Filed 8/10/26 P. v. Davis CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B336424

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA157293)
v.

KEYSHAWN DAVIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Kelvin D. Filer, Judge. Affirmed.
Susan Morrow Maxwell, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________________
 INTRODUCTION
A jury convicted defendant Keyshawn Davis of willful,
deliberate, and premeditated attempted murder, assault with a
firearm, and felony possession of a firearm. The trial court
sentenced Davis to a total term of 11 years and 8 months to life in
prison. On appeal, Davis contends: (1) insufficient evidence
supports the jury’s finding that the attempted murder was
willful, deliberate, and premeditated; (2) the court prejudicially
erred when it excluded evidence of the victim’s prior charged
misconduct; and (3) the court violated Penal Code section 1170,1
subdivision (b)(6), when it imposed the middle, as opposed to the
low, term for some of his convictions. Davis also argues that his
trial counsel provided ineffective assistance at the sentencing
hearing. We reject each of Davis’s contentions and affirm.
FACTUAL BACKGROUND
1. Prosecution evidence
Davis is a member of the 94 Hoovers gang. At the time of
the shooting in this case, the 94 Hoovers were feuding with the
Neighborhood Crips, a predominantly African American gang
associated with the color blue.
One afternoon in late April 2022, Davis was socializing
with a group of people in front of an apartment complex on
Denver Avenue in Los Angeles, which was in 94 Hoovers
territory. Davis left the group for a few minutes before returning
with a gun.
Several minutes later, Lamar Jenkins, an African
American male, drove his car down Denver Avenue towards the

1 All undesignated statutory references are to the Penal
Code.

2
apartment complex where Davis was hanging out. Jenkins, who
was not a member of the Neighborhood Crips or any other gang,
was wearing a blue jacket. Jenkins did not have a gun or any
other weapon inside his car. Jenkins did not say anything to
Davis or his group. Surveillance footage shows Jenkins’s car did
not slow down or stop as it drove past the apartment complex.
As Jenkins drove past the complex, Davis ran into the
street, pointed his gun at Jenkins’s car, and fired several shots at
it. Jenkins sped down the street and made a right turn at the
nearest intersection as Davis continued to run after him and fire
several more shots at his car. The police recovered nine
.9 millimeter bullet casings at the scene of the shooting.
Davis was later arrested and interviewed by the police.
Davis initially denied knowing who was involved in the shooting,
but he later admitted that he shot at Jenkins’s car. Davis told
the police that he suffered from posttraumatic stress disorder
(PTSD). Davis had been shot at several times before, including
the day before the shooting in this case. He was carrying a gun
on the day of the shooting because he was afraid of being shot.
According to Davis, Jenkins pulled his car next to the group
that Davis was hanging out with and began “mad dogging” them.
Davis thought he saw Jenkins reach for a gun and “mumble[]
something.” Davis was afraid that Jenkins would start shooting,
so Davis ran into the street and fired several shots towards
Jenkins’s car. Davis did not intend to hit Jenkins. Instead,
Davis claimed his PTSD caused him to black out during the
shooting. When the police asked Davis, “[w]hat if [Jenkins was] a
square and he doesn’t carry guns,” Davis apologized and stated
that he regretted what he did.

3
2. Defense evidence
Davis testified. He was 20 years old at the time of the
shooting. He joined the 94 Hoovers because most of his family,
including his mother, uncle, and cousins, were associated with
the gang.
Davis’s sister lived in the apartment complex where he was
hanging out at the time of the shooting. The night before the
shooting, Davis had someone hide the gun that he used to shoot
at Jenkins’s car near the backyard of his sister’s apartment
complex. Davis retrieved the gun on the day of the shooting
because he was “nervous” and “trying to protect” himself. Davis
was nervous because he had been shot at 20 times in the past,
including during drive-by shootings. On one occasion, Davis was
shot seven times.
After he was shot, Davis started to think “everybody is
there wanting to shoot me and stuff like that.” Davis was later
diagnosed with PTSD and prescribed medication. Davis stopped
taking the medication before the shooting in this case.
Davis described why he shot at Jenkins’s car: “So I seen
the car, and I seen the dude. He had one arm on the steering
wheel and one hand, like, towards the center console. So I’m
looking. I panic and I get nervous. I don’t want him to shoot at
me or shoot me or anything. So I’m like, okay, I’m just going to
go after but not shoot the car. I will just shoot so I don’t hit the
car. Just scare him away. I didn’t want to injure anybody. I
didn’t have any intent.” Davis claimed that he did not notice that
Jenkins was wearing the color blue. Davis only shot at Jenkins
because he thought Jenkins was reaching for a gun as he drove
past the apartment complex.

4
 Davis testified that he drank alcohol and “did some crystal”
before he shot at Jenkins’s car. Davis felt “really” bad and
remorseful for shooting at Jenkins’s car, and he believed that he
“should have been thinking and have a level head, but the drugs
and the PTSD just don’t mix.”
Dr. Kory Knapke, a forensic psychiatrist, testified for the
defense. Dr. Knapke evaluated Davis and reviewed the
investigative materials from this case as well as Davis’s medical
and mental health records. According to Dr. Knapke, Davis was
“pretty authentic and … sincere,” and he was “remorseful” and
“very up front about his previous criminal history.” Dr. Knapke
confirmed that Davis nearly died when he was shot “seven or
eight times” in a previous drive-by shooting.
Dr. Knapke “strongly believe[d]” that Davis suffered from
PTSD and a “very severe” substance abuse problem. According to
Dr. Knapke, PTSD “is a diagnosis that occurs frequently in some
individuals after they have experienced a severe trauma in which
they have either been the victim of a severe trauma, or they have
witnessed a severe trauma.” People suffering from PTSD
“develop severe anxiety symptoms to the point where they begin
to have flashbacks in which they have memories and begin to
almost relive the original trauma in their current day life.” They
also become “very angry” and “extremely impulsive at times for
no apparent reason.”
According to Dr. Knapke, Davis’s family took Davis to a
mental health facility a little over a month before the shooting in
this case because he was “very out of control,” “experiencing
hallucinations,” and talking about reliving “the original drive-by
shooting.” Davis was briefly admitted to the facility and
prescribed medication to treat his symptoms.

5
 Dr. Knapke discussed Davis’s “extremely difficult” family
history. Davis never knew his biological father, and his mother,
who suffered from schizophrenia, died when he was very young.
Davis was raised by his maternal great grandmother. Because
he lacked a traditional “family structure,” Davis turned to a
“gang lifestyle,” and his fellow gang members became his family
growing up.
Dr. Knapke believed that Davis’s exposure to a gang
lifestyle from a young age caused him to develop
“hypervigilance.” Hypervigilance causes people to experience “so
much anxiety and paranoia that they are frequently scanning
their environment, they are looking over their shoulder, they are
very guarded, they fear that they might be hurt in some way by
other people.” Dr. Knapke also believed that Davis was “labile,”
which causes a person to have “rapid shifting of emotions and
behaviors that change very rapidly.” Based on an interview with
Davis and a review of the surveillance footage in this case,
Dr. Knapke opined that Davis was under the influence of drugs
and showing signs of hypervigilance and lability in the minutes
leading up to the shooting.
When asked whether the way Davis shot at Jenkins’s car
was consistent with a person suffering from PTSD, Dr. Knapke
responded, “Yes and no.” According to Dr. Knapke, Davis reacted
“very impulsive[ly]” when he saw Jenkins drive past the
apartment complex. Unlike most people who suffer from PTSD,
however, Davis did not “avoid people, places and things that
remind [him] of the original trauma.” Dr. Knapke believed it was
a “weak point” in this case that Davis “was with his fellow gang
bangers in front of this apartment complex, was not avoiding that
type of situation and was out on the street.” However, “the fact

6
that [Davis] impulsively fired at just a random stranger without
any provocation whatsoever really points to the fact that he …
most likely was very paranoid and was just very impulsive and
was very agitated at the time of this incident.”
On cross-examination, Dr. Knapke confirmed that Davis’s
failure to avoid triggering situations was a “weak point” in the
doctor’s diagnosis that Davis suffered from PTSD. When asked
why Davis did not respond violently to every car that drove past
the apartment complex on the day of the shooting, Dr. Knapke
opined that Davis’s reaction to Jenkins could have depended on
whether Davis perceived Jenkins as being a gang member.
PROCEDURAL BACKGROUND
In July 2023, the People filed an amended information
charging Davis with willful, deliberate, and premeditated
attempted murder (count 1), possession of a firearm with a prior
violent conviction (count 2), and assault with a machine gun or
assault weapon (count 3). As to counts 1 and 3, the People
alleged that Davis personally used a firearm. As to all counts,
the People alleged seven aggravating sentencing factors under
California Rules of Court, rule 4.421. Before trial, the court
dismissed count 3 and allowed the People to amend the
information to allege count 4, assault with a semiautomatic
firearm.
A jury convicted Davis of counts 1, 2, and 4. As to count 1,
the jury found the attempted murder was willful, deliberate, and
premeditated. As to counts 1 and 4, the jury found that Davis
personally used a firearm during the commission of the offense.
After Davis waived his right to a jury trial on the aggravating
sentencing factors, the trial court found six of those factors true.

7
The trial court sentenced Davis to a total term of 11 years and
8 months to life in prison.2
Davis appeals.
DISCUSSION
1. Substantial evidence supports the jury’s finding that
the attempted murder was willful, deliberate, and
premeditated
Davis first challenges the sufficiency of the evidence to
support his attempted murder conviction. He does not argue that
insufficient evidence supports the jury’s finding that he
attempted to kill Jenkins. Instead, Davis contends that the
People failed to prove that he committed the attempted murder
willfully, deliberately, and with premeditation. As we explain,
substantial evidence supports the jury’s finding that the
attempted murder was willful, deliberate, and premeditated.
1.1. Applicable law and standard of review
To establish a crime was willful, deliberate, and
premeditated, the People must show more than an intent kill.
(People v. Solomon (2010) 49 Cal.4th 792, 812.) Premeditated
means “ ‘ “ ‘ “considered beforehand,” ’ ” ’ ” and deliberate means
“ ‘ “ ‘ “formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against
the proposed course of action.” ’ ” ’ ” (People v. Morales (2020)
10 Cal.5th 76, 88 (Morales).) An attempted killing is
premeditated and deliberate if it was the result of preexisting
thought and reflection rather than unconsidered or rash impulse.

2 The court also found that Davis violated probation in a
separate case, for which it imposed a consecutive three-year
prison term.

8
(Ibid.) “ ‘ “The true test is not the duration of time as much as it
is the extent of the reflection. Thoughts may follow each other
with great rapidity and cold, calculated judgment may be arrived
at quickly.” ’ ” (Ibid.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our
Supreme Court identified “ ‘three basic categories’ of evidence
[that the] court has generally found sufficient to sustain a finding
of premeditation and deliberation: (1) planning activity, or ‘facts
about how and what [the] defendant did prior to the actual
killing which show that the defendant was engaged in activity
directed toward, and explicable as intended to result in, the
killing’; (2) motive, or ‘facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury
could reasonably infer a “motive” to kill the victim’; and
(3) manner of killing, or ‘facts about the nature of the killing from
which the jury could infer that the manner of killing was so
particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take
his victim’s life in a particular way for a “reason.” ’ ” (Morales,
supra, 10 Cal.5th at pp. 88–89.)
The categories of evidence described in Anderson are not
elements or the exclusive means of proving a crime was
committed with premeditation and deliberation. (Morales, supra,
10 Cal.5th at p. 89.) Reviewing courts are not required to accord
them any particular weight. (Ibid.) Rather, they provide “ ‘a
framework to aid in appellate review.’ ” (Ibid.)
We review a jury’s findings supporting a conviction for
substantial evidence. We review the record in the light most
favorable to the judgment to determine whether it contains
substantial evidence from which a reasonable jury could find the

9
defendant guilty beyond a reasonable doubt. (People v. Wilson
(2008) 44 Cal.4th 758, 806.) We make all reasonable inferences
in support of the judgment. (Ibid.) We do not reweigh the
evidence or reevaluate the credibility of witnesses. (People v.
Lindberg (2008) 45 Cal.4th 1, 27.) If the evidence reasonably
justifies the jury’s findings, we will not reverse the judgment
even if the evidence also supports a contrary finding. (People v.
Cravens (2012) 53 Cal.4th 500, 508 (Cravens).)
1.2. Analysis
There was evidence of planning activity. Davis testified
that the night before the shooting, he had someone stash a gun in
the neighborhood where the shooting occurred. Shortly before
the shooting, Davis retrieved the gun because he was nervous
and wanted to protect himself. As our Supreme Court has
explained, evidence that a defendant armed himself with a
weapon before he initiated a violent encounter supports an
inference that the defendant engaged in planning activity. (See
People v. Lee (2011) 51 Cal.4th 620, 636; People v. Elliot (2005)
37 Cal.4th 453, 471.)
The manner of the shooting also supports a finding of
premeditation and deliberation. Davis fired over seven shots at
Jenkins as he drove away from the apartment complex. Firing
multiple shots at “an unarmed and defenseless victim who posed
no threat to [the defendant]—is entirely consistent” with a
finding of premeditation and deliberation. (People v. Silva (2001)
25 Cal.4th 345, 369.)
Davis had multiple opportunities to reflect on whether to
shoot, or to continue shooting, at Jenkins. The surveillance
footage shows that Davis spotted Jenkins’s car as it drove past
the apartment complex. Davis then ran into the street to follow

10
Jenkins’s car. After taking several steps towards Jenkins’s car,
Davis raised his arm and fired several shots at the car. At any
time before he fired those shots, Davis could have decided not to
follow Jenkins’s car and shoot at it. After firing the initial round
of shots, Davis continued to run after Jenkins’s car. He even
followed the car as it turned down a different street and fired
several more shots at it. Davis could have decided not to
continue to follow Jenkins’s car and fire several more shots at it
as Jenkins fled the scene. This evidence further supports a
finding of premeditation and deliberation. (Morales, supra,
10 Cal.5th at p. 88.)
The People also presented evidence that Davis had a
motive to shoot Jenkins. At the time of the shooting, Davis was a
member of the 94 Hoovers, which was feuding with the
Neighborhood Crips, a gang associated with the color blue and
predominantly comprised of African American men. The
neighborhood where the shooting occurred was in 94 Hoovers
territory. The People’s gang expert testified that gang members
will try to protect their gang’s territory by shooting at “anybody
that they view as a rival gang member that is in their territory.”
When he drove past the apartment complex where Davis was
hanging out, Jenkins, an African American male, was wearing a
blue sweatshirt. Based on this evidence, the jury reasonably
could infer that Davis shot at Jenkins because he thought
Jenkins was a member of the Neighborhood Crips. (See People v.
Gonzales and Soliz (2011) 52 Cal.4th 254, 295.)
Davis argues that the jury’s premeditation and deliberation
finding must be reversed because the evidence supports a finding
that he acted impulsively and without reflection when he shot at
Jenkins. Davis points to evidence that he was exhibiting

11
symptoms of PTSD, including hypervigilance and paranoia, in
the moments leading up to the shooting. But the jury rejected
Davis’s argument that the shooting was the result of impulsive or
rash behavior caused by his PTSD. Indeed, Dr. Knapke, Davis’s
expert witness, testified that some aspects of Davis’s behavior
before and during the shooting were not consistent with someone
experiencing the symptoms of PTSD.
In any event, the fact that the evidence could support a
finding that the shooting was not premeditated does not mean
the jury’s finding must be reversed. It is well settled that where,
as here, the evidence reasonably justifies the jury’s finding, we
will not reverse that finding even if the evidence also supports a
contrary finding. (Cravens, supra, 53 Cal.4th at p. 508.)
2. Any error in excluding evidence of Jenkins’s criminal
history was harmless
Davis next contends that the trial court abused its
discretion when it excluded evidence that Jenkins was charged
with carrying a loaded firearm in public in violation of
section 25850. According to Davis, that evidence was relevant to
impeach Jenkins’s credibility because a violation of section 25850
is a crime of moral turpitude.
Before trial, Davis’s attorney asked the trial court for
permission to question witnesses about “whatever crimes of
moral turpitude we can normally ask about.” The People then
moved to exclude Jenkins’s criminal history under Evidence Code
section 352. The prosecutor noted that Jenkins had “an open
[section] 25850, which I believe is possession of unregistered
firearm either concealed or in a vehicle … I believe he’s being
diverted on that.” The trial court granted the People’s motion
because Jenkins had not been convicted of violating section 25850

12
and, in any event, it did not think the pending charge
“necessarily reflects upon the witness’s moral turpitude.”
Parties may impeach witnesses with “any prior conduct
involving moral turpitude whether or not it resulted in a felony
conviction, subject to the trial court’s exercise of discretion under
Evidence Code section 352.” (People v. Clark (2011) 52 Cal.4th
856, 931 (Clark).) When determining whether to admit evidence
of prior misconduct, the court should consider, among other
things, whether the misconduct reflects on the witness’s honesty
or veracity and whether the misconduct is near or remote in time.
(Ibid.) “Additional considerations apply when the proffered
impeachment evidence is misconduct other than a prior
conviction. This is because such misconduct generally is less
probative of immoral character or dishonesty and may involve
problems involving proof, unfair surprise, and the evaluation of
moral turpitude.” (Id. at pp. 931–932.)
Under Evidence Code section 352, a court has discretion to
exclude or limit otherwise relevant evidence “if its probative
value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Ibid.) A trial court has broad
discretion under Evidence Code section 352 to exclude even
relevant impeachment evidence. (Clark, supra, 52 Cal.4th at
p. 931.) We review a ruling that excludes evidence for abuse of
discretion. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.)
We will reverse a trial court’s order excluding evidence only when
that order “ ‘is so irrational or arbitrary that no reasonable
person could agree with it.’ ” (People v. Clark (2019)
43 Cal.App.5th 270, 292.)

13
 At the outset, we note that at least one court has held that
a violation of section 25850, the offense Jenkins was apparently
charged with, qualifies as a crime of moral turpitude. (See People
v. Bedolla (2018) 28 Cal.App.5th 535, 552–556.) However, we
need not decide whether the trial court abused its discretion in
prohibiting Davis from attempting to impeach Jenkins with
evidence of that charge because any error was harmless under
the standard established in People v. Watson (1956) 46 Cal.2d
818, 836–837. Under that standard, the erroneous exclusion of
impeachment evidence is harmless unless the defendant shows it
is reasonably probable that he would have obtained a more
favorable verdict but for the error. (See People v. Brooks (2017)
3 Cal.5th 1, 52.)
The primary disputed issue in this case was Davis’s mental
state when he shot at Jenkins. Davis testified that he shot at
Jenkins because he felt threatened by the way he perceived
Jenkins driving past the apartment complex. Specifically, Davis
testified that he saw Jenkins driving with one hand on the
steering wheel and the other hand on the center console.
According to Davis, when people drive with that posture, it often
means that a gun is near the center console and the driver has
his hand near the gun. Davis testified that due to his PTSD and
paranoia from being shot several times during a prior incident,
he likely would have shot at anyone who drove past him with
that posture. Davis claimed, however, that he shot towards
Jenkins’s car only to scare Jenkins, not to kill or otherwise injure
him. Dr. Knapke, Davis’s own witness, testified that Davis shot
at a “random stranger without any provocation whatsoever.”
During closing argument, defense counsel asked the jury to
find Davis guilty of attempted voluntary manslaughter under an

14
imperfect self-defense theory. Defense counsel argued that while
Davis subjectively believed Jenkins posed a threat when he drove
past the apartment complex, that belief was unreasonable.
Defense counsel also argued that Davis did not act with
premeditation and deliberation because the shooting was the
result of impulsive, rash, and paranoid decisionmaking caused by
his PTSD, and Davis shot towards Jenkins’s car only to scare
Jenkins, not to kill or injure him.
Nothing about Jenkins’s testimony contradicted Davis’s
theory of the case. Jenkins was never questioned about whether
he had one hand on the steering wheel and the other hand on the
center console of his car as he drove past the apartment complex.
Jenkins testified that he was never a member of any gangs and
that when he drove past the apartment complex, he was wearing
a blue sweatshirt, he did not have a gun, he did not make any
threatening gestures or comments, he did not have any prior
disputes with Davis, and he did not stop or slow down his car.
Surveillance footage corroborated the last portion of Jenkins’s
testimony, as it showed his car drive past the apartment complex
without slowing down or stopping. In addition, neither Davis nor
any witness testified that Jenkins was a gang member, that
Jenkins was armed or otherwise had a gun in his car, that Davis
had any prior disputes with Jenkins, or that Jenkins made any
threatening remarks or gestures as he drove past the apartment
complex.
In short, the primary issue in this case—Davis’s mental
state when he shot at Jenkins—did not turn on the credibility of
Jenkins’s testimony. Indeed, Jenkins’s testimony was consistent
with Davis’s theory of imperfect self-defense—i.e., that Davis
overreacted to Jenkins driving past the apartment complex and

15
fired at him without provocation. It is not reasonably probable,
therefore, that Davis would have obtained a more favorable
result had he been allowed to impeach Jenkins with evidence
that Jenkins had been charged with a violation of section 25850.
3. The trial court did not abuse its discretion when it
imposed a middle term sentence
Davis next contends that the trial court abused its
discretion under section 1170, subdivision (b)(6), when it did not
impose low terms for counts 2 and 4. He first argues that
nothing in the record indicates that the trial court was aware of,
or otherwise considered, the low term presumption before it
sentenced him. To the extent the court did consider section 1170,
subdivision (b)(6), Davis argues it abused its discretion when it
imposed the middle, and not the low, terms for counts 2 and 4.
As we explain, these arguments lack merit.
3.1. Applicable law and standard of review
Effective January 1, 2022, Senate Bill No. 567 (2021–2022
Reg. Sess.) amended section 1170, subdivision (b)(6), which now
provides that courts shall impose the low term if, among other
things, the defendant was a youth as defined in section 1016.7,
subdivision (b), when he committed the underlying offense or has
experienced psychological, physical, or childhood trauma, and
that his youth or experienced trauma was a contributing factor in
the commission of the underlying offense. (§ 1170, subd. (b)(6).)
The court may impose a sentence higher than the lower term if it
“finds that the aggravating circumstances outweigh the
mitigating circumstances [such] that imposition of the lower term
would be contrary to the interests of justice.” (Ibid.) “[T]he mere
fact a defendant is young or has suffered past trauma is
insufficient—either or both must be ‘a contributing factor in the

16
commission of the offense’ for the low term presumption to
apply.” (People v. Knowles (2024) 105 Cal.App.5th 757, 765
(Knowles).)
We review a trial court’s sentencing decisions for abuse of
discretion. (Knowles, supra, 105 Cal.App.5th at p. 764.) The
court generally has wide discretion to select an appropriate
sentence while weighing aggravating and mitigating factors.
(People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A court
abuses its discretion when it acts arbitrarily and capriciously,
relies on improper matters, or is unaware of the scope of its
discretion such that it does not exercise its discretion at all.
(Knowles, at p. 765.)
When reviewing a trial court’s sentencing decision, we
presume the court considered all relevant laws and factors.
(Knowles, supra, 105 Cal.App.5th at p. 765.) The party
challenging the sentence carries the burden “ ‘ “to clearly show
that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ ” (People v.
Carmony (2004) 33 Cal.4th 367, 376–377.)
3.2. Relevant background
After trial, the People filed a sentencing memorandum.
Relevant here, the People pointed out that under section 1170,
subdivision (b)(6), the trial court was required to impose the low
term if any of the factors listed in that statute contributed to the
commission of Davis’s offenses, unless the court found that the
aggravating circumstances outweighed the mitigating
circumstances such that imposition of the low term would be

17
contrary to the interests of justice. The People also pointed out
that Davis was defined as a youth for purposes of the statute at
the time he committed the underlying offenses. The People
argued that the aggravating circumstances outweighed any
mitigating circumstances such that imposition of the low term
would be contrary to the interests of justice.
In December 2023, the trial court held the sentencing
hearing. At the outset, the court conducted a bench trial on the
aggravating sentencing factors. The court took judicial notice of
the evidence that was admitted at trial. The court found true the
following aggravating sentencing factors: (1) the crimes involved
great violence and threat of bodily harm (Cal. Rules of Court,
rule 4.421(a)(1)); (2) Davis was armed with a weapon during the
commission of the crimes (Cal. Rules of Court, rule 4.421(a)(2));
(3) Davis engaged in violent conduct (Cal. Rules of Court,
rule 4.421(b)(1)); (4) Davis suffered a prior conviction (Cal. Rules
of Court, rule 4.421(b)(2)); (5) Davis committed the crimes while
on probation (Cal. Rules of Court, rule 4.421(b)(4)); and
(6) Davis’s performance on probation was unsatisfactory (Cal.
Rules of Court, rule 4.421(b)(5)).
The trial court then proceeded to sentencing. The court
stated that it read the People’s sentencing memorandum,
considered the parties’ arguments, and considered the pre-plea
probation report. The court explained it had presided over the
entire trial and considered all the aggravating sentencing factors
that it earlier found true. The court noted that Davis engaged in
violent conduct by firing his gun multiple times at an occupied
vehicle and that Jenkins was fortunate that he was not struck by
any of the bullets. The court stated that it did not intend to

18
impose the “how term,”3 but that it had considered “the points
that counsel has raised.”
As to count 1, the trial court sentenced Davis to seven years
to life for attempted murder, plus the middle term of four years
for the firearm enhancement. For count 2, the court sentenced
Davis to a consecutive eight-month term, or one-third of the
middle term for that count. As to count 4, the court imposed but
stayed under section 654 a total term of 10 years, consisting of
the middle term of six years for assault with a semiautomatic
firearm plus the middle term of four years for the firearm
enhancement.
3.3. The trial court did not abuse its discretion when
it imposed middle terms for Davis’s convictions
At the outset, we reject Davis’s argument that the trial
court abused its discretion by failing to consider the low term
presumption under section 1170, subdivision (b). Although the
trial court did not expressly reference the presumption or the
factors that trigger it, such as Davis’s youth or the childhood and
psychological trauma that he suffered before he committed the
crimes in this case, nothing in the record shows that the court
was unaware of, or failed to apply, the presumption. Indeed, by
the time the court held the sentencing hearing in this case, the
low term presumption had been in effect for nearly two years.
Unless the record shows otherwise, we generally presume the

3 There are numerous typos in the reporter’s transcript from
the sentencing hearing. While stating why it selected the middle
term, the court stated it “would not impose the how term.”
(Italics added.) As we explain below, the context surrounding
this quote indicates that the court stated, or intended to state,
that it would not impose the low term.

19
trial court was aware of applicable law when it sentences the
defendant. (People v. Gutierrez (2009) 174 Cal.App.4th 515, 527.)
Other parts of the record indicate the trial court considered
the low term presumption. For instance, when it pronounced
Davis’s sentence, the court stated that it did not intend to
“impose the how term,” but it was “listening and considering the
points that counsel has raised.” (Italics added.) As we noted
above, the reporter’s transcript from the sentencing hearing
contains numerous typos. Based on the context in which the
court stated that it did not intend to impose the “how term,” it
appears the court actually said, or at least intended to say, that it
did not intend to impose the low term. Indeed, immediately
before it made this statement, the court discussed the violent
nature of the offenses in this case and other aggravating
sentencing factors, and it then explained that instead of imposing
a “how term,” it was imposing middle terms for the firearm
enhancements and the substantive offenses in counts 2 and 4.
(See § 1170, subd. (b)(6) [court may impose middle, as opposed to
low, term if it finds that the “aggravating circumstances
outweigh the mitigating circumstances [such] that imposition of
the lower term would be contrary to the interests of justice”].)
In addition, the People cited to section 1170, subdivision
(b)(6), and discussed the low term presumption in their
sentencing memorandum. The People also pointed out that at
least one of the triggering mitigating factors—i.e., Davis’s
youth—was present in this case. Before it pronounced Davis’s
sentence, the court stated that it read the People’s sentencing
memorandum. This further indicates that the court was aware
of, and applied, the low term presumption under section 1170,
subdivision (b)(6), when it sentenced Davis. Because the record

20
does not affirmatively show that the trial court was unaware of
its obligation to consider the low term presumption, we must
presume that the court considered that presumption and found
the low term was not appropriate under section 1170, subdivision
(b)(6) when it sentenced Davis. (Knowles, supra, 105 Cal.App.5th
at p. 765.)
We also conclude that the trial court did not abuse its
discretion when it decided not to impose any low terms. To be
sure, Davis presented evidence that he suffered childhood trauma
and was only 20 years old when he committed the offenses in this
case. (See § 1170, subd. (b)(6).) Davis also presented evidence
that he suffered from PTSD when he committed those offenses.
(Ibid.) Nevertheless, the record supports the trial court’s decision
to impose middle, as opposed to low, terms for Davis’s
convictions.
The court found true six aggravating sentencing factors in
this case, including that the crimes involved great violence and
the threat of bodily harm and that Davis was armed with a
weapon during the commission of the underlying offenses. The
court also found that Davis had committed several crimes while
on probation and that his performance on probation was
unsatisfactory. When the court explained its sentencing decision,
it discussed the violent and dangerous nature of the offense,
noting that Davis fired a gun multiple times at an occupied
vehicle and that Jenkins was fortunate that he was not struck by
the shots. On this record, the trial court reasonably could have
found that the aggravating factors outweighed any mitigating
circumstances such that imposing a low term sentence would be
contrary to the interests of justice. We therefore cannot conclude

21
the court abused its discretion when it decided not to impose a
low term sentence.
4. Claims of ineffective assistance of counsel
A different attorney represented Davis at sentencing than
the one who represented him at trial. Davis argues the attorney
who represented him at sentencing provided ineffective
assistance because the attorney appeared not to have reviewed
evidence about Davis’s childhood trauma and mental health
issues before the sentencing hearing, did not argue for imposition
of a low term sentence, did not inform the court of its obligations
under section 1170, subdivision (b)(6), and did not remind the
court to schedule a hearing under People v. Franklin (2016)
63 Cal.4th 261 (Franklin). For the reasons discussed below, we
reject Davis’s claims of ineffective assistance of counsel.
4.1. Relevant legal principles
“To establish ineffective assistance of counsel, a defendant
must show that (1) counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient performance was
prejudicial.” (People v. Scott (1997) 15 Cal.4th 1188, 1211 (Scott);
Strickland v. Washington (1984) 466 U.S. 668, 687.) Courts defer
to an attorney’s reasonable tactical decisions and presume that
the attorney acted within the wide range of reasonable
professional assistance. (People v. Mai (2013) 57 Cal.4th 986,
1009.) On direct appeal, an attorney’s performance will be found
to be deficient “only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.”
(Ibid.)

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 Prejudice is shown when there is a reasonable probability
that but for counsel’s error or omission the result of the
proceeding would have been different. “ ‘A reasonable probability
is [one] … sufficient to undermine confidence in the outcome.’ ”
(Scott, supra, 15 Cal.4th at pp. 1211–1212.) “It is not sufficient to
show the alleged errors may have had some conceivable effect on
the trial’s outcome; the defendant must demonstrate a
‘reasonable probability’ that absent the errors the result would
have been different.” (People v. Mesa (2006) 144 Cal.App.4th
1000, 1008.)
4.2. Failure to argue for imposition of a low term
sentence
Even assuming the attorney who represented Davis at
sentencing provided deficient assistance by failing to argue for
imposition of a low term sentence, Davis cannot show that
performance was prejudicial. As we discussed above, the trial
court acknowledged at sentencing that it had presided over trial
and was familiar with the evidence, and that it reviewed the
People’s sentencing memoranda. As we already explained,
nothing in the record suggests that the court was not aware of
the low term presumption and did not apply it before sentencing
Davis. Further, the trial court found true six aggravating
sentencing factors, and it noted the serious and violent nature of
the offenses when it explained why it was imposing middle terms.
Davis points to no new mitigating evidence that his attorney
could have presented that would have made it more likely for the
court to impose a low term sentence. Davis has, therefore, not
shown it is reasonably probable that he would have received a
more favorable outcome had his attorney argued for imposition of

23
a low term sentence or otherwise objected to imposition of a
middle term sentence.
4.3. Failure to remind the trial court to schedule a
Franklin hearing
Shortly after the jury gave its verdict and was excused, the
trial court and counsel for both parties discussed scheduling a
bench trial on the aggravating sentencing factors and the
sentencing hearing. The attorney who represented Davis
throughout trial (but not at the sentencing hearing) told the
court, “this is one where I think I have to do a Franklin.” After
Davis’s attorney asked the court if it agreed, the court responded,
“Yes. You should have that opportunity, yes.” Davis’s attorney
then asked the court to schedule sentencing and a Franklin
hearing for late September 2023, if the attorney was “ready with
the Franklin by then.”
The court and the parties never discussed again whether
Davis was entitled to a Franklin hearing, and the court never
held such a hearing. Davis now argues that the attorney who
represented him at the sentencing hearing provided deficient
assistance by failing to “remind the court to set a date for the
Franklin hearing.”
Section 3051, subdivision (a)(1), provides for a “youth
offender parole hearing” by the Board of Parole Hearings “for the
purpose of reviewing the parole suitability of any prisoner who
was 25 years of age or younger … at the time of the controlling
offense.” If the defendant, like Davis in this case, is convicted of
a controlling offense “when the person was 25 years of age or
younger and for which the sentence is a life term of less than 25
years to life,” that person “shall be eligible for release on parole at
a youth offender parole hearing during the person’s 20th year of

24
incarceration. The youth parole eligible date for a person eligible
for a youth offender parole hearing under this paragraph shall be
the first day of the person’s 20th year of incarceration.” (Id.,
subd. (b)(2).)
A Franklin hearing “provides the parties an opportunity ‘to
make an accurate record of the juvenile offender’s characteristics
and circumstances at the time of the offense so that the Board,
years later, may properly discharge its obligation to “give great
weight to” youth-related factors [citation] in determining whether
the offender is “fit to rejoin society” despite having committed a
serious crime “while he was a child in the eyes of the law.” ’
[Citation.] For youth offenders, the Board … must consider
youth-related factors at all parole hearings, not just youth
offender parole hearings.” (People v. Howard (2021)
74 Cal.App.5th 141, 147.)
The record does not show why the attorney who
represented Davis at sentencing did not remind the trial court to
schedule a Franklin hearing. The attorney could have reviewed
the record prior to the sentencing hearing and determined that
there was no new, noncumulative evidence of mitigating “youth-
related factors” that would “meaningfully add[] to the already
available record.” (In re Cook (2019) 7 Cal.5th 439, 459; see also
ibid. [“the trial court may ‘exercise its discretion to conduct [the
Franklin] process efficiently, ensuring that the information
introduced is relevant, noncumulative, and otherwise in accord
with the governing rules, statutes, and regulations’ ”].) Indeed,
Davis does not assert that his attorney could have presented any
noncumulative evidence relevant to youth-related factors at a
Franklin hearing. Because Davis has not pointed to any
“affirmative evidence that counsel could have had ‘no rational

25
tactical purpose’ ” for not reminding the court to schedule a
Franklin hearing, Davis “has not demonstrated constitutionally
deficient performance on this record.” (People v. Mickel (2016)
2 Cal.5th 181, 200.)
DISPOSITION
The judgment is affirmed.

VIRAMONTES, J.

WE CONCUR:

WILEY, Acting P. J.

SCHERB, J.

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