Filed 11/9/26 P. v. Waters CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052466
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2215862)
v.
MARK HENRY WATERS,
Defendant and Appellant.
Mark Henry Waters confronted E.B. at gunpoint, mistakenly believing that E.B.
was an armed thief crossing the street to burglarize Waters’s home. Waters shot E.B. in
the leg, although Waters would testify that the gun discharged accidentally, and the
shooting was captured by a neighbor’s surveillance camera. Convicted by jury of assault
with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), with enhancements for
personal firearm use and infliction of great bodily injury, Waters was sentenced to serve
15 years in prison.1
On appeal, Waters argues that the trial court prejudicially erred by admitting
evidence of an uncharged prior assault, the prosecutor committed misconduct by arguing
that the crime was racially motivated, and the trial court erred by instructing the jury that
it could draw adverse inferences from Waters’s failure to explain or deny incriminating
evidence (CALCRIM No. 361). Waters also argues that the trial court erred at sentencing
1
Unspecified statutory references are to the Penal Code.
by failing to consider whether striking an enhancement would result in a future risk of
danger to public safety and by imposing the aggravated term. Finding no prejudicial trial
error and no sentencing error, we will affirm the judgment.
I. BACKGROUND
A. The Operative Information
The Santa Clara County District Attorney charged Waters by information with a
count of assault with a semiautomatic firearm (§ 245, subd. (b)). As to this single count
of assault, it was alleged that Waters personally used a firearm (§ 12022.5, subd. (a)) and
inflicted great bodily injury (§ 12022.7, subd. (a)). The information also alleged several
aggravating factors for sentencing purposes.
B. The Trial
1. The Prosecution’s Case
Waters’s house is across the street from an Airbnb rental home. Before E.B.’s
shooting, Waters had experienced several theft-related incidents at his home. In June
2021, someone stole a catalytic converter from one of his cars. And on the evening of
September 30, 2022—two days before E.B. was shot—Waters’s truck was burglarized
while parked outside his home. Waters told San Jose Police Department Officer Jorge
Eslava that a toolbox set and garage door openers had been taken from his truck, and
Waters expressed concern about wanting to disable his garage door, which the
perpetrators had opened. At the time, Waters told Eslava that he would have “wasted”
the burglars if they had gone inside his house. Waters also said he wanted to drive
around to look for the suspects.
On October 2, 2022, E.B. was renting a room at the Airbnb across the street from
Waters’s house in San Jose. That evening, E.B. decided to go to a nearby grocery store;
he wore a sweatshirt with the hood up and a bonnet to cover his hair, along with his
headphones. His headphones were white and silver, and his phone was gold. It was dark
at the time, though there were streetlights. E.B. diagonally cut through the street to get to
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the grocery store, and he saw Waters emerge from the “extreme darkness” when he set
foot on the sidewalk across the street. E.B. did not believe he was holding anything in his
hands at the time.
E.B. saw that Waters was holding a gun. Waters lifted the weapon when he got
closer to E.B. E.B.’s headphones had a “transparency” setting permitting him to hear
ambient sounds, but he did not recall hearing Waters say anything to him. E.B. thought
that Waters was going to rob him based on his demeanor and his clothing, as Waters was
wearing a hoodie. E.B. ran back towards the Airbnb and heard Waters say, “ ‘You think
you can run?’ ” E.B. heard a gunshot and immediately felt pain in his leg, falling to the
ground. Waters approached E.B. with the gun still pointed at him. E.B. thought Waters
had a “slight smirk” on his face.
E.B. screamed that he was staying at the nearby Airbnb, that he was walking to the
store, and that he had nothing on him. Waters appeared to toss something while walking
toward his house then returned to where E.B. was sitting on the ground. Waters said
nothing to E.B. but called the police. Waters then tossed E.B.’s phone towards him, and
E.B. called the police himself. During E.B.’s 911 call, Waters is heard in the background
saying that he shot E.B. because he thought E.B. was breaking into his house. E.B. had
tied his jacket and shirt around his wound. Eventually, Waters threw E.B. his jacket as
well.
Officer Eslava responded to the shooting. Waters told Eslava that he believed that
the thieves who had been at his house several days ago had returned. Waters showed
Eslava a video clip from his home’s surveillance cameras taken that evening, which
recorded someone in a black mask looking into cars parked on Waters’s driveway.
Shortly after the masked man appears on the surveillance video, Waters is seen running
onto the driveway, holding a gun. The clip from Waters’s home surveillance video was
taken around 10:24 p.m., and the 911 call about the shooting was logged at 11:08 p.m.,
about 44 minutes later.
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Although Waters first told police that he fired his weapon from his porch, a
neighbor’s surveillance video captured the shooting and contradicted this account. The
surveillance video shows E.B. walking down the driveway of the vacation rental and
crossing the street. As E.B. nears the sidewalk, Waters appears near the front of his
house and quickly enters his yard toward the sidewalk, his arm extended before him. As
E.B. steps onto the sidewalk, he turns away from Waters and starts to run. E.B. takes a
few steps along the sidewalk, his back to Waters, when a gunshot is heard, and E.B.
stumbles, soon falling into the street. No conversation is audible between E.B. and
Waters, but the gunshot is.
An expert in forensic video analysis, created an enhanced video from the
neighbor’s surveillance video. The expert testified that the blurring in the surveillance
video was consistent with video compression and that the absence of discernible sound
other than the gunshot was consistent with audio compression and the lack of a high
quality microphone. He also opined that the surveillance video provided by Waters’s
neighbor had been brightened.
A forensic firearm expert testified that a Glock firearm like Waters’s has both a
firing pin safety—to prevent the gun from firing unless the trigger is fully pulled back—
and a trigger safety that prevents the trigger from being pulled unless the trigger safety is
simultaneously depressed. The average force needed to pull the trigger of this type of
Glock is around 6.3 pounds. Test-firing Waters’s Glock revealed nothing abnormal about
its trigger weight or trigger travel distance.
2. The Defense
Testifying on his own behalf, Waters denied intentionally shooting E.B. or
intentionally pulling the trigger, characterizing the shooting as accidental. Waters
purchased his Glock around 1992 or 1994 to use for self-defense when he left home to
fish or camp. He visited a shooting range about 10 times a year and was familiar with
firearm safety protocols. Waters felt ashamed about what happened to E.B.—Waters
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considered himself a “gun expert,” but he “screwed up and pulled the trigger
accidentally” that night.
The theft of his garage door opener two days before the shooting had concerned
Waters, who feared the thieves would use it to enter his house. One of the officers who
responded to the truck burglary led Waters to believe that the perpetrators might be in a
gang. After the burglary, Waters adjusted the security camera in front of the house to
have a better focus on the street. He also kept his Glock and a second handgun, both
loaded, on his bedside table.
At around 10:24 the night of October 2, Waters was alerted by his cell phone that
someone was in his driveway. Watching the surveillance video in real time, Waters saw
a man in the driveway and thought the man might have a gun. Waters grabbed his closest
gun and ran out to scare off the would-be thief. He believed that there may have been
more than one person because the earlier truck burglary had involved multiple suspects.
Seeing no one outside, Waters went back inside, picked up his Glock, racked a bullet in
its chamber, and went outside again. Again seeing nobody in the street, he sat on his
porch and waited.
About 44 minutes later, Waters saw a person he later learned was E.B. “come out
from the bushes” near a house he knew to be an Airbnb across the street. Believing E.B.
was the person seen earlier on his surveillance video, Waters surmised that E.B. had been
hiding until he thought Waters was gone. E.B. was halfway across the street walking
towards Waters’s house when Waters shouted, “ ‘Where the fuck do you think you’re
going?’ ” In the dark, Waters thought E.B. was wearing what looked like a “bank
robber’s mask.” When E.B. did not stop moving, Waters shouted at E.B. again, asking if
E.B. was thinking of robbing him. When E.B. stepped onto the sidewalk, Waters thought
he saw that E.B. had a gun. Waters said something to E.B. about him having a gun, and
E.B. “darted.” Waters was about to say “stop” or “drop it,” when his own gun went off.
Not having intended to fire, Waters was shocked by the gunshot.
5
While E.B. was sitting on the ground, Waters approached him, saying “so you
think you can rob me,” and “you think you’re gonna shoot me.” Waters did not
deliberately point the gun at E.B. again but “just held [the gun] out in front of [him].”
Nearing E.B., Waters saw a pair of headphones and a phone on the ground that made
Waters realize that E.B. had no gun. Waters still thought E.B. might be one of the thieves
from earlier, and E.B. said he was “sorry” and was “just staying in the Airbnb across the
street.” Waters called for an ambulance and then knelt to help E.B.
The 911 operator asked Waters if he knew where the shooter was, and Waters
admitted he was the shooter. Waters explained to the operator that someone had tried to
break into his house, that he thought E.B. was the perpetrator, and that E.B. started to run
after Waters told him to stop. Waters did not say the gunfire was accidental.
A retired police officer testified as a firearms expert. According to the firearms
expert, Glocks do not have an “external safety.” The only external safety mechanism is
the trigger safety. And with the trigger safety, if a finger or anything else inadvertently
gets onto the trigger and pulls the trigger with sufficient pressure, the safety is
automatically overcome.
3. The Uncharged Act
In limine, the prosecution had argued that if Waters claimed self-defense, mistake,
or a lack of intent, the trial court should admit evidence of Waters’s assault on a man
(S.Q.) at a 2012 festival in Santa Clara. On the second day of Waters’s testimony, when
defense counsel renewed the objection to admission of the uncharged act, the trial court
then ruled the evidence admissible, finding the probative value of the evidence
outweighed the prejudicial effect.
So on direct examination, Waters testified about the incident at the festival.
Waters said the man he struck, S.Q., had accused Waters of being in the “KKK.” Even
though Waters started to walk away, S.Q. followed, challenging Waters to hit him.
Waters backed away, but S.Q. persisted and, with his fists raised, again challenged
6
Waters to hit him. Waters struck him in the face, feeling “threatened.” An officer
restrained him and took him away in a patrol car. But Waters was never charged with a
crime in connection with this incident.
In rebuttal, the prosecutor presented testimony from eyewitnesses to the incident.
Retired police officer Tina Boales recalled that Waters made racially derogatory
comments about people from the Middle East and people of color, in an argument with
men staffing a booth for the Islamic Circle of North America. Waters said something
like, “[W]hy do you bomb us” and “[Y]ou’re nothing but terrorists.” S.Q. testified that
Waters had approached and started arguing with him, calling him a terrorist and telling
him to “go back to where you came from.” When S.Q. told Waters it would be as
ridiculous to assume he was a terrorist as to assume that Waters was a member of the
KKK, Waters threatened to punch him. When S.Q. said, “[G]o ahead,” Waters punched
him across the table.
In surrebuttal, the defense called two officers who testified that Boales had told
them at least one member of the Islamic Circle of North America booth was being
confrontational with passersby. Boales told the officers that one of the booth members
confronted Waters in the walkway and started to recite verses from the Koran and say
that Mohamed was better than any god, which seemed to spark a heated argument.
Boales also told the officers that Waters then went to confront another man in the booth
and that one of the men challenged Waters to hit him.
C. The Verdict and Sentencing
In March 2024, the jury found Waters guilty of assault with a semiautomatic
firearm, further finding true the enhancements for firearm use and the personal infliction
of great bodily injury. That same day, Waters waived his right to a jury trial on the
aggravating factors. After a court trial on the aggravating factors, the trial court found
two aggravating factors true: the crime involved great violence or other acts disclosing a
7
high degree of cruelty, viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1)),
and the victim was particularly vulnerable (id., rule 4.421(a)(3)).
At sentencing in July 2024, the trial court imposed the upper term of nine years for
the assault. The trial court declined to dismiss any of the enhancements under
section 1385. The trial court imposed an additional term of three years for the firearm
enhancement and another three years for the great bodily injury enhancement. In total,
Waters was sentenced to a term of 15 years. Waters timely appealed.
II. DISCUSSION
A. Admission of the Uncharged Act
Waters argues that the trial court abused its discretion by admitting evidence of the
2012 incident at the Santa Clara County festival under Evidence Code section 1101,
subdivision (b), and, assuming the evidence was relevant, its probative value was
substantially outweighed by its prejudicial impact under Evidence Code section 352. We
agree that the evidence was improperly admitted but find the admission of the evidence
harmless based on the strength of the prosecution’s case.
1. Legal Principles
Under Evidence Code section 1101, subdivision (a), except as provided in certain
specified circumstances, “evidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” But subdivision (b) of Evidence Code section 1101
specifies that “[n]othing in this section prohibits the admission of evidence that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident ...) other than his or her disposition to commit such an act.” The degree of
similarity of criminal acts is a key factor in the admission of other crimes evidence—
“ ‘ “ ‘there exists a continuum concerning the degree of similarity required for
8
cross-admissibility, depending upon the purpose for which introduction of the evidence is
sought ….’ ” ’ ” (People v. Scully (2021) 11 Cal.5th 542, 586.)
The least degree of similarity between the uncharged act and the instant offense is
required for an uncharged act to be admissible to prove intent or an absence of mistake.
(People v. Chhoun (2021) 11 Cal.5th 1, 25 (Chhoun); People v. Phillips (2022)
75 Cal.App.5th 643, 672; People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) “ ‘[T]he
uncharged misconduct must be sufficiently similar to support the inference that the
defendant “ ‘probably harbor[ed] the same intent in each instance.’ ” ’ ” (Chhoun, at
p. 25.) Likewise, “to be admissible to negate a defense of accident or mistake, the
uncharged misconduct must be similar to the charged conduct to negate a claim of
accident or mistake.” (People v. Burnett (2003) 110 Cal.App.4th 868, 881 (Burnett).)
But even if other crimes evidence is otherwise admissible under Evidence Code
section 1101, subdivision (b), the evidence is subject to exclusion under Evidence Code
section 352 if its probative value is “substantially outweighed by the probability that its
admission [would] ... create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352; Chhoun, supra, 11 Cal.5th at
pp. 26, 33.) “[E]vidence of other crimes is ‘inherently prejudicial.’ ” (People v. Foster
(2010) 50 Cal.4th 1301, 1331 (Foster).) So uncharged offenses “ ‘are admissible only if
they have substantial probative value.’ ” (Ibid.)
We review the trial court’s admission of evidence under Evidence Code sections
1101 and 352 for an abuse of discretion. (Chhoun, supra, 11 Cal.5th at p. 26.) Error is
shown only if “ ‘ “ ‘the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (Ibid.)
2. Evidence Code section 1101, subdivision (b)
The prosecutor proffered evidence of the uncharged act as probative as to Waters’s
intent or absence of mistake in shooting E.B. But to be admissible to prove intent or
absence of mistake, the uncharged offense must be sufficiently similar to the charged
9
offense that the jury can infer either that Waters likely had the same intent for both or that
the charged offense was not an accident or mistake. (Chhoun, supra, 11 Cal.5th at p. 25;
Burnett, supra, 110 Cal.App.4th at p. 881.) And here, the uncharged offense lacks
sufficient similarity to support such inferences.
In the Santa Clara festival incident, witnesses reported that Waters struck S.Q.
after engaging in a heated exchange with him. There were discrepancies between
Waters’s account and the witnesses’ accounts about who instigated the arguments, but it
appears that Waters may have used derogatory language toward S.Q. and that a different
volunteer who was manning the booth may have been confrontational to festivalgoers in
general. Indeed, Boales testified in her conditional examination that she thought that
some of the actions taken by those at the booth might provoke someone. And ultimately,
Waters punched S.Q.—no weapons were involved in the incident. The incident also
happened during the late afternoon hours, in a public space.
In contrast, the circumstances of the instant offense differ in that it was undisputed
that Waters had been the victim of a recent theft and, on the night of the shooting, had
seen a masked man looking into his cars in his driveway. There was no evidence of any
prolonged exchange between E.B. and Waters. Nor is there evidence that Waters used
any racial epithets or derogatory language toward E.B. And E.B.’s shooting took place in
the evening, when visibility was poor.2 To the extent that one might reasonably infer
from the 2012 incident that Waters was racist and prone to instigate violence against
people of color, this would be precisely the propensity evidence prohibited by Evidence
Code section 1101, subdivision (a).
To be sure, there were bare similarities between the two assaults—both victims
were people of color and Waters claimed to have acted in self-defense both times. But
2
At trial, E.B. identified himself as half Native American, and it is not apparent
that his race or ethnicity would have been discernible in the dark.
10
the self-defense claims differ markedly in their context: The 2012 incident followed a
heated argument or exchange, and the 2022 incident involved Waters’s mistaking E.B.
for a thief. And given the dissimilarities between the two events, we strain to find any
logical inferences from which a trier of fact could infer that Waters had the same intent in
both cases. (Chhoun, supra, 11 Cal.5th at p. 25; see People v. Dryden (2021)
60 Cal.App.5th 1007, 1020–1021 (Dryden) [abuse of discretion to permit admission of
prior uncharged assault that was similar “only in that defendant committed an assault and
initially claimed self-defense”]; but see People v. Jones (2011) 51 Cal.4th 346, 371 [even
though robberies were not “particularly similar” … “they contained one crucial point of
similarity—the intent to steal from victims whom defendant selected”].)
People v. Spector (2011) 194 Cal.App.4th 1335, upon which the Attorney General
relies, is distinguishable. In Spector, the defendant claimed that the victim committed
suicide or shot herself accidentally with a gun. (Id. at p. 1342.) On appeal, he argued that
the trial court erroneously admitted testimony from five women who testified that over a
20-year period, they had been the victims of armed assaults by the defendant. (Ibid.)
Rejecting this argument, the Court of Appeal in part found the other crimes evidence
admissible under the doctrine of chances—“the other crimes evidence consisted of seven
separate incidents in which [the defendant] committed armed assaults against women in
very specific circumstances”; thus, “[t]o the extent the circumstances of [the victim’s]
death were similar to those prior armed assaults, the latter evidence, without any
improper reliance on [the defendant’s] bad character or propensities, tended to prove the
objective improbability that [the victim] had either committed suicide or killed herself
accidentally.” (Id. at p. 1380.) But this case is unlike Spector—there was no evidence
that Waters, for example, was aggressive towards those of racial or religious minorities
over a period of years aside from this discrete incident from 10 years earlier. There is
therefore no occasion to apply the doctrine of chances in this case—evidence of one
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decade-old assault does not tend to show that it was unlikely that Waters’s actions were
intentional and not accidental.
Likewise, the Attorney General’s reliance on Burnett, supra, 110 Cal.App.4th 868,
is similarly unavailing. In Burnett, when the defendant suggested in his trial for animal
cruelty that he had injured the dog only accidentally, the trial court tentatively ruled
admissible evidence that the defendant had once beaten a stray dog. (Id. at pp. 871, 879,
881.) But unlike Burnett, where both the charged crime and the prior act involved animal
cruelty, this case does not involve a prior incident from which one could infer the same
requisite intent. Burnett is therefore unhelpful to the Attorney General’s position that
here, the uncharged 2012 offense was similar enough to warrant admission.
For these reasons, we find that the trial court abused its discretion when admitting
the evidence under Evidence Code section 1101, subdivision (b). (See Chhoun, supra,
11 Cal.5th at p. 26.)
3. Evidence Code section 352
Even if we were to find the uncharged act relevant and admissible under Evidence
Code section 1101, subdivision (b), the probative value of the evidence is substantially
outweighed by its prejudicial impact under Evidence Code section 352. The trial court
therefore abused its discretion in admitting it under Evidence Code section 352, as
evidence of other crimes must be substantially probative to be admissible. (Foster,
supra, 50 Cal.4th at p. 1331.)
First, the probative value of the uncharged act was minimal, given the lack of
similarities between the uncharged offense and the charged offense. “Even though the
lowest degree of similarity is required to show intent, the more substantive similarities
there are from which one can infer that defendant probably harbored the same intent in
each instance, the higher the probative value.” (People v. Winkler (2020) 56 Cal.App.5th
1102, 1155.) And the remoteness of the prior offense—as it occurred 10 years before
E.B.’s shooting—further diminished whatever probative value it had. “[T]he strength of
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an inference from prior act evidence dissipates over time.” (People v. Williams (2018)
23 Cal.App.5th 396, 422.)
Second, the evidence was highly prejudicial. “ ‘Evidence is prejudicial within the
meaning of Evidence Code section 352 if it “ ‘uniquely tends to evoke an emotional bias
against a party as an individual’ ” [citation] or if it would cause the jury to
“ ‘ “prejudg[e]” a person or cause on the basis of extraneous factors.’ ” ’ ” (Foster,
supra, 50 Cal.4th at p. 1331.) We recognize that the 2012 incident was less violent than
the assault here—the festival incident involved a single punch, whereas the instant
offense involved Waters’s shooting an unarmed man. (See Foster, supra, 50 Cal.4th
1301 [prior crimes were less inflammatory and violent].) And here, the jury was properly
instructed not to consider the uncharged crime as evidence of Waters’s propensity to
commit bad acts, minimizing the potential for misuse of the evidence. (Id. at p. 1332.)
But the circumstances of the 2012 incident were nonetheless highly prejudicial to
Waters. Evidence of other uncharged crimes is already inherently prejudicial, as
uncharged acts “ ‘produces an “over-strong tendency to believe the defendant guilty of
the charge merely because he is a likely person to do such acts.” ’ ” (Foster, supra,
50 Cal.4th at p. 1331; Ewoldt, supra, 7 Cal.4th at p. 404.) Compounding the prejudice
here, the incident at the festival suggested that Waters may have harbored either racial
animus or implicit bias against people of color. Introduction of the 2012 incident resulted
in multiple witnesses—including Boales and S.Q.—attributing racist comments to
Waters. S.Q. testified that Waters told the men at the booth to “ ‘go back to where you
came from’ ” and that they were “ ‘terrorists.’ ” Meanwhile, Boales testified that Waters
made multiple racially derogatory statements about Middle Eastern people and people of
color, which she found offensive—and like S.Q., she recalled that Waters said that the
men at the booth were “ ‘nothing but terrorists.’ ” There was a high risk that the
suggestive nature of Waters’s comments may have “inflame[d] the emotions of the jury,
motivating them to use the information, not to logically evaluate the point upon which it
13
is relevant, but to reward or punish one side because of the jurors’ emotional reaction” to
Waters’s comments. (People v. Doolin (2009) 45 Cal.4th 390, 439.)3
The prejudicial impact of the evidence was further increased because Waters was
never charged with any crimes stemming from the 2012 incident. This “increased the
danger that the jury might have been inclined to punish [Waters] for the uncharged
offenses, regardless [of] whether it considered him guilty of the charged offenses, and
increased the likelihood of ‘confusing the issues’ [citation], because the jury had to
determine whether the uncharged offenses had occurred.” (Ewoldt, supra, 7 Cal.4th a
p. 405.)
In fact, the prosecutor himself seemingly urged the jury to use the prior act
evidence as propensity evidence. During closing argument, the prosecutor argued that
the 2012 incident was evidence of either Waters’s intent or absence of mistake. But then
the prosecutor went on to argue that in both the 2012 incident and E.B.’s shooting,
Waters “immediately assumes there’s something criminal about the person”—that “ ‘all
Muslims are terrorists’ ” in the 2012 incident and that E.B. was a burglar. The prosecutor
also specifically argued that the jury could use the 2012 incident as evidence of “racial
animus,” suggesting that Waters was either hostile towards or had an implicit bias against
people of color. The prosecutor argued, “[m]aybe, if instead of [E.B.] crossing the street
3
To be sure, a defendant’s racist beliefs may in some cases be admissible
evidence despite its prejudicial impact. “Evidence is not unduly prejudicial ‘merely
because it strongly implicates a defendant and casts him or her in a bad light.’ ” (People
v. Lindberg (2008) 45 Cal.4th 1, 50 [probative value of evidence that defendant was a
White supremacist not outweighed by potential of prejudicial effect in trial where
defendant was charged with a hate-murder special circumstance]; see, e.g., People v.
Quartermain (1997) 16 Cal.4th 600, 629 [admission of racial epithets may be
permissible].) But even assuming the jury may properly infer from the 2012 incident that
Waters harbored bias against members of racial or ethnic minorities, the probative value
of the evidence as to this instant offense would still be low. It is undisputed that the
offense took place at night, impairing Waters’s ability to discern anything about E.B.’s
racial identity.
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that night, if it was a White woman, we wouldn’t be here.” Although the prosecutor
referenced permissible inferences for the jury to make about Waters’s intent or absence
of mistake, the argument was essentially that Waters was acting in conformity with his
past acts—that he had previously assumed that the men at the Islamic booth were
“terrorists” based on their ethnicity and religion, assaulting one of the men, and thus must
have assumed that E.B. was a criminal based on his race, assaulting him as well. “This
was a conformity argument disguised as intent.” (People v. Williams, supra,
23 Cal.App.5th at p. 423.)
The time spent on proving the incident at the festival also increased the potential
for prejudice. (Evid. Code, § 352.) Because the events at the festival were disputed,
presentation of evidence of the 2012 incident became a mini-trial within the trial of the
2022 shooting charge, with testimony from Waters and four other witnesses on disputed
facts relating to whether provocation or self-defense mitigated Waters’s alleged assault of
S.Q. All this evidence was presented to litigate the circumstances surrounding a 10-year-
old incident that had little to do with the largely undisputed facts of the charged offense.
For these reasons, we conclude that the trial court abused its discretion under
Evidence Code section 352 when it admitted evidence of the 2012 incident, as it was
substantially more prejudicial than probative. (Chhoun, supra, 11 Cal.5th at p. 26.)
4. Deprivation of Constitutional Rights
Waters next argues that admission of the uncharged act had the additional
consequence of violating his due process rights by rendering his trial fundamentally
unfair and of violating his First Amendment rights by putting racial animus at issue
despite its irrelevance to the case. We find no violation of Waters’s due process rights,
and his First Amendment claim, even if it had merit, is forfeited.
Under Evidence Code section 353, “[a] verdict or finding shall not be set aside,
nor shall the judgment or decision based thereon be reversed, by reason of the erroneous
admission of evidence unless: [¶] (a) There appears of record an objection to or a
15
motion to exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion.” Even though failure to make a
timely and specific objection to evidence on the grounds asserted on appeal typically
forfeits the issue, Waters may for the first time on appeal make a “very narrow due
process argument” that a duly preserved “error in admitting the evidence over his
Evidence Code section 352 objection had the additional legal consequence” of denying
him due process of law. (People v. Partida (2005) 37 Cal.4th 428, 435 (Partida).)
But this argument lacks merit. “ ‘The dispositive issue is … whether the trial
court committed an error which rendered the trial “so ‘arbitrary and fundamentally
unfair’ that it violated federal due process.” ’ ” (People v. Albarran (2007)
149 Cal.App.4th 214, 229–230.) “ ‘Only if there are no permissible inferences the jury
may draw from the evidence can its admission violate due process.’ ” (Id. at p. 229.)
And “the evidence must have been ‘ “sufficiently material to provide the basis for
conviction or to remove a reasonable doubt that would have existed on the record without
it.” ’ ” (Dryden, supra, 60 Cal.App.5th at pp. 1025–1026; People v. Stammers (2026)
122 Cal.App.5th 1314, 1321 [erroneous admission of evidence violated due process when
there were “no permissible inferences” to be drawn from many exhibits that were
emphasized during cross-examination and closing argument].) Applying this standard,
we do not find that the introduction of evidence of the 2012 uncharged act violated due
process. Even assuming the jury could not have drawn any permissible inferences from
the evidence, the admission of the uncharged act did not render the trial fundamentally
unfair. Although the time spent on Waters’s uncharged act was significant, this was
largely because the facts of that prior act were hotly disputed, not because the incident
itself was the crux of the prosecution’s case. To the contrary, the prosecution’s case
largely rested on the surveillance videos that captured the shooting. (Cf. Stammers, at
p. 1323 [prosecutor “focus[ed] extensively” on irrelevant evidence].)
16
Waters’s First Amendment claim, however, is not preserved by the purely
evidentiary claims he raised in the trial court under Evidence Code sections 352 and
1101. “Under Evidence Code section 352, a court determines whether evidence
(including evidence of a defendant’s racist beliefs) is relevant and its probative value is
not substantially outweighed by the probability of prejudice, undue consumption of time,
confusing the issues, or misleading the jury.” (People v. Schultz (2020) 10 Cal.5th 623,
667 (Schultz).) Likewise, a claim that evidence is not admissible under Evidence Code
section 1101 requires a trial court to examine whether there is sufficient similarity
between an uncharged act and a charged offense to permit a jury to draw permissible
inferences about, for example, a defendant’s intent. (Chhoun, supra, 11 Cal.5th at p. 25.)
But “[a] First Amendment claim, on the other hand, asks a court to exclude evidence not
only because it is irrelevant, but because it is irrelevant and therefore its only possible
purpose is to invite the jury to convict the defendant based on protected speech or
associational activity.” (Schultz, at p. 668.) Because Waters’s First Amendment claim
differs from the grounds he sought exclusion of the evidence below, it has been forfeited.
(Ibid.)4
5. Harmlessness
The erroneous admission of evidence does not require reversal unless “it is
reasonably probable that a result more favorable to the [defendant] would have been
reached” in the absence of error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson);
4
Waters raises a perfunctory claim in his opening brief that trial counsel was
ineffective for failing to raise a First Amendment objection below. But as this contention
is unsupported by reasoned analysis or argument, we find it forfeited on appeal. (See
People v. Stanley (1995) 10 Cal.4th 764, 793.) Waters also argues that his counsel’s
objection to the evidence as a “racial dog whistle” preserves his First Amendment claim.
But counsel’s argument below was the evidence amounted to “a racial dog whistle that …
is highly prejudicial,” not that any tacitly signaled racist belief was within Waters’s First
Amendment rights and therefore inadmissible.
17
Dryden, supra, 60 Cal.App.5th at pp. 1024–1025 [applying Watson standard of harmless
error to erroneous admission of uncharged acts].)5 Although the prior act evidence had
sufficient prejudicial potential that it should have been excluded, Waters has shown no
reasonable probability of a more favorable verdict without that evidence.
Evidence of the uncharged act was admitted here for the limited purpose of
proving intent or absence of mistake in firing the gun. But assault with a semiautomatic
firearm (§ 245, subd. (b)) does not require discharge of a firearm, intentional or not.
Section 245, subdivision (b) requires commission of an assault and use of a
semiautomatic firearm in that assault. Pointing a gun at a person within shooting range,
even without firing, constitutes assault. (See People v. Rivera (2019) 7 Cal.5th 306, 333.)
And the evidence that Waters committed an assault with a semiautomatic firearm is
beyond dispute: Waters admitted to 911, police, and the jury that he pointed the gun at
E.B.; E.B. confirmed this; and the surveillance video documented it.
Nor is intentional discharge of the firearm necessary to the firearms enhancements.
Application of the personal use enhancement under section 12022.5, subdivision (a)
requires “ ‘something more than a bare potential of use’ ” but “ ‘not …conduct which
actually produces harm … only conduct which produces a fear of harm or force by means
or display of a firearm in aiding the commission of one of the specified felonies.’ ”
(People v. Wardell (2008) 162 Cal.App.4th 1484, 1492.) A defendant may thus
5
On appeal, Waters argues that the error is of federal constitutional dimension and
thus warrants reversal unless we find it harmless beyond a reasonable doubt. (See
Chapman v. California (1967) 386 U.S. 18.) But courts routinely apply the Watson
standard of harmless error when other crimes evidence was erroneously admitted. (See,
e.g., People v. Johnson (2022) 12 Cal.5th 544, 611; People v. Winkler, supra,
56 Cal.App.5th at p. 1164.) “Absent fundamental unfairness, state law error in admitting
evidence is subject to the traditional Watson test.” (Partida, supra, 37 Cal.4th at p. 439.)
As we have found no fundamental unfairness in the admission of the evidence nor any
preservation of Waters’s First Amendment claim, we apply the Watson standard of
harmless error to the claims.
18
personally “use” a firearm by “ ‘deliberately show[ing] a gun, or otherwise mak[ing] its
presence known’ ” with “ ‘no evidence to suggest any purpose other than intimidating the
victim (or others) so as to successfully complete the underlying offense.’ ” (Ibid.) And
the enhancement for personal infliction of great bodily injury (§ 12022.7, subd. (a))
applies even if Waters in committing the underlying assault with a semiautomatic firearm
was “ ‘the direct, rather than [the] proximate, cause of’ ” E.B.’s injuries. (People v. Elder
(2014) 227 Cal.App.4th 411, 418.) The enhancement “does not require a showing of
intent to inflict [great bodily injury], either general or specific”; it suffices that the
defendant acted with the intent necessary to the underlying felony and then personally
inflicted great bodily injury. (People v. Poroj (2010) 190 Cal.App.4th 165, 172.) Even if
Waters discharged the gun accidentally, the accidental nature of the resulting injury does
not affect the analysis of direct causation. (See People v. Guzman (2000) 77 Cal.App.4th
761, 764.)
Waters, however, argues that his self-defense theory turned on his credibility,
which was irremediably impaired by the introduction of evidence that suggested he held
racist beliefs. On the contrary, the evidence suggests his self-defense theory turned on
the surveillance video and the nonexistence of any evidence that E.B.—or even the
prowler earlier that night, or those who burglarized Waters’s truck two days earlier—
exhibited behavior conveying a threat of imminent bodily harm. Self-defense requires
more than a subjective fear of imminent bodily injury. (People v. Brady (2018)
22 Cal.App.5th 1008, 1014 (Brady) [belief in self-defense must “subjectively exist and be
objectively reasonable”].) In assessing prejudice to Waters’s claim of self-defense, we
consider “whether it is reasonably probable that one or more jurors would conclude that
the prosecution failed to meet its burden of proving beyond a reasonable doubt that
defendant did not act in lawful self-defense if this case were tried without the erroneous
admission of prior acts evidence.” (Dryden, supra, 60 Cal.App.5th at p. 1025.)
19
For self-defense, “ ‘the defendant must have an honest and reasonable belief that
bodily injury is about to be inflicted on him. [Citation.]’ [Citation.] The threat of bodily
injury must be imminent [citation], and ‘… any right of self-defense is limited to the use
of such force as is reasonable under the circumstances.’ ” (People v. Minifie (1996)
13 Cal.4th 1055, 1064–1065 (Minifie).) “To assess whether a belief was objectively
reasonable, ‘a jury must consider what “would appear to be necessary to a reasonable
person in a similar situation and with similar knowledge.” ’ ” (Brady, supra,
22 Cal.App.5th at p. 1014.) This objective inquiry requires the jury to assess “ ‘whether a
person of ordinary and normal mental and physical capacity would have believed he was
in imminent danger of bodily injury under the known circumstances.’ ” (Id. at p. 1015.)
Waters’s claim that he feared for his safety was premised on his testimony that he
believed that there was more than one culprit involved in the prior truck theft, that he had
heard from officers that the perpetrators might be gang members, and that he thought that
E.B. had a gun. Waters also based his reasonable need for self-defense on his testimony
that shouting “Where the fuck do you think you’re going” did not deter E.B. from
approaching the sidewalk. (Cf. People v. Enraca (2012) 53 Cal.4th 735, 761
[self-defense is inapplicable when a defendant “ ‘ “through his own wrongful conduct …
has created circumstances under which his adversary’s attack or pursuit is legally
justified” ’ ”].) But the surveillance video shows no aggressive or furtive gestures by
E.B. as he walked across the street toward the sidewalk. There is little from which the
jury could infer that an objective person, standing in Waters’s situation, would have
feared he was in imminent danger of bodily harm. (Brady, supra, 22 Cal.App.5th at
p. 1014.)
Evidence that Waters subjectively believed he was in imminent threat of bodily
harm is also scarce. Even if the jury credited Waters’s assertion that he believed E.B. to
be a thief, it was undisputed that Waters—in the 44 minutes that elapsed between his
chambering a round in his Glock and then shooting E.B.—never reported the prowler to
20
the police and instead waited outside to confront the suspected perpetrator. When he saw
E.B., Waters testified that he shouted, “ ‘Where the fuck do you think you’re going’ ” and
pointed his loaded weapon at E.B. even before E.B. reached the sidewalk, and he fired on
E.B. as E.B. fled. His conduct suggests not a fear of imminent harm but an intent to
intimidate by making unmistakable his ability to use deadly force.
Furthermore, “the right of self-defense does not extend beyond the time of real or
apparent danger; once [the attacker] fled, the right of self-defense did not excuse
defendant’s conduct.” (People v. Pinholster (1992) 1 Cal.4th 865, 966, disapproved on a
different point as stated in People v. Williams (2010) 49 Cal.4th 405, 458–459.) And
both the neighbor’s unenhanced video and the video enhanced by the prosecution’s
expert show that E.B. was running away when Waters fired his weapon.6 The right of
self-defense is also limited to force that is proportional under the circumstances (Minifie,
supra, 13 Cal.4th at p. 1065), and here, the use of force does not appear proportional
when E.B. made no threatening gestures or statements, and when the threat Waters was
intent on neutralizing was a property crime.
The evidence of the uncharged act no doubt painted Waters in a negative light.
Even though there was evidence from Boales in her testimony and her statements to
responding officers that the victim of that 2012 assault may have been confrontational,
none of the independent witnesses corroborated Waters’s claim of self-defense. And
Boales and the assault victim suggested that Waters was a bigot. But the risk of undue
prejudice was duly mitigated by the jury instructions. Those instructions expressly
limited the jury to considering the uncharged act only to the extent that it bore on whether
Waters’s actions were the result of a mistake or accident and not as evidence of bad
character or predisposition to commit a crime. The instructions also directed the jury to
6
During cross-examination, Waters himself conceded that the gun was not fired,
either accidentally or intentionally, until E.B. was running away and posed no threat to
him.
21
consider the similarity or lack of similarity between the charged offense and the
uncharged offense when evaluating the evidence for these limited purposes. And the
strength of the evidence against Waters affords us no reason to deviate from our
presumption that the jury followed these instructions. (People v. Sanchez (2001)
26 Cal.4th 834, 852.)
Given the copious evidence of Waters’s guilt, we find no reasonable probability of
a more favorable result had the uncharged act been excluded. (Watson, supra, 46 Cal.2d
at p. 836.)7
B. Prosecutorial Misconduct
Waters argues that the prosecutor committed misconduct by eliciting evidence of
Waters’s allegedly racist views, and then improperly urged the jury to convict him based
on his purported racial animus. But “[i]t is well settled that making a timely and specific
objection at trial, and requesting the jury be admonished (if jury is not waived), is a
necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal.”
(People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) Because Waters did not object on
the grounds of prosecutorial misconduct when the evidence was introduced or when the
prosecutor at closing argument argued that Waters possessed either racial animus or
implicit bias, his claim of misconduct is forfeited.
Waters nonetheless argues that his trial counsel’s failure to object on the grounds
of prosecutorial misconduct constituted ineffective assistance. But to establish counsel
was ineffective, Waters must both show that his counsel’s performance was deficient and
7
Waters adds that prejudice is further shown by the trial court’s reference at
sentencing to the 2012 incident. But the focus of our inquiry on prejudice from the
erroneous admission of trial evidence is whether a more favorable verdict is reasonably
probable absent the error. (Watson, supra, 46 Cal.2d at p. 836.) Waters does not argue
that the 2012 incident was an improper consideration at sentencing. (People v. Goulart
(1990) 224 Cal.App.3d 71, 82 [proper for judge to “consider evidence of other criminal
conduct even though it did not result in a conviction”].)
22
that he suffered prejudice from the deficiency. (Strickland v. Washington (1984)
466 U.S. 668, 687–692.) And “[o]n direct appeal, if the record ‘ “sheds no light on why
counsel acted or failed to act in the manner challenged,” ’ we must reject the claim
‘ “unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” ’ ” (People v. Caro (2019) 7 Cal.5th 463,
488.) “ ‘[D]eciding whether to object is inherently tactical, and the failure to object will
rarely establish ineffective assistance.’ ” (People v. Lopez (2008) 42 Cal.4th 960, 972.)
“The appellate record … rarely shows that the failure to object was the result of counsel’s
incompetence; generally, such claims are more appropriately litigated on habeas corpus,
which allows for an evidentiary hearing where the reasons for defense counsel’s actions
or omissions can be explored.” (Id. at p. 966.)
First, as to the prosecutor’s decision to elicit testimony about the uncharged act,
this accorded with the trial court’s ruling that the evidence was admissible. Despite our
conclusion that the evidentiary ruling was in error, “no misconduct result[s] from the
prosecutor’s reliance on testimony that the trial court had already ruled was properly
before the jury.” (People v. Parker (2022) 13 Cal.5th 1, 77.) It is not ineffective
assistance to decline to make meritless objections. (People v. Aguirre (2025) 18 Cal.5th
629, 707 (Aguirre).) Having already fruitlessly objected to the admission of the same
evidence, defense counsel could have reasonably decided it was tactically unwise to
make a similarly fruitless objection that might only amplify the disputed evidence’s
impact.
Second, as to the prosecutor’s closing argument, competent counsel would
reasonably have doubted whether an objection to the prosecutor’s statements would have
been sustained given the trial court’s ruling on the evidence’s admissibility. And despite
the number of witnesses who testified about the 2012 incident, the prosecutor only briefly
mentioned the incident. Defense counsel thus may have reasonably considered it “more
23
certain that an unsuccessful objection would have brought undue attention to what was
otherwise a brief remark.” (Aguirre, supra, 18 Cal.5th at p. 710.)
Accordingly, we do not find that Waters has met his burden to demonstrate that
defense counsel’s omissions constituted deficient performance.
C. Instructional Error
Waters next argues that the trial court prejudicially erred by instructing the jury,
over defense objection, with CALCRIM No. 361, which states that “[i]f the defendant
failed in his testimony to explain or deny evidence against him, and if he could
reasonably be expected to have done so based on what he knew, [the jury] may consider
his failure to explain or deny in evaluating that evidence.” We agree with Waters that the
trial court erred in giving the instruction but conclude that any error was harmless.
1. Legal Principles and Standard of Review
Under Evidence Code section 413, “[i]n determining what inferences to draw from
the evidence or facts in the case against a party, the trier of fact may consider, among
other things, the party’s failure to explain or to deny by his testimony such evidence or
facts in the case against him, or his willful suppression of evidence relating thereto, if
such be the case.” CALCRIM No. 361 in turn “rests on the logical inference that if a
person charged with a crime is given the opportunity to explain or deny evidence against
him or her but fails to do so, then that evidence may be entitled to added weight.”
(People v. Grandberry (2019) 35 Cal.App.5th 599, 605.) CALCRIM No. 361, however,
contains cautionary language, and provides that a failure to explain or deny evidence “is
not enough by itself to prove guilt.”
The California Supreme Court has clarified that “the instruction applies only when
a defendant completely fails to explain or deny incriminating evidence, or claims to lack
knowledge and it appears from the evidence that the defendant could reasonably be
expected to have that knowledge.” (People v. Cortez (2016) 63 Cal.4th 101, 117
(Cortez).) The instruction, however, does not apply in situations where “the defendant’s
24
testimony conflicts with other evidence or may be characterized as improbable,
incredible, unbelievable, or bizarre,” as that is not “ ‘the functional equivalent of no
explanation at all.’ ” (Ibid.) Rather, in these latter situations, the defendant’s testimony
suggests that the defendant may have lied about something significant and the court may
instruct the jury to “ ‘consider not believing anything that witness says.’ ” (Ibid.) “[T]he
focus of CALCRIM No. 361, as its language indicates, is not on the defendant’s
credibility as a witness, but on the role of a testifying defendant’s failure to explain or
deny incriminating evidence in how jurors ‘evaluat[e] that evidence,’ i.e., the evidence
the defendant has failed to explain or deny.” (Id. at p. 118.) For example, a defendant’s
silence on an issue does not act as a confession as it is considered “ ‘only in relation to
evidence that he fails to explain or deny.’ ” (Ibid., italics added.)
We review de novo a claim of instructional error. (People v. Mitchell (2019)
7 Cal.5th 561, 579.) Generally, a “ ‘trial court must give a requested instruction only if it
is supported by substantial evidence, that is, evidence sufficient to deserve jury
consideration.’ ” (People v. Leon (2020) 8 Cal.5th 831, 848 (Leon).)
2. Analysis
As observed by Waters, when the trial court overruled defense counsel’s objection
to CALCRIM No. 361, the court identified no evidence that Waters completely failed to
explain or deny. Nor have we found any. Although the Attorney General proffers
several instances, we find that the Attorney General’s arguments largely mischaracterize
Waters’s testimony. There was thus insufficient evidence to warrant the instruction.
(Leon, supra, 8 Cal.5th at p. 848.)
First, the Attorney General asserts that Waters, when asked why he sat on his
porch with a loaded gun rather than call the police about the masked man he had seen in
his driveway, testified that he was unsure. Not so. Waters in fact testified that when he
last called the police about the burglary, the police had “just [driven] around, looking for
someone,” and that he “didn’t want to waste [the officers’] time.” On cross-examination,
25
Waters added that he did not call 911 because he “didn’t see anyone around anymore”
and he did not think it was the right time to call first responders. Waters did not fail to
explain or deny his decision not to call the authorities; he essentially testified that he
believed it was unnecessary.
Next, the Attorney General argues that Waters could not explain when asked why
he thought E.B. was associated with the masked man seen on the driveway 40 minutes
before E.B.’s arrival. Here too, the Attorney General excludes the context surrounding
Waters’s statement. Waters testified that he believed someone had been hiding behind
the bush until he believed Waters was gone—which is why Waters claimed that he
“knew” that the men on the surveillance videos were hiding in the bushes. In other
words, Waters explained that he believed E.B. was one of the masked men because he
thought that the men had been hiding the entire time, emerging only when they thought
he had left.
Third, the Attorney General argues that when asked why he showed law
enforcement a screenshot of his video surveillance footage instead of the surveillance
footage himself, Waters answered he was unsure. The Attorney General again excludes
the context of Waters’s statements. Waters was asked why he told responding officers
that he “got the picture” of the men who had been on the driveway and did not tell the
officer specifically that he had a “video.” But Waters explained his statements, testifying
that he believed that he had indeed shown the officer a video. That Waters testified that
he was unsure why he said “picture” instead of “video” was not a failure to explain or
deny any incriminating evidence.
Finally, the Attorney General argues that despite Waters’s repeated claims that he
fired the weapon accidentally, he failed to explain why he did not say so to E.B., to the
911 operator, or to the responding officers. But as support, the Attorney General cites
only those portions of Waters’s testimony where he testified that the shooting was
accidental; in none of these excerpts was Waters asked why he did not earlier
26
characterize the shooting as accidental. CALCRIM No. 361 does not apply when the
defendant’s testimony merely contradicts other evidence in the record. (Cortez, supra,
63 Cal.4th at p. 117.) Waters’s testimony that the shooting was accidental is not a
“complete[]” failure to explain or deny his prior statements but simply his account of
what happened. (Ibid.) And Waters did attempt to explain his prior statements when he
testified on redirect examination that in talking to officers and the 911 dispatcher after the
incident, he had felt overwhelmed and his head was unclear. Whatever the ultimate
plausibility of this testimony, it was not a functional equivalent of no response at all.
(Cortez, at p. 117.)
Accordingly, we find that no substantial evidence supported the trial court’s
instructing the jury with CALCRIM No. 361. (Leon, supra, 8 Cal.5th at p. 848.)
3. Prejudice
Finding instructional error does not end our inquiry. Reversal is required only if
Waters can demonstrate prejudicial error on this record. Courts have applied the standard
of prejudice articulated in Watson, supra, 46 Cal.2d at page 836—whether it is
reasonably probable that in the absence of error, the defendant would have received a
more favorable result—in cases involving instructional error with CALCRIM No. 361.
(See People v. Saddler (1979) 24 Cal.3d 671, 683.) We find any error harmless.
The jury here was instructed that not all the instructions necessarily applied,
“thereby ‘mitgat[ing] any prejudicial effect’ ” related to the trial court’s instruction with
CALCRIM No. 361. (People v. Vega (2015) 236 Cal.App.4th 484, 503 (Vega).) And
even though “giving an irrelevant or inapplicable instruction” is error, it is “generally
‘ “only a technical error which does not constitute ground for reversal.” ’ ” (People v.
Cross (2008) 45 Cal.4th 58, 67.) We presume that the jurors would have considered the
instruction, and to the extent it was inapplicable, declined to apply it to the facts before it.
(People v. Rowland (1992) 4 Cal.4th 238, 281.)
27
Additionally, “we evaluate the impact of CALCRIM No. 361 in the context of the
instructions as a whole, starting with the carefully constructed internal balance to No. 361
itself. CALCRIM No. 361 does not direct the jury to draw an adverse inference. It
instructs the jury that failure to explain or deny alone is not a sufficient basis upon which
to infer guilt, and it highlights the prosecution’s burden to prove guilt beyond a
reasonable doubt.” (Vega, supra, 236 Cal.App.4th at pp. 502–503.) “Ultimately, the
instruction leaves the ‘meaning and importance’ of the failure to explain or deny in the
jurors’ hands.” (Id. at p. 503.) Presumably, the jury, applying CALCRIM No. 361,
would have first considered whether Waters did indeed fail to explain or deny the
evidence against him, and would have then solely used that failure to explain or deny that
evidence in evaluating that evidence, not inferring guilt from his failure to explain or
deny. This would have had minimal impact on the jury’s deliberations, given that Waters
did not appear to either fail to explain or deny the incriminating evidence against him.
Finally, as discussed ante, the evidence of Waters’s guilt was overwhelming.
There was video evidence that he shot E.B. and that he did so as E.B. was attempting to
flee, in direct contravention to Waters’s claim of self-defense and reasonable belief that
he or anyone else was in imminent danger. The assault as committed would have been
complete when Waters pointed the weapon at E.B. That Waters disputed whether his
shooting the gun was intentional or accidental had little to no bearing on his guilt for the
assault conviction, nor did it bear on whether he personally used the weapon.
Accordingly, the instructional error here was harmless. (Watson, supra, 46 Cal.2d
at p. 836.)
D. Cumulative Prejudice
Waters argues that the cumulative effect of the trial errors warrants reversal of his
convictions. (See People v. Hill (1998) 17 Cal.4th 800, 844.) We have found error in the
admission of Waters’s uncharged act and in instructing the jury with CALCRIM No. 361.
We found the errors to be separately harmless and the erroneous administration of
28
CALCRIM No. 361 to have a negligible impact. Given the strength of the evidence
against Waters, which included the video evidence that captured the shooting, it is not
reasonably probable that Waters would have received a more favorable outcome in the
absence of these cumulated errors.
E. Sentencing Issues
Finally, Waters argues that the trial court erred at sentencing by failing to consider
future dangerousness when determining whether to strike any of his enhancements under
section 1385 and by imposing the upper term sentence for his conviction of assault. But
Waters has not shown the trial court misunderstood or abused its discretion.
1. Section 1385
a. Legal Principles
Section 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.” “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) through (I) are present. 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.” (§ 1385,
subd. (c)(2).)8
The term “[e]ndanger public safety” is defined to mean “a likelihood that the
dismissal of the enhancement would result in physical injury or other serious danger to
others.” (§ 1385, subd. (c)(2).) In People v. Gonzalez (2024) 103 Cal.App.5th 215
(Gonzalez), the Court of Appeal held that “[t]he plain words of the statute do not support
8
Among the mitigating circumstances include cases where “[m]ultiple
enhancements are alleged in a single case. In this instance, all enhancements beyond a
single enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(B).)
29
[a] trial court’s singular focus on whether the defendant currently poses a danger” to
public safety. (Id. at p. 228.) “Although the current dangerousness of the defendant is an
appropriate factor to consider, as it will have some bearing on whether dismissing the
enhancement would endanger the public, a crucial part of the inquiry is how the dismissal
… will impact the length of the defendant’s sentence.” (Ibid.; see id. at p. 220 [noting
that the enhancement at issue increased the defendant’s indeterminate sentence from 50
years to life to 75 years to life].)
We review the trial court’s decision not to strike an enhancement under section
1385 for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 371
(Carmony).) A trial court abuses its discretion if it bases its decision on impermissible
factors or on an incorrect legal standard. (People v. Knoller (2007) 41 Cal.4th 139, 156.)
Although section 1385, subdivision (a) requires the trial court to state its reasons for
dismissing an enhancement on the record, “there is no similar statutory requirement when
a court denies a request to dismiss an enhancement.” (People v. Bravo (2025)
107 Cal.App.5th 1144, 1157 (Bravo).)
b. Application to Waters’s Case
First, Waters argues that the trial court misunderstood the scope of its discretion
by considering only his present dangerousness, not his future dangerousness should his
enhancements be stricken. Not so.
When declining to dismiss any of Waters’s enhancements, the trial court stated
that “dismissal of the allegations is not warranted by section 1385” and that “pursuant to
[People v. Ortiz (2023) 87 Cal.App.5th 1087 (Ortiz)], cited by the People, … the
defendant poses a danger to public safety.”9 The trial court expressly “note[d] the nature
9
In People v. Walker (2024) 16 Cal.5th 1024, the California Supreme Court,
agreeing with this court’s decision in Ortiz, found that “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, credible
evidence of countervailing factors that ‘may nonetheless neutralize even the great weight
30
and circumstance of the instant offense, coupled with the 2012 incident, and the
defendant’s outburst at the last court hearing demonstrate a lack of self-control and
restraint on the part of the defendant, which is extremely troubling.”10 The trial court’s
comments belie any suggestion that it misunderstood the scope of its discretion.
“Absent evidence to the contrary, we presume that the trial court knew the law and
followed it.” (People v. Ramirez (2021) 10 Cal.5th 983, 1042.) And Gonzalez—which
explained that current dangerousness should not be a trial court’s singular focus when
making a public safety determination about a defendant sentenced to an indeterminate
term (Gonzalez, supra, 103 Cal.App.5th at p. 228), was decided June 27, 2024, nearly a
month before the trial court held its sentencing hearing on July 24, 2024. That the trial
court considered several factors—including the circumstances of Waters’s current
offense, the uncharged act from 2012, and his abusive outburst at the prosecutor—does
not show that the court considered only Waters’s current dangerousness and did not
consider how striking any of the enhancements would impact Waters’s overall sentence.
(Cf. Gonzalez, at p. 228; see People v. Jones (2022) 86 Cal.App.5th 1076, 1092 [that trial
court did not mention evidence does not mean it ignored it].) To the contrary, the trial
court’s comments suggest that it discerned a theme of deliberately provocative aggression
that persisted over years, despite the injury to E.B. (accidental or not) and gravity of these
proceedings. Nor was the trial court required to state all its reasons for declining to
of the mitigating circumstance, such that dismissal of the enhancement is not in
furtherance of justice.’ ” (Walker, at p. 1036, quoting People v. Ortiz, supra,
87 Cal.App.5th at p. 1098.)
10
Mid-argument at a prior court hearing, the prosecutor asked to note for the
record that Waters had interjected by looking directly at him and calling him a “ ‘lying
cunt.’ ” Waters interrupted the prosecutor’s request by saying, “Put that on the record.
That’s what you are. [¶] … [¶] And you know it. [¶] … [¶] That’s what you are, boy.”
As the prosecutor continued with his argument on the aggravating factors, Waters
referred to the argument as a “[s]tatement to [the prosecutor’s] sick imagination.”
31
dismiss an enhancement on the record. (Bravo, supra, 107 Cal.App.5th at p. 1157.) This
case is distinguishable from Gonzalez, as there, the record affirmatively showed that the
trial court considered only the defendant’s current dangerousness without consideration
for the parole suitability determination that would necessarily precede release even if an
enhancement were stricken. (Gonzalez, at pp. 228, 230–231.)
We therefore presume that the trial court “considered all of the relevant factors
and properly applied the law.” (People v. Brugman (2021) 62 Cal.App.5th 608, 638;
Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 [“a trial court judgment is ordinarily
presumed to be correct and the burden is on an appellant to demonstrate” error].)
Waters’s claim that the trial court misunderstood its discretion therefore lacks merit.11
2. Section 1170
a. Legal Principles
Under section 1170, subdivision (b)(1), when a statute specifies three possible
terms of imprisonment, “the court shall, in its sound discretion, order imposition of a
sentence not to exceed the middle term, except as otherwise provided in paragraph (2).”
Paragraph (2) of section 1170, subdivision (b) specifies that “[t]he court may impose a
sentence exceeding the middle term only when there are circumstances in aggravation of
the crime that justify the imposition of a term of imprisonment exceeding the middle term
and the facts underlying those circumstances have been stipulated to by the defendant or
have been found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.”
11
Waters focuses his appellate argument on what he claims is the trial court’s
misunderstanding of the scope of its discretion. Other than a conclusory statement that it
would be “simply unreasonable” to conclude that he could pose a serious threat to the
public if released at 80 years old, he does not argue that the express or implied factual
findings on which the trial court based its exercise of sentencing discretion were
unsupported by evidence.
32
“Discretionary sentencing decisions, such as whether ‘the aggravating
circumstances outweigh the mitigating circumstances [so] that imposition of the lower
term would be contrary to the interests of justice’ [citation] are reviewed for an abuse of
discretion.” (People v. Salazar (2023) 15 Cal.5th 416, 428, fn. 8.) Section 1170,
subdivision (b)(5) requires that “[t]he court shall set forth on the record the facts and
reasons for choosing the sentence imposed.”
Here, the trial court found true two aggravating factors after a court trial: that the
crime involved great violence, or other acts disclosing a high degree of cruelty,
viciousness, or callousness (Cal. Rules of Court, rule 4.421(a)(1))12 and that the victim
was particularly vulnerable (id., rule 4.421(a)(3)). On appeal, “[w]e review an
aggravating factor finding for substantial evidence.” (People v. Mendez-Torres (2025)
113 Cal.App.5th 1007, 1020.)
b. Great Violence, Cruelty, Viciousness, or Callousness
Waters challenges the sufficiency of the evidence to support the trial court’s
finding that the crime involved other acts disclosing a high degree of cruelty, viciousness,
or callousness under California Rules of Court, rule 4.421(a)(1).13 But substantial
evidence supports the trial court’s finding on this factor.
12
Specifically as to the aggravating factor set forth under rule 4.421(a)(1), the
court did not rely on a finding of “great bodily harm” and instead relied solely on the
“great violence,” “cruelty, viciousness, or callousness” prong, as the prosecutor conceded
that the “great bodily harm” would be duplicative of the great bodily injury enhancement
found true under section 12022.7, subdivision (a). (§ 1170, subd. (b)(5) [“court may not
impose an upper term by using the fact of any enhancement upon which sentence is
imposed”]; see People v. Scott (1994) 9 Cal.4th 331, 350 [trial court cannot use the same
fact to impose an enhancement and upper term]; People v. Gutierrez (1992)
10 Cal.App.4th 1729, 1735 [trial court erred by relying on great bodily injury to impose
upper term when enhancement was imposed for great bodily injury].)
13
Waters does not challenge the sufficiency of the evidence to support the
aggravating factor that the victim was particularly vulnerable (Cal. Rules of Court,
rule 4.421(a)(3)).
33
First, we reject Waters’s argument that because the jury was not called to make a
finding as to whether the firearm discharge was intentional or accidental, the trial court
could not make any such conclusions on its own. Waters waived jury trial on the
aggravating factors. And under section 1170, subdivision (b), an aggravating factor can
be found true by the trial court sitting as a fact finder. That the jury did not need to find
the shooting intentional to render its verdict did not mean that the trial court, sitting now
as the fact finder, was thereby prohibited from making factual findings on its own.
Substantial evidence supports the trial court’s determination that the crime either
involved great violence, or cruelty, viciousness, or callousness. Ample evidence
contradicted Waters’s claim of accidental discharge. Waters armed himself with a loaded
weapon, chambered a round, then lay in wait for nearly 44 minutes before E.B.’s crossing
the street in front of Waters’s home; the prosecution’s firearms expert testified to the
operative safety features of the gun and the force necessary to pull the trigger; according
to E.B., Waters taunted him before firing by saying, “You think you can run?” and
approached after firing, his arm still raised and a “slight smirk” on his face; and Waters
shot E.B. after he turned and began to flee. Although Waters testified that he thought
E.B. was armed, there was no evidence that E.B. had a weapon and no indication from
the surveillance videos that E.B. made any threatening moves toward Waters before he
was shot.
All this was sufficient evidence from which the trial court could infer a high
degree of callousness or cruelty toward E.B.
c. Exercise of Discretion
Waters also argues that the trial court pointed to no factors that made his assault
with a firearm “distinctively worse” than other offenses, and the factors in aggravation
here cannot justify the upper term. But “ ‘[a]n aggravating circumstance is a fact that
makes the offense “distinctively worse than the ordinary.” ’ ” (People v. Hicks (2017)
17 Cal.App.5th 496, 512.) The trial court here found two aggravating circumstances, and
34
even a single aggravating factor is sufficient to permit the trial court to impose an upper
term sentence. (See People v. Lynch (2024) 16 Cal.5th 730, 764 [nothing in § 1170,
subd. (b)(2) prohibits imposition of upper term based on single aggravating factor if that
factor justifies imposition of term exceeding middle term].) That the trial court was silent
on whether it considered the mitigating factors outlined by Waters did not mean that the
court declined to consider them.
Finally, Waters argues that the trial court’s sentencing choice was unreasonable, as
the sentence of 15 years at his age (66 years at the time of his arrest) “effectively
condemned [him] to spend the rest of his life in prison on the basis of public safety.” But
we review the trial court’s discretionary sentencing choices for an abuse of discretion.
And the burden thus rests on Waters to demonstrate that “ ‘ “the sentencing decision was
irrational or arbitrary.” ’ ” (Carmony, supra, 33 Cal.4th at p. 376.) Furthermore, a
decision “ ‘ “will not be reversed merely because reasonable people might disagree.” ’ ”
(Id. at p. 377.) Under this standard, “a trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
On this record, Waters has not shown the trial court’s imposition of the upper term
constituted an abuse of discretion.14 The trial court considered the severity of the offense,
including what it determined to be the great violence with which it was perpetrated, and
the vulnerability of the victim, in determining that imposition of a term exceeding the
middle term was justified. Even if others might reasonably disagree about the proper
sentence length, such disagreement does not mean the trial court’s decision was so
14
The probation report recommended a mitigated term of three years for the
assault, with the punishment for the personal use of a firearm enhancement stricken, and
a three-year sentence for the great bodily injury enhancement for a total term of
imprisonment of six years. But courts are not bound by a probation officer’s
recommended sentence. (People v. Welch (1993) 5 Cal.4th 228, 234.)
35
arbitrary as to amount to an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 376.)
Waters has not demonstrated reversible error on this record.
III. DISPOSITION
The judgment is affirmed.
36
LIE, Acting P. J.
WE CONCUR:
WILSON, J.
BROMBERG, J.
People v. Waters
H052466