Filed 4/27/16 P. v. Pulliam-Banks CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A142425
v.
MICHAEL PULLIAM-BANKS,                                               (Contra Costa County
                                                                     Super. Ct. No. 51217199)
         Defendant and Appellant.


                                                   INTRODUCTION
         Defendant Michael Pulliam-Banks appeals from his conviction of involuntary
manslaughter. (Pen. Code, § 192, subd. (b).)1 He contends his trial counsel was
ineffective for failing to object to portions of the prosecutor’s closing argument, and the
trial court erred in determining he was presumptively ineligible for probation. We affirm.
                              FACTUAL AND PROCEDURAL BACKGROUND
         In December 2010, defendant was 18 years old and living with his sister in
Vallejo. He was unemployed and made money selling marijuana and cutting hair. On
December 20, he told a friend he wanted to buy a quarter pound of marijuana. The friend
put him in contact with Arnold Muckleroy, who had marijuana for sale. Defendant and
Muckleroy arranged to meet that day in a residential neighborhood in Antioch to conduct
the sale.



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


                                                             1
       Around 5:00 p.m., defendant and his friend, Brandon Washington, went to the
meeting place in a green Ford Escort defendant had borrowed from another friend.
Defendant drove and Washington was in the front passenger seat. Muckleroy received a
ride to the meeting place from his friend Desirae Pestana. She had her two small children
with her; they were in car seats in the backseat of her car. She pulled up directly behind
the green Escort, and Muckleroy got out of her car and got in the right rear seat of the
Escort. As Pestana looked back to check on her children, she heard three gunshots.2
When she turned around, she saw the green Escort speeding off and Muckleroy lying in
the gutter. Muckleroy died from a single gunshot to the head.
       The district attorney charged defendant with murder (§ 187, subd. (a); count 1)
and attempted robbery (§§ 211, 212.5, subd. (c), 664; count 2). The district attorney
alleged a robbery special circumstance (§ 190.2, subd. (a)(17)) in connection with count 1
and a firearm enhancement (§ 12022.53, subds. (b)–(d)) for both counts.
       At trial, the prosecutor’s theory was defendant intended to rob Muckleroy of his
marijuana. The defense argued defendant only planned to buy marijuana that day, and
the shooting was an accident.
       Defendant testified in his own behalf. He admitted he had a gun, a .45 caliber
Glock, in his waistband when he met Muckleroy. He was “pretty nervous” as this was
his “first time meeting this guy, and [he’d] been robbed before in situations like this.”
According to defendant, Muckleroy’s manner was “[r]eal aggressive like.” Muckleroy
told defendant he did not have the marijuana with him and “You gotta take me to
Brentwood to go get it, but I need to hold the money first.” Defendant thought “this is
not how a normal drug deal goes down. It feels—it feels really funny right now.” He
became concerned about the car behind him (Pestana’s car) and thought “[Muckleroy]
was trying to take advantage of me and take my money.”
       At that point, defendant pulled his gun from his waistband. It was common for
both sellers and buyers of marijuana to have weapons, but Muckleroy did not show him a
       2
         A bystander, however, heard only one gunshot. Defendant maintained there was
only one accidental gunshot.


                                              2
gun or say he had a gun. Defendant pointed his gun down and “racked the slide,
chambering the bullet.” His purpose was “[t]o try to scare” Muckleroy. Defendant
testified “I felt like he was trying to do something with my money” and “I was worried
about my—my life, you know, ‘cause I didn’t know . . . who he had came with initially,
so all these thoughts are going through my head, so that’s why.” When Muckleroy saw
the gun, he moved to open the car door and get out. Defendant swiveled in his seat and
his gun pointed toward Washington. Washington backhanded defendant’s hand holding
the gun and said “ ‘Mike, what the fuck.’ ” Defendant heard a pop, and Muckleroy fell
down. He fell completely out of the car. Defendant was scared and drove away.
       Defendant testified the gunshot “was definitely on accident.” He threw the gun
over the San Francisco Bay Bridge. In May 2011, he turned himself in because he felt
guilty and “couldn’t keep living like that.”
       The jury found defendant not guilty of murder and attempted robbery, but guilty of
involuntary manslaughter. The jury also found true the allegation defendant personally
used a firearm in committing the offense. (§ 12022.5, subd. (a).)
                                         DISCUSSION
A.     Failure to Object to the Prosecutor’s Statements
       Defendant contends the prosecutor misstated the law and misled the jury on the
prosecution’s burden of proof in her closing argument and rebuttal. He further claims he
received ineffective assistance of counsel because his trial counsel failed to object to any
of the alleged instances of prosecutorial misconduct or error.3 We conclude trial counsel
did not render ineffective assistance.
       To establish ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the defendant must show
       3
          The California Supreme Court has observed the term prosecutorial
“misconduct” is somewhat inaccurate given that no bad faith is required to establish an
error; a prosecutorial transgression such as a misstatement of the law is more aptly
described as prosecutorial “error.” (People v. Centeno (2014) 60 Cal.4th 659, 666–667
(Centeno).)


                                               3
resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009
(Mai).)
       “On direct appeal, a conviction will be reversed for ineffective assistance only if
(1) the record affirmatively discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason and failed to provide one,
or (3) there simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.” (Mai, supra,
57 Cal.4th at p. 1009.)
       “A defendant whose counsel did not object at trial to alleged prosecutorial
misconduct can argue on appeal that counsel’s inaction violated the defendant’s
constitutional right to the effective assistance of counsel. The appellate record, however,
rarely shows that the failure to object was the result of counsel’s incompetence;
generally, such claims are more appropriately litigated on habeas corpus, which allows
for an evidentiary hearing where the reasons for defense counsel’s actions or omissions
can be explored.” (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
       1.     The Prosecutor’s Statements
       Defendant maintains the prosecutor misstated the reasonable doubt standard. He
cites the following arguments made by the prosecutor.
       At the beginning of her closing argument, the prosecutor told the jury: “As jurors,
what you do is you look at the evidence and determine what’s reasonable and what’s
unreasonable. You disregard what isn’t reasonable. And what we have in situations
when there are crimes . . . is that there’s evidence. And what the evidence does is it
speaks to you. It tells you what happened. And, as jurors, what you do is listen and see
what it has to say.” (Italics added.)



                                               4
       Later, she noted defendant had sold drugs in the area of the shooting since he was
16 years old. She argued defendant’s “argument and his theory that I am so afraid or I’m
so concerned for my safety that I’m gonna bring a loaded .45 caliber Glock, okay, that
that’s why I bring this ‘cause I’m afraid basically that someone’s gonna shoot me in the
head during the course of a robbery, okay, is unreasonable. Unreasonable.” (Italics
added.)
       After describing the text messages between defendant and Muckleroy about
setting a meeting place for the drug sale, the prosecutor asked “And what is the
reasonable interpretation of this, okay?”
       The prosecutor concluded her closing argument as follows: “In looking at all of
the evidence in this particular case, ladies and gentlemen, it is looking at reasonable
interpretations and discounting unreasonable. It is not buying the defendant’s theory
that somehow he is going to meet someone in a vehicle at a time when he’s so concerned
that he has a .45 caliber Glock. [¶] And when looking at all of the evidence, all of the
facts, ladies and gentlemen, the People know that, based upon this, you will render a
verdict of guilty.” (Italics added.)
       Finally, in her rebuttal, the prosecutor told the jury to consider all the evidence.
She also presented a hypothetical to illustrate the reasonable doubt standard, which
defendant refers to as the “pet-guessing analogy”:
              “Counsel talked about what the burden of proof is and how you
       evaluated the evidence. However, the defense argument is incorrect in
       terms of its interpretation as to how you look at the evidence.

               “The defendant said, well, you take out defense—you take out one
       piece of evidence and you take a look at that and determine whether or not
       it raises a reasonable doubt. In this case you look at all of the evidence
       that’s presented to you. The evidence presented in its entirety. When the
       defendant takes the stand, the cross-examination, the cross-examination of
       all witnesses.

             “And let me give you an example about how you look at the
       evidence to determine whether or not the evidence proves beyond a
       reasonable doubt the defendant’s guilt.



                                              5
                 “Let’s say, for example, you want to find out what your best friend’s
          pet was when they were growing up, okay? And you’re given a whole
          bunch of evidence and a whole bunch of material. Okay. What’s their
          pet’s—you know, what is the pet that they had when they were younger?
          And you’re given a bunch of material. And one of the pieces is, well, it has
          fur, okay? You don’t say, well anything could have fur, so I’m not
          convinced beyond a reasonable doubt as to what that pet was.

                 “You look at everything that’s been presented to you, and the
          evidence presented to you was that it was — it had fur, it had a long tail, it
          had pointy ears and it says ‘meow,’ okay? You don’t just take up one piece
          of evidence and look at it and say, ‘Oh my gosh, this could be reasonable or
          unreasonable.’ You look at all the information together to see how it’s put
          together.”

          2.     Analysis
          “It is permissible to argue that the jury may reject impossible or unreasonable
interpretations of the evidence and to so characterize a defense theory. [Citations.] It is
permissible to urge that a jury may be convinced beyond a reasonable doubt even in the
face of conflicting, incomplete, or partially inaccurate accounts. [Citations.] It is
certainly proper to urge that the jury consider all the evidence before it.” (Centeno,
supra, 60 Cal.4th at p. 672.) The California Supreme Court has specifically approved a
“prosecutor’s argument that the jury must ‘ “decide what is reasonable to believe versus
unreasonable to believe” and to “accept the reasonable and reject the unreasonable.” ’ ”
(Ibid.)
          On the other hand, it is error for a “prosecutor to suggest that a ‘reasonable’
account of the evidence satisfies the prosecutor’s burden of proof” or “ to state that ‘a
defendant has a duty or burden to produce evidence, or a duty or burden to prove his or
her innocence.’ ” (Centeno, supra, 60 Cal.4th at pp. 672–673, italics omitted.)
          Considering the prosecutor’s initial closing argument, as well as her statement in
rebuttal, that the jury must consider all the evidence, we see nothing improper.
Statements that the jury should “disregard” and “discount” unreasonable interpretations
of the evidence, that the defense theory was an unreasonable interpretation of the
evidence, and that the jury should consider all evidence before it, are well within the


                                                 6
bounds of appropriate argument.4 The prosecutor did not suggest either the prosecution
met its burden of proof simply because its theory was reasonable or the defense had a
burden to prove innocence. To the contrary, the prosecutor told the jury “the People have
the burden of proving beyond a reasonable doubt that the killing was not excused.”
Given that the prosecutor’s arguments were not improper, “there was no reason for a
defense objection. Therefore, the failure to object did not result in a violation of
defendant’s constitutional right to the effective assistance of counsel.” (Lopez, supra,
42 Cal.4th at p. 968.)
       Furthermore, “deciding whether to object is inherently tactical, and the failure to
object will rarely establish ineffective assistance.” (People v. Maury (2003) 30 Cal.4th
342, 419 (Maury).) Even if we were to assume portions of the prosecutor’s initial closing
were misleading, defendant cannot establish ineffective assistance of counsel because
“defense counsel could have legitimately decided that it was tactically wise not to
interrupt the prosecutor but to respond to the [prosecutor’s misconduct] . . . during his
own closing argument.” (People v. Welch (1999) 20 Cal.4th 701, 764.) In fact, defense
counsel did discuss the presumption of innocence and reasonable doubt at great length
during his closing argument.
       Next, we consider the prosecutor’s pet-guessing analogy. Defendant asserts the
analogy is similar to a prosecutor’s presentation deemed improper in Centeno, supra,
60 Cal.4th 659. In Centeno, the prosecutor displayed a geographical outline of California
and asked the jury to consider a hypothetical trial on what state it was. She described
hypothetical testimony that contained inconsistencies, omissions, and inaccuracies, but
argued the jury would have no reasonable doubt that the state was California. (Id. at
p. 664.) Our high court found the central flaw in the prosecutor’s argument was that the
visual aid showing the shape of California was not supported by “evidence” from the
hypothetical trial: “[T]he prosecutor began with the outline of California. She did not

       4
        Indeed, defense counsel similarly argued “[W]hen considering circumstantial
evidence, you must accept only reasonable conclusions and reject any that are
unreasonable.”


                                              7
posit that the outline had been established by any evidence; it was simply presented as a
given. The essential question, ‘[W]hat state is this?,’ began with an important factor
presumed: that the outline was, indeed, the depiction of a state. In these two respects,
the hypothetical invited the jury to jump to a conclusion before the prosecutor recounted
any other hypothesized ‘evidence.’ ” (Id. at p. 670, fn. omitted.)
       The court explained further: “The use of an iconic image like the shape of
California . . . , unrelated to the facts of the case, is a flawed way to demonstrate the
process of proving guilt beyond a reasonable doubt. . . . [S]uch demonstrations trivialize
the deliberative process, essentially turning it into a game that encourages the jurors to
guess or jump to a conclusion.” (Centeno, supra, 60 Cal.4th at p. 669.) Defense counsel
in Centeno failed to object to the prosecutor’s presentation, and the court concluded this
omission amounted to ineffective assistance of counsel. (Id. at pp. 675–677.)
       Centeno is distinguishable. First, the pet-guessing analogy the prosecutor offered
in this case did not suffer from the central flaw of the hypothetical trial in Centeno as it
did not involve a visual aid and did not presume important facts not supported by
hypothetical “evidence.” While the analogy may have oversimplified or trivialized the
jury’s task, the prosecutor’s argument did not invite the jury to jump to conclusions.
Defense counsel reasonably could have determined that the prosecutor’s argument,
absent the iconic imagery, was not particularly misleading or effective and, therefore, did
not require an objection. Again, the decision “whether to object is inherently tactical, and
the failure to object will rarely establish ineffective assistance.” (Maury, supra,
30 Cal.4th at p. 419.)
       Second, in Centeno, the trial court instructed the jury on the presumption of
innocence before closing arguments. As a result, without an objection from the defense,
“the prosecutor’s argument was the last word on the subject.” (Centeno, supra,
60 Cal.4th at p. 677.) Here, the trial court instructed the jury with CALCRIM No. 220 on
the presumption of innocence and the reasonable doubt standard after closing arguments.
Defense counsel knew the jury instruction would follow closing arguments as he
specifically told the jury to listen the court’s instruction on the reasonable doubt


                                               8
standard.5 In this circumstance, knowing the court’s instruction would be the last word
on the reasonable doubt standard, trial counsel reasonably could have declined to object
to the prosecutor’s argument, relying on the jury to follow the court’s instruction. (See
People v. Osband (1996) 13 Cal.4th 622, 717 [when a prosecutor’s argument conflicts
with the trial court’s instructions, reviewing court presumes the jury followed the
instructions and disregarded the argument].)
        In addition, during defense counsel’s closing argument, the prosecutor objected
more than once to his discussion of the reasonable doubt standard. After one objection,
the trial court responded by addressing the jury: “You know what, ladies and gentlemen?
I will read the law to you. You will receive the instruction with regard to what is meant
by reasonable doubt or beyond a reasonable doubt, so you’ll receive that.” After another
objection, the trial court told the jury “counsel’s statements are not evidence” and “if
anything that counsel says disagrees with my instruction, then you must follow my
instructions.” Trial counsel reasonably could have decided not to object during the
prosecutor’s rebuttal based on a determination the jury was sufficiently admonished
about following the court’s instructions on the reasonable doubt standard and the
consideration that raising an objection risked appearing disruptive or contentious to the
jury.
        In sum, we can conceive a reasonable tactical purpose for not objecting to the
prosecutor’s pet-guessing analogy. Consequently, defendant’s claim of ineffective
assistance of counsel fails. (People v. Weaver (2001) 26 Cal.4th 876, 926 [“In the usual
case, where counsel’s trial tactics or strategic reasons for challenged decisions do not
appear on the record, we will not find ineffective assistance of counsel on appeal unless
there could be no conceivable reason for counsel’s acts or omissions.”].)



        5
          He told the jury: “[W]hen the Judge reads you the instruction on reasonable
doubt, listen to it. You’ll hear the phrase: an abiding conviction of the truth. What is
abiding? It’s something that you live with. Something that you live with for the rest of
your life.”


                                               9
       Moreover, we discern no prejudice. “When attacking the prosecutor’s remarks to
the jury, the defendant must show that, ‘[i]n the context of the whole argument and the
instructions’ [citation], there was ‘a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner. [Citations.] In
conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements. [Citation.]’ ”
(Centeno, supra, 60 Cal.4th at p. 667.)
       In this case, the main thrust of the prosecutor’s closing argument was the evidence
showed defendant was planning to rob Muckleroy. She offered no arguments related to
the lesser included offense of involuntary manslaughter. Only defense counsel referred
to involuntary manslaughter during closing argument. He argued: “There’s arguably two
different things that happened in the car. Either a brandishing, to scare Muckleroy off,
you know, flashing a gun; or an assault with a deadly weapon. . . . Either one of those,
you could get to involuntary manslaughter.”6 He suggested the jury had to “decide
between accident and involuntary manslaughter.”
       The jury rejected the prosecutor’s theory of the case and accepted one of the
defense theories. Thus, we cannot conclude the prosecutor’s pet-guessing analogy
caused defendant any harm. Had defense counsel objected to the prosecutor’s pet-
guessing analogy during her rebuttal and the court admonished the jury on the reasonable
doubt standard, it is not reasonably probable defendant would have obtained a better
outcome.
B.     The Probation Decision
       Defendant argues the trial court denied probation under the incorrect belief he was
statutorily presumptively ineligible for probation, and the case must be remanded for
resentencing.
       At sentencing, the trial court stated defendant was presumptively ineligible for
probation under section 1203, subdivision (e)(2), based on the jury’s finding of personal
       6
       In his opening brief, defendant describes this passage as the prosecutor’s
argument, but it was in fact defense counsel’s argument.


                                             10
firearm use. This provision specifies in relevant part: “Except in unusual cases where
the interests of justice would best be served if the person is granted probation, probation
shall not be granted to any of the following persons: [¶] . . . [¶] (2) Any person who
used, or attempted to use, a deadly weapon upon a human being in connection with the
perpetration of the crime of which he or she has been convicted.” (§ 1203, subd. (e)(2),
italics added.)
       A conviction of involuntary manslaughter, by itself, is insufficient to establish a
defendant “used” a firearm under section 1203 even if the victim died from a gunshot.
(People v. Southack (1952) 39 Cal.2d 578, 591 [defendant convicted of manslaughter did
not “use the gun” if he “merely held it without due caution”] (Southack).) For the
involuntary manslaughter instruction, the prosecution alleged defendant committed the
underlying crime of either brandishing a firearm or assault with a firearm. Brandishing a
firearm (§ 417, subd. (a)), however, has been described as “not a crime of violence
‘upon’ [a] person, but is committed in someone’s presence.” (In re Peter F. (2005)
132 Cal.App.4th 877, 881, italics added; People v. Hall (2000) 83 Cal.App.4th 1084,
1096, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 343–
344.) Because his involuntary manslaughter conviction may be based on a finding that
he merely brandished a weapon, defendant posits it cannot be determined that he “used
. . . a deadly weapon upon a human being.” (§ 1203, subd. (e)(2.) Therefore, he
contends, the trial court erred in finding he was presumptively ineligible for probation
under section 1203, subdivision (e)(2).
       The Attorney General does not dispute the claim of error, but argues defendant’s
claim is forfeited because defense counsel did not raise the issue at sentencing. She
further argues defense counsel’s conduct did not amount to ineffective assistance of
counsel because there is no prejudice.
       Despite the Attorney General’s implicit concession, we question defendant’s claim
of error. Southack, supra, 39 Cal.2d 578, is distinguishable because, in this case, the jury
additionally found defendant personally used a firearm in the commission of involuntary
manslaughter under section 12022.5, subdivision (a). (See People v. Chambers (1972)


                                             11
7 Cal.3d 666, 674 [“the meaning of the term ‘use’ as employed in sections 1203 and
12022.5 is consistent”]; People v. Cazares (1987) 190 Cal.App.3d 833, 840–841
[rejecting argument that the “use” of a deadly weapon under section 1203, subdivision
(e), is narrower than the “use” of a firearm under section 12022.5].) Further, In re Peter
F., supra, 132 Cal.App.4th 877 and People v. Hall, supra, 83 Cal.App.4th 1084, stand for
the proposition that a defendant may not be punished multiple times for a single act of
brandishing a weapon, but these cases say nothing about whether section 1203,
subdivision (e)(2), applies when an act of brandishing results in manslaughter. We need
not resolve the issue, however, because we conclude defendant has not shown prejudice.
       “ ‘In order to determine whether error by the trial court [in making a sentencing
choice] requires remanding for resentencing “the reviewing court must determine if ‘it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of error.’ ” ’ [Citation.]” (People v. Gutierrez (1991)
227 Cal.App.3d 1634, 1638.) Thus, whether we consider defendant’s claim of trial court
error directly or, as the Attorney General urges, view the claim as one for ineffective
assistance of counsel, defendant is entitled to reversal and remand only if he can
demonstrate prejudice.
       At sentencing, the trial court stated “[G]iven the severity of the crime, I agree with
probation that this is not a case that’s suitable for probation, and I find that the statutory
limitation has not been overcome, and the Court will not consider a grant of probation.”7
The court then discussed the factors it considered in determining the appropriate
sentence. There were no circumstances in mitigation in the facts relating to the crime.
Considering facts relating to defendant, the court noted he lost his mother and was raised
by relatives who loved him. Letters submitted on his behalf showed defendant was active
in sports and extracurricular activities, he “was brought up with manners, morals, respect
and education,” and he was described as “kind-hearted, goofy, happy-go-lucky, always

       7
         The probation officer’s report recommended against probation. “[D]efendant
must be sentenced to state prison due to the nature of the offense and proven
enhancement. There are consequences for anyone who commits serious crimes.”


                                              12
had a smile on his face.” The court took into account the fact defendant had no criminal
record, but also observed “So how we go from that type of loving environment to selling
drugs while carrying a gun, I’m not sure how we got on that path, and it was a very
unfortunate choice of paths to take when others that you were raised with didn’t take that
path.”
         The court considered aggravating facts relating to the crime and defendant.
         “This crime did involve great violence. The victim was shot during a drug
         transaction. [¶] Secondly, you were armed with and used a firearm during
         this transaction. [¶] Also, you asked your friend to participate in the
         purchase with you. You arranged the buy through yet another friend, and
         you borrowed a third friend’s car for what that friend believed to be a
         robbery, but nevertheless you borrowed that car. So you were obviously in
         a leadership position in this whole occurrence.

                “And then, the manner in which the crime was carried out took
         planning. I wouldn’t say it’s sophisticated, but it did take planning when
         you’re going to arrange a drug deal like that, you set it up with friends, you
         got the car, you texted the victim, you made sure you had your gun, you
         arranged the place where and when to meet.

                 “And factors relating to the defendant in aggravation, only one that I
         found that you engaged in violent conduct that indicates a serious danger to
         society, and anybody that sells drugs in a neighborhood, a residential
         neighborhood, armed with a firearm is a danger to society. There were
         people out on that street at the time of this transaction. There were kids in
         the driveways, people out watering their lawns, sitting on the porches, and
         you are carrying out a drug transaction for, you know, a substantial amount
         of marijuana in this area. So that is—that’s a danger to their community,
         and if they knew what was going on, they would have been mortified.”

         The court issued it sentence as follows: “So with regard to [the involuntary
manslaughter conviction] . . . the Court will impose the aggravated term of four years.
[¶] The Court is using the factors that you induced others to participate in the crime with
you, your co-defendant, Mr. Washington. You had a leadership role, and the crime did
involve great violence resulting in the death of Mr. Muckleroy, who was unarmed.
[¶] Also, with regard to the [firearm-use enhancement] . . . , the Court will impose the
aggravated term of 10 years. The manner in which the crime was carried out involved


                                               13
planning. You borrowed a car, you brought a gun, you arranged the deal through a
friend, you texted the victim and arranged where and when to meet, and you arranged this
all in a neighborhood where you had been selling. . . . [¶] Also, you engaged in violent
conduct while carrying a loaded gun.”
       Thus, the trial court found the aggravating circumstances outweighed any
circumstances in mitigation to such an extent that it imposed the aggravated term for both
the involuntary manslaughter conviction and the firearm-use enhancement. Defendant
asserts remand is necessary because there is no way to separate the presumption of
ineligibility from the court’s ruling denying probation. We disagree. Given the
significant similarity between the factors the court considered in selecting the upper term
and the factors it would have considered to decide whether to grant or deny probation, we
confidently conclude the trial court would not have granted probation had it believed no
statutory presumption against probation applied. (Compare Cal. Rules of Court,
rule 4.414 with rules 4.421, 4.423.) In other words, there is no prejudice. (We note
defendant challenges only the court’s decision denying probation and does claim the trial
court abused its discretion by imposing aggravated terms for involuntary manslaughter
and the firearm enhancement.)
       In support of his argument that remand is required in this case, defendant relies on
People v. Ruiz (1975) 14 Cal.3d 163 (Ruiz) and People v. Sherrick (1993) 19 Cal.App.4th
657 (Sherrick). In Ruiz, the defendant was convicted of possession of heroin for sale, and
our high court modified the judgment to reflect a conviction of possession only. (Ruiz,
supra, at pp. 164–165.) The court then concluded the defendant was entitled to a new
probation hearing “wherein the court may make a new judgment relative to his fitness for
probation in light of the crime of which he now stands convicted.” (Id. at p. 167.) The
court reasoned, “[W]hen . . . the sentencing court bases its determination to deny
probation in significant part upon an erroneous impression of the defendant’s legal status,
fundamental fairness requires that the defendant be afforded a new hearing and ‘an
informed, intelligent and just decision’ on the basis of the facts.” (Id. at p. 168.) In
Sherrick, the trial court’s statements during sentencing indicated the court incorrectly


                                              14
believed the victim was under 11 years old when the victim was in fact 14 years old and,
as result, applied an inapplicable statutory presumption against probation. (Sherrick,
supra, at pp. 659–660.) The reviewing court concluded that reversal and remand for
resentencing was the appropriate remedy. The court explained: “We cannot ‘save’ the
judgment on a harmless error analysis. While the offenses were undoubtedly serious, the
trial court’s comments unquestionably demonstrate that it was laboring under a false
impression of [the defendant’s] legal status.” (Id. at p. 661.)
       We do not read Ruiz and Sherrick as setting aside the usual harmless-error analysis
and adopting a standard of per se reversal for certain sentencing errors. Rather, in each of
those cases, it could not be determined, based on the record, that the trial court’s
misunderstanding or error was harmless. Here, in contrast, the record demonstrates any
error was harmless.
                                       DISPOSITION
       The judgment is affirmed.




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                                        _________________________
                                        Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Dondero, J.




A142425, People v. Pulliam-Banks




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