People v. Cowan CA4/1

Filed 10/26/26 P. v. Cowan CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D084049 Plaintiff and Respondent, v. (Case No. SCD291715) RICHARD COWAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Richard Cowan of the first degree murder of Mario Bullard, attempted murder and assault with a semi-automatic firearm of Joseph M. and Michael H., and assault with a semi-automatic firearm of Lonnie H. Cowan contends on appeal that there is insufficient evidence to support his two attempted murder convictions because the prosecution failed to prove he had the intent to kill. He further contends that the trial court erred by: denying his request for a Kelly1 hearing on the prosecution’s firearm and toolmark comparison evidence; allowing the prosecution’s firearm and toolmark comparison expert to testify that the cartridge casings recovered from three of the four crime scenes matched Cowan’s firearm; and inadequately responding to the jury’s request for a definition of “intent to kill.” Cowan argues that these errors were prejudicial and require reversal of his remaining convictions as well. We conclude there was substantial evidence from which a reasonable jury could find Cowan had the intent to kill victims Joseph M. and Michael H. We also conclude the trial court did not err in admitting the People’s expert witness testimony or in responding to the jury’s question, and we therefore affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In 2022, Cowan was charged with one count of murder (Pen. Code,2 § 187, subd. (a); count 1), three counts of attempted murder (§§ 187, subd. (a), 664; counts 2, 4, and 6), and assault with a semi-automatic firearm (§ 245, subd. (b); counts 3, 5, and 7). The information further alleged that Cowan intentionally and personally discharged a firearm causing great bodily injury or death to a non-accomplice (§ 12022.53, subd. (d); counts 1 and 4), intentionally and personally discharged a firearm (§ 12022.53, subd. (c); counts 2 and 6), personally used a firearm (§ 12022.5, subd. (a); counts 3, 5, and 7), and personally inflicted great bodily injury upon a non-accomplice 1 People v. Kelly (1976) 17 Cal.3d 24. 2 (§ 12022.7, subd. (a); count 5). Cowan pleaded not guilty and denied the special allegations. Near the end of the prosecution’s case in chief, the prosecutor filed an amended information, which included all of the allegations in the original information and further alleged various aggravating factors. Cowan again pleaded not guilty and denied the special allegations and aggravating factors. A. The Prosecution’s Case 1. Background Information Cowan lived in an apartment in the Stadium Arms apartment complex located at 4525 Twain Avenue in the Grantville neighborhood of San Diego, where he had moved in 2011. The complex, which was not gated, consisted of nine buildings arranged around a courtyard, with a main entrance on Twain Avenue. Cowan owned two Jeeps and a motorcycle, and he was often concerned about the safety of his vehicles. Cowan had one assigned parking space, and he had to park his other vehicles on the street. Cowan expressed frustration on multiple occasions with vehicles being stolen or vandalized at the apartment complex, and he felt that the manager needed to be more vigilant. At some point, Cowan began walking around his neighborhood late at night, apparently monitoring the area for possible criminal activity. Stadium Arms apartment complex property manager Maricela F. testified that management sometimes reviewed after-hours surveillance footage. On that footage, she sometimes saw Cowan in the early morning hours, between midnight and 5:00 a.m., walking around various parts of the property. He was always alone, and she did not see other residents doing the same. Maricela never saw Cowan carrying a firearm or threatening anyone. 2 Undesignated statutory references are to the Penal Code. 3  In October 2016, a detective from the San Diego Police Department (SDPD) took a report from Cowan regarding a vehicle break-in. Cowan stated that his Jeep Cherokee had been broken into overnight while parked outside the Stein Education Center near 4500 Twain Avenue, and his Bose speaker was stolen. On January 17, 2017, Cowan purchased a .40 caliber Springfield Armory firearm, Model XD-40 (Springfield XD-40). On January 28, Cowan called the SDPD and reported that on the night of January 16 or early morning of January 17, someone had tampered with the ignition of his motorcycle and cut its wires. The same day of his police report, Cowan texted someone about picking up his “glock 40”; he later texted about wanting to go shooting. In June 2017, Cowan called the SDPD and reported that his motorcycle had been stolen. He had parked his motorcycle in front of 4608 Twain Avenue the night before and discovered it missing that morning. That same month, there was a series of messages between Cowan and another man where Cowan discussed patrolling the neighborhood but stated that on the night that he “slept on [his] duties,” his motorcycle was stolen. In several of the messages, Cowan referred to seeing “essays”—slang for Hispanic males— acting suspiciously in the neighborhood. In one message, Cowan said, “They gone get theres [sic]. If I have to be the one to serve it to them, then so be it.” In January 2020, an SDPD detective followed up on Cowan’s report to the police regarding another stolen motorcycle. Cowan stated that he had parked his motorcycle on the street at 4500 Twain Avenue earlier that day and realized it was missing later that evening. On April 12, 2020, shortly after midnight, Jacob C. was driving down Mission Gorge Road after stopping to pick up fast food. While driving, he 4 noticed a dark SUV repeatedly following and mimicking his movements, sometimes with its headlights flashing on and off. Jacob attempted several evasive turns, including turning left four times, but the SUV was still following him. Jacob became concerned and called 911. He stayed on the line with the dispatcher, reporting his location as the SUV continued to follow him, until police officers eventually intervened and conducted a traffic stop of the SUV. The SUV turned out to be a black Jeep Grand Cherokee driven by Cowan. Cowan denied following Jacob and said he was going to a nearby Vons. The police officer who pulled Cowan over noted that there were other grocery stores, including other Vons locations, closer to Cowan’s apartment. Between May 2020 and September 2021, Cowan sent more messages about going to shooting ranges. There were also videos of Cowan at a shooting range, some of which he posted on Facebook, and messages about getting an assault rifle. In June 2020, Cowan also sent and received Facebook messages about his motorcycle being stolen. From August 2019 to August 2021, Cowan called 911 thirteen times and the SDPD non-emergency number 41 times. In several of these calls, Cowan was calling to report what he believed were individuals casing vehicles or acting suspiciously. A few times when Cowan called 911, he told the dispatcher he was following vehicles he thought were engaging in suspicious activities in his neighborhood. 2. May 21, 2019 Shooting In the early morning of May 21, 2019, Richard J., who lived in an apartment on Vandever Avenue, heard what sounded like two people arguing outside his apartment. He did not recognize either voice. He heard one male voice say “No, no, no,” followed by multiple gunshots in rapid succession. 5 Richard J. looked out his window and saw someone lying in the street. When he took his dog outside shortly afterward, he approached the figure and found a man who was wheezing but unresponsive. Richard J. did not see anyone else in the area. Jason C., who lived at the same complex as Richard J., was awake in his apartment when he heard a man screaming frantically, “Oh no. Please,” followed by cursing and then the word, “Don’t.” Jason heard only one voice and did not recognize it. The voice was abruptly cut off by a gunshot, followed by a pause and then another gunshot. Jason dove to the floor and called 911 within seconds. He told the dispatcher he heard about five gunshots and a man screaming, although at trial he recalled hearing only two shots. Jason did not go outside and never saw the shooter or victim. Valeria R., who also lived at the complex, was studying with her sister when she heard gunfire through their open living room window. She heard two gunshots, a man saying “Please, no,” and then a third shot. Valeria heard only one voice. She called 911 within two minutes. She and her sister were too afraid to look outside. At around 2:50 a.m., SDPD officers arrived at the scene and found victim Mario Bullard lying face down with blood visible near his head and no pulse. Mario was wearing gloves, and no personal property was located nearby. He had suffered two gunshot wounds to his lower back, a gunshot wound to the left side of his neck, and a gunshot wound through his abdomen area. The cause of death was multiple gunshot wounds, and the manner of death was homicide. An SDPD crime scene specialist collected four cartridge casings, a bullet fragment, a car adapter, and a Virginia Slims cigarette butt from the crime scene. Each casing had a headstamp that read “S&B 40SW,” which 6 meant they were .40 caliber Smith and Wesson cartridge casings. An SDPD criminalist in the Firearms Identification Unit compared the cartridge casings to each other and concluded that all four casings were fired from the same firearm. The most common brands of firearm that could have fired these casings were FN Browning, Springfield, or Taurus. 3. April 28, 2020 Incident and Shootings At approximately 2:00 a.m. on April 28, 2020, a man named Richard called the SDPD to report Hispanic males casing vehicles near the Stadium Arms apartment complex where Cowan lived. The caller stated that his Jeep had broken down and was blocking the driveway into the apartment complex. When police officers arrived, Cowan, who was wearing all black clothing and a headlamp, ran toward them. He shouted, “They went this way, they went this way,” while pointing northeast toward Decena Drive, and added, “I’m chasing them.” Cowan identified himself as the Jeep’s owner, explained that his Jeep had broken down in the driveway, and said there were three men casing vehicles. He then got into his Jeep and drove off toward the hill on Twain Avenue. The officers searched the area but did not find any suspects. At around 4:30 a.m. that same morning, SDPD officers responded to a report of shots fired at the 4500 block of Twain Avenue. Eric H., who lived at one of the Stadium Arms apartment complex buildings on Twain Avenue, had been woken up by a gunshot. He looked out his bedroom window and saw a man crossing Twain Avenue. The man was wearing a dark hoodie and possibly a backpack, as well as a headlamp, which was illuminated. The man stopped in the street with his right arm extended, holding what appeared to be a gun with a light on it. Eric heard the man yell, “Get down, get down,” and “Get away from the car.” Eric then heard another gunshot followed by the man shouting, “Not in my neighborhood.” The man then walked east on 7 Twain Avenue. Eric did not hear other voices or see anyone else. He called 911 within a minute of the second shot, at 4:27 a.m. Eric could not identify the man’s race or describe his hair color. He knew Cowan from living in the same complex. Domingo L., who also lived at the Stadium Arms apartment complex, was getting ready for work at around 4:30 a.m. when he heard a male voice yelling, followed by two gunshots. Afterward, he heard running footsteps that stopped outside his window, then two male voices, with one saying he had been shot in the leg. The sound of running footsteps then went down the sidewalk toward Mission Gorge. Heather M., who lived across the street from the Stadium Arms apartment complex, heard a loud bang at around 4:30 a.m. From her window, she saw a man in a dark hoodie standing in the middle of the street on Twain Avenue with his arm outstretched. He yelled, “Don’t touch that car” several times. Heather saw two other people running west on Twain Avenue—one in the street and one on the sidewalk. After a second bang and a flash, she saw the man in the street walk east on Twain Avenue, then return a minute or two later and enter a complex across the street. Garrett H., who lived at the same complex as Heather, was woken up at around 4:30 a.m. by a loud noise. He looked outside and saw two shadowy figures moving quickly west on Twain Avenue. He heard one of the men shout, “Don’t get into that car” in a deep, angry voice. He believed the individual shouting had a long-barrel firearm that might be a revolver. Shortly after the shouting, he heard a gunshot. When SDPD officers responded to the scene, two of them were the same officers who responded to Cowan’s earlier report of men casing vehicles. They recognized the same black Jeep they had seen earlier, now parked on the 8 street. A bullet fragment and two spent .40 caliber cartridge casings were found at the scene. One of the cartridge casings was found next to Cowan’s Jeep. At around 6:10 a.m. the same morning, Cowan called 911 and reported that someone shot at him while he was driving on the southbound 805 freeway. Cowan said that as he was driving next to the slow lane, a vehicle pulled up on his left side and a passenger sitting in the front pulled out a silver handgun and fired three shots at him. Cowan described the car to officers and gave them its license plate number. There was a bullet hole in the driver’s door of Cowan’s Jeep, and when he opened the door, a bullet fragment fell out. Cowan also told the responding officers about the incident earlier that night when he saw three suspicious individuals at his apartment complex as he was moving his Jeep from the street into the complex parking lot. Cowan referenced his earlier 911 call and said that the officers who arrived at his complex were unable to locate any subjects. Cowan surmised that the freeway shooting occurred in retaliation for his 911 call. He took the officers to the location on the freeway where he believed that the shots were fired, but no cartridge casings were located. Based on Cowan’s description of the vehicle on the freeway and the license plate, investigators located the car that had been following Cowan. After learning the vehicle was stolen, officers arrested the two occupants. Lonnie H. was one of the occupants, and he had a bandage around his left ankle. Photos taken on Lonnie’s phone the morning of the shooting showed a piercing wound on a leg consistent with Lonnie’s wrapped ankle, a tattoo like the one he had, and a pair of pants with a hole above the ankle. Cell phone location records showed that Lonnie had been in the area of Cowan’s 9 apartment around the time of the 4:30 a.m. shooting and that he returned to the area just before 6:00 a.m. The cell phone was on Interstate 805 heading southbound around the same time Cowan’s vehicle was shot at. Surveillance video from April 28, 2020, captured part of the encounter between Lonnie and his shooter at the Stadium Arms apartment complex. Lonnie says, “You going to point that shit at me homie?” and asks the other man if he has a problem with him. The other man tells Lonnie, “Better head that way,” and then repeatedly yells “Don’t go to that car!” Lonnie asks “What the fuck are you doin—[?]” There is a “loud bang” and the shooter continues to yell, “Don’t go to that car! You better hussle [sic]! You better hussle [sic]! Don’t go to that car!” A criminalist compared the two cartridge casings found at the scene of the April 2020 Stadium Arms apartment complex shooting and determined that they were fired from the same firearm. The criminalist listed potential gun manufactures the casings could have been fired from, and the list included Springfield. Lonnie’s DNA was found on the recovered bullet fragment. 4. June 20, 2020 Shooting At around 4:00 a.m. on June 20, 2020, John C. was woken up at his apartment on Decena Drive by what sounded like wrestling. He looked out his window and saw two people grasping each other below the shoulders for less than a minute. He heard a deep, masculine voice say, “Get out of here. Stay away.” While John was dialing 911, he heard a gunshot and saw the person shot immediately fall to the ground, get back up, bounce on one leg two or three times, then fall back on the ground. The shooter extended his arm as if to shoot again but instead turned and walked quickly south. The injured individual was crying out for help and sounded like a younger male. 10  John told an SDPD officer who responded to the crime scene that the shooter was of average build, between five feet eight inches and five feet eleven inches tall, weighed 180 pounds, had a distinctly African American voice, and was wearing a dark hoodie sweatshirt and dark-colored pants.3 Evan H., who also lived on Decena Drive, was woken up by a gunshot and yelling at approximately 4:00 a.m. He looked out his window and saw someone of average build, wearing a dark hoodie and long pants, running south. He estimated the person’s height to be between five feet eight inches and five feet ten inches tall. As this person ran, Evan heard someone else yell, “Help me.” Evan called 911. When SDPD officers responded to a report of a shooting in the 6100 block of Decena Drive, they found a tall, young white man, later identified as 17-year-old Joseph M., slumped over on a path next to some bushes, yelling, with a woman nearby on the phone. One of the officer’s body-worn cameras footage was played for the jury. Joseph had blood on his face, a wound on the back of his head, and a gunshot wound to his left thigh; his femur appeared to be broken or shattered. A video taken from an officer’s body-worn camera at the scene while officers were rendering aid to Joseph was played for the jury. Although Joseph was clearly in pain, he was alert and coherent. Joseph said he had been taking a walk when a man he had never seen before approached while pointing a gun with a laser pointer at him and said, “Don’t move. Get on the ground,” and “I got it cocked and loaded.” The man was wearing green pants and a black jacket with the hood up. Joseph dropped his phone and got on the ground. After Joseph got on the ground, the man pistol-whipped him in the back of head and then shot him once in the thigh. Joseph saw stars after 3 Cowan is a Black man and is five feet eight inches tall. 11 he was pistol-whipped and was not sure whether he lost consciousness. The shooter stole Joseph’s cell phone and fled towards the Stadium Arms apartment complex. Joseph described his assailant as an African American man, approximately six feet five inches tall, weighing 230 pounds, and wearing a dark jacket and green pants. He repeatedly stated that the man was “big.” Medics arrived and took Joseph to the hospital. At the scene, officers collected a .40-caliber cartridge casing and bullet fragment from the dirt near where Joseph was. Joseph’s DNA was on the bullet fragment. 5. June 25, 2021 Shooting On June 25, 2021, between 3:00 and 4:00 a.m., Michael H. was on Decena Drive siphoning gas into a can from a nearby car after the van he had been given ran out of fuel. As Michael was standing on the passenger side of the van siphoning gas, a man in black pants and a black hoodie, whom Michael had never seen before, approached him. He was wearing a miner’s- style headlamp, which he shone on Michael as he yelled, “Get on the ground.” Michael responded, “No. Fuck you,” and threw the hose from the gas can at the man. The man fired a shot at Michael from about 22 feet away, and the bullet passed within a couple of feet of Michael. Michael ran to the open driver’s door of the van, got in, and put the already running van in reverse. As he was backing up, the shooter, who was on the passenger side of the van, shot out the van’s front passenger side tire. He then raised his arms to shoulder height and fired a third shot, which struck the passenger-side panel of the van. Michael sped away northbound on Decena Drive. He did not contact police, testifying that he was “not a cop-caller.” He said he had his 12 own encounters with law enforcement and had previously been convicted of a crime of moral turpitude. Two days after the shooting, SDPD officers were searching for Michael as a suspect in a domestic violence case and ultimately took him into custody on outstanding warrants. After advising Michael of his rights, the officers asked him about the bullet hole they had observed in his van. The officers initially doubted the truth of Michael’s story about the shooting incident, but they were later able to confirm much of it. Michael described the firearm as a black, semi-automatic gun. He described the shooter as a Black male, 30 to 40 years old, about five feet eleven inches tall, and weighing 180 pounds. He said he would recognize the shooter if he saw him again. At the preliminary hearing, Michael identified Cowan as the shooter. He testified that he saw the shooter for five to ten seconds before the headlamp was activated and that it was long enough to recognize him. At trial, Michael again identified Cowan as the shooter. Officers were unable to locate any cartridge casings or surveillance video from the incident. 6. Investigation and Search of Cowan’s Jeeps and Apartment While investigating the June 2020 shooting, SDPD Detective Nicole Mondello realized it had similarities to the April 2020 shooting. Detective Mondello showed a photograph of Cowan to the officers who had responded to the April shooting, and one of them identified Cowan as the reporting party the officers had spoken to just before the shooting, who had been wearing dark clothing and a headlamp. The other officer said he was 80 percent certain that Cowan was the person they had spoken to in the early morning hours on April 28, 2020. 13  Another detective who was investigating the June 2021 shooting searched for other shootings in that area, going back to January 2018. He found that the April 2020 and June 2020 shootings had occurred in the immediate vicinity of the June 2021 shooting—the April 2020 shooting was approximately 350 feet away, and the June 2020 shooting occurred at the same location as the one he was investigating. A search of the phone number used to make the 911 call on April 28, 2020, revealed that the same number had been used to make at least 11 other 911 calls, and in two of those calls, Cowan had provided his last name. In September 2021, SDPD officers executed a search warrant on Cowan’s Jeeps and his apartment. They found a loaded Springfield XD-40 gun under the driver’s seat of one of his Jeeps. The ammunition all had the headstamp “WIN 40 S&W.” The officers also found a backpack containing a headlamp and two cell phones inside of the Jeep. They also found a baseball bat, binoculars, a black zip-up jacket, black cargo pants, and a canister of mace. Inside Cowan’s apartment, officers found a Palmetto Armory PA-15 assault rifle, which had a scope, laser attachment, and a loaded magazine. They also found a light attachment for a handgun. Officers also recovered two firearm magazines—one for the rifle as well as a Springfield Armory magazine for a .40 caliber firearm. The Springfield Armory magazine was loaded with 10 cartridges that all had the headstamp “S&W” on them. Officers also found another headlamp, several boxes of ammunition, a machete in a sheath, and a black hooded sweatshirt in Cowan’s apartment. 7. Cell Phone Location Evidence Call detail records showed that Cowan’s cell phone regularly pinged off the cell phone tower near his apartment on Twain Avenue. There were 205 14 occasions when Cowan’s cell phone was not connected to the network for at least 10 minutes, with almost half of the connection gaps occurring between the hours of 11:00 p.m. and 5:00 a.m. The connection gaps often occurred after Cowan had called 911 or the SDPD non-emergency line. The reasons for the connection gaps could have been because the phone was in airplane mode or turned off. The fastest way to terminate a cellular connection is to put the phone in airplane mode, and then it cannot be tracked if moving. On May 21, 2019, the day Mario Bullard was killed, Cowan’s phone connected to the cell phone site near his apartment between midnight and 2:53 a.m. At 2:53 a.m. there was a connection gap that lasted about two minutes. The cell phone then moved in a large, clockwise circle through surrounding neighborhoods before returning to Cowan’s neighborhood at 4:08 a.m. On April 28, 2020, around the time of the shooting of Lonnie H., Cowan’s cell phone remained in his neighborhood until 4:32 a.m., when a connection gap began that lasted for one hour and 22 minutes. At 5:55 a.m. the phone reconnected and was seemingly traveling south towards National City. Cowan called 911 from near the intersection of Interstate 805 and State Route 54. This movement was consistent with Cowan’s 911 call reporting that someone was shooting at him in his vehicle that morning. On June 20, 2020, the day Joseph M. was shot, Cowan’s cell phone was connected to the cell phone tower in his neighborhood between midnight and 6:00 a.m. On June 25, 2021, the day Michael H. was shot at, Cowan’s cell phone connected with cell phone towers in his neighborhood between midnight and 5:42 a.m. The phone then began to move north into the Kearny Mesa area. 15  8. Firearm and Toolmark Comparison Evidence SDPD forensic firearm and toolmark examiner Katherine Todd testified as an expert on behalf of the prosecution. She is a member of the Association of Firearm and Toolmark Examiners (AFTE), the premier firearm and toolmark examiner professional organization for practitioners in the field, and she described what she does as a trained firearm and toolmark examiner. Todd explained that each firearm has specific surface contours unique to that firearm, and when ammunition comes into contact with those surfaces, it transfers those details onto the cartridge casing or bullet. When she compares the features, or characteristics, imprinted on the ammunition to each other or to test-fires from a specific gun, she can potentially pattern- match those characteristics to determine whether a particular gun fired that ammunition. She explained that with a cartridge casing, the class characteristics specific to it would be the caliber, shape of the firing pin, and general category of the breech face impression, which could be lines, circles, or lines that intersect in a crosshatch pattern. Every time Todd conducts a comparison analysis, a second examiner then independently conducts their own comparison analysis, and if the conclusions match, they consider that a verified answer. When an examiner performs a comparison analysis, five different conclusions can be reached: (1) identification, which means two bullets were fired by the same gun; (2) exclusion, which means two different guns were used to fire two different bullets; and (3) inconclusive, which is broken down into three categories: (a) there is some agreement, “leaning towards an identification, but there is not enough information there to render a definitive conclusion”; (b) the results leaned “towards an exclusion, but you don’t have enough information or can’t rule out certain variables in order to say 16 conclusively they were excluded”; and (c) “right down the middle that there is not enough information to work with so it is not pushing you in one direction or another.” Todd said that an inconclusive was an acceptable conclusion because there were many different variables that had to be accounted for when making a comparison, including the type of ammunition used. Todd explained that when performing firearms and toolmark comparisons, the characteristics examiners look at are objective—they belong to the bullet or cartridge case—but the interpretation or how much weight the characteristics are given during the analysis or evaluation is subjective. This is true whenever an individual is interpreting data and also applies to other fields, such as DNA or fingerprint analysis: “All science if it asks for an individual to interpret data would be considered subjective.” Todd acknowledged there is criticism of the firearm and toolmark comparison field. In 2016, the President’s Council of Advisors on Science and Technology (PCAST) established types of studies they thought were best designed to establish foundational validity. PCAST did a review of the research involving firearms and toolmarks comparison, and of the eight studies that they took into consideration, they determined that only one met their criteria. PCAST concluded that to meet foundational validity, there had to be at least one more appropriately designed study to show that the results were repeatable. Todd explained that since PCAST’s 2016 report, several other studies had been designed in the manner PCAST advised, with a recent review finding false positive error rates ranging from 0.11 to 1.5 percent. For her work on this case, Todd examined expended cartridge casings from the May 2019, April 2020, and June 2020 shootings. Todd compared the two casings from the April 2020 shooting to the casing from the June 2020 shooting under a microscope and determined that the same firearm was 17 responsible for firing all three of the cartridge cases. Todd then looked at the four casings found at the May 2019 crime scene and compared one of them to the casing from the June 2020 shooting, concluding that the two had been fired from the same firearm. She then compared the four cartridge cases from the May 2019 shooting to each other and determined they were all fired from the same firearm. Todd thus opined that the casings from all three of these shooting incidents were fired from the same firearm. In September 2021, Todd received and examined the Springfield XD-40 found in Cowan’s Jeep. After Todd confirmed Cowan’s gun was operable, she test-fired six rounds—three rounds using ammunition similar to the cartridge casing recovered from the June 20, 2020, shooting and three rounds using ammunition similar to the casings recovered from the May 21, 2019, shooting. She then compared the unique marks on the test-fired casings with those on the evidence casings. Todd concluded that Cowan’s Springfield XD- 40 was the gun that fired the casings recovered from the shooting scenes on May 21, 2019, April 28, 2020, and June 20, 2020. A second examiner, who did not know the results of Todd’s analysis, independently reached the same conclusion. Todd also compared the test-fired bullets from Cowan’s Springfield XD- 40 to the bullet fragments that were recovered from all four shootings, but the results were all inconclusive. Todd explained that the results were inconclusive because, due to the level of damage and distortion to the bullet fragments, she did not have enough information to either conclusively identify or exclude the fragments as being fired from Cowan’s gun. 18 B. The Defense 1. May 20, 2019 Mario Bullard Homicide Janet A. lived in an apartment on Vandever Avenue and testified about the May 21, 2019 shooting. That morning at around 2:30 or 3:00 a.m., she heard gunshots and looked out the window. She saw someone leaving the area and described the person as a man who was about five feet six inches or five feet seven inches in height, white, wearing black pants, black shoes, a black sweatshirt with a white marking on the front, and a hood over his head and carrying a black backpack. Officers who responded to the crime scene conducted a curbside lineup, and Janet identified the person she thought she saw leaving the scene of the shooting. The person she identified was a woman who looked like a “tomboy.” At trial, Janet testified that she had never seen Cowan before and that he was not the individual she saw that night after the gunshots. 2. Expert Testimony on Scientific Methodology Relating to Firearm and Toolmark Comparison Evidence David Faigman, the chancellor and dean of the University of California College of Law, San Francisco, and a professor in the Department of Psychiatry at the School of Medicine at the University of California, San Francisco, testified for the defense as an expert in scientific methodology. He served as a senior advisor to PCAST on its report evaluating the foundational validity of several forensic fields, including firearm and toolmark comparison. Faigman acknowledged that he was not a firearm and toolmark examiner, but he was familiar with the job of a firearm and toolmark examiner, AFTE, and the theory and methodology of firearm and toolmark examinations. 19  Faigman explained that there is no specific protocol for conducting a firearm comparison. Instead, the field relies on a “theory” from AFTE based on the concept of “sufficient agreement” to declare a match. “Sufficient agreement” is a subjective view, and unlike in DNA analysis, firearm identification opinions are not accompanied by any known probabilities or statistical weight. In 2016, PCAST concluded that the field of firearm and toolmark comparison lacked foundational validity because there was little understanding of its error rates or the standards for declaring a match. It found that most pre-2016 studies were set-to-set comparisons, which it deemed worthless for establishing validity because their closed-set design made the task artificially easy and did not allow for the calculation of a meaningful error rate. PCAST called for more black-box studies, in which examiners are tested on samples for which the “ground truth” (whether they match or not) is known to researchers. Faigman stated that a central issue in the black-box study that had been conducted was the handling of inconclusive results. While an inconclusive finding is a reasonable outcome in casework, it cannot be a correct answer in a controlled study where the true answer is known. The researchers in the firearm and toolmark comparison studies improperly treated inconclusive results as correct answers in their calculations, resulting in a reported error rate of around one percent. Faigman opined that if the high number of inconclusive findings in these studies were correctly counted as errors, the error rate for firearm comparison would be substantially higher. Citing one study in particular, he stated that properly accounting for inconclusive results would raise the error rate to as high as 54 percent for bullets and 44 percent for cartridge cases. 20  Faigman opined that firearm and toolmark comparison using class characteristics seems to be fairly accurate, but the research does not support the ability to identify a cartridge casing or bullet as being fired from a specific firearm. C. Jury Question and Response During deliberations, the jury sent a note to the court that said, “Please expand upon the definition of ‘intent to kill’.” Defense counsel noted that she had discussed with the prosecutor that they both thought CALCRIM No. 600 included the definition of intent to kill.4 Defense counsel further stated that she thought she and the prosecutor could agree to an expansion of the definition. The court stated: “I don’t think it is appropriate to expand definitions, frankly. . . . I am happy to have you guys talk to each other and propose something. But to me, it’s in the jury instruction, and so just refer 4 It did not. The written instruction on attempted murder given to the jury was as follows: “To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. [¶] A person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control. On the other hand, if a person freely and voluntarily abandons his or her plans before taking a direct step toward committing the murder, then that person is not guilty of attempted murder.” (CALRCIM No. 600, italics added.) 21 them back to the jury instruction.” Defense counsel agreed. The prosecutor was also hesitant to give the jury anything more because the definition of intent to kill was in CALCRIM No. 600 as well as in the charge of homicide, but she could see the reason for the jury’s request. She thus requested that the court’s response to the jury question also refer them to CALCRIM No. 200, which provides: “Some words or phrases have legal meanings. If they are not defined, then you use their ordinary, everyday meaning.” The trial court