Filed 3/27/23 P. v. Morgan CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

opinions not certified for publication or ordered published, except as specified by rule 8.1115(a). This 

opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DEAN MORGAN et al.,

Defendants and Appellants.

B315231

Los Angeles County

Super. Ct. No. TA146151

APPEALS from judgments of the Superior Court of Los

Angeles County, Kelvin D. Filer, Judge. Affirmed as modified. 

Joanna McKim, under appointment by the Court of Appeal, 

for Defendant and Appellant Dean Morgan.

Jean Ballantine and Valerie G. Wass, under appointment 

by the Court of Appeal, for Defendant and Appellant Gerod 

Harrison.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, David E. Madeo and Marc A. Kohm, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted defendants Dean Morgan and Gerod 

Harrison of first degree murder (count 1). The jury also convicted 

Morgan of possession of firearm by felon (count 2) and unlawful 

possession of ammunition (count 3). As to count 1, the jury found 

firearm allegations true as to Morgan and found true the 

allegation that Harrison personally used a deadly and dangerous 

weapon. 

Defendants contend that the evidence was insufficient to 

support that they premeditated and deliberated the murder and 

raise various claims of prosecutorial misconduct. Morgan also 

argues that the court erred in failing to instruct the jury on the 

lesser included offense of voluntary manslaughter based on heat 

of passion and in failing to instruct the jury that provocation 

could negate premeditation and deliberation. He further contends 

that counts 1, 2, and 3 were part of the same course of conduct, 

that the sentences on counts 2 and 3 violate Penal Code1 section 

654, and that we must remand for resentencing. Finally, he

argues that he should receive one additional day of actual 

presentence custody credit. 

We modify Morgan’s judgment to reflect that his sentence

on count 3 for unlawful possession of ammunition is stayed 

pursuant to section 654 and to reflect an award of 1,210 days of 

actual presentence custody credit rather than 1,209 days. We 

otherwise affirm both judgments. 

1 All undesignated statutory references are to the Penal Code.
3

PROCEDURAL BACKGROUND

An information dated October 23, 2018, charged Morgan 

and Harrison with the murder of Albert Kyle (§ 187, subd. (a); 

count 1). As to count 1, it was further alleged that Morgan 

personally and intentionally discharged a firearm, which caused 

great bodily injury and death to Kyle (§ 12022.53, subd. (d)), and 

that he personally and intentionally discharged a firearm and 

personally used a firearm (§ 12022.53, subds. (b), (c)), which 

caused count 1 to be a serious felony (§ 1192.7, subd. (c)(8)) and a 

violent felony (§ 667.5, subd. (c)(8)). It was also alleged that 

Harrison personally used a deadly and dangerous weapon

(§ 12022, subd. (b)(1)), which caused the offense to be a serious 

felony (§ 1192.7, subd. (c)(8)) and a violent felony (§ 667.5, 

subd. (c)(8)). Additionally, Morgan was charged with possession 

of firearm by felon (§ 29800, subd. (a)(1)); count 2), and unlawful 

possession of ammunition (§ 30305, subd. (a)(1); count 3).

Morgan and Harrison pleaded not guilty and denied all 

allegations. 

A jury found Morgan and Harrison guilty of first degree 

murder and found all allegations true. The jury also found 

Morgan guilty of possession of a firearm by a felon and unlawful 

possession of ammunition. 

On count 1, the court sentenced Morgan to 25 years to life 

plus 10 years for the firearm enhancement. On counts 2 and 3, 

the court sentenced Morgan to the middle term of two years, to 

run concurrently, for a total state prison commitment of 35 years 

to life. The court sentenced Harrison to 26 years to life plus five 

years consecutive for a prior offense, for a total state prison 

commitment of 31 years to life. 
4

FACTUAL BACKGROUND

1. Prosecution Evidence

1.1. Crystal Lozoya

In May of 2018, Crystal Lozoya lived in an apartment at 

10700 South Main Street with her husband and children. On the 

afternoon of May 26, 2018, Lozoya heard a fight break out in the 

unit below hers. Her unit began to shake and she heard doors 

slamming and things being thrown around. She and her children 

went to look outside and, after stepping down onto the first step 

of the stairwell and leaning over the balcony, Lozoya observed 

blood in the doorway of the apartment below. 

Lozoya was returning to her apartment with her children

when she observed a man with no shirt on, covered in blood, exit 

the apartment. The bloodied man was stumbling and swaying.

While she was closing her screen door, she observed another man 

follow the bloodied man out towards the front gate of the 

apartment building. The second man was holding a gun in his 

right hand with his arm extended. Lozoya was closing the solid 

wood door to her apartment when she saw the second man shoot

at the injured man. She observed the injured man collapsing. 

After she closed the door, she heard between three and five 

additional shots. She testified that both the injured man and the 

man with the gun were African American. Lozoya hid with her 

children at the back of her apartment and called the police before 

returning to the front of the apartment to look out the window. 

She observed the injured man on the ground. Lozoya did not hear 

any gunshots before the injured man was walking towards the 

street and did not observe the injured man turn around to face 
5

the man with the gun. The man with the gun fired at the injured 

man’s back. 

Lozoya also observed the man with the gun holding an 

object in his left hand. She testified that she could not tell what it 

was, but later testified that she remembered that it was a bag of 

some kind.

1.2. Marvin Tart

On May 26, 2018, Marvin Tart was in an apartment at 

10700 South Main Street, where he had been living for several

months. Different people lived in the unit during that period, 

including Albert Kyle, whom Tart knew as “Tap.” Tart was part 

of the Main Street Gang, but was no longer active, and did not 

know whether Kyle had any gang affiliation. 

Tart and Kyle were the only two people in the apartment. 

Before Tart went to sleep in one of the bedrooms, he observed 

Kyle lying on the couch in the living room. Tart was woken up by 

a commotion and the sound of people fighting. Tart stuck his 

head out of the bedroom and observed blood all over Kyle and on 

the floor. Kyle looked at Tart, frightened. Tart initially testified 

that he could not tell who Kyle was fighting with since he could 

only see the back of their head. He heard male voices and 

therefore believed the attacker was male. 

Tart returned to the bedroom and sat there for a moment. 

He then heard gunshots and hopped out the window to try and 

get away. Tart ran to the back of the apartment complex and 

opened the gate to the parking lot, but saw no way of getting out. 

He returned to the apartment and re-entered through the 

window. After putting on his shoes and his jacket, he exited 

through the window again and headed towards the front gate of 

the apartment complex, where he observed Kyle on the ground. 
6

Tart walked away but later returned to the apartment complex to 

make sure the police knew he had nothing to do with the crime. 

He told an officer that he had not seen anything. 

Tart had several past felony convictions, including for 

burglary, possession of a firearm, and, most recently, vehicle 

theft. When he was first arrested for the vehicle theft, detectives 

spoke with Tart and he denied knowing anything about this case.

After he was in custody for several weeks, Tart spoke again with 

detectives and informed them that he saw what happened inside 

the apartment. He told a detective that he was in the apartment 

during the incident and that men told him “to go to the front 

while they handle their business.” Tart further told the detective 

that he hid in a closet while the men were getting ready to leave. 

He told the detective that Morgan had shot Kyle, and said the 

other man present was “Deuce” from the Broadways gang, whom 

he later identified as Harrison. He also stated that he heard one 

of them say, “Shoot this motherfucker. Don’t let him out.”

Although Tart identified Morgan and Harrison to 

detectives as the individuals who had committed the murder, he 

initially testified that he identified them based on what he heard 

from the streets and not his own observation of them in the 

apartment. However, he later stated that he saw Morgan and 

Harrison in the apartment and observed them fighting with Kyle. 

He testified that he saw Kyle’s shirt mangled and then, while 

hiding in the closet in the bedroom, saw them exit through the 

bedroom window. He did not observe anyone else in the 

apartment. He told the detective that Morgan was the shooter 

because it looked like Morgan had something in his hand when 

he was leaving the apartment. Although Tart had taken drugs 
7

not long before the incident took place, he denied having 

hallucinated any of the events he testified to. 

2

1.3. The Investigation

10700 South Main Street is across the street from a police 

station. After receiving a report of the incident, officers arrived 

within approximately a minute and observed Kyle lying face 

down on the street. Officers further observed a trail of blood 

leading to the apartment complex and, once they entered the 

gate, observed a large pool of blood near Kyle’s unit. While 

inspecting the exterior of the apartment, officers identified 

firearm casings in the grass at the front of the apartment 

building and discovered a firearm in the back parking lot. 

Officers also canvassed the area for suspects. They located 

Morgan sitting on the porch of a home, looking “a little bit 

nervous, kind of hyperventilating” and with “bloodstains on his 

shirt.” Morgan was unarmed and complied with the officers’

commands. Later, officers located Harrison, who was wearing a 

light gray shirt covered in blood. Harrison ran from the officers 

for a short distance and did not comply with their orders. After 

several minutes, officers were able to detain Harrison, who had a 

2 After Tart’s arrest in the vehicle theft case, he worked as an 

informant with the Los Angeles Police Department and conducted 

controlled drug purchases. During the last drug buy he conducted for 

the Department, Tart failed to return an ounce of methamphetamine 

when the seller gave Tart an ounce more than the Department paid 

him to purchase. He admitted this to the Department when confronted. 

The District Attorney did not promise Tart anything in exchange for 

his cooperation in the case. However, the parties stipulated that Tart 

received $288 pursuant to the California Witness Relocation and 

Assistance Program. 
8

laceration to his right hand that was bleeding. Harrison was 

“sweaty, nervous, out of breath, and upset.” Officers recovered a 

folding knife from his front left pocket. 

Later that evening, the investigating detectives, Pat 

Flaherty and Rene Castro, conducted a recorded interview of 

Morgan at the station. Morgan waived his Miranda3 rights and 

agreed to speak with the officers. He told the detectives that he 

had a backpack with him that he ditched in a sewage area. The 

detectives conveyed this information to officers, who recovered 

the backpack from a storm drain near the apartment building. 

The backpack had red or brown stains on it. There were several 

items inside the backpack, including a jacket, some shirts, jeans 

that were the same brand as Morgan was wearing, and a folding 

knife. 

The detectives also booked into evidence the clothes the 

defendants were wearing that day. The t-shirt worn by Morgan 

had bloodstains, as did his shoes and his jeans. Morgan had no 

injuries. The shirt worn by Harrison was covered in blood and 

shoes worn by Harrison had blood on the outer sole and bottom. 

Harrison had injuries above and below the left elbow, an injury to 

his right hand, and bruising around his right elbow. He also had 

dried blood under his fingernails. 

The following day, the detectives spoke with Lozoya and 

showed her a picture of the backpack officers had recovered, 

which she identified as the bag the shooter was holding during 

the incident. Based on their investigation, the detectives found no 

evidence that anyone other than Kyle, Morgan, Harrison and 

Tart was present in the apartment at the time of the incident. 

3 Miranda v. Arizona (1966) 384 U.S. 436.
9

1.4. Physical Evidence

Andreh Aghajanian, a criminalist employed by the Los 

Angeles Police Department and assigned to the Field 

Investigation Unit, responded to the scene on the evening of May 

26, 2018. Aghajanian collected four discharged cartridge cases 

and booked them into evidence. He also observed red stains on 

the sidewalk outside the apartment and inside the residence on 

the floor and furniture in the living area, the floor of the hallway, 

and the doorknob to the hallway closet. Aghajanian collected 

samples from the reddish stains throughout the apartment and 

booked those samples into evidence. He also examined the 

exterior of the apartment and the parking lot. Aghajanian 

collected samples from two additional reddish stains at the 

exterior of the apartment. He also booked the gun from the 

parking lot into evidence. The gun had four live rounds in it. 

Huan Nguyen, a criminalist employed by the Los Angeles 

Police Department and assigned to the Forensic Science Division, 

Serology DNA Unit, conducted testing on certain of the samples

to determine whether they contained blood. Nguyen tested the 

defendants’ shoes and clothes, a shirt from the backpack, the 

backpack, the knife recovered from Harrison, and the gun 

recovered from the parking lot for indications of blood and, upon 

obtaining positive results, prepared swabs or cut samples from 

the items and sent the swabs and samples for DNA testing. 

Nguyen also swabbed the gun for touch DNA and swabbed the 

shoes, backpack, and clothes for wearer DNA and submitted 

samples for testing. 

Robert Broderick, who was also assigned to the Serology 

DNA Unit, analyzed the results of DNA testing on the samples 

prepared by Nguyen. He determined that the sample taken from 
10

the hooded shirt was consistent with Harrison’s DNA and that 

the sample taken from Harrison’s shoes contained a mixture of 

two individuals’ DNA and was consistent with the DNA of 

Harrison and Kyle. Broderick further determined that the DNA 

taken from the blood stain on the backpack matched Kyle’s DNA.

The DNA profile of the blood stain on the shirt from the backpack 

was consistent with three contributors, one of which was 

Harrison. The other contributors could not be determined. The 

blood stains on Morgan’s left shoe contained DNA consistent with 

two male contributors, one of which was Kyle, and the right shoe 

contained DNA consistent with at least three male contributors

who could not be identified. Broderick further determined that 

the blood sample taken from Harrison’s knife matched Kyle’s 

DNA, and that the blood sample from the gun contained DNA 

consistent with two male contributors, one of which matched Kyle

and the other of which could not be determined. The DNA swab 

from the gun handle was inconclusive. 

Fadil Biraimah, a criminalist employed by the Los Angeles 

Police Department and assigned to the Firearm Analysis Unit, 

compared the discharged cartridge cases found in front of the 

apartment to the gun recovered at the scene. Biraimah concluded 

that three of the four casings were fired by the recovered gun. 

The remaining casing was inconclusive, though it had similar 

configurations of marking as the test casings.

1.5. Medical Testimony

Dr. Scott Luzi, a forensic pathologist, performed the 

autopsy and prepared an autopsy report. Dr. Luzi identified a 

total of five gunshot wounds and 16 sharp force wounds on Kyle, 

the latter of which were a combination of stab and incised 

wounds. Of these wounds, one gunshot wound was fatal and four 
11

of the stab wounds were independently fatal. The fatal gunshot 

entered through the upper left back and had an up to downward 

trajectory Dr. Luzi did not observe any soot or stippling from the 

gunshot on Kyle, which suggested that he was shot from a 

distance of more than three feet. The fatal sharp force wounds 

were inflicted to Kyle’s lower left chest, upper right back, and 

lower middle back. Dr. Luzi testified that four of the gunshot 

wounds indicate that two bullets entered and exited on the same 

side of the chest, which he stated would be consistent with the 

victim being shot while lying on his stomach and rolling towards 

the left. Dr. Luzi further testified that the incision wound to 

Kyle’s right palm and the abrasions on his right arm were 

consistent with defensive injuries. 

2. Harrison’s Evidence

Harrison testified on his own behalf. He was a member of 

the Broadway gang, which he joined when he was 13 years old. 

Harrison had previously been convicted of carjacking in 2005, a 

crime for which he was on parole at the time of trial. Kyle, whom 

Harrison referred to as “Tap,” was Harrison’s gang uncle and had 

been since he was a kid. 

On the day of the incident, Harrison was at a hamburger 

stand when he observed Morgan walking down the street. 

Morgan said he was going to Tap’s place and Harrison joined 

him. The apartment door was open and Harrison entered first, 

followed by Morgan. Kyle was walking from the hallway to the 

living room when he saw Harrison and Morgan, and asked

Harrison who Morgan was. After Harrison vouched for Morgan, 

Kyle told Morgan to sit down. Harrison testified that Tart, whom 

he called “Midnight,” was also present and that there was 

somebody else in the back. Harrison did not know who the other 
12

man was but recognized him from the neighborhood and said he 

was from another gang. The man was African American, with 

dark skin and braids, and was around 6 feet 1 inch tall and 200 

to 220 pounds. Harrison was 5 feet 4 inches tall and weighed 140 

pounds. 

Kyle went back to the hallway, where a commotion erupted. 

Harrison heard someone being slammed against a wall. Harrison 

went to see what was happening and saw Kyle fighting with the 

unknown man. They were initially grappling, but Harrison 

noticed that the unknown man had a knife. The man began 

stabbing Kyle, who was holding onto the man’s shirt. Harrison 

went to help Kyle and grabbed the attacker’s hand. Harrison 

sliced his hand while attempting to hold the attacker back. 

Harrison also sustained additional cuts and puncture wounds. 

Kyle grabbed onto Harrison as Harrison was trying to 

defend him and they stumbled into different furniture items in 

the living room. Tart was also present in the living room. The 

unknown man dropped the knife and Harrison picked it up and 

put it in his pocket. Everyone then ran out of the apartment. The 

unknown man ran towards the front gate. Harrison was the third

person to exit the apartment and heard shots when he got to the 

door. He ran to the back of the apartment complex, towards the 

parking area, and hopped the fence. He ended up at another 

house and asked the people there to call the police, but was 

unsure whether they did so, as he passed out. 

During the fight, there was a gun on the table, but 

Harrison never saw anyone pick it up and did not see who fired 

it. Harrison did not see what Morgan did after the fight began. 

During cross examination, the prosecutor asked why 

Harrison and Morgan went to Kyle’s apartment. Harrison 
13

testified that they intended to buy weed. The prosecutor 

introduced a photograph showing the contents of Harrison’s 

wallet when he was arrested, which contained only $1. The 

prosecutor also asked Harrison whether Morgan had a backpack 

on him that day. Harrison resisted answering the question but 

agreed that, when Detective Flaherty had showed him a picture 

of the backpack at the police station, he had stated that it was 

Morgan’s and that Morgan had it with him that day.

3. Morgan’s Evidence

Morgan also testified on his own behalf. Morgan lived in 

South Central his whole life but was not affiliated with any 

gangs. On May 26, 2018, Morgan and his family were getting 

kicked out of their apartment and were getting ready to move. 

Morgan left to buy some cocaine. He carried a backpack with him 

containing clothes that he intended to sell to help pay for a room 

for his mother. He testified that the backpack that other 

witnesses had described was the backpack he carried that day. 

Morgan was also carrying $40.46. 

Morgan met up with Harrison, whom he had known since 

he was young and who was like family to him. The two met at a 

hamburger stand and Morgan told Harrison that he was going to 

buy some drugs. The first place they went did not have drugs, so 

Morgan decided to go to Kyle’s apartment, which he had heard 

about in the neighborhood. Although he had heard of Kyle, 

Morgan had never met him before that day. 

When they arrived at the apartment, Harrison went in 

first. Kyle was sitting on the couch when they entered and, when 

he saw Morgan, said, “Hold on,” and “Wait, I don’t know him.” 

His tone was aggressive, which made Morgan feel scared and 

nervous. Harrison vouched for Morgan and Kyle replied, “Okay.” 
14

He then took out a pistol and set it on the ottoman, then pointed 

at a chair and told Morgan to take a seat. He asked what Morgan 

was trying to get. Morgan asked for cocaine and Kyle went 

towards the back of the apartment. 

Morgan then heard rumbling and yelling. Harrison went 

back to see what was going on and Morgan heard him say, “Oh, 

shit.” Morgan observed Harrison fighting with another man and 

saw Kyle fighting as well. The fight moved from the hallway into 

the living room. Morgan observed blood but did not see who was 

bleeding. During the fight, he remained in the chair in the living 

room, frightened. When the fight moved towards where he was 

sitting, Morgan grabbed the gun from the ottoman, exited the 

apartment, and moved to the walkway between the front door of 

the apartment and the gate to the complex. The apartment door 

then swung open and Kyle emerged. He looked “aggressive,” 

“angry” and “pissed off,” and approached Morgan. Morgan closed 

his eyes and shot at Kyle. When he saw Kyle lying on the ground, 

he ran to the back of the apartment complex, jumped the gate, 

and ran away. Morgan testified that he did not intend to kill 

Kyle, but was “just trying to protect [himself]” because he “didn’t 

know what [Kyle] was going to do to [him].”

Morgan testified that he also saw a dark-skinned man in 

the hallway of the apartment and the man was not Tart. 

On cross-examination, Morgan agreed that he had told 

arresting officers that he had blood on his shirt because he was 

leaning over Kyle to try and help him, before later admitting that 

he shot Kyle. Morgan further agreed that he had told detectives 

that Kyle had pulled out a bag of drugs and gave it to him and 

Harrison but stated at trial that he had lied about this. Morgan 

acknowledged that his testimony at trial was the first time he 
15

claimed that another person was engaged in the altercation with 

Kyle. He agreed that he had informed detectives that the only 

people who were rumbling in the apartment were Kyle and 

Harrison but testified that he had lied. 

4. Prosecution Rebuttal Evidence

Detective Flaherty and his partner conducted recorded 

interviews of Morgan and Harrison. Neither Morgan nor 

Harrison mentioned a hamburger stand in their interviews. 

Morgan stated that they left from his mother’s house. Further, 

neither Morgan nor Harrison mentioned the fifth, unknown man 

in their interviews with the detectives. Morgan told the 

detectives that he observed Kyle rumbling with Harrison and 

that he observed someone at the northwest bedroom window, the 

room in which Tart had been hiding. During the interview with 

detectives, Morgan stated that he had never been to the 

apartment, but then admitted that he had been there before only 

a few days prior. 

CONTENTIONS

Morgan and Harrison contend that the evidence was 

insufficient to support the finding that the murder of Kyle was 

premeditated and deliberate because there was no substantial 

evidence of prior planning or discussions about killing Kyle, or 

that the killing was committed in the perpetration of, or an 

attempt to perpetrate, robbery, as the prosecutor argued.
16

Separately, Morgan and Harrison raise several claims of 

prosecutorial misconduct.4 Among other things, they argue that 

the prosecutor improperly shifted the burden of proof, elicited 

improper opinion testimony, erroneously referenced defendants’ 

post-arrest silence, argued facts not in evidence, and misstated 

the law.

Morgan further contends that the court erred in failing to 

instruct the jury on the lesser included offense of voluntary 

manslaughter based on heat of passion and in failing to instruct 

the jury that provocation could negate premeditation and 

deliberation. 

Morgan also argues that the sentences on the gun and 

ammunition charges in counts 2 and 3 violate section 654 because 

they were part of the same course of conduct as count 1, and that 

he is entitled to resentencing based on a change in the law with 

respect to section 654. He further argues that the court erred in 

imposing sentence for the firearm enhancement because it may 

have been unaware that it had discretion to strike the 

4 In his briefs, Morgan makes a blanket statement that he joins in the 

claims raised by Harrison “that accrue to his benefit.” Harrison made a 

similar statement in his opening brief, but withdrew his joinder on 

reply. The Attorney General argues that this attempt at joinder is 

improper. His argument is well taken. Our high court has expressed 

skepticism that “such cursory and unfocused statements are sufficient 

under the California Rules of Court, rules 8.630(a) and 8.200(a)(5), to 

permit joinder of appellate claims” in a multiple defendant appeal and 

“strongly disapprove[d] of this seriously improper tactic.” (People v. 

Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363–364.) However, 

we need not consider whether Morgan’s joinder was sufficient. As we 

discuss, we conclude that Harrison was not prejudiced by any 

prosecutorial misconduct. Thus, even if we presumed that Morgan is 

identically situated, Harrison’s claims do not accrue to his benefit. 
17

enhancement. Finally, Morgan contends that he is entitled to one 

additional day of presentence custody credit. 

We conclude that the evidence was sufficient to support 

that the killing of Kyle by Morgan and Harrison was willful, 

deliberate, and premeditated. We hold that any prosecutorial 

errors, together or singly, were not prejudicial and do not require 

the reversal of Morgan’s or Harrison’s murder conviction. 

Further, we hold that the court did not err in failing to instruct 

the jury that provocation can negate premeditation and 

deliberation. To the extent that the court erred in failing to 

instruct the jury on voluntary manslaughter based on heat of 

passion, the error was harmless considering the jury’s 

determination that the murder was premeditated and deliberate. 

We further conclude there was sufficient evidence to 

support that Morgan purposefully took possession of the gun 

before the murder took place and that counts 2 and 3 were 

therefore not part of the same course of conduct as count 1 under 

section 654. However, we accept the Attorney General’s 

concession that counts 2 and 3 were part of the same course of 

conduct and will therefore modify the judgment to stay the 

sentence for count 3. We reject Morgan’s contention that the 

court erred in imposing a sentence for the firearm enhancement. 

Finally, we accept the Attorney General’s concession that Morgan 

is entitled to one additional day of presentence custody credit and 

modify the judgment accordingly. 
18

DISCUSSION

1. Substantial evidence supports that Morgan’s and 

Harrison’s killing of Kyle was premeditated and 

deliberate.

1.1. Standard of Review

In assessing the sufficiency of the evidence to support a 

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

rational trier of fact could have found the essential elements of 

the crime or special circumstances beyond a reasonable doubt.

[Citation.] The record must disclose substantial evidence to 

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

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

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

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

favorable to the prosecution and presume in support of the 

judgment the existence of every fact the jury could reasonably 

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

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

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

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

the truth or falsity of the facts upon which a determination 

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

evidentiary conflicts; we look for substantial evidence. [Citation.]’

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

unless it appears “that upon no hypothesis whatever is there 

sufficient substantial evidence to support” ’ the jury’s verdict.

[Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357; see 

also Jackson v. Virginia (1979) 443 U.S. 307; People v. Snow

(2003) 30 Cal.4th 43, 66.)
19

1.2. Analysis 

Morgan and Harrison contend that the evidence was 

insufficient to support that they carefully weighed or considered 

killing Kyle, and that the murder of Kyle was therefore neither 

premeditated nor deliberate. We conclude that the evidence was 

sufficient to support the jury’s findings.

Murder is of the first degree when it is willful, deliberate 

and premeditated. (§ 189, subd. (a).) Premeditation and 

deliberation require more than a showing of intent to kill. (People 

v. Mendoza (2011) 52 Cal.4th 1056, 1069.) A killing is 

premeditated and deliberate if it is considered beforehand and 

occurred as the result of preexisting thought and reflection, 

rather than as the product of an unconsidered or rash impulse. 

(People v. Pearson (2013) 56 Cal.4th 393, 443.) “Deliberation” 

refers to careful weighing of considerations in forming a course of 

action; “premeditation” means thought over in advance. (Ibid.) 

However, it is unnecessary to prove the defendant maturely and 

meaningfully reflected upon the gravity of his act. (§ 189, 

subd. (d).) Premeditation and deliberation do not require any 

extended period of time. (People v. Salazar (2016) 63 Cal.4th 214, 

245.) The issue is not so much the duration of time as it is the 

extent of reflection, because thoughts may follow each other with 

great rapidity, and cold, calculated judgment may be arrived at 

quickly. (People v. Potts (2019) 6 Cal.5th 1012, 1027.)

“In People v. Anderson [(1968) 70 Cal.2d 15, 26] (Anderson), 

[the Supreme Court] identified ‘three basic categories’ of evidence 

[it] has generally found sufficient to sustain a finding of 

premeditation and deliberation: (1) planning activity, or ‘facts 

about how and what defendant did prior to the actual killing 

which show that the defendant was engaged in activity directed 
20

toward, and explicable as intended to result in, the killing’; (2) 

motive, or ‘facts about the defendant’s prior relationship and/or 

conduct with the victim from which the jury could reasonably 

infer a “motive” to kill the victim’; and (3) manner of killing, or 

‘facts about the nature of the killing from which the jury could 

infer that the manner of killing was so particular and exacting 

that the defendant must have intentionally killed according to a 

“preconceived design” to take his victim’s life in a particular way 

for a “reason” . . . .’ [Citation.]” (People v. Morales (2020) 10 

Cal.5th 76, 88–89 (Morales).) “In the years since Anderson, ‘ “[the

Supreme Court] ha[s] emphasized that its guidelines are 

descriptive and neither normative nor exhaustive, and that 

reviewing courts need not accord them any particular weight.” ’

[Citation.]” (Id. at p. 89.) Further, “the Supreme Court has 

described the various Anderson categories in the disjunctive, 

inserting an ‘or’ in the series . . . .” (People v. Nazeri (2010) 187 

Cal.App.4th 1101, 1113.)

Review of the sufficiency of the evidence to support a 

premeditation finding involves consideration of the evidence 

presented and all logical inferences in light of the above 

definitions of premeditation. (People v. Perez (1992) 2 Cal.4th 

1117, 1124.) We conclude that substantial evidence supports the 

jury’s conclusion that Harrison and Morgan committed 

premeditated and deliberate murder.

Beginning with the factor with the strongest evidentiary 

support, the jury could have inferred premeditation and 

deliberation from the manner of killing. The evidence supports 

that Harrison inflicted 16 sharp force wounds, four of which were 

independently fatal. A jury could infer from the location of the 

fatal wounds—the lower left chest, upper right back, and lower 
21

middle back—that Harrison was targeting vital areas of Kyle’s 

body with the purpose of killing him. (See People v. Moore (2002) 

96 Cal.App.4th 1105, 1114 [evidence that “defendant stabbed the 

victim not in the arm or leg, but in the abdomen, an extremely 

vulnerable area of the body” supported finding of premeditation 

and deliberation].) The Supreme Court has recognized on 

numerous occasions that the infliction of multiple stab wounds to 

a victim tends to support a finding of premeditation. (See 

Morales, supra, 10 Cal.5th at p. 102 [evidence that adult victims 

suffered multiple fatal stab wounds was among the facts that 

“bore most directly on whether [the defendant] acted with 

premeditation and deliberation”]; People v. Elliot (2005) 37 

Cal.4th 453, 471 [three potentially lethal knife wounds, together 

with numerous other stab and slash wounds, implied a 

preconceived design to kill]; People v. San Nicolas (2004) 34 

Cal.4th 614, 658–659 [sheer number of stab wounds on victim 

supported a finding of deliberation]; People v. Pride (1992) 3 

Cal.4th 195, 247 [“A violent and bloody death sustained as a 

result of multiple stab wounds can be consistent with a finding of 

premeditation.”]; People v. Alcala (1984) 36 Cal.3d 604, 627

[evidence of multiple stab wounds and blunt force trauma to the 

victim’s head “support[ed] the inference of a calculated design to 

ensure death, rather than an unconsidered ‘explosion’ of 

violence”].) The Supreme Court has also recognized that, even if 

multiple wounds may suggest rage, that does not preclude an 

inference of premeditation. (People v. Thomas (1992) 2 Cal.4th 

489, 518.)

The evidence further indicates that Morgan encountered 

the victim after he had sustained 16 sharp force wounds and was 

bleeding profusely. Lozoya testified that Kyle was staggering 
22

when he exited the apartment, suggesting that he was weak from 

the loss of blood caused by his severe injuries. Further, she 

testified that the man with the gun followed Kyle towards the 

street and shot him from behind. This is consistent with the 

forensic examiner’s testimony, which suggested that the fatal 

gunshot wound was inflicted to Kyle’s back when he was already 

on the ground. The infliction of multiple gunshot wounds on an 

unarmed and retreating individual is consistent with 

premeditation and deliberation. (See People v. Silva (2001) 25 

Cal.4th 345, 369 [“The manner of killing—multiple shotgun 

wounds inflicted on an unarmed and defenseless victim who 

posed no threat to defendant—is entirely consistent with a 

premeditated and deliberate murder.”]; People v. Brito (1991) 232 

Cal.App.3d 316, 323 [upholding a finding of premeditation and 

deliberation where the defendant shot a retreating victim in the 

back]; see also People v. Koontz (2002) 27 Cal.4th 1041, 1082 

[“firing a shot at a vital area of the body at close range” is 

“indicative of a deliberate intent to kill”].)

With respect to planning activity, the jury could have 

reasonably inferred from the evidence that Harrison and Morgan 

came to the victim’s apartment armed with a knife and gun, 

respectively, which supports a finding of premeditation and 

deliberation. (See People v. Lee (2011) 51 Cal.4th 620, 636 [that 

defendant brought a firearm showed he considered the possibility 

of a violent encounter]; People v. Steele (2002) 27 Cal.4th 1230, 

1250 [“jury could infer that defendant carried the fatal knife into 

the victim’s home in his pocket, which makes it ‘reasonable to 

infer that he considered the possibility of homicide from the 

outset’ ”].) Although both defendants testified that they 

encountered these weapons at Kyle’s apartment, a rational trier 
23

of fact could discredit these claims as improbable and selfserving. Their claim that a fifth man was present was not 

supported by the testimony of Tart or Lozoya or by any conclusive 

DNA evidence, and the man was never identified. The jury could 

reasonably doubt that Harrison disarmed a man 60 to 80 pounds 

heavier and over half a foot taller and pocketed that man’s knife. 

Similarly, a rational trier of fact could doubt Morgan’s claim that 

Kyle, who appeared uneasy about his presence, left a gun sitting 

out for Morgan to take, rather than keeping it on his person. 

Further, Tart testified that he heard Harrison tell Morgan, 

“Shoot this motherfucker. Don’t let him out.” The jury could infer 

that Harrison told Morgan to shoot because he knew that Morgan 

was armed with a gun. 

With respect to motive, Harrison apparently intended to 

buy weed, but had only $1 in his wallet. Morgan testified that he 

intended to buy cocaine and that Kyle’s apartment was a place 

that was known in the neighborhood to have drugs. Morgan had 

$40, but his family had lost their home that day and he intended 

to sell clothes for money to help pay for another place. Although

officers did not recover any drugs from the defendants or from the 

apartment, Morgan told detectives that Kyle had pulled out a bag 

of drugs and handed it to them. As discussed above, a rational 

trier of fact could conclude that Harrison and Morgan were 

armed when they arrived at Kyle’s apartment. Thus, taken all 

together, the evidence permits the inference that Morgan and 

Harrison went to Kyle’s apartment with the purpose of taking 

drugs by force and that there was cocaine there for the taking, 

whatever may have happened to it in the chaos that followed.
24

In sum, we cannot conclude that no rational trier of fact 

could have found premeditation and deliberation beyond a 

reasonable doubt based on the evidence presented. 

Harrison argues that People v. Boatman (2013) 221 

Cal.App.4th 1253 (Boatman) supports that the evidence is 

insufficient to support the first degree murder conviction. In 

Boatman, the defendant shot the victim, his girlfriend, once in 

the face while they were together in his bedroom. (Id. at p. 1258.) 

The defendant gave conflicting accounts of what happened but 

was holding the victim in his arms when the police arrived and 

was heard weeping in the background during the 911 call 

reporting the incident. (Id. at pp. 1258–1261.) The court 

concluded that insufficient evidence supported the conclusion 

that the defendant’s killing of his girlfriend was premeditated, 

citing the Anderson factors. First, the case lacked any evidence of 

planning. “The house was occupied by four other people who 

could identify him. There is no evidence that defendant left the 

room or the house to get a gun, or that he even moved from his 

squatting position on the floor. Indeed, the only evidence 

regarding his possession of the gun was that he took it away from 

Marth just prior to the shooting.” (Id. at p. 1267.) 

The court also concluded that there was “little or no 

relevant motive evidence.” (Boatman, supra, 221 Cal.App.4th at 

pp. 1267–1268.) The court observed that shooting the victim in 

the face supports a finding of malice, it does not necessarily 

support that the gunshot “was pursuant to a ‘ “preconceived 

design” to take his victim’s life . . . .’ ” (Id. at p. 1268.) The court 

observed that, “[e]ven when manner of killing evidence is strong, 

cases in which findings of premeditation and deliberation are 

upheld typically involve planning and motive evidence as well.” 
25

(Ibid.) “Cases that have found sufficient evidence of 

premeditation and deliberation in the absence of planning or 

motive evidence are those in which ‘[t]he manner of the killing 

clearly suggests an execution-style murder.’ ” (Id. at p. 1269.) The 

court in Boatman rejected the prosecution’s contention that 

premeditation and deliberation were established because the 

evidence supported an inference that the defendant “ ‘took the 

time to pull back the hammer, point the pistol at [the victim’s] 

face, and fire the weapon.’ ” (Id. at p. 1273.) 

While the single gunshot to the face in Boatman was 

insufficient to establish deliberation and premeditation under the 

facts there (Boatman, supra, 221 Cal.App.4th at pp. 1268–1269), 

the circumstances here support a contrary result. As discussed, 

the evidence here permits the inference that Harrison stabbed 

the victim sixteen times, including in the abdomen and back, and 

Morgan fired at the victim’s back as he attempted to escape.

Moreover, unlike in Boatman, a rational trier of fact could 

conclude that the defendants had prepared for the possibility of 

violence and came to the apartment where Kyle was staying 

armed with weapons. In Boatman, the gun was already present 

in the room where the defendant and his girlfriend were. (Id. at 

p. 1267.)

Morgan argues that People v. Wear (2020) 44 Cal.App.5th 

1007 (Wear) supports the conclusion that his actions were not 

premeditated or deliberate. In Wear, the defendant took a friend 

to meet the victim, “apparently intend[ing] to buy or steal a gun 

from [the victim] and possibly to supply him with heroin. The 

evidence suggested that an argument arose during the meeting, 

and [the victim], who had two guns with him, shot [the friend] 

once with one of them. [The defendant], who was unarmed, then 
26

seized that gun, shot [the victim] twice with it, and fled with the 

other gun.” (Id. at pp. 1009–1010.) The defendant was convicted 

of first degree murder. (Id. at p. 1010.) The Wear court held there 

was insufficient evidence of premeditation and deliberation. (Id. 

at p. 1023.) Circumstances supporting a finding that the 

defendant “planned to obtain a gun from [the victim], do not, in 

and of themselves, support a reasonable inference that [the 

defendant] planned to kill [the victim].” (Id. at p. 1025.) The 

defendant “had threatened to kill [the victim] months before the 

shootings,” but the threat was both remote in time and “evinced 

no particular plan to follow through.” (Id. at pp. 1028–1029.) 

There was “some evidence of motive,” specifically, the defendant 

and the victim “knew each other and had some sort of falling out 

that may have been unresolved at the time of the shootings.” (Id. 

at p. 1029.) The fact that the defendant shot the victim “twice in 

the face from close range, at least once after [the victim] was 

already lying on the ground” was evidence that the defendant 

“intentionally killed [the victim]” but not evidence of 

premeditation. (Id. at pp. 1029–1031.) Evidence that, after the 

shooting, the defendant fled with the victim’s possessions and 

attempted to avoid arrest “may tend to show guilt” but did not 

“support the conclusion that [the defendant] committed 

premeditated and deliberate murder as opposed to second degree 

murder or any lesser homicide offense.” (Id. at p. 1031.) “In sum, 

the lack of evidence of planning, weak evidence of motive, and 

absence of any other evidence suggesting premeditation and 

deliberation, combined with the strong evidence that [the 

defendant] impulsively shot [the victim] after [the victim] shot 

[the friend], leads us to conclude that insufficient evidence 

supports a verdict of premeditated murder.” (Id. at p. 1032.)
27

Unlike in Wear, the evidence here does not suggest that 

Kyle instigated the altercation that led to his death. Even by 

Harrison’s account, it was the unidentified man who was armed 

with the knife and started stabbing Kyle. A rational trier of fact 

could reject the defendants’ claim that a fifth person was present 

in the apartment and conclude that it was Harrison who attacked

Kyle with the knife without provocation. Similarly, a reasonable 

jury could conclude from the evidence presented that Kyle did not 

approach Morgan in a threatening manner, but that Kyle was 

attempting to get away when Morgan pursued him and shot him 

multiple times. Further, as discussed above, the evidence permits 

the inference that the defendants were armed when they arrived 

at the apartment, unlike the defendant in Wear. 

As the court in Wear cautioned, “ ‘When we decide issues of 

sufficiency of evidence, comparison with other cases is of limited 

utility, since each case necessarily depends on its own facts.’ 

[Citation.]” (Wear, supra, 44 Cal.App.5th at p. 1030.) Given the 

many factual differences between this case and Boatman and 

Wear, we hold that neither case compels the conclusion that 

insufficient evidence supported the jury’s finding of 

premeditation and deliberation as to both Morgan and Harrison. 

2. Morgan’s Claims of Prosecutorial Misconduct

“[A] prosecutor is given wide latitude during argument. The 

argument may be vigorous as long as it amounts to fair comment 

on the evidence, which can include reasonable inferences, or 

deductions to be drawn therefrom.” (People v. Hill (1998) 17 

Cal.4th 800, 819.) “Under California law, a prosecutor commits 

reversible misconduct if he or she makes use of ‘deceptive or 

reprehensible methods’ when attempting to persuade either the 

trial court or the jury, and it is reasonably probable that without 
28

such misconduct, an outcome more favorable to the defendant 

would have resulted. [Citation.]” Under the federal Constitution, 

conduct by a prosecutor that does not result in the denial of the 

defendant’s specific constitutional rights—such as a comment 

upon the defendant’s invocation of the right to remain silent—but 

is otherwise worthy of condemnation, is not a constitutional 

violation unless the challenged action ‘ “so infected the trial with 

unfairness as to make the resulting conviction a denial of due 

process.” ’ [Citations.]” (People v. Riggs (2008) 44 Cal.4th 248, 

298.)

“It is well settled that making a timely and specific 

objection at trial, and requesting the jury be admonished (if jury 

is not waived), is a necessary prerequisite to preserve a claim of 

prosecutorial misconduct for appeal. [Citations.] ‘The primary 

purpose of the requirement that a defendant object at trial to 

argument constituting prosecutorial misconduct is to give the 

trial court an opportunity, through admonition of the jury, to 

correct any error and mitigate any prejudice.’ [Citation.]” (People 

v. Seumanu (2015) 61 Cal.4th 1293, 1328.)

Morgan acknowledges that his counsel failed to object to 

the prosecutor’s comments shifting the burden of proof and 

criticizing appellant’s failure to remember details about the fifth 

person in the apartment. He argues that appellate courts are not 

prohibited from reaching questions that were not preserved for 

review and, in the alternative, he received ineffective assistance 

of counsel. We exercise our discretion to address these claims on 

the merits to eliminate the need to address his alternative 

ineffective assistance of counsel claim. (See In re Victor L. (2010) 

182 Cal.App.4th 902, 928.)
29

2.1. Reference to Defendants’ Ability to Have 

Materials Tested

Morgan contends that the prosecutor’s argument that 

defendants could have requested access to evidence to perform 

their own DNA testing improperly shifted the burden of proof to 

defendants. We conclude that the prosecutor’s argument 

constituted a fair comment on the evidence. Further, any error 

was harmless considering the court’s instruction that the People

bear the burden of proof and the prosecutor’s repeated 

acknowledgment that she had the burden. 

2.1.1. Additional Background

During his cross-examination of criminalist Robert 

Broderick, counsel for Morgan asked Broderick whether, in 

addition to the samples he tested, he was aware of 29 additional 

samples that were taken from the inside of the apartment and 

two additional samples that were taken from the outside. 

Broderick stated that he was not aware of the additional swabs 

and that he had not been asked to test any samples beyond the 

12 that he tested. 

On redirect, the prosecutor asked Broderick whether the 

defense has the ability to test samples from the case, including 

those taken from the exterior of the apartment that Broderick did 

not test. Broderick stated that the defense team can request that 

evidence be released for testing and that he has made evidence 

available to defense teams in the past. 

During his questioning of Detective Flaherty, counsel for 

Morgan once again raised the 29 blood samples collected from the 

interior of the apartment and the two blood samples collected 

from the exterior of the apartment. Detective Flaherty stated 
30

that he did not request that those specific samples be tested. He 

explained that he knew from other evidence that only four people 

were present at the time of the murder and that, since the 

apartment was used by many people and multiple people came 

and went, it was likely that the samples could reflect DNA from 

anybody. 

The court instructed the jury: “A defendant in a criminal 

case is presumed to be innocent. This presumption requires that 

the People prove a defendant guilty beyond a reasonable doubt. 

Whenever I tell you the People must prove something, I mean 

they must prove it beyond a reasonable doubt.” 

In her opening argument, the prosecutor stated: “My 

opening argument is going to be a little bit lengthy because I 

have the job, I have the burden. So—I also have the job of proving 

to you not only the facts but explaining the law.” Later in her 

opening argument, the prosecutor reiterated that “[t]he People 

have the burden to prove this case to you beyond a reasonable 

doubt. There is no question about that. It’s my burden, and I have 

to prove it to you beyond a reasonable doubt.” 

Counsel for Harrison argued during his closing that the 

fact that one or two of the DNA samples came back inconclusive 

“lends support to the idea that there was a fifth person there.” 

During her rebuttal argument, the prosecutor explained, “I have 

the burden; so I have the last argument.” She argued that there 

was no evidence to support that a fifth person was present in the 

apartment and explained that “only two items of DNA 

evidence . . . came back inconclusive.” The first item was the gun 

grip and the second item was the right shoe worn by defendant 

Morgan, for which the DNA evidence said that there were at least 

three male contributors who could not be identified. The 
31

prosecutor argued: “How does that suddenly equal there’s a fifth 

person inside the house? If there was truly a fifth person inside of 

the house, ladies and gentlemen, and defendant Harrison had 

said that to you, why didn’t they have any of the 29 swabs in the 

house tested? Why didn’t they? You hear the DNA lab tell you 

that they keep it for people if they want more testing, if they 

want re-testing, if defense wants to request testing. If they had 

information there was a fifth person inside of the house, why 

didn’t they have the 29 swabs tested?” Defense counsel did not 

object to this argument. 

2.1.2. Analysis

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.’ [Citation.]” (People v. Turner (2004) 34 

Cal.4th 406, 419.) “A distinction clearly exists between the 

permissible comment that a defendant has not produced any 

evidence, and on the other hand an improper statement that a 

defendant has a duty or burden to produce evidence, or a duty or 

burden to prove his or her innocence.” (People v. Bradford (1997) 

15 Cal.4th 1229, 1340 [prosecutor’s comments did not 

impermissibly shift the burden where prosecutor stated at the 

outset the prosecution had the burden of proof].)

In People v. Cook (2006) 39 Cal.4th 566, the prosecution’s 

expert witness testified that the bullets that killed two of the 

murder victims came from the same gun. The defense theory was 

that two different guns had been used. In closing, the prosecutor 

addressed the defense theory, asking where the second gun was 

and stating that the defense could have called experts, but did 

not. (Id. at p. 607.) After the defense objected that the prosecutor 

was burden shifting, the trial court reminded the jury that the 
32

prosecutor had the burden of proof. The prosecutor acknowledged 

this burden, but again argued the defendant had a right to 

produce an expert who could have testified whether the bullets 

were consistent with two different guns having been used to kill 

the two victims. (Id. at p. 608.) After noting that “[a] prosecutor 

may make fair comment on the state of the evidence,” the court 

concluded the prosecutor’s statements were fair comment on the 

absence of evidence of a second gun. Moreover, the trial court had 

properly admonished the jury that the People bore the burden of 

proof. (Ibid.)

We conclude that the circumstances here are comparable to 

those present in People v. Cook, supra, 39 Cal.4th 566, and that 

the prosecutor did not commit error. Counsel for Morgan

questioned multiple witnesses about the untested samples, and 

counsel for Harrison argued that the fact that certain DNA 

analyses were inconclusive supported that a fifth person was 

present. As Morgan acknowledges, the defense’s theory “was that 

Tart was wrong and a fifth person was in that apartment.” The 

prosecutor could fairly comment on the absence of any material 

evidence supporting this theory. Morgan concedes that the 

prosecutor did not state that defense counsel was obligated to 

perform additional testing but argues that her statements 

suggested that the defendants had the burden to prove innocence. 

We disagree. The prosecutor did not argue defendants were

required to present any evidence and repeatedly stated that she 

bore the burden of proof. 

Although Morgan contends that the circumstances of 

People v. Frye (1998) 18 Cal.4th 894 are distinguishable from 

those present here, we believe that Frye supports the conclusion 

that the prosecutor did not commit error. In Frye, the prosecutor 
33

pointed out in closing argument that the jury had been told that 

they would hear from a neuropsychologist who did not end up 

testifying for the defense. (Id. at p. 973.) The prosecutor argued, 

“ ‘[Y]ou may reasonably infer, if that psychologist had some real 

helpful information to the defense, you would have heard from 

her.’ ” (Ibid.) Our Supreme Court “conclude[d] that the 

prosecutor’s reference to the defense team’s failure to call [the 

neuropsychologist] was proper. Here, the prosecutor’s remark 

was a comment on a weakness in defendant’s theory of the case, 

in no way suggesting defendant had the burden of proving his 

innocence. To the contrary. She told jurors the People had the 

burden of proof on each and every count. Moreover, the trial court 

instructed the jury defendant was presumed innocent until his 

guilt was proven, and that this presumption placed on the 

prosecution the burden of proving him guilty beyond a reasonable 

doubt.” (Ibid.) These same mitigating factors are present here.

Even if we concluded that the prosecutor’s argument was 

improper, we would find no prejudice considering the court’s 

instructions and the prosecutor’s acknowledgment that she had 

the burden. Thus, there is no “ ‘ “reasonable likelihood that the 

jury construed or applied any of the complained-of remarks in an 

objectionable fashion.” [Citation.]’ ” (People v. Carter (2005) 36 

Cal.4th 1215, 1263.)

2.2. Eliciting Improper Opinion Testimony 

Morgan argues that the prosecutor improperly sought 

opinion testimony from Detective Flaherty concerning Lozoya’s 

demeanor. We conclude that this claim was forfeited. Even if we 

reached this contention, we would conclude that any error was 

harmless because the court sustained defense counsel’s objections 

and ordered the jury to disregard the questions. 
34

2.2.1. Additional Background

During her redirect examination of Detective Flaherty, the 

prosecutor asked several questions about Lozoya’s statements to

Detective Flaherty in her prior interview and played portions of 

that interview for the jury. The prosecutor then inquired whether 

Detective Flaherty had observed her demeanor when she testified 

at trial, and whether he was present when she approached 

Morgan’s mother. He answered both questions in the affirmative. 

The prosecutor asked whether Lozoya “wanted [Morgan’s mother] 

to know that she wasn’t in any way implicating anyone in this 

case.” Counsel for Morgan objected and the court sustained the 

objection. The prosecutor then asked, “Based on her demeanor 

and how you saw her testify—and I’m assuming the hundreds of 

trials that you’ve been part of involving gang-related incidents—

is that uncommon, her behavior to you?” Counsel for Morgan 

objected and the court sustained the objection. The prosecutor

asked, “Well, was it surprising to you that she was—” Counsel for 

Morgan again objected, and the court sustained the objection. 

The prosecutor asked no further questions. 

The court instructed the jury, “You must decide what the 

facts are. It is up to all of you and you alone to decide what 

happened based only on the evidence that has been presented to 

you in this trial.” It further instructed, “During the trial the 

attorneys may have objected to questions or moved to strike 

answers given by the witnesses. I ruled on the objections 

according to the law. If I sustain an objection, you must ignore 

the question. If the witness was not permitted to answer, do not 

guess what the answer might have been or why I ruled as I did.”
35

2.2.2. Analysis 

As discussed above, a defendant may not complain on 

appeal of prosecutorial misconduct unless the defendant made a 

timely objection and requested that the jury be admonished to 

disregard the impropriety. (People v. Seumanu, supra, 61 Cal.4th 

at p. 1328.) This requirement is excused only if an objection

would have been futile or an admonition would not have cured 

the harm. (People v. Dykes (2009) 46 Cal.4th 731, 760.)

Morgan’s trial counsel objected to the prosecutor’s 

questions to Detective Flaherty regarding Lozoya, but he did not 

request that the court admonish the jury. Morgan fails to argue 

on appeal that an admonition would have been futile. Thus, the 

claim of prosecutorial misconduct was not preserved.

Even if we reached this issue, we would not find the 

prosecutor’s questions to be prejudicial. The court sustained trial 

counsel’s objections before Detective Flaherty even responded to 

the questions that Morgan contends solicited inappropriate 

opinion testimony. Considering the court’s instructions and 

admonition, it is unclear how the questions could have 

improperly influenced the jury or prejudiced Morgan when 

Detective Flaherty did not even respond. (See People v. Greeley

(2021) 70 Cal.App.5th 609, 620 [even assuming misconduct, 

prosecutor’s question was harmless where “defense counsel’s 

objection was sustained before the prosecutor even finished the 

question or [the witness] responded].) 

2.3. References to Defendants’ Post-Arrest Silence

Morgan contends that certain lines of questioning and 

argument by the prosecutor were error under Doyle v. Ohio

(1976) 426 U.S. 610 (Doyle), which held that a defendant’s 
36

postarrest silence after Miranda warnings are given may not be 

used to impeach the defendant’s trial testimony, or at trial to 

imply guilt from that silence. (See People v. Hollinquest (2010) 

190 Cal.App.4th 1534, 1555.) We conclude that the sole comment 

concerning Morgan was not improper under Doyle. Even 

assuming that the prosecutor committed error by commenting on 

Harrison’s silence, we perceive no prejudice to Morgan. 

2.3.1. Additional Background

During her cross-examination of defendant Harrison, the 

prosecutor asked Harrison why he had not mentioned the six-foot

tall, 200-pound man who was purportedly also in the apartment 

to Detective Flaherty while making his statement. After receiving 

no direct response to the question, the prosecutor asked again: 

“Everything you’ve testified today in court in front of this jury 

you never told Detective Flaherty in your interview. Isn’t that 

true? Yes or no.” Harrison agreed that it was true and stated that 

he “[n]ever told [Detective Flaherty] nothing” and “never will tell 

him nothing.” The prosecutor asked whether it was true that 

Harrison had never told anyone what he testified to in court that 

day. Harrison replied that he “never talked to the detective about 

nothing that happened in that apartment.” 

The prosecutor then asked Harrison whether he had been 

in court on at least 20 occasions over the last year and a half, 

including the preliminary hearing, during which the prosecution 

put on evidence. Harrison agreed. The prosecutor then asked: 

“And you have never, ever told this story in court ever before this 

date. Isn’t that true?” Defense counsel objected and the court 

sustained the objection and instructed the jury to ignore the 

question and the answer.
37

Outside the presence of the jury, the judge stated: “I’m just 

going to put all counsel on notice there should not be any 

reference to the fact that Mr. Harrison did not say anything or 

talk or mention or give any information regarding him testifying 

because he has the right to remain silent. So, now, if he can be 

impeached with a prior statement, that’s different. But he has—

has the right to remain silent up until this point. So that’s why I 

sustained that objection. That’s why I admonished the jury to 

ignore not only the question but to disregard the question and 

response. [¶] So are we—everyone on the same footing as to that 

matter I’m assuming?”

The prosecutor argued that Harrison had waived that right 

by testifying, but the court disagreed and stated, “You can cross 

examine him, but you can’t question him about the fact that he 

previously exercised his right to remain silent . . . .” The court 

further warned the prosecutor that “if you choose to go there in 

closing argument, you’re committing reversible error.”

During her closing argument, the prosecutor argued that 

there was no evidence of a fifth person in the apartment “[o]ther 

than [Harrison’s] statement, other than his testimony.” She 

further stated, “And it’s funny how he never mentioned during 

his interview to Detective Flaherty that there was this fifth 

person stabbing a victim who was six feet tall, 220 pounds with 

braids. He kept that. He kept that in his heart, ladies and 

gentlemen, and made sure he was only going to say it a year and 

a half later when he was sitting in trial [in] front of you guys 

because that makes sense. I’m going to sit here a year and a half 

pending a murder investigation, a murder charge, but I’m not 

going to tell anybody who did it, and I’m only going to bring out 

this man with the braids in court.” Counsel for Harrison and 
38

Morgan objected and the court held a side bar. Counsel for 

Morgan argued that the prosecutor was “hinting and going at the 

fact that he did not make any statements prior to that which he 

doesn’t have to. It’s his Fifth Amendment right.” The court 

echoed this concern and advised the prosecutor: “You know, 

whether he may have said it was somebody else, that’s fine. You 

can argue that. But stay away from any hint that because 

someone exercised their right to remain silent that the jurors can 

consider that.” 

The prosecutor argued that once a defendant takes the 

stand, he waives his Fifth Amendment right. The court replied, “I 

indicated previously my position on this. If you want to continue 

to go that route, you can. It’s up to you. But I think that what you 

said out there in terms of what he said to the detective, that’s 

fine. You can argue that he didn’t mention it to the detective. But 

you can’t imply to the jurors find him guilty or find that he was 

guilty or that there’s evidence of his guilt because they exercised 

their right to remain silent. It’s akin to Doyle error.”

The prosecutor argued again that Harrison had waived his 

right to remain silent by waiving his Miranda rights and giving a 

statement to detectives. The court replied, “So you can talk about 

that statement. I agree with you there, But I’m suggesting and I 

said earlier why you would want to create an issue, I don’t know 

in that area when it’s not necessary. And as I’ve indicated, I 

directed you—I would suggest you stay away from there . . . . But 

the inference that I don’t want the jury to think about is they 

consider the fact that he may have chosen to remain silent at 

that time because he had the right at that time.” Counsel for 

Morgan asked that the court find that the prosecutor had 

engaged in misconduct, that it was error, and asked that the 
39

court admonish the jury about Harrison’s Fifth Amendment 

rights. Counsel for Harrison joined in the request. After further 

argument from the prosecutor, the court denied the request for 

mistrial but warned the prosecutor, “[I]f you go there again, I’m 

sure we’ll have another side bar. It’s up to you.” The prosecutor 

stated that she was done pursuing that line of argument and 

stated, “I made it clear that I was taking about [Harrison] never 

said it to the detective.” The court agreed that “[t]hat part is 

fine.” The court further stated that it would not admonish the 

jury, explaining, “I’d rather not have the jury think about that 

issue and have them discuss it . . . It was a quick reference. It 

was slight. You objected. We dealt with it at side bar. I think 

we’re okay.” 

Later in her argument, the prosecutor stated, “It’s funny 

also that defendant Morgan never told the detectives about this 

unknown assailant. He told you in the trial, but we know from 

his interview he told the detectives that two people were fighting 

with Tap and Gerod. Those were his exact words. And that was 

the part of the interview that you heard yesterday. [¶] So why 

would he lie to the detective when he’s actually trying to get 

himself out of trouble during the interview and say it was Tap 

and Gerod but then come to court and say no, it actually wasn’t 

Gerod. It was somebody else? That doesn’t make any sense.” 

Defense counsel did not object to these statements. 

Following the conclusion of the prosecutor’s closing 

argument, the court stated that it wanted to “put a couple things 

on the record” with regards to the side bar conversation. The 

court explained, “The prosecutor may point out the 

inconsistencies between the defendant’s statement to the police 

and his jury trial testimony which is exactly what I’ve said you’re 
40

free to do, but it is Doyle error to do so by showing that the 

defendant did not talk to police again after giving a statement 

and before trial.”

2.3.2. Analysis 

“In Doyle, the United States Supreme Court held that it 

was a violation of due process and fundamental fairness to use a 

defendant’s postarrest silence following Miranda warnings to 

impeach the defendant’s trial testimony. [Citation.] However, 

Doyle does not apply when a defendant presents exculpatory 

testimony at trial inconsistent with a voluntary post-Miranda 

statement. [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 

203 (Collins).)

The United States Supreme Court addressed Doyle error in 

Anderson v. Charles (1980) 447 U.S. 404 (Anderson v. Charles). In 

Anderson v. Charles, the defendant waived his Miranda rights 

and said that he had stolen the murder victim’s car from a 

particular location. (Id. at p. 405.) At trial, he testified that he 

stole the car from a different location. (Ibid.) The prosecutor 

questioned the defendant about his opportunity to change the 

facts and then asked: “ ‘Don’t you think it’s rather odd that if it 

were the truth[,] that you didn’t come forward and tell anybody 

at the time you were arrested, where you got the car?’ ” (Id. at 

pp. 405–406.) In a per curiam opinion, the court held that “Doyle

bars the use against a criminal defendant of silence maintained 

after receipt of governmental assurances. But Doyle does not 

apply to cross-examination that merely inquires into prior 

inconsistent statements. Such questioning makes no unfair use of 

silence because a defendant who voluntarily speaks after 

receiving Miranda warnings has not been induced to remain 
41

silent. As to the subject matter of his statements, the defendant 

has not remained silent at all. [Citations.]” (Id. at p. 408.)

In Collins, the defendant argued that the prosecutor had 

violated Doyle by questioning the defendant about his failure to 

reveal an alibi to a detective or during his prior court 

appearances, and by commenting on his failure to raise his alibi 

in her closing argument. (Collins, supra, 49 Cal.4th at pp. 199–

202.) Our high court concluded that no Doyle error had occurred. 

(Id. at p. 203.) The court observed that, as in Anderson v. 

Charles, the “[d]efendant was not ‘silent’ on his whereabouts at 

the time of the murder; he chose to provide varied explanations 

that differed from his trial testimony. The Supreme Court stated 

in Anderson that each of the ‘inconsistent descriptions of events 

may be said to involve “silence” insofar as it omits facts included 

in the other version. But Doyle does not require any such 

formalistic understanding of “silence,” and we find no reason to 

adopt such a view in this case.’ [Citation.]” (Id. at p. 204.) The 

Collins court further explained that the defendant’s complaint 

“that the prosecutor did not question him about inconsistencies in 

his statements, but instead focused on his failure to reveal his 

alibi” had similarly been addressed in Anderson v. Charles. (Ibid.) 

The Supreme Court rejected the federal appeals court’s 

conclusion “that the exchange regarding the defendant’s ‘ “failure 

to tell arresting officers the same story he told the jury” ’ was an 

unconstitutional inquiry about postarrest silence . . . explaining 

that the prosecutor’s cross-examination could not be ‘bifurcated 

so neatly’ and must be considered as a whole” and concluding 

“that questions regarding the defendant’s failure to tell the police 

the same story ‘were not designed to draw meaning from silence, 
42

but to elicit an explanation for a prior inconsistent statement.’ 

[Citation.]” (Ibid.) 

The California Supreme Court concluded that “the 

prosecutor properly questioned defendant about the different 

explanations he gave [the detective]” and her “questions 

regarding defendant’s failure to come forward earlier with his 

alibi were asked in the context of those interview statements.”

(Collins, supra, 49 Cal.4th at p. 204.) Thus, “[t]he questions were 

a legitimate effort to elicit an explanation as to why, if the alibi 

were true, defendant did not provide it earlier. As such, neither 

the questions nor the prosecutor’s remarks in closing argument 

were ‘designed to draw meaning from silence.’ [Citation.]” (Ibid.)

Much of the questioning and argument that Morgan cites

pertained to Harrison, who does not raise this issue or join in 

Morgan’s argument. With respect to the comment pertaining to 

Morgan, we perceive no error. The prosecutor pointed out that 

Morgan, who waived his Miranda rights and agreed to speak 

with detectives, told them that he had witnessed Kyle and 

Harrison fighting. At trial, he claimed that Kyle was fighting 

with a different man whom he had not mentioned to the 

detectives. As in Anderson v. Charles, Morgan was not silent 

about the subject matter of his later testimony, and thus Doyle 

does not apply to the prosecutor’s argument addressing his prior 

inconsistent statements. 

We next turn to whether the prosecutor’s statements 

concerning Harrison were error and, if so, whether those errors

prejudiced Morgan. With respect to the prosecutor’s commentary 

on Harrison’s failure to mention the unidentified fifth man 

during his various appearances in court, we will assume for the 

sake of argument that the prosecutor improperly commented on 
43

Harrison’s post-arrest silence. However, the court sustained the

objection from defense counsel and admonished the jury to 

disregard the question and answer. “The United States Supreme 

Court has explained that a Doyle violation does not occur unless 

the prosecutor is permitted to use a defendant’s postarrest silence 

against him at trial, and an objection and appropriate instruction 

to the jury ordinarily ensures that the defendant’s silence will not 

be used for an impermissible purpose.” (People v. Clark (2011) 52 

Cal.4th 856, 959.) Morgan fails to argue that the court’s 

instruction to the jury was inadequate. Thus, we conclude that 

there was no Doyle violation.

We also perceive no error in the prosecutor’s statement 

concerning Harrison during her closing argument. “[T]he Doyle

rule [does] not prohibit the prosecution’s use of [the defendant’s] 

selective silence as adoptive admissions” where the defendant 

“voluntarily spoke with a police detective after receiving Miranda

warnings.” (People v. Bowman (2011) 202 Cal.App.4th 353, 364.) 

The prosecutor commented on the fact that Harrison spoke with 

Detective Flaherty yet did not mention the presence of the fifth 

man. The record indicates that Harrison waived his Miranda 

rights, agreed to speak with defendants, and responded to certain

of their questions, including whether the backpack belonged to 

Morgan. There is no basis in the record to conclude that 

Harrison’s failure to inform detectives of the presence of the fifth 

man was because he invoked his right to remain silent. Thus, the

brief portion of the prosecutor’s argument addressing Harrison’s 

postarrest silence was not an attempt to draw attention to that 

silence as substantive evidence of guilt, but to point out that 

Harrison willingly spoke with detectives yet failed to inform them 

of exculpatory information on which he later relied. The 
44

circumstances here are thus comparable to Collins, where the 

defendant spoke with detectives but did not mention the alibi on 

which he later relied. Considered in context, it does not appear 

that the prosecutor’s remarks during argument were meant to 

draw meaning from a post-Miranda or post-appointment-ofcounsel invocation of silence by Harrison. The prosecutor’s 

commentary on Harrison’s silence concerning the fifth man was 

raised “in the context of [his prior] interview statements” and was 

not a Doyle violation. (Collins, supra, 49 Cal.4th at p. 204.)

Assuming for the sake of argument that the prosecutor did 

commit a Doyle violation with respect to her questioning or 

argument, we conclude any such error was harmless beyond a 

reasonable doubt and, therefore, does not require reversal. (See 

People v. Quartermain (1997) 16 Cal.4th 600, 621; People v. 

Galloway (1979) 100 Cal.App.3d 551, 559; Chapman v. California

(1967) 386 U.S. 18.) To determine whether reversal is necessary 

based on a Doyle error, we must consider the extent of the 

comments made, how the statement would have been understood 

by a reasonable juror in context, whether the prosecutor 

suggested an inference of guilt based on the invocation, and the 

overall strength of the case. (People v. Benson (1990) 52 Cal.3d 

754, 793; People v. Hollinquest, supra, 190 Cal.App.4th at p.

1559.) We will not assume that the jury drew the most damaging 

meaning possible from the disputed comments; instead, the 

defendant must establish a reasonable likelihood that the jury 

understood and applied the comments in an improper manner. 

(People v. Frye, supra, 18 Cal.4th at p. 970; People v. Spector

(2011) 194 Cal.App.4th 1335, 1403.)

The evidence against Morgan was very strong. He admitted 

to shooting Kyle. There was also substantial evidence to support 
45

that Morgan pursued Kyle, who had already sustained four fatal 

wounds, while he attempted to stagger away and shot him

multiple times. Whether the fifth man was present or not had far 

more bearing on Harrison’s case than Morgan’s. Thus, it is 

unlikely that the jury would place much, if any, weight on the 

fact that Morgan did not mention the fifth man during his 

interview with detectives when determining whether he was

guilty. To the extent that the prosecutor erroneously used 

Harrison’s selective silence during questioning with detectives or 

during prior court appearances to undermine his credibility, it is 

unclear what impact this would have had on Morgan’s case. 

Harrison testified that he did not notice Morgan after the fight 

began, and thus said nothing that corroborated Morgan’s claim 

that he shot Kyle out of fear and to defend himself.

2.4. Prosecutor’s Purported Misstatement of the Law 

Concerning Self-Defense

Morgan argues that the prosecutor misstated the law of 

imperfect self-defense by stating that the standard was 

subjective. We conclude that any error was harmless, as the jury 

was correctly instructed on the law and was instructed to follow 

the court’s instructions over the argument of counsel.

2.4.1. Additional Background

The court instructed the jury: “You must follow the law as I 

explain it to you even if you disagree with it. If you believe that 

the attorneys’ comments on the law conflict with my instructions, 

you must follow my instructions.” 

With respect to justifiable homicide, the jury was 

instructed with CALCRIM No. 505. In relevant part, the 

instruction stated: “The defendant Dean Morgan is not guilty of 
46

murder if he was justified in killing someone in self-defense. The 

defendant acted in self-defense if: [¶] 1. The defendant reasonably 

believed he was in imminent danger of being killed or suffering 

great bodily injury; [¶] 2. The defendant reasonably believed that 

the immediate use of deadly force was necessary to defend 

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

force than was reasonably necessary to defend against the 

danger. [¶] . . . Defendant’s belief must have been reasonable and 

he must have acted only because of that belief. The defendant is 

only entitled to use that amount of force that a reasonable person 

would believe is necessary in the same situation. If the defendant 

used more force than was reasonable, the killing was not 

justified. [¶] When deciding whether the defendant’s beliefs were 

reasonable, consider all the circumstances as they were known to 

and appeared to the defendant and consider what a reasonable 

person in a similar situation with similar knowledge would have 

believed. If the defendant’s beliefs were reasonable, the danger 

does not need to have actually existed.”

During her closing argument, while discussing Morgan’s 

claim of self-defense, the prosecutor stated that complete selfdefense requires that the defendant was “confronted with the 

immediate threat of great bodily injury or death.” She continued, 

“We have an individual who is bleeding to death having been 

stabbed 15 times walking towards you. Where is the imminent 

danger of great bodily injury to you? You’re the one holding the 

gun. [¶] Still, if you want to believe that, an unarmed individual 

having been stabbed 15 times taking his last few breaths coming 

at you, you find that to be terrifying? If you even believe it 

happened that way, you have to shoot them four times? Is that 

reasonable use of deadly force? And this—this complete self-
47

defense is what a reasonable person in the same situation as the 

defendant would do, not what the defendant would do. So it’s not 

subjective.” 

Counsel for Morgan objected that this argument misstated 

the law. The court overruled the objection and informed the jury, 

“Just keep in mind, as I already indicated if the attorneys say 

something in their arguments that conflicts with my instructions 

on the law, you’re to follow my instructions.”

2.4.2. Analysis

“ ‘[I]t is improper for the prosecutor to misstate the law 

generally [citation] . . . . Improper comments violate the federal 

Constitution when they constitute a pattern of conduct so 

egregious that it infects the trial with such unfairness as to make 

the conviction a denial of due process. [Citation.] Improper 

comments falling short of this test nevertheless constitute 

misconduct under state law if they involve use of deceptive or 

reprehensible methods to attempt to persuade either the court or 

the jury. [Citation.] To establish misconduct, defendant need not 

show that the prosecutor acted in bad faith.” (People v. Cortez

(2016) 63 Cal.4th 101, 130.) “But a prosecutor is allowed to 

vigorously argue the case and is afforded ‘significant leeway’ in 

discussing the facts and the law in closing argument. [Citations.]” 

(People v. Azcona (2020) 58 Cal.App.5th 504, 516.)

It is a close question whether the prosecutor misstated the 

law in the portion of her argument identified by Morgan. The 

prosecutor’s statement that the standard is “not subjective” is 

correct in the sense that the jury must “consider what a 

reasonable person in a similar situation with similar knowledge 

would have believed” and cannot conclude that a homicide was 

justifiable based only on what the defendant subjectively
48

believed. However, to the extent that the prosecutor’s argument

suggested that the defendant must have been objectively correct 

about the presence of danger, her argument was contrary to the 

law. As the instruction states, a danger need not have existed so 

long as the defendant’s beliefs regarding it were reasonable. 

Assuming the prosecutor misstated the law, Morgan has 

failed to show prejudice. He has not demonstrated there is a 

reasonable probability that the result of the proceeding would 

have been more favorable to him but for counsel’s failure to 

object. There is no dispute that CALCRIM No. 505 accurately 

stated the law of justifiable homicide. The jury was instructed 

that, if the attorneys’ comments on the law conflicted with the 

trial court’s instructions, they must follow the law as the trial 

court explained it to them. The court also reminded the jury of 

this instruction when the prosecutor made the arguments 

concerning justifiable homicide to which Morgan’s counsel 

objected. “ ‘When argument runs counter to instructions given a 

jury, we will ordinarily conclude that the jury followed the latter 

and disregarded the former, for “[w]e presume that jurors treat 

the court’s instructions as a statement of the law by a judge, and 

the prosecutor’s comments as words spoken by an advocate in an 

attempt to persuade.” [Citation.]’ ” (People v. Centeno (2014) 60 

Cal.4th 659, 676 (Centeno); see also People v. Cortez, supra, 63 

Cal.4th 101, 131–132 [“ ‘Juries are warned in advance that 

counsel’s remarks are mere argument, missteps can be 

challenged when they occur, and juries generally understand that 

counsel’s assertions are the “statements of advocates.” ’ ”].)

Finally, the prosecutor’s misstatement was brief, and the 

evidence indicating that Morgan did not act in self-defense was

strong. 
49

2.5. Statement Pointing Out Morgan’s Failure to 

Remember Details

Morgan argues that the prosecutor committed error by 

denigrating his failure to remember the details of what happened 

the day of the murder. This claim is without merit.

2.5.1. Additional Background

During closing argument, the prosecutor stated: “There’s no

corroboration that there was a fifth person inside the house. The 

only evidence that there was a fifth person inside of [the] house is 

defendant Harrison’s testimony. Even defendant Morgan initially 

said there was nobody else in the house. When he testified in 

front of you at trial he also said there was somebody else, but 

what’s interesting is defendant Harrison remembered this person 

had braids but Morgan could just remember that he was tall. If 

you’re both standing trial because somebody else murdered your 

homie or tried to murder your homie, you don’t remember? You’d 

remember the details about this person.”

2.5.2. Analysis

As discussed above, a prosecutor is given wide latitude 

during argument and may argue vigorously so long as her 

commentary on the evidence is fair. (People v. Hill, supra, 17 

Cal.4th at p. 819.) The prosecutor argued that Morgan’s inability 

to describe the purported fifth person in the apartment in any 

detail called the credibility of his testimony into doubt. This was 

a fair commentary on the evidence and fell within the wide 

latitude given to prosecutors during closing argument. (See 

People v. Edwards (2013) 57 Cal.4th 658, 763 [prosecutor’s 

closing argument that defendant’s assertion he did not remember 

the murders should not be credited was fair comment on the state 
50

of the evidence]; see also People v. Schmeck (2005) 37 Cal.4th

240, 298 [no misconduct in referring to defendant as a “ ‘dope 

dealing lying rat’ ”]; People v. Edelbacher (1989) 47 Cal.3d 983, 

1030 [the prosecutor’s argument that defendant was a “ ‘snake in 

the jungle,’ ” “ ‘slick,’ ” “ ‘tricky,’ ” a “ ‘pathological liar,’ ” and 

“ ‘one of the greatest liars in the history of Fresno County’ ” was 

not misconduct].)

3. Harrison’s Claims of Prosecutorial Misconduct 

Harrison raises three claims of prosecutorial misconduct in 

connection with statements made by the prosecutor during 

closing argument. His trial counsel objected to none of these 

statements during trial. He argues that the claims are 

nevertheless cognizable and, to the extent they are forfeited, he 

received ineffective assistance of counsel. We again exercise our 

discretion to address these claims on the merits. (See In re Victor 

L., supra, 182 Cal.App.4th at p. 928.)

3.1. Facts Not in Evidence 

Harrison contests that the prosecutor argued facts not in 

evidence when she asserted several times during closing 

argument that Morgan and Harrison intended to steal from the 

victim. We conclude that the prosecutor did not err and that any 

error was not prejudicial. 

3.1.1. Additional Background

The court instructed the jury: “Evidence is the sworn 

testimony of witnesses, the exhibits admitted into evidence, and 

anything else I told you to consider as evidence. Nothing that the 

attorneys say is evidence. In their opening statements and 

closing arguments the attorneys discuss the case but their 
51

remarks are not evidence. Their questions are not evidence. Only 

the witness’s answers are evidence.”

At the beginning of her opening argument, the prosecutor 

argued: “We’re here because of the defendants’ actions. The two 

defendants that sat before you throughout this trial chose to 

conduct a series of actions that they chose themselves. Waking up 

that morning, setting out to 107th and Main knowing why they 

were going there, knowing who lived there, knowing what Tap 

had to offer, and knowing what they wanted to gain. [¶] . . . [¶]

They made their way to apartment number five, and they made 

sure that they didn’t leave until they got what they wanted. And 

what you see, the state that you see this apartment is what they 

did, ladies and gentlemen.” 

Later in her opening argument, the prosecutor argued, 

“[Marvin Tart] says, ‘They told me to get in the room so they 

could handle their business.’ This is important because it’s 

consistent with what we know that they went over there with the 

express intent to rob victim Albert Kyle.” She also stated: “Did 

they think about their decision before they went into Mr. Kyle’s 

house to kill him? Did they think about what they were doing 

every time they stabbed or shot at him. Absolutely. How do we 

know that? They armed themselves with weapons before they 

left . . . . They went there together knowing that they were going 

there to get the drugs and to leave without paying for the drugs.” 

Finally, she asserted that the defendants’ version of events was 

not plausible and that, “[o]n May 26th, 2018, the two of them 

went there with the express intent to take advantage of Tap, to 

leave with what they could. And when they couldn’t get what 

they wanted, they killed him.” 
52

During the rebuttal argument, the prosecutor asserted: 

“We know that they went there together from defendant 

Morgan’s mother’s home. They left her home, and they went 

there together with a plan . . . . [¶] We know that they went there 

to rob him because their actions were coordinated. Once the 

drugs were turned over, defendant Harrison went in the back 

with the victim, and that’s where the stabbing began and 

defendant Morgan always stayed in the front and looked, 

remained as a lookout. Their actions were coordinated, and the 

drugs were gone. [¶] Defendant Morgan said in his statement to 

the defendant [sic] that Tap pulled out the drugs, pulled out the 

drugs and gun and was staring at him while he was divvying up 

the drugs. That’s what he told Detective Flaherty in the 

statement. So where were the drugs?”

3.1.2. Analysis 

“A prosecutor engages in misconduct by misstating facts or 

referring to facts not in evidence, but he or she enjoys wide 

latitude in commenting on the evidence, including urging the jury 

to make reasonable inferences and deductions therefrom. 

[Citation.]” (People v. Ellison (2011) 196 Cal.App.4th 1342, 1353; 

People v. Farnam (2002) 28 Cal.4th 107, 169 (Farnam) 

[“ ‘Prosecutors have wide latitude to discuss and draw inferences 

from the evidence at trial.’ [Citation.] ‘Whether the inferences the 

prosecutor draws are reasonable is for the jury to decide.’ 

[Citation.]”].)

In Farnam, the defendant argued that the prosecutor 

misstated evidentiary facts and misled the jury on whether the 

victim’s killing was premeditated and deliberate. (Farnam, 

supra, 28 Cal.4th at p. 169.) The evidence showed that the victim

had telephoned a friend for an hour prior to the attack. (Ibid.) 
53

The victim’s children testified that she would use the telephone 

in the living room downstairs for long calls and often left the 

living room screen door open and the curtains to that door 

partially open. (Id. at pp. 169–170.) The interior of the living 

room was visible from street level. (Id. at p. 170.) The evidence 

further supported that the telephone cords had been cut, the 

victim had been attacked on the upstairs level of the residence, 

and the lower rooms (which contained entertainment equipment

and envelopes of cash) “were relatively undisturbed despite the 

intruder’s entry through the living room screen door.” (Ibid.) “On 

this record, [the court could not] say that the prosecutor acted 

improperly in presenting her theory of premeditation and 

deliberation by arguing that defendant, from the street, watched 

the victim through open curtains in her living room and waited 

for an opportune time to enter the residence to commit a planned 

sexual attack and murder. [Citation.] The argument was neither 

deceptive nor reprehensible. [Citation.]” (Ibid.)

We similarly conclude the prosecutor acted within the wide 

latitude permitted to her in presenting her theory concerning the 

defendants’ motive. As in Farnam, the prosecutor relied on 

evidence in the record to support the inference that the attack on 

Kyle took place in connection with a robbery, including the 

testimony of Tart and Morgan, which supported that the 

defendants had drug-related business with the victim and drugs 

were present.

Even if we determined that the prosecutor’s statements 

constituted misconduct, Harrison has failed to establish the 

existence of any prejudice. Shortly before the prosecutor began 

her closing argument, the court instructed the jury that the 

arguments made by counsel are not evidence. “We presume jurors 
54

‘generally understand and follow instructions.’ [Citation.]” 

(People v. Myles (2012) 53 Cal.4th 1181, 1212.) We have no reason 

to believe that the jury would have been persuaded by the 

prosecutor’s theory even if it concluded the theory had no basis in 

the evidence presented at trial. 

3.2. Prosecutor’s Purported Misstatement of the Law 

Concerning Premeditationand Deliberation

Harrison further contends that the prosecutor’s analogy of 

premeditation and deliberation to the decision to go through a 

stop sign was prejudicial error, and that the prosecutor’s 

argument improperly conflated intent with deliberation and 

premeditation. We perceive no error. 

3.2.1. Additional Background

As discussed above, the jury was instructed to follow the 

law given to it by the court, even if the comments of the attorneys 

conflicted with the court’s instruction. 

With respect to first degree murder, the jury was instructed 

with CALCRIM No. 521, which states in relevant part: “The 

defendant is guilty of first degree murder if the People have 

proved that he acted willfully, deliberately, and with 

premeditation. The defendant acted willfully if he intended to 

kill. The defendant acted deliberately if he carefully weighed the 

considerations for and against his choice and, knowing the 

consequences, decided to kill. The defendant acted with 

premeditation if he decided to kill before completing the acts that 

caused death. [¶] The length of time the person spends 

considering whether to kill does not alone determine whether the 

killing is deliberate and premeditated . . . . A decision to kill 

made rashly, impulsively, or without careful consideration is not 
55

deliberate and premeditated. On the other hand, a cold, 

calculated decision to kill can be reached quickly. The test is the 

extent of the reflection, not the length of time.” 

During closing argument, the prosecutor analogized 

premeditation to the decision-making process one makes when 

coming to a stop sign: “And so the example I use to explain 

[premeditation] is coming to a stop sign. We come to a stop, and 

we stop. When we stop, we weigh all the consequences of whether 

or not we should move forward. We look left. We look right. We 

look for pedestrians. We look for oncoming cars. We’re 

deliberating. Should we move forward. Once we’ve weighed all 

those consequences and deliberated that it’s safe because there 

are no pedestrians, there are no cars, we then choose to move 

forward by actually putting our foot on the gas. So now we’ve 

premeditated. We’ve decided to move forward before taking the 

action to actually move forward.”

The prosecutor further explained: “Now, the decision to kill 

an individual while similar is not the same as obviously coming 

to a stop sign because you’re killing a human being. That has dire 

consequences. So I’m not saying it’s identical. What I’m saying is 

we actually deliberate, premeditate decisions in our everyday life 

all the time. The law doesn’t say you have to have thought about 

it for a day, two days, 15 days or ten seconds. What the law is 

saying is a cold, calculated decision can be reached quickly.” The 

prosecutor explained that premeditation is covered in CALCRIM 

No. 521, which they would have a chance to review while 

deliberating. 

While discussing the requirements of first degree murder in 

the context of the evidence, the prosecutor argued: “Defendant 

Harrison didn’t just stab [the victim] once, not twice, not three 
56

times, not four times, not five, not six. I could go on. But fifteen 

times. You think he didn’t know what he was doing? You think 

you take that knife you stab into a human being in vital areas 

puncturing their lungs that you’re not killing them? Not a 

warning shot in the air. Not a warning shot in his leg. Directly 

into his back, puncturing his lung.” Defense counsel did not object 

to these arguments.

3.2.2. Analysis

Harrison argues that Boatman, supra, 221 Cal.App.4th 

1253 demonstrates that the prosecutor misstated the law when 

she relied on a stop sign analogy to illustrate the concepts of 

premeditation and deliberation. As discussed above, the 

defendant in Boatman killed his girlfriend by shooting her a 

single time in the face. (Id. at p. 1258.) The court in Boatman 

rejected the contention that premeditation and deliberation were 

established because the evidence supported an inference that the 

defendant “took the time to pull back the hammer, point the 

pistol at [the victim’s] face, and fire the weapon.” (Id. at p. 1273.) 

The court noted that “cocking, aiming, and firing a revolver 

essentially describes the act of shooting with a revolver. If these 

actions could, without more, constitute premeditation and 

deliberation, we would effectively add killing perpetrated by a 

revolver to the list of crimes specifically enumerated in section 

189 and thereby substantially broaden the scope of first degree 

murder and eliminate the purposeful division created by the 

Legislature.” (Id. at p. 1274, fn. 4.)

Harrison argues that Boatman supports that the physical 

act of firing a gun is insufficient to establish premeditation and 

that the decision to go through a stop sign is a comparably 

instinctual action. Harrison contends that, “[a]s jurors who were 
57

not subject to the prosecutor’s improper arguments would likely 

recognize from their own personal experience, stopping at, 

pausing, or rolling through a stop sign does not require ‘careful 

consideration and examination’ or ‘engaging in reflection’ about 

possible dire consequences.” We disagree. Although the 

prosecutor used “we” in her explanation, she did not suggest that 

everyone who has ever stopped at a stop sign and decided to pass 

through has done so in a premeditated and deliberate manner. 

Rather, the prosecutor described various assessments that a 

driver may make at a stop sign and argued that a driver who 

runs through this mental checklist and decides to move forward 

has premeditated that decision and acted deliberately. The

prosecutor did not argue that a person who does not pause to 

consider any of the risks and instead blindly or instinctively rolls 

through the stop sign has acted in a premeditated manner. Thus, 

the stop sign analogy illustrated how a premeditated and 

deliberate decision to kill could happen quickly, but that 

premeditation and deliberation nevertheless require at least 

some degree of weighing the consequences. This analogy 

accurately reflects the law in that a defendant can quickly make 

a deliberate, premeditated decision to kill. (People v. Solomon 

(2010) 49 Cal.4th 792, 812 [“ ‘ “Premeditation and deliberation 

can occur in a brief interval” ’ ”].)

The prosecutor’s stop sign analogy is comparable to yellow 

light analogies that have consistently been found proper. (See 

People v. Avila (2009) 46 Cal.4th 680, 715; People v. Son (2020) 56

Cal.App.5th 689, 698–700; People v. Azcona, supra, 58 

Cal.App.5th at pp. 516–517.) For example, in Avila, the Supreme 

Court rejected the defendant’s contention that the prosecutor had 

argued “that ‘the “cold, calculated” judgment of murder is the 
58

equivalent of deciding whether to stop at a yellow light or proceed 

through the intersection.’ Rather, the prosecutor used the 

example of assessing one’s distance from a traffic light, and the 

location of surrounding vehicles, when it appears the light will 

soon turn yellow and then red, and then determining based on 

this information whether to proceed through the intersection 

when the light does turn yellow, as an example of a ‘quick 

judgment’ that is nonetheless ‘cold’ and ‘calculated.’ He then 

immediately said, ‘Deciding to and moving forward with the 

decision to kill is similar, but I’m not going to say in any way it’s 

the same. There’s great dire consequences that have a difference 

here.’ ” The court therefore concluded that the prosecutor had not 

engaged in any misconduct. (Avila, at p. 715.)

Harrison concedes that, as in Avila, the prosecutor made 

clear that she was not suggesting that deciding to pass through a 

stop sign and the decision to kill are of similar weight, but 

instead that both can involve cold and calculated decision making 

achieved in a short amount of time. He nevertheless argues that 

the prosecutor improperly suggested “that [the jury] could decide 

the issue of premeditation and deliberation by comparing that 

process to their own everyday decision-making, including their 

thought process at a stop sign.” We see nothing improper about 

this. Avila supports that a prosecutor may analogize to everyday 

decision-making to help the jury understand the concept of 

premeditation, so long as she does not misrepresent the law while 

doing so. 

Citing Centeno, supra, 60 Cal.4th at page 671, Harrison 

argues that “[c]ounsel trying to clarify the jury’s task by relating 

it to a more common experience must not imply that the task is 

less rigorous than the law requires.” Although we do not dispute 
59

this general proposition, Centeno does not assist Harrison. In 

Centeno, the prosecutor attempted to illustrate the People’s 

burden of proof by showing the jury an outline of the state of 

California and posited a hypothetical criminal trial in which the 

issue was, “ ‘[W]hat state is this[?]’ ” (Id. at p. 665.) The 

prosecutor described the testimony of hypothetical witnesses who 

imparted some accurate information but also some incomplete or 

inaccurate information about the state. (Ibid.) She then argued 

that regardless of the incomplete, inaccurate, or missing 

information, the jury could “ ‘still reach a decision beyond a 

reasonable doubt’ ”that the state was California. (Ibid.) The court 

reasoned that the “use of an iconic image like the shape of 

California . . . [was] a flawed way to demonstrate the process of 

proving guilt beyond a reasonable doubt.” (Id. at p. 669.) The 

image and the hypothetical drew on the jurors’ preexisting 

knowledge rather than on the evidence, trivialized the 

deliberative process, encouraged the jurors to guess or to jump to 

a conclusion, and thus misstated the burden of proof. (Id. at 

pp. 669–671.) Harrison has failed to demonstrate that the stop 

sign metaphor suggests that it was a foregone conclusion that 

Harrison’s killing of Kyle was willful, deliberate, and 

premeditated. 

Turning to Harrison’s second contention, we do not agree 

that the prosecutor improperly conflated the issues of 

premeditation and intent. First, it is not clear that the prosecutor 

was speaking to the issue of premeditation during the portion of 

argument Harrison argues was improper. Even if she was, her 

argument that the fact that the victim was stabbed 15 times 

supports a finding of premeditation was not inconsistent with the 

law. As discussed above, evidence that a defendant has inflicted 
60

multiple fatal wounds on the victim can support a finding of 

premeditation. (See, e.g., Morales, supra, 10 Cal.5th at p. 102; 

People v. Pride, supra, 3 Cal.4th at p. 247; People v. Alcala, supra, 

36 Cal.3d at p. 627.) Although Harrison is correct that an 

intentional act need not be premeditated, the situation here is 

not comparable to Boatman, on which he once again relies. The

defendant in Boatman shot his girlfriend a single time. Here, the

victim was stabbed 16 times and four of the wounds, including 

two inflicted to the victim’s back, were fatal. Considering the 

vastly different facts, we do not find Boatman instructive as to 

whether the prosecutor could fairly argue that the circumstances 

of the stabbing were indicative not only of intent, but of 

premeditation. (See People v. Williams (2018) 23 Cal.App.5th 

396, 411 [Boatman was “not at all similar” to case where “victim 

was stabbed twice in the neck, had a defensive cut on her thumb, 

and had recent blunt force injuries”].)

Even if we assumed error with respect to either contention, 

Harrison has failed to show prejudice. He has not demonstrated

there is a reasonable probability that the result of the proceeding 

would have been more favorable to him but for counsel’s failure to 

object to these portions of the prosecutor’s closing argument. The 

court correctly instructed the jury on the concept of 

premeditation and deliberation and told the jury that they must 

follow the law as the trial court explained it to them. We presume 

the jury followed the law as instructed. (Centeno, supra, 60 

Cal.4th at p. 676.)
61

3.3. Prosecutor’s Purported Misstatement of the 

“Beyond a Reasonable Doubt” Standard

Finally, Harrison contends that the prosecutor 

misrepresented her burden of proof during closing argument. We 

conclude that any error was harmless. 

3.3.1. Additional Background

With respect to proof beyond a reasonable doubt, the court 

instructed the jury with CALCRIM No. 220. In relevant part, 

CALCRIM No. 220 provides: “A defendant in a criminal case is 

presumed to be innocent. This presumption requires that the 

People prove a defendant guilty beyond a reasonable doubt. 

Whenever I tell you the People must prove something, I mean 

they must prove it beyond a reasonable doubt. [¶] Proof beyond a 

reasonable doubt is proof that leaves you with an abiding 

conviction that the charge is true. The evidence need not 

eliminate all possible doubt because everything in life is open to 

some possible or imaginary doubt. [¶] In deciding whether the 

People have proved their case beyond a reasonable doubt, you 

must impartially compare and consider all the evidence that was 

received throughout the entire trial. Unless the evidence proves 

the defendants guilty beyond a reasonable doubt, they are 

entitled to an acquittal and you must find them not guilty.” As we 

have discussed, the court further instructed the jury that it must 

follow the law as the court explained it and, if the attorneys’ 

comments on the law were in conflict with the court’s 

instructions, it must follow the court’s instructions. 

Counsel for Morgan addressed the prosecution’s burden 

and proof beyond a reasonable doubt at length in his closing 

argument, including by rereading portions of CALCRIM No. 220. 
62

During her rebuttal argument, the prosecutor stated: “Do 

you have a reasonable doubt as to what happened? Find the 

defendants not guilty. But you always have to ask yourselves, 

what’s reasonable. Just because you hear two stories, two, 

different stories, that doesn’t automatically equal reasonable 

doubt. You still determine which one you believe to be

reasonable.” 

3.3.2. Analysis 

“Section 1096, codifying the standard of proof, expressly 

provides that a ‘reasonable’ doubt is not a mere ‘ “possible” ’ or 

‘ “imaginary” ’ doubt.” (Centeno, supra, 60 Cal.4th at p. 672.) The 

Supreme Court has therefore approved a “prosecutor’s argument 

that the jury must ‘ “decide what is reasonable to believe versus 

unreasonable to believe” and to “accept the reasonable and reject 

the unreasonable.” ’ [Citation.]” (Ibid.) “ ‘The prosecution must 

prove the case beyond a reasonable doubt, not beyond an 

unreasonable doubt.’ [Citation.]” (Ibid.) “Conversely, it is error for 

the prosecutor to suggest that a ‘reasonable’ account of the 

evidence satisfies the prosecutor’s burden of proof.” (Ibid.) 

The first four sentences of the portion of the prosecutor’s 

closing argument cited by Harrison are unobjectionable. They 

constitute a permissible statement that a jury may reject 

unreasonable explanations for the defendants’ conduct and need 

not conclude that any unreasonable story offered by a defendant 

is sufficient to create a reasonable doubt. However, we agree that 

the final sentence could suggest to the jury that prosecutor met 

her burden if she offered a reasonable explanation for what 

happened, or at least the more reasonable explanation.

In evaluating the degree of prejudice arising from a 

prosecutor’s misstatements of the law, courts may consider
63

whether the misstatements were fleeting or pervasive, whether 

the evidence of the defendant’s guilt on the issue affected by the 

misstatement was close or overwhelming, and whether other jury 

instructions obviated the effect of the error. (See People v. Fayed

(2020) 9 Cal.5th 147, 205; People v. Cortez, supra, 63 Cal.4th 101, 

133–134; People v. Otero (2012) 210 Cal.App.4th 865, 873; People 

v. Bryden (1998) 63 Cal.App.4th 159, 182.)

We conclude that each of these considerations supports

that any error was harmless. The misstatement was not a 

running theme of the prosecutor’s argument but was fleeting. The 

court properly instructed the jury on the standard of proof beyond 

a reasonable doubt and counsel for Morgan also discussed the 

standard at length during his argument. The court also 

instructed the jury that it must follow the court’s instructions if 

any of the attorneys’ comments conflicted with the jury 

instructions given. The court reiterated that the jury must follow 

its instructions during the prosecutor’s closing argument and the 

prosecutor stated that the jurors would have access to the law 

and that they did not have to accept the law as she explained it. 

Unlike Centeno, on which Harrison relies, this was not a 

very close case that depended on the testimony of a single 

witness. In Centeno, the prosecutor repeatedly asked the jury if it 

was more reasonable to believe the defendant or the victim as to 

various aspects of the case, and urged the jury to conclude the 

defendant was “good for” the charged crimes because “that is 

what is reasonable.” (Centeno, supra, 60 Cal.4th at pp. 671–672.)

The prosecutor also used a visual aid and hypothetical which, 

together, encouraged the jurors to guess or to jump to a 

conclusion, and thus misstated the burden of proof. (Id. at 

pp. 669–671.) Further, Centeno was a “a very close case” 
64

concerning an alleged molestation. (Id. at p. 677.) “The 

prosecution depended almost entirely on Jane Doe’s credibility, 

which was called into question in several respects,” including 

because her trial testimony was inconsistent with her forensic 

interview testimony and she did not answer any of defense 

counsel’s questions about the alleged touching. (Ibid.)

The case against Harrison was strong. When Harrison was 

arrested, he had a bloody knife in his pocket that had DNA 

matching Kyle’s, and samples taken from blood stains on his 

shoes also matched Kyle’s DNA. Moreover, Morgan initially told 

detectives that he saw Harrison fighting with Kyle. The defense 

theory that a fifth man was present was not supported by any 

evidence other than the defendants’ testimony. Thus, it is not 

reasonably probable that a result more favorable to Harrison 

would have been reached absent the prosecutor’s misstatement of

the law.

4. Cumulative Prejudice

Morgan and Harrison contend that the cumulative effect of 

the errors they have raised undermined the fundamental fairness 

of the trial and that reversal is therefore required. We disagree. 

Defendants have “ ‘ “demonstrated few errors, and we have found 

each error or possible error to be harmless when considered 

separately. Considering them together, we likewise conclude that 

their cumulative effect does not warrant reversal of the 

judgment.” [Citation].’ ” (People v. DeHoyos (2013) 57 Cal.4th 79, 

155.)

5. Morgan’s Claims of Instructional Error

Morgan further contends that the court prejudicially erred 

in failing to instruct the jury on voluntary manslaughter based 
65

on heat of passion and that provocation can negate premeditation 

and deliberation. We conclude that the court did not err in either 

respect.

5.1. Standard of Review

“ ‘We review a claim of instructional error de novo.’ 

[Citation.] A trial court ‘is obligated to instruct the jury on all 

general principles of law relevant to the issues raised by the 

evidence, whether or not the defendant makes a formal request.’ 

[Citation.]” (People v. Parker (2022) 13 Cal.5th 1, 66.)

5.2. The court did not err in not instructing the jury 

on voluntary manslaughter based on heat of 

passion.

5.2.1. Additional Background 

The court instructed the jury on second degree murder, 

first degree premeditated murder and, as to Morgan, self-defense 

and imperfect self-defense voluntary manslaughter. The

instruction for first degree murder made clear that, if the People 

had failed to prove beyond a reasonable doubt that the killing 

was committed willfully, deliberately, and with premeditation, 

they must find the defendant not guilty and conclude that the 

murder is second degree murder. Similarly, the jury was

instructed that the People have the burden of proving beyond a 

reasonable doubt that the killing was not justified and that the 

defendant was not acting in imperfect self-defense. If the People 

failed to meet that burden, the jury was instructed to find 

defendant not guilty of murder. 
66

5.2.2. Analysis

“The trial court has a duty to instruct the jury sua sponte 

on all lesser included offenses if there is substantial evidence 

from which a jury can reasonably conclude the defendant 

committed the lesser, uncharged offense, but not the greater.” 

(People v. Brothers (2015) 236 Cal.App.4th 24, 29.)

“ ‘ “Manslaughter, an unlawful killing without malice, is a 

lesser included offense of murder.” [Citations.] “Although [Penal 

Code] section 192, subdivision (a), refers to ‘sudden quarrel or 

heat of passion,’ the factor which distinguishes the ‘heat of 

passion’ form of voluntary manslaughter from murder is 

provocation.” ’ [Citation.] ‘To be adequate, the provocation must 

be one that would cause an emotion so intense that an ordinary 

person would simply react, without reflection . . . . [T]he anger or 

other passion must be so strong that the defendant’s reaction 

bypassed his thought process to such an extent that judgment 

could not and did not intervene.’ [Citation.] ‘ “ ‘[I]f sufficient time 

has elapsed for the passions of an ordinarily reasonable person to 

cool, the killing is murder, not manslaughter.’ ” ’ [Citation.]” 

(People v. Rangel (2016) 62 Cal.4th 1192, 1225; cf. People v. Lee

(1999) 20 Cal.4th 47, 59 [“provocative conduct by the victim may 

be physical or verbal, but . . . must be sufficiently provocative 

that it would cause an ordinary person of average disposition to 

act rashly or without due deliberation and reflection”].) Because 

“[t]he test of adequate provocation is an objective one,” the fact 

that a defendant was intoxicated and thus may have been prone 

to emotional instability or lacked critical judgment is not 

relevant; rather, “[t]he provocation must be such that an average, 

sober person would be so inflamed that he or she would lose 

reason and judgment.” (Lee, at pp. 59–60, italics added.) Further, 
67

“[p]redictable and reasonable conduct by a victim resisting 

felonious assault is not sufficient provocation to merit an 

instruction on voluntary manslaughter. [Citations.]” (People v. 

Enraca (2012) 53 Cal.4th 735, 760.)

We will assume for the sake of argument that Morgan’s 

testimony that “[i]nstinct kicked in” and he acted according to a 

“[f]ight or flight” response constitutes substantial evidence that 

Morgan was so overcome by fear that his “ ‘reaction bypassed his 

thought process to such an extent that judgment could not and 

did not intervene.’ [Citation.]” (People v. Rangel, supra, 62 

Cal.4th at p. 1225.) However, we doubt whether the average 

person would be so overcome by the sight of an unarmed and 

mortally wounded man as to lose reason and judgment and shoot 

instinctively. We also consider Kyle’s conduct and demeanor at 

the time he was shot to be “[p]redictable and reasonable conduct 

by a victim resisting felonious assault,” and thus insufficient 

provocation to merit an instruction on voluntary manslaughter. 

(People v. Enraca, supra, 53 Cal.4th at p. 760.) Nevertheless, we 

will further assume for the sake of argument that there was 

substantial evidence to support that the objective requirement

was also satisfied. 

Morgan argues that we must apply the federal 

constitutional standard for assessing prejudice, which requires 

reversal unless it appears beyond a reasonable doubt that an 

error did not contribute to the verdict, applies to this claim. 

(Chapman v. California, supra, 386 U.S. at p. 24.) The Attorney 

General argues that any error was harmless under either the 

federal standard or the state constitutional standard, which 

requires reversal only if there is a reasonable probability that the 
68

error contributed to the verdict. We agree that any error was 

harmless even under the more stringent Chapman standard.

“[I]n some circumstances it is possible to determine that 

although an instruction on a lesser included offense was 

erroneously omitted, the factual question posed by the omitted 

instruction was necessarily resolved adversely to the defendant 

under other, properly given instructions. In such cases the issue 

should not be deemed to have been removed from the jury’s 

consideration since it has been resolved in another context, and 

there can be no prejudice to the defendant since the evidence that 

would support a finding that only the lesser offense was 

committed has been rejected by the jury.” (People v. Sedeno

(1974) 10 Cal.3d 703, 721, abrogated on other grounds in People 

v. Breverman (1998) 19 Cal.4th 142.) In other words, “[e]rror in 

failing to instruct the jury on a lesser included offense is 

harmless when the jury necessarily decides the factual questions 

posed by the omitted instructions adversely to [the] defendant 

under other properly given instructions.” (People v. Lewis (2001) 

25 Cal.4th 610, 646.)

The jury here found Morgan guilty of first degree murder. 

“By finding defendant was guilty of first degree murder, the jury 

necessarily found defendant premeditated and deliberated the 

killing. This state of mind, involving planning and deliberate 

action, is manifestly inconsistent with having acted under the 

heat of passion—even if that state of mind was achieved after a 

considerable period of provocatory conduct—and clearly 

demonstrates that defendant was not prejudiced by the failure to 

give his requested instruction.” (People v. Wharton (1991) 53 

Cal.3d 522, 572; People v. Peau (2015) 236 Cal.App.4th 823, 832 

[“failure to give a heat-of-passion instruction here was harmless 
69

beyond a reasonable doubt because the jury found that 

[defendant’s] murder was willful, deliberate, and premeditated”].)

People v. Manriquez (2005) 37 Cal.4th 547 is also 

instructive. The defendant in that case contended that the trial 

court’s refusal to instruct the jury on voluntary manslaughter 

constituted reversible error. (Id. at p. 583.) The court concluded 

that the record supported that the outcome would have been the 

same even if the instruction had been given. (Id. at p. 586.) The 

court gave “pattern instructions informing the jurors that if they 

harbored a reasonable doubt as to whether defendant committed 

first degree or second degree murder, or harbored a reasonable 

doubt as to whether the killing was murder or manslaughter, 

they must give defendant the benefit of the doubt and return a 

verdict of guilty of the lesser offense.” (Ibid.) The court therefore

“conclude[d] the jury would have returned the same verdict of 

first degree murder . . . even if the voluntary manslaughter 

instruction refused by the trial court had been given.” (Ibid.)

“Accordingly, even if [the court] were to assume for the sake of 

discussion that the trial court erred in refusing the instruction 

requested by defendant, any error clearly would have been 

harmless. [Citation.]” (Ibid.)

Similarly, the court here instructed the jury that it must 

find that murder was second degree murder if it had any 

reasonable doubt as to whether the murder was willful, 

deliberate, and premeditated. If the jury had any reasonable 

doubt as to whether the killing was justified or whether Morgan 

was acting in imperfect self-defense, it was required to find that 

he had not committed murder. Because the jury returned a first 

degree murder verdict for both defendants, we conclude that the 
70

jury did not harbor any reasonable doubt as to whether the 

defendants acted coldly and deliberately.

We reject Morgan’s contention that People v. Wharton, 

supra, 53 Cal.3d 522 and People v. Peau, supra, 236 Cal.App.4th 

823 do not assist the Attorney General because other instructions 

were given in those cases relating to the issue of heat of passion. 

It was clear from the court’s instructions here that the jury 

should not find Morgan guilty of first degree murder if it had any 

reasonable doubt as to whether he had acted “rashly, impulsively, 

or without careful consideration,” as one overcome with fear or 

emotion would. We also find Morgan’s reliance on People v. 

Millbrook (2014) 222 Cal.App.4th 1122 and People v. Dominguez

(2021) 66 Cal.App.5th 163 unavailing. In Millbrook, the jury did 

not find that the attempted murder was willful, premeditated, 

and deliberate, which “would have been ‘manifestly inconsistent 

with having acted under the heat of passion.’ [Citation.]” 

(Millbrook, at p. 1138.) In the absence of such a finding, the court 

“observe[d] that there is nothing in the jury’s verdict that is 

inconsistent with the need for a heat-of-passion instruction.” 

(Ibid.) In Dominguez, the jury “acquitted Defendants on first 

degree premeditated murder and found ‘not true’ that the 

attempted murders were ‘willful, deliberate and premeditated,’ ” 

and thus “rejected the People’s theory of a planned ambush, and 

seemingly accepted that Defendants were provoked in some 

degree or manner.” (Dominguez, at p. 184.)

Morgan cites People v. Sedeno, supra, 10 Cal.3d 703, for the 

proposition that substantial evidence does not support the jury’s 

finding of guilt as to the issue resolved against him. Sedeno does 

not support his claim. The court in Sedeno concluded that there 

was substantial evidence to support that the killing in that case 
71

was deliberate. (Id. at p. 711.) When addressing the court’s 

failure to instruct on involuntary manslaughter, the court 

observed that “the jury necessarily rejected defendant’s evidence 

that his diminished capacity negated intent to kill when it found 

the shooting to be first degree rather than second degree murder” 

and that “the failure to give an instruction on involuntary 

manslaughter could not have been prejudicial to defendant since 

the offense could have been no less than voluntary 

manslaughter.” (Id. at p. 721.) However, because the trial court’s 

instructions had implied that, if the jury found that the death 

occurred during the commission of an escape, they must conclude 

that the crime was at least second degree murder, the jury did 

not necessarily make a finding of malice. (Id. at p. 722.) The 

Supreme Court reversed on this ground. (Id. at p. 724.) Morgan 

identifies no comparable confusion in the instructions given by 

the trial court here.

In sum, we conclude that any error was harmless beyond a 

reasonable doubt because “[w]e cannot see how a determination 

that [Morgan] carefully weighed his choice to act and did not 

decide rashly or impulsively can coexist with the heat of passion, 

which ‘arises when “at the time of the killing, the reason of the 

accused was obscured or disturbed by passion to such an extent 

as would cause the ordinarily reasonable person of average 

disposition to act rashly and without deliberation and reflection, 

and from such passion rather than from judgment.” ’ [Citation.]” 

(People v. Franklin (2018) 21 Cal.App.5th 881, 894.)
72

5.3. The court did not err in failing to sua sponte 

instruct the jury with CALCRIM No. 522 and 

Morgan was not prejudiced by the fact it was not 

given.

Morgan argues that the court erred in not instructing the 

jury with CALCRIM No. 522, which provides: “Provocation may 

reduce a murder from first degree to second degree [and may 

reduce a murder to manslaughter]. The weight and significance 

of the provocation, if any, are for you to decide. [¶] If you conclude 

that the defendant committed murder but was provoked, consider 

the provocation in deciding whether the crime was first or second 

degree murder. [Also, consider the provocation in deciding 

whether the defendant committed murder or manslaughter.] [¶] 

[Provocation does not apply to a prosecution under a theory of 

felony murder.]” We hold that there was no error.

“Provocation may indeed reduce murder from first to 

second degree. [Citation.] But an instruction that provocation 

may be sufficient to raise reasonable doubt about premeditation 

or deliberation, such as CALJIC No. 8.73 or CALCRIM No. 522, 

is a pinpoint instruction to which a defendant is entitled only 

upon request where evidence supports the theory. [Citation.] The 

trial court is not required to give such an instruction sua sponte. 

[Citation.] In this case, [the defendant] did not make a request for 

an instruction on provocation. The trial court did not err by 

failing to so instruct the jury.” (People v. Rivera (2019) 7 Cal.5th 

306, 328–329; cf. People v. Rogers (2006) 39 Cal.4th 826, 878 

(Rogers) [CALJIC No. 8.73, analogue to CALCRIM No. 522, is a 

pinpoint instruction and need not be given on court’s own 

motion].) 
73

Neither People v. Thomas (1945) 25 Cal.2d 880 nor People 

v. Valentine (1946) 28 Cal.2d 121, on which Morgan relies, are 

instructive here. In both cases, multiple erroneous instructions 

were given: “(1) The jury were told that the existence of a specific 

intent to kill (which, of course, exists in voluntary manslaughter 

and in second degree murder as well as in some types of first 

degree murder) constitutes a homicide murder of the first degree; 

(2) the effect of provocation and passion as reducing the class of a 

homicide from murder to manslaughter was emphasized and the 

effect of provocation and passion as possibly precluding or 

making doubtful the formation of a deliberate and premeditated 

intent to kill was ignored; and (3) the jury were told, in effect, 

that the burden of proving circumstances which would mitigate 

the offense from murder of the first to murder of the second 

degree was upon the defendant.” (Valentine, at pp. 130–131, 

citing Thomas; see also Rogers, supra, 39 Cal.4th at pp. 879–880 

[conclusion that CALJIC No. 8.73 is a pinpoint instruction is not 

inconsistent with Valentine, where the court “reversed based on a 

host of instructional errors”].) 

Morgan does not contend that any comparable errors are 

present in this case. “In the absence of instructional errors such 

as were present in Valentine, the standard manslaughter 

instruction is not misleading, because the jury is told that 

premeditation and deliberation is the factor distinguishing first 

and second degree murder. Further, the manslaughter 

instruction does not preclude the defense from arguing that 

provocation played a role in preventing the defendant from 

premeditating and deliberating; nor does it preclude the jury 

from giving weight to any evidence of provocation in determining 

whether premeditation existed.” (Rogers, supra, 39 Cal.4th at 
74

p. 880.) Thus, we hold that there was no error in failing to 

instruct the jury with CALCRIM No. 522.

Morgan argues that, if the court did not commit error in 

failing to instruct the jury with CALCRIM No. 522, he received 

ineffective assistance of counsel because his attorney did not 

request the instruction. To resolve the ineffective assistance of 

counsel claim, we need not determine whether his counsel’s 

performance was deficient. “ ‘If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient 

prejudice, . . . that course should be followed.’ [Citation.]” (People 

v. Jacobs (2013) 220 Cal.App.4th 67, 75.) We find no prejudice.

The jury was correctly instructed that Morgan could not be 

guilty of first degree murder unless he deliberated and 

premeditated. CALCRIM No. 522 is “relevant only to the extent it 

‘bears on the question’ whether defendant premeditated and 

deliberated” and thus merely elaborates on how the first degree 

murder instructions apply to the evidence. (Rogers, supra, 39 

Cal.4th at pp. 878–879.) By finding Morgan guilty of first degree 

murder, the jury necessarily rejected that any provocation by 

Kyle negated deliberation and premeditation. The requisite 

showing of prejudice is lacking since the record shows no 

reasonable probability that, even if his attorney had requested 

CALCRIM No. 522, the result of the proceeding would have been 

more favorable to Morgan. 

6. Morgan’s Claim of Error under Section 654

Section 654 “prohibits multiple punishments for a single 

act or course of conduct. [Citation.] Whether an offense is an 

indivisible course of conduct is a fact question. We uphold the 

trial court’s ruling when substantial evidence supports it. 
75

[Citations.] This standard of review is exceedingly deferential. 

[Citation.]” (People v. Venegas (2020) 44 Cal.App.5th 32, 38.)

Morgan contends that the acts underlying counts 2 and 3, 

possession of firearm by felon (§ 29800, subd. (a)(1)), and 

unlawful possession of ammunition (§ 30305, subd. (a)(1)), took 

place during the same course of conduct as Morgan’s murder of 

Kyle, and that the court violated section 654 by imposing 

sentences for counts 2 and 3. He further argues that, under 

Assembly Bill No. 518, he was no longer required to be punished

under the provision that provided for the longest possible term

(i.e., murder under § 187, subd. (a); count 1) but could be 

punished under the shorter terms for possession of firearm by 

felon or unlawful possession of ammunition, and that we should 

therefore remand for resentencing.

We conclude that there is substantial evidence that Morgan 

purposefully took possession of the pistol before the murder took 

place and that the court did not err in failing to stay the sentence 

for count 2. However, we accept the Attorney General’s 

concession that the sentence for count 3 should have been stayed 

because it was part of the same course of action as count 2. We 

conclude that a remand for resentencing is not required.

6.1. Failure to Stay Punishment for Possession of 

Firearm by Felon (Count 2)

“With respect to additional punishment for possessing a 

gun, the conduct is divisible, and additional punishment 

therefore proper, so long as [the defendant] purposefully 

possessed the gun before the murder took place. [Citation.]” 

(People v. Venegas, supra, 44 Cal.App.5th at p. 38; see, e.g., 

People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378–1379 

[defendant who arrived at the scene of a kidnapping already in 
76

possession of firearm was properly subject to separate 

punishments]; People v. Jones (2002) 103 Cal.App.4th 1139

(Jones), 1147–1148 [defendant who drove to ex-girlfriend’s home 

in possession of gun and then shot into the home 15 minutes later 

was properly subject to separate punishments].)

However, “multiple punishment is improper where the 

evidence ‘demonstrates at most that fortuitous circumstances put 

the firearm in the defendant’s hand only at the instant of 

committing another offense . . . .’ [Citation.]” (Jones, supra, 103 

Cal.App.4th at p. 1144.) For example, where a defendant wrested

a gun away from a highway officer and shot at the officer, our

Supreme Court found punishment for both assault with a deadly 

weapon upon a peace officer and possession of a firearm by an exfelon was prohibited by section 654. (People v. Bradford (1976) 17 

Cal.3d 8, 13, 22–23.) Similarly, in a case where the defendant 

shot a companion at a bar and the evidence suggested that the 

defendant obtained the gun during a struggle at the bar moments 

before the shooting, section 654 barred punishment for possession

of a firearm by an ex-felon in addition to punishment for assault 

with a deadly weapon because “the possession [was] physically 

simultaneous” and “was incidental to only one objective, namely 

to shoot [the victim].” (People v. Venegas (1970) 10 Cal.App.3d

814, 818–821.)

Morgan argues that there is no evidence to support that he 

arrived at the scene armed with a gun. According to his 

testimony, he fortuitously came across the gun after Kyle placed 

it on the ottoman. However, we review the trial court’s 

determination in the light most favorable to the respondent, 

presume the existence of every fact the trial court could 

reasonably deduce from the evidence, and will not reverse if there 
77

is any substantial evidence to support the finding. (Jones, supra, 

103 Cal.App.4th at p. 1143.) Even accepting Morgan’s account of 

events, the evidence does not suggest that Morgan wrested the 

gun from Kyle and simultaneously shot him. Morgan testified 

that, while the others present were fighting, he picked up the gun

from where it was sitting on the ottoman, exited the apartment, 

and stood outside on the walkway. At that point in time, he had 

no reason to expect that Kyle, who was by all accounts the victim 

of the brutal attack, would come towards him in a threatening 

manner. Thus, a rational trier of fact could conclude that his

possession of the gun was not “physically simultaneous” and 

incidental to the objective of shooting Kyle. (People v. Venegas, 

supra, 10 Cal.App.3d at p. 821.)

Moreover, the trier of fact could reasonably discredit 

Morgan’s testimony that Kyle left a gun sitting out for the taking. 

Tart told detectives that Morgan and Harrison told him “to go to 

the front while they handle their business,” and that he later 

heard one of them say, “Shoot this motherfucker. Don’t let him 

out.” The court could reasonably infer that Harrison instructed

Morgan to shoot Kyle because he knew that Morgan had armed 

himself with a gun before coming to Kyle’s apartment.

5 Thus, 

under the deferential standard of review, we conclude multiple 

punishment for the murder and for possession of a firearm was 

proper in this case.

5 Morgan’s assertion that the only DNA located on the gun was Kyle’s 

does not rule out the possibility that Morgan brought the gun to Kyle’s 

apartment. The DNA from the gun handle was inconclusive; the DNA 

matching Kyle’s DNA came from a blood stain on the gun. That Kyle’s 

blood was on the gun is not a particularly strong indicator that he 

owned the gun, much less a conclusive one. 
78

6.2. Failure to Stay Punishment for Unlawful 

Possession of Ammunition (Count 3)

We accept the Attorney General’s concession that multiple 

punishment for possession of a firearm by a felon (count 2) and 

unlawful possession of ammunition (count 3) was not proper. 

“While there may be instances when multiple punishment 

is lawful for possession of a firearm and ammunition, the instant 

case is not one of them. Where, as here, all of the ammunition is 

loaded into the firearm, and ‘indivisible course of conduct’ is 

present and section 654 precludes multiple punishment.” (People 

v. Lopez (2004) 119 Cal.App.4th 132, 138.) There is no evidence 

that supports an inference that Morgan had different or multiple 

objectives in possessing the loaded pistol and possessing the 

ammunition. Indeed, the prosecutor argued with respect to 

possession of ammunition, “[W]e know he did because the gun 

was loaded. So if he’s possessing the gun, the ammunition is 

inside. He’s possessing that as well. He knew he had the 

ammunition. He knew the gun was loaded.” Thus, the trial court 

erred in failing to stay the sentence for either count 2 or count 3

under section 654.

6.3. Assembly Bill No. 518’s Amendment to Section 654

“At the time of sentencing, section 654, former subdivision 

(a) required that a defendant who committed an act punishable

by two or more provisions of law be punished under the provision 

that provided for the longest possible term. (Stats. 1997, ch. 410, 

§ 1.) Effective January 1, 2022, Assembly Bill 518 amended 

section 654, subdivision (a) to permit an act or omission 

punishable under two or more provisions of law to ‘be punished 

under either of such provisions.’ (§ 654, subd. (a); Stats. 2021, 
79

ch. 441, § 1.) Thus, under newly amended section 654, a trial 

court is no longer required to punish under the longest possible 

term of imprisonment when multiple offenses are based on the 

same act or omission. [Citation.] Section 654 ‘now provides the 

trial court with discretion to impose and execute the sentence of 

either term, which could result in the trial court imposing and 

executing the shorter sentence rather than the longer 

sentence.’ [Citation.]” (People v. White (2022) 86 Cal.App.5th 

1229, 1236.) As the parties here agree, “Assembly Bill 518 

‘applies retroactively to defendants . . . whose convictions were 

not yet final when the law became effective January 1, 2022.’ ” 

(Ibid., quoting People v. Sek (2022) 74 Cal.App.5th 657, 673.)

Morgan argues that counts 2 and 3 are part of the same 

course of action as count 1, and that we should on remand direct 

the trial court to exercise its newly granted discretion as to which

of the sentences to stay. Having concluded that the court’s 

implied finding that counts 2 and 3 were not part of the same 

course of conduct as count 1 was supported by substantial 

evidence, we reject this argument. Although we have concluded 

that counts 2 and 3 were part of a single act or course of conduct, 

the trial court imposed identical concurrent terms of two years to 

those counts. We may refuse to remand a case for resentencing if 

the record shows that to do so would be futile. (See People v. 

Lopez (2019) 42 Cal.App.5th 337, 342.) Thus, rather than 

remand, we will modify the judgment to stay the two-year term 

imposed on count 3.

7. Morgan’s Claim of Error as to the Firearm 

Enhancement

Section 12022.53, subdivision (h) allows a trial court to 

strike a firearm enhancement under that section “in the interest 
80

of justice pursuant to section 1385.” Morgan argues that the court 

erred in imposing a sentence of ten years for the firearm 

enhancement because he only had one prior non-violent felony 

conviction and because it had discretion not to impose the 

charged enhancement under the statute. He argues that the trial 

court may not have been aware of its sentencing discretion and 

that we should therefore remand. We are not persuaded.

7.1. Additional Background

At the sentencing hearing, counsel for Morgan argued that 

Morgan was young and did not have a lengthy criminal history, 

and therefore asked that the court exercise its discretion and not 

impose the firearm enhancement.

The court recounted the firearm allegations and the jury’s 

findings, then noted “that relatively speaking [Morgan] doesn’t 

have a prior record.” The court also observed that his girlfriend 

had previously spoken on his behalf and that “[h]is mom made 

some comments today. He made some comments, although all of 

them weren’t necessarily positive.”6 The court also “listened to 

the points that [Morgan’s] attorney has made.” 

The court then announced its sentence on the firearm 

enhancement: “[T]he court is now aware that I can exercise my 

discretion. I no longer have to choose the high term of 25 years 

pursuant to the (d) subsection. [¶] And the court is going to take 

into account all the points that have been raised by defense 

counsel and the fact that [Morgan] doesn’t really have that much 

6 Referring to Kyle’s family, Morgan stated, “I don’t care how the 

family feel. I understand they lost a loved one. But not as far as I 

caring about how they feel. But what I feel is me being—as being 

guilty is not it. I’m not guilty of it.” 
81

of a record. [¶] So I’m going to impose the 10 years consecutive 

pursuant to Penal Code section 12022.53(b). [¶] So, again, 

although the People were asking for 50 years to life as to count 1, 

the court is going to order that 10 years to be consecutive. So it’s 

going to be 35 years in state prison to life.”

7.2. Analysis

“[I]n light of the presumption on a silent record that the 

trial court is aware of the applicable law, including statutory 

discretion at sentencing, we cannot presume error where the 

record does not establish on its face that the trial court 

misunderstood the scope of that discretion.” (People v. Gutierrez

(2009) 174 Cal.App.4th 515, 527.) We find nothing in the record 

that suggests that the court was not aware that it had discretion 

under section 12022.53, subdivision (h) to strike the firearm 

enhancement. In arguing otherwise, Morgan relies on People v. 

Lua (2017) 10 Cal.App.5th 1004. The Court of Appeal in Lua 

found that the record was ambiguous as to whether the trial 

court understood the scope of its discretion to strike certain drugrelated enhancements where the trial court appeared to 

characterize 17 years as “ ‘the lowest sentence possible’ ” even 

though striking the enhancements would result in a sentence of 

less than 17 years. (Id. at pp. 1021–1022.) There is no comparable 

statement here. The court acknowledged that it had discretion

and that it was not obligated to give the highest sentence. 

Although it did not explicitly refer to its discretion to strike the 

enhancement, the court did not indicate that it was trying to give 

Morgan the lowest sentence possible, or suggest that it would 

strike the enhancement, as Morgan’s attorney requested, if it 

thought it had the discretion to do so. 
82

Thus, we reject Morgan’s contention that the court 

committed error or that we should remand to permit the court to 

exercise its discretion.

8. Morgan’s Custody Credit

The record indicates that Morgan was arrested on May 26, 

2018 and sentenced on September 16, 2021. Morgan contends 

that the court awarded 1,209 days actual presentence custody 

credit when he was entitled to 1,210 actual days custody credits. 

The Attorney General concedes that he is correct. We accept this 

concession.

7

7 Harrison was arrested and sentenced on the same dates and his 

amended abstract of judgment reflects a credit for time served of 1,210

days.
83

DISPOSITION

Appellant Dean Morgan’s judgment is modified to reflect an 

award of 1,210 days of actual presentence custody credit rather 

than 1,209 days and that his sentence on count 3 for unlawful 

possession of ammunition is stayed pursuant to section 654. The 

trial court shall issue an amended abstract of judgment for 

Morgan reflecting these modifications. With the exception of 

these modifications, the judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.