1

Filed 3/23/22 P. v. Brooks CA1/ 1

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered 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.

MARCEL BROOKS,

Defendant and Appellant. A159421

(Alameda County

Super. Ct. No. 17

- CR

- 012133A)

A jury convicted appellant Marcel Brooks of conspiracy to commit

murder and attempted murder of his 11

- month

- old son. On appeal, Brooks

argue d that the trial court abused its discretion by (1) de nying his two

motions to replace his appointed attorney; (2) admitting jail letters from

Brooks to his co

- conspirator Andanna Ibe that contained sexually explicit

statements; and (3) admitting a police sergeant’s testimony related to song

lyrics contained in another jail letter from Brooks to Ibe. We rejected those

claims in our original opinion.

The California Supreme Court granted review and transferred the

matter back to us with directions to vacate our decision and reconsider the

cause in light of Asse mbly Bill No. 518 ( 2021

– 2022 Re g Sess.) (Stats. 2021,2

ch. 441, § 1) (

Assembly Bill No. 518) , which recently amended Penal Code

section 654 1 to afford trial courts discretion to impose a lesser sentence.

We conclude the trial court did not abuse its discretion but find that

remand for resentencing is warranted to allow the trial court to exercise its

new sentencing discretion under section 654 . Accordingly, we remand for

resentencing, and in all other respects we affirm the judgment

.

I. FACTUAL AND PROCEDURAL BACKGROU ND

Brooks was charged by second amended information with conspiracy to

commit premeditated murder (§§ 182, subd. (a)(1), 187, subd. (a)) (count 1);

attempted murder of his son and Asala Odom

— the mother of his son

— on

April 4, 2017 ( id. §§ 187, subd. (a), 664, subd. (a)) (counts 2 & 3); and

attempted murder of his son on April 17, 2017 (count 4). Count 4 also

included a speci al allegation that Ibe was armed with a firearm (§ 12022,

subd. (a)(1)). Ibe was charged by the same information. Ibe had a five

- year

old child with Brooks and was pregnant with another child of his at the time

of the charged offenses.

Odom testified at trial that she had applied for MediCal benefits in late

2016 and named Brooks as the father of her son who had been born in April.

Alameda County subsequently sought child

- support payments from Brooks.

Brooks was upset and he believed the child was not his. After a DNA

paternity test affirmed he was the father, Brooks’s attitude changed but his

interest in his son stopped around March 2017. That same month, Brooks

was ordered to pay $523 a month in child support.

Brooks testified that he was initially resistant about being the father of

Odom’s son, but subsequently wanted to be more involved in his life. When

Brooks was asked about his financial situation at that time, he responded

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

that he had a “couple thousand” in the bank, which was more money than he

had “ever had in [his] life.”

A. The April 4, 2017 Car Incident

Odom testified that Brooks initiated a meeting with her and their son

on April 4, 2017, at the San Leandro BART station

— the first time they had

seen each other since the entry of the ch ild

- support order. Shortly before the

set meeting time, Brooks sent Odom a text that he had “[j]ust got to

MacArthur BART.” Brooks, however, was in Antioch when he sent that text.

Once Odom received the text, she left her house with their son. As she w as

walking, there was a car waiting for her to cross the street. When she passed

in front of the car, it sped up and swerved towards her as she ran away. She

described the car as a silver four

- door and the driver as an African

- American

woman with long ha ir. Odom ran back into her house and subsequently

contacted Brooks to ask whether he was at their meeting spot or still on his

way. Brooks responded that he was no longer coming. Odom told Brooks

what had happened to her, described the car and the drive r, and expressed

concern that it was connected to Brooks or someone he was dating. Brooks

told Odom that she was “crazy” and that he did not have anything to do with

it.

Brooks testified that he had lied about being at the MacArthur BART

station when he sent the text because he was “stalling” and wanted to keep

the meeting, but needed to find a babysitter for his other child . He did not

know where in San Leandro Odom was living at the time. Odom told him

that a “crazy driver” had almost hit her, but did not identify the type or color

of the car.

Cell phone records showed that approximately 10 calls were made

between Brooks and Ibe on April 4, 2017. Around noon, Brooks r eceived a4

call from Ibe that lasted 10 to 15 minutes. The records also showed that Ibe’s

phone traveled from Antioch to San Leandro shortly before noon, and then

back to Antioch.

B. The April 17, 2017 Shooting

Odom testified that Brooks initiated anothe r meeting with her and

their son on April 17, 2017, at a McDonald’s in San Leandro. Odom was not

hesitant to go because they had met there on April 9 without incident.

Brooks testified that he drove Ibe in her car to the McDonald’s because

he wanted Ibe to meet Odom and their son, as Ibe did not believe Brooks had

another child. He did not tell Odom about this plan. Brooks and Ibe arrived

early but missed the turn, so parked on the street behind the McDonald’s.

Brooks got out and told Ibe that she shou ld get some gas. He claimed he told

her that because he wanted to “call another girl and not be in her presence.”

He was then on his phone for “20 minutes or more.”

Surveillance video from the McDonald’s showed Ibe entered the

restaurant before Odom. B etween 2:14 p.m. and 2:27 p.m., Brooks and Ibe

made three calls to each other. At approximately 2:30 p.m., Brooks sent

Odom text messages stating that he was “here” and “inside” the McDonald’s.

Odom replied that she had just walked in. Odom sat down at a table next to

a window with her son. When Odom texted Brooks to ask where he was,

Brooks texted that he was walking up. Ibe called Brooks at 2:31 p.m. and

Brooks called Ibe at 2:35 p.m.

Odom testified that as she was waiting, someone approached and f ired

a shot that went through the window next to her table. It appeared that the

gun was pointed at her son, but the shot missed. Surveillance video showed

Ibe approaching Odom and her son, firing a single shot, and then exiting the

restaurant.5

Brooks t estified that he had lied about being inside the McDonald’s

when he sent the text to Odom because he was “impatient” and did not like

waiting . He said that when Brooks saw sirens coming from the McDonald’s

and Ibe’s car gone, he thought that maybe Ibe and Odom had gotten into a

fight or argument. He did not try to text or call Ibe or Odom because he was

“waiting for one of them to call [him].” According to Brooks, Ibe had told him

that she was “carrying protection in case this bitch tries to do anything, ” but

he thought that “could have meant mace, or whatever.” Brooks, however,

had seen Ibe with a gun “a couple months before” the shooting.

Brooks testified that he then took a taxi to a nearby park to “collect

[his] thoughts,” and talked with friend Gre g Frazier and coworker Brandon

Starks on the phone. He asked Starks for a ride, and Starks dropped him off

at a BART station in Oakland. Brooks then went to Brentwood where his car

was located. He drove to Livermore, as Ibe texted him that she had been in a

car accident there. Text messages recovered from Ibe’s cell phone included a

text sent to Brooks with the address of the accident location in Livermore.

Brooks called a towing service and had them tow Ibe’s car back to her friend’s

house. Records f

rom Ibe’s cell phone showed a text sent to Brooks with an

address in Antioch. Brooks testified that he then drove Ibe towards El

Dorado Hills because she wanted to go to her aunt’s house. Ibe was unable to

reach her aunt by phone, however, so Brooks and Ibe proceeded to Frazier’s

house in Sacramento because Frazier had invited Brooks to come talk. They

stayed at Frazier’s house for a while, but then went to a nearby motel

because Ibe said she wanted to be alone. Brooks and Ibe were arrested at the

motel

.

Police attempted to extract text messages from Brooks’s cell phone but

none were recovered. Brooks testified that he had a practice of deleting all of6

his text messages so that he would not “get caught cheating,” as he was

involved with different women

.

C. The Verdict and Sentencing

The jury found Brooks guilty on count 1 (conspiracy to commit

premeditated murder) and count 4 (attempted murder of his son on April 17,

2017), but acquitted Brooks on counts 2 and 3 (the attempted murders on

April 4, 2017 ). As to count 4, the jury also found true the special allegations

that the attempted murder was willful, deliberate, and premeditated, and

that Ibe was armed with a firearm. The trial court sentenced Brooks to 25

years to life in prison for conspiracy t o commit premeditated murder, and

stayed the sentences on the remaining count and enhancement.

II. DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Denying Brooks’s

Marsden Motions

Brooks first argues that the trial court improperly denied his two

motions to replace his appointed attorney under People v. Marsden (1970)

2 Cal.3d 118 ( Marsden ). We review the denial of the Marsden motions for

abuse of discretion. ( People v. Streeter ( 2012) 54 Cal.4th 205, 230.)

1. Additional Facts

Brooks made his first Marsden motion in October 2017, prior to trial.

At the hearing on the motion, Brooks stated that he and his counsel had a

disagreement in September 2017, where his counsel used profanity a nd also

said: “Oh, you know if you go to trial, you know you’re going to be going

against an all

- white jury.” Brooks felt disrespected by the use of profanity

and Brooks did not trust his counsel “because of that.” Counsel agreed that

they had had an ar gument because Brooks said he had done some research

and “knew that if you shoot at somebody and you miss, there is no attempted

murder.” Counsel continued: “I tried to tell him that that is not the law, but7

he was adamant that that was the law, and that was the argument. And I

might have used some inappropriate words, but that’s where we left off. He

was totally convinced that that is the law, and I was

– I couldn’t convince him

otherwise.” Counsel noted that “if the Court could address the issue with Mr.

Brooks, I’m sure that would be helpful for Mr. Brooks, at least on that issue.”

The trial court denied the Marsden motion. It also stated: “One specific

thing I will address, since it was brought up, is shooting and missing.

Technically, that is a ttempted murder and can be.

. . . in Alameda County, it

seems like many times attempted murder is not charged unless it’s a

shooting that hits someone. But that’s not required in an attempted murder.”

Brooks made his second Marsden motion in January 2020

, after trial

but before sentencing. Brooks argued that, among other things, his counsel

(1) ignored a discovery violation by the prosecution in failing to provide text

messages between Brooks and Ibe that were recovered from Ibe’s phone; and

(2) failed t o locate and call Starks and Frazier as witnesses in the trial. At

the hearing on the motion, Brooks explained that Starks could have testified

about what Brooks had said while driving to the Oakland BART station, and

Frazier could have testified that Bro oks said he did not know what happened

between Ibe and Odom, and that Brooks wasn’t “fleeing” to Sacramento but

had been invited by Frazier. Counsel stated that he did not have any

knowledge about the texts. Counsel also stated that Starks could not be

l ocated at the time of trial and that any statements Brooks may have made to

Frazier “might have been viewed as somewhat self

- serving.” When asked if

he had an investigator on the case, counsel responded: “Initially I did. I

don’t recall. Like I say, mo st of these things didn’t pan out, and I knew Mr.

Brooks would be testifying on his own behalf.” The trial court denied the

Marsden motion. It explained that there was a hearsay problem with the8

proposed testimony from Starks and Frazier, and that a purp orted discovery

violation by the prosecution “may be grounds for something else,” but was not

a reason to excuse Brooks’s counsel.

Brooks then moved to represent himself under Faretta v. California

(1975) 422 U.S. 806 ( Faretta ). At the hearing on the mot ion, Brooks stated

that he sought to investigate the purported discovery violation and a

potential motion for new trial. Brooks explained that he had obtained text

messages used during Ibe’s trial from his family members, and they included

messages betwee n him and Ibe on the day of and day after the shooting that

contained “nothing incriminating.” The prosecution reviewed the text

messages and explained that some (but not all) of Ibe’s text messages had

been recovered, and that those text messages had bee n provided to Brooks’s

counsel by disk. Brooks’s counsel reviewed the text messages and stated that

he had no present recollection of the specific disk, given the volume of

discovery. The trial court also reviewed the text messages, 2 but ultimately

denied the Faretta motion as untimely and proceeded with sentencing.

2. Analysis

When a defendant makes a Marsden motion, the trial court “ ‘ “must

permit the defendant to explain the basis of his contention and to relate

specific instances o f inadequate performance.” ’ ” ( People v. Streeter

, supra

,

54 Cal.4th at p. 230.) “ ‘ “A defendant is entitled to relief if the record clearly

shows that the appointed counsel is not providing adequate representation or

that defendant and counsel have be come embroiled in such an irreconcilable

2 The text messages presented by Brooks at the hearing are not

included in the record. It appears, however, that the trial court read two of

the messages aloud during the Faretta hearing: (1) “It’s CJ’s birthday, and

how could you be thinking of this” and (2) “I’m pregnant, and you think about

that situation.”9

conflict that ineffective representation is likely to result.” ’ ” ( Ibid .) Denial of

a Marsden motion is not an abuse of discretion “ ‘ “unless the defendant has

shown that a failure to replace counsel would subst antially impair the

defendant’s right to assistance of counsel.” ’ ” ( Ibid .)

As to the October 2017 pre

- trial Marsden motion, Brooks argues that

the trial court abused its discretion by failing to adequately inquire about his

counsel’s purported statement regarding the prospect of an “all

- white jury.”

We are not persuaded. The transcript of the Marsden hearing shows th at

Brooks recounted a disagreement from September 2017, during which his

counsel used profanity and stated that if Brooks went to trial, he would be

“going against an all

- white jury.” Counsel explained the legal nature of their

disagreement, and admitted that he “might have used some inappropriate

words” in trying to convince Brooks of the law on attempted murder. The

trial court thus complied with its duty to permit Brooks to explain the basis

of his contention, and ascertain the details of the specific disagreement he

raised. ( People v. Streeter

, supra , 54 Cal.4th at p. 230.) Moreover, the

transcript reflects that Brooks’s purported lack of trust in his trial counsel

was based on his counsel’s use of profanity during that argument. Brooks

stated: “Yo ur Honor, I feel like just the disrespect of someone cussing at me

and using profanity, I’ve never disrespected Mr. Hong. I’ve never cussed at

him at all, and his disrespect for me rubbed me the wrong way. And he

cussed at me. That’s unprofessional.” T he trial court did not abuse its

discretion in concluding that Brooks had failed to demonstrate an

irreconcilable conflict on this basis. (See People v. Hines (1997) 15 Cal.4th

997, 1026 [concluding that asserted communication problems between

defendant a nd counsel “were not insoluble and had not given rise to such an

irreconcilable conflict that ineffective representation was likely to result”].)10

As to the January 2020 post

- trial Marsden motion, Brooks argues that

the trial court abused its discretion bec ause he raised multiple instances of

deficient performance by his trial counsel. First, Brooks claims that his trial

counsel failed to present to the jury “innocuous” text messages between

Brooks and Ibe after the shooting that were recovered from Ibe’s p hone.

Brooks contends that there is “no conceivable tactical basis for a reasonably

competent attorney to fail to present these text messages after receiving

them in the discovery from the prosecution.” As a preliminary matter, the

text messages are not included in the record; the trial court read aloud only

two of the text messages at the Faretta hearing. This omission renders the

record inadequate to review Brooks’s claim as to the remainder of the text

messages. ( People v. Whitus (2012) 209 Cal.App.4 th Supp. 1, 6 [appellant has

“ ‘affirmative obligation to provide an adequate record so that we may assess

whether the trial court abused its discretion’ ”].) As to the two text messages,

Brooks’s claim amounts to a “tactical disagreement” that is insuffi cient to

demonstrate Marsden error. ( People v. Dickey (2005) 35 Cal.4th 884, 922.)

Contrary to Brooks’s assertion, his trial counsel did not concede that he had

failed to review the text messages during discovery. Instead, he stated at the

Marsden heari ng that he did not know about the text messages raised by

Brooks, and then stated at the Faretta hearing that he had no present

recollection of the specific discovery disk that contained the texts. Moreover,

the two text messages were not necessarily as “ innocuous” as Brooks

suggests: in one, either Ibe or Brooks appears to express some concern by

asking “ how could you be thinking of this,” and in the other Ibe appears to

tell Brooks, “I’m pregnant, and you think about that situation.” Brooks’s trial

cou nsel could have made a rational tactical choice to not present these text

messages in order to avoid “opening the door to further incriminating11

evidence.” ( In re Alcox (2006) 137 Cal.App.4th 657, 665.) This is particularly

true because two other innocuou s text messages between Ibe and Brooks sent

after the shooting were admitted into evidence: one with the location of Ibe’s

car accident and the other with the address for towing her car. This evidence

contradicted the inference suggested by the prosecuti on that Brooks had

deleted all of his text messages because they were incriminating.

Second, Brooks claims that his trial counsel failed to locate and call

Starks and Frazier as witnesses. “ ‘To sustain a claim of inadequate

representation by reason of fa ilure to call a witness, there must be a showing

from which it can be determined whether the testimony of the alleged

additional defense witness was material, necessary or admissible, or that

defense counsel did not exercise proper judgment in failing to c all [the

witness].’ ” ( In re Noday (1981) 125 Cal.App.3d 507, 522.) Although Brooks

may have felt strongly about presenting these witnesses, as he claims on

appeal, it simply does not follow that his attorney acted incompetently in

declining to call them

. Brooks concedes that any testimony from Starks or

Frazier about what Brooks said when he was with them would be

inadmissible hearsay. Moreover, any testimony from Starks confirming that

Brooks was abandoned by Ibe in the McDonald’s parking lot was not

necessary, as there was no evidence or argument challenging Brooks’s

testimony on that fact and Ibe’s text message to Brooks with the location of

her car accident corroborated that they were not together after the shooting.

Finally, any testimony from Fra zier confirming he had invited Brooks to

Sacramento was not material to the issue of whether Brooks fled the scene.

As Brooks’s testified, he left the McDonald’s parking lot and went to a nearby

park, then to an Oakland BART station, then to Brentwood

, th en drove to

Livermore, then drove towards El Dorado Hills, then drove to Frazier’s house12

in Sacramento, and finally went to a motel. Brooks’s testimony regarding an

invitation to go to his sixth location after the shooting was not contradicted

by any othe r evidence or argument, and was not necessary for Frazier to

corroborate.

Third, Brooks claims that his trial counsel failed to hire an investigator

for the case. While counsel’s testimony at the Marsden hearing is unclear

about whether or not he actually hired an investigator, Brooks argues that an

investigator was critical here in order to locate Starks and Frazier so they

could serve as witnesses. Given our conclusion that trial counsel did not act

in competently by failing to call these witnesses, we reject this argument for

the same reasons.

In sum, we conclude that the trial court did not abuse its discretion in

denying Brooks’s Marsden motions.

B. The Trial Court Did Not Abuse Its Discretion in Admitti ng Jail

Letters

Brooks argues that his convictions should be reversed because the trial

court improperly admitted letters that Brooks sent from jail to Ibe.

Specifically, he contends that the trial court should have redacted the

“extremely lewd” sexually explicit statements in the letters under Evidence

Code section 352. We review this evidentiary ruling for abuse of discretion.

( People v. Jones (2017) 3 Cal.5th 583, 609.) “ ‘We will not reverse a court’s

ruling on such matters unless it is shown “ ‘the trial court exercised its

discretion in an arbitrary, capricious, or patently absurd manner that

resulted in a manifest miscarriage of justice.’ ” ’ ” ( Ibid. )

1. Additional Facts

A technician with the county sheriff testified that she had monitored

Brooks’s mail at the county jail. She observed that Brooks and Ibe had used

intermediaries outside the jail to try to send letters to each other. Six of13

these letters were seized during a search of Ibe’s jail cell. Brooks testified

that he wrote each of the let ters and mailed them to family or friends with

the intent that they would then be mailed to Ibe. Brooks also testified that

Ibe had been kicked out by her family when they started dating, and that Ibe

was “obsessed” with and “possessive” of him. Ibe was called by the

prosecution to testify as a witness, but refused to answer any questions even

with the grant of use immunity under section 1324.

Defense counsel objected to admission of these letters into evidence on

the ground that Brooks was not cross

- exa mined with regard to the specific

sentences in the letters. The trial court overruled the objection and admitted

the letters into evidence. The letters included, among other things,

declarations from Brooks that he loved Ibe, wanted to be a family with h er

and marry her, and would never leave her. The letters also included graphic

details of Brooks’s desire to have sex with Ibe.

After the jury had begun its deliberations, defense counsel stated that

he wanted to “add a 352 objection” because there was “ a lot of sexual content

to those letters that I think are more prejudicial than probative.” Defense

counsel also argued that the letters “are quite cumulative and repetitive.”

The trial court overruled the objections. It found that Brooks’s personal

rel ationship with Ibe was “inextricably intertwined with this case” and the

prosecution’s theory that Brooks was “manipulating [Ibe] psychologically” to

commit the crime, cover it up, and refuse to cooperate. It also found that the

chronology of the letters was relevant to this theory, as their contents

“became more and more provocative” as the case got closer to trial.

2. Analysis

Evidence Code section 352 vests the trial court with discretion to

exclude otherwise relevant evidence if “its probative value is s ubstantially14

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.” Here, Brooks argues that the

trial court abused this discretion by failing to redact the sexually explicit

statements because the remaining portions of the letters “provided abundant

support for the prosecution’s theory of psychological manipulation.” In other

words, Brooks claims that the sexu ally explicit statements in the letters “did

not add any additional probative value.”

We are not persuaded. As the trial court found, Brooks’s relationship

with Ibe was “inextricably intertwined with this case.” The prosecution

argued that Brooks had c onspired with Ibe to murder his son so that he could

avoid making child

- support payments, and was able to exploit Ibe and

convince her to shoot the child. Nor are we persuaded that the sexually

explicit statements had no relevance because they were cumula tive of other

statements in the letter. “Evidence may be relevant even though it is

cumulative; thus, the only ban on cumulative evidence is found in Evidence

Code section 352.” ( In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) The

letters to Ibe

— inclu ding both the romantic and sexual proclamations by

Brooks

— bore directly on the nature of their relationship and Brooks’s

purported ability to manipulate Ibe into committing the shooting and then

refusing to testify in his case.

Brooks also argues that an y probative value was outweighed by its

prejudicial impact because there was “a very serious risk that those obscene

statements would deeply offend one or more of the jurors.” Again, we are

unconvinced. “The prejudice which exclusion of evidence under Ev idence

Code section 352 is designed to avoid is not the prejudice or damage to a

defense that naturally flows from relevant, highly probative evidence.”15

( People v. Karis (1988) 46 Cal.3d 612, 638.) Instead, such prejudice arises

from evidence that “ ‘uni quely tends to evoke an emotional bias against the

defendant as an individual and which has very little effect on the issues.’ ”

( Ibid. ) As described above, Brooks’s writings to Ibe had a significant effect on

key issues in this case, which outweighed th e potential risk that the jury

would be offended by their explicitly sexual nature. We also consider the

broader context of the evidence when determining its potential for prejudice.

( People v. Ortiz (2003) 109 Cal.App.4th 104, 118.) Here, the sexually explicit

statements in the letters were far less inflammatory than the testimony

concerning the charged offenses

— involving the attempted murder of an 11

-

month old child and his mother

— making it “ ‘unlikely .

. . that the jury’s

passions were inflamed’ ” by the statements. ( Ibid. )

We thus conclude that the trial court did not abuse its discretion in

admitting the letters. Given our conclusion, we need not address Brooks’s

arguments that (1) the erroneous admission violated his due process rights,

and (2) t he error was prejudicial.

C. The Trial Court Did Not Abuse Its Discretion in Admitting Police

Sergeant Testimony Regarding a Jail Letter

Brooks argues that the trial court also abused its discretion by allowing

improper opinion testimony by a police sergeant regarding the contents of one

of the jail letters written by Brooks

.

1. Additional Facts

Police sergeant Steve Cesaretti testified that during his investigation of

the case, he had reviewed a May 2017 letter sent by Brooks. Brooks testified

that he had written the letter to Ibe because he had seen her on a transport

bus from jail to court and was “trying to uplift her and give me hope.”

Cesaretti testified that the letter referenced a song that he was

personally familiar with. When Cesaretti was asked why the lyrics as16

written in the letter caught his attention, defense counsel objected on

r elevance. The trial court overruled the objection. Cesaretti answered that

the lyrics were not from the real song, but instead “appeared to be directly

related to the details of the case” and “directing Ms. Ibe to say certain

things.” The letter describ ed lyrics from the perspective of the male rapper,

but then directed Ibe to “Flip the whole song.” Cesaretti testified that he had

previously looked for codes in monitored jail mail as part of his “criminal

street gang

- related training.” He stated that i t was “fairly common” that an

instruction to “flip” the song meant to change the pronoun from “he” to “she.”

Brooks testified that his letter did not contain the true song lyrics and that

when he wrote to “flip the whole song,” he meant to flip the pronou ns from

“he” to “she” and that the “she” referred to Ibe.

2. Analysis

Brooks argues that Cesaretti’s testimony about the meaning of Brooks’s

letter was improper opinion testimony. Brooks admits, however, that his

trial counsel objected to Cesaretti’s testimony only on relevance. We thus

conclude that Brooks forfeited this objection. ( People v. Lopez (1 978)

81 Cal.App.3d 103, 108 [“[O]bjections to evidence must state specific grounds

for exclusion, and the grounds cannot be changed on appeal”].)

Brooks contends that the argument, even if forfeited, is nonetheless

properly presented on appeal as part of a claim of ineffective assistance of

counsel. The test for ineffective assistance of counsel requires a criminal

defendant to establish both that his or her counsel’s performance was

deficient and that he or she suffered prejudice. ( Strickland v. Washingt on

(1984) 466 U.S. 668, 687.) “[I]f the record sheds no light on why counsel acted

or failed to act in the challenged manner, we must reject the claim on appeal

unless counsel was asked for an explanation and failed to provide one, or17

there could be no sa tisfactory explanation for counsel’s performance.” ( People

v. Castillo (1997) 16 Cal.4th 1009, 1015.) The record here sheds no such

light, and defense counsel’s decision not to object to the testimony as

improper opinion testimony may have resulted from a choice within the range

of reasonable competence. Moreover, given Brooks’s own testimony that he

changed the lyrics of the song and intended for Ibe to switch the pronoun

when she read it, it is unclear how Brooks could establish prejudice from the

admi ssion of Cesaretti’s testimony on the same topics. We thus reject

Brooks’s ineffective assistance of counsel claim.

Given our conclusion that Brooks forfeited this claim, we need not

address his arguments that (1) the erroneous admission violated his due

process rights, and (2) the error was prejudicial. Having rejected Brooks’s

claims of individual error, we also reject his argument that multiple errors

caused cumulative prejudice.

D. A Remand for Resentencing Is Required Due to Assembly Bill

No. 518

Brook s argues that this case should be remanded for resente ncing

because Assembly Bill No. 518 recently amended section 654 to give trial

courts discretion to impose a lesser punishment. The Attorney General

agree s remand is required here, as do we.

At the time of Brooks’ s sentencing, section 654 required the court to

punish an act that was punishable in different ways by different laws only

“under the provision that provides for the longest potential term of

imprisonment.” (Former § 654, subd. (a).) The t rial court therefore imposed

the sentence for count one and stayed execution of the sentence for count

four, which carried a shorter sentence than count one

.

After we issued our original opinion in this matter, Assembly Bill

No. 518 came into effect on Ja nuary 1, 2022. It amended section 654 to18

provide the trial court with discretion to choose the count for which it will

impose punishment

. (Stats. 2021, ch. 441, § 1

. ) The California Supreme

Court granted review and transferred the matter to us to reconsider our

decision in view of the amendment

.

The parties agree that Assembly Bill No. 518 applies retroactively to

this case because Brooks’ s appeal was not final at the time the amendment

came into effect

. We agree with th e parties’ conclusion. ( In re Estrada (1965)

63 Cal.2d 740, 744

– 745 [absent evidence of contrary legislative intent,

ameliorative criminal statutes apply to all cases not final when the statute

takes effect].) The court in People v. Mani (2022) 74 Cal.App.5th 343,

applying the Estrada rule

, found that Assembly Bill No. 518 applied

retroactively where , as here, the defendant’s appeal was not yet final. ( Id. at

p. 379

– 380

. )

We also agree with the parties that Brooks is entitl ed to be resentenced

by the trial court given the court’s new discretion under Assembly Bill

No. 518

. “ ‘ Defendants are entitled to sentencing decisions made in the

exercise of the “ informed discretion ” of the sentencing court. ’ ” ( People v.

Gutierrez (2014) 58 Cal.4th 1354, 1391.) Remand is therefore required

“ unless the record reveals a clear indication t hat the trial court would not

have reduced the sentence even if at the time of sentencing it had the

discretion to do so.” ( People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.)

Here, the record does not clearly indicate that the trial court would decline its

discretion under Assembly Bill No. 518 to stay the sentence on count one and

impose the sentence on count four. Alt hough the trial court found multiple

aggravating factors and only one mitigating factor, its reason for imposing

the sentence on count one and staying the sentence on count four was former

section 654

. Remand is therefore required in this case.19

Brooks further requests a remand for the trial court to consider the

applicability of “ ‘ other criminal justice reform legislation

. ’ ” The Atto rney

General admit s that Brooks may be entitled to the benefit of other legislative

changes because of the full resentencing rule, which permits the trial court to

revisit all prior sentencing decisions when part of a sentence is reversed on

appeal. ( People v. Valenzuela (2019) 7 Cal.5th 415, 424

– 425.) Thus, upon

remand, the trial court may revisit its prior sentencing decisions and consider

new legislation, including, but not limited to, Assembly Bill No. 518

.

D ISPOSITION

This matter is remanded fo r resentencing consistent with the views

expressed herein . In all other respects, the judgment is affirmed.20 _________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

East , J. *

*Judge of the Superior Court of the City and County of San Francisco,

assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

People v. Brooks A159421