Filed 5/21/24 P. v. Love CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVAUGHN LOVE,

Defendant and Appellant.

 B326635

 (Los Angeles County

 Super. Ct. No. TA138408)

APPEAL from an order of the Superior Court of Los 

Angeles County, Eleanor J. Hunter, Judge. Conditionally 

reversed and remanded with directions. 

Kelly C. Martin, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Steven D. Matthews, Supervising 

Deputy Attorney General, and Gary A. Lieberman, Deputy 

Attorney General, for Plaintiff and Respondent.

* * * * * *

Davaughn Love (defendant) appeals the trial court’s denial, 

following an evidentiary hearing, of his petition for resentencing 

under Penal Code section 1172.6.1 We reject six of his seven 

arguments for reversal, but remand for a hearing on whether 

defense counsel’s representation, at the outset of the hearing, 

that defendant had “waived” his right to appear was based on a 

voluntary, knowing and intelligent waiver. If it was, the trial 

court’s denial of relief is affirmed; if it was not, the trial court is 

directed to conduct a new evidentiary hearing.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Underlying crimes

In August 2015, defendant belonged to the “Blocc Crips” 

gang, which is a subset of the “Rolling 100s” gang. The month 

before, a prominent member of the Rolling 100s gang was gunned 

down, and the Rolling 100s—and their affiliates—openly declared 

war on all rival gangs; they called it “100 Days, 100 Nights.” The 

Hoover Criminals gang was one of those rival gangs. 

On August 11, 2015, defendant and his fellow Blocc Crips 

gang member Antwoine Vaughn (Vaughn) asked their friend 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

Effective June 30, 2022, section 1170.95 was renumbered 

section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). 

We therefore refer to the law formerly codified at section 1170.95 

as section 1172.6.
3

Timothy Boykins (Boykins) if they could use his car to drive into 

Hoover Criminals territory. When Boykins declined, defendant 

and Vaughn decided that (1) defendant would drive Vaughn in a 

white Dodge Magnum registered to Nichelle Carter (Carter), a 

woman with whom defendant was in a relationship (rather than 

in the Audi defendant owned in his own name); and (2) Boykins

would follow them separately in his own car, so he could 

videotape their exploits. 

When they arrived in Hoover Criminals territory, 

defendant pulled up alongside Akeem Bladen (Bladen), his

girlfriend, and their two children, who were all walking on the 

sidewalk. Bladen was not a gang member, and did not know 

defendant or Vaughn. Defendant stopped the car, and Vaughn 

got out and approached Bladen. After asking each other, “What’s 

up?” Vaughn immediately opened fire, shooting Bladen in the 

back of the leg. When Bladen tried to get away by running across 

the adjacent intersection, Vaughn continued to shoot him from 

behind, even after Bladen fell to the ground and continued to 

crawl away. Vaughn ultimately unloaded 10 bullets into 

Bladen—in his head, chest, hand, and leg. Miraculously, Bladen 

survived. Vaughn was shooting “wildly,” and three other bullets 

he shot struck a passing car. Defendant waited for Vaughn to 

finish his rampage and get back into the car, and then drove off 

with him. 

The following day, defendant texted Vaughn to remind him 

to “move” his gun. He signed off the message with “HK,” which a 

gang expert explained is short for “Hoover Killer.” 

In an October 2015 jailhouse call, defendant and others 

discussed the shooting and defendant did not deny his 

“involvement.” 
4

B. Prosecution, conviction, and appeal

The People charged defendant with (1) the attempted 

premeditated murder of Bladen (§§ 187, subd. (a), 664), and (2) 

shooting at the occupied vehicle (§ 246). The People further 

alleged that these crimes were committed “for the benefit of, at 

the direction of, or in association with” a criminal street gang (§ 

186.22, subd. (b)(4)), and that a principal discharged a firearm 

causing great body injury (§ 12022.53, subds. (d) & (e)(1)). The 

People additionally alleged that defendant had two prior “strike” 

convictions within the meaning of our “Three Strikes” law (§§ 

1170.12, subds. (a)-(d), 667, subds. (b)-(j)). 

Defendant and Vaughn were tried together, but before 

separate juries. The trial court instructed defendant’s jury that 

defendant could be found guilty of attempted premeditated 

murder if defendant (1) directly aided and abetted Vaughn in 

committing attempted murder; or (2) aided and abetted Vaughn

in committing assault or conspiracy to commit assault, if 

attempted murder was a natural and probable consequence of 

those lesser crimes. 

A jury convicted defendant of both crimes and found all 

enhancement allegations to be true. 

The trial court sentenced defendant to prison for 47 years 

to life, comprised of seven years to life for the attempted murder, 

25 years to life for the discharge of a firearm, and 15 years to life 

for the shooting at an occupied vehicle—all to run consecutively. 

II. Procedural Background

On September 18, 2019 and October 7, 2019, defendant 

filed two separate petitions for resentencing under section 

1172.6. 
5

After multiple appeals and remands occasioned by changes 

in the law, the trial court set the matter for an evidentiary 

hearing. The court held the hearing on October 31, 2022, at 

which the parties elected to rely on the trial record and did not 

introduce any new evidence. 

The trial court denied relief, finding that the People had

proven defendant guilty of attempted murder under a currently 

valid theory beyond a reasonable doubt. 

Defendant filed this timely appeal. 

DISCUSSION

Defendant raises seven challenges to the trial court’s denial 

of his section 1172.6 petition. We consider each in turn.

I. Insufficient Record of Waiver of Defendant’s 

Presence

When defendant did not appear at the evidentiary hearing 

despite the trial court’s issuance of an order to the prison to allow 

him to participate remotely, the trial court asked defendant’s 

attorney whether defendant had “waived his appearance for 

these purposes.” The attorney responded, “Yes,” but there was no 

further discussion of the issue. 

Defendant argues that this was error because the record 

does not affirmatively demonstrate the validity of defendant’s 

waiver. To be valid, a criminal defendant’s waiver of his presence 

at trial must be “voluntary, knowing and intelligent.” (People v. 

Davis (2005) 36 Cal.4th 510, 531.) What is more, when a 

defendant’s lawyer communicates the defendant’s waiver of his 

presence (rather than the defendant personally making the 

waiver), “there must be some evidence” in the record “that [the]

defendant understood the right [to be present that] he was 

waiving and the consequences of doing so.” (Id. at p. 532.) 
6

In the brief exchange between the trial court and 

defendant’s lawyer in this case, defendant’s lawyer did not relay 

that he had informed defendant of his right to attend the 

evidentiary hearing or described to defendant the consequences of 

not attending. Consequently, and as the People concede, the 

waiver is not valid on the record before us.

However, because defendant’s attorney in this case 

indicated that defendant “waived” his right—rather than counsel 

merely asserting that he was appearing on his client’s behalf 

(People v. Quan (2023) 96 Cal.App.5th 524, 535) or that the client 

had no right to appear that necessitated a waiver (People v. 

Basler (2022) 80 Cal.App.5th 46, 59-60)—the defect here is not 

the total absence of a waiver; instead, we are confronted with an 

inadequate record by which to assess whether the waiver was 

voluntary, knowing and intelligent. As a result, we remand to 

the trial court to assess whether defendant’s attorney’s prior 

indication of “waiver” was made while defendant was aware of 

his right to appear and of the consequences of failing to appear. 

If the waiver was voluntary, knowing and intelligent—and hence 

was valid—the court’s order denying relief under section 1172.6 

shall remain in force (in light of our resolution of the other issues 

below); but if the waiver was not voluntary, knowing and 

intelligent—and hence was invalid—then the denial of relief 

must be vacated and defendant must be accorded a new 

evidentiary hearing.

II. Reliance on Evidence Inadmissible Under 

Confrontation Clause

Defendant argues that the trial court erred in relying on 

testimony given by Carter that (1) she was defendant’s wife on 

the day of the shooting; and (2) defendant approached her that 
7

day to use the white Dodge Magnum, which was registered to 

her. However, Carter’s testimony was admitted at trial only

against Vaughn (and thus only heard by Vaughn’s separate jury); 

it was inadmissible against defendant because Carter had 

invoked her spousal privilege not to testify. Because a trial court 

conducting an evidentiary hearing under section 1172.6 may only 

consider evidence that was “previously admitted at any prior . . . 

trial” or “is admissible under current law” (§ 1172.6, subd. (d)(3)), 

the trial court erred in resting its implicit finding that defendant 

acted with the requisite intent to kill partly on the fact that 

defendant “us[ed] his wife’s car” rather than his own car—which 

tended, in the court’s view, to show that defendant knew in 

advance of the grave nature of what he and Vaughn were about 

to do. The People concede error.

Because we exercise our discretion to overlook defendant’s 

forfeiture of this issue, our analysis comes down to whether the 

trial court’s error was harmless beyond a reasonable doubt (due 

to the Confrontation Clause implications) (see People v. Burney

(2009) 47 Cal.4th 203, 232), and whether the error was 

reasonably likely to result in a different outcome (due to the 

statutory error in admitting the evidence) (People v. Clark (2021) 

62 Cal.App.5th 939, 968). We conclude that the error is not 

reversible because the trial court’s consideration of Carter’s 

testimony was harmless beyond a reasonable doubt for two 

reasons. 

First, Carter’s testimony itself adds very little beyond the 

evidence properly considered from defendant’s trial. Carter’s 

testimony that she was his wife is of little consequence because 

the jury elsewhere heard that she was in a “relationship” with 

him; the precise nature of that relationship adds little. Moreover, 
8

Carter’s testimony that defendant asked her to use her Magnum 

prior to the shooting—from which the trial court inferred that he 

had “switched cars” and hence was trying to avoid detection 

because he was about to commit a very serious crime—is also of 

little consequence because the jury elsewhere heard that 

defendant opted to drive a Magnum not registered in his name 

rather than the Audi registered in his name, which gives rise to 

the same inference that defendant tried to avoid detection 

because he was about to commit a very serious crime.

Second, the evidence regarding defendant’s efforts to avoid 

detection was but a sliver of the much larger pie of evidence that 

the trial court relied upon to find that defendant acted with the 

intent to kill. In totality, the trial court relied upon evidence that 

(1) defendant had a motive to kill people he believed to be rival 

gang members—specifically, (a) the ongoing “100 Days, 100 

Nights” feud, and (b) a rap music video made within six weeks 

before or after Bladen’s shooting, which referred to sadness at the 

death of the Rolling 100s gang member as well as the need for 

retaliation, and which featured Vaughn pretending to shoot 

people and prepping a gun while in the passenger seat of a car; 

(2) defendant took actions in advance of the shooting that 

indicate an intent to avoid detection for a more severe crime—

specifically, defendant drove the Magnum that was owned by 

Carter rather than the Audi owned in his name; (3) defendant 

and Vaughn planned to commit a shooting rather than a 

fistfight—specifically, (a) only Vaughn exited the car, which 

seems more consistent with a plan that Vaughn be a shooter 

rather than a pugilist (where Vaughn might need defendant as 

backup), and (b) defendant and Vaughn asked Boykins to trail 

them in a separate car that could act as a diversion after the 
9

shooting; (4) defendant took actions during the incident 

indicating his foreknowledge that it would involve a shooting 

rather than a fistfight—namely, defendant waited in the 

Magnum for Vaughn to fire off numerous shots; (5) defendant 

reminded Vaughn after the shooting to get rid of the gun; and (6) 

defendant failed to deny involvement in the shooting during the 

October 2015 jail call. All of this evidence was properly admitted 

at the trial and exists independently of Carter’s testimony; the 

trial court’s erroneous reliance on Carter’s testimony was 

accordingly harmless beyond a reasonable doubt.

Defendant resists this conclusion with three arguments. 

First, he argues that the sole evidence that Carter was his “wife” 

was her testimony. This is true, but the exact legal status of 

their relationship is of little import for the reasons explained 

above. Second, he argues that it was “not unusual” for him to 

drive the Magnum, but the frequency with which defendant chose

to drive the Magnum does not negate the importance of the fact 

that he specifically decided to drive a vehicle not registered in his 

name to the shooting. Third and lastly, defendant argues that, 

absent Carter’s testimony that the Magnum defendant drove that 

day was hers, there is insufficient evidence that the Magnum did 

not belong to him. But there is no evidence of anyone else 

involved in the shooting owning a white Dodge Magnum. 

III. Prosecutorial Error

Defendant argues that the prosecutor impermissibly 

referred to evidence never introduced at trial or at the 

evidentiary hearing—namely, that defendant and his wife 

“switched [cell] phones” prior to the shooting. To be sure, a 

prosecutor errs by “misstat[ing] the evidence or go[ing] beyond 

the record.” (People v. Fayed (2020) 9 Cal.5th 147, 204.) Here, 
10

the evidence indicated that Carter had two phones registered to 

her—one that she used, and one that defendant used. There was 

no evidence that Carter and defendant “switched phones” on the 

day of the shooting. Thus, the prosecutor committed error. The 

People concede as much.

Because we exercise our discretion to overlook defendant’s 

forfeiture of this issue, our analysis once again comes down to 

whether this error was harmless beyond a reasonable doubt (to 

the extent it implicates the federal due process protection against 

prosecutorial error) or whether the error was reasonably likely to 

result in a different outcome (to the extent it implicates merely 

the state due process protection). (People v. Fernandez (2013) 216 

Cal.App.4th 540, 564.) 

Although the trial court recited the prosecutor’s 

misrepresentation that Carter and defendant switched phones as 

one of the court’s many reasons for finding defendant harbored 

an intent to kill, the prosecutor’s error was harmless beyond a 

reasonable doubt for two reasons.

First, whether defendant “switched phones” is pertinent to 

whether he was trying to avoid detection due to the more 

egregious nature of the crime he was planning to commit, which 

tends to show he and Vaughn were intending to kill rival gang 

members rather than assault them. As noted above, however, 

the evidence that defendant drove a car not registered in his 

name rather than one traceable to him establishes that very 

same inference.

Second, whether defendant took actions to avoid detection 

is just one of the many categories of evidence—all described 

above—that overwhelmingly support the trial court’s finding that 

defendant acted with the intent to kill.
11

Defendant’s chief rejoinder is that the trial court’s citation 

of this nonexistent evidence means that it “influenced the court’s 

ruling” and mandates reversal because “there is no way to know 

how heavily the court weighed that factor.” Accepting this 

argument would mean that reversal would always be required 

whenever a trial court relies in part on a prosecutor’s 

misstatement of the evidence. That is not the law. Instead, the 

law requires us to evaluate whether the remaining evidence on 

the point at issue is so overwhelming in quantity or quality that 

the trial court’s reliance on the prosecutor’s misstatement was 

harmless beyond a doubt. That is the analysis we have 

undertaken.

IV. Trial Court’s Violation of Jury Instruction

In independently assessing whether defendant acted with 

the intent to kill, the trial court was obligated to follow 

CALCRIM No. 224—the instruction that obligates a trier of fact 

able to “draw two or more reasonable conclusions from the 

circumstantial evidence,” when “one of those reasonable 

conclusions points to innocence and another to guilt,” to “accept 

the one that points to innocence.” (CALCRIM No. 224.) 

Defendant urges that the trial court erroneously disregarded this 

instruction when it (1) rejected Boykins’s testimony that the plan 

was to commit a “beatdown” (the reasonable conclusion favoring 

innocence) in favor of the inference that Boykins had 

accompanied them in a separate car to provide a diversion (the 

reasonable conclusion favoring guilt); and (2) rejected the 

People’s gang expert’s testimony that the letters “HK” used by 

defendant to sign off the post-shooting text message did not 

“relate[] to the shooting itself” (the reasonable conclusion 

favoring innocence) in favor of the inference that “HK” is an 
12

acronym for “Hoover Killer” and hence is evidence of defendant’s 

motive (the reasonable conclusion favoring guilt). 

We independently determine that the trial court did not 

err. 

With respect to the first point, the trial court was not 

confronted with a conflict between Boykins’s testimony and a 

competing inference. That is because the trial court disbelieved

Boykins’s explanation that the plan was merely to assault rival 

gang members; the court observed that it was not “just 

automatically” going to “believe everything [Boykins] says.” To 

the extent defendant suggests that a trial court must always find 

witnesses credible when assessing whether there are conflicting 

inferences under CALCRIM No. 224, we reject that suggestion 

because it flies in the face of the settled rule that assessing 

witness credibility is inherently within the province of the trier of 

fact. (People v. Mumin (2023) 15 Cal.5th 176, 202.) With respect 

to the second point, the trial court did not face conflicting 

inferences necessitating resort to CALCRIM No. 224. The 

expert’s testimony that “HK” did not “relate[]” to Bladen’s 

shooting and hence was not an admission to Bladen’s shooting 

does not conflict with the trial court’s assessment that 

defendant’s use of an abbreviation for “Hoover Killer” still 

constituted evidence of his motive for shooting people he believed 

to be Hoover Criminals gang members. 

V. Procedural Error

Defendant argues that none of the trial exhibits—

specifically, the post-shooting text message, the rap music video, 

and the jailhouse call—were formally admitted into evidence at 

the evidentiary hearing, and thus cannot support the trial court’s 

denial of his section 1172.6 petition. He is wrong. The plain text 
13

of section 1172.6 states that “[t]he admission of evidence in the 

[evidentiary] hearing shall be governed by the Evidence Code, 

except that the court may consider evidence previously admitted at 

any prior hearing or trial that is admissible under current law . . .

.” (§ 1172.6, subd. (d)(3), italics added.) This italicized language 

provides that the evidence “previously admitted at . . . trial”—

which in this case indisputably includes the trial exhibits—may 

be considered at the evidentiary hearing; nothing in the statute 

requires formal re-admission of that evidence during the 

evidentiary hearing. We decline to create an additional 

procedural step obligating the trial court to utter the magic words 

“I re-admit this” in order to recognize evidence that is already 

part of the record of conviction. That would elevate form over 

substance and turn section 1172.6 proceedings into a game of 

procedural “gotcha.”

VI. Admission of Rap Music Video

Defendant argues that the trial court erred in relying on 

the rap music video in assessing whether defendant acted with 

the intent to kill because Evidence Code section 352.2 altered the 

standard by which the admission of such evidence is considered. 

The parties argue at length about whether Evidence Code section 

352.2 applies “retroactively,” and the question of retroactivity is a 

complex one in this case: Section 1172.6 provides that a trial 

court at an evidentiary hearing “may consider evidence 

previously admitted at any prior hearing or trial that is 

admissible under current law” (§ 1172.6, subd. (d)(3), italics 

added), and section 352.2 was enacted but was not yet effective at 

the time of defendant’s evidentiary hearing. We need not address 

the question of the applicability of Evidence Code section 352.2

because, even if we assume it is retroactively applicable in this 
14

case, the trial court did not abuse its discretion in admitting the 

rap music video under the new standard.

Evidence Code section 352.2 effectively modifies the default 

standard for assessing whether the probative value of proffered 

evidence is substantially outweighed by the danger of undue 

prejudice set forth in Evidence Code section 352. (Compare Evid. 

Code, § 352.2 with id., § 352.) More specifically, section 352.2

makes two modifications pertinent to this case. First, it dictates 

that the “probative value” of any “form of creative expression”—

which indisputably includes the rap music video at issue in this 

case—“is minimal” unless it was (1) “created near in time to the 

charged crime or crimes,” (2) “bears a sufficient level of similarity 

to the charged crimes or crimes,” or (3) “includes factual detail 

not otherwise publicly available.” (Evid. Code, § 352.2, subd. (a).) 

Second, it explains that “undue prejudice” “includes, but is not 

limited to,” (1) “the possibility that the trier of fact will . . . treat 

the expression as evidence of the defendant’s propensity for 

violence or general criminal disposition,” and (2) “the possibility 

that the evidence will explicitly or implicitly inject racial bias into 

the proceedings.” (Ibid.)

The trial court’s consideration of the rap music video in this 

case was proper because the court would have acted within its 

discretion in admitting it under Evidence Code section 352.2. 

Although the new statute deems the probative value of creative 

expression to be “minimal” except in three circumstances, two of 

those circumstances are present here: The video was “created 

near in time to the charged” murder on August 11, 2015 because 

the video was necessarily made between July 17, 2015 (the date 

the prominent Rolling 100s member was gunned down, as he was 

referred to in the video), and September 28, 2015 (the date 
15

defendant, who appeared in the video, was arrested); the video 

also “bears a sufficient level of similarity to the charged” murder 

because it features Vaughn mimicking shooting and shows him 

loading a gun while in the passenger seat of a car, which is where 

Vaughn sat prior to getting out to shoot Bladen. Because the 

video is not deemed to have “minimal” probative value, its 

probative value in helping to establish defendant’s motive and 

either a plan to kill (if it was made before the shooting) or a 

memorialization of a past killing (if it was made after the 

shooting) is not insignificant. And although there is some undue 

prejudice as defined by Evidence Code section 352.2 because 

there is always a “possibility” a video might be misused as 

evidence of propensity and a “possibility” of injecting racial bias 

into the proceedings, the trial court here explained why it found 

the video to be probative—and its reason did not include either of 

those unduly prejudicial reasons. Thus, the court would not have 

abused its discretion in concluding that the probative value of the 

video was not substantially outweighed by the danger of unfair 

prejudice.

Defendant responds with what boils down to three 

arguments. 

First, he argues that Evidence Code section 352.2 dictates a 

finding that the probative value of the video is “minimal” because 

(1) it was not made close in time; and (2) it is insufficiently 

similar to the shooting of Bladen because (a) Vaughn only 

pretended to shoot the gun he wielded in the video, and (b) 

Vaughn was depicted pretending to shoot at people in a crowd, 

while Bladen was only with his girlfriend and their children

when the shooting started and then moved away from them as 

the shooting continued. In our view, plus or minus six weeks on 
16

either side of the shooting is close in time. Further, we do not 

construe Evidence Code section 352.2 as requiring the level of 

similarity necessary to show identity or modus operandi. The 

trial court relied on the video as evidence of defendant’s motive, 

and the video is sufficiently similar to the charged attempted 

murder to prove motive as it refers to the recent death of a 

Rolling 100s member and refers to retaliation involving 

depictions of gunplay. 

Second, defendant argues that the injection of racial bias is 

inevitable, and hence undue prejudice arising therefrom will 

always mandate exclusion of rap music videos. We reject this 

reading of Evidence Code section 352.2 because the statute does 

not call for—yet it could have called for—blanket exclusion of 

such evidence; instead, it calls upon courts to engage in a more 

finely tuned balancing. 

Third and lastly, defendant argues that the trial court 

mistakenly believed that defendant was in the driver’s seat of the 

car during the video. But this mistake does not bear on the 

reason why the trial court relied on the video—to show motive for 

the killing.

VII. Cumulative Error

Defendant lastly argues that the trial court’s errors, when 

considered cumulatively, necessitate reversal. Although courts 

may consider whether “errors that are individually harmless may 

. . . have a cumulative effect that is prejudicial” (In re Avena

(1996) 12 Cal.4th 694, 772, fn. 32, dis. opn. of Mosk, J.), the two 

errors in this case—namely, the trial court’s erroneous reliance 

on Carter’s testimony regarding she and defendant “switching 

cars” and the prosecutor’s erroneous reference to “switching 
17

phones”—do not cumulatively call into question the 

overwhelming other evidence of defendant’s intent to kill.

DISPOSITION

We conditionally reverse the order denying relief under 

section 1172.6, and remand for the trial court to determine 

whether defendant voluntarily, knowingly and intelligently 

waived his right to be present at the October 31, 2022 evidentiary 

hearing. If there is a valid waiver, the order denying relief is 

otherwise valid and is affirmed. If there is not, the trial court 

must conduct a new evidentiary hearing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J. 

ASHMANN-GERST

_________________________, J.

CHAVEZ