People v. Castrillo

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ELIAS CASTRILLO, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Nov 14, 2019

No. F076693 (Cal. Ct. App. Nov. 14, 2019)

Opinion

F076693

11-14-2019

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ELIAS CASTRILLO, Defendant and Appellant.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Galen N. Farris, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

POOCHIGIAN, Acting P.J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Merced Super. Ct. No. 15-CR00224A)

OPINION

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, Galen N. Farris, Amanda D. Cary, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Dean Barker was fatally shot in the head while working as a taxi driver in Merced. The investigation led to appellant/defendant Joseph Elias Castrillo and Dante Woods as the two men who were in his cab when he was killed. Defendant denied being in the cab or having any involving in Barker's death. Woods admitted that defendant shot Barker when Barker asked if they had the fare for the ride. Other associates of defendant and Woods reported that defendant admitted he shot the cab driver.

Woods pleaded guilty to voluntary manslaughter and was sentenced to 11 years; he agreed to testify against defendant at trial.

Defendant was convicted of first degree premeditated murder with a firearm enhancement and sentenced to 50 years to life.

On appeal, defendant contends the prosecutor committed prejudicial misconduct during voir dire and closing argument by misstating the legal standard for premeditation; he concedes that his attorney did not object but asserts counsel was prejudicially ineffective for failing to do so.

Defendant further argues the trial court should have instructed the jury with the unanimity instruction as to which theory of first degree murder it agreed upon for the conviction.

Defendant also argues the matter must be remanded for the court to determine whether it would dismiss the firearm enhancement pursuant to subsequently-enacted legislation, and for a youthful offender hearing since he was 18 years old at the time of the crime.

We are compelled to remand the matter for the court to address the firearm enhancement and conduct the youthful offender hearing, but otherwise affirm defendant's conviction and the jury's true finding on the firearm enhancement.

FACTS

Dean Barker drove a cab for Merced Taxi. Kenneth Davis, who drove a cab for the same company, testified Barker was a popular driver. In situations where an individual did not have the fare, Barker would act very professional and get the person to agree to pay him on a later date. As long as the person kept that promise, Barker would continue to pick up that person for a ride.

Barker and Davis used retired police vehicles as their taxis. The rear doors could not be opened from the inside.

On Sunday, January 4, 2015, Barker and Davis were the only cab drivers who worked the 12-hour shift that started at 6:00 p.m.

At 11:22 p.m., Davis was driving a customer in his cab when he received a call that was routed from the taxi company's line to his cell phone. The caller requested a ride from an address on Bea Drive to The Commons apartment complex. The fare for that distance would be $15 to $16.¹

1 Detective Johnson testified defendant's grandmother lived on Colton Court, which was adjacent to Bea Drive.

Davis testified the caller sounded young, and he thought he heard a couple of voices on the line. Davis did not recognize the callers' voices or the telephone number.

Davis had previously picked up defendant several times for cab rides, the most recent being six weeks before Barker's murder. Davis never had any problems with defendant. Davis also knew Dante Woods and had given him a couple of rides. If Davis had thought defendant was the caller, he would have taken the fare that night.

Davis testified that since he already had a customer, he called Barker for the job. Barker replied he also had a customer so there would be a delay. While Davis continued with his fare, the same person who wanted the ride from Bea Drive called a few more times. Davis dropped off his fare and was about to head to Bea Drive when Barker called and said he was on the way and would take care of the call. Davis never received another call from Barker that night. The murder

Around 12:30 a.m. on January 5, 2015, Jose Perez, Jr. and his family were in their apartment located in The Commons apartment complex. Perez and his mother heard two to three gunshots. Perez looked outside from a second floor window. He saw two men standing next to a taxi cab in the parking lot. They were wearing black sweatshirts with hoods over their heads. One man was standing next to the open driver's door, and the other man was standing next to the open front passenger door. Perez could not see the men's faces or the cab driver. The taxi's headlights and red taillights were on.

Perez believed the two men were robbing the cab driver because they were "leaning inside the [taxi]," and "going through" or "digging through stuff." A minute or two later, the two men ran away toward R Street.

Perez's mother called 911. She reported that a taxicab had pulled into the parking lot, "he just got shot," and two men ran away. In the background, Perez told his mother the men were wearing "black hoodies," and the cab's lights were still on. Perez's mother handed the telephone to Perez, who told the operator the men were wearing dark clothes and appeared about six feet tall.

Officers Gallegos and McKinnon arrived in the parking lot within minutes of the dispatch. Both officers saw the taxi cab, but the suspects were gone. Both the front and back doors on the driver's side were open; the passenger side doors were not open.

The officers found Barker, the taxi driver, slumped over in the driver's seat of his taxi cab. Barker was dead; he had been shot in the head. Barker's body was leaning toward the right side, and his left leg was hanging out of the driver's door. There was blood all over the front seat. When emergency personnel removed Barker's body from the driver's seat, the cab started to roll forward, and they realized his foot had been pressed against the brake when he was shot.² The fatal wounds

2 The People never introduced any evidence that money or property had been stolen from Barker or taken from the cab.

The forensic pathologist testified Barker had been shot in the back of his head three times. There was some gunpower stippling behind Barker's left ear and on the back of his scalp. The pathologist determined all three wounds were fired from the "intermediate" range, which meant the gun was between a few feet to within several inches of his head. The shots were fired from a fairly low point below the left side of the victim's head, with an upwards and back-to-front trajectory. One of the bullets passed through and exited his head. There was blood on the victim's hands, mostly likely from the exit wound in front of his head. Each wound would have been fatal.

The officers did not find any bullet casings at the homicide scene and testified the absence of casings would be consistent with a revolver.

A senior criminalist examined the intact bullet and bullet fragments recovered from the victim's head. He believed the ammunition could have been fired from either a revolver or a semiautomatic, perhaps a .38 special or a .357 Magnum.

Albert Flores, a senior investigator with the district attorney's office, testified as a firearms expert. In his opinion, the gunman used a revolver based on the bullets recovered from the victim's body and the absence of any casings at the scene. The amount of pressure needed to pull the triggers of both a .38-caliber revolver and .357-caliber revolver was in the three- to five-pound range in single action mode, and 10- to 12-pound range in double action mode. Most modern pistols are double-action. The expert testified to his opinion that discharging a .357- caliber revolver would be a deliberate act for both single and double action weapons and could not be accidental.

The firearm used to kill Barker was never recovered.

THE INVESTIGATION

Arrest of defendant

When the officers searched the taxi cab that night, they found a clipboard on the dashboard directly above the steering wheel. There were several papers affixed to the clipboard. A telephone number had been written on the top page.

On January 14, 2015, police officers tracked defendant to the home of his girlfriend, Janessa Alves. A SWAT team entered the residence and arrested defendant. Alves was present, but she was not arrested. Defendant's pretrial statements

Also, on January 14, 2015, Detective Johnson conducted a videotaped interview with defendant at the police station and advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant agreed to answer questions and said he was 18 years old.

In response to Detective Johnson's questions, defendant denied being in a taxi cab on the night of the homicide. Defendant said he knew a taxi driver was killed because everyone was talking about it, but he did not know what happened and was not involved. Defendant repeatedly said Johnson was talking to the wrong person, and he had not been in a taxi cab for four or five months.

Detective Johnson asked defendant about the telephone number written on the taxi driver's clipboard. Defendant said he borrowed the cell phone with that number from Gabriella Alcaraz, a relative who was a "tweaker." He used it for about one month and then lost it. Johnson told defendant that the taxi driver picked up the passengers at a house two doors from where he lived with his grandmother on Colton Court. Defendant said he was not living there because his grandmother did not want him around anymore.

When asked for his whereabouts on the night of the homicide, defendant said he was at his girlfriend's house, or at "Nacho's" house on Beachwood, or at "Sal's" house; he did not provide specific addresses for Nacho and/or Sal.

Defendant said he had an outstanding bench warrant for a juvenile matter and asked if he was going to juvenile hall. Detective Johnson replied that he was over 18 years old, was going to be charged with murder, and would be placed in jail. Pretrial interview of Alves

On the same day that defendant was arrested, Detective Johnson interviewed Janessa Alves. Alves "confirmed" the telephone number on Barker's clipboard belonged to a cell phone that defendant was using at the time.

Alves said she knew defendant had been in the taxi cab on the night of the homicide, because she talked to him on the phone, and he said "they had taken a taxi from Beachwood to Dead End." Alves said she kept "hounding" defendant about who he was with, and he said he was with his "black friend."³ Alves said that every time she asked defendant what happened the night he took the taxi, defendant told her to check the news. Alves said she later read the newspaper story that a taxi driver had been murdered.⁴ Pretrial statements of Dante Woods

3 Woods is African-American.

4 At trial, Alves testified she could not remember most of her prior statements to Detective Johnson.

As the investigation continued, a sheriff's deputy advised Detective Johnson that Dante Woods might have information about the homicide of the taxi driver.

On January 20, 2015, a detective located Woods, who agreed to be interviewed at the police station. He was not under arrest.

Woods initially gave an alibi and denied knowing anything about the shooting or the cab driver. However, Woods eventually admitted that he was inside the taxi when defendant shot Barker. Woods cried as he described what happened. Woods said he climbed over Barker's body to open the car door and helped defendant get out of the cab. Woods said they fled to Destini Alcaraz's apartment after the shooting.⁵

5 Alcaraz had been in a relationship with defendant's father, and defendant referred to her as his stepmother. Her sister was Gabriella Alcaraz, the person who defendant described as a family member and "tweaker." Defendant admitted the cell phone number written on Barker's clipboard, that was used to call for the cab, belonged to Gabriella. Defendant admitted he had borrowed that cell phone but claimed to have lost it.

Woods said there was blood on his arms and pants. Woods said Alcaraz gave him clean clothes, and he threw away the bloody clothes he had been wearing. However, Woods said he kept his shoes and was wearing the same shoes at the time of the interview that he wore the night of the murder.

Woods said he was relieved to get the story off his chest. Woods apologized and wrote a letter of apology to Barker's family.

After the interview, Woods was arrested and charged with the murder of Barker.

Woods later agreed to plead guilty to voluntary manslaughter for a sentence of 11 years, in exchange for his truthful testimony as to what happened on the night of the homicide. Alcaraz's pretrial statements

On January 22, 2015, Detective Johnson went to Destini Alcaraz's apartment on R Street. Johnson found a newspaper article in her bedroom about the shooting of the taxi driver. Johnson asked Alcaraz, "[I]s the gun here in the house?" She hesitated, said no, and then went into a closet. Alcaraz pulled out a pair of stained jeans. She said the jeans belonged to defendant, and he had worn them the night of the shooting.

A reddish stain on the pants tested presumptively positive for blood.

Alcaraz agreed to go to the police station to give an interview. During that interview, Alcaraz said defendant and Woods arrived at her apartment around midnight. She said defendant was " 'as white as a ghost.' " Defendant said he had been in an altercation and might have shot someone. Defendant asked Alcaraz if Woods could take a shower. Defendant told Woods to change his clothes. Alcaraz saw blood on Woods's shoes. She gave defendant clean clothes and shoes; he took a shower and put on the clean clothes and shoes.

Alcaraz said defendant and Woods slept in the living room. Alcaraz's boyfriend arrived a few hours later, and everyone got up and smoked marijuana together. Alcaraz asked defendant about the shooting. Defendant said he did it, but he did not mean to. Alcaraz said she had seen defendant with a gun about a week earlier, but she did not see a gun that night.

Alcaraz was not arrested or charged in this case.

TRIAL EVIDENCE

Woods's trial testimony

At defendant's trial, Woods testified for the People pursuant to his plea agreement.⁶ The jury was advised that Woods pleaded no contest to felony manslaughter for an 11-year sentence if he testified truthfully about the homicide. Woods had already testified at defendant's preliminary hearing.⁷

6 On June 10, 2016, prior to defendant's trial, Woods pleaded no contest to voluntary manslaughter (§ 192, subd. (a)) and was sentenced to 11 years in prison.

7 The jury was instructed with CALCRIM No. 335, that if the crimes of murder or robbery were committed, that Woods was an accomplice, an accomplice's testimony should be viewed with caution, and defendant could not be convicted of murder solely based on an accomplice's testimony unless supported by slight independent corroboration.

Woods testified he had known defendant for one or two years. Defendant's nickname was "Filthy."

In the late evening of January 4, 2015, Woods went to the home of defendant's grandmother on Colton Court, where defendant lived. Defendant and Woods decided "to go drink up" at the Dead End Store on Childs. Woods was under the age of 21 years but assumed there would be people at the store who already had alcoholic beverages that he could drink.

Defendant and Woods did not have a car, so they decided to call a taxi cab. Woods used defendant's cell phone and called the cab company. Woods had $5, and he thought it was enough to get across town. He did not know if defendant had any money.

When Woods called for the taxi, he told the driver to pick them up at an address on Bea Drive, a short distance away from their location, and said they wanted to go to the Dead End Store. Woods did not ask for a specific driver. Woods called back a couple of times because they had to wait.⁸

8 Davis, Barker's colleague, testified that the initial call was for a cab ride from Bea Drive to The Commons apartment complex. However, Woods testified that he made the call and asked for a ride to the Dead End Store, and defendant changed the destination while Barker was driving.

The taxi cab eventually arrived, and they got in. Woods testified he had never been in a cab with defendant before that night. Woods did not recognize the cab driver. However, Woods knew Barker from a prior incident when Barker gave Woods a free taxi ride because Woods was being chased by enemies.

Woods got in the rear passenger seat and defendant sat in the rear driver's seat, directly behind Barker. Barker asked if they had money for the ride. Woods said yes. As Barker drove to the Dead End Store, defendant told him to drive instead to The Commons apartment complex, which was near the store.

Barker pulled into the parking lot of The Commons and stopped the cab. Barker again asked if they had any money. Woods said yes. Barker said, " '[I]f you guys don't, I'm calling the police.' " Woods testified he reached into his pocket to get his money.

Woods testified defendant suddenly produced a black-handled revolver from the right side of his waistband, held it in his right hand, and "slapped" Barker in the face with it. Woods did not know that defendant had a gun.

Woods testified that Barker made some noise, grabbed his face, and tilted over. Woods testified he was disgusted by defendant's behavior and turned his head to look out the rear passenger window.

Woods testified that within a few seconds, defendant fired one shot into Barker's head, followed by a second shot, and then a third shot. Barker slumped to the side. Defendant did not say anything before or during the shooting.

Woods testified he had no idea defendant had a gun, or that he was going to hit and then shoot the cab driver. Woods was shocked and stunned when defendant shot Barker. Defendant told Woods to help him get out of the cab because the back doors were locked. Woods climbed over the front seat and tried to open the front passenger door, but he could not do it. Woods realized Barker was slumped over and not moving.

Woods got out of the front driver's door and opened the back door for defendant. Woods testified they did not check on Barker's condition, and they did not go through his property or search the taxi cab.

Defendant and Woods ran away from the taxi cab, and defendant told Woods to follow him. They heard sirens as they ran away. Defendant led him to an apartment on R Street and entered an unlocked door. There were several people asleep in the apartment, and then a woman walked into the front room. Woods had never been to the apartment and he did not know the woman; she was later identified as Destini Alcaraz. The apartment was about two minutes away from the shooting scene.

Woods testified that Alcaraz asked them what happened. Woods did not reply. Defendant said he "shot someone" and seemed to brag about it. Woods told defendant to shut up. Defendant said it was going to be alright and told Woods to keep his mouth shut.

Woods realized there was a lot of blood on his clothes and white Nike shoes. He asked Alcaraz if he could take a shower and she said yes. After the shower, Alcaraz gave him a clean shirt, pants, and Converse tennis shoes. She also gave him a trash bag for his bloody clothes and shoes. He briefly left the apartment and threw the bag into a nearby dumpster.

On cross-examination, however, Woods testified he only threw away his clothes, Alcaraz never gave him a pair of Converse shoes, he kept his white Nike shoes and cleaned them, and he was wearing the same Nike shoes when he was questioned by Detective Johnson.

Woods went back into the apartment after he threw out the clothes. Defendant kept saying he had shot someone. Alcaraz laughed and told defendant he was crazy.

Defendant and Woods slept there that night until Alcaraz's boyfriend arrived. Woods testified defendant told the boyfriend that he shot someone with a chrome, .357-caliber gun. Woods told defendant to shut up, but defendant said they could trust the boyfriend. The boyfriend left, and Woods went back to sleep.

In the morning, Alcaraz argued with her sister about everyone running in and out of the apartment that night. The argument turned into a physical altercation between the sisters. Someone else in the apartment talked about calling the police. Woods decided to leave and walked to his girlfriend's apartment. He did not tell her what happened.

Woods testified he spoke to defendant later that day. Defendant said people had heard about the shooting and were talking about it. Woods also heard about the shooting on the local news, and his friends asked if he had been in the cab. Woods later told a friend he had been in the taxi cab and asked that friend to provide an alibi for him.

A few days after the shooting, Woods learned defendant was arrested. He thought about coming forward since he was not the gunman, but he feared retaliation if he talked to the police.

Woods testified he later agreed to talk to Detective Johnson. He initially denied any involvement in the shooting and used his false alibi. Woods eventually told Johnson what happened but left out Alcaraz's role. Woods falsely claimed they slept in a field that night, and that he threw away his clothes in a dumpster by a school. Alcaraz's trial testimony

Alcaraz testified that defendant's father had been her boyfriend. Defendant was a half brother to her children. She no longer lived with defendant's father but occasionally saw defendant.⁹

9 Alcaraz testified under a grant of use immunity.

Alcaraz lived on R Street, a few blocks from The Commons apartments. Alcaraz testified defendant arrived at her apartment around midnight with a friend. She did not know the friend, later identified as Woods. Alcaraz asked defendant what he was doing there. Defendant said he had been in a fight. Alcaraz testified defendant looked as " 'white as a ghost.' "

Defendant told Woods to change his clothes. Defendant asked Alcaraz if Woods could take a shower, and she said yes. There was some blood on Woods's shoes. Woods took a shower, and Alcaraz gave him a clean shirt and shoes, but not any pants. Woods put his shirt and shoes in a trash bag and briefly left the apartment.

Alcaraz's sister, Gabriella, had been at the apartment when defendant arrived. Once he got there, however, Gabriella and her boyfriend left for the night.

Alcaraz testified she again asked what happened. Defendant said he shot a taxi driver. Defendant said he had planned to jump out of the taxi cab, so they did not have to pay the driver. The driver thought they were going to rob him and said he was going to call the police. Defendant said he pulled out his gun and hit the taxi driver in the head, but the trigger went off and it was an accident. Alcaraz testified Woods looked shocked that defendant made these statements. Defendant assured Woods that it was okay because Alcaraz was his stepmother. Defendant also said he was using a cell phone that he had borrowed from Alcaraz's sister, Gabriella.

Alcaraz testified her boyfriend arrived later in the night. Defendant told the boyfriend about the shooting and seemed to brag about it.

Alcaraz testified that the next morning, Gabriella returned to the apartment. Gabriella was upset that defendant had been at the apartment that night, and they argued. Gabriella said something about calling the police, and Woods left the apartment. Defendant left later in the morning. He gave his bloody jeans to Alcaraz and asked her to wash them. She put them in her closet instead. Alcaraz testified defendant later returned to her apartment, and she told him he had to stay away.

THE CHARGES AND INSTRUCTIONS

Defendant was charged and tried for murder, with the special allegation that he personally and intentionally discharged a firearm which proximately caused death (§ 12022.53, subds. (d), (e)(1)).¹⁰

10 All further statutory references are to the Penal Code unless otherwise stated.

The jury was instructed about the elements of murder, express and implied malice; first degree premeditated murder, first degree felony murder based on defendant's intent to commit robbery or attempted robbery, and second degree murder as a lesser included offense of first degree murder.¹¹ Conviction and sentence

11 The court overruled defendant's objection to the felony-murder instruction, and found the instruction was supported by substantial evidence because defendant and Woods summoned a taxi to a location not associated with them; they did not have sufficient funds to pay for the ride; and the witness in the apartment saw them going through the taxi after hearing the gunshots.

After a jury trial, defendant was convicted on August 31, 2017, of first degree premediated murder, and the firearm enhancement was found true.

On November 1, 2017, the court sentenced defendant to an aggregate term of 50 years to life in state prison: 25 years to life for count 1, first degree premeditated murder, plus a consecutive term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d)).

The court ordered defendant to pay restitution of $6,202.23 to the victim compensation board; a restitution fine of $10,000 (§ 1202.4, subd. (b)); a court security assessment fee of $40 (§ 1465.8), and a criminal conviction assessment of $30 (Gov. Code, § 70373).

On December 6, 2017, defendant filed a notice of appeal.

On January 3, 2018, the court held another hearing and stated it would reserve jurisdiction for further victim restitution.

DISCUSSION

I. Prosecutorial Misconduct; Premeditation

During voir dire, the prosecutor who questioned the prospective jurors used various examples about the short period of time required to form premeditation and deliberation. In closing argument, the prosecutor who conducted the trial referred to some of those examples when she addressed the legal definition of premeditation.

Defendant contends the prosecutor committed misconduct and misstated the law by using these examples to illustrate the period of time required to form premeditation and deliberation. Defendant concedes defense counsel did not object to these alleged misstatements and that a curative instruction would have corrected the alleged errors.

In the alternative, defendant argues defense counsel was ineffective for failing to raise the objection, and the error was prejudicial because it likely led to the jury's finding that he was guilty of first degree murder.

We review the applicable law and then address the statements by the prosecutors in this case at voir dire and in closing argument.

A. Prosecutorial Misconduct

"A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact. [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 711; People v. Rangel (2016) 62 Cal.4th 1192, 1219.)

"When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citations.]" (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).) The court must consider the challenged statements in the context of the argument as a whole to make its determination. (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.)

A determination of bad faith or wrongful intent by the prosecutor is not required to establish prosecutorial misconduct in argument to the jury. (People v. Hill (1998) 17 Cal.4th 800, 822-823 & fn. 1, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Crew (2003) 31 Cal.4th 822, 839.) "[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)

B. Forfeiture

It is improper for the prosecutor to misstate the law. (People v. Cortez (2016) 63 Cal.4th 101, 130.) However, "[a] prosecutor's misstatements of law are generally curable by an admonition from the court. [Citation.]" (Centeno, supra, 60 Cal.4th at p. 674.)

"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion - and on the same ground - the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) "The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (Centeno, supra, 60 Cal.4th at p. 674.)

Defense counsel did not object to the comments and examples made by the prosecutor who conducted voir dire. Counsel did not object to the portion of closing argument where the prosecutor allegedly misstated the law. There is nothing in the record to show an objection would have been futile and defendant concedes that an admonition would have cured the alleged error. Counsel's failure to object thus forfeits defendant's misconduct claim. (People v. Cunningham (2001) 25 Cal.4th 926, 1000; People v. Cain (1995) 10 Cal.4th 1, 48.)

C. Ineffective Assistance

In the alternative, defendant asserts counsel was prejudicially ineffective for failing to object to the three claims of misconduct that he now raises on appeal. " 'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.' [Citation.] ... [The defendant] bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice. [Citations.]" (Centeno, supra, 60 Cal.4th at p. 674, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)

D. Premeditation and Deliberation

Defendant claims the prosecutor misstated the law and misled the jury about premeditation and deliberation during the voir dire questions and closing argument. We begin with a review of the applicable legal principles.

"A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

"The process of premeditation and deliberation does not require any extended period of time. '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 ....' [Citations.]" (People v. Mayfield (1997) 14 Cal.4th 668, 767, overruled on other grounds by People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2; People v. Koontz, supra, 27 Cal.4th at p. 1080; People v. Brooks (2017) 3 Cal.5th 1, 58.)

"[U]nder California law premeditation and deliberation can occur in a brief period of time. [Citation.] The lack of evidence of extensive planning does not negate a finding of premeditation. [Citation.]" (People v. Brady (2010) 50 Cal.4th 547, 563.) "[A] cold and calculating decision to kill can be arrived at very quickly; we do not measure the necessary reflection solely by its duration. [Citations.]" (People v. Pensinger (1991) 52 Cal.3d 1210, 1238; see, e.g., People v. Hernandez (1988) 47 Cal.3d 315, 349-351 [substantial evidence of premeditation even though "the time for reflection was slight"]; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 [premeditation and deliberation can occur "in a brief interval"]; People v. Williams (1997) 16 Cal.4th 153, 223-224 [prosecutor did not misstate the law when he argued that deliberation can occur in "a split second"].)

E. Voir Dire

We now turn to the portion of the record where defendant contends the legal definitions of premeditation and deliberation were misstated. Defendant first points to voir dire, particularly the prosecutor's questions to the prospective jurors during the first and second rounds of questioning.¹²

12 Defendant's brief cites portions of voir dire without context to when the prosecutor discussed premeditation. The court conducted the first round of voir dire with the first 18 prospective jurors. The prospective jurors were identified by both their identification numbers, and the numbers of the chairs they were seated in. We have determined the prosecutor's comments about premeditation were made during the first and second rounds of voir dire.

The prosecutor told the prospective jurors that defendant was charged with first degree premeditated murder: "We've all heard the term 'premeditation.' " He asked Prospective Juror No. 14 what he thought the term meant. This person replied: "That there has to be intent before the encounter occurs."

The prosecutor asked the court if he could read the instruction for the legal definition of premeditation to the prospective jurors. The court said no and directed the prosecutor to "[j]ust use everyday comments."

The prosecutor asked Prospective Juror No. 14 if premeditation sounded "like it takes a long time." This person said no.

The prosecutor asked Prospective Juror No. 12 what premeditation meant. This person replied: "Premeditation is something that to some degree it was planned, whether that was over a few minutes or much more length of time. But it wasn't something that was maybe in self-defense or accidental or - you know, this was something that was planned." The prosecutor asked the same person if someone could premeditate "in a comparatively short period of time." This person said yes.

The prosecutor gave the prospective jurors another scenario:

"You probably premeditated all kinds of things when you were coming in today. Seriously. We do premeditate all the time.

"You're coming down [the street], and you're excited to get to the court to begin jury service, and you are rushing to get to the courthouse. And as happens a thousand times a day - trust me, because I live near the train tracks - a train. You heard the train whistle, and you see the lights start ding, ding, ding, ding, ding. And you see the guardrail. It starts moving.

"You start thinking, 'Can I make it? Can I get through this? Can I get through to the other side? Is this a good idea? Is this smart? I have kids in the car. I'm late. I'm trying to get to an appointment.'

"All of those things can operate in your head in a very short period of time." (Italics added.)

The prosecutor asked Prospective Juror No. 17 if "thinking about all those things, figuring out, and making a decision can happen in a comparatively short period of time" would be premeditation. This person replied, "It could," and it "might be a little more on instinct ... I don't know about completely." The prosecutor suggested that instinct was "sometimes thinking through ... all the things you know," such as how fast you are going, "what's happening; the train; how fast it's coming; whether that guardrail is going slow, fast, whatsoever." This person said yes.

The prosecutor continued:

"So the idea is - and please feel free to let me know if you think differently. The idea is premeditation is not something that has to take weeks or months or hours or even minutes. You can arrive at a thoughtful decision very quickly. [¶] Anybody disagree with that?" (Italics added.)

The transcript states that the prospective jurors shook their heads. One prospective juror (who was not identified by number) said he/she did not know because "... I hear the train tracks, the lights start flashing. That's like, spur of the moment, man. Do I stop? Do I go?" The prosecutor replied, "Same thing with a red light" when it's "turning yellow." A prospective juror (who was not identified but was likely the same person) replied, "It's, like, bam.... That could be spur of the moment," or " 'Hmm.' Yeah. My wheels are turning" about whether "I could get away with it or not." The prosecutor suggested that was part of the thought process, which meant "you're thinking about something." This person said it could be "spur of the moment or it could be premeditation."

The prosecutor asked Prospective Juror No. 7 for his/her opinion. This person wondered where the line was between premeditation and "more of a spontaneous reaction to a situation that you really don't know which way to go," and whether to hit the brakes or the gas.

The prosecutor stated:

"And that's the question; right? The law will not tell you. [The court's] instructions here aren't going to tell you. Premeditation doesn't give you a time frame. It doesn't say ten seconds, five seconds, two seconds. It doesn't tell you an hour. The law will not tell you how long to premeditate. [¶] The idea is that there isn't a time frame, and it can happen very quickly, that you can make a premeditated decision very quickly weighing the pros and cons." (Italics added.)

Prospective Juror No. 3 asked whether a person had to take responsibility for something that was premeditated, "[l]ike, I accidently got in an accident, but it was my fault." The prosecutor said no, because there was a difference between an accident and a premeditated act.

The prosecutor posited: "The idea is do you believe that a premeditated decision can happen in a comparatively short period of time." Prospective Jurors Nos. 6 and 12 said they agreed.

Prospective Juror No. 9 said he/she had seen "too much TV" and always thought the crime had been planned for weeks and months, but "[t]he way you describe it, it could be just a minute." The prosecutor agreed.

The prosecutor acknowledged the reference to television shows and mentioned the "science" aspect of "Law and Order" and "CSI," and advised the jurors not to expect "some pyrotechnics here on the stand" to reach the verdict. The prosecutor then turned to other issues.

After the first round of challenges, six more individuals were added to the group of prospective jurors. The prosecutor asked the new group of prospective jurors if they had been listening to the previous questions and had concerns about anything. Prospective Juror No. 15, who had just been seated, said he/she had been thinking about premeditation: "And my take on it is it sounds like if it's deliberate - for example, if I come up to a light and it's yellow, and I make the decision to go through it and I get hit, that appears to be a consequence of my deliberate premeditation to go through the yellow. Is that consistent ...." The prosecutor replied that was not inconsistent with premeditation, and there were no arbitrary numbers to put on the concept: "It can happen in what we would think is a comparatively brief period of time," but it was "the amount of time that you have to think about what you're doing and the actions that facilitate whatever act your taking." The prosecutor asked if that made sense, and this person said yes.¹³

13 We have reviewed the transcript of voir dire, the parties' challenges, the individuals who were excused, the new individuals who were seated in the multiple rounds, and the ultimate composition of the jury and alternates.
Based on our analysis of the prospective jurors' identification and seat numbers, Prospective Juror No. 12 was the only person from the first round who responded to the prosecutor's questions about premeditation and who was not excused or challenged; he/she was sworn in as Juror No. 12. None of the other prospective jurors who responded to the questions about premeditation in the first round were sworn as jurors.
Prospective Juror Nos. 10, 11, and 16, who were seated during that first round of voir dire, were also not excused or challenged, and they were later sworn in, respectively, as Juror Nos. 9, 10, and 11. They were present during the prosecutor's discussion of premeditation but none of them responded to his questions.
Prospective Juror No. 15, who was seated after the first round of challenges and made comments about premeditation, was later excused and not seated on the jury.

F. CALCRIM No. 521; Premeditation

As noted above, the jury was instructed on first degree premeditated murder, first degree felony murder, and second degree murder as a lesser included offense.

The court gave CALCRIM No. 521 on first degree murder and premeditation, which stated in relevant part:

"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant

acted with premeditation if he decided to kill before completing the act that caused death.

"The length of time the person spends considering whether to kill does not alone determining whether the killing is deliberate or premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (Italics added.)

G. Closing Arguments

The prosecutor who conducted the trial and gave closing argument¹⁴ argued defendant was guilty of first degree premeditated murder.

14 One prosecutor conducted voir dire, and another prosecutor conducted the trial.

"This means that the defendant intended to kill, that he weighed the consequences of his choice and that he decided to kill before he acted. [¶] There's no set period of time. There's no time limit to deciding to kill. The question is whether the defendant was able to reflect and not how long he was able to reflect."

The prosecutor then referred to the premeditation examples discussed during voir dire:

"So you all have been likely thinking about this concept from the very beginning when [the first prosecutor] spoke to you in jury selection about premeditation and deliberation. And he used the train crossing scenario. Some of you remember that. That when you're driving along and you come to a train crossing and the lights have gone on, but the arms have not started to come down yet, you have a decision to make about whether you're going to stop or whether you're going to go through the train tracks.

"And some of you rightly pointed out that that decision happens pretty quick. You don't take out a notepad and make a diagram, the pros and cons of stopping versus going through. But you still reason through a decision if you're paying attention, hopefully. Your thoughts might not come in full sentences. You're not likely to talk to anybody about it. But you weigh the consequences. You calculate a decision.

"Can you see the train? Can you hear the train? Based on whether you can see or hear the train, can you tell how far away it is from you? As you're watching, do the arms start to move? How fast are you going? Is there a bump that you are going to go over once you go over the tracks? Is there a truck behind you that's pretty close? Are your kids in the back seat?

"All of these things - all of these ideas can come to you pretty quickly, and you can weigh your options and make a decision.

"To be guilty under first-degree murder, under premeditation deliberation, the defendant must also weigh the consequences of his actions and calculate a decision. But, again, the test is not the extent of the - is the extent of the reflection, not the length of time.

"The defendant made a lot more decisions than anybody makes or anybody has time to make when they come to a railroad crossing. That's an example. But in this case, there's a lot more. His decisions were calculated."¹⁵ (Italics added.)

15 Defendant asserts the prosecutor misstated the law of premeditation and deliberation during this portion of closing argument.

Defendant did not object to the prosecutor's argument.

The prosecutor continued by discussing how defendant's preparation "for that fateful taxi ride" showed premeditation: He armed himself with a loaded revolver, he sat behind the taxi driver when he got into the cab, he never answered the victim when he repeatedly asked if they could pay for the ride, and he suddenly redirected the victim to drive to The Commons instead of the original location. When the victim again asked if they could pay him and said he was going to call the police, defendant made "a very conscious decision" to pull out the loaded gun, hit the victim in the head, and then shoot him three times in the back of the head.

The prosecutor argued defendant would be guilty of first degree murder if he had only fired one shot into the back of the victim's head, but "that's not the end of the story" because defendant fired two more shots into his head. The prosecutor cited the expert's testimony about trigger-pull pressure, and that defendant had to intentionally pull back the hammer and fire three times to discharge the fatal bullets into the victim's head. "[T]here is very little doubt, if any doubt at this point, that the defendant has not had time to reflect on the consequences of his decision...." The prosecutor argued that based on this evidence, there was no reasonable doubt that "defendant didn't know exactly what he was doing" and he was guilty of first degree premeditated murder.¹⁶

16 In issue II, post, we will address the prosecutor's reliance on first degree felony murder as an alternative theory.

1. Defense Counsel's Argument

Defense counsel argued the People failed to prove beyond a reasonable doubt that defendant shot the victim, and that all the witnesses had their own agendas and motive to life. The defense theory was that Woods was the gunman because he called for the cab, had blood all over him after it was over, and lined up an alibi before he was picked up by the police. Defense counsel complained that the blood on the jeans was never tested to determine if it belonged to the victim, and the pants could have been from Woods. Defense counsel also discounted the prosecutor's theory about a robbery because none of the witnesses said anything about a robbery.

H. Analysis

Defendant argues the People's use of the "train crossing analogy" in voir dire and closing argument "hopelessly blurred the distinction between express or implied malice and a premeditated killing." The prosecutor misstated the law because "if premeditation and deliberation can be formed not only quickly, but also without any more reflection than when a driver decides whether or not to risk the potential danger to life by driving through a train crossing, there would not be any meaningful distinction between a killing that is premeditated and a malice killing. Indeed, the decision to risk life and limb by driving over the tracks before the crossing arms descend is akin to conscious disregard for danger to life, which is implied malice."

Defendant's argument is based on People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen), which addressed whether the prosecutor misstated the reasonable doubt standard in closing argument by arguing:

" 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [¶] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes. [¶] So it's a standard that you apply in your life. It's a very high standard. And read that instruction, too. I won't paraphrase it because it's a very difficult instruction, but it's not an unattainable standard. It's the standard in every single criminal case.' " (Id. at p. 35.)

Nguyen "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry. The argument is improper even when the prosecutor, as here, also states the standard for reasonable doubt is 'very high' and tells the jury to read the instructions." (Nguyen, supra, 40 Cal.App.4th at p. 36.)

"The prosecutor's argument that people apply a reasonable doubt standard 'every day' and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]" (Ibid.)

While Nguyen disapproved of the prosecutor's comments, it affirmed the defendant's convictions because the defendant waived the issue by failing to object to the prosecutor's alleged misconduct and an admonition would have cured any error. (Nguyen, supra, 40 Cal.App.4th at p. 36.) Nguyen further held the defendant did not suffer prejudice because the jury was properly instructed on reasonable doubt, the prosecutor directed the jury to follow the reasonable doubt instruction, and the jury was presumed to have followed the instruction. (Id. at pp. 36-37.)

Nguyen addressed whether the prosecutor's argument reduced the People's burden of proof beyond a reasonable doubt; it did not discuss premeditation and deliberation. In People v. Avila, supra, 46 Cal.4th 680, however, the court addressed whether the prosecutor misstated the legal standard for premeditation in one part of closing argument. (Id. at p. 715.)

"[T]he prosecutor used the example of assessing one's distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a 'quick judgment' that is nonetheless 'cold' and 'calculated.' He then immediately said, 'Deciding to and moving forward with the decision to kill is similar, but I'm not going to say in any way it's the same. There's great dire consequences that have a difference here.' " (Id. at p. 715, italics added.)

Avila rejected the defendant's claim that the prosecutor improperly argued the decision whether to stop at a yellow light was the equivalent of " 'the "cold, calculated" judgment' " of premeditation required for murder. (People v. Avila, supra, 46 Cal.4th at p. 715.) Avila emphasized that the prosecutor immediate clarified that he was not equating murder with the decision to drive through a yellow light. (Ibid.)

Defendant acknowledges Avila but asserts the prosecutor in that case properly distinguished premeditation and intent, whereas the prosecutor in this case failed to do so and used an example that was more consistent with implied malice. However, the statements by the prosecutors at both voir dire and closing argument in this case must be considered in the overall context of the People's argument about premeditation. As set forth above, premeditation can be formed in a very brief period of time. As in Avila, the prosecutor added a qualifying statement in her closing argument about the different consequences of a decision to kill compared to a decision to cross the train tracks when she argued: "The defendant made a lot more decisions than anybody makes or anybody has time to make when they come to a railroad crossing. That's an example. But in this case, there's a lot more. His decisions were calculated." (Italics added.) The prosecutor followed her brief "train" example with a lengthy discussion of the evidence that supported premeditation and deliberation based on how defendant prepared to kill the driver before he got into the taxi, and that defendant's preparation went well beyond a sudden decision to cross train tracks to beat the crossing arm.

The prosecutor did not describe premeditation as an "almost reflexive decision" as in Nguyen, supra, 40 Cal.App.4th at p. 36, but instead described a decision based on an evaluation of whether to proceed, distinguished the train example from a murder, and stressed that such an evaluation could be accomplished in a very quick period of time.

In addition, the trial court properly instructed the jury with the legally correct definitions of premeditation and deliberation that distinguished the concept from unconsidered and rash impulses. CALCRIM No. 521 stated: "A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." The jury was also instructed that it must follow the law as instructed by the court, it must not follow the attorneys' comments on the law, and the statements made by the attorneys were not evidence.

In determining how jurors likely understood the prosecution's argument, we do " ' "not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." ' [Citations.]" (People v. Cortez, supra, 63 Cal.4th at p. 131.) Even if some aspects of the statements made by the prosecutor in voir dire were not precise, the prosecutor who made closing argument distinguished the train example from premeditating a murder. We presume the jurors followed the instructions and see "no reasonable likelihood the jury construed or applied the prosecution's challenged remarks in an objectionable fashion." (Id. at pp. 133-134.)

Even if defendant could establish his attorney was ineffective for failing to object, he cannot establish a reasonable probability that the result of the proceeding would have been different but for counsel's error. The jury heard defendant's pretrial statements where he denied being in the cab compared to Woods's account of the homicide. The defense theory was that Woods was the gunman, and the witnesses testified against defendant based on their own self-interests to implicate him.

Nevertheless, the evidence of premeditation and deliberation in this case was strong based on Woods's description of the homicide. Either defendant or Woods made the decision to have the driver pick them up at an address that was not associated with either of them. Defendant sat behind the victim armed with a loaded handgun and directed him to stop in a parking lot. When the victim asked if they could pay the fare, defendant immediately pulled the gun, struck him in the face, and then fired three shots in succession into the back of his head. (See, e.g., People v. Poindexter (2006) 144 Cal.App.4th 572, 588 [substantial evidence of premeditation where the "defendant quickly fired three shots at the victim, with a shotgun, from a relatively close range. Thoughts may indeed flow with great rapidity," and the defendant's decision to kill "although quickly formed, was the result of a cold and calculated judgment and decision"].)

II. Unanimity Instruction

Defendant contends that since the jury in this case the was instructed on multiple theories of first degree murder - first degree premeditated murder and first degree felony murder - the court should have also instructed that it had to unanimously agree on which specific theory of murder they relied upon to convict him of first degree murder. Defendant argues the absence of such an instruction violated his due process rights and requires reversal of his conviction.

As we will explain, a jury must unanimously agree on the degree of murder a defendant is guilty of - first or second degree. A jury is not required to unanimously agree on which theory of first degree murder it relied upon to find a defendant guilty of that offense. The entirety of the instructions show that the jury was correctly instructed in this case.

A. Guerra

Jury unanimity is guaranteed by the due process clauses of the federal and state Constitutions. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1588.) The unanimity instruction eliminates the danger a criminal defendant will be convicted without the jurors agreeing on a single offense. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) The trial court has a sua sponte duty to instruct on unanimity "where the circumstances of the case so dictate. [Citations.]" (People v. Carrera (1989) 49 Cal.3d 291, 311, fn. 8; People v. Riel (2000) 22 Cal.4th 1153, 1199.)

"To convict a defendant of first degree murder, the jury must unanimously agree that the defendant is guilty of that offense beyond a reasonable doubt. But, as we have repeatedly explained, the jury need not unanimously agree on the theory underlying the first degree murder. [Citations.]" (People v. Taylor (2010) 48 Cal.4th 574, 626.) " 'Felony murder and premeditated murder are not distinct crimes; rather, they constitute "two kinds of first degree murder" requiring different elements of proof.' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 514.)

In People v. Guerra (1985) 40 Cal.3d 377, the defendant argued the trial court erroneously refused "to give an instruction requiring the jurors to agree unanimously on a single theory of first degree murder in order to return a first degree murder conviction. It is settled, however, that 'in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.' [Citation.] Defendant provides no compelling reason or authority that would require us to depart from this rule, and we decline to do so." (Id. at p. 386, italics added.)

In People v. Johnson (1991) 233 Cal.App.3d 425, the defendant asserted Guerra was wrongly decided and violated due process because "if jurors need not agree unanimously on the theory of murder, their deliberative processes may be streamlined to a point at which one cannot be certain every juror is satisfied each element of the crime has been proved beyond a reasonable doubt. [Citations.]" (Johnson, supra, at p. 455.) Johnson rejected this argument because the defendant provided "neither empirical nor legal support for his contentions. Permitting conviction of murder upon a unanimous verdict of guilt without requiring unanimity on the theory of murder is simply not the equivalent of allowing conviction on the vote of only seven or eight jurors out of twelve. [Citations.]" (Id. at pp. 455-456, italics added)

The California Supreme Court has reaffirmed Guerra's holding on multiple occasions. "As for defendant's separate claim that a unanimity instruction should have been given, we find no reason to depart from our cases that have 'repeatedly rejected this contention, holding that the jurors need not unanimously agree on a theory of first degree murder as either felony murder or murder with premeditation and deliberation. [Citations.]' [Citation.]" (People v. Morgan (2007) 42 Cal.4th 593, 617, citing People v. Nakahara (2003) 30 Cal.4th 705, 712; People v. Moore (2011) 51 Cal.4th 386, 413; People v. Millwee (1998) 18 Cal.4th 96, 160, 617.)

B. Sanchez and Johnson

Defendant asserts this case is more consistent with People v. Sanchez (2013) 221 Cal.App.4th 1012 (Sanchez) and People v. Johnson (2016) 243 Cal.App.4th 1247 (Johnson).

In Sanchez, supra, 221 Cal.App.4th 1012, the defendant was not charged as the perpetrator of the murder. Instead, the jury was instructed that the defendant was being tried for murder on two distinct theories of aiding and abetting: first degree felony murder, if he aided and abetted a kidnapping that resulted in the death of the victim; and second degree murder, if the murder was the natural and probable consequence of an assault or kidnapping. During deliberations, the jury asked the court about the definition of second degree murder. The court responded with part of CALCRIM No. 548: " 'You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory.' " (Id. at p. 1019.) The jury resumed deliberations and ultimately convicted the defendant of first degree murder. (Id. at p. 1024.)

On appeal, the defendant in Sanchez argued the jury was erroneously instructed on unanimity. Sanchez cited to Guerra's holding about multiple theories on the same degree of murder, but distinguished the instructions given for the defendant's culpability as an aider and abettor:

"When a crime is divided into degrees, the jury must find the degree of the crime. [Citation.] 'It is settled, however that "in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by statute." [Citation.]' [Citations.] We have no quarrel with this principle of law, cited by the Attorney General, but the rule has no application in this case because there was only one theory of first degree murder." (Sanchez, supra, 221 Cal.App.4th at pp. 1024-1025, italics added.)

Sanchez held the instruction given in response to the jury's question, that the jurors did "not all need to agree on the same theory," was erroneous under the circumstances of that case:

"The final instruction the jury received on unanimity was that it need not agree on the theory of guilt, even though presented with alternate theories of liability which led to different results as to the degree of the murder. Unanimity was required in this case as to the theory of guilt as a result of different theories supporting different degrees of murder. The prosecutor understood the need for unanimity at the time he requested instructions on natural and probable consequences, specifically telling the trial court the jury could return a verdict of murder in the first or second degree, depending on what theory they unanimously agreed upon.

"The trial court's supplemental instruction in response to the jury's question regarding the meaning of second degree murder undermined the notion of unanimity as to degree by unambiguously stating: 'You do not all need to agree on the same theory.' There is no way to determine, on the record presented, whether the jury followed the instruction during deliberations stating unanimity was not required, or the earlier instruction pursuant to CALCRIM No. 640, which set forth a different approach to the verdict forms on both degrees of murder." (Sanchez, supra, 221 Cal.App.4th at p. 1025, fn. omitted.)

Sanchez concluded: "There is no way to determine, on the record presented, whether the jury followed the instruction during deliberations stating unanimity was not required, or the earlier instruction pursuant to CALCRIM No. 640, which set forth a different approach to the verdict forms on both degrees of murder." (Sanchez, supra, 221 Cal.App.4th at p. 1025.)

In Johnson, supra, 243 Cal.App.4th 1247, the defendants were convicted of first degree murder. The jury was instructed that the defendants were being prosecuted for murder under two theories: aiding and abetting another who acted with malice aforethought, which constituted second degree murder; and first degree felony murder. The jury was further instructed that it could not find a defendant guilty of murder " 'unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory.' " (Id. at p. 1277.) The defendants relied on Sanchez and argued the instruction, based on CALCRIM No. 548, was erroneous because the jury was "misled into thinking that they need not all agree on whether defendants were guilty of first or second degree murder in reaching a verdict of murder, which is contrary to law." (Johnson, at pp. 1277, 1279.)

Johnson agreed with Sanchez and held the instruction was erroneous because it "essentially told the jury it need not reach a unanimous decision as to the degree of murder." (Johnson, supra, 243 Cal.App.4th at p. 1280.) In reaching this conclusion, however, Johnson effectively distinguished the situation from the holding in Guerra:

"Where a defendant is charged with first degree murder, the jurors are not required to agree on 'one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by statute.' [Citation.] However, the law is also clear that the jury must unanimously determine whether murder is in the first or second degree. [Citation.]" (Johnson, at p. 1278, italics added.)

Johnson held that, as in Sanchez, the jury in the case was presented with one theory of first degree murder based on felony murder, and one theory of second degree murder based on malice. (Johnson, supra, 243 Cal.App.4th at p. 1279.) "The flaw in giving CALCRIM No. 548 was that it suggested to the jury that it need not agree on the degree of murder. The fact that the jury was not in fact required to agree on a theory of first degree felony murder is irrelevant." (Id. at p. 1280.)

C. Murder Instructions

Defendant asserts the instructions in this case were similar to those found erroneous and prejudicial in Sanchez and Johnson.

The jury received CALCRIM No. 520, that defendant was charged with murder in violation of section 187, defined express and implied malice, and stated:

"If you decide that the defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM No. 521." (Italics added.)

CALCRIM No. 521 stated defendant was guilty of first degree murder if the People proved he acted willfully, deliberately, and with premeditation and, as set forth above, fully defined those terms. It also stated:

"The requirements for second degree murder based on express or implied malice are explained in CALCRIM No. 520, first- or second-degree murder with malice aforethought. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first-degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder." (Italics added.)

D. Felony-murder Instruction

The jury next received CALCRIM No. 540A on felony murder:

"The defendant is charged with murder under a theory of felony murder. To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: One, the defendant committed attempted robbery; two, the defendant intended to commit robbery; and three, while committing robbery, the defendant caused the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.

"To decide whether the defendant committed an attempted robbery, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder." (Italics added.)

The jury was instructed on the elements of robbery and attempted robbery.

E. CALCRIM No. 548

The court gave CALCRIM No. 548 immediately after the felony murder instruction:

"The defendant has been prosecuted for murder under two theories: One, malice aforethought; and two, felony murder. Each theory of murder has different requirements, and I will instruct you on both.

"You may not find the defendant guilty of murder unless you all agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory." (Italics added.)

F. CALCRIM No. 640

The court next gave CALCRIM No. 640:

"You will be given verdict forms for guilty and not guilty of first-degree murder and second-degree murder. You may consider these different kinds of homicides in whatever order you wish, but I can accept a verdict of guilty or not guilty of second-degree murder only if you all have found the defendant not guilty of first-degree murder.

"To return a verdict of guilty or not guilty on a count, you must all agree on that decision. Follow these directions before you give me any completed and signed final verdict form. ... Return unused verdict forms to me unsigned.

"If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of first-degree murder, complete and sign that verdict form. Do not complete or sign any other verdict form. [¶]

"If all of you cannot agree whether the defendant is guilty of first-degree murder, inform me that you cannot reach an agreement and do not complete or sign any verdict form.

"If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of second-degree murder, complete and sign the form for not guilty of first-degree murder and the form for guilty of second-degree murder. Do not complete or sign any other verdict form.

"If all of you agree the defendant is not guilty of first-degree murder but cannot agree whether the defendant is guilty of second-degree murder, complete and sign the form for not guilty of first-degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict form.

"If all of you agree the defendant is not guilty of first-degree murder and not guilty of second-degree murder, complete and sign the verdict forms for not guilty of each crime. Do not complete or sign any other verdict forms." (Italics added.)

G. Reasonable Doubt

The jury was instructed with CALCRIM No. 220, the pattern instruction on the People's burden of proof, and stated in part:

"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt."

The jury was instructed on the elements of the firearm enhancement, and that the People had the burden to prove each allegation beyond a reasonable doubt.

CALCRIM No. 3550 was the final instruction, addressed deliberations, and stated in relevant part:

"Your verdict on each count or any special findings must be unanimous. This means that to return a verdict, all of you must agree to it." (Italics added.)

The jury received verdict forms for first degree murder, and second degree murder as a lesser included offense.

H. The Prosecutor's Closing Argument

In closing argument in this case, after the prosecutor addressed premeditation and deliberation, as set forth in issue I, ante, she told the jury there were two ways to find defendant guilty of first degree murder: premeditation and deliberation, and "also what we call a felony murder rule."

"First-degree felony murder occurs when a defendant commits a certain crime. In this case, an attempted robbery, when the defendant intended to commit robbery. And while attempting to commit robbery, the defendant caused a death."

The prosecutor argued defendant was guilty of first degree murder "under both theories. But this was a robbery that ended in a murder." There was no evidence whether defendant and/or Woods took any property from the victim "so we don't know whether the robbery was completed," but the felony-murder rule also applied to an attempted robbery.

The prosecutor then addressed how the jury should deliberate over the different theories:

"For you to find that the defendant committed first degree murder, 12 of you must agree that it was first-degree murder. However, the 12 of you do not have to agree on the theory of first-degree murder.

"If six of you agree that it was premeditation and deliberation and the other six of you agree that it happened during a robbery, that it was first-degree felony murder, you are at first-degree murder. Again, we

submit to you that both can be true. But as long as one of them is true, between the 12 of you, that's first degree murder." (Italics added.)

I. Analysis

It is well settled that jury instructions are not considered in isolation, but rather in the context of the entire charge and the parties' arguments. (People v. Young (2005) 34 Cal.4th 1149, 1202.) "Taking into account the instructions as a whole and the trial record, we 'determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.] We presume that jurors are intelligent and capable of correctly understanding, correlating, applying, and following the court's instructions. [Citations.]" (People v. Acosta (2014) 226 Cal.App.4th 108, 119.)

As in Guerra and Johnson, the court was not required to give the unanimity instruction because of the People's reliance on the two separate theories of premeditation and felony murder for the first degree murder charge. The instructional error that existed in Sanchez and Johnson, based on the unique facts of those cases, did not occur here. Defendant was tried as the perpetrator of the murder and not an aider and abettor. The prosecutor expressly advised the jury that she was seeking a conviction for first degree murder and made the election that defendant could be found guilty of first degree murder based on two theories: either premeditation and deliberation, or felony murder based on a robbery or attempted robbery. The instructions were consistent with the fact that defendant could be convicted of first degree murder under either of those two theories.

While the jury was instructed on second degree murder based on malice aforethought, that instruction was given as a lesser included offense and was only relevant if the jury found the People had failed to prove defendant was guilty of first degree murder. The inclusion of the lesser included instruction did not transform this case from the situation addressed in Guerra to the unique circumstances of Sanchez and Johnson. In contrast, the juries in Sanchez and Johnson were instructed about two different theories that coincided with two different degrees of murder - either first or second degree. The juries in Sanchez and Johnson had to reach unanimous verdicts on which theory they relied upon to find those defendants guilty since each theory was based on a different degree of murder. (Sanchez, supra, 221 Cal.App.4th at pp. 1019, 1022, 1025; Johnson, supra, 243 Cal.App.4th at pp. 1280-1281.)

Based on the entire record of this trial, including the instructions and the parties' arguments, there is no reasonable likelihood the jurors would have misconstrued the instructions in the manner proposed by defendant so that they did not unanimously agree defendant was guilty of first degree murder.

III. The Firearm Enhancement

The jury found true the allegation that defendant personally and intentionally discharged a firearm which proximately caused death pursuant to section 12022.53, subdivision (d). The court imposed a consecutive term of 25 years to life for this enhancement.

Defendant asserts the matter must be remanded for the court to consider whether it would strike the sentence for the firearm enhancement based on the enactment and effective date of Senate Bill No. 620 (2017-2018 Reg. Sess.) (SB 620). The People concede the sentencing provisions of SB 620 are retroactive since defendant's case is not yet final. However, the People argued remand is not appropriate because there is no reason to believe the court would have stricken the enhancement based on the nature and circumstances of the murder.

A. SB 620

Imposition of firearm enhancements under sections 12022.5 and 12022.53 was previously mandatory, and the terms could not be stricken in the interest of justice pursuant to section 1385 or any other provision of law. (People v. Kim (2011) 193 Cal.App.4th 1355; People v. Sinclair (2008) 166 Cal.App.4th 848, 852-853; People v. Felix (2003) 108 Cal.App.4th 994, 999; People v. Thomas (1992) 4 Cal.4th 206, 213-214.)

On October 11, 2017, Governor Brown signed SB 620, that became effective January 1, 2018. SB 620 amended sections 12022.5 and 12022.53 to give discretion to the trial court to strike firearm enhancements in the interest of justice. Both these statutes now state:

"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.5, subd. (c); § 12022.53, subd. (h).)

B. Remand

The sentencing hearing in this case was held on November 1, 2017, just days after SB 620 was signed into law. However, the new provisions were not effective until January 1, 2018. Neither the court nor the parties addressed whether it applied to defendant's case or discussed it in any way.

Defendant and the People agree that SB 620's amendments apply retroactively to cases not yet final on appeal but disagree whether remand is appropriate in this case. (People v. Brown (2012) 54 Cal.4th 314, 323; People v. Francis (1969) 71 Cal.2d 66, 75-76; In re Estrada (1965) 63 Cal.2d 740, 746.)

Remand is necessary when the record shows the trial court proceeded with sentencing on the erroneous assumption it lacked sentencing discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court " ' "would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' [Citation.]" (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)

The People assert that remand is not necessary because the trial court would not strike the firearm enhancement given the violent nature of the murder. At the sentencing hearing, however, the court sentenced defendant to 25 years to life for first degree murder, and a consecutive term of 25 years to life for the firearm enhancement and did not make any specific findings about aggravating or mitigating circumstances or the nature and circumstances of the crime. The court only noted that defendant was 19 years old at the time. As we will discuss in issue 4, the court's comment was apparently a reference to whether defense counsel was going to request a youthful offender hearing under People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

Given the silence of the record, we cannot say there is a clear indication that remand will be an idle act. We are therefore compelled to remand the matter for the trial court to determine in the first instance whether to exercise its statutory discretion to strike the firearm enhancement in this case under section 12022.53, subdivision (h). By remanding the matter, however, we do not find that the trial court must strike the enhancement, but only that the trial court shall consider whether to exercise its discretion pursuant to the newly enacted statutory provisions. IV. Remand for Franklin Hearing

Defendant was born in November 1996. He murdered Barker on or about January 4, 2015, when he was 18 years old. Defendant asserts the matter must be remanded for a youthful offender hearing under Franklin, supra, 63 Cal.4th 261. Defendant concedes his defense counsel indicated he was going to file appropriate documents pursuant to Franklin, but counsel failed to do so, and that failure resulted in ineffective assistance. The People argue remand is not required because the probation report and defendant's letter to the court contained sufficient information for purposes of Franklin, and counsel may have concluded there was no additional information that would be helpful to defendant.

A. Section 3051 and Franklin

Section 3051, subdivision (a)(1) states that "any prisoner who was 25 years of age or younger ... at the time of his or her controlling offense" shall be provided "[a] youth offender parole hearing by the Board of Parole Hearings ... for the purpose of reviewing the [prisoner's] parole suitability ...." A person who committed the crime when he or she was 25 years of age or younger, and sentenced to 25 years to life, is entitled to the youth offender parole hearing during his or her 25th year of incarceration. (§ 3051, subd. (b)(3).)

At this hearing, the Board "shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)

Franklin held the youth offender parole hearing statutes "contemplate that information regarding the juvenile offender's characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board's consideration. For example, section 3051, subdivision (f)(2) provides that '[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime ... may submit statements for review by the board.' Assembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away. [Citation.] In addition, section 3051, subdivision (f)(1) provides that any 'psychological evaluations and risk assessment instruments' used by the Board in assessing growth and maturity 'shall take into consideration ... any subsequent growth and increased maturity of the individual.' Consideration of 'subsequent growth and increased maturity' implies the availability of information about the offender when he was a juvenile. [Citation.]" (Franklin, supra, 63 Cal.4th at pp. 283-284.)

Since it was not clear whether the offender in Franklin "had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing," the court "remand [ed] the matter to the trial court for a determination of whether [the defendant] was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284.)

Franklin held that at such a hearing, the offender "may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties 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 (§ 4801, subd. (c)) 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]." (Franklin, supra, 63 Cal.4th at p. 284.)

B. Defendant's Sentencing Hearings

On November 1, 2017, the court conducted the sentencing hearing in this case. Defendant was present and represented by his trial attorney, Mr. Coughlin. The court said it would conduct another hearing on January 3, 2018 for additional restitution issues, and "also Mr. Coughlin wants to file a memo related to [defendant], and it should be filed by that date." The court stated it would continue with the sentencing hearing, reserve the issue of further restitution, "and allow [defense counsel] time to file the information he feels relevant to [defendant's] case at that date." The court sentenced defendant to an aggregate term of 50 years to life in state prison and imposed various fines and fees.

The court then stated:

"For the record, the Court notes [defendant's] date of birth is [1996]. The murder which he was convicted occurred on January 5th, [2015]. [Defendant] was 19 years of age at the time the offense occurred."¹⁷

17 Defendant was actually 18 years old when he committed the murder, based on his date of birth.

The court set a hearing for January 3, 2018 for further restitution "and receipt of [defense counsel's] report."

On January 3, 2018, the court held the continued sentencing hearing. Mr. Coughlin again represented defendant. The court stated there did not appear to be any additional restitution issues, "but Mr. Coughlin wanted to file a report." Mr. Coughlin replied: "Yes. I am still working on that, but I believe I have plenty of time to do that. So we can still proceed today."

The court reserved jurisdiction for further victim restitution and remanded defendant to the Department of Corrections and Rehabilitation. The court again said the "sole purpose" for the hearing had been "to enable Mr. Coughlin to file a report" but he did not file anything.

The instant appellate record does not contain any report or documents consistent with Franklin that defense counsel filed after the January 3, 2018 hearing.

C. Analysis

The People assert the matter should not be remanded because the sentencing hearings in this case were held after Franklin was decided, defense counsel may have concluded that it was better not to file any documents with information that the People could rebut, and there is a sufficient record for defendant's future parole hearing based on the probation report and defendant's letter to the court.

Defendant was 18 years old when he murdered Barker and sentenced to 25 years to life for first degree murder. He was clearly within the scope of section 3051 and Franklin. He was thus entitled to "make a record of information relevant to his eventual youth offender parole hearing." (Franklin, supra, 63 Cal.4th at p. 284; § 3051, subd. (a)(1).) The court recognized this situation based on its statements at the first sentencing hearing and agreed that defense counsel could present relevant evidence at the continued hearing a few weeks later. At the continued hearing on January 3, 2018, defense counsel stated his intent to file some type of pleading that contained such information, but said he was not ready and had plenty of time to complete whatever he was working on. The instant record does not contain any documents filed after that hearing.

The California Supreme Court has observed that "some offenders may choose not to present certain forms of evidence, such as live testimony, or to forgo a Franklin proceeding altogether. Delving into the past is not always beneficial to a defendant. The opportunity for a Franklin hearing is just that: an opportunity." (In re Cook (2019) 7 Cal.5th 439, 459.) Based on this record, however, we cannot say defendant forfeited his opportunity to present the information contemplated by Franklin.

Since the matter is already being remanded pursuant to SB 620, the court is directed to determine on remand whether defense counsel filed any type of pleading or document after January 3, 2018, consistent with section 3051 and Franklin. If such information was filed with the superior court, Franklin makes clear that the People are also entitled to present relevant evidence. (Franklin, supra, 63 Cal.4th at p. 284.)

If counsel did not do so, the court shall determine whether counsel's failure was a tactical decision. If counsel's failure was not the result of a tactical decision, the court shall determine whether defendant had an adequate opportunity in accordance with Franklin to make a record of information relevant to his future parole eligibility hearing under sections 3051 and 4801.

If the court deems it necessary, it shall provide defendant and the People with an opportunity to make such a record and for the court to "receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence," as discussed in Franklin. (Franklin, supra, 63 Cal.4th at p. 284.)

DISPOSITION

Defendant's conviction for first degree murder and the firearm enhancement found true are affirmed.

The matter is remanded for the court to determine whether to exercise its discretion pursuant to SB 620 on the firearm enhancement. On remand, the court shall address section 3051 and Franklin, consistent with the views expressed in this opinion.

/s/_________

POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
SMITH, J. /s/_________
SNAUFFER, J.