People v. Lattin

Filed 12/18/24

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083262

Plaintiff and Respondent,

v. (Super. Ct. No. FVI22003394)

STEPHEN JAMES LATTIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino
County, Melissa Rodriguez, Judge. Affirmed in part, reversed in part and
remanded for further proceedings.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of parts DISCUSSION III, IV, V,
VI.
Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
Stephen James Lattin contends a gun must be loaded to commit

assault with a firearm unless it is used as a club or bludgeon. (Pen. Code,1
§ 245, subd. (a)(4).) He asserts the present ability element of assault cannot
be satisfied with an unloaded gun if the defendant is too far from the victim
to inflict injury with the firearm as a club or bludgeon. Based on his
understanding of the law, he requested a pinpoint instruction that an assault
with a deadly weapon is not committed by a person “pointing an unloaded
gun . . . with no effort or threat to use it as a baton” or “pointing an unloaded
gun in a threatening manner” at another person. The trial court declined to
give his pinpoint instruction to the jury. He asserts this was prejudicial
error, and further claims the evidence was insufficient on present ability to
support his conviction for assault with a firearm. We reject both contentions.
In the published portion of our opinion, we conclude there is no
brightline rule in California that, unless it is used as a club or bludgeon, a
gun must be loaded for an assault to be committed. Proof that a firearm was
unloaded can be a complete defense to charges of assault, but it is not a
complete defense in all circumstances as a matter of law. If ammunition is
readily available—and here there was sufficient evidence it was—it is a
question for the jury whether a defendant with an unloaded gun possesses
the means to load the gun and shoot immediately, or whether he is too many
steps away from inflicting injury to have the present ability to commit
assault.

1 Undesignated statutory references are to the Penal Code.

2
In reaching this holding, we acknowledge our disagreement with the
Judicial Council of California Criminal Jury Instructions. One of the practice
notes for CALCRIM No. 875, the model instruction for assault, states a “gun
must be loaded unless used as [a] club or bludgeon” in order “to have [the]
present ability to inflict injury.” (Use Note to CALCRIM No. 875,
capitalization omitted.) We respectfully disagree and suggest the authors
reconsider the note.
In the unpublished portion of our opinion, we reject Lattin’s other
claims of trial error, but we conclude the trial court erred at sentencing when
it imposed the upper term based on sentencing factors that were neither
found true by a jury beyond a reasonable doubt nor subject to an exception to
this fundamental right. (Apprendi v. New Jersey (2000) 530 U.S. 466, 483–
484 (Apprendi).) We thus affirm the judgment with respect to all four
convictions, but we vacate the sentence and remand for proceedings
consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Charges and Sentence
In December 2018, the People filed an amended information alleging
Lattin committed four counts of assault with a firearm (§ 245, subd. (a)(2);
counts 1–3, 6) and four counts of criminal threats (§ 422; counts 7–10) against
four victims—Michael B., Jz.R., An.D., and Anthony R. As to these eight
counts, the People alleged Lattin personally used a firearm (§ 12022.5,
subd. (a)) and committed the offenses as hate crimes (§ 422.75, subd. (a)). He
was further charged with two more counts of being a felon in possession of a
firearm (§ 29800; count 4) and a felon in possession of ammunition (§ 30305;
count 5). A year later, a jury acquitted Lattin on all counts of making a

3
criminal threat and all hate crime allegations. It convicted him on the
remaining charges, including the four counts of assault with a firearm, and
found the gun enhancements to be true.
In Lattin’s first appeal, we reversed the four convictions for assault
with a firearm and the associated gun enhancements because the trial court
prejudicially erred in failing to instruct on self-defense. We upheld the other
convictions for felon in possession of a firearm and ammunition. (People v.
Lattin (July 28, 2022, D079150) [nonpub. opn.].)
On remand, the People dismissed and refiled the assault with a firearm
counts in a new case. In the operative information filed in December 2022,
Lattin was again charged with four counts of assault with a firearm against
the same victims (§ 245, subd. (a)(2); counts 1–4), each with a personal gun
use enhancement (§ 12022.5, subd. (a)). Nine sentencing aggravating factors
were alleged within the meaning of section 1170, subdivision (b) (hereafter,
1170(b)).
In March 2023, a second jury convicted Lattin of one count of assault
with a firearm and found true the gun enhancement with respect to Michael
only. As to the remaining three counts involving Jz.R., Anthony, and An.D.,
the jury convicted Lattin on the lesser-included misdemeanor offenses of
simple assault (§ 240).
In April 2023, the trial court sentenced Lattin to a total prison term of
nine years and four months. It selected the upper term of four years on the
assault with a firearm conviction plus four years for the gun enhancement
and imposed concurrent six-month terms for each of the simple assault
convictions. The court then resentenced him on his convictions from the
earlier trial, imposing one-third the midterm of eight months for possession

4
of a firearm by a felon, and one-third the midterm of eight months for
possession of ammunition by a felon.
II.
Trial Evidence
A. Testimony by the Victims, Joshua H. and Trayshawn W.
An.D. has two children, Jz.R. and Anthony. In 2017, Jz.R. was 15
years old and Anthony was 14. Michael was the children’s godfather, but
they regarded him as their father or stepfather and called him “dad.”
On April 5, 2017, around nine or 10 o’clock, the family drove in two cars
to a gas station in Helendale, California. They went to get gas and see two
friends who worked at the station, Joshua H. and Trayshawn W.
Shortly after the family got there, Lattin drove into the parking lot
with his two young children. He parked his car and went into the gas station
market. He was already “angry” when he arrived.
An.D., Jz.R., and Anthony knew Lattin from a prior incident that took
place in front of their home a few months earlier. Two boys from Jz.R’s
school had called Anthony “the N word” and were “being racist.” Lattin drove
by and the boys “flagged him down.” Lattin reversed his vehicle, came back,
took out a shotgun, and “aim[ed]” it at Anthony.
When Anthony saw Lattin at the gas station, he told his family, “That’s
the guy. That’s the guy who pulled the shotgun on us.”
Lattin came out of the market “very angry.” “He just burst out” and
started “[r]anting in anger,” using racial slurs, and “going off.” Looking at

the family, he said: “You bitches gonna get it.” “I’m a [P]eckerwood.”2 He

2 As we later explain, a gang detective testified that “Peckerwood”
typically refers to “white inmates or white criminals [who] are involved in
gang and criminal activity.”

5
said he was going to kill them. The family had said nothing to provoke
Lattin. They were terrified.
Although An.D. and her children were Hispanic, Lattin (like others)
perceived them and Michael to be African American. Joshua and Trayshawn
are also both African American.
As Lattin was yelling, he went to the trunk of his car and pulled out a
shotgun. He racked it once. Lattin then “wave[d]” the shotgun “around
towards” the family and pointed it at each one of them. All the while, he
continued to say, “You bitches gonna get it” and “I’m from [P]eckerwood.”
Jz.R. heard him say “he was going to lynch us niggers.”
There was no testimony by any witness that anything came out of the
shotgun when Lattin racked it at this point in time. Jz.R. “never saw
anything come out of the [shot]gun”; she “never saw ammunition at any
point.” But she was not focused on “shotgun shells” that night as she was
just worried about her family. An.D. testified Lattin was “pumping” the
shotgun but “no ammo came out because he didn’t pull the trigger.” Jz.R.,
Anthony, and Trayshawn also did not see any shotgun shells in the fabric
cartridge holder that was attached to the shotgun.
Lattin pointed the shotgun at “everybody in the parking lot.” He said
he was going to kill them. Jz.R., Michael, Anthony, and An.D. each thought
they were going to die that night. Lattin then put the shotgun back in his car
and “sped off.”
To everyone’s surprise, Lattin returned a few minutes later. With
screeching tires, he drove his car around the parking lot in a big circle. An.D.
and Jz.R. were standing outside An.D.’s car and he “almost sideswiped” them
when he passed by.

6
The family had gotten back into their two cars to leave. But Lattin got
out of his car and started walking towards Michael’s car, “like, he wanted to
fight or something.” Michael believed if Lattin could get his shotgun from the
trunk, “he would have been shooting.” Concerned about the shotgun, Michael
put his car in reverse toward Lattin. Michael testified he did not hit Lattin
with his car, but according to Anthony and Joshua, the car made contact and
knocked Lattin to the ground.
Michael got out of his car and the two men began fighting. Joshua
heard Michael tell Lattin repeatedly, “I’m not letting you get to that gun.”
Michael’s “focus was to keep [Lattin] from going to the trunk to get the gun.”
While the two men were fighting, Anthony took the keys out of the
ignition of Lattin’s car and threw them into a field. He did not want Lattin to
leave again. As he was getting the keys, Anthony did not see any shotgun

shells in the car.3 He explained the interior of the car was dark and he was
only focused on getting the keys out.
Anthony saw that Lattin was “getting the best” of Michael so he joined
the fight. He kicked Lattin while he was on the ground and Michael punched
Lattin several times in the face. Lattin’s nose and lips were bloody, and he
had a “huge knot” on his head, about two inches big, that extended down to
the right side of his face.
Lattin eventually stopped fighting and told Michael he was sorry.
Michael “thought he was genuine” so he let Lattin get up. But after Lattin
caught his breath, Michael heard someone yell, “he gots a gun.” Michael
looked back and saw Lattin in his car pointing the shotgun at him. At that

3 At the first trial, Anthony testified he saw “brightly colored shells” in
the car but left them there.

7
point, Michael saw Lattin “make a motion with the shotgun in which he
grabbed the bottom front of it and pulled it back and forth.” He saw “[a]n

orange shell” eject out from the shotgun into Lattin’s car.4 Michael “took off
running” into the dirt field.
An.D and Jz.R. gave somewhat different accounts as to what happened
after Lattin almost sideswiped them when he returned. According to An.D.,
Lattin threw rocks at her and Jz.R. and then “popped” his trunk and got his
shotgun. He “pumped it”—making a “ching, ching” sound—and started
pointing it at her and her daughter. At some point, the family had gotten
back into their cars to leave. But then Michael got out of his car and
approached Lattin. Lattin pointed the shotgun at Michael and “pumped it”

again.5 As the two men began to fight, An.D. and Jz.R. ran to the market for
safety. Inside, An.D. called 911. On the audio recording of the 911 call,
An.D. told the dispatcher that Lattin pulled a shotgun on her and her kids
and was “out there trying to kill us.” As she was speaking with the
dispatcher, An.D. said, “He just cocked the gun!” An.D. explained she had

4 Defense counsel attempted to impeach Michael with his prior testimony
from the preliminary hearing. At that time, when Michael was asked, “You
saw him making the pumping motion?” Michael responded he did, several
times. Defense counsel then asked, “But nothing came out of the gun?”
(Italics added.) To that question, Michael answered, “I didn’t hear nothing
when I ran to the dirt field I hit the ground and I just started running until I
went, you know, where it’s dark over there.” (Italics added.) At trial, on
redirect, Michael explained he was “referring to gunfire and bullets being
shot out of the gun” when he testified, “I didn’t hear nothing.”

5 An.D. acknowledged that at the preliminary hearing she testified
Lattin “pump[ed] or rack[ed]” the shotgun “five to ten times” and “nothing
came out.”

8
“some difficulty seeing out of the storefront,” in part because her diabetic
condition makes her vision blurry.
Jz.R. testified that, after Lattin almost sideswiped her and her mother,
Michael nearly hit Lattin when he was reversing his vehicle. She did not see
Michael actually hit Lattin. Lattin “caught his balance” and then went to the
driver side window of Michael’s car and “start[ed] socking him, punching him
through the window of the car.” Michael got out and the two men began to
fight. Jz.R. tried to call 911 but her phone was not working. Joshua and
Trayshawn then told her and her mother to run into the market. Anthony
stayed outside to help Michael fight Lattin, but she did not see the fight.
Through a store window, Jz.R. saw Lattin try to leave but when he realized
his keys were gone, he went back and “got his shotgun and tried to shoot”
Michael. She watched as Lattin “cocked [the gun] twice” and “tried to shoot
at [her] dad . . . directly at his back as he wasn’t looking.” This time she also
did not see anything come out of the gun or any ammunition, including
“shotgun shells hanging from the gun.”
Right when Lattin had “cocked” or “racked” the shotgun again and
aimed it at Michael, a group of people who knew Lattin pulled up into the gas
station parking lot in two vehicles, a blue pickup truck and a black sedan
(later identified as a black Mazda). They called him “Stevo” and “tried to
calm [Lattin] down.” They pleaded with him “not to do it, not to shoot and
don’t do it.”
Lattin stopped aiming the shotgun at Michael and gave it to the people
in the black Mazda. They began to drive off with the shotgun, but their car
“broke down” and they were unable to leave. Just as An.D. told the
dispatcher on the 911 audio recording that Lattin had put the shotgun in a

9
black vehicle with other people, sheriff’s deputies arrived. An.D. screamed to
the deputies, “He’s armed and dangerous! It’s in the black car.”

B. Lattin’s Testimony6
Lattin drove his car, with his son and daughter, to the gas station on
April 5, 2017. As he opened his car door, he saw Anthony and Michael
standing near the gas pumps. One of them said to Lattin, “ ‘What the fuck
are you doing here, cracker? We are going to fucking smoke you and your
family.’ ” They “went into a past experience.” Lattin initially ignored the
remarks but became “agitated” by them once inside the market.
When he returned to his car, Lattin saw his son “hanging” out the car
window and heard Anthony and Michael “still saying something.” Lattin
then saw Michael “clutching his waist” while repeatedly saying, “ ‘I will get
you and your family’ ” and “ ‘You ain’t gonna do nothing. You ain’t nothing
but a punk bitch.’ ” Worried that Michael was armed and believing he and
his two children might be “kill[ed],” Lattin grabbed his shotgun from his car
trunk, and, while sitting inside the car, pumped it about four or five times “to
make sure it was cleared.” Lattin claimed he never pointed the weapon at
any of the victims. He also denied calling them the “ ‘N’ word,” saying he was
“of Peckerwood,” or threatening to “kill” them.
When asked if he had any “shotgun cartridges, red, orange, or any
other color” with him during the encounter, Lattin testified, “I’m almost a
hundred percent certain there was nothing in there as far as shells or rounds.
I’m almost positive,” then added, “I don’t know for sure.” When asked why he

6 Lattin did not testify at the second trial, but the People introduced his
sworn testimony from the first trial through a reader. Our summary of his
testimony is taken from our decision in the prior appeal. (People v. Lattin,
supra, D079150.)

10
retrieved an unloaded shotgun in that circumstance, Lattin testified, “To be
honest, I don’t know.” He explained he was “depressed” and “emotional” due
to the recent loss of a son, and that he and his wife had argued earlier that
night. Lattin said he believed that, if in fact Michael had a gun, it might “be
the easiest way to go out.”
Lattin left the gas station because his children were in the car and his
son was scared. After dropping them at home, Lattin drove back to the gas
station to look for his wallet. When he returned, Lattin was surprised to see
Anthony and Michael still at the gas station. He denied driving his car close
to An.D. or her daughter. He also denied loading his shotgun before
returning to the station.
After being pelted with rocks, Lattin stopped his car in the parking lot
and got out. Lattin heard a “screech[ing]” sound and, without warning, was
struck “full-on” by Michael’s car, knocking him to the ground. Once on the
ground, Lattin was “pummeled” by Michael, who at some point was joined by
Anthony. Lattin suffered a bloody nose and lip, a contusion on his forehead,
and a possible concussion, leaving him in a “fog.”
Lattin managed to return to his car but found the keys missing from
the ignition. As he sat in his car, Michael opened the driver-side door and
continued his attack. Lattin then saw a black-colored Mazda being driven by
a friend arrive at the gas station. Lattin’s wife and another female were also
in the Mazda.
During cross-examination, Lattin testified he could not “recall”
retrieving the shotgun from his car after he returned to the gas station. Nor
could he “recall” how the shotgun ended up in the trunk of his friend’s Mazda.
The prosecutor asked Lattin, “But you don’t remember handing over
the [shot]gun, handing over the ammunition to Thomas [the friend and driver

11
of the Mazda], or anything from the black car?” (Italics added.) Lattin
answered, “I’m sure I didn’t, but I don’t remember. I can’t say yes or no for
certain. I can’t.”
Lattin admitted that at least two of the shotgun shells found in the
center console of the Mazda would work in his shotgun, and that he was
“familiar” with those shells.
C. Detective Malcolm Page
Detective Malcom Page was among the deputies who responded to the
gas station. Page, a former firearms instructor, also testified as the People’s
gun expert.
At the scene, deputies recovered a “12-gauge Mossberg shotgun” from
inside the trunk of the black Mazda driven by Lattin’s friend. It was
unloaded and appeared operable. The weapon was “a black pump-action
shotgun” with an approximate 16-inch barrel and had “multiple accessories.”
There was a “folding stock” that folded over on top of the weapon system. A
“5 shot[ ]” square cartridge holder was affixed to the folding stock. The front
portion underneath the weapon system that is used “to chamber or to rack it”
had a fabric attachment.
There were no shells in the cartridge holder. There were no shells in
Lattin’s car and no shells on the ground in the area surrounding the gas
station. There were also no shells in the trunk of the black Mazda. However,
deputies found “three live 12-gauge cartridges” in the black Mazda, inside a
cup holder near the center console “just behind the shifter.” The ammunition
was “compatible” with the shotgun. No other firearm or “anything related to
any firearms of any other caliber” were found inside the Mazda.
Detective Page explained in detail how the shotgun worked when it was
racked, both when it was loaded and unloaded, and what an observer would

12
see when this happened. To load the weapon, the “forend needs to be pumped
forward to close the chamber or the action, and it [then] needs to be pumped
backwards to eject expended cartridges and to clean the weapon system.”
When the shotgun magazine in this type of shotgun is loaded with a single
cartridge and racked, the cartridge is pushed into the chamber and locked
into place. When the shotgun is loaded with two cartridges and racked, one
cartridge is pushed into the chamber and locked in place and one “remain[s]
underneath as the next cartridge on deck, ready to be loaded into the
weapon.”
Significantly, once a cartridge is locked into place in the chamber, the
user cannot rack the gun again unless he either pulls the trigger or presses
the “firearm release,” which ejects the chambered cartridge “outside and
away from the weapon.” Thus, if the shotgun magazine is loaded and racked
once, a “shell goes into the chamber.” In order to rack it again, a shell must
be expended. Explained another way, if the shotgun “is racked at least twice
and it [is] loaded, it expends a shell, assuming it’s operating correctly.” By
contrast, when this type of pump action shotgun is racked repeatedly when it
is unloaded, “nothing is going to happen.” “There’s nothing in the tube
magazine, nothing to get released to kind of get in line to be chambered next.”
Detective Page also gave his opinion as to how long it would take to
load the shotgun: It would take only “a second or two” for someone competent
and familiar with the shotgun to place a shell inside the magazine and rack
the shotgun so “it’s ready to fire.”

13
DISCUSSION
I.
No Reversal for Instructional Error
A key dispute at trial was whether Lattin had the present ability to
commit assault. The prosecution had two theories for why Lattin had the
present ability to apply force with the shotgun. The prosecutor argued the
evidence showed the shotgun was either loaded, or if not loaded, the evidence
showed Lattin had ammunition readily available and could load it within
seconds. The defense theory, accordingly, was “there was no evidence that
the [shot]gun was loaded or was ever near any shotgun shells.”
Lattin requested a pinpoint instruction to link the evidence at trial to
his defense theory for why the prosecution failed to prove present ability,
which the trial court refused. We agree he was entitled to have the jury
provided with additional instruction under the particular circumstances
presented here. The standard instruction (CALCRIM No. 875) did not fully
and adequately advise the jury on the element of present ability in light of
conflicting evidence that the shotgun may or may not have been loaded and
that Lattin may or may not have had the means to quickly load it. But he
was not entitled to the pinpoint instruction as he had drafted it.
Lattin’s proposed instruction rested on an incorrect understanding of
the law. In his view, there is a brightline rule in California that a gun must
be loaded for a person to commit an assault with a firearm except under the
unusual circumstance where it is used as a club or bludgeon. We reject such
a brightline rule. We hold an assault with a firearm can be committed with
an unloaded gun by a defendant who has ammunition available and the
means to load it immediately.

14
Thus, the trial court correctly refused to give Lattin’s pinpoint
instruction as drafted, because it was partly incorrect given the evidence that
the shotgun could be loaded in seconds. This begs the question whether the
court had a duty to modify the instruction and “tailor” it to the particular
facts of the case. (People v. Falsetta (1999) 21 Cal.4th 903, 924 (Falsetta).)
We observe the trial court may have erred when it failed to instruct the jury
before deliberations with a corrected version of the pinpoint instruction that
was needed for them to assess the element of present ability. However, any
error was harmless because the court gave a revised, correct instruction in
response to the jury’s questions. Our review here is de novo. (People v.
Rivera (2019) 7 Cal.5th 306, 326.)
A. Additional Background
The trial court instructed the jury with the elements of assault with a
firearm using CALCRIM No. 875: “To prove that the defendant is guilty of
this crime, the People must prove that: [¶] 1. The defendant did an act with
a firearm that by its nature would directly and probably result in the
application of force to a person; [¶] 2. The defendant did that act willfully;
[¶] 3. When the defendant acted, he was aware of facts that would lead a
reasonable person to realize that his act by its nature would directly and
probably result in the application of force to someone; [¶] 4. When the
defendant acted, he had the present ability to apply force with a firearm to a
person; [¶] AND [¶] 5. The defendant did not act in self-defense.” (Italics
added.) There were no other instructions given on the element of present
ability.
Based on his understanding of the law, Lattin asked for a pinpoint
instruction on the present ability element of assault that stated:

15
“[P]ointing an unloaded gun at another person with no effort or
threat to use it as a baton is not an assault with a deadly
weapon.”

“[A]n assault is not committed by a person here by pointing an
unloaded gun in a threatening manner [at] another person.”

“The present ability element of assault is satisfied . . . when a
defendant has obtained the means and . . . ability to inflict injury
on the present occasion . . . . An assault may be committed even
if the defendant is several steps away from actually inflicting
injury, or if the victim is in a protected position that injury would
not be immediate in the strictest sense of that term.”7

The trial court declined to give Lattin’s pinpoint instruction.
During closing argument, the prosecutor argued repeatedly that
assault with a firearm could be committed with an unloaded gun if a
defendant “has the means to load it and present ability to inflict harm.”
Lattin lodged two formal objections to the prosecutor’s statement of the law.
After arguments concluded, Lattin objected again and asked for additional
instruction to the jury and for surrebuttal. Lattin’s trial counsel argued:
“[T]he law [has been] for a long time and it remains so today, that pointing an
unloaded gun at someone does not constitute assault with a firearm. . . . The
standard[ ] for present ability is not whether or not a bullet is accessible.
There’s not been a single case [in] the Supreme Court of California that
present ability exists if [the] gun is unloaded.”
The trial court overruled Lattin’s objections. In the court’s view,
“[n]umerous California cases establish an assault may be committed even if
the defendant is several steps away from fully inflicting injury.” And

7 We have removed some explanatory interjections from defense
counsel’s oral request for this instruction.

16
therefore, pointing an unloaded shotgun at someone does not constitute an
assault with a firearm “[a]s long as they have no means to load it.”
During deliberations, the jury sent a note to the trial court asking: “To
determine if the greater verdict, does there have to be ammo readily available
to the defendant? Or gun have to be loaded?”
The trial court responded to the jury’s question with a pinpoint
instruction approved by both the prosecutor and Lattin’s counsel. The
instruction was similar to the pinpoint instruction previously requested by
Lattin but with an important distinction. It stated an assault is not
committed by merely pointing an unloaded gun in a threatening manner:
“An assault is not committed by a person merely pointing an
unloaded gun in a threatening matter [sic] at another person.
The present ability aspect of the crime of assault with a firearm
is satisfied when a defendant has attained the means and
location to strike immediately. In this context immediately does
not mean instantaneously. It simply means that the defendant
must have the ability to inflict injury on the present occasion.
Numerous California cases establish that an assault may be
committed even if the defendant is several steps away from
actually inflicting injury, or if the victim is in a protected position
so that the injury would not be immediate in the strictest sense of
that term.”

After receiving the trial court’s response, the jury sent a second note to
state they were still confused and seeking further clarification: “We are
confused by last answer: shotgun shells are required for assault with a
firearm? Yes or no[?]” With both counsels’ agreement, the court told the jury
to “[r]efer to instruction 875 and the response the court provided to the first

question.”8

8 In a third note, the jury requested the “[d]efinition of assault,” and
asked, “is psychological/mental force equal to force of hitting or making

17
B. Governing Law
Section 240 defines assault to be “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.” (§ 240.)
“[T]he present ability element of assault . . . is satisfied when ‘a defendant
has attained the means and location to strike immediately.’ ” (People v.
Chance (2008) 44 Cal.4th 1164, 1167–1168 (Chance).) As explained by our
high court, “[i]n this context . . . ‘immediately’ does not mean
‘instantaneously.’ It simply means that the defendant must have the ability
to inflict injury on the present occasion.” (Id. at p. 1168.)
The present ability element of assault is assessed on a continuum.
“Time is a continuum of which ‘present’ is a part. ‘Present’ can denote
‘immediate’ or a point near ‘immediate.’ ” (People v. Ranson (1974) 40
Cal.App.3d 317, 321 (Ranson).) “Numerous California cases establish that an
assault may be committed even if the defendant is several steps away from
actually inflicting injury . . . so that injury would not be ‘immediate,’ in the
strictest sense of that term.” (Chance, supra, 44 Cal.4th at p. 1168.)
In People v. Simpson (1933) 134 Cal.App. 646, 650 (Simpson), for
example, the court concluded the defendant had the present ability to inflict
injury with a rifle that was loaded but still one step away from being ready to
fire. The rifle had 10 loaded cartridges in the magazine, but an empty firing
chamber. As a consequence, the defendant had to “first transfer[ ] a cartridge
to the firing chamber by the operation of a lever” in order to fire it. (Id. at
pp. 647–648.) The court concluded it would be unreasonable to find the
defendant did not have the present ability to injure, just as it would be
unreasonable to find “that an assailant ha[d] not the present ability to

contact?” With both counsels’ approval, the trial court referred the jury to
CALCRIM Nos. 252 [union of act and intent], 875, and 915 [simple assault].

18
commit a violent injury upon the person of another by means of a sword or
dagger because it [was] necessary to first withdraw the weapon from a
scabbard which hangs by his side.” (Id. at pp. 651–652.)
In Chance, our high court concluded the defendant had the “present
ability” to inflict injury under circumstances slightly more removed on the
continuum. In addition to having rounds in the magazine but none in the
firing chamber, the defendant pointed the gun in the wrong direction, away
from his target, a police officer who was chasing after him. As the Court
explained, “when a defendant equips and positions himself to carry out a
battery, he has the ‘present ability’ required by section 240 if he is capable of
inflicting injury on the given occasion, even if some steps remain to be taken,
and even if the victim or the surrounding circumstances thwart the infliction
of injury.” (Chance, supra, 44 Cal.4th at p. 1172.)
One step further removed from immediate, in Ranson, cited with
approval in Chance, the defendant aimed a rifle at a police car. (Ranson,
supra, 40 Cal.App.3d at p. 319; see Chance, supra, 44 Cal.4th at
p. 1172.) After the police shot and disarmed the defendant, they discovered
there was no round in the chamber of his rifle because a cartridge in the
magazine had jammed. (Ranson, at pp. 319–320.) The Ranson court
nonetheless held the “present ability” element for an assault was satisfied
under the “unique fact situation” presented there: “The rifle held by
[defendant] was definitely loaded and operable; however, the top cartridge
that was to be fired was at an angle that caused the gun to jam. There was
evidence from which the trial court could infer that appellant knew how to
take off and rapidly reinsert the clip.” (Id. at p. 321.) Thus, even though the
defendant in Ranson would have had to remove the clip from the gun,
dislodge a jammed cartridge, reinsert the clip, chamber a round, point the

19
weapon and pull the trigger, the Ranson court concluded “present ability”
existed. (Ibid. [“We are slightly more removed from ‘immediate’ in the
instant case; however, we hold that the conduct of appellant is near enough
to constitute ‘present’ ability for the purpose of an assault”].)
Extending the logic and holdings of Simpson, Chance, and Ranson, we
disagree with Lattin and conclude there is no brightline rule in California
that a gun must be loaded to commit an assault unless it is used as a club or
bludgeon. It is not the case that assault by shooting can never be committed
with an unloaded gun as a matter of law. If ammunition is readily available,
it is a question for the jury whether a defendant with an unloaded gun
possesses the means to load it and shoot immediately, or whether he is too
many steps away from actually inflicting injury to have the present ability to
commit assault.
Here, for example, the jury was entitled to credit Detective Page, the
prosecution’s gun expert, and conclude that even if Lattin’s shotgun was
unloaded when he aimed it at the various witnesses at various points in time,
if he had cartridges with him, he would have had the ability to load the
shotgun and rack it in “a second or two.” Based on this expert testimony, it
would appear Lattin could have loaded his weapon and prepared to fire it in
far less time than the defendant in Ranson. (See Ranson, supra, 40
Cal.App.3d at p. 321.)
Lattin contends a long line of California cases hold otherwise. We do
not agree. It is true there are many cases, including from the California
Supreme Court, which state without qualification that “[t]he threat to shoot
with an unloaded gun is not an assault, since the defendant lacks the present
ability to commit violent injury.” (See e.g., People v. Fain (1983) 34 Cal.3d
350, 357, fn. 6 (Fain); People v. Wolcott (1983) 34 Cal.3d 92, 99; People v.

20
Sylva (1904) 143 Cal. 62, 65 (Sylva); People v. Miceli (2002) 104 Cal.App.4th
256, 269; People v. Lochtefeld (2000) 77 Cal.App.4th 533, 542, fn. 10
(Lochtefeld); People v. Bekele (1995) 33 Cal.App.4th 1457, 1463, disapproved
on another point in People v. Rodriguez (1999) 20 Cal.4th 1, 13–14
(Rodriguez); People v. Valdez (1985) 175 Cal.App.3d 103, 111; People v. Orr
(1974) 43 Cal.App.3d 666, 672; People v. Mosqueda (1970) 5 Cal.App.3d 540,
544; People v. Mearse (1949) 93 Cal.App.2d 834, 836; People v. Montgomery
(1911) 15 Cal.App. 315.) “ ‘ “It is axiomatic,” ’ ” however, “ ‘ “that language in
a judicial opinion is to be understood in accordance with the facts and issues
before the court. An opinion is not authority for propositions not
considered.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 154–155.) We have
not found a single case that considered facts like those presented
here—where there was evidence a firearm was unloaded but ammunition
was immediately available to the defendant for loading within seconds—and
then specifically considered whether such facts could support a finding of
present ability.
This includes the venerable opinion, People v. Lee Kong (1892) 95 Cal.
666 (Lee Kong). Lee Kong is often cited (without analysis) as the original
source for Lattin’s suggested brightline rule. (E.g., Fain, supra, 34 Cal.3d at
p. 357, fn. 6.) But we do not read Lee Kong to have such a broad holding.
The defendant in Lee Kong was believed by police to be running an
illegal “gambling or lottery game.” (Lee Kong, supra, 95 Cal. at p. 667.) A
policeman “secretly bored a hole in the roof of [the defendant’s] building” to
spy on him. The defendant learned he was being observed, and he shot a
loaded pistol at the spot where he thought the policeman was watching. The
defendant’s “aim was good, for the bullet passed through the roof at the point
intended; but very fortunately for the officer of the law, at the moment of

21
attack he was upon the roof at a different spot.” (Ibid.) At that different
spot, the officer was able to observe the defendant try and shoot him. (Id. at
pp. 667–668.)
The Lee Kong court considered whether the elements of assault could
be satisfied by this fact pattern. (Lee Kong, supra, 95 Cal. at p. 668.) As a
first step in its analysis, the Court considered which line of authority to
follow in an entrenched split on the definition of assault. (Id. at pp. 668–
669.) “In the early law, the word ‘assault’ represented an entirely different
concept in criminal law than it did in the law of torts. As an offense it was an
attempt to commit a battery; as a basis for a civil action for damages it was
an intentional act wrongfully placing another in apprehension of receiving an
immediate battery.” (Perkins & Boyce, Criminal Law (3d ed. 1982) Assault,
ch. 2, § 2(B)(1), p. 159.) The first type of assault usually requires “that the
assaulter have a ‘present ability’ to commit a battery.” (2 LaFave,
Substantive Criminal Law (3d ed. 2018), § 16.3(a), p. 771 (LaFave).) The
second type of assault does not. (Id., § 16.3(b), p. 772.)
Most states over time expanded the definition of criminal assault to
include “the intent-to-frighten type of assault.” (LaFave, supra, § 16.3,
p. 769.) The Lee Kong court held that California is not one of these states.
(Lee Kong, supra, 95 Cal. at pp. 668–669.) In California, section 240
specifically defines assault to be “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another.”
Therefore, “[i]n order to constitute an assault there must be something more
than a mere menace. There must be violence begun to be executed.” (People
v. Yslas (1865) 27 Cal. 630, 633.) In coming to this conclusion, the Lee Kong
court considered case law in other jurisdictions that addressed whether an
assault can be committed with an unloaded gun. Important here, the Court

22
considered these cases in the abstract. The defendant in Lee Kong
successfully shot a loaded gun through his roof. (Lee Kong, supra, 95 Cal. at
p. 667.) The case did not involve an unloaded gun.
The Lee Kong court explained its decision to reject the “principally
English” line of authority that defines criminal assault to include “the intent-
to-frighten type of assault” by comparing the outcomes in cases involving
unloaded guns in both English and United States common law jurisdictions.
(Lee Kong, supra, 95 Cal. at p. 669; LaFave, supra, § 16.3, p. 769.) The Court
stated it could not endorse those authorities that hold “an assault may be
committed by a person pointing in a threatening manner an unloaded gun at
another” if the “party at whom it was menacingly pointed was thereby placed
in great fear.” (Lee Kong, at p. 669, italics added.) The Court reasoned,
“[u]nder our statute it cannot be said that a person with an unloaded gun
would have the present ability to inflict an injury upon another many yards
distant, however apparent and unlawful his attempt to do so might be.”
(Ibid., italics added.)
Read in context, we do not view these statements as a holding that
assault can never be committed with an unloaded gun if a person is too far
away to use it as a club or bludgeon. That question was not before the Lee
Kong court. The question before the Court was which line of authority to
follow as a general proposition, the line of authority that required present
ability to inflict injury, or the line of authority that defined assault to include
an intentional act wrongfully placing another in apprehension of an
immediate battery. (Lee Kong, supra, 95 Cal. at pp. 668–669.) The
statements therefore constitute a holding only to the extent the Court decided
the definition of assault in California follows the first line of authority and
not the second, nothing more.

23
Having determined a criminal assault in California does not include
the traditional tort law concept of the offense, the Lee Kong court turned to
the more specific question raised on appeal by the defendant. The defendant
contended the evidence was insufficient to support the verdict, because his
“mistake as to the policeman’s exact location upon the roof” meant he did not
have the present ability to inflict injury. (Lee Kong, supra, 95 Cal. at p. 670.)
Foreshadowing Chance, the Court decided the policeman “was sufficiently
near to be killed from a bullet from the pistol,” and the fact that the
defendant “was mistaken in judgment as to the exact spot where his intended
victim was located [was] immaterial.” (Ibid.) We see no conflict with this
holding in Lee Kong and our holding here.
Also important, Lee Kong is a case from another era, one where Lattin’s
fast-loading, pump-action shotgun would be science fiction. The out-of-state
cases that were discussed by the Court illustrate this point. All involved
firearms that had to be separately loaded with gunpowder and ammunition.
In State v. Napper (1870) 6 Nev. 113, 115–116, the element of present ability
depended on whether the defendant’s pistol was unloaded or “loaded with
gunpowder and leaden bullets.” In State v. Swails (1856) 8 Ind. 524, 524–
525, disapproved in Kunkle v. State (1869) 32 Ind. 220, 230, present ability
depended on whether the defendant’s gun was loaded with “powder and a
light cotton wad” or “powder and ball.” And in Kunkle, supra, at pp. 225–227,
present ability depended on whether the defendant’s gun was “lightly loaded”
with “common squirrel shot.” After reviewing these cases, we observe that
what may have been unimaginable in 1892 (when Lee Kong was decided)—
that a gun could be loaded and made ready to fire in one or two seconds—is
no longer the case today.

24
For all these reasons, we understand the line of authority cited by
Lattin to hold that menacing a person with an unloaded gun and the
apparent ability to inflict injury—by itself—is not enough to commit criminal
assault. (Lee Kong, supra, 95 Cal. at p. 669.) Under the right circumstances,
proof that a firearm was unloaded can be a complete defense to charges of
assault. (Sylva, supra, 143 Cal. at p. 65.) But it is not a complete defense in
all circumstances as a matter of law. (See Chance, supra, 44 Cal.4th at
p. 1172; Ranson, supra, 40 Cal.App.3d at p. 321; Simpson, supra,
134 Cal.App. at p. 650.) We thus agree with the trial court that assault with
a firearm can be committed with an unloaded gun by a defendant who has
ammunition available and the means to load it immediately.
C. Lattin Was Not Entitled to the Pinpoint Instruction He Drafted
As noted, Lattin asked the trial court to instruct the jury that assault
with a firearm cannot be committed with an unloaded gun unless it is used as
a club or bludgeon, and to explain that the present ability element of assault
is assessed on a continuum. The trial court correctly refused the instruction
as drafted.
Pinpoint instructions on the defense theory of the case are required
upon request “when the point of the instruction would not be readily
apparent to the jury from the remaining instructions.” (People v. Bolden
(2002) 29 Cal.4th 515, 558–559 (Bolden).) “A pinpoint instruction relates
specific evidence to the elements of the offense, highlighting a defense
theory.” (People v. Grassini (2003) 113 Cal.App.4th 765, 777.) “Specifically, a
criminal defendant ‘is entitled to an instruction that focuses the jury’s
attention on facts relevant to its determination of the existence of reasonable
doubt.’ ” (People v. Canizalez (2011) 197 Cal.App.4th 832, 856–857.)
Pinpoint instructions are required to be given only if they are supported by

25
substantial evidence, and “only when the point of the instruction would not
be readily apparent to the jury from the remaining instructions.” (Bolden,
supra, at pp. 558–559; see generally, People v. Mathews (1994)
25 Cal.App.4th 89, 98–100.)
Here, as noted, the prosecution’s theory of the case was the shotgun
was either loaded, or if not loaded, Lattin had ammunition readily available
and could load it within seconds. Detective Page explained the shotgun could
be loaded in “less than a second,” and loaded and racked in “a second or two.”
Witnesses saw Lattin hand the shotgun to his friends in the black Mazda,
and police found not only the shotgun but also three “compatible” live
cartridges in that car. Accordingly, there was circumstantial evidence that
Lattin had three live cartridges on his person—either in a pocket or
contained in the fabric cartridge holder attached to the shotgun’s folding
stock—and that this gave him the ability to swiftly load and shoot his
modern-day weapon as he pointed it at Michael.
Against this evidence, the defense theory was “there was no evidence
that the [shot]gun was loaded or was ever even near any shotgun shells.” In
support of his defense, Lattin testified he made sure the shotgun was
unloaded and he did not recall having any shells with him. If a jury found
both facts to be true, the element of present ability would have been
unsatisfied. (See Sylva, supra, 143 Cal. at p. 65; Chance, supra, 44 Cal.4th at
pp. 1172, 1176.) It was essential therefore to tell jurors how to assess the
element of present ability in light of conflicting evidence that the shotgun
may or may not have been unloaded and Lattin may or may not have had the
means to quickly load it.

26
The instructions on present ability were deficient. (Bolden, supra,
29 Cal.4th at pp. 558–559.) They told the jury only that Lattin had to have
the “present ability” to apply force with a firearm to a person “when [he]
acted” in order to commit an assault. They did not explain that pointing an
unloaded gun at a person is not an assault unless the present ability element
is satisfied in another manner. Nor did they address the legal principle that
“when a defendant equips and positions himself to carry out a battery, he has
the ‘present ability’ required [to commit an assault] if he is capable of
inflicting injury on the given occasion, even if some steps remain to be taken,
and even if the victim or the surrounding circumstances thwart the infliction
of injury.” (Chance, supra, 44 Cal.4th at p. 1172.) The jury needed this
additional information about the present ability element to fairly assess
Lattin’s defense. Telling jurors that Lattin had to have the “present ability”
to apply force “when [he] acted,” and nothing more, left them without a link
between the evidence at trial and essential legal principles they needed to
resolve this question. Lattin thus established he was entitled to a pinpoint
instruction on these points.
Under the circumstances, however, it would have been inaccurate to
tell the jury there could be no assault as a matter of law if Lattin’s gun were
unloaded, which is what the instruction he drafted conveyed. As we have
explained, an unloaded gun can be used to commit assault with a firearm by
a defendant who has the means and ammunition available to load it
immediately. And here, there was ample evidence in the record to support a
conviction on this theory. Lattin’s requested instruction, consequently, did
not accurately pin the evidence adduced at trial to the present ability element
of assault. The trial court correctly refrained from using it to instruct the
jury.

27
In coming to this conclusion, we considered Sylva, supra, 143 Cal. 62,
not cited by either party. In Sylva, the defendant pointed a gun at the
complaining witness from over 15 feet away and said, “ ‘I will shoot you if you
don’t get out of the house.’ ” (Id. at p. 63.) The defendant did not threaten or
attempt to use the gun as a weapon in any other manner, and ultimately “it
was not in fact fired.” (Ibid.) These basic facts were uncontested. (Ibid.) But
there was a “serious dispute” at trial as to “whether or not the gun was
loaded.” (Ibid.)
The defendant in Sylva asked the trial court to give a pinpoint
instruction to the jury on the element of present ability using language
analytically indistinguishable from the instruction requested by Lattin:
“ ‘[1.] A person with an unloaded gun does not have the present ability to
inflict an injury upon another many yards distant, however apparent and
unlawful his attempt to do so might be,’ ” and “ ‘[2.] An assault cannot be
committed by a person pointing in a threatening manner an unloaded gun at
another, and this, too, regardless of the fact whether the party holding the
gun thought it was loaded, or whether the party at whom it was menacingly
pointed was thereby placed in great fear.’ ” (Sylva, supra, 143 Cal. at p. 64.)
The trial court denied the defendant’s request. (Ibid.)
Following the rules for assessing the need for pinpoint instructions, the
Sylva court reviewed the other instructions that had been given to the jury.
(Sylva, supra, 143 Cal. at p. 65.) The Court determined the other
instructions “correctly defined the respective crimes of assault and assault
with a deadly weapon.” (Id. at p. 64.) However, “[i]n view of the state of the
evidence,” the Court determined the instructions were “ambiguous” based on
the fact pattern presented there, and “so conflicting that they might have

28
misled the jury” on the question of whether an assault could be committed
with an unloaded gun. (Id. at pp. 64–65, italics added.)
The Sylva court held that “[u]nder these circumstances it must be
conceded that if the gun was not loaded there was no assault, either with a
deadly weapon or otherwise. Pointing an unloaded gun at another,
accompanied by a threat to discharge it without any attempt to use it, except
by shooting, does not constitute an assault. There is in such a case no
present ability to commit a violent injury on the person threatened, in the
manner in which the injury is attempted to be committed.” (Sylva, supra,
143 Cal. at p. 64, italics added.) The Court explained that, “[i]n view of [the
other] ambiguous instructions, the [trial] court should have given the
instructions asked by the defendant. . . . The only serious dispute being
whether or not the gun was loaded, the defendant was entitled to an
instruction upon that precise point.” (Id. at p. 65, italics added.)
Despite obvious similarities, we conclude Sylva does not control the
resolution of the distinct issue presented here. It is true the principal
pinpoint instruction requested by Lattin closely tracked the instruction
requested in Sylva. It is also true, exactly as was the case in Sylva, there
was a serious dispute as to whether the gun was loaded in the instant case.
But the circumstances in dispute here were different from those in Sylva in
one crucial respect. Unlike Sylva, there was evidence here to support more
than one prosecution theory on the question of present ability. Like Sylva,
there was evidence the gun was loaded. However, unlike Sylva, if the jury
did not believe the shotgun was loaded, there was evidence Lattin had
ammunition with him and could load the shotgun in seconds. We therefore
find the holding in Sylva to be inapposite.

29
To be clear, we do not disagree with the holding in Sylva that the
instruction requested there was necessary and that it accurately pinned the
evidence to the law based on the specific circumstances and the instructions
that were given to the jury in that case. (See Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) We are distinguishing Sylva.
Ours is not a case, like Sylva, where there was no evidence of ammunition
readily available to the defendant at the location of the alleged assault.
Finally, we observe that, although the trial court correctly refused
Lattin’s pinpoint instruction as drafted, it may have erred when it rejected
the requested instruction outright instead of correcting it and tailoring it to
the particular facts of the case. (People v. Hall (1980) 28 Cal.3d 143, 158–159
[“Although the trial court did not err in refusing to give the [pinpoint]
instruction as written, it should not have refused to tailor the instruction to
the facts of this case.”], overruled on another point in People v. Newman
(1999) 21 Cal.4th 413, 415; but see People v. Gonzalez (1992) 8 Cal.App.4th
1658, 1663–1664 [no duty to correct seriously flawed instruction].) Although
Lattin’s pinpoint instruction was inapt as drafted, this does not necessarily
mean he was not entitled to have the jury provided with additional
instruction. (See Falsetta, supra, 21 Cal.4th at pp. 923–924 [concluding that
it was error to fail to instruct the jury with the correct portion of an otherwise
faulty limiting instruction]; People v. Fudge (1994) 7 Cal.4th 1075, 1110
[concluding that to the extent defendant’s proposed pinpoint instruction was
argumentative, “the trial court should have tailored the instruction to
conform to the requirements [of the law], rather than deny the instruction
outright”]; cf. People v. Bolden (1990) 217 Cal.App.3d 1591, 1597 [concluding
that although defendant’s proposed instruction on the defense theory of the

30
case incorrectly stated the law, “this alone does not support the trial court’s
refusal to properly instruct”].)
We need not decide this question though. Even if the trial court was
required to correct and tailor Lattin’s proposed instruction to the particular
facts of the case prior to jury deliberations, we would conclude any error was
harmless, under any standard. (Chapman v. California (1967) 386 U.S. 18;
People v. Watson (1956) 46 Cal.2d 818, 836.) This is because the trial court
correctly instructed the jury with a revised pinpoint instruction in response
to its questions during deliberations about the present ability element.
D. Harmless Error
The trial court’s revised instruction tracked the instruction that Lattin
had originally proposed, but with a key modification. Instead of telling the
jury, as Lattin had requested, that “an assault is not committed by a person
here by pointing an unloaded gun in a threatening manner [at] another
person,” the court used language from two recent California Supreme Court
cases and instructed the jury that “[a]n assault is not committed by a person
merely pointing an unloaded gun in a threatening matter [sic] at another
person.” (Italics added.) (See Rodriguez, supra, 20 Cal.4th at p. 11, fn. 3;
People v. Penunuri (2018) 5 Cal.5th 126, 147 (Penunuri).) This small but key
revision properly told jurors that pointing an unloaded gun at a person in a
threatening manner is not—by itself—an assault, and that something more is
required.
Using language direct from our high court (see Chance, supra,
44 Cal.4th at p. 1168), the rest of the revised instruction told the jury the
“more” that was required:
“The present ability aspect of the crime of assault with a firearm
is satisfied when a defendant has attained the means and
location to strike immediately. In this context immediately does

31
not mean instantaneously. It simply means that the defendant
must have the ability to inflict injury on the present occasion.
Numerous California cases establish that an assault may be
committed even if the defendant is several steps away from
actually inflicting injury, or if the victim is in a protected position
so that the injury would not be immediate in the strictest sense of
that term.”

With this additional portion of the revised instruction, the jury had the
information it needed to decide whether Lattin had the present ability to
commit an assault even if the gun was not loaded. The instruction correctly
conveyed they could convict only if Lattin had “immediate” access to the
ammunition and only if they believed the procedure required to load the gun
placed him no more than “several steps away from actually inflicting injury.”
So the jury was correctly instructed before it completed its deliberations with
the legal principles it needed to focus its attention on the defense theory of
the case. Any error by the trial court was therefore harmless.
II.
No Reversal for Insufficient Evidence
After the close of evidence, Lattin moved to dismiss the case pursuant
to section 1118.1. He contends the trial court erred when it denied his
motion with respect to the present ability element of the assault with a
firearm conviction. He claims the motion should have been granted “because
the shotgun was unloaded and it was not used as a club.” (Capitalization
omitted.) We disagree. The record contained substantial evidence Lattin had
the present ability to apply force with a firearm when he aimed the shotgun
at Michael after returning to the gas station and fighting with him. There
was substantial evidence the shotgun was loaded at that point in time. There
was also substantial evidence that, even if not loaded, Lattin had ready
access to ammunition and could quickly load it.

32
“An appellate court reviews the denial of a section 1118.1 motion under
the standard employed in reviewing the sufficiency of the evidence to support
a conviction.” (People v. Houston (2012) 54 Cal.4th 1186, 1215.) Under that
standard, we determine “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” (Jackson v.
Virginia (1979) 443 U.S. 307, 319 (Jackson); People v. Lagunas (1994) 8
Cal.4th 1030, 1038, fn. 6.) Our task is “to determine whether [the record]
contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51
Cal.4th 47, 60 (Albillar).) 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.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
Substantial evidence supported the prosecution’s primary theory that
the shotgun was loaded when Lattin returned to the gas station and pointed
it at Michael. “California courts have often held that a defendant’s
statements and behavior while making an armed threat against a victim may
warrant a jury’s finding the weapon was loaded.” (Rodriguez, supra,
20 Cal.4th at p. 12.) All four victims testified Lattin threatened to kill them
while he was pointing the shotgun at them during the first encounter at the
gas station. A jury could reasonably have interpreted Lattin’s threats to kill
the victims to be an admission the weapon was loaded. They could have
resolved conflicting evidence in favor of concluding the shotgun remained
loaded throughout the second encounter until Lattin or his friends emptied it
before placing it in the trunk of the black Mazda. (See Lochtefeld, supra,

33
77 Cal.App.4th at pp. 536, 541–542 [the defendant’s “own words and actions,
in both verbally threatening and in displaying and aiming the gun at others”
supported the jury’s determination the gun was loaded and “sufficiently
operable”].)
There was also circumstantial evidence that Lattin’s friends and wife
spoke to Lattin while he was away from the gas station and learned the
shotgun was loaded and he intended to use it. They were so alarmed they
used two vehicles to follow him back to the gas station. Then, when they saw
him pointing the shotgun at Michael, they implored him not to fire,
specifically telling him “not to shoot and don’t do it.” The fact that a firearm
was loaded may be inferred from circumstantial evidence, and “we will
uphold an assault conviction if the inference is reasonable.” (Penunuri,
supra, 5 Cal.5th at p. 147.)
To be sure, there was countervailing evidence the shotgun was not
loaded. It was unloaded when it was found by deputies. Jz.R. and An.D.
testified that Lattin racked the weapon more than once during the second
incident and saw no shells come out. Michael’s testimony he saw an orange
shell expelled from the shotgun onto Lattin’s car floor was ambiguous as to
whether Lattin was unloading the shotgun or making sure it was loaded.
Relying on this favorable evidence, Lattin argues reversal is required
because the evidence the shotgun was loaded was “weak.” He is mistaken
about the nature of our review for substantial evidence. As noted, we review
the evidence “in the light most favorable to the prosecution,” not the light
most favorable to the appellant. (Jackson, supra, 443 U.S. at p. 319.) We
presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence. (Albillar, supra, 51 Cal.4th at p. 60.)
We do not reweigh the evidence or reassess the credibility of witnesses.

34
(Ibid.) Therefore, “[i]f the circumstances reasonably justify the trier of fact’s
findings,” as was the case here, “reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a
contrary finding.” (Ibid.) Applying the correct standard, the evidence the
shotgun was loaded was sufficient to support the assault with a firearm
conviction.
Regardless, substantial evidence supported the prosecution’s alternate
theory that Lattin had the means to quickly load the shotgun. As we
concluded earlier, there is no brightline rule in California that a gun must be
loaded for a defendant to have the present ability to commit assault with a
firearm by pointing it at someone. The jury could have found beyond a
reasonable doubt that Lattin had ammunition readily available and was
capable of loading and racking the shotgun “immediately” in the sense that
he had “the ability to inflict injury on the present occasion,” even if he was
“several steps away from actually inflicting injury.” (Chance, supra,
44 Cal.4th at pp. 1167–1168.)
Detective Page testified that a person “competent with th[e] weapon
system” could load and rack the shotgun in “a second or two.” The evidence
presented at trial showed Lattin was familiar with his shotgun; he repeatedly
racked and pumped it during the encounters. There were no shells found
anywhere at the scene except in the cupholder of the black Mazda, supporting
the reasonable inference that Lattin had the shells in his pocket or the fabric
cartridge holder when he pointed the shotgun at Michael and that he gave
them to his friends when he gave them the shotgun before the deputies
arrived. This evidence was more than sufficient to support a finding beyond
a reasonable doubt that Lattin had the present ability to commit an assault
with a firearm.

35
III.
No Error Admitting Prior Testimony by Unavailable Witnesses
Lattin contends the trial court erred when it ruled that Joshua and
Trayshawn were unavailable witnesses within the meaning of Evidence Code
section 240 and allowed their prior trial testimony to be read into the record.
The two witnesses testified at the first trial, but the People were unable to
locate them and subpoena them to testify at the second trial. Our review of
the trial court’s ruling that the witnesses were unavailable is de novo, but
“we defer to the trial court’s determination of historical facts supported by
substantial evidence.” (People v. Wilson (2021) 11 Cal.5th 259, 291 (Wilson
I).) Lattin’s contention has no merit.
A criminal defendant has the right to confront the witnesses against
him under both our state and federal constitutions. (U.S. Const., 6th
Amend.; Cal. Const., art. 1, § 15; People v. Wilson (2005) 36 Cal.4th 309, 340
(Wilson II).) “This right, however, is not absolute.” (Wilson II, supra, at
p. 340.) “If a witness is unavailable but ha[s] previously testified against the
defendant and was subject to cross-examination at that time, that prior
testimony may be admitted.” (Wilson I, supra, 11 Cal.5th at pp. 289–290.)
Both conditions must be met, however, and there are no other exceptions to a
defendant’s “right . . . to be confronted with the witnesses against him.” (U.S.
Const., 6th Amend.; see Crawford v. Washington (2004) 541 U.S. 36, 59.)
Relevant here, a witness who is absent from a trial is “ ‘unavailable’ ”
in the constitutional sense only if the prosecution has made a “good-faith
effort” to obtain the witness’s presence at the trial. (Barber v. Page (1968)
390 U.S. 719, 724–725.) To establish good faith, “ ‘[t]he lengths to which the
prosecution must go to produce a witness . . . is a question of reasonableness.’
[Citation.] The ultimate question is whether the witness is unavailable

36
despite good-faith efforts undertaken prior to trial to locate and present that
witness.” (Ohio v. Roberts (1980) 448 U.S. 56, 74, disapproved on another
point in Crawford v. Washington, supra, 541 U.S. at pp. 60–68.)
The federal requirements of good faith and reasonableness are
coextensive with California state law definitions. (People v. Herrera (2010)
49 Cal.4th 613, 621–622.) In particular, Evidence Code section 240,
subdivision (a)(5), provides a declarant is “ ‘unavailable as a witness’ ” if the
declarant is “[a]bsent from the hearing and the proponent of his or her
statement has exercised reasonable diligence but has been unable to procure
his or her attendance by the court’s process.” Relevant considerations for
determining whether reasonable diligence has been exercised are “the
timeliness of the search, the importance of the proffered testimony, and
whether leads of the witness’s possible location were competently explored.”
(Wilson II, supra, 36 Cal.4th at p. 341.)
The trial court here conducted an evidentiary hearing to determine
whether Joshua and Trayshawn were unavailable. At the conclusion of the
hearing, the trial court found both witnesses were unavailable and allowed
their prior testimony to be read into the record. Based on our independent
review, the court’s ruling was resoundingly supported by the record.
Detective George Lozano, a senior investigator with the
San Bernardino County Sheriff’s Department, was asked to locate the two
witnesses 11 days before trial commenced on February 27, 2023. Lozano
personally spent 60 hours looking for the missing witnesses.
Lozano checked multiple law enforcement databases that compile
address, employment, and phone number information for people living in
Southern California and Las Vegas. He checked the California Department
of Motor Vehicles website. He checked the county jail databases to see

37
whether they were in custody in Riverside County, San Bernardino County,
or Orange County. He checked the witnesses’ “employment status through
the California . . . equal employment division.” He “checked both of their
previous work location[s],” but learned “they were let go back in August.” He
ran the license plates of vehicles registered to both witnesses to see whether
“those vehicles hit cameras in the area of this current address or any other
associated address which [was] known,” but “[t]he last hit for each vehicle for
each subject [was] months ago.” He called phone numbers of friends and
family members associated with the witnesses and left messages. He “did a
social media search to see if there [was] anything . . . to show a current
location of each subject.” He checked the state’s welfare database to see if
either witness was receiving benefits at a current address. He checked the
local school district to see if either witness had children in school.
Lozano went in person to each last known address he found for each
missing witness and “knocked on the doors, left copies of subpoenas, business
cards, [and] spoke to neighbors.” He went to the current listed addresses for
the witnesses’ spouses and other family members and spoke to them or to the
new tenants at those addresses unless “they would not talk to [him] at all
because [he] was in law enforcement.” With help from five other
investigators from the Bureau of Investigation of the San Bernardino County
District Attorney’s office, he “conducted surveillance on different dates and
different times—sometimes in the morning, sometimes in the afternoon,
sometimes in the evening—to see if [he] could catch them at home or going.”
On cross-examination, Lozano made one minor admission: He did not check
“the voter rolls.”
Lozano initially did not contact the victims, Jz.R., Michael, An.D., and
Anthony, because the Sheriff Department’s policy is to not “ask other victims

38
or witnesses where witnesses are at because [that] could lead to dissuading,
and . . . a whole other batch of problems that we don’t want to deal with.”
But on the fifth day of trial, the trial court ordered him to contact the victims
and he did. Lozano learned that none of the victims had spoken with either
missing witness “since the time of the incident.”
The instant case is nothing like the cases relied upon by Lattin. In
People v. Sanders (1995) 11 Cal.4th 475, 524, “the defense made no effort
what[so]ever” to subpoena a missing witness “until well into the trial” and
“[e]ven then, belated efforts to locate her were minimal, consisting of a single
phone call to her former work number and several visits to her former
address.” In People v. Avila (2005) 131 Cal.App.4th 163, 170, the
prosecution’s investigator waited “until the ‘11th hour’ ” on “the morning trial
started” to contact a critical witness. In People v. Pitts (1990) 223 Cal.App.3d
1547, 1557, the investigator failed to start looking for a witness until “just
before trial,” failed to search for the witness using all his known aliases, and
failed to contact his former probation officers to see if they knew his
whereabouts.
By contrast, this case is on all fours with People v. Fuiava (2012) 53
Cal.4th 622. There, our high court found a remarkably similar search to be
reasonable. The search included database research, interviews of neighbors
and family members, and in-person visits to investigate various leads. It also
commenced approximately two weeks before trial, just like the case here. (Id.
at pp. 675–677.)
Lattin argues a higher level of diligence was warranted because Joshua
and Trayshawn were important witnesses and the prosecution knew they
were reluctant to testify. We agree with the People that the testimony of
these two witnesses was not critical to the prosecution’s case. Trayshawn did

39
not remember whether Lattin pointed the shotgun at anyone other than
himself. Joshua “didn’t physically see the gun [him]self” and only heard
people yelling about it. Neither witness was substantially less biased than
the prosecution’s four other witnesses, who considered them to be family
friends. Jz.R. and Anthony even referred to Joshua and Trayshawn as their
“uncle[s].” To the extent their testimony was helpful to the prosecution, it
was cumulative to the testimony of the prosecution’s other four percipient
witnesses. To the extent their testimony was important to the defense,
Lattin could have undertaken an extra effort to keep track of them to call
them as his own witnesses.
Finally, while there was evidence Joshua and Trayshawn were
reluctant witnesses, there is nothing in the record to indicate there was a
substantial risk they would flee. The prosecution is not required “to keep
‘periodic tabs’ on every material witness in a criminal case.” (People v. Hovey
(1988) 44 Cal.3d 543, 564.) The prosecution is also not required, “absent
knowledge of a ‘substantial risk that [an] important witness [will] flee,’ to
‘take adequate preventative measures’ to stop the witness from
disappearing.” (Wilson II, supra, 36 Cal.4th at p. 342, quoting Hovey, supra,
at p. 564.)
Under the circumstances, the prosecution exercised reasonable
diligence in its attempts to locate Joshua and Trayshawn. We agree with the
trial court that they were unavailable within the meaning of Evidence Code
section 240 and their prior testimony was properly admitted into evidence.
IV.
No Error Admitting Evidence That “Peckerwood” Is a Gang
Lattin contends the trial court abused its discretion under Evidence
Code section 352 and violated principles of collateral estoppel when it allowed

40
a prosecution expert to tell the jury that “Peckerwood” is the name of a white
supremacist prison gang. There is no merit to this claim.
All four victims testified that Lattin said he was from Peckerwood
when he initially walked out of the market and threatened them. Jz.R.
testified she did not know the meaning of Peckerwood at the time, but
learned later that it is the name of a gang. Michael thought Peckerwood was
a gang from Los Angeles. An.D. testified she understood Peckerwood to be a

white supremacist gang, “[t]he second thing to KKK.”9
In addition to this testimony, Detective Jared Sacapano, a gang officer
with the San Bernardino County Sheriff’s Department, testified as an expert.
According to Sacapano, “the term ‘Peckerwood’ was . . . a derogatory term
used back in the 1800’s” to describe “a poor white person.” In the 1950s, the
term was adopted by white inmates involved in gang activity in the
California prison system. Today, the term “Peckerwood” is now used in both
“custodial and street setting[s],” typically but not always by “a white gang
member.” Significantly, Sacapano testified he was not offering an opinion
that Lattin was a Peckerwood gang member or a white supremacist.
The trial court gave this limiting instruction about the evidence:
“During the trial, testimony from Detective Sacapano was
admitted for a limited purpose, specifically to explain the context
of the term ‘Peckerwood.’ You may consider that evidence only
for that purpose and for no other.”

Evidentiary decisions by the trial court are reviewed for abuse of
discretion. (People v. Parker (2022) 13 Cal.5th 1, 53.) They will be reversed
only if we conclude that the trial court exercised its discretion in an arbitrary,

9 Detective Page testified he was the person who told An.D. that the term
“Peckerwood” refers to a “white supremacist type of group,” and that he did
this when he was interviewing her after deputies arrived at the gas station.

41
capricious or patently absurd manner that resulted in a miscarriage of
justice. (Ibid.) Applying this standard, we find no evidentiary error.
The evidence was relevant. (Evid. Code, § 350.) The prosecution’s
theory for motive was racial animus. No matter whether Lattin was a gang
member or not, there was evidence he claimed he was “from Peckerwood”
during the first confrontation at the gas station. If credited as true, it would
be reasonable to infer from this evidence that Lattin threatened and pointed
the shotgun at the victims because he perceived them to be African American.
Expert testimony that “Peckerwood” is the name of a white supremacist gang
was therefore relevant to Lattin’s motive and intent. (People v. Hernandez
(2004) 33 Cal.4th 1040, 1050–1051 (Hernandez).)
The evidence was not unduly prejudicial. (Evid. Code, § 352.) In
addition to claiming he was from Peckerwood, Lattin engaged in a vile rant
laced with racial slurs culminating in a threat to lynch the victims. The
statement he was from Peckerwood was “no more inflammatory” than the
rest of his racist invective. (People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
Unlike the cases relied upon by Lattin, moreover, Detective Sacapano
made it very clear he offered no opinion as to whether Lattin was a member
of the Peckerwood gang or was a white supremacist, and he provided no
details about Peckerwood’s criminal activities. (Compare, e.g., Hernandez,
supra, 33 Cal.4th at pp. 1045–1046; People v. Albarran (2007) 149
Cal.App.4th 214, 227–228.) The limiting instruction to the jury also
prohibited them from using his testimony to draw that impermissible
inference.
The fact is there was evidence Lattin said he was “from Peckerwood”
while he was walking to his car to take out his shotgun. The evidence was
therefore highly relevant on the question of what he was thinking at that

42
time, in particular, what motivated him to retrieve the shotgun and whether
he planned to commit an assault. We are not persuaded there was a
compelling reason to partially sanitize what he said by refraining from telling
the jury what “Peckerwood” meant, much less an abuse of discretion to allow
the prosecution the opportunity to provide the jury with this information.
The evidence also was not barred by the doctrine of collateral estoppel.
We review questions involving collateral estoppel de novo. (Jenkins v. County
of Riverside (2006) 138 Cal.App.4th 593, 618.) Collateral estoppel “means
simply that when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit.” (Ashe v. Swenson (1970) 397 U.S. 436,
443.) In general, collateral estoppel applies “ ‘if (1) the issue necessarily
decided at the previous trial is identical to the one which is sought to be
relitigated; if (2) the previous trial resulted in a final judgment on the merits;
and if (3) the party against whom collateral estoppel is asserted was a party
or in privity with a party at the prior trial.’ ” (People v. Santamaria (1994) 8
Cal.4th 903, 916 (Santamaria).)
As we understand his argument, Lattin contends the prosecution was
collaterally estopped from retrying the underlying case on the theory that
Lattin was motivated by racial hostility. This is because (1) the jury in the
first trial found the hate crime enhancements that were alleged there to be
“not true,” and (2) one of the elements of a hate crime enhancement, which
the jury necessarily found not true, is that the crime was committed based on

racial animus.10 As a consequence, according to Lattin, the issue of racial

10 Section 422.75, subdivision (a), provides for an additional term of one,
two, or three years in state prison if a person commits a felony that qualifies
as a “hate crime.” “ ‘Hate crime’ ” is defined as a “criminal act committed, in

43
animus as a motivation for the crimes could not be relitigated as between the
parties for a second time, and the evidence that Peckerwood was the name of
a white supremacist gang was therefore not relevant to an issue in dispute
during the second trial; thus it should have been excluded. Lattin’s
argument contains a logical flaw.
The problem with Lattin’s argument is twofold. First, “ ‘issue
preclusion in criminal cases only applies when the relevant issue is
“ultimate” in the subsequent prosecution, i.e., when the issue must be proven
beyond a reasonable doubt.’ ” (Santamaria, supra, 8 Cal.4th at p. 922,
quoting U.S. v. Bailin (7th Cir. 1992) 977 F.2d 270, 280.) Motive is not an
element of assault, and it is therefore not an ultimate fact that must be
proven to obtain a conviction. (§ 240; see CALCRIM No. 915; People v. Smith
(2005) 37 Cal.4th 733, 740 [“with few exceptions, motive itself is not an
element of a criminal offense”].)
Second, Lattin misunderstands the implications of an acquittal in the
context of collateral estoppel. The jury’s “not true” finding on the hate-crime
enhancement meant they had a reasonable doubt that racial animus was his
motivation. It did not mean they found beyond a reasonable doubt that
Lattin was not motivated by racial animus. “ ‘Instead of meaning that
certain acts did not happen, an acquittal means that they were not proved
beyond a reasonable doubt.’ ” (Santamaria, supra, 8 Cal.4th at p. 922, italics
omitted, quoting U.S. v. Seley (9th Cir. 1992) 957 F.2d 717, 723 (Seley).)
These two principles are fatal to Lattin’s argument. “ ‘If an act that
could have been proved to a lesser degree than that required for conviction is
for some reason probative in a subsequent trial, it need not be excluded

whole or in part, because of one or more of the following actual or perceived
characteristics of the victim: . . . Race or ethnicity.” (§ 422.55, subd. (a)(4).)

44
because of the prior acquittal.’ ” (Santamaria, supra, 8 Cal.4th at p. 922,
quoting Seley, supra, 957 F.2d at p. 723.) The United States Supreme Court
has specifically declined “to extend . . . the collateral-estoppel component of
the Double Jeopardy Clause to exclude in all circumstances . . . relevant and
probative evidence that is otherwise admissible under the Rules of Evidence
simply because it relates to alleged criminal conduct for which a defendant
has been acquitted.” (Dowling v. United States (1990) 493 U.S. 342, 348.)
The admission of evidence to explain the meaning of the term “Peckerwood”
was not barred by collateral estoppel. The trial court committed no error by
admitting testimony that “Peckerwood” is the name of a white supremacist
gang.
V.
All Prosecutor Misconduct Claims Are Forfeited and Unfounded
Lattin contends the prosecutor committed misconduct by (1) coaching
prosecution witnesses, (2) misstating the law during closing argument, and
(3) improperly disparaging defense counsel during closing argument. These
claims are forfeited. We discuss them briefly, nevertheless, to point out that
two of them are based on an unfair reading of the appellate record. The third
ignores settled case law.
A. Allegation the Prosecutor Coached Witnesses
During the cross-examination of Anthony, defense counsel told the trial
court that Lattin had “raised a concern” with him the prosecutor “perhaps
inadvertently signaled a response to his witness.” Defense counsel explicitly
stated he did not believe there had been “intentional misconduct by any
means.” Shortly thereafter, defense counsel stated a second time he was not
alleging misconduct: “I want it to be crystal clear. We’re not leveling any
sort of misconduct allegation, whatsoever.”

45
Later, during the cross-examination of An.D., Lattin, acting on his own
accord, improperly spoke up and purported to lodge an objection that he
“s[aw] the [prosecutor] give some kind of cue or hand signals.” The court
excused the jury and admonished Lattin that he was required to raise issues
through the bailiff or his defense counsel. Defense counsel then stated for the
third time he was not alleging prosecutor misconduct.
On this record, there is no basis for Lattin to assert prosecutor
misconduct based on purported witness coaching. “[T]he lack of an objection
at trial bar[s a] defendant from arguing on appeal that the prosecutor’s
conduct require[s] reversal of his convictions.” (People v. Lopez (2008) 42
Cal.4th 960, 965, 971–972 (Lopez).) Defense counsel here specifically
disavowed any claim of prosecutor misconduct—three times—with respect to
potential coaching.
Lattin’s personal objection was improper. It did not preserve the issue
for review. (Magee v. Superior Court (1973) 34 Cal.App.3d 201, 213 (Magee),
disapproved on other grounds, People v. Norris (1985) 40 Cal.3d 51, 56.) His
disagreement with his counsel’s trial tactics is irrelevant on appeal absent a
claim of ineffective assistance of counsel. (See Lopez, supra, 42 Cal.4th at
pp. 965–966.)
Once counsel has become attorney of record, virtually all decisions
concerning trial tactics are controlled by the attorney, not the defendant. “ ‘A
party to an action may appear in his own proper person or by attorney, but he
cannot do both. If he appears by attorney he must be heard through him, and
it is indispensable to the decorum of the Court, and the due and orderly
conduct of a cause that such attorney shall have the management and control
of the action and his acts go unquestioned by [anyone] except the party whom
he represents. So long as he remains attorney of record the Court cannot

46
recognize any other as having the management of the case. If the party for
any cause becomes dissatisfied with his attorney the law points out a remedy.
He may move the Court for leave to change his attorney, . . . Until that has
been done, the client cannot assume control of the case.’ ” (Magee, supra,
34 Cal.App.3d at p. 213, quoting Board of Commissioners v. Younger (1865)
29 Cal. 147, 149.) Thus, “ ‘[i]n both civil and criminal matters, a party’s
attorney has general authority to control the procedural aspects of the
litigation and, indeed, to bind the client in these matters’; in other words,
‘counsel is captain of the ship.’ ” (People v. Masterson (1994) 8 Cal.4th 965,
969.)
Because Lattin’s personal objection during trial did not preserve his
claim of witness coaching for review, the claim was patently forfeited.
Regardless, were we to conclude Lattin’s claim was reviewable, we would
reject it for lack of foundation in the appellate record. The appellate record
does not support Lattin’s overstated claims about the observations made by
the trial court judge and bailiff. Their statements cannot fairly be read to be
observations the prosecutor was engaged in improper signaling to witnesses.
In response to defense counsel’s concern that the prosecutor “perhaps
inadvertently signaled a response to his witness,” the trial judge explicitly
stated: “I haven’t seen that but I will say that . . . I don’t think there’s
anything like that being done. I haven’t noticed the witness has responded
with signaling or along those lines . . . . [¶] So, I’m not finding any sort of
misconduct or negligence related to this.”
The bailiff also explicitly confirmed—after reviewing a videotape of the
prosecutor—that [he] did not “see anything on the video that would lead [him]
to believe that the [p]rosecutor was gesturing to the witness or motioning to
the witness or making faces at the witness or anything . . . along those lines.”

47
In direct conflict with these statements by the trial judge and bailiff,
Lattin misdescribes the record by claiming the judge and bailiff both
observed the prosecutor using “hand gestures” to “indicate to witnesses that
they were giving the correct answer,” “which confirmed the prosecutor was
sending signals to the witnesses about their testimony as he questioned
them.” While the trial judge did observe the prosecutor had an
unintentional, “stylistic mannerism” in response to witness testimony that
gave “somewhat of an appearance [the witness] answered the question
correctly,” he did not describe the mannerisms as “hand gestures” and stated,
“I don’t think that’s your intent.” As noted, the bailiff watched a video of the
prosecutor and confirmed he did not see anything “that would lead [him] to
believe the [p]rosecutor was gesturing to the witness.” He described the
prosecutor’s mannerisms as “fidgeting” by moving his finger and hand to his
mouth.
Lattin’s mischaracterization of these observations of the prosecutor’s
mannerisms as “hand gestures” used to “coach[ ]” witnesses is not well taken.
If Lattin’s claim were not forfeited, we would reject it because the record does
not support it.
B. Allegation the Prosecutor Misstated the Law During Closing Argument
Lattin contends the prosecutor misstated the law during closing
argument by “telling jurors, ‘the elements of simple assault and assault with
a firearm’ ” were “ ‘identical.’ ” This claim is forfeited because defense
counsel failed to object. (People v. Clark (2011) 52 Cal.4th 856, 960 (Clark).)
Were this claim not forfeited, we would reject it—again—on the ground
it is not based on a full and fair recounting of the record. Literally a few
sentences after saying the elements were the same, the prosecutor explained
what he meant by this statement. The prosecutor did this while showing the

48
jury slides with the elements of each offense written out side by side. He
explained the first four elements were identical, and the fifth element was
identical except for requiring the use of a firearm:
“[W]e are going to very quickly look at the elements of
simple assault and for assault with a firearm they’re
identical. Ladies and gentlemen, above is a number of lines
1 through 5, those refer to assault with a firearm. Below
that are the elements 1 through 5 for simple assault. They
are almost identical word for word with the difference of
top 5 lines talking about use of a firearm.”

This was a correct statement of the law. (§§ 240, 245, subd. (a)(2).)
C. Allegation the Prosecutor Improperly Disparaged Defense Counsel
Lattin asserts the prosecutor committed misconduct during closing
argument because he improperly disparaged defense counsel by telling the
jury (1) he was “wearing the white hat,” (2) defense counsel was trying to
“trick” them, and (3) Lattin was “a liar and a coward.” Once again, defense
counsel did not object to any of these statements. Lattin’s challenge to them
is forfeited. (Clark, supra, 52 Cal.4th at p. 960.)
If not forfeited, we would find no error on the ground asserted by
Lattin. The legal authority invoked by Lattin is that “[a] prosecutor commits
misconduct if he or she attacks the integrity of defense counsel, or casts
aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832.) It
is also misconduct for a prosecutor to characterize the defense bar in general
as comprised of liars or to accuse defense counsel in a particular case of lying
to the jury. (People v. Young (2005) 34 Cal.4th 1149, 1193.) Misconduct on
this theory is established if “there is a reasonable likelihood that the jury
would understand the prosecutor’s statements as an assertion that defense
counsel sought to deceive the jury.” (People v. Cummings (1993) 4 Cal.4th

49
1233, 1302 (Cummings), disapproved on another point in People v. Merritt
(2017) 2 Cal.5th 819 (Merritt).)
On the other hand, it is settled that “[a]n argument which does no more
than point out that the defense is attempting to confuse the issues and urges
the jury to focus on what the prosecution believes is the relevant evidence is
not improper.” (Cummings, supra, 4 Cal.4th at p. 1302, fn. 47.) And it is not
misconduct for a prosecutor to call the defendant a liar. “ ‘The prosecutor is
permitted to urge, in colorful terms, that defense witnesses are not entitled to
credence . . . [and] to argue on the basis of inference from the evidence that a
defense is fabricated.’ ” (People v. Boyette (2002) 29 Cal.4th 381, 433
(Boyette).)
Here, the prosecutor commenced rebuttal argument by telling the jury
he had spent a lot of time the night before preparing, and during his
preparation, he “thought about what I’ve been told every day as a prosecutor,
to wear the white hat. In a western cowboy film back in the day when they
used to show the hero, they would say, wear the white hat. [¶] Ladies and
gentlemen, wearing the white hat doesn’t mean I have to allow manipulation,
deception or allow facts that never came into evidence or [that] weren’t true
to come into this courtroom. We’re going to address some of the things you
heard yesterday right now.”
Lattin contends these comments “improperly implied defense counsel
was the villain in the case, and he was the good guy.” We disagree. Read in
context, the prosecutor’s statements were directed at his view of the
shortcomings of defense counsel’s argument. Although we question the

50
choice of cowboy imagery to describe oneself to a jury,11 we do not believe
jurors would understand the prosecutor’s particular metaphor here to be
directed at impugning the integrity of defense counsel.
Lattin’s other bases for error are the use of the word “trick” to
characterize arguments by defense counsel and accusations by the prosecutor
that Lattin lied during his testimony. As noted, it is not misconduct to call
the defendant a liar. (Boyette, supra, 29 Cal.4th at p. 433.)
As for the strong criticism of defense counsel’s argument, prosecutors
have “wide latitude in describing the deficiencies in opposing counsel’s tactics
and factual account.” (People v. Bemore (2000) 22 Cal.4th 809, 846.) Our
high court found no misconduct where the prosecutor said defense counsel
can “ ‘twist’ [and] ‘poke’ [and] try to draw some speculation, try to get you to
buy something.’ ” (People v. Medina (1995) 11 Cal.4th 694, 759.) The Court
found no misconduct where the prosecutor accused counsel of making an
“ ‘irresponsible’ ” third party culpability claim. (People v. Frye (1998) 18
Cal.4th 894, 977–978, disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 420.) And the Court found no misconduct where the
prosecutor argued, “ ‘That’s the tactic that many defense attorneys employ.
Confusion. Throw up smoke. Try and mislead jurors.’ ” (People v. Caro
(2019) 7 Cal.5th 463, 512.)
The language used here does not rise to the level of aggressive rhetoric
used in any of these cases where our high court found no misconduct. We

11 We do not address whether the prosecutor may have engaged in
improper vouching. It is improper for a prosecutor to “invoke[ ] his or her
personal prestige or depth of experience, or the prestige or reputation of the
office, in support of [closing] argument.” (People v. Anderson (2018) 5 Cal.5th
372, 415.) Lattin did not raise this issue here or below. In any event, the
prosecutor’s “brief remark[s] could not have been prejudicial.” (Ibid.)

51
agree with the People “it would have been apparent that the prosecutor was
talking about misleading or confusing defense tactics, not [a] lack of integrity
on the part of defense counsel.” In sum, Lattin’s contentions of prosecutor
misconduct are forfeited and without merit.
VI.
The Trial Court Erred When It Imposed an Upper Term Sentence Based on
Invalid and Unproven Aggravating Factors
Lattin contends the trial court erred when it imposed the upper term
for his assault with a firearm conviction based on aggravating factors that
were not proven to a jury in compliance with section 1170(b). He claims the
error violated the requirement of the Sixth Amendment to the United States
Constitution that “ ‘each element of a crime be proved to the jury beyond a
reasonable doubt.’ ” (People v. Lynch (2024) 16 Cal.5th 730, 742 (Lynch),
quoting Alleyne v. United States (2013) 570 U.S. 99, 104; accord Apprendi,
supra, 530 U.S. at p. 476.) We agree and remand for resentencing. For
guidance on remand, we alert the parties to what appears to be an additional
sentencing error involving the dual use of facts.
A. Sentencing Error
Effective January 1, 2022, the Legislature amended section 1170(b) “to
prohibit imposition of an upper term sentence unless aggravating
circumstances justify that term and the facts underlying any such
circumstance, other than a prior conviction, ‘have been stipulated to by the
defendant or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.’ ” (Lynch, supra, 16 Cal.5th at p. 742,
quoting § 1170(b)(2).) This rule is subject to one exception. “[T]he court may
consider the defendant’s prior convictions in determining sentencing based on

52
a certified record of conviction without submitting the prior convictions to a
jury.” (§ 1170(b)(3).)
Here, the trial court committed a straightforward violation of section
1170(b) when it relied on facts not proven as required by section 1170(b) to
impose the upper term. The court relied on four aggravating facts as follows:
(1) “The Court finds the crime involved great violence.”

(2) “The defendant was armed with a weapon at the time.”

(3) “The defendant has served a prior prison term.”

(4) “The Court also believes the defendant has significant anger
issues as evidenced by his outbursts during trial, his behavior
during trial. The Court finds that he sometimes has significant
anger issues.”

In mitigation, the court made two findings: (1) the firearm “was not loaded,”
and (2) the “prior conviction was from 2010.”
Only one of these aggravating factors was necessarily found true by the
jury. The jury necessarily found Lattin was armed with a weapon when it
found true he personally used a weapon in violation of section 12022.5,
subdivision (a). (Compare, §§ 12022, 12022.5; see People v. Bland (1995) 10
Cal.4th 991, 996–998.) The jury was not asked to consider whether the crime
involved “great violence,” whether Lattin had “anger issues,” nor whether
Lattin served a prior term in prison.
The use of three unproven aggravating facts to impose the upper
term—the crime involved great violence, Lattin had anger issues as shown by
his outbursts at trial, and Lattin served a prior term in prison—violated the
federal constitution. As our high court recently explained, under the current
version of section 1170(b), “the facts supporting every aggravating
circumstance upon which the trial court relies to ‘justify’ imposition of the

53
upper term must be properly proven as the statute requires. . . . The current
statute specifically empowers the court to choose an upper term only if the
facts supporting each aggravating circumstance on which it relies have been
resolved by the jury or otherwise established as the statute allows. . . .
Excluding properly proven prior convictions or a defense stipulation, a jury
finding is now required for all facts actually relied on to impose an upper
term. (Lynch, supra, 16 Cal.5th at p. 757, citation omitted.) Because the
statute works in this particular way, “the Sixth Amendment jury trial right
attaches to every aggravating fact, other than a prior conviction, used to
justify imposition of the upper term.” (Id. at p. 767.) Thus, “a Sixth
Amendment violation occurs when the trial court relies on unproven
aggravating facts to impose an upper term sentence, even if some other
aggravating facts relied on have been properly established.” (Id. at p. 768.)
This is exactly the situation presented here.
The Attorney General does not contend otherwise. He claims Lattin
forfeited his objection to the sentence by failing to object below, and that any
error was harmless. We disagree.
B. No Forfeiture
The error Lattin raises here is a species of instructional error that
generally requires no objection by a criminal defendant to raise on appeal.
(People v. Hudson (2006) 38 Cal.4th 1002, 1012.) “It is settled that in
criminal cases, even in the absence of a request, the trial court must instruct
on the general principles of law relevant to the issues raised by the evidence.”
(People v. St. Martin (1970) 1 Cal.3d 524, 531.) The trial court’s sua sponte
duty includes instructing on the essential elements of each charge. (People v.
Mil (2012) 53 Cal.4th 400, 409.) The trial court’s duty to instruct on required
elements includes instructing on “sentencing factors,” which, “like

54
elements . . . have to be tried to the jury and proved beyond a reasonable
doubt.” (Washington v. Recuenco (2006) 548 U.S. 212, 220.) Not instructing
on essential elements is “very serious constitutional error because it
threatens the right to a jury trial that both the United States and California
Constitutions guarantee.” (Merritt, supra, 2 Cal.5th at p. 824.) Where a
defendant’s substantial rights are affected, no objection is required to raise
this type of error on appeal. (§ 1259.)
The Attorney General’s reliance on People v. Scott (1994) 9 Cal.4th 331
is misplaced. The Court in Scott addressed forfeiture in the context of a
former version of section 1170(b). Under the former version, the trial court
had “broad discretion” based on its own finding of facts “to impose the lower
or upper term instead of the middle term of imprisonment” so as “to tailor the
sentence to the particular case.” (Scott, supra, at p. 349.) For many policy
reasons, the Court concluded “that the waiver doctrine should apply to claims
involving the trial court’s failure to properly make or articulate its
discretionary sentencing choices.” (Id. at p. 353, italics added.) Its specific
holding was: “[W]e hold that complaints about the manner in which the trial
court exercises its sentencing discretion and articulates its supporting
reasons cannot be raised for the first time on appeal.” (Id. at p. 356.) By
contrast, the sentencing error here involves a new version of section 1170(b),
and the non-discretionary federal constitutional right to a jury trial on every
aggravating fact used to increase a defendant’s sentence. (Lynch, supra, 16
Cal.5th at p. 742.) The holding in Scott does not apply to this type of error.
Regardless, the law was in a state of uncertainty when Lattin was
sentenced. At the time, it was not clear whether every aggravating fact used
to support the imposition of an upper term sentence had to be found true
beyond a reasonable doubt by a jury or whether a true finding by a jury on a

55
single aggravating fact was sufficient to render an upper term sentence
constitutional. (See People v. Falcon (2023) 92 Cal.App.5th 911, 928–937
[discussing the many conflicting appellate decisions that had interpreted
§ 1170(b) at the time of the underlying sentencing hearing], disapproved in
Lynch, supra, 16 Cal.5th at p. 751.) For this reason, even if Lattin’s failure to
object constituted a forfeiture, we would extend fairness to him and exercise
our discretion to reach the merits of his claim of sentencing error. (People v.
Williams (1998) 17 Cal.4th 148, 161–162, fn. 6.)
C. Prejudice
We use the Chapman standard when we assess whether the trial
court’s omission of a required element in its instructions to the jury was
prejudicial. (Merritt, supra, 2 Cal.5th at p. 829.) Under that standard,
Lattin is entitled to a reversal and remand for resentencing “unless, after
examining the entire cause, including the evidence as to all relevant
circumstances . . . , we can conclude that the omission of a jury trial was
harmless beyond a reasonable doubt as to every aggravating fact the trial
court used to justify an upper term sentence.” (Lynch, supra, 16 Cal.5th at
p. 775, citation omitted.)
Our task is made easy here because there was no evidence whatsoever
adduced at trial that Lattin served a term in prison. Lattin testified he had a
prior conviction, but the trial court specifically excluded all evidence he
served a prison term by an in limine order.
Under Almendarez-Torres v. United States (1998) 523 U.S. 224, trial
court judges are permitted “to undertake the job of finding the fact of a prior
conviction.” (Erlinger v. United States (2024) 602 U.S. 821, 837.) This
exception to the rule, however, permits a judge to “ ‘do no more, consistent
with the Sixth Amendment, than determine what crime, with what elements,

56
the defendant was convicted of.’ ” (Id. at p. 838.) The exception accordingly
does not extend to finding a defendant served a prison term for a prior
conviction. (See id. at pp. 838–839.)
Given the complete lack of evidence submitted to the jury, it would
have been improper for the jury to render a true finding on this particular
aggravating fact. As a consequence, the trial court’s reliance on this fact to
aggravate Lattin’s sentence was not harmless. (Lynch, supra, 16 Cal.5th at
p. 775.) Lattin is entitled to reversal and remand for resentencing.
D. Guidance on Remand
Several rules prohibit the court from the dual use of facts to increase a
defendant’s sentence. (E.g., Cal. Rules of Court, rule, 4.425(b).) Relevant
here, “[t]he court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of law.”
(§ 1170, subd. (b)(5); People v. Coleman (1989) 48 Cal.3d 112, 163.) For
guidance on remand, we observe, without deciding, that the trial court
appears to have violated this rule by relying on a finding that Lattin “was
armed with a weapon” during the crime when that fact was already used to
enhance his sentence pursuant to section 12022.5, subdivision (a), for
personal use of a gun.

57
DISPOSITION
The sentence is vacated, and the matter is remanded for further
proceedings consistent with this opinion. The judgment is affirmed in all
other respects.

DO, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.

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