Filed 1/26/18
                               CERTIFIED FOR PUBLICATION




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



THE PEOPLE,                                                        C081813

                  Plaintiff and Respondent,               (Super. Ct. No. 14F00551)

        v.                                                OPINION ON TRANSFER

MONTRELL WOODS,

                  Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Sacramento County, Allen H.
Sumner, Judge. Affirmed.

      Joseph Shipp, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and F. Matt
Chen, Deputy Attorneys General, for Plaintiff and Respondent.


        At the age of 19, defendant Montrell Woods shot Kenny Hernandez to death
during a confrontation between the two men at an apartment complex. A jury found
defendant guilty of second degree murder and of being a felon in possession of a firearm
and also found he personally discharged a firearm causing death. The trial court


                                              1
sentenced defendant to a term of 15 years to life for the murder and to a consecutive term
of 25 years to life for the firearm enhancement under Penal Code section 12022.53. At
the time of defendant’s sentencing, the enhancement statute provided that
“[n]otwithstanding [Penal Code s]ection 1385 or any other provision of law, the court
shall not strike an allegation under this section or a finding bringing a person within the
provisions of this section.” (Former Pen. Code, § 12022.53, subd. (h).)
       On appeal, defendant argues the trial court erred by failing to bifurcate the
possession of a firearm charge from the murder charge, the court erroneously excluded
evidence of the victim’s propensity for violence, the prosecutor committed two acts of
misconduct, the court committed multiple instances of instructional error, and cumulative
error resulted. Defendant also argues that his case must be remanded to the trial court so
that he can make an adequate record for a future youth offender parole hearing and so
that the trial court can exercise its discretion as to whether to strike the firearm
enhancement based on a recent change to Penal Code section 12022.53 that took effect
on January 1, 2018.
       In the unpublished portion of our opinion, we find no merit in defendant’s claims
of trial court error and prosecutorial misconduct. In the published portion of our opinion,
we conclude that defendant already had sufficient opportunity to make a record of
information relevant to his eventual youth offender parole hearing, but we agree that
remand is necessary to allow the trial court to exercise its discretion as to whether to
strike the firearm enhancement under the recent amendment to Penal Code
section 12022.53.
                    FACTUAL AND PROCEDURAL BACKGROUND
       On January 22, 2014, defendant shot Kenny Hernandez to death during a
confrontation between the two men at an apartment complex. Three witnesses gave
varying accounts of the shooting to law enforcement officers after the incident and at
defendant’s murder trial.

                                               2
       Hernandez’s cousin, Claudia Pena, testified that on January 22, she, Hernandez,
and his mother, Marta Garcia, were moving items Pena had stored for them from her
second story apartment to the apartment the two recently moved into in the same
apartment complex. During one of their trips, Hernandez walked down the stairs with a
small table and boxes, and Pena walked behind him with two chairs. Garcia was behind
Pena, also carrying some items. When Hernandez got to the bottom of the stairs,
defendant came up fast on a scooter and hit Hernandez near his waist with the handlebar
of the scooter. Pena testified that Hernandez told defendant in English, “Hey, be careful.
Hey, be careful. You could hit a baby.” Defendant then threw down his scooter, walked
up to Hernandez, and used racial slurs. Hernandez put down the items he was carrying
and responded, “What’s your problem? I’m just telling you to be careful.” Defendant
then shot Hernandez once in the chest killing him.
       In contrast to Pena’s trial testimony, Sacramento County Deputy Sheriff Ryan
Cervetti testified that after the murder Pena told him both defendant and Hernandez were
yelling and cursing at each other before defendant shot Hernandez.
       Garcia testified that defendant crashed into Hernandez with his scooter, and then
Hernandez said something to defendant. Garcia did not completely understand what
Hernandez said because it was in English, but she thought Hernandez told defendant to
be careful. Defendant said something back to Hernandez that Garcia did not understand
and then threw down his scooter. Defendant then walked toward Hernandez causing
Hernandez to put down the items he was carrying. Hernandez did not say anything to
defendant. Defendant said something else to Hernandez and then shot him. Throughout
the whole incident, Hernandez did not appear angry but spoke loudly.
       In contrast to Garcia’s trial testimony, Sacramento County Deputy Sheriff Alex
Lopez testified that after the murder Garcia told him defendant brushed up against
Hernandez at the bottom of the stairs with his scooter. Defendant made “vulgar
comments” to Hernandez, which made Hernandez angry and he “exchange[] words” with

                                            3
defendant before defendant shot him. Sacramento County Deputy Sheriff Juan Hidalgo
testified that Garcia told him Hernandez and defendant exchanged words she did not
understand, but she thought it was “an initiation of a fight.” Garcia also told him that the
two yelled at each other and that Hernandez “was going to go after [defendant] when this
happened.”
       Defendant’s mother, Linda Ellis, who also witnessed the incident, testified that as
she walked down the stairs to take out the trash, she saw her son talking with a black man
at the bottom of the stairs across from her. She had never seen the black man before but
described him as being 23 or 24 years old with dreadlocks or braids and wearing a hat
and a coat. Ellis also saw Hernandez throw trash bags down from the apartment above
where defendant and the black man were standing. Hernandez then walked down the
stairs with a bag and bumped into both defendant and the black man. Defendant told
Hernandez to “watch out,” and Hernandez responded, “What you say you bitch-ass
nigger?” Hernandez then became enraged and ran toward defendant. Hernandez
punched defendant in the face and backed him into a corner where defendant crouched
down and shielded his face. Hernandez then kicked defendant three or four times in his
face. Hernandez then suddenly fell into a nearby barbeque pit and did not get up. The
black man left the area after Hernandez fell into the barbeque pit.
       In contrast to Ellis’s trial testimony, Sacramento County Sheriff’s Detective Pam
Linke testified that Ellis told her defendant and Hernandez argued and fought and that her
son pushed Hernandez into a barbeque. Ellis never said Hernandez hit defendant or that
there was a black man present for the fight. Following the incident, defendant did not
have any injuries, bruises, or bleeding to his face, neck, or arms.
       Defendant was 19 years old at the time of the murder. He was five feet two inches
tall and suffered from an intellectual disability. Dr. Jeffrey Miller, a clinical
psychologist, administered an IQ test to defendant, which determined his ability to
intellectually function by testing his memory, thinking, and reasoning skills. Overall,

                                               4
defendant scored a 58, which placed him in the mild range of intellectual disabilities. A
score below 70, however, constitutes a severe disability in terms of a person’s ability to
function on a daily basis. Because of defendant’s disability, he learns at a very slow rate
and is slow to understand and respond to external acts. Defendant functioned in life as a
nine- to 11-year-old child would function.
       At the time of his death, Hernandez was 5 feet 10 inches tall and weighed 188
pounds. Defendant sought to admit evidence of Hernandez’s violent and aggressive
character based on a police report that included statements from Garcia. According to the
police report, Garcia told officers that Hernandez had been in a fight a month before his
death with a group of black men who tried to “jump” him. He told the group, “[l]et’s go
one-on-one,” which led to a fight between the biggest man in the group and Hernandez.
Garcia also told the officer that her son was a good fighter.
       During an Evidence Code section 402 hearing, Garcia testified that a month before
the murder, a group of men approached Hernandez in a different apartment complex than
the one where he was shot. The biggest man in the group started pushing Hernandez and
Hernandez pushed him back. Garcia got in the middle of the men and told her son not to
fight. The men then dispersed. Garcia stated that her son was not the type of person who
was involved in street fights or made disparaging comments about black people. She also
did not remember telling officers that her son was a “good fighter.” The trial court
excluded this evidence because it did not show Hernandez had a propensity for violence
and because it would constitute an undue consumption of time and potentially confuse
the jury.
       Before trial, defendant moved to exclude his 2013 felony conviction for
possession of cocaine base. The court stated that it would not rule on the issue until it
came up at trial because the court’s decision depended on whether the parties stipulated
that defendant had been convicted of a felony. The trial court noted that even with a
stipulation, the fact of defendant’s felon status would still be presented to the jury. The

                                              5
issue was never addressed again and the prosecution admitted defendant’s certified
record of conviction to prove that he was previously convicted of a felony. During the
prosecution’s rebuttal closing argument, the prosecutor argued defendant’s plea
agreement wherein he indicated that he understood the extent of his plea showed his
mental impairment defense was unavailing. The prosecutor also stated that defense
counsel “talk[ed] trash” and “[could not] back it up” after defense counsel argued the jury
should convict defendant of voluntary manslaughter, but then also argued he did not
commit the murder at all.
       Among other instructions, the court instructed the jury on first and second degree
murder, voluntary manslaughter based on heat of passion and imperfect self-defense,
complete self-defense and the related principles of contrived self-defense and mutual
combat, and mental impairment. The court did not instruct, nor did defense counsel
request the jury be instructed, on involuntary manslaughter. Further, defense counsel did
not request modification to the court’s instructions, except to request that the jury be told
it could consider defendant’s mental impairment for the purpose of the objective
component of the complete self-defense instruction. The trial court denied defendant’s
request, finding it was not supported by the law.
       At sentencing, the trial court indicated it had reviewed defendant’s 11-page
probation report. Defense counsel stated he did not have anything to add to the report
and that it contained no errors or omissions. Defense counsel also indicated he did not
file any other documents with the court and that he had nothing to say before judgment
was entered because the “probation report notated the mitigating factors that [he] would
bring up.” The court then sentenced defendant to a term of 40 years to life for murder
and the associated gun enhancement and imposed a concurrent two-year term for being a
felon in possession of a firearm.




                                              6
                                        DISCUSSION
                                               I
       Defense Counsel Was Not Ineffective For Failing To Request Bifurcation Or
               Severance Of Defendant’s Possession Of A Firearm Charge
       Defendant contends the trial court erred when it failed to bifurcate or sever his
charge for being a felon in possession of a firearm. Defendant did not request bifurcation
or severance at trial but argues on appeal that this issue is not forfeited because the trial
court should have construed his motion to exclude evidence of his prior conviction as a
motion to bifurcate or sever. In the event we reject that argument, he also argues his
counsel was ineffective for failing to request his possession of a firearm charge be
bifurcated or severed from his murder charge. We conclude these issues were forfeited
because defense counsel failed to request bifurcation or severance in the trial court. We
also conclude defense counsel was not ineffective for failing to request bifurcation or
severance.
       A trial court does not have a sua sponte duty to order severance or bifurcation.
(People v. Rogers (2006) 39 Cal.4th 826, 850-851 [severance]; People v. Hernandez
(2004) 33 Cal.4th 1040, 1050 [defendant bears the burden to show bifurcation should be
granted].) Since defendant did not move to sever or bifurcate the possession charge, the
issue is forfeited. (People v. Fuiava (2012) 53 Cal.4th 622, 653 [issue not raised below is
forfeited].)
       Defendant argues, however, that the trial court should have construed his broad
request to exclude his prior felony as a motion to bifurcate or sever. By failing to do so,
defendant argues, the trial court did not “exercise informed discretion.”
       Defendant moved only to exclude evidence of his prior conviction, and he never
secured a ruling on that issue nor informed the court he wished to stipulate to his prior
felony conviction. Thus, even if we treat defendant’s motion to exclude evidence as a
motion to sever or bifurcate, he failed to preserve the issue because he never pressed the

                                               7
trial court for a ruling. (People v. Cunningham (2001) 25 Cal.4th 926, 984 [failure to
press trial court for ruling on motion to sever waives the issue on appeal]; People v.
Pinholster (1992) 1 Cal.4th 865, 931 [same], disapproved on other grounds in People v.
Williams (2010) 49 Cal.4th 405, 459.)
       Defense counsel’s failure to request bifurcation or severance also was not excused
by the futility of an objection, as defendant argues. After defendant requested to exclude
evidence of his prior conviction, the court stated it would “leave that as to come,” clearly
indicating it would be willing to address any issue regarding defendant’s prior conviction
defendant sought to raise. Nothing in the trial court’s statements indicated that it would
not entertain a motion to sever or bifurcate.
       Neither will we address defendant’s claim based on his assertion he was denied
due process and a fair trial. Defendant’s murder charge and felon in possession charge
were properly joined under Penal Code section 954 because they pertain to the same class
of assaultive crimes (People v. Thomas (1990) 219 Cal.App.3d 134, 140) and were
connected in their commission. Further, defendant’s prior felony conviction was
presented through admission of his certified record of conviction. No witness testified
about defendant’s conviction and no time was spent during trial relating the facts of
defendant’s prior crime. The jury was further instructed about the permissible uses of
this conviction -- that it could use defendant’s felony conviction only to determine
whether he was a felon for the purpose of the felon in possession charge. Thus, there is
no indication defendant was denied a fair trial by his counsel’s failure to move to
bifurcate or sever the felon in possession charge.
       Further, defense counsel’s failure to request bifurcation or severance was not
excused due to the “unsettled” state of the law, as he suggests, because the law is not
unsettled. As it pertains to bifurcation, trial courts do not have the discretion to bifurcate
a charged offense when a prior conviction is an element of that offense. “When a prior



                                                8
conviction is an element of a charged offense . . . the Supreme Court has not required or
condoned bifurcation.” (People v. Profitt (2017) 8 Cal.App.5th 1255, 1267.)
       In People v. Valentine (1986) 42 Cal.3d 170, 181-182, the Supreme Court held
that the state Constitution requires proof of the fact of exfelon status when that status is
an element of a current charge. The court also rejected the defendant’s argument that a
trial court could bifurcate trial of exfelon status from trial of the other elements, stating
that this proposal was inconsistent with the voters’ intent when enacting section 28,
subdivision (f) of article I of the California Constitution, which provides that “[w]hen a
prior felony conviction is an element of any felony offense, it shall be proven to the trier
of fact in open court.” (Valentine, at p. 173.)
       Then, in People v. Sapp (2003) 31 Cal.4th 240, “the Supreme Court rejected a
contention that Valentine authorized bifurcation of related charges where a prior
conviction was an element of one of the charges.” (People v. Profitt, supra, 8
Cal.App.5th at p. 1268, citing Sapp, at pp. 260-262.) In Sapp, the defense sought to
bifurcate the felon in possession charge and have it tried to the court instead of the jury.
The Sapp court rejected this contention and explained as follows: “Valentine, supra, 42
Cal.3d 170, allows the trial court only two options when a prior conviction is a
substantive element of a current charge: Either the prosecution proves each element of
the offense to the jury, or the defendant stipulates to the conviction and the court
‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction,
without specifying the nature of the felony committed.” (Sapp at p. 262, italics added.)
       Based on this authority, the trial court did not have the discretion to bifurcate
defendant’s felon in possession charge from his murder charge. For this same reason,
defense counsel was not ineffective for failing to request bifurcation of defendant’s felon
in possession charge. (See People v. Pierce (2015) 234 Cal.App.4th 1334, 1337 [failure
to raise a meritless objection is not ineffective assistance of counsel].)



                                               9
       Other than in dictum, neither Valentine nor Sapp addressed a trial court’s authority
to sever a felon in possession charge from other charges brought in an accusatory
pleading. (People v. Sapp, supra, 31 Cal.4th at pp. 261-262; People v. Valentine, supra,
42 Cal.3d at p. 180, fn. 3.) However, trial courts have entertained such motions (see
People v. Merriman (2014) 60 Cal.4th 1, 43, fn. 7; People v. Gomez (1994) 24
Cal.App.4th 22, 26; People v. Thomas, supra, 219 Cal.App.3d at pp. 139-141; Walker v.
Superior Court (1974) 37 Cal.App.3d 938, 940-943), showing the law is quite settled that
a defendant may do so.
       In any event, defense counsel was not ineffective for failing to request the court
sever defendant’s felon in possession charge from the murder charge. “ ‘To establish
ineffective assistance, defendant bears the burden of showing, first, that counsel’s
performance was deficient, falling below an objective standard of reasonableness under
prevailing professional norms. Second, a defendant must establish that, absent counsel’s
error, it is reasonably probable that the verdict would have been more favorable to him.’ ”
(People v. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) Further, “ ‘a court need not
determine whether counsel’s performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.’ ” (People v. Carrasco
(2014) 59 Cal.4th 924, 982.)
       Here, defendant cannot show prejudice. As we have previously noted, defendant’s
murder charge and felon in possession charge were properly joined under Penal Code
section 954. The charges pertain to the same class of assaultive crimes (People v.
Thomas, supra, 219 Cal.App.3d at p. 140), and the felon in possession charge involved
many of the same facts as the other charged crime and took place at the same time (cf.
Walker v. Superior Court, supra, 37 Cal.App.3d at pp. 940-943 [refusal to grant a motion
to sever felon in possession charge was an abuse of discretion when gun discovered near

                                               10
defendant 106 days after the other crimes charged were committed]). Further,
defendant’s prior conviction was for possession of cocaine base, a crime unrelated to and
far less egregious than murder. It is not likely a jury would convict defendant of murder
simply because he possessed cocaine base a year before the murder took place. (See
People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.) Because the charges were
properly joined under Penal Code section 954 and there was limited potential for
prejudice, it is not reasonably likely the trial court would have granted a motion to sever
defendant’s possession of a firearm charge had defense counsel requested it. Thus,
defense counsel was not ineffective for failing to request defendant’s felon in possession
charge be severed.
                                             II
         The Court Did Not Abuse Its Discretion When Excluding Evidence Of A
                Prior Altercation Between Hernandez And A Third Party
       Defendant contends the trial court erroneously excluded evidence of Hernandez’s
“violent/aggressive character” (bolding and capitalization omitted) as shown by Garcia’s
prior statement to police and her testimony during the Evidence Code section 402
hearing. Defendant also claims the exclusion violated his rights to due process and to
present a defense under the United States Constitution. We conclude the trial court did
not abuse its discretion when excluding this evidence and defendant’s constitutional
claims are similarly unavailing.
       A defendant being prosecuted for homicide or an assaultive offense, and who
asserts self-defense, may introduce evidence of specific violent acts by the victim on a
third person to show that the victim has a violent character and was the aggressor in the
current offense. (People v. Wright (1985) 39 Cal.3d 576, 587) However, “ ‘[t]he court in
its discretion may exclude evidence if its probative value is substantially outweighed by
the probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of misleading the

                                             11
jury.’ ” Rulings under this provision “come within the trial court’s discretion and will not
be overturned absent an abuse of that discretion.” (People v. Minifie (1996) 13 Cal.4th
1055, 1069, 1070.)
       Our Supreme Court has explained as follows: “Section 352 permits the trial judge
to strike a careful balance between the probative value of the evidence and the danger of
prejudice, confusion and undue time consumption. That section requires that the danger
of these evils substantially outweigh the probative value of the evidence. This balance is
particularly delicate and critical where what is at stake is a criminal defendant’s liberty.”
(People v. Lavergne (1971) 4 Cal.3d 735, 744.) Accordingly, “section 352 must bow to
the due process right of a defendant to a fair trial and his right to present all relevant
evidence of significant probative value to his defense. [Citations.] Of course, the
proffered evidence must have more than slight relevancy to the issues presented.”
(People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)
       The trial court found limited probative value to defendant’s proffered evidence
because it did not rise to the level of showing Hernandez had a violent character. The
evidence showed Hernandez responded to being “jumped” and “pushed” by pushing his
aggressor in return. Then the altercation ceased. There was no evidence showing
Hernandez was the aggressor in the fight or that he responded to being pushed in a
disproportionally violent manner. From this evidence, it cannot be said Hernandez
exhibited a character for violence or even acted violently during this one altercation.
Further, the testimony involved a single incident and did not establish a pattern for
violence. (See People v. Stewart (1985) 171 Cal.App.3d 59, 66 [“series of crimes
relevant to credibility is more probative than is a single such offense”]; see also People v.
Muldrow (1988) 202 Cal.App.3d 636, 648.)
       Additionally, presentation of this evidence would have constituted an undue
consumption of time, as the trial court noted. The jury had already heard Garcia’s and
Pena’s prior statements impeaching their testimony that Hernandez was not

                                              12
confrontational in the moments leading to his death. Pena told officers that both
Hernandez and defendant were yelling and cursing at each other, while Garcia told
officers the two men yelled at each other and Hernandez “was going to go after”
defendant. Presenting evidence of this single altercation to the jury would have
necessitated the testimony of not only Garcia, but the officer who took her statement.
This would have consumed additional time while offering minimal probative value to a
set of facts the jury already had heard extensive testimony about.
       It also would have confused the jury, as the trial court found, because Garcia’s
testimony was lacking in detail and neither her testimony nor her statement established
Hernandez had a violent character. Based on the evidence and the court’s statements, the
trial court was well within its discretion to exclude evidence of the single altercation, in
which Hernandez was not the aggressor, pursuant to Evidence Code section 352.
Similarly, defendant’s right to a fair trial and to present a defense was not infringed.
(People v. Snow (2003) 30 Cal.4th 43, 90 [“[a]pplication of the ordinary rules of
evidence, such as Evidence Code section 352, generally does not deprive the defendant of
the opportunity to present a defense”].)
                                              III
  It Is Not Likely The Jury Improperly Construed The Prosecutor’s Remarks Regarding
      Defense Counsel, And Defendant Forfeited His Misconduct Claim Regarding
                  The Prosecutor’s Remarks About His Prior Conviction
       Defendant contends reversal is warranted because the prosecutor committed two
acts of misconduct during the rebuttal portion of his closing argument. One such instance
occurred, he argues, when the prosecutor made disparaging comments about his attorney,
the other when the prosecutor improperly argued the jury could consider defendant’s
prior conviction and plea deal to determine the credibility of his mental impairment
defense. We conclude there was no reasonable likelihood the jury applied the



                                              13
prosecutor’s disparaging comments about defense counsel in an objectionable fashion
and defendant forfeited his second claim of misconduct for failing to object at trial.
       “ ‘ “A prosecutor commits misconduct if he or she attacks the integrity of defense
counsel, or casts aspersions on defense counsel.” [Citations.] “In evaluating a claim of
such misconduct, we determine whether the prosecutor’s comments were a fair response
to defense counsel’s remarks” [citation], and whether there is a reasonable likelihood the
jury construed the remarks in an objectionable fashion [citation].’ [Citation.] ‘To prevail
on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must
show 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.’ ” (People v. Seumanu (2015) 61 Cal.4th
1293, 1336-1337.)
       At the start of the rebuttal portion of the prosecutor’s closing argument, he
criticized defense counsel’s closing argument for being inconsistent and irrelevant. The
prosecutor concluded by saying, “Let’s call a witness doctor, defendant’s IQ, blah-blah-
blah, blah-blah-blah, blah-blah-blah, blah-blah-blah. What’s the relevance? I don’t
know. My guy didn’t do it. [¶] You see, the problem with [defense counsel], he talks
trash. He[,] like [defendant]. He can’t back it up.” (Italics added.) Defense counsel
then objected.
       During his closing argument, defense counsel argued that defendant did not
commit the murder at all but also argued the jury could find defendant guilty of voluntary
manslaughter or imperfect self-defense. Accordingly, the prosecutor was entitled to
address the matter in closing argument and attempt to convince the jury defense counsel’s
arguments were inconsistent and unsupported by the evidence. But although a prosecutor
is accorded wide latitude in attacking the defense’s case (People v. Gamache (2010) 48
Cal.4th 347, 390), to the extent the prosecutor here did not simply argue the defense was

                                             14
unsupported by facts and thus a sham, but that defense counsel “talks trash,” the
argument improperly implied that counsel was personally dishonest. “ ‘An attack on the
defendant’s attorney can be seriously prejudicial as an attack on the defendant himself,
and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never
excusable.’ ” (People v. Hill (1998) 17 Cal.4th 800, 832.) The prosecutor’s comments
here were improper, as well as disrespectful.
       It is not reasonably likely, however, the jury understood or applied the
prosecutor’s improper comments to defendant’s detriment. The prosecutor’s
impermissible comments were fleeting and occurred after a discussion about the
weaknesses in the defense’s case. It is clear from the whole of the prosecutor’s
statements that he was attacking the validity of the defense presented. Accordingly, the
prosecutor’s comments did not rise to the level of prejudicial misconduct. (See People v.
Seumanu, supra, 61 Cal.4th at pp. 1336-1337.)
       Defendant’s second allegation of misconduct is also unavailing. “As a general
rule a defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion--and on the same ground--the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety.”
(People v. Samayoa (1997) 15 Cal.4th 795, 841.) “[O]therwise, the point is reviewable
only if an admonition would not have cured the harm caused by the misconduct.”
(People v. Price (1991) 1 Cal.4th 324, 447.) Here, defense counsel did not object to the
prosecutor’s statements regarding defendant’s previous plea agreement and its relation to
his mental abilities. He also does not argue that an admonition would not have cured any
resulting harm. Thus, he has forfeited his claim that the prosecutor committed
misconduct by arguing the jury could consider evidence of defendant’s conviction when
determining the validity of his mental impairment defense.
       Still, defendant urges us to reach the merits of his claim because his attorney was
ineffective for failing to object and because he was denied a fair trial because of the

                                             15
prosecutor’s statements. We disagree. Defendant did not stipulate to the existence of his
prior conviction and the record does not show the court admitted defendant’s prior
conviction for a limited purpose. The court did, however, instruct the jury that it could
consider evidence of defendant’s prior conviction only for the purpose of determining
whether the prosecution proved defendant was previously convicted of a felony. It also
instructed the jury to follow the law as explained in the instructions and to disregard the
attorneys’ comments on the law that conflicted with the instructions. We assume the jury
followed these instructions. (People v. Cook (2006) 39 Cal.4th 566, 610.) Thus,
regardless of the impropriety of the prosecutor’s comments, the jury is presumed to have
considered evidence of defendant’s prior conviction only when determining whether he
previously was convicted of a felony. Nothing in the record indicates otherwise;
therefore, defendant was not denied a fair trial. For these same reasons, defendant cannot
show he was prejudiced by his counsel’s failure to object to the prosecutor’s comments.
(See Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698] [to
prevail on a claim of ineffective assistance of counsel, defendant must show there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different].)
                                              IV
               The Trial Court Properly Instructed The Jury On The Mental
                        State Required For Voluntary Manslaughter
       Defendant argues the trial court erred in “failing to specify the requisite mens rea
for . . . voluntary manslaughter and explain how malice is negated under voluntary
manslaughter.” (Bolding and capitalization omitted.) He urges us again to reach this
issue despite his counsel’s failure to object in the trial court. He claims the issue is
cognizable because the error implicates his substantial rights and the court had a sua
sponte duty to specify the requisite mens rea for voluntary manslaughter and explain its
malice-negating properties. Defendant also asserts that his counsel was ineffective for

                                              16
failing to object on these grounds. We disagree. Under our authority of People v.
Genovese (2008) 168 Cal.App.4th 817, the instructions adequately informed the jury that
intent to kill and conscious disregard mental states apply to voluntary manslaughter and
that provocation serves to reduce murder to manslaughter. Because the instructions
correctly informed the jury on the law, the trial court did not have a sua sponte duty to
specify the mens rea element of voluntary manslaughter or explain its malice-negating
properties. For these same reasons, defendant’s substantial rights were not affected and
his counsel was not ineffective.
       Here, the jury was instructed as part of the pattern murder instructions (CALCRIM
No. 520) that “the People must prove that: One, the defendant committed an act that
caused the death of another person; two, when the defendant acted, he had a state of mind
called malice of forethought [sic]; and three, he killed without lawful excuse or
justification. [¶] There are two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind required for murder.”
The same instruction included definitions of both express and implied malice
aforethought, including conscious disregard for human life. The jury was also given
CALCRIM No. 522: “[p]rovocation may reduce a murder from first degree to second
degree and may reduce murder to manslaughter. The weight and the significance of the
provocation, if any, are for you to decide. [¶] If you conclude that the defendant
committed murder but was provoked, consider the provocation in deciding whether the
crime was first or second degree murder. Also, consider the provocation in deciding
whether the defendant committed murder or manslaughter.”
       The jury was then instructed per CALCRIM No. 570 on voluntary manslaughter in
relevant part as follows: “A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in
the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in
the heat of passion if: One, the defendant was provoked; two, as a result of the

                                             17
provocation, the defendant acted rashly and under the influence of intense emotion that
obscured his reasoning or judgment; and three, the provocation would have caused a
person of average disposition to act rashly and without due deliberation, that is, from
passion rather than from judgment.” (Italics added.)
       In Genovese, the defendant challenged the voluntary manslaughter instruction in
the same fashion defendant does now. (People v. Genovese, supra, 168 Cal.App.4th at
p. 825.) The jury in Genovese was instructed with the same principles of murder and
voluntary manslaughter as defendant’s jury was instructed. The Genovese jury was told
“ ‘[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the
defendant killed someone because of a sudden quarrel or in the heat of passion.’ ” (Id. at
p. 831.) Based on this language the court explained as follows: “The killing could not
‘otherwise be murder’ unless the jury found defendant intended to kill the victim or acted
with conscious disregard for human life, and the jury was so informed in the instruction
defining murder (i.e., that to prove murder, the prosecution must prove defendant acted
with malice aforethought, and there are two kinds of malice aforethought -- express,
which requires intent to kill, and implied, which requires conscious disregard for human
life).” (Id. at pp. 831-832.) The court rejected the defendant’s argument that, once the
jury determined express or implied malice was present, it was not told it could still find
the defendant guilty of voluntary manslaughter if it believed he acted in the heat of
passion. The court noted the plain language of the instructions informed the jury that a
killing that would otherwise be murder is reduced to voluntary manslaughter if the
defendant acted on a sudden quarrel or in the heat of passion. (Id. at p. 832.)
       As in Genovese, the trial court here relied on the appropriate pattern instructions
to explain to the jury that a killing “that would otherwise be murder” is reduced to
voluntary manslaughter if the defendant killed a person during a sudden quarrel or in the
heat of passion and that the killing could not “otherwise be murder” unless the jury found
the defendant either had intended to kill the victim or acted with conscious disregard for

                                             18
human life. Further, the jury was told multiple times that the presence of provocation
served to reduce murder to voluntary manslaughter. Therefore, the court’s instructions
correctly informed the jury that a killing on a sudden quarrel or in the heat of passion,
whether intentional or in conscious disregard for human life, is voluntary manslaughter.
       Because the jury was correctly instructed about the law, defendant cannot show
the court had a sua sponte duty to further explain the mens rea element of voluntary
manslaughter and its malice-negating properties or that his substantial rights were
affected by the lack of explanation. Similarly, defendant’s counsel was not ineffective
for failing to request further explanation of these principles. (People v. Jackson (1989)
49 Cal.3d 1170, 1188 [counsel was not ineffective when the record illuminates a
reasonable explanation for counsel’s failure to object].)
                                              V
        The Trial Court Properly Instructed The Jury On Contrived Self-Defense,
                        Mutual Combat, And Imperfect Self-Defense
       Defendant contends the trial court improperly instructed the jury on the principles
of mutual combat, contrived self-defense, and unreasonable self-defense. More
specifically, he argues that portions of these instructions were unsupported by the
evidence and were vague, ambiguous, and unconstitutionally overbroad. He asserts that
he was not required to object to these improper instructions, but in the event he was, his
failure should be excused because his substantial rights were affected by the giving of the
instructions. In the event we conclude defendant has forfeited these claims, he asserts his
counsel was ineffective for failing to object to the challenged portions at trial.
       We conclude the jury instructions were correct statements of law and responsive to
the evidence, thus they did not affect defendant’s substantial rights and he forfeited his
claims. Further, because these instructions were correctly given, trial counsel was not
ineffective for failing to object to the portions defendant now challenges on appeal.



                                              19
       “Generally, a party forfeits any challenge to a jury instruction that was correct in
law and responsive to the evidence if the party fails to object in the trial court.
[Citations.] The rule of forfeiture does not apply, however, if the instruction was an
incorrect statement of the law [citation], or if the instructional error affected the
defendant’s substantial rights. [Citations.] ‘ “Ascertaining whether claimed instructional
error affected the substantial rights of the defendant necessarily requires an examination
of the merits of the claim -- at least to the extent of ascertaining whether the asserted
error would result in prejudice if error it was.” ’ ” (People v. Franco (2009) 180
Cal.App.4th 713, 719.)
       “We review de novo whether a jury instruction correctly states the law.
[Citations.] Our task is to determine whether the trial court ‘ “fully and fairly instructed
on the applicable law.” [Citation.]’ [Citation.] When instructions are claimed to be
conflicting or ambiguous, ‘we inquire whether the jury was “reasonably likely” to have
construed them in a manner that violates the defendant’s rights.’ [Citation.] We look to
the instructions as a whole and the entire record of trial, including the arguments of
counsel. [Citations.] We assume that the jurors are ‘ “ ‘intelligent persons and capable of
understanding and correlating all jury instructions . . . given.’ ” ’ [Citation.] If
reasonably possible, we will interpret the instructions to support the judgment rather than
to defeat it. [Citation.] Instructional error affects a defendant’s substantial rights if the
error was prejudicial under the applicable standard for determining harmless error.”
(People v. Franco, supra, 180 Cal.App.4th at p. 720.)
                                               A
                                   Contrived Self-Defense
       Defendant first argues the instruction on contrived self-defense was improper
because it was overbroad, vague, ambiguous, and misleading and was also not supported
by the evidence. We disagree. The jury was instructed with CALCRIM No. 3472, which
states that the “[r]ight to self-defense may not be contrived. A person does not have the

                                              20
right to self-defense or to imperfect self-defense if he provokes a fight or quarrel with the
intent to create an excuse to use force.” This is a correct statement of the law. “In
People v. Enraca (2012) 53 Cal.4th 735, 761 . . . (Enraca) our Supreme Court explained
that the self-defense doctrine ‘may not be invoked by a defendant who, through his own
wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony),
has created circumstances under which his adversary’s attack or pursuit is legally
justified.’ In Enraca, ‘the trial court instructed the jury . . . [with] CALJIC No. 5.55:
“The right of self-defense is not available to a person who seeks a quarrel with the intent
to create a real or apparent necessity of exercising self-defense.” ’ (Ibid.) While Enraca
involved the CALJIC analog to CALCRIM No. 3472, the language of the two
instructions is materially the same. CALCRIM No. 3472 is therefore generally a correct
statement of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455 . . . .)” (People v. Eulian (2016) 247 Cal.App.4th 1324, 1333.)
       Defendant argues the instruction was overbroad, vague, ambiguous, and
misleading because it essentially told the jury defendant forfeited a claim of imperfect or
complete self-defense if he provoked a verbal quarrel to which Hernandez responded
with deadly force. This argument was advanced in People v. Ramirez (2015) 233
Cal.App.4th 940, 947, and the court found instructional error. In Ramirez, evidence
showed that the defendant, who was a gang member, assaulted rival gang members and
then responded with deadly force when he believed a rival gang member had a weapon.
(Id. at pp. 944-945.) The court found, “CALCRIM No. 3472 under the facts before the
jury did not accurately state governing law. The blanket rule articulated in CALCRIM
No. 3472 and reiterated by the prosecutor effectively told the jury, ‘A person does not
have [any] right to self-defense if he provokes a fight or quarrel with the intent to create
an excuse to use [any] force.’ In effect, the prosecutor and the trial court advised the jury
that one who provokes a fistfight forfeits the right of self-defense if the adversary resorts
to deadly force.” (Id. at p. 947.)

                                             21
       Ramirez is readily distinguishable. “CALCRIM No. 3472 is generally a correct
statement of law, which might require modification in the rare case in which a defendant
intended to provoke only a nondeadly confrontation and the victim responds with deadly
force.” (People v. Eulian, supra, 247 Cal.App.4th at p. 1334.) Here, there is no evidence
defendant provoked a nondeadly confrontation, to which Hernandez responded with
deadly force. The testimony of Pena and Garcia showed, at most, the two engaged in a
verbal argument and walked towards one another, before defendant shot Hernandez.
Defendant’s mother’s testimony tended to show that defendant did not provoke a fight at
all and was the victim of a violent assault, which ended in the death of Hernandez at the
hands of a third party. Neither version of events presents the factual circumstances
presented in Ramirez requiring a modification of the contrived self-defense instruction.
Thus, the instruction as given was not overbroad, ambiguous, vague, or misleading under
the facts of this case because it did not communicate to the jury that defendant forfeited
self-defense because he started a fight involving nondeadly force.
       Further, the jury was instructed right before the instruction on contrived self-
defense that “if the defendant used only non-deadly force, and the opponent responded
with such sudden and deadly force that the defendant could not withdraw from the fight,
then the defendant had the right to defend himself with deadly force and was not required
to stop fighting or communicate the desire to stop to the opponent or to give the opponent
a chance to stop fighting.” This instruction adequately communicated the principles
defendant complains were lacking from the contrived self-defense instruction and placed
the contrived self-defense instruction into context. When considering these instructions
together, the jury was properly instructed that defendant did not forfeit self-defense
through the use of nondeadly force.
       Finally, the giving of the contrived self-defense instruction was supported by
substantial evidence. The jury could rationally conclude defendant provoked the conflict
between Hernandez and himself by running into Hernandez with his scooter, throwing his

                                             22
scooter down, and then approaching Hernandez while making “vulgar comments.”
Hernandez responded in kind by “exchanging words” with defendant and putting down
the box and table he was carrying. Defendant then shot Hernandez, killing him. If the
jury determined Hernandez yelled at and approached defendant in response to
defendant’s initial aggressive conduct, defendant did not have the right to use deadly
force to settle the verbal confrontation he arguably created. (See People v. Eulian, supra,
247 Cal.App.4th at p. 1334.) This conduct provided a factual predicate for instructing the
jury on contrived self-defense. Because the instruction was legally correct and
responsive to the evidence, defendant was not prejudiced and his substantial rights were
not implicated. (People v. Franco, supra, 180 Cal.App.4th at p. 719.) For these same
reasons, his counsel was not ineffective for failing to object to the giving of the contrived
self-defense instruction. (See People v. Price, supra, 1 Cal.4th at pp. 386-387 [defense
counsel is not required to make frivolous objections].)




                                             23
                                              B
                            Mutual Combat Or Initial Aggressor
       Defendant’s second argument involves the jury instruction on mutual combat or
initial aggressor. He does not argue this instruction was a misstatement of the law, only
that it was unsupported by the evidence because the evidence did not reflect a mutual
agreement to fight, or that defendant was the initial physical aggressor.1 We disagree.
       “ ‘[M]utual combat’ consists of fighting by mutual intention or consent, as most
clearly reflected in an express or implied agreement to fight. The agreement need not
have all the characteristics of a legally binding contract; indeed, it necessarily lacks at
least one such characteristic: a lawful object. But there must be evidence from which the
jury could reasonably find that both combatants actually consented or intended to fight
before the claimed occasion for self-defense arose.” (People v. Ross (2007) 155
Cal.App.4th 1033, 1046-1047.) Here, Garcia and Pena testified defendant ran into
Hernandez with his scooter and then threw the scooter down before approaching
Hernandez while cursing at him. Garcia’s and Pena’s prior statements indicated
Hernandez engaged in a verbal altercation with defendant by also cursing at defendant


1      The jury was instructed per CALCRIM No. 3471 as follows: “A person who
engages in mutual combat or who starts a fight has a right to self-defense as defined in
instruction 505, or to imperfect self-defense as defined in instruction 571, only if: One,
he actually and in good faith tried to stop fighting; two, he indicated by word or by
contact to his opponent in a way a reasonable person would have understood that he
wanted to stop fighting and that he had stopped fighting; and three, he gave his
component [sic] a chance to stop fighting. [¶] If the defendant meets these requirements,
he then had a right to self-defense if the opponent continued to fight. [¶] However, if the
defendant used only non-deadly force, and the opponent responded with such sudden and
deadly force that the defendant could not withdraw from the fight, then the defendant had
the right to defend himself with deadly force and was not required to stop fighting or
communicate the desire to stop to the opponent or to give the opponent a chance to stop
fighting. [¶] A fight is mutual combat when it began or continued by mutual consent or
agreement. That agreement may be expressly stated or implied and must occur before the
claim to self-defense arose.”

                                              24
before putting down the items he was carrying to walk toward defendant. Garcia
understood their conduct to be “an initiation of a fight.” A jury could reasonably find
from this evidence that both Hernandez and defendant intended to engage in a fight by
implied agreement before defendant shot Hernandez.
       So too did evidence exist for the jury to find defendant was the initial aggressor in
the fight. As described, defendant ran into Hernandez with his scooter and then
approached him while yelling “vulgar comments.” This caused Hernandez to put down
the items he was carrying to respond to defendant’s conduct. A jury could reasonably
conclude defendant intended a physical assault when he approached Hernandez. Indeed,
defendant’s subsequent actions proved he intended some type of physical assault
considering he shot Hernandez seconds after Hernandez put the items he was carrying
down to respond to defendant’s aggressive conduct.
       Because the instruction was responsive to the evidence, defendant’s substantial
rights were not implicated. (People v. Franco, supra, 180 Cal.App.4th at p. 719.) For
these same reasons, his counsel was not ineffective for failing to object to the giving of
the mutual combat or initial aggressor instruction. (See People v. Price, supra, 1 Cal.4th
at pp. 386-387 [failure to raise a meritless objection is not ineffective assistance of
counsel].)
                                              C
                                   Imperfect Self-Defense
       Defendant’s last argument involves an optional portion of the pattern imperfect
self-defense instruction, CALCRIM No. 571, which instructs the jury “[i]mperfect self-
defense does not apply when the defendant, through his own wrongful conduct, has
created circumstances that justify his adversary’s use of force.” He argues that this
instruction is unconstitutionally vague, overbroad, ambiguous, and misleading because
the jury is not told “wrongful conduct” includes “the initiation of a physical assault or the
commission of a felony.” (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) Because

                                              25
the jury did not know what “wrongful conduct” meant, he continues, it could use the
broad language as an excuse to find defendant could not avail himself of imperfect self-
defense simply because he was “spoiling for some kind of argument” that later escalated
into a deadly encounter.
       The language the court used when instructing the jury restates the language in In
re Christian S., supra, 7 Cal.4th at page 773, footnote 1, and has been approved in other
cases. (See People v. Seaton (2001) 26 Cal.4th 598, 664; People v. Hardin (2000) 85
Cal.App.4th 625, 630.) Further, it is not reasonably probable the jury would have
concluded Hernandez was justified to use force simply because defendant started a verbal
argument, contrary to defendant’s contentions. This is particularly true considering the
jury was instructed that defendant could avail himself of self-defense if, in the course of a
nondeadly assault initiated by defendant, Hernandez resorted to deadly force requiring
defendant respond in kind.
       Accordingly, the portion of the imperfect self-defense instruction defendant
challenges was not unconstitutionally vague, overbroad, ambiguous, or misleading.
Because the jury would not have interpreted the instruction to foreclose defendant’s claim
of imperfect self-defense in the event it found defendant started a verbal altercation to
which Hernandez responded with force, defendant was not prejudiced and his substantial
rights were not implicated. (People v. Franco, supra, 180 Cal.App.4th at p. 719.) For
these same reasons, his counsel was not ineffective for failing to object to the giving of
this portion of the imperfect self-defense instruction. (Strickland v. Washington, supra,
466 U.S. at p. 694 [80 L.Ed.2d at p. 698] [counsel is not ineffective when there is no
reasonable probability the result of the proceedings would have been different had
counsel objected].)




                                             26
                                             VI
               The Instructions Allowed The Jury To Consider Defendant’s
               Mental Impairment When Determining Whether He Met The
                  Requirements Of Imperfect And Complete Self-Defense
       Defendant contends the trial court erred by failing to instruct the jury it could use
evidence of his mental impairment when considering the subjective components of
imperfect and complete self-defense and also when determining the applicability of the
contrived self-defense and mutual combat instructions. Defendant argues we should
consider this argument despite his failure to object on these specific grounds at trial. He
claims the resulting error implicates his substantial rights, the court had a sua sponte duty
to instruct on these principles, and his related objection to the mental impairment
instruction regarding the objective component of self-defense should have been sufficient
to “signal[] the issue for the court.” He further argues any objection or request for a
pinpoint instruction on the grounds he now argues would have been futile given the
court’s comments. Finally, defendant argues his counsel was ineffective for failing to
object to these instructions as given.
       We apply the same principles of instructional error analysis as articulated in the
previous section, keeping in mind that we necessarily must examine the merits of
defendant’s claim to determine whether his substantial rights were implicated by the
errors he alleges. (People v. Franco, supra, 180 Cal.App.4th at p. 719.)
       We conclude the trial court correctly conveyed to the jury that it could consider
defendant’s mental impairment when determining whether he acted in imperfect or
complete self-defense, including the related principles of mutual combat and contrived
self-defense. If trial counsel wanted a clarifying instruction, he was required to object on
those specific grounds, and because he did not, the issue of whether a clarifying
instruction about mental impairment was required has been forfeited. (People v. Lang
(1989) 49 Cal.3d 991, 1024.) Because the entirety of the court’s instructions adequately

                                             27
informed the jury defendant’s mental impairment could be considered when determining
imperfect and complete self-defense, defense counsel was not ineffective for failing to
object or requesting a pinpoint instruction.
       The jury was instructed on mental impairment as follows: “You have heard
evidence that the defendant may have suffered from a mental disease, defect, or disorder.
You may consider this evidence only for the limited purpose of deciding whether, at the
time of the charged crime, the defendant acted with the intent and mental state required
for that crime. [¶] The People have the burden of proving beyond a reasonable doubt
that the defendant acted with the required intent or mental state, specifically: malice
aforethought for murder, as defined in instruction 520; and deliberation and
premeditation for first degree murder, as defined in instruction 521. If the People have
not met this burden, you must find the defendant not guilty of murder.”
       Imperfect self-defense requires a showing the defendant actually believed he was
in imminent danger of suffering great bodily injury or being killed and he actually
believed he must immediately use deadly force to defend against the danger, but at least
one of these beliefs was unreasonable. (People v. Humphrey (1996) 13 Cal.4th 1073,
1082.) In addition to conveying this rule, the instruction on imperfect self-defense
(CALCRIM No. 571) told the jury “[a] killing that would otherwise be murder is reduced
to voluntary manslaughter if the defendant killed a person because he acted in imperfect
self-defense.” As we have discussed in section IV, this instruction, in essence, told the
jury that defendant’s acts did not constitute murder if he acted in imperfect self-defense.
(See People v. Genovese, supra, 168 Cal.App.4th at pp. 831-832.) The mental
impairment instruction also told the jury defendant’s mental impairment could be
considered to determine whether he harbored the required intent for the charged crimes,
in essence, also informing the jury defendant’s mental impairment could reduce murder
to manslaughter. Because both imperfect self-defense and mental impairment could be
considered by the jury to reduce murder to manslaughter, in other words to eliminate

                                               28
malice, logically it stands to reason that defendant’s mental impairment could be used for
this same purpose in regard to determining whether defendant harbored the mental state
required for imperfect self-defense. In fact, defense counsel argued this exact point to the
jury during closing argument. After arguing the prosecution proved defendant committed
voluntary manslaughter based on imperfect self-defense and heat of passion, defense
counsel argued, “[t]he [c]ourt will instruct you that you’re allowed to consider his
intellectual disability on these very subjects that I’m talking to you about. Whether he
can premeditate and deliberate. How long it takes him. What [a]ffect his intellectual
disability would have on the ability to reflect, to see a problem, to formulate a response
and implement that response. And, again, the government has to disprove imperfect self-
defense. Disprove heat of passion. But what they’ve done with their own witnesses is
the opposite.”
       When taken together, the mental impairment, imperfect self-defense, and murder
instructions adequately informed the jury it could consider defendant’s mental disability
when determining whether he actually believed in the need for self-defense.
Accordingly, the trial court properly instructed the jury regarding imperfect self-defense
and mental impairment.
       Similar reasoning applies to the complete self-defense instruction. Complete self-
defense requires both actual subjective belief and objective reasonableness. (People v.
Humphrey, supra, 13 Cal.4th at pp. 1093-1095.) A defendant acts in self-defense when
his or her “ ‘acts causing the victim’s death were motivated by an actual (also referred to
as “genuine” or “honest”) belief or perception that (a) the defendant was in imminent
danger of death or great bodily injury from an unlawful attack or threat by the victim and
(b) the defendant’s acts were necessary to prevent the injury; and . . . a reasonable person
in the same circumstances would have had the same perception and done the same
acts.’ ” (Id. at p. 1093.) The jury was instructed as part of the imperfect self-defense
instruction that “[t]he difference between complete self-defense and imperfect self-

                                             29
defense depends on whether the defendant’s belief in the need to use deadly force was
reasonable.” The complete self-defense instruction (CALCRIM No. 505) told the jury
“defendant is not guilty of murder or manslaughter if he was justified in killing someone
in self-defense.” Taken together, these instructions informed the jury that, for the
purpose of complete self-defense, it could properly consider defendant’s mental
impairment when determining his subjective belief in the need for self-defense -- just like
it could when determining whether defendant acted in imperfect self-defense. Then, the
jury could in turn, justify (and thereby excuse) the murder entirely by determining
defendant’s belief in the need for self-defense was reasonable. Thus, while the jury was
not instructed explicitly that it could consider defendant’s mental disability when
considering his claim of complete self-defense, the instructions allowed the jury to do so
and in turn to use its finding to legally justify the killing. Accordingly, the trial court
properly instructed the jury on complete self-defense and mental impairment.
       Defendant also argues the instructions did not properly convey to the jury it could
consider his mental impairment to determine whether he had the mental state required for
mutual combat or contrived self-defense. Mutual combat requires an agreement to enter
into combat, while contrived self-defense requires an intent to create an excuse to use
force. Defendant argues the jury did not know it could consider his mental impairment
when determining these intent elements. The mutual combat and contrived self-defense
instructions, however, expressly related to imperfect self-defense and complete self-
defense and were delivered as part of the complete self-defense instruction. As
described, the imperfect self-defense instruction adequately informed the jury of the
requirements for reduction of murder to voluntary manslaughter, and that it could use
defendant’s mental impairment when making that determination. Thus, reading these
instructions together, the jury was allowed to consider defendant’s mental impairment
when determining his intent relating to all subjective components of complete and
imperfect self-defense, including mutual combat and contrived self-defense.

                                              30
       To the extent defendant argues the jury should have been told a finding of
complete self-defense and imperfect self-defense mitigate or justify malice, that claim is
similarly unavailing. In Genovese, supra, 168 Cal.App.4th at pp. 830-831, we said that
“it does not matter that the CALCRIM instructions failed to inform the jury that
imperfect defense of another would eliminate malice. As we have set forth above, the
jury was told, in a series of instructions, what different kinds of acts and situations would
reduce the crime from murder to voluntary manslaughter. It is immaterial that the jury
was not informed that, in fact, what was going on was that the jury was finding an
‘absence of malice.’ As Justice Corrigan has explained in her Preface to the CALCRIM
jury instructions, ‘our work reflects a belief that sound communication takes into account
the audience to which it is addressed.’ (Judicial Council of Cal., Crim. Jury Instns.
(2008) Preface, p. xi.) ‘Malice is another word of multiple meanings in criminal law. . . .’
(1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 11, p. 213.) The
definition of malice may be interesting to lawyers and judges and law professors, but it
does not aid the task of lay jurors to inform them that, when the defendant acts in an
honest but unreasonable belief in the need to defend another, he is acting without malice.
Consequently, the CALCRIM instructions are not erroneous in their failure to tell the jury
the role that malice (or lack of malice) plays in reducing murder to voluntary
manslaughter.”
       Because we have concluded the instructions allowed the jury to consider
defendant’s mental impairment when determining whether he met the requirements of
imperfect or complete self-defense, the court fulfilled its sua sponte duty to instruct the
jury on the law and defendant’s substantial rights were not affected.
       Further, defense counsel did not request a modification of the mental impairment
instruction, so that the jury would be explicitly told it could use defendant’s mental
impairment when determining imperfect and complete self-defense. Defendant’s
proposed modification to the mental impairment instruction sought to tell the jury it could

                                             31
take mental impairment into consideration when applying the objective component of
complete self-defense and the related principles of mutual combat and contrived self-
defense. The court addressed defendant’s objection concerning the reasonable person
component of the instructions. Neither the court nor defense counsel ever addressed the
subjective components of these same instructions. Instead, it appears the court and
parties understood the interplay of the mental impairment instruction with self-defense
and imperfect self-defense, and how these concepts serve to negate the malice element of
murder. Thus, defendant’s objection was not sufficient to “signal[] the issue for the
court” that he wished to have a pinpoint instruction regarding his mental impairment and
its effect on imperfect and complete self-defense.
       Neither would have an objection or a request for a pinpoint instruction on the
relationship between defendant’s mental impairment and the subjective components of
imperfect and complete self-defense been futile, as defendant claims. Defendant claims
the court’s statement that it was “going to stick with the standard instruction and current
case law” foreclosed any further objection on the issue. We disagree. The court went on
to say in the next breath, “[a]nd if the reasonable person standard is to be changed, it will
be at a higher level than this trial court.” From these comments, it is clear the trial court’s
decision applied only to the reasonable person modification defendant requested and did
not apply to any other aspect of the mental impairment standard. There is nothing in the
court’s comments that indicate it would not have entertained an objection or a request for
a pinpoint instruction regarding the defendant’s mental impairment and the subjective
components of imperfect and complete self-defense.
       Finally, defense counsel was not ineffective for failing to object or request a
pinpoint instruction. As described, the instructions allowed the jury to consider
defendant’s mental impairment when determining whether he could avail himself of
imperfect or complete self-defense. Further, defense counsel talked extensively about the
details of defendant’s mental impairment and the expert’s testimony on the issue during

                                              32
closing argument. He then argued, in regard to imperfect and complete self-defense, that
the jury could consider defendant’s intellectual disability when determining whether he
acted with the required mental states for those offenses. From this argument, it is clear
defense counsel thought the instructions were complete and understandably
communicated to the jury it could consider defendant’s mental impairment when
determining the subjective components of imperfect and complete self-defense. Because
the record illuminates a reasonable explanation for counsel’s failure to object, defense
counsel was not ineffective for failing to object or request a pinpoint instruction
regarding the relationship between mental impairment and imperfect or complete self-
defense. (People v. Jackson, supra, 49 Cal.3d at p. 1188.)
                                             VII
               Defendant Was Not Prejudiced By The Trial Court’s Failure
                         To Instruct On Involuntary Manslaughter
       Defendant contends the trial court had a sua sponte duty to instruct the jury on
involuntary manslaughter as a lesser included offense to murder because the evidence
showed he harbored a mental state short of wanton or conscious disregard for life.
Because defendant’s mental state was not one of malice, he argues, the court was
required to instruct the jury on an unlawful killing during the course of a variety of
misdemeanors, such as assault, battery, or brandishing a firearm, or on the use of
excessive force during the course of self-defense. We conclude it is not reasonably
probable a jury would have convicted defendant of involuntary manslaughter had it been
instructed on the theories defendant advances.
       “A trial court has a sua sponte duty to ‘instruct on a lesser offense necessarily
included in the charged offense if there is substantial evidence the defendant is guilty
only of the lesser.’ [Citation.] Substantial evidence in this context is evidence from
which a reasonable jury could conclude that the defendant committed the lesser, but not
the greater, offense.” (People v. Shockley (2013) 58 Cal.4th 400, 403.) Issues

                                             33
concerning the failure to instruct on a lesser included offense are reviewed de novo.
(People v. Cole (2004) 33 Cal.4th 1158, 1218.)
       Manslaughter is the unlawful killing of a human being without malice. Penal
Code section 192 defines involuntary manslaughter as a killing occurring during the
commission of “an unlawful act, not amounting to a felony; or in the commission of a
lawful act which might produce death, [accomplished] in an unlawful manner, or without
due caution and circumspection.” (Pen. Code, § 192, subd. (b).) Penal Code section 192
has been interpreted to encompass an unintentional killing in the course of a
noninherently dangerous felony committed without due caution or circumspection.
(People v. Burroughs (1984) 35 Cal.3d 824, 835, overruled on another ground in People
v. Blakeley (2000) 23 Cal.4th 82, 88-91; see People v. Bryant (2013) 56 Cal.4th 959, 970;
People v. Brothers (2015) 236 Cal.App.4th 24, 33-35 [“when the evidence presents a
material issue as to whether a killing was committed with malice, the court has a sua
sponte duty to instruct on involuntary manslaughter as a lesser included offense”].)
       Defendant argues his mental impairment and the fact that he shot Hernandez once
during an argument that lasted a matter of seconds supported a finding that he did not
appreciate the risk to life he posed with his actions, thereby requiring an instruction on
involuntary manslaughter. We need not determine whether the trial court had a duty to
instruct the jury on involuntary manslaughter because, even had the court done so, it is
not reasonably probable the result of defendant’s case would have been different.
       “The failure to instruct on a lesser included offense in a noncapital case does not
require reversal ‘unless an examination of the entire record establishes a reasonable
probability that the error affected the outcome.’ [Citation.] ‘Such posttrial review
focuses not on what a reasonable jury could do, but what such a jury is likely to have
done in the absence of the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence supporting a different outcome

                                             34
is so comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.’ ” (People v. Thomas (2012) 53 Cal.4th 771,
814, fn. omitted.)
       Defendant first argues it is reasonably probable the jury would have found him
guilty of involuntary manslaughter, had it been instructed on that offense, based on his
conduct of committing the misdemeanor acts of brandishing a firearm, assault, or battery.
We are not persuaded. As our high court has observed, in the context of brandishing a
firearm, “[a]n unintentional shooting . . . can be murder if the jury concludes that the act
was dangerous to human life and the defendant acted in conscious disregard of life.”
(People v. Thomas, supra, 53 Cal.4th at pp. 814-815.) Thus, in such a scenario, “[i]n
order to find defendant guilty of only involuntary manslaughter, the jury would have had
to conclude both that the shooting was accidental and that defendant had acted without
malice.” (Id. at p. 815.) Here, the jury found defendant intentionally, not accidently,
discharged a firearm causing death during the commission of the murder by finding the
firearm enhancement allegation pursuant to Penal Code section 12022.53, subdivision (d)
true. “Error in failing to instruct the jury on a lesser included offense is harmless when
the jury necessarily decides the factual questions posed by the omitted instructions
adversely to defendant under other properly given instructions.” (People v. Koontz
(2002) 27 Cal.4th 1041, 1085-1086.) Based on this finding, the jury clearly rejected the
notion that defendant discharged the gun unintentionally.
       Defendant attempts to avoid this conclusion by suggesting his intent regarding the
discharge of the firearm does not necessarily inform us how the killing occurred or
defendant’s intent regarding the risk of life he posed to his victim. This argument gets
defendant nowhere. At a minimum, the jury found defendant personally and intentionally
discharged his firearm, proximately causing the victim’s death. In the face of the jury’s
finding, an involuntary manslaughter theory premised on the notion that defendant did
not fire his firearm at the victim would only be viable if there was evidence that,

                                             35
notwithstanding defendant’s personal and intentional discharge of his firearm, it was
defendant’s criminal negligence that caused the victim’s death. For example, if
defendant personally and intentionally fired warning shots in the air to quell further
escalation but, through criminal negligence, ended up hitting the victim instead, an
involuntary manslaughter theory might make sense. Here, however, there was no
evidence from which the jury could find that although defendant personally and
intentionally discharged his firearm, he negligently did so for some purpose other than
shooting the victim. Further, the intentional discharge of a firearm in a criminally
negligent manner has been regarded as an inherently dangerous felony that would support
a verdict of second degree felony murder. (People v. Howard (2005) 34 Cal.4th 1129,
1136; People v. Clem (2000) 78 Cal.App.4th 346, 348, 350-351 [concluding that the
intentional discharge of a firearm in a grossly negligent manner is an inherently
dangerous felony for purposes of the felony-murder rule].) Thus, the argument that the
jury would have likely found him guilty of involuntary manslaughter based on his
conduct of brandishing a firearm is without merit.
       Defendant’s argument the murder occurred during the commission of a
misdemeanor assault or battery is similarly unavailing. Defendant did not commit a
misdemeanor assault when he shot defendant with a gun, he committed assault with a
deadly weapon (Pen. Code, § 245) and personally and intentionally used a firearm during
the commission of that offense. This is a serious felony within the meaning of Penal
Code section 1192.7, subdivision (c)(8). Further, a battery that results in serious bodily
injury is a felony, not a misdemeanor. (Pen. Code, § 243, subd. (d); People v. Wade
(2012) 204 Cal.App.4th 1142, 1147-1148.) The nature and extent of the injury actually
suffered by a victim determines whether the force used was felonious in nature. (People
v. Covino (1980) 100 Cal.App.3d 660, 667, citing People v. Wells (1971) 14 Cal.App.3d
348, 358.) A battery causing serious bodily injury is also a serious felony within the
meaning of Penal Code section 1192.7, subdivision (c)(8). (People v. Moore (1992) 10

                                             36
Cal.App.4th 1868, 1871; see also People v. Arnett (2006) 139 Cal.App.4th 1609, 1613-
1614.)
         Second, defendant argues it is reasonably probable the jury, had it been instructed
on the lesser offense, would have found him guilty of involuntary manslaughter based on
his lawful conduct of self-defense, which was carried out in an unlawful manner by the
use of excessive force. Again, we are not persuaded. Defendant cites no authority for
this proposition besides the statute and jury instruction for involuntary manslaughter, nor
does he argue how the jury could have found him guilty of involuntary manslaughter
based on this theory. Moreover, cursory research reveals that there is no current legal
theory warranting an instruction on principles of involuntary manslaughter based on a
killing committed in the course of imperfect self-defense. (See People v. Blakeley, supra,
23 Cal.4th at p. 91 [“[W]e conclude that when a defendant, acting with a conscious
disregard for life, unintentionally kills in unreasonable self-defense, the killing is
voluntary rather than involuntary manslaughter”].)
         For the foregoing reasons, we conclude there is no reasonable probability that
instructions on involuntary manslaughter under any theory advanced by defendant would
have changed the result. (People v. Thomas, supra, 53 Cal.4th at p. 814.)
                                             VIII
                               There Was No Cumulative Error
         Defendant seeks reversal based on cumulative error. “Under the ‘cumulative
error’ doctrine, errors that are individually harmless may nevertheless have a cumulative
effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Here, we
have found defendant was not harmed by the trial court’s failure to instruct on
involuntary manslaughter (assuming without deciding that failure to instruct was error)
and that no other error occurred. Accordingly, there was no cumulative error here.




                                              37
                                             IX
    Defendant Is Not Entitled To A Franklin Remand But Is Entitled To Remand For
             The Trial Court To Consider Striking The Firearm Enhancement
       Defendant contends he is entitled to remand to the trial court because the record is
not clear that he was afforded a sufficient opportunity to place evidence on the record
necessary for his eventual youth offender parole hearing under Penal Code section 3051.
The People respond that defendant was already afforded this opportunity and failed to
take advantage of it. We agree with the People.
       In Franklin, the California Supreme Court noted that the Eighth Amendment of
the United States Constitution prohibition against cruel and unusual punishment prohibits
a criminal court from sentencing a minor “to the functional equivalent of [life without
parole] for a homicide offense” without taking into account “ ‘how children are different,
and how those differences counsel against irrevocably sentencing them to a lifetime in
prison’ ” (People v. Franklin (2016) 63 Cal.4th 261, 275, 276, quoting Miller v.
Alabama (2012) 567 U.S 460 [183 L.Ed.2d 407].) The court concluded, however, that a
juvenile’s claim that his sentence of 50 years to life was the functional equivalent of life
without parole and thus unconstitutional was moot in light of recent statutory
amendments that provided for parole hearings for youthful offenders. (Franklin, at p.
268; see Pen. Code, § 3051, subd. (a)(1) [A “youth offender parole hearing” is held “for
the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or
younger, or was under 18 years of age as specified in paragraph (4) of subdivision (b) at
the time of his or her controlling offense”] and § 4801, subd. (c) [at a youth offender
parole hearing, the Board of Parole Hearings “shall give great weight to the diminished
culpability of youth as compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity of the prisoner in accordance with relevant
case law”].) The court explained, “Consistent with constitutional dictates, those statutes
provide [the juvenile] with the possibility of release after 25 years of imprisonment

                                             38
[citation] and require the [parole board] to ‘give great weight to the diminished
culpability of juveniles as compared to adults, the hallmark features of youth, and any
subsequent growth and increased maturity.’ ” (Franklin, at p. 268.)
       Because the enactment of the statutes meant that the juvenile was “now serving a
life sentence that includes a meaningful opportunity for release during his 25th year of
incarceration,” his sentence was “neither [life without parole] nor its functional
equivalent” and “no Miller claim arises.” (People v. Franklin, supra, 63 Cal.4th at
pp. 279-280.) Although the court in Franklin held that the juvenile offender “need not be
resentenced,” the court remanded “the matter to the trial court for a determination of
whether [the juvenile] was afforded sufficient opportunity to make a record of
information relevant to his eventual youth offender parole hearing” because it was “not
clear” whether the juvenile had been afforded such an opportunity previously. (Id. at
p. 284.)
       The court advised, “If the trial court determines that [the juvenile] did not have
sufficient opportunity, then the court may receive submissions and, if appropriate,
testimony pursuant to procedures set forth in section 1204 [of the Penal Code] and rule
4.437 of the California Rules of Court, and subject to the rules of evidence. [The
juvenile] may place on the record any documents, evaluations, or testimony (subject to
cross-examination) that may be relevant at his eventual youth offender parole hearing,
and the prosecution likewise may put on the record any evidence that demonstrates the
juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence
of youth-related factors. The goal of any such proceeding is to provide an opportunity for
the parties to make an accurate record of the juvenile offender’s characteristics and
circumstances at the time of the offense so that the Board, years later, may properly
discharge its obligation to ‘give great weight to’ youth-related factors [citation] in
determining whether the offender is ‘fit to rejoin society’ despite having committed a



                                             39
serious crime ‘while he was a child in the eyes of the law.’ ” (People v. Franklin, supra,
63 Cal.4th at p. 284.)
       Here, defendant points out that “[n]o mention of youth-related factors or indeed
any significant arguments on mitigating factors was made on the record at sentencing,”
“[t]he probation report contains no statements or letters from [defendant] or his family,”
and “as to mitigating factors the report states ‘none’ except youthful age (then 21).”
From this, defendant concludes that “ ‘the probation report and sentencing
transcript, together, do not remotely address all five . . . youth sentencing factors that the
parole authority must give weight to in assessing whether to release [defendant] on
parole,’ ” and therefore “ ‘ “it is not clear whether [the defendant] had sufficient
opportunity to put on the record the kinds of information that [Penal Code] section[s]
3051 and 4801 deem relevant at a youth offender parole hearing.” ’ ” For that reason, he
requests “ ‘a modest limited remand’ ” “ ‘to afford [him] such an opportunity if the court
finds he was not afforded one at the original sentencing.’ ”
       We are not persuaded that defendant is entitled to a remand under Franklin.2
Unlike the defendant in Franklin, defendant was 19 years old at the time of his offense
and thus he was not subjected to a sentence that violated constitutional principles
prohibiting a minor from being sentenced to the functional equivalent of life without
parole without considering how minors are different from adults and how those
differences counsel against irrevocably sentencing a minor to a lifetime in prison.
Moreover, unlike the defendant in Franklin, defendant was not sentenced at a time when




2      We previously issued an opinion in this case reaching the same conclusion, but the
Supreme Court granted defendant’s petition for review and transferred the case back to us
“with directions to vacate [our] decision and reconsider whether defendant is entitled to
make a record before the superior court of ‘mitigating evidence tied to his youth’ in light
of” Franklin and Penal Code sections 3051 and 4801, subdivision (c). Having
reconsidered the issue, we reach the same conclusion we reached before.

                                              40
youth offender parole hearings were not yet part of California law. Defendant is entitled
to a youth offender parole hearing under Penal Code section 3051, but not because he
was sentenced to the functional equivalent of life without parole for a crime committed
when he was a minor. Rather, he is entitled to a youth offender parole hearing only
because the California Legislature decided, effective beginning in January 1, 2016, that
youth offender parole hearings should be afforded to “any prisoner who was under 25
years of age or younger or was under 18 years of age as specified in paragraph (4) of
subdivision (b) at the time of his or her controlling offense.” (Pen. Code, § 3051, subd.
(a)(1), as amended by Stats. 2017, ch. 675, § 1.) Thus, unlike the situation in Franklin,
when defendant was sentenced in this case on April 8, 2016, Penal Code section 3051
was already in place and had already been amended to encompass offenders like him
under 25 years of age or younger, and subdivision (c) of Penal Code section 4801 already
identified the various factors to be considered at a youth offender parole hearing. Thus
unlike the defendant in Franklin, defendant had both the opportunity and incentive to put
information on the record related to a future youth offender parole hearing.
       Under these circumstances, there is no reasonable basis for concluding, as
defendant argues, that defendant was denied a sufficient opportunity to put on the record
the kinds of information that Penal Code sections 3051 and 4801, subdivision (c) deem
relevant at a youth offender parole hearing. It is true, as defendant notes, that defendant’s
sentencing hearing occurred before our Supreme Court decided Franklin, but that makes
no difference given that it was not the decision in Franklin that gave rise to defendant’s
right to a youth offender parole hearing. Instead, as we have explained, it was the
amendment to Penal Code section 3051 that took effect months before defendant’s
sentencing hearing that gave rise to that right, and on the record here there is no reason to
believe that defense counsel did not have every reasonable opportunity and incentive to
make an adequate record for defendant’s eventual youth offender parole hearing. (See
People v. Cornejo (2016) 3 Cal.App.5th 36, 68-70 [remand not necessary when the

                                             41
defendants were given an opportunity to make a record and provided relevant information
for an eventual youth offender parole hearing].)
       During defendant’s sentencing hearing, the court asked defense counsel multiple
times whether he wanted to add anything to what was contained in the 11-page probation
report. Defense counsel said that he had nothing to add to the probation report, including
documents, and the probation report contained no errors or omissions. Further, defense
counsel stated that the “probation report notated the mitigating factors that [he] would
bring up.” The probation report included information regarding defendant’s
psychological and medical problems, along with a summary of Dr. Miller’s report. This
summary included details of defendant’s home life, education, psychiatric treatment,
criminal history, and IQ test.
       Given the trial court’s numerous invitations to defense counsel to add information
to the record and defense counsel’s statements that the probation report was sufficient, we
conclude defendant “was afforded sufficient opportunity to make a record of information
relevant to [defendant’s] eventual youth offender parole hearing.” (See People v.
Franklin, supra, 63 Cal.4th at p. 284.) Thus, there is no basis for a Franklin remand here.
       Defendant further argues, however, that under a recent change to Penal Code
section 12022.53, his case must be remanded so that the trial court can exercise its newly-
granted discretion to decide whether to strike the firearm enhancement imposed here.
The People concede that such a remand is required, and we agree.
       As we have noted, defendant’s sentence in this case includes a sentence
enhancement of 25 years to life under subdivision (d) of Penal Code section 12022.53 for
personally and intentionally discharging a firearm and proximately causing death to a
person other than an accomplice. At the time of his sentencing, the trial court had no
power to strike the firearm enhancement or impose a sentence other than 25 years to life.
Under a recent amendment to Penal Code section 12022.53, however, which is effective
January 1, 2018, trial courts will have the power under subdivision (h) of the statute, “in

                                             42
the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] strike or
dismiss an enhancement otherwise required to be imposed by this section. The authority
provided by this subdivision applies to any resentencing that may occur pursuant to any
other law.”
       Defendant contends this amendment applies to his case because the Legislature
expressly provided for the retroactive application of the amendment “by specifying the
new rule applies to ‘any resentencing that may occur.’ ” He further contends, based on In
re Estrada (1965) 63 Cal.2d 740, and related cases, that the amendment applies to him
because “regardless of statutory intent, settled case law affords defendants in non-final
cases the retroactive benefit of subsequent legislative ameliorations in punishment.”
       The People agree that because the amendment provides discretion to impose a
lesser sentence, and because there is nothing in the amendment to suggest the Legislature
intended it to apply prospectively only, the presumption that the amendment applies
retroactively prevails. The People do not argue that remand in this instance would be
futile (see People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896), but instead agree that
here the case must be remanded to allow the trial court to exercise its newly-granted
discretion to decide whether to strike the firearm enhancement.
       We agree with defendant and the People that remand is appropriate here. Under
Estrada, “when a statute mitigating punishment becomes effective after the commission
of the prohibited act but before final judgment the lesser punishment provided by the new
law should be imposed in the absence of an express statement to the contrary by the
Legislature.” (People v. Francis (1969) 71 Cal.2d 66, 75-76.) As the Supreme Court
stated in Estrada, “When the Legislature amends a statute so as to lessen the punishment
it has obviously expressly determined that its former penalty was too severe and that a
lighter punishment is proper as punishment for the commission of the prohibited act. It is
an inevitable inference that the Legislature must have intended that the new statute



                                             43
imposing the new lighter penalty now deemed to be sufficient should apply to every case
to which it constitutionally could apply.” (In re Estrada, supra, 63 Cal.2d at p. 745.)
       Here, the amendment to subdivision (h) of Penal Code section 12022.53, which
will take effect before the judgment in this case is final, necessarily reflects a legislative
determination that the previous bar on striking firearm enhancements was too severe, and
that trial courts should instead have the power to strike those enhancements in the interest
of justice. Moreover, because there is nothing in the amendment to suggest any
legislative intent that the amendment would apply prospectively only, we must presume
that the Legislature intended the amendment to apply to every case to which it
constitutionally could apply, which includes this case. Accordingly, remand is
appropriate in this case to allow the trial court to exercise its discretion as to whether to
strike the firearm enhancement.3




3       Although we are remanding the case specifically to allow the trial court to
exercise its discretion under the recent amendment to subdivision (h) of Penal Code
section 12022.53, our determination that defendant is not entitled to remand under
Franklin does not necessarily preclude the trial court from supplementing the record for
purposes of defendant’s eventual youth offender parole hearing, should defendant ask to
do so and should the trial court determine that such supplementation would be
appropriate. Indeed, it may well be that information offered to the trial court to assist in
its determination of whether to exercise its discretion to strike the firearm enhancement
will be the same sort of information that would be offered under a Franklin remand in
any event. Accordingly, we leave it to the trial court in the first instance to decide what
additional information may be entered into the record on remand.

                                              44
                                      DISPOSITION
       Defendant’s conviction is affirmed, but the case is remanded to the trial court for
further proceedings consistent with this opinion.


                                                    /s/
                                                    Robie, Acting P. J.



We concur:



/s/
Butz. J.



/s/
Duarte, J.




                                            45
