Filed 3 / 29 / 21 P. v. Naranjo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Resp ondent,

v.

FERNAND O NARANJO,

Defendant and Appellant. 2d Crim. No. B299429 (Super. Ct. No. BA473763) (Los Angeles County)

Fernando Naranjo appeals from the judgment after a jury convicted him of first degree premeditated murder ( Pen. Code, 1 § § 1 87 , subd. (a) , 189, subd. (a) ) and found true an allegation that he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced him to 25 years to life in state prison on the murder
and a consecutive 25 years to life on the firearm e nhancement.

Naranjo contends the judgment should be reversed
because the trial court err ed when it: (1) denied his

1 Unlabeled s tatutory references are to the Penal Code.2

Batson / Wheeler 2 motion, (2) permitted a detective to identify him
in surveillance video s , (3) excluded por tions of his police interview from the jury, (4) gave an incomplete jury instruction on imperfect self

- defense, and (5) instructed the jury on flight. He further contends reversal is required because: (6) the prosecutor committed misconduct, (7) defense counsel provided
ine ffective assistance, and (8) these errors, considered cumulatively, denied him a fair trial. Alternatively, Naranjo

argues the matter should be remanded for resentencing: (9)
because the court abused its discretion when it declined to strike
the firearm enhancement, (10) to permit the court to impose a lesser firearm enhancement, and (11) because the cour t declined to order a probation report prior to sentencing. We affirm

.

FACTUAL AND PROCEDURAL HISTORY Naranjo and J

. C o. were outsid e a 99 Cents Store i n Los Angeles. Naranjo retrieved something from his car, walked up to A.M., and said, “What’s up, Guerito?” J.Co. saw that Naranjo was holding a gun, and ran across the street. Naranjo
shot A.M. once in the head and walked away , taki ng off the vest
he h ad been wearin g as he walked down the street.

J

. Ce

. was working across the street from the shooting . He witnessed a man pull a gun from his waistband , say

“ [ y ] ou are going to die

, ” and fire one shot. The man then turned
and walked sl owly down the street

. He thr e w his vest over a fence as he walked.

When police arrived, J. C e. and J. C o. each told the
officers that the shooter had stashed a vest that may have a gun
inside. An officer later found the vest wedged in a nearby gate.

2 Batson v. Kentuc ky (1986) 476 U.S. 7 9 ( Batson ); People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler )

.3 The next day

, police arr ested Naranjo at S.M.’s apartment. J.Co. later ide ntified Naranjo as the shooter. J. Co

. also told police that Naranjo may have left his gun at S.M.’ s apartment. Detective Eloy Ochoa interviewed Naranjo, who told him where the gun was hidden. When polic e retrieved it, it had
four unfired bullets and one fired cartridge inside.

Ballistics revealed that the bullet re cover ed from
A.M. ’s head had been fired from the gun found in S.M. ’s
apartment. A mixture of three DNA profiles was on t he gun. Naranjo ’s D NA was the primary contributor to the mixture

.

S urveillance cameras at several nearby businesses
covered the scene of the shooting

. Video footage from o ne of the
cameras showed A.M. riding his bicycle toward the 99 Cents
Store and Nar anjo running d o w n th e opposite side of the street. Footage from a nother camera showed Naranjo shoot A.M. in the
head and walk away. Footage from a third also captured the shooting.
Detective Ochoa show ed a six

- pack photo array to
witnesses. Three men w ho were working near by the 99 Cents Store on the day of the shooting , including J. Ce

. , viewed the photo array

, but none w as able to identify Naranjo. Two of the
witnesses believed another man resembled the shooter.

When Detective Ochoa interviewed Naranj o, he said
he had be en threatened by “Guero ” and “ Jorge” : “[T]hey’ve been threatening me. And like I said, if I didn’t do it, they were going to fuck me over anyway.” Detective Ochoa understood “do it”

mean t shooting A.M

. Naranjo claimed that he had re ported
Guero and Jor ge’s threats to police on the morning of A.M.’s shooting, but the detective could not corroborate that claim.4 DISCUSSION
Batson / Wheeler motion Naranjo first contends the judgment should be reversed because the prosecutor’s reasons for excluding seven
Lati nx jurors were pretextual. We disagree

. 1. Legal framework The state and federal constitutions forbid prosecutors from using peremptory challenges to remove jurors on account of

race. 3 ( Batson

, supra , 476 U.S. at p. 89; Wheeler

, sup ra , 22
Cal.3d at pp. 276

- 277.) To succeed on a Batson / Wheeler motion, a
defendant must first “ make a prima facie showing that the prosecut[or] exercised a challenge based on impermissible criteria.” ( People v. Manibusan (2013) 58 Cal.4th 40, 75 ( Manibusa n ).) If the defenda nt does so, t he prosecut or must

“ offer nondiscriminatory reasons for the challenge.” ( Ibid. )
These reasons “‘ need not support a challenge for cause ,’” and may include such “‘“trivial”’” things as “ facial expressions, gestures, [and] h unches.” ( People v. Lenix (2008) 44 Cal.4th 602, 613 ( Lenix ), italics omitted .) The trial court must then determine whether the prosecut or ’s proffered reasons are “ credible and whether, in light of all relevant circumstances, the defendant has shown purp oseful race discrimi nation.” ( Manibusan , at p. 75. ) “‘The ultimate burden of persuasion regarding discriminatory motivation rests with, and never shifts from, the defendant.’ [Citation.]” ( Ibid.

, alterations omitted.)

“ On appeal, we review the trial c ourt’s
determination [s] deferentially, ‘examining only whether

3 Code of Civil Procedure section 231.7, which becomes effective in jury trials commencing January 1, 2022, does not apply. (Code Civ. Proc., § 231.7, subd. ( i ).)5

substantial evidence supports its conclusions. [Citation.]’ [Citation.]” ( Manibusan

, supra , 58 Cal.4th at p. 76.) “‘We presume that a prosecutor uses peremptory challenges in a
constitutiona l manner[,] and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.]’” ( Ibid. ) We will defer to the court’s ruling s “‘[s]o long as [it] makes a sincere and reasoned effort to evaluate
the nond iscriminatory justif ications offered.’” ( Ibid. ) If the court does so, and “ the prosecutor’s reasons for excusing [a] juror are neither contradicted by the record nor inherently implausible,” we will reject a defendant’s Batson / Wheeler challenge on appeal

. ( People v. Reynos o (2003) 31 Cal.4th 903, 929 ( Reynoso ).)

2. Prospective Juror 7134 Prospective Juror 7134 had no prior jury experience. Neither the prosecutor nor defense counsel asked her any direct questions, nor did she volunteer any answers to t he general questions asked of her venire

. The prosecutor said she excuse d this juror “ mainly due to her demeanor. ” She “seemed very

. . . quiet ” and “ was not really engaging

. . . when I was

. . . asking general questions of the group. ” The prosecutor w as also
concerned th at, based on the potential juror’s lack of response to questions about being a lone holdout, that “ maybe she [was] one of those people who would kind of just follow the group. ”

Naranjo claims that the prosecutor’s “‘[d]emeanor

based ex planation[]’ [was] ‘ particularly susceptible to serving as [a] pretext[] for discrimination.’” (Citin g United States v.
McMath (7th Cir . 2009) 559 F.3d 657, 665

- 666.) But a prosecutor may excuse a juror based on their demeanor during voir dire. ( People v. DeHoyos (2013) 57 Cal.4th 79, 109 ( DeHoyos ) .) And they may “ legitimately choose to shy away from

. . . unduly timid6

jurors.” ( People v. Duff (2014) 58 Cal.4th 527, 546 ( Duff ) .) This is
true even if t hat timidness is “ not explicitly confirmed by the

r ecord.” ( People v. Mai (2013) 57 Cal.4th 986, 1052 ( Mai ) .) So long as the record does not contradict the prosecutor’s observations of the potential juror’s demeanor

— as i s the case
here

— we cannot say t he trial court erred. ( Ibid. )

3. Prospective Juror 7 584 The prosecutor said she excused Prospective Juror
7584 due to “ some language restrictions. ” When t he trial court asked whether the prosecutor inquired of the p rospective juror’s language ability, the prosecutor repli ed that her decision was “just bas ed on [the juror’s] responses. ” She continued: “ I don’t think it rose to the level of her being unable to [ serve ]

. My concern was there could have been some type of restriction that could arise from that, and so to be safe, I chose to kick her. ”

Diffic ulty speaking or und erstanding the English language is a permissible, race

- neutral reason for a peremptory challenge. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 107

- 108 ( Jurado ) ; People v. Ayala (2000) 24 Cal.4th 243, 266

- 267 ( Ayala ) .) Naranjo cl aims, however, that “ there was no indication [that Prospective Juror 7584 ] had any language issues when she
answered the [trial] court’s questions. ” But neither the court nor defense counsel contradicted the prosecutor’s description of the

p rospective j ur or ’s language abilit ies during voir dire . That suggests the description was accurate. ( People v. Adanandus (2007) 157 Cal.App.4th 496, 510 ( Adanandus ) .) 4. Prospective Juror 3570

Prospective Juror 3570 was a single “young woman”
who worked as an assist ant softball coach a nd had no prior jury7

experience . The prosecutor exercised a peremptory challenge against her due to a perceived “ lack of life experience. ” The prosecutor explained: “ She, you know, didn’t have a

— necessarily a career yet, is single, n o children, and she just struck me as a person maybe lacking enough life experience, I think, to

— for

me

— t o serve on this jury or that I would like on this jury. ”

Naranjo claims the prosecutor’s reason for dismissing Prospective Juror 3570 was pretextual b ecause “ it is implau sible that the prosecutor would have excused every single, childless [] juror [,] regardless of race. ” But the prosecutor emphasized that she excused this potential juror based on her lack of life experience. And “ [a] potential juror’s youth and apparent
i mmaturity are race

- neutral reasons that can support a peremptory challenge.” ( People v. Lomax (2010) 49 Cal.4th 530, 575; see also DeHoyos

, supra , 57 Cal.4th at p. 108.)

Alternatively, Naranjo claims that the prosecutor’s
reason for c hallenging Prospecti ve Juror 3570 was pretextual because she did not challenge seven other jurors that purportedly
shared her characteristics

. But we can undertake comparative juror analysis for the first time on appeal only if “ the record is adequate to permit the urged com parisons.” ( Lenix

, supra , 44 Cal.4th at p. 622.) The pages of the record Naranjo cites in support of t his claim in his opening brief do not permit those comparison s , lacking, at various points, information about each juror ’s race, mar ital status, or chil dren. 4

4 Naranjo attempts to support his comparative juror analysis claim with fuller argument and better citations to the record in his reply brief. We do not consider these belated arguments here. ( People v. Rangel (2016) 62 Cal.4th 1192, 1218 ( Rangel ).)8 5. Prospective Juror 2339 When the prosecutor asked whether anyone felt that they could not convict if they did not know why a defendant had
committed a crime, Prospective Juror 2339 said, “It would be
hard for me [¶]

. . . [¶] because without the motivation, maybe I would feel that your accusation

— t he crime that you’re accusing the person of is not the right crime.” The trial court then asked if
the prospective juror saw someone hit another person with a bat,
“in order to conv ict [them] , are you going to want to know why [they] took a bat to that person?” The juror said , “[I] t’s unfair to the jurors. It’s unfair to us because we don’t [¶]

. . . [¶] hear their position

— I would like to know the motive.”

The trial court clarifi ed: “[Y] ou couldn’t convict because you would want to know why?” The prospective juror responded that he “would make a decision, but you make me
doubt too much. So I guess it’s their job to move me to guilty or not guilty.” The court then reiterated th at it would instruct jurors that motive is not an element of murder. The juror said, “Most likely

, if I don’t have the m otive, I would say not guilty.”

The prosecutor explained her decision to excuse Prospective Juror 2339: “ I had some concern over his responses to some of the court’s questions having to do with motive, and my concern was that he would not be an appropriate juror on this
case for that reason.” The court responded, “Actually, I was surprised you didn’t raise it for cause with regard to t hat person.” The pr osecutor repli ed that she did not believe “it rose to the level of cause, but [she] did mak e note of it for a peremptory.”

Naranjo claims the prosecutor’s reason for challenging Prospective Juror 2339 was pretextual because the juror’s answers did not ref lect “an unwillingnes s to follow the9

law” on motive. But he repeatedly stated his desire to know the
defendant’s motives , which provid es substantial evidence to support a finding he was reluctant to follow the law . ( People v. Smith (2 018) 4 Cal.5th 1134, 1148

- 1150, 1155

- 1158.) And a potential juror’s reluctance to follow the law is a “ valid, race

neutral reason[] for exercising a peremptory challenge.” ( People v. Smith (2019) 32 Cal.App.5th 860, 873.)

6. Prospective Juror 2722
The prosecutor said she excus e d Prospective Juror
2722 based on his “very expressive” appearance: “ He had a lot of tattoos; not that that is good or bad, but it caused me to wonder if he does have any, umm, differing views about things sort of outside the, li ke, societal norms o n some issues. ”

Naranjo claims we should reject the prosecutor’s proffered justification for excus ing this p rospective j uror because “the court did not make any specific findings regarding whether

. . . it was appropriate for the prose cutor to challenge t he juror because he had tattoos and his ‘outward appearance was very expressive

. ’” But a prospective juror’s “unconventional appearance” can provide a race

- neutral basis for a peremptory challenge. ( People v. Ward (2005) 36 Cal.4th 18 6, 202.) “ It

matter s not that another prosecutor would have chosen to leave the prospective juror on the jury. ” ( Reynoso

, supra , 31 Cal.4th at p. 924.) “ Nor does it matter that the prosecutor , by peremptorily excusing [people with unconventional appeara nces], may be passin g over any number of conscientious and fully qualified potential jurors. ” ( Ibid. ) “ All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being

no ndiscriminatory. ” ( Ibid. )10 The trial court here concluded that it was. And we must defer to that conclusion so long as the court undertook a sincere evaluation of the prosecutor’s justifications for excusing jurors. ( Manibusan

, supra , 58 Cal.4th at p. 7 6.) Naranjo makes

n o claim that the court failed to undertake such an evaluation.

7. Prospective Juror 5992
Defense counsel asked Prospective Juror 5992 ’s
venire whether any of them would be inclined to change their decision to go along with the group i f they were the lone holdout

. Prospective Juror 5992 replied, “I would think that maybe I’m not understanding, and because [if] 99 percent of everyone else is sticking to one side, then I probably have it wrong.” Counsel
then asked whether t he prospectiv e juror would stick with it or “go along with the grou p” if

, after further discussion

, she still felt her decision was right

. She answered, “I would pro bably still go with the group.”

The trial court explained that jurors should make an independent decis ion based on the evi dence and deliberations. If, after deliberations, a juror still believed that they were right, they should stick to their decision, but if they genuinely changed their mind, they should change their decision. The court then
asked juro rs whether they woul d be able to “ stick by [their]
decision [s].” Prospective Juror 5992 said s he would. The prosecutor nevertheless excuse d this p rospective j uror because
she was not “ entirely convinced ” that she would f ollow the court’s
instructions.

P rosecutors may excus e jurors who appear to be “followers.” ( Duff

, supra , 58 Cal.4th at p. 546 .) Naranjo claims this rationale could not have applied to Prospective Juror 5992 because the prosecutor did not excuse another juror who similarly11

indicated a w illingness to “ ‘ go w ith the other jurors. ’ ” But on the pages cited in his brief, two prospective jurors offered answers similar to those offered by Prospective Juror 5992

. His attorney excused one of them, while the prosecuto r excused the other. Naranjo ’s attempt to show t he prosecutor’s reason was pretextual accordingly fails. 8. Prospective Juror 0939

Prospective Juror 0939 had to be prompted by the
trial court to p rovide his initial information. He did not volunteer

any additional information

, and was not directly ask ed any other questions. The prosecutor said she excuse d Prospective Juror
0939 because “ [h] is responses to the initial questions

. . . were difficult

. . . to understand.” When t he court asked for clarification, the prosecutor said th at the prospective j uror’s accent “made it difficult for [her] to understand.” She also noted
that he “ ha [d] to ask for questions to be repeated before he answered them, which indicated

. . . there could be maybe some type of a language restriction there. ”

A juror’s difficu lty speaking or understanding the English language is a race

- neutral reason for exercising a peremptory challenge. ( Jurado

, supra , 38 Cal.4th at pp. 107

- 108; Ayal a , supra , 24 Cal.4th at pp. 266

- 267.) Naranjo claims that the
prosecutor could not have reli ed on this reasoning because neither the trial court nor defense counsel had any trouble
unders tanding Prospective Juror 0939. But when reviewing the
denial of a Batson / Wheeler motion, our role is to determine
whether substantial evide nce supports the tri al court’s findings. ( Manibusan

, supra , 58 Cal.4th at p. 76.) Here, the court had to prompt Prospective Juror 0939 for his initial answers. And when12

the prosecutor described why she excluded him from the jury panel, neither the court nor defense counsel contradicted her

, suggesting her description was accurate. ( Adanandus

, supra , 157 Cal.App.4th at p. 510.) We thus cannot say that the trial court erred when it accepted the prosecutor’s reason for excluding this juror. ( Mai

, supra , 57 Cal.4th at p. 105 2.) Naranjo’s
Batson / Wheeler challenge accordingly fails.

Surveillance video identifications Naranjo next contends the trial court erred when it permitted Detective Ochoa to identify him in the surveillance
video s played at trial

. Bu t Naranjo did not ob ject to the
identifications during the proceedings below

. H is contention is forfeited. ( People v. Huggins (2006) 38 Cal.4th 175, 236; see Evid. Code, § 353, subd. (a). ) And even if it weren’t, Naranjo has not
shown that the court abu sed its discretion w hen it permitted
D etective Ochoa to identify him in the videos . (Cf. People v. Leon (2015) 61 Cal.4th 569, 600 ( Leon ) [admission of identification evidence reviewed for abuse of discretion].) 1. Background At trial, the prosecutor pl ayed surveillance vi deo footage that showed the shooting of A.M . When Detective Ochoa began to describ e the location and perspective of the first video, Naranjo objected “to publication without foundation.” He did not object w hen the d etective subsequent ly identified J. Co

. in the
video , however. The prosecutor then showed a portion of video that depicted “a person on the opposite side of the street riding a bicycle” and asked the detective if he had “an opinion as to who that person [was] .” Naranjo obje cted on foundation g rounds. The
trial court a sk ed Detective Ochoa to explain how he recognized that person. The detective said that he “believe[d] th [e] person in13

the upper left

- hand corner [of the video] to be the victim riding his bicycle” because that person “appear [ed] to be wearing the same clothing that was found

— or at least the tank top that was
found

. . . at the crime scene.”

Detective Ochoa later described a person running
down the opposite side of the street from where the victim had
ridden hi s bicycle. When t he prosecutor asked if t he detective had an opinion as to the identity of that person, he said that he
believed it was Naranjo based on his facial hair, hairstyle, and
mannerisms. He also agreed with the prosecutor that the person’s clot hes appeared to be “ consistent with the clothing descriptions that were provided by the witness[es] in this case

. ” Naranjo did not object

.

When Detective Ochoa identified A.M.

, J. Co

. , and Naranjo in a second video, Naranjo again did not object. But
when the detective descr ibed what “appear [ed] to be the victim” standing in front of the 99 Cents Store , Naranjo objected on foundation grounds

. The trial court admonished the jury: “The video will speak for itself, ladies and gentlemen. You can interpret i t as you wish but ba sed on what the [detective] stated that it appears to be based on his knowledge of the case.”

Detective Ochoa identified A.M., J.Co., and Naranjo in a third video. He again explained that he based his
identifications on his knowledge of the case and havi ng viewed
the different videos

. He also considered witnesses ’ statements,
which corroborated what he had seen in the video s. Naranjo did

not o bject to these identifications. 2. Analysis Citing the secondary evidence rule, Naranjo fi rst clai m s that Dete ctive Ochoa’s testimony was inadmissible to14

prove the contents of the surveillance video. But that rule does not apply where, as here, the video itself was admitted into evidence and the purpose of the witness’s testimony was to “highl ight important detai ls in [it].” ( People v. Son (2020) 56 Cal.App.5th 689 , 696.)

Naranjo next claims that Detective Ochoa’s identification was an improper opinion on the ultimate issue of guilt. (See People v. Vang (2011) 52 Cal.4th 1038, 1048 [witness may not opine on def

endant’s guilt].) But a nonexpert witness

“ may offer opinion testimony if it is rationally based on the witness’s perception and helpful to a clear understanding of [their] testimony. ” ( Leon

, supra , 61 Cal.4th at p. 601; see Evid.
Cod e, § 800.) And iden tity is “‘ a proper subject of nonexpert opinion. ’ [Citations.]” ( Leon

, at p. 601, alterations omitted.) Indeed, court decisions “ have long upheld admission of testimony identifying defendants in surveillance footage or photographs

. ” ( Ibid. )
Detective Ochoa ’s testimony easily met the Leon standards for admission. First, the detective explained that he was able to identify Naranjo in the surveillance videos based on his personal knowledge of Naranjo’s appearance. That he
obtained th at knowledge after t he murder of A.M. rather than
before is irrelevant. ( Leon

, supra , 61 Cal.4th at p. 601.) Second,
Detective Ochoa’ s opinion did not “invade the province of the trier of fact” because it was proffered as “an aid in the determination
of the ultimate questio n of the identity of the culprit.” ( People v. Perry (1976) 60 Cal.App.3d 608, 615.) That was especially true
here since “jurors could make up their own minds about whether the person shown [in the videos] was [Naranjo].” ( Leon , at p. 601.) Thus, becaus e Detective Ochoa’s testimony was based on15

personal knowledge and was helpful to the jury, the trial court did not abuse its discretion when it permitted him to identify Naranjo in the surveillance videos. ( Ibid. )

Exclusion of portions of police interview Next, Naranjo contends it was error for the trial court to exclude the portions of his police interview in which he
described how he obtained his firearm. We are not persuaded

. 1. Background
Duri n g his interview with Detective Ocho a, Naranjo
said that he had hidden a gun at S.M.’s house

. He also said that he had the gun because “a guy told [him] to go get it because he was afraid of getting it himself.” The d etective asked Naranjo
whether the gun ha d “ anything to do with what happ ened ”
outside the 99 Cents Store. Naranjo replied , “Obviously, yes,
because that’s what people have been saying.”

Prior to trial, t he prosecut or moved to admit portions
of the interview

. T he trial court reviewed the transcript and
ruled that the discuss ion about where Nara njo’s gun was hidden was admissible. Defense counsel requested that the court additionally admit the portion of the transcript that described

“ how [Naranjo] obtained the gun and why the gun was located
there. ” S he claimed that those f acts were relevant a nd helped to put Naranjo’s en tire statement in context.

The trial court reviewed the transcript again and said, “It says that he got the gun from somebody, that a guy told him to get the gun. It doesn’t say that the guy told him to pl ace it
there

. . . [ or] that’s why it was located there.” Defense counsel again argued that “the fact that someone else gave him the gun is relevant as far as putting the entire statement into context.”16 At trial , Detective Ochoa testified that Naranjo to ld
him that someone had given him the gun. He agreed that it was “a possibility” that Naranjo could have been referring to hiding the gun for th at person when he said, “ [I] f I didn’t do it, they were going to fuck me over anyway

. ” Naranjo did not renew h is request to admit the excluded portions of his interview after
Detective Ochoa testified

. 2. Analysis

When one portion of a conversation is admitted into evidence, “ the whole on the same subject may be inquired into by an adverse party ,” and any other portion of the conve rsation that
is “ necessary to make it understood ” may also be admitted

. (Evid. Code, § 356.) The purpose of this rule is “ to avoid creating a misleading impression. ” ( People v. Samuels (2005) 36 Cal.4th 96, 130 ( Samuels ) .) But “[i] t applies only to sta tements that have some bearing upon, or connection with, the portion of the conversation originally introduced. ” ( Ibid. ) “ Statements pertaining to other matters may be excluded

. ” ( Ibid. ) We review for abuse of discretion. ( People v . Farley (2009) 46 C al.4th 1053, 1103.)
There was no abuse of discretion here. Naranjo’s
statements about how he came to possess the gun and why he hid
it at S.M.’s house were not “on the same subject” as where the gun was hidden. Nor were they “necessa ry to make [Naranjo’ s statement about the hiding place] understood.” The trial court was thus under no obligation to admit them. ( Samuels

, supra , 36 Cal.4th at p. 130.)

People v. Chism (2014) 58 Cal.4th 1266 is instructive.
In Chism , the defendant shot a man during an att empted robbery. ( Id. at pp. 1280

- 1281.) At trial, statements he made17

while planning the robbery were admitted into evidence. ( Id. at p. 1324.) But the trial court did not admit statements about why he shot the victim. ( Id. at pp. 1 324

- 1325.) The Supr eme Court determined the court properly excluded th os e statements since they “ had no bearing ” on the statements that were admitted and no part of the admitted statements was misleading. ( Id. at p. 1325.) The same is true here.

Jury in struction on imperfe ct self

- defense Naranjo contends the trial court did not fully and completely instruct the jury on imperfect self

- defense . We disagree. 1. Background

During the conference on jury instruction s, Naranjo requested that the trial court instru ct the jury o n self

- defense
based on threats he said he had received from A.M. and J.Co

. The court questioned whether there was substantial evidence of imminent peril

, and suggested that an instruction on imperfect
self

- defense might be warranted i nstead. Counsel the n requested

an instruction on imperfect self

- defense. The prosecutor objected
that such an instruction was unwarranted. The court decided to
“err on the side of caution” and instruct the jury on imperfect self

defense with CALJIC No. 5.17

. 2. Analysis Naranjo argues the trial court should have supplemented CALJIC No. 5.17 with CALJIC No. 5.50.1 and
CALCRIM No. 57 1. But CALJIC No. 5.50.1 is a pinpoint instruction that need not be given sua sponte. ( People v. Garvin (2003) 110 Cal.Ap p.4th 484, 488

- 489 ( Garvin ).) And CALJIC No. 5.17 is “legally correct,” thus if Naranjo wanted it supplemented with CALCRIM No. 571 he was obligated to request that18

instruction. ( Garvin, at p. 489 .) Because he did not , his argument is forfeited. ( Ibid. )

It also fails on the merits. We independently review whether the trial court properly instructed the jury on imperfect
self

- defense and whether its instruction s “accurately state[d] the
law.” ( People v. Mitchell (2019) 7 Cal.5th 561, 579.) We view t h e challenged instruc tion “‘in the context of the instructions as a
whole and the trial record to determine whether there is a reasonable likelihood the jury applied [it] in an impermissible manner.’ [Citation.]” ( Ibid. ) Our job is to determine “ whether
there is a reasonabl e likelihood that the

. . . instruction[] caused the jury to misapply the law .” ( Ibid. )

There was no such reasonable likelihood here. A defendant acts in imperfect self

- defense when they “actually believe[] [ that they] must defend [t hemselves] from immi nent danger of death or great bodily injury” but th eir “belief is unreasonable.” ( People v. Randle (2005) 35 Cal.4th 987, 994,
overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172, 1201.) As to the first of these requir ements, “[f]ear of
f uture harm

— no matter how great the fear and no matter how great the likelihood of the harm

— will not suffice.” ( In re Christian S. (1994) 7 Cal.4th 768, 783.) As to the second, a court

assesses reasonableness “‘from the point of view o f a reasonable

perso n in the position of defendant,’” taking into account “all the ‘“‘facts and circumstances [to] determin[e] whether the defendant
acted in a manner in which a reasonable [person] would act in protecting [their] own life or bodily safety. ’”’ [Citation.]” ( People

v. Humphrey (1996) 13 Cal.4th 1073, 1083, alterations and italics omitted.) A prior threat is one such circumstance to take into account. ( Garvin

, supra , 110 Cal.App.4th at p. 489.)19 Naranjo claims the trial court should have instructed jurors pu rsuant to CALJIC No. 5.50.1 because that instruction would have told them that he, as the recipient of prior threats, would have been justified in acting more quickly and taking
harsher measures to defend himself

. But CALJIC No. 5.50.1 instructs that a pe rson who has previously been threatened is

“ justified in acting more quickly and taking harsher measures for self protection from an assault by [that person]. ” (Italics added.)
There was no evidence that A.M. assault ed Naranjo before Naranjo shot him. C ALJIC No. 5.50.1 was accordingly inapplicable.

The same is true of CALCRIM No. 571. That instruction would have told jurors that they should “consider all the circumstances as they were known and appeared” to Naranjo
before he murdere d A.M. (CALCRIM No. 571

. ) But CALJIC No. 5.17 told jurors that they should evaluate Naranjo’ s actions against “a reasonable person in the same situation seeing and knowing the same facts.” Because CALCRIM No. 571 was largely
redundant , it was unnecessar y.

Jury instruction on flight Naranjo next contends the trial court erroneously gave CALJIC No. 2.52 because substantial evidence did not support an instruct ion on flight

. We disagree

. 1. Background During the jury instruction conference, the
prosecuto r requested an instr uction on flight . Defense counsel objected that the instruction was unnecessary because Naranjo walked away after shooting A.M. and did not try to flee when he

was arrested the next day. The trial court overruled the objection
because t he evidence showed that Naranjo, “though he may not20

have run, walked away from the scene and allegedly tried to get rid of his green vest.” It subsequently instructed the jury pursuant to CALJIC No. 2.52. 2. Analysis
If prosecutors rely on evidence of a defendant’s fligh t as tending to show guilt, the trial court must instruct the jury
that the flight is a factor to consider in deciding guilt or innocence. (§ 1127c.) To have the instruction given, “the prosecution need not prove the defendant in fact fled, i.e., departe d the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from
the evidence. ” ( People v. Bonilla (2007) 41 Cal.4th 313, 328 ( Bonilla ) .) “‘ In this context, flight “requir es neither the physi cal act of running nor the reaching of a faraway haven” but

. . . does require “a purpose to avoid being observed or arrested.”’” ( People

v. Wallace (2008) 44 Cal.4th 1032, 1074.) “‘“ Mere return to
familiar environs from the scene of an alleged crime doe s not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.” [Citations.]’ [Citation.]” ( Ibid. )

Substantial evidence supported the trial court’s
deci sion to instruct the jury on flight. After Naranjo shot A.M., he “immediately” walked away . ( People v. Howard (2008) 42 Cal.4th 1000, 1020 .) He then discarded his vest, which

“ suggest [s] ‘ a purpose to avoid being observed or arrested .’ [Citation.]” ( B onilla

, supra , 41 Ca l.4th at p. 328.) The instruction was warranted. ( Jurado

, supra , 38 Cal.4th at p. 126 [trial court properly instructed jury on flight where defendant
“walked a half

- mile to a 7

- Eleven Store, along the way hiding in a
tree the scissors jack that had been used to kill ” his victim].)21 Prosecutorial misconduct Naranjo next challenges the prosecutor ’s closing argument and rebuttal, claiming that she committed misconduct throughout. But Naranjo did not object to many of the alleged
incident s of misconduct, nor did he request that the trial court admonish the jury to “ disregard the perceived impropriet[ies]. ” ( People v. Thornton (2007) 41 Cal.4th 391, 454 ( Thornton ).) Those challenges are forfeited. ( Ibid. )

They also lack merit. “‘A pros ecutor who uses
dece ptive or reprehensible methods to persuade the jury
commits misconduct .’” ( People v. Friend (2009) 47 Cal .4th 1, 29 .) “‘[S]uch actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness a s to make the
result ing conviction a denial of due process.’” [Citations.]’” ( Ibid. ) “‘Under state law, a prosecutor who uses such methods
commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citation.]” ( Ibid. )

1. Misstatements of law on first degree murder Naranjo first claims the prosecutor committed misconduct by misstating the law on first degree murder. We disagree

. During her closing argument, the prosecutor
discussed the elements of murder. She then d iscussed first degre e murder :

“ So question number one, was this murder?

“ It absolutely was, yes.

“ Now moving on to question number two. I told you at the very beginning of this case that this was22 deliberate and premeditated murder. That’s question

n umber two, was it?

[¶]

. . . [¶]

“ First degree murder is simply killing someone with malice. Right? So we already talked about that. That’s the murder component.

“ But if that’s done willfully, deliberately, with premeditation, now that’s what we ca ll first degree murd er. It’s still murder, but those things elevate it
to first degree murder. ” (Italics added.)

We agree with Naranjo that the statement italicized
above do es not accurately reflect the law. (Compare § 187, subd. (a) [defining murder] with § 189, subd. ( a) [defining first degree premeditated murder].) But the misstatement does not rise to the level of misconduct. ( People v. Fuiava (2012) 53 Cal.4th 622, 691 [“inadvertent misstatement” not misconduct].) As soon as
she made the statem ent , the prosecutor correct ed herself to say that she had just defined murder again. She then turned to deliberation and premeditation, which “elevate[d]” Naranjo’s
crime “ to first degree murder. ” The context of the prosecutor’s

statements thus reveals n o misconduct. ( Peop le v. Clark (1990) 50 Cal.3d 583, 630.)
2. Time spent deliberating

Naranjo next claims the prosecutor committed
misconduct because she told jurors that , “[u] nder the law, the length of time [a person deliberates] doesn’t matter. ” But in context, the pro secutor was merely telling jurors that a deliberate killing need not be thought about for any particular length of
time :23 “ It’s not relevant how long you deliberate, or you think or you consider, what you’re about to do.

“ The length of time can vary depen ding on the person, depending on the situation. Someone could deliberate for days about, you know, whether they’re going to kill someone or they could do it in seconds. It can happen in seconds. ”

That is an accurate statement of the law. (See, e.g.

, Pe ople v.
Morales (2020) 10 Cal.5th 76, 88 .)
3. Use of hypothetical s Next, Naranjo claims the prosecutor committed misconduct by referenc ing hypothetical scenarios during closing argument. But Naranjo does not support this claim with c itation

to legal aut hority

. I t is therefore forfeited. ( People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 363

- 364 .) And even if it weren’t, “ it is not misconduct for a prosecutor to invoke examples to illustrate a general point about the operat ion of the
law. ” ( P eople v. Ghobrial (2018) 5 Cal.5th 250, 291

. )

4. Mischaracterization of police intervie w Naranjo next claims the prosecutor committed misconduct by mischaracterizing his interview with Detective
Ochoa. We disagree.

The prosecutor pl ayed the last 15 min utes of Naranjo’s hour

- long interview with Detective Ochoa at trial. During closing argument, defense counsel told jurors that they
had “only received a couple minutes of [the interview]

. ” And

“ you’d better believe that the [prosecuto r] would have played the entire statement, not just a couple minutes, if it was helpful for
her. Hold her to that standard. That’s a reason to doubt. ”24 The prosecutor countered this argument in rebuttal :

“ The reason that you heard that portion is that

. . . t hose are the m ost important things that th e defendant said to the police.

“ The detective, when he testified, Detective Ochoa, told you that for 40 minutes, the defendant evaded questions, wouldn’t give him direct answers about things

— ”

Defense c ou nsel objected that t his misstated the evidence, and the trial court admonished the jury that it should ask for readback of testimony if they had a question about the evidence. The prosecutor then continued:

“ The reason you got this portion is because aft er 40 minutes, he fi nally starts being a little honest about things. When his lies aren’t working anymore, he starts giving little pieces of the truth.

“ That is the most important thing that he said, and so that is, of course, the part you are going to h ear. That is what i s relevant to this case. ”

A prosecutor can commit misconduct if they relay facts not in evidence to the jury. ( People v. Linton (2013) 56 Cal.4th 1146, 1207.) Here, however, “ the prosecutor’s remarks were merely responsive to defens e counsel’s own argu ments to the jury on the state of the evidence.” ( People v. Stanley (2006) 39 Cal.4th 913, 952.) They also “constituted fair comment on the evidence, following evidentiary rulings we

. . . upheld” above. ( People v. Lawley (2002) 27 C al.4th 102, 156.) T hat differentiates25

this case from People v. Daggett (1990) 225 Cal.App.3d 751 and People v. Varona (1983 ) 143 Cal.App.3d 566, on which Naranjo relies, as each of those cases “ involved erroneous evidentiary rulings on which the prosecuto r improperly capital ized during . . . closing argument

. ” ( Lawley , at p. 156).

5. Improper vouching for J.Co.’s credibility Naranjo next claims the prosecutor committed misconduct because she “vouched for [J.Co.’s] credibility by repeatedly telling the ju ry he was honest, cr edible, [and] reliable,
and [that] she believed him. ” But he does not point to any specific statements in the record to support his claim. It is forfeited. ( In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 487 [appellate court w ill not sift through record to find support for appellant’s claim].)

And e ven if it weren’t, we see no indication that the prosecutor gave any “‘ personal assurances of [J.Co.’s] veracity or suggest [ed] that information not presented to the jury support [ed his] testimony. ’ [ Citation.]” ( People v. Zambrano (2007) 41 Cal.4th 1082, 1167, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) She instead referenced
his demeanor on the witness stand and the content of his
testi mony and invited jur ors to find him credible. That was entirely permissible. ( Ibid. )

6. Lowering the standard of proof Naranjo next claims that the prosecutor lowered the standard of proof when she told jurors that any finding of
reasonable doubt must be based on the evid ence and suggested that Naranjo had a duty to prove hi s imperfect self

- defense claim. This mischaracterizes the prosecutor’s arguments.26 The prosecutor argued that the killing of A.M. was not justified by discussing the lack of an immi nent threat to
Naran jo. She then encouraged jurors to “ look at evidence. You have to make connections, connect the dots, make inferences. And you can only do those things using the evidence in the case. ”

D efense counsel responded to the prosecutor’s

ar gument about relying on the evidence by agreeing that, “yes, you are only to consider the evidence before you,” but then argued that “reasons to doubt can be based on evidence that you would have wanted that you didn’t receive .”

The prosecutor countered t hat point during reb uttal:

“ Defense counsel, in her closing just now, argued to you that you should do the one thing that I told you over and over again you can’t do. She wants you to think about things that are outside of the evidence that you received in this case

— t hat’s the only way the defenses that they’ve presented work

— and you can’t do that. None o f us can because we don’t know.

“ She wants you to fill in holes or come up with answers to questions that are outside of the realm of the evidence that you heard in this c ase.

“ And the reason she needs you to do that, the reason she needs you to not follow the instructions, one of the jury instructions that states to only consider the evidence

— ”

After defense counsel’s objection that the prosecutor
mi sstated the law was overruled, the prosecutor repeated that jurors should “ only look at what you’ve got in front of you. ”27 “ Reasonable doubt may arise from the lack of evidence at trial as well as from the evidence presented

. ” ( People

v. Campos (2007) 156 Cal.App.4th 1228, 1 238 .) The prosecutor did not suggest otherwise. Rather, she merely reiterated what the trial court had instructed the jury: that it had to “determine
what facts ha [d] been proved from the evidence received in the
trial and not from a ny other source” ; th at a “ ‘fact’ [was] something proved by the evidence” ; and that “e vidence ” included “the testimony of witnesses, writings, material objects, or anything presented to the senses and offered to prove the
existence or non

- existence of a fac t.” (See C ALJIC Nos . 1.00, 1.03, & 2.00.) Naranjo does not challenge these instructions, and we presume the jury followed them. ( People v. Homick (2012) 55 Cal.4th 816, 853 ( Homick ).)

Naranjo also does not show that the prosecutor improperly suggested that he had the burd en to prove his imperfect self

- defense claim. (Cf. People v. Centeno (2014) 60 Cal.4th 659, 673 ( Centeno ) [ error to tell jurors that defendant has burden to prove their innocence ].) Again, in context, the prosecutor was merely repeati ng what the trial co urt had instructed jurors about basing their decision on the evidence presented. Moreover, when a defendant presents evidence in support of a self

- defense claim at trial, a prosecutor is “ within [their] rights to present evidence and a rgument that [the]
d efendant’s evidence did not” support that claim

. ( Thornton

, supra , 41 Cal.4th at p. 455 .) The prosecutor did not lower the standard of proof or commit misconduct.

7. Telling jurors to use “common sense” Next, Naranjo claims the pros ecutor committed
mis conduct by telling jurors to use their “ ‘ common sense ’ ” when28

deciding whether she had fulfilled her burden of proof. D uring closing argument, the prosecutor told jurors, “ If you employ common sense and you use your head and you assess the
evidence , that’s where all of this leads to.” And during rebuttal, she said, “ We want you to use common sense and reason to assess
the evidence in this case and to decide whether or not [ Naranjo ] is guilty of first degree murder .” This was not miscon duct. It is
well es tablished that a juror may use their common sense to evaluate the evidence. ( Centeno

, supra , 60 Cal.4th at p. 669.)

8. Appeals to sympathy and passion Lastly, Naranjo claims the prosecutor committed misconduct by “ask[ing] jurors to sympathize with [A.M .] and place themselves in his position while wat ching the surveillance
videos.” But the page Naranjo cites in the record do es not support this claim. We decline to consider it. 5 ( Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.Ap p.4th 857, 862.)

Ine ffective assistance of counsel Naranjo contends counsel provided ineffective
assistance throughout trial. But several of his claims of ineffective assistance are based on the alleged errors that we rejected above: that counsel did no t object to the pros ecutor’s alleged misconduct, did not object to Detective Ochoa’s
identifications

, and did not request CALJIC No. 5.50.1. An ineffective assistance claim based on any of these grounds necessarily fails. ( Homick

, supra , 55 Cal.4th at p. 893, fn. 44.)

5 Naranjo atte mpts to support this claim with additional argument s and citations to the record in his reply brief. We do not consider these belated arguments. ( Rangel

, supra , 62 Cal.4th at p. 1218.)29 The remainder similarly lack merit

. To succeed on an ineffective assistance of counsel claim, a defendant must show that counsel perform ed deficient ly and that that deficient performance resulted in prejudice . ( Strickland v. Washington (1 984) 466 U.S. 668, 6 87 .) The first of these showings requires
the defendant to “ establish that ‘ counsel ’ s representation fell below an objective standard of reasonableness under prevailing professional norms. ’ [Citation.]” ( In re Fields (1990) 51 Cal.3d 1063, 1069 , alterat ions omitted.) The second requires the
defendant to establish that there is “‘ a reasonable probability that, but for counsel ’ s unprofessional errors, the result of the proceeding would have been different. ’” ( Id. at p. 1070.) “‘ A

rea sonable probability is a probability sufficient to undermine
confidence in the outcome. ’ [Citations.]” ( Ibid. )

1. Detective Ochoa’s testimony Naranjo’s first claim of ineffective assistance is based on counsel’s failure to object to Detective Ochoa’s t estimony when
asked about what Naranjo meant when he said, “And like I said if I didn’t do it, they were going to fuck me over anyway.” To Naranjo, the detective’s reply ( that “[i]f he didn’t

— if he didn’t
shoot the victim” ) was an improper opinion as to h is state of mind ( se e People v. Sanchez (2016) 63 Cal.4th 411, 456) and guilt ( see People v. Coffman & Marlow (2004) 34 Cal.4th 1, 77). But even if we were to assume that the detective’s testimony were improper, “[w] hether to object to inadmissible eviden ce is a tactical
dec ision” that “ seldom establishes counsel ’ s incompetence .” ( People v. Hayes (1990) 52 Cal.3d 577, 621 ( Hayes ) .) Defense counsel could reasonably have determined not to object to the
detective’s statement so as to not draw additional atte ntion to it.30

( Peopl e v. Barnett (1998) 17 Cal.4th 1044, 1140

- 1141.) W e thus cannot say that counsel performed ineffectively. ( Id. at p. 1141.)

2. The ballistics expert’s opinions At trial, a firearms expert testified that he had compared the tool mark s from a bullet fire d from the gun found
in S.M.’s house with the marks on the bullet retrieved from
A.M.’s head. Based on that comparison, the expert opined that the two bullets had been fired from the same gun. He also said that another expert had exam ined his wo rk and ag reed with his opinion. Defense counsel did not object to the expert’s testimony.
Nor did she ask the expert about studies purportedly showing the unreliability of firearm comparison evidence. Naranjo claims
that constituted ineffecti ve assistance.

We d isagree. “‘[J] urors essentially can see [ballistics comparisons] for themselves ’ ” and determine whether they agree with experts’ opinions. ( People v. Cowan (2010) 50 Cal.4th 401, 470.) And both the decision whether to object to impro per testimony ( Hayes

, supra , 52 Cal.3d at p. 621) and how to conduct

cross

- examination are matters “ within counsel’s discretion [that] rarely implicate ineffective assistance of counsel.” ( People v. McDermott (2002) 28 Cal.4th 946, 993 .) Perhaps counsel did not
want to draw added attention to the ballistics expert’s testimony given the jury’s ability to see the tool marks for themselves. Or perhaps she concluded that ballistics was not a weak part of the prosecut or’s case and wanted to focus attention on other matters
inste ad. Either way, such a tactical decision does not constitute
ineffective assistance.
3. CALJIC No. 2.91

Naranjo next claims counsel was ineffective because she did not request that the trial court instruct jurors pursuant31

to CALJIC N o. 2.91, which would have told them that the prosecutor had to prove, beyond a reasonable doubt, that he was the person who killed A.M. But a court should give that instruction upon request only if “‘i dentification is a crucial issue
and there is no subst antial corroborative evidence’” in the case. ( People v. Alcala (1992) 4 Cal.4th 742, 803 ( Alcala ), italics
omitted .) Here, there was substantial corroborative evidence of Naranjo’s identity as the shooter: eyewitness testimony, the surveillance videos, and Naranjo’s action s before and after the shooting. The court thus could have rejected any request for the
instruction had it been made.

In addition, the trial court instructed the jury on “witness credibility (CALJIC No. 2.20), discrepancies in
testimo ny (CALJIC No. 2.21) , the weighing of conflicting testimony (CALJIC No. 2.22), the sufficiency of testimony from one witness (CALJIC No. 2.27), and reasonable doubt (CALJIC No. 2.90).” (

Alcala

, supra , 4 Cal.4th at p. 804.) These

“ instructions were suffic ient to inform the j ury that the prosecution had the burden of establishing identity, and that defendant should be acquitted in the event the jury harbored a reasonable doubt on the issue of identity.” ( Id. at p. 803.)
Counsel was thus not ineffective by not request ing CALJ IC No. 2.91. ( Alcala

, at pp. 804

- 805.)

4. CALJIC No. 8.73 Finally, Naranjo claims counsel was ineffective because she did not request CALJIC No. 8.73, which would have told jurors that provocation can reduce first degree murder to

se cond degree murder

. But that instruction need only be given if supported by substantial evidence. ( People v. Avila (2009) 46 Cal.4th 680, 707.) Naranjo points to no evidence that he “formed32

the intent to kill as a direct response to [A.M.’s ] provocation and

. . . acted imm ediately.” ( People v. Wickersham (1982) 32 Cal.3d 307, 329, disapproved on another ground by People v. Barton (1995) 12 Cal.4th 186, 200

- 201.) Counsel was thus not ineffective for failing to request CALJIC No. 8.73. ( Alcala

, supra , 4 Cal.4th at p p

. 804

- 805 .)
Cumulative error Naranjo contends the judgment should be reversed because the errors at trial, considered cumulatively, denied him a
fair trial

. But we have rejected all of his individual claims of

error. His cumulative error c laim thu s necessaril y fails. ( People

v. Koontz (2002) 27 Cal.4th 1041, 1094.)

Motion to strike firearm enhancement Naranjo contends the trial court erred when it denied
his motion to strike the firearm enhancement imposed pursuant
to section 12022.53, su bdivision (d)

. We d isagree. 1. Legal framework Pursuant to section 12022.53, subdivision (d), a defendant convicted of a qualifying felony who personally and intentionally discharges a firearm causing death is subject to a
sentence enhancement of 25 yea rs to lif e in state prison. Subdivision (h) of section 12022.53 permits a trial court to strike
that enhancement in the interest of justice. ( See also § 1385, subd. (a) .) When deciding whether to do so, the court should

“ consider the factors listed in C alifornia Rules of C ourt, rule
4.410

. . . as well as circumstances in aggravation and mitigation
under rules 4.421 and 4.423. ” ( People v. Pearson (2019) 38 Cal.App.5th 112, 11 7 ( Pearson ).) “ ‘ Unless the record affirmatively reflects otherwise, ’” we presu me that the court33

co nsidered these factors and circumstances. ( Ibid. , alterations omitted; see Ca l. Rules of Court, rule 4.409.)

We review a trial court’s denial of a motion to strike a
firearm enhancement for abuse of discretion. ( Pearson

, supra , 38
Ca l.App.5th at p. 116

. ) An abuse of discretion occurs only “ in
limited circumstances ,” such as “ where the

. . . court was not

‘ aware of its discretion ’ to dismiss [citation] , or where the court considered impermissible factors in declining to dismiss [citat ion].” ( People v. C armony (2004) 33 Cal.4th 367, 378 ( Carmony ) .) “ But ‘ it is not enough to show that reasonable people might disagree about whether to strike ’” the enhancement. ( Ibid. , alterations omitted.) “ Where the record is silent [ citation ],

or ‘ w here the record demo nstrates that the

. . . court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm [its] ruling, even if we might have ruled differently in the first instance ’ [citation ].” ( Ibid.

, a lterat ions omitted. ) 2. Analysis

There was no abuse of discretion here

. At sentencing, Naranjo mov ed the trial court to st rike the firearm enhancement
because he was 41 years old and had no prior convictions. The prosecut or opposed Naranj o’s motion based on the “ egregious
facts ” of the murder. The court agreed with the prosecutor, finding that Naranjo ’s conduct was “ egregious ” based on “ the manner in which he used the weapon to coldly go up to somebody and, execution style, murder that in dividual.” It denie d Naranjo’s motion.

That denial was well within the court’s discretion.

“ The factors that the trial court must consider when determining
whether to strike a firearm enhancement under section 12022.53,34

subdivision (h)[,] are the same f actors the trial cou rt must consider when handing down a sentence in the first instance. ” ( Pearson

, supra , 38 Cal.App.5th at p. 117 .) Among those factors
are the “ cruelty, viciousness, or callousness” of the crime and that the defendant used a weapon to commit it. (Cal. Ru les of Court, rule 4.421(a)(1)

- ( 2 ).) The court below explicitly considered these
factors. “[D]enying [Naranjo’s] request to strike the fi rearm enhancement here was squarely within the bounds of the . . .
court’s discretion. ” ( Pearson , at p. 118.)

Naran jo counters that his sentence should be reconsidered in light of the purpose of Senate Bill No. 620 ( 2017

- 2018 Reg. Sess.) ( S.B. 620), which granted trial courts the
discretion to strike firearm enhancements . (Stats. 2017, ch. 682, § 2 .) But S.B. 620 was enacted prior to Naranjo’s sentencing, and
the trial court here was well aware of the discretion the bill granted to it. It does not follow that simply because the court
chose not to exercise that discretion that that choice ran count er to S.B. 620’s pur poses. Indeed, Naranjo identifies nothing in S.B. 620 that would require deviating from the Legislature’s determination that a willful, deliberate, and premeditated
murder committed with the use of a firearm warrants a sentence of 50 y ears to life. It is only in the “extraordinary” case that courts should deviate from legislatively prescribed sentencing rules. ( Carmony

, supra , 33 Cal.4th at p. 378.) This is not that

case. Lesser firearm enhancement

Alternatively, Naranjo contends th e case should be

rem anded to permit the trial court the opportunity to impose a
lesser firearm enhancement. (See People v. Morrison (2019) 34 Cal.App.5th 217 , 221

- 223 ( Morrison ).) We again disagree.35 The prosecutors in Morrison originally alleged that
th e defendant had pers onally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm ( id. , subd. (c)), and personally discharged a firearm causing death ( id. , subd. (d)). ( Morrison

, supra , 34 Cal.App.5th at p. 221.) Prior to submitting
the case to the jury, ho wever, prosecutors struck the subdivision (b) and (c) allegations, leaving jurors to decide only the subdivision (d) allegation. ( Morrison , at p. 221. ) They found the allegation true, and the trial court added the corresponding
enhanc ement to the defenda nt’s sentence. ( Ibid. ) On appeal, our colleagues in the First District vacated the enhancement. ( Morrison

, at p. 225.) They concluded that the recent addition of subdivision (h) to section 12022.53 granted the trial court the
discre tion to strike the e nhancement imposed pursuant to subdivision (d) and substitute one of the lesser included, uncharged enhancements instead. ( Morrison

, at pp. 221

- 223.)

As in Morrison , the jury here concluded only that Naranjo personally discharged a fi rearm causing death, and made no findings regarding any lesser included allegations

. But
Morrison was decided in April 2019. Naranjo was senten ced
more than two months later. Had he believed the trial court had the discretion to impose a lesser included enhancement, it was his duty to object to the sentence the court imposed. ( People v. Yanez (2020) 44 Cal.App.5th 452, 460 ( Yanez )

, review granted April 22, 2020, S260819 .) Because he failed to do so, his contention is forfeited. ( Ibid. )36 It also fails on the merits. 6 Eve ry case confronting
the issue of whether se ction 12022.53, subdivision (h)

, permits a trial court to substitute a subdivision (b) or (c) enhancement for a subdivision (d) enhancement has concluded that Morrison was wrongly decided

— i.e., that subdivision (h ) does not “ authorize [] a trial court to substitute one enhancement for another.” ( People v. Tirado (2019) 38 Cal.App.5th 637, 64 3
, review granted Nov. 13, 2019, S257658 ; see also People v. Delavega (2021) 59 Cal.App.5th 1074, 1087; P

e ople v. Valles (2020 ) 49 Cal.App.5th 156, 164

- 167, review granted July 22, 2020, S262757 ; People v. Garcia (2020) 46 Cal.App.5th 786, 790

- 794, review granted June 10, 2020,
S261772 ; Yanez

, supra , 44 Cal.App.5th at pp. 458

- 460, review granted.) We find the analysis in these c ases persuasive, and would apply their holdings here had Naranjo not forfeited his
contention. Lack of a probation report at sentencing

Finally, Naranjo contends the trial court erred when it declined to order a probation report before sentencing him. Bu t Naranjo did not object to the lack of a probation report at sentencing. His contention is forfeited. ( People v. Llamas (1998) 67 Cal.App.4th 35, 38

- 39 .)

It also fails on the merits. 7 A defendant who uses a
firearm to commit murder is ineligible for p robation. (§ 1203.06,

6 We accordingly reject Naranjo’s contention that counsel provided in effective assistance by not requesting a lesser firearm enhancement. ( Homick

, supra , 55 Cal.4th at p. 893, fn. 44.)

7 We thus reject Naranjo’s contention that counsel provided ineffective assistance by not objecting to the lack of a probation report

. ( H

omick

, supra , 55 Cal .4th at p. 893, fn. 44.)37

subd. (a)(1)(A).) The trial court nevertheless has the discretion to order the probation department to produce a report to aid the court at sentencing. (§ 1203, subd. (g); see People v. Webb (1986) 186 Cal.App.3 d 401, 408

- 409 .) He re, however, Naranjo has not
shown that the court abused that discretion because, as the court noted during the proceedings below, there was no need to order a probation report since Naranjo’s sent ence was “dictated by
statute.” The ma ndatory sentence for first degree murder is 25 years to life in state prison. (§ 190, subd. (a).) And when it is not stricken, the mandatory sentence enhancement for a defendant who personally and intentionally used a firearm causing death is
a consecuti ve 25 years to life. (§ 12022.53, subd. (d).) Thus even if Naranjo could show that the trial court abused its discretion by not ordering a probation report, he cannot show prejudice.

People v. Tatlis (1991) 230 Cal.App.3d 1266, on which Naranjo relies, is not to the contra ry. In that case, the trial court denied the defendant’s request for an updated probation report to inform the court’s exercise of discretion during resentencing. ( Id. at p. 1269.) The appellate court determined it was error to deny the defendant’s requ est because that denial was based on the
trial court’s conclusion that it lacked discretion to order a probation report and because the defendant showed prejudice. ( Id. at p. 1274.) Here, in contrast, Naranjo did not request a probati on report , t he trial court knew it could order one, and Naranjo failed to show prejudice. Tatlis is accordingly inapposite.38 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

YEGAN, Acting P. J.

PERREN, J.George C. Lomeli, Judge

Superior Court County of Los Angeles

______________________________

Cynthia Grimm , under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney G eneral, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.