the trial court asked
Watts during the hearing—“There was enough for the jury to
make the finding, true or false?”—the Attorney General, not
Watts, has relied upon isolated comments made by the court.
While the trial court refused to reweigh evidence proffered
by Watts at the hearing, but not admitted at trial, the court
also refused to reweigh the evidence that had been received
by the jury during the trial. The Attorney General’s
theory—not Watts’s theory—is inconsistent with the record
and the statements made by the trial court at the new trial
hearing. Indeed, the overall tenor of the comments supports




                             17
the interpretation that the trial court misperceived the
applicable standard and denied the motion by erroneously
applying a section 1118.1 standard rather than the proper
independent judgment standard.12
       The Attorney General next contends that even if the
trial court erred, the error was harmless because it is
apparent the court would not have granted relief on the
claim even if it had employed the correct legal standard.

     12  The Attorney General, perhaps recognizing the
ambiguity inherent in the trial court’s explanation of its
ruling, relies on People v. Davis, supra, 10 Cal.4th 463, in
which our Supreme Court stated that a trial court “has
broad discretion in ruling on a motion for a new trial, and
there is a strong presumption that it properly exercised that
discretion.” (Id. at. p. 524.) However, Davis provides no
assistance here. The Supreme Court in Davis noted the
record before it “establishe[d] that, after considering the
motion for a new trial, in which it expressly articulated the
correct standard of review, the trial court independently
determined the credibility of the witnesses and the probative
value of the evidence. Although defendant isolates
statements in which the trial court refers to the jury’s
verdicts, it is clear from the record as a whole that it did not
regard itself as bound by any of the jury's findings.” (Ibid.,
italics added.) Although Davis indulged the “strong
presumption” that the trial court’s ruling was within its
discretion, that conclusion was based in part on the trial
court’s express articulation of the correct standard and
because the record as a whole showed the trial court knew it
was not bound by the jury’s findings. Neither of those
factors is present here.




                              18
Thus, remand is not required. However, in cases with
similar procedural postures, appellate courts have remanded
to allow the trial court to exercise its discretion in the first
instance. For example, in People v. Robarge (1953) 41 Cal.2d
628, the Supreme Court found an abuse of discretion when
the trial court denied a motion for a new trial. The trial
court had stated the jury was the sole judge of witness
credibility, even if the court disbelieved what the witnesses
said, so long as sufficient evidence existed to support the
jury’s decision. (Id. at p. 634.) Robarge held “it is the
province of the trial judge to see that the jury intelligently
and justly performs its duty and, in the exercise of a proper
legal discretion, to determine whether there is sufficient
credible evidence to sustain the verdict.” (Ibid.) The
Supreme Court reversed because the trial court made
remarks which clearly showed it disbelieved a key witness
but felt bound by the jury’s contrary conclusion. As a result,
it determined that the trial court “failed to give defendant
the benefit of its independent conclusion as to the sufficiency
of credible evidence to support the verdict.” (Ibid.) The
judgment and order denying the motion for a new trial were
vacated with directions for the lower court to rehear the
motion. If the trial court determined that a new trial should
be granted, the defendant was entitled to a new trial on the
merits. If it was determined that the new trial should be
denied, then the trial court was directed to pronounce
judgment again upon the defendant. (Id. at p. 635.)




                              19
       In Ryan v. Crown Castle NG Networks, Inc., supra,
6 Cal.App.5th 775, “[n]othing in the record . . . suggest[ed]
that the trial court evaluated the evidence.” (Id. at p. 786.)
The trial court’s “refusal to exercise its power to
independently evaluate the sufficiency of the award
amounted to failure to exercise a discretion vested by law,
which of course is error.”13 (Ibid.) Consequently, the Court
of Appeal, Sixth District, reversed with directions to grant a
new trial.” (Id. at p. 797.)
       We review the trial court’s denial of a motion for a new
trial for abuse of discretion. (See People v. Knoller (2007) 41
Cal.4th 139, 156.) “Such an abuse of discretion arises if the
trial court based its decision on impermissible factors
[citation] or on an incorrect legal standard.” (Ibid.) Here,
the trial court’s comments suggest it did not independently
review the evidence and decide the proper weight to accord
it. The comment that “there was enough for the jury to
make the finding” indicates deference to the jury’s weighing

     13 In so holding, the court cited Fletcher v. Superior
Court (2002) 100 Cal.App.4th 386, 392 (failure to exercise
discretion constitutes denial of fair hearing and deprivation
of fundamental rights and requires reversal), Lippold v.
Hart (1969) 274 Cal.App.2d 24, 26 (where trial judge
misconceived duty at hearing on new trial motion, appellate
court will not blindly affirm judgment) and see People v.
Carter (2014) 227 Cal.App.4th 322, 328 (court abuses its
discretion when it misconceives duty, applies incorrect legal
standard, or fails to independently consider weight of
evidence).




                              20
of the evidence. In sum, the trial court did not articulate the
correct standard of review, failed to act as a 13th juror to
review and independently evaluate the evidence, and failed
to give Watts the benefit of its independent assessment
regarding the sufficiency of credible evidence to support the
verdicts. As such, we reject the Attorney General’s
contention that a rehearing is not required. Accordingly, the
judgment and order denying the motion for a new trial are
vacated and this matter is remanded for a new hearing
consistent with this opinion.14
      B.     Ineffective Assistance of Counsel
      Watts also contends that the trial court abused its
discretion when it denied his motion for a new trial based on
his trial attorney’s alleged ineffective assistance of counsel.
Watts’s claim was based on counsel’s failure to call “Little
Chris” as a trial witness, failure to object to the admission of
prejudicial gang evidence, failure to object to the detective’s
overly suggestive identification procedure, failure to object to
the admission of Imperial Courts Housing Projects’ video
footage as well as biblical verses found on Watts’s phone.
      In a proceeding that took place before the motion
hearing, Watts emphasized counsel’s failure to call Little
Chris as a witness as the basis for the motion. The trial
court informed Watts that ineffective assistance of counsel

     14 Watts also contends the trial court miscalculated his
pretrial credits. On remand, the trial court shall recalculate
Watts’s custody time, using the correct date of arrest as the
starting point for its calculation.




                              21
was not a proper ground to raise in a new trial motion.
“Ineffective assistance of counsel is not one of the ground for
motion for new trial. [¶] Now, if in fact . . . it was ineffective
assistance of counsel, that is something the appellate court
would take up.” Watts attempted to correct the trial court.
The court countered that ineffective assistance of counsel
was an issue on direct appeal rather than a new trial motion
under section 1181. “I don’t know why [Little Chris] didn’t
testify. I have no idea. That’s between you and your lawyer.
That is not for me to decide,” the court told Watts. “But that
would be something that, assuming this matter goes to
appeal, that would be something that the appellate court will
deal with. So it will come up there.”
      The trial court reiterated its position at the motion
hearing. Although the court acknowledged Watts had a due
process right to a fair trial, the court maintained that
ineffective assistance of counsel was not a cognizable basis
for a new trial. “If you believe that your lawyer should have
basically called [Little Chris] as a witness, maybe your
lawyer should have. That’s ineffective assistance of counsel.
That will come out on appeal. That is not basically within
the grounds for a motion for new trial.” “Now I keep telling
you over and over again this is not an appeal. Maybe
[defense counsel] was incompetent, maybe he was
ineffective. Maybe so. Maybe the gang [evidence] shouldn’t
have come in, maybe so[.] I’m not suggesting it should or it
shouldn’t. That is not what we’re here to decide, okay.
We’re here to decide if the court made an error. . . . So the




                               22
court is bound by the mandates of section 1181 in terms of
making a decision.”
      Watts cited People v. Mayorga (1985) 171 Cal.App.3d
929 in support of the court’s ability to review his ineffective
assistance claim.15 Despite the court’s prior
acknowledgment that a defendant could move for a new trial
based on an alleged due process violation rather than the
statutory grounds listed in section 1181, the court continued
to maintain it had no authority to review Watts’s ineffective
assistance of counsel claim. Watts asked the court, “Your
honor, if I understand you correct[ly], basically you’re saying
that . . . whether he’s incompetent or not, it’s . . . not for you
to decide, correct?” The court answered, “That’s right.
Exactly what I’m saying. That will be decided by a higher
court. That’s exactly what I’m saying.”
      However, the court also declined to address the claim
because Watts had failed to present any admissible evidence
to support his claim. On a motion for a new trial, the
defendant has the burden of showing both the
ineffectiveness of counsel and the prejudice it caused.


      15People v. Mayorga, supra, 171 Cal.App.3d at page
940 held that “new trials may be ordered for nonstatutory
reasons when an error has occurred resulting in the denial of
defendant’s right to a fair trial, and the defendant has had
no earlier opportunity to raise the issue.” (See People v.
Fosselman (1983) 33 Cal.3d 572, 582–583; People v. Davis
(1973) 31 Cal.App.3d 106, 110; People v. Oliver (1975) 46
Cal.App.3d 747, 751–752.)




                               23
(People v. Dennis (1986) 177 Cal.App.3d 863, 872.)
Nevertheless, Watts did not submit a declaration or affidavit
from defense counsel regarding his decision not to call Little
Chris as a trial witness. Nor did Watts call counsel as a
witness at the motion hearing.16 Although Watts had
procured a declaration from Little Chris, which was then
submitted to the trial court, Little Chris was not present at
the hearing. “I can’t reweigh a piece of paper and decide it
would have a good outcome based on a piece of paper rather
than somebody coming to court to testify,” the court told
Watts. “I can’t do it. I’m not going to do it.”17
      Although the trial court appears to have
misunderstood its prerogative to review Watts’s claim, the
error was also compounded by Watts’s failure to fully


     16  Conversely, however, the prosecutor offered some
possible insight into defense counsel’s decision. The
prosecutor noted that counsel had listened to Little Chris’
recorded statement before trial and “there were specific
aspects of [Little Chris’] statement that were inconsistent
and undermined his credibility as a witness, as well as
whatever was going on with [Little Chris’] prior history.” In
short, the prosecutor said, counsel “listened to the recording,
made assessments about the substance of it, and the
declarant himself . . . and made a conclusion based upon his
experience that this person was not going to assist the case
for Mr. Watts.”
     17The trial court also noted that the declaration was
hearsay, had been signed three months earlier, and
contained inconsistent statements.




                              24
present this particular claim to the trial court. “You have
presented nothing that would suggest—other than you
surmising or speculating or you believe that if somebody else
had been called as a witness that would have made a
difference. I respect that you believe that,” the court told
Watts. “But there is no—there is nothing in evidence to
basically support or substantiate that other than your
beliefs.”
       Although section 1181 sets forth nine grounds for
granting a motion for a new trial, ineffective assistance of
counsel is not one of them. The California Supreme Court
has explained, however, that “in appropriate circumstances,
the trial court should consider a claim of ineffective
assistance of counsel in a motion for new trial, because
‘justice is expedited when the issue of counsel’s effectiveness
can be resolved promptly at the trial level.’ ” (People v.
Cornwell (2005) 37 Cal.4th 50, 101.)
       “But our assumption has been that courts would decide
such claims in the context of a motion for new trial when the
court’s own observation of the trial would supply a basis for
the court to act expeditiously on the motion.” (People v.
Cornwell, supra, 37 Cal.4th at p. 101, italics added.) “It is
undeniable that trial judges are particularly well suited to
observe courtroom performance and to rule on the adequacy
of counsel in criminal cases tried before them. [Citation.]
Thus, in appropriate circumstances justice will be expedited
by avoiding appellate review, or habeas corpus proceedings,
in favor of presenting the issue of counsel’s effectiveness to




                              25
the trial court as the basis of a motion for new trial. If the
court is able to determine the effectiveness issue on such
motion, it should do so.” (People v. Fosselman, supra, 33
Cal.3d at pp. 582–583, italics added.)
       Here, Watts’s claim of ineffective assistance of counsel
was not necessarily appropriate for resolution in a new trial
motion because it involved defense counsel’s action, or
inaction, outside the courtroom, in deciding whether to call
Little Chris as a witness. As the trial court noted, “based on
my observation of the way [defense counsel] conducted this
trial . . . , there is no basis for me to decide he was basically
ineffective as to how he basically tried the case.”
Furthermore, ineffective assistance of counsel claims “must
be supported by declarations or other proffered testimony
establishing both the substance of the omitted evidence and
its likelihood for exonerating the accused.” (People v. Cox
(1991) 53 Cal.3d. 618, 662.) Thus, Watts’s failure to provide
a declaration or affidavit from defense counsel to support his
claim of deficient performance or prejudice, as well as
Watts’s failure to call Little Chris to the stand at the motion
hearing, left the trial court with little choice. (See People v.
Jackson (1986) 187 Cal.App.3d 499, 507 [upholding denial of
new trial motion based on ineffective assistance of counsel
because defendant did not submit affidavits or testimony];
People v. Dennis, supra, 177 Cal.App.3d at p. 873 [defendant
must establish “by affidavit, oral testimony or reference to
the trial record” that trial counsel was ineffective].)




                               26
      “Reviewing courts will reverse convictions on the
ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical
purpose for his act or omission. In all other cases the
conviction will be affirmed and the defendant relegated to
habeas corpus proceedings.” (People v. Fosselman, supra, 33
Cal.3d at p. 581.) Whatever counsel’s motive for not calling
Little Chris as a trial witness, the record does not establish
that counsel had no reasonable basis for his decision. If
Watts wishes to pursue the point, therefore, he may do so by
petition for habeas corpus.18 (See id. at p. 582.)
III. Watts’s Remaining Claims
      Watts also contends that the trial court erred when it
 precluded him from introducing evidence of Videau’s blood
 alcohol level at the time of the shooting and that instructing
 the jury using CALCRIM No. 315 violated his due process
 rights. Neither argument has merit.
      A.    Videau’s Blood Alcohol Level
      During trial, the prosecution moved to exclude Videau’s
 toxicology results under Evidence Code section 352, arguing
 they were irrelevant and that the prejudicial effect of the


     18 We reach the same conclusion with respect to
counsel’s other alleged errors. Once again, Watts’s claims
involved defense counsel’s action, or inaction, outside the
courtroom and Watts failed to procure a declaration or
affidavit from counsel that discussed these particular
decisions. Thus, if Watts wishes to pursue the point, he may
do so by petition for habeas corpus.




                              27
evidence outweighed any probative value.19 The defense
countered that the toxicology results were relevant when
evaluating Michelle Howard’s credibility. Although Howard
testified she had one or two beers with Videau, his blood
alcohol content level was .32, nearly three times the legal
limit. The defense argued that since Howard was with
Videau for hours before the shooting, Videau’s level of
intoxication was relevant to assess Howard’s credibility as
well as her ability to perceive and relay accurate
information. The prosecution responded that no evidence
supported the defense claim that Howard was with Videau
throughout the night, and it was possible Videau had
consumed alcohol outside of Howard’s presence. The trial
court agreed, noting that Howard’s testimony never
established how long they were together. Indeed, Howard
testified that there were times when she did not see Videau.
      The defense also argued that Videau’s blood alcohol
level was relevant because “at least some circumstantial
evidence” showed more drinking took place than what
Howard had described. The trial court noted that many
factors contribute to blood alcohol levels, including tolerance
for alcohol, and the duration an individual had been

     19  Pursuant to Evidence Code section 352, “[t]he court
in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.”




                             28
drinking. In this case, Howard met Videau on the night of
the shooting. She did not know how alcohol affected Videau
and, to the extent the defense suggested otherwise, no
evidence supported this argument. The trial court
concluded that defense counsel’s arguments were “just
speculation and conjecture” and that, without more,
Videau’s blood alcohol level would be excluded.
      A trial court has discretion to admit or exclude
evidence offered for impeachment. (People v. Brown (2003)
31 Cal.4th 518, 534.) We review for abuse of discretion a
trial court’s ruling to admit or exclude proffered evidence
under Evidence Code section 352. (People v. Hamilton
(2009) 45 Cal.4th 863, 929–930.) A court abuses its
discretion when its ruling “falls outside the bounds of
reason.” (People v. Osband (1996) 13 Cal.4th 622, 666.) In
other words, abuse of discretion is established by showing
the trial court exercised its discretion in an “arbitrary,
capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” (People v. Carrington
(2009) 47 Cal.4th 145, 195.)
      We agree with the trial court that the connection
between the excluded evidence and the issues at this trial
was unduly tenuous. Indeed, although the defense argued
that Videau’s intoxication had some bearing on Howard’s
credibility and her ability to perceive and relay accurate
information, there was no evidence that Howard was with
Videau throughout the night. While both attended a party
before the shooting, they did not meet until after the party




                            29
was over. Howard left the party by herself and then went to
the Imperial Courts Housing Projects where she met
Videau. She accompanied Videau for a few hours before the
shooting took place. As the trial court recognized, Videau
could have consumed alcohol at the party, outside of
Howard’s presence or knowledge. Thus, there was no
evidence that Howard knew how much alcohol Videau had
consumed throughout the night.
     Even if Howard had somehow acquired this knowledge,
there was no evidence she also knew Videau’s tolerance
level for alcohol. As the trial court noted, tolerance varies
with each individual and thus it was speculative to conclude
that Howard had the ability to assess the effect of alcohol on
Videau. This is especially true given that there was no
testimony that Videau showed any visible signs of
intoxication. Consequently, Videau’s blood alcohol results
neither undercut Howard’s credibility nor called her ability
to perceive events into question. Accordingly, the trial court
did not abuse its discretion in excluding Videau’s toxicology
results.
     Furthermore, evidence is prejudicial within the
meaning of Evidence Code section 352 if it tends to evoke an
emotional bias against a person or to cause the jury to
prejudge a person or cause on the basis of extraneous
factors. (People v. Cowan (2010) 50 Cal.4th 401, 475.) In
short, a trial court “ ‘ “is not required to admit evidence that
merely makes the victim of a crime look bad.” ’ ” (People v.
Loker (2008) 44 Cal.4th 691, 736; see People v. Kelly (1992)




                              30
1 Cal.4th 495, 523 [rejecting defendant’s attempted
introduction of toxicology reports showing drugs and alcohol
in victim’s blood where results were irrelevant to issues
presented].)
     Finally, exclusion of this evidence did not interfere
with Watts’s constitutional right to present a defense. “As a
general matter, the ‘[a]pplication of the ordinary rules of
evidence . . . does not impermissibly infringe on a
defendant’s right to present a defense.’ ” (People v. Fudge
(1994) 7 Cal.4th 1075, 1102–1103.) “Although completely
excluding evidence of an accused’s defense theoretically
could rise to this level, excluding defense evidence on a
minor or subsidiary point does not impair an accused’s due
process right to present a defense.” (Id. at p. 1103.) In
other words, a defendant has no constitutionally protected
right to introduce evidence that is irrelevant or only
remotely relevant. (People v. Hall (1986) 41 Cal.3d 826,
834–835.) The toxicology results, which had little probative
value, were only remotely relevant.
     Nor did the trial court violate Watts’s confrontation
clause rights. “ ‘[T]rial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.’ [Citations.]
Exclusion of impeaching evidence on collateral matters
which has only slight probative value on the issue of




                             31
veracity does not infringe on the defendant’s right of
confrontation.” (People v. Greenberger (1997) 58
Cal.App.4th 298, 350; see Delaware v. Van Arsdall (1986)
475 U.S. 673, 679; People v. Cooper (1991) 53 Cal.3d 771,
817.) Because the toxicology results in this case had only
slight or no probative value with respect to Howard’s
veracity or observational abilities, their exclusion did not
infringe on Watts’s right of confrontation.
     B.    CALCRIM No. 315
     CALCRIM No. 315 enumerates the factors a jury is to
consider when evaluating identification testimony. The
pattern jury instruction lists 14 different factors a jury may
consider in evaluating that testimony. One of those factors
is: “How certain was the witness when he or she made an
identification?” Watts contends CALCRIM No. 315 is
unconstitutional because it instructs the jury to consider a
witness’s degree of certainty when evaluating eyewitness
identification. However, a series of cases from the United
States and California Supreme Courts, and California
appellate courts, have repeatedly found that “certainty” is
an appropriate factor to evaluate eyewitness identifications,
and that CALCRIM No. 315, as well as its predecessor
CALJIC No. 2.92, are correct statements of the law and
constitutional.20


     20 CALJIC No. 2.92 instructed the jury that it should
consider “[t]he extent to which the witness is either certain
or uncertain of the identification.”




                              32
     For example, in Neil v. Biggers (1972) 409 U.S. 188, the
United States Supreme Court identified several factors to
consider when determining the reliability of an
identification, including the level of certainty demonstrated
by the witness at the confrontation. (Id. at pp. 199–200.) In
Perry v. New Hampshire (2012) 565 U.S. 228, the United
States Supreme Court addressed a defendant’s due process
argument regarding the reliability of an identification. In
so doing, Perry cited the factors set forth in Neil, including
certainty, and held that these factors are properly
considered when evaluating the reliability of eyewitness
identifications. (Id. at pp. 239–241 & fn. 5.) In People v.
Gaglione (1994) 26 Cal.App.4th 1291, the defendant argued
that the certainty factor in CALJIC No. 2.92 was erroneous
and should have been deleted. (Id. at pp. 1302–1303.)
Gaglione held the instruction was proper because it did not
take a position on the significance of the witness’s certainty,
but merely called attention to certainty as a factor. (Ibid.)
A similar result was reached in People v. Sullivan (2007)
151 Cal.App.4th 524, which rejected the defendant’s
argument that the trial court should have deleted the
certainty factor from the instruction. (Id. at pp. 561–562.)
     Although Watts cites studies and out-of-state cases
that have questioned the validity of certainty as a factor
when evaluating eyewitness testimony, the California
Supreme Court recently rejected an attack on the
“certainty” factor, similar to the one which Watts has raised
here. “Studies concluding there is, at best, a weak




                             33
correlation between witness certainty and accuracy are
nothing new. We cited some of them three decades ago to
support our holding that the trial court has discretion to
admit expert testimony regarding the reliability of
eyewitness identification.” (People v. Sanchez (2016) 63
Cal.4th 411, 462 (Sanchez).) Indeed, our Supreme Court
noted it had “specifically approved” CALJIC No. 2.92,
including its certainty factor and has “since reiterated the
propriety of including this factor.” (Ibid.) Sanchez further
held that the defendant did not suffer any prejudice from
the court’s use of the instruction. “The instruction cited the
certainty factor in a neutral manner, telling the jury only
that it could consider it. It did not suggest that certainty
equals accuracy. In this case, telling it to consider this
factor could only benefit defendant when it came to the
uncertain identifications, and it was unlikely to harm him
regarding the certain ones.” (Ibid.)
     We are bound by the California Supreme Court ruling
in Sanchez, supra, 63 Cal.4th 411 as well as the United
States Supreme Court’s continued approval of the
“certainty” factor in Neil v. Biggers, supra, 409 U.S. 188 and
Perry v. New Hampshire, supra, 565 U.S. 228. We hold the
court correctly instructed the jury with CALCRIM No. 315.
To that end, we also hold that defense counsel’s failure to
object to the instruction was not ineffective assistance. As
with the other attorney errors alleged by Watts, defense
counsel was not given an opportunity to offer reasons for the
inaction. Speculating that no reasonable tactical or




                             34
strategic reason supported the failure to object does not
establish ineffective assistance of counsel. (See People v.
Mattson (1990) 50 Cal.3d 826, 876, 877.) Moreover, counsel
was not required to make a meritless objection. (See People
v. Ochoa (1998) 19 Cal.4th 353, 463.)
                           DISPOSITION
     The trial court’s order denying Watts’s new trial
motion is affirmed in part and reversed in part. The order
is reversed with respect to the gang enhancement allegation
(Pen. Code, § 186.22, subd. (b)(1)(C)) only. The trial court is
directed to conduct a limited rehearing as to whether the
evidence was sufficient to sustain the jury’s true finding as
to this allegation. The trial court shall also recalculate
Watts’s pretrial custody credits at that time. In all other
respects, the order is affirmed.
     CERTIFIED FOR PARTIAL PUBLICATION.



                                   JOHNSON, J.

We concur:



             ROTHSCHILD, P. J.



             LUI, J.




                              35
