People v. Wilson CA1/3

Filed 10/30/26 P. v. Wilson CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE THE PEOPLE, Plaintiff and Respondent, A172399 v. (City and County of San Francisco KESHON DERRICK WILSON, Super. Ct. Nos. CRI21004323, SCN234443) Defendant and Appellant. A jury convicted Keshon Derrick Wilson of first degree murder and attempted murder arising from his shooting two Norteño gang members at the 24th Street BART station in San Francisco. The trial court imposed a sentence of 25 years to life for the murder conviction and seven years to life for the attempted murder conviction. On appeal, Wilson argues his convictions for murder and attempted murder must be reversed because of the trial court’s incorrect response to a jury question about the level of provocation required to reduce murder from first to second degree. He posits its response allowed the jury to use the objective standard of provocation — whether a “person of average disposition” would have reacted from passion rather than judgment in similar circumstances — instead of the applicable subjective standard. He also argues the sentence for his attempted murder conviction is unauthorized. 1  We agree the trial court prejudicially erred in responding to the jury because a subjective test — whether a defendant was actually provoked — is used to assess the provocation required to reduce murder from first to second degree; the objective test is only relevant for assessing whether the provocation negates malice. And the subjective test is likewise relevant to determining whether an attempted murder is premeditated and deliberate. We reverse the murder and attempted murder convictions and remand for further proceedings. BACKGROUND Wilson worked for a power washing company cleaning BART stations. Every other day, people harassed him and the other power washers while they were working. Some were younger men who would get angry and try to fight the workers. One evening in March 2021, Wilson drove two coworkers to power wash the 24th Street BART station. After the cleaning, four men outside the station began yelling at Wilson. The men kept repeating, “ ‘This is 24th Street.’ ” Wilson and a coworker tried to ignore the harassment, and they placed their equipment back in the truck. At one point, however, the men were “in [Wilson’s] face.” They appeared dangerous, circling him and trying to provoke a fight. One man grabbed Wilson’s shirt. Another man had his hand in a backpack he held in front of him — Wilson believed he was holding a concealed gun. Both Wilson and his coworker also believed the men belonged to a gang. They said, “this is ‘26th Street, nigga, and fuck 16th Street,’ ” “ ‘[t]his is our hood. We’ll smoke you guys,’ ” and “What the fuck you doing over here.” Even though Wilson was trying to leave, the men kept grabbing and pushing him. He did not respond until “they called him the N- word”— specifically, “ ‘I better not catch you over here again, nigger’ ” — at 2 which point he became upset and began pacing back and forth and breathing heavily. Their harassment intensified. His coworker tried to deescalate the argument and guide him back to the truck, stating “hey, it’s not worth it,” but it was clear to him Wilson was becoming more upset. Wilson and his coworkers eventually returned to the truck, but he was still upset and physically tense. He began driving toward the 16th Street BART station, the next site for power washing. But he suddenly stopped the truck and got out, stating “they were talking the shit.” He ran back towards the 24th Street BART station. A coworker also exited the truck but could not chase after Wilson. The coworker heard about three or four gunshots. Wilson, holding a black object that looked like a gun, ran towards the truck a couple of seconds later. He got into the truck and drove away without his coworkers. Officers arrived at the scene shortly thereafter. One victim sustained multiple bullet wounds and died. Another man located a half block away had also been shot. Both men were later identified as being involved in the Norteño street gang, whose members generally carried guns. Officers recovered a backpack containing a nine-millimeter loaded gun. The district attorney charged Wilson with murder (Pen. Code, § 187, undesignated statutory references are to this code), and premeditated and deliberate attempted murder (§§ 187, 664). The complaint alleged several enhancements: personal discharge of a firearm resulting in death or great bodily injury (§ 12022.53, subd. (d)); armed with firearm (§ 12022, subd. (a)(1)); use of a firearm (§ 12022.5, subd. (a)); committing the offenses while on bail (§ 12022.1, subd. (b)); and, as to the attempted murder charge, personal infliction of a great bodily injury (§ 12022.7). 3  At a jury trial, Wilson testified he went back to the 24th Street BART station to take pictures of the completed work. But when he arrived, the men said, “hey, motherfucker.” They all started reaching for their guns with big clips, and Wilson stated he blacked out. He then ran away, scared he was running for his life. He admitted to shooting the victims. The trial court provided the jury with pattern instructions on murder, provocation, and voluntary manslaughter based on heat of passion. For the first degree murder charge, the court instructed the jury that the prosecution must prove Wilson “acted willfully, deliberately, and with premeditation. [¶] . . . A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.” (CALCRIM No. 521.) CALCRIM No. 522 — the standard instruction for provocation — provided in relevant part: “Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that [the defendant] committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter.” (CALCRIM No. 522.) CALCRIM No. 570 — the heat of passion instructions — provided in relevant part: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.” The instruction continued: “The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would 4 have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” The trial court also instructed the jury with CALCRIM No. 601 regarding deliberate and premeditated attempted murder. It provided that if the jury found Wilson guilty of attempted murder, it must decide “whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.” The instructions explained a defendant “acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act of attempted murder.” CALCRIM No. 603 — the pattern instructions regarding attempted voluntary manslaughter — explained that a “sudden quarrel or heat of passion” may reduce “an attempted murder to attempted voluntary manslaughter” if the defendant “acted under the direct and immediate influence of provocation as I have defined it.” And in “deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.” During deliberations, the jury asked the trial court, “Can we use the definition of provocation from CALCRIM 570 to help us determine whether provocation was significant and heavy enough to reduce the murder from first degree to second degree per CALCRIM 522?” Specifically, it asked whether it could use the phrase from the CALCRIM No. 570 heat of passion instruction — “ ‘consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment’ ” — to help it “determine whether the 5 provocation was significant and heavy enough to reduce the murder from 1st degree to 2nd degree per Calcrim 522?” After a colloquy with the parties, the trial court provided the following response: “It is up to you to determine the weight and significance of any evidence of provocation for purposes of reducing murder from 1st [degree] to 2d degree.” It continued, the “definition in CALCRIM 570 can be used by you to help evaluate provocation for this purpose, but you are not limited to that definition when considering whether any provocation reduces murder from 1st to 2nd degree.” The jury found Wilson guilty of premeditated, deliberate murder and premeditated, deliberate attempted murder. It also found true that he personally discharged a firearm causing both death and great bodily injury. The trial court sentenced him to 32 years to life, plus 10 years — 25 years to life for first degree murder, seven years to life for the premeditated and deliberate attempted murder, and 10 years for the personal use of firearm enhancement. DISCUSSION I. Wilson contends we must reverse his first degree murder conviction due to the trial court’s prejudicially erroneous response to the jury’s question about the provocation necessary to reduce murder from first to second degree. According to him, the court’s response allowed the jury to use the more stringent objective test for assessing provocation necessary for a voluntary manslaughter conviction rather than the subjective test required for reducing murder from first to second degree. We agree. Courts have a sua sponte duty to instruct juries “on the general principles of law relevant to the issues raised by the evidence.” (People v. 6 Hernandez (2010) 183 Cal.App.4th 1327, 1331 (Hernandez).) Instructions must be correct. (Ibid.) There is no duty to clarify or amplify adequate instructions absent a request. (Ibid.) But courts must “provide the jury with accurate information in response to a jury request on a question of law.” (People v. Nunez (2023) 97 Cal.App.5th 362, 369.) We independently review the accuracy of supplemental instructions, examining “whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant.” (Hernandez, at p. 1332; Nunez, at p. 369.) “We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions.” (Hernandez, at p. 1332.) “First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation.” (Hernandez, supra, 183 Cal.App.4th at p. 1332.) The defendant “must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death.” (People v. Chiu (2014) 59 Cal.4th 155, 166.) “Second degree murder is an unlawful killing with malice” but without premeditation or deliberation. (Hernandez, at p. 1332.) “[H]eat of passion arising from provocation” negates premeditation and deliberation, thus reducing first degree murder to second degree murder. (Ibid.) Specifically, if the provocation “precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder.” (Ibid.) This is a subjective test for assessing “provocation as a basis to reduce malice murder from the first to the second degree: it inquires whether the defendant in fact committed the act because he was provoked.” (People v. Jones (2014) 223 Cal.App.4th 995, 1000 (Jones).) 7  “ ‘Manslaughter is a lesser included offense of murder.’ ” (People v. Thomas (2013) 218 Cal.App.4th 630, 642.) If “the provocation would cause a reasonable person to react with deadly passion, the defendant is deemed to have acted without malice so as to further reduce the crime to voluntary manslaughter.” (Hernandez, supra, 183 Cal.App.4th at p. 1332; § 192, subd. (a).) The “provocation must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.” (People v. Lee (1999) 20 Cal.4th 47, 60.) Thus, determining whether to reduce malice murder to voluntary manslaughter requires applying an objective test and a subjective test. (People v. Moye (2009) 47 Cal.4th 537, 549 [“A heat of passion theory of manslaughter has both an objective and a subjective component”]; Jones, supra, 223 Cal.App.4th at pp. 1000–1001.) The prosecution must disprove the existence of heat of passion beyond a reasonable doubt to establish malice. (People v. Schuller (2023) 15 Cal.5th 237, 253 (Schuller).) Read together, CALCRIM Nos. 521, 522, and 570 correctly instructed the jury on first and second degree murder and voluntary manslaughter. The jury, however, asked if it could use the objective standard for assessing provocation in CALCRIM No. 570 in deciding whether to reduce first degree murder to second degree. (Jones, supra, 223 Cal.App.4th at p. 1001.) And the trial court responded that the “definition in Calcrim 570 can be used by you to help [you] evaluate provocation for this purpose, but you are not limited to that definition when considering whether any provocation reduces murder from 1st to 2d degree.” By so responding, the court authorized the jury to use the objective standard for assessing provocation to determine whether to reduce murder from first to second degree. The court thereby erred. 8  Only a subjective test for provocation is relevant when deciding to reduce murder from first to second degree. (Jones, supra, 223 Cal.App.4th at p. 1000.) Reducing “murder to voluntary manslaughter requires more. It is here, and only here, that the jury is instructed that provocation alone is not enough for the reduction.” (Id. at p. 1001, italics added.) Specifically, “the provocation must meet an objective test,” one that “must be sufficient to cause a person of average disposition in the same situation, knowing the same facts, to have reacted from passion rather than judgment.” (People v. Ocegueda (2023) 92 Cal.App.5th 548, 558 (Ocegueda); Jones, at p. 1001.) The trial court’s response “misled the jury to believe that to reduce murder from first to second degree, provocation must meet the same objective test that leads to a reduction to voluntary manslaughter.” (Ocegueda, at pp. 558–559; Jones, at p. 1001 [instruction that “an objective test applied to reduce murder from first to second degree” would result in a reasonable probability jury understood an instruction in a legally impermissible manner].) If the objective component of provocation also applied to the choice between first and second degree murder, “there would be no circumstances under which murder could be reduced from first to second degree based on provocation without being further reduced to manslaughter.” (Ocegueda, at p. 559.) The Attorney General unpersuasively resists this conclusion. First, they argue CALCRIM Nos. 520, 521, 522 and 570, read together, properly preserve the distinctions between second degree murder and voluntary manslaughter. (Hernandez, supra, 183 Cal.App.4th at p. 1334 [provocation “can give rise to a rash, impulsive decision,” showing no premeditation and deliberation].) The instructions also properly stated there was an additional, objective test for assessing whether the provocation reduced murder to voluntary manslaughter. But the Attorney General fails to address the 9 relevant issue — whether the trial court’s response to the jury’s question accurately stated the law. (People v. Nunez, supra, 97 Cal.App.5th at p. 369.) It did not. The response was “a specific ruling on a vital issue and misleading.” (Bollenbach v. United States (1946) 326 U.S. 607, 612.) Under those circumstances, “the error is not cured by a prior unexceptionable and unilluminating abstract charge.” (Ibid.) Second, the Attorney General insists additional statements in the trial court’s response — that “[i]t is up to you to determine the weight and significance of any evidence of provocation for [the] purposes of reducing murder from 1st degree to 2d degree” and that “you are not limited to that [definition of provocation in CALCRIM No. 570] when considering whether any provocation reduces murder from 1st to 2d degree” — properly mirrored CALCRIM No. 522. This argument too ignores the problematic crux of the court’s response. It permitted the jury to use CALCRIM No. 570’s objective test when considering whether to reduce murder to second degree under CALCRIM No. 522. By doing so, the court instructed the jury that “the same standard governed provocation as it related to both the elements of first degree murder and the heat of passion theory of voluntary manslaughter.” (Ocegueda, supra, 92 Cal.App.5th at p. 559.) Telling the jury it was not limited to considering whether the provocation was objectively sufficient to reduce the murder charge from first to second degree did not eliminate the instructional error. And that error was prejudicial. (Schuller, supra, 15 Cal.5th at p. 254.) We review an instructional error that “improperly describes or omits an element of an offense” under the standard in Chapman v. California (1967) 386 U.S. 18. (People v. Larsen (2012) 205 Cal.App.4th 810, 829.) Under that standard, we must reverse a judgment unless “ ‘it is clear beyond a 10 reasonable doubt that a rational jury would have rendered the same verdict absent the error.’ ” (People v. Canizales (2019) 7 Cal.5th 591, 615.) Here, “after examining the entire cause, including the evidence, and considering all relevant circumstances,” we cannot conclude the “error was harmless beyond a reasonable doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 13.) To begin, the jury’s verdict does not render it impossible that it could have found Wilson committed premeditated and deliberate murder without also finding he was subjectively provoked. (In re Lopez (2023) 14 Cal.5th 562, 568 [no prejudice if “it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also finding the missing fact as well”].) The prosecutor was required to demonstrate beyond a reasonable doubt that Wilson did not commit the killing in a heat of passion. (Schuller, supra, 15 Cal.5th at p. 253.) By finding Wilson committed premeditated and deliberate murder, the jury necessarily rejected that he acted in the heat of passion and instead acted with malice. (People v. Wharton (1991) 53 Cal.3d 522, 572.) But due to the instructional error, it could have rejected this defense after concluding a person of average disposition would not have been sufficiently provoked under the circumstances. (Ocegueda, supra, 92 Cal.App.5th at p. 559.) Nothing clearly demonstrates the jury rejected this defense because it concluded Wilson was not actually provoked. (People v. Padilla (2002) 103 Cal.App.4th 675, 678 [test for provocation sufficient to reduce murder to second degree assesses whether the defendant acted because he was provoked even if it would not arouse the passion of an ordinarily reasonable person].) Moreover, there was sufficient evidence from which a jury could conclude Wilson was actually provoked. (Hernandez, supra, 183 Cal.App.4th at p. 1331; Schuller, supra, 15 Cal.5th at p. 261 [error not harmless beyond a 11 reasonable doubt where defendant contests an omitted element and raises evidence “sufficient to support a contrary finding”].) Testimony established men who smelled like alcohol and appeared to be gang members tried to provoke a fight with Wilson. They circled him, one grabbed his shirt, and another was holding a backpack in a manner indicating he was holding a gun. They said, “this is ‘26th Street, nigga, and fuck 16th Street,’ ” and “ ‘[t]his is our hood. We’ll smoke you guys.’ ” They called him the N-word, resulting in Wilson becoming visibly upset, pacing back and forth and breathing heavily. (People v. Manriquez (2005) 37 Cal.4th 547, 583 [provocative conduct may be physical or verbal].) Even though he returned to the truck and attempted to drive away, he remained physically tense and upset. When Wilson drove back to the 24th Street BART station, he got out of the truck while stating, “they were talking the shit,” and then ran towards the station where the shooting occurred. He testified that at soon as he saw the men, they said, “hey, motherfucker.” They started reaching for their guns with big clips; Wilson claimed he blacked out and was scared they were going to kill him. (People v. Dominguez (2021) 66 Cal.App.5th 163, 180 [“any intense emotion (except revenge) may suffice” to satisfy the subjective provocation component, “including fear and panic”].) On this record, we cannot rule out that the facts may show Wilson was only guilty of second degree murder because he was actually provoked by fear. (In re Lopez, supra, 14 Cal.5th at p. 580; Dominguez, at p. 180.) The extent of the jury deliberations here — more than 13 hours spread across four days — including its focus on provocation, further indicates the error was not harmless beyond a reasonable doubt. (People v. Cardenas (1982) 31 Cal.3d 897, 907 [deliberations lasting nearly six hours 12 demonstrates finding of guilt was not “ ‘open and shut’ ”].) The jury requested a reread of testimony from Wilson’s coworker — his description of the events while at the BART station; Wilson being called the N-word and his description of Wilson’s overall demeanor; that Wilson stated, “ ‘they were talking shit’ ”; and confirming the number of times the coworker stated, “ ‘it’s not worth it’ ” to Wilson. (People v. Diaz (2014) 227 Cal.App.4th 362, 385 [request to reread substantial portion of testimony demonstrates closeness of case].) It also asked, “How much provocation is needed to reduce a murder from 1st degree to second degree? What is the definition of sufficient provocation? How long can a state of provocation exist?” At one point, even after receiving the trial court’s response that “the definition in Calcrim 570 can be used by you to help evaluate provocation” for the purpose of reducing first to second degree murder, the jury stated it “cannot all agree that the defendant is guilty of first degree murder, for count one.” (Ibid. [closeness of case demonstrated by jury reporting itself deadlocked].) The Attorney General advances various arguments to show Wilson was not actually provoked, thus any error was harmless. None demonstrate the error was harmless beyond a reasonable doubt. First, they argue there was sufficient time to cool off after he initially left the station and before the shooting. They also cite the prosecutor’s closing argument that “[i]t is not enough that the defendant simply was provoked. What you have to find is that in the same situation and knowing the same facts an average person would have reacted from passion.” But this reliance on voluntary manslaughter principles underscores the prejudice flowing from the error here. Whether “ ‘ “sufficient time has ela[ps]ed for the passions of an ordinarily reasonable person to cool” ’ ” is an issue related to reducing murder 13 to manslaughter, not second degree murder. (People v. Hach (2009) 176 Cal.App.4th 1450, 1458.) Next, the Attorney General highlights Wilson’s own testimony that he exited the truck and returned to the 24th Street station to take pictures of his completed work to demonstrate he was not subjectively provoked. But the jury was instructed it “may believe all, part, or none of any witness’s testimony.” (CALCRIM No. 226; People v. Lopez (2022) 78 Cal.App.5th 1, 19.) Thus, it is possible the jury rejected this testimony but credited his and his coworker’s testimony that the victims, who were armed gang members, threatened and provoked him. Finally, relying on statements from Wilson’s counsel during closing arguments — “[n]one of this would have happened if [Wilson] weren’t provoked” by the victims, and “to say there’s no heat of passion, that there’s no provocation, that there’s no emotional response is really ignoring the evidence” — the Attorney General notes the trial court’s response did not prevent the defense from arguing subjective provocation played a role during the killing. (People v. Aguilar (1997) 16 Cal.4th 1023, 1036 [considering closing arguments when assessing prejudice].) But nothing in these statements contradicted or clarified the trial court’s incorrect response to the jury that the objective standard of provocation applied to negate both malice and premeditation and deliberation. Moreover, had these statements conflicted with the court’s response, the jury was instructed under CALCRIM No. 200 to follow the court’s instructions on the law over contrary arguments of counsel. In sum, we cannot conclude the trial court’s response to the jury, allowing it to use the objective standard when assessing provocation to 14 reduce first degree to second degree murder, was harmless beyond a reasonable doubt. Accordingly, we reverse the first degree murder conviction. II. Wilson contends we must reverse his premeditated and deliberate attempted murder conviction for the same reason reversal of the murder conviction is required. We agree. “ ‘[A]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ ” (People v. Smith (2005) 37 Cal.4th 733, 739.) Like murder, an attempted murder that occurs “as the result of preexisting thought and reflection rather than unconsidered or rash impulse” is premeditated and deliberate. (People v. Stitely (2005) 35 Cal.4th 514, 543; § 664, subd. (a) [same definitions of willful, deliberate and premeditated apply to attempted murder and murder].) “When relying on heat of passion as a partial defense to the crime of attempted murder, both provocation and heat of passion must be demonstrated.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709, italics omitted.) If the prosecution fails to prove beyond a reasonable doubt the absence of a sudden quarrel or heat of passion, the defendant cannot be convicted of attempted murder. (People v. Franklin (2018) 21 Cal.App.5th 881, 887–888.) As Wilson notes, CALCRIM No. 522 informed the jury it could consider provocation when determining whether a first or second degree murder occurred. CALCRIM No. 601 further instructed the jury to consider Wilson’s mental state and whether he acted rashly when determining whether he committed the attempted murder with deliberation and premeditation. And CALCRIM No. 603 explained that provocation, as the trial court defined it, was relevant to assessing whether Wilson acted in the heat of passion when 15 attempting to kill the victim. Considering all the instructions provided as a whole, and for the same reasons set forth in our analysis of the previous claim, there is a reasonable likelihood the jury understood the court’s supplemental instruction — that it could apply the objective standard when assessing whether Wilson was provoked — to preclude it from considering subjective provocation when determining whether Wilson committed attempted murder with premeditation and deliberation. (Hernandez, supra, 183 Cal.App.4th at p. 1332; People v. Doane (2021) 66 Cal.App.5th 965, 980.) As discussed above, that error was not harmless beyond a reasonable doubt; accordingly, the attempted murder conviction must be reversed. In light of this conclusion, we do not address Wilson’s argument the trial court erred by failing to sua sponte modify CALCRIM No. 522 to refer to a degree of attempted murder. III. In light of our reversal of the judgment, we do not address Wilson’s argument regarding the trial court’s alleged sentencing error — that it incorrectly imposed an indeterminate term of seven years to life for premeditated and deliberate attempted murder. Instead, we remand to give the prosecution the opportunity to retry Wilson on his charges or accept modification to the judgment to reflect Wilson’s convictions for second degree murder and attempted murder without the premeditation enhancement. (People v. Diaz, supra, 227 Cal.App.4th at p. 386; People v. Thomas, supra, 218 Cal.App.4th at p. 647.) Depending on the outcome, resentencing is warranted “to allow the trial court ‘to reconsider [the] entire sentencing structure.’ ” (People v. Bautista (2005) 129 Cal.App.4th 1431, 1438; Diaz, at p. 386.) 16  DISPOSITION Wilson’s convictions for first degree murder and attempted premeditated murder are reversed, and his sentence is vacated. We remand the matter for further proceedings consistent with this opinion. 17  _________________________ RODRÍGUEZ, J. WE CONCUR: _________________________ TUCHER, P. J. _________________________ FUJISAKI, J. A172399; People v. Wilson 18