P. v. Vaughn

Filed 4/5/18 P. v. Vaughn CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTWOINE VAUGHN et al.,
Defendants and Appellants.
B277941
(Los Angeles County
Super. Ct. No. TA138408)
APPEAL from judgments of the Superior Court of Los
Angeles County. Eleanor J. Hunter, Judge. Affirmed in part,
remanded in part, and sentence modifications.
Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant Antwoine Vaughn.
Kelly C. Martin, under appointment by the Court of
Appeal, for Defendant and Appellant Davaughn Love.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, and David E. Madeo, Deputy Attorney
General, for Plaintiff and Respondent.
* * * * * *

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Defendant Davaughn Love (Love) drove defendant
Antwoine Vaughn (Vaughn) into rival gang territory, where
Vaughn got out of the car and starting shooting “wildly” at a man
standing on the sidewalk with his family; many of the bullets hit
the man as he tried to flee across an intersection, other bullets
hit a passing car. A jury convicted Love and Vaughn (collectively,
defendants) of attempted premeditated murder and shooting at
an occupied vehicle, and convicted Vaughn of being a felon in
possession of a firearm. Defendants attack their convictions as
being invalid due to errors in jury selection, with the jury
instructions, with the admission of evidence, and with the
sufficiency of the evidence as well as due to prosecutorial
misconduct. Their arguments lack merit. Defendants also attack
their sentences and seek a remand so the trial court can exercise
its discretion to strike their firearm enhancements. These
arguments have merit. Accordingly, we affirm defendants’
convictions, order one change to Vaughn’s sentence, and remand
to the trial court to consider whether to strike the firearm
enhancements underlying each defendant’s sentence.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In August 2015, Love and Vaughn were members of the
Blocc Crips, a subset of the Rolling 100’s street gang. At that
time, the Rolling 100’s gang was in the midst of a campaign to
retaliate against the Hoover Criminals gang for killing a high-
ranking Rolling 100’s member. Consistent with this campaign,
Love and Vaughn had filmed and uploaded onto YouTube a video
in which Vaughn, holding a rosary and a semiautomatic gun,
pretended to fire into a fleeing crowd and then reloaded his gun
while seated in a car.

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On a Saturday in mid-August 2015, Vaughn enlisted Love
to drive him into Hoover Criminals territory, and both
defendants enlisted Timothy Boykins (Boykins), a former Rolling
30’s member, to follow them in a separate car and videotape
them. Defendants told Boykins they were going to “beat down” a
rival gang member. However, when they got to rival gang
territory, Love stopped the car, and Vaughn got out and
approached a man standing on the sidewalk with a woman and
two children. After exchanging a few words, Vaughn pulled out a
gun and opened fire on the man’s back. Vaughn continued
“shooting wildly” as the man tried to flee into a nearby
intersection. All in all, 10 bullets hit the man (causing injuries to
his head, chest, leg, and hand), and three bullets struck a nearby
car that was driving through the intersection. Vaughn got back
into the car, and Love drove away. When Boykins later asked
about the shooting, Vaughn told him it was “Blocc business.”
Video cameras facing the intersection captured the
shooting, but did not provide a clear image of the shooter’s face.
However, the shooting victim was shown a six-person photo
spread and identified Vaughn as “the bitch that shot me.” Love’s
and Vaughn’s cell phones also put them at the location of the
shooting at the time of the shooting. The next day, Love sent a
text message to Vaughn, reminding him that “we gotta move that
gat,” which is slang for “gun.”
II. Procedural Background
The People charged both defendants with (1) attempted
premeditated murder (Pen. Code, §§ 187, subd. (a), 664),1 and
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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(2) shooting at an occupied vehicle (§ 246).2 The People also
charged Vaughn with being a felon in possession of a firearm
(§ 29800, subd. (a)(1)). The People alleged that all three crimes
were “for the benefit of, at the direction of, or in association with”
a criminal street gang. (§ 186.22, subd. (b)(4).) The People
further alleged that the attempted premeditated murder involved
personal use (as to Vaughn) and a principal’s use (as to Love) of a
firearm (§ 12022.53, subd. (d)). The People lastly alleged that
Love had two prior “strike” convictions within the meaning of our
Three Strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d));
that Love had served one prior prison term (§ 667.5, subd. (b));
and that Vaughn had served two prior prison terms (ibid.).
The case proceeded to a joint trial using separate juries.
Both juries were instructed on all charged offenses. Love’s jury
was also instructed that it could convict Love of the charged
offenses either (1) as a direct aider and abettor of those offenses,
and (2) as a natural and probable consequence of aiding and
abetting Vaughn in the commission of an assault or a conspiracy
to commit assault.
Vaughn’s jury found him guilty of all offenses and found all
enhancements to be true. So did Love’s.
The trial court sentenced Vaughn to prison for 55 years to
life plus 10 years. For the attempted premeditated murder
count, the court imposed a life sentence with a minimum 15-year
parole term plus 25 years for the firearm enhancement. For the
shooting at an occupied vehicle count, the court imposed a
consecutive life sentence with a minimum 15-year parole term.
2 The People also charged defendants with the attempted
premeditated murder of the car’s driver, but the People dismissed
that charge prior to trial.

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And for the felon-in-possession count, the court imposed a
consecutive 10-year sentence, comprised of a three-year base
term plus seven years for the gang enhancement.
The trial court sentenced Love to prison for 47 years to life.
For the attempted premeditated murder count, the court imposed
a life sentence with a minimum seven-year parole term plus 25
years for the firearm enhancement. For the shooting at an
occupied vehicle count, the court imposed a consecutive life
sentence with a minimum 15-year parole term. The court stayed
the gang enhancement for the attempted premeditated murder
count.
Each defendant filed a timely notice of appeal.
DISCUSSION
I. Jury Selection
Vaughn argues that the trial court erred in overruling his
objection that the prosecutor’s use of peremptory strikes to
remove four African-American female jurors violated Batson
v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler).
Although a prosecutor may exercise a peremptory challenge
to strike a prospective juror “‘for any reason, or no reason at all’
[citation]” (People v. Scott (2015) 61 Cal.4th 363, 387 (Scott)), he
or she may not use a peremptory challenge to “‘strike prospective
jurors on the basis of group bias—that is, bias against “members
of an identifiable group distinguished on racial, religious, ethnic,
or similar grounds.”’” (People v. Bell (2007) 40 Cal.4th 582, 596.)
Doing so violates a defendant’s federal right to equal protection
set forth in Batson, supra, 476 U.S. at page 88 and his state right
to a trial by a jury drawn from a representative cross-section of
the community under article I, section 16, of the California

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Constitution set forth in Wheeler, supra, 22 Cal.3d at pages 276
to 277. (Accord, People v. Gutierrez (2017) 2 Cal.5th 1150, 1157
(Gutierrez).)
A defendant bears the ultimate burden of showing a
constitutional violation (People v. Lenix (2008) 44 Cal.4th 602,
612-613 (Lenix), but courts employ a three-step, burden-shifting
mechanism in assessing whether a Batson/Wheeler violation has
occurred. The defendant must first “make out a prima facie case
by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose in the exercise of peremptory
challenges.” (Scott, supra, 61 Cal.4th at p. 383.) If the trial court
finds that the defendant has established this prima facie case,
the prosecutor must then “explain adequately the basis for
excusing the juror by offering permissible, nondiscriminatory
justifications.” (Ibid.) Lastly, the court must make a “‘sincere
and reasoned effort to evaluate the nondiscriminatory
justifications’” (People v. Williams (2013) 56 Cal.4th 630, 650),
and “decide whether” the prosecutor’s proffered reasons are
subjectively genuine or instead a pretext for discrimination.
(Scott, at p. 383; People v. Duff (2014) 58 Cal.4th 527, 548; People
v. Jones (2013) 57 Cal.4th 899, 917 (Jones).)
A. Pertinent Facts
1. Initial round of questioning
The trial court and counsel began voir dire by questioning
24 prospective jurors. Among those jurors were three African-
American women—namely, prospective Juror Nos. 2, 8, and 19.
Juror No. 2 indicated that she had previously served on a
jury in a criminal case that hung. In follow-up questioning, the
prosecutor asked Juror No. 2 (and others) if she would believe a
woman who was turning down a dinner invitation from a male

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coworker when the woman’s proffered reason for declining was
that she had to “wash [her] cat.” The juror said it was “possible”
the woman was telling the truth, and that her excuse about
washing her cat was “reasonable” “if she’s on Facebook, posting a
bunch of cat pictures.”
Juror No. 8 said she had “a negative experience” with law
enforcement because, a few years earlier, a police officer had been
“very aggressive” when he approached her parked car, including
“pull[ing] his gun out.” She also relayed that gang members had
jumped her brother and shot her cousin.
Juror No. 19 stated that she also had a “negative
experience” with law enforcement because, when she was 17 or
18 years old, she had been arrested for being present at a house
party where drugs were found. The charges against her were
ultimately dismissed. She reported that her brother was
currently facing a gun charge in Los Angeles County. She
further shared that she participated in an annual walk to
commemorate her slain cousin, and that police provide security
for the event.
2. First round of strikes
The prosecutor struck Juror No. 8 and two other jurors.
3. Second round of questioning
The court called 13 more prospective jurors for questioning.
One of those jurors, Juror No. 28, was an African-American
woman. During individual questioning, the juror said she would
“factor in” the “consequences” of any guilty verdict she rendered,
and would face a “moral dilemma” with herself in doing so.
4. Second round of strikes
The prosecutor exercised peremptory challenges against six
jurors, including Juror Nos. 19, 28, and 2.

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5. Defense objection, response, and court ruling
Vaughn objected on Batson/Wheeler grounds after the
prosecutor struck Juror No. 2. The trial court found that “a
prima facie case ha[d] been made” and asked the prosecutor to
provide her reasons for striking the four African-American female
jurors.
The prosecutor offered the following explanations:
As to Juror No. 8, the prosecutor pointed to (1) the juror’s
“bad experiences with law enforcement,” (2) her conduct after she
was excused as a juror, when she did not turn to face the court
when responding to the court’s question about a sport team’s
future prospects, and (3) the fact that she had “an issue with
gangs.”
As to Juror No. 19, the prosecutor pointed to (1) the juror’s
“negative experience with law enforcement,” and (2) her brother’s
pending gun charge.
As to Juror No. 28, the prosecutor cited the juror’s “moral
issue with finding judgment of someone.”
As to Juror No. 2, the prosecutor cited (1) the juror’s
participation on a criminal jury that hung, and (2) her act in
“volunteer[ing] new information” in the hypothetical question
about the workplace date, which the prosecutor found
problematic because she did not want jurors who would look
beyond the facts presented.
The trial court overruled Vaughn’s Batson/Wheeler
objection, finding that the prosecutor had “expressed race-neutral
bases for exclusion of each of the jurors” and that the “record”
reflected those reasons.

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B. Analysis
Vaughn challenges the trial court’s finding that the
prosecutor’s reasons for dismissing three of the jurors—Juror
Nos. 8, 19, and 2—was subjectively genuine and not a pretext for
discrimination (the third step).
We conclude that the trial court did not err. Two of the
jurors—Juror Nos. 8 and 19—indicated that they had negative
experiences with law enforcement, and the third—Juror No. 2—
was on a hung jury. These are valid, nondiscriminatory reasons
to strike prospective jurors. (Lenix, supra, 44 Cal.4th at p. 628
[“We have repeatedly upheld peremptory challenges made on the
basis of a prospective juror’s negative experience with law
enforcement”]; People v. Manibusan (2013) 58 Cal.4th 40, 78 [“the
circumstance that a prospective juror has previously sat on a
hung jury is a legitimate, race-neutral reason for exercising a
strike”].)
Vaughn levels five further challenges to the trial court’s
ruling.
First, Vaughn asserts that the ruling is deficient because a
trial court’s third-step ruling must be “sincere and reasoned,”
which requires the court to spell out its reasoning except in cases
where “neutral reasons for a challenge are sufficiently self-
evident.” (Gutierrez, supra, 2 Cal.5th at pp. 1171-1172.)
As explained above, the neutrality of the prosecutor’s
justifications for striking the three jurors at issue—based on their
prior negative experiences with law enforcement and serving on a
hung jury—is self-evident. (Accord, People v. Reynoso (2003)
31 Cal.4th 903, 919, 924 [“specific or detailed comments” “not
required” for “every instance in which a prosecutor’s race-neutral
reason” is being accepted].)

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Second, Vaughn contends that a juror’s negative experience
with one law enforcement official only means the juror has bad
feelings about that specific official, not all law enforcement
officials. This contention is at odds with the law noted above,
which does not limit prior bad experiences to experiences with a
specific officer and with other cases holding that even a juror’s
relative’s bad experiences provide a race-neutral reason to strike
that juror (see Jones, supra, 57 Cal.4th at p. 920).
Third, Vaughn asserts that the prosecutor’s additional
reasons for excusing Juror Nos. 8 and 2 are pretextual because
(1) as to Juror No. 8, the prosecutor could not rely on the juror’s
conduct after the strike to justify the strike, and (2) as to Juror
No. 2, the hypothetical question was confusing and effectively
asked every juror to draw inferences. We need not examine these
additional reasons because the prosecutor relied upon at least
one acceptable, race-neutral reason to excuse these jurors and
because nothing about the additional reasons calls into question
the neutrality of the otherwise valid reason for excusal.
Fourth, Vaughn points out that some of the jurors said they
could still be fair and impartial. Specifically, Juror No. 8 said she
could still be fair, and Juror No. 19 said she also had good
experiences with police (which presumably balanced out her bad
experience). However, it does not matter whether these jurors
could be fair because we are addressing peremptory challenges,
not challenges for cause. (People v. Mills (2010) 48 Cal.4th 158,
176 [“A party’s justification for exercising a peremptory challenge
‘“need not support a challenge for cause”’”].)
Lastly, Vaughn argues that the prosecutor’s striking of
Juror Nos. 8, 19, and 2 cannot withstand a comparative juror
analysis. Under such an analysis, we “ask whether the

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prosecutor’s justification for striking” a protected juror “applies
just as well to an otherwise similarly situated” nonprotected
“individual who is permitted to serve on the jury”; if so, this may
indicate a discriminatory motive. (Gutierrez, supra, 2 Cal.5th
at p. 1173.) Vaughn points to three examples. He asserts that
Juror No. 11’s answers regarding the cat-washing hypothetical
were no different than Juror No. 2’s. He is wrong: Juror No. 11
said it was reasonable to infer the woman’s cat-washing story
was untrue and, unlike Juror No. 2, Juror No. 11 did not invent
new facts to support his answer. Vaughn next asserts that Juror
No. 8’s and Juror No. 19’s negative experiences with law
enforcement were no different than responses from Juror Nos. 11,
21, 34, and 40. Again, he is wrong. Juror No. 11 said the police
did not show up when he was a victim; Juror No. 21 said he was
“pulled over randomly” by what appeared to be a gang unit; and
Juror Nos. 34 and 40 said police had arrested family members.
Unlike Juror Nos. 8 and 19, none of these other prospective jurors
stated that they viewed these experiences with law enforcement
as negative. Lastly, Vaughn contends that Juror No. 8’s anti-
gang sentiment is no greater than the anti-gang sentiment felt by
Juror Nos. 11 and 13 (who were personally jumped, or had family
members jumped, by gang members); all three, in Vaughn’s
estimation, had “issues with gangs.” But Juror Nos. 11 and 13
are not similarly situated to Juror No. 8 because they did not
have negative law enforcement experiences; thus, we cannot infer
racial animus from the prosecutor’s decision to strike Juror No. 8
but not the other two jurors.
II. Instructional Errors
Defendants raise two instructional errors: (1) Both
defendants contend that the trial court erred in not instructing

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the jury on the crime of negligent discharge of a firearm (§ 246.3)
as a lesser included offense to the crime of shooting at an
occupied vehicle; and (2) Love argues that the court erred in not
instructing the jury that he could be liable for attempted
premeditated murder as a natural and probable consequence of
aiding and abetting an assault or conspiracy to assault only if a
reasonable person in Love’s position would have reasonably
foreseen an attempted premeditated murder was a consequence
(as opposed to just an attempted murder). We review claims of
instructional error de novo. (People v. Manriquez (2005)
37 Cal.4th 547, 581, 584.)
A. Lesser Included Offense of Negligent Discharge
of a Firearm
A trial court errs in refusing to instruct on a lesser included
offense if “‘there is “substantial evidence” from which a rational
jury could conclude that the defendant committed the lesser
offense, and that he is not guilty of the greater offense.’” (People
v. Whalen (2013) 56 Cal.4th 1, 68, quoting People v. DePriest
(2007) 42 Cal.4th 1, 50.) “[T]he ‘substantial’ evidence
required . . . is not merely ‘any evidence . . . no matter how weak,’
[citation], but rather ‘“evidence from which a jury composed of
reasonable [persons] could . . . conclude[]”’ that the lesser offense,
but not the greater, was committed.” (People v. Cruz (2008)
44 Cal.4th 636, 664.) We independently review the substantiality
of evidence for these purposes, and do so by viewing it in the light
most favorable to the defendant. (People v. Millbrook (2014)
222 Cal.App.4th 1122, 1137; People v. Posey (2004) 32 Cal.4th
193, 218.)
The crime of negligent discharge of a firearm is a lesser
included offense of the crime of shooting at an occupied vehicle.
(People v. Ramirez (2009) 45 Cal.4th 980, 990 (Ramirez).) The

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crime of shooting at an occupied vehicle requires proof that the
defendant (1) “maliciously and willfully discharge[d] a firearm,”
(2) “at an . . . occupied motor vehicle.” (§ 246; Ramirez, at p. 985;
People v. Manzo (2012) 53 Cal.4th 880, 884-885 (Manzo).) The
crime of negligent discharge of a firearm requires proof that the
defendant (1) “‘unlawfully discharged a firearm,’” (2) “‘did so
intentionally,’” and (3) “‘did so in a grossly negligent manner
which could result in the injury or death of a person.’” (Ramirez,
at p. 986, quoting People v. Alonzo (1993) 13 Cal.App.4th 535,
538; § 246.3, subd. (a).)
Accordingly, whether a defendant is guilty of the greater
offense of shooting an occupied vehicle or the lesser offense of
negligent discharge of a firearm turns on whether he discharged
the firearm at an occupied vehicle. (Ramirez, supra, 45 Cal.4th
at p. 990.) For these purposes, a defendant discharges a firearm
“at” an occupied vehicle if (1) the defendant shoots “directly at”
an occupied vehicle (People v. Overman (2005) 126 Cal.App.4th
1344, 1355-1356 (Overman)), or (2) an occupied vehicle is “within
the defendant’s firing range” (Ramirez, at p. 990), at least if he
shoots “in close proximity to” an occupied vehicle “under
circumstances showing a conscious disregard for the probability
that one or more bullets will strike the [vehicle] or persons in or
around it” (Overman, at p. 1356; Manzo, supra, 53 Cal.4th at
p. 888; People v. White (2014) 230 Cal.App.4th 305, 316).
In light of this law, a trial court is required to instruct on
the lesser included offense of negligent discharge of a firearm
only if there is substantial evidence from which a rational jury
could conclude that the defendant did not fire his gun “in close
proximity to” an occupied vehicle under circumstances showing a
conscious disregard for the probability that one or more bullets

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would strike the vehicle. There was no such substantial evidence
here. Vaughn shot “wildly” as he unloaded his weapon at his
victim as the victim crossed an intersection designed for
vehicular traffic in a densely populated urban area. Not
surprisingly, three of the 13 bullets he fired hit a passing car.
Under these circumstances, no rational jury could conclude that
Vaughn did not shoot in the direction of and “in close proximity
to” occupied vehicles in a manner showing a “conscious disregard”
for the probability he would hit a moving (and hence occupied)
car.
Defendants essentially make two arguments. First and
chiefly, they assert that Vaughn did not fire directly at any car
(because he was shooting “wildly”). However, as explained above,
the definition of “at” is not so narrow. Second, defendants argue
that the bullets that hit the occupied car could have ricocheted off
of some other surface and thence into the car. Although we must
view the evidence in the light most favorable to the defendants
and, in so doing, draw all reasonable inferences from that
evidence, no evidence supports defendants’ ricochet theory; it is
therefore based on speculation, and “speculation is not
substantial evidence” (People v. Ramon (2009) 175 Cal.App.4th
843, 851). More to the point, the mechanism by which the three
bullets hit the occupied car—either directly or through a
ricochet—has no effect on whether Vaughn was “shooting wildly”
into an intersection and thus was firing “in close proximity to”
occupied vehicles with conscious disregard for hitting them.
B. Natural and Probable Consequences
A person is liable for a crime if he commits the crime
himself or if he aids and abets another in its commission. (§ 31.)
A person is liable as an aider and abettor if (1) he knows of the

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actual perpetrator’s unlawful purpose, (2) he, by his act or advice,
aids, promotes, encourages, or instigates the actual perpetrator’s
commission of the crime, and (3) he acts with the intent or
purpose to commit, encourage, or facilitate the actual
perpetrator’s commission of the crime. (People v. McCoy (2001)
25 Cal.4th 1111, 1118; People v. Prettyman (1996) 14 Cal.4th 248,
259 (Prettyman); People v. Beeman (1984) 35 Cal.3d 547, 561.)
When a person aids and abets a crime, he must have the same
intent as the actual perpetrator. (McCoy, at p. 1118 & fn. 1;
People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)
An aider and abettor is guilty not only of the crime he
intends to aid and abet, “‘“‘but also of any other crime the
perpetrator actually commits . . . that is a natural and probable
consequence of the intended crime.’”’” (People v. Rangel (2016)
62 Cal.4th 1192, 1228-1229; Prettyman, supra, 14 Cal.4th
at p. 261.) Before criminal liability will attach for a further crime
beyond the intended crime, the People must prove (1) that the
defendant aided and abetted the intended crime, and (2) the
further crime “was a natural and probable consequence of the
[intended] crime that the defendant aided and abetted.”
(Prettyman, at pp. 261-262.) In assessing the second element,
courts ask: Would a reasonable person in the defendant’s
circumstances recognize that the further crime was a reasonably
foreseeable consequence of the crime the defendant intended to
aid and abet? (People v. Chiu (2014) 59 Cal.4th 155, 165 (Chiu);
People v. Medina (2009) 46 Cal.4th 913, 920 (Medina); People
v. Gonzales (2001) 87 Cal.App.4th 1, 9-10; People v. Woods (1992)
8 Cal.App.4th 1570, 1587.) For these purposes, it is enough if the
further crime is a “‘“possible consequence which might reasonably
have been contemplated.”’” (Medina, at p. 920). The further

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crime “‘“need not have been a strong probability.”’” (Ibid.) Under
these standards, it does not matter “‘whether the aider and
abettor actually [subjectively] foresaw the [further] crime.’”
(Ibid.; Gonzales, at p. 9.)
Love asserts that the trial court erred because it instructed
the jury that the further crime that must be a reasonably
foreseeable consequence of assault or conspiracy to assault was
attempted murder, and not attempted premeditated murder.
This assertion is without merit because our Supreme Court’s
decision in People v. Favor (2012) 54 Cal.4th 868 (Favor)
explicitly rejected it, holding instead that “attempted murder—
not attempted premeditated murder—qualifies as the nontarget
offense to which the jury must find foreseeability.” (Id. at p. 879,
italics omitted.) Favor went on to explain that the jury must
nevertheless separately determine whether the attempted
murder itself was willful, deliberate, and premeditated. (Id. at
p. 880.)
Love contends that Favor was wrongly decided, and makes
two arguments in support of that contention.
First, he argues that our Supreme Court’s subsequent
decision in Chiu, supra, 59 Cal.4th 155, effectively overruled (or,
at a minimum, effectively undermined) Favor. We disagree.
Chiu held that “legitimate public policy considerations” dictated
that the greatest crime for which a defendant could be held liable
on a natural and probable consequences theory was second
degree murder, not first degree murder. (Chiu, at pp. 165-166.)
Chiu did not speak to the public policy considerations underlying
the crime of attempted murder. To the contrary, Chiu went out of
its way to distinguish and preserve Favor. (Chiu, at p. 163.)
Although, as Love points out, our Supreme Court has granted

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review in People v. Mateo, review granted May 11, 2016,
S232674, in part to decide whether Chiu was wrong to leave
Favor intact, we are bound by Chiu until the Supreme Court
overturns it. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455-456.)
Second, Love contends that the United States Supreme
Court’s decision in Alleyne v. United States (2013) 570 U.S. 99
(Alleyne) has overruled Favor, and that we need not wait for our
Supreme Court in Mateo to recognize that fact before discarding
Favor. (See People v. Flores (2007) 147 Cal.App.4th 199, 211.)
Specifically, Love asserts that Chiu distinguished (and upheld)
Favor in part because the premeditation element of attempted
murder was a “penalty provision” rather than an element of the
crime (Chiu, supra, 59 Cal.4th at p. 163), and that Alleyne—as
post-Alleyne decisions have recognized—undermines any
distinction between penalty provisions and elements when it
comes to what a jury must find beyond a reasonable doubt.
(Alleyne, at pp. 111-112 [facts that establish a mandatory
minimum sentence, despite dealing with the penalty, must be
found by a jury beyond a reasonable doubt]; People v. Banks
(2014) 59 Cal.4th 1113, 1152 [“The willful, deliberate, and
premeditated nature of an attempted murder is ‘“the functional
equivalent of an element”’ of the offense insofar as it increases
the punishment for an attempted murder.”].) Love’s argument is
valid as far as it goes, but it does not require us to vacate his
attempted murder conviction. That is because the duty to
present the question of whether an attempted murder was
premeditated to a jury is a function of Apprendi v. New Jersey
(2000) 530 U.S. 466, and has been recognized by our Supreme
Court as far back as 2004—long before Alleyne. (See People

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v. Seel (2004) 34 Cal.4th 535, 548.) In accordance with this long-
standing precedent, Vaughn’s jury was required to find—and, by
its guilty verdict, necessarily did find—that the attempted
murder in this case was premeditated, willful, and deliberate.
At bottom, all of Love’s arguments boil down to the
question whether the crime that must be reasonably foreseeable
to a reasonable person in Love’s position is attempted murder or
attempted premeditated murder. This alleged instructional error
affects, at most, this single element of the natural and probable
consequences doctrine. We need not definitively resolve the
continued validity of Favor (in light of Chiu or Alleyne) because
no matter how our Supreme Court resolves that question in
Mateo, any instructional error in this case was harmless beyond a
reasonable doubt. (People v. Merritt (2017) 2 Cal.5th 819.)
Where, as here, we are dealing with a trial court’s omission of an
element, we must ask: Was the evidence going to that omitted
element “overwhelming and uncontroverted”? (Id. at p. 832.)
Here, the answer to that question is “yes.” The jury heard
and rejected Love’s argument that the crime of attempted murder
was not a reasonably foreseeable consequence of the assault or
conspiracy to assault a Hoover Criminal gang member. In light
of this jury finding, the sole remaining question is whether the
still-missing element—that is, that the reasonably foreseeable
attempted murder would be willful, deliberate, and
premeditated—was supported by “overwhelming and
uncontroverted” evidence. It was. There is no evidence to
suggest that defendants’ actions would lead to an unplanned,
accidental, or spontaneous attempted murder. To the contrary,
defendants drove into rival gang territory in the midst of a
conflagration of gang warfare to carry out the very violence they

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enacted in a video posted online. On these facts, any error in the
trial court’s failure to require that the jury find the reasonably
foreseeable attempted murder be premeditated was harmless
beyond a reasonable doubt.
III. Evidentiary Error
Vaughn argues that the trial court erred in rejecting his
argument that the six-person photo spread presented to the
shooting victim violated due process because it was
impermissibly suggestive.
A. Pertinent Facts
A month after the shooting, police presented the shooting
victim with a photo spread containing six photographs, including
Vaughn’s. All six photos depicted African-American men in their
teens or 20’s; all six men had their hair in braids; and all six men
were wearing different clothing. The background color of the six
photos varied: Three had a darker gray background; one had a
light gray background; one had a light gray background with a
mix of blue; and one had an all-blue background. Four of the
men had closed mouths; one had a slightly open mouth; and one
was smiling. Five of the photos were exactly the same size; one
was cropped slightly smaller. The photograph of Vaughn was the
one that was slightly smaller in size, with the all-blue
background, and in which he was smiling.
B. Analysis
A defendant’s right to due process is violated when a court
admits evidence of a witness’s identification of that defendant if
(1) “‘“the identification procedure was unduly suggestive and
unnecessary”’” and, if so, (2) “‘“the identification itself was [not
otherwise] reliable under the totality of the circumstances.”’
[Citation.]” (People v. Clark (2016) 63 Cal.4th 522, 556.)

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In assessing whether the identification procedure is unduly
suggestive (the first step), courts ask whether the procedure
“suggests . . . the identity of the person suspected by the police”
“in advance of a witness’s identification.” (People v. Brandon
(1995) 32 Cal.App.4th 1033, 1052; People v. Ochoa (1998)
19 Cal.4th 353, 413 [“the state must, at the threshold, improperly
suggest something to the witness”].) A procedure is not unduly
suggestive just because the “suspect’s photograph is much more
distinguishable from the others in the lineup” (Brandon,
at p. 1052); to be unduly suggestive, the defendant’s photograph
“‘must “stand out” from the others in a way that would suggest
the witness should select him.’” (People v. Yeoman (2003)
31 Cal.4th 93, 124 (Yeoman).)
In assessing whether a witness’s identification is otherwise
reliable (the second step), courts look to the “totality of the
circumstances,” including (1) “the opportunity of the witness to
view the suspect at the time of the offense,” (2) “the witness’s
degree of attention at the time of the offense,” (3) “the accuracy of
his or her prior description of the suspect,” (4) “the level of
certainty demonstrated at the time of the identification,” and
(5) “the lapse of time between the offense and the identification.”
(People v. Cunningham (2001) 25 Cal.4th 926, 989.) It is unclear
whether we review suggestiveness claims de novo or deferentially
(People v. Johnson (1992) 3 Cal.4th 1183, 1216-1217 (Johnson).)
We will employ de novo review.
We conclude that the photo spread was not unduly
suggestive, but acknowledge that it approaches that line. As
Vaughn correctly observes, his photo has a different color
background, is cropped in slightly smaller size, and is the only
one with a suspect who is smiling. On these bases, it is certainly

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distinguishable from the others. However, our Supreme Court in
Johnson, supra, 3 Cal.4th 1183, ruled that a six-person photo
spread was not unduly suggestive due to “differences in
background color and image size among the various
photographs.” (Id. at p. 1217; see also People v. Hicks (1971)
4 Cal.3d 757, 764 [different background; not unduly suggestive];
accord, People v. Wimberly (1992) 5 Cal.App.4th 773, 790
[difference in clothing of persons in lineup; not unduly
suggestive].) The sole additional difference in this case is that
Vaughn is smiling, but this would not seem to “‘suggest the
witness should select him’” (Yeoman, supra, 31 Cal.4th at p. 124).
The distinctions in this case fall far short of other cases where the
photo spread was found to be unduly suggestive. (See People
v. Carlos (2006) 138 Cal.App.4th 907, 912 [defendant’s
photograph was the only one with a name and identification
number beneath it]; Passman v. Blackburn (5th Cir. 1981)
652 F.2d 559, 570 [defendant’s photograph was the only one in
color and with front view, whereas the other 11 were black and
white mug shots with front and side views].)
However, even if we were to assume the photo spread was
unduly suggestive, the shooting victim’s identification of Vaughn
was otherwise reliable. Even though the victim was first shown
the photo spread a month after the shooting, the victim had
ample opportunity to view Vaughn because they exchanged
words before Vaughn opened fire, and the victim looked up at
Vaughn and watched him as Vaughn continued to fire. The
victim’s description of the shooter’s race, complexion, hairstyle,
and build was accurate, and the victim was confident that
Vaughn was “the bitch that shot him.”

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IV. Sufficiency of the Evidence
Love assails the sufficiency of the evidence underlying his
conviction for shooting at an occupied vehicle, and particularly
attacks the sufficiency of the evidence underlying the jury’s
finding that a reasonable person in Love’s circumstances would
recognize that shooting at an occupied vehicle was a reasonably
foreseeable consequence of the assault or conspiracy to assault
that Love intended to aid and abet. (Chiu, supra, 59 Cal.4th
at p. 165.) In assessing the sufficiency of the evidence, we
“‘“review the whole record in the light most favorable to the
[verdict] to determine whether it discloses . . . evidence that is
reasonable, credible, and of solid value . . . from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.”’” (People v. Salazar (2016) 63 Cal.4th 214,
242.)
The jury’s shooting at an occupied vehicle verdict was
amply supported. Substantial evidence supported the jury’s
finding that Love intended to, and did, aid and abet an assault or
a conspiracy to assault: Love drove Vaughn and recruited
Boykins to videotape the “beat down” they anticipated, and Love
then drove Vaughn into rival gang territory with Boykins in tow.
Substantial evidence also supported the jury’s finding that a
reasonable person in Love’s position would have reasonably
foreseen that a shooting at an occupied vehicle might result. It is
well settled that a possible consequence of a fistfight between
gang members is an attempted murder. (Medina, supra,
46 Cal.4th at p. 922; People v. Olguin (1994) 31 Cal.App.4th 1355,
1376; People v. Godinez (1992) 2 Cal.App.4th 492, 499-500.) A
reasonable person in Love’s position could reasonably foresee the
possibility that Vaughn would “shoot wildly” at a rival gang

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member and, because the rival gang territory was in a densely
populated urban area, shoot “in close proximity to” an occupied
vehicle “under circumstances showing a conscious disregard for
the probability that one or more bullets will strike the [vehicle] or
persons in or around it.” (Overman, supra, 126 Cal.App.4th
at p. 1356; Manzo, supra, 53 Cal.4th at p. 885.)
V. Prosecutorial Misconduct
Love argues that the prosecutor committed three instances
of misconduct during closing argument. Love did not object to
two of the three instances, which would ordinarily bar him from
objecting on appeal. (People v. Crew (2003) 31 Cal.4th 822, 839
[claim for prosecutorial misconduct forfeited unless defendant
objects and seeks jury admonition].) Love nevertheless asks us to
reach the merits of those two claims on the ground that his trial
counsel was constitutionally ineffective for not objecting; we will
do so.
Conduct by a prosecutor may violate a defendant’s right to
due process under either the federal or state Constitutions.
Conduct violates federal due process if it “‘“‘infects the trial with
such unfairness as to make the conviction a denial of due
process.’ [Citation.]”’” (People v. Adams (2014) 60 Cal.4th 541,
568.) Conduct violates state due process “‘“‘only if it involves the
use of deceptive or reprehensible methods to attempt to persuade
either the trial court or the jury.’ [Citation.]”’” (Ibid.) These
standards must be considered against the backdrop that “‘[a]
prosecutor is given wide latitude to vigorously argue his or her
case and to make fair comment upon the evidence.’” (People
v. Dykes (2009) 46 Cal.4th 731, 768.) In evaluating a prosecutor’s
comments, we evaluate them in context (People v. Dennis (1998)
17 Cal.4th 468, 522) and ask “whether there was a reasonable

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likelihood that the jury construed or applied any of the remarks
in an objectionable fashion” (People v. Booker (2011) 51 Cal.4th
141, 184-185 (Booker)).
A. Diluting the Presumption of Innocence
In her rebuttal argument, the prosecutor argued that
defendant “started out, and he had the right to a fair trial and
the presumption of innocence. And as every witness came before
you, and as every piece of evidence that was put into this book got
presented, and all the different conclusions, reasonable
conclusions, that were able to be made from the evidence you
have been presented, that presumption of innocence went away,
and, as he sits here today, he is no longer an innocent man.”
Love objected, stating, “Until they go to the jury room and
deliberate.” The trial court stated, “That’s true. Ladies and
gentlemen, your decision is going to be made when you’re back in
the jury room.” The prosecutor then continued, “As he sits here
today, that presumption of innocence has been chipped away.”
When Love objected again, prosecutor then stated, “You have the
evidence to take back there and to consider and to apply it to the
law in this case.”
A prosecutor commits misconduct when she misstates the
law. (People v. Marshall (1996) 13 Cal.4th 799, 831.) As
pertinent here, the law is that “[a] defendant in a criminal action
is presumed to be innocent until the contrary is proved.” (§ 1096;
Booker, supra, 51 Cal.4th at p. 185.) Although it is the jury’s role
to determine through its deliberations whether the evidence
presented by the People has rebutted the presumption of
innocence (Booker, at p. 185; People v. Goldberg (1984)
161 Cal.App.3d 170, 189-190), a prosecutor does not misstate the
law by arguing that the evidence presented at trial has rebutted

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the presumption. (Booker, at p. 183 [arguing that the
presumption of innocence “should have left many days ago”];
People v. Panah (2005) 35 Cal.4th 395, 463 [arguing that the
evidence “stripped away” the presumption of innocence]
Goldberg, at p. 189 [arguing that “once the case has been proven
to you . . . [t]here is no more presumption of innocence” because
the defendant “has been proven guilty by the evidence”].) That is
all that the prosecutor did here when she argued that the
“evidence” at trial made the “presumption of innocence [go] away”
and “chipped away” at it. This argument is accordingly
distinguishable from the inappropriate arguments in People
v. Cowan (2017) 8 Cal.App.5th 1152, 1159, where the prosecutor
argued that the “presumption is gone” once “the charges are
read,” and in U.S. v. Perlaza (9th Cir. 2006) 439 F.3d 1149, 1169,
where the prosecutor argued that a “presumption of guilt”
“take[s] over” once the jurors retire to the jury room to deliberate.
B. Misstating the Burden of Proof
In her rebuttal argument, the prosecutor explained,
“Reasonable doubt is not beyond all possible doubt. We talked
about that. What’s reasonable, what’s rational. That’s what you
have to decide. And you have to reject what’s unreasonable.”
This argument did not misstate the law. A prosecutor may
not tell a jury that it can “find [a] defendant guilty based on a
‘reasonable’ account of the evidence” because doing so violates the
mandate that a verdict rest upon a finding of guilt beyond a
reasonable doubt. (People v. Centeno (2014) 60 Cal.4th 659, 673,
italics omitted.) However, a prosecutor may urge the jury to
“‘decide what is reasonable to believe versus unreasonable to
believe’ and to ‘accept the reasonable and reject the
unreasonable’” because that urging does not dilute the

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prosecution’s burden of proof. (People v. Romero (2008)
44 Cal.4th 386, 416.) The prosecutor’s argument in this case falls
into the latter category, and not the former: She implored the
jury to “decide” “[w]hat’s reasonable” and to “reject what’s
unreasonable”; at no point did she state that any reasonable
account of the evidence satisfied the People’s burden of proof
beyond a reasonable doubt.
C. Reliance on Sympathy
The prosecutor began her initial closing argument, stating,
“As the People have proved this case beyond a reasonable doubt
to you, all that means is that I have proven to you that there is
violence like this in our society and that you can be struck by it at
any time, unexpectedly, like the victims in our case.” She went
on to argue that the shooting victim and the driver of the car that
was hit in this case will “never be the same for the violence that
they have suffered and experienced; and none of us will be the
same because we know that this kind of violence is out there.”
As a general rule, “appeals to the sympathy or passions of
the jury are inappropriate at the guilt phase of a criminal trial.”
(People v. Fields (1983) 35 Cal.3d 329, 362.) This is why it is
misconduct for prosecutors to urge the jury to view a crime
through the eyes of the victim. (E.g., People v. Martinez (2010)
47 Cal.4th 911, 957.) However, this line is not crossed simply by
pointing out that the charged crime is part of a broader pattern of
violence that harms society as a whole. (E.g., People v. Rundle
(2008) 43 Cal.4th 76, 162.) And even if we assume the prosecutor
crossed the line of permissible advocacy, her comments were brief
and isolated in the context of a broader argument that focused on
Love’s culpability for the charged crimes. (Ibid.) The
prosecutor’s comments were also accompanied by jury

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instructions telling the jury not to “let bias, sympathy, prejudice,
or public opinion influence [their] decision” and not to treat the
attorneys’ arguments as evidence. Once we factor in the
presumption that jurors follow the instructions they are given
(People v. Boyette (2002) 29 Cal.4th 381, 453), any reference to
the broader impact of defendants’ conduct did not rise to the level
of a prejudicial violation of federal or state due process.
VI. Sentencing Issues
A. Gang Sentence for Vaughn’s Felon-in-Possession
Count
The trial court imposed a seven-year sentence for the gang
enhancement when it sentenced Vaughn on the felon-in-
possession of a firearm count. Where, as here, the underlying
crime is neither a violent nor serious felony (§§ 667.5, subd. (c)
[felon-in-possession of firearm not a “violent felony”], 1192.7,
subd. (c) [felon-in-possession of firearm not a “serious felony”]),
the maximum sentence the trial court can impose for the gang
enhancement is four years, not seven. (§ 186.22, subd. (b)(1)(A).)
The seven-year sentence is therefore in excess of the maximum
sentence authorized by statute. Accordingly, Vaughn’s sentence
for the felon-in-possession count must be modified to reduce the
gang enhancement to four years.
B. Remand for Senate Bill No. 620 Hearing
Defendants have asked for a remand for the trial court to
consider its newfound discretion, pursuant to Senate Bill No. 620,
whether to strike the previously mandatory firearm enhancement
of 25 years underlying their attempted premeditated murder
convictions. (§ 12022.53, subd. (h), as amended by Stats. 2017,
ch. 682, § 2.) Because this statutory amendment mitigates
punishment by granting discretion to strike a previously un-
strike-able enhancement (In re Estrada (1965) 63 Cal.2d 740,

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748-750; People v. Francis (1969) 71 Cal.2d 66, 75-76), defendants
whose convictions are not yet final—like the defendants in this
case—are entitled to its benefit.
VII. Cumulative Error
Love argues that his convictions must be vacated because
the cumulative effect of all of the errors he alleges so warrants.
Because his individual claims lack merit, their cumulative impact
does not warrant reversal. (People v. McWhorter (2009)
47 Cal.4th 318, 377.)
DISPOSITION
The case is remanded for resentencing to allow the superior
court to consider whether the enhancements under section
12022.53 should be stricken pursuant to section 1385.
Vaughn’s judgment is modified as follows:
The portion of the judgment imposing a seven-year gang
enhancement for possession of a firearm by a felon is modified to
a four-year term, and the trial court is ordered to prepare and
forward to California’s Department of Corrections and
Rehabilitation an abstract of judgment modified accordingly.
In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ

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