Filed 4/11/18   Opinion on remand from Supreme Court
            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.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant


       * Pursuant  to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication with the exception
of part II of the Discussion.
Attorney General, Susan Sullivan Pithey and Esther P. Kim,
Deputy Attorneys 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. We further hold that the case must be
remanded so that the trial court can exercise its newly
ripe discretion under Penal Code1 section 12022.53,
subdivision (h), and determine whether any of the imposed
firearm enhancements should be stricken. The order is affirmed
in all other respects.




      1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.




                                2
                           BACKGROUND
I.    Overview of charges
      The Los Angeles County District Attorney’s Office charged
Watts with one count of murder (§ 187, subd. (a); count 1), 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.




      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 about five to
seven gunshots. Howard later returned to the playground to see
Videau’s lifeless body on the ground.3



      3 Videausustained a total of seven gunshot wounds. Two
were fatal. The medical examiner who conducted Videau’s




                                4
      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.
       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.



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 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.
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




                                6
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
       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


      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
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.
       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@gmail.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




                                8
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 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


      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.




                                 9
not supported by 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 it say that in
[section] 1181, that that’s one of the factors?”7 Watts pointed the


      7Section 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




                                 10
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 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


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 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.




                                  11
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 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

      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.)




                                 12
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.)
       In short, the trial court “extends no evidentiary deference”
when ruling on a new trial motion under section 1181,


      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 (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.




                                 13
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 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.

      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.”




                                 14
       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 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, as the
Attorney General notes, 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.”
       The trial court’s question to Watts—“There was enough for
the jury to make the finding, true or false?”—does not
demonstrate that the court understood the scope of its authority.
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




                                15
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 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. Thus, remand is not
required. However, in cases with similar procedural postures,

      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.




                                 16
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.)
       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




                                17
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 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




      13 Inso 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).




                                18
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 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

      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.




                                  19
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 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


      15 People  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.)




                                 20
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. (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



      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.”




                                21
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 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

         17 The
             trial court also noted that the declaration was
hearsay, had been signed three months earlier, and contained
inconsistent statements.




                                 22
circumstances justice will be expedited by avoiding appellate
review, or habeas corpus proceedings, in favor of presenting the
issue of counsel’s effectiveness to 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].)
       “Reviewing courts will reverse convictions on the ground of
inadequate counsel only if the record on appeal affirmatively




                                 23
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.)
II.   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 evidence
outweighed any probative value.19 The defense countered that

      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.
      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.”




                                 24
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 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




                               25
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 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




                               26
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) 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.




                                27
      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 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




                               28
predecessor CALJIC No. 2.92, are correct statements of the law
and constitutional.20
      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

      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.”




                                29
the one which Watts has raised here. “Studies concluding there
is, at best, a weak 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 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.)




                                30
 Moreover, counsel was not required to make a meritless
 objection. (See People v. Ochoa (1998) 19 Cal.4th 353, 463.)
                     PETITION FOR REVIEW
       After we published our opinion, Watts sought review in the
 California Supreme Court. In an order filed February 21, 2018,
 the Supreme Court granted review and ordered the matter
 transferred back to this court with directions to vacate its
 decision and reconsider the cause in light of Senate Bill 620’s
 recent amendments to section 12022.53.
       On October 11, 2017, the Governor signed Senate Bill 620,
which amends section 12022.53 to give trial courts the authority
to strike in the interests of justice a firearm enhancement
allegation found true under that statute. Effective January 1,
2018, section 12022.53, subdivision (h), was amended to state:
“The court may, in the interest of justice pursuant to Section
1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” (Stats.
2017, ch. 682, § 2.)
       Pursuant to In re Estrada (1965) 63 Cal.2d 740, we hold
that the section 12022.53, subdivision (h), amendment applies
here. Under Estrada, courts presume that, absent evidence to
the contrary, the Legislature intends an amendment reducing
punishment under a criminal statute to apply retroactively to
cases not yet final on appeal. (Id. at pp. 747–748; see People v.
Brown (2012) 54 Cal.4th 314, 324.) Estrada has been applied not
only to amendments reducing the penalty for a particular offense,
but also to amendments giving the court the discretion to impose
a lesser penalty. (People v. Francis (1969) 71 Cal.2d 70, 75.)




                               31
Furthermore, because this opinion will be issued after January 1,
2018, the issue is now ripe. Although we express no opinion as to
how the trial court should exercise its newly granted discretion
under section 12022.53, subdivision (h), we do conclude that the
trial court must exercise this discretion in the first instance.21
                           DISPOSITION
       The trial court’s order denying Bobby 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)) and the firearm enhancement
(Pen. Code, § 12022.53). The trial court is directed to (1) conduct
a limited rehearing as to whether the evidence was sufficient to
sustain the jury’s true finding as to the gang enhancement
allegation and (2) hold a sentencing hearing to consider whether,
pursuant to Penal Code section 12022.53, subdivision (h), to
strike or dismiss an enhancement otherwise required by Penal
Code section 12022.53. 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.


      21The People filed a supplemental brief after the Supreme
Court remanded the case and agree with this result.




                                32
