People v. Pauldo CA2/7

Filed 3/15/21 P. v. Pauldo CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B304703

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476449)
v.

BUDDIE L. PAULDO IV,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Drew E. Edwards, Judge. Affirmed.
Jack T. Weedin, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and Michael Katz, Deputy Attorney
General, for Plaintiff and Respondent.
 Buddie L. Pauldo IV appeals the judgment entered after a
jury convicted him of assaulting Fermin Rivera. Pauldo contends
his conviction should be reversed for evidentiary and
instructional error and prosecutorial misconduct. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The First Amended Information
Pauldo was charged in a first amended information with
assault with a deadly weapon, identified as a “golf club/metal
stick,” (Pen. Code, § 245, subd. (a) (1))1 (count 1) and making a
criminal threat (§ 422, subd. (a)) (count 2)). The amended
information also specially alleged as to the second count Pauldo
had personally used a deadly or dangerous weapon when
committing the offense (§ 12022, subd. (b)(1)).
2. Evidence at Trial
The People’s theory of the case was that Pauldo, without
provocation, verbally accosted Rivera and then assaulted Rivera
with a golf club. Pauldo, who testified in his own defense,
claimed Rivera and his wife, Aida Aguilar, were the aggressors
and he had only responded to Rivera’s attack in self-defense.
a. The People’s evidence
On the morning of March 25, 2019 Rivera and Aguilar were
setting up the food truck that Aguilar operated on Hollywood
Boulevard, an area visited by many tourists. Rivera observed
Pauldo a few storefronts down, smoking with another person.
Rivera left at 11:00 a.m. to run errands. Aguilar observed
Pauldo, whom she had seen smoking marijuana throughout that
day, talking to himself, making gestures and appearing angry

1 Statutory references are to this code unless otherwise
stated.

2
and aggressive. She once saw him push and kick people in their
backs as they walked by.
Rivera testified he returned from his errands at 2:00 p.m.
and saw Pauldo standing at the corner, holding a blade in
one hand and a piece of metal in another. Pauldo put both
objects in his pockets and angrily asked if Rivera was staring at
him and if Rivera “was a bitch.” Although Rivera repeatedly told
Pauldo he “didn’t want any problems,” Pauldo, continuing to use
foul language, approached Rivera. The two argued for a few
minutes, and Pauldo punched Rivera near his ear. Tourists
separated them, and Rivera started walking away, toward the
truck.
Pauldo, calling Rivera “a little bitch,” yelled at Rivera to
come back and then pursued him. Pauldo grabbed a stool on the
side of a tour booth and threw it at Rivera, who caught it and
placed it on the ground. Pauldo had a golf club in his hands.
Swinging the golf club like a baseball bat, Pauldo tried to hit
Rivera. To shield himself, Rivera held up the stool that had been
thrown by Pauldo. The golf club hit the chair. Pauldo swung the
golf club three times downward at Rivera, each time hitting the
stool. The club broke on the third swing, and the severed piece
made contact with Rivera’s back as it fell to the ground.
Others intervened. Rivera walked away from Pauldo
toward the truck, but Pauldo followed along in the street
insulting him. Rivera stopped in front of a luggage store, which
had two sets of doors, an exterior metal garage door and an
interior glass-framed door. When Pauldo came toward him from
the road onto the sidewalk, Rivera backed into the interior

3
entrance of the store. Pauldo continued to yell insults at Rivera
and told him to get outside.
Pauldo then charged at Rivera into the store while holding
a metallic object with at least a three-inch point protruding from
his hand. As Rivera tried to cover himself with his forearm,
Pauldo scratched him with the metal object, causing two small
cuts, one on Rivera’s arm and another on his face, near a tear
duct. Rivera took a step back, tripped over luggage and fell onto
his back. Pauldo fell on top of him. Pauldo punched Rivera
repeatedly in the face and several times in the chest and arm as
Rivera tried to push Pauldo away. Suddenly Pauldo stood up and
left Rivera, who was bleeding profusely on the carpet. When
Aguilar went to Rivera, Pauldo, who by then was again out on the
street, called her a bitch and a prostitute and threatened to go
and bring his sister to beat her. Rivera also heard Pauldo tell
another person he was going to return and kill Rivera and
Aguilar.
In her testimony Aguilar confirmed that Pauldo swung a
golf club at Rivera and, when Rivera blocked it with the chair
Pauldo had thrown, the golf club broke. Aguilar also testified she
went inside the luggage store when Rivera was lying on his back
with Pauldo on top of him. To frighten Pauldo into leaving
Rivera and to defend herself, Aguilar pulled out a kitchen knife
she used for her work. Pauldo turned, saw Aguilar with the knife
in her hands, got up and ran outside. During the entire incident
Pauldo was screaming, including that he was going to kill Rivera
and Aguilar.
John Mashian, the owner of the luggage store, testified he
heard yelling, stepped outside and saw Pauldo holding a golf club
above his head and Rivera holding a stool in front of his body.

4
Believing someone would get hurt, Mashian called the 911
emergency operator to report a fight. As Mashian was talking on
the phone, Pauldo and Rivera walked toward his store. Pauldo
and Rivera no longer had the golf club or chair. Mashian heard
Pauldo say to Rivera, “I’m going to mess you up.” Rivera reached
the front of Mashian’s shop, an open space with a large garage
door entrance, and Pauldo was a few feet away from Rivera on
the sidewalk. Mashian saw Pauldo rush at Rivera into the store.
Rivera fell on his back inside the shop. Pauldo moved on top of
Rivera, punching him in the face and upper body. Pauldo
appeared angry and agitated. Others, including Aguilar, came
into the store to pull Pauldo off Rivera. Pauldo went outside, still
upset and agitated, and paced back and forth in the street.
The audio recording of Mashian’s 911 call was played for
the jury. As Mashian was explaining that Pauldo “has got a big
. . . metal golf thing,” Pauldo could be heard in the background
saying, “I’m about to fuck you up!,” immediately followed by
“You’re not leavin’ bro” and “I’m about to back you up. You’re not
leaving cuz.” Pauldo later stated, “I’m gonna dead clock you son.”
Pauldo also yelled, “[Y]ou a bitch nigga. A bitch cause you
running [unintelligible].” Mashian then exclaimed, “They are
coming in the store. Call the cops please!” Sometime later
Aguilar spoke. Her statements included (as translated from the
original in Spanish) “Stupid! What the fuck! Go away!” and
“[C]all the police.” Mashian stated, “This guy is hurt. The
Mexican guy [Rivera] is bleeding really bad.”
b. Evidence for the defense
Pauldo, although admitting he had been smoking
marijuana, denied talking to himself, making hand gestures or
kicking or pushing anyone who walked by him. Describing his

5
first contact with Rivera, Pauldo said he had been leaning
against a pole when, feeling a presence near him, he turned and
discovered Rivera standing behind him. Pauldo denied having
any knives or anything metal on him at the time. Pauldo asked
Rivera what he was looking at. Rivera pulled out a switchblade,
which was closed at the time, and responded, “Get the fuck out of
here. I am not looking at you.” Pauldo asked why Rivera pulled
a knife on him and told Rivera to “fight [him] like a man.” Rivera
said some words, including “Shut the fuck up.” While Pauldo and
Rivera were arguing, Aguilar tried to pass Rivera a butcher knife,
but Rivera did not take it.
Pauldo intended to “let [the situation] go,” but Rivera took
a swing at him. Although Pauldo blocked Rivera’s punch, it
grazed Pauldo’s head. Rivera opened his switchblade and slashed
Pauldo’s shoulder. Rivera then grabbed a golf club from the front
of a store and swung it at Pauldo. Rivera hit Pauldo one time on
the head with the golf club. Pauldo blocked a second swing with
his hand. Pauldo managed to take the club from Rivera. As he
did, Rivera picked up a bar stool. Pauldo and Rivera swung at
the same time. The golf club and the stool hit each other, and the
golf club broke. Rivera picked up the broken golf club and used it
to slice Pauldo on his back and stab Pauldo on his right shoulder.
In response Pauldo “kneed [Rivera] in the stomach,” and Rivera
fell back. Pauldo got on top of Rivera to prevent him from using
the golf club and punched Rivera twice in the face. Aguilar then
approached the men with a knife, but Rivera did not take it.
Pauldo ran around Aguilar and out of the store, walked
across the street and stayed in the area. He did not call 911
because a police car had been across the street the entire time
and he assumed the police were aware of what had happened.

6
 Pauldo testified he felt a sharp pain when Rivera had hit
Pauldo’s hand with the golf club and his hand had been swelling.
When asked about another witness’s trial testimony that his
medical records had indicated no visible swelling, Pauldo replied,
“They probably just missed it.” When asked whether there was
any bruising or swelling to his head when the golf club had hit it,
he replied, “I got braids, so—,” and explained his braids
“probably” provided “a little cushion.”
After the audio recording of Mashian’s 911 call was played
for him, Pauldo was asked, “You told [Rivera] you were about to
fuck him up, and he is not leaving, bro?” Pauldo denied saying
this; rather, he testified, he had said, “I could pack you out,”
which means “jump someone.” He also denied saying, “I am
going to dead clock you, son” and explained, “It sounds like, ‘I
would have popped you.’”
Los Angeles Police Officer Ron Rojo, who at the time of the
incident was a trainee, testified he had been among the officers
who responded on March 25, 2019 to a second 911 call about
Pauldo, made when Pauldo returned to the scene sometime after
the fight. While Rojo was detaining Pauldo and seconds after
Pauldo told Rojo he had witnesses and did not want “to get
screwed over,” Pauldo called out to a man walking by, “Hey, you
were right there when the incident happened.” Officer Rojo
interpreted that to mean the man, whose name he later learned
was Darius, might have seen the incident. Pauldo wanted Darius
to come down to the station. Darius wrote something down
instead, told Pauldo to call him and gave Rojo the piece of paper.
Rojo asked Darius for his name to write on the paper. Rojo did

7
not book the paper into evidence, did not recall what he did with
it and did not call Darius.2
3. The Verdict and Sentencing
The jury found Pauldo guilty of assault with a deadly
weapon, but deadlocked as to the charge of making a criminal
threat. The trial court declared a mistrial on that count. The
court sentenced Pauldo to the upper term of four years in state
prison.
DISCUSSION
1. The Trial Court Did Not Commit Reversible Error in
Admitting Evidence of Pauldo’s Promotion of a Song
Referring to a Street Gang
a. Background concerning the Parcbo song
Rivera testified that, while he was still inside the luggage
store after being pummeled, Pauldo, by then on the street yelling,
threatened him and his wife while claiming to be a gang member
from Compton. “[Pauldo] was out there telling a guy, another . . .
guy who was with him, to remember our faces because he was
going to come back and kill us because he belonged to [a]
Compton gang.” Rivera was afraid Pauldo or one of Pauldo’s
gang friends “might actually come back and kill [him].”

2 Prior to trial, Pauldo moved to dismiss the charges or for
imposition of other sanctions for destruction of evidence based on
the loss of the Darius paper. The trial court initially denied the
motion, but ruled the issue could be raised again later.
Subsequently, the court again denied the request to dismiss but
ruled it would give a curative instruction and permit defense
counsel to examine Officer Rojo about the destruction of the
evidence.

8
 During Pauldo’s direct examination his attorney asked,
“Did you at any point say to Mr. Rivera or talking to your friend
and say to your friend, ‘Remember his face’ or ‘I’m going to
remember your face because I am in a Compton gang and I am
going to come back and kill you’?” Pauldo answered, “Definitely
not.” He also testified he did not at any point threaten to kill
Rivera.
Pauldo had explained his presence in Hollywood on the day
of the incident, testifying he had been on Hollywood Boulevard
passing out flyers advertising the music, which “[m]y label
made,” of a friend who went by the artist name Parcbo. The
flyers were little cards that, if scanned, would “send you to the
website where you can check out [Parcbo’s] music.” On cross-
examination the prosecutor asked Pauldo if Parcbo was a
Compton Crip. Pauldo responded, “I don’t think so.” Pauldo also
later said, “I am not from a gang.”
At a sidebar conference the prosecutor said he intended to
introduce the lyrics to the first 30 seconds of Parcbo’s song, as
well as the testimony of an officer regarding Parcbo’s Compton
Crip gang membership. Defense counsel objected to the evidence
as irrelevant and unduly prejudicial.
At an Evidence Code section 402 hearing the prosecutor
stated Parcbo is a well-known Compton Crip. He also told the
court the flyers advertising Parcbo’s music, which had been
introduced in evidence by defense counsel, contained a link to
Parcbo’s song that in its initial 30 seconds referred to Parcbo’s
allegiance to the Crips three times. The prosecutor explained the
lyrics thus undermined Pauldo’s credibility in claiming he did not
think Parcbo was a Compton Crip and bolstered the credibility of
Rivera’s testimony that Pauldo had claimed to be a gangster from

9
Compton when threatening to kill Rivera. Defense counsel, after
arguing against admission of the evidence, stated, if the court
intended to admit it, she would stipulate that Parcbo’s song
referred to gang language but not that Parcbo was a gang
member or that Pauldo knew about Parcbo’s gang membership.
The parties agreed to the following stipulation, which was
read to the jury: “The People and the defense stipulate that a
song, ‘Parc Life,’ . . . by the rap artist Parcbo . . . is a three minute
and 31 second song in which the artist Parcbo references a street
gang, and that during the song Parcbo makes references to the
various criminal activities of a street gang.”
Referring to Pauldo’s threat, “Remember their faces. I am
a gangster from Compton. I’m going to come back and kill them,”
the prosecutor in his closing argument told the jury, “I am not
arguing [Pauldo] is a gang member. I don’t know. I am not
saying that he is. I don’t even honestly know if he knows
[Parcbo]. Maybe he does or doesn’t. What matters to the case is
he said that. He made that threat to the victim. He made that
threat in order to put him in fear.”
b. The trial court did not abuse its discretion in
admitting evidence of the Parcbo song lyrics
On appeal Pauldo contends the trial court abused its
discretion in admitting evidence of the Parcbo song lyrics because
they were both irrelevant and unduly prejudicial. (See Evid.
Code, §§ 350 [only relevant evidence is admissible], 352 [“[t]he
court in its discretion may exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will . . . create substantial danger of undue prejudice”]; People v.
Jones (2017) 3 Cal.5th 583, 609 [“‘[a]n appellate court reviews a
court’s rulings regarding relevancy and admissibility under

10
Evidence Code section 352 for abuse of discretion’”]; People v.
Nguyen (2015) 61 Cal.4th 1015, 1073 [the trial court’s
determinations of the relevance of evidence are reviewed for
abuse of discretion].) He argues the lyrics were not relevant to
either of the charges because there was no evidence Rivera,
Aguilar or any other witness was aware of Parcbo or the lyrics of
Parcbo’s song and the first amended information included no
gang allegations.
Relevant evidence is evidence having “any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action,” including
information that relates to a witness’s credibility. (Evid. Code,
§ 210.) Here, although Rivera and Aguilar may not have known
Parcbo or been familiar with the lyrics of his music, that Pauldo
was actively promoting his friend’s song with its repeated
references to a criminal street gang immediately before his
encounter with Rivera had some tendency in reason to support
Rivera’s testimony that Pauldo claimed to be a member of a
Compton gang when threatening Rivera’s and Aguilar’s lives.
(See People v. Williams (2008) 43 Cal.4th 584, 634 [“[t]he trial
court has considerable discretion in determining the relevance of
evidence”].) And Pauldo’s self-identification as a gang member,
whether true or not, supported the People’s argument Pauldo’s
threat caused Rivera reasonably to be in sustained fear for his
and Aguilar’s safety—essential elements of the charge of making
a criminal threat. (Pen. Code, § 422; In re George T. (2004)
33 Cal.4th 620, 630; People v. Toledo (2001) 26 Cal.4th 221, 227-
228; see People v. Hernandez (2004) 33 Cal.4th 1040, 1053
[“[g]ang testimony was relevant . . . to explain how [defendant’s]
statement could induce fear in the victim”].) Neither the absence

11
of a gang enhancement allegation nor the fact the song lyrics did
not relate to any element of the aggravated assault charge
diminished the evidence’s relevance to the case. (Cf. Hernandez,
at pp. 1049-1050 [observing, although evidence of gang
membership should not be admitted in cases not involving a gang
enhancement if its probative value is minimal, evidence of gang
membership nevertheless “is often relevant to, and admissible
regarding, the charged offense”].)
The trial court’s additional determination admitting
evidence of the Parcbo lyrics would not be unduly prejudicial was
neither arbitrary nor capricious. (See People v. Williams, supra,
43 Cal.4th at pp. 634-635 [trial court’s discretionary ruling under
Evidence Code section 352 will not be reversed on appeal absent
a showing the court “‘exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest
miscarriage of justice’”].) Rivera’s testimony that Pauldo
identified himself as a Compton gang member, as well as
Pauldo’s denial that he belonged to a gang or made that claim,
was before the jury regardless of the court’s ruling on the Parcbo
lyrics. The parties’ stipulation regarding the lyrics added little
that could properly be classified as prejudicial as to Pauldo,
except perhaps to the extent it discredited his statement he did
not believe Parcbo was a Compton Crip.
To be sure, gang references in the 911 recording were
excised because, as the court observed, “Gang testimony can be
very inflammatory for any defendant.” But rather than
supporting Pauldo’s argument the court abused its discretion in
admitting the evidence of the Parcbo lyrics, the exchange
between the court and the prosecutor that led to the use of a
redacted version of the 911 recording demonstrates a court

12
sensitive to the potential impact of gang-related evidence and
that carefully weighed the probative value of evidence against the
potential prejudice. There was no abuse of discretion.
c. Any error in admitting evidence of the song lyrics
was harmless
In any event, any error in admitting evidence of the Parcbo
lyrics would not require reversal of Pauldo’s conviction for assault
with a deadly weapon. The evidence that Pauldo attacked Rivera
was supported not only by the testimony of the victim and his
wife but also by the disinterested luggage store owner. It is not
reasonably probable Pauldo would have obtained a more
favorable result if the lyrics’ gang references had been excluded.
(See Evid. Code, § 353, subd. (b) [verdict may be set aside and
judgment may be reversed for the erroneous admission of
evidence only if the error “resulted in a miscarriage of justice”];
People v. Richardson (2008) 43 Cal.4th 959, 1001 [“‘[a]
“miscarriage of justice” should be declared only when the court,
“after an examination of the entire cause, including the
evidence,” is of the “opinion” that it is reasonably probable that a
result more favorable to the appealing party would have been
reached in the absence of the error’”].) The prosecutor told the
jury he did not know whether, and was not arguing, Pauldo was a
gang member. Moreover, the jury, although finding against
Pauldo on the aggravated assault count, deadlocked on the
charge of making a criminal threat, a mixed result that indicated
the jurors had carefully considered all the evidence presented and
had not overreacted to the lyrics’ reference to street gangs in
determining Pauldo’s guilt.

13
 2. Pauldo Failed To Establish Prosecutorial Misconduct
a. Governing law and standard of review
“‘“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the
jury.”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1331-1332;
accord, People v. Rivera (2019) 7 Cal.5th 306, 333-334.) Bad faith
on the prosecutor’s part is not required. (People v. Hill (1998)
17 Cal.4th 800, 821; accord, People v. Lloyd (2015)
236 Cal.App.4th 49, 61; but see People v. Molano (2019) 7 Cal.5th
620, 674 [“a claim of misconduct based on allegations that the
prosecutor elicited evidence in violation of a court order requires
proof that the prosecutor acted deliberately or intentionally”].) In
this regard, “‘[t]he term prosecutorial “misconduct” is somewhat
of a misnomer to the extent that it suggests a prosecutor must act
with a culpable state of mind. A more apt description of the
transgression is prosecutorial error.’” (People v. Centeno (2014)
60 Cal.4th 659, 666-667; see People v. Sandoval (2015) 62 Cal.4th
394, 438.) “[T]he burden of proof is on the defendant to show the
existence of misconduct.” (People v. Van Houten (1980)
113 Cal.App.3d 280, 292.)
Ordinarily, “‘“[t]o preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and
specific objection and ask the trial court to admonish the jury to
disregard the improper argument.”’” (People v. Charles (2015)
61 Cal.4th 308, 327; see People v. Beck and Cruz (2019) 8 Cal.5th

14
548, 657 [“‘“As a general rule a defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety”’”].) The forfeiture doctrine does not
apply when a request for an admonition would have been futile or
would not have cured the harm. (People v. Seumanu, supra,
61 Cal.4th at pp. 1328-1329; People v. Hill, supra, 17 Cal.4th at
p. 820.)
When the issue has been preserved, we review a trial
court’s ruling regarding prosecutorial misconduct for abuse of
discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 213.) A
defendant’s conviction will not be reversed for prosecutorial
misconduct that violates state law “‘unless it is reasonably
probable that a result more favorable to the defendant would
have been reached without the misconduct.’” (People v. Wallace
(2008) 44 Cal.4th 1032, 1070-1071; accord, People v. Rivera,
supra, 7 Cal.5th at p. 334.) “Federal constitutional errors subject
to harmless error review,” in contrast, “are reviewed under
Chapman [v. California (1967) 386 U.S. 18],” which requires a
reviewing court “to reverse the conviction unless the People can
demonstrate that the error was harmless beyond a reasonable
doubt.” (People v. Reese (2017) 2 Cal.5th 660, 671.)
b. Most of Pauldo’s prosecutorial misconduct
arguments have been forfeited
Pauldo contends the prosecutor committed misconduct on
numerous instances, the cumulative effect of which requires
reversal of his conviction. Pauldo, however, forfeited nearly all of
his prosecutorial misconduct arguments.

15
 i. Questioning Pauldo about statements in his
hospital records
During cross-examination of Pauldo, the prosecutor,
referring to Pauldo’s hospital records, exhibit 10, told the court, “I
am approaching the witness [Pauldo] with what has been
previously marked as People’s 10. I’ll just show it to him on the
overhead.” Defense counsel objected the exhibit was “not
potentially admissible at this point,” and the court stated, “It is
not admissible at this point.” The prosecutor moved to admit the
exhibit. The trial court responded, “What is actually in the
medical reports is hearsay. You can certainly ask him a question
about it. The document itself is hearsay.” The prosecutor then
asked Pauldo, “At 10:14 p.m., you told Nurse Koko that you had
pain after getting into an altercation at the jail, do you remember
saying that?” Pauldo replied, “No, I do not remember saying
that.” The prosecutor asked, “Again, about five minutes later, did
you note to another individual that you [had] gotten into an
altercation at the jail?” When Pauldo responded he had never
gotten into any incident at the jail, the prosecutor asked, “I am
asking you five minutes later if you told them again, at the
hospital, that you got into an altercation at the jail?” Pauldo
denied having done so.
After he had cross-examined Pauldo, the prosecutor again
sought to introduce exhibit 10 into evidence, explaining, although
defense counsel had objected on the ground of hearsay, the
medical records that comprised exhibit 10 should be admitted
because they constituted business records and “a statement of the
party, the defendant”; he “was using them specifically to impeach
[Pauldo’s] testimony”; and “[t]hey would also be prior inconsistent
statements.” Defense counsel stated, “I believe my client can be

16
impeached, but they do not come into evidence. The statements
made about how injuries occurred during an incident in medical
records are not admissible. Counsel can impeach with the
documents just like I impeach with the police report. The same
analysis would go forward with me wanting to introduce a police
report. . . . I believe it is inadmissible hearsay. The medical
records are alright for impeachment, but not admissible into
evidence for the jury to review.” The court agreed the medical
records were inadmissible hearsay and did not admit exhibit 10
into evidence.
Pauldo contends on appeal the prosecutor engaged in
misconduct by questioning him about information allegedly
contained in exhibit 10—specifically, Pauldo’s alleged statements
reflected in that exhibit. He asserts the prosecutor, by examining
Pauldo about those statements, had improperly referred to facts
not in evidence and without a good faith basis the facts could be
proved. However, notwithstanding defense counsel’s objection to
the admissibility of exhibit 10, she did not object to the
prosecutor’s examination of Pauldo about the contents of
exhibit 10 or to any of the prosecutor’s questions of Pauldo that
he now contends was improper. Indeed, defense counsel conceded
the prosecutor could use exhibit 10 to impeach Pauldo. This
claim of prosecutorial misconduct has been forfeited.
ii. Burden-shifting objection/disparagement of
counsel
In his closing argument the prosecutor stated, “On the one
hand, LAPD wrote a crappy police report. They had the last shift
guy write it. They didn’t bother to do the best investigation. Let
me pull the police report out. This is the Bible, and I am going to
cross-examine the victim. They didn’t put one minute of the body

17
worn, the coverage. If that was not on there, I guarantee you
they should have.” Although defense counsel had objected
(unsuccessfully) in the trial court on the ground of “burden-
shifting,” Pauldo argues on appeal the prosecutor’s statements
constituted misconduct by disparaging defense counsel. This
claim of misconduct has been forfeited because no objection was
made in the trial court on the ground Pauldo now asserts on
appeal.
In any event, Pauldo fails to show the prosecutor’s
statements constituted improper disparagement of defense
counsel, as Pauldo asserts. (E.g., People v. Cash (2002)
28 Cal.4th 703, 732 [“[i]t is misconduct for the prosecutor in
argument to impugn the integrity of defense counsel or to suggest
defense counsel has fabricated a defense”].) Whatever the
prosecutor intended to convey to the jury by these largely
incoherent comments, they do not suggest defense counsel had
fabricated evidence or otherwise improperly disparage or impugn
the integrity or character of defense counsel. (See People v.
Rhoades (2019) 8 Cal.5th 393, 448 [“‘it is neither unusual nor
improper to comment on the failure to call logical witnesses’”];
Cash, at p. 733 [“[w]e accord the prosecutor wide latitude in
describing the factual deficiencies of the defense case”]; cf. People
v. Demetrulias (2006) 39 Cal.4th 1, 31-32 [prosecutor’s argument
that the defense’s portrayal of the defendant as a victim
constituted an “‘attempt to distract’” the jury from the “‘real
victims’” and “that the jury should ‘[l]et that disingenuous
attempt fall on deaf ears’” was proper and did not “improperly
impugn[ ] defense counsel’s integrity”].)
Although the headings for this section of Pauldo’s appellate
briefs also refer to burden-shifting, Pauldo provided no legal

18
argument or authority to support any contention that, by these
cryptic statements, the prosecutor engaged in misconduct by
improper burden-shifting. Accordingly, that issue is not properly
before us. (See Kaufman v. Goldman (2011) 195 Cal.App.4th 734,
743 [appellate court may treat as forfeited any argument not
“supported by both coherent argument and pertinent legal
authority”]; Mansell v. Board of Administration (1994)
30 Cal.App.4th 539, 545-546 [reviewing court need not consider
an inadequately supported legal argument; “‘[t]his court is not
inclined to act as counsel for . . . appellant’”].)
iii. Other instances of alleged misconduct
Defense counsel objected to a number of statements during
the prosecutor’s closing argument solely as “improper” or
“improper argument” without specification of the purported
impropriety. Pauldo’s contention these statements constituted
improper vouching or disparagement of defense counsel were
forfeited by his failure to satisfy the requirement of making a
specific objection in the trial court, which is necessary to preserve
the claim on appeal (see People v. Charles, supra, 61 Cal.4th at
p. 327; see also People v. Fuiava (2012) 53 Cal.4th 622, 728
[characterizing defendant’s “improper argument” objection as
“nonspecific”]; People v. Fernandez (2013) 216 Cal.App.4th 540,
560 [appellant “appropriately concedes” he forfeited prosecutorial
misconduct argument by objecting one time each to the
prosecutor’s initial and rebuttal closing arguments “on the vague
ground of ‘improper argument’”]; cf. People v. Hubbard (2020)
52 Cal.App.5th 555, 561, 563 [where defense counsel objected to
the prosecutor’s argument as improper and specified the nature
of the impropriety, the “objection and explanation” were adequate
to preserve claim for appeal]):

19
 • “I’ve been a prosecutor for approximately
10 years . . . .” “I did about five years as a sex crimes
investigator in the Marines, four years in the district
attorney’s office.”
• “Over the course of the last nine years, I think there
has been a general hope of prosecutors that certain
types of defense arguments might die out. It was
kind of the advent of some things involving victims
specifically. The Me Too Movements where we
thought juries and people in general would reach a
new understanding of how people and how people’s
memory are when they talk about specific events.”
“You know, it seems like it is getting worse. The
annililationism [sic] I thought would go away. I
thought defense counsel would say the argument—.”
• “The defendant was basically led along by the hand
by his counsel.”
Other instances of prosecutorial misconduct were forfeited
because, after an objection was actually or effectively sustained,
Pauldo failed to request the court admonish the jury to disregard
the inappropriate argument or other impropriety. (See, e.g.,
People v. Beck and Cruz, supra, 8 Cal.5th at p. 657; People v.
Charles, supra, 61 Cal.4th at pp. 327-328; People v. Winbush
(2017) 2 Cal.5th 402, 482.) Because the court had sustained
Pauldo’s objections, we cannot say a request for an admonition
would have been futile or conclude a properly framed admonition
would have been ineffective in preventing prejudice, if any, to
Pauldo. (See People v. Fuiava, supra, 53 Cal.4th at p. 683.)
• “What I don’t want it to do is this case end up being
the trial of Ron Rojo or the trial of LAPD—.” That

20
 comment, made during the prosecutor’s opening
statement, drew an objection on the ground of
“inappropriate argument.” The trial court effectively
sustained the objection by stating, “Counsel, I think
you are kind of morphing into argument.” No
admonition was requested.
• “There is going to be an expectation of minor
inconsistencies between each witness’s testimony. It
is going to happen. I think there is a minor
inconsistency between Aguilar’s testimony that she
saw him punch several times and the Husband’s
testimony that he was only struck—.” Defense
counsel objected to those statements, made by the
prosecutor during his closing argument, as vouching.
The court sustained the objection, stating, “Counsel,
that is improper argument. It is vouching.” No
admonition was requested.
• “You have to reach the conclusion that he was acting
reasonable, using no more force than was reasonably
necessary. To be totally frank, I don’t think
ultimately—.” Despite a vague objection as
“improper argument” to this statement made during
closing argument, the trial court effectively sustained
the objection, stating, “Once again, counsel, the jury
can decide. Your opinion is not relevant.”
Notwithstanding the court’s response, defense
counsel did not request the court admonish the jury
to disregard any improper argument by the
prosecutor.

21
 • “It is frustrating that so many cases end up turning
to a charge not just on the defendant, but turning to
LAPD. I don’t care if LAPD never showed up—.”
Defense counsel objected as “improper argument.”
The trial court agreed, stating, “When you say you
don’t care, it is improper”; but defense counsel once
again did not request an admonition to the jury.
Finally, Pauldo’s argument the following statements
constituted instances of prosecutorial misconduct has been
forfeited because defense counsel made no objection at all:
• “Assuming everything [Pauldo] said is true, he did
swing the golf club at him. Trust me. Everything he
says at that point—and the guy has a chair up in his
hair [sic], but, no, he only swung the golf club because
[Pauldo] swung the chair. ‘I wasn’t swinging it at
him, but “I was swinging at the chair. I was playing
with him.”’ Everything about that is incredible.”
Although Pauldo on appeal asserts his counsel
objected to these statements by the prosecutor in
closing argument on the ground of “improper
argument,” the record shows that objection had been
directed to other remarks by the prosecutor later in
his closing. In any event, as discussed, an objection
of “improper argument” is not sufficiently specific to
preserve the claim on appeal.
• “The other instruction the defense always brings up,
and it basically almost doesn’t apply in this case, is
the circumstantial evidence rule. That is basically
circumstantial evidence and direct evidence are the
two types of evidence you get.”

22
 • “If Mr. Rivera had a conviction, you bet you would
have heard about it. This is an individual, from the
evidence before you, has spent the last 10 or 11 years
working on Hollywood Boulevard and essentially has
no convictions or problems with the law. I can
guarantee you if he had something like that, you
would have been made aware of it.” Defense counsel
did not object to those remarks. As discussed, her
objection as “improper” was directed to the
prosecutor’s later statement “[t]he defendant was
basically led along by the hand by his counsel,” which
Pauldo on appeal contends constituted
disparagement of defense counsel. In addition,
Pauldo’s contention for the first time on appeal that
the remarks about Rivera improperly argued facts
not in evidence has been forfeited because his counsel
failed to assert that specific objection.
iv. No forfeiture exception
Citing People v. Friend (2009) 47 Cal.4th 1, 29, Pauldo in
his reply brief contends he did not forfeit his prosecutorial
misconduct arguments, explaining trial counsel is not required to
object to each instance of misconduct when the “‘misconduct [is]
pervasive, defense counsel [has] repeatedly but vainly objected to
try to curb the misconduct, and the courtroom atmosphere was so
poisonous that further objections would have been futile.’” To
demonstrate the requisite futility, Pauldo refers to the trial
court’s denial of defense counsel’s request for a curative
instruction following misconduct that he did not forfeit, which
involved the prosecutor’s question to Pauldo about his “conviction
for a PC 245(a)(4), assault causing grievous bodily injury.”

23
Nothing about this incident, which Pauldo describes in a single
sentence, excuses defense counsel’s failures to object or to request
admonitions.
Prior to opening statements defense counsel requested a
ruling on the admissibility of Pauldo’s prior convictions that the
People intended to use for purposes of impeachment. The
prosecutor explained, although Pauldo had a number of
convictions, he intended to impeach Pauldo with only three: a
misdemeanor conviction for theft, a conviction for animal cruelty
and a felony conviction for aggravated assault under section 245,
subdivision (a)(4). The court stated its initial inclination to allow
the People to impeach Pauldo with all three priors, including, as
summarized by the court, for “a 245 assault with force likely to
produce great bodily injury.”
In response to defense counsel’s objection the convictions,
particularly the one for animal cruelty, were remote in time, the
court excluded the 2009 animal cruelty conviction but allowed the
2010 misdemeanor conviction for theft and 2015 felony conviction
for assault. Defense counsel then requested the court “sanitize
the nature of the [2015 felony] conviction” and stated, “This is
assault. It is an (a)(4) as opposed to an (a)(1).[3] I think if the
jury hears he has the prior conviction for the same conduct, it
would be too prejudicial.” After hearing further argument, the
court ruled, “I believe the conduct in this case is somewhat

3 Section 245, subdivision (a)(1), prohibits “an assault upon
the person of another with a deadly weapon or instrument other
than a firearm.” Section 245, subdivision (a)(4), prohibits “an
assault upon the person of another by any means of force likely to
produce great bodily injury.”

24
similar. It would be prejudicial to Mr. Pauldo, under Evidence
Code 352, to admit the 2015 crime.”
During her direct examination of Pauldo, defense counsel
asked the court if it had changed its ruling regarding the
admissibility of the 2015 felony conviction, and the court
responded it had not. The prosecutor asked, “To be clear, I can
say the felony assault, but not the specifics?” The court replied,
“You can impeach him with the fact he has the felony conviction,
but not the facts.” Defense counsel asked, “He can say ‘assault’?”
The court stated, “He can. He can’t go into the facts.” Pauldo
testified on direct he had been convicted in 2010 of misdemeanor
petty theft and in 2015 of felony assault but that he had taken a
deal rather than go to trial in both cases.
On cross-examination the prosecutor asked Pauldo about
his “conviction for a PC 245(a)(4), assault causing grievous bodily
injury.” Defense counsel objected based on the court’s earlier
ruling. In a sidebar conference the court stated to the prosecutor,
“[Defense counsel] is objecting to the question of grievous bodily
injury. That is your take on it. It is not a grievous bodily injury.
Just say he was convicted of an assault and leave it at that.” At
defense counsel’s request the court advised the jury, “The
previous question about the grievous bodily injury is stricken.”
Defense counsel, later arguing the question had been a direct
violation of the court’s ruling because “the People went beyond
[referring to a 2015 felony assault conviction] and stated grievous
bodily injury on the record,” requested “some kind of instruction
that the People violated a court ruling.” The court denied the
request, stating, “Whether it is a felony assault with grievous
bodily injury could be the name of the charge itself. I informed

25
the jury that was stricken. The only issue was Mr. Pauldo
suffered a 2015 conviction for felony assault.”
It is clear even from the lone example Pauldo chose to
illustrate the purported futility of defense objections or requests
for admonition that, far from a poisonous courtroom atmosphere,
the trial court here maintained firm and fair control of the
proceedings and was reasonably responsive to defense counsel’s
frequent objections and requests. Indeed, the court had
sustained, or essentially sustained, defense counsel’s objections
multiple times and, although it declined to instruct the jury that
the prosecutor had violated a court ruling, had agreed to strike
the objectionable question. Pauldo’s argument against standard
principles of forfeiture lacks merit. (See People v. Fuiava, supra,
53 Cal.4th at p. 680 [rejecting defendant’s request to excuse his
failure to preserve misconduct claims where “the record does not
establish that properly framed objections would have been in
vain or provoked any ‘wrath’ on the part of the trial court; rather,
all indications are that the court was reasonably responsive to
defense objections throughout the trial”]; People v. Friend, supra,
47 Cal.4th at pp. 29-30 [exception to forfeiture was inapplicable
because, given the court sustained several of defense counsel’s
frequent objections to the prosecutor’s conduct, the record showed
“the trial court kept a firm hand on the actions of the attorneys
and maintained a fair proceeding”].)

26
 c. Pauldo’s remaining arguments do not establish
prosecutorial misconduct requiring reversal of his
conviction
i. Referring to Pauldo’s 2015 assault conviction
as a conviction for “a PC 245(a)(4), assault
causing grievous bodily injury”
Pauldo argues the prosecutor engaged in misconduct
because, by referring, as discussed, to Pauldo’s 2015 assault
conviction as “a PC 245(a)(4), assault causing grievous bodily
injury” in his question to Pauldo, he included facts underlying
Pauldo’s prior conviction and violated the trial court’s prior
evidentiary ruling. (People v. Johnson (1978) 77 Cal.App.3d 866,
873 [“[a] prosecutor who improperly cross-examines a defendant
in order to place inadmissible prejudicial evidence before the jury
is guilty of misconduct”; “[i]mproper questions that violate a
previous ruling by the trial court are particularly inexcusable”].)
Pauldo grossly overstates the nature of the prosecutor’s
mistake. The prosecutor told the court Pauldo’s 2015 aggravated
assault conviction was based on his use of a shiv to stab a
security guard in the face when enraged by a demand that he
leave a bar. When arguing for permission to use that conviction
to cross-examine Pauldo, the prosecutor contended that Pauldo
had shaved down the golf club used as a weapon in this case,
creating a “modified shiv,” and that his violent behavior in both
instances was similar. It was these underlying facts regarding
the 2015 conviction that the trial court excluded as unduly
prejudicial. The challenged question did not in any way refer to
those facts.
To be sure, the prosecutor misidentified Pauldo’s 2015
conviction, which was for assault by means of force likely to cause
great bodily injury, as assault causing grievous bodily injury—a

27
distinction unlikely to be significant to most jurors. Whether use
of either descriptor clearly violated the court’s ruling not to refer
to the underlying facts of the offense is debatable. In any event,
the court reasonably believed it had neutralized any improper
reference by striking the question and directing the prosecutor to
simply call the 2015 offense an assault. The prosecutor’s
erroneous description was neither deceptive nor reprehensible
and did not render Pauldo’s trial fundamentally unfair. Having
struck the question, the court’s decision not to further instruct
the jury that the prosecutor had violated a ruling was well within
its discretion.
ii. The prosecutor’s expressing surprise at his
witnesses’ memory
Pauldo contends the prosecutor engaged in misconduct
when he stated during closing argument, “The defense asked a lot
of questions about my witnesses. . . . Actually, I am surprised
that they remembered what they talked about back in March of
20—,” which prompted the trial court to tell the prosecutor to
“[j]ust be careful” after defense counsel objected on the ground of
vouching.
“‘Improper vouching occurs when the prosecutor either
(1) suggests that evidence not available to the jury supports the
argument, or (2) invokes his or her personal prestige or depth of
experience, or the prestige or reputation of the office, in support
of the argument.’” (People v. Rodriguez (2020) 9 Cal.5th 474, 480;
see People v. Thomas (1992) 2 Cal.4th 489, 529 [“the prosecutor
may not interject a personal belief in the merits of the case, as
opposed to a belief based on the evidence produced at trial”].)
Prosecutors may not “offer their personal opinions when they are
based solely on their experience or on other facts outside the

28
record.” (People v. Huggins (2006) 38 Cal.4th 175, 207.) “‘[T]he
prosecutor’s comments must . . . be evaluated in the context in
which they were made, to ascertain if there was a substantial
risk that the jury would consider the remarks to be based on
information extraneous to the evidence presented at trial.’”
(People v. Lopez (2008) 42 Cal.4th 960, 971.)
The prosecutor did not engage in improper vouching. It is
clear from his comments his expression of surprise at what his
witnesses remembered—that is, the impressiveness of their
memory—stemmed from the content of his witnesses’ trial
testimony and the length of time that had elapsed since the
events being recalled, evidence equally available to the jury. (See
People v. Rodriguez, supra, 9 Cal.5th at p. 480 [“[a] prosecutor . . .
may make assurances regarding the apparent honesty or
reliability of a witness based on the facts of [the] record and the
inferences reasonably drawn,” internal quotation marks omitted];
see also People v. Lopez, supra, 42 Cal.4th at p. 971 [“[T]he
prosecutor’s comment did not imply that she based her belief in
defendant’s guilt on evidence not presented at trial. To the
contrary: Because her statement that she believed defendant
was guilty immediately followed her comment that, in her view,
defense counsel’s cross-examination of the victims demonstrated
that they were credible, a reasonable juror would most likely
infer that the prosecutor based her belief in defendant’s guilt on
the credibility of the victims’ testimony at trial”].)
iii. The prosecutor’s alleged misstatement of the
law of reasonable doubt in closing argument
In her closing argument defense counsel told the jury, “I
will give you examples of what reasonable doubt means. It
means you have a doubt that is reasonable. Something doesn’t

29
add up. You still have questions. . . . If you have one doubt in
your mind that is reasonable, the weight of a feather, you must
vote not guilty. . . . There is one fact, the weight of a feather, you
find unreasonable, you must vote not guilty. That is the
standard in our criminal courtrooms.”
Subsequently, in his final closing argument the prosecutor
told the jury he wanted “to make some corrections” in defense
counsel’s argument about the applicable legal standard. He said
the standard was neither, as had been argued by defense counsel,
“if you have unanswered questions, essentially those can be
reasonable doubts” nor “if you don’t know a particular fact, that
is a reasonable doubt.” If the standard were that he had “to
prove every fact and every piece of information to [the jury]
beyond a reasonable doubt,” the prosecutor stated, there would be
“no way” he would be able to do so.
The prosecutor argued he only needed to prove beyond a
reasonable doubt each of the elements of the two charges against
Pauldo and then provided examples of facts he was not obligated
or able to prove beyond a reasonable doubt, such as the exact
location the incident occurred. The prosecutor continued, “What I
can prove to you beyond a reasonable doubt is that he was struck
with a deadly weapon, and that is the standard that you have to
apply. If you start saying every single unanswered question is a
reasonable doubt, then you are . . . never going to convict. There
[are] other juries on this floor right now that will apply that same
standard, and they are going to have unanswered questions, and
they are still going to be comfortable convicting beyond a
reasonable doubt—.” Defense counsel objected on the ground of
“misstatement of the law,” an objection the trial court overruled.

30
 On appeal Pauldo argues the prosecutor engaged in
misconduct because, by his comments, he had “misstated the law
of reasonable doubt and absolved [himself] from overcoming
reasonable doubt by comparing the individual opinion of each
juror with what other juries would do.” He contends the
prosecutor’s comments that there were “other juries on this floor
right now that will apply that same standard, and they are going
to have unanswered questions, and they are still going to . . .
convict[ ]” contravene CALCRIM No. 3551, which instructs in
part, “Each of you must decide the case for yourself and form
your individual opinion after you have fully and completely
considered all of the evidence with your fellow jurors. It is your
duty as jurors to deliberate with the goal of reaching a verdict if
you can do so without surrendering your individual judgment.
Do not change your position just because it differs from that of
other jurors or just because you or others want to reach a verdict.
Both the People and the Defendant are entitled to the individual
judgment of each juror.”
“‘“[I]t is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its prima facie obligation to overcome
reasonable doubt on all elements.”’” (People v. Bell (2019)
7 Cal.5th 70, 111.) “‘When attacking the prosecutor’s remarks to
the jury, the defendant must show that, “[i]n the context of the
whole argument and the instructions” [citation], there was “a
reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.”’”
(People v. Centeno, supra, 60 Cal.4th at p. 667.) “‘In conducting
this inquiry, we “do not lightly infer” that the jury drew the most

31
damaging rather than the least damaging meaning from the
prosecutor’s statements.’” (Ibid.)
Pauldo fails to show the prosecutor’s remarks about other
juries misstated the law. The point of the comments was simply
that, contrary to defense counsel’s suggestions, not all
unanswered questions, however trivial, necessarily preclude a
finding of guilt beyond a reasonable doubt. Pauldo cites no legal
authority that this rather unremarkable statement is incorrect.
(Cf. Kaufman v. Goldman, supra, 195 Cal.App.4th at p. 743;
Mansell v. Board of Administration, supra, 30 Cal.App.4th at
pp. 545-546.)
As for any purported misstatement of the legal principles
contained in CALCRIM No. 3551, the prosecutor did not state the
law permits the jurors to abandon their duty to decide the case
for themselves, change their position just because it differs from
that of other jurors or otherwise act in contravention to those
principles. Moreover, before the commencement of closing
arguments, the trial court instructed the jury, “It is up to all of
you, and you alone, [to] decide what happened, based only on the
evidence that has been presented to you in this trial. . . . If you
believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.” Again, after
closing arguments, the trial court instructed the jury to decide
the case for itself: “Each of you must decide the case for yourself,
but only after you have discussed the evidence with other jurors.
Do not hesitate to change your mind if you become convinced that
you are wrong. But do not change your mind just because other
jurors disagree with you.” In the context of the entire argument
and the instructions, it was not reasonably likely the jury either
understood the prosecutor’s comments to mean the law permitted

32
the jurors to surrender their independent judgment or otherwise
act in a manner contrary to the principles set forth in
CALCRIM No. 3551 or applied his remarks to do so.
3. The Trial Court’s Instruction to the Deadlocked Jury
Was Not Improper
a. Background
On December 10, 2019 the trial court received a note from
the jury that stated, “We are a hung jury. Next step?” At that
point the jury had deliberated for slightly less than two hours. At
the court’s request the presiding juror clarified the jury was
deadlocked as to both counts and stated the jury had taken four
ballots.
The court asked, “Without telling me how many voted each
way, let me ask you, on the first ballot what was the actual split?
Ten to two, six to six?” After some initial confusion the presiding
juror explained the first vote was 10 to two on count 1 and nine to
two, with one juror needing additional information, on count 2.
The court also inquired, “Without telling me which way was the
vote, which was the last ballot?” The foreperson responded the
most recent ballot showed a vote of 11 to one on both counts.
The court asked the presiding juror if there was anything
he thought it could do to assist in reaching a verdict; the
presiding juror replied he did not think so. The court then made
the following statements to the jury:
“You all have been deliberating two hours. I appreciate
your hard work. As you might imagine a lot of work goes into a
trial. A lot of resources go into a trial. I would say the evidence
in this case took about three days or so. You have been
deliberating two hours. I very much appreciate that.

33
 “Because it is 20 minutes to three in the afternoon, I can’t
take a hung jury from you right now. I believe you should
deliberate a little bit longer. I am going to order you back in
there. I am not going to tell you how to deliberate. I will ask you
to come back and talk some more. If you get close to four [o’]clock
and you are still hung, please tell me. A lot of resources are put
in a trial, and we would like to have a verdict.
“I thank you all very much for your hard work and ask you
to continu[e] your actual deliberations at this time.”
Almost an hour after being asked to continue its
deliberations, the jury returned to the courtroom. Although the
jury remained deadlocked as to count 2, it had reached a verdict
of guilty on count 1.
b. The trial court’s statements did not constitute an
erroneous Allen-type or mini-Allen charge
Pauldo contends the trial court’s statement to the jurors
that a lot of work and resources go into a trial, as well as its
statement “[a] lot of resources are put in a trial and we would like
to have a verdict,” constituted an Allen-type or mini-Allen charge
proscribed by the Supreme Court in People v. Gainer (1977)
19 Cal.3d 835 (Gainer) and People v. Barraza (1979) 23 Cal.3d
675 (Barraza).
In Gainer, supra, 19 Cal.3d 835, the Supreme Court
considered for the first time the propriety of an instruction, given
to jurors reporting difficulty in reaching a verdict, “of a type
commonly referred to either as the ‘Allen charge,’” a name
derived from the United States Supreme Court case Allen v.
United States (1896) 164 U.S. 492, “or the ‘dynamite charge,’” and
concluded further use of the instruction should be prohibited in
California. (Gainer, at pp. 840, 842-843.) The Gainer Court

34
“isolate[d] the two elements frequently found in such instructions
. . . which raise the gravest doubts as to their propriety.” (Id. at
p. 845.)
The first element, which the Court characterized as “most
questionable,” is “the discriminatory admonition directed to
minority jurors to rethink their position in light of the majority’s
views.”4 (Gainer, supra, 19 Cal.3d at p. 845.) Such an
admonition, the Court determined, “would . . . be objectionable as
a judicial attempt to inject illegitimate considerations”—which
the Court identified as the “position of the majority of jurors at
the moment” and the minority’s “own status as dissenters”—“and
as an appeal to dissenting jurors to abandon their own
independent judgment of the case against the accused.” (Id. at
pp. 848-849.) The admonition to minority jurors would also be
objectionable as exerting “‘undue pressure upon the jury to reach
a verdict.’” (Id. at p. 850.)

4 Specifically, in Gainer the trial court’s instruction to the
jury included the statements “if much the larger of your panel are
for a conviction, a dissenting juror should consider whether a
doubt in his or her own mind is a reasonable one, which makes no
impression upon the minds of so many men or women equally
honest, equally intelligent with himself or herself, and [who] have
heard the same evidence with the same attention and with an
equal desire to arrive at the truth and under the sanction of the
same oath. [¶] And, on the other hand, if a majority are for
acquittal, the minority ought seriously to ask themselves whether
they may not reasonably and ought not to doubt the correctness
of a judgment, which is not concurred in by most of those with
whom they are associated, and distrust the weight or sufficiency
of that evidence which fails to carry conviction to the minds of
their fellows.” (Gainer, supra, 19 Cal.3d at p. 841, internal
quotation marks omitted.)

35
 The second element in improper Allen-type instructions is
the direction by the trial court, “‘You should consider that the
case must at some point be decided,’ with its attendant
implication that a mistrial will inevitably result in a retrial.”
(Gainer, supra, 19 Cal.3d at p. 851.) The Court explained “an
instruction which implies that a hung jury will assuredly result
in a retrial” is objectionable as misstating the law because the
case may be dismissed rather than retried and “[t]hus the
inconclusive judgment of a hung jury may well stand as the final
word on the issue of a defendant’s guilt.” (Id. at p. 852.)
The Gainer Court concluded by holding “it is error for a
trial court to give an instruction which either (1) encourages
jurors to consider the numerical division or preponderance of
opinion on the jury in forming or reexamining their views on the
issues before them; or (2) states or implies that if the jury fails to
agree the case will necessarily be retried.” (Gainer, supra,
19 Cal.3d at p. 852.)
In Barraza, supra, 23 Cal.3d 675 the Supreme Court
reviewed the effect of “a jury instruction declaring ‘If you fail to
agree upon a verdict, the case will be tried before another jury,’”
which the Barraza Court “denominated a mini-Allen charge”
because, although it involved Gainer’s second element, the
instruction did not include the direct admonition to minority
jurors that the Gainer Court had determined to constitute the
“more highly prejudicial portion” of a “full Allen charge.”
(Barraza, at pp. 680, 682.) Relying on Gainer, supra, 19 Cal.3d
835, the Barraza Court stated the trial court had clearly erred in
giving the mini-Allen charge to the jury. (Barraza, at p. 683.)
Here, unlike in Gainer, supra, 19 Cal.3d 835, 845, 852, the
trial court did not instruct the jurors with the first element of an

36
improper Allen-type instruction by giving a “discriminatory
admonition directed to minority jurors to rethink their position in
light of the majority’s views” or otherwise “encourage[ ] jurors to
consider the numerical division or preponderance of opinion on
the jury in forming or reexamining their views on the issues
before them.”5 That the trial court’s instruction to continue
deliberations was made to a jury reporting a deadlock of 11 to one
does not render it a discriminatory admonition directed to a
minority juror to reconsider his or her position in light of the
majority’s opposing viewpoint. (See People v. Whaley (2007)
152 Cal.App.4th 968, 974, 983 [characterizing, in a case where
the court ordered jurors to continue deliberations after the jury
reported an 11-to-one deadlock, the trial court’s suggestion to
consider a role-playing method of deliberation that applied to
both the minority and majority jurors as “unlike an improper
Allen charge that asks only the minority jurors to reconsider
their positions”]; cf. People v. Pride (1992) 3 Cal.4th 195, 265-266

5 A trial court may properly inquire as to the numerical
division of the votes without seeking to ascertain the number for
conviction and acquittal. (See, e.g., People v. Howard (2008)
42 Cal.4th 1000, 1030; People v. Proctor (1992) 4 Cal.4th 499,
538; 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012 & 2020
supp.) Criminal Judgment, § 41; see also People v. Brooks (2017)
3 Cal.5th 1, 90 (Brooks) [rejecting contention the trial court’s
inquiry into the numerical split in the jury’s votes was coercive as
communicating to the minority jurors that the court “wanted
them to change their minds” because at no time did the court
suggest to the jurors they should reconsider their views in light of
the numerical breakdown of the votes and, when questioning the
presiding juror, the court cautioned him to provide only the
numerical breakdown of the deadlock and not which way the
votes went].)

37
[trial court did not err in requesting jury continue to deliberate
after learning of 11-to-one vote].)
The trial court also did not instruct the jury with the
second element of an improper Allen-type instruction—directing
that the case must at some point be decided or otherwise stating
or implying that a failure of the jury to agree would necessarily
result in a retrial. Relying on language in Barraza that he quotes
out of context, Pauldo contends the jury would “naturally infer[ ]
. . . the possibility of a retrial” from the trial court’s statements
that a lot of work and resources go into a trial. However, the
Barraza Court did not hold that referring to the resources
devoted to a trial should be construed as improperly implying a
retrial would occur if the jury were to fail to agree. Rather, the
Court, which had already determined the trial court’s statement
“‘If you fail to agree upon a verdict, the case will have to be tried
before another jury’” constituted an improper mini-Allen charge,
considered the prejudicial impact of that charge. It concluded
that the trial court’s statement regarding expenses that had been
incurred by both parties,6 although not expressly linked to the
expense of a prospective retrial, nevertheless improperly implied

6 In Barraza, the trial court instructed the jury, which had
reported a deadlock, “For the parties involved, the case is an
important one, and its presentation to you has involved expenses
to both sides. If you fail to agree upon a verdict, the case will
have to be tried before another jury selected in the same manner
and from the same source as you were chosen. There is no reason
to believe that the case will ever be submitted to a jury more
competent to decide it.” (Barraza, supra, 23 Cal.3d at pp. 681-
682.)

38
“the expense and inconvenience of a retrial”7 because “the link is
obvious and will naturally be inferred by the jurors once the
subject is introduced.” (Barraza, supra, 23 Cal.3d at p. 685.)
Because an improper reference to the expense of a retrial
“augments the substantial, if subtle, pressure created by the
improper instructions concerning the need for retrial,” the Court
concluded the improper mini-Allen charge was prejudicial and
necessitated reversal of the conviction. (Ibid.) In contrast, the
trial court’s comments in the case at bar did not introduce the
subject of a retrial or otherwise state or imply that a failure of the
jury to agree would inevitably result in a retrial. Those
comments thus did not implicate the second element of an
improper Allen-type instruction identified in Gainer by
misstating the law as to retrials.
Of course, a trial court’s instruction to an apparently
deadlocked jury may be improper even if it does not contain the
two elements expressly proscribed by Gainer. A court “must
exercise its power [to order further deliberations] . . . without
coercing the jury, and ‘avoid displacing the jury’s independent
judgment “in favor of considerations of compromise and
expediency.”’” (People v. Brooks (2017) 3 Cal.5th 1, 88 (Brooks).)
“Coercion occurs where ‘the trial court, by insisting on further
deliberations, expresse[s] an opinion that a verdict should be
reached.’” (People v. Peoples (2016) 62 Cal.4th 718, 783.)
In Brooks, supra, 3 Cal.5th at pages 88 through 89 the
Supreme Court considered and rejected the defendant’s

7 As observed by the Barraza Court, the Gainer Court, in a
footnote, stated a reference to the expense and inconvenience of a
retrial is impermissible. (Gainer, supra, 19 Cal.3d at p. 852,
fn. 16; Barraza, supra, 23 Cal.3d at p. 685.)

39
contention the trial court’s instruction to continue deliberations
after the jurors had reported a deadlock coerced the jury’s
penalty verdict. As observed by the Court, the trial court did not
“either express or imply to the jurors that they must reach a
unanimous verdict, or a particular outcome.” (Id. at p. 89.)
Although the trial court in Brooks remarked to the jury that
“[e]ach and every one of us in this courtroom has a lot invested in
the case in terms of our time, our energy, and if we can reach a
decision, I’d like to,” the court clarified immediately after making
its remark it was “not suggesting that [the jury] should reach any
decision one way or the other” and had earlier expressly stated it
was not “looking for a certain decision . . . or favoring a certain
decision” from the jurors. (Brooks, at p. 90, internal quotation
marks & italics omitted.) Accordingly, “[v]iewing the [trial]
court’s remarks as a whole,” the Brooks Court “conclude[d] the
jury would not have understood the comments as a warning that
failure to reach a verdict would waste both the parties’ time and
judicial resources.” (Ibid.; see People v. Peoples, supra, 62 Cal.4th
at p. 783 [concluding “[t]he trial court’s statements to the jury,
given the totality of the circumstances, were not coercive”
because, “[a]lthough the trial court’s statement that 21.5 hours of
deliberation was a ‘drop in the bucket,’ when read in isolation,
could be construed as an inducement to reach a verdict, the trial
court’s complete remarks do not suggest that the court crossed
the line from encouragement to coercion”].)
Similarly, although Pauldo argues, by informing the jury
that “[a] lot of resources are put in a trial and we would like to
have a verdict,” the trial court coerced the jury’s verdict on
count 1, the trial court’s instructions, viewed as a whole, were not
coercive. The court did not express or imply at any time that the

40
jurors must reach a unanimous verdict or a particular outcome.
Indeed, before the jurors commenced their deliberations, the
court instructed with CALCRIM No. 3550, stating in part, “You
should try to agree on a verdict if you can. Each of you must
decide the case for yourself, but only after you have discussed the
evidence with the other jurors. Do not hesitate to change your
mind if you become convinced that you are wrong. But do not
change your mind just because other jurors disagree with you.”
(See People v. Reed (2018) 4 Cal.5th 989, 1015-1016 [the court’s
instructions before commencement of the jury’s deliberations—
specifically, “‘each of you must consider the evidence for the
purpose of reaching a verdict if you can do so,’” “‘each of you must
decide the case for yourself’” and the jurors should not “‘decide
any question in a particular way because a majority of the jurors,
or any of them, favor that decision’”—“‘adequately conveyed that
jurors did not need to reach a verdict, and that they should not
acquiesce in a verdict with which they did not agree’”].)
Even after the jury reported it was deadlocked on both
counts, the trial court advised the jury, “I am not going to tell you
how to deliberate.” It also directed the presiding juror not to tell
it how many jurors voted each way, thus “communicat[ing] to the
jury that [it] was not concerned with the direction of the voting.”
(Brooks, supra, 3 Cal.5th at p. 90.)
More fundamentally, Pauldo’s argument the trial court’s
instruction suggested a verdict had to be reached is belied by the
court’s clear indication that, if deliberations continued for
another hour—until 4:00—without verdicts, the court would then
declare it a hung jury. The court was simply asking the jurors to
finish the day before concluding they were hopelessly deadlocked,
and it did so in entirely appropriate language.

41
 In addition, defense counsel did not object in the trial court
to the court’s instruction to the deadlocked jury that Pauldo now
contends were coercive, which further indicates the jury similarly
would not have perceived the court’s remarks as coercive. (See
People v. Whaley, supra, 152 Cal.App.4th at p. 983 [concluding
trial court’s instruction to the deadlocked jury was not coercive in
part because “we observe that the United States Supreme Court
has stated that where, as here, defense counsel does not object to
a supplemental instruction, ‘such an omission indicates that the
potential for coercion argued now was not apparent to one on the
spot’”], quoting Lowenfield v. Phelps (1988) 484 U.S. 231, 240.)
Finally, that the jury remained deadlocked on one of the two
counts charged confirms the jurors did not view the court’s
remarks as an appeal to abandon their own independent
judgment in favor of considerations of compromise and
expediency or as otherwise coercive.
4. The Trial Court Did Not Commit Reversible Error in
Instructing with an Unmodified Version of CALCRIM
No. 875
a. People v. Aledamat and alternative-theory error
Instructing the jury on the elements of assault with a
deadly weapon using CALCRIM No. 875, the court stated, in
part, “a deadly weapon other than a firearm is any object,
instrument, or weapon that is inherently deadly or one that is
used in such a way that it is capable of causing and likely to
cause death or great bodily injury.” It did not include additional
(optional) language in CALCRIM No. 875 that defines an

42
inherently deadly weapon as one that “is deadly or dangerous in
the ordinary use for which it was designed.”
In People v. Aledamat (2019) 8 Cal.5th 1 (Aledamat), a
section 245, subdivision (a)(1), aggravated assault case involving
use of a box cutter,8 the Supreme Court determined it was error
to instruct the jury pursuant to CALCRIM No. 875 that a weapon
could be either inherently deadly or deadly in the way it had been
used when the weapon could not be inherently deadly as a matter
of law.9 Because the trial court did not define “inherently deadly”
and thus “the jury would not be equipped to know that, contrary

8 In Aledamat the defendant had threatened to kill his victim
with a box cutter “from three or four feet away.” The jury found
him guilty of assault with a deadly weapon and making a
criminal threat and, as to the threat charge, found true the
section 12022, subdivision (b)(1), allegation that defendant
personally used a deadly or dangerous weapon. (Aledamat,
supra, 8 Cal.5th at pp. 4-5.)
9 The Aledamat Court explained, “‘Some few objects, such as
dirks and blackjacks, have been held to be deadly weapons as a
matter of law; the ordinary use for which they are designed
establishes their character as such. [Citation.] Other objects,
while not deadly per se, may be used, under certain
circumstances, in a manner likely to produce death or great
bodily injury. In determining whether an object not inherently
deadly or dangerous is used as such, the trier of fact may consider
the nature of the object, the manner in which it is used, and all
other facts relevant to the issue.’” (Aledamat, supra, 8 Cal.5th at
p. 6.) Noting a knife can be, and usually is, used for innocent
purposes and a boxcutter is a “‘type of knife’ . . . ‘. . . designed to
cut things and not people,’” Aledamat reaffirmed, “‘[A] box cutter
cannot be an inherently deadly weapon “as a matter of law”’” (Id.
at pp. 6, 8.)

43
to what the instruction suggested, a box cutter is not an
inherently deadly weapon” (Aledamat, at p. 8), the error in
permitting the jury potentially to convict the defendant under the
legally erroneous theory a box cutter was inherently deadly had
to be evaluated under the “beyond a reasonable doubt” standard
of review established in Chapman v. California (1967) 386 U.S.
18, 24 (Chapman) for federal constitutional error. (Aledamat, at
p. 3.) Explaining application of the Chapman standard in a case
involving alternative-theory error constituting a
“misdescription[ ] of the elements of the charged offense,” the
Court held, “The reviewing court must reverse the conviction
unless, after examining the entire cause, including the evidence,
and considering all relevant circumstances, it determines the
error was harmless beyond a reasonable doubt.” (Id. at pp. 9,
13.)10 Applying that standard to the case before it, the Supreme
Court held it was clear beyond a reasonable doubt the error did
not contribute to the verdict: Although a box cutter is not
inherently deadly, “if used to assault someone, i.e., used as a
weapon, a box cutter is potentially deadly even if not designed for
that purpose.” (Aledamat, at p. 14.)
b. Any alternative-theory error was harmless beyond a
reasonable doubt
Pauldo argues, because a golf club is not designed to be
used as a deadly weapon (see People v. Koback (2019)
36 Cal.App.5th 912, 934 [“[w]e infer a likelihood of serious injury

10 The Court expressly disapproved cases that “limit[ed] the
reviewing court to an examination of the jury’s findings as
reflected in the verdict itself” in alternative-theory cases.
(Aledamat, supra, 8 Cal.5th at p. 13.)

44
when people use inherently dangerous weapons in assaults
because those weapons are specifically designed to inflict such
injury”; however, “the same is not true for golf clubs . . . and other
generally innocuous objects”]), the trial court, by instructing the
jury on the elements of aggravated assault with an unmodified
version of CALCRIM No. 875, which referred to both a weapon
that is inherently deadly and one that is used in such a way that
it is likely to cause death or great bodily injury, committed
prejudicial alternative-theory error under Aledamat. Whatever
the merits of Pauldo’s contention of alternative-theory error, any
such error was harmless beyond a reasonable doubt in the
circumstances of this case.
The theoretical danger in the erroneous instruction at issue
in Aledamat was that, without a definition of an inherently
deadly weapon, the jurors “could reasonably classify a box cutter,
which is sharp and used for cutting, as inherently dangerous
based on the common understanding of the term” and, thus,
potentially convicted the defendant regardless of the manner in
which he had used the box cutter. (Aledamat, supra, 8 Cal.5th at
p. 8.) No similar risk exists with respect to an allegation the
defendant assaulted the victim with a golf club. As a practical
matter, a reasonable juror could find a deadly weapon was used
in the attack only if he or she determined the golf club was, in
fact, wielded in a manner that could cause death or great bodily
injury.
The prosecutor emphasized the need for this finding in his
closing argument, which did not refer to the inherently deadly
concept but instead explained to the jury the golf club was
“potentially” deadly depending on its use: “[T]here are really
four acts with a deadly weapon. [¶] . . . [T]he first three are the

45
strikes with the golf club. The first three times [Pauldo] strikes
[Rivera] when [Rivera] is holding up the chair, each of those is
sufficient to be an act with a deadly weapon. There is no dispute
a metal golf club is potentially a deadly weapon. . . . If it hits you,
it can knock you unconscious, cause brain trauma, chip your
teeth. Anyone knows a golf club to the head, especially utilized
with the force enough to break it in half, is probably sufficient to
cause grievous bodily injury. [¶] . . . [¶] When you try to strike
someone with a golf club or try to stab them with a metal stick in
the face, especially if you are making contact with them or the
chair they are holding, that is sufficient to know that could
directly result in the application of force.” For her part, defense
counsel argued Pauldo had acted in self-defense when he struck
Rivera with the golf club, never suggesting that Pauldo did not
use the club in a manner capable of inflicting great bodily injury.
(See Aledamat, supra, 8 Cal.5th at p. 14 [“[t]he arguments of
counsel support [the] conclusion” it was “unlikely the jury would
simply view the box cutter as inherently deadly without
considering the circumstances, including how defendant used
it”].)
In addition, in connection with the section 12022,
subdivision (b)(1), deadly weapon enhancement alleged as part of
the count charging Pauldo with making a criminal threat, the
court, using CALCRIM No. 3145, instructed, “‘In determining
whether or not an object is a deadly weapon, consider all the
surrounding circumstances, including when and where the object
was possessed . . . and any other evidence that indicates whether
the object would be used for a dangerous, rather than a harmless,
purpose.” The Aledamat Court, quoting substantially the same
language in the trial court’s instruction on the deadly weapon

46
enhancement for the charge of making a criminal threat,
concluded, “Given this additional instruction, it seems unlikely
the jury would simply view the box cutter as inherently deadly
without considering the circumstances, including how defendant
used it.” (Aledamat, supra, 8 Cal.5th at pp. 4, 14; cf. id. at p. 21
(conc. & dis. opn. of Cuéllar, J.).)11
By finding Pauldo guilty of aggravated assault, the jury
necessarily rejected his argument that he had been acting in self-
defense when, as established by the evidence including Pauldo’s
own testimony, he swung the golf club toward Rivera, breaking it
upon impact with the chair held by his victim. No reasonable
jury could have failed to find “a golf club swung repeatedly as a
bludgeon at an individual hard enough to break it” (as Pauldo
himself characterizes the incident at bar) was “used in such a
way that it was capable of causing and likely to cause death or
great bodily injury,” even if it were theoretically possible the jury
had also believed it to be inherently deadly. (Cf. Aledamat,
supra, 8 Cal.5th at p. 15 [“‘[n]o reasonable jury that made all of
these findings could have failed to find’ that defendant used the
box cutter in a way that is capable of causing or likely to cause
death or great bodily injury”].)

11 In his separate opinion Justice Cuéllar expressed concern
that the additional instruction applied to the deadly weapon
enhancement and not specifically to the assault charge.
(Aledamat, supra, 8 Cal.5th at p. 21.) In the case at bar,
however, the court instructed the jury to “[p]ay careful attention
to all of these instructions and consider them together.”

47
 DISPOSITION
The judgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

48