Opinion
C096329
04-16-2024
THE PEOPLE, Plaintiff and Respondent, v. MARVIN EUGENE MONTGOMERY, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CR2021-2132)
Krause, J.
Defendant Marvin Eugene Montgomery sold methamphetamine to his friend but later suspected that friend of paying him with a counterfeit bill. Angry, defendant asked his friend to meet him at a park, where he shot him twice. A jury found defendant guilty of attempted second degree murder, assault with a firearm, and found true multiple firearm and bodily injury enhancements. The trial court sentenced defendant to 27 years in prison. Defendant advances multiple arguments on appeal, contending (1) the evidence was insufficient to establish his identity as the shooter, (2) the trial court erred by admitting defendant's novel into evidence, which was written by defendant while awaiting trial, (3) Evidence Code section 352.2 applies retroactively and renders defendant's novel inadmissible, (4) the prosecutor improperly shifted the burden of proof in his closing argument, and (5) the trial court was required to either dismiss the firearm enhancement or stay the attempted murder sentence pursuant to Penal Code section 1385. We affirm.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Facts
A. The Shooting
On the afternoon of June 9, 2021, Ryan A. drove to Woodland with his girlfriend. During the drive, Ryan A. received a phone call from defendant, who was Ryan A.'s friend and drug dealer. Defendant was angry. He accused Ryan A. of paying him with fake currency in exchange for methamphetamine. The men agreed to meet at a park so that Ryan A. could give defendant some money. Ryan A.'s girlfriend dropped him off near his mother's house in Woodland, and Ryan A. went to the park thereafter.
Later that evening, defendant and several other men arrived at the park, including defendant's adult son. Defendant and Ryan A. began to argue. As Ryan A. turned to walk away from the situation, he saw defendant's son hand defendant a firearm. Defendant then shot Ryan A. twice, hitting him in his right arm and stomach. A bullet also went through Ryan A.'s cell phone, which he was holding in his hand by his face. Defendant and his companions fled on foot. The Woodland Police arrived at the park in response to a phone call, and an officer carried Ryan A. to an ambulance while trying to stop the bleeding. Once Ryan A.'s bleeding was controlled, the officer asked Ryan A. who shot him. Ryan A. said it was a Black man named Marvin.
B. Witness Interviews and Testimony
Officers searching the scene found two nine-millimeter bullet casings, a bullet fragment, a damaged cell phone screen, and a cell phone with a bullet hole. They also spoke to two eyewitnesses. One man, S.D., drove by the park and saw a large crowd and a bald, Black man wearing a red shirt and light-colored pants. He saw the bald man raise his left hand, fire two shots, and as Ryan A. turned and fled, fire more shots in Ryan A.'s direction. S.D. saw the shooter talk to someone in a gray Chrysler 300 before running away, disappearing behind a restaurant next to the park. Another witness, J.T., heard gunshots from the park as he sat at a coffee shop across the street from a restaurant next to the park. He then saw an average-height man with a darker complexion, bald head, red shirt, and blue jeans, run down the street and into a parking lot across the street.
The following day, June 10, detectives interviewed Ryan A. at the hospital. Ryan A. again stated that "Marvin" shot him, though he did not know Marvin's last name. According to Ryan A., Marvin shot him because Ryan A. had paid him for an ounce of methamphetamine with "fake" money. He described Marvin as a Black man in his 50's with a bald head, mustache, and a black car, who lived by a fast-food restaurant, on a street called Alice. He said Marvin wore a burgundy shirt during the shooting. Detectives showed Ryan A. surveillance footage of defendant running away after the shooting, and he identified the person as Marvin, the man who shot him. The detectives also showed Ryan A. a headshot of defendant, whom Ryan A. again identified as Marvin, the shooter. Ryan A. also identified defendant as "Marvin" at trial. However, while testifying at trial, Ryan A. said he could no longer remember details of the shooting or the facts he told the detectives on June 10, 2021, and he could not say that defendant shot him. He further testified that on the day of the shooting he had been awake for four days, using drugs, and drinking. Ryan A. confirmed that he had been wearing a Raider's jersey when he was shot.
On June 11, 2021, detectives interviewed a man, J.L., who was at the park when Ryan A. was shot. When officers first interviewed J.L. on the day of the shooting, J.L. told them he was asleep behind a tree and did not see anything. However, on June 11, two days after the shooting, J.L. told a detective that he had not actually been asleep; he lied at the time because he did not "want to snitch with people watching." He said that in truth, defendant, whom J.L. identified in a headshot, arrived at the park on the afternoon of June 9 in a gray Chrysler 300, looking for Ryan A. J.L. had known defendant for a couple of weeks and had seen him about four times. He knew defendant to be Ryan A.'s drug dealer. According to J.L., on the afternoon of June 9, defendant sat in his parked car for several hours until Ryan A. arrived. Ryan A. eventually arrived "mad" and yelling "a bunch of bullshit." Defendant exited his car with his son and three other men. Defendant's son yelled that Ryan A. "punked" his dad and owed his dad, and told Ryan A. to empty his pockets. J.L. described defendant as wearing Levi's and a shirt, while his son was "short," "chunky," had an "afro," and was wearing a red shirt. The men argued and talked. Then, defendant grabbed a Glock semiautomatic firearm from his son and shot at Ryan A. three or four times. Ryan A., bleeding everywhere from the gunshot wounds, walked back and forth, yelling that defendant was "gonna get it." The men with defendant took defendant's gun and drove off in the Chrysler, while defendant walked away. At trial, J.L. reverted to his original statement, testifying that he was asleep in the park at the time of the shooting. He further testified that he did not remember any of the June 11, 2021 statements he made to police.
M.P., an unhoused woman and friend of defendant was at the park at the time of the shooting. She testified that she was sitting with J.L. and two other men by a tree in the park, had been up "for quite a few days," and had smoked methamphetamine with J.L. under the tree. M.P. heard two or three gunshots and Ryan A. screaming that he needed help because he had just been shot. M.P. and several others assisted Ryan A., and someone called 911. M.P. did not hear an argument between Ryan A. and defendant before the shooting, nor did she see defendant at the park that day. M.P. said she did not like to snitch to the police, and that it is "against the rules" to snitch to the police. An investigator testified that he interviewed M.P. before trial, and that she stated Ryan A. had told her that the shooting was over a fake $100 bill.
B.R. was working on a gas service meter at the restaurant across the street from the park on June 9, 2021. While inside his truck he heard a couple of gunshots and saw a man running away. It appeared to him that someone was shooting at the man running. As B.R. drove away, he saw three men walking towards a white four-door sedan parked across the street. The day after the shooting, B.R. described the shooter to an officer as a heavyset Black male wearing a white baseball cap with red lettering, a red shirt, lightcolored pants, and red Nike shoes. He also told detectives that he heard what sounded like two gunshots, looked up, and then heard two or three more gunshots. Several months later, B.R. told an investigator that he heard three gunshots, and that the shooter was wearing a red shirt, baseball cap, and red Nike shoes.
T.G. was working at his clothing business across the street from defendant's apartment on Alice Street on June 9, 2021, when he heard gunshots from the park. Shortly thereafter, he watched his surveillance camera in his shop and saw some individuals who were "associated with what goes on across the street" going "in and out" of the parking spots in front of his business.
Another man, S.D., told an officer that he saw two men standing near a tree in the park on June 9, 2021, when he heard a gunshot. He saw a man shooting towards a victim, who was running away. S.D. also saw men leave in either a Chevy Tahoe or a Chrysler vehicle, and said that he believed the Tahoe was involved in the shooting because a man who exited the Tahoe was in the park at the time of the shooting.
C. Surveillance Videos
The jury viewed surveillance videos of a man who appeared to be defendant from multiple businesses and street cameras near the park.
A 7:19 p.m. video showed two men in red shirts-one with light-colored blue jeans or pants (defendant) and one with dark-colored pants-at the park. A man in a white shirt and a man in a black shirt also were nearby.
At 7:20 p.m., a man in a Raider's jersey appeared to speak to defendant near the basketball court in the park. A group of people gathered around. At 7:23 p.m., defendant moved his arm parallel to the ground. The four men then disappeared out of view, appearing to leave as a group, with the man in the red shirt and light-colored pants jogging away while the others walked quickly. There appeared to be commotion around the basketball court.
Another video showed a bald man with dark skin, blue jeans, and dark-colored shoes (identified as defendant) running in front of a restaurant at 7:24 p.m., and a darkcolored Chrysler 300 driving by. Then defendant, in a red shirt, came out from behind the bushes at 7:25 p.m. At 7:26 p.m., defendant, shown with a bald head, dark complexion, light blue jeans, and dark-colored shoes, walked by the strip mall across from the park. He then entered a laundromat for approximately two minutes, appeared to use his cell phone, sat down numerous times while holding the cell phone to his ear, and looked towards the parking lot, without doing laundry. He left the laundromat at 7:28 p.m. and a street camera showed defendant walking towards a fast-food restaurant near Alice Street. The fast-food restaurant's surveillance footage showed a person with a red shirt take off his shirt in the parking lot, which a maintenance worker later found. The detective testifying to the content of the videos also stated that on the day after the shooting, another detective showed him a still shot from the videos of a Black male with dreadlocks and a red shirt.
D. Defendant's Novel
While in jail awaiting trial, defendant wrote a foreword and several chapters of a novel that he titled "The Evil Inside Me." He mailed the excerpt to his son, along with a letter requesting his son submit the novel for publication. A detective intercepted it from the outgoing mail. The foreword, written from defendant's perspective, stated as follows: "I thought how could this happen to me. This is the first contact with the law, in over 22 years, not even traffic tickets. So as I sit here, I come up with Milton and Melvin, one person, two different attitudes. Milton, quiet, very conservative, and doesn't like trouble, will walk away. Melvin, also very conservative but sneaky and welcomes trouble and never see him coming. Both brothers will do anything for their family, very, very protective. But Melvin is even more protective when it comes to his brother, Milton. They never fight each other physically. Their battle is good or evil. Whenever there's a problem, they might argue who's going to handle it. Milton prefers quiet and fast while Melvin prefers loud and messy but will settle for simple as long as no harm comes to Milton.
"Now, most of the time it's simple to decide but there are supernatural forces going on that make it more difficult to decide. As their battle is going on, Milton notices a lot of changes that he doesn't understand and that the only person that can help him understand is Mary, his mom. After Mary explains Milton's wants and needs to go deeper to find out even more information to get to the truth, only then will he be able to live with the evil inside of him.
"Now, we know it's a proven fact that you can't have one without the other in anything. Like there's no up without down. No right without left or life without death. Then like in this case, no Milton without Melvin and no good without evil."
In the novel, Melvin, the "bad one," sells marijuana and is "suppressed until anger comes out," when he appears to protect Milton. Melvin always handles problems for Milton with threats and with a gun. In one scene, Melvin shoots four men in the park because they threatened to take his girlfriend. Thereafter, Melvin disappears, and Milton begins selling marijuana and enjoying the life of a drug dealer. He begins to sell cocaine and heroin, and describes "junkies" as people who will "sell their own family out to avoid going to jail" because they need "another fix." In the fourth chapter, Milton becomes angry when he learns from his middleman that a "junkie" does not have enough money to pay him for drugs. Melvin arrives and "says he's got it." The document continues: "Next thing I know, I hear Melvin say, 'Motherfucker, give me all your money before I have all your brains on that window,' and hit him in the face with his gun. After that, I was on my way home. I don't even remember seeing him get in the car. But as I pulled into the streets, Melvin was smiling in the backseat and said, 'Told you I got you, Brother.' Ever since that day, word got back out don't fuck with Milton because Melvin is always around."
II
Procedural Background
A jury found defendant guilty of attempted second degree murder (§§ 664, subd. (a), 187, subd. (a)) and assault with a semiautomatic firearm (§ 245, subd. (b)). With respect to both counts, the jury also found true that defendant personally used and discharged a firearm, causing great bodily injury (§ 12022.53, subds. (b)-(d)) and inflicted great bodily injury (§ 12022.7, subd. (a)).
The trial court sentenced defendant to 27 years in prison, comprised of the midterm of seven years for attempted murder, plus a consecutive term of 20 years for the firearm enhancement (§ 12022.53, subd. (c)); and a concurrent seven-year term for assault with a firearm. The trial court dismissed one of the firearm enhancements attached to the attempted murder conviction (§ 12022.53, subd. (b)), and stayed the remaining firearm (§§ 12022.5, subd. (a), 12022.53, subd. (d)) and great bodily injury enhancements (§ 12022.7, subd (a)) for both counts.
We note that no party has challenged the trial court's decision to dismiss the section 12022.53, subdivision (b) enhancement rather than stay it, and to stay the section 12022.53, subdivision (d) enhancement rather than strike it.
DISCUSSION
I
Sufficiency of the Evidence
Defendant first contends that there was insufficient evidence to establish his identity as the shooter, such that his convictions must be reversed. We conclude that substantial evidence supports the verdict.
In reviewing a defendant's challenge to the sufficiency of the evidence, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence. (People v. Clark (2011) 52 Cal.4th 856, 942.) Substantial evidence is evidence that is credible, reasonable, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
If substantial evidence supports the verdict, we defer to the trier of fact and do not substitute our evaluation of witness credibility for that of the jury. (People v. Snow (2003) 30 Cal.4th 43, 66.) If the record supports the jury's findings, our belief that the circumstances might also reasonably support a contrary finding does not warrant a reversal of judgment. (People v. Abilez (2007) 41 Cal.4th 472, 504.) A reviewing court is "not free to reform the verdict simply because another theory is plausible." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 490.)
Defendant's arguments rely primarily on the two witness recantations, potential inconsistencies among the eyewitness testimony, and the lack of visual clarity in the video evidence. With respect to witness recantations, defendant observes that although Ryan A. initially told police that defendant shot him over drug money, Ryan A. later testified that he did not see who shot him, and that everything he said about the shooting was secondhand information he heard from others. Similarly, while J.L. initially gave the police a detailed description of the shooting, and identified defendant as the shooter, J.L. later testified that he was asleep by a tree when Ryan A. was shot and did not see the shooting.
When a witness's trial testimony is inconsistent with the witness's prior statement, a jury may assess the veracity of both statements, even if the witness later denies the earlier assertions. (People v. Zapien (1993) 4 Cal.4th 929, 953-954; People v. Homick (2012) 55 Cal.4th 816, 859.) With respect to identifications, the trier of fact must assess a witness's in-court identification testimony in light of all relevant factors, including any prior inconsistent identifications. (See People v. Wright (1988) 45 Cal.3d 1126, 1128, 1139, fn. 9.) Our Supreme Court has explained that "an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification . . . The failure of the witness to repeat the [out-of-court] identification in court does not destroy its probative value...." (People v. Cuevas (1995) 12 Cal.4th 252, 265.) An out-of-court identification can be sufficient by itself to support a conviction, depending on the circumstances. (Id. at pp. 267-268.) Thus here, the jury was free to determine whether it believed Ryan A. and J.L.'s statements to the police, or their testimony in court, based on which statements were more credible. The verdict reflects the jury's findings that their initial statements to the police were truthful. On appeal, we may not substitute our own credibility determinations for that of the trier of fact, even if a different outcome is possible. (People v. Snow, supra, 30 Cal.4th at p. 66.)
Further, the record disclosed possible bases for a jury to find that Ryan A. and J.L. had reason to recant." 'As long as there is a reasonable basis in the record for concluding that the witness's "I don't remember" statements are evasive and untruthful, admission of his or her prior statements is proper.'" (People v. Ledesma (2006) 39 Cal.4th 641, 711.) Here, J.L. explained that he did not initially tell the police what he witnessed because he feared being viewed as a "snitch." Ryan A., in turn, had a friendship with defendant prior to the shooting. He saw defendant as family and sought to absolve himself of responsibility for defendant's arrest, testifying: "I still see him as a friend. I'm not the one who put him in a jail shirt. I'm not the one that put him in jail. I didn't call the cops on Marvin." He then continued, somewhat vaguely, "You know, I don't know if he shot at me. I don't think this man shot me." Further, M.P. testified that "snitching" to the police was "against the rules" in their community. Based on the potential motivations of the witnesses, and the evasiveness of their trial testimony, the jury had reason to question the reliability of Ryan A.'s and J.L.'s retractions, and instead relied on their original, detailed statements to the police, made shortly after the crime.
When assessing the admissibility of the witnesses' prior inconsistent statements, the trial court remarked both Ryan A. and J.L.'s lack of memory on the stand strained credibility and seemed purposely evasive based on their demeanor and mannerisms.
Defendant similarly points to the minor inconsistencies among the eyewitness testimony, and discrepancies between their testimony and the video evidence. For example, while he concedes that the witnesses consistently described the shooter as bald and in a red shirt, he notes that witnesses gave conflicting testimony about the shooter's shoe color and accessories and whether the shooter left the scene in a vehicle. He also argues surveillance videos showed two men wearing red shirts at the scene of the shooting, yet did not clearly show who actually shot the victim. But again, "[r]esolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.) Indeed, the jury in this case was instructed that it should not automatically reject testimony just because of inconsistencies or conflicts.
The ultimate determination is whether a reasonable trier of fact could have been found for the People based on the whole record. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) Here, substantial evidence taken from the record as a whole supports the jury's verdict. Ryan A. knew defendant as his friend and drug dealer. Immediately after the shooting, Ryan A. told an officer that he was shot by a Black man named Marvin. He reasserted this identification during his interview the next day. During the interview, Ryan A. further explained that he went to the park to meet defendant at his request, arriving at the park shortly before 7:30 p.m., where defendant, accompanied by his son and several other men, angrily confronted him for paying for methamphetamine with counterfeit money. Ryan A. stated that defendant obtained a semiautomatic firearm from his son and shot Ryan A. twice as Ryan A. tried to flee. J.L. also told police that he witnessed defendant shoot Ryan A. with a semiautomatic handgun in the park. M.P. informed police that Ryan A. told her that the shooting was over a fake $100 bill. Two eyewitnesses, S.D. and B.R., described the shooter as a man matching defendant's description.
The video evidence showed defendant, in a red shirt, near the park immediately before the shooting, then appearing to speak with Ryan A., raising his arm parallel to the ground, and then quickly leaving the park immediately after towards the direction of his apartment on Alice Street. Regardless of minor inconsistencies and any witness recantations, a reasonable jury could conclude from the foregoing evidence that defendant was the shooter.
II
Defendant's Jailhouse Novel
Next, defendant argues that the trial court abused its discretion by deeming a portion of defendant's novel admissible under Evidence Code sections 1101 and 352. We agree that the trial court's admissibility ruling was made in error, but we find the error was harmless.
A. The Trial Court's Ruling
At a pretrial hearing, defendant moved to exclude chapters from his fictional novel, which he wrote in jail while awaiting trial. Defendant argued that it was highly prejudicial and not probative, and thus properly excluded under Evidence Code section 352. The prosecutor argued it was admissible because the foreword states that the novel is a reflection of how defendant ended up awaiting trial for attempted murder. While the prosecutor conceded it was a work of fiction, he argued there were "obvious allusions" to defendant based on the names of the characters and their activities. Specifically, he identified the scene in which the characters Milton or Melvin attacked a person who could not pay for drugs as similar to the charged crimes. The trial court stated that the excerpts sounded relevant, but said it could not conduct an Evidence Code section 352 balancing without reading the document.
Several days later, defendant filed a written objection to the exhibit. He objected on constitutional grounds, argued it was more prejudicial than probative under Evidence Code section 352, and argued it was inadmissible character evidence under Evidence Code section 1101, subdivision (a). Defendant asserted that the People must articulate a theory of admissibility under Evidence Code section 1101, subdivision (b), which permits character evidence for various specified non-character purposes. The People did not file a response.
That same day, the trial court conducted a second hearing on defendant's objections to the novel. The trial court overruled the constitutional objections and the Evidence Code section 1101 objection. With respect to the latter, it said, "I think-well, [it] doesn't look like it's being submitted necessarily for character evidence is what I'm hearing from you, [prosecutor]?" The prosecutor responded, "Correct," and the trial court concluded, "All right. Overruling that." Finally, while the court acknowledged the evidence was prejudicial, it also found it "highly probative" and thus admissible under Evidence Code section 352.
B. Evidence Code Sections 1101 and 352
Evidence Code section 1101, subdivision (a), prohibits the admission of character evidence "to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) Subdivision (b) of Evidence Code section 1101 then "clarifies the scope of subdivision (a)." (People v. Guzman (2019) 8 Cal.5th 673, 689.) It provides that character evidence is admissible "when relevant for a noncharacter purpose-that is, when it is relevant to prove some fact other than the defendant's criminal disposition, such as 'motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake [of fact] or accident.'" (People v. Hendrix (2013) 214 Cal.App.4th 216, 238, citing Evid. Code, § 1101, subd. (b).)
Under Evidence Code section 352, the trial court has discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Therefore, even if the evidence is admissible for one of the purposes stated in Evidence Code section 1101, subdivision (b), it still must be excluded if its probative value is outweighed by Evidence Code section 352 concerns. (People v. Lewis (2001) 25 Cal.4th 610, 637.)
"We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
C. Analysis
Defendant's novel constitutes irrelevant and improper character evidence, which does not fall under any category of admissibility. It is a quasi-fictional account of defendant's life, describing how "Milton" fell in love, got married, had a child, and became a drug dealer. Whenever Milton had "issues," his supernatural, evil twin brother Melvin appeared and "took care of them," through violence and threats, so that "all the junkies know who they will have to deal with if there[']s a problem, no one wants to see Melvin com[]ing." These excerpts thus provided generic character evidence suggesting defendant was unable to control his cruel and violent nature. This is precisely what Evidence Code section 1101, subdivision (a) prohibits.
Of course, Evidence Code section 1101, subdivision (b) permits evidence of prior acts for various specified purposes. However, neither the prosecutor nor the trial court articulated any such basis for admissibility under subdivision (b), nor can we discern one. Specifically, we struggle to see how the stories in this novel provide evidence of defendant's opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident, with regard to the charged crimes. (Evid. Code, § 1101, subd. (b).)
At the outset, any potential relevance under one of Evidence Code section 1101, subdivision (b)'s specified categories is greatly diminished because the excerpt is a form of defendant's artistic expression, and not necessarily based in reality. "In general, '[r]easonable persons understand. . . poetic conventions as the figurative expressions which they are,' which means they 'are not intended to be and should not be read literally on their face, nor judged by a standard of prose oratory.'" (In re George T. (2004) 33 Cal.4th 620, 636-637.) Here, the novel does not purport to be pure fiction or fact. Rather, the foreword states that defendant's "inspiration to write this book" came from his arrest, as he sat in his jail cell and thought "How could this happen to me[?]" So, he explains he "c[a]me up with Milton and Melvin," who "might argue" about how to handle a problem, because "there are super natural forces going on that mak[e] it more difficult to decide." Thus, the foreword makes it clear that the novel is merely inspired by his current circumstances, and is not an autobiography. While this means there are apparent parallels between defendant and the novel, such as the main characters' names and history with drug dealing, it is unclear what stories, characters, and details in the novel were falsified and which are true. Even the prosecutor acknowledged to the jury that the novel was "a sensationalized account" with only "aspects to the truth." And crucially, the jury was given no guidance for parsing fact from fiction. As an appellate court has explained with respect to a similar form of written expression, lyrics, "[a]bsent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal. [Citations]." (People v. Coneal (2019) 41 Cal.App.5th 951, 968-969.) Here, the jury was left to reach whatever conclusions they wished about defendant's prior acts from the quasi-fictionalized story of his life, regardless of their truth. This blending of reality and fantasy, with no way to parse the two, rendered the novel's probative value virtually nonexistent.
Indeed, even if we strain credulity and accept all the crimes in the story as true, i.e. as confessions of crimes that defendant committed in the past, the connection between the uncharged and charged crimes is far too tenuous to be relevant. The prosecutor argued at closing that the chapters were "the closest thing we have to a confession in this case," indicating that the People sought to use the novel as evidence of identity. Yet there is no compelling connection between the portion of the story that the prosecutor points to and the charged crimes. When assessing the admissibility of uncharged acts," '[T]he trial court" '"' [] must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.'" [Citation.] If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.'"' [Citations.]" (People v. Clark (2021) 62 Cal.App.5th 939, 964, italics omitted.) Where, as here, the ultimate disputed fact is one of identity, evidence of an uncharged offense is only relevant if it "share[s] with the charged offense characteristics that are '" so unusual and distinctive as to be like a signature." [Citation.]'" (People v. Balcom (1994) 7 Cal.4th 414, 424-425.) In that case, "[t]he highly unusual and distinctive nature of both the charged and uncharged offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense." (Id. at p. 425.)
On appeal, the People primarily argue that two scenes in the novel are relevant due to their similarity to the charged crimes. In the first scene, the Milton character is walking in the park with his future wife, when four men catcall her. Milton goes home angry, and Melvin appears, says, "I got this," goes to the park, and shoots all four men in the legs. In the later scene Milton's middleman, Snoop, sells drugs to a driver, who does not have enough money to pay because he needs the money to buy tools for himself. Milton feels himself getting angry, so he sits down. Melvin appears, says, "I got this," and says to the customer, "Mother [f]ucker give me [a]ll my money before [I] have all your [b]rains on that window." Then Melvin hits him in the face with a gun. While these accounts share some general characteristics with the charged crimes, they fall far short of revealing a highly unusual and distinctive stamp, which would indicate the charged crime could only have been committed by defendant. There are many significant differences between the charged and uncharged crimes, such as the manner of assaults, the number of victims, the location of the crimes, the people present, and the motivations behind the assaults. And, of course, the descriptions of these acts comprise only a few of the approximately 40 pages of the novel, the rest of which bears even less similarity to the charged crimes.
As there is little basis to find the novel relevant, and it amounted primarily to inadmissible and potentially prejudicial character evidence, we conclude the trial court abused its discretion by admitting it. Nonetheless, we find the error harmless.
To show reversible error under state law, defendant must show a reasonable probability of obtaining a more favorable result at trial had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant concedes that the erroneous admission of evidence is typically reviewed for prejudice under Watson, but argues that we should examine prejudice under the stricter federal standard set forth in Chapman v. California (1967) 386 U.S. 18, (Chapman) because the admission of the novel amounted to a due process violation. We disagree that Chapman, under which the People bear the burden of showing the error was harmless beyond a reasonable doubt, applies here. (Id. at p. 24.)
"To prove a deprivation of federal due process rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' ([Citation], italics omitted.) 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citation.]' [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230, fn. omitted.) We cannot say that the novel, which took up little time compared to the extensive victim and eyewitness testimony, police testimony, and video recordings, and was not presented as pure fact, but rather some undefined mix of fact and fiction, rendered the trial fundamentally unfair. Accordingly, we assess for error under Watson. (People v. Partida (2005) 37 Cal.4th 428, 439.)
Here, it is not reasonably probable that defendant would have obtained a more favorable result had the novel been excluded from evidence. As discussed, ante, the jury heard ample evidence that defendant shot Ryan A.; in fact, the verdict is supported by substantial evidence, including Ryan A. and J.L.'s identification of defendant as the shooter, multiple eyewitness accounts of someone matching defendant's description of shooting Ryan A., and video evidence of defendant in the moments before and after the shooting. As the People presented abundant evidence identifying defendant as the shooter, it is not reasonably probable that the jury would have reached a different verdict had the novel been excluded.
As we find the trial court's evidentiary ruling on the novel's admissibility erroneous, we need not address defendant's argument that the novel is also inadmissible under the newly enacted Evidence Code section 352.2. Nonetheless, we note that Evidence Code section 352.2 went into effect in January 2023, months after defendant received his sentence. (Evid. Code, § 352.2, as added by Stats. 2022, ch. 973, § 2, eff. Jan. 1, 2023.)
III
The Prosecutor's Rebuttal Closing Argument
Defendant next asserts that the trial court abused its discretion by overruling a burden-shifting objection to the prosecutor's statement, in his rebuttal at closing, that there was "no actual evidence of Defense's theory" of the crime. We find no error in the trial court's ruling.
A. Additional Procedural Background
During closing arguments, defense counsel argued that the prosecutor had "blind adherence" to the theory that defendant shot Ryan A. He proposed an alternative version of events, in which defendant's son shot Ryan A. because Ryan A. was high on drugs, agitated, and verbally abusing his dad. This theory was based on the surveillance video, which showed part of the confrontation in the park (but did not clearly show the gun or the shooting), and the fact that two men wore red shirts.
In rebuttal, the prosecutor replayed the surveillance video, and explained why he believed it supported the People's version of events. He described how defendant was the only person in the video who raised his arm, while another person "jump[s] back and get[s] away" out of fear because defendant "just fired some shots at [Ryan A.]." The prosecutor continued, "Is this blind adherence to a story? No. Because there's no actual evidence of the Defense's theory."
Defense counsel then made a "burden shifting" objection. The trial court responded, "I'll remind the jury this is just argument. This is not facts. This is not evidence. This is simply [the prosecutor's] take on the evidence. It is your determination of what the evidence is." Defense counsel reasserted the objection, extrapolating that "[t]he objection I'm making is burden shifting. I have no burden to put on evidence." The trial court said, "Same ruling. This is not evidence. This is the law that you will see and jury instructions. What [the prosecutor] represents is the law is not the law and it goes to the same with the facts, . . . what you perceive is the facts. What I give in the instructions is the law. Nothing more. Nothing less. And what [the prosecutor] says on those matters is just what [the prosecutor] thinks is the situation."
B. Analysis
" '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citations.]'" (People v. Hill (1998) 17 Cal.4th 800, 829-830 (Hill).) A "prosecutor's argument cannot refer to the absence of evidence that only the defendant's testimony could provide." (People v. Brady (2010) 50 Cal.4th 547, 565-566.) However, it is fair for a prosecutor to comment "on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses." (Id. at p. 566.)"' "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." [Citation.]'" (People v. Carter (2005) 36 Cal.4th 1215, 1263.) "We review claims of prosecutorial misconduct under an abuse of discretion standard [citation], asking whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation]." (People v. Dworak (2021) 11 Cal. 5th 881, 910.)
Here, it is not reasonably likely that the jury construed the prosecutor's remarks in an objectionable manner. We find this case analogous to People v. Bradford (1997) 15 Cal.4th 1229. In Bradford, the prosecutor made "brief comments" during the closing argument "noting the absence of evidence contradicting what was produced by the prosecution on several points, and the failure of the defense to introduce material evidence or any alibi witnesses." (Id. at p. 1339.) The trial court found the comments did not shift the burden of proof to defendant, because the trial court prompted the prosecutor to reiterate the parties' burdens, and because "[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (Id. at p. 1340.)
So too here, the prosecutor did not assert that defendant was obligated to produce evidence on his own behalf to prove his innocence. Rather, his statement was a fair observation of the state of the evidence. Specifically, he permissibly argued in response to defense counsel's comments that while the People's theory was supported by the evidence, defendant's theory was not, such that the People had a logical basis (beyond "blind adherence") to argue that defendant was the perpetrator. Further, as in Bradley, the trial court did not simply overrule the objection, but also reminded the jury that the prosecutor was arguing his view of the evidence, and that the applicable law was found in the jury instructions. The jury instructions, in turn, contain an instruction on reasonable doubt, explaining that the People bear the burden of proving that defendant is guilty beyond a reasonable doubt. And, defense counsel reiterated the reasonable doubt standard at closing. We find no error in the trial court's ruling.
Although defendant relies on Hill, supra, 17 Cal.4th at page 800, we find it distinguishable. In Hill, the prosecutor explained reasonable doubt to the jury by stating," 'There has to be some evidence on which to base a doubt,'" and when the defense counsel objected to that the prosecutor was" 'putting the burden on me,'" the trial court "chastised" defense counsel and overruled his objection, retorting:" 'No, that's not. That's your interpretation of it.'" (Hill, at p. 831, fn. 3.) The prosecutor then repeated,"' There must be some evidence from which there is a reason for a doubt.'" (Id. at p. 831.) The Supreme Court said the question of whether that constituted prosecutorial misconduct was "arguably [] close," but concluded that the jury was reasonably likely to understand the comments to mean "defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt." (Id. at p. 832.) Thus in Hill, unlike here, the prosecutor affirmatively stated that reasonable doubt must be proven by evidence, and rather than clarify this misstatement of law, the trial court (as it did consistently throughout the trial in that case), both failed to correct the prosecutor and potentially biased the jury by scolding defense counsel, prompting the prosecutor to again misstate the law without clarification. Here, in contrast, the prosecutor simply noted that the defense theory appeared speculative, drew the jury to the evidence as the People viewed it, and the trial court explained that the applicable law was found in the instructions.
Based on the foregoing, we find no abuse of discretion because there is no reasonable likelihood that the jury misapplied the prosecutor's remarks and defendant was not denied due process.
IV
Firearm Enhancement under Section 1385
Defendant argues that the trial court erred by failing to strike his section 12022.53, subdivision (c) firearm enhancement under section 1385 because (1) imposing the enhancement resulted in a sentence greater than 20 years, which section 1385 prohibits, and because (2) the trial court did not make an express finding that dismissal would endanger public safety before imposing the enhancement. We disagree.
A. Procedural History
Before the sentencing hearing, the People submitted a brief arguing that the trial court should sentence defendant to 32 years to life in prison, comprised of seven years for attempted murder, plus 25 years to life for the enhancement of discharging a firearm causing great bodily injury (§ 12022.53, subd. (d)), and stay the remaining count and enhancements. The People asserted their view that section 1385, subdivision (c) did not mandate dismissal of enhancements that resulted in a prison sentence of over 20 years, dismissal of the enhancements was not in the interests of justice, and the court need not afford great weight to any of the statutory considerations weighing in favor of dismissal because defendant posed a risk of danger to public safety. Defendant, in turn, contended that section 1385, subdivision (c)(2)(C) prohibits the imposition of an enhancement that would result in a sentence of over 20 years (in this case, § 12022.53, subds. (c), (d)), where, as here, dismissal of the enhancements would not endanger public safety. He argued that 17 years was the appropriate term.
At the hearing, Ryan A.'s mother read an impact statement, and the parties argued their positions. Ultimately, the trial court sentenced defendant to a 27-year prison term. It first acknowledged that defendant had not committed any serious crimes for the past two decades, and that defendant may not have been the catalyst behind his crimes. Nonetheless, the court stated that the crime was "the most serious one that we have," and the fact Ryan A. was not killed was "almost a matter of happenstance" because the paramedics arrived so quickly. The court believed the sentence to be "significant" and that "at 27 years [defendant] probably isn't coming back out, and if he does, he'll be an old man." To reach the 27-year sentence, the court imposed a seven-year sentence for attempted murder and a 20-year firearm enhancement (§ 12022.53, subd. (c)), dismissed the 10-year firearm enhancement, and stayed the sentence for assault with a firearm and for the remaining enhancements.
Several weeks later, defense counsel filed a motion to recall and correct defendant's sentence. Defendant asserted that the parties failed to consider California Rules of Court, rule 4.447 (rule 4.447), as defense counsel was unaware of the rule at the sentencing hearing. Defendant interpreted rule 4.447 to mean that the court must stay any part of a sentence that "exceeds the applicable limitation" on sentences from certain enhancements, as set forth in section 1385, subdivision (c). He argued that the 27-year sentence was therefore unauthorized, as it exceeded 20 years, which is the limit set forth in section 1385, subdivision (c)(2)(C). He asked the trial court to instead stay the sevenyear term for the attempted murder conviction so that defendant's sentence was 20 years. The People opposed the motion, arguing the trial court properly understood and exercised its discretion under section 1385, subdivision (c). The trial court held a second sentencing hearing, where it requested supplemental briefs on the proper interpretation of rule 4.447, which the parties submitted.
The trial court issued a written ruling denying defendant's motion for resentencing. In doing so, it found that rule 4.447 simply restates the discretion set forth in section 1385, subdivision (c), explaining: "[A] court can strike an enhancement if it results in a sentence over 20 years pursuant to subdivision (c)(2)(C), but it does not have to if it is not in the further[ance] of justice to do so, and specifically if doing so would endanger public safety, as set forth in the statute itself." The trial court further explained that at the initial sentencing hearing, it relied on section 1385, subdivision (c) and found that "the interests of justice-primarily the defendant's advanced age and, secondarily, the Court's belief the defendant may have been led or provoked to commit the crime by others" were served by ordering "several enhancements stayed or struck, and sentenced the defendant to a determinate term of 27 years.... The Court adopted the People's reasoning regarding the serious and dramatic nature of the crime in sentencing defendant to the 20-year enhancement pursuant to § 12022.53[, subdivision] (c), and thereby found it was not in the interest of justice, and would endanger public safety, to strike this 20-year enhancement."
B. Senate Bill No. 81
"In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) . . . which amended section 1385 to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.)" (People v. Sek (2022) 74 Cal.App.5th 657, 674.) These factors are set forth in subdivision (c)(2) of section 1385. (Sek, supra, at p. 674, fn. 7.)
Section 1385, as amended, provides: "Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1).) "In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety." (§ 1385, subd. (c)(2).) The pertinent mitigating circumstance here is set forth in section 1385, subdivision (c)(2)(C): "The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." (§ 1385, subd. (c)(2)(C).)
We review the trial court's refusal to dismiss an enhancement under section 1385 for abuse of discretion, which in this case depends on the scope of that discretion under the statute, a question of statutory interpretation that we review de novo. (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490.)
C. Analysis
We initially address defendant's argument that section 1385, subdivision (c)(2)(C) requires the trial court to dismiss an enhancement where, as here, application of the enhancement could result in a term of over 20 years. Defendant recognizes his interpretation of the statute runs contrary to every published case that has analyzed this language, but nonetheless urges us to view the "shall be dismissed" language as a directive, depriving the court of discretion to dismiss the enhancement, regardless of public safety considerations. We agree with the body of case law interpreting this provision as discretionary, rather than mandatory.
As set forth above, the language in section 1385, subdivision (c)(2)(C) states the following mitigating circumstance: "The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed." While the language "shall be dismissed" suggests mandatory dismissal, this language must be harmonized with the entirety of the statutory framework, not viewed in isolation. (People v. Mendoza (2023) 88 Cal.App.5th 287, 296-297 (Mendoza).) The appellate court in Mendoza considered the meaning of section 1385, subdivision (c)(2)(C) within the broader statutory context, and explained, "Section 1385(c)(2) provides that in determining whether to dismiss an enhancement 'under this subdivision,' the court must consider nine listed mitigating circumstances if proven by the defendant (§ 1385, subd. (c)(2)(A)-(I)), 'unless the court finds that dismissal of the enhancement would endanger public safety' (id., subd. (c)(2)). That provision means that if the court finds that dismissal of an enhancement 'would endanger public safety,' then the court need not consider the listed mitigating circumstances. [Fn. omitted.] (§ 1385 [,subd.] (c) (2).) The 'shall be dismissed' language in section 1385(c)(2)(C), like the language of all of the listed mitigating circumstances, applies only if the court does not find that dismissal of the enhancement would endanger public safety. That interpretation gives meaning to the language in section 1385(c)(2) requiring the court to consider whether dismissal 'would endanger public safety,' and it consequently avoids rendering that language surplusage." (Mendoza, supra, 88 Cal.App.5th at p. 296.)
We agree with Mendoza and the other cases addressing this issue, which conclude that, when read as a whole, section 1385 subdivision (c)(2)(C) only applies after the court makes a discretionary public safety determination, and only if the court finds public safety would not be endangered by dismissal. (Mendoza, supra, 88 Cal.App.5th at p. 296; see also, People v. Anderson (2023) 88 Cal.App.5th 233, 241, review granted Apr. 19, 2023, S278786, briefing deferred; People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098 (Ortiz), review granted Apr. 12, 2023, S278894, briefing deferred; People v. Lipscomb (2022) 87 Cal.App.5th 9, 15-21; People v. Walker (2022) 86 Cal.App.5th 386, 396, review granted Mar. 22, 2023, S278309, fully briefed.)
Our interpretation is not affected by the newly amended rule 4.447, which defendant appears to contend supports his reading of section 1385, subdivision (c)(2)(C), and requires that we (alternatively) stay the seven-year attempted murder term so that his sentence does not exceed 20 years. This rule states that "Except pursuant to section 1385(c), a court may not strike or dismiss an enhancement solely because imposition of the term is prohibited by law or exceeds limitations on the imposition of multiple enhancements. Instead, the court must: (1) Impose a sentence for the aggregate term of imprisonment computed without reference to those prohibitions or limitations; and (2) Stay execution of the part of the term that is prohibited or exceeds the applicable limitation ...." (Rule 4.447(1), (2), italics added.) We read this rule to merely reiterate the court's discretion under section 1385, subdivision (c). Indeed, the rule expressly carves out the ability for the court to strike an enhancement as illegal under section 1385, subdivision (c), thereby simply restating the court's discretion under section 1385, subdivision (c). The rule is irrelevant to the question of whether section 1385, subdivision (c)(2)(C) is mandatory on its face or, as we conclude here, dependent on the court's discretionary public safety determination.
Next, defendant contends that section 1385, subdivision (c)(2) creates a rebuttable presumption requiring dismissal of an enhancement unless rebutted by a finding that dismissal would endanger public safety. He asserts that here, the trial court implicitly and erroneously rejected the rebuttable presumption standard, as it made no initial finding that dismissing the enhancement would endanger public safety before imposing it. We again disagree with defendant's reading of the statute.
As the parties acknowledge, there is currently a split among the Courts of Appeal as to the interpretation of the requirement that courts "afford great weight" to the mitigating circumstances. (Compare People v. Walker, supra, 86 Cal.App.5th at p. 391 ["mandate to 'afford great weight' to mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless the court finds that dismissal of that enhancement-with the resultingly shorter sentence-would endanger public safety"], with Ortiz, supra, 87 Cal.App.5th at pp. 1096-1098 [neither statutory language nor legislative history suggests intent to create such a rebuttable presumption of dismissal].
We agree with Ortiz's holding, and do not read an implicit "rebuttable presumption" in the statutory language, which would mandate dismissal unless the court finds dismissal of the enhancement would endanger public safety. This interpretation would strip the court of its sentencing discretion authorized by the statute. As Ortiz explains, "The plain language of section 1385[, subdivision] (c)(2) contemplates the trial court's exercise of sentencing discretion, even as it mandates that the court give 'great weight' to evidence of enumerated factors .... Interpreting the statute, as the Walker court does . . . would divest the trial court of its ultimate discretion under the statute to determine what is in furtherance of justice, considering all relevant factors." (Ortiz, supra, 87 Cal.App.5th at pp. 1096, 1098.) Further, Senate Bill No. 81's legislative history reveals that a prior version of the bill contained the very language defendant asks us to read into the statute, as it previously imposed "a presumption that it is in the furtherance of justice to dismiss an enhancement" which could only "be overcome by a showing of clear and convincing evidence that dismissal of the enhancement would endanger public safety." (See Sen. Bill No. 81 (2021-2022 Reg. Sess.), as amended Aug. 30, 2021.) This requirement was expressly removed from the bill language that was ultimately approved. (See Ortiz, supra, at pp. 1096-1097.) We see no reason to impose a statutory requirement that the Legislature chose to remove from the statutory language.
In any event, and unlike in Walker, the trial court did purport to find that dismissal of the section 12022.53, subdivision (c) enhancement would pose a danger to public safety. At the sentencing hearing, the trial court found that the crime was "the most serious one we have" and that it was pure luck that Ryan A. was not killed. Thereafter, the trial court's ruling on defendant's motion to correct the sentence summarized its findings at the sentencing hearing, stating that it "adopted the People's reasoning regarding the serious and dramatic nature of the crime in sentencing the defendant to the 20-year enhancement pursuant to § 12022.53[, subdivision] (c), and thereby found it was not in the interest of justice, and would endanger public safety, to strike this 20-year enhancement." Accordingly, even if we accept defendant's statutory construction, defendant has failed to affirmatively show that the trial court misunderstood its sentencing discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
DISPOSITION
The judgment is affirmed.
We concur: Robie, Acting P. J. Duarte, J.