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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

FERNANDO 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 §§ 187, 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 enhancement.

Naranjo contends the judgment should be reversed 

because the trial court erred when it: (1) denied his 

1 Unlabeled statutory references are to the Penal Code.
2

Batson/Wheeler2 motion, (2) permitted a detective to identify him 

in surveillance videos, (3) excluded portions 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 

ineffective 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 court declined 

to order a probation report prior to sentencing. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Naranjo and J.Co. were outside a 99 Cents Store in 

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, taking off the vest 

he had been wearing 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 slowly down the street. He threw his vest over a 

fence as he walked.

When police arrived, J.Ce. and J.Co. 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. Kentucky (1986) 476 U.S. 79 (Batson); People v. 

Wheeler (1978) 22 Cal.3d 258 (Wheeler).
3

The next day, police arrested Naranjo at S.M.’s

apartment. J.Co. later identified 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 police retrieved it, it had 

four unfired bullets and one fired cartridge inside.

Ballistics revealed that the bullet recovered 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 the gun. 

Naranjo’s DNA was the primary contributor to the mixture.

Surveillance cameras at several nearby businesses 

covered the scene of the shooting. Video footage from one of the 

cameras showed A.M. riding his bicycle toward the 99 Cents 

Store and Naranjo running down the opposite side of the street. 

Footage from another camera showed Naranjo shoot A.M. in the 

head and walk away. Footage from a third also captured the 

shooting.

Detective Ochoa showed a six-pack photo array to 

witnesses. Three men who were working nearby the 99 Cents 

Store on the day of the shooting, including J.Ce., viewed the 

photo array, but none was able to identify Naranjo. Two of the 

witnesses believed another man resembled the shooter.

When Detective Ochoa interviewed Naranjo, he said 

he had been 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” 

meant shooting A.M. Naranjo claimed that he had reported 

Guero and Jorge’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 

Latinx 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, supra, 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 

(Manibusan).) If the defendant does so, the prosecutor 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] hunches.” (People v. Lenix (2008) 44 Cal.4th 602, 613

(Lenix), italics omitted.) The trial court must then determine 

whether the prosecutor’s proffered reasons are “credible and 

whether, in light of all relevant circumstances, the defendant has 

shown purposeful race discrimination.” (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 court’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 

constitutional 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 rulings

“‘[s]o long as [it] makes a sincere and reasoned effort to evaluate 

the nondiscriminatory justifications 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. Reynoso (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 the general 

questions asked of her venire. The prosecutor said she excused

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 was also 

concerned that, 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]emeanorbased explanation[]’ [was] ‘particularly susceptible to serving as 

[a] pretext[] for discrimination.’” (Citing 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 timid 
6

jurors.” (People v. Duff (2014) 58 Cal.4th 527, 546 (Duff).) This is 

true even if that timidness is “not explicitly confirmed by the 

record.” (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 is the case 

here—we cannot say the trial court erred. (Ibid.)

3. Prospective Juror 7584

The prosecutor said she excused Prospective Juror 

7584 due to “some language restrictions.” When the trial court 

asked whether the prosecutor inquired of the prospective juror’s 

language ability, the prosecutor replied that her decision was 

“just based 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.”

Difficulty speaking or understanding 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 claims, 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 

prospective juror’s language abilities 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 assistant softball coach and had no prior jury 
7

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, no children, and she just struck me as a 

person maybe lacking enough life experience, I think, to—for 

me—to 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 because “it is implausible 

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 

immaturity 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 challenging Prospective 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 comparisons.” (Lenix, supra, 44 

Cal.4th at p. 622.) The pages of the record Naranjo cites in 

support of this claim in his opening brief do not permit those 

comparisons, lacking, at various points, information about each

juror’s race, marital status, or children.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—the 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 convict [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 clarified: “[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 that it would instruct

jurors that motive is not an element of murder. The juror said, 

“Most likely, if I don’t have the motive, 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 that person.” 

The prosecutor replied that she did not believe “it rose to the 

level of cause, but [she] did make 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 reflect “an unwillingness to follow the 
9

law” on motive. But he repeatedly stated his desire to know the 

defendant’s motives, which provides substantial evidence to 

support a finding he was reluctant to follow the law. (People v.

Smith (2018) 4 Cal.5th 1134, 1148-1150, 1155-1158.) And a 

potential juror’s reluctance to follow the law is a “valid, raceneutral reason[] for exercising a peremptory challenge.” 

(People v. Smith (2019) 32 Cal.App.5th 860, 873.)

6. Prospective Juror 2722

The prosecutor said she excused 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, like, societal norms on some issues.”

Naranjo claims we should reject the prosecutor’s 

proffered justification for excusing this prospective juror because 

“the court did not make any specific findings regarding whether

. . . it was appropriate for the prosecutor to challenge the 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 186, 202.) “It 

matters 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 appearances], may be 

passing 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 

nondiscriminatory.” (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. 76.) Naranjo makes 

no 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 if 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 the prospective juror would stick with it or 

“go along with the group” if, after further discussion, she still felt 

her decision was right. She answered, “I would probably still go 

with the group.”

The trial court explained that jurors should make an 

independent decision based on the evidence 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 jurors whether they would be able to “stick by [their]

decision[s].” Prospective Juror 5992 said she would. The 

prosecutor nevertheless excused this prospective juror because 

she was not “entirely convinced” that she would follow the court’s 

instructions.

Prosecutors may excuse 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 similarly 
11

indicated a willingness to “‘go with 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 prosecutor excused the other. 

Naranjo’s attempt to show the prosecutor’s reason was pretextual 

accordingly fails.

8. Prospective Juror 0939

Prospective Juror 0939 had to be prompted by the 

trial court to provide his initial information. He did not volunteer 

any additional information, and was not directly asked any other 

questions.

The prosecutor said she excused Prospective Juror

0939 because “[h]is responses to the initial questions . . . were 

difficult . . . to understand.” When the court asked for 

clarification, the prosecutor said that the prospective juror’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 difficulty 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; 

Ayala, supra, 24 Cal.4th at pp. 266-267.) Naranjo claims that the 

prosecutor could not have relied on this reasoning because 

neither the trial court nor defense counsel had any trouble 

understanding Prospective Juror 0939. But when reviewing the 

denial of a Batson/Wheeler motion, our role is to determine 

whether substantial evidence supports the trial 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 when 
12

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. 1052.) 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 

videos played at trial. But Naranjo did not object to the 

identifications during the proceedings below. His 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 abused its discretion when it permitted 

Detective 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 played surveillance video 

footage that showed the shooting of A.M. When Detective Ochoa 

began to describe the location and perspective of the first video, 

Naranjo objected “to publication without foundation.” He did not 

object when the detective subsequently 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 objected on foundation grounds. The 

trial court asked Detective Ochoa to explain how he recognized 

that person. The detective said that he “believe[d] th[e] person in 
13

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 his bicycle. When the prosecutor asked if the 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 clothes 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 described 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 it as you wish but based 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 having viewed 

the different videos. He also considered witnesses’ statements, 

which corroborated what he had seen in the videos. Naranjo did 

not object to these identifications.

2. Analysis

Citing the secondary evidence rule, Naranjo first 

claims that Detective Ochoa’s testimony was inadmissible to 
14

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 

“highlight important details 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 defendant’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. 

Code, § 800.) And identity 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 that knowledge after the 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 question 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, because Detective Ochoa’s testimony was based on 
15

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

During his interview with Detective Ochoa, 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 detective asked Naranjo 

whether the gun had “anything to do with what happened” 

outside the 99 Cents Store. Naranjo replied, “Obviously, yes, 

because that’s what people have been saying.”

Prior to trial, the prosecutor moved to admit portions 

of the interview. The trial court reviewed the transcript and 

ruled that the discussion about where Naranjo’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.” She claimed that those facts were relevant and helped to 

put Naranjo’s entire 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 place 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 told 

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 that person when he said, “[I]f I didn’t do it, they were 

going to fuck me over anyway.” Naranjo did not renew his 

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 conversation 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 statements 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 Cal.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 “necessary 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 attempted 

robbery. (Id. at pp. 1280-1281.) At trial, statements he made 
17

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. 1324-1325.) The Supreme Court 

determined the court properly excluded those 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 instruction on imperfect 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 instructions, Naranjo 

requested that the trial court instruct the jury on 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 instead. Counsel then 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 selfdefense 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. 571. But CALJIC No. 5.50.1 is a pinpoint 

instruction that need not be given sua sponte. (People v. Garvin

(2003) 110 Cal.App.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 that 
18

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 instructions “accurately state[d] the 

law.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We view the 

challenged instruction “‘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 reasonable 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 [themselves] from imminent 

danger of death or great bodily injury” but their “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 requirements, “[f]ear of 

future 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 of a reasonable 

person 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 pursuant 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 person 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. assaulted Naranjo before

Naranjo shot him. CALJIC 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 murdered 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 unnecessary.

Jury instruction on flight

Naranjo next contends the trial court erroneously 

gave CALJIC No. 2.52 because substantial evidence did not 

support an instruction on flight. We disagree.

1. Background

During the jury instruction conference, the 

prosecutor requested an instruction 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 the evidence showed that Naranjo, “though he may not 
20

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 flight 

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., 

departed 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 “requires neither the physical 

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 does 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 

decision 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.]” (Bonilla, supra, 41 Cal.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 

incidents 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 prosecutor who uses 

deceptive 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 as to make the 

resulting 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 discussed first 

degree 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 was 
22

deliberate and premeditated murder. That’s question 

number 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 call first degree 

murder. It’s still murder, but those things elevate it 

to first degree murder.” (Italics added.)

We agree with Naranjo that the statement italicized 

above does 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 statement, the prosecutor corrected 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 no misconduct. (People 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 prosecutor 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 depending 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., People v. 

Morales (2020) 10 Cal.5th 76, 88.)

3. Use of hypotheticals

Next, Naranjo claims the prosecutor committed 

misconduct by referencing hypothetical scenarios during closing 

argument. But Naranjo does not support this claim with citation 

to legal authority. It 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 operation of the 

law.” (People v. Ghobrial (2018) 5 Cal.5th 250, 291.)

4. Mischaracterization of police interview

Naranjo next claims the prosecutor committed 

misconduct by mischaracterizing his interview with Detective 

Ochoa. We disagree.

The prosecutor played the last 15 minutes 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 [prosecutor] 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 . . .

those are the most important things that the 

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 counsel objected that this 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 after 40 

minutes, he finally 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 hear. 

That is what is 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 defense counsel’s own arguments 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 Cal.4th 102, 156.) That differentiates 
25

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 prosecutor improperly capitalized 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 jury he was honest, credible, [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 will not sift through record to find support 

for appellant’s claim].)

And even 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 

testimony and invited jurors 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 evidence and suggested 

that Naranjo had a duty to prove his 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 imminent threat to 

Naranjo. 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.”

Defense counsel responded to the prosecutor’s 

argument 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 that point during rebuttal:

“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—that’s the only way 

the defenses that they’ve presented work—and you 

can’t do that. None of 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 case.

“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 

misstated 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, 1238.) 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 any other source”; that a “‘fact’ [was]

something proved by the evidence”; and that “evidence” 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 fact.” (See CALJIC 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 burden 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 repeating what the trial court 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 argument that [the] 

defendant’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 prosecutor committed 

misconduct by telling jurors to use their “‘common sense’” when 
28

deciding whether she had fulfilled her burden of proof. During 

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 misconduct. It is 

well established 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 watching the surveillance 

videos.” But the page Naranjo cites in the record does not 

support this claim. We decline to consider it.5 (Nelson v.

Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)

Ineffective 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 not object to the prosecutor’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 attempts to support this claim with additional 

arguments 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 performed deficiently and that that deficient 

performance resulted in prejudice. (Strickland v. Washington

(1984) 466 U.S. 668, 687.) 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, alterations 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 

reasonable 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 testimony 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 his state of mind 

(see 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 evidence is a tactical 

decision” 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 attention to it. 
30

(People v. Barnett (1998) 17 Cal.4th 1044, 1140-1141.) We 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 marks from a bullet fired 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 examined his work and agreed 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 ineffective assistance.

We disagree. “‘[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 improper 

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 

prosecutor’s case and wanted to focus attention on other matters 

instead. 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 pursuant 
31

to CALJIC No. 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 “‘identification is a crucial issue 

and there is no substantial 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 actions 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 

testimony (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 sufficient to inform the jury 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 requesting CALJIC 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 

second 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 “formed 
32

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

. . . acted immediately.” (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 pp. 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 claim thus necessarily 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, subdivision (d). We disagree.

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 years to life 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 California Rules of Court, 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, 117 (Pearson).) “‘Unless the record 

affirmatively reflects otherwise,’” we presume that the court 
33

considered these factors and circumstances. (Ibid., alterations 

omitted; see Cal. 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 

Cal.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 

[citation].” (People v. Carmony (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 ‘where the record demonstrates 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., alterations omitted.)

2. Analysis

There was no abuse of discretion here. At sentencing, 

Naranjo moved the trial court to strike the firearm enhancement

because he was 41 years old and had no prior convictions. The 

prosecutor opposed Naranjo’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 individual.” It denied 

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 factors the trial court 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. Rules of Court, 

rule 4.421(a)(1)-(2).) The court below explicitly considered these 

factors. “[D]enying [Naranjo’s] request to strike the firearm 

enhancement here was squarely within the bounds of the . . . 

court’s discretion.” (Pearson, at p. 118.)

Naranjo 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 counter 

to S.B. 620’s purposes. 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 years 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 the case should be 

remanded 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 

the defendant had personally 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, however, 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 

enhancement to the defendant’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 

discretion to strike the enhancement 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 firearm causing death, and 

made no findings regarding any lesser included allegations. But 

Morrison was decided in April 2019. Naranjo was sentenced 

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 Every case confronting 

the issue of whether section 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, 643, review granted Nov. 13, 

2019, S257658; see also People v. Delavega (2021) 59 Cal.App.5th 

1074, 1087; People 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 cases 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. But 

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 probation. (§ 1203.06, 

6 We accordingly reject Naranjo’s contention that counsel

provided ineffective 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. (Homick, 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.3d 401, 408-409.) Here, 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 sentence was “dictated by 

statute.” The mandatory 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 consecutive 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 contrary. 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 request 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 

probation report, the 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 General, Susan Sullivan Pithey, 

Assistant Attorney General, Michael R. Johnsen and Blythe J. 

Leszkay, Deputy Attorneys General, for Plaintiff and 

Respondent.