People v. Gallardo CA5

Filed 5/18/22 P. v. Gallardo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F079072
Plaintiff and Respondent,
(Super. Ct. No. F16900466)
v.

ERIC GALLARDO, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Law Offices of Beles & Beles, Robert J. Beles, Paul McCarthy and Manisha
Daryani for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M.
Vasquez, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
A jury convicted appellant Eric Gallardo of second degree murder (Pen. Code,
§ 187, subd. (a); count 1)1 for the shooting death of Anthony Leon Jones.2 The jury
found true that (1) appellant intentionally discharged a firearm that proximately caused
great bodily injury or death (§ 12022.53, subd. (d)) and (2) appellant personally used a
firearm (§ 12022.5, subd. (a)). Appellant received a prison sentence of 15 years to life
for the second degree murder, along with a consecutive 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d).3
Appellant contends that his conviction and the jury’s true findings must be
reversed. He raises a series of claims regarding prosecutorial misconduct based on
comments made during closing arguments. He also asserts that the trial court erred when
it directed the jury, which became deadlocked, to continue its deliberations. We reject
these arguments. However, we agree with appellant’s supplemental claim that the trial
court must be given an opportunity to exercise its new sentencing discretion regarding the
firearm enhancement which the jury found true under section 12022.53, subdivision (d).
(See People v. Tirado (2022) 12 Cal.5th 688, 700 [under certain circumstances, a trial
court may impose a sentencing enhancement under § 12022.53, subd. (b) or (c) instead of
under subd. (d)] (Tirado).) We conditionally reverse appellant’s sentence but otherwise
affirm.
BACKGROUND
It was undisputed at trial that appellant shot and killed Jones.4 The fatal incident
was captured on surveillance video and played for the jury. The prosecutor argued for

1 All future statutory references are to the Penal Code unless otherwise noted.
2 The jury found appellant not guilty for first degree murder.
3 The court imposed 10 years in state prison for the firearm enhancement under
section 12022.5, subdivision (a). This sentence was stayed.
4 Jones was known as “Chicken.”

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first degree premeditated murder. The defense asserted that appellant did not commit
murder. According to the defense, appellant acted either in self-defense, or under a heat
of passion, or in imperfect self-defense. The jury rejected the competing positions and
found appellant guilty of second degree murder.5
I. The Murder.
Appellant did not know Jones, and he had never seen him before. Appellant shot
Jones to death on January 23, 2016. This shooting occurred near the entrance to a small
store located in the County and City of Fresno.
As seen in the video, appellant and Jones briefly exchanged blows just prior to the
fatal shots. It was appellant who initiated the brief physical encounter. Appellant
punched Jones, who appeared to either punch back or attempt to deflect appellant’s blow.
After being struck by appellant, Jones stumbled towards a wall but he remained
standing.6 At the same time, appellant stepped back several paces and he retrieved a
handgun which he had concealed under his shirt. Appellant, who was standing just
outside the open front doors to the store, fired multiple shots at Jones, who was standing
just inside the store. Appellant fired just as Jones took a step towards him.7 Jones never
displayed a weapon, and he fell to the ground inside the store. Eyewitnesses saw
appellant run away, and he got into a car and sped off.

5 During deliberations, the jury announced it found appellant not guilty of first
degree murder. However, the jury twice informed the trial court that it was deadlocked
on the remining underlying charges. We address this deadlock in greater detail later in
this opinion when we address appellant’s claim that the trial court erred in directing the
jury the second time to continue its deliberations.
6 Appellant is about six feet three inches tall, and he weighed about 240 or 250
pounds at the time of trial. Jones was five feet eight and a half-inches tall. He weighed
213 pounds at the time of his autopsy. Jones was 38 years old. At trial, witnesses
described Jones as “fit” and “pretty stocky.”
7 Based on the angle of the video, it is impossible to see Jones’s hands as appellant
initially fires.

3.
 Before appellant fired, eyewitnesses heard him yelling at Jones. According to one
eyewitness, appellant had asked Jones why he had touched his daughter, or why he had
talked to his daughter. Another eyewitness heard appellant say, “come on, mother
fucker.” Appellant pulled out a gun and began to shoot.
II. The Forensic Evidence
Emergency personnel responded and Jones was transported to a hospital. He died
a short time later.
Law enforcement located five spent shell casings around the area where appellant
had fired his handgun.8 Two expended bullets were recovered inside the store. Law
enforcement never found a weapon near Jones or anywhere inside the store.9
An autopsy revealed that appellant’s shots struck Jones three times. The cause of
death was “perforation of the left lobe of the liver and aorta due to [a] gunshot wound to
the abdomen.”10

8 At trial, a detective was shown the video of the shooting and he agreed that the
location of the recovered five expended casings were consistent with where the shooter
was seen firing and moving during the shooting.
9 One responding police officer, Eric Ovalle, believed at trial that he had been told a
handgun had been “located by the counter where the clerk was.” Ovalle believed it was
another officer who told him this but he could not recall. Ovalle testified at trial that he
believed there was a gun on the store’s counter. Ovalle admitted at trial, however, that he
did not indicate in his report that a firearm had been found at the scene. On cross-
examination, Ovalle agreed that he had an independent recollection of a firearm on the
counter despite that not being in his police report. This court has reviewed the video
depicting the shooting. At no time is a firearm seen on the store’s counter just prior to or
just after this shooting.
10 At the time of his autopsy, Jones had alcohol in his blood at 0.16 milligrams
percent. Traces of phencyclidine (PCP) and marijuana were detected. The medical
doctor who performed the autopsy did not believe that the level of marijuana was
significant. The doctor agreed on trial cross-examination that PCP can make someone
aggressive.

4.
III. Just Prior to this Shooting, the Victim had Interacted with Appellant’s Wife.
The jury learned that this fatal shooting stemmed from a negative interaction
between Jones and appellant’s wife, Rosalinda. The negative interaction between Jones
and Rosalinda occurred earlier that same day.
According to Rosalinda, she had been visiting her relatives at a residence that was
down the street from the store in question. She arrived there sometime around 4:00 p.m.
That same afternoon, Jones came into the residence.11 According to Rosalinda, Jones
had “reeked of alcohol.” He sat right next to her on a couch.
Rosalinda told the jury that Jones acted inappropriately with her. Her daughter,
who was about 18 months old at the time, was fussy and crying. The baby was resting on
a reclining chair nearby. At some point, Jones pushed Rosalinda on her shoulder, telling
her to “get” the baby, who continued to cry. About 30 seconds later, Jones “shoved”
Rosalinda again harder with his elbow. He again told Rosalinda to get the baby. She told
the jury that Jones had sounded “more serious this time.” She believed that Jones was
getting more irritated because the baby was crying.
Rosalinda testified that, at some point, Jones “kicked the couch” on which the
baby was resting. This startled the baby, who began to cry more. Rosalinda stood up.
When she did, Jones pinched her butt. She told the jury that he did so “in the center” of
her butt towards her “butthole.” She said it felt like he had touched her anus.12
Rosalinda testified that she “got scared” and she was “startled.” She explained
that she was scared because Jones had “violated” her and he had scared her daughter.
She did not know “what else he was going to do.”

11 Jones was friends with Rosalinda’s mother and one of Rosalinda’s aunts.
12 Rosalinda was wearing a T-shirt and “yoga pants” when this occurred.

5.
 Jones went into the backyard for a short time. Rosalinda told her aunt what had
happened. She said that somebody had better talk to Jones “before I call [appellant] over
here.” At trial, she agreed that appellant had protected her throughout her entire life.13
Rosalinda’s aunt confronted Jones about what had happened. The aunt asked
Jones to leave, but he remained for about 10 minutes. According to Rosalinda, Jones
kept staring at her. She believed he was staring at her breasts. This made her feel
uncomfortable and afraid. She testified that she got “like an ugly feeling” in her stomach
“like if he was going to attack me.” She described Jones as “pretty stocky.” At some
point, Rosalinda told Jones that she was calling appellant. He told her to go ahead and
call whomever she wanted.
IV. Rosalinda Called Appellant and Told Him About Jones’s Behavior.
Rosalinda called appellant. She was crying. She testified that she was scared and
was “kind of like hyperventilating, you know, like I couldn’t control my emotions.”
According to Rosalinda, she told appellant that she had been pinched and grabbed on her
ass. She told him it was a friend of her aunt and mom who did this. The man was known
as “Chicken,” but she did not know him. She said that Chicken had also kicked at their
youngest daughter. She asked appellant to come over, saying she needed his help.
Appellant asked her how Chicken had touched her and she said, “he touched me on my
butt, like he pinched me on my butt.” She told him, “I just don’t feel comfortable” and
“can you come over.” She told the jury that she called appellant so he could protect her.

13 Rosalinda told the jury that she had been in foster care most of her childhood. She
had always relied on appellant to protect her. She started a romantic relationship with
appellant when she was 13 years old and he was 14 years old. She was in foster care at
the time. They had their first child together three years later. Appellant was 23 years old
when this murder occurred.

6.
 Before appellant arrived, Jones came up to Rosalinda outside the residence and he
tried to hug her. She backed away from him. According to Rosalinda, Jones shrugged
his shoulders and was like, “Well, fuck you then.” Jones walked down the street.
One of Rosalinda’s aunts testified at trial that she and her sisters tried to talk to
Jones. She knew him, but he did not want to talk to her. The aunt asked Jones to
apologize “because it’s foul what you did.” According to the aunt, Jones did not
apologize but instead “attacked” or “grabbed” Rosalinda again. The aunt heard Jones
say, “Hey, I’m sorry, I’ve been drinking.”
V. Appellant Arrives and Rosalinda Tells him Where Jones Went.
Before appellant arrived, Rosalinda received a text message from appellant. He
wrote, “ ‘I’m—I’m just going to beat him up.’ ” Appellant arrived about 20 minutes after
Rosalinda had called him.14 She met him outside the house. She said a lot of family
members were also outside, and it was very emotional. Everybody was talking about
everything that had happened. Rosalinda testified that she was “hysterical” and crying.
Appellant asked her where Chicken was and she told him that he was down at the store.
Appellant began walking “fast” down the street towards the store. He was
wearing shoes that he loved, but he walked through “a big puddle of water.” This
surprised Rosalinda and it appeared “weird” to her because he always took care of those
shoes. She then heard gunshots. She saw appellant get into his vehicle and “take off.”
Rosalinda agreed at trial that, when appellant had arrived, she had pointed out the
direction where Jones was and she had assumed appellant was going to protect her. She
told the jury it was not okay for somebody to scare her daughter and then touch her like
that. She said, “I would assume that anybody would feel threatened.” She told the jury

14 Appellant was at a hospital, or just leaving it, when Rosalinda called him. The
prosecution established that it would take about 20 minutes for a person to drive from
that hospital to the residence where appellant met Rosalinda just before this shooting
occurred.

7.
that she knew appellant had firearms. However, she claimed that she had not known that
he had been armed when he confronted Jones.
VI. Appellant’s Statements to Rosalinda after this Shooting.
Before law enforcement located appellant and arrested him, Rosalinda talked to
him and he told her what had happened. According to Rosalinda, appellant said he got to
the store and he had asked, “Who’s Chicken?” Jones had started laughing and he told
appellant, “I’ll get to you in a minute.” Appellant told Rosalinda that he got mad and
they started fighting. Appellant told Rosalinda that he thought Jones had hit him on his
face with a bottle. Appellant said he had “blacked out” and “just started shooting.”
Appellant admitted to Rosalinda that he had shot Jones.
VII. Appellant’s Statements to Detectives.
On January 25, 2016, law enforcement located appellant in the Stockton area. He
was taken into custody without incident. Late that night, two detectives interviewed him.
The interview was recorded with both audio and video. The recorded interview was
played for the jury.
Appellant stated that he did not confront Jones with an intent to kill. Instead, he
only wanted to fight. According to appellant, he brought along a firearm because he did
not know Jones and he was concerned that Jones might be armed.15 Appellant said he
shot Jones because he became “scared” after the initial exchange of blows. Appellant
said that Jones was big. Appellant thought Jones might have hit him with a bottle.
Appellant also stated he thought Jones had been “reaching” for something. Appellant
claimed he had “blacked out” just before he began shooting. Appellant said he shot
because “I got scared.” When asked what Jones had done to make him scared, appellant
simply responded that he “blacked out.” He later told the detectives that he has a quick

15 During his interview with the detectives, appellant denied knowing the location of
the firearm he used to kill Jones.

8.
temper. “It takes a lot to get me mad but once I’m mad I lose it. I black out. I’ve been
like that ever since I was little.” He said that other occasions had occurred where he has
blacked out and he could not remember what he did.
Appellant was reluctant to identify Rosalinda as the person who had called him.
Appellant initially said that “Tia” had called him, telling him that someone had been
touching his kids and had “grabbed her and pushed her and he was feelin’ on her.”
Appellant told the detectives that he did not get “the whole story” but he just knew that
his “kids were in danger and I had to get there.”
Later, appellant made statements from which it can be inferred he was describing
Rosalinda as the person who had informed him about Jones’s actions. He told detectives
that she had sounded “hurt” and “scared.” A little later appellant stated it was his
understanding that his baby had been crying and Jones “kept telling her” to get the baby.
Jones had approached “her” and “I guess grabbed” her. According to appellant,
Rosalinda had told Tia that Jones kept “disrespecting” her, and he “did it again.”
Appellant agreed with a detective who summarized that Jones had “grabbed”
Rosalinda’s “ass.” Appellant clarified that “the aunt” did not see the incident, but
Rosalinda had told everyone that Jones was making her “so uncomfortable.” Jones was
much older and kept doing “stuff” that she did not want. Appellant agreed that he
thought Jones had touched Rosalinda in an “inappropriate way.” It was appellant’s
understanding that Jones had “grabbed” her “on the side” but he did not know if it was
done for sexual gratification. Later, appellant said he thought Jones had been “fondling
my child.”
The detectives reviewed the surveillance video with appellant, who stated that he
remembered telling Jones that he could “never again” touch his daughter. Appellant
agreed that Jones had hit him in his mouth. Appellant initially thought Jones might have
hit him with a bottle because it did not feel like a punch. After reviewing the footage,
appellant expressed surprise that Jones had hit him with a fist. Appellant stated that,

9.
from his perspective, he had not known what was on the store’s counter or what Jones
might have grabbed. Appellant, who was wearing braces when this fight occurred,
realized that his braces could have caused it to feel more than a punch.16
Appellant told the detectives that he had not wanted to “go over there” after
Rosalinda had called him. He denied that he had been afraid, and stated he had not
known “that was gonna [sic] happen.” He agreed he had only intended to fight Jones. A
short time later, appellant said he “made a big mistake.” Even later, appellant said that
Jones “didn’t deserve” what had happened. Appellant reiterated that he had “blacked
out.”
DISCUSSION
I. Appellant Has Forfeited His Claims of Prosecutorial Misconduct; In Any
Event, No Misconduct Occurred and/or any Error Was Harmless.
Appellant raises a series of claims alleging prosecutorial misconduct based on
various statements the prosecutor made during closing arguments. He seeks reversal of
his conviction and the true findings.
A. Background.
Appellant’s claim of prosecutorial misconduct is based on three separate concerns.
First, he contends the prosecutor misstated the law regarding heat of passion. Second, he
asserts the prosecutor improperly vouched for her own credibility. Finally, he maintains
the prosecutor improperly disparaged defense counsel. We summarize the prosecutor’s
disputed comments.

16 In the video, it appears that Jones raised his left arm and struck appellant’s mouth
as appellant punched Jones. During the interview, the detectives saw that appellant’s
tongue had been cut. A photograph of appellant’s tongue was taken and it was shown to
the jury. At trial, Rosalinda testified that she met appellant after the fatal incident and he
showed her his tongue. She remembered the wound being “way bigger” than depicted in
the photograph.

10.
 1. The prosecutor’s disputed comments regarding heat of passion.
During her closing arguments, the prosecutor urged the jury to find appellant
guilty of first degree premeditated murder. She contended that appellant purposefully
armed himself with a loaded weapon to bring to this fight “if he needed it.” She argued
that he quickly reached a “cold and calculated” decision to kill.
The prosecutor argued to the jury that the facts did not establish a heat of passion.
We highlight in italics the disputed comments the prosecutor made regarding heat of
passion. She asserted that a heat of passion defense “boils down to” whether or not
appellant “was so out of it he couldn’t control himself.” She noted that the provoking
event was appellant’s conversation with Rosalinda. The prosecutor questioned whether it
was sufficient that Rosalinda “had been groped in the buttock” and that someone was
“kicking at” appellant’s child. “Is that enough to have caused a reasonable person to be
so out of their mind that they would then kill someone?”
A short time later, the prosecutor asked the jury if it was reasonable that appellant
had fought with Jones and shot him “because he was so overcome with emotion and
feelings that he just—he’s not responsible for what happened next because he wasn’t in
his right mind. Would a reasonable person act like that?”
The prosecutor argued it took appellant at least 20 minutes to drive across town to
meet Rosalinda after she had called him, and he shot Jones minutes later. According to
the prosecutor, appellant had time to “take a breath, to turn in the opposite direction, to
call the police if he really thinks that something was going down, to do something other
than what he did, but look at what he did. He’s not so out of his head with emotion that
he’s not thinking through his plan. He has—he goes and makes sure he has a firearm,
makes sure it’s loaded, and he gets himself all the way down there. He thought this
through. And the fact that he was able to take that kind of time to think about what he
was going to do next, that shows you this thought process and deliberation that he’s not
so out of his mind at all. [¶] He’s making decisions. They may not be the decisions that

11.
you and I would make, but he’s making decisions, nonetheless, which shows this thought
process and deliberation, which means that he wasn’t so overcome with emotion.”
The prosecutor reminded the jurors that appellant had expressed to the detectives
that he had not wanted to drive over to meet Rosalinda after she had called him, but he
went anyway. According to the prosecutor, this showed that “he’s not out of his mind in
this uncontrollable rage or emotion. He’s thinking this through.”
Finally, in her rebuttal argument, the prosecutor stated that “[h]eat of passion is, I
was so out of my mind that I didn’t know what I was doing.”
2. The prosecutor’s disputed comments regarding her credibility
and the defense.
During rebuttal argument, the prosecutor complained that defense counsel had
“routinely” referred to her as “the Government.” The prosecutor reminded the jurors that
the court had informed them two weeks before that she was “the People” or “the D.A’s
office” or she was referred to by name. According to the prosecutor, the defense’s
reference to her as the government was a “common trick” by the defense to “evoke some
emotion in you” about the prosecution.
A short time later during rebuttal, the prosecutor responded to a defense argument
that she had failed to call logical civilian witnesses. She assured the jury that, if she had
done something improper or wrong, “you would have heard from the judge.”
Immediately thereafter the prosecutor characterized defense counsel’s argument as
“another trick. It’s dishonest and it’s certainly not straightforward.”
B. Standard of review.
The Fourteenth Amendment of the United States Constitution is violated if a
prosecutor’s misconduct infects a trial with such unfairness that the conviction is a denial
of due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) In other words, the
misconduct must be of sufficient significance as to deny the defendant’s right to a fair
trial. (Ibid.) California law is violated if a prosecutor uses deceptive or reprehensible

12.
methods to attempt to persuade either the court or the jury. (Id. at pp. 1009–1010.)
However, a defendant’s conviction will not be reversed for prosecutorial misconduct
unless it is reasonably probable that a result more favorable to the defendant would have
been reached without the misconduct. (Id. at p. 1010.)
C. Analysis.
Respondent concedes that, at one particular point during closing argument, the
prosecutor misstated the law regarding heat of passion. Respondent, however, argues
that reversal is not required due to forfeiture and a lack of prejudice. Respondent
contends that no other misconduct occurred.
We agree with respondent and we reject appellant’s arguments. We determine
that appellant has forfeited each of these claims. In the alternative, we conclude that any
misstatement of law was harmless, and no other misconduct occurred. We find any other
presumed error to be harmless.
1. Appellant’s claims are forfeited.
As a rule, a claim of prosecutorial misconduct is forfeited if the defense fails to
object and request an admonition to cure any harm. (People v. Centeno (2014) 60 Cal.4th
659, 674; People v. Tully, supra, 54 Cal.4th at p. 1010.) Our Supreme Court makes it
clear that a claim of prosecutorial misconduct will not be deemed forfeited “only when
‘an objection would have been futile or an admonition ineffective.’ [Citation.]” (People
v. Thomas (2012) 54 Cal.4th 908, 937.) As the high court has stated, “we see no reason
to carve out an exception to the general rule that a defendant must object to misconduct at
trial to raise the claim on appeal. [Citation.]” (People v. Cleveland (2004) 32 Cal.4th
704, 762 [addressing claim that the prosecutor improperly suggested the responsibility for
a death verdict rested elsewhere].)
The parties agree that appellant did not object below to any of the purported
prosecutorial misconduct. This record does not support a finding that the defense was

13.
excused from the obligation to raise an objection to preserve this claim for appeal. “The
trial atmosphere was not poisonous, defense counsel did not object at all, and the record
fails to suggest that any objections would have been futile.” (People v. Riel (2000) 22
Cal.4th 1153, 1213; accord, People v. Hill (1998) 17 Cal.4th 800, 820–821.) Appellant
“fails to show how objecting would have been futile under the circumstances of this trial.
Consequently, his claims are forfeited.” (People v. Williams (2013) 56 Cal.4th 630, 672.)
To overcome forfeiture, appellant raises a claim of ineffective assistance of
counsel.17 This is without merit. Our Supreme Court holds that a failure to object to
argument seldom establishes counsel’s incompetence. (People v. Ghent (1987) 43 Cal.3d
739, 772.) Defense counsel “may well have tactically assumed that an objection or
request for admonition would simply draw closer attention to the prosecutor’s isolated
comments.” (Id. at p. 773.)
In any event, we determine below that any error was harmless stemming from the
prosecutor’s various disputed comments. As such, because appellant cannot demonstrate
prejudice, any failure by trial counsel to object did not constitute ineffective assistance.
(See People v. Lucas (1995) 12 Cal.4th 415, 436 [defendant bears burden to establish
both deficient performance and resulting prejudice in a claim of ineffective assistance of
counsel].) For these reasons, the various claims of prosecutorial misconduct are
forfeited.
2. Prejudice did not occur from the prosecutor’s arguments
regarding heat of passion.
Although we accept respondent’s concession that the prosecutor made a
misstatement of law during closing argument, we also agree that none of the prosecutor’s

17 In case No. F081899, appellant has filed a companion petition for writ of habeas
corpus. He primarily contends his trial counsel was ineffective in failing to object to the
instances of purported misconduct during closing argument. He has filed the writ “to
allow for expansion of the record through an evidentiary hearing.”

14.
disputed comments regarding heat of passion resulted in prejudice. Heat of passion is not
a true defense to murder. Instead, it is the basis for the crime of voluntary manslaughter.
(People v. Barton (1995) 12 Cal.4th 186, 199.) “A killing that would otherwise be
murder is reduced to voluntary manslaughter if the defendant killed someone because of
a sudden quarrel or in the heat of passion.” (CALCRIM No. 570; see also § 192,
subd. (a).)
Three elements are required to establish voluntary manslaughter based on a heat of
passion: (1) the defendant was provoked; (2) as a result of the provocation, the defendant
“acted rashly and under the influence of intense emotion that obscured (his/her) reasoning
or judgment;” and (3) the provocation would have caused a person of average disposition
to act rashly and without due deliberation; in other words, “from passion rather than from
judgment.” (CALCRIM No. 570.)
In People v. Beltran (2013) 56 Cal.4th 935, our Supreme Court rejected an
argument that “provocation must be of a kind that would cause an ordinary person of
average disposition to kill.” (Id. at p. 938.) Instead, heat of passion “is a state of mind
caused by legally sufficient provocation that causes a person to act, not out of rational
thought but out of unconsidered reaction to the provocation. While some measure of
thought is required to form either an intent to kill or a conscious disregard for human life,
a person who acts without reflection in response to adequate provocation does not act
with malice.” (Id. at p. 942.)
In this matter, respondent concedes that, at one point, the prosecutor equated heat
of passion as whether provocation would have moved a reasonable person to kill. Based
on People v. Beltran, respondent agrees that the prosecutor misstated the law in this
regard. We accept respondent’s concession that this was a misstatement of law.
The parties, however, dispute whether or not the prosecutor improperly equated
heat of passion with legal insanity. Appellant contends that the prosecutor’s comments
informed the jury that appellant had to be “legally insane” for voluntary manslaughter to

15.
apply. In contrast, respondent argues that the prosecutor never used the word “insanity”
and the jury was not instructed on the legal standard for insanity.
We need not resolve the parties’ dispute regarding whether or not the prosecutor
equated a heat of passion with legal insanity. We also need not analyze whether or not
the prosecutor’s other comments represented a misstatement of law. Instead, we
determine that any presumed error was harmless.
To establish prejudice, appellant notes that the jury was deadlocked regarding
whether he was guilty of second degree murder or manslaughter. He argues the deadlock
“must have been over the issue of provocation and heat of passion.”18 He contends that
the evidence was “very strong” to establish provocation.19 Appellant asserts that the jury
would not have known to examine the differences between the trial court’s instructions
and the prosecutor’s comments regarding provocation. He contends reversal is required.
We disagree that prejudice occurred. Our Supreme Court has noted that
arguments from counsel are generally considered to carry less weight with a jury than
instructions from the trial court. (People v. Centeno, supra, 60 Cal.4th at p. 676.) We are
to presume that a jury will treat a prosecutor’s comments as words spoken by an advocate
in an attempt to persuade while the court’s instructions are viewed as binding statements
of law. (Ibid; accord, People v. Seaton (2001) 26 Cal.4th 598, 646.)
In this matter, the trial court instructed the jury to follow its legal instructions to
the extent the attorneys’ comments were in conflict. The trial court properly instructed

18 The deliberating jury asked the trial court for the definition of “conscious”
appearing in CALCRIM No. 520. This is part of the instruction explaining when a
defendant has implied malice to commit murder. In relevant part, the jury was instructed
that appellant must have “deliberately acted with conscious disregard for human life.”
19 In arguing that the evidence was strong to establish a heat of passion, appellant
concedes that the evidence supporting a theory of imperfect self-defense was “very
weak.” He notes that an eyewitness saw him come out of the store and yell, “come on,
mother fucker” before firing.

16.
the jury regarding the elements necessary to find appellant guilty of voluntary
manslaughter. Indeed, appellant concedes that the court “correctly described” the type of
provocation required to reduce murder to manslaughter pursuant to a heat of passion.
The court informed the jurors that voluntary manslaughter was appropriate if
(1) appellant was provoked and (2) as a result of the provocation he “acted rashly and
under the influence of intense emotion that obscured his reasoning or judgment;” and
(3) the provocation “would have caused a person of average disposition to act rashly and
without due deliberation, that is, from passion rather than from judgment.”
We presume that the jury followed the court’s instructions. (People v.
Boyette (2002) 29 Cal.4th 381, 436.) Because the jury received proper instructions from
the trial court, which we presume were followed, any misstatements of law from the
prosecutor were rendered harmless. (See People v. Pearson (2013) 56 Cal.4th 393, 440
[finding harmless a prosecutor’s misstatement of law because the jury was presumed to
have relied on the proper instructions from the court].)
Moreover, any presumed error is harmless because the evidence of appellant’s
intent to commit murder was overwhelming. The video showed him initiating a fist fight
with Jones. After Jones fell against a wall inside the store, appellant reached for a
handgun which he had concealed under his shirt. Appellant fired multiple times as Jones
took a step towards him. Jones never displayed a weapon and law enforcement never
recovered a weapon in the market. The evidence conclusively established appellant’s
express malice to commit murder.
In addition, although the jury was deadlocked for a time, this record does not
reasonably support a finding of voluntary manslaughter based on a heat of passion. “The
heat of passion requirement for manslaughter has both an objective and subjective
component.” (People v. Steele (2002) 27 Cal.4th 1230, 1252.) The defendant must
actually kill in the heat of passion, and the circumstances giving rise to that passion must
be such that they would arouse passion in the mind of a reasonable person. (Ibid.)

17.
However, the passion aroused cannot be based on revenge. (People v. Breverman (1998)
19 Cal.4th 142, 163; People v. Burnett (1993) 12 Cal.App.4th 469, 478; People v.
Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [“desire for revenge does not qualify as a
passion that will reduce a killing to manslaughter”].)
Here, the circumstances overwhelmingly demonstrate that appellant confronted
Jones to either protect his family or to get revenge. The prosecution established that it
took appellant about 20 minutes to drive to meet Rosalinda after she called him. On his
way to meet Rosalinda, appellant texted that he was going to “beat” Jones. Once
appellant arrived, he walked down the street to the store.
During his interview with the detectives, appellant emphasized that he did not
confront Jones with an intent to kill. Instead, he only wanted to fight Jones. According
to appellant, he brought along the firearm because he did not know Jones and he was
concerned that Jones might be armed. Appellant said he shot Jones because he became
“scared” after the initial exchange of blows. Appellant thought Jones might have hit him
with a bottle. Appellant also stated he thought Jones had been “reaching” for something.
Appellant claimed he “blacked out” at that point.
The events surrounding Jones’s killing do not reflect the temporal connection
between provocation and appellant’s act of shooting that commonly negates malice.
Instead, there was time for appellant’s emotions to cool and it is apparent that he
exercised judgment regarding when and how he would confront Jones. Indeed, appellant
did not approach Jones with his handgun drawn and appellant did not shoot him right
away. The evidence does not reasonably establish that appellant killed Jones under a
subjective heat of passion. (See People v. Steele, supra, 27 Cal.4th at p. 1252 [setting
forth requirement for subjective component of heat of passion].) In other words, the
record does not reasonably demonstrate that appellant acted without deliberation or
judgment, and simply reacted from emotion due to the provocation. (See People v.
Beltran, supra, 56 Cal.4th at p. 950 [setting forth this standard].)

18.
 Further, the provocation that occurred in this matter would not have caused a
person of average disposition to act rashly and without due deliberation. Rosalinda
testified she told appellant that Jones had pinched and grabbed her butt. She also told
appellant that Jones had kicked at their youngest daughter. Rosalinda was crying and
scared during the phone call. She asked appellant to come over, saying she needed his
help. While Rosalinda’s phone call would have caused a person of average disposition to
become concerned and possibly even angry, such information would not have caused a
person of average disposition to act rashly and under the influence of intense emotion that
obscured reasoning or judgment. (CALCRIM No. 570.) This record does not support the
objective prong necessary to establish a heat of passion.20
Finally, the prosecutor’s disputed remarks regarding heat of passion were
relatively brief and isolated. In comparison, the prosecutor made other arguments that
demonstrated a heat of passion was not appropriate. She correctly informed the jury that
heat of passion required a defendant to be provoked, and that provocation had to cause a
person of average disposition to act “rashly and under the influence of intense emotion
that obscured his reasoning or judgment.” The prosecutor emphasized that, although
appellant had intended to fight Jones, appellant had acted with purpose and deliberation
because he had decided to bring a loaded gun with him. She asserted that appellant had
time on his drive over to reconsider his actions, but he made decisions along the way that
showed his “thought process and deliberation, which means that he wasn’t so overcome
with emotion.”
Based on the entirety of this record, it is not reasonably probable a result more
favorable to appellant would have been reached absent the prosecutor’s disputed

20 In analyzing the objective prong of heat of passion, it is not appropriate to
consider appellant’s specific character. (See People v. Steele, supra, 27 Cal.4th at
p. 1253.)

19.
comments regarding heat of passion.21 The jury was properly instructed on the law, and
the evidence overwhelmingly established murder. Accordingly, reversal is not warranted
for this issue, and this claim fails.
3. The prosecutor did not improperly vouch for herself and any
presumed error was harmless.
Appellant’s second issue arose during rebuttal argument to the jury. The
prosecutor stated that, if she had done anything improper or wrong, “you would have
heard from the judge.”
According to appellant, the prosecutor improperly vouched for her own credibility
and used the trial court “as a silent witness” when doing so. Appellant also contends that
the prosecutor misstated the law regarding the court’s function. To establish error,
appellant relies primarily on United States v. Smith (9th Cir. 1992) 962 F.2d 923 (Smith).
We reject appellant’s arguments.
In Smith, the prosecutor assured the jury that the prosecution’s key witness could
not say “whatever he wanted” as defense counsel had suggested because the witness
would be prosecuted for perjury if he did so. (Smith, supra, 962 F.2d at p. 928.) The
Ninth Circuit held that this remark “constituted the sort of personal and institutional
guarantee that the law forbids” because it suggested the prosecutor believed the witness’s
testimony was true. (Id. at p. 933.) The prosecutor further “reinforced this message with
repeated comments aimed at establishing his own veracity and credibility as a
representative of the government,” like stating his job was “not to seek a conviction but
rather to guarantee a fair trial and turn over any favorable evidence to the defense,” and

21 In his reply brief, appellant contends that this error was not harmless beyond a
reasonable doubt under Chapman v. California (1967) 386 U.S. 18. We disagree that
prejudice should be reviewed under Chapman. Instead, this alleged misconduct did not
deny appellant the right to a fair trial. Thus, the issue is whether it is reasonably probable
appellant would have received a more favorable result without the alleged misconduct.
(See People v. Tully, supra, 54 Cal.4th at pp. 1009–1010.)

20.
that “ ‘[i]f I did anything wrong in this trial I wouldn’t be here. The court wouldn’t allow
that to happen.’ ” (Id. at pp. 933–934.) The Ninth Circuit reversed, concluding that the
prosecutor’s comments as a whole were not invited and “placed the prestige of the law
enforcement branch of government behind his conduct of the trial and behind [the
witness]’s testimony.” (Id. at p. 936.) The Ninth Circuit explained that a defendant’s
right to receive a fair trial is “severely diminished” if a prosecutor may invoke the court
as the guarantor of truthfulness when the veracity of a star witness is challenged. (Ibid.)
Smith is distinguishable from the present matter. Unlike in Smith, the prosecutor
here did not make repeated comments aimed at establishing her own veracity and
credibility as a representative of the government. (See Smith, supra, 962 F.2d at pp. 933–
934.) Contrary to Smith, the prosecutor did not use the prestige of the trial court to
bolster a star witness’s credibility. (See id. at p. 936.) Instead, as appellant notes in his
briefing, it appears the prosecutor made this disputed statement in response to a defense
argument that she had failed to call logical witnesses. Unlike in Smith, appellant’s right
to receive a fair trial was not severely diminished. The concerns expressed in Smith are
lacking here, and Smith does not mandate reversal.
The prosecutor’s isolated statement did not constitute improper vouching and it
did not rise to the level of misconduct. Improper vouching by a prosecutor occurs when
she either (1) suggests that evidence not available to the jury supports a particular
argument, or (2) she invokes her personal prestige or depth of experience, or the prestige
or reputation of the office, in support of an argument. (People v. Rodriguez (2020)
9 Cal.5th 474, 480.) The prosecutor’s brief comment did not touch on these concerns.
Finally, we agree with respondent that any presumed error was harmless. Nothing
reasonably suggests the jurors would have placed any weight on the prosecutor’s
extremely brief and isolated comment that, if she had done anything wrong, they would
have heard from the judge. In any event, the evidence overwhelmingly established
appellant’s guilt for second degree murder. Consequently, it is not reasonably probable a

21.
result more favorable to appellant would have been reached absent the prosecutor’s
allegedly improper statement. Therefore, reversal is not warranted for this issue.22
4. The prosecutor did not disparage defense counsel and any
presumed error was harmless.
During rebuttal argument, the prosecutor complained that defense counsel had
relied on a “common trick” to invoke an emotional response in the jurors because he had
referred to her as “the Government.” A short time later during rebuttal, the prosecutor
responded to a defense argument that she had failed to call logical civilian witnesses. She
assured the jury that, if she had done something improper or wrong, “you would have
heard from the judge.” Immediately thereafter the prosecutor characterized defense
counsel’s argument as “another trick. It’s dishonest and it’s certainly not
straightforward.”
Appellant argues it was inappropriate for the prosecutor to attack defense counsel.
Appellant cites opinions showing that both state and federal appellate courts regularly use
the term “the government” to refer to the prosecution. Appellant also contends it was
likewise permissible for defense counsel to comment on the prosecution’s failure to call
logical witnesses. Appellant maintains that the prosecutor committed misconduct. We
disagree.
It is improper for prosecutors to launch personal attacks against defense counsel.
(People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Misconduct occurs if a prosecutor
disparages defense counsel before the jury. (People v. Williams (2009) 170 Cal.App.4th
587, 637.) “If there is a reasonable likelihood that the jury would understand the
prosecutor’s statements as an assertion that defense counsel sought to deceive the jury,

22 Because any presumed error is harmless, we likewise reject appellant’s argument
that reversal is required because the prosecutor allegedly misstated the law regarding the
function of the trial court.

22.
misconduct would be established.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302,
disapproved on another ground by People v. Merritt (2017) 2 Cal.5th 819, 831.)
However, “[a]n argument which does no more than point out that the defense is
attempting to confuse the issues and urges the jury to focus on what the prosecution
believes is the relevant evidence is not improper.” (People v. Cummings, supra, at
p. 1302, fn. 47.)
Here, the prosecutor did not accuse appellant’s trial counsel of fabricating a
defense or factually deceiving the jury. Our Supreme Court has characterized those
particular concerns as the “forbidden tactics” which establish misconduct. (People v.
Zambrano (2007) 41 Cal.4th 1082, 1154, disapproved on another point by People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22; accord, People v. Young (2005) 34 Cal.4th
1149, 1193 [it is misconduct to characterize defense counsel as “liars” or accuse counsel
of lying to the jury].) Instead, it appears the prosecutor was attempting to focus the jury
away from certain points which the defense had raised.
The prosecutor’s comments fall within precedent upheld by our Supreme Court.
In People v. Zambrano, supra, 41 Cal.4th 1082, the prosecutor characterized defense
counsel’s argument “as a ‘lawyer’s game’ and an attempt to confuse the jury by taking
the witness’s statement out of context.” This did not constitute misconduct. (Id. at
p. 1154.)
In People v. Stanley (2006) 39 Cal.4th 913, it was not misconduct for the
prosecutor to tell the jury “that defense counsel ‘imagined things that go beyond the
evidence’ and told them a ‘bald-faced lie.’ ” (Id. at p. 952.) The high court held that the
prosecutor’s remarks were merely responsive to defense counsel’s own arguments to the
jury on the state of the evidence. (Ibid.)
In People v. Young, supra, 34 Cal.4th 1149, the high court found no misconduct
when the prosecutor referred to defense counsel’s argument as “idiocy.” (Id. at p. 1193.)
Instead, that it was a “fair comment on counsel’s argument.” (Ibid.)

23.
 In People v. Stitely (2005) 35 Cal.4th 514, “[t]he prosecutor told jurors to avoid
‘fall[ing]’ for counsel’s argument in favor of a second degree murder verdict, to view
counsel’s argument as a ‘ridiculous’ attempt to allow defendant to ‘walk’ free, to view
counsel’s statement as an ‘outrageous’ attempt to demean the victim and treat her as a
‘Jane Doe,’ and to view counsel’s argument as a ‘legal smoke screen.’ ” (Id. at p. 559.)
Our high court found no misconduct. “The prosecutor simply used colorful language to
permissibly criticize counsel’s tactical approach. [Citations.] These comments were
explicitly aimed at counsel’s closing argument and statement, rather than at him
personally. We see no improper attack on counsel’s integrity.” (Id. at p. 560.)
In light of Supreme Court precedent, we conclude that the prosecutor’s disputed
comments here did not amount to misconduct. In any event, we also find any presumed
error to be harmless. The disputed remarks were directed against opposing counsel and
not against appellant. “The statements came at the conclusion of a lengthy trial in which
much evidence was introduced, and there is little likelihood that the jury was affected by
the prosecutor’s relatively brief remarks.” (People v. Perry (1972) 7 Cal.3d 756, 790.) It
is likely the jurors gave these comments “little or no consideration. Finally, and perhaps
most importantly, the judge instructed the jurors that they had to decide the case on the
basis of the evidence received in court and that they could not consider statements of
counsel as evidence.” (Id. at p. 791.) For these reasons, we conclude that this alleged
prosecutorial misconduct was not likely to have caused a miscarriage of justice, and
“reversal of the judgment is not justified on this ground.” (Ibid.)
Based on this record, we reject appellant’s three grounds of prosecutorial
misconduct. Appellant has forfeited these various claims due to a failure to object below
and seek an admonition. In any event, the prosecutor did not infect the trial with such
unfairness as to make the conviction a denial of due process. Each of the disputed
comments either did not constitute misconduct or did not cause prejudice. It is not
reasonably probable a result more favorable to appellant would have been reached in the

24.
absence of these disputed comments. Accordingly, this claim is without merit and
reversal is not required.
II. The Trial Court Did Not Abuse Its Discretion in Directing the Deadlocked
Jury to Resume Deliberations.
The jury twice informed the trial court that it was unable to reach a verdict.
Appellant argues that the trial court coercively instructed the jury the second time to
continue deliberating.
A. Background.
From February 4 through February 11, 2019, the jury heard testimony in this
matter. On February 13, 2019, the parties gave closing arguments. At 3:30 p.m. that day,
the jury began deliberating.
On the morning of February 15, 2019, the jury announced it had unanimously
agreed appellant was not guilty of first degree murder. The jury, however, stated it could
not reach any further agreement. The court asked for a numerical split. The foreperson
responded, “8/4, 9/3.” The court noted that the jury had deliberated throughout the day
before and it had spent over two hours deliberating that morning before communicating
with the court. The court said it wanted the jury to deliberate further and try to reach a
unanimous verdict, if it was possible.
The court instructed the jurors with CALCRIM No. 3551.23 It offered certain
suggestions to them, such as not hesitating “to reexamine your own views.” The court
cautioned the jurors not to change their individual positions just because it differed from
another’s position, “or just because you or others want to reach a verdict.” The jurors
were told that both parties were entitled to an individual judgment from each juror.

23 In general, CALCRIM No. 3551 provides instruction to a deadlocked jury
regarding continued deliberations. This provides suggestions on how a jury can continue
to deliberate.

25.
 That same afternoon, the jury formally returned a not guilty verdict for first degree
murder. It announced it was still deadlocked regarding second degree murder. The
foreperson reported a new “7/5” split. The court polled the individual jurors about
whether a unanimous verdict could be reached if the jurors were offered the possibility of
further readback or instructional guidance. The court received mixed responses. Five
jurors agreed that this could make a difference. However, four jurors said “No” and the
remaining three jurors said that this could “possibly” make a difference.
The court directed the jury to return on February 19, 2019, a Tuesday, and resume
deliberations. The court noted that Monday was “President’s Day.” The court told the
jurors to “take the weekend to clear your minds” and to come back on Tuesday morning
with “a fresh set of eyes and ears” and see if something might assist them in reaching a
unanimous verdict. The court stated it and the parties would do their best to provide the
jury with anything it needed. “Otherwise, I want you to continue to deliberate and see if
there is a dialogue that will allow you to arrive at a unanimous verdict.” The court
acknowledged the “difficult job” before the jury. The court stated it hoped the “long
weekend will give you an opportunity to reassess your positions and your approach and
perspective to the job, and we’ll see where we stand come Tuesday, okay.” The court
excused the jury.
On the morning of February 19, 2019, the jury resumed deliberations at about 9:15
a.m. At about 10:55 a.m., it announced it had reached a unanimous guilty verdict of
second degree murder. It found true that appellant intentionally discharged a firearm
which caused great bodily injury or death to Jones, and that appellant personally used a
firearm.24

24 The trial court individually polled the jurors, who each acknowledged that this
represented their true and correct verdict.

26.
 B. Analysis.
Appellant argues that, unlike its first instruction to the deadlocked jury, the trial
court did not again caution the jurors to not change their positions just because of a
difference with another person, or just because someone wanted to reach a verdict. The
court also did not instruct the jurors that the parties were entitled to an individual
judgment from each of them. According to appellant, the court’s second instruction
effectively encouraged the jurors “to consider the numerical division or preponderance of
opinion” when forming or reexamining their individual views. Appellant maintains that
the court’s second instruction violated Supreme Court precedent, along with his due
process rights. He asserts that the numerical split was growing and not lessening before
the court’s second instruction. Appellant argues it is reasonably probable he would have
obtained a more favorable result had the court not so acted. He relies primarily on
Jiminez v. Myers (9th Cir. 1994) 40 F.3d 976 (Jiminez).
Appellant’s arguments and his cited authority are unpersuasive. We agree with
respondent that appellant has forfeited this claim. In any event, it also fails on its merits.
1. This claim is forfeited.
It is undisputed that appellant did not object when the trial court instructed the jury
the second time to continue its deliberations. Appellant argues he did not have a
reasonable opportunity to raise an objection because the trial court did not review its
instruction with the parties before directing the jury to come back after the long weekend
and continue deliberating. In the alternative, appellant contends that the court had an
obligation to instruct the jury correctly. Finally, appellant raises ineffective assistance of
counsel if this claim is deemed forfeited.
Respondent disagrees with appellant’s characterization that the trial court’s final
statement to the jury amounted to a formal “instruction.” However, respondent raises
forfeiture if that final statement is deemed an instruction.

27.
 We need to resolve the parties’ dispute regarding whether or not the trial court
gave a formal “instruction” to the jury when it directed them to resume deliberating after
the holiday break. Regardless of how the court’s statement is classified, appellant was
obligated to preserve for appeal this assignment of alleged error. His failure to object
below precludes his obtaining appellate relief to the extent he claims the trial court
committed statutory error. (See People v. Saunders (1993) 5 Cal.4th 580, 589–590
[failure to object precludes appellate relief regarding alleged statutory error committed by
trial court].)
As we explain below, the trial court did not improperly coerce the jury. Thus,
appellant’s due process rights were not violated and appellant does not demonstrate
ineffective assistance of counsel. Defense counsel was not obligated to lodge an
objection that counsel reasonably determined would be futile. (People v. Price (1991)
1 Cal.4th 324, 387.) Consequently, this claim is deemed forfeited.
2. This claim fails on its merits.
In relevant part, section 1140 provides that a jury cannot be discharged without
having rendered a verdict unless the trial court deems there is no reasonable probability
that the jury can agree. “ ‘The decision whether to declare a hung jury or to order further
deliberations rests in the trial court’s sound discretion.’ ” (People v. Lopez (2018) 5
Cal.5th 339, 364.)
A trial court must exercise its power under section 1140 without coercing the jury.
(People v. Lopez, supra, 5 Cal.5th at p. 364.) A jury’s independent judgment must not be
displaced in favor of compromise and expediency. (Ibid.) Our high court has explained
that “ ‘ “[a]ny claim that the jury was pressured into reaching a verdict depends on the
particular circumstances of the case.” ’ [Citation.]” (Ibid.)
In People v. Gainer (1977) 19 Cal.3d 835 (Gainer), disapproved on another
ground in People v. Valdez (2012) 55 Cal.4th 82, 163, our Supreme Court held it is

28.
improper for a trial court to “appeal to dissenting jurors to abandon their own
independent judgment of the case against the accused.” (Gainer, at p. 849.) Gainer
established prohibitions for a trial court when dealing with a deadlocked jury. Error
occurs if a trial court encourages deadlocked jurors to consider the “numerical division or
preponderance of opinion of the jury” when renewing deliberations. (Id. at p. 852.) It is
also error if a trial court states or implies that the case will necessarily be retried if the
jury fails to agree. (Ibid.)
Two Supreme Court opinions, People v. Tarantino (1955) 45 Cal.2d 590
(Tarantino) and People v. Pride (1992) 3 Cal.4th 195 (Pride) are instructive in this
matter. Both Tarantino and Pride demonstrate that the trial court did not abuse its
discretion in directing the jury to continue its deliberations. Before summarizing those
opinions, we review appellant’s cited authority, Jiminez.
a. Jiminez.
In Jiminez, the Ninth Circuit concluded that the defendant had been denied a fair
trial and his federal constitutional due process rights violated because the California state
trial court had coercively directed the jury to continue deliberating. (Jiminez, supra, 40
F.3d at p. 981.) The jury twice declared it was deadlocked. Both times, the trial court
inquired about the numerical split. (Id. at pp. 978–979.) The final split was “[e]leven-
one.” (Id. at p. 979.) The trial court stated that “substantial movement” had occurred
“since the last time.” The court ordered the jury to finish deliberations that day “and see
where we are at that point in time.” (Id. at p. 979.) Defense counsel objected and asked
the court to inquire whether further deliberation would be fruitful. The defense also
argued that “a tremendous amount of pressure” was being exerted on the lone holdout
juror. (Ibid.) The court determined that the holdout juror would not be subjected to
“ ‘undue pressure’ ” because the jury had only been asked to finish the day deliberating,

29.
which was about two more hours. (Ibid.) The jury returned a guilty verdict after an hour
and 48 minutes of additional deliberation.
The Ninth Circuit held that “the trial court’s comments and conduct amounted to
giving the jury a de facto Allen charge, which instructs the jurors to work towards
unanimity and the minority to reexamine its views.”25 (Jiminez, supra, 40 F.3d at
p. 980.) The trial court had “effectively instructed the jurors to make every effort to
reach a unanimous verdict.” (Id. at p. 981.) The trial court had elicited the progression in
the voting and determined it was moving in one direction. The trial judge had expressed
“his approval of that progression,” and told the jury to continue its deliberations. (Ibid.)
“In view of the disclosure after the second impasse that only one juror remained in the
minority and the trial court’s implicit approval of the ‘movement’ toward unanimity, the
court’s instruction to continue deliberating until the end of the day sent a clear message
that the jurors in the majority were to hold their position and persuade the single hold-out
juror to join in a unanimous verdict, and the hold-out juror was to cooperate in the
movement toward unanimity.” (Ibid.) “The trial court’s failure to counter-balance the
implication of its questions and comments by instructing the hold-out juror not to
surrender his or her sincere convictions strongly supports the conclusion that the jury was
impermissibly coerced to render a unanimous verdict.” (Ibid.)
b. Tarantino.
In Tarantino, the defendant was indicted on one count of conspiracy to commit
extortion and three counts of extortion. (Tarantino, supra, 45 Cal.2d 590 at p. 592.) The

25 See Allen v. United States (1896) 164 U.S. 492, 501. Courts have not settled upon
a “ ‘precise formulation’ ” for an Allen charge. (United States v. Washington (9th Cir.
2011) 444 F.App’x 943, 948.) The “defining feature of an Allen charge is the request that
jurors, particularly minority jurors, re-examine their views of the evidence.” (Ibid.) In
1977, our Supreme Court held that an Allen charge was prohibited in California because
“it instructs the jury to consider extraneous and improper factors, inaccurately states the
law, carries a potentially coercive impact, and burdens rather than facilitates the
administration of justice.” (Gainer, supra, 19 Cal.3d at pp. 842–843.)

30.
jury deliberated from the morning of December 18 through the evening of December 22
before rendering guilty verdicts on all four counts. (Id. at p. 599.) During that span, the
jury alerted the trial court at least twice that it could not reach agreements. On December
21, and again on the late afternoon of December 22, the trial court instructed the jury to
continue its deliberations. During its final discussion with the jury, which occurred at
4:30 p.m., the court stated it was the jurors’ “ ‘duty’ ” to deliberate and it would violate
their oaths as jurors to refuse to discuss the case further. (Id. at p. 600.) The court said it
knew the jurors “ ‘have been very patient and have been here a long time, and maybe
tempers wear thin, but it is your duty to deliberate until the court excuses you.’ The
judge pointed out that the jury need not be in agreement as to all counts and asked them
to deliberate ‘somewhat further.’ At 8:45 p.m. they returned with the verdicts.” (Ibid.)
The Supreme Court in Tarantino rejected the defendant’s assertion that the trial
court had coerced the verdicts. According to the high court, the trial court never
suggested what verdicts should be reached and it did not impose any improper pressure
upon the jury to agree. (Tarantino, supra, 45 Cal.2d at p. 600.) The trial court did not
require the jury “to prolong their deliberations unduly, particularly in view of the fact that
the trial had consumed 44 days.” (Ibid.) The Supreme Court found no judicial coercion.
(Ibid.)
c. Pride.
In Pride, the defendant was sentenced to death following convictions for two
murders. (Pride, supra, 3 Cal.4th at p. 213.) During the penalty phase, the jury
deliberated for more than an entire week, and its vote apparently remained at 11 to 1 for
most of that time. (Id. at p. 265.) The foreperson “publicly suggested the minority juror
was breaching his or her duty to impose the appropriate penalty.” (Ibid.) On appeal, the
defendant argued that the trial court had coerced the verdict by ordering deliberations to

31.
continue. (Ibid.) According to the defendant, the trial court had impliedly agreed with
the foreperson’s assessment. Our Supreme Court rejected these arguments. (Ibid.)
Citing section 1140 and various Supreme Court precedents, Pride held that a trial
court “may ask jurors to continue deliberating where, in the exercise of its discretion, it
finds a ‘reasonable probability’ of agreement.” (Pride, supra, 3 Cal.4th at p. 265.) The
trial court had “avoided any comment on the status of the vote and strongly suggested it
was irrelevant. The jury was never told it must reach a verdict, nor were any other
constraints placed on their deliberations.” (Id. at pp. 265–266.) The high court found it
persuasive that, a few days earlier, the trial court had reread the instruction describing the
individual nature of the penalty determination. In addition, the trial had been lengthy and
complex. As such, “the direction to continue deliberations could only have been
perceived as giving jurors an opportunity to enhance their understanding of the case,
rather than as pressure to reach a verdict.” (Id. at p. 266.) Finally, two jurors had told the
trial court that they believed a verdict might be reached, and no juror said a unanimous
agreement was impossible. The Supreme Court concluded that the trial court had not
coerced a verdict or abused its discretion under section 1140. (Pride, at p. 266.)
d. The present matter.
In this matter, the trial court asked the jurors to “take the weekend to clear your
minds” and to come back on Tuesday morning with “a fresh set of eyes and ears” and see
if something might assist them in reaching a unanimous verdict. The court stated that the
jury would be provided with anything it needed. “Otherwise, I want you to continue to
deliberate and see if there is a dialogue that will allow you to arrive at a unanimous
verdict.” The court’s comments comply with California Rules of Court, rule 2.1036,
which permits a trial court to remind a jury at an impasse “of its duty to decide the case
based on the evidence while keeping an open mind and talking about the evidence with

32.
each other. The judge should ask the jury if it has specific concerns which, if resolved,
might assist the jury in reaching a verdict.”
We conclude that the trial court did not abuse its discretion. The court never
stated or implied that this case would be retried if the jury failed to reach an agreement.
The court never suggested to the jurors that they should reconsider their views in light of
the numerical breakdown of the votes. Thus, the trial court did not violate the
prohibitions announced in Gainer. (See Gainer, supra, 19 Cal.3d at p. 852.)
When the first deadlock was discussed, the trial court cautioned the foreperson to
provide only the numerical breakdown and not to disclose how the jurors were split.
“This directive communicated to the jury that the court was not concerned with the
direction of the voting.” (People v. Brooks (2017) 3 Cal.5th 1, 90.) Although the trial
court instructed the jurors to continue deliberating a second time, the court did so only
after polling the individual jurors and receiving some positive feedback that further
deliberations could be fruitful. Our Supreme Court has approved of this approach. (See
People v. Lopez, supra, 5 Cal.5th at p. 364 [noting with approval that the trial court
questioned “individual jurors on whether he or she believed the jury was deadlocked and
whether the court could do anything to assist the process”].) Indeed, Pride held that a
trial court “may ask jurors to continue deliberating where, in the exercise of its discretion,
it finds a ‘reasonable probability’ of agreement.” (Pride, supra, 3 Cal.4th at p. 265.)
Unlike in Jiminez, the trial court did not express any approval regarding how the
numerical split was progressing. The court also did not impliedly direct the jurors to
abandon their respective positions just to reach unanimity. Instead, the court asked the
jurors to “see if there is a dialogue that will allow you to arrive at a unanimous verdict.”
The court acknowledged the “difficult job” before the jury, and it hoped the long
weekend would give the jurors an opportunity “to reassess your positions and your
approach and perspective to the job.” Jiminez is distinguishable and it does not dictate
reversal.

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 Finally, the trial court never suggested what verdict the jurors should reach. As in
Tarantino, the court did not require the jury to unduly prolong its deliberations, and the
court did not impose improper pressure on the jury to reach an agreement. Similar to
Pride, the court never told the jury it must reach a verdict, and it did not place any
constraints on their deliberations. Instead, the court invited the jury to seek additional
resources if needed and “we’ll see where we stand come Tuesday, okay.” Both
Tarantino and Pride support affirming the trial court’s decision. Judicial coercion did not
occur.
III. Appellant’s Claim of Ineffective Assistance of Counsel Is Without Merit.
Appellant raises a claim of ineffective assistance of counsel. He argues that his
counsel failed to object during the prosecutor’s closing arguments, and his counsel failed
to object to the trial court’s instruction that directed the jury to continue deliberations a
second time. According to appellant, his counsel also misstated the law regarding heat of
passion during the defense’s closing argument.
Accompanying this appeal, appellant has filed a petition for writ of habeas
corpus.26 In the petition, he contends his trial counsel was ineffective in failing to object
to the instances of purported misconduct during closing argument, and in failing to object
to the court’s instruction directing the jury to continue deliberations a second time. He
also argues that his trial counsel failed to ask for the media to be excluded when the jury

26 On January 21, 2021, this court issued an order deferring a ruling on the petition
for a writ of habeas corpus pending a ruling in the present appeal.

34.
was told to continue its deliberations.27 According to appellant, he filed the petition “to
allow for expansion of the record through an evidentiary hearing.”28
We reject appellant’s claim of ineffective assistance of counsel. We likewise
summarily deny the companion petition for a writ of habeas corpus.
Under the federal and state Constitutions, a criminal defendant is entitled to the
effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People
v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of
counsel on direct appeal, a defendant must establish two criteria: (1) that counsel’s
performance fell below an objective standard of reasonable competence and (2) that he
was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687–688.) The
defendant has the burden of showing both deficient performance and resulting prejudice.
(People v. Lucas, supra, 12 Cal.4th at p. 436.) In conducting this review, the appellate
court considers whether the record contains any explanation for counsel’s actions; if the
record sheds no light on counsel’s actions, the claim is not cognizable unless counsel was
asked for an explanation and failed to provide one, or unless there could be no
satisfactory explanation for the actions taken. (People v. Kelly (1992) 1 Cal.4th 495,
520.)

27 On the morning of February 15, 2019, the trial court put on the record that “a
representative of the media” was present. However, the record does not reflect whether
or not any member of the media was present during the afternoon session when the court
instructed the jury to continue deliberations after the holiday weekend.
28 Appellant filed no declarations or other supporting documents in support of his
petition for a writ of habeas corpus. To satisfy the initial burden of pleading adequate
grounds for relief, such a petition should “include copies of reasonably available
documentary evidence supporting the claim, including pertinent portions of trial
transcripts and affidavits or declarations. [Citations.] ‘Conclusory allegations made
without any explanation of the basis for the allegations do not warrant relief, let alone an
evidentiary hearing.’ [Citation.] We presume the regularity of proceedings that resulted
in a final judgment [citation], and, as stated above, the burden is on the petitioner to
establish grounds for his release. [Citations.]” (People v. Duvall (1995) 9 Cal.4th 464,
474 [italics added].)

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 Likewise, a habeas corpus petitioner must prove facts by a preponderance of the
evidence that establish a basis for relief. A petitioner must establish either (1) that,
because of defense counsel’s performance, “the prosecution’s case was not subjected to
meaningful adversarial testing, in which case there is a presumption that the result is
unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, and there is a reasonable probability that, but for counsel’s
unprofessional errors and/or omissions, the trial would have resulted in a more favorable
outcome. [Citations.]” (In re Visciotti (1996) 14 Cal.4th 325, 351–352.)
In the present matter, we have already explained that the prosecutor either did not
commit misconduct during closing arguments and/or any misstatement of law was
harmless. We have also already concluded that the trial court did not coercively direct
the jury to continue deliberations after it announced it was deadlocked. As such,
appellant does not demonstrate ineffective assistance of counsel. Appellant fails to show
that his counsel’s failure to raise objections to these disputed points fell below an
objective standard of reasonable competence. “Counsel does not render ineffective
assistance by failing to make motions or objections that counsel reasonably determines
would be futile.” (People v. Price, supra, 1 Cal.4th at p. 387.) “Counsel may well have
tactically assumed that an objection or request for admonition would simply draw closer
attention to the prosecutor’s isolated comments.” (People v. Ghent, supra, 43 Cal.3d at
p. 773.)
Moreover, appellant has not established that he was prejudiced. As we have
already explained, it is not reasonably probable a more favorable result would have
occurred had the prosecutor not made her disputed comments. Thus, appellant does not

36.
meet his burden of establishing any resulting harm even if his counsel should have raised
objections.29
Finally, we reject appellant’s assertion that his trial counsel prejudicially misstated
the law regarding heat of passion. During closing argument, defense counsel asserted
that “someone from a very wealthy neighborhood” might not believe it was reasonable to
shoot Jones. However, counsel argued that the jurors had to “look at the situation” and
counsel began to suggest that it was appropriate to consider how a person from this
particular neighborhood would have acted. The prosecutor objected, contending that
defense counsel’s argument misstated the law. The trial court overruled that objection,
and it admonished the jury that it was to rely on the legal instructions provided by the
court. Based on the admonishment given to the jury, along with the proper legal
instructions regarding heat of passion, any potential misstatement of law by defense
counsel was harmless.
Based on this record, appellant does not demonstrate ineffective assistance of
counsel. We will summarily deny the companion petition for a writ of habeas corpus
because appellant does not prove facts by a preponderance of the evidence that
establishes a basis for relief. This claim on direct appeal is likewise without merit.
IV. The Sentence is Conditionally Reversed for the Trial Court to Exercise its
new Discretion Following Tirado.
At sentencing in this matter, the trial court declined to strike the firearm
enhancements which the jury found true under sections 12022.5 and 12022.53. The court
stated that appellant’s use of a firearm was an “integral part” of his conduct in this matter.
The court determined it was appropriate to impose the greater enhancement of 25 years to
life under section 12022.53, subdivision (d). The court also imposed but stayed the upper

29 Likewise, no prejudice is demonstrated based on defense counsel’s alleged failure
to exclude media from the courtroom when the trial court directed the jury to continue
deliberations after the holiday weekend.

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term of 10 years on the firearm enhancement found true under section 12022.5,
subdivision (a). Appellant received a prison sentence of 15 years to life for the second
degree murder, along with a consecutive 25 years to life for the firearm enhancement
under section 12022.53, subdivision (d).
After sentencing in this matter, our high court held in Tirado that, in certain
circumstances, a sentencing court may strike a firearm enhancement under section
12022.53, subdivision (d), and, instead, impose a lesser uncharged statutory
enhancement. (Tirado, supra, 12 Cal.5th at p. 692.) According to the Supreme Court,
“[T]he Legislature has permitted courts to impose the penalties under section
12022.53[, subdivision] (b), (c), or (d) so long as the existence of facts required by the
relevant subdivision has been alleged and found true.” (Tirado, at p. 702.)
The parties agree that appellant was sentenced before our Supreme Court issued
Tirado. Via supplemental briefing, the parties dispute whether or not this matter should
be remanded in light of Tirado. Respondent principally asserts that, based on the prior
sentencing choices, a remand is unnecessary because there is no reasonable likelihood of
a different result.
We conclude that a remand is appropriate to protect appellant’s due process rights.
At the time of appellant’s sentencing, the court only had a binary choice regarding the
firearm enhancement found true under section 12022.53, subdivision (d); either impose a
sentence of 25 years to life or impose no time. Tirado makes it clear that sentencing
courts now have discretion to impose an alternative penalty under section 12022.53,
subdivision (b), (c), or (d) “so long as the existence of facts required by the relevant
subdivision has been alleged and found true.” (Tirado, supra, 12 Cal.5th at p. 702.) In
the interests of justice, it is appropriate for the trial court to exercise this discretion, and
we will accordingly remand this matter. (See § 1260 [an appellate court may remand a
cause to the trial court for such further proceedings as may be just under the

38.
circumstances].) We take no position on how the court should exercise its sentencing
discretion.
DISPOSITION
Appellant’s sentence is conditionally reversed. This matter is remanded to the
trial court with directions for it to exercise its discretion to impose the term of 25 years to
life for using a firearm (§ 12022.53, subd. (d)) or, instead, to impose an enhancement
under section 12022.53, subdivision (b) or (c) “so long as the existence of facts required
by the relevant subdivision has been alleged and found true.” (Tirado, supra, 12 Cal.5th
at p. 702.) Should the court decline to strike or modify the enhancement under section
12022.53, subdivision (d), then appellant’s sentence shall be reinstated and stand
affirmed. Should the court order the firearm enhancement stricken and/or modified, the
court shall resentence appellant accordingly and forward a new abstract of judgment to
the appropriate authorities. In all other respects, the judgment is affirmed.

LEVY, Acting P. J.
WE CONCUR:

PEÑA, J.

MEEHAN, J.

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