People v. Barrios CA2/5

Filed 4/8/15 P. v. Barrios CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B255151

Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. VA130170)
v.

JOSE BARRIOS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Patrick
T. Meyers, Judge. Affirmed.
Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi,
Deputy Attorney General, and Daniel C. Chang, Deputy Attorney General, for Plaintiff
and Respondent.
_____________________________
 The jury found defendant and appellant Jose Barrios guilty of the first degree
murder of Robert Guerrero. (Pen. Code, § 187, subd. (a).) It found true the allegations
that defendant personally discharged a firearm causing great bodily injury and death.
(Pen. Code, § 12022.53, subd. (d).) The trial court sentenced defendant to 50-years-to-
life in prison, comprised of a term of 25-years-to-life for the murder conviction and 25-
years-to-life for the firearm enhancement.
Defendant contends that the trial court abused its discretion by admitting irrelevant
and prejudicial evidence of possession of firearms not used in the murder, drug use, and
character evidence unrelated to the crime, in violation of Evidence Code 352,1 and his
federal constitutional right to due process. He further contends that trial counsel rendered
ineffective assistance to the extent that counsel failed to object to the admission of this
evidence, and that the cumulative errors prejudiced defendant.
We affirm the judgment.

FACTS

Events Prior to Guerrero’s Murder

Jessica Garcia and defendant began dating in June 2011. Defendant was jealous
and possessive of Garcia. In August 2011, Garcia told defendant that she was pregnant
with his child. Defendant became very angry and did not believe the child was his. The
couple argued; defendant pulled out a gun and held it to Garcia’s head. He said he would
kill her if she did not abort the pregnancy.

1 All further statutory references are to the Evidence Code, unless otherwise
stated.

2
 On October 22, 2011, Guerrero, who was defendant’s friend, sent Garcia several
text messages. Defendant had introduced Garcia to Guerrero, and she saw him a few
times when Guerrero helped defendant move. Guerrero wrote in one text, “Hey send me
a pick 4 me only of ur-self . . . Only for me.” Another text read, “Yeah I think ur sweet
heart between us I’ll never say nothen it’s only between us send me a hot pick of you.”
In another text, Garcia wrote, “You’re kool I like you keep our friend ship between us.”
Garcia told defendant about the texts.
Sometime after February 2012, Garcia obtained a restraining order against
defendant and ended their relationship. Their daughter was born on April 26, 2012.
Garcia did not tell defendant where she was giving birth and did not want him present.
Defendant came to the hospital unannounced. He started crying, and said, “Why didn’t
you tell me you had my baby.” He took Garcia’s cell phone and went through her text
messages. Defendant found the texts from Guerrero and became very angry. Defendant
screamed at Garcia about the texts and said he was going to “murder that motherfucker.”
Defendant called several people on Garcia’s cell phone, stating he was going to “kick
their ass for talking to his girl.”
Garcia suffered from postpartum depression after giving birth. In May 2012, the
Department of Social Services took her daughter. Garcia’s mental condition required
institutionalization. Garcia was under the care of a psychiatrist at the time of the trial.
She blamed defendant in part for losing custody of her daughter. Garcia went to court
several times regarding her daughter. Defendant also attended the court hearings,
dressing in a suit and tie.
Benjamin Rodriguez lived about four houses down the street from where
defendant and Garcia had lived together. He had known Garcia since high school and
saw defendant almost every day. Sometime in 2012, defendant told Rodriguez he did not
get along with Guerrero because Guerrero disrespected him in front of his daughter and
his mother. Defendant told Rodriguez that he warned Guerrero, “Don’t let me catch you
slippin’ in the ’hood.” Defendant also told Rodriguez he had threatened a man with a
shotgun after the man “mess[ed] around with his baby’s mom.”

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The Murder

Guerrero was living with his girlfriend, Leticia Reyes, on February 1, 2013. At
around 4:30 p.m., Reyes asked Guerrero to go to Stater Bros. Market to pick up groceries
for dinner. Guerrero drove to the store in his turquoise Toyota Tacoma.
Defendant also went to Stater Bros. Market at around 4:00 p.m. or 4:30 p.m. that
day. He went to buy candy for his girlfriend, Caryna Villalon. Defendant had attended a
court hearing relating to his daughter that day, and was wearing a suit and tie.
Surveillance footage from the Stater Bros. Market showed Guerrero’s truck
entering the parking lot at 4:28 p.m.2 Guerrero went into the market alone at 4:35 p.m.,
and immediately withdrew cash from an ATM inside. Defendant entered the market at
4:48 p.m., and went straight over to Guerrero, who was in the checkout line paying for
his purchases. Defendant put his arm around Guerrero, and initiated a “fist bump.”
Defendant continued to stand beside Guerrero as he paid for his groceries. When
Guerrero finished checking out, defendant began to walk toward the exit closest to the
counter. Guerrero followed him for a few steps and then turned around and walked
toward another exit at the other end of the market. Defendant followed, walking slightly
behind Guerrero. The two men walked into the parking lot together at 4:49 p.m. The
surveillance video did not show defendant making purchases or carrying a bag out of the
market. An outside camera showed Guerrero opening the passenger door of his truck for
another man at 4:50 p.m. The man appeared to be defendant, although the footage did
not show his face. The man was wearing a suit and was defendant’s height and build.
The man got into the vehicle, and Guerrero closed the passenger door behind him.
Guerrero then went to the other side of the truck and got into the driver’s seat. At 4:51
p.m., Guerrero and the man left the parking lot in the truck.

2 The surveillance video was played for the jury.

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 Marlene Contreras lived about a mile from Stater Bros. Market. Her dogs began
barking at about 4:54 p.m. She looked out her window and saw a blue truck slow down
and park on the street outside. As she walked away from the window, Contreras heard
three gunshots followed by the screeching of tires. When she looked outside again, the
truck was no longer there, and a man was lying on the ground. Contreras called 911.3
At about 4:55 p.m., Maximina Dominguez was walking her dog when she saw
Guerrero’s blue truck, which was parked next to the sidewalk facing her. Dominguez
saw two men talking inside the truck. She then heard gunshots, and the man in the
passenger seat pushed Guerrero out of the truck. The man moved over to the driver’s
seat and began to drive away. He drove about for about six feet and then stopped and
stared at Dominguez. She was afraid he would shoot her, too. Dominguez got a good
look at the shooter, as he looked right at her and she focused on his face. The man then
drove away.
Guerrero was lying in the middle of the street face down. He had suffered three
gunshot wounds—one to the head, one to the abdomen, and one to his hand. He was
pronounced dead at 5:08 p.m.
Frank Nastasi lived about three quarters of a mile from Stater Bros. Market. At
about 5:00 p.m., Nastasi heard the sound of tires screeching outside his house. He looked
out and saw a Toyota pickup parked across the street. A man got out of the driver’s side
door and slammed it shut. The man seemed very angry. He appeared to be a light
skinned Hispanic, approximately 5’10” tall, 180 pounds, and between 25 and 30 years of
age.4 The man’s hair was black and slicked back. Nastasi looked at the man for about
five seconds before the man jumped over a four-foot high fence. Defendant lived two
blocks away from the fence at the time.

3 The 911 call was played for the jury.

4 Defendant is a male Hispanic with dark hair, light skin, and approximately six
feet in height. At the time Guerrero was killed, defendant was 21 years old. At the time
of defendant’s arrest on May 15, 2013, he weighed approximately 170 pounds.

5
The Investigation

After Whittier Police Detective Chad Hoeppner and forensic specialist Chris Kraft
arrived at the crime scene, they recovered $300 in $20 denominations, a Bank of America
ATM receipt from Stater Bros. Market, and an ATM card. The police went to Stater
Bros. Market and obtained the surveillance video for the time beginning at 4:30 p.m. that
day.
Whittier Police Officer Esteban Medina located Guerrero’s truck. He noticed that
the front windows were not tinted, and the driver’s side window was rolled down. (3RT
1257-1258.) He approached the truck and saw blood in the center console, steering
wheel, and driver’s seat. Police discovered a .45 caliber shell casing on the dashboard,
and another in the back seat. There were two .45 caliber shell casings and a live .45
caliber round found on the front passenger floorboard area during a subsequent
search. Police lifted several fingerprints from the truck and took swabs for DNA
analysis. Neither the fingerprints nor the DNA sample matched defendant. All results
either matched Guerrero or were inconclusive.
A week after the murder, police showed Dominguez a photo six-pack that
included defendant. Dominguez said defendant looked like the man in the truck, but the
man in the truck had a rounder face. She could not identify the person in the truck from
the six-pack.
Police searched Villalon’s house on May 15, 2013. They seized two suits, which
both tested negative for blood. Police also found a gun holster, a 9mm magazine clip
containing six live 9mm bullets, an empty box of Magtech ammunition, and body armor
in receptacles at the rear of the residence.
Also on May 15, 2013, police stopped defendant while he was driving a red Acura
Integra. They searched the car and found a box of .45 caliber ammunition and a Ruger
.22 handgun.

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 Detective Hoeppner interviewed Reyes and Garcia on May 15, 2013. Reyes
mentioned defendant in the interview. Garcia provided Detective Hoeppner a photo of
defendant wearing body armor and a gun consistent with a .45 caliber handgun. She gave
the police her cell phone, which still contained the October 22, 2011 text messages from
Guerrero.

Trial

Prosecution

Dominguez identified defendant in court as the shooter. She explained that she
had not initially identified defendant because she feared retaliation.
Garcia and Reyes viewed the surveillance video from Stater Bros. Market and
identified Guerrero and defendant in the video. Nastasi testified that defendant “look[ed]
like” the man he saw, and that “[h]e could be him.”
Rodriguez testified that he jokingly asked defendant whether he “smoked”
Guerrero. Defendant told him not to say that. Rodriguez said he knew someone else had
killed Guerrero.
Villalon viewed the surveillance video from Stater Bros. Market, and identified
defendant entering and exiting the store. She said that defendant returned from the
market with a bag of M&Ms and other chocolates. He went to her grandmother’s house
with her at around 5:00 p.m.

Defense

Edward Acosta, a private investigator, testified on behalf of the defense. He
interviewed Nastasi, who remembered the man he saw wearing casual clothing, not a suit
and tie.

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 DISCUSSION

Standard of Review and Applicable Law

All of defendant’s contentions concern the admission of evidence that he claims
was more prejudicial than probative. Pursuant to section 352, the trial court has the
discretion to 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.”
A trial court has broad discretion to determine both the relevance of evidence and
whether its prejudicial effect outweighs its probative value. (People v. Jones (2011) 51
Cal.4th 346, 373.) “‘The “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against defendant as an
individual and which has very little effect on the issues. In applying section 352,
“prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Bolin (1998)
18 Cal.4th 297, 320.)
“[T]he admission of evidence, even if erroneous under state law, results in a due
process violation only if it makes the trial fundamentally unfair. [Citations.] Absent
fundamental unfairness, state law error in admitting evidence is subject to the traditional
[People v.] Watson [(1956) 46 Cal.2d 818, 836] test: The reviewing court must ask
whether it is reasonably probable the verdict would have been more favorable to the
defendant absent the error. [Citations.]” (People v. Partida (2005) 37 Cal.4th 428, 439
(Partida).)

Evidence of Other Firearms Used in Prior Uncharged Acts

Garcia testified at trial that defendant held a gun to her head when she was
pregnant because he questioned whether the baby was his. She also testified that
defendant shot her with a BB gun on another occasion. Rodriguez testified that on one

8
occasion he was afraid of defendant because he believed that defendant had a gun, and
that he heard defendant had brought guns to school. Defendant told Rodriguez he used a
shotgun to threaten a man who was “messing around with [defendant’s] baby’s mom.”
Defense counsel did not object to this testimony from Garcia or Rodriguez. On appeal,
defendant contends that it would have been futile to object to the testimony because the
trial court had overruled all of the defense’s objections relating to other firearms
evidence. Alternatively, he claims that counsel was ineffective for failing to object at
trial, and that the firearms evidence was inadmissible because it was irrelevant and
prejudicial.
We reject defendant’s argument that it would have been futile to object because
the trial court had overruled other objections relating to firearms. As we discuss below,
those objections were to the relevance of defendant’s possession of firearms evidence.
The testimony in question here related to specific instances of conduct with firearms and
a BB gun. Defendant could have objected on the ground that Garcia and Rodriguez’s
testimony was inadmissible because it concerned prior uncharged acts or character
evidence. It would not be futile to object on a different ground, as it would both provide
another perspective from which the trial court could view the admissibility of the
evidence, and preserve the issue for appellate review. Absent futility, defendant’s failure
to make a specific and timely objection as to those issues forfeits his arguments on
appeal. (Partida, supra, 37 Cal.4th at pp. 433-434.) We therefore turn to defendant’s
contention that the failure to object demonstrates ineffective assistance of counsel.
“To secure reversal of a conviction upon the ground of ineffective assistance of
counsel under either the state or federal Constitution, a defendant must establish (1) that
defense counsel’s performance fell below an objective standard of reasonableness, i.e.,
that counsel’s performance did not meet the standard to be expected of a reasonably
competent attorney, and (2) that there is a reasonable probability that defendant would
have obtained a more favorable result absent counsel’s shortcomings.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham), citing Strickland v. Washington
(1984) 466 U.S. 668, 687-694 (Strickland); Williams v. Taylor (2000) 529 U.S. 362, 391-

9
394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ([Strickland, supra, at p.
694]; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (Cunningham, supra, at p. 1003.)
The Supreme Court has held that “[t]he performance component [of the analysis] need
not be addressed first. ‘If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course should be
followed.’ (Strickland[, supra,] 466 U.S. at p. 697.)” (Smith v. Robbins (2000) 528 U.S.
259, 286, fn. 14.)
“‘If the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266.) Otherwise, the claim is more appropriately raised in a petition for writ of
habeas corpus.’ (People v. Carter (2003) 30 Cal.4th 1166, 1211.)” (People v. Gray
(2005) 37 Cal.4th 168, 207.)
Here, the record is silent regarding the reason for counsel’s failure to object.
Accordingly, the issue is more appropriately raised in a petition for writ of habeas corpus.
Counsel may have concluded that an objection would have been without merit on the
basis that a defendant’s possession of a weapon is admissible when it is probative on
issues other than the defendant’s propensity to possess weapons. (See, e.g., People v.
Jablonski (2006) 37 Cal.4th 774, 821-823; People v. Cox (2003) 30 Cal.4th 916, 956,
disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
People v. Smith (2003) 30 Cal.4th 581, 613-614; People v. Gunder (2007) 151
Cal.App.4th 412, 416, called into doubt on another point in People v. Moore (2011) 51
Cal.4th 386, 410-412.)
Section 1101, subdivision (b), permits the admission of evidence of uncharged
misconduct when it is “relevant to establish some fact other than the person’s character or
disposition,” such as motive or intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
Garcia’s testimony about the incident in which defendant threatened her with a gun

10
tended to establish defendant’s jealously, which relates to his motive and intent to kill
Guerrero. The same can be said for Garcia’s description of the incident with the BB gun
and Rodriguez’s testimony regarding defendant’s statement that he used a weapon to
threaten someone who was “messing around with [defendant’s] baby’s mom.”
In any event, defendant cannot satisfy the second prong of ineffective assistance of
counsel, because introduction of the evidence in question does not amount to prejudicial
error. Evidence was presented that defendant had multiple motives to kill Guerrero—he
was intensely angered by Guerrero’s advances to Garcia and he was upset that Guerrero
had disrespected him in front of his family. Defendant told Garcia that he would kill
Guerrero, and told Rodriguez that he warned Guerrero not to let defendant catch him
“slipping.” Three witnesses, including Villalon—defendant’s alibi witness and
girlfriend—identified defendant as being the man in the surveillance video from Stater
Bros. Market with Guerrero. The video showed that defendant made no purchases at the
market and stayed with Guerrero the entire time. The jury could reasonably find that
defendant’s alibi that he went to the market for the purpose of buying candy for his
girlfriend, and that he, in fact, purchased candy and returned home right afterwards, was
contrived. The video shows that defendant was the last person with Guerrero before his
death, and that he was in Guerrero’s truck with him just before Guerrero died. Guerrero
was killed a short distance from the market minutes later. Contreras saw a blue truck
slow down and park on the street outside her house. She heard three gunshots followed
by the screeching of tires. When Contreras looked outside, the truck was gone, and a
man was lying on the ground. Dominguez saw defendant argue with Guerrero in
Guerrero’s truck. She heard gunshots, and saw defendant push Guerrero’s body out of
the driver’s side of the truck. She got a very good look at defendant when he stopped the
truck about six feet away from her, and was able to positively identify him at trial.
Nastasi saw a man who “looked like” defendant get out of Guerrero’s truck, angrily slam
the door, and then jump over a fence that was only two blocks from defendant’s house.
Bullets discovered in defendant’s car were of the same caliber as the bullets and casings

11
recovered from Guerrero’s truck, and a photo of defendant pictured him with a firearm
consistent with a .45 caliber gun.
In light of these facts, admission of Garcia and Rodriguez’s testimony was
harmless under both the state and federal constitutional standards. Because defendant
suffered no prejudice, his ineffective assistance of counsel claim necessarily fails as well.
(Strickland, supra, 466 U.S. at pp. 687-688, 691-692.)

Firearms Evidence Seized from Defendant’s Residence and Car

The defense filed a pretrial motion in limine pursuant to sections 350 and 352
seeking to exclude evidence of the gun holster, 9mm magazine clip containing live 9mm
bullets, the empty box of Magtech ammunition, and body armor found in defendant’s
residence, and the Ruger .22 handgun found in his car. The prosecution argued that the
firearms evidence should be admitted because it was relevant to show that defendant had
access to firearms. The defense countered that where use of a specific firearm is alleged,
evidence of other firearms not used in the crime is not admissible. The trial court
allowed the firearms evidence to be admitted on the basis that it was uncertain whether
the .45 caliber bullets and casings recovered at the scene could be fired from one of the
other weapons that were seized. The evidence of other firearms was admitted. The
prosecution offered no evidence that a .45 caliber bullet could be fired from one of the
other firearms that was seized.
All bullets and casings recovered from the scene were .45 caliber. In the absence
of expert witness testimony that the .45 caliber bullets could be fired from any of the
other guns that were seized, we cannot conclude that the evidence presented directly
linked the seized firearms evidence to the murder, and could be admitted on the basis that
one of those firearms could have fired the bullets that killed Guerrero. (§ 403, subd.
(a)(1) [When “[t]he relevance of . . . proffered evidence depends on the existence of [a]
preliminary fact,” the “proponent of the proffered evidence has the burden of producing
evidence as to the existence of the preliminary fact, and the proffered evidence is

12
inadmissible unless the court finds that there is evidence sufficient to sustain a finding of
the existence of the preliminary fact”].)
However, we may affirm “on any basis supported by the record even if not
expressly relied upon by the trial court.” (CUNA Mutual Life Ins. Co. v. Los Angeles
County Metropolitan Transportation Authority (2003) 108 Cal.App.4th 382, 397.) The
firearms evidence was relevant to other issues related to the murder, including Garcia and
Villalon’s credibility. (See People v. Stern (2003) 111 Cal.App.4th 283, 296 [evidence of
uncharged crimes is admissible for purpose of determining credibility of a witness].)
Garcia testified to an instance of jealousy and violence when defendant learned she was
pregnant and suspected that the baby was not his, in which he threatened her with a gun.
As we discussed, defendant’s prior act is admissible to show motive. There were
possible issues with Garcia’s credibility because she had suffered from psychological
problems, and blamed defendant, in part, for losing custody of her daughter. Evidence
that defendant had firearms corroborated Garcia’s story, bolstering her credibility.
Villalon, who was defendant’s only alibi witness, testified that she had never seen
defendant with a gun. The fact that the firearms evidence at issue was confiscated from
defendant’s car and the residence where they both lived undermined Villalon’s credibility
and defendant’s alibi. It was not an abuse of discretion for the trial court to admit the
evidence.
Regardless, in the context of this case the evidence of defendant’s possession of
other weapons or ammunition had no likelihood of provoking the type of emotional
response by jurors that invokes section 352. The jury was aware that a box of .45 caliber
ammunition—the same caliber as the casings and live round found in Guerrero’s truck—
was found in defendant’s car, and that defendant had given Garcia a photo of himself
holding a gun consistent with a .45 caliber firearm. This evidence was more than
sufficient to alert the jury to defendant’s possession of firearms. (See People v. Riser
(1956) 47 Cal.2d 566, 577-578 [no prejudice in admitting evidence of other firearm and
ammunition possessed by defendant when jury would have concluded from other,
properly admitted evidence that defendant possessed firearms], overruled on other

13
grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649.) Finally, as we discussed
above, the evidence of defendant’s guilt is overwhelming in this case.

Evidence of Drug Use

During direct examination of Rodriguez, the prosecution asked whether he ever
saw defendant use methamphetamine. Defense counsel objected on the basis that it was
irrelevant and prejudicial character evidence. The court held a sidebar discussion, and
asked the prosecutor for the relevance of the drug testimony. The prosecutor responded,
“[I]t’s my understanding through this witness that [defendant] was using
methamphetamine almost every day, which would—it could explain his actions on this
particular day, and so that’s why I’m eliciting this testimony or seeking to elicit this
testimony.” The trial court overruled defense counsel’s objection, stating, “I’ve weighed
it. It’s out there. I do not disagree, but I think the affects [sic] of meth are increasingly, if
not entirely, understood, and I’ll permit the inquiry. [¶] I’ve weighed the probative value
against the prejudicial impact. I do not intent [sic] to spend a lot of time on drugs on a
case that doesn’t have drug allegations.” The prosecutor elicited testimony from
Rodriguez that defendant smoked “weed” and was high on methamphetamine almost
every day. He asked Rodriguez: “And how would he act when he smoked
methamphetamine?” Rodriguez responded, “Honestly, not too different than—it wasn’t
very much of a change in his personality or anything like that.”
Evidence of a defendant’s prior drug use is inadmissible where it “‘tends only
remotely or to an insignificant degree to prove a material fact in the case . . . .’
[Citation.]” (People v. Cardenas (1982) 31 Cal.3d 897, 906.) “[T]he cases which have
upheld admission of evidence of an accused’s drug addiction involved crimes where
obtaining narcotics was the direct object of the crime or where a violation of Health and
Safety Code was charged.” (People v. Holt (1984) 37 Cal.3d 436, 450.)
Here, no evidence was presented that obtaining narcotics was the direct object of
the crime, and no violation of the Health and Safety Code was charged. There was no

14
evidence tending to show that methamphetamine use causes violent tendencies generally,
or that defendant became violent when he used drugs. No evidence was presented that
defendant used drugs on the day of the murder. The effect of defendant’s possible use of
drugs on his state of mind was speculative, and it was error to admit it.
The admission of the drug testimony was unlikely to have had a significant impact
on the jury, however. The testimony regarding defendant’s drug use was very brief, and
Rodriguez specifically testified that when defendant used drugs it had no measurable
effect on his personality and actions. As we have already discussed, the evidence of
defendant’s guilt was vast. Under the circumstances, the admission of Rodriguez’s
testimony regarding defendant’s drug use did not render the trial “fundamentally unfair,”
and it is not “reasonably probable the verdict would have been more favorable to the
defendant” in its absence. (Partida, supra, 37 Cal.4th at p. 439.)

Jail Communications

Defendant made several calls to a person called “Eggman” while he was
incarcerated. He asked Eggman if he still had “those two things.” Eggman responded
that he had gotten rid of them. Defendant asked, “Where’s the cash at? Why the fuck
would you get rid of them fool?” Eggman replied, “Fuck you. You sold my you gave
fucking Jigga my twenty-five.”
Defendant also called someone named Moody. He asked Moody to “call fucking
Eggman fool, and tell fool to drop down to his knees dog and he better pray that I don’t
fucking get out of here dog because I’m a treat that fool like the enemy fool when I do.”
The prosecutor sought admission of the calls to Eggman and Moody on the theory
that they were discussing the disposal of guns. He asserted that the “twenty-five”
mentioned was a reference to a .25 caliber gun. Defense counsel objected on the grounds
that the evidence was irrelevant, prejudicial, and cumulative. The prosecutor reiterated
his argument, stating that because the murder weapon was never found in this case, the

15
calls could explain what happened to it. The court stated that the argument was “a big
stretch,” but admitted the calls.
The calls arguably have some relevance to establish defendant’s willingness to
suppress evidence, which supports an inference of a consciousness of guilt. The calls
also showed defendant’s anger and willingness to threaten violence, as he had exhibited
in connection with Guerrero. The potential for prejudice flowing from admission of the
calls, however, is minimal. The record contains ample evidence, properly admitted, of
defendant’s angry and threatening conduct. Defendant became enraged and threatened to
kill Garcia while holding a gun to her head when she was pregnant. He displayed anger
at Guerrero both for disrespecting him in front of family and for sending amorous texts to
Garcia, and told Garcia he would kill Guerrero in the latter instance. Defendant’s phone
threats against Eggman were mild in comparison to these incidents. (See, e.g., People v.
Kipp (1998) 18 Cal.4th 349, 372 [risk of prejudice “was not unusually grave” where the
disputed evidence was not “significantly more inflammatory than the [charged]
crimes”].) Finally, any error in admission of the calls was harmless under both state and
federal constitutional standards, given the overwhelming evidence of defendant’s guilt.
Defendant also made several calls to Villalon. In the first call he told her, “I don’t
want you to [sic] being with no guys.” Villalon responded, “Oh my God, why do you do
that to me? You do that every fucking conversation that we have, you know how much
that fucking bothers me.” Defendant responded, “I wouldn’t want another guy to take
you from me.” Villalon replied, “I know but you need to stop, it gets on my nerves, I’m
already sad enough, for you to do that to me every fucking phone call.”
In another call to Villalon, defendant said, “I don’t want no fools over there trying
to help you out just cuz.” Villalon told him to “shut up,” and started crying. Defendant
capitulated, but added, “I know no matter what nobody’s going to take you away from
me.”
Villalon also wrote defendant a letter while he was in jail. In it she wrote, “My
mom is not going to let you hurt me. If she knew what’s actually happened, she would
have killed you a long time ago . . . . But you always try to make me seem like the bad

16
person, like the cheater, the liar . . . .You take it to the point where you take away my
things, like I’m some little girl.” The letter stated that defendant had taken her phone, her
food coupons, her glasses, “[a]nd my dog. Dude, you take the one thing you know means
everything to me, and you do it to make me suffer.”
Defense counsel objected to admission of the calls to Villalon on the basis that
they were prejudicial and cumulative, and admitted for the purpose of maligning
defendant’s character. The trial court allowed the evidence because “the nature of the
defendant’s relationship with his girlfriends [was] kind of customary and habitual.” The
defense did not object to admission of Villalon’s letter.
Defendant argues that admission of the calls and letter was an abuse of discretion
because the evidence was inadmissible character evidence that was cumulative, and more
prejudicial than probative. Defendant preserved his objection to the calls on the ground
that they were character evidence. He contends that counsel’s lack of objection to the
letter should be excused because objection would have been futile. Once again, we
disagree that it would have been futile to object. The calls and the letter covered different
subjects, and there is no reason to conclude an objection as to one would dictate the
outcome of an objection to the other. Nevertheless, we proceed to the merits of the
admissibility of Villalon’s letter as well, in light of defendant’s ineffective assistance of
counsel contention.
Defendant’s phone calls with Villalon and Villalon’s letter to defendant were not
inadmissible, as a matter of law, under section 352. Defendant’s jealousy of Villalon
tends to corroborate Garcia’s testimony as to how defendant reacted to her. His conduct
toward both women was jealous and manipulative. Given Garcia’s mental infirmity, the
prosecution was entitled to bolster her credibility with corroborating evidence. Villalon’s
letter was admissible as to her credibility, in that she purported to support defendant’s
alibi, while in the letter she vents as to his jealous, manipulative and demeaning behavior.
Finally, as we have held earlier, given the overwhelming evidence of guilt,
admission of the phone calls and letter, if error, was harmless.

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 Closing Argument and Deliberations

Defendant further contends that the prosecutor’s emphasis on all of the challenged
evidence in closing arguments exacerbated its prejudicial effect. With respect to
defendant’s drug use, the prosecutor made one comment: “[Rodriguez] told us that
defendant was using meth everyday.” He did not emphasize drug use in closing. He
mentioned it briefly. The prosecutor did argue that defendant had guns, but this fact was
already before the jury through properly admitted evidence. The prosecutor emphasized
defendant’s jealousy directed at Garcia for a permissible use—motive. Defense counsel
argued that the evidence of jealousy was being used to smear defendant’s character.
Rather than relying on character evidence, the prosecutor in closing argument responded:
“Ladies and gentlemen, the defendant isn’t charged with murder because of his temper.
He’s not charged with murder because of his jealousy. He’s charged with murder
because he shot and killed Robert Guerrero. [¶] Now, this is not win-at-all-costs. I’m
talking about somebody’s life here. This is about justice. Justice for Robert, and also for
the defendant, if he truly did not commit the murder. This is not a win-at-all-cost.” He
went on to catalog the extensive properly admitted evidence in support of defendant’s
conviction. In light of the abundance of admissible evidence against defendant, which
the jury was reminded of in great detail just before deliberations, the prosecution’s
closing argument reference to defendant’s drug use was unlikely to have impacted the
jury’s verdict.
Defendant also argues that the length of deliberations and the fact that the jury
requested readback of Contreras’s and Dominguez’s testimony and review of the
surveillance video, establishes that defendant’s case was close and that he was prejudiced
by the improper admission of evidence. He asserts that the seven hours of jury
deliberation was excessive in comparison to the three-and-a-half days of trial. In the real
world, juries sometimes return a verdict quickly in close cases, and other times engage in
extended deliberations in cases with overwhelming guilt. The length of deliberation has
never been shown to have a direct correlation to the strength or weakness of the

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prosecution’s case. The only thing reflected by the length of deliberations here is that the
jury took its time to reach a verdict in a case with significant ramifications. Consistent
with making a careful decision, “we assume that the jury spent time going over their
instructions to make sure that they were properly carrying out their duties.” (People v.
Walker (1995) 31 Cal.App.4th 432, 438.) “[W]e find that the length of the deliberations
could as easily be reconciled with the jury’s conscientious performance of its civic duty,
rather than its difficulty in reaching a decision.” (Id. at p. 439.) The jury approached its
task with care, requesting a rereading of certain testimony and an examination of the
video from the market. None of this suggests the case was anything other than what it
appears to be—a prosecution supported by overwhelming evidence of guilt.

Cumulative error

Defendant contends the cumulative prejudicial effect of the various trial errors he
has raised on appeal requires the reversal of his conviction. The few errors we have
identified are clearly harmless in the face of the overwhelming evidence of defendant’s
guilt. Defendant’s trial was not fundamentally unfair. (See People v. Jenkins (2000) 22
Cal.4th 900, 1056.)

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 DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

MOSK, Acting P. J.

GOODMAN, J.*

* Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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