Filed 5/11/23 P. v. Elias CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL A. CRUZ ELIAS,

Defendant and Appellant.

B319595

(Los Angeles County

Super. Ct. No. MA078183)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Robert G. Chu, Judge. Affirmed.

Richard A. Levy, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

A jury convicted Michael A. Cruz Elias1 of the murder of 

Jose Ahumada. At trial, the killer’s identity was in dispute. As 

to that issue, the trial court admitted evidence that Elias had 

participated in a shooting just weeks before Ahumada was killed 

and that bullets recovered from that shooting and the Ahumada 

shooting were fired from the same gun. On appeal, Elias 

contends that this evidence should have been excluded or limited. 

He also contends that the trial court made prejudicial comments 

during voir dire, should have instructed the jury on voluntary 

manslaughter, and should have dismissed a firearm 

enhancement under recently enacted law. We reject all 

contentions and affirm the judgment. 

BACKGROUND

I. The prosecution’s case

A. Wendy C.’s testimony

At Elias’s trial for Ahumada’s murder, Wendy C. was the 

prosecution’s main witness, and she testified under a grant of 

immunity. According to Wendy, she and Ahumada had met just 

a few months before March 2018 and would occasionally get 

together to drink and smoke marijuana. Although Ahumada 

wanted to be more than friends, Wendy refused. On the evening 

of March 5, 2018, Ahumada asked Wendy if she wanted to hang 

out. Wendy agreed but asked if her friend Elias could come with 

them, even though Elias and Ahumada had never met. Wendy

had known Elias for about a year, and although she said they had 

1

It is unclear if defendant’s surname is Cruz Elias or Elias. 

We refer to defendant as Elias, intending no disrespect. 
3

not been intimate, she also testified that they had been intimate 

“[o]nly a little bit.”

Ahumada picked up Wendy and Elias in his car.2 Wendy 

sat in the front passenger seat, and Elias sat in the backseat. 

After buying beer, they went to Ahumada’s “connect’s house”

where he bought cocaine. Then they went to “the view,” a place 

off of Pearblossom Highway in the mountains where they parked 

on a dirt road. Ahumada and Elias drank beer and snorted 

cocaine, and Wendy smoked marijuana.

They were all just sitting there quietly getting high and 

listening to music, when gunshots came from the backseat 

directed at Ahumada. In shock, Wendy saw blood everywhere. 

Ahumada was dead. At Elias’s direction, Wendy helped him put 

Ahumada’s body into the car’s trunk. Elias then drove Wendy

home. Wendy did not know what Elias did thereafter.

B. The investigation

The next day, March 6, 2018, the police received a report 

that a car had been abandoned at a location in North Hollywood

that was two blocks from where Elias lived. Law enforcement 

recovered the car, which belonged to Ahumada. Five 9-

millimeter bullets and Ahumada’s cell phone with the SIM card 

removed were recovered from the car. Subsequent testing found 

2 Wendy testified that Ahumada picked her and Elias up 

from her home. But Wendy had been reported missing since 

February 27, 2018, and she did not return home until two days 

after Ahumada was murdered.
4

Elias’s DNA on the steering wheel and interior rear driver’s 

door.

3

About seven months after Ahumada disappeared, his 

remains were discovered in a shallow grave in Lancaster near 

Highway 14. A medical examiner determined that he had

suffered multiple gunshot wounds but could not determine the 

exact number of wounds. However, a sweatshirt and t-shirt 

recovered with the remains had five bullet holes in them.

After law enforcement posted a reward for information 

about Ahumada, a tip led them to Wendy. Detectives interviewed 

her three times. During the first interview in November 2018, 

Wendy initially said she and Ahumada went to the view alone a 

long time ago, and she denied knowing Elias. After the detective 

exhorted Wendy to tell the truth, Wendy began to cry and said 

Ahumada had tried to “force” himself on her. She also admitted 

she hung out with Elias “a lot.” She then said a “white guy” high 

on cocaine was with her, Elias, and Ahumada that night at the 

view, the white guy and Ahumada argued, and the white guy 

shot Ahumada. She denied helping bury the body.

In her second interview with detectives in January 2019, 

Wendy at first maintained that the white guy killed Ahumada 

and denied that Elias was the shooter. The detectives then told 

Wendy that they knew there was no white guy, that Elias was 

the shooter, and that if she continued being dishonest then she 

could become an accessory to murder. Wendy then said Elias had 

killed Ahumada. She denied that anything happened just before 

Elias shot Ahumada, saying they were just doing drugs and 

3 The defense argued that the DNA evidence was, at most, 

consistent with Elias being an accessory after the fact by helping 

to bury the body.
5

listening to music. However, Ahumada had previously made 

advances at Wendy. Also, her relationship with Elias was 

“kinda” romantic. She didn’t know if Ahumada did anything to 

make Elias jealous, although she agreed that Elias was the 

jealous type. And when asked what led to the shooting and 

whether “it had something to do with this guy [Ahumada] having 

an interest in you,” Wendy said, “Maybe that.” 

C. Prior shooting evidence

Over a defense objection, the prosecution introduced 

evidence that Elias was involved in another shooting just weeks 

before Ahumada was murdered. Sandra Quintanilla testified

that on the evening of February 16, 2018, she was at a liquor 

store in Palmdale with two friends she identified as Listo and 

Kevin. They had all been drinking. While in the store, someone 

got into a physical altercation with the store’s clerk. Quintanilla, 

Listo, and Kevin left. Hours later, they were walking when a car 

approached them with five people inside, including the store’s 

clerk. Hostile words were exchanged. Quintanilla challenged 

them to a one-on-one fight, so she briefly went home to get a 

knife. When she got back outside, someone from inside the car 

shot at them. Quintanilla saw a person in the backseat chamber 

a round into a handgun and hand the gun to the driver, who shot 

the gun.

Not long after the shooting was reported to law 

enforcement, an officer stopped a car matching the description of 

the car involved in the shooting. Four, not five, men, including 

Elias, were in the car. No weapons were found.

Quintanilla identified Elias as the shooter from a 

photographic six-pack. However, at trial, the parties stipulated

that after the shooting, Quintanilla told an officer that the store 
6

clerk drove the car, and after retrieving the knife, she heard 

gunshots fired in her direction but did not see from where they 

were fired.

D. Firearm expert testimony

A firearm expert examined Ahumada’s car and, based on 

tests using a rod to determine the trajectory of bullets, opined 

that the shots were fired from the backseat. The firearm expert 

also analyzed bullets recovered from the Quintanilla shooting 

and bullets recovered from Ahumada’s car. He determined that 

they were fired from the same gun.4

II. Defense evidence

A forensic psychologist testified that detectives coerced 

Wendy’s statement implicating Elias. The expert said, “This was 

a very powerful session and focused on shifting Wendy from 

‘Mike had no involvement’ to ‘Mike was the shooter,’ and 

succeeded in doing that.”

III. Verdict and sentence

Elias was charged with and a jury found him guilty of 

second degree murder with a personal gun use allegation (Pen. 

Code,5 §§ 187, subd. (a), 12022.53, subd. (d)). On March 25, 2022, 

the trial court sentenced Elias to a total term of 40 years to life 

(15 years to life plus 25 years to life for the gun enhancement). 

4 We discuss the firearm expert’s testimony in greater detail 

below.

5 All further undesignated statutory references are to the 

Penal Code. 
7

DISCUSSION

I. Prior shooting evidence

Elias contends that evidence he was involved in another 

shooting in the weeks preceding Ahumada’s murder should have 

been excluded and that its admission violated his federal and 

state constitutional rights. As we now explain, we disagree.

A. Additional background

Before trial, Elias moved to exclude evidence of the prior 

February 2018 shooting involving Quintanilla on the grounds 

there was insufficient foundation, it was inadmissible under 

Evidence Code section 352, and admitting it would violate his 

state and federal constitutional rights. As to foundation, defense 

counsel argued that Quintanilla saw a man in the car hand Elias 

a gun but did not see Elias fire a gun. The prosecutor countered 

that it was expecting to use the evidence to negate self-defense or 

accident, but that it would also be admissible to establish 

identity, as bullets recovered from both crimes were fired from 

the same gun. The trial court admitted the evidence, finding that 

Elias’s possession of a gun, even though prejudicial, was 

“extremely probative” and not outweighed by the probability it 

would consume an undue amount of time, create a danger of 

undue prejudice, or confuse or mislead the jury. 

B. The trial court did not abuse its discretion by

 admitting the evidence

Only relevant evidence is admissible. (Evid. Code, § 350.) 

Relevant evidence is “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 
8

consequence to the determination of the action.” (Id., § 210.) 

Generally, evidence of prior criminal acts is inadmissible to show 

a defendant’s disposition to commit such acts. (Id., § 1101, 

subd. (a).) However, evidence that a person committed an 

uncharged crime may be admitted to prove something other than 

the defendant’s character, such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, or absence of mistake, as 

well as to attack or support the credibility of a witness. (Id., 

§ 1101, subds. (b), (c).) Even if evidence is admissible under 

Evidence Code section 1101, it may be excluded under Evidence 

Code section 352 if its probative value is substantially 

outweighed by the probability its admission will necessitate 

undue consumption of time or create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.

Although admitting evidence of a defendant’s prior 

criminality could prejudice the defendant’s case and render 

suspect the trial’s outcome, whether to admit such evidence rests 

in the trial court’s sound discretion. (People v. Harris (1994) 22

Cal.App.4th 1575, 1580–1581.)

Here, Elias first argues that the trial court failed to comply 

with its gatekeeping function to determine by a preponderance of 

the evidence the existence of the prior uncharged act and his 

connection to the act as preliminary factual issues. (Evid. Code, 

§ 403, subd. (a); People v. Winkler (2020) 56 Cal.App.5th 1102, 

1144.) Specifically, Elias argues that the trial court was required 

to find by a preponderance of the evidence that the gun belonged 

to him and that he would have continued to possess it three 

weeks later when Ahumada was killed. Elias thus asserts that 

all the proffer showed was he had constructive, as opposed to 

actual, possession of the gun. 
9

We disagree the trial court had to find that Elias owned the 

gun before it could admit the evidence. Rather, the trial court 

had to find that Elias was connected to the prior shooting and the 

gun. (See People v. Winkler, supra, 56 Cal.4th at p. 1144.) The 

proffer of evidence before trial was that Quintanilla identified 

Elias as one of the car’s occupants and saw someone hand him 

the gun. This was sufficient to show by a preponderance of the 

evidence that Elias was connected to the gun that, three weeks 

later, was used to kill Ahumada. That evidence was thereafter 

introduced at trial that Quintanilla gave different statements 

about who the driver was—she identified Elias as the driver and 

shooter from a photographic six-pack, but she told an officer soon 

after the incident that the store’s clerk drove the car and she 

didn’t see who fired the shots—went to the weight of the evidence 

and not its admissibility.

For these reasons, People v. Smith (1921) 55 Cal.App. 324, 

which Elias cites, is distinguishable. In that case, the People’s 

theory was that the defendant murdered his wife by poisoning 

her with cyanide. The prosecutor admitted evidence that a can of 

cyanide was in the filing room of the truck company the 

defendant worked for, and defendant had been seen coming in 

and out of the room. (Id. at p. 331.) The court found that the 

evidence should have been excluded because there was no 

evidence connecting the defendant to the can of cyanide other 

than that it was in a room at his workplace and because there 

was no evidence the defendant knew of the can’s existence. In 

contrast, the evidence here is that Elias was in a car with just 

three or four other people and that someone passed the gun to 

him. Thus, Elias knew about the gun and possessed it. 
10

Elias next contends that even if the prior shooting was 

admissible under Evidence Code section 1101, it should have 

been excluded under Evidence Code section 352. His argument 

again rests on the notion that there was insufficient evidence he 

owned the gun and was the one who used it in the prior incident. 

As we have said, establishing ownership of the gun was 

unnecessary. Rather, the highly probative value of the evidence 

was that Elias was involved in a prior shooting with the gun later 

used to kill Ahumada. (See, e.g., People v. Sanchez (2019) 7 

Cal.5th 14, 55–56 [evidence defendant had a gun shortly before 

at-issue murders properly admitted]; People v. Carpenter (1999) 

21 Cal.4th 1016, 1052 [same].) The evidence therefore went to 

identity.

And even had Quintanilla not testified that Elias was the 

shooter, Elias’s mere involvement in that prior shooting was a 

sufficient basis to admit the evidence because it still showed his 

connection to the gun, raising the reasonable inference he was 

able to access it three weeks later to kill Ahumada. Moreover, 

the evidence did not consume undue time, as it was limited to two 

witnesses (Quintanilla and an officer) and a stipulation. Nor was 

there a risk it would confuse or mislead the jury. Instead, the 

issue was simple: three weeks before Ahumada was shot, Elias 

had the gun used to shoot Ahumada.

For the same reasons, Elias’s trial was not fundamentally 

unfair. (See generally Estelle v. McGuire (1991) 502 U.S. 62, 70; 

People v. Partida (2005) 37 Cal.4th 428, 439 [even incorrect 

evidentiary ruling denies a defendant due process of law only if it 

makes trial fundamentally unfair].)
11

II. Firearm expert testimony

Relying on People v. Azcona (2020) 58 Cal.App.5th 504 

(Azcona), Elias contends that the trial court erred by allowing the 

firearm expert to testify that the bullets from the Quintanilla

and Ahumada shootings were fired from the same gun.

Azcona, supra, 58 Cal.App.5th at page 508, involved a 

series of shootings occurring over a one-month period. At the 

defendant’s trial for those shootings, the prosecution’s firearm 

expert testified that bullet casings recovered from two crime 

scenes were fired from the same gun “ ‘to the practical exclusion 

of all other guns.’ ” (Id. at p. 510.) The expert based his 

conclusion on his visual comparison of the casings. The 

defendant had objected to the expert’s testimony, arguing that 

recent studies undermined the reliability of visually comparing 

toolmarks on bullet casings such that it was no longer admissible 

under People v. Kelly (1976) 17 Cal.3d 24, 32, which held that a 

scientific technique is admissible in California if it is generally 

accepted in the scientific community. The Court of Appeal found 

that even if Kelly applied to the toolmark examination at issue, 

the defendant, who relied heavily on three reports, two from the 

National Academy of Sciences, criticizing that technique, had not 

met his burden of showing that a clear majority of the scientific 

community no longer accepted the technique as reliable. (Azcona, 

at pp. 512–513; see also People v. Cowan (2010) 50 Cal.4th 401, 

470 [ballistics comparisons and toolmark identification through 

the use of molds were not new techniques beyond common 

understanding and not subject to Kelly].) Azcona, at page 513, 

thus was “unable to say, on this record, that firearm toolmark 

comparison testimony is no longer admissible in California.” 
12

Nonetheless, Azcona, supra, 58 Cal.App.5th at page 513, 

went on to find that the trial court had failed in its gatekeeping 

function of ensuring that the expert’s opinions were supported by 

material on which the expert relied. Where significant criticism 

of the expert’s method has been presented, a trial court must

“carefully determine what conclusions can reliably be drawn from 

the methodology in question.” (Ibid.) By allowing “unfettered 

expert testimony that went far beyond what the underlying 

material supported”—that the matching marks on the casings 

were “ ‘much more than can ever happen by random chance,’ and 

therefore the projectiles came from the same gun, ‘to the practical 

exclusion of all other guns’ ”—the trial court abandoned its 

gatekeeping function because the expert’s conclusion was 

supported merely by his broad reference to numerous studies on 

the subject to see what can happen by random chance. (Id. at pp. 

513–514.) 

Elias interprets Azcona as holding that visual comparisons 

of bullets or casings, although admissible, are insufficient to 

allow an expert to express a scientific certainty in the opinion. 

He therefore argues, as he did below, that the firearm expert 

could only testify that the bullets from the two crimes were 

consistent with having been fired from the same gun.

The first problem with this argument is that the firearm 

expert here did not testify that the bullets were fired from the 

same gun to any degree of scientific certainty. In contrast, the 

Azcona expert testified, “ ‘It would be in the billions to be wrong 

on this’ ” and “ ‘it is so certain that I don’t think there’s any 

reasonable chance that it’s wrong.’ ” (Azcona, supra, 58 

Cal.App.5th at p. 519 [conc. opn. of Greenwood, P.J.].) The 

firearm expert here made no similar statement and was not 
13

asked to opine on any scientific certainty he had regarding his 

opinion. 

The second problem is that we do not interpret Azcona as 

holding that visual toolmark comparisons are, as a matter of law, 

so scientifically suspect that wholesale limitations must be placed 

on firearm expert testimony in all cases. Rather, Azcona held 

there was insufficient foundation in that case for the expert’s 

testimony that the casings were fired from the same gun with 

scientific certainty. The defense in Azcona had presented 

criticism of toolmark visual analysis in the form of three reports 

and an expert’s testimony. Here, however, defense counsel did 

not present any reports, expert testimony, or other evidence 

criticizing the specific ballistics methodology. Defense counsel 

merely cited Azcona6to support her argument that the firearm 

expert was limited to saying the bullets appeared to be consistent 

with being fired from the same gun. Defense counsel otherwise 

did not respond to the prosecutor’s proffer that his firearm 

expert’s methodology differed from the “line counting method” the 

Azcona expert used; that is, the Azcona expert testified that his 

identification criteria required six individual marks in a row 

made by the firing pin. (Azcona, supra, 58 Cal.App.5th at p. 510.) 

The prosecutor here said his firearm expert instead used a 

“totality-of-the-circumstances” examination to reach his 

conclusion the bullets were fired from the same gun.7 The 

6 The concurrence in Azcona summarized the reports.

7 Defense counsel responded to the prosecutor’s proffer by 

pointing out that “nobody has the entire universe of guns 

available at their disposal to be able to” state they were fired 

from the same gun, especially where, as here, the gun was never 
14

firearm expert thereafter testified at trial that he examined the 

bullets’ rifling characteristics, referring to the spiral grooves in a 

gun’s barrel that “impart twist to the bullet” to give it accuracy. 

In this case, the bullets had polygonal rifling. The expert then 

referred to a database into which rifling characteristics are 

entered. From this, the expert narrowed down the bullets’ 

possible manufacturers. Thus, while the Azcona expert and the 

firearm expert here both used a visual toolmark analysis, the 

firearm expert here examined rifling characteristics and not 

marks made by the firing pin. 

The firearm expert also presented a basis for his conclusion 

that the bullets recovered from both shootings were fired from 

the same gun. He said that when a gun is manufactured, 

inherent microscopic details make a gun barrel unique so that 

when a bullet is fired from it, these details are imparted to the 

bullet. The firearm expert testified that in 100 years of 

traditional firearms identification, no one has seen two gun 

barrels, even from the same production line, exhibit the same 

individual characteristics. The expert had personally 

participated in national studies in which he was given 15 

unknown fired bullets fired from 10 consecutively manufactured 

barrels off the same production line having the same operator, 

tool, speed rate, and metals, and he was able to match each bullet 

to the barrel from which it had been fired. Defense counsel did 

not cross-examine the expert about his bullet comparison 

testimony.

recovered. In response, the trial court said, “Well, I don’t know 

that; right? If this expert has the experience and the foundation 

is laid for him to make that definitive conclusion, I’ll allow it. 

Obviously, you can cross him on that conclusion.”
15

We conclude that no error occurred in admitting the 

firearm expert’s testimony, and therefore we have no need to 

address prejudice. Still, it is notable that the defense did not 

argue that the ballistics evidence should be excluded. The 

defense instead argued that the firearm expert should be limited 

to saying that the bullets from the two crimes were consistent 

with being fired from the same gun, i.e., the bullets used to kill 

Ahumada and those used to shoot at Quintanilla were consistent 

with having been fired from the same gun. Thus, the evidence—

even using Elias’s watered down formulation of it—still 

connected him to the gun used to murder Ahumada. 

III. Failure to instruct on voluntary manslaughter

Elias contends that the trial court erred in not sua sponte 

instructing the jury on voluntary manslaughter, heat of passion. 

We disagree that the trial court had a duty to instruct on that 

theory.

A trial court must instruct on all general principles of law

relevant to the issues raised by the evidence, including lesser

included offenses, even in the absence of a request. (People v.

Smith (2013) 57 Cal.4th 232, 239.) Instruction on a lesser

included offense is required when there is evidence the defendant

is guilty of the lesser, but not the greater, offense. (People v.

Landry (2016) 2 Cal.5th 52, 98.) This duty is not satisfied by

instructing on only one theory if other theories are supported by

the evidence. (People v. Lee (1999) 20 Cal.4th 47, 61.) 

Substantial evidence is that which a reasonable jury could find

persuasive. (People v. Williams (2015) 61 Cal.4th 1244,

1263.) The existence of any evidence, no matter how weak, will

not justify an instruction (ibid.), but the testimony of a single
16

witness, including the defendant, may suffice (People v. Wyatt

(2012) 55 Cal.4th 694, 698).

We independently review whether the trial court erred by

failing to instruct on a lesser included offense. (People v.

Nelson (2016) 1 Cal.5th 513, 538.) In making this determination,

we do not evaluate the credibility of the witnesses. (People v.

Wyatt, supra, 55 Cal.4th at p. 698.) We view the evidence in the

light most favorable to the defendant. (People v. Millbrook (2014)

222 Cal.App.4th 1122, 1137.)

Voluntary manslaughter is the intentional but

nonmalicious killing of a human being, and is a lesser included

offense of murder. (§ 192, subd. (a); People v. Nelson, supra, 1

Cal.5th at p. 538; People v. Moye (2009) 47 Cal.4th 537, 549.) 

A killing may be reduced from murder to voluntary manslaughter

if it occurs upon a sudden quarrel or in the heat of passion on

sufficient provocation, or if the defendant kills in the

unreasonable but good faith belief that deadly force is necessary

in self-defense. (People v. Landry, supra, 2 Cal.5th at p. 97;

Moye, at p. 549.) 

“The heat of passion sufficient to reduce murder to

manslaughter ‘exists only where “the killer’s reason was actually

obscured as the result of a strong passion aroused by a

‘provocation’ sufficient to cause an ‘ “ordinary [person] of average

disposition . . . to act rashly or without due deliberation and

reflection, and from this passion rather than from

judgment.” ’ ” ’ ” (People v. Landry, supra, 2 Cal.5th at p. 97.) 

Thus, heat of passion manslaughter has objective and subjective

components. (People v. Moye, supra, 47 Cal.4th at p. 549; People

v. Enraca (2012) 53 Cal.4th 735, 759.) The “provocation which

incites the defendant to homicidal conduct in the heat of passion
17

must be caused by the victim [citation], or be conduct reasonably

believed by the defendant to have been engaged in by the victim”

(People v. Lee, supra, 20 Cal.4th at p. 59), and must have been

sufficiently provocative to cause an ordinary person of average

disposition to act rashly or without due deliberation and

reflection, i.e., “ ‘from this passion rather than from judgment’ ”

(People v. Beltran (2013) 56 Cal.4th 935, 939). To satisfy

the subjective component, the defendant must have killed while

under the actual influence of such a strong passion induced by

legally adequate provocation. (Moye, at p. 550; People v.

Millbrook, supra, 222 Cal.App.4th at p. 1139.) The passion

aroused may be any violent, intense, high-wrought or

enthusiastic emotion other than revenge. (Millbrook, at p. 1139.) 

Substantial evidence to support an instruction may exist even in

the face of inconsistencies presented by the defense itself and

when the defense fails to request the instruction based on trial

tactics. (In re Hampton (2020) 48 Cal.App.5th 463, 480.) 

To support his argument that there was sufficient evidence

to give a voluntary manslaughter instruction, Elias first refers to 

Wendy’s statements that he and Ahumada were romantically 

interested in her. Elias then cites Wendy’s statement that once 

when she was at the view with Ahumada, he tried to force 

himself on her. From this, Elias posits that he shot Ahumada 

because he reasonably believed, rightly or wrongly, that 

Ahumada was forcing himself on Elias’s “paramour.”

Even if we assumed Ahumada made some kind of advance 

to Wendy that night, there is still no evidence of the objective and

subjective components of voluntary manslaughter. That is,

assuming Ahumada did something that could be perceived as

inappropriate, what precisely did he do? Did he make an off-color
18

comment to Wendy, touch her, try to kiss her? There is no

evidence of what he specifically did that might have constituted

legally adequate provocation such that it caused Elias to shoot

him. (See generally People v. Beltran, supra, 56 Cal.4th at

p. 957.) There was similarly no evidence Elias was actually

influenced by such a strong passion caused by that provocation

rather than from judgment. (Id. at p. 939; see, e.g., People v.

Manriquez (2005) 37 Cal.4th 547, 585 [no testimony that victim’s

insults enraged defendant].) To the contrary, that Elias had a

gun could undercut any argument he acted in a heat of passion:

why bring a gun to a social event if you are just planning to hang

out and look at the view? 

IV. Trial court’s comments during voir dire

Elias contends that during voir dire the trial court 

improperly emphasized the importance of circumstantial 

evidence in a case where, as the prosecutor said in argument, 

circumstantial evidence was the star witness. As we explain, our 

review of voir dire shows that the trial court did not make 

statements favoring the prosecution.8

A trial court must refrain from making comments before 

the jury suggesting it has allied itself with one side or the other. 

(People v. Seumanu (2015) 61 Cal.4th 1293, 1320; see also People 

v. Tatum (2016) 4 Cal.App.5th 1125, 1130.) In Tatum, for 

example, the trial court told prospective jurors during voir dire 

that they would judge witnesses’ credibility and not to prejudge 

8 The People argue that the defense did not object to the 

comments, thereby forfeiting the issue. (See generally People v. 

Monterroso (2004) 34 Cal.4th 743, 781.) We nonetheless address 

the issue on the merits. (See generally § 1259.) 
19

anybody. The trial court then gave an example of prejudgment, 

saying that based on her horrible experiences with plumbers, she 

did not believe a plumber would tell the truth. Such 

prejudgment, the trial court concluded, would be unfair. The 

defense moved for a mistrial based on the trial court’s comments 

because the defense alibi witness was a plumber. (Tatum, at 

pp. 1128–1129.) The trial court denied the motion, but the Court 

of Appeal held it should have been granted because the judge’s 

comments bore on the credibility of a witness. (Id. at p. 1131.) 

Nothing remotely like what happened in Tatum occurred 

here. The trial court here did not express bias in favor of 

circumstantial evidence. Rather, our review of the entirety of 

voir dire shows the trial judge and counsel emphasized that 

direct and circumstantial evidence were equally valid. The 

record shows that circumstantial evidence was first addressed 

during voir dire of the jury panel,9 when the prosecutor gave 

examples of direct and circumstantial evidence. After telling 

jurors they would be instructed that direct and circumstantial 

evidence are “the same” with neither being better than the other, 

the prosecutor gave another example of circumstantial evidence. 

In the example, the prosecutor stops his car because cars in front 

of him have stopped. However, the car behind the prosecutor 

fails to stop and hits him. When questioned by CHP, the driver 

who hit the prosecutor said a third person hit her and pushed her 

into the prosecutor’s car. CHP sees no damage to the back of the 

car that hit the prosecutor, and so writes that person a ticket. 

Later, the trial court returned to the topic of evidence, 

saying that although “everybody would want direct evidence 

9 Members of the panel were seated and heard the 

challenged comments.
20

because, you know, if you have a situation where someone saw 

something happen, a lot of people may prefer that.” The trial 

court then said, “But [the prosecutor] gave a great hypothetical 

regarding the car accident where circumstantial evidence . . . is 

also very valuable in proving some things happening.” The trial 

court then asked a prospective juror if the juror would follow an 

instruction to evaluate direct and circumstantial evidence 

equally. The prospective juror agreed.

Elias argues that the trial court calling the prosecutor’s 

hypothetical “great” “tipped the balance in favor of the 

prosecution’s case.” It did no such thing. In context, the trial 

court was clearly saying that the hypothetical was great, not that 

circumstantial evidence is so great that it can prove a suspect’s 

guilt even if the evidence is weak. Indeed, the totality of the voir 

dire shows that the trial court, as well as counsel,10 told the jury 

the exact opposite: that circumstantial and direct evidence are to 

be treated equally and that if the prosecution did not prove its 

case beyond a reasonable doubt based on circumstantial evidence, 

the jurors had to find the defendant not guilty.

Nor do we agree that the trial court “enhance[d] the value 

of the circumstantial evidence” during a colloquy with a 

prospective juror. During defense voir dire, a prospective juror 

commented that circumstantial evidence was imperfect and not 

“strong enough evidence.” The trial court addressed the juror, 

saying that no “evidence is really ever perfect” and rarely is there 

video of the incident. The trial court then gave two hypotheticals, 

10 Defense counsel, for example, told jurors that direct and 

circumstantial evidence are both “acceptable” and that if there is 

a reasonable interpretation of the circumstantial evidence 

pointing to innocence, then the jury had to acquit.
21

one in which a juror believed that circumstantial evidence proved 

the case beyond a reasonable doubt and another in which the 

juror did not believe that. The trial court explained, “That’s all 

we’re asking everybody to do . . . whether it’s direct evidence or 

circumstantial evidence, you have to listen to that and you have 

to decide whether that evidence is strong enough for you to 

believe beyond a reasonable doubt that these certain things are 

proven, right? [¶] And sometimes circumstantial evidence, you 

may think . . . that evidence is not strong enough. I don’t believe 

that raises to proof beyond a reasonable doubt. Sometimes the 

circumstantial evidence, you’ll feel like, you know what? That’s 

enough for me. That—based on everything together, I think that 

is enough for me. Again, that’s exactly what we’re asking you to 

do.”

By this, the trial court did not tell prospective jurors to 

elevate circumstantial evidence above direct evidence. Rather, to 

the extent the prospective juror was saying circumstantial 

evidence was insufficient to prove the elements of a crime beyond 

a reasonable doubt, the trial court properly disabused the 

prospective juror of that misunderstanding. The trial court thus 

ensured that prospective jurors correctly understood the law, 

that, as the jurors were later instructed, circumstantial and 

direct evidence are both acceptable types of evidence, with 

neither necessarily more reliable than the other, and with neither 

being entitled to greater weight than the other. (CALCRIM 

No. 223.) In short, nothing in the trial court’s pretrial remarks 

misstated or diluted the burden of proof or was likely to confuse 

or mislead the jury as to the process for determining the case. 

(See People v. Freeman (1994) 8 Cal.4th 450, 503–505.)
22

Elias’s attempt to analogize this case to People v. Lyons 

(1956) 47 Cal.2d 311 and People v. Moore (1954) 43 Cal.2d 517, 

thus fails. The defendant in Lyons was on trial for two counts of 

lewd conduct on two young girls. The trial court gave a standard 

cautionary instruction stating that jurors were required to 

examine the prosecuting witnesses’ testimony with caution. 

(Lyons, at p. 320.) But the trial court modified the instruction, 

adding in its own handwriting: “ ‘and the fact that the charge 

here made is one difficult to disprove should not deter you from 

rendering a verdict of guilty, if you are convinced beyond a 

reasonable doubt that the defendant is guilty.’ ” (Ibid.) In the 

Court of Appeal’s view, although the addition was not a 

misstatement of law, it unnecessarily emphasized a point already 

made—that viewing the victim’s testimony with caution was not 

a bar to a finding of guilt—and therefore could suggest that the 

trial court was inclined to believe the defendant was guilty. (Id. 

at pp. 322–323.) 

Similarly, in People v. Moore, supra, 43 Cal.2d at pages 526 

to 527, the trial court gave two instructions on self-defense that, 

although not misstatements of law, were stated from the 

prosecution’s viewpoint instead of impartially as between the 

People and the defendant. In the absence of an instruction 

stating the law of self-defense from the defendant’s viewpoint, an 

impression could have been created in the jury’s mind that the 

judge believed that self-defense had not been established. (Id. at 

p. 527.)

Lyons and Moore are distinguishable because they concern 

jury instructions and not comments made during voir dire. 

The comments here did not amount to instruction. (See People v. 

Seumanu, supra, 61 Cal.4th at p. 1357 [challenge to trial court’s 
23

comments during voir dire is claimed judicial error, not 

instructional error].) In any event and as we have said, the trial 

court’s comments were proper. They did not misstate the law or 

suggest that the trial court believed circumstantial evidence was 

somehow more worthy than direct evidence. 

For the same reasons, we reject Elias’s contention that the 

trial court’s statements rendered his trial fundamentally unfair. 

(See generally Partida, supra, 37 Cal.4th at p. 439.) 

V. Trial court’s comment about reasonable doubt

In a related argument, Elias contends that during voir dire 

the trial court urged jurors to make decisions based on their 

hearts rather than on an analysis of the evidence. We discern no 

prejudicial error.

A well-settled rule is that it is improper to tell jurors that 

emotion may reign over reason and a critical and neutral 

evaluation of the evidence. (People v. Holmes, McClain and 

Newborn (2022) 12 Cal.5th 719, 788–789; People v. Covarrubias

(2016) 1 Cal.5th 838, 894.) Elias argues that the trial court twice 

violated this rule, first when telling a prospective juror, “Let’s 

say, that there’s only circumstantial evidence in this case, but the 

detectives piece together all their evidence so well that in your 

mind you believe that based on everything that you’ve heard, 

because, you know, the witness testimony was consistent with 

the physical evidence, again, they pieced together everything. So 

in your mind, you felt that the prosecutor proved its case beyond 

a reasonable doubt based on circumstantial evidence. [¶] Could 

you vote guilty in that situation if you in your heart believed that 

they proved their case beyond a reasonable doubt?” (Italics 

added.)
24

The trial court asked a second prospective juror if the juror 

could vote not guilty if the juror believed that the prosecutor had 

not proven the elements of the crime beyond a reasonable doubt, 

even if the prosecution called 200 witnesses. The trial court then 

asked, “Let’s say, the prosecutor called one witness. But based on 

that one witness’s testimony, you feel in your heart that based on 

that one witness’s testimony and the evidence presented, it was 

enough to prove beyond a reasonable doubt that the defendant is 

guilty. [¶] In that situation, you would have to vote guilty, could 

you do that?” (Italics added.)

We do not agree that the trial court’s comments can 

reasonably be interpreted as urging jurors to base any decision on 

a vague emotion, i.e., their “heart,” as opposed to a critical and 

neutral evaluation of the evidence. Indeed, in the first comment, 

the trial court referred to making decisions based on evidence—

witness testimony and physical evidence—that created in the 

juror’s “mind” proof beyond a reasonable doubt. And in the 

second comment, the trial court again referred to evidence—

witness testimony and other evidence—that was not enough to 

prove beyond a reasonable doubt the elements of the crime. In 

both instances, the trial court linked “heart” to the reasonable 

doubt standard; that is, jurors had to believe in their hearts that 

the elements of the crime were proven beyond a reasonable 

doubt.

In a similar case, the prosecutor argued to the jurors that if 

they “ ‘have that feeling, that conviction, that gut feeling that 

says yes, this man is guilty, he’s guilty of these crimes . . . beyond 

a reasonable doubt.’ ” (People v. Barnett (1998) 17 Cal.4th 1044, 

1156.) The defendant argued that telling jurors guilt could be 

based on a “gut feeling” would have led them to think they could 
25

convict him on a standard of proof lower than reasonable doubt. 

(Ibid.) The court rejected that argument, saying that the 

prosecutor was merely telling jurors to trust their gut feelings in 

assessing witness credibility and conflicts in the testimony. 

(Id. at p. 1157.) Moreover, the prosecutor otherwise told jurors to 

examine the evidence. 

The cases Elias cites do not otherwise persuade us that the 

comments here were erroneous. In United States v. Hernandez 

(3rd Cir. 1999) 176 F.3d 719, 729, the trial court told jurors that 

there was no specific definition of reasonable doubt, rather, “It’s 

what you in your own heart and your own soul and your own 

spirit and your own judgment determine is proof beyond a 

reasonable doubt.” (Italics omitted.) In State v. McMillan (2010) 

44 Kan.App.2d 913, 920, the prosecutor said what reasonable 

doubt comes down to is “if you, in your hearts and in your minds, 

after hearing all the evidence and taking all the evidence into 

consideration, you feel in your hearts and in your minds that the 

State had proven each and every element of the crime charged, 

you have reached that reasonable doubt standard and you must 

find the defendant guilty.” The appellate courts in both cases 

found the comments to be error.

The comments in United States v. Hernandez completely 

divorced the concept of “heart” from the reasonable doubt 

standard, saying that there was no definition of reasonable doubt

so instead the jurors should follow their hearts. In contrast, the 

trial court here linked the two, saying jurors had to believe in 

their hearts that the crime had been proven beyond a reasonable 

doubt. As for State v. McMillan, we are not inclined to agree with 

its finding that the comments were error, and, in any event, we 

are not bound by this non-California authority. (People v. Troyer
26

(2011) 51 Cal.4th 599, 610 [California courts not bound by out-ofstate authorities]; People v. Williams (2013) 56 Cal.4th 630, 668 

[federal appellate decisions not binding on California courts].)

11

In any event, any misstatement by the trial court did not 

prejudice Elias, because the jury was properly instructed and 

both counsel properly stated the reasonable doubt standard in 

their arguments. As to the instructions, the trial court gave the 

standard reasonable doubt instruction, CALCRIM No. 220, which 

directed that proof “beyond a reasonable doubt is proof that 

leaves you with an abiding conviction that the charge is true. 

The evidence need not eliminate all possible doubt because 

everything in life is open to some possible or imaginary doubt. In 

deciding whether the People have proved their case beyond a 

reasonable doubt, you must impartially compare and consider all 

the evidence that was received throughout the entire trial. 

Unless the evidence proves the defendant guilty beyond a 

reasonable doubt, he is entitled to an acquittal and you must find 

him not guilty.” The trial court also instructed the jury to follow 

the law as instructed (CALCRIM No. 200) and not to take 

anything the trial court “said or did during the trial as an 

indication of what I think about the evidence, the witnesses, or 

what your verdict should be” (CALCRIM No. 3530). We presume 

that the jury followed the instructions given. (People v. Silveria 

and Travis (2020) 10 Cal.5th 195, 271–272.) 

As to what counsel said, the prosecutor in closing argument 

read a part of CALCRIM No. 220 to the jury, that jurors had to 

have an abiding conviction the charge is true. The prosecutor 

11 We also note that the court found the error did not 

prejudice the defendant. (State v. McMillan, supra, 44 

Kan.App.2d at pp. 923–924.)
27

added that jurors had to be “convinced” they “made the right call. 

There was a lot of evidence that it was him.” The prosecutor told 

the jury that 100 percent was not required, but it had to be 

convinced beyond a reasonable doubt. That is, “you’re convinced 

beyond a reasonable doubt . . . [if] the evidence you heard that 

fits all the facts that you heard is that he’s guilty. The only 

reasonable explanation that fits all the evidence.” Defense 

counsel similarly told jurors that reasonable doubt meant there 

was only one reasonable way to interpret the evidence. The law 

requires jurors to have “a lasting, abiding conviction that the 

charge is true, and that there’s no reasonable explanation for the 

evidence that points to innocence.”

Given the instructions and the argument, it not reasonably 

likely that any misstatement during voir dire caused a juror to 

convict Elias on a standard lower than reasonable doubt. (See, 

e.g., People v. Barnett, supra, 17 Cal.4th at p. 1157 [likelihood 

prosecutor’s comment caused misunderstanding mitigated by 

trial court’s admonishments to follow the law and instructions 

given by the court]; see generally People v. Johnsen (2021) 10 

Cal.5th 1116, 1167.) Nor did the trial court’s statement amount 

to a federal constitutional violation that deprived Elias of his 

right to a fair trial. (See generally People v. Partida, supra, 37 

Cal.4th at p. 439.)

VI. Instruction on testimony of single witness

Elias contends that the trial court erred by instructing the 

jury with CALCRIM No. 301, which provided that the “testimony 

of only one witness can prove any fact. Before you conclude that 

the testimony of one witness proves a fact, you should carefully 

review all the evidence.” In support, Elias cites State v. Dever 

(2022) 2022 UT App. 35, 508 P.3d 158, *161, *170, which held 
28

that giving a similar instruction in a child sexual abuse case was 

prejudicial error because the instruction suggested that the 

complaining witness’s testimony carried more weight than other 

testimony and evidence. But we are not bound by out-of-state 

authority. (People v. Troyer, supra, 51 Cal.4th at p. 599.) 

Instead, we are bound by decisions of our California 

Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 

57 Cal.2d 450, 454.) Our Supreme Court has held that where 

corroboration is not required, a trial court may instruct the jury 

with CALCRIM No. 301, and that giving it does not violate a 

defendant’s constitutional rights. (People v. Rincon-Pineda

(1975) 14 Cal.3d 864, 884–885; People v. Tran (2022) 13 Cal.5th 

1169, 1201; People v. Turner (1990) 50 Cal.3d 668, 696.)

VII. Cumulative error and prejudice

Elias asserts that the cumulative effect of the purported 

errors requires reversal, even if they were individually harmless. 

Because we have found no prejudicial error, “there is no 

cumulative prejudice to address.” (People v. Landry, supra, 2 

Cal.5th at p. 101.)

VIII. Motion to dismiss the firearm enhancement

At sentencing, the trial court refused Elias’s request to 

strike the 25-year firearm enhancement (§ 12022.53, subd. (d))

after finding that he posed a threat to public safety. Elias now 

raises two issues as to the imposition of that enhancement. First, 

under recent amendments to section 1385, the trial court was 

obligated to strike the enhancement. Second, even if the trial 

court retained discretion to impose the enhancement, it abused 

its discretion in doing so. We disagree with both contentions.
29

A. Statutory interpretation

Before 2018, trial courts had to impose a section 12022.53 

enhancement. (People v. Tirado (2022) 12 Cal.5th 688, 695.) The 

Legislature then enacted Senate Bill No. 620 to give trial courts 

discretion to strike the enhancement in the interest of justice. 

(Tirado, at pp. 695–696; § 12022.53, subd. (h).) Thereafter, the 

Legislature in 2021 enacted Senate Bill No. 81 (2021–2022 Reg. 

Sess.) (Stats. 2021, ch. 721, § 1), which amended section 1385 “to 

specify factors that the trial court must consider when deciding 

whether to strike enhancements from a defendant’s sentence in 

the interest of justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 

674; People v. Walker (2022) 86 Cal.App.5th 386, 395, review 

granted Mar. 22, 2023, S278309 [Sen. Bill No. 81 fine tunes how 

a court exercises sentencing discretion] (Walker).) The amended 

statute applies to sentences imposed on or after January 1, 2022, 

and accordingly applies to Elias’s sentence. 

As amended, section 1385, subdivision (c), now provides in 

relevant part:

“(1) Notwithstanding any other law, the court shall dismiss 

an enhancement if it is in the furtherance of justice to do so, 

except if dismissal of that enhancement is prohibited by any 

initiative statute.

“(2) In exercising its discretion under this subdivision, the 

court shall consider and afford great weight to evidence offered by 

the defendant to prove that any of the mitigating circumstances 

in subparagraphs (A) to (I) are present. Proof of the presence of 

one or more of these circumstances weighs greatly in favor of 

dismissing the enhancement, unless the court finds that 

dismissal of the enhancement would endanger public safety. 

‘Endanger public safety’ means there is a likelihood that the 
30

dismissal of the enhancement would result in physical injury or 

other serious danger to others. [¶]

“(A) Application of the enhancement would result in a

discriminatory racial impact as described in paragraph (4) of

subdivision (a) of Section 745.

“(B) Multiple enhancements are alleged in a single case. In 

this instance, all enhancements beyond a single enhancement

shall be dismissed.

“(C) The application of an enhancement could result in a 

sentence of over 20 years. In this instance, the enhancement shall 

be dismissed.

“(D) The current offense is connected to mental illness.

“(E) The current offense is connected to prior victimization

or childhood trauma.

“(F) The current offense is not a violent felony as defined in

subdivision (c) of Section 667.5. 

“(G) The defendant was a juvenile when they committed

the current offense or any prior offenses, including criminal

convictions and juvenile adjudications, that trigger the

enhancement or enhancements applied in the current case.

“(H) The enhancement is based on a prior conviction that is

over five years old.

“(I) Though a firearm was used in the current offense, it 

was inoperable or unloaded.” (§ 1385, subd. (c)(1)–(2), italics 

added.)

Elias interprets the emphasized sentence in section 1385, 

subdivision (c)(2)(C), as requiring trial courts to strike any 

enhancement resulting in a sentence greater than 20 years,

without regard to public safety. Accordingly, because imposing 

the firearm enhancement here would increase his sentence from 
31

15 years to life to 40 years to life, the trial court should have 

stricken the enhancement. The People counter that reading the 

statute as a whole shows that trial courts shall strike an 

enhancement if one of the mitigating circumstances specified in 

subparagraphs (A) to (I) are present unless the trial court finds 

that doing so would endanger public safety. Accordingly, the trial 

court acted within its discretion to impose the enhancement 

because the trial court found that Elias posed a danger to public 

safety.

In a case such as this involving statutory interpretation, 

our fundamental task is to determine the Legislature’s intent so 

as to effectuate the law’s purpose, beginning with an examination 

of the statute’s words and giving them a plain, commonsense 

meaning. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141; Laurel 

Owner’s Assn., Inc. v. Appellate Division of Superior Court (2018) 

28 Cal.App.5th 1146, 1151.) We consider the entire scheme’s 

language and related statutes, harmonizing terms when possible. 

(Gonzalez, at p. 1141.) If unambiguous, the plain meaning of the 

statutory language controls, and we need go no further. (Laurel, 

at p. 1151.) But if language is subject to more than one 

reasonable construction, we may consider extrinsic aids, 

including legislative history. (People v. Sinohui (2002) 28 Cal.4th 

205, 211.) Ultimately, we choose the construction comporting 

most closely with the legislators’ apparent intent, with a view to 

promoting the statute's general purpose, rather than defeating it. 

(Gonzalez, at p. 1141.) We review questions of statutory 

interpretation de novo. (Ibid.)

On its face and reading it as a whole, section 1385 does not 

mandate that trial courts dismiss enhancements if imposing 

them would lead to a sentence of over 20 years. (See, e.g., People 
32

v. Mendoza (2023) 88 Cal.App.5th 287; People v. Anderson (2023) 

88 Cal.App.5th 233, review granted Apr. 19, 2023, S278786; 

People v. Lipscomb (2022) 87 Cal.App.5th 9 (Lipscomb); see also 

Walker, supra, 86 Cal.App.5th at p. 396, rev.gr.) To be sure, a 

superficial read of “shall” in subdivision (c)(2)(C) implicates a 

mandatory obligation, not a permissive one. However, we do not 

read words or phrases in isolation but must consider how they fit 

in the context of the statute as a whole. (Walker, at p. 396.) 

Subdivision (c)(1) sets the statute’s overall context, that 

dismissing an enhancement must further justice, a notion that 

implicates discretion. (See Walker, at p. 395 [dismissing 

enhancement in furtherance of justice is discretionary call].) 

Subdivision (c)(2) then expressly refers to a trial court’s exercise 

of discretion, but directs that its exercise requires consideration 

of nine mitigating circumstances. If a mitigating circumstance 

exists, then the trial court shall afford it great weight and

dismiss the enhancement unless doing so would endanger public 

safety. (§ 1385, subd. (c)(2).) “This language, taken together, 

explicitly and unambiguously establishes: the trial court has 

discretion to dismiss sentencing enhancements; certain 

circumstances weigh greatly in favor of dismissal; and a finding 

of danger to public safety can overcome the circumstances in 

favor of dismissal.” (Anderson, at p. 239.) In short, the exception 

for public safety applies to all mitigating circumstances in 

subparagraphs (A) through (I). “The ‘shall be dismissed’

language in section 1385(c)(2)(C), like the language of all of the 

listed mitigating circumstances, applies only if the court does not

find that dismissal of the enhancement would endanger public 

safety.” (Mendoza, at p. 296.) 
33

Walker, supra, 86 Cal.App.5th 386, review granted, rejected 

interpreting the similar provision in section 1385, subdivision 

(c)(2)(B), to deprive trial courts of discretion to impose an 

enhancement. That subdivision refers to multiple enhancements 

alleged in a single case, in which “instance, all enhancements 

beyond a single enhancement shall be dismissed.” (§ 1385, subd. 

(c)(2)(B).) Walker, at page 396, held that the text and purpose of 

section 1385 and Senate Bill No. 81 and the rules of statutory 

construction showed that trial courts are not obligated to dismiss 

all but one enhancement whenever a jury finds multiple 

enhancements true. The court said, “If we were to read the 

phrase appended to the multiple enhancements mitigating factor 

as automatically mandating dismissal of all but one enhancement 

whenever multiple enhancements exist, then the existence of 

multiple enhancements would not ‘weigh greatly’ in favor of 

dismissal—it would weigh dispositively. But that is not what the 

statute says, and we are not allowed to rewrite the statute.” 

(Walker, at p. 397; accord People v. Anderson, supra, 88

Cal.App.5th at p. 240, rev.gr. [“dismissal shall occur but only if, 

in exercising its discretion and giving great weight to certain 

factors, the court finds dismissal is in the interests of justice or 

would not endanger public safety”].)

Moreover, construing the statute as Elias suggests would 

lead to absurd results. In all cases in which a 20-year or 25-yearto-life enhancement under section 12022.53, subdivisions (c) and 

(d), respectively, has been found true, courts would have to 

dismiss the enhancement because imposing it would result in a 

sentence of over 20 years in all cases. (People v. Mendoza, supra, 

88 Cal.App.5th at p. 296; Lipscomb, supra, 87 Cal.App.5th at 

pp. 20–21.) Were this the Legislature’s intent, then it would 
34

have, for example, repealed or somehow addressed subdivisions

(c) and (d) of section 12022.53, but it did not do so. Thus, our 

construction is the one that does not render section 12022.53 

subdivisions (c) and (d), surplusage or meaningless in the 

statutory framework.

Also, as Walker, supra, 86 Cal.App.5th at page 398, review 

granted, pointed out, if our Legislature wanted to remove 

sentencing discretion in certain instances, then there were direct 

ways to achieve that purpose. Using the example of multiple 

enhancements (§ 1385, subd. (c)(2)(B)), the Legislature could 

have had a “standalone section that says: ‘If there’s more than 

one enhancement, automatically dismiss all but one’ ” instead of 

“opt[ing] to embed that mandate as an addendum to one of nine 

mitigating factors to be given great weight in the context of a 

trial court’s discretionary decision whether to dismiss. In other 

words, if our Legislature was trying to implement a rule of 

mandatory and automatic dismissal, it picked a very circuitous 

way to do so.” (Walker, at p. 398.) 

Legislative history supports our interpretation. A Senate 

Floor Analysis dated September 8, 2021, noted that, according to 

the bill’s author, there was a lack of clarity and guidance as to 

how judges were to exercise their discretion regarding 

enhancements. (Sen. Rules Com., Off. Of Sen. Floor Analyses, 

Unfinished Business Analysis of Sen Bill No. 81 (2021–2022 Reg. 

Sess.) as amended Aug. 30, 2021, p. 5.) Senate Bill No. 81 

therefore aimed “to provide clear guidance on how and when 

judges may dismiss sentencing enhancements and other 

allegations that would lengthen a defendant’s sentence. By 

clarifying the parameters a judge must follow, [Senate Bill No.] 

81 codifies a recommendation developed with the input of the 
35

judges who serve on the Committee on the Revision of the Penal 

Code for the purpose of improving fairness in sentencing while 

retaining a judge’s authority to apply an enhancement to protect 

public safety.” (Ibid.; italics added.)

Otherwise, our review of the statute’s legislative history 

shows that at no time was it stated or considered that an 

enhancement shall be dismissed in all cases where the sentence 

would exceed 20 years, without consideration of public safety. 

Lipscomb, supra, 87 Cal.App.5th at page 19, thus observed in its 

review of the legislative history that the versions of Senate Bill 

No. 81 “confirm the Legislature’s intent that the trial court retain 

the ability to Impose an enhancement where failure to do so 

would endanger public safety.” The February 8, 2021 version 

“provided that ‘the court shall dismiss an enhancement upon 

finding any of the following circumstances to be true,’ and, after 

listing the mitigating circumstances in paragraph (1), further 

provided that ‘[t]he court may decline to dismiss a charged 

sentencing enhancement pursuant to paragraph (1) upon a 

showing by clear and convincing evidence that dismissal of an 

enhancement would endanger public safety.” (Ibid.) A later 

iteration of the bill “provided that ‘[t]here shall be a presumption 

that it is in the furtherance of justice to dismiss an enhancement 

upon a finding that any of the mitigating circumstances in 

subparagraphs (A) to (I), inclusive, are true. This presumption 

shall be overcome by a showing of clear and convincing evidence 

that dismissal of the enhancement would endanger public 

safety.’ ” (Lipscomb, supra, 87 Cal.App.5th at p. 19; see also 

Assem. Com. on Public Safety, As Proposed to be Amended in 

Committee (2021–2022 Reg. Sess.) as amended Apr. 27, 2021, p. 4 

[recommending “guidelines and presumptions (but not 
36

requirements)” be established that judges should consider 

dismissing enhancement in furtherance of justice based on 

mitigating circumstances], italics in original.) “Thus every 

version of the statute—including, as we conclude, the current 

one—expressly empowered the court to impose the enhancement 

upon a finding that dismissing it would endanger public safety.” 

(Lipscomb, at p. 19.) 

And, as our task is to ascertain the Legislature’s intent as a 

whole in adopting the legislation, we generally do not consider 

statements of an individual legislator or a bill’s author in 

construing a statute in the absence of a showing the statement 

was part of the debate in the Legislature and considered by it. 

(Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062; 

People v. Garcia (2002) 28 Cal.4th 1166, 1175–1176, fn. 5.) It is 

nonetheless noteworthy that Senate Bill No. 81’s author, Senator 

Nancy Skinner, intended judges to retain discretion to impose an 

enhancement. After the bill had been approved, she wrote to 

clarify her intent regarding two provisions of the bill. She wrote 

that the August 30, 2021 amendments removed “the presumption 

that a judge must rule to dismiss a sentence enhancement if 

certain circumstances are present, and instead replaces that 

presumption with a ‘great weight’ standard where these 

circumstances are present. The retention of the word ‘shall’ in 

Penal Code § 1385(c)(3)(B) and (C) should not be read as a 

retention of the previous presumption language—the judge’s 

discretion is preserved in Penal Code § 1385(c)(2).” (Sen. 

Skinner, author of Sen. Bill No. 81 (2021–2022 Reg. Sess.), letter 

to Sect. of the Sen., Sept. 10, 2021, 121 Sen. J. (2021–2022 Reg. 

Sess.) p. 2638.) Further, she clarified that in establishing the 

great weight standard to impose or to dismiss an enhancement, 
37

she intended that the standard be consistent with California 

Supreme Court case law. “In short, the bill’s author expressly 

indicated the intent that the judge’s discretion to decide whether 

to impose the enhancement be preserved notwithstanding the 

‘shall be dismissed’ language in section 1385, subdivision 

(c)(2)(C).” (Lipscomb, supra, 87 Cal.App.5th at p. 20.)

Finally, we do not agree with Elias that People v. Sek

supports his interpretation of section 1385, subdivision (c)(2)(C). 

Sek, supra, 74 Cal.App.5th at pages 664 to 670, first addressed 

other recent enactments, finding that they were retroactive, so 

the defendant was entitled to remand for resentencing. The court 

also briefly noted that Senate Bill No. 81 had been enacted 

during the pendency of the appeal, citing subdivision (c)(2)(C),

because Sek’s sentence with a firearm enhancement exceeded 20 

years. The court therefore noted that on remand the trial court 

had to apply the new law. (Sek, at p. 674.) Sek did not say how 

the new law should be applied or otherwise analyze that law.

B. The trial court did not abuse its discretion

Elias alternatively argues that even if section 1385, 

subdivision (c)(2)(C), did not mandate dismissing the firearm 

enhancement, the trial court abused its discretion in not doing so. 

We disagree.

A trial court’s discretionary decision whether to strike an 

enhancement may not be reversed on appeal unless the appellant 

shows it is irrational or arbitrary. (People v. Carmony (2004) 33 

Cal.4th 367, 375.) Absent such a showing, we presume that the 

trial court acted to achieve legitimate sentencing objectives, and 

we will not set aside a decision merely because reasonable people 

might disagree. (Id. at p. 378.) A trial court thus does not abuse 
38

its discretion unless its decision is so irrational and arbitrary 

that no reasonable person could agree with it. (Ibid.)

Here, the trial court said it had considered the general 

objectives of sentencing, including protecting society. The trial 

court further noted that there was evidence that Elias had 

previously shot at a person (Quintanilla) and that there was no 

evidence he committed the current crime because of provocation 

or duress. Rather, “It appears this defendant shot and killed Jose 

Ahumada for really no reason,” and “the circumstances in this 

case demonstrate how dangerous this defendant is.” The trial 

court thus described this case as one of the most disturbing it had 

seen and found that dismissing the enhancement would result in 

“extreme danger to public safety and danger to others.”

On appeal, Elias faults the trial court’s finding that he was 

a danger to public safety. He describes the evidence he was the 

killer as “exceptionally weak” and insufficient to show he had an 

intent to kill. However, the jury clearly did not find the evidence 

to be exceptionally weak. Also, the trial court was entitled to rely 

on evidence that just weeks before Ahumada’s murder, Elias was

involved in another shooting to support its conclusion he posed a 

danger to the public. 

Elias also faults the trial court for stating that there was no 

reason for the murder and repeats his argument that Wendy was 

not credible and there must have been a motive for the shooting 

even though the record didn’t reveal one. Again, the trial court 

did not misstate the evidence and was not required to speculate 

as to any motive Elias might have had for murder.

Elias also makes too much of the trial court’s observation 

that there “is no crime more serious than murder” by arguing 

that it reflects the trial court’s misunderstanding of the issue. He 
39

thus points out that punishment for the second degree murder 

was not the issue. The issue was whether to dismiss the firearm 

enhancement. However, in context, the trial court first said it 

had considered the nature and seriousness of the crime, and it 

then observed that in the universe of crimes, murder is the most 

serious. Therefore, the suggestion that the trial court 

misunderstood the issue or that its statement about murder 

reflects an abuse of discretion is meritless. 

Next, Elias’s counsel asked the trial court to dismiss the 

firearm enhancement based on his age when he committed the 

offense. Although a defendant’s juvenile status is a mitigating 

circumstance (§ 1385, subd. (c)(2)(G)), Elias was 18 years old 

when he committed the murder and therefore not a juvenile. 

Although the trial court had the discretion to nonetheless 

consider his youth (see § 1385, subd. (c)(4) [listed circumstances 

are not exclusive]), the trial court here found that it was an 

insufficient mitigating circumstance when weighed against the 

danger Elias posed to the public.

Finally, Elias’s counsel referred to Elias’s substance abuse, 

addiction, and addictive disorders. However, other than vaguely 

referring to those conditions, counsel produced no evidence or 

further explanation of them, stating he would do so at a 

subsequent hearing to introduce materials relevant to a future 

parole hearing. (See generally People v. Franklin (2016) 63 

Cal.4th 261.) Thus, other than counsel’s bare statement, the trial 

court had nothing before it to establish this mitigating 

circumstance. 
40

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.