Filed 4/21/14 P. v. Pardue CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C064864

                   Plaintiff and Respondent,                                     (Super. Ct. No. 08F01893)

         v.

SHONN LYNN PARDUE,

                   Defendant and Appellant.




         Defendant Shonn Lynn Pardue became upset over the breakup of a romantic
relationship and violently lashed out at his former girlfriend, Dominique Griffin, her
family, and a friend. A jury found defendant guilty of two counts of assault with a
firearm (Pen. Code, § 245, subd. (a)(2)),1 three counts of kidnapping (§ 207, subd. (a)),
three counts of making criminal threats (§ 422), two counts of attempted criminal threats




1   Undesignated statutory references are to the Penal Code.

                                                             1
(§§ 664, 422), and unlawful possession of ammunition (former § 12316, subd. (b)(1)).
The jury also found true three allegations of personal use of a firearm (§ 12022.5,
subd. (a)[(1)]) and one allegation of personal infliction of great bodily injury (§ 12022.7,
subd. (a)). Defendant was sentenced to 175 years to life plus a determinate term of
11 years four months.
        Defendant appeals, contending (1) the prosecutor discriminated against African-
Americans during jury selection (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69]
(Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler)), (2) the trial court
improperly excluded third party culpability evidence, (3) defense counsel was ineffective
for failing to object to sanitizing the victims’ prior convictions for impeachment, (4) the
prosecutor committed misconduct in closing argument, and (5) the trial court made
various sentencing errors.
        We conclude there were sentencing errors and remand for resentencing, but
otherwise affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
        A third amended information filed on March 3, 2010 charged defendant with the
following offenses involving five victims committed on or about2 March 2, 2008:
        Count One - Assault with a firearm on Mikio Morris, with personal use of a
firearm. (§§ 245, subd. (a)(2), 1203.06, subd. (a)(1), 12022.5, subd. (a)3.)
        Count Two - Kidnapping of Mikio Morris, with personal use of a firearm.
(§§ 207, subd. (a), 1203.06, subd. (a)(1), 12022.5, subd. (a).)
        Count Three - Criminal threats against Mikio Morris, with personal use of a
firearm. (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)


2   The events began on March 2d and continued until 1:20 a.m. on March 3d.
3 We note that at the time of this offense, there was no subdivision (a)(1) of section
12022.5. There was only a subdivision (a).

                                              2
        Count Four - Attempted criminal threats against Vivian Richardson. (§§ 422,
664.)
        Count Five - Assault with a firearm on Mark McFadzean, with personal use of a
firearm and personal infliction of great bodily injury. (§§ 245, subd. (a)(2), 1203.06,
subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a).)
        Count Six - Kidnapping of Mark McFadzean, with personal discharge of a firearm
and personal infliction of great bodily injury. (§§ 207, subd. (a), 12022.53, subds. (c)-(d),
12022.7, subd. (a).)
        Count Seven - Kidnapping of Dominique Griffin. (§ 207, subd. (a).)
        Count Eight - Criminal threats against Mark McFadzean, with personal use of a
firearm. (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)
        Count Nine - Criminal threats against Dominique Griffin, with personal use of a
firearm. (§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)
        Count Ten - Criminal threats against D.W., with personal use of a firearm.
(§§ 422, 1203.06, subd. (a)(1), 12022.5, subd. (a).)
        Count Eleven - Unlawful possession of ammunition by a felon. (former § 12316,
subd. (b)(1).)
        The pleading also alleged two prior serious felony convictions from October 1997,
assault with a firearm and first degree burglary. (§ 667, subds. (b)-(i), 1170.12.)
                                 The Prosecution’s Case
        Defendant and victim Dominique Griffin had a romantic relationship that ended in
February 2008 when defendant moved out of the home they had shared with their three-
year-old daughter and Griffin’s eight-year-old son and 15-year-old daughter, D.W.
        In the early afternoon of March 2, 2008, defendant became upset when he could
not find Griffin at her home and saw in her driveway the car of a man, Mark McFadzean,




                                              3
whom defendant believed was Griffin’s new boyfriend.4 D.W. telephoned Griffin’s
mother, Vivian Richardson, and said defendant was at the house acting crazy.
Richardson has known defendant since he was a child and knows him to be prone to
“excited episodes.” Defendant then phoned Richardson, said he was upset about the end
of his relationship with Griffin and planned to vandalize the new boyfriend’s car or have
it impounded. Richardson asked her godson, Mikio Morris, to protect McFadzean’s car
by blocking it with her truck. Morris did so. Morris then walked down the street to get
an ice cream. As he walked back toward the house, defendant met Morris in the
driveway. He put his arm around Morris, pressed a gun in Morris’s rib, and ordered him
into Griffin’s house, saying he did not want to shoot Morris outside. Inside, Morris saw
defendant’s two nephews, looking mad. At gunpoint, defendant questioned Morris about
Griffin’s whereabouts. Morris said he had had an argument with Griffin and had not
spoken to her for about a month. Defendant demanded to check Morris’s cell phone call
history and threatened to shoot Morris if Griffin’s number appeared. When Griffin’s
number did not appear in the cell phone, defendant wept and said he did not know where
Griffin or their daughter was. Morris received a phone call from Richardson and told her
that defendant was at the house with a gun. Defendant moved out of Morris’s view, and
Morris heard clinking sounds like the unloading of a gun. Defendant returned and
showed Morris that the gun was unloaded.
       Richardson, without calling the police, drove to Griffin’s house. Defendant,
crying and angry, said he was going to take his daughter, kill himself and everyone else.
Richardson did not take the threats seriously and told defendant to stop talking crazy.
She never saw defendant holding a gun at the house that day but she did see a revolver on
a table.



4 Griffin and McFadzean testified they were just friends at the time of the offenses
(March 2008). But by the time of trial in March 2010, they were married.

                                             4
       Richardson said she would give defendant his daughter in exchange for defendant
releasing Morris. Richardson testified she feared defendant might hurt Morris but
believed defendant would not hurt his own daughter. Everyone drove in Richardson’s
van to her home, a short distance away. Morris went inside, got defendant’s daughter and
gave her to defendant. Defendant physically blocked Morris from getting back into the
van, and Richardson told Morris to stay. Richardson drove defendant, his daughter, and
his nephews to a grocery store and thereafter dropped them all off with defendant’s sister,
Nedra King. No one called the police at that time.
       Richardson later received a phone call from Griffin, who was in Los Angeles.
Richardson related what had happened. Griffin said to call the police. Richardson was
reluctant because she did not want to get defendant in trouble, and having watched prior
similar episodes of defendant, she did not believe his conduct was completely out of the
ordinary. When Richardson eventually spoke with police, she said she had not called
them because defendant threatened to kill everyone if she did. Her main motivation was
to get defendant away from her family.
       Griffin and McFadzean returned that night around 10:30 or 11:00 p.m. (according
to Griffin) or between 9:00 and 11:00 p.m. (according to McFadzean). The security gate
on Griffin’s front door was locked. D.W. let them in. Griffin saw that her bedroom had
been ransacked. As she walked through the house, defendant jumped out from behind a
speaker, where he had been hiding. He had a gun in his hand and said, “I’m gonna
fucking kill you.” She picked up a phone. He pointed the gun at her, said, “Put the
fucking phone down,” and “I’m gonna kill you.” She feared for her life and threw the
phone down.
       Defendant grabbed McFadzean around the neck from behind, hit him with the gun,
pulled him into the living room and had him sit or kneel. McFadzean said he was
Griffin’s friend. Defendant said, “That’s my fuckin’ wife.” Defendant got upset, yelling
and screaming. D.W. came out of her room. Griffin testified that everyone was yelling

                                             5
and screaming, pleading with defendant to calm down. McFadzean, who is smaller than
defendant, testified he was afraid for his life and kept quiet. Defendant kept pointing the
gun back and forth, saying, “You guys, I’ll fucking kill you.” Griffin pleaded with
defendant just to take her and leave everyone else alone. Defendant replied, “No, this
mother fucker is my ticket to Oak Park.”
        Defendant grabbed McFadzean in a headlock with a gun to his head. Griffin,
followed by defendant, who was holding McFadzean, went outside. Defendant told
Griffin to drive. Defendant made McFadzean lie face down in the backseat of Griffin’s
car and held the gun to the back of McFadzean’s head. D.W., who had insisted on
accompanying them, tried to talk defendant down.5 Defendant directed Griffin to drive
to his sister Nedra’s home and honk the horn. No one came out. Defendant told Griffin,
“Your daughter’s in that house. Go get [her], go.” Griffin knocked on the door but no
one answered. Defendant started screaming for his sister to come outside, with no
response. Defendant started shaking, rocking the car, and saying “This is what you want.
This is what you want,” and fired the gun, shooting McFadzean in the leg. Defendant
jumped out of the car. Griffin ran to the back of the car and saw McFadzean’s head
hanging down outside of the car, with his legs still inside the car. Defendant, with the
gun in his hand, said, “I’m gonna kill this mother fucker. I’m going to kill this mother
fucker.” Defendant’s sister and niece came outside, distracting defendant. Griffin and
D.W. got back in the car and drove off with McFadzean toward a hospital. Griffin called
911 as they drove. They stopped when they saw a police officer, and the officer
summoned an ambulance.
        The jury saw a video captured by a camera mounted on the patrol car, showing
Griffin and D.W. upset outside the car while the police assisted McFadzean. The video




5   D.W. did not testify.

                                             6
also showed Vivian Richardson arriving about 45 minutes later, and a crime scene
investigation officer opening the trunk of the car, allowing Griffin to remove belongings
before the car was impounded.
       While Griffin was in the police station, she received a phone call from defendant.
He demanded, “Why did you tell the police I kidnapped my daughter?” By that time, the
incident had been reported on the news.
       Later, after Griffin arrived at her home, she asked the police to check the premises
because she was in fear defendant might be lying in wait for her. The police found a
duffel bag in Griffin’s yard. The yard was wet from a recent rain, but the duffel bag was
dry. The bag contained .357 revolver ammunition, defendant’s parole card, and personal
photos of defendant and Griffin, including some of a sexual nature.6
       Defendant called Griffin later on March 3, claiming he was leaving town with
their daughter and would get a new mother for her. However, Griffin was able to retrieve
the child from defendant’s relatives.
       Police arrested defendant in Las Vegas a year later, in March 2009. When
arrested, defendant used the name of his brother, Richard Pardue.
       A treating trauma surgeon testified McFadzean lost a substantial amount of blood
before arriving in the emergency room and would have died within a couple of hours
without medical treatment. A projectile penetrated the right thigh and lodged in the left
thigh. The femoral artery in McFadzean’s right leg was cut in half, and the femur bone in
his left thigh was shattered. McFadzean was in surgery for several hours. Doctors
removed a vein from his left leg to repair his artery and placed a rod in his left leg to
replace the shattered bone. The surgeon removed bullet fragments from his leg and




6 The parties stipulated defendant was a felon at the time he was alleged to be a felon in
possession of ammunition.

                                              7
opined that the wounds were consistent with gunshot wounds. McFadzean remains in
pain and will have to take medication for the rest of his life to avoid a fatal blood clot.
       McFadzean testified that he lost consciousness shortly after being shot. The next
thing he remembered was waking up in the hospital connected to breathing tubes.
       At trial, as at the preliminary hearing, McFadzean identified defendant as the
perpetrator. McFadzean did not identify defendant when police presented him with a
photo lineup in the hospital; but at that time he was in pain, on pain medication, and
attached to breathing tubes.
       On the witness stand, Griffin admitted she was convicted of “two felonies
involving moral turpitude” in 2005. McFadzean admitted he was convicted of “three
crimes of moral turpitude” in 1992, “a crime of moral turpitude” in 1993, “two crimes of
moral turpitude” in 1996, and two or three other “crime[s] of moral turpitude” between
1997 and 1999. By 2008, he had turned his life around and had become an auto
mechanic and business owner.
                                     The Defense Case
       The defense called defendant’s sister Nedra King as a witness, but she invoked the
privilege against self-incrimination.
       Defendant’s niece, A.B., testified. She claimed she did not hear a gunshot and
came out of her house because someone knocked on the door. She saw defendant and
Griffin arguing not far from a burgundy car, and saw D.W. crying and screaming. A.B.
said she did not know what was happening and ran around the corner to get a cousin.
When she returned, the group was gone. The niece initially denied seeing a man in the
car but admitted it after the prosecutor confronted her with her statement to police. She
admitted she was “adjudicated for a crime involving moral turpitude” in 2006.
       Defendant’s older brother, Richard Pardue, testified to his opinion that Griffin is
untrustworthy, based on her having falsely told defendant that she and Richard had had



                                              8
sex. Richard believes he and defendant are honest persons. Richard admitted he was
convicted of “a misdemeanor crime of moral turpitude” in 2001.
                                    Verdicts and Sentencing
           On March 22, 2010, the jury found defendant guilty on all counts except count ten,
as to which the jury found defendant not guilty of criminal threats against D.W., but
guilty of the lesser included offense of attempted criminal threats. The jury found true
three allegations of personal use of a firearm and two allegations of personal infliction of
great bodily injury. Subsequently, the trial court found true the two prior serious felony
conviction allegations and declined to strike these allegations.
           On April 19, 2010, the trial court sentenced defendant as follows:
           Count One - Assault with a firearm on Morris, 25 years to life, plus 10 years for a
firearm enhancement (§ 12022.5, subd. (a));
           Count Two - Kidnapping of Morris, concurrent 25 years to life;
           Count Three - Criminal threats against Morris, 25 years to life, stayed pursuant to
section 654;7
           Count Four - Attempted criminal threats against Richardson, concurrent 25 years
to life;
           Count Five - Assault with a firearm on McFadzean, consecutive 25 years to life,
plus a consecutive term of 25 years to life for a firearm enhancement § 12022.53,
subd. (c)),8 with an additional 10 years for another firearm enhancement pursuant to
section 12022.5, subdivision (d), stayed pursuant to section 654;



7 We discuss post the court’s sentencing in which it stayed the sentences on the criminal
threats counts related to Morris, McFadzean and Griffin pursuant to section 654, but also
ordered that the same sentences run concurrently or consecutively.
8  We discuss post the fact that this enhancement was not charged as to count five, and
the court did not sentence defendant on the great bodily injury allegation the jury found
true.

                                                9
       Count Six - Kidnapping of McFadzean, consecutive 25 years to life;
       Count Seven - Kidnapping of Griffin, consecutive 25 years to life;
       Count Eight - Criminal threats against McFadzean, 25 years to life, stayed
pursuant to section 654;
       Count Nine - Criminal threats against Griffin, 25 years to life, stayed pursuant to
section 654;
       Count Ten - Attempted criminal threats against D.W., consecutive 25 years to life
plus a 16-month term for personal use of a firearm (§ 12022.5, subd. (a)); and
       Count Eleven - Unlawful possession of ammunition, consecutive 25 years to life.
       The total aggregate term imposed was 175 years to life plus a determinate term of
11 years four months.
                                      DISCUSSION
                                 I. Wheeler/Batson Claim
       Defendant contends the judgment must be reversed due Wheeler/Batson error. We
disagree.
                                      A. Background
       Defendant is African-American. The record indicates the venire included four
prospective jurors who are African-American. Based on the number of jury
questionnaires in the record, there were a total of 64 prospective jurors in the venire.
During voir dire, the prosecutor used a peremptory challenge to excuse an African-
American woman, Ms. A. The jury, as ultimately sworn, contained one African-
American juror.
       On March 9, 2010, before the jury was sworn, defense counsel stated on the record
that he had not immediately objected to the peremptory challenge of Ms. A. but, before
the next peremptory challenge, he had asked to approach, at which time, the court and
counsel had gone into chambers. At that time, defense counsel had asked to set forth a
prima facie case for a Wheeler/Batson motion, but the trial court had stated it was too late

                                             10
because the prospective juror was probably already gone and was no longer available,
and defense counsel could make his record later.9
      After the jury was sworn, defense counsel stated on the record that he was now
moving for a mistrial, “because there is nothing we can do about it now, because the jury
has been sworn.” Defense counsel said that when Ms. A. was dismissed, there was only
one other African-American in the box (who became a sworn juror) and no African-
Americans in the audience. He had excused for cause one prospective African-American
juror. The prosecutor had used a peremptory challenge on one other prospective African-
American juror, Mr. C.10 In defense counsel’s opinion, the prosecution should have
wanted Ms. A. as a juror, because she was a victim of domestic violence in the 1980’s,
and in defense counsel’s opinion (“it was my own perception”), Ms. A.’s body language
suggested displeasure when she described her daughter’s decision not to pursue
prosecution when the daughter was sexually assaulted.


9  On appeal, the People agree with defendant that it was not too late for a
Wheeler/Batson motion, because the jury had not yet been impaneled at that point.
(People v. Roldan (2005) 35 Cal.4th 646, 700-702, disapproved on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin); People v. McDermott
(2002) 28 Cal.4th 946, 969-970.) Also, we note that the “usual remedy” for a
Wheeler/Batson violation is not seating the improperly challenged juror, but rather
declaring a mistrial, dismissing the remaining panel and starting jury selection anew.
Alternative remedies, such as seating the improperly excused juror or additional
challenges for the moving party, may be provided upon the moving party’s consent or
waiver of the “usual remedy.” (People v. Mata (2013) 57 Cal.4th 178, 181; People v.
Willis (2002) 27 Cal.4th 811, 821, 823-824.) Consequently, the fact that an improperly
excused juror is no longer available does not preclude a Wheeler/Batson violation
finding.
10 Defendant repeatedly emphasizes that the prosecutor peremptorily challenged two of
the four available African-American jurors. However, defense counsel did not complain
about the prosecutor’s peremptory challenge of Mr. C. “The failure to articulate clearly a
Wheeler/Batson objection forfeits the issue for appeal.” (People v. Lewis (2008)
43 Cal.4th 415, 481 (Lewis).) Consequently, we reject defendant’s attempt to use the
excusal of Mr. C. to bolster his showing on appeal.

                                           11
       The trial court stated the defense had not made a prima facie case. The court
nevertheless invited the prosecutor to respond.
       The prosecutor noted he himself is African-American11 and offered his reasons for
excusing Ms. A.: “[S]he explained that she had a domestic violence [previously]. I don’t
think that’s something that a prosecutor necessarily wants to have on a domestic violence
case, especially in light [of] the fact that she did not notify law enforcement. [¶] I asked
her if she continued a relationship with that individual afterwards. She was unclear about
it. Additionally, it didn’t appear that law enforcement was called when her daughter was
raped or sexually assaulted. [¶] I had an issue with that because it appeared that she
didn’t call law enforcement when these terrible things happened to her. I didn’t know if
that meant she had an issue with law enforcement or if she didn’t think that what
happened was important enough. [¶] Furthermore, your Honor, she stated that her son
had a recent assault where he was prosecuted, and that occurred fairly recently. [¶] So I
think in light of the numerous issues with her family and herself, we were more than
justified to excuse her.”
       The trial court denied the mistrial motion, stating regarding the prosecutor’s
characterization of Ms. A.’s voir dire, “that’s what I recall, which made sense to me as to




11 We note that this circumstance is not relevant to the determination of whether the
prosecutor excused Ms. A based on group bias. What would have been relevant is the
race of the victims and witnesses in the case. When the victims and/or prosecution
witnesses are members of the cognizable group, this circumstance cuts against a finding
of group bias because there is less motive for the prosecutor to discriminate against
prospective jurors who are members of the same group. (Hernandez v. New York (1991)
500 U.S. 352, 369-370 [114 L.Ed.2d 395]; People v. Cleveland (2004) 32 Cal.4th 704,
734; People v. Reynoso (2003) 31 Cal.4th 903, 926, fn. 7; People v. Perez (1996)
48 Cal.App.4th 1310, 1315; People v. Ortega (1984) 156 Cal.App.3d 63, 70-71.)
However, the record here does not reflect that the prosecutor informed the court of the
race of the victims during the Wheeler/Batson motion and we are unable to determine
their race otherwise.

                                             12
why she was excluded. [¶] There’s no basis upon which I can grant the motion. [¶] It’s
denied.”
                                         B. Analysis
       Under Wheeler and Batson, the use of peremptory challenges to remove
prospective jurors because of race is prohibited. “[T]hree steps . . . guide trial courts’
constitutional review of peremptory strikes. . . . First, the defendant must make out a
prima facie case ‘by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made
out a prima facie case, the ‘burden shifts to the State to explain adequately the racial
exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.]
Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . .
whether the opponent of the strike has proved purposeful racial discrimination.’
[Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129], fn.
omitted (Johnson), citing Batson, supra, 476 U.S. at pp. 93-94.) The defendant
ultimately carries the burden of persuasion to prove the existence of purposeful
discrimination. (Johnson, supra, 545 U.S. at pp. 170-171.)
       Johnson disapproved California’s standard of requiring a defendant at step one to
show that it is “ ‘more likely than not’ ” that the peremptory challenges, if unexplained,
were based on impermissible group bias. (Johnson, supra, 545 U.S. at pp. 168, 170,
173.) Johnson held instead that a defendant satisfies the first step “by producing
evidence sufficient to permit the trial judge to draw an inference that discrimination has
occurred.” (Id. at p. 170.) If “it is unclear whether the trial court used the disapproved
‘strong likelihood’ standard, . . . ‘we review the record independently to determine
whether the record supports an inference that the prosecutor excused a juror on a
prohibited discriminatory basis.’ ” (People v. Davis (2009) 46 Cal.4th 539, 583; see id. at
p. 582.) However, where, as here, the trial court states the defendant failed to make a
prima facie case, but the court nevertheless considers reasons offered by the prosecutor

                                              13
and concludes there was no discrimination, the issue of whether the defendant has
established a prima facie case becomes moot. (People v. Mills (2010) 48 Cal.4th 158,
174-175.) Where there is ambiguity as to whether the trial court denied the motion based
on the absence of a prima facie case or a finding that the prosecutor’s reasons were
credible and reasonable, we will assume for the sake of argument that the trial court
implicitly found a prima facie case but accepted the prosecutor’s reasons as race neutral.
(People v. Adanandus (2007) 157 Cal.App.4th 496, 505 (Adanandus).)
       On appeal, we review the trial court’s acceptance of the prosecutor’s race-neutral
reasons under the substantial evidence standard of review, “giving deference to the trial
court’s sincere and reasoned efforts to evaluate the prosecutor’s reasons.” (People v.
Riccardi (2012) 54 Cal.4th 758, 787 [“ ‘ “evaluation of the prosecutor’s state of mind
based on demeanor and credibility lies ‘peculiarly within a trial judge’s province’ ” ’ ”];
People v. Semien (2008) 162 Cal.App.4th 701, 708.) Here, although there were
discrepancies between the prosecutor’s recollection of what Ms. A. had said on voir dire
and what she actually said, the record as a whole supports the prosecutor’s race-neutral
explanation for excusing her.
       In her juror questionnaire, Ms. A. answered “Yes Rape” to the question whether
she, a close friend or relative had ever been a victim of a crime, and she answered “Yes
Assault” to the question whether she, a close friend or relative had ever been arrested for
a crime. During voir dire, Ms. A. said she had had no negative experiences with law
enforcement. When asked if she believed law enforcement should be involved in
domestic violence or stay out of it, she said, “No, I don’t think it should just be a family
issue. [¶] . . . [¶] . . . I was a victim of domestic violence. I didn’t pursue any legal
action. I was blessed and fortunate that my family got me out of that situation. But I
definitely -- looking back, you know, in hindsight, I definitely would have taken legal --
gone the legal route, because it was like so fearful. I was so fearful at that point.” When
asked if she regretted that she did not contact law enforcement, she said, “Yeah, I am

                                              14
[sic].” The domestic violence involving Ms. A. occurred in the early 1980’s. She did not
contact law enforcement because “given the day and the time, it wasn’t as if there’s the
resources that are available today. And I was very fearful. And so, you know, with the
resources that I’m aware of today, it would be a different situation.” When asked if she
stayed in the relationship after the domestic violence, she said, “Well, I was in a
relationship for like three years; and I eventually just -- you know, like I said, with the
help of my family and friends, just they just took me away.”
       Ms. A. additionally said her daughter was a victim, apparently of a domestic
violence sexual assault, in 1993, and the police were called, but the person was not
prosecuted because her daughter did not want to go forward with the case. Around 1990,
Ms. A.’s son was prosecuted for a misdemeanor assault when he had had too much to
drink after graduation and got into a fight with a friend. It was resolved before trial. She
thought her son was treated fairly.
       A prosecutor’s explanation need not rise to the level of a challenge for cause.
(Batson, supra, 476 U.S. at p. 97; People v. Gutierrez (2002) 28 Cal.4th 1083, 1122
(Gutierrez).) A juror may be excused even on a hunch (Gutierrez, supra, 28 Cal.4th at
p. 1122), and even a trivial reason, if genuine and group neutral, will suffice (People v.
Arias (1996) 13 Cal.4th 92, 136).
       Defendant is correct that the prosecutor was wrong when he said Ms. A.’s son’s
assault prosecution was “recent,” because it happened 20 years earlier. Nevertheless, this
inaccuracy does not prove the exclusion discriminatory. (People v. Jones (2011)
51 Cal.4th 346, 358, 366.) In Jones, the prospective juror wrote on the juror
questionnaire that his son had been accused of a crime but the prospective juror did not
disclose the crime. (Jones, supra, at pp. 358, 366.) In explaining his peremptory
challenge, the prosecutor mistakenly said “ ‘I think it was attempt[ed] murder or
murder.’ ” (Id. at p. 358.) The Jones court upheld denial of the defendant’s
Wheeler/Batson motion, noting that there was no reason to assume the prosecutor

                                              15
intentionally misstated the matter, and an honest mistake by a prosecutor does not compel
the conclusion that the prosecutor’s reason for exclusion was insincere. (Id. at p. 366.)
Plus, the fact that the prospective juror’s son had been accused of a crime would in itself
constitute a race-neutral reason for the peremptory challenge. (Ibid.)
       Here, even if it was not recent, it is well settled that the son’s assault prosecution
would still have been a valid, group-neutral reason for exercising a peremptory challenge
as to Ms. A. (Wheeler, supra, 22 Cal.3d at p. 277, fn. 18; Adanandus, supra,
157 Cal.App.4th at pp. 504, 508-509 [son of prospective juror had been convicted of drug
offense seven years earlier].)
       Moreover, in the instant case, Ms. A.’s son’s prosecution was one small point in
the prosecutor’s list of reasons for the challenge.
       The prosecutor’s first reason was reluctance to have a domestic violence victim
serve as a juror in a domestic violence case, particularly where the victim did not call law
enforcement. Despite the discrepancies in the prosecutor’s recollection of what Ms. A
said on voir dire, this is a group-neutral reason. It is irrelevant that defense counsel
claimed he would embrace such a juror were he the prosecutor. The sincerity of the
prosecutor’s desire to not have jurors with such backgrounds is demonstrated by the fact
that the prosecutor also used a peremptory challenge against another prospective juror,
Ms. C., who had been a victim of domestic violence in the early 1990’s. Ms. C. did not
call police because it did not seem necessary. The incident happened as she was moving
out of a home after a relationship ended. But now, she does think it appropriate for law
enforcement to be involved in domestic violence matters. The record does not disclose
her race. Defendant does not contend she was African-American. Thus, the record
supports the sincerity of the prosecutor’s explanation.
       Defendant argues Ms. C. cannot be compared to Ms. A., because Ms. C. never
said she regretted her decision not to call the police (it was an isolated incident), whereas
Ms. A. was the victim of continuous abuse, expressed regret that she did not call the

                                              16
police, and apparently stayed in the relationship for some time. Defendant cites People v.
Lenix (2008) 44 Cal.4th 602, 630-631 in arguing that given the differences between the
two potential jurors, comparative juror analysis does not refute his claim that the
prosecution’s challenge of Ms. A. was discriminatory. However, it is defendant’s burden
to show purposeful discrimination. (Johnson, supra, 545 U.S. at pp. 170-171; Lenix,
supra, 44 Cal.4th at pp. 612-613.) The differences noted by defendant are not so
significant as to require the trial court to doubt the prosecutor’s credibility. Both
prospective jurors were victims of domestic violence who had not reported their abuser to
the police, and the court was justified in accepting the prosecutor’s explanation that he
did not want people with that background on the jury.
       Additionally, the record supports the prosecutor’s uncertainty about Ms. A. She
was unclear in her response to his question whether she continued the relationship with
her abuser. Furthermore, the prosecutor was not required to accept Ms. A.’s expression
of a current opinion that government should be involved in such family disputes, which
was inconsistent with her past actions. This is not to say that Ms. A. was deceptive. It
would be perfectly normal for her attitude to have changed over time in the years since
she was a victim. The point is that a prosecutor is not required to gamble on a
prospective juror about whom he has reservations. The prosecutor may act on a hunch.
(Gutierrez, supra, 28 Cal.4th at p. 1122.) The record does not support defendant’s claim
that the prosecutor’s reservations were pretexts for race discrimination.
       We also observe that an African-American person served on the jury. While the
circumstance that a prosecutor accepted a panel containing members of the cognizable
group is not conclusive, it is an indication of the prosecutor’s good faith in exercising
peremptory challenges. (People v. Snow (1987) 44 Cal.3d 216, 225.)
       Although the trial court did not make an express finding on the prosecutor’s
credibility, the trial court implicitly so found by stating the prosecutor’s characterization



                                              17
of Ms. A.’s voir dire was consistent with the court’s observation and “made sense” as
reason for exclusion. (Lewis, supra, 43 Cal.4th at p. 471.)
       We conclude there is no reversible Wheeler/Batson error.
                          II. Third Party Culpability Evidence
       Defendant argues the trial court erroneously excluded defense evidence of third
party culpability. We disagree.
                                     A. Background
       Defense counsel sought to introduce evidence that Griffin previously had been
convicted of a federal offense of smuggling drugs into prison and that McFadzean forced
her to smuggle narcotics into prison to an inmate named Johnny Jingles. The defense
theory was that some unknown person shot McFadzean during a drug transaction gone
bad, and McFadzean forced Griffin on the spot to help him frame defendant to eliminate
defendant as McFadzean’s romantic rival for Griffin’s affections. The defense argued the
evidence was admissible to prove Griffin’s motive falsely to identify defendant as the
perpetrator under Evidence Code section 1101.12
       The trial court ruled that all prior convictions for crimes of moral turpitude would
be admissible for impeachment, but said the defense theory of third party culpability was
undeveloped. When the issue resurfaced later, the court asked how the proposed
evidence would counter the expected testimony of Richardson and Morris. Defense
counsel said he had “privileged information,” which he would disclose only in camera.




12 Evidence Code section 1101, subdivision (a) makes character evidence generally
inadmissible to prove conduct, but subdivision (b) states, “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his
or her disposition to commit such an act.”

                                             18
       Defense counsel then presented a sealed declaration, stating that defendant had
provided counsel with information that Griffin and her family feared McFadzean and
were coerced into participating in his drug-trafficking operation. Defendant told counsel
that during a conversation he had had with Griffin after the shooting, she told defendant
McFadzean had a coat in his car trunk containing thousands of dollars in cash from
illegal drug sales, which was the real reason that Richardson wanted to protect
McFadzean’s car. Griffin removed that same coat from her own car while the police
were rendering assistance to the injured McFadzean, and this was depicted on the patrol
car video. Griffin and McFadzean were not visiting friends in Los Angeles on the day of
the shooting. Instead, they were involved in a drug transaction, during which McFadzean
got shot by an unnamed person. Griffin was driving in search of help and encountered
defendant on the street. Griffin asked defendant to help. “[Defendant] refused to assist,
infuriating all parties in the car, and adding to the bias of the witnesses against him.”
       Defense counsel indicated he intended to elicit this evidence through cross-
examination of the prosecution witnesses. Defendant told counsel he maintained an
intimate relationship with Griffin while she engaged in drug trafficking with McFadzean,
and if defendant testified, he would likely testify to impeach Griffin’s denial of drug
trafficking and coercion by McFadzean. No explanation was provided in the declaration
for the presence of the duffel bag in Griffin’s backyard that contained ammunition,
defendant’s parole card, and photographs of a sexual nature depicting Griffin and
defendant.
       Defense counsel also stated he intended to call as a witness a prison inmate,
Rosalee Barfield, who was in custody on an unrelated case. Counsel for Barfield told
defendant’s counsel Barfield would not speak with defendant’s investigator. However,
according to defendant, if Barfield testified, and if she did so truthfully, she would testify
that the coat containing thousands of dollars had been in her possession until McFadzean



                                              19
and Griffin took it from her by assaulting her with a handgun earlier on the day Morris
was shot.
        The trial court issued an order allowing the defense to impeach Griffin with two
convictions of a crime of “moral turpitude” stemming from the federal smuggling case
but excluding the other proffered evidence on the grounds that defendant failed to make a
sufficient showing of relevance and, even assuming relevance, the evidence, including
the prosecution’s response, would require undue consumption of time on collateral issues
under Evidence Code section 352. The court also noted, “counsel now indicates that
Ms. G[.], having been apprised of her statements in the defendant’s motion, now ‘recants’
such statement. This court is concerned with the defendant’s propensity to expand this
proceeding into areas well beyond the ambit of this trial.”
                                        B. Analysis
        To be admissible, evidence of third party culpability “need only be capable of
raising a reasonable doubt of defendant’s guilt.” (People v. Hall (1986) 41 Cal.3d 826,
833 (Hall).) It should be treated “like any other evidence: if relevant it is admissible
([Evid. Code, ]§ 350) unless its probative value is substantially outweighed by the risk of
undue delay, prejudice, or confusion ([Evid. Code, ]§ 352).” (Hall, supra, at p. 834.)
However, our high court has counseled, “At the same time, we do not require that any
evidence, however remote, must be admitted to show a third party’s possible
culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in another
person, without more, will not suffice to raise a reasonable doubt about a defendant’s
guilt: there must be direct or circumstantial evidence linking the third person to the
actual perpetration of the crime.” (Hall, supra, at p. 833, italics added; accord, People v.
Hamilton (2009) 45 Cal.4th 863, 914.) Since third party culpability evidence is treated
like other evidence, the trial court has broad discretion, and we review the trial court’s
decision under an abuse of discretion standard. (People v. Harris (2005) 37 Cal.4th 310,
337.)

                                             20
       Defendant argues this issue goes beyond state law error, as it was characterized in
People v. Cudjo (1993) 6 Cal.4th 585, 610-611, and constitutes federal constitutional
error by denying him his right to present a defense and have a fair trial and due process.
However, the federal Constitution does not afford defendant the right to present evidence
that is irrelevant or of only marginal relevance. (Crane v. Kentucky (1986) 476 U.S. 683,
689-690 [90 L.Ed.2d 636]; United States v. Scheffer (1998) 523 U.S. 303, 308
[140 L.Ed.2d 413] [states have broad latitude under the federal Constitution to establish
rules excluding evidence from criminal trials].)
       Defendant’s offer of proof resembles the offer of proof made in People v.
Edelbacher (1989) 47 Cal.3d 983. In that case, the defendant’s mother testified outside
the jury's presence that her daughter had worked with the victim at a fast-food outlet, and
that on the morning following the victim’s death the daughter told her that the victim had
asked the daughter several times if the daughter knew anyone who wanted to buy some
marijuana. (Edelbacher, supra, at p. 1017.) The defendant’s mother further testified that
an unidentified friend had told her that the victim’s mother had been unhappy because the
victim had been running around with some Hell’s Angel-type people. (Ibid.) The
defendant’s counsel urged the trial court to admit the testimony “ ‘to show by
circumstantial evidence the possible motive of third parties to commit the crime and
circumstantial evidence as to possible identity of third parties to commit the crime.’ ”
Defense counsel argued that “ ‘people who are dealing in narcotics frequently end up
injured or shot.’ ” (Id. at pp. 1017-1018.) The trial court sustained the prosecution’s
objection, and our high court affirmed the trial court’s ruling. (Ibid.) “Quite apart from
the obvious hearsay problems, defendant's proposed evidence did not identify a possible
suspect other than defendant or link any third person to the commission of the crime.
The evidence did not even establish an actual motive but only a possible or potential
motive for [the victim’s] murder. As we stated in Hall, supra, 41 Cal.3d 826, evidence of
a third party's motive, without more, is inadmissible. A fortiori, evidence showing only a

                                             21
third party’s possible motive is not capable of raising a reasonable doubt of a defendant's
guilt and is thus inadmissible.” (Id. at p. 1018.)
       Similarly, in People v. Samaniego (2009) 172 Cal.App.4th 1148, the court upheld
exclusion of evidence that the victim, a drug dealer, got into an argument with, and was
threatened with a knife by, a third party on the day the victim was shot and killed.
(Samaniego, supra, at pp. 1172-1173.) The eyewitness to the shooting did not identify
the third party as having been present, and another witness -- who knew the third party’s
voice and who heard the assailants -- could not identify the third party as having been one
of the assailants. (Id. at p. 1175.) The Samaniego court held the trial court properly
excluded the evidence because, although the defendant’s evidence showed the third party
had motive and opportunity, there was no evidence he was involved in any way with the
murder. (Ibid.)
       Here, the defense did not make an offer of proof as to who would testify about the
supposed drug transaction at the time of McFadzean’s shooting or the supposed third
party shooting of McFadzean. The defense merely said that, if defendant testified, he
would impeach Griffin should she “deny the allegations of drug trafficking and coercion
by Mark McFadzean.” But drug trafficking and coercion were collateral matters which
the trial court correctly noted would consume time unnecessarily. The coat with drug
money was also collateral. Furthermore, the supposed testimony of prison inmate
Rosalee Barfield, assuming she did not invoke her Fifth Amendment right against self-
incrimination and assuming she testified as defendant hoped, would not speak to the
shooting.
       Not only did the defense fail to provide direct or circumstantial evidence linking
the purported unknown third party drug dealer to the shooting of McFadzean, but the
defense theory of this phantom shooter was farfetched and incapable of raising a
reasonable doubt. According to this theory, the shooting occurred during a drug
transaction unrelated to defendant, a drug transaction to which Griffin brought her

                                             22
teenage daughter. After the shooting, Griffin happened to drive by defendant as she was
driving around with the unconscious McFadzean, who had a shattered artery that was
gushing blood. Although McFadzean was dying, after a chance encounter with
defendant, he developed a plan on the fly to blame defendant for the shooting so
defendant would no longer be in Griffin’s life and coerced Griffin and her daughter to
participate in this conspiracy to frame defendant. All of this occurred between the earlier
events of the day where defendant waved a gun and expressed anger about Griffin’s
relationship with McFadzean and the later discovery by police of defendant’s duffel bag
containing additional rounds of ammunition in back of the home where defendant lay in
wait for Griffin to return home with McFadzean -- a circumstance that was not mentioned
in defendant’s offer of proof.
       Defendant points out that no witness, other than Griffin and McFadzean, testified
that defendant shot McFadzean. This is true, but as we have noted, other witnesses did
testify that hours before shooting McFadzean, defendant was at Griffin’s house, armed
with a gun and furious about Griffin’s relationship with McFadzean. And defendant’s
own witness, his niece, placed him outside her residence with Griffin and McFadzean
shortly before a police officer saw McFadzean in Griffin’s maroon car bleeding from a
gunshot wound. The officer testified Griffin waved him down around 1:20 a.m. on
March 3, 2008. Defendant’s niece testified for the defense that during the “early morning
hours” of March 3, 2008, she saw defendant arguing in the street with Griffin near a
burgundy car, which she had seen both defendant and Griffin driving in the past.
Griffin’s teenage daughter was also there. According to the niece, either defendant or
Griffin knocked on her door. This is obviously inconsistent with defendant’s offer of
proof, presented in his attorney’s declaration, that defendant refused to get involved when
Griffin drove by searching for help for the wounded McFadzean and saw defendant on
the street. That the niece denied hearing a gunshot is inconsequential.



                                            23
       The proffered evidence simply was not capable of raising a reasonable doubt of
defendant’s guilt. Further, there was no evidence the unknown third party drug dealer
even existed, and if he did, whether he had an opportunity to commit the shooting; nor
was there direct or circumstantial evidence linking this unknown person to the shooting.
       Even assuming for the sake of argument that the evidence existed and had any
relevance, it would clearly require undue consumption of time, and the trial court did not
abuse its discretion by its ruling in this regard. Moreover, the evidence depended entirely
on multiple hearsay that had been denied by the declarant, Griffin, denials defendant
would try to impeach if he later decided to testify.
       The trial court did not err in excluding evidence, and we therefore need not
address defendant’s argument about prejudice.
       We conclude defendant fails to show grounds for reversal based on exclusion of
third party evidence.
                        III. Sanitizing Victims’ Prior Convictions
       Defendant argues his trial counsel was ineffective in failing to object to the trial
court’s sanitizing the complaining witnesses’ prior convictions for impeachment. We see
no grounds for reversal.
       The defense moved in limine to impeach Griffin and McFadzean with prior
convictions, as follows: (1) As to Griffin -- 1997, solicitation of lewd act; 2006, federal
conviction of conspiracy to provide an inmate with a prohibited object, possession of
heroin with intent to distribute, and possession of marijuana with intent to distribute. (2)
As to McFadzean -- 1990, aid/abet unlawful entry; 1992, theft, sexual assault, and fraud;
1993, battery and robbery; 1995, trespass to vehicle and cocaine possession; 1996, sexual
assault and possession of stolen car; 1997, possession of stolen car; 1998, possession of
stolen car; and 1999, armed robbery and bank robbery.
       The trial court also ruled that defendant’s prior convictions would be admitted if
he testified, but as requested by the defense, the convictions would be sanitized by calling

                                             24
them crimes of moral turpitude.13 As for the prosecution witnesses, the prosecution
asked that the court sanitize their prior convictions just as it had done for defendant, and
the trial court granted that request. Ultimately, four witnesses -- two prosecution
witnesses (Griffin and McFadzean) and two defense witnesses (defendant’s niece and
brother) -- admitted prior convictions or adjudication involving “moral turpitude.”
         On appeal, defendant argues ineffective assistance of counsel in his trial counsel’s
failure to object to sanitizing the prosecution witness convictions. To establish
ineffective assistance of counsel, a defendant must show (1) counsel’s performance was
below an objective standard of reasonableness under prevailing professional norms, and
(2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984)
466 U.S. 668, 691-692 [80 L.Ed.2d 674] (Strickland); People v. Ledesma (1987)
43 Cal.3d 171, 216-217 (Ledesma).) “ ‘Surmounting Strickland’s high bar is never an
easy task.’ ” (Harrington v. Richter (2011)          U.S.   ,   [178 L.Ed.2d 624, 642
(Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284].)
         The reason why Strickland’s bar is high is because “ ‘[a]n ineffective-assistance
claim can function as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with scrupulous care,
lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve. [Citation.] . . . It is ‘all too tempting’ to ‘second-guess
counsel’s assistance after conviction or adverse sentence.’ [Citations.] The question is
whether an attorney’s representation amounted to incompetence under ‘prevailing
professional norms,’ not whether it deviated from best practices or most common custom.
[Citation.]” (Richter, supra,     U.S. at pp.   ,     [178 L.Ed.2d at pp. 642-643].)




13   Ultimately, defendant did not testify.

                                                25
       “In evaluating a defendant’s claim of deficient performance by counsel, there is a
‘strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance’ [citation], and we accord great deference to counsel’s tactical
decisions.” (People v. Frye (1998) 18 Cal.4th 894, 979 (Frye), disapproved on other
grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “If the record does not shed light
on why counsel acted or failed to act in the challenged manner, we must reject the claim
on appeal unless counsel was asked for and failed to provide a satisfactory explanation,
or there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th
1188, 1212.)
       Defendant argues there can be no plausible rational tactical purpose for defense
counsel’s failure to object to sanitizing prosecution witnesses’ prior convictions.
However, defendant’s own witnesses had prior records which defense counsel may have
preferred not to name, including defendant himself if he chose to testify. Thus, defendant
fails to show deficient performance.
       Furthermore, defendant has not shown prejudice. To establish prejudice, “It is not
enough ‘to show that the errors had some conceivable effect on the outcome of the
proceeding.’ ” (Richter, supra,     U.S. at p.    [178 L.Ed.2d at p. 642].) To show
prejudice, defendant must show a reasonable probability that he would have received a
more favorable result had counsel’s performance not been deficient. (Strickland, supra,
466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
(Strickland, supra, 466 U.S. at p. 694; accord, Ledesma, supra, 43 Cal.3d at p. 218.)
       During deliberations, the jury asked for a definition of moral turpitude. Without
objection, the trial court told the jury “[m]oral turpitude means a readiness to do evil. It
involves conduct that is contrary to justice, honesty, or morality.” The evidence against
defendant was compelling. And since the jury was effectively told that the two witnesses
who presented this evidence had been convicted of crimes that showed their readiness to

                                             26
do evil, dishonesty and immorality, it is not reasonably probable defendant would have
obtained a better result had the prior convictions not been sanitized as crimes of moral
turpitude. Defendant has not overcome Strickland’s high bar.
       Defendant contends that the evidence against him was not strong and repeatedly
cites the fact that the jurors made no findings on several firearm use allegations and a
great bodily injury allegation as indicating the jury struggled with the case. However, the
jury did not indicate it was deadlocked on these allegations and nothing else in the record
suggests the jury had difficulty arriving at a decision on these findings. Based on the
format of the verdict forms, it may very well be that the failure to return findings on these
allegations was the product of a misunderstanding about how to fill out the forms.14
Indeed, we note that despite the jury not returning firearm use findings on some of the


14 The jury left blank the true/not true lines for the firearm allegations as to count two
(kidnapping - Morris), count three (criminal threats - Morris), count six (kidnapping -
McFadzean), count eight (criminal threats - McFadzean), and count nine (criminal threats
- Griffin) and the great bodily injury allegation on count six (kidnapping - McFadzean).
We note that the record does not show that the trial court explained how to fill out the
verdict forms, so the jury apparently had to figure that out on its own. On each of the
forms where the jury provided no finding, the finding language followed the lesser
included offenses, which the jury did not reach because of its guilty verdict on the
charged offense. In contrast, on the forms where the allegation finding language
followed immediately after the charged offense, the jury checked off the true finding.
The one exception is where the jury returned a verdict of guilty on the lesser included
offense in count ten. On that form, the jury indicated a true finding as to the firearm use
allegation, which immediately followed the lesser included offense.

  When the trial court received the executed verdict forms from the jury, it indicated it
was checking to make sure the forms were dated and signed. The verdicts were then read
by the clerk. Thereafter, without rereading the verdicts and findings, the trial court polled
the jury. There is nothing in the record indicating that the trial court noticed there were
no findings as to the aforementioned counts. Based on comments made by the court at
sentencing, it appears that the failure to make findings on the aforementioned allegations
was not discovered until after the trial, when the prosecutor expressed some concern
about this circumstance in e-mails exchanged between the court and counsel (which are
not part of the record).

                                             27
counts related to Morris and McFadzean, it nevertheless did find true the firearm
allegations as to Morris and McFadzean on one count related to those victims.15 And
despite the fact the jury did not make a finding on the great bodily injury allegation on a
count related to McFadzean, the jury nevertheless made that finding on another count
related to the same episode.16
       Under the heading complaining about “sanitizing” the prior convictions of
prosecution witnesses, defendant attempts to raise a different issue, stating Griffin and
McFadzean had more convictions than the jury was told. We need not address points not
adequately briefed under a separate heading. (People v. Turner (1994) 8 Cal.4th 137,
214, fn. 19.)
       We conclude defendant fails to show grounds for reversal based on defense
counsel’s failure to object to sanitization of prior convictions.
                        IV. Claims of Prosecutorial Misconduct
       Defendant argues the judgment must be reversed to remedy purportedly
prejudicial prosecutorial misconduct. We disagree.
       “The standards governing review of misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the jury commits misconduct,
and such actions require reversal under the federal Constitution when they infect the trial
with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ”
[Citations.] Under state law, a prosecutor who uses such methods commits misconduct
even when those actions do not result in a fundamentally unfair trial. [Citation.] In order
to preserve a claim of misconduct, a defendant must make a timely objection and request



15The jury found the personal use of a firearm allegations true as to count one (assault
with a firearm - Morris) and count five (assault with a firearm - McFadzean).
16 The jury found the great bodily injury allegation true on count five (assault with a
firearm - McFadzean).

                                              28
an admonition; only if an admonition would not have cured the harm is the claim of
misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008)
44 Cal.4th 332, 359 (Parson).)
       Moreover, “the prosecutor has a wide-ranging right to discuss the case in closing
argument. He has the right to fully state his views as to what the evidence shows and to
urge whatever conclusions he deems proper.” (People v. Lewis (1990) 50 Cal.3d 262,
283.) To prevail on a claim of prosecutorial misconduct in argument to the jury, the
defendant must show a reasonable likelihood that the jury understood or applied the
prosecutor’s comments in an improper or erroneous manner. (Frye, supra, 18 Cal.4th at
p. 970.)
           A. Argument Regarding Disbelieving the Prosecution Witnesses
       Defendant claims the prosecutor misstated the prosecution’s burden of proof and
the reasonable doubt standard by improperly arguing that acquittal would require
wholesale rejection of the testimony of all of the prosecution witnesses. We disagree.
       We first dispose of defendant’s claim that the standard of proof beyond a
reasonable doubt requires only residual doubt to acquit. For this proposition, defendant
cites only federal circuit court of appeals decisions, applying case law holding that jurors
should not be instructed that they need to be able to articulate good and sufficient reasons
for their doubts about guilt. (Humphrey v. Cain (5th Cir. 1997) 120 F.3d 526, 530-531;
Dunn v. Perrin (1st Cir. 1978) 570 F.2d 21, 23-24.) Defendant also cites a subsequent
opinion in Humphrey v. Cain (5th Cir. 1998) 138 F.3d 552, which merely confirmed the
appellate court’s earlier opinion while resolving conflicting panel decisions as to whether
the stated rule was available to a habeas corpus petitioner whose conviction was final
when the rule was announced. The Dunn court said nothing about “residual doubt,” and
the first Humphrey case merely commented without explanation, “Insisting that a juror be
able to articulate a reason is a troublesome step upon residual doubt.” (Humphrey, supra,
120 F.3d at p. 531.)

                                             29
       The term “residual doubt” is generally used in the inapposite context of the
penalty phase of a death penalty case, which allows jurors to consider residual doubt
about guilt when deciding whether to impose the death penalty, though the defendant is
not entitled to a jury instruction on residual doubt. (Oregon v. Guzek (2006) 546 U.S.
517, 525-526 [163 L.Ed.2d 1112]; Franklin v. Lynaugh (1988) 487 U.S. 164
[101 L.Ed.2d 155] [plurality doubted whether Eighth Amendment gave defendant a right
to instruction that jury could consider residual doubts about guilt as mitigating
circumstances in penalty phase; even if defendant had some right to seek jury
consideration of residual doubt about guilt in penalty phase, rejection of instruction did
not impair his right to argue the matter to the jury]; People v. Linton (2013) 56 Cal.4th
1146, 1198; People v. Huggins (2006) 38 Cal.4th 175, 251.)
       This is not a death penalty case, and we accordingly disregard defendant’s point
about residual doubt. Additionally, as will appear, the prosecutor did not improperly
argue to the jurors that they must be able to articulate a good and sufficient reason for
having reasonable doubt.
       The prosecutor argued:
       “So what is this case about? It’s about every witness who testified. In order to
find this defendant not guilty, you have to say that Mikio Morris is a liar. You have to
say, I don’t believe anything that Mikio said. He completely lied about this defendant
putting a gun to my head.
       “In order to find this defendant not guilty, you have to say, Vivian Richardson,
who is a business owner, she lied. This woman that’s known him since he was eight
years old, she lied. She lied to the officer that day. You saw her talking to Officer Hall
on the videotape that night. You can look at the videotape. Vivian is here. She lied to
him. She came in here and lied, I mean, because she could have said, I was afraid of
[defendant], right? He could be charged with criminal threats, but she was honest.



                                             30
She took her oath seriously. She said he did threaten me, but I wasn’t afraid. You have
to say she’s a liar. I don’t believe her.
       “Dominique Griffin, the mother of her [sic] child, she lied. In order to find him
not guilty, you have to say, she’s a liar. Now, you saw Dominique cry. That’s the reason
we have jury trials because you get to see these people. She cried on the stand. And
when I asked her, I said, ‘Dominique, do you still love [defendant]?’
       “What did she tell you? She said, ‘I love him. He’s the father of my child. I’m
just disappointed that he did what he did.’ You got to say she lied. Dominique is a liar, I
don’t believe anything that she says.
       “Mark McFadzean, the person that got shot. He’s a liar, too. And -- and I don’t
know if you noticed it, ladies and gentlemen, but Mark wanted to tell his story. I mean,
every time he was asked, he wanted to move, he had his arm like this, he was doing like
this, he -- he clearly remembers what happened to him.
       “And he was trying every way he could to explain it to you. You would have to
say he’s a liar. Mark made that all up. He lied. That’s what you have to say to find this
defendant not guilty.
       “Officer Hall, the officer that you see on the videotape. The officer that was
trying to save Mark McFadzean’s life, he lied. When he said that Dominique and [D.W.]
were freaked out, that they were crying, that they were upset immediately after Mark got
shot, you have to say Officer Hall’s lying, he doesn’t know what he’s talking about.
       “You have to say Officer McGovern, one of the officers with this duffel bag
[containing defendant’s parole card], who get back there [in Griffin’s yard] and said, this
bag was dry, but there’s morning dew. That officer lied. You can’t believe Officer
McGovern.
       “Officer Kinion, the one who said, ‘Hey, when I opened this bag, the first thing I
saw is this parole card.’ Officer Kinion is a liar. He doesn’t -- I don’t believe him.
That’s what you have to do to find the defendant not guilty.

                                             31
       “Detective Heinlein, you have to say the detective that got on the case, who was
trying to find this defendant who said, ‘I wasn’t by all of his houses [sic], all these houses
looking for him, that Dominique was helping me out with the investigation, that her
family was trying to find this man.’ Detective Heinlein, he’s a liar. I don’t believe that.
       “[McFadzean’s] doctors . . . , you have to say all those doctors, they lie.
       “No. Mark looks okay. He looks like he walks fine to me. So I find him not
guilty. That’s what you have to say, ladies and gentlemen.
       “[A.B.], the defense witness that turned into the star prosecution witness. You got
to say she’s a liar, too. Even though I heard her on tape telling the detective it was four
people there, Dominique was holding [defendant’s] hand I wonder what was in it, and I
was so traumatized that I ran barefoot to my cousin’s house to see what was going on.
[A.B.], she’s a liar. I don’t believe her either.
       “All these people, ladies and gentlemen, you have to say I don’t believe all of
these people to find [defendant] not guilty.”
       Defendant did not object in the trial court to these comments. Thus, he forfeited
his current claim of prosecutorial misconduct. (Parson, supra, 44 Cal.4th at p. 359.)
       Moreover, we are confident the jury would understand the prosecutor’s remarks,
not as reducing the burden of proof, but as legitimate comment on the prosecutor’s
perception of the strength of the prosecution’s case. (Frye, supra, 18 Cal.4th at p. 972
[prosecutor’s comment that prosecution witness was telling the truth was not improper
vouching but simply a call to reflect on all the evidence presented at trial].)
                      B. Argument Regarding D.W. not Testifying
       Defendant argues the prosecutor committed prejudicial misconduct by telling the
jurors D.W. was too traumatized to testify and by telling the jurors what D.W.’s
testimony would have been had she testified. We disagree.
       Defense counsel in closing argument to the jury noted that percipient witness
D.W. did not testify. Defense counsel suggested that her absence was akin to a

                                              32
prosecution of Lee Harvey Oswald for the killing of John F. Kennedy, where the
prosecution relied solely on the testimony of “mobster Jack Ruby [who killed Oswald]”
and not “people who weren’t in the mob. They didn’t call the people who didn’t have a
horse in the race. You might be dissatisfied.”
         In rebuttal, the prosecutor said:
         “[D.W.], the defense says, Well, where is [D.W.]? That means -- well, I guess we
must find him not guilty because we didn’t hear from [D.W.]. So I guess they have
something to hide. Let’s speculate as to why she wasn’t here. We already know. All
their interviews were recorded. If [D.W.] said something drastically different from
everyone else, you don’t think [defense counsel] would have called her? I mean, this girl
was 15 years old.
         “Look at that tape. See how she acted. Did she need to be traumatized again?
Does she have to relive this again? Dominique made it clear. She said [D.W.] does not
even want to talk about this. [D.W.] doesn’t want to think about it. But I guess
according to [defense counsel], she needed to be traumatized again in order for you to
find [defendant] guilty.
         “I mean, we all know in sex assault cases and that’s not this, it happens that
witnesses don’t want to testify for all kind of reasons. We all know that. It doesn’t mean
that they’re lying. Just do we have to keep traumatizing people, a 15-year-old girl.
[¶] . . . [¶]
         “I mean, is that necessary, ladies and gentlemen? Is that what you need? Is the
videotape enough? You clearly see that she’s there. You clearly see her crying and
upset. What else do you need?” (Italics added.)
         Again, defendant forfeited his claim by failing to object to these comments in the
trial court. (Parson, supra, 44 Cal.4th at p. 359.)
         Moreover, the prosecutor’s comments were proper rebuttal to defense counsel’s
comment on D.W.’s absence as a witness. (People v. Daya (1994) 29 Cal.App.4th 697,

                                               33
715 [prosecutor may be justified in making comments in rebuttal, perhaps otherwise
improper, which respond to defense counsel’s arguments and are based on the record].)
Here, the prosecutor’s remarks were based on the record because the jury had the
opportunity to see D.W.’s state of emotional upset in the police video of the patrol officer
helping McFadzean.
       Defendant contends that the prosecutor told the jury D.W.’s testimony would have
corroborated Griffin, but does not cite a specific comment made by the prosecutor in
support of this contention. It appears defendant is asserting the prosecutor suggested
D.W.’s testimony would have been consistent with Griffin’s when he told the jury, “If
[D.W.] said something drastically different from everyone else, you don’t think [defense
counsel] would have called her?” (Italics added.) We view this argument differently. It
is well settled that a prosecutor can comment on a defendant’s failure to call logical
witnesses. (People v. Gonzales (2012) 54 Cal.4th 1234, 1275; People v. Castaneda
(2011) 51 Cal.4th 1292, 1333; People v. Cornwell (2005) 37 Cal.4th 50, 90, disapproved
on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) That is what happened
here. In response to the defense argument about the prosecution not calling D.W., the
prosecutor merely commented on defendant’s failure to call her as well.
               C. Comments Regarding Defendant not Going to the Police
       Defendant complains the prosecutor in rebuttal argument commented on
defendant’s exercise of his right not to discuss the case with the police after suspicion
focused on him.
       The prosecutor said: “And if you believe the defense that there was some mystery
man that did this, that it wasn’t [defendant], well, we all know from Dominique, this was
on the news.
       “And she said [defendant] called her about the fact when he saw himself on
the news. If it wasn’t him and he sees that he’s accused of all these crimes, why didn’t
he say, Hey, I’m gonna go to the police office and see what’s going on with this?

                                             34
Why didn’t he say, Hey, officer, I saw myself on the news, I wasn’t there, I was -- I was
here. I got -- I got all these alibi witnesses. Why didn’t he do that since it wasn’t him?
       “Because a guilty person would run away. A guilty person would go to Las Vegas
and hide out. A guilty person, when they’re stopped for a traffic ticket, instead of giving
their name would give their brother’s name, somebody would know that they did
something wrong.
       “So it is clear from the evidence that we got the right person. That there is no
question that we have the right person.”
       Again, defendant forfeited any claim related to this argument by failing to object
to it in the trial court. (Parson, supra, 44 Cal.4th at p. 359.)
       Moreover, defendant’s argument that the prosecutor’s remarks were an improper
comment on defendant’s exercise of his constitutional right to silence lacks merit.
       Although the obvious constitutional right at issue is the Fifth Amendment right to
remain silent, defendant frames this contention as a due process violation of a
“constitutional right not to discuss his alibi with the prosecutor or the police.” He cites
inapposite cases applying the principle that comment about postarrest silence and
impeachment of a defendant’s testimony with postarrest silence violates due process.
(E.g., People v. Lindsey (1988) 205 Cal.App.3d 112, 116-117 (Lindsey) [prosecutor’s
closing argument comment on defense counsel’s failure to advise law enforcement before
trial about defendant’s alibi amounted to a comment on defendant’s right to remain silent
and violated due process]; People v. Galloway (1979) 100 Cal.App.3d 551, 556-559
(Galloway) [prosecutor’s cross-examination of the defendant and comment during
closing argument about the defendant’s postarrest failure to inform law enforcement
about his alibi violated due process].)
       Here, however, the prosecutor instead commented on defendant’s failure to come
forward prearrest, when he apparently saw on the news that his girlfriend was accusing
him of kidnapping their daughter. This does not implicate due process, i.e., the

                                              35
fundamental fairness that precludes prosecutors from using against a defendant an
invocation of the right to remain silent or a defendant’s choice to remain silent postarrest
discussed in Lindsey and Galloway. (See Doyle v. Ohio (1976) 426 U.S. 610, 617-619
[49 L.Ed.2d 91].)
       It has long been the rule that closing argument comment on a defendant’s
testimony and prearrest silence violates neither the Fifth Amendment nor the due process
clause of the Fourteenth Amendment. (Jenkins v. Anderson (1980) 447 U.S. 231, 238-
239 [65 L.Ed.2d 86] [prosecutor’s cross-examination of the defendant and closing
argument comments regarding the defendant’s failure to claim self-defense in the two
weeks after the stabbing before he turned himself in did not violate defendant’s right
against self-incrimination or due process rights].) And in California it was long ago
stated, “[p]rearrest silence may be commented upon unless the court finds the silence was
an invocation of Fifth Amendment rights.” (People v. Free (1982) 131 Cal.App.3d 155,
165; see id. at p. 164 [distinguishing Galloway as involving postarrest silence].)
       Recently, the United States Supreme Court discussed the right against self-
incrimination in the context of a prearrest, noncustodial police interview. In Salinas v.
Texas (2013)    U.S.    [186 L.Ed.2d 376], during a noncustodial, nonMirandized
interview by police, the defendant did not answer when asked whether a ballistics test
would show that shell casings found at the scene would match his shotgun. Instead, he
looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his
lap and began to tighten up. After a period of silence, the investigators asked other
questions, which defendant answered. (Salinas, supra,       U.S. at p.   [186 L.Ed.2d at
p. 383].) The defendant did not testify at trial. (Ibid.) Over defense objection, the
prosecutors, as part of their case-in-chief, used the defendant’s reaction to the police
questioning as evidence of the defendant’s guilt. (Ibid.) The high court held that the
defendant’s right against self-incrimination was not violated by admitting evidence of his
silence after the shell casing question. (Salinas, supra,   U.S. at p.   [186 L.Ed.2d at

                                             36
p. 385].) “[A] defendant normally does not invoke the privilege by remaining silent.”
(Ibid.) The court held that because the defendant did not say he was refusing to answer
on Fifth Amendment grounds, the prosecution’s use of his noncustodial silence did not
violate the Fifth Amendment. Further, the court declined to craft an exception to the
“ ‘general rule’ ” that the privilege against self-incrimination must be invoked in order to
benefit from it (ibid.), rejecting the notion that the invocation requirement should not
apply where a witness is silent in the face of official suspicions (Salinas, supra,   U.S. at
p.   [186 L.Ed.2d at p. 386]). Such a rule “would do little to protect those genuinely
relying on the Fifth Amendment privilege while placing a needless new burden on
society’s interest in the admission of evidence that is probative of a criminal defendant’s
guilt.”17 (Ibid.)
       Here, defendant never invoked his right to remain silent. As the prosecutor
pointed out, he fled and used a false name when he was caught, conduct from which
consciousness of guilt could be inferred. (People v. Mendoza (2000) 24 Cal.4th 130, 180
[flight]; People v. Showers (1968) 68 Cal.2d 639, 643 [false statements].) Under the
circumstances, we have no trouble concluding defendant’s prearrest silence was not an
invocation of his right to remain silent and the prosecutor’s comment on it violated
neither defendant’s self-incrimination right nor his due process rights.
                          D. Argument Regarding Santa Claus
       Defendant complains the prosecutor in rebuttal argument said to the jury, “And
if you believe that [defendant] is not guilty, then you must still believe in Santa Claus.




17 Salinas was a plurality opinion by three justices. Two additional justices concurred in
the result but expressed the view that the defendant’s claim would fail even if he had
invoked the privilege, because the Fifth Amendment does not apply to precustodial
silence. (Salinas, supra, U.S. at p. [186 L.Ed.2d at p. 389 (Thomas & Scalia, JJ.,
conc. in jdmt.) The other four justices dissented. (Salinas, supra, U.S. at pp. -
[186 L.Ed.2d at pp. 390-397.]

                                             37
You must not be using your common sense.” Defendant claims the comment improperly
raised the bar for acquittal from a reasonable doubt to extreme doubt and improperly
shifted the burden of proof.
        Defendant forfeited the point by failing to object in the trial court and, in any
event, defendant’s argument is clearly meritless, because the prosecutor’s comment
merely suggested gullibility as the only means to disregard the overwhelming evidence.
The argument in no way minimized the burden of proof.
                            E. Comment Regarding Defense Counsel
        Defendant argues the prosecutor in rebuttal argument accused defense counsel of
trying to mislead the jurors, as follows:
        “Another thing [defense counsel] said was, [w]ell, since this is a circumstantial
evidence case, there’s two ways you can think about it. And then, if you think . . . there’s
some evidence that he’s innocent, then you must find him innocent.
        “But . . . this is a direct evidence case. This is not a circumstantial evidence
case. . . . [¶] . . . [¶]
        “This is direct evidence. You have witnesses that said, No, I saw [defendant] shoot
the gun. I saw [defendant] make the threats. I saw [defendant] with my own eyes do all
these crimes. There’s no circumstantial evidence in this case, ladies and gentlemen. So
you’re not doing this [‘]either or[’] that [defense counsel] was talking [sic]. He’s trying
to fool you. He’s trying to pull the wool over your eyes.
        “[Defense counsel]: I’m going to object.
        “THE COURT: Overruled.”
        The trial court properly overruled the objection. A prosecutor commits
misconduct if he or she attacks the integrity of defense counsel or casts aspersions on
defense counsel. (People v. Hill (1998) 17 Cal.4th 800, 832.) However, a prosecutor has
wide latitude in describing the deficiencies in opposing counsel’s tactics. (People v.
Bemore (2000) 22 Cal.4th 809, 846.) “An argument which does no more than point out

                                              38
that the defense is attempting to confuse the issues and urges the jury to focus on what
the prosecution believes is the relevant evidence is not improper.” (People v. Cummings
(1993) 4 Cal.4th 1233, 1302, fn. 47.)
       We conclude defendant fails to show grounds for reversal based on prosecutorial
misconduct.
                  V. Firearm Enhancement Sentence on Count Five
       Defendant contends the trial court improperly added to count five, assault with a
firearm, an unauthorized sentence of 25 years to life for personally discharging a firearm
causing great bodily injury under former section 12022.53, subdivision (d).18 Defendant
argues former section 12022.53 by its own terms does not apply to assault with a firearm,
was not pleaded, and was not found true. The People concede the point. However, we
believe the People concede too much. Although the trial court erred in citing former
section 12022.53 at the sentencing hearing and sentencing defendant consistent with the
punishment for that enhancement, the abstract of judgment correctly shows for count five
an enhancement under section 12022.5, subdivision (a).19 Moreover, the trial court



18 At the time of defendant’s offenses, section 12022.53, subdivision (d), provided,
“Notwithstanding any other provision of law, any person who, in the commission of a
felony specified in subdivision (a) [murder, mayhem, etc., but not assault with a firearm],
Section 246 [discharge of firearm at occupied building or vehicle], or subdivision (c) or
(d) of Section 12034 [discharge of firearm from vehicle], personally and intentionally
discharges a firearm and proximately causes great bodily injury, as defined in
Section 12022.7, or death, to any person other than an accomplice, shall be punished by
an additional and consecutive term of imprisonment in the state prison for 25 years to
life.”
19 At the time of defendant’s offenses, section 12022.5 provided in part, “(a) Except as
provided in subdivision (b) [use of assault weapon or machine gun], any person who
personally uses a firearm in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for 3,
4, or 10 years, unless use of a firearm is an element of that offense. [¶] . . . [¶]
(d) Notwithstanding the limitation in subdivision (a) relating to being an element of the

                                            39
should also have imposed a consecutive three-year enhancement under former section
12022.7,20 subdivision (a), for personal infliction of great bodily injury, as charged and
as found true by the jury.
       An unauthorized sentence may be corrected on appeal despite the defendant’s
failure to object in the trial court. (In re Renfrow (2008) 164 Cal.App.4th 1251.) The
reviewing court may correct an unauthorized sentence even on a point not raised by the
parties (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6) and even if the corrected
sentence is more severe for the defendant than the original sentence (People v. Serrato
(1973) 9 Cal.3d 753, 763-765, disapproved on other grounds in People v. Fosselman
(1983) 33 Cal.3d 572, 583, fn. 1).
       In the third amended information, count five alleged section 12022.5,
subdivision (a), personal use of a firearm, and section 12022.7, personal infliction of
great bodily injury. The jury was properly instructed on both allegations, and found both
true.21 Separate enhancements based on sections 12022.5 and 12022.7 are permissible
where, as here, a defendant commits assault with a firearm, personally uses the firearm,



offense, the additional term provided by this section shall be imposed for any violation of
Section 245 if a firearm is used . . . .”
20 Section 12022.7 states in part, “(a) Any person who personally inflicts great bodily
injury on any person other than an accomplice in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment in the
state prison for three years. . . . [¶] (g) This section . . . shall not apply if infliction of
great bodily injury is an element of the offense.”
21 Section 12022.53 was pleaded as to count six (kidnapping), as was a great bodily
injury allegation under section 12022.7. (However, the jury did not fill out that part of
the verdict form, which appeared on a separate page following a page which ended with
lesser included offenses of attempted kidnapping and false imprisonment, which the jury
did not need to fill out after finding defendant guilty of kidnapping. The trial court
apparently overlooked the jury’s oversight. Since there was no finding on the
section 12022.53 allegation for count six, the trial court properly did not impose a
section 12022.53 or 12022.7 enhancement for count six.

                                              40
and personally inflicts great bodily injury. (People v. Ahmed (2011) 53 Cal.4th 156, 159-
160.)
        The reporter’s transcript shows the trial court cited section 12022.53 at the
sentencing hearing, as follows:
        “Turning . . . to Count Five, a violation of Penal Code section 245(a)(2), assault
with a firearm, and the allegations that the defendant has suffered two prior ‘strike’
convictions having been found true by the court, as well as the allegation that the
defendant having personally used a firearm pursuant to Penal Code section 12022.5 and
discharged a firearm causing great bodily injury pursuant to Penal Code
section 12022.53(d), having been found true by jury as charged in Count Five . . . , the
defendant is sentenced to the state prison of the State of California for the term of 50
[years] to life, comprised as follows:
        “Twenty-five to life for the violation of Penal Code section 245(a)(2) by a person
having found to be a person who has suffered two prior ‘strike’ convictions and 25 to life
for the Penal Code section 12022.53(d) enhancement, imposed consecutively.
        “The court selects and imposes the upper-term sentence of ten years with respect
to Penal Code section 12022.5(a) enhancement violation; however, this ten-year
enhancement is stayed pursuant to Penal Code section 654 as articulated by People versus
Sinclair, (2008) 166 Cal.App.4th 848.[22] Consecutive sentencing is selected as to this
count because it involved separate acts and a separate victim.”
        The abstract of judgment does not cite section 12022.53 and does not show the
stay referenced by the court but instead states the following enhancements:




22People v. Sinclair (2008) 166 Cal.App.4th 848, said that when a section 12022.53
enhancement must be imposed, the trial court is obliged to impose and stay an additional
enhancement under section 12022.5. (Sinclair, supra, at p. 854, citing People v.
Gonzalez (2008) 43 Cal.4th 1118, 1127-1130.)

                                              41
       Count one (assault with firearm on Mikio Morris), section 12022.5, subdivision
(d), 10 years;
       Count five (assault with firearm on Mark McFadzean), section 12022.5,
subdivision (a), 16 months; and
       Count ten (attempted criminal threats against D.W.), section 12022.5,
subdivision (a), 16 months.
       Generally, in criminal cases the oral pronouncement of judgment controls over the
written judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) Here, the trial
court erred in sentencing defendant pursuant to section 12022.53 for count five assault
with a firearm, because that statute does not apply to assault with a firearm, was not
pleaded in count five, and was not found true.
       The abstract reflects a consecutive 16-month sentence on the section 12022.5,
subdivision (a)(1) enhancement for count five. However, the court actually orally
pronounced a sentence of 10 years and stayed imposition of that sentence pursuant to
section 654. Because the sentence on the section 12022.53 enhancement was
unauthorized, we order that the stay be lifted and the 10-year sentence on the section
12022.5(a) enhancement be executed. We also direct that the abstract be corrected
accordingly.
       Additionally, the failure to sentence defendant on the section 12022.7 great bodily
injury allegation must be addressed. We remand with directions to impose a sentence for
the section 12022.7 enhancement on count five, as charged and found true.
       Also, we note that the abstract states section 12022.5(d) for the firearm
enhancement on count one. Consistent with the information, the verdict form indicates a
true finding on a firearm enhancement pursuant to section 12022.5(a)(1). And as we
have noted, there was no subdivision (a)(1) of section 12022.5 at the time of these




                                            42
offenses. (See fn. 3, ante.) We direct that the abstract be corrected to reflect section
12022.5(a) as to counts one, four and ten.23
                                   VI. Section 654 Error
         Defendant contends the trial court improperly ordered sentences on three of the
criminal threats counts stayed under section 65424 to run concurrently and consecutively.
The People concede the point. We agree that there was section 654 error.
                                       A. Background
         On count three, criminal threats against Morris, the trial court imposed a term of
25 years to life and stayed execution of the sentence pursuant to section 654. The court
then stated, “As to Counts One through Three, inclusive [assault with firearm on Morris,
kidnapping Morris, and criminal threats against Morris], the court imposes concurrent
sentencing among these counts inasmuch as the acts underlying the conduct herein were
committed on the same occasion, involved the same victim, and occurred at the same
place as part of a single course of conduct. . . .” (Italics added.)
         The court sentenced defendant to 25 years to life on count six, the kidnapping of
Mark McFadzean. As to count eight, criminal threats against Mark McFadzean with
personal use of a firearm, the court sentenced defendant to 25 years to life, stayed
pursuant to section 654. The court then said, “Because these events involved a similar set
of operative facts, the sentences for Counts Six and Eight shall run concurrent to one
another; however, because the facts underlying the events involved in Counts Six and
Eight are distinct from those involved in Count Five [assault with a firearm on




23   See footnote 3, ante.
24 Section 654 provides in part: “(a) An act or omission that is punishable in different
ways by different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. . . .”

                                               43
McFadzean] with respect to location and conduct, the court runs these sentences
consecutive to the sentences imposed for Counts One through Four [offenses against
Morris and Richardson], and Count Five . . . .” (Italics added.)
       As to counts seven and nine, kidnapping of Griffin and criminal threats against
Griffin, the court sentenced defendant to 25 years to life for the kidnapping. For the
criminal threats, the court sentenced defendant to 25 years to life, stayed under
section 654. The court then said, “Because these events relating to Miss Griffin involved
a similar set of operative facts, the sentences for Counts Seven and Nine shall run
concurrent to one another; however, because the facts underlying the events involved in
Counts Seven and Nine are distinct from those involved in the foregoing, including a
different victim and efforts to dissuade the defendant from his actions, the court
accordingly runs Counts Seven and Nine’s sentences consecutive to the sentences
imposed for Counts One through Four, and Counts Five, Six and Eight . . . .” (Italics
added.)
       Thus, the court stayed the sentences on the criminal threats convictions, impliedly
finding that the threats were a means of accomplishing the kidnappings and the defendant
did not have a separate criminal intent or objective when he made the threats. However,
as we read the court’s sentencing, the court then imposed the stayed sentence on the
criminal threats against Morris to run concurrent with the term imposed for assault with a
firearm and kidnapping on Morris. The court imposed the stayed sentence on the
criminal threats against McFadzean to run concurrent to the kidnapping of McFadzean
but consecutive to unstayed counts. And the court imposed the stayed sentence for the
criminal threats against Griffin to run concurrent with the kidnapping of Griffin, but
consecutive to unstayed counts.
                                       B. Analysis
       “Whether a course of criminal conduct is divisible and therefore gives rise to more
than one act within the meaning of section 654 depends on the intent and objective of the

                                             44
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (Neal v. California
(1960) 55 Cal.2d 11, 19, italics added, disapproved on other grounds in People v. Correa
(2012) 54 Cal.4th 331, 334.) “If, on the other hand, [a] defendant harbored ‘multiple
criminal objectives,’ which were independent of and not merely incidental to each other,
he may be punished for each statutory violation committed in pursuit of each objective,
‘even though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335.)
       When section 654 applies, the sentence for the conviction must be imposed and
stayed, not ordered to run concurrently or consecutively. (People v. Deloza (1998)
18 Cal.4th 585, 594 [section 654 does not allow any multiple punishment, whether
concurrent or consecutive].)
       It is clear that section 654 applies to three strikes sentencing where the three
strikes law does not mandate consecutive sentencing. (People v. Danowski (1999)
74 Cal.App.4th 815, 824; See also People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164
(Cantrell) [doubled one-strike sentence cannot be both consecutive and stayed because
the two are mutually exclusive].) It is less clear whether sections 667,
subdivision (c)(6)/(7) and 1170.12, subdivision (a)(6)/(7)25 of the three strikes law



25 At the time of defendant’s sentencing in 2010, former section 1170.12,
subdivision (a)(6) and (a)(7) provided in relevant part: “(a) Notwithstanding any other
provision of law, if a defendant has been convicted of a felony and it has been pled and
proved that the defendant has one or more prior felony convictions, as defined in
subdivision (b), the court shall adhere to each of the following: [¶] . . . [¶] (6) If there is
a current conviction for more than one felony count not committed on the same occasion,
and not arising from the same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to this section. [¶] (7) If there is a current
conviction for more than one serious or violent felony as described in paragraph (6) of
this subdivision, the court shall impose the sentence for each conviction consecutive to
the sentence for any other conviction for which the defendant may be consecutively

                                              45
require mandatory consecutive sentences for multiple offenses “not committed on the
same occasion, and not arising from the same set of operative facts,” notwithstanding
section 654. (Danowski, supra, 74 Cal.App.4th at p. 823 [suggesting in dicta that the
three strikes law provisions mandating consecutive sentences for multiple offenses not
committed on the same occasion, and not arising from the same set of operative facts may
be an exception to the section 654 prohibition against multiple punishment].) We need
not address this latter point, because the People do not assert that any of the multiple
threats made at Griffin’s house, at the scene of the shooting, or en route between those
locations were made on different occasions or arose out of a different set of operative
facts within the meaning of the strike provisions.
       We conclude that it was error to order the stayed sentences on the criminal threats
convictions to run consecutively or concurrently. A stayed sentence may be executed if
there is a reversal of the unstayed count. (People v. Alford (2010) 180 Cal.App.4th 1463,
1468-1469; Cantrell, supra, 175 Cal.App.4th at p. 1164 [imposition of consecutive and
stayed sentence would be meaningless because the stayed sentence would only operate if
the principle count were eliminated].) But short of a reversal, there can be no punishment
for a sentence stayed pursuant to section 654.
       We order that the concurrent and consecutive sentences imposed on the criminal
threats counts be vacated. Upon remand, the trial court shall impose the mandatory
sentence of 25 years to life on the criminal threats counts and simply stay the sentences
on each count pursuant to section 654 without running them either concurrently or
consecutively.



sentenced in the manner prescribed by law.” (Prop. 184, as approved by voters, Gen.
Elec. (Nov. 8, 1994).)

  The relevant portions of the legislative version of the three strikes law (§ 667,
subds. (b)-(i)) were virtually identical. (Stats. 1994, ch. 12, § 1.)

                                             46
                         VII. Reimbursement Of Attorney Fees
       Defendant argues the trial court erred under section 987.826 by ordering, “The
defendant shall reimburse the county for services of counsel.” The People appropriately
concede the error, because the trial court erred. We vacate the order. Defendant shall not
be required to pay his attorney the fee.
       A challenge to a section 987.8 fee is not forfeited by the defendant’s failure to
object in the trial court. (People v. Viray (2005) 134 Cal.App.4th 1186, 1215.)
       Defendant notes, and the People agree, that the record does not reflect that
defendant was provided notice he may be required to pay the cost of counsel. Such
notice is required by section 987.8, subdivision (f), fn. 26, ante.) Nor was a hearing held
to determine ability to pay, as required by section 987.8. Indeed, there was not even a
determination as to how much defendant had to pay.
       “[T]here is a presumption under [section 987.8] that a defendant sentenced to
prison does not have the ability to reimburse defense costs. Subdivision (g)(2)(B) of
section 987.8 provides in pertinent part: ‘Unless the court finds unusual circumstances, a
defendant sentenced to state prison shall be determined not to have a reasonably




26 Section 987.8 provides in pertinent part: “(b) In any case in which a defendant is
provided legal assistance, either through the public defender or private counsel appointed
by the court, upon conclusion of the criminal proceedings in the trial court . . . , the court
may, after notice and a hearing, make a determination of the present ability of the
defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold
one such additional hearing within six months of the conclusion of the criminal
proceedings. . . . [¶] . . . [¶] (f) Prior to the furnishing of counsel or legal assistance by
the court, the court shall give notice to the defendant that the court may, after a hearing,
make a determination of the present ability of the defendant to pay all or a portion of the
cost of counsel. The court shall also give notice that, if the court determines that the
defendant has the present ability, the court shall order him or her to pay all or a part of the
cost. The notice shall inform the defendant that the order shall have the same force and
effect as a judgment in a civil action and shall be subject to enforcement against the
property of the defendant in the same manner as any other money judgment.”

                                              47
discernible future financial ability to reimburse the costs of his or her defense.”
(People v. Flores (2003) 30 Cal.4th 1059, 1067.)
       Here, defendant was sentenced to prison, and nothing in the record shows unusual
circumstances warranting an order for him to pay for costs of counsel.
       We strike the order to reimburse counsel costs.
                   VIII. Government Code Section 70373 Assessment
       Defendant argues the trial court erred in applying the Government Code
section 7037327 court facilities assessment, because defendant’s offenses predated the
enactment of the statute. Defendant acknowledges that we rejected an identical argument
in People v. Fleury (2010) 182 Cal.App.4th 1486, 1489-1495, and he says he raises the
issue to preserve it.
       We reject defendant’s claim. The assessment stands.
                                      DISPOSITION
       The case is remanded to the trial court for resentencing. The sentence on the
section 12022.53, subdivision (d) enhancement in count five is vacated. The stay
imposed on the sentence for the section 12022.5, subdivision (a) enhancement on count
five is lifted and the 10-year sentence shall be executed. The trial court is directed to
order execution of that sentence.




27  Government Code section 70373 states in part: “(a)(1) To ensure and maintain
adequate funding for court facilities, an assessment shall be imposed on every conviction
for a criminal offense, including a traffic offense, except [specified] parking offenses
. . . . The assessment shall be imposed in the amount of thirty dollars ($30) for each
misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.
[¶] . . . [¶] (d) [T]he assessments collected pursuant to subdivision (a) shall all be
deposited in a special account in the county treasury and transmitted therefrom monthly
to the Controller for deposit in the Immediate and Critical Needs Account of the State
Court Facilities Construction Fund, established in Section 70371.5. . . .”

                                             48
       The trial court is further directed to impose a sentence for the section 12022.7
enhancement on count five.
       The concurrent and consecutive sentences on the criminal threats counts are
vacated. The court shall impose the mandatory sentence of 25 years to life on each of
those counts and order those sentences stayed pursuant to section 654.
       The order to pay for the services of counsel is vacated. Defendant shall not be
required to pay attorney fees.
       The court is directed to correct its minute order and abstract for each of the section
12022.5, subdivision (a) enhancements by deleting reference to subdivision (a)(1) and
substituting subdivision (a).
       The court is further directed to ensure that its minute order reflecting defendant’s
sentencing shows the changes we have ordered. The court shall correct and modify the
abstract consistent with this disposition order and forward a certified copy of the
corrected and modified abstract of judgment to the Department of Corrections and
Rehabilitation.
       The judgment is otherwise affirmed.




                                                           MURRAY              , J.



We concur:



       NICHOLSON             , Acting P. J.



         BUTZ                , J.

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