P. v. Jelks

Filed 10/9/18 P. v. Jelks CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
KELVIN JELKS,
Defendant and Appellant.
B280897
(Los Angeles County
Super. Ct. No. BA418329)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig E. Veals and Edmund Willcox Clarke, Jr.,
Judges. Affirmed in part, reversed in part, and remanded.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Shawn McGahey Webb, Supervising Deputy
Attorney General, Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.

-- 1 of 29 --

2
INTRODUCTION
Defendant and appellant Kelvin Jelks (defendant) was
convicted of second degree robbery (Pen. Code, § 2111), and
assault with a semiautomatic firearm (§ 245, subd. (b)). On
appeal, defendant contends: (1) the police’s photographic lineup
violated his due process rights; (2) his statement made to a police
officer at the hospital was inadmissible because it was obtained
in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda);
(3) the trial court erred by denying his new trial motions based on
ineffective assistance of counsel; (4) this court should conduct an
independent review of the sealed transcript of the trial court’s in
camera hearing conducted pursuant to Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess); and (5) the matter should be
remanded to the trial court to allow it to exercise its discretion to
strike the firearm enhancements. We affirm the convictions but
reverse the sentence and remand for the trial court to determine
whether to strike the firearm sentencing enhancements.
BACKGROUND
Roberto Hernandez worked at the Rodriguez Recycling
Center, located at 4363 South Avalon Boulevard. Hernandez
generally opened the business every morning. On November 12,
2013, Joseph Tarver, a customer and self-described, occasional
volunteer at the recycling center, arrived at the recycling center
before Hernandez came to open up the business. While Tarver
was waiting, defendant, whom Tarver had never seen before,
walked past Tarver and headed toward Vernon Avenue. They
acknowledged one another with a nod.
1 All statutory citations are to the Penal Code unless
otherwise indicated.

-- 2 of 29 --

3
Hernandez eventually arrived at the recycling center and
was carrying a bag that contained a laptop computer,
approximately $1,700 in cash, a notebook, and purchasing
reports. While Hernandez was opening the door to the business,
defendant approached him and said, “Give me, mother fucker,
bag.”
Defendant then grabbed Hernandez’s bag and ran on
Avalon Boulevard toward Martin Luther King Boulevard. Tarver
was standing next to Hernandez during the robbery. Tarver saw
defendant point a gun at Hernandez.
Hernandez and Raul Justiniano, another employee at the
recycling center, chased after defendant. While being pursued,
defendant turned and shot Hernandez. The bullet went through
Hernandez’s left leg and entered his right leg. Hernandez was
“face-to-face” with defendant when he was shot and saw
defendant for “a few seconds.” Hernandez was taken to the
hospital for the gunshot wound.
At the hospital, Hernandez spoke to the police and told
them that the shooter had a tattoo under his left eye. The police
thereafter showed Hernandez a photographic lineup of six
individuals (six-pack). Hernandez circled picture number two
and identified the person in the picture (which was defendant) as
the one who had shot him. Hernandez also subsequently
identified defendant as the shooter in court at the preliminary
hearing and at trial.
When the police interviewed Tarver on the day of the
robbery, Tarver told the police that the robber was black, had a
tattoo on his face, and had darker skin than Tarver. That same
day, the police also showed Tarver a six-pack photographic lineup
identical to the one shown to Hernandez. Tarver circled

-- 3 of 29 --

4
defendant’s photo in picture number two. At trial, Tarver
testified that he chose that photo because it “definitely” looked
like the person who had robbed Hernandez.
Los Angeles Police Department Officer Brendy Ponce was
the investigating officer in this case. During his investigation, he
recovered from the roof of a nearby church Hernandez’s bag
containing his laptop computer and receipts from Rodriguez
Recycling. This location was close to defendant’s residence at
1588 E. Martin Luther King Boulevard.
Los Angeles Police Department Officers Ramon Melendez
and Manuel Gutierrez were on patrol in their marked patrol car
the morning of the robbery and shooting. When they received a
radio communication about an assault with a deadly weapon that
had just occurred in the area of Avalon Boulevard and Vernon
Avenue, they responded to the call. Officer Melendez saw a black
male wearing a black sweater, which matched the description of
the subject given during the radio communication. Officer
Melendez looked directly at the suspect and recognized him as
defendant because Officer Melendez had encountered defendant
in the neighborhood about five times previously, including a 10-
minute conversation with defendant on one occasion.
After the officers made eye contact with defendant,
defendant crouched down in front of a parked car. Officer
Gutierrez then exited the patrol car, identified himself, and
ordered defendant to put up his hands. Defendant ran
northbound up an alley. Officer Gutierrez and Officer Melendez
followed defendant in the patrol car but lost sight of defendant by
the time they reached the end of the alley.
On the day of the robbery and shooting, Los Angeles Police
Department Officer Clifford Chu was working with a K9 unit and

-- 4 of 29 --

5
assisted in the investigation. Officer Chu found a black
sweatshirt in the vicinity of the incident, specifically the 600
block of 41st Place, between Avalon Boulevard and McKinley
Avenue. DNA was subsequently recovered from the sweatshirt.
The major DNA profile recovered from the item matched
defendant’s DNA profile, which only appears in approximately
one in ten trillion individuals.
Los Angeles Police Department Officer Jason Schwab was
also working with a K9 unit on the day of the robbery and
shooting. When Officer Schwab and his police dog, JoJo,
responded to the area, JoJo alerted to a white van that was
parked in a driveway. Officer Schwab ordered the person inside
the van to surrender. After five minutes or less, defendant
opened the front door of the van. Officer Schwab warned
defendant that if he tried to flee, he would deploy his dog.
Defendant stepped out of the van, showed his hands to the police,
and ran away. Per Officer Schwab’s command, JoJo went after
defendant, struck defendant in the chest, knocked him to his
knees, and bit defendant’s pant leg pocket. Defendant
surrendered, and the police took him into custody.
After his arrest, defendant was taken to the hospital for
treatment of the dog bite wound he sustained. At the hospital,
Los Angeles Police Department Officer Tenorio asked defendant
how he was feeling. Defendant replied, “I fucked up on Vernon.”
Defendant was charged in an amended information with
one count of second degree robbery in violation of section 211
(count one) and one count of assault with a semiautomatic
firearm in violation of section 245, subdivision (b) (count two). As
to count one, the information alleged firearm enhancements
pursuant to section 12022.53, subdivisions (b) through (d) and, as

-- 5 of 29 --

6
to count two, a firearm enhancement pursuant to section 12022.5.
As to both counts, the information alleged that defendant had
suffered one prior “strike” conviction as defined by sections 667,
subdivision (d), and 1170.12, subdivision (b)), one prior serious
felony conviction as defined by section 667, subdivision (a)(1), and
that he had served one prior prison term as defined by section
667.5.
Defendant proceeded to trial, at which his counsel
principally argued to the jury, “This case is about mistaken
identification . . . .” In the defense case, the defendant called one
witnessDr. Mitchell Eisen, a psychologist with expertise in
memory and suggestibility.
Following trial, the jury found defendant guilty of all
counts and found that the special allegations were true.
Defendant admitted his prior convictions. The trial court
sentenced defendant to state prison for a term of 40 years to life.
Defendant timely appealed.
DISCUSSION
I. Photographic Lineup
Defendant argues the six-pack shown to Hernandez and
Tarver violated his due process rights in that it was unduly
suggestive and led to an unreliable identification of defendant as
the robbery suspect. Defendant thus contends the trial court
erred by denying his motion to suppress evidence of the
photographic lineup. Defendant further contends any in-court
identification of defendant as the robbery suspect was tainted by
the unduly suggestive photographic lineup. We reject these
contentions.

-- 6 of 29 --

7
In order to determine whether a photographic identification
procedure was so unreliable as to violate a defendant’s due
process rights, the court must ascertain: “(1) whether the
identification procedure was unduly suggestive and unnecessary,
and, if so, (2) whether the identification was nevertheless reliable
under the totality of the circumstances. [Citation.]” (People v.
Gonzalez (2006) 38 Cal.4th 932, 942 (Gonzalez).) The defendant
bears the burden of demonstrating that there was an unreliable
identification procedure. (Ibid.) With respect to the first issue,
the question is whether anything caused defendant to “stand out”
from the others in a way that would suggest the witness should
select the defendant. (People v. Cunningham (2001) 25 Cal.4th
926, 989-990 (Cunningham); see also People v. Brandon (1995) 32
Cal.App.4th 1033, 1052 (Brandon) [“Generally, a pretrial
procedure will only be deemed unfair if it suggests in advance of
a witness’s identification the identity of the person suspected by
the police”]) With respect to the second issue, “there must be a
‘substantial likelihood of irreparable misidentification’ under the
‘totality of the circumstances’ to warrant reversal of a conviction
on this ground.” (Cunningham, supra, 25 Cal.4th at 990.)
“A claim that an identification procedure was unduly
suggestive raises a mixed question of law and fact to which we
apply a standard of independent review, although we review the
determination of historical facts regarding the procedure under a
deferential standard.” (People v. Clark (2016) 63 Cal.4th 522,
556-557.)
With respect to whether the photographic lineup was
unduly suggestive, defendant specifically claims his photograph
“stands out” from the other five photos because his photo depicts
“the darkest male wearing a white t-shirt and a very large

-- 7 of 29 --

8
distinctive tattoo under his left eye,” whereas “[t]he remaining
five photographs depict individuals with much lighter
complexions with smaller or no apparent tattoos.” Because of
these claimed differences, defendant argues the six-pack “ma[d]e
the resulting identification of [defendant] virtually inevitable.”
We have reviewed the photographic lineup in this case and
do not find it to be unduly suggestive. To the contrary, all six
individuals appear to be black males, have short hair and similar
facial hair, are of the same general age, height, weight and build,
and generally resemble one another. One male has light-colored
skin (picture 3); three males have skin that is darker than the
male in picture 3 (pictures 1, 4 and 5); one male has dark skin
(picture 6); and defendant (picture 2) has skin slightly darker
than the male in picture 6. All six males are wearing solid-
colored casual clothing: two of the individuals are wearing dark
or black t-shirts or sweatshirts (pictures 1 and 4); two are
wearing a grey hooded sweatshirt (pictures 5 and 6); one is
wearing a blue hooded sweatshirt (picture 3); and defendant
(picture 2) is wearing a white t-shirt. All six males have one or
more tattoos or similar markings on their faces. Contrary to
defendant’s claim, the facial tattoos or other markings appear to
be of similar size for all six males. The male in picture 1 and
defendant (picture 2) have a tattoo under their left eyes. The
male in picture 3 has tattoos above his left and right eyes. The
male in picture 4 has a tattoo between his eyebrows and appears
to have a tattoo under his right eye and a tattoo near the corner
of his left eye. The male in picture 5 has a tattoo above his right
eyebrow and appears to have a mark on the corner of his right
eye. The male in picture 6 appears to have a mark under his
right eye.

-- 8 of 29 --

9
Because we find defendant’s photograph is generally
similar to that of the other five photographs, we find no due
process violation. (People v. Johnson (1992) 3 Cal.4th 1183, 1217
(Johnson) [finding photographic lineup not unduly suggestive
where “[a]ll of the photographs were of Black males, generally of
the same age, complexion, and build, and generally resembling
each other”]; People v. St. Germain (1982) 138 Cal.App.3d 507,
520 [“[A] photographic identification is sufficiently neutral where
the persons in the photographs are similar in age, complexion,
physical features and build (small differences in stature do not
matter), and where the photograph of the accused does not stand
out”].)
The mere fact that defendant identifies some differences
between his photo and some of the other photos does not alter our
conclusion. In considering and rejecting due process challenges
to photographic lineups, our Supreme Court has observed that
“[b]ecause human beings do not look exactly alike, differences are
inevitable.” (Gonzalez, supra, 38 Cal.4th at p. 943.) Indeed, our
Supreme Court has stated explicitly that “there is no
requirement that a defendant in a lineup, either in person or by
photo, be surrounded by others nearly identical in appearance.”
(People v. Blair (1979) 25 Cal.3d 640, 661, superseded by statute
on other grounds, as stated in People v. Lissauer (1985) 169 Cal.
App. 3d 413, 497.) Rather, “[t]he question is whether anything
caused defendant to ‘stand out’ from the others in a way that
would suggest that the witness should select [defendant].”
(Gonzalez, supra, 38 Cal.4th at p. 943.) Here, defendant’s white
t-shirt, somewhat darker complexion, and facial tattoo do not
impermissibly suggest such a result, particularly in light of the
various similarities among all six photographs. (See, e.g., ibid.

-- 9 of 29 --

10
[photographic lineup not impermissibly suggestive, where
defendant was the only one wearing “gang-type” clothing,
because “nothing about defendant’s clothing suggested his
photograph should be selected”]; Cunningham, supra, 25 Cal.4th
at pp. 989, 990 [photographic lineup not suggestive where
defendant’s photograph “was similar to that of the others” in
several respects, even though defendant’s photograph was “the
only one in which the subject had three of the features noted by
the eyewitnessesglasses, a goatee, and a suit and tie”]; Johnson,
supra, 3 Cal.4th at p. 1217 [“Minor differences in facial hair
among the participants did not make the lineup suggestive”];
People v. Gordon (1990) 50 Cal.3d 1223, 1243 [lineup not unduly
suggestive where all participants “bore a general resemblance to
one another; although defendant was the tallest”].)
Because we hold that the photographic lineup was not
unduly suggestive and unnecessary, we do not need to determine
whether the identification was reliable under the totality of the
circumstances. (People v. Thomas (2012) 54 Cal.4th 908, 930;
Johnson, supra, 3 Cal.4th at p.1218.)2 Furthermore, because “we
2 We note several factors indicating Hernandez’s and
Tarver’s selection of defendant from the six-pack was reliable.
(See People v. Thomas, supra, 54 Cal.4th at p. 930 [listing
factors].) Both had a reasonable opportunity to observe the
suspect: Hernandez was “face-to-face” with the shooter and
observed him for “a few seconds”; Tarver saw the suspect on the
morning of the robbery as they nodded to one another, and he
was standing next to Hernandez during the robbery. Both
Hernandez’s and Tarver’s descriptions of the suspect to police
were accurate: Tarver described the suspect as black with darker
skin than Tarver and having a tattoo on his face; Hernandez said
the suspect had a tattoo under his left eye. A short time period
elapsed between the incident and the identifications: Hernandez

-- 10 of 29 --

11
conclude [defendant] has not met his burden of proving the
photographic lineup was unfair and unduly suggestive . . . [¶], his
contentions concerning the tainted in-court
identifications . . . also fall.” (Brandon, supra, 32 Cal.App.4th at
p. 1052.)
II. Defendant’s Statement to Officer Tenorio
Defendant contends his statement that “I fucked up on
Vernon” in response to Officer Tenorio’s question at the hospital
about how defendant was feeling was inadmissible because it was
obtained in violation of Miranda, supra, 384 U.S. at p. 436. We
disagree.
“To protect the constitutional privilege against self-
incrimination, the Miranda rule requires that before the police
may question the defendant during a custodial interrogation, the
defendant must be advised of the right to remain silent and to an
attorney and that any statements made may be used against him
or her in court.” (People v. Andreasen (2013) 214 Cal.App.4th 70,
86 (Andreasen).) “The prophylactic Miranda protections are
triggered only if a defendant is subjected to a custodial
interrogation. [Citation.] Interrogation refers not only to express
questioning, but also to its functional equivalent; i.e., “‘any words
or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are
and Tarver picked defendant’s photo from the six-pack on the day
of the robbery. Both witnesses indicated certainty about their
identification of the suspect: Hernandez testified that he selected
defendant’s photo because “[t]he person that is on the picture
resembles the one that stole from me and shot at me”; Tarver
testified that “Yes, definitely” the person in the photo he picked
committed the robbery.

-- 11 of 29 --

12
reasonably likely to elicit an incriminating response from the
suspect.’” [Citation.] However, not all police questioning of a
person in custody constitutes interrogation. [Citation.] . . . [¶]
[C]asual conversations or ‘small talk’ unrelated to the offense do
not typically constitute a Miranda interrogation. [Citations.]”
(Id. at pp. 86-87, fn. Omitted.) This is because interrogation for
purposes of the Miranda rule “refers to questioning initiated by
the police or its functional equivalent, not voluntary
conversation.” (People v. Gamache (2010) 48 Cal.4th 347, 387
(Gamache).) “Consequently, the police ‘may speak to a suspect in
custody as long as the speech would not reasonably be construed
as calling for an incriminating response.’ [Citation].” (Id. at
p. 388.)
“On appeal from the denial of a Miranda exclusionary
motion, we defer to the trial court’s factual and credibility
findings if supported by substantial evidence, and independently
determine whether the challenged statements were illegally
obtained.” (Andreasen, supra, 214 Cal.App.4th at p. 88.)
Here, there is no dispute defendant had not been given
Miranda warnings prior to declaring “I fucked up on Vernon.”
There is also no dispute that defendant was in custody at the
hospital when Officer Tenorio asked the question about how
defendant was feeling. Thus, as the trial court observed, “The
issue before the court, it seems to me, is whether . . . the question
was reasonably calculated to elicit incriminating information.”
As to that issue, the trial court continued, “And for a number of
reasons, really, I don’t think that’s the situation. There was no
discussion or any invitation on the part of the officer to engage
the defendant in any discussion relating to the case, other than

-- 12 of 29 --

13
his physical sensehis physical condition after this dog attack.”
We agree with the trial court.
Under the circumstances, while sitting at the hospital
awaiting treatment for a recent dog bite, the officer’s single
question about how defendant was feeling falls within the type of
“casual conversation” or “small talk” not subject to the Miranda
rule.3 In context, such a benign inquiry cannot reasonably be
viewed as calling for an incriminating response. (See Andreasen,
supra, 214 Cal.App.4th at p. 84 [while waiting for evidence
technician to arrive, lengthy conversation about defendant’s
tattoos, sports, his talent as a musician, music defendant liked,
gambling, where defendant grew up, and defendant’s pets did not
implicate Miranda]; People v. Mobley (1999) 72 Cal.App.4th 761,
790-792 (Mobley) [“small talk” to “lighten things up” during
transport of suspect to jail was not interrogation where there was
no showing the officer “should have known his casual remarks
would have encouraged [defendant] to make incriminating
statements”], overruled on another ground in People v. Trujillo
(2006) 40 Cal.4th 165, 181, fn. 3.)
3 Defendant’s reliance on People v. Elizalde (2015) 61 Cal.4th
523 is therefore misplaced. To begin with, Elizalde grappled with
whether routine booking questions may be subject to Miranda,
not small talk or casual conversations with the police. Moreover,
the Elizalde court held that booking questions about gang
membership or affiliation are subject to Miranda because they
are “reasonably likely to elicit an incriminating response
potentially exposing [the suspect] to prosecution for the crime of
gang participation [citations] and the enhanced punishment
[citations].” (Id. at p. 540.) There is no such reasonable
likelihood of an incriminating response to the question of how one
is feeling while waiting for treatment at the hospital.

-- 13 of 29 --

14
Indeed, defendant’s incriminating statement that “I fucked
up on Vernon” (in other words, did something bad in the vicinity
of the recycling center) was, as the trial court observed,
“somewhat of a non-sequitur.” Officer Tenorio’s innocuous
question, as the trial court found, was not designed to elicit
incriminating admissions. Moreover, under the circumstances,
we do not find Officer Tenorio “should have known” his question
“would have encouraged [defendant] to make incriminating
statements.” (Mobley, supra, 72 Cal.App.4th at p. 792.) Just
because defendant gave an incriminating answer to an unrelated
question renders neither the exchange an interrogation nor
defendant’s response inadmissible. (Andreasen, supra, 214
Cal.App.4th at p. 87 [“The fact that information gathered
from . . . routine questions or casual conversations turns out to be
incriminating does not alone render the statements
inadmissible”]; see also Gamache, supra, 48 Cal.4th at pp. 384,
388 [Miranda not implicated where murder suspect stated “I
fucked up. I knew better. I should have used a .45.” in response
to deputy’s inquiry about defendant’s prior military service].)
Accordingly, we find no error with respect to the admission
of defendant’s response to Officer Tenorio’s question at the
hospital.
III. Motions for New Trial
Defendant contends the trial court erred by denying his
motions for new trial, arguing that defendant’s trial counsel was
ineffective in two respects: (1) failing to present testimony from
witnesses Tiana Pratt, Houston Jones, and John Price; and
(2) “prevent[ing] [defendant] from testifying on his behalf.” We
find no error.

-- 14 of 29 --

15
A. Relevant Background
Defendant filed his first motion for new trial pro per on
April 19, 2016, raising numerous claims as the basis for a new
trial, including the failure to present testimony from Pratt,
Jones, Price, and defendant.4 The trial court denied that motion.
On January 18, 2017, defendant through his appointed counsel
filed a second motion for new trial, again contending trial counsel
was ineffective by failing to present testimony from the three
purported “alibi witnesses” and defendant. The trial court denied
the second motion.
In connection with his first motion, defendant submitted
declarations from Pratt, Jones, and Price. Pratt stated she was
with defendant on the date of the robbery, claiming defendant
“was never out of my sight (November 12, 2013), from between 6
or 6:30 am until sometime after the noon hour.” Pratt specifically
claimed she was with defendant at McDonald’s for breakfast
immediately after picking him up from his home that morning.
Jones stated that on “an unknown date,” he witnessed a robbery
at the recycling center on Avalon and recognized the robber as “a
member of the Avalon Crip street gang,” as opposed to defendant,
whom Jones met in jail and recognized from the neighborhood.
Price stated he saw defendant around 6:30 am at McDonald’s on
the day of the robbery. Moreover, Price stated that defendant’s
father is a member of “30 Piru, a Blood street gang,” that the
recycling center is located “deep into Crip territory,” and that,
accordingly, defendant “would be spotted there easily and killed
instantly” if he had been in the vicinity. Price also stated that
4 Defendant does not contend on appeal that the trial court
erred by denying the request for new trial with respect to any of
the other grounds raised in defendant’s pro per motion.

-- 15 of 29 --

16
defendant keeps some of his clothes at Price’s home, that Price
saw police carry out from his yard what appeared to be several
items of clothing, and that “I don’t believe it” that the police
recovered a “jacket” belonging to defendant on the street because
“the jacket was more likely found on my back porch.”
Defendant also submitted with the first motion his own
declaration in support of a new trial. In it, defendant stated that
he advised his trial counsel that he wanted to testify but that she
advised him against it, purportedly telling defendant he “had
already messed up the case enough and that she was not going to
let [defendant] mess it up anymore.” Defendant further
elaborated he would have testified, among other things: that he
never previously met Officer Melendez prior to the date of the
robbery, that he did not attempt to flee, that he left his black
sweater at Price’s house, that he did not rob or shoot Hernandez,
and that he did not make any incriminating statement to Officer
Tenorio at the hospital.
Seemingly in anticipation of the claims of ineffective
representation that might one day come, during a closed ex parte
hearing in the midst of trial, defendant’s trial counsel explained
her reasons for not having particular potential witnesses testify.
Concerning Jones, trial counsel stated: “I interviewed him, your
Honor. He claims that he was an eyewitness at an unknown
date, unknown time, to a robbery that occurred right at the
Rodriguez Recycling. He saw the whole thing and that
[defendant] wasn’t it, and the only reason they came into contact
was because they ran into each other in custody. [¶] I
interviewed him thoroughly about details of the case . . . . I
believe that he is not credible.” Indeed, trial counsel added: “I
actually interviewed [Jones] myself to make sure that the details

-- 16 of 29 --

17
that he talks about are not the details of this robbery. . . . I mean
I don’t know whether he’s making it up, or he witnessed another
robbery. I don’t know. But it ain’t this robbery.”5 Moreover, trial
counsel noted that “Jones, just so the court knows, has so many
prior felony convictions which would have then required that the
court give the evaluation, the credibility of the witness
instruction on prior convictions. And since there are no
prosecution witnesses with that background, I didn’t really want
him to be our star witness.” Similarly, with respect to Pratt, trial
counsel explained: “So I separately from my investigator, pretty
much interviewed her thoroughly. I also find her not credible
because there are details that she talks about that are
inconsistent with what she had told me previously. . . .”
In addition to finding Jones and Pratt not credible based on
having personally interviewed them, trial counsel explained that
she also made the tactical choice not to have either testify in light
of the prosecution’s evidence of a recorded jail call between
defendant and an unknown female made some time after
defendant’s arrest in this case. During that recorded call,
defendant referred to having someone named “Wang Thang” to
“get the jury” because “[m]aybe he can act like he seen the whole
thing go down.” Defendant told the female, “You know how to
come up with a story.” Thus, trial counsel told the court during
the closed hearing: “And I’m making a strategic decision not to
call [Jones] in light of the phone calls that are going to be played
which imply that [defendant] is trying to come up with some alibi
5 We note that, in this declaration, Jones states he saw such
robbery on an unknown date “about a year ago.” But Jones
signed his declaration on October 6, 2015, and the robbery in this
case occurred almost two years earlier on November 12, 2013.

-- 17 of 29 --

18
witnesses. I think that would be devastating to the case, so I’m
making a strategic call not to call them.” Indeed, trial counsel
reiterated a second time: “I’m just making a strategic decision
that in light of the phone call. These two witnesses, I think
would be detrimental. I wanted to put that on the record.”
As for defendant’s decision not to testify, during the closed
hearing, trial counsel also told the trial court: “I talked with
[defendant]. [Defendant] is going to assert his right to remain
silent and not testify.”
After hearing from trial counsel at the closed hearing, the
trial court explicitly confirmed with both defendant and his
counsel that they had discussed these matters and that
defendant agreed with them:
THE COURT: . . . [H]ave [you] discussed all of
these things with [defendant]?
[TRIAL COUNSEL]: Yes.
THE COURT: And this meets with his
approval?
[TRIAL COUNSEL]: Yes. Even though I
believe it’s counsel’s decision to make strategic calls.
THE COURT: It is. It is. But it’s always nice
if he understands and actually is on board as far as
these decisions are concerned. Strategically they’re
clearly solid assessments that you have made. Yes.
[¶] So he agrees?
DEFENDANT JELKS: (Nods head)
THE COURT: He indicated yes. Okay. All
right.

-- 18 of 29 --

19
Later on, with the prosecutor present but outside the
presence of the jury, the trial court again confirmed that
defendant had chosen not to testify:
THE COURT: There’s an issue regarding the
defendant testifying, where he’s
[TRIAL COUNSEL]: Very quickly, your Honor.
I advised him that he has a rightMr. Jelks, you need
to listen. He has a right, absolute right to testify, not
to testify, and, based on advice of counsel, has chosen
to remain silent, your Honor.
THE COURT. Okay. Anything further on
that?
[TRIAL COUNSEL]: He has to say “Yes.” Did
you say yes, Mr. Jelks?
DEFENDANT JELKS: Yes.
B. Analysis
When the trial court has denied a motion for new trial
based on an ineffective assistance of counsel claim, we apply a
standard of review applicable to mixed questions of law and fact,
upholding the trial court’s findings if supported by substantial
evidence and reviewing de novo the question of whether the
established facts demonstrate counsel was constitutionally
ineffective. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-
725.)
A trial court has “authority to grant a new trial on the
ground of inadequate representation of counsel,” even though it is
not one of the enumerated grounds in the statutory provision
(§ 1181) for ordering a new trial. (People v. Fosselman (1983) 33
Cal.3d 572, 577-578; People v. Callahan (2004) 124 Cal.App.4th

-- 19 of 29 --

20
198, 209.) To prevail on such a motion, defendant bears the
burden to “show that trial counsel failed to act in a manner to be
expected of reasonably competent attorneys acting as diligent
advocates” and that “counsel’s acts or omissions resulted in the
withdrawal of a potentially meritorious defense.” (People v.
Fosselman, supra, 33 Cal.3d at p. 581.) In cases where counsel’s
acts or omissions do not amount to the withdrawal of a defense,
the defendant may alternatively show “that it is reasonably
probable a determination more favorable to the defendant would
have resulted in the absence of counsel’s failings.” (Id. at p. 584.)
When evaluating a trial court’s decision on a defendant’s motion
for new trial, “[r]eviewing courts will reverse convictions on the
ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical
purpose for his act or omission.” (Id. at p. 581.) “In all other
cases, the conviction will be affirmed and the defendant relegated
to habeas corpus proceedings at which evidence dehors the record
may be taken to determine the basis, if any, for counsel’s conduct
or omission.” (Id. at pp. 581-582.)
On the record before us, we cannot conclude there was no
rational tactical purpose for trial counsel’s decision not to
introduce testimony from Pratt, Jones, Price, or defendant.
Indeed, with respect to Pratt and Jones, the record is replete with
reasonable justifications for trial counsel’s decision not to call
them as witnesses. Trial counsel explained on the record that
she found neither credible after interviewing them, was
particularly concerned about Jones testifying due to his
numerous felony convictions, and made the “strategic decision”
that their alibi testimony would be “devastating” and
“detrimental” to the case in light of the prosecution’s recording of

-- 20 of 29 --

21
defendant’s jail call suggesting defendant was in search of a
witness who could “come up with a story” to exonerate him. The
trial court agreed that these were “clearly solid assessments” by
trial counsel, and defendant had indicated he understood them
and was “on board” with such decisions.
Similarly, although trial counsel did not offer an
explanation for deciding not to call Price as a witness, it certainly
would have been a “solid assessment” for trial counsel to consider
Price’s testimony just as “devastating” to the defense case in light
of defendant’s jail call indicating he was looking for a witness to
“come up with a story.” Trial counsel might have reasonably
viewed as precisely such a “story” Price’s proffered testimony that
he happened to remember seeing defendant at McDonald’s on the
morning of the robbery and that he believed the police somehow
knew to take defendant’s sweatshirt from his yard so that they
could later plant it as evidence on the street. Further still, trial
counsel may have rationally determined that eliciting the
affiliation of defendant’s father with the Bloods street gang would
have been more inflammatory and prejudicial than any benefit it
might have provided as an explanation for why defendant would
not have committed the robbery in Crips territory.
As for defendant’s decision not to testify, there are any
number of rational reasons for trial counsel to have recommended
it. Even crediting defendant’s declaration that trial counsel told
defendant he “had already messed up the case enough” and
would “mess it up” more if he testified, we find that such advice
would have been sensible under the circumstances. Given that
defendant had already been caught on tape in a jail call
discussing how he would try to “get the jury” by finding a witness
to “come up with a story,” trial counsel might of have reasonably

-- 21 of 29 --

22
concluded defendant could have only made things worse by
providing them with his “story” that was not credible. This might
have been particularly so given defendant’s proffered testimony
was to, among other things, accuse Officer Melendez of lying
about knowing him, claim he did not attempt to flee despite
officers indicating otherwise, and argue that Officer Tenorio
made up defendant’s statement that “I fucked up on Vernon.”
Notably, whatever the reasons for trial counsel advising
defendant not to testify, defendant at the time found them
sufficiently sound to indicate twice on the record that he accepted
his counsel’s advice and would not testify. In similar
circumstances, where a defendant claimed he was deprived of his
right to testify due to counsel’s advice but first raised this with
the court only after his conviction as a ground for a new trial, the
court rejected the claim outright as untimely, explaining:
“Defendant did not apprise the court he desired to testify at any
time during the trial proceeding when the right could have been
accorded him, instead he waited until an adverse verdict was
rendered against him before advising the court he had really
wanted to take the stand after all, then demanded a new
trial─another chance before a new jury─on the ground his
counsel had ‘deprived’ him of his right. The obvious
unreasonableness of such an approach doubtless led to the
established rule that a defendant who desires to take the stand
contrary to the advice of his counsel must make proper and
timely demand.” (People v. Guillen (1974) 37 Cal.App.3d 976,
984-985.)
We similarly reject as untimely defendant’s request for a
new trial due to trial counsel’s purported erroneous advice
preventing him from testifying. Moreover, we find that the

-- 22 of 29 --

23
record before us provides no basis for concluding there was no
rational purpose for trial counsel’s decision not to elicit testimony
from Pratt, Jones, Price, or defendant and accordingly find no
error with respect to the trial court’s denial of defendant’s
motions for new trial based on ineffective assistance of counsel.
(People v. Fosselman, supra, 33 Cal.3d at pp. 581-582.)
IV. Pitchess Discovery
Defendant requests that we conduct an independent review
of the in camera proceedings undertaken by the trial court
pursuant to defendant’s Pitchess motion to determine whether
the trial court properly exercised its discretion in ordering the
disclosure of certain police personnel materials. The Attorney
General does not oppose the request.
On February 13, 2015, defendant filed a pretrial discovery
motion pursuant to Pitchess, supra, 11 Cal.3d 531 seeking the
discovery of confidential personnel records for Los Angeles Police
Department Officers Ralph, Ponce, Melendez, Gutierrez, Chu,
Ahn, Angert, and Tenorio. The trial court granted the motion
only as to Officers Chu, Ahn, Angert, and Tenorio, and “limited
to . . . falsification in reports, false testimony, anything of that
nature.”
The trial court undertook an in camera hearing, at which
the trial court reviewed confidential complaints concerning
Officers Chu, Ahn, Angert, and Tenorio. The trial court found
some of the material was discoverable and ordered the material
disclosed to defendant’s private investigator.
In accordance with defendant’s request, we have reviewed
the transcript of the in camera hearing constituting the “record of
the documents examined by the trial court” to determine whether

-- 23 of 29 --

24
the trial court abused its discretion in refusing to disclose
contents of the officer’s personnel records pursuant to Pitchess,
supra, 11 Cal.3d 531. (See People v. Mooc (2001) 26 Cal.4th 1216,
1229.) Having done so, we find no abuse of discretion in the trial
court’s decisions concerning which documents should have been
disclosed, with the exception of one complaint concerning Officer
Tenorio. (See People v. Samuels (2005) 36 Cal.4th 96, 110
[finding no abuse of discretion in declining to disclose certain
contents of the officer’s personnel files after independently
examining the record of materials].)
The custodian of records for the Los Angeles Police
Department characterized one complaint against Officer Tenorio
as concerning an “arrest without cause and false report.” After
reviewing the complaint, the trial court ordered no disclosure,
explaining only: “This [complainant] is a person with many
suspicious cases of being a criminal street gang member who’s
carrying a gun under suspicious circumstances.” We cannot tell
from this record whether the complaint concerned allegations
and/or findings of Officer Tenorio making a false report, which
might have borne on his credibility and been used to impeach
him. But even if we were to conclude the trial court abused its
discretion in not ordering disclosure of this complaint, defendant
would not be entitled to any resulting relief. (People v. Gaines
(2009) 46 Cal.4th 172, 182 [“To obtain relief, then, a defendant
who has established that the trial court erred in denying Pitchess
discovery must also demonstrate a reasonable probability of a
different outcome had the evidence been disclosed”].)
Here, Officer Tenorio did not testify at trial because the
parties stipulated that he asked defendant at the hospital how
defendant was feeling and that defendant responded that “I

-- 24 of 29 --

25
fucked up on Vernon.” Even assuming the disclosure of the
complaint would have led to defendant not entering into such a
stipulation, Officer Tenorio testifying as to his interaction with
defendant at the hospital, and the jury disbelieving the officer’s
account of what was said, we find no reasonable probability of a
different outcome at trial. Absent defendant’s incriminating
statement, there was other substantial and compelling evidence
of defendant’s guilt, including: (1) positive identifications by
Hernandez and Tarver of defendant as the robber; (2) recovery of
stolen items near defendant’s residence; (3) reports the robber
wore a black sweatshirt and the discovery of an abandoned black
sweatshirt in the vicinity with defendant’s DNA on it;
(5) defendant’s consciousness of guilt by fleeing from Officers
Melendez and Guttierez when first encountered, as well as from
Officer Schwab and police dog JoJo when later found hiding
(CALJIC No. 2.52; People v. Williams (2013) 56 Cal.4th 630, 679);
and (6) defendant’s recorded jail call indicating he needed a
witness to “come up with a story.” Therefore, even assuming
there was error with respect to the nondisclosure of the one
complaint, we would not disturb defendant’s convictions as a
result. (People v. Gaines, supra, 46 Cal.4th at pp. 182-183.)
V. Discretion to Strike the Firearm Enhancements
Defendant contends that, in light of Senate Bill 620, the
matter must be remanded to the trial court to allow it to exercise
its discretion to strike the firearm enhancements imposed in the
case. The Attorney General agrees, as do we.
Defendant’s sentence includes a 25-years-to-life
enhancement under section 12022.53, subdivision (d) on count 1
for personally discharging a handgun causing great bodily injury.

-- 25 of 29 --

26
At the time of defendant’s sentencing, trial courts did not have
the authority to strike firearm enhancements proven under
sections 12022.5 and 12022.53. (See §§ 12022.5, subd. (c),
12022.53, subd. (h).) Senate Bill 620, which became effective
January 1, 2018, removed that prohibition, stating in both
sections 12022.5 and 12022.53: “The court may, in the interest of
justice pursuant to Section 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise imposed by this
section. The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.” (Ibid.)
Because the judgment of conviction in defendant’s case was
not yet final when Senate Bill 620 took effect, the new statutory
amendment applies retroactively to defendant. (People v.
Arredondo (2018) 21 Cal.App.5th 493, 507.) Accordingly, we
reverse defendant’ sentence and remand for a new sentencing
hearing at which the trial court shall consider whether to strike
the firearm enhancements pursuant to its newfound discretion
conferred by Senate Bill 620.

-- 26 of 29 --

27
DISPOSITION
The judgment is affirmed in part and reversed in part. We
uphold the defendant’s convictions and remand the matter to the
trial court to allow it to exercise its discretion to strike the
firearm enhancements.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIN, J.*
I concur:
MOOR, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6, of the California
Constitution.

-- 27 of 29 --

The People v. Kelvin Jelks
B280897
BAKER, Acting P. J., Concurring in Part and Dissenting in Part
I concur in all but Part IV of the majority opinion (and the
associated introductory and dispositional language). In addition
to remanding to allow the trial court to consider exercising its
recently conferred discretion to strike the firearm enhancements,
I would remand for the further purpose of permitting the trial
court to augment the record with the Officer Tenorio material it
considered when ruling on defendant Kelvin Jelks’s motion
pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531
(Pitchess).
The majority correctly notes there is an ambiguity in the
record concerning one matter regarding Officer Tenorio’s
personnel file. Under the circumstances, I would adhere to the
“better solution” described by our Supreme Court in People v.
Mooc (2001) 26 Cal.4th 1216: “The uncertainty in the record
would have justified remanding the case to the trial court with
directions to hold a hearing to augment the record with the
evidence the trial court had considered in chambers when it ruled
on the Pitchess motion.” (Id. at p. 1231.) The prejudice analysis
the majority now engages in to avoid a remand of somewhat
broader scope is inadvisable when there is a ready means of
coming to a more informed conclusion regarding whether there
was any error at all. (See generally People v. Cahill (1993) 5

-- 28 of 29 --

2
Cal.4th 478, 503 [“[T]he improper admission of a confession is
much more likely to affect the outcome of a trial than are other
categories of evidence, and thus is much more likely to be
prejudicial . . .”].)
BAKER, Acting P. J.

-- 29 of 29 --