People v. Crawley CA3 ( 2021 )

Filed 12/17/21 P. v. Crawley CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C091085
Plaintiff and Respondent, (Super. Ct. No. 17FE018733)
v.
COREY CRAWLEY,
Defendant and Appellant.
A jury found defendant Corey Crawley guilty of second degree murder and being
a felon in possession of a firearm, and found true allegations that he personally and
intentionally discharged a firearm causing death. The trial court sentenced defendant to
43 years to life in state prison and imposed various fees and fines. Defendant appeals,
arguing (1) the trial court erred in denying his Batson/Wheeler1 motion, (2) the
1Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d
258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 173.
1
prosecutor engaged in misconduct in rebuttal closing argument, (3) remand is necessary
to allow the trial court to exercise its discretion to strike the firearm enhancement for
personal use and discharge of a firearm causing death and impose a lesser firearm
enhancement in its place, and (4) the trial court erred in imposing various fines and fees
without determining his ability to pay. We reject these contentions and affirm the
judgment.
I. BACKGROUND
A. The Shooting
Defendant and an associate, E.V., spent much of their time at an apartment
complex in Sacramento, which was known as a gathering place for “Trigga Mob” gang
members. Neither defendant nor E.V. lived in the apartment complex. Nevertheless,
they acted as self-appointed guardians of the complex, joining gang members in
approaching unfamiliar cars and demanding to know who the occupants were and why
they were there. Defendant was often seen running up to cars pulling into the apartment
complex parking area with a silver revolver in his hand.
Defendant argued with a man named “E.” on October 7, 2017. The argument
escalated, and defendant reached for a shiny silver-gray gun in the waistband of his pants.
Bystanders intervened and the men calmed down, bringing the conflict to an end. The
peace, however, was short-lived.
D.R., a resident of the apartment complex, returned home in the early morning
hours of October 8, 2017, after an evening out. He ran into defendant and E.V., who
invited him to play dice. D.R. agreed, and the three men played dice in the courtyard
area. Defendant lost a couple of dollars. He then got up and walked away through the
gates of the apartment complex. D.R. and E.V. continued to shoot dice. A couple
minutes later, D.R. heard six or seven shots. Defendant then came running back into the
apartment complex towards D.R. and E.V., tucking a silver revolver into his pants as he
ran. Defendant said to E.V., “come on, let’s go.” E.V. said, “what did you do?”
2
Defendant repeated, “come on, let’s go.” Defendant and E.V. then left the apartment
complex.
D.R. went to his apartment. He then went back outside and through the gates of
the apartment complex to the street. D.R. saw a gray car with the doors open and interior
light on. There were several bullet holes in the car.
B. The Investigation and Arrest
Sacramento County sheriff’s deputies responded to a report of shots fired near the
apartment complex. They found a Chevy Malibu with bullet holes in the driver’s side
door and window. They also found paperwork indicating the car had been rented by J.R.,
a resident of the apartment complex. J.R.’s body was found several hours later,
approximately 100 yards from the car. An autopsy would reveal that J.R. had been shot
three times. One of the bullets passed through J.R.’s stomach and other organs,
ultimately causing death.
Defendant and E.V. fled the apartment complex by car, accompanied by
defendant’s girlfriend. They were apprehended the next day. Sheriff’s deputies found a
gun in defendant’s girlfriend’s purse. A criminalist would later compare bullets
recovered from J.R.’s rental car and body to the gun found in defendant’s girlfriend’s
purse. The criminalist determined that one of the bullets was fired from the gun; the
other bullets were too damaged to be meaningfully evaluated.
C. The Charges and Jury Trial
Defendant was charged by amended information with first degree murder (Pen.
Code, § 187—count one)2 and being a felon in possession of a firearm (§ 29800, subd.
(a)(1)—count two). The amended information also alleged as to count one that defendant
2 Undesignated statutory references are to the Penal Code.
3
intentionally and personally discharged a firearm causing death. (§ 12022.53, subds. (b)-
(d)). Defendant pled not guilty and denied the allegations.
The matter was tried to a jury in July 2019. The prosecution’s witnesses testified
substantially as described ante. Defendant did not testify or present any witnesses.
The jury returned a verdict after five hours of deliberation. The jury found
defendant not guilty of first degree murder but guilty of second degree murder. The jury
found defendant guilty of being a felon in possession of a firearm and found true the
allegations that he intentionally and personally discharged a firearm causing death. The
trial court sentenced defendant to 15 years to life for second degree murder, plus 25 years
for the firearm enhancement under section 12022.53, subdivision (d), staying the
sentences on the remaining firearm enhancements, and three years for being a felon in
possession of a firearm, for an aggregate prison term of three years plus 40 years to life.
The trial court also imposed various fees and fines. This appeal timely followed.
II. DISCUSSION
A. Batson/Wheeler Motion
Defendant argues the trial court erred in denying his Batson/Wheeler motion. He
argues the prosecutor improperly exercised one of her peremptory challenges to excuse
an African American male prospective juror (Prospective Juror No. 5), resulting in a jury
that appears to have had no African American males. 3 We perceive no error.
1. Additional Background
Jury selection took place over three days. The trial court initially called a panel of
65 prospective jurors, 18 of whom were excused for hardship or cause. 4 The trial court
then called an augmented panel of 35 prospective jurors, 12 of whom were excused for
3As we shall discuss, the trial court found that defendant was likely African American,
as was the victim.
4 Of these, one was Prospective Juror No. 6, who we will discuss shortly.
4
hardship or cause, and two of whom deferred their service. The trial court then merged
the two panels into a pool of 68 prospective jurors, one of whom was excused for cause.
We have limited information concerning the racial composition of the jury pool.
What little information we have derives from defense counsel’s argument in support of
the Batson/Wheeler motion (which we discuss in greater detail momentarily), in which he
represented that four African Americans had been included in the original panel: two
males and two females. 5 Prospective Juror No. 6, who appears to have been one of the
two African American males, was excused for hardship by stipulation of the parties,
leaving Prospective Juror No. 5 as the only apparent African American male remaining
on the original panel. 6 We have not been provided with any information concerning the
racial composition of the augmented panel or empaneled jury.
Prospective Juror No. 5, who would become the subject of the Batson/Wheeler
motion, was a fulltime student from Citrus Heights. He was single with no children.
When asked whether he was familiar with the concept of snitching, Prospective Juror No.
5 responded in the affirmative. When asked how he came to know about snitching,
Prospective Juror No. 5 responded, “Friends, people.”
During voir dire, the prosecutor asked whether any of the prospective jurors were
uncomfortable with the idea of deliberating as a group. Prospective Juror No. 5 appears
to have been the only prospective juror to respond, stating, “I don’t talk a lot. I’m kind of
shy, so, yes.” The following colloquy occurred:
“[THE PROSECUTOR]: Okay. So, if you were chosen as a juror, and you were
asked to go back with your fellow jurors and deliberate together, would that be a
5Defense counsel specifically referred to the “original panel,” which we understand to
mean the original panel of 65 prospective jurors.
6 Defendant acknowledges that Prospective Juror No. 5 and Prospective Juror No. 6 were
seated next to one another by chance.
5
comfortable enough process that you could sit there and listen and chime in, if you had an
idea?
“[PROSPECTIVE JUROR NO. 5]: To be honest, I wouldn’t talk unless I was
talked to, so, yeah.
“[THE PROSECUTOR]: Would you be able to feel involved even if you didn’t
talk a lot, that you would be listening, and you’d form an opinion based on the overall
discussion and your interpretation of the evidence?
“[PROSPECTIVE JUROR NO. 5]: Yeah.
“[THE PROSECUTOR]: Okay. Great.”
The parties then began exercising their peremptory challenges. The prosecutor
exercised her third peremptory challenge to excuse Prospective Juror No. 5. Defense
counsel then made the Batson/Wheeler motion.
Defense counsel began his argument by stating that Prospective Juror No. 5 and
defendant were both young, African American males. Defense counsel continued, “And
the original panel that had come up from the Jury Commissioner, I noticed that there
were essentially two African American males and two African American females.” 7
Defense counsel estimated that Prospective Juror No. 5 was “probably under 25,” adding
that he was a “college student at a local community college, where he is studying
engineering.” Defense counsel acknowledged that Prospective Juror No. 5 was familiar
with the concept of snitching, but observed he was no more familiar with the concept
than the average person. Defense counsel concluded by arguing there was nothing in
Prospective Juror No. 5’s responses to suggest he would be unable to serve as an
unbiased juror. The prosecutor declined the trial court’s invitation to respond to defense
counsel’s argument.
7 As indicated ante, defense counsel’s representation appears to be the only information
in the record concerning the racial composition of the jury pool.
6
The trial court then ruled on the motion. The trial court began by confirming with
defense counsel that the motion was based on race. The trial court then found that
Prospective Juror No. 5 appeared to be African American, and defendant also appeared to
be African American, and thus, both appeared to be members of the same cognizable
group. (See People v. Clair (1992) 2 Cal.4th 629, 652 [holding that African Americans
are a cognizable group for Batson/Wheeler purposes].) The trial court further found the
prosecutor asked Prospective Juror No. 5 the same questions she asked the other
prospective jurors and did not ask him “a proportionately different number of questions.”
The trial court recognized that Prospective Juror No. 6 may have been African
American but found his excusal for hardship was not evidence to support a prima facie
showing. “Even if it were,” the trial court continued, “the evidence as a whole does not
support a prima facie showing.” The trial court observed that membership in the same
cognizable group as the defendant does not, without more, establish a prima facie case of
discrimination. (See, e.g., People v. Bonilla (2007) 41 Cal.4th 313, 342-343; People v.
Turner (1994) 8 Cal.4th 137, 164.) The trial court also observed that the victim, J.R.,
appears to have been a member of the same group. “Under the totality of the
circumstances,” the trial court concluded, “the [c]ourt cannot reasonably infer a
discriminatory purpose.” Accordingly, the trial court denied the motion.
2. Applicable Legal Principles
“The prosecution’s use of peremptory challenges to remove prospective jurors
based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a
jury drawn from a representative cross-section of the community under article I, section
16 of the California Constitution and his right to equal protection under the Fourteenth
Amendment to the United States Constitution.” (People v. Blacksher (2011) 52 Cal.4th
769, 801.) The discriminatory use of peremptory challenges harms not only defendants
but also “the excluded jurors and the community at large,” as it “forecloses a significant
opportunity to participate in civic life” (Powers v. Ohio (1991) 499 U.S. 400, 406, 409)
7
and “ ‘undermine[s] public confidence in the fairness of our system of justice’ ” (Johnson
v. California, supra, 45 U.S. at p. 172). “The exclusion by peremptory challenge of a
single juror on the basis of race or ethnicity is an error of constitutional magnitude
requiring reversal.” (People v. Silva (2001) 25 Cal.4th 345, 386.)
“We follow a familiar three-step process in evaluating a defendant’s
Batson/Wheeler motion. First, the defendant must make a prima facie case by showing
facts sufficient to support an inference of discriminatory purpose. [Citation.] Second, if
the defendant makes a prima facie showing, the burden shifts to the prosecutor to offer a
permissible, nondiscriminatory explanation for the strike. [Citation.] Third, if the
prosecutor offers a nondiscriminatory explanation, the trial court must decide whether
that explanation is genuine, or whether impermissible discrimination in fact motivated the
strike.” (People v. Battle (2021) 11 Cal.5th 749, 772.)
The trial court here denied the Batson/Wheeler motion at the first step, finding
defendant failed to make the required prima facie showing. A defendant makes a prima
facie showing by establishing that “the totality of the relevant facts ‘ “gives rise to an
inference of discriminatory purpose.” ’ ” (People v. Scott (2015) 61 Cal.4th 363, 384.)
Whether a prima facie showing has been made depends upon “the entire record of voir
dire as of the time the motion was made,” and “certain types of evidence may prove
particularly relevant.” (Ibid.) “Among these are that a party has struck most or all of the
members of the identified group from the venire, that a party has used a disproportionate
number of strikes against the group, that the party has failed to engage these jurors in
more than desultory voir dire, that the defendant is a member of the identified group, and
that the victim is a member of the group to which the majority of the remaining jurors
belong. [Citation.] A court may also consider nondiscriminatory reasons for a
peremptory challenge that are apparent from and ‘clearly established’ in the record
[citations] and that necessarily dispel any inference of bias.” (Ibid.)
8
We review the denial of a Batson/Wheeler motion at the first step deferentially,
“considering only whether substantial evidence supports the trial court’s conclusion.”
(People v. Battle, supra, 11 Cal.5th at p. 772.) “In conducting our review, we remain
mindful of the ‘low threshold’ showing required for Batson’s first step. [Citation.] This
step should not ‘be so onerous that a defendant would have to persuade the judge—on the
basis of all the facts, some of which are impossible for the defendant to know with
certainty—that the challenge was more likely than not the product of purposeful
discrimination.’ [Citation.] It is satisfied simply by evidence sufficient to permit us to
draw an inference that discrimination may have occurred.” (Id. at p. 773.)
3. Analysis
Before we begin our analysis, we observe that defendant confirmed with the trial
court that the Batson/Wheeler motion was based solely on race, rather than race and
gender. We readily acknowledge that African American males constitute a cognizable
group for Batson/Wheeler purposes (see People v. Armstrong (2019) 6 Cal.5th 735, 768),
but defendant did not articulate this basis for his motion in the trial court. Defendant
suggested the prosecutor was using peremptory challenges to discriminate against
African Americans generally, male and female. Defendant did not specifically identify
African American males as the relevant cognizable group and arguably forfeited the
argument he advances here. (See People v. Cunningham (2015) 61 Cal.4th 609, 662
[defendant must clearly articulate Batson/Wheeler objection to preserve issue]; see also
People v. Cornwell (2005) 37 Cal.4th 50, 70, fn. 4, overruled on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [Batson/Wheeler objections that prosecutor
was attempting to exclude Hispanic and African American jurors failed to preserve
argument that prosecutor was singling out African American females]; see also People v.
Cleveland (2004) 32 Cal.4th 704, 734 [same].) But even assuming the argument was
preserved, we would reject it.
9
Defendant’s claim of discrimination rests on the fact that the prosecutor struck
Prospective Juror No. 5, the only apparent African American male remaining after
Prospective Juror No. 6 was excused for hardship. 8 Defendant observes that the
exclusion of a single juror can violate Batson/Wheeler and emphasizes the low threshold
for making a prima facie showing. 9 Although these arguments are worthy of careful
consideration, they fail to carry the day.
While it is true that “[t]he exclusion by peremptory challenge of a single juror on
the basis of race or ethnicity is an error of constitutional magnitude requiring reversal”
(People v. Silva (2001) 25 Cal.4th 345, 386), the prima facie showing is not made merely
by establishing that an excluded juror was a member of a cognizable group. (See People
v. Howard (2008) 42 Cal.4th 1000, 1018; People v. Bonilla, supra, 41 Cal.4th at p. 343.)
Rather, “ ‘in drawing an inference of discrimination from the fact one party has excused
“most or all” members of a cognizable group . . . , a court finding a prima facie case is
necessarily relying on an apparent pattern in the party’s challenges.’ [Citation.] Such a
pattern will be difficult to discern when the number of challenges is extremely small.”
(People v. Bonilla, supra, at p. 343, fn. 12; see also People v. Battle, supra, 11 Cal.5th at
p. 776 [“ ‘Although circumstances may be imagined in which a prima facie case could be
shown on the basis of a single excusal, in the ordinary case . . . to make a prima facie case
after the excusal of only one or two members of a group is very difficult’ ”].)
8 Defendant does not challenge the excusal of Juror No. 6.
9 Defendant also directs our attention to Assembly Bill No. 3070 (2019-2020 Reg. Sess.),
which added section 231.7 to the Code of Civil Procedure. (Stats. 2020, ch. 318, §§ 1-3.)
The new law, which was animated by concerns that the Batson/Wheeler framework has
failed to protect against implicit bias in jury selection (Stats. 2020, ch. 318, § 1), will
become effective for jury trials in which jury selection begins on or after January 1, 2022
(Code Civ. Proc., § 231.7, subd. (i)), and thus does not apply here.
10
The prosecutor here challenged one of only two apparent African American males
from the original panel of 65 prospective jurors, and the only apparent African American
male remaining after Prospective Juror No. 6 was excused for hardship. Although the
prosecutor appears to have challenged every African American male remaining in the
original panel, the small sample size “ ‘ “makes drawing an inference of discrimination
from this fact alone impossible.” ’ ” (People v. Parker (2017) 2 Cal.5th 1184, 1212.)
Even assuming the sample was complete, and no African American males were included
in the augmented panel, “ ‘ “ ‘the challenge of one or two jurors can rarely suggest a
pattern of impermissible exclusion.’ ” ’ ” (Ibid. [prosecutor’s peremptory challenges
against the only two African Americans in a 136-person pool of prospective jurors was
insufficient to support an inference that the prosecutor challenged them on account of
their race]; People v. Harris (2013) 57 Cal.4th 804, 835 [given lack of African American
prospective jurors, the fact that the prosecutor exercised peremptory challenges against
the two who had been called to the jury box did not establish a prima facie showing];
People v. Bonilla, supra, 41 Cal.4th at pp. 342-343 [prosecutor’s peremptory challenges
against two African Americans in a pool of 78 prospective jurors did not establish a
prima facie case].)10 Furthermore, though Prospective Juror No. 5 and defendant were
10 Defendant suggests supporting evidence of group-based bias may be found in recent
census data, which shows that African Americans represent 10.9 percent of the
population in Sacramento County. We question the relevance of this data, given that
defendant now purports to define the relevant cognizable group as African American
males. But even accepting this data point, defendant does not explain how the county
population provides an appropriate reference point for Batson/Wheeler analysis. And
indeed, Supreme Court precedent suggests it is not. Our Supreme Court has explained:
“ ‘[A] more complete analysis of disproportionality compares the proportion of a party’s
peremptory challenges used against a group to the group’s proportion in the pool of jurors
subject to peremptory challenge.’ ” (People v. Parker, supra, 2 Cal.5th at p. 1212, fn. 12;
see People v. Bell (2007) 40 Cal.4th 582, 598, fn. 4, disapproved on another ground in
People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 [same].) So far as the record
reveals, the prosecutor exercised one out of 16 peremptory challenges against African
American males (or 6.25 percent), who in turn constituted one of 47 remaining
11
both African American men, any inference of discrimination was weakened by the fact
that the victim, J.R., was also an African American man. (See People v. DeHoyos (2013)
57 Cal.4th 79, 115-116 [that the defendant and the victim were the same race supported
the trial court’s denial of the Batson/Wheeler motion]; People v. Jones (2017) 7
Cal.App.5th 787, 806 [that the victims were members of the same cognizable group as
the defendant supported the trial court’s finding that the defendant failed to establish a
prima facie case].)
Defendant argues that an inference of discriminatory purpose arose because
Prospective Juror No. 5 “objectively was an ideal juror for the prosecution [because] [t]he
prosecutor’s strike removed the only African-American male remaining in the venire.”
But our review of the record reveals valid, nondiscriminatory reasons for the challenge.
For one thing, Prospective Juror No. 5 was a fulltime student, “probably under 25.”
Youth and lack of life experience are legitimate reasons to reject a prospective juror.
(See People v. Lomax (2010 49 Cal.4th 530, 575 [ “potential juror’s youth and apparent
immaturity are race-neutral reasons”]; People v. Neuman (2009) 176 Cal.App.4th 571,
582 [fact that excused jurors were all “young students, inexperienced at life” supported
trial court’s finding of no prima facie case].) For another thing, Prospective Juror No. 5
was, by his own account, “kind of shy,” and unlikely to speak unless spoken to, raising
prospective jurors in the original panel (or 2.1 percent), and an unknown proportion of
the jury pool as a whole. Again, we are unable to draw any inference of discrimination
from such a small sample size, even assuming the sample represents the jury pool as a
whole, as opposed to only the original panel. (See People v. Battle, supra, 11 Cal.5th at
p. 775 [no inference of discrimination where prosecutor used approximately 18 percent of
his strikes by the time of the Batson/Wheeler motion against African American
prospective jurors, who constituted approximately 8 percent of the pool subject to
peremptory challenge]; People v. Bell, supra, at p. 599, fn. 4 [no inference of
discrimination where prosecutor used 12.5 percent of peremptory challenges against
African American women, but there were only three African American women in the
panel of 47 prospective jurors (or 6.4 percent)].)
12
questions about his ability to participate in deliberations with other jurors. Prosecutors
may “legitimately choose to shy away from . . . unduly timid jurors.” (People v. Duff
(2014) 58 Cal.4th 527, 546.) That Prospective Juror No. 5 described himself as shy and
reserved counters any concern that the challenge may have been prompted by subjective,
demeanor-related observations that may sometimes provide a pretext for discrimination.
(See People v. Baker (2021) 10 Cal.5th 1044, 1081 [recognizing that demeanor-based
justifications for peremptory challenges may in some cases provide a pretext for
discrimination, but concluding this was not the case where the prosecutor’s description of
the prospective juror’s demeanor was uncontroverted].)11
Viewing the totality of the record, we conclude substantial evidence supports the
trial court’s determination that defendant failed to make a prima facie showing the
peremptory challenge of Prospective Juror No. 5 was prompted by a discriminatory
purpose. We therefore reject defendant’s Batson/Wheeler challenge.
B. Prosecutorial Misconduct
Defendant next argues the prosecutor engaged in prosecutorial misconduct in
closing argument by shifting the burden of proof to the defense. We disagree.
1. Additional Background
During closing argument, the prosecutor reviewed the circumstantial evidence
supporting defendant’s culpability as the shooter, including his affiliation with the Trigga
Mob gang. The prosecutor recounted that members of the Trigga Mob gang patrolled the
apartment complex and approached unfamiliar cars in the parking area, often displaying a
gun. The prosecutor also reminded the jury that defendant himself had been seen with a
11 Defendant suggests for the first time in his reply brief that the prosecutor engaged in a
perfunctory or desultory voir dire of Prospective Juror No. 5. We do not consider
arguments made for the first time in a reply brief. (People v. Peevy (1998) 17 Cal.4th
1184, 1206.)
13
gun hours before the shooting. The prosecutor theorized that defendant shot J.R. because
he did not recognize J.R.’s rental car.
Defense counsel argued the circumstantial evidence supported the reasonable
conclusion that another member of the Trigga Mob gang shot J.R. Defense counsel
elaborated: “What has not been excluded in this case is Trigga Mob is supposed to be in
this area protecting it. [Trigga] Mob is supposed to be out there checking cars. Trigga
Mob is supposed to be doing this actively in their gang territory. [¶] But on one night,
according to [D.R.], there were no Trigga Mob members out there. Nobody did anything
else, and it was only [defendant] and [E.V.] who were out in that apartment complex.”
Defense counsel concluded that the prosecution failed to prove beyond a reasonable
doubt that defendant was the shooter, as opposed to another member of the Trigga Mob
gang.
In rebuttal, the prosecutor argued there was no evidence to support the defense
theory that another gang member shot J.R. The prosecutor noted that D.R. testified the
shooting took place outside a small apartment complex, late at night, with very few
people around. The prosecutor continued: “And note too that the defense attorney has
subpoena power just like the People do. If there was a witness out there who saw another
person around, you would have heard from them or him.” Defense counsel objected to
the prosecutor’s argument as “[i]mproper burden shifting.” The trial court overruled the
objection, and the prosecutor continued, stating: “If there was a witness out there that
knew of some crazy beef between [J.R.] and another third person, you would have heard
from that witness. [¶] If there was a witness out there that would support the defense
theory in any way, you would have heard from that person. You didn’t because that
evidence doesn’t exist.”
2. Applicable Legal Principles
A prosecutor has significant leeway during closing arguments to argue his or her
case vigorously. (People v. Stanley (2006) 39 Cal.4th 913, 951.) “A prosecutor may
14
fairly comment on and argue any reasonable inferences from the evidence. [Citation.]
Comments on the state of the evidence or on the defense’s failure to call logical
witnesses, introduce material evidence, or rebut the People’s case are generally
permissible. [Citation.] However, a prosecutor may not suggest that ‘a defendant has a
duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ ”
(People v. Woods (2006) 146 Cal.App.4th 106, 112; see People v. Bradford (1997) 15
Cal.4th 1229, 1340.)
“ ‘A prosecutor’s conduct violates a defendant’s constitutional rights when the
behavior comprises a pattern of conduct so egregious that it infects “ ‘the trial with
unfairness as to make the resulting conviction a denial of due process.’ ” ’ ” (People v.
Young (2019) 7 Cal.5th 905, 932.) “ ‘When a claim of misconduct is based on the
prosecutor’s comments 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.’ ” ’ ” (People v. Rivera (2019) 7 Cal.5th 306, 334.)
3. Analysis
Defendant acknowledges the prosecutor could properly comment on the defense’s
failure to call logical witnesses. (People v. Woods, supra, 146 Cal.App.4th at p. 112.)
However, defendant argues the prosecutor crossed the line by commenting on the
defense’s failure to call unavailable witnesses. Defendant observes that some witnesses
were reluctant to testify for fear of retaliation by the Trigga Mob gang. Defendant
suggests other potential witnesses may have been unavailable to testify due to the same
fear of retaliation. (See generally People v. Rojas (1975) 15 Cal.3d 540, 547 [witness
who testified he had been subjected to threats and violence was unavailable on grounds of
fear for his safety and that of his family]; People v. Quaintance (1978) 86 Cal.App.3d
594, 600 [witness who testified he feared for his life was properly declared unavailable];
compare, People v. Sul (1981) 122 Cal.App.3d 355, 363 [no evidence of threats or
violence to support a finding of witness fear sufficient to render him unavailable].)
15
Relying on People v. Ford (1988) 45 Cal.3d 431 (Ford), People v. Stankewitz (1990) 51
Cal.3d 72 (Stankewitz), and People v. Frohner (1976) 65 Cal.App.3d 95 (Frohner),
defendant argues the prosecutor committed misconduct by commenting on the defense
failure to call such witnesses, without first establishing that they were available and
would be expected to testify favorably to the defense. None of these cases helps
defendant.
In Ford, the defendant and three codefendants were charged with burglary. (Ford,
supra, 45 Cal.3d at p. 436.) Before the defendant’s trial, a jury convicted two
codefendants of being accessories to a felony, the third had not yet been tried. (Ibid.)
During the trial, the defendant testified he was not at the crime scene at the time of the
burglary, but with two of the codefendants at one of their homes. (Id. at p. 438.) During
closing argument, the prosecutor commented on the fact that neither of the two
codefendants defendant had claimed to be with had been called to support the defendant’s
alibi defense. (Ibid.) The trial court granted the defendant’s motion for a new trial based
on the court’s expectation that the codefendants would have exercised their rights against
self-incrimination had they been called to testify, and any comment upon that invocation
would have been forbidden by Evidence Code section 913. (Ford, supra, at p. 435.) Our
Supreme Court concluded it was error to grant the new trial motion, since the
codefendants were never called upon to invoke their rights against self-incrimination and
were “therefore, literally ‘available.’ ” (Id. at p. 440.) Consequently, the Supreme Court
concluded the prosecutor could appropriately comment on the defense failure to call the
codefendants as witnesses. (Id. at pp. 435-436.) In dictum, the Court observed: “We
recognize that a rule permitting comment on a defendant’s failure to call witnesses is
subject to criticism if applied when the reason for his failure to do so is ambiguous, or if
the defendant is simply standing on his right to have the state prove his guilt. Therefore,
the trial court must have discretion to determine when the circumstances of the case are
such that comment is not permissible. When the defendant has taken the stand, however,
16
and offered an alibi defense in which he identifies other persons who could support his
testimony, and those witnesses are available and subject to subpoena, there should be no
question but that comment is appropriate and permissible.” (Id. at p. 447.)
In Frohner, defense counsel attempted to subpoena an informant who participated
in undercover drug buys from the defendant. (Frohner, supra, 65 Cal.App.3d at pp. 100-
101.) The informant testified for the prosecution at the preliminary hearing but could not
be found for trial. (Id. at p. 101.) The prosecution had a duty to make a reasonable effort
to locate the informant, but made little effort to do so, despite numerous requests from the
defense. (Id. at pp. 100-102.) During closing argument, the prosecutor challenged the
defendant’s entrapment defense, noting the defense failed to call the informant as a
witness. (Id. at pp. 108-109.) The court of appeal found the prosecutor’s comment was
improper because he knew the informant could not be served by subpoena; thus, his
“only apparent reason for the comment was an improper one: to suggest to the jury that
defendant had purposely failed to call [the informant] as a witness.” (Id. at p. 109.)
In Stankewitz, the prosecutor called only one of four witnesses to a murder.
(Stankewitz, supra, 51 Cal.3d at p. 102.) In closing argument, defense counsel
commented: “ ‘And I think that the fact that those people are absent when they are
available is something that you should give great consideration to.’ ” (Ibid.) The
prosecutor objected that there was no evidence that these witnesses were available.
(Ibid.) The trial court sustained the objection. (Ibid.) The Supreme Court concluded:
“The prosecutor’s objection was properly sustained. Nothing in the record indicated
whether [the other three witnesses] were available. It is axiomatic that counsel may not
state or assume facts in argument that are not in evidence.” (Ibid.) The Stankewitz court
then distinguished Ford, stating: “There, we held that a codefendant who has not actually
exercised his privilege against self-incrimination is not unavailable and therefore the
prosecutor did not err in commenting on defendant’s failure to call several codefendants
who might have substantiated his alibi defense. Ford does not, however, permit the
17
prosecutor or defense counsel to state as a fact that a codefendant is available as a witness
when there is no evidence to substantiate the statement.” (Ibid.)
From Ford and Frohner, we glean that prosecutorial misconduct may occur when
a defendant testifies and identifies a specific witness who can potentially exculpate him,
and the prosecutor comments on the defense’s failure to call that witness, knowing that
the witness is unavailable. (Ford, supra, 45 Cal.3d at p. 447; Frohner, supra, 65
Cal.App.3d at pp. 108-109.) From Stankewitz, we take the principle that a party is
prohibited from asserting facts that are not supported by the evidence. (Stankewitz,
supra, 51 Cal.3d at p. 102.) None of these cases hold that a prosecutor who argues the
defense failed to call a logical witness has the burden of demonstrating the witness was
available or would be expected to provide favorable testimony. Defendant’s reliance on
Ford, Frohner, and Stankewitz is unavailing.
Defendant argues the prosecutor’s comments sparked a missing witness inference,
thereby shifting the burden of proof from the prosecution to the defense. We are not
persuaded. Our Supreme Court has repeatedly recognized that “ ‘[a] distinction clearly
exists between the permissible comment that a defendant has not produced any evidence,
and . . . an improper statement that a defendant has a duty to produce evidence, or a duty
or burden to prove his or her innocence.’ ” (People v. Steskal (2021) 11 Cal.5th 332,
352; see also People v. Bennett (2009) 45 Cal.4th 577, 596 [comments do not
impermissibly shift the burden of proof when the prosecutor does not “state or imply that
defendant had a duty to produce evidence”].) Applying this distinction, the high court
has routinely rejected claims of misconduct where the prosecutor merely commented on
the lack of evidence offered by the defense or the defendant’s failure to call logical
witnesses. For example, in People v. Ratliff (1986) 41 Cal.3d 675, the court concluded
the prosecutor had not engaged in misconduct when he stated, “ ‘Now is there any
evidence on the other side? Any evidence at all? None has been presented to you.
Absolutely zero has been presented to you by [the defendant] and his attorney.’ ” (Id. at
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p. 691.) In People v. Johnson (1989) 47 Cal.3d 1194, overruled on other grounds in
People v. Gutierrez (2017) 2 Cal.5th 1150, 1174, there was no error where the prosecutor
said: “ ‘Ladies and gentlemen, you have now heard the entirety of the case . . . .
Obviously, if there has been some or is some defense to this case, you’d either have heard
it by now or for some reason nobody’s talking about it.’ ” (Id. at p. 1236.) In People v.
Morris (1988) 46 Cal.3d 1, disapproved on other grounds by In re Sassounian (1995) 9
Cal.4th 535, 543, fn. 5, the prosecutor did not engage in misconduct when he argued
there was “ ‘not a shred of evidence to suggest that anybody else did the killing,’ ” and
when he urged the jury to, “ ‘put yourself in the position of being a defendant and you
can bet your boots that if you had anything to offer by way of evidence, by way of alibi,
that you would offer it,’ ” adding, “ ‘You don’t have it.’ ” (Id. at p. 36.) In each of these
cases, the prosecutor made no reference to the defendant’s decision not to testify, but
instead permissibly commented on the defendant’s failure to offer any material evidence
to support his asserted defenses. (See People v. Gonzales (2012) 54 Cal.4th 1234, 1275
[“As for the prosecutor’s reference to witnesses not called, it is neither unusual nor
improper to comment on the failure to call logical witnesses”].) So too here. The
prosecutor did not comment on defendant’s decision not to testify or suggest that
defendant had the burden of presenting evidence to prove his innocence. The prosecutor
merely responded to the asserted defense that another gang member may have shot J.R.,
by pointing out that there was no evidence to support that theory. There was no
misconduct.
C. Sentencing Discretion
Defendant’s sentence included an enhancement of 25 years to life for personal
and intentional discharge of a firearm causing great bodily injury or death under section
12022.53, subdivision (d). Defendant argues remand is required because the trial court
failed to recognize its discretion to strike the greater firearm enhancement under section
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12022.53, subdivision (d) and impose a lesser firearm enhancement under subdivision (b)
or (c). Defendant’s argument lacks merit.
a. Additional Background
As noted, the jury found true allegations that defendant personally and
intentionally discharged a firearm causing death. (§ 12022.53, subds. (c)-(d).) Prior to
sentencing, defendant filed a sentencing memorandum asking that the trial court stay the
sentences for the firearm enhancements. The trial court appears to have interpreted
defendant’s request as encompassing an invitation to strike or dismiss the firearm
enhancements.
During the sentencing hearing, the trial court expressly acknowledged its
discretion to strike or dismiss the firearm enhancements entirely, strike or dismiss the
punishments on the enhancements, or strike a greater firearm enhancement (e.g.,
§ 12022.53, subd. (d)) and impose a lesser included one (e.g., § 12022.53, subds. (b) or
(c)). The trial court declined to exercise this discretion, citing defendant’s criminal
record, history of poor performance in custody, and the vicious and senseless nature of
the crime. The trial court explained: “It appears to me that imposing anything short of
the applicable enhancement and punishment in [s]ubdivision (d) would ignore or distort
an accurate reflection of his criminal conduct, and it would minimize the significant
danger he poses to society because it would significantly reduce his period of
imprisonment.” Accordingly, the trial court imposed an enhancement of 25 years to life
under section 12022.53, subdivision (d) and stayed sentence on the remaining
enhancements. (§ 12022.53, subd. (f).)
b. Analysis
Section 12022.53 provides three different sentence enhancements for the personal
use of a firearm in the commission of enumerated offenses: a 10-year enhancement for
the personal use of a firearm (§ 12022.53, subd. (b)); a 20-year enhancement for the
personal and intentional discharge of a firearm (§ 12022.53, subd. (c)); and a 25-year-to-
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life enhancement for the personal and intentional discharge of a firearm causing great
bodily injury or death (§ 12022.53, subd. (d)). Section 12022.53, subdivision (h), in
effect at the time of defendant’s December 2019 sentencing, authorizes the trial court to
strike or dismiss an enhancement in the interest of justice pursuant to section 1385.
Defendant contends the trial court failed to recognize its discretion to strike the 25-year-
to-life enhancement under subdivision (d) and impose a lesser enhancement of 10 years
under subdivision (b) or 20 years under subdivision (c). The record plainly belies
defendant’s contention.
Defendant’s argument for remand rests on People v. Morrison (2019) 34
Cal.App.5th 217 (Morrison), in which the court held that section 12022.53, subdivision
(h) allows a trial court, in the exercise of its discretion, to strike a greater firearm
enhancement and impose an uncharged lesser enhancement in the interests of justice
pursuant to section 1385. (Morrison, supra, at pp. 220-223.) Defendant’s reliance on
Morrison is misplaced. 12 There, the defendant was charged with a single firearm
enhancement under section 12022.53, subdivision (d), which the jury found true.
(Morrison, supra, at p. 221.) The court concluded that the trial court had discretion to
impose a lesser, uncharged firearm enhancement under section 12022.53, subdivision (b)
12 Several courts of appeal have disagreed with Morrison’s reasoning, and the scope of
the trial court’s discretion to substitute a lesser uncharged firearm enhancement for a
greater firearm enhancement is currently pending before the California Supreme Court.
(See People v. Tirado (2019) 38 Cal.App.5th 637, 643, review granted November 13,
2019, S257658 [“Nothing in the plain language of sections 1385 and 12022.53,
subdivision (h) authorizes a trial court to substitute one enhancement for another”]; see
also People v. Garcia (2020) 46 Cal.App.5th 786, 793-794, review granted June 10,
2020, S261772 [following Tirado and holding that § 12022.53, subd. (h) does not grant
trial courts discretion to substitute lesser included firearm enhancements].) We need not
address this split in authority, because the present case does not involve the imposition of
uncharged lesser enhancements.
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or (c) “as a middle ground to a lifetime enhancement under section 12022.53, subdivision
(d), if such an outcome was found to be in the interests of justice under section 1385.”
(Morrison, supra, at p. 223.) The case was remanded because nothing in the record
indicated that the trial court understood this option was available, and, at the time of
sentencing, “no published case had held an uncharged lesser firearm enhancement could
be imposed in lieu of an enhancement under section 12022.53, subdivision (d) in
connection with striking the greater enhancement.” (Id. at p. 224.) Significantly, the
Morrison court explicitly limited its holding to “cases where those enhancements have
not been charged in the alternative and found true.” (Id. at p. 225.) This is not such a
case.
Unlike the defendant in Morrison, defendant was charged with firearm
enhancements under section 12022.53, subdivisions (b), (c), and (d), each of which was
found true. Had the trial court exercised its discretion to strike or dismiss the 25-year-to-
life enhancement under subdivision (d), the court could have then considered whether to
impose one of the lesser enhancements under subdivisions (b) or (c). (See § 12022.53,
subd. (f) [“If more than one enhancement per person is found true under this section, the
court shall impose upon that person the enhancement that provides the longest term of
imprisonment].) This was clearly the state of the law at the time of sentencing, as the
Morrison court acknowledged some eight months earlier, when, in laying the
groundwork for the novel issue raised in that case, the court explained: “In a case where
the jury had also returned true findings of the lesser enhancements under section
12022.53, subdivisions (b) and (c), the striking of an enhancement under section
12022.53, subdivision (d) would leave intact the remaining findings, and an enhancement
under the greatest of those provisions would be mandatory unless those findings were
also stricken in the interests of justice.” (Morrison, supra, 34 Cal.App.5th at p. 851; see
also People v. McDaniels (2018) 22 Cal.App.5th 420, 423-425 & fn. 2, 427-428, [noting
that under section 12022.53, subdivision (h) and section 1385, the trial court had the
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discretion to strike a firearm enhancement under section 12022.53, subdivision (d), and
then either impose time for one of the stayed lesser firearm enhancements under
subdivisions (b) and (c) or strike them as well].)
Nothing in the record suggests the trial court was unaware that striking the 25-
year-to-life enhancement would leave the 20- and 10-year enhancements on the table. To
the contrary, the record affirmatively demonstrates that the trial court was aware of its
discretion but declined to exercise it. No remand is required.
D. Fines and Fees
Finally, defendant challenges the imposition of various fines and fees, including:
a $10,000 restitution fine (§ 1202.4), an $80 court operations assessment (§ 1465.8), a
$60 conviction assessment fee (Gov. Code, § 70373), a $453 main jail booking fee (Gov.
Code, § 29550.2), a $90 main jail classification fee (Gov. Code, § 29550.2), and $31,012
in direct victim restitution (§ 12024, subd. (f)). 13 Relying on People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas), defendant argues the trial court violated his constitutional
rights by imposing these fines and fees without determining his ability to pay. The
People respond that defendant forfeited his Dueñas challenge by failing to object in the
trial court. We agree with the People.
The decision in Dueñas was issued on January 8, 2019. (Dueñas, supra, 30
Cal.App.5th 1157.) Defendant was sentenced some 11 months later, on December 13,
2019. Defendant made no mention of Dueñas or ability to pay in the trial court, and thus
forfeited this challenge. (See, e.g., People v. Avila (2009) 46 Cal.4th 680, 729 [rejecting
argument that defendant was exempted from forfeiture because restitution fine amounted
to an unauthorized sentence based upon his inability to pay].) That defendant’s ability to
pay claims are constitutional in character does not alter application of the forfeiture
13The trial court also imposed and suspended a $10,000 parole revocation fine. (§
1202.45.)
23
doctrine. (See People v. Trujillo (2015) 60 Cal.4th 850, 859 [constitutional exception to
forfeiture rule did not apply to claim concerning failure to obtain express waiver of an
ability to pay hearing]; In re Sheena K. (2007) 40 Cal.4th 875, 880-881 [noting
longstanding rule that a constitutional right may be forfeited in criminal proceedings by
“ ‘ “failure to make timely assertion of the right before a tribunal having jurisdiction to
determine it” ’ ”].) We therefore conclude that defendant has forfeited his Dueñas claim.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
KRAUSE, J.
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