People v. Peterson CA2/3

Filed 11/12/25 P. v. Peterson CA2/3
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION THREE

THE PEOPLE,                                                B331774

         Plaintiff and Respondent,                         Los Angeles County
                                                           Super. Ct. No. BA490599
         v.

DAYSTAR PETERSON,

         Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed.

      The Baez Law Firm, Jose Baez, Laura L. Cepero; Unite
the People and Crystal Morgan for Defendant and Appellant.

      Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
                   _________________________
       In December 2022 a jury convicted Daystar Peterson of
assault with a semiautomatic firearm on Megan Pete, carrying
a concealed unregistered firearm in a vehicle, and discharging a
firearm with gross negligence. The court sentenced Peterson to
10 years in the state prison. On appeal, Peterson contends the
trial court committed a number of errors. We find no prejudicial
error and, accordingly, affirm Peterson’s conviction.
        FACTS AND PROCEDURAL BACKGROUND
Peterson fires five shots at Pete, striking her in the feet
      On July 12, 2020, Pete went to a gathering at Kylie
Jenner’s house. At some point, Pete texted Peterson and “told
him to come.” When Peterson arrived, it was “really late.”
Eventually, Pete wanted to leave. Pete, her friend and personal
assistant Kelsey Harris, and Peterson got in an SUV driven by
Peterson’s driver, Jauquan Smith. An argument started about
the relationships among Pete, Harris, and Peterson.
      Pete asked to be let out of the SUV. Pete got out and
started walking away. She heard Peterson say, “ ‘Dance, bitch.’ ”
Pete turned her head a little bit and saw Peterson pointing a gun
at her. She froze. Pete heard shots. She looked down at her feet
and saw “all the blood.”
      Pete dropped to the ground and crawled into a driveway.
Pete felt pain in both her feet. After that, “[i]t [got] blurry.” Pete
saw Peterson and Harris walking toward her. Peterson “started
apologizing.” Pete got back into the SUV. They heard police
sirens and Peterson told Pete and Harris, “ ‘Please, y’all, don’t
say anything. I’m about to sign a big deal. I’ll give both of you a
million dollars each.’ ” At 4:27 a.m., Harris sent a text to Justin




                                  2
Edison, who handled Pete’s security. The text said, “ ‘Help. Tory
shot Meg. 911.’ ”1
       Police stopped the SUV. They asked everyone to get out.
Pete told the police she’d stepped on glass. She didn’t tell them
she’d been shot. When asked at trial why she told the police
she’d stepped on glass, Pete referred to the then-recent murder of
George Floyd. Pete testified she didn’t “know if they’re going to
shoot first and ask questions later,” and she didn’t “feel safe with
the police officers.”
       Officers found a 9mm Luger semiautomatic handgun on the
floorboard of the front passenger seat. The gun was in the slide
lock position, meaning all the rounds had been fired from the
magazine. It was warm to the touch, even though it was cold
outside at that hour of the morning. Officers also found a bloody
towel in the backseat.
       The officers took Peterson, Harris, and Smith into custody.
At the station, officers checked the hands of all three for gunshot
residue. The samples taken from Peterson and Harris were
positive for gunshot residue. A criminalist testified at trial that,
if Harris had been standing “within feet of an individual firing a
firearm and came into contact with that individual after he fired
a firearm,” she would not be surprised if Harris tested positive for
gunshot residue. No gunshot residue particles were detected on
the sample taken from Smith.
       An ambulance took Pete to the hospital. Neither in the
ambulance nor at the hospital did Pete tell the medical providers
that she’d been shot. She later explained, “[I]n the Black


1     Peterson, a rap artist, performed as Tory Lanez. The
record reflects friends also called him Tory.




                                 3
community, . . . it’s not really acceptable to be cooperating with
police officers.” Pete also said that, when a woman accuses a
man of something, “people have a hard time believing you.” She
added, “This whole situation in the industry, like a big boys’ club.
Like, I’m telling all of y’all’s friends, and now everybody about to
hate me.”
      Around 9:05 the morning of the shooting, Peterson called
Harris from jail. A recording of the call was played for the jury.
Harris told Peterson that Pete was still in the hospital and she
was waiting outside. Peterson said,
             “I know she probably never ever gonna ever
          talk to me ever again, but bruh I just want you to
          know bruh, n***a I was just so fucking drunk. . . .
          I never do some shit like that bruh. . . . [Y]ou
          know regardless that’s not gonna make anything
          right, and that’s not gonna make my actions right
          bro, but I’m just deeply sorry bruh. . . . So, like I
          feel crazy bruh, but made a mistake like, what
          happened, happened already bruh. I can’t take it
          back bruh. . . . I’m just telling y’all I’m sorry
          bruh.”
      At 8:59 p.m. that evening, Peterson texted Pete. The text
said,
             “Meg I know u prolly never gone to talk to me
          again[.] But I genuinely want u to know I’m sorry
          from the bottom of my heart[.] And I was just too
          drunk. None the less shit should have never
          happened and I can’t change what I did. I just feel
          horrible[.] Cuz I genuinely just got too drunk. I
          love u and I hope ur okay.”




                                 4
       Peterson sent Pete other text messages “just apologizing.”
       Pete had bullet fragments in both of her feet. She had to
have surgery and physical therapy. Pete “couldn’t walk for a
while.” She “can’t really feel the left side of [her] foot.”
       About four days after the shooting, Pete told police who had
shot her. Pete testified she’d “had a change of heart” because
Peterson “had tried to start getting ahead of the story” online;
he’d “put it on a bunch of different narratives about what
happened.”
       DNA testing of the Luger revealed a profile of at least four
people. Peterson could not be excluded or included. His
“contribution” was “inconclusive.” DNA testing of the magazine
also revealed a profile of at least four people. Peterson was not
one of them. No usable fingerprints were found on the gun or the
magazine.
       In response to the prosecutor’s questions at trial, Pete
testified she was “having a really difficult time sitting up [there]
and trying to comfortably tell [her] story.” Apparently referring
to spectators in the courtroom, Pete said “a group of people [had
been] continuously spreading misinformation to make her look
like a bad person.”
The charges, trial, and verdicts
      The People charged Peterson with assault with a
semiautomatic firearm on Pete (count 1), having a concealed
firearm, not registered to him, in a vehicle (count 2), and
discharge of a firearm with gross negligence (count 3). In count 1
the People alleged Peterson personally used a firearm. In counts
1 and 3, the People alleged Peterson personally inflicted great




                                 5
bodily injury on Pete. The People also alleged aggravating
factors under the California Rules of Court.2
       The case went to trial in December 2022. Among other
witnesses, the defense called Sean Kelly. Kelly testified he lived
near Nichols Canyon. In July 20203 Kelly was asleep. He was
awakened by “lots of shouting and voices.” He looked through
his window and saw “two girls arguing.” Then they “started
fighting.” They were “pulling their hair” and “hitting each other.”
“It was quite violent.” A tall man got out of the driver’s side of
the “car” and “got involved” in the fighting.
       One of “the girls” went to the car. Kelly then heard what
at first he thought were fireworks. He saw a muzzle flash. At
“[a]bout the same time,” a “smaller gentleman” got out of the
back passenger seat. “He was shouting a lot.” Kelly “saw more
flashes” and “what was, obviously, gunfire.” The muzzle flash
was near “the girls.”
       Kelly did not hear anyone say, “ ‘Dance, bitch.’ ” Although
both defense counsel’s questions and Kelly’s answers were
unclear, Kelly seemed to say the “girl” “who was the aggressor”
went to the car and he saw the muzzle “flashes coming from” her
“hand.” Kelly then said “the flashes came from” the shorter man.


2      About two weeks into the trial, near the end of the People’s
case, the prosecution moved to add two more felony counts to the
information for dissuading two witnesses (Pete and Harris) under
Penal Code section 136.1. The court denied the motion.
       References to statutes are to the Penal Code unless
otherwise noted.
3     Counsel didn’t ask Kelly about a precise date, referring
only to “an incident that took place in July of 2020.”




                                6
Kelly testified, “I believe I saw the girl shoot first.” “They were
both shooting.” Kelly never saw a gun. He called 911.
       On cross-examination, Kelly admitted he’d told
investigators that “the short guy came out of the car” and “ ‘then
he shot the girl.’ ” The “girl” then “fell into the road and started
bleeding.” When asked, “[W]hat was he saying at that time?”
Kelly replied, “A torrent of abuse.” “It was all just n-words. And,
you know, eff—mother-effer and . . . .” Kelly also admitted he’d
never mentioned “a girl involved in the shooting to the 911
operator.” Nor did he mention a female shooter to the responding
officer.
       Peterson chose not to testify.
       The jury convicted Peterson on all three counts and found
the firearm and great bodily injury allegations true. Peterson,
represented by new counsel, filed a motion for a new trial. The
court conducted a lengthy hearing on the motion over several
days. The court ultimately denied the motion.
       The court conducted a bench trial on the factors in
aggravation under the California Rules of Court.4 The court
found true aggravating factors that Peterson used a weapon in
the commission of the crime and that the victim was particularly
vulnerable. (See rule 4.421(a)(2), (3).) The court also found
Peterson’s “conduct toward the victim after the incident” to be
an aggravating factor. The court listed “social media posts,
releasing songs with lyrics directed toward the victim, attempts
to dissuade or perhaps give money to her and the other witness,


4     References to rules are to the California Rules of Court. At
the beginning of the trial, Peterson agreed to bifurcate trial on
the factors in aggravation and to waive jury on those allegations.




                                 7
[and] violating the protective order.”5 The court stated, “I think
this is a very significant aggravating factor in this case.” The
court added, “[T]here were two times that he violated the
protective order where the court had to step in and raise his bail.”
       The court found not true the prosecution’s allegation that
the crime involved a high degree of cruelty, viciousness, or
callousness within the meaning of rule 4.421(a)(1).



5      The trial court increased Peterson’s bail several times
between his arraignment in November 2020 and trial in
December 2022. In August 2021, the court granted the
prosecution’s motion to increase bail. As a condition of bail (at
the new higher amount), the court ordered Peterson “not to
attend or appear at events where Megan P. is scheduled to
appear.” In April 2022, the parties again appeared before the
court to discuss another motion the prosecution had filed to
increase bail. The prosecutor referred to a “music video where
he’s depicting violent imagery, coupled with look-alike’s in the
video of [Pete] and her boyfriend.” This apparently was a
reference to a music video Pete mentioned in her testimony at
trial showing Peterson “chopping up horse legs.” Based on the
exhibits the prosecution presented, the court found Peterson in
violation of both the protective order and the discovery order. As
a condition of bail (at the new higher amount), the court told
Peterson, “Sir, . . . you are not to mention [Pete] in this case or
anything about this case in any social media or any public
statements either directly or indirectly.” In October 2022, the
parties appeared before the court yet again on the prosecution’s
motion to set bail at “no bail.” The court denied that motion but
ordered “electronic monitoring house arrest” for Peterson pending
trial. The record on appeal includes reporters’ and clerks’
transcripts of the bail proceedings but not the motions, opposition
briefs, or exhibits filed in connection with them.




                                 8
       The court also found three mitigating factors: that
Peterson had no prior record (or an insignificant record) of
criminal conduct, that he had “actively participated in charitable
or philanthropic causes,” and that he did “not pose a significant
risk of re-offending in a violent manner.” (See rule 4.423(b)(1),
(c).)
       Before pronouncing sentence, the court heard from seven
witnesses called by Peterson. The court also listed the authors of
76 letters it had received from Peterson’s supporters. A
prosecutor read aloud a letter written by Pete as a victim impact
statement.
       The prosecution asked the court to sentence Peterson
to 13 years in the state prison. The court sentenced Peterson
to 10 years. The court found the aggravating and mitigating
circumstances were “a wash.” The court selected the midterm
of six years on count 1, assault with a semiautomatic firearm.
The court also chose the midterm of four years for the firearm
enhancement. On count 2—carrying a concealed unregistered
firearm in a vehicle—the court sentenced Peterson to the
midterm of two years to be served concurrently with count 1. The
court stayed under section 654 the sentence on count 3, discharge
of a firearm with gross negligence. As to both counts 1 and 3,
the court dismissed the great bodily injury enhancement under
section 1385, subdivision (c)(2), presumably in accordance with
Senate Bill No. 81 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 721,
§ 1).




                                9
                         DISCUSSION
The trial court did not abuse its discretion in permitting
the prosecutor to ask Pete questions directed to her
inconsistent reports to police and her attitude about
the case and about testifying
      Peterson contends the trial court abused its discretion in
“allowing testimony and evidence concerning Pete’s emotions
about the incident and its aftermath.” On direct examination,
the prosecutor asked Pete questions about her initial statements
to law enforcement and medical personnel that she’d cut her feet
on glass. Pete responded that, when a woman says a man did
something to her, “people have a hard time believing you.” Pete
said she never wanted to come forward: “I didn’t want to say
nothing in the first place.” Defense counsel objected to nine
questions along these lines. The court overruled five of the
objections and sustained four.
      On cross-examination, defense counsel repeatedly asked
Pete if she had lied:
          “Q: You also on CBS were asked a couple of times
          if you had some type of sexual relationship with
          my client; correct? [¶] . . . [¶]
          “A: Yes.
          “Q: And you lied; correct?
          “A: Yes.
          “Q: You lied on national TV; correct?
          “A: Yes.
          “Q: You also lied to the prosecutors; correct?
          “A: Yes.




                               10
          “Q: You also lied to Detective Stogner about this
          issue about the relationship; correct?
          ”A: Yes.”
       On redirect, the prosecutor asked Pete questions that were
follow-ups to areas defense counsel had raised. Pete testified
“people” had been “making up things and putting out different
stories that weren’t true, saying that I had never been shot at
all.” So, Pete continued, “I had to come out and say ‘Yes, I was
shot. I didn’t just step on glass.’ I should have told the truth,
initially. I know that now. And I thought I was trying to protect
people. I thought I was doing the right thing. I thought I was
protecting myself. But in the long run, I wasn’t.”
       Relevant evidence is evidence having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action. (People v. Hardy
(2018) 5 Cal.5th 56, 87 (Hardy); accord, People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 822.) Even if evidence is relevant,
Evidence Code section 352 gives the trial court discretion to
exclude it if its probative value is substantially outweighed by the
probability that its admission will create a substantial danger of
undue prejudice. (People v. Thomas (2012) 53 Cal.4th 771, 806.)
The prejudice that exclusion of evidence under section 352 is
designed to avoid “ ‘ “is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence.” ’ ”
(People v. Lopez (2021) 65 Cal.App.5th 484, 504; People v. Jones
(2017) 3 Cal.5th 583, 610.) The “prejudice” that section 352
refers to is evidence that “ ‘ “ ‘uniquely tends to evoke an
emotional bias against the defendant as an individual and [that]
has very little effect on the issues.’ ” ’ ” (Lopez, at p. 504.)




                                11
        “ ‘In general, the trial court is vested with wide discretion
in determining relevance and in weighing the prejudicial effect
of proffered evidence against its probative value. Its rulings will
not be overturned on appeal absent an abuse of that discretion.’ ”
(Hardy, supra, 5 Cal.5th at p. 87.) A trial court abuses its
discretion when its decision “ ‘exceeds the bounds of reason’ ” or
is “ ‘arbitrary, capricious, patently absurd, or even whimsical.’ ”
(Doe WHBE 3 v. Uber Technologies, Inc. (2024) 102 Cal.App.5th
1135, 1150.) Put another way, “ ‘[a] ruling that constitutes an
abuse of discretion has been described as one that is “so irrational
or arbitrary that no reasonable person could agree with it.” ’ ”
(Ibid.; see also People v. Lamb (2024) 16 Cal.5th 400, 424 [under
abuse of discretion standard, appellate court will not disturb the
trial court’s ruling unless it was arbitrary, capricious, or made
in a patently absurd manner that resulted in a manifest
miscarriage of justice].)
        Peterson contends the prosecutor’s question to Pete
regarding “how [she] felt about coming into court today” was
improper, and the trial court permitting it was “inexplicabl[e].”
Peterson is mistaken. The court instructed the jury—as courts do
in every criminal trial—on a nonexclusive list of 11 factors jurors
“may consider” in “judg[ing] the credibility or believability of the
witnesses.” (CALCRIM No. 226.) One of those factors is, “What
was the witness’s attitude about the case or about testifying?”
(Ibid.) Other factors include “Did the witness make a statement
in the past that is consistent or inconsistent with his or her
testimony?” and “Did the witness admit to being untruthful?”
(Ibid.) Pete’s credibility was a key issue in the case. Indeed,




                                 12
in cross-examination Peterson’s counsel repeatedly asked Pete
to admit she’d lied.6
       Peterson also asserts this testimony was “irrelevant and
prejudicial” because it “elicit[ed] sympathy for the victim.”
However, at the outset of the trial, the court instructed the jury,
“Your verdict must be based only on the evidence presented
during trial in the court and the law as I provide it to you.” The
court also told the jury, “Do not let bias, sympathy, prejudice, or
public opinion influence your decision.” And before closing
arguments, the court again instructed the jurors, “You must not
let bias, sympathy, prejudice, or public opinion influence your
assessment of the evidence or your decision.” “We presume that
the jury understood and followed the court’s instructions in
reaching its verdict.” (People v. Love (2025) 107 Cal.App.5th
1280, 1290; People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Evidence Code section 352.2 does not apply retroactively,
and the trial court did not abuse its discretion in
admitting a photograph of Peterson’s torso and arms
      Peterson contends the trial court “reversibly erred in
admitting evidence of Peterson’s creative expression”—
specifically, a photograph that showed tattoos on his torso and
arms. At trial, Officer Sandra Cabral testified she and her

6     Pete’s testimony about being “hat[ed]” on social media for
having come forward also was relevant to her “attitude about the
case or about testifying.” When asked, “What are some of the
things that you were seeing and how did that affect how you felt
about coming into court today?”, Pete replied, “ ‘Megan shoulda
been shot and killed. I woulda shot the bitch, too. That bitch
lying. Hoes always doing shit like this. Who cares. She fucked
everybody. She shoulda been shot.’ ”




                                 13
partner stopped a vehicle that matched the description of a
vehicle in a radio call they’d received. Four people—later
identified as Peterson, Pete, Harris, and Smith—were in the
vehicle. An ambulance took Pete away and Cabral and her
partner arrested the other three and took them to Hollywood
station “for further questioning.” As the officers had found in the
vehicle a handgun that was “warm to the touch” and “in the slide
locked position,” when they got to the station they tested
Peterson, Harris, and Smith for gunshot residue.
      The prosecutor marked as exhibits three photographs
taken at the station that depicted Peterson, Harris, and Smith
respectively. In a photo marked as Exhibit 18, Peterson appears
to be wearing black shorts or swim trunks; he is shirtless and
tattoos on his chest and arms are visible. In a photo marked as
Exhibit 19, Harris appears to be wearing a black two-piece
swimsuit; tattoos are visible on her arms and left thigh. In a
photo marked as Exhibit 20, Smith appears to be wearing black
pants and a long-sleeved black top. At sidebar, Peterson’s
counsel objected to the photograph, arguing it was irrelevant
and would “only sway the jury,” because “[it] looks like he’s got
tattoos.” The court replied the photos were “to show who the
people are that she [referring to Officer Cabral] took the swab[s]
from.” The court continued, “I don’t see anything wrong. He has
no shirt on. He has tattoos. Other than that, what’s wrong with
the picture.”
      At the conclusion of the evidence, the court discussed the
exhibits with counsel. When the court asked defense counsel if
he had any objection to the admission into evidence of Exhibits
18, 19, or 20, he replied, “No, Your Honor.”




                                14
       In support of his claim of reversible error, Peterson cites
Evidence Code section 352.2. Assembly Bill No. 2799 (2021–2022
Reg. Sess.) (Stats. 2022, ch. 973, § 2) enacted that statute, which
took effect on January 1, 2023. (Evid. Code, § 352.2; People v.
Aguirre (2025) 18 Cal.5th 629, 725 (Aguirre); People v. Ramos
(2023) 90 Cal.App.5th 578, 580 (Ramos), review granted July 12,
2023, S280073.) The statute requires trial courts to consider
certain factors when “a party seeks to admit as evidence a form of
creative expression” “[i]n any criminal proceeding.” (Evid. Code,
§ 352.2, subd. (a).) The statute defines “ ‘creative expression’ ” as
“the expression or application of creativity or imagination in the
production or arrangement of forms, sounds, words, movements,
or symbols, including, but not limited to, music, dance,
performance art, visual art, poetry, literature, film, and other
such objects or media.” (Evid. Code, § 352.2, subd. (c).)
       Peterson cites People v. Venable (2023) 88 Cal.App.5th 445,
review granted May 17, 2023, S279081. In Venable, the court of
appeal held Evidence Code section 352.2 applies retroactively to
cases that are not yet final. (Venable, at p. 448.) In his opening
brief, Peterson failed to note that our Supreme Court had granted
review in Venable (S279081) some nine months earlier. Peterson
also failed to cite either of the two cases that reached the opposite
conclusion: People v. Slaton (2023) 95 Cal.App.5th 363, 375,
review granted November 15, 2023, S282047, and Ramos, supra,
90 Cal.App.5th at pp. 590–596, review granted July 12, 2023,
S280073. In his reply brief, Peterson acknowledged the grant of
review and mentioned Slaton. Peterson stated he “relie[d] on his
previous argument” pending “a final outcome” in the high court.
       On August 28, 2025, our Supreme Court held in Aguirre,
supra, 18 Cal.5th 629, that Evidence Code section 352.2 does not




                                 15
apply retroactively. (Aguirre, at pp. 683, 687–693.) Aguirre
involved handwritten rap lyrics and instant messages attributed
to the defendant. (Id. at pp. 653–655, 683–686.) Chief Justice
Guerrero explained that the high court, having “[e]xamin[ed]
the language of Evidence Code section 352.2 and its uncodified
legislative findings,” saw “nothing that ‘clearly and unavoidably’
[citation] reveals an intent to depart from the general rule of
prospective-only application.” (Id. at p. 690.) Accordingly,
Evidence Code section 352.2 does not assist Peterson.
       In any event, the record does not support Peterson’s
contention that Exhibit 18 “inject[ed] racial bias into the
proceedings.” The prosecution did not offer the photograph as
evidence of any alleged gang affiliation. There was no gang
allegation in this case and no one ever suggested that Peterson
had any gang ties. The prosecution offered Exhibit 18 (and
Exhibits 19 and 20), and the court admitted them into evidence,
solely to show the identity of the individuals officers swabbed
for gunshot residue at the police station.
       The record does not reflect whether Peterson was wearing a
shirt when police stopped his vehicle. Pete testified they’d just
emerged from the swimming pool. She was wearing a bikini and
Harris “was in a swimsuit, too.” Pete’s stylist Eric Culberson—
called by the defense—also testified both Pete and Harris were
wearing swimsuits when they got into the SUV. Culberson also
testified Peterson was wearing “drawers” when they left Jenner’s
house. In his closing argument, Peterson’s counsel referred to
what Peterson was wearing as “his trunks.” There was no
testimony at trial that Peterson had been wearing a shirt and
the officers asked him to remove it in order to swab his hands
for gunshot residue or to take his photograph.




                               16
       Peterson asserts “the prosecution explicitly and
improperly introduced racial bias into the proceedings” by asking
a witness about what appears to be a tattoo of a firearm in the
middle of Peterson’s chest. Defense witness Culberson testified
he was Pete’s “stylist and friend”; he sometimes was Pete’s driver
as well. From the questioning, it appears the defense called
Culberson to ask him if Pete or Harris had had a gun in their
luggage. On direct examination, defense counsel also asked
Culberson if he’d “ever seen Tory with a gun.” Culberson replied,
“No.” Counsel asked if Peterson “[ran] around with guns.”
Culberson answered, “No.”
       On cross-examination, the prosecutor asked Culberson a
series of questions about whether he’d ever seen Harris with a
gun and whether he’d seen Pete with a gun “at any time that day
or night.” He did not ask Culberson if he had ever seen Peterson
with a gun. On redirect, defense counsel then asked Culberson if
he’d ever seen Peterson with a gun, if he’d ever seen Peterson
“have a bag that had some weapons with him,” and whether he’d
ever “seen [Peterson] discuss anything about firearms [sic].”
Culberson answered “no” to those questions.
       On recross-examination, the prosecutor and Culberson had
the following exchange:
          “Q: Now, counsel asked you if you’ve ever seen
          Tory talk about guns or if you’ve ever seen him
          with guns; do you recall that?
          “A: Yes.
          “Q: Do you see the big gun that Tory has tattooed
          on the center of his chest?
          “A: No. I haven’t seen Tory’s body.”
       Defense counsel did not object to that question.




                                17
       In short, the record does not support Peterson’s contention
that “prosecutors utilized Peterson’s tattoo, which is intertwined
with his rapper persona, to lead jurors . . . [to conclude] he is a
violent criminal with a predisposition to commit crimes.” It was
defense counsel who asked—both on direct and on redirect—if
Culberson had ever seen Peterson with a gun. Neither of the
prosecutors even mentioned Peterson’s tattoos—much less the
tattoo of a firearm—in their closing arguments.
       Peterson also complains that Pete’s testimony about a
music video Peterson had released “poisoned the proceedings by
directing the jury to infer that if Peterson was ‘chopping up horse
legs’ in a music video, he was violent enough to shoot her.”
Peterson seems to be referring to Pete’s answer to the
prosecutor’s question about whether she regretted having come
forward: “If I would have known that coming out and speaking
my truth would come with people agreeing with me being shot, if
I would have known, I would have started to lose my confidence.
Lose my friends. Lose myself. I didn’t ask for this. I didn’t want
to come out about it in the first place. I started to feel like,
‘Damn, maybe I should be dead.’ I got to watch Tory drop music
videos chopping up horse legs and people laughing at it, like
that’s okay.” Defense counsel did not move to strike Pete’s
reference to the music video.
       No such music video was offered into evidence or shown to
the jury. In any event, Pete’s brief reference to the video—which
she took as directed at her or even as a threat—was permissible
for the same reasons we’ve already discussed: it’s relevant to
Pete’s attitude about the case or about testifying.




                                18
The trial court did not “impermissibly chill[] Peterson’s
right to testify” and—as Peterson did not testify—he cannot
raise this issue on appeal
       Peterson asserts, “The jury did not hear Peterson’s account
regarding the night in question because the court ruled that, if
he testified, prosecutors could introduce his music video and rap
lyrics during cross-examination.” Peterson mischaracterizes the
record.
       Midway through the defense case, the prosecutor told the
court he was “asking” to “inquire about prior acts of violence” if
Peterson testified, “to rebut the character evidence put on by
the defense.” The court replied, “Well, I think the state of the
evidence as it is now, I would not allow that. Of course, I don’t
know what he would say if he testifies. It may become relevant
depending on what he were to say. But at this point, I will
exclude that.”
       The prosecutor listed a number of items with which he
proposed to impeach Peterson, including “social media posts,”
“rap lyrics,” “Instagram posts,” a 2019 Miami incident, a 2022
incident with August Alsina,7 an “incident with ‘Love & Hip Hop’
star, Prince, at a Florida nightclub,” and more. The court stated,
“[S]ome of this would be admissible, those portions that pertain
to this case. Some wouldn’t.” The court continued, “[T]he best I
can tell you at this point is if your client testifies I’ll have to take
it on a case-by-case basis. But, essentially, anything pertaining


7     Alsina is a singer-songwriter. The prosecution alleged
Peterson—“wearing heavy rings on his fingers”— had “punched”
Alsina “without warning” on September 17, 2022 in Chicago,
knocking him to the ground and “[b]loodying him.”




                                   19
to this case, obviously, is fair game. If it pertains to some other
incident, maybe it is. Maybe it isn’t. It depends.”
       After the defense had called seven witnesses, the following
exchange took place:
          “The Court: So, Mr. Mgdesyan, you’ve advised me
          that your client has elected not to testify.
          “Mr. Mgdesyan: That’s correct, Your Honor.
          “The Court: So, Mr. Peterson, you know you have
          the absolute right to testify, if you choose. [¶] You
          have the absolute right not to testify, if that’s your
          decision. [¶] If you testify, you will take the stand
          and be questioned just like all the other witnesses
          were by both sides. [¶] If you choose not to testify,
          I will instruct the jury not to consider it or not to
          hold it against you. [¶] Do you understand what I
          told you so far?
          “Mr. Peterson: Yes, Your Honor.
          “The Court: Have you had a chance to discuss
          that decision with your attorney?
          “Mr. Peterson: I have, Your Honor.
          “The Court: And based on your discussion, is it
          your choice at this point not to testify?
          “Mr. Peterson: I will not testify.”
       Neither Peterson nor his counsel ever told the court that
Peterson wished to testify, but was deterred by the prospect of
impeachment by the prosecution.
       In Luce v. United States (1984) 469 U.S. 38 (Luce), the
Supreme Court considered a case—like this one—in which a
defendant did not testify and then argued on appeal the court
had abused its discretion in denying his motion in limine to




                                20
preclude the prosecution from asking about a prior conviction.
(Id. at pp. 39–40.) The Court stated, “A reviewing court is
handicapped in any effort” to determine if a trial court performed
the necessary balancing, because—to conduct that review—“the
court must know the precise nature of the defendant’s testimony,
which is unknowable when, as here, the defendant does not
testify.” (Id. at p. 41.) In Luce, as here, “[t]here was no
commitment by [the defendant] that he would testify if [his
request to exclude possible impeachment] were granted, nor did
he make a proffer to the court as to what his testimony would be.”
(Id. at p. 39.)
       Moreover, “a reviewing court cannot assume that the
adverse ruling motivated a defendant’s decision not to testify.”
(Luce, supra, 469 U.S. at p. 42.) And, “[e]ven if these difficulties
could be surmounted, the reviewing court would still face the
question of harmless error.” (Ibid.) The Supreme Court
concluded, “The careful weighing of probative value and
prejudicial effect . . . require[d] of a [trial] court can only be
evaluated adequately on appeal in the specific factual context of a
trial as it has unfolded.” (Id. at p. 43 (conc. opn. of Brennan, J.);
see also People v. Collins (1986) 42 Cal.3d 378, 385 [adopting
Luce rule]; People v. Duong (2020) 10 Cal.5th 36, 56–57 [“ ‘It
is well established that the denial of a motion to exclude
impeachment evidence is not reviewable on appeal if the
defendant subsequently declines to testify.’ ”].)
       The Luce Court’s reasoning is directly on point here.
Peterson argues Luce does not apply because (1) that case
involved possible impeachment with a prior criminal conviction,
and (2) Evidence Code section 352.2 would have required the
court to exclude all of the possible impeachment evidence.




                                 21
We are not persuaded. Nothing in Luce suggests its holding is
limited to impeachment with a prior conviction as opposed to
other types of conduct or acts. And, as we have said, Evidence
Code section 352.2 “does not guide us in this appeal.” (Aguirre,
supra, 18 Cal.5th at p. 693.)
The mention of Peterson’s criminal case in Florida was
not prejudicial
       Peterson asserts, “Inculpatory statements, which were
inculpatory as to the shooter’s identity, were improperly
introduced in spite of their factual falsity.” Peterson apparently
is referring to Pete’s testimony that, shortly after the shooting,
when she and the others heard police sirens and Peterson offered
her and Harris a million dollars, Peterson said, “I can’t go to jail.
I already got caught with a gun before. Don’t tell on me.” A few
questions later, the prosecutor asked Pete, “What’s he saying
exactly?” Pete replied, “ ‘I’ll give y’all a million dollars if you
don’t say anything. I can’t go to jail no more. I’m already on
probation.’ ”
       In the defense case, Peterson’s counsel recalled the lead
detective, Ryan Stogner. Counsel questioned Stogner about his
interview of Pete after the shooting. Counsel asked if Pete had
told him “that [Peterson] stated, ‘Please don’t say anything
because I’m on probation.’ ” Stogner began to answer, “It was
something to that—” when the prosecutor objected. The court
overruled the objection. This exchange followed:
          “Q: Sir, did you do any investigation afterwards to
          find if my client was on probation at the time this
          case was happening in July of 2020?
          “A: Yes.




                                 22
          “Q: Was my client on probation, sir?
          “A: No. Not to my best recollection, sir.”
       After defense counsel asked Stogner about probation, the
prosecutor began to ask a question about it. Defense counsel
objected. At sidebar, the prosecutor told the court, “Mr. Lanez
was actually on a Florida Miami probationary term that started
in 2017.” She added that, even if that were not the case, defense
counsel was accusing the victim of lying about what Peterson had
said. Defense counsel stated Peterson “got arrested in the Miami
case but was never charged.”
       Outside the jurors’ presence, the court and counsel
discussed the matter at some length. The prosecutor told the
court, “The defendant was ordered diversion [sic] for a gun
possession in 2017. He released an Instagram live video where
he talks about going to his probation officer.” After more
discussion, the court stated, “I will allow you to inquire that there
was an incident in 2017. He was placed on court diversion. Don’t
mention what the arrest was for. And we’ll leave it at that.”
       Later, defense counsel and the prosecutor stipulated to
advise the jury that Peterson “was ordered a grant of diversion
for a criminal case in 2017 and that diversion was terminated
in April of 2017.” The court told the jury the stipulation meant
“that is a fact that’s not in dispute in this case” and they were
“to accept that as conclusively proven.”
       Both counsel also agreed to a special jury instruction about
diversion. In accordance with that agreement, the court
instructed the jury about the nature of diversion. The instruction
stated, “Diversion and probation are not the same. [¶] You are
not to speculate about the circumstances of Mr. Peterson’s grant
of diversion in 2017. [¶] It was terminated in 2017. [¶] And you




                                 23
are not to conclude from this evidence that Mr. Peterson has
a bad character or that he’s disposed to commit crime.”
      Thus, after the prosecution asked Pete about Peterson’s
statements, defense counsel raised the issue of “probation” with
the detective in an effort to show Pete lied to the police. Pete’s
testimony that Peterson said he’d been “caught with a gun
before” was not false. In any event, Peterson’s counsel reached
an agreement with the prosecution to present a stipulation with
the true facts to the jury, and for the court to instruct the jury on
what “diversion” means. The record does not support Peterson’s
claim of error on this point.
The trial court did not err in permitting the prosecution
to play for the jury, as a prior inconsistent statement, the
recording of Kelsey Harris’s interview with prosecutors
       Peterson contends the trial court “reversibly erred” in
permitting the prosecution to play for the jury its recorded
interview with Kelsey Harris. Peterson relies on the
confrontation clause and Crawford v. Washington (2004) 541
U.S. 36. Peterson is mistaken. The issue is one of admissibility
under the Evidence Code. It does not involve the confrontation
clause.
       The prosecution subpoenaed Harris to testify at trial. The
court had appointed counsel for Harris and the prosecution had
granted her use immunity. Once on the stand, to say Harris was
a reluctant witness is an understatement.
       Harris repeatedly claimed not to remember what had
happened that early morning and in the days following the
shooting. To question after question, Harris replied she didn’t
remember, couldn’t remember, or didn’t know. She repeatedly
said it was “a blur.” Several times, Harris said she wanted to




                                 24
“take [the] fifth.” The court told her she had to answer the
questions. Harris repeatedly said, “I don’t want to be here.”
      In an attempt to refresh Harris’s recollection, the
prosecutor played excerpts of a recording of a September 14, 2022
interview. The two prosecutors had interviewed Harris in the
presence of her husband and an investigator from the district
attorney’s office; two attorneys representing Harris were present
on the phone. Again and again at trial, Harris told the
prosecutor she’d have to refresh her recollection with the
recording. Confronted with her prior inconsistent statements,
Harris testified there were “some things [she] just wasn’t being
truthful about” in her interview.
      Harris also testified she didn’t remember telling
prosecutors things that she can be heard saying in the recording.
When asked if she had said in the interview that she’d seen
Peterson “shooting through the window and to the top of the
door,” Harris replied, “Again, this is the night of alcohol. I don’t,
you know, I don’t know. I don’t know.”
      In light of Harris’s claimed failure to recall what she’d told
the authorities, and her testimony that she had been untruthful
in some of her statements, the prosecution proposed to play the
recorded interview for the jury. Citing Evidence Code sections
770 and 1235, the court said it would allow that. Section 770
generally governs the admissibility of “extrinsic evidence” of
a witness’s prior inconsistent statement for impeachment. The
statute requires only that the witness be given an opportunity
at some point in the trial to explain or deny the inconsistent
statement. (Evid. Code, § 770, subd. (a).) Section 1235 provides,
“Evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if the statement is inconsistent




                                 25
with his testimony at the hearing and is offered in compliance
with Section 770.” Where the out-of-court statement is
inconsistent with the witness’s trial testimony, the jury may
consider the prior statement for its truth as well as for the light it
sheds on the witness’s lack of credibility. (See CALCRIM No. 318
[jurors may use witness’s prior statement to evaluate witness’s
testimony and as evidence that information in earlier statement
is true].) So the prior statement has a dual purpose: it may be
considered for impeachment as well as substantive evidence.
       When a trial court concludes, on substantial evidence, that
a witness’s professed lapses of memory are false, evasive devices
to avoid truthful answers, it may admit as “ ‘inconsistent’ ” the
witness’s prior statements describing events the witness now
claims to have forgotten. (People v. Arias (1996) 13 Cal.4th 92,
152; see also In re Deon D. (1989) 208 Cal.App.3d 953, 961–963.)
The trial court did not abuse its discretion in admitting
evidence regarding an Instagram post
      Peterson contends the trial court “reversibly erred in
admitting an allegedly inculpatory Instagram post which was
disclosed to the defense in an untimely fashion, amounted to
inadmissible hearsay, and was highly prejudicial thereby
resulting in a manifest injustice.” We do not agree.
      After the jurors were selected on a Thursday, the court
excused them so it could discuss various issues with counsel
before opening statements, set to begin on Monday. During that
discussion, the prosecutors told the trial court and defense
counsel that they’d “just [been] made aware” of a September 2020
Instagram post “by the defendant” in which he said a comment
posted by someone else that Harris shot Pete was “not true.” The
prosecutor gave “that information on a CD” to defense counsel,




                                 26
who said he’d look at it, but he thought there might be “a
foundation issue.”
       The following Tuesday, the prosecution filed a “motion
to admit the defendant’s statement on Instagram[.]” The
prosecution attached to its motion a photograph of a post by
“LilJuMadeDaBeat” that said, “This goofy a** ni**a[8] say he ain’t
shoot her and they literally have matched the bullets from his
gun to the ones in her foot[.]” Below is the statement: “Liked by
frostedcupkait and 281,393 others[.]” Next, by “theshaderoom”:
“#MeganTheeStallion’s producer alleges that authorities have
matched the bullets from #ToryLanez’s gun to the ones found in
her foot (See earlier posts)[.]” Under that: “View all 13,727
comments[.]” Next, “spliffkaay_” says “People saying Kelsey shot
her [crying emoji][.]” Finally, a post by “torylanez @spliffkaay_”
“that’s not true[.]” The date on the posts is September 25, 2020.
       Two days later, the court discussed the Instagram posts
with counsel. Citing People v. Valdez (2011) 201 Cal.App.4th
1429 and People v. Lee (2022) 81 Cal.App.5th 232,9 the court
stated, “[I]f the People establish the requisite foundation; namely,
that this account is linked to a certain individual, that goes more
to the weight of the evidence than the admissibility.”
       Detective Warren Eberhardt then testified. Eberhardt
stated he had “clicked on the torylanez hyperlink, and that


8     The prosecution X’d out three letters in the post.
9     Only portions of the Lee opinion were published. The part
discussing the admissibility of Facebook and Instagram posts was
not in the published portion. The Lee court cited other published
opinions, including People v. Goldsmith (2014) 59 Cal.4th 258,
267.




                                27
directed [him] to an Instagram page where the user name was
Tory Lanez.” Eberhardt explained the “blue check” on the page
was “essentially, a verification badge.” Eberhardt testified the
Tory Lanez account has 11.8 million followers. He noted
photographs on the account appeared to depict Peterson.
       On cross-examination, when asked, “Do public figures have
people who run their Instagrams?”, Eberhardt replied, “[T]hat’s
fair to say, yes.” Eberhardt testified he’d “never said” Peterson
made the post, adding he could “only testify to the user name of
the account that the post came from.” Eberhardt stated he did
not know who was “controlling” Peterson’s account. Defense
counsel marked as Exhibit E and showed to Eberhardt an
Instagram post apparently from user “@midjordan” replying to
“@messiahcarey.” The post states, “ ‘This is not real. Y’all want
to believe anything. I am the only person with access to Tory’s
account at the moment.’ ” Defense counsel noted the post had
been “liked” by “Tory Lanez.” Eberhardt testified he’d never seen
the post.
       When the time came to discuss with counsel the admission
of the exhibits, defense counsel said he objected to Exhibit 40A,
the Instagram posts, and Exhibit 40B, photographs on the
account, on “foundation.” The court admitted the exhibits over
counsel’s objection. Defense counsel moved the admission of
Exhibit E. The court stated it wasn’t “sure any foundation was
laid.” The prosecution objected on that ground and the court
sustained the objection. The court noted the exhibit’s exclusion
did “not preclude [defense counsel] from arguing that any post
would have come from other people other than [Peterson].” And
counsel did so.




                               28
       On appeal, Peterson complains of late discovery. Counsel
never made this objection during trial: he did not ask for a
continuance, exclusion of the exhibit as a discovery sanction, or
a jury instruction. It was not until Peterson filed his motion for
a new trial that he first raised the issue. Peterson has forfeited
the timeliness issue on appeal.
       Peterson also asserts the Instagram posts are inadmissible
hearsay. “A trial court’s ruling on the admissibility of evidence,
including ‘on the hearsay nature of the evidence in question,’ is
reviewed for abuse of its discretion.” (People v. Holmes, McClain
and Newborn (2022) 12 Cal.5th 719, 766.) We need not reach the
question of any abuse of discretion here (and we see none in any
event), because Peterson did not object to the exhibit’s admission
on this ground at trial; he raised it for the first time in his new
trial motion.10 Peterson’s failure to object to the posts as hearsay
at trial also forfeits that argument on appeal. (Evid. Code, § 353,
subd. (a); see People v. Demetrulias (2006) 39 Cal.4th 1, 20–21
[judgment may be reversed because of erroneous admission of
evidence only if an objection to the evidence was timely made and
so stated as to make clear the specific ground of the objection].)


10     Peterson filed a declaration of Joshua Farias with his
motion. Farias declared he was “the manager of [Peterson’s]
Instagram account,” and he was the person who “replied
‘@spliffkaay_ that’s not true.’ ” Farias declared, “I never
consulted with Mr. Daystar Peterson in posting that comment on
September 25, 2020.” In ruling on Peterson’s new trial motion,
the trial court stated the Farias declaration was not “newly
discovered evidence.” The court continued, “I think that’s
something that could have been discovered through reasonable
means.”




                                29
       Finally, any error in admitting the Instagram post was
harmless. As the trial court noted, the Instagram post “was an
extremely minor issue in the case.” The case turned on Pete’s
testimony, Peterson’s admissions to Harris when he called her
from jail, and other similar evidence. Detective Eberhardt
testified he was not saying that Peterson had posted the
statement “that’s not true,” and he admitted he had no
knowledge of who controlled Peterson’s Instagram account.
The trial court properly instructed the jury on count 1 and
the firearm enhancement; any error in the instructions
on count 2 was harmless
       Peterson contends the trial court “reversibly erred” in its
instructions to the jury on counts 1 and 2. Count 1 alleged
assault with a semiautomatic firearm in violation of section 245,
subdivision (b), and count 2 alleged having a concealed
unregistered firearm in a vehicle in violation of section 25400,
subdivision (a)(1). In count 1, the People also alleged Peterson
personally used a firearm in the commission of the offense,
within the meaning of section 12022.5, subdivisions (a) and (d).
At the conference on jury instructions, the trial court told counsel
it would give CALCRIM No. 250, Union of Act and Intent:
General Intent. The court continued, “So all three crimes here
are general intent crimes.” Defense counsel did not disagree
or object.
       Peterson’s argument on appeal is somewhat difficult to
understand. He asserts assault with a semiautomatic firearm
“is a general intent crime; yet, the enhancement attached to
this count through Penal Code section 12022.5 requires specific
intent.” Peterson does not cite any case in support of this
contention. No case has held that assault with a semiautomatic




                                 30
firearm or a personal use of a firearm enhancement requires
specific intent.
          To prove assault with a firearm, the prosecution must
prove (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; and (4) when the defendant acted, he had the present
ability to apply force with a firearm to a person. (CALCRIM No.
875.)
          Thus, this instruction requires a defendant to have acted
willfully and with awareness of facts that a reasonable person
would recognize would result in the application of force to a
person. The jury instruction defines “willfully”: “Someone
commits an act willfully when he . . . does it willingly or on
purpose”—as opposed, for example, to accidentally. (CALCRIM
No. 875.) The word “ ‘ “willfully” ’ ” “ ‘implies simply a purpose or
willingness to commit the act . . . . It does not require any intent
to violate law, to injure another, or to acquire any advantage.’ ”
(1 Witkin, Cal. Criminal Law (5th ed. 2025) Elements, § 8(1)
(hereafter Witkin), quoting Pen. Code, § 7(1). See People v.
Atkins (2001) 25 Cal.4th 76, 85 [“ ‘The word “willfully,” when
applied to the intent with which an act is done . . . implies simply
a purpose or willingness to commit the act . . . .’ ” [¶] “ ‘Willfully
. . . “ ‘implies that the person knows what he is doing, intends to
do what he is doing and is a free agent.’ ” ’ ”].) Similarly, the jury
instruction for the personal firearm use enhancement requires




                                 31
only that the defendant “personally used a firearm during the
commission” of the offense. (CALCRIM No. 3146.)
       Peterson’s contention regarding count 2 requires more
discussion. Peterson asserts, “Likewise, count 2 is a specific
intent crime and required” instruction with CALCRIM No. 252.
That instruction is entitled, “Union of Act and Intent: General
and Specific Intent Together.” (CALCRIM No. 252.) To prove
the offense of carrying a concealed firearm within a vehicle,
the prosecution must prove (1) The defendant carried within
a vehicle a firearm capable of being concealed on the person;
(2) The defendant knew the firearm was in the vehicle; (3) The
firearm was substantially concealed within the vehicle; and
(4) The vehicle was under the defendant’s control or direction.
(CALCRIM No. 2521.)
       Knowledge is not the same thing as specific intent. (See
1 Witkin, supra, Elements, § 9(1) [“knowingly” merely requires
proof of knowledge of facts that constitute the offense]; People
v. Calban (1976) 65 Cal.App.3d 578, 584 [“A requirement of
knowledge is not a requirement that the act be done with any
specific intent. [Citations.] The word ‘knowing’ as used in a
criminal statute imports only an awareness of the facts which
bring the proscribed act within the terms of the statute.”].)
       However, knowledge is a required mental state for a
violation of the statute. For the first time in his reply brief,
Peterson cites the Bench Note to CALCRIM No. 250. The note
states, “[T]his instruction must not be used if the crime requires
a specific mental state, such as knowledge . . ., even if the crime
is classified as a general intent offense. . . . [¶] If the case involves
both offenses requiring a specific intent or mental state and
offenses that do not, the court may give CALCRIM No. 252,




                                   32
Union of Act and Intent: General and Specific Intent Together,
in place of this instruction.” (CALCRIM No. 250, Bench Notes,
Instructional Duty.)
       We review the adequacy of an instruction independently.
(People v. Cole (2004) 33 Cal.4th 1158, 1210 (Cole); People v.
Cooksey (2002) 95 Cal.App.4th 1407, 1411.) From the bench note
to CALCRIM No. 250, it appears the trial court should have given
the jury CALCRIM No. 252, listing assault with a semiautomatic
firearm and the firearm enhancement (as well as count 3,
discharging a firearm with gross negligence) as requiring only
general criminal intent, but listing carrying a concealed firearm
within a vehicle as requiring the specific mental state of
knowledge.
       However, on this record, the court’s failure to do so was
harmless. “ ‘In reviewing a claim of instructional error, the court
must consider whether there is a reasonable likelihood that the
trial court’s instructions caused the jury to misapply the law in
violation of the Constitution.’ ” (People v. Pettigrew (2021) 62
Cal.App.5th 477, 497.) We review the challenged instruction
in the context of the instructions as a whole and the trial court
record to determine whether there is a reasonable likelihood the
jury applied the instruction in an impermissible manner. (Ibid.)
“Instructional error requires reversal of the judgment only if
it resulted in a miscarriage of justice, meaning it is reasonably
probable the defendant would have fared better in the absence
of the error.” (Ibid.; Cal. Const., art. VI, § 13; People v. Watson
(1956) 46 Cal.2d 818, 836.)
       The trial court did instruct the jury that the prosecution
was required to prove not only that Peterson committed the
prohibited act but that he did so “with wrongful intent,” and that




                                33
he “knew the firearm was in the vehicle.” (CALCRIM Nos. 250,
2521, element 2.) In closing, the prosecutor argued Peterson
“knew it [the gun] was there. Of course, he did. He grabbed it.
He shot Megan with it.” Defense counsel told the jurors, “My
client didn’t even know the gun was there.” Counsel said
Peterson “jumps in the seat after the girls are in the car.”
Counsel continued, “They’re trying to say my client knows the
gun was there and he touched the gun and he put the gun there.”
Why, then, counsel asked was his DNA not found on the gun.
       In short, the jurors were well aware that the prosecution
had to prove Peterson knew the gun was in the vehicle.
“ ‘[J]urors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.’ ” (People
v. Covarrubias (2016) 1 Cal.5th 838, 926.) Reversal on count 2
is not required.
Any ambiguity in CALCRIM No. 3160 is harmless in
this case
       On the allegations that, in committing the offenses in
counts 1 and 3, Peterson personally inflicted great bodily injury
on Pete, the trial court instructed the jury with CALCRIM
No. 3160. The instruction states, “Great bodily injury means
significant or substantial physical injury. It is an injury that is
greater than minor or moderate harm.” (CALCRIM No. 3160.)
Peterson cites a bench note following the instruction that
cautions courts, “Th[is] . . . sentence of the great bodily injury
definition could result in error if the prosecution improperly
argues great bodily injury may be shown by greater than minor
injury alone.” (CALCRIM No. 3160, Bench Notes.) The note cites
People v. Medellin (2020) 45 Cal.App.5th 519, 533–535 [definition
reasonably susceptible to prosecutor’s erroneous argument




                                34
that the injury need only be greater than minor] and People v.
Quinonez (2020) 46 Cal.App.5th 457, 466 [upholding instruction
containing great bodily injury definition as written].
       Any ambiguity in this definition is harmless in this case
because substantial evidence established, beyond a reasonable
doubt, that the injuries Peterson inflicted on Pete were more than
moderate harm. Indeed, they are more properly characterized
as significant or substantial harm. Pete had surgery to remove
bullet fragments in both feet. She had a lot of pain and “couldn’t
walk for a while.” Pete had physical therapy for “a few months.”
       The orthopedic surgeon who operated on Pete’s feet
testified at trial and the jury saw x-rays and a report of the
operation. The surgeon told the jury Pete was placed under
general anesthesia for the surgery. The surgeon described
in detail the steps a team of three surgeons took to remove
“questionable tissue” and the metal fragments, flush the areas,
and close the wounds with sutures. Pete was admitted to the
hospital after the surgery.
       This testimony was more than sufficient to support the
jury’s finding that Peterson personally inflicted great bodily
injury on Pete. (See People v. Escobar (1992) 3 Cal.4th 740, 749–
750 [section 12022.7 does not require victim to have suffered
permanent, prolonged, or protracted disfigurement, impairment,
or loss of bodily function; abrasions and bruises to victim’s legs,
knees, and elbows, neck injury, and soreness in vaginal area that
significantly impaired victim’s ability to walk were sufficient];
People v. Wolcott (1983) 34 Cal.3d 92, 107–108 [victim was shot
in leg; some bullet fragments lodged in victim’s arms; little blood
lost; no sutures used; victim treated at hospital, then released
and went to work the next day]; People v. Elder (2014) 227




                                35
Cal.App.4th 411, 413, 415 [victim’s finger got “ ‘pulled’ ” into
defendant’s hoodie and “ ‘snapped,’ ” dislocating finger].)11
The prosecutors’ statements in closing argument do
not require reversal
       Peterson contends the prosecution “engaged in
prosecutorial misconduct in making improper comments during
closing argument.” According to Peterson, these “improper
comments” consisted of “improper appeals to emotion and
sympathy for the victim,” arguing facts not in evidence, and
“denigrat[ing] defense counsel.”
       Peterson implicitly acknowledges trial counsel did not
object to any of the statements of which Peterson now complains.
“[T]he general rule is that [a] defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant made an assignment
of misconduct and requested that the jury be admonished to
disregard the impropriety.” (People v. Choyce (2025) 18 Cal.5th
86, 113 (Choyce), citing People v. Hill (1998) 17 Cal.4th 800, 820.)
Peterson cites a case for the proposition that this forfeiture rule
does not apply “if an admonition would not have cured the harm.”
But he does not explain how admonitions here would not have
cured any harm from the prosecutors’ statements.
       In any event, Peterson’s claims of prosecutorial misconduct
fail on the merits. “ ‘A prosecutor’s conduct violates the
Fourteenth Amendment to the federal Constitution when it
infects the trial with such unfairness as to make the conviction
a denial of due process.’ ” (Choyce, supra, 18 Cal.5th at p. 114,

11    In any event, as noted, the court dismissed the great bodily
injury enhancement at the time of sentencing.




                                 36
quoting People v. Morales (2001) 25 Cal.4th 34, 44.) “In other
words, the misconduct or error must be ‘of sufficient significance
to result in the denial of the defendant’s right to a fair trial.’ ”
(Choyce, at p. 114, quoting Cole, supra, 33 Cal.4th at p. 1202.)
“[E]ven if the misconduct is not so egregious as to render the trial
fundamentally unfair, reversal is required if the prosecutor used
‘deceptive or reprehensible methods to attempt to persuade either
the court or the jury’ that are reasonably likely to have affected
the outcome of the proceeding.” (Choyce, at pp. 114–115, quoting
People v. Cash (2002) 28 Cal.4th 703, 733.)
       As we have explained, the prosecution’s questioning of Pete
about why she initially lied to medical personnel and police, the
criticism directed at her after she accused Peterson, and her
attitude about the case and about testifying was not improper.
Reference to that testimony in closing argument was not
improper for the same reason.
       As for the prosecutor’s reference in his opening statement
to what he expected Justin Edison to say if he testified, it is not
uncommon for counsel—on both sides—to tell the jury that a
particular witness will testify, only to be unable ultimately
to procure that witness’s appearance. With respect to the
prosecutor’s suggestion that Peterson tried to bribe Harris, and
his question “Where is Justin, right?”, Pete testified Peterson
said, “Don’t tell on me,” and “I’ll give y’all a million dollars if you
don’t tell on me” immediately after the shooting. Harris said the
same thing in her September 2022 interview with prosecutors
(though by the time of trial three months later she equivocated
about why Peterson offered her the money). Harris also told
prosecutors she’d met with Peterson outside a hotel a day or two
after the shooting, and he asked her if she needed a job, if she




                                  37
wanted to work with him. He also mentioned “invest[ing] into
a business.”
      Prosecutors may argue inferences from the evidence.
(1 Witkin, supra, Criminal Trial, §§ 788(1), 807(1) [citing cases].)
“Prosecutors are granted wide latitude during arguments.”
(People v. Henderson (2020) 46 Cal.App.5th 533, 547.) When
attacking the prosecutor’s remarks to the jury, the defendant
must show that, in the context of the whole argument and the
instructions, there was a reasonable likelihood the jury
understood or applied the complained-of comments in an
improper or erroneous manner. (Id. at p. 548.) Peterson has
not made that showing here.
      Finally, regarding Peterson’s assertion that “[p]rosecutors
denigrated [defense] counsel repeatedly throughout closing
argument,” this trial was vigorously litigated and hard fought.
Both sides accused the other of misleading the jury. Defense
counsel told the jury the prosecution’s case was “full of holes” and
the prosecutors had “the audacity” to ask the jurors to speculate.
Counsel asked why the prosecution hadn’t called Sean Kelly as a
witness, or the investigating officer, Detective Stogner. Counsel
queried why the prosecutor had objected to Kelly’s testimony:
“[B]ecause they didn’t want you to know the truth?” Counsel
asked, “Where is Jauquan [Smith]? Why didn’t they call him?”12


12    The record reflects the defense considered calling Smith as
a witness but ultimately decided not to. At the outset of trial,
defense counsel told the court the defense was “in the process of
serving” Smith. Later, toward the end of trial, in a December 21,
2022, in camera proceeding, defense counsel told the court he had
learned the day before that Smith may have been served “and
may have been coming yesterday.” Counsel continued,




                                38
Referring to himself, defense counsel asked the jury, “[W]ho told
you the truth from the first day when I got up here and gave my
opening statement?” Counsel said, “From the opening statement


                “We had a lengthy discussion when I was
            informed of this over lunch with my client, my
            associate, and my investigator. [¶] We came to the
            conclusion that we’re not gonna call him, because,
            obviously, his testimony is gonna be putting the
            gun in the hands of Kelsey. And that’s what he
            told all of us when we just did an interview
            upstairs. [¶] At this point my position was that the
            jury believes our theory. I think Sean Kelly
            already put the gun in Kelsey’s hand. And if
            they’re gonna believe that he took the gun from
            him and you started to shoot it yourself, to me it’s
            kind of an absurd argument. Adding another
            person to say who has some connections to you as
            a security or a friend . . . isn’t gonna do anything.
            [¶] So we decided we’re not gonna call him this
            morning. . . . [¶] . . . [¶] I told the prosecution we
            won’t call him. [¶] [I’]ll just move forward into
            argument. [¶] I’m ready. They’re ready. Let’s just
            argue and instruct and be done with this.”
       Defense counsel explained further, “And the reason for
that, Your Honor, is obviously with the holidays coming, my fear
is first I’ll lose this witness. This witness made it very clear he’s
not gonna stay here . . . . [¶] Secondly, [and] more importantly,
I think we’ll have a mistrial and we’re gonna lose jurors.” The
court asked, “And you talked to your client or do you need to
speak further to him?” Counsel replied, “I’ve spoken to my
client . . . . [¶] . . . [¶] [If the trial continues another seven days]
[w]e’ll have a mistrial. My client definitely doesn’t want that. [¶]
My client wants closure on this. He has family flying back out to
Canada. And he wants to finish this.”




                                   39
to every evidence [sic] they’ve introduced, ladies and gentlemen,
they’ve tried to mislead you.”
       In sum, none of the prosecutors’ statements constituted
“ ‘deceptive or reprehensible methods’ ” that were “reasonably
likely to have affected the outcome of the proceeding.” (Choyce,
supra, 18 Cal.5th at pp. 114–115.)
The record does not support Peterson’s contention that
prosecutorial misconduct interfered with his “right to
conflict-free counsel”
       Peterson retained Shawn Chapman Holley to represent
him in this case. Holley represented Peterson through the
preliminary hearing as well as the extensive pretrial proceedings.
According to Holley, with trial expected to begin in late
November and December of 2022, Peterson wanted “to add
another lawyer to the team”—George Mgdesyan. In a September
6, 2022 email, Holley explained to Bryan Gott—who appears to
have been Peterson’s business manager—“Tory has known him
for a long time and trusts him.”
       Holley was engaged in an arbitration out of state that
began in May 2022. It did not conclude until December 16, 2022
—nearly two weeks after trial commenced. In a letter dated
January 10, 2023, to the trial court, Holley referred to this other
engagement and explained, “Mr. Peterson understood and agreed
that George Mgdesyan would represent him at trial and that I
would not.”
       An email Peterson attached to one of his pleadings in
connection with his motion for a new trial reflects a second
reason Holley did not represent Peterson at trial. In the email,
dated November 21, 2022, to Peterson, with a copy to Mgdesyan,
Holley stated she was “not comfortable” advancing a defense




                                40
theory that it was Kelsey Harris—and not Peterson—who shot
Pete. In Holley’s view, it was not “a viable strategy.” Holley
recommended that Peterson “discuss with [Mgdesyan] his
[Mgdesyan’s] willingness and ability to move forward with that
defense.”
      The record—again, an email Peterson filed in the trial
court—reflects a third issue. On December 18, 2022, Holley
emailed Peterson to “let [him] know” that she was going to file
a motion to withdraw as one of his attorneys of record. Holley
stated evidence had been “elicited” during Harris’s testimony
that Holley “was somehow involved in facilitating an
arrangement between [Peterson] and [Harris] whereby [Peterson]
would finance [Harris’s] business (or something like that) in
order to curry favor with her, thereby aligning your and her
interests as far as the case was concerned.”
      Holley continued, “You and I both know that this never
happened.” Holley added she did not know whether Peterson
actually made such a statement to Harris or whether Harris
“made this up herself.” Holley stated, “All I DO know is that this
did not happen, nor would it EVER happen.”
      Holley explained, “In any event, the fact that these false
allegations have been made about me—and that they are now
evidence in the case—makes it a conflict (as an ethical/legal
matter) for me to continue to represent you and, as a result, I am
obligated to withdraw as your attorney.”
      Without any citation to the record, Peterson asserts,
“[D]espite [prosecutors’] plain acknowledgment that Holley was
not involved in the alleged bribery of Harris months earlier,
prosecutors opted to wait until midtrial to raise the exact same
allegations, relying on nothing more than Harris’[s] same




                               41
inconsistent statements dating back to September 2022.”
Peterson claims these allegations “le[ft] Holley with no choice
but to disengage fully lest her presence harm her client.”
       Peterson’s wholesale failure to support any of these
assertions with citations to the record is telling. The letter and
emails Peterson himself attached to his new trial motion show
the reasons Holley did not try the case and ultimately withdrew:
(1) she was engaged in a lengthy seven-month arbitration, (2) she
was “not comfortable” with a defense blaming Harris for the
shooting, and (3) after Harris’s statements were introduced at
trial, she concluded she had a conflict. Nothing in the record
supports Peterson’s allegation that prosecutors “opted to lull
Holley into a false sense of security by deceptively assuring her
they did not believe her to be involved.”
The trial court did not err in imposing the midterm
      Peterson contends the trial court “reversibly erred in
declining to impose the lowest possible term.” Peterson’s sole
claim of error on this point is that the court found true the
aggravating factor that the victim was particularly vulnerable
within the meaning of rule 4.421(a)(3).13

13     There was some discussion in the trial court about whether
Peterson qualified for the low term under section 1170,
subdivision (b)(6). That section provides, “[U]nless the court
finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be
contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] (A) The
person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation,
or sexual violence. [¶] (B) The person is a youth or was a youth




                                42
       The trial court found four factors in aggravation: (1) that
Peterson used a weapon in the commission of the crime14 (rule
4.421(a)(2)); (2) that the victim was particularly vulnerable (rule
4.421(a)(3)); (3) Peterson’s conduct toward the victim after the
shooting, between the time of the crime and the trial nearly two-
and-one half years later; and (4) the fact that the court could
have sentenced Peterson to consecutive time on count 2, having
a concealed, unregistered firearm in a vehicle (rule 4.421(a)(7)).
       The court found three factors in mitigation: (1) Peterson
had no prior record or an insignificant record of criminal conduct
(rule 4.423(b)(1)); (2) Peterson had “actively participated in



as defined under subdivision (b) of Section 1016.7 at the time of
the commission of the offense. [¶] (C) Prior to the instant offense,
or at the time of the commission of the offense, the person is or
was a victim of intimate partner violence or human trafficking.”
(§ 1170, subd. (b)(6).) A forensic psychologist testified at the
sentencing hearing that, after Peterson’s mother died when he
was 11, he lived in a “very dangerous neighborhood.” The trial
court found, in essence, that even if this could be considered
“childhood trauma” as defined in the statute, there was no nexus
between that trauma and the crime in this case. Peterson has
not raised the issue of his eligibility under section 1170,
subdivision (b)(6) on appeal.
14    The court noted “the jury found that to be true.” The court
continued, “I will note, as [the] defense points out in their
sentencing memorandum, the court is limited in terms of how
the court can use that if the court were using it to select the
appropriate term; but, I think it’s fairly clear that that
aggravating factor was still proven. Does the defense wish to
address that?” Defense counsel T. Edward Welbourn replied,
“No, Your Honor. Withdrawn.”




                                 43
charitable or philanthropic causes”; and (3) Peterson had a “low
likelihood of re-offending in a violent manner.”
       The court noted the “balancing” of the aggravating and
mitigating factors was “not a mathematical calculation,” and
“[s]ome of the factors [were] . . . much more important to the
court’s decision than others.”
       The court did not “plac[e] great weight on [the use-of-a-
firearm factor]”, as it was “inherent in count[s] 1 and 3.”
       With respect to the aggravating factor that the victim was
“particularly vulnerable,” the court stated that term “includes
being defen[s]eless, unguarded, unprotected or otherwise
susceptible to the defendant’s criminal act to a special or unusual
degree.” The court continued, “In determining whether someone
was particularly vulnerable, you have to consider all of the
circumstances surrounding the commission of the crime including
the characteristics of the victim and the manner and setting in
which the crime was committed. And it is not enough for the
victim to be in the wrong place at the wrong time.”
       The court noted defense counsel had argued Pete was not
“young or small in stature or elderly or somehow [otherwise]
limited.” The prosecution, the court said, argued Pete was “clad
in a bathing suit with her back turned,” she was “unarmed at
that time,” and she had “no idea that this would happen.” Also,
she was “in an unfamiliar area.” In addition, it was “dark” and
“early in the morning with nowhere to escape to.”
       After hearing further argument from both the defense and
the prosecution, the court concluded the prosecution had “proven
beyond a reasonable doubt that the victim was vulnerable” within
the meaning of the rule.




                                44
       The court viewed Peterson’s “post-incident conduct” as
“a major factor in aggravation in this case.”
       With respect to the mitigating factors, the court found
Peterson’s participation in charitable causes not to be “a very
significant factor.” The court said the fact Peterson had “been an
asset to the community and ha[d] helped people out” was “not a
recognized factor in mitigation” but was “important” nonetheless.
Similarly, the court stated Peterson’s low risk of violent
recidivism was “not a major factor, but a factor.”
       The only one of these findings Peterson challenges on
appeal is the “vulnerable victim” finding. Referring to Harris’s
statement to prosecutors that “she saw Peterson reach towards
the center console after threatening to shoot her,” Peterson
contends Pete should have recognized “there were indeed signs
that an armed individual may be in the vehicle” and “thus had
the ability to run or duck once she saw a gun being pointed
at her.”
       We find no error. Substantial evidence supports the trial
court’s true finding on that aggravating factor. Moreover, even
were that not the case, no resentencing would be required. The
middle term was the presumptive term. (People v. Flores (2022)
73 Cal.App.5th 1032, 1038.) The court was not required to rely
on any aggravating factors in selecting the middle term, and
Peterson does not dispute the presence of three of the four
aggravating factors the court identified. (See People v. Yim
(2007) 152 Cal.App.4th 366, 369 [“single aggravating factor may
support a sentencing choice”].) All the trial court was required to
do in selecting the middle term was to state its reasons. (People
v. Sarmiento-Zuniga (2025) 108 Cal.App.5th 1216, 1226.) The
court did that here.




                                45
No ineffective assistance of counsel or cumulative error
       As we find no ineffective assistance of counsel or prejudicial
trial court error, we also find no cumulative error.
                          DISPOSITION
      We affirm Daystar Peterson’s conviction.

   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                      EGERTON, J.

We concur:




             EDMON, P. J.




             ADAMS, J.




                                 46