People v. Gaines CA1/4

Opinion

Filed 9/23/26 P. v. Gaines CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A173003 v. JACOBI GAINES, (Alameda County Super. Ct. No. 20CR000975) Defendant and Appellant.

Jacobi Gaines appeals a judgment convicting him of, among other offenses, first degree murder, carjacking, and robbery, and sentencing him to a total term of 64 years-and-four-months-to-life in prison. He contends that (1) the court erred under Evidence Code section 352 by admitting unduly prejudicial videos of him intentionally defiling the grave of a rival gang member; and (2) his trial counsel provided ineffective assistance by failing to object to evidence of an uncharged theft offense that bore no similarity to the charged offenses. He also requests that the matter be remanded to allow for correction of several sentencing errors. We find no trial error but remand for resentencing. BACKGROUND The prosecution’s case against Gaines alleged that he committed a series of thefts and robberies in December of 2019 and January of 2020, followed by the homicide of Hassan Humphries in Oakland on January 13, 1 2020. Gaines was charged by amended information with the following offenses alleged to have been committed on January 13, 2020: murder (Pen. Code, 1 § 187(a)); illegal firearm possession by an adjudicated ward (§ 29820(b)); carrying a loaded firearm in public (§ 25850(a)); and illegal possession of a firearm by a probationer (§ 29815). Gaines was further charged with unlawfully taking a vehicle on January 8, 2020 (§ 10851(a)); carjacking (§ 215(a)) and assault with a deadly weapon (§ 245(a)(1)) on December 2, 2019; second degree robbery on January 8, 2020 (§ 211); and unlawful taking of a vehicle on December 3, 2019 (§ 10851(a)). The information also alleged sentence enhancements for personal use of a firearm (§ 12022.5(a)) on the murder count, infliction of great bodily injury (§ 12022.7(a)) and use of a deadly weapon (a vehicle) (§ 12022(b)(1)) on the carjacking count, and infliction of great bodily injury (§ 12022.7(a)) on the assault count. At trial, the following evidence was presented regarding the charged offenses that occurred prior to the murder. On December 2, 2019, Gaines stole a Mercedes Benz automobile from its owner after responding to an online advertisement and posing as a buyer. The owner was injured when he tried to stop Gaines from driving away with the car. A second victim testified that on December 3, 2019, Gaines stole his motorcycle after responding to an online advertisement and posing as a buyer. A third victim testified that on January 8, 2020, Gaines stole his grey Audi A4 Quattro automobile after responding to an online advertisement and posing as a buyer. A fourth victim testified that, also on January 8, 2020, Gaines stole two wristwatches from her after responding to an online advertisement and posing as a buyer.

1 Undesignated statutory references are to the Penal Code.

2 The following evidence was presented regarding uncharged conduct that occurred prior to the murder. On November 27, 2019, a man stole a woman’s 2000 Mercedes Model S 430 after responding to an online advertisement and posing as a buyer. A police investigator subpoenaed the online ad platform and determined that the IP addresses associated with the account used by the thief were registered to defendant’s mother. On December 31, 2019, a man stole a woman’s purse from the backseat of her car in a Costco parking lot as she loaded groceries into her trunk. Her stolen driver license was recovered in Gaines’s possession after his arrest. With respect to the murder and other offenses that occurred on January 13, 2020, a witness testified that he was sitting in his pickup truck on the 1400 block of 48th Avenue in Oakland when he heard a gunshot, looked up, saw a man fall and another man wearing a “two-toned,” red and black jacket flee in a grey Audi. The man who was shot, later identified as Hassan Humphries, died from several gunshot wounds to his head and chest. Surveillance videos collected from the crime scene showed a silver or grey Audi A4 with tinted windows drive onto 48th Avenue from International Boulevard shortly before the homicide took place. The video then showed a person “wearing a red, two-toned jacket” walking toward the parked Audi as another person lay on the sidewalk. A police detective identified the car in the video as a “typhoon gray” 2012 Audi A4, with “subtly tinted windows” and a black front grille, and the owner of the Audi stolen on January 8 told the officer he believed it was his car. Gaines was arrested on January 16 at an apartment in Oakland. Officers recovered a Springfield Armory XD9 semiautomatic pistol during his arrest. A criminalist testified that ballistics tests indicated that cartridge 3 casings found at the homicide scene were fired from the handgun officers recovered during Gaines’s arrest. Police officers also recovered a “red, kind of two-toned jacket” in the bedroom of the apartment. On the same day Gaines was arrested, the police conducted a search of his mother’s house and seized several items that appeared to be associated with Gaines and that officers testified contained references to Oakland’s ENT gang, including terms associated with the gang, such as “300 Boys,” “Stubby,” “Ghost town,” and “Money Team.” From several phones that were seized that day, as well as a phone number provided by the owner of the Audi, the police obtained call detail records and evidence from Gaines’s social media records, comprised of postings to an Instagram account attributed to Gaines. Call detail records from a mobile phone used by Gaines showed that the phone was near the area of the homicide around the time it took place. The following evidence from Gaines’s Instagram records was admitted at trial. In September of 2019, Gaines posted a video containing the statements “gang members only” and a number of hand signals. On September 25, 2019, Gaines posted a photo, referring to his association with the ENT gang, that stated “TOO MUCH GOING ON WATCH THE SNAKES IN THE CIRCLE I’M 300 TILL THEY PUT MY DICK IN THE DIRT.” On December 24, 2019, Gaines posted four videos that show him walking through a cemetery searching for a grave, then urinating on the grave and kicking over flowers, candles, and other memorial items left by mourners. The engraving on the headstone shows that the person had just turned seventeen when he died, approximately two and a half years before 4 Gaines posted the video. On the video in which he urinates on the grave, Gaines superimposed the text, “Happy Holidays.” On December 25, 2019, in an Instagram post, Gaines wrote, “Nobody wasn’t saying nun about disrespectful wen them niggas made that song so fuck anybody who got a problem about my nigga pissin!! You’ll just don’t like that shit yeah we disrespectfull to don’t do it if you’ll dont want niggas doing it on bro!!” On December 26, 2019, Gaines received a warning text on Instagram that “[t]hem case niggas looking for u.” In a post the same day, Gaines wrote, “They Talking Bout How They Gone Kill Me Like Ima Let Niggas,” and “Blood said it best.” On December 29, 2019, Gaines messaged someone on Instagram that “niggas posting old ass videos of me getting jumped for clout.” In an Instagram post that day, Gaines wrote, “You niggas hella funny and scary it take 2 niggas to try to whoop me and I still ain’t go to the ground stop putting dirt on my name and tryna get clout off this old ass video take a trip let’s go on a field trip.” On January 12, 2020, Gaines posted a video on his Instagram account that showed him “holding a black handgun” and pointing it at the camera. On the day of the murder, Gaines posted a video on Instagram in which he was wearing a “red . . . two-toned jacket, with [a] black front.” On January 15, Gaines posted an emoji with the “universal symbol for being silent” (i.e., index finger over mouth) with “a rap song playing in the background.” The song’s lyrics, as paraphrased by the police detective, included “Pistol pops off. I hit him first in the chest and then in the head.” The detective noted that the victim had been shot in the chest and the head.

5 On the same day, Gaines wrote in an Instagram post: “Kill or be killed!! Pick in choose a fence before you play the other side.” A police detective testified that Humphries was a member of the Case gang and that the Case gang is a rival of the ENT gang. He testified that, around the time of the homicide, the rivalry between ENT and Case had escalated into “an ongoing feud” involving “a bunch of shootings” and “back and forth between the two gangs.” Finally, he testified that another police officer had told him that the grave Gaines desecrated in the videos belonged to a deceased member of the Case gang. The jury found Gaines guilty as charged except for the final count of unlawful taking of a vehicle on December 3, 2019, which was dismissed on the prosecutor’s motion after the jury failed to reach a verdict. The trial court sentenced Gaines to an aggregate term of 64 years-and-four-months-to-life in state prison, consisting of an indeterminate term of 38 years-to-life for murder and a consecutive determinate term of 26 years and four months on the remaining offenses. DISCUSSION I. Gaines contends that the trial court abused its discretion under Evidence Code section 352, and violated his due process right to a fair trial, by admitting the series of videos that he posted on his Instagram account of him in the cemetery. Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review a challenge to a trial court’s decision to 6 admit or exclude evidence under section 352 for abuse of discretion. (People v. Branch (2001) 91 Cal.App.4th 274, 281–282. Gaines acknowledges that the videos had some relevance to motive because the grave was that of a rival gang member. He argues, however, that “the videos were cumulative to a plethora of other gang-related evidence supporting this theory of motive” and “were significantly more inflammatory than the other gang-related evidence and created undue prejudice that had nothing to do with gangs: Gaines’ intentional defilement of a human grave, including the filmed act of urinating on the grave, violated universally-held cultural and religious taboos that reflect our society’s veneration of memorials, respect for the dead, empathy for survivors mourning the loss of a loved one, and the sacrosanct status ascribed to human remains.” Accordingly, he argues that “the admission of the grave desecration videos created an intolerable risk of inflaming the jurors’ passions and causing one or more juror to be so offended and viscerally repelled that they would be incapable of deciding the case in a dispassionate manner.” In arguing that the cemetery videos are cumulative of other motive evidence, Gaines cites the evidence that shows that he “was a member of the ENT gang, while the victim belonged to the Case gang; the ENT and Case were generally known to be rival gangs, and around the time of the homicide their rivalry had recently escalated into ‘an ongoing feud’ involving ‘a bunch of shootings’ and ‘back and forth between the two gangs’; Gaines believed Case gang members were looking for him in order to kill him; Gaines was angry at recently having been ‘jumped’ and beaten by Case gang members; and Gaines had been arguing and exchanging death threats with members of the Case gang for several weeks before the homicide.”

7 The Attorney General disagrees that the cemetery videos are cumulative of this other evidence and suggests that Gaines’s argument undervalues its relevance. The Attorney General argues that the videos are not just evidence of a general gang motive for the killing, but that they are the pivotal moment that “precipitated the events that eventually resulted in the murder of victim Humphries.” The Attorney General writes: “As the prosecutor explained during closing argument, ‘urinating on the grave sets off a backlash. And from that point, [appellant is] so focused on it and vigilant for any perceived threats that you can see that it takes up the majority of the posts of his Instagram. He is focused on this.’ . . . In this context, the murder of victim Humphries ‘was an execution of a rival. This was the defendant’s punishment because of all the back and forth, because of his own—whatever—after peeing on his rival’s grave and just being done with the sukkas.’ . . . In short, the video evidence itself prompted the Case gang’s sudden outburst of hostility toward appellant, who in turn sought revenge by killing victim Humphries.” We disagree with Gaines’s characterization of the Attorney General’s argument as “supposition at best.” In an Instagram post made the day after the cemetery video, Gaines wrote: “Nobody wasn’t saying nun about disrespectful wen them niggas made that song so fuck anybody who got a problem about my nigga pissin!! You’ll just don’t like that shit yeah we disrespectfull to don’t do it if you’ll dont want niggas doing it on bro!!” A reasonable understanding of this post is that Gaines made the video of him urinating on the opposing gang member’s grave in response to feeling disrespected in a song made or posted by Case gang members. A few days after he posted the cemetery video, members of the opposing gang apparently reposted an old video of him being jumped and Gaines was told that members 8 of the Case gang were looking for him. He responded with threats of his own, first posting to Instagram “stop putting dirt on my name and tryna get clout off this old ass video take a trip let’s go on a field trip” and two weeks later posting a video that showed him “holding a black handgun” and pointing it at the camera. The cemetery video helps explain how Gaines engaged in the “ongoing feud” and why the Case gang members would repost the old video of him being jumped. Without the cemetery video, the back and forth between Gaines and the Case gang is less persuasive as a motive for the shooting. The prosecutor was entitled to introduce the videos to provide the full chronology and context for the murder unless the probative value of this evidence was “ ‘substantially’ outweighed by the probability of a ‘substantial danger’ ” of undue prejudice. (People v. Holford (2012) 203 Cal.App.4th 155, 167 [emphasizing the “sometimes overlooked words, ‘substantially’ and ‘substantial danger’ ” in Evidence Code section 352]; see also People v. Tran (2011) 51 Cal.4th 1040, 1047 [“Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect”].) The Supreme Court has defined “undue prejudice” as that which “uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.” (People v. Crittenden (1994) 9 Cal.4th 83, 134; People v. Holford, supra, 203 Cal.App.4th at p. 167 [“ ‘ “ ‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues’ ” ’ ”].) “In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, 9 motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (People v. Doolin (2009) 45 Cal.4th 390, 439.) “ ‘ “[T]he trial court [has] broad discretion when weighing the probative value and prejudicial effect of proffered evidence” ’ [citation], and that exercise of discretion ‘will not be disturbed on appeal unless the prejudicial effect of evidence so admitted clearly outweighed its probative value.’ ” (People v. Clark (2019) 43 Cal.App.5th 270, 291; People v. Lamb (2024) 16 Cal.5th 400, 424 [We “ ‘do 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’ ” ’ ”].) Here, we accept Gaines’s premise that desecration of a grave violates cultural norms and may have evoked an emotional bias against Gaines in some jurors. The fact remains, however, that the evidence had more than slight probative value with regard to the issues in the case. The court’s decision in People v. Lamb, supra, 16 Cal. 5th 400 is instructive. In that case, the prosecution sought to introduce videos that had been shown on Fox 11 News that “introduces PEN1 as a gang ‘increasing recruitment efforts in the ranks of white supremacist skinheads’ and making a push for power in prison and out on the streets.” (Id. at p. 420.) Among other things, the videos included images of tattooed prisoners exercising, white supremacist gang graffiti and tattoos, attack dogs and dog fighting, swastikas and “cross burnings.” (Id. at pp. 421–422.) Because the murder victim appeared in the video and was described as a shot caller in PEN1, the prosecutor argued that the videos were probative of the motivation behind 10 the murder. (Id. at pp. 420, 422.) Specifically, the prosecutor’s theory was that the defendant was “acting upon an order to kill [the victim] in retaliation for having participated in a news program about the gang.” (Id. at p. 408.) The defendant “objected to the videos on the ground they were unduly prejudicial because [the victim] rarely appeared in the videos and the videos had ‘a lot of media hype’ to make PEN1 ‘look like the most dangerous thing out there.’ ” (Id. at p. 422.) The trial court expressed concern that some of the images were prejudicial but “was ultimately persuaded that the probative value of demonstrating a motive to kill [the victim] was not substantially outweighed by the prejudice.” (Id. at pp. 422–423.) The California Supreme Court rejected the defendant’s argument that the evidence should have been excluded under Evidence Code section 352 because “the Fox videos were unduly inflammatory and created the substantial likelihood that the jury would use them for an illegitimate purpose.” (People v. Lamb, at p. 425.) The court explained: “Although Lamb argued in the trial court that the prosecutor’s theory of the case could be accommodated through other means or that portions of the videos should be redacted, ‘the “persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them.” ’ [Citation.] The jury was entitled to view what the prosecutor theorized and witnesses confirmed was the motivation for murder, and the Fox videos and the inflammatory content contained therein ‘assisted the jury in understanding’ the motivation for the crime, ‘and the People were entitled to employ such evidence to prove their case.’ (Ibid.) Lamb has failed to demonstrate that the probative value of the Fox videos was substantially outweighed by a substantial danger of 11 undue prejudice to constitute an abuse of discretion.” (Id. at pp. 425–426, footnotes omitted.)2 As in Lamb, the question in this case may be somewhat close but, on this record, we cannot conclude that the trial court abused its discretion in weighing the admissibility of the cemetery videos under Evidence Code section 352. (People v. Lamb, supra, 16 Cal.5th at p. 420 [“Although the question is close, we conclude the trial court did not abuse its broad discretion in admitting the videos”]; see also People v. Clark, supra, 43 Cal.App.5th 270, 292 [where evidence that defendant pimped and pandered other women carried risk that it might invoke an emotional bias against defendant but also rebutted defendant’s claim that he did not intend to pander victim, court could not “conclude that no reasonable judge would have admitted the evidence”].) We are not persuaded by Gaines’s reliance on People v. Coneal (2019) 41 Cal.App.5th 951. In that case, the court held that the trial court abused its discretion by failing to exclude under Evidence Code section 352 rap 2 In Lamb, to lessen the possible prejudice of the videos, at the defendant’s request, “the court instructed the jury multiple times that the Fox videos contained images of bigotry, opinions by certain individuals, inflammatory remarks by purported gang members, and sensationalism by newscasters. It also instructed the jury it was not to consider the videos as proof of the truth of any statements made by anyone in the recording or for any purpose other than that provided, nor were they to conclude that Lamb was a person of bad character or disposed to commit crimes.” (People v. Lamb, supra, 16 Cal.5th at p. 426.) Gaines does not argue that he made a similar request in this case. The jury was, however, twice instructed not to let bias or prejudice influence its assessment of the evidence or its decision. (Cf. People v. Jablonski (2006) 37 Cal.4th 774, 806 [noting that the jury was “admonished that it was not to be influenced by pity for the defendant or prejudice against him, nor by sentiment, conjecture, sympathy, passion, prejudice, public feeling or public opinion”].) 12 videos containing lyrics that “casually describe graphic, widespread violence” and that were misogynistic. (Coneal, at pp. 965, 970–971.) The court found that “the lyrics add no probative value but are extremely prejudicial.” (Id. at p. 968.) The lyrics could be considered probative only if they were construed “literally, as statements of fact or actual intent,” but the usual factors that could increase lyrics’ probative value as a statement of fact—such as temporal proximity and factual similarity to the charged crime, or the existence of corroborating evidence regarding the lyrics’ claims—were entirely absent, rendering the probative value “minimal.” (Id. at pp. 968, 970–971.) On the other side of the scale, the videos “paint[ed] a picture of appellant and his fellow gang members as eagerly and ruthlessly seeking out and engaging in violence, with no empathy for their victims,” and thus posed “a significant danger that the jury will use it as evidence of appellant’s violent character and criminal propensity in violation of Evidence Code section 1101, subdivision (a).” (Coneal, at pp. 970–971.) “Weighing this minimal probative value against the significant prejudicial effect,” the court concluded that “the admission of the rap videos was an abuse of discretion under Evidence Code section 352.” (Coneal, at p. 972.) The videos’ probative value was more than minimal here. They may have been prejudicial insofar as they showed Gaines engaged in morally reprehensible and inflammatory acts, but that was the apparent reason he posted them—as a deliberate insult to members of a rival gang. The videos had probative value because they evidenced and explained Gaines’s involvement in the trajectory of that rivalry, which culminated in the homicide of Humphries. In that respect, they were not merely cumulative of other evidence, and we cannot find that the trial court abused its discretion 13 in concluding that their prejudicial impact did not substantially outweigh their probative value. But even if we assume the evidence was erroneously admitted, we conclude it was not reversible prejudicial error. Contrary to Gaines’s argument, prejudice in this case is properly evaluated under the state law standard rather than the federal constitutional standard. “ ‘The admission of evidence results in a due process violation only if it makes the trial fundamentally unfair. [Citation.] “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.” ’ ” (People v. Coneal, supra, 41 Cal.App.5th at p. 972.) As discussed above, because the evidence was relevant to establish motive in this case, no due process violation occurred. “ ‘Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional [state law] test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.’ ” (People v. Watson (2008) 43 Cal.4th 652, 686.) Here, both witness testimony and surveillance video evidence established that one person appeared at the crime scene. That person arrived and fled in the Audi A4 that Gaines stole five days earlier. The suspect wore the same red and black jacket that Gaines wore in an Instagram video posted on the day of the murder and that was also recovered in his possession at the time of his arrest. Call detail records placed his phone at the crime scene at the time of the shooting. The victim was shot with the same gun recovered at the time of Gaines’s arrest. In light of this 14 overwhelming evidence, there is no reasonable probability that Gaines would have obtained a more favorable outcome had the cemetery videos been excluded. (See People v. Doolin, supra, 45 Cal.4th 390, 439 [any evidentiary error under Evidence Code section 352 was harmless where “[t]here was overwhelming evidence of defendant’s guilt”].) II. Gaines contends that his trial counsel rendered ineffective assistance by failing to object under Evidence Code section 1101, subdivision (b), to the admission of the uncharged purse theft in the Costco parking lot. A defendant claiming ineffective assistance of counsel must show two things: (1) trial counsel’s performance fell below an objective standard of reasonableness, and (2) but for trial counsel’s deficient performance, there is a reasonable probability that the trial outcome would have been different. (In re Seumanu (2024) 100 Cal.App.5th 599, 623–624.) Evidence Code section 1101, subdivision (a) prohibits a court from admitting evidence of a person’s character “to prove his or her conduct on a specified occasion.” Subdivision (b) of this section, however, authorizes a court to admit “evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident[ ] . . .) other than his or her disposition to commit such an act.” Gaines argues that a reasonably competent defense attorney would have objected because the incident bore no similarity to the charged offenses and thus, there is a strong probability the trial court would have excluded the evidence, and there was no potential benefit in allowing the jury to hear about an uncharged crime that was relevant only to show criminal propensity.

15 We need not decide whether counsel’s failure to object was deficient, because even assuming it was, the admission of this evidence was not prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 697 [“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”].) Gaines acknowledges that the uncharged theft was not more inflammatory than the other thefts with which he was charged. Given the evidence of these other recent thefts, there is no likelihood that the result would have been more favorable to Gaines had this evidence not been admitted. (Id. at p. 694 [to establish prejudice “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”].) The fact that the jury was unable to reach a verdict on count 9—the theft of the motorcycle— does not indicate that it harbored doubts about the offenses of which it convicted him. If anything, it suggests that the jury carefully and independently evaluated the evidence of each alleged incident, and was not swayed by the uncharged purse theft.3 III. Gaines was sentenced to an aggregate term of 64 years-and-four- months-to-life in state prison, consisting of an indeterminate term of 38 years-to-life for murder and a consecutive determinate term of 26 years and four months on the remaining counts. For Gaines’s conviction of first degree murder (count 1), the court sentenced him to 25-years-to-life, with enhancements of ten years for personal use of a firearm and three years for 3 At trial, the victim identified Gaines as the person who drove off with his motorcycle, but admitted during cross-examination that, when he testified at the preliminary hearing, he had been unable to identify anyone in the courtroom as the person who took it. 16 inflicting great bodily injury. As to the determinate sentence, for the December 2 carjacking (count 6), the court imposed an upper term of nine years, plus a ten-year enhancement for personal use of a firearm and three years for inflicting great bodily injury, for a sentence of 22 years. With respect to the remaining counts, the court imposed a one-year term on the January 8 robbery (count 8), a one-year term for the December 2 assault (count 7) plus one year for the great bodily injury enhancement, eight months for unlawful driving (count 5), and eight months for the illegal firearm possession (count 2). The sentences imposed on the remaining firearm offenses (counts 3 and 4) were stayed pursuant to section 654. A. Gaines contends that the trial court erred by imposing consecutive sentences for both assault (count 7) and carjacking (count 6). He argues that the court was required under section 654 to stay the sentence imposed on one of the counts because both were based on the same physical act of driving a vehicle in a threatening manner. The Attorney General concedes that section 654 applies. Gaines requests that this court remand for resentencing, noting that section 654 allows the trial court to stay the sentence for either count 6 or count 7, at its discretion. (§ 654, subd. (a); People v. Mathis (2025) 111 Cal.App.5th 359, 367.) In light of the additional sentencing errors that require correction on remand, we agree with Gaines that remand for resentencing on this issue is appropriate as well.4 4 In light of this conclusion, Gaines’s argument that the great bodily injury enhancement imposed on count 7 was based on the same injury to the victim, and the same conduct by the defendant, as the great bodily injury enhancement imposed on the carjacking count is moot. 17 B. Gaines contends that the enhancement for personal use of a firearm imposed on the carjacking count must be stricken because no evidence was presented that a firearm was employed during the commission of that offense and that the enhancement for infliction of great bodily injury on the murder count is prohibited by section 12022.7, subdivision (g). The Attorney General concedes the above enhancements must be stricken, noting that the information did not allege these enhancements and the jury made no such findings. We agree and accordingly direct the trial court on remand to strike the enhancement for personal use of a firearm imposed on count 6 and the enhancement for infliction of great bodily injury imposed on count 1. The Attorney General argues that remand for resentencing on count 6 is required because the information alleges that Gaines “personally used a deadly and dangerous weapon(s), to wit: vehicle, said use not being an element of the above offense, within the meaning of Penal Code Section 12022(b)(1)” and the jury found this allegation to be true, but the court did not impose sentence on this enhancement. (See People v. Delgado (2010) 181 Cal.App.4th 839, 854 [Attorney General may raise a sentencing error for the first time in connection with defendant’s appeal].) This issue can also be resolved by the trial court on remand. C. Gaines contends that the trial court abused its discretion by denying his motion to strike some or all of the sentencing enhancements under section 1385. Under section 1385, subdivision (c)(1), a court “shall dismiss an enhancement if it is in the furtherance of justice to do so.” In exercising its discretion under this subdivision, “the court shall consider and afford great weight to evidence offered by the defendant to prove that . . . [certain]

18 mitigating circumstances . . . are present,” including that “defendant was a juvenile when they committed the current offense” (§ 1385, subd. (c)(2)(G)), “[m]ultiple enhancements are alleged in a single case” (id., subd. (c)(2)(B)), and the enhancements resulted in a sentence of over 20 years (id., subd. (c)(2)(C)). “Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (Id., subd. (c)(2).) However, even “absent a finding that dismissal would endanger public safety, a court retains the discretion to impose” an enhancement if it “finds substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.’ ” (People v. Walker (2024) 16 Cal.5th 1024, 1029 (Walker); see also People v. Bravo (2025) 107 Cal.App.5th 1144, 1157 [“[s]ection 1385(c) does not mean that, whenever a listed mitigating circumstance is present, the trial court must dismiss all enhancements unless it finds dismissal would endanger public safety”].) In the trial court, Gaines asserted that the mitigating factors identified above supported his request to strike some or all of the enhancements.5 In his sentencing memorandum, he set forth the significant amount of time in prison that he would be facing without the enhancements and argued that, “given this exposure on the prison terms, it cannot be said that not imposing the enhancements would endanger public safety.” At the hearing, counsel reiterated that “so much of Mr. Gaines’ conduct surrounding the homicide, be it urinating on a grave or rapping or—those kinds of activities really evince a 5 The record reflects that Gaines was 18 years old when the offenses were committed. 19 very immature person. And I just wanted to mention that those facts sort of, I believe, dovetail into my argument that the Court should impose the low term when possible in this case and should strike the enhancements pursuant to [section] 1385 as it’s set out in my sentencing memorandum.” The trial court offered the following explanation for the sentence selected and the denial of Gaines’s motion: “I have certainly taken the defendant’s age into consideration. And if [this] were an isolated incident or if there [had not been] any prior conduct that was very similar, I may find that more compelling. However, this is not—these cases were not the defendant’s first criminal activity. He had a prior robbery as a juvenile and went through counseling and treatment for that which apparently had little to no effect because it did not prevent him whatsoever in engaging in this very lengthy crime spree. [¶] So it is the intention of the Court to sentence the defendant to the maximum sentence allowed by law for the crimes of which he’s been convicted, which amounts to a determinate term of 26 years and 4 months, and an indeterminate term of 38 years to life in the state prison. [¶] I’ve taken into consideration the defendant’s age at the time of the offense, as well the defense memorandum regarding mitigating circumstances. But I do not find any of them to be compelling enough to impose anything other than the earlier term of the principal term or Count 6, as well as the upper terms for each of the enhancements. The circumstances in aggravation far outweigh any of the mitigating circumstances. [¶] Along with the great violence and weapons used which form the basis for some of the enhancements, each of the victims in these cases were unarmed and vulnerable. The crimes involved the taking of items of great monetary value. The defendant has suffered prior juvenile findings, and his conduct has increased in seriousness and violence. [¶] The defendant was on probation 20 at the time of these offenses and his prior performance on probation was unsatisfactory. [¶] Any one of the circumstances in aggravation could form the basis for imposition of the upper term. Collectively, they highlight just how dangerous the defendant is and why he should not be allowed to return to the community any time soon. [¶] The enhancements in this case appear to be appropriate to adequately punish the defendant for his extremely dangerous actions that posed an extreme and unreasonable danger to the community.” On appeal, Gaines argues that the trial court “abused its discretion by focusing entirely on Gaines’ current dangerousness and failing to consider whether he will present a threat to public safety in the future, i.e., at the time he would become eligible for parole if the enhancements were dismissed. The court also erred by failing to consider that the Parole Board will make a determination whether Gaines is a threat to public safety before he can be released. Gaines was only 18 years old when he committed the offenses here, and his earliest possible release date is over 30 years in the future. Thus, the trial court’s ruling was contrary to the spirit of the statute, and runs afoul of case law, by focusing on Gaines’ current rather than future dangerousness.” Initially, the Attorney General argues that this claim has been forfeited by Gaines’s failure to interpose a timely objection. We disagree. Counsel’s written memorandum and argument at the hearing are sufficient to preserve the claim for appeal. Turning to the merits, the Attorney General notes correctly that section 1385, subdivision (c)(2), “does not require the trial court to consider any particular factors in determining whether ‘there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.’ ” (People v. Mendoza (2023) 88 Cal.App.5th 287, 299 21 (Mendoza).) And Gaines did not ask the court to consider how dismissing one enhancement but not another might impact his risk to public safety or that “the Board of Parole Hearings will serve as a backstop to prevent Gaines from being released in the future if he remains a threat to public safety at the time he becomes eligible for parole.” Nor does the record affirmatively reflect, as Gaines suggests, that the trial court considered only his current dangerousness. There is no dispute that “the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public.” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 228.) In Gonzalez, at pages 223 to 224, 228, the court held, however, that a trial court errs when it considers only a defendant’s current risk to public safety. In that case, the trial court erroneously believed “that it was required to decide whether the defendant ‘currently at the time of sentencing represent[s] a danger to society’ ” and expressly rejected the defendant’s argument that “in assessing whether dismissing the enhancements would endanger public safety, ‘the trial court must look to when [Gonzalez] would be released if a modification is granted’ and focus on the ‘consideration of public safety following his release.’ ” (Id. at pp. 226, 227.) The court observed that the trial court’s statement that the defendant “ ‘presently . . . does represent a danger to society,’ ” reflects the court’s “singular focus on whether the defendant currently poses a danger.” (Id. at pp. 224, 228.) Unlike in Gonzalez, the trial court in this case did not indicate that it was limiting its analysis to current dangerousness or expressly decline to consider whether the defendant would remain dangerous at the time of his release.

22 The record reflects that the trial court denied the motion not because it believed dismissal of the enhancement would endanger public safety, or just because it believed so, but because it found that Gaines’s “extremely dangerous actions that posed an extreme and unreasonable danger to the community” outweighed the mitigating circumstances to such a degree that sentencing him on the enhancements was necessary to ensure that he “not be allowed to return to the community any time soon” and to “adequately punish” him for his crimes. By the time of his sentencing in December 2024, the California Supreme Court had decided Walker, supra, 16 Cal.5th at page 1029, in which the court held that “absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present.” In Walker, the court agreed with the court’s decision in People v. Ortiz (2023) 87 Cal.App.5th 1087 that “section 1385, subdivision (c)(2)’s mandate to give ‘great weight’ to enumerated mitigating circumstances requires a sentencing court to ‘engage[] in a holistic balancing with special emphasis on the enumerated mitigating factors.’ ” (Walker, supra, at p. 1034.) The Supreme Court emphasized that “there must be substantial, relevant, and credible evidence of aggravating factors to neutralize the ‘great weight’ of the mitigating circumstances.” (Id. at p. 1036.) On appeal, Gaines does not address Walker. He does not argue that the trial court failed to give adequate weight to the mitigating factors or that the evidence in support of the aggravating factors cited by the court is not sufficient. We note, however, that the court twice stated that it had considered Gaines’s youth and explained why that circumstance was not compelling in this case and that the evidence in support of the aggravating 23 factors was substantial, relevant, and credible. Accordingly, regardless of whether the trial court properly found that dismissing the enhancements would endanger public safety, the record reflects that the trial court engaged in the balancing approach endorsed in Walker. DISPOSITION The judgment is affirmed and the matter remanded for resentencing. GOLDMAN, J.

WE CONCUR:

STREETER, Acting P. J. GORDON, J.* * Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 24