Filed 9/30/19

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ANDERSON,

Defendant and Appellant.

B282048

(Los Angeles County

Super. Ct. No. TA138556)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Tammy Chung Ryu, Judge. Affirmed in part 

and remanded with directions.

Michael Allen and Mark R. Yanis, 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 

Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Robert Anderson appeals the judgment entered following a 

jury trial in which he was convicted of two counts of attempted 

premeditated murder (Pen. Code,1 §§ 187, subd. (a)/664; count 1, 

Tony Rivas, & count 4, Carlos Manzur); two counts of shooting at 

an occupied motor vehicle (§ 246; counts 2 & 3); conspiracy to 

commit a crime (dissuading a witness) (§§ 182, subd. (a)(1), 136.1, 

subd. (a); count 5); and attempting to dissuade a witness (§ 136.1, 

subd. (a)(2); count 6). As to both attempted murders the jury 

found true the allegations that appellant had personally used a 

firearm (§ 12022.53, subd. (b)) and personally discharged a 

firearm (§ 12022.53, subd. (c)). With respect to the attempted 

murder in count 1, the jury also found true the allegation that the 

personal and intentional discharge of a weapon caused great 

bodily injury to Rivas. (§ 12022.53, subd. (d).) The trial court 

sentenced appellant to an indeterminate term of 55 years to life 

plus a consecutive determinate term of 21 years 8 months.

Appellant contends: (1) The trial court violated appellant’s 

confrontation rights by preventing defense counsel from 

confronting Rivas with evidence he was giving false testimony 

and by admonishing Rivas outside the jury’s presence regarding 

his comportment as a witness; (2) The trial court’s failure to 

instruct the jury on the lesser included offense of attempted 

voluntary manslaughter violated appellant’s constitutional 

rights, requiring reversal because the error relieved the 

prosecution of the burden of proving each element beyond a 

reasonable doubt; and (3) The trial court violated appellant’s due 

process rights when it erroneously instructed the jury pursuant 

1 Undesignated statutory references are to the Penal Code.
3

to CALCRIM No. 315 to consider witnesses’ level of certainty in 

identifying appellant. We disagree and affirm the judgment of 

conviction.

Appellant further requests this court to conduct an 

independent review of the trial court’s in camera Pitchess2

hearing in his first trial. We have conducted our review and 

conclude the trial court did not abuse its discretion in ruling 

there was no discoverable information. Finally, appellant 

contends, and respondent agrees that, in light of Senate Bill 

No. 620,3 the matter must be remanded to allow the trial court to 

exercise its discretion as to the formerly mandatory firearm 

enhancements imposed under section 12022.53.

FACTUAL BACKGROUND

The attempted murders

On May 3, 2015, about 11:30 a.m., Tony Rivas parked his 

red Volkswagen in front of the driveway of the San Pedro Market, 

blocking the exit from the market’s parking lot. Rivas and his 

passenger, Carlos Manzur, went into the market to make a 

purchase. When Rivas and Manzur returned to their car, two 

women in a white Buick whose car was blocked from exiting the 

parking lot began yelling at Rivas. The women insulted Rivas,

calling him a “fucking Mexican”; Rivas responded, “Fucking 

nigger,” and drove away. The white Buick followed Rivas’s car at 

a close distance as Rivas drove north on San Pedro Street. When 

Rivas made a U-turn at 118th Street, the Buick did the same and 

continued behind Rivas as he proceeded south on San Pedro.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

3 Statutes 2017, chapter 682, section 2.
4

As they drove, Rivas and Manzur saw one of the women in 

the Buick speaking on a phone. After a few turns, Rivas noticed 

a white truck behind his car in front of the Buick. The truck 

followed the Volkswagen to 124th Street, where Rivas stopped

near the middle of the road facing Avalon Boulevard. The truck 

stopped on the passenger side about 8 to 13 feet behind Rivas’s 

car. Rivas testified that the truck was a full size, double cab 

Chevy pickup truck, which was taller than Rivas’s car.

When the vehicles came to a stop on 124th Street, the 

driver of the truck yelled, “Did you have a problem with my 

mom?” or words to that effect. Rivas replied, “I don’t have a 

problem with your mother. I don’t have a problem with you.” 

The driver then brandished a chrome nine-millimeter handgun4

and pointed it at the Volkswagen. Rivas pleaded with the driver 

not to shoot, but as Rivas pulled his car slightly forward, the 

driver fired the gun through the rear passenger window of the 

Volkswagen. The bullet broke the window, passed through the

Volkswagen’s driver’s seat, and struck Rivas in the back, causing 

him to bleed profusely and lose feeling in his legs and feet.5 The 

gun appeared to jam as the driver tried to fire a few more times.

4 Police recovered seven .45 caliber bullet casings on 124th 

Street west of Avalon Boulevard. Although the barrel widths 

differ, when viewed from the side, a .45 caliber handgun and a 

nine-millimeter handgun appear virtually indistinguishable.

5 The bullet that lodged in Rivas’s back damaged two of his 

spinal cord nerves. As a result, Rivas was unable to walk when 

he was discharged from the hospital, and at the time of trial 

nearly two years after the shooting he still had no feeling in his 

right leg, he needed crutches to walk, and he used a wheelchair.
5

The truck then pulled forward, made a U-turn at Avalon 

Boulevard and drove back toward Rivas’s car. Rivas told Manzur 

he had been hit and to get out of the car. Manzur exited the 

vehicle and ran as several shots were fired in his direction. As 

Rivas sat in his car unable to move his legs, the driver of the 

truck fired twice more at the Volkswagen, striking the driver’s 

side door.

The shooting at the food truck

Shirley Diaz Andrade was in her food truck parked on 

Avalon Boulevard at 124th Street when she heard a gunshot and 

saw a red car and a white pickup truck behind it on 124th Street. 

She saw the truck pull in front of the red car and make a U-turn. 

The driver of the truck held a gun outside the window and fired 

three more times at the red car. The shooter then pointed his 

gun toward the food truck and fired. Andrade dropped to the 

floor and heard a bullet hit the door of her truck.

The investigation

Andrade was unable to identify the driver of the truck but 

described him as a Black male wearing a white sleeveless T-shirt. 

She described the truck as a white four-door Chevy Silverado 

pickup with a black towing apparatus on the rear. She 

memorized the last three digits of the truck’s license plate (568).

Using the partial license plate number of the truck 

provided by Andrade, police located a white GMC pickup truck 

with the license plate 8X24568 that matched the description of 

the suspect vehicle.6 DMV records showed the truck registered 

6 Rivas, Manzur, and Andrade identified that truck as the 

vehicle used in the shooting.
6

to appellant, who lived next to the San Pedro Market on 119th 

Street.

Both Rivas and Manzur identified appellant in a six-pack 

photo array as the driver of the pickup truck who followed the red 

Volkswagen and shot at them. Rivas and Manzur also identified 

appellant as the shooter at the preliminary hearing, in the first 

trial in October 2016, and at trial.

Surveillance video from the San Pedro Market before the 

shooting showed Rivas and the occupants of the Buick exchange 

words in the parking lot, Rivas’s execution of a U-turn, and the 

Buick following the Volkswagen. Another surveillance video from 

a different angle showed the Buick in the parking lot, the truck 

parked in front of appellant’s house on the street, and appellant 

wearing a white sleeveless T-shirt speaking with the women in 

the Buick. After the Buick could be seen driving toward San 

Pedro Street, the video showed appellant walking through the 

market parking lot talking on the phone, walking back from the 

San Pedro Street side of the market, running in the direction of 

his residence and the truck, and the truck driving away. The 

video then showed the truck returning from the direction of San 

Pedro Street sometime later.

The jail phone calls

At the preliminary hearing, Rivas testified that a woman

had visited his home and told “him not to testifyor come to 

court.” The woman was identified as Amanda Hegarty, whom

appellant had called numerous times from jail between 

November 2015 and January, sometimes using another inmate’s 

booking number to place the calls. Among other things, appellant 

and Hegarty discussed how Rivas might be persuaded not to 

testify that appellant was the shooter.
7

The defense case

Appellant testified. He admitted the truck belonged to him 

and agreed that he could be seen in the surveillance video

walking across the San Pedro Market parking lot talking on the 

phone, but he denied driving the truck the morning of May 3, 

2015, and he denied that he was the shooter. Rather, appellant 

explained that his friend Davion had borrowed the truck the 

night before, and after returning the next morning had driven it 

off again without permission.

On the morning of the shooting, Davion parked the truck in 

front of appellant’s house but sat in the vehicle for over an hour. 

Two women came to appellant’s house to look at a Chevy Malibu 

appellant had for sale. Davion was still in the truck as appellant 

was showing the car to the women, who complained that Davion 

had not told them there was so much wrong with the car. The 

women left without purchasing the Malibu and walked back to 

the white Buick, which was parked in the San Pedro Market 

parking lot. Appellant followed the women to their car and gave 

them directions to another person in the neighborhood who sold 

Saturns for less than appellant was asking for the Malibu. As 

appellant was walking back in the direction of his house after the 

women had left, he called the other car seller. In subsequent 

testimony appellant stated that as he was leaving the parking 

lot, he was calling his friend, “O,” who had recently had a heart 

attack.

Just as appellant ran back to his house, Davion drove away 

in appellant’s truck.

Rivas lived on 119th Street, a few houses down from 

appellant on the same side of the street. Rivas was known in the 

neighborhood as “Happy,” and he and appellant were acquainted. 
8

Appellant testified that the purpose of the phone calls with 

Hegarty was to get Rivas to come to court so that Rivas would 

recognize that appellant was not the man who shot him.

DISCUSSION

I. The Exclusion of Rivas’s Prior Inconsistent 

Testimony and the Trial Court’s Admonition of 

Rivas Outside the Jury’s Presence

Appellant contends the trial court violated his 

confrontation rights by preventing defense counsel from 

impeaching Rivas with prior inconsistent testimony from the 

preliminary hearing, which would have demonstrated Rivas was 

giving false testimony at trial. Although erroneous, we conclude 

the court’s limitation on this impeachment was harmless beyond 

a reasonable doubt. Appellant further contends that by 

admonishing Rivas outside the jury’s presence, the trial court 

improperly prevented the defense from demonstrating Rivas’s 

hostile demeanor under questioning, thereby violating appellant’s 

right to confront this key witness. However, having failed to 

object on this or any ground, appellant forfeited the claim.

A. The erroneous limitation on the impeachment of 

Rivas was harmless beyond a reasonable doubt

1. Relevant background

At the preliminary hearing the prosecutor asked Rivas 

what he saw when the white truck was stopped. Rivas 

responded, “I saw the gun. It got stuck and he was making it 

unstuck. I saw that he had the gun outside, and I thought it was 

a policeman and I thought he’s gonna kill me.” The court 

sustained defense counsel’s objection that the testimony was 

nonresponsive and granted the request to strike it.
9

At trial Rivas denied testifying previously that he believed 

the shooter was a police officer, proclaiming, “No. No. I never 

said that. No. Why would I accuse him of being a police officer 

when he confronted me that if I had had a problem with his 

mother or with him? Why would I confuse someone that was 

going to kill me with a police officer? No. No. No.” When 

defense counsel sought to impeach Rivas with his preliminary 

hearing testimony, the prosecutor requested a sidebar conference.

At sidebar the trial court observed, “It looks like that 

portion of the testimony was stricken.” Defense counsel pointed 

out that the objection had been sustained because the testimony 

was nonresponsive. The trial court then ruled that defense 

counsel could ask Rivas if he had testified he thought the shooter 

was a police officer, but he could not refer to the preliminary 

hearing transcript because Rivas’s answer had been stricken and 

“should have been struck from the record.” The trial court 

explained, “If it’s stricken, then you cannot refer to it. And I 

don’t know exactly how the court reporter’s supposed to do it. If 

it’s stricken, it’s supposed to be—not appear on the record in the 

transcript.”

When cross-examination resumed, defense counsel asked 

Rivas, “Your testimony is you have never said in court that you 

thought the person who was shooting at you was a police officer?” 

The trial court then sustained the prosecutor’s objection on the 

ground that the question had been “asked and answered.”

2. The trial court erred in preventing the defense from 

impeaching Rivas with his prior inconsistent statement, but the 

error was harmless beyond a reasonable doubt

The trial court incorrectly reasoned that the portion of 

Rivas’s preliminary hearing testimony which was stricken had 
10

ceased to exist and therefore could not be used for impeachment. 

To the contrary, although Rivas’s statement was inadmissible for 

its truth as prior testimony, Rivas nevertheless spoke the words—

“I thought it was a policeman and I thought he’s gonna kill me”—

and those words were admissible to impeach Rivas’s trial 

testimony that he never made such a statement. (People v. 

Corella (2004) 122 Cal.App.4th 461, 470, 471 [witness’s “words 

were stricken as testimony but continued to constitute her 

‘statement,’ ” admissible for impeachment].)

Assuming without deciding that the trial court’s improper 

limitation on impeachment infringed appellant’s confrontation 

rights, the error does not warrant reversal in this case.

“ ‘ “Confrontation clause violations are subject to federal 

harmless-error analysis under Chapman v. California (1967) 386 

U.S. 18, 24.” [Citation.] We ask whether it is clear beyond a 

reasonable doubt that a rational jury would have reached the 

same verdict absent the error.’ ” (People v. Livingston (2012) 53 

Cal.4th 1145, 1159; People v. Bryant, Smith and Wheeler (2014) 

60 Cal.4th 335, 395.) “ ‘The correct inquiry is whether, assuming 

that the damaging potential of the cross-examination were fully 

realized, a reviewing court might nonetheless say that the error 

was harmless beyond a reasonable doubt. Whether such an error 

is harmless in a particular case depends upon a host of factors, 

all readily accessible to reviewing courts. These factors include 

the importance of the witness’ testimony in the prosecution’s 

case, whether the testimony was cumulative, the presence or 

absence of evidence corroborating or contradicting the testimony 

of the witness on material points, the extent of cross-examination 

otherwise permitted, and, of course, the overall strength of the 

prosecution’s case.’ ” (People v. Greenberger (1997) 58 
11

Cal.App.4th 298, 350, quoting Delaware v. Van Arsdall (1986) 

475 U.S. 673, 684.)

Applying these factors to the instant case, we find the 

court’s error was harmless.

Rivas’s testimony was central to the prosecution’s case, and 

he was subjected to extensive cross-examination. He was also 

impeached numerous times with prior inconsistent statements as 

well as with a prior conviction for possession of cocaine for sale in 

the 1980’s. Inconsistencies in Rivas’s account of the incident, his 

willingness to deny giving testimony that plainly appeared on the 

record of prior proceedings, and Rivas’s belligerence under crossexamination were on full display throughout Rivas’s testimony. 

In one such instance, after testifying that before May 3, 2015, he 

had seen appellant driving the white truck past his house, Rivas 

was impeached with his preliminary hearing testimony that he 

had never seen appellant or his truck before the day of the 

shooting. Not only did Rivas contradict his prior testimony, but 

he denied ever making such a statement. At other points Rivas 

was impeached with prior testimony about the sequence of events

when Rivas exchanged insults with the women in the Buick, 

when he first saw the white truck following him, and with prior 

testimony that he was never afraid because he was a “beast” and 

a “bad ass.”

The prosecution presented fairly compelling evidence that 

appellant was the shooter. Apart from the excluded statement 

that he thought the shooter was a police officer, Rivas positively 

identified appellant as the shooter from a photo six-pack before 

trial, at the preliminary hearing, and at trial. Rivas’s testimony 

was consistent with Manzur’s, who also identified appellant as 

the shooter from a photo line-up before trial, at the preliminary 
12

hearing, and at trial. The evidence established that appellant 

owned the truck used in the shooting, and appellant, who could 

be seen on surveillance video wearing a white tank top, matched 

Andrade’s description of the shooter as African-American and 

wearing a white sleeveless shirt. The surveillance video also 

showed appellant speaking to the two women in the Buick, 

walking through the market parking lot with a phone to his ear,

and then running in the direction of his residence and truck. 

Immediately thereafter the truck could be seen driving away.

Finally, appellant testified that he was not the shooter,

offering his friend Davion as the likely culprit. The jury was not 

required to accept appellant’s account, however. Indeed, a

rational trier of fact could disbelieve any portions of appellant’s 

testimony that it deemed self-serving and draw any contrary 

inferences supported by the evidence. (People v. Silva (2001) 25 

Cal.4th 345, 369; People v. Ewing (2016) 244 Cal.App.4th 359, 

378; see U.S. v. Selby (9th Cir. 2009) 557 F.3d 968, 976

[“ ‘[d]isbelief of a defendant’s own testimony may provide at least 

a partial basis for a jury’s conclusion that the opposite of the 

testimony is the truth’ ”].)

Under these circumstances, we conclude that the trial 

court’s improper limitation on Rivas’s impeachment to be 

harmless beyond a reasonable doubt. (People v. Brown (2003) 31

Cal.4th 518, 546.)

B. Appellant forfeited any claim based on the trial 

court’s admonition of Rivas outside the presence of the jury

1. Relevant background

Defense counsel’s cross-examination of Rivas frequently 

elicited rambling nonresponsive answers and outbursts, 

prompting the court to admonish Rivas on multiple occasions. 
13

Finally, Rivas declared, “I don’t even want to answer anymore 

because those questions are not worth it anymore.” At this, the 

court promptly took a break and admonished Rivas outside the 

presence of the jury:

“You have been subpoenaed to testify as a witness whether 

you like it or not. And as a witness [the] only job you have is to 

answer the questions. You may not understand . . . why these 

questions are being asked. But that is not a reason for you to get 

frustrated or not answer the questions. . . . You have to answer 

the questions. [¶] And you’re making it go longer and longer by 

trying to just say what you want to say instead of answering the 

questions. You need to answer the questions the attorneys are 

asking whether you like the question or not.” “My observation is, 

when you don’t like the question, you start saying something else. 

Or you’re going ahead and trying to anticipate what the question 

is going to be. But that’s not what you can do as a witness in the 

case.” The court added, “I don’t want to keep stopping you 

because I’ve already done it several times. I don’t like to do that 

with a witness. Because I don’t want the jurors to have any—

develop any opinions just because they see me interrupting you.”

2. Because appellant did not object below the claim is 

forfeited

Appellant did not object to the court admonishing Rivas 

outside the jury’s presence at all, much less on the ground that 

the procedure violated his right to confrontation. Hence, the 

claim is forfeited. (People v. Smith (2001) 24 Cal.4th 849, 852 

[“As a general rule, only ‘claims properly raised and preserved by 

the parties are reviewable on appeal’ ”].)
14

II. The Trial Court Had No Sua Sponte Duty to 

Instruct on Attempted Voluntary Manslaughter 

Based on Heat of Passion

Appellant contends the trial court erred in omitting 

instruction on attempted voluntary manslaughter on the basis of 

its mistaken belief that attempted voluntary manslaughter is not 

a lesser included offense of attempted murder. According to 

appellant, the trial court had a sua sponte duty to instruct the 

jury on attempted voluntary manslaughter based on heat of 

passion, and its failure to do so violated appellant’s Sixth 

Amendment right to have the jury decide every element of the 

offense. We disagree.

A. The trial court’s duty to instruct

It is settled that in a criminal case, even absent a request, 

“a trial court is obligated to instruct the jury on all general 

principles of law relevant to the issues raised by the evidence. 

[Citation.] It is error for a trial court not to instruct on a lesser 

included offense when the evidence raises a question whether all 

of the elements of the charged offense were present, and the 

question is substantial enough to merit consideration by the 

jury.” (People v. Booker (2011) 51 Cal.4th 141, 181; People v. 

Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)

However, “ ‘[a]n instruction on a lesser included offense 

must be given only if there is substantial evidence from which a 

jury could reasonably conclude that the defendant committed the 

lesser, uncharged offense, but not the greater, charged offense.’ ”

People v. Nelson (2016) 1 Cal.5th 513, 538 (Nelson).) “The 

‘substantial evidence requirement is not satisfied by “ ‘any

evidence . . . no matter how weak’ ” ’ ” (ibid.), and “[s]peculative, 

minimal, or insubstantial evidence is insufficient to require an 
15

instruction on a lesser included offense” (People v. Simon (2016) 1 

Cal.5th 98, 132). “On appeal, we review independently the 

question whether the trial court improperly failed to instruct on a 

lesser included offense.” (People v. Souza (2012) 54 Cal.4th 90, 

113.)

B. Attempted voluntary manslaughter as a lesser 

included offense of attempted murder

“ ‘Murder is the unlawful killing of a human being . . . with 

malice aforethought.’ (§ 187, subd. (a).) ‘Manslaughter is the 

unlawful killing of a human being without malice.’ (§ 192, 

subd. (a).) Manslaughter is a lesser included offense of murder, 

and a defendant who commits an intentional and unlawful killing 

but who lacks malice is guilty of voluntary manslaughter. Heat 

of passion is one of the mental states that precludes the 

formation of malice and reduces an unlawful killing from murder 

to manslaughter.” (Nelson, supra, 1 Cal.5th at p. 538;

Breverman, supra, 19 Cal.4th at p. 154.) Just as voluntary 

manslaughter is a lesser included offense of murder, so too is 

attempted voluntary manslaughter a lesser included offense of 

attempted murder. (People v. Millbrook (2014) 222 Cal.App.4th 

1122, 1137 [“the offense of attempted murder is reduced to the 

lesser included offense of attempted voluntary manslaughter 

when the defendant acted upon a sudden quarrel or in the heat of 

passion”]; see People v. Gutierrez (2003) 112 Cal.App.4th 704, 

708–709.)

Our Supreme Court has explained: “A heat of passion 

theory of manslaughter has both an objective and a subjective 

component. [Citations.] [¶] ‘ “To satisfy the objective or 

‘reasonable person’ element of this form of voluntary 

manslaughter, the accused’s heat of passion must be due to 
16

‘sufficient provocation.’ ” ’ ” (People v. Moye (2009) 47 Cal.4th 

537, 549 (Moye).) Legally sufficient provocation is that which 

“ ‘causes a person to act, not out of rational thought but out of 

unconsidered reaction to the provocation.’ [Citation.] Further, 

the ‘proper standard focuses upon whether the person of average 

disposition would be induced to react from passion and not from 

judgment.’ ” (Nelson, supra, 1 Cal.5th at p. 539.)

“For purposes of the heat of passion doctrine, ‘provocation 

is sufficient not because it affects the quality of one’s thought 

processes, but because it eclipses reflection. A person in this 

state simply reacts from emotion due to the provocation, without 

deliberation or judgment.’ [Citation.] The standard requires 

more than evidence that a defendant’s passions were aroused. 

The facts and circumstances must be ‘ “sufficient to arouse the 

passions of the ordinarily reasonable man.” ’ ” (Nelson, supra, 1 

Cal.5th at p. 539.)

As for the subjective element of voluntary manslaughter 

based on provocation, the high court has explained that the 

defendant “must be shown to have killed while under ‘the actual 

influence of a strong passion’ induced by such provocation.” 

(Moye, supra, 47 Cal.4th at p. 550; Nelson, supra, 1 Cal.5th at 

p. 539.) The court has emphasized that “[i]t is not sufficient that 

a person ‘is provoked and [then] later kills.’ ” (Nelson, at p. 539.)

Rather, where “ ‘ “sufficient time has elapsed between the 

provocation and the fatal blow for passion to subside and reason 

to return, the killing is not voluntary manslaughter.” ’ ” (Moye, 

supra, 47 Cal.4th at p. 550, quoting Breverman, supra, 19 Cal.4th 

at p. 163.)
17

C. Substantial evidence did not support instruction on 

attempted voluntary manslaughter in the present case

Appellant’s claim fails because there was insufficient 

evidence in this case to support either the objective or the

subjective element of attempted voluntary manslaughter based 

on heat of passion.

Appellant argues that Rivas’s use of the words “fucking 

nigger” during the verbal altercation with the two women in the 

Buick “might easily have provoked an ordinary reasonable 

[B]lack man in this neighborhood to act rashly and without 

deliberation, and from passion rather than judgment.” However, 

the objective standard is not the reaction of a reasonable Black 

man in appellant’s neighborhood. As our Supreme Court has 

long held in determining whether a provocation meets the 

objective standard for voluntary manslaughter, “no defendant 

may set up his own standard of conduct and justify or excuse 

himself because in fact his passions were aroused.” (People v. 

Logan (1917) 175 Cal. 45, 49; People v. Cole (2004) 33 Cal.4th 

1158, 1215–1216 [same]; see People v. Enraca (2012) 53 Cal.4th 

735, 759 (Enraca) [“standard is not the reaction of a ‘reasonable 

gang member’ ”]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 

[passion for revenge will not reduce murder to manslaughter].)

In this regard, appellant’s reliance on People v. Millbrook,

supra, 222 Cal.App.4th 1122 is misplaced. There, the victim had 

been aggressive throughout the night of the party and had made 

threatening statements and engaged in shouting matches with 

other guests before arguing with the defendant. (Id. at p. 1141.) 

Immediately before the shooting, the victim escalated the fight 

with the defendant, and with his fists clenched, lunged at the 

defendant, who then shot him. (Ibid.) The appellate court held 
18

this evidence sufficient to permit a jury to conclude that a 

reasonable person in the defendant’s position could have acted in 

the heat of passion, thus warranting instruction on voluntary 

manslaughter. (Id. at pp. 1141–1143.)

Here, by contrast, Rivas insulted two women outside of 

appellant’s presence,7 but did not threaten or engage in any 

physical violence. In such situations, our Supreme Court has 

repeatedly rejected arguments that insults “would induce 

sufficient provocation in an ordinary person to merit an 

instruction on voluntary manslaughter.” (Enraca, supra, 53 

Cal.4th at p. 759; People v. Gutierrez (2009) 45 Cal.4th 789, 826

(Gutierrez) [“a voluntary manslaughter instruction is not 

warranted where the act that allegedly provoked the killing was 

no more than taunting words”]; People v. Avila (2009) 46 Cal.4th 

680, 706 [gang challenge insufficient provocation]; People v. 

Manriquez (2005) 37 Cal.4th 547, 586 [name calling and taunting 

defendant to use weapon insufficient provocation].) In short, a 

provocation, “ ‘such as words of reproach, however grievous they 

may be, . . . is not recognized as sufficient to arouse, in a 

reasonable man, such passion as reduces an unlawful killing with 

a deadly weapon to manslaughter.’ ” (People v. Wells (1938) 10 

Cal.2d 610, 623.)

Not surprisingly, appellant does not even argue that the 

subjective component of heat of passion was satisfied here. Not 

only was evidence completely lacking that appellant shot at Rivas 

7 There is no evidence to support appellant’s statement that 

either of these women was appellant’s “loved one,” much less the 

speculation that appellant might have witnessed the exchange.
19

and Manzur “ ‘while under “the actual influence of a strong 

passion” induced by [objectively sufficient] provocation’ ” (Enraca, 

supra, 53 Cal.4th at p. 759), but appellant’s state of mind was 

never in issue or argued by the defense. Indeed, appellant

presented evidence completely at odds with a heat of passion 

defense: He averred that he had never seen the women before, he 

refuted that either was a relative of his, he denied receiving a 

phone call from any woman telling him she had just been called a 

“nigger,” and he categorically denied any knowledge of the 

altercation in the parking lot or any name-calling between Rivas 

and the women. In short, appellant vehemently denied any 

involvement with the shooting, suggesting instead that his friend 

Davion had taken appellant’s truck and shot Rivas.

In light of this defense, the only issue at trial on the 

attempted murder charges was appellant’s identity as the 

shooter. “ ‘A trial court need not, however, instruct on lesser 

included offenses when the evidence shows that the defendant is 

either guilty of the crime charged or not guilty of any crime (for 

example, when the only issue at trial is the defendant’s identity 

as the perpetrator). Because in such a case “there is no evidence 

that the offense was less than that charged” [citation], the jury 

need not be instructed on any lesser included offense.’ ” 

(Gutierrez, supra, 45 Cal.4th at pp. 825–826.) As another court 

explained, “When defendant denied he shot the [victim], none of 

the alleged evidence of heat of passion . . . was of the type ‘that a 

reasonable jury could find persuasive.’ [Citation.] Simply stated,

the duty to instruct on inconsistent defenses does not extend to 

cases such as this where the sworn testimony of the accused 

completely obviates any basis for finding a lesser included 

offense.” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1021–
20

1022; People v. Gutierrez, supra, 112 Cal.App.4th at p. 709 

[“Generally, when a defendant completely denies complicity in 

the charged crime, there is no error in failing to instruct on a 

lesser included offense”].)

III. CALCRIM No. 315

Appellant contends the trial court denied his due process 

rights by instructing pursuant to CALCRIM No. 315 that a 

witness’s level of certainty is a factor to consider in evaluating 

the accuracy of identification testimony. Appellant argues that 

this portion of the instruction is contrary to empirical studies 

that show witness certainty has no correlation with accuracy and 

is legally incorrect. This precise issue is currently pending before 

the California Supreme Court in People v. Lemcke, review 

granted October 10, 2018, S250108 (Lemcke).

CALCRIM No. 315 directs the jury in evaluating 

eyewitness identification testimony to consider a number of

questions, including, “How certain was the witness when he or 

she made an identification?” Respondent contends appellant

forfeited any challenge to the instruction by failing to object. The 

predecessor to CALCRIM No. 315 is CALJIC No. 2.92, which tells 

the jury to consider any factor that “bear[s] upon the accuracy of 

the witness’ identification of the defendant, including, . . . [¶] . . . 

[¶] [t]he extent to which the witness is either certain or uncertain 

of the identification.” At the time of trial in this case, the 

California Supreme Court had upheld the inclusion of the 

certainty factor in CALJIC No. 2.92 on at least two occasions. 

(People v. Sánchez (2016) 63 Cal.4th 411, 461–463 (Sánchez); 

People v. Johnson (1992) 3 Cal.4th 1183, 1231–1232; see People v. 

Wright (1988) 45 Cal.3d 1126, 1144 [upholding CALJIC No. 2.92 

in its entirety, including the certainty factor].) Given this 
21

precedent we reject respondent’s forfeiture argument as any 

objection to the certainty factor in CALCRIM No. 315 would have 

been futile. (See People v. Penunuri (2018) 5 Cal.5th 126, 166; 

People v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not 

required to proffer futile objections”].)

However, the same precedent mandates that we reject 

appellant’s claim on its merits. In approving the use of certainty 

as a factor in evaluating eyewitness identifications, our Supreme 

Court has recently explained: “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. [Citation.] In People v. Wright (1988) 45 Cal.3d 

1126, 1141, we held ‘that a proper instruction on eyewitness 

identification factors should focus the jury’s attention on facts 

relevant to its determination of the existence of reasonable doubt 

regarding identification, by listing, in a neutral manner, the 

relevant factors supported by the evidence.’ We specifically 

approved CALJIC No. 2.92, including its certainty factor. 

(Wright, at pp. 1144, 1166 [appendix].) We have since reiterated 

the propriety of including this factor. (People v. Johnson (1992) 3 

Cal.4th 1183, 1231–1232.)” (Sánchez, supra, 63 Cal.4th at 

p. 462.)

Our Supreme Court is now considering whether the 

certainty factor as articulated in CALCRIM No. 315 remains 

valid. In its grant of review in Lemcke, the high court framed the 

issue as follows: “Does instructing a jury with CALCRIM No. 315 

that an eyewitness’s level of certainty can be considered when 

evaluating the reliability of the identification violate a 
22

defendant’s due process rights?” 

(<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScr

een.cfm?dist=0&doc_id=2257737&doc_no=S250108&request_toke

n=NiIwLSIkTkw2WyBNSCMtWEpIUFQ0UDxTJiJeQzpRMCAg

Cg%3D%3D&bck=yes> [as of Sept. 20, 2019], archived at 

<https://perma.cc/R9SE-5PUM>.)

Appellant “trusts” that in Lemcke our Supreme Court will 

invalidate CALCRIM No. 315 to the extent it encourages the jury 

to consider a witness’s certainty in making an identification, and 

asks us to anticipate that outcome in this case. Sánchez, 

however, remains good law. Unless and until the Supreme Court 

changes that law, we are bound by its holding that including the 

certainty factor in instructions on eyewitness identification is not 

error. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 

450, 455.)

IV. Pitchess

Prior to the first trial the trial court granted a defense 

motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531

(Pitchess) for a review of the personnel records of Detective 

Sanchez, the Spanish-speaking detective who assisted and 

translated when Manzur was interviewed by police. Following an 

in camera review of the requested records to determine if they 

contained evidence of misconduct involving “misstating the 

evidence, preparing false police reports, lying, [or] 

untruthfulness,” the trial court found no discoverable 

information.

Appellant asks this court to conduct an independent review 

of the in camera hearing on the Pitchess motion. Respondent 

contends that appellant forfeited the right to independent review 

on appeal because he failed to renew his Pitchess motion before 
23

the second trial. However, assuming the request is not forfeited, 

respondent does not oppose an independent review by this court.

Because, as appellant points out, nothing in Detective 

Sanchez’s personnel file had changed since the trial court found it 

contained no discoverable information, there was no basis for the 

defense to renew its Pitchess motion prior to the second trial, and 

no reasonable likelihood of a different outcome. To hold 

appellant forfeited appellate review of the Pitchess ruling in these 

circumstances would require an idle act by the defense and a 

pointless exercise by the trial court. The law does not require 

idle acts. (Civ. Code, § 3532; People v. Financial Casualty & 

Surety, Inc. (2016) 2 Cal.5th 35, 48.)

We have reviewed the sealed record of the in camera 

proceedings and conclude the trial court satisfied its obligations 

in determining whether the requested records contained

discoverable information. No abuse of discretion occurred. (See

People v. Mooc (2001) 26 Cal.4th 1216, 1225.)

V. In Light of Senate Bill No. 620, the Matter Must Be 

Remanded to Enable the Trial Court to Exercise Its 

Discretion to Impose or Strike the Firearm 

Enhancements

The jury found true all five of the firearm enhancement 

allegations, and appellant’s sentence includes a consecutive 

indeterminate term of 25 years to life under section 12022.53, 

subdivision (d) and a consecutive determinate term of 20 years 

pursuant to section 12022.53, subdivision (c). The parties agree 

that in light of Senate Bill No. 620, the matter must be remanded 

to allow the trial court to exercise its discretion as to these 

formerly mandatory firearm enhancements.
24

On October 11, 2017, the Governor signed Senate Bill 

No. 620. (2017–2018 Reg. Sess.) Previously, section 12022.53 

required the imposition of specified sentencing enhancements 

based on a true finding that the defendant personally and 

intentionally discharged a firearm in the commission of a felony 

(§ 12022.53, subd. (c)) or personally and intentionally discharged 

a firearm causing great bodily injury (§ 12022.53, subd. (d)). The 

trial court had no discretion to strike any applicable 

enhancement. (Prior § 12022.53, subd. (h).) The legislation 

amends section 12022.53, subdivision (h) to remove the 

prohibition on striking a firearm enhancement, and allows the 

court “in the interest of justice pursuant to Section 1385 and at 

the time of sentencing, [to] strike or dismiss an enhancement 

otherwise required to be imposed by this section.” (Stats. 2017, 

ch. 682, § 2.)

Senate Bill No. 620 took effect on January 1, 2018, and the 

amendment to section 12022.53 applies retroactively to nonfinal 

judgments under the rule of In re Estrada (1965) 63 Cal.2d 740, 

745. (People v. Chavez (2018) 22 Cal.App.5th 663, 712 [“amended 

section 12022.53, subdivision (h) applies to all nonfinal 

judgments”].) Therefore, because the judgment of conviction in 

appellant’s case was not final when Senate Bill No. 620 took 

effect, appellant is entitled to the benefits of the amendments to 

section 12022.53.

At appellant’s sentencing in this case, the trial court gave 

no indication whether it would strike the firearm enhancements 

had it been aware of any discretion to do so. In such instances, 

remand for a new sentencing hearing is required. (People v. 

Almanza (2018) 24 Cal.App.5th 1104, 1110 [“[r]emand is required 

unless the record reveals a clear indication that the trial court 
25

would not have reduced the sentence even if at the time of 

sentencing it had the discretion to do so”]; People v. McDaniels

(2018) 22 Cal.App.5th 420, 425 [same].) Remand is therefore 

appropriate here to allow the trial court to exercise its discretion 

as to whether to strike or impose the firearm enhancements in 

accordance with section 12022.53, subdivision (h).

DISPOSITION

The judgment of conviction is affirmed. The matter is 

remanded with directions that the trial court exercise its 

discretion with respect to imposition of the firearm enhancement 

under Penal Code section 12022.53.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.