People v. Davis

Full title: THE PEOPLE, Plaintiff and Respondent, v. ASIA TASHAY DAVIS, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jun 11, 2020

No. F076884 (Cal. Ct. App. Jun. 11, 2020)

Opinion

F076884

06-11-2020

THE PEOPLE, Plaintiff and Respondent, v. ASIA TASHAY DAVIS, Defendant and Appellant.

Tracy A. Rogers, 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, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

FRANSON, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF164789C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Tracy A. Rogers, 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, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

Asia Tashay Davis, along with codefendants Rayon Norwood and Robert Hunt, was charged with multiple criminal offenses and a number of gang and gun enhancements. Davis was charged with seven counts related to a home invasion robbery that occurred on July 6 and 7, 2016: in count 1, attempted murder (Pen. Code, §§ 664/187, subd. (a))¹; in count 2, robbery of an inhabited dwelling in concert with two or more people (§ 213, subd. (a)(1)(A)); in count 3, torture (§ 206); in count 4, aggravated mayhem (§ 205); in count 5, first degree burglary (§ 460, subd. (a)); in count 6, participation in a criminal street gang (§ 186.22, subd. (a)); and in count 8, elder abuse (§ 368, subd. (b)(1)).² It was further alleged that the attempted murder in count 1 was committed with premeditation and deliberation (§ 189); that the offenses charged in counts 1 through 5 and count 8 were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)); and that Davis was a principal in counts 1 through 4 and, in the commission of those offenses, at least one principal used a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)(1)).

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

2 Counts 7 and 9 relate only to Norwood; Hunt was only charged in counts 10-12.

Davis was also charged with three counts relating to a home invasion robbery that occurred on May 10, 2016: in count 10, robbery of an inhabited dwelling in concert with two or more people (§ 213, subd. (a)(1)(A)); in count 11, kidnapping for the purpose of robbery (§ 209, subd. (b)(1)); and in count 12, participation in a criminal street gang (§ 186.22, subd. (a)). It was further alleged that Davis committed the offenses charged in counts 10 and 11, for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that she was the principal in the commission of the offense in which at least one principal used a firearm (§ 12022.53, subds. (b), (e)(1)).

On September 27, 2017, trial began with separate juries for Davis and Norwood.³ On October 30, 2017, the jury advised the trial court that it was unable to reach a verdict on count 1. Shortly thereafter, the jury found Davis guilty on all other charges relating to her, but for counts 4 and 11, wherein the jury found Davis guilty of the lesser included offenses of mayhem (§ 203) and false imprisonment with violence (§ 236). The jury found the gang and gun enhancements associated with the guilty verdicts true. The trial court declared a mistrial on count 1, and that charge was later dismissed.

3 Hunt was not tried at the same time because of an issue of competency.

The trial court sentenced Davis as follows: on count 3, torture (§ 206), life with minimum parole eligibility of seven years, plus 25 years for the gun enhancement (§ 12022.53, subds. (d), (e)(1)). On count 2, robbery of an inhabited dwelling in concert with two or more people (§ 213, subd. (a)(1)(A)), the low term of three years, plus 25 years to life for the gun enhancement (§ 12022.53, subds. (d), (e)(1)), to be served consecutive to the sentence imposed on count 3. On count 4, mayhem (§ 203), the low term of two years plus 10 years to life for the gang enhancement (§ 186.22., subd. (b)(1)), both stayed.⁴ On count 5, first degree burglary (§ 460, subd. (a)), the low term of two years plus five years for the gang enhancement (§ 186.22, subd. (b)(1)), both stayed. On count 6, the gang offense (§ 186.22, subd. (a)), the low term of 16 months, stayed. On count 8, elder abuse (§ 368, subd. (b)(1)), the low term of two years plus three years for the gang enhancement (§ 186.22, subd. (b)(1)), both stayed. On count 10, the May 2016 robbery of an inhabited dwelling in concert (§ 213, subd. (a)(1)(A)), life with a minimum parole eligibility date of 15 years, to be served consecutive to the sentence in count 2, plus 10 years, stayed, for the gun enhancement (§ 12022.53, subds. (b), (e)(1)). On count 11, kidnapping for purpose of robbery, the low term of 16 months plus three years for the gang enhancement, both stayed. And on count 12, the gang offense (§ 186.22, subd. (a)), the low term of 16 months, stayed.

4 The trial court dismissed the gun enhancements under section 12022.53, subdivisions (d) and (e)(1).

On appeal, we reject Davis's assertions that the verdicts rendered do not reflect her convictions in several counts and enhancements; that the trial court failed to adequately address the jury's questions during deliberation; that there is insufficient evidence to prove the nontarget crimes were the natural and probable consequence of the target crimes; that there is insufficient evidence to prove the gang enhancements; that the prosecutor committed prejudicial error in argument; that trial counsel rendered ineffective assistance; and that her sentence was grossly disproportionate to her culpability or cruel and/or unusual. We agree with her argument that there is insufficient evidence of the gang offense; that section 654 precludes punishment for both robbery and torture; and that the case must be remanded for the trial court to use its discretion on the gun enhancements.

STATEMENT OF THE FACTS

The May 2016 Home Invasion Robbery (Counts 10-12)

On May 10, 2016, at about 2:30 p.m., Maria Z. answered the doorbell of her home and found Davis standing there. Also home with Maria Z. were her four-year-old daughter and two-year-old son. Davis asked Maria Z. for jumper cables because her car had broken down. Maria Z. said she did not have any and Davis began walking away. Maria Z. followed Davis for a short distance and told her a neighbor who owned a tire shop might have some. Maria Z. went back into the house, sent the kids to play in the backyard, and began folding laundry.

The doorbell rang again, and this time Davis asked to use a telephone. After Maria Z. retrieved her telephone and handed it to Davis, a man who had been standing facing the street near the house came toward Maria Z. and was screaming at her. The man had his undershirt pulled up over his face and had a gun.

Maria Z. retreated into the house, screaming, and the man and Davis followed her. The man told Maria Z. to stop screaming or he would kill her and the children. Davis took Maria Z.'s car keys from her, but Maria Z. did not see Davis after that. The man then motioned Maria Z. toward the master bedroom while walking behind her with the gun.

Once inside the bedroom, the man told Maria Z. to open the safe, which she was able to do on the second try. The man emptied the contents of the safe, which included cash, paperwork, jewelry, gold and silver coins, guns and ammunition. The man asked where the second safe was. When Maria Z. said there was no second safe, the man again threatened to kill her and the children.

As the first man was loading the items into a suitcase, a second man wearing a ski mask entered the room. He also had a handgun. When the second man moved Maria Z. to another room, she saw a third man, wearing a bandana, who would occasionally walk over to the window facing the street and look out. He also had a gun.

When a car outside began honking, the first man told Maria Z. to lie on the floor and count to 100 and not look outside, or he would kill her. Maria Z. counted to 60 and then ran outside, grabbed her children, ran to the neighbor's house and called 911. Maria Z. estimated that the entire incident lasted 10 minutes.

When Maria Z. returned to her house, she realized that the entire house had been ransacked, the items of the safe were gone, as well as a cell phone, car keys and computer devices.

Maria Z. was shown a number of photographic lineups, but she was only able to identify Davis as the woman who knocked on her door and entered her home with the three masked men.

A beanie later found in Maria Z.'s older daughter's room was submitted for DNA analysis and codefendant Hunt was determined to be a major contributor of the DNA found on the beanie. The July 2016 Home Invasion Robbery (Counts 1-6 , 8)

On the evening of July 6, 2016, 80-year-old Florence M. was home when someone rang the doorbell. When Florence M. answered the door, Davis asked to use the telephone because she was having car trouble. Florence M. opened the wrought iron security door a few inches and gave Davis the phone. As she did so, three men, who had been hiding in the bushes, slammed open the door and entered the home. According to Florence M., Davis followed the men inside, but she did not see her in the house thereafter. Florence M. could not identify the men in subsequent photographic lineups, but described them as being Black, in their 20s, and of average height and build.

Once inside the home, the men moved Florence M. down the hall to the room she used as an office and told her to open the safe. She thought one of the men had a gun. Florence M. told them she could not open the safe, and the men threatened to shoot her if she did not. Florence M. told the men she would try to call her son to help open the safe, but when she did so, he was not home. Florence M. told the men, "I, guess you are going to have to shoot me."⁵

5 Portions of the original reporter's transcript and clerk's transcript is rendered in all capital letters. All quotations from the clerk's and reporter's transcripts in this opinion are modified to reflect conventional capitalization.

Sometime later, one of the men struck Florence M. on her head. She did not see who struck her, but believed she was hit with a gun, because the object was heavy and scratched her forehead. Florence M. went in and out of consciousness, and at one point, remembered being on the floor in the master bedroom.

When Florence M. fully regained consciousness around 7:00 a.m. the following day, she was lying on the floor in the hallway. She activated her medical alert device and her son, David, was called. When he arrived, he found the security gate and front door open and his mother lying on the floor in the hallway. There was a lot of blood on the floor. Florence M. had sustained injuries to her head, legs, arms, and stomach. David called 911.

Florence M. testified that she had been kicked in the stomach, arms, and legs and shot in the ankle. Florence M. told an officer that one of the men had a dark colored semiautomatic handgun.

Inside Florence M.'s home, the safe had been ripped from the closet wall and taken from the house. The contents of the safe had included old gold and silver coins, a Smith and Wesson seven-millimeter Magnum deer rifle, a Remington ".700 BDS" deer rifle, a .22 Hornet gun, an 870 Wingmaster, a 12-gauge shotgun, and a .50-caliber black powder rifle, along with various rounds of ammunition. Some jewelry was taken from Florence M.'s bedroom, including her wedding ring, an opal ring, a necklace, and a watch.

Florence M. sustained a gunshot wound to her right leg that fractured her tibia, her arms were severely bruised, and she suffered head pain as a result of being struck. She was hospitalized for three days, readmitted for a blood transfusion, and then spent five months in a rehabilitation center. Thereafter, she moved into an apartment in a senior center.

After the robbery, Florence M. was unable to walk, garden or shop by herself, and she had to use a walker to get around. At the time of trial, she was living in fear and still on pain medication. She had lived in her residence since 1989, but could not move back in after the robbery because she was too afraid to live there.

Security cameras outside of Florence M.'s residence showed Davis knocking on Florence M.'s front door and three men entering the home. Still photographs from the security camera were introduced into evidence. Some of the photos were used to identify and arrest Davis. One photograph showed Davis with a distinct tattoo on her right thigh. Other photographs depicted the men who entered the home, one of whom was wearing body armor, another showing a man grabbing a black small-framed semiautomatic firearm from his back pocket. Another photograph showed a man with a distinct script lettering tattoo; codefendant Norwood had similar tattoos on his body.

A blue handicap placard found on the street near the Florence M. residence eventually led to Norwood's arrest. When he was arrested, Norwood had Florence M.'s credit cards and Costco card in his front pocket. Davis's Statement to Law Enforcement

After Davis was arrested in Compton, California on July 13, 2016, she waived her Miranda ⁶ rights and agreed to speak to detectives. According to Davis, she was walking to her mailbox around 9:00 p.m. on July 6, 2016, when a car pulled up beside her, carrying Norwood, another man called "Slug," and a man she did not know. Davis said the men were from "the country" in Bakersfield. The officer who interviewed Davis testified that the reference to "country" refers to the Country Boy Crips traditional street gang territory, although it did not necessarily mean everyone in the area was a gang member. Davis did not mention the Country Boy Crips in her interview.

6 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

Davis told the officer that she got into the car with the three men and thought they were going to get high. As they were driving, Slug pointed to a house that turned out to be the Florence M. residence, and said that was the "lick," referring to a home to be burglarized. Norwood, Slug and Davis discussed robbing the residence. Slug was familiar with the home and knew the woman who lived there had money and a safe. Davis agreed to knock on the door to get the victim to open it, thinking she was going to be paid for doing so. Davis said she participated in the robbery because of her "love" for Norwood.

Davis said she walked up to the front door and when Florence M. answered, Davis told Florence M. her car broke down and she needed jumper cables. Florence M. said she did not have any and Davis walked back to where Norwood and Slug were hiding and explained what had happened. Slug instructed her to go back and ask to use Florence M.'s telephone, which she did. When Florence M. opened the door to give Davis the phone, Norwood and Slug pushed past her and entered the residence. Davis knew Norwood and Slug had guns.

Davis then walked away from the front door and back to the vehicle, where she waited. She claimed not to know what happened inside the house. A couple of hours later, Slug returned to the vehicle and drove it to the front of the Florence M. residence to pick up Norwood. Slug mentioned that the safe in the house could not be moved and he was looking for someone with a pickup truck they could load the safe onto. Davis was not sure what happened to the third man who entered the residence.

Davis provided officers with an address for Slug, who was identified as codefendant Hunt. She also identified Hunt from a photographic lineup. Davis identified herself in the surveillance video, and identified Norwood in the video as well.

In October 2016, while in custody, Davis was interviewed about the May 2016 robbery. After she waived her Miranda rights, she first said she had heard about the robbery but did not know anything about it. When advised of the evidence connecting her to the offense, she stated that she was there with Norwood, Hunt, and a third man she did not know. The three men told Davis they were going to get some money and instructed her to knock on Maria Z.'s door and ask to use the telephone while they hid around the side of the house. When Maria Z. opened the door, Davis asked to use her phone, and Norwood, Hunt and the third man rushed into the house. Davis said she then screamed and ran off. Davis said Norwood entered first, followed by Hunt. Davis described what the men were wearing, which matched Maria Z.'s description. She also stated that all three had their faces covered, with a beanie, shirt, or mask.

Davis told the officer that she had known Norwood since she was 14 years old and the two had had a romantic relationship in the past. She claimed not to know what was happening until the men covered their faces and rushed the door. Davis claimed the only reason she participated in the robbery was because she was afraid of Norwood, who would become angry with her if she said no. Davis later identified the third man as Brandon McClinton. Gang Evidence

Officer Frederick Martinez testified for the prosecution as a gang expert on the Country Boy Crips criminal street gang. According to Officer Martinez, there were about 350 to 500 Country Boy Crips in Bakersfield; the gang's primary color was a powder blue; they associate with the letter "S"; they often called themselves Southside Crips as they were the most southern gang in Bakersfield; and their territory, bordered by certain streets, was often called "the country," although that did not mean everyone there was a gang member. Neither the Maria Z. nor the Florence M. residence was in Country Boy Crip territory. Officer Martinez testified that gang crimes are committed more often outside gang territory for the purpose of sending a message to rival gangs.

Officer Martinez testified the Country Boy Crips were involved in an ongoing pattern of criminal activity and that the gang's primary criminal activities included homicide, assault with a deadly weapon, illegal firearm possession, robbery, burglary, criminal threats, witness intimidation, possession of stolen property, and narcotic sales. Officer Martinez acknowledged that not every crime committed by a gang member was gang related.

Officer Martinez testified that the ultimate goal of a gang member and the gang as a whole is respect, which was achieved by committing crimes for the benefit of and at the direction of the gang. The ultimate act to gain respect was to "take down" a rival gang member, and the ultimate symbol of power for a gang member was the possession of a gun.

Two predicate gang offenses committed by Country Boy Crips were described. The first, felony gun possession and participation in a criminal street gang, committed by Adolphus Newell, an active member of the Country Boy Crips, on September 5, 2014. The second, residential burglary and participation in a criminal street gang, committed by Tyrin Blount, an active member of the Country Boy Crips, in April of 2012.

Officer Martinez opined that Norwood was an active member of the Country Boy Crips at the time of the offenses, based on his multiple gang tattoos, his association with other Country Boy Crips, and his own admission that he was a gang member. In addition, the beanie found at the Maria Z. residence had the letter "S" on it, signifying Southside Crips. Officer Martinez noted that, in the videotape of the Florence M. home invasion, Norwood is shown as being in charge and directing the others.

Officer Martinez opined that Davis was not a gang member before the crimes occurred, but that she became an associate of the gang after she committed the home invasion robberies. According to Officer Martinez, Davis was an active participant in a criminal street gang during both robberies given the role she played. Officer Martinez opined that, since Davis was involved in two similar home invasions, it showed a pattern and that she was acting under the direction of the gang, with Norwood in charge.

Based on a hypothetical that mirrored the facts of the home invasion robberies, Officer Martinez opined that the crimes were committed for the benefit of, in association with, and at the direction of the Country Boy Crips. According to Officer Martinez, the items taken were beneficial to the gang, particularly the guns, which provided the power to maintain and take over additional territory. Officer Martinez also opined that the shooting of a resident who does not open a safe during a home invasion robbery would benefit the gang because it would show that the gang would not take "no" for an answer and would use any means necessary to get what it wanted. Leaving a victim bleeding and helpless increased the reputation of the gang in the community for committing heinous crimes.

On cross-examination, Officer Martinez acknowledged that there was no evidence in either home invasion robbery that the perpetrators identified themselves as Country Boy Crips, used gang signs, or wore any blue clothing. Although the beanie belonging to Hunt had a blue letter "S", other gangs used the letter S and the particular shade of blue was not the color normally associated with the Country Boy Crips. In addition, no gang graffiti was left behind claiming responsibility for the robberies, and Officer Martinez found nothing on social media claiming responsibility. There was no evidence of the Country Boy Crips directing the perpetrators to commit the crimes, and there was no direct proof that the proceeds of the home invasions went to the gang.

DISCUSSION

I. MUST THE VERDICTS FOR COUNTS 2 AND 10, ROBBERY IN CONCERT, BE VACATED BECAUSE THE VERDICTS RENDERED WERE FOR SECOND DEGREE ROBBERY?

Davis contends first that her convictions for first degree robbery in concert (§ 213, subd. (a)(1)(A)) in counts 2 and 10 must be vacated pursuant to the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution because the corresponding language in the verdict forms and a related jury instruction establishes that the jury found her guilty of second degree robbery. We disagree. Background

Count 2 (the July 2016 robbery) and count 10 (the May 2016 robbery) of the amended information charged that Davis did "willfully and unlawfully commit a robbery within an inhabited dwelling house while voluntarily acting in concert with two or more other persons, within the meaning of Penal Code section 213(A)(1)(A), a felony."⁷

7 The correct citation is section 213, subdivision (a)(1)(A).

Following the presentation of evidence, the trial court and parties discussed the proposed jury instructions. No objections were raised by either party regarding the proposed instructions relating to robbery.

The jury was subsequently instructed on the robbery counts with CALCRIM No. 1600, in relevant part, as follows:

"The defendant is charged in counts 2 and 10 with first degree robbery in violation of Penal Code section 213(A)(1)(A).[⁸] [¶] To prove that defendant is guilty of this crime, the People must prove that: [¶] One, the defendant took property that was not his or her own; [¶] The property was in the possession of another person; [¶] The property was taken from the other person or his or her immediate presence; [¶] The property was taken against that person's will; [¶] The defendant used force or fear to take the property or to prevent the person from resisting; [¶] And when the defendant used force or fear, he or she intended to deprive the owner of the property permanently."

It was also instructed with CALCRIM No. 1601, in relevant part, as follows:

"Defendant is charged in counts 2 and 10 with first degree robbery by acting in concert with the co-defendant and/or other coparticipants, in violation of Penal Code section 213(A)(1)(A).[⁹] [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] One, the defendant personally committed or aided and abetted a robbery; [¶] When he or she did so, the defendant voluntarily acted with two or more other people who also committed or aided and abetted the commission of the robbery; [¶] And three, the robbery was committed in an inhabited dwelling."

And finally, the court instructed with CALCRIM No. 1602:

"[Robbery] is divided into two degrees. If you conclude that the defendant committed a robbery, you must then decide the degree. [¶] To prove that defendant is guilty of first degree robbery, the People must prove that: [¶] The robbery was committed in an inhabited dwelling. A dwelling is inhabited if someone lives there and either is present or has left but intends to return. [¶] All other robberies are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the robbery was first degree rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree robbery."

8 The written instruction citation was to "213(a)(1)(a)."

9 See footnote 7.

In closing argument, the prosecutor explained the robbery instructions, specifically what was required to prove first degree robbery, including that Davis "voluntarily acted with two or more people," and that the first degree robbery counts "can't [be done] alone," but had to be done with "two other people."

The jury subsequently found Davis guilty on both counts 2 and 10. The verdict form on each count states: "We, the Jury, empaneled to try the above entitled cause, find the defendant, ASIA DAVIS, guilty of a felony, to wit: first degree robbery, in violation of section 213(a)(1)(a) [sic] of the Penal Code." Applicable Law and Analysis

Section 211 defines robbery as the "felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) Section 212.5 defines first degree residential robbery as a robbery perpetrated in an "inhabited dwelling house." (§ 212.5, subd. (a).) Home invasion robbery is first degree residential robbery committed "in concert" with two or more other persons. (§ 213, subd. (a)(1)(A).) This statute "operates as a sentencing factor or an enhancement." (In re Jonathan T. (2008) 166 Cal.App.4th 474, 482.) "An allegation that robbery was committed in concert within the meaning of section 213, subdivision (a)(1)(A), is an additional element of the crime of first degree robbery; it does not create a separate offense." (People v. Hutchinson (2018) 20 Cal.App.5th 539, 550.)

Davis argues that, because section 213, subdivision (a)(1)(A) is not a crime, per se, and the verdict form referenced only the statute and not the elements of "in concert" and "within an inhabited dwelling," the jury necessarily found Davis guilty of second degree robbery, not first degree robbery in concert. Davis's argument is based on the assertion that the language in the verdict forms defining the offense corresponded with CALCRIM No. 1600, what the trial court erroneously called "first degree robbery in violation of Penal Code section 213(a)(1)[(A)]." According to Davis, this parallel language in the instruction and verdict forms establishes that the verdicts were based solely on CALCRIM No. 1600. And since CALCRIM No. 1600 defines the crime of second degree robbery, not first degree robbery or robbery in concert, the guilty verdicts for counts 2 and 10 express only that the jury found her guilty of the lesser offense of second degree robbery.

Davis argues further that, in order to have found her guilty of robbery in concert, the trial court was required to instruct the jury that it was required to make a finding on the "in concert" allegation and the verdict forms were required to contain a space for the jury to state its findings on the "in concert" allegation.

We disagree. First, we note Davis forfeited this argument on appeal. The failure to object to a court's actions regarding verdict forms forfeits the issue on appeal. Furthermore, Davis's argument has no merit. As stated in People v. Camacho (2009) 171 Cal.App.4th 1269, 1272-1273:

" ' " 'A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court.' [Citations.]" [Citations.] "The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]" [Citation.]' [Citations.] '[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice. [Citations.]' [Citation.] ' "There are innumerable authorities which declare that the form of the verdict is immaterial if the intention to convict of the crime charged is unmistakably expressed." ' "

Despite the language in the verdict forms relating to the robbery charges, there is unmistakable evidence that the jury intended to find Davis guilty of first degree robbery in concert on both counts 2 and 10. Such was the language of the amended information. The jury was instructed on first degree robbery in concert and the difference between first and second degree robbery by the giving of CALCRIM Nos. 1600, 1601, and 1602. We presume the jurors " ' "generally understand and follow instructions." ' " (People v. Jackson (2014) 58 Cal.4th 724, 767.) And the prosecutor's remarks in closing, arguing for a finding of guilt on first degree robbery in concert, explained all the elements necessary to so convict, specifically stating, "You can't do it alone. You can't do it with one other person. It has to be two other people." We find no uncertainty of the jury's intent in this regard.

Even assuming error in the verdict forms, any such error was harmless under the beyond a reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18, 26) and there was no probability that a result more favorable to Davis would have been reached in the absence of the error (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence that Davis committed first degree robbery in concert as an aider and abettor in both instances is overwhelming. There is no dispute that both the July and May 2016 robberies were of inhabited dwellings. And the evidence that both robberies were committed with two other people was clear. In fact, Davis's trial counsel conceded Davis's guilt as to both counts in closing argument, stating she was present, aided and abetted, and "did facilitate" the robberies, but that she did not intend for the mayhem and abuse that occurred during the course of the robberies.

II. MUST THE TRUE FINDING ON THE GANG-RELATED FIREARM ENHANCEMENT OF DISCHARGE OF A FIREARM CAUSING GREAT BODILY INJURY FOR COUNTS 2 AND 3 BE VACATED BECAUSE THE VERDICTS DID NOT FIND THAT ENHANCEMENT TRUE?

Davis next contends the jury's true findings as to the gang-related firearm enhancements charged in association with counts 2 (July 2016 robbery in concert) and count 3 (torture) must be vacated because neither the verdict nor the corresponding instruction show "personal discharge causing great bodily injury," as required by section 12022.53, subdivisions (d) and (e)(1). Instead, the jurors found "personal use," and therefore the findings must be vacated and reduced to a finding of "use" under subdivisions (b) and (e)(1) of section 12022.53 instead. We disagree. Background

The information alleged that Davis was subject to the enhancement provided in section 12022.53, subdivisions (d) and (e)(1), for counts 1, 2, 3, and 4,¹⁰ in that Davis "was a principal in the foregoing offense, and, in the commission of the offense, at least one principal intentionally and personally discharged and personally used a firearm, and proximately cause great bodily injury or death ...."

10 The jurors subsequently deadlocked on count 1 and that count was dismissed. For count 4, Davis was found guilty of a lesser offense, and the trial court dismissed the enhancement as to that charge.

The trial court instructed the jury on the gang-related enhancement with CALCRIM No. 1402, in relevant part, as follows:

"If you find the defendant guilty of the crimes charged in counts 1, 2, 3 and 4 and you find that the defendant committed those crimes for the benefit of, at the direction of, or in association with a criminal street gang, with the intent to promote, further, or assist in any criminal conduct by gang members, you must then decide whether for each crime the People have proved the additional allegation that one of the principals personally and intentionally discharged a firearm during that crime that caused great bodily injury. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To prove use of a firearm in this allegation, the People must prove that: [¶] One, someone who was a principal in the crime personally used a firearm during the commission of the crimes charge[d] in counts 10 and 11. [¶] To prove discharge of a firearm in this allegation, the People must prove that: [¶] One, someone who was a principal in the crime personally discharged a firearm during the commission of the crimes charged in counts 1, 2, 3 and 4; [¶] Two, that person intended to discharge the firearm; [¶] And three, that person's act caused great bodily injury to another person. [¶] A person is a principal in a crime if he or she directly commits the crime or if he or she aids and abets someone else who commits the crime."

During closing argument, the prosecutor argued, in relevant part, that the enhancement for counts 1, 2, 3 and 4 "requires that a person, the defendant, personally discharged a firearm, intended to do that, and caused great bodily injury." The prosecutor continued, stating that it was not the People's position that Davis had, used or fired a gun, but that, as an aider and abettor, Davis was responsible as well.

Davis's trial counsel conceded that Davis acted as an aider and abettor on the robbery of the Florence M. residence, but not as a gang member, and therefore the gun enhancements did not apply to her.

The jury returned a true finding on the gun enhancements related to counts 2 and 3 as follows:

"We, the Jury ... , find it to be true that ASIA DAVIS personally used a firearm during the active participation in a criminal street gang, within the meaning of Penal Code section 12022.53(d)(e)(1) an allegation as to the crime charged in the second [and third] count[s] of the information."

Applicable Law and Analysis

Based on the language of the jury verdict forms, Davis asserts that the jury made no finding that she vicariously discharged a firearm causing great bodily injury, but rather found only that she vicariously personally used a firearm. The distinction would be that, rather than receiving an additional and consecutive term of 25 years to life, it would be an additional and consecutive term of 10 years. (§ 12022.53, subds. (b), (c), (d), (e).)

Again, we find Davis has forfeited this issue on appeal, as no objection was made to the verdict form before the jury was dismissed. "The obvious purpose for requiring an objection to a defective verdict before a jury is discharged is to provide it an opportunity to cure the defect by further deliberation. [Citation.]" (Juarez v. Superior Court (1982) 31 Cal.3d 759, 764.) The alleged defect was apparent at the time the verdict was rendered and could have been corrected.

In any event, as discussed in part I., above, any technical defects in a verdict may be disregarded if the jury's intent to convict of specified offenses within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice. (People v. Camacho, supra, 171 Cal.App.4th at pp. 1272-1273.) These same principles apply to a finding on a sentence enhancement allegation. (People v. Chevalier (1997) 60 Cal.App.4th 507, 514.)

In order to find an aider and abettor, who is not the shooter, liable under section 12022.53, subdivision (d), the prosecution must plead and prove, in relevant part, that during the commission of the crime, (1) a principal intentionally and personally discharged a firearm proximately causing great bodily injury or death; (2) the aider and abettor was a principal in the offense; and (3) the offense was committed for the benefit of, or at the direction of, a criminal street gang. (§ 12022.53, subd. (e)(1).) (People v. Garcia (2002) 28 Cal.4th 1166, 1174.)

Davis correctly points out, CALCRIM No. 1402, as given, erroneously stated that the allegation was established by proof that a principal "personally used a firearm during the commission of the crimes charged in counts 10 and 11," rather than counts 2 and 3. However, this defect in the jury instruction did not change the overall tenor of the instructions requiring the jurors to find that the firearm was discharged.

The correctness of the instructions is determined through a review of " 'the entire charge to the court,' " not from parts of an instruction. (People v. Bedolla (2018) 28 Cal.App.5th 535, 545.) It is assumed jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) Here, immediately after the erroneous language in CALCRIM 1402 relating to counts 10 and 11, the instruction properly set forth the elements for the gang-related enhancement under section 12022.53, subdivisions (d) and (e)(1), including the discharge requirement, as it related to counts 1, 2, 3, and 4. Furthermore, it is not likely the jury was misled by the erroneous statement as counts 10 and 11 related to the May 2016 robbery, in which no gun was discharged.

The charging document, the jury instructions given, the prosecutor's argument, as well as Davis's trial counsel's argument, point to clear evidence that the jury intended to find that a principal, other than Davis, discharged a firearm proximately causing great bodily injury during the commission of counts 2 and 3. We reject Davis's claim to the contrary.¹¹

11 But see part X., below, addressing the trial court's subsequently acquired discretion to strike the gun enhancement.

III. DOES THE TRIAL COURT'S FAILURE TO RESPOND TO JURY QUESTIONS REQUIRE REVERSAL OF ALL COUNTS BASED ON THE NATURAL AND PROBABLE CONSEQUENCES DOCTRINE, THE GANG OFFENSE AND GANG-RELATED FIREARM ENHANCEMENT?

Davis next contends that the trial court failed to provide an adequate response to a jury question posed during deliberation, requiring reversal on all counts based on the natural and probable consequences doctrine, as well as the gang offense and enhancements. In her reply brief, Davis asserts that, if forfeiture is found, trial counsel provided ineffective assistance in acquiescing to the trial court's proposed response to the jury's questions. We disagree. Background

On the third day of deliberations, the jury made the following request:

"May we hear the testimony of Fred Martinez on 10/13 and 10/16. [¶] Clarification on 1401 & 3149 & 1400."

After discussion and suggestions from the parties, the trial court brought the jury back into the courtroom and advised them that it could have the read back of Martinez's testimony as requested, but that more information was required relating to the request for clarification on the jury instructions before a response could be given. The trial court sent the jury back to the jury room to provide further explanation.

The jury subsequently sent the following note to the trial court:

"1401 [gang enhancement]—Does Asia Davis have to be guilty of ALL counts 1 through 5 and counts 8, 10 & 11 or of the lesser of offenses of counts 1, 4 and 11 in order for the jury to establish if there is an enhancement for each crime? Or does the jury consider an enhancement for only each separate charge if found guilty?

"1400 [gang offense]—Is Rayon Norwood or Asia Davis the defendant? If it is Rayon, how does Asia Davis fit in?"

"600 [attempted murder] Is Rayon or Asia the defendant? If it is Rayon, how does Asia Davis fit in?

"810 [torture] Is Rayon or Asia the defendant? If it is Rayon, how does Asia Davis fit in?

"Pg. 24 [gang related firearm enhancement]—Does the "principal" apply to all counts or only the enhancements?"

After bringing the jury back into the courtroom, the trial court stated the following:

"We are responding to a note that we did receive earlier this morning, and then we have the jury in. [¶] And then they have further explanation, which they provided tremendous questions. That is a compliment that is a good question. However, we do have a demarcation line between you and I. And I have explained that to you. You are to base on the judges of the facts [sic]. I will get involved when there is legal problems and legal situations, and I get involved then. [¶] As far as we've done, the attorneys and myself, we've presented the law in this case to you. You do have each a copy. Within that context, you took the facts from the case, which you have, into the jury room. The questions you asked are particular to your domain, not mine. You see what I'm saying? [¶] So within that context with absolutely no disrespect to the questions. I wish I could, in the sense we could have a two-minute discussion, explain everything, that is not what we can do because it is your domain. Do you see the difference? [¶] With that ladies and gentlemen, what I do plan to do is because answering those questions would invade your deliberations and that can't be done. With that in mind, I will refer you to one jury instruction only. It is 3515, 3515. Aside from that to answer your questions, we cannot go further than what we've discussed on the record to this point."

The trial court then ordered the jury to continue its deliberations.

After the jury left the courtroom, the trial court asked both counsel if they had anything to say on the record. Davis's trial counsel stated the following:

"[J]ust so your record is complete, before your Honor brought in the jury and spoke to the jury the record should probably reflect that the three of us met .... We discussed the notes from the jurors. We all came up with an

answer that we thought was appropriate and was acceptable with the Court and counsel, and that is what your Honor presented to the jury just now."

The prosecutor added:

"Just dove-tailing off that, your Honor. It seemed that we were all of the mind that we didn't answer their question with anything other than a referral to jury instruction except the jury instruction that we gave them, even that limited response in our collective opinion would have weighed them in on how they should be looking at the evidence."

The trial court thanked counsel for coming up with "a good answer, not a reactive answer." Applicable Law and Analysis

"An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) Under this standard, we will not disturb the trial court's decision on appeal unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; see People v. Williams (1998) 17 Cal.4th 148, 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)

It is also well established that " '[w]hen the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.' " (People v. Boyce (2014) 59 Cal.4th 672, 699 (Boyce), quoting People v. Dykes (2009) 46 Cal.4th 731, 802 [citing numerous cases].)

Here, Davis does not dispute that the trial court's statement was accurate, only that its response to the jury's questions did not provide adequate guidance and that additional information could have been provided because "the jurors had no clue as to the requirements for natural and probable consequences liability," nor did they have "the faintest idea" what the gang crime and enhancement required. In addition, Davis does not dispute that defense counsel "acquiesce[d] to the trial court's response." Under these circumstances, Davis's claim is forfeited. (See Boyce, supra, 59 Cal.4th at p. 699.)

While we find the issue forfeited, we nonetheless address the issue on its merits due to Davis's alternate argument in her reply brief that counsel was ineffective for having acquiesced.

A trial court has a primary duty to assist the jury in understanding the legal principles it is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97 (Beardslee).) This does not mean that the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the trial court has discretion to determine what additional explanations are sufficient to satisfy the jury's request for information. What a trial court may not do is "throw up its hands and tell the jury it cannot help." (Ibid.) Instead, the court must consider how it can best help the jury and decide whether further explanation is desirable or whether it should merely reiterate the original instructions already given. (Ibid.)

Here, we reject a claim that the trial court failed to respond properly to the jury's questions. The trial court met with counsel and fashioned an agreed-upon response. The trial court considered how best to help the jury without overstepping its own bounds. The trial court referred the jury to CALCRIM No. 3515, which it had instructed with earlier. That instruction stated:

"Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each except for Counts 1, 4 and 11 which are for lesser included offenses and will be addressed in other instructions."

In addition, although Davis contends the jury was struggling with the concept of natural and probable consequences liability as to the attempted murder and torture counts (counts 1 and 3), the standard instructions given on both the attempted murder (CALCRIM No. 600) and torture (CALCRIM No. 810) charges were full and complete and provided the jury with answers to its own questions. In addition, instructions on aiding and abetting: general principles (CALCRIM No. 400), aiding and abetting: intended crimes (CALCRIM No. 401), and natural and probable consequences as it relates to aiding and abetting (CALCRIM No. 402) were also given. These instructions neither omitted or misdescribed what was required to find Davis guilty of attempted murder and torture as an aider and abettor under a natural and probable consequences theory. While complex and lengthy, jurors were provided written copies of the instructions and "[t]he crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) Thus, there was no need for additional instructions on those offenses.

The same is true for the gang offense and gang enhancement, as the trial court gave the standard instructions on both (CALCRIM Nos. 1400 and 1401), both of which fully and completely advised the jury what the prosecution had to prove for both the substantive gang charges and enhancements.

We disagree with Davis that the trial court should have deviated from, or added to, the standard instructions. As evidenced by the trial court's remarks, it was keenly aware that it was required to respond in a neutral manner that did not suggest advocacy. (People v. Montero (2007) 155 Cal.App.4th 1170, 1180.) Any clarification offered by the trial court beyond the standard jury instructions could have placed the court into the role of an advocate. The trial court's answer, however, responded to the jury but eliminated any possibility of endorsing or redirecting the jury. As our Supreme Court has noted, it is often risky for a trial court to offer comments that diverge from the standard instructions. (Beardslee, supra, 53 Cal.3d at p. 97.) A trial court is not required to elaborate on the standard jury instructions if the original instructions are full and complete. (Ibid.)

Based on the record here, the trial court did not exercise its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.) The trial court's decision was not outside the bounds of reason under the applicable law and the relevant facts. (See People v. Williams, supra, 17 Cal.4th at p. 162.) As such, the trial court did not abuse its discretion when it responded to the jury's question. Accordingly, Davis's argument is without merit and this claim fails.

IV. MUST THE CONVICTIONS FOR TORTURE, MAYHEM, ELDER ABUSE, AND FALSE IMPRISONMENT BE REVERSED BECAUSE THE EVIDENCE IS INSUFFICIENT TO PROVE THAT THOSE OFFENSES WERE NATURAL AND PROBABLE CONSEQUENCES OF THE TARGET CRIMES?

Davis next contends her convictions for torture, mayhem, elder abuse, and false imprisonment must be reversed, as there is insufficient evidence that those offenses were the natural and probable consequences of the target offenses of robbery and burglary. We disagree. Background

With respect to the Florence M. home invasion, Davis was charged with the target offense of robbery (count 2) and burglary (count 5) as an aider and abettor, and with attempted murder (count 1), torture (count 3), aggravated mayhem (count 4), and elder abuse (count 8) as nontarget offenses pursuant to the natural and probable consequences doctrine. As for the May 2016 home invasion, Davis was charged as an aider and abettor with the target offense of robbery (count 10) and kidnaping for the purpose of robbery (count 11) as the nontarget offense pursuant to the natural and probable consequences doctrine.

As noted previously, the jury was instructed with the standard aiding and abetting instructions under CALCRIM Nos. 400 (Aiding and Abetting: General Principles), 401 (Aiding and Abetting: Intended Crimes), and 402 (Aiding and Abetting: Natural and Probable Consequences).

The jury was unable to reach a verdict on the attempted murder (count 1), but found Davis guilty of torture (count 3) and elder abuse (count 8), and the lesser included offenses of mayhem (count 4) and false imprisonment (count 11), pursuant to the natural and probable consequences doctrine. The trial court declared a mistrial on count 1, and that charge was later dismissed. Standard of Review

To determine the sufficiency of the evidence, "we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We must "view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277.) Reversal based on insufficient evidence is warranted only if "it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)

" 'Where, as here, the jury's findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, "but our opinion that the circumstances also might reasonably be reconciled with a contrary finding" does not render the evidence insubstantial.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 170,) As a result, we "must accept logical inferences that the jury might have drawn from the circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.) Applicable Law and Analysis

As observed in the above referenced pattern instructions, under the natural and probable consequences doctrine, "[a]n aider and abettor is guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime." (People v. Smith (2014) 60 Cal.4th 603, 611.) Moreover, "[a] consequence that is reasonably foreseeable is a natural and probable consequence under this doctrine. 'A nontarget offense is a " 'natural and probable consequence' " of the target offense if, judged objectively, the additional offense was reasonably foreseeable.' " (Ibid., original italics.) "The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." (People v. Mendoza (1998) 18 Cal.4th 1114, 1133, original italics)

The crimes of torture¹², mayhem¹³, and elder abuse¹⁴ were alleged as the nontarget crimes of the July 2016 robbery; and false imprisonment¹⁵ was alleged as the nontarget crime of the May 2016 robbery. Under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended target (here robbery) offense, but also of any other offense that was a "'natural and probable consequence'" of the crime aided and abetted. (People v. Prettyman (1996) 14 Cal.4th 248, 260.) "The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense," but rather on whether that outcome was objectively likely or foreseeable. (People v. Chiu (2014) 59 Cal.4th 155, 161-162 (Chiu).)

12 CALCRIM No. 810, instructed, in relevant part: "The defendant is charged in Count 3 with torture in violation of Penal Code section 206. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant inflicted great bodily injury on someone else; [¶] AND [¶] 2. When inflicting the injury, the defendant intended to cause cruel or extreme pain and suffering for the purpose of extortion or persuasion."

13 CALCRIM No. 801, instructed, in relevant part: "To prove that the defendant is guilty of the lesser-included crime, in Count 4, of mayhem in violation of Penal Code section 203, the People must prove that: [¶] 1. Disabled or made useless a part of someone's body and the disability was more than slight or temporary. [¶] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else."

14 CALCRIM No. 830, instructed, in relevant part: "The defendant is charged in Count 8 with elder abuse likely to produce great bodily harm in violation of Penal Code section 368(b)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on Florence M.; [¶] 2. The defendant inflicted suffering on Florence M. under circumstances or conditions likely to produce great bodily harm; [¶] 3. Florence M. was an elder adult; [¶] AND [¶] 4. When the defendant acted, he or she knew or reasonably should have known that Florence M. was an elder."

15 CALCRIM No. 1240, instructed, in relevant part: "To prove that the defendant is guilty of the lesser-included crime, in Count 11, of false imprisonment by violence in violation of Penal Code section 236, the People must prove that: [¶] 1. The defendant intentionally and unlawfully restrained, or confined, or detained someone by violence or menace; [¶] AND [¶] 2. The defendant made the other person stay or go somewhere against that person's will."

The doctrine is based upon an objective standard. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) " 'Because the nontarget offense is unintended, the mens rea of the aider and abettor with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget crime.' " (Chiu, supra, 59 Cal.4th at p. 164.)

Here, Davis, by her own admission, agreed to commit the home invasion robberies with Norwood and Hunt. Both robberies involved Davis knocking on the door of the intended victim, to instigate the robberies. In doing so, Davis interacted with both Florence M. and Maria Z. In the case of Florence M., which occurred at night, Davis was well aware that Florence M. was elderly and living alone. As for Maria Z., Davis was aware that she was also home without another adult, but had two young children with her. In both robberies, guns were involved: in the July 2016 (Florence M.) robbery, both Norwood and Hunt were armed with guns; in the May 2016 (Maria Z.) robbery, all three perpetrators, including Norwood and Hunt, had guns.

When this evidence is viewed in the light most favorable to the judgment, it was reasonably foreseeable that Norwood and/or Hunt would inflict great bodily injury on Florence M., with intent to cause cruel or extreme pain and suffering, maliciously commit an act that would permanently disable Florence M., or willfully inflict unjustifiable physical pain or mental suffering upon Florence M. to complete the home invasion robbery. And it was also reasonably foreseeable that, when Norwood, Hunt and the third man entered the Maria Z. residence, armed and with their faces covered, that they would intentionally restrain, confine or detain Maria Z. by violence or menace against her will in order to accomplish the home invasion robbery.

Davis contends that, even if the nontarget offenses were likely consequences of the target offenses, a reasonable person in her position would not have known that, listing as reasons, without explanation, her age,¹⁶ education, level of functioning, questionable competence, and lack of criminal or gang history. Davis's argument ignores the facts of the case: that she acted as the front person to both robberies, luring the vulnerable victims' to open their doors; that she knew the intent was to steal money within the residences and that there was mention of a safe being present; that she had known Norwood, an active gang member, since she was 14 years old; and the fact that she agreed to not one, but two, similar home invasion robberies within two months of each other. Davis's liability as an aider and abettor was based on her joint participation in an extremely dangerous situation that she helped to create. (See, e.g., In re Gary F. (2014) 226 Cal.App.4th 1076, 1080 [aider and abettor liability based on presence at the scene of the crime, companionship with principal actor, conduct before and after the offense, and flight]; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095 [same].)

16 Davis was 25 years old at the time of the offenses.

The application of the natural and probable consequences doctrine does not depend on the foreseeability of every element of the nontarget offense. (Chiu, supra, 59 Cal.4th at p. 165.) And while it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, " ' "it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]" [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstance might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.)

As noted above, the evidence, when viewed in the light most favorable to the judgment, reasonably supports the conclusion that a person in Davis's position would have or should have known that the nontarget offenses were reasonably foreseeable, particularly given her role in the target offenses. We reject her claim to the contrary.

V. IS THE EVIDENCE INSUFFICIENT TO PROVE THE GANG OFFENSE AND GANG ENHANCEMENTS?

Davis argued there is insufficient evidence to support the jury's true finding relating to the gang enhancement under section 186.22, subdivision (b), in counts 1 through 5 and count 8, and the gang offense under section 186.22, subdivision (a), in counts 6 and 12. We disagree as to the gang enhancements found true in counts 1 through 5, and count 8, but agree that there is insufficient evidence to support the gang offense convictions in counts 6 and 12. Standard of Review

Once again, " 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.) The same standard applies to a claim that insufficient evidence supported a jury's gang enhancement finding. (People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.) Gang Offense

We first address Davis's contention that the evidence is insufficient to sustain her conviction on the gang offense, pursuant to section 186.22, subdivision (a).

Section 186.22, subdivision (a), provides:

"Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished ...."

The gang offense, therefore, has three elements: "First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal gang activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 (Rodriguez).) Section 186.22, subdivision (a), punishes gang members who act with other gang members in committing a felony, regardless of whether such felony is gang related. (Rodriguez, supra, at pp. 1131-1132.) "The plain meaning of section 186.22[, subdivision (a)] requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he [or she] is a gang member." (Id. at p. 1132.)

"One may promote, further, or assist in the felonious conduct by at least two gang members by either (1) directly perpetrating the felony with gang members or (2) aiding and abetting gang members in the commission of the felony." (People v. Johnson (2014) 229 Cal.App.4th 910, 920-921.) In sum, active gang participation punishes "active participants for commission of [felonious] criminal acts done collectively with gang members." (Rodriguez, supra, 55 Cal.4th at p. 1139.)

There was substantial evidence at trial that Norwood was a gang member. He had multiple gang tattoos, he associated with other Country Boy Crip gang members, and he admitted he was a gang member.

However, the evidence that coparticipant Hunt was an active gang member of the Country Boy Crips was insufficient, consisting only of the fact that he participated in both robberies with Norwood. While Davis told officers Norwood and Hunt were from the "country," a reference to Country Boy Crips territory, the reference, as acknowledged by Officer Martinez, did not necessarily signify gang membership. Davis did identify Hunt by a moniker, "Slug," and a beanie with the letter "S" on it—said to signify Southside Crips, a name Country Boy Crips call themselves—was found at the scene of the May 2016 robbery and determined to have Hunt's DNA on it. However, Hunt's nickname may not have been a gang nickname, and other gangs may associate with the letter S, or it may not have gang significance at all. Officer Martinez acknowledged that the color blue of the letter S on the beanie was not the shade of blue normally associated with the Country Boy Crips.

And there was no substantial evidence that Davis was a Country Boy Crip gang member. While Officer Martinez testified Davis was in "active participation" with a criminal street gang in May and July of 2016, "based [upon] her taking orders from a Country Boy Crip [Norwood]" to make the initial contact with the victims, he acknowledged that she was not a gang member at the time of the home invasion robberies, but opined that she became an associate of the gang only after she committed the home invasion robberies.

Thus, the evidence presented at trial was insufficient to establish the required element that Davis actively participated in a criminal street gang at the time of the offenses and committed the robberies "in association with any criminal street gang," because the evidence showed that Norwood was the only gang member who participated in the robberies. Counts 6 and 12 must be dismissed for insufficient evidence. Gang Enhancement

Davis also contends there is insufficient evidence to sustain the true findings on the gang enhancements, pursuant to section 186.22, subdivision (b)(1), which enhances the sentence of " 'any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.' " (Rodriguez, supra, 55 Cal.4th at pp. 1138-1139.) Thus, "[t]he enhancement set forth in section 186.22, subdivision (b)(1) does not ... depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 67-68 (Albillar).) In Albillar, the court reached this conclusion in rejecting the defendants' contention that the prosecution had to show that a defendant had the specific intent to aid the identified gang. Rather, the prosecution is only required to show that the crime committed by a defendant was gang related in the sense that it is committed at the direction of, in association with or for the benefit of a criminal street gang. (Id. at p. 60.)

Committing a crime in concert with known gang members can be substantial evidence that the crime was committed in "association" with a gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) A crime is committed in association with a gang if the "defendants relied on their common gang membership and the apparatus of the gang in committing" the charged felonies. (Albillar, supra, 51 Cal.4th at p. 60.) "Commission of a crime in concert with known gang members is substantial evidence which supports the inference that the defendant acted with the specific intent to promote, further or assist gang members in the commission of the crime." (People v. Villalobos, supra, 145 Cal.App.4th at p. 322.)

Generally, for the purposes of proving the gang enhancement, an expert witness is permitted to testify regarding the culture, habits, and psychology of criminal gangs. The expert, in response to a hypothetical question modeled after the alleged crime, may opine as to the motivation for the defendant's actions if the opinion falls within the witness's expertise regarding the culture of criminal gangs. (People v. Ward (2005) 36 Cal.4th 186, 210.) However, a "crime may not be found gang related ... based solely upon the defendant's criminal history and gang affiliations. The crime itself must have some connection with the activities of a gang." (People v. Martinez (2004) 116 Cal.App.4th 753, 761.)

Davis contends that, because Norwood was the only gang member who participated in the home invasion robberies, she could not have intended to facilitate the criminal conduct of other gang members. We disagree.

The California Supreme Court in Rodriguez held that the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)) may not be committed by a lone gang member. (Rodriguez, supra, 55 Cal.4th at p. 1132.) In so holding, the Supreme Court contrasted the statutory language and purpose of the substantive offense in section 186.22, subdivision (a) with that of the sentence enhancement in section 186.22, subdivision (b)(1). The Supreme Court explained: "Section 186.22(a) and section 186.22(b)(1) strike at different things. The enhancement under section 186.22(b)(1) punishes gang-related conduct, i.e. felonies committed with the specific intent to benefit, further, or promote the gang. [Citation.] ... [W]ith section 186.22(a), the Legislature sought to punish gang members who acted in concert with other gang members in committing a felony regardless of whether such felony was gang related. [Citation.]" (Id. at p. 1138.) However, the Supreme Court also made clear that "[a] lone gang member who commits a felony ... would not be protected from having that felony enhanced by section 186.22(b)(1), which applies to 'any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....' " (Id. at pp. 1138-1139; see also People v. Rios (2013) 222 Cal.App.4th 542, 564 [Penal Code "section 186.22(b)(1) gang enhancement may be applied to a lone actor"].)

As noted previously, "[t]he enhancement set forth in section 186.22[, subdivision] (b)(1) does not ... depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang." (Albillar, supra, 51 Cal.4th at pp. 67-68.) Here, the evidence is clear that Norwood was a gang member, that he was in charge of the robberies, that Davis knew of his gang membership and aided and abetted him in the felonious conduct.

Davis further contends that the gang enhancement was not supported by substantial evidence that the Country Boy Crips benefitted from the robberies. We disagree. Officer Martinez testified that the primary activities of the Country Boy Crips included homicide, assault with deadly weapons, illegal firearm possession, robberies, and burglaries. According to Officer Martinez, guns played a large role in Country Boy Crips gang activities, both as the ultimate power status symbol and means to carry out their various activities. Officer Martinez opined that the property taken in the home invasions, particularly the guns, greatly benefited the gang. Officer Martinez also opined that shooting the victim, as happened in the July 2016 robbery, was a sign to others that the gang would not take "no" for an answer and would use any means necessary to get what they want. Officer Martinez opined that, leaving a victim immobilized, as they did with Florence M., benefited the gang's reputation in the community for committing heinous crimes. An expert's opinion that a crime benefited a gang by enhancing its reputation for "viciousness" or violence may be sufficient to raise an inference that the crime benefited the criminal gang. (Albillar, supra, 51 Cal.4th at p. 63; People v. Vazquez (2009) 178 Cal.App.4th 347, 353.)

While it is true that there was no evidence that the stolen firearms were used by Country Boy Crips to commit further crimes or sold for financial gain, "[t]here is rarely direct evidence that a crime was committed for the benefit of a gang." (People v. Miranda (2011) 192 Cal.App.4th 398, 411; see also People v. Rios, supra, 222 Cal.App.4th at pp. 567-568 ["as to the specific intent prong" of the gang enhancement statute, " '[i]ntent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense' "].)

Based on the evidence, the jury could reasonably infer that Davis aided and abetted the home invasion robberies, and all resultant felonies, with the specific intent to promote, further, or assist in the criminal conduct of gang members.

VI. DID THE PROSECUTOR COMMIT PREJUDICIAL ERROR BY REPEATEDLY EQUATING "LIKELY" WITH "FORESEEABLE" IN ARGUMENT TO ESTABLISHED LIABILITY?

Davis next contends that the prosecutor committed prejudicial error during closing argument and rebuttal by misstating the law relating to the natural and probable consequences doctrine by repeatedly equating the terms "likely" and "foreseeable," lessening the prosecution's burden of proof. We find no error. Background

In closing argument, the prosecutor argued, in part, as follows:

"As you'll see, there is a doctrine called the natural and probable consequences. What it means is that aider and abettor—in this case, Asia Davis—is responsible for everything that is a likely and foreseeable consequence of that burglary, of that robbery."

The prosecutor further argued,

"[A] natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes .... [¶] [For]

an aider and abettor to be responsible for crimes that are not part of the plan. There comes that role of foreseeability."

In continuing, the prosecutor argued that Davis's "criminal culpability is opened up to all of those other offenses because they are reasonably foreseeable, because they are likely." Later, in again addressing the nontarget offenses, the prosecutor argued, "For those other offenses you have to ask yourself: Is this something that was likely? Is this something that was foreseeable for letting the men enter the house initially ...." In several other instances, the prosecutor argued the jurors were to determine if the results of Davis's actions were "likely" or "foreseeable."

Similar arguments occurred in rebuttal, with the prosecutor arguing again "What is likely to happen? What is natural and probable?" and that the offenses were "likely foreseeable."

At no point did Davis's trial counsel object to these statements. Applicable Law and Analysis

" '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description ... is prosecutorial error.' " (People v. Centeno (2014) 60 Cal.4th 659, 666-667.) The applicable law is well-settled: " 'Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights ... is not a constitutional violation unless the challenged action " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " ' " (People v. Fuiava (2012) 53 Cal.4th 622, 679.) It is certainly error for the prosecutor to misstate the law, and in particular to attempt to reduce the People's burden of proof beyond a reasonable doubt.

Davis contends the prosecutor committed error by improperly equating the words "foreseeable" and "likely" in addressing the natural and probable consequences doctrine as to the nontarget offenses, thereby lessening the prosecutor's burden of proof. Davis further contends that, based on the questions during deliberations, the jury had no understanding of the requirements of the natural and probable consequences doctrine and, as a result, used the concept of "foreseeability" as the standard in order to return a verdict.

Respondent argues Davis forfeited her claim of prosecutorial error by failing to object below. (People v. Gamache (2010) 48 Cal.4th 347, 371; People v. Panah (2005) 35 Cal.4th 395, 462.) Davis acknowledges that no objection was made, but argues in the alternative that she received ineffective assistance of counsel. We will address the claim briefly to eliminate it from potential habeas consideration. (People v. Crittenden (1994) 9 Cal.4th 83, 146.) In doing so, we find no prejudicial error.

The prosecutor's use of the word "foreseeable" in defining the natural and probable consequences doctrine did not misstate the law. In Chiu, supra, 59 Cal.4th 155, our Supreme Court held, in a factual context not applicable here, that, under the natural and probable consequences doctrine, "liability ' "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ' " (Chiu, supra, at p. 162.) Furthermore, reasonable foreseeability " 'is a factual issue to be resolved by the jury.' " (Ibid.)

And, as explained further in People v. Smith, supra, 60 Cal.4th 603, 611:

"A consequence that is reasonably foreseeable is a natural and probable consequence under this doctrine. 'A nontarget offense is a " 'natural and probable consequence' " of the target offense if, judged objectively, the additional offense was reasonably foreseeable. [(People v. Medina (2009)

46 Cal.4th 913, 920.)] The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. (Ibid.) Rather, liability " 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' " (Ibid.) Reasonable foreseeability "is a factual issue to be resolved by the jury." (Id. at p. 920.)' (People v.Chiu, supra, 59 Cal.4th at pp. 161-162.)"

Here, the jury was instructed with CALCRIM No. 402, which defined a natural and probable consequence for the jury as "one that a reasonable person would know is likely to happen if nothing unusual intervenes." Given that a natural and probable consequence has been defined as a reasonably foreseeable consequence in case law, it follows that use in the instruction of the word "likely" has the same meaning.

We find no error on the part of the prosecutor and reject Davis's claim to the contrary.

VII. DOES SECTION 654 PRECLUDE PUNISHMENT FOR ROBBERY AND TORTURE?

As previously described, Davis was convicted of the July 2016 robbery in count 2 as an aider and abettor and torture in count 3 as a natural and probable consequence of the robbery. The trial court sentenced Davis for the torture conviction to life with the possibility of parole, plus 25 years to life for the gun enhancement. On the robbery, the trial court imposed the low term of three years, plus 25 years to life for the gun enhancement and ordered the sentence be served consecutive to the sentence imposed on the torture conviction.

Davis now contends that punishment as an aider and abettor for both robbery and torture is prohibited under section 654 because her liability for the crimes flowed from the single intent and objective to commit the robbery. Respondent agrees, as do we.

Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." This statute "prohibits punishment for two crimes arising from a single, indivisible course of conduct." (People v. Islas (2012) 210 Cal.App.4th 116, 129, citing People v. Latimer (1993) 5 Cal.4th 1203, 1208.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor" (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. Correa (2012) 54 Cal.4th 331, 334). If all of the offenses were incident to one objective, the defendant may be punished for one of such offenses but not more than one. (Neal, supra, at p. 19.) " 'The purpose of the protections against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability.' " (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1004.) The application of section 654 raises a question of law we review de novo when those facts, as they are here, are undisputed. (People v. Corpening (2016) 2 Cal.5th 307, 312.)

Here, the jury was presented with a natural and probable consequence theory of liability on Davis's part (based on aiding and abetting the robbery) on the torture count. Both parties cite to People v. Bradley (2003) 111 Cal.App.4th 765, 770 (Bradley) in which the defendant acted as the "'bait'" in a scheme to lure a prosperous-looking customer into leaving a casino so her two male accomplices could rob him. All went according to plan until one of the men beat the victim with a firearm and then shot him multiple times. The victim survived. The defendant was convicted of attempted murder and second degree robbery, for which the trial court imposed consecutive sentences. (Bradley, supra, at pp. 767-768.) On appeal, the defendant challenged the imposition of consecutive sentences. (Id. at p. 768.) The Court of Appeal observed: "Appellant had only one objective and one intent—to aid and abet a robbery of the victim .... She was neither tried for nor convicted of the attempted murder charge on the theory she intended the commission of that crime. Rather she was convicted on a theory this second offense was a 'natural and probable' consequence of the offense she did intend, that is, the robbery." (Id. at pp. 768-769.) Under the circumstances, the court reasoned, "without a finding appellant at some point entertained as an independent objective the goal of attempting to murder [the victim], ... section 654 denies the trial court discretion to impose consecutive sentences on appellant for the robbery and attempted murder convictions. [¶] ... [¶] Appellant is clearly less culpable than her male confederate who shot [the victim] or the other male confederate who aided and abetted that second crime. Unlike them, she only had a single criminal objective—the robbery .... Indeed she was unaware that second crime was occurring until after it was completed and thus didn't have an opportunity to prevent or even protest its commission. As a result, there simply was no evidence appellant exhibited the more dangerous mental state warranting a consecutive sentence under ... section 654." (Id. at pp. 770-771.)

The court in Bradley distinguished the case of People v. Nguyen (1988) 204 Cal.App.3d 181 (Nguyen). In that case, the defendant and an accomplice, both of whom were armed, entered a market. The confederate escorted the clerk to a rear room and took money from his pockets. The defendant remained up front and opened the cash register and actively encouraged the shooter to kill the victim. (Id. at p. 185.) The confederate then kicked the clerk in the ribs and shot him in the back. (Ibid.)

On appeal, the defendant in Nguyen claimed the trial court violated section 654 by imposing consecutive sentences for the attempted murder and the robbery. (Nguyen, supra, 204 Cal.App.3d at p. 189.) Despite the fact the jury found the shooting to have been a natural and probable consequence of the robbery (id. at p. 190), the Court of Appeal disagreed, explaining: "[A] separate act of violence against an unresisting victim or witness, whether gratuitous or to facilitate escape or to avoid prosecution, may be found not incidental to robbery for purposes of section 654. If the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate." (Id. at p. 193.)

The Bradley court distinguished Nguyen in part on the basis that there, unlike in Bradley, "the aider and abettor of the robbery actively encouraged the shooter to kill the victim.... [¶] As a result, applying the rationale of our opinion to Nguyen, he would still be subject to consecutive sentencing. Ample evidence in the record of that case would support a finding Nguyen shared his cohort's independent objective of attacking the victim. Indeed he evidently was the instigator of that attack. This contrasts sharply with appellant's role—or actually nonrole—in her cohort's shooting of the victim here. Not only did she not encourage the attack, she was oblivious this deviation from the original plan was taking place until the shots rang out and the attempted murder was completed. [¶] Obviously, Nguyen personally entertained both objectives his principal had—to rob the store and to attack the victim. In the case before this court, it is equally obvious appellant only had a single objective—to rob the victim." (Bradley, supra, 111 Cal.App.4th at pp. 771-772, fns. omitted.)

Here, as in Bradley, as noted by both parties, Davis did not play a role in the nontarget offense of torture. Davis left the Florence M. residence once Norwood and Hunt entered. Her only intent was to aid and abet the robbery. Her liability for the torture offense was based on the natural and probable consequences doctrine. Thus, punishment for both robbery and torture is prohibited under section 654. The sentence for count 2, which carried a lesser term, should be stayed. (See People v. Thompson (1989) 209 Cal.App.3d 1075, 1080.)

VIII. DID THE TRIAL COUNSEL RENDER INEFFECTIVE ASSISTANCE, DENYING DAVIS THE RIGHT TO COUNSEL?

Davis next asserts reversal of all counts is required because trial counsel committed numerous prejudicial errors and omissions, rendering her trial and sentence fundamentally unfair in violation of her right to effective assistance of counsel. None of Davis's claims of ineffective assistance of counsel has merit. Applicable Law

To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371.)

To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding,' " a defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Richter, supra, 562 U.S. at p. 104; Strickland, supra, 466 U.S. at p. 693; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "The likelihood of a different result must be substantial, not just conceivable." (Richter, supra, 562 U.S. at p. 112.)

"On appeal, we do not second-guess trial counsel's reasonable tactical decisions." (People v. Lucas (2014) 60 Cal.4th 153, 278, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) "[A] defendant's burden [is] 'difficult to carry on direct appeal,' as a reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had ' " 'no rational tactical purpose' " ' for an action or omission." (People v. Mickel (2016) 2 Cal.5th 181, 198, quoting People v. Lucas (1995) 12 Cal.4th 415, 437.) Counsel at Trial

Davis specifically alleges counsel was ineffective at trial for the following reasons: (1) failing to present evidence of Davis's low functioning IQ; (2) failing to argue the proper standard for the natural and probable consequences doctrine; (3) failing to address the charge of torture in argument; (4) for arguing that the burden of proof in this matter was the same as the burden of proof in a driving under the influence case; (5) for using a meandering hypothetical based on the felony murder rule in argument that left the impression that liability for nontarget offenses was automatic; and (6) for arguing that Davis was not guilty of mayhem because the evidence did not show Norwood was guilty of that offense. We address each of Davis's arguments in turn, although none require significant discussion.

1. Competency Evaluation Evidence

Davis first contends counsel was ineffective for failing to introduce evidence at trial of Davis's low intelligence quotient (IQ), citing the court-ordered evaluation of Davis written by Dr. Gary Longwith prior to trial in connection with Davis's competency hearing. In the report, Dr Longwith found Davis had an extremely low IQ, low verbal and perceptual skills, and overall presented a "less than age appropriate intelligence" and "a very slight maturational delay." Dr. Longwith determined that Davis suffered from a moderate intellectual disability and mood disorder with depressive features, made worse by a traumatic brain injury at the age of 16.

Davis contends the evidence of her intellect and cognitive disability provided a compelling factual basis for trial counsel to argue that a reasonable person in her condition would not have known that the nontarget offenses were a reasonably foreseeable consequence of the robberies. We find no error.

Dr. Longwith's evaluation, however, related only to whether Davis was competent to stand trial, which the report concluded she was. Thus, despite his diagnosis, Dr. Longwith determined Davis had the mental capacity to "understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner," as set forth under section 1367, subdivision (a). Davis's argument that evidence of her low IQ would have supported her defense was therefore not availing, and trial counsel was not ineffective for failing to so argue. Even if trial counsel had done so, it was not reasonably probable Davis would have been acquitted of those counts.

2. Failure to Argue Natural and Probable Consequences Standard

Davis next argues trial counsel was ineffective for failing to argue the requirements of the natural and probable consequences doctrine set forth in CALCRIM No. 402 to focus the jury's attention on the weaknesses in the prosecution evidence, leaving her "without an advocate" regarding the nontarget offenses. We find no error.

In part, this is a repeat of the issues set forth in arguments III., IV., and VI., above. The jury was properly instructed with CALCRIM No. 402, the standard instruction regarding the natural and probable consequences doctrine. The jury was also instructed that it was required to follow the trial court's instructions on the law and it is presumed the jurors followed the trial court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Moreover, trial counsel referenced CALCRIM No. 402 in his closing remarks, and argued repeatedly that Davis was not responsible for what occurred inside the residences after she left because the nontarget offenses were not reasonably foreseeable as the natural and probable consequences of her actions.

3. Failure to Address Torture in Closing Argument

Davis next asserts trial counsel was ineffective for failing to argue she was not guilty of torture. We disagree.

Trial counsel specifically argued Davis was not guilty of torture because the prosecutor failed to introduce sufficient evidence that Norwood tortured Florence M., and also that torture was not a natural and foreseeable consequence of her participation in the robbery. Trial counsel argued that, while Davis was guilty of aiding and abetting the robbery, "[t]here is no way that she could have foreseen what was going to happen to Ms. [M.] once Mr. Norwood and Mr. Hunt entered the [Florence M.] house." And he argued further that, Davis "could not have foreseen what was going to happen after those people got in the door. That's not what she signed on for."

Thus, contrary to Davis's assertion, trial counsel did address the charge of torture in argument.

4. Trial Counsel's Argument on the Burden of Proof

Davis also argues trial counsel was ineffective by telling the jury that the burden of proof in her case was the same as in a driving under the influence trial. According to Davis, this argument implied her case deserved no more consideration than a misdemeanor offense. We disagree.

At the start of closing arguments, trial counsel stated the following:

"I have been doing this for awhile. I think that a lot of times people think that the burden of proof on the prosecution is less in a drunk driving case than it is in a case like this. Not true. The burden of proof is exactly the same in both cases. There is not a sliding scale that jurors are allowed to use such that the more serious the case, the less burden [the prosecutor] has. He has exactly the same burden as he would in any other criminal case."

Counsel's statement is an accurate statement of the law—the burden of proof in this case is the same as in any other criminal case. The trial court instructed on the burden of proof with CALCRIM No. 220, proof beyond a reasonable doubt. Nothing in trial counsel's remarks indicated that Davis's case was to deserve less consideration than a misdemeanor case.

5. Trial Counsel's "Meandering Hypothetical"

Davis also asserts trial counsel was ineffective by giving, what she describes as, a "meandering hypothetical" about the liability of a getaway driver in an armed robbery, suggesting Davis's liability in this case for the nontarget offenses was automatic. We disagree.

During closing, trial counsel created a hypothetical that involved himself and two "buddies, Fred and Tony" who decide to rob a bank to get money for Christmas presents. Fred is to be the getaway driver and waits outside the bank while the other two enter. The other two go into the bank, rob the teller, and, before leaving, one of the robbers sees "Justin Bieber," whom he hates, and chokes him to death. The two leave the bank, jump into the waiting car with Fred at the wheel and speed away. Fred is aghast when he hears what has occurred and said, "I didn't sign on for that."

Trial counsel repeatedly comes back to this hypothetical in argument, to emphasize that Davis is not guilty of the nontarget offenses, because, like the hypothetical killing of Justin Bieber, none of the nontarget offenses were reasonably foreseeable or could be considered natural and probable consequences of the robberies. We find no error on trial counsel's part.

6. Failure to Address Aggravated Mayhem

Davis finally contends trial counsel was ineffective at trial for failing to argue the natural and probable consequences doctrine in connection to the charge of mayhem. Again, we disagree.

During closing, trial counsel discussed the charge of aggravated mayhem, stating it related to the shooting of Florence M. in the leg, as well as some of the other injuries she suffered. Counsel then laid out the elements of the charge. Trial counsel first argued that there was insufficient evidence to prove the second element of the charge, that Norwood intended to permanently disable Florence M. by shooting her in the leg. He then argued Davis had "no idea that that was going to happen when she agreed to help Mr. Norwood and company get into the house." Trial counsel continued, arguing that beating an old woman and shooting her twice in the leg was "not foreseeable" by Davis, when what she was doing was getting Florence M. to open the door to allow the men to rob her.

We agree with respondent that, while trial counsel's argument was "not done in the most articulate fashion," trial counsel did adequately address the natural and probable consequences doctrine as it related to the charge of mayhem. We also note that Davis was acquitted of the aggravated mayhem charge and found guilty, instead, of the lesser offense of mayhem. Counsel at Sentencing

Davis also argues trial counsel was ineffective at sentencing, by failing, as follows: (1) to file a statement in mitigation; (2) to argue for concurrent sentences; (3) to argue that Davis could not be punished for both robbery and torture; (4) to argue that the primary objectives of her sentence did not require a life sentence; (5) to argue that a near-maximum term was not appropriate; (6) to argue that her actual culpability was to commit the robberies, not the target offenses; (7) to argue that Davis wrote an apology letter; and (8) to argue her low functioning IQ. Again, we address each in turn and find no prejudicial error.

1. Statement in Mitigation

Davis contends trial counsel was ineffective at sentencing when he failed to file a statement in mitigation, leaving Davis to the mercy of the prosecutor, the probation officer and the trial court, and resulting in a sentence that will cause her to "die in prison."

Davis does not mention what factors in mitigation were ignored, but the record is clear that the probation department submitted a comprehensive report that the trial court read and considered before sentencing Davis. The report included three character reference letters written on Davis's behalf, the fact that her previous criminal history was "minor," and it detailed her personal history, including drug and alcohol use. Before sentencing, trial counsel argued to the trial court that Davis's low IQ and a car accident as a teenager impaired her mental function and should be considered as a factor in mitigation. Trial counsel also argued that Davis's lack of participation in the crimes that occurred after the others entered the homes should be considered as a factor in mitigation. It should be noted that, while the sentencing report recommended Davis receive the middle term on each count, the trial court imposed the low term sentence wherever possible.

We reject Davis's claim of ineffective assistance of counsel at sentencing because she has failed to show any likelihood she would have received a reduction in sentence if counsel had filed a statement in mitigation.

2. Concurrent Sentences

Davis next contends trial counsel was ineffective at sentencing for failing to argue, either orally or in a statement of mitigation, that indeterminate sentences may be imposed consecutively or concurrently to each other and to a determinate sentence. Specifically, Davis cites to the indeterminate sentence imposed in count 3 and the consecutive sentence imposed in count 2.

The trial court read and considered the sentencing recommendation report, which recommended that the sentence on count 2 be served consecutive to the sentence imposed on count 3 because "the actions in Count 3 go beyond the mere gunshot and robbery and created a significant period of anguish to the victim that did not appear to further the criminal objective of the robbery." The trial court was well aware of its discretion, and clearly agreed with the recommendation when it sentenced Davis to the consecutive sentence.

In any event, we have determined in part VII., above, that the sentence in count 2 is to be stayed pursuant to section 654, negating Davis's claim here.

3. Punishment for Torture and Robbery

Davis next contends trial counsel was ineffective for failing to argue that she could not be sentenced for both torture and robbery pursuant to section 654. Given respondent's concession and our agreement on this issue, which we addressed in argument VII., above, this issue is moot.

4. Primary Objectives of Davis's Sentence

Davis next contends trial counsel was ineffective for failing to argue that the primary objectives of her sentence did not require a life sentence under California Rules of Court, rule 4.410(a).¹⁷ We find no error.

17 All further rule references are to the California Rules of Court, unless otherwise stated.

Rule 4.410(a) provides a list of "[g]eneral objectives of sentencing," which include (1) protecting society; (2) punishing the defendant; (3) encouraging the defendant to lead a law abiding life in the future and deterring her from future offenses; (4) deterring others from criminal conduct by demonstrating its consequences; (5) preventing the defendant from committing new crimes by isolating her for the period of incarceration; (6) securing restitution for the victims of crime; (7) achieving uniformity in sentencing; and (8) increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices. Davis contends trial counsel was ineffective for failing to remind the trial court that it was to consider which objectives were of primary importance in this case and make discretionary calls that would have benefited Davis, as required under rule 4.410(b).¹⁸

18 Rule 4.410(b) states, in part: "Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case."

Davis does not specify which "discretionary calls" the trial court could have made that would have benefited her. She was convicted of aiding and abetting two violent home invasion robberies, as well as a number of violent offenses relating to those robberies. As stated in the sentencing report, Davis was not eligible for probation because her case did not present unusual circumstances, as defined by rule 4.413. Her conviction under section 207 (torture) required a life sentence. At the time of sentencing, the gun enhancements in counts 2 and 3 under section 12022.53, subdivision (d) and (e)(1) required that she be sentenced to 25 years to life.¹⁹ Unless the record affirmatively reflects otherwise, the trial court is presumed to be aware of the relevant criteria enumerated in the rules. (Rule 4.409; People v. Pearson (2019) 38 Cal.App.5th 112, 117.) Davis has failed to demonstrate how she would have received a more favorable sentence had trial counsel asked that the trial court indicate its objective in sentencing Davis. We therefore reject her claim.

19 But see part X., post.

5. Near Maximum Term

Davis next contends trial counsel was ineffective for failing to argue that the "near-maximum term" was not appropriate or necessary because Dr. Longwith's psychological report stated that Davis was only a "mild risk for harm to others" and the evidence demonstrated that she was not "a hard-core gang member."

But the record, as stated above, was that trial counsel did argue, as a factor in mitigation, that Davis had a low IQ and that she was cognitively impaired due to an earlier car accident. And the trial court noted, at sentencing, that it was aware of the facts of the case having presided over the "whole trial." The trial court was also aware of Dr. Longwith's findings, having heard trial counsel's motion to exclude Davis's pretrial statement because of her low IQ and diminished intellect.

Under these circumstances, Davis has failed to show that trial counsel acted unreasonably or that his conduct at sentencing prejudiced her.

6. Culpability Based on Intent to Commit Robberies

Davis also claims trial counsel was ineffective at sentencing for failing to argue that her actual culpability should have been based on her intent to commit only the robberies, not on the act and intents of her codefendants.

But again the record shows that trial counsel did discuss her intent at sentencing, stating, in part, that while Davis participated in both of the robberies, her part was to open the door to the two homes, but that she left the premises when the doors were opened. Counsel also stated Davis did not participate in any of the injuries inflicted on either victim and, "while that certainly is not an excuse, I would request the court to consider that, also, as a circumstance in mitigation."

We reject Davis's claim to the contrary.

7. Davis's Apology Letter to Florence M.

We also reject Davis's argument that counsel was ineffective for not emphasizing that Davis wrote an apology letter to Florence M. as evidence of her remorse and acceptance of responsibility for her actions. The trial court was well aware of the apology letter, as it was introduced at trial. Davis has not demonstrated how trial counsel's omission prejudiced her.

8. Davis's Intellect

Finally, Davis contends trial counsel was ineffective at sentencing for failing to emphasize Dr. Longwith's findings of her low IQ and her impaired cerebral function caused by an earlier auto accident. But once again, Davis has failed to demonstrate prejudice.

Dr. Longwith's report was filed with the trial court prior to the sentencing hearing. And Dr. Longwith's findings were discussed at length during the pretrial evidentiary hearing to exclude Davis's pretrial statements. The trial court was therefore well aware of the doctor's test results and opinions relating to Davis's cognitive abilities. Trial counsel was not ineffective for failing to further explain these findings at sentencing.

IX. ARE THE CONVICTIONS AND SENTENCE SO GROSSLY DISPROPROTIONATE TO DAVIS'S CULPABILITY THAT THEY VIOLATE THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT?

Davis contends several of her convictions violate due process because they did not require a mens rea component. She also argues her life sentences are grossly disproportionate to her culpability, constituting cruel and unusual punishment. We disagree. Due Process

Davis was sentenced to life with the possibility of parole for her torture conviction, plus 25 years to life for the gun enhancement. She was also sentenced, on the July 2016 robbery, to the low term of three years, plus 25 years to life for the gun enhancement, to be served consecutive to the sentence imposed for the torture conviction. On the May 2016 robbery conviction, Davis was sentenced to life with a minimum parole eligibility date of 15 years to be served consecutive to the sentence imposed on the torture conviction, plus 10 years for the gun enhancement, which was stayed. The sentences imposed on the remaining counts were stayed.

Davis contends imposition of the two consecutive life terms, a consecutive determinate term, and two consecutive terms of 25 years to life violated her right to due process because these sentences were based on crimes she did not intend to commit. Davis argues she only intended to aid and abet the two robberies in concert and her exposure should be a maximum term of 11 years for those crimes.

Davis's argument ignores the fact that our Supreme Court has repeatedly upheld the natural and probable consequences doctrine. (People v. Prettyman, supra, 14 Cal.4th at p. 260.) "Aider and abettor culpability under the natural and probable consequences doctrine is vicarious in nature" and "is not premised upon the intention of the aider and abettor to commit the nontarget offense because the nontarget offense was not intended at all." (Chiu, supra, 59 Cal.4th at p. 164.) "[T]he mens rea of the aider and abettor with respect to the offense is irrelevant and culpability is imposed simply because a reasonable person could have foreseen the commission of the nontarget offense." (Ibid.) We therefore reject her due process claim. Cruel and Unusual Punishment ²⁰

20 We question whether this argument is premature, noting part X., below.

Davis argues that her two consecutive life terms, the consecutive determinate term, and the two consecutive terms of 25 years to life violates both the federal and state prohibition against cruel and unusual punishment because the punishment is impermissibly disproportionate to the criminal conduct she intended to commit. Again, we disagree.

The United States and the California Constitutions prohibit cruel and unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art I, § 17.) A sentence may be unconstitutional if it is grossly disproportionate to the crime committed. (Graham v. Florida (2010) 560 U.S. 48, 59-60; People v. Dillon (1983) 34 Cal.3d 441, 478.) Whether a sentence constitutes cruel or unusual punishment is a question of law that we review de novo, viewing the underlying facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A defendant must overcome a "considerable burden" when challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)

A sentence violates California's prohibition on cruel or unusual punishment if the punishment is so disproportionate to the crime for which it was imposed that it "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) We apply a three-part test to determine whether a particular sentence is disproportionate to the offense for which it is imposed. First, we examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Id. at p. 425.) Second, we compare the punishment imposed with punishments prescribed by California law for more serious offenses. (Id. at pp. 426-427.) Third, we compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense. (Id. at pp. 427-429.) "Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

The Eighth Amendment to the federal Constitution "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271.) In determining whether a particular sentence is grossly disproportionate, "we look to the gravity of the offense and the harshness of the penalty" and, as under California law, we may consider an intrajurisdictional and interjurisdictional comparison of punishments. (Solem v. Helm (1983) 463 U.S. 277, 290-291.)

Davis addresses only the first factor identified in Lynch, claiming, again, that her intent was only to aid and abet the two robberies by getting the occupants to open their doors so the robbers could enter. In essence, Davis is arguing again that the natural and probable consequences doctrine incorrectly exposed her to life terms because she never intended to commit the counts of torture or the gang-related firearm enhancements.

We find Davis's contention without merit. The evidence showed that Davis agreed to act as a lure to get both victims to open their doors. Davis acknowledged that the men intended to steal money once inside the residences and knew they were armed with guns when they entered. Davis also knew both victims were vulnerable—Florence M. was elderly and Maria Z. was home alone with two small children. Florence M. suffered serious physical injuries as a result of the home invasion; both Florence M. and Maria Z. suffered severe mental trauma as well.

Davis's effort to minimize her role in the offenses by testifying that she ran screaming from the Maria Z. residence once the three men entered is belied by the fact that she did not report the May 2016 robbery to authorities. And more telling, she participated in a similar home robbery just two months later at the Florence M. residence. At the Florence M. residence, Davis returned to the car and waited for at least two hours for Norwood and Hunt to return.

In considering the nature of the offense and the harm to the victims, it was not unreasonable for the court to conclude that Davis's conduct warranted a lengthy sentence. Davis does not compare her sentence to more serious offenses in California or to punishment imposed for the same offenses in other jurisdictions. We take this "as a concession that [her] sentence withstands a constitutional challenge on either basis." (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)

We find no cruel and/or unusual punishment.

X. SENATE BILL NO. 620

The trial court imposed a term of 25 years to life on counts 2 and 3 for the gun enhancement conviction under section 12022.53, subdivisions (d) and (e)(1), and a 10-year stayed term on count 10 for the gun enhancement under section 12022.53, subdivisions (b) and (e)(1).²¹ Davis contends we must remand so that the trial court may exercise its discretion whether to strike the section 12022.53 gun enhancements pursuant to section 12022.53, subdivision (h).²² Subdivision (h) of section 12022.53 became effective January 1, 2018, pursuant to Senate Bill No. 620. (Stats. 2017, ch. 682, § 2.) Prior to Senate Bill No. 620, a trial court lacked discretion to strike or dismiss a firearm enhancement pursuant to section 12022.53. (People v. Chavez (2018) 22 Cal.App.5th 663, 708; People v. Arredondo (2018) 21 Cal.App.5th 493, 506.) Respondent concedes that Senate Bill No. 620 applies retroactively to Davis and that a remand is appropriate so that the trial court can consider whether to strike the firearm enhancements. We agree.

21 We note the abstract of judgment incorrectly refers to this 10-year term as a section 12022.53, subdivisions (d) and (e)(1) enhancement instead of the correct subdivisions (b) and (e)(1).

22 "The court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).)

XI. FINES AND FEES

At sentencing, the trial court imposed a restitution fine of $300 pursuant to section 1202.4, subdivision (b); a $360 court operations assessment pursuant to 1465.8; and a $270 court facilities assessment pursuant to Government Code section 70373. In doing so, the trial court made no findings to determine whether Davis had the ability to pay these amounts.

In supplemental briefing, Davis seeks relief in accordance with the Court of Appeal's decision in People v. Dueñas (2019) 30 Cal.App.5th 1157. Citing due process and equal protection principles, the court held in Dueñas that the fees assessed pursuant to Government Code section 70373 and section 1465.8 may be "imposed only on those with the means to pay them" (Dueñas, supra, 30 Cal.App.5th at pp. 1168-1169), and "that although the trial court is required by Penal Code section 1202.4 to impose a restitution fine, the court must stay the execution of the fine until and unless the People demonstrate that the defendant has the ability to pay" (id. at p. 1172; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 489-490; contra, People v. Allen (2019) 41 Cal.App.5th 312, 325-330 [rejecting the defendant's Dueñas-based due process claim and her equal protection claim]; People v. Hicks (2019) 40 Cal.App.5th 320, 326-329, review granted Nov. 26, 2019, S258946 [rejecting Dueñas's due process analysis]; People v. Aviles (2019) 39 Cal.App.5th 1055, 1061 [disagreeing with Dueñas's due process analysis and concluding constitutional challenge to fines, fees and assessments should be made under the 8th Amendment's excessive fines clause]). Relying on the holding in Dueñas, Davis claims the fees and fines imposed by the trial court in this case must be reversed.

We need not reach this claim. Because we reverse Davis's convictions on two counts and therefore remand for resentencing, Davis may, if she so chooses, raise this issue in the trial court in the first instance.

DISPOSITION

The conviction for the gang offense in counts 6 and 12 and the corresponding sentences imposed as to those counts are reversed. The sentence in count 2 is stayed, pursuant to section 654. And the matter is remanded for resentencing and to allow the trial court to exercise its discretion whether to strike the section 12022.53, subdivision (b) firearm enhancement attached to count 10 or the section 12022.53, subdivision (d) firearm enhancement attached to both counts 2 and 3. A corrected abstract of judgment is to be sent to the Department of Corrections and Rehabilitation.²³ In all other respects, the judgment is affirmed.

23 The corrected abstract of judgment must also show the count 11 section 186.22, subdivision (b)(1) stayed enhancement.

FRANSON, J. WE CONCUR: LEVY, Acting P.J. PEÑA, J.