P. v. Frazier

Filed 6/22/18 P. v. Frazier CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
QUENTIN FRAZIER,
Defendant and Appellant.
B281888
(Los Angeles County
Super. Ct. No. LA083934)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Joseph Brandolino, Judge. Affirmed in
part, remanded in part, with directions.
Brett Hardin Duxbury, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Shawn McGahey Webb,
Supervising Deputy Attorney General, Heather B.

-- 1 of 31 --

2
Arambarri, Deputy Attorney General, for Plaintiff and
Respondent.
___________________________
The jury convicted defendant and appellant Quentin
Frazier in counts 1 and 2 of first degree murder (Pen. Code,
§ 187, subd. (a)),1 and in count 3 of assault with a
semiautomatic firearm (§ 245, subd. (b)).2 As to counts 1 and
2, it found true the special circumstance that defendant
committed multiple murders (§ 190.2, subd. (a)(3)), that the
murders and firearm assault were committed for the benefit
of a criminal street gang (§186.22, subd. (b)(1)(C)), and that
a principal personally and intentionally discharged a firearm
in the commission of the murders (§ 12022.53, subd. (c) &
(e)(1)). It found not true the allegations in counts 1 and 2
that defendant’s firearm use caused the victims’ deaths.
(§ 12022.53, subd. (d).) In count 3, the jury found true the
allegation that the assault was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)), and not true
1 All future references are to the Penal Code unless
otherwise indicated.
2 The jury acquitted defendant of assault with a
firearm in count 4. (§ 245, subd. (b).)

-- 2 of 31 --

3
the allegation that defendant personally used a firearm to
assault the victim (§ 12022.5, subds. (a) & (d)).3
As to counts 1 and 2, the trial court sentenced
defendant to life without the possibility of parole, plus a
consecutive term of 25 years to life for firearm use pursuant
to section 12022.53, subdivision (d), with the sentence in
count 2 to run concurrently with the sentence in count 1. It
struck the multiple murder special circumstance in count 2.
In count 3, defendant received a consecutive sentence of 2
years, plus a term of 10 years in prison for the section
186.22, subdivision (b)(1)(C) gang enhancement.
Defendant contends that: (1) there is insufficient
evidence to support the jury’s finding that a semiautomatic
firearm was used in the assault in count 3; (2) a witness’s in-
court identification of him was the product of an unduly
suggestive procedure; (3) the trial court erred when
instructing the jury with respect to the multiple murder
special circumstance allegation; (4) the gang enhancement in
count 3 is unauthorized; and (5) the firearm enhancements
in counts 1 and 2 are unauthorized or inadequately pleaded,
3 As we note later, the Attorney General mistakenly
believes that defendant was found to have personally used a
firearm in commission of the crimes. The record shows that
the jury found true that a principal used a firearm in
commission of the murders, but found not true the
allegations that defendant personally used a firearm in all
counts. (§§ 12022.53 (c) & (e)(1) [counts 1 & 2], 12022.5 (a) &
(d) [count 3].)

-- 3 of 31 --

4
or in the alternative, the cause must be remanded to allow
the trial court to consider exercising its discretion under
section 1385 to strike the section 12022.53, subdivision (d)
firearm use allegations under recently enacted section
12022.53, subdivision (h). (Senate Bill No. 620 (2017–2018
Reg. Sess.).)
The Attorney General agrees that the gang
enhancement in count 3 was unauthorized. Although the
Attorney General asserts that imposition of firearm
enhancements under section 12022.53, subdivision (d) was
proper, it agrees the cause must be remanded to allow the
trial court to exercise its discretion to consider dismissing
the firearm use enhancements. It argues the remaining
contentions are either without merit or that any error is
harmless.
We modify the judgment to reflect that defendant’s
conviction for assault with a semiautomatic weapon in count
3 under section 245, subdivision (b), is reduced to assault
with a firearm in violation of section 245, subdivision (a)(2),
and to strike the 25 years to life firearm enhancements in
counts 1 and 2 (§ 12022.53, subds. (d) & (e)(1)), and the 10-
year gang enhancement in count 3 (§ 186.22, subd. (b)(1)(C)).
We remand for resentencing in count 3, and to permit the
trial court to exercise its discretion under Senate Bill No.
620 to either strike or impose the firearm enhancements
under section 12022.53, subdivisions (c) and (e)(1), in counts
1 and 2. The judgment is otherwise affirmed.

-- 4 of 31 --

5
FACTS
Prosecution
On August 19, 2011, Eddie Miller and Justin Wright
hosted a party at Miller’s house on Coldwater Canyon. The
party was attended by members of rival gangs Pasadena
Denver Lanes (PDL) and the Rollin’ 40’s.
Defendant went to Miller’s house with a group of fellow
Rollin’ 40’s members, including Telvin Breaux and Gregory
Edmonds. PDL members Wilson Pierre and Deon Bastian
were at the party along with Pierre’s girlfriend, Cedjanae
Walker. A fight broke out after midnight between the gangs
in Miller’s backyard. Wright believed the fight began after
the disc jockey played a gang-related song and people started
throwing up gang signs. He heard someone use the term “O-
Killa” just before the fight started. Walker believed the fight
started after Pierre and a Rollin’ 40’s member “hit each other
up”—i.e. exchanged gang affiliations. Pierre told the Rollin’
40’s member he was an “O-Killa,” meaning that his gang
killed Rollin’ 40’s members. A second man walked over and
hit Pierre up. Walker told Pierre not to say anything and
urged him to leave because she saw a gun in the man’s
waistband. A third man approached and struck Walker.
The fight involved between 10 and 20 people, including
Breaux, Bastian, Pierre, and Walker. Walker grabbed a big
stick and started swinging it. One man was slammed to the
ground and appeared to be badly injured. The fight broke

-- 5 of 31 --

6
up, and Miller escorted a group of four to five people out of
the party through the front door. The injured man had to be
supported by friends to walk. Wright saw defendant, who
appeared to be very angry, leave the party through the
house. Defendant’s clothes were disheveled and dirty.
Wright felt something bad was about to happen, so he went
into the backyard and told people to leave through the front.
Wright told Bastian and a man with him to leave. Bastian
responded, “We’ll leave. We’re just going to chill for a bit.”
Wright told Bastian to leave again and then went inside the
house to look for Miller. When he re-entered the house,
Wright heard two gunshots.
Miller attempted to shepherd a group of Rollin’ 40’s to
the gate separating his front yard from the sidewalk. The
men remained in the front yard. Some other men were
standing on the sidewalk in front of the house. One of the
men handed a gun to a man inside the gate. The man who
received the gun told the others that he was “going to hit the
fence,” and began walking toward the side of the house,
where a fence separated Miller’s front and back yards.
Miller did not want the man to go into the backyard, so he
grabbed the man by the shoulders in attempt to stop him.
The man turned around, held the gun a few inches from
Miller’s face and told him to “[b]ack the fuck up.” The armed
man and the group he was with went over the fence into
Miller’s backyard. Miller immediately went inside and told
people that someone had a gun. Inside, Miller found Wright
and warned him not to go in the backyard. He called 911.

-- 6 of 31 --

7
While he was speaking with the dispatcher, Miller heard
gunshots.
Walker had remained in the backyard with Pierre and
Bastian. After she heard the first gunshot, she and Pierre
ran to the far end of the yard and hid near a tree. Pierre
told Walker he would distract the gunman. While she ran
for the house, he ran behind a car. Two of the men involved
in the initial confrontation with Pierre were searching the
yard for Pierre and Bastian. One of the men found Pierre
and alerted the gunman, “He’s right here.” Pierre ran
toward the house, but the gunman shot him in the chest.
Walker got Pierre into her car and drove him to the hospital,
but Pierre died on the way. Bastian was found dead on the
ground with a gunshot wound to the head.
The Investigation
Los Angeles Police Department Detective Thomas
Townsend investigated the crimes. Miller described the
shooter as five feet eight inches or five feet ten inches. The
shooter wore a hat and was not skinny. Miller only saw the
gunman while the gun was in his face. Miller identified
Breaux as one of the people involved in the initial fight with
one of the victims. About a month after the shooting, Miller
saw Breaux at a club, and Breaux asked him why he was
“snitching.”
Miller told Detective Townsend that he had heard
some of the people from the party were in a rap video called

-- 7 of 31 --

8
“Hard In The Paint.” The detective watched the video with
Miller, who identified Breaux as one of the people at the
party. Detective Townsend investigated Breaux, and
learned that he and Edmonds were close friends. The
detective put Edmonds’s photograph in a photographic six-
pack to show witnesses. Breaux and Edmonds were arrested
together.
Walker identified four different people as the gunman
in photographic lineups that did not include defendant.4
Detective Townsend never showed Walker a six-pack
containing defendant’s photo, because “she was incorrect on
four other times.”
Breaux’s sister, Fantesia Davis, knew defendant from
school. She told Detective Townsend that her brother told
her the day after the shootings that defendant shot some
guys at the party. Defendant also told Davis he had gotten
into a fight and shot two PDL members at a party.
Defendant told her he was afraid of being caught because
one of the men he shot did not die.
While in custody, Breaux told his sister and his mother
that defendant was the shooter. He also told Detective
Townsend that he saw someone give defendant a gun at the
4 Walker made an in-court identification of defendant
as the gunman.

-- 8 of 31 --

9
party.5 Breaux’s mother told Detective Townsend that
defendant had called her and told her he killed Bastian and
Pierre.
Detective Townsend found defendant’s number in
Breaux’s cell phone. He was able to determine that
defendant’s phone had been near Miller’s house on the night
of the party. The detective put a photo of defendant in a six-
pack of photographs. Miller and Wright identified defendant
as someone who had been at the party. Miller thought
defendant resembled the gunman, but could not positively
identify him.6
Detective Townsend arrested defendant. Defendant
denied that he handled a gun at the party. No physical
evidence linked him to the shooting. During a recorded jail
call, defendant said a man named Jamie Williams was
snitching.
5 At trial, Breaux said he made up the story about
defendant having a gun because he was afraid that he was
still a suspect. He told his mother and sister to go along
with the story.
6 Miller testified at trial that he did not think he had
ever seen defendant before the proceedings.

-- 9 of 31 --

10
Expert Witness Testimony
The prosecution called two police officers, who testified
as experts on gangs and gang culture.7 They testified the
Rollin’ 40’s is a street gang with a pattern of criminal
activity, and opined that defendant is a Rollin’ 40’s gang
member. When given a hypothetical with facts that
paralleled the instant case, both officers opined that the
murders were committed for the benefit of a criminal street
gang.
Defense
The defense called Dr. Kathy Pezdek, a professor of
cognitive science at Claremont Graduate University, as an
expert on memory and eyewitness identifications. Dr.
Pezdek testified regarding numerous factors that can
adversely affect the accuracy of a witness identification. In
Dr. Pezdek’s opinion, the photographic six-pack containing
defendant’s photo essentially offered a choice of three
possible suspects, because the other three people could be
eliminated immediately on the basis of the witnesses’
description of the suspect. In her opinion, this was an
“unacceptable” identification procedure. She further opined
7 Defendant does not challenge the sufficiency of the
evidence underlying the jury’s gang allegation findings.

-- 10 of 31 --

11
that an in-court identification is “worthless as a test of
eyewitness memory.”
DISCUSSION
Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence
supporting the jury’s finding that he used a semiautomatic
weapon to assault Miller in count 3. We agree. We reduce
defendant’s conviction for assault with a semiautomatic
weapon under section 245, subdivision (b), to assault with a
firearm in violation of section 245, subdivision (a)(2), and
remand for resentencing on that count.
We review the sufficiency of the evidence in the light
most favorable to the judgment for substantial evidence—
evidence that is reasonable, credible, and of solid value.
(People v. Maury (2003) 30 Cal.4th 342, 396; People v.
Hillhouse (2002) 27 Cal.4th 469, 496.) “A reversal for
insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial
evidence to support”” the jury’s verdict. [Citation.]” (People
v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 245 is divided into several offenses based on
the instrumentality of the assault. The defendant’s
punishment depends on which specific offense he committed.
If a standard firearm is used, the maximum term is four
years (§ 245, subd. (a)(2)); if a semiautomatic firearm is

-- 11 of 31 --

12
used, the punishment may be as high as nine years (§ 245,
subd. (b)). Defendant had a Sixth Amendment right to a
jury determination of the type of firearm used in the assault.
(Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [“[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt”]; Alleyne v. United States (2013) 570 U.S.
99, 103 [“any fact that increases the mandatory minimum is
an ‘element’ that must be submitted to the jury”].)
Section 245, subdivision (b), is violated by a defendant
who commits an assault with a semiautomatic firearm.
Section 17140 defines a semiautomatic pistol as “a pistol
with an operating mode that uses the energy of the explosive
in a fixed cartridge to extract a fired cartridge and chamber
a fresh cartridge with each single pull of the trigger.” The
testimony of a lay witness is sufficient to establish the
nature of a firearm. (See People v. Haynes (1984) 160
Cal.App.3d 1122, 1136, fn. 7; People v. Williams (1976) 56
Cal.App.3d 253, 255.)
The firearm used in the crimes was never recovered.
Miller testified that a man with “a gun” said he was going to
go into the backyard where the fight had broken out. When
Miller tried to stop the man he pointed the gun at Miller’s
face and threatened him to back off. Pierre and Bastian
were both shot to death. Criminalist Jeffrey Lowe of the Los
Angeles Police Department’s Forensic Science Division
testified that he recovered and examined four “discharged

-- 12 of 31 --

13
cartridge cases” from the backyard where the shootings
occurred. He explained that discharged cartridge cases are
“ejected from the handgun after the bullet is fired.” All of
the discharged cartridge cases bore the headstamp “380,”
which meant that all four bullets were .380 caliber.
The evidence presented shed little light on the type of
firearm used, beyond the fact that it ejected cases. No
percipient witness described the firearm, and neither of the
criminalists who collected and examined the firearm
evidence testified regarding the operation of the gun or what
type of gun it was. There was simply not sufficient evidence
for the jury to make a determination as to whether the
firearm used to commit the assault was semiautomatic.
Although the evidence in support of count 3 was
insufficient to establish that defendant used a
semiautomatic firearm, the jury necessarily found defendant
committed assault with a firearm, which was supported by
Miller’s testimony that he was assaulted by a man with a
gun. (§ 245, subd. (a)(2).) When a conviction is contrary to
law, but the evidence shows that defendant is guilty of a
lesser-included offense, we may reduce the conviction to the
lesser-included offense and affirm the judgment as modified.
(§ 1181, subd. (6); § 1260; People v. Navarro (2007) 40
Cal.4th 668, 681.) We therefore modify count 3 to reflect a
conviction of assault with a firearm, in violation of
subdivision (a)(2) of section 245.

-- 13 of 31 --

14
In-Court Identification
Defendant argues that admission of Walker’s in-court
identification was a violation of his due process rights
because it was the product of an unduly suggestive
procedure. Because defendant has not alleged improper law
enforcement activity, the contention necessarily fails.
In Perry v. New Hampshire (2012) 565 U.S. 228, at
pages 232–233 (Perry), the United States Supreme Court
explained: “We have not extended pretrial screening for
reliability to cases in which the suggestive circumstances
were not arranged by law enforcement officers. . . . Our
decisions . . . turn on the presence of state action and aim to
deter police from rigging identification procedures, for
example, at a lineup, showup, or photograph array. When
no improper law enforcement activity is involved, we hold, it
suffices to test reliability through the rights and
opportunities generally designed for that purpose, notably,
the presence of counsel at postindictment lineups, vigorous
cross-examination, protective rules of evidence, and jury
instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved
beyond a reasonable doubt.” Moreover, where an
identification is not procured under unnecessarily suggestive
circumstances arranged by law enforcement, the due process
clause does not require a preliminary judicial inquiry into
the reliability of an eyewitness identification. (Id. at

-- 14 of 31 --

15
pp. 247–248; People v. Thomas (2012) 54 Cal.4th 908, 930–
931 (Thomas).)
Defendant was afforded the appropriate protections
here. Evidence was presented that Walker attempted to
identify defendant in three photographic lineups and a video
prior to trial, and that in every instance she identified
different individuals—none of whom was defendant.
Detective Townsend admitted that he did not want to show
Walker a lineup containing defendant because “she was
incorrect on four other times.” The jury witnessed the in-
court identification and necessarily understood that Walker
had only one option to choose from when identifying
defendant. Walker was subject to cross-examination, and
the defense presented an expert on eyewitness
identifications who testified that such identifications are
often unreliable and that the identification in the instant
case in particular was “worthless.” The jury was properly
instructed on both reasonable doubt (CALCRIM Nos. 220,
224, 401, 520, and 521) and on the caution with which
eyewitness testimony should be viewed (CALCRIM No. 315).
Because defendant’s due process rights were not implicated,
the trial court did not err in refusing to exclude the
identification. Absent improper law enforcement activity,
the reliability of the in-court identification was for the jury
to determine. (Perry, supra, 565 U.S. at pp. 247–248;
Thomas, supra, 54 Cal.4th at p. 931.)

-- 15 of 31 --

16
Multiple Murder Special Circumstance Instruction
Intent to Kill
Defendant contends that the trial court erred in failing
to instruct the jury under CALCRIM No. 702 that it was
required to find he had the intent to kill before it could find
true the multiple murder special circumstance. Although we
agree the omission was error, we conclude that the error was
harmless beyond a reasonable doubt, because the jury
convicted defendant of two counts of first degree murder—
which requires the specific intent to kill—and was properly
instructed as to those offenses.
“Under California law, a person who aids and abets the
commission of a crime is a ‘principal’ in the crime, and thus
shares the guilt of the actual perpetrator.” (People v.
Prettyman (1996) 14 Cal.4th 248, 259; People v. McCoy
(2001) 25 Cal.4th 1111, 1116–1117 (McCoy); see § 31.)
Therefore, “a person who aids and abets a crime is guilty of
that crime even if someone else committed some or all of the
criminal acts.” (McCoy, supra, at p. 1117.) A defendant can
be liable as an aider and abettor in two ways. “First, an
aider and abettor with the necessary mental state is guilty of
the intended crime. Second, under the natural and probable
consequences doctrine, an aider and abettor is guilty not
only of the intended crime, but also ‘for any other offense
that was a “natural and probable consequence” of the crime
aided and abetted.’ [Citation.]” (Ibid.)

-- 16 of 31 --

17
Where there is substantial evidence that the defendant
is an aider and abettor rather than the direct perpetrator,
the jury must find that he had the specific intent to kill
before finding the multiple murder special circumstance
true. (People v. Covarrubias (2016) 1 Cal.5th 838, 928.) The
court has a sua sponte duty to instruct the jury on the
mental state required for accomplice liability when a special
circumstance is charged and there is sufficient evidence to
support the finding that the defendant was not the actual
killer. (See People v. Jones (2003) 30 Cal.4th 1084, 1117.)
The duty to give the accomplice intent instruction exists
regardless of the prosecution’s theory of the case. (Ibid.)
Here, there was substantial evidence to support the
conclusion that defendant was not the shooter. Walker
testified that two men were searching for the victims just
before Pierre was killed. One man shot Pierre after the
other man pointed out his location. Although Walker
identified defendant as the shooter at the trial, she was
unable to identify him in four lineups prior to trial, and no
other eyewitness identified him as the shooter. Miller and
Wright only tentatively identified defendant as being
present at the party. Miller said defendant resembled the
man who assaulted him with a gun but could not positively
identify him. Breaux’s statements to Detective Townsend
were inherently suspect, and he disavowed them at trial.
The witnesses who claimed defendant confessed to them
were Breaux’s family members—who had a strong
motivation to lie to protect him. Defendant contested that

-- 17 of 31 --

18
he was the shooter, and presented expert testimony on the
unreliability of eyewitness identifications. The trial court’s
omission of the instruction was therefore error.
We conclude that the error was harmless beyond a
reasonable doubt, however. (See Neder v. U.S. (1999) 527
U.S. 1, 17 (Neder) [omission of an element of an offense is
error subject to harmless error analysis]; Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman) [reversal is
required unless it appears “beyond a reasonable doubt that
the error complained of did not contribute to the verdict
obtained”].) The prosecution advanced the theories that
defendant was liable either as a direct perpetrator or an
aider and abettor, and that he aided and abetted in the
murders either directly or indirectly under the natural and
probable causes doctrine. The jury was instructed on first
degree murder (CALCRIM No. 521), second degree murder
under the natural and probable consequences doctrine
(CALCRIM No. 403), and aiding and abetting intended
crimes (CALCRIM No. 401). In both counts, it found not
true the allegation that defendant personally and
intentionally discharged a firearm causing death, but
convicted him of first degree murder—i.e., it found defendant
guilty under a direct aiding and abetting theory of liability.
In convicting defendant of first degree murder on both
counts 1 and 2, the jury necessarily found that he intended
to kill. CALCRIM No. 521 instructs that: “[T]he defendant
is guilty of first degree murder if the People have proved
that he/she acted willfully, deliberately, and with

-- 18 of 31 --

19
premeditation. The defendant acted willfully if he/she
intended to kill.” CALCRIM No. 401 advises that, to be
guilty as a direct aider and abettor, defendant had to have
known that the perpetrator intended to commit the crime,
i.e., murder, and “intended to aid and abet the perpetrator in
committing the crime.” If a defendant knows the perpetrator
intends to commit murder, and intends to aid the
perpetrator in committing the murder, the aider and abettor
necessarily intends to kill. CALCRIM No. 401 reiterated
that one “aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically
intends to, and does in fact, aid, facilitate, promote,
encourage, or instigate the perpetrator’s commission of that
crime.” A defendant who knows the perpetrator intends to
kill, and specifically intends to aid, facilitate, promote,
encourage, or instigate the murder, cannot lack the intent to
kill. There is no question that “the error ‘did not contribute
to the verdict obtained.’ (Chapman, supra, [386 U.S.] at
[p.] 24.)” (Neder, supra, 527 U.S. at p. 17.) “[T]he only mens
rea or scienter requirements for the multiple victim
circumstance are subsumed within the requirements of the
underlying offenses, which were litigated and resolved
against the defendant.” (People v. Mancebo (2002) 27
Cal.4th 735, 747; see also People v. Nunez and Satele (2013)
57 Cal.4th 1, 46 [failure to instruct on element of intent for
multiple murder special circumstance harmless where “the
jury necessarily found under other properly given
instructions that any defendant that it convicted of murder

-- 19 of 31 --

20
on a theory of aiding and abetting possessed the intent to
kill”].)
Beyond a Reasonable Doubt Standard
Defendant further contends that he was prejudiced by
the court’s failure to instruct the jury that the multiple
murder special circumstance must be proved beyond a
reasonable doubt under CALCRIM No. 700. He argues that
in light of the trial court’s instructions on the beyond a
reasonable doubt standard with respect to the offenses and
allegations, its failure to instruct on the burden of proof for
finding a special circumstance true may have led the jury to
believe that it did not require the same burden of proof.
Defendant’s contention fails because the instructions,
viewed as a whole, advised the jury the special circumstance
must be proved beyond a reasonable doubt. “A single jury
instruction may not be judged in isolation, but must be
viewed in the context of all instructions given. (Middleton v.
McNeil (2004) 541 U.S. 433, 437; People v. Letner and Tobin
(2010) 50 Cal.4th 99, 182; People v. Huggins (2006) 38
Cal.4th 175, 192.)” (People v. Thomas (2011) 52 Cal.4th 336,
356 (Thomas).)
We agree with the parties that the jury must be
instructed that a special circumstance allegation is subject to
the beyond a reasonable doubt standard of proof. (People v.
Ochoa (1998) 19 Cal.4th 353 (Ochoa), 420; People v. Frierson
(1979) 25 Cal.3d 142, 180 (Frierson).) But these authorities

-- 20 of 31 --

21
do not require a separate instruction on the subject, and to
do so would run contrary to the rule expressed in Thomas,
supra, 52 Cal.4th at page 356, as well as countless other
published decisions. Frierson and Ochoa predate the 2005
publication of the CALCRIM instructions; the juries in those
cases were instructed on reasonable doubt pursuant to
CALJIC No. 2.90. CALJIC No. 2.90’s explanation of
reasonable doubt is more constrained that the inclusive
language of CALCRIM No. 220. CALJIC No. 2.908 focuses
the jury’s application of reasonable doubt to proof of guilt,
without specifying that it applies to all issues the
prosecution must prove. In contrast, CALCRIM No. 220 is
more explicit, in that it does not limit the application of proof
beyond a reasonable doubt to “guilt.” CALCRIM No. 220
8 CALJIC No. 2.90 provides as follows: “A defendant in
a criminal action is presumed to be innocent until the
contrary is proved, and in case of a reasonable doubt
whether [his] [her] guilt is satisfactorily shown, [he] [she] is
entitled to a verdict of not guilty. This presumption places
upon the People the burden of proving [him] [her] guilty
beyond a reasonable doubt.
“Reasonable doubt is defined as follows: It is not a
mere possible doubt; because everything relating to human
affairs is open to some possible or imaginary doubt. It is
that state of the case which, after the entire comparison and
consideration of all the evidence, leaves the minds of the
jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.”

-- 21 of 31 --

22
advises the jury that proof beyond a reasonable doubt is
required any time the court instructs that there is
“something” the prosecution must prove. (CALCRIM No.
220 [“Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt [unless
I specifically tell you otherwise].”])
CALCRIM No. 721 explicitly places the burden of
proving the multiple murder special circumstance allegation
on the prosecution: “[T]he People must prove that: [¶] 1.
The defendant has been convicted of at least one charge of
first degree murder in this case; AND [¶] 2. The defendant
has also been convicted of at least one additional charge of
either first or second degree murder in this case.” In
combination, CALCRIM No. 721 advises the jury the People
must prove the multiple murder special circumstance, and
CALCRIM No. 220 directs the jury to apply the proof beyond
a reasonable doubt standard to those things the People must
prove.9 Nothing more was required.
9 As in Thomas, defendant’s jury also received various
other instructions requiring proof beyond a reasonable
doubt. (CALCRIM Nos. 224—sufficiency of circumstantial
evidence; 401—aiding and abetting of intended crimes; 520—
first or second degree murder with malice aforethought; and
521—first degree murder.)

-- 22 of 31 --

23
Sentencing Errors
Firearm Enhancements
Defendant challenges imposition of the firearm
enhancements in counts 1 and 2. He first argues the 25
years-to-life enhancements pursuant to section 12022.53,
subdivisions (d) and (e)(1) in counts 1 and 2 must be stricken
because the jury found the allegations not true. He
additionally argues that the jury’s true findings on all
firearm allegations in counts 1 and 2 must be vacated
because the prosecution failed to properly plead and prove
that the crimes were gang-related.10 Defendant further
10 The Attorney General responds, in part, to
defendant’s contentions with an argument that defendant
does not accurately state the jury’s findings. With respect to
defendant’s argument that the jury verdicts did not support
imposition of the section 12022.53, subdivision (d)
enhancements, the Attorney General maintains in a footnote
that defendant “repeatedly and inexplicably states that the
jury determined he did not personally use a firearm.” The
Attorney General accuses defendant of misrepresenting the
record, because “the jury found true the § 12022.53,
subdivision (c) allegations that he personally and
intentionally discharged a firearm to commit murder” in
counts 1 and 2. We believe it is the Attorney General’s
interpretation of the record that is incorrect. The jury found
not true the allegation under subdivision (d), and its finding

-- 23 of 31 --

24
argues in a supplemental brief that he is entitled to a
remand of the cause to permit the trial court, if it so chooses
and within the limits of section 1385, to strike the firearm
use findings pursuant to the new authority set forth in
Senate Bill No. 620. The Attorney General concedes that a
remand is in order.
We agree with defendant that the verdicts do not
support imposition of the section 12022.53, subdivision (d)
enhancements in counts 1 and 2. We also conclude that the
information properly alleged the murders were gang-related,
that defendant had adequate notice of the section 12022.53,
subdivision (c) and (e)(1) allegations, and defendant is
subject to the 20-year enhancement under subdivision (c) as
to counts 1 and 2. We remand to the trial court to exercise
its discretion under Senate Bill No. 620 to either strike or
impose the firearm enhancements under section 12022.53,
subdivision (c) and (e)(1) in counts 1 and 2.
Section 12022.53
Section 12022.53, subdivisions (b)–(d), provide for
sequentially greater enhancements applicable to various
crimes, including murder as charged in counts 1 and 2.
Under subdivision (b), a defendant who personally uses a
firearm in a murder is subject to a consecutive term of 10
under subdivision (c) was that a principal used a firearm,
not that defendant personally did so.

-- 24 of 31 --

25
years in state prison. Subdivision (c) increases the
enhancement to 20 years for any person who personally and
intentionally discharges a firearm. An enhancement of 25
years-to-life applies under subdivision (d) to a defendant who
personally and intentionally discharges a firearm and
proximately causes great bodily injury or death.
The enhancements in section 12022.53 also “shall
apply to any person who is a principal in the commission of
an offense if both of the following are pled and proved: [¶]
(A) The person violated subdivision (b) of Section 186.22. [¶]
(B) Any principal in the offense committed any act specified
in subdivision (b), (c), or (d).” (§ 12022.23, subd. (e)(1).)
Jury Verdicts
Defendant correctly contends that imposition of the 25
years-to-life enhancements in counts 1 and 2 was
unauthorized under section 12022.53, subdivision (d). He
reasons that the jury found not true the allegations that he
personally and intentionally discharged a firearm resulting
in death under subdivision (d), and that it was not charged
with determining whether a principal violated that
subdivision. The jury having found the allegations under
subdivision (d) not true, the trial court was without
jurisdiction to impose the 25 years-to-life enhancements.
These enhancements must be reversed and stricken.
We next turn to whether defendant is subject to the 20-
year enhancement under section 12022.53, subdivision (c).

-- 25 of 31 --

26
Failure to Allege Counts 1 and 2 Were Gang-
Related
Defendant contends the jury’s true findings on all
firearm allegations in counts 1 and 2 must be vacated.11
Defendant reasons that the information did not allege the
existence of the facts required under section 12022.53,
subdivisions (e)(1) and (j).12 These subdivisions require the
prosecution to plead and prove that a defendant violated
section 186.22, subdivision (b) (§ 12022.53, subd. (e)(1)), to
invoke a firearm use finding based on the conduct of a
principal. He further argues that the prosecution’s failure to
allege the crimes were gang-related violated his
constitutional right to due process because he did not have
proper notice of the enhancements. We reject both
arguments.
Defendant is mistaken to the extent he argues the
prosecution was required to expressly allege in counts 1 and
11 We need not further discuss subdivision (d), as the
jury found that allegation not true.
12 Section 12022.53, subdivision (j) provides as follows:
“For the penalties in this section to apply, the existence of
any fact required under subdivision (b), (c), or (d) shall be
alleged in the accusatory pleading and either admitted by
the defendant in open court or found to be true by the trier of
fact.”

-- 26 of 31 --

27
2 that the murders were gang related under section 186.22,
subdivision (b). Section 12022.53, subdivision (j), “only
requires the facts necessary to sustain the enhancement be
alleged in the information; it does not say where in the
information those facts must be alleged or that they must be
alleged in connection with a particular count in order to
apply to that count.” (People v. Riva (2003) 112 Cal.App.4th
981, 1001, fn. omitted (Riva).)
The information alleged in counts 1 and 2 that a
principal personally and intentionally discharged a handgun
within the meaning of section 12022.53, subdivisions (c), (d),
and (e)(1). One element of section 12022.53, subdivision
(e)(1), is that the defendant must have violated section
186.22, subdivision (b). The information further alleged that
the offenses in counts 3 and 4, which were part of the same
continuous transaction with counts 1 and 2, were committed
for the benefit of a criminal street gang under section 186.22,
subdivision (b)(1)(C). The information, read as a whole, was
sufficient to comply with the requirements of section
12022.53, subdivisions (e)(1) and (j). (See Riva, supra, 112
Cal.App.4th at pp. 1002–1003.)
For the reasons set forth above, we also hold defendant
was provided notice of the allegations by the information.
The court and parties at trial understood that the
enhancements in counts 1 and 2 alleged that a principal
discharged a firearm in the commission of gang-related
murders. Additionally, the jury was instructed, without
objection from defense counsel, that it must determine

-- 27 of 31 --

28
whether defendant committed all four charged offenses for
the benefit of a criminal street gang, pursuant to section
186.22, subdivision (b)(1). (CALCRIM No. 1401.) As to
counts 1 and 2, the jury was specifically instructed that
before it could decide whether the section 12022.53
enhancements applied, it must first have found that
defendant committed the crimes for the benefit of, at the
direction of, or in association with a criminal street gang
with the intent to promote, further or assist in criminal
conduct by gang members. (CALCRIM No. 1402.) The
verdict forms, to which there was no objection, included the
allegations in counts 1 and 2 that a principal personally and
intentionally discharged a handgun within the meaning of
section 12022.53, subdivisions (c) and (e)(1), and that the
crimes were committed for the benefit of a criminal street
gang, pursuant to section 186.22, subdivision (b)(1)(C).
There can be no doubt that defendant was on notice of the
allegations.
Defendant is subject to the 20-year enhancement
provided by subdivision (c) of section 12022.53. The cause is
remanded to the trial court for imposition of the 20-year
enhancement in counts 1 and 2, subject to the application, if
any, of Senate Bill No. 620 and section 12022.53, subdivision
(h), as discussed below.

-- 28 of 31 --

29
Senate Bill No. 620
Although the trial court was required to impose the
firearm enhancement at the time defendant was convicted,
while this appeal has been pending the Governor signed
Senate Bill No. 620, which amends former section 12022.53,
subdivision (h), to permit the trial court to strike a firearm
enhancement as follows: “The court may, in the interest of
justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section. The authority
provided by this subdivision applies to any resentencing that
may occur pursuant to any other law.” (Stats. 2017, ch. 682,
§ 1.) We conclude that the court should be afforded the
discretion to strike the section 12022.53, subdivisions (c) and
(e)(1) firearm use allegations under Senate Bill No. 620 in
the first instance, and we remand for that purpose.
Gang Enhancement
We agree with the parties that the trial court erred in
count 3 by imposing the 10-year gang enhancement under
section 186.22, subdivision (b)(1)(C). Section 186.22,
subdivision (b)(1)(C), authorizes a 10-year enhancement
where the underlying offense is a “violent felony,” as defined
in section 667.5, subdivision (c). Assault with a firearm
qualifies as a violent felony under section 667.5 where the
firearm use within the meaning of section 12022.5 has been

-- 29 of 31 --

30
charged and proved. (§ 667.5, subd. (c)(8).) The information
alleged defendant personally used a firearm within the
meaning of section 12022.5, subdivisions (a) and (d) in count
3, but the jury found the allegation not true. As a
consequence, the conviction in count 3 is not a violent felony
and imposition of the gang enhancement is unauthorized.
We order the trial court to modify the judgment to strike the
section 186.22, subdivision (b)(1)(C) enhancement in count 3.
(In re Renfrew (2008) 164 Cal.App.4th 1251, 1253 [an
unauthorized sentence may be corrected on appeal].)

-- 30 of 31 --

31
DISPOSITION
Defendant’s conviction for assault with a
semiautomatic weapon in count 3 under section 245,
subdivision (b), is reduced to assault with a firearm in
violation of section 245, subdivision (a)(2). We modify the
judgment to strike the 25 years-to-life firearm enhancements
in counts 1 and 2 (§ 12022.53, subdivision (d)), and the 10-
year gang enhancement in count 3 (§ 186.22, subdivision
(b)(1)(C)). We remand for resentencing in count 3, and to
permit the trial court to exercise its discretion under Senate
Bill No. 620, to either strike or impose the firearm
enhancements under section 12022.53, subdivision (c) and
(e)(1), in counts 1 and 2. In all other respects the judgment
is affirmed.
KRIEGLER, Acting P.J.
We concur:
BAKER, J. KIM, J.
 Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

-- 31 of 31 --