A155138
Cal. Ct. App.Feb 26, 2021Background:
- Defendant Todd Lamont Gillard Jr. was tried for multiple offenses arising from a shooting: among charges were street terrorism, shooting at an occupied vehicle, being a felon in possession of a firearm, and resisting arrest.
- Jury convicted on counts for street terrorism, shooting at an occupied vehicle, felon in possession, and resisting arrest; gang and firearm-use allegations were found not true; court found two prior-felony/prior serious-felony allegations true.
- Victim identified defendant as the front passenger in a red Camaro and said shots were fired from the Camaro; victim was wounded and told officers defendant shot him. Defendant testified he was in the car but denied encouraging or firing shots.
- At trial defense argued presence alone does not prove aiding/abetting; prosecutor’s rebuttal included pointed attacks on defendant’s credibility and hypothetical points about self-defense instructions (objections sustained).
- Defendant was sentenced to 22 years 8 months (upper term for shooting, consecutive terms, sentence doubled under recidivist statutes) plus a consecutive 5-year prior serious-felony enhancement (§ 667(a)(1)) and a 1-year enhancement (§ 667.5(b)).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct (closing argument; alleged burden-shift) | Forfeiture: no timely objection on that ground; even if misconduct occurred, jury instructions and strong evidence cured prejudice | Prosecutor improperly shifted burden and argued defense must prove or request self-defense instruction; comments attacked credibility unfairly | Issue forfeited. Court considered IAC claim and rejected it for lack of prejudice; convictions affirmed |
| One-year enhancement (§ 667.5(b)) | AG concedes enhancement should be stricken | Enhancement should be stricken | Court ordered the one-year § 667.5(b) enhancement stricken |
| Five-year prior serious-felony enhancement (§ 667(a)(1)) under SB 1393 (discretion to strike) | Remand unnecessary: trial court comments and sentencing posture show it would not have struck enhancement | Remand required so trial court can exercise new discretion under SB 1393 | Remanded for resentencing limited to consideration whether to strike the § 667(a)(1) five-year enhancement |
| Pitchess discovery ruling (in-camera review of officer personnel files) | AG does not oppose independent appellate review and defends trial court procedures | Trial court abused discretion by withholding records responsive to Pitchess motion | Independent review of sealed transcript: trial court complied with Pitchess procedure and did not err |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective assistance standard)
- Pitchess v. Superior Court, 11 Cal.3d 531 (1974) (defendant's right to compel discovery of officer personnel records under specified showing)
- People v. Mooc, 26 Cal.4th 1216 (2001) (Pitchess procedural requirements; trial court must make record of documents examined)
- People v. Fuiava, 53 Cal.4th 622 (2012) (appellate standard for Pitchess in-camera review)
- People v. Pearson, 56 Cal.4th 393 (2013) (forfeiture rule for prosecutorial misconduct claims)
- People v. Brown, 147 Cal.App.4th 1213 (2007) (remand required where trial court sentenced under assumption it lacked discretion)
- People v. Jones, 32 Cal.App.5th 267 (2019) (remand unnecessary where record shows trial court would not have exercised discretion to strike enhancement)
- People v. Ellis, 43 Cal.App.5th 925 (2019) (application of SB 1393 discretion to strike prior serious-felony enhancements)