Filed 1/20/21 P. v. Prince 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.

AUBREY LAMONT PRINCE

et al.,

Defendants and 

Appellants.

 B297599

 (Los Angeles County

 Super. Ct. No. MA074878)

APPEALS from judgments of the Superior Court of 

Los Angeles County, Denise McLaughlin-Bennett, Judge. 

Judgment as to Anderson is affirmed. Convictions as to Prince 

are affirmed, and the matter is remanded for resentencing.

Derek K. Kowata, under appointment by the Court of 

Appeal, for Defendant and Appellant Aubrey Lamont Prince.

Joanna McKim, under appointment by the Court of Appeal, 

for Defendant and Appellant Mykael Thomas Anderson.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Stephanie A. Miyoshi and David A. 

Wildman, Deputy Attorneys General, for Plaintiff and 

Respondent.

____________________________________

A jury found Aubrey Lamont Prince and Mykael Thomas 

Anderson not guilty of attempted murder but guilty of the lesser 

included offense of attempted voluntary manslaughter, as well as

felony possession of firearms and ammunition. On appeal they 

raise a number of challenges to their convictions, including 

insufficient evidence, evidentiary error, improper instructions

and prosecutorial misconduct and also argue the trial court 

committed sentencing error. We affirm the convictions of both 

men and the sentence as to Anderson. As to Prince only, we 

remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Second Amended Information

On January 24, 2019 Prince and Anderson were each 

charged in a second amended information with one count of 

attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 (count 1)

with special firearm-use allegations pursuant to

section 12022.53. In addition, Prince was charged with 

two counts of carrying a loaded firearm while an active 

participant in a criminal street gang (§ 25850, subds. (a), (c)(3)) 

(counts 2 and 6) and two counts of unlawfully possessing

ammunition (§ 30305, subd. (a)(1)) (counts 3 and 7). Anderson 

1 Statutory references are to this code unless otherwise 

stated.
3

was additionally charged with one count of carrying a loaded 

firearm while an active member in a criminal street gang 

(§ 25850, subds. (a), (c)(3)) (count 4) and one count of unlawfully 

possessing ammunition (§ 30305, subd. (a)(1)) (count 5). It was 

further alleged each offense had been committed for the benefit of 

a criminal street gang (§ 186.22, subd. (b)(1)(A) and (C)). 

2. The Evidence at Trial

a. The shooting

On the night of August 30, 2015 Prince and Anderson went 

to a liquor store near Anderson’s house to purchase snacks for 

Anderson’s wife. As they left the store, they saw Darcel Jackson 

pacing in the middle of the street near the store’s entrance. 

Prince and Anderson initially walked past Jackson, but after a 

few moments they turned around to face him. Following a brief 

exchange, Prince and Anderson drew weapons and shot at 

Jackson. Jackson was hit multiple times, including in his back 

and buttocks.

A bystander called police to report the shooting and stated 

he had heard 12 gunshots and seen a black car with red racing 

stripes leave the scene shortly after the shooting. 

The liquor store’s video surveillance system recorded the 

incident from various angles. Throughout the trial the jury was 

shown footage depicting the shooting and the moments leading 

up to it. 
4

b. Jackson’s testimony2

Jackson’s account of the incident varied over the course of 

the police investigation and trial. During an interview with 

police in February 2018, Jackson said he did not remember 

exactly what had happened the night of the shooting. He thought 

Prince and Anderson had initiated the interaction by speaking to 

him and he had been shot while running away. He recalled 

Prince and Anderson were approximately two car-lengths away 

from him when he was shot. In an October 2018 police interview 

Jackson again said Prince and Anderson spoke to him first by 

asking where he was from. Jackson told them he was a member 

of E-Dubs, which is a Bloods-affiliated criminal street gang.

During his preliminary hearing testimony in 

November 2018, Jackson admitted he was at the liquor store to 

meet his marijuana dealer. He initially stated he did not recall 

who initiated the encounter with Prince and Anderson prior to 

the shooting. Upon further questioning, however, Jackson again 

said Prince and Anderson spoke first, asking him where he was 

from. He replied he was a member of E-Dubs. Later in his 

testimony he said it was possible he had accosted Prince and 

Anderson and could not recall whether he had pretended to have 

a gun by reaching under his shirt in an effort to make them back 

away. 

2 At the beginning of trial Jackson could not be located and 

was ruled unavailable pursuant to Evidence Code section 240. 

Accordingly, audio recordings of two police interviews with 

Jackson were played, and his preliminary hearing testimony was 

read aloud for the jury. Jackson was subsequently located and 

testified in person.
5

When he testified at trial, Jackson initially stated he was 

unsure who had spoken first prior to the shooting; but he later 

admitted he may have initiated the encounter by saying, “What 

have you got?” and telling Prince and Anderson to give him 

everything they had. Jackson also testified he could not be 

certain, but he thought he was at the gas station that night to 

buy drugs.

As a result of the shooting Jackson wore a colostomy bag 

and had multiple scars on his wrist, stomach and neck.3

c. The People’s firearm expert

Phil Teramoto, a senior criminalist in the Los Angeles 

County Sheriff’s Department’s firearms identification section, 

testified regarding the type of weapon used to shoot Jackson. He 

stated seven shell casings had been found at the scene and they 

had all been fired from the same semiautomatic handgun. They 

could not have been fired from a revolver because revolvers do 

not eject shell casings. 

In reviewing the video footage Teramoto observed the 

person in white, later identified as Prince, could be seen pointing 

a gun with a muzzle flash coming out of it. Teramoto explained 

the muzzle flash indicated Prince was firing the gun. Teramoto 

only saw one muzzle flash from Prince’s gun in the video; but he 

admitted that, given the video quality and the number of frames 

3 It is unclear from Jackson’s various statements whether he 

was shot twice—once in the buttocks with the bullet travelling to 

his stomach and once in the back with the bullet travelling to his 

lungs, neck and then wrist—or whether he was shot 

three times—once in the buttocks, once in the back and a 

separate shot into his wrist.
6

per second, it was possible two muzzle flashes had occurred. In 

Teramoto’s opinion it was unlikely Prince could have fired 

seven times during the approximately two seconds he had his 

arm raised. Teramoto could not determine if Prince had been 

holding a revolver or a semiautomatic handgun. 

Teramoto also stated he could see Anderson in the video

holding something in his extended hand, but there were no 

muzzle flashes coming from Anderson’s outstretched arm. 

Teramoto could not determine what object Anderson had been

holding. 

d. The arrests of Prince and Anderson

Prince was arrested on August 11, 2016 after police 

executed a search warrant at his home. During the search of his 

home police found clothing associated with Whitsett Avenue 

Gangster Crips and clothing with Prince’s gang moniker printed 

on it. Police also searched Prince’s girlfriend’s car, which was the 

same make and model as the car seen leaving the scene of the 

shooting. The car did not have red racing stripes at the time of 

Prince’s arrest, but his girlfriend testified it had red racing 

stripes at some point. In the car police found three loaded 

handguns and additional ammunition.

Anderson was arrested one week later, on August 17, 2016. 

When police searched Anderson’s home at the time of his arrest,

they found a box of ammunition in a safe in the closet. Police also 

found clothing associated with the Whitsett Avenue Gangster 

Crips and clothing with Anderson’s gang moniker printed on it.

During an interview with police the day after his arrest, 

Anderson told police that on the night of the shooting he had 

been holding a taser. Later in the interview he said it had been a 

BB gun. Audio recordings were played to the jury of telephone 
7

calls Anderson made from jail a few days after his arrest. In 

one call Anderson told his wife that, in the surveillance video the 

police had showed him, he could see the other person’s gun firing 

but, “They don’t show my shit. . . . On my shit, they don’t show 

me, like they show me lifting, but no sparks.” When his wife 

asked what he was lifting, Anderson replied, “The BB gun.” 

e. The gang evidence

Prince stipulated he had been an active member of the 

Whitsett Avenue Gangster Crips on August 30, 2015.

Sergeant Matthew Harer of the Los Angeles Police 

Department, the People’s gang expert, testified Prince and 

Anderson had tattoos and wore clothing identifying them as 

members of the Whitsett Avenue Gangster Crips. They also 

associated with known members of the gang and spent time at a 

park known to be frequented by gang members. Based on this 

and Anderson’s self-identification as a Whitsett Avenue member 

to three police officers in 2010 and 2014, Harer testified 

Anderson was an active member of the gang in August 2015.

Given a hypothetical similar to the shooting in this case, 

Sergeant Harer opined the shooting was committed for the 

benefit of, and in association with, a criminal street gang. He 

explained gangs thrive on violence; by showing the gang was 

willing to shoot a rival, it gains power and influence. Harer also 

stated the shooting would benefit the gang by eliminating a rival 

and helping with recruitment.

f. Witnesses for Prince

Prince presented testimony from two expert witnesses: 

David Kim on firearm forensics, and Thomas Guzman-Sanchez 
8

on video recording technology. Prince also testified in his own 

defense.

Kim, a retired forensics firearms examiner for the 

Los Angeles County Sheriff’s Department, opined that the shell 

casings found at the scene had not been fired by Prince. Based on 

the size and brightness of the muzzle flash in the video, Kim was 

90 percent sure Prince had fired a revolver, which would not have 

ejected shell casings, and not a semiautomatic handgun, which 

would have ejected shell casings. Kim also stated, even if Prince 

had been firing a semiautomatic handgun, he could not have fired 

seven bullets in the few seconds the video showed him shooting. 

In addition, the shell casings would have landed in a different 

area than they had been found. In rebuttal to this testimony, the 

prosecution presented the testimony of Robert Keil, a supervising 

criminalist with the Los Angeles County Sheriff’s Department’s 

firearms identification section. Keil agreed with Kim that 

revolvers tended to have more muzzle flash than semiautomatic 

handguns. However he did not believe it was possible to 

determine from the video which type of weapon Prince had fired.

Guzman-Sanchez, who had 30 years of experience in the 

television, film and recording industry, testified regarding the 

surveillance video from the night of the shooting. GuzmanSanchez explained there were lighter pixels in the images near 

Anderson’s extended hand, which could be the result of smoke 

coming out of the object Anderson was holding. On crossexamination Guzman-Sanchez stated the video footage showing 

Prince and Anderson during the shooting was recorded at a speed 

of one frame per second. Because of that, he explained, if 

something was moving very quickly, the camera might not record 

each movement. Specifically, he conceded, there could have been 
9

additional muzzle flashes from Prince’s gun that were not 

captured on the video recording.

Prince testified he had been a member of the 

Whitsett Avenue Gangster Crips for more than 10 years and was 

an active member of the gang in 2015 and 2016. He admitted he 

had been carrying a loaded revolver the night of the shooting. He 

explained he always carried a gun because it made him feel safe. 

He would rather be arrested for carrying a gun then risk being 

attacked when he did not have a gun. 

Prince testified he drove to the liquor store with Anderson 

on August 30, 2015 in his girlfriend’s car—a black sedan with red 

racing stripes. After making a purchase in the store, Prince and 

Anderson were walking to the car when Prince saw Jackson 

pacing back and forth in the middle of the street. As Prince and 

Anderson continued walking past Jackson, Prince heard Jackson 

say, “Hey, whatcha got on you?” or “Hey whatcha you got?” 

Prince was initially confused and did not know whether Jackson 

was trying to purchase drugs or trying to rob him. Prince turned 

to face Jackson and asked him what he had said. According to 

Prince, Jackson aggressively responded, “Bitch ass, you know 

what I mean. Whatcha you got on you?” At that point Prince 

became “100 percent certain” Jackson was trying to rob him. 

Prince testified, “I was definitely afraid, given the circumstances 

and his demeanor. He kept looking over his shoulder like 

before—before he asked me he kept looking over his shoulder, 

then he reached under his shirt and I was—I was—I was—I was 

certain I was going to be shot.” Panicked, Prince grabbed his 

gun from his pocket and fired two shots at Jackson. Prince 

testified he was not trying to kill Jackson but simply wanted to 

defend himself. After firing, Prince ran back to the car. 
10

Anderson arrived at the car a couple seconds later, and they 

drove away.

Prince did not know whether Anderson fired a gun at 

Jackson, but Prince did hear gunfire after he had stopped 

shooting. Anderson was not holding a gun when he got into the 

car. Prince testified Anderson was an active gang member in 

August 2015.

Prince admitted the guns and ammunition recovered from 

his girlfriend’s car in August 2016 belonged to him. 

g. Witnesses for Anderson

Anderson’s mother testified regarding the ammunition 

found at the time of Anderson’s arrest. She said Anderson had 

been living with her when he was arrested, and the ammunition 

the police found belonged to her ex-husband who had lived in the 

house in 2010.

Anderson also presented testimony from Alex Alonso, a 

college professor who had been studying criminal street gangs 

and interviewing gang members for 30 years. Alonso explained 

gang members did not always act in association with, or for the 

benefit of, a criminal street gang; they sometimes acted in their 

own self-interest. After being given a hypothetical similar to the 

shooting in this case, Alonso stated it seemed as if the shooters 

acted spontaneously and not for the benefit of their gang. 

However, on cross-examination, when asked whether it would 

change his opinion if the victim had initiated the conversation by 

asking where the shooters were from, Alonso said it may be more 

likely the shooting was for the benefit of the gang. 
11

3. The Verdict

The jury found Prince and Anderson not guilty of 

attempted murder but guilty of the lesser included offense of 

attempted voluntary manslaughter. In connection with that 

offense the jury found true the special allegations Prince and 

Anderson had caused great bodily injury to Jackson and not true 

that they had committed the offense for the benefit of a criminal 

street gang. 

The jury also found Prince guilty of carrying a loaded 

firearm on the date of the shooting (count 2) and the date of his 

arrest (count 6) and guilty of unlawful possession of ammunition 

on the date of the shooting (count 3) and the date of his arrest 

(count 7). In connection with counts 2 and 6 the jury found true 

the special allegations Prince was an active participant in a 

criminal street gang at the time of the offenses. In connection 

with counts 3 and 7 the jury found true the special allegations 

Prince was prohibited from owning or possessing a firearm due to 

a prior felony conviction.4 As to counts 2, 3, 6 and 7 the jury 

found true the special allegations Prince committed the offenses 

for the benefit of, or in association with, a criminal street gang.5

Anderson was found guilty of carrying a loaded firearm on 

the date of the shooting (count 4) and of unlawful possession of 

ammunition at the time of his arrest (count 5). In connection 

4 During trial Prince stipulated he had been convicted in 

2013 of felony carrying of a concealed weapon (§ 25400, 

subd. (a)(2)).

5 During closing argument Prince’s counsel conceded Prince 

was guilty of counts 2, 3 and 7 but maintained the offenses were 

not committed for the benefit of a criminal street gang.
12

with count 4 the jury found true the special allegation Anderson 

was an active participant in a criminal street gang. As to count 5 

the jury found true the special allegation Anderson was 

prohibited from owning or possessing a firearm due to a prior 

felony conviction. In connection with count 4 the jury found 

Anderson committed the offense for the benefit of a criminal 

street gang but found the gang allegation not true as to count 5.

4. Sentencing

The trial court sentenced Prince to an aggregate state 

prison term of 13 years two months: the upper term of five years 

six months for count 1, plus three years for the great bodily 

injury enhancement; a consecutive term of eight months (onethird the middle term) for count 2, plus one year for the gang 

enhancement; a consecutive term of eight months (one-third the 

middle term) for count 3, a consecutive term of eight months (onethird the middle term) for count 6, plus one year for the gang 

enhancement; and a consecutive term of eight months (one-third 

the middle term) for count 7.

Anderson was sentenced to an aggregate state prison term 

of 10 years 10 months: the upper term of five years six months for 

count 1, plus three years for the great bodily injury enhancement; 

a consecutive term of eight months (one-third the middle term) 

for count 4, plus one year for the gang enhancement; and a 

consecutive term of eight months (one-third the middle term) for 

count 5.
13

DISCUSSION6

1. Substantial Evidence Supports the Convictions

a. Standard of review

In considering a claim of insufficient evidence in a criminal 

case, “we review the whole record to determine whether any

rational trier of fact could have found the essential elements of 

the crime or special circumstances beyond a reasonable doubt. 

[Citation.] The record must disclose substantial evidence to 

support the verdict—i.e., evidence that is reasonable, credible, 

and of solid value—such that a reasonable trier of fact could find 

the defendant guilty beyond a reasonable doubt. [Citation.] In 

applying this test, we review the evidence in the light most 

favorable to the prosecution and presume in support of the 

judgment the existence of every fact the jury could reasonably 

have deduced from the evidence. [Citation.] ‘Conflicts and even 

testimony [that] is subject to justifiable suspicion do not justify 

the reversal of a judgment, for it is the exclusive province of the 

trial judge or jury to determine the credibility of a witness and 

the truth or falsity of the facts upon which a determination 

depends. [Citation.] We resolve neither credibility issues nor 

6 Pursuant to California Rules of Court, rule 8.200(a)(5), 

Prince and Anderson have joined in each other’s arguments to the 

extent those arguments may benefit them. We have reviewed 

each of the issues in light of that joinder but have found no 

instance in which our resolution of the issue requires a different 

outcome for the other defendant. (See generally People v. Nero

(2010) 181 Cal.App.4th 504, 510, fn. 11 [“[j]oinder may be broadly 

permitted [citation], but each appellant has the burden of 

demonstrating error and prejudice”].) 
14

evidentiary conflicts; we look for substantial evidence. 

[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is 

unwarranted unless it appears “that upon no hypothesis 

whatever is there sufficient substantial evidence to support”’ the 

jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357; 

accord, People v. Dalton (2019) 7 Cal.5th 166, 243-244; People v. 

Penunuri (2018) 5 Cal.5th 126, 142.) “‘Where the circumstances 

reasonably justify the trier of fact’s findings, a reviewing court’s 

conclusion the circumstances might also reasonably be reconciled 

with a contrary finding does not warrant the judgment’s 

reversal.’” (People v. Clark (2016) 63 Cal.4th 522, 626.)

b. Substantial evidence supports Anderson’s conviction

for attempted voluntary manslaughter 

A jury may convict a defendant of voluntary manslaughter 

by finding the defendant killed the victim with either intent to 

kill or conscious disregard for human life. (People v. Lasko (2000) 

23 Cal.4th 101, 104; People v. Blakeley (2000) 23 Cal.4th 82, 91.) 

A conviction for attempted voluntary manslaughter, however, 

requires proof the defendant had the specific intent to kill the 

victim. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549-

1550 [“If the crime of attempted murder requires a specific intent 

to bring about a desired result (the killing of a human being), 

then it appears to us that the crime of attempted voluntary 

manslaughter must also require a specific intent to bring about 

that same desired result (the killing of a human being)”]; People 

v. Gutierrez (2003) 112 Cal.App.4th 704, 710 [“attempted 

voluntary manslaughter cannot be premised on the theory the 

defendant acted with conscious disregard for life, because it 

would be based on the ‘internally contradictory premise’ that one 

can intend to commit a reckless killing”].) “Mental state and 
15

intent are rarely susceptible of direct proof and must therefore be 

proven circumstantially.” (People v. Thomas (2011) 52 Cal.4th 

336, 355.) “‘An appellate court must accept logical inferences 

that the jury might have drawn from the circumstantial 

evidence.’” (People v. Elliot (2005) 37 Cal.4th 453, 466.)

The prosecutor sought to prove Anderson was guilty of 

attempted murder by establishing Anderson fired a gun at 

Jackson.7 In the alternative, if the jury believed Anderson had 

not fired a gun that night, the prosecutor argued Anderson was 

guilty because he aided and abetted Prince in the attempted 

murder. Anderson contends there was not substantial evidence 

to support his conviction under either theory. Specifically as to 

whether there was evidence he was guilty as a direct perpetrator, 

Anderson argues there was no “independent evidence to establish 

an intent to kill” because “the evidence was unclear on which 

defendant fired the gun whose shots came close to or hit” 

Jackson. 

Reviewing the record in the light most favorable to the 

prosecution, ample evidence supports a finding Anderson fired a 

gun at Jackson with the intent to kill him. The evidence 

established Prince and Anderson were involved in an altercation 

with Jackson that resulted in Jackson being shot multiple times. 

Anderson admitted in police interviews and on telephone calls 

7 Attempted voluntary manslaughter is a lesser included 

offense of attempted murder “whenever the evidence is such that 

a jury could reasonably conclude that the defendant [attempted 

to kill] the victim in the unreasonable but good faith belief in 

having to act in self-defense.” (People v. Barton (1995) 12 Cal.4th 

186, 201; see discussion in section 2(b).)
16

from jail that he pointed a weapon at Jackson, although he 

denied the weapon was a firearm. The seven shell casings found 

at the scene had all been fired from the same semiautomatic 

handgun. Prince testified he had fired two shots at Jackson from 

a revolver, which the testifying firearms experts agreed would 

not have expended the recovered shell casings. If the jury 

believed Prince’s testimony, it was a reasonable inference the 

expended shell casings must have come from Anderson’s weapon. 

Even if the jury did not believe Prince and concluded he had fired 

the gun that ejected the shell casings, there was testimony from 

Prince’s video expert that there appeared to be smoke coming 

from the weapon in Anderson’s outstretched hand. There was 

also testimony from two firearms experts stating it was highly 

unlikely Prince could have fired seven shots in the time shown in 

the surveillance video. In addition, the jury repeatedly viewed 

the surveillance video of the shooting, from which they could 

evaluate Anderson’s actions. Based on this evidence, a 

reasonable trier of fact could find Anderson fired a gun at 

Jackson.

Anderson alternatively argues, even if he had fired a gun, 

there was no evidence a bullet he fired “came close to or hit” 

Jackson and there was no independent evidence to establish an 

intent to kill. This argument is without merit. “‘“[T]he act of 

firing toward a victim at a close, but not point blank, range ‘in a 

manner that could have inflicted a mortal wound had the bullet 

been on target is sufficient to support an inference of intent to 

kill.’”’” (People v. Perez (2010) 50 Cal.4th 222, 230 [intent to kill 

could be inferred where defendant fired a single shot at a group 

of eight people from a distance of 60 feet]; accord, People v. 

Villegas (2001) 92 Cal.App.4th 1217, 1225 [firing at least six 
17

shots from distance of approximately 25 feet indicated “clear 

intent to kill”].) Anderson’s decision to flee the scene while 

Jackson was still alive “does not compel the conclusion that he 

lacked the animus to kill in the first instance.” (People v. Lashley

(1991) 1 Cal.App.4th 938, 945.) “Nor does the fact that the victim 

may have escaped death because of the shooter’s poor 

marksmanship necessarily establish a less culpable state of 

mind.” (Ibid.; accord, People v. Cardenas (2020) 53 Cal.App.5th 

102, 120-121 [“[t]hat the bullets struck Chris and Juan in their 

feet and ankles similarly does not show that there was 

insufficient evidence of specific intent to kill them. . . . [A]

reasonable inference that could be drawn from that evidence is 

that Cardenas intended to shoot to kill both Chris and Juan but 

had poor aim”].)

c. There was substantial evidence to support a finding 

Anderson personally inflicted great bodily injury 

Section 12022.7, subdivision (a), provides a three-year 

sentence enhancement for “[a]ny person who personally inflicts 

great bodily injury on any person other than an accomplice in the 

commission of a felony or attempted felony . . . .” “Great bodily 

injury” is statutorily defined as “a significant or substantial 

physical injury.” (§ 12022.7, subd. (f); see CALCRIM No. 3160 

[“Great bodily injury means significant or substantial physical 

injury. It is an injury that is greater than minor or moderate 

harm”].) “A defendant ‘personally inflicts’ great bodily injury if 

he directly causes the injury—that is, if the defendant ‘himself’

‘actually inflicts the injury’ by ‘directly perform[ing] the act that 

causes the physical injury.’” (People v. Ollo (2019) 42 Cal.App.5th 

1152, 1156, review granted Mar. 18, 2020, S260130; accord, 

People v. Cardenas (2015) 239 Cal.App.4th 220, 228 [“‘for the 
18

[great bodily injury] enhancement to apply, the defendant must 

be the direct, rather than the proximate, cause of the victim’s 

injuries’”].)

Anderson argues there is insufficient evidence to support a 

finding he personally inflicted great bodily injury on Jackson 

because there was no evidence he actually fired a gun. However, 

as discussed, ample evidence supported the jury’s finding 

Anderson fired a gun at Jackson and, thus, that he personally 

inflicted great bodily injury. (See In re Sergio R. (1991) 

228 Cal.App.3d 588, 601-602 [“where, as here, more than one 

assailant discharges a firearm into a group of people and ‘it is not 

possible to determine which assailant inflicted which injuries, the 

defendant may be punished with a great bodily injury 

enhancement if his conduct was of a nature that it could have 

caused the great bodily injury suffered’”]; People v. Corona (1989) 

213 Cal.App.3d 589, 594; see also People v. Modiri (2006) 

39 Cal.4th 481, 498 [“a personal-infliction finding could 

nonetheless be made if defendant personally applied force to the 

victim, and such force was sufficient to produce grievous bodily 

harm either alone or in concert with others”].)

d. There was substantial evidence to support a finding 

Prince was an active participant in a criminal street 

gang on August 11, 2016 for purposes of section 25850, 

subdivision (c)(3)

Section 25850, subdivision (a), prohibits the carrying of a 

loaded firearm in public either on one’s person or in a vehicle. 

The offense is generally a misdemeanor but is elevated to a felony 

if the defendant “is an active participant in a criminal street 

gang, as defined in subdivision (a) of Section 186.22.” (§ 25850, 

subd. (c)(3).) Conviction of a felony violation of section 25850 
19

based on active participation in a criminal street gang “require[s] 

proof of each element ‘of the offense described in 

section 186.22(a). Those elements are “actively participat[ing] in 

any criminal street gang with knowledge that its members 

engage in or have engaged in a pattern of criminal gang activity”

and “willfully promot[ing], further[ing], or assist[ing] in any 

felonious criminal conduct by members of that gang.”’” (People v. 

Infante (2014) 58 Cal.4th 688, 692; accord, People v. Lamas

(2007) 42 Cal.4th 516, 519.) 

In establishing the defendant promoted, furthered or 

assisted in felonious criminal conduct by members of the gang, 

the prosecution must present evidence of “felonious criminal 

conduct that is distinct from [the] otherwise misdemeanor 

conduct of carrying a loaded firearm in public . . . .” (People v. 

Lamas, supra, 42 Cal.4th at p. 520.) In other words, the charged 

act of carrying a loaded firearm cannot be the predicate act upon 

which the finding of gang membership is based. (See People v. 

Infante, supra, 58 Cal.4th at pp. 693-694 [section 25850, 

subdivision (c), “requires proof that the charged gang participant 

willfully promoted, furthered, or assisted felonious conduct by 

fellow gang members before one may consider whether that 

provision applies to elevate to a felony what would otherwise be 

the misdemeanor act of unlawfully carrying a loaded firearm in 

public”].) However, the alleged felonious conduct need not have 

occurred in conjunction with or at the same time as the charged 

firearm offense. (See People v. Schoppe-Rico (2006) 

140 Cal.App.4th 1370, 1381 [“the Legislature intended the street 

gang firearms statutes to make it possible to convict active gang 

members of a felony whenever they are found in possession of a 

loaded or concealed firearm, even when the prosecution cannot 
20

establish any temporal or causal connection between the firearm 

possession and gang activity”]; see also People v. Robles (2000) 

23 Cal.4th 1106, 1114 [“it is entirely plausible that the 

Legislature may have enacted section 12031(a)(2)(C) [now 

section 25850, subd. (c)(3)] to cover a situation not subject to 

felony punishment under section 186.22(a): when the person 

carrying the loaded firearm at some other time committed a 

violation of section 186.22(a)”].)

Prince argues insufficient evidence supported the finding 

he was an active participant in a criminal street gang at the time 

of his arrest on August 11, 2016 and, therefore, he could not be 

convicted of a felony violation of section 25850 on count 6.

8 

Prince does not argue he was not a member of a criminal street 

gang on August 11, 2016, nor does he argue he did not have 

knowledge members of the gang engaged in a pattern of criminal 

activity.9 He argues only that there was insufficient evidence he 

willfully promoted, furthered or assisted in felonious criminal 

activity because “there is no evidence that appellant acted other 

than alone when guns and ammunition he owned were found in 

the [car] parked outside of his apartment on August 11, 2016.” 

8 Prince does not challenge the jury’s finding he was an 

active member of a criminal street gang at the time of the 

shooting for purposes of section 25850 (count 2), nor does he 

challenge the findings he acted for the benefit of a criminal street 

gang on counts 2, 3, 6 and 7. 

9 Prince stipulated at trial that he was an active member of a 

criminal street gang on August 30, 2015. When asked during 

cross-examination whether he was “still an active member of the 

gang” on August 11, 2016, Prince responded, “Yes, sir.” 
21

Contrary to Prince’s argument, there is no requirement the 

defendant act in concert with other gang members at the time of 

his or her arrest for carrying a loaded firearm in order for the 

offense to be elevated to a felony. Prince appears to be relying on 

a misapprehension of the Supreme Court’s statement in People v. 

Rodriguez (2012) 55 Cal.4th 1125, in which the Court held a 

conviction for the substantive offense of participation in a 

criminal street gang (§ 186.22, subd. (a)) “requires that felonious 

criminal conduct be committed by at least two gang members.” 

(Rodriguez, at p. 1148.) Here, however, Prince was not convicted 

of the substantive offense of participation in a criminal street 

gang. As discussed, elevation of a section 25850 violation based 

on gang membership requires the elements of section 186.22, 

subdivision (a), be satisfied by conduct that took place separately 

from, and not necessarily at the same time as, the firearm 

offense. (See People v. Infante, supra, 58 Cal.4th at pp. 693-694;

People v. Schoppe-Rico, supra, 140 Cal.App.4th at p. 1381.) 

Accordingly, whether Prince acted alone when carrying the 

loaded firearms is of no moment. There was sufficient evidence 

Prince had assisted in felonious criminal conduct by members of 

the gang prior to August 2016, including the jury’s finding Prince 

was an active gang member pursuant to section 186.22, 

subdivision (a), in August 2015 for purposes of count 2, a finding 

Prince does not challenge on appeal, and the finding Prince and 

another gang member (Anderson) had committed attempted 

voluntary manslaughter on August 30, 2015, as charged in

count 1.
22

2. The Trial Court Did Not Commit Instructional Error

a. Standard of review

A trial court in a criminal case has a duty to instruct on 

general principles of law applicable to the case (People v. Young 

(2005) 34 Cal.4th 1149, 1200), that is, “‘“‘those principles closely 

and openly connected with the facts before the court, and which 

are necessary for the jury’s understanding of the case.’”’” (People 

v. Valdez (2004) 32 Cal.4th 73, 115.) This obligation includes the 

sua sponte duty to instruct the jury on the definition of the 

substantive offenses charged and the elements of any applicable 

sentencing factors alleged. (See People v. Sengpadychith (2001) 

26 Cal.4th 316, 327; People v. Robles, supra, 23 Cal.4th at 

p. 1115; see also CALCRIM Nos. 2540-2546; see generally

Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 

147 L.Ed.2d 435] [“[o]ther than the fact of a prior conviction, any 

fact that increases the penalty of a crime beyond the prescribed 

statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt”].) The court also must instruct the 

jury on a lesser included offense if the evidence raises a question 

as to whether the elements of the lesser-included offense are 

present. (Valdez, at p. 115; People v. Breverman (1998) 

19 Cal.4th 142, 154.) Likewise, a trial court must instruct on an 

asserted defense, including self-defense, if there is sufficient 

evidence from which a reasonable juror could find the defense 

applicable. (People v. Koontz (2002) 27 Cal.4th 1041, 1046; 

Breverman, at p. 154.) A court may, however, “‘properly refuse 

an instruction offered by the defendant if it incorrectly states the 

law, is argumentative, duplicative, or potentially confusing 

[citation], or if it is not supported by substantial evidence.’” 

(People v. Burney (2009) 47 Cal.4th 203, 246.) 
23

We review defendants’ claims of instructional error 

de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) “In 

assessing a claim of instructional error, ‘we must view a 

challenged portion “in the context of the instructions as a whole 

and the trial record” to determine “‘whether there is a reasonable 

likelihood that the jury has applied the challenged instruction in 

a way’ that violates the Constitution.”’” (People v. Jablonski

(2006) 37 Cal.4th 774, 831.) Failure to instruct the jury on an 

element of an offense or sentencing factor “is reversible under 

[Chapman v. California (1967) 386 U.S. 18, 24], unless it can be 

shown ‘beyond a reasonable doubt’ that the error did not 

contribute to the jury’s verdict.” (People v. Sengpadychith, supra, 

26 Cal.4th at p. 326; accord, People v. Merritt (2017) 2 Cal.5th 

819, 827.) In other words, the harmless error inquiry regarding 

an element omitted from the jury instructions requires the 

reviewing court to determine if it is clear beyond a reasonable 

doubt a rational jury would have found the defendant guilty 

absent the error. (Merritt, at p. 827; see People v. Gonzalez

(2012) 54 Cal.4th 643, 666 [“[w]e have exhaustively reviewed the 

trial evidence to determine ‘whether the record contains evidence 

that could rationally lead to a contrary finding with respect to the 

omitted element’”]; People v. Mil (2012) 53 Cal.4th 400, 417 

[“[o]ur task, then, is to determine ‘whether the record contains 

evidence that could rationally lead to a contrary finding with 

respect to the omitted element’”].)

b. The trial court properly instructed on self-defense

Self-defense, when based on a reasonable belief that killing 

is necessary to avert an imminent threat of death or great bodily 

injury, is a complete justification for homicide; such a killing is 

not a crime. (§ 197, subd. (3); People v. Elmore (2014) 59 Cal.4th
24

121, 133-134.) When the defendant kills under an actual but 

unreasonable belief in the necessity to use deadly force to defend 

against imminent peril to life or great bodily injury, the conduct, 

while not justifiable, reduces a homicide from murder to 

voluntary manslaughter. (Elmore, at p. 134; see People v. Barton

(1995) 12 Cal.4th 186, 199.) Accordingly, “when a defendant is 

charged with murder the trial court’s duty to instruct 

sua sponte . . . on unreasonable [i.e., imperfect] self-defense is the 

same as its duty to instruct on any other lesser included offense: 

this duty arises whenever the evidence is such that a jury could 

reasonably conclude that the defendant killed the victim in the 

unreasonable but good faith belief in having to act in selfdefense.” (Barton, at p. 201.)

Prince and Anderson contend the trial court erred by 

failing to instruct the jury on complete self-defense with 

CALCRIM No. 505,

10 and, absent that instruction, “the jury 

could not have known that appellant[s] should be acquitted if the 

10 CALCRIM No. 505 states: “The defendant is not guilty of 

(murder/ [or] manslaughter/attempted murder/ [or] attempted 

voluntary manslaughter) if (he/she) was justified in 

(killing/attempting to kill) someone in (self-defense/ [or] defense 

of another). The defendant acted in lawful (self-defense/ [or] 

defense of another) if: [¶] 1. The defendant reasonably believed 

that (he/she/ [or] someone else/ [or] <insert name or description of 

third party>) was in imminent danger of being killed or suffering 

great bodily injury [or was in imminent danger of being 

(raped/maimed/robbed/ <insert other forcible and atrocious 

crime>)]; [¶] 2. The defendant reasonably believed that the 

immediate use of deadly force was necessary to defend against 

that danger; [¶] AND [¶] 3. The defendant used no more force 

than was reasonably necessary to defend against that danger.” 
25

jury found that [they] acted in [complete] self-defense.”11 This

position ignores the trial court’s instruction with CALCRIM 

No. 604 regarding imperfect self-defense, which included the 

instruction that, “If you conclude the defendant acted in complete 

self-defense, his action was lawful and you must find him not 

guilty of any crime. The difference between complete self-defense 

and imperfect self-defense depends on whether the defendant’s 

belief in the need to use deadly force was reasonable.”12 

11 Anderson’s opening brief on appeal included a statement 

that the trial court erred in failing to instruct the jury with 

CALCRIM No. 3471 (mutual combat/initial aggressor selfdefense). However, his opening brief does not contain argument 

or support for this position. The issue therefore has been

forfeited. (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360(a); see 

Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277; 

People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12.)

12 As given, CALCRIM No. 604 states, in part: “An attempted 

killing that would otherwise be attempted murder is reduced to 

attempted voluntary manslaughter if the defendant attempted to 

kill a person because he acted in imperfect self-defense. [¶] If 

you conclude the defendant acted in complete self-defense, his 

action was lawful and you must find him not guilty of any crime. 

The difference between complete self-defense and imperfect selfdefense depends on whether the defendant’s belief in the need to 

use deadly force was reasonable. [¶] The defendant acted in 

imperfect self-defense if: [¶] 1. The defendant took at least one 

direct but ineffective step toward killing a person. [¶] 2. The 

defendant intended to kill when he acted. [¶] 3. The defendant 

believed that he was in imminent danger of being killed or 

suffering great bodily injury. AND [¶] 4. The defendant believed 

that the immediate use of deadly force was necessary to defend 
26

In his reply brief Prince argues this language was 

insufficient to instruct the jury on complete self-defense because 

it gave “the jury no guidance on how to evaluate what is or is not 

reasonable.” Prince maintains the language in CALCRIM 

No. 604 on this point (“[i]n evaluating the defendant’s beliefs, 

consider all the circumstances as they were known and appeared 

to the defendant”) was not sufficient because it was not as 

complete as the language of CALCRIM No. 505 (“[w]hen deciding 

whether the defendant’s beliefs were reasonable, consider all the 

circumstances as they were known to and appeared to the 

defendant and consider what a reasonable person in a similar 

situation with similar knowledge would have believed”). 

While CALCRIM No. 505 contains additional clarification 

of complete self-defense, the unambiguous language in No. 604 

adequately instructed the jury it must find Prince and Anderson 

not guilty of attempted murder and attempted voluntary 

manslaughter if their belief in the need to defend themselves 

from imminent danger was reasonable. In addition, neither 

Prince nor Anderson has asserted the self-defense instruction 

given was incorrect or misleading. Because any additional 

instruction would have been duplicative, there was no error in 

the court’s failure to instruct with No. 505. (See People v. Moon

(2005) 37 Cal.4th 1, 32 [failure to give requested instruction not 

error because “it was duplicative of the instructions the court 

gave the jury”]; see also People v. Cordero (1989) 216 Cal.App.3d 

275, 279 [failure to give instruction on imperfect self-defense not 

error because other instructions explained there was no malice 

against the danger. BUT [¶] 5. At least one of the defendant’s 

beliefs was unreasonable.”
27

aforethought if defendant had honest but unreasonable belief in 

necessity to defend himself].)

c. Any error in failing to instruct the jury on the 

definition of “felonious criminal conduct” on count 6 

was harmless

The court instructed the jury on count 6 (carrying a loaded 

firearm as an active gang member on August 11, 2016) with the 

elements of section 25850, subdivision (a), (CALCRIM No. 2530) 

and the elements of the gang participant sentencing factor of 

subdivision (c)(3) (CALCRIM No. 2542). As given, CALCRIM 

No. 2542 instructed that, to find Prince was an active member in 

a criminal street gang for purposes of section 25850, 

subdivision (c)(3), the prosecution must prove Prince was an 

active member in a gang at the time of the offense, he knew 

members of the gang engaged in a pattern of criminal activity 

and he “willfully assisted, furthered or promoted felonious 

criminal conduct by members of the gang either by: (a) directly 

and actively committing a felony offense; or, (b) aiding and 

abetting a felony offense. At least two members of that same 

gang must have participated in committing the felony offense. 

The defendant may count as one of those members if you find 

that the defendant was a member of the gang.” The court did not 

include the portion of the pattern instruction defining “felonious 

criminal conduct,” enumerating the specific felony offenses the 

gang members were alleged to have committed and explaining 

the elements of “aiding and abetting” liability.

13

13 The portion of CALCRIM No. 2542 Prince argues should 

have been included states: “Felonious criminal conduct means 

committing or attempting to commit [any of] the following 
28

Prince contends these omissions constituted prejudicial 

instructional error by “reliev[ing] the prosecution of the burden of 

proving beyond a reasonable doubt each element of the charged 

offense in violation of appellant’s rights under both the United 

States and California Constitutions.”14 We need not determine 

whether the instruction as given adequately protected Prince’s 

right to have the elements of the sentencing factor submitted to 

the jury because any error in failing to instruct the jury was 

harmless beyond a reasonable doubt.

crime[s]: <insert felony or felonies by gang members that the 

defendant is alleged to have furthered, assisted, or promoted>. [¶] 

To decide whether a member of the gang [or the defendant] 

committed <insert felony or felonies listed immediately above and 

crimes from Pen. Code, § 186.22(e)(1)-(33) inserted in definition of 

pattern of criminal gang activity>, please refer to the separate 

instructions that I (will give/have given) you on (that/those) 

crime[s]. [¶] To prove that the defendant aided and abetted 

felonious criminal conduct by a member of the gang, the People 

must prove that: [¶] 1. A member of the gang committed the 

crime; [¶] 2. The defendant knew that the gang member intended 

to commit the crime; [¶] 3. Before or during the commission of the 

crime, the defendant intended to aid and abet the gang member 

in committing the crime; [¶] AND [¶] 4. The defendant’s words or 

conduct did in fact aid and abet the commission of the crime. [¶] 

Someone aids and abets a crime if he or she knows of the 

perpetrator's unlawful purpose and he or she specifically intends 

to, and does in fact, aid, facilitate, promote, encourage, or 

instigate the perpetrator's commission of that crime.”

14 The trial court instructed the jury on count 2 with the 

identical version of CALCRIM No. 2542. Prince does not 

challenge the instruction as to that count.
29

As discussed, a true finding under section 25850, 

subdivision (c)(3), required the jury to find Prince had willfully 

assisted, furthered or promoted felonious criminal conduct by 

members of the gang either by directly committing a felony 

offense or aiding and abetting a felony offense. The jury was also 

required to find that at least two members of the same gang must 

have participated in committing the predicate felony offense. 

While the jury was not specifically instructed on the underlying 

felony the prosecution alleged Prince had directly committed or 

aided and abetted, the jury separately found Prince and 

Anderson committed attempted voluntary manslaughter in 2015. 

In addition, the jury’s true finding as to the gang sentencing 

factor on count 2 necessarily included a finding Prince had 

willfully assisted, furthered or promoted felonious criminal 

conduct. Given these findings, a properly instructed, rational 

jury could not have reached a different conclusion than that 

Prince assisted, furthered or promoted felonious criminal conduct 

prior to August 30, 2015. Any error was harmless beyond a 

reasonable doubt.

3. The Trial Court Did Not Err in Precluding Testimony 

Regarding Statements by Radele Blackburn

a. Relevant proceedings

Prior to trial Prince stated he intended to call Radele 

Blackburn to testify as a percipient witness. In November 2018, 

while in custody on an unrelated matter, Blackburn told Prince’s

investigator he had been present at the shooting on August 30, 

2015. Blackburn said he had arranged to meet Jackson at the 

liquor store that night to sell him marijuana. While outside the 

store, Blackburn saw Jackson approach Prince and Anderson and 

ask where they were from. Jackson then repeatedly yelled at 
30

Prince and Anderson to give him their money. According to 

Blackburn, Jackson was very aggressive and had his hand in his 

pocket in such a way that Blackburn thought Jackson might have 

a gun. Blackburn did not want to get involved, so he walked 

away. He heard shooting but did not see who had fired the shots. 

Blackburn also told the investigator Jackson was “known for 

carrying guns and robbing people.” Prince argued Blackburn’s

testimony would impeach Jackson by establishing Jackson was a 

drug user and would bolster Prince’s account Jackson had acted 

aggressively prior to the shooting. 

At the time of trial in January 2019, Blackburn was in 

custody awaiting his own trial on three felony charges to which 

he had pleaded not guilty by reason of insanity. He was also a 

person of interest in an unsolved homicide and had multiple prior 

convictions, including crimes of moral turpitude. Blackburn was 

believed to be a member of a Crips-affiliated criminal street gang. 

Blackburn took the witness stand outside the presence of 

the jury and invoked his Fifth Amendment privilege against selfincrimination, stating he would do so for all questions. Counsel 

representing Blackburn informed the court he had advised 

Blackburn to assert the privilege. The trial court accepted 

Blackburn’s assertion of the privilege and denied Prince’s motion, 

in which Anderson joined, to compel the prosecutor to grant use 

immunity or to grant judicial immunity to Blackburn. 

Prince then requested the defense investigator be 

permitted to testify pursuant to Evidence Code section 1230 

about Blackburn’s November 2018 statement. Anderson joined 

the request. The prosecutor argued the statement was not

reliable, citing Blackburn’s history of felony convictions and the 

fact he and both defendants were all members of Crips-associated 
31

gangs. The prosecutor also informed the court Blackburn had 

been in custody with Prince and Anderson in March 2018 and 

October 2018 and argued this contact, the latter only a few weeks 

before Blackburn’s statement to the investigator, suggested the 

defendants may have pressured Blackburn to make a statement 

and coached him on what to say.

The trial court denied Prince’s motion to allow the 

investigator to testify, finding it was duplicative and not 

probative: There was other evidence placing the defendants at 

the scene; Jackson had admitted being there to purchase drugs;

and Jackson had stated it was a possibility he had been the 

initial aggressor. The court also found the testimony unreliable 

given Blackburn’s criminal history, his gang association and his 

prior contact with Prince and Anderson. 

b. Governing law and standard of review

Evidence Code section 1230 provides, “Evidence of a 

statement by a declarant having sufficient knowledge of the 

subject is not made inadmissible by the hearsay rule if the 

declarant is unavailable as a witness and the statement, when 

made, was so far contrary to the declarant’s pecuniary or 

propriety interest, or so far subjected him to the risk of civil or 

criminal liability . . . that a reasonable man in his position would 

not have made the statement unless he believed it to be true.” 

“‘The proponent of such [hearsay] evidence must show that the

declarant is unavailable, that the declaration was against the 

declarant’s penal interest when made and that the declaration 

was sufficiently reliable to warrant admission despite its hearsay 

character.’” (People v. Grimes (2016) 1 Cal.5th 698, 741 (Grimes); 

accord, People v. Duarte (2000) 24 Cal.4th 603, 610-612.)
32

“The against-interest exception to the hearsay rule is 

‘inapplicable to evidence of any statement or portion of a 

statement not itself specifically disserving to the interests of the 

declarant’ [citations], and ‘a declaration against penal interest 

must be “distinctly” against the declarant’s penal interest’ 

[citations]. Whether or not a statement is against penal interest 

can be determined only by considering ‘the statement in context.’”

(Grimes, supra, 1 Cal.5th at p. 741; accord, People v. Duarte, 

supra, 24 Cal.4th at pp. 610-612.) Accordingly, Evidence Code 

section 1230 does not authorize the admission “of non-selfinculpatory statements . . . made within a broader narrative that 

is generally self-inculpatory.” (Williamson v. United States

(1994) 512 U.S. 594, 600-601, [114 S.Ct. 2431, 129 L.Ed.2d 476]; 

see Grimes, at p. 715 [citing with approval Williamson’s

interpretation of the “analogous exception to the federal hearsay 

rule”].)

A trial court’s decision whether a statement is admissible 

under Evidence Code section 1230 is reviewed for abuse of 

discretion. (Grimes, supra, 1 Cal.5th at pp. 711-712; People v. 

Lawley (2002) 27 Cal.4th 102, 153.)

c. The trial court did not abuse its discretion in 

excluding the investigator’s testimony

By invoking his Fifth Amendment privilege not to 

incriminate himself, Blackburn was, for purposes of the hearsay 

rule, unavailable as a witness. (Evid. Code, § 240, subd. (a)(1); 

People v. Cudjo (1993) 6 Cal.4th 585, 606-607.) However, the 

majority of Blackburn’s statement to the investigator was not 

“specifically disserving” of Blackburn’s penal interest. (Grimes, 

supra, 1 Cal.5th at p. 741.) There was no evidence Blackburn’s 

statements regarding what he saw or his knowledge of Jackson’s 
33

reputation had any bearing on Blackburn’s culpability in any 

ongoing case or investigation. Nor was there any explanation of 

how those statements could subject him to criminal liability. 

Further, his account of the shooting and Jackson’s reputation 

was not inextricably tied to a statement against penal interest 

such that it fell within the Evidence Code section 1230 hearsay 

exception. (See Grimes, at p. 716 [non-inculpatory portions of 

statement may be admissible under Evidence Code section 1230 

when “‘inextricably tied to and part of a specific statement 

against penal interest’”].) Accordingly, those aspects of 

Blackburn’s statement were not admissible.

Blackburn’s statement to the investigator that he was at 

the liquor store to sell marijuana to Jackson arguably fell within 

the scope of Evidence Code section 1230. Although Anderson 

contends this testimony was crucial to undermine Jackson’s 

credibility as a witness, Jackson admitted he was at the liquor 

store that night to buy marijuana. The trial court was well 

within its discretion to exclude Blackburn’s confirmation of that 

fact as unnecessary and duplicative. 

4. The Trial Court Did Not Abuse Its Discretion by 

Admitting David Kim’s Expert Testimony

“A person is qualified to testify as an expert if he has 

special knowledge, skill, experience, training, or education 

sufficient to qualify him as an expert on the subject to which his 

testimony relates.” (Evid. Code, § 720, subd. (a); see Brown v. 

Colm (1974) 11 Cal.3d 639, 645 [expert is qualified if he or she 

“has sufficient skill or experience in the field so that his [or her] 

testimony would be likely to assist the jury in the search for the 

truth”].) Evidence Code section 801, governing the admissibility 

of expert testimony provides, “If a witness is testifying as an 
34

expert, his testimony in the form of an opinion is limited to such 

an opinion as is: [¶] (a) Related to a subject that is sufficiently 

beyond common experience that the opinion of an expert would 

assist the trier of fact; and [¶] (b) Based on matter (including his 

special knowledge, skill, experience, training, and education) 

perceived by or personally known to the witness or made known 

to him at or before the hearing, whether or not admissible, that is 

of a type that reasonably may be relied upon by an expert in 

forming an opinion upon the subject to which his testimony 

relates, unless an expert is precluded by law from using such 

matter as a basis for his opinion.”

“The trial court’s determination of whether a witness 

qualifies as an expert is a matter of discretion and will not be 

disturbed absent a showing of manifest abuse.” (People v. Bolin

(1998) 18 Cal.4th 297, 321-322; accord, Sargon Enterprises, Inc. 

v. University of Southern California (2012) 55 Cal.4th 747, 773 

[“[e]xcept to the extent the trial court bases its ruling on a 

conclusion of law (which we review de novo), we review its ruling 

excluding or admitting expert testimony for abuse of discretion”]; 

People v. Robinson (2005) 37 Cal.4th 592, 630 [“trial court’s 

determination to admit expert evidence will not be disturbed on 

appeal absent a showing that the court abused its discretion in a 

manner that resulted in a miscarriage of justice”].) “Error 

regarding a witness’s qualifications as an expert will be found 

only if the evidence shows that the witness ‘“‘clearly lacks

qualification as an expert.’”’” (People v. Farnam (2002) 

28 Cal.4th 107, 162.) “‘“‘Where a witness has disclosed sufficient 

knowledge of the subject to entitle his opinion to go to the jury, 

the question of the degree of his knowledge goes more to the 
35

weight of the evidence than to its admissibility.’”’” (People v. 

Nelson (2016) 1 Cal.5th 513, 536.) 

“As with expert qualifications, we review trial court 

decisions about the admissibility of evidence for abuse of 

discretion. Specifically, we will not disturb a trial court’s 

admissibility ruling ‘“except on a showing the trial court 

exercised its discretion in an arbitrary, capricious, or patently 

absurd manner that resulted in a manifest miscarriage of 

justice.”’” (People v. Morales (2020) 10 Cal.5th 76, 97.)

As discussed, David Kim testified that, in his opinion, the 

seven shell casings found at the scene were not fired by Prince. 

His opinion was primarily based on three observations: Due to 

the intensity of the muzzle flash in the video, Kim concluded 

Prince had fired a revolver, which would not have ejected shell 

casings; Kim did not believe Prince could have fired seven shots 

in the short period he was seen shooting in the video; and, even if 

Prince had been firing a weapon that ejected shell casings, based 

on where Prince had been standing in the video, the shell casings 

would have landed in different positions than where they were

found. Anderson’s counsel objected that this testimony lacked 

foundation and was speculative. The objections were overruled. 

Anderson challenges that ruling on appeal.15

15 Anderson also argues for the first time on appeal that 

Kim’s testimony should have been excluded pursuant to Evidence 

Code section 352 because its probative value was substantially 

outweighed by the danger of undue prejudice. Anderson forfeited 

any abuse-of-discretion claim under section 352 by failing to 

object on this ground in the trial court. (Evid. Code, § 353, 

subd. (a); see People v. Abel (2012) 53 Cal.4th 891, 924 [“‘[a] party 

cannot argue the court erred in failing to conduct an analysis it 
36

The trial court did not abuse its broad discretion in 

permitting Kim’s opinion evidence. Kim testified he had recently 

retired from the Los Angeles County Sheriff’s Department where 

he had been a firearms instructor for more than four years and 

then a forensic firearms examiner for 15 years. He had attended 

several tactical and firearms trainings, as well as three years of 

firearms-examiner training. He was also a “certified armorer 

gunsmith.” During his career Kim had conducted more than 

150 crime scene investigations, and he continued to teach crime 

scene investigation and evidence handling at the Sheriff’s 

academy after his retirement. In preparation for his testimony in 

this case, Kim stated he had reviewed the crime scene reports, 

surveillance videos, ballistic reports and video recordings and 

photographs of the scene taken by deputy sheriffs the night of the 

shooting and had visited the crime scene. Kim prepared a 

diagram showing the locations of each recovered shell casing 

based on his review of this evidence. During his testimony Kim 

explained how the evidence he reviewed supported his conclusion 

Prince had not fired the shots producing the seven shell casings. 

On this record the trial court did not err in finding Kim’s opinions 

had an adequate foundation and were based on his training and 

experience. (See People v. Morales, supra, 10 Cal.5th at p. 100 

[expert’s opinions did not lack foundation when based on trial 

evidence, training and experience]; People v. Robinson (2005) 

37 Cal.4th 592, 631-632 [same].)

was not asked to conduct’”].) His objection to the testimony on 

other grounds was insufficient to preserve this issue for appeal. 

(See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 

412-413.) 
37

Anderson’s arguments that Kim’s opinions lacked 

foundation because he did not take his own measurements at the 

crime scene, his opinion on the location of the shell casings was 

only an approximation and he could not determine precisely from 

the video when Jackson had first been shot go to the weight of 

Kim’s testimony, not its admissibility, and are thus matters for

the jury. (People v. Morales, supra, 10 Cal.5th at p. 101 

[weaknesses in expert’s testimony, including that he did not 

examine evidence first hand and did not use actual weapons in 

recreation, “go to the weight to be given the evidence, not its 

admissibility”]; see also People v. Dennis (1998) 17 Cal.4th 468, 

519 [expert may be impeached by cross-examination or by 

showing error in data upon which opinion is based]; People v. 

Stoll (1989) 49 Cal.3d 1136, 1159 [issues regarding expert’s 

methodology are subject of cross-examination].)

5. Anderson Forfeited His Prosecutorial Misconduct 

Arguments and Has Not Established Ineffective 

Assistance of Counsel

a. Governing law and standard of review

“‘“A prosecutor’s conduct violates the Fourteenth 

Amendment to the federal Constitution when it infects the trial 

with such unfairness as to make the conviction a denial of due 

process. Conduct by a prosecutor that does not render a criminal 

trial fundamentally unfair is prosecutorial misconduct under 

state law only if it involves the use of deceptive or reprehensible 

methods to attempt to persuade either the trial court or the 

jury.”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332; 

accord, People v. Cortez (2016) 63 Cal.4th 101, 130.) Bad faith by

the prosecutor is not required. (People v. Hill (1998) 17 Cal.4th 

800, 821.) In this regard, “‘[t]he term prosecutorial “misconduct” 
38

is somewhat of a misnomer to the extent that it suggests a 

prosecutor must act with a culpable state of mind. A more apt 

description of the transgression is prosecutorial error.’” (People v. 

Centeno (2014) 60 Cal.4th 659, 666-667 (Centeno); see People v. 

Sandoval (2015) 62 Cal.4th 394, 438.)

It is misconduct to misstate the facts or refer to facts not in 

evidence. (People v. Linton (2013) 56 Cal.4th 1146, 1207; People 

v. Ellison (2011) 196 Cal.App.4th 1342, 1353.) Nevertheless, a

prosecutor enjoys wide latitude in commenting on the evidence, 

including identifying reasonable inferences derived from the 

evidence. (See People v. Edwards (2013) 57 Cal.4th 658, 736 [“[a] 

prosecutor’s ‘argument may be vigorous as long as it is a fair 

comment on the evidence, which can include reasonable 

inferences or deductions to be drawn therefrom’”]; People v. Hill, 

supra, 17 Cal.4th at p. 823 [same].) 

It is also prosecutorial misconduct to misstate the 

applicable law. (People v. Gray (2005) 37 Cal.4th 168, 217.) As 

with any other claim of prosecutorial misconduct, however, “[a] 

prosecutor’s misstatements of law are generally curable by an 

admonition from the court.” (Centeno, supra, 60 Cal.4th at 

p. 674.) The failure to object and request an admonition forfeits 

the issue unless “the prosecutor’s argument [was] so extreme or 

pervasive that a prompt objection and admonition would not have 

cured the harm.” (Ibid.; accord, People v. Charles (2015) 

61 Cal.4th 308, 327 [“‘“[t]o preserve a claim of prosecutorial 

misconduct for appeal, a defendant must make a timely and 

specific objection and ask the trial court to admonish the jury to 

disregard the improper argument”’”].)

When the issue has been preserved, we review a trial 

court’s ruling regarding prosecutorial misconduct for abuse of 
39

discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) A 

defendant’s conviction will not be reversed for prosecutorial 

misconduct that violates state law “‘unless it is reasonably 

probable that a result more favorable to the defendant would 

have been reached without the misconduct.’” (People v. Wallace

(2008) 44 Cal.4th 1032, 1070-1071; accord, People v. Lloyd (2015) 

236 Cal.App.4th 49, 60-61.)

b. Anderson’s argument based on the prosecutor’s 

mischaracterization of the law has been forfeited; he 

has not established ineffective assistance of counsel

During his opening statement the prosecutor explained the 

People’s case relied partially on a theory Anderson was guilty of 

attempted murder as an aider and abettor. The prosecutor 

stated, “A person is equally guilty of the crime, whether he 

committed it personally or aided and abetted the perpetrator who 

committed it. . . .” “[T]hey’re both equally in violation of the law.” 

The objection of Anderson’s counsel was sustained, and the 

statement stricken. The prosecutor then stated, “An aider and 

abett[or] is as equally responsible as the person who attempts to 

kill.” Neither defendant’s counsel objected. 

During his closing argument the prosecutor again stated 

Anderson, if found to be an aider and abettor, was “equally 

guilty,” “equally in violation of the law” and “just as responsible 

as the person who attempts to kill.” Neither defendant’s counsel 

objected.

Anderson argues the prosecutor misstated the law of aider 

and abettor liability because an aider and abettor is not 

necessarily as equally culpable as the direct perpetrator. Other 

than the sustained objection during the prosecutor’s opening 

statement, however, Anderson did not object to any of the 
40

statements he now identifies as a mischaracterization of the law. 

Accordingly, he has forfeited that argument. (People v. Charles, 

supra, 61 Cal.4th at p. 327; People v. Williams (2013) 58 Cal.4th 

197, 274.)

Acknowledging the argument has been forfeited, Anderson 

contends his trial counsel was ineffective in not objecting to the 

prosecutor’s remarks. “‘A defendant whose counsel did not object 

at trial to alleged prosecutorial misconduct can argue on appeal 

that counsel’s inaction violated the defendant’s constitutional 

right to the effective assistance of counsel.’” (Centeno, supra, 

60 Cal.4th at p. 674; accord, People v. Lopez (2008) 42 Cal.4th 

960, 966.) To prevail on his claim of ineffective assistance of 

counsel, Anderson must demonstrate his counsel’s performance 

was deficient because it fell below an objective standard of 

reasonableness under prevailing professional norms and, because 

of those deficiencies, there exists a “reasonable probability that, 

but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” (Strickland v. 

Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 80 L.Ed.2d 

674]; accord, Centeno, at pp. 674, 676.)

“‘Unless a defendant establishes the contrary, we shall 

presume that “counsel’s performance fell within the wide range of 

professional competence and that counsel’s actions and inactions 

can be explained as a matter of sound trial strategy.”’ When the 

record on direct appeal sheds no light on why counsel failed to act 

in the manner challenged, defendant must show that there was 

‘“‘no conceivable tactical purpose’” for counsel’s act or omission.’ 

‘[T]he decision facing counsel in the midst of trial over whether to 

object to comments made by the prosecutor in closing argument is 

a highly tactical one . . .[,’ and] ‘a mere failure to object to 
41

evidence or argument seldom establishes counsel’s 

incompetence.’” (Centeno, supra, 60 Cal.4th at pp. 674-675, 

citations omitted; accord, People v. Jackson (2016) 1 Cal.5th 269, 

349.)

Here, the prosecutor’s statements an aider and abettor is as 

equally guilty as the direct perpetrator is “generally correct in all 

but the most exceptional circumstances.” (People v. Samaniego

(2009) 172 Cal.App.4th 1148, 1165; accord, People v. Loza (2012) 

207 Cal.App.4th 332, 349 [“‘[g]enerally, a person who is found to 

have aided another person to commit a crime is “equally guilty” of 

that crime’”].) To the extent the statement may be misleading in 

certain circumstances (see Samaniego, at pp. 1164-1165), it is 

entirely possible counsel elected not to object to expedite 

argument and avoid continued emphasis on the suggestion 

Anderson was guilty by association with Prince. In fact, in his 

opening brief, Anderson acknowledges counsel may have failed to 

object for this very reason, stating, “[A]n additional objection 

would have had the opposite effect, calling the jury’s attention to 

the very thing the defense would not have wanted—jurors relying 

on their finding Prince was guilty to convict [Anderson].” On this 

record, which is silent on counsel’s reasons for not objecting, we 

cannot say there was no conceivable tactical reason for counsel’s 

failure to object to the remarks Anderson now challenges on 

appeal. 

c. The prosecutor did not engage in prejudicial 

misconduct when discussing the surveillance video 

during his opening statement

During his opening statement the prosecutor played the 

surveillance video for the jury. While doing so, he described what 

was occurring in the video. For example, he stated, “The 
42

evidence will show in the upper left hand corner of the frame 

there’s a person in a white T-shirt standing on Kingtree Avenue 

as Mr. Prince and Mr. Anderson exit the store. The evidence will 

show that they go down the sidewalk and then they turned back 

towards the person in the street in the upper left hand corner in 

the white T-shirt. Suddenly Anderson goes forward and Prince 

follows.” Defense counsel objected a number of times while the 

prosecutor was discussing the video; most of the objections were 

overruled. 

When the prosecutor concluded his opening statement,

Anderson’s counsel moved for a mistrial based on prosecutorial 

misconduct, arguing the opening was “so rife with [the 

prosecutor’s] opinion and his testimony I don’t think it can be 

cleaned up.” The trial court denied the motion, explaining, 

“[T]here were a few times where [the prosecutor] did become a bit 

argumentative in his describing what he believes the evidence 

will show. When that was raised he correctly adhered to what is 

considered to be opening statement. . . . I do not believe that his 

opening statement rises to the level of prosecutorial misconduct.” 

The court noted it had already admonished the jury regarding the 

role and purpose of opening statements and asked counsel if they 

wished to have the jury admonished again.16 Counsel declined.

16 Immediately prior to the prosecutor’s opening statement 

the trial court informed the jury, “It is now time for the attorneys 

to give their opening statements if they choose to do so. 

Remember what they say is not evidence in this case, it is merely 

an outline of what they expect the evidence in this case to show.” 

Again during Prince’s counsel’s opening statement the jury was 

admonished, “Everything at this point is a statement of what 

each attorney expects the evidence to show.” 
43

The trial court did not err in ruling the prosecutor’s 

remarks did not constitute prosecutorial misconduct. “The 

purpose of the opening statement ‘“is to prepare the minds of the 

jury to follow the evidence and to more readily discern its 

materiality, force and effect.”’” (People v. Fauber (1992) 2 Cal.4th 

792, 827.) “It is axiomatic that nothing the prosecutor says in an 

opening statement is evidence.” (Ibid.) “‘[R]emarks made in an 

opening statement cannot be charged as misconduct unless the 

evidence referred to by the prosecutor “was ‘so patently 

inadmissible as to charge the prosecutor with knowledge that it 

could never be admitted.’”’” (People v. Dykes (2009) 46 Cal.4th 

731, 762; accord, People v. Cole (2004) 33 Cal.4th 1158, 1203 

[“prosecutors ‘have wide latitude to discuss and draw inferences’”; 

whether inferences are reasonable is for the jury to decide].)

In this case the jury was instructed that the prosecutor’s 

opening statement did not constitute evidence. Any 

inconsistencies between the prosecutor’s description of the video 

and what it actually portrayed would have been readily apparent 

to the jury during the opening statement or the many other times 

it viewed the video over the course of the trial. Anderson does 

not contend the prosecutor referred to any evidence that was not 

admitted at trial nor has Anderson disputed the accuracy of the 

prosecutor’s descriptions of the video. The prosecutor’s 

statements were well within the wide scope of permissible 

descriptions of evidence and did not constitute misconduct.

6. Anderson’s Sentence Does Not Violate Section 654; 

Prince’s Sentence Requires Correction 

a. Governing law and standard of review

Section 654, subdivision (a), provides, “An act or omission

that is punishable in different ways by different provisions of law 
44

shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the 

act or omission be punished under more than one provision.”

The determination whether a defendant may be subjected 

to multiple punishment under section 654 requires a two-step 

inquiry. First, the court considers whether the different crimes 

were completed by a single physical act. If so, the defendant may 

be punished only once for the single act. (People v. Corpening

(2016) 2 Cal.5th 307, 311.) If more than a single act is involved, 

that is, a “course of conduct,” then the court considers whether 

“that course of conduct reflects a single ‘“intent and objective”’ or 

multiple intents and objectives.” (Ibid.) If multiple acts were 

pursued with a single criminal intent and objective, “‘“‘the 

defendant may be punished for any one of such offenses but not 

for more than one.’”’” (People v. Jackson, supra, 1 Cal.5th at 

p. 354; accord, Corpening, at p. 311.)

A trial court’s section 654 determinations based on 

disputed facts are reviewed for substantial evidence. (People v. 

Osband (1996) 13 Cal.4th 622, 730-731; People v. Jones (2002) 

103 Cal.App.4th 1139, 1143 [trial court “is vested with broad 

latitude” in making its section 654 determination and court’s 

“findings will not be reversed on appeal if there is any substantial 

evidence to support them”].)

b. The trial court properly sentenced Anderson for 

possession of a loaded firearm

Anderson contends his sentence for possession of a loaded 

firearm (count 4) should have been stayed under section 654 

because it was part of the same act as the attempted voluntary 

manslaughter. However, section 654 does not bar separate 

punishments for unlawfully possessing a firearm and a crime 
45

committed with the firearm when those offenses were committed 

by separate acts not part of an indivisible course of conduct. 

Unless the evidence “demonstrates ‘at most that fortuitous 

circumstances put the firearm in the defendant’s hand only at the 

instant of committing another offense,’” punishment for both 

offenses is proper. (People v. Jones, supra, 103 Cal.App.4th at 

p. 1144 [section 654 did not bar punishment for both possession 

of firearm by felon and shooting at inhabited dwelling]; cf. People 

v. Bradford (1976) 17 Cal.3d 8, 22-23 [where defendant wrestled 

away officer’s revolver and shot officer with it, punishment for 

both assault with deadly weapon on peace officer and possession 

of firearm by felon was prohibited by section 654].)

Here, the inference that Anderson arrived at the scene of 

the crime already armed with a loaded firearm was reasonable 

and supported by substantial evidence. There was no evidence 

Anderson picked up a firearm in the vicinity of the liquor store 

immediately before the shooting. Further, nothing in the 

surveillance video could be interpreted as Anderson finding and 

grabbing a weapon from a location other than on his person. The 

only reasonable inference is that Anderson possessed the firearm 

prior to, and separate from, his encounter with Jackson. (See 

People v. Jones, supra, 103 Cal.App.4th at p. 1147 [“[i]t strains 

reason to assume that Jones did not have possession for some 

period of time before firing shots at the Walter home. Any other 

interpretation would be patently absurd”].) Under these

circumstances section 654 does not prohibit punishment for both 

attempted voluntary manslaughter and firearm possession. 

(Ibid.; see also People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378 

[evidence that defendant arrived at scene of kidnapping and 

carjacking already in possession of firearm was sufficient to show 
46

that defendant harbored separate intent and objective in illegally 

possessing firearm and in using firearm in commission of 

kidnapping during carjacking].)

c. The trial court properly sentenced Prince on both 

counts of carrying a loaded firearm

Prince was convicted on counts 2 and 6 of carrying a loaded 

firearm while an active participant in a criminal street gang. 

The jury also found true Prince committed the offenses for the 

benefit of a criminal street gang pursuant to section 186.22, 

subdivision (b). Prince contends his sentences for the 

enhancements should have been stayed under section 654 

because they were based on the same physical act as the 

substantive offenses, “namely, carrying a loaded gun while being 

an active participant in a criminal street gang.” 

Prince’s argument rests on a fundamental misapprehension 

of applicable law. As discussed, conviction for carrying a loaded 

firearm while an active participant in a criminal street gang 

(§ 25850, subd. (c)(3)) requires proof of each element of 

section 186.22, subdivision (a)—actively participating in a 

criminal street gang with knowledge its members engage in or 

have engaged in a pattern of criminal gang activity and willfully 

promoting or assisting in any felonious conduct by members of 

the gang. (People v. Infante, supra, 58 Cal.4th at p. 692.) 

Section 186.22, subdivision (b)(1), on the other hand, provides for 

a sentence enhancement for any person convicted of a felony that 

was committed for the benefit of, at the direction of, or in 

association with any criminal street gang with the specific intent 
47

to promote, further or assist in any criminal conduct by gang 

members. (People v. Livingston (2012) 53 Cal.4th 1145, 1170.)17 

As the Supreme Court has explained, “Section 186.22(a) 

and section 186.22(b)(1) strike at different things.” (People v. 

Rodriguez, supra, 55 Cal.4th at p. 1138.) Subdivision (b)(1) seeks 

to punish felonies committed to benefit the gang, regardless of 

whether the defendant is a gang member. (See People v. Albillar

(2010) 51 Cal.4th 47, 68 [a true finding under section 186.22, 

subdivision (b)(1), “does not depend on membership in a gang at 

all”].) Subdivision (a) seeks to punish gang members who have 

committed a felony in concert with other gang members, 

regardless of whether the felony was related to the gang. 

(See Rodriguez, at p. 1138; People v. Ferraez (2003) 

112 Cal.App.4th 925, 930 [section 186.22, subdivision (a), “‘is a 

substantive offense whose gravamen is the participation in the 

gang itself’”].) 

In determining whether section 654 prohibits multiple 

punishments for sentence enhancements and sentencing factors, 

17 A “criminal street gang” is defined as “any ongoing 

organization, association, or group of three or more persons, 

whether formal or informal, having as one of its primary 

activities the commission of one or more of [certain enumerated] 

criminal acts[,] . . . having a common name or common 

identifying sign or symbol, and whose members individually or 

collectively engage in, or have engaged in, a pattern of criminal 

gang activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal gang 

activity’ means the commission of . . . or conviction of two or more 

of [certain enumerated offenses]” that “were committed on 

separate occasions, or by two or more persons.” (§ 186.22, 

subd. (e).)
48

the analysis is adjusted to account for the differing nature of 

substantive crimes and enhancements. (See People v. Ahmed

(2011) 53 Cal.4th 156, 163.) “[E]nhancement provisions do not 

define criminal acts; rather, they increase the punishment for 

those acts. They focus on aspects of the criminal act that are not 

always present and that warrant additional punishment.” (Ibid.) 

Separate enhancements or sentencing factors may be applied to 

different aspects of the same substantive offense, but “section 654 

bars multiple punishment for the same aspect of a criminal act.” 

(Id. at p. 164.) “If section 654 barred any additional punishment 

for a single criminal act, then no enhancement at all would be 

permitted, a result obviously inconsistent with the function of 

sentence enhancements.” (Ibid.)

Here, the sentencing factor and enhancement imposed on 

the firearm convictions penalized different aspects of Prince’s

crimes: The section 25850, subdivision (c)(3), sentencing factor 

applied because of Prince’s status as an active gang member 

when he carried a loaded firearm; the purpose of the offenses was 

irrelevant. The section 186.22, subdivision (b)(1), enhancement 

applied because the offense was committed, at least in part, to 

benefit the gang; Prince’s status was irrelevant. Because the 

sentencing factor and enhancement punished different aspects of 

the crime, sentencing under both provisions did not violate 

section 654. (Cf. People v. Garcia (2007) 153 Cal.App.4th 1499, 

1514 [“section 654 does not prohibit punishing a defendant both 

for violating section 186.22, subdivision (a) and for the 

underlying crime committed for the benefit of the gang when the 

two offenses involve different objectives”].)
49

d. Prince’s sentence for unlawfully possessing 

ammunition on August 30, 2015 must be stayed 

pursuant to section 654

Prince contends, the Attorney General concedes, and we 

agree the trial court erred in failing to stay under section 654 the 

sentence for Prince’s conviction for unlawfully possessing 

ammunition on August 30, 2015, charged in count 3. 

Prince was convicted of carrying a loaded firearm on the 

night of the shooting (count 2) and of unlawfully possessing 

ammunition at the same time (count 3). It is undisputed, 

however, that the only ammunition Prince possessed was loaded 

in the firearm. On these facts substantial evidence does not 

support a finding Prince had more than one objective in 

possessing the loaded firearm and the ammunition. (See People 

v. Broadbent (2020) 47 Cal.App.5th 917, 923 [trial court erred in 

not staying sentences imposed for sale of firearms and sale of 

large-capacity magazines where firearms were sold with 

magazines]; People v. Sok (2010) 181 Cal.App.4th 88, 100 [trial 

court should have stayed sentence for defendant’s possession of 

ammunition where it imposed sentence for unlawful possession of 

firearm and ammunition was either loaded into the firearm or 

had been fired from the firearm]; People v. Lopez (2004) 

119 Cal.App.4th 132, 138 [trial court erred in failing to stay 

sentence for possession of ammunition where the ammunition 

was loaded into the firearm and defendant’s intent was to possess 

a loaded firearm].)
50

7. Anderson Has Forfeited the Argument the Trial Court 

Abused Its Discretion by Imposing Consecutive Sentences 

for Attempted Voluntary Manslaughter and Possession of 

a Loaded Firearm

The trial court has “broad discretion to decide . . . whether 

to run the prison terms on multiple offenses concurrently or 

consecutively.” (People v. Clancey (2013) 56 Cal.4th 562, 579.) 

California Rules of Court, rule 4.425 sets forth specific criteria 

affecting the decision, including the presence of circumstances in 

aggravation or mitigation. The trial court must generally state 

its reasons for choosing to impose consecutive sentences (Cal. 

Rules of Court, rule 4.406(b)(5)), but “there is no requirement 

that, in order to justify the imposition of consecutive terms, the 

court find that an aggravating circumstance exists.” (People v. 

Black (2007) 41 Cal.4th 799, 822.) “In imposing an upper term, 

the court must set forth on the record ‘facts and reasons’ 

[citation], including the ‘ultimate facts that the court deemed to 

be circumstances in aggravation.’ [Citation.] But it need only 

cite ‘reasons’ for other sentencing choices (§ 1170, subd. (c)), and 

the reasons given for imposing a consecutive sentence need only 

refer to the ‘primary factor or factors’ that support the decision to 

impose such a sentence. (Cal. Rules of Court, rule 4.406(a), (b); 

§ 1170, subd. (c); see People v. Tran (1996) 47 Cal.App.4th 759, 

774.)” (Black, at p. 822.)

At the sentencing hearing the trial court heard arguments 

from the parties regarding section 654 and allowed the attorneys 

to make arguments regarding mitigating and aggravating 

factors. The court then took a recess to calculate the sentences, 

after which it stated it had reviewed the sentencing memoranda

and attachments as well as the probation reports. The court 

stated, “I am persuaded by the People’s argument with respect to 
51

the sentencing structure being one of consecutive as opposed to 

concurrent. I am also not inclined to stay any part of the 

sentence pursuant to Penal Code section 654; I think that the 

jury verdicts are indicative of what they thought with respect to 

the crimes that were committed. I am persuaded by the People’s 

argument that these were acts that could be divided with respect 

to the attempted voluntary manslaughter and the gun.” The 

court then pronounced the sentences and asked if the parties 

wished to be heard further; the prosecutor and Prince’s attorney 

each made a brief record regarding ancillary issues. Neither 

Prince nor Anderson’s counsel objected to the sentences imposed.

Anderson requests we remand his case for resentencing 

because the trial court failed to state its reasons for imposing 

consecutive sentences for attempted voluntary manslaughter and 

possession of a loaded firearm (counts 1 and 4). However, 

Anderson’s failure to object at sentencing to the imposition of 

consecutive sentences forfeited his contention. (See People v. 

Boyce (2014) 59 Cal.4th 672, 730 [“‘complaints about the manner 

in which the trial court exercises its sentencing discretion and 

articulates its supporting reasons cannot be raised for the first 

time on appeal’”]; People v. Gonzalez (2003) 31 Cal.4th 745, 751

[same]; People v. Scott (1994) 9 Cal.4th 331, 353 [same].)

In his reply brief Anderson argues the forfeiture rule 

should not apply because the trial court “announced its decision 

without a statement of any specific factors it considered or found 

outweighed factors in mitigation, leaving no opportunity for a 

meaningful objection.” This argument is without merit. The trial 

court’s announcement of the sentences, followed by counsel’s 

opportunity to raise additional issues, gave Anderson sufficient 

opportunity to object or seek clarification. (See People v. 
52

Gonzalez, supra, 31 Cal.4th at p. 752 [“parties are given an 

adequate opportunity to seek such clarifications or changes if, at 

any time during the sentencing hearing, the trial court describes 

the sentence it intends to impose and the reasons for the 

sentence, and the court thereafter considers the objections of the 

parties before the actual sentencing”].) To the extent the court 

did not articulate at the hearing the aggravating factors 

supporting imposition of consecutive sentences, it was incumbent 

on trial counsel to seek clarification. This is precisely the kind of 

readily correctable error the forfeiture rule is intended to 

prevent.

8. The Trial Court Failed To Impose or Strike Gang 

Enhancements on Prince’s Ammunition Convictions 

(Counts 3 and 7)18

Despite the jury’s finding Prince had committed the 

offenses of unlawful possession of ammunition (counts 3 and 7) 

18 In some instances we will modify a sentence to impose or 

strike terms that were improperly stayed or omitted. However, 

when, as here, a sentence is composed of multiple elements as to 

which the trial court had some discretion (see, e.g., §§ 669 

[vesting court with discretion to choose between concurrent and 

consecutive sentences]; 1170, subd. (b) [affording discretion to 

trial court to select among three statutorily authorized terms of 

imprisonment]), the appropriate remedy is to remand to permit 

the trial court to reconsider all components of the sentence. (See 

People v. Salvador (2017) 11 Cal.App.5th 584, 586-587 [court’s 

erroneous imposition of sentencing enhancement on multiple 

counts favored remand for resentencing rather than 

modification]; People v. Bradley (1998) 64 Cal.App.4th 386, 400-

401 [remand for resentencing is appropriate when sentencing 

choice within trial court’s discretion].)
53

for the benefit of a criminal street gang, at sentencing the trial 

court failed to consider those enhancements. Neither the People 

nor the court proffered a reason for omitting them, and we find no 

support for that decision in the record.19 

On remand the court must either impose the additional 

punishment mandated under section 186.22, 

subdivision (b)(1)(A), or strike the additional punishment after 

making the findings specified in section 186.22, subdivision (g).20

DISPOSITION

The judgment as to Anderson is affirmed. Prince’s

convictions are affirmed. Prince’s sentence is vacated, and his 

case remanded for a new sentencing hearing.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

19 The parties do not raise this issue on appeal. However, we 

have an obligation to correct an unauthorized sentence whenever 

it comes to our attention. (See People v. Cunningham (2001) 

25 Cal.4th 926, 1044-1045; People v. Dotson (1997) 16 Cal.4th 

547, 554, fn. 6].)

20 Section 186.22, subdivision (g), states: “Notwithstanding

any other law, the court may strike the additional punishment 

for the enhancements provided in this section . . . if the court 

specifies on the record and enters into the minutes the 

circumstances indicating that the interests of justice would best 

be served by that disposition.”