People v. Vega CA1/4

Filed 3/10/22 P. v. Vega CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent, A153620
v. (Solano County Super. Ct.
ROBERT JAMES VEGA, No. VCR225774)
Defendant and Appellant.

In February 2016, while in a confused mental state, Robert James Vega
shot and killed an off-duty police officer, who was also his de facto father-in-
law and his son’s grandfather. Charged with murder (Pen. Code,1 § 187,
subd. (a)) with personal use of a firearm (§ 12022.53, subd. (b), (c) & (d)), he
entered dual pleas of not guilty and not guilty by reason of insanity (NGI).
Vega claimed he killed Augustine Vegas (Augustine),2 whom he loved like a
father, in a temporary state of psychosis associated with posttraumatic stress
disorder (PTSD), from which he had suffered since returning from military
service in Iraq in 2007.

1 Undesignated statutory references are to the Penal Code.
Because several individuals who play a role in this case bear the same
2

surname, members of the Vegas family will be identified by their first names.
No disrespect is intended.

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 The prosecutor’s theory was that Vega’s psychotic state was induced by
cannabis consumption and did not qualify as insanity under the law. (See
§§ 25, 29.8.) Both psychotic conditions are relatively rare, but the jury sided
with the prosecution. In a bifurcated trial, the jury acquitted Vega of
murder, convicted him of voluntary manslaughter (§ 192, subd. (a)), found the
firearm use allegation true, and found Vega was sane at the time of the
crime.
Vega now appeals, alleging prosecutorial misconduct, ineffective
assistance of counsel, and improper designation of an expert witness in the
sanity phase of the trial, as well as various forms of sentencing error and
cumulative error. We conclude Vega’s claims either have been forfeited or
are without merit. Based on newly enacted sentencing legislation that the
Attorney General concedes applies retroactively to this case, we shall
conditionally vacate the sentence and remand for reconsideration of the
sentence imposed. Subject to that conditional vacatur, we shall affirm in all
other respects.
I. BACKGROUND
A. The Guilt Phase of the Trial
Background of the Offense
Vega met Angel Vegas (Angel) shortly after he returned from Iraq, and
they became and remained a couple for some seven years thereafter. They
had a son together in 2009 named L. Early in their relationship they stayed
in Angel’s parents’ home in Vallejo for approximately three years. Angel’s
father, Augustine, was a Richmond police officer. Her mother, Sandra Vegas
(Sandra), became like a mother to Vega. Vega loved and admired Augustine,
who helped him get into the police academy, from which Vega graduated with
honors, although he was never hired by a police agency. Vega called Sandra
“Mom” and Augustine “Pops.”

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 Angel and Vega lived with her parents until approximately 2012,
when they got their own apartment. By the time of the events in this case,
they had separated but were coparenting their son and remained on good
terms. Vega had his own apartment in Fairfield, and Angel had gone back
to live with her parents in Vallejo. Vega visited Angel and her family
about three times a week, often staying for dinner.
For a few days before the killing, Vega had been hallucinating voices
of what he thought were his downstairs neighbors talking “bad” about him
and his family. He confronted the neighbors, but they denied it. Vega was
scared and agitated. Angel became concerned about him and did not want
him to get into a dispute with his neighbors, so on February 9, 2016, she
suggested that he and L. spend the night at her parents’ house, and he
agreed.
On the morning of February 10, 2016, Sandra noticed that Vega was
“not his normal self,” and he complained of hearing voices. Vega again
planned to spend the night at the Vegas house. Through the evening of
February 10, Vega continued hearing voices, and after Augustine and Sandra
went to bed, he thought he heard them talking about him. He thought
Sandra said she was going to pray for him, and he thought Augustine said,
“I’m going to ask him about it, and if he doesn’t react right, I’m going to go in
there and I’m going to kill him.” Augustine regularly kept one of his
handguns on the bench next to his bed or on the ledge at the foot of the bed.
At approximately 4:30 a.m. on February 11, 2016, Augustine and
Sandra were awakened by Vega, who had been sleeping in Angel’s bedroom,
shouting, “Everyone in this fucking house wake up right now!” Alarmed,
Augustine jumped out of bed, put on his shorts, and proceeded to Angel’s
bedroom across the hall. As he entered the room, Vega was standing in front
of him, holding a 9mm handgun.

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 Augustine held his arms outstretched before him, his palms facing up,
and said, “Rob, man, what’s going on?” Vega said: “No, Pops. You tell me
what’s going on.” Vega then shot Augustine twice in the face. L. screamed,
“Daddy, don’t kill grandpa!” After Augustine fell face-up to the floor, Vega
stood over him and said, “I respected you, Pops. I love you.” Vega then
unloaded his clip—six more bullets—into Augustine’s lower torso. Eight
bullets struck Augustine; seven of them would have been fatal individually.
Meanwhile, Sandra escaped out a second-floor window and jumped off the
roof, injuring her ankle, before making it to safety at a neighbor’s house.
After the shooting, Vega asked Angel to give L. to him, and she told the
child to go with his father. Vega took L. and drove to his apartment in
Fairfield. He was picked up by the Fairfield police as he parked his car in
front of his apartment. A 9mm handgun, which proved to be the weapon that
killed Augustine, was found under the driver’s side floor mat of Vega’s car.
Vega’s State of Mind Just Before Killing Augustine
Backing up a bit chronologically, on the afternoon of February 10, 2016,
Vega called Angel to tell her he had run out of gas, so she picked him up and
helped him refuel his car. Angel again invited Vega to stay the night at her
parents’ house, and he agreed. He arrived at the Vegas home about 4:00 p.m.
Around 5:00 to 6:00 p.m., Vega asked Angel if she heard something and
asked her if two men lived next door. She said she had not heard anything
but thought two men might live next door. Vega said he knew two men lived
next door because he had heard them talking and told her: “People are
talking, Angel. Pay attention.” Vega reminded Angel of Vega’s father, who
had suffered from mental illness. She was “weirded out” by Vega’s behavior
but did not realize he was hallucinating.
When Angel left for work about 7:00 p.m., Vega was watching TV and
talking with Augustine, Sandra, L., and Angel’s little sister, Mia Vegas (Mia),
who also lived there. After putting L. to bed, Vega left the Vegas house and

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went to his apartment in Fairfield for a while, but he returned to the Vegas
home to sleep. Sandra and Augustine went to bed about 10:30 p.m. Their
bedroom was across the hall from Angel’s bedroom. Vega returned to the
Vegas house after about an hour or a little more at his apartment because he
heard the voices of his neighbors again and became confused and felt unsafe.
After Angel got home from work around 4:00 a.m., she went upstairs to
her bedroom, where Vega and L. were lying in bed. Angel got into bed, too,
with L. between her and Vega. Vega started talking about love and
repeatedly said God was talking to him about love, God wanted him to spread
God’s love, but nobody had shown him the love they should have. When
Angel suggested they postpone the discussion until morning, Vega became
increasingly emotional, his voice started shaking, he eventually started
crying, and he refused Angel’s and L.’s repeated entreaties to be quiet.
The noise woke Mia. She came to Angel’s bedroom and offered to take
L., but Vega refused. Soon, Vega produced a gun, which scared and angered
Angel. They argued over the gun. Vega got louder and angrier and kept
talking about God’s love.
Angel finally told Vega he would have to leave the house if he did not
stop. He looked at her with a “blank stare,” reached upwards, started almost
“growling,” and then fell onto his knees and prayed. Vega eventually got
back into bed and said they should just go to sleep, but Angel was still scared,
so she told him to leave. He did not leave, but again looked at her with a
“blank face.”
Either Angel or Vega then opened the bedroom door, and she told him if
he did not leave, she would wake up her parents. Vega then yelled,
“Everyone in this fucking house wake up right now!” The aftermath has
already been recounted.

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 Vega’s Testimony in His Own Defense
Vega testified in his own defense during both the guilt and sanity
phases of the trial. Vega lived with his mother until he was 14 years old,
then moved in with his grandparents in Lancaster, California. Vega’s mother
was an alcoholic and his father was mentally ill and talked to himself.
After graduating from high school in 2003, Vega joined the Army, from
which he was honorably discharged in 2007. During his tour of duty he
served in the Middle East in both Kuwait and Baghdad. The military taught
Vega his firearm was his most important asset; while deployed in the Middle
East, he was required to keep a weapon and ammunition on his person at all
times. While in Iraq, he often heard gunfire all night long and mortars at
close range. On one occasion, Vega had to spend an entire day cleaning up
rubble and body parts after a truck bomb had blown up a forward operating
base. Another time Vega witnessed a friend die after a concrete wall
collapsed on him and crushed him to death.
After returning to civilian life, Vega soon purchased a 9mm handgun
and would usually sleep with the gun in his bed or within arm’s reach.
Vega had trouble sleeping after leaving the Army and had a heightened
suspicion of others. He would spend long periods crying. In 2008, he began
seeing a psychologist at the Veterans Administration, Dr. Jerry Boriskin.
Dr. Boriskin testified he diagnosed Vega with PTSD, a complex or severe
variant, with severe and acute symptoms, which included anxiety,
hypervigilance, and bouts of sudden and prolonged crying.
Angel also testified that Vega was very religious, frequently
reminding others of God’s love, reading from the Bible, and sending
scripture to Angel “all the time.” This religious inclination also showed
itself in his religious fervor on the night he shot Augustine.
As for the events on the night in question, Vega testified to hearing
Augustine’s voice threaten to kill him. When Augustine entered Angel’s

6
bedroom, he made eye contact with him and remembered nothing after
that. He believed Augustine was armed and was coming to kill him, and
testified he acted in self-defense.
The Jury’s Verdict
Vega was charged with murder of Augustine (§ 187, subd. (a)), with
personal use of a firearm (§ 12022.53, subds. (b), (c) & (d)), and kidnapping of
L. (§ 207, subd. (a)). The case never went to trial on the kidnapping charge.3
The jury was instructed on self-defense and imperfect self-defense. The jury
acquitted Vega of murder, convicted him of voluntary manslaughter (§ 192,
subd. (a)), and found the firearm use allegation true.
B. The Sanity Phase of the Trial
The parties stipulated the evidence introduced in the guilt phase of the
trial could be considered in the sanity phase.
The Defense Case
a. Vega’s Testimony
Anticipating the prosecution’s expert testimony that his psychosis was
cannabis-induced, Vega testified he first smoked marijuana when he was 18
and started smoking it every day soon after he returned from the Army. He
abstained from marijuana entirely from June 2011 to December 2014, when
he was in the police academy and was applying to various police agencies.
The effects of marijuana lasted an hour or two and included stress relief, help
with sleep, and a general sense of well-being. Vega did not consider
marijuana to be harmful because, unlike alcohol and hard drugs, with which
his family had had serious addiction problems, he did not know anyone who
had such problems with marijuana.
Vega had never experienced hallucinations before February 6, 2016,
which was when he first started hearing voices. He did not smoke marijuana

3Vega suggests the charge was dropped by the prosecution before trial.
We are unable to confirm that in the record.

7
that day because he spent the day with his son, and he never got high around
his son. After he put his son to sleep at night, he heard what he believed to
be his neighbors talking about him, saying things they could only know if
they had been watching him, like “what kind of man sleeps with his cat?”
The next day, February 7, 2016, was Super Bowl Sunday, and Vega
heard voices just before the game came on TV, and he had not smoked
marijuana. He also heard voices later that evening, but he could not
remember what they said.
On Monday February 8, 2016, Vega took his son to school in the
morning and smoked marijuana afterward. Vega smoked marijuana again at
around 9:00 p.m. and, at around 11:00 p.m., heard voices that were more
critical and sexually suggestive than before. Vega asked several neighbors
about it, but they denied having said anything about him. He did not
remember what had occurred on Tuesday, February 9, 2016, and did not
remember if he had smoked marijuana or had heard voices.
On February 10, 2016, Vega smoked marijuana in the late morning or
early afternoon, after he had taken his son to school and had gone to
Walmart, but he did not smoke marijuana again that day. When he left the
Vegas house on the night of February 10, 2016, he went briefly to his
apartment but returned to the Vegas home after an hour or so because he
heard the voices of his neighbors again. He did not smoke marijuana during
the time he was at his apartment. Vega believed his marijuana use had
nothing to do with his hearing voices because he had used the same
marijuana for a long time in similar quantities and had never heard voices or
experienced anything similar.
b. Dr. David Howard’s Testimony
Dr. David Howard, a clinical and forensic psychologist retained by the
defense to evaluate Vega’s sanity, testified Vega had suffered from temporary
psychotic disorder when he shot Augustine, which had caused auditory

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hallucinations for three or four days, and as a result he was legally insane
under California law. While Dr. Howard believed Vega understood the
nature and quality of his act, he concluded Vega was incapable of
appreciating that it was legally or morally wrong. Dr. Howard explained that
temporary psychotic disorder was relatively rare, it involved disordered
thinking and hallucinations or delusions that could last from one day to one
month. The disorder was primarily caused by genetic predisposition and
acute stress, such as divorce, separation from loved ones, isolation, and work
problems.
Dr. Howard concluded Vega’s psychosis was acutely precipitated by
stress related to his relationship with Angel, his isolation, his lack of a broad,
healthy network of social support, and the fact that he had less contact with
his son than he wanted. Dr. Howard thought Vega’s father’s mental illness
was likely a contributing factor. Dr. Howard also concluded Vega’s symptoms
during the offense, which included increased reactivity, anxiety, intrusive
thoughts, and paranoid ideation, were consistent with, and likely occurred in
association with, PTSD. The results of the Miller Forensic Assessment of
Symptoms Test led Dr. Howard to conclude Vega was not malingering.
Dr. Howard testified that he had relied in part on the opinion of a
forensic scientist who had reviewed Vega’s toxicology screen. The scientist
concluded the THC levels in that report represented a maintenance level of
cannabis use that likely would have had very little effect on developing
paranoia or psychosis. It was more likely Vega was using cannabis to treat a
preexisting paranoia. Dr. Howard rejected cannabis-induced psychosis as a
diagnosis because there had been no change in Vega’s chronic use of cannabis
for several years.
c. Dr. Steven Pittavino’s Testimony
Dr. Steven Pittavino was a forensic and clinical psychologist
appointed by the trial court to evaluate Vega’s legal sanity at the time of

9
the offense. Dr. Pittavino interviewed Vega three times, communicated
with defense counsel and the prosecution, reviewed all the available
evidence, and reviewed Vega’s jail medical and mental health records.
Dr. Pittavino concluded Vega had experienced a brief psychotic disorder at
the time of the offense which had been triggered by acute distress, and as a
result, he was incapable of distinguishing right from wrong or
understanding the nature and quality of his act.
Dr. Pittavino concluded that Vega had suffered from auditory
hallucinations, which were based on religious and highly sexualized themes,
and that these hallucinations were consistent with brief psychotic disorder.
Dr. Pittavino explained that Vega’s auditory hallucinations met the criteria
for having lasted at least 24 to 48 hours because, although the voices
themselves were intermittent rather than constant for that period, they were
still part of a delusional process in which Vega believed the voices were real
and believed he and his family were in ever-present and increasing danger.
Dr. Pittavino concluded that many of Vega’s symptoms around the time of the
killing, which included hypervigilance, hypersensitivity, difficulty sleeping,
impulsivity, increased responsiveness to internal stimuli, and auditory
hallucinations, were also consistent with his prior diagnosis of PTSD.
The Prosecution’s Case
a. Vega’s Use of Cannabis
Dr. Boriskin testified that he learned during a treatment session with
Vega in September 2010 that Vega was self-medicating with cannabis.
Dr. Boriskin warned him against it and advised him that in certain people
with PTSD, cannabis use can increase the risk of losing touch with reality.
Dr. William Anderson, a forensic toxicologist who reviewed the
toxicology test of Vega’s blood sample, which had been drawn about seven
hours after the killing, testified that Vega’s toxicology report showed not only
that he had THC in his system, but that he was a chronic, frequent cannabis

10
user. It was likely he had used cannabis within 2 to 24 hours prior to the
blood draw.
Much of the jury’s knowledge about Vega’s use of cannabis came from
Dr. Jessica Ferranti, a forensic psychiatrist retained by the prosecution, who
evaluated Vega’s sanity, and who repeated what he had told her in their
interview. Vega said he first used marijuana when he was 16 but did not
become a frequent user until he was 26, when he started using marijuana
every day, sometimes in the morning, but usually in the evening. He used a
gram to a gram and a half per day. Vega usually got a variety of Kush from
the cannabis club or from a friend who worked at the cannabis club, but he
could not specifically remember what strain of marijuana he had been using
during the week leading up to the shooting or where he got it.
A police officer testified, in a search of Vega’s apartment on the
afternoon of the killing, he smelled burnt cannabis in the living room and
found a plastic baggie of suspected cannabis inside an open Bible on the
coffee table and some “flakes” of “green stuff ” on the table. The police did not
find any remnants of smoked cannabis cigarettes.
b. John Maike’s Testimony
John Maike, a mental health clinician for California Forensic Medical
Group, which had a contract to provide mental health assessments for
inmates in the Solano County jail, performed a mental health assessment of
Vega about eight and a half hours after the killing. He was designated an
expert in mental health assessments. Vega told Maike he did not have a
mental health history, had not been taking psychotropic medications, did not
have any mental health concerns, and was not experiencing hallucinations or
paranoia.
According to Maike, Vega’s affect and mood were appropriate, he was
calm and cooperative, he made eye contact, his speech was clear and logical,
and he did not appear to be suffering from psychosis. Maike estimated the

11
assessment took 15 to 20 minutes, which was average length for an
assessment. Maike contacted Vega again on February 17, 2016, and he again
indicated he was not suffering from any mental health issues, which was
consistent with his presentation.
c. Dr. Don Purcell’s Testimony
Dr. Don Purcell, who provided contract psychiatric services at the
Solano County jail, evaluated Vega at about 6:30 p.m. on February 11, 2016,
and Vega denied having any mental health symptoms other than paranoia.
But when Dr. Purcell explained that paranoia meant unusual suspiciousness
in a situation that would normally not warrant that reaction, Vega denied
being paranoid. Dr. Purcell also conducted brief evaluations of Vega on
February 13 and March 17, 2016, and Vega again did not display any mental
health symptoms.
Neither Maike nor Dr. Purcell testified to an opinion on Vega’s mental
state at the time of the crime. Their testimony established only that Vega did
not display any signs of psychosis or complain of symptoms of psychosis in
the hours, days, and weeks after the killing, while he was in jail custody.
d. Dr. Jessica Ferranti’s Testimony
Dr. Ferranti interviewed Vega on January 30, 2017, and learned from
Vega that both of his parents had been drug abusers, his father was mentally
ill, and Vega himself had been in the military. She nevertheless found his
marijuana use was the most significant factor causing his psychotic state on
February 11, 2016, when he killed Augustine.
Vega told her he had first experienced auditory hallucinations on
Saturday, February 6, 2016, about half an hour after he had put his son to
sleep at 9:00 to 9:30 p.m. Dr. Ferranti testified this occurred after he had
smoked cannabis, although Vega had testified he did not smoke marijuana
that day. Vega went to sleep that night, and when he awakened the next
morning—Super Bowl Sunday—Dr. Ferranti testified he felt back to normal.

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 Vega testified he heard voices before the Super Bowl game.
Dr. Ferranti testified, however, he had watched the Super Bowl with his son
and did not experience any hallucinations. Dr. Ferranti admitted Vega had
not told her he did not experience hallucinations before the Super Bowl.
Dr. Ferranti testified Vega again put his son to sleep around 9:00 to 9:30 p.m.
that night, used cannabis, and experienced auditory hallucinations.
When Vega awoke the next morning on Monday, February 8, 2016, he
was not hearing voices but decided to stay home from work anyway because
he had not slept well the night before. He again did not experience any
hallucinations or delusions during the morning and early afternoon. He
believed he smoked cannabis in the afternoon and again in the evening, and
his auditory hallucinations began around 5:00 p.m. They lasted a long time
and were worse than the day before. Vega contradicted this testimony,
testifying he did not tell Dr. Ferranti he had an onset of the hallucinations at
5:00 p.m.
According to Dr. Ferranti, Vega told her when he woke up on Tuesday
February 9, 2016, he was not experiencing hallucinations, but he did not go
to work that day, either. He smoked cannabis in the evening and experienced
auditory hallucinations thereafter. Vega testified he did not remember what
happened on February 9.
Vega told Dr. Ferranti he may have smoked cannabis in the morning on
February 10, 2016, after he dropped his son at school, and he began
experiencing auditory hallucinations during the day. He again experienced
them at around 5:00 or 6:00 p.m. when he was in the Vegas home. He
experienced them continuously until he was booked into county jail. He told
Dr. Ferranti he did not think he had used cannabis while he was at his
apartment for about an hour on the night of February 10, 2016. Vega told
Dr. Ferranti his auditory hallucinations stopped when he entered the county
jail upon his arrest.

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 Dr. Ferranti concluded that Vega was earnest and self-disclosing and
was not malingering. She believed he was psychotic at the time he shot
Augustine, and as a result, he was incapable of appreciating the
wrongfulness of his acts. Still, Dr. Ferranti opined that Vega did not meet
the legal definition of insanity because his psychosis was the result of
voluntarily ingesting cannabis, as demonstrated by the temporal relationship
between his use of the drug and the onset of his symptoms. Dr. Ferranti
therefore diagnosed him with cannabis-use disorder and cannabis-induced
psychotic disorder, the symptoms of which were eliminated when he was
separated from the substance. Such a temporary drug-induced psychotic
disorder precludes a finding of NGI. (See §§ 25, 29.8.)
Dr. Ferranti acknowledged that cannabis induces psychosis only “[i]n
rare cases.” She also knew Vega had used cannabis chronically for years
without experiencing auditory hallucinations, and there was no evidence he
had used a variety of cannabis prior to the shooting that was at all different
from what he had been using previously. Although Vega likely was not under
the influence of cannabis when he killed Augustine, Dr. Ferranti stood by her
diagnosis of cannabis-induced psychosis because the disorder often lasts one
to three days after cannabis use. Dr. Ferranti rejected temporary psychotic
disorder as a diagnosis because the hallucinations did not persist for a solid
24 hours, there were no immediately precedent stressors that would have
triggered such a psychosis, and the rapid remission of symptoms after Vega’s
arrest reinforced her diagnosis.
The Jury’s Verdict and the Sentence
The jury sided with Dr. Ferranti, evidently concluding Vega’s use of
cannabis was the precipitating factor causing his break with reality. The
jury found Vega was sane when he committed the offense. As discussed in
more detail in part II.F.1., post, the court sentenced Vega to 21 years in
prison.

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 II. DISCUSSION
A. Prosecutorial Misconduct in Closing Argument in the
Sanity Phase
Vega raises no issues relating to the guilt phase of the trial. With
respect to the sanity phase, however, he contends the prosecutor engaged in
extensive misconduct during closing argument: (1) improperly vouching for
Dr. Ferranti especially, but also for Dr. Purcell and John Maike;
(2) improperly disparaging Dr. Howard and Dr. Pittavino; (3) misstating the
law; and (4) misstating the evidence and going outside the evidence.
Forfeiture by Defense Counsel’s Failure To Object
“ ‘ “A prosecutor who uses deceptive or reprehensible methods to
persuade the jury commits misconduct, and such actions require reversal
under the federal Constitution when they infect the trial with such
‘ “unfairness as to make the resulting conviction a denial of due process.’ ” ’ ”
[Citation.] ‘ “Under state law, a prosecutor who uses such methods commits
misconduct even when those actions do not result in a fundamentally unfair
trial.’ ” [Citation.] ‘When a claim of misconduct is based on the prosecutor’s
comments 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.’ ” ’ [Citation.] Prosecutorial misconduct
can result in reversal under state law if there was a ‘reasonable likelihood of
a more favorable verdict in the absence of the challenged conduct’ and under
federal law if the misconduct was not ‘harmless beyond a reasonable doubt.’ ”
(People v. Rivera (2019) 7 Cal.5th 306, 333–334 (Rivera).)
We agree with Vega that some of the claimed errors would be
considered prosecutorial misconduct, such as vouching (Rivera, supra,
7 Cal.5th at p. 336), telling the jury that prosecution witnesses would lose
their jobs or face discipline if they lied (People v. Rodriguez (2020) 9 Cal.5th
474, 481–483), misstating the law (People v. Fayed (2020) 9 Cal.5th 147, 204),
misstating the evidence (ibid.), and going outside the evidence (ibid.;
15
Rodriguez, at p. 480).4 We question, though, whether the specific statements
by the prosecutor in this case would legitimately fall into these forbidden
categories. We also do not think his conduct could be called “ ‘ “deceptive or
reprehensible.” ’ ” (Rivera, at p. 333.) More to the point, however, we
conclude Vega’s accusations of prosecutorial misconduct were forfeited by his
counsel’s failure to contemporaneously object and request an admonition.
“Where the defendant does not contemporaneously object to alleged
misconduct, we generally decline to review the claim on appeal unless a
timely admonition could not have cured the harm.” (Rivera, supra, 7 Cal.5th
at p. 334; see People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno); People v.
Johnsen (2021) 10 Cal.5th 1116, 1164–1165.) Vega asserts we should
nevertheless address his prosecutorial misconduct claims for three reasons:
(1) the misconduct affected his substantial rights; (2) an objection “would
have only further emphasized the prosecutor’s improper and highly
prejudicial arguments”; and (3) this court has “discretion to consider the
misconduct anyway.” We reject Vega’s attempt to bring himself within these
exceptions to the rule.
Whether the alleged error in the prosecutor’s argument affected Vega’s
“substantial rights” is immaterial to the forfeiture of a prosecutorial
misconduct claim; that exception applies only to instructional error. (§ 1259.)
Vega relies on the federal “plain error” doctrine (e.g., U.S. v. Combs (9th Cir.
2004) 379 F.3d 564, 568, 572) but cites no authority for the proposition that
the federal “plain error” standard for avoiding forfeiture applies to
prosecutorial misconduct claims in California state sanity trials. On the

4On the other hand, Vega’s claim of misconduct based on disparaging
defense experts is unfounded. “ ‘Argument may not denigrate the integrity of
opposing counsel, but harsh and colorful attacks on the credibility of opposing
witnesses are permissible.’ ” (Rivera, supra, 7 Cal.5th at pp. 334–335.)
Besides, the prosecutor’s comments about Drs. Howard and Pittavino were
grounded in the evidence and were neither extreme nor unfair.

16
contrary, People v. Arias (1996) 13 Cal.4th 92, 159 rejected a “plain error”
argument where a capital defendant did not object to the prosecutor’s
comments. (Accord, People v. Redd (2010) 48 Cal.4th 691, 731, fn. 19; People
v. Benavides (2005) 35 Cal.4th 69, 115.)
Next, citing People v. Hill (1998) 17 Cal.4th 800, 820–821, Vega argues
that “objecting likely would have only further emphasized the prosecutor’s
improper and highly prejudicial arguments.” This exception applies only in
cases of extreme and pervasive misconduct that create a “poisonous”
atmosphere at trial. (People v. Riel (2000) 22 Cal.4th 1153, 1212–1213.) That
did not happen here.
Finally, Vega argues “[a]n appellate court is generally not prohibited
from reaching a question that has not been preserved for review by a party.”
(People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) That may be true, but
we are advised our discretion “should be exercised rarely and only in cases
presenting an important legal issue.” (In re S.B. (2004) 32 Cal.4th 1287,
1293.) This case presents no such issue. We have considered the prosecutor’s
statements in context and conclude further discussion of the merits would
not, in any case, benefit Vega. He may not avoid the normal forfeiture rule.
Defense Counsel’s Failure To Object to Alleged
Prosecutorial Misconduct
Vega next contends his trial counsel was ineffective for failing to object
to the prosecutor’s arguments. “ ‘A defendant whose counsel did not object at
trial to alleged prosecutorial misconduct can argue on appeal that counsel’s
inaction violated the defendant’s constitutional right to the effective
assistance of counsel.’ ” (Centeno, supra, 60 Cal.4th at p. 674.) Such a
defendant “bears the burden of showing by a preponderance of the evidence
that (1) counsel’s performance was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficiencies resulted in prejudice.” (Ibid.; Strickland v.
Washington (1984) 466 U.S. 668, 688 (Strickland).) Vega cannot show either.
17
 A Court of Appeal “ ‘shall presume that “counsel’s performance fell
within the wide range of professional competence,” ’ ” and “[w]hen the record
on direct appeal sheds no light on why counsel failed to act in the manner
challenged, defendant must show that there was ‘ “ ‘no conceivable tactical
purpose’ ” for counsel’s act or omission.’ ” (Centeno, supra, 60 Cal.4th at
pp. 674–675.) And because tactics are involved, “ ‘a mere failure to object to
evidence or argument seldom establishes counsel’s incompetence.’ ” (Id. at
p. 675.)
Vega argues that “objecting would not have cured the misconduct . . .
and objecting likely would have only further emphasized the prosecutor’s
improper and highly prejudicial arguments.” We reject the first of those
propositions as unfounded. There is no reason why an admonition would not
have cured the assumed error. Even if we were to accept the truth of his
second proposition, defense counsel could have reached the same conclusion
himself and decided not to object for tactical reasons. Accordingly, Vega has
not shown counsel’s failure to object was objectively unreasonable.
Vega also fails to demonstrate prejudice, “that is, a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” (Centeno, supra, 60 Cal.4th at
p. 676.) We are convinced, even considering the merits of Vega’s claims, an
objection to the prosecutor’s comments would not have led to a more
favorable result for Vega. The jury was instructed that an attorney’s
argument is not evidence (CALCRIM No. 104), and it is presumed to have
followed that instruction (People v. Letner and Tobin (2010) 50 Cal.4th 99,
152). Accordingly, Vega’s claim of ineffective assistance of counsel fails.
B. Alleged Ineffective Assistance of Counsel for Deficiency in
Objecting to, Presenting, and Arguing Evidence
Vega argues his trial counsel was ineffective for failing to object to
Dr. Ferranti’s testimony on the following subjects: (1) “the statistical
probability of someone in [Vega]’s position suffering from temporary
18
psychosis”; (2) that “states which had legalized cannabis had seen ‘a big’
increase in fatal traffic accidents involving cannabis”; (3) that California “did
not have ‘labs that actually test cannabis . . . [for] mold and heavy metals,
things of that nature’ ”; (4) that certain individuals “were more susceptible to
cannabis-induced psychosis” “because the cannabis [they] used could have
been contaminated” and Vega could have been one of them “because he could
have experienced various ‘concurrent physiological stressors,’ such as
dehydration,” and (5) that “the Penal Code required that an alienist
evaluating sanity conduct a ‘detailed history’ and ‘a detailed analysis’ of the
defendant’s drug use.”
Vega’s Claims of Deficient Performance by Defense Counsel
As noted above, a defendant alleging ineffective assistance of counsel
bears the burden of showing both deficient performance and prejudice.
(People v. Riel, supra, 22 Cal.4th at p. 1175.) “ ‘Whether to object to
inadmissible evidence is a tactical decision; because trial counsel’s tactical
decisions are accorded substantial deference [citations], failure to object
seldom establishes counsel’s incompetence.’ ” (Id. at p. 1185.)
a. Probability Evidence
Dr. Howard testified on direct examination that brief psychotic disorder
was “[r]elatively uncommon,” occurring in “about 9 percent” of first onset
psychoses, and the disorder affects women more than men. It is caused by
genetic predisposition coupled with stressors. On cross-examination
Dr. Howard testified he has diagnosed “between 5 and 10 percent” of his
patients with brief psychotic disorder. Dr. Howard acknowledged the DSM
reports the disorder is more common in developing countries and “on average
these episodes last at least 17 days.”
Most of this evidence was elicited by defense counsel himself, and he
used it to argue to the jury that brief psychotic disorder is “not that rare” and
to undermine the prosecution’s theory of cannabis causation by emphasizing

19
the similar rarity of that diagnosis. He reasonably could have decided as a
tactical matter to elicit probability evidence and not to object to the
prosecutor’s questions in the same vein.
Vega challenges the use of this evidence because he contends “the
probabilities cited by the prosecutor were entirely irrelevant to the issue that
the jury was called upon to resolve, improperly invaded its province of
determining the ultimate issue, and skewed the result by ‘placing a thumb on
the scale for guilt,’ ” quoting People v. Wilson (2019) 33 Cal.App.5th 559, 571.
Vega erroneously relies on cases involving child sexual abuse accommodation
syndrome in which experts testified to the very small proportion of false
allegations of child sexual abuse, which the prosecution translated into a very
high probability the child accuser was telling the truth. (Wilson, at pp. 568–
571; People v. Julian (2019) 34 Cal.App.5th 878, 885–887; see People v.
Lapenias (2021) 67 Cal.App.5th 162, 178–181 [expert testimony that it is
“ ‘rare’ ” for child victims to make false accusations was inadmissible].) Such
statistics are inadmissible because they invade the province of the jury to
determine credibility of witnesses. (Wilson, at p. 571.) And at the same time,
such probabilities are irrelevant to the issues at trial because they tell the
jury nothing about whether this specific allegation is false. (Id. at pp. 570–
571.)
The use of statistics in this case was altogether different in that the
statistics were relevant to the incidence of Vega’s psychosis, not the
truthfulness of any witness. The statistics were about the likelihood of
competing diagnoses. The statistical evidence showed both forms of
psychosis were similarly rare. Dr. Ferranti testified on direct examination
that all substance-induced psychosis accounts for about 25 percent of first
onset psychoses, occurring much more commonly with cocaine and
methamphetamine, while cannabis-induced psychosis was “rare.”

20
 The probability evidence did not “plac[e] a thumb on the scale for guilt”
(People v. Wilson, supra, 33 Cal.App.5th at p. 571) because the evidence
remained evenly balanced, not severely tilted in one party’s favor as in the
child sexual abuse cases. Nor did it invade the province of the jury, which
remained in full control of puzzling through the numbers, together with all
the other evidence, to determine which rare psychosis Vega was more likely
suffering when he killed Augustine. Vega has not shown there was no
conceivable basis for counsel’s handling of this issue.
b. Increase in Traffic Fatalities in States Legalizing Cannabis
Vega faults defense counsel for failing “to object and move to strike
Dr. Ferranti’s testimony that states which had legalized cannabis had seen ‘a
big’ increase in fatal traffic accidents involving cannabis.” Vega contends this
evidence was irrelevant and “had a tendency to prejudice the jury against
cannabis and cannabis users.” The evidence was relevant to correlate
cannabis use with mental or physical impairment.
Vega also claims Dr. Ferranti’s assertion was incorrect based upon a
study—outside the appellate record—that supposedly “found that there was
no increase in traffic accidents, let alone fatal ones, after recreational
cannabis legalization in Washington and Colorado.” We are not prepared to
hold defense counsel to a standard of being aware of every study ever
published on a subject that may come up tangentially in expert testimony
through an unobjectionable question. Defense counsel could reasonably have
decided to forgo objecting to avoid wading into the conflicting, unsettled
evidence correlating marijuana legalization and traffic collision data. Nor
would the trial have turned out differently if the parties had further hashed
out their disagreement on this point.
c. Whether California Labs Tested Marijuana for Contaminants
Vega contends “Dr. Ferranti’s claim that California did not have
laboratories to test [cannabis] was also incorrect, as California law in fact

21
required that recreational and medical marijuana be test[ed] in a state-
certified laboratory . . . .” The issue arose in connection with Dr. Ferranti’s
testimony that contaminants, such as mold or heavy metals, could increase
the likelihood that a user of cannabis would develop a psychosis. Vega cites
former Business and Professions Code section 26101 (now, and at the time of
trial, Bus. & Prof. Code, § 26100), which requires laboratory testing of
cannabis sold in California. Dr. Ferranti testified, “[C]urrently, although it’s
going to change is my understanding, in the state of California, but currently
there’s no regulation, so there isn’t a laboratory testing of marijuana that
comes from dispensaries currently.” The significance of the testimony was
that contamination of the cannabis that Vega consumed around the time he
killed Augustine could not be ruled out and was one factor that could suggest
Vega may have been suffering from cannabis-induced psychosis.
Counsel could reasonably have decided not to move to strike
Dr. Ferranti’s testimony because the statute requiring testing upon which
Vega relies did not become effective until November 2016, after the killing at
issue here. That statute, even if in effect when Dr. Ferranti testified, did not
establish the existence of laboratories that would have tested Vega’s cannabis
in February 2016. The law did not require testing of marijuana at the time of
the offense and there was no evidence that a lab in fact tested the marijuana
Vega had consumed before the killing.5 Vega goes far outside the appellate
record to attempt to prove to us that some labs testing medical cannabis
existed in California in February 2016, which may have also tested

5 Business and Professions Code section 26101 was renumbered to
Business and Professions Code section 26100, which went into effect June 27,
2017, a few months before Dr. Ferranti’s testimony. (Stats. 2017, ch. 27,
§§ 65, 66.) We take judicial notice that the regulatory scheme required to
implement the new act was not in place at the time of Dr. Ferranti’s
testimony in November 2017, and licenses for testing laboratories were to
begin being issued on January 1, 2018. (Id., §§ 1(c), (g) & 5(y).)

22
recreational marijuana on occasion. But establishing the existence of testing
laboratories in California at the time of Dr. Ferranti’s testimony still would
not have ruled out the presence of contaminants in Vega’s marijuana.
Counsel could reasonably have decided not to contest Dr. Ferranti’s
statement, which, even if fully explored, could not have made a difference in
the outcome.
d. Dr. Ferranti’s Testimony About Individuals’ Particular
Susceptibility to Cannabis-induced Psychosis
Vega argues counsel should have objected to Dr. Ferranti’s testimony
that Vega “could have been more susceptible to suffering cannabis-induced
psychosis than an average person.” He refers to the following colloquy, which
the prosecutor initiated by asking what factors “would increase the potential”
for a person to “have a psychotic episode based on the ingestion of cannabis.”
“[Prosecutor:] And how about the idea that [Vega] at the time could
have been having what’s called concurrent physiological stressors?
“A. Yes, that’s a factor as well.
“Q. What are—what would those physiological stressors be?
“A. There can be many things, like dehydration. . . . Sleep deprivation
is a well known one in many neurological conditions, illnesses, viruses,
immune responses, contaminants contained in cannabis, like mold and
heavy metals, things of that nature, which are well documented in
states where there are labs that actually test cannabis.”
Vega contends there “was no evidence whatsoever” that he was suffering
from some of these conditions, and it was “sheer speculation” for Dr. Ferranti
to insinuate he was more susceptible to psychosis based on the other factors.
Contrary to Vega’s characterization, we do not read Dr. Ferranti’s
testimony to mean that Vega had, in fact, been suffering from every single
one of the conditions she specified. Rather, she was listing the types of
physiological stressors that “can be” factors causing a person to experience
psychosis from consuming marijuana. We are confident the jury would have
23
understood the question and answer as pertaining to general influencing
factors, not those specific to Vega. This evidence bore directly on
Dr. Ferranti’s diagnosis and thus was relevant. An objection would have
been overruled. Indeed, counsel could tactically have decided not to object to
avoid appearing as if he were trying to hide information from the jury.
Accordingly, Vega has failed to demonstrate that counsel’s performance was
objectively unreasonable.
Vega faults counsel for failing to object “to irrelevant and speculative
evidence that people who had a ‘genetic predisposition,’ ‘post-synaptic
irregularities in the brain,’ and ‘metabolic irregularities’ were more
susceptible to cannabis-induced psychosis.” The prosecutor asked
Dr. Ferranti what factors could increase the risk of a person suffering from
cannabis-induced psychotic disorder, and Dr. Ferranti testified that such
factors included genetic predisposition or metabolic irregularities like
dehydration, medical problems, or physical exertion. Vega asserts, “[T]here
was no evidence whatsoever that [Vega] suffered from any of these
conditions.” That’s the same thing his attorney told the jury.
Again, Vega’s appellate counsel reads the testimony as an assertion
that Vega did, in fact, suffer from all the named conditions. But that is a
dubious reading of what was essentially a list of relevant clinical factors
Dr. Ferranti considered in making her diagnosis. Such testimony is not
objectionable.
Vega argues the foregoing testimony “opened the door for the
prosecutor to argue, without evidence, that [Vega]’s use of cannabis was like
a ticking time [sic: bomb] because he had ‘all’ of the risk factors identified by
Dr. Ferranti.” Even if defense counsel should have objected to the
prosecutor’s argument as misstating the evidence, that provides no basis for
arguing he should have objected to the question that elicited Dr. Ferranti’s

24
testimony or should have moved to strike the testimony, which are the only
issues he raises on appeal. Vega’s claims lack merit.
e. Penal Code Requirements for Drug Use History
Vega asserts counsel should have objected to Dr. Ferranti’s testimony
that the Penal Code requires an alienist to “do a detailed history of the
individual’s drug use pattern specifically on the day of the offense.” Vega
acknowledges that section 1027 requires an alienist to assess “ ‘the substance
use history of the defendant on the day of the offense,’ ” but contends “[t]here
is no requirement for a ‘detailed’ history or analysis.” Counsel could have
decided to refrain from objecting as a sound trial tactic. Objecting to the
adjective “detailed” might have struck the jury as nit-picking. Such an issue
could better be dealt with on cross-examination or in closing argument if the
attorney thought it was important.
Prejudice
Vega has also failed to demonstrate that counsel’s not objecting to any
of this evidence prejudiced the defense. Vega failed to show improper
admission of any piece of evidence, and the result of the proceedings would
not have changed even had defense counsel objected. Accordingly, his claim
of ineffective assistance fails. (Strickland, supra, 466 U.S. at p. 694.)
C. The Court’s and Counsel’s Alleged Errors in the Designation
of Experts
Vega claims the court erred in allowing Dr. Ferranti to be designated
an expert, over defense objection, in NGI assessments, as well as in forensic
psychiatry, as opposed to simply an expert in the field of forensic psychology,
as defense experts Drs. Pittavino and Howard had been designated.
The prosecutor successfully designated Maike as an expert in mental
health assessments and Dr. Purcell as an expert in psychiatry and mental
health assessments. The prosecutor offered Dr. Ferranti as an expert in
forensic psychiatry and “not guilty by reason of insanity assessments.”
Defense counsel objected to the latter area because it “ventures too close to

25
the ultimate question in the case.” The trial court overruled Vega’s objection:
“[U]ltimately, the jury will assess her qualifications, and they’ll be instructed
accordingly.” The judge designated Dr. Ferranti as an expert in the areas of
forensic psychiatry and NGI assessments.
A trial court’s designation of a witness as an expert in a particular field
is reviewed for abuse of discretion. (Mann v. Cracchiolo (1985) 38 Cal.3d 18,
39, overruled on other grounds in Perry v. Bakewell Hawthorne, LLC (2017)
2 Cal.5th 536, 543.) “A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education sufficient to
qualify him as an expert on the subject to which his testimony relates.”
(Evid. Code, § 720, subd. (a).) In addition to her general psychiatric
credentials, Dr. Ferranti has a subspecialty and board certification in forensic
psychiatry, which relates to “issues at the intersection of various matters
under the law and mental illness,” including pleas of NGI. She had been
teaching forensic psychiatry at U.C. Davis for more than seven years. Since
2010, she had been on expert panels in four California counties “as a neutral
examiner,” including consulting on NGI cases and rendering an opinion about
whether the statutory requirements were met. She had performed numerous
NGI assessments, although she “[o]ften” was not called to testify after her
assessment was complete. Given this education and experience, the trial
court’s designation of Dr. Ferranti as an expert in NGI assessments was not
an abuse of discretion.
Alternatively, Vega argues his trial counsel’s failure to recall
Drs. Howard and Pittavino for the purpose of redesignating them as experts
in NGI assessments deprived him of his Sixth Amendment right to effective
assistance of counsel. (See Strickland, supra, 466 U.S. at pp. 684–685.) We
think counsel could well have decided not to make a mountain out of a
molehill. The trial court was correct that the jury would ultimately decide
the issue based on each expert’s credentials and the persuasiveness of their

26
opinions, not the designated area of their expertise. We see no professional
error and no prejudice.
D. Alleged Cumulative Error
We have concluded that the various errors alleged by Vega either were
forfeited or have no merit. (See pts. II.A.–II.C., ante.) Even if there were
errors, they were individually harmless, and even considered in combination,
they had no discernable effect on the jury’s decision. Therefore, we reject
without further discussion Vega’s claim of cumulative error.
E. Court’s Failure To Consider Probation Under Section 1170.9
Vega contends the trial court erred by failing to make a finding
concerning his PTSD diagnosis and its relation to his military service and to
consider that as a factor in favor of granting probation, pursuant to section
1170.9. This claim was forfeited by Vega’s failure to object below. (People v.
Scott (1994) 9 Cal.4th 331, 356; People v. Neal (1993) 19 Cal.App.4th 1114,
1117–1124.) And even on the merits, Vega was presumptively ineligible for
probation, and the trial court found no basis to rebut that presumption.
Thus, any error under section 1170.9 did not prejudice Vega.
Section 1170.9, subdivision (a) requires a finding by the sentencing
judge whether Vega “may be suffering from” service-related “substance
abuse” or “mental health problems,” including PTSD. Section 1170.9,
subdivision (b)(1) provides, “If the court concludes that a defendant convicted
of a criminal offense is a person described in subdivision (a), and if the
defendant is otherwise eligible for probation, the court shall consider the
circumstances described in subdivision (a) as a factor in favor of granting
probation.” (Italics added.)
The Attorney General acknowledges the trial court “made no eligibility
determination as to whether [Vega] had a qualifying service-related
condition” as required by section 1170.9, subdivision (a). (People v. Panozo
(2021) 59 Cal.App.5th 825, 835–841; People v. Bruhn (1989) 210 Cal.App.3d

27
1195, 1198–1200.) But unlike the defendants in those cases, Vega was
presumptively ineligible for probation. (§§ 1203, subd. (e)(2), 12022.53,
subd. (g).)
In such circumstances, the trial court was required to first consider
whether the statutory restriction on probation was overcome, then decide
whether to grant probation under section 1170.9. (Cal. Rules of Court,6
rule 4.413(b).) The trial court expressly found no circumstances overcoming
the statutory presumption. The probation report called Vega “highly
inappropriate for probation.” Thus, Vega was not “otherwise eligible for
probation” as required by section 1170.9, subdivision (b). The lack of an
express finding by the trial court under subdivision (a) of that section did not
prejudice Vega.
F. Alleged Ineffective Assistance of Counsel in Sentencing
Vega contends trial counsel was ineffective at sentencing in three ways:
(1) failing to object to dual use of an aggravating factor to impose the upper
term for manslaughter and the upper term for the firearm use enhancement;
(2) failing to argue service-related PTSD as a mandatory mitigating factor
under section 1170.91; and (3) failing to file a sentencing memorandum
despite the presence of mitigating evidence.
The Sentencing Proceedings
The prosecutor filed a memorandum seeking the upper term of 11 years
for voluntary manslaughter and the 10-year upper term for the firearm use
enhancement. The defense did not file a sentencing memorandum.
After hearing numerous impact statements, the trial court heard
argument from the attorneys. Defense counsel acknowledged the case
involved great violence, that Vega had been armed with a weapon, and the
victim was vulnerable. He argued against several other aggravating factors
urged by the prosecution in its sentencing memorandum, however, including

6 References to rules are to the California Rules of Court.
28
that Vega’s actions showed “cruelty and callousness,” that he had taken
advantage of a position of trust, and that his crimes were of increasing
seriousness. Defense counsel also argued factors in mitigation, including that
“the crime was committed because of an unusual circumstance and would be
unlikely to reoccur” (rule 4.423(a)(3)); that Vega had an insignificant prior
record (rule 4.423(b)(1)); and that he suffered from a mental condition
reducing his culpability (rule 4.423(b)(2)). Defense counsel also argued that
“the genesis of the defendant’s mental state was service to his country,
whether that was PTSD or self-medication for that with marijuana.” Defense
counsel requested the lower term for manslaughter and the middle term for
the firearm use enhancement, which would have resulted in an aggregate
prison term of seven years if imposed consecutively. (§§ 193, subd. (a),
12022.5, subd. (a).)
The prosecutor relied on his brief but also noted Vega “didn’t have to go
to the extent that he did” by shooting Augustine eight times total, six times
after he “was already incapacitated or deceased.”
The trial court rejected probation and found the following factors in
aggravation: (1) “the crime involved great violence, great bodily harm and
other acts disclosing a high degree of cruelty, viciousness, and callousness”
(rule 4.421(a)(1)); (2) “the victim was particularly vulnerable”
(rule 4.421(a)(3)); and (3) “the defendant has engaged in violent conduct that
indicates a dangerousness to society” (rule 4.421(b)(1)). The court found the
following factors in mitigation: (1) “the defendant’s prior record is not
significant” (rule 4.423(b)(1)); (2) “the mental condition of the defendant,”
including his PTSD (rule 4.423(b)(2)); and (3) Vega “is a veteran” and “was
honorably discharged”(rule 4.423(c)).
The trial court commented, “[T]he aggravating factors literally jump off
the page.” It considered the “extreme” violence and Augustine’s vulnerability
to be “the most significant factors in determining what is this in the spectrum

29
and in the continuum of manslaughter.” Because he found the aggravating
factors “dominate[d]” the case, the judge imposed the upper term of 11 years
for manslaughter. The judge also imposed the 10-year upper term on the
firearm use enhancement, adopting the same aggravating and mitigating
factors. Thus, Vega was given the maximum term possible.
Counsel’s Failure To Object to the Court’s Alleged Dual Use
of Aggravating Factors
Vega argues, “The trial court’s use of the great violence/great bodily
injury aggravating factor under rule 4.421(a)(1) . . . constitutes improper dual
use under rule 4.420(d) because it constituted an element of voluntary
manslaughter” and was “part and parcel of [Vega]’s firearm use.” First,
Vega’s argument is forfeited for failure to raise the issue in the trial court.
(Scott, supra, 9 Cal.4th at p. 353.) Even if great bodily injury could not be
considered an aggravating factor because death is an element of voluntary
manslaughter (People v. Duran (1982) 130 Cal.App.3d 987, 990–991), it is not
clear a finding of “great violence” suffers from the same defect. Moreover,
“cruelty, viciousness and callousness” transcending bodily harm itself clearly
are not elements of manslaughter. (Id. at p. 991.) The judge found those
factors present in this case based on substantial evidence because Vega
delivered far more shots than were necessary to repel what he believed to be
Augustine’s attack, and he did it all in front of Augustine’s daughter and his
own son. Contrary to Vega’s argument, such factors are sufficient to impose
an upper term. “[T]he existence of a single aggravating circumstance is
legally sufficient to make the defendant eligible for the upper term.” (People
v. Black (2007) 41 Cal.4th 799, 813.) And here the judge found additional
aggravating factors.
Nor are any of the rule 4.421(a)(1) factors (great violence/great bodily
injury or cruelty, viciousness and callousness) elements of a firearm use
enhancement. A firearm use enhancement can be based on a wide range of
conduct from merely displaying a gun in a menacing manner to shooting
30
someone to death, as Vega did. (CALCRIM No. 3146.) Cruelty, viciousness
and callousness are not elements, and a court’s consideration of those factors
does not constitute dual use when imposing the aggravated term for either
voluntary manslaughter or a gun enhancement.
Counsel’s failure to object to the use of the same findings to support an
upper term on the gun use enhancement was not ineffective assistance of
counsel. In People v. Moberly (2009) 176 Cal.App.4th 1191, the defendant
was convicted of voluntary manslaughter with a firearm use enhancement
under section 12022.5, subdivision (a). (Moberly, at p. 1194.) On appeal, the
defendant argued “the trial court erred in relying on a single significant
factor to impose the upper term on both the voluntary manslaughter count
and the gun use enhancement” because it violated “the prohibition against
dual use set forth in People v. Scott (1994) 9 Cal.4th 331.” (Moberly, at
p. 1197.) After noting that such use did not violate the “dual use” rule under
Scott (id. at pp. 1197–1198), Moberly upheld the upper sentence on the
voluntary manslaughter conviction, as well as the upper sentence on the
firearm use enhancement (id. at p. 1199). Moberly concluded “the dual use of
a fact or facts to aggravate both a base term and the sentence on an
enhancement is not prohibited.” (Id. at p. 1198.)
The trial court here explicitly relied on People v. Moberly, supra,
176 Cal.App.4th 1191. The court also found other aggravating factors that
would have justified the upper base term and upper term for the gun use.
Even had defense counsel made the objection Vega suggests, the court’s
comments at sentencing leave no doubt, there was no reasonable probability
of a better result for Vega.

31
 Counsel’s Failure To Argue That PTSD Was a Mandatory
Mitigating Factor and That His Temporary Psychosis Was a
Separate Mitigating Factor
Vega contends, “Trial counsel failed to inform the court that [Vega]’s
PTSD was a mandatory mitigating factor under section 1170.91,
subdivision (a) and that the court should consider his temporary psychosis as
a separate disorder under that provision.” The fact is that counsel argued
PTSD was a mitigating factor but did not point out it was a mandatory
mitigating factor and did not cite section 1170.91. Other facts are that the
probation report recognized his PTSD as a mitigating factor, and the court
expressly took Vega’s service-related PTSD into account as a mitigating
factor. Given these facts, we fail to see how Vega was prejudiced. (Cf.
Panozo, supra, 59 Cal.App.5th at p. 838 [trial court “did not mention his
service-related PTSD”].) Defense counsel no doubt saw little advantage in
arguing that a mitigating factor already explicitly recognized in the probation
report was “mandatory.”
Arguing to the court that Vega’s temporary psychosis at the time of the
crime was a separate disorder reducing his culpability would at best have
added one more mitigating factor, but in Vega’s view, that would have
compelled the trial court to impose the middle terms. But in arriving at a
just sentence, “the weighing process is not quantitative only. One
aggravating factor can outweigh several mitigating circumstances.” (People
v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) Vega’s counting of factors in
mitigation and aggravation does not persuade us that counsel’s performance
was deficient or that he was prejudiced. Accordingly, Vega’s claim of
ineffective assistance of counsel fails.
Counsel’s Failure To File a Sentencing Memorandum
Vega faults trial counsel for “failing to file a sentencing memorandum
at all.” His argument and the authorities he cites suggest his true argument
is that counsel was ineffective for failing to develop and present mitigating

32
evidence, including: (1) failing to present to the court the reports of the three
alienists who concluded Vega was insane, but especially that of Dr. Janice
Nakagawa; (2) Vega’s PTSD diagnosis following his military service;
(3) Vega’s traumatic childhood, including that his parents’ drug use once
resulted in a house fire; (4) that “most of the victim’s family was still
supportive of him and had forgiven him for what he had done”; (5) that he
had only one prior misdemeanor conviction; (6) that Vega’s cannabis use
“ ‘partially excus[ed]’ ” his conduct (rule 4.423(a)(4)); and (7) that Vega was
suffering from a mental condition that “significantly reduced [his] culpability”
(rule 4.423(b)(2)). The trial court heard and considered virtually all of this
information. Counsel’s failure to summarize the evidence in writing did not
affect the sentencing decision.
In particular, Vega faults defense counsel for failing to bring the report
of Dr. Janice Nakagawa to the court’s attention as mitigating evidence.
Dr. Nakagawa was a court-appointed psychologist who evaluated Vega’s
sanity, but who did not testify at trial. Dr. Nakagawa concluded Vega
suffered from psychosis at the time of the offense and opined he did not
understand the nature and quality of his acts and did not know the difference
between right and wrong when he shot Augustine. Perhaps the reason she
was not called by the defense, and the reason her report was not emphasized,
is that Vega, while admitting chronic use of marijuana, told Dr. Nakagawa he
had not smoked any marijuana in the days leading up to the killing.
In any case, Vega highlights the stressors Dr. Nakagawa detailed in
her report—some not identified by the testifying experts—as “crucial
evidence which had been omitted from trial” that “undermined the
prosecution’s theory” of cannabis-induced psychotic disorder. The stressors
were relevant to Vega’s diagnosis and therefore relevant at the sanity phase
of the trial. At sentencing it was too late to argue the issue of sanity versus
insanity, and the stressors he faced at the time of the crime, such as a

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deteriorating relationship with Angel’s brother, his falling out with his
father, and his worry about his mother’s health, were irrelevant at
sentencing. Counsel was well advised not to reargue the sanity issue at
sentencing or to overemphasize Vega’s difficult childhood, knowing the judge
was aware of that evidence.
Ultimately, given the aggravating factors found by the trial judge and
the strength of his opinion that they “dominate” the case, there was no
reasonable probability of a different result if counsel had presented Vega’s
proposed mitigating evidence in writing or argued it more thoroughly in a
sentencing brief. (See Strickland, supra, 466 U.S. at p. 694 [defendant must
show prejudice to establish ineffective assistance of counsel]; People v.
Douglas (1995) 36 Cal.App.4th 1681, 1691–1692 [one aggravating factor may
justify upper term].)
G. Mental Health Diversion Under Section 1001.36
Vega argues he was entitled to mental health diversion under section
1001.36 and the matter should be remanded to allow the trial judge to
consider diversion. Although that section was not enacted until after Vega’s
conviction, the California Supreme Court has held it applies retroactively to
cases not yet final. (People v. Frahs (2020) 9 Cal.5th 618, 631–637.) Vega,
however, cannot avail himself of that ruling.
The court sentenced Vega on December 19, 2017. Effective June 27,
2018, the Legislature created a diversion program for defendants with certain
diagnosed mental disorders, including PTSD. (Former § 1001.36, subds. (a),
(b)(1), Stats. 2018, ch. 34, § 24 (Assem. Bill No. 1810).) That program allows
qualifying defendants to be treated in a community mental health program
for up to two years, after which, if they perform “satisfactorily in diversion,
. . . the court shall dismiss the defendant’s criminal charges that were the
subject of the criminal proceedings at the time of the initial diversion.” (Id.,
subd. (e).) Effective January 1, 2019, however, the Legislature amended

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section 1001.36 to exclude defendants charged with, among other things,
murder or voluntary manslaughter. (Stats. 2018, ch. 1005, § 1; § 1001.36,
subd. (b)(2)(A).) Vega nevertheless contends he is entitled to the benefit of
the original version of section 1001.36 in effect from June 27, 2018 to
December 31, 2018, because application of the restrictive amendments
“would violate basic principles against retroactivity and state and federal
constitutional bars as to ex post facto legislation.”
The same argument was rejected as a “feat of argumentative
gymnastics” in People v. McShane (2019) 36 Cal.App.5th 245, where the
Fourth District, Division Two, concluded “[t]he fact . . . that he was briefly
eligible for pretrial diversion under Penal Code section 1001.36, as originally
enacted, is irrelevant to the retroactivity analysis.” (Id. at pp. 259–260; see
People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1050–1051, 1053–1054.) We
have no cause to disagree with McShane and Cawkwell.
H. Requested Remand for Resentencing Under Senate Bill No. 620
When Vega was sentenced, the trial court had no discretion to strike a
firearm use enhancement. (Former § 12022.5, subd. (c), Stats. 2011, ch. 39,
§ 60, effective June 30, 2011, operative Jan. 1, 2012.) On January 1, 2018,
after sentencing in this case, amendments in Senate Bill No. 620 to section
12022.5, subdivision (c) took effect, which gave the trial courts discretion to
“strike or dismiss” “in the interest of justice” “an enhancement otherwise
required to be imposed” by section 12022.5. (Stats. 2017, ch. 682, § 1,
subd. (c); see § 1385.) Senate Bill No. 620 is retroactive to all cases not final
on appeal at its effective date. (E.g., People v. Allison (2019) 39 Cal.App.5th
688, 704–706.)
Vega contends his case should be remanded to allow the trial court to
exercise its newly granted discretion. But remand is not warranted here for
this reason because the trial court, when it sentenced Vega, acknowledged
Senate Bill No. 620 would soon come into effect and expressly stated it would

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not strike the firearm enhancement even if it had the discretion to do so. A
remand under Senate Bill No. 620 would be an idle act and should be
avoided. (People v. Allison, supra, 39 Cal.App.5th at pp. 705–706; People v.
McDaniels (2018) 22 Cal.App.5th 420, 425.)
I. Requested Remand for Resentencing Under Senate Bill No. 567
By way of supplemental brief, Vega brings to our attention two recent
legislative changes that bear upon triad sentencing discretion, effective
January 1, 2022. Both of these new amendments constrain the latitude of
sentencing courts to choose from among low, middle, and upper terms in a
sentencing triad. First, Senate Bill No. 567 creates a new presumption that
the chosen term shall not exceed the middle term, unless the facts supporting
the aggravating circumstances are (1) established by the defendant’s
stipulation to them, (2) proven to a jury (or to a court, if jury is waived)
beyond a reasonable doubt, or (3) based on prior convictions evidenced by a
certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3(c) (Sen. Bill
No. 567), adding § 1170, subd. (b)(1)–(3), by amendment.) Senate Bill No. 567
also creates a new presumptive mandate for the low term where the
defendant’s psychological, physical, or childhood trauma was a contributing
factor in the commission of the offense. (Stats. 2021, ch. 731, §§ 1.3, 3(c),
adding § 1170, subd. (b)(6), by amendment.) Notwithstanding any mandate
under Senate Bill No. 567 to choose a term not exceeding the middle term,
section 1170, subdivision (b)(6) will dictate choice of the low term “unless the
court finds that the aggravating circumstances outweigh the mitigating
circumstances [so] that imposition of the lower term would be contrary to the
interests of justice.” (§ 1170, subd. (b)(6).) But even if the low term is not
chosen, Senate Bill No. 567 requires imposition of the middle term, except in
the circumstances spelled out in section 1170, subdivision (b)(1)–(3). In any
case, the court is required to “set forth on the record the facts and reasons for
choosing the sentence imposed.” (§ 1170, subd. (b)(5).)

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 Vega argues that these recently enacted statutory revisions are
retroactive (In re Estrada (1965) 63 Cal.2d 740, 745–748); that both new
enactments qualify as ameliorative changes to the sentencing laws governing
his convictions (People v. Conley (2016) 63 Cal.4th 646, 656); and that, as a
result, they must be applied retroactively in this case under Estrada (People
v. Superior Court (Lara) (2018) 4 Cal.5th 299). The Attorney General agrees
and does not oppose a remand for consideration of this new legislation. In
accordance with the Attorney General’s concession, we shall order conditional
vacatur of Vega’s sentence and leave it to the trial court on remand to
determine what effect the new legislation may have on Vega’s aggregate
sentence in a resentencing proceeding.
III. DISPOSITION
The sentence imposed on Vega is conditionally vacated, and on remand
the court shall resentence him in accordance with newly enacted section
1170, subdivisions (b)(1)–(3) and (b)(6). The judgment is otherwise affirmed.

STREETER, Acting P. J.

WE CONCUR:

BROWN, J.
ROSS, J.*

*Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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