P. v. Melara

1
Filed 2/5/20 P. v. Melara CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
OSKAR ANTHONY MELARA,
Defendant and Appellant.
B289019
(Los Angeles County
Super. Ct. No. BA427561)
APPEAL from a judgment of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, and Paul M. Roadarmel, Jr. and William N.
Frank, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

-- 1 of 29 --

2
Defendant Oskar A. Melara appeals from his second degree
murder conviction. The conviction rested on the theory that
defendant aided and abetted Gustavo Luna, defendant’s fellow
gang member, who shot and killed Christopher Hernandez, a
rival gang member. This court previously affirmed Luna’s
conviction for first degree murder. The parties agree that the
critical issue at defendant’s trial was whether defendant knew
Luna would shoot Hernandez.
During defendant’s trial, a prosecution gang expert
testified about the nature of gangs and more specifically, about
conduct involving rival gang members. The gang expert also
answered a lengthy hypothetical question, which tracked the
evidence in the case. Most of the gang expert’s testimony is
unchallenged on appeal.
Defendant, however, argues that the gang expert—in the
context of answering a hypothetical question about a hypothetical
gang member—should not have opined as to defendant’s
knowledge of Luna’s conduct, defendant’s intent, and defendant’s
guilt. For the reasons set forth below, defendant’s argument is
based on a faulty premise, to wit, that the expert opined on
defendant’s knowledge, intent, or guilt. The record reveals that
the expert merely answered a question about a hypothetical gang
member. As also set forth below, under controlling authority
from our Supreme Court, asking such a hypothetical was not
error.
On appeal, defendant also argues that the trial court erred
in denying his motion for a new trial based on alleged jury
misconduct. Defendant, however, has failed to demonstrate error
because he identifies no admissible evidence supporting his
theory of jury misconduct. Defendant’s related argument that his

-- 2 of 29 --

3
trial counsel was ineffective in failing to identify a juror’s alleged
concealment of information during voir dire is unsupported by
the record. There was no evidence of concealment and therefore
no evidence that counsel was ineffective.
Defendant’s remaining challenges are to his sentence. He
argues that his trial counsel rendered ineffective assistance by
failing to provide the trial court with a “mitigation report” before
the court pronounced its sentence. Even if defense counsel
did not timely provide the report, defense counsel summarized
the main factors in mitigation both in her sentencing
memorandum and at the sentencing hearing. Any failure to
provide the more detailed report thus did not prejudice
defendant.
Defendant argues that the trial court misunderstood
the extent of its discretion in imposing a Penal Code
section 12022.53, subdivision (d) firearm enhancement.1
Appellate courts disagree on whether the trial court has
discretion to impose an uncharged lesser enhancement or has
discretion only to impose or strike the charged enhancement.
(People v. Morrison (2019) 34 Cal.App.5th 217 (Morrison)
[holding that an uncharged lesser enhancement may be imposed];
People v. Tirado (2019) 38 Cal.App.5th 637, 642–644 (Tirado),
review granted Nov. 13, 2019, S257658 [holding that the trial
court is limited to imposing or striking the charged
enhancement].) Pending guidance from our Supreme Court, we
conclude Tirado states the better rule, under which there was no
error here. (People v. Yanez (Jan. 21, 2020, E070556)
___ Cal.App.5th ___ [2020 D.A.R. 443].)
1 Undesignated statutory citations are to the Penal Code.

-- 3 of 29 --

4
Finally, under the facts of this case, defendant
demonstrates no error in imposing fees, fines, and assessments
without holding an ability to pay hearing. (People v. Caceres
(2019) 39 Cal.App.5th 917 (Caceres).) We affirm the judgment.
PROCEDURAL BACKGROUND
The People charged defendant with the murder of
Hernandez. The People further alleged that the murder was
committed for the benefit of a gang within the meaning of
section 186.22, subdivision (b)(4) and that a principal personally
used and intentionally discharged a firearm within the meaning
of section 12022.53, subdivisions (b), (c), (d), and (e)(1). The
trial court later dismissed the section 12022.53, subdivision (b)
and (c) allegations on the People’s motion.
The prosecutor argued that the key issue in the case was
whether defendant aided and abetted Luna. Defense counsel
seconded this assessment: “[T]he principal question . . . is did
Oskar Melara aid and abet” Luna. Defense counsel argued that
it was reasonable Melara did not know that Luna would shoot
Hernandez.
Jurors convicted defendant of second degree murder and
found that the crime was committed for the benefit of a gang and
that a principal intentionally discharged a firearm within the
meaning of section 12022.53, subdivision (d).
The trial court denied defendant’s motion for a new trial
based on alleged juror misconduct. The trial court sentenced
defendant to 15 years to life for the second degree murder and
25 years to life for the section 12022.53, subdivision (d)
enhancement. The court denied defendant’s request to strike the
enhancement in the interest of justice. The court ordered that
defendant pay a $40 court operations assessment (§ 1465.8,

-- 4 of 29 --

5
subd. (a)(1)) and a $30 criminal conviction assessment
(Gov. Code, § 70373). The court also ordered that defendant pay
a $300 restitution fine pursuant to section 1202.4, subdivision (b)
and a separate $300 parole revocation fine, which it suspended
unless parole is revoked (§ 1202.45). Finally, the court ordered
that defendant pay victim restitution in the amount of
$12,420.50. Defendant indicated there was “[n]o objection” to the
$12,420.50 victim restitution. Defendant did not request or
receive an ability to pay hearing prior to the imposition of the
above-referenced restitution fine and assessments. Defendant
timely appealed.
FACTUAL BACKGROUND
On June 5, 2014, Hernandez, a Rebels 13 gang member,
and his parents attended his sister’s middle school graduation.
Just before 11:00 a.m., the family was walking to a bus stop when
Luna, a La Mirada Locos gang member, shot Hernandez multiple
times. Hernandez died of multiple gunshot wounds.
Shortly before the shooting, Hernandez chased defendant,
who was riding a bicycle. Defendant pushed Hernandez.
Defendant and Hernandez made signs symbolizing their
respective gangs. Hernandez removed his shirt revealing a
Rebels 13 gang tattoo. Hernandez asked defendant to fight one
on one.
A few minutes before Luna shot Hernandez, defendant
called Luna.2 Evidence from cell phone records indicated that
defendant called Luna twice (at 10:51 a.m. and at 10:55 a.m.);
2 Defendant used his girlfriend’s phone to make these
calls.

-- 5 of 29 --

6
the records did not reveal whether the two spoke or the content of
any conversation.
Immediately before Luna shot Hernandez, Luna drove to
defendant and stopped to talk to him. Luna then drove up to
Hernandez, who was standing on the sidewalk. Luna shot
Hernandez and drove away. Cell phone records suggest that
defendant entered Luna’s car shortly after the shooting because
Luna’s phone and the phone defendant was using traveled on the
same path at the same speed to Oceanside, California.
1. Surveillance Video
Video surveillance of the crime scene showed Hernandez
and his family walking near a Del Taco restaurant on Sunset
Boulevard. It further showed Hernandez chasing defendant, who
was riding a bicycle. Hernandez then returned to his family, and
they continued walking together.
Surveillance video depicts the following sequence of events:
defendant is holding a phone to his head while riding his bicycle.
Shortly afterwards, a black car enters the Del Taco parking lot;
defendant approaches the black car; and defendant points
towards Hernandez twice. The black car pulls up to Hernandez
and his family, and the driver shoots Hernandez. It appears that
defendant is present when the driver shoots Hernandez.
Hernandez falls backwards to the ground.
2. Gang Evidence
Officer Mark Austin testified for the prosecution.
Officer Austin opined that Luna was a member of the La Mirada
Locos gang. Austin believed that Luna was a “low-level member”
of the La Mirada Locos gang. Austin opined that defendant was
a “mid-level” member of the La Mirada Locos gang.

-- 6 of 29 --

7
Officer Austin testified that a person is qualified to join a
gang when that person “put[s] in work” or commits crimes “that
benefit[ ] the gang.” Gangs, including the La Mirada Locos gang,
claim territory and are willing to fight to protect their territory.
Violence is often the consequence of entering a rival gang’s
territory. A gang member who disrespects a rival’s territory may
be killed. Austin observed cases in which a gang member would
“set up a killing” to protect gang territory. Austin recalled five to
seven such cases. La Mirada Locos gang members use hand
signs to threaten rival gang members. The location where Luna
shot Hernandez is in an area claimed by the La Mirada Locos
gang.
The two gangs were rivals. Photographs on Facebook
showed defendant using gang signs. Defendant also wore attire
commonly associated with the La Mirada Locos gang. Photos
also showed defendant with other La Mirada Locos gang
members. Police identified defendant as a La Mirada Locos gang
member on field identification cards, and defendant admitted to
officers that he had been arrested for gang-related crimes. The
prior offense involved a vandalism charge.
The La Mirada Locos gang shared a border with the
Rebels 13 gang. Officer Austin noted that Hernandez had a large
tattoo stating “Rebels 13” on his chest. Austin testified that
Hernandez had to “earn” that tattoo by committing crimes or
raising money for his gang. Displaying a tattoo to a rival gang
member is an example of disrespecting the rival. According to
Officer Austin, a Rebels 13 gang member who enters another
gang’s territory is demonstrating “boldness.”
The prosecutor asked Officer Austin the following
hypothetical question: “A gang member in Rebels 13 and his

-- 7 of 29 --

8
family are walking down a busy public street within a territory
claimed by the La Mirada Locos street gang at approximately
10:45 to 10:50 in the morning. As the Rebels 13 gang member is
walking, he’s pushed and taunted by a La Mirada Locos gang
member who is riding a bicycle and an argument starts between
the Rebels 13 and La Mirada Locos gang member. The Rebels 13
gang member takes off his shirt . . . and chases the La Mirada
Locos gang member who remains on his bicycle. After being
chased by the Rebels 13 gang member, the La Mirada Locos gang
member on the bicycle makes a phone call. A few minutes later a
La Mirada Locos gang member or associate arrives and stops
near the victim. The La Mirada Locos gang member is the driver
and sole occupant in this vehicle. There’s a brief non-verbal
communication between the La Mirada Locos gang member on
the bicycle towards the driver and the Rebels 13 gang member.
While the Rebel[s] 13 gang member is distracted by and looking
at the La Mirada Locos gang member on the bicycle, the La
Mirada Locos gang member in the vehicle drives up next to the
Rebel[s] 13 gang member and immediately and without warning
or any interaction shoots the Rebel[s] 13 gang member several
times. The La Mirada Locos gang member on the bicycle watches
the shooting from a short distance away and then both the La
Mirada Locos gang members together flee the area.”
Officer Austin was asked how the crime benefits the
La Mirada Locos gang, how it benefits the shooter, and how it
benefits the gang member on the bike. With respect to the
hypothetical gang member on the bike, Austin testified: “He is
seen as someone that [sic] has had a confrontation and he’s not
going to back down. And he obviously did [not] have the means
to carry out the violence at the time, but he took immediate

-- 8 of 29 --

9
action and solved what he saw as the problem. So even though
he may not be the person shooting the gun, he’s still attaining
that level of respect from his fellow gang members and moving up
[in the gang hierarchy]. And I think that is proof, just based on
this hypothetical, the fact that he didn’t call someone to get in a
fight with him. If that had happened, he wouldn’t have ridden
away and watched. He would have gotten involved in the fight.
If he wanted to fight someone, he would have gotten out. The guy
would have gotten out of the car and they both would have
[fought the rival gang member]. Now they have two-on-one odds
and have been involved in a physical altercation.” The trial court
overruled defense counsel’s objection of “[s]peculation” made at
the conclusion of the above summarized testimony.
Officer Austin continued his testimony as follows: “So my
opinion, based on those facts, is that he [the hypothetical gang
member on a bicycle] knew exactly what was about to happen
and it happened. It was carried out. What he wanted was
carried out. Now they both [the hypothetical shooter and the
hypothetical bicycle rider] are rising in their own personal ranks
within the gang.” Defense counsel did not object to this
testimony. During cross-examination, defense counsel asked
whether Officer Austin assumed that the hypothetical shooter
and bicycle rider had a conversation. Officer Austin eventually
testified that he did make this assumption.
Martin Flores testified as a defense gang expert. He opined
that defendant was not a gang member. Flores testified that he
could not determine whether the hypothetical shooter and
hypothetical bicycle rider acted for the benefit of the gang
because “[i]t’s not clear what initiated that conflict. If the conflict

-- 9 of 29 --

10
was a gang conflict. Whether the conflict was personal. Was it a
dispute. Which one started what.”
DISCUSSION
A. Defendant Demonstrates No Error In Admission of
the Gang Expert’s Answer to a Hypothetical
Question
Defendant argues that the prosecution’s gang expert
improperly testified as to defendant’s knowledge, intent, and
guilt. According to defendant, Officer Austin “offered his opinion
and conclusions about the knowledge and intent elements of
murder and the aiding and abetting theory of liability for murder,
and how the issue of guilt should be decided.” Defendant further
contends the testimony not only concerned the ultimate issue in
the case, but also lessened the prosecution’s burden of proof.
Neither the record nor controlling authority supports defendant’s
argument.
As noted above, Officer Austin testified: “So my opinion,
based on those facts, is that he [the hypothetical gang member on
a bicycle] knew exactly what was about to happen and it
happened. It was carried out. What he wanted was carried out.
Now they both [the hypothetical shooter and the hypothetical
bicycle rider] are rising in their own personal ranks within the
gang.” Contrary to defendant’s argument, Officer Austin was not
asked, and offered no opinion about defendant’s knowledge,
intent, or guilt. Instead, the evidence defendant challenges
involved the prosecutor asking Officer Austin whether a
hypothetical gang member would benefit from certain
hypothetical conduct. Under controlling case law, the distinction

-- 10 of 29 --

11
between a hypothetical gang member and the defendant gang
member is critical.
People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew)
provides the strongest support for defendant’s position. In
Killebrew, the gang expert testified that “when one gang member
in a car possesses a gun, every other gang member in the car
knows of the gun and will constructively possess the gun.”
(Id. at p. 652.) Although the record in that case was unclear as
to whether the expert was responding to a hypothetical question,
the appellate court held that the expert testimony was improper
because it concerned an “ultimate issue,” that is, “the subjective
knowledge and intent of each occupant in each vehicle.”
(Id. at p. 658.)
In People v. Vang (2011) 52 Cal.4th 1038 (Vang), our high
court recognized Killebrew has “limited significance” because
Killebrew did not distinguish an expert’s opinion about the
knowledge of hypothetical persons from the knowledge of “specific
persons.” (Vang, at p. 1047.) Vang reasoned that experts are
permitted to opine on ultimate issues and in doing so, do not
usurp the jury’s role as fact-finder. “[E]xpert testimony is
permitted even if it embraces the ultimate issue to be decided.
(Evid. Code, § 805.) The jury still plays a critical role in two
respects. First, it must decide whether to credit the expert’s
opinion at all. Second, it must determine whether the facts
stated in the hypothetical questions are the actual facts, and the
significance of any difference between the actual facts and the
facts stated in the questions.” (Vang, at pp. 1049–1050.)
Similarly, in People v. Gonzalez (2006) 38 Cal.4th 932
(Gonzalez), our high court concluded there was no error in
admitting a gang expert’s opinion on whether a gang member

-- 11 of 29 --

12
would feel intimidated if he testified against a fellow gang
member. Holding that Killebrew “has no relevance here,”
Gonzalez observed, “[A]nswer[ing] hypothetical questions based
on other evidence the prosecution presented . . . is a proper way of
presenting expert testimony.” (Id. at p. 946, italics added.) The
Gonzalez court further reasoned, “It is true that [the expert’s]
opinion, if found credible, might, together with other evidence,
lead the jury to find the witnesses were being intimidated, which
in turn might cause the jury to credit their original statements
rather than their later repudiations of those statements. But this
circumstance makes the testimony probative, not inadmissible.”
(Id. at p. 947.)
Vang added: “To the extent Killebrew . . . purported to
condemn the use of hypothetical questions, it overlooked the
critical difference between an expert’s expressing an opinion in
response to a hypothetical question and the expert’s expressing
an opinion about the defendants themselves.” (Vang, supra,
52 Cal.4th at p. 1049.) Defendant also fails to recognize this
analytic distinction.
As previously noted, Officer Austin did not opine on
defendant’s knowledge. Instead, he responded to a hypothetical
based on facts in evidence on whether a hypothetical gang
member’s conduct would have benefited the gang. Simply put,
defendant’s argument simply ignores the difference between
himself and the hypothetical gang member discussed in
Officer Austin’s testimony.3
3 The Attorney General argues that defendant forfeited his
challenge to admission of Officer’s Testimony based on Killebrew
by failing to raise that specific objection below. Defendant
counters that if we find forfeiture, then defense trial counsel was

-- 12 of 29 --

13
B. Defendant Demonstrates No Error in the Denial of
His Motion for New Trial Based on Alleged Jury
Misconduct
After trial, defendant moved for a new trial based on
alleged jury misconduct. The trial court denied his motion.
Defendant argues that the trial court erred in denying his motion
for new trial or setting the matter for an evidentiary hearing. We
first provide additional background and then discuss defendant’s
argument.
1. Additional Background
After the verdict, defense counsel moved for a new trial on
the ground of juror misconduct. Defendant relied on Juror No.
44’s posttrial affidavit in which she averred:
● “During the deliberations process, I observed that the
jurors made an assumption of guilt based on the fact that there
was a gang allegation in the case.”
● “Based on how the jurors spoke, I believed that many
jurors already had their mind[s] made up as to guilt because of
the gang element, even before deliberations began.”
● “The jurors used the ‘but for’ phrase as a standard in
determining guilt instead of applying the reasonable doubt
standard.”
● “One juror . . . used her personal experiences growing up
with gangs during deliberations.”
ineffective in failing to object on the basis that admitting the
testimony invaded the province of the jury, as opposed to making
merely a speculation objection. Given our ruling on the merits,
we do not address these issues.

-- 13 of 29 --

14
● “One juror . . . was a bully and was the worst. He
created hostility in the jury room. He discussed his personal
experiences with gangs also.” The same juror “told the jury to
pray together for the defendant and his family.”
● “I felt pressured to vote guilty because” of “bullying” by
other jurors. “I voted guilty because I just wanted to get out of
there.”
Relying on Evidence Code section 1150, the trial court
found Juror No. 44’s affidavit inadmissible and denied
defendant’s motion for a new trial.4 Evidence Code section 1150
provides in pertinent part: “Upon an inquiry as to the validity of
a verdict, any otherwise admissible evidence may be received as
to statements made, or conduct, conditions, or events occurring,
either within or without the jury room, of such a character as is
likely to have influenced the verdict improperly. No evidence is
admissible to show the effect of such statement, conduct,
condition, or event upon a juror either in influencing him to
assent to or dissent from the verdict or concerning the mental
processes by which it was determined.”
“ ‘When a party seeks a new trial based upon jury
misconduct, a court must undertake a three-step inquiry. The
court must first determine whether the affidavits supporting the
motion are admissible under Evidence Code section 1150,
subdivision (a).’ [Citation.] ‘If the evidence is admissible, the
court must then consider whether the facts establish misconduct.
[Citation.] Finally, assuming misconduct, the court must
determine whether the misconduct was prejudicial.’ ” (People v.
4 With one exception, the trial court provided defense
counsel the jurors’ identifying information. Other than Juror
No. 44, no juror spoke to defense counsel’s investigator.

-- 14 of 29 --

15
Engstrom (2011) 201 Cal.App.4th 174, 182.) We independently
review the trial court’s denial of defendant’s new trial motion.
(People v. Ault (2004) 33 Cal.4th 1250, 1261–1262.)
2. Juror No. 44’s Affidavit Was Not Admissible
Our high court has held: “[E]vidence that the internal
thought processes of one or more jurors were biased is not
admissible to impeach a verdict. The jury’s impartiality may be
challenged by evidence of ‘statements made, or conduct,
conditions, or events occurring, either within or without the jury
room, of such a character as is likely to have influenced the
verdict improperly,’ but ‘[n]o evidence is admissible to show the
[actual] effect of such statement, conduct, condition, or event
upon a juror . . . or concerning the mental processes by which [the
verdict] was determined.” (In re Hamilton (1999) 20 Cal.4th 273,
294, italics omitted (Hamilton).)
“This rule ‘serves a number of important policy goals: It
excludes unreliable proof of jurors’ thought processes and thereby
preserves the stability of verdicts. It deters the harassment of
jurors by losing counsel eager to discover defects in the jurors’
attentive and deliberative mental processes. It reduces the risk
of postverdict jury tampering. Finally, it assures the privacy of
jury deliberations by foreclosing intrusive inquiry into the
sanctity of jurors’ thought processes.’ ” (Hamilton, supra,
20 Cal.4th at p. 294, fn. 17.)
Defendant admits that Juror No. 44’s subjective beliefs
were inadmissible under Evidence Code section 1150, but argues
that the following three statements fall outside of Evidence Code
section 1150’s purview: (1) “ ‘jurors made an assumption of guilt
based on the gang allegation’ ”; (2) “ ‘based on how the jurors
spoke[,] . . . many jurors already had their mind[s] made up’ ”;

-- 15 of 29 --

16
and (3) “ ‘jurors were using a “but for” standard instead of the
reasonable doubt standard of guilt.’ ” (Italics omitted.)
Defendant’s argument is unpersuasive.
First, the statement that jurors assumed defendant was
guilty based on the gang allegation falls squarely within the
ambit of Evidence Code section 1150. In essence, Juror No. 44
asserted her belief that other jurors subjectively believed that the
defendant was guilty because the crime allegedly was committed
for purposes of defendant’s gang. As our sister court has
explained: “The subjective quality of one juror’s reasoning is not
purged by the fact that another juror heard and remembers the
verbalization of that reasoning. To hold otherwise would destroy
the rule . . . which clearly prohibits the upsetting of a jury verdict
by assailing these subjective mental processes. It would also
inhibit and restrict the free exchange of ideas during the jury’s
deliberations.” (People v. Elkins (1981) 123 Cal.App.3d 632, 638.)
Second, Juror No. 44’s statement that many jurors had
made up their minds similarly reflects Juror No. 44’s view of the
other jurors’ mental states during the deliberative process.
Juror No. 44’s view of other jurors’ subjective mental states is
inadmissible under Evidence Code section 1150. “The reality
that a juror may hold an opinion at the outset of deliberations
is . . . reflective of human nature. . . . We cannot reasonably
expect a juror to enter deliberations as a tabula rasa, only
allowed to form ideas as conversations continue. What we can,
and do, require is that each juror maintain an open mind,
consider all the evidence, and subject any preliminary opinion to
rational and collegial scrutiny before coming to a final
determination.” (People v. Allen and Johnson (2011) 53 Cal.4th
60, 75.)

-- 16 of 29 --

17
Juror No. 44’s claim that the jurors did not follow the
court’s instruction was also inadmissible under Evidence Code
section 1150. As Bell v. Bayerische Motoren Werke
Aktiengesellschaft (2010) 181 Cal.App.4th 1108 (Bell) explained:
Under Evidence Code section 1150, “juror declarations are
inadmissible to the extent that they purport to describe the
jurors’ understanding of the instructions or how they arrived at
their verdict.” (Bell, at p. 1125.) Further absent “[a]n express
agreement not to follow the instructions ‘or extensive discussion
evidencing an implied agreement to that effect’ ” a juror’s
understanding of how other jurors applied the trial court’s
instructions is inadmissible under Evidence Code section 1150.5
5 “It is axiomatic that cases are not authority for
propositions that are not considered.” (California Building
Industry Assn. v. State Water Resources Control Bd. (2018)
4 Cal.5th 1032, 1043.) Ignoring this well rooted principle,
defendant relies on several cases that do not consider the
application of Evidence Code section 1150 and therefore do not
support his argument that Juror No. 44’s affidavit was
admissible under Evidence Code section 1150.
For example, in People v. Weatherton (2014) 59 Cal.4th 589
(Weatherton), the defendant argued that a juror’s misconduct
during the guilt phase of a trial required reversal. Specifically,
the juror discussed punishment and judged the case prior to
deliberations. (Id. at p. 593.) The trial court questioned jurors at
a hearing and several jurors agreed that they had discussed the
case prior to deliberations. (Id. at p. 597.) The high court
accepted the defendant’s argument that a juror “committed
prejudicial misconduct, and reversal is required.” (Id. at p. 598.)
The high court did not apply Evidence Code section 1150 or
consider whether evidence was admissible under that section.
Neither party raised the issue of Evidence Code section 1150.
(Id. at p. 595, fn. 5.) Therefore, defendant cannot rely on

-- 17 of 29 --

18
(Bell, at pp. 1127–1128.) To recap, defendant identifies no
admissible evidence of jury misconduct. Without showing
admissible evidence of misconduct, defendant cannot show that
the court erred in denying his motion for a new trial based on
jury misconduct.6
Weatherton to argue that Juror No. 44’s affidavit was admissible
under Evidence Code section 1150.
For the same reasons People v. Leonard (2007) 40 Cal.4th
1370 (Leonard) does not assist defendant. In Leonard, the high
court concluded that the jury committed misconduct “by violating
the trial court’s instruction not to discuss defendant’s failure to
testify.” (Id. at p. 1425.) The high court considered whether the
defendant was prejudiced by the juror misconduct. The high
court did not consider whether evidence of misconduct was
admissible under Evidence Code section 1150. Leonard therefore
does not support the conclusion that in this case Juror No. 44’s
affidavit was admissible under Evidence Code section 1150.
A final example of a case defendant cites that is irrelevant
to the Evidence Code section 1150 analysis is People v. Lomax
(2010) 49 Cal.4th 530 (Lomax). In Lomax, our Supreme Court
explained that “ ‘A sitting juror’s actual bias, which would have
supported a challenge for cause, renders him “unable to perform
his duty” and thus subject to discharge and substitution . . . .’ ”
(Id. at p. 589.) For example, a juror’s view on capital punishment
may disqualify him or her from a jury required to consider the
death penalty. (Ibid.) The high court held that the trial court’s
discharge of a juror based on false statements in the jury
questionnaire and refusal to deliberate were supported by the
evidence. (Id. at p. 590.) The high court did not consider the
applicability of Evidence Code section 1150. Lomax therefore
does not assist defendant.
6 Defendant also states that the trial court should have
held an evidentiary hearing. Given the absence of any admissible

-- 18 of 29 --

19
C. Defendant’s Claim of Ineffective Assistance in not
Uncovering Juror No. 18’s Purported Concealed Bias
Fails When the Record Demonstrates No Concealed
Bias
Defendant argues his trial counsel was ineffective for
failing to recognize that “Juror No. 18[ ] conceal[ed] . . . his gang
experience when specifically asked during voir dire.” (Bold and
capitalization omitted.)
A trial court may consider evidence that a juror concealed
bias during voir dire as evidence of juror misconduct. (Hamilton,
supra, 20 Cal.4th at p. 294.) Defendant argues that his counsel
rendered ineffective assistance of counsel by failing to recognize
that Juror No. 18 concealed his “personal experience” with gangs
“despite being asked.” There is no support for defendant’s
statement that Juror No. 18 was asked about his personal
experience with gangs. The premise of defendant’s argument
thus lacks foundation.
During voir dire, the trial court asked prospective jurors:
“One of the allegations is that this offense was committed for the
benefit of a street gang. There may be evidence that people
affiliated with the case, whether Mr. Melara, witnesses, decedent
in this case, may have affiliation with gangs. Do any of you know
any gang members or are associated with any? Juror No. 18
did not answer the trial court’s inquiry.
The trial court also asked: “[A]re any of you victims of any
kind of gang-related crime whether theft or violence or anything
evidence, there was no basis for a hearing on jury misconduct.
(People v. Avila (2006) 38 Cal.4th 491, 604 [posttrial evidentiary
hearing on issue of jury misconduct necessary only if disputed
issue of fact].)

-- 19 of 29 --

20
of that nature?” “Have any of you ever seen any gang activity?
You’ve seen things on the street or at work or somewhere that
you thought was indicia of a gang?” “Are any of you familiar with
a gang by the name of La Mirada Locos, LML?” “Are any of [you]
familiar with the gang Rebels 13?” “Do any of you have any
specific training or experience in the subject of street gangs or
any psychology or any of the things of those types of subjects or
the academic side of that?” “Will all of you be able to evaluate the
evidence fairly and not simply disregard things because gang
evidence is involved?” “Can you be fair to him? Or are you going
to say, ‘He’s affiliated with a gang and I’m done with him.’ ”
Juror No. 18 did not respond to these inquiries.
Defense counsel also asked prospective jurors about issues
related to gangs. Defense counsel asked, “Do you think that if
you’re in a gang and/or in anyway associated with a gang that
you should automatically be guilty because of association?”
Defense counsel did not ask additional questions.
Juror No. 18 responded, “Guilty of what, I would say.”
Defense counsel responded, “Of anything. Of anything that
another gang member does.” Juror No. 18 responded, “Not just
because of association. But if you’re related to it or you know
about it, you could have stopped it.” Defense counsel did not ask
any additional questions.
For the first time on appeal, defendant argues that Juror
No. 18 failed to disclose during voir dire that he had “personal
experience” with gangs. Defendant argues that his counsel
rendered ineffective assistance in failing to discover the
purported discrepancy between Juror No. 18 statements during
voir dire and Juror No. 44 description of Juror No. 18 as having
“personal experiences” with gangs. In her posttrial affidavit,

-- 20 of 29 --

21
Juror No. 44 reported that Juror No. 18 “discussed his personal
experiences with gangs.” Juror No. 44 provided no further
elaboration as to the nature of Juror No. 18’s alleged “personal
experiences.”
The principal problem with defendant’s argument is that
he identifies no question posed during voir dire that mandated
Juror No 18 to reveal his purported “personal experience” with
gangs. Juror No. 44 did not aver that Juror No. 18 knew gang
members, was associated with gang members, was the victim of a
gang violence, or observed gang activity or other indicia of a
gang. Juror No. 44’s vague statement that Juror No. 18 had
“personal experience” is not directly responsive to any question
posed during voir dire.
In sum, the record does not support defendant’s argument
that Juror No. 18 concealed a bias during voir dire. Defendant’s
argument that his trial counsel was ineffective is premised on
just such a showing. As the Attorney General argues, “There was
no claim to raise, so defense counsel could not be ineffective for
failing to raise it.”
D. Defendant’s Claim that His Trial Counsel Rendered
Ineffective Assistance In Failing to Provide a
Mitigation Report to the Trial Court Before
Sentencing Lacks Merit
Defendant’s trial counsel provided a mitigation report
attached to a brief for defendant’s “youth offender parole
hearing.” The record does not show exactly when the trial court
received the report. On appeal, defendant argues his counsel
rendered ineffective assistance in failing to present the report
before the trial court exercised its sentencing discretion. For
purposes of this appeal, we assume that the trial court did not

-- 21 of 29 --

22
receive the report before it sentenced defendant. We first provide
additional background and then explain why defendant’s
argument lacks merit.
1. Background
Defendant’s counsel filed a sentencing memorandum. In it
she argued defendant had a minimal criminal record. Defendant
had learning disabilities and was only 22 years old when he
committed the crime. Counsel recounted: Defendant “was born
to a teenage mother, who did not have much [sic] resources to
raise him.” “Mr. Melara’s biological father was abusive towards
his mother and was an absent parent for most of his life.”
“Mr. Melara’s childhood was unstable as he lived with his
mother, his grandmother, and moved frequently.”
Defense counsel also filed a brief and an exhibit relevant to
defendant’s “youth offender parole hearing.” The exhibit was
entitled “Final Mitigation Report” and was prepared by Jessica
Pfeifer, a “Mitigation Specialist.” The report details how
defendant’s grandmother entered the United States from Mexico,
defendant’s father’s abuse of defendant’s mother, and defendant’s
grandmother’s undertaking of caretaking responsibilities for
defendant. Defendant moved frequently. Defendant did not
complete high school, having left his senior year. Defendant
reported no mental health symptoms, but he sometimes
disappeared from his home. Defendant reported witnessing
violent incidents, including the shooting of one of his cousins.
Defendant reported that he used alcohol and marijuana.
Defendant worked at several part-time jobs.

-- 22 of 29 --

23
Pfiefer identified the following mitigating circumstances:
(1) “The defendant’s mother was a teenager and overwhelmed
parent”; (2) “[t]he defendant’s father was an absent parent”;
(3) “[t]he defendant’s childhood was marked by instability”;
(4) [t]he defendant has significant cognitive issues and was
identified as learning disabled.” (Italics and underlining
omitted.) Facts supporting each factor were described in the
mitigation report.
At sentencing, the trial court stated, “The court has read
and considered the probation report and has also read and
considered the sentence memorandum filed by the People on
July 11th as well as [the] sentencing memorandum filed by the
defense on March 19th.” Later, the court indicated it considered
a letter on behalf of defendant by Hugo Brent. That letter is not
in the appellate record.
At the sentencing hearing, defendant’s counsel argued that
there were mitigating factors. She emphasized defendant’s age
at the time of the crime, his lack of an extensive criminal history,
his courteous conduct, and the fact that his mother was young at
the time defendant was born. Counsel argued that defendant’s
mother “was a teenage mother when Mr. Melara was born. She,
herself, did not have to raise him. She had to finish her schooling
and also work. So he spent time with his mother and
grandmother. He witnessed physical abuse from his biological
father toward his mother and then his father became an[ ] absent
figure for most of his life. His family always struggled financially
and they moved around a lot living with either his mother or his
grandmother or other family members.”
Counsel also pointed out that defendant suffered from
“learning disabilities.” Counsel emphasized that defendant

-- 23 of 29 --

24
was not the shooter. Based on all of these factors, counsel
requested that the court strike the gun enhancement.
Prior to imposing its sentence, the trial court identified
factors in mitigation and aggravation. The court noted that
defendant had an insignificant criminal history. “With
regard to exercise of discretion [in imposing or striking the
section 12022.53 enhancement], the court does not feel this would
be the appropriate case for striking the gang enhancement given
the brazenness and callousness of the offense. As the People
indicate, this happened in broad daylight and luckily no other
people were injured . . . .” The court denied defendant’s request
to strike the firearm enhancement.
After imposing sentence and referring the matter to the
probation department, the trial court noted that defendant had
submitted a brief and the above described mitigation report.
2. Analysis
To demonstrate ineffective assistance of counsel, a
defendant must demonstrate deficient conduct and prejudice.
(People v. Williams (1997) 16 Cal.4th 153, 214–215 (Williams).)
In considering a claim of ineffective assistance of counsel, it is not
necessary to determine “ ‘whether counsel’s performance was
deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies . . . . If it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course
should be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063, 1079,
quoting Strickland v. Washington (1984) 466 U.S. 668, 697.) To
demonstrate prejudice, defendant must show a “reasonable
probability” that the errors affected the result. (Williams,

-- 24 of 29 --

25
at p. 215.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Ibid.)
We assume for purposes of appeal that defense counsel
failed to timely provide the mitigation report to the court.
Defendant, however, has failed to demonstrate prejudice from
this purported failure. Defense counsel informed the trial court
of the key elements of that report in the sentencing memorandum
and during oral argument prior to the court’s exercise of its
sentencing discretion. Thus, the trial court exercised its
discretion to impose the enhancement with knowledge of the
potential mitigation factors. Although the report contained
additional factual details, it is not reasonably probable that the
court’s review of the entire report would have resulted in a more
favorable result to defendant.
E. The Trial Court Did Not Err in Imposing a Section
12022.53 Enhancement
Defendant argues that remand is necessary because the
trial court misunderstood the scope of its discretion to impose or
strike the section 12022.53 enhancement. Specifically, defendant
contends the trial court had discretion to impose a lesser
uncharged enhancement if it was not willing to strike the
enhancement altogether.
Effective January 1, 2019, section 12022.53, subdivision (h)
provides in pertinent part: “The court may, in the interest of
justice pursuant to Section 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to be
imposed by this section.” (§ 12022.53, subd. (h).) Section 1385 in
turn permits a court to strike or dismiss an enhancement in the
furtherance of justice. (§ 1385, subd. (b)(1).)
The trial court recognized that the new statute afforded it
discretion to strike the section 12022.53 enhancement. It invited

-- 25 of 29 --

26
counsel to submit argument on the issue. At the sentencing
hearing, counsel argued whether the court should impose or
strike the firearm enhancement. No counsel argued that the
court could instead impose an uncharged lesser enhancement.
There is a split of authority on whether in exercising its
discretion to impose or strike a section 12022.53 enhancement,
the trial court may instead impose an uncharged enhancement.
In Morrison, supra, the appellate court held that a trial court
may impose an uncharged enhancement under section 12022.53,
subdivisions (b) or (c) if it strikes the enhancement under
section 12022.53, subdivision (d). “[T]he court could impose
an uncharged enhancement under section 12022.53,
subdivision (b) or (c) in lieu of an enhancement under
section 12022.53, subdivision (d) if it was unsupported by
substantial evidence or was defective or legally inapplicable in
some other respect. We see no reason a court could not also
impose one of these enhancements after striking an enhancement
under section 12022.53, subdivision (d), under section 1385.”
(Morrison, supra, 34 Cal.App.5th at pp. 222–223.)
In contrast, Tirado, supra, held that the trial court could
not impose an uncharged lesser enhancement. “Nothing in the
plain language of sections 1385 and 12022.53, subdivision
(h) authorizes a trial court to substitute one enhancement for
another. Section 12022.53, subdivision (h) uses the verbs ‘strike’
and ‘dismiss,’ and section 1385, subdivision (a) states the court
may ‘order an action to be dismissed.’ This language indicates
the court’s power pursuant to these sections is binary: The court
can choose to dismiss a charge or enhancement in the interest of
justice, or it can choose to take no action. There is nothing in
either statute that conveys the power to change, modify, or

-- 26 of 29 --

27
substitute a charge or enhancement.” (Tirado, supra,
38 Cal.App.5th at p. 643.)
The Tirado court further reasoned that in exercising its
“ ‘executive functions,’ ” the prosecutor, and not the court,
determines what charges to bring. “[B]ecause the People
exercised their charging discretion to allege only one
enhancement, the trial court was limited to either imposing or
striking that enhancement.” (Tirado, supra, 38 Cal.App.5th
at p. 644.)
We conclude that Tirado is better reasoned. Accordingly,
there is no basis for remanding the matter to the trial court to
exercise a discretion it does not have.7
F. Defendant Demonstrates No Error In Assessing
Fines and Fees Without an Ability to Pay Hearing
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157
(Dueñas), defendant argues the trial court erred in imposing the
$30 court facilities assessment, $40 court operations assessment
and $300 restitution fine because the trial court did not hold an
ability to pay hearing. Defendant does not challenge the victim
restitution, but contends that the amount of restitution should be
considered in determining whether defendant has the ability to
pay the restitution fine and assessments.
7 In his reply brief, defendant argues that People v. Marsh
(1984) 36 Cal.3d 134 (Marsh) requires a different result. Marsh
explained that under section 1385, in the context of a plea, a
trial court could strike allegations and reduce a sentence to allow
a minor eligibility into Youth Authority. (Id. at p. 143.) Our
high court in Marsh, however, did not consider the language of
section 12022.53, subdivision (h), and therefore Marsh is not
controlling here.

-- 27 of 29 --

28
In Dueñas, an unemployed, homeless mother with cerebral
palsy lost her driver’s license when she was unable to pay over
$1,000 assessed against her for three juvenile citations. (Dueñas,
supra, 30 Cal.App.5th at pp. 1160–1161.) Thereafter she received
multiple convictions related to driving with a suspended license,
each accompanied by jail time and additional fees she could not
afford to pay. (Id. at p. 1161.) The trial court rejected Dueñas’s
request to hold an ability to pay hearing despite undisputed
evidence that she was indigent. (Id. at p. 1163.)
The appellate court reversed, holding that due process
prohibited imposing the same assessments imposed in the
current case and required the trial court to stay execution of the
restitution fines until the trial court held an ability to pay
hearing. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court
expressed concern for “the cascading consequences of imposing
fines and assessments that a defendant cannot pay,” noting that
Dueñas’s case “ ‘doesn’t stem from one case for which she’s not
capable of paying the fines and fees,’ but from a series of criminal
proceedings driven by, and contributing to, Dueñas’s poverty.”
(Id. at pp. 1163–1164.) The court referenced “the
counterproductive nature of this system and its tendency to
enmesh indigent defendants in a cycle of repeated violations and
escalating debt.” (Id. at p. 1164, fn. 1.)
Dueñas is distinguishable because defendant here does not
face incarceration because of his inability to pay fines and fees.
He is incarcerated because he aided and abetted the killing of a
rival gang member. (Caceres, supra, 39 Cal.App.5th at p. 928
[declining to apply Dueñas’s “broad holding” beyond its “unique
facts”].) Also, in contrast to the defendant in Dueñas who was
unemployed and disabled, the record shows that defendant here

-- 28 of 29 --

29
held multiple part-time jobs. Moreover, following People v. Hicks
(2019) 40 Cal.App.5th 320, review granted Nov. 26, 2019,
S258946, this court has held that Dueñas was wrongly decided
because it misapplied due process precedents. (People v.
Kingston (2019) 41 Cal.App.5th 272.) Even if, arguendo Dueñas
were correctly decided, imposition of the minimal assessments
here (totaling $370) was harmless given defendant’s ability to
earn wages during his four-decade prison sentence. (People v.
Johnson (2019) 35 Cal.App.5th 134, 139–140 [any error under
Dueñas harmless when defendant “will have the ability to earn
prison wages over a sustained period”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
JOHNSON, J.

-- 29 of 29 --