Filed 12/24/20 P. v. Canada CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

DEJON CANADA,

Defendant and Appellant.

B300611

(Los Angeles County

Super. Ct. No. BA458923)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Robert J. Perry, Judge. Affirmed as modified.

Sally Patrone Brajevich, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael C. Keller and William N. Frank, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

Appellant Dejon Canada was convicted of one count of 

voluntary manslaughter (Pen. Code, § 192, subd. (a))

1. The jury 

found true allegations that he personally and intentionally 

discharged a firearm (§ 12022.5, subd. (a). The trial court found 

true allegations that appellant served eight prior prison terms 

(§ 667.5, subd. (b)). The court sentenced appellant to a total of 

29 years in prison.

Appellant appeals from the judgment of conviction, 

contending 1) the trial court violated his constitutional rights by 

conducting hearings during his involuntary absence; 

2) insufficient evidence supports his conviction because the 

eyewitness testimony is so unreliable and the evidence 

establishes perfect self-defense as a matter of law; 3) the 

prosecutor committed misconduct during closing argument by 

referring to evidence outside the record, maligning defense 

counsel, and attempting to shift the burden of proof; 4) the 

section 667.5 prison priors must be stricken due to a change in 

the law; and 5) the trial court erred in imposing certain fines and 

fees without conducting an ability-to-pay hearing.

Respondent agrees, as do we, that the section 667.5 

enhancement terms must be stricken, reducing appellant’s total 

sentence to 21 years. We find no prejudicial error and so affirm 

the judgment of conviction in all other respects.

1 Further undesignated statutory references are to the Penal 

Code.
3

BACKGROUND

On October 16, 2016, several people were living in tents or 

other makeshift shelters on Ceres Avenue between 6th and 7th 

Streets in downtown Los Angeles. At about 1:30 a.m., Los 

Angeles Police Department (LAPD) officers responded to a call of 

shots fired in the vicinity of 7th and Ceres. There they discovered 

a gravely injured Ronald Pugh. Pugh had been shot in the 

shoulder and head. He was taken to a hospital and then a 

nursing home, where he died on June 20, 2107 from the gunshot 

wound to his head.

Police discovered four 9 mm shell casings and two expended 

projectiles in the area. One projectile was in a pool of blood. 

Police also found a .38 caliber firearm behind the rear passenger 

side wheel of a recreational vehicle parked on the street. This 

weapon did not fire the casings found at the scene. A private 

investigator swabbed the .38 caliber gun for DNA evidence to 

compare with a DNA sample from Pugh. No DNA evidence was 

introduced at trial by either side. An LAPD forensic fingerprint 

specialist tested the .38 caliber gun and the magazine inside it. 

There were no prints on the gun and no usable prints on the 

magazine.

Police spoke with a number of people at the scene. Three 

people living on Ceres testified at trial: Louis Grady, William 

Bird and Regina Davis.

Louis Grady was standing outside his tent on Ceres Avenue 

on the night of October 16, 2016. He testified he heard gunshots 

but did not see anything. He started to move toward the sound of 

the gunshots and saw appellant running down the street toward 

him. Grady had seen appellant in the area before. During direct 
4

examination Grady testified he did not see or hear an argument 

before the shooting.

At trial, Grady acknowledged he had discussed the shooting 

with LAPD Detective Jonathan Vander Lee. Grady did not 

remember details of his statements to the detective, and so the 

prosecutor played portions of that recorded interview. After 

listening to a portion of the recording, Grady testified he did 

overhear an argument right before the shooting. Grady claimed, 

however, not to remember making other statements on the tape. 

The court found Grady was not cooperating and was deliberately 

not remembering the interview. The court permitted the 

prosecutor to play Grady’s entire interview for the jury. The 

court reporter did not transcribe the contents of the tape, but the

record includes a copy of an unofficial transcript which was 

admitted into evidence.

According to the transcript, Grady told police he heard an 

argument between appellant and Pugh, walked closer to see what 

was happening, saw appellant fall, and then “[h]e come out with 

the gun, I saw him come out with the gun.” Appellant fired four 

or five times and Pugh fell to the ground. Appellant ran towards 

and turned onto 7th Street.

Direct examination of Grady ended with the prosecutor 

showing Grady a six-pack photographic line-up on which he had 

previously identified the shooter. The prosecutor asked Grady if 

he saw appellant shoot Pugh, and Grady replied, “Yes.”

On cross-examination, Grady gave a different account of 

events. In this account, appellant fell down, got up, and moved 

behind the van and out of Grady’s sight. Grady then heard 

gunshots and saw appellant running toward him.
5

Grady acknowledged he was in custody on an unrelated 

narcotics matter when detectives interviewed him. Grady denied 

he hoped to receive a benefit in that case by talking to detectives 

about this one. He admitted several prior criminal convictions.

2

On redirect, Grady affirmed he saw a gun in appellant’s 

hand, saw appellant move towards Pugh, heard gunshots, and 

then saw appellant run away; Grady did not see appellant pull 

the trigger.

William Bird was also present on Ceres on the night of 

October 16, 2016. In January 2017 he was interviewed by 

Detective Vander Lee. Bird told Detective Vander Lee he saw 

appellant produce a gun and fire several shots at Pugh. Bird said 

he did not see Pugh with a gun. Bird identified appellant from a 

six-pack photographic line-up. Bird also told Detective Vander 

Lee after that night appellant continued to come to the area with 

a gun and threaten people.

At trial, Bird gave a different account of the shooting, 

testifying that shortly before the shooting, he was outside his tent 

on Ceres Street, across the street and at a little bit of an angle to 

the location where Pugh was shot. Bird had seen appellant in the 

area on multiple occasions. He heard an argument between 

appellant and Pugh over money. The argument turned into a 

2 In his briefing, appellant cites Grady’s preliminary hearing 

testimony as if it were trial evidence. Appellant does not provide 

any citation to the reporter’s transcript where Grady was 

impeached at trial with his preliminary hearing testimony. In 

fact, one of appellant’s claims of error on appeal raises the trial 

court’s denial of his request for judicial notice of that transcript. 

Accordingly, in analyzing Grady’s claims, we do not consider his

preliminary hearing testimony.
6

fistfight. Bird was able to see the fight. He did not see the 

shooting. He was not really paying attention to the fight when he 

heard gunshots. He then ducked behind a parked car for cover. 

When the shooting stopped, Bird fled the block. Bird was 

impeached with his prior statements to Detective Vander Lee.

On cross-examination, defense counsel explored Bird’s 

many prior, mostly drug-related felony convictions. Bird also 

acknowledged he was a methamphetamine user who had used 

methamphetamine at about 5 p.m. before the early morning 

shooting. Bird testified that using methamphetamine did not 

affect what he saw and heard. Bird described the fistfight as 

both men throwing punches and no one falling down. He said the 

fight had stopped and Pugh was backing away when he was shot. 

Bird acknowledged he made his statement to Detective Vander 

Lee after he was arrested on unrelated charges.

Regina Davis was also present on Ceres Avenue when Pugh 

was shot. Pugh was the father of Davis’s child. She was familiar 

with appellant from living on Ceres Avenue. Davis testified to 

two interactions between Pugh and appellant. In the first 

interaction, Pugh asked appellant about money he owed to Pugh. 

Appellant did not respond and Pugh left. Less than 10 minutes 

later, Pugh returned with a friend named “Killer” and again 

asked for his money. Pugh patted appellant’s shirt pocket and 

said appellant had his money in the pocket. Pugh then pushed

appellant, knocking him backwards. Appellant almost fell, but 

caught himself. As he regained his balance, he pulled out a gun 

and fired multiple times at Pugh. Davis testified Pugh’s friend

“Killer” left before Pugh punched appellant. She also testified 

that she did not see Pugh with a gun.
7

On cross-examination, Davis acknowledged her true last 

name was Swingler and over the year she had used many aliases 

to obtain release after multiple arrests. Davis’s testimony was 

impeached with a statement she made at the scene of the 

shooting and statements she made in July 6, 2017 interview with 

Detective Vander Lee.3 At the scene, she may have told a law 

enforcement officer she did not see anything. Her statements at 

the July 6, 2017 interview were largely consistent with her trial 

testimony. Davis did tell detectives that Pugh’s current 

girlfriend searched Pugh’s body after he was shot and removed

Pugh’s supply of narcotics from his pocket.4

Appellant presented an alibi defense. His girlfriend Regina 

Clay testified she went to a wedding on October 15, 2016 and 

when she returned home at about 11:00 p.m., appellant was 

3 There is some ambiguity in the record about whether, due 

to technical difficulties, defense counsel was able to play the 

recording of Davis’s testimony from the scene. There is also 

ambiguity in the record about how much of the interview was 

played while Davis was on the stand; parts may have been played 

later.

4 Appellant repeatedly states that either Pugh or his 

companion had a gun. No one saw either man with a gun. At 

times Davis stated she believed Pugh had a gun; at other times 

she stated Pugh did not have a gun, but his companion did. 

However, she never claimed to have actually seen a gun. At 

times, her speculative belief seemed to be based on equally 

unfounded statements by others.

At most, a jury might have inferred Pugh had a gun 

because a gun was found underneath a nearby recreational 

vehicle. This would, at best, have been a weak inference because 

no physical evidence linked Pugh or anyone else to that gun.
8

there. They went to bed together and stayed at her home until 

8:00 or 9:00a.m. Clay did not live in downtown Los Angeles.

DISCUSSION

A. Appellant Was Not Prejudiced by Hearings Held in His 

Absence.

In his opening brief, appellant contended the trial court 

violated his state and federal constitutional rights to be present, 

to due process, and to confront adverse witnesses when the court 

decided legal issues during his involuntary absence on the 

morning of June 24, 2019. While appellant was absent from the 

courtroom, the trial court held a hearing on 1) what portions of a 

recorded interview appellant could use to impeach Davis during 

her cross-examination; 2) Alternate Juror No. 2’s request to be 

excused for financial hardship; and 3) appellant’s request that 

the court take judicial notice of Grady’s preliminary hearing 

testimony.

The Confrontation Clause of the United States Constitution 

guarantees a criminal defendant the right to be present for crossexamination of adverse witnesses, while the Due Process Clause 

guarantees “the right to be present at any stage of the criminal 

proceeding that is critical to its outcome if his presence would 

contribute to the fairness of the procedure.” (Kentucky v. Stincer

(1987) 482 U.S. 730, 740, 745.) The California Constitution 

provides similar protections. (People v. Romero (2008) 44 Cal.4th 

386, 418.)

Generally, a defendant does not have the right to be 

present at discussions which occur outside the presence of the 

jury and involve questions of law. (People v. Cole (2004) 

33 Cal.4th 1158, 1231; People v. Perry (2006) 38 Cal.4th 302, 312 
9

[“a defendant may ordinarily be excluded from conferences on 

questions of law, even if those questions are critical to the 

outcome of the case, because the defendant’s presence would not 

contribute to the fairness of the proceeding”].)

We independently review claims that implicate a 

defendant’s confrontation rights and deferentially review a trial 

court’s resolution of factual disputes involved in that claim. (See 

People v. Seijas (2005) 36 Cal.4th 291, 304.) The defendant bears 

the burden of showing “ ‘how this hearing was unfair or that his 

presence at the hearing would conceivably have changed the 

result.’ ” (Hovey v. Ayers (9th Cir. 2006) 458 F.3d 892, 902–903.)

1. Recorded Interview

At some point before the morning of June 24, 2019, 

appellant made a motion to introduce portions of a recorded 

interview of Davis. This motion was the first matter heard by the 

trial court on the morning of appellant’s absence. The trial court 

overruled the prosecutor’s objections, with the exception of one 

hearsay objection involving Davis’s repetition of another person’s 

statement to her. The prosecutor then sought to have an 

additional portion of the interview played. Defense counsel 

objected on hearsay grounds with which the trial court agreed. 

Thus, appellant’s motion to introduce portions of the Davis 

interview was highly successful. The only exception was the 

exclusion of one portion of the interview involving hearsay. This 

was a legal issue, and appellant could not have provided useful 

insight to his trial counsel on this topic. Put differently, even 

assuming for the sake of argument that the trial court erred in 

deciding this issue in appellant’s absence, there is no reasonable 

possibility that appellant would have obtained a more favorable 

outcome if he had been present.
10

2. Alternate Juror No. 2

Alternate Juror No. 2’s request to be excused due to 

financial hardship was the second matter considered by the court 

in appellant’s absence. In his Opening Brief, appellant contended 

the trial court decided to excuse the juror after hearing his

explanation of financial hardship, while appellant was absent. 

That is too narrow a view of events.

After questioning Alternate Juror No. 2, the court indicated

it would excuse the juror at 3 p.m. At the end of the day, 

however, the court asked Alternate Juror No. 2 to give it one 

more day. Alternate Juror No. 2 agreed to stay. At the end of the 

next day, June 25, 2019, Alternate Juror No. 2 again agreed to 

stay. After that deliberations began, and Alternate Juror No. 2 

was placed on call.

Although respondent points out in its brief that Alternate 

Juror No. 2 “withdrew” his request to be excused, appellant does 

not directly address this situation in his Reply Brief. He simply 

argues he should have been present to observe the interaction 

with the juror and evaluate the court’s response “before the court 

decided to release him.”

Taking appellant’s claim at its broadest, and assuming for 

the sake of argument that appellant had a right to be present 

during this interaction regardless of the ultimate outcome, 

appellant has not shown any prejudice from his absence. Leaving 

aside the specifics of the court’s ruling, no sitting juror sought to 

be excused during the remainder of the trial or during 

deliberations and there were no motions to dismiss any sitting 

jurors. Further, there was another alternate juror in the case. It 

cannot reasonably be inferred that Alternate Juror No. 2’s 
11

absence or presence could have inhibited or prompted sitting 

jurors to ask to be excused.

3. Grady’s Preliminary Hearing Testimony

The third matter considered by the court in appellant’s 

absence involved prosecution witness Grady. Appellant asked 

the court to take judicial notice of Grady’s preliminary hearing 

testimony where Grady testified the detective said he would talk 

to the district attorney about Grady’s pending case. When 

appellant made the request for judicial notice Grady had 

completed his trial testimony and had denied expecting to receive 

a benefit for his information. Appellant had not attempted to 

impeach Grady with his prior preliminary hearing testimony.5

5 During cross-examination, appellant asked Grady if he 

made statements to Detective Vander Lee because he thought it 

would help him on his pending parole violation. Grady replied: 

“No.” Appellant then asked Grady: “Well, when you testified at 

the preliminary hearing, you were hoping that by talking to 

Detective [Vander] Lee, that if he would help you out with that 

case then?” Grady again replied: “No.” After a brief digression, 

appellant asked: “So, Mr. Grady, after you talked with Detective 

Vander Lee and the other detective, he told you that he would 

talk to the D.A. about your case, didn’t he?” Grady replied: “Not 

to my knowledge, no.” Counsel did not attempt to impeach Grady 

with the transcript of the preliminary hearing. Instead, she 

asked him if his probation was modified favorably after he spoke 

with the detectives. The court understood Grady denied this.

Appellant represented to the court that Grady’s sentence 

had in fact been modified. The court reviewed Grady’s file, but it 

apparently did not show a modification. Appellant expressed a 

belief that the file was incomplete. The court stated it would take 

judicial notice of the modified sentence if appellant produced 

documentary evidence. Appellant later withdrew this request.
12

The court denied the request for judicial notice, explaining: “I’m 

not going to let you pull up something in the preliminary hearing, 

if it was missed here in the trial.” The court agreed to inform the 

jury of Grady’s initial sentence, more recent arrest for a probation 

violation, questioning about the events of this case, and 

subsequent reinstatement of probation on the condition that he 

serve 120 days in jail.

Assuming for the sake of argument that the trial court 

erred in deciding this issue in appellant’s absence, there is no 

reasonable possibility appellant would have obtained a more 

favorable outcome if he had been present. Appellant suggests he 

may have been able to provide background information on Grady 

or to supplement counsel’s recollection of details of the 

preliminary hearing if he had been present at the hearing. The 

trial court’s ruling was premised in large part on counsel’s failure 

to impeach Grady during his trial testimony by using a transcript 

of the preliminary hearing. Appellant’s hypothesized additional 

information would not have impacted that decision.

B. Substantial Evidence Supports Appellant’s Conviction.

Appellant contends the evidence shows he acted in lawful 

self-defense as a matter of law and so there is insufficient 

evidence to support his conviction for voluntary manslaughter 

and accompanying firearm enhancement. He further contends 

that even without considering the law of self-defense, the 

contradictory testimony by “convicts and drug addicts who 

testified to secure deals on their own pending criminal cases” is 

not substantial evidence which can support his conviction.

“ ‘When considering a challenge to the sufficiency of the 

evidence to support a conviction, we review the entire record in 

the light most favorable to the judgment to determine whether it 
13

contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt. [Citation.] We presume in support of the judgment the 

existence of every fact the trier of fact reasonably could infer from 

the evidence. [Citation.] If the circumstances reasonably justify 

the trier of fact’s findings, reversal of the judgment is not 

warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.]

A reviewing court neither reweighs evidence nor reevaluates a 

witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 

838, 890.)

“ ‘[C]onflicts and even testimony which is subject to 

justifiable suspicion do not justify the reversal of a judgment, for 

it is the exclusive province of the trial judge or jury to determine 

the credibility of a witness and the truth or falsity of the facts 

upon which a determination depends.’ ” (People v. Ennis (2010) 

190 Cal.App.4th 721, 729.) It is well settled that to warrant 

rejection of testimony that has been believed by the trier of fact,

that testimony must be physically impossible or inherently 

improbable. (See, e.g. People v. Johnson (1960) 187 Cal.App.2d 

116, 122.) “ ‘Contradictions and inconsistencies in the testimony

of a witness alone will not constitute inherent improbability.’ ” 

(People v. Holman (1945) 72 Cal.App.2d 75, 90.)

1. Appellant was the shooter.

Appellant contends that there is insufficient evidence to 

prove he was the shooter because the three eyewitnesses to the 

shooting were drug addicts and felons; two of them were trying to 

secure a favorable deal in their own cases and the third admitted 

he was under the influence of methamphetamine; and the 

testimony of all three was so contradictory as to be unreliable.
14

The only significant inconsistency in each witness’s 

testimony concerned whether he or she saw appellant shoot 

Pugh. All three witnesses at one point either stated or testified 

or both that they saw appellant shoot Pugh. Even when they 

changed their accounts to say they did not see the actual 

shooting, their descriptions of the circumstances immediately 

before and after the shooting supported only one reasonable 

inference: appellant was the shooter.

It is not unknown for witnesses to contradict earlier 

statements. (See, e.g., Evid. Code, § 1235.) A witness might well 

claim not to have seen a crime to avoid becoming involved and 

then later change his or her mind for a variety of reasons. That 

does not render the testimony inherently implausible. (See 

People v. Holman, supra, 72 Cal.App.2d at p. 90.) It was for the 

jury to decide the credibility of the witnesses.

The witnesses’ life histories do not disqualify them from 

providing testimony sufficient to uphold a conviction. Nothing in 

California law bars a convicted felon from testifying; it is the 

jury’s task to evaluate the credibility of such witnesses. Here, 

there is no direct evidence that the witnesses hoped for or 

received a deal in exchange for their testimony. Appellant may 

be correct that the jury could infer from the timing of their 

statements, which were made after they were taken into custody, 

that they hoped for a deal. This alone would not invalidate their 

testimony, as long as any actual deal was disclosed and the terms 

of the deal required them to testify truthfully at trial. Further, 

because there was no evidence that any witness was promised or 

received a deal, the jury could reasonably infer that there were 

other reasons for the timing of their decisions. The witnesses 

simply may have had time to reflect on the seriousness of the 
15

case. They may have been afraid of appellant and felt safer 

speaking with police in a private interview room where they 

could not be seen or overheard.

Nothing in California law bars a drug addict from 

testifying; it is the jury’s task to evaluate the credibility of such 

witnesses. Bird testified methamphetamine did not affect his 

ability to see or hear, and there is no evidence to the contrary. 

(People v. Lewis (2001) 26 Cal.4th 334, 356–357 [when witness 

has capacity to perceive and recollect, it is jury’s task to 

determine if witness did in fact perceive and recall events; even 

“mental defect or insane delusions” do not necessarily show that 

individual lacked capacity to perceive or recollect].)

2. Self-defense

Appellant contends the shooting amounted to self-defense 

as a matter of law. He is mistaken. Viewing the evidence in the 

light most favorable to the verdict, appellant and Pugh were 

about the same height and weight. According to Davis, the only 

witness to describe Pugh as having a companion, Pugh’s 

companion left before Pugh punched appellant, so the two sides 

were even in number. There is no evidence Pugh had a gun in his

hand before appellant shot him. At best, the presence of a gun 

under a nearby recreational vehicle might have permitted the 

jury to infer the gun was Pugh’s. Given the lack of any 

fingerprints or other evidence indicating Pugh’s hand touched the 

gun at any point during the encounter, it would be highly 

questionable to infer he was drawing the gun when appellant 

shot him. The mere presence of the gun under the vehicle is not 

sufficient to establish self-defense as a matter of law.
16

Appellant contends Pugh’s punch was so forceful that it 

constituted great bodily injury, and the law permits self-defense 

when an individual reasonably believes he will suffer great bodily 

injury. It was the jury’s task to determine both the severity of 

the blow and whether a reasonable person would believe Pugh 

was about to inflict another such blow. While there was evidence 

appellant fell to the ground after being hit, there was also 

evidence appellant did not fall down, but merely stumbled and 

caught himself. By all accounts, appellant was able to run from 

the scene rapidly and without assistance. This would certainly 

support an inference that Pugh’s punch was not forceful enough 

to inflict great bodily injury.

In his Reply Brief, appellant contends his use of lethal force 

was authorized to resist Pugh’s attempt to rob him. We do not 

consider issues raised for the first time in a reply brief. We note 

briefly that the jury was not instructed on this theory of selfdefense or on the elements of robbery. The evidence showed 

Pugh was attempting to collect a debt from appellant. Whether 

Pugh punched appellant simply out of frustration at appellant’s 

refusal to pay the debt or whether Pugh was illegally attempting 

to take property from appellant’s person by fear or force would 

have been a question for the jury.

C. The Prosecutor Did Not Commit Misconduct.

Appellant contends the prosecutor’s misconduct was so 

outrageous that it violated his constitutional right to due process. 

We do not agree.

A prosecutor has a “duty to refrain from improper methods 

calculated to produce a wrongful conviction as it is to use every 

legitimate means to bring about a just one.” (Berger v. United 

States (1935) 295 U.S. 78, 88.) A defendant need not prove a 
17

prosecutor acted in bad faith, and it is often more appropriate to 

characterize the prosecutor’s conduct as error rather than 

misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 213–214; see 

People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

We review a trial court’s denial of a claim of prosecutorial 

error or misconduct under the deferential abuse of discretion 

standard. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) We 

review any factual findings by the trial court for substantial 

evidence. (People v. Uribe (2011) 199 Cal.App.4th 836, 857.)

1. Surveillance video

Appellant contends the prosecutor committed misconduct 

when he played a portion of surveillance video during closing 

argument which had not been played at trial, and then

commented on it.

A prosecutor may not refer to matters outside the record by 

arguing matters not in evidence. (People v. Hill, supra,

17 Cal.4th at pp. 827–828.)

Here, the trial court found that the prosecutor played only 

the portion of the tape that had, in fact, been played during trial. 

The record supports this finding. We thus see no abuse of 

discretion in the trial court’s denial of appellant’s motion for a 

mistrial based on prosecutorial misconduct.

Appellant insists that a portion of the video, not played 

during the trial, was played during closing argument. That 

portion showed two men getting into a white car and driving 

away. The record on appeal does not support such a claim. The 

prosecutor never argued that two men were present. Indeed, the 

prosecutor stated: “[W]e know that like guilty people, the 

defendant took off. . . . He took off. And you watched it happen. 

Here he comes. The guy in the white shirt, dark sweats or dark 
18

pants--” Defense counsel objected, but was overruled. The 

prosecutor continued: “Exactly as the witnesses described. 

White shirt, dark gray, dark sweats. And there it is at exactly 

the time of the shooting. 1:29 a.m.”

Defense counsel herself described events on the video in the 

same way: “At 1:28 and 54 seconds, there’s a person with a 

shopping cart that’s headed . . . towards the corner of 7th and 

Ceres. [¶] At 1:28 and 59 seconds, a man runs up around the 

corner of 7th and Ceres as the shopping cart person is still at that 

corner, wearing—this man that runs was wearing a white t-shirt, 

dark pants and appears to be holding his left side of his pants.” 

Thus, her description of the video matches the prosecutor’s 

description during closing argument of one man running. 

Significantly, the trial court also described the video as showing 

“someone in [a] white top running by [a] car” and “a figure 

running” – neither of which is consistent with two men running 

to a car and getting in it.

Assuming for the sake of argument that the prosecutor 

somehow mistakenly showed an unplayed portion of the video, 

the trial court’s description of the video shows the error was 

harmless. The video shows only one person who is not getting 

into a car. The trial court specifically noted that there was “[n]o 

ability to identify anything regarding the figure.” Thus, 

appellant could not have been prejudiced by this brief clip, which 

was remarkably similar to the clip played during trial. This is 

especially so because during deliberation the jury received only 

the portion of the video which was played at trial.

2. Comment on closing argument

In rebuttal argument, the prosecutor stated appellant was 

relying on the prosecutor’s failure to offer evidence: “There’s 
19

nothing about this. There’s nothing about that. What about 

this? What about that? [¶] They want forensic testing on the

shell casings. . . . They want [someone from] Facebook to come 

here and testify. They want all kinds of other things. And the 

question for you isn’t that. The fact of the matter is you’re here 

to decide this case as I charged you at the end of my first 

argument based on the evidence. And what the defense is asking 

you to do is go back there and make something up. Make up a 

story that makes the defendant not guilty.” (Italics added.) After 

defense counsel objected and was overruled, the prosecutor 

continued: “And then that’s not what we’re here to do. The 

question what we do is that the evidence, what has been 

presented?”

The trial court found this was “invited comment.” 

Appellant contends that the italicized comments amounted to an 

improper claim that his counsel had fabricated a defense and also 

a disparagement of counsel.

“ ‘A prosecutor commits misconduct if he or she attacks the 

integrity of defense counsel, or casts aspersions on defense 

counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, 

we determine whether the prosecutor’s comments were a fair 

response to defense counsel’s remarks’ [citation], and whether 

there is a reasonable likelihood the jury construed the remarks in 

an objectionable fashion.” (People v. Edwards (2013) 57 Cal.4th 

658, 738.)

It is generally misconduct for a prosecutor to state or imply 

that defense counsel has fabricated a defense. (People v. 

Seumanu (2015) 61 Cal.4th 1293, 1337.) A prosecutor may argue 

that defense counsel “ ‘is attempting to confuse the issues and 

urge[] the jury to focus on what the prosecution believes is the 

relevant evidence.’ ” (People v. Hillhouse (2002) 27 Cal.4th 469, 
20

502; see People v. Marquez (1992) 1 Cal.4th 553, 575–576 [finding 

proper prosecutor’s argument that a “ ‘smokescreen’ ” had been 

“ ‘laid down [by the defense] to hide the truth’ ”].)

Here, it is reasonably likely that the jury understood the 

prosecutor’s remarks as the court did, as a response to 

statements defense counsel made at the end of her closing 

argument. Defense counsel argued that “it seems as though the 

prosecutor here . . . was listening to a different trial. Just as 

those three witnesses, it appears that they were looking at a 

different event.” The prosecutor’s remarks, in effect, argued that 

it was defense counsel who was listening to a different trial.

Considering the remarks in context further demonstrates

that the remarks are a comment on defense counsel’s 

interpretation of the evidence, which expressly invited the jury to 

draw inferences. In the prosecutor’s view, such inferences were

without evidentiary support from the record or were based on the 

absence of evidence in the record. The prosecutor was urging the 

jury to decide the case on the evidence presented.

This was not an abstract argument by the prosecutor. Both 

before and after the complained-of remarks, the prosecutor 

specifically explained why he believed the inferences he wanted 

the jury to draw were, without more, supported by the evidence. 

In addition to the Facebook and shell casings arguments

referenced above, the prosecutor addressed the cause of death,

the gun found at the scene, and the detectives’ efforts to speak to 

witnesses at the scene.

These were indeed areas where defense counsel had invited 

the jury to draw unsupported inferences. She argued that police 

found four 9 mm shell casings, but “the prosecution didn’t put on 

any evidence whatsoever to show that all four of those casings 

came from the same gun. . . . [So] we don’t know about the other 
21

guns.”6 She speculated more overtly about a woman at the scene: 

“I don’t know, we don’t have any evidence of it, but just maybe 

that was Carmen. . . . Not a word from these detectives about 

seeking out that woman.” Defense counsel also argued: “I think 

it’s reasonable to assume that [Pugh] had a gun in his hand, too, 

and the gun was under that camper. But whoever it was that 

shot him, beat him to the draw.” Eyewitnesses, of course, did not 

see a gun in Pugh’s hand.

7

Defense counsel also suggested the jury could infer a 

different cause of death than the one determined by the coroner, 

arguing that the coroner “said that the wounds he examined were 

well-healed. . . . We don’t have any evidence from the prosecution

whatsoever as to when they became well-healed. So how did he 

die?” The coroner was clear that the bullet caused the brain to 

bleed as it passed through the brain, and the body’s response to 

that bleeding caused significant permanent damage to Pugh’s 

brain which required skilled nursing and a feeding tube.

6 Numerous shell casings of the same caliber cannot, without 

more, support an inference that multiple guns were fired. The 

witnesses agreed that Pugh’s companion left before shots were 

fired, and that appellant fired multiple shots after that. The only 

gun found at the scene was a .38 caliber handgun. Unless 

appellant had and fired two guns, something no witness reported, 

there could have been no “other guns” at the scene.

7 Even assuming it would be reasonable to infer that the gun 

found under the camper belonged to Pugh, there was no basis to 

infer that the gun was ever in his hand (as opposed to, for 

example, falling out of his pocket or waistband after he was 

wounded), let alone that it was in his hand when appellant began 

firing.
22

3. DNA evidence

Appellant contends the trial court abused its discretion in 

overruling his objection that the italicized portion of the following

remark by the prosecutor constituted impermissible burden 

shifting: “Even though . . . the evidence is the detectives and the 

Los Angeles [Police] Department went [to] tremendous length to 

figure out what this gun was all about. They took that gun and 

they fingerprinted it. No. They took that gun and they split the 

DNA, and now I have the burden of proof. But don’t get me 

wrong. If there was anything in that gun that connected it to 

Ronald Pugh, you can bet the defense would be jumping up and 

down with joy . . . .” (Italics added.) The trial court found the 

remarks were “just part of the evidence.”

The trial court was well within its discretion in ruling that 

the remarks were simply a comment on the state of the evidence. 

It is well settled that a prosecutor may comment “on the state of 

the evidence or on the failure of the defense to introduce material 

evidence or to call logical witnesses.” (People v. Brady (2010) 

50 Cal.4th 547, 566.) Similarly, the prosecutor may criticize 

defense theories based on the evidence. (People v. Bemore (2000) 

22 Cal.4th 809, 846.) Defense counsel had urged the jury to infer 

that Pugh had the gun in his hand at the time of the shooting. It 

was thus permissible for the prosecutor in this case to argue that

appellant had not pointed to any evidence linking the gun to 

Pugh, and to specifically argue that appellant had access to DNA 

from the .38 caliber gun and if appellant had evidence that 

Pugh’s DNA was on the gun, he would have introduced it at trial. 

This is particularly true since at the same time the prosecutor 

pointed out that the People had introduced evidence negating a 
23

link between Pugh and the gun, specifically evidence that there 

were no fingerprints on the gun.

Appellant contends a note from the jury during 

deliberations shows the prosecutor’s argument confused the jury 

about what DNA testing revealed about the gun. The note 

clearly states the jury is confused about whether a defense 

objection to Detective Vander Lee’s testimony about turning over 

DNA to the defense was overruled or sustained. This does not 

show confusion about the results of any DNA testing.

D. The Section 667.5 Enhancements Must Be Stricken.

Appellant contends, and respondent agrees, that the eight 

1-year enhancements for appellant’s prior prison terms, imposed 

pursuant to section 667.5, subdivision (b), must be stricken. They 

agree that remand for resentencing is not required. We agree as 

well.

Senate Bill No. 136 became effective on January 1, 2020 

and now permits a court to impose an enhancement pursuant to 

section 667.5, subdivision (b) only if the defendant had served a 

prison term for a sexually violent offense as defined in Welfare 

and Institutions Code section 6600, subdivision (b). This change 

applies to judgments on appeal which were not yet final at the 

time of the change. (See, e.g., People v. Winn (2020) 

44 Cal.App.5th 859, 872–873.)

Appellant’s prior convictions are for transportation or sale 

of narcotics and possession of a firearm by a felon, which are not 

included in the listed felonies in Welfare and Institutions Code 

section 6600, subdivision (b). Accordingly, we order the 

enhancements stricken. Because the trial court imposed the 

maximum sentence permitted at the time, there is no need to 

remand for resentencing.
24

E. Appellant Has Forfeited His Fines and Fees Claim.

Appellant contends the trial court’s imposition of a $30 

court facilities assessment (Gov. Code, § 70373), a $40 court 

operations assessment (§ 1465.8), and a $300 restitution fine 

(§ 1202.4) and the accompanying suspended parole revocation 

fine without a finding that he had the ability to pay those 

amounts was a violation of his constitutional rights as set forth in 

People v. Dueñas (2019) 30 Cal.App.5th 1157.)8 Appellant 

acknowledges that he failed to object to the imposition of these 

fines and fees in the trial court.

We agree with People v. Frandsen (2019) 33 Cal.App.5th 

1126, which finds forfeiture. (Id. at pp. 1153–1155; accord,

People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032–1033;

People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; see also

People v. Avila (2009) 46 Cal.4th 680, 729 [finding forfeiture 

where the defendant failed to object to imposition of restitution 

fine under former § 1202.4 based on inability to pay].) We believe 

Frandsen is better reasoned than the non-forfeiture cases of 

People v. Castellano (2019) 33 Cal.App.5th 485 and People v.

Jones (2019) 36 Cal.App.5th 1028, upon which appellant relies.

8 The California Supreme Court has granted review in People 

v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 

2019, S257844, on the issue of whether a trial court must 

“consider a defendant’s ability to pay before imposing or 

executing fines, fees, and assessments” and if so, “which party 

bears the burden of proof regarding defendant’s ability to pay.”
25

DISPOSITION

Appellant’s eight 1-year enhancement terms imposed 

pursuant to section 667.5 are ordered stricken and appellant’s 

total sentence is reduced to 21 years. The clerk of the superior 

court is instructed to prepare an amended abstract of conviction 

reflecting these changes and to forward a copy to the Department 

of Corrections and Rehabilitation. The judgment of conviction is 

affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.