1

Filed 8/18/23 P. v. Blackwell CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

COSTEL LO BLACKWELL,

Defendant and Appellant. A162883

(Solano County

Super. Ct. No. VCR233205 )

This is an appeal from final judgment after a jury convicted defendant

Costello Blackwell of attempted murder and assault with a firearm

, and

found true multiple firearm use enhancements . The trial court then found

true allegations that defendant had two serious or violent felony priors

qualifying as strikes and two serious felony priors before sentenc ing him to

52 years to life . This sen tence included an upper

, nine

- year term for the

attempted murder, tripled pursuant to the “Three Strikes” law

.

On appeal, defendant contends th e trial court committed prejudicial

cumulative error and violated his constitutional right to a fair t rial by

(1) admitting detailed evidence relating to an uncharged murder he allegedly

committed and (2) excluding evidence relating to the victim’s inconsistent

statement that someone else shot him . Defendant further argues, and the

People concede, we must remand this matter for further proceedings because2

(1) ameliorative changes to Penal Code 1 s ection 1170, subdivision (b) apply

retroactively in this case to limit the trial court’s disc re tion to impose the

upper term and (2) the trial court erroneously failed to award presentence

c onduct credits. We agree with the parties this matter must be remanded for

further proceedings to permit the trial court to resentenc e defendant under

the amended version of section 1170, subdivision (b) and to recalculate his

presente nce credits. In all other regards, we affirm the judgment

.

FACTUAL AND PROCEDURAL BACKGROUND

On January 10 , 2019, an information 2 was filed charging defendant

with attempted murder of Teiquon C. ( §§ 664, 187; count 1) and assault with

a firearm on Teiquon C. (§ 245, subd. (a)(2); count 2 ). The information

alleged that as to count 1 defendant discharged a firearm causing great

bodily harm (§ 12022.53, subd. (d)) and as to count 2 he personally used a

firearm in its com mission (§ 12022.5). Further, the information alleged

defendant had two serious or violent felony priors that qualified as strike

offenses (§§ 667, subd. (d), 1170.12, subd. (b)) and two serious felony priors

(§ 667, subd. (a)). A jury trial began on Feb ruary 4 , 2020.

I. The Prosecution’s Case.

Teiquon C. was released from prison on or about January 8 , 2018.

Although his parole officer arranged for him to enter residential drug

treatment programs, Teiquon C. was kicked out and needed a place to stay.

In early 2018, defendant and Teiquon C. were friends, and defendant allowed

him to stay in a trailer on his property in Vallejo

. Admittedly, Teiquon C.

1 Unless otherwise stated, all statutory citations herein are to the Penal

Code.

2 An amended information was filed on January 30

, 2020, to correct

defendant’s prior conviction dates.3

was using quite a bit of methamphetamine at the time. D efendant helped

Teiquon C. find a job as a watchman at a moving company

, owned by

David R. , located at 709 Admiral Callaghan Lane in Vallejo . Eventually,

Teiquon C. began doing other jobs for the company and sta ying in a blue

trailer on the property

. Another man, Charles F. , an associate of defendant,

lived near the trailer and also watched over the property.

A. November 1, 2018: Tei quon C. Is Shot.

On November 1 , 2018, police officers picked up Teiquon C. near his

trailer because he was required to register as a gang member

. After his

registr ation , Officer Martinez asked Teiquon C. if he knew why he was being

questioned

. Teiquon C. responded that it could be related to a witness

intimidation case. Officer Martinez then asked Teiquon C. about the

February 2018 murder of Daryl Huckaby, for which a man identified as

Daniel S. had been arrested. Officer Martinez advised Teiq uon C. that

Daniel S.’s wife told them Teiquon C. might have information about th is

murder. Teiquon C. and Daniel S.’s wife were “ friends ” and had

c ommunicat ed through a social media network. Teiquon C. acknowledged

that he was in the vehicle with defendant when defendant shot Huckaby , who

was driving a recreational vehicle . Officer Martinez had difficulty

understanding Teiquon C.’s explan ation of what transpired

, so he brought

out a map as an aid for the interview . After their meeti ng , Officer Martinez

dropped Teiquon C. off near 709 Admiral Callaghan Lane

.

Charles F. was at 709 Admiral Callaghan Lane when officers picked up

Teiquon C. on November 1 , 2018

, and later asked Teiquon C. why they

contacted him

. Teiquon C. replied t he meeting related to his gang

registration

.4

Later that evening, about 9:50 p.m., Teiquon C. entered a gas station at

708 Admiral Callaghan Lane

, bleeding profusely from his elbow. Teiquon C.

told a man in the store “Costello Blackwell” shot him, and the man called

911. Teiquon C. was taken to a hospital, where hospital records noted an

accidental shotgun discharge. X

- rays showed Teiquon C. suffered a shotgun

wound at close range to his left elbow that required surgery. Teiquon C. also

had stippling on his face and abrasions on the middle knuckles of the second

through the fifth fingers o f his right hand, which he could not explain.

Teiquon C. additionally suffered a corneal abrasion to the eye.

Officer Martinez interviewed Teiquon C. at the hospital on the morning

of November 2 , 2018

. Teiquon C. told him that defendant shot him while

wearing a wig . After the shooting , defendant wanted Teiquon C. to go with

him, telling Teiquon C. , “I shouldn’t even be letting you live.” Teiquon C.

responded, “ I ain’t gonna say nothing.” Defendant replied, “ [N]o , but you that

type of nigga that snitch.”

Officer Martinez asked what happened to Teiquon C.’s right hand , as

his hand was not injured during their meeting the previous day

. Officer

Marti nez thought Teiquon C.’s hand injury was consistent with having been

in a fight, but Teiquon C. told him that a shotgun blast hit him in the hand

and that he had been shot four or five times.

At trial, Teiquon C. testified that about 9:40 p.m. on November 1 , 2018,

he was on the phone in the blue trailer. He heard a noise

, and when he stood

up , he was shot. Teiquon C. looked up to see defendant, wearing a wig and a

beanie, standing in the doorway with a shotgun. Teiquon C. s aid defendant

shot at him tw o or three times. On e shot hit his left arm, and another grazed

the back of his right hand before hitting the wall of the trailer

. Teiquon C.

tried to spin out of the way of the third shot and knocked over a lamp.5

Defendant mentioned “all that shit you were talking” and warned that

Teiquon C. did not want to make him an enemy. Defendant then offered to

drive Teiquon C. to the hospital

. According to Teiquon C. , he followed

defendant out of the trailer toward a parked car. However, Teiquon C. then

noticed that defendant was reloading his shotgun, so he turned and ran

through an opening in the fence to the gas station across the street.

B. The Crime Scene.

The officers who responded to t he 911 call at the gas station followed a

trail of blood across the street to the blue trailer. Blood was found on the

stairs le a d ing to the trailer’s door , which was open and splintered

. A bloody

jacket was on the ground at the trailer’s entrance. Insi de, blood was found on

the floor, on the wall

, and near the bed. There was a bat on the bed. On the

floor was a work receipt with a bloody footprint and the name “Costello” on it.

The officers retrieved an expended shotgun shell case outside the

trailer near the door, as well as an expended wad from a shotgun shell that

appeared to have blasted through the wall. There was a knife on the ground

next to the shotgun shell. 3 DNA analysis of the shotgun casing indicated at

least one male contributor. Howe ver, both defendant and Teiquon C. were

excluded as potential contributors.

C. Defendant’s Cell Phone Communications.

Data extracted from defendant’s cell phone showed that he was in

frequent communication with his wife, Teiquon C. and Charles F. on

November 1 , 2018. For example, defendant repeated ly texted Teiquon C.

while Teiquon C. was meeting with police officers. Between 2:22 and

2:25 p.m. , defendant texted the following: “Answer your phone.” “You acting

like a true dope fiend.” “Dave told me to buy you some food, dot dot dot . I got

3 The knife was not seized as potential evidence

.6

to take this truck back, so you can just take the money and go get whatever

you want dot dot. Dope or food, dot dot. So do you want the cash or not.

Question mark. ”

At 3:23 p.m. , defendant again tried to contact Teiquon C. , texting him :

“How everything is going for you right now and how you are feeling right

now

, it’s all based on one decision that you made. You was doing good at

first. Everybody had your back. Everybody’s going to look out for you and

make sure you was all right. But you decided to make the decision to become

a dope fiend again. And not only that, you have become a dope fiend with

paranoid schizophrenic ass ways where you think that everybody is out to get

you. But N, asterisk as terisk asterisk , to be honest with you, nobody gives a

damn. You F, asterisk asterisk asterisk, yourself and you want you to

remember that, dot dot dot. You let

— don’t become your best friend and all

the people who give a F, asterisk asterisk asterisk, ar ound you to become

your enemy dot dot dot idiot. Exclamation point. ”

At 3:33 p.m. , defendant tried to call Charles F., and then at 3:35 p.m.

he texted Charles F. : “Text me if you see this N Teiquon back here, dot dot

dot. I am taking the truck. Wifey following me.” Finally, at 3:43 p.m.,

Teiquon C. texted defendant : “I’m back at the [moving company] yard.” At

4:09 p.m. , defendant texted his boss at the moving company : “I am going to

put the N TQ [Teiquon C.] off the yar d, dot dot dot. He is an idiot.”

An expert testified as to the location of defendant’s phone based on its

connection to certain cell phone towers at various times. F rom about

4:30 p.m. to 8:30 p.m. , defendant ’s phone connections reflected that he

travel ed from his Vallejo home to South San Francisco and back, while in

frequent contact with his wife. At 8:35 p.m. , defendant’s wife texted him :

“I pray you make it home safely. ” He responded a minute later: “I love you.”7

“And I will.” At 8:44 p.m. , defendant texted Charles F.: “Do me a favor and

lock up like you always do. And keep an eyes [ sic ] on that truck out back dot

dot dot. If Mike shows up call me dot dot dot. I will be there in a flash dot

dot dot.

. . . I’m in for the night dot dot dot. Tired dot dot dot. ” Then,

between 9:32 p.m. and 9:53 p.m.

, the time of Teiquon C.’s shooting,

defendant’s phone was inactive.

At 9:53 p.m. , defendant called his wife, and his phone connected to a

cell tower close to the crime scene and the freeway. At 9:55 p.m. , defendant

called his wife again, and his phone connected to a different cell tower, one

closer to his residence, indicating he had traveled in a southerly direction.

At 10:18 p.m. , defendant called his wife again . H is phone connec t ed to

a cell tower site near his residence. However, at 10:33 p.m. , when

defendant’s wife called him, his phone connected to a tower site that covered

the moving company yard. Defendant called his wife at 10:57 p.m. and

Charles F. at 11:30 p.m. , and bot h times his phone connected to a tower site

f a rther south, near his residence. 4

Defendant called his wife three more times between 11:50 and

11:56 p.m. He then texted her about midnight to report that he was going to

the yard to “see what’s up

. . . .” About 12:30 a.m. , he texted her that

“something happened at the yard” and he was going to “see what’s up

. . . . ”

At 12:42 a.m.

, he texted her again, stating : “On my way.”

At 3:18 a.m. on November 2

, 201 8, defendant texted Teiquon C.

,

asking : “Where you at question mark. Charles just told me that the room

was all fucked up and bloody dot dot dot. What you do question mark. ” At

3:19 a.m. , defendant texted Teiquon C. again : “Call me dot dot dot. Recal l

4 Defendant’s stepdaugh ter testified that defendant left home between

11 p.m. and midnight on November 1 , 2018.8

talk dot dot dot. ” At 9:34 a.m. , defendant texted Teiquon C. yet again : “Call

one of us, bro, please.” Finally, at 4:10 p.m. , defendant texted “Slim,” stating :

“The dude on meth, dot dot dot dot dot, he was in M.C. with us, dot dot dot,

he is missing in action with blood everywhere at the little shack at the yard,

where he slept dot dot dot. Police was there last night. But for what though

we don’t know dot dot dot .”

D. Defendant’s Arrest and Jail Phone Calls.

The police arrested and interviewed defendant on the evening of

November 2 , 2018. Defendant stated that, on November 1 , 2018, he left the

yard of the moving company about 4:30 p.m. to drive a truck to San

Francisco. He returned to the East Bay about 9:00 or 9:30 p.m. , going

directly home because he was tired. Defendant was unaware anything

unusual occurred until Charles F. called him about 3:00 a.m. to tell him there

was blood everywhere. Defendant denied knowing Teiquon C. had been shot

until the polic e told him, insisting that he was looking for Teiquon C. all day.

When arrested, two cell phones were found in defendant’s car: One

belonged to defendant and the other belong ed to Teiquon C. Police also

recovered four wigs from defendant’s bedroom, whic h he claimed belonged to

his wife. When the police later showed them to Teiquon C.

, he stated that

one of them was the wig defendant wore during the shooting

.

On June 20 , 2019, defendant called a female friend from jail , stating

that he had discussed a one

- year d eal with his lawyer to settle his case and

that his mother was encouraging him to take it. A week later, defendant

called this female friend again to report he took the deal. She responded that

an unknown woman called her to say, “ ‘I don’t know why you’re stuck on this

fool. He shot somebody with a shotgun. He’s facing fifteen years

— you so

dumb’.” Defendant subsequently told the female friend in the same9

conversation, “I mean the

— the what I did

— what they said I did was tr ue

but

— and I was facing that but I had

— I had to take that deal. If I wouldn’t

have took that deal I would have been having to go to trial. But that’s true.

But I wonder who said that though .”

At trial, t he parties stipulated that there were no negotiat ions to settle

this case . F rom the start, both sides believed it would be resolved by a jury.

E. Evidence Related to the Huckaby Murder.

Teiquon C. testified that defendant introduced him to Daniel S. On

February 10, 2018, Daniel S. went to defendant’s house and spoke with him

for a while. Defendant then told Teiquon C. to go with them. Defendant got

a gun

, and the three men left together. D efendant and Teiquon C. traveled in

a Malibu

, and Daniel S. follow ed in a Jeep. Teiquon C. thou ght they were

going to rob someone but later learned Daniel S. had an issue with a girl.

They drove until they came across a recreational vehicle in which the girl was

supposedly a passenger. Daniel S. tried to cut off the recreational vehicle,

and it st ruck his Jeep. According to Teiquon C. , defendant then aimed and

fired his gun at the recreational vehicle ’s driver. Afterward, defendant

appeared happy and boasted that he “ still had it

. . . . ”

At 10:45 p.m. on February 10 , 2018, police foun d a large recreational

vehicle crashed into a f ence at 2200 Tuolumne Street in Vallejo. Huckaby

was inside of this vehicle, slouched over in the front seat . T he motor was still

running and the headlights were on. There was a possible bullet hole just

below the driver’s side window, with the bullet shell casing located about 215

feet away.

An autopsy revealed that Huckaby died from a single gunshot wound

after a bullet entered below his left shoulder, traveled though his left and

right lungs, and came to rest in his right armpit.10

An expert’s DNA analysis of the .380 expended shell casing found at

the scene revealed a weak and incomplete profile with at least two

contributors. Defendant could not be excluded as one of them and was at

least 825 times 5 more likel y to be a contributor than another

, unknown

contributor.

II. Defense Case and Teiquon C.’s Impeach ment

.

Teiquon C. had an extensive history of criminal activity, substance

abuse and mental health issues

. Teiquon C. had multiple prior convictions

,

including for robbery with a gang enhancement and battery on a prisoner.

While imprisoned, Teiquon C. spent a significant amount of time in the

prison psychiatric unit for, among other things, suicide attempts and

reporting hearing demon voices.

In 2017, Teiquon C. was arrested for , but not charged with , dissuading

a witness in a case involving the robbery of a man in Vacaville

. After four

suspects were arrested, the victim did not appear for the preliminary

hearing. Teiquon C. was then arrested after a n investigating officer saw him

and two of the suspects in a gas station surveillance video

, confronting the

victim. In the video, Teiquon C. was seen speaking to the victim before

tak ing out his phone and photograph ing him

. In a subsequent interview

,

Te iquon C. first claimed to have been asking the victim for spare change in

the surveillance video. However, he later changed his story and said he just

wanted to make sure the victim did not get hurt, as the other men in the

video wanted to kill him. Teiq uon C. attended the preliminary hearing,

presumably, the defense investigator testified, to see if the victim would

appear.

5 Defendant’s brief misidentifies this number as 8,325.11

Lamont G. , an acquaintance of defendant, testified tha t he went to 709

Admiral Callaghan Lane in November 2018 at defendant’s reque st to clean

the trailer. Lamont G. found furniture in disarray and blood everywhere

,

both of which he cleaned up. He also found a phone underneath a desk and

gave it to defendant.

Charles F. worked as a caretaker for David R. , the owner of the

business at 709 Admiral Callaghan Lane. Teiquon C. was i ntroduced to him

as defendant’s cousin

. Charles F. found Teiquon C. to be strange , aggressive

and often intoxicated. On November 1, 2018, Charles F. saw a police car in

the parki ng lot but did not see or talk to any officers or Teiquon C. Later, h e

noticed the trailer door hanging open and went to check on it. He found a

mess , with b lood everywhere and stuff thrown about. A bat with bloody

fingerprints on the handle was on the bed. He used his phone to record the

scene and later shared it with David R. and defendant

.

In January 2019, Odell G. was at 709 Admiral Callaghan Lane when he

noticed smoke coming from a warehouse. H e asked Teiquon C. about it.

Teiquon C. told him not to worry about it. While waiting for the fire

department to arrive, Odell G. asked Teiquon C. whether he set the fire.

Teiquon C. again said not to worry about it, adding, “ F [ uck ] the building.”

Teiquon C. also told him

, “David owes me some money, and he’s going to pay.

And F everything that’s in this building and everything that’s got to do with

David.”

A fire investigator later determined there were two points of origin for

the fire, one of which was a pile of combustible materials consis ting of clothes

and cardboard

, that appeared to be the result of a human act.

Teiquon C. testified on cross

- examination that he was not sure whether

he set fire to the warehouse at 709 Admiral Callaghan Lane in January 2019.12

He was across the street when the fire department arrived. When asked

whether he arranged materials in a pile and set them afire, Teiquon C.

replied no and stated, “They were already in a pile.” Police questioned

Teiquon C. about the arson, but he was not charged.

On February 10, 2019, Teiquon C. smashed a window at a market in

Vallejo, entered the market, and stole some merchandise. When police

arrived, Teiquon C. told them to shoot him . I nstead, officers used a stun gun

on him. T.C. said he committed the burglary because he wanted to return to

jail.

A defense investigator interviewed Teiquon C. in February 2019 in

connection with his sentencing in the burglary case. Teiquon C. told the

investigator that he was shot at three times: once in the arm, another time

i n the back, and the third shot hit a wall. Teiquon C. explained that he was

shot for threatening defendant’s wife.

A defense DNA expert testified that the DNA found on the shell casing

retrieved from the scene of Huckaby’s murder was very low

- level . Th e

defense expert further testified

, based on his analysis

, that there was strong

evidence defendant was not a contributor to the DNA sample. In rebuttal,

the prosecution’s expert expressed respect for the defense expert but

di s agreed with his conclusion that defendant was not a contributor

.

III. Verdicts, Sentencing and Appeal.

On March 5 , 2020, defendant waived his right to a jury tr ial on the

alleged priors. The next day, the jury found him guilty as charged and found

true the firearm enhancements.

On July 9 , 2020, a bench trial was held . T he trial court then found true

the alleged prior allegations.13

On May 17 , 2021, the trial court sentenced defendant to a total prison

term of 52 years to life. Specifically, defendant received 27 years to life

— the

upper, nine

- year term tripled due to the prior strikes

— for the attempted

murder count and 25 years to life, to run consecutiv ely, for the great bodily

injury enhancement. The court then stayed imposition of sentence on all

remaining charges and enhancements and awarded presentence custody

credits but not conduct credits. This timely appeal followed.

DISCUSSION

Defendant conte nds the trial court prejudicially erred by (1) admitting

e xtensive evidence relating to the uncharged Huckaby murder and

(2) excluding evidence that Teiquon C. told a fellow inmate in a prison transit

shuttle that someone else shot him . Defendant further contends, and the

People concede, this case must be remanded for resentencing because (1) an

ameliorative postjudgment change to section 1170 applies retroactively to

limit the trial court’s discretion to impose the upper term on count 1 and

(2) the court erroneously failed to award presentence conduct credits.

I. Admission of Evidence of the Uncharged Murder.

Defense counsel moved in limine to exclu de evidence relating to the

Huckaby murder under Evidence Code sections 1101 and 352. The trial court

found the objected

- to evidence relevant to whether defendant had a motive to

shoot Teiquon C. but noted that admitting i t should not “turn this trial into a

separate trial” o n Huckaby’s murder. Defens e counsel then refined his

motion to seek exclusion of any evidence relating to the Huckaby murder that

went beyond the fact that Teiquon C. told police that defendant committed

another murder. The court denied this motion and admit ted the evidence,

which includ ed testimony from multiple witnesses, including Teiquon C. and

Officer Martinez . Additionally, the court provided limiting instructions t hat14

forbade the jury from consider ing this evidence (1) unless the prosecutor

proved by a preponderance of the evidence that defendant murdered Huckaby

and (2) for any improper purpose, including bad character.

Defendant contends the trial court ’s ruling was prejudicial error and

violated his constitutional right to due process

. Defendant concedes some

evidence relating to the uncharged murder was relevant to prove the

prosecution’s theory that he committ ed the charged crimes to retaliat e

against Teiquon C. for tell ing the police he shot Huckaby. However,

defendant insists much of the admitted evidence related to prejudicial details

about the murder that went beyond what was necessary to prove motive

. For

reasons set forth post , we conclude the trial court did not abuse its discretion

in admitting this evidence und er state law or commit constitutional error

under federal law.

A. Governing Law.

“ Evidence Code section 1101, subdivision (a) prohibits admission of

evidence of a person’s character, including evidence of character in the form

of specific instances of uncharged misconduct, to prove the conduct of that

person on a specified occasion. The provision ‘expressly prohibits the use of

an unchar ged offense if the only theory of relevance is that the accused has a

propensity (or disposition) to commit the crime charged and that this

propensity is circumstantial proof that the accused behaved accordingly on

the occasion of the charged offense.’ [C itation.] ‘Subdivision (b) of section

1101 clarifies

. . . this rule does not prohibit admission of evidence of

uncharged misconduct when such evidence is relevant to establish some fact

other than the person’s character or disposition.’ [Citation.]” ( P eople v.

Chhoun (2021) 11 Cal.5th 1, 25 .)15

Thus, “ ‘ “[e]vidence that a defendant committed crimes other than

those for which [he or she ] is on trial is admissible when it is logically,

naturally, and by reasonable inference relevant to prove some fact at issue,

such as motive

. . . . [Citations.] The trial court judge has the discretion

[under Evidence Code section 352] to admit such evidence after weighing the

probative value against the prejudicial effect. [Citation.] When reviewing

the admission of evidence of other offenses, a court must consider: (1) the

materiality of the fact to be proved or disproved, (2) the probative value of the

other crime evidence to prove or disprove the fact, and (3) the existence of any

ru le or policy requiring exclusion even if the evidence is relevant. [Citation.]

Because this type of evidence can be so damaging, ‘[i]f the connection between

the uncharged offense and the ultimate fact in dispute is not clear, the

evidence should be excl uded.’ [Citation.]” [Citation.] “ ‘We review for abuse

of discretion a trial court’s rulings on

. . . admission or exclusion of evidence

under Evidence Code sections 1101 and 352.’ ” ’ [Citation.] ” ( People v.

Thompson (2016) 1 Cal.5th 1043, 1114, 1st, 2d & 4th bracketed insertions

added .)

Under the abuse of discretion standard, “ ‘ “a trial court ’ s ruling will

not be disturbed, and reversal

. . . is not required, unless the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner

that resulted in a manifest miscarriage of justice.” [Citation.]’ ” ( People v.

Foster (2010) 50 Cal.4th 1301, 1328

– 1329 .)

B. Application of the Law to the Facts.

D efendant correctly concedes evidence of the Huckaby murder was

properly admitted to show his motive for the charged offenses

notwithstanding the limits set forth in Evidence Code section 1101

,

subdivision (a)

. ( People v. Thompson, supra

, 1 Cal.5th at pp. 1114

– 1115 .)16

D efen dant nonetheless argues the trial court violated Evidence Code section

352 by admitting extensive evidence about the Huckaby murder beyond the

evidence that Huckaby was dead and that defendant was accused of killing

him. This included evidence relat ed to the crime scene, Huckaby’s cause of

death, and the fact that defendant was a likely contributor t o the DNA found

at the scene . This evidence, according to defendant, was not relevant to

prove he had a motive to shoot Teiquon C. and was extremely prejudicial in

inviting the jury to convict him in this case because he supposedly murdered

Huckaby. We d isagree

.

“ ‘ “ ‘ In applying [Evidence Code] section 352, “prejudicial” is not

synonymous with “damaging.” ’ ” [Citation.] “ ‘ “[A]ll evidence which tends to

prove guilt is prejudicial or damaging to the defendant’s case.” ’ ” [Citation.]

The “prejudice” which section 352 seeks to avoid is that which “ ‘ “uniquely

tends to evoke an emotional bias against the defendant as an individual and

which has very little effect on the issues

. ” ’ ” ’ [Citation.] ” ( People v. Chhoun

,

supra

, 11 Cal.5th at p. 29. )

Here, t he evidence relating to the Huckaby crime scene, Huckaby’s

cause of death and the DNA analysis linking defendant to Huckaby’s death

was almost entirely technical evidence not likely to unnecessarily inflame the

jury by evoking an emotional bias . For example, th re e investigating officers

,

a forensic pathologist and a crime scene technician discussed in detail issues

such as the positioning of Huckaby’s recreational vehicle

, the likely trajectory

of the shotgun bullet as it struck the recreational vehicle

, and the path the

bullet traveled as it passed through Huckaby’s body

.

T his testimony was not merely cumulative to evidence that Huckaby

was dead and that defendant was accused of killing him. Rather, it

corroborated Teiquon C.’s statements to Officer Martinez in which Teiquon C.17

identified defendant

, his former friend, as Huckaby ’s murderer. Specifically,

Teiquon C. described defendant as shooting Huckaby, the driver of a

recreational vehicle

, through the driver

- side window while defendant was

driving a separate vehicle in which Teiquon C. was the passenger. The

witnesses’ testimony regarding the positioning of the recreational vehicle and

its driver and the trajectory of the bullet was consistent with Teiquon C.’s

st atements and , thus, was necessary for the prosecution to meet its burden of

proving by a preponderance of the evidence that defendant in fact murdered

Huckaby

. (See Alcala v. Superior Court (2008) 43 C al.4th 1205, 1224, fn. 14

[ “a jury may consider properly admissible ‘other crimes’ evidence so long as it

finds ‘by a preponderance of the evidence’ that the defendant committed

those other crimes ”] ; People v. Winkler (2020) 56 Cal.App.5th 1102, 1153

[“ Courts have also noted that ‘[i] f the connection between the uncharged

offense and the ultimate fact in dispute is not clear

, the evidence should be

excluded.’ [Citations.] This is so ‘ “ ‘[b]ecause this type of evidence can be so

damaging’ ” ’ ” ].) This is particularly so given the e vidence , in the form of

testimony and text messages

, that tended to prove that defendant and

Teiquon C. had been friends and that defendant had gone out of his way in

the past to help Teiquon C. by, among other things, giving him a place to

stay. Without the technical and physical evidence corroborating Teiquon C.’s

identification of defendant as a murdere r, the key issue of motive would have

hinged entirely on credibility. ( People v. Winkler, supra , at p. 1153 [“The

connection between an uncharged act and the charged crime cannot be clear

unless there is clarity that the defendant committed the asserted a ct

underlying the uncharged crime”].)

Moreover, the trial court properly instructed the jury to consider the

Huckaby murder evidence only in decid i ng whether defendant had a motive18

to shoot Teiquon C. and only if the prosecutor first proved by a preponderance

of the evidence that defendant in fact committed the murder

. 6 We presume

the jury followed these instructions. ( People v. Chhoun

, supra

, 11 Cal.5th at

p. 30; People v. Barnett (1998) 17 Cal.4th 1044, 1119 [no prejudicial error in

admitting motive evidence where, inter alia , “the court’s instructions

minimized any danger that the jury might rely upon [said evidence] for an

improper purpose”].)

F urther , b ecause the trial court d id not abuse its discretion under

Evidence Code section 352, defendant’s constitutional claims also fail.

( People v. Fuiava (2012) 53 Cal.4th 622, 670.) It is well established that

routine application of state evidentiary law does not, without more, impl icate

a defendant ’ s constitutional rights. ( People v. Thompson, supra

, 1 Cal.5th at

p. 1116.) D efendant presents no argument that admission of this evidence

amounted to a due process violation distinct from his state law analysis

,

which is insufficient to prove constitutional error

. ( People v. Dryden (2021)

60 Cal. App. 5th 1007, 1025 [ “The introduction of improper evidence against a

defendant does not amount to a violation of due process unless the evidence

‘is so extremely unfair that its admission violates “fundamental conceptions

of justice” ’ ” ]

. )

Finally

, e ven assuming for the sake of argument some small portion of

this evidence 7 should have been excluded

, reversal is not required unless but

6 The trial court followed CALCRIM No. 375, which states in pertinent

part: “ You may consider this [uncharged crime] evidence only if the People

have proved by a preponderance of the evidence that the defendant in fact

committed the offense .”

7 Defendant mentions an autopsy photograph of Huckaby. However,

this item does not appear to be in the record on appeal, making it impossible,

in any event, for this court to assess its prejudice.19

for its admission it is reasonably probable that defendant would have

obtained a more favorable result. ( People v. Watson (1956) 46 Cal.2d 818,

836

. ) Under this standard , we consider whether it is reasonably probable

t hat one or more jurors would have conclude d the prosecution failed to meet

its burden of proving beyond a reasonable doubt that defendant shot

Teiquon C. if this case were tried without admission of the evidence about the

Huckaby crime scene, his cause of death or the DNA a nalysis

. ( People v.

Dryden, supra, 6 0 Cal. App.5 th at p. 1025 .) W e conclude not

.

First, Teiquon C. identified defendant as the shooter to a stranger

offering him aid just moments after the incident

, when he was bleeding

profusely and in obvious pain. Teiquon C. again identified defendant as the

shooter a short time later

, at the hospital just before s urgery, when Officer

Martinez interviewed him

. And

, he consistently stood by this claim in other

police interviews a s well as at trial.

Second, even if most of the Huckaby murder evidence were excluded,

there would nonetheless remain in the record a wealth of evidence that

defendant had a motive to shoot Teiquon C. Briefly

, in a meeting with police

hours before his shooting, Teiquon C. told Officer Martinez that defendant

killed Huckaby. Char les F.

, a close ally of defendant, saw officers pick

Teiquon C. up at the moving company yard prior to this meeting and later

asked Teiquon C. why he met with the police

. Teiquon C. responded that it

related to his gang registration. While there is no evidence Charles F. told

defendant about Teiquon C.’s me e t ing with police

, the two men were in

regular contact on November 1 and 2

, 2018

.

T here was also a wealth of cell phone evidence that supported

Teiquon C.’s claim that defendant shot him and defeat ed defendant’s alibi

.

An expert testified based on cellular data from defendant’s phone that20

defendant was in the vicinity of 709 Admiral Callaghan Lane when

Teiquon C. was shot on November 1

, 2018

, and then moved away from the

area and toward home afterward

. Consistent with the cell phone evidence,

defendant’s stepdaughter testified that defendant was not at home on

November 1, 2018, between approximately 11 p.m. and midnight. Yet,

defendant told police on November 2

, 2018, that he returned home from

South San Francisco about 9:30 p.m. the previous day and never return ed to

the yard

. Moreover, while defendant made numerous calls and texts

throughout the evening of November 1

, 2018

, his phone was unusually quiet

for a bout 20 minute s around the time of the shooting.

When the police searched defendant’s car and home, they found

Teiquon C.’s cell phone as well as several wigs that corroborated Teiquon C.’s

claim that defendant was wearing a wig when he shot him

.

And lastly, during a phone call from jail with a female friend

,

defendant responded, “ [W]hat they said I did was true,” when this friend

lamented being told by an unnamed person, “ ‘I don’t know why you’re stuck

on this fool. He shot somebody with a shotgun.’ ”

During closing arguments, the prosecutor focused extensively on this

evidence of defendant’s guilt before turning

, finally, to the Huckaby murder.

And when he did so, the prosecutor reinforced the court’s instructions,

explaining the evidence could be con sidered only for the limited purpose of

“ deciding whether, one, the defendant was the person who committed the

offenses alleged in this case or two, the defendant had a motive to commit the

offenses alleged in this case. That is why that incident is perti nent and

relevant to this case. [Teiquon C.’s] knowledge of Mr. Blackwell’s

involvement in that incident .”21

The first part of the prosecutor’s statement misstated the law:

Evidence Code section 1100, subdivision (a) bars consideration of uncharged

crime evidence to conclude that if the defendant committed the prior crime,

he likely committed the charged crime. However, the jury was correctly

instructed on this law by the trial court prior to deliberations. The jury was

also instructed: “ If you believe that the attorneys’ comments on the law

conflict with my instructions, you must follow my instructions .” These

instructions alleviated any prejudice from the prosecutor’s misstatement.

Defendant counters that this was a close case, particularly because

Teiquon C.

, the primary witness to the shooting, had serious credibility

issues and that admission of the Huckaby murder evidence unfairly tipped

the scale against him

. Yet, defendant had ample opportunity, whic h he took

full advantage of, to impugn Teiquon C.’s credibility

, through rigorous cross

examination and examination of other witnesses on matters related to his

mental health, substance abuse and criminal history

. Under these

circumstances

, considering th e record as a whole

, including both the evidence

and the jury instructions, we conclude there is not a reasonable probability

that but for admission of th is evidence he would have obtained a more

favorable result. ( People v. Chhoun, supra

, 11 Cal.5th at p. 45.)

II. Exclusion of Teiquon C.’s Prior Inconsistent Statement.

At trial, after Teiquon C. testified that defendant shot him, defense

counsel sought to introduce evidence through a witness that Teiquon C. told a

fellow inmate in a prison transp ort shuttle in 2019 that he was shot because

he had been “messing with the Mexican Mafia ” and robbed “some Pisa

. ”

Teiquon C. then allegedly stated that the crazy thing was that police were

trying to pin the shooting on defendant.22

The court questioned Tei quon C. outside the jury’s presence as to

whether he previously s aid he was shot by a gang member or that his

shooting was gang

- related

. Teiquon C. replied, “No.” D efense counsel

nonetheless made an offer of proof, after which the court excluded the

evidence under Evidence Code section 352, reasoning that it “sounds like

boasting or speculation at best” and that its admission would “create[] a

substantial danger of undue prejudice, confusing the issues and misleading

the jury for w hat little probative value [the evidence] has.” The court also

reasoned that “without any specific individual as having the motive and

opportunity to commit this crime, I don’t think the threshold for a third

- party

culpability has been met as well.”

D efendant contends th is ruling was an abuse of discretion and a

violat ion of his constitutional right to present a defense.

A. Applicable Law.

As stated, a trial court’s discretionary ruling under Evidence Code

section 352 will not be disturbed on appeal abse nt an abuse of discretion.

( People v. Foster, supra

, 50 Cal.4th at pp. 1328

– 1329.) In this instance,

defendant sought admission of this evidence as a prior inconsistent statement

to impeach Teiquon C. “ ‘ “[T]he latitude section 352 allows for exclusion of

impeachment evidence in individual cases is broad. The statute empowers

courts to prevent criminal trials from degenerating into nitpicking wars of

attrition over collateral credibility issues.” [Citation.]’ [Citation.] Regarding

cons titutional limitations, we have held that ‘ “not every restriction on a

defendant’s desired method of cross

- examination is a constitutional violation.

Within the confines of the confrontation clause, the trial court retains wide

latitude in restricting cr oss

- examination that is repetitive, prejudicial,23

confusing of the issues, or of marginal relevance.” [Citation.]’ [Citation.] ”

( People v. Lewis (2001) 26 Cal.4th 334, 374

– 375 .)

B. Application of the Law to the Facts.

We begin with what should be clear : A prior statement by the victim

of, and sole eyewitness to

, the charged offenses that someone other than the

defendant committed those offenses is highly probative of key issues relating

to the defendant’s guilt and the victim’s credibility. (Evid. Code, § 780, subd.

(h) [“ the court or jury may consider in determining the credibility of a witness

any matter that has any tendency in reason to prove or disprove the

truthfulness of his testimony at the hearing, including b ut not limited to

. . . :

[¶]

. . . [¶] (h) A statement made by him that is inconsistent with any part of

his testimony at the hearing ”].) Nonetheless, t he trial court excluded

Teiquon C.’s alleged statement to a fellow inmate that a gang member , rather

t han defendant, shot him, after finding it was “boasting or speculation at

best. ” This was wrong. A section 352 analysis does not consider witness

credibility. ( People v. Cudjo (1993) 6 Cal.4th 585, 610 [“ the trial court

apparently concluded that the evidence was more prejudicial than probative

because Culver was not a credible witness. However, such doubts, however

legitimate, do not constitute ‘prejudice’ under Evidence Code section 352 ”];

People v. Chan dler (1997) 56 Cal.App.4th 703, 711 [ “Credibility of the

proffered witness is not included under [Evidence Code § 352’s admissibility]

guidelines” ] .) As the California Supreme Court explains: “Except in the[]

rare instances of demonstrable falsity, doubt s about the credibility of the in

court witness should be left for the jury’s resolution. ” ( People v. Cudjo, supra

,

at p. 608 .) Teiquon C.’s alleged statement was not demonstrabl y false, and

the trial court could have set reasonable limits on the proffer ed testimony24

and any rebuttal so that minimal time at trial would have been consumed by

it.

Moreover, because the proffered evidence was admissible as a prior

inconsistent statement that tended to impeach Teiquon C.’s trial testimony

that defendant shot h im (see Evid. Code, § 780, subd. (h)), th e court was

wrong to alternatively exclude it as i nadmissible third party culpability

evidence . Indeed , e ven assuming for the sake of argument th at third party

culpability rules appl ie d , the proffered evidence did not run afoul of them.

“ Evidence that raises a reasonable doubt as to a defendant’s guilt, including

evidence tending to show that another person committed the crime, is

relevant. But evidence that another person had a motive or opportunity to

commit the crime, without more, is irrelevant because it does not raise a

reasonable doubt about a defendant’s guilt; to be relevant, the evidence must

link this third person to the actual commission of the crime. [Citation.]

Evidence that is relevant still may be excluded if it creates a substantial

danger of prejudicing, confusing, or misleading the jury, or would consume an

undue amount of time. ( See Evid. Code, § 352.)” ( People v. Brady (2010) 50

Cal.4th 547, 558.) Here, defendant’s alleged statement

— that the “Mexican

Mafia” c a me to where he lived and tried to kill him for “robbing a Pisa”

— goes

beyond mere evidence of another person’s motive or opportunity to commit

the crime

. W hether or not credible (a question for the jury), Teiquon C.’s

alleged statement directly linked a third person (a member of the Mexican

mafia) to the actual commission of the November 1, 2018, shooting. Thus, we

conclude the t rial court twice erred in excluding th is evidence

.

Nonetheless , w e conclude that had Teiquon C.’s prior inconsistent

statement been admitted , there is no reasonable probability defendant would

have obtained a better result. ( People v. Watson, supra

, 46 Cal. 2d at p. 836 .)25

F or all the reasons discussed ante

, there was a wealth of evidence of

defendant’s guilt

, including evidence of his motive for committing his crimes,

including cell phone data; Teiquon C.’s excited utterance to a stranger just

after being shot that defendant was the shooter; and the timing of

Teiqu on C.’s meeting with the police, hours before t he sho o t ing

, during which

he identified defendant as Huckaby’s murderer

. ( Ante , pp. 3

– 9 .)

At the same time, t here was a wealth of evidence before the jury that

undermin ed Teiquon C.’s credibility, including evidence relating to his

mental health and substance abuse struggles and his extensive criminal

history. T he re was also evidence Teiquon C. told the defense investigator

that defendant shot him for threatening defendant’s wife

, rat her than , as he

maintained at trial

, in retaliation for telling police he shot Huckaby

. And,

finally, the court allowed defense counsel to question Teiquon C. regarding an

alleged conversation he had with an inmate in a holding cell in Solano

County durin g which Teiquon C. allegedly said he was so high on

methamphetamine on the night in question that he did not know who shot

him. 8 In light of what was before the jury , t he court’s exclusion of

Teiquon C.’s alleged prior inconsistent statement that someone other than

defendant shot him “did not keep the jury from learning facts from which it

could assess [Teiquon C.’s] character and credibility.” ( People v. Harris

(2005) 37 Cal.4th 310, 339.)

Accordingly, we conclude based on the record as a whole there is slight

chance Teiquon C.’s isolated statement that he was shot by a gang member,

made to a n inmate in a prison transport shuttle , would have swayed the jury

in defendant’s f

avor.

8 Teiquon C. denied making this statement.26

C. No Cumulative Error.

Lastly , given our concl usion that the trial court’s evidentiary rulings

did not constitute prejudicial error, we reject defendant’s reliance on the

c umulative e rror doctrine as grounds for reversal

. No trial is perfect

, and

here, there were few errors, and none were prejudicial

. Accordingly, this

claim fails. ( See People v. Anderson (2001) 25 Cal.4th 543, 606 [rejecting

cumulative error claim where the high court “ identified no [constitutional]

errors, and, as explained at length above, the record provides no basis for

conclud ing that any trial ruling or event defendant has challenged caused

him unfair prejudice ”] .)

III. Ameliorative Changes to Section 1170.

Defendant contends

, and the People concede, we must remand for

further proceedings to allow the trial court to apply the version of section

1170, subdivision (b) that went into effect postjudgment, on January 1 , 2022,

and has an ameliorative impact on his sentenc e

. We agree.

Senate Bill No. 567 (20 20

– 2021 Reg. Sess.) amended our determinate

sentencing law in fundamental ways. (Stats. 2021, ch. 731, § 1.3.) Relevant

here, th e bill ma d e the middle term of imprisonment the presumptive term

unless “there are circumstances in aggravation of the crime t hat justify the

imposition of a term of imprisonment exceeding the middle term, and the

facts underlying those circumstances have been stipulate d to by the

defendant, or have been found true beyond a reasonable doubt at trial by the

jury or by the judge in a court trial

. ” ( § 1170 , subd. (b)(2), added by Stats.

2021, ch. 731, § 1.3. )

On the contrary, a t the time of defendant’s May 17 , 2021, sentencing

hearing

, the trial court h a d broad discretion to select a lower, middle, or

upper term sentence. (Former § 1170, subd. (b) ; former Cal. Rules of Court,27

rules 4.420, 4.421, 4.423 .) Under this broad discretion, the trial court

sentenced defendant to 27 years to life on the attempted murder count

( § 664) . While the trial court did not explain its decision, we presume, as did

the parties, that the 27

- year term represents a tripling of the upper

, nine

year term for attempted murder under the Three Strikes law (§ § 667, subd.

(e)(2)(A)(i)

, 1170.12, subd

. (c)(2)(A)(i) )

. 9

Under well

- established law, th e amended version of section 1170,

subdivision (b) applies retroactively in this case. In re Estrada (1965) 63

Cal.2d 740, 745, held that an “amendatory act imposing the lighter

punishment can be applied constitutionally to acts committed before its

passage provided the judgment convicting the defendant of the act is not

final.” ( Accord

, People v. Tran (2022) 13 Cal.5th 1169, 1207 ; People v.

Esquivel (2021) 11 Cal.5th 671, 675.) Here, defendant’s judgment is not yet

final , as his appeal remains pending and the time for petitioning for writ of

certiorari in the United States Supreme Court has not passed. ( People v.

Lopez (2019) 42 Cal.App.5th 337, 341

– 342 [“For the purpose of det ermining

the retroactive application of an amendment to a criminal statute, the

finality of a judgment is extended until the time has passed for petitioning for

a writ of certiorari in the United States Supreme Court ”] , citing People v.

Vieira (2005) 35 Ca l.4 th 264, 305

– 306 .)

Accordingly, we remand for further proceedings to permit the trial

court to apply the amendatory version of section 1170, subdivision (b)(2) in

determin ing defendant’s sentence on count 1

.

9 A ttempted murd er “shall be punished by imprisonment in the state

prison for five, seven, or nine years.” ( § 664, subd. (a).)28

IV. Presentence Conduct Credits.

Last ly , defendan t contends the trial court erred in declining to award

him conduct credit for his presentence time served in custody. Again, the

People correctly concede this is so.

“I n general, a defendant receives what are commonly known as conduct

credits toward his term of imprisonment for good behavior and willingness to

work during time served prior to commencement of sentence. ( §§ 2900.5,

4019; [citation] .) ” ( People v. Thomas ( 1999) 21 Cal.4th 1122, 1125 .) S ection

2900.5, subdivision (a) provides in relevant part that “[i]n all felony and

misdemeanor convictions,

. . . when the defendant has been in custody

. . . ,

all days of custody

. . . shall be credited upon his or her term of

imprisonment

. . . . ” ( See Cal. Code Regs., tit. 15, § 3371.1, subd. (c)(1)(A).)

Section 2933.1 creates an exception to th is general rule for a defendant

, s uch

as ours, convicted of a violent felony within the m eaning of the Three Strikes

law

. Under this provision , the award of presentence conduct credits to a

Three Strikes law defendant whose current conviction is for a violent felony

listed in section 667.5

, subdivision (c) “shall not exceed 15 percent of the

actual period of confinement.” ( § 2933.1, subds. (a), (c).)

At sentencing, the trial court awarded defendant 926 days of

presentence custody credit but no days of presentence conduct credit . The

trial court reasoned that section 667, subdivision (c)(5) prohibited

presentence conduct credits for Three Strikes law offenders. The trial court

was mistaken. “ As the Supreme Court explained in People v. Buckhalter

,

‘[w]e recently held that restrictions on the rights of Three Strikes prisone rs to

earn term

- shortening credits do not apply to confinement in a local facility

prior to sentencing. We emphasized that when limiting the credit rights of

offenders sentenced thereunder, the Three Strikes law (§§ 667, subd. (c)(5),29

1170.12, subd. (a)(5 )) expressly refers only to “ post sentence

. . . credits,” i.e.,

those “ ‘awarded pursuant to [a]rticle 2.5’ ” [citation], and “does not address

presentence

. . . credits ” for Three Strikes defendants.’ ( People v. Buckhalter

(2001) 26 Cal.4th 20, 32 [citations]. ) ” ( People v. Jones (2023) 88 Cal.App.5th

818

, 822

– 823 .) Thus, the only restriction on defendant’s accumulation of

credits is the 15

- percent limitation under section 2933.1 because he was

convicted of a violent felony within the meaning of section 667.5,

subdivision (c)

.

Accordingly, on remand, defendant is entitled to 139 days of

presentence conduct credit , represent ing 15 percent of the 928 days that he

actual ly served in custody

. 10

DISPOSITION

The judgment is reversed, and the matter is remanded for further

proceedings so that the trial court can apply the amended version of section

1170, subdivision (b)

, and recal culate defendant ’ s presentence credits

. In all

other regards

, the judgment is affirmed.

10 The People point out that defendant was in presentence custody 928

days rather than 926 days, the number used by the trial court, since he was

arrested on November 2 , 2018

, and sentenced on May 17 , 2021.30 _________________________ Jackson, P. J.

WE CONCUR:

_________________________ Simons, J.

_________________________ Chou, J.

A162883/ People v. Costello Blackwell