Filed 8/26/26 P. v. Shehata CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B334632
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA101814)
v.
JAQUAN G. SHEHATA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Scott Millington, Judge. Affirmed as
modified.
Patricia S. Lai, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven E. Mercer and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
In 2023, a jury convicted defendant and appellant Jaquan
Shehata of one count of attempted premeditated murder and one
count of first degree murder arising from two shootings in 2020.
As to each count, the jury found true that Shehata personally
used and intentionally discharged a firearm causing great bodily
injury or death.
On appeal, Shehata contends there was insufficient
evidence to corroborate the accomplice testimony implicating him
as the shooter; the trial court erred by failing to provide a
supplemental instruction in response to one jury question and by
failing to investigate potential juror misconduct arising from
another; and the trial court committed several sentencing errors.
We correct an error in the sentence and the award of
custody credits and otherwise affirm the judgment. Sufficient
evidence corroborated the accomplice testimony identifying
Shehata as the shooter in both the attempted murder and
murder. Further, the trial court did not err in its response to the
jury’s question, by failing to investigate juror misconduct, or in
declining to exercise its discretion to dismiss firearm
enhancements.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged Shehata and Mahriya Lauriano with
the March 2020 attempted premeditated murder of Brian Bell
(Pen. Code, §§ 187, subd. (a), 664, subd. (a); count 1) and Shehata
and Jonathan McEwen with the February 2020 murder of Eswin
Batres (Pen. Code, § 187, subd. (a); count 2).1 As to both counts,
the information alleged that Shehata personally used a handgun
(§§ 12022.5, subd. (a), 12022.53, subd. (b)), personally and
intentionally discharged a handgun (§ 12022.53, subd. (c)), and
1 All further statutory references are to the Penal Code.
2
that he intentionally and personally discharged a handgun
causing great bodily injury and death (§ 12022.53, subd. (d)).
McEwen accepted a plea deal before trial. Shehata was
tried by a jury.
The People’s Evidence
A. February 29, 2020 shooting of Batres
1. McEwen
In October 2022, McEwen gave the prosecutor information
about the shootings. He and the prosecutor subsequently signed
an immunity and leniency agreement, which provided that
McEwen would plead guilty or no contest to attempted murder
and manslaughter. In exchange for his truthful testimony at
trial, McEwen would be sentenced to a total term of nine years’
imprisonment, and the murder charge would be dismissed.
McEwen testified that in 2020, he and Shehata were
affiliated with the Inglewood Weirdoz, or the Weirdoz Gangster
Bloods (WGB). They claimed several blocks in Inglewood as
territory. WGB’s territory overlapped or was adjacent to territory
claimed by rival gangs, including 18th Street and Imperial
Village Crips.2 McEwen identified a photograph of Shehata with
the letters “WGB” tattooed on his chest. Shehata was an active
member of WGB at the time of both shootings, but McEwen and
Lauriano were not.
On February 29, 2020, McEwen drove to Fontana in his red
Toyota Corolla to pick up Shehata. They headed to Lauriano’s
2 The People’s gang expert also testified that WGB, Imperial
Village Crips, and 18th Street were rival gangs. The expert
testified that the February 29 shooting occurred in WGB’s
territory and the March 2 shooting occurred in territory claimed
by the Imperial Village Crips.
3
house on 108th Street in Inglewood. After Lauriano told McEwen
she was not yet home, he decided to stop at a friend’s house
nearby on 108th Street. McEwen drove around the block, came
up the alley next to a church, turned west on 108th Street, and
stopped in the street in front of his friend’s house. A Hispanic
man walking on the sidewalk passed McEwen’s car and flashed
gang signs for 18th Street. Shehata, who was in the front
passenger’s seat, got out of the car and started walking in the
man’s direction. Shehata shot the man. He tucked the gun into
his waistband as he returned to the car. McEwen drove away
from the area.
Around 40 minutes after the shooting, Deandre Collins,
known as Nue Baby, texted McEwen. Collins asked which gang
the victim was from.3 McEwen named the 18th Street gang.
Later that night, McEwen, Lauriano, and Shehata visited a
friend in downtown Los Angeles. In a text exchange in the early
hours of March 1, McEwen said he was with “Lil Face.” “Lil
Face” was a reference to Shehata, who used the moniker FaceJr.
McEwen testified that he went home and Shehata and
Lauriano stayed with the friend downtown. The following
morning, McEwen passed by the scene of the shooting on his way
to work. He did not see Shehata in the area of the shooting on
March 1. That afternoon, Collins told McEwen by text that he
did not see security cameras at the site of the shooting. Later
3 McEwen testified to the meaning of text messages he sent
and received, which included unique spellings and jargon used by
members of the gang.
4
that day, McEwen, Lauriano, and Shehata rented a motel room
several miles east of Inglewood.4
2. Sergio Estrella
Estrella lived on 108th Street about six or seven houses
west of the church that was across the street from the scene of
the shooting. He could see the scene from his kitchen window.
On the evening of February 29, Estrella saw a red Corolla
pass through the area twice before stopping in the street in front
of the church. A man got out of the passenger’s side of the
Corolla. Estrella testified that the man was about the same
height as him—five feet, nine inches—and “skinny.”5 Estrella
then heard gunshots.
The car took off westbound on 108th Street, passing in
front of Estrella’s house. Estrella saw a driver and a passenger
in the car. He did not know if the driver was a man or a woman.
The passenger had hair “kind of like dreads or something like
that.” When asked to elaborate, he testified that the man had
“[t]ightly curbed [sic] hair.”
Estrella saw the same Corolla at 4:00 p.m. the following
day (March 1), parked about one block from the scene of the
shooting. Two Black men sat in the front of the car. That same
day, Estrella saw the Corolla drive past the church while he was
in his car waiting to turn onto 108th Street from the alley. The
4 A record of the motel registration was admitted into
evidence. The registration reflects an “in” time of “540” on March
1, 2020, and an “out” time of “11am,” but no date. McEwen’s
name and the name “Mahriya Lee” appear on the document,
which had space for only two names.
5 The parties stipulated that Shehata is five feet, nine inches
tall.
5
men looked at Estrella and then “ ‘look[ed] up towards the
church.’ ” Surveillance footage from the area corroborates
Estrella’s account of the Corolla driving past. Estrella noticed
the passenger’s hair, but his descriptions of it at trial varied
significantly and were inconsistent. However, to Estrella, the
passenger looked like the same person he saw at the scene of the
shooting “because of the hairstyle.”
Estrella did not identify Shehata as the passenger in the
Corolla.
3. Law enforcement investigation
Law enforcement obtained security camera footage from
the church and a donut shop across the street from the scene of
the shooting, recorded on February 29. A red Corolla drove in an
alley that intersected with 108th Street just before 6:30 p.m. The
Corolla appeared to go around the block, then again turned onto
108th Street from the alley and stopped in the middle of the
street. A man in a white T-shirt got out of the passenger’s side of
the Corolla, jogged in the direction of a pedestrian who had just
walked by on the sidewalk, and raised his arms in a manner
consistent with firing a gun. The man then ran back to the
passenger’s side of the car, which hastily left the scene. Police
found the victim, Batres, shot dead on the sidewalk of 108th
Street.
Records for Shehata’s cell phone number on February 29
revealed that his phone received an incoming call at 6:01 p.m.,
placing him several blocks northeast of the crime scene.
The primary detective investigating the case testified that
after McEwen told him Collins was the person he was texting
after the February 29 shooting, the detective obtained a
photograph of Collins from a law enforcement database. The
6
photograph was admitted into evidence. It depicts Collins with a
small, teardrop-shaped tattoo under the corner of his right eye
and another indiscernible tattoo on the left side of his face.
B. March 2, 2020 shooting of Bell
1. Bell
In March 2020, Bell lived at a house near Cherry Avenue in
Inglewood. The garage backed into the alley that ran between
Cherry Avenue and the next street. On the morning of March 2,
Bell was cleaning his garage. The garage door was open. He saw
a red car pass through the alley and slow down. Five minutes
later, someone began shooting at him with a handgun.
When interviewed at the Inglewood Police Department,
Bell described the shooter as a light-skinned man with a tattoo
on his face and some facial hair. When asked at trial if he
recalled saying that the shooter had “either a teardrop or an
upside down cross,” Bell responded, “Yeah, it was something in
his face.” Bell also said the shooter was about six feet tall, and
Bell believed the shooter was someone he knew personally and
with whom he had an encounter several months earlier. Bell did
not know Shehata. He identified Shehata from a photographic
lineup, even though Shehata did not have a facial tattoo in the
picture.
In court, Bell again identified Shehata as the shooter. Bell
testified that when he looked at the photographic lineup he was
“pretty sure” of the identification. At the time of trial, he was
“100 percent sure.” Bell acknowledged that Shehata did not have
a tattoo on his face and that he had never seen Shehata before
the shooting. Bell attributed the inconsistency with his initial
statement to police to the fact that he “was in a panic mode”
when police initially interviewed him.
7
2. McEwen
McEwen testified that on the morning of March 2, he,
Lauriano, and Shehata left the motel in his Corolla to take
Lauriano home. McEwen was driving, Shehata was in the
backseat, and Lauriano was in the front passenger’s seat. While
driving up an alley in Inglewood, they saw a man sitting in his
garage. McEwen and Lauriano wanted to buy marijuana from
the man, so McEwen drove around the block and stopped on
Cherry Avenue where it intersected with the alley. Shehata and
Lauriano got out of the car and went into the alley. McEwen
heard gunshots. Shehata and Lauriano ran to the car and
“jumped in the back passenger seat on the driver’s side.”
Shehata was holding a gun when he got back in the car. McEwen
“took off.”
About 20 minutes after the shooting, McEwen texted
Collins that somebody in the territory of the Imperial Village
Crips had been shot. Collins responded, “[b]asically telling
[them] to calm down.” McEwen texted back, “can[’]t stop won[’]t
stop.” McEwen called Collins three times within half an hour
after the shooting.
McEwen took Lauriano home and drove Shehata back to
Fontana. On the drive to Fontana, Shehata “wanted to like brag
and tell people about” the shootings and wanted McEwen “to
relay the message” to other people in their gang.
In the afternoon on March 3, Shehata sent McEwen a text
asking if McEwen was “cool.” McEwen responded that he was
and asked Shehata if he was “good.” Shehata again asked if
McEwen was cool. McEwen confirmed that he was and said, “See
u this weekend Mr. DOA.” By “DOA,” McEwen meant “Dead On
Arrival.”
8
3. Brando Del Arenal
Del Arenal had a view of Cherry Avenue from his living
room. On the morning of March 2, he saw a red car parked in the
middle of Cherry Avenue. A man and a woman got out of the car
and walked down the alley. Del Arenal heard gunshots. He saw
the man tuck a handgun into his waistband as he was coming out
of the alley. Del Arenal testified the man was “maybe five-six,”
but he could not provide further details about the man’s
appearance. After refreshing his recollection with a transcript of
his earlier police interview, Del Arenal testified that the man
“looked kind of young” and “seemed like a light skinned Black
person.”
4. Nicholas Bobbs
Bobbs was assigned to the gang unit in the Inglewood
Police Department in March 2020. On March 2, 2020, Bobbs and
his partner were driving in an unmarked car in Inglewood. At
around 4:00 p.m., Bobbs saw a red Corolla that matched the
description of a vehicle the police were looking for. Bobbs’s
vehicle and the Corolla were stopped in traffic, headed in
opposite directions.
Bobbs could see the Corolla’s occupants in the two front
seats. Bobbs described the passenger as a light-skinned Black
man, with a “thin goatee, thin mustache, and an afro.” Bobbs
had an unobstructed view of the passenger for about one minute
while they were stopped in traffic.
On March 12, Bobbs reviewed three photographs of
Shehata at the police station. Bobbs positively identified
Shehata as the passenger in the Corolla from a photograph in
which Shehata had “afro hair sticking straight out.”
9
At trial, Bobbs again identified Shehata as the passenger in
the Corolla he saw on March 2. He was sure Shehata was the
same person he saw three years ago in the car, even though his
hair looked different.
5. Law enforcement investigation
The March 2 shooting took place approximately one mile
away from the February 29 shooting. Surveillance video footage
recorded on March 2 showed a red Corolla driving down an alley
that crossed Cherry Avenue at around 10:17 a.m. The Corolla
appeared to drive around the block and come to a stop on Cherry
Avenue, where it remained idling while two of its passengers
walked into the alley on foot. After walking some distance, one of
the individuals turned to the left, backed up, and raised his arms
as if shooting a gun. The two passengers ran back to the Corolla
and got in, one in the back, and the other in the front passenger’s
seat. The Corolla left the scene.
Law enforcement determined the Corolla was registered to
McEwen.
Cell phone records for Shehata’s number on March 2 reflect
that Shehata was just north of the crime scene at Cherry Avenue
around 4:30 p.m. The records showed subsequent tower
activation in Los Angeles about 15 minutes later, Rancho
Cucamonga just after 6:00 p.m., and San Bernardino just before
7:00 p.m., indicating Shehata was traveling eastbound during
that time.
A criminalist determined that a single firearm fired the
cartridge cases recovered from the February 29 and March 2
crime scenes.
10
Motion for Acquittal, Verdict, and Sentence
After the People rested, the defense moved for dismissal
under section 1118.1. The trial court denied the motion.
The jury convicted Shehata on both counts and found the
firearm enhancements true. The trial court imposed an
aggregate sentence of 90 years to life.
Shehata timely appealed.
DISCUSSION
I. The Evidence Sufficiently Corroborated McEwen’s
Testimony Identifying Shehata as the Shooter
A. Legal principles
On appeal, we uphold the jury’s verdict if there was
substantial evidence to support it. (People v. Johnson (1980) 26
Cal.3d 557, 576–578.) “[T]he court must review the whole record
in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (Id. at p. 578.)
The testimony of an accomplice is insufficient as a matter
of law to support a conviction unless it is corroborated. (People v.
Najera (2008) 43 Cal.4th 1132, 1137; People v. Cuevas (1995) 12
Cal.4th 252, 261.) Under section 1111, there must be evidence
that “tend[s] to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows
the commission of the offense or the circumstances thereof.”
“ ‘The trier of fact’s determination on the issue of
corroboration is binding on the reviewing court unless the
corroborating evidence should not have been admitted or does not
reasonably tend to connect the defendant with the commission of
11
the crime.’ ” (People v. Romero and Self (2015) 62 Cal.4th 1, 32–
33 (Romero and Self).) Section 1111 “require[s] ‘evidence tending
to connect the defendant with the crimes “without aid or
assistance from the testimony of” ’ the accomplice. [Citation.] . . .
[E]vidence corroborating accomplice testimony ‘ “need not . . .”
[citation] . . . corroborate every fact to which the accomplice
testifies [citation], and “ ‘may be circumstantial or slight and
entitled to little consideration when standing alone.’ ” ’
[Citation.] But the evidence must nonetheless connect the
defendant to the crime itself, rather than simply connect the
accomplice to the crime.” (People v. Perez (2018) 4 Cal.5th 421,
452.)
“To determine if sufficient corroboration exists, we must
eliminate the accomplice’s testimony from the case, and examine
the evidence of other witnesses to determine if there is any
inculpatory evidence tending to connect the defendant with the
offense.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543
(Falconer).) “ ‘ “The entire conduct of the parties, their
relationship, acts, and conduct may be taken into consideration
by the trier of fact in determining the sufficiency of the
corroboration.” ’ [Citation.]” (People v. Rodriguez (2018) 4
Cal.5th 1123, 1128; People v. Trujillo (1948) 32 Cal.2d 105, 111.)
We determine whether there is legally sufficient evidence to
corroborate an accomplice’s testimony “without weighing the
evidence and viewing the evidence in the light most favorable to
the judgment.” (People v. Pedroza (2014) 231 Cal.App.4th 635,
650 (Pedroza).)
B. Discussion
Shehata contends McEwen’s testimony identifying Shehata
as the shooter in both crimes was insufficient to support the
12
convictions because it lacked adequate corroboration. We
disagree.
Bell identified Shehata as the shooter in the March 2
incident. This was significant corroboration of McEwen’s
testimony inculpating Shehata. Shehata contends that
inconsistencies in Bell’s eyewitness identification, and the
primary detective’s use of unduly suggestive photographic
lineups, undermine the corroborative value of Bell’s identification
of Shehata as the shooter.6 However, in reviewing the sufficiency
of non-accomplice testimony, “[i]t is the function of the trier of
fact . . . to pass upon the strength or weakness of testimony
tending to establish identification.” (People v. Blackwell (1967)
257 Cal.App.2d 313, 319 (Blackwell).) We do not reweigh such
testimony or disturb inferences drawn from it that are supported
by substantial evidence. (Id. at p. 320; see also People v. Lindsay
(1964) 227 Cal.App.2d 482, 493–494 [strength of identification
goes to weight of evidence and credibility of witnesses, which are
“directed solely to the attention of the jury”].) Defense counsel
extensively cross-examined Bell and the other witnesses
regarding their descriptions and identifications. Counsel also
thoroughly cross-examined the primary detective about his
practices for photographic lineups. The jury’s verdict indicates
that it resolved questions regarding the reliability of the
identification evidence in the People’s favor. We do not reweigh
evidence or credibility determinations when evaluating whether
6 Shehata does not argue that the photographic
identifications violated due process or raise any other challenge
to this evidence independent of his arguments pursuant to
section 1111.
13
accomplice testimony is sufficiently corroborated. (Pedroza,
supra, 231 Cal.App.4th at p. 650.)
Bell’s identification of Shehata informed the relevance and
value of other corroborating evidence. Forensic evidence
established that the same gun was used in both shootings. This,
when considered with Bell’s eyewitness identification, implicated
Shehata as the shooter in the February 29 shooting.
In addition, cell phone location data placed Shehata in
Inglewood on the days each shooting occurred. McEwen’s
Corolla, in which Shehata was identified riding as a passenger on
March 2, was involved in each crime. (See People v. Valdez
(2012) 55 Cal.4th 82, 148 [testimony connecting defendant to car
from which passengers exited on foot, fired shots, and returned to
car “while the driver remained inside” corroborated accomplice
testimony that defendant was the shooter].)
The similarity of the shootings also tended to connect
Shehata to the crimes since Bell positively identified him as the
March 2 shooter. Both shootings were carried out in the same
fashion: the Corolla cased each scene by driving down alleys and
around the block, passengers exited the Corolla on foot while the
driver remained in the idling vehicle in the middle of the street,
and, after shots were fired, the passengers returned to the
Corolla to make a quick getaway. (See People v. Washington
(1969) 71 Cal.2d 1061, 1093 [accomplice’s testimony that
defendant robbed victim corroborated by testimony identifying
defendant as participant in similar robberies on same night and
in same vicinity, and by witness’s identification of car driven
away from scene that “matched the description of the car given
by other victims as the one in which defendant was riding”]; see
also Blackwell, supra, 257 Cal.App.2d at pp. 320–321 [eyewitness
14
descriptions of defendant and evidence that forged checks were
passed in grocery stores in same city, bore same printed name,
and used in connection with small purchases over brief period
corroborated accomplice testimony that defendant conspired to
commit forgery].)
On appeal, Shehata argues that individual pieces of
evidence fall short of establishing that Shehata was the shooter.
For example, Shehata argues that the video surveillance was not
clear enough to identify him at the scene of either crime, evidence
that the same gun was used in both shootings did not connect
Shehata to the crime, and McEwen’s text messages did not
expressly identify Shehata as the shooter. However, for evidence
to sufficiently corroborate accomplice testimony, it need not
“ ‘ “establish by itself . . . that the defendant committed the
offense charged” ’ ” (People v. Rissman (1957) 154 Cal.App.2d 265,
277), “independently establish the identity of the victim’s
assailant” (People v. Abilez (2007) 41 Cal.4th 472, 506), or
“corroborate every fact to which the accomplice testifies.”
(Romero and Self, supra, 62 Cal.4th at p. 32.) Instead, the
evidence must only “tend[ ] to connect the defendant with the
offense.” (Falconer, supra, 201 Cal.App.3d at p. 1543.) As
explained above, the corroborating evidence in its totality
sufficiently connected Shehata to each shooting.
II. The Trial Court Did Not Abuse Its Discretion With
Respect to the Jury Questions
Shehata contends the trial court erred by failing to provide
a supplemental response to the jury’s question about defense
evidence and by failing to investigate juror misconduct. We
disagree.
15
A. The trial court’s response to the jury’s question
about defense witnesses and alibi evidence was
proper
1. Background
After the presentation of evidence, the trial court
instructed the jury with CALCRIM No. 220: “The fact that a
criminal charge has been filed against the defendant is not
evidence that the charge is true. You must not be biased against
the defendant just because he has been arrested, charged with a
crime, or brought to trial. [¶] A defendant in a criminal case is
presumed to be innocent. This presumption requires that the
People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove something, I mean
they must prove it beyond a reasonable doubt. [¶] Proof beyond a
reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to
some possible or imaginary doubt. [¶] In deciding whether the
People have proved their case beyond a reasonable doubt, you
must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves
the defendant guilty beyond a reasonable doubt, he is entitled to
an acquittal and you must find him not guilty.”
The court reiterated that the People bore the burden of
proving Shehata’s guilt beyond a reasonable doubt in its
instructions on circumstantial evidence; eyewitness
identification; defendant’s out-of-court statements; deliberation
and premeditation for attempted murder; first degree murder;
and all firearm enhancements.
16
The court also instructed the jury with CALCRIM No. 300,
which states: “Neither side is required to call all witnesses who
may have information about the case or to produce all physical
evidence that might be relevant.” Further, in instructing the jury
that Shehata had a constitutional right not to testify, the court
stated that Shehata “may rely on the state of the evidence and
argue that the People have failed to prove the charges beyond a
reasonable doubt.”
During the defense closing argument, defense counsel
began by informing the jury his argument would be shorter than
the prosecutor’s because: “I don’t have the burden of proof.” In
the prosecutor’s rebuttal argument, the prosecutor also informed
the jury: “[Defense counsel] has absolutely no obligation to give
you a reasonable explanation of the evidence because that’s not
his burden.”
After deliberating for around an hour, the jury submitted
three questions to the court. The jurors wanted to know if they
could ask if Shehata had tattoo removal or a fake tattoo. They
also asked why the primary detective had not investigated
Collins. The third question was: “Why did the defense have no
witnesses or alibi? Can we take into account that they had no
witnesses or alibi?”
In a colloquy with counsel outside the jury’s presence, the
court proposed responding to the jury’s third question by
repeating the second paragraph of CALCRIM No. 220. Defense
counsel requested that the court add that the jury “cannot
consider that the defendant did not put on witnesses or an alibi
as part of the deliberations.” The court denied the request.
The court provided the following response to the jury with
respect to its third question: “A defendant in a criminal case is
17
presumed to be innocent. This presumption requires that the
People prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you that the People must prove something, I
mean they must prove it beyond a reasonable doubt.”7
2. Legal principles
“After a jury retires to deliberate, ‘[s]ection 1138 imposes
upon the court a duty to provide the jury with information the
jury desires on points of law.’ [Citation.]” (People v. Franklin
(2018) 21 Cal.App.5th 881, 887 (Franklin).) This also requires
the court to “ ‘ “clear up any instructional confusion expressed by
the jury.” ’ [Citation.]” (People v. Doane (2021) 66 Cal.App.5th
965, 980.)
“The court has a primary duty to help the jury understand
the legal principles it is asked to apply. [Citation.] This does not
mean the court must always elaborate on the standard
instructions. Where the original instructions are themselves full
and complete, the court has discretion under section 1138 to
determine what additional explanations are sufficient to satisfy
the jury’s request for information.” (People v. Beardslee (1991) 53
Cal.3d 68, 97.) This requires a court to “do more than
figuratively throw up its hands and tell the jury it cannot
help. . . . It should decide as to each jury question whether
further explanation is desirable, or whether it should merely
reiterate the instructions already given.” (Ibid.) We review the
trial court’s decision not to provide further instructions for an
7 The jury subsequently asked if there was “additional
guidance/definition of reasonable doubt beyond what was
provided in [CALCRIM No.] 220.” With the consent of both
parties, the court responded: “No. Reasonable doubt is defined in
CALCRIM [No.] 220.”
18
abuse of discretion. (Franklin, supra, 21 Cal.App.5th at p. 887,
fn. 4.)
3. Discussion
Shehata contends that the trial court erred by failing “to
provide adequate supplemental instruction to the jury regarding
whether the defense had any burden to produce evidence.” He
argues the error impermissibly allowed the jury to believe the
defense had a burden to prove Shehata’s innocence. We conclude
the trial court’s response was not an abuse of discretion.
Although the trial court had previously instructed the jury
that the People had the burden of proof, the defense had no
corresponding burden, neither party had to produce all witnesses
with information about the case, and the defendant could rely on
the state of the evidence, the jury asked why the defense did not
present an affirmative case at trial and whether this fact should
impact its deliberations. The jury’s question may have reflected
that it did not understand the practical effect of the court’s
instructions on the parties’ burdens at trial or on the jurors’
consideration of the evidence during deliberations. Indeed, the
prosecutor suggested the jury’s questions indicated it had a
fundamental misunderstanding of the law.
The trial court’s response, however, addressed any
inclination the jury may have had to shift the burden of proof to
the defense. The instruction reiterated that Shehata was
presumed innocent and that the People were required to prove
Shehata’s guilt beyond a reasonable doubt. This reinforced the
prior instructions and the statements of both counsel during
closing arguments reminding the jury that the defense had no
burden of proof.
19
Further, we agree with the People that the trial court
reasonably rejected the defense request for a supplemental
instruction categorically prohibiting the jury from considering
Shehata’s failure to call witnesses or present alibi evidence. As
explained in People v. Ford (1988) 45 Cal.3d 431, “The failure of a
defendant to call an available witness whom he could be expected
to call if that witness testimony would be favorable is itself
relevant evidence.” (Id. at p. 448.) It was permissible for the jury
to consider the state of the evidence. (People v. Steskal (2021) 11
Cal.5th 332, 351 [prosecutors “may make ‘ “comments based upon
the state of the evidence or upon the failure of the defense to
introduce material evidence or to call anticipated witnesses” ’ ”];
People v. Rhoades (2019) 8 Cal.5th 393, 404, 448 [prosecutor
commented on defense’s failure to call relevant witness to
corroborate defendant’s alibi testimony]; People v. Wilson (2005)
36 Cal.4th 309, 338 [prosecutor permissibly pointed out
defendant did not present evidence supporting his testimony that
he shot and killed victim out of fear co-assailant would kill him];
People v. Grant (1968) 268 Cal.App.2d 470, 475 [“it is permissible
to refer generally to the failure of the defense to offer any
evidence in opposition to the People’s case”].)
We acknowledge that the trial court’s response did not
directly answer the jury’s question of whether it could take into
account that Shehata “ha[d] no witnesses or alibi.” It may have
been wise for the trial court to repeat the second half of
CALCRIM No. 355, informing the jury that the defendant “may
rely on the state of the evidence and argue that the People have
failed to prove the charges beyond a reasonable doubt.” But even
without further instruction, the court’s response addressed the
key issue and protected Shehata’s fundamental rights by
20
instructing the jury, correctly, that the People bore the burden of
proof, beyond a reasonable doubt, as to Shehata’s guilt and as to
every element of the crimes. We find no abuse of discretion.
B. The trial court did not abuse its discretion by
failing to investigate a juror’s question about
the consequences of deadlock
1. Background
On the second day of deliberations, the jurors informed the
court that they had reached a “stalemate” as to both counts. The
court polled the jury as to the likelihood of reaching a unanimous
verdict. During the inquiry, one juror began to ask the court a
question about the consequences of a deadlock. The court
interrupted the juror and directed her to submit the question in
writing. After completing its inquiry, the court concluded the
jury was not hopelessly deadlocked and ordered the jurors to
resume deliberations the following morning.
When proceedings began the next day, the court informed
counsel that it had received the following written question from
the juror: “If we as a jury say that we’re at a deadlock and say
there’s nothing the judge can do to help, does the case get
dropped (i.e.[,] the defendant is released)?” After conferring with
counsel, the court gave the following response to the jury before it
resumed deliberations: “It is your duty to talk with one another
and to deliberate in the jury room. You should try to agree on a
verdict if you can. Each of you must decide the case for yourself
but only after you have discussed the evidence with the other
jurors. You must reach a verdict without any consideration of
punishment.” Neither the People nor defense counsel objected to
the court’s response.
21
2. Legal principles
Section 1089 authorizes a court to discharge a juror if there
is good cause to find the juror is “unable to perform his or her
duty . . . .” (§ 1089.) “Good cause exists to discharge a juror when
the juror loses his or her ability to render a fair and impartial
verdict based on the evidence presented at trial.” (People v.
Barton (2020) 56 Cal.App.5th 496, 508.)
“ ‘ “The decision whether to investigate the possibility of
juror bias, incompetence, or misconduct—like the ultimate
decision to retain or discharge a juror—rests within the sound
discretion of the trial court. [Citation.] . . . [¶] . . . [A] hearing is
required only where the court possesses information which, if
proven to be true, would constitute ‘good cause’ to doubt a juror’s
ability to perform his duties and would justify his removal from
the case. [Citation.]” [Citation.]’ [Citations.] ‘ “ ‘The court does
not abuse its discretion simply because it fails to investigate any
and all new information obtained about a juror during trial.’ ”
[Citation.]’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622,
702.)
3. Discussion
Shehata argues that the juror’s question demonstrated “an
obvious refusal to follow” the court’s original instruction that the
jury had to reach a verdict “without any consideration of
punishment,” thus triggering the court’s duty to investigate
under section 1089. We disagree. The juror’s question did not
constitute misconduct under section 1089.8
8 Because we do not resolve the claim based on forfeiture, we
need not address Shehata’s related claim of ineffective
assistance of counsel.
22
“ ‘[I]n cases not involving the death penalty, it is settled
that punishment should not enter into the jury’s deliberations.’
[Citations.] ‘It is fundamental that the trier of fact, be it court or
jury, must not consider the subject of penalty or punishment in
arriving at its decision of guilt or innocence.’ [Citation.]
Sentencing ramifications are ‘irrelevant to the jury’s factfinding
function’ in a noncapital case. [Citation.] That is because
‘knowledge of the permitted or statutorily required punishment
may cause or influence the jury to return a verdict designed to
result in a particular penalty, rather than one based on the facts
and applicable law of a case.’ [Citation.]” (People v. Flores (2021)
70 Cal.App.5th 100, 110.)
Here, there is no evidence that considerations of
punishment entered the jury’s deliberations. There is no
evidence that the jury at large considered the effect of deadlock
during deliberations, or that there was even any opportunity for
the jury to do so. A single juror posed the question during the
court’s inquiry about deadlock; the court directed the juror to
submit the question in writing; the trial court excused the jury
for the day immediately after it completed its inquiry; and the
court indicated it had already received the juror’s note the
following morning and provided an answer before the jury
resumed deliberations.
A single juror’s question about the consequences of
deadlock, properly addressed to the court with no suggestion of
any wider discussion among the jury, falls far short of misconduct
requiring investigation by the trial court. The juror’s question
alone did not constitute misconduct. Indeed, the juror’s decision
to ask the court about the consequences instead of speculating
with fellow jurors weighs against a finding of misconduct. (See
23
People v. Lucas (2014) 60 Cal.4th 153, 320, fn. 64 [jury that
“dutifully expressed its concern by asking the court” about
deadlock “instead of relying on speculation or extrinsic
information” was not misconduct and did not trigger trial court’s
duty to inquire further], disapproved on other grounds by Romero
and Self, supra, 62 Cal.4th at p. 53, fn. 19.) The court’s response
to the juror’s question reiterated that the jury could not consider
punishment and there was no indication the juror failed to abide
by the instruction after it was repeated.
III. Sentencing Issues
The court sentenced Shehata to 40 years to life for
premeditated attempted murder (count 1), consisting of 15 years
to life plus an additional 25 years to life under section 12022.53,
subdivision (d), and a consecutive 50 years to life for murder
(count 2), consisting of 25 years to life on the base count plus an
additional 25 years to life for the firearm enhancement under
section 12022.53, subdivision (d). The court stayed the
enhancements under section 12022.53, subdivisions (b) and (c)
and section 12022.5, subdivision (a). Defense counsel informed
the court that Shehata had 1,253 days of actual custody credits.
A. Dismissal of firearm enhancements under
section 1385
1. Background
At sentencing, the People moved to stay all firearm
enhancements pursuant to the policy directive of the District
Attorney at the time. Defense counsel joined in the People’s
request. The court denied the motion. The court reasoned that
Shehata, McEwen, and Lauriano “were driving around looking
for people to kill,” and Shehata committed “cold blooded” murder
and attempted murder, noting that he shot Batres in the back
24
and his shooting of Bell was unprovoked. The court
acknowledged it had the discretion to dismiss firearm
enhancements due to the presence of two mitigating
circumstances: the existence of multiple enhancements and the
possibility that the application of an enhancement would result
in a sentence greater than 20 years. Yet, the court found “that
dismissing those enhancements would endanger public safety.
[¶] As I indicated you are a cold blooded killer driving around the
community attempting to kill anybody that you ran into.”
2. Discussion
Shehata contends that the trial court abused its discretion
in determining that dismissing the firearm enhancements would
endanger public safety based solely on his current level of
dangerousness. We disagree.9
Section 1385, subdivision (a), authorizes the trial court to
strike a charge or enhancement “in furtherance of justice.”
Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 721,
§ 1) amended the statute to require courts to afford “great
weight” to specific mitigating circumstances. (§ 1385,
subd. (c)(2)(A)–(I).) These circumstances include when
“[m]ultiple enhancements are alleged in a single case”—requiring
dismissal of “all enhancements beyond a single enhancement”—
and when “[t]he application of an enhancement could result in a
sentence of over 20 years”—requiring dismissal of the
enhancement. (Id., subd. (c)(2)(B), (C).) “Proof of the presence of
one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.
9 The People did not respond to this argument in their
appellate briefing.
25
‘Endanger public safety’ means there is a likelihood that the
dismissal of the enhancement would result in physical injury or
other serious danger to others.” (Id., subd. (c)(2).)
Shehata’s argument on appeal relies on People v. Gonzalez
(2024) 103 Cal.App.5th 215 (Gonzalez), which concluded that a
trial court abused its discretion by expressly relying solely on the
defendant’s dangerousness at the time of sentencing to determine
that striking an enhancement under section 1385 would
endanger public safety. The Gonzalez court explained that while
a trial court appropriately considers current dangerousness, “a
crucial part of the inquiry is how the dismissal of the
enhancement will impact the length of the defendant’s sentence.”
(Gonzalez, at p. 228.) Thus, trial courts deciding whether
dismissing an enhancement would endanger public safety must
consider whether the defendant has no prospect of being released
until elderly even without the enhancement, and, in the case of a
lengthy indeterminate sentence, that the Board of Parole
hearings (and the Governor in murder cases) will also assess the
ongoing dangerousness of any defendant before release on parole.
(Ibid.)
Shehata argues that the trial court abused its discretion
here by focusing singularly on Shehata’s present conduct. He
contends the matter should be remanded to allow the trial court
to conduct a forward-looking inquiry as articulated in Gonzalez.
We find no abuse of discretion on the record before us. Although
the court described the nature of Shehata’s current crimes and
the danger to public safety factor, the court did not state that its
public safety concerns were based solely on Shehata’s current
level of dangerousness. On a silent record, we presume that the
trial court properly considered all relevant factors in declining to
26
dismiss the enhancement. (People v. Ramirez (2021) 10 Cal.5th
983, 1042 [“Absent evidence to the contrary, we presume that the
trial court knew the law and followed it.”]; People v. Williams
(2018) 19 Cal.App.5th 1057, 1063 [determination of a defendant’s
danger to society “is necessarily a forward-looking inquiry” that
requires a trial court to “look to when a defendant would be
released if the petition is granted and the defendant is
resentenced”].)
Gonzalez is therefore distinguishable. There, the trial
court stated: “ ‘I think presently [the defendant] does represent a
danger to society, and for that reason, while I am mindful of the
prohibition set forth in [section] 1385, I do think it is appropriate
for the Court to impose an additional 25 years to life for the gun
use enhancement . . . .’ ” (Gonzalez, supra, 103 Cal.App.5th at
p. 224, italics added.) The Fourth District concluded that the
trial court’s “singular focus on whether the defendant currently
poses a danger” was error. (Id. at p. 228.) The record here does
not establish that the trial court employed the same “singular
focus” in declining to exercise its discretion.
To the extent Shehata contends the trial court abused its
discretion by failing to expressly address the length of his
sentence, this argument fails. The trial court was not required to
identify the time period it was relying on in declining to dismiss
the enhancement or to explain its reasoning for declining to do so.
(People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [court does
not need to use “particular language” when declining to dismiss
an enhancement; no statutory requirement that a trial court
must state its reasons for declining to dismiss on the record].)
27
B. Shehata’s sentence for attempted murder and
calculation of custody credits
The trial court sentenced Shehata to 15 years to life for
deliberate and premeditated attempted murder. Shehata
contends, and the People concede, that this sentence was
incorrect as a matter of law.
Willful, deliberate, and premeditated attempted murder is
punishable by life with the possibility of parole. (§ 664, subd. (a).)
A defendant convicted of attempted murder cannot be paroled
until he has served at least seven years of his sentence. (§ 3046,
subd. (a)(1); People v. Jefferson (1999) 21 Cal.4th 86, 96 [§ 3046
sets minimum term for defendant convicted of premeditated
attempted murder].) We modify the judgment to reflect a
sentence on count 1 of seven years to life.
Shehata also argues that he is entitled to an additional day
of custody credit. Shehata was arrested on March 19, 2020, and
sentenced on August 24, 2023. He is therefore entitled to 1,254
days of custody credit. (People v. Smith (1989) 211 Cal.App.3d
523, 527 [§ 2900.5 requires court “to award credits for all days in
custody up to and including the day of sentencing”].)
28
DISPOSITION
We modify the judgment as follows. The sentence on
count 1 is corrected to reflect the seven-year minimum term for
attempted premeditated murder. The judgment must also reflect
Shehata’s presentence actual custody credits of 1,254 days. We
direct the trial court to amend the abstract of judgment to reflect
the above corrections and to forward a copy of the amended
abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, P. J.
We concur:
HANASONO, J.
KARNOW, J.*
* Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
29