1

Filed 5/24/22 (unmodified opinion attached)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KEJHONNE M. HENDERSON,

Defendant and Appellant.

C088883

(Super. Ct. No. 17FE008447)

ORDER MODIFYING OPINION 

AND DENYING PETITION FOR 

REHEARING

[NO CHANGE IN JUDGMENT]

APPEAL from a judgment of the Superior Court of Sacramento County, Stacey 

Eurie Boulware, Judge. Affirmed as modified.

Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. 

Hokans, Supervising Deputy Attorney General, Timothy L. O’Hair, Deputy Attorney 

General, for Plaintiff and Respondent.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of Parts III – VIII and the dissenting opinion.
2

THE COURT:

It is ordered that the partially published opinion filed on May 11, 2022, be 

modified as follows:

1. On page 63, under the heading Disposition, delete and replace with the following:

We affirm the conviction but remand to allow the trial court to consider exercising 

its discretion under section 12022.53, subdivision (h) and section 1385 to strike the 

section 12022.53, subdivision (d) enhancement in the interest of justice and impose 

instead a lesser enhancement under subdivisions (b) or (c) of section 12022.53.

This modification does not change the judgment. Appellant’s petition for 

rehearing is denied.

FOR THE COURT:

 /s/

HULL, Acting P. J.

 /s/

HOCH, J.

 /s/

MURRAY, J.



 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1

Filed 5/11/22; Opinion following transfer from Supreme Court (unmodified opinion)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KEJHONNE M. HENDERSON,

Defendant and Appellant.

C088883

(Super. Ct. No. 17FE008447)

APPEAL from a judgment of the Superior Court of Sacramento County, Stacey 

Eurie Boulware, Judge. Affirmed as modified.

Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. 

Hokans, Supervising Deputy Attorney General, Timothy L. O’Hair, Deputy Attorney 

General, for Plaintiff and Respondent.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of Parts III – VIII and the dissenting opinion.
2

Defendant Kejhonne M. Henderson shot and killed J.P. at a house party in the 

North Highlands neighborhood of Sacramento. Upset that music of a local rapper 

disparaging his neighborhood’s gang was being played, defendant exchanged heated 

words with the party’s host. When J.P. intervened, he and defendant agreed to step 

outside. On their way to the door, defendant pulled a handgun out of his waistband and, 

when they got outside, shot J.P. multiple times in the head and chest. A.J., one of the 

party goers tackled defendant and knocked the gun out of his hand. Defendant regained 

possession and shot A.J. multiple times before fleeing. J.P. died before emergency 

services arrived at the scene, but A.J. survived. 

A jury found defendant guilty of one count of second degree murder (Pen. Code, 

§ 187)1 and one count of attempted murder (§§ 664/187) and found true enhancement 

allegations that defendant personally discharged a firearm causing great bodily injury or 

death (§ 12022.53, subd. (d)) as to each count. The trial court sentenced defendant to 

serve an aggregate determinate term of seven years plus an aggregate indeterminate 

prison term of 65 years to life. 

On appeal, defendant contends: (1) the trial court prejudicially abused its 

discretion and violated his federal constitutional right to a jury drawn from a 

representative cross-section of the community by excusing two African-American 

prospective jurors for cause based on their stated belief that the criminal justice system 

treats African-Americans unfairly and because they were sympathetic towards defendant; 

(2) the trial court abused its discretion in dismissing a sitting juror during trial for 

dishonesty; (3) the prosecutor violated defendant’s federal constitutional rights by 

intentionally obtaining privileged and confidential information from the Director of the 

Conflict Criminal Defenders about defense counsel’s attempts to obtain expert witness 

1

 Undesignated statutory references are to the Penal Code. 
3

funding; (4) the trial court prejudicially abused its discretion and further violated 

defendant’s constitutional rights by allowing the prosecutor to present assertedly

misleading testimony and argument regarding the defense’s ability to perform an 

independent forensic analysis; (5) the trial court prejudicially erred by improperly 

instructing the jury regarding circumstantial evidence; (6) the cumulative prejudicial 

impact of the foregoing asserted errors requires reversal; (7) the trial court abused its 

discretion by not considering reducing the 25 years to life firearm enhancements to lesser 

included firearm enhancements; (8) the trial court erred by imposing a restitution fine 

without an ability to pay hearing in violation of People v. Dueñas (2019) 30 Cal.App.5th 

1157 (Dueñas); and (9) trial counsel provided constitutionally ineffective assistance of 

counsel by not submitting a Franklin2 package for future youthful offender parole 

consideration. 

In the published portion of this opinion, we conclude that a trial court may not 

excuse for cause African-American prospective jurors solely because of their belief that 

the criminal justice system treats African-Americans unfairly, but reject defendant’s 

assertion that the two African-American prospective jurors here were excused for that 

reason. They were excused because the trial court concluded that, based on the voir dire 

evidence, they could not be impartial because of their bias and sympathy for defendant. 

On this record, we cannot conclude the court’s ruling was an abuse of discretion; nor was 

defendant’s constitutional right to a jury drawn from a representative cross-section of the 

community violated. 

We further conclude the trial court erred in excusing a seated juror under section 

1089, because the record does not demonstrate to a demonstrable reality that the juror 

2

 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
4

could not perform his duties. However, applying the harmless error standard in People v. 

Watson (1956) 46 Cal.2d 818, 836 (Watson), we conclude the error was harmless. 

In the unpublished portion of this opinion, we reject defendant’s other claims of 

error, except as to his challenge to the firearm enhancement.

3

We affirm the conviction but remand to allow the trial court to consider exercising 

its discretion under section 12022.53, subdivision (h) and section 1385 to strike the 

section 12022.53, subdivision (d) enhancement in the interest of justice and impose 

instead a lesser enhancement under subdivisions (b) or (c) of section 12022.53.

FACTUAL AND PROCEDURAL BACKGROUND

The Shooting

On May 5, 2017, defendant’s girlfriend S.S. drove him to the house party.4 The 

host of the party was one of S.S.’s former friends, M.L. When S.S. pulled up, she saw “a 

3

 We previously filed an opinion addressing and rejecting defendant’s contention as to 

the firearm enhancement. We held in the unpublished portion of our opinion that the trial 

court did not abuse its discretion by not considering whether to reduce the firearm 

enhancement to a lesser included firearm enhancement. The California Supreme Court 

granted review on this issue and deferred the appeal pending its decision in People v. 

Tirado S257658. (People v. Henderson (2021) 68 Cal.App.5th 709, review granted 

November 23, 2021, S271346.) Our high court ultimately transferred the matter back to 

us with directions to vacate our decision and reconsider the cause in light of its decision 

in People v. Tirado (2022) 12 Cal.5th 688, which clarified that trial courts do have 

discretion to reduce firearm enhancements to a lesser included firearm enhancement 

under Penal Code section 12022.53, subdivision (b) or (c). 

4

 At trial, defendant’s defense was misidentification, but he does not challenge the 

sufficiency of the evidence as to his identity as the shooter on appeal. 

 Regarding how defendant got to the party, it is undisputed he was with S.S. earlier in 

the evening. He was with her at her house and then went out to dinner with her, her 

mother and younger brother, V.S. They arrived at the restaurant about 9:00 p.m. and 

returned to S.S.’s house about 11:30 p.m. Although S.S. denied bringing defendant to the 

party, as we describe post, multiple witnesses told the police they saw them together at 

the party. They also left the party at the same time, after defendant shot the two victims. 
5

crowd of people like outside” the party location, including M.L.’s mother. S.S. walked 

up with defendant and gave M.L.’s mother a hug before continuing into the house.

Inside the house, M.L. was playing music. When S.S. walked in with defendant, a 

song by Mozzy was playing. As the prosecution’s gang expert testified, Mozzy is a 

rapper and validated member of the Fourth Avenue Bloods from Oak Park. His lyrics 

disparage rival Del Paso Heights Bloods gang members, and people from “the Heights” 

do not like his music. 

S.S. spoke to M.L. in the living room while defendant exchanged words with 

another young man who was also in the living room. As M.L. explained in her police 

interview, while she could not hear what was being said between defendant and the other 

young man, there “was clearly a problem.”5

Defendant then turned his attention to M.L., saying “turn that sucka shit off” and 

“strictly twos Del Paso Heights.” M.L. understood this to mean he wanted her to change 

the Mozzy song that was playing. As she did so, defendant “just kept talking, talking 

about stupid twos, strictly the Heights, da-da-da-da-da, one Del Paso, this and that sucka 

shit.”6 

While defendant was confronting M.L. over the music, her close friend, J.P., 

entered the living room from the kitchen and asked her if she was okay. J.P. then 

confronted defendant, who responded: “ ‘What are you tryin’ to do? Let’s step 

outside.’ ” J.P. agreed. As they turned to step outside, defendant pulled a handgun out of 

And according to a statement S.S.’s brother gave to the police, they arrived back at S.S.’s 

house together later that night. We also note S.S. testified that defendant did not drive. 

A reasonable inference from all of the evidence is that S.S. drove defendant to the party. 

5

 Much of the evidence in the trial consisted of prior statements to the police of 

witnesses who had denied making those statements or had failures of recollection when 

they testified.

6

 As discussed, ante, these statements were things Del Paso Heights Bloods say.
6

his waistband and held it by his side. One of J.P.’s friends, J.M., saw defendant pull out 

the gun and walked out of the house ahead of defendant and J.P. Defendant opened fire 

on J.P. as soon as they got outside, shooting J.P. multiple times including the back of the 

head.

7

 As J.M. described in his statement to police: “He didn’t even give him a chance.” 

J.M. ran away after the first couple rounds were fired, but not before seeing defendant 

shoot his friend in the head and lower back. A different witness to the shooting explained 

in her statement to police that three rounds were fired while J.P. was standing. Five or 

six additional rounds were fired after J.P. fell to the ground. 

When defendant stopped firing, another of J.P.’s friends, A.J, chased defendant 

and tackled him to the ground, knocking the gun out of his hand. Defendant managed to 

pick up the gun and then shot A.J. three times before running away. M.L.’s mother, who 

was still outside when the shooting occurred, was also hit in the calf by one of the rounds 

fired by defendant.

8

 She and A.J. survived their injuries. J.P. died before emergency 

services arrived at the scene. 

Gang Evidence

As noted, while complaining about the music prior to the shooting, defendant 

refenced “stupid twos” and “strictly twos Del Paso Heights” while demanding that the 

party hosts “turn that sucka shit off.” A gang expert testified that members of the Del 

Paso Heights Bloods often use a gang sign meant to display the letter H, which “stands 

for The Heights.” This gang sign involves extending the pointer and pinky finger up. 

7

 A forensic pathologist testified J.P. was struck by at least seven rounds. One round 

entered the back of J.P.’s head on the left side. Two rounds entered in the back and one 

entered the right buttock. Rounds also entered J.P.’s right nostril, his chin area, and his

chest. J.P. also sustained gunshot wounds to both arms, but it was not clear whether these 

wounds were caused by separate additional rounds, or by two of the rounds that caused 

the other wounds. 

8

 No charges were filed naming M.L.’s mother as a victim.
7

Referring to this gang sign, Del Paso Heights Bloods often verbally claim membership in 

the gang by saying some variation of: “Twos Up, stupid twos, It’s all about the twos.” 

The term “Su[c]ka” is a derogatory term for rival gang members. The expert 

further opined that if a Mozzy song was playing at a party in Sacramento and a person 

said, “ ‘Shut that suc[k]a off,’ ” that would indicate that person was affiliated with a rival 

gang.

Identification Evidence

Although witnesses who previously identified defendant did not do so at trial, 

proof of defendant’s identity as the shooter was nevertheless strong. Both J.M. and M.L.

identified him out of a photo lineup. J.M. also described defendant as being a “dark 

skinned” African-American male, 5 feet 9 inches to 5 feet 10 inches in height, and about 

170 to 180 pounds. He further explained that defendant was wearing a blue hooded 

jacket when he walked into the party with a girl that generally matched S.S.’s description. 

The host described defendant as being, “probably like six-three, six-four,” and bigger in 

build, “maybe like 230,” but confirmed he was wearing a “navy blue” hooded sweatshirt 

with a “yellow Polo symbol” and also identified S.S. as the person he was with when they 

arrived at the party. Another witness, who did not identify defendant, described the 

shooter as being a “dark skinned” African-American male, 5 feet 11 inches to 6 feet in 

height, and wearing a “dark blue” hooded sweatshirt. 

From M.L.’s position inside the house, she was able to see S.S.’s response to the 

shooting. As M.L. explained, when the shooting started outside, “everyone was trying to 

get in” except for S.S. She pushed through the crowd of people coming inside and left 

the house. M.L. assumed she was leaving with defendant. This assumption turned out to 

be correct. As S.S.’s little brother, V.S., explained to a detective, he was playing video 

games at his home with a friend until around 2:00 a.m. At some point that night, S.S. and 

defendant “come in the door.” V.S. asked “where they were at” and “they just said that 

they had went to this person’s party.” Around this time, M.L. sent the following message 
8

to S.S. on Instagram: “I’m not stupid. You walked in with that nigga and got off with 

that nigga. My fucking bro gone. He was trippin cause the music I was playing.” 

Defendant was arrested at S.S.’s house later in the morning. A “blue zip-up” 

hooded sweatshirt was found during a search of the house. This sweatshirt had a yellow 

Polo symbol as witnesses described. DNA matching defendant’s profile was extracted 

from the sweatshirt. Gunpowder residue was also found on a sample collected from the 

right front cuff of the sweatshirt. 

DISCUSSION

I. African-American Prospective Jurors Excused for Cause 

Defendant contends the trial court prejudicially abused its discretion and violated 

his federal constitutional right to a jury selected from a fair cross-section of the 

community by excusing two African-American prospective jurors for cause, based on 

their belief that the criminal justice system treats African-Americans unfairly and because 

they were sympathetic towards defendant. As we shall discuss, the trial court excused the 

two prospective jurors because it concluded they could not be impartial. Their voir dire 

testimony supported a finding that they could not decide the case solely on the evidence 

without regard to sympathy to defendant. On this record, we cannot conclude the court 

abused its discretion. Nor was defendant’s constitutional right to a jury drawn from a fair 

cross-section of the community violated.

A. Additional Background

During voir dire, defense counsel asked the panel of prospective jurors whether 

anyone had any negative experiences with law enforcement. Prospective Juror No. 1

responded: “I have a concern with law enforcement in general.” She continued: 

“Especially in this day and age, and particularly because I have two young adult sons and 

two young adult stepsons. So I’m concerned daily for any interaction that they might 

come in contact with law enforcement officers.” Defense counsel followed up: “Okay. 

And I don’t want to politicize my conversation with you or the rest of the group. But 
9

acknowledging that, the real issue is — is will that not allow you to be fair to — let’s say 

if an officer gets on the stand?” Prospective Juror No. 1 answered: “I feel like I could be 

fair.” 

Defense counsel then asked if there was anything else she thought the court and 

parties should know. Prospective Juror No. 1 answered: “I would say that just recently I 

was at — not participating but just observing a demonstration. And there was — and I’m 

sure it was probably their job, but there was just a standoffish type of environment 

between the people who were demonstrating and the officers. And they just — they 

didn’t seem approachable. And like I say, I wasn’t participating. I was only observing. 

But even from an — from my perspective, they just seemed not . . . approachable.” 

Defense counsel asked whether she would be less likely to believe a police officer’s 

testimony if the officer “appear[ed] standoffish on the stand.” She responded: “I may 

think that I might not like him just on a first appearance type of thing, but that doesn’t 

mean that I would think that he wouldn’t be credible or believable.” 

In response to these answers, defense counsel stated: “It sounds like you’re 

guarded about law enforcement as it relates to your young people in your life, the four 

young African-American males.” Prospective Juror No. 1 responded: “Concerned more 

than guarded, yes.” Following up, defense counsel asked: “So my client is AfricanAmerican and he appears to be young. Is that going to — everything that we’ve just kind 

of talked about, do you think you would be swayed to be more sympathetic to 

[defendant]?” She answered: “Probably, because he’s probably about my children’s 

age. So it’s possible.” Defense counsel responded, “And I appreciate that. That’s why 

we’re here. We’re trying to — this may not be the best trial for you, right, because of 

everything. And that’s fine. So that’s the question for you. Counsel then asked: “If 

everything was equal, at the end of this trial, let’s just say that, and the evidence and the 

presentation and all that sort of thing, is the fact that he reminds you of your boys going 

to sway you to vote our direction and that being the only reason that you would vote for 
10

us?” Prospective Juror No. 1 answered: “All things being equal, I can’t say that it would 

sway me, but it would be something that I would consider.” (Italics added.)

Defense counsel thanked Juror No. 1 for her answers and then asked the panel if 

anyone else had similar concerns. Prospective Juror No. 5 responded: “I would have the 

same feelings just — and concern.” Defense counsel responded that having those 

concerns was fine, but asked: “Is that going to keep you from being fair to [the 

prosecutor] in her presentation, to the witnesses that she puts on, will that sway your 

opinion of that evidence at all towards my presentation, my evidence, with [defendant] 

just sitting there?” She answered: “I don’t think that it will.” 

During the prosecution’s voir dire, the prosecutor picked up this line of 

questioning, telling the panel: “Something that [Prospective Juror No. 1] said. She 

brought up something that is very political in the current society right now. A young 

[B]lack male. We are not blind. We know that [defendant] — what his race is. You can 

also kind of guess about how old he may be. And she was honest enough to say she has 

some concern. I believe [Prospective Juror No. 5] said she also had some concerns.” 

The prosecutor then asked if anyone else felt the same. 

Prospective Juror No. 9 answered: “I do. Yes.” She explained: “Just because the 

defendant also is about — around — probably around the same age as my half-brother. 

And also, too, I have concerns as well too about the stuff that’s going on right now, being 

able to be swayed one way or the other.” The prosecutor asked: “Do you feel that that 

would enter into your deliberations if you were to sit as a juror?” She responded: “I do 

believe so. Yes.” The prosecutor followed up: “If the defendant was of a different race 

or ethnic background, would you have those same concerns?” Prospective Juror No. 9

answered: “Probably not.” (Italics added.) 

The prosecutor then asked the same question of Prospective Juror No. 5. She said 

she would have similar concerns about “police brutality in the community” if defendant 

was Hispanic, or any race or ethnicity other than White, but not if defendant was White. 
11

Turning to Prospective Juror No. 1, the prosecutor asked: “You said that if you 

were chosen as a juror and you were sitting in the jury deliberation room, that that might 

enter into your deliberations. You might be swayed. [¶] What if the defendant were of a 

different race or ethnic background? Or specifically, let’s say if the defendant were 

[W]hite.” Prospective Juror No. 1 answered: “For me personally, it would be different 

because I wouldn’t be able — I wouldn’t as easily be able to identify with that, someone 

who was [W]hite, reminding me of my children, as I am with — in this current situation.

[¶] So it would still have an impact because I would see it as a young life. But I 

wouldn’t see — I wouldn’t as easily — I wouldn’t be able to as easily visualize my child 

in that situation.” (Italics added.) The prosecutor followed up with, “So because you 

have children who may be of similar age, that’s what your concern is?” Prospective 

Juror No. 1 replied: That’s part of it, yes.” (Italics added.) 

The prosecutor challenged all three prospective jurors for cause based on their 

statements regarding what the prosecutor referred to as “the current state of affairs as 

relates to law enforcement and the perception about interactions with African-American 

males.” 

Defense counsel responded, “all three of those persons are African-American or of 

African descent,” and argued: “I think that people expressing their political concerns in 

an honest manner, precluding them from being on a jury or — or participating in jury 

service appears to be very dangerous. In other words, if you can’t agree with law 

enforcement or like law enforcement to some extent, because there’s been some 

perceived bad interactions with your racial group or your group, then you’re precluded 

from participating in the justice system. That’s how I immediately perceived it.” 

Defense counsel then specifically addressed Prospective Juror No. 1, arguing the 

potential for her to relate more with defendant because his race and age were similar to 

her own sons and stepsons would not support a challenge for cause. Turning to 

Prospective Juror No. 5, counsel argued there was even less support for a challenge for 
12

cause with respect to her because “she stated she could be fair and it wouldn’t be an 

issue.” Counsel also opposed removing Prospective Juror No. 9 just because she 

expressed concerns about law enforcement abusing their power in relation to young men 

of color. 

After hearing additional arguments from the prosecutor, the trial court excused 

Prospective Juror No 1, but not No. 5: “The Court finds sufficient basis to excuse Juror 

Number One for cause. The Court finds that she has expressed a potential bias and an 

inability to be impartial as relates to her duties as a selected juror. So Juror Number One 

is excused for cause. [¶] As relates to Juror Number Five, I agree with [the prosecutor’s] 

representation in terms of Juror Number Five’s characterization about having concern 

about anybody who would be of color. However, she did indicate that she would not be 

swayed. And so I do find thus far she has been able to demonstrate that she would be 

able to keep extraneous matters outside of the jury deliberation room should she be 

selected. So that one is denied.” 

As for Prospective Juror No. 9, the trial court brought her back into the courtroom 

for further questioning. She had responded to this issue only during the prosecution’s 

voir dire, and defense counsel requested “further interaction” with her. The court 

questioned her first: “I wanted to take just a couple of moments to follow up on certain 

questions and answers that you gave. One question in particular was relative to have [sic]

some thoughts about [defendant] being the same age and race as your half-brother . . . 

And indicating it would enter into your mind during deliberations.” Prospective Juror 

No. 9 responded: “Yes, it would.” The court then asked: So my question for you is:

Does that mean you would not be able to limit your deliberations to only what was 

presented in this courtroom, or would you be considering other facts and circumstances, 

including the presentation of [defendant] and how he may appear to be like your halfbrother? Do you think you can separate the two and focus deliberations only on what’s 

presented in this courtroom, or do you think otherwise?” She answered: “I think 
13

otherwise.” In response to follow-up questioning, Prospective Juror No. 9 also stated: “I 

would feel uncomfortable knowing that [defendant’s] life would rest on my decision and 

what the jurors say, and I don’t think I could live with that.” (Italics added.)

Defense counsel was then permitted to follow up. He asked: “I’m just going to be 

blunt. You don’t want to be part — if you had to convict [defendant], you don’t want to 

be part of that process?” Prospective Juror No. 9 responded: “That is correct. Yes.”

(Italics added.) 

The trial court ultimately excused Prospective Juror No. 9 for cause. 

B. Analysis

On appeal, defendant asserts that because African-Americans have an unfavorable 

opinion about the treatment of African-Americans in the criminal justice system and will 

sympathize with African-American men being prosecuted, excluding African-American 

prospective jurors who express such sympathy results in a nonrepresentative jury. 

1. Challenges for Cause and Standard of Review

A prospective juror may be excused for cause based on actual bias. (Code Civ. 

Proc. § 225, subd. (b)(1).) Actual bias includes: “the existence of a state of mind on the 

part of the juror in reference to the case, or to any of the parties, which will prevent the 

juror from acting with entire impartiality, and without prejudice to the substantial rights 

of any party.” (Code Civ. Proc. § 225, subd. (b)(1)(C), italics added; People v. Horning

(2004) 34 Cal.4th 871, 898.) 

“ ‘[W]hat constitutes “actual bias” of a juror varies according to the circumstances 

of the case.’ ” (In re Manriquez (2018) 5 Cal.5th 785, 799, quoting People v. Nesler

(1997) 16 Cal.4th 561, 580 (Nesler).) The Attorney General points out the California 

Supreme Court has noted there is no particular constitutional test guiding what constitutes 

impartiality. He points to the following observation of our state’s high court: “[i]n 

assessing whether a juror is ‘impartial’ for federal constitutional purposes, the United 

States Supreme Court has stated: ‘Impartiality is not a technical conception. It is a state 
14

of mind. For the ascertainment of this mental attitude of appropriate indifference, the 

Constitution lays down no particular tests and procedure is not chained to any ancient and 

artificial formula.’ ” (Nesler, at p. 580, quoting United States v. Wood (1936) 299 U.S. 

123, 145-146 [81 L.Ed. 78].) But much has transpired since our high court’s 

acknowledgment in Nesler in 1997 of the Wood court’s observation from 1936 about 

there being no particular constitutional test. In the context of the selection of jurors in 

death penalty cases, a well-settled constitutional standard has evolved, which seems 

equally applicable in non-capital cases: a juror may be constitutionally excused for cause 

if the juror’s views would “ ‘prevent or substantially impair’ the performance of the

juror’s duties as defined by the court’s instructions and the juror’s oath.” (People v. 

Armstrong (2019) 6 Cal.5th 735, 750 (Armstrong), citing Wainwright v. Witt (1985) 469 

U.S. 412 [83 L.Ed.2d 841]and Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 

776] (Witherspoon).) The duties of a juror include the duty to set aside personal feelings 

and opinions and decide the case based solely on the evidence and instructions provided 

by the court. (Nesler, at pp. 580-581, citing Irvin v. Dowd (1961) 366 U.S. 717, 722-723; 

See also CALCRIM No. 200.) And one of the standard instructions given here and 

provided to all jurors in criminal cases contains the well-settled admonition not to let bias 

or sympathy influence their decision. (CALCRIM Nos. 101, 200; See also People v. 

Hawthorne (1992) 4 Cal.4th 43.)

Ultimately, assessing juror qualifications falls within the trial court’s broad 

discretion, and on appeal, reviewing courts “ ‘will uphold the trial court’s decision if it is 

fairly supported by the record, and accept as binding the trial court’s determination as to 

the prospective juror’s true state of mind when the prospective juror has given conflicting 

or ambiguous statements.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 669.) In other 

words, “ ‘ “ ‘[o]n review of a trial court’s ruling, if the prospective juror’s statements are 

equivocal or conflicting, that court’s determination of the person’s state of mind is 

binding.’ ” ’ ” (People v. Clark (2011) 52 Cal.4th 856, 895 (Clark); see also, People v. 
15

Soloman (2010) 49 Cal.4th 792, 830 (Soloman); People v. Weaver (2001) 26 Cal.4th 876, 

910 (Weaver).) We afford this deference to trial courts out of recognition “ ‘that a trial 

judge who observes and speaks with a prospective juror and hears that person’s responses 

(noting, among other things, the person’s tone of voice, apparent level of confidence, and 

demeanor), gleans valuable information that simply does not appear on the record.’ ” 

(People v. Avila (2006) 38 Cal.4th 491, 529 (Avila); See also Uttecht v. Brown (2007)

551 U.S. 1, 9 [167 L.Ed.2d 1014].)

2. Defendant’s Constitutional Challenge

“[T]he right to trial by a jury drawn from a representative cross-section of the 

community is guaranteed equally and independently by the Sixth Amendment to the 

federal Constitution and by article I, section 16, of the California Constitution.” (People

v. Wheeler (1978) 22 Cal.3d 258, 272 (Wheeler) [unconstitutional use of peremptory 

challenges], reversed on other grounds, Johnson v. California (2005) 545 U.S. 162 [162 

L.Ed.2d 129]; see also People v. Burgener (2003) 29 Cal.4th 833, 855 [constitutional 

challenge to the jury pool].) “The American tradition of trial by jury, considered in 

connection with either criminal or civil proceedings, necessarily contemplates an 

impartial jury drawn from a cross-section of the community. [Citations.] This does not 

mean, of course, that every jury must contain representatives of all the economic, social, 

religious, racial, political and geographical groups of the community; frequently such 

complete representation would be impossible. But it does mean that prospective jurors 

shall be selected by court officials without systematic and intentional exclusion of any of 

these groups.” (Thiel v. Southern Pac. Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181]

(Thiel).) Defendant cites Thiel in making the claim that the trial court’s “procedure . . . 

rendered [defendant’s] jury non-representative by systematically excluding a cognizable 

class from jury service.” 

In Thiel, the representative cross-section mandate was violated, and reversal was 

required, where the clerk of the court and the jury commissioner “deliberately and 
16

intentionally excluded from the jury lists all persons who work for a daily wage.” (Thiel, 

supra, 328 U.S. at p. 221.) The vice in Theil was a “blanket exclusion” of all daily wage 

earners based solely on the assumption that all such prospective jurors would claim 

financial hardship. (Id. at p. 224.) The high court recognized, however, there is no 

constitutional violation when a judge excuses a daily wage earner after determining that 

individual has a financial hardship. (Ibid.) 

There is, similarly, no constitutional violation where a court determines a 

prospective juror cannot be impartial, for whatever reason. Under both the state and 

federal Constitutions, an accused is guaranteed the right to be tried by an impartial jury. 

(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) But there is no constitutional 

right to a jury consisting of jurors who are partial or biased in the accused’s favor.

Defendant, however, argues “the superior court’s procedure involved striking 

African-American jurors for cause if they said they might be influenced by their 

experiences and opinions regarding the harshness of the criminal justice system toward 

African-Americans.” Such prospective jurors form a cognizable group, he maintains, 

because “many African-Americans . . . believe the criminal justice system treats AfricanAmericans too harshly.” Defendant reasons: “a procedure that strikes prospective jurors 

for cause based on such beliefs will necessarily result in striking many, if not most, 

African-American prospective jurors. Such a result is intolerable if the goal is to produce 

a racially and ideologically representative jury.” 

In making this argument, defendant relies primarily on a case from the District of 

Columbia Court of Appeals, Mason v. United States (2017) 170 A.3d 182 (Mason). 

While we agree with aspects of the Mason court’s decision, Mason is factually distinct 

and does not help defendant.

In Mason, in response to the trial court’s voir dire question about immediate 

family or close friends that had been arrested for, charged with, or convicted of a crime, a 

prospective juror stated her brother had such an experience in Texas. She said the family 
17

suspected it was the result of racial profiling, and he had been treated unfairly. (Mason, 

supra, 170 A.2d at p. 185.) When asked whether her views about her brother would 

affect her ability to be impartial in the case, she responded: “I mean I think I can be 

impartial. I mean I think it’s shaped my view of the world. But I don’t know the details 

of this case. I don’t think I would see my brother in it. His situation is different. But I 

definitely, that’s my experience with the system.” (Ibid., italics added.) When the 

prosecutor asked if she thought African-American men were treated unfairly in D.C., the 

juror responded she thought they were, and “things are tilted in the wrong direction.” On 

the prosecution’s motion, the trial court excused the prospective juror for cause. (Ibid.) 

Mason held this was error. (Id. at p. 187.) 

As defendant here points out, the court in Mason took note of a 2013 study 

indicating “68% of [African-Americans] believed that [they] are treated less fairly than 

[W]hites in the courts.” (Mason, supra, 170 A.3d at p. 185) The court also noted 

“concern about the racial fairness of the criminal-justice system” has been “repeatedly 

expressed” by “courts and other official bodies.”9 (Id. at p. 186.) It concluded the 

improper exclusion of a prospective juror solely because of such a belief required 

reversal, notwithstanding the general rule that reversal is not required for the erroneous 

excusal of a prospective juror so long as the jury ultimately seated is fair and impartial. 

(Id. at p. 188.) In so concluding, the court relied in part on Supreme Court authority 

requiring reversal of a judgment of death where “capital-sentencing jurors were 

9

 As Justice Liu recently noted, based on a more recent study by the Pew Research 

Center, “a substantial majority of Americans believe the criminal justice system treats 

Blacks less fairly than whites”— “84% of Black respondents, 63% of white respondents 

and 67% of all respondents in a survey of 6,637 adults.” (People v. Tripplett (2020) 48 

Cal.App.5th 655, 688-689, dis. statement regarding denial of review of Liu, J., citing 

Horowitz et al., Pew Research Center, Race in America 2019 (Apr. 9, 2019) pp. 11, 46.) 
18

erroneously disqualified on the basis of their views about the death penalty.” (Id. at 

p. 189; citing Witherspoon supra, 391 U.S. 510, 521-522.) 

The Mason court articulated a rule with which we agree: “Standing alone, the 

belief that the criminal-justice system is systemically unfair to blacks is not a basis to 

disqualify a juror.”

10 (Mason, supra, 170 A.3d at p. 187, italics added.) The Mason

court explained: “[T]hat belief is neither uncommon nor irrational. Moreover, there is no 

basis for an inference that potential jurors holding that belief are necessarily unable to be 

impartial. To the contrary, potential jurors who hold that belief might well be particularly 

attentive to making sure that they perform their function impartially.” (Id. at p. 187.) We 

agree with that as well. But we also agree with the Mason court’s observation: “It is 

possible that a potential juror who believes that the criminal-justice system is unfair to 

blacks might respond to that belief by having difficulty being impartial. Where a trial 

judge makes that finding based on an adequate record, the potential juror can 

appropriately be disqualified for cause.” (Id. at p. 187.) We conclude that is what 

happened here.

Prospective Juror No. 9 was unequivocal about her inability to be impartial. In 

addition to her general concerns about law enforcement, she indicated the fact that 

defendant reminded her of her half-brother would influence her decision making. When 

asked if her thoughts about defendant being the same age as her half-brother “would enter 

10

 We note this rule is consistent with new provisions concerning peremptory challenges 

in Assembly Bill 3070 (Stats. 2020, ch. 318, §§ 1-3), enacted in 2020 and operational 

January 1, 2022. Under Civil Code of Procedure section 231.7, subdivision (e)(1)-(3),

“[e]xpressing a distrust of or having a negative experience with law enforcement or the 

criminal legal system,” “[e]xpressing a belief that law enforcement officers engage in 

racial profiling or that criminal laws have been enforced in a discriminatory manner,” and 

“[h]aving a close relationship with people who have been stopped, arrested, or convicted 

of a crime” are presumptively invalid reasons for exercising a peremptory challenge 

against a prospective juror who is a member of a cognizable group.
19

into her mind during deliberations,” she responded: “Yes, it would.” The court sought to 

clarify: “Does that mean you would not be able to limit your deliberations to only what 

was presented in the courtroom, or would you be considering other facts and 

circumstances, including the presentation of [defendant] and how he may appear to be 

like your half-brother? Do you think you can separate the two and focus deliberations 

only on what’s presented in this courtroom, or do you think otherwise?” She responded: 

“I think otherwise.” In response to further questions, she stated: “I would feel 

uncomfortable knowing that [defendant’s] life would rest on my decision and what the 

jurors say, and I don’t think I could live with that.” And when asked, “if you had to 

convict [defendant], you don’t want to be part of that process?” Prospective Juror No. 9

responded: “That is correct. Yes.” These responses support the trial court’s conclusion 

that Prospective Juror No. 9 could not be impartial in this case. 

A second reason also supported the prosecutor challenge to Prospective Juror No. 

9 for cause: she stated she would not be able to look at graphic photographs. The 

prosecutor asked the panel about unpleasant photographs during the prosecution’s voir 

dire, and defense counsel asked about it when Prospective Juror No. 9 was brought back 

into the courtroom. Immediately after responding to defense counsel’s question, the trial 

court excused her.

11

 In short, sustaining the challenge as to Prospective Juror No. 9 was 

not a close call.

11

 During the prosecution’s voir dire, the prosecutor asked the panel whether any of them 

were concerned about looking at unpleasant or graphic photographs that would be part of 

the evidence the jury would be required to consider. After two other jurors expressed 

such a concern, Prospective Juror No. 9 responded: “The same. Pretty queasy when I 

look at gross stuff.” The prosecutor asked: “Understanding that you’re queasy, will you 

be able to follow your obligation to look at the evidence if that was part of the evidence?” 

Prospective Juror No. 9 answered: “Probably not, no.” When she was brought back into 

the courtroom for additional voir dire, after asking about her not wanting to be part of the 

process of convicting defendant, defense counsel asked: “There are going to be 

photographs — or there will be photographs of something that may be shocking. [¶] 
20

Prospective Juror No. 1 provided more equivocal responses regarding her ability 

to be impartial. After expressing “a concern with law enforcement in general,” adding 

“particularly because I have two young adult sons and two young adult stepsons,” she 

nevertheless stated that she felt she “could be fair” to any police officer who took the 

witness stand. She then described her experience at a demonstration, where police 

officers appeared “standoffish.” But she indicated this would not make her less likely to 

believe an officer’s testimony. Still, she acknowledged her concern for the young 

African-American men in her family regarding their interactions with law enforcement 

and further acknowledged she would “probably” be swayed to be more sympathetic to 

defendant because, as she put it, “he’s probably about my children’s age.” 

At this point, after acknowledging “this may not be the best trial for you,” defense 

counsel asked: “If everything was equal, at the end of this trial ... is the fact that he 

reminds you of your boys going to sway you to vote our direction and that being the only 

reason that you would vote for us?” Prospective Juror No. 1 answered: “All things being 

equal, I can’t say that it would sway me, but it would be something that I would 

consider.” (Italics added.) The prosecutor later asked: “You said that if you were 

chosen as a juror and you were sitting in the jury deliberation room, that that might enter 

into your deliberations. You might be swayed. [¶] What if the defendant were of a 

different race or ethnic background? Or specifically, let’s say if the defendant were 

[W]hite.” Prospective Juror No. 1 answered: “For me personally, it would be different 

because I wouldn’t be able — I wouldn’t as easily be able to identify with that, someone 

who was [W]hite, reminding me of my children, as I am with — in this current situation.

[¶] So it would still have an impact because I would see it as a young life. But I 

And is it your position that you can’t even for 30 seconds look at them?” Prospective 

Juror No. 9 responded: “No.” Counsel began to follow-up: “—digest them and then 

move on?” She responded: “No, not at all.” It was then that the trial court excused Juror 

No. 9. 
21

wouldn’t see — I wouldn’t as easily — I wouldn’t be able to as easily visualize my child 

in that situation.” (Italics added.) When the prosecutor followed up with, “So because 

you have children who may be of a similar age, that’s what your concern is?” She 

replied: “That’s part of it, yes.” (Italics added.) 

Prospective Juror No. 1 did not explicitly state that she would be swayed to vote to 

acquit defendant either because of her concerns about the treatment of young men of 

color in the criminal justice system or because defendant reminded her of her children, 

but she did state the latter reason would “probably” sway her to be more sympathetic 

towards him. And as noted, she expressly stated the fact defendant reminded her of her 

family members “would be something that I would consider” and later stated the fact that 

she had children of a similar age was “part of” her concern. A decision based on such 

considerations would not be one based solely on the evidence and instructions. Indeed, 

such a decision would not be consistent with the instruction not to be influenced by bias 

or sympathy in decision making. (CALCRIM Nos. 101, 200)

On this record, we cannot say the trial court abused its discretion in excusing 

Prospective Juror No. 1. At no point did Prospective Juror No. 1 assure the court her 

ultimate decision would not be swayed by sympathy or her bias toward people who 

reminded her of her loved ones. Indeed, Prospective Juror No. 1 stands in contrast to 

Prospective Juror No. 5, the African-American the trial court refused to excuse for cause. 

When asked whether her general concerns about how African-Americans are treated by 

the justice system would keep her from being fair to the prosecutor or sway her opinion 

about the evidence towards defendant, Prospective Juror No. 5 said, “I don’t think that it 

will.” The trial court, being present in the courtroom and observing Prospective Juror 

No. 5’s demeanor and presentation when she gave that response, must have credited the 

juror’s assessment of her state of mind, because the court denied the prosecution’s 

challenge for cause. 
22

Likewise, the trial court could also observe Juror No. 1’s demeanor and 

presentation. Additionally, the court heard her tone of voice and was in a position to 

glean her level of confidence from what the court observed and heard. (Avila, supra, 38 

Cal.4th at p. 529.) With these advantages over us, the trial court found that Juror No. 1 

could not impartial. We defer to the court’s determination under these circumstances, 

because the trial court is in the best position to determine the potential juror’s true state of 

mind. (Uttecht, supra, 551 U.S. at pp. 7-10 [“Deference is owed regardless of whether 

the trial court engages in explicit analysis regarding substantial impairment; even the 

granting of a motion to excuse for cause constitutes an implicit finding of bias”]; Clark, 

supra, 52 Cal.4th at p. 895; Avila, at p. 529.) And, as our high court’s well-settled rule 

mandates, if the prospective juror’s statements are ambiguous, equivocal or conflicting, 

the trial court’s determination of the prospective juror’s state of mind is binding. (Clark, 

at p. 895; Soloman, supra, 49 Cal.4th at p. 830; Ledesma, supra, 39 Cal.4th at p. 668;

Weaver, supra, 26 Cal.4th at p. 910.)

Nevertheless, it bears noting that, “[o]ther than voting, serving on a jury is the 

most substantial opportunity that most citizens have to participate in the democratic 

process.” (Flowers v. Mississippi (2019) ___ U.S. ___ , ___; 139 S.Ct. 2228, 2238 [204

L.Ed.2d 638] [addressing discriminatory peremptory challenges].) African-American 

prospective jurors have an equal protection right not to be excused from jury service 

based on the assumption they will be biased towards an African-American defendant. 

(Foster v. Chatman (2016) 136 S.Ct. 1737, 1741-1742 [same]; Batson v. Kentucky (1986) 

476 U.S. 79, 97-98 [90 L.Ed.2d 69] [same].) Trial courts should be careful to ensure that

jurors’ equal protection rights to participate in our democracy are not violated. Still, 

when a prospective juror’s state of mind would prevent or substantially impair the 

performance of his or her duties as a juror in accordance with the instructions and oath

(see Armstrong, supra, 6 Cal.5th at p. 750; Clark, supra, 52 Cal.4th at p. 895), the juror 

may be constitutionally excused for cause. The record here supports a finding that 
23

Prospective Jurors No. 1 and No. 9 were substantially impaired by their bias and 

sympathy.12 Giving the deference to the trial court our high court has said we must give, 

we conclude the trial court did not abuse its discretion by excusing them, and defendant’s 

constitutional right to a jury drawn from a representative cross-section of the community 

was not violated.

II. Dismissal of a Seated Juror During Trial

Defendant contends the trial court prejudicially abused its discretion in 

discharging a sitting juror for dishonesty during trial. We conclude the trial court erred

because the juror’s inability to perform his duty does not appear in the record as a 

demonstrable reality. The error, however, was harmless. 

A. Additional Background

On the tenth day of trial, before bringing in the jury for the afternoon session, the 

trial court stated that an interaction between a juror and a colleague of defense counsel 

needed to be placed on the record. That colleague, attorney Steven Taxman, was present 

in the courtroom. Taxman explained that he went to a coffee shop near the courthouse 

early that morning to do some work before going to court. A person Taxman later 

realized was Juror No. 2 was also doing some work at the coffee shop.

13 Taxman 

described the interaction to the trial court. 

Taxman said he sneezed and the man said, “ ‘God bless you.’ ” Taxman said he

thanked the man and told the court the following transpired: “I just chatted with him for 

12

 Likewise, the record also supports a finding under Code of Civil Procedure section 

225, subdivision (b)(1)(C), that Prospective Jurors No. 1 and No. 9 had a “state of mind”

which would have prevented them “from acting with entire impartiality, and without 

prejudice to the substantial rights of any party.” (Italics added.) 

13

 Taxman explained that he realized the person was Juror No. 2 when he came to court

later in the day and saw him coming out of one of the courtrooms with the rest of the 

jury. He then notified defense counsel about the interaction. 
24

a second. And I said, ‘You like working here? It’s a great place to work.’ And he goes, 

‘Oh, yeah, I’m just working here because I’m on jury duty.’ And I’m like, ‘Oh.’ And I 

didn’t identify myself as an attorney. I said, ‘Well, I hope you have a really nice 

experience doing that. It was nice talking with you.’ And he said, ‘Well, yeah, it’s nice, 

but I’m looking forward to it being over.’ And that was it.” (Italics added.) Taxman said 

once he heard the man was a juror, there was no reason to talk to him. When Taxman left

the coffee shop, he told the man, “ ‘Have a nice day.’ ” 

The court asked Taxman follow-up questions about his chat with the juror. 

Changing his rendition slightly, Taxman said: “I asked him if he liked working here 

because he was working on his computer and so was I. So we were both kind of working 

away. And then that was the extent of the discussion until I sneezed. I sneezed. And he 

said, ‘God bless you.’ And I said, “Thank you.” And I said, ‘Do you like working here?’ 

And that’s when he told me what he did and the reason why he was working there was 

because he was on jury duty. And then when I heard that, I didn’t talk to him any more 

about anything, other than I just said, ‘I hope you enjoy your experience. It should be a 

rewarding experience.’ And he said ‘I’m looking forward to it being over.’ ” (Italics 

added.) 

The trial court noted that many jurors “for a variety of reasons look forward to 

their jury service being over” and asked for comments from the prosecutor and defense 

counsel. The prosecutor asked to have Juror No. 2 discharged noting “two occasions 

where Mr. Taxman approached [defense counsel] while the jury was [in the courtroom]” 

and engaged in “friendly interaction,” which would have indicated to the jury “that they 

were either friendly, or associated, or something to that effect.”14 In response, defense 

14

 The prosecutor said her request to discharge Juror No. 2 was being made “In 

conjunction with everything that happened this morning.” At the beginning of the 

morning session, Juror No. 2 volunteered to the court that he was acquainted with S.S.’s 
25

counsel acknowledged, “Mr. Taxman did come and approach me — I think maybe it was 

upwards of three times — while I was at counsel’s table. And I do remember him putting 

his hand on my shoulder once. Whether or not the jurors saw something, I don’t know.” 

Defense counsel argued the “coincidental” interaction between Taxman and Juror No. 2

at the coffee shop, coupled with the possibility jurors saw Taxman and defense counsel 

were friendly colleagues, while “a little awkward,” did not support removal of the juror. 

The trial court decided to hear from Juror No. 2 and asked counsel if there was any 

objection. Both the prosecutor and defense counsel said they had none. Defense counsel 

noted Juror No. 2 might not even remember the interaction. 

The trial court asked the juror: “I understand you had a brief interaction with 

some person over at the cafe, restaurant, little deli over on G Street this morning. Do you 

recall that, sir?” Juror No. 2 answered: “Nothing other than ‘hello’ or ordering my 

food.” The trial court then asked: “Do you recall making any comments to any of the 

other persons inside the [coffee shop] about looking forward to this trial being over?” 

(Italics added.) Juror No. 2 answered: “No.” The trial court then asked: “Do you recall 

interacting with another male patron who was working on his computer and may have 

sneezed? To that question, Juror No. 2 responded: “I do.” Asked what he recalled about 

that, Juror No. 2 explained: “I think we were both on our laptops. And he said it’s a 

good place to get work done. And I said, ‘Yeah, I come here in the morning.’ I’ve been 

father from their work in separate non-profits. He explained he did not know her father 

personally, their non-profits had only interacted three times, and he had not recognized 

S.S.’s name from the witness list because when the name was read, it had been 

mispronounced. He said when he realized he knew S.S.’s father, his reaction was “I gotta 

tell somebody.” He, however, indicated his acquaintance would not affect how he 

evaluated S.S.’s testimony. The prosecutor stated a preference to excuse Juror No. 2, but 

acknowledged the matter did not rise to the level of cause. The court stated: “I found 

[Juror No. 2’s] responses to be candid and thoughtful” and I don’t think it rises to the 

level of cause.” It then ruled: “I find that he will be able to faithfully perform his duties, 

assess the facts, and apply the law as I give it to him. So I’m going to allow him to 

remain.”
26

there every morning to get my work done before I go to the courthouse.” Asked whether 

he recalled “anything else being said,” the juror answered: “No.” 

After questions about whether he was wearing his juror badge, the court asked:

“Anything else that you recall about that interaction, that exchange, what he may have 

said to you or what you might have said to him, sir? The juror responded: “No. I had 

my headphones on. And I was — I actually wasn’t on the phone but I was — I leave the 

headphones on so people don’t talk to me. And I remember he said something and I took 

the headphones off and we talked about it being a good place to get work done.” The 

court asked, “Do you remember how the conversation ended, parting words?” (Italics 

added.) Juror No. 2 responded: “I said ‘have a good rest of your day.’ ” The court 

concluded, “And that’s all you recall?” to which the juror responded, “That’s all I recall.” 

Neither counsel had additional questions.

After Juror No. 2 was excused from the courtroom, the trial court asked for 

additional comments from counsel. The prosecutor responded: “What concerns me is

that we have a differing account. Mr. Taxman represented that he specifically said that 

he was looking forward to the trial being over. I’m not certain why he would make that 

up. So I would tend to believe him. I can’t see why he would draw that and bring this up 

as an issue [Juror No. 2] is denying. That was a direct question from the Court, and he 

specifically denied that. That concerns me.” The trial court asked the prosecutor: “What 

if [Juror No. 2] denied it because it was so insignificant he simply didn’t recall it?” The 

prosecutor expressed disbelief of that conclusion and pointed to the fact Juror No. 2 

remembered other particulars of the conversation — the sneezing, being on his laptop, 

the conversation about the coffee shop being a good place to work and having his 

headphones on. The prosecutor added: “But the one thing that he should not be doing is 

talking about anything regarding — jury duty is the one thing he says he does not 

remember.”
27

The trial court then heard from defense counsel: “It just appeared to me, for what 

it’s worth, that he was a little startled and had a little bit of memory recall problems at the 

beginning of your conversation — with you being the Court — in what seemed innocent, 

and he slowly started to recall the more that came out. [¶] I’m submitting, your Honor. I 

think it’s harmless.” Neither the court, nor the prosecutor disagreed with counsel’s 

observation regarding the juror’s gradual memory recall.

After a brief recess, the trial court stated it probably should have taken Taxman’s 

statement under oath and perceived the need to do that. The court then shared its 

tentative thinking, stating there was no reason to believe Taxman was lying about his 

interaction with the juror, “[a]nd if that’s the case, then I have a record that suggests this 

juror is not being truthful. And the Court, I think, is forced into a scenario where there 

would be cause to excuse him.” (Italics added.)

Later, when Taxman returned to the courthouse, he was placed under oath. The 

court asked Taxman to “reiterate [his] interaction” with Juror No. 2. Taxman gave a 

slightly different rendition this time. He stated after he got to the coffee shop, he went to 

a table where Juror No. 2 was seated. Taxman explained: “He had all his things out on 

the table, doing computer work, and so was I. So I was doing computer work. He was 

doing computer work. I was minding my own business. He was minding his own 

business. I didn’t see a juror badge. [¶] So I sneezed. And he said, “ ‘God bless you.’ ” 

Taxman said he was impressed that a stranger would say that so he felt obligated to talk 

to him. Taxman continued: “And I said, ‘Oh, do you like working here, too?’ And he 

goes, ‘Yeah, I like working here, but I’m on jury duty.’ He said ‘jury duty.’ And I said to 

him, ‘Oh, are you on a panel? Are they selecting, or are you on a case?” And he said, 

‘I’m on a case.’ And when I heard him say, ‘I’m on a case,’ I’m like — I cut off the 

conversation. I didn’t want to have anything more to say to him and I didn’t say 

anything. I think I went back to computing. And I said something like, ‘Well, I hope you 

really enjoy your experience. It should be very rewarding.’ And he said something like, 
28

‘Yeah, I’m looking forward to it being over.’ And I said, ‘Have a nice day. It was nice 

talking to you.’ And then I left and went to court. And that was it.” (Italics added.) 

After Taxman was excused, the court ruled, stating: “Based on the information 

provided by Mr. Taxman, particularly under oath, this Court finds that there are 

questions regarding the truthfulness of Juror Number Two. The Court is going to thank 

and excuse Juror Number Two from the jury.” (Italics added.) 

B. Analysis

1. Excusing Seated Jurors for Cause

Penal Code section 1089 authorizes a trial court to discharge a seated juror, “If at 

any time, whether before or after the final submission of the case to the jury, a juror dies 

or becomes ill, or upon other good cause shown to the court is found to be unable to 

perform his or her duty.” (Italics added.) Thus, before excusing a seated juror, the trial 

court must find there is good cause to believe the juror is unable to perform his or her 

duty.

“[A]n appellate court’s review of the decision to remove a seated juror is not

conducted under the typical abuse of discretion standard, but rather under the 

‘demonstrable reality’ test.” (People v. Fuiava (2012) 53 Cal.4th 662, 711.) The 

demonstrable reality test “requires a ‘stronger evidentiary showing than mere substantial 

evidence.’ ” (People v. Wilson (2008) 44 Cal.4th 758, 821, citing People v. Cleveland

(2001) 25 Cal.4th 466, 488 (Cleveland), conc. opn. of Werdegar, J.) Our high court in 

Wilson emphasized: “ ‘To dispel any lingering uncertainty, we explicitly hold that the 

more stringent demonstrable reality standard is to be applied in review of juror removal 

cases. That heightened standard more fully reflects an appellate court’s obligation to 

protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased 

jury.’ ” (Wilson, at p. 821.)

In Armstrong, our high court further clarified the demonstrable reality test, 

contrasting it to the substantial evidence test: “ ‘A substantial evidence inquiry examines 
29

the record in the light most favorable to the judgment and upholds it if the record contains 

reasonable, credible evidence of solid value upon which a reasonable trier of fact could

have relied in reaching the conclusion in question. . . . [¶] The demonstrable reality test 

entails a more comprehensive and less deferential review. It requires a showing that the 

court as trier of fact did rely on evidence that, in light of the entire record, supports its 

conclusion that [good cause for removing the juror is] established. It is important to 

make clear that a reviewing court does not reweigh the evidence under either test. Under 

the demonstrable reality standard, however, the reviewing court must be confident that 

the trial court’s conclusion is manifestly supported by evidence on which the court 

actually relied. [¶] In reaching that conclusion, the reviewing panel will consider not just 

the evidence itself, but also the record of reasons the court provides.” (Armstrong, supra, 

1 Cal.5th at pp. 450-451.) 

We distill the following summary from our high court’s explanation of the 

demonstrable reality test set forth above: (1) The demonstrable reality test is a 

heightened standard requiring a stronger evidentiary showing than the substantial 

evidence test, which looks at the evidence in a light most favorable to the judgment; (2) 

however, like the substantial evidence test, reviewing courts do not reweigh the evidence; 

(3) but a reviewing court must look only to the evidence upon which the trial court 

actually relied in determining whether the trial court’s decision is supported by the 

evidence; thus reviewing courts may not base their decision on evidence upon which the 

trial court did not actually rely; (4) in addition to the evidence upon which the trial court 

relied, a reviewing court must consider the reasons the trial court gives for its ruling; (5) 

because a reviewing court must consider “the record of the reasons the trial court 

provides,” reviewing courts cannot imply findings the trial court did not expressly make; 

and (6) because a reviewing court cannot imply findings, the trial court should expressly 

state its reasons for discharging the juror, including demeanor-based reasons and 

credibility findings. As to this last point, our high court said some time ago: “A trial
30

court facilitates review when it expressly sets out its analysis of the evidence, why it 

reposed greater weight on some part of it and less on another, and the basis of its ultimate 

conclusion . . . In taking the serious step of removing a . . . juror the court must be 

mindful of its duty to provide a record that supports its decision by a demonstrable 

reality.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1053 [removal of sitting juror for 

deliberation misconduct].) 

2. Propriety of the Trial Court’s Investigation

Defendant first argues the trial court abused its discretion by inquiring into Juror 

No. 2’s ability to continue to serve on the jury because “a hearing is required only where 

the court possesses information which, if proven to be true, would constitute ‘good cause’ 

to doubt a juror’s ability to perform his [or her] duties,” citing People v. Ray (1996) 13 

Cal.4th 313, 343 (Ray). According to defendant, Taxman’s summary of his coffee shop 

conversation with Juror No. 2 was insufficient to justify the juror’s removal and thus, the 

court’s investigation was improper. 

This argument is forfeited. Defense counsel was asked whether he objected to the 

trial court questioning Juror No. 2 and answered: “No.” The failure to object forfeits the 

assertion that the questioning itself amounted to a prejudicial abuse of discretion. (See 

People v. Wilson (2008) 43 Cal.4th 1, 25, abrogated on another point as stated in People 

v. Johnson (2018) 6 Cal.5th 541, 587.) 

And even if preserved, we would conclude the trial court did not err by conducting 

an investigation. As our high court noted in Ray, “[t]he decision whether to investigate 

the possibility of juror bias, incompetence, or misconduct . . . rests within the sound 

discretion of the trial court.” (Ray, supra, 13 Cal.4th at p. 343.) And as the trial court 

noted here, jurors might look forward to their jury duty being over for a “variety of 

reasons.” It was within the court’s discretion to determine whether Juror No. 2 had 

outside life circumstances that might make it difficult to perform his duty such that there 

would be good cause to discharge him under section 1089. 
31

But that is not the direction the investigation took, and defendant has not forfeited 

his assertion that the trial court abused its discretion in discharging Juror No. 2, so we 

turn to that ruling.

3. Demonstrable Reality Analysis

The Attorney General acknowledges that the demonstrable reality test applies 

here. He notes that a lack of candor during voir dire may lead to discharge of a juror 

under section 1089 when the false or misleading nature of voir dire statements comes to 

light during trial. (See People v. Johnson (1993) 6 Cal.4th 1, 22, abrogated on another 

point in People v. Rogers (2006) 39 Cal.4th 826, 879; In re Hitchings (1993) 6 Cal.4th 

97, 110-114 (Hitchings).) He further argues “[t]here is no reason to treat a juror’s 

untruthful answers given during a mid-trial hearing any differently.” 

On the contrary, there is good reason to treat this situation differently. As our high 

court explained in Hitchings, a prospective juror who conceals material facts or gives 

false answers during voir dire deprives both sides of the right to intelligently exercise forcause and peremptory challenges and undermines the integrity of the jury trial process. 

(Hitchings, supra, 6 Cal.4th at pp. 110-112.) That is not a concern in the instant context. 

Moreover, even in the context of voir dire statements, the law accounts for failure 

to recall and innocent mistakes. “[M]ere inadvertent or unintentional failures to disclose 

[during voir dire] are not accorded the same effect [as intentional concealment]. ‘[T]he 

proper test to be applied to unintentional “concealment” is whether the juror is 

sufficiently biased to constitute good cause for the court to find under [section 1089] that 

[the juror] is unable to perform his [or her] duty.’ ” (People v. McPeters (1992) 2 Cal.4th 

1148, 1175, superseded by statute on another point as stated in People v. Boyce (2014) 59 

Cal.4th 672, 707.)

Here, the purported failure to disclose related to a statement the juror made to a 

stranger about jury duty before court one morning. Contrary to the prosecutor’s 

statement to the trial court, and the trial court’s second question to Juror No. 2, the juror
32

never said he was looking forward to “the trial” being over. Juror No. 2 said he was 

looking forward to his “jury duty” being over. In his first rendition of the conversation, 

Taxman told the court Juror No. 2 said, “ ‘I’m on jury duty,’ ” to which Taxman replied, 

“ ‘Well, I hope you have a really nice experience doing that,” and Juror No. 2 responded, 

“ ‘Well, yeah, it’s nice, but I’m looking forward to it being over.’ ” Taxman told the 

court, “that was it.” (Italics added.) In his second and third renditions of the 

conversation, which were slightly different from the first, Taxman told the court that at 

some point after Juror No. 2 said he was on “jury duty,” he told the juror something like, 

“ ‘Well, I hope you really enjoy your experience. It should be very rewarding,’ ” to 

which Juror No. 2 “said something like, ‘Yeah, I’m looking forward to it being over.’ ” 

(Italics added.) In the context of Taxman’s renditions, the “it” in Juror No. 2’s statement 

referenced “jury duty.” Taxman never said Juror No. 2 stated he was looking forward to 

the “trial” being over. 

The nuance between “trial” and “jury duty” may seem unimportant, but it must be 

taken into account when evaluating Juror No. 2’s response to the trial court’s questions, 

which the Attorney General argues was dishonest. The second question the trial court 

asked Juror No. 2 was: “Do you recall making any comments to any of the other persons 

inside the [coffee shop] about looking forward to this trial being over?” (Italics added.) 

The evidence does not establish that his response of “No” was untrue. 

First, the questioning took place during the afternoon session, after Juror No. 2 had 

been focused on the morning’s testimony. And this particular question was posed before 

the trial court refreshed Juror No. 2’s recollection about the morning conversation in the 

coffee shop by providing some of the circumstances, namely the reference to the person 

working on his computer and the sneeze. Indeed, defense counsel predicted Juror No. 2 

might not remember the conversation and later told the court he thought Juror No. 2 was 

having “memory recall problems at the beginning,” that “seemed innocent” and that “he 

slowly started to recall the more.” There is no evidence in the record indicating the juror 
33

should have immediately remembered the conversation he had with Taxman when the 

court asked the first two questions. To the contrary, Juror No. 2 had been in a coffee 

shop, he had his headphones on, and was working on his computer — his usual morning 

routine during the trial — when he had an innocuous conversation with a stranger.15 It is 

not at all clear that Juror No. 2 truly did remember the conversation when the court asked 

him whether he recalled it in its first two questions. And innocent misrecollection is not 

concealment or dishonesty.

Second, even assuming Juror No. 2 recalled having a conversation with a stranger, 

we must look to what he was asked about it. In the trial court’s second question, he was 

asked whether he recalled making a statement “about looking forward to the trial being 

over,” but no evidence establishes that he ever made that statement. He made a comment 

about looking forward to his “jury duty” being over. Thus, if he did not make the 

statement he was asked about, there was no reason for him to recall it, and it was not 

untrue for him to say he did not recall it.

16

 Moreover, the trial court never asked Juror 

15

 Taxman himself called the conversation “very innocuous.” 

16

 The decisional law suggests precision in questioning jurors during voir dire is 

important and a juror does not commit voir dire concealment misconduct when questions 

are imprecise. (See People v. Majors (1998) 18 Cal.4th 385, 418-419 [juror did not 

commit voir dire concealment misconduct when he answered “no” to questionnaire 

question, “Are you or any close friend or relative associated with any federal, state or 

local law enforcement agency or other governmental office such as . . . the Department of 

Corrections,” because the people the juror later referred to as “buddies” who worked for 

Corrections were actually only acquaintances and not “close friends”; juror did not 

commit misconduct when he answered “no” to question, “Do you know anyone whom 

you believe to be a drug user or seller?” because although his wife sold cocaine when she 

was a teenager, he did not know her at the time and he understood the question to related 

to present use or sale of drugs]; People v. Dyer (1988) 45 Cal.3d 26, 58-59 [juror did not 

commit misconduct by giving answer to an ambiguous question she believed to be true]; 

People v. Blackwell (1987) 191 Cal.App.3d 925, 929 [voir dire concealment misconduct 

turns in part on whether the question posed was unambiguous; voir dire questions must 

be “sufficiently specific to elicit the information which is not disclosed, or as to which a 
34

No. 2 whether he, in fact, was looking forward to the trial or his jury duty being over. 

Such a question would have revealed how the juror was feeling as opposed to his 

memory of what had been said and could have resulted in an answer that might justify his 

dismissal under section 1089. Indeed, the court posed no questions that would have 

revealed if Juror No. 2 might have been distracted by outside life circumstances that 

might cause him to be unfocused during the testimony or deliberate more quickly than he 

might have otherwise.

As noted, the prosecution argued in the trial court that deception could be inferred 

from Juror No. 2’s ability to remember conversation particulars but failed to recall the 

statement he is alleged to have made. The Attorney General makes the same argument 

on appeal. But the trial court did not base its decision on this inference, and under the 

demonstrable reality test, we do not evaluate the evidence in the light most favorable to 

the trial court’s decision and accept all inferences that support that decision.17 

(Armstrong, supra, 1 Cal.5th at pp. 450-451) Rather, our focus must be on the evidence 

false answer is later shown to have been given”]; Cabe v. Superior Court (1998) 63 

Cal.App.4th 732 [partially responsive, but “literally true” response to a compound 

question cannot serve as the basis for a perjury charge against a juror related to alleged 

voir dire concealment].) Just as precision is important in posing voir dire questions, 

precision is also important in posing juror misconduct investigation questions.

17

 Moreover, the record more persuasively demonstrates that Juror No. 2 did not 

immediately recall the conversation in the coffee shop earlier that day, and it was the 

court’s reminder of those details in its third question that refreshed his recollection. 

Furthermore, the record demonstrates Taxman’s recall was not perfect either, as his three 

renditions were not one hundred percent consistent. Juror No. 2 was given only one 

opportunity to explain what happened that morning. In conducting a misconduct 

investigation regarding conversations, trial courts must be sensitive to the fact that human 

beings are not digital recorders and should not be expected to replay a conversation 

verbatim out of the blue, especially when the circumstances suggest the juror probably 

never thought he would be required to remember having the conversation, let alone 

exactly what was said. 
35

upon which the trial court actually relied and the reasons the trial court gave for the 

decision. (Ibid.) 

The only reasons the trial court gave for its ruling related to a perceived conflict 

between the accounts of Taxman and Juror No. 2 and the lack of evidence indicating 

Taxman had a motive to lie. Prior to having Taxman return to the courtroom, the court 

noted there was no reason to believe Taxman was lying, and then stated: “[a]nd if that’s 

the case, then I have a record that suggests this juror is not being truthful. And the Court, 

I think, is forced into a scenario where there would be cause to excuse him.” (Italics 

added.) Ultimately the court ruled: “Based on the information provided by Mr. Taxman, 

particularly under oath, this Court finds that there are questions regarding the 

truthfulness of Juror Number Two.” (Italics added.) But the court merely ruled there 

were “questions” regarding Juror No. 2’s truthfulness; it did not rely upon the inference 

the prosecutor argued and it never found that Juror No. 2 had lied or was dishonest. 

The court’s reluctance to specifically find that Juror No. 2 lied is understandable 

given the circumstances discussed ante. And without an express finding that Juror No. 2 

was dishonest or concealed information, supported by evidence upon which the court 

actually relied, good cause to discharge him is not established to a demonstrable reality. 

At best, the evidence established that Juror No. 2 was looking forward to his jury 

duty being over, a sentiment that does not strike us unusual for jurors in a lengthy trial, 

especially when trying to juggle work and perform their civic duty at the same time. 

Such a feeling did not signal that the juror could not perform his duty or was biased; nor 

did his failure to recall making such a statement establish he was unable to perform his 

duties.

18 Indeed, separate from the issue of his credibility, the statement Juror No. 2 is 

18

 Nor did the fact that Juror No. 2 mentioned he was on jury duty to Taxman indicate he 

was unable to perform his duties. It is true that “[i]n appropriate circumstances a trial 

judge may conclude, based on a juror’s willful failure to follow an instruction, that the 
36

said to have made was not material to either the case or his ability to serve.

19 It appears 

the trial court presumed the worse of Juror No. 2. But as this court has recognized, under 

the demonstrable reality test, courts may not “ ‘presume the worst’ of a juror.” (People v. 

Bowers (2001) 87 Cal.App.4th 722, 729 (Bowers).)

In this regard, the circumstances here are reminiscent of an earlier case where the 

California Supreme Court discussed the demonstrable reality standard. In People v. 

Compton (1971) 6 Cal.3d 55, the trial court conducted a jury misconduct hearing

concerning a statement an alternate juror made to his barber during the weekend. The 

barber testified that the alternate disclosed his connection with the trial and said that 

juror will not follow other instructions and is therefore unable to perform his or her duty 

as a juror.” (Ledesma, supra, 39 Cal.4th at p. 738.) But contrary to the Attorney’s 

contention, Juror No. 2 did not violate the trial court’s pretrial admonitions. Prior to the 

opening statements, the trial court instructed with the standard pre-trial instruction, 

CALCRIM No. 101. That instruction told the jurors: “During the trial, do not talk about 

the case or about any of the people or any subject involved in the case with anyone.” In 

the mind of a layperson, a statement telling someone you are on jury duty but looking 

forward to it being over might not fall into the prohibition of talking about the case, the 

people in the case or a subject involved in the case. And unless a juror’s conduct violates 

an express admonition, there is no misconduct. “A lay juror cannot be expected to 

conform to standards of behavior of which [they have] not been informed.” (In re 

Hamilton (1999) 20 Cal.4th 273, 305.)

19

 The conversation with Taxman was de minimus and did not establish good cause for 

his discharge under section 1089 based on an inability to perform his duty. (See 

Armstrong, supra, 1 Cal.5th at p. 452 [“de minimis references” to juror reading a book or 

looking at a cell phone “one or two times” during deliberation insufficient to support a 

finding juror was refusing to deliberate]; People v. Stewart (2004) 33 Cal.4th 425, 509-

511[Juror’s misconduct was “trifling” and non-prejudicial when during break in penalty 

phase of death penalty trial, juror, while in the restroom, spoke to defendant’s exgirlfriend, telling her, “I know we’re not suppose[d] to have any contact but I just wanted 

to tell you’re a very nice looking lady’’]; People v. Hardy (1992) 2 Cal.4th 86, 175 

[juror’s unauthorized contact with prosecution police witness was improper, but was de 

minimis under the circumstances of the case]; People v. Salinas-Jacobo (2019) 33 

Cal.App.5th 760, 779 [even if the juror had brought up the issue of punishment during 

deliberations, there is insufficient evidence that any consideration of it by him was any 

more than de minimis, and was not a basis to discharge him for misconduct].)
37

certain older women had been rejected as prospective jurors “ ‘because they would be 

hard to keep an open mind on a case such as this and what the people that selected the 

jury didn’t know, that he felt the same way,’ ” and that “ ‘he didn’t like to be on a case 

like this because it was hard to keep an open mind.’ ” The trial court never asked the 

alternate about his statement before discharging him. (Id. at p. 59.) Our high court 

concluded the statements were equivocal: “[T]hey could have signified that [the 

alternate] was incapable of ‘acting with entire impartiality’ [Citation], but they could also 

have meant only that he found the facts of the case distasteful and would be compelled to 

make a special effort to remain objective, although he was capable of doing so. Yet the 

trial court did not question the person most likely to know that meaning, [the alternate]

himself.” (Id. at pp. 59-60.) Regarding the requirement in section 1089 of “good cause” 

to find the juror is “unable to perform his or her duty,” our high court explained: 

“inability must appear in the record as a demonstrable reality. Here the ambiguity in [the 

alternate’s] remarks was never resolved by proof, and the court was not entitled to do so 

by presuming the worst. Such a presumption, however well motivated, does not furnish 

the ‘good cause’ required by the governing statutes.” (Id. at p. 60, italics added.) Thus, 

the trial court erred in excusing the alternate.20

Here, while the trial court asked Juror No. 2 a series of questions, most of the 

questions were prefaced with “do you recall” as opposed to “did you say. . .” or “did you 

tell the person . . .” And from his response that he did not recall making the statement the 

trial court had asked about, the court presumed the worst by discharging Juror No. 2, 

20

 Apparently believing it could not proceed without an alternate, the trial court in 

Compton declared a mistrial. (Compton, supra, 6 Cal.3d at p. 58.) Apart from the error 

in discharging the alternate, our high court, as a secondary reason for its reversal, 

concluded that since the jury of 12 was still intact, the trial court could have proceeded 

without the alternate and there was no legal necessity to declare a mistrial. (Id. at pp. 60-

61.) 
38

finding there were “questions about his truthfulness.” This was error. We conclude the 

juror’s inability to perform his duties does not appear in the record as a demonstrative 

reality. (Armstrong, supra, 1 Cal.5th at p. 450.)

4. Harmless Error

This brings us to the question of prejudice. Applying the standard in Watson, 

supra, 46 Cal.2d at page 836, this court has held that an abuse of discretion in 

discharging a juror under section 1089 “requires reversal only if it is reasonably probable 

that a result more favorable to the defendant would have been reached but for the error.” 

(Bowers, supra, 87 Cal.App.4th at p. 735.) 

In People v. Abbott (1956) 47 Cal.2d 362 (Abbott), a seated juror was discharged 

before deliberations began because it came to light that he worked in the same office as 

the defendant’s brother. Our high court, after holding the trial court did not abuse its 

discretion in discharging the juror under section 1089, also held “there is no showing [the 

defendant] was prejudiced.” The court explained there was no prejudice because the 

defendant “was not entitled to be tried by a jury composed of any particular individuals,” 

“[t]he juror who was substituted for [the discharged juror] was examined fully by both 

sides on voir dire, accepted as a qualified alternate and served as such from the start of 

the trial until seated as a regular juror,” and “[t]here is no claim that he was unable to 

render a fair verdict.” (Id. at pp. 371-372.) 

By contrast, in People v. Hamilton (1963) 60 Cal.2d 105, 127 (Hamilton),

21 our 

high court held the trial court prejudicially abused its discretion in discharging a juror 

during the presentation of the penalty phase evidence of a capital trial after erroneously 

concluding the juror committed misconduct. On the question of prejudice, the court

21

 Hamilton was overruled in part on another point in People v. Morse (1964) 60 Cal.2d 

631, at pages 637-638 and footnote 2, and disapproved on a different point in People v.

Daniels (1991) 52 Cal.3d 815, at pages 864-866. 
39

observed that its previous decisions in Abbott and People v. Howard (1930) 211 Cal. 322 

“turned upon the fact that no prejudice had been shown.” (Hamilton, at pp. 126-127.) In 

Abbott, there was no showing the discharged juror “would have been more favorable to 

one side or the other,” and in Howard, “the discharged juror had expressed a prejudice 

against two defense witnesses” and therefore “substitution of an alternate in his place was 

favorable to the defense.” (Hamilton, at p. 127.) But in Hamilton, the prosecution 

moved to discharge the juror in question “on the stated ground that she ‘had disclosed her 

opposition to a verdict imposing the death penalty.’ Thus, her disqualification could only 

be beneficial to the prosecution and prejudicial to the defense.” (Id. at p. 128.) Our high 

court held: “This error alone could well be held to have been prejudicial and to require a 

retrial of the penalty issue. Certainly, when considered with the other errors . . . the 

cumulative effect of such errors must be held to be prejudicial.” (Ibid.) Thus, it is clear 

from these older cases, that our high court requires a showing of prejudice when a trial 

court erroneously discharges a sitting juror under section 1089.

Defendant relies on Cleveland, supra, 25 Cal.4th 466 and Armstrong, supra, 1 

Cal.5th 432, where our high court held the trial courts abused their discretion in 

discharging a juror during deliberations for refusing to deliberate because the record did 

not support such a conclusion as a demonstrable reality. (Cleveland, at p. 485; 

Armstrong, at pp. 450-454.) Citing Hamilton, without further analysis, the Cleveland

court concluded the trial court’s error in discharging the juror under section 1089 was 

prejudicial and required reversal of the judgment. (Cleveland, at p. 486.) Citing 

Cleveland, without further analysis, the Armstrong court concluded the error in that case 

was prejudicial and required reversal. (Armstrong, at p. 454.) 

But as should be apparent from the Cleveland court’s citation to Hamilton, our 

high court relied on Hamilton’s discussion of prejudice in support of its conclusion the 

discharge of the juror was prejudicial. The fact that the Cleveland court did not 

specifically analyze prejudice does not imply a conclusion that prejudice need not be 
40

shown. To the contrary, the prejudice was obvious because, similar to Hamilton, the trial 

court in Cleveland discharged the only juror who disagreed with his fellow jurors 

regarding the defendant’s guilt. As in Hamilton, his disqualification “could only be 

beneficial to the prosecution and prejudicial to the defense.” (Hamilton, supra, 60 Cal.2d 

at p. 128; see also Bowers, supra, 87 Cal.App.4th at pp. 735-736 [discharged juror “was 

the lone holdout juror who steadfastly held to his belief defendant was not guilty 

throughout the course of deliberations and until he was discharged”].) The same thing 

happened in Armstrong. The prejudice involving the discharge of the deliberating juror 

in that case was similarly obvious because the record disclosed the erroneously excused 

juror was leaning in defendant’s favor. Accordingly, defendant’s reliance on Cleveland

and Armstrong is misplaced.22 

22

 Moreover, neither Cleveland nor Armstrong overruled this court’s holding in Bowers, 

supra, 87 Cal.App.4th at page 735, applying the Watson standard to the erroneous 

discharge of seated jurors under section 1089. And neither case stated reversal is always 

required when the trial court erroneously discharges a juror under section 1089. Had our 

high court intended to hold that such an error is per se prejudicial, we are confident it 

would have expressly done so. It is well-established that cases involving per se prejudice 

involve structural errors. (People v. Singh (2015) 234 Cal.App.4th 1319, 1330 (Singh).) 

A structural error is a “ ‘ “defect affecting the framework within which the trial proceeds, 

rather than simply an error in the trial process itself.” ’ ” (People v. Mil (2012) 53 

Cal.4th 400, 410.) Such errors “ ‘deprive defendants of “basic protections” without 

which “a criminal trial cannot reliably serve its function as a vehicle for determination of 

guilt or innocence.” ’ ” (Ibid.) As this court has previously noted: “Under the California 

Supreme Court’s approach, structural error exists only in a very limited class of cases 

(generally involving an impingement on the right to counsel or self-representation, bias 

on the part of the court or jury, a defective instruction on reasonable doubt, the denial of a 

public trial, and an erroneous denial of a Wheeler–Batson motion) in which the error has 

the effect of rendering the factfinding process unreliable, or causing the trial to be 

fundamentally unfair. [Citation.]” (Singh, at p. 1330, citing Mil at p. 410.) Here, the

erroneous discharge of the juror did not render the factfinding process unreliable; nor did 

it render defendant’s trial fundamentally unfair. 
41

Here, defendant has failed to demonstrate the discharge of Juror No. 2 was 

prejudicial under the Watson standard. Juror No. 2 was discharged before deliberations,

and there is no indication he was leaning one way or the other on the question of 

defendant’s guilt from statements he made during the presentation of the evidence as the 

juror did in Hamilton, supra, 60 Cal.2d at pages 123, 127-128. Nor is there any other 

prejudice that can be gleaned from the record. And, as in Abbott, “[t]he juror who was 

substituted for [Juror No. 2] was examined fully by both sides on voir dire, accepted as a 

qualified alternate and served as such from the start of the trial until seated as a regular 

juror. There is no claim that he was unable to render a fair verdict.” (Abbott, supra, 47 

Cal.2d at pp. 371-372; See also, People v. Tate (2010) 49 Cal.4th 635, 672 [“ ‘ “[T]he 

general rule [is] that an erroneous exclusion of a juror for cause provides no basis for 

overturning a judgment.” . . . Defendant has a right to jurors who are qualified and 

competent, not to any particular juror’ ”].) As noted, defendant had a right to an 

impartial jury. That is what he got. 

Applying the Watson standard as this court did in Bowers, supra, 87 Cal.App.4th 

at page 735, we conclude the record here does not establish it is “reasonably probable that 

a result more favorable to defendant would have been reached but for the error” in 

discharging Juror No. 2. 

III. Prosecutorial Misconduct

Defendant asserts the prosecutor violated his federal constitutional rights by 

intentionally obtaining privileged and confidential information from the Director of the 

Conflict Criminal Defenders (CCD) about defense counsel’s attempts to obtain expert 

witness funding. As we explain, this contention is forfeited and defendant has not 

established ineffective assistance of counsel.

A. Additional Background

Trial was originally set for September 27, 2018. On September 18, defense 

counsel moved to continue the trial. In his declaration in support, he stated he had been 
42

unable to focus on defendant’s case for the past 60 days due to three other cases he was 

handling. Defense counsel cited several items that needed to be completed before he 

could competently represent defendant at trial, stating: “Defense has not completed [its] 

discovery and investigation because of time availability. However, more importantly, 

actual resources in the form of money to execute basic investigation / other services are 

currently not available to the defendant or my office.” Defense counsel indicated he 

would be filing “an ancillary request for funding based on [defendant’s] apparent current 

indigent status” if defendant or his family were unable to provide funding by the end of 

the following week.

The prosecution filed a written opposition to the continuance motion. In it, the 

prosecutor addressed the request for ancillary funding, noting “an email from the Director 

of the [CCD] on Friday, September 14, 2018, stated that [defense counsel] only recently 

applied for ancillary services; however, he did not comply with their policies and 

procedures. Due to a previous request for ancillary funding, [defense counsel] is familiar 

with CCD’s policies and procedures.” 

At the hearing on the motion, the prosecutor explained that she contacted the CCD 

Director and received an email response indicating a request for ancillary funding had 

been received, but because “the proper policy and procedures were not followed . . . 

nothing had even been started as of Friday.” In response, defense counsel stated he was 

“very concerned about [the prosecutor’s] interaction with the indigent panel” and added:

“I’m putting on the record that is supposed to be ex[ ]parte and confidential. I have no 

understanding why the conflict panel is sharing that with [the] prosecution. Generally 

those motions are required to be done by law sealed in camera, and it was not.”

The trial court noted that was a separate issue from the motion for continuance, 

adding: “[Defense counsel], you may make a motion regarding that. If you want to ask 

the court regarding that I would discuss that with you at that time.” After further 

argument on the continuance motion, the trial court asked defense counsel for a guarantee 
43

as to when he would be able to proceed to trial. Defense counsel responded: “I would 

like to have interaction with the panel before I make that guarantee.” The trial court 

indicated that would be fine and continued the hearing until the following week. 

In the meantime, the matter was transferred to a different department by order of 

the presiding judge. Trial was set to begin in the new department on October 22, 2018. 

Trial ultimately proceeded as scheduled, though defense counsel made several additional 

motions for continuances.

After the trial and prior to the sentencing hearing, defense counsel filed another 

motion for continuance. In response to the prosecutor’s argument in opposition to the 

motion, defense counsel stated: “Let’s start with [the prosecutor’s] unconstitutional 

irreverence for my client’s due process in that she unilaterally, without any authority 

approached [the CCD Director] . . . and had ex parte communications, presumably, 

according to her, which I can’t fathom is true.” The trial court interrupted defense 

counsel and explained “this is not the time and place to reiterate arguments that you’ve 

previously made in connection with other continuances.” Defense counsel stated he 

understood and indicated he would “put it on paper and file.” After further argument, the 

details of which will be set forth during our discussion of defendant’s Franklin issue, the 

trial court granted the requested continuance. Defense counsel did not file a motion 

seeking redress for the prosecutor’s communication with the CCD Director. 

B. Forfeiture

Defendant argues “the prosecutor interfered with [his] right to counsel by 

intentionally obtaining privileged and confidential information from the [CCD].” This 

prosecutorial misconduct, defendant argues, is also “governmental behavior that ‘shocks 

the conscience’ [and] violates [his] due process rights,” requiring reversal of his 

convictions. 
44

Generally, “[t]o preserve a misconduct claim for review on appeal, a defendant 

must make a timely objection.” (People v. Davis (2009) 46 Cal.4th 539, 612; People v. 

Gamache (2010) 48 Cal.4th 347, 370-371.) 

Defense counsel complained that he was “very concerned about [the prosecutor’s] 

interaction with the indigent panel,” noting defense requests for ancillary services are 

“supposed to be ex[ ]parte and confidential.” But this complaint was registered in 

connection with defendant’s motion for a continuance. The trial court noted this was a 

separate issue and invited defense counsel to “make a motion regarding that.” He never 

did. After the matter was transferred to a different department, effectively giving the 

defense the continuance initially sought, defense counsel requested a further continuance 

and complained about the denial of certain ancillary funding. But it was not until after 

defendant’s conviction, at the time set for sentencing, that defense counsel again brought 

up the prosecutor’s communication with the CCD Director, calling it “unconstitutional 

irreverence for my client’s due process,” again in connection with a motion for 

continuance. When the trial court stated it was “not the time and place” for that 

argument, counsel stated he understood and indicated he would “put it on paper and file.” 

He never did. 

Thus, the trial court was never called upon to decide whether or not the prosecutor 

engaged in misconduct, let alone whether that misconduct amounted to “governmental 

behavior that ‘shocks the conscience’ ” in violation of defendant’s due process rights. 

The claim is therefore forfeited.23 (People v. Low (2010) 49 Cal.4th 372, 393, fn. 11 [due 

process challenge to defendant’s conviction based on claim of outrageous government 

conduct forfeited where not raised at trial].) 

23

 Our resolution of this issue on forfeiture grounds should not be viewed as an 

indication we condone the prosecutor’s conduct. 
45

C. Alternative Claim of Ineffective Assistance of Counsel

Anticipating forfeiture, defendant argues in the alternative that defense counsel 

provided constitutionally deficient assistance by failing to adequately preserve this claim 

for review. We are not persuaded. 

We discuss the legal principles related to claims of ineffective assistance of 

counsel, post. Suffice it to say here, we conclude defendant has not shown the

prosecutor’s inquiry to CCD and the information she obtained prejudiced defendant 

under the applicable standards, i.e., that there is a reasonable probability that had counsel 

raised the claim in the trial court defendant would have obtained a more favorable result.

IV. Asserted Evidentiary Error and Prosecutorial Misconduct

Defendant contends the trial court prejudicially abused its discretion and further 

violated his constitutional rights by allowing the prosecutor to present misleading 

testimony and argument regarding the defense’s ability to perform its own expert forensic 

analysis. We disagree.

A. Additional Background

Defendant moved in limine to prevent the prosecutor from arguing to the jury that 

he “could have obtained an independent scientific test” or “could have independently 

analyzed the scientific evidence,” arguing: “The need for this request is compounded by 

the denial of funding and lack of funding provided for this case to the indigent defendant” 

by the CCD. 

At the in limine hearing, defense counsel elaborated: “There are all sorts of things 

that I believe need to be done in this case but because of [defendant’s] indigence and the 

lack of funding or perceived lack of need for funding per my requests those have not 

currently been given. I continue to work and advocate and find those funds. And as that 

evolves I’ll let everyone know. [¶] Here is my concern: I have a duty to investigate. . . . 

[¶] I am diligent in investigating and I have diligently found a need for duplicity of 

things that I think need to be done in this case, especially a homicide case, attempted 
46

homicide case and great bodily injury, assault. With that said, I am in a terrible position. 

Because if I start to talk about: Well, you didn’t test for this, did you? The immediate 

response potentially could be: Well, the defense had access to that but did not. And 

therefore, there is a negative inference associated because we’re trying to hide something 

or my client is guilty.” Defense counsel argued such an argument would amount to “an 

unfair, unconstitutional shifting of the burden [of proof] . . . beyond a reasonable doubt as 

to guilt” from the prosecution to the defense. 

The prosecutor responded: “I would object to that. I don’t have anything to do 

with the defense’s timeliness or lack of ancillary funding. That is between him and 

whatever county official he’s been in contact with. It has nothing to do with me or my 

office. There is a plethora of case law as to a failure to call logical witnesses. And if 

there is some sort of argument regarding that, I will intend to address that. [¶] I will put 

on the record that counsel perfectly knows that he can ask me to do testing. In fact, in 

this case he asked me to do DNA testing and I did. So his argument rings hollow to me, 

and I will bring that up.” 

The trial court denied the motion. 

Towards the end of trial, the prosecution witness who tested the blue sweatshirt for 

gunpowder residue testified about the samples she collected from the sweatshirt and the 

testing she performed. During cross-examination, defense counsel focused on the testing 

she did not perform, including defendant’s pants and shoes. On redirect, the prosecutor 

asked the witness: “Now, if the defense wants analysis for any other types of items not 

requested by the prosecution, you do those analyses, correct?” The witness answered:

“Correct.” The prosecutor followed up with: “Now, counsel asked you something about 

pants. [¶] Were you ever asked to do any sort of analysis on pants?” The witness 

answered: “No, I was not.” 

Defense counsel objected to this line of questioning. The trial court sustained the 

objection and invited counsel to discuss the matter at sidebar. Later, the court explained, 
47

the prosecutor would be allowed to ask the witness “about the defense’s access to the 

evidence and that they could do their own testing.” But the prosecutor would be 

precluded from asking questions about whether the defense could, instead of conducting 

its own testing of the evidence, ask the prosecutor to conduct additional testing. This 

ruling was made under Evidence Code section 352 because that line of questioning was 

potentially confusing and misleading for the jury. The trial court also noted at sidebar 

that “the defense was playing both sides of the coin” because “the defense did ask for the 

DNA testing,” which was provided by the prosecution, but nevertheless excluded such 

questioning. 

When questioning resumed, the prosecutor asked: “[I]n your experience at the 

crime lab, if the defense wants access to the evidence or any other evidence for testing, 

they have access to the evidence as well. Fair to say?” The witness answered: “Yes.” 

On recross, defense counsel asked the witness whether there would be a fee for such 

testing and how much it would be. The witness stated there would be a fee, but she did 

not know the amount. 

During closing argument, the prosecutor argued: “Counsel has gone over and over 

it’s my burden of proof and that’s absolutely right. But the truth of the matter is 

everybody has access to the evidence equally. A lot of folks think it’s my evidence. It is 

not. It is just the evidence. Both sides have access to the evidence. You can’t sit back

. . . and Monday-night-quarter backing; when you see what happens on Sunday night and 

you come back and criticize . . . . Well, this isn’t a game. It isn’t a game. We’re not 

sitting back to pounce on everything that was done wrong. You consider the evidence 

that’s presented.”

B. Analysis

On appeal, defendant argues the trial court abused its discretion under Evidence 

Code section 352 and “unconstitutionally shifted the burden to the defense, suggesting 

the defense had an obligation to present evidence.” As for the prosecutor’s conduct in 
48

response to those rulings, defendant argues the prosecutor unfairly took advantage of the 

rulings by presenting misleading testimony and argument, specifically, “that the defense 

had equal access to the evidence and could have facilitated its own testing.” We address 

and reject each argument in turn. 

A prosecutor’s question asking whether the defense had the opportunity to 

independently test evidence is not improper. (People v. Cook (2006) 39 Cal.4th 566, 607

(Cook) [prosecutor’s question to ballistics expert whether defense could have subjected 

the evidence to testing by an independent laboratory did not shift the burden of proof].) 

Nor need the question have been precluded under Evidence Code section 352, 

which provides: “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.” “Evidence is not inadmissible under section 352 unless 

the probative value is ‘substantially’ outweighed by the probability of a ‘substantial 

danger’ of undue prejudice or other statutory counterweights. Our high court has 

emphasized the word ‘substantial’ in section 352. [Citations.] [¶] Trial courts enjoy ‘ 

“broad discretion” ’ in deciding whether the probability of a substantial danger of 

prejudice substantially outweighs probative value. [Citations.] A trial court’s exercise of 

discretion ‘will not be disturbed except on a showing the trial court exercised its 

discretion in an arbitrary, capricious, or patently absurd manner that resulted in a 

manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-

168 (Holford).)

The trial court did not abuse its discretion in finding the probative value of the 

challenged testimony was not substantially outweighed by a substantial danger of undue 

prejudice or any other Evidence Code section 352 concern. The evidence tended to rebut 

the suggestion, inherent in defense counsel’s questions, that potentially exculpatory 

evidence might have been uncovered had additional testing been performed. To the 
49

extent that it also suggested the defense possessed the means to either perform its own 

testing or pay the fee associated with having the prosecution witness perform the 

additional tests, we conclude this suggestion did not substantially prejudice the defense. 

Nor was any prejudice unfair in light of the fact that it was defense counsel who opened 

the door for this line of questioning by suggesting additional items of clothing should also 

have been tested for gunpowder residue. 

Nor did this evidentiary ruling improperly shift the burden of proof to the defense.

(Cook, supra, 39 Cal.4th at p. 607.) Nothing in the witness’s answer suggested defendant 

had the burden of proving anything. The jury was fully and correctly informed about the

burden of proof. And the prosecutor acknowledged during her closing argument that the 

burden of proof was hers to carry. 

Finally, we reject defendant’s argument that the prosecutor unfairly took 

advantage of the trial court’s rulings to elicit the above-described evidence and argue to 

the jury that the defense had equal access to the evidence. In making this argument, he 

relies on People v. Varona (1983) 143 Cal.App.3d 566 and People v. Daggett (1990) 225 

Cal.App.3d 751, each of which “involved erroneous evidentiary rulings on which the 

prosecutor improperly capitalized during his closing argument.” (People v. Lawley

(2002) 27 Cal.4th 102, 156, italics added.) The trial court’s ruling was not erroneous 

here. Moreover, the prosecutor merely pointed out the physical evidence was not hers 

and that both sides have access to it. There was nothing inappropriate about this 

argument.

We conclude the trial court did not abuse its discretion or violate defendant’s 

constitutional rights by allowing the prosecutor to elicit the testimony set forth above; nor 

did the prosecutor engage in misconduct by eliciting the evidence or arguing the defense 

had equal access to the evidence. 
50

V. Circumstantial Evidence Instructional Error Claim

Defendant contends the trial court prejudicially erred by improperly instructing the 

jury regarding their evaluation of circumstantial evidence. Again, we disagree.

The jury was instructed with CALCRIM No. 225 regarding their evaluation of 

circumstantial evidence proving defendant acted with a particular intent or mental state. 

The instruction provided: “The People must prove not only that the defendant did the 

acts charged, but also that he acted with a particular intent and/or mental state. The 

instruction for each crime and allegation explains the intent and/or mental state required.

[¶] An intent and/or mental state may be proved by circumstantial evidence. [¶] Before 

you may rely on circumstantial evidence to conclude that a fact necessary to find the 

defendant guilty has been proved, you must be convinced that the People have proved 

each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you 

may rely on circumstantial evidence to conclude that the defendant had the required 

intent and/or mental state, you must be convinced that the only reasonable conclusion 

supported by the circumstantial evidence is that the defendant had the required intent 

and/or mental state. If you can draw two or more reasonable conclusions from the 

circumstantial evidence, and one of those reasonable conclusions supports a finding that 

the defendant did have the required intent and/or mental state and another reasonable 

conclusion supports a finding that the defendant did not, you must conclude that the 

required intent and/or mental state was not proved by the circumstantial evidence. 

However, when considering circumstantial evidence, you must accept only reasonable 

conclusions and reject any that are unreasonable.” 

As the bench notes for CALCRIM No. 225 explain, this instruction is appropriate 

“when the defendant’s intent or mental state is the only element of the offense that rests 

substantially or entirely on circumstantial evidence.” (Judicial Council of Cal. Crim. Jury 

Instns. (2017) Bench Notes to CALCRIM No. 225, p. 909.) But where “other elements 
51

of the offense also rest substantially or entirely on circumstantial evidence,” the trial 

court should instead instruct the jury with CALCRIM No. 224. (Ibid.) 

CALCRIM No. 224 provides: “Before you may rely on circumstantial evidence to 

conclude that a fact necessary to find the defendant guilty has been proved, you must be 

convinced that the People have proved each fact essential to that conclusion beyond a 

reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the 

defendant guilty, you must be convinced that the only reasonable conclusion supported 

by the circumstantial evidence is that the defendant is guilty. If you can draw two or 

more reasonable conclusions from the circumstantial evidence, and one of those 

reasonable conclusions points to innocence and another to guilt, you must accept the one 

that points to innocence. However, when considering circumstantial evidence, you must

accept only reasonable conclusions and reject any that are unreasonable.” 

At the jury instruction conference, defense counsel asked the trial court to instruct 

the jury with CALCRIM No. 224, arguing defendant’s identity as the shooter rested 

substantially on circumstantial evidence. The trial court disagreed and, relying on People 

v. Malbrough (1961) 55 Cal.2d 249 (Malbrough), instructed the jury with CALCRIM No. 

225.

Although circumstantial evidence was admitted to prove his identity as the 

shooter, such as gunpowder residue found on the sweatshirt recovered from S.S.’s house 

and defendant’s DNA found on that sweatshirt, CALCRIM No. 224 “should not be given 

where circumstantial evidence is incidental to and corroborative of direct evidence.” 

(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171; Malbrough, supra, 55 Cal.2d 

at pp. 250-251.) Here, defendant’s identity as the shooter was primarily established by 

direct evidence, specifically the eyewitness identifications to the police. As our Supreme 

Court has stated in People v. Anderson (2001) 25 Cal.4th 543, “by introducing 

circumstantial evidence merely to corroborate an eyewitness, the prosecution did not 
52

substantially rely on such evidence.” (Id. at p. 582.) Accordingly, the trial court’s 

decision to instruct with CALCRIM No. 225 rather than CALCRIM No. 224 was proper. 

VI. Cumulative Prejudice

Defendant further asserts the cumulative prejudicial impact of the asserted errors 

requires reversal. However, there being no error to accumulate with the error related to 

discharging Juror No. 2, defendant’s assertion of cumulative prejudice also fails. 

VII. Sentencing Claims

Defendant brings two sentencing matters to this court’s attention. The first 

implicates our high court’s recent decision in People v. Tirado (2022) ___ Cal.5th ___ ; 

2022 WL 176141. 

A. Reduction of Defendant’s Firearm Enhancements

Defendant argues the matter must be remanded so the trial court can exercise its 

discretion as to whether to reduce the section 12022.53, subdivision (d) firearm 

enhancements to lesser firearm enhancements under subdivisions (a), (b), or (c), or under 

section 12022.5, subdivision (a) — notwithstanding that none of those lesser 

enhancements had been charged.

There had been a split of authority on this issue. (See People v. Tirado (2019) 38

Cal.App.5th 637, review granted Nov. 13, 2019, S257658 and People v. Morrison (2019) 

34 Cal.App.5th 217. We originally agreed with the Fifth District’s decision in Tirado, 

which held the trial court was not permitted to impose a lesser uncharged statutory 

enhancement. (Tirado, at p. 644.) But our high court, granting review in Tirado, reached 

the opposite conclusion. 

Our high court held: “When an accusatory pleading alleges and the jury finds true 

the facts supporting a section 12022.53(d) enhancement, and the court determines that the 

section 12022.53(d) enhancement should be struck or dismissed under section 

12022.53(h), the court may, under section 12022.53(j), impose an enhancement under 
53

section 12022.53(b) or (c)” — even where those lesser enhancements were not charged. 

(Tirado, supra, 12 Cal.5th at p. 700.) 

We shall, accordingly, remand this matter back to the trial court to allow it to 

determine whether it should exercise its discretion under section 12022.53, subdivision 

(h) and section 1385 to strike the section 12022.53, subdivision (d) enhancement and 

impose instead a lesser enhancement under subdivisions (b) or (c) of section 12022.53.

B. Dueñas Claim

Second, defendant asserts that we must stay the $10,000 restitution fine because it 

was imposed without a determination of his ability to pay in violation of his 

constitutional rights. In making this claim, defendant relies on Dueñas, supra, 30 

Cal.App.5th 1157, for the premise that such a determination is constitutionally required. 

But for reasons explained more fully elsewhere, we are in agreement with the line of 

cases concluding Dueñas was wrongly decided and reject defendant’s claim on that

basis.24 (See People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019, 

S258946; People v. Kingston (2019) 41 Cal.App.5th 272, 279-281; People v. Aviles

(2019) 39 Cal.App.5th 1055, 1068-1069; People v. Caceres (2019) 39 Cal.App.5th 917, 

927.) Stated simply, the strands of precedent relied upon by the Dueñas court in 

expanding due process protections to require an ability to pay determination before 

imposing a mandatory fine, fee, or assessment do not support, and indeed run contrary to, 

such an expansion. Imposition of the challenged financial obligations has not deprived 

24

 Our Supreme Court is poised to resolve this question, having granted review in People 

v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which 

agreed with the court’s conclusion in Dueñas that due process requires the trial court to 

conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it 

imposes court facilities and court operations assessments under section 1465.8 and 

Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, 

at pp. 95-96.) 
54

defendant of access to the courts. Nor has defendant been incarcerated because of his

inability to pay. Rather, he was incarcerated because of his crimes. 

Nor has defendant persuaded us that imposition of the fines and fees in this case 

violated his Eighth Amendment right against excessive fines, as that right was recently 

described by the United States Supreme Court in Timbs v. Indiana (2019) ___ U.S. ___

[203 L.Ed.2d 11]. That case is so manifestly inapposite we decline to discuss it at all. 

Instead, we simply note defendant has cited us to no authority, nor have we discovered 

any on our own, supporting the position that the restitution fine imposed in this case is 

excessive in relation to either the gravity of defendant’s offenses or his economic 

situation. (Id. at p. ___ [203 L.Ed.2d at p. 17].)

VIII. Ineffective Assistance of Counsel Claim Related to Franklin Materials

Defendant argues his trial counsel provided constitutionally deficient assistance by 

failing to submit a packet of mitigation materials under Franklin, supra, 63 Cal.4th 261. 

We conclude defendant has not carried his burden to establish ineffective assistance of 

counsel in this direct appeal and that the matter is more appropriately addressed in a 

habeas corpus proceeding. 

A. Additional Background

The jury returned their verdict in November 2018. Defense counsel asked for 

sentencing to be set about 60 days out, “because of the nature and potential litigation 

packages, the Franklin packet and all those sorts of things.” The trial court agreed,

setting the hearing for January 11, 2019. 

On that date, defense counsel stated he had not been provided a copy of a 

probation report and the court indicated that a memo containing victim impact statements 

had just been provided from the probation department that morning. Defense counsel 

requested a continuance so defendant’s grandfather, who was out of state, could attend 

sentencing and be heard on defendant’s behalf. Counsel also wanted to obtain the 

probation report and go over it with defendant. Counsel suggested the sentencing hearing 
55

could start that day with the victim’s family addressing the court and asked “that the 

defense’s ability to put on any kind of information and/or references or commentary from 

the family be put over to a secondary date.”

The prosecutor objected, arguing the defense had “no right to make commentaries 

or speak at a judgment and sentencing,” and while defendant had the right under Franklin

to present materials for purposes of an eventual youth offender parole hearing, defense 

counsel had previously asked for the current date for that purpose. The prosecutor argued 

Franklin materials had no bearing on the judgment and sentencing, and further argued the 

two-day notice she had been provided regarding the request for a continuance was unfair 

to the victim’s family. As for the appearance of the grandfather, the prosecutor asserted, 

“There is no right for a continuance for family members to be present at the judgment and 

sentencing.” The prosecutor asked the court to proceed with sentencing. She had stated 

in her written opposition, however, that the prosecution did not oppose “the defense filing 

its Franklin materials with the court within a specified period of time as long as copies 

were provided to the People.” 

Defense counsel responded by requesting more time to create the Franklin

package, again suggesting the sentencing hearing could begin, and asserted there was no 

reason to cut defendant’s ability to participate in his sentencing and speak. The trial court 

put the matter over to the afternoon so defense counsel could review the probation report 

and then go over it with defendant. When the parties returned, the trial court indicated it 

had further considered defendant’s motion and granted a continuance of judgment and 

sentencing to February 8, 2019. 

Prior to adjourning, defense counsel explained to the court he had had difficulty up 

to that point regarding the Franklin packet. After expressly noting defendant’s family 

was present in the courtroom at that time, he explained that getting information from 

them had been difficult. He explained he had requested materials from defendant’s 

mother that could be provided to a psychiatrist to “create a baseline.” He also had 
56

conversations with defendant’s mother about funding for a psychiatrist and was trying to 

work with her and the grandfather to come up with the necessary funds. He noted that 

funds from the county had not been forthcoming. Counsel told the court that if he could 

not get funds, another continuance might be requested. He complained if he could not 

get funding from the county or the family, he would be “stuck, hamstrung, and with both 

my hands literally and figuratively tied behind my back to provide what I need to do for 

[defendant].” He then said: “I’m looking directly at the mother now — hopefully, to 

work with her to get the letter and photographs, other baseline materials or baseline 

evaluations of [defendant’s] intellectual and emotional and psychological maturity 

baseline to help the Court understand that baseline per Franklin and to create an 

encapsulized [sic] factual finding and bases for later parole hearings.” 

On February 8, 2019, defense counsel still had not submitted a Franklin packet. 

He again moved for a continuance. The central thrust of the request was the lack of 

resources to retain an expert and prepare a psychological evaluation; a request for 

funding had been made and denied. He informed the court “[t]he family does not have 

the funds” and added, “[t]hey’re not responsible for [defendant’s] funding. [Defendant] 

is indigent.” Counsel had obtained juvenile records and planned to provide those to 

whomever would do the social history or psychiatric evaluation. The prosecution argued 

that although section 3051 makes reference to psychological evaluations, the defense has 

no right to one.

The trial court tentatively denied the continuance, pending an in camera hearing 

related to a statement defendant wanted to make to the court confidentially. In tentatively 

denying the continuance, the court stated: “the defense has in fact had every reasonable 

opportunity and incentive to make an adequate record for [defendant’s] eventual Youth 

Offender Parole hearing.” The court noted the defense had been given three months to 

prepare and collect information relevant to an eventual youth offender parole hearing. 
57

When the trial court resumed the public proceedings, it denied the request for a 

continuance and proceeded with sentencing. When the court asked defense counsel if 

defendant was waiving arraignment for judgment and sentence, defendant told the court, 

“I want to get the sentencing over with. Sentence me today.” 

Defense counsel informed the court he had received “indicia” from defendant’s 

mother that would be made part of the “societal history” in a Franklin submission. 

Counsel asked the court to allow defendant’s mother, aunt, and one or two of his brothers 

to speak on defendant’s behalf, counsel’s express intent being to “lay the foundation for 

[a] societal history,” which he indicated would be subsequently submitted. The 

prosecutor objected, arguing: “They can absolutely submit statements in writing as part 

of the Franklin packet, but there is no right to give a verbal statement as to the defendant. 

This is the time for victim impact statements. It is the time for the victims to finally be 

heard.”25 The prosecutor also complained that the statement from defendant’s mother 

defense counsel referenced had not been turned over to the prosecution. 

The court responded: “The law does not currently authorize such statements in 

support, or whether they’re mitigation or Franklin to be made in the way that you have 

suggested.” The court then asked whether there was additional comment, and at that 

point, defendant stated: “I don’t even want no Franklin. Just get this sentence over with. 

I don’t need no Franklin. I don’t need any of that. If the family gonna speak, let the 

family speak. Get it over with.” Defense counsel then stated: “I will file a subsequent 

packet, Your Honor, on that. But I will and am absolutely reserving to do that, despite 

[defendant’s] statement on the record.” The trial court then sentenced defendant. No 

Franklin packet was ever filed by defense counsel. 

25

 As discussed post, a trial court is, in fact, authorized to hear testimony from a 

defendant’s family members at a Franklin hearing. 
58

B. Analysis

On appeal, defendant argues his trial counsel “repeatedly acknowledged the 

Franklin procedure, and repeatedly expressed his intention to file Franklin materials,” 

and his “failure to follow through on his intention to file Franklin materials constitutes 

deficient performance.” For the reasons we shall discuss, we cannot find ineffective 

assistance of counsel on this record, but note such a record could be developed in a 

habeas corpus proceeding. 

1. Legal Principles Related to Ineffective Assistance of Counsel Claims

To prevail on a claim of ineffective assistance of counsel, a defendant must show 

(1) counsel’s performance fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) the deficient performance prejudiced defendant. 

(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 

696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) 

“ ‘Surmounting Strickland’s high bar is never an easy task.’ ” (Harrington v. Richter

(2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky

(2010) 559 U.S. 356, 357 [176 L.Ed.2d 284, 297].)

To establish prejudice, “[i]t is not enough ‘to show that the errors had some 

conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 562 U.S. at 

p. 104.) A defendant must show a reasonable probability that he would have received a 

more favorable result had counsel’s performance not been deficient. (Strickland, supra, 

466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” 

(Strickland, at p. 694; accord, Ledesma, at p. 218.) The likelihood of a different result 

must be substantial, not just conceivable. (Richter, at p. 112.) Stated slightly differently, 

a defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply 

speculation.’ [Citation.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241, italics 

added.)
59

“It is particularly difficult to prevail on an appellate claim of ineffective 

assistance. On direct appeal, a conviction will be reversed for ineffective assistance only 

if (1) the record affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason and failed to provide one, 

or (3) there simply could be no satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus proceeding.” (People v. 

Mai (2013) 57 Cal.4th 986, 1009, italics omitted.)

2. Preserving Information for Future Youthful Offender Parole Hearings

To bring juvenile sentencing in California into conformity with United States 

Supreme Court Eighth Amendment cases pertaining to juveniles, the Legislature enacted 

Senate Bill No. 260 (2013-2014 Reg. Sess.), effective January 1, 2014, adding sections 

3051 and 4801, subdivision (c), to the Penal Code. “These provisions require the Board 

of Parole Hearings (Board), with certain limited exceptions, to conduct a youth offender 

parole hearing no later than a juvenile offender’s 25th year of incarceration (and at earlier 

points depending on the offender’s ‘controlling offense’) (§ 3051, subd. (b)) and, when 

considering parole eligibility for these youth offenders, to ‘give great weight to the 

diminished culpability of juveniles as compared to adults, the hallmark features of youth, 

and any subsequent growth and increased maturity’ (§ 4801, subd. (c)).” (People v. 

Sepulveda (2020) 47 Cal.App.5th 291, 298 (Sepulveda).) 

“In directing the Board to ‘give great weight to the diminished culpability of 

juveniles as compared to adults, the hallmark features of youth, and any subsequent 

growth and increased maturity of the prisoner’ ([Pen. Code,] § 4801, subd. (c)), the 

statutes also contemplate that information regarding the juvenile offender’s 

characteristics and circumstances at the time of the offense will be available at a youth 

offender parole hearing to facilitate the Board’s consideration.” However, assembling 

information about the individual before the crime, the Franklin court explained, “is 

typically a task more easily done at or near the time of the juvenile’s offense rather than 
60

decades later when memories have faded, records may have been lost or destroyed, or 

family or community members may have relocated or passed away. . . . Consideration of 

‘subsequent growth and increased maturity’ implies the availability of information about 

the offender when he was a juvenile.” (Franklin, supra, 63 Cal.4th at pp. 283-284.)

Accordingly, our high court in Franklin authorized a post-sentencing trial court 

proceeding in which “the [trial] court may receive submissions and, if appropriate, 

testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California 

Rules of Court, and subject to the rules of evidence. [The defendant] may place on the 

record any documents, evaluations, or testimony (subject to cross-examination) that may 

be relevant at his eventual youth offender parole hearing, and the prosecution likewise 

may put on the record any evidence that demonstrates the juvenile offender’s culpability 

or cognitive maturity, or otherwise bears on the influence of youth-related factors.”

(Franklin, at p. 284, italics added.)26 

Here, we cannot conclude that trial counsel was incompetent in not submitting a 

Franklin package without further development of the factual record, including, testimony 

from counsel as to why. Reviewing courts are not permitted to find ineffective assistance 

on the basis of speculation there was evidence that would have been helpful to the 

defense that counsel did not provide – here, evidence that demonstrated a diminished 

level of culpability related to youth, cognitive immaturity, or any information concerning

youth-related factors. 

26

 Contrary to implications of the prosecutor’s argument, a trial court is authorized to 

hear from a defendant’s family members at Franklin hearing in the form of testimony. 

Accordingly, the family could have provided testimony here. Of course, they would have 

then been under oath and subject to cross-examination. (Franklin, supra, 63 Cal.4th at 

p. 284; See also In re Cook (2019) 7 Cal.5th 439, 446-447 [allowing defendants whose 

convictions became final prior to Franklin to make a Franklin record under section 

1202.01].) Defendant does not challenge the trial court’s ruling on this issue in this 

appeal.
61

Our dissenting colleague calls the fact that trial counsel did not submit a Franklin

package “inexplicable.” (Dis. opn. post, at p. 4.) The dissent goes on to state: “there is 

no indication that counsel believed there was no relevant information to provide,” and the 

fact that counsel asked the trial court to allow family members to speak, “suggests they 

had something relevant to say in this regard.” (Id. at p. 7.) Further, the dissent notes 

counsel said he would provide a Franklin package even after defendant declared, “I don’t 

need no Franklin . . . .” (Ibid.) Yet, he did not do so.

But in our view, our dissenting colleague’s belief that there must have been 

something helpful defense counsel could have submitted is grounded on speculation, and 

point in fact, the record suggests potential explanations why a Franklin package was not 

submitted. There were funding issues that impeded production of a social-psychological 

evaluation. Additionally, there was an apparent lack of cooperation by the family. 

Indeed, regarding counsel’s request to have the family address the court at sentencing, it 

may be, with them all present at one time in the same place, counsel saw this as a last 

opportunity to put something on the record that might be helpful, without really knowing 

it would be helpful. And while our dissenting colleague places weight on the absence of 

anything in the record indicating “that counsel believed there was no relevant information 

to provide” (Dis. opn. post, at p. 7), we would not expect counsel to articulate such a 

belief while in the process of determining whether there might be something to offer.

As for not providing a submission after the sentencing, for all we know, defendant 

may have told his family not to provide any statements or otherwise cooperate and they 

complied with his request. This is certainly plausible given his insistence he did not want 

a Franklin package submitted. Or perhaps the “indicia” defendant’s mother provided 

before the sentencing hearing (whatever that was) and statements that may have been 

collected post-sentencing (if there were any) did not show immaturity or other youthrelated factors. It is also possible that if counsel obtained statements post-sentencing, 

those statements hurt defendant, and defense counsel made a tactical decision not to 
62

submit them. And it could be that counsel thought the prosecution might object to the 

written statements from the family without the ability to cross-examine them in an effort 

to develop information that might be helpful to the prosecution at a youthful offender 

parole hearing. As our dissenting colleague acknowledges, “we do not know what 

defendant’s family members would have said regarding his youth and immaturity at the 

time of the offense.” (Dis. opn. post, at p. 7.) While the information might have been 

helpful, it might also have hurt defendant’s interests. 

Of course, this too is speculation — but the point is we simply do not know 

whether there was information defense counsel could have submitted that would have 

been helpful at a future parole hearing or whether there were tactical reasons for not 

submitting whatever information counsel had obtained. Our dissenting colleague and 

appellate counsel might ultimately be proven correct in their perception that trial counsel 

simply dropped the ball here. But we cannot speculate that is what happened. “ ‘[I]f the 

record ‘ “sheds no light on why counsel acted or failed to act in the manner challenged,” ’ 

we must reject the [ineffective assistance of counsel] claim ‘ “unless counsel was asked 

for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation.” ’ ” (Sepulveda, supra, 47 Cal.App.5th at p. 301, italics added.) 

Here, there could be satisfactory explanations.

Accordingly, we reject defendant’s claim of ineffective assistance of counsel on 

this direct appeal. His claims should be raised in a petition for habeas corpus. (See 

Sepulveda, supra, 47 Cal.App.5th at pp. 299-302 [rejecting defendant’s claim of 

ineffective assistance of counsel related to counsel’s decision to stipulate to submission 

of written Franklin materials; noting counsel could have determined defendant would 

benefit more by a stipulated agreement to have the Franklin memorandum presented 

without contemporaneous challenge or contradiction from the prosecution; and 

concluding defendant’s claim of ineffective assistance should be presented in a petition 

for writ of habeas corpus so counsel could explain his decision to stipulate].)
63

DISPOSITION

We affirm the conviction but remand to allow the trial court to consider exercising 

its discretion under section 12022.53, subdivision (h) and section 1385 to strike the 

section 12022.53, subdivision (d) enhancement in the interest of justice and impose

instead a lesser enhancement under subdivisions (b) or (c) of section 12022.53.

 /s/

MURRAY, J.

I concur:

 /s/

HULL, Acting P. J.



 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.
1

HOCH, J., Dissenting.

The majority concludes defendant has not established that his trial counsel’s 

failure to submit a packet of mitigation materials under People v. Franklin (2016) 63 

Cal.4th 261 (Franklin), amounted to ineffective assistance of counsel. I disagree and 

therefore dissent from that portion of the opinion. In all other respects, I concur with my 

colleagues in the majority and join in the remainder of the opinion. 

A.

Background

The majority provides a thorough recitation of the background facts. I highlight 

the following:

The jury returned their verdict in this case on November 16, 2018. Defense 

counsel asked for sentencing to be set about 60 days out so that he would have sufficient 

time to put together a “Franklin packet.” The trial court agreed and set the sentencing 

hearing for January 11, 2019.

On that date, defense counsel requested a continuance, arguing among other things 

that defendant’s grandfather wanted to attend the sentencing and be heard on defendant’s 

behalf, but he was out of state. Defense counsel suggested starting the sentencing hearing 

so that the victim’s family could be heard, but then continuing the hearing to a later date 

to hear from defendant’s family. The prosecutor objected, arguing the defense had “no 

right to make commentaries or speak at a judgment and sentencing,” and while defendant 

had the right under Franklin to present mitigation materials for purposes of an eventual 

youth offender parole hearing, defense counsel “specifically asked for a time beyond the 

statutory period to do the work necessary for the Franklin materials,” but for whatever 

reason failed to do so. The trial court granted the continuance over the prosecutor’s 

objection and set a new date for sentencing, February 8, 2019.

On that date, defense counsel still had not put together a Franklin packet. He 

again moved for a continuance. The trial court denied the motion, explaining “the 
2

defense has in fact had every reasonable opportunity and incentive to make an adequate 

record for [defendant’s] eventual Youth Offender Parole hearing.” Defense counsel then 

asked for the court to allow defendant’s mother, aunt, and one or two of his brothers to 

speak on defendant’s behalf. The prosecutor objected.

Before ruling on defense counsel’s request to allow defendant’s family to present 

oral statements on his behalf, the trial court indicated its tentative conclusion was that the 

law authorized it to consider the probation report, comments from defendant, if he chose 

to make a statement under oath, and victim impact statements, but not statements from 

defendant’s family offered orally at the hearing.1 When the trial court asked for 

additional comment, defendant stated: “I don’t even want no Franklin. Just get this 

sentence over with. I don’t need no Franklin. I don’t need any of that. If the family 

gonna speak, let the family speak. Get it over with.” Defense counsel then stated: “I 

will file a subsequent packet, Your Honor, on that. But I will and am absolutely 

reserving to do that, despite [defendant’s] statement on the record.” The trial court then 

sentenced defendant. No Franklin packet was ever filed by defense counsel. 

B.

Ineffective Assistance of Counsel

A criminal defendant has the right to the assistance of counsel under both the Sixth 

Amendment to the United States Constitution and article I, section 15, of the California 

Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles the 

defendant not to some bare assistance but rather to effective assistance. [Citations.] 

Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting 

as his diligent conscientious advocate.’ [Citations.]” (Ibid.) The burden of proving a 

claim of ineffective assistance of counsel is squarely upon the defendant. (People v. 

1

I agree with the majority’s conclusion that the trial court was indeed authorized to 

hear from defendant’s family at a Franklin hearing. 
3

Camden (1976) 16 Cal.3d 808, 816.) “ ‘In order to demonstrate ineffective assistance of 

counsel, a defendant must first show counsel’s performance was “deficient” because his 

“representation fell below an objective standard of reasonableness . . . under prevailing 

professional norms.” [Citations.] Second, he must also show prejudice flowing from 

counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a 

“reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” ’ ” (In re Harris (1993) 5 Cal.4th 

813, 832-833, disapproved on another point in Shalabi v. City of Fontana (2012) 11

Cal.5th 842, 855; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 

693].) 

In Franklin, supra, 63 Cal.4th 261, our Supreme Court held that an offender like 

defendant, who will be entitled to a youth offender parole hearing in the future, must be 

given “sufficient opportunity to make a record of information relevant to his eventual 

youth offender parole hearing.” (Id. at p. 284.) Because Penal Code section 4801, 

subdivision (c) directs the Board of Parole Hearings (the Board) to “give great weight to 

the diminished culpability of youth as compared to adults, the hallmark features of youth, 

and any subsequent growth and increased maturity of the prisoner,” the court explained 

that the statutory scheme also “contemplate[s] that information regarding the [youth]

offender’s characteristics and circumstances at the time of the offense will be available at 

a youth offender parole hearing to facilitate the Board’s consideration.” (Franklin, at 

p. 283.) Assembling such information “is typically a task more easily done at or near the 

time of the [defendant’s] offense rather than decades later when memories have faded, 

records may have been lost or destroyed, or family or community members may have 

relocated or passed away.” (Id. at pp. 283-284.) Thus, the trial court must provide a 

youth offender with a sufficient opportunity to do so. 
4

Defendant argues his trial counsel “repeatedly acknowledged the Franklin

procedure, and repeatedly expressed his intention to file Franklin materials,” and his 

inexplicable “failure to follow through on his intention to file Franklin materials 

constitutes deficient performance.” The majority responds by speculating as to possible 

reasons defense counsel may have reasonably decided not to file Franklin materials. 

Perhaps there simply was no “evidence that would have . . . demonstrated a diminished 

level of culpability related to youth, cognitive immaturity, or any information concerning 

youth-related factors” for counsel to have provided on defendant’s behalf. (Maj. opn. 

ante, at p. 61.) The majority concludes that because “ ‘the record on appeal sheds no 

light on why counsel . . . failed to act in the manner challenged,’ ” and because there is a 

potentially “ ‘satisfactory explanation’ ” for counsel’s failure to file a Franklin packet in 

this case, defendant’s “claim of ineffective assistance is more appropriately made in a 

habeas corpus proceeding,” where defense counsel will be able to explain his reasons for 

not filing the packet. (People v. Wilson (1992) 3 Cal.4th 926, 936.) 

I am unpersuaded by the majority’s reasoning on this issue. The potentially 

satisfactory explanation relied on by the majority is essentially a perfect storm of 

imagined impediments. These include a lack of funding, unhelpful family members, 

obstruction by defendant himself, a lack of any relevant and helpful information relating 

to defendant’s youth, as well as fear on the part of defense counsel over a potential 

evidentiary objection that might have been made by the prosecution had counsel followed 

through with submitting the Franklin materials he promised to submit. 

I acknowledge support in the record for the first two, i.e., apparent funding issues 

and initial difficulty getting information from defendant’s family, specifically his mother, 

for purposes of preparing a baseline psychological assessment. But defense counsel 

expressed these problems at the conclusion of the January 11 proceeding. The trial court 

granted a continuance to February 8 to allow counsel more time to prepare the Franklin

packet. Then, on that date, still having filed no Franklin materials, counsel asked for 
5

another continuance, again noting the lack of funds for a psychological evaluation. But 

counsel also indicated he had obtained juvenile records he planned to provide to the 

person who would be performing such an evaluation and that defendant’s mother had 

given him “indicia” that he expected would be submitted as part of an eventual Franklin

packet. As set forth in greater detail above, further continuance was denied, defense 

counsel sought to present testimony from defendant’s family on the Franklin issue, which 

was also denied, and then counsel promised to file a subsequent Franklin packet. He 

never did so. 

While the funding issues raised by the majority might well explain why defense 

counsel could not submit a psychological evaluation as part of a Franklin packet, they do 

not explain counsel’s failure to submit anything at all. And while counsel’s apparent 

initial difficulty obtaining information from defendant’s family might explain his 

inability to prepare Franklin materials by January 11, this does not explain why he was 

unable to put something together by February 8, especially considering the fact that 

counsel indicated he had at least some information from defendant’s mother that he 

intended to include as part of a Franklin packet. He also indicated that he was in 

possession of juvenile records that he believed would be helpful to defendant in the 

preparation of a psychological evaluation. Thus, the record suggests defense counsel had 

at least some information that was relevant and helpful to defendant on the Franklin

issue. This conclusion is bolstered by the fact that after the trial court denied the 

requested continuance, counsel sought to have defendant’s family members testify at a 

Franklin hearing. Stated simply, if funding issues prevented defense counsel from 

obtaining the psychological evaluation he wanted, counsel should still have filed 

whatever information he did have. Indeed, he acknowledged as much when he promised 

to file a Franklin packet after sentencing. 

In an attempt to transform defense counsel’s failure to file the promised Franklin

packet into a rational tactical decision, the majority speculates that “defendant may have 
6

told his family not to provide any statements or otherwise cooperate and they complied 

with his request,” or “perhaps the ‘indicia’ defendant’s mother provided before the 

sentencing hearing (whatever that was) and statements that may have been collected postsentencing (if there were any) did not show immaturity or other youth-related factors,” or 

“possib[ly] . . . if counsel obtained statements post-sentencing, those statements hurt 

defendant, and defense counsel made a tactical decision not to submit them,” or “it could 

be that counsel thought the prosecution might object to the written statements from the 

family without the ability to cross-examine them in an effort to develop information that 

might be helpful to the prosecution at a youthful offender parole hearing.” (Maj. opn. 

ante, at p. 62.) I find this to be implausible for several reasons. 

First, in support of the plausibility of defendant’s imagined directive to his family 

not to cooperate with defense counsel, the majority reads defendant’s “I don’t even want 

no Franklin” statement to indicate that he did not want a Franklin packet filed on his 

behalf. The majority and I simply disagree as to the meaning of defendant’s statement. 

Viewed in context, I do not read defendant’s statement to indicate either that he believed 

his family did not have relevant and helpful information relating to his youth that might 

assist the Board in its consideration of his release during a future youth offender parole 

hearing, or that he did not want them to share such information with defense counsel. 

Instead, defendant was obviously frustrated and wanted his sentencing to be “over with.” 

As stated previously, defense counsel successfully delayed sentencing for almost three 

months in order to put together a Franklin packet and then unsuccessfully sought a 

further continuance because he still had not done so. It was after that continuance request 

was denied, and after the trial court indicated that it was tentatively denying counsel’s 

additional request to allow defendant’s family to provide Franklin-related testimony, that 

defendant stated “I don’t even want no Franklin. Just get this sentence over with.” While 

I agree this statement indicated that defendant did not want the Franklin issue to further 
7

delay his sentencing, it in no way indicated he did not want any Franklin materials filed

at all, let alone that he believed his family had no helpful information to provide. 

Second, while there is no support in the record for the majority’s speculation that 

the information defense counsel received from defendant’s mother was actually not 

relevant to the Franklin analysis, or that other information turned out to be harmful, the 

record does support what I believe to be the more plausible explanation for defense 

counsel’s failure: he simply neglected to do what he repeatedly said he would do. As set 

forth in greater detail above, defense counsel successfully requested to put off sentencing 

for 60 days so that he could put together a Franklin packet. He did not do so. Whether 

he tried to do so during that time is unclear, but there is no indication that counsel 

believed there was no relevant information to provide. Indeed, he asked for and received 

another continuance to put together the materials. He again did not do so. And again, he 

asked for a further continuance. This continuance was denied. However, far from 

indicating that he had no information to present, defense counsel asked the trial court to 

allow defendant’s mother, aunt, and siblings to provide this information orally. The 

prosecution objected, and the trial court denied this request, so we do not know what 

defendant’s family members would have said regarding his youth and immaturity at the 

time of the offense. But the fact that defense counsel wanted them to testify suggests 

they had something relevant to say in this regard. Moreover, even after defendant stated 

“I don’t need no Franklin,” defense counsel again indicated he was “absolutely” going to 

“file a subsequent packet.” Once again, counsel did not do so. After all of this, I find it 

baffling that the majority is willing to speculate that defense counsel might have had a 

reasonable explanation for filing nothing at all. 

I would hold defense counsel’s failure to file any Franklin materials in this case, 

after receiving two continuances for the purpose of doing so, and after explicitly stating 

on the record that he would file a Franklin packet after the sentencing hearing, amounted 

to deficient performance. The only reasonable explanation for filing nothing would be 
8

that defense counsel, after conducting a thorough investigation into the matter, was truly 

unable to uncover any information suggesting defendant’s youth and immaturity played a 

role in his commission of these offenses. I acknowledge it is theoretically possible that 

youthful immaturity had nothing to do with defendant’s decision to bring a loaded 

handgun to a house party and then use it to shoot the victim to death over a rap song. But 

unlike my colleagues in the majority, I find that theoretical possibility to be too 

implausible to require defendant to resort to habeas procedures to secure the relief he 

seeks. 

With respect to prejudice, it should be obvious that a defendant who is entitled to 

have information regarding his youth and circumstances at the time of the offense 

considered by the Board at a future youth offender parole hearing is prejudiced by the 

complete failure to file such information. As the Franklin court stated, this “is typically a 

task more easily done at or near the time of the [defendant’s] offense rather than decades 

later when memories have faded, records may have been lost or destroyed, or family or 

community members may have relocated or passed away.” (Franklin, supra, 63 Cal.4th 

261 at pp. 283-284.) The Attorney General also concedes that if deficient performance is 

established, “the prejudice prong would be satisfied” and “remand would be warranted to 

allow [defendant] an opportunity to present Franklin materials.”

For the foregoing reasons, I would remand the matter for the limited purpose of 

affording defendant an opportunity “to make a record of information relevant to his 

eventual youth offender parole hearing.” (Franklin, supra, 63 Cal.4th 261 at p. 284.) 

Defendant additionally requests that we issue an order directing the trial court to appoint 
9

counsel to assist defendant in filing Franklin materials. I would grant that request as 

well.

 /s/

HOCH, J.