Filed 1/11/22 P. v. Pratt CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LATRELL PRATT,

Defendant and Appellant.

 B306017

 (Los Angeles County

 Super. Ct. No. MA073799)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Daviann L. Mitchell, Judge. Affirmed with 

directions.

John A. Colucci, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Matthew Rodriguez, Acting 

Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Susan Sullivan Pithey, Senior Assistant Attorney 

General, Scott A. Taryle, Supervising Deputy Attorney General, 

and Daniel C. Chang, Deputy Attorney General, for Plaintiff and 

Respondent.
2

INTRODUCTION

A jury convicted Latrell Pratt of murder and possession of a 

firearm by a felon and found true the allegation he personally 

and intentionally discharged a firearm causing the death of Israel 

Castaneda. The trial court sentenced Pratt to 25 years to life,

plus 25 years to life for the firearm enhancement.

Pratt argues the trial court erred in denying his motion 

under Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 

90 L.Ed.2d 69] and People v. Wheeler (1978) 22 Cal.3d 258

(commonly referred to as a Batson/Wheeler motion), admitting 

certain expert witness testimony, and imposing the firearm 

enhancement under Penal Code section 12022.53, subdivision (d), 

without exercising its discretion under section 12022.53, 

subdivision (h), to impose a lesser firearm enhancement.

1

 We 

agree with Pratt’s last contention, direct the trial court to 

exercise its discretion whether to impose a lesser firearm 

enhancement, and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Pratt Shoots and Kills Castaneda

One night in March 2018 Robert Ordaz went to a liquor 

store in a strip mall on 47th Street in Palmdale where he went 

every day to buy a beer and a lottery ticket. Ordaz spoke briefly 

to Castaneda, who also frequented the mall, outside the liquor 

store. Castaneda “did a little laugh” and approached someone in 

a parked car. The car left the parking lot, and Ordaz saw 

1 Undesignated statutory references are to the Penal Code.
3

Castaneda get into a “confrontation” with a Black man outside 

the mall. Ordaz had seen the man “hundreds of times,” but did 

not know him. The man wore a dark shirt and dark jeans with a 

white pattern on the back pockets and had “messed up corn 

rows.” After arguing for less than two minutes, the man in dark 

jeans left the mall, but returned five or 10 minutes later. 

Meanwhile, Ordaz got a hamburger from a fast food 

restaurant in the mall and returned to the liquor store. As he left 

the liquor store the second time, Ordaz saw the man in dark 

jeans summon Castaneda to an unlit area of the parking lot 

40 feet from Ordaz. Ordaz heard gunshots and saw “the flash of 

the gun.” Castaneda walked toward Ordaz and fell. Ordaz did 

not see the face of the shooter, who ran away. 

Donyeld Bowen also saw Castaneda talking to a man as 

Bowen went into the liquor store. Bowen described the man as 

slim and tall, mid- to late-20s, Black or Hispanic, with braids 

that looked “like they needed to be redone” down to the back of 

his neck. Bowen said the man wore blue jeans, a black shirt, a 

dark beanie or hoodie, and black or black-and-white tennis shoes. 

As Bowen left the liquor store, he saw the man shoot Castaneda 

three times and run away. Castaneda died of his injuries. 

B. The Sheriff’s Department Investigates the Shooting

Los Angeles County Sheriff’s detectives responded to the 

scene of the shooting and obtained surveillance video from 

several establishments, including the liquor store and a bakery 

next door. The bakery’s surveillance camera captured some of 

the parking lot outside the liquor store. Videos taken close in 

time to the shooting showed a man wearing dark jeans with a 

white design on the back pockets talking to Castaneda, who was 
4

wearing a light colored shirt. The man in dark jeans wore them 

so low on his hips that he stepped on the bottom hems as he 

walked. 

Sheriff’s detectives interviewed Ordaz and Bowen about the 

shooting, showed them the surveillance videos, and asked them if 

they recognized anyone in the videos. Ordaz told detectives the 

person he saw wearing dark jeans and talking to Castaneda the 

night of the shooting was the same person who appeared in the

videos. Ordaz did not recognize the man’s face, but said the 

man’s clothing was the same. Bowen said the clothes he saw on 

the person in the videos were the same clothes he described to 

Sheriff’s deputies worn by the shooter.2 

Detectives also interviewed Anjad Al Saddi, the owner of 

the liquor store, who was working in the back of the store at the 

time of the shooting.3 Detectives showed Saddi a picture of the 

person Ordaz and Bowen identified from surveillance videos as 

the shooter, and Saddi said the person used to be a “regular,” but 

Saddi did not know his name. Saddi recalled he once kicked the 

man out of the liquor store for stealing. Saddi said he saw the 

man near the bakery the night of the shooting wearing a beanie 

and talking to Castaneda. Saddi told detectives the man’s 

2 Ordaz and Bowen testified reluctantly at trial and either 

denied telling detectives they recognized the person in the 

surveillance videos as the shooter or said they could not recall 

saying that. The People introduced recordings of Ordaz’s and 

Bowen’s interviews with Sheriff’s detectives, as well as 

transcripts of those interviews. 

3 Saddi testified at trial, and the People played the recording 

of Saddi’s interview with Sheriff’s detectives for the jury. 
5

mother was also a regular customer, and she drove a silver car 

manufactured by a Korean company. Saddi agreed to tellthe 

detectives the next time the man’s mother came into the store, 

and when he did, detectives obtained the license plate number for 

the silver car. In a separate interview detectives showed Saddi a 

six-pack photographic lineup that included a picture of Pratt. 

Saddi identified Pratt as the person he saw the night of the 

shooting outside the bakery. 

Detectives used the license plate number of the silver car to 

obtain an address for Pratt’s mother. Detectives executed a 

search warrant on that property, where Pratt also lived. Inside 

Pratt’s bedroom, detectives found a pair of dark blue jeans with a 

white design on the back pockets and torn hems, a pair of black 

gloves, a beanie, a black vest, and a black sweatshirt. Gunshot 

residue tests identified particles consistent with or characteristic 

of gunshot residue on the front thigh area of the jeans, the 

sweatshirt, and one of the gloves. 

Detectives arrested Pratt and seized his cell phone. Data 

extracted from the phone showed someone used it to search 

various “most wanted” lists and to view an article on a news 

website with the headline “Suspect Sought in Fatal Shooting of a 

Man in Palmdale.” The phone also had been used for a search 

query including the terms “Palmdale,” “homicide,” and “47th.” 

C. A Jury Convicts Pratt of Murder, and the Trial Court 

Sentences Him

The People charged Pratt with murder (§ 187, subd. (a)) 

and possession of a firearm by a felon (§ 29800, subd. (a)(1)). The 

People alleged Pratt personally used a firearm, within the 

meaning of section 12022.53, subdivision (b); personally and 
6

intentionally discharged a firearm, within the meaning of section 

12022.53, subdivision (c); and personally and intentionally 

discharged a firearm causing great bodily injury or death, within 

the meaning of section 12022.53, subdivision (d). The People also 

alleged Pratt had served two prior terms within the meaning of 

section 667.5, subdivision (b). 

On the People’s motion, the court at trial struck the firearm 

allegations under section 12022.53, subdivisions (b) and (c). The 

jury convicted Pratt on both counts and found true the allegation 

he personally and intentionally discharged a firearm causing 

great bodily injury or death, within the meaning of section 

12022.53, subdivision (d). On the murder conviction, the trial 

court sentenced Pratt to a prison term of 25 years to life, plus 25 

years to life for the enhancement under section 12022.53, 

subdivision (d). On the conviction for possession of a firearm by a 

felon, the court imposed and under section 654 stayed execution 

of a three-year prison term. The court struck the enhancement 

under section 667.5, subdivision (b), because it no longer applied.4 

Pratt timely appealed. 

4 The trial court sentenced Pratt in April 2020. Senate Bill 

No. 136, effective January 1, 2020, amended section 667.5, 

subdivision (b), by limiting the applicability of the one-year prior 

prison term enhancement to defendants who served a prior 

prison sentence for a sexually violent offense, as defined in 

Welfare and Institutions Code section 6600, subdivision (b). 

(Stats. 2019, ch. 590, § 1; see People v. Griffin (2020) 

57 Cal.App.5th 1088, 1092, review granted Feb. 17, 2021, 

S266521; People v. Shaw (2020) 56 Cal.App.5th 582, 588.)
7

DISCUSSION

A. The Trial Court Did Not Err in Denying Pratt’s

Batson/Wheeler Motion

1. Relevant Proceedings

The trial court gave 49 prospective jurors, including six

Black prospective jurors, a questionnaire. The questionnaire 

sought primarily personal information, such as the prospective 

juror’s job, marital and family status, and previous jury 

experience. The court questioned each prospective juror about

his or her responses to the questionnaire before allowing the

attorneys 20 minutes to question the jurors. 

Prospective Juror No. 8380 was a single Black woman who 

worked as a phone operator for a large retail company.

5 She told 

the court she had one adult son, who was getting a medical 

degree in psychiatry, and three adult daughters, who worked for 

a delivery service, for Medicare, and as a preschool teacher, 

respectively. Prospective Juror No. 8380 had lived in the area for 

19 years. None of Prospective Juror No. 8380’s responses to the 

court’s questions prompted any concerns from the court. The 

court ended its questioning of Prospective Juror No. 8380 by 

stating, “Excellent. Very glad to have you.” 

5 During voir dire Prospective Juror No. 8380 was also 

referred to as Prospective Juror No. 14 and Prospective Juror 

No. 9, after she moved into the first Prospective Juror No. 9’s 

seat. To avoid confusion, we will refer to her as Prospective Juror 

No. 8380. 
8

After questioning the prospective jurors individually,the 

trial court questioned them as a group. The court asked the 

prospective jurors to raise their hand if they had an affirmative

response to any of the questions. The questions sought to elicit 

biases and to identify prospective jurors who would not be able to 

follow the court’s instructions on the law or keep an open mind 

until the end of the trial. Prospective Juror No. 8380 did not 

raise her hand in response to any of the questions the court posed 

to the group.

Counsel for Pratt asked the group of prospective jurors 

questions about their ability to keep an open mind throughout 

the trial. None of the prospective jurors raised his or her hand to 

indicate he or she could not be “a fair, open-minded juror.” The 

prosecutor asked the group questions about circumstantial 

evidence. She selected several individual jurors to ask questions 

or pose hypotheticals. The prosecutor asked Prospective Juror 

No. 8380 whether she could “vote guilty” on a charge for driving 

under the influence if the People proved only that the defendant 

had a blood alcohol content of .08 percent or above, but not the 

defendant’s specific blood alcohol content, what the defendant 

had drunk, or where the defendant was going when stopped. 

Prospective Juror No. 8380 replied yes. 

The prosecutor used her first two peremptory challenges to 

ask the court to excuse a Hispanic man and a White man. The 

prosecutor used her third peremptory challenge to ask the court 

to excuse Prospective Juror No. 8380. Counsel for Pratt 

immediately made a Batson/Wheeler motion, arguing the People 

had exercised a peremptory challenge against one of only two 

Black prospective jurors in the first panel of 12. The trial court 

observed there were four other Black prospective jurors in the 
9

jury pool, which at that time comprised 44 people. The court 

found Pratt failed to make a prima facie showing the People used 

their peremptory challenge “for improper purposes in light of 

their peremptories thus far.” The court then “invite[d]the 

prosecution to state the grounds and neutral reasons for excusing 

[Prospective Juror No. 8380] if they would like to do that to 

preserve [the record for appeal].” 

The prosecutor stated she excused Prospective Juror 

No. 8380 because she had “observed her walk into court since 

early yesterday, and [she] often [saw] her looking toward the 

defendant with very sympathetic looks.” The prosecutor 

continued: “I don’t know—she hasn’t said anything. She [was] 

not very vocal during voir dire; however, given the—I wouldn’t 

say constant but frequent kind of gazes towards the defendant, 

kind of what I would describe in a sympathetic way, and we chose 

to use our peremptory challenge.” 

The court acknowledged that Prospective Juror No. 8380 

was “an older African American woman” and that the defendant 

was “a younger man, probably the age of her grandchildren, if she 

has grandchildren.” The court denied the motion, stating: “As I 

indicated, the defense has failed to make a prima facie case 

because they failed to raise a reasonable inference of exclusion 

based on membership of the cognizable group. [The] defense has 

stated only the excused jurors are a member of the cognizable 

group . . . .” 

Counsel for Pratt argued Prospective Juror No. 8380 “said 

nothing during voir dire to justify her exclusion, and the 

prosecutor did not inquire of her during voir dire. They felt she 

was not vocal . . . .” The trial court stated, “The court did note 

that there [are] approximately six African Americans in the panel 
10

that we’re working with when we started the peremptory process. 

There [are] still five remaining . . . . The People have excused 

[one Hispanic, one White, and one Black prospective juror.] . . .

I didn’t personally observe the looks toward the defendant, but 

she is an elderly woman. The defendant is [a] young man,

probably the age of her grandchildren if she had them, and I don’t 

find that there was a basis or prima facie showing being made, 

and the People have . . . made a record should the appellate court 

disagree with me . . . . The court does believe that the defense 

has not met its burden of establishing that the motion should be 

granted, and the reasons offered by the prosecution I find to be 

credible under the circumstances in this case.” 

After excusing Prospective Juror No. 8380 the People 

excused one more prospective juror, whose race and ethnicity are 

unknown. The jury that eventually convicted Pratt included at 

least one Black juror. 

2. Applicable Law and Standard of Review

A “‘prosecutor, like any party, may exercise a peremptory 

challenge against anyone, including members of cognizable 

groups. All that is prohibited is challenging a person because the 

person is a member of that group.’” (People v. Hardy (2018) 

5 Cal.5th 56, 78; see People v. Smith (2018) 4 Cal.5th 1134, 1146 

[“‘a party may exercise a peremptory challenge for any 

permissible reason or no reason at all’”].) “Both the United 

States and California Constitutions prohibit the exercise of 

peremptory strikes on the basis of race or ethnicity.” (People v. 

Battle (2021) 11 Cal.5th 749, 772 (Battle); see People v. Reed

(2018) 4 Cal.5th 989, 999.) Courts follow a three-step process in 

ruling on a Batson/Wheeler motion. (Battle, at p. 772; Reed, at 
11

p. 999.) “When a party opposing a peremptory strike makes a 

prima facie case that the strike was motivated by impermissible 

discrimination (step 1), the proponent of the strike must offer a 

nondiscriminatory reason for that challenge (step 2). [Citation.] 

The question then becomes (step 3) whether the opponent of the 

peremptory challenge has shown it “‘more likely than not that the 

challenge was improperly motivated.’”” (People v. Baker (2021) 

10 Cal.5th 1044, 1071; see Battle, at p. 772; People v. Miles (2020) 

9 Cal.5th 513, 538.)6

“[W]here (1) the trial court has determined that no prima 

facie case of discrimination exists, (2) the trial court allows or 

invites the prosecutor to state his or her reasons for excusing the 

juror for the record, (3) the prosecutor provides 

nondiscriminatory reasons, and (4) the trial court determines 

that the prosecutor’s nondiscriminatory reasons are genuine, an 

appellate court should begin its analysis of the trial court’s denial 

6 The Legislature recently enacted legislation that 

significantly modifies the Batson/Wheeler framework. (See Code 

Civ. Proc., § 231.7, subd. (e).) Among other things, the new law

essentially eliminates the requirement of making a prima facie 

case (id., subd. (c)) and identifies certain reasons for peremptory 

challenges, including that the prospective juror “exhibited either 

a lack of rapport or problematic attitude, body language, or 

demeanor,” as “historically . . . associated with improper 

discrimination in jury selection” (id., subd. (g)(1)(B)). The new 

legislation does not apply to this appeal, however, because it 

applies to trials “in which jury selection begins on or after

January 1, 2022.” (Id., subd. (i); see generally Battle, supra, 

11 Cal.5th at p. 776, fn. 9 [because Code of Civil Procedure 

section 231.7 “has not yet taken effect,” it “offers us no occasion to 

revisit . . . our Batson/Wheeler jurisprudence”].)
12

of the Batson/Wheeler motion with a review of the first-stage 

ruling. [Citations.] If the appellate court agrees with the trial 

court’s first-stage ruling, the claim is resolved. If the appellate 

court disagrees, it can proceed directly to review of the thirdstage ruling, aided by a full record of reasons and the trial court’s 

evaluation of their plausibility.” (People v. Scott (2015) 

61 Cal.4th 363, 391; see People v. Krebs (2019) 8 Cal.5th 265, 

289-290 [“if the trial court makes a first-stage ruling before the 

prosecutor states his or her reasons for excusing the prospective 

jurors, an appellate court reviews that first-stage ruling”].) 

Whether a defendant has established a prima facie case by 

demonstrating the totality of the relevant facts gives rise to an 

inference of discriminatory purpose “depends on consideration of 

the entire record of voir dire as of the time the motion was made.” 

(People v. Scott, supra, 61 Cal.4th at p. 384; accord, People v. 

Silas (2021) 68 Cal.App.5th 1057, 1096; see Battle, supra,

11 Cal.5th at p. 773 [“We examine the entire record before the 

trial court to determine whether it supports an inference of such 

group bias.”].) “[C]ertain types of evidence may prove 

particularly relevant. [Citation.] Among these are that a party 

has struck most or all of the members of the identified group from 

the venire, that a party has used a disproportionate number of

strikes against the group, that the party has failed to engage 

these jurors in more than desultory voir dire, that the defendant 

is a member of the identified group, and that the victim is a 

member of the group to which the majority of the remaining 

jurors belong.” (Scott, at p. 384; accord, Battle, at p. 773; Silas, at 

p. 1096.) “[T]he fact that the prosecutor volunteered one or more 

nondiscriminatory reasons for excusing the juror is of no 
13

relevance at the first stage.” (Scott, at p. 390; see Silas, at 

p. 1096.)

We review a first-stage ruling under Batson/Wheeler for 

substantial evidence. (Battle, supra, 11 Cal.5th at p. 772; People 

v. Silas, supra, 68 Cal.App.5th at p. 1095.) “In conducting our 

review, we remain mindful of the ‘low threshold’ showing 

required for Batson’s first step. [Citation.] This step should not 

‘be so onerous that a defendant would have to persuade the 

judge—on the basis of all the facts, some of which are impossible 

for the defendant to know with certainty—that the challenge was 

more likely than not the product of purposeful discrimination.’

[Citation.] It is satisfied simply by evidence sufficient to permit 

us to draw an inference that discrimination may have occurred.” 

(Battle, at p. 773.) “In establishing a prima facie showing, a 

defendant has the burden of demonstrating that the facts and 

circumstances of the case raise an inference that the prosecutor 

excluded prospective jurors based on race.” (People v. Streeter

(2012) 54 Cal.4th 205, 223; see People v. Rhoades (2019) 8 Cal.5th 

393, 430, fn. 15 [“it was defendant’s burden to make the record 

necessary to support his motion”]; People v. Jones (2013) 

57 Cal.4th 899, 916 [moving party has the burden to “‘“make as 

complete a record as feasible”’” to support a prima facie 

showing].)

3. Substantial Evidence Supported the Trial 

Court’s Ruling Pratt Failed To Make a Prima 

Facie Case

Pratt argues he made a prima facie showing of 

discriminatory motive because the prosecutor challenged one of 
14

only two Black jurors in the initial panel of 12 prospective jurors.

7

Substantial evidence supported the trial court’s ruling. 

In Battle, supra, 11 Cal.5th 749 a Black defendant 

challenged the removal of a Black prospective juror after the 

prosecutor exercised peremptory challenges against two of three 

Black prospective jurors who “entered the [jury] box.” (Id. at 

pp. 769-770.) The prosecutor “used two of his 11 peremptory 

challenges (18 percent) on Black prospective jurors, even though 

they comprised only 8.13 percent of the prospective jurors 

overall.” (Id. at p. 770.) The jury that eventually convicted the 

defendant of murder was all White with one Black alternate

juror, and the victims were White. (Id. at p. 771.) The Supreme 

Court acknowledged “the salient racial issues at play [were]

significant,” but held that, “standing alone, these factors are not 

7 Pratt argues his prima facie case is bolstered by the fact 

that two of the three jurors excused by the People were “minority 

jurors.” Because this was not a basis for Pratt’s Batson/Wheeler 

motion in the trial court, Pratt forfeited that argument on appeal. 

(See Battle, supra, 11 Cal.5th at p. 776; People v. Booker (2011) 

51 Cal.4th 141, 167.) In any event, the record shows Prospective 

Juror No. 9—the Hispanic prospective juror the People 

challenged—told the court his grandfather was arrested and 

treated unfairly by law enforcement because he was “brownskinned.” It was not unreasonable for the prosecutor, under the 

law at the time,to exercise a peremptory challenge against a 

prospective juror who expressed such a potential bias against law 

enforcement officers. (See People v. Rhoades, supra, 8 Cal.5th at 

p. 431 [“when the record of a prospective juror’s voir dire or 

questionnaire on its face reveals a race-neutral characteristic 

that any reasonable prosecutor trying the case would logically 

avoid in a juror, the inference that the prosecutor was motivated 

by racial discrimination loses force”].)
15

dispositive” of whether the defendant made a prima facie case of 

discriminatory motive. (Id. at pp. 774-775.) The Supreme Court 

discounted the prosecutor’s disproportionate strike rate against 

Black prospective jurors because the “small sample size 

introduce[d] uncertainty into the analysis and severely limit[ed]

the value of the data.” (Id. at p. 775; see id. at p. 785 [“The small 

sample size of strikes against Black prospective jurors, and the 

fact that [the defendant] challenges the excusal of only one such 

juror, severely undercuts any inference we can draw from the 

statistical evidence he presents.”].) The Supreme Court cited its 

prior statements that, “‘[a]lthough circumstances may be 

imagined in which a prima facie case could be shown on the basis 

of a single excusal, in the ordinary case . . . to make a prima facie 

case after the excusal of only one or two members of a group is 

very difficult.’” (Id. at p. 776; accord, People v. Bell (2007) 

40 Cal.4th 582, 598, fn. 3, disapproved on other grounds in People 

v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; see People v. 

Woodruff (2018) 5 Cal.5th 697, 750 [“‘[w]hile the prosecutor did 

excuse two out of three [Black prospective jurors], the small 

absolute size of this sample makes drawing an inference of

discrimination from this fact alone impossible’”]; People v. Parker

(2017) 2 Cal.5th 1184, 1212 [“‘“‘As a practical matter, . . . the 

challenge of one or two jurors can rarely suggest a pattern of 

impermissible exclusion.’”’”]; People v. Harris (2013) 57 Cal.4th 

804, 835 [“the small number of African-Americans in the jury 

pool makes ‘drawing an inference of discrimination from [the 

exclusion of two of three prospective African-American jurors]

impossible’”].) 

Other evidence in Battle weakened the defendant’s prima 

facie showing, including that the prosecutor accepted a jury that
16

included a Black prospective juror (until counsel for the 

defendant exercised a peremptory challenge against him) and a 

Black alternate juror. (See Battle, supra, 11 Cal.5th at p. 777.) 

“‘[U]ltimate inclusion on the jury of members of the group 

allegedly targeted by discrimination indicates “‘good faith’” in the 

use of peremptory challenges, and may show under all the 

circumstances that no Wheeler/Batson violation occurred.’” 

(Battle, at p. 777; accord, People v. Garcia (2011) 52 Cal.4th 706, 

747-748; see People v. Reed, supra, 4 Cal.5th at p. 1000 [“While 

acceptance of one or more black jurors by the prosecution does 

not necessarily settle all questions about how the prosecution 

used its peremptory challenges, these facts nonetheless help 

lessen the strength of any inference of discrimination that the 

pattern of the prosecutor’s strikes might otherwise imply.”].)

As in this case, the prospective juror at issue in Battle “had 

much to commend her.” (Battle, supra, 11 Cal.5th at p. 779.) But 

the Supreme Court held that, “[s]o long as prosecutors are not 

motivated by discriminatory intent, they can strike prospective 

jurors for any reason—including for reasons that don’t 

necessarily justify a challenge for cause.” (Ibid.; accord, People v.

Rhoades, supra, 8 Cal.5th at p. 435.) Although the prospective 

juror at issue in Battle expressed ambivalence about imposing the 

death penalty, the court made clear this was not the only 

relevant fact undermining an inference of discriminatory purpose 

in that case.8 Indeed, even if a prospective juror makes 

8 In general, “a reviewing court may not rely on a 

prosecutor’s statement of reasons to support a trial court’s finding 

that the defendant failed to make out a prima facie case of 

discrimination.” (People v. Scott, supra, 61 Cal.4th at p. 390; 

see People v. Silas, supra, 68 Cal.App.5th at p. 1096.) But “a 
17

“proprosecution” statements, “the prosecutor is not required to 

take [a] juror’s answers ‘“‘at face value,’”’ when ‘“other statements 

or attitudes of the juror suggest that the juror has ‘reservations 

or scruples’ about imposing [a penalty] . . . .”’” (Battle, at p. 779; 

see ibid. [prosecutors “don’t have to accept a prospective juror 

simply because the juror may be proprosecution in some 

respects”].) Finally, the Supreme Court in Battle observed that 

the prosecutor in that case did not question the Black prospective 

jurors differently from other prospective jurors. (Id. at p. 783; 

see Rhoades, at p. 430 [record did not “reveal any apparent 

disparities in the nature or extent of the prosecutors’ questioning

of the African-American prospective jurors versus prospective 

jurors of other racial and ethnic backgrounds”].)

The prima facie showing of discriminatory intent was 

weaker in this case than it was in Battle. Both cases involved

Black defendants who made a Batson/Wheeler motion after the 

prosecution exercised a peremptory challenge against a Black 

prospective juror. The prosecutor in Pratt’s trial challenged one 

court reviewing a first-stage ruling that no inference of 

discrimination exists ‘may consider apparent reasons for the 

challenges discernible on the record’ as part of its ‘consideration 

of “all relevant circumstances.”’” (Scott, at p. 390; see Battle, 

supra, 11 Cal.5th at p. 773 [“We may also consider 

nondiscriminatory reasons for the challenged strikes that are 

‘apparent from and “clearly established” in the record.’”].) In 

Battle the record was unclear about whether the prosecution

offered a reason to challenge the prospective juror at issue when 

asked by the trial court to make a record for appeal, but the 

record revealed the prospective juror had made statements 

suggesting some unwillingness to impose the death penalty. 

(Battle, at pp. 771, 779.) 
18

of two prospective Black jurors (50 percent, compared to 

66.67 percent in Battle), and the rate of peremptory challenges by 

the prosecutor in this case against Black prospective jurors was 

less disproportionate to the jury pool than in Battle.

9

 Pratt did 

not allege the victim was the same race or ethnicity as the 

majority of the seated jurors (nor did he develop a record to make 

such a showing), the prosecutor accepted a jury that included a 

Black juror, and the prosecutor did not question Prospective 

Juror No. 8380 any more or less than other jurors.

Pratt argues there was nothing in Prospective Juror 

No. 8380’s “profile” that “would indicate that she would identify 

with” Pratt and that the prosecutor’s stated reason for striking 

Prospective Juror No. 8380—that she cast sympathetic looks at 

Pratt—is “unsupported by the record” and thus evidence of 

pretext. But at the first stage of the Batson/Wheeler analysis we 

do not consider the prosecutor’s stated reasons, if any, for 

exercising a peremptory challenge. (People v. Scott, supra, 

61 Cal.4th at p. 390; People v. Silas, supra, 68 Cal.App.5th at 

p. 1096.) Only in the “‘rare’ circumstance” in which a prosecutor 

volunteers a justification that is “discriminatory on its face,” is a 

prosecutor’s stated reason for using a peremptory challenge 

relevant to the first-stage review. (See Scott, at p. 391.) The 

9 In this case 25 percent of the prosecutor’s peremptory 

challenges were against Black prospective jurors, who comprised 

14 percent of the jury pool, a ratio of 1.78 to 1. In Battle, 

18 percent of the prosecutor’s peremptory challenges were 

against Black prospective jurors, who comprised 8.13 percent of 

the jury pool, a ratio of 2.21 to 1. (See Battle, supra, 11 Cal.5th at 

pp. 770, 775; see also id. at p. 775 [“we can glean only limited 

insight from the discrepancies”].)
19

prosecutor’s stated reason for excusing Prospective Juror 

No. 8380 was not facially discriminatory. 

Pratt therefore is left with the argument the prosecutor 

struck 50 percent of Black prospective jurors in the jury box at 

the time. Under the totality of the circumstances, that is not 

enough to show the trial court erred in denying Pratt’s 

Batson/Wheeler motion. (See Battle, supra, 11 Cal.5th at p. 770;

People v. Reed, supra, 4 Cal.5th at p. 1000 [prosecutor’s 

peremptory challenges did not support an inference of 

discriminatory intent in the context of the entire jury selection 

process, where the prosecutor used approximately 63 percent of 

his first eight peremptory strikes on Black jurors, even though 

such jurors constituted only 34 percent of the venire]; People v. 

Streeter, supra, 54 Cal.4th at p. 223 [defendant’s numerical 

analysis did not establish a prima facie case where the prosecutor 

exercised 60 percent of peremptory challenges against Black 

prospective jurors while only 28 percent of prospective jurors 

called to the jury box were Black].)

B. The Trial Court Did Not Commit Prejudicial Error in 

Admitting Testimony from a Forensic and Graphic 

Arts Expert

The trial court admitted expert testimony from a forensic 

artist for the Sheriff’s Department, Sandra Enslow, who gave an 

opinion on the similarities between a photograph of Pratt and the 

person appearing in the surveillance videos wearing dark 

clothing. She also gave an opinion on the similarities between a 

photograph of the jeans found in Pratt’s bedroom and the jeans 

worn by the person in the surveillance videos. Pratt argues the 

trial court erred in admitting this testimony because the People 
20

did not establish Enslow’s expertise,the testimony was not 

beyond the everyday experience of jurors, and Enslow’s opinion 

was “tantamount to an opinion on guilt.”

10

 Any error in 

admitting Enslow’s testimony, however, was harmless.

1. Relevant Proceedings

a. Pratt’s Motion To Exclude Enslow’s 

Testimony

The People proposed to have Enslow compare a photograph 

of Pratt taken in custody with “a grainy enlarged portion of the 

[surveillance] video” and have her compare “a very grainy image 

of the pants worn by the shooter and a high-resolution image of 

the pants taken by the police” from Pratt’s bedroom. Before trial 

Pratt moved to exclude Enslow’s testimony on the grounds that 

the jurors could make these comparisons without the assistance 

of an expert and that Enslow lacked relevant expertise. The 

People argued Enslow would only “discuss the similarities but 

not . . . make any ultimate conclusions as to the individual or the 

clothing being the same individual or clothing seen [in the 

videos].” The trial court tentatively granted Pratt’s motion, but 

invited the People to provide authority for allowing Enslow to 

10 Pratt also argues the testimony violated the “secondary 

evidence rule” under Evidence Code section 1523 and “was an 

unwarranted extension of the expert testimony rules.” Pratt 

forfeited these arguments by not making them in the trial court. 

(See People v. Landry (2016) 2 Cal.5th 52, 86 [“‘“as a general rule, 

‘the failure to object to errors committed at trial relieves the 

reviewing court of the obligation to consider those errors on 

appeal’”’”].)
21

testify about making these comparisons without stating the 

“ultimate conclusion” Pratt was “the person that committed the 

crime.” The record does not show the People submitted any such 

authority.

During trial Pratt renewed his objection to Enslow’s 

testimony. The prosecutor explained that, with regard to the 

photograph of Pratt, Enslow would compare the “facial features” 

of the person in the photograph with those of the person in the 

surveillance video and would testify they were “similar.” The 

prosecutor also stated that, regarding the jeans in the 

photograph and the jeans in the video, Enslow would testify that, 

“in her educated opinion,” they “are one and the same, and 

provide the basis for that opinion.” Counsel for Pratt argued “all 

of this is not the subject for an expert opinion because [Enslow]

hasn’t done facial measurements. She hasn’t enhanced the video. 

She hasn’t done anything that one would associate with expert 

testimony. All she’s doing is looking at one photograph and 

comparing it to another photograph and saying they look similar. 

That’s something [for] the jury—they don’t need any help doing 

that. That’s not something an expert has a particular expertise 

in or something that would aid the jury.” Counsel for Pratt also 

argued Enslow’s “purported field of expertise is forensic graphic 

artist,” which he contended was “not a field that is accepted as 

legitimate and in the field of forensic science or science in 

general.” 

The trial court agreed to hold a hearing under Evidence 

Code section 402, outside the presence of the jury, on the 

admissibility of Enslow’s testimony. Subject to that hearing, the 

court anticipated it would allow Enslow to testify. The court said 
22

Enslow’s testimony would aid the jury by “identifying particular 

facial features and bringing [them] to [the jury’s] attention.” 

At the hearing under Evidence Code section 402, Enslow 

testified she received a Bachelor of Arts degree from California 

State University at Los Angeles and worked first as an illustrator 

and graphic designer. As a graphic designer, Enslow said, she 

worked with “logo images,” “patterning and imaging,” and 

“different kinds of designs” for products including fabric and tshirts. As a forensic artist, Enslow said, she was trained in 

illustration, rendering, and anthropology. She said she received 

six years of training with the Sheriff’s Department and went to 

the FBI Academy and Northwestern University for additional 

training in forensic art. Enslow said that in her training she 

“learned how to work from video and look at images and . . . 

clarify for a detective what those images may look like and 

possibilities thereof.” Enslow stated she was a member and 

fellow of the American Academy of Forensic Sciences and taught 

forensic art through the Academy and at the Los Angeles County 

Sheriff’s Department Homicide School and Detective College. 

She said she taught detectives how to work with forensic artists 

and “how to get the most out of a forensic artist.” Finally, Enslow 

said she lectured “nationally” and had recently given a lecture to 

wildfire investigators on how to use forensic artists as a resource, 

“especially using video.” Enslow testified that in previous court 

appearances she had “been declared an expert” in facial imaging 

and as a forensic artist. 

Enslow testified she had been a “graphic arts coordinator” 

and “lead forensic artist” for over 25 years for the Los Angeles 

County Sheriff’s Department. In those roles she managed the 

forensic imaging unit in the homicide bureau, drew composite 
23

images, and created facial reconstructions from skeletons. 

Enslow said she often “work[ed] from video” and did 

“comparisons,” such as when a detective asked her to “create a 

facial image” to give the detective a sense of what a person shown 

in a video looked like. With regard to digital imaging, Enslow 

explained she had experience using photo editing software to 

modify digital images for photographic lineups to make them 

more “fair.” 

Enslow stated that in this case a detective asked her to 

“look at pictures in a video and then compare them to the 

photographs of a person, and then . . . to look at pictures in a 

video of a man wearing jeans and then a photograph of the 

jeans.” The detective asked her, “‘Do these appear to be similar,’” 

and Enslow said they were. Enslow said that, to form her 

opinion about the jeans, she looked at “pattern and imagery and 

shape.” She said “those skills come from a lifetime, not only at 

the Sheriff’s Department, but previous in my work in the private 

sector in looking at patterns and looking at designs.” Enslow said 

she looked at the jeans and the video, identified the “best 

comparison stills” from the video, and compared them. Enslow 

said that, to form her opinion about the images of Pratt, she 

relied on her “education as to [her] knowledge about the human 

face and how the human face is built—skull, musculature—and 

the images [she saw] in the video.” She stated that, “because of 

the presence and the absence of light,” she “was able to make a 

favorable comparison.” Enslow said that the video images she 

reviewed were not enhanced in any way and that she did not 

make any facial measurements by, for example, measuring the 

distance between the subject’s eyes. The trial court allowed 

Enslow to testify. 
24

b. Enslow’s Trial Testimony

After reciting her education, training, and work experience 

for the jury, Enslow compared a photograph of the jeans found in 

Pratt’s bedroom with the jeans in an image of the person wearing 

jeans in the surveillance video from the night of the shooting. 

Enslow said she first “noticed everything about the jeans that 

[she] could,” including the brand (“Royalty”), the image on the 

pockets of the jeans, and the design around the pocket. Enslow 

called the design “very distinctive” and “very specific.” Enslow 

said she reviewed the video, which was “clearer” to watch while 

the video was running than when the video was stopped. Enslow 

concluded “the image on the person in the video, on his jeans, and 

the [photograph of the] jeans I was asked to compare look 

similar.” Enslow created two screenshots from the video, and the 

court admitted them into evidence. One of them showed a 

“paisley image” at the bottom of the jeans pocket with “two wings 

on either side of it and a flower image in the middle.” Enslow 

also observed that the person in the video wore his jeans so low 

he “appear[ed] to be walking on the backs” of the jeans and that 

the jeans in the photograph from Pratt’s bedroom were “quite 

ragged and torn.” 

Next, Enslow compared the surveillance videos to 

photographs of a “person of interest” given to her by a Sheriff’s 

Department detective. Enslow testified she watched the videos 

and observed the person’s nose, cheekbones, mouth, chin, and 

jawbone. The People introduced a one-page document that 

included booking photographs of Pratt and still images of the

individual wearing dark clothing in the surveillance videos. 

Using those images, Enslow identified the facial features she 

found “helpful” in concluding the images were “similar,” including 
25

the nose (“shorter, compact, soft, round,” with “a very low 

bridge”), the “fullness of the lips,” and the angles of the 

cheekbones and jawline. Enslow stated there were “many 

different areas on [the face in the photographs] that show in th[e]

video.” As in the case of the jeans, Enslow said the video images 

were clearer than screenshots of the video. Enslow testified that 

she was “not identifying anyone,” but that the images from the 

surveillance video “have similarity” to the images of the person in 

the booking photographs. 

During cross-examination Enslow stated that she selected 

the screenshots to use for her comparisons, but that she did not 

alter the lighting or zoom in on the video images to create the 

screenshots. She did, however, enlarge one of the screenshots for 

“presentation purposes.” She said it was somewhat difficult to 

use the screenshots for comparison purposes because the still 

shots “blur[red] up,” which is why she also reviewed the video. 

Enslow said she did not believe image enhancement software 

would give “better definition” to the images for purposes of 

comparing them. 

Counsel for Pratt asked Enslow about the brand name 

“Royalty” that appeared in the picture of the jeans found in 

Pratt’s bedroom and whether it appeared in any of the video 

images she reviewed. Enslow said, “Not that I could tell,” but she 

explained she would not expect its “thin and delicate” typeface to 

show up in the video because it was “difficult to read.” Counsel 

for Pratt also asked Enslow whether the design on the jeans in 

the video appeared to be lower than the design on the jeans found 

in Pratt’s bedroom. Enslow said the design on the jeans in the 

video only appeared to be lower because the person wore the 
26

jeans low, “hanging on the back of his thigh,” rather than “hiked 

up around his waist.” 

Regarding her facial comparison analysis, Enslow said she 

based her conclusion on similarities in the subject’s broad nose, 

mustache, full lips, and strong jaw. She admitted these features 

were “common” or “relatively common” in the African American

community, and thus it was fair to say the individual in the video 

was similar in appearance to many people in that community. 

c. Pratt’s Expert Witness’s Trial Testimony

Pratt called Thomas Guzman-Sanchez, an “audio and video 

forensic” expert, to testify about the same comparisons Enslow 

made. Guzman-Sanchez testified he followed the standards 

created by the Scientific Working Group for Digital Media, which 

has “best practices for digital media photographic comparison.” 

To make the comparisons, Guzman-Sanchez magnified still 

images from the surveillance video and superimposed arrows on 

the images to highlight certain items for the jury. He “clarified” 

an image that included the nose of the person shown in the video 

and noticed “there was a notable difference in the profile” of that 

person and the profile of Pratt as shown in the booking 

photographs. According to Guzman-Sanchez, the person in the 

surveillance video “had a notably longer or an extended nose than 

[Pratt].” Guzman-Sanchez also testified the “nose shape” of the 

person in the surveillance video was consistent across multiple 

frames of the video, which led him to believe the longer nose was 

an “actual physical feature” of the person in the video and not a 

distortion from the camera’s lens. Guzman-Sanchez pointed out

some “definite similarities” between Pratt and the “target” image 
27

in the video, but “also unique individualizing characteristics” that 

prevented an “empirical[ ] match.” 

In comparing the photograph of the jeans found in Pratt’s 

bedroom with those in the surveillance video, Guzman-Sanchez 

testified the still images of the video provided by the Sheriff’s 

Department were “not true to the actual digital image” because 

“it’s very dark.” Guzman-Sanchez said he extracted images from 

the video and put them into a software program, magnified the 

images without distorting them, used a “lumina filter” to “bring 

out certain aspects” of the images, and may have also used a 

“very slight sharpening filter.” Guzman-Sanchez described the 

image on the jeans from Pratt’s house as “a very detailed lion” 

with “brocade” around it. He said the image on the jeans from 

the video looked more like “a Japanese Kanji letter.”11 He also 

superimposed the two images and concluded they were “similar,” 

but he could not “match them empirically as the same . . . due to 

design differences.” 

2. Applicable Law and Standard of Review

“‘While lay witnesses are allowed to testify only about 

matters within their personal knowledge (Evid. Code, § 702, 

subd. (a)), expert witnesses are given greater latitude. “A person 

is qualified to testify as an expert if he has special knowledge, 

skill, experience, training, or education sufficient to qualify him 

11 Kanji are actually characters, not letters. (Kaiser 

Foundation Health Plan, Inc. v. Abbott Laboratories, Inc.

(9th Cir. 2009) 552 F.3d 1033, 1049; see Otokoyama Co. Ltd. v. 

Wine of Japan Import, Inc. (2d Cir. 1999) 175 F.3d 266, 269, fn. 2 

[“Katakana, Hiragana, and Kanji are . . . three different writing 

systems in the Japanese language”].)
28

as an expert on the subject to which his testimony relates.”

(Evid. Code, § 720, subd. (a).) An expert may express an opinion 

on “a subject that is sufficiently beyond common experience that 

the opinion of an expert would assist the trier of fact.”’” (People v. 

Duong (2020) 10 Cal.5th 36, 60; see People v. McDowell (2012) 

54 Cal.4th 395, 425-426 [“‘Expert opinion testimony is admissible 

only if it is “[r]elated to a subject that is sufficiently beyond 

common experience that the opinion of an expert would assist the 

trier of fact.”’”]; Menifee v. Superior Court (2020) 57 Cal.App.5th 

343, 360 [“‘“The requirements for expert testimony are that it 

relate to a subject sufficiently beyond common experience as to 

assist the trier of fact and be based on matter that is reasonably 

relied upon by an expert in forming an opinion on the subject to 

which his or her testimony relates.”’”].)

“‘When expert opinion is offered, much must be left to the 

trial court’s discretion.’” (People v. McDowell, supra, 54 Cal.4th 

at p. 426.) “‘“We are required to uphold the trial judge’s ruling on 

the question of an expert’s qualifications absent an abuse of

discretion. [Citation.] Such abuse of discretion will be found only 

where ‘“the evidence shows that a witness clearly lacks

qualification as an expert . . . .”’”’” (People v. Pearson (2013) 

56 Cal.4th 393, 445; accord, People v. Morales (2020) 10 Cal.5th 

76, 97; see People v. Polk (2019) 36 Cal.App.5th 340, 353 [the 

determination that a witness qualifies as an expert is “within the 

discretion of the trial court and will not be disturbed without a 

showing of a ‘manifest abuse’”].) Similarly, the “‘trial court has 

broad discretion in deciding whether to admit or exclude expert

testimony [citation], and its decision as to whether expert

testimony meets the standard for admissibility is subject to

review for abuse of discretion.’” (People v. Duong, supra,
29

10 Cal.5th at p. 60; accord, People v. Brown (2014) 59 Cal.4th 86, 

101; People v. James (2021) 70 Cal.App.5th 1031, 1051; see also 

People v. Peterson (2020) 10 Cal.5th 409, 457 [“We review the 

decision to admit the expert testimony for abuse of discretion.”].)

3. The Trial Court Did Not Abuse Its Discretion in 

Ruling Enslow Was Qualified To Testify as an 

Expert

Pratt argues the trial court erred in ruling Enslow was 

qualified to give expert testimony because “[s]he presented no 

evidence of training in the specific area of comparing persons in 

videos to photographic evidence or in comparing garment 

patterns.” Pratt does not argue Enslow lacked expertise in 

forensic art or in graphic design. 

When a party objects to an expert witness’s qualifications, 

Evidence Code section 720 requires the party offering the expert 

testimony to demonstrate the expert’s special knowledge, skill, 

experience, training, or education before the witness may testify 

as an expert. (People v. Townsel (2016) 63 Cal.4th 25, 45.) “‘“‘The 

competency of an expert is relative to the topic and fields of 

knowledge about which the person is asked to make a 

statement.’”’” (People v. DeHoyos (2013) 57 Cal.4th 79, 128; see 

People v. Tuggle (2012) 203 Cal.App.4th 1071, 1079 [“‘[T]he 

qualifications of an expert must be related to the particular 

subject upon which he is giving expert testimony.’”].) “‘Whether a 

person qualifies as an expert in a particular case . . . depends 

upon the facts of the case and the witness’s qualifications.’”

(Tuggle, at p. 1079; see People v. Bloyd (1987) 43 Cal.3d 333, 

357.) “‘When a preliminary showing is made that the proposed 

witness has sufficient knowledge to qualify as an expert under 
30

the Evidence Code, questions about the depth or scope of his or 

her knowledge or experience go to the weight, not the 

admissibility, of the witness’s testimony.’” (People v. Jackson

(2016) 1 Cal.5th 269, 327-328; accord, People v. Jones, supra,

57 Cal.4th at pp. 949-950; see People v. Brown, supra, 59 Cal.4th 

at p. 100 [“‘Once an expert witness establishes knowledge of a 

subject sufficient to permit his or her opinion to be considered by 

a jury, the question of the degree of the witness’s knowledge goes 

to the weight of the evidence and not its admissibility.’”].)

As discussed, Enslow testified that in her forensic art 

training she learned how to look at video images and explain 

them to a detective and that she taught law enforcement how to 

use forensic artists as a resource. Enslow did not say she had 

any specific education or training in comparing video images to 

photographic images, but she appears to have used her work 

experience in the Sheriff’s Department and expertise in forensic 

arts and graphic design to identify meaningful features of Pratt’s 

face and jeans in the video and photographic images. (See People 

v. Bolin (1998) 18 Cal.4th 297, 322 [criminalist properly relied on 

his educational background in biochemistry and serology, and his 

training as a criminalist for 13 years, to form his opinion about 

the position of the victim after the first and second fatal shots];

see also People v. Morales, supra, 10 Cal.5th at p. 99 [expert’s 

lack of academic credentials did not show he clearly lacked the 

necessary qualifications, where the expert had “relevant on-thejob training and experience”].) Although Enslow’s qualifications 

were not particularly impressive and the evidence of her 

credentials was thin,12 we cannot say she lacked the 

12 In contrast, the expert in People v. Tran (2020)

50 Cal.App.5th 171 had “30 years of experience as a certified 
31

qualifications to enable her to testify about the similarities 

between the images in the surveillance videos and the

photographs. 

Pratt argues Enslow’s opinions were not “verified as correct 

through any scientific testing or blind comparisons” and were not 

admissible under the standard in Daubert v. Merrell Dow 

Pharmaceuticals, Inc. (1993) 509 U.S. 579 [113 S.Ct. 2786, 

125 L.Ed.2d 469] (Daubert) for the admissibility of scientific 

evidence. But Pratt concedes the test applicable in California 

under People v. Kelly (1976) 17 Cal.3d 24 (Kelly) and Frye v. 

United States (D.C. Cir. 1923) 293 F. 1013 (Frye) for the 

admissibility of expert testimony based on new scientific 

techniques does not apply here because Enslow’s opinions were 

not “scientific.” We agree with this concession: Enslow’s opinions 

did not rely on the type of scientific evidence that requires 

additional scrutiny under Kelly/Frye. (See People v. Peterson, 

supra, 10 Cal.5th at p. 444 [“Kelly ‘“only applies to that limited 

class of expert testimony which is based, in whole or part, on a 

technique, process, or theory which is new to science and, even 

more so, the law.”’”]; People v. Lapenias (2021) 67 Cal.App.5th 

forensic video analyst,” a “degree in television broadcast 

communications with an emphasis on television engineering,” 

headed a police department’s forensic video unit, was “the 

principal instructor for the Law Enforcement and Emergency 

Services Video Association (LEVA),” “trained video analysts

throughout the world,” “served as an instructor at the FBI 

National Academy,” and was “certified in the area of forensic 

video analysis by LEVA.” (Id. at p. 179.) Night and day.
32

162, 173 [same].)

13 Moreover, the Supreme Court has stated

that, “[n]otwithstanding Daubert, Kelly/Frye remains the law of 

California.” (People v. Daveggio and Michaud (2018) 4 Cal.5th 

790, 831, fn. 7; see People v. Lucas (2014) 60 Cal.4th 153, 245, 

fn. 36 [Supreme Court has not indicated “any move away from 

the Kelly test toward the federal Daubert standard], disapproved 

on another ground in People v. Romero and Self (2015) 62 Cal.4th 

1, 53, fn. 19.) 

Pratt also argues the trial court failed to exercise its 

“gatekeeper” function under Sargon Enterprises, Inc. v. 

University of Southern California (2012) 55 Cal.4th 747 to 

exclude testimony that lacks sufficient “‘intellectual rigor.’” 

(Id. at p. 772.) Pratt argues Enslow must have based her opinion 

on something more than her “self-proclaimed expertise.” But as 

discussed, Enslow testified about her education, training, and 

experience in forensic arts, some in video and photographic 

13 “[A]dditional scrutiny [under Kelly] ‘is justified because 

“[l]ay jurors tend to give considerable weight to ‘scientific’

evidence when presented by ‘experts’ with impressive credentials. 

We have acknowledged the existence of a ‘. . . misleading aura of 

certainty which often envelops a new scientific process, obscuring 

its currently experimental nature.’”’ [Citation.] [¶] But in most 

cases no similar caution is required before a jury considers expert

opinion testimony. Unlike results ‘produced by a machine,’ to 

which jurors may ‘ascribe an inordinately high degree of 

certainty,’ jurors presented with the personal opinion of a 

witness, even an expert witness, ‘may temper their acceptance of 

his [or her] testimony with a healthy skepticism born of their 

knowledge that all human beings are fallible.’” (People v. 

Peterson, supra, 10 Cal.5th at pp. 457-458.)
33

imaging and at least a little in graphic design. Her opinions were 

based on (a little) more than “self-proclaimed expertise.” 

4. Any Error in the Trial Court’s Ruling Enslow’s 

Opinions Would Assist the Jury Was Harmless

Whether the trial court abused its discretion in allowing 

Enslow to testify that the person in the surveillance video looked 

similar to Pratt and wore jeans similar to the jeans found in 

Pratt’s bedroom is a closer call. As Pratt argues, jurors in their 

everyday lives make comparisons of objects and persons. Thus, 

Pratt argues, Enslow’s testimony did not assist the jury and was 

not beyond common juror experience. He has a point. 

In many cases where a court has allowed expert testimony 

consisting of video and photographic comparisons, the expert had 

manipulated, enhanced, or otherwise edited the video recordings 

to make them easier for the jury to view, or the expert provided 

insights into how the medium (video or photograph) portrayed a 

subject given the circumstances in which the image was recorded 

(for example, ambient lighting or reflections). (See People v. Tran

(2020) 50 Cal.App.5th 171, 189; see also United States v. 

Alexander (5th Cir. 1987) 816 F.2d 164, 168 [testimony of a 

“photographic comparison expert” that “the amount of distortion 

in the pictures taken by the bank surveillance cameras” affected 

the subject of the photographs, and photos taken by the expert 

that “duplicated the exact distance, camera angle, and focal 

length of those taken at the bank,” aided the jury in visually 

comparing the photos]; United States v. Sellers (4th Cir. 1977) 

566 F.2d 884, 886 [expert testimony “may assist the jury’s 

evaluation of photographs by explaining the effects of light, 

shadow, and reflections, and the distortion caused by the 
34

perspective of the picture, and other technical factors”]; State v. 

Ali (Minn. 2014) 855 N.W.2d 235, 251-252 [trial court did not 

abuse its discretion in admitting the testimony of a forensic 

expert who “‘performed enhancements to the images that [he] 

extracted’from videos” and testified “about how variations in 

video quality and lighting could cause variations in the images 

that the jury saw” and that “the camera angle and distance from 

the camera” indicated “that one suspect [was] taller than the 

other”]; Stevenson v. State (Tex.Ct.App. 2010) 304 S.W.3d 603, 

609-610, 621-622 [trial court did not abuse its discretion in 

admitting the testimony of a forensic video analysis expert who 

“overlaid . . . 911 calls onto the surveillance videotape”;

interpreted a poor quality, black-and-white surveillance video for 

the jury; and superimposed on the video a “‘Measurement 

Standard’” placed on the floor of the store where a robbery 

happened “to show the relative height of one of the robbers 

against the ‘Measurement Standard’”].) Such enhancements and 

expertise allow a “layperson [to] appreciate what they are looking 

at.” (Stevenson, at p. 621.)

Enslow did not manipulate or enhance the video she 

reviewed, create new images based on forensic expertise to enable 

the jury to extract certain information from the surveillance 

video, or use any knowledge of video or photographic imaging to 

interpret the surveillance video. She merely looked at and 

compared the same surveillance video, and the same photographs 

of Pratt and his jeans, the jurors also saw. Under these 

circumstances, Enslow’s testimony at least came dangerously 

close to invading the province of the jury. (See United States v. 

Dorsey (4th Cir. 1995) 45 F.3d 809, 815 [“the comparison of 

photographs is something that can sufficiently be done by the 
35

jury without help from an expert”]; United States v. Brewer

(9th Cir. 1986) 783 F.2d 841, 842 [district court did not err in 

excluding expert photographic comparison testimony where “the 

untrained jury could compare the photographs of the robber with 

those of [the defendant] without the special assistance of an 

expert”]; United States v. Trejo (9th Cir. 1974) 501 F.2d 138, 143

[district court erred in admitting expert testimony comparing 

surveillance video to photographs of the defendant where the 

expert “did not in fact touch on any matter, or offer any 

observations of the evidence that would not have been beyond the 

normal faculties of observation of a jury,” and “[t]here were no 

unusual or peculiar idiosyncrasies, or detailed analyses of facial 

formations which the jury could not undertake on its own as part 

of its fact-finding function”].) The jurors were just as capable of 

looking at and comparing the pictures as Enslow was.

The People rely on United States v. Cairns (9th Cir. 1970) 

434 F.2d 643. In that case the district court admitted expert 

testimony from a “photographic identification specialist” 

comparing surveillance video from the time of a robbery and a 

police photograph of the defendant. (Id. at p. 644.) The expert 

enlarged the head area of a photograph taken from the

surveillance video to match the size of the defendant’s head in the 

police photograph. “The witness then pointed out the similarity 

in the two photographs in the nose and mouth areas, chin line, 

hair lines, ear contours and inner folds of the ears, among other 

things. He then testified that based on all the general 

characteristics the individual in the surveillance photograph is 

the individual in the police photograph ‘or another individual 

having all of these characteristics as to nose, mouth, chin, and 

the ear characteristics . . . .’” (Ibid.) The Ninth Circuit found no 
36

error.14 (Ibid.; see United States v. Snow (6th Cir. 1977) 552 F.2d 

165, 167 [district court did not abuse its discretion in admitting 

expert testimony comparing photographs of the defendant with a 

bank’s surveillance photographs]; United States v. Green (8th Cir. 

1975) 525 F.2d 386, 391-392 [expert testimony comparing 

surveillance photographs and photographs of the defendant’s 

clothes was admissible where “a jury of twelve laymen would not 

have the experience to note the unique curl of the cuffs of the 

jacket, the electrical alligator clip, the crease in the pants cuff, 

the way the seams of the pants lined up, the worn spots on the 

pants, and the eyelets and lacing of the shoes”]; United States v. 

Brown (2d Cir. 1975) 511 F.2d 920, 924 [district court did not 

abuse its discretion in admitting expert testimony comparing

bank surveillance photos of the robber with known photographs 

of the defendant, where the expert took new photographs of the 

defendant “in a position as nearly as possible identical with [the 

robber’s] location in the bank”]; State v. Ali, supra, 855 N.W.2d at 

p. 251 [expert testimony comparing “pictures of pants” the “police 

recovered at [the defendant’s] apartment with the images of 

pants that were recorded in . . . various surveillance videos” was 

admissible where the expert “pointed out various details in the 

pants that were apparent in the surveillance videos, such as 

contrast in the fabric on one of the thighs”]; cf. United States v. 

Fadayini (D.C. Cir. 1994) 28 F.3d 1236, 1241 [district court did 

not abuse its discretion in admitting expert testimony identifying 

14 Cairns was later “reexamined” and limited to 

circumstances where an offer of proof convinces the court by a 

preponderance of the evidence “the offered testimony will bring to 

light facts beyond the common knowledge and experience of the 

jury.” (United States v. Trejo, supra, 501 F.2d at p. 143.) 
37

the defendant from ATM photographs because the testimony 

“may have served to focus the jury on particular characteristics of 

the defendants (e.g., facial features, distinguishing marks), 

thereby aiding the jurors’ independent assessments of the 

photographs,” but the court stated that “the untrained juror could 

fully assess the photographs without the assistance of the 

expert”].)

We would be more inclined to find error with the trial 

court’s admission of Enslow’s testimony that the image of Pratt in 

photographs was “similar” to the person appearing in the 

surveillance videos than with her testimony that there were 

similarities between the jeans in the photograph and the jeans 

worn by the person in the surveillance video. At least in the 

latter case, Enslow’s explanations for why the “Royalty” label was 

not visible on the jeans in the video, and why the design elements 

on the jeans worn by the person in the surveillance video 

appeared lower than they did in the photograph taken by 

Sheriff’s detectives, gave the jurors information that may (may) 

have been beyond their common experience. But nothing Enslow

said in comparing the still video images to photographs of Pratt 

was particularly helpful to the jurors. As was true with the 

expert witness in United States v. Trejo, supra, 501 F.2d 138, 

Enslow did not identify any unusual physical characteristics in 

her subjects or do any factual analysis that the jurors could not 

do on their own (and that jurors do all the time). (Id. at p. 143.) 

Enslow testified there were “many different areas” of Pratt’s face 

in his booking photographs “that show in th[e] video.” In that 

case, the jurors could have compared the booking photographs of 

Pratt to the surveillance video (and the still images taken from 

the video), just as Enslow did. 
38

But any error in admitting Enslow’s testimony was

harmless under People v. Watson (1956) 46 Cal.2d 818. (See

People v. Pearson, supra, 56 Cal.4th at p. 446 [“‘[t]he erroneous 

admission of expert testimony only warrants reversal if “it is 

reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error”’”]; 

People v. Prieto (2003) 30 Cal.4th 226, 247 [Watson harmlesserror standard applies to the erroneous admission of expert 

testimony].) The testimony of Ordaz, Bowen, and Saddi 

overwhelmingly implicated Pratt as the shooter; there were no 

other reasonable possibilities. Ordaz saw the person wearing 

dark clothing in the surveillance video talking to Castaneda 

moments before the shooting, Bowen identified the shooter as the 

person wearing dark clothes in the surveillance video, and Saddi 

identified the person wearing dark clothes in the surveillance 

video as Pratt, a “regular” in Saddi’s liquor store. Neither Ordaz 

nor Bowen said he saw Castaneda with anyone else in the 

moments before the shooting. And the jeans (including their 

ragged hems), gunshot residue, and cell phone data all

corroborated the witnesses’ collective testimony that Pratt was 

the shooter. 

Moreover, Enslow did not testify that Pratt was the same 

person or that the jeans found in his bedroom were the same 

jeans in the surveillance videos, and her opinions “‘did not bind 

the jurors . . . or preclude them from considering other relevant 

evidence.’” (People v. Brown, supra, 59 Cal.4th at p. 101.) The 

jurors heard conflicting expert opinions (cf. United States v. 

Sellers, supra, 566 F.2d at p. 886 [trial court’s error in excluding 

testimony by the defendant’s expert that the defendant was not 

the person shown in surveillance photographs, while admitting
39

the testimony of the prosecution’s expert that it was impossible to 

determine from the photographs whether the defendant was the 

perpetrator, was prejudicial]), and in their closing arguments 

both the prosecutor and counsel for Pratt urged the jurors to 

review the video and photographs and decide for themselves 

whether the photographic evidence implicated Pratt. And the 

trial court properly instructed the jurors they should determine 

“the meaning and importance of any [expert] opinion,” “consider 

the expert’s knowledge, skill, experience, training, and education, 

[and] the reasons the expert gave for an opinion,” and “the facts 

or information on which the expert relied on reaching that 

opinion.” The court also told the jurors to “disregard any opinion 

that [they] found unbelievable, unreasonable, or unsupported by 

the evidence.” Under these circumstances, any error in admitting 

Enslow’s testimony was harmless. (See Brown, at p. 101 

[erroneous admission of expert testimony was harmless where 

the “court properly instructed the jury regarding the 

consideration of expert testimony, telling jurors they were not 

bound to accept [an expert’s] opinion,” “‘should give to it the 

weight to which [they] find it to be entitled,’” and could 

“‘disregard any such opinion’”].)15 

15 Pratt argues we should evaluate whether the admission 

was harmless beyond a reasonable doubt under Chapman v. 

California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

because the trial court “undermine[d] the prosecution’s burden to 

prove all elements to a jury beyond a reasonable doubt.” Pratt 

contends Enslow’s testimony “impacted upon the jury’s 

determination of the only direct evidence of the perpetrator.” But 

Enslow’s testimony was not the only evidence of the perpetrator’s 

identity. Taken together, the testimony of Ordaz, Bowen, and 

Saddi also identified Pratt as the shooter. 
40

Nor, contrary to Pratt’s assertion, was Enslow’s testimony 

“tantamount to an opinion on guilt.” “‘Testimony in the form of 

an opinion that is otherwise admissible is not objectionable 

because it embraces the ultimate issue to be decided by the trier 

of fact.’” (People v. Brown, supra, 59 Cal.4th at p. 101; see Evid.

Code, § 805.) Enslow did not give an opinion on Pratt’s guilt; she 

stated only that the person in the surveillance videos looked 

similar to Pratt and that his jeans also looked similar. As 

discussed, Pratt’s expert witness gave contrary opinions, and the 

court told the jurors they were not bound by either witness’s 

testimony. (See Brown, at p. 101; see also People v. Lindberg

(2008) 45 Cal.4th 1, 49 [expert witness’s opinion the defendant 

was a White supremacist was not an opinion on the defendant’s 

guilt, where the expert “stated no opinion as to defendant’s guilt 

or the truth of the [hate-murder] special circumstances,” and the 

expert’s opinion “did not bind the jurors on this point or preclude 

them from considering other relevant evidence”].)

C. Remand Is Appropriate for the Trial Court To 

Exercise Its Discretion Whether To Impose a Lesser 

Firearm Enhancement Under Section 12022.53

As stated, the trial court imposed a term of 25 years to life 

for the firearm enhancement under section 12022.53, 

subdivision (d), for personally and intentionally discharging a 

firearm causing great bodily injury or death. The trial court 

sentenced Pratt after the Legislature amended section 12022.53, 

subdivision (h), to give the court the discretion to strike or 

dismiss firearm enhancements under section 12022.53. 

(Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) But neither the trial 
41

court, counsel for Pratt, nor the prosecutor was aware of the 

court’s sentencing discretion. The People concede remand is 

appropriate to give the court an opportunity to exercise its 

discretion under section 12022.53, subdivision (h). (See People v. 

Flores (2020) 9 Cal.5th 371, 431-432 [appropriate remedy is to 

remand for resentencing where a court is unaware of the scope of 

its discretionary powers,“‘unless the record “clearly indicate[s]” 

the trial court would have reached the same conclusion “even if it 

had been aware that it had such discretion”’”]; People v. Ochoa

(2020) 53 Cal.App.5th 841, 853 [same].)

The parties disagree, however, about the scope of the trial 

court’s discretion on remand. Pratt cites People v. Morrison

(2019) 34 Cal.App.5th 217 (Morrison) for the proposition the trial 

court has discretion to impose or strike the enhancement under 

section 12022.53, subdivision (d), or to impose a lesser

enhancement under section 12022.53, subdivision (b) or (c). The 

People argue Morrison was wrongly decided and cite People v. 

Tirado (2019) 38 Cal.App.5th 637, review granted November 13, 

2019, S257658 (Tirado), for the proposition section 12022.53, 

subdivision (h), does not authorize a trial court “to substitute one 

enhancement for another.” (Tirado, at p. 643.)16 The Supreme 

16 See also People v. Hoang (2021) 66 Cal.App.5th 1020, 1024

(“the plain language of section 12022.53, subdivision (h) 

authorizes a trial court to strike or dismiss a firearm 

enhancement only; it does not permit the court to substitute a 

lesser firearm enhancement”), review granted September 29, 

2021, S270553; People v. Delavega (2021) 59 Cal.App.5th 1074, 

1087-1088 (same), review granted April 14, 2021, S267293; 

People v. Valles (2020) 49 Cal.App.5th 156, 166 (same), review 

granted July 22, 2020, S262757; People v. Yanez (2020) 
42

Court will very soon decide the issue. (See People v. Garcia

(2020) 46 Cal.App.5th 786, 788, review granted June 10, 2020, 

S261772 (Garcia).) But for now, we believe Morrison is better 

reasoned.

As the court in Morrison explained, “Case law has 

recognized that the court may impose a ‘lesser included’ 

enhancement that was not charged in the information when a 

greater enhancement found true by the trier of fact is either 

legally inapplicable or unsupported by sufficient evidence.”

(Morrison, supra, 34 Cal.App.5th at p. 222.) The same principle 

gives the court discretion to impose an enhancement under

section 12022.53, subdivision (b) or (c), that was not presented to 

the jury. Indeed, the Legislature’s purpose in amending section 

12022.53, subdivision (h), was to expand the trial court’s 

discretion to reduce criminal sentences in appropriate cases, not 

to restrict it. (See Sen. Com. on Public Safety, Analysis of Sen. 

Bill No. 620 (2017-2018 Reg. Sess.) as amended Mar. 28, 2017, 

p. 3 [Senate Bill No. 620 “would allow a court to use judicial 

discretion when applying a sentence enhancement when a person 

uses or discharges a firearm when a person is convicted for 

committing a felony”]; id. at p. 8 [Senate Bill No. 620 “allows a 

court to use judicial discretion and take into account the nature 

and severity of the crime and other mitigating and aggravating 

factors during sentencing” and “provides judges the ability to 

impose sentences that fit the severity of the offense”]; Assem. 

Com. on Public Safety, Analysis of Sen. Bill No. 620 (2017-2018 

Reg. Sess.) as amended Mar. 28, 2017, p. 8 [Senate Bill No. 620 

44 Cal.App.5th 452, 459-460 (same), review granted April 22, 

2020, S260819.
43

“‘allows a judge to take into account the nature and severity of 

the crime, as well as the individual’s culpability, during 

sentencing’” and “‘provides judges the ability to impose sentences 

that fit the severity of the offense, helping to ensure that 

incarcerated Californians do not serve unnecessarily long 

sentences’”]; Sen. 3d reading analysis of Sen. Bill No. 620 (2017-

2018 Reg. Sess.) as amended June 15, 2017, p. 3 [Senate Bill 

No. 620 “‘allows a judge to exercise discretion on whether or not 

to make a long sentence longer if it is in the interest of justice’”].)

The conclusion of the courts in Tirado and Garcia that trial 

courts do not have discretion to impose a 10- or 20-year 

enhancement under section 12022.53, subdivision (b) or (c), if the 

court strikes or dismisses a 25-years-to-life enhancement under

section 12022.53, subdivision (d), was based on the rationale that 

“[n]othing in the plain language of sections 1385 and 12022.53, 

subdivision (h) authorizes a trial court to substitute one 

enhancement for another.” (Tirado, supra, 38 Cal.App.5th at 

p. 643, review granted; see Garcia, supra, 46 Cal.App.5th at 

p. 791 [“section 12022.53, subdivision (h) confers the authority to 

‘strike or dismiss’ a firearm enhancement set forth in section 

12022.53” and “says nothing about substituting or modifying 

enhancements”].) As the court in Tirado stated, “This language 

indicates the court’s power pursuant to these sections is binary:

The court can choose to dismiss a charge or enhancement in the 

interest of justice, or it can choose to take no action. There is 

nothing in either statute that conveys the power to change, 

modify, or substitute a charge or enhancement.” (Tirado, at 

p. 643.)

But the question is not whether the court has the “binary” 

discretion “pursuant to” the plain language of section 12022.53, 
44

subdivision (h), to impose a lesser enhancement after the greater 

enhancement has been stricken or is otherwise unavailable. The 

question is whether the plain language of section 12022.53, 

subdivision (h), takes away discretion the court already has. And 

it doesn’t. As the concurring opinion in People v. Valles (2020) 

49 Cal.App.5th 156, review granted July 22, 2020, S262757, 

explained: “The question is not whether the amended statute 

conveys the power to impose an uncharged lesser enhancement (or 

change or modify an enhancement). Rather, the question is 

whether, having exercised its power under the amended statute 

to strike a greater enhancement, the court still has its previously 

recognized power to impose an uncharged lesser.” (Id. at p. 171 

(conc. opn. of Menetrez, J.).) 

DISPOSITION

The convictions are affirmed. The trial court is directed to 

exercise its discretion whether to impose a lesser firearm 

enhancement under section 12022.53.

SEGAL, J. 

We concur:

PERLUSS, P. J. FEUER, J.