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Filed 2/26/21 P. v. Gillard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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.

TODD LAMONT GILLARD JR.,

Defendant and Appellant.

 A155138

 (Contra Costa County

 Super. Ct. No. 05-141209-7)

Defendant appeals from a judgment of conviction, following a jury trial, 

of shooting at an occupied vehicle, street terrorism, being a felon in 

possession of a firearm, and resisting arrest. The trial court found true that

defendant suffered a prior serious felony conviction and sentenced him to a 

total term of 22 years eight months in prison. On appeal, defendant contends 

(1) the convictions for shooting at an occupied vehicle and felon in possession 

of a firearm must be reversed because the prosecutor committed misconduct 

during closing argument; (2) the one-year enhancement should be stricken; 

and (3) the case should be remanded to allow the trial court to exercise its 

discretion to strike the five-year enhancement pursuant to Senate Bill 

No. 1393 (2017-2018 Reg Sess.). He also asks this court to conduct an 

independent review of the trial court’s denial of his Pitchess1 motion. 

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2

The Attorney General does not oppose an independent review of the 

Pitchess ruling and concedes the one-year enhancement should be stricken, 

but maintains remand is unnecessary as to the five-year enhancement.

We order the one-year enhancement stricken, remand the matter to the 

trial court to consider whether to strike the five-year enhancement, and 

otherwise affirm the judgment.

BACKGROUND2

The district attorney filed informations relating to multiple defendants 

in two different cases, which were later consolidated by the court. As 

relevant here, defendant was charged with one count of conspiracy to commit 

murder (Pen. Code, § 182, subd. (a)(1)3—count 1, two counts of street 

terrorism (§ 186.22, subd. (a)—counts 2 & 5), attempted premeditated, 

deliberate, and willful murder (§§ 664, subd. (a), 187, subd. (a)—count 3), 

shooting at an occupied vehicle (§ 246—count 4), felon in possession of a 

firearm (§ 29800, subd. (a)(1)—count 6), and resisting arrest (§ 148, subd. 

(a)(1)—count 7). It was further alleged that counts 1, 3, 4, 6, and 7 were 

committed for the benefit of a criminal street gang (§ 186.22, subds. (b)(1) & 

(d)); that defendant personally and intentionally discharged a firearm

causing great bodily injury in the commission of counts 3 and 4 (§ 12022.53, 

subds. (b)-(e)(1)); that defendant had previously suffered a serious felony 

conviction for street terrorism (§§ 667.5, subd. (b), 186.22, subd (a), 1170.12, 

667, subds. (a)(1) & (b)-(i)) and had previously suffered a felony conviction 

which resulted in a prison term (§ 667.5, subd. (b)). 

2 Given the nature of the issues raised on appeal, we relay any 

relevant facts on an issue-by-issue basis below. 

3 All further statutory references are to the Penal Code unless 

otherwise indicated. 
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The jury convicted defendant of counts 2, 4, 6 and 7. It found 

defendant not guilty on the remaining counts and did not find true the gang 

and firearm use allegations. The trial court found true the section 667, 

subdivision (a)(1) and section 667.5, subdivision (b) allegations. 

The trial court sentenced defendant to 22 years eight months in prison, 

composed of a seven-year upper term for count 4 (shooting at an occupied 

vehicle) and two consecutive eight-month terms for counts 2 (street 

terrorism) and 6 (felon in possession of a firearm). The aggregate term of 

eight years four months was then doubled to 16 years eight months in 

accordance sections 667, subdivisions (e)-(i) and 1170.12, to which was added 

a consecutive five-year enhancement for the section 667, subdivision (a)(1)

finding and a consecutive one-year enhancement for the section 667.5, 

subdivision (b) finding.4 

DISCUSSION

Prosecutorial Misconduct

Background

The victim testified he was on his way to a mall when he noticed a red 

Camaro driving alongside him. He saw two people in the car and recognized 

the front passenger as defendant. Defendant was “laughing and smiling,” but 

the victim could not tell what the driver was doing. The victim decided to 

exit the freeway and saw the Camaro exit behind him. At an intersection, 

the Camaro merged into his lane and got directly behind him. The victim 

leaned down, looked in his rearview mirror, and saw “a hand out the right 

passenger window with a pistol.” Then “shots rang from the right side of the 

4 The court also imposed a consecutive one-year county jail term for 

count 7 (misdemeanor resisting arrest) which was “set separately” to the 

other counts. 
4

Camaro at my car.” The Camaro circled his car and drove away. He saw that 

defendant, who had a “smirk” on his face, was still in the front passenger seat

of the Camaro. The victim, who had been shot in the “upper left shoulder, 

back area,” drove to the mall and had someone call an ambulance. When 

officers arrived, the victim told them defendant had shot him. 

Defendant testified on his own behalf. According to defendant, he and 

two friends, whose names he could not recall, were driving to the mall. While 

on the freeway, the driver and the friend, who defendant said was in the front 

passenger seat, said someone was staring at them and pointed to the victim. 

Defendant, recognizing the victim, said, “ ‘That’s just [the victim] from North, 

he ain’t nobody,’ like ‘Don’t even trip off him.’ ” Defendant went back to 

playing a game on his phone, when he heard the front occupants say,

“ ‘Watch out.’ ” He put his head down, “thinking somebody going to start 

shooting at us.” He heard “[r]apid fire, like gunfire” and realized “the shots 

weren’t hitting our car, the shots was really going out.” Defendant thought, 

“ ‘Oh, they probably getting on them before they getting on us.’ ” When he 

realized they shot at the victim, he asked “ ‘What the fuck y’all do?’ ” The 

driver and passenger stated, “ ‘Man, he was reaching,’ ” indicating they 

thought the victim was reaching for a gun. Defendant stated he had known 

the victim for some time but there had “never been an issue” between the 

two. 

In closing argument, defense counsel stated that one of the 

prosecution’s theories was that defendant aided and abetted the shooting but 

argued “they presented no evidence. There’s nothing that’s been presented 

that [defendant] encouraged, facilitated, said ‘Get on ‘em. . . .’ [¶] And so if 

there was evidence that [defendant] in some way encouraged or aided or 

abetted, you could come back under this theory. . . . . [¶] . . . We do know that 
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you do have to live your life with your head on a swivel because somebody can 

take you down, take you out at any time if you’re [defendant]. So people are 

watching. And they say, ‘Why is this guy looking [at] the car, [defendant]?’ 

[¶] ‘He’s nobody. That’s [the victim.]’ [¶] Aiding and abetting. So just to be 

clear, I—I’m not going . . . to spend much time on the jury instruction. Being 

present doesn’t make you an aider or abettor.” 

During the prosecutor’s rebuttal, the following colloquy occurred:

“[Prosecutor:] In addition, the defendant testifies and he puts his 

credibility at issue. He says: I’m a good and honest man; well other 

than having a gun when I’m on felony probation. And other than 

ditching the gun where someone, even a kid, could find it. And lying to 

the cops when they’re looking for guns. And lying to the judge who sent 

me to prison. And saying I didn’t have a gun. And falsely accusing the 

cops of making that up. Other than that, I am a good and honest man.

[¶] . . . [¶] 

“The other thing that is frankly ironic about the argument you just 

heard from the defense is he says, ‘Well, he doesn’t want to snitch on 

these guys who were in the car with him on [the day of the shooting].’

[¶]

“So here’s what you’re being asked to believe by the defense. And this 

is key. You’re being asked to believe that he would be willing to get up 

here, lie under oath to protect other people, but would be honest and 

tell the truth about things that he did, that he wouldn’t lie to protect 

himself. He’s not going to snitch on other people. He’s going to not 

snitch on himself. He’s not going to tell the truth if the truth hurts 

him. If he’s willing to lie to protect others, he’s willing to lie to protect 

himself. [¶] 

“And frankly, if even the defense credited what the defendant said, 

remember how the defendant said: ‘Oh, this all just kind of happened 

at the last second. Suddenly, somebody goes “watch out, watch out,” 

and then shooting happened. I had no idea it was going to happen.’

“If the defense wanted you to believe that testimony, and said, ‘Oh, 

well, he was telling the truth about that,’ they would have asked for a 
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self-defense or imperfect self-defense instruction. They would have 

said, ‘Well, wait a minute, even if he was involved in what happened’—

“[Defense Counsel]: Objection.

“[Court]: Sustained.

“[Prosecutor]: Okay. But that’s how ridiculous the defendant’s story is, 

that suddenly these guys out of the blue, but that’s the only evidence. 

And, again, you have no self-defense or imperfect self-defense 

instructions.

“[Defense Counsel]: Objection.

“[Court]: Sustained.” 

Analysis

Defendant maintains the prosecutor committed misconduct by 

improperly shifting the burden of proof. 

The Attorney General asserts defendant forfeited this issue by failing

to object on that ground and failing to request a curative admonition. 

We agree the issue was forfeited. “ ‘ “[A] defendant may not complain 

on appeal of prosecutorial misconduct unless in a timely fashion—and on the 

same ground—the defendant made an assignment of misconduct and 

requested that the jury be admonished to disregard impropriety.” ’ ” (People 

v. Pearson (2013) 56 Cal.4th 393, 426.)

Anticipating forfeiture, defendant urges us to consider his claim as one 

for ineffective assistance of counsel (IAC). 

To establish ineffective assistance of counsel, “the defendant must first 

show counsel’s performance was deficient, in that it fell below an objective 

standard of reasonableness under prevailing professional norms. Second, the 

defendant must show resulting prejudice, i.e., a reasonable probability that, 

but for counsel’s deficient performance, the outcome of the proceeding would 
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have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) A 

reviewing court can conclude an IAC claim lacks merit without deciding 

whether counsel’s performance was deficient if the record shows lack of 

sufficient prejudice. (In re Ross (1995) 10 Cal.4th 184, 204; Strickland v. 

Washington (1984) 466 U.S. 668, 697 [“there is no reason for a court deciding 

an ineffective assistance claim to . . . address both components of the inquiry 

. . . [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack 

of sufficient prejudice . . . that course should be followed”].) 

Here, there was no prejudice. The court instructed the jury that the 

prosecution had the burden of proof; that the only evidence the jury could 

consider was “the sworn testimony of witnesses, the exhibits admitted into 

evidence, and anything else” the court said could be considered as evidence; 

that “[n]othing that the attorneys say is evidence,” including what they say in 

“their opening statements and closing arguments”; and if the jurors believed

the “attorneys’ comments on the law” conflicted with the court’s instructions, 

then they “must follow” the court’s instructions. The trial court also 

sustained defense objections to some of the prosecutor’s questions and 

instructed the jury to ignore testimony for which an objection had been 

sustained, emphasizing only admissible evidence could be considered. “ ‘We 

presume the jury understood and followed’ ” the trial court’s instructions and 

directives. (People v. Sanchez (2019) 7 Cal.5th 14, 55.) In addition, the 

objected-to comments were only a fraction of the prosecutor’s closing 

argument. 

There was also abundant evidence tying defendant to the shooting. 

The victim positively identified defendant as the front passenger in the car

and told officers shortly after the incident that defendant shot him.

Defendant himself testified that he was in the Camaro, that the other two 
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passengers told him there was a gun and ammunition in the car, and that 

after the shooting, he removed his ankle monitor, data from which showed 

defendant in the area on the date and time of the shooting and which was 

later found in a dumpster along with ammunition of the type fired at the 

victim. 

In sum, there is no reasonable probability that but for counsel’s 

asserted failure to object to the prosecutor’s closing argument the outcome 

would have been different. We therefore reject defendant’s IAC claim 

Five-Year Enhancement5

Defendant asserts the case must be remanded to allow the court to 

exercise its discretion to strike the section 667, subdivision (a)(1) 

enhancement.

Effective January 1, 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) 

vested sentencing courts with discretion to strike enhancements imposed 

under section 667, subdivision (a) for prior serious felony convictions. (People 

v. Ellis (2019) 43 Cal.App.5th 925, 933; People v. Garcia (2018) 

28 Cal.App.5th 961, 971.)

Where “the record shows that the trial court proceeded with sentencing 

on the . . . assumption it lacked discretion, remand is necessary so that the 

trial court may have the opportunity to exercise its sentencing discretion at a 

new sentencing hearing. [Citations.] Defendants are entitled to ‘sentencing 

decisions made in the exercise of the “informed discretion” of the sentencing 

court,’ and a court that is unaware of its discretionary authority cannot 

exercise its informed discretion.” (People v. Brown (2007) 147 Cal.App.4th

5 As previously mentioned, the trial court also imposed a one-year 

enhancement pursuant to section 667.5, and the Attorney General concedes 

this enhancement should be stricken. 
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1213, 1228.) However, when the record shows that “ ‘the trial court would 

not have exercised its discretion even if it believed it could do so, then 

remand would be an idle act and is not required.’ ” (People v. Gamble (2008) 

164 Cal.App.4th 891, 901.) 

The Attorney General agrees Senate Bill No. 1393 (2017-2018 Reg. 

Sess.) is applicable, but claims remand is unnecessary. While acknowledging 

the trial court “did not explicitly state it would not strike the . . . 

enhancement if given the discretion to do so,” he contends the court’s “intent 

. . . was clear” given the court’s comments in denying defendant’s Romero 

motion6 to dismiss his prior strike,7 and in explaining “what it saw as 

‘circumstances in aggravation.’ ”8 

6 Under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 

the court may in certain cases and in the interest of justice strike an 

allegation of a prior felony conviction. 

7 In denying defendant’s Romero motion, the court stated it had 

considered the nature of defendant’s present offense as well as those of the 

prior strike and determined “there is no indication whatsoever that the 

defendant has reformed.” Defendant had “continued to associate with gang 

members and commit serious violent crimes,” had “not complied with any 

grant of probation,” and had an “extensive history of criminal conduct.” 

8 In explaining the “circumstances in aggravation,” the court stated the 

“crime involved great violence, great bodily harm and viciousness”; the victim 

was shot and wounded in broad daylight on a busy public thoroughfare; 

defendant was “within hours from his release from custody” when the victim 

was shot, who was not a gang member but “just happened to be innocently 

out driving and targeted”; defendant is an “active participant in street 

terrorism and was convicted of this crime”; defendant had “been involved in 

multiple shootings” and had “an ongoing history of gun possession and gun 

violence,” all of which indicated a “serious danger to society” and a “pattern of 

regular or increasing serious criminal conduct”; and he was on parole at the 

time the crime was committed. The court found no circumstances in 

mitigation. 
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The Attorney General cites to two cases. The first is People v. McVey

(2018) 24 Cal.App.5th 405, 409 which involved a firearm enhancement. 

Under the applicable statute, the trial court had discretion to impose a low, 

middle or high term. During sentencing, the court stated “ ‘the high term . . . 

[was] the only appropriate sentence’ ” on the enhancement. (Id. at p. 419.) 

The Court of Appeal concluded remand was unnecessary “[i]n light of the 

trial court’s express consideration of the factors in aggravation and 

mitigation, its pointed comments on the record, and its deliberate choice of 

the highest possible term for the firearm enhancement.” (Ibid.) 

The second case is People v. Jones (2019) 32 Cal.App.5th 267, 272

which, as here, involved a five-year enhancement under section 667, 

subdivision (a)(1). The Court of Appeal concluded remand was unnecessary 

given the trial court’s statements when denying the defendant’s motion for 

new trial and during sentencing. (Id. at pp. 273-274.) Additionally, on the 

only count where the trial court “could have exercised leniency in sentencing 

. . . it did not”; rather, the court, despite already having imposed a life term 

with parole, imposed the maximum term “knowing that when doubled, the 

term would add two additional years to defendant’s sentence over what he 

would have served had the court imposed the midterm.” (Id. at p. 274.)

The circumstances here are different. Although the trial court imposed 

a significant sentence—22 years and eight months—as requested by the 

prosecution, and which included the high term for count 4 (shooting at an 

occupied vehicle) and the misdemeanor resisting arrest count, the court 

imposed one-third the midterm for counts 2 (street terrorism) and 6 (felon in 

possession of a firearm). And while it is clear the court was of the view 

defendant should receive a stiff sentence, we cannot conclude that its 

comments were so unequivocal as to exclude the possibility the court would 
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exercise its discretion afforded under Senate Bill No. 1393 (2017-2018 Reg. 

Sess.) to strike the section 667, subdivision (a) enhancement. (See People v. 

McDaniels (2018) 22 Cal.App.5th 420, 428 [remand proper; although court 

“imposed a substantial sentence . . . it expressed no intent to impose the 

maximum sentence,” it imposed the midterm for being a felon in possession of 

a firearm and ran it concurrently to the principle term, and struck four prior 

convictions it had found true].)

Pitchess Review

Prior to trial, defendant filed a Pitchess motion seeking disclosure of 

personnel records pertaining to Department of Justice Special Agent Michael 

Mattson and another officer.

9 Defendant sought documents maintained by 

the Contra Costa District Attorney’s Office or the California Department of 

Justice pertaining to Mattson, which recorded or reflected “illegal/false arrest 

or detention;” “filing false charges;” or “conduct reflecting discredit, including 

but not limited to fabrication of evidence and dishonesty.” The Attorney 

General and Department of Justice filed an opposition brief. The trial court 

granted the motion and held an in-camera hearing with the litigation 

coordinator from the Department of Justice. The court concluded “there was 

no discoverable items.” 

In his opening brief, defendant asked this court for an independent 

review of the in-camera hearing to determine if the trial court abused its 

discretion. We ordered the trial court to provide us with the sealed transcript

of the Pitchess proceedings, and the Attorney General does not object to the 

requested review. 

Pitchess establishes that “a criminal defendant [can] ‘compel discovery’ 

of certain relevant information in the personnel files of police officers by 

9 Agent Mattson testified regarding 2008 uncharged crimes evidence. 
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making ‘general allegations which establish some cause for discovery’ of that 

information and by showing how it would support a defense to the charge 

again him.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019; 

see §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.) 

“If the trial court concludes the defendant has fulfilled these 

prerequisites and made a showing of good cause, the custodian of records 

should bring to court all documents ‘potentially relevant’ ” or “potentially 

responsive to defendant’s specific request.” (People v. Mooc (2001) 26 Cal.4th 

1216, 1226, 1228-1230.) The trial court must make a record of the documents 

it examines in ruling on defendant’s motion sufficient to allow for appellate 

review. (Id. at p. 1229.) The trial court may photocopy the documents and 

place them in a confidential file, prepare a list of the considered documents, 

or “simply state for the record what documents it examined.” (Ibid.) The 

hearing transcript and any relied-upon documents copied for the record must 

be sealed. (Ibid.) On appeal, we review the “record of the documents 

examined by the trial court” to determine if the court abused its discretion in 

failing to disclose any records. (Ibid.)

Having independently reviewed the sealed transcript of the Pitchess 

proceeding, we conclude the court sufficiently complied with proper Pitchess 

procedures and did not erroneously withhold any information. (People v. 

Fuiava (2012) 53 Cal.4th 622, 646-648.)

DISPOSITION

The matter is remanded to allow the trial court to consider whether to 

strike the five-year enhancement imposed under section 667, subdivision 

(a)(1). The court is also directed to strike the one-year enhancement imposed 

under section 667.5, subdivision (b). In all other respects, the judgment is 

affirmed.
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_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Margulies, J.

A155138, People v. Gillard