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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

LAT RELL 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 Ge neral, 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. T he trial court sentenced Pratt to 25 years to life

, plus 25 years to life for the fire arm 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

. Castane da “did a little laugh” and approached someone in a parked car. T he 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 kno w 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 a n unlit area of the parking lot

40 feet from Ordaz

. Ordaz heard g unshots 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 look ed “like they needed to be redone” down to the back of
his neck. B owen said the man wo re 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 Inves tigate s 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 show ed a man wearing dark jeans with a white design on the back pockets talking to Castaneda, who was4

wearing a light colored shirt. The man in dark jeans wore them so low on his hips that he stepped on the bottom hem s as he
walked. Sheriff’s detectives interviewed Ordaz and Bowen about the shooting, showed them the surveillance videos, and asked them if they recognize d 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
video s

. 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 video s 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 kick ed 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. T he 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 t he People played the recording of Saddi’s interview with Sheriff’s detectives for the jury.5

mother was also a regular customer, and s he drove a silver car manufactured by a Korean company . Saddi agreed to tell the
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 dete ctives 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

. D etectives 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 sweat shirt. 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

, with in the meaning of section 12022 .53, subdivision (b) ; personally and6

intentionally discharged a firearm

, within the meaning of section 12022.53, subdivision (c) ; and personally and intentionally
discha rged 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). T he jury convicted Pratt on both counts and found true the allegation
he personally and intentionally discharged a firearm causing great bodily injury or death

, wit hin the meaning of section 12022.53, subdivision (d). On the murder conviction, t he 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 t imely 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 applica bility 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. Grif fin (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 attorney s 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, a nd 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 pr ompted 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 P rospective J uror No. 14 and P rospective J uror No. 9

, after she moved into the first P rospective J uror 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 the m as a grou p. 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 t he 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 grou p. Counsel for Pratt asked the group of prospective jurors questions about their abil ity to keep an open mind throughout
the trial. No ne 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 sev eral individual jurors to ask questions or pose hypotheticals. T he 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 con tent 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 challe nges 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 juror s in the9

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 [ Prospec tive 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 def endant, 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 cog nizable grou p. [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 dir e. They felt she
was not vocal

. . . .” The trial court stated , “ T he court did note that there [are] approximately six African Americans in the panel10

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 loo ks 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

ex cused 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 o f 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

perem ptory 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 , at11

p. 999.) “When a party opposing a peremptory strike makes a prima facie case that the strike was motivated by imp ermissible discrimination (step 1), the proponent of the strike must offer a nondiscriminatory reason for that challenge (step 2). [Cita tion.] The que stion 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 cas e of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusin g the juror for the rec ord, (3) the prosecutor provides

non discriminatory 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 modif

ies 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 ( i d. , 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 ” ( i d. , 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 third

stage r uling, 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

pro secutor 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. 77 3 [“ 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 juror s 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 no13

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 ste p. [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 discrimi nation 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 r ace .” ( 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 “‘“ mak e as complete a record as feasible ”’” to support a prima facie showing].)

3. Substantial Evidence Support ed 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 prosec u tor challenged one of14

only two Black jurors in the initial panel of 12 prospective juro rs

. 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

p p

. 769

- 770.) The prosecutor “ used two of h is 11 peremptory challenges (18 percent) on Black prospective jurors, even though they comprised only 8.13 percent of the prospective jurors
overall .” (

I d

. 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 [we re ] significant ,” but held that, “ standing a lone, 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 re cord 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 “brown

skinned.” I t 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
fac t 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 Supr e me 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 (2 017) 2 Cal.5th 1184, 1212 [“‘“‘ As a practical matter,

. . . the challenge of one or two jurors can rarely suggest a p attern 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 ’ ” ].)
O ther evidence in Battle weakened the defendant’s prima facie showing, including that the prosecut or accepted a jury that16

includ ed a Black prospective juror (until counsel for the
defendant exercised a peremptory c hallenge against him) an d 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

. ”]. )
A s in this case, the prospective juror at issue in Battle “had
much to commend her

. ” ( Battle

, supra , 11 Cal.5th at p. 779.) B ut 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 th is was not the only relevant fact undermining an inference of discriminatory purpose
in that case. 8 Indeed, e ven 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 “ a17

“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 imp osing [a penalty ]

. . . .” ’” ( Battle , at p. 779 ;

see ibid. [ prosecutors “ don ’ t have to accept a prospective juror simp ly because the juror may be pro prosecution 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

wea ker in this case than it was in Battle. Both cases involve d
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 wa s 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 d eath penalty

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

of t wo prospective Black jurors (50 percent
, compared to
66.6 7 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 alleg e 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
Juro r No. 8380 any more or less than other jurors

. Pratt argues t here 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. B ut at the first stage of the Batson / Wheeler analysis we do not consider the prosecutor’s stated reasons , if any, for exercising a peremptory challeng e

. ( People v. Scott

, supra , 61 Cal.4th at p. 3 90; 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 prosecuto r’s peremptory challenges were against Black prospec tive jurors, who comprised 8.13 pe rcent of the jury pool, a ratio of 2.21 to 1. (See Battle

, supra , 11 Cal.5th at

p p

. 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 ar gument the prosecutor
struck 50 percent of Black prospective jurors in the jury box at the time

. Under the totalit y 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 d id not support an inference of discriminatory intent in the context of the entir e jury selection

process , where the prosecutor used approximately 63 percent of
his fir st eight peremptory strikes on B lack jurors, even though such jurors constituted only 34 pe rcent 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 Prejudicia l Err or in Admitting Testimony from a Forensic and Graphic Arts Expert
Th e 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 b etween 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 People20

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 a nd 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 lacke d relevant expertise. The People argued Enslow would only “d iscuss 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 [“ ‘ “ a s 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 t he “ultimate conclusion” Pratt was “the person that committed the
crime.” The record does not show the Peopl e 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 edu cated 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 ex pert 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 an d 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 said22

Enslow’s testimony would aid the jury by “identifying particular facial features and bringing [them] to [the jury’s] attention.”
At the hearing under Eviden ce 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,” “patte rning and imaging,” and “different kinds of designs” for products including fabric and t

shirts. 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 vid eo 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 Colle ge. 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 arti sts 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 a rtist” 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 composite23

images, and created facial reconstructions from skeletons. Enslow said she often “work[e d] 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 look ed like. With regard to digital imaging, Enslow explained she had experience using phot o editing software to modify digital images for photographic lineups to make them
more “fair.”
Enslow stated that i n 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 lo ok 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, t o 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 lo oked at the jeans and the video, identified the “best comparison stills” from the video, and compared them

. Enslow said that, t o form her opinion about the images of Pratt, she relied on her “education as to [her] knowledge about the human
face and how th e human face is built

— skull, musculature

— and the images [she saw] in the video.” She stated that, “ b ecause 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 e nhanced in any way and that s he 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 “notice d everything about the jeans that [she] could,” including the brand (“Royalty”), the image on the pocket s of the jean s , 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 sc reenshots 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 photograp hs 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 p hotographs 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 we re “similar,” including25

the nose (“shorter, c ompact, 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 enha ncement 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 o f the video images she reviewed. Enslow said, “ N ot 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 des ign 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 the26

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 h er conclusion on similarities in the subject ’ s broad nose, mustache, full lips, and strong jaw. She admitt ed 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 th at 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 v ideo “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 “actua l 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” image27

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

p revented 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 act ual 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, an d 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 Kanj i 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, e xperience, training, or education sufficient to qualify him

11 Kanji are actually ch aracters, 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 exp ert 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. Supe rior 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. 42 6.) “‘ “ 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 w ill 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 [t he 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, Pe ople 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 s ection 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 under30

the Evidence Code, questions about the depth or scope of his or
her knowled ge 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 p p. 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 testif ied 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 ha d “ relevant on

- the

job training and experience ”] .) Although Enslow’s qualifications were not particularly impressive and the evidence of her credentials was thin, 12 w e 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 certified31

qualification s 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 un der 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.
U nited 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 Kel ly / Frye

. ( See People v. Peterson

, supra , 10 Cal.5th at p. 4 44 [“ 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 te levision broadcast communications with an emphasis on television engineering ,” h eaded a police department ’ s f orensic v ideo u nit , 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. ’ ” ( I d. at p. 772.) Pratt argue s 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 sc ientific 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 fal lible. ’ ” ( People v. Peterson

, supra , 10 Cal.5th at p p. 457

- 458.)33

imaging and at least a little in graphic design. H er 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 Harmle ss 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, j urors in their everyday li ves make comparison s of o bjects 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 case s 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 photo graph) portray ed 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 U nited States v. Alexander (5t h 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 ang le, and focal length of those taken at the bank

, ” aided the jury in visually comparing the photos ]; U nited States v. Sellers (4t h Cir. 1977)
566 F.2d 884, 886 [e xpert testimony “ may assist the jury ’ s evaluation of photographs by explaining the effects of light, shadow, and reflections, and the distortion caused by the34

perspective of the picture, and other technical factors ”]; State v.
Ali (Minn. 2014) 855 N.W.2d 235, 251

- 252 [ trial court di d 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 distanc e from
the camera ” indicated “ that one suspect [was] taller than the
other ”]; Stevenson v. State (Tex.Ct. Ap p. 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 superim posed on the video a “ ‘M easurement 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 ’ ” ].) S uch enhancements and expertise a llow a “ layperson [to] appre ciate 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 provin ce of the jury. (See U nited States v. Dorsey (4t h Cir. 1995) 45 F.3d 809, 815 [“ the comparison of photographs is something that can sufficiently be done by the35

jury without help from an expert ”]; U nited States v. Brewer (9th Cir. 1986) 783 F.2d 841, 842 [ district court did not err in excluding expert photographic comparison testimony where “t he untrained jury could compare the photographs of the robber with
those of [the defendant] without the special assistance of an

ex pert ” ] ; U

nited 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
observatio ns 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 i ts fact

- finding function ”] .) The jurors were just as capable of looking at and comparing the pictures as Enslow was

. The People rely on U

nited States v. Cairns (9th Cir. 1970)
434 F.2d 643

. In that case the district court admitted expert testimony from a “ photographic identification specialist ”

compar ing 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 l ines, 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 no36

error. 14 (

Ibid

. ; see U

nited 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]; U nited States v. Green (8th Cir. 1975) 525 F.2d 386, 391

- 392 [expert testimony comparing surveillance photogra phs 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 co mparing
bank surveilla nce 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 pant s that were apparent in the surveillance videos, such as contrast in the fabric on one of the thighs ”]; cf. U nited 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 convince s 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 ’ in dependent 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 testi mony 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 p hotograph and the jeans worn by the person in the surveillance video

. At least in the
latter case, Enslow’s explanation s 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 photograp h 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 U

nited States v. Trejo

, supra , 501 F.2d 138, Enslow did not identify any unusual physical characteristics in
h er 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.” I n 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 reac hed in the absence of the error ” ’” ]; People v. Prieto (2003) 30 Cal.4th 226, 247 [ Watson harmless

error standard applies to the erroneous admission of expert testimony ] .) The testimony of Ordaz, Bowen, and Saddi
overwhe lmingly implicate d 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
corroborate d 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 opinion s “ ‘ 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. U nited States v. Sellers

, supra , 566 F.2d at p. 886 [ trial court’s error in excluding testimony by the defendant’s expert that t he defendant was not the person shown in surveillance photographs , while admitting39

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, unreas onable, 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 whic h [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 on ly 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 simila r

. As discussed, P ratt’s expert witness gave contrary opinions, and the court told the jurors they were not bound by eit her 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 App ropriate for the Trial Court To
Exerc ise Its Discre tion 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 dis charging 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
dis miss firearm enhancements under section 12022.53. (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) But neither the trial41

court
, counsel for Pratt , n or 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 8 41, 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) 3 8 Cal.App.5th 637, review granted Nov ember 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 o f 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, 108 7

- 1088 (same) , review granted Apr il 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 th e issue . (S ee People v. Garcia (2020) 46 Cal.App.5th 786, 788

, review granted June 10, 2020,
S261772 ( Garcia ) .) B ut 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.” ( Morriso n , 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 Re g. Sess.) as amended Mar. 28, 2017,

p. 3 [Sen ate 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 [Sen ate Bill No. 620 “allows a

court t o use judicial discretion and take into ac count 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 Se n . Bill No. 620 (2017

- 2018 Reg. Sess.) as amended Mar. 28, 2017, p. 8 [Senate Bill No. 620

44 C al.App.5th 452, 459

- 460 (same), review granted April 22, 2020, S260819

.43

“ ‘ allows a judge to take into ac count the nature and severity of
the c rime, 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 ’ ”]; S en. 3d reading analysis of Sen. Bill No. 620 (2017

- 2018 Reg. Sess.) as amended June 15, 2017, p. 3 [Se nate 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 po wer to change, modify, or substitute a charge or enhancement.” ( Tirado , at

p. 643.)
But t he 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.A pp.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 Mene trez, 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.