Filed 8/11/26 P. v. Valentin CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B343054
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA511991)
v.
ZAMIR VALENTIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed.
Rachel Varnell, 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, Jonathan Kline and Melanie Dorian, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Zamir Valentin (defendant) was
convicted of second degree murder of his girlfriend, Shaenate M.,1
after he shot and killed her during an argument. Defendant
contends the trial court improperly instructed the jury regarding
implied malice using CALJIC No. 8.11 and failed to sua sponte
instruct the jury on involuntary manslaughter as a lesser
included offense of second degree murder. He alleges his trial
counsel provided ineffective assistance by failing to object to the
prosecutor’s closing argument regarding heat of passion and the
cooling period, and by failing to contest the court’s hearsay ruling
surrounding a statement he made immediately following the
shooting. He avers the cumulative effect of each of these errors
was prejudicial. Finally, he asserts the trial court abused its
discretion in failing to strike the firearm use enhancement under
Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill 81). We
are not persuaded and affirm the judgment.
BACKGROUND
I. Procedural history
Defendant was charged by information with one count of
murder (Pen. Code,2 § 187, subd. (a); count 1). The information
further alleged defendant personally used a firearm during the
commission of the offense, within the meaning of section 12022.5,
subdivision (a). The People also alleged the following
1 During trial, the court granted the People’s request to
strike Shaenate’s last name from the record.
2 Unless otherwise designated, all further statutory
references are to the Penal Code.
2
aggravating factors pursuant to the California Rules of Court:3
(1) defendant “has suffered prior convictions … that are
numerous and of increasing seriousness” within the meaning of
rule 4.421(b)(2); (2) defendant “was armed with and used a
weapon” during the commission of the offense within the
meaning of rule 4.421(a)(2); and (3) the offense “involved great
violence, great bodily harm, threat of great bodily harm, and
other acts disclosing a high degree of cruelty, viciousness, and
callousness” as set forth in rule 4.421(a)(1).
Following a jury trial, defendant was found guilty of second
degree murder, and the jury found the allegation of personal use
of a firearm to be true.
Defendant waived his right to a jury trial on the
aggravating factors. Citing mitigating circumstances pursuant to
section 1385, subdivision (c)(2)(D) and (E) and no concerns for
public safety, defense counsel asked the court to dismiss the
firearm enhancement. Alternatively, counsel asked the court to
impose the low term for the enhancement. The People filed a
sentencing brief requesting the court sentence defendant to the
maximum of 25 years to life.
At sentencing, the court noted it had read and considered
defense counsel’s motion to dismiss and the People’s sentencing
brief and entertained oral argument from the parties. The court
denied defendant’s motion and sentenced defendant to 15 years
to life in count 1 and the midterm of four years for the firearm
enhancement.
Defendant timely filed his notice of appeal.
3 Unless otherwise designated, all further court rule
references are to the California Rules of Court.
3
II. Statement of facts
A. Background
Defendant and Aaron L.4 had known each other for about
two years and were best friends; both were unhoused and
“move[d] around together.” Aaron looked up to defendant, whom
he called “Detroit” and considered a brother. In January 2023,
defendant, his girlfriend Shaenate, Aaron, and Aaron’s girlfriend
Harmonnie were staying at the Metro Plaza Hotel in Los
Angeles.
B. Relationship between defendant and Shaenate
Aaron had personally witnessed Shaenate and defendant
argue many times before January 5, 2023, and described
Shaenate as consistently the aggressor. She was violent toward
defendant, cursed at and insulted him, and repeatedly accused
him of stealing money or infidelity. Aaron had seen Shaenate
punch and beat defendant many times. Whenever defendant and
Aaron were together, defendant would try to get away from
Shaenate, but she would always “track him down.”
About three or four months before January 5, Aaron
witnessed Shaenate pour gasoline over defendant’s tent and set it
on fire. Afterward, Shaenate “grab[bed a] skateboard from the
tent as she grab[bed] an electric scooter from the ashes of the
burnt tent.” Aaron also saw Shaenate steal defendant’s parked
scooter on another occasion and believed Shaenate stole
defendant’s Social Security check, causing defendant to cry that
“$1,000 was gone.”
4 Aaron L. was 15 years old at the time of these events and
16 at the time he testified at defendant’s trial. Accordingly, we
refer to him by his first name only.
4
On December 26, 2022,5 Los Angeles Police Department
(LAPD) Officer Chris Paek was on foot patrol at the Metro
Station on 7th and Figueroa Streets when his attention was
brought to an altercation between a man and a woman.6 When
Officer Paek arrived, Sergeant Miller had already detained
defendant; Miller stated the man had been seen pushing a
woman around. Officer Paek photographed a scratch on the right
side of defendant’s nose and a red mark on his neck. Meanwhile,
a woman, later identified as Shaenate, was yelling and acting
aggressively toward defendant. Officer Paek spoke to Shaenate
and found she was carrying mace, which Officer Paek seized. In
that incident, Shaenate was deemed the “dominant aggressor”
and was listed as the suspect. Jaheem Brown, apparently
defendant’s alias, was listed as the victim. The report notes the
two had been dating for a year and a half.
C. Events of January 5, 2023
On January 5, 2023, at approximately 9:45 p.m., defendant,
Aaron, Harmonnie, and Shaenate returned to their room at the
Metro Plaza Hotel. The group arrived together but, Shaenate
was still outside the room, and, as a result, she kicked the door to
the room. Defendant let her in. When defendant first entered
the hotel room that evening, Aaron saw him take a .40-caliber
semiautomatic gun out of his backpack and place it on the
5 At trial Aaron testified that about four months before the
murder, he saw Shaenate use mace on defendant at the 7th
Street train station and saw a visible bite mark on defendant’s
neck. This was not the first time Aaron had seen Shaenate use
mace on defendant.
6 Defendant attached the police report for this incident to his
motion to dismiss the firearm enhancement.
5
nightstand. Defendant had brought two burritos to the room;
defendant shared his with Aaron and gave the second burrito to
Shaenate.
Defendant and Shaenate began to argue over various
things. Defendant accused Shaenate of taking some of his
missing money, and she in turn accused him of infidelity. At
some point while they were arguing, defendant moved the gun
from the table to his waistband. Shaenate ripped open her
burrito and asked defendant, “Are you trying to poison me? You
trying to put drugs in me?” Defendant and Aaron “just laughed”
at the comments by Shaenate because she “seem[ed] off.” Aaron
told Shaenate to calm down and sober up, but she dismissed him
and continued to argue with defendant. At one point, Shaenate,
who had been sitting on the bed, got up and began hitting
defendant with her wrists and “throwing herself at him,” which
“caught [defendant] by surprise.” She was also “kicking and
screaming” and “tr[ied] to bite” him. Defendant was trying to
“reason and talk with her” to “deescalate the situation.”
Shaenate would not listen to reason, was saying “personal
stuff” and threatened to “badly hurt [defendant].” While hitting
defendant with her wrists, Shaenate was forcing defendant
toward the bathroom door. While pinned in the corner,
defendant took the gun from his waistband. With the gun in his
hand, defendant held Shaenate back with his fist to her chest and
repeatedly told Shaenate to “get off [him].” Shaenate continued
to insult defendant even though he had the gun in his hand.
Defendant started playing with the gun: he cocked the gun back
and kept taking bullets out of the clip and putting it back in
empty and was flicking the safety up and down. Defendant told
Aaron, “Pack your stuff. I’m about to blow this bitch” or “I’m
6
about to pop this B[itch].”7 Aaron understood this to mean
defendant did not want Aaron involved in a personal dispute and
did not believe defendant was being serious or literal.
Shaenate retreated and began to walk around the room,
going back and forth between the bed and the bathroom. During
this period, things calmed down, and defendant placed the gun on
the nightstand or a desk.
With the situation calm, Shaenate sat on the bed, leaning
back on the headboard. Shaenate then threw her burrito at
defendant. Defendant picked up the gun and said, “I’ll do it. I’ll
do it for real. I’ll do it.” The next thing Aaron remembered, “the
gun go[es] off” about five seconds after Shaenate threw the
burrito. Aaron summarized the situation, saying, “[Shaenate]
keeps on talking mess to Detroit, and sooner or later the gun goes
off when he’s messing around with her, and he accidentally shot
her in the head.” Aaron did not see defendant fire the gun
because he was looking at Shaenate; he saw the bullet strike her
in her face.
After the shooting, Harmonnie, who had been sitting in a
corner the entire time with her headphones on, ran out of the
room. Aaron called 911, but the operator “thought [he] was
joking” and he hung up. Aaron told defendant to grab his stuff,
and the two left. Surveillance video from the hotel showed three
people leaving the hotel room at approximately 10:15 p.m. on
January 5. Defendant and Aaron caught a train to Lancaster,
and two days later they went their separate ways.
7 When asked about his statement to police that defendant
said he was going to “kill this bitch,” Aaron maintained
defendant said “blow” not “kill” and testified if he told police
otherwise, he “was wrongly mistaken.”
7
D. Discovery of Shaenate and police investigation
On January 6, 2023, Jiangbo Zhang, a hotel
employee, was asked to check the room that had been occupied by
defendant and his group. The door was ajar, and after receiving
no response to repeated calls and knocks, Zhang entered and
found a woman lying on the bed with blood on the sheets. He
immediately called 911.
LAPD Officer Derek De Buck responded to the scene and
saw a deceased woman on the bed with a partially eaten burrito
in her right hand. De Buck recovered a spent .40-caliber Smith
and Wesson cartridge casing from the nightstand.
Defendant was arrested in Pasadena on January 7, 2023.
Pasadena Police Department Detective Ryan McInnis searched
defendant’s backpack and found a loaded firearm. The .40-
caliber semiautomatic handgun, its magazine, and the .40-caliber
round inside the chamber were booked into evidence and turned
over to LAPD Detective Hector Salas.
On January 11, 2023, Detective Salas met with Aaron at
the police station. The interview was video-recorded and played
for the jury. During the interview, Aaron told a different version
of events. Aaron stated that defendant had accused Shaenate of
messing with his food and taking his money, while Shaenate “was
trying to keep things chill.” Aaron also stated when they first
entered the hotel room, defendant took his gun from his backpack
and placed it on the nightstand; 15 minutes later defendant
retrieved the gun, began to yell at Shaenate, and kept “putting it
down, picking it up, reloading it, clocking [sic] it back” for “a good
amount of time”; and defendant said, “You guys better pack your
shit because I’m about to kill this bitch.” Aaron did not mention
during the interview that Shaenate had thrown the burrito at
defendant or struck him at any point during the incident.
8
E. Autopsy and forensic evidence
Deputy medical examiner Dr. Kevin Young performed an
autopsy on Shaenate on January 11, 2023. She had a single
gunshot wound to the head and a bullet lodged in her upper right
back. The manner of death was homicide, and the cause of death
was the gunshot wound to the head; the specific mechanism of
death was “[p]robably hemorrhage through the carotid artery.”
Dr. Young could not be sure about the distance from which the
gun was fired.
Criminalist Daniel Rubin examined the firearm and
determined it was fully functional. The gun had multiple safety
features: a thumb safety lever that had to be pushed down for the
gun to fire, a requirement that the gun be fully cocked, and a
firing pin block designed to prevent accidental discharge if
dropped. Testing confirmed the cartridge casing recovered from
the hotel room had been fired from defendant’s firearm.
F. Stipulation
The parties stipulated that, on January 11, 2023, defendant
suffered a conviction for misdemeanor willful infliction of corporal
injury on a cohabitant or intimate partner (§ 273.5, subd. (a)).
DISCUSSION
I. CALJIC No. 8.11 is a proper statement of the law
regarding implied malice
Defendant contends the court erred in failing to instruct
the jury “that a defendant acts with implied malice only if his
conduct carries a high probability of death.” (Capitalization
omitted.) Specifically, relying on People v. Reyes (2023) 14
Cal.5th 981, 989 (Reyes), defendant argues the jury should have
been instructed that, “[t]o suffice for implied malice murder, the
defendant’s act must not merely be dangerous to life in some
9
vague or speculative sense; it must involve[] a high degree of
probability that it will result in death.” Thus, because the court
“omit[ted] or misstate[d] an essential element” and his jury was
not instructed that “dangerous to human life” does not
necessarily mean something that carries a “high degree of
probability that it would result in death,” defendant’s rights were
violated and his conviction must be reversed. Respondent
contends defendant has forfeited this claim by failing to object in
the trial court, and, in any event, there was no error in the
instruction as given to the jury. We decline to address the
forfeiture question because the claim fails on the merits.
A. Applicable law and standard of review
“In reviewing a challenge to jury instructions, we must
consider the instructions as a whole.” (People v. Fitzpatrick
(1992) 2 Cal.App.4th 1285, 1294.) “‘“A claim of instructional
error is reviewed de novo.”’” (People v. Howard (2024) 104
Cal.App.5th 625, 661.)
“California law separates criminal homicide into two
classes: the greater offense of murder and the lesser offense of
manslaughter. [Citation.] Murder is defined as ‘the unlawful
killing of a human being … with malice aforethought’ (§ 187,
subd. (a)), while manslaughter is defined as ‘the unlawful killing
of a human being without malice’ (§ 192).” (People v. Schuller
(2023) 15 Cal.5th 237, 252 (Schuller).)
“[M]alice may be express or implied. [¶] [It] is express
when there is manifested a deliberate intention to unlawfully
take away the life of a fellow creature.” (§ 188.) “Murder is
committed with implied malice when ‘the killing is proximately
caused by “‘an act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another
10
and who acts with conscious disregard for life.’”’” (Reyes, supra,
14 Cal.5th at p. 988, quoting People v. Knoller (2007) 41 Cal.4th
139, 143 (Knoller).)
B. Analysis
Here, using CALJIC No. 8.11, the trial court instructed the
jury regarding implied malice as follows: “Malice is implied when:
[¶] 1. The killing resulted from an intentional act; [¶] 2. The
natural consequences of the act are dangerous to human life; and
[¶] 3. The act was deliberately performed with knowledge of the
danger to, and with conscious disregard for, human life.” (Italics
added.) Defendant asserts the Reyes decision, “implicitly
repudiated the then existing version of CALCRIM Number 520,”
which is essentially the same instruction as CALJIC No. 8.11
given in this case. We disagree.
In 2023, the California Supreme Court reaffirmed the
definition of implied malice as it has been explained in its past
jurisprudence. (Reyes, supra, 14 Cal.5th at pp. 988–989; see
Knoller, supra, 41 Cal.4th at p. 152 [“dangerous to life” and “‘a
high degree of probability that [the act] will result in death’”
mean the same thing]; see also People v. Nieto Benitez (1992) 4
Cal.4th 91, 111 [the two definitions embody the same standard &
held the implied malice instruction “correctly distills the
applicable case law”]; People v. Dellinger (1989) 49 Cal.3d 1212,
1221 (Dellinger) [same]; People v. Watson (1981) 30 Cal.3d 290,
300 (Watson) [same].) Thus, nothing in the Reyes decision has
rendered the implied malice instruction as given in CALJIC
No. 8.11, or the former version of CALCRIM No. 520, incorrect.8
8 After the Reyes decision, CALCRIM No. 520 was revised.
The modified instruction added language that clarifies, “[a]n
(act/[or] failure to act) is dangerous to human life if it involved a
11
In Reyes, the Supreme Court reiterated its previous
definition of the required objective mens rea for implied malice;
specifically, “[t]o suffice for implied malice murder, the
defendant’s act must not merely be dangerous to life in some
vague or speculative sense; it must ‘“involve[] a high degree of
probability that it will result in death.”’” (Reyes, supra, 14
Cal.5th at p. 989, quoting Knoller, supra, 41 Cal.4th at p. 152.)
Defendant acknowledges Reyes “did not expressly overrule”
its prior holdings in Watson and Dellinger but argues the analysis
in Reyes “directly refuted their view that the phrase ‘dangerous to
life’ adequately encapsulates the actus reus component of implied
malice murder.” Specifically, he argues the phrase “conduct
carrying a high probability of death” conveys that “the probability
of death from the act must be more than remote or merely
possible.” Defendant avers, as a result, the court “omit[ted] or
misstate[d] an essential element of [the] offense.” Not so. As the
Reyes court reiterated, “under the objective component of implied
malice, ‘“‘dangerous to life’”’ means the same thing as a ‘“high
degree of probability that”’ the act in question ‘“will result in
death.”’” (Reyes, supra, 14 Cal.5th at p. 989, quoting Knoller,
supra, 41 Cal.4th at p. 152.) If they mean the same thing,
nothing was omitted or misstated.
The specific context of Reyes also works against defendant.
Reyes did not involve jury instructions administered at trial or
determination of liability for an actual killer. Rather, Reyes
involved determining aider and abettor liability during a
high degree of probability that it would result in death.”
(CALCRIM No. 520 (Rev. Mar. 2024).) To date, the
corresponding instruction, CALJIC No. 8.11, used in this case has
not been so modified.
12
resentencing hearing held pursuant to section 1172.6. (Reyes,
supra, 14 Cal.5th at p. 984.) In so doing, the court found “Reyes’s
acts of bicycling into rival territory and chasing after [the
victim]’s car with [the actual shooter] and other fellow gang
members were too attenuated in the chain of events to have
proximately caused the killing; any causal link between Reyes’s
conduct and [the victim]’s death [wa]s tenuous at best.” (Id. at
p. 989.)
Defendant appears to argue, even if his act was dangerous
to human life, it does not necessarily follow that the jury would
have found the act involved a high degree of probability that it
would result in death. This argument is unavailing. Defendant
was not an aider and abettor; he was the actual killer. He did not
act as back up while riding into rival gang territory; he pointed a
gun directly at the victim’s face and fired. (See People v. Collins
(2025) 17 Cal.5th 293, 311 [“‘“In the context of implied malice, the
actus reus required of the perpetrator is the commission of a life-
endangering act.”’”].) His actions were not tenuously connected
to Shaenate’s death and were without question dangerous to
human life such that they “involved a ‘“high degree of probability
that [they would] result in death.”’” (Id. at p. 321.) Thus, even
assuming the language used in Reyes better articulates the
implied malice standard for the jury, the trial court did not err in
giving the jury a legally correct instruction. Moreover, because
our Supreme Court did not overrule or disapprove of its prior
cases (and instead referred to them approvingly), we find “the
instruction under [CALJIC No. 8.11] remains a correct statement
of law, notwithstanding any clarification in Reyes.” (People v.
Pierce (2025) 114 Cal.App.5th 508, 536.)
13
II. Substantial evidence did not support giving an
instruction on involuntary manslaughter
Defendant claims the trial court erred by failing to sua
sponte give lesser-included offense instructions regarding
involuntary manslaughter. Specifically, defendant argues the
evidence was sufficient to support a finding that he accidentally
shot Shaenate while brandishing a weapon. Respondent asserts
the court has no duty to instruct on involuntary manslaughter
because “Shaenate’s death was the probable consequence
naturally flowing from [defendant’s] act of pointing the gun
directly at her and pulling the trigger, not merely exhibiting or
using the gun.” We agree with respondent.
A. Applicable law
1. Standard of review
“We review a claim of instructional error de novo.
[Citation.] In doing so, we view the evidence in the light most
favorable to the defendant.” (People v. Mirabal (2025) 115
Cal.App.5th 708, 727.)
2. Duty to instruct
“‘A trial court has a sua sponte duty to “instruct on general
principles of law that are closely and openly connected to the
facts and that are necessary for the jury’s understanding of the
case”’” (People v. Mitchell (2019) 7 Cal.5th 561, 586), including
“‘on lesser included offenses when the evidence raises a question
as to whether all of the elements of the charged offense were
present’” (People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman), disapproved on another ground by Schuller, supra,
15 Cal.5th at p. 260). “[I]nsofar as the duty to instruct applies
regardless of the parties’ requests or objections, it prevents the
‘strategy, ignorance, or mistakes’ of either party from presenting
the jury with an ‘unwarranted all-or-nothing choice,’ encourages
14
‘a verdict … no harsher or more lenient than the evidence merits’
[citation], and thus protects the jury’s ‘truth-ascertainment
function’ [citation].” (Id. at p. 155.)
“However, we have never intimated that the rule is
satisfied once the jury has some lesser offense option, so that the
court may limit its sua sponte instructions to those offenses or
theories which seem strongest on the evidence, or on which the
parties have openly relied. On the contrary, as we have expressly
indicated, the rule seeks the most accurate possible judgment by
‘ensur[ing] that the jury will consider the full range of possible
verdicts’ included in the charge, regardless of the parties’ wishes
or tactics. [Citation.] The inference is that every lesser included
offense, or theory thereof, which is supported by the evidence
must be presented to the jury.” (Breverman, supra, 19 Cal.4th at
p. 155.)
On the other hand, “a court’s obligation to instruct on a
lesser included offense does not arise ‘whenever any evidence, no
matter how weak, is presented to support an instruction, but only
when the evidence is substantial enough to merit consideration
by the jury.’ [Citations.] In this context, ‘“[s]ubstantial evidence
is … evidence that a reasonable jury could find persuasive.”’”
(People v. Sevilla (2025) 115 Cal.App.5th 618, 625.)
3. Involuntary manslaughter
Involuntary manslaughter is the unlawful killing of a
human being without malice in “the commission of an unlawful
act, not amounting to a felony” or “the commission of a lawful act
which might produce death, in an unlawful manner, or without
due caution and circumspection” (§ 192, subd. (b)), essentially
acting with criminal negligence. Like voluntary manslaughter,
involuntary manslaughter is a lesser included offense of murder.
(People v. Thomas (2012) 53 Cal.4th 771, 813.)
15
“The misdemeanor of brandishing a weapon is committed
when a person draws or exhibits a firearm, in the presence of
another person, ‘in a rude, angry, or threatening manner.’ (§ 417,
subd. (a)(2).)” (People v. Thomas, supra, 53 Cal.4th at p. 814.)
“Accordingly, an accidental shooting that occurs while the
defendant is brandishing a firearm in violation of section 417
could be involuntary manslaughter.” (Ibid.) Where substantial
evidence supports it, an instruction on involuntary manslaughter
is required. (People v. Rogers (2006) 39 Cal.4th 826, 884.)
B. Analysis
Defendant acknowledges defense counsel did not request an
involuntary manslaughter instruction at trial and that such a
theory was never discussed. Nonetheless, he argues the court
had a sua sponte duty to instruct regarding involuntary
manslaughter because substantial evidence supported such an
instruction. Specifically, defendant points to Aaron’s testimony
that defendant “brandish[ed] a firearm just prior to an accidental
shooting” because he “pulled out a firearm that he placed in his
waistband and later on a table in the hotel room,” he “took the
clip out and put it back into the gun, empty, and he clicked the
safety up and down,” and “Aaron testified that the gun fired
‘when he’s messing around with her, and he accidentally shot her
in the head.’” Defendant points to People v. Lee (1999) 20 Cal.4th
47 (Lee) to support his claim. Lee is distinguishable.
In Lee, the defendant was extremely drunk—registering a
blood alcohol content of 0.26 percent after the shooting—and was
“staggering,” and “unable to stand.” (Lee, supra, 20 Cal.4th at
p. 53.) He and his wife began “arguing and pushing each other,”
Lee went to retrieve his handgun and “the couple continued to
push each other with the gun between them.” (Ibid.) Moments
16
later the shot was fired; defendant held his wife on the floor and
“begg[ed] her not to die.” (Ibid.)
Here, defendant and Shaenate had been arguing leading up
to the shooting. Shaenate threw pieces of her burrito at
defendant and accused him of trying to poison her. At one point,
earlier in the argument, Shaenate got up and began hitting
defendant, and defendant tried to “deescalate the situation.”
Shaenate continued to insult defendant even though he had the
gun in his hand. With the gun in his hand, defendant told Aaron,
“Pack your stuff. I’m about to blow this bitch” or “I’m about to
pop this B[itch].” After about 15 minutes of this back and forth
between defendant and Shaenate, things calmed down, defendant
put the gun back on the nightstand, and Shaenate sat back on
the bed.
According to Aaron, Shaenate then threw her burrito at
defendant. Defendant picked the gun back up and said, “I’ll do it.
I’ll do it for real. I’ll do it” and, seconds later, defendant shot
Shaenate in the face. The medical examiner was not able to
estimate the exact distance defendant was standing from
Shaenate at the time of the shooting but was able to ascertain it
was “likely a distant range wound”—at least more than three to
four feet—because there was no “soot [or] stippling” on
Shaenate’s body. Shaenate was found by police lying on the bed
with a half-eaten burrito in her hand.
Unlike Lee, there is no evidence defendant and Shaenate
were physically scuffling or touching in any way at the time
defendant shot Shaenate. Instead, the evidence established the
shooting took place while the two were some distance away from
each other and defendant said, “I’ll do it. I’ll do it for real.”
Moreover, the evidence suggests defendant was contemplating
shooting Shaenate throughout their argument. In the time
17
leading up to the shooting, defendant put the gun in his
waistband, took the gun out of his waistband, cocked it, unloaded
it, reloaded it, and fiddled with the safety before putting it back
on the table when things calmed down. There was no evidence,
let alone substantial evidence, to support the theory that the gun
was discharged accidentally.
Even if we were to assume otherwise, any error was
harmless. “The failure to instruct on a lesser included offense in
a noncapital case does not require reversal ‘unless an
examination of the entire record establishes a reasonable
probability that the error affected the outcome.’ [Citation.] ‘Such
posttrial review focuses not on what a reasonable jury could do,
but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.’”
(People v. Thomas, supra, 53 Cal.4th at p. 814, fn. omitted.)
Here, the evidence supporting the jury’s finding of
second degree murder was overwhelming. The only evidence the
shooting was accidental, Aaron’s testimony that defendant
“accidentally shot her in the head,” came from a witness who was
not even looking at defendant at the time of the shooting.
Therefore, “[t]hese circumstances strongly support a conclusion
that the shooting was not accidental,” and there is no reasonable
probability the jury would have reached a different result if the
instruction had been given. (People v. Thomas, supra, 53 Cal.4th
at p. 814.)
18
III. The prosecutor’s explanations of provocation and
the cooling period were not objectionable, and if
they were, defendant was not prejudiced by
counsel’s failure to object
Defendant contends defense counsel was ineffective in
failing to object to the prosecutor’s arguments regarding heat of
passion and past provocative acts during closing argument.
Specifically, defendant argues “the prosecutor erroneously argued
if [defendant] was making conscious decisions, he was not acting
in the heat of passion,” and “the prosecutor misled the jury by
arguing it could not consider past provocative acts if there was a
cooling period between those acts and the act that ultimately led
the defendant to kill.” We disagree.
A. Relevant proceedings
Relevant here, the jury was instructed regarding voluntary
manslaughter, using CALJIC No. 8.40; heat of passion and
provocation, using CALJIC No. 8.42; and cooling period, using
CALJIC No. 8.43.
CALJIC No. 8.42 explained, to reduce murder to
manslaughter, “the provocation must be of the character and
degree as naturally would excite and arouse the passion, and the
assailant must act under the influence of that sudden quarrel or
heat of passion.” The instruction explained the passion must be
of a sort as would be “aroused in the mind of an ordinarily
reasonable person in the same circumstances” and the
“provocation may occur in a short, or over a considerable, period
of time.” The jury was told they must also determine whether
“defendant was in fact provoked” and the provocation must have
been caused by the victim. In short, the jury was instructed to
determine whether “the reason of [defendant] was obscured or
disturbed by passion to such an extent as would cause the
19
ordinarily reasonable person of average disposition to act rashly
and without deliberation and reflection.”
Using CALJIC No. 8.43, the jury was also instructed
defendant must have killed “while [he] was acting under the
direct and immediate influence of the quarrel or heat of passion”
and where “sufficient time has elapsed for angry passion to end
and for reason to control his conduct, it will no longer excuse
express or implied malice.” Ultimately, the jury was to
determine “whether the cooling period has elapsed and reason
has returned” by looking at “the time it would take the average or
ordinarily reasonable person to have cooled the passion, and for
that person’s reason to have returned.”
During closing argument, the prosecutor primarily argued
her view defendant committed first degree premeditated murder.
In explaining provocation, the prosecutor said, “[y]ou can use the
evidence about provocation in two different ways”: to either
reduce the first degree murder to second degree or reduce second
degree murder to voluntary manslaughter. Regarding voluntary
manslaughter, the prosecutor explained first, there must be
“some sort of provocative act … something that triggers that heat
of passion” and “defendant is actually acting under the ‘heat of
passion,’” and, second, “the provocation [is] such that a
reasonable person would act from passion rather than judgment.”
The prosecutor went on to explain heat of passion: “So if a
defendant is making conscious choices, then their judgment is not
obscured because they are able to make decisions. What passion
we are talking about here is a passion that obscures all reason
and judgment, all reasoning and conscious decision-making is
going out the window and that passion in response to a
provocative act has to be such that a reasonable person would
react the same way. Not necessarily that a reasonable person
20
would also kill, because the jury instruction is specific and I want
you to take note of that. It’s that a reasonable person would act
from that passion and not out of any conscious decision-making.”
The prosecutor noted, “It’s canceling out express malice or
implied malice because the person is acting in such a way that
they have no judgment in decision-making ability anymore,” and
that feeling was “sufficient that a reasonable person would be …
unable to control themselves.”
She described it as “passion … versus judgment.” The
passion defendant felt is such that, “Are they acting with
conscious decision-making or are they acting without any
reason[?] They are seeing red, et cetera.” Finally, the prosecutor
emphasized the importance of CALJIC No. 8.42 “because it talks
a lot about what that passion is.”
Next, the prosecutor explained CALJIC No. 8.43 and the
cooling period. She explained, “there’s no specific measure to that
time. It could be 10 seconds. It could be five minutes. It could be
six hours. It could be 10 weeks. It’s just specific to the
evaluation of the evidence in this case.… It just has to be
sufficient time for reason to have returned to the person.”
Further, she noted, “It’s measured by a reasonable person
standard.… It is how much time would a reasonable person need
to cool off from what has happened[?]”
The prosecutor discussed the evidence of the prior incidents
between defendant and Shaenate and noted their relevance in
evaluating whether defendant was provoked, but also argued
that “there’s a big cooling off period between all of them[,] [e]ven
between the incident that occurred on December 26 and the
actual murder on [January] fifth,” and “if there is a break in that
chain, that’s not provocation anymore.” The prosecutor also
argued there was a “break” during the events on evening of
21
January 5, 2023, when “[t]hings calmed down” during the
incident. She reiterated, “for the reasons we’ve talked about as a
matter of law, if you determine that those cooling periods are
sufficient that doesn’t count as the provocative act.”
Finally, the prosecutor reminded the jury, “if you think that
anything about what I present … or … argue is incorrect or
contrary to the jury instructions, you have to follow the
instruction.”
During his closing, defense counsel noted he
“fundamentally disagree[d]” with the People’s “description of the
… law of heat of passion and sudden quarrel.” Pointing to the
People’s burden, counsel argued, “It’s on them to prove that
there’s no way that [defendant] was obscured by passion, by
emotion.”
Discussing provocation and the cooling period, defense
counsel listed the various things Shaenate had done to provoke
defendant in the recent past. Counsel explained the question was
whether a reasonable person would “act rashly and from passion,
rather than from judgment.” Counsel offered, “[l]egally adequate
provocation may occur in a short or over a period of considerable
time,” and argued, Shaenate’s “act[s] of aggression” toward
defendant were the “million straws underneath” the thrown
burrito that eventually broke the camel’s back.
Defense counsel further discussed his disagreement with
the prosecutor, saying, “This is not an unconsciousness defense,”
but agreed with the People’s characterization of heat of passion
as “going red.” Counsel posited, “sometimes when we are in those
intimate relationships we just can’t take it anymore. That’s the
emotion.” He compared the level of emotion and consciousness to
driving while dealing with extreme emotions: “[W]hen that
feeling just overcomes our emotions and, yes, we are driving.…
22
I’m still stopping[,] still picking up my kids. But I’m not
[mentally] here.… My mind is pre-occupied.… That is the
emotion we are talking about. It’s not an unconsciousness. It’s
the emotion that you can act rashly” and “obscures your reason.”
In rebuttal, the prosecutor reemphasized the importance of
CALJIC No. 8.43 and the cooling period. She said, “That is why
the cooling period instruction is so very important because you …
are the ones who decide whether you view that provocation
collectively as one thing—the way [defense counsel] has
described—or whether in applying the cooling period instruction,
there was sufficient cooling off time in between what is going on
prior to the date of the murder and on the date of.”
B. Applicable Law
1. Heat of passion and cooling period
To establish heat of passion and provocation, the evidence
must show “defendant’s reason was (1) actually obscured as a
result of a strong passion; (2) the passion was provoked by the
victim’s conduct; and (3) the provocation was sufficient to cause
an ordinary person of average disposition to act rashly or without
due deliberation and reflection, and from this passion rather than
from due deliberation or reflection.” (People v. Wright (2015) 242
Cal.App.4th 1461, 1481.)
Regarding the cooling period, CALJIC No. 8.43 instructs,
“To reduce a killing upon a sudden quarrel or heat of passion
from murder to voluntary manslaughter, the killing must have
occurred while the slayer was acting under the direct and
immediate influence of the quarrel or heat of passion. Where the
influence of the sudden quarrel or heat of passion has ceased to
obscure the mind of the accused, and sufficient time has elapsed
for angry passion to end and for reason to control his conduct, it
will no longer excuse express or implied malice .… The question,
23
as to whether the cooling period has elapsed and reason has
returned, is not measured by the standard of the accused, but the
duration of the cooling period is the time it would take the
average or ordinarily reasonable person to have cooled the
passion, and for that person’s reason to have returned.”
“‘[T]he key element is not the duration of the source of
provocation but “‘whether or not defendant’s reason was, at the
time of his act, so disturbed or obscured by some passion … to
such an extent as would render ordinary men of average
disposition liable to act rashly or without due deliberation and
reflection, and from this passion rather than from judgment.’”’”
(People v. Wright, supra, 242 Cal.App.4th at p. 1487; see People v.
Wharton (1991) 53 Cal.3d 522 [provocatory conduct could occur
over a span of weeks]; People v. Berry (1976) 18 Cal.3d 509, 516
[when provocation consisted of a “long course,” even 20 hours
could be not long enough to cool]; People v. Borchers (1958) 50
Cal.2d 321, 329 [heat of passion supported where induced by
“long continued provocatory conduct” during a five-month
relationship].)
2. Prosecutorial misconduct
“[I]t is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its prima facie obligation to overcome
reasonable doubt on all elements.” (People v. Marshall (1996) 13
Cal.4th 799, 831; see People v. Bell (1989) 49 Cal.3d 502, 538.)
“To establish such error, bad faith on the prosecutor’s part is not
required.” (People v. Centeno (2014) 60 Cal.4th 659, 666.) “When
attacking the prosecutor’s remarks to the jury, the defendant
must show that, ‘[i]n the context of the whole argument and the
instructions’ [citation], there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an
24
improper or erroneous manner. [Citations.] In conducting this
inquiry, we “do not lightly infer” that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements.’” (Id. at p. 667.)
3. Ineffective assistance of counsel
To prevail on a claim of ineffective assistance of counsel, a
defendant must show that counsel’s performance fell below a
standard of reasonable competence and that prejudice resulted.
(Strickland v. Washington (1984) 466 U.S. 668, 687–688
(Strickland); People v. Anderson (2001) 25 Cal.4th 543, 569
(Anderson).) “[A] mere failure to object to evidence or argument
seldom establishes counsel’s incompetence.” (People v. Ghent
(1987) 43 Cal.3d 739, 772.) Even where a prosecutor’s statements
constitute misconduct, defense counsel may have sound tactical
reasons for not objecting, such as a desire not to highlight the
prosecutor’s comments for the jury. (People v. Padilla (1995) 11
Cal.4th 891, 940 (Padilla), overruled on other grounds in People
v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Lucky (1988) 45
Cal.3d 259, 293; People v. Ghent, supra, at p. 773.) “‘The choice of
when to object is inherently a matter of trial tactics not ordinarily
reviewable on appeal.’” (Padilla, supra, at p. 940.)
C. Analysis
In order to reach defendant’s claim of whether counsel was
ineffective for failing to object to the prosecutor’s arguments, we
must determine if the prosecutor’s statements were
objectionable.9
9 Though defendant does not explicitly say so, by virtue of his
claim of ineffective assistance of counsel for “failing to object,” he
tacitly admits the objection was waived. (People v. Perez (2018) 4
Cal.5th 421, 451 [failure to object and request a curative
25
1. Heat of passion
Defendant contends “[t]he prosecutor essentially conflated
the defense of unconsciousness with heat of passion” and notes
heat of passion does not require defendant to act unconsciously.
This, he argues, “undermined the prosecution’s burden of proof.”
We conclude there was no misconduct on the part of the
prosecutor. Even assuming otherwise, defense counsel was not
deficient in failing to object.
Though counsel referred to “conscious decision-making …
going out the window,” she also discussed “seeing red” and
“passion that obscures all reason and judgment.” While some of
the prosecutor’s statements regarding heat of passion could be
described as imprecise, they were not objectionable and “fall[]
within the prosecutor’s wide latitude to comment on the evidence
during closing argument.” (People v. Peoples (2016) 62 Cal.4th
718, 797 (Peoples).) To the extent her explanations could have
been misunderstood by the jury, the prosecutor repeatedly
reminded the jury of the importance of the jury instructions and
reminded them, “if you think that anything about what I present
… or … argue is incorrect or contrary to the jury instructions, you
have to follow the instruction.” Thus, when viewing the
argument as a whole, alongside the instructions, defendant has
not demonstrated “‘a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous
manner.’” (Centeno, supra, 60 Cal.4th at p. 667.)
Furthermore, defense counsel was not deficient in failing to
object to the prosecutor’s argument regarding heat of passion.
Rather, defense counsel opted to address any imprecision on the
instruction, results in forfeiture of the claim of prosecutorial
misconduct].) We accept defendant’s admission.
26
part of the prosecutor head on. Specifically, counsel clearly and
directly told the jury he “fundamentally disagree[d]” with the
People’s characterization of heat of passion and provocation and
explained his view of the concepts. Defense counsel’s decision not
to object was a reasonable tactical choice; he chose instead to
address the prosecutor’s framing of the issue directly, expressly
telling the jury he disagreed with her characterization. We will
not second-guess that choice. (Padilla, supra, 11 Cal.4th 940.)
2. Cooling period
Turning to defendant’s contention “the prosecutor misled
the jury by arguing it could not consider past provocative acts if
there was a cooling period between those acts and the act that
ultimately led the defendant to kill,” we find no error. First, the
prosecutor discussed CALJIC No. 8.43 with the jury and correctly
explained the cooling period is measured using a reasonable
person standard, has no fixed duration, and is ultimately for the
jury to decide. Next, she argued her view that the intervals
between defendant and Shaenate’s disputes, including the period
during which things calmed down on the night of the shooting,
were sufficient for a reasonable person to have cooled for
purposes of heat of passion. Finally, to illustrate the point, she
offered various time periods spanning from “10 seconds” to “10
weeks.” The prosecutor did not tell the jury it could not consider
the prior incidents; she argued the “cooling period br[oke] that
chain” and “sufficient time ha[d] elapsed for angry passion to
end.” This is a permissible application of the law to the facts, not
a misstatement of it. (See Peoples, supra, 62 Cal.4th at p. 797.)
Assuming, for the sake of argument, counsel was ineffective
for failing to object to the prosecutor’s arguments, we find no
prejudice. The trial court instructed the jury, correctly and at
length, on the intricacies of the law of homicide in general and on
27
the points at issue in particular. “The court’s instructions, not
the prosecution’s argument, are determinative, for ‘We presume
that jurors treat the court’s instructions as a statement of the law
by a judge, and the prosecutor’s comments as words spoken by an
advocate in an attempt to persuade.’” (People v. Mayfield (1993)
5 Cal.4th 142, 179.) Furthermore, the court specifically told
jurors, “You must accept and follow the law as I state it to you,
regardless of whether you agree with it. If anything concerning
the law said by the attorneys in their arguments or at any other
time during the trial conflicts with my instructions on the law,
you must follow my instructions.” It also told them the
“[s]tatements made by the attorneys during the trial are not
evidence.”
The court informed jurors that they would have the written
instructions in the jury room for reference during deliberations,
and to “[c]onsider the instructions as a whole and each in light of
all the others.” The jurors’ extensive marking on the written
instruction during deliberations, coupled with their verdict of
second degree, rather than first degree murder, demonstrates
they took the court’s instructions to heart and carefully weighed
the evidence of heat of passion, provocation, and the cooling
period. Accordingly, based on the evidence elicited at trial, the
arguments of counsel, and the full reading of the jury
instructions, we presume the jury properly understood its charge
and followed the court’s instructions. (People v. Boyette (2002) 29
Cal.4th 381, 436.) Defendant points to nothing in the record that
rebuts this presumption. (See People v. Medina (1995) 11 Cal.4th
694, 760.)
28
IV. Defendant was not prejudiced by counsel’s failure to
object to the court’s hearsay ruling
Defendant contends he was “denied his right to counsel
under the Sixth and Fourteenth Amendments by defense
counsel’s failure to object to the trial court’s ruling that [his]
statement immediately following the shooting was hearsay”
(boldface and capitalization omitted) where it was admissible as
an excited utterance pursuant to Evidence Code section 1240 and
he was prejudiced because it “strongly suggested that the killing
was accidental.” We find no prejudice.
A. Relevant facts
Before trial, the People made an unopposed motion “that
the defense not introduce the defendant’s own statements.”
During his testimony, Aaron stated that immediately following
the shooting, defendant “looked at [him] and said, I’m sorry. It
was an accident. I didn’t know the safety was off.” The People
objected to the statement as hearsay. The court sustained the
objection and struck the “[s]tatement as to what the defendant
said.” There was no objection by defense counsel.
B. Applicable law
As discussed, to prevail on a claim of ineffective assistance
of counsel, a defendant must show that counsel’s performance fell
below a standard of reasonable competence and that prejudice
resulted. (Strickland, supra, 466 U.S. at pp. 687–688; Anderson,
supra, 25 Cal.4th at p. 569.) Prejudice is shown where there is “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” (Strickland, supra, at p. 694; see
Anderson, supra, at p. 569.)
29
C. Analysis
Here, we need not decide if counsel was deficient for failing
to advance the admissibility of defendant’s statement to Aaron
because, even assuming deficiency, defendant has not established
he was prejudiced by the statement’s exclusion. (See Strickland,
supra, 466 U.S. at pp. 687 [“the defendant must show that the
deficient performance prejudiced the defense”], 697 [a court need
not “address both components of the inquiry if the defendant
makes an insufficient showing on one”].)
Defendant contends he was prejudiced because the omitted
statement “strongly suggested that the killing was accidental”
and the “statement would have bolstered Aaron’s testimony on
direct examination that the gun fired ‘when [defendant was]
messing around with her, and he accidentally shot her in the
head.’” Thus, the statement would have “demonstrated that
[defendant] did not have an intent to kill and negated malice.”
We disagree.
First, though the statement would have corroborated
Aaron’s testimony that defendant was “messing around with her”
and in his opinion “accidentally shot her in the head,” the
statement directly contradicted defendant’s heat of passion
defense. Heat of passion concedes an intentional killing but
denies malice. Introducing a statement from defendant that the
killing was accidental, with no other evidence to support that
theory, would have left defense counsel in the position of needing
to either abandon the primary defense or ask the jury to
simultaneously consider and credit two irreconcilable accounts of
the same event. There is no reasonable probability this would
have produced a more favorable result; indeed, it is more likely to
have damaged the defense overall.
30
Second, even assuming the statement had been admitted
under Evidence Code section 1240, the jury’s probable
assessment of it must be considered. (See Strickland, supra, 466
U.S. at pp. 695–696 [the court must assess the probable impact of
the evidence on the jury’s deliberations in light of the entire
record].) The statement came through the testimony of a 16-
year-old witness who regarded the much older defendant as a
“brother.” The statement was never disclosed to the police prior
to trial and would have been subject to substantial impeachment.
Aaron’s obvious loyalty to defendant would have undermined the
statement’s credibility, and the late disclosure would have invited
the jury to view the statement as a recent fabrication to help his
“brother.”
Third, there was no substantial evidence to support a
theory the shooting was an accident or Aaron’s testimony that
the two were “on the bed[, a]nd next thing I know she keeps on
talking mess to [defendant], and sooner or later the gun goes off
when he’s messing around with her, and he accidentally shot her
in the head.” Instead, the evidence established (1) the shooting
took place while defendant stood some feet away from Shaenate,
not while the two were involved in a tussle; (2) defendant told
Aaron to leave because he was going to kill or “pop” Shaenate; (3)
defendant picked the gun up and said he would “do it for real”; (4)
defendant shot Shaenate after she threw her burrito at him,
which also established the shot was fired from some distance
away; and (5) defendant fled from the hotel room following the
shooting, rather than calling the police to report an accidental
shooting. Thus, the only evidence supporting a theory of
accidental shooting would have been Aaron’s lay opinion that
defendant “accidentally shot her” and the excluded statement
31
itself. The evidence of provocation was far more substantial and
a much stronger foundation upon which to build a defense.
Fourth, and finally, the verdict returned by the jury further
demonstrates a lack of prejudice. If an accident defense had been
advanced and successful, defendant would have been convicted of
involuntary manslaughter. The jury convicted defendant of
second degree murder, having rejected defendant’s heat of
passion defense. The inferential leap from “defendant’s accident
statement comes in” to “the jury returns a verdict of involuntary
manslaughter” requires the jury to have credited a theory
supported by a single statement from a biased witness with no
other evidentiary foundation and, in fact, substantial evidence to
the contrary. This leap is speculative at best.
Each of these reasons independently supports a finding of
no prejudice. When considering them together, it is not
reasonably probable that but for the exclusion of the statement,
the result would have been different. (Strickland, supra, 44 U.S.
at p. 694.)
V. Trial court did not abuse its discretion in declining
to dismiss the firearm enhancement under Senate
Bill 81
Defendant alleges the trial court erred in failing to strike
his firearm enhancement pursuant to Senate Bill 81. We
disagree.
A. Relevant facts
Ahead of sentencing, defense counsel moved to dismiss the
section 12022.5, subdivision (a) firearm enhancement pursuant to
section 1385, subdivision (c) as amended by Senate Bill No. 81
(2021-2022 Reg. Sess). Counsel asserted two factors in
mitigation: (1) defendant suffered from posttraumatic stress
disorder (PTSD) and the offense was connected to the disorder
32
and (2) the offense was connected to his prior victimization by
Shaenate. He averred dismissal would not endanger public
safety because he would receive a sentence of 15 years to life and
he would be over 40 years old when he was parole eligible.
In support of defendant’s motion, counsel attached a
behavioral health assessment (BHA), wherein defendant was
diagnosed with “engrained or settled PTSD”; substance abuse
disorders for alcohol, opiates, cannabis, and amphetamines; and
“depressive disorder, not otherwise specified”; as well as an
incident report from December 26, 2022, where defendant
(referred to as “Jaheem Brown”) and Shaenate had been involved
in a domestic violence incident, with Shaenate as the “suspect”
and defendant as the victim.
The People filed a sentencing brief wherein they asked the
court to sentence defendant to the maximum of 25 years to life—
15 years to life for count 1 and 10 years for the firearm
enhancement—because defendant’s criminal history involves
numerous convictions of increasing seriousness as defined by rule
4.421(b)(2). The People noted, if opting for the middle term, the
court could also consider defendant’s certified records of
conviction and “other factors in aggravation” pursuant to rules
4.420(c) and (d). Finally, the People argued the low term was not
required pursuant to rule 4.420(e) because defendant was not a
youthful offender, and “[t]here [we]re no mitigating factors
present in this case that would require the imposition of the low
term, because there [wa]s insufficient nexus between Defendant’s
prior experiences and the instant offense.”
The People argued against dismissal of the enhancement
because, while defendant advanced the presence of two
mitigating factors, the People argued there was no evidence
presented providing a clear nexus between the instant offense
33
and defendant’s prior victimization or PTSD. Finally, the People
argued the jury rejected defendant’s theory that the murder of
Shaenate was connected to any “on going abuse he suffered at
[her] hands” and “urge[d] the court to make the same finding.”
On December 3, 2024, the court held a trial on the three
aggravating factors alleged in the information: (1) defendant was
armed at the time of the offense as described in rule 4.421(a)(2);
(2) the offense involved great violence within the meaning of rule
4.421(a)(1);10 and (3) defendant has suffered numerous
convictions of increasing seriousness within the meaning of
4.421(b)(2).
Ultimately, the court found true beyond a reasonable doubt
that defendant suffered numerous convictions as an adult, which
were of increasing seriousness. The court found use of the armed
aggravating factor pursuant to rule 4.421(a)(2) for purposes of
sentencing on the firearm allegation to be inappropriate and, as a
result, it was withdrawn by the People.
At the sentencing hearing, the court considered the parties’
arguments on the motion to dismiss the firearm enhancement,
listened to victim impact statements, and sentenced defendant.
Specifically, Shaenate’s mother spoke about the loss of her
daughter, and the prosecutor read a statement written by
Shaenate’s aunt. Defense counsel reiterated the request to
dismiss the gun enhancement or, in the alternative, impose the
low term based on the mitigating factors.
The court declined to dismiss the enhancement under
section 1385 after “balancing [defendant’s] record, which ha[s]
numerous convictions of increasing seriousness” and
“culminating in this offense” with “the facts and circumstances
10 This factor was withdrawn by the People.
34
surrounding this [offense] and the evidence of childhood trauma
suffered by defendant.” The court imposed the midterm for the
enhancement, finding “on balance” it “is the appropriate
sentence.” As a result, defendant was sentenced to 15 years to
life on count 1, plus four years for the firearm enhancement.
B. Standard of review and applicable law
We review a trial court’s decision whether to dismiss or
strike an enhancement under section 1385 for abuse of discretion.
(Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490.) “A trial
court may abuse its discretion where ‘its decision is so irrational
or arbitrary that no reasonable person could agree with it,’ ‘where
the trial court was not “aware of its discretion” to dismiss a
sentencing allegation under section 1385, or ‘where the court
considered impermissible factors in declining to dismiss.’” (Ibid.)
Effective January 1, 2022, Senate Bill No. 81 (2021–2022
Reg. Sess.) amended section 1385 to add subdivision (c). (People
v. Coleman (2024) 98 Cal.App.5th 709, 723.) As amended
“[s]ection 1385, subdivision (c)(1) … provides that
‘[n]otwithstanding any other law, the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except
if dismissal of that enhancement is prohibited by any initiative
statute.’ … Section 1385, subdivision (c)(2) provides in pertinent
part, ‘In exercising its discretion under this subdivision, the court
shall consider and afford great weight to evidence offered by the
defendant to prove that any of the mitigating circumstances in
subparagraphs (A) to (I) are present.[11] Proof of the presence of
11 As noted, defendant asserts the presence of two applicable
mitigating factors: (1) “offense is connected to mental illness”
(§ 1385, subd. (c)(2)(D)) and (2) “offense is connected to prior
victimization” (§ 1385, subd. (c)(2)(E)).
35
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.’”
(People v. Walker (2024) 16 Cal.5th 1024, 1032, italics omitted
(Walker).)
Thus, “‘if the trial court finds that dismissal of an
enhancement would endanger public safety, then it is hard to see
how dismissal would further the interests of justice,’
notwithstanding the applicability of any mitigating factors
identified in [section 1385,] subdivision (c)(2).” (Walker, supra, 16
Cal.5th at p. 1033, italics added.) If, on the other hand, “the
court does not conclude that dismissal would endanger public
safety, then mitigating circumstances strongly favor dismissing
the enhancement. But ultimately, the court must determine
whether dismissal is in furtherance of justice.” (Id. at p. 1036.)
Simply put, “absent a danger to public safety, the presence of an
enumerated mitigating circumstance will generally result in the
dismissal of an enhancement unless the sentencing court finds
substantial, [relevant, and] credible evidence of countervailing
[aggravating] factors that ‘may nonetheless neutralize even the
great weight of the mitigating circumstance, such that dismissal
of the enhancement is not in furtherance of justice.’” (Ibid.) In
exercising its discretion under section 1385, the trial court may
consider aggravating factors such as those outlined in rule 4.421
or rule 4.410. (See Walker, supra, 16 Cal.5th at p. 1033.)
C. Analysis
As a threshold matter, in making its ruling, the court did
not explicitly find dismissal of the enhancement would endanger
public safety. Thus, we analyze the court’s ruling with attention
to whether the court found the countervailing aggravating factors
36
outweighed the great weight given to the mitigating factors.
(Walker, supra, 16 Cal.5th at p. 1036.) We find it did.
Importantly, while the BHA demonstrates defendant was
diagnosed with PTSD and describes an abusive relationship with
Shaenate, the BHA did not establish a nexus or connection
between those circumstances and the murder of Shaenate. This
weighs against a finding that these circumstances were
mitigating for purposes of dismissing the enhancement under
section 1385, subdivision (c). Moreover, we note, during trial, the
defense offered testimony regarding a December 2022 arrest of
Shaenate for a domestic violence incident with defendant.
However, the parties also stipulated defendant suffered a
conviction for domestic violence on January 11, 2023, and, while
the record does not disclose who the victim in that case was, the
evidence at trial established Shaenate was defendant’s only
girlfriend around that time.12
In making its ruling, the court noted its discretion related
to sentencing on the gun enhancement. The court explained it
balanced defendant’s evidence of “childhood trauma” against his
“numerous convictions of increasing seriousness” in deciding that
dismissing the enhancement would not further justice.
Furthermore, in discussing defendant’s extensive and escalating
record, the court noted his record “culminat[ed] in this offense,”
the murder of Shaenate. While the court did not expressly
mention taking account of defendant’s abusive relationship with
Shaenate, we understand the court to have included that in its
assessment of defendant’s “trauma” and, furthermore, given the
12 As mentioned, the police report from the December 26,
2022 incident states Shaenate and defendant had been in a
relationship for a year and a half.
37
evidence of mutual volatility, including defendant’s own domestic
violence conviction shortly after the murder, the court was
entitled to discount this factor in its balancing.
“[W]here a statement of reasons is not required and the
record is silent, a reviewing court will presume the trial court had
a proper basis for a particular finding or order.” (People v.
Stowell (2003) 31 Cal.4th 1107, 1114.) The court was not required
to state any specific words beyond what it said at the sentencing
hearing. (See People v. Ortiz (2023) 87 Cal.App.5th 1087, 1096
[trial court’s initial statement and “detailed explanation of its
reasoning” at the sentencing hearing demonstrated it “engaged in
a holistic balancing with special emphasis on the enumerated
mitigating factors”].) Here, the court balanced evidence of
defendant’s PTSD and relationship trauma against his extensive
and escalating record and concluded dismissal would not further
justice. That is precisely the balancing contemplated in Walker,
and defendant has not demonstrated it was irrational or
arbitrary. (See People v. Carmony (2004) 33 Cal.4th 367, 376–
377 [party attacking the judgment must clearly show abuse of
discretion].) We find no abuse of discretion.
VI. Cumulative error
Defendant contends the cumulative effect of the errors
alleged was prejudicial and violated his due process. Respondent
avers there are “no errors or prejudicial errors to accumulate.”
(Boldface and capitalization omitted.) We agree.
“‘Under the cumulative error doctrine, the reviewing court
must “review each allegation and assess the cumulative effect of
any errors to see if it is reasonably probable the jury would have
reached a result more favorable to defendant in their absence.”
[Citation.] When the cumulative effect of errors deprives the
defendant of a fair trial and due process, reversal is required.’”
38
(People v. Yang (2021) 67 Cal.App.5th 1, 52.) “The cumulative
prejudice doctrine is based on an examination of the ‘entire
record.’” (Id. at p. 53.)
Here, “[w]e have rejected nearly all of defendant’s claims of
error. Where we [assumed] error, we have determined defendant
was not prejudiced. Whether such claims are considered
individually or together, we find no prejudicial error ….” (People
v. Streeter (2012) 54 Cal.4th 205, 268.)
DISPOSITION
The judgment is affirmed.
CHAVEZ, Acting P. J.
We concur:
RICHARDSON, J.
GOORVITCH, J.
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