1

Filed 2/28/22 P. v. McCullough CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES ROBERT MCCULLOUGH,

Defendant and Appellant.

 A157271

 (Contra Costa County

 Super. Ct. No. 

51820091)

THE PEOPLE,

Plaintiff and Respondent,

v.

JARMON TREYVION DAVIS,

Defendant and Appellant.

 A158089

 (Contra Costa County

 Super. Ct. No. 

51820091)

ORDER MODIFYING

OPINION AND 

DENYING REHEARING 

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on January 31, 2022, be 

modified as follows: 
2

1. On pages 8–9: Delete the two paragraphs beginning with “To begin 

with” on page 8 and ending with “let alone, the Watson standard” on 

page 9, and replace with the following sentence:

“Even assuming Detective Mahan’s challenged testimony was 

problematic, we agree with the Attorney General that any error in admitting 

the testimony was harmless under either the Chapman1 or Watson2

standard.” There is no change to the footnotes in the opinion.

2. On page 13, the first sentence of the first full paragraph: Delete the 

word “Again” at the beginning of the first sentence. The sentence 

should now read as follows: “Having failed to object to the instruction 

and request that it be modified, defendants have forfeited any 

challenge to the instruction on appeal.”

There is no change in the judgment.

The petition for rehearing is denied.

Dated: ________________________________

Humes, P. J.

1 Chapman v. California (1967) 386 U.S. 18.

2 People v. Watson (1956) 46 Cal.2d 818.
1

Filed 1/31/22 P. v. McCullough CA1/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES ROBERT MCCULLOUGH,

Defendant and Appellant.

 A157271

 (Contra Costa 

County

 Super. Ct. No. 

51820091)

THE PEOPLE,

Plaintiff and Respondent,

v.

JARMON TREYVION DAVIS,

Defendant and Appellant.

 A158089

 (Contra Costa 

County

 Super. Ct. No. 

51820091)

Defendants James Robert McCullough and Jarmon Treyvion Davis 

appeal from a judgment of conviction, following a jury trial, of one count of 

robbery. (Pen. Code, § 211.)3 The jury also found true a personal use firearm 

enhancement as to Davis. 

On appeal, defendants jointly contend the trial court erred in admitting 

testimony regarding their cell phone numbers and in instructing the jury it 

3 All further statutory references are to the Penal Code unless 

otherwise indicated.
2

could consider “certainty” in determining whether a witness’s identification 

was accurate. Separately, Davis additionally contends his Sixth Amendment 

rights were violated when his attorney, during closing argument, assertedly 

conceded guilt as to robbery and his Fifth Amendment rights were violated by 

a stipulation admitting a prior juvenile adjudication. Separately, 

McCullough contends the court improperly imposed a parole revocation 

restitution fine. 

The Attorney General concedes imposition of the parole restitution fine

was improper, and we agree. In all other respects, we affirm. 

BACKGROUND4

The crime at issue occurred as the victim was walking home along a 

trail from the North Concord Bart station, around 9:30 p.m. on September 6, 

2018. The trail, which runs parallel to the highway, has three access points: 

at the Bart station; at Olivera Road; and at Hamilton Street. The victim was 

somewhere near the Hamilton Street access point and was walking south

toward Olivera Road when a man ran in front him and told him to stop. 

Until that point, the victim had not seen anyone on the trail. The man then 

signaled to two other men who approached the victim from behind. One of 

these men had a gun and touched it to the victim just above his hip but below 

his chest. The other man walked in front of the victim and began taking the 

victim’s belongings, including his gold iPhone, wallet and backpack which 

contained his laptop. 

All three men were wearing face masks, but the victim was otherwise 

able to give general descriptions of the men. The gunman was “skinny” and 

4 We summarize here only the general background facts. We discuss 

additional facts pertaining to the issues raised on appeal in the next section 

as needed. 
3

Black. The man who initially stopped him was tall and had a “larger build,” 

“broad shoulders kind of thing,” and White. The third man was “Five six 

seven. Five seven maybe,” “skinny,” and he was “Lighter than that, the other 

male, white male so.” After the White “larger build” man took the victim’s

belongings, the gunman told the victim to walk back toward the Bart station. 

After a short distance, the victim turned around and continued in the 

direction of the three men. He then ran toward a vehicle, which happened to 

be an unmarked police car, and a police officer stopped to help him. They 

both saw the three men running away. 

The officer, Concord Police Corporal Anthony Perry, had entered the 

trail from the opposite end as the victim, via the Olivera Road access point. 

He was travelling north toward the Bart station and did not encounter 

anyone until he saw three men, who appeared to be together, walking toward 

him. He took note of the men because one of them, later identified as Davis,

made a motion with his hands. The men appeared to be between the ages of 

18 and 22. He noted one was Hispanic and had a “medium build about 6-foot1, had a very short hair cut” and the other was Black with a “thin build” and 

wearing a tan jacket or hoodie. He did not note the race of the third man but 

described him as “Medium build.” Perry later identified the Black male as 

Davis. Perry “exchanged a greeting” with the men and they passed by him. 

Around 15 seconds later, the victim ran toward Perry pointing in the 

direction of Davis and his two companions. The victim, who appeared 

“distressed,” “almost shouting” told Perry, “ ‘They just robbed me, they took 

my backpack and my cell phone.’ ” When Perry turned to look, he saw the

three running, at a “full sprint” southbound in the direction of a gas station. 

Perry broadcast a description over police dispatch of a Black male, “six-foot, 

thin build, a Hispanic male, and a third subject medium build.” He also 
4

noted one suspect was “wearing a tan hoodie the other one was wearing a red 

hoodie.” He further stated all three were in their “18’s to early 20’s with 

short hair styles” and ordered a perimeter set up. After speaking with the 

victim, he also dispatched that one of the men was a White “male with a 

muscular build.” 

Just west of the gas station, a witness was sitting in a parking lot when

he saw two men, one Black and one White between the ages of “19 to about 

24 or so” running through the gas station toward his car. As the men were 

running, they “kept looking back.” The witness described the Black male as 

“about five feet” with short hair, and the White male as “a little bit taller.” 

The White male had a mask on, but it “didn’t cover the whole of his face,” and 

he “was trying to take it off.” The White male asked to use the witness’s

phone but the men kept walking. The witness also saw the White male throw 

his mask on the ground, and when the two left the area, the witness picked 

up the mask from the road. The witness then saw and flagged down an 

officer and relayed what he had just seen. 

About 40 minutes after Corporal Perry sent out the broadcast, Concord 

Police Officer Eugene Davis was assisting in setting up a perimeter when the

witness near the gas station flagged him down. The witness took Officer 

Davis back to where he had been parked when he saw the two men. The 

witness told Officer Davis “he saw the [B]lack male and a [W]hite male 

disrobing their outer garments,” and that the White male had “discarded the 

ski mask on the sidewalk next to his truck.” The witness then gave Officer

Davis the mask. Officer Davis also found a discarded dark-colored wallet, 

which he left in its location so the responding K9 officer could “conduct a . . . 

trail.” 
5

While speaking to the witness, Officer Davis was notified that two men, 

later identified as Davis and McCullough, had been detained. The witness 

agreed to do an in-field show up, and Officer Davis took him to where the 

men were detained. After admonishing the witness, the witness identified 

defendant Davis, saying “ ‘That’s him,’ ” “[w]ithout hesitation.” The witness 

was uncertain if the White male was the same man he had seen earlier, 

although he stated he had the “same build.” The witness later identified 

defendant Davis in court. 

In the meantime, Deputy Jeff Kellogg and K9 Officer Ronnie had 

initiated a “trail” after sniffing the victim’s laptop and a pistol which had 

been recovered along the Bart trail. The canine led Kellogg to the gas 

station. While at the gas station, Kellogg was notified of a new location 

where a wallet had been found. Kellogg and Ronnie “reinitiate[d]” the trail 

from the wallet and went in the direction of the Highway 242 overpass. 

“When Ronnie was trailing along . . . toward the 242 overpass,” he located a 

tan jacket. The victim’s gold iPhone was in a pocket. 

A second witness had also called police after two men ran in front of 

her car on the Highway 242 overpass,5 causing her to slam on her breaks. 

One male was White with “really short” hair. He was “shirtless, shoeless” 

and “had some tattoos.” She estimated he was “approximately 35 years old,” 

with a “bulkier than average, but more like muscl[ar]” build. She only saw 

the hands of the second person, but identified that person as Black, with dark 

skin, wearing “a hoodie and like baggy jeans,” and “skinnier than the White 

5 The Highway 242 overpass is “at most” approximately “a third of a 

mile to a half a mile” from the North Concord Bart trail, where the robbery 

took place. 
6

male.” The information provided by the witness was dispatched to officers in 

the field. 

While responding to the location in the dispatch, Officer Ameet Patel

also received a radio report from air support about “two males” standing 

“approximately 100 feet, 150 feet to the east” of the overpass. Officer Patel 

responded to that location, where he came upon defendants. It had been 

about 40 to 45 minutes since Corporal Perry first made the broadcast about 

the robbery. Both defendants were “sweating quite profusely.” And despite 

the temperature being at the “highest . . . probably low 60s,” and the time 

being approximately 10 p.m., the man later identified as McCullough did not 

have on a shirt. 

The District Attorney filed an information alleging one count of felony 

second degree robbery (§ 211) as to both defendants. The information also 

alleged two enhancements: as to Davis, that he personally used a firearm in 

commission of the robbery (§ 12022.53, subd. (b)), and as to McCullough, that 

he was armed with a firearm (§ 12022, subd. (a)(1)) during commission of the 

robbery. 

The jury found defendants guilty of robbery and found true the 

enhancements. As to McCullough, the court struck the section 12022, 

subdivision (a)(1) enhancement (for sentencing purposes) and sentenced him 

to three years in state prison. As to Davis, the court sentenced him to 12 

years in state prison, comprised of the low term of two years for the robbery 

count plus 10 years for the firearm enhancement. 
7

DISCUSSION

Combined Claims

Cell Phone Evidence

At trial, Officer Patel testified that after defendants were arrested, he

seized cell phones from both and provided them to Corporal Perry who 

booked them into evidence. 

Detective Greg Mahan testified he was “requested to perform a followup investigation” on the two phones. He first obtained a warrant, and then 

gave the phones to Detective Scott Smith who performed a “forensic 

extraction” by downloading the cell phone data for September 4-6, 2018,

which included the two days before and the day of the robbery. Detective 

Smith provided the data to Detective Mahan along with the phone numbers 

associated with both phones. 

When the prosecutor asked Detective Mahan if those phone numbers 

“correspond[ed] with [the] numbers listed for Jarmon Davis and James 

Robert McCullough in their booking information,” defense counsel objected on 

the ground of hearsay. 

The court replied, “Ladies and gentlemen, I will allow the testimony 

not for the truth of what was told, but what this witness did next as a result 

of that information that he got.” Defendants made no objection to the court’s 

nonhearsay, limited-purpose ruling. 

Detective Mahan then answered, “Yes,” and went on to testify that the 

data confirmed numerous exchanges between the two phones during the

requested date range. On the two days leading up to the robbery,there were

several calls and texts between the two phones. On the day of the robbery, 

there were six calls between the phones, over a span of an “[e]ight-or ninehour period,” and four text messages. Detective Mahan did not testify as to 
8

the content of those text messages. On the day of the robbery, the last phone 

call between the two phones occurred at around 1 pm., and the last text 

messages occurred around 4 p.m. 

On appeal, defendants contend the trial court erred in allowing 

Detective Mahan’s statement regarding the numbers in the booking 

information for any purpose. 

“An out-of-court statement is properly admitted if a nonhearsay 

purpose for admitting the statement is identified, and the nonhearsay 

purpose is relevant to an issue in dispute.” (People v. Turner (1994) 8 Cal.4th

137, 189.) However, “[a] hearsay objection to an out-of-court statement may 

not be overruled simply by identifying a nonhearsay purpose for admitting 

the statement. The trial court must also find that the nonhearsay purpose is 

relevant to an issue in dispute.” (People v. Armendariz (1984) 37 Cal.3d 573, 

585, italics added, superseded by statute on other grounds as stated in People 

v. Cottle (2006) 39 Cal.4th 246, 255; see People v. Scalzi (1981) 

126 Cal.App.3d 901, 906-907 [evidence of officer’s state of mind irrelevant 

and thus inadmissible when it does not tend to prove or disprove an issue in 

the case].) 

Here, the trial court ruled Detective Mahan’s testimony was admissible 

not for the truth of the matter, but for the nonhearsay purpose of explaining 

what the detective did next in his investigation. Defendants maintain why 

Detective Mahan did what he did next was irrelevant to any issue in the case 

and therefore the testimony should have been disallowed entirely. 

To begin with, defendants have forfeited the issue—they could have, 

and should have, objected on relevancy grounds to the trial court’s limited 

admission of the evidence. They did not. Instead, having succeeded on their 

hearsay objection and obtained a ruling excluding the testimony for its truth, 
9

they voiced no objection to its admission for a limited, nonhearsay purpose 

and remained silent as Detective Mahan testified in accordance with the 

court’s ruling. Having failed to make any relevancy objection, defendants 

forfeited their challenge to the admission of this testimony for a limited 

purpose. (See People v. Riel (2000) 22 Cal.4th 1153, 1184 [failure to object to 

evidence as irrelevant and unduly prejudicial precluded defendant from 

raising issue on appeal]; see also People v. Kipp (2001) 26 Cal.4th 1100, 1124 

[objection to evidence on one ground does not preserve challenge on a 

different ground on appeal]; Evid. Code, § 353.)

But even assuming defendants preserved the issue, and even assuming 

Detective Mahan’s challenged testimony was problematic, we agree with the 

Attorney General that defendants cannot demonstrate that prejudicial error 

in allowing the testimony for a limited purpose under even the Chapman6

standard, let alone, the Watson7 standard. 

Defendants insist the testimony regarding the phone numbers was “a 

highly significant piece of evidence in the prosecution’s case,” pointing to the 

prosecutor’s closing argument. (Capitalization omitted.) 

During closing, the prosecutor told the jury, “You can also consider the 

other links between defendant McCullough and defendant Davis. You heard 

about their cell phones. You heard that before the robbery they were 

regularly calling and texting with one another. There were a number of short 

calls the day of the robbery, a number of text messages, and on the day before 

they were regularly calling and texting each other. [¶] After the robbery, we 

know they were together, and there were no calls, no text messages, they 

don’t call each other. And that’s common sense. People don’t call and text 

6 Chapman v. California (1967) 386 U.S. 18.

7 People v. Watson (1956) 46 Cal.2d 818. 
10

each other when they’re together. [¶] During the time of the robbery, there 

were no calls and text messages, so they go from communicating regularly via 

call and text. And we know that when they’re together they don’t 

communicate via call and text. You can reasonably infer then from the lack 

of calls and text messages during the robbery that they were together.” 

In his final closing, the prosecutor stated, defendant Davis’ counsel,

“practically conceded the robbery on Mr. Davis. He didn’t talk about it at 

all. . . . [¶] And that’s a problem for James McCullough, right. Because if 

Jarmon Davis did the robbery, and Jarmon Davis and James McCullough

were texting before the robbery and then they were together after the robbery 

a mile up the road less than an hour after the robbery and they weren’t 

corresponding with each other, doesn’t really matter who else they were 

corresponding with, they weren’t corresponding with one another—that is 

why I brought the correspondence between the two phones—you can infer 

they were together.” 

Notably, the prosecutor made no mention of Detective Mahon’s 

challenged testimony. Moreover, that these two phones were seized from 

defendants and the data retrieved from the phones showed phone and text 

exchanges correlating with the events before, during, and after the robbery, 

alone, is strong evidence the phones belonged to defendants.

There was also abundant other evidence defendants committed the 

robbery. Witnesses described defendants and their clothing. Defendants 

were arrested together, near the scene of the robbery, approximately 45 

minutes after it occurred. The victim followed the three men, toward 

Corporal Perry. Both the victim and Corporal Perry saw the suspects flee 

toward the gas station. This was confirmed by the K9 officer who tracked 

defendants’ path from the trail to the gas station, and from the gas station to 
11

near where the defendants were arrested together. The K9 officer also found 

clothing matching the reports of the perpetrators’ clothing, including a jacket, 

near the location of their arrest. Plus, the victim’s cell phone was found 

inside the jacket pocket. 

Given the abundance of other evidence that defendants committed the 

robbery, any error in admitting Detective Mahon’s testimony not for the truth 

of the matter, but for the limited purpose to show whats he did next as a 

result of that information, was harmless under Chapman, as well as Watson.

8

CALCRIM No. 315

The second witness—who called police after two men ran in front of her 

car on the Highway 242 overpass—testified that one male was White with 

“really short” hair, and he was “shirtless, shoeless” and “had some tattoos.” 

She estimated he was “approximately 35 years old,” with a “bulkier than 

average, but more like muscl[ar]” build. She only saw the hands of the 

second person, but identified that person as Black, with dark skin, wearing “a 

hoodie and like baggy jeans,” and “skinnier than the [W]hite male.” At trial, 

this witness testified she was “certain” that defendant McCullough was the 

White male who ran in front of her car. 

After close of evidence, the court instructed the jury. Both McCullough 

and the district attorney requested CALCRIM No. 315. Without objection or 

request for modification, the trial court instructed the jury as follows: “You 

have heard eyewitness testimony identifying the defendant. As with any 

other witness, you must decide whether an eyewitness gave truthful and 

accurate testimony. [¶] In evaluating identification testimony, consider the 

8

 We therefore need not, and do not, address defendant’s assertion that 

the challenged testimony was “testimonial” in character under Crawford v. 

Washington (2004) 541 U.S. 36, and therefore prejudice must be evaluated 

under the Chapman standard. 
12

following questions: [¶] Did the witness know or have contact with the 

defendant before the event? [¶] How well could the witness see the 

perpetrator? [¶] What were the circumstances affecting the witness’s ability 

to observe, such as lighting, weather conditions, obstructions, distance, and 

duration of observation? [¶] How closely was the witness paying attention?

[¶] Was the witness under stress when he or she made the observation? 

[¶] Did the witness give a description and how does that description compare 

to the defendant? [¶] How much time passed between the event and the time 

when the witness identified the defendant? [¶] Was the witness asked to pick 

the perpetrator out of a group? [¶] Did the witness ever fail to identify the 

defendant? [¶] Did the witness ever change his or her mind about the 

identification? [¶] How certain was the witness when he or she made an 

identification? [¶] Are the witness and the defendant of different races? 

[¶] Was the witness able to identify other participants in the crime? [¶] Was 

the witness able to identify the defendant in a photographic or physical 

lineup? [¶] Were there any other circumstances affecting the witness’s ability 

to make an accurate identification? [¶] The People have the burden of 

proving beyond a reasonable doubt that it was the defendant who committed 

the crime. If the People have not met this burden, you must find the 

defendant not guilty.” (CALCRIM No. 315, italics added.)

Defendants now claim the trial court prejudicially erred in instructing 

the jury with CALCRIM No. 315. Specifically, they maintain the court erred 

in instructing the jury it could consider an eyewitness’s level of “certainty” in 

evaluating identification testimony because “scientific studies” demonstrate 

there is no relationship between the certainty of an eyewitness identification 

and the accuracy of the witness’s testimony. 
13

Again, having failed to object to the instruction and request that it be 

modified, defendants have forfeited any challenge to the instruction on 

appeal. (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez) [trial court 

had no sua sponte duty to modify CALJIC No. 2.92 on identification to 

exclude the certainty factor, and defendant therefore forfeited issue].)

In an attempt to avoid forfeiture, defendants assert they did not want 

the instruction “modified,” but rather, wanted the instruction to “not be used 

at all.” The record is to the contrary. McCullough requested CALCRIM No.

315, and Davis voiced no objection to it. 

They further claim any objection would have been futile. While failure 

to object may be excused when the governing law at the time affords no 

legitimate ground for objection (People v. Rangel (2016) 62 Cal.4th 1192, 

1215), there was, in fact, case law that could have supported the objection 

they are now attempting to pursue on appeal. (See Sánchez, supra, 

63 Cal.4th at pp. 495–498 (conc. opn. of Liu, J.) and the cases cited therein.) 

Indeed, as of the time of trial, People v. Lemcke (2021) 11 Cal.5th 644 

(Lemcke), which dealt with the witness “certainty” factor, had been pending 

before the Supreme Court for six months. Accordingly, there is no doubt 

defendants could have raised the issue in the trial court. They did not and 

forfeited the issue. (See People v. Rodriguez (2019) 40 Cal.App.5th 194, 199

[“Rodriguez argues CALCRIM No. 315 violates his Fourteenth Amendment 

due process rights because it tells the jury to consider eyewitness certainty. 

Rodriguez’s counsel did not object at trial. This is forfeiture.”].) 

In any case, even if defendants had not forfeited the issue, any error in 

the instruction was harmless. In Sánchez, for example, the Supreme Court 

ruled that in addition to defendant having forfeited the witness certainty 

issue, any error in CALJIC No. 2.92 on identification was harmless because 
14

the instruction “cited the certainty factor in a neutral manner, telling the 

jury only that it could consider it. It did not suggest that certainty equals 

accuracy.” (Sánchez, supra, 63 Cal.4th at p. 462.)

Five years later, the high court decided Lemcke, supra, 11 Cal.5th 644. 

In that case, the defendant was convicted of assault and robbery. The 

prosecution’s case turned on “testimony of the victim, who identified [the 

defendant] as her assailant and confirmed that she had previously identified 

[him] during a photographic lineup.” (Id. at p. 646.) After the prosecution 

requested CALCRIM No. 315, defense counsel, citing to the concurring 

opinion in Sanchez, objected to the instruction and requested the court 

modify it by striking the eyewitness certainty factor. (Id. at p. 652.) The trial 

court declined to do so, “explaining that the certainty language set forth in 

CALCRIM No. 315 was consistent with the defense expert’s testimony that 

confidence can be reliable under certain circumstances. The court 

acknowledged the expert had cast doubt on the usefulness of certainty more 

generally but concluded that the defense could raise those points at closing 

argument.” (Ibid.)

On appeal, the defendant argued the “certainty instruction violated his 

federal and state due process rights to fair trial [citations] because empirical 

research has shown that a witness’s confidence in an identification is 

generally not a reliable indicator of accuracy.” (Lemcke, supra, 11 Cal.5th at

pp. 646, 654.) Specifically, he asserted the instruction lowered the 

prosecution’s burden of proof by “causing jurors to ‘equat[e] certainty with 

accuracy, when science establishes otherwise,’ ” and the instruction denied 

him a “ ‘ “meaningful opportunity to present a complete defense” ’ as to ‘why 

the identification was flawed.’ ” (Id. at p. 657.) 
15

The Supreme Court rejected the defendant’s due process claims stating, 

“When considered in the context of the trial record as a whole, listing the 

witness’s level of certainty as one of 15 factors the jury should consider when 

evaluating identification testimony did not render [his] trial fundamentally 

unfair.” (Lemcke, supra, 11 Cal.5th at p. 647.) Moreover, nothing in the 

instruction on witness certainty “operates to ‘lower the prosecution’s burden 

of proof,’ ” and “the instruction does not direct the jury that ‘certainty equals 

accuracy.’ ” (Id. at p. 657.) Instead, the instruction “merely lists the 

witness’s level of certainty at the time of identification as one of 15 different 

factors that the jury should consider when evaluating the credibility and 

accuracy of eyewitness testimony. The instruction leaves the jury to decide 

whether the witness expressed a credible claim of certainty and what weight, 

if any, should be placed on that certainty in relation to the numerous other 

factors listed. . . .” (Ibid.) 

Additionally, the defendant in Lemcke was “permitted to call an 

eyewitness identification expert who explained the limited circumstances 

when certainty and accuracy are positively correlated,” and nothing in 

CALCRIM No. 315, said the court, suggested the jury should ignore that 

testimony. Indeed, the trial court “provided additional instructions” directing 

the jury that it was required to consider the expert testimony. (Lemcke, 

supra, 11 Cal.5th at p. 647.) Plus, the trial court had instructed that the 

defendant was presumed innocent and the prosecution had the burden of 

proving all elements of the crime beyond a reasonable doubt, which further 

“undercut [the defendant’s] contention that the certainty language lowered 

the prosecution’s burden of proof.” (Id. at p. 658.)

Next, the high court ruled there was “no merit” to the defendant’s claim 

that he was denied a meaningful opportunity to present a complete defense.
16

Indeed, stated the court, the record showed the opposite—that the defendant 

“put on a vigorous defense on the issue of identity.” (Lemcke, supra, 

11 Cal.5th at p. 660.) He called an eyewitness identification expert, and he 

had the opportunity to cross-examine the witness regarding her identification 

and the investigating officers regarding the procedures used in photographic 

lineups. (Ibid.) 

Nevertheless, although the instruction did not violate the defendant’s 

due process rights, our Supreme Court joined with other jurisdictions “in 

acknowledging that this form of instruction has the potential to mislead 

jurors.” (Lemcke, supra, 11 Cal.5th at p. 665.) In an exercise of its 

supervisory powers, the court directed “trial courts to omit the certainty 

factor from CALCRIM No. 315 until the Judicial Council has the opportunity 

to consider how the language might be better worded to minimize juror 

confusion on this point.” (Id. at p. 669.) In a footnote the court stated, “We 

have previously distinguished the effect of the certainty instruction in cases 

where a witness has expressed doubt, rather than confidence, about the 

accuracy of the identification. (See Sánchez, supra, 63 Cal.4th at p. 462 

[‘ “[certainty] instruction has merit in so far as it deals with the testimony of 

a witness who expressed doubt about the accuracy of her 

identification. . . .” ’].) The misleading effect we are concerned with here—

that the jury is prompted to believe there is a strong correlation between 

certainty and accuracy despite empirical research showing just the opposite—

is not present when a witness has expressed doubt regarding the 

identification.” (Lemcke, at p. 669, fn. 19.) 

Although the Supreme Court has instructed trial courts to omit the 

certainty factor unless the defendant requests it, any error in including that 

factor in this case was not prejudicial given the overwhelming evidence 
17

against defendants, which we have recounted above. Additionally, various 

witnesses testified regarding the identity of defendants, with various levels of 

certainty. For example, although the second witness testified she was 

“certain” McCullough was the man who ran in front of her car near the 

overpass, the first witness near the gas station testified he was not certain 

the White male was McCullough although he had the “same build.” Finally, 

the certainty factor was one of 15 factors, neutrally given to the jury, and the 

court further instructed the jury that the People were required to prove

defendants’ guilt beyond a reasonable double. 

Accordingly, on this record, any error in including the certainty factor 

in the instruction on eyewitness identification was not prejudicial under 

either Chapman or Watson. 

Davis’s Claims

Defense Counsel’s Closing Argument

In his closing argument, Davis’s counsel focused almost exclusively on 

the firearm enhancement. 

Counsel stated:

“Okay. In this country there are—well, in this country we first say that 

there’s no higher office than that of citizen. And as citizens, there are 

two points where we stand in judgment of our government. First, when 

we go to the polls and we vote for our elected leaders. And the second is 

what 14 people in this box are doing right now. 

“And very soon you’re going to go back in that deliberation room and 

begin to discuss this case. And don’t forget that as you do that, there’s 

a man, Mr. Davis, seated right now in that chair who is charged with 

an enhancement that he did not commit.

“So let’s walk through how we both know that the government, the 

prosecutor here, didn’t prove that personal use enhancement for the 

firearm as to Mr. Davis and didn’t actually come close whatsoever.
18

“Let’s first start with [the victim]. And obviously when it comes to [the 

victim], there’s one thing in this case I think everyone in this room 

agrees on is that [he] was a true victim. Seems like a perfectly nice 

guy. And he was put, through no fault of his own, into a situation that 

was really scary, really unexpected, and happened incredibly quick.

“He was also put into this situation, through no fault of his own, with 

three other individuals who were—who made the choice to cover 

themselves up and did so in an environment with extremely poor 

lighting, very difficult to see.

“And we also know that [the victim] has changed his story as to what 

occurred and how he knows what he relayed to all of you when he was 

on that witness stand. And we know it both from what he said on the 

witness stand and from the two pieces of the phone call that he had 

with . . . [an Inspector]. . . . [¶[] . . .[¶]

“. . . [I]f you recall when [the victim] was on the witness stand testifying 

about the person with the gun, he testified that he made the 

identification of that person as a [B]lack male through the skin of that 

individual’s neck. And I asked him, how certain are you of that that 

you saw the person’s neck and that that’s how you’re able to say the 

person with [the] gun as a [B]lack person. And he said 90 percent. And 

now we know on February [sic] 6th, that’s not what he said. We know 

that his memory of this event has changed. 

“Now, the prosecutor wants to put forth his memory as though it were a 

movie, something you could just push play and it’s going to be the same 

thing every time you watch it. But that’s not the case. Memory is a 

tough thing. And we know because of this dynamic situation, because 

of probably what he heard from Officer Perry when he was in the field, 

and because of the nature of memory itself, that [the victim’s] memory 

has changed.

“There’s certain things that no one is questioning. There’s no question 

that he was robbed with a gun, there’s no question that there were 

three individuals that robbed him with this gun, but his ability to 

determine who each person was, who the respective players are is 

absolutely questionable because you’ve heard it yourselves.
19

“His story has changed. And it’s his story and his story alone by which 

the prosecutor is trying to link the personal use enhancement to Mr. 

Davis, trying to say that Mr. Davis is the person that held that gun.

“Also keep in mind that while this occurred, we heard from [the victim] 

that the person with the gun was actually behind him, that it would 

have been incredibly difficult for [the victim] to see any portion of that 

person regardless of whether they had a mask on based on where he 

was positioned and especially in light of the fact there were unknown 

individuals to his front.

“We also know that Officer Perry influenced [the victim’s] statement, 

his testimony, his memory. And that’s through no fault of [the victim].

“[The victim] was put in an incredibly vulnerable position, terrifying 

position, and immediately after that position—that situation occurred, 

that crime occurred, he was put in contact with Officer Perry, someone 

he was understandably looking to for protection, an authority figure.

“And while his mind is racing, while he is still living through the terror 

of that event, Officer Perry is relaying information both to him and 

through dispatch. And his brain is taking that information and trying 

to incorporate it into what he just experienced, trying to make that 

information a part of his narrative, something that he told you on the 

witness stand, testified to on the witness stand as though it happened 

to him, as though it were his memories. [¶] . . . [¶]

“So Corporal Perry on that witness stand, he described Mr. Davis 

making an unusual motion, kind of this shimmying motion that I’m not 

going to try to imitate while Mr. Davis was walking down the path with 

these two other individuals.

“Now, let’s assume this robbery occurred. Why on Earth would Mr. 

Davis be making that motion to a police officer moments after 

committing this robbery?

“Well, one reasonable explanation is that it would provide an 

opportunity for the other two people to ditch the gun and the laptop on 

the trail, just throw it in the moment when Officer Perry was looking at 

Mr. Davis and not them. 
20

“So what can you infer from that? You can infer that Mr. Davis is not 

the person who held the firearm, because he’s essentially acting as the

distraction so that the person who actually did have the gun during the 

course of this robbery can get rid of it. 

“I want to say something else about Officer Perry. Officer Perry, who 

we heard a lot about when it comes to his training and experience with 

firearms, he’s someone who’s been clearly interested in guns, raised 

with guns. When he first saw the gun, he thought it was a replica, a 

fake.

“Of course, I’m not going to get up here and argue the gun, in fact, was 

a fake, but I do think that’s something you can consider when it comes 

to Officer Perry’s ability to see what’s going on on this path at night.

“He’s an expert with guns, and yet when he first sees it thinks it’s a 

fake gun. And he’s a trained observer, we heard that from the 

prosecutor, that he’s a police officer who in that moment is in 

investigative mode. And when he sees this gun on the side of the trail, 

he thinks it’s fake, and it’s only sometime later when he realizes that 

it’s, in fact, a real gun.

“So if the trained observer is making mistakes on this path at this time 

of night and the trained observer has not been victimized, isn’t it also 

reasonable that [the victim] can make some mistakes as well. . . .

“And we also know there’s a third suspect on the trail, someone right in 

front of Officer Perry that he can’t identify, okay. He saw the person, 

and now his memory has failed him. And that happens to all of us, and 

it doesn’t mean you did anything wrong. But that’s the lens and the 

reality by which this jury has to look at the evidence in this case and 

make the determination as to whether the government has proven that 

enhancement.

“The prosecutor brought up the K-9 dog, so I’ll make a few brief 

comments about that.

“The dog—we don’t know who the dog tracks of if the dog is tracking 

anyone from the trail of the robbery to the Shell gas station. We do 

know that once the dog is provided with the wallet, that he tracks to 
21

the jacket that the prosecutor has said belonged to my client Mr. Davis, 

and in that jacket there is the gold cell phone.

“Now, [the victim] made it clear that whoever had the gun wasn’t the 

person taking the items; that the person who had the gun was standing 

behind him holding the gun up while the other two went through his 

pockets.

“So if Mr. Davis was the person with the gun who was not taking the 

items, how did he end up with the cell phone? How did the wallet that 

was taken from [the victim] provide the dog with a track to my client’s 

jacket?

“The only explanation would be that it’s my client who is taking the

items and not the one holding the gun.

“Okay. There’s also DNA. This gun was preserved for firearm testing, 

and there’s been no explanation as to what happened with that.

“Now, because the government has such a high burden, this is it for me, 

you’re not going to hear from me again, the prosecutor gets their chance 

at rebuttal. And there’s a few things I want to say about rebuttal 

generally.

“I don’t anticipate this is going to happen here, but I’ve had the 

experience where new arguments I’ve never heard before are raised on 

rebuttal. And obviously that’s called sandbagging. That’s not right

because I can’t respond. I’m very confident that will not happen here, 

but as an advocate I got to cover all my bases.

“So if it does, I’m going to rely on this jury to simply ask yourselves, 

what is the reasonable response to that. If [defense counsel] had the 

opportunity to respond to that argument he’s never heard before, what 

would that response be. 

“And I’m sure that the prosecutor is going to address the DNA in his 

rebuttal, because he has to, why we haven’t heard a thing about that. 

No matter what he says, I want you to keep in mind this reality.

“The burden of proof lies on one side. That is the government. And in 

this case you have giant void when it comes to the DNA on that gun, 
22

the DNA that can link—the potential to link the gun to whoever was 

holding it that night, and this jury has nothing.

“I’m also going to make a few comments about this prior incident, this 

prior robbery that my client committed.

“Now, outside the presence of the jury, Judge Brady took judicial 

notice. My client’s birthday is [redacted].

“So, when that prior incident occurred, my client was 13 years old and 

two months. And the prosecutor made clear, something we do agree on, 

that it can only be used—that prior incident can only be used for two 

things: One is intent. But really I would argue that shouldn’t be 

considered here, because somebody pulls a gun on someone and takes

their stuff, they’re intending to rob them, okay. There’s no question.

“Two is this MO, that the nature of that prior robbery was so distinct 

and unique that that’s, in and of itself, something that can be used to 

show that my client was the robber here.

“But again, that doesn’t have any actual application. My client was 13 

years old. You know, the idea that because he made a mistake when he 

was 13, that the similarities involved there have any application here, 

it’s a stretch. This jury should not consider it for any purpose when it 

comes to any issue, and especially the issue of whether the use 

enhancement has been proven. 

“Now I’m going to wrap up with some of these legal concepts that we’ve 

already hit, so I’m going to move quick because I know you’ve already 

heard about them.

“But this is a different graphic I don’t think [McCullough’s counsel] 

showed you when it comes to circumstantial evidence. Specifically I 

want to talk about the application of circumstantial evidence to the 

personal use enhancement.

“So if this jury looks at all the evidence, the evolution of [the victim’s] 

testimony, the lack of forensic evidence, the lighting on the trail, and 

thinks that it is both reasonable that Mr. Davis could have had the gun 

in his hand, and also reasonable that Mr. Davis did not have the gun, it 

was one of the two other people, in that situation on the personal use 
23

enhancement the law requires a not guilty or, in this case, a not true 

finding for that enhancement. And it is only when the idea that it was 

not Mr. Davis with that gun is an unreasonable idea, that the law 

compels a guilty or true finding as to the personal use enhancement.

“This is the same idea as the language that’s going to come directly out 

of the instruction. If one of the conclusions you can draw from 

circumstantial evidence, whether it comes to a particular piece of 

circumstantial evidence or a case that’s based entirely on 

circumstantial evidence like this one, and one of those conclusions 

points to innocence and that’s reasonable, boom, not guilty.

“Okay. So that’s the whole instruction you’re going to get, but I want 

you to focus on just this one little part right now.

“Let’s talk about this. Proof beyond a reasonable doubt leaves you with 

an abiding conviction. Those two words are critical. Abiding is long 

lasting. Conviction is a deeply held belief.

“So in other words, when it comes to that enhancement, does it leave 

you with a deeply held long-lasting belief that the prosecutor has 

proven it was Mr. Davis with that gun. . . . [¶] . . . [¶]

“This abiding conviction has to be something, a belief that stays with 

you for days, weeks, months, and years. And in light of what the 

testimony and evidence you have here, that’s simply not possible when 

it comes to the issue of the personal use enhancement. [¶] . . . [¶]

“. . . [P]roof beyond a reasonable doubt. That’s the standard that 

applies to the charge and both the enhancements. That applies to both 

of these individuals.

“Here’s that gray area that [McCullough’s counsel] talked about. Now, 

ultimately all of this kind of points to one question when it comes to 

Mr. Davis and the argument I’ve addressed here. Can you rule out 

reasonable doubt? That’s his job. He has to eliminate reasonable 

doubt.

“In this case, is it reasonable that someone else was holding that gun. 

Based on all the changes you’ve heard in the testimony of [the victim], 

and all the problems with the lighting and the lack of forensic evidence, 
24

is it just reasonable that it wasn’t Mr. Davis? If it is, that finding and 

the enhancement is not true.

“Now, when it comes to this enhancement of the firearm, it talks about 

how your job as citizens standing judgment of your government. You 

know, you’re near the end, but you’re at the most critical part as well.

“Mr. Davis is charged with this crime and this enhancement that he did 

not commit. He’s on the precipice of a profound injustice, and there’s 

no 12 people on this Earth that can save him from the fall but the 12 of 

you. [¶] . . . [¶] The personal enhancement has not been proven. I 

thank you for your service.” 

During rebuttal, the prosecutor stated, “You also notice that [Davis’s 

counsel] practically conceded the robbery on Mr. Davis. He didn’t talk about 

it at all. He’s given up.” 

After the jury exited to deliberate, McCullough’s counsel asked the 

court “to put something on the record.” She stated, “So there was something 

with regard to [the prosecutor’s] rebuttal and closing argument that I did 

want to note, which is that [the prosecutor] made the assertion that Mr. 

Davis . . . had conceded the robbery. [¶] . . . [¶] And so I’m concerned that 

[the prosecutor] argued in front of the jury that that concession was made, 

even though I think that under the law the requirements are clearly very 

different in order to concede a charged offense. So I did just want to note that 

issue for the record.” 

The court responded, “I think we may have a different situation here,” 

but asked for Davis’s counsel response. Counsel replied, “I don’t think I have 

anything to say.” The court then allowed McCullough’s counsel to research 

the issue and bring up any concerns.

The next day, the court stated,“So what I received is a request from 

defense counsel for Mr. McCullough to file and cite two cases in support of 
25

the issue that we talked about yesterday, the objection that was made with 

regard to closing arguments.” The People took the position that 

McCullough’s counsel was asserting prosecutorial misconduct, and that the 

issue was therefore waived because she failed to object to his statement at 

the time he made them in his rebuttal. Or, alternatively, that defense 

counsel lacked standing to object on behalf of Davis. 

McCullough’s counsel explained she was actually asserting structural 

error. She stated, “I understand that [Davis’s counsel] did not say explicitly ‘I 

am conceding the robbery on behalf of my client.’ But I think a fair reading of 

the record is that that is what was said and, in fact, [the prosecutor]then got 

up and argued [Davis’s counsel] has conceded the charge of robbery, has said 

that that charge is true for his client. And there was no objection from 

[Davis’s counsel] as to that point. . . . [¶] My concern is that on this record 

there has been an implicit concession as to that charge, especially given [the 

prosecutor’s] arguments and the lack of response, and I think that that 

creates a potential for structural error that affects my client. Because, as the 

Court heard in closing argument, [the prosecutor] argued that because there 

was this concession from [Davis’s counsel], that that now has an effect on how 

the jury should see my client and whether or not he should be found guilty of 

these charges. [¶] So the point that I want to make very clear for this record 

is that I do believe my client has been prejudiced by what I believe may be an 

error that occurred during this trial, and I just want to note that for the 

record.” 

The court decided to address the merits, regardless of any issues of 

waiver or standing. After once again hearing from McCullough’s counsel and 

the prosecution—Davis’s counsel again declined to make any comments—the 

court stated, “I think there’s a substantial question mark whether or not in 
26

this particular factual scenario, whether or not Mr. McCullough can complain 

about the strategic argument decisions that were made by Mr. Davis’ counsel. 

[¶] I’ve read the cases, and the one thing that distinguishes all of them, 

frankly, from what occurred in this case is there was absolutely no concession 

during Mr. Davis’ counsel’s argument. [¶] You can imply lots of things, but 

counsel make strategic decisions about strengths and weaknesses of their 

case, and argues appropriately. And it was clear from the closing argument 

to me that [Davis’s counsel] was focusing on the firearm issue and not 

mentioning or focusing on the robbery itself. [¶] I don’t think that’s

necessarily and I don’t think legally you can assume that that is a 

concession.” Continuing the court stated, “I think competent defense counsel 

makes choices about how they argue their case to focus the jury on what they 

think is most advantageous to their client, and in this case it appears as 

though [Davis’s counsel] focused on the firearm because this is the 

enhancement that carries the biggest impact for his client. . . .” Finally, the 

court noted that what the prosecutor argued in rebuttal was not evidence—

and that indeed, the jury is instructed “regularly, the arguments of counsel 

are not evidence”—and even so, the prosecutor’s comments did not “make it a 

concession either.” 

On appeal, Davis, citing McCoy v. Louisiana (2018) 584 U.S. __ [138 

S.Ct. 1500] (McCoy), contends his “Sixth Amendment right to maintain his 

innocence . . . cannot be overridden by counsel’s tactical decision” of 

concession. (Capitalization & boldface omitted.) 

In McCoy, defense counsel had concluded “the evidence against McCoy 

was overwhelming and that, absent a concession at the guilt stage that 

McCoy was the killer, a death sentence would be impossible to avoid.” 

(McCoy, supra, 138 S.Ct. at p. 1506.) Counsel relayed his strategy to the 
27

defendant, who objected to any admission of guilt and “vociferously insisted” 

in his innocence. (Id. at p. 1505.) Nevertheless, over the defendant’s 

objection, counsel conceded guilt. (Ibid.) In his opening statement, counsel 

told the jury “there was ‘no way reasonably possible’ that they could hear the 

prosecution’s evidence and reach ‘any other conclusion that Robert McCoy 

was the cause of these individuals’ death.’ ” (Id. at p. 1506.) He continued, 

“the evidence is ‘unambiguous,’ ‘my client committed three murders.’ ” 

Despite defendant’s testimony maintaining his innocence, counsel also—in 

his closing argument—“reiterated that McCoy was the killer.” (Id. at 

p. 1507.)

The United States Supreme Court granted certiorari to determine 

“whether it is unconstitutional to allow defense counsel to concede guilt over 

the defendant’s intransigent and unambiguous objection.” (McCoy, supra, 

138 S.Ct. at p. 1507.) The court held, “When a client expressly asserts the 

objective of ‘his defen[s]e’ is to maintain innocence of the charged criminal 

acts, his lawyer must abide by that objective and may not override it by 

conceding guilt.” (Id. at p. 1509.) The court concluded that defense counsel’s

failure to abide by that objective was structural error and a new trial was 

required. (Id. at p. 1511.)

McCoy differs markedly from the instant case. 

To begin with, as the trial court observed, defense counsel did not 

expressly concede guilt on the substantive offense. Rather, counsel made the 

tactical choice to focus on the enhancement, which carried a substantially 

higher sentence than that of the substantive offense. Moreover, Davis’s 

closing argument followed that by McCullough, and McCullough’s attorney 

focused on the substantive offense, as well as on the armed enhancement 

(which the court later struck for purposes of sentencing). 
28

Defendant claims, however, that “the gist” of his attorney’s argument 

was that he “was one of the robbers, but not the one with the gun.” He points 

in particular to that portion of the argument where his attorney stated, 

“There’s certain things that no one is questioning. There’s no question that 

[the victim] was robbed with a gun, there’s no question that there were three 

individuals that robbed him with this gun, but his ability to determine who 

each person was, who the respective players are is absolutely questionable 

because you’ve heard it yourselves.” 

However, this was not a concession by counsel that either his client, or 

McCullough, were the perpetrators. In fact, Davis acknowledges his attorney 

subsequently “argued the robbery as an assumption,” but maintains counsel 

had “already conceded that it did happen.” However, the record does not bear 

that out. Indeed, his attorney ended his closing argument by stating, “Mr. 

Davis is charged with this crime and this enhancement that he did not 

commit.” (Italics added.) 

Davis’s reliance on the prosecutor’s statement on rebuttal—that “You 

also notice that [Davis’s counsel] practically conceded the robbery on Mr. 

Davis”—is similarly unavailing. The jury was expressly instructed that 

nothing counsel said in their closing arguments was evidence. “We presume 

the jurors understood and followed the instructions.” (People v. Johnson 

(2015) 61 Cal.4th 734, 770.) 

Unlike in McCoy, there also were no “vociferous” or “insistent” 

objections by defendant to his counsel’s closing argument. Defendant 

contends the record “supports the inference that [he] intended to invoke his 

Sixth Amendment right to maintain innocence” because he pled not guilty 

and because he “elected trial by jury, thereby invoking his due process right 

to have every element of the offense proven by the prosecution beyond a 
29

reasonable doubt.” But every defendant who goes to trial pleads not guilty 

and declines to waive a jury—these initial defense actions say nothing about 

the strategy that is ultimately adopted at trial. (See McCoy, supra, 138 S.Ct. 

at p. 1509 [“If a client declines to participate in his defense, then an attorney 

may permissibly guide the defense pursuant to the strategy she believes to be 

in the defendant’s best interest.”].)

In sum, there is no merit to Davis’s claim that his counsel’s strategy at 

trial—to focus on the enhancement—was contrary to Davis’s personal 

objective and therefore a violation of his Sixth Amendment rights. 

Prior Armed Robbery Conviction

Pursuant to the parties’ stipulation, the following was read to the jury: 

“Defendant Jarmon Davis was charged with and admitted to committing a 

felony violation of Penal Code section 211, second-degree robbery . . . , on 

September the 24th, 2013.” 

On appeal, defendant contends the “fact of [his] prior adjudication was 

inadmissible; only the underlying conduct was admissible,” and this 

erroneous admission violated his state and federal due process rights to a fair 

trial. 

Having stipulated to the admission of his prior adjudication, Davis has 

waived any claim of error. (People v. Gallego (1990) 52 Cal.3d 115, 195 

[defendant waived claim of prejudicial error by counsel’s stipulation to an 

instruction on “defendant’s prior criminal record, including an adjudication 

for lewd conduct when he was 13, and an adjudication for armed robbery 

when he was 16”].) 
30

McCullough’s Claims

Parole Revocation Fine

At sentencing, based on “an implied finding of [McCullough’s] inability 

to pay,” the trial court declined to impose a restitution fine pursuant to 

section 1202.4, subdivision (b).

9 However, over counsel’s objection, the court 

went on to impose and stay an $800 parole revocation fine pursuant to 

section 1202.45, subdivision (a).

10

 

On appeal, McCullough contends, and the Attorney General concedes,

the trial court erred in imposing the $800 parole revocation fine. The 

concession is well taken. As the Attorney General acknowledges, the trial 

court cannot impose a parole revocation fine under section 1202.45, 

subdivision (a), that exceeds the restitution fine imposed under section 

1202.4, subdivision (b), which, in this case, was zero. We therefore shall 

remand the case for the trial court to strike the parole revocation fine.11

DISPOSITION

The matter is remanded back to the trial court to strike the parole 

revocation restitution fine as to McCullough. In all other respects, the 

judgements are affirmed. 

9 Section 1202.4, subdivision (b) provides, “In every case where a 

person is convicted of a crime, the court shall impose a separate and 

additional restitution fine, unless it finds compelling and extraordinary 

reasons for not doing so and states those reasons on the record.” 

10 Section 1202.45, subdivision (a) provides, “In every case where a 

person is convicted of a crime and his or her sentence includes a period of 

parole, the court shall, at the time of imposing the restitution fine pursuant 

to subdivision (b) of Section 1202.4, assess an additional parole revocation 

restitution fine in the same amount as that imposed pursuant to subdivision 

(b) of Section 1202.4.

11 Given that we have rejected all of McCullough’s other claims of 

error, we need not, and do not, address his final claim of cumulative error.
31

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

East, J.

A158089, People v. Davis, A157271, People v. MCCULLOUGH