Filed 6/29/21 P. v. Plascencia CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B303180
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. VA147630)
v.
DANIEL PLASCENCIA,
Defendant and Appellant.
APPEAL from a judgement of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Affirmed as modified.
Janet Uson, 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, Scott A. Taryle and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Daniel Plascencia appeals from convictions for voluntary
manslaughter and related firearm and robbery charges. On
appeal, he claims: (1) the trial court abused its discretion in
admitting character evidence, unreliable hearsay, and evidence
appellant was hiding out with fellow gang members; (2) the court
prevented him from putting on a defense by excluding portions of
his testimony; (3) the court failed properly to instruct the jury;
(4) the prosecutor committed misconduct during closing
argument; (5) the evidence established as a matter of law that
appellant acted in self-defense; and (6) the sentence on one of the
assault counts must be stayed under Penal Code section 654.1
We agree with appellant that one of his assault counts
must be stayed under section 654. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Appellant’s Relationship with the Victim’s Sister
Appellant and Graciela Hernandez dated for 10 years and
had two children together. Their relationship deteriorated after
appellant started using drugs and became emotionally and
physically abusive. Eventually they lived apart. The murder
victim, Graciela’s brother Fernando Hernandez, was very
protective of Graciela, and unhappy about appellant’s
harassment.2 Both Fernando and appellant were members of the
Loco Park gang; appellant’s moniker was “Heat.”
During the months prior to the shooting, appellant choked
Graciela, and harassed her at work and home. He once came to
1 All further undesignated statutory references are to the
Penal Code.
2 We refer to siblings Graciela and Fernando by their first
names for clarity’s sake. We intend no disrespect.
2
her house and flashed a gun before taking the children. Graciela
told him she was going to get custody of their children, and he
would have to use the “court system” to see them.
2. The Shooting
The day before the shooting, appellant showed up at
Graciela’s workplace asking her to arrange a visit with the
children. She called the police, who advised her to get a
restraining order. The next morning, Graciela told Fernando she
intended to go to the courthouse to apply for a restraining order.
Fernando helped her install security cameras at the house.
Later that day, Fernando returned from an errand to find
the appellant’s moniker (“Heat”) written on the front window of
his house. Surveillance footage showed appellant standing at the
window. Fernando was upset, and drove to appellant’s home
with his uncle and cousin. When they arrived, Fernando walked
up the driveway calling for appellant, while his relatives stayed
in the car. Appellant came out of the house and shot Fernando in
the chest multiple times. Fernando pulled out a gun and
unsuccessfully returned fire.
Fernando staggered to the grass, mortally wounded, and
appellant ran to Fernando’s car in which Fernando’s uncle and
cousin were still sitting. Appellant, still holding his gun, took the
car keys out of the ignition. Appellant then rode away on his
bike. The uncle called 911. Fernando had suffered four gunshot
wounds and died moments later.
3. The Charges
The police arrested appellant two days later at a residence
where other members of his gang were present. The district
attorney charged appellant with murder (§ 187, subd. (a)), two
counts of assault with a semiautomatic firearm (§ 245, subd. (b)),
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possession of a firearm by a felon (§ 29800, subd. (a)(1)), unlawful
possession of ammunition (§ 30305, subd. (a)(1)), and robbery
(§ 211). Firearm and prior prison term enhancements were also
alleged. Appellant pled not guilty and denied all allegations.
4. Trial
a. Graciela’s Testimony
Graciela testified about appellant’s harassment and
physical abuse. He stalked her, broke her phone, deflated one of
her tires, and flashed a gun at her. As for direct physical abuse,
she testified he “choke[d] [her] out.” According to Graciela,
appellant always carried a semiautomatic gun.
b. Fernando’s Uncle’s Testimony
Fernando’s uncle testified that, on the day of the shooting,
Fernando became upset when he saw appellant’s graffiti on the
window of his house. Fernando, who wanted “to go talk to
[appellant], just to settle matters,” drove to appellant’s house
with his uncle and cousin in the back seat. Once they arrived,
Fernando, from the driveway, called out to appellant. Appellant
came out of his house and approached Fernando. Fernando said,
“ ‘Why are you doing—continue doing this?’ ”
Appellant then “returned back to his house, and when he
came back, he . . . sa[id] ‘This is what you want,’ he opened the
door—and—and he shot [Fernando] in the chest a few times.”
Only after appellant had shot Fernando did Fernando pull out a
gun.
After the shooting, appellant approached Fernando’s car
and pointed a gun at the uncle’s and cousin’s heads. Appellant
asked them if they “had something against him.” The uncle “told
him that he was a coward.” Appellant took the car keys and,
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before leaving on a bicycle said, “ ‘This is what he wanted,’ ” and
“laughed about what he had done.”
c. Fernando’s Cousin’s Testimony
Fernando’s cousin also testified at trial, but claimed not to
remember the shooting. The prosecution received in evidence a
recording and transcript of the cousin’s interview with the police
on the day of the shooting. The cousin told the police that
Fernando and appellant had a history of confrontations.
Fernando had “put hands on [appellant] before . . . beat him
up . . . .” Appellant, in turn, had sent Fernando a text message
three months prior, saying “one of us gonna be dead and either
you or me.” When asked if Fernando had ever said he “wanted to
shoot somebody,” the cousin said “ ‘only if, if they mess with his
family. . . .’ ” The cousin had seen Fernando in many fights and
told police Fernando believed that “when you fuck with family,
you know, bang is necessary.”
The cousin also told police that the day of the shooting,
Fernando “exploded” when he saw the graffiti on his window.
Fernando drove to appellant’s house and walked up the driveway
calling appellant’s name, “screaming it loud.” Fernando yelled
“come out and get down [¶] . . . [¶] saying all this like he wants to
confront [appellant] . . . .” Appellant came out of the house and
approached Fernando until they were about five feet apart.
Fernando confronted appellant about the graffiti on his window
and said, “you been doing too much already, . . . we have to get
down or we’re gonna have to draw, draw up . . . .” The cousin
said that Fernando is “always on that tip when it comes to
personal, he always carries his [] handgun . . . .”
The two men were arguing until appellant pulled a gun out
and pointed it at Fernando. Fernando said, “so it’s gonna be like
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that” and reached around his waist to grab his gun when
appellant started shooting. Appellant’s third shot hit Fernando
in the chest. Fernando fired shots in return, missing appellant,
and then the gun fell from his hand. Appellant ran toward
Fernando’s car and opened the passenger door. While grabbing
the car keys, appellant pointed his gun at the cousin and uncle.
Appellant then biked away.
d. The Defense Case
Before appellant took the stand, the parties stipulated he
had been convicted of three prior felony firearm charges and a
felony charge of possession for sale of cocaine.
Appellant testified that he never threatened Graciela or
physically abused her. He and Fernando had a falling out “over
the course of the rocky part” of appellant’s relationship with
Graciela. The parties stipulated that Fernando had pled guilty to
a felony charge of negligent discharge of a firearm. Appellant
testified that he knew about this conviction and was afraid of
Fernando. Fernando’s moniker was “Blam,” “[t]he sounds of a
gun.”
Appellant denied threatening Fernando. According to
appellant, it was Fernando who in the past had threatened to
shoot appellant. When Fernando came to appellant’s house on
the day of the shooting appellant grabbed a gun for protection
before going out to meet Fernando. Once appellant was outside,
Fernando screamed at him, “What the fuck is up with you? Why
are you doing this shit?” Appellant responded, “Quit interfering
with me and my family.” Fernando stated, “Come on. Let’s take
a walk,” which appellant believed to be a challenge to a fight.
After Fernando pointed a gun at appellant, appellant pulled out
his own gun. Both men started shooting simultaneously.
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Appellant acknowledged that, after the shooting stopped,
he took the keys from appellant’s car still holding the gun. He
denied having said anything to Fernando’s uncle or cousin.
Appellant stole the keys because he was afraid they would follow
him. He threw the keys away a few blocks from his house, and
threw his gun in a trash can.
e. Closing Argument
In closing, the prosecutor argued that, according to the
testimony of Fernando’s cousin and uncle, appellant took out his
gun first and fired three shots at Fernando. The prosecutor was
unconvinced with appellant’s claim that he was afraid of
Fernando, and argued that appellant’s action of writing his
moniker on Fernando’s house demonstrated that lack of fear.
The prosecutor pointed to appellant’s decision to bring his gun
with him when he approached Fernando as evidence of
premeditation and deliberation.
Defense counsel argued that appellant had acted in self-
defense when he shot Fernando. Counsel highlighted appellant’s
testimony that he only started shooting when Fernando pulled
out his gun, and argued that Fernando’s cousin and uncle were
not credible.
f. Sentencing
The jury convicted appellant of second degree murder and
found him guilty of the remaining charges. The jury also found
the firearm allegations to be true. Over the prosecution’s
objection, the trial court reduced the murder conviction to
voluntary manslaughter. The court sentenced appellant to 25
years 4 months.
The court imposed a base term of 11 years on the
manslaughter count, plus a 10-year term for a firearm
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enhancement, and a consecutive term of 1 year for the robbery
charge plus 3 years 4 months for a firearm enhancement. The
court imposed concurrent terms for the remaining counts:
6 years plus a 3-year enhancement for each of the assault with a
firearm counts, and 2 years each for the felon in possession and
unlawful possession of ammunition counts.
Appellant filed a timely notice of appeal.
DISCUSSION
1. The Trial Court’s Evidentiary Rulings
Appellant argues the trial court erred in admitting
(1) statements by Fernando’s cousin about appellant’s physical
abuse of Graciela, (2) the cousin’s statement about appellant’s
text message to Fernando, and (3) evidence that appellant was
arrested in the company of fellow gang members. In appellant’s
view, the statement about the physical abuse was inadmissible
character evidence, the text message reference was unreliable
hearsay, and the testimony about gang members was unduly
prejudicial.
Appellant also argues the trial court erred in excluding
appellant’s own testimony about (1) claimed harassment of
Graciela and (2) Fernando’s violent character. We review trial
court rulings on the admissibility of evidence for abuse of
discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 717.)
A. The Statement Appellant Physically Abused
Graciela
During a detective’s recorded interview with Fernando’s
cousin, the cousin said although he had not seen appellant hit
Graciela he had “seen some marks on her neck like strangle . . . .”
Appellant argues this statement had little probative value and
prejudicially suggested he had a propensity for violence.
8
Respondent argues the statement was admissible to show
appellant had a violent character given that appellant had
announced an intent to present evidence of Fernando’s violent
character.
“[I]f the defendant has offered ‘evidence that the victim had
a character for violence or a trait of character tending to show
violence,’ the prosecution is permitted to offer ‘evidence of the
defendant’s character for violence or trait of character for violence
(in the form of an opinion, evidence of reputation, or evidence of
specific instances of conduct)’ in order ‘to prove conduct of the
defendant in conformity with the character or trait of character.’
([Evid. Code,] § 1103(b), italics added.)” (People v. Fuiava (2012)
53 Cal.4th 622, 695–696 (Fuiava).)
Here, in defense counsel’s opening statement, he told the
jury the evidence would show appellant knew Fernando was
violent and had good reason to fear him. By proffering evidence
of the victim’s violent character, the defense opened the door to
evidence of appellant’s own character. Appellant does not dispute
respondent’s argument that Fernando’s cousin’s statement about
marks on Graciela’s neck was admissible under Evidence Code
section 1103, but instead argues the evidence was unduly
prejudicial and had little probative value under Evidence Code
section 352.
Given that the central issue in this case was whether
appellant acted in self-defense when he shot Fernando,
appellant’s propensity for violence was highly probative. The
subject evidence was also not particularly prejudicial because
Graciela had already testified that appellant “choke[d] [her] out.”
The court acted within its discretion in admitting the statement
9
both under state law and constitutional principles.3 (See Fuiava,
supra, 53 Cal.4th at p. 670 [where the trial court does not abuse
its discretion under state law in admitting evidence, the
admission also does not violate the defendant’s right to a fair
trial].)
B. Appellant’s Text Message to Fernando
The recorded interview Fernando’s cousin gave to police
was played for the jury. In the interview, the cousin said that he
saw a text message appellant had sent to Fernando stating,
“[W]e’re gonna, . . . one of us gonna be dead and either you or
me.” The text message itself was not introduced in evidence.
Appellant argues this evidence was hearsay and untrustworthy
because the prosecution did not provide additional evidence, such
as the original text message, to corroborate the cousin’s
recollection.
“Evidence of a statement is not made inadmissible by the
hearsay rule when offered against the declarant in an action to
which he is a party . . . .” (Evid. Code, § 1220.) Assuming the
statement is relevant, appellant’s hearsay statement is
admissible as a party admission.4 (See People v. Jennings (2010)
3 Respondent made additional arguments in support of the
admissibility of the challenged statements, however, because we
conclude the evidence was admissible under Evidence Code
section 1103, we decline to address those contentions.
4 Appellant states in his opening brief that the evidence
about the text message was inadmissible because it lacked
foundation. We understand appellant’s reference to foundation
not as a separate, albeit undeveloped, argument, but as
shorthand for his more fully developed point that the evidence
was inadmissible because it was “unreliable hearsay.”
10
50 Cal.4th 616, 661–662.)
“A defendant’s threat against the victim [] is relevant to
prove intent in a prosecution for murder.” (People v. Rodriguez
(1986) 42 Cal.3d 730, 757.) Here, appellant’s prior threat was
relevant because it demonstrated his intent to kill, and as the
prosecutor argued, whether he acted with premeditation and
deliberation. (See People v. Farley (2009) 46 Cal.4th 1053, 1107.)
Appellant’s argument that the text was too remote in time and
unreliable because it was uncorroborated affected the weight of
the evidence, not its admissibility. The court acted within its
discretion in admitting this evidence.5 (See Fuiava, supra, 53
Cal.4th at p. 670.)
C. Evidence Appellant was Arrested with Gang
Members
Appellant argues the trial court erred both under state law
and federal constitutional principles in admitting evidence that
he was arrested in the presence of fellow gang members. He
contends this evidence was irrelevant, cumulative, and
inflammatory. We treat the argument as invoking Evidence Code
section 352 and relevance principles. Respondent argues the
5 In his reply brief, appellant argues the text was
inadmissible under Evidence Code section 1523 because the
evidence did not comply with the “best evidence rule.” Not only
was the argument raised for the first time on appeal in the reply
brief, appellant did not object on that ground in the trial court.
The contention is waived. (See Nordstrom Com. Cases (2010) 186
Cal.App.4th 576, 583 [“A party may not raise an issue for the
first time on appeal [citation], and points raised for the first time
in a reply brief on appeal will not be considered, absent good
cause for failure to present them earlier [citation].”].)
11
evidence was relevant to appellant’s consciousness of guilt and
was admissible under Evidence Code section 352.
At trial, a detective testified that appellant was arrested
after leaving a residence where there were confederate gang
members as well as gang paraphernalia. Defense counsel moved
to exclude this evidence under Evidence Code section 352. The
prosecutor argued the information was relevant to appellant’s
self-defense claim, as his actions of leaving the scene and hiding
out with his gang was inconsistent with that claim. The trial
court admitted the evidence.
We agree with respondent that the evidence was relevant
to his consciousness of guilt. (See People v. Vu (2006) 143
Cal.App.4th 1009, 1030 [hiding after a crime is relevant to show
consciousness of guilt].) The reasonable inference from this
evidence was that fellow gang members would be less likely to
report appellant to the police. We also agree with respondent
that it had little prejudicial effect. Not only did the jury already
know that appellant was a gang member, it knew that appellant
and the victim were in the same gang. Because the court acted
within its discretion under state law in admitting this evidence,
the admission did not violate defendant’s right to a fair trial.
(See Fuiava, supra, 53 Cal.4th at p. 670.)
D. Limitations on Appellant’s Testimony
Appellant contends the trial court erred in excluding his
testimony “explaining [appellant’s] incidents with Graciela,” and
about Fernando’s purported statement to appellant that he fired
shots at the ex-boyfriend of Fernando’s wife. Appellant argues
the court’s rulings infringed on his federal constitutional right to
present a defense.
12
i. The Trial Court’s Rulings
When appellant took the stand at trial, his attorney asked
him about Graciela’s claims appellant had harassed her. The
trial court sustained the prosecutor’s relevance objections to
questions about “why” he did not want Fernando to know he
visited Graciela and his kids, whether Graciela did not always
“show up with the kids” to visits, “why” he harassed her,
appellant’s visiting Graciela’s house “uninvited,” and the details
surrounding the incident when he broke her phone.
The court also sustained the prosecutor’s objections to
question about what Fernando told appellant about the incident
underlying Fernando’s conviction for negligent discharge of a
firearm. At side bar, defense counsel made an offer of proof that
appellant would say Fernando told him he shot at his wife’s ex-
boyfriend. In sustaining the objection, the court reasoned that
the jury already knew about Fernando’s conviction for firing a
gun, and appellant’s claim about what Fernando said prior to his
death was untrustworthy.
ii. The Court Did Not Err in Excluding This
Evidence
The court acted within its discretion in excluding this
evidence. First, appellant has not shown why his testimony
“explaining the incidents with Graciela” was “necessary,” as he
claims, “to rebut the prosecution’s inferences that Fernando’s
action of going to appellant’s home while armed was justified,
and that appellant had a character for violence.” Whether
Fernando was justified or not in confronting appellant, the
question before the jury was whether appellant acted in self-
defense when he shot Fernando. The court acted within its
discretion under Evidence Code section 352 in concluding that
13
appellant’s testimony about his reasons for harassing Graciela
distracted from the issues properly before the jury.
Second, as to the prior discharge of a firearm, the court
reasonably determined that Fernando’s alleged statement about
shooting at his wife’s ex-boyfriend lacked sufficient
trustworthiness for admission at trial. Trustworthiness is a
threshold requirement for admission of a hearsay statement
against penal interest under Evidence Code section 1230. (See
People v. Cudjo (1993) 6 Cal.4th 585, 607.) “The determination
whether hearsay evidence is trustworthy rests with the trial
court and will not be disturbed on appeal absent an abuse of
discretion.” (See People v. Buell (2017) 16 Cal.App.5th 682, 689.)
Here, appellant had a motive to cast Fernando as a violent killer,
and there was no evidence corroborating Fernando’s alleged
statement.
Even if this statement were admissible as sufficiently
trustworthy, it was also subject to Evidence Code section 352.
(See People v. Geier (2007) 41 Cal.4th 555, 584 overruled on
another point by Melendez-Diaz v. Massachusetts (2009) 557 U.S.
305.) Fernando’s character and reputation for violence was
already well-established: the jury heard he was a gang member
who always carried a handgun, his cousin said he had seen
Fernando in many fights and Fernando believed that “bang” was
necessary when his family was threatened, and appellant
testified that Fernando’s moniker was “Blam” for the sound of a
shot being fired. The jury also heard that appellant and
Fernando had a history of confrontations, and Fernando had been
convicted of negligent discharge of a firearm. Weighing this
record with what the trial court considered unreliable—
appellant’s claim that Fernando had prior to his death claimed to
14
have shot at his wife’s ex-boyfriend—the court reasonably
excluded this testimony under Evidence Code section 352.
We find no state evidentiary error, nor any violation of
appellant’s constitutional rights. The court’s application of the
ordinary rules of evidence here did not impermissibly infringe on
appellant’s right to present a defense. (See People v. Snow (2003)
30 Cal.4th 43, 90.)
2. Jury Instructions
Appellant raises two claims of instructional error. First, he
argues the trial court erred in declining to give a special robbery
instruction stating that the intent to steal must be formed before
or during the application of force. Second, he contends the court
erred in failing to instruct on the lesser offense of petty theft.
A. Intent to Steal
The trial court instructed the jury that for the crime of
robbery, the requisite specific intent to permanently deprive an
owner of his property must be formed “before or at the time that
the act of taking the property occurred.” Defense counsel
requested an additional instruction that robbery requires the
intent to steal arise “before or during the application of force.”
Defense counsel argued that if the jury believed that appellant
“did not point the gun at them in the car but . . . the shooting
itself [w]as the basis of the force or fear,” then appellant did not
have the requisite intent to steal because when appellant was
shooting at Fernando, appellant did not yet intend to take the
keys. The court declined to give the instruction, reasoning “I
don’t think we can subdivide this conduct.” We understand the
court’s comment to mean that it would not tell the jury, on the
element of fear, to consider separately appellant shooting
15
Fernando and appellant approaching the car while displaying a
gun.
The “ ‘general rule [is] that a trial court may properly
refuse an instruction offered by the defendant if it incorrectly
states the law, is argumentative, duplicative, or potentially
confusing [citation], or if it is not supported by substantial
evidence.’ [Citation.] We review de novo whether instructions
correctly state the law. [Citations.]” (People v. Scully (2021)
11 Cal.5th 542, 592.)
Appellant argues the failure to give the pinpoint
instruction violated his right to due process. He claims the
prosecution relied on alternative theories for the robbery: that,
when appellant stole the car keys, the car occupants were in fear
either because of witnessing the shooting or because appellant
still had a gun in his hand. Appellant claims the evidence under
the first theory was insufficient because robbery requires that the
intent to take property arise before or during the commission of
the act of applying fear against the victim. (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 166.) There was nothing to suggest
that appellant formed the intent to steal when he and Fernando
were shooting at each other.
We reject the argument because the record does not
support appellant’s premise. The prosecution did not rely on two
separate theories for the robbery. The district attorney
accurately stated in closing that Fernando’s uncle and cousin
were in fear because appellant “had a gun in his hand when he
took that property. . . . [T]he two people . . . just saw him shoot
their relative. He still has a gun in his hand, and now he’s at the
car. And he’s leaning into the car and he’s pointing the gun at
them.” We do not read this as alternative prosecution theories of
16
how fear effected the robbery. Rather, we agree with the trial
court that appellant’s conduct cannot be subdivided. Although
appellant denied pointing his gun at the uncle and cousin, he
acknowledged he was holding the gun when he approached the
car and took the keys. That he had just shot Fernando in full
view of the two car occupants heightened the power of the gun
directed toward Fernando’s relatives to evoke fear in them.
Because the proposed pinpoint instruction did not fit the facts of
the case, the trial court did not err in refusing to give it.
B. Lesser Included Offense of Theft
Appellant also argues the court erred in denying defense
counsel’s request for an instruction on the lesser included offense
of petty theft. (See People v. Villa (2007) 157 Cal.App.4th 1429,
1434 [“Theft is a lesser included offense of robbery.”].) If “the
jury relied on the shooting to establish the force or fear element
of the robbery,” he argues, and there was no substantial evidence
he had larcenous intent at the time of the shooting, then he
would only be guilty of theft.
“Due process requires that the jury be instructed on a
lesser included offense only when the evidence warrants such an
instruction. [Citations.]” (People v. Gutierrez (2002) 28 Cal.4th
1083, 1145.) Here, as discussed, the prosecution’s theory was
that appellant employed fear by taking the car keys while holding
a gun. Evidence that appellant only committed petty theft was
legally insufficient, and the trial court was not required to
instruct on the lesser included offense. (See People v. Rodriguez
(1997) 53 Cal.App.4th 1250, 1269.)
3. Prosecutorial Misconduct
Appellant argues the prosecutor engaged in misconduct
during closing argument first by attributing statements to
17
appellant that were not in evidence, and, second, by
mischaracterizing appellant’s testimony. We conclude appellant
forfeited these claims by failing to object.
During closing, the prosecutor attributed the following
statements to appellant: “He showed up at my pad and wanted
to get down. That’s right. He wanted to have a fight. Instead, I
gave him lead.” We agree that there was no evidence of the
quoted remarks.
Appellant acknowledges his trial counsel did not object to
these statements. He has therefore forfeited this claim by failing
to make a timely objection. (See People v. Arias (1996) 13 Cal.4th
92, 159.) Although he argues any objection would have been
futile, on the contrary, an objection would likely have been
sustained, thus informing the jury that the statements were not
in evidence.
Appellant points to a second instance of claimed
misconduct. During closing, the prosecutor argued, “When
confronted with the statement that [appellant] made about he
had to let up three or four times to make it a fair fight, he says,
‘Oh, that had to do with prior incidents.’ No. He let up because
he had just shot him three times. The guy didn’t even have his
gun out.” Defense counsel then addressed this argument,
reminding the jury that when appellant was asked about the
statement, “the answer to that question was, ‘No, I did not say
that. [¶] . . . [¶] He said . . . the statement I think you’re referring
to is there was a prior time when he, Fernando, pulled up on me,
and it had nothing to do with the incident we’re talking about.”
Again, appellant failed to object to the claimed
mischaracterization of his testimony, and, again, he has forfeited
this argument. (Arias, supra, 13 Cal.4th at p. 159.) Appellant
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claims an exception to the rule of forfeiture on the grounds the
prosecutorial misconduct constituted “a pattern so egregious as to
violate [his] due process rights and den[y] him a fair trial.” (See
People v. Friend (2009) 47 Cal.4th 1, 29 [the forfeiture rule may
be set aside 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’ ”].) The present case
does not rise to this level. The two cited instances during a
lengthy closing argument did not constitute a pattern of
misconduct nor were the cited comments such a departure from
the facts as to be considered egregious.
Appellant’s fall-back position on the claimed misconduct is
that his trial counsel rendered ineffective assistance by failing to
object. The argument does not persuade us. Appellant argues
“there was no reasonable tactical explanation for counsel’s failure
to object” because the jury had already heard the statements
attributed to appellant. However, defense counsel could have
made a reasonable tactical decision that rather than objecting,
counsel would highlight the prosecutor’s comments as a
mischaracterization which, in fact, defense counsel did. Counsel’s
decision to directly address the purported mischaracterization of
appellant’s testimony may have been a reasonable attempt to
gain credibility with the jury. Defense counsel may have also
reasonably interpreted the prosecutor’s purported misstatement
as an attempt to characterize appellant’s attitude, rather than a
direct quote of appellant’s testimony. Appellant has not shown
ineffective assistance. (See People v. Weaver (2001) 26 Cal.4th
876, 925–926.)
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4. Evidence Appellant Acted in Self-Defense
Appellant argues the prosecution put forth insufficient
evidence for the jury to reject his claim of self-defense. He points
to evidence that appellant was “aware of Fernando’s character for
violence,” including that Fernando had discharged a gun at
someone, appellant knew Fernando’s moniker was “Blam” which
mimicked the sound of a fired gun, appellant had a reasonable
belief that Fernando came to his house to kill him, and Fernando
fired multiple shots at appellant.
“ ‘ “To justify an act of self-defense . . . the defendant must
have an honest and reasonable belief that bodily injury is about
to be inflicted on him.” ’ [Citation.] . . . Additionally, ‘[t]he
threat of bodily injury must be imminent’ and the force used in
response ‘ “reasonable under the circumstances.” ’ [Citation.]”
(People v. Brady (2018) 22 Cal.App.5th 1008, 1014.) The
prosecution has the burden of proving beyond a reasonable doubt
that appellant did not act in lawful self-defense. (See People v.
Lee (2005) 131 Cal.App.4th 1413, 1429.) “ ‘In assessing the
sufficiency of the evidence, we review the record in the light most
favorable to the judgment to determine whether it discloses
evidence that is reasonable, credible, and of solid value such that
a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.]’ ” (People v. Cardenas (2015) 239
Cal.App.4th 220, 226.)
The issue for the jury was whether a reasonable person in
appellant’s situation would be justified in believing he was in
imminent danger of bodily harm. Under this standard, the
prosecution supplied sufficient evidence for the jury to reject
appellant’s claim of self-defense based on a lack of
reasonableness. Appellant’s summary of the record is one-sided.
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As to his own violent conduct, he focuses only on evidence in his
favor and ignores the evidence showing he choked Graciela and
flashed a gun at her, had multiple felony firearm convictions,
texted Fernando that either he or appellant was “gonna be dead,”
and came out of his house armed and shot Fernando when the
victim was not yet holding a gun. And he ignores the testimony
of Fernando’s relatives that appellant shot first. The evidence
appellant omits was sufficient for the jury to conclude, beyond a
reasonable doubt, that appellant did not act in self-defense when
he killed Fernando.
5. Section 654
Appellant was convicted of two counts of assault with a
firearm: the first based on appellant’s firing a bullet during the
shoot-out which struck the car containing Fernando’s cousin and
uncle; and the second based on appellant waving a gun at the
passengers when he took the car keys.6 Appellant now contends
the trial court should have stayed the sentence it imposed for the
second assault with a firearm conviction because the assault at
the car was one of the elements of the robbery. Appellant argues
that he cannot be punished for both the second assault and the
robbery because section 654 prohibits dual punishment for
6 The information alleged two counts of assault with a
firearm, one against Fernando’s uncle (count 1) and the second
against Fernando’s cousin (count 2). The verdict forms followed
suit: count 1 named the uncle as the victim, and count 2, the
cousin. In closing, the prosecutor argued that appellant was
guilty of both counts based on two separate acts: first, shooting
at the car in which cousin and uncle were sitting as evidenced by
one of the bullets that struck the car; and second, pointing the
gun at the uncle and cousin when appellant took the car keys.
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offenses arising from the same act. Respondent concedes this,
and we agree.
“It has long been recognized that where a defendant is
convicted of robbery and other crimes incidental to the robbery
such as assault, section 654 precludes punishment for both
crimes.” (People v. Mitchell (2016) 4 Cal.App.5th 349, 354.) We
therefore order the sentence on the second count for assault
stayed.
DISPOSITION
The sentence for count 2, assault with a semiautomatic
firearm, is stayed pursuant to Penal Code section 654. The
judgment is affirmed as modified.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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