Filed 8/26/26 P. v. Shehata CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B334632
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA101814)
v.
JAQUAN G. SHEHATA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Scott Millington, Judge. Affirmed as modified.
Patricia S. Lai, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven E. Mercer and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2023, a jury convicted defendant and appellant Jaquan Shehata of one count of attempted premeditated murder and one count of first degree murder arising from two shootings in 2020. As to each count, the jury found true that Shehata personally used and intentionally discharged a firearm causing great bodily injury or death.
On appeal, Shehata contends there was insufficient evidence to corroborate the accomplice testimony implicating him as the shooter; the trial court erred by failing to provide a supplemental instruction in response to one jury question and by failing to investigate potential juror misconduct arising from another; and the trial court committed several sentencing errors.
We correct an error in the sentence and the award of custody credits and otherwise affirm the judgment. Sufficient evidence corroborated the accomplice testimony identifying Shehata as the shooter in both the attempted murder and murder. Further, the trial court did not err in its response to the jury’s question, by failing to investigate juror misconduct, or in declining to exercise its discretion to dismiss firearm enhancements.
FACTUAL AND PROCEDURAL BACKGROUND The People charged Shehata and Mahriya Lauriano with the March 2020 attempted premeditated murder of Brian Bell (Pen. Code, §§ 187, subd. (a), 664, subd. (a); count 1) and Shehata and Jonathan McEwen with the February 2020 murder of Eswin Batres (Pen. Code, § 187, subd. (a); count 2).1 As to both counts, the information alleged that Shehata personally used a handgun (§§ 12022.5, subd. (a), 12022.53, subd. (b)), personally and intentionally discharged a handgun (§ 12022.53, subd. (c)), and
1 All further statutory references are to the Penal Code.
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that he intentionally and personally discharged a handgun causing great bodily injury and death (§ 12022.53, subd. (d)).
McEwen accepted a plea deal before trial. Shehata was tried by a jury. The People’s Evidence A. February 29, 2020 shooting of Batres 1. McEwen
In October 2022, McEwen gave the prosecutor information about the shootings. He and the prosecutor subsequently signed an immunity and leniency agreement, which provided that McEwen would plead guilty or no contest to attempted murder and manslaughter. In exchange for his truthful testimony at trial, McEwen would be sentenced to a total term of nine years’ imprisonment, and the murder charge would be dismissed.
McEwen testified that in 2020, he and Shehata were affiliated with the Inglewood Weirdoz, or the Weirdoz Gangster Bloods (WGB). They claimed several blocks in Inglewood as territory. WGB’s territory overlapped or was adjacent to territory claimed by rival gangs, including 18th Street and Imperial Village Crips.2 McEwen identified a photograph of Shehata with the letters “WGB” tattooed on his chest. Shehata was an active member of WGB at the time of both shootings, but McEwen and Lauriano were not.
On February 29, 2020, McEwen drove to Fontana in his red Toyota Corolla to pick up Shehata. They headed to Lauriano’s
2 The People’s gang expert also testified that WGB, Imperial Village Crips, and 18th Street were rival gangs. The expert testified that the February 29 shooting occurred in WGB’s territory and the March 2 shooting occurred in territory claimed by the Imperial Village Crips.
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house on 108th Street in Inglewood. After Lauriano told McEwen she was not yet home, he decided to stop at a friend’s house nearby on 108th Street. McEwen drove around the block, came up the alley next to a church, turned west on 108th Street, and stopped in the street in front of his friend’s house. A Hispanic man walking on the sidewalk passed McEwen’s car and flashed gang signs for 18th Street. Shehata, who was in the front passenger’s seat, got out of the car and started walking in the man’s direction. Shehata shot the man. He tucked the gun into his waistband as he returned to the car. McEwen drove away from the area.
Around 40 minutes after the shooting, Deandre Collins, known as Nue Baby, texted McEwen. Collins asked which gang the victim was from.3 McEwen named the 18th Street gang.
Later that night, McEwen, Lauriano, and Shehata visited a friend in downtown Los Angeles. In a text exchange in the early hours of March 1, McEwen said he was with “Lil Face.” “Lil Face” was a reference to Shehata, who used the moniker FaceJr.
McEwen testified that he went home and Shehata and Lauriano stayed with the friend downtown. The following morning, McEwen passed by the scene of the shooting on his way to work. He did not see Shehata in the area of the shooting on March 1. That afternoon, Collins told McEwen by text that he did not see security cameras at the site of the shooting. Later
3 McEwen testified to the meaning of text messages he sent and received, which included unique spellings and jargon used by members of the gang.
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that day, McEwen, Lauriano, and Shehata rented a motel room several miles east of Inglewood.4 2. Sergio Estrella
Estrella lived on 108th Street about six or seven houses west of the church that was across the street from the scene of the shooting. He could see the scene from his kitchen window.
On the evening of February 29, Estrella saw a red Corolla pass through the area twice before stopping in the street in front of the church. A man got out of the passenger’s side of the Corolla. Estrella testified that the man was about the same height as him—five feet, nine inches—and “skinny.”5 Estrella then heard gunshots.
The car took off westbound on 108th Street, passing in front of Estrella’s house. Estrella saw a driver and a passenger in the car. He did not know if the driver was a man or a woman. The passenger had hair “kind of like dreads or something like that.” When asked to elaborate, he testified that the man had “[t]ightly curbed [sic] hair.”
Estrella saw the same Corolla at 4:00 p.m. the following day (March 1), parked about one block from the scene of the shooting. Two Black men sat in the front of the car. That same day, Estrella saw the Corolla drive past the church while he was in his car waiting to turn onto 108th Street from the alley. The
4 A record of the motel registration was admitted into evidence. The registration reflects an “in” time of “540” on March 1, 2020, and an “out” time of “11am,” but no date. McEwen’s name and the name “Mahriya Lee” appear on the document, which had space for only two names. 5 The parties stipulated that Shehata is five feet, nine inches tall.
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men looked at Estrella and then “ ‘look[ed] up towards the church.’ ” Surveillance footage from the area corroborates Estrella’s account of the Corolla driving past. Estrella noticed the passenger’s hair, but his descriptions of it at trial varied significantly and were inconsistent. However, to Estrella, the passenger looked like the same person he saw at the scene of the shooting “because of the hairstyle.”
Estrella did not identify Shehata as the passenger in the Corolla.
3. Law enforcement investigation Law enforcement obtained security camera footage from the church and a donut shop across the street from the scene of the shooting, recorded on February 29. A red Corolla drove in an alley that intersected with 108th Street just before 6:30 p.m. The Corolla appeared to go around the block, then again turned onto 108th Street from the alley and stopped in the middle of the street. A man in a white T-shirt got out of the passenger’s side of the Corolla, jogged in the direction of a pedestrian who had just walked by on the sidewalk, and raised his arms in a manner consistent with firing a gun. The man then ran back to the passenger’s side of the car, which hastily left the scene. Police found the victim, Batres, shot dead on the sidewalk of 108th Street.
Records for Shehata’s cell phone number on February 29 revealed that his phone received an incoming call at 6:01 p.m., placing him several blocks northeast of the crime scene.
The primary detective investigating the case testified that after McEwen told him Collins was the person he was texting after the February 29 shooting, the detective obtained a photograph of Collins from a law enforcement database. The
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photograph was admitted into evidence. It depicts Collins with a small, teardrop-shaped tattoo under the corner of his right eye and another indiscernible tattoo on the left side of his face.
B. March 2, 2020 shooting of Bell 1. Bell
In March 2020, Bell lived at a house near Cherry Avenue in Inglewood. The garage backed into the alley that ran between Cherry Avenue and the next street. On the morning of March 2, Bell was cleaning his garage. The garage door was open. He saw a red car pass through the alley and slow down. Five minutes later, someone began shooting at him with a handgun.
When interviewed at the Inglewood Police Department, Bell described the shooter as a light-skinned man with a tattoo on his face and some facial hair. When asked at trial if he recalled saying that the shooter had “either a teardrop or an upside down cross,” Bell responded, “Yeah, it was something in his face.” Bell also said the shooter was about six feet tall, and Bell believed the shooter was someone he knew personally and with whom he had an encounter several months earlier. Bell did not know Shehata. He identified Shehata from a photographic lineup, even though Shehata did not have a facial tattoo in the picture.
In court, Bell again identified Shehata as the shooter. Bell testified that when he looked at the photographic lineup he was “pretty sure” of the identification. At the time of trial, he was “100 percent sure.” Bell acknowledged that Shehata did not have a tattoo on his face and that he had never seen Shehata before the shooting. Bell attributed the inconsistency with his initial statement to police to the fact that he “was in a panic mode” when police initially interviewed him.
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2. McEwen
McEwen testified that on the morning of March 2, he, Lauriano, and Shehata left the motel in his Corolla to take Lauriano home. McEwen was driving, Shehata was in the backseat, and Lauriano was in the front passenger’s seat. While driving up an alley in Inglewood, they saw a man sitting in his garage. McEwen and Lauriano wanted to buy marijuana from the man, so McEwen drove around the block and stopped on Cherry Avenue where it intersected with the alley. Shehata and Lauriano got out of the car and went into the alley. McEwen heard gunshots. Shehata and Lauriano ran to the car and “jumped in the back passenger seat on the driver’s side.” Shehata was holding a gun when he got back in the car. McEwen “took off.”
About 20 minutes after the shooting, McEwen texted Collins that somebody in the territory of the Imperial Village Crips had been shot. Collins responded, “[b]asically telling [them] to calm down.” McEwen texted back, “can[’]t stop won[’]t stop.” McEwen called Collins three times within half an hour after the shooting.
McEwen took Lauriano home and drove Shehata back to Fontana. On the drive to Fontana, Shehata “wanted to like brag and tell people about” the shootings and wanted McEwen “to relay the message” to other people in their gang.
In the afternoon on March 3, Shehata sent McEwen a text asking if McEwen was “cool.” McEwen responded that he was and asked Shehata if he was “good.” Shehata again asked if McEwen was cool. McEwen confirmed that he was and said, “See u this weekend Mr. DOA.” By “DOA,” McEwen meant “Dead On Arrival.”
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3. Brando Del Arenal
Del Arenal had a view of Cherry Avenue from his living room. On the morning of March 2, he saw a red car parked in the middle of Cherry Avenue. A man and a woman got out of the car and walked down the alley. Del Arenal heard gunshots. He saw the man tuck a handgun into his waistband as he was coming out of the alley. Del Arenal testified the man was “maybe five-six,” but he could not provide further details about the man’s appearance. After refreshing his recollection with a transcript of his earlier police interview, Del Arenal testified that the man “looked kind of young” and “seemed like a light skinned Black person.”
4. Nicholas Bobbs
Bobbs was assigned to the gang unit in the Inglewood Police Department in March 2020. On March 2, 2020, Bobbs and his partner were driving in an unmarked car in Inglewood. At around 4:00 p.m., Bobbs saw a red Corolla that matched the description of a vehicle the police were looking for. Bobbs’s vehicle and the Corolla were stopped in traffic, headed in opposite directions.
Bobbs could see the Corolla’s occupants in the two front seats. Bobbs described the passenger as a light-skinned Black man, with a “thin goatee, thin mustache, and an afro.” Bobbs had an unobstructed view of the passenger for about one minute while they were stopped in traffic.
On March 12, Bobbs reviewed three photographs of Shehata at the police station. Bobbs positively identified Shehata as the passenger in the Corolla from a photograph in which Shehata had “afro hair sticking straight out.”
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At trial, Bobbs again identified Shehata as the passenger in the Corolla he saw on March 2. He was sure Shehata was the same person he saw three years ago in the car, even though his hair looked different.
5. Law enforcement investigation The March 2 shooting took place approximately one mile away from the February 29 shooting. Surveillance video footage recorded on March 2 showed a red Corolla driving down an alley that crossed Cherry Avenue at around 10:17 a.m. The Corolla appeared to drive around the block and come to a stop on Cherry Avenue, where it remained idling while two of its passengers walked into the alley on foot. After walking some distance, one of the individuals turned to the left, backed up, and raised his arms as if shooting a gun. The two passengers ran back to the Corolla and got in, one in the back, and the other in the front passenger’s seat. The Corolla left the scene.
Law enforcement determined the Corolla was registered to McEwen.
Cell phone records for Shehata’s number on March 2 reflect that Shehata was just north of the crime scene at Cherry Avenue around 4:30 p.m. The records showed subsequent tower activation in Los Angeles about 15 minutes later, Rancho Cucamonga just after 6:00 p.m., and San Bernardino just before 7:00 p.m., indicating Shehata was traveling eastbound during that time.
A criminalist determined that a single firearm fired the cartridge cases recovered from the February 29 and March 2 crime scenes.
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Motion for Acquittal, Verdict, and Sentence After the People rested, the defense moved for dismissal under section 1118.1. The trial court denied the motion.
The jury convicted Shehata on both counts and found the firearm enhancements true. The trial court imposed an aggregate sentence of 90 years to life.
Shehata timely appealed.
DISCUSSION
I. The Evidence Sufficiently Corroborated McEwen’s Testimony Identifying Shehata as the Shooter A. Legal principles On appeal, we uphold the jury’s verdict if there was substantial evidence to support it. (People v. Johnson (1980) 26 Cal.3d 557, 576–578.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id. at p. 578.)
The testimony of an accomplice is insufficient as a matter of law to support a conviction unless it is corroborated. (People v. Najera (2008) 43 Cal.4th 1132, 1137; People v. Cuevas (1995) 12 Cal.4th 252, 261.) Under section 1111, there must be evidence that “tend[s] to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
“ ‘The trier of fact’s determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of
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the crime.’ ” (People v. Romero and Self (2015) 62 Cal.4th 1, 32– 33 (Romero and Self).) Section 1111 “require[s] ‘evidence tending to connect the defendant with the crimes “without aid or assistance from the testimony of” ’ the accomplice. [Citation.] . . . [E]vidence corroborating accomplice testimony ‘ “need not . . .” [citation] . . . corroborate every fact to which the accomplice testifies [citation], and “ ‘may be circumstantial or slight and entitled to little consideration when standing alone.’ ” ’ [Citation.] But the evidence must nonetheless connect the defendant to the crime itself, rather than simply connect the accomplice to the crime.” (People v. Perez (2018) 4 Cal.5th 421, 452.)
“To determine if sufficient corroboration exists, we must eliminate the accomplice’s testimony from the case, and examine the evidence of other witnesses to determine if there is any inculpatory evidence tending to connect the defendant with the offense.” (People v. Falconer (1988) 201 Cal.App.3d 1540, 1543 (Falconer).) “ ‘ “The entire conduct of the parties, their relationship, acts, and conduct may be taken into consideration by the trier of fact in determining the sufficiency of the corroboration.” ’ [Citation.]” (People v. Rodriguez (2018) 4 Cal.5th 1123, 1128; People v. Trujillo (1948) 32 Cal.2d 105, 111.) We determine whether there is legally sufficient evidence to corroborate an accomplice’s testimony “without weighing the evidence and viewing the evidence in the light most favorable to the judgment.” (People v. Pedroza (2014) 231 Cal.App.4th 635, 650 (Pedroza).)
B. Discussion Shehata contends McEwen’s testimony identifying Shehata as the shooter in both crimes was insufficient to support the
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convictions because it lacked adequate corroboration. We disagree.
Bell identified Shehata as the shooter in the March 2 incident. This was significant corroboration of McEwen’s testimony inculpating Shehata. Shehata contends that inconsistencies in Bell’s eyewitness identification, and the primary detective’s use of unduly suggestive photographic lineups, undermine the corroborative value of Bell’s identification of Shehata as the shooter.6 However, in reviewing the sufficiency of non-accomplice testimony, “[i]t is the function of the trier of fact . . . to pass upon the strength or weakness of testimony tending to establish identification.” (People v. Blackwell (1967) 257 Cal.App.2d 313, 319 (Blackwell).) We do not reweigh such testimony or disturb inferences drawn from it that are supported by substantial evidence. (Id. at p. 320; see also People v. Lindsay (1964) 227 Cal.App.2d 482, 493–494 [strength of identification goes to weight of evidence and credibility of witnesses, which are “directed solely to the attention of the jury”].) Defense counsel extensively cross-examined Bell and the other witnesses regarding their descriptions and identifications. Counsel also thoroughly cross-examined the primary detective about his practices for photographic lineups. The jury’s verdict indicates that it resolved questions regarding the reliability of the identification evidence in the People’s favor. We do not reweigh evidence or credibility determinations when evaluating whether
6 Shehata does not argue that the photographic identifications violated due process or raise any other challenge to this evidence independent of his arguments pursuant to section 1111.
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accomplice testimony is sufficiently corroborated. (Pedroza, supra, 231 Cal.App.4th at p. 650.)
Bell’s identification of Shehata informed the relevance and value of other corroborating evidence. Forensic evidence established that the same gun was used in both shootings. This, when considered with Bell’s eyewitness identification, implicated Shehata as the shooter in the February 29 shooting.
In addition, cell phone location data placed Shehata in Inglewood on the days each shooting occurred. McEwen’s Corolla, in which Shehata was identified riding as a passenger on March 2, was involved in each crime. (See People v. Valdez (2012) 55 Cal.4th 82, 148 [testimony connecting defendant to car from which passengers exited on foot, fired shots, and returned to car “while the driver remained inside” corroborated accomplice testimony that defendant was the shooter].)
The similarity of the shootings also tended to connect Shehata to the crimes since Bell positively identified him as the March 2 shooter. Both shootings were carried out in the same fashion: the Corolla cased each scene by driving down alleys and around the block, passengers exited the Corolla on foot while the driver remained in the idling vehicle in the middle of the street, and, after shots were fired, the passengers returned to the Corolla to make a quick getaway. (See People v. Washington (1969) 71 Cal.2d 1061, 1093 [accomplice’s testimony that defendant robbed victim corroborated by testimony identifying defendant as participant in similar robberies on same night and in same vicinity, and by witness’s identification of car driven away from scene that “matched the description of the car given by other victims as the one in which defendant was riding”]; see also Blackwell, supra, 257 Cal.App.2d at pp. 320–321 [eyewitness
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descriptions of defendant and evidence that forged checks were passed in grocery stores in same city, bore same printed name, and used in connection with small purchases over brief period corroborated accomplice testimony that defendant conspired to commit forgery].)
On appeal, Shehata argues that individual pieces of evidence fall short of establishing that Shehata was the shooter. For example, Shehata argues that the video surveillance was not clear enough to identify him at the scene of either crime, evidence that the same gun was used in both shootings did not connect Shehata to the crime, and McEwen’s text messages did not expressly identify Shehata as the shooter. However, for evidence to sufficiently corroborate accomplice testimony, it need not “ ‘ “establish by itself . . . that the defendant committed the offense charged” ’ ” (People v. Rissman (1957) 154 Cal.App.2d 265, 277), “independently establish the identity of the victim’s assailant” (People v. Abilez (2007) 41 Cal.4th 472, 506), or “corroborate every fact to which the accomplice testifies.” (Romero and Self, supra, 62 Cal.4th at p. 32.) Instead, the evidence must only “tend[ ] to connect the defendant with the offense.” (Falconer, supra, 201 Cal.App.3d at p. 1543.) As explained above, the corroborating evidence in its totality sufficiently connected Shehata to each shooting. II. The Trial Court Did Not Abuse Its Discretion With Respect to the Jury Questions Shehata contends the trial court erred by failing to provide a supplemental response to the jury’s question about defense evidence and by failing to investigate juror misconduct. We disagree.
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A. The trial court’s response to the jury’s question about defense witnesses and alibi evidence was proper 1. Background
After the presentation of evidence, the trial court instructed the jury with CALCRIM No. 220: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
The court reiterated that the People bore the burden of proving Shehata’s guilt beyond a reasonable doubt in its instructions on circumstantial evidence; eyewitness identification; defendant’s out-of-court statements; deliberation and premeditation for attempted murder; first degree murder; and all firearm enhancements.
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The court also instructed the jury with CALCRIM No. 300, which states: “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” Further, in instructing the jury that Shehata had a constitutional right not to testify, the court stated that Shehata “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.”
During the defense closing argument, defense counsel began by informing the jury his argument would be shorter than the prosecutor’s because: “I don’t have the burden of proof.” In the prosecutor’s rebuttal argument, the prosecutor also informed the jury: “[Defense counsel] has absolutely no obligation to give you a reasonable explanation of the evidence because that’s not his burden.”
After deliberating for around an hour, the jury submitted three questions to the court. The jurors wanted to know if they could ask if Shehata had tattoo removal or a fake tattoo. They also asked why the primary detective had not investigated Collins. The third question was: “Why did the defense have no witnesses or alibi? Can we take into account that they had no witnesses or alibi?”
In a colloquy with counsel outside the jury’s presence, the court proposed responding to the jury’s third question by repeating the second paragraph of CALCRIM No. 220. Defense counsel requested that the court add that the jury “cannot consider that the defendant did not put on witnesses or an alibi as part of the deliberations.” The court denied the request.
The court provided the following response to the jury with respect to its third question: “A defendant in a criminal case is
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presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt.”7 2. Legal principles
“After a jury retires to deliberate, ‘[s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.’ [Citation.]” (People v. Franklin (2018) 21 Cal.App.5th 881, 887 (Franklin).) This also requires the court to “ ‘ “clear up any instructional confusion expressed by the jury.” ’ [Citation.]” (People v. Doane (2021) 66 Cal.App.5th 965, 980.)
“The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.) This requires a court to “do more than figuratively throw up its hands and tell the jury it cannot help. . . . It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (Ibid.) We review the trial court’s decision not to provide further instructions for an
7 The jury subsequently asked if there was “additional guidance/definition of reasonable doubt beyond what was provided in [CALCRIM No.] 220.” With the consent of both parties, the court responded: “No. Reasonable doubt is defined in CALCRIM [No.] 220.”
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abuse of discretion. (Franklin, supra, 21 Cal.App.5th at p. 887, fn. 4.)
3. Discussion
Shehata contends that the trial court erred by failing “to provide adequate supplemental instruction to the jury regarding whether the defense had any burden to produce evidence.” He argues the error impermissibly allowed the jury to believe the defense had a burden to prove Shehata’s innocence. We conclude the trial court’s response was not an abuse of discretion.
Although the trial court had previously instructed the jury that the People had the burden of proof, the defense had no corresponding burden, neither party had to produce all witnesses with information about the case, and the defendant could rely on the state of the evidence, the jury asked why the defense did not present an affirmative case at trial and whether this fact should impact its deliberations. The jury’s question may have reflected that it did not understand the practical effect of the court’s instructions on the parties’ burdens at trial or on the jurors’ consideration of the evidence during deliberations. Indeed, the prosecutor suggested the jury’s questions indicated it had a fundamental misunderstanding of the law.
The trial court’s response, however, addressed any inclination the jury may have had to shift the burden of proof to the defense. The instruction reiterated that Shehata was presumed innocent and that the People were required to prove Shehata’s guilt beyond a reasonable doubt. This reinforced the prior instructions and the statements of both counsel during closing arguments reminding the jury that the defense had no burden of proof.
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Further, we agree with the People that the trial court reasonably rejected the defense request for a supplemental instruction categorically prohibiting the jury from considering Shehata’s failure to call witnesses or present alibi evidence. As explained in People v. Ford (1988) 45 Cal.3d 431, “The failure of a defendant to call an available witness whom he could be expected to call if that witness testimony would be favorable is itself relevant evidence.” (Id. at p. 448.) It was permissible for the jury to consider the state of the evidence. (People v. Steskal (2021) 11 Cal.5th 332, 351 [prosecutors “may make ‘ “comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses” ’ ”]; People v. Rhoades (2019) 8 Cal.5th 393, 404, 448 [prosecutor commented on defense’s failure to call relevant witness to corroborate defendant’s alibi testimony]; People v. Wilson (2005) 36 Cal.4th 309, 338 [prosecutor permissibly pointed out defendant did not present evidence supporting his testimony that he shot and killed victim out of fear co-assailant would kill him]; People v. Grant (1968) 268 Cal.App.2d 470, 475 [“it is permissible to refer generally to the failure of the defense to offer any evidence in opposition to the People’s case”].)
We acknowledge that the trial court’s response did not directly answer the jury’s question of whether it could take into account that Shehata “ha[d] no witnesses or alibi.” It may have been wise for the trial court to repeat the second half of CALCRIM No. 355, informing the jury that the defendant “may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.” But even without further instruction, the court’s response addressed the key issue and protected Shehata’s fundamental rights by
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instructing the jury, correctly, that the People bore the burden of proof, beyond a reasonable doubt, as to Shehata’s guilt and as to every element of the crimes. We find no abuse of discretion.
B. The trial court did not abuse its discretion by failing to investigate a juror’s question about the consequences of deadlock 1. Background
On the second day of deliberations, the jurors informed the court that they had reached a “stalemate” as to both counts. The court polled the jury as to the likelihood of reaching a unanimous verdict. During the inquiry, one juror began to ask the court a question about the consequences of a deadlock. The court interrupted the juror and directed her to submit the question in writing. After completing its inquiry, the court concluded the jury was not hopelessly deadlocked and ordered the jurors to resume deliberations the following morning.
When proceedings began the next day, the court informed counsel that it had received the following written question from the juror: “If we as a jury say that we’re at a deadlock and say there’s nothing the judge can do to help, does the case get dropped (i.e.[,] the defendant is released)?” After conferring with counsel, the court gave the following response to the jury before it resumed deliberations: “It is your duty to talk with one another and to deliberate in the jury room. You should try to agree on a verdict if you can. Each of you must decide the case for yourself but only after you have discussed the evidence with the other jurors. You must reach a verdict without any consideration of punishment.” Neither the People nor defense counsel objected to the court’s response.
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2. Legal principles
Section 1089 authorizes a court to discharge a juror if there is good cause to find the juror is “unable to perform his or her duty . . . .” (§ 1089.) “Good cause exists to discharge a juror when the juror loses his or her ability to render a fair and impartial verdict based on the evidence presented at trial.” (People v. Barton (2020) 56 Cal.App.5th 496, 508.)
“ ‘ “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] . . . [¶] . . . [A] hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case. [Citation.]” [Citation.]’ [Citations.] ‘ “ ‘The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.’ ” [Citation.]’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 702.)
3. Discussion
Shehata argues that the juror’s question demonstrated “an obvious refusal to follow” the court’s original instruction that the jury had to reach a verdict “without any consideration of punishment,” thus triggering the court’s duty to investigate under section 1089. We disagree. The juror’s question did not constitute misconduct under section 1089.8
8 Because we do not resolve the claim based on forfeiture, we need not address Shehata’s related claim of ineffective assistance of counsel.
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“ ‘[I]n cases not involving the death penalty, it is settled that punishment should not enter into the jury’s deliberations.’ [Citations.] ‘It is fundamental that the trier of fact, be it court or jury, must not consider the subject of penalty or punishment in arriving at its decision of guilt or innocence.’ [Citation.] Sentencing ramifications are ‘irrelevant to the jury’s factfinding function’ in a noncapital case. [Citation.] That is because ‘knowledge of the permitted or statutorily required punishment may cause or influence the jury to return a verdict designed to result in a particular penalty, rather than one based on the facts and applicable law of a case.’ [Citation.]” (People v. Flores (2021) 70 Cal.App.5th 100, 110.)
Here, there is no evidence that considerations of punishment entered the jury’s deliberations. There is no evidence that the jury at large considered the effect of deadlock during deliberations, or that there was even any opportunity for the jury to do so. A single juror posed the question during the court’s inquiry about deadlock; the court directed the juror to submit the question in writing; the trial court excused the jury for the day immediately after it completed its inquiry; and the court indicated it had already received the juror’s note the following morning and provided an answer before the jury resumed deliberations.
A single juror’s question about the consequences of deadlock, properly addressed to the court with no suggestion of any wider discussion among the jury, falls far short of misconduct requiring investigation by the trial court. The juror’s question alone did not constitute misconduct. Indeed, the juror’s decision to ask the court about the consequences instead of speculating with fellow jurors weighs against a finding of misconduct. (See
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People v. Lucas (2014) 60 Cal.4th 153, 320, fn. 64 [jury that “dutifully expressed its concern by asking the court” about deadlock “instead of relying on speculation or extrinsic information” was not misconduct and did not trigger trial court’s duty to inquire further], disapproved on other grounds by Romero and Self, supra, 62 Cal.4th at p. 53, fn. 19.) The court’s response to the juror’s question reiterated that the jury could not consider punishment and there was no indication the juror failed to abide by the instruction after it was repeated. III. Sentencing Issues The court sentenced Shehata to 40 years to life for premeditated attempted murder (count 1), consisting of 15 years to life plus an additional 25 years to life under section 12022.53, subdivision (d), and a consecutive 50 years to life for murder (count 2), consisting of 25 years to life on the base count plus an additional 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court stayed the enhancements under section 12022.53, subdivisions (b) and (c) and section 12022.5, subdivision (a). Defense counsel informed the court that Shehata had 1,253 days of actual custody credits.
A. Dismissal of firearm enhancements under section 1385 1. Background
At sentencing, the People moved to stay all firearm enhancements pursuant to the policy directive of the District Attorney at the time. Defense counsel joined in the People’s request. The court denied the motion. The court reasoned that Shehata, McEwen, and Lauriano “were driving around looking for people to kill,” and Shehata committed “cold blooded” murder and attempted murder, noting that he shot Batres in the back
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and his shooting of Bell was unprovoked. The court acknowledged it had the discretion to dismiss firearm enhancements due to the presence of two mitigating circumstances: the existence of multiple enhancements and the possibility that the application of an enhancement would result in a sentence greater than 20 years. Yet, the court found “that dismissing those enhancements would endanger public safety. [¶] As I indicated you are a cold blooded killer driving around the community attempting to kill anybody that you ran into.”
2. Discussion
Shehata contends that the trial court abused its discretion in determining that dismissing the firearm enhancements would endanger public safety based solely on his current level of dangerousness. We disagree.9 Section 1385, subdivision (a), authorizes the trial court to strike a charge or enhancement “in furtherance of justice.” Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) amended the statute to require courts to afford “great weight” to specific mitigating circumstances. (§ 1385, subd. (c)(2)(A)–(I).) These circumstances include when “[m]ultiple enhancements are alleged in a single case”—requiring dismissal of “all enhancements beyond a single enhancement”— and when “[t]he application of an enhancement could result in a sentence of over 20 years”—requiring dismissal of the enhancement. (Id., subd. (c)(2)(B), (C).) “Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.
9 The People did not respond to this argument in their appellate briefing.
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‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (Id., subd. (c)(2).)
Shehata’s argument on appeal relies on People v. Gonzalez (2024) 103 Cal.App.5th 215 (Gonzalez), which concluded that a trial court abused its discretion by expressly relying solely on the defendant’s dangerousness at the time of sentencing to determine that striking an enhancement under section 1385 would endanger public safety. The Gonzalez court explained that while a trial court appropriately considers current dangerousness, “a crucial part of the inquiry is how the dismissal of the enhancement will impact the length of the defendant’s sentence.” (Gonzalez, at p. 228.) Thus, trial courts deciding whether dismissing an enhancement would endanger public safety must consider whether the defendant has no prospect of being released until elderly even without the enhancement, and, in the case of a lengthy indeterminate sentence, that the Board of Parole hearings (and the Governor in murder cases) will also assess the ongoing dangerousness of any defendant before release on parole. (Ibid.)
Shehata argues that the trial court abused its discretion here by focusing singularly on Shehata’s present conduct. He contends the matter should be remanded to allow the trial court to conduct a forward-looking inquiry as articulated in Gonzalez. We find no abuse of discretion on the record before us. Although the court described the nature of Shehata’s current crimes and the danger to public safety factor, the court did not state that its public safety concerns were based solely on Shehata’s current level of dangerousness. On a silent record, we presume that the trial court properly considered all relevant factors in declining to
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dismiss the enhancement. (People v. Ramirez (2021) 10 Cal.5th 983, 1042 [“Absent evidence to the contrary, we presume that the trial court knew the law and followed it.”]; People v. Williams (2018) 19 Cal.App.5th 1057, 1063 [determination of a defendant’s danger to society “is necessarily a forward-looking inquiry” that requires a trial court to “look to when a defendant would be released if the petition is granted and the defendant is resentenced”].)
Gonzalez is therefore distinguishable. There, the trial court stated: “ ‘I think presently [the defendant] does represent a danger to society, and for that reason, while I am mindful of the prohibition set forth in [section] 1385, I do think it is appropriate for the Court to impose an additional 25 years to life for the gun use enhancement . . . .’ ” (Gonzalez, supra, 103 Cal.App.5th at p. 224, italics added.) The Fourth District concluded that the trial court’s “singular focus on whether the defendant currently poses a danger” was error. (Id. at p. 228.) The record here does not establish that the trial court employed the same “singular focus” in declining to exercise its discretion.
To the extent Shehata contends the trial court abused its discretion by failing to expressly address the length of his sentence, this argument fails. The trial court was not required to identify the time period it was relying on in declining to dismiss the enhancement or to explain its reasoning for declining to do so. (People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [court does not need to use “particular language” when declining to dismiss an enhancement; no statutory requirement that a trial court must state its reasons for declining to dismiss on the record].)
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B. Shehata’s sentence for attempted murder and calculation of custody credits The trial court sentenced Shehata to 15 years to life for deliberate and premeditated attempted murder. Shehata contends, and the People concede, that this sentence was incorrect as a matter of law.
Willful, deliberate, and premeditated attempted murder is punishable by life with the possibility of parole. (§ 664, subd. (a).) A defendant convicted of attempted murder cannot be paroled until he has served at least seven years of his sentence. (§ 3046, subd. (a)(1); People v. Jefferson (1999) 21 Cal.4th 86, 96 [§ 3046 sets minimum term for defendant convicted of premeditated attempted murder].) We modify the judgment to reflect a sentence on count 1 of seven years to life.
Shehata also argues that he is entitled to an additional day of custody credit. Shehata was arrested on March 19, 2020, and sentenced on August 24, 2023. He is therefore entitled to 1,254 days of custody credit. (People v. Smith (1989) 211 Cal.App.3d 523, 527 [§ 2900.5 requires court “to award credits for all days in custody up to and including the day of sentencing”].)
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DISPOSITION
We modify the judgment as follows. The sentence on count 1 is corrected to reflect the seven-year minimum term for attempted premeditated murder. The judgment must also reflect Shehata’s presentence actual custody credits of 1,254 days. We direct the trial court to amend the abstract of judgment to reflect the above corrections and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ADAMS, P. J.
We concur:
HANASONO, J.
KARNOW, J.*
* Retired Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.