Filed 4/11/18 Opinion on remand from Supreme Court

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY WATTS,

Defendant and Appellant.

 B270324

 (Los Angeles County

 Super. Ct. No. TA129035)

APPEAL from an order of the Superior Court of Los 

Angeles County, Allen J. Webster, Jr., Judge. Affirmed in part 

and reversed in part with directions.

Randy S. Kravis, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 

8.1110, this opinion is certified for publication with the exception 

of part II of the Discussion.
2

Attorney General, Susan Sullivan Pithey and Esther P. Kim, 

Deputy Attorneys General, for Plaintiff and Respondent.

——————————

A jury convicted Bobby Watts (Watts) of murder and found 

that Watts committed the offense for the benefit of, at the 

direction of, and in association with a criminal street gang. 

Watts then filed a motion for new trial, alleging the evidence was 

insufficient to sustain the jury’s true finding on the gang 

enhancement allegation and that his trial attorney had provided 

ineffective assistance of counsel. The trial court denied the 

motion. On appeal, Watts contends the trial court abused its 

discretion in denying the motion. Watts also contends the trial 

court erred by precluding him from introducing evidence of the 

victim’s blood alcohol level at the time of his death and that 

instructing the jury using CALCRIM No. 315 violated his due 

process rights. We hold that the trial court employed the 

incorrect test when reviewing Watts’s new trial motion with 

respect to the gang enhancement allegation. We thus reverse the 

trial court order denying the motion with respect to the gang 

allegation only. We further hold that the case must be

remanded so that the trial court can exercise its newly

ripe discretion under Penal Code1 section 12022.53, 

subdivision (h), and determine whether any of the imposed 

firearm enhancements should be stricken. The order is affirmed 

in all other respects. 

 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

BACKGROUND

I. Overview of charges

The Los Angeles County District Attorney’s Office charged 

Watts with one count of murder (§ 187, subd. (a); count 1), and 

one count of possession of a firearm by a felon (§ 29800, 

subd. (a)(1); count 2). The district attorney also alleged that 

Watts personally and intentionally discharged a firearm causing

great bodily injury and death (§ 12022.53, subds. (b), (c) & (d)), 

and committed the offenses for the benefit of, at the direction of, 

and in association with a criminal street gang with the specific 

intent to promote, further, and assist in criminal conduct by gang 

members (§ 186.22, subd. (b)(1)(C).) The district attorney further

alleged that Watts had suffered a prior serious felony (§ 667, 

subd. (a)(1)), as well as a prior “strike” conviction (§§ 667, 

subds. (b)-(i) & 1170.12). Watts pleaded not guilty and denied 

the special allegations. A jury found Watts guilty as charged.2

After sentencing, Watts filed a notice of appeal. 

 

2 Watts waived his right to a jury trial with respect to the 

prior serious felony and prior strike convictions and the trial 

court found the allegations to be true. The trial court then 

sentenced Watts to 80 years to life in state prison as follows: 

25 years to life, doubled to 50 years to life under the “Three 

Strikes” law, plus 25 years for the personal use of a firearm 

enhancement, plus five years for the prior serious felony 

enhancement. The court imposed a four-year sentence on count 2 

but ordered it run concurrent to the sentence in count 1. The 

court also stayed the gang enhancement and remaining firearm 

enhancements pursuant to section 654. The court awarded Watts 

953 days of presentence custody credits.
4

II. Prosecution evidence

A. FLOYD VIDEAU’S MURDER

On June 23, 2013, at approximately 4:00 a.m., Michelle 

Howard, Floyd Videau, and another individual were at a 

playground in the Imperial Courts Housing Projects when a man 

nicknamed “Little Chris” and his girlfriend drove up to the group. 

Little Chris told them to watch out for a car that had been 

circling the area. Howard remembered seeing a car pass by a few 

times but did not think much of it. Little Chris continued to tell 

Howard and Videau that he had spotted someone walking around 

the housing project. At one point, he said to that person, “ ‘Oh, 

you think you’re trying to be slick. I see you.’ ” 

As Little Chris continued to talk with the group, Howard 

saw the same car barreling down the street. The car was a dark, 

two-door vehicle with only one taillight, and Howard saw that 

there were two individuals in the car. As the car passed by, 

Little Chris said, “Oh, there he go right there. That’s the car 

right there.” Little Chris ran after the car, but returned to say 

that the car had disappeared. Someone then said, “Who is that?” 

and Howard turned to see Watts, about three feet away, coming 

toward Videau. Watts’s right arm was beneath his left armpit. 

Little Chris started backing up and told everyone to watch out for 

Watts. Videau and Watts said something to each other. Howard 

then saw Watts pull out a gun, and saw a flash go off. Howard 

backed away and ran. As she ran away, she heard about five to 

seven gunshots. Howard later returned to the playground to see 

Videau’s lifeless body on the ground.3

 

3 Videau sustained a total of seven gunshot wounds. Two 

were fatal. The medical examiner who conducted Videau’s 
5

B. SUBSEQUENT INVESTIGATION

Los Angeles Police Department (LAPD) Detective Scott 

Teubert responded to the shooting. When he arrived at the 

Imperial Courts Housing Projects at 7:00 a.m. that same day, 

Detective Teubert saw Videau’s body on the ground with multiple 

gunshot wounds to his head, back, and right arm. The detective

also saw three expended shell casings around Videau. 

A few days after the shooting, LAPD Officer James 

Shannon staked out Watts’s vehicle—a black 2003 Dodge Stratus 

coupe—as it sat parked next to El Camino College. A few hours 

after Officer Shannon began watching the vehicle, he saw the 

driver throw a piece of paper out the driver’s side window.4

Watts later got out of the vehicle and was arrested. Forensic

print specialists analyzed the seven fingerprints lifted from 

Watts’s vehicle and one fingerprint from a cup found inside the 

vehicle. Six of the eight fingerprints matched Watts’s prints. 

LAPD Officer Darryl Danaher, who worked for the crime 

intelligence task force, monitored closed-circuit television 

systems for multiple housing developments. On the night of the 

shooting, cameras captured Watts’s vehicle multiple times 

around the area of the Imperial Courts Housing Projects. Dwight 

Nichelson, the custodian of records for Sprint Corporation, 

testified that, based on cell tower information, Watts was at the 

location of the shooting at the time it occurred. 

 

autopsy opined that the two fatal gunshot wounds were to 

Videau’s brain.

4 Until this time, no one had walked to, entered, or exited 

the vehicle and police did not know anyone was in the vehicle 

during the two and half hour surveillance up to this point. 
6

LAPD Detectives Nathan Kouri and Manuel Castaneda 

were assigned to investigate the circumstances of the shooting. 

Detective Kouri was aware that video surveillance cameras had 

been set up in the Imperial Courts Housing Projects and 

Nickerson Gardens to monitor activities within those housing 

projects. Detective Kouri was also aware that license plate 

recognition cameras were installed throughout the city. 

Review of the various surveillance camera video showed 

Watts’s vehicle leaving Nickerson Gardens at 3:27 a.m. and 

driving towards the Imperial Courts Housing Projects. After 

circling the Imperial Courts Housing Projects, Watts’s car pulled 

into a laundromat next to the housing project at 4:00 a.m. Watts 

exited the passenger side of the vehicle, opened and rummaged 

through the trunk, and entered the driver’s side of the vehicle to 

change his clothing. Watts then exited the vehicle and walked in 

a northbound direction. The vehicle left the parking lot sometime 

later and started circling the Imperial Courts Housing Projects. 

At 4:15 a.m., the driver of the vehicle pulled up to Watts, who 

was on foot, and after talking briefly, drove away. Watts walked

towards the housing project and was later seen getting into the 

vehicle at 4:20 a.m. At 4:22 a.m., the vehicle approached the 

intersection of the Imperial Courts Housing Projects. At 4:27 

a.m., surveillance video from a nearby parking lot showed 

individuals running away from the playground. 

Detective Kouri interviewed Howard after the shooting. 

Howard identified Watts as the shooter from a six-pack 

photographic lineup. Howard said Watts was five feet six or 
7

seven inches, with a slim build, and was wearing a blue and 

white striped shirt, dark pants and a hat when he shot Videau.

5

C. GANG EXPERT TESTIMONY

LAPD Officer Francis Coughlin testified as the 

prosecution’s gang expert. Officer Coughlin was the senior lead 

officer for the Nickerson Gardens Housing Project and he had 

been investigating gang crimes within that neighborhood for 

17 years. He had extensive gang training and had testified over 

a hundred times as a gang expert. 

Officer Coughlin explained that the gang culture involves 

“putting in work” for the gang. This means gang members must 

commit violent crimes for the benefit of the gang. Committing a 

violent crime shows allegiance to the gang and establishes trust 

with fellow gang members. It also enhances the reputation of the 

gang by instilling fear in the community. Fear is important in 

the gang culture because it deters members of the community 

from reporting gang activity and establishes gang territory. 

There are major gangs in South Central Watts. Each gang 

is located within a housing project. The Bounty Hunter Bloods 

 

5 Howard initially declined to describe the shooter beyond 

the clothes he was wearing when he shot Videau. When shown a 

six-pack with Watts’s photo a few days later, Howard focused on 

two photos, number 3 (Watts) and number 4. She told detectives 

that Watts’s complexion was similar to that of the gunman but 

that number 4 looked to be the same age as the gunman. When 

reminded that the lighting might be different, Howard chose 

Watts’s photo. Howard said Watts’s complexion, eyes, and 

narrow facial structure were consistent with that of the shooter. 

Howard also identified Watts at the subsequent preliminary 

hearing and trial. She based her identification on the features of 

Watts’s face, specifically, his “odd bone structure.” 
8

are located in the Nickerson Gardens Housing Project, the Grape 

Street Crips are located in the Jordan Downs Housing Project, 

and the Project Watts Crips are located in the Imperial Courts 

Housing Projects. Officer Coughlin explained that the gangs in 

each housing project are rivals and members of each gang know 

not to cross into the rival housing projects. Gang members who 

cross into rival gang territory late at night or early in the 

morning are likely present to kill rival gang members. 

Officer Coughlin is familiar with the Bounty Hunters gang. 

The gang has over 2,000 documented members and identified 

themselves as “BHW” in the color red. Gang members have

tattoos of “B” and “H” for Bounty Hunters. The Bounty Hunters 

are territorial in nature. They claim the Nickerson Gardens 

Housing Project as its territory, along with its surrounding 

blocks. The Bounty Hunters are a profitable gang, whose income

mainly came from selling drugs. The gang identifies the Grape 

Street Crips and the Project Watts Crips as their rivals. The 

Bounty Hunters main activities include graffiti, robbery, drug 

sales, and shootings. 

According to Officer Coughlin, Watts is a member of the 

Bounty Hunters gang and is known as “Porky” or “GK Porky.” 

Watts has several tattoos that are affiliated with the Bounty 

Hunters gang. His email address (gkporkybhw115@gmail.com) 

also identified him as a Bounty Hunters gang member. Officer 

Coughlin explained that GK stood for “Grape Killer,” “Porky” was 

Watts’s nickname, “BHW” stood for Bounty Hunter Watts, and 

“115” was for 115th Street, which was a subset of Bounty Hunter 

Watts in the Nickerson Gardens Housing Projects. Multiple text 

messages and Facebook photos with Watts throwing up Bounty 

Hunters gang signs led Officer Coughlin to opine that Watts was 
9

a member of the Bounty Hunters gang. Officer Coughlin knew 

Videau to be a member of the rival Project Crips. Videau had 

tattoos showing his allegiance to the gang. Videau was also 

associated with Little Chris, who was a member of the Project 

Crips gang. 

With respect to Videau’s murder, Officer Coughlin opined 

that the killing was committed for the benefit of, at the direction 

of, or in association with the Bounty Hunters gang. The shooting 

benefited the gang because it reaffirmed the reputation of the 

gang as a violent gang. The shooting also reaffirmed the status 

of the gang to rival gang members, as well as the public, because 

it served as a warning to others not to encroach on their territory 

or to report crimes. 

Watts presented no evidence in his defense. 

DISCUSSION

I. Watts’s motion for a new trial

A. GANG ENHANCEMENT ALLEGATION

Watts contends that trial court abused its discretion when 

denying his motion for a new trial on the ground that the 

evidence was insufficient to sustain the jury’s true finding on the 

gang enhancement allegation. Watts filed the new trial motion 

pro se. In the motion, Watts asked the trial court to “reweigh the 

evidence regarding the sufficiency of the evidence to support the 

gang enhancement.”6 Watts claimed the following findings were 

 

6 Watts’s motion also contended that the trial court erred in 

admitting Little Chris’ statements. Watts does not address that 

issue on appeal. Watts also argued that he had received 

ineffective assistance of counsel, identifying several alleged 

errors committed by his attorney. Watts does re-raise this issue 

on appeal and it is addressed below.
10

not supported by substantial evidence—that it was Watts who 

sent the text messages found on his cell phone; that Watts was a 

gang member; that Videau’s murder was gang related; that the 

people in Watts’s car were Bounty Hunters gang members; that 

the Bounty Hunters and Project Watts Crips are rivals; and that 

Watts’s Facebook name was gang related. 

At the hearing on the motion, Watts again argued that the 

gang enhancement was not supported by sufficient evidence. The 

trial court said that although it understood Watts’s argument, it 

could not review the claim: “But that, again, is an evidentiary 

ruling. It goes to the merits of the case. That’s something that 

would go up on appeal. Whether this is a gang case or not is not 

a basis for a motion for new trial.” “Because I know where you 

are going with this. Is that these two particular groups were not 

at war, okay. I understand that. But that is not the basis for a 

motion for new trial, whether the Bloods and Crips were at war 

or not. That has nothing to do with a motion for new trial. 

That’s not one of the elements for [a] motion for new trial. That 

goes to the sufficiency of the merits of the case, which is 

something that will be taken up on appeal.” 

Throughout the hearing, the trial court continually 

maintained that Watts’s claim was not appropriate for a new 

trial motion. “I don’t understand why we are involving ourselves 

in this argument, because it doesn’t go to one [of] the factors for a 

motion for new trial. [¶] . . . [¶] Where does it say that in 

[section] 1181, that that’s one of the factors?”

7 Watts pointed the 

 

7 Section 1181 prescribes the grounds upon which a trial 

court may grant a new trial after a verdict or finding has been 

made. Subdivision 6 of section 1181 provides that a trial court 

may grant a new trial when “the verdict or finding is contrary to 
11

court’s attention specifically to subdivision 6 of section 1181. 

“Insufficiency of the evidence pursuant to [section 1181, 

subdivision (6)],” Watts answered. “The verdict or finding 

contrary to . . . the law or evidence, Penal Code [section 1181, 

subdivision (6)] requires that the trial judge independently 

reweigh the evidence. People versus Davis, 1985.”8 “It’s not for 

me to reweigh the evidence,” the trial court again insisted. 

“Because there was testimony that you were [a] Blood. You live 

in Nickerson Gardens, hang out in Nickerson Gardens. And this 

other person [who] was killed is a Crip, had on blue and was 

killed. So as far as the court is concerned, there was evidence to 

 

law or evidence but if the evidence shows the defendant to be not 

guilty of the degree of the crime of which he was convicted, but 

guilty of a lesser degree thereof, or of a lesser crime included 

therein, the court may modify the verdict, finding or judgment 

accordingly without granting or ordering a new trial, and this 

power shall extend to any court to which the cause may be 

appealed.”

8 Watts was referring to People v. Davis (1995) 10 Cal.4th 

463, which articulated the standard of review a trial court must 

follow when faced with a new trial motion. “In reviewing a 

motion for a new trial, the trial court must weigh the evidence 

independently. [Citation.] It is, however, guided by a

presumption in favor of the correctness of the verdict and 

proceedings supporting it. [Citation.] The trial court ‘should 

[not] disregard the verdict . . . but instead . . . should consider the 

proper weight to be accorded to the evidence and then decide 

whether or not, in its opinion, there is sufficient credible evidence 

to support the verdict.’ ” (Id. at pp. 523–524.) Although Watts 

did not provide the full citation to Davis when arguing before the 

trial court during the hearing, he did cite the case correctly in his 

new trial motion.
12

let the jury decide yes it was a gang case or no it wasn’t. . . . Now 

whether it was or it wasn’t, it’s not for me to second guess the 

jury.” 

After discussing another claim asserted by Watts in his 

motion, the trial court returned to Watts’s argument that 

insufficient evidence supported imposition of the gang 

enhancement. Watts reiterated that he was specifically asking 

the court to reweigh the evidence. The trial court informed 

Watts: “My job . . . is not to retry the case in my head and do 

whatever you want me to do because you think the evidence 

wasn’t sufficient enough for the jury. That’s what they do on 

appeal. That’s not what I do, okay.” 

On appeal, Watts contends that the trial court “completely 

misunderstood the scope of its authority and its duty to 

independently reweigh the evidence supporting the gang 

enhancement allegation.” For example, in People v. Dickens

(2005) 130 Cal.App.4th 1245, the appellate court observed that 

“[t]he trial court’s duty is to review the evidence independently 

and satisfy itself that the evidence as a whole is sufficient to 

sustain the verdict.”9 (Id. at p. 1251.) “Although the trial court 

is to be ‘guided’ by a presumption in favor of the correctness of 

 

9 Indeed, appellate courts have repeatedly emphasized the 

discretion afforded trial courts in this respect as well as the 

courts’ duty to independently review the evidence. “It is the trial 

court’s function to determine independently whether it is 

satisfied that there is sufficient credible evidence to sustain the 

verdict. If the record contains any substantial evidence which 

supports a judgment contrary to that of the jury, the trial court’s 

ruling must be upheld, even if there is also legally sufficient 

evidence to support the jury’s verdict.” (People v. Dickens, supra, 

130 Cal.App.4th at p. 1254.)
13

the jury’s verdict [citation], this means only that the court may 

not arbitrarily reject a verdict which is supported by substantial 

evidence.” (Ibid.) “The trial court is not bound by the jury’s 

determinations as to the credibility of witnesses or as to the 

weight or effect to be accorded to the evidence. [Citations.] Thus, 

the presumption that the verdict is correct does not affect the 

trial court’s duty to give the defendant the benefit of its 

independent determination as to the probative value of the 

evidence. [Citation.] If the court finds that the evidence is not 

sufficiently probative to sustain the verdict, it must order a new 

trial.”

10 (Id. at pp. 1251–1252.) 

In short, the trial court “extends no evidentiary deference” 

when ruling on a new trial motion under section 1181, 

 

10 In contrast, a section 1118.1 motion seeks a judgment of 

acquittal for insufficient evidence. Thus, unlike when deciding a 

section 1181, subdivision (6) motion, the trial court “evaluates the 

evidence in the light most favorable to the prosecution.” (Porter 

v. Superior Court (2009) 47 Cal.4th 125, 132.) In considering this 

legal question, “a court does not ‘ “ask itself whether it believes 

that the evidence at the trial established guilt beyond a 

reasonable doubt.” [Citation.] Instead, the relevant question is 

whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.’ ” 

(People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) This test 

is the same as that used by appellate courts in deciding whether 

evidence is legally sufficient to sustain a verdict. (Ibid.) Notably, 

in a section 1118.1 motion, “the question . . . is simply whether 

the prosecution has presented sufficient evidence to present the 

matter to the jury for its determination.” (People v. Ainsworth

(1988) 45 Cal.3d 984, 1024.) This is the precise test erroneously 

employed by the trial court in Watts’s case. 
14

subdivision (6). (Porter v. Superior Court, supra, 47 Cal.4th at 

p. 133.) “Instead, it independently examines all the evidence to 

determine whether it is sufficient to prove each required element 

beyond a reasonable doubt to the judge, who sits, in effect, as a 

‘13th juror.’ ”

11 (Ibid.) Thus, the grant of a section 1181, 

subdivision (6) motion “is the equivalent of a mistrial caused by a 

hung jury” and “does not bar retrial on double jeopardy grounds.” 

(Ibid.) “This rule permits trial court oversight of the verdict but 

ensures that the People, like the defendant, have the charges 

resolved by a jury.” (Ibid.)

We agree that the trial court employed the incorrect test 

when reviewing Watts’s new trial motion, citing the legal 

standard used when ruling on a section 1118.1 motion rather 

than a section 1181, subdivision (6) motion. The Attorney 

General contends that Watts has focused only isolated comments 

made by the trial court. Not so. A review of the motion hearing 

transcript reveals that the court repeatedly informed Watts it 

could not reweigh the evidence and that its only concern was 

whether the prosecution had presented sufficient evidence to 

present the matter to the jury. Yet, “[w]hen a trial court rules on 

a motion for new trial based upon inadequacy of the evidence, it 

is vested with a ‘plenary’ power—and burdened with a correlative 

duty—to independently evaluate the evidence.” (Ryan v. Crown 

Castle NG Networks, Inc. (2016) 6 Cal.App.5th 775, 784.) As 

discussed above, however, the court incorrectly articulated both 

the scope of its discretion as well as the legal standard by which 

Watts’s new trial motion should be judged. 

 

11 Despite this edict, the trial court explicitly stated, “I’m 

not going to be the jury” when refusing to “second guess what the 

jury had to say.” 
15

The Attorney General also argues that Watts forfeited this 

claim because he did not inform the trial court during the hearing 

that it had employed the wrong legal standard. Again, we 

disagree. At the outset, we note that Watts was appearing pro se 

by this time, drafting both the new trial motion by hand and 

arguing directly before the trial court. Moreover, Watts 

repeatedly argued that the court had the ability to independently 

reweigh the evidence supporting the gang enhancement. Moving 

on to the merits, the Attorney General contends the court’s ruling 

“as a whole” shows that it understood and applied the 

appropriate legal principles. According to the Attorney General, 

the trial court expressly stated on numerous occasions that 

sufficient evidence was presented in support of the jury’s verdict.

However, in the transcript pages cited by the Attorney General, 

the trial court explicitly told Watts: “I didn’t reweigh the 

evidence. That’s not my job to reweigh the evidence. [¶] . . . [¶] 

It’s not for me to reweigh the evidence.” Although, as the 

Attorney General notes, the trial court did recount the gang 

evidence that had been presented to the jury, the court also made 

clear it would not “second guess” the jury’s finding. The court’s 

position was that “there was basically enough to go to the jury”—

the standard a court employs under section 1118.1, not 

section 1181, subdivision (6). “This is not my decision,” the court 

emphasized, “It’s the jury’s decision.” 

The trial court’s question to Watts—“There was enough for 

the jury to make the finding, true or false?”—does not 

demonstrate that the court understood the scope of its authority. 

While the trial court refused to reweigh evidence proffered by 

Watts at the hearing, but not admitted at trial, the court also 

refused to reweigh the evidence that had been received by the 
16

jury during the trial. The Attorney General’s theory—not Watts’s

theory—is inconsistent with the record and the statements made 

by the trial court at the new trial hearing. Indeed, the overall 

tenor of the comments supports the interpretation that the trial 

court misperceived the applicable standard and denied the 

motion by erroneously applying a section 1118.1 standard rather 

than the proper independent judgment standard.12

The Attorney General next contends that even if the trial 

court erred, the error was harmless because it is apparent the 

court would not have granted relief on the claim even if it had 

employed the correct legal standard. Thus, remand is not 

required. However, in cases with similar procedural postures, 

 

12 The Attorney General, perhaps recognizing the 

ambiguity inherent in the trial court’s explanation of its ruling, 

relies on People v. Davis, supra, 10 Cal.4th 463, in which our 

Supreme Court stated that a trial court “has broad discretion in 

ruling on a motion for a new trial, and there is a strong 

presumption that it properly exercised that discretion.” (Id. at. 

p. 524.) However, Davis provides no assistance here. The 

Supreme Court in Davis noted the record before it “establishe[d] 

that, after considering the motion for a new trial, in which it 

expressly articulated the correct standard of review, the trial 

court independently determined the credibility of the witnesses 

and the probative value of the evidence. Although defendant 

isolates statements in which the trial court refers to the jury’s 

verdicts, it is clear from the record as a whole that it did not 

regard itself as bound by any of the jury's findings.” (Ibid., italics 

added.) Although Davis indulged the “strong presumption” that 

the trial court’s ruling was within its discretion, that conclusion 

was based in part on the trial court’s express articulation of the 

correct standard and because the record as a whole showed the 

trial court knew it was not bound by the jury’s findings. Neither 

of those factors is present here.
17

appellate courts have remanded to allow the trial court to 

exercise its discretion in the first instance. For example, in 

People v. Robarge (1953) 41 Cal.2d 628, the Supreme Court found 

an abuse of discretion when the trial court denied a motion for a 

new trial. The trial court had stated the jury was the sole judge 

of witness credibility, even if the court disbelieved what the 

witnesses said, so long as sufficient evidence existed to support 

the jury’s decision. (Id. at p. 634.) Robarge held “it is the 

province of the trial judge to see that the jury intelligently and 

justly performs its duty and, in the exercise of a proper legal 

discretion, to determine whether there is sufficient credible 

evidence to sustain the verdict.” (Ibid.) The Supreme Court 

reversed because the trial court made remarks which clearly 

showed it disbelieved a key witness but felt bound by the jury’s 

contrary conclusion. As a result, it determined that the trial 

court “failed to give defendant the benefit of its independent 

conclusion as to the sufficiency of credible evidence to support the 

verdict.” (Ibid.) The judgment and order denying the motion for 

a new trial were vacated with directions for the lower court to 

rehear the motion. If the trial court determined that a new trial 

should be granted, the defendant was entitled to a new trial on 

the merits. If it was determined that the new trial should be 

denied, then the trial court was directed to pronounce judgment 

again upon the defendant. (Id. at p. 635.)

In Ryan v. Crown Castle NG Networks, Inc., supra, 

6 Cal.App.5th 775, “[n]othing in the record . . . suggest[ed] that 

the trial court evaluated the evidence.” (Id. at p. 786.) The trial 

court’s “refusal to exercise its power to independently evaluate 

the sufficiency of the award amounted to failure to exercise a 
18

discretion vested by law, which of course is error.”13 (Ibid.)

Consequently, the Court of Appeal, Sixth District, reversed with 

directions to grant a new trial.” (Id. at p. 797.) 

We review the trial court’s denial of a motion for a new trial 

for abuse of discretion. (See People v. Knoller (2007) 41 Cal.4th 

139, 156.) “Such an abuse of discretion arises if the trial court 

based its decision on impermissible factors [citation] or on an 

incorrect legal standard.” (Ibid.) Here, the trial court’s

comments suggest it did not independently review the evidence 

and decide the proper weight to accord it. The comment that 

“there was enough for the jury to make the finding” indicates 

deference to the jury’s weighing of the evidence. In sum, the trial 

court did not articulate the correct standard of review, failed to 

act as a 13th juror to review and independently evaluate the 

evidence, and failed to give Watts the benefit of its independent 

assessment regarding the sufficiency of credible evidence to 

support the verdicts. As such, we reject the Attorney General’s 

contention that a rehearing is not required. Accordingly, the 

judgment and order denying the motion for a new trial are 

 

13 In so holding, the court cited Fletcher v. Superior Court

(2002) 100 Cal.App.4th 386, 392 (failure to exercise discretion 

constitutes denial of fair hearing and deprivation of fundamental 

rights and requires reversal), Lippold v. Hart (1969) 274 

Cal.App.2d 24, 26 (where trial judge misconceived duty at 

hearing on new trial motion, appellate court will not blindly 

affirm judgment) and see People v. Carter (2014) 227 Cal.App.4th 

322, 328 (court abuses its discretion when it misconceives duty,

applies incorrect legal standard, or fails to independently 

consider weight of evidence).
19

vacated and this matter is remanded for a new hearing consistent 

with this opinion.14

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Watts also contends that the trial court abused its 

discretion when it denied his motion for a new trial based on his 

trial attorney’s alleged ineffective assistance of counsel. Watts’s

claim was based on counsel’s failure to call “Little Chris” as a 

trial witness, failure to object to the admission of prejudicial gang 

evidence, failure to object to the detective’s overly suggestive 

identification procedure, failure to object to the admission of

Imperial Courts Housing Projects’ video footage as well as 

biblical verses found on Watts’s phone. 

In a proceeding that took place before the motion hearing, 

Watts emphasized counsel’s failure to call Little Chris as a 

witness as the basis for the motion. The trial court informed 

Watts that ineffective assistance of counsel was not a proper 

ground to raise in a new trial motion. “Ineffective assistance of 

counsel is not one of the ground for motion for new trial. [¶]

Now, if in fact . . . it was ineffective assistance of counsel, that is 

something the appellate court would take up.” Watts attempted 

to correct the trial court. The court countered that ineffective 

assistance of counsel was an issue on direct appeal rather than a 

new trial motion under section 1181. “I don’t know why [Little 

Chris] didn’t testify. I have no idea. That’s between you and 

your lawyer. That is not for me to decide,” the court told Watts. 

“But that would be something that, assuming this matter goes to 

 

14 Watts also contends the trial court miscalculated his 

pretrial credits. On remand, the trial court shall recalculate 

Watts’s custody time, using the correct date of arrest as the 

starting point for its calculation.
20

appeal, that would be something that the appellate court will 

deal with. So it will come up there.” 

The trial court reiterated its position at the motion hearing.

Although the court acknowledged Watts had a due process right 

to a fair trial, the court maintained that ineffective assistance of 

counsel was not a cognizable basis for a new trial. “If you believe 

that your lawyer should have basically called [Little Chris] as a 

witness, maybe your lawyer should have. That’s ineffective 

assistance of counsel. That will come out on appeal. That is not 

basically within the grounds for a motion for new trial.” “Now I 

keep telling you over and over again this is not an appeal. Maybe 

[defense counsel] was incompetent, maybe he was ineffective. 

Maybe so. Maybe the gang [evidence] shouldn’t have come in, 

maybe so[.] I’m not suggesting it should or it shouldn’t. That is 

not what we’re here to decide, okay. We’re here to decide if the 

court made an error. . . . So the court is bound by the mandates 

of section 1181 in terms of making a decision.” 

Watts cited People v. Mayorga (1985) 171 Cal.App.3d 929 in 

support of the court’s ability to review his ineffective assistance 

claim.15 Despite the court’s prior acknowledgment that a 

defendant could move for a new trial based on an alleged due 

process violation rather than the statutory grounds listed in 

section 1181, the court continued to maintain it had no authority 

 

15 People v. Mayorga, supra, 171 Cal.App.3d at page 940 

held that “new trials may be ordered for nonstatutory reasons 

when an error has occurred resulting in the denial of defendant’s 

right to a fair trial, and the defendant has had no earlier 

opportunity to raise the issue.” (See People v. Fosselman (1983) 

33 Cal.3d 572, 582–583; People v. Davis (1973) 31 Cal.App.3d 

106, 110; People v. Oliver (1975) 46 Cal.App.3d 747, 751–752.)
21

to review Watts’s ineffective assistance of counsel claim. Watts 

asked the court, “Your honor, if I understand you correct[ly], 

basically you’re saying that . . . whether he’s incompetent or not, 

it’s . . . not for you to decide, correct?” The court answered,

“That’s right. Exactly what I’m saying. That will be decided by a 

higher court. That’s exactly what I’m saying.” 

However, the court also declined to address the claim 

because Watts had failed to present any admissible evidence to 

support his claim. On a motion for a new trial, the defendant has 

the burden of showing both the ineffectiveness of counsel and the 

prejudice it caused. (People v. Dennis (1986) 177 Cal.App.3d 863, 

872.) Nevertheless, Watts did not submit a declaration or 

affidavit from defense counsel regarding his decision not to call 

Little Chris as a trial witness. Nor did Watts call counsel as a 

witness at the motion hearing.16 Although Watts had procured a 

declaration from Little Chris, which was then submitted to the 

trial court, Little Chris was not present at the hearing. “I can’t 

reweigh a piece of paper and decide it would have a good outcome 

based on a piece of paper rather than somebody coming to court 

 

16 Conversely, however, the prosecutor offered some 

possible insight into defense counsel’s decision. The prosecutor 

noted that counsel had listened to Little Chris’ recorded 

statement before trial and “there were specific aspects of [Little 

Chris’] statement that were inconsistent and undermined his 

credibility as a witness, as well as whatever was going on with 

[Little Chris’] prior history.” In short, the prosecutor said, 

counsel “listened to the recording, made assessments about the 

substance of it, and the declarant himself . . . and made a 

conclusion based upon his experience that this person was not 

going to assist the case for Mr. Watts.” 
22

to testify,” the court told Watts. “I can’t do it. I’m not going to do 

it.”

17 

Although the trial court appears to have misunderstood its 

prerogative to review Watts’s claim, the error was also

compounded by Watts’s failure to fully present this particular 

claim to the trial court. “You have presented nothing that would 

suggest—other than you surmising or speculating or you believe 

that if somebody else had been called as a witness that would 

have made a difference. I respect that you believe that,” the 

court told Watts. “But there is no—there is nothing in evidence 

to basically support or substantiate that other than your beliefs.” 

Although section 1181 sets forth nine grounds for granting 

a motion for a new trial, ineffective assistance of counsel is not 

one of them. The California Supreme Court has explained, 

however, that “in appropriate circumstances, the trial court 

should consider a claim of ineffective assistance of counsel in a 

motion for new trial, because ‘justice is expedited when the issue 

of counsel’s effectiveness can be resolved promptly at the trial 

level.’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 101.)

“But our assumption has been that courts would decide 

such claims in the context of a motion for new trial when the 

court’s own observation of the trial would supply a basis for the 

court to act expeditiously on the motion.” (People v. Cornwell, 

supra, 37 Cal.4th at p. 101, italics added.) “It is undeniable that 

trial judges are particularly well suited to observe courtroom 

performance and to rule on the adequacy of counsel in criminal 

cases tried before them. [Citation.] Thus, in appropriate 

 

17 The trial court also noted that the declaration was 

hearsay, had been signed three months earlier, and contained 

inconsistent statements.
23

circumstances justice will be expedited by avoiding appellate 

review, or habeas corpus proceedings, in favor of presenting the 

issue of counsel’s effectiveness to the trial court as the basis of a 

motion for new trial. If the court is able to determine the 

effectiveness issue on such motion, it should do so.” (People v. 

Fosselman, supra, 33 Cal.3d at pp. 582–583, italics added.) 

Here, Watts’s claim of ineffective assistance of counsel was 

not necessarily appropriate for resolution in a new trial motion 

because it involved defense counsel’s action, or inaction, outside 

the courtroom, in deciding whether to call Little Chris as a 

witness. As the trial court noted, “based on my observation of the 

way [defense counsel] conducted this trial . . . , there is no basis 

for me to decide he was basically ineffective as to how he 

basically tried the case.” Furthermore, ineffective assistance of 

counsel claims “must be supported by declarations or other 

proffered testimony establishing both the substance of the 

omitted evidence and its likelihood for exonerating the accused.” 

(People v. Cox (1991) 53 Cal.3d. 618, 662.) Thus, Watts’s failure 

to provide a declaration or affidavit from defense counsel to 

support his claim of deficient performance or prejudice, as well as 

Watts’s failure to call Little Chris to the stand at the motion 

hearing, left the trial court with little choice. (See People v. 

Jackson (1986) 187 Cal.App.3d 499, 507 [upholding denial of new 

trial motion based on ineffective assistance of counsel because 

defendant did not submit affidavits or testimony]; People v. 

Dennis, supra, 177 Cal.App.3d at p. 873 [defendant must 

establish “by affidavit, oral testimony or reference to the trial 

record” that trial counsel was ineffective].)

“Reviewing courts will reverse convictions on the ground of 

inadequate counsel only if the record on appeal affirmatively 
24

discloses that counsel had no rational tactical purpose for his act 

or omission. In all other cases the conviction will be affirmed and 

the defendant relegated to habeas corpus proceedings.” (People v. 

Fosselman, supra, 33 Cal.3d at p. 581.) Whatever counsel’s 

motive for not calling Little Chris as a trial witness, the record 

does not establish that counsel had no reasonable basis for his 

decision. If Watts wishes to pursue the point, therefore, he may 

do so by petition for habeas corpus.18 (See id. at p. 582.) 

II. Watts’s remaining claims

Watts also contends that the trial court erred when it 

precluded him from introducing evidence of Videau’s blood 

alcohol level at the time of the shooting and that instructing the 

jury using CALCRIM No. 315 violated his due process rights.

Neither argument has merit.

A. VIDEAU’S BLOOD ALCOHOL LEVEL

During trial, the prosecution moved to exclude Videau’s 

toxicology results under Evidence Code section 352, arguing they 

were irrelevant and that the prejudicial effect of the evidence 

outweighed any probative value.19 The defense countered that 

 

18 We reach the same conclusion with respect to counsel’s 

other alleged errors. Once again, Watts’s claims involved defense 

counsel’s action, or inaction, outside the courtroom and Watts 

failed to procure a declaration or affidavit from counsel that 

discussed these particular decisions. Thus, if Watts wishes to 

pursue the point, he may do so by petition for habeas corpus.

19 Pursuant to Evidence Code section 352, “[t]he court in its 

discretion may exclude evidence if its probative value is 

substantially outweighed by the probability that its admission 

will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.”
25

the toxicology results were relevant when evaluating Michelle 

Howard’s credibility. Although Howard testified she had one or 

two beers with Videau, his blood alcohol content level was .32, 

nearly three times the legal limit. The defense argued that since 

Howard was with Videau for hours before the shooting, Videau’s

level of intoxication was relevant to assess Howard’s credibility 

as well as her ability to perceive and relay accurate information. 

The prosecution responded that no evidence supported the 

defense claim that Howard was with Videau throughout the 

night, and it was possible Videau had consumed alcohol outside 

of Howard’s presence. The trial court agreed, noting that 

Howard’s testimony never established how long they were 

together. Indeed, Howard testified that there were times when 

she did not see Videau. 

The defense also argued that Videau’s blood alcohol level 

was relevant because “at least some circumstantial evidence” 

showed more drinking took place than what Howard had 

described. The trial court noted that many factors contribute to 

blood alcohol levels, including tolerance for alcohol, and the 

duration an individual had been drinking. In this case, Howard 

met Videau on the night of the shooting. She did not know how 

alcohol affected Videau and, to the extent the defense suggested

otherwise, no evidence supported this argument. The trial court 

concluded that defense counsel’s arguments were “just 

speculation and conjecture” and that, without more, Videau’s 

blood alcohol level would be excluded. 

A trial court has discretion to admit or exclude evidence 

offered for impeachment. (People v. Brown (2003) 31 Cal.4th 

518, 534.) We review for abuse of discretion a trial court’s ruling 

to admit or exclude proffered evidence under Evidence Code 
26

section 352. (People v. Hamilton (2009) 45 Cal.4th 863, 929–

930.) A court abuses its discretion when its ruling “falls outside 

the bounds of reason.” (People v. Osband (1996) 13 Cal.4th 622, 

666.) In other words, abuse of discretion is established by 

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. Carrington (2009) 47 

Cal.4th 145, 195.)

We agree with the trial court that the connection between 

the excluded evidence and the issues at this trial was unduly 

tenuous. Indeed, although the defense argued that Videau’s 

intoxication had some bearing on Howard’s credibility and her 

ability to perceive and relay accurate information, there was no 

evidence that Howard was with Videau throughout the night. 

While both attended a party before the shooting, they did not 

meet until after the party was over. Howard left the party by 

herself and then went to the Imperial Courts Housing Projects

where she met Videau. She accompanied Videau for a few hours 

before the shooting took place. As the trial court recognized, 

Videau could have consumed alcohol at the party, outside of 

Howard’s presence or knowledge. Thus, there was no evidence 

that Howard knew how much alcohol Videau had consumed 

throughout the night.

Even if Howard had somehow acquired this knowledge, 

there was no evidence she also knew Videau’s tolerance level for

alcohol. As the trial court noted, tolerance varies with each 

individual and thus it was speculative to conclude that Howard 

had the ability to assess the effect of alcohol on Videau. This is 

especially true given that there was no testimony that Videau

showed any visible signs of intoxication. Consequently, Videau’s 
27

blood alcohol results neither undercut Howard’s credibility nor 

called her ability to perceive events into question. Accordingly, 

the trial court did not abuse its discretion in excluding Videau’s 

toxicology results. 

Furthermore, evidence is prejudicial within the meaning of 

Evidence Code section 352 if it tends to evoke an emotional bias 

against a person or to cause the jury to prejudge a person or 

cause on the basis of extraneous factors. (People v. Cowan (2010) 

50 Cal.4th 401, 475.) In short, a trial court “ ‘ “is not required to 

admit evidence that merely makes the victim of a crime look 

bad.” ’ ” (People v. Loker (2008) 44 Cal.4th 691, 736; see People v. 

Kelly (1992) 1 Cal.4th 495, 523 [rejecting defendant’s attempted 

introduction of toxicology reports showing drugs and alcohol in 

victim’s blood where results were irrelevant to issues 

presented].) 

Finally, exclusion of this evidence did not interfere with 

Watts’s constitutional right to present a defense. “As a general 

matter, the ‘[a]pplication of the ordinary rules of 

evidence . . . does not impermissibly infringe on a defendant’s 

right to present a defense.’ ” (People v. Fudge (1994) 7 Cal.4th 

1075, 1102–1103.) “Although completely excluding evidence of 

an accused’s defense theoretically could rise to this level, 

excluding defense evidence on a minor or subsidiary point does 

not impair an accused’s due process right to present a defense.” 

(Id. at p. 1103.) In other words, a defendant has no 

constitutionally protected right to introduce evidence that is 

irrelevant or only remotely relevant. (People v. Hall (1986) 41 

Cal.3d 826, 834–835.) The toxicology results, which had little 

probative value, were only remotely relevant. 
28

Nor did the trial court violate Watts’s confrontation clause 

rights. “ ‘[T]rial judges retain wide latitude insofar as the 

Confrontation Clause is concerned to impose reasonable limits 

on such cross-examination based on concerns about, among other 

things, harassment, prejudice, confusion of the issues, the 

witness’ safety, or interrogation that is repetitive or only 

marginally relevant.’ [Citations.] Exclusion of impeaching 

evidence on collateral matters which has only slight probative 

value on the issue of veracity does not infringe on the 

defendant’s right of confrontation.” (People v. Greenberger (1997) 

58 Cal.App.4th 298, 350; see Delaware v. Van Arsdall (1986) 475 

U.S. 673, 679; People v. Cooper (1991) 53 Cal.3d 771, 817.)

Because the toxicology results in this case had only slight or no

probative value with respect to Howard’s veracity or 

observational abilities, their exclusion did not infringe on 

Watts’s right of confrontation. 

B. CALCRIM NO. 315

CALCRIM No. 315 enumerates the factors a jury is to 

consider when evaluating identification testimony. The pattern 

jury instruction lists 14 different factors a jury may consider in 

evaluating that testimony. One of those factors is: “How certain 

was the witness when he or she made an identification?” Watts 

contends CALCRIM No. 315 is unconstitutional because it 

instructs the jury to consider a witness’s degree of certainty 

when evaluating eyewitness identification. However, a series of 

cases from the United States and California Supreme Courts, 

and California appellate courts, have repeatedly found that 

“certainty” is an appropriate factor to evaluate eyewitness 

identifications, and that CALCRIM No. 315, as well as its 
29

predecessor CALJIC No. 2.92, are correct statements of the law 

and constitutional.20

For example, in Neil v. Biggers (1972) 409 U.S. 188, the 

United States Supreme Court identified several factors to 

consider when determining the reliability of an identification, 

including the level of certainty demonstrated by the witness at 

the confrontation. (Id. at pp. 199–200.) In Perry v. New 

Hampshire (2012) 565 U.S. 228, the United States Supreme 

Court addressed a defendant’s due process argument regarding

the reliability of an identification. In so doing, Perry cited the 

factors set forth in Neil, including certainty, and held that these 

factors are properly considered when evaluating the reliability of 

eyewitness identifications. (Id. at pp. 239–241 & fn. 5.) In 

People v. Gaglione (1994) 26 Cal.App.4th 1291, the defendant 

argued that the certainty factor in CALJIC No. 2.92 was 

erroneous and should have been deleted. (Id. at pp. 1302–1303.) 

Gaglione held the instruction was proper because it did not take 

a position on the significance of the witness’s certainty, but 

merely called attention to certainty as a factor. (Ibid.) A similar 

result was reached in People v. Sullivan (2007) 151 Cal.App.4th 

524, which rejected the defendant’s argument that the trial court 

should have deleted the certainty factor from the instruction. 

(Id. at pp. 561–562.)

Although Watts cites studies and out-of-state cases that 

have questioned the validity of certainty as a factor when

evaluating eyewitness testimony, the California Supreme Court 

recently rejected an attack on the “certainty” factor, similar to 

 

20 CALJIC No. 2.92 instructed the jury that it should 

consider “[t]he extent to which the witness is either certain or 

uncertain of the identification.”
30

the one which Watts has raised here. “Studies concluding there 

is, at best, a weak correlation between witness certainty and 

accuracy are nothing new. We cited some of them three decades 

ago to support our holding that the trial court has discretion to 

admit expert testimony regarding the reliability of eyewitness 

identification.” (People v. Sanchez (2016) 63 Cal.4th 411, 462 

(Sanchez).) Indeed, our Supreme Court noted it had “specifically 

approved” CALJIC No. 2.92, including its certainty factor and 

has “since reiterated the propriety of including this factor.” 

(Ibid.) Sanchez further held that the defendant did not suffer 

any prejudice from the court’s use of the instruction. “The 

instruction cited the certainty factor in a neutral manner, telling 

the jury only that it could consider it. It did not suggest that 

certainty equals accuracy. In this case, telling it to consider this 

factor could only benefit defendant when it came to the 

uncertain identifications, and it was unlikely to harm him 

regarding the certain ones.” (Ibid.)

We are bound by the California Supreme Court ruling in 

Sanchez, supra, 63 Cal.4th 411 as well as the United States

Supreme Court’s continued approval of the “certainty” factor in 

Neil v. Biggers, supra, 409 U.S. 188 and Perry v. New 

Hampshire, supra, 565 U.S. 228. We hold the court correctly 

instructed the jury with CALCRIM No. 315. To that end, we 

also hold that defense counsel’s failure to object to the 

instruction was not ineffective assistance. As with the other 

attorney errors alleged by Watts, defense counsel was not given 

an opportunity to offer reasons for the inaction. Speculating 

that no reasonable tactical or strategic reason supported the

failure to object does not establish ineffective assistance of 

counsel. (See People v. Mattson (1990) 50 Cal.3d 826, 876, 877.) 
31

Moreover, counsel was not required to make a meritless 

objection. (See People v. Ochoa (1998) 19 Cal.4th 353, 463.)

PETITION FOR REVIEW

After we published our opinion, Watts sought review in the 

California Supreme Court. In an order filed February 21, 2018, 

the Supreme Court granted review and ordered the matter 

transferred back to this court with directions to vacate its 

decision and reconsider the cause in light of Senate Bill 620’s 

recent amendments to section 12022.53. 

On October 11, 2017, the Governor signed Senate Bill 620, 

which amends section 12022.53 to give trial courts the authority 

to strike in the interests of justice a firearm enhancement 

allegation found true under that statute. Effective January 1, 

2018, section 12022.53, subdivision (h), was amended to state: 

“The court may, in the interest of justice pursuant to Section 

1385 and at the time of sentencing, strike or dismiss an 

enhancement otherwise required to be imposed by this section. 

The authority provided by this subdivision applies to any 

resentencing that may occur pursuant to any other law.” (Stats. 

2017, ch. 682, § 2.) 

Pursuant to In re Estrada (1965) 63 Cal.2d 740, we hold 

that the section 12022.53, subdivision (h), amendment applies 

here. Under Estrada, courts presume that, absent evidence to 

the contrary, the Legislature intends an amendment reducing 

punishment under a criminal statute to apply retroactively to 

cases not yet final on appeal. (Id. at pp. 747–748; see People v. 

Brown (2012) 54 Cal.4th 314, 324.) Estrada has been applied not 

only to amendments reducing the penalty for a particular offense, 

but also to amendments giving the court the discretion to impose 

a lesser penalty. (People v. Francis (1969) 71 Cal.2d 70, 75.) 
32

Furthermore, because this opinion will be issued after January 1, 

2018, the issue is now ripe. Although we express no opinion as to 

how the trial court should exercise its newly granted discretion 

under section 12022.53, subdivision (h), we do conclude that the 

trial court must exercise this discretion in the first instance.21 

DISPOSITION

The trial court’s order denying Bobby Watts’s new trial 

motion is affirmed in part and reversed in part. The order is

reversed with respect to the gang enhancement allegation (Pen. 

Code, § 186.22, subd. (b)(1)(C)) and the firearm enhancement 

(Pen. Code, § 12022.53). The trial court is directed to (1) conduct 

a limited rehearing as to whether the evidence was sufficient to 

sustain the jury’s true finding as to the gang enhancement

allegation and (2) hold a sentencing hearing to consider whether, 

pursuant to Penal Code section 12022.53, subdivision (h), to 

strike or dismiss an enhancement otherwise required by Penal 

Code section 12022.53. The trial court shall also recalculate

Watts’s pretrial custody credits at that time. In all other 

respects, the order is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J. LUI, J.

 

21 The People filed a supplemental brief after the Supreme 

Court remanded the case and agree with this result.