Filed 11/3/22 P. v. Steward CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON LAMONT STEWARD,

Defendant and Appellant.

 H046931

 (Santa Clara County

 Super. Ct. No. C1641635)

A jury convicted defendant Aaron Lamont Steward of, among other things,

burglary and multiple counts of robbery related to crimes that occurred in 2015 and 2016. 

Defendant contends on appeal that a pattern jury instruction regarding flight and 

consciousness of guilt violated due process as applied to him; that unrelated counts 

should have been severed for trial; that admitted photographs of one victim’s injuries

were unduly prejudicial; that there was insufficient evidence that he personally used a 

firearm during one robbery; and that his trial counsel was ineffective for making a factual 

misstatement during closing argument. For the reasons stated here, we find no 

prejudicial error requiring reversal. We will modify the judgment to strike a prior prison 

term enhancement that no longer applies due to a change in the law, and will affirm the 

judgment as modified. 

I. TRIAL COURT PROCEEDINGS

The operative second amended information charged defendant with: second 

degree robbery (Pen. Code, § 211; count 1; unspecified statutory references are to the 
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Penal Code); reckless driving while attempting to evade the police (Veh. Code, 

§§ 2800.1, 2800.2, subd. (a); count 2); conspiracy to commit burglary and robbery 

(§§ 182, subd. (a)(1), 459, 460, 211, 212.5, subd. (a); count 3); first degree burglary 

(§§ 459, 460, subd. (a); count 5); two counts of first degree robbery (§§ 211, 212.5, 

subd. (a); counts 8 & 9); possessing a firearm as a felon (§ 29800, subd. (a)(1); count 10); 

unlawfully possessing ammunition (§ 30305, subd. (a)(1); count 11); and vehicle theft 

with a prior conviction (§ 666.5, subd. (a); count 12). The information alleged that 

defendant personally used a firearm while committing counts 1, 8, and 9 (§ 12022.53, 

subd. (b)). The information also alleged defendant had one prior strike conviction (§ 667, 

subds. (b)-(i)), one prior serious felony conviction (§ 667, subd. (a)), had served one prior 

prison term (§ 667.5, subd. (b)), and was on bail when he committed counts 3, 5, and 8

through 12. The reckless driving charge in count 2 was dismissed by prosecution motion

during trial.

Codefendant Holden Falk entered into a plea agreement before trial, a condition of 

which was testifying truthfully at defendant’s trial as a prosecution witness.

A. MUKHEED ROBBERY (AUGUST 2015)

Abdul Mukheed testified through an interpreter that he visited Mountain View 

from his home in India on business in August 2015. Mukheed took the bus back to his 

hotel from his office after work one night. He got off the bus and walked toward the 

hotel carrying a black backpack containing a laptop and his passport. A light-colored 

sedan pulled up next to him. A man approached Mukheed, showed him a gun, and told 

him to “give everything to him.” The gun was small and black. The man with the gun 

was four or five feet from Mukheed, who described being scared because this was the 

first time he had seen a gun, much less had one pointed at him. Mukheed could not 

provide many details about the man’s appearance other than that he had long black hair. 

He testified that “most of the time I was looking at [the] gun, and this happened so fast 

that I didn’t get to see everything else.” The perpetrator took Mukheed’s backpack, 
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wallet, and cell phone before getting into the passenger side of the car which then sped

away. 

A California Highway Patrol (CHP) officer testified that he was driving in 

Mountain View while off duty in August 2015. A green car parked in a no-stopping area 

on the side of the road caught his attention. As the officer drove by, he noticed two men 

standing next to the car; one appeared to be Indian and the other appeared to be a 

lighter-skinned Black man. The Black man was about five feet nine inches tall, and 

weighed about 180 pounds. The Black man was wearing a black hat and had braided 

hair. The Black man was also holding what appeared to the officer to be a black, 

semiautomatic pistol. The officer acknowledged that due to the distance between his car 

and the men (around 60 to 70 feet), he could not be certain that the gun was real and 

agreed that it could have been a good replica. The officer reported the suspected robbery 

to the Mountain View Police Department.

A Mountain View Police Department officer testified about responding to the 

robbery dispatch and interviewing Mukheed, apparently in English because there was no 

mention of an interpreter. Mukheed told the officer that a light-skinned Black man got 

out of a green sedan and robbed him at gunpoint. (Mukheed’s statements to the officer 

were admitted over hearsay objections as prior inconsistent statements.) The officer 

initially testified that Mukheed described the handgun as a black revolver. On 

cross-examination, the officer could not recall whether Mukheed had actually described 

the gun as a revolver. The officer also acknowledged that during a recorded interview 

Mukheed told him that the gun “just look[ed] like a toy gun.” (The recording was 

admitted into evidence and played for the jury.) The officer did not follow up with 

Mukheed about the toy gun statement. 

A Palo Alto Police Department patrol officer heard the robbery dispatch and saw a 

green car matching the dispatch description on the street in front of him. He was within a 

few miles of the site of the robbery. He saw in the car two Black men, one with long 
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dreadlocks. The officer followed the car and activated his lights and siren to make a 

traffic stop. The suspect car led the officer on a high-speed chase and eventually crashed 

into another car. The occupants got out and fled. The passenger was holding a black 

backpack, and had shoulder-length dreadlocks. No one had changed positions in the car 

during the chase. The officer chased the men on foot, and the passenger dropped the 

backpack. The suspects split up, and the officer followed the passenger. The officer 

caught up to him, drew his gun, and the suspect got down onto the ground appearing to 

comply with the officer’s commands. The suspect then jumped to his feet and continued 

running. The officer caught up a short time later as the passenger was struggling with 

officers trying to detain him in the kitchen of a nearby house. The officer identified 

defendant at trial as the passenger, and confirmed that Mukheed’s backpack was the item 

the passenger had dropped while running. Defendant did not have a gun when he was 

arrested, and none was ever found. 

Mukheed was taken to where defendant was detained and was asked if he 

recognized him. Mukheed could not conclusively identify defendant, but noted that 

defendant’s long hair was similar in color and style to that of his assailant. The police 

returned Mukheed’s bag, passport, and laptop to him. 

The reporting CHP officer had also been asked to identify the car and one suspect 

later the same evening. He confirmed that the green car was the same one he reported to 

the police. The officer was shown a man in a patrol car and the officer initially “thought 

it was the driver” because the suspect had his hair down and the passenger had had his 

hair in a ponytail when the officer saw him standing with a gun on the side of the road. 

He confirmed at trial that defendant was the person he saw at the show up, and stated that 

he could not definitively state whether defendant was the driver or the passenger during 

the robbery because the officer had been too far away while driving past.
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B. GOEL BURGLARY AND ROBBERY (JANUARY 2016)

Ajit Goel testified that he was at home with his wife in Saratoga when the doorbell 

rang late one night in 2016. Goel opened the door partially to ask the man what he 

needed, and the man reached his arm through the gap holding a gun. Goel tried to slam 

the door on the man’s arm, but the man was stronger and pushed his way inside. At the 

time of trial in October 2018 Goel was 71 years old and weighed 155 pounds. The man 

hit Goel on the head with the gun barrel. Goel tried to fight back, but fell to the floor 

when the man hit him in the face with the gun. Goel began bleeding profusely, which 

prevented him from seeing out of his left eye. Goel’s wife came from the other room and 

yelled at the man to leave. When the man did not leave, Goel’s wife hit an emergency 

button that triggered a loud alarm. The man left, and Goel’s wife locked the door behind 

him. Goel testified that his surgeon later told him that had the ambulance arrived a few 

minutes later, he would have died from his injuries. Photographs of Goel’s injuries were 

admitted over a defense objection under Evidence Code section 352.

Codefendant Falk testified that he went with defendant and another man (referred 

to as Nacho) to the Goels’ house to rob them. Nacho had cleaned the Goels’ house 

before and believed there would be valuable items there to steal. Defendant encouraged 

Falk to use a gun to scare the Goels. The plan was for Falk to go inside, tie up the Goels, 

and then steal items from the home (possibly with defendant’s help). Falk forced his way 

inside when Goel answered the door, and he hit him twice with the gun because he was 

screaming. Falk fled without taking anything when Goel’s wife triggered a loud alarm. 

An expert in “call detail record analysis” testified that information from cellular towers 

and cell phones associated with Falk and defendant suggested that Falk and defendant 

were near the Goel residence on the date and time of the robbery.

C. CALLAWAY BURGLARY AND ROBBERY (JULY 2016)

Jerry Callaway lived with his wife in Los Gatos. He was 71 at the time of trial. 

Callaway arrived home from work after 10:00 p.m. one night in July 2016. As he was 
6

unloading his car in the garage, a man holding a gun and wearing a skeleton mask ran 

into the garage. Callaway, who was familiar with guns, testified that the gun appeared to 

be a 0.38-caliber revolver, with a checkered wooden grip and worn blue coloring on the 

barrel. Callaway ran inside the house. The man wedged his foot in the door before 

Callaway could close it. He yelled to his wife to call 911. The man with the gun came 

into the house along with another masked man who was carrying a knife. The second 

man might have been wearing a bandana. The man with the gun ran down the hall while 

the man with the knife watched Callaway. The man with the gun brought Callaway’s 

wife to the kitchen. The men took jewelry worth over $6,000 and about $2,700 in cash. 

One man ransacked the house while the other stood guard over Callaway and his wife. 

The men left after about 30 minutes.

Falk testified that he and defendant robbed the Callaways, with another person 

acting as the driver. They used a Camaro that defendant told Falk he had stolen. 

Defendant was wearing a skull mask and dark clothing. Falk was wearing a blue bandana 

around his face. Defendant approached the house first and forced his way inside; Falk 

followed him in. Defendant pointed a gun at Callaway and told him he was being 

robbed. Defendant went down the hall to find Callaway’s wife while Falk kept Callaway 

in the kitchen at knifepoint. Defendant brought Callaway’s wife to the kitchen, and then 

defendant and Falk took turns ransacking the house looking for items to steal. Among 

other things, they took jewelry, Apple digital devices, and cash.

A district attorney’s office criminalist testified at trial about comparing DNA 

samples from defendant and Falk to samples from pieces of evidence. Defendant’s DNA 

matched a sample from the skeleton mask. Falk’s DNA matched a sample from the 

bandana that was recovered from the Camaro. A mixture of DNA on the trigger of the 

handgun had a high statistical likelihood of coming from Falk, defendant, and another 

person.
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D. ARREST AND INVESTIGATION

A San Jose Police Department officer was on patrol in the east side of the city two 

days after the Callaway robbery. The officer saw a man (identified at trial as defendant) 

sitting in a Camaro near a motel. The officer ran the license plate through a database and 

learned that it might have been reported stolen. The officer turned his car around and 

parked within 10 feet of the Camaro. 

Defendant got out of the car and started walking away from the officer. The 

officer told defendant to stop and show his hands, and he initially complied. The officer 

directed defendant to face the patrol car and put his hands on the hood, and defendant 

initially did so but then repeatedly dropped his hands and tried to turn around to face the 

officer. The officer reached out to handcuff defendant until backup arrived, and 

defendant tried to elbow the officer and started running away. The officer tased 

defendant causing him to fall over. Defendant threw an item he had been holding, which 

the officer later recovered and confirmed was the key fob for the Camaro. The officer 

handcuffed and arrested him. Defendant was approximately five feet nine inches tall and 

160 pounds when he was arrested in July 2016.

A different officer found a black revolver under the Camaro near the rear bumper 

on the driver’s side. Callaway testified that a photograph of that gun admitted into 

evidence at trial looked like the same gun used in the robbery at his home. Police found a 

dark bandana in the trunk of the Camaro. A search of defendant incident to arrest 

disclosed a silver ring, a diamond earring, and a key to a room in the nearby motel. 

Callaway’s wife testified that the ring and earring had been stolen from her house.

The police went to the room associated with the key found in defendant’s pocket. 

Falk answered the door when the police knocked, and appeared to be under the influence 

of methamphetamine. An officer put Falk in handcuffs while other officers searched the 

motel room. The officers found items that they later determined had been stolen from the 

Callaway house as well as a fabric mask with a skeleton print.
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E. VERDICT AND SENTENCING

The jury deliberated for less than two full days before reaching a verdict. The jury 

found defendant guilty as charged; found true the firearm allegations as to counts 1, 8, 

and 9; and found true the on-bail allegations as to counts 3, 5, and 8 through 12. As we 

will discuss in more detail, the record indicates the trial court imposed a sentence of 49 

years.

II. DISCUSSION

A. CALCRIM NO. 372 INSTRUCTION REGARDING FLIGHT

Defendant contends his Sixth and Fourteenth Amendment rights to due process 

and a fair trial were violated when the trial court instructed the jury that flight could 

indicate consciousness of guilt. 

CALCRIM No. 372 is a pattern jury instruction which implements section 1127c. 

Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of 

a defendant is relied upon as tending to show guilt, the court shall instruct the jury 

substantially as follows: [¶] The flight of a person immediately after the commission of a 

crime, or after he is accused of a crime that has been committed, is not sufficient in itself 

to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his 

guilt or innocence. The weight to which such circumstance is entitled is a matter for the 

jury to determine. [¶] No further instruction on the subject of flight need be given.” 

Though defendant focuses on CALCRIM No. 372, we note that because such an

instruction is required by section 1127c, the issue amounts to an as applied challenge to 

that statute.

An as applied challenge “contemplates analysis of the facts of a particular case or 

cases to determine the circumstances in which the statute or ordinance has been applied 

and to consider whether in those particular circumstances the application deprived the 

individual to whom it was applied of a protected right.” (Tobe v. City of Santa Ana

(1995) 9 Cal.4th 1069, 1084.) “When a criminal defendant claims that a facially valid 
9

statute or ordinance has been applied in a constitutionally impermissible manner to the 

defendant, the court evaluates the propriety of the application on a case-by-case basis to 

determine whether to relieve the defendant of the sanction.” (Ibid.) Defendant contends 

application of section 1127c deprived him of his federal constitutional due process right 

to a fair trial. “In order to declare a denial of [due process] we must find that the absence 

of that fairness fatally infected the trial; the acts complained of must be of such quality as 

necessarily prevents a fair trial.” (Lisenba v. California (1941) 314 U.S. 219, 236.)

Defendant objected on due process grounds to the prosecution’s proposal to 

instruct the jury on flight as consciousness of guilt (CALCRIM No. 372). Counsel 

argued that as an African American1 man, it was a “necessity in today’s world for 

somebody like my client to not put himself in a situation if he can help it where he’s 

encountering officers who could harm or kill him.” The trial court overruled the 

objection, finding substantial evidence to support the instruction and noting that the 

instruction “caution[s] that [the] evidence of flight cannot prove guilt by itself.” Using 

CALCRIM No. 372, the jury was instructed as follows: “If the defendant fled 

immediately after a crime was committed, that conduct may show that he was aware of 

his guilt. If you conclude the defendant fled, it’s up to you to decide the meaning and 

importance of that conduct. However, evidence that the defendant fled cannot prove guilt 

by itself.”

Defense counsel discussed the flight instruction in closing argument: “So why did 

he run? He ran because he was—that consciousness of guilt. He knows he robbed Mr. 

Mukheed. Yeah, that’s one reasonable interpretation. Or he ran because he knew 

something happened because the cops were chasing him, and somehow he’s got this hot 

bag, and he knows something’s up. [¶] Or maybe he ran for other reasons other than guilt. 

1

 We use the term African American in this section because it was the 

nomenclature of the arguments in the trial court and the appellate briefing.
10

I don’t know what it’s like to be a young African-American male being chased by armed 

police officers, but in today’s society there may be reason for him to run other than 

consciousness of guilt.”

Defendant argues on appeal that the “flight of a person of color cannot support a 

reasonable inference of guilt.” We understand defendant’s argument as urging that when 

a defendant is a person of color, it is unreasonable as a matter of law for a jury to infer 

that his or her flight from the police shows consciousness of guilt. 

Section 1127c and CALCRIM No. 372 describe a permissive inference, “which 

allows—but does not require—the trier of fact to infer the elemental fact from proof by 

the prosecutor of the basic one and which places no burden of any kind on the 

defendant.” (County Court of Ulster County v. Allen (1979) 442 U.S. 140, 157 (Allen).) 

The first sentence of the pattern instruction describes the inference: “If the defendant fled 

immediately after a crime was committed, that conduct may show that he was aware of 

his guilt.”

“A permissive inference violates the Due Process Clause only if the suggested 

conclusion is not one that reason and common sense justify in light of the proven facts 

before the jury.” (Francis v. Franklin (1985) 471 U.S. 307, 314–315; see Allen, supra, 

442 U.S. at p. 157 [Because a “permissive presumption leaves the trier of fact free to 

credit or reject the inference and does not shift the burden of proof, it affects the 

application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the 

case, there is no rational way the trier could make the connection permitted by the 

inference”].) Courts have consistently upheld CALCRIM No. 372 against other 

constitutional challenges. (See, e.g., People v. Hernandez Rios (2007) 151 Cal.App.4th 

1154, 1159 [instruction does not lower prosecution’s burden of proof]; People v. 

Paysinger (2009) 174 Cal.App.4th 26, 30-32 [instruction does not unconstitutionally 

presume a crime was committed].)
11

We note as a threshold matter that substantial evidence supported instructing the 

jury with CALCRIM No. 372. The car associated with Mukheed’s robbery fled the 

scene. When pursued, the car continued its flight until it crashed. Defendant got out of 

the car carrying Mukheed’s backpack and began running. When an officer caught up on 

foot, defendant initially complied with the officer but then continued fleeing. Defendant 

was ultimately apprehended by other officers in the kitchen of a nearby house. The 

foregoing is substantial evidence that defendant fled the scene of Mukheed’s robbery, and 

the jury was properly instructed it could consider that evidence in deciding whether 

defendant fled because he knew he had in fact committed the robbery. That the jury here 

could rationally make that connection based on the evidence distinguishes this case from 

those relied on by defendant where courts found the instruction was not supported by the 

evidence. (Citing United States v. Myers (5th Cir. 1977) 550 F.2d 1036, 1050.) 

Defendant argues the instruction violates due process because it has a disparate 

and discriminatory impact on African Americans, who might have objectively reasonable

and lawful reasons for avoiding the police. Without requesting judicial notice, defendant 

cites studies related to institutional racism, including a Judicial Council of California 

report about African American and Latin American individuals making up greater 

percentages of the criminal defendant population relative to their percentage of the total 

California population. But the existence of other reasons for flight does not compel the

conclusion that a consciousness of guilt inference would be unreasonable as a matter of 

law. Those arguments are properly directed to the jury which must decide what if any

weight to give evidence of defendant’s flight. Indeed, defense counsel did so: “I don’t 

know what it’s like to be a young African-American male being chased by armed police 

officers, but in today’s society there may be reason for him to run other than 

consciousness of guilt.”

Pointing to cases discussing whether and to what extent flight can be considered in

determining whether a peace officer has reasonable suspicion to detain a suspect (e.g., 
12

United States v. Brown (9th Cir. 2019) 925 F.3d 1150, 1156-1157), defendant poses a

rhetorical question: “If the flight of a Black man from police does not create reasonable 

suspicion to detain, how can we allow jurors to use that flight to find the defendant was 

conscious of guilt?” But none of defendant’s authorities found flight categorically

irrelevant as defendant would have us do here; rather, they acknowledge that racial 

disparities in policing are relevant to determining whether flight supports a reasonable 

suspicion to detain. (See Brown, at p. 1157 [“Given that racial dynamics in our society—

along with a simple desire not to interact with police—offer an ‘innocent’ explanation of 

flight, when every other fact posited by the government weighs so weakly in support of 

reasonable suspicion, we are particularly hesitant to allow flight to carry the day in 

authorizing a stop.”].) The Brown court emphasized that data about racial disparities in 

policing “cannot replace the ‘commonsense judgments and inferences about human 

behavior’ underlying reasonable suspicion analysis,” but “can inform the inferences to be 

drawn from an individual who decides to step away, run, or flee from police without a 

clear reason to do otherwise.” (Ibid.) 

Because we have found no error arising from the jury instruction on flight in this 

record, defendant’s corresponding due process challenge to the firearm enhancement 

associated with the Mukheed robbery necessarily fails.

B. JOINDER OF OFFENSES

Defendant argues the trial court abused its discretion by denying his motion to 

sever the consolidated case into two or more cases. A trial court may consolidate two or 

more accusatory pleadings if, among other things, the different offenses are “connected 

together in their commission” or are “two or more different offenses of the same class of 

crimes or offenses.” (§ 954.) “In cases in which two or more different offenses of the 

same class of crimes or offenses have been charged together in the same accusatory 

pleading, or where two or more accusatory pleadings charging offenses of the same class 

of crimes or offenses have been consolidated, evidence concerning one offense or 
13

offenses need not be admissible as to the other offense or offenses before the jointly 

charged offenses may be tried together before the same trier of fact.” (§ 954.1.) 

“Because consolidating or joining actions is efficient, there is a preference to do so.” 

(People v. Vargas (2020) 9 Cal.5th 793, 817.) A defendant “must make a ‘ “clear 

showing of prejudice to establish that the trial court abused its discretion” ’ ” in refusing 

to sever charges that meet the consolidation criteria. (People v. Soper (2009) 45 Cal.4th 

759, 774 (Soper), italics omitted.) We consider the following factors when reviewing a 

decision to consolidate cases: the cross-admissibility of evidence in hypothetical separate 

trials; whether some of the charges are particularly likely to inflame the jury against the 

defendant; whether a weak case has been joined with a strong case or another weak case 

so that the totality of the evidence may alter the outcome as to some or all of the charges; 

(and, not applicable here, whether one of the charges but not another is a capital offense, 

or the joinder of the charges converts the matter into a capital case). (Id. at p. 775.)

Defendant was initially charged in three separate cases for the crimes that were 

eventually tried jointly. The trial court granted motions to consolidate the cases into a 

single prosecution, over defense objections. Defendant moved in limine to sever the 

three consolidated cases. In denying the motion, the court acknowledged the Mukheed 

robbery was not connected to codefendant Falk, but the court reasoned it was connected 

to “the People’s allegation that this is really kind of a crime spree period where the 

defendant is committing a series of felony theft-related crimes. They are all property 

crimes and the same class of crimes, and I do not think there would be any prejudice in 

including Count 1 [Mukheed]. It’s not a particularly stronger case or weaker case than 

the other counts.” The court also acknowledged that the Mukheed robbery evidence 

would likely not be cross-admissible in separate trials on the other robberies, but 

reasoned that none of the various charges would particularly inflame the jury.

The trial court properly joined the various robberies into a single case. All three 

incidents involved not only the same class of offense but the same actual offense, 
14

robbery (§ 211). Because the charges were properly joined under section 954, defendant 

“must make a ‘ “clear showing of prejudice to establish that the trial court abused its 

discretion” ’ ” in refusing to sever the charges. (Soper, supra, 45 Cal.4th at p. 774, italics 

omitted.) We see no abuse of discretion on this record. That evidence from the Goel and 

Callaway robberies may not have been cross-admissible in a separate prosecution for the 

Mukheed robbery does not compel a finding that the cases should have been severed. 

(§ 954.1 [“evidence concerning one offense or offenses need not be admissible as to the 

other offense or offenses before the jointly charged offenses may be tried together before 

the same trier of fact”].)

All three incidents involved the same charged crime of robbery, regardless of 

degree, as all robberies are by statute both serious and violent crimes. (§§ 1192.7, 

subd. (c)(19), 667.5, subd. (c)(9).) We recognize that Mukheed was not injured as was 

Goel, but Mukheed was robbed at gunpoint on the street. The trial court could 

reasonably find none of the robberies substantially more inflammatory than any other.

Nor was the evidence supporting the Mukheed robbery substantially weaker than 

evidence of the others. Defendant was seen shortly after the robbery getting out of a car 

matching the description of the suspect car and tossing Mukheed’s backpack onto the 

ground before running from police. The officer who initiated the traffic stop testified that 

the occupants of the suspect car did not change positions during the chase, supporting an 

inference that defendant was the person who had robbed Mukheed.

Here again, because the trial court did not abuse its discretion in denying 

defendant’s motion to sever the robberies for separate trials, defendant’s related challenge 

to the firearm enhancement for the Mukheed robbery necessarily fails.

C. PHOTOS SHOWING VICTIM INJURIES

Defendant contends the trial court erred in overruling his Evidence Code 

section 352 objection to the admission of “gory photographs of Goel’s facial features, 

sustained when Falk pistol-whipped him.” “A trial court may admit photographs of
15

victims even when the photographs are ‘gruesome’ if ‘the charged offenses were 

gruesome’ and the photographs ‘[do] no more than accurately portray the shocking nature 

of the crimes.’ ” (People v. Morales (2020) 10 Cal.5th 76, 104 (Morales).) “The jury 

can, and must, be shielded from depictions that sensationalize an alleged crime, or are 

unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the 

charged crimes that does not unnecessarily play upon the emotions of the jurors.” 

(People v. Ramirez (2006) 39 Cal.4th 398, 454.) We review the admission of 

photographs showing a victim’s injuries for abuse of discretion. (People v. Crittenden

(1994) 9 Cal.4th 83, 133.) 

Defendant did not identify in his opening brief the specific photographs to which 

his argument relates, nor did he request that the relevant exhibits be transmitted to this 

court. In his reply brief, defendant describes the four challenged photographs from 

exhibit Nos. 12 and 13 as: “Goel at the scene with a bandaged head”; “Goel on the 

operating table with his head wound visible”; “Goel’s head after the surgery”; and 

“Goel’s head after the surgeries.” Because the Attorney General was able to identify and 

respond to defendant’s argument despite defendant’s failure to properly present the issue 

for review, we will address its merits.

Defendant argues the photographs were irrelevant because the “jury was not 

enlightened one whit by seeing them.” But we find the challenged photographs relevant 

and admissible for multiple reasons. They supported the force or fear element of robbery. 

They corroborated Falk’s and Goel’s testimony about the robbery. (People v. Scheid

(1997) 16 Cal.4th 1, 15 [photographs relevant to corroborate witness statements].) And 

they accurately portrayed the nature of the crime committed by Falk at defendant’s 

urging, even though defendant did not personally enter the house. (Falk testified that 

defendant encouraged him to use a gun to scare the Goels, although there was no 

testimony that defendant specifically encouraged Falk to strike Goel with the gun.)

(Morales, supra, 10 Cal.5th at p. 104.) 
16

Asserting that the photographs’ probative value was substantially outweighed by 

the risk of undue prejudice, defendant compares his case to People v. Marsh (1985) 175 

Cal.App.3d 987. But that case is readily distinguishable because the challenged 

photographs there involved “seven gory autopsy photographs” (id. at p. 998), including 

“an almost full view of the victim’s nude body the closeup portion of which is the 

exterior surface of the exposed brain below which dangles part of the bloody scalp and in 

the background of which is the child’s blood-splattered torso ‘field dressed’ with the 

ribcages rolled back to expose the bowels.” (Id. at p. 996.) The challenged photographs 

here are nothing like those at issue in Marsh. The trial court described the photos here as

“not extremely gory. There is some blood but it’s—my understanding is he did end up 

having brain surgery. It’s not like there’s a photograph of the brain surgery or opening 

up his head or anything like that.” Having reviewed the photographs ourselves, we find 

nothing inaccurate in the trial court’s description. Given that the photos were relevant 

and not unnecessarily gruesome, the trial court did not abuse its discretion in determining 

that their probative value was not substantially outweighed by the risk of undue 

prejudice.

Because we find no error in admitting the challenged evidence, defendant’s related 

federal constitutional due process argument necessarily fails.

D. SUFFICIENCY OF THE EVIDENCE OF PERSONAL FIREARM USE

Defendant argues the firearm enhancement associated with the Mukheed robbery 

must be stricken because the evidence was insufficient to show that he used an actual

firearm, as opposed to a realistic toy gun. “In assessing the sufficiency of the evidence, 

we review the entire record in the light most favorable to the judgment to determine 

whether it discloses evidence that is reasonable, credible, and of solid value such that a 

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” 

(People v. Bolin (1998) 18 Cal.4th 297, 331.) In support of the judgment we presume the 

“existence of every fact that the trier of fact could reasonably deduce from the evidence.” 
17

(People v. Medina (2009) 46 Cal.4th 913, 919.) To overturn a conviction based on 

insufficient evidence, “it must clearly appear that upon no hypothesis whatever is there 

sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 

755.) In reviewing the sufficiency of the evidence, we resolve neither credibility issues 

nor evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

Defendant contends that Mukheed, “who was not familiar with guns, testified that 

he thought the small black gun appellant pointed at him was a toy.” We disagree with 

defendant’s characterization of the trial testimony. Mukheed consistently referred to the 

item in the perpetrator’s hand as a gun, not a toy, and never mentioned anything about the 

gun possibly being a toy. 

The trial testimony defendant cites came not from Mukheed but from a police 

officer who responded to the scene and took a statement from Mukheed. During 

cross-examination, defense counsel asked the officer questions about a recorded 

interview he conducted in English with Mukheed the night of the robbery. The officer 

was apparently explaining the difference between a semiautomatic handgun and a 

revolver and asked Mukheed if the gun was round. The transcript of the interview 

indicates Mukheed’s response was: “It’s not round, it’s––it’s, uh [pause] it just look like 

a toy gun.” The only other testimony about the firearm came from the eyewitness

off-duty CHP officer who testified that he saw the suspect holding what appeared to be a 

black, semiautomatic pistol. The officer acknowledged that due to the distance between 

his car and the men, he could not be certain that the gun was real and agreed that it could 

have been a good replica. 

“Circumstantial evidence alone is sufficient to support a finding that an object 

used by a robber was a firearm.” (People v. Monjaras (2008) 164 Cal.App.4th 1432, 

1436.) “[W]hen faced with what appears to be a gun, displayed with an explicit or 

implicit threat to use it, few victims have the composure and opportunity to closely 

examine the object; and in any event, victims often lack expertise to tell whether it is a 
18

real firearm or an imitation. And since the use of what appears to be a gun is such an 

effective way to persuade a person to part with personal property without the robber

being caught in the act or soon thereafter, the object itself is usually not recovered by 

investigating officers.” (Ibid.)

Sufficient circumstantial evidence supports the firearm enhancement here. 

Defendant argues “no witnesses testified that they thought the gun was real.” But 

Mukheed consistently referred to it as a gun and not a toy at trial when testifying through 

an interpreter. The CHP officer believed it was a gun, even though he candidly

acknowledged he could not state with certainty that it was real. Implicit in the witnesses’

use of the word “gun” and not “toy” is a belief that the gun was real. The jury was 

entitled to credit that testimony over the ambiguous statement Mukheed made to an 

officer in English without an interpreter. 

E. CLOSING ARGUMENT AND EFFECTIVENESS OF TRIAL COUNSEL 

Defendant contends his trial counsel provided ineffective assistance by 

inaccurately describing the trial evidence about the Mukheed robbery during closing 

argument. To establish ineffectiveness of trial counsel in violation of the right to counsel 

under the Sixth Amendment to the United States Constitution, a defendant must show 

both a deficiency in counsel’s performance and a prejudicial effect of the deficiency. 

(People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To prove prejudice from deficient 

performance, a defendant must affirmatively show a reasonable probability that, but for 

trial counsel’s error, the result would have been different. (Id. at pp. 217-218.) 

The statement defendant identifies relates to trial counsel’s description of 

testimony from the eyewitness off-duty CHP officer. That witness testified that as he 

drove past what appeared to be a robbery in progress, he saw a man with “a weapon in 

his hand.” The officer described it as a “[s]emiautomatic pistol, black, rectangular 

shape.” The officer acknowledged that due to the distance between his car and the man 
19

(around 60 to 70 feet), he could not be certain that the gun was real and agreed that it 

could have been a good replica.

During closing argument about the Mukheed robbery, defense counsel noted

conflicting testimony as to whether defendant was the driver or the passenger. Counsel 

stated: “I’m not telling you [defendant is] not involved in this. He is, but he’s charged 

with personally using a real gun to rob Mr. Mukheed.” Counsel argued there was 

reasonable doubt as to whether defendant was the driver or the passenger. Counsel 

mentioned Mukheed’s statement to the interviewing officer that “it looked like a toy 

gun,” and criticized the officer for not asking follow-up questions. He reminded the jury 

that the prosecution had to “prove for the enhancement that it was a real gun.”

Counsel continued that “we want you to believe the snippet in the video that said 

the robber came out of the passenger seat. Don’t believe CHP Officer Ruiz who comes 

in here and says that was the driver. I saw this guy Aaron Steward. That was the driver. 

This guy, Officer Ruiz, is not some dude off the street. This is a CHP officer, a trained 

observer, a law enforcement officer. He is so familiar with identification procedures that 

he tells us, ‘Well, they didn’t give me an admonition. I know how this stuff works, and 

they’re supposed to give me an admonition. They’re supposed to tell me this may not be 

the guy.’ He knows the admonition so he doesn’t need it, but he knows the process. [¶] 

Now, why is that important? It’s important because Officer Ruiz had every opportunity 

to do what Mr. Mukheed did and what the Callaways did and tell you ‘I don’t know. I 

don’t know.’ . . . But [the CHP officer] comes in and he tells you—and he—at the time 

he says ‘I ID’d him. That’s the driver. Also, I saw it was a semiautomatic pistol and it 

looked real, not the round revolver’ that we talked about earlier like [another officer] 

said.” (Italics added to indicate the portion of the argument defendant challenges on 

appeal.)

The jury submitted two relevant questions during deliberations. First, the jury 

asked: “Is the man committing the robbery equally guilty of the robbery as the driver. 
20

Ie.. is there a difference between driver and passenger if a robbery/burglary.” (Errors in 

original.) The court responded by referring the jury to CALCRIM Nos. 400 and 401, 

which describe aider and abettor liability. Second, the jury asked: “For a 

weapon/firearm rider must the gun be proven to be a real gun? Or an item that looks like 

a real gun for the purpose acceptable for the charge.” The court referred the jury to 

CALCRIM No. 3146, which defines “firearm” as “any device designed to be used as a 

weapon, from which a projectile is discharged or expelled through a barrel by the force of 

an explosion or other form of combustion.” (Italics omitted.)

The essence of defense counsel’s closing argument about the Mukheed robbery 

was that the prosecution had not proven its case beyond a reasonable doubt because the 

evidence conflicted on key points. The conflicting testimony concerned both whether the 

gun at issue was real and also whether defendant had been the passenger or the driver 

(important because if defendant was the driver instead of the passenger/robber, the 

personal firearm use enhancement would not apply to him). Defendant challenges

defense counsel’s reference to the CHP officer’s testimony suggesting that the gun he 

saw “ ‘looked real.’ ” The witness testified that he saw the robber holding a 

“[s]emiautomatic pistol, black, rectangular shape” in his right hand, but he also

acknowledged it may have been a “good replica.” Implicit in the statement that the item 

would have to have been a “good replica” is that the item looked like a real gun to the

trained officer. We find counsel’s argument to be a fair description of the CHP officer’s 

testimony, and defendant has therefore not demonstrated deficient performance. 

Nor has defendant demonstrated prejudice. We have already summarized the

sufficient evidence supporting the firearm enhancement. Trial counsel noted in his 

argument Mukheed’s interview statement about the item possibly being a toy gun and 

argued the prosecution had not proven all elements of the firearm enhancement beyond a 

reasonable doubt. Considering also the jury instruction that counsel’s argument was not 

evidence (see People v. Lindberg (2008) 45 Cal.4th 1, 26 [we presume the jury follows 
21

instructions provided to it]), we see no reasonable probability that different or additional 

argument about the CHP officer’s testimony would have led to a more favorable result.

F. CUMULATIVE PREJUDICE

Defendant claims that the trial errors he identifies are cumulatively prejudicial. 

(Citing People v. Hill (1998) 17 Cal.4th 800, 840.) As we have found no error, 

defendant’s cumulative prejudice argument must fail.

G. SENTENCING ISSUES

1. The Stayed Prior Prison Term Enhancement

The parties agree that defendant’s stayed one-year prior prison term enhancement 

(§ 667.5, subd. (b)) must be stricken in light of legislation passed after defendant was 

sentenced. (Stats. 2019, ch. 590, § 1; see People v. Lopez (2019) 42 Cal.App.5th 337, 

340-341 [amendment narrows enhancement to apply only to prior sexually violent 

offense convictions].) We also agree and will strike the previously stayed prior prison 

term enhancement.

2. Amendment to Section 1170, Subdivision (b) (Senate Bill No. 567)

Defendant notes a recent amendment to section 1170, subdivision (b), and urges it 

requires resentencing on count 8, the first degree burglary of the Callaway home the trial 

court selected as the principal term. The parties agree that the statutory amendment 

applies to defendant under the reasoning of In re Estrada (1965) 63 Cal.2d 740, but 

disagree about the proper remedy. (Accord People v. Flores (2022) 75 Cal.App.5th 495.)

When defendant was sentenced, trial courts had broad discretion under 

section 1170, subdivision (b) to select the “appropriate term” for offenses that can be 

punished by three possible terms. (Former § 1170, subd. (b); Stats. 2018, ch. 1001, § 1.) 

Under the recent amendment, trial courts are now generally required to select the middle 

term. (§ 1170, subd. (b)(1).) A trial court may impose an upper term “only when there 

are circumstances in aggravation of the crime that justify the imposition of a term of 

imprisonment exceeding the middle term, and the facts underlying those circumstances 
22

have been stipulated to by the defendant, or have been found true beyond a reasonable 

doubt at trial by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(2).) A trial 

court may consider “defendant’s prior convictions in determining sentencing based on a 

certified record of conviction without submitting the prior convictions to a jury.” 

(§ 1170, subd. (b)(3).) 

The trial court identified several factors in aggravation, including that: “the 

crimes involved great violence and threat of great bodily harm and disclosed a high 

degree of cruelty, viciousness, or callousness”; there were “elderly victims”; “the 

defendant was . . . encouraging, was part of the conspiracy” and “was not just a follower 

in any of this”; “the manner in which the crimes were carried out indicated planning, 

sophistication, or professionalism” as shown by the perpetrators who “[wore] masks, 

spoke in code, communicated through text messages, and utilized information from a 

co-defendant about homes, when people would be gone”; defendant’s “prior convictions 

do show an increasing seriousness and are numerous” and went “from vehicle thefts to 

carjacking and these home invasions”; “defendant was on parole when the crime was 

committed”; and “defendant’s performance on both probation—both in juvenile and on 

parole and adult were not satisfactory.” The trial court also noted defendant used a gun 

during commission of the robbery, but stated “because that’s an element of the crime, the 

Court will not consider that as an aggravator.”

We agree with defendant that not all of the factors cited by the trial court were 

stipulated to by him or found true beyond a reasonable doubt by a factfinder. But we find 

any error harmless beyond a reasonable doubt. (People v. Wandrey (2022) 80 

Cal.App.5th 962, 981 [“Error in relying on facts not found by the jury to impose an 

aggravated term is subject to review under the harmless error standard of Chapman v. 

California (1967) 386 U.S. 18.”].) Two factors in aggravation were supported by 

defendant’s convictions for count 3 (conspiracy to commit robbery and burglary). The 

overt acts alleged in the operative information as to count 3 describe defendant’s 
23

participation in three burglaries, two resulting in convictions in this case. Defendant and 

his co-conspirators are alleged to have planned burglaries over multiple months, 

including by communicating via text message and phone calls. Two of the overt acts 

came from the Callaway robbery: that defendant and Falk traveled to the Callaways’ 

address in Los Gatos, and that they entered the residence. That conviction therefore 

supports two of the aggravating factors: that the crimes indicated planning, 

sophistication, or professionalism; and that defendant induced others to participate in the 

crimes. (Cal Rules of Court, rule 4.421(a)(8), (a)(4).) A single aggravating factor can 

support an upper term (People v. Osband (1996) 13 Cal.4th 622, 728), and both of those 

factors were permissible considerations under amended section 1170. We find any error 

in the trial court’s reliance on other factors harmless beyond a reasonable doubt.

We are also confident that other factors would have been found true beyond a 

reasonable doubt had they been presented to the jury, because the associated facts are not 

in serious dispute. Jerry Callaway testified that he was 71 at the time of trial just over 

two years after the burglary, supporting a finding that he was a particularly vulnerable

victim due to his age. (Cal. Rules of Court, rule 4.421(a)(4).) At the bifurcated court 

trial on defendant’s prior convictions, a “certified state rap sheet” documenting

defendant’s criminal history was admitted into evidence. Even without a certified record 

of conviction, the CLETS database printout revealed a criminal history dating to 2006, 

including felony convictions for vehicle theft (Veh. Code, § 10851) and carjacking. Also 

admitted at the court trial on the prior convictions were a plea form and jail commitment 

order from the vehicle theft conviction, and an abstract of judgment from the carjacking 

conviction. Those records support a finding that defendant’s “prior convictions as an 

adult or sustained petitions in juvenile delinquency proceedings are numerous or of 

increasing seriousness.” (Cal. Rules of Court, rule 4.421(b)(2).) We acknowledge the 

carjacking conviction, standing alone, could not be used as an aggravating factor because 

it was also the basis for the prior serious felony conviction enhancement. (§ 1170, 
24

subd. (b)(5) [“The court may not impose an upper term by using the fact of any 

enhancement upon which sentence is imposed under any provision of law.”].) But that 

does not limit use of the conviction in considering defendant’s criminal history as a 

whole.

Because we find any error arising from changes to section 1170 harmless beyond a 

reasonable doubt, defendant is not entitled to resentencing. As resentencing will not

occur, the trial court will have no occasion to consider the circumstances added to 

section 1385 by Senate Bill No. 81, which expressly applies in sentencing beginning 

January 1, 2022. (§ 1385, subd. (c)(1), (7).) 

3. Abstract of Judgment

The People argue that a new abstract of judgment must be prepared to accurately

reflect the sentence imposed by the trial court, and defendant “accepts respondent’s 

argument” on that point. As we will explain, we conclude the total term imposed by the 

trial court is 49 years. The trial court orally imposed terms that totaled 49 years eight

months in prison, though when summarizing the sentence at the end of the hearing the 

trial court stated the total sentence was 51 years. There are two abstracts of judgment in 

the record, one imposing a total term of 51 years and another imposing 49 years.

The discrepancy between the oral pronouncement (49 years eight months) and the

May 2019 abstract of judgment (49 years) appears to derive from the sentence for 

count 1, the Mukheed second degree robbery. For that count, the trial court stated it 

would impose “one-third the midterm on both the charge and the allegation” (doubled 

because of defendant’s prior strike conviction). The court calculated its intended 

sentence as “six years[,] because it’s one-third of eight and one-third of ten for a total of

six.” But the doubled middle term for second degree robbery is six years, not eight. 

(§ 213, subd. (a)(2).) (We note the misstatement may have arisen because defendant had 

just been sentenced on two first degree robbery counts where the doubled middle term

was eight years.) Effectuating the trial court’s intent to impose “one-third the mid-term 
25

on both the charge and the allegation,” the correct term for count 1 is five years four 

months (two years for second degree robbery (§§ 213, subd. (a)(2), 1170.1, subd. (a)) 

plus three years four months consecutive for the firearm enhancement (§§ 12022.53, 

subd. (b), 1170.1, subd. (a))). 

To summarize, defendant’s total prison sentence is 49 years, calculated as follows 

(all base terms were doubled because of defendant’s prior strike conviction (§ 667, 

subds. (b)-(i))): a principal upper term of 12 years for first degree robbery (count 8; 

§ 213, subd. (a)(1)(B)), with 10 years consecutive for the firearm enhancement 

(§ 12022.53, subd. (b)) plus two years consecutive for the on-bail enhancement 

(§ 12022.1, subd. (b)); two years eight months consecutive for first degree robbery 

(count 9; §§ 213, subd. (a)(1)(B), 1170.1, subd. (a)) plus three years four months 

consecutive for the firearm enhancement (§§ 12022.53, subd. (b), 1170.1, subd. (a)); two 

years consecutive for second degree robbery (count 1; §§ 213, subd. (a)(2), 1170.1, 

subd. (a)) plus three years four months consecutive for the firearm enhancement 

(§§ 12022.53, subd. (b), 1170.1, subd. (a)); two years eight months consecutive for 

conspiracy to commit robbery and burglary (count 3; §§ 182, subd. (a)(1), 213, 

subd. (a)(1)(B), 1170.1, subd. (a)); two years eight months consecutive for first degree 

burglary (count 5; §§ 461, subd. (a), 1170.1, subd. (a)); one year four months consecutive 

for possessing a firearm as a felon (count 10; §§ 29800, subd. (a)(1), 1170.1, subd. (a)); 

two years consecutive for unauthorized vehicle use with a prior conviction (count 12; 

§§ 666.5, subd. (a), 1170.1, subd. (a)); and five years consecutive for the prior serious 

felony conviction (§ 667, subd. (a)). The abstract of judgment dated May 20, 2019,

correctly reflects the foregoing calculation.

III. DISPOSITION

The judgment is modified to strike the previously stayed prior prison term 

enhancement (Pen. Code, § 667.5, subd. (b)). As so modified, the judgment is affirmed. 

The clerk of the superior court is directed to prepare a new abstract of judgment 
26

reflecting both that modification and the 49-year total sentence correctly shown on the 

May 20, 2019 abstract of judgment.
____________________________________

Grover, J.

WE CONCUR:

____________________________

Greenwood, P.J. 

____________________________

Lie, J. 

H046931

People v. Steward