Filed 8/11/ 22 P. v. Thompson CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. GREGORY JERMAINE THOMPSON, Defendant and Appellant. H04 4699 (Santa Clara County Super. Ct. No. C1 514611 )

I. INTRODUCTION In the early morning hours of June 27, 2015, Marvin Jackson, Jr. was shot and killed by an unknown assailant in downtown San Jose. Jackson had been out on the town with his
half

- bro ther, William Maynard, and several friends. Maynard had gotten into an argument
with the assailant and his associates within a half hour of the shooting. A jury found d efendant Gregory Jermaine Thompson guilty of the offense, convicting him of first deg ree murder (Pen. Code, § 187, subd. (a)) 1 and possession of a firearm by a felon (§ 29800, subd. (a)(1) ) , and finding true the allegation that he personally and intentionally discharged a firearm in the commission of the murder ( § 12022.53,
subd. (d))

. After a bifurcated court trial, the court found true the allegations that defendant had a prior juvenile strike adjudication (§§ 667, subds. (b)

- (i), 1170.12) and had served a

1 All further statutory references are to the Penal Code unless otherwise indicat ed

.2

prior prison term ( § 667.5, subd. (b)). T he court sentenced defend ant to 76 years to life , imposed various fines and fees , and ordere d victim restitution

. D efendant contends that the trial court violated his right to an impartial jury, equal protection, and due process when it improperly dismissed a prospective juror f or cause; the prosecutor committed misconduct when he partially told the fable of the scorpion and the frog during jury voir dire and the court erred when it denied defendant ’s mistrial motion
based on the misconduct; the court erred when it admitted ev ide nce of his brother’s w itness
intimidation and Facebook internet searches because the evidence was irrelevant and more prejudicial than probative; and the cumulative prejudice from the trial errors violated his right to due process. Regarding sentencing, d efendant claims that the prior prison term
enhancement must be stricken; remand is required to allow the trial court an opportunity to exercise its new discretion to strike the firearm enhancement or impose a lesser
enhancement ; the criminal justice admini stration fee was unauthorized; insufficient evidence supports part of the restitution order; the court erred when it imposed the fines and fees without determining defendant’s ability to pay and abused its discretion when it imposed the maximum restitution fine ; and the use of a prior juvenile adjudication as a
strike enhancement violated his right to a jury trial. Regarding almost all of the claims,
defendant contends that if the claim has been forfeited, he received ineffective assistance of
counsel. The Attorney General concedes that the prior prison term enhancement must be
stricken and that the case must be remanded to allow the court an opportunity to exercise its
discre tion to strike the firearm enhancement, and states that defendant may raise his inability to pay the fines and fees on remand. Regarding defendant’s remaining claims, the Attorney
General asserts that there was neither error nor prejudice.
For reasons th at we will explain, we will remand the matter for resentencing for the trial court to strike the prior prison term enhancement; to consider whether to exercise its discretion to strike the firearm enhancement or to impose a lesser enhancement; and to3

vacat e t he portion of the $129.75 criminal justice administration fee that remained unpaid as of July 1, 2021 . On remand, defendant may raise his inability to pay the fines and fees and his claim that he is entitled to the reimbursement of any portion of the c riminal justice administration fee that he has already paid because the fee was unauthorized.

II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
1. The Incident In the early morning hours of June 27, 2015 , Marvin Jackson, Jr. and his younger half

- brother , William Maynard , went to La Victoria Taqueria in downtown San Jose at the end of a night out

. Accompanying the brothers were Jackson’s girlfriend and two friends, Jordan Hayes and Theodore Syddall

. As the group left the restaurant around 2:12 a. m. , Maynard got into an argument with someone on the restaurant’s front steps. Maynard was
drunk. Another person joined in the argument . When the argument continued in to an alleyway , the group arguing with Maynard grew to six or seven people. Jackson got involved and tried to break it up. “ ‘Crip’ ” and “ ‘Blood’ ” were mentioned more than

once. Someone from the other group lifted his shirt and flashed a gun at Maynard. The
person with the gun said something l ike , “ ‘You don’t want these problems. Come around
the corner , ’ ” or, “ ‘Back up before you get blasted.’ ” Jackson trie d to calm everyone down
and keep the two groups away from each other. Jackson shook someone’s hand. The man with the gun remained te nse and upset. Jackson, Maynard, and the rest of their party headed toward their car. Maynard noticed that two members of the group were following them

— the man with the gun who was wearing a hoodie and another man. Maynard lost sight of them as he cont inued walking toward the car.4

Hayes and Syddall stopped in a parking lot to chat with some friends. Jackson and Maynard lagg ed behind

. At some point, Maynard began arguing with the two men. Jackson and Maynard approached the men and a fight ensued.
O ne of the men punched Maynard in the face . The other man came around with a
gun. Maynard saw a flash and heard three gunshot s. Syddall heard two gunshots

. The men
ran off. Maynard noticed Jackson on the ground bleeding from his head. Maynard saw that Jackson had been shot and tried to administer CPR. Maynard thought the person who shot Jackson was the same man who flashed the gun at him earlier because he was wearing the
same hoodie. Maynard did not see the shooter’s face and was unable to identify defendant
at trial.
Jackson died from a gunshot wound to the left side of his forehead . Jackson also had multiple blunt

- force injuries and a contusion on his left eye. A bullet fragment was

recover ed from Jackson’s brain.

2. Law Enforcement Investigation Police found two .380 caliber shell casings at the homicide scene at Second and San Carlos Streets. There was an intermittent blood trail approximately 80 feet long leading away from the scene

. Pol ice took several swabs of the blood tr a il.
Officers stopped Trevon Woods and Khalil Owens in the vicinity of the homicide because they matched the general description of the suspects. When neither man was
identified in an i n

- field identification procedu re , the men were released. Neither man had a
weapon or blood on his clothes

. Police gathered video surveillance footage showing the entrance to the taqueria. The footage showed defendant, Owens, Jessie Gulley, and Maynard arguing. Unlike defendant,
Ow ens was wearing a hoodie. According to Jackson’s father, Jackson did not know defendant, Owens, or Gulley.5

During an interview three days after the shooting, police showed Maynard
surveillance footage from the front porch of the t aqueria

. Maynard identified Owens as the
shooter. Owens was arrested and charged with Jackson’s homicide. Owens’s black hoodie tested negative for gunshot residue. At the conclusion of a police interview, Owens stated that defendant and Gulley were responsible f or the shooting. At some point, Hayes was interviewed by the police and gave a general description of the people arguing outside of the t aqueria with Maynard. Hayes was shown a photographic lineup. Hayes identified defendant as the person saying, “ ‘Ta ke it around the
corner.’ ” Police met with Maynard again on August 21, 2015, and asked Maynard what his
identification of Owens had been based on. Maynard stated that he identifi ed the shooter
based on his clothing. Maynard consistently said that the p erson who flashed a gun at him during the argument at the taqueria was the shooter. 2 Maynard was unable to identify defendant in a police lineup, telling the police that he had not seen him

. 3 The homicide detective assigned to the case conclu ded that th ere was no longer probable cause to believe that Owens was the shooter

. Police obtained an arrest warrant for defendant on September 4, 2015. Defendant was arrested in Marina on October 18, 2015. Defendant gave the arresting officer a San Jose address. A district attorney investigator listened to recorded jail calls between defendant and defendant’s brother, George Thompson. During a Februar y 2016 call, defendant told George that “the victim[’s] brother . . . doesn’t know the shooter by face, that’s why he didn’t pick me out of the line

- up.” Defendant relayed that Maynard stated that he knew the shooter’s clothing, which matched someone else ’s description, not defendant’s.

2 Maynard testified at trial that he was not sure if the person who flashed the gun was shooter.

3 In a subsequent police interview, Maynard confused defendant and Owe ns “as being the same person. ” At one point, Maynard identified Owens as the shooter in surveillance footage.6

The investigator executed a search warrant at defendant’s residence on August 2, 2016. The investigator found a bore brush used to clean handguns in a kitchen cabinet. Based on the brush’s size, the investigator opined that it could be used to clean a 9

- millimeter or .38, .357 , or .380 caliber gun. The parties stipulated that red

- brown stains were found on Jackson’s right hand. Jackson was the source of the major DNA profile developed from the stains. Gulley was a
po ssible contributor of the minor DNA profile developed from the stains. The parties stipulated that Gulley was the source of the DNA profile developed from the swabs of the blood trail leading away from the homicide scene. The parties stipulated regarding count 2 that defendant had previously been convicted of a felony.
3. Kha lil Owens ’s Testimony
Khalil Owens testified that he was with two friends at La Victoria Taqueria on the date of the shooting . At some point Owens heard an argument. When Owens heard the word, “ ‘Blood,’ ” he walked over to where the argument was occurr ing because he is a
Blood. Owens saw a verbal confrontation occurring between defendant, Gulley, Jackson, and Maynard. Owens had known defendant for about a year and Gulley for about six months to a year

. Gulley was a Crip. Defendant said, “ ‘My nigga ’s a Blood.’ ” Owens told Maynard to calm down, but he did not listen. Owens challenged Maynard to a fight. Maynard refus ed. Owens talked to Jackson and they shook hands. The argument eventually
ended. Owens did not see anyone pull a gun out.
Owens testified that Jackson and Maynard walked toward Second and Santa Clara
Streets. Owens went into a nearby Jack In The Box and then to Iguanas restaurant, on Third Street, where he saw defendant and Gulley talking outside the front gate. Defendant had a bulge on his hip. After a few minutes, defendant and Gulley left in the direction of Second
Street. Owens went back to Jac k In The Box and heard two gunshots.7

Owens ran toward the sound of the gunshots on Second Street. Owens saw Jackson on the ground with his girlfriend crying over him and two people he could not identify running away. Owens saw a gun on the ground.
Ow ens ran back toward the Jack In The Box to get his friend Trevon Woods

. Owens
told Trevon Woods, “ ‘Let’s go.’ ” As Owens and Trevon Woods were walking toward a
7

- Eleven, they were stopped by San Jose State police near a parking structure. The men

were released a fter they were not identified in an in

- field identification

. Owens stated that d uring a police interview, he lied when he denied that he had
information about the offense

. Owens was concerned about “ snitching. ” At some point Owens began to te ll the police some of the truth. Owens did not want to implicate anyone. Owens was released from custody on October 8.
Owens testified for the prosecution at the preliminary hearing. After his testimony,
he was threatened on Facebook. A photograph wa s posted of him testifying. “[U]nkind comments” were written after the photograph was posted and Owens was called a

“ ‘snitch.’ ” Owens was in custody on a 2014 robbery when he testified at trial. No promises were made to Owens in exchange for his testimony in this case. Owens had committed two robberies as a juvenile and was convicted in 2014 for the unlawful taking of a motor veh icle and the sale of marijuana.

4. Jessie Gulley ’s Testimony Jessie Gulley testified that he saw defendant at La Victoria Taqueria on the date of the shooting. Defendant was outside the restaurant with some friends. Defendant and Owens started talking t o Jackson’s girlfriend, thinking she was someone else. Things became heated, and defendant and Owens were yelling and arguing with Maynard. Other people joined in. Gulley heard someone say, “ ‘Blood

. ’ ” Gulley also heard Maynard call defendant a “ ‘bit ch.’ ” Gulley did not see a gun. Eventually the argument ended and people went their separate ways.8

Gulley stated that he subsequently found defendant , Owens, and two others arguing about the situation in front of Iguanas restaurant. Owens said, “ ‘Yo u let that fool call you a bitch,’ ” and, “ ‘You know what you got to do.’ ” Gulley told defendant it was not worth it. Gulley could see that defendant had a bulge on his hip and something black on his
waistband

. Defendant was mad. Defendant and the ot hers started walking back toward San
Carlos Street. Somewhere around Second and San Carlos Streets, Jackson and Maynard approached Gulley. Maynard asked Gulley, “ ‘What’s up,’ ” and threw a punch at him. Gulley punched Maynard, who fell. Jackson ran u p to Gulley and threw a punch at him. Gulley was about to punch Jackson in return when Jackson began to back up. Gulley looked over his shoulder and saw defendant with a gun out. Gulley grabbed the front of the gun and told defendant,

“ ‘Nah, nah.’ ” D efendant shot Gulley’s left hand. Gulley turned his back to defendant and ran. Gulley heard two more shots and turned to see Jackson on the ground with people around him. Gulley, who was bleeding, ran toward a McDonald’s. Gulley told defendant that h e had shot him. Defendant said, “ ‘You shouldn’t grab it.’ ” Gulley got into his car and defendant went across the street toward several businesses and a parking lot. Gulley testified that t he day after the murder, defendant told him that if he said anything, he would have a problem. Defendant said that he knew where Gulley and his family lived so “ ‘[his] best bet . . . is to leave it . . . as it is.’ ” Gulley was concerned by
what defendant said. Gulley testified that when he w as interviewed by the police he only partially told the truth. He did not tell them that he knew who the shooter was; he just said that it was a Black man in a black shirt or hoodie. Eventually Gulley told the police that he had been shot. Gulley has sc ars on his left hand from the entry and exit wounds.9

Gulley testified regarding video surveillance footage taken after the shooting. Gulley
stated that the footage showed him running and wrapping his jacket around his left hand
because he had been shot. Gulley identified defendant as the person running behind him in

t he footage and stated that at one point defendant could be seen on the footage putting the
gun away. Gulley stated that he was currently in custody o n this case and another case. Gulley was arrested in this case in July 2015. In May 2016, Gulley agreed to be interviewed by the prosecution about this case. No promises were made to him . Gulley entered into a plea agreement in this case in July 2016. In exchange for Gulley telling the tr uth and cooperating with the prosecution, Gulley would face a maximum sentence of five years eight months in this case

. Gulley had prior juvenile adjudications for making criminal threats and displaying a weapon.

5. Evidence of Witness Intimidation by Defen dant’s Brother George Thompson is defendant’s brother. George lived at the same address that defendant gave at the time of his arrest. George attended the preliminary hearing on March 8 , 2016

. George identified himself as “John” when a district attor ney investigator asked his name

.

a. Intimidation of Khalil Owens After the preliminary hearing, a photograph was posted on the George Thompson , Jr.
Facebook account of Owens testifying. The photograph was taken from the area where George had been seated during the hearing . The George Thompson, Jr. Facebook account commented on the photo, “ ‘Some snitch who on the stand testify.’ ” The account also posted a status update stating, “ ‘He got that ET Finger. Hashtag stop snitching.’ ” Other accounts posted comments on the photograph. Facebook records showed that the George Thompson , Jr. account searched for “ ‘Wizzy Going’ ” or “ ‘Wizzy , ’ ” which was Owen’s moniker, on April 5, 7, and 8.10 b. Intimidation of Sean Woods During a recorded jail call, George told defendant that he had seen “Brah” at the preliminary hearing. George said that he asked “Brah” what he was doing there and he responded that he had been subpoenaed. George told the person, “Don’t be showing up over here.” The person responded, “[N]ah man. I ain’t coming.” The prosecution had subpoenaed Sean Woods to testify at the preliminary hearing, but he failed to appear . Facebook records revealed that the George Thompson, Jr. account had searched for “ ‘Sean Woods’ ” three times the day before the preliminary hearing. George was subsequently arrested for the witness intimidation of Sean Woods.

c. Intimidation of Jessie G ulley Gulley testified on cross

- examination that before he was arrested, George told him,

“ ‘Long as you keep your mouth shut, I’ll make sure that your family’s good and everything’s good.’ ” Gulley also stated that he was in a physical fight with George about four years ago and believed George would have killed him but for the fact that someone stopped him. On redirect examination, Gulley testified that he was fearful about testifying because George knew a lot about his family and George was a leader of the “Crip from RTG” gang.
6. Additional Internet Searches on the Facebook Account An investigation into t he George Thompson Jr. Facebook account revealed that the
account had searche d for news stations at 3:37 a.m., 3:38 a.m., and 3:46 a.m. on June 27,
2015 , approximately an hour after the shooting. In the over 2,000 pages of records associated with the account, there was only one other search for news. The account searched for “ ‘Marvin Jackson Jr.’ ” at 6: 13 p.m. on June 29, 2015. The Mercury News had published an article on Jackson that morning . There were many other searches for “ ‘Marvin Jackson’ ” and “ ‘Marvin Jackson Jr.’ ” by the George11

Thompson, Jr. Facebook account on June 29. On July 3 , 2015 at 1:39 a.m., the account
conducted a search f

or Jackson in San Jose.
B. Defense Case
Rodrik Kalantarian testified that he was parked on Second Street in downtown San Jose on the night of the incident. While he was resting in his car, he s aw two groups shouting at each other

. Kalantarian heard what s ounded like a gun being loaded and saw a
gun. Kalantarian backed his car up. Kalantarian saw a man holding a gun in his right hand. The man was wearing a black baseball hat with some red on it, a black zipper ed jacket, and blue jeans. Kalantarian belie ved the man was Hispanic but he was not certain. The man holding the gun was in a group of three of four people. As Kalantarian was driving away he heard two gunshots. Some of the people involved ran past his car while he was trying to get out of the parking lot.
Victoria Koumarianos testified that she was waiting for her grandfather to get off
work in downtown San Jose around 1 :30 a.m. on June 27, 2015. Koumarianos heard two to three gunshots in the area of San Carlos and Second Streets. Two men ran in her direction, one of whom was wearing a white and black sweater. Another man wearing a white and black striped sweater ran n ear an office building. Someone else r an in the other direction toward San Jose State University; Koumarianos believed she saw a gun in the person’s
hand. Koumarianos told the police that the person with the gun was wearing a black hoodie.
Defense inve stigator Anne Fields testified that she tried to s ubpoena several witnesses, including Jonathan Chisolm and Trevon Woods. Fields stated that o n some of the surveillance footage showing La Victoria Taqueria and Jack In The Box, a man could be seen walking toward several utility boxes behind the Jack In The Box before going out of
view

. In addition to the utility boxes, there was also a dumpster and a cement hole in the ground with a lid behind the Jack In The Box.
San Jose Police Detective Raul Corral te stified that he believed only Gulley stated that the argument in front of La Victoria’s Taqueria pertained to a misunderstanding about12

two women wearing white dresses. And Gulley was the only witness to the shooting who stated that he put his hand on the gun. Detective Corral stated that in the surveillance footage of defendant running behind Gulley, defendant was holding a hat in his left hand.
Detective Corral testified that there was a utility hole near the Jack In The Box where Owens disappeared on the surveillance footage for a few seconds . Detective Corral did not search the hole, but it appeared that a gun could fit in it . There were also utility boxes in the

area where someone could discard an item. Detective Corral did not search the utility
boxes. Detective Corral stated that surveillance footage showed Owens going in the direction of the shooting

. T he footage also show ed Owens and Trevon Woods run by later, likely sometime after the shooting. Detective Corral testified that surveillance footage from the taqueria appears to show a verbal disagreement between defendant and Maynard. Defendant is wearing a hat. It looked from the video like Maynard was backing defendant up toward a van before
def endant walked away. In contrast to Maynard’s testimony, the video does not show Maynard backing up. At some point the video show ed Owens walking in the same direction

as Jackson and Maynard. Owens’s arm was outstretched . Owens is not seen on the footag e in the location again until he c ame back running toward the Jack In The Box

. Detective Corral stated that in his October 28, 2015 police interview, Maynard identified Owens as the shooter in video footage, which was consistent with his
June statement. By the October interview, defendant had been arrested and Owens had been
released. During the October interview, when there was a video still of defendant in front of him, Maynard stated that the shooter had stripes on his sleeves, which was consistent w ith
what defendant w a s wearing

. C. Procedural History
Defendant and Gulley w ere charged with first degree murder (§ 187, subd. (a);

count 1) , and it was alleged that they committed the offense for the benefit of, at the direction of, and in association wit h a criminal street gang (§ 186.22, subd. (b)(5)) and that13

defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subds. (b)

- (d)). Defendant was also charged with possession of a fir earm by a felon (§ 2 9 8 0 0, subd. (a) (1) ; count 2). It was alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)) and had a prior juvenile strike adjudication. Owens was not charged in this case. The gang allegations were subsequently dismissed. Gulley entered into a plea agreement with the prosecution, pleading guilty to accessory to murder (§ 32). A jury found defendant guilty of both counts and found the firearm allegation true. At a court trial on the prior prison term and strike allegations, the court dismissed one of the prior prison term allegations at the prosecution’s request and found the r emaining allegations true. The trial court denied defendant’s Romero 4 motion to strike the prior strike allegation. The court sentenced defendant to 76 years to life as follows: 25 years to life on

count 1, which the court doubled pursuant to the Thre e Strikes law ; 25 years to life for the
firearm enhancement ; and one year for the prior prison term enhancement. The court imposed a concurrent four

- year term on count 2. The court imposed various fines and fees
and order ed defendant to pay $13,083 in vi ctim restitution.
III. DISCUSSION
A. Excu sal of a Prospective Juror for Cause Defendant contends that the trial court violated his Sixth Amendment right to an impartial jury and his Fourteenth Amendment rights to equal protection and due process
when it excus ed a prospective juror for cause. Defendant argues that the court abused i ts discretion and improperly found cause to excuse the prospective juror based on his concern that Black defendants are treated unfairly by the criminal justice system

. Defendant asserts ,

4 People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497.14

“The court’s ruling, if viewed on a systemic level, was problematic in that it would potentially eliminate jurors who recognize racial bias and have concerns regarding it.”
Defendant further contends that if his counsel failed to preserve the issue for review, she rendered constitutionally ineffective assistance. The At torney General contends that the dismissal of a prospective juror for cause does not constitute reversible error and that, in any
event, the issue has been forfeited and defendant has not demonstrated that his counsel was constitutionally deficient.

1. Trial Court Proceedings During voir dire, the court asked the prospective jurors whether they would have trouble following the instruction that punishment cannot be considered in their deliberations. Prospective juror Y.B. responded, “I think . . . it matters to me . . . [¶] . . . [¶] . . . to know whether the person’s guilty or not guilty, what will happen

. . . on my judgment . . . . I want to know what’s going to happen if I take one position or the other.” The court explained that jurors determine the fa cts and that punishment cannot be considered because it has no
relevance in the determination of what occurr ed. T he court asked Y.B. if he could leave the punishment up to the court and just consider the facts , and Y.B. responded, “Would be very
hard , ” an d that he “need[ed] to understand the circumstances around the crime.” During subsequent individual questioning where the prospective jurors answered a set of questions , Y.B. stated that he could not answer question No. 10, which appears to
have been whether he could be a fair and impartial juror. When the trial court asked him why he could not answer the question, Y.B. stated , “Because I believe everybody come with different bias, even the judge, even the police off icers. And I’m no different.” He then
stated that he was “willing to listen . . . to the arguments” and that he had his “own beliefs.” Y.B. relayed that when he was a student in Berkeley, he had an experience where an officer asked him for his driver’s license. When Y.B. reached for his license in the inside pocket of his jacket, the officer reached for his gun. Y.B. stated, “If I had been [B]lack, I would be dead.” Y.B. said that “[t]his is [his] perspective” and “is something that mark[ed] [him].”15

Y.B. stated that he would listen to police officers’ testimony, “[b]ut you need to understand I come in with that background.” The court asked Y.B. if he believed that police officers have an inherent bias against Black people. Y.B. responded, “No.” Th e court asked if Y.B. would be able to listen to the officers’ testimony and not hold his experience against them. Y.B. responded, “I will listen.”
The court asked Y.B. , “So do you think that the system

-- just overall

-- there’s no way for us to be fair to [defendant] because he’s [B]lack?” Y.B. answered, “It is difficult. I mean, the data shows it’s difficult all around the nation. If you are an analytical kind of guy, if you look at the data over . . . the nation, it is difficult for a [B]lack perso n to get a fair trial in U.S., the outcome. ” When the court asked if Y.B. meant statistically, Y.B. said, “They are convicted at a higher rate.” The court asked whether Y.B. thought the conviction rate was “automatically due to . . . bias in the system? ” Y.B. responded, “It could be.” The court asked, “Could it be other things?” Y.B. answered, “Could be.” The court asked, “[S]o how would we ever have a trial for a [B]lack person, then?” Y.B. responded, “I’m not a judge. Sorry.”
Defense counsel la ter had the opportunity to question Y.B. outside the presence of the other prospective jurors. Defense counsel asked Y.B. whether he would not be a good juror because he did not think that a Black person would get a fair trial. Y.B. stated that “[w]hat [ he] said is what [he] know[s] from the facts”; that it was his general perspective; that he did not see many Black people in the jury pool; and that “[t]here might be a bias there against a [B]lack defendant.” When counsel asked Y.B. whether “in a persona l situation” he listened to all the facts and made a decision based on the facts alone , Y.B. responded that he was not “the judge of deciding the sentence,” but “maybe the defendant is guilty and the facts will prove he’s guilty. I’m sorry, but I want to

-- my judgment of

-- of guilty will be influenced with the sentence meaning [¶] . . . [¶] I want to do more than just being a judge

-- me being a jury. [¶] . . . [¶] I don’t want to be just saying, ‘This person

--16

yeah, the data is he’s guilty,’ and not worry about what can happen to the person.” Y.B.
added that he was concern ed that he “would, even after the trial, not get the sufficient information to make a conclusion.” Defense counsel stated, “Well, I think the judge is going to excuse you. But, from my position, it’s jurors like you that we need on the jury venire. That’s all I have to say. Because you’re being critical, and you’re waiting for the evidence, and you’re not going to make a decision unless you hear all the evidence. [¶] So I’m s orry that you’re being excused. I actually think you’d be a very good juror. I think that you would know everything.” The court interjected that defense counsel’s statements were an “improper [¶]

. . . [¶] comment” and tol d counsel that she could put an objection on the record. The court stated that it was going to excuse Y.B. because he had “made very
clear

. . . that he does not believe that [defendant], as a [B]lack man, would get a fair trial in the American justice system” and that “h e was resistant to being a juror given the fact that he does not have any say in sentencing.” Defense counsel stated, “And, your Honor, part of the reason I made the comments was because I didn’t want the juror to think that I was attacking him, because I felt like some of my questions might have been a challenging way [ sic ] . So I was trying to explain to him that I was not being challenging.” The court thanked Y.B. and told him that he was
excused.
2. Forfeiture
In People v. Holt (1997) 15 Cal.4 th 619, 658 ( Holt ) , the California Supreme Court held that “ an objection must be made if a claim of error in excusing the juror [for cause] is to be preserved for appeal. ” (See also People v. Gutierrez (2009) 45 Cal.4th 789, 805 ( Gutierrez ) [“ By failing to object , [the] defendant forfeited his claim that the trial court erred in excusing Prospective Juror F.K. for cause , ” including that the excusal violated the defendant’s Sixth and Fourteenth Amendment rights to a fair trial ].) The court stated that “[t] he reaso n for such a rule is apparent. We cannot assume that a party who fails to object17

to the excusal of a juror wants to have that juror on the panel. Taking a neutral position as defendant did here may be a tactical choice. If the juror is excused, the defendant need not use a peremptory challenge to remove the juror. Having made that choice the defendant should not be heard to complain on appeal that excusing the juror was reversible error

. ” ( Holt , supra , at p. 657 )

. “ Th e requirement of a contemporaneous and specific objection promotes the fair and correct resolution of a claim of error both at trial and on appeal, and thereby furthers the interests of reliability and finality. ” ( Ibid. ) Based on the record before us, we conclude that defendant’s claim has been forfeited. Although defense counsel stated that she was sorry that Y.B. was being excused and thought
that he would be “a very good juror , ” would “wait[] for the evidence,” and would “not . . .
make a decision unl ess [he] hear[d] all the evidence,” counsel did not st a t e a legal objection

to Y.B.’ s excusal despite that the trial court explicit ly told counsel that she “can put an objection on the record.” Rather, defense counsel stated that “part of the reason [she] made
the comments was because she did not want Y.B. to think [she] was attacking him” and she
wanted “ to explain to him that [she] was not being challenging. ” Defendant argues that counsel’s statements were “adequate because [they] gave the trial court a fair opportunity to rule.” Importantly, however, defendant did not claim in the trial court, as he does here, that Y.B.’s responses were statements of fact, not expressions of actual bias, and that ther e was no evidence of bias to justify the excusal. Rather, defense counsel stated to Y.B. that “it’s jurors like you that we need on the jury venire. . . . Because you’re being critical, and you’re waiting for the evidence, and you’re not going to make a decision unless you hear all the evidence. ” Nor did defendant contend below that the excusal violated his Sixth and Fourteenth Amendment rights. “[D] efendan t’ s failure to make a timely and specific objection on the ground [s] he now raises forfeits the cl aim on appeal. ” ( People v. Pearson (2013) 56 Cal.4th 393, 416.)
Defendant asserts that the error was structural and cannot be forfeited. However, the California Supreme Court “ ha [s] rejected ‘ [the] assumption that an error in excusing a juror18

for reasons unrelated to the [juror ’ s] views on imposition of the death penalty requires
reversal. “ [T]he general rule [is] that an erroneous exclusion of a juror for cause provides no basis for overturning a judgment. ” [Citation.] ’ [Citation.]” ( People v. Tate (2010) 49 Cal.4th 635, 672 .)
For these reasons , we conclude that defendant’s claim that the trial court erred when it excused Y.B. for cause has been forfeited. (See Holt , supra , 15 Cal.4th at pp. 656

- 658 ; Gutierrez , supra , 45 Cal.4th at p. 805.)

3. Ineffective Assistance of Counsel
Defendant contends that if his claim that the trial court erred when it excused Y.B. for cause has been forfeited, his counsel provided constitutionally ineffective assistance. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his or her counsel’s performance was deficient and that he or she suffered prejudice. ( Strickland v. Washington (1984) 466 U.S. 668, 687 ( Strickland ).) The deficient performance compon ent of an ineffective assistance of counsel claim requires a showing that “counsel’s representation fell below an objective standard of reasonableness” under prevailing professional norms. ( Id. at p. 688.) “When a claim of ineffective assistance is
made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]” ( People v. Anderson (2001) 25 Cal.4th 543, 569 ( Ander son ).) Regarding prejudice, a “defendant must show that there is a reasonable probability”

— meaning “a probability sufficient to undermine confidence in the outcome”

— “that, but for counsel’s unprofessional errors, the result of the proceeding would have be en different.” ( Strickland , supra , at p. 694.) Prejudice requires a showing of “a ‘ “demonstrable reality,” not simply speculation.’ ” ( People v. Fairbank (1997) 16 Cal.4th 1223, 1241 ( Fairbank ) .) Here, the record is silent regarding why counsel did n ot object to Y.B.’s excusal for

cause and thus “affords no basis for concluding that counsel ’ s omission was not based on an informed tactical choice.” ( Anderson , supra , 25 Cal.4th at p. 569.) Reversal on direct19

appeal for ineffective assistance of counse l is warranted 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 explanati on.” ( People v. Mai (2013) 57 Cal.4th 986, 1009 ( Mai ).) None of
those criteria is met here.
A s the court suggested in Holt , perhaps counsel determined that Y.B.’s excusal was
favorable , despite her comments to Y.B. to the contrary, and would eliminate the need to

use a peremptory challenge against him

. (See Holt , supra , 15 Cal.4th at p. 657 ; cf. People v.
Lenix (2008) 44 Cal.4th 602, 622

- 624 [discussing the complexity and fluidity of jury
selection in the context of a Batson / Wheeler 5 claim] .) Or perhaps counsel understood that
Y.B.’s reluctance to decide the facts without consideration of punishment made him properly subject to excusal for cause. “Counsel is not required to proffer futile objections

. ” ( Anderson , supra , 25 Cal.4th at p. 587 .) 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

. ) It is settled that jurors may not consider a defendant’s possible punishment or “the consequences of their verdicts.” ( Shannon v.
United States (1994) 512 U.S. 573, 579; People v. Honeycutt (1977) 20 Cal.3d 150, 157,
fn. 4; CALCRIM No. 200

. ) Throughout voir dire, Y.B. consistently voiced his desire to know what would happen to defendant if he was found guilty and stated at the conclusion of his questioning that he was “not taking the position of the judge . . . of de ciding the
sentence. But to me

-- m aybe the defendant is guilty and the facts will prove he’s guilty. I’m sorry, but I want to

-- my judgment of

-- of guilty will be influenced with the sentence meaning [¶] . . . [¶] I want to do more than just being a judge

-- me being a jury. [¶] . . . [¶]

5 People v. Batson (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.20

I don’t want to be just saying, ‘This person

-- yeah, the data is he’s guilty,’ and not worry about what can happen to the person.” Moreover, defendant has failed to establish “a reasonable probability that

. . . the result of the proceeding would have been different” had counsel objected to Y.B.’s excusal. ( Strickland , supra , 466 U.S. at p. 694.) Defendant asserts solely that “the error was prejudicial . . . since an appropriate objection would have kept this ju ror on the panel and avoided any concerns among the jury pool by seeing this juror removed without cause.” However, Y.B. was questioned, in part, outside of the other prospective jurors’ presence and was excused outside of their presence, so the jury pool did not “see[] [him] removed without

cause , ” and would have had no basis to conclude as such. And the impanel ed jury was instructed that it must decide the facts “based only on the evidence” presented at trial. We presume that the jury followed the court’s instruction s

. ( People v. Flinner (2020) 10 Cal.5th 686, 717 ( Flinner ) .) Because defendant’s prejudice contention is essentially speculative, it must be rejected. ( See Fairbank , supra , 16 Cal.4th at p. 1241. )
B. Prosecutorial Misconduct During Voir Dire and Failure to Grant a Mistrial
Defendant contends that during jury voir dire the prosecutor committed misconduct and violated his Sixth and Fourteenth Amendment rights when he told the prospective ju rors
par t of the fable of the scorpion and the frog while he explain ed that he was not require d to prove motive. Our colleagues in the Second District have summarized the fable as follows:

“ There is a fable about the frog and the scorpion. It stresses the scorpion will sting, no matter what, because that is in its nature

. ” ( People v. Del Rio ( 2020 ) 54 Cal.App.5th 47 , 54 ( Del Rio ) ; see also In re Las Vegas Monorail Co. (Bankr. D.Nev. 2010) 429 B.R. 317, 338,
fn. 37 [detailed recounting of th e fable].) Defendant argues that the prosecutor’s use of the fable was improper because it was a character argument and was racially discriminatory.
Defendant further contends that the trial court erred when it denied hi s request for a mistrial
and that the failure to grant a mistrial violated his Sixth and Fourteenth Amendment rights.21

The Attorney General contends that defendant has not shown a reasonable likelihood
that the jury understood the prosecutor’s comments as permitting it to convict defendan t based on rac e and that the court did not abuse its discretion when it denied defendant’s
mistrial motion.

1. Trial Court Proceedings During voir dire, the prosecutor explained that he did not have to prove motive and asked certain prospective jurors wheth er they could convict without motive evidence if he proved the case beyond a reasonable doubt. All of the prospective jurors questioned
indicated that they could follow the law on motive

. The prosecutor then stated, “So there’s

. . . a story of a scorpion and a frog,” and asked a prospective juror if she knew the fable. The prospective juror responded affirmatively. The prosecutor continued, “Okay. So it’s the scorpion goes up to the frog right before he wants to cross the river .” Defense counsel asked to approach. The court stated, “No, you don’t need to approach. I’m going to not allow that.” The prosecutor acknowledged the court’s ruling and moved on.
D efense counsel moved for a mistrial when the prospective jurors were i n recess

. Counsel asserted, “I believe that [the prosecutor], by bringing up the frog and the scorpion joke has poisoned the jury pool, for those of them who have heard it, because the punch line is ‘It’s in his nature.’ [¶] So I’m not sure exactly what he was going for, but it seems to me that it could imply that he was going to try to say that it was in [defendant’s] nature to do
whatever it is that he did. And I think that

. . . there were some [prospective jurors] that said, yes, they know the joke. [¶] And I find it inappropriate. And I

. . . can’t even speculate as to where he was going, but I think the damage may have already been done, because that’s going to be in the minds of the jurors who heard and know the joke.”
The court denied the mi strial motion, observ ing that the prosecutor had been prevented from tell ing the entirety of the fable and that t he fable was mentioned during the
discussion on motive

. The court stated that it assumed defendant was going to object when
counsel asked for a sidebar and that it sustained the presumed objection because the fable22

“does have a character evidence aspect to it. [¶] But the jury didn’t hear it. It was in the context of motive or lack of motive, which is certainly a lesson also to be taken from that story. So I . . . don’t think it’s in any way sort of poisoning the well of the jury. So I’m going to deny that motion.”

2. Prosecutorial Misconduct Defendant contends that the prosecutor’s partial telling of the scorpion and the frog fable during vo ir dire was improper in two respects: (1) it was a character argument ; and (2) it was racially discriminatory

.

“ A prosecutor ’ s conduct violates the federal Constitution when it infects the trial with unfairness, and violates state law if it involves the use of deceptive or reprehensible methods of persuasion. [Citation.] To preserve a misconduct claim for appellate review, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the remark (or conduct) unless s uch an admonition would not have cured the harm. [Citation.] When the claim focuses on the prosecutor ’ s comments to the jury, we determine whether there was a reasonable likelihood that the jury construed or applied any of the remarks in an objectionable fashion. [Citation.]” ( People v. Booker (2011) 51 Cal.4th 141, 184

- 185 ( Booker ) .) “ ‘ In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor ’ s statements. [Citation.]’ [Citations.]” ( People v. Centeno (2014) 60 Cal.4th 659, 667 ( Centeno ).) Because defendant did not request an admonition when the prosecutor partially told the scorpion and the frog fable, hi s prosecutorial misconduct claim ha s been waived. ( See
Booker , supra , 5 1 Cal.4th at p. 184; People v. Medina (1995) 11 Cal.4th 694 , 740 ( Medina ) [forfeiture rule applies to claimed misconduct during jury voir dire] .) Although defendant baldly asserts that an admonition would not have cure d the prejudice from the comments, the prosecution’s statements were limited to, “there’s a story of a scorpion and a frog,” and, “it’s the scorpion goes up to the frog right before he wants to cross the river.” Given the
trial court ’s interruption of the prosecutor early in his recitation of the fable , the court’s23

statement that it “ [ would ] not allow that,” and that the comments occurred during voir dire , which is “ ‘ a much less critical phase of the proceedings ’ ” ( Medina , supra , at p. 741), we conclude that any prejudice from the comments c ould have been cured by an admonition.
But even if defendant’s prosecutorial misconduct claim ha d been preserved, we
would find no reversible error. Regarding defendant’s federal constitutional rights, we
determine that t he limited comments were not “ ‘ “ ‘so egregious that [they] infect [ed] the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] ” ( People v. Ledesma (2006) 39 Cal.4th 641 , 726 .) The voir dire comments “ ‘ did not comprise a pattern of egregious misbehavior making the trial fundamentally unfair. ’ ” ( People v. Winbush ( 2 017 ) 2 Cal. 5 th 402 , 484 ; see also People v. Forrest (2017) 7 Cal.App.5th 1074, 1085

- 1086 [to constitute a denial of due process, “ ‘ “ it is not enough that the prosecutor ’ s remarks were undesirable or even universally condemned ” ’ ”] .) Regarding whether the comments were improper under state law , a prosecutor commits misconduct when he or she misleads the jury on the law ( s ee People v. Hill (1998)
17 Cal.4th 800 , 845 ), and California law generally disallows the use of character evidence (see Evid. Code, § 1101, subd. (a)). But a s the trial court ob served when it denied the mistrial motion, the prospective jurors did not hear the character aspect, or “ moral, ” of the scorpion and the frog fable because the court halted the prosecutor’s recitation of the story before he got to it

. Nonetheless, the cou rt and counsel inferred from the prosecutor’s
remarks that the prosecutor’s reference to the fable appear ed to have been an attempt to suggest that a lack of motive could be explained by nature or character. To the extent the prospective jurors understood the prosecutor’s statements to mean that the law allow s the consideration of character evidence, the comments were improper. (See Del Rio , supra , 54 Cal.App.5th at p. 54 [“ The character evidence rule bans th [e] kind of evidence ” discussed in the scorpion and the frog fable].) Defendant contends that the comments were also improper because they were racially discriminatory and racially charged. Defendant argues that the prosecutor’s use of24

the fable “continues a long history of [B]lack defendants being dehumanized by animal imagery.” 6 To be clear, “ a prosecutor may not compare a defendant to a beast for the purpose of dehumanizing him [or her] before the jury or in an effort to evoke the jury ’ s racial biases. ” ( People v. Powell (2018 ) 6 Cal.5th 136 , 183.) Here, t he prosecutor’s exact word s were ,

“ there ’ s a story of a scorpion and a frog , ” and , “ it’s the scorpion goes up to the frog right
before he wants to cross the river

. ” We are mindful that “ ‘ w e “do not lightly infer” that the j ury drew the most damaging rather than the least damaging meaning from the prosecutor’s
statements’ ” and that there must be “a reasonable likelihood the jury understood or applied the complained

- of comments in an improper or erroneous manner .” ( Centeno , supra , 60
Cal.4th at p. 667

. ) W e are also mindful that prospective jurors arrive at voir dire with varied life experiences that may influence how such comments are perceived. Defendant argues
that s ome of the prospective jurors may have been familiar with the fable, and that those
familiar with it may have interpreted t he prosecutor’s comments to be race based. We agree that some jurors who were familiar with the fable, based on their lived experiences and perceptions, co uld have believed it was race based. However, because the recitation of the fable was incomplete , and absent a record establishing the breadth of juror familiarity with

6 Defendant points to section 745, which was added to the Penal Code pursuant to the Legislature’s recent passage of the California Racial Justice Act of 2020 ( Stats. 2020, ch. 317 , § 3.5 ) , but correctly concedes that it does not a pply retroactively to this case (see § 745, subd. (j) [section 745 “ applies only prospectively in cases in which judgment has not been entered prior to January 1, 2021 ”]). Section 745 provides that “[t] he state shall not seek or obtain a criminal convict ion

. . . on the basis of race . . . .” (§ 745, subd. (a).) “A violation is established if the defendant proves, by a preponderance of the evidence ” that an attorney “ used racially discriminatory language about the defendant ’ s race,

. . . or otherwise ex hibited bias or animus towards the defendant because of the defendant ’ s race

. . . whether or not purposeful .” ( Id. , subd. (a)(2).) “ ‘ Racially discriminatory language ’ means language that, to an objective observer, explicitly or implicitly appeals to ra cial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal , or language that references the defendant ’ s physical appearance, culture, ethnicity, or national origin. ” ( Id. , subd. (h)(3).)25

the fable, it would be mere speculation whether “there was a reasonable likelihood tha t the jury construed or applied any of the remarks in an objectionable fashion.” ( Booker , supra , 51 Cal.4th at pp. 184

- 185.) Nevertheless, c ourts and counsel must be aware of explicit and implicit racial biases. “The Legislature has acknowledged that al l persons possess implicit
biases [citation] , that these biases impact the criminal justice system [citation] , and that negative implicit biases tend to disfavor people of color .” ( Stats. 2020, c h . 317 , § 2,
subd. (g) .) We s trongly encourag e judicial off icers and counsel to be vigilant in their efforts to ensure compliance with the Racial Justice Act and the provision of fair trials.
After careful review of the record , we conclude that defendant has not demonstrated prejudice as it is not “ reasonably probable the trial outcome was affected. ” ( People v. Shazier (2014) 60 Cal.4th 109, 127 ( Shazier ) .) “[A] s a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury’s
verdic t in the case. Any such errors or misconduct ‘prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings, before its attention has even begun to focus upon the . . . issue[s] confront ing it.’ [Citation.]” ( Medina , supra , 11 Cal.4th at p. 741.) Further, t he prosecutor’s comments occurred during a discussion on motive and the prosecutor was interrupted before he reached the character aspect of the fable, leaving his comments quite a mbiguous for those unfamiliar with the story. A nd the trial court clearly
announced that it would “ not allow” the fable. Once impaneled , the jury was instructed “not [to] let bias, sympathy, prejudice or public opinion influence [its] decision.” During the instructions at the conclusion of the evidence, t he jury was told that the attorneys’ comments

we re not evidence; that it must decide the case based solely on the evidence; and that it could “not . . . let bias, sympathy, prejudice, or public opinion i nfluence [its] decision,”
includ ing “bias for or against the witnesses, attorneys, defendant, or alleged victims based on disability, gender, nationality, national origin, race or ethnicity, religion, gender identity, sexual orientation, age, or socioecono mic status.” We presume that the jury followed the26

court’s instructions. ( Flinner , supra , 10 Cal.5th at p. 717.) Thus, we determine that it is not

“ reasonably probable the trial outcome was affected ” by the prosecutor’s remarks. ( Shazier , supra , 60 Cal.4th at p. 127.) For all of these reasons, we conclude that the prosecutor did not commit reversible

error during his discussion of motive in jury voir dire when he stated that “there’s a story of a scorpion and a frog,” and, “it’s the scorpion goes up to the frog right before he wants to
cross the river

. ”

3. Denial of Mistrial Motion
Defendant contends that based on the seriousness of the prosecutor’s misconduct, the
trial court abuse d its discretion when it denied his motion for a mistrial. Def endant asserts
that the racially charged and discriminatory language could “[not ] help but infect the entire trial, and there was no cure for the prejudice engendered by th[e] comparison” of defendant to a scorpion.

“ ‘ A court should grant a mistrial “ ‘ only when a party ’ s chances of receiving a fair trial have been irreparably damaged. ’ ” [Citation.] This generally occurs when “ ‘ “ ‘the court is apprised of prejudice that it judges incurable by admonition or instruction. ’ ” ’ ” [Citation.] We review the trial court ’ s refusal to grant a mistrial for abuse of discretion. ’ [Citation.]” ( People v. Wright (2021) 12 Cal.5th 419 , 447. ) “ ‘ “ Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. ” ’ ” ( People v. Schultz (2020) 10 Cal.5th 623, 673 ( Schultz ).)
We conclude that the trial court did not abuse its discretion when it denied the
mistrial motion. As we stated abo ve and as the court observed when it denied the mistrial motion, the prospective jur ors did not hear the character aspect of the scorpion and the frog
fable from the prosecutor’s comments, “there’s a story of a scorpion and a frog,” and, “it’s the scorpion goes up to the frog right before he wants to cross the river , ” because the court halted the prosecutor’s recitation of the story. The prosecutor’s limited remarks were such27

that defense counsel stated that she was “not sure exactly what he was going for , ” although it seemed “he was going to try to say it was in [defendant’s] nature.” Nor did the prospective jurors hear a comparison of defendant to the scorpion. The remarks occurred during voir dire, “a much less critical phase of the proceedings” ( Medin a , supra , 11 Cal.4th at p. 741), a nd the court clearly signaled that the telling of the fable was “not allow[ed].” The day after the comments, the court instructed the impanel ed jurors, “Your verdict must be based only on the evidence presented during tri al in this court and the law as I provide it to you”; “ Evidence include [s] witness testimony and exhibits ”; and “Do not let bias , sympathy, prejudice, or public opinion influence your decision.” Thus, based on the brevity and vagueness of the prosecutor’ s comments, the fact that
the statements were made during voir dire, the trial court’s disallowance of the fable, and the court’s instructions to the impanele d jury the following day, we determine that the court
did not abuse it s “ ‘ “considerable discretion ” ’ ” when it implicitly found that defendant’s chances of receiving a fair trial ha d not been “ ‘ irreparably damaged ’ ” by the prosecutor’s
statements and denied the mistrial motion. ( Schultz , supra , 1 0 Cal.5th at p. 673

. )
C. Evidence of George’s Intimidation of Sean Woods
Defendant contends that the trial court abused its discretion when it admitted evidence that defendant’s brother George intimidated prospective witness Sean Woods. Defendant argues that the evidence was irr elevant and more prejudicial than probative.
Defendant further asserts that the evidence was so inflammatory that it violated his Fourteenth Amendment right to due process. The Attorney General contends that defendant’s claim has been forfeited and that the court did not abuse its discretion when it admitted the evidence because it was probative of Owens’s and Gulley’s credibility and not particularly prejudicial.

1. Trial Court Proceedings The prosecution moved in limine to present evidence of a recorded jail call between defendant and George the night after defendant’s preliminary hearing

. The prosecution28

asserted that Woods had been subpoenaed to testify at the preliminary hearing but did not
appear. The prosecution state d that d uring the jail call, George said that “ ‘bro’ ” showed up at the preliminary hearing and George to ld him, “ ‘[D]on’t be showing up over here.’ ” The prosecution contended that the evidence “is consistent with the other forms of witness
intimidatio n that George . . . has engaged in”; the evidence was “highly relevant”; and the evidence “shows [d]efendant’s complicity in the witness intimidation” because at no point did defendant tell George that he should not have done i t. During the hearing on th e in limine motion, the prosecution stated that it had been informed by Woods’s counsel that Woods would refuse to testify at trial . The prosecution relayed that when Woods was arrested in January 2016 in an unrelated case , he told the police that defenda nt made an admission to him about his role in the homicide. Woods was subpoenaed for the preliminary hearing but was the only witness who failed to appear. The prosecution stated that George’s witness intimidation pertained to witness es’ credibility and that it was not asking for it to be admitted as evidence of defendant’s guilt

. Defen dant stated that the jail call had just been disclosed the afternoon before t he hearing and that there was no evidence that he had asked George to do anything.
The cour t ruled that it would allow the evidence of George’s intimidation of several witnesses including Woods

. The court stated that if there was a n in sufficient connection between George’s conduct and defendant, it would instruct the jury that the evidence pertained to the credibility of the witnesses subject to the intimidation and that the jury was “not to use it against [defendant].”
Defendant subsequently filed a motion in limine objecting to the evidence of George’s witness intimidation , including his intimidation of Woods . Defendant argued that the evidence was not admissible to rehabilitate a witness’s credibility and that even if it were, its probative value was far outweighed by its prejudicial effect

. In response to defendant’s motion, t he court maintain ed its previous ruling that the prosecution could present the evidence of witness intimidation. The court stated that absent29

any indication that the conduct was connected to defendant, it intended to instruct the jury that it was not to consider the evidence for any purpose other than “the effect it has on the persons testifying who are aware that there has been efforts towards witness intimidation.” The prosecution did not call Woods as a witness at trial

. 7 The prosecution presented evidence at trial that Woods was subpoenaed to testify at the preliminary hearing but failed to appear. During an investigator’s testimony, defendant objected to the prosecutor’s question asking the investigator why he was at the preliminary hearing. A bench conference was held off the record. The prosecution then asked if the investigator was at the hearing to provide security for Owens, an d the investigator said yes. Later during the investigator’s testimony, e vidence was admitted that in a jail call in March 2016, George told defendant that he had attended the preliminary hearing. George stated that he had seen “Brah” at the hearing. G eorge s aid that he asked the person what he was doing there and the person responded that he had been subpoenaed. George told the person, “Don’t be showing up over here.” The person responded, “[N]ah man. I ain’t coming.” George was subsequently arrest ed for the witness intimidation of Sean Woods. Evidence was also admitted that on the date Woods was subpoenaed for the preliminary hearing, George Thompson’s Facebook account searched for “ ‘Sean Woods’ ” approximately three times.
After both sides rested, the court included in its instructions to the jury the following pinpoint instruction : “You have heard testimony regarding conduct associated with George Thompson and others attempting to influence Khalil Ow[en]s and/or Se[a]n Woods as potential witnesses in this matter. There has been no evidence presented linking this

7 During an Evidence Code section 402 hearing outside the presence of the jury, Woods invoked his Fifth Amendment privilege against self

- incrimination in response to the prosecution’s questions and was granted use immunity at the prosecution’s request. Wo ods then testified at the hearing that he lied to the police about his conversation with defendant and that defendant did not make statements to him regarding a murder in downtown San Jose. Woods also stated that he did not remember talking to George at t he preliminary hearing.30

conduct to the de fendant and you may not use that evidence against the defendant in any way. You may, however, use that evidence to help you determine the credibility of Khalil Owen[s]’s and Jessie Gulley’s testimony.”
At defendant’s sentencing, counsel requested to mak e a record of several things that occurred during trial. Counsel stated that at the bench conference during the investigator’s testimony, she “asked the court considering the fact that

. . . Woods

. . . was not going to be testifying, that perhaps it woul d not be appropriate, based on the court’s in limine ruling, that [the investigator] discuss the alleged intimidation of

. . . Woods . . . . ” Counsel continued, “ Because my understanding of the in limine ruling was that the court was saying
that that info rmation with regard to George[’s] . . . actions was coming in

. . . with regard to the testimony of . . . Woods an d h ow th ose events had affected [his] testimony. [¶] And my argument was that since [Woods] was not testifying, that they were no longer

-- that was no longer relevant. [¶] And at the bench, I believe the court overruled that request and the [Woods] information did come in anyway.” The court stated , “All right,” and asked the prosecution if it wanted to address counsel’s statements. The pr osecution declined.

2. Forfeiture
Re l ying on Evidence Code section 353, t he Attorney General contends that defendant’s claim s regarding the evidence of George’s intimidation of Woods ha ve been forfeited because he did not object to the evidence at trial. The Attorney General argues that defendant’s motion in limine did not preserve the claim s because it was unclear at that point whether Woods would testify. The Attorney General asserts t hat defense counsel failed to state a legal basis for defendant’s objection to the evidence when counsel made a record of it at sentencing

. Evidence Code section 353, subdivision (a) provid es that “[a] verdict . . . shall not be set aside, nor shall the j udgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless: [¶] There appears of record an objection to or a31

motion to exclude or to strike the evidence that was timely made and so stated as to make
clear the s pecific ground of the objection or motion .”
T he California Supreme Court has explain ed that Evidence Code section 353 requires
an “ ‘ objection [to] be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis o n which exclusion is sought, and to afford the [proponent] an opportunity to establish its admissibility. ’ [Citation.] What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reas on or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason
different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct. ” ( People v. Partida (2005) 37 Cal.4th 428 , 435 ( Partida ) .) Defendant claims on appeal that the Woods intimidation evidence was irrelevant because Woods’s credibility was not at issue as he d id not testify at trial and neither Gulley nor Owens testified regarding Woods. Defendant further contends that the evidence was more prejudicial than probative as it had no bearing on any testifying witness’s credibility and “could only have reflected ne gatively on [defendant].” Defendant asserts that the evidence’s admission violated his Fourteenth Amendment right to due process. Based on the trial record, we conclude that defendant adequately preserved his claims regarding the Woods intimidation evid e nce . Defendant’s motion in limine notified the court that he was objecting to the evidence on the basis that it was inadmissible to rehabilitate a witness’s credibility and that it was more prejudicial than probative and would only “ tarnish [defendant] b y association .” And defendant’s objection during the investigator’s testimony alerted the court that defendant objected to the evidence because it “was no longer relevant”32

as Woods was not testifying at trial. While the Attorney General argues that the r ecord does not demonstrate the accuracy of counsel’s recitation of defendant’s objection during the investigator’s testimony since counsel put the basis of the objection on the record four
months after the t rial and “[n] either the court nor the prosecutor confirmed ” it, the court and the prosecution had the opportunity to clarify or correct counsel’s statements and did not do so. The court simply stated, “All right.” Evidence Code section 353’s requirement of a specific objection “ must be interpreted reasonably, not formalistically .” ( Partida , supra , 37 Cal.4th at p. 434.) Here, there was enough specificity to “fairly inform” the trial court of the bases of defendant’s objection , and defendant’s claims on appeal reasonably resemble his tr ial court arguments. ( Id. at
p. 435. ) And under Partida , defendant “may argue that the asserted error in admitting the
evidence

. . . had the additional legal consequence of violating due process , ” despite that he did not make a due process argument belo w. ( Ibid. ) Thus, we conclude that defendant’s claims regarding the Woods intimidation evidence have not been forfeited.

3. Legal Principles and Standard of Review “ ‘ “Only relevant evidence is admissible (Evid.Code, § 350; [citations] ), and, except

as ot herwise provided by statute, all relevant evidence is admissible[.] (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d) .

. .).” [Citation.] ’ ” ( People v. Tully (2012) 54 Cal.4th 952, 1010 ( Tully ) .) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” ( Evid. Code , § 210.) Relevant evidence must be excluded “when its probative
value is substantially outweighed by its prejudicial effect.” ( People v. Tran (2011) 51 Cal.4th 1040, 1047 ( Tran ); Evid. Code, § 352.) We “appl[y] the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.” ( People v. Waidla (2000) 22 Cal.4th 690, 723 ( Waidla ) .) “The trial court has broad discretion to determine the relevance of evidence [citation], and33

we will not disturb the court ’ s exercise of that discretion unless it acted in an arbitrary, capricious or patently absurd manner.” ( People v. Jones (2013) 57 Cal.4th 899, 947 ( Jones ) .) Likewise, “[a] trial court ’ s exercise of discretion under section 352 will be upheld on appeal unle ss the court

. . . exercised its discretion in an arbitrary, capricious, or patently
absurd manner. ” ( People v. Thomas (2012) 53 Cal.4th 771, 806 ( Thomas ) .)

4. Analysis
The trial court did not elaborate on the reasons for its ruling that it would allow the prosecution to present evidence that George intimidated Woods other than to state that it would instruct the jury that the evidence pertained to “ the credibility of the witnesses subject
to the intimidation

. ” The court i nstructed the jury that it could “use th[e] evidence to help

. . . determine the credibility of Khalil Owen’s and Jessie Gulley’s testimony.” We
therefore glean from the court’s statement and its instruction that it implicitly found the
Woods intimidation evidence relevant to Owens’s and Gulley’s credibility and not substantially more prejudicial than probative.
We find the evidence to be of limited relevance to Owens’s and Gulley’s credibility

. Both Owens and Gulley testified to acts of intimidation by George. That George also
intimidated Woods tended to corroborate Owens’s and Gulley’s testimony that George
intimidated them and to bolster their credibility generally. Owens and Gulley were key prosecution witnesses whose credibility was contested at trial

. Owens testified that defendant was one of the people who had engaged in a verbal confrontation with Maynard; he saw a bulge on defendant’s hip that night; and before he heard the gunshots, h e saw defendant walking in the direction of the crime scene

. Gulley
testified that Maynard had called defendant a “ ‘bitch’ ” outside of the taqueria , and Gulley placed defendant at the scene of the shooting with a gun. Gulley stated that defendant shot
hi s hand when he grabbed defendant’s gun and that a s he ran from defendant , he heard two more gunshots before he turned and saw Jackson on the ground. Both Owens and Gulley34

admitted during their testimony that they had lied to the police during the investigation of
this case , and Maynard initially identified Owens as the shooter

. Defendant ’s t heory , in contrast, was that Owens killed Jackson , and defendant repeatedly challenged Owens’s and Gulley’s credibility

. Given that the Woods intimidation

ev idence bolstered Owens’s and Gulley’s credibility and that their credibility was contested, the trial court’s implicit determination of relevance was not “ a rbitrary, capricious or patently absurd.” ( Jones , supra , 57 Cal.4th at p. 947.) While defendant ar gues that the evidence “essentially constituted impermissible character evidence against George (Evid. Code, § 1101) ,” defendant did not object to the evidence on that ground below and is foreclosed from doing so here. ( See Partida , supra , 37 Cal.4th at p

. 43 5 [a defendant “ may not argue that the court should have excluded the evidence for a reason different from his trial objection ”] .)
We also conclud e that the trial court did not abuse its discretion when it implicitly
determined that the Woods intimidation evidence was not substantially more prejudicial than probative . As we stated above, the evidence was somewhat probative of Owens’s and Gulley’s credibility, and the trial court limi ted the evidence’ s use to help ing the jury determine Owens’s and Gulley’s credibility

. D efendant argues that the recorded jail call between George and defendant “only provided a speculative inference that George was even referring to

. . . Woods , ” presum ably
because during the call George referred to the person he spoke to at the preliminary hearing only as “Brah.” However, because the evidence was relevant to Owens’s and Gulley’s credibility generally and their testimony regarding George’s conduct towar d them, it was

not particular ly important that it was Woods who George also intimidated. And the jail call made clear that George at the very least told someone who was subpoenaed for the hearing not to “be showing up over here

. ” There was also evidence that the George Thompson Jr.
Facebook account had searched for “Sean Woods ” several times the day before the preliminary hearing; that Woods failed to appear at the hearing; and that George was35

arrested for intimidating Woods. It was reasonable to infer f rom this evidence that George was referring to Woods as “Brah” during the jail call. Defendant argues that the evidence “could only have reflected negatively on [him] since . . . it indicated his brother was going around intimidating numerous witnesses.” The
trial court forbade the jury from using the evidence against defendant “in any way,” however, and told the jury that “[t] here has been no evidence presented linking this conduct
to the defendant .” W e presume that the jury followed the court’s instru ction that it could only use the evidence to help it determine Owens’s and Gulley’s credibility. (See Flinner , supra , 10 Cal.5th at p. 717.) And given the evidence that George had also intimidated Owens and Gulley , was once violent with Gulley , and was the leader of a Crip gang , and that defendant had told Gulley the day after the shooting that if he said anything, he would have a problem, the evidence of George’s intimidation of Woods was not particularly inflammatory. For these reasons, we conclu de that the trial court’s implicit determination that the Woods intimidation evidence was not substantially more prejudicial than probative was not an abuse of discretion as it was not “ arbitrary, capricious, or patently absurd. ” ( Thomas , supra , 53 Cal.4t h at p. 806.)

5. Due Process Claim
E ven if we were to assume that the trial court abused its discretion when it admitted the Woods intimidation evidence, we would not find that the evidence’s admission rendered
the trial “ fundamentally unfair ” such that it violated defendant’s due process right s

. ( Partida , supra , 37 Cal.4th at p. 3 9 9.) “ To prove a deprivation of federal due process rights, [defendant] must satisfy a high constitutional standard to show that the erroneous admission
of evidence resulted in an unfair trial. ‘ Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence

must “ be of such quality as necessarily prevents a fair trial. ” [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper36

purpose. ’ [Citation.] ‘ The dispositive issue is

. . . wh ether the trial court committed an error
which rendered the trial “ so ‘ arbitrary and fundamentally unfair ’ that it violated federal due
process. ” [Citations.] ’ [Citation.]” ( People v. Albarran (2007) 149 Cal.App.4th 214, 231 [determining that irrelevan t gang evidence that included threats to kill police officers violated the due process clause] .) Defendant argues that the evidence violated due process “ given [its] inflammatory

nature , ” but does not elaborate on that point other than by reiterating that the evidence could only have been credited against him and was speculative. Defendant also compares this

case to McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 ( McKinney )

. In McKinney , t he defendant was convicted of murdering his mother by slitting he r throat with a knife. ( McKinney , supra , 993 F.2d at p. 1381.) T he trial court admitted
evidence that t he defendant possess ed v arious knives , occasionally strapped a knife to his body while wearing camouflage pants, and had scratched the words “ ‘Death is His’ ” on a
closet door . ( Id. at p. 1382.) The Ninth Circuit concluded that there were no permissible inferences the jury could have drawn from the evidence as it was solely probative of the defendant’s propensity to possess knives. ( Id. at p. 1384.) It is unclear from the decision whether defendant objected to the evidence on propensity grounds below . The Ninth Circuit concluded that the “emotionally charged” evidence rendered the defendant’s trial fundamentally unfair as the prosecution’s evidence against him was solely circumstantial
and there was no motive for the crime

. ( Id. at p. 1385 .) In contrast here, the Woods intimidation evidence was relevant to Owens’s and Gulley’s credibility and was not admitted as proof of defendant’s guilt . It was also not “emotionally charged.” ( McKinney , supra , 993 F.2d at p. 138 5 .) Thus, we find McKinney inapposite. Regarding defendant’s remaining contentions, as we explained above t he evidence could not have been “credited against him” because the trial court instructed the jury that it could not use the evidence against defendant

. (See Flinner , supra , 10 Cal.5th at p. 717.)37

Further, the court told the jury after a defense investigator testified, which was on the same day the Woods intimidation e vidence was admitted , “[I]f a witness does not testify, that is not evidence. There is no speculating as to what they would have said, what they could
have said. That

-- that’s improper. [¶]

. . . T here’s other witnesses that you think might have involvement. If you don’t hear their testimony, you cannot consider it. You can’t hold it against the Defense; you can’t hold it against the Prosecution. You can’t hold it to the benefit of the Defense; y ou can’t hold it to the benefit of the Prosecution. And I just wanted
that

-- to reemphasize that.” And , as stated above, the evidence was not particularly inflammatory. For these reasons, we conclude that the evidence did not render the trial

“ fundam entally unfair

. ” ( Partida , supra , 37 Cal.4th at p. 4 39.)

6. Prejudice from the Assumed Error “Absent fundamental unfairness, state law error in admitting evidence is subject to
the traditional Watson [ 8 ] test: The reviewing court must ask whether it is r easonably probable the verdict would have been more favorable to the defendant absent the error.” ( Partida , supra , 37 Cal.4th at p. 439.) Even if we were to a ssum e that the admission of the Woods intimidation evidence violated state law, we would determine that the error was
harmless under Watson based on the evidence aga inst defendant and the trial court’s instructions to the jury. The evidence against defendant was fairly strong

. Video surveillance footage
showed defendant and several others in volved in an argument with Maynard, who is
Jackson ’s half

- brother , on the date of the shooting

. Although Maynard testified at trial that he was not sure if the person who flashed the gun was the shooter , he consistently told the police that during the arg ument the shooter flashed a gun at him

. Maynard testified that the man with the gun said something like , “ ‘You don’t want these problems. Come around the

8 People v. Watson (1956) 46 Cal.2d 818 ( Watson ).38

corner

. ’ ” Hayes, who was w ith Maynard and Jackson during the argume nt , identified
defendant as th e person saying, “ ‘Take it around the corner.’ ” Owens and Gulley , who were in the group associated with defendant, both testifi ed
that on the night of the shooting they saw a bulge on defendant’s hip. Gulley testified that during the argument, Maynard called defendant “ ‘bitch , ’ ” and that afterwards Owens told defendant, “ ‘You know what you got to do , ’ ” providing a motive for the shooting. Gulley was present at t he shooting. Gulley stated that Jackson punched him, and when he was about to punch J ackson in return , he saw defendant with a gun out. Gulley grabbed the gun . Defendant shot Gulley’s hand and Gulley ran , bleeding, before hearing more gunshots and seeing Jackson on the ground. Gulley’s testimony was partially corroborated by his inclusi on as a possible contributor to the minor DNA profile developed
from the blood stains on Jackson’s hand ; Gulley’s trail of blood leading from the scene ; the

scar ring on Gulley’s hand ; and the surveillance footage showing Gulley wrapping a jacket
around his hand and running

. Gulley identified defendant as the person running behind him
in the surveillance footage and stated that the footage showed defendant putting the gun
away. Gulley further testified that when he told defendant that he had shot him, defendant
said that he “ ‘shouldn’t grab it.’ ” Gulley stated that the day after the shooting, defendant
told him that if he said anything, he would have a problem and that defendant’s brother

su bsequently threatened him, too

. In addition, defendant stated to his brother George during a recorded jail call t hat Maynard was unable to identify him in a lineup because he did not know the shooter’s face.
It is reasonable to view t his evidence as an admission by defendant that he was the shooter. Also supporting our finding of harmlessness is the trial court’s limiting instruction on the witness intimidation evidence. As we stated above, t he court told the jury that “[t]here has been no evidence pre sented linking this conduct to the defendant and you may not use that evidence against the defendant in any way. You may, however, use that evidence to help you determine the credibility of Khalil Owen’s and Jessie Gulley’s testimony.”39

Defense counsel re peated the instruction during her closing argument , and we presume that the jury followed it. (See Flinner , supra , 10 Cal.5th at p. 717.) For these reasons, we determine that it is not “ reasonably probable that a result more
favorable to [defendant] would have been reached ” absent the admission of evidence that George intimidated Woods , and we reject defendant’s claims that the court committed
reversible error when it admitted the evidenc e

. ( Watson , supra , 46 Cal.2d at p. 836.)
D. Evidence of Internet Searches on the George Thompson , Jr. Facebook Account
Defendant contends that the trial court erred when it admitted evidence of internet searches performed on the George Thompson Jr. Facebook account. As we stated above, George Thompson is defendant’s brother. The evidence consisted of searches for news
stations shortly afte r t he shooting occurred; searches for Jackson in the days following the shooting ; and searches for “ ‘ Wizzy’ ” “ ‘ Wizzy Going’ ” in April 2016

. 9 “Wizzy” i s Owens’s moniker

. Defendant contends that the evidence was irrelevant, more prejudicial than proba tive, and violated his Fourteenth Amendment right to due process. The Attorney
General contends that the evidence of the news stations searches and the searches for
Jackson shortly after the shooting w as probative of defendant’s involvement in the offense
and that the evidence of the searches for Owens was relevant to Owens’s credibility. The Attorney General denies that any of the internet search evidence was more prejudicial than probative or that the evidence violated defendant’s right to due process

.

1. Trial Court Proceedings The prosecution moved in limine to present evidence that the George Thompson Jr.
Facebook account conducted 1 2 searches for Jackson within several minutes a few days

9 Defendant also contends that the court erred when it admitted evidence of internet searches on the Facebook account for Woods. Because d efendant included this same evidence in his claim that the court erred when it admitted evidence of George’s intimidation of Woods, we do not address it separately here

. W e reject it for the same reasons stated above.40

after the shooting ; 1 search for Jackson six days after the shooting ; and searches for

“ ‘Wizzy Going’ ” in April 2016 , after the preliminary hearing

. The prosecution contended
that the searches for Jackson were relevant to witnesses’ credibility and tended to establish defendant’s identity as the shooter as defendant was not yet a suspect when the searches
occurred . The prosecution contended that the searches for “ ‘ Wizzy Going’ ” were relevant to Owens’s credibility and state of mind because defendant’s brother, George, attempted to
dissuade Owens from test ifying

. At the hearing on the motion, the prosecution reiterated the arguments in its motion and added that the searches for Owens were relevant to defendant’s identity as the shooter.
Defendant contended that it was speculative and not reasonable to infer from the
searches that he admitted to George that he was the shooter as it was possible that Gulley told George about the shooting or that defendant himself told George about it since there was no dispute that defendant was in the v icinity of the shooting. Defendant also argued
that “there has to be some connection” between him and the search evidence and that the
evidence was more prejudicial than probative , would confuse the issues, and would prevent him from receiving a fair tria l.
The court ruled that it would allow evidence of George’s intimidation of witnesses
and the related Facebook searches. The court stated that if there was not a sufficient connection between defendant and the evidence, it would instruct the jurors that the evidence related solely to “judging the credibility of the witnesses who were the victims of the [witness] intimidation, but they are not to use it against [defendant].” The court delayed its ruling on the evidence of the searches for Jackson.
Defe ndant subsequently filed a motion in limine objecting to the witness intimidation evidence, the related Facebook searches, and the searches for Jackson. Defendant reiterated his arguments that the evidence was speculative, not relevant, and more prejudici al than probative and that there was no evidence linking him to George’s conduct

. The court41

maintained its prior ruling regarding the witness intimidation evidence and “the extrinsic proof” of George’s conduct. During the trial testimony of a prosecutio n investigator, an unreported bench conference was held when the prosecution began questioning the investigator about
the George Thompson, Jr. Facebook accoun t. The investigator subsequently testified that on the date of the shooting, the account conduct ed at least three searches for news stations, such as “ ‘KRON 4 News.’ ” The first search occurred on the date of the murder at 3:37 a.m.; the second search occurred at 3:38 a.m.; and the third search occurred at
3:46 a.m. The investigator stated that in his review of a couple thousand pages of account records , he found only one other search for new s , which appeared to be a random search and “was not clustered with others.” The investigator testifi ed that the Facebook account searched for “ ‘Marvin Jack son Jr.’ ” two days after the murder . An article with Jackson’s name in it had appeared in a

newspaper earlier that day , but defendant had not been named as a suspect yet . The investigator stated that there were “many searches” for Jackson that date, som e occurring just seconds apart , and testified to approximately 13 searches related to Jackson. The investigator testified that there was “a more specific search . . . for ‘Marvin Jackson Jr. San
Jose CA’ ” six days after the murder. The investigator also testified about George’s intimidation of Owens. After stating that a photograph of Owens tes tifying at the preliminary hearing had been posted to the George Thompson Jr. Facebook account as well as various comments about the photograph, including “ ‘ [ h ] ashtag stop snitch ing , ’ ” the investigator testified that there were four searches by the accou nt for “ ‘Wizzy Going’ ” or “ ‘Wizzy

. ’ ”
Later during the investigator’s testimony, the court admonished the jury, “You’ve heard evidence related to a photograph of Mr. Owens and conduct relating to ‘hashtag snitch’

-- evidence of that sort. I’m going to give you an instruction at the end about how42

you may use that evidence and how you may not use that evidence. And it will be part of the instructions at the conclusion of the case.” At the conclusion of the investigator’s testimony and outside of the jury’s presence, the court stated that it permitted the evidence of the Facebook searches based on the
information that defendant lived at the address associated with the Facebook account , which was also George’s address and the address that defendant gav e when arrested. The court continued, “I think that raises the inference . . . as to who accessed that Facebook account and did those searches. [¶] And based on that, I’m allowing the admissibility, over objection and after consideration of Evidence Cod e 352.”

2. Legal Principles and Standard of Review As we stated above, all relevant evidence is generally admissible (Evid. Code, § 351) , and evidence is relevant if it has “ any tendency in reason to prove or disprove any disputed fact that is of consequenc e to the determination of the action” ( i d. , § 210)

. Relevant evidence must be excluded “when its probative value is substantially outweighed by its prejudicial effect.” ( Tran , supra , 51 Cal.4th at p. 1047; Evid. Code, § 352.) We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. ( Waidla , supra , 22 Cal.4th at p. 723.) Thus, we will not find error unless the
court “ exercised its discretion in an arbitrary, capricious, or patently absurd m anner. ” ( Thomas , supra , 53 Cal.4th at p. 806.)

3. Analysis

a. Evidence of Internet Searches for News Stations and Jackson Shortly After the Shooting
Defenda nt contends that the evidence of internet searches by the George Thompson
Jr. Facebook account for news stations on the date of the shooting and for Jackson within days of the shooting was not relevant because it was not reasonable to infer that the searches were conducted “only because [he] was the shooter; this theory was wildly speculative.”
Defenda nt points out that there was no evidence that he “went home or stayed with [George]43

after the shooting”; that he had access to the Facebook account; that George had not learned about the shooting from someone else; or that he had simply told George about t he shooting
because he was in the vicinity of the shooting that night. We conclude that the trial court did not abuse its “ ‘broad discretion’ ” when it implicitly determined that evidence that a Facebook account associated with defendant’s
home address conducted three searches for news stations at 3:37 a.m., 3:38 a.m., and
3:46 a.m. on the date of the shooting was relevant to defendant’s identity as the shooter. ( T ully , supra , 54 Cal.4th at p. 1010.) Although circumstantial and not overwhelmingly convincing, “ ‘ “ t he evidence tend [ed] ‘ “ logically, naturally, and by reasonable inference ”
to establish [defendant’s] identity ’ ” ’ ” as the shooter because the searches occurred just
over an hour after the shooting , were clustered together, and were highly unusual for the

account. ( People v. Wallace (2008) 44 Cal.4th 1032, 1058 ( Wallace ) .) T he timing of the searches, that there were multiple searches, and the atypical nature of the searches for the

account evince d that they were more than just a casual search for news

. The same holds true for the evidence of the account’s “many searches” for Jackson

a couple of days after the shooting on the same date Jackson’s name appeared in a news article and the single search for “ ‘Marvin Jackson Jr. San Jose CA’ ” six days after the shooting. That th ere were other r easonable inferences that could be taken from the evidence

“ do [e s ] not mean the [searches] ha [d] no tendency in reason to establish that defendant shot [Jackson]

. Those issues affect the probative weight of the evidence, not whether the [evidence] meet [s] the threshold requirement of relevancy. ” ( People v. Alexander ( 2010 ) 49
Cal.4th 846 , 904 ; s ee also People v. Farnam (2002) 28 Cal.4th 107, 156

- 157 [“ ‘ Standing alone the inference may have been weak, but that does not make the evidence
irrelevant

. ’ ” ] .) Defendant contends that even if relevant, the evidence of the Facebook searches
conducted sh ortly after the shooting was more prejudicial than probative because it was44

“wildly speculative”; the prosecution relied on it in closing argument; and it connected him to George’s witness intimidation.
We determine that a lthough the probative value of the search evidence was somewhat minimal, it was not “ substantially outweighed by its prejudicial effect.” ( Tran , supra , 51
Cal.4th at p. 1047 .) The evidence was not particularly inflammatory, and defense counsel directly countere d the prosecution’s argument that the evidence demonstrated consciousness of guilt and defendant’s identity as the shooter. Counsel a ssert ed in closing “that [the] whole thing about the searches the day or two after the homicide

-- we don’t know who did

t hem,” and that even if defendant had performed the searches, it did not mean that he was the shooter because “[w]e know that [defendant] was down there.” And we must reject defendant’s claim that this search evidence somehow connected him to George’s witn ess intimidation, as the trial court explicitly instructed the jury that “[t]here has been no evidence presented linking this [witness intimidation] conduct to the defendant and you may not use that evidence against the defendant in any way.” (See Flinner , supra , 10 Cal.5th at p. 717 [“ we presume [the jury] followed the court ’ s instructions ”].) For these reasons, we conclude that the trial court did not abuse its discretion when it
admitted the evidence of the internet searches for news stations and for Jackson conducted on the George Thompson Jr. Facebook account shortly after the shooting.

b. Evidence of Searches Related to Owens After Preliminary Hearing
Defendant contends that the evidence of the F acebook searches related to Owens in April 2016 should have been excluded as irrelevant and as more prejudicial than probative because they did not corroborate George’s intimidation of Owens; no corroboration of George’s intimidation of Owens was necessary ; and there was no evidence that Owens was aware of the searches such that they were intimidating to him. As we recounted above, the trial court admitted evidence that George engaged in acts of witness intimidation against Owens, finding that the evidenc e was relevant to Owen s’ s45

credibility. E vidence was presented that on April 3, 2016, the George Thompson , Jr. Facebook account posted a photograph of Owens testifying at the preliminary hearing with the comment, “ ‘Some snitch who on the stand testify.’ ” A later comment posted by the

account stated, “ ‘He got that ET Finger. Hashtag stop snitching.’ ” There was evidence that George had attended the hearing and that the photograph was taken from the area where George was sitting. At issue here is the e vidence that the same Facebook account searched for Owens by his nickname, “ ‘Wizzy,’ ” and “ ‘Wizzy Going’ ” a total of four times between April 5 and April 8. Contrary to defendant’s assertion, evidence that the George Thompson , Jr. Facebook

account s earched for Owens multiple times a round when the account posted the photograph of Owens testifying does tend to corroborate that George was involved in the intimidation of
Owens. “ ‘ “[T]he evidence tend [ed] ‘ “ logically, naturally, and by reasonable
infe rence ” ’ ” ’ ” to establish that George was involved in the intimidation because the Facebook account was linked to George and it shows George’s persistent interest in Owens. ( Wallace , supra , 44 Cal.4th at p. 1058.) I mportantly, “ ‘ “ ‘ [e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness
and is therefore admissible. [Citations.] An explanation of the basis for the witness ’ s fear is likewise relevant to [his] c redibility and is well within the discretion of the trial court. [Citations.] ’ ” [Citation.] “ Moreover, evidence of a ‘ third party ’ threat may bear on the credibility of the witness, whether or not the threat is directly linked to the defendant. ” ’ ” ( People v. Seumanu ( 2015 ) 61 Cal.4th 1293 , 1313 .) Defendant argues that the searches for Owens should have been excluded as more prejudicial than probative because “[t]heir minimal corroborative value as to the witness intimidation was substantially outwe ighed by the implication that George was getting highly
involved with several witnesses and that he may have been doing his brother’s bidding. ” As we have stated several times, however, the trial court instructed the jury regarding “conduct
associated wit h George Thompson . . . a ttempting to influence Khalil Ow [e n ]s” that “ [t]here46

has been no evidence . . . linking this [witness intimidation] conduct to the defendant and
you may not use that evidence against the defendant in any way.” We presume that the jury followed that instruction. ( Flinner , supra , 10 Cal.5th at p. 717.) While defendant asserts that there was “a real risk” that th e Facebook search evidence “could have been credited against [him] , ” as the jury instruction did not specify that it perta ined to the Facebook searches, the trial court told the jury during the investigator’s testimony, “ You’ve heard evidence related to a photograph of Mr. Owens and conduct relating to ‘hashtag snitch’

-- evidence of that sort. I’m going to give you an instr uction at the end about how you may use that evidence and how you may not use that evidence

. And it will be part of the instructions at the conclusion of the case.” T his mid

- testimony admonishment sufficiently grouped the evidence together such that it would have been clear to the jury that the subsequent instruction covered the George Thompson, Jr. Facebook account searches for
Owens. Defendant has not demonstrated that the probative value of the Facebook account searches for Owens was “ substantially o utweighed by its prejudicial effect.” ( Tran , supra , 51 Cal.4th at p. 1047 .) The evidence of the searches for Owens was not inflammatory, especially given the evidence that the account had previously posted a photograph of Owens testifying and comments ab out being a “ ‘snitch’ ” and “ ‘snitching.’ ” Nor was it
cumulative to the extent that t he trial court abused its discretion for failing to exclude it on that basis. (See Booker , supra , 51 Cal.4th at p. 194 [a trial court must exclude “unduly cumulative” evidence].) For these reasons, we conclude that the trial court did not err when it admitted the evidence of the George Thompson Jr. Facebook account’s internet searches for Owens.

c. Due Process
Defendant further contends that the admission of the i ntern et s earches conducted on the George Thompson, Jr. Facebook a ccount violated his right to due process under the
federal C onstitution. However, since we have not found that the admission of the evidence47

was error under state law, we need not decide “the consequences of that error, including .

. . whether the error was so serious as to violate due process.” ( Partida , supra , 37 Cal.4th at
p. 437.)
E. Cumulative Prejudice
Defendant contends that his convictions must be reversed due to cumulative prejudice from the trial court ’ s errors , which denied him a trial that comported with due
process

. “We have considered each claim on the merits, and neither singly nor cumulatively do they establish prejudice requiring the reversal of the convictions.” ( People v. Lucas (1995) 12 Cal.4th 415, 476.)
F. Prior Pr ison Term Enhancement The parties agree that the prior prison term enhancement must be stricken based on a recent change to the law. We concur.
E ffective January 1, 2020, Senate Bill No. 136 (2019

- 2020 Reg. Sess.) amended the prior prison term sentence enhancement under section 667.5, subdivision (b) by limiting its application to prison terms that, unlike defendant ’ s, were serv ed for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) The amendment applies retroactively to defendant because it is an ameliorative change , there is no indication that the Legislature intended the amendment to apply solely prospectively, and defendant’s case is not yet final on appeal

. (See People v. Jennings (2019) 42 Cal.App.5th 664, 680

- 682.) We will therefore order the trial court to
strike the sect ion 667.5, subdivision (b) sentence enhancement.
G. Firearm Enhancement Defendant contends that the matter must be remanded for resentencing to allow the trial court to exercise its newly enacted discretion to strike the section 12022.53,
subdivision (d) fir earm enhancement. Defendant asserts that the trial court may also reduce his punishment by imposing a lesser included firearm enhancement. The Attorney General48

concedes that the case should be remanded for the court to exercise its discretion to strike

t he enhancement

. “Section 12022.53 sets forth the following escalating additional and consecutive penalties, beyond that imposed for the substantive crime, for use of a firearm in the commission of specified felonies

. . . : a 10

- year prison term for pers onal use of a firearm, even if the weapon is not operable or loaded ( id. , subd. (b)); a 20

- year term if the defendant ‘personally and intentionally discharges a firearm’ ( id. , subd. (c)); and a 25

- year

- to

- life term if the intentional discharge of the firea rm causes ‘great bodily injury’ or ‘death, to any person other than an accomplice’ ( id. , subd. (d)).” ( People v. Gonzalez (2008) 43 Cal.4th 1118, 1124.) Effective January 1, 2018, Senate Bill No. 620 (2017

- 2018 Reg. Sess.) amended section 12022.53, sub division (h) to give trial courts discretion to strike or dismiss a
section 12022.53 firearm enhancement at sentencing in the interests of justice. (Stats. 2017, ch. 682, § 2

. ) Prior to the amendment, imposition of the enhancement was mandatory. (See
fo rmer § 12022.53, subd. (h); Stats. 2010, ch. 711, § 5.) We concur with t he parties that as an ameliorative change to the law, the amendment to section 12022.53 applies retroactively to cases that are not yet final on appeal. ( See People v. Woods (2018) 1 9 Cal.App.5th 1080,
1090

- 1091.) After the amendment to section 12022.53, subdivision (h), People v. Morrison (2019) 34 Cal.App.5th 217 , 223 ( Morrison ) held that trial courts have “discretion to impose an enhancement under section 12022.53, subdivision (b) or (c) as a middle ground to a lifetime enhancement under section 12022.53, subdivision (d), if such an outcome [is] found to be in the interests of ju stice under section 1385.” A split developed in the Courts of Appeal regarding whether a trial court had the discretion to impose a lesser uncharged
section 12022.53 enhancement.
In People v. Tirado ( 2022 ) 12 Cal.5th 688 , 697 ( Tirado ) , the California Sup reme Court recently concluded that Morrison “correctly described the scope of a trial court ’ s49

sentencing discretion under section 12022.53.” Tirado determin ed that the “statutory framework” of section 12022.53, as amended by Senate Bill No. 620, “permits a court to strike the section 12022.53(d) enhancement found true by the jury and to impose a lesser uncharged statutory enhancement instead.” ( Tirado , supra , at p. 692.) “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 section 12022.53(b) or (c).” ( Id. at
p. 700.) “[T]he Legislature has permitted courts to impose the penalties under
section 12022.53(b), (c), or (d) so long as the existence of facts required by the relevant subdivision has been alleged and found true.” ( Id. at p. 702.)
The remaini ng question then is whether remand is required or if it would be an “ ‘idle
act.’ ” ( People v. Gamble (2008) 164 Cal.App.4th 891, 901 ( Gamble ).) Generally, “when the record shows that the trial court proceeded with sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” ( People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The rationale for this general rule is that “[d]efendants are entitled to ‘sentencing decisions made in the exercise of the “informed discretion” of the sentencing court,’ and a court that is unaware of its discretionary authority cannot exercise its informed discretion.” ( Ibid. ) Howe ver, where “ ‘the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.’ ” ( Gamble , supra , at p. 901 ; see also People v. G u t i errez (2014) 58 Cal. 4th 1354, 1391 [ remand for resentencing is appropriate “ unless the record

‘ clearly indicate[s] ’ that the trial court would have reached the same conclusion ‘ even if it had been aware that it had such discretion’ ” ] .) Here, the trial court did not elaborat e on its sentencing decisions. It simply stated that probation was denied and defendant was committed for 75 years to life consecutive to50

one year. When asked to break down the sentence, the court stated, “25 to life for the
first degree murder, . . . do ubled to 50 to life because of the strike prior. [¶] 25 years added for the gun enhancement pursuant to 12022.53, for 75 years to life. [¶] The gun possession charge in Count Two is the mid term of four years concurrent, and then the prison prior is

on e year consecutive pursuant to 667.5(b), for a total term of 75 years to life consecutive to one year.” Because there is no indication from the record “ ‘that the trial court would not have exercised its discretion even if it believed it could do so,” rem and is required. ( Gamble , supra , 164 Cal.App.4th at p. 901.) Accordingly, we will remand the matter to give the trial court an opportunity to exercise its discretion to strike the section 12022.53, subdivision (d) firearm enhancement or to impose a lesse r enhancement under section 12022.53, subdivision (b) or (c). We express no opinion on how the trial court should exercise its discretion on remand.
H. Criminal Justice Administration Fee Defendant contends that there is insufficient evidence to support the trial court’s imposition of a $129.75 criminal justice administration fee pursuant to Government Code sections 29550, 29550.1, and 29550.2 , also known as the booking fee

. Because the court specified that the fee was to be paid to the city of San Jose, we presume that the statutory
basis for the fee was former Government Code section 29550.1 , which stated that “[a] ny city

. . . whose officer or agent arrests a person is entitled to recover any criminal justice administration fee imposed by a county from the arrested person if the person is convicted of any criminal offense related to the arrest. ” Defendant argues that imposition of the fee was improper because there was no evidence that he was arrested or booked by the San Jose Police Department. Assembly Bill No. 1869 “ abrogated the authority to impose and collect

. . . the criminal justice administration fee .” ( People v. Greeley (2021) 70 Cal.App.5th 609, 626 ( Greeley ) .) N ewly e nacted Government Code section 6111 provides that “[o] n and after
J uly 1, 2021, the unpaid balance of any court

- imposed costs pursuant to

. . . subdivision (c)51

or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3

. . . is unenforceable and uncollectible and any portion of a judgment imposing those costs sha ll be vacated.” ( Gov

. Code , § 6111, subd. (a).) In other words, “by its plain terms,” Government Code
section 6111 “make[s] any unpaid portion of the identified assessments, as they existed on June 30, 2021, ‘unenforceable and uncollectible’ as of July 1 , 2021. [Citation.]” ( Greeley , supra , at p. 626.) Further, “the statute

. . . mandates that any portion of a judgment imposing those fees be vacated. ” ( Id. at pp. 626

- 627, fns. omitted.) Accordingly, pursuant to Government Code section 6111 , the unpaid balance of the criminal justice administration fee must be vacated , rendering moot defendant’s sufficiency
of the evidence claim. (See Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [if no effectual relief c an be granted, an appeal will be dismissed as moot].) Although defendant asserts that he is entitled to reimbursement for “any booking fee” that he has already paid, there is no evidence in the record that defendant has paid any portion of the fee. Becau se this case must be remanded for resentencing, defendant may raise this argument in the trial court in the first instance.
I. Restitution Order Defendant contends that insufficient evidence support s $5,000 of the $13,083 in
direct victim restitution he was ordered to pay Jackson’s parents. According to the probation report, the parents requested $5,000 to reimburse them for the outstanding balance they pa id on Jackson’s car. Defendant argues that there is insufficient evidence to support
th e $5,000 o rd ered for the vehicle payment because Jackson’s parents did not suffer a
financial loss; “ they gained a car

. ” Defendant also contends that the order was improper
because “the outstanding debt was not caused by the crime.” Defendant asserts that to the extent counsel’s objection to the $5,000 in restitution did not preserve his claim, h e receiv ed
ineffective assistance of counsel

. The Attorney General contends that the c laim has been forfeited because defendant did not request a restitution hearing and that defendant has not
shown that his trial counsel was ineffective.52 1. Trial Court Proceedings The probation report stated that Jackson’s parents “had to pay the remaining balance of $5,000 on [Jackson’s] vehicle,” and requested direct victim restitution to reimburse them for that payment as well as funeral expenses. Defendant objected to the requested restitution for the car, asserting that he did not know if that was “an appropriate item for restitution” because “[t]he vehicle probably remained in the [family’s] custody and control.”
The trial court ordered defendant to pay $13,083 to Jackson’s parents and advised defendant that he had “a right to a hearing to contest that amount.” The court also ordered defendant to pay $5,000 to the California Victim Compensation Board. The written
restitution order pertains solely to the board’s restitution.
It does n ot appear from the record that defendant requested a restitution hearing.
2. Relevant Legal Principles Regarding Victim Restitution Section 1202.4 provides that “ a victim of crime who incurs an economic loss as a
result of the commission of a crime shall rec eive restitution directly from a defendant
convicted of that crime. ” ( § 1202.4 , subd. (a)(1).) A “victim” include s the victim’s parents. ( Id. , subd. (k)(3)(A).) Absent two inapplicable exceptions, “ in every case in which a victim
has suffered economic loss as a result of the defendant ’ s conduct, the court shall require that
the defendant make restitution to the victim

. . . in an amount established by court order, based on the amount of loss claimed by the victim

. . . or any other showing to the court. ” ( Id. , subd. (f).) The restitution ordered “shall be of a dollar amount that is sufficient to fully
reimburse the victim

. . . for every determined economic loss incurred as the result of the defendant’s criminal conduct.” ( Id. , subd. (f)(3).)

3. Forfeiture
On this record, we determine that defendant has forfeited his claim challenging the $5,000 in direct victim restitution ordered to reimburse Jackson’s parents for the outstanding debt they paid on Jackson’s car. The trial court was entitled to rely on the probation report53

as the basis for the parents’ claimed $5,000 loss. (See People v. Lockwood ( 2013 ) 214 Cal.App.4th 91 , 96; § 1202.4 , subd. (f).) Given that defendant did not request a restitution hearing, t he court had no basis to deny the requested restitution as “ ‘ “ ‘[s] ection 1202.4 does not, by its terms, require any particular kind of proof ’ ” ’ ” ( People v. Weatherton (2015) 238 Cal.App.4th 676, 684) and victim restitution is mandatory ( § 1202.4 , subd. (a)(1)). Defendant couches his claim in terms of insufficiency of the evidence, which generally can be raised for the first time on appeal ( see Pe ople v. McC u llough ( 2013 ) 56
Cal.4th 589 , 596), but the arguments defendant makes in support of the claim belie that description. Defendant argues that he did not cause the car debt and that the $5,000 in restitution was a windfall because the parents als o got to keep the car. A sufficiency of the evidence challenge, in contrast, maintains that the evidence in the record does not support the judgment ( s ee People v. Westerfield (2019) 6 Cal.5th 632, 713 ) , an argument defendant
does not make

. That defendan t forfeited his claim is demonstrated by the lacking factual support in the record for his arguments. For example, without a restitution hearing, there is no basis to conclude that the $5,000 in restitution constituted a windfall as there is no informatio n regarding the value of the car at the time of Jackson’s death. Nor is there any evidence regarding the car loan that would clarify whether Jackson’s death obligated Jackson’s parents to pay the outstanding balance. For these reasons, we conclude that d efendant has forfeited his challenge to the
restitution order by failing to request a restitution hearing . ( Cf. People v. Holloway ( 2004 )
33 Cal.4th 96 133 [“A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in
th e changed context of the trial evidence itself ”]

. )54 4. Ineffective Assistance of Counsel
Defendant contends that if the claim h as been forfeited, he received ineffective assistance of counsel. As explained above, to prevail on a n ineffective assistance of counsel
claim , a defendant must establish both that his or her counsel’s performance was deficient and that he or she suffered prejudice. ( Strickland , supra , 466 U.S. at p. 687.) Defendant has not demonstrated either deficient performance or prejudice he re. Regarding deficient performance, reversal on direct appeal is warranted 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 prov ide one, or (3) there simply could be no satisfactory explanation.” ( Mai , supra , 57 Cal.4th at p. 1009.)
Because the record does not reveal why counsel failed to request a restitution hearing to contest the order to reimburse Jackson’s parents for the car debt, we cannot conclude that
counsel was deficient as there are satisfactory explanations for the failure

. Similarly, regarding p rejudice , w ithout any facts about the car loan, ownership, or value in the record, defendant cannot “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ( Strickland , supra , 466 U.S. at p. 694.)
J. Imposition of Fines and Fees Relying primarily on People v. Dueñas (2019) 30 Cal.Ap p.5th 1157 ( Dueñas ), which was decided after defendant was sentenced, defendant claims that the trial court’s imposition of a $10,000 restitution fine (§ 1202.4, subd. (b)) , an $80 court operations

assessment (§ 1465.8), a $60 court facilities assessment ( Gov. Code, § 70373) , and a $129.75 criminal justice administrative fee (Gov. Code, § 29550.1) 10 and its stayed imposition of a $10,000 parole revocation restitution fine (§ 1202.45) violated the due process, equal protection, and excessive fines clauses of the federal and state Constitutions

10 As stated above, any outstanding balance on the criminal justice administrative fee must be vacated pursuant to Government Code section 6111.55

because defendant lacked the ability to pay. Defendant further contends that the court abused its discretion and violated his due process rights when it imposed a restitution fine in excess of the statutory minimum. I n response, t he Attorney General suggests that we allow defendant to request a hearing on his inability to pay on remand

.

1. Trial Court Proceedings At sentencing, defendant ask ed the court to impose the mandatory minimum restitution fine, which was $300

. Defendant stated that “he’s been somewhat unemployed and certainly he will be in custody for the rest of his life and

. . . would ask the court not to tax his family or anyone else with the restitution amount [ sic ] ,” and asserted that it was
within t he court’s discretion to impose the mandatory minimum

. The probation report stated that defendant ha s three children. At the time of his arrest, defendant had been working as a stocker for a month. His longest stretch of employment was three months as a landscaper in 2014 before a separate arrest. Defendant also had experience as a janitor. The report recommended the statutory maximum restitution fine of $10,000. The court ruled: “Despite the request of the defendant, I’m going to order a $10,000 res titution fund fine under the formula permitted by . . . Section 1202.4(b)(2).” The court imposed the assessments described above and imposed and stayed a $10,000 parole
revocation fund fine.

2. Dueñas Inability to Pay Claim
In Dueñas , the court held that the imposition of a court operations assessment and a court facilities assessment without a determination of the defendant’s ability to pay was “fundamentally unfair” and violated due process under the federal and state Constitutions. ( Dueñas , supra , 30 Cal.App.5th at p. 1168.) The court also concluded that the execution of a restitution fine under section 1202.4 “must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present abi lity to pay the restitution fine.” ( Dueñas , supra , at p. 1164.)56

As we explained above, we must remand the matter to give the trial court an opportunity to exercise its newly enacted discretion on the section 12022.53 firearm
enhancement. Because the Att orney General has no objection to defendant raising his
Dueñas claim on remand, we will allow defendant to raise the claim before the trial court on
remand. ( See People v. Castellano (2019) 33 Cal.App.5th 485, 490.) Although defendant asserts in his reply brief that “remand is unnecessary since the appellate record indicates an inability to pay,” the record is undeveloped as defendant did not r equest an a bility to pay
determination below. Nor do we generally make f actual findings in the first instance. Thus, remand on defendant’s Dueñas claim is appropriate.

3. Abuse of Discretion in Imposition of Restitution Fine
Defendant contends that the trial court abused its discretion and violated his due process rights when i t imposed a restitution fine above the statutory minimum because he “made it clear that he lacked the ability to pay a restitution fine in excess of the minimum amount” and the court was “unaware that prisoners do not have the assumed ability to pay,
and i t failed to properly consider departing from the statutory formula in light of [his] inability to pay

. ” Defendant highlights the information in the probation report regarding his
three children and employment history to support his claim.
As defendant r ecognizes, however, a trial court has broad discretion to set the amount of the restitution fine. (§ 1202.4, subd. (b)(1); see also People v. Urbano (2005) 128 Cal.App.4th 396, 405 ( Urbano ).) The court may impose the restitution fine in any amount
betwee n $300 and $10,000, “commensurate with the seriousness of the offense.” (§ 1202.4, subd. (b)(1).)
In setti ng the amount above the statutory minimum , “the court shall consider any relevant factors, including, but not limited to, the defendant’s inabilit y to pay, the seriousness and gravity of the offense and the circumstances of its commission, any economic gain derived by the defendant as a result of the crime, the extent to which any other person suffered losses as a result of the crime, and the number of victims involved in57

the crime.” (§ 1202.4, subd. (d).) The court may also “determine the amount of the fine as the product of the minimum fine . . . multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by th e number of felony counts of which the defendant is convicted.” (§ 1202.4, subd. (b)(2).) The court is not required to hold a hearing or state its findings for the record unless it declines to impose the fine. (§ 1202.4, subds. (b) & (d); Urbano , supra , 128 Cal.App.4th at pp. 405

- 406 .)
T he trial court was aware through its review of the probation report that defendant had three kids and a limited employment history. And, certainly, the court w as cognizant of
the fact that it ordered defendant to pay $ 13,083 in direct victim restitution. Nonetheless, it was within the court’s discretion to order the maximum restitution fine based on the permissive statutory formula, which here calculates to an amount well above the statutory
maximum ($22,800)

. (§ 1202 .4, subd. (b)(1), (2).) Moreover, the court made it clear when it imposed the maximum fine that it had considered defendant’s request for the minimum , and “ express findings by the court as to the factors bearing on the amount of the fine are not required

. ” ( People v. Avila ( 2009 ) 46 Cal.4th 680 , 729.) For those reasons, we reject defendant’s claim that the trial court abused its discretion when it imposed the maximum
restitution fine. Nor has defendant shown that the court relied on unreliable or inaccu rate facts such that its imposition of the fine vio late d the due process clause. (See United States

v. Tucker (1972) 404 U.S. 443, 447

- 448.)
K. Strike Allegation Based on Juvenile Adjudication
Defendant contends that the prior strike allegation based on his juvenile adjudication of aggravated kidnapping ( § 209.5) violated his right to a jury trial under the federal and
state Constitutions because he had no right to a jury trial in the juvenile proceeding

. Defendant also contends that the use of the adjudication violated his jury trial rights because58

a jury did not find th at section 667, subdivision (d)(3)’s requirements for a juvenile adjudication to qualify as a strike were met

. 11

1. Trial Court Proceedings
Defendant waived his right to a jury trial on the prior strike allegation , which was based on his adjudication of aggravated kidnapping. At the conclusion of the court trial on the allegation, the court found beyond a reasonable doubt that defendant “suf fered a juvenile adjudication, pursuant to Welfare and Institution Code Section 602, for an offense listed in Welfare and Institutions Code Section 707(b), . . . kidnapping for the purpose of robbery, Penal Code Section 209.5, Santa Clara County Superior C ourt Case Y90681, and th[at] defendant committed the offense when he was 16 years old or older.” Based on its finding, the trial court doubled the sentence imposed on count 1.

2. Legal Principles The Three Strikes law “prescribes increased punishment for a person who is convicted of a felony after sustaining one or more qualifying prior felony convictions or juvenile adjudications, which are commonly known as strikes.” ( People v. Barragan (2004) 32 Cal.4th 236, 239.) “A qualifying juvenile adjudication mu st be pleaded and proved beyond a reasonable doubt [citations], and the defendant has a statutory right to jury trial on the issue of whether he or she suffered the prior adjudication [citations].” ( People v. Smith (2003) 110 Cal.App.4th 1072, 1079.)
In People v. Nguyen (2009) 46 Cal.4th 1007, 1010 ( Nguyen ), the California Supreme Court addressed whether the federal Constitution allows the use of a juvenile adjudication as a prior strike even though there is no right to a jury trial in the juvenile procee ding. “A

11 Section 667, subdivision (d)(3) provid es that a juvenile adjudication qualifies as a prior strike if the juv enile was at least 16 years old at the time of the offense; the offense is listed in Welfare and Institutions Code 707, subdivision (b) or described in paragraph (1) or (2) as a serious or violent felony ; t he juvenile was found fit to be dealt with under t he juvenile court law ; and th e juvenile was adjudged a ward of the juvenile court. (See also 1170.12, subd. (b)(3).)59

series of United States Supreme Court decisions, beginning with Apprendi v. New Jersey (2000) 530 U.S. 466 [(

Apprendi )], establishes an adult criminal defendant ’ s general right

. . . to a jury finding beyond reasonable doubt of any fact used to i ncrease the sentence for a felony conviction beyond the maximum term permitted by conviction of the charged offense alone.” ( Nguyen , supra , at p. 1010.) However, the United States Supreme Court excepted
from Apprendi ’ s general rule “the fact of a prior conviction,” which may properly be determined by the sentencing court. ( Apprendi , supra , at p. 490.) Thus, the California Supreme Court held in Nguyen that “ Apprendi does not bar the use of a constitutionally valid, fa ir, and reliable prior adjudication of criminal conduct to enhance a subsequent adult sentence simply because the prior proceeding did not include the right to a jury trial.” ( Nguyen , supra , at p. 1025.) “[T]he absence of a constitutional or statutory ri ght to jury trial under the juvenile law does not, under Apprendi , preclude the use of a prior juvenile adjudication of criminal misconduct to enhance the maximum sentence for a subsequent adult felony offense by the same person.” ( Nguyen , supra , at p. 10 28.) More recently, in People v. Gallardo (2017) 4 Cal.5th 120 ( Gallardo ), the California Supreme Court held that “[u]nder the Sixth Amendment to the United States Constitution, as interpreted in Apprendi . . . , any fact, other than the fact of a prior c onviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt.” ( Id. at p. 123.) “ ‘The Sixth Amendment contemplates that a jury

— not a sentencing court

— will find’ the facts giving rise to a con viction, when those facts lead to the imposition of additional punishment under a recidivist sentencing scheme. [Citation.]” ( Id. at p. 134.)
Nonetheless , the court reaffirmed “that determinations about the nature of prior convictions are to be made by the [sentencing] court, rather than a jury, based on the record of conviction.” ( Gallardo , supra , 4 Cal.5th at p. 138; see also People v. McGee (2006) 38 Cal.4th 682, 695 [“there has been a clear expression of legislative intent that a jury play a very li mited role in determining prior offense allegations and that a court, not a jury,60

examine records of prior convictions to determine whether the conviction alleged qualifies as a conviction under the applicable sentence

- enhancement provision”], overruled on another point in Gallardo , supra , at p. 134.)

3. Lack of Jury Trial Right in Juvenile Proceedings Relying primarily on the United States Supreme Court cases Descamps v. United
States (2013) 570 U.S. 254 ( Descamps ) and Mathis v. United States (2016) 579 U.S. 500 ( Mathis ) , as well as the California Supreme Court’s decision in Gallardo , supra , 4 Cal.5th 120, defendant urges us to determine that the use of his juvenile adjudication as a prior strike violated his constitutional right s to a jury trial because he had no right to a jury trial in the juvenile proceeding. We conclude otherwise.
In both Descamps and Mathis , the United States Supreme Court interpreted the federal Armed Career Criminal Act (18 U.S.C. § 924(e)) in light of the Sixth Amendment ’s limits on judicial factfinding recognized in Apprendi

. Both cases involved the sentencing

court s’ determinati on s that the alleged prior conviction s qualifie d as predicate offense s to enhance subsequent sentence s under the A ct

. ( Descamps , supra , 570 U.S. at p. 257; Mathis , supra , 579 U.S. at p. 503 .) The Supreme Court concluded that the sentencing court s w ere
ge nerally barred from looking beyond the statutory elements of the prior offense s to determine whether the defendant s’ conduct qualified for the imposition of a sentence
enhancement under the A ct

. (See Descamps , supra , at pp. 259, 268

- 269 [sentencing court impermissibly relied on plea colloquy to find defendant ’ s prior conviction for burglary involved unlawful entry]; Mathis , supra , at p p. 507

- 509 [sentencing court impermissibly relied on records of prior conviction to det ermine that defendant had burglarized structures rather than vehicles].) Importantly, neither case involved the constitutional validity of using a prior juvenile adjudication to enhance a sentence when the offender did not have the right to a jury trial i n the juvenile proceeding. Similarly, in Gallardo , the California Supreme Court limited the scope of permissible factfinding by a sentencing court in determining whether the defendant suffered a qualifying61

prior conviction. ( Gallardo , supra , 4 Cal.5th at p. 134 ; see id. at p. 126 [the sentencing court found the defendant’s assault conviction qualified as a prior strike based on the facts adduced at the preliminary hearing that the defendant used a deadly weapon] .) The court
did not overrule Nguyen ’ s hold ing that a sentencing court may validly impose a sentence
enhancement based on a defendant’s prior juvenile adjudication despite the lack of a jury
trial right in th e juvenile proceeding. Thus, Nguyen remains controlling precedent that a juvenile adjudica tion can constitutionally qualify as a prior strike despite the lack of a jury
trial right in th e juvenile proceeding

. ( See People v. Romero (2019) 44 Cal.App.5th 381, 389 [ Gallardo did not “call[] into question Nguyen ’s holding that a sentencing court ma y impose a sentence enhancement based on a prior juvenile adjudication, despite the lack of a right to a jury trial in that proceeding” ].) We are bound by Nguyen

. ( See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. ) Accordingly, pursuant to Nguyen , we determine that the use of defendant’s juvenile adjudication as a prior strike to enhance defendant’s sentence did not violate defendant’s rights to a jury trial despite that defendant had no right to a jury trial in the juvenile proceeding . (See Nguyen , supra , 46 Cal.4th at p. 1025.)

4. Lack of Jury Findings that the Adjudication Qualified as a Strike
Defendant contends that his jury trial right s w ere also violated because “[a] jury could only determine whether [he] was ad judicated to have committed an aggravated kidnapping when a juvenile. The jury was not permitted to find the other elements necessary [under section 667, subdivision (d)(3)] for this to be a strike.” However, as the Attorney General points out, defenda nt waived his right to a jury trial on the prior strike allegation , so it was the trial court, not a jury, that made all the findings regarding the truth of the prior strike allegation

. Thus, defendant cannot claim here that a jury should have determined whether section 667, subdivision (d)(3)’s requirements were met. Moreover, t he California Supreme Court reaffirmed in Gallardo that62

determinations pertaining to the nature or basis of a prior conviction are made by the sentencing court. ( Gallardo , supra , 4 Cal.5th at p. 138.) For these reasons, we reject defendant’s challenges to the trial court’s prior strike finding based on defendant’ s juvenile adjudication for aggravated kidnapping.
IV. DISPOSITION The judgment is reversed and t he matter is remanded for resentencing. On remand,

t he trial court is directed to strike the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) . The court shall also consider whether to exercise its discretion to strike the
firearm enhancement (Pen. Code § 12022.53, subd. (d)) or to impose a lesser firearm
enhancement (Pen. Code, § 12022.53, subds. (b), (c))

. Finally, the court shall vacate t he portion of the $129.75 criminal justice administration fee (Gov. Code, § 29550 et seq.) that
remaine d unpaid as of July 1, 2021 (see Gov. Code, § 6011)

. On remand, d efendant may raise his claim pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 that he is unable to pay the imposed fines and fees. Defendant may also
raise his claim that he is entitled to the reimbursement of any portion of the criminal justice administration fee that he has already paid because the fee was unauthorized

.BAMATTRE

- MANOUKIAN, ACTING P.J.

I CONCUR:

WILSON, J.

People v. Thompson H044699Lie, J., Concurring in the Judgment:

“ ‘The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.’ ” (Stats. 2020, ch. 317, § 2,

su bd. (c) (Assem. Bill No. 2542 (2019

- 2020) Reg. Sess.)), quoting Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (2014) 572 U.S. 291, 380

- 381 (2014) (dis. opn. of Sotomayor, J.).) I join the majority’s analysis in sections III.C

- III.D and III.F

- III.I (Maj. opn., ante , pp. 27

- 46 & 46

- 47) and its disposition of Gregory Jermaine Thompson’s appeal. I write separately on the dual issues of racial bias raised during jury selection

— (1) the dismissal of prospective juror Y.B., due in part to his concerns regarding systemic and implicit bias, and (2) the prosecutor’s reference to the fable of the scorpion and frog

— particularly as they relate to the selective resistance to speaking ope nly about race where necessary. Like the majority, I disagree with Thompson’s characterization of these as structural error. I further conclude that the cumulative errors were harmless under any standard, given the strength of the evidence at trial, part icularly the testimony of Jessie Gulley and its circumstantial corroboration by the surveillance video and the gunshot wound to his hand. But irrespective of the lack of actionable prejudice to Thompson’s prospects for a
more favorable verdict on this rec ord, the handling of these issues during jury selection amplified rather than mitigated the same systemic and implicit bias of which the trial court was unmistakably dubious.
I. “Cause” to Dismiss a Juror for Acknowledging Structural and Implicit Bias
I re spectfully disagree with the majority’s decision to treat as forfeited Thompson’s claim of error regarding the dismissal of Y.B. To my mind, Thompson adequately preserved his claim on this record. 12 Moreover, even if Thompson had not

12 When Thompson’s counsel declined to stipulate to Y.B.’s being excused for cause and asked to question him further, the trial court state d, “I’m going to excuse him65

preserved the claim, the doctrine of forfeiture is not mandatory. ( In re Sheena K. (2007) 40 Cal.4th 875, 887

- 888, fn. 7.) Where, as here, the response to a prospective juror’s acknowledgement of systemic bias is incredulity and dismissal, I believe we have an obligation to say plainly: Recognizing systemic bias does not make a person unfit to serve as a juror. (See, e.g., Stats. 2019, ch. 418, § 1 (Assem. Bill 242 (2019

- 2020 Reg. Sess.)); Code. Civ. Proc., § 231.7, subd. (d)(2)(A) [“an objectively reasonable person is

awa re that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors”]; id. , § 231.7, subd. (e) [peremptory challenge based on “belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner” is presumptively invalid]; see also Kang et al., Implicit Bias in the Courtroom (2012) 59 UCLA L.Rev. 1124, 1136

- 1137 [implicit bias among police] 1142 [among jurors, prosecutors, and defense co unsel], 1146 [among judges].) Accordingly, the trial court erred in treating Y.B.’s statement that “it is difficult” for a Black person to have a fair trial as legal cause to excuse him. (Cf., Code Civ. Proc., §§ 225, subd. (b)(1), 228, 229.) To be sur e, Thompson had no entitlement to Y.B.’s

for cause at this time, then. [¶] Thank you. [¶] I

-- I really don’t want that influencing the rest of the jury.” The court agreed to permit counsel to inquire only once she confirmed her intention to do so before the court p ermitted the panel to return. When counsel told Y.B. she was sorry the court was going to excuse him, stated her reasons for believing he would be a good juror, and said to the judge, “I know what you’re going to do, Your Honor,” the court scolded her for the manner of her comment

— “mak[ing] a statement in a

– in a question to a juror” rather than in an objection. But the court did nothing to correct counsel’s certainty that Y.B. was going to be excused; to the contrary, the trial court clearly understood counsel’s comments as an objection to this inevitability and accordingly made a point of stating for the appellate record its reasons for excusing Y.B. I do not believe more is required. ( See, e.g., People v. Scott (1978) 21 Cal.3d 284, 290 [ objection de emed preserved if, despite inadequate phrasing, “ the record shows that the court understood the issue presented ”]; People v. Partida (2005) 37 Cal.4th 428, 434

- 435 [rejecting “formalistic[]” application of objection requirement and construing objection un der Evid. Code, § 352 as sufficient to preserve related due process claim].)66

presence on the jury as ultimately constituted. ( People v. Tate (2010) 49 Cal.4th 635.) Y.B. could also legitimately be disqualified on the alternative, independent ground of his reluctance to serve as a juror wit hout input or knowledge as to sentencing, and the prosecutor had peremptory challenges to spare, in this trial prior to the effective date of Code of Civil Procedure section 231.7. But Thompson rightly notes that sanctioning the disqualification of prospe ctive jurors on the basis of their concerns about the fairness of the legal system to traditionally excluded minorities will have a disproportionate impact on prospective jurors from those very groups, Y.B.’s race aside. (See, e.g., People v. Suarez (2020 ) 10 Cal.5th 116, 193 (conc. opn. of Liu, J.) [“In many cases, the magnitude of racial disparities is greater among jurors excused for cause than among jurors excused through peremptory strikes.”].) To the extent the trial court’s questioning of Y.B. made clear to the jury panel the court’s skepticism as to the very existence of systemic bias in the legal system, I am sure that this skepticism reflected the good faith, trust, and dedication of a veteran public servant. But a long history of service in any institution

— perhaps especially for those of us privileged to have risen through its ranks

— can itself tend to normalize the institution’s shortcomings. In another case, where the question of the existence of bias might foreseeably inform the facts to be f ound by the jury, the trial court’s comments could have resulted in cognizable prejudice to a party. As it was, the trial court’s comments to Y.B. here risked communicating to all present that, for the court as an institution, systemic bias could be reduc ed ad absurdum to the rhetorical question, “[S]o how would we ever have a trial for a [B]lack person, then?”
II. The “Nature” of a Black Person on Trial for Murder As though to answer the court’s skepticism about systemic bias, the prosecutor the
next d ay drew the prospective jurors’ attention to the fable of the scorpion and the frog. I appreciate the majority’s acknowledgment that “some jurors who were familiar with the fable, based on their lived experiences and perceptions, could have believed it wa s race based.” (Maj. opn., ante at p. 24.) I would go further, however, both because the record67

suggests that the trial judge and counsel alike either lacked that recognition or were reluctant to address it directly, and because the unintended racial imp lications of the prosecutor’s comment were not limited in effect to those who could recognize those implications. The trial court, to its credit, immediately recognized upon Thompson’s objection that the fable at a minimum invited the prospective jurors to infer that Thompson had a propensity for violence. As another judge has observed, “[i]t is no doubt true that th e ‘frog and scorpion’ story has been told in various contexts to convey varying messages. The initial question, however, is not whether the story fit when President Reagan told it in connection with the intractable problems of the Middle East or what it m ight mean in some other context, but what its impact was in the context of this case . Here, the obvious import of the story was that the jury should consider the character and nature of the defendant . . . and do something akin to not picking up the scorp ion, i.e. convict him.” ( United States v. Lang (W.D.Okla. Jul. 13, 2007, No. CR

- 07

- 0080

- HE) 2007 U.S. Dist. LEXIS 56655, at *7

- 8 ( Lang ), fn. omitted, italics added [granting new trial in view of “plainly improper import of the prosecutor’s comments to the jury . . . [and] the absence of a timely curative instruction”].) To anyone on the panel who knew the fable, the prosecutor’s invocation of the scorpion and the frog effectively conveyed the message that Thompson was

—

by nature

— a deadly threat.
What thi s trial court likely did not then perceive, absent more explicit argument by defense counsel, was that deployment of the fable in the trial of a Black man

— particularly one charged with a violent and ostensibly motiveless crime

— echoed a durable racist trope of the “other” as intrinsically predatory, subhuman in its irrationality, and prone to repay trust with treachery. It is true that analogy and fable are not metaphor, and as the majority notes, the prosecutor never explicitly likened Thompson to a scorpi on. Given the context, however, the prosecutor had no need to: there is no one else68

in a homicide trial whose “nature,” acts, motive or lack of motive would be at issue. 13 Explicit reference to Thompson’s race was likewise unnecessary in this context: before the presentation of evidence or even opening statement, the prospective jurors had no foundational facts from which to infer anything about Thompson’s nature; what they knew of him at that point, beyond the charges of which he was presumed innocent, was that he was Black. Accordingly, it sufficed that the prosecutor drew the connection between the anticipated absence of motive in Thompson’s case, 14 the scorpion’s nature, and, by extension, Thompson’s. This allowed the “moral” of the interspecies fa ble, once set loose here in Thompson’s trial, to play on implicit racist preconceptions bred by
interracial fear. As the majority duly notes, “ ‘we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from th e prosecutor’s statements. [Citation.]’ [Citations.]” ( People v. Centeno (2014) 60 Cal.4th 659, 667.) But just as I presume the prosecutor did not intend or recognize his reference to the fable as a coded racial appeal, the biasing potential of that re ference likewise does not require a prospective juror’s conscious recognition of its racial meaning. For those whose implicit biases made them prone to be more fearful of Thompson than they might be of a defendant of their own or some other race, the fabl e would validate those fears while also

13 (See, e.g., Lang , supra , 2007 U.S. Dist LEXIS 56655, at *7 [finding

“ extraordinarily unpersuasive ” the government’s reliance on the prosecutor’s “ never [having] made any direct reference to the defendant as the scorpion ”].)

14 The prosecutor was entitled to probe their willingness to accept that point of law, which he appropriately did. Where he went too far was in next proffering a
reason

— one grounded not in law but in “n ature”

— that might mitigate the prospective jurors’ curiosity about why the crime occurred, absent evidence of motive: like the scorpion stinging the frog that ferried it across the river, it was just something intrinsic to Thompson’s nature.69

suggesting an illegitimate means of resolving them. 15 Conversely, for those who might be alert to the pervasiveness of implicit bias and the implications of the prosecutor’s use of the fable, the trial court’s skept ical questioning and dismissal of Y.B. would potentially inhibit their willingness in deliberations to counter comparable appeals to implicit bias by fellow jurors. I do not imagine that the irony of the prosecutor’s error following so soon after the tria l court’s rejoinder to Y.B.

— “[S]o how would we ever have a trial for a [B]lack person, then?”

— would have been lost on all the prospective jurors present. Thompson at oral argument contended that existing precedent adequately apprised
defense counsel and th e trial court of these hazards. Although it has long been controversial for a prosecutor in closing argument to explicitly deride criminal defendants as subhuman and, by implication, unworthy of civil rights, human rights, dignity, or mercy, it has seldom been treated as consequential. (See, e.g., People v. Powell (2018)
6 Cal.5th 136, 183 [“no prejudicial misconduct”]; People v. Brady (2010) 50 Cal.4th 547, 585 [“does not necessarily invoke racial overtones”]; People v. Duncan (1991) 53 Cal.3d 955, 976

– 9 77 [“no impropriety in the argument”]; see also Stats. 2020, ch. 317, § 2, subd. (e) [“Existing precedent tolerates the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials”].) In closing argument, prior to the effective date of the Racial Justice Act, resort to beast metaphors might be excused as zealous if potentially inflammatory comment on evidence actually received about a defendant’s actions. (See, e.g., People v. Krebs (2019) 8 Cal.5th 265, 341 [c ondoning

“ ‘wide range of epithets’ ”

— including “ ‘animal’ ”

— “ ‘to describe the egregious nature

15 This con cern is more than merely hypothetical on this record: at least one prospective juror remained on the panel despite privately expressing his own bias, namely his belief that the jury panel was rife with noncitizens unlawfully participating in jury selectio n. Nor should we disregard the corollary risk of prejudice to a Black witness
or victim of crime, by being deemed “naturally” less worthy of belief or protection

.70

of the defendant’s conduct,’ ” where supported by the evidence].) During voir dire, in contrast, prospective jurors have heard no evidence on which an attorne y might appropriately comment. But our high court has also instructed us that prosecutorial error during jury selection

— “a much less critical phase of the proceedings”

— is less likely to be prejudicial than at other stages. ( People v. Medina (1995) 11 Cal .4th 694, 741.) Accordingly, I do not believe we may presume that all competent attorneys and reasonable judges would have discerned the particular racial dimension of the brief comments in context here, without a more developed record.
It is unclear from defense counsel’s own statements whether she in fact recognized the racial implications of the prosecutor’s reference: “So I’m not sure exactly what he was going for, but it seems to me that . . . he was going to try to say that it was in Mr. Thompson’s nature to do whatever it is that he did. . . . [¶] And I

-- I can’t even

-- I can’t even speculate as to where he was going, but I think the damage may have already been done . . . .” Her comments are as consistent with an absence of recognition as with the familiar tactic of one accustomed to both recognizing invidious discrimination and simultaneously calculating the tactical risks of calling it out explicitly. But to preserve for appeal a claim as to the racial implications of the prosecutor’s comment s, it was critical for counsel to make that point plain for the trial court and, absent a mistrial, to request a curative instruction or a more searching examination of prospective jurors on this point. Without that exposition, the trial court lost an opp ortunity to counteract the potential impacts of the prosecutor’s use of the fable

— impacts exacerbated by trial court’s own incredulity in responding to Y.B.’s concerns about institutional racism. (See Cal. Code Jud. Ethics, canon 3B(6).) The combined effect of squeamishness in the trial court in identifying the racial dimension of conduct by an attorney or judge, and the common insistence on appeal that timely curative instruction could only backfire, is to capitulate to implicit bias as inexorable and prone only to intensify

— leaving it perpetually unexamined while71

pursuing a hypothetical perfect mistrial/retrial and jury. Just as precedent calls for us to presume jurors will endeavor in good faith to follow the trial court’s instructions on the law, we should presume their ability to heed a trial court’s appropriate correction of inappropriate comments of its own or of its officers, its identification of concrete manifestations of implicit bias, and it s call to recognize not only the persistence and systemic reach of implicit bias but our ability to account for it, with vigilance. The persistent belief that silence is preferable to any admonition, no matter how conscientiously crafted, instead mirrors the trial court’s conviction that even speaking of systemic racism would taint the entire panel. I choose to believe we can do bette r

.

LIE, J.

People v. Thompson H044699