1

Filed 7/23/24 P. v. Watson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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.

WILL ANTHONY WATSON,

Defendant and Appellant.

 A165995

 (Alameda County

 Super. Ct. No. 17CR003246)

Defendant Will Anthony Watson was convicted by jury of second degree 

murder of Gregory Ignacio, Jr., and sentenced to 40 years to life. On appeal, 

defendant contends the trial court: (1) erred in admitting witness 

identifications into evidence; (2) erred in preventing impeachment and crossexamination of a witness; (3) abused its discretion in not striking a firearm 

enhancement; and (4) violated defendant’s constitutional and statutory rights 

to be present throughout his sentencing hearing. We affirm.

BACKGROUND

The People’s Case

Prosecution witnesses testified to the following events: In September 

2016, S.H. met her cousin T.L. and her friend T.J. in Berkeley to “hang out 
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and go[] to purchase some weed.”

1 T.J. arrived with her friend Gregory 

Ignacio, Jr., who S.H. and T.L. knew only by the nickname “G”. 

T.J. eventually called Jacob Felipe,

2 from whom she and T.L. had 

previously bought marijuana. The three girls and Ignacio walked about four 

or five blocks to meet Felipe to make the purchase. It was late afternoon or 

early evening, but still light.

The group met Felipe, who was alone, near some apartment buildings. 

They spent no more than five minutes buying the marijuana. 

The three girls started walking away, but Ignacio stayed and spoke

briefly with Felipe. To T.J., it looked as though Ignacio and Felipe were 

“chatting.” T.L. described their exchange as a “regular conversation, not 

hostile.” S.H. did not remember any fights, arguments, or hostilities between 

Ignacio and Felipe. 

Ignacio then rejoined the trio, and the four continued walking back 

toward where they had started. Shortly thereafter, a man, later identified as 

defendant, approached them from behind—coming from where they had 

purchased the marijuana. As he approached, he spoke to Ignacio. T.J. heard 

him say something like, “ ‘This is Fairview’ ” and “ ‘Hey, you got a problem 

with Jake?’ ” She heard Ignacio respond, “ ‘Who are you?’ ” T.L. initially 

“heard a little bit of yelling. It was inaudible at that time.” As the man got 

closer, she heard him twice yell at Ignacio, “ ‘Do you have a problem with J?’ ” 

She described the man as “[a]ngry, hostile” and “three, four feet away” from 

them. S.H. could not make out what the man was saying but she could tell,

1 At the time, S.H., T.J., and T.L. were teenagers, and T.J. and T.L. 

were minors. We therefore refer to these individuals by their initials. 

2 Felipe is referred to as Jake or “J” throughout the reporter’s 

transcript. We refer to him by his last name.
3

“by the actions and the hands,” the interaction “was very hostile.” Ignacio 

appeared shocked. 

As the girls turned to continue walking, they saw the man “grab his 

pocket” or reach for “his waistband,” “near where like your pocket on your 

pants would be.” T.J. saw “two red flashes.” T.L. saw the man grab a 

handgun and point it at Ignacio. She then heard gunshots. S.H. heard “a 

pop, a loud pop,” which she recognized as gunshots. All three ran.

When they looked back at Ignacio, he was lying on the ground, 

bleeding. All three spoke with a 911 operator.

3 T.J. described the shooter as 

having a “fairly white” “skin tone,” a “sharp, a pointy nose,” and wearing a 

“hoodie and a cap.” She recalled seeing a curl of hair “like swooped under 

around his ear” and thought his hair length was “a little past his ears,” “quite 

a bit shorter” than Felipe’s. T.L. said the man was White but then said he 

might be “Mexican or a mix,” based on his skin tone. S.H. described the 

shooter as being “Latino or White,” having “a very pointy nose,” and wearing 

a hat. 

A few months after the shooting, Berkeley Police arrested T.J. for 

“conspiracy” to commit murder, based on their mistaken belief she had placed 

a call to Felipe after the killing. During the almost 13 hours she was held at 

the police station, Berkeley Police Sergeant Jesse Grant conducted two 

interviews. During the first, T.J. repeatedly said Felipe was not the shooter. 

After the interview, she was placed in a holding cell. During the second 

interview, after Grant explained what “conspiracy to commit murder means,” 

T.J. identified Felipe, testifying at trial, “At that point, after thinking, ‘Wow, 

3 T.J and S.H. made separate 911 calls which were played for the 

jury. T.L. did not call 911 herself but spoke with an operator, and her 

portion of the call was also played for the jury. 
4

this is what it is’—I felt the officers presented me with so many pictures of 

Jake after many things I told them, I just gave in. ‘Since you guys are telling 

me it’s this person, it is this person. I want to go home.’ ” When asked if she 

identified Felipe because he was the shooter, she testified, “No,” but “because 

I wanted to go home. And since that is what the officers had told me, it was 

like I was forced to believe it.” T.J. also testified, however, that she still 

believed Felipe was involved, but he was not the shooter. 

About four months after the shooting, in January 2017, the Berkeley 

Police Department showed T.L. and S.H. photo lineups. Although 

defendant’s photograph was included in both, neither identified anyone in the 

lineup as the shooter. T.L. identified Felipe as the man they “bought weed 

from” but stated he was not the shooter. T.J. was not presented with a photo 

lineup. 

The following month, T.J., T.L., and S.H. were taken to an in-person 

lineup.4 All three sat in the viewing room; two were seated in the front row

with an empty chair between them, and one was seated in the second row. 

They were each given a sheet with an admonition and boxes corresponding to 

the “participants” positions in the lineup and instructed to put an “X” for a 

positive identification and a “?” if they suspected the person was the shooter 

but were not sure. 

T.J. and T.L. put question marks on box three, which corresponded 

with defendant’s lineup position. T.J. explained she put a question mark 

because she was “playing it safe.” Since she “didn’t get a good look at this 

person’s face, I only had a view from the side, going based off emotions, 

feelings, I wasn’t going to put an ‘X’ there saying I’m confident that this is the 

4 A video of the lineup was played for the jury but is not included in 

the record on appeal. 
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person when I wasn’t so confident.” She also stated defendant’s “voice 

sounded familiar” but “much more proper.” She recognized defendant’s nose 

as being “pointy the way I remembered it” and stated his hair and skin tone 

were similar to the person who confronted Ignacio. T.L. explained she put a 

question mark because she was “not sure if that was the actual person who 

was involved,” but told officers defendant’s hair, nose, build, and skin tone 

matched the shooter’s. She stated his “hair and the nose,” which she 

described as “narrow and pointy” matched the shooter’s. She also noted his 

skin tone and voice were reasons she identified him. S.H. put an “X” on the 

box that corresponded with defendant’s position and a “?” on a filler’s box. 

She explained she put a “?” on box one because she “must have been not sure 

when I seen that person or they must look . . . similar to the other person,” 

and she put an “X” next to defendant’s number because of the “dark hat with 

the hair,” he was tall, and “his nose is pointy.” When asked, if by marking 

box three, she was “indicating that this person looked most like the person 

[she] saw walk up to G” on the street? She responded, “Yeah.” 

Felipe testified, under a grant of immunity, that he knew the victim as 

“Lil G.” They had gone to high school together and lived a block away from 

each other. Although initially close, the two had had a falling out. Between 

the falling out and the murder, they would occasionally see each other in the 

neighborhood and “just star[e]” at each other. Except on one occasion, the 

two never got physical. However, Felipe thought Ignacio was “trying to 

confront” him after the sale. Ignacio had approached Felipe at the side gate 

to his apartment building and “kind of hollered at me, like, ‘Hey, yo, check it 

out. What’s up?’ ” Ignacio then complained about Felipe’s friends “meanmugging him” or “staring hard” at him. Felipe had responded something 

like, “ ‘That’s not me. I’m not your man’ ” and “ ‘Hey, I don’t want any 
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problems. . . . Just leave me alone.’ ” At that point, the conversation ended 

and Felipe went into his apartment. He saw Ignacio walk back to T.J. and 

S.H., who were waiting on the corner, and the group started walking back up 

the street. 

Felipe also saw defendant, who he knew from prior marijuana sales. 

Defendant had gotten in touch with Felipe before T.J. contacted him, and

Felipe had let defendant into the gate of the apartment complex. After T.J. 

called, Felipe told defendant he was going to “[s]erve somebody,” meaning sell 

them marijuana, but he would be back. When he returned, Felipe told 

defendant, “ ‘My bad. It took a little longer,’ ” stating “some kid”—referring 

to Ignacio—“got in my face and he was talking crap or something, something 

like that.” 

Defendant then looked at Felipe “funny” and began walking away. 

When Felipe asked where he was going, defendant asked where Ignacio was. 

Felipe responded, “ ‘Fuck you.’ Like, ‘Whatchu doin’? you know. I was telling 

him, ‘Leave it alone. It’s nothin’,’ you know. Told him to be cool.” Defendant 

said, “ ‘Oh, dude, don’t worry man. I’m just about to go and check him or 

something,’ ” which Felipe took to mean defendant was going to go 

“[c]onfront” Ignacio. He later told police that after he told defendant to “leave 

it alone,” defendant said, “ ‘Nah, dude, nah. I wanna get on somebody,’ ” 

which Felipe took to mean to go and “assault somebody.” Felipe followed 

defendant to the sidewalk, saying, “ ‘Just be cool. What are you doing?’ ” As 

defendant continued walking up the street, Felipe turned around and went 

back to his girlfriend’s apartment. He later heard police sirens. 

A few months before the murder, Felipe had seen defendant with a 

firearm. Defendant said he owned it “under his name” and possessed it 

legally. Felipe described the gun as a .45-caliber, semi-automatic with a 
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“chrome slide” or a “shiny silver type thing” that “runs like along the barrel” 

of the gun. 

Berkeley Police Patrol Sergeant Scott Castle and his partner arrived on 

the scene of the shooting first and found Ignacio “down on his back in the 

street.” Ignacio was unresponsive, and Castle began to render emergency 

aid. While Castle was applying a tourniquet around Ignacio’s leg, 

paramedics arrived and took over emergency aid. Berkeley Police Officer 

Kevin Neff followed the ambulance to the hospital. Ten minutes after 

arrival, hospital staff informed him Ignacio had died. 

The parties stipulated to the following: Sergeant Grant obtained a 

search warrant for defendant’s residence. During execution of the warrant, 

defendant was arrested. During the search, officers seized defendant’s cell 

phone. Grant obtained a subsequent warrant to search defendant’s cell 

phone records and data. That data was then turned over to Berkeley Police 

Sergeant Andres Bejarano for analysis. 

Bejarano testified as an “expert in call detail records” and use of 

“CellHawk,” a program used to plot a “Google-type map” of the cell towers 

used during a phone call. Before and after the shooting, defendant made 

phone calls which registered on cell phone towers in the area of the shooting. 

The first call, made at 6:41 p.m., registered at a cell phone tower that was 

“approximately .29 miles or about 1550 feet” away from the location of the 

shooting. The second call, made at 8:03 p.m., registered at a cell phone tower 

that was approximately “three-quarters of a mile or .78 miles” from the 

location of the shooting. 

Berkeley Police Department crime scene technician Anna Bolla arrived 

at the scene as paramedics were rendering aid to Ignacio. Near Ignacio’s 

clothing and shoes, which had been removed by paramedics, Bolla 
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documented “two suspected .45 caliber shell casings.” Both shell casings bore 

the same “head stamp,” which read “.45 Auto Federal.”

Cary Wong, “an expert in the examination, comparison and 

identification of firearms, ammunition, fired ammunition, as well as the 

functioning of semi-automatic handguns,” analyzed the two .45-caliber 

cartridge cases. He determined both had been fired from the same Glock 

firearm. 

The parties stipulated that Sergeant Grant, during the search of 

defendant’s residence, located a “green accordion folder,” which “contained a 

receipt for a Glock Model 21 .45 caliber semi-automatic handgun” showing 

defendant’s name, an address, and the purchase date. Grant “also found a 

dealer’s record of sale of firearm or DROS paperwork for a Glock Model 21 .45 

caliber semi-automatic handgun with serial number XNU275,” and the 

paperwork showed defendant’s name, and the same address and purchase 

date as the receipt. The paperwork listed the color of the firearm as black. 

Berkeley Police Officer Paul Jason Tillberg testified Glock 21 

handguns, which come “in a black finish,” are very popular and are “very 

easily” modified. For example, “Cerakote is a ceramic-based paint,” used 

“primarily for firearms because it’s extremely durable” and can be used to 

alter the color of the slide so that it can be “rather shiny” and have a 

“metallic appearance.” 

Senior DNA Analyst Angela Butler testified as “an expert in body fluid 

identification, as well as the analysis, comparison and interpretation of DNA 

and DNA mixtures, as well as the use of eDNA Bullet probabilistic 

genotyping software as it relates to the analysis, comparison and 

interpretation of DNA and DNA mixtures.” After explaining her testing and 
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examination procedures, Butler opined defendant “could be included as a 

possible contributor to the DNA results obtained from both casings.” 

With respect to the first casing, “DNA evidence was at least 39,000 

times more likely if it originated from [defendant] and one unknown 

unrelated contributor than if it originated from two unknown unrelated 

contributors.” In other words, the partial profile “would be 39,000 times more 

likely to occur if [defendant] was included as a contributor to that sample.” 

This figure indicated “very strong support for the inclusion of [defendant] in 

this mixture.” With respect to the second casing, which contained a larger 

sample, “the DNA evidence is at least 259 million times more likely if it 

originated from [defendant] and one unknown unrelated person than if it 

originated from two unknown unrelated individuals.” This figure indicated 

“extremely strong support” for the inclusion of defendant in the mixture, with 

“extremely strong support” being “the highest you can get.”

Defense Case

The defense focused on undermining the reliability of the lineup 

identifications and challenging the reliability of T.J.’s statements during the 

two interviews. 

Defendant elicited testimony that Sergeant Grant had assembled the 

photographs used in the photo lineup from the DMV data base, but another 

officer unfamiliar with the case showed the lineups to S.H. and T.L. All six 

photos were of White males, all “appeared to be young,” and all had dark 

hair. The DMV photograph of defendant “look[ed] fairly different than from 

how he looked” in 2017. The photo had been taken in 2013, three years 

before the murder and three and half years before the lineup, but it was “the 

only photo” of defendant Grant was able to locate. Neither S.H. nor T.L. 

identified anyone in the photo lineups as the shooter. 
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 With respect to the physical lineup, Grant had no part in selecting the 

“fillers.” Instead, the Alameda County Sheriff’s Department chose the fillers 

from the inmate jail population. Each participant wore blue Santa Rita Jail 

clothing and a plain black baseball cap, and each was required to walk 

forward, one at a time, and say, “ ‘This is Fairview’ ” and “ ‘You got a 

problem with J?’ ” During the lineup, the three girls were in the same room. 

T.L. and T.J. both put question marks next to No. 3 (defendant). 

Dr. Geoffrey Loftus, a psychologist, testified as an expert “in memory 

and factors relating to eyewitness identification.” He explained the concept of 

double viewing, where a witness is shown one lineup containing the suspect 

and then sees a second lineup in which the only person common to the two 

lineups is the suspect. The impact being that when a witness looks at the 

second lineup the suspect “may look familiar to the witness, not because he 

was the person that the witness saw commit the crime, but, rather, he was a 

person that the witness saw during the first lineup.” 

As for the interrogations of T.J., Grant said that during the second 

interview, she “couldn’t think of anyone else who could be out there and does 

mention Jacob Felipe.” And it was not until the second interview that she 

said the shooter was wearing a baseball cap with a “B” on it. 

DISCUSSION

In-Person Lineup 

Prior to the preliminary hearing, defendant moved to exclude “witness 

identifications of defendant at a pretrial physical lineup and in court.” 

Defendant claimed the lineup was unduly suggestive and therefore all 

identifications based thereon had to be excluded, including “any in-court 

identifications.” After the hearing, in which the court heard from the 
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witnesses and watched the video of the lineup, the court denied the motion, 

ruling the lineup was not “impermissibly suggestive.” 

After being held to answer, defendant renewed his motion to exclude all 

identifications as stemming from “unduly suggestive procedures.” The first of 

these, according to defendant, was putting his DMV photo in the photo lineup

“[w]ithout ever providing a description of [defendant] or mentioning him.” 

The second was he was the only participant that appeared in both the 

photographic and the in-person lineups. The third was using fillers in the 

physical lineup who assertedly did not “match the description provided by the 

witnesses.”

The court again ruled the lineup was not suggestive. 

The test to determine whether a defendant’s right to due process is 

violated by the admission of identification evidence is two-fold. “[W]e 

consider ‘ “(1) whether the identification procedure was unduly suggestive

and unnecessary, and, if so, (2) whether the identification itself was 

nevertheless reliable under the totality of the circumstances.” ’ ” (People v. 

Clark (2016) 63 Cal.4th 522, 556–557; People v. Wilson (2021) 11 Cal.5th 259, 

283 (Wilson).)

To be unduly suggestive, the challenged “procedure must ‘ “give rise to 

a very substantial likelihood of irreparable misidentification.” ’ [Citations.] 

It is not enough that the procedure ‘may have in some respects fallen short of 

ideal.’ ” (Sexton v. Beaudreaux (2018) 585 U.S. 961, 965–966; Wilson, supra, 

11 Cal.5th at p. 283.) In evaluating the suggestiveness of a lineup, “we 

consider ‘whether anything caused defendant to “stand out” from the others 

in a way that would suggest the witness should select him.’ ” (Wilson, at 

p. 284.) If “ ‘we find that a challenged procedure is not impermissibly 
12

suggestive, our inquiry into the due process claim ends.’ ” (People v. Ochoa 

(1998) 19 Cal.4th 353, 412 (Ochoa).)

Even “[i]f we determine the procedure was suggestive, no due process 

violation arises if ‘ “ ‘the identification itself was nevertheless reliable under 

the totality of the circumstances.’ ” ’ [Citations.] In assessing the totality of 

the circumstances, we consider ‘ “such factors as the opportunity of the 

witness to view the suspect at the time of the offense, the witness’s degree of 

attention at the time of the offense, the accuracy of his or her prior 

description of the suspect, the level of certainty demonstrated at the time of 

the identification, and the lapse of time between the offense and the 

identification.” [Citations.] “Against these factors is to be weighed the 

corrupting effect of the suggestive identification itself.” ’ ” (Wilson, supra, 

11 Cal.5th at p. 283.)5

Suggestiveness

Despite the well-established framework for resolving complaints about 

lineup identifications, defendant made no argument in his opening brief that 

the lineup procedures were impermissibly suggestive. Rather, he focused

5 “A defendant’s claim that an identification procedure was unduly 

suggestive is a ‘mixed question of law and fact.’ [Citations.] This standard 

applies because ‘the facts are established, the law is undisputed, and the 

issue’ we must resolve ‘is whether the law as applied to the established 

facts is violated.’ [Citation.] We review the so-called ‘historical facts,’ 

those factual determinations that underpinned the trial court’s conclusion 

that the identification was or was not suggestive, ‘under a deferential 

standard.’ [Citation.] This standard acknowledges that the trial court 

may have made ‘credibility determinations,’ that ‘contribute[d] to deciding 

the facts of what had already happened, [but] were not dispositive of the 

inquiry because the trial court did not have a “first-person vantage” ’ to 

whatever ‘facts occurred outside of court.’ ” (Wilson, supra, 11 Cal.5th at 

p. 283.)
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solely on whether the totality of the circumstances nevertheless made the 

identifications reliable—the second part of the analysis, which comes into 

play only if it is first determined the lineup is unduly suggestive. In short, as 

the Attorney General points out, defendant failed to establish the essential 

predicate for a viable challenge to a lineup identification. (See Ochoa, supra, 

19 Cal.4th at p. 413 [“for a witness identification procedure to violate the due 

process clause, the state must, at the threshold, improperly suggest 

something to the witness—i.e., it must, wittingly or unwittingly, initiate an 

unduly suggestive procedure”].) 

Not until his closing brief does defendant address the issue of 

suggestiveness. However, “[i]t is axiomatic that arguments made for the first 

time in a reply brief will not be entertained because of the unfairness to the 

other party” and are waived. (People v. Tully (2012) 54 Cal.4th 952, 1075; see 

also Mateel Environmental Justice Foundation v. Office of Environmental 

Health Hazard Assessment (2018) 24 Cal.App.5th 220, 241 [“Although, for 

good cause, we occasionally may exercise our discretion to consider issues 

first raised in a reply brief [citation], ‘[m]ore often, however, issues not 

properly addressed in the opening brief will be disregarded on appeal.’ ”].)

Even if we were to overlook defendant’s waiver, there is another 

threshold difficulty with his belated argument that the in-person lineup was 

unduly suggestive. Although defendant mentions the video of the lineup, it is 

not included in the record on appeal, and in his reply brief, defendant cites to 

still photographs made from frames of the video and which he attached to his 

motion to exclude. These photographs are far from clear, and while they 

show some physical attributes of the participants—such as height—they do 

not show or allow comparison of most of the detailed attributes about which 

defendant complains. In short, defendant has not provided a record that 
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allows us to assess the merits of his claim that the lineup was unduly 

suggestive. (See People v. Garcia (2018) 29 Cal.App.5th 864, 871 [it is 

appellant’s burden to provide a record allowing review and demonstrating 

error].)

In any case, given the record defendant has provided, he has not

demonstrated that the “physical buildup and appearances of the fillers were 

so distinctively different from [him], as to make [him] stand out” as he claims 

in his closing brief. All of the participants were wearing the same jail 

clothing with a black baseball cap facing forward. Except for one filler, the

participants were all of a similar age, between 23 and 27 years old. Three 

were “husky” and three were “thin.” They were all White and ranged in 

height from 5’5” to 6’0”. Three of the participants, including defendant, were 

six feet tall. Even assuming, as defendant claims, two fillers had visible 

tattoos—which we cannot see from the photos—that would not have made 

defendant stand out. Witnesses described the shooter as wearing long 

sleeves, so they could not have seen whether there were tattoos on the 

shooter’s arms, as defendant claims with respect to one of the tattooed fillers. 

All of the participants, including defendant, had dark brown hair and 

“variations of facial hair.” Three had long hair and three had short hair.

Indeed, the only feature defendant claims was not shared by at least one 

other participant and was unique to him, is his “pointy” nose. However, the 

still photographs on which defendant relies do not clearly show this to be the 

case. In fact, based on our own review of the photographs, it appears at least 

two other participants also have a pointy nose. 

In sum, while the participants were not identical to defendant, nothing 

about them made defendant “stand out.” (See Wilson, supra, 11 Cal.5th at 

pp. 284–285 [lineup not suggestive because although “[a]ll of the men in 
15

defendant’s six-pack were distinct in some respect from one another, with 

varying hairstyles and clothing,” nothing “ ‘in the lineup suggested that the 

witness should not select defendant’ ”].) 

Given that the lineup was not unduly suggestive, we need not address

the second prong of the analysis—reliability. (See People v. Virgil (2011) 

51 Cal.4th 1210, 1256 (Virgil) [“because we find that the challenged 

procedure was not unduly suggestive, our inquiry into the due process claim 

ends”]; People v. Cook (2007) 40 Cal.4th 1334, 1355 [having failed to show the 

various identification procedures were unduly suggestive, we need not 

address any argument the identifications were nonetheless reliable under the 

totality of the circumstances].) However, defendant’s challenge also fails 

under that prong, as well.

Reliability

“In assessing the totality of the circumstances, we consider ‘ “such 

factors as the opportunity of the witness to view the suspect at the time of the 

offense, the witness’s degree of attention at the time of the offense, the 

accuracy of his or her prior description of the suspect, the level of certainty 

demonstrated at the time of the identification, and the lapse of time between 

the offense and the identification.” [Citations.] “Against these factors is to be 

weighed the corrupting effect of the suggestive identification itself.” ’ ” 

(Wilson, supra, 11 Cal.5th at p. 283.)

Defendant asserts the witnesses did not have a good opportunity to 

view the shooter, pointing to T.J., T.L., and S.H.’s testimony they only saw 

the shooter “for a very short time, ‘it happened kind of fast,’ ‘maybe about 

almost 60 seconds,’ ‘a couple of seconds,’ ‘quick second viewing his face.’ ” He 

also points to T.J.’s testimony to police that she “ ‘did not see his face at all,’ ”

T.L.’s testimony she “barely” saw the shooter’s face, and S.H.’s testimony that 
16

she “ ‘didn’t really get a glimpse of the face.’ ” However, while the young 

women may have only briefly viewed the shooter’s face, they all did so at very 

close range and while it was still light outside. T.L. testified the shooter was 

“about three, four feet away.” S.H. said, “[w]hen he was approaching” the 

shooter was “very close.” He was “like a few feet away,” “We could touch each 

other. It was pretty close.” Moreover, they all heard the shooter’s voice and 

were able to compare the voices of the lineup participants, each of whom 

repeated what the witnesses had heard the shooter say.

Defendant next points out T.J. “was too busy paying attention to what 

[the shooter] was reaching for” and afterwards told police, “ ‘the incident 

happened so fast that I don’t think I could identify the male.’ ” Similarly, 

T.L. stated after “barely” seeing the shooter’s face, her attention turned to the 

firearm. And after S.H. saw the shooter, she turned and ran, was scared, and 

her attention was on the shooter’s pocket. Indeed, all three witnesses said 

they ran after hearing the gunshots. However, they ran only a very short

distance, they remained at the scene, and they were able to provide 

descriptions of the shooter to the 911 operator and later to the police.

Further, T.L. later confirmed she did, in fact, see the shooter’s face. And 

after the lineup, she told police, “Everything physical about No. 3 looks like 

what I described.” 

Defendant further contends “discrepancies in the accuracy of all the 

witnesses’ descriptions” weigh “in favor of finding the identification procedure 

unreliable.” He points to T.J.’s police interrogation where she identified the 

shooter as Mexican, stated she only saw the side of the shooter’s face and that 

he had curly hair, and identified Felipe as the shooter; T.L.’s statement to the 

police that the shooter was Hispanic and testimony at the preliminary 

hearing that she “hardly” saw the shooter’s face and did not notice anything 
17

distinctive about the shooter’s face; and S.H.’s statement to the 911 operator 

that she was not necessarily able to see the shooter and her later description 

to police that the shooter was “Latino” and five feet seven inches tall, 

“whereas the appellant is over 6 feet tall.” 

However, as we have recited, all the witnesses described the shooter as 

having fair skin, as White and maybe Hispanic, and as being fairly tall or 

taller than Felipe. They also all described him as having a pointy nose and 

as having hair reaching or touching his ears. These consistencies in the 

witnesses’ observations are sufficient to meet the reliability prong. (See

People v. Romero (2008) 44 Cal.4th 386, 400 [witnesses’ identification reliable 

where both described suspect as having a ponytail].) Thus, any 

inconsistencies in the witness’s descriptions were “matters affecting the 

weight of [the] witnesses’ testimony, not its admissibility” and were properly 

left to the jury. (Virgil, supra, 51 Cal.4th at p. 1256.) 

Defendant next points out neither T.L. nor S.H. identified defendant in 

the photo lineup, T.J. and T.L. placed question marks next to defendant’s 

number at the in-person lineup, and although S.H. put an “X” next to 

defendant’s number in the lineup, she also put a “?” next to participant No. 1. 

However, the witnesses’ lack of absolute certainty did not render their

identifications unreliable, requiring exclusion of the evidence.

The officer admonitions immediately prior to the witnesses viewing the 

lineup—that the shooter might not be present in the lineup and they need not 

identify anyone—and the witnesses’ confirmation that they understood these 

admonitions, also support the reliability of the identifications. (People v. 

Cunningham (2001) 25 Cal.4th 926, 990 [no “ ‘substantial likelihood of 

irreparable misidentification’ ” during photographic lineup where the witness 

“ ‘was instructed that he was not to assume the person who committed the 
18

crime was pictured therein, that it was equally important to exonerate the 

innocent, and that he had no obligation to identify anyone’ ”].) 

Defendant also had ample opportunity to, and did, cross-examine the 

witnesses about their identifications. This significantly reduced the 

possibility of any “ ‘irreparable misidentification.’ ” (Manson v. Brathwaite 

(1977) 432 U.S. 98, 116; see People v. Holmes, McClain and Newborn (2022) 

12 Cal.5th 719, 770 [identification was reliable where “[t]he defense was able 

to thoroughly cross-examine [the witness] and delve into factors bearing on 

reliability of his identifications”]; People v. Alexander (2010) 49 Cal.4th 846, 

903 [no due process violation where the “circumstances of the identification 

were disclosed to the defense, they were the subject of thorough crossexamination, and the jury was able to evaluate the reliability [of the 

witness’s identification]”].)

Defendant lastly complains that the witnesses’ limited views of the 

shooter’s face and the fact four months passed between the crime and inperson lineup, rendered the identifications unreliable, citing to Martin v. 

Indiana (1977) 438 F.Supp. 234, 237. In Martin, the court held the passage 

of approximately four months between the crime and the confrontation was a 

“substantial amount of time,” and, coupled with the “short observation at the 

scene of the crime,” the “likelihood of misidentification becomes less a 

possibility and more a probability.” (Martin, supra, at p. 237.) However, 

numerous other courts have held such time periods are not so substantial as 

to make an identification unreliable. (United States v. Rivera-Rivera (2009) 

555 F.3d 277, 284–285 [“six-month span here is de minimis”]; United States v. 

Henderson (2003) 320 F.3d 92 [two and one-half years gap between in-court 

identification and crime permissible “given strength of the other factors”]; 

United States v. Flores-Rivera (1995) 56 F.3d 319, 331 [seven-year gap 
19

between crime and identification permissible where “other reliability criteria 

were sufficiently persuasive”].) All of these cases ultimately turn on their 

unique constellation of facts. The totality of the record here simply does not 

support a conclusion that the witnesses’ identifications were unreliable. 

Finally, even overlooking the waiver and record issues, and even 

assuming the physical lineup was unduly suggestive and under the totality of 

circumstances the identification was unreliable, any error was harmless. 

(Chapman v. California (1967) 386 U.S. 18 (Chapman); People v. Chavez 

(2018) 22 Cal.App.5th 663, 675 [“If a defendant’s federal constitutional right 

to due process is violated” because an identification procedure was unduly 

suggestive, “reversal of the defendant’s conviction is required unless the 

People show that error was harmless beyond a reasonable doubt.”].) 

Defendant matched descriptions given by the witnesses to 911 operators and 

the police before the lineups, i.e., a White or Latino male with fair or lightcolored skin, dark longish hair, a pointy nose, and tall or taller than Felipe. 

Felipe’s testimony also placed defendant at the scene at the time of the 

murder and confirmed there was a shooting. The murder weapon, a .45-

caliber Glock handgun, was the same type of gun registered in defendant’s

name. The registered gun matched Felipe’s description of the gun he knew 

defendant possessed. Expert testimony established that DNA evidence 

indicated it a “very strong” and “extremely” strong likelihood defendant was a 

contributor to the DNA on the bullets found at the scene of the crime. Cell 

phone data also placed defendant in the area at the time. In short, the 

evidence supporting defendant’s convictions was overwhelming. (See People 

v. Sandoval (1977) 70 Cal.App.3d 73, 86 [error in admitting “tainted 

identification” harmless in light of “ample untainted, highly probative 

evidence linking defendant to the [crimes]”].) 
20

Witness Impeachment

During motions in limine, the prosecutor moved to introduce evidence 

of defendant’s “arrest and possession of firearms with silencers and extended 

magazines, as well as a violation of court ordered bail terms, as impeachment 

evidence.” During a search of defendant’s cabin, which was located outside 

the area set forth in defendant’s bail terms, officers found a .40-caliber Glock 

27 firearm and a 9mm Glock 17 firearm, both of which were loaded with 

chambered rounds. Additionally, the Glock 17 “had an illegal ‘SilencerCo’ 

silencer attached to it,” and officers located “multiple extended magazines in 

a backpack next to the bed.” The prosecution anticipated defendant would 

“mount a defense of mistaken identity and third-party culpability,” and as 

such sought admission of the evidence for impeachment because it involves 

“moral turpitude [and] suggests a willingness to lie.” Defense counsel 

objected that the evidence was highly prejudicial, irrelevant to the issues in 

the case, and it was being introduced “merely to smear my client’s character.” 

The court granted the motion “for impeachment purposes only, but 

there’s going to have to be a reason for this impeachment. I think that it is 

probative, more so than prejudicial, the fact that he is found in a home with 

some weapons. [¶] So . . . if your client testifies, I will allow it in as 

impeachment evidence, but I also need to hear the nature of his testimony 

first. Okay? So I am granting it now, but we can review this request at a 

more appropriate time.” 

The prosecutor also sought to exclude evidence of Felipe’s prior bad acts 

and criminal history and specifically his arrest while the murder 

investigation was underway, where he was found to have “a .380 caliber 

revolver in his waistband.” Felipe told the police he “started carrying” the 

gun because he and a friend were being blamed for the murder, and Felipe 
21

“was afraid for his safety,” especially since his friend and the friend’s mother 

had “actually been shot” already in retaliation. The prosecutor argued, under 

Evidence Code section 352, “the fact that [Felipe] possessed a .380 revolver is 

substantially more prejudicial than probative. It’s not a conviction. It’s a 

pending case. I concede that he can probably [be] impeach[ed by] the 

existence of that charged case and things like that, but in terms of being 

specifically impeached with possessing a firearm, it’s far too prejudicial, it’s 

irrelevant, and I would ask the court to exclude that.” The prosecutor also 

sought to exclude the evidence as impermissible character evidence under 

Evidence Code section 1101, subdivision (a),

6 designed to show the jury that 

“Felipe has a propensity to carry firearms,” and considering the weapon he 

was arrested with was not the type of weapon used in the shooting meant it 

was not probative of any third party culpability defense. 

Defense counsel argued, “With regard to the pending possession of a 

firearm case, you know, Judge, I just don’t think we can have it both ways, 

right? If you think my client’s possession of a firearm in 2020 is probative 

and relevant to impeaching him if he testifies, why wouldn’t it be probative to 

impeaching Mr. Jacob Felipe in this situation? He admits to possessing it. 

6 Evidence Code section 1101, subdivision (a) provides: “[E]vidence 

of a person’s character or a trait of his or her character (whether in the 

form of an opinion, evidence of reputation, or evidence of specific instances 

of his or her conduct) is inadmissible when offered to prove his or her 

conduct on a specified occasion. [¶] (b) Nothing in this section prohibits 

the admission of evidence that a person committed a crime, civil wrong, or 

other act when relevant to prove some fact (such as motive, opportunity, 

intent, preparation, plan, knowledge, identity, [or] absence of mistake or 

accident . . . ) other than his or her disposition to commit such an act. 

[¶] (c) Nothing in this section affects the admissibility of evidence offered 

to support or attack the credibility of a witness.” (Evid. Code, § 1101.) 
22

It’s not an issue. And so I think it’s totally relevant and it’s—for purposes of 

impeachment and it would be really quick.” 

The prosecutor responded, “I understood the court’s ruling with respect 

to [defendant’s] post-murder arrest for the firearms and the silencer. You 

had said I could impeach him dependent upon what he says. It’s not just 

coming in if he testifies. And so I would ask, if the court is inclined to allow 

impeachment with Mr. Felipe the same, to fashion the ruling that same way.” 

The court excluded the details of Felipe’s arrest, and specifically his 

possession of the .380-caliber firearm, stating the gun evidence as to 

defendant and the gun evidence as to Felipe presented different issues. 

“Possession of a .380 caliber revolver and possession of a or owning a Glock, 

and the murder weapon is a Glock, that’s different, because there’s no 

allegation that this person was killed or shot with a .380. It’s a totally 

different weapon. [¶] And I think if that is presented to the jury, then that 

goes to propensity, I think. I think it goes to character. And I don’t think 

that that is—I think that’s more prejudicial than probative. And I think that 

you can distinguish those two, the possession of and ownership of the Glock 

as opposed to that .380. Those are two different things. I don’t think you can 

lump those up together and say, ‘Well, if we’re going to do it for this 

incident—we’re going to enter Mr. Watson’s connection with the gun in this 

incident and we’re not for the .380.’ Those are just different.” Thus, while 

the fact Felipe had a “pending case is relevant, . . . the details of it are not.” 

Defense counsel then maintained he would not use Felipe’s possession 

of the firearm as propensity evidence, but “exclusively for the purposes of 

impeachment as a conduct of moral turpitude.” The court again declined to 

allow details of the arrest, stating “I hear where you’re going, but I do think 

that—that might be your direction, but I think that there’s a danger that it 
23

would be taken as propensity, and I think that that would be highly 

prejudicial and not—and that outweighs the probative nature, because it’s a 

.380. It’s not a Glock. If he had a Glock on him, then we’re talking, but he 

didn’t.” 

“ ‘A trial court’s ruling to admit or exclude evidence offered for 

impeachment is reviewed for abuse of discretion and will be upheld unless 

the trial court “exercised its discretion in an arbitrary, capricious, or patently 

absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People 

v. Foss (2007) 155 Cal.App.4th 113, 125.)

Defendant maintains “the court arbitrarily evaluated the prejudicial 

effect of the moral turpitude of firearm possession in a contradictory way” in 

that it ruled “the facts of Felipe’s firearm possession were unduly prejudicial 

even when used only for impeachment purposes” but “the facts of 

[defendant’s] alleged 2020 possession of firearms w[ere] not unfairly 

prejudicial.” 

The trial court’s evaluation was not “contradictory.” As the trial court 

observed, the murder weapon was a Glock firearm and defendant was found 

with several Glock firearms. Felipe, however, possessed a different kind of 

weapon. Accordingly, the firearm Felipe possessed had no connection with 

the instant case. There was “no allegation that [Ignacio] was killed or shot 

with a .380. It’s a totally different weapon.” Accordingly, the court did not 

unreasonably conclude that the fact Felipe was arrested with a different type 

of firearm was “highly prejudicial” and “more prejudicial than probative.” 

People v. Davis (1995) 10 Cal.4th 463 (Davis), cited by the Attorney 

General, supports the trial court’s exclusion of the details of Felipe’s arrest. 

In Davis, the defendant sought to introduce “evidence of other crimes” by a 

third party to corroborate his defense that the third-party committed the 
24

charged murder. (Id. at p. 500.) The trial court ruled the evidence “did not 

exhibit sufficient similarities to the events related by defendant to establish

[the third party’s] motive, intent, or identity. Instead, it found that the 

evidence of prior acts constituted character evidence, showing [the third 

party’s] propensity to engage in the kind of activity alleged to have resulted” 

in the murder. (Ibid.) The Supreme Court affirmed, stating “evidence of 

third party culpability must be capable of raising a reasonable doubt of the 

defendant’s guilt; ‘there must be direct circumstantial evidence linking the 

third person to the actual perpetration of the crime.’ ” (Id. at p. 501.) The 

proffered evidence was properly excluded because it “did not relate to motive 

and intent but was essentially an attempt to show that [the third party] was 

more likely to have been the killer because he had a history of violence. 

Moreover, there was no evidence supporting defendant’s testimony that [the 

victim] knew [the third party] or that the [third party] was present when [the 

victim] was assaulted.” (Ibid.)

Here, Felipe knew Ignacio, and Felipe was in the immediate area when 

Ignacio was killed. However, the fact Felipe was later arrested with a .380-

caliber weapon did not provide “direct or circumstantial evidence linking” 

him to the “ ‘actual perpetration of the crime,’ ” since the murder was 

committed with a Glock. (Davis, supra, 10 Cal.4th at p. 501.) Thus, the 

evidence Felipe was in possession of a .380 was useful only as to propensity, 

and the trial court did not abuse its discretion in excluding it. (See ibid.)

Cross-Examination

During defendant’s cross-examination of Felipe, the following exchange 

occurred:

“[Defense counsel]: Mr. Felipe, did you carry a gun back in September 

of 2016?
25

“[Prosecutor]: I’m going to object.

“THE COURT: All right. On that—the day in question that we’re 

talking about, were you armed with a firearm?

“[Felipe]: No. 

“[Defense Counsel]: Okay. On that day that we’re talking about, 

September 22, 2016, did you keep a firearm in the apartment?

“[Prosecutor]: Objection. Relevance.

“THE COURT: Sustained.

“[Defense Counsel]: Can we approach, your Honor?

“THE COURT: No.

“[Defense counsel]: On September 22nd, 2016, Mr. Felipe, did you keep 

a firearm near the side gate in the back of your apartment?

“[Felipe]: No.

“[Prosecutor]: Objection. Relevance. Move to strike.

“THE COURT: Overruled. The answer remains.

“[Defense counsel]: So it’s your testimony today that you had no access 

to a firearm on September 22nd, 2016?

“[Prosecutor]: Objection. Misstates the witness’s testimony.

“THE COURT: Sustained.” 

Defendant contends the “trial court erred by preventing the defense 

from properly cross-examining Felipe about his access to a firearm.” He 

contends Felipe’s answer to whether he had a gun in his apartment was 

relevant as it “would clearly ‘have a tendency to prove or disprove any 

disputed fact that is of consequence’ to appellant’s guilt or innocence”—that it 

was Felipe, not defendant, who killed Ignacio. 

“No evidence is admissible except relevant evidence.” (Evid. Code, 

§ 350.) However, Evidence Code section 352 provides, “The court in its 
26

discretion may exclude evidence if its probative value is substantially 

outweighed by the probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.” “We review the trial court’s 

decision to admit or exclude evidence for abuse of discretion.” (People v. 

Dworak (2021) 11 Cal.5th 881, 895 (Dworak).)7 

The trial court did not expound on its reasoning for sustaining the 

objection. Nor did defendant request that the court to do so or request an

opportunity to place his position on the record. We must therefore assume 

the trial court understood the applicable evidentiary principles and made all 

findings necessary to support its ruling. (See People v. Coddington (2000) 

23 Cal.4th 529, 644 [we presume “the court knows and applies the correct 

statutory and case law [citation] and is able to distinguish admissible from 

inadmissible evidence, relevant from irrelevant fact, and to recognize those 

facts which properly may be considered in the judicial decisionmaking 

process”], overruled on another ground in Price v. Superior Court (2001) 

7 There is no “special rule governing evidence of third party 

culpability.” “ ‘[C]ourts should simply treat third-party culpability 

evidence like any other evidence: if relevant it is admissible ([Evid. Code,] 

§ 350) unless its probative value is substantially outweighed by the risk of 

undue delay, prejudice, or confusion ([id.,] § 352).’ [Citation.] In making 

this assessment, courts should be mindful that third party evidence ‘need 

not show “substantial proof of a probability” that the third person 

committed the act; it need only be capable of raising a reasonable doubt of 

defendant’s guilt.’ [Citation.] [People v. Hall (1986) 41 Cal.3d 826, 833] 

explained that, in general, ‘evidence of mere motive or opportunity to 

commit the crime in another person, without more, will not suffice to raise 

reasonable doubt about a defendant’s guilt: there must be direct or 

circumstantial evidence linking the third person to the actual perpetration 

of the crime.’ ” (Dworak, supra, 11 Cal.5th at p. 895.) 
27

25 Cal.4th 1046, 1069, fn. 13; Evid Code, § 664 [“It is presumed that official 

duty has been regularly performed.”].) 

We therefore presume the trial court’s sustaining of the prosecutor’s 

objection was consistent with its earlier evidentiary ruling, which we have 

upheld, excluding details of Felipe’s subsequent arrest and, specifically, that 

Felipe was in possession of a firearm. Although the court did not expressly 

engage in an Evidence Code section 352 analysis in sustaining the objection, 

we must infer that it did so. (People v. Prince (2007) 40 Cal.4th 1179, 1237 

[trial court need not expressly weigh section 352 factors on the record if that 

weighing can be inferred from the record].) Defendant makes no argument to 

the contrary, and concedes “on its own . . . the trial court’s state evidentiary 

errors do not meet” People v. Watson (1956) 46 Cal.2d 818 (Watson) standard 

of prejudice.

8 

Firearm Enhancement

While ensuring defendant understood the repercussions of going to trial 

and rejecting any plea deal, the trial court observed it had discretion to strike 

the Penal Code section 12022.539 enhancement but that it might not do so. 

The court stated, “[Y]ou do realize if you are convicted of that second, that my 

hands are pretty much tied. You’d be doing that 40.” Defense counsel

responded, “Your Honor, I just want to clarify for the record that, in fact, the 

25-to-life enhancement is actually discretionary now.” The court replied, 

“That is true. So I do have discretion. Thank you. I do have discretion. I 

could exercise my discretion. I couldn’t. If I don’t, that means you’re doing 

8 Given our conclusion there was no evidentiary error, we need not 

and do not address defendant’s claim of cumulative error. 

9 All further statutory references are to the Penal Code unless 

otherwise indicated.
28

the max. If I do, that means you could do less. All right? [¶] But you’re 

willing to, say, gamble and go to trial?” Defendant stated, “Your Honor, if the 

Court is worried about me, yes, your Honor” and later, “Yes. You can put it 

on the record I understand, your Honor.” 

In the probation report, defendant, while speaking with the probation 

officer, described his childhood as not “ ‘terrible or anything like that,’ ” and 

he “denied encountering any mental, physical, or sexual abuse as a child or 

teenager.” He stated his mother “may have had ‘Substance abuse’ issues 

prior to his birth,” and he “had been diagnosed with ‘Bipolar, Asperger’s, and 

ADHD.’ ” He reported having previously taken medication “to address his 

mental health in elementary and middle schools,” but that he “did not take 

medications in high school.” Defendant was 24 years old at the time of the 

murder.

The probation report stated defendant was statutorily ineligible for 

probation and listed three factors in aggravation and one in mitigation.10 The 

mitigating factor was that defendant had no prior criminal record.

The prosecution urged the court to decline to exercise its discretion to 

dismiss the firearm enhancement and to sentence defendant to 40 years to 

life. 

Defendant asked the court to exercise its discretion, under newly 

enacted legislation (Sen. Bill No. 620),11 “not [to] impose any additional 

10 The factors in aggravation included: (1) the “crime involved great 

bodily harm and callousness which resulted in death”; (2) the “victim was 

unarmed”; and (3) defendant “has engaged in violent conduct which 

indicates a serious danger to society.” (Cal. Rules of Court, rule 4.421(a) & 

(b).)

11 Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill No. 620) 

(Stats. 2017, ch. 682, §§ 1, 2, eff. Jan. 1, 2018).
29

prison sentence for the gun enhancement.” Counsel urged the court to 

consider defendant’s age at the time of the offense (24 years old), that he had 

no prior criminal record, and his “very challenging upbringing and mental 

and psychiatric history.” This included that defendant was “raised in an 

unstable and broken home,” as his parents divorced “at a young age, causing 

his mother to raise him essentially alone.” Additionally, his mother’s 

frequent moves caused “resentment by [defendant] as he did not have a 

pleasant experience moving . . . and being away from his father.” Defendant’s 

father, in turn, subjected defendant “to severe beatings and physical 

violence,” and the “combination of violence and an unstable family household 

had a tremendous impact on [defendant’s] ability to make proper decisions 

throughout his life.” Counsel also pointed out defendant “suffered from 

learning disabilities, psychological disorders and failed attempts at providing 

him the necessary tools to handle his circumstances.” Defendant “was 

regularly diagnosed and treated for a mood disorder, Asperger’s disorder, and 

attention deficit hyperactivity disorder,” and he had been “prescribed 

Risperdal, a drug often prescribed to help treat schizophrenia, bipolar 

disorder, and irritability caused by autism.” Counsel urged that, “considering 

all of these mental health issues, the crime before the court is a reflection of a 

hyper-sensitive overreaction from mental health concerns rather than from a 

sophisticated hardened criminal.”12

At the outset of the sentencing hearing, defense counsel asked the court 

for leave to withdraw the sentencing memorandum stating, “I wanted to 

bring to the court’s attention this morning that Mr. Watson wanted to 

express to the court his desire to have me withdraw my arguments in 

12 Defendant attached to his sentencing memorandum a mitigation 

report, several education plans, and medical conclusions and findings. 
30

mitigation as well as any arguments I made to this court to exercise its 

discretion and not impose the gun enhancement in this case. . . . Mr. Watson 

wants to express to the court, by making that request, his insistence that he’s 

innocent in this case. So he is in disagreement with any arguments in 

mitigation that I’ve submitted in my sentencing memorandum . . . .” The 

court denied the request to withdraw. 

The prosecutor urged the court to decline striking or dismissing the 

firearm enhancement, arguing the nature of defendant’s actions indicated 

defendant “poses an extreme risk to the community.” He characterized 

defendant’s asserted mitigation factors as “boil[ing] down” to “his parents got 

divorced and he was disciplined too much,” which was “not an excuse or 

mitigation.” The defense submitted on the sentencing memorandum. 

After hearing from the victim’s family, the court sentenced defendant to 

a term of 40 years to life. The court stated, “I don’t find any factors in 

mitigation, any. . . . Not the upbringing, none of that. I know a number of 

people that had IEPs, that were from divorced households. They don’t go 

around carrying guns, shooting people. [¶] And then when he’s arrested, 

after he’s accused of murder, he’s found in a house with an arsenal, with a 

silencer, with magazines loaded with bullets. That’s a person, to me, that is a 

serious danger to society. He has already exhibited violent conduct. This 

event included great violence, great bodily harm, a high degree of cruelty, 

viciousness and callousness. He was armed with a weapon the victim was 

not.

“[¶] . . . [¶] This is one of those upsetting trials for me, and I see them 

all. But when a life is lost because someone is a poser or a wannabe and 

wants to be something else to be accepted or to be seen as tough and they 

hurt somebody, those really get to me, because he was not about that life. No 
31

one should be about that life. But he wanted to show people that he was 

tough, and that’s why he’s here. And the fact that he’s shown no remorse 

throughout this trial indicates to me more so that he’s a serious danger to 

society. [¶] He knew exactly what he was doing. During the lineup changing 

his voice, cutting his hair, presenting as if he’s a choir boy in this church—in 

this courtroom. But the evidence showed something different. . . . 

“So, he is statutorily ineligible for probation. Probation is denied. He 

will be sentenced as follows: [¶] First, just to make it clear, I find all the 

circumstances in aggravation that are listed in the DA’s report to be true. 

The only factor in mitigation is no prior criminal record, but he has displayed

some serious, concerning conduct. [¶] . . . [¶] For count 1, the 187, the 

indeterminate term of 15 years to life. I am not going to exercise my 

discretion in this case for all the reasons listed by [the prosecution’s] 

sentencing memorandum, for what happened here today, the fact that there 

are factors in aggravation more so than mitigation.” 

The court then sentenced defendant to a consecutive 25-years-to-life 

term for the section 12022.53 enhancement, declining to exercise its 

discretion under section 1385 or section 12022.53, subdivision (h). The court 

also imposed but stayed sentences for the remaining three enhancements 

pursuant to section 654. 

“Before 2018, sections 12022.5 and 12022.53 prohibited a trial court 

from striking a firearm enhancement required to be imposed under those 

sections. [Citation.] The Legislature enacted Senate Bill No. 620 . . . to 

amend sections 12022.5 and 12022.53, effective January 2018, to give the 

trial court discretion to strike those enhancements: Sections 12022.5, 

subdivision (c) and 12022.53, subdivision (h), now provide that a court ‘may, 

in the interest of justice pursuant to Section 1385 and at the time of 
32

sentencing, strike or dismiss an enhancement otherwise required to be 

imposed by this section.’ [Citations.]

“In 2021, the Legislature enacted Senate Bill No. 81 (2021–2022 Reg. 

Sess.) (Senate Bill No. 81), which amended section 1385 to specify mitigating 

circumstances that the trial court should consider when deciding whether to 

strike enhancements from a defendant’s sentence in the interest of justice.” 

(People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–16 (Lipscomb).) In 

particular, section 1385, subdivision (c) now provides:

“(1) Notwithstanding any other law, the court shall dismiss an 

enhancement if it is in the furtherance of justice to do so, except if dismissal 

of that enhancement is prohibited by any initiative statute.

“(2) In exercising its discretion under this subdivision, the court shall 

consider and afford great weight to evidence offered by the defendant to prove 

that any mitigating circumstance in subparagraphs (A) to (I) are present. 

Proof of one or more of these circumstances weighs greatly in favor of 

dismissing the enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety. ‘Endanger public safety’ means 

there is a likelihood that the dismissal of the enhancement would result in 

physical injury or other serious dangers to others.”13 (§ 1385, subd. (c)(1)–

(2).)

13 The mitigating circumstances include: application of the 

enhancement would result in a discriminatory racial impact; multiple 

enhancements are alleged in a single case; application of an enhancement 

could result in a sentence of over 20 years; current offense is connected to 

mental illness or to prior victimization or childhood trauma; current 

offense is not a violent felony; defendant was a juvenile when the offense 

was committed; enhancement is based on a prior conviction, which is over 

five years old; and an inoperable or unloaded firearm was used in the 

commission of the crime. (§ 1385, subd. (c)(2)(A)–(I).)
33

Citing Lipscomb, supra, 87 Cal.App.5th 9, defendant complains the 

“trial court did not explicitly find [he] would endanger public safety.” 

Defendant’s reliance on Lipscomb is misplaced. While the trial court in that 

case did, indeed, make “an explicit finding that dismissing the enhancement 

‘would endanger public safety,’ ” the Court of Appeal did not hold an explicit 

finding is required to support imposition of the enhancement. Rather, the 

appellate court pointed to the finding as evidencing the trial court understood 

the scope of its discretion under the recent amendments. (Id. at p. 18.) The 

Court of Appeal went on to hold, contrary to the defendant’s argument in that 

case, that the trial court “was not required to ‘consider and afford great 

weight’ to evidence that application of the enhancement could produce a 

sentence of over 20 years.” (Ibid.) In short, the appellate court did not rule 

that a trial court must employ any particular language—explicit or 

otherwise—before declining to strike a firearm enhancement.

Section 1385 contains no requirement that the trial court articulate any 

findings or rulings in dismissing or refusing to dismiss an enhancement. 

(§ 1385, subd. (c); see In re Large (2007) 41 Cal.4th 538, 550 [noting the 

express findings requirement of section 1385, former subdivision (a) only if a 

strike is dismissed].) Moreover, the record demonstrates the trial court was 

aware of the scope of its discretion under section 1385, subdivision (c)(1) and 

(2), as defendant’s sentencing memorandum addressed the issue. Indeed, the 

trial court also stated during the sentencing hearing that defendant was a 

“serious danger to society” and it was declining to exercise its discretion 

under section 1385.

Defendant further argues any finding “that dismissal of the 

enhancement would endanger public safety” is unsupported because “there is 

no realistic likelihood that dismissing the 25-years-to-life enhancement would 
34

result in another person suffering physical injury or being placed in serious 

danger.” That is because, says defendant, “even if the enhancement is 

dismissed, appellant would still be serving a life sentence on the underlying 

murder conviction.” Further, since defendant could not be released on parole 

if the board finds he presents a public safety concern, “adding 25 years on top 

of an already indeterminate sentence served no purpose in protecting the 

public.” 

Defendant cites no authority for the proposition that a trial court 

abuses its discretion by imposing a sentence enhancement where the 

defendant is sentenced to an indeterminate life term. Nor are we aware of 

any such authority. To the contrary, as the Supreme Court explained in 

People v. Shabazz (2006) 38 Cal.4th 55, 70, “Although defendant contends it 

would be unreasonable to assume that the Legislature intended that the 

section 12022.53 enhancements would be imposed on a defendant who is 

sentenced to life imprisonment without the possibility of parole, because the 

enhancement would have no practical effect, the words employed in 

section 12022.53 defeat defendant’s argument: the statute states specifically 

that it is intended to apply to ‘any felony punishable by death or 

imprisonment . . . for life.’ (§ 12022.53, subd. (a)(17)).” (Shabazz, at p. 70 

[reversing Court of Appeal judgment vacating 25-years-to-life enhancement 

under § 12022.53, subd. (d), on the defendant’s LWOP sentence]; see also

People v. Chiu (2003) 113 Cal.App.4th 1260, 1262 [the defendant properly 

sentenced to § 12022.53, subd. (d) firearm enhancement on consecutive 

LWOP sentence].)

In sum, the trial court did not abuse its discretion in declining to 

dismiss the firearm enhancement. 
35

Presence at Sentencing Hearing

At the start of trial, defendant, who was in custody, was admonished by 

the trial court after he was twice observed communicating with his family 

members—despite a courtroom sign prohibiting such communication and 

despite a deputy telling him to stop doing so. The prosecutor also reported 

there had been some “pushback” from defendant when the deputy told him to 

stop talking to his family. 

Specifically, the court stated, “All right. So, Mr. Watson, there’s no 

communication. There’s no turning around. There’s no waving. Okay? 

[¶] . . . [¶] . . . If my deputy tells you to do something, then you do it. If I hear 

that you’re giving lip, we’re going to have a problem. I want you here because 

this is your trial, but there’s rules that have to be followed. Okay? If you 

can’t follow those rules, then I’ll exclude you from the proceedings. I don’t 

want to do that. All right? If she tells you to do something, that’s what you 

do. Okay?” Defendant responded, “Yes.”

At the sentencing hearing, after hearing from the victim’s family 

members and defense counsel, defendant gave a statement. During his 

statement, defendant used a curse word, and the court admonished him to 

“Watch your mouth.” Despite defendant’s immediate apology, he 

subsequently cursed again. However, the court gave no admonishment, and 

defendant finished his statement. The court then heard from the prosecutor. 

After the statements, the court began to pronounce sentence, with 

interruptions by defendant:

“THE COURT: Okay. All right. Well, let me start off by saying this: 

This is tragic on so many levels. I sat here and I saw the witnesses testify 

and how this event has affected them. I saw the family throughout the whole 

trial and there was not a dry eye in this courtroom. I feel for the victim in 
36

this case. This didn’t have to go down like this. [¶] I grew up in LA, in 

Oakland, and I had a lot of friends that were in gangs or sold drugs or, you 

know, just got into trouble, but one thing folks did is they stayed in their lane 

of traffic. This wasn’t your beef. You had nothing to do with this. And don’t 

sit in here and say you are innocent. Don’t give me that.

“[Defendant]: That’s exactly what—that’s what—

“THE COURT: See, and that’s your problem, because you pinged—you 

pinged all the way from start to finish where this happened, your phone. 

You’re trying to blame this on another person who didn’t want that smoke. 

He didn’t want those issues. [¶] You are a wannabe. That’s what happens. 

People that want to belong, they end up doing stuff and going too far. This 

wasn’t your fight. It was a fight, not a gun battle. You chased down a 19-

year-old and shot him in the back. You can say that all you want, but I know 

the truth. The evidence and the jury saw it.

“[Defendant]: The evidence you let them see.

“THE COURT: Shut your mouth.

“[Defendant]: Oh, what about the other evidence?

“THE COURT: Shut your mouth.

“[Defendant]: You’re restricting me in court.

“THE COURT: Take him out.” 

Defendant was then removed from the courtroom. 

Defendant claims the trial court prejudicially violated his 

constitutional and statutory rights to be present throughout his sentencing 

hearing. 

“A defendant has the constitutional right to be personally present in 

court ‘where necessary to protect the defendant’s opportunity for effective 

cross-examination, or to allow him to participate at a critical stage and 
37

enhance the fairness of the proceeding.’ ” (People v. Flinner (2020) 10 Cal.5th

686, 710.) “The right is guaranteed by the Sixth and Fourteenth 

Amendments of the federal Constitution as well as article I, section 15 of the 

California Constitution.” (People v. Basler (2022) 80 Cal.App.5th 46, 57.)

“Critical stages of a defendant’s criminal prosecution include the imposition

of sentence . . . .” (Ibid.; § 977, subd. (b)(1) [“in all cases in which a felony is 

charged, the accused shall be physically present . . . at the time of the 

imposition of sentence”].)

However, the right to be present is not absolute. “ ‘[A] defendant can 

lose his right to be present at trial if, after he has been warned by the judge 

that he will be removed if he continues his disruptive behavior, he 

nevertheless insists on conducting himself in a manner so disorderly, 

disruptive, and disrespectful of the court that his trial cannot be carried on 

with him in the courtroom.’ ” (People v. Bell (2019) 7 Cal.5th 70, 117; § 1043, 

subd. (b)(1) [same].) 

Defendant maintains that, in violation of section 1043, subdivision 

(b)(1), he “was not warned that he would be removed for bad behavior prior to 

his removal.” And while he concedes he “engaged in a contentious exchange 

with the court,” he asserts his “conduct” was not so extreme, aggravated or 

prolonged as to warrant “his removal contrary to statute and without 

warning.”

“ ‘On appeal, we apply the independent or de novo standard of review to 

a trial court’s exclusion of a criminal defendant from pretrial and trial 

proceedings, either in whole or in part, “insofar as the trial court’s decision 

entails a measurement of the facts against the law.” ’ ” (Virgil, supra,

51 Cal.4th at p. 1235; People v. Waidla (2000) 22 Cal.4th 690, 741.)
38

The Attorney General, pointing to the trial court’s warning at the 

beginning of trial when defendant persisted in attempting to communicate 

with his family, argues defendant was sufficiently warned about the 

possibility of removal if he continued being disruptive. He further argues

that, even if the court should have given a second warning, the error was 

harmless under the circumstances. We agree any error was harmless and 

therefore do not address whether a second warning should have been given. 

Error in excluding a defendant represented by counsel is assessed 

using the harmless error analysis under both state law (Watson, supra,

46 Cal.2d at p. 836) and federal law (Chapman, supra, 386 U.S. at p. 24). 

(People v. Mendoza (2016) 62 Cal.4th 856, 902; People v. Whitmore (2022) 

80 Cal.App.5th 116, 127.) Any error in excluding defendant, here, from the 

remainder of the sentencing hearing was harmless under either standard. 

Defendant posits that the trial court’s supposed abuse of discretion in 

imposing the firearm enhancement, without “properly evaluating the reforms 

enacted” by Senate Bill No. 81, “may well have occurred because of a 

momentary lapse in judgment caused by the contentious nature of the trial 

court’s confrontation with appellant and his subsequent removal.” However, 

as we have explained, the trial court did not abuse its discretion in imposing 

the enhancement. Moreover, defendant’s argument is wholesale speculation. 

The record does not remotely support a conclusion that defendant’s 

interruptions caused the court a “momentary lapse in judgment,” let alone 

one that resulted in the court’s mistakenly imposing a firearm enhancement

it had intended not to impose. 

Despite defendant’s request that his counsel withdraw his sentencing 

statement and that the court not consider any mitigating factors, the court 

denied the request, considered the sentencing memorandum, heard from the 
39

prosecutor, and heard from victim’s family members. Defendant was present 

during all of this and was not removed from the courtroom until the final 

minutes of the hearing. In sum, any error in excluding defendant from the 

courtroom during the final minutes of the sentencing hearing was harmless 

beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 23; see In re 

Guoimar (2016) 5 Cal.App.5th 265, 279 [“violation of [the] petitioner’s right to 

be present at the resentencing was harmless beyond a reasonable doubt”]; 

People v. Davis (2005) 36 Cal.4th 510, 534 [concluding the defendant’s 

absence from pretrial hearing was harmless beyond reasonable doubt].) 

DISPOSITION

The judgment is affirmed.

BANKE, J.

WE CONCUR:

HUMES, P. J. 

LANGHORNE WILSON, J. 

A165995; People v. Watson