People v. Flores CA2/2

Filed 11/1/21 P. v. Flores CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B303242

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA141203)
v.

FERNANDO FLORES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Roger T. Ito, Judge. Affirmed.
Patricia Ihara, 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, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant Fernando Flores (defendant)
appeals from his convictions of murder, attempted murder, and
other felonies. He contends that the trial court improperly
excluded evidence of victim intoxication and mental illness, that
the court erred in failing to modify jury instruction CALCRIM
No. 315, and that prosecutorial misconduct in closing argument
denied him a fair trial. Finally, defendant contends that
cumulative prejudice from all asserted errors requires reversal.
Finding no merit to defendant’s contentions, we affirm the
judgment.

BACKGROUND
By information defendant was charged in count 1 with the
first degree murder of Alejandro Aguilar, in violation of Penal
Code section 187, subdivision (a);1 in count 2 with the attempted
premeditated murder of Jessica Smith,2 in violation of sections
664 and 187, subdivision (a); in count 3 with assault with a
semiautomatic firearm, in violation of section 245, subdivision
(b); and in count 4, felon in possession of a firearm, in violation of
section 29800, subdivision (a)(1). As to counts 1, 2, and 3, the
information alleged that defendant personally used and
intentionally discharged a firearm, which caused great bodily

1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 Because Jessica Smith shares a surname with witness Ida
Smith, we refer to her as Jessica. After first mention, we refer to
other persons by their surnames or occasionally their full names.
At trial and in the appellate briefs, both parties have used
nicknames for Aguilar and Raul Espinoza throughout. “Titi” is
Aguilar; and “Bam” or “Bam Bam” is Espinoza.

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injury and death within the meaning of sections 12022.7,
subdivision (a) and 12022.53, subdivisions (b), (c) and (d). The
information also alleged that defendant had been convicted of a
prior serious or violent felony making him subject to sentencing
under section 667, subdivisions and (b) through (j), and section
1170.12, as well as under section 667, subdivision (a)(1). Finally,
pursuant to section 667.5, subdivision (b), it was alleged as to all
counts a prior conviction for which defendant had not remained
free of prison custody for a period of five years prior to the
current charges.
A jury found defendant guilty of all counts as charged in
the information and found true all the special allegations. 3 Upon
defendant’s admission the trial court found true the prior strike
conviction.
On November 26, 2019, the trial court sentenced defendant
on count 1 to a second strike term of 50 years to life in prison,
plus 25 years for the firearm enhancement (§ 12022.53, subd. (d)),
and a five-year recidivist enhancement. On count 2, the court
imposed a term of life in prison, plus 25 years to life for the
firearm enhancement, and a five-year recidivist enhancement.
On count 3, the court imposed a three-year term, stayed pursuant
to section 654. As to count 4, the court imposed 16 months to be

3 This was defendant’s second trial on these charges. During
deliberations in the first trial the jury viewed a full video,
although only a portion had been admitted into evidence, and
sent out a note asking if it could consider both the unadmitted
portion as well as the admitted portion. As a result, the trial
court granted defendant’s mistrial motion. Defendant’s second
trial began four months later.

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served concurrently. The court ordered defendant to pay various
fines and fees and awarded custody credits.
Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
In January 2016, Melanie Moreno lived in a complex of
about 15 apartments on Pioneer Boulevard in Norwalk where she
claims “[e]veryone knows everyone.” Around noon on
January 21, 2016, as Moreno was walking to her car in the
parking lot behind the complex, she heard an argument between
Aguilar (whom she knew as Titi) and Raul Espinoza (whom she
knew as Bam). Espinoza, the complex manager’s nephew, lived
and worked in the complex. He also was defendant’s good friend.
From a distance of about 15 to 20 feet away, she saw Espinoza hit
Aguilar, who fell to the ground. Espinoza then beat Aguilar, who
did not fight back. Also present were Aguilar’s girlfriend Jessica,
defendant and his girlfriend Arlene Peraza, and Peraza’s two
children, who were playing in the parking lot.4 Moreno saw
defendant pacing back and forth watching the beating.
Defendant was agitated and appeared to be trying to join the
fight. When defendant pulled a black gun from under his pants,
which he kept moving to his side and pointing near the area
where Espinoza and Aguilar were, Jessica screamed, “[O]ne on
one.” No one else joined the fracas.
The disturbance ended when the manager came out saying
she was calling the police. Moreno did not see where Espinoza

4 Moreno identified a photograph of Peraza’s car, which she
described as a gray Honda. Moreno initially testified that the
Honda was burgundy, but corrected herself, explaining that she
had misremembered the color at first.

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went from there. She did see Jessica and Aguilar leave through
the gates toward Pioneer Boulevard and the front of the building.
Moreno also walked toward the front, and defendant walked
behind her.
Jessica testified that she and Aguilar had started dating in
October 2015. She had known defendant in her former
neighborhood on the other side of Norwalk where she lived until
she was 14 years old. She had not seen him again after that until
2015, when she saw him in the Pioneer Boulevard complex where
defendant lived in the apartment next door to Jessica’s mother.
Defendant was still living there on January 21, 2016. Jessica
visited her mother several times per week where she saw
defendant periodically. Once toward the end of September 2015,
they discussed dating but she was not interested and declined,
giving him various reasons.
Jessica testified that she had never seen Aguilar and
Espinoza fight before January 21, 2016, but had seen them
talking in the complex. She recalled seeing defendant, Peraza
and her two boys there that day. Before the fight began she saw
“Youngster,” a 15- or 16-year-old boy, pull out and hand a silver
gun to Espinoza, who fixed it, handed it back and told Youngster
to hold it. She did not see anyone else with a gun. Jessica was
about six feet away from the fight, and it appeared to her that
Espinoza was winning. When she saw defendant he was about
15 to 17 feet away. When the fight ended Aguilar picked up the
things he had dropped during the fight, and he and Jessica left
the apartment complex, walking quickly toward Allard Street.
Later that day sheriff’s deputies went to the house directly
across the street from the Pioneer Boulevard apartment complex
where they obtained surveillance footage of a view of the front of

5
the apartment complex, recorded between 12:04 and 12:11 p.m.
on January 21, 2016. As the video was played for the jury Jessica
identified defendant, Peraza and her two children, Youngster,
and Peraza’s silver car in the video. As Peraza and defendant
emerge from the building Peraza points in one direction while
saying something to defendant, who then runs in the opposite
direction followed quickly by Youngster, a toddler on a tricycle
and another toddler on foot. Peraza caught up to him before they
were all out of view. Just before 12:11 p.m., a silver car is
recorded traveling back toward the apartment complex in the
direction that Peraza had been pointing. A few minutes after
defendant, Youngster, Peraza and the boys disappeared from
view, a man in a dark hoodie and long basketball shorts walks
slowly on the sidewalk of Pioneer Boulevard across the street
from the apartment complex.
Rodrigo Malagon testified that he was driving to school on
January 21, 2016, and reached the intersection of Allard Street
and Arlee Avenue between 12:10 and 12:15 p.m. Malagon saw a
couple holding hands near the intersection. The woman was
later identified as Jessica and the man as Aguilar. Malagon then
saw a silver Honda approach from Pioneer Boulevard. The
windows were up and Malagon could not see into the car, which
stopped near the curb by a fire hydrant. With the motor running,
the driver got out holding a silver pistol and quickly approached
the couple, who appeared to know him and looked frightened.
When the man with the pistol was about an arm’s length away
from the couple, he shot Aguilar, who fell on his back. Within
about three seconds he turned and shot Jessica. She also fell to
the ground. Malagon did not hear any of the three people speak.
The shooter then jogged toward an alley at the end of the block,

6
came back toward the couple and shot Jessica again while she
was on the ground. The shooter then walked back toward the
silver car. Malagon, who was nervous, drove away and did not
see the shooter get back into the silver car. He then called 911.
Malagon gave Detective Mark Christiansen a description of
the shooter as five feet seven inches or five feet eight inches tall,
weighing about 160 pounds, with short hair, but not bald, and
wearing baggy pants. Malagon testified that the shooter was
wearing a silver or gray long-sleeved shirt, possibly striped.
When the prosecutor showed him a still photograph of the man in
the video wearing a hoodie (exhibit 11), Malagon testified that
the shooter had not been wearing a hoodie or a hat, and was not
the person in the photograph. He did not see the man depicted in
the photograph near the scene of the shooting. Malagon was
about 30 feet away from the shooting, did not see the shooter’s
face, and could not identify anyone in court. In court Malagon
estimated that defendant was about the same height and weight
as the shooter.
Jessica testified that after the fight ended she and Aguilar
walked away from the apartment complex toward Allard Street.
As they walked Peraza’s car approached and passed them, then
stopped on the corner of Allard Street and Arlee Avenue.
Defendant got out of the car, holding his waist. Jessica and
Aguilar stopped, and Jessica told defendant, “[S]top. Just leave.
[G]o away.” Defendant then pulled out a silver gun and pointed
it in their direction. It was the same gun that Espinoza and
Youngster had handled before the fight earlier at the apartment
complex. Jessica shouted louder, “Just no, don’t,” as defendant
raised the gun and shot Aguilar in the face. Aguilar fell back and
seconds later defendant turned the gun on her and shot her in

7
the neck from about 10 to 12 feet away. Jessica fell straight back
and played dead, hoping he would go away. About 10 seconds
later he shot her again. Defendant did not say anything when he
shot her. Jessica then heard him run to the car, and she saw him
get in on the driver’s side.5
After Jessica heard the car door shut and the car move
away, she ran to help Aguilar. She screamed for help and ran to
the corner house where she banged on front door and screamed as
loud as she could. Jessica tried to call 911 and her mother but
could not remember whether she got through. When she ran
back out the gate a woman approached to help her. A motorist,
who stopped to help, saw that Jessica had trouble talking on her
phone, so he told the person on the line that her daughter had
been shot, and was at the corner of Allard Street and Arlee
Avenue. Jessica’s mother, Ida Smith, told the man that she
would be there.
Smith testified that she was working near the intersection
of Allard Street and Pioneer Boulevard on the day of the shooting
when she answered a call sometime after 12:15 p.m. from
Jessica’s phone. Smith heard Jessica crying and calling out for
help. When someone else got on the phone and said Jessica had
been hit at Allard Street and Arlee Avenue, Smith rushed there
but was prevented by a police officer from going directly to her
daughter. Smith could see Jessica lying on the ground and called
out to her, to which Jessica gave a thumb’s up.
Smith followed the paramedics to the trauma center where
Jessica was taken. Jessica remained in the hospital five days.

5 Jessica testified that she could hear Peraza in the car
“laughing and cackling.”

8
Aguilar died of a gunshot wound to the head. Jessica was scared,
sad, and upset when she was told by staff that Aguilar had died.
Jessica told her mother what had happened and told her that it
was Fernando who had shot her and Aguilar. Smith knew
Jessica was referring to defendant, whom she knew. She also
knew that defendant and Jessica were friends, although not
close.
Detective Dameron Peyton spoke with Jessica around
3:00 p.m. on January 23, the day that Jessica was moved to a
private room. Jessica was still upset, in pain, medicated,
nervous, and afraid. Both Smith and Jessica disliked Detective
Peyton, and Jessica refused to be interviewed by him. Smith
spoke to the detective briefly in the hall when he left, and neither
the detective nor Smith recalled whether Smith told him that
Jessica had identified defendant. Detective Peyton did not
include that in his report, although he claimed he probably would
have done so had Smith told him. Detective Peyton did not say
when defendant became the suspect but testified that he had no
information suggesting there was any other suspect.
Both Smith and Jessica remembered speaking to Detective
Christiansen at the crime scene. Since Jessica wanted to speak
to him, Smith contacted him on January 26. Detective
Christiansen went to the hospital where he found Jessica sitting
in bed in a lot of pain but coherent. Detective Christiansen
testified that defendant was the only suspect. He brought three
separate photo lineups to the hospital, each with six photographs,
including one with defendant’s photograph. When he showed
Jessica the array with defendant’s photograph in it, she
immediately identified defendant as the shooter. Jessica also
identified the photograph of Espinoza and Peraza in the two

9
other photographic lineups. Jessica told Detective Christiansen
that defendant had been wearing long black basketball shorts
and a black hoodie with the hood down.
During her direct examination when Jessica was shown
exhibit 11, she testified that she did not see the man depicted in
the photograph at Allard Street and Arlee Avenue when she was
shot. She was then asked, “Did you see that man when you were
shot?” She replied, “I said yes.” When asked where she saw him,
Jessica replied, “When he was driving, when he got out in the
sidewalk and pointed the gun at us, is that when I saw him?”
The prosecutor replied, “I’m asking you.” Jessica was then asked
what defendant had been wearing. Jessica testified that
defendant had been wearing a black hoodie with the hood down
and very long basketball shorts when he shot them. Later in
direct examination, when Jessica was again shown exhibit 11,
she testified that she did not know who the man in the
photograph was. In her cross-examination Jessica testified that
during the fight in the parking area defendant was wearing a
black hoodie with the hood down off his head. Again she was
shown exhibit 11 and testified that she did not know that person.
Asked why she said yes after being asked that before, Jessica
explained that she had been misunderstood.
Jessica admitted having smoked a “bowl” of marijuana the
morning she was shot, explaining that a bowl was about the size
of her thumbnail. She also had smoked “a few hits” of
methamphetamine a couple days before the shooting. However
she testified that when defendant shot her, she saw his face and
had no doubt that it was defendant who killed Aguilar and shot
her twice. She added that when defendant shot her he was about
10 feet away, close enough for her to see the tattoos of devil horns

10
on his head. Defendant had very little hair at the time of the
shooting, so she could see the tattoos through his hair.
Jessica also testified to an incident that occurred the night
before the shooting. She and Aguilar were sitting near a liquor
store not far from the Pioneer Boulevard apartment complex,
when defendant, Peraza and Youngster arrived in Peraza’s car.
Defendant was repeatedly doing “donuts” with the car while
Peraza was in the passenger seat “cackling and laughing.” Right
after one of the donuts, Peraza looked at Jessica and said,
“[B]itch.” Jessica and Aguilar then walked back to the
apartments. When they arrived, defendant and Peraza pulled
up, defendant got out of the car and began arguing with Aguilar.
Peraza then got out of the car, rushed to Jessica, who pranced
around and away from her because she did not want to fight.
Jessica and Peraza did physically fight, but not for long. The
argument between Aguilar and defendant never became physical.
Jessica and Aguilar then went upstairs to Aguilar’s best friend’s
apartment. Jessica had no idea why Peraza attacked her and
called her a bitch.
Jessica suffered lingering medical problems as a result of
the shooting. She suffered nerve damage from the neck down her
left arm and aggravation of some preexisting symptoms and
anxieties. Jessica was nervous while testifying, and she
explained that when she felt nervous she would get tense or
fidgety, clench her hands a lot, and her jaw had a tendency to
move.
Defendant’s father, Fernando Flores, Sr., testified that
shortly past 12:00 noon on January 21, 2016, the manager of the
apartments came to his door and told him that his son had been
shot at Allard Street and Arlee Avenue. He ran there, but an

11
officer stopped him from going to the scene. He returned home
and saw defendant later that day at McDonald’s.
Defendant’s testimony
Direct examination
Defendant denied shooting Jessica and Aguilar. He denied
that he ever asked Jessica for a date and claimed that they were
just neighbors when he was 16 years old. Defendant had been in
a relationship with Peraza since 2014, and they have a daughter
together. Peraza’s two boys were from a previous relationship.
Defendant knew Espinoza as Bam Bam, the handyman for the
apartments, whose aunt lived there, but denied they were
friends. Defendant denied knowing Aguilar and ever having
spoken to him or fought with him, although he now knew of him.
Youngster was a neighbor, not someone defendant considered a
friend. Defendant thought Youngster and Espinoza were friends.
Defendant denied doing “donuts” with the car the night
before the shooting as Jessica had testified and claimed that he
had been looking for a parking space. Defendant denied knowing
why Jessica and Peraza got into a fight outside the apartment
building.
Defendant admitted being present during the fight in the
parking lot the day of the shooting, but claimed that he did not
know what was going on, did not “really see” who was fighting,
and it was none of his business. He knew his neighbor Moreno,
who was Peraza’s friend, not his, although he denied that there
was any bad blood between him and Moreno. Defendant denied
having held a gun or any weapon in the parking lot as she had
testified.
After defendant viewed the surveillance video showing him,
Peraza, her children, and Youngster coming out of the apartment

12
building shortly after 12:00 p.m., he claimed not to have known
where Youngster was going. Defendant claimed that the reason
he and Peraza left after the fight was to take the two boys to the
Northgate Market to get something to eat. After defendant heard
about the shooting and a discussion with his father, defendant
decided to move. Sometime after that day he moved to a motel
with Peraza and the children. He was arrested two and a half
weeks later.
Defendant testified that he was five feet 11 inches tall and
weighed 210 pounds, up from 190 pounds at the time of his
arrest.6
Cross-examination
Defendant testified that he had horn tattoos on his head,
although his hair was now longer.
The surveillance video was again played, and defendant
first claimed that he could not tell whether Peraza was pointing
and could not remember what Peraza was telling him. Defendant
then admitted that he could see in the video that her right arm
was extended in the direction of Allard Street. Defendant agreed
that the video showed him running in the opposite direction
toward Imperial Highway where Peraza’s car was parked,
holding an article of clothing. He denied that he was holding a
gun under a hoodie, rather he was holding a pair of blue pants.
Defendant testified that he was going to Peraza’s car, but he did
not know why Youngster was running after him. Defendant

6 Detective Peyton testified that defendant’s booking report
indicates defendant’s height and weight as five feet 11 inches and
190 pounds. He also explained that booking reports reflect the
heights and weights reported by the person arrest and are not
based on measurements taken at the time of booking.

13
agreed that it was Peraza’s car seen in the video on Pioneer
Boulevard, headed toward Allard Street.
Defendant testified that he knew where the intersection of
Allard Street and Arlee Avenue was, as he had lived in the
apartment complex since May 2014, but he had never for any
reason taken a turn on Allard Street toward Arlee Avenue and
did “not really” do so on January 21, 2016. Defendant said that
after he ran to the car he, Peraza, and the boys went to the
Northgate Market in Pico Rivera.
Defendant testified that Peraza and the boys lived then
with defendant and his parents. Moreno and Peraza were
friends, and defendant had known Moreno since he was paroled
in May 2014. Though they talked and hung out in the complex
and defendant got along with her, he did not really talk to her.
Defendant admitted being in the parking lot when Espinoza and
Aguilar fought but claimed that he was not near the fight. When
asked, “So when Melanie Moreno, with whom you seem to have a
good relationship, comes to court and says that you were trying to
jump in on the fight holding a gun, is she lying?” Defendant
replied, “Yes.” Defendant claimed that he was about 30 feet away
from the fight, getting the boys, who had been riding their bikes
in the parking lot, and Peraza was right behind him, also not
close to the fight.
Defendant testified that he knew who Jessica was, having
seen her and greeted her at the apartment complex about three
times per week, when she visited her mother who lived next door
to defendant. When he spoke with Detective Peyton he said he
did not know Jessica “like that”—like being in a relationship, not
that he did not know her. There was nothing between him and
Jessica. Defendant knew she had a boyfriend and had seen

14
Aguilar around the building two or three times, but he did not
know Aguilar or who he was. Defendant said he did not see
Aguilar the day of the shooting, and the last time he had seen
Aguilar in the complex was the night before. Defendant denied
killing him. Defendant said he did not know Espinoza when he
lived there, although he knew of him. He did know that Espinoza
was related to the manager, worked in the complex, and wore a
uniform.
Defendant knew about the shooting but not why he was
being investigated for it. After moving out of the complex,
between January 21 and the day of his arrest on February 10,
2016, defendant stayed at three different motels: one in Norwalk
and two in Whittier, where he paid $400 per week. He moved to
motels in order to save money and denied asking his parents to
let him continue to live with them.
When asked about the donut-driving incident, defendant
denied that Peraza taunted Jessica and that she called Jessica a
bitch. At the time he was not going to the liquor store where he
saw Jessica and Aguilar, but he had just had the car washed and
was looking for a parking space around the apartment complex.
He ended up parking in front of the apartment building and
happened to see Jessica and Aguilar outside the complex. When
he parked Peraza got out of the car and began arguing with
Jessica. Defendant denied knowing what they argued about. He
was busy getting the boys out of their car seats and did not hear
what they were saying. The fight got physical and although
defendant could not remember whether they used their fists, they
did not end up on the ground. Asked why he did not go to her or
try to stop the fight, knowing that Peraza was pregnant at the
time, defendant replied that he wanted to get the children out of

15
the car. When the prosecutor asked whether defendant had then
argued with Aguilar, got in his face, or tried to pick a fight with
him, defendant laughed and denied each question. Defendant
denied antagonizing, fighting or bullying Aguilar. He denied
having done anything that day to Aguilar.

DISCUSSION
I. Exclusion of evidence
Defendant contends that the trial court improperly
excluded evidence of Jessica’s untreated bipolar disorder and the
effects of methamphetamine on her ability to accurately perceive
reality. He argues that the trial court’s ruling violated his
federal constitutional rights to due process, a fair trial, to present
a complete defense, and to confrontation.
Prior to jury selection the prosecution sought to exclude the
testimony of Dr. Brand, a psychiatrist who had been retained to
assess Jessica while she was in the hospital, under Evidence
Code section 352. The prosecutor offered to stipulate that Jessica
had methamphetamine and marijuana in her system when she
was taken to the hospital, but wanted to exclude any testimony
by Dr. Brand regarding possible effects of methamphetamine if
combined with mood stabilizers. Defendant’s counsel wanted to
present testimony about the possible cognitive effect of
methamphetamine on a person suffering from bipolar disorder in
order to provide evidence of Jessica’s demeanor at the time.
The trial court noted that in defendant’s first trial
Dr. Brand testified that he did not consider himself an expert in
the field. He could say that some people are affected cognitively
and others are not, and although it is possible that Jessica was so
affected, he could not give an opinion about any effect on her in

16
this case. Before ruling the court thought that the evidence
would probably be excluded as more prejudicial than probative
under Evidence Code section 352 but indicated it would look at
the transcript of Dr. Brand’s testimony before making a final
decision.
Evidence Code section 352 provides that the trial “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, of confusing
the issues, or of misleading the jury.” (See People v. Valdez
(2012) 55 Cal.4th 82, 138.) The trial court enjoys broad discretion
in making its assessment, and its discretion will not be disturbed
unless the defendant demonstrates that it was exercised “‘in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8
Cal.4th 1060, 1124; see Cal. Const., art. VI, § 13; Evid. Code,
§§ 352, 354.) The trial court’s broad discretion extends to
excluding evidence of the victim’s drug use or intoxication.
(People v. Loker (2008) 44 Cal.4th 691, 735-736.)
When the issue was revisited midtrial, the trial court
observed that defense counsel had identified no evidence
suggesting that since Jessica had bipolar disorder she had an
altered sense of reality or was unable to recall and recollect. The
court suggested that if the defense had evidence that a person
with bipolar disorder, or a person who had ingested certain
drugs, or a person with bipolar disorder who had ingested certain
drugs, would in fact have an altered sense of reality, it would be
admitted as impeachment. Otherwise, the court explained, the
defense would need to present an expert opinion based on
evidence linking Jessica’s bipolar disorder to an inability to recall

17
and leading to misidentification of the defendant. Or the defense
would need other expert evidence showing that not taking her
prescribed medication for bipolar disorder would lead to
hallucinations. If the defense did not do so, the testimony would
be speculative and used only “to dirty her up to some extent
without any kind of basis for it.” As the defense had not
identified any such evidence, the trial court excluded Dr. Brand’s
testimony as more prejudicial than probative.
The court is not required to admit evidence of the victim’s
drug use that merely makes her look bad. (People v. Loker,
supra, 44 Cal.4th at p. 736, quoting People v. Kelly (1992) 1
Cal.4th 495, 523; People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
“[T]he mental illness or emotional instability of a witness
can be relevant on the issue of credibility, and a witness may be
cross-examined on that subject, if such illness affects the
witness’s ability to perceive, recall or describe the events in
question.” (People v. Gurule (2002) 28 Cal.4th 557, 591-592.)
However, the trial court may exclude evidence of mental illness
without a showing that “it may affect her powers of perception,
memory or recollection, or communication.” (People v. Herring
(1993) 20 Cal.App.4th 1066, 1072.) “‘A person’s credibility is not
in question merely because he or she is receiving treatment for a
mental health problem.’” (People v. Anderson (2001) 25 Cal.4th
543, 579.)
Defendant’s offer of proof consisted entirely of Dr. Brand’s
testimony given in defendant’s first trial. Defendant now
contends that “Dr. Brand’s testimony about Jessica’s untreated
bipolar disorder and his testimony about the cognitive effects of
bipolar disorder, methamphetamine, and marijuana, was highly
probative of Jessica’s awareness, understanding and the ability to

18
recognize and comprehend at and around the time of the
shooting.” Defendant’s argument is largely based upon
exaggeration and mischaracterization of Dr. Brand’s testimony.
In fact, Dr. Brand’s testimony was not probative of Jessica’s
awareness, understanding, or the ability to recognize and
comprehend events and people on January 21, 2016, which is
demonstrated by a summary of the relevant parts of his prior
testimony.
Dr. Brand testified that he was the director of the
psychiatry unit at St. Francis Medical Center where he saw
Jessica on January 26, 2016, after the attending physician asked
him to consult because she was a victim of trauma who had a
history of bipolar disorder and drug use. Dr. Brand had no
specific recollection of Jessica and relied on her chart and his
consultation report. The chart indicated that Jessica had been
taking Seroquel and Ativan but had not taken it for some
months.7
When asked whether it was likely that a person with
bipolar disorder who had recently taken methamphetamines and
marijuana might hear something or see something that did not
actually occur, Dr. Brand testified, “It’s a possibility.” Adding, “I
can’t really give a likelihood or percentage, but it’s a possibility.”
However, he explained that he obtained a history, and she denied
having hallucinations. He also documented that Jessica was not
psychotic or out of touch with reality when he saw her.

7 Dr. Brand explained that Ativan is a drug prescribed for
anxiety, while Seroquel is generally prescribed for people with
bipolar disorder, in order to stabilize mood swings and racing
thoughts.

19
Dr. Brand was unable to give an opinion regarding Jessica’s
psychological cognitive status at the time that she was shot.
When asked whether it was possible for methamphetamine
users to sometimes have perceptions of reality that are not
accurate, Dr. Brand again replied that it was possible. He noted
that he was not an expert in the science of methamphetamine,
how long it lasted in the system, or how it affected the body.
However, he thought that methamphetamine generally lasted in
the user’s system for two or three days with the effects reduced
day by day during that time and that some patients were
cognitively affected and some were not—it varied from patient to
patient. It would also depend on how much of the drug was
ingested, the person’s state of mind and nutritional status at the
time. Although Dr. Brand was unable to give an opinion as to
whether Jessica’s perception of reality was altered by the
methamphetamine at the time she was shot, he said that
generally people under the influence of methamphetamine are
still able to recognize faces and voices, depending on how much
they had used and when it was ingested.
Defendant argues that although Dr. Brand was subpoenaed
as a percipient witness, he also was a qualified expert, and his
testimony was necessary to educate the jury on the possible
effects of methamphetamine and marijuana on a person with
untreated bipolar disorder, particularly on the user’s perception
of reality. There was neither a ruling nor stipulation that
Dr. Brand was an expert in the possible effects of
methamphetamine and marijuana on a person with untreated
bipolar disorder. Defendant merely cites Dr. Brand’s testimony
that he had been a psychiatrist for 30 years and was the medical
director of the psychiatry unit at St. Francis Medical Center. In

20
fact Dr. Brand did not qualify as an expert on the possible effects
of methamphetamine and marijuana on a person with untreated
bipolar disorder. He himself testified that he was not an expert
in the science of methamphetamine or how it affected the body.
Defendant also asserts that the defense made an offer of
proof from Dr. Brand’s prior testimony that it was possible that a
person with Jessica’s bipolar disorder, exacerbated by use of
methamphetamine and marijuana, could have been
hallucinating. Defendant’s offer fails to show an ability to
present evidence that Jessica may have been hallucinating.
Dr. Brand’s testimony was that there might possibly be some
people in the population who might possibly experience
hallucinations under such circumstances. Dr. Brand made clear
that he was not giving an opinion regarding Jessica. As such,
defendant failed to demonstrate that the inference concerning
Jessica’s state of mind on the day of the shooting was anything
more than speculative; and “exclusion of evidence that produces
only speculative inferences is not an abuse of discretion.” (People
v. Babbitt (1988) 45 Cal.3d 660, 684.)
We reject defendant’s suggestion that his offer of proof was
comparable to the facts in an Oregon case, State v. Gherasim
(1998) 153 Ore.App. 313, where the trial court excluded expert
testimony that the sexual assault victim was affected by
dissociative amnesia, a condition that impairs the ability to recall
and recount events accurately. Instead Dr. Brand testified that
he was unable to give an opinion regarding Jessica’s
psychological cognitive status at the time she was shot and that
he was not an expert on the effects of methamphetamine or its
effect on the body. Moreover, he testified that when he visited
Jessica she was not psychotic or out of touch with reality. Thus

21
there was no proof that Jessica’s ability to recall and recount
events accurately was impaired.
Defendant argues that circumstantial evidence supported a
finding that Jessica may have been experiencing auditory and
visual hallucinations because defendant disputed the details of
her testimony about a fight with Peraza the day before the
shooting and Jessica’s testimony that he was driving in donut
formations while Peraza laughed. He claims this as evidence of
hallucinating because he denied doing donuts and was merely
searching for a parking space. Defendant also suggests that the
conflict between Jessica’s description of the shooter’s clothing and
Malagon’s description provided evidence of hallucinating.
Defendant fails to explain how Dr. Brand might have drawn a
correlation between hallucination and conflicts in witnesses’
recall or perception of events. We find defendant’s argument
speculative and unpersuasive.
“[E]xclusion of evidence that produces only speculative
inferences is not an abuse of discretion.” (People v. Babbitt,
supra, 45 Cal.3d at pp. 684; see id. at pp. 681-682.) Defendant
has failed to demonstrate that Dr. Brand’s testimony would
accomplish anything other than to mislead the jury into
speculating that Jessica’s perception and memory was impaired
on January 21, 2016. As such we conclude that defendant has
failed to demonstrate that the trial court’s exercise of discretion
was erroneous, much less arbitrary, capricious or patently
absurd.
Moreover, to demonstrate an abuse of discretion under
Evidence Code section 352, defendant must demonstrate not only
that the ruling was erroneous but also that the error resulted in a
miscarriage of justice. (People v. Rodrigues, supra, 8 Cal.4th at

22
p. 1124; see Cal. Const., art. VI, § 13; Evid. Code, §§ 352, 354.)
Defendant was required to meet this burden under the standard
set forth in People v. Watson (1956) 46 Cal.2d 818, 836, which
asks whether there was a reasonable probability of a different
result absent the alleged error. A “‘probability’ . . . does not mean
more likely than not, but merely a reasonable chance, more than
an abstract possibility.” (College Hospital Inc. v. Superior Court
(1994) 8 Cal.4th 704, 715.) Since defendant made no offer to
prove Jessica’s ability to recall and recount events accurately was
impaired, allowing Dr. Brand’s testimony could allow the jury to
speculate that Jessica’s perception and memory was impaired on
January 21, 2016, without any basis. Thus any argument under
the Watson standard fails for the very same reasons that
defendant has failed to demonstrate error.
Defendant argues that the proffered testimony amounted to
critical defense evidence, and its exclusion deprived him of a
meaningful opportunity to present a complete defense and
violated his constitutional rights to due process, a fair trial, and
confrontation. He concludes that the applicable harmless error
standard here is the test for prejudice due to federal
constitutional error articulated in Chapman v. California (1967)
386 U.S. 18, which asks whether the error was harmless beyond
a reasonable doubt. He describes the “critical defense evidence”
as testimony by Dr. Brand that Jessica’s untreated bipolar
disorder in combination with methamphetamine and marijuana
could cause a misperception of reality.
In fact defendant proffered no such critical defense
evidence as we have concluded above. The trial court properly
found that defendant’s offer of proof included no evidence that
Jessica’s bipolar disorder meant that she had an altered sense of

23
reality or that she was not able to recall and recollect. Indeed,
the trial court indicated to defense counsel that if he had
proffered evidence to suggest that the use of certain drugs by a
person with bipolar disorder would in fact cause an altered sense
of reality, it would have been admitted as impeachment.
Defendant proffered only speculation.
“‘As a general matter, the “[a]pplication of the ordinary
rules of evidence . . . does not impermissibly infringe on a
defendant’s right to present a defense.”’” (People v. McNeal
(2009) 46 Cal.4th 1183, 1203.) Under such a circumstance,
defendant bears a heavy burden to demonstrate a violation of his
right to due process under the Constitution. (Montana v.
Egelhoff (1996) 518 U.S. 37, 42-43.) Defendant has not met this
burden. Regardless, if we had found error we would find it
harmless under any standard. We disagree with defendant’s
suggestion that the evidence was not overwhelming, as well as
with his contention that this was a close case. Defendant
primarily relies upon attacking Jessica’s credibility, claiming her
identification of him was unreliable. In particular, he places
great emphasis on Jessica’s confusion over exhibit 11, the
photograph of the man on Pioneer Boulevard wearing a black
hoodie and basketball shorts. Defendant also places emphasis on
witnesses’ differing recollections about the clothing worn by the
shooter and defendant, as well as the difference between
witnesses’ estimates of defendant’s height and weight and the
height and weight claimed by defendant.
Contrary to defendant’s arguments, when all pertinent
evidence is considered along with inferences reasonably drawn
from such evidence, the case against defendant was

24
overwhelming, without significant reliance on some conflicts in
the witnesses’ recall of certain details or in Jessica’s testimony.
Compelling evidence suggested that defendant was angry
with Aguilar the night before the shooting, when defendant
argued with Aguilar and Peraza argued with Jessica. Moreno
testified that she saw the fight between Aguilar and Espinoza,
which occurred about noon the next day. She saw defendant
pacing back and forth in an agitated manner, watching the fight
and looking as though he wanted to join in; and she saw him pull
out a gun, which he pointed toward the ground in the area where
Espinoza and Aguilar were fighting. She testified that everyone
knew everyone else in the complex, and she knew that defendant
and Espinoza were good friends.
Once the fight ended Jessica and Aguilar walked together
toward Allard Street. Soon thereafter a surveillance camera
recorded Peraza and defendant emerge from the building; Peraza
pointing toward Allard Street while saying something to
defendant; defendant then running in the opposite direction to
where defendant admitted Peraza’s car was parked, followed
quickly by Youngster, Peraza, and her two boys. The video then
shows defendant holding something that appears to be wrapped
in an article of dark clothing about the size of a hoodie. Just
before 12:11 p.m., a silver car is seen on the video traveling
toward Allard Street. Defendant admitted that he was the driver
of the silver car in the video. The most reasonable inference to
draw from the action is that defendant was going after Jessica
and Aguilar, and possibly doing so while holding a weapon under
the hoodie Jessica testified defendant had been wearing during
the fight.

25
 Just a few minutes later Malagon was stopped at the
intersection of Allard Street and Arlee Avenue where he saw a
couple holding hands and a silver car approaching from Pioneer
Boulevard. He then saw that the car stopped, and with the motor
running the driver got out holding a silver pistol. He approached
the couple, who appeared to know him and looked frightened, at a
fast pace. Malagon saw the man shoot Aguilar, then Jessica, and
then shoot Jessica again. The shooter then returned to the silver
car.
Jessica gave compelling testimony that she recognized
defendant as the shooter, which was bolstered by Malagon’s
testimony that the shooter shot her once, started to jog away, and
then returned to shoot her again. Defendant’s actions give rise to
an inference that after thinking about it he knew that Jessica
would recognize him, and he did not want to leave her alive to
identify him. Jessica also recognized the car as Peraza’s and
identified photographs of the car.
In sum the trial court did not err in excluding speculative,
misleading evidence, and in the event it was error, we conclude
beyond a reasonable doubt that the absence of such evidence was
harmless.
II. The certainty factor
Defendant contends that the trial court erred when it
instructed the jurors with CALCRIM No. 315, which as read,
suggests 14 factors to consider in determining how much weight
to give eyewitness identification testimony. He argues that the

26
trial court should have excised the following factor: “How certain
was the witness when he or she made an identification?”8

8 As read to the jury by the trial court, CALCRIM No. 315
instructs as follows:
“You’ve heard eyewitness testimony identifying the
defendant. As with any other witness, you must
decide whether an eyewitness gave truthful and
accurate testimony. [¶] If evaluation [sic]
identification testimony, consider the following
questions: [¶] Did the witness know or have contact
with the defendant before the event? [¶] How well
could the witness see the perpetrator? [¶] What
were the circumstances affecting the witness’ ability
to observe, such as lighting, weather conditions,
obstructions, distance and duration of observation?
[¶] How closely was the witness paying attention?
[¶] Was the witness under stress when he or she
made the observation? [¶] Did the witness give a
description and how does that description compare to
the defendant? [¶] How much time passed between
the event and the time when the witness identified
the defendant? [¶] Was the witness asked to pick
the perpetrator out of a group? [¶] Did the witness
every [sic] fail to identify defendant? [¶] Did the
witness ever change his or her mind about the
identification? [¶] How certain was the witness
when he or she made an identification? [¶] Are the
witness and defendant of different races? [¶] Was
the witness able to identify the defendant in a
photographic or physical lineup? [¶] Were there any
other circumstances affecting the witness’ ability to
make an accurate identification? [¶] The People
have the burden of proving beyond a reasonable
doubt that it was the defendant who committed the

27
 After this matter was fully briefed, the California Supreme
Court published its decision in People v. Lemcke (2021) 11 Cal.5th
644 (Lemcke).9 We invited the parties to submit supplemental
briefs addressing the issues raised by that case.
In Lemcke the high court held that under the circumstances
presented there the defendant failed to establish error or a denial
of due process. (Lemcke, supra, 11 Cal.5th at p. 669.) When
considered as one of 15 factors the jury was instructed it could
consider in evaluating identification testimony the certainty
factor did not render the defendant’s trial fundamentally unfair.
(Id. at p. 646.) Nevertheless, the court noted the “general
agreement [among researchers and the courts of several other
jurisdictions] that witness certainty is not a good indicator of
accuracy under most circumstances,” and acknowledged that “the
current version of the instruction might confuse jurors about the
relationship between confidence and accuracy . . . .” (Id. at
p. 666.) The court therefore exercised its supervisory powers by
directing “trial courts to omit the certainty factor from CALCRIM
No. 315 until the Judicial Council has the opportunity to consider
how the language might be better worded to minimize juror
confusion on this point.” (Id. at p. 669.) The court clarified that

crime. If the People have not met this burden, you
must find the defendant not guilty.”
9 The Supreme Court granted review in that case to consider
whether “instructing a jury with CALCRIM No. 315, which
directs the jury to consider an eyewitness’s level of certainty
when evaluating an identification, violate[s] a defendant’s federal
and state due process rights.” (Lemcke, supra, 11 Cal.5th at
pp. 653-654.)

28
“[t]rial courts, however, retain discretion to include the factor
when the defendant requests that it do so.” (Ibid.)
Defendant argues that this case is distinguishable from
Lemcke, primarily because the defense in Lemcke, unlike here,
presented the testimony of an eyewitness identification expert
and the court read CALCRIM No. 332, which instructed the jury
it must consider the expert’s testimony. (Lemcke, supra, 11
Cal.5th at pp. 652, 657-658.)
Defendant acknowledges that he did not object to the
instruction. Nor did he challenge the certainty factor. We agree
with respondent that defendant has forfeited this issue by failing
to object or to request a modification of the instruction in the trial
court. (See People v. Sánchez (2016) 63 Cal.4th 411, 461
(Sánchez); People v. Sullivan (2007) 151 Cal.App.4th 524, 561.)
Defendant argues that his failure to object to the
instruction should be excused as futile because the trial court
would have been bound by prior California Supreme Court
decisions approving the certainty factor. (See, e.g., Sánchez,
supra, 63 Cal.4th at pp. 461-462; People v. Johnson (1992) 3
Cal.4th 1183, 1231-1232; People v. Wright (1988) 45 Cal.3d 1126,
1144.) Defendant does not identify precisely what the trial court
would have been bound to do prior to the publication of Lemcke.
In fact the record discloses no indication that the trial court
would have refused a legally correct, nonargumentative
alternative instruction or modification, and there is nothing in
Sánchez, Johnson, or Wright that would have precluded the trial
court from granting such a request. Indeed in Wright the court
held that the trial court erred in refusing the defendant’s
proposed alternative instruction on eyewitness identification, but
found the error harmless. (Wright, supra, at p. 1144.) “If

29
defendant had wanted the court to modify the instruction, he
should have requested it. The trial court has no sua sponte duty
to do so.” (Sánchez, supra, a p. 461.) Defendant has thus
forfeited the issue.
Defendant asks that if this issue is deemed forfeited, we
find a denial of effective assistance of counsel as guaranteed by
the Sixth Amendment to the United States Constitution and
article I, section 15 of the California Constitution. (See
Strickland v. Washington (1984) 466 U.S. 668, 686.) Unless and
until defendant has shown prejudice by demonstrating a
reasonable probability of a different result upon reversal, we
need not reach any claim of ineffective assistance due to counsel
error. (Id. at p. 687; see People v. Holt (1997) 15 Cal.4th 619,
703.)
Defendant has not met his burden to show prejudice. First
defendant has not demonstrated that the instruction was
erroneous. As respondent observes defendant concedes that the
Supreme Court did not overrule its prior approval of the use of
the certainty factor. (Lemcke, supra, 11 Cal.5th at p. 656,
quoting Sánchez, supra, 63 Cal.4th at p. 461.) In particular, the
court did not overrule prior decisions holding that the certainty
factor does not instruct the jury that certainty equals accuracy.
(Lemcke, supra, at p. 647.) Instead the Lemcke court
acknowledged that the factor has the potential to mislead jurors.
(Id. at p. 665.)
Next defendant has not demonstrated that the potential to
mislead was a reasonably likely occurrence here. Fourteen
factors in CALCRIM No. 315 were read to the jury. Thus there
were 13 factors besides certainty for the jury to consider, which
defendant does not challenge as misleading, confusing, or flawed,

30
including the final factor, “any other circumstances affecting the
witness’ ability to make an accurate identification.” When the
certainty factor is considered along with the entire instruction,
that single factor is unlikely to result in a denial of due process.
(Lemcke, supra, 11 Cal.5th at p. 646.)
As defendant points out the Lemcke court’s decision that
the defendant failed to establish a violation of due process was
based on the circumstances of that case considered in the context
of that entire record as a whole. (Lemcke, supra, 11 Cal.5th at
pp. 646-647.) Lemcke held that the certainty factor must be
viewed in the context of the entire instruction and charge to
determine whether it resulted in such fundamental unfairness as
to deprive a defendant of his due process rights. (Ibid.) Having
done that here, we come to the conclusion that defendant was not
deprived of his due process rights.
Jurors are presumed to have understood and correctly
applied the trial court’s instructions unless there is evidence of
confusion or the jury requested further guidance on the issue at
hand. (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
CALCRIM No. 315 concluded: “The People have the burden of
proving beyond a reasonable doubt that it was the defendant who
committed the crime. If the People have not met this burden, you
must find the defendant not guilty.” Prior to reading CALCRIM
No. 315, the trial court read CALCRIM No. 226, which included
factors to consider in evaluating the accuracy of witness
testimony, including those emphasized by the prosecutor in
closing argument when she urged the jury to consider how well
Jessica could see, hear, and perceive, as two people can perceive
the same event in different ways. She added that the jurors
should also consider where the witnesses were, whether they

31
were they focused, what they were doing, and what was
happening to them. The prosecutor did not refer to Jessica’s “no
doubt” testimony and did not use the word “certainty,” or any
form or any synonym for it in relation to Jessica’s identification of
defendant as the shooter. The jury was thus not encouraged to
give any more weight to the certainty factor than to any of the
other 13 factors. We find no indication in the record that the jury
was confused or misled.
Defendant points out that in Lemcke, the Supreme Court
recognized that “[t]he large body of research conducted in this
area has identified numerous factors that can affect the
correlation between witness certainty and accuracy including . . .
(2) the temporal proximity between the event and the
identification; . . . and (6) information witnesses receive after the
identification that might increase their level of confidence.”
(Lemcke, supra, 11 Cal.5th at p. 667.) Defendant argues that
evidence of these two Lemcke factors showed there was no
correlation between Jessica’s confidence and accuracy.
We disagree. Defendant cites factor No. 2, “the temporal
proximity between the event and the identification,” and suggests
that Jessica’s identification was flawed because it was not
“immediate,” as she did not make the identification to the police
for five days after the shooting. Defendant does however
acknowledge that Jessica’s mother testified that Jessica told her
after just two days that the shooter was defendant. Also during
some or all of that time, Jessica was in a coma, intubated, and
sedated. In essence, Jessica’s identification was immediate.
Defendant also cites factor No. 6, “information witnesses
receive after the identification that might increase their level of
confidence.” Defendant argues that it is possible that

32
information received by Jessica from her mother after her
identification tainted an initially uncertain identification.
Defendant fails to show that Jessica’s initial identification of a
person she had known for years, made to her mother who also
knew defendant, was uncertain.
Moreover defendant has not shown that the jury was at all
swayed at all by Jessica’s claim of certainty, and we reject the
suggestion in defendant’s arguments that the proof of the
accuracy of Jessica’s identification was based entirely or almost
entirely on her claim of certainty. The first factor in CALCRIM
No. 315 asked, “Did the witness know or have contact with the
defendant before the event?” Jessica explained that she had no
doubt that the shooter was defendant among other reasons,
because she had known defendant for years, had seen him many
times including earlier that very day, recognized his car when he
stopped and emerged with a gun, and she recognized his horn
tattoos. It was thus unlikely that the jury relied solely upon
Jessica’s claim of certainty without considering the evidence of
her reasons for certainty.
We explained in our harmless error analysis in part I
above, the evidence of defendant’s guilt provided by Jessica, other
witnesses, and the surveillance video was overwhelming. As in
Lemcke, when the single, short certainty factor is viewed in the
context of this entire instruction and record, the circumstances
mitigate against a finding of fundamental unfairness that
deprived defendant of his due process rights or lessened the
prosecutor’s burden of proof. (See Lemcke, supra, 11 Cal.5th at
pp. 646-647.)
Finally given the overwhelming evidence of defendant’s
guilt, if the certainty factor had been excised and Jessica had

33
never testified that she had “no doubt” it was defendant who
killed Aguilar and shot her twice, we are satisfied that there
would remain no reasonable likelihood of any different outcome.
Defendant thus has no claim of ineffective assistance of counsel
for failing to request a modification of CALCRIM No. 315, and
the issue is forfeited.
III. Alleged prosecutorial misconduct
Defendant contends that the prosecutor engaged in
misconduct in two areas of her summation, which denied him a
fair trial and due process of law, requiring reversal.
“‘A prosecutor commits misconduct when his or her conduct
either infects the trial with such unfairness as to render the
subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
trier of fact.’ [Citation.] ‘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.’ [Citation.] ‘When
attacking the prosecutor’s remarks to the jury, the defendant
must show’ that in the context of the whole argument and the
instructions there was ‘“a reasonable likelihood the jury
understood or applied the complained-of comments in an
improper or erroneous manner.”’” (People v. Rangel (2016) 62
Cal.4th 1192, 1219.)
A. The use of the word “fight” for “argument”
Defendant asserts that the first area of misconduct resulted
from stating that defendant was “fighting” with Aguilar, when
making reference to Jessica’s testimony regarding the argument
between defendant and Aguilar the day before the shooting.

34
Defendant argues that the word “fight” necessarily means a
physical fight, and since there was evidence only of a verbal
argument between the two men, it was misconduct. The
prosecutor stated:
“We know in this case that [defendant] seemed to be
sort of a bully. That fight the day before, that during
his testimony he tried to exclude himself out of it to
try to say, no, I was getting my kids and it was only
[Peraza] and Jessica who were fighting. We know
from Jessica’s testimony that he was fighting with
[Aguilar] and that Jessica and [Peraza] were fighting.
[¶] [H]e in fact was bugging [Aguilar]. He in fact
was fighting with him. You decide that.”
Defendant suggests that the prosecutor’s use of the word “fight”
rather than “verbal argument” was a deliberate
misrepresentation intended to support a motive theory that the
prosecutor had repeatedly attempted to present with hearsay
evidence.
Defense counsel did not object in a timely fashion or on the
same ground asserted here and made no assignment of
misconduct. Counsel did not ask for an admonishment or a
clarification of the prosecutor’s choice of words. Indeed, counsel
did not object or mention it at all. Defendant claims that the
issue was preserved when defense counsel objected twice to the
prosecutor’s “attempts to introduce inadmissible hearsay
evidence about a fight Jessica heard about between [Aguilar] and
[defendant],” and then later asked that the testimony be stricken
and for a mistrial. However, as respondent points out, that was a
different line of questioning. The hearsay issue involved a
different fight that Jessica had heard about. A short time after
defense counsel’s objections were sustained, the prosecutor
turned to Jessica’s fight with Peraza the night before the

35
shooting, and the simultaneous verbal argument between
defendant and Aguilar that Jessica witnessed. There was no
objection to this line of questioning.
A “defendant’s failure to raise an objection to a prosecutor’s
remarks and to request a curative instruction forfeits the
objection.” (People v. Williams (2016) 1 Cal.5th 1166, 1188.)
Furthermore, an appropriate curative instruction would have
been as easy to find as the nearest dictionary. The word “fight” is
commonly used to mean a verbal disagreement or argument.
(Merriam-Webster’s Online Dict. (2021) [as of Oct. 27, 2021], archived at
.)
Defendant contends that the issue should be reached due to
the ineffectiveness of counsel for failing to object. Citing People v.
Yeoman (2003) 31 Cal.4th 93, 149, defendant points out that it is
improper to invite the jury to speculate. He contends that the
prosecutor improperly invited the jury to speculate that
defendant was physically fighting with Aguilar, when she ended
the challenged passage with, “[H]e in fact was bugging [Aguilar].
He in fact was fighting with him. You decide that.” Defendant
concludes that defense counsel was ineffective for failing to
object, because there can be no strategic reason for not objecting
to such an argument.
Defendant has mischaracterized the prosecutor’s argument
by means of a strategic placement of ellipses and the omission of
nearly the entire paragraph ending with, “You decide that.”
While a prosecutor should not invite the jury to speculate, it is
proper to ask the jury to draw reasonable inferences from the
evidence. (People v. Yeoman, supra, 31 Cal.4th at p. 149.) That
is what the prosecutor did. Any objection based on speculation

36
would have been futile, and thus counsel was not ineffective.
(See People v. Anderson, supra, 25 Cal.4th at p. 587.)
We conclude that defendant has failed to preserve his
challenge to the prosecutor’s word choices. Moreover, defendant
has not shown that the jury misinterpreted “fight” to mean a
physical fight. Jessica testified that the argument between
Aguilar and defendant was a verbal argument, which never
became physical. The trial court instructed the jury with
CALCRIM No. 222 as follows: “In opening statements and
closing arguments, the attorneys discuss the case, but their
remarks are not evidence. Their questions are not evidence.
Only the witnesses’ answers are evidence.” “It is fundamental
that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.” (People v.
Gonzales, supra, 51 Cal.4th at p. 940.) As the record reflects no
confusion on the part of the jury or requests for further guidance
with regard to the meaning of the word “fight,” we do not assume
they were misled by the prosecutor’s argument. (Cf. id. at
pp. 939-940.)
B. Jessica’s alleged delay in identifying defendant
In the second challenged area of argument, defendant
contends that the judgment should be reversed because the
prosecutor engaged in misconduct in final argument by
comparing Jessica’s alleged delay in identifying defendant while
she was in the hospital, to the reluctance of sexual assault
victims to report their attackers. Bypassing the trial court’s
rulings with regard to this issue defendant directly challenges
the prosecutor’s remarks. As defendant does not claim that the
trial court abused its discretion with regard to this contention, we
reject it.

37
 Defense counsel argued at length during summation
regarding Jessica’s refusal to speak to Detective Peyton and her
alleged delay in identifying defendant during her hospital stay.
In rebuttal, the prosecutor reminded the jury that Jessica had
been intubated, and she argued that common sense would
indicate that talking might be uncomfortable. The prosecutor
went on to explain why a victim might be reluctant to identify
her assailant. She argued: “You might not be in the best of
moods to talk. And, yes, she didn’t care for Peyton. . . . She was
afraid, but she was safe in the hospital. [¶] Remember, she
stayed there about five days, which is the 26th is when she gets
released to go back home. Maybe to those apartments. And she
discloses to her mom who the shooter is, and now she wants
police to know who the shooter is because she’s going to be out of
that hospital. No longer safe. Going back to that neighborhood,
the defendant’s neighborhood.”
Right after the above-quoted paragraph, the prosecutor
began the challenged argument as follows: “Unless you take it
outside this particular case—I thought immediately of children
who have been molested before. Do they disclose right away
every single time? No. Years go by. Sometimes because the
pervert, the person lives right with them. Sometimes because
they’re too afraid to talk. Sometimes because they don’t have
that strength to disclose. Or maybe because they don’t know who
to trust. They don’t feel ready to tell.”
Defense counsel did not object, and the prosecutor
continued: “Does it mean that it didn’t happen to them? Does it
mean that that child didn’t get molested because they disclosed
seven years later or 10 years later? The woman who discloses the
rape. Does it mean that it’s not true? Because that’s what

38
counsel is basically saying, because she took too long to disclose,
then it must not be true.”
Still, there was no objection. The prosecutor’s next
sentence was, “Let me think of it. Let’s go ahead and use
common sense, because you don’t check out your common sense
out the door.” Defense counsel then objected and said, “Improper
argument.” Counsel clarified, “The rapist and child perverts.”
Without ruling, the trial court told the prosecutor to move on.
After the prosecutor had completed the remainder of her
summation, defense counsel moved for a mistrial on another
issue, and the trial court, not defendant, brought up the issue of
the prosecutor’s delay argument and defendant’s objection. The
trial court found that the objection was untimely as the
prosecutor had completed her argument on that point, but it
agreed that the argument was improper, “a very, very bad
comparison [to] compare a late reporting victim of a child molest
to the defendant’s conduct.” The court also found that the
prosecutor had argued matters not in the record. The court
deferred the issue until after instructions in order to undertake
some research.
After the instructions and before deliberations began, the
trial court proposed the following admonition:
“Earlier during closing argument there was an
argument made explaining why a child victim may
not immediately report his or herself molestation to
the authorities. You are instructed that there has
been no evidence as to why a child victim may or may
not report such an incident and what circumstances
may surround that failure to report. That
comparison is not relevant to this case and you are
instructed to disregard that argument completely and
not let it enter into your deliberations in any way.

39
 You’re reminded that what the attorneys say is not
evidence.”
Defense counsel then again moved for a mistrial and
requested that in case of a denial, the phrase, “Earlier during
closing argument,” be changed to “Earlier during the district
attorney’s closing argument.” The trial court found the proposed
instruction to be curative, denied the mistrial motion, and gave
the instruction with the requested modification. Defense counsel
made no assignment of misconduct, and the trial court did not
specifically rule on that issue.
Defendant does not contend that the trial court’s curative
instruction was error or that the court abused its discretion in
denying the motion for mistrial. In essence, defendant’s appeal is
taken from the alleged prosecutorial misconduct, not the court’s
rulings, which amounts to a suggestion that we should review the
misconduct issue de novo. “As a general matter, an appellate
court reviews a trial court’s ruling on prosecutorial misconduct
for abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155,
213.) A mistrial “should be granted only when a party’s chances
of receiving a fair trial have been irreparably damaged.” (People
v. Ayala (2000) 23 Cal.4th 225, 283.) And the trial court has
“‘considerable discretion’ to determine whether . . . the error can
be cured through admonishment or instruction.” (People v. Perez
(2018) 4 Cal.5th 421, 459.) “‘Under this standard, a trial court’s
ruling will not be disturbed, and reversal of the judgment is not
required, unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.’” (People v. Dunn (2012) 205
Cal.App.4th 1086, 1094.)

40
 Defendant attacks curative instructions in general with
dicta in a federal appeals court and a United States Supreme
Court concurring opinion. (U.S. v. Garza (5th Cir. 1979) 608 F.2d
659, 666 [“‘“if you throw a skunk into the jury box, you can’t
instruct the jury not to smell it”’”]; Krulewitch v. United States
(1949) 336 U.S. 440, 453 (conc. opn. of Jackson, J.) [“naive
assumption that prejudicial effects can be overcome by
instructions . . . , all practicing lawyers know to be unmitigated
fiction”].) Defendant asks, in essence, that we presume that no
instruction can cure the prejudicial effect of any prosecutor’s
remarks. However, error is never presumed. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) Thus, it is defendant’s
burden to demonstrate that the curative instruction was
ineffective.
“‘“[W]hen the claim focuses upon comments made by the
prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of
the complained-of remarks in an objectionable fashion.”’” (People
v. Ayala, supra, 23 Cal.4th at p. 284.) Defendant instead focuses
on the prejudice that may have resulted from the alleged
prosecutorial misconduct without regard to the possible
effectiveness of the curative instruction given here. Defendant
incorporates his prejudice argument addressed in part I, above,
in which he argued that the evidence against him was not
overwhelming, that there were conflicts in the witnesses’ recall,
that some testimony was contradicted by other witnesses, and
that some of Jessica’s and Moreno’s testimony should not be
believed by this court. We have already rejected his claim that
the evidence was not overwhelming in response to defendant’s
prejudice argument in part I. As evidence of defendant’s guilt

41
was in fact overwhelming, and as defendant does not contend
that the trial court’s denial of the mistrial or its curative
instruction was an arbitrary, capricious or patently absurd
exercise of discretion that resulted in a miscarriage of justice, we
reject defendant’s misconduct challenge to the prosecutor’s
remarks regarding victims’ fear of their attackers.
IV. No cumulative prejudice
Defendant contends that if the prejudice caused by the
errors alleged in this appeal do not require reversal, then the
cumulative prejudice of all the alleged errors requires reversal.
As we have rejected on the merits all of defendant’s claims of
error there can be no cumulative prejudicial effect. (See People v.
Sapp (2003) 31 Cal.4th 240, 316.) Moreover, our harmless error
analysis ante, would apply equally to any of defendant’s asserted
errors if they had been well taken. Thus, even considering them
together, there is no cumulative effect that might warrant
reversal of the judgment. (See People v. Henriquez (2017) 4
Cal.5th 1, 48.)

DISPOSITION
The judgment is affirmed.

________________________
CHAVEZ, J.

We concur:

_______________________ ________________________
LUI, P. J. HOFFSTADT, J.

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