People v. Townsend

Full title: THE PEOPLE, Plaintiff and Respondent, v. TABARRI MAURICE TOWNSEND…

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

Date published: Feb 15, 2018

F072456 (Cal. Ct. App. Feb. 15, 2018)

Opinion

F072456

02-15-2018

THE PEOPLE, Plaintiff and Respondent, v. TABARRI MAURICE TOWNSEND, Defendant and Appellant.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

LEVY, Acting P.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F14906662)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Daniel B. Bernstein, Paul A. Bernardino and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Based primarily on the eyewitness identifications of the two shooting victims, a jury convicted appellant Tabarri Maurice Townsend of two counts of premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a);¹ counts 1 & 2); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 3 & 4); shooting at an occupied motor vehicle (§ 246; count 5); and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 6). Various firearm enhancements were found true. Appellant received an aggregated prison term of 80 years, which included sentences of 15 years to life for the two counts of premeditated attempted murder.

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

On appeal, appellant raises claims primarily surrounding the alleged unreliability of the victims' eyewitness identifications and the introduction of gang evidence at his trial. His contentions include, but are not limited to, instructional error, ineffective assistance of counsel, improper admission of expert opinion testimony, and improper readback of testimony to the deliberating jury. We reject these claims.

Via supplemental briefing, however, the parties agree that sentencing error occurred because the sentences imposed on the two counts of attempted murder violate sections 664 and 187, subdivision (a). The parties also agree that a recent amendment to section 12022.53 retroactively applies to appellant; this amendment permits the superior court to strike appellant's firearm enhancements at sentencing. (§ 12022.53, subd. (h).) We remand this matter for resentencing on counts 1 and 2, and to permit the trial court to exercise its discretion under section 12022.53. We otherwise affirm the judgment.

BACKGROUND

I. Relevant Facts From The Prosecution's Case.

A. The shooting.

In the early morning hours of June 29, 2014, sometime after 2:30 a.m., Cecilia Hernandez and Jose Mendoza, her boyfriend, were sitting in Mendoza's vehicle. They were parked on the street in a residential neighborhood in the west side of Fresno. Hernandez was sitting on Mendoza's lap in the driver's seat. The driver's door was open. While they spoke, a vehicle drove past them and then returned, stopping parallel to them. The other vehicle's passenger side faced them. Three men were in the vehicle.

At trial, both Hernandez and Mendoza identified appellant as the rear passenger in the suspects' vehicle. They both testified that appellant held a gun with an attached laser beam, which he aimed at Mendoza's head. They both testified at trial that the front passenger also held a gun, which he aimed at them.

The three suspects asked Mendoza several times where he was from. They asked Mendoza if he was from Strother or Eden.² Appellant asked if Mendoza was a Strother gang member, which Mendoza denied.³ Appellant said that Mexicans were going to die. Hernandez began crying and begging for her life. The suspects told her to shut up and they opened fire.

2 Strother is approximately one block away from where this event took place. At trial, Hernandez told the jury that Strother is a gang area.

3 At trial, both Mendoza and Hernandez denied that Mendoza was a gang member. No evidence was introduced suggesting that Mendoza was a gang member.

Bullets struck Hernandez in her abdomen, leg and an arm. Mendoza was shot in his arm and on his side. The suspects left "seconds later." Mendoza called 911 and law enforcement responded at approximately 2:50 a.m. Hernandez and Mendoza were transported to a local hospital.

Mendoza's injuries were not life threatening; he was treated at the emergency room and released without surgery. Hernandez, however, underwent surgery and she was unconscious on life support for about one week. She remained hospitalized for almost two months. She was unable to walk for six months. At appellant's trial, she was still going through physical therapy, and taking medications for anxiety and depression. She walked with a noticeable limp.

At trial, both Hernandez and Mendoza identified appellant as one of the two shooters. They were both certain of their identifications. They both said the other shooter was the front passenger.

B. Evidence corroborating the eyewitness identifications.

At trial, the prosecution offered evidence that corroborated, to some degree, the victims' identifications. Based on expended cartridge casings at the shooting scene, two handguns were used in this shooting: a .45-caliber and a .9-millimeter.

After law enforcement responded to the shooting scene, other officers were on patrol at approximately 3:00 a.m. These officers spotted a vehicle that matched Mendoza's description of the suspects' car. After a brief pursuit, police took three occupants into custody: Abdray Valentine was the driver; Eric Hughley was the front passenger; and appellant was the rear passenger. At trial, both Hernandez and Mendoza identified a photograph of this vehicle as the shooters' car.

Police located a .45-caliber handgun under the front passenger seat of the shooters' vehicle. The recovered .45-caliber handgun did not have an attached laser beam. However, it had a railing system that permitted a laser to be attached. No other firearm was located inside that car. Subsequent testing linked this recovered .45-caliber handgun to this shooting.

At trial, the jury learned that the suspects did not immediately yield to police when officers activated their lights and sirens. The suspects drove into a dark business area before stopping. The officers did not see the suspects throw anything from the vehicle, but it was possible they did so without being seen.

Police tested the suspects for gunshot residue. Valentine (the driver) had no residue on his hands. Hughley (the front passenger) had one particle "consistent" with gunshot residue on his hands (that is, it contained two out of three possible component metals) and he had one particle "characteristic" of gunshot residue (that is, it contained all three of the required metals of lead, barium and antimony). Appellant had no particles "characteristic" of gunshot residue on his hands, but he had one particle "consistent" with gunshot residue (that is, it contained lead and antimony) on his non-dominant right hand.

During cross-examination, the prosecution's gunshot residue expert agreed that gunshot residue would "fly everywhere" inside a vehicle if a person fired a gun from that vehicle. It was possible gunshot residue would get onto surfaces in the vehicle, such as a seat, and a person could touch that seat and pick up the residue.

Although police never recovered the second gun involved in this crime, they recovered both .45-caliber and .9-millimeter expended cartridge casings from the shooters' vehicle. The expended .9-millimeter cartridge casings were recovered behind the rear passenger seat where appellant had been sitting. These casings matched the .9-millimeter casings found at the shooting scene.⁴

4 At trial, the prosecution's firearms expert explained that the smaller casings located at the shooting scene were .38-caliber and a .9-millimeter cartridge is a "nominal" .38-caliber cartridge because these bullets have the same diameter. The firearms expert agreed that the smaller casings located in the shooters' vehicle were "consistent with" and "the same caliber" as the smaller casings recovered at the crime scene.

Prior to trial, Mendoza met with investigating detectives. Mendoza identified appellant from a photographic lineup. He also identified Valentine and Hughley. He was "certain" when making his pretrial identifications. Mendoza was able to tell the detectives where the suspects were sitting in the vehicle.

Prior to trial, law enforcement conducted an experiment at night at the scene of this crime to determine if sufficient light existed for the victims to see the shooters' faces. Officers positioned two vehicles parallel to each other in a similar fashion as occurred in this incident. A participating officer testified at trial that the lighting conditions at that location were sufficient for a person situated in Mendoza's vehicle to make a positive identification of a potential suspect in the adjoining vehicle. During cross-examination, however, the officer acknowledged that he was familiar with the detective who sat in the adjoining vehicle during the experiment. The other detective was Caucasian and did not have dark skin like appellant.

C. Evidence questioning the reliability of the eyewitness identifications.

Despite the corroborating evidence, other evidence called into question the reliability of the trial identifications.

1. Mendoza consumed alcohol on the night in question.

On the night of the shooting, Mendoza had consumed about three 24-ounce cans of beer. At the shooting scene, right after calling 911, he told a responding police officer, Nathan Jaime, that the suspects were three or four Black males.⁵ He told Jaime that there was only one shooter. While speaking with Mendoza, Jaime noticed a strong odor of alcoholic beverage emitting from Mendoza's breath.

5 Mendoza did not identify or describe the suspects during his 911 call.

2. Mendoza subsequently reported that the suspects were Hispanic.

After Hernandez and Mendoza were transported to the local hospital, Jaime had a second interview with Mendoza later that same day. According to Jaime, Mendoza changed his description of the suspects. At the hospital, Mendoza claimed there were four suspects, and he said they were Hispanic. He again said there was only one shooter, whom he described as a clean-shaven Hispanic with short hair. Mendoza continued to say the shooter was the right rear passenger, who used a gun with a laser beam. According to Jaime, Mendoza was certain the suspects were Hispanic.

At trial, Jaime told the jury that, when he concluded his interview with Mendoza at the hospital, he had believed Mendoza's initial description of the suspects was likely more accurate because it occurred right after the event. Jaime, however, also confirmed that, when he interviewed Mendoza at the hospital, he had known that officers had detained three Black suspects.

3. Hernandez and Mendoza saw the suspects from a news story.

Shortly after this crime occurred, a local news agency ran a story on television regarding the arrest of the three suspects, and the story showed their images in a picture. Mendoza saw the news story. After the story aired, Mendoza received many telephone calls from people telling him that those were "the guys." At trial, however, Mendoza told the jury that he identified the suspects based on his own memory.

After Hernandez woke from surgery, Mendoza showed her the news story and the photograph of the suspects. Mendoza told Hernandez that the suspects were in custody. At trial, Hernandez identified the photograph of the three suspects as the people involved in her shooting. She told the jury that her identification was based on her own memory.

4. A neighbor, Marcus, talks about the suspects.

Sometime after Mendoza went home from the hospital, he spoke with a neighbor, Marcus.⁶ In talking to Mendoza, Marcus referred to the three suspects shown on the news. He told Mendoza, "Those are the niggas who shot at you[.]"

6 Marcus's last name was not provided.

After Hernandez was discharged from the hospital, she also spoke with Marcus, who told her that he saw the news and he knew "those guys." Marcus told her that, on the night of this shooting, he had received a message from appellant. The message allegedly said, "We went to go shoot some niggas on Eden, him and his bitch." At trial, however, Hernandez admitted that she was not sure that appellant actually sent this message to Marcus. Marcus did not testify at trial.

5. Hernandez's and Mendoza's inconsistent statements.

During the police investigation prior to trial, detectives conducted interviews with Mendoza and Hernandez. Some of their statements with the detectives contained inconsistencies from earlier statements and/or from eventual trial testimony.

According to Jaime, Mendoza initially claimed that there was only one shooter. With detectives, Mendoza initially said he was only focused on the gun with the laser, which was pointed at him. He did not mention a second shooter. However, eventually with the detectives, and at trial, Mendoza said he saw two shooters. At trial, Mendoza claimed that he had told Jaime that he saw two shooters.

Likewise, Hernandez told detective Luis Carrillo prior to trial that she only saw one shooter, who was the right rear passenger. At trial, however, she said there were two shooters.

At trial, Mendoza testified that Hughley was the front passenger who fired a gun. According to Carrillo, however, Mendoza had claimed that Hughley was the rear passenger sitting behind the driver's seat, and Mendoza never identified Hughley as a shooter.

During pretrial interviews, Carrillo showed Mendoza a photograph of the .45-caliber handgun recovered from the suspects' vehicle. With Carrillo, Mendoza identified that firearm as the one used by the right rear passenger. At trial, Mendoza testified that this same firearm appeared to be the same "Glock" that the rear passenger held. This recovered firearm, however, was a Springfield. At trial, Mendoza said he was surprised that it was not a Glock. When asked about the missing laser, Mendoza testified that it could have been discarded.

At trial, Carrillo said he had confronted Mendoza about his previous claim that the suspects were Hispanic. During his interview with Carrillo, Mendoza claimed that Jaime must have made a mistake or had been confused. Mendoza told Carrillo that the suspects were African-American.

At trial, Mendoza explained why he might have told Jaime at the hospital that the suspects were Hispanic. During direct examination, he said the suspects tried to throw him off by saying "dog" during the crime, and he suggested that he was not thinking clearly about what happened. On cross-examination, Mendoza agreed that he thought the suspects were Hispanic because they also said "Bond Street" during the incident. He told the jury that he knew "Bond Street" referred to a gang. He told the jury that the suspects had sounded like they were Hispanic, and he claimed he told Jaime the suspects "could have been Hispanics."

At trial, Carrillo opined that the suspects yelled "Bond Street" during this incident to throw off law enforcement. Bond Street is a subset of a Fresno Bulldog gang, which is primarily Hispanic.

6. The lighting and inability to observe.

Mendoza testified at trial that the laser beam shined into his eyes. Despite the laser beam, he suggested that he kept his eyes open and saw the shooters.

When law enforcement responded to the shooting scene, the interior light in Mendoza's vehicle was not on despite the driver's door being open. At trial, certain photographs of the crime scene called into question the proximity and sufficiency of the light sources to the vehicles in question. Hernandez testified that the ambient lighting was sufficient to view the suspects in their vehicle. She claimed that a light pole was across the street shining light through treetops. A neighbor's porch light was illuminated. However, she admitted that she had stated at the preliminary hearing that the street light was directly above Mendoza's vehicle, which was not correct.

D. The gang evidence.

In addition to testifying as a percipient witness, Carrillo testified as a gang expert. Based on a booking admission, Carrillo opined that appellant was an affiliate of the "107 Hoover Crip" gang. Appellant had denied affiliation with Strother.

At trial, Carrillo explained to the jury that the Strother criminal street gang maintains a presence in the area around this shooting. The African-American gangs in Fresno use neighborhoods for gang affiliation. Generally, two different "leagues" of Black gangs, Twamp and Mug, operate in Fresno. Approximately 15 to 20 different gangs operate within these two alliances. The Strother street gang is under the Twamp alliance. Strother is comprised of approximately 95 percent African-Americans with "a handful" of Hispanics. Some gangs, such as Hoover, operate outside of the alliances. Carrillo stated that Hoover "more or less" aligns with Twamp but he described Hoover as "a standalone gang" that did not "associate with the alliances as much."

Carrillo was asked the significance of appellant, as a Hoover affiliate, being in the area of this shooting. Carrillo explained that a gang member would go with fellow gang members to a certain area in Fresno looking for rival gang members. They would challenge the other person and ask them if they belonged to the rival gang. The gang members would shoot the victim regardless of how he answered the challenge. Carrillo explained that this violence improved the status of both the gang and the individual gang member.

During cross-examination, Carrillo was asked whether Hoover gets along with Strother, and he answered, "The trend of gangs within Fresno sometimes, yes. It's just based on—everything comes to money." Carrillo, however, acknowledged that he had no information that Hoover was "at odds" with Twamp or Strother when this shooting occurred.

II. Relevant Facts From The Defense.

A. Appellant's trial testimony.

At trial, appellant recalled that he was arrested in this matter on June 29, 2014. He told the jury that, on the night of his arrest, he was at the residence of his cousin, Antwone Thompson. They drank a bottle of cognac together. Appellant left Thompson's residence when it was late and dark outside. He did not keep track of the time. Because he did not have a car, appellant walked. A bus was not available.

When asked to locate Thompson's residence on a map, appellant admitted that he did not know its exact location. He thought it was "just a few blocks east of San Pablo." He said he normally walked to Thompson's location after taking the bus. He claimed to have been to Thompson's residence about seven times total.

According to appellant, he was feeling tipsy on the night in question. After leaving Thompson, he walked across city streets towards his sister's house. As he walked, he saw his uncle, Valentine, driving with Hughley, who was the front passenger. Appellant flagged Valentine, who stopped. Appellant asked for a ride.

At trial, appellant denied seeing any gun or casings when he got into the car. He said he touched the top part of a seat as he got into the car. A short time later, police stopped them.

Appellant told the jury that he was not involved in this crime. He denied shooting either Mendoza or Hernandez. He said he told the arresting officers multiple times that he had been in Valentine's car for no more than 10 minutes. He explained that he told police this because the police said that they looked like suspects, and the police had wanted to know what they had been doing before being stopped.

During cross-examination, the prosecutor called into question the route that appellant reportedly took when walking from Thompson's residence towards his sister's house. The prosecutor questioned why appellant did not walk directly towards his sister's house before claiming he got into Valentine's vehicle. The prosecutor also questioned why appellant felt it was necessary to tell the officers that he had just entered Valentine's vehicle if he had no idea a crime had just occurred.

Appellant admitted that he had previously claimed an affiliation with 107 Hoover Street Crips. He admitted that he was once "jumped" by Twamps in the Fresno County jail. The Twamps had claimed that he owed them money.

B. Thompson's trial testimony.

Appellant's cousin, Thompson, told the jury that he had not seen appellant since appellant's arrest. Thompson heard about appellant's arrest through a friend, who saw it on the news. According to Thompson, appellant visited him on the same morning as appellant's arrest. They drank cognac together.

Thompson agreed that it was "a regular day" when appellant visited. He agreed he was "a little" buzzed from the alcohol. Defense counsel asked, "So is there a particular reason why you remember that day other than you heard of his arrest [sic] next day?" Thompson said, "No."

According to Thompson, appellant left around 2:40 or 2:50 a.m. Thompson, however, admitted that he did not keep track of the time. Appellant left without saying where he was going.

During cross-examination, the prosecutor asked if it was true that Thompson did not remember the exact date when he last saw appellant, who had been in custody since that time. Thompson agreed with that assertion. Over a defense objection, which the trial court overruled, the prosecutor stated, "So essentially your testimony is that the night that you hung out with [appellant] was the last night that [appellant] was out of custody?" Thompson agreed with that assertion, saying it was the last night he saw appellant. Thompson agreed that he never went to the police with information that appellant was with him.

On redirect, Thompson clarified that the last time he saw and spent time with appellant was when they drank liquor together at Thompson's apartment. Thompson confirmed that he did not know when the shooting actually occurred. He only knew that a shooting occurred and appellant was arrested.

DISCUSSION

I. The Trial Court Did Not Err In Instructing With CALCRIM No. 315.

The trial court instructed the jury with CALCRIM No. 315, which asked the jurors to decide whether the eyewitness identifications were truthful and accurate. This instruction gave the jurors a list of questions to use in order to evaluate that testimony. One such question was: "How certain was the witness when he or she made an identification?"

Appellant contends that eyewitness certainty does not indicate reliability. He cites a variety of sources, including out-of-state opinions, which conclude a witness's certainty has no correlation to the accuracy of an identification. He argues that this instruction violated his rights to due process and a fair trial. We disagree.

Our Supreme Court has already analyzed and rejected an argument that a "certainty factor" violates due process. CALJIC No. 2.92, which is similar to CALCRIM No. 315, states that a jury should consider the accuracy of an identification by considering, in part, certain factors. One such factor is "[t]he extent to which the witness is either certain or uncertain of the identification." (CALJIC No. 2.92.)

Our Supreme Court analyzed CALJIC No. 2.92 in People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 (Johnson) and People v. Wright (1988) 45 Cal.3d 1126 (Wright). Johnson and Wright specifically approved CALJIC No. 2.92, including its certainty factor. (Johnson, supra, 3 Cal.4th at pp. 1231-1232; Wright, supra, 45 Cal.3d at p. 1144.) The Supreme Court has since reiterated the propriety of including this factor. (People v. Sánchez (2016) 63 Cal.4th 411, 462 (Sánchez).)

Our Supreme Court has acknowledged that scientific literature shows a lack of correlation between the degree of confidence an eyewitness expresses in his or her identification and the accuracy of that identification. (Sánchez, supra, 63 Cal.4th at p. 462; People v. McDonald (1984) 37 Cal.3d 351, 369 (McDonald), overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) However, our Supreme Court has not struck the certainty factor from the applicable jury instructions. Instead, the Supreme Court has invited defendants to challenge any alleged unreliability of eyewitness identifications through other means, such as presenting expert testimony. (Wright, supra, 45 Cal.3d at pp. 1153-1154.) As appellant concedes, no California courts have concluded that a witness's certainty in his or her identification is an impermissible factor for a jury to evaluate.

The out-of-state authorities which appellant cites are not binding on this court. (Episcopal Church Cases (2009) 45 Cal.4th 467, 490.) In contrast, we are bound by the California Supreme Court's rulings in Sánchez, Wright, and Johnson. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In light of the Supreme Court authority, the trial court correctly instructed the jury with CALCRIM No. 315, including its "certainty factor." No due process violation occurred. Accordingly, this claim fails.

II. Carrillo Did Not Improperly Bolster The Eyewitnesses' Credibility.

Appellant contends that Carrillo improperly and prejudicially bolstered Mendoza's credibility. During his trial examination, Carrillo indicated it was common for a witness to give more information over time as things developed. The prosecutor asked him if he believed Mendoza "was able to recall more details" over time. The trial court overruled defense objections based on speculation, lack of foundation, and irrelevancy. Carrillo told the jury that he believed Mendoza "was more forthcoming" than Hernandez, who was more emotional and reluctant. Defense counsel renewed the same objections, which the trial court overruled.

Outside the presence of the jury, defense counsel objected that Carrillo's testimony vouched "for witness credibility" and he moved to strike it. After hearing argument from counsel, the trial court determined that Carrillo's testimony did not rise "to the level of vouching." The court denied the motion to strike.

On appeal, appellant contends that the trial court prejudicially erred. He argues that Carrillo opined about Mendoza's credibility and reliability.

A. Standard of review.

We review the trial court's ruling on the admissibility of expert opinion testimony for abuse of discretion. (People v. Mendoza (2000) 24 Cal.4th 130, 177.) 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. [Citations.]' [Citation.]" (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].)

B. Analysis.

1. The trial court did not abuse its discretion.

An "expert is not allowed to give an opinion on whether a witness is telling the truth because the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact. [Citations.]" (People v. Long (2005) 126 Cal.App.4th 865, 871; see also Evid. Code, § 801, subd. (a).)

Here, the trial court determined that Carrillo was not vouching for Mendoza. This record supports the trial court's determination. Carrillo was asked if he believed Mendoza was able to recall more details over time. Carrillo responded and expressed his opinion that Mendoza was more forthcoming with details than Hernandez, who was more reluctant and emotional. Carrillo was not asked, and he did not testify about, whether Mendoza was telling the truth. Carrillo did not discuss Mendoza's credibility.

Based on this record, the trial court's ruling was not arbitrary, capricious or patently absurd resulting in a manifest miscarriage of justice. As such, an abuse of discretion is not present and this claim fails. In any event, we also determine that any presumed error was harmless.

2. Any presumed error was harmless.

The harmless error test of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), is used to analyze an evidentiary error that involves state law. (People v. Partida (2005) 37 Cal.4th 428, 439.) The question is "whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (Ibid.) The erroneous admission of evidence under state law violates due process only if it makes the trial fundamentally unfair. (Ibid.)

Here, assuming the trial court abused its discretion in permitting this testimony, any presumed error was harmless. Carrillo's disputed testimony about this point was very brief. It appears very unlikely that the jury would have placed much, if any, emphasis on it. Further, the trial court instructed the jurors that they "alone must judge the credibility or believability of the witnesses." The court told them that they were not required to accept an expert's opinion as true or correct. It was up to them to decide the meaning and importance of any opinion. We presume that the jurors followed these instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295; accord People v. Boyette (2002) 29 Cal.4th 381, 436.)

Based on this record, the admission of Carrillo's testimony did not result in a fundamentally unfair trial. There is no reasonable probability this alleged error affected the jury's verdict. Accordingly, any presumed error was harmless and this claim fails.

III. This Record Does Not Establish That Appellant's Trial Counsel Rendered Ineffective Assistance.

In a series of three separate but related claims, appellant contends that his trial counsel rendered ineffective assistance. First, he argues that his counsel prejudicially failed to present an eyewitness identification expert. Second, he claims his counsel prejudicially failed to request a pinpoint instruction regarding the alleged "suggestive influences" that may have affected the eyewitness identifications. Finally, he asserts his counsel prejudicially failed to request a pinpoint instruction to limit the effect of the gang evidence.

A. Standard of review.

Under the federal and state constitutions, a criminal defendant is entitled to the assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) The constitutional right is a guarantee to effective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)

B. Analysis.

A claim of ineffective assistance of counsel is normally raised in a writ of habeas corpus. (People v. Snow (2003) 30 Cal.4th 43, 111.) In such a writ, relevant facts and circumstances can be explored which are not reflected in the record on appeal, such as why counsel did not pursue a particular trial strategy. (Ibid.) Our Supreme Court recommends for appellate counsel to join a verified petition for writ of habeas corpus when an ineffective assistance claim is raised on direct appeal and the record contains no explanation regarding defense counsel's actions. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) An appellate court should not "set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed ...." (People v. Mendoza Tello, supra, 15 Cal.4th at p. 267.)

Our Supreme Court has repeatedly stated that if the appellate record sheds no light on why defense counsel acted or failed to act in the challenged manner, an ineffective assistance claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there can be no satisfactory explanation. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266; People v. Kelly (1992) 1 Cal.4th 495, 520.) An appellate court will reverse the conviction "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)

We address appellant's claims with these principles in mind.

1. The failure to call an eyewitness identification expert.

Appellant contends that his trial counsel had no rational tactical purpose in not calling an eyewitness identification expert to testify in this trial. He relies primarily on McDonald, supra, 37 Cal.3d 351, to establish ineffective assistance. He argues an expert witness could have educated the jury regarding the scientific reasons why these identifications were unreliable. We disagree with appellant's contentions and find McDonald inapposite.

In McDonald, supra, 37 Cal.3d 351, the defendant argued that the trial court abused its discretion in excluding the testimony of an expert witness regarding the psychological factors that may affect the accuracy of eyewitness identification. (Id. at p. 361.) The McDonald court determined that error occurred because the ruling undercut the defendant's main defense, which attacked the accuracy of the eyewitness identifications. (Id. at p. 376.) McDonald, however, did not address ineffective assistance of counsel. Cases are not authority for propositions not considered or decided. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134.)

Appellant does not cite, and we have not found, any legal authorities which suggest defense counsel in a criminal case must present an eyewitness identification expert when eyewitness identification is crucial to the prosecution's case. To the contrary, the Court of Appeal has held that McDonald, supra, 37 Cal.3d 351, "provides no support for the claim that expert testimony must be presented by a defense attorney in every case where an eyewitness identification is uncorroborated." (People v. Datt (2010) 185 Cal.App.4th 942, 952.) As such, McDonald does not dictate reversal here.

Here, we cannot determine from this record why appellant's defense counsel did not call an expert witness to testify regarding the concerns surrounding the eyewitness identifications. We note that the decision "whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess. [Citation.]" (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) "Whether to call certain witnesses is also a matter of trial tactics, unless the decision results from unreasonable failure to investigate. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 334.)

Here, this record does not establish, and appellant does not contend, that defense counsel unreasonably failed to investigate. It is unknown whether defense counsel consulted with a potential expert witness. If defense counsel did consult with an expert witness, we could only guess regarding the scope and persuasiveness of that potential testimony.

Moreover, we cannot say that there can be no satisfactory explanation to justify defense counsel's failure to present expert testimony regarding eyewitness identification. Defense counsel could have believed that the jury appeared unsophisticated so that scientific testimony would have been more confusing than helpful. Counsel could have determined that focusing on the facts, and the common sense reasons why the identifications were suspect, was more effective. Counsel could have been concerned that presenting an expert witness for the defense would have triggered rebuttal evidence from the People, which could have strengthened the case against appellant. Although we can hypothesize a tactical basis for defense counsel's conduct, that does not prove that counsel had a reasonable tactical basis for his inaction. (People v. Jones (2003) 30 Cal.4th 1084, 1122.) However, appellant must prove that his trial counsel had no such reasonable tactical purpose. (Ibid.)

Defense counsel was not asked for an explanation regarding his failure to call an eyewitness identification expert. Because the record does not reveal why defense counsel elected not to present an expert witness, appellant's claim on direct appeal must fail. (See People v. Mitcham, supra, 1 Cal.4th at p. 1059 [rejecting ineffective assistance claim because record did not reveal why defense counsel failed to present a defense].) Moreover, this record does not affirmatively disclose that defense counsel had no rational tactical reason for his failure to present an expert witness. Accordingly, this claim on direct appeal fails.

2. A limiting instruction regarding the outside sources that may have influenced the eyewitness identifications.

As noted above in section I, the trial court instructed the jury with CALCRIM No. 315. This instruction lists various factors for a jury to consider in evaluating whether the eyewitnesses "gave truthful and accurate testimony."

Appellant contends his counsel prejudicially failed to request a pinpoint instruction to be included as part of CALCRIM No. 315. He asserts that a proper instruction would have directed the jury to consider whether outside sources were unduly suggestive on the eyewitnesses and, if so, require the jurors to scrutinize the identifications. This record does not support this claim.

a. This claim fails on direct appeal.

As an initial matter, we cannot determine from this record why appellant's defense counsel did not request a pinpoint jury instruction regarding the alleged "suggestive influences" behind the witnesses' identifications. Defense counsel was not asked for an explanation. Because the record does not reveal why defense counsel elected not to seek such an instruction, appellant's claim must fail. (See People v. Mitcham, supra, 1 Cal.4th at p. 1059.) Moreover, appellant has not established prejudice.

b. Appellant has failed to establish prejudice.

In raising a claim of ineffective assistance of counsel, it is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a "reasonable probability" that absent the errors the result would have been different. (People v. Williams (1997) 16 Cal.4th 153, 215; see People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Appellant has not demonstrated this requirement for this claim.

Here, during closing argument, defense counsel specifically referenced CALCRIM No. 315. Counsel argued that factors were present that could have influenced the witness's testimony. Counsel noted that Mendoza was "buzzed" from consuming three 24-ounce beers that night. Mendoza later saw the suspects on the news and learned their names. He spoke to Marcus, whom the jury did not meet. Marcus confirmed to both Mendoza and Hernandez that appellant was the shooter. Counsel questioned Marcus's reliability.

Defense counsel commented that this was a cross-racial identification, which was "another factor to consider[.]" Counsel argued that the lighting was poor from the victims' standpoint. When speaking with law enforcement, Mendoza was inconsistent regarding the number of shooters. Defense counsel argued that reasonable doubt was present because Mendoza's identification was based on unreliable sources.

CALCRIM No. 315 advised the jury to evaluate an eyewitness as it would any other witness. The jury was not instructed to disregard factors not listed in CALCRIM No. 315. "Reasonably viewed, CALCRIM No. 315 directed the jurors' attention to the listed factors, but permitted them to consider other factors." (People v. Felix (2008) 160 Cal.App.4th 849, 858-859.) Moreover, based on CALCRIM No. 226, the jury was told in pertinent part: "In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." (Italics added.)

The trial court's instructions regarding eyewitness identification and the factors to consider were thorough and complete. Appellant does not challenge the adequacy of the instructions given. Although the factors which appellant now contends were not expressly stated in the instructions, appellant was free to argue those points, and did so at length. As such, we reject appellant's position that his trial counsel's arguments "were emasculated" because the jurors were not given the requested pinpoint instruction. Contrary to appellant's assertion, nothing from this record suggests that the jury might have disregarded defense counsel's arguments because a pinpoint instruction was not given. We also disagree that defense counsel's arguments were in conflict with the trial court's instructions in general, or specifically in conflict with CALCRIM No. 315. To the contrary, defense counsel used trial evidence, coupled with CALCRIM No. 315, to argue how and why the eyewitness identifications were not reliable.

Based on the instructions given, defense counsel's cross-examinations, and the closing argument, appellant has not demonstrated a reasonable probability that the result would have been different had the defense requested a pinpoint instruction regarding the outside influences on the eyewitness identifications. As such, appellant has not met his burden of proof regarding prejudice. Accordingly, appellant cannot establish ineffective assistance of counsel and this claim fails.

3. The failure to request a limiting instruction regarding the gang evidence.

Finally, appellant argues his counsel should have sought a limiting instruction on how the jury could view the gang evidence. He suggests that his counsel should have sought an instruction pursuant to CALCRIM No. 1403 or something similar. We reject appellant's contention because this record sheds light on defense counsel's tactics.

CALCRIM No. 1403 directs a jury to consider gang evidence only for limited purposes, such as whether a defendant committed a gang-related crime or enhancement, or whether the defendant had a motive to commit the crimes charged. The instruction cautions a jury not to conclude from the gang evidence that the defendant is a person of bad character or has a disposition to commit crime.

Based on closing arguments, it is clear that the defense sought to minimize the relevancy of the gang evidence. Defense counsel argued that no evidence established that appellant was an active gang member or that he had a gang motive to commit this crime. To the contrary, defense counsel emphasized that this was a case about misidentification and the identifications were "tainted" by "unreliable sources."

Defense counsel could have reasonably determined that a limiting instruction regarding gangs would have done more harm than good. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1053 [a reasonable attorney may tactically conclude that the risk of a limiting instruction outweighs the questionable benefits it would provide].) Indeed, a limiting instruction could have invited the jury to consider the gang evidence as possibly establishing a motive for appellant to shoot Hernandez and Mendoza, an outcome which defense counsel sought to avoid.

Appellant has not met his burden of showing that his counsel's performance fell below an objective standard of reasonable competence in failing to request a limiting instruction. Accordingly, ineffective assistance of counsel is not present and this claim fails.

IV. The Trial Court Did Not Abuse Its Discretion Regarding The Admission Of Gang Evidence And Any Presumed Error Was Harmless.

In a series of arguments, appellant challenges the trial court's rulings permitting the introduction of gang evidence at trial. He correctly notes that the prosecution did not allege that this crime was committed to benefit a criminal street gang or that appellant was participating in criminal gang activity. (See § 186.22, subds. (a) & (b).) He asserts the gang evidence prejudicially violated his rights to due process and a fair trial.

A. Background.

Prior to trial, a hearing occurred pursuant to Evidence Code section 402 (the section 402 Hearing) regarding appellant's gang admission during a booking interview. At the section 402 Hearing, the booking officer testified that he interviewed appellant during a July 2, 2014, booking. According to the booking officer, appellant denied being a gang member, but he admitted affiliation with both the Strother gang and the 107 Hoover Crips.⁷

7 This booking officer, Kong Yang, did not testify at trial.

The prosecutor argued that appellant's admitted gang affiliation was relevant to establish a motive for this shooting. The prosecutor informed the court that he intended to call a gang detective at trial to discuss the location where this crime occurred, which gang (Strother) operated in that neighborhood, and "maybe a few sentences" about Strother. Appellant objected to the introduction of his gang affiliation at trial. Defense counsel generally argued that any gang evidence would inflame the jury.

The trial court determined that the proposed evidence relating to gangs was relevant and not unduly prejudicial. The trial court ruled that appellant's booking admission regarding his gang affiliation was admissible at trial.

B. Standard of review.

We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933.) Likewise, we review the trial court's ruling on the admissibility of expert opinion testimony for an abuse of discretion. (People v. Mendoza, supra, 24 Cal.4th at p. 177.) We will not disturb the rulings unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)

C. Analysis.

Appellant raises three concerns regarding the gang evidence. First, he contends that the trial court abused its discretion in permitting the introduction of gang evidence at trial, and he suggests that the prosecutor used a false theory of relevancy during the pretrial hearing. Second, he asserts that the trial court abused its discretion in permitting Carrillo to discuss a possible gang motive for this crime. Finally, he alleges that the prosecutor misstated Carrillo's testimony during closing arguments, resulting in a fundamentally unfair trial. We address, and reject, each of these concerns. Moreover, we find any presumed error harmless.

1. No abuse of discretion occurred regarding the gang evidence.

In general, the prosecution is entitled to introduce evidence of gang affiliation and activity when such evidence is relevant to prove some fact other than the defendant's disposition to commit the charged crimes. (People v. Valdez (2012) 55 Cal.4th 82, 131; accord People v. McKinnon (2011) 52 Cal.4th 610, 655.) Gang evidence is admissible to prove motive or identity as long as the prejudicial effect does not outweigh its probative value. (People v. Williams, supra, 16 Cal.4th at p. 193.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)

Our Supreme Court has cautioned that trial courts should "carefully scrutinize" gang evidence, even where gang membership is relevant, because it may have a highly inflammatory impact on the jury. (People v. Williams, supra, 16 Cal.4th at p. 193.) On the other hand, wide latitude is permitted in admitting evidence of motive because a motive is ordinarily the incentive for criminal behavior. (People v. McKinnon, supra, 52 Cal.4th at p. 655.)

Here, this was a gang-related case. The Strother criminal street gang maintains a presence in the area around this shooting. It is undisputed that appellant was an admitted affiliate of the 107 Hoover Street Crips. The suspects made clear gang references prior to firing. They asked Mendoza several times where he was from. They asked Mendoza if he was from Strother or Eden. Appellant specifically asked if Mendoza was a Strother gang member, which Mendoza denied.

Carrillo's testimony regarding gangs was relevant. Carrillo assisted the jury in understanding the meaning and context of the gang references that the suspects uttered before opening fire. (Evid. Code, § 801, subd. (a) [expert may testify on a subject sufficiently beyond the jurors' common experience that would assist them].) Appellant's gang affiliation, coupled with his comments during this crime, suggested a possible motive for this shooting.

We reject appellant's suggestion that the prosecutor used a false theory of relevancy during the pretrial hearing.⁸ The prosecutor argued, in part, that appellant's admitted gang affiliation established a motive for this shooting. The prosecutor indicated his intent to introduce some evidence about the Strother gang and the area where this crime occurred. Nothing about the prosecutor's statements was false or misleading.

8 In raising this claim, appellant notes that the trial evidence differed from the section 402 Hearing. At trial, Carrillo testified that appellant was only affiliated with the Hoover street gang. According to Carrillo, appellant had denied affiliation with Strother during the booking interview. In contrast, during the section 402 Hearing, the booking officer testified that appellant had claimed affiliation both with Strother and the 107 Hoover Crips.

Moreover, we reject appellant's argument that propensity evidence was used as an improper theory of guilt at trial. Appellant's identity as the shooter was established through the direct testimony of Hernandez and Mendoza. Other evidence corroborated their identifications. Appellant was in the shooters' vehicle shortly after this crime with a particle on his hand "consistent" with gunshot residue.

Finally, this record does not establish that the prejudicial effect of the gang evidence was outweighed by its probative value. Carrillo's testimony did not involve an undue consumption of time. This evidence did not tend to create a substantial danger of undue prejudice. This testimony did not have a probability to confuse the issues or mislead the jury.

In ruling that the gang evidence was admissible, the trial court did not exercise its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. An abuse of discretion is not present. As such, this claim fails.

2. No abuse of discretion occurred regarding the motive testimony.

At trial, the prosecutor asked Carrillo the significance of appellant, as a Hoover affiliate, being in the area of this shooting that night. Carrillo described a recent trend of gang members going into rival gang territory with other gang members to confront and shoot people. Over a defense objection, which was overruled, Carrillo explained the benefits, both to the shooter and to the gang, when a gang member goes into rival territory to commit violence.

Appellant asserts that the form of the prosecutor's question was improper, as it was not a hypothetical. He also contends that Carrillo's opinion testimony was speculative and it improperly expressed appellant's intent. He maintains that reversal is required, claiming the prosecutor relied heavily on this evidence to persuade the jury. We disagree.

a. Appellant failed to preserve this issue for appeal.

As an initial matter, appellant failed to raise an objection in the trial court when the prosecutor asked Carrillo the significance of appellant, as a Hoover affiliate, being in the area of this shooting that night. Appellant's failure to object forfeited that issue for appellate review. (People v. Gutierrez (2009) 45 Cal.4th 789, 819.) We reject appellant's suggestion that his previous objection, raised for a different issue, preserved this claim. In any event, we also reject this claim on its merits.

b. The trial court did not abuse its discretion.

Our Supreme Court has held that an expert may testify about the culture and habits of criminal street gangs. (People v. Vang (2011) 52 Cal.4th 1038, 1044; accord People v. Gonzalez (2006) 38 Cal.4th 932, 944.) An expert may discuss gang sociology and psychology, including the expectations of gang members when confronted with specific action. (People v. Hill (2011) 191 Cal.App.4th 1104, 1120; accord People v. Olguin (1994) 31 Cal.App.4th 1355, 1370-1371.) An expert may testify regarding a defendant's membership in a gang; a street gang's existence, composition, culture, habits, and activities; gang rivalries; whether a crime was committed to benefit or promote a gang; and how the crime was committed. (People v. Hill, supra, 191 Cal.App.4th at p. 1120.) An expert may testify regarding a defendant's motivations for his actions. (People v. Ward (2005) 36 Cal.4th 186, 209; accord People v. Hill, supra, 191 Cal.App.4th at p. 1120.)

Generally, an expert may render opinion testimony based on hypothetical questions that ask the expert to assume that certain facts are true. (People v. Vang, supra, 52 Cal.4th at p. 1045.) An expert, however, may not give an opinion based on assumptions of fact without evidentiary support, and opinion testimony may not be based on speculative or conjectural factors. (Id. at p. 1046.) Likewise, an expert is not permitted to testify about a defendant's subjective knowledge and intent. (People v. Killebrew (2002) 103 Cal.App.4th 644, 658.) Although an expert may respond to a question that coincides with the ultimate issue in the case (see Evid. Code, § 805; accord People v. Valdez (1997) 58 Cal.App.4th 494, 507), a witness may not express an opinion regarding the defendant's guilt. (People v. Vang, supra, 52 Cal.4th at p. 1048.) An opinion regarding guilt or innocence does not assist the jurors, who must weigh the evidence and draw their own conclusions. (Ibid.)

Here, we disagree with appellant that Carrillo's testimony addressed the ultimate mental states, and other ultimate fact/guilt issues, which were reserved for the trier of fact. To the contrary, Carrillo explained to the jury the significance of appellant's presence in this area on the night of the shooting. Carrillo responded in a neutral manner and spoke generally about a possible motive for this otherwise senseless act of violence. The average juror would likely not understand the implications of a particular gang affiliate being in another gang's territory or how such violent activity could be seen as beneficial. Although Carrillo suggested a motive for appellant's actions, this testimony was not tantamount to expressing an opinion about guilt.

Finally, Carrillo's testimony was not speculative or based on an assumption of facts not in evidence. The trial evidence established that the suspects all made gang references prior to shooting the victims. Appellant was an admitted gang affiliate. This shooting occurred in another gang's territory, Strother, and appellant asked Mendoza if he was a Strother gang member before firing.

Based on this record, the trial court's ruling was neither arbitrary, capricious, nor patently absurd. Accordingly, an abuse of discretion does not appear and this claim fails.

3. The prosecutor did not misstate Carrillo's testimony.

In claiming that a fundamentally unfair trial occurred, appellant alleges that the prosecutor misstated Carrillo's testimony during closing argument. We reject this claim. The relevant comments were as follows:

"Now, Detective Carrillo told you that in Fresno there are two major categories of Black gangs. On the one hand you have Mugs. On the other hand, Twamps. Strother is under the Twamp alliance. The Defendant's gang is a stand-alone gang. And [Carrillo] told you sometimes they feud with the other gangs, sometimes they're aligned with the other gangs, it just depends on the situation." (Emphasis added.)

As an initial matter, appellant failed to object to the prosecutor's argument in the trial court, resulting in a forfeiture of any claim of prosecutorial misconduct on appeal. (People v. Virgil (2011) 51 Cal.4th 1210, 1260.) In any event, this claim also fails on its merits.

A prosecutor commits prosecutorial misconduct when he or she misstates evidence during closing arguments. (People v. Davis (2005) 36 Cal.4th 510, 550.) However, a prosecutor has wide-ranging latitude to discuss the case in closing argument. (People v. Panah (2005) 35 Cal.4th 395, 463.) A prosecutor is permitted to fully state his views regarding what the evidence establishes and to urge whatever conclusions he deems proper. (Ibid.)

Here, Carrillo's testimony implied that the gangs could have disagreements. During trial cross-examination, Carrillo was asked whether Hoover gets along with Strother. He said "sometimes" and noted "everything comes to money."

This record does not demonstrate that the prosecutor misstated the evidence. To the contrary, the prosecutor permissibly stated his views regarding the evidence. These comments do not establish a fundamentally unfair trial.

4. Any presumed error was harmless regarding the admission of the gang evidence.

We use the Watson standard to evaluate an evidentiary error that involves state law. (People v. Partida, supra, 37 Cal.4th at p. 439.) The question is "whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error." (Ibid.) The erroneous admission of evidence under state law violates due process only if it makes the trial fundamentally unfair. (Ibid.)

Here, the amount of gang evidence introduced in this trial was extremely small in comparison to the entire trial record. Carrillo's gang testimony on direct examination covered a mere seven pages in the record. His testimony on cross-examination regarding gangs covered a mere four pages. During rebuttal questioning, Carrillo discussed gang evidence in an additional nine pages, most of which dealt with the difference between a gang associate and a gang member, how the jail determined gang membership for housing, and why somebody might claim gang affiliation when being booked into jail.

Although the gang evidence was used to suggest a motive for this shooting, the gang evidence was neither emphasized nor crucial to identifying appellant. To the contrary, both Hernandez and Mendoza unequivocally identified appellant as their shooter. Appellant concedes that his defense counsel vigorously cross-examined these witnesses. He also concedes that his counsel gave a vigorous closing argument that attempted to highlight the factors affecting an alleged false identification.

The trial identifications were corroborated to some degree by other evidence. Appellant was a passenger in the vehicle that was involved in this crime, and police took him into custody shortly after this shooting. Appellant had a particle "consistent" with gunshot residue on his non-dominant hand. Further, appellant's alibi was not overwhelmingly strong. The prosecutor raised some doubt regarding the credibility and timing of appellant's whereabouts prior to this shooting.

During closing arguments, the prosecutor emphasized the certainty of the eyewitness identifications. The prosecutor noted the corroborating evidence, which he contended bolstered the eyewitness identifications. The prosecutor discredited appellant's alibi.

Finally, the trial court instructed the jury that the prosecution was not required to prove that appellant had a motive to commit any of the charged crimes. In reaching their verdict, the jurors were entitled to consider whether appellant had a motive, which "may be a factor tending to show that [appellant] is guilty. Not having a motive may be a factor tending to show [appellant] is not guilty."

Based on this record, the admission of the gang evidence did not result in a fundamentally unfair trial. As such, a due process violation did not occur even if we presume it was error to admit this evidence. Further, it is not reasonably probable the verdict would have been more favorable to appellant absent the admission of the gang evidence. Accordingly, prejudice is not present and appellant's challenges fail. V. The Trial Court Properly Allowed Testimony Regarding Witness Intimidation, Fear And Retaliation.

During Carrillo's trial testimony, he explained that victims of gang-related crimes are often reluctant to cooperate with law enforcement from fear of retaliation, and he had seen victims report misleading information. In his experience, witnesses feared for their own safety and for the safety of family members. He had seen family members targeted because a witness testified in court. Carrillo briefly discussed the concept of a "snitch." Following overruled defense objections, he testified that snitches become targets for gang violence. Carrillo agreed with the prosecutor that Mendoza was a target for gang activity by coming forward to authorities.

Appellant argues there was no evidentiary foundation to permit Carrillo's explanations regarding snitches, gang retaliation, or that Mendoza was a target for gang activity. He contends there "was not one shred of evidence" that anyone tried to intimidate either Mendoza or Hernandez, or that they feared retaliation. He asserts that the trial court abused its discretion in permitting this testimony. We disagree.

As an initial matter, although appellant objected to whether Mendoza was a target for gang activity, he failed to raise an objection in the lower court regarding Carrillo's testimony that victims of gang violence are reluctant to cooperate with police. Appellant also failed to object when Carrillo agreed that victims give misleading information to law enforcement for fear of retaliation. Because appellant failed to object in the lower court, these claims are forfeited on appeal. (People v. Gutierrez, supra, 45 Cal.4th at p. 819.) In any event, we also reject appellant's claims on the merits.

A jury may consider any matter that has any tendency in reason to prove or disprove the truthfulness of a witness's testimony. (Evid. Code, § 780.) Such matters include "[t]he existence or nonexistence of a bias, interest, or other motive." (Id. at subd. (f).) "[E]vidence that a witness is afraid to testify is relevant to the credibility of that witness and therefore admissible. [Citation.]" (People v. Warren (1988) 45 Cal.3d 471, 481.)

An expert may properly opine whether members of a criminal street gang would intimidate witnesses who testify in court. (People v. Gonzalez, supra, 38 Cal.4th at p. 945.) "'Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her credibility and is well within the discretion of the trial court. [Citations.]' [Citations.] Evidence of possible intimidation would help explain why the witnesses might repudiate earlier truthful statements." (Id. at p. 946.)

Here, despite appellant's claims to the contrary, there was evidence that Mendoza feared gang retaliation for cooperating with the prosecution. During Mendoza's trial testimony, he told the prosecutor that he was worried because "they" could come any day. Mendoza stated he was worried that, if he "put [appellant] away, someone else is going to want revenge. Because the other two, you know, they're going to get locked up, too." Later, Mendoza agreed that he was concerned about retaliation while he and Hernandez were still in the hospital. On cross-examination, Mendoza clarified that nobody had threatened him but he felt afraid that it might happen. He claimed to have seen cars in his neighborhood that did not belong there.

This record establishes an evidentiary foundation for the prosecutor to ask Carrillo about gang retaliation and its general effect on Mendoza's testimony. This evidence was relevant as it pertained to Mendoza's credibility. It was not necessary to show that appellant personally made threats against Mendoza, or that Mendoza's stated fear of retaliation was directly linked to appellant. (People v. Olguin, supra, 31 Cal.App.4th at p. 1368.)

The trial court's decision to permit this testimony was neither arbitrary, capricious, nor patently absurd. Accordingly, an abuse of discretion does not appear on this record and this claim fails.

VI. Due Process Was Not Violated Regarding The Alibi Evidence.

Appellant contends that the trial court abused its discretion in allowing the prosecutor to question him at trial regarding the timeline of his jail booking. He further argues that the prosecutor committed misconduct by misstating the alibi evidence both during Thompson's cross-examination and during closing argument. He claims the "cumulative effect unfairly obliterated [his] alibi" and violated his rights to due process and a fair trial.

A. Standard of review.

We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver, supra, 26 Cal.4th at p. 933.) We will not reverse a trial court's ruling unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)

B. Analysis.

We address appellant's two issues in order.

1. The claim regarding cross-examination of appellant about his jail booking.

During appellant's cross-examination at trial, he agreed that he was arrested on the night of this shooting, booked, and released that same day. Several days later, on July 2, 2014, he came to court and was remanded into custody. He remained in custody from that time until his trial in this matter.

Appellant argues that these questions were not relevant to anything elicited during his direct testimony, and it did not impeach his credibility as a witness. He claims this evidence was more prejudicial than probative. We disagree.

"Although a defendant cannot be compelled to be a witness against himself, if he takes the stand and makes a general denial of the crime with which he is charged, the permissible scope of cross-examination is 'very wide.' [Citation.]" (People v. Cooper (1991) 53 Cal.3d 771, 822.) The district attorney may inquire into the facts and circumstances surrounding the defendant's assertions. (People v. Chatman (2006) 38 Cal.4th 344, 382; accord People v. Cooper, supra, 53 Cal.3d at p. 822.) The district attorney may also introduce evidence through cross-examination that explains or refutes the defendant's statements or the inferences necessarily drawn from them. A defendant cannot testify contrary to and inconsistent with the prosecution's evidence and limit the scope of cross-examination to the precise facts of his direct examination. (People v. Chatman, supra, 38 Cal.4th at p. 382; accord People v. Cooper, supra, 53 Cal.3d at p. 822.)

Our Supreme Court has noted that a defendant is a percipient witness to the events at issue, and he or she has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. (People v. Chatman, supra, 38 Cal.4th at p. 382.) "It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination. [Citation.]" (People v. Farnam (2002) 28 Cal.4th 107, 187.) However, despite the wide latitude afforded on cross-examination, a prosecutor may not ask questions that suggest facts harmful to a defendant without a good faith belief that those facts exist and can be proven. (People v. Bolden (2002) 29 Cal.4th 515, 562; accord People v. Mooc (2001) 26 Cal.4th 1216, 1233.)

Here, on direct examination, appellant offered an alibi, claiming he visited Thompson's residence on the night of this shooting. He claimed that he left Thompson's residence rather late, and he encountered his uncle, Valentine, who offered him a ride. He claimed that he did not shoot Hernandez or Mendoza, and he was in Valentine's vehicle for about 10 minutes before police stopped them.

By testifying, appellant put his own veracity at issue, and the veracity of his alibi. The prosecutor was not limited to cross-examination based solely on the precise facts that formed the basis of appellant's testimony. To the contrary, the prosecutor was entitled to question appellant on anything relevant to the alibi. The prosecutor's questions established a timeline of when appellant was in and out of custody following this shooting. This testimony established facts that, when coupled with Thompson's testimony, called into question whether appellant drank with Thompson on the night of this shooting or several days later. This evidence was material regarding appellant's guilt. As such, we reject appellant's contention that the prosecutor's questions were irrelevant.

Moreover, we reject appellant's argument that the prosecutor made no attempt to prove that appellant drank with Thompson on July 2, 2014, as opposed to the night of this shooting. To the contrary, during Thompson's cross-examination, Thompson agreed that he "hung out" with appellant on the last night that appellant was out of custody. On redirect examination, Thompson confirmed that he did not know when this shooting took place. Based on Thompson's testimony, a reasonable jury could have determined that appellant visited Thompson on a different night than when this shooting occurred. Evidence supported the prosecutor's closing argument.

Finally, the prosecutor's questions did not involve an undue consumption of time. These questions did not tend to evoke an emotional bias against appellant. These questions did not have a substantial probability to confuse the issues or mislead the jury. As such, we reject appellant's claim that prejudice substantially outweighed the probative value of the prosecutor's cross-examination.

Based on this record, the trial court did not exercise its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. An abuse of discretion is not present. Accordingly, this claim fails.

2. The claim of prosecutorial misconduct.

During his final rebuttal arguments, the prosecutor contended that Thompson did not know the exact date when he last saw appellant. He stated the following:

"[Thompson] just remembers that he hung out with [appellant] on the last night [appellant] was out of custody. That was his testimony. Because he said the day after, the day after he was in jail ever since up until today. And we heard testimony from [appellant] himself that on the night of the 29th he was booked into jail and released. He was out for a couple days. He came back several days later, July 2nd, I believe. And on July 2nd that was the last night he was out as a free man. And [Thompson] said that was the night that he hung out with him. And that's how he remembers what they did that day."

The trial court overruled defense counsel's objection that this argument misstated the evidence.

Appellant contends that the prosecutor committed misconduct because he "misstated and contorted" Thompson's testimony during his cross-examination. He further argues that misconduct occurred during closing arguments because the prosecutor misstated the alibi evidence. These contentions are unpersuasive.

As an initial matter, the parties dispute whether appellant has preserved this claim for appellate review. We decline to resolve this dispute. Even when we presume that no forfeiture occurred, we reject this claim on its merits.

A prosecutor commits prosecutorial misconduct when he or she misstates evidence during closing arguments. (People v. Davis, supra, 36 Cal.4th at p. 550.) However, a prosecutor has wide-ranging latitude to discuss the case in closing argument. (People v. Panah, supra, 35 Cal.4th at p. 463.) A prosecutor is permitted to fully state his views regarding what the evidence establishes and to urge whatever conclusions he deems proper. (Ibid.)

Here, the prosecutor was entitled to cross-examine Thompson regarding his memory of events, and to question whether it was possible that event occurred on a different night. The prosecution's questions to Thompson were appropriate. (See Evid. Code, § 773, subd. (a) [a witness may be cross-examined upon any matter within the scope of the direct examination].) Moreover, the prosecutor had latitude to discuss the case in closing argument. It was permissible for the prosecutor to state his views regarding what the evidence established and to urge whatever conclusions he deemed proper.

Nothing in this record establishes that the prosecutor misstated Thompson's testimony, either during the cross-examination or in closing arguments. Prosecutorial misconduct is not present. Accordingly, this claim is without merit.

VII. Error Did Not Occur Regarding The Readback Of Testimony.

During deliberations, the jurors requested a readback of certain testimony. Appellant claims the trial court erred both in its jury instructions regarding a readback of testimony and how it responded to the jury's request for readback.

A. Background.

With CALCRIM No. 202, the trial court advised the jurors that they could request a readback of all or part of any witness's testimony if they so desired. The court, however, asked the jurors to make any request "as specific as possible." The court noted it would be helpful if the jurors could "state the name of the witness and the subject of the testimony that you would like to have read." CALCRIM No. 202 does not include this language.

During deliberations, the jury submitted a written request for readback of Thompson's and appellant's testimonies, "specifically for date & time of visit, & time they started drinking, if mentioned." The trial court met with the parties regarding this request, and the court indicated that the court reporter was locating the requested testimony. Defense counsel asked the court for an order directing a readback of Thompson's entire trial testimony, which was relatively short.⁹ Defense counsel argued that Thompson never mentioned a date during direct examination, but during cross-examination, Thompson testified that he knew appellant had been arrested on the night they drank together because he had heard about appellant's arrest the next day. Defense counsel argued that the jury needed to hear Thompson's entire testimony for context because the prosecutor was contending that Thompson actually drank with appellant on July 2, 2014, and not on the night of this shooting.

9 Thompson's entire trial testimony covers 10 pages in the record.

The trial court noted that the jury "asked specifically for date and time of visit and the time they started drinking, if mentioned." The court denied the defense request for an expanded readback, but noted that the jury could request further readback.

B. Analysis.

Appellant raises two issues in this claim. First, he asserts that the trial court erred in instructing the jury that readback of testimony required a request to be "as specific as possible." Second, he contends that the court erred in denying appellant's request for an expanded readback of Thompson's testimony. We address each issue in turn.

1. The trial court did not err in asking the jury to be as specific as possible.

Appellant argues that, because of the trial court's direction to be as specific as possible, "the jury unwittingly did not request what was actually sought." He asserts that a readback of Thompson's entire testimony would have provided the jury with the information it actually wanted. He maintains the jury was confused because the prosecutor misstated the evidence in closing argument.

As an initial matter, we agree with appellant that this claim is properly before us despite defense counsel's failure to object below to the modified language appearing in CALCRIM No. 202. Even without an objection, a defendant may appeal a jury instruction that affects substantial rights. (People v. Hillhouse (2002) 27 Cal.4th 469, 505-506.) "Although the readback of testimony is primarily for the jury's benefit, it also implicates the defendant's (and prosecution's) rights. [Citation.]" (Id. at p. 506.) As such, we will review the merits of this claim. However, we find appellant's contentions unpersuasive.

Instructional errors are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570; People v. Jandres (2014) 226 Cal.App.4th 340, 358.) We must ascertain the relevant law and determine whether the given instruction correctly stated it. (People v. Kelly, supra, 1 Cal.4th at pp. 525-526.) We must determine if it is reasonably likely the jurors understood the instruction as appellant suggests on appeal. (People v. Nem (2003) 114 Cal.App.4th 160, 165.)

The Penal Code provides for the readback of trial testimony: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." (§ 1138.)

Here, the trial court's instruction simply elaborated on the fact that, to the extent the jury wanted a particular portion of testimony read, it should make its request with specificity. The court made it clear that the jury could hear all or some of any witness's testimony if it so desired. The trial court's instruction did not misstate the law or misdirect the jury. It is not reasonably likely the jurors failed to understand their right to request a readback of testimony as they required. Based on this record, there is no reasonable likelihood that the jury applied the challenged instruction in an inappropriate manner. As such, we decline to find instructional error.

2. The trial court did not err regarding the readback of Thompson's testimony.

Appellant next contends that the trial court erred in failing to direct the complete readback of Thompson's brief trial testimony. He asserts that this missing evidence failed to put the alibi defense into context. We find no error.

A trial court must allow the rereading of relevant testimony as requested by the jury. (People v. Cox (2003) 30 Cal.4th 916, 968, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) A trial court may provide more information than the jury requests in order to provide context. (People v. Cox, supra, 30 Cal.4th at p. 968.) However, a trial judge does not have to order readback of testimony that the jury did not request. (People v. Gordon (1963) 222 Cal.App.2d 687, 689.)

Here, we reject appellant's contentions as speculative regarding what the jury actually wanted to hear. The trial court told the jury on two separate occasions that it could request readback of testimony. The court instructed the jurors that they were free to request "all or part of the testimony of any witness read back to you." The trial court provided a readback of testimony that directly complied with the jury's request. After receiving this readback, the jury could have requested additional testimony if it so desired. It is clear, however, that the jury was satisfied with the readback it received.

Based on this record, the trial court complied with the mandates of section 1138. Accordingly, error is not present and this claim fails.

VIII. There Was No Cumulative Error.

Interspersed throughout his briefs, appellant contends that the cumulative effect of each alleged error discussed above deprived him of due process and a fair trial. We reject this contention because each alleged error did not prejudice appellant either individually or in conjunction with others. (People v. Williams (2013) 56 Cal.4th 165, 201.) Appellant "was entitled to a fair trial but not a perfect one." (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Accordingly, any claim of cumulative error fails.

IX. Appellant Must Be Resentenced In Counts 1 And 2.

The crime of attempted premeditated murder brings a prison sentence of life with the possibility of parole. (§ 664, subd. (a).) The minimum parole eligibility for a life term is seven calendar years where a minimum term is not specified. (§ 3046, subd. (a)(1).) In contrast, a defendant convicted of a gang-related felony punishable by an indeterminate sentence is not eligible for parole before serving at least 15 years in prison. (§ 186.22, subd. (b)(5).)

Here, at sentencing, the trial court imposed indeterminate sentences of 15 years to life on counts 1 and 2, plus an additional and consecutive term of 25 years to life for the firearm enhancement as to counts 1 and 2. Via supplemental briefing, the parties agree, as do we, that the sentences for the attempted premeditated murders were unauthorized because they did not comply with section 664, subdivision (a).¹⁰ Appellant must be resentenced.

10 To the extent the sentencing court may have relied upon section 186.22, subdivision (b)(5), in imposing appellant's sentences, we agree with the parties that there were no allegations or findings that appellant's convictions in counts 1 and 2 were gang related.

We decline respondent's suggestion that we should modify the judgment without remand. Under these circumstances, and in light of the recent amendment to section 12022.53, which we discuss below, remand is appropriate. (See § 1260 [an appellate court may remand the cause to the trial court for further proceedings as may be just under the circumstances].) Accordingly, we remand this matter for resentencing on counts 1 and 2. The trial court shall impose sentences in conformity with sections 664 and 187, subdivision (a).

X. Upon Remand The Trial Court Shall Exercise Its Discretion Regarding The Firearm Enhancements.

At the time of appellant's sentencing in this matter, section 12022.53 imposed a mandatory additional and consecutive prison sentence of 25 years to life when a defendant personally and intentionally discharged a firearm and caused great bodily injury during the commission of certain enumerated felonies. (Former § 12022.53, subd. (d).) On October 11, 2017, the Governor approved Senate Bill No. 620, which amended sections 12022.5 and 12022.53. Under the amendments, a trial court now has discretion to strike or dismiss a firearm enhancement otherwise required to be imposed at the time of sentencing pursuant to these sections. (§§ 12022.5, subd. (c); 12022.53, subd. (h).)

Via supplemental briefing, the parties agree, as do we, that this amendment applies retroactively to appellant because his case is not yet final. The Supreme Court has held that where an amended statute mitigates punishment and there is no saving clause, the amendment operates retroactively so that the lighter punishment is imposed. (In re Pedro T. (1994) 8 Cal.4th 1041, 1053-1054.) Courts are to presume that a legislative act mitigating punishment for a particular criminal offense is intended to apply to all nonfinal judgments. (People v. Brown (2012) 54 Cal.4th 314, 324.)

Although respondent agrees that this amendment applies here, respondent asserts that remand is unnecessary because no reasonable court would exercise its discretion to strike appellant's firearm enhancements. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court to consider retroactive discretionary authority].) To support its position, respondent focuses on the trial court's following comments at sentencing:

"The scenario [appellant] presented places him in the car after the shooting. In the Court's opinion, from the evidence, the true and correct scenario places him in the car after, repeat after, leaving his cousin's and then the shooting taking place.

"Nonetheless, the jury was the trier of fact. Unanimously placing [appellant] in the vehicle at the time of the shooting.

"And, of course, what stands out so loud and clear is the gunshot residue on his hand, at a location on the hand which makes [appellant's] account for its presence untenable as argued and demonstrated by the District Attorney in his closing argument.

"At any rate, as previously stated, the jury was the trier of fact. And there was clearly, repeat clearly, sufficient evidence to support the verdicts and special allegations."

Later, when discussing factors in aggravation versus mitigation, the court noted that the factors in aggravation "clearly preponderate." Violence and great bodily injury occurred in this matter, and appellant had a propensity to possess firearms and threaten others. "[Appellant] has engaged in violent conduct in the past and continues to do so, posing a serious danger to society." The court found no factors in mitigation, noting that appellant had not shown any remorse for his violent conduct.

Although the trial court's comments at sentencing suggest it will not strike or dismiss the firearm enhancements otherwise required to be imposed, we decline to make any such presumptions. The amendments to sections 12022.5 and 12022.53 represent a substantial change in the sentencing law vis-à-vis firearm enhancements. In light of the legislative change and the clear intent for sentencing courts to exercise this discretion, we remand this issue in the interests of justice.¹¹ (See § 1260 [an appellate court may remand the cause to the trial court for further proceedings as may be just under the circumstances].)

11 We take no position regarding how the trial court should exercise its discretion. --------

DISPOSITION

The sentences on counts 1 and 2 are vacated. The matter is remanded to the trial court for resentencing on these counts in conformity with sections 664 and 187, subdivision (a). The court shall also exercise its discretion pursuant to section 12022.53, subdivision (h), and determine whether it should strike or dismiss the firearm enhancements otherwise required to be imposed pursuant to section 12022.53, subdivision (d). Following resentencing, the court shall forward an amended abstract of judgment to the appropriate authorities. In all other respects, the judgment is affirmed.

/s/_________

LEVY, Acting P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
DETJEN, J.