People v. Vines CA1/1

Filed 5/24/22 P. v. Vines CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE

THE PEOPLE,
Plaintiff and Respondent, A160961

v. (Alameda County
ROOSEVELT VINES, JR., Super. Ct. No.
19CR009370)
Defendant and Appellant.

Defendant Roosevelt Vines Jr. shot and killed Mario Thomas at the site
of a “memorial” to one of defendant’s friends who had been shot the preceding
day. Defendant was convicted of first degree murder, being a felon in
possession of a firearm, and attempting to dissuade a witness.
Defendant maintains the prosecutor committed misconduct during
cross-examination and closing argument, and that his own counsel was
ineffective in failing to object. He also claims no substantial evidence
supports the jury’s finding that the murder was premeditated and deliberate.
Lastly, he asserts the court erred in imposing fines without determining his
ability to pay. We affirm.

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 BACKGROUND1
In August 2018, defendant’s friend, Esau Davis, was killed in the 7100
block of International Boulevard in Oakland. Defendant learned about the
death the following day, and then went to a memorial spot near where Davis
had been killed to try to find out what happened. He carried a gun “on the
side of [his] pants.”
Defendant testified he encountered Thomas, also a friend, at the
memorial spot. Defendant asked Thomas “ ‘what happened yesterday with
Esau.’ ” Thomas responded he did not know, but “ ‘word was Esau told on
someone and that’s what happened.’ ” Thomas told defendant to “ ‘be safe,’ ”
and defendant responded he was “ ‘strapped.’ ” Thomas asked to see the gun.
Defendant had felony convictions and did not want to be seen with a gun. He
knew there were surveillance cameras at that location, so he turned away
from the cameras before he “pulled [the gun] out to show him.” According to
defendant, he “pulled [the gun] out and the motherfucker just said pow. And
then when it went off, I looked and I seen him drop. . . . [T]hat’s when the
panic and shit started happening, and I left.” He testified he did not intend
for the gun to go off.
Defendant drove to his sister’s house, changed his clothes, and disposed
of his old clothing and the gun in three separate garbage bags. He then drove
to the home of his girlfriend, J.W. He testified he was “hysterical,” and told
her he “ ‘accidentally shot my partna, [Thomas].’ ” J.W. told defendant to
calm down and take a shower and brought him bleach to get rid of the
gunshot residue. According to defendant, the idea of using bleach to

1 We set forth the facts only to the extent necessary to address the
issues raised on appeal.

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eliminate the gunshot residue was J.W.’s. He “wasn’t even thinking about
nothing like that really because [he] wasn’t trying to hide or cover up.”
Oakland police responded to the scene of the shooting after the
“Shotspotter,” which has microphone sensors that detect shots and calculates
their geographic location, indicated a sound consistent with a single gunshot
at about 3:43 p.m. near the 7100 block of International Boulevard in
Oakland. When police arrived, they found a man, later identified as Thomas,
next to a motorized wheelchair with a single gunshot wound to his head. He
was pronounced dead at the scene.
Police obtained footage from multiple surveillance cameras near the
time and place of the crime. The footage showed a man, later identified as
defendant, driving toward the crime scene in a Buick. Defendant parked the
car, got out and headed towards Thomas who was sitting in a wheelchair on
the other side of a fence. He stood next to Thomas for 90 to 100 seconds, then
turned away from the main surveillance camera. The footage showed
defendant quickly walking away before Thomas fell face forward to the
ground. Defendant then jogged back to the Buick and drove away.
Police began conducting surveillance on the Buick. After obtaining a
warrant, police placed tracker devices on the Buick at traffic stops on
September 5th and October 2nd. On October 6th, police stopped the Buick
for a traffic violation and arrested defendant, the driver, on an out-of-county
arrest warrant.
Oakland Police conducted a videotaped interview of defendant almost
two weeks later. Defendant initially denied knowing anything about
Thomas’s shooting, denied knowing where he was killed, and denied talking
to Thomas. After police showed him the surveillance video footage of the

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Buick at the scene, defendant admitted he was in the area and that Thomas
and the wheelchair were there.
Defendant told the police he had heard that someone tried to rob Davis
and that Thomas might have witnessed Davis’s murder. Defendant admitted
driving the Buick to the spot where Davis was murdered to figure out what
happened to him. He never told the police he accidentally shot Thomas.
Police executed a search warrant at a home in Oakland where
defendant stayed with his girlfriend, J.W. Her grandmother and a man
named Jackie W. also lived there. Jackie W. told police J.W. told him
defendant had “ ‘shot at somebody.’ ”
Police found indicia of ownership belonging to defendant in one
bedroom, as well as nine-millimeter and .38-millimeter special ammunition, a
box of .22 caliber ammunition and a .22 caliber firearm, and shotgun and rifle
ammunition.
In May 2019, J.W. called police and said defendant shot Thomas. She
left a voicemail for Sergeant Vass of the Oakland Police Department saying
“this is pertaining to . . . Roosevelt Vines . . . Uh, he did it. . . . August 27, it
was a Monday. Early day. 2018. I might have a bullet. . . . [B]ut his sister
did something with the gun.”
Sergeant Vass returned her call and told J.W. he would keep her name
private. J.W. told Vass defendant came home on the day of the murder and
changed his clothes. Defendant told her he had gone to the area of Davis’s
murder in the Buick and spoke with a man who might have information
about it. The man was “disrespectful,” so defendant shot him once in the
head with a nine-millimeter gun. After the shooting, he went to his sister’s
house and threw away his clothes and the gun. J.W. helped defendant

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shower and sprayed him with bleach to eliminate the gunshot residue. J.W.
gave Sergeant Vass a bullet.
In October 2019, J.W. learned that defendant knew what she had told
police. She called the prosecutor and identified herself as a witness. She said
she had heard defendant knew she “snitched on him,” “which shouldn’t have
never happened because [she] wanted to be anonymous.” She indicated she
now felt her “life [was] in danger.”
J.W. testified under a grant of immunity and as a hostile witness.
Although she acknowledged earlier telling the police her life was in danger,
at trial she testified, “I wasn’t afraid. There’s nothing to be afraid about.”
She also testified she “fabricated a story” when she talked to Sergeant Vass
because she wanted to get defendant in trouble. She was angry at him
because he told her he wanted to move out of state with another woman and
take the child he shared with J.W. Defendant similarly testified that J.W.
lied to the police about the shooting because she was angry with him because
he cheated on her and was planning to take their baby and go to Las Vegas.
Defendant and J.W. visited while he was in jail and talked by phone.
Not all their conversations were recorded because they whispered or, on one
occasion, defendant motioned to J.W. to put down the hand set which
recorded jail conversations. During their conversations, defendant told J.W.,
“ ‘I’m not going to slaughter your name.’ ” He testified that meant “she did
whatever she tried to do; like she tried to throw me under the bus. I would
never do that to her. . . . It’s not worth it.”
Defendant explained the “code” in Oakland is “You snitch, you’ll get
killed or something.” He told J.W. to admit she had lied about the case to
police, and to speak with his defense attorney’s investigator, which she
ultimately did. Defendant testified he “told her to . . . tell the truth, so she

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can tell what I really told her. Don’t go and tell the police one thing and then
turn around and just leave it like that.”
The jury found defendant guilty of first degree murder (Pen. Code,
§187),2 unlawful possession of a firearm (§ 29800, subd. (a)(1)), and
dissuading a witness (§ 136.1, subd. (a)(1)), and found true the enhancing
allegation under section 12022.3, subdivision (d). The court sentenced him to
50 years to life, plus 3 years, 8 months, in state prison,
DISCUSSION
Prosecutorial Misconduct
Defendant maintains the prosecutor committed numerous acts of
misconduct, both during cross-examination and closing argument.
“ ‘ “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.” ’ ” ’
[Citations.] ‘ “Under state law, a prosecutor who uses such methods commits
misconduct even when those actions do not result in a fundamentally unfair
trial.” ’ [Citations.] ‘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.’ ” ’ [Citations.] 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.)

2All further statutory references are to the Penal Code unless
otherwise indicated.

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 Forfeiture
“ ‘ “[A] defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be
admonished to disregard impropriety.” ’ ” (People v. Pearson (2013)
56 Cal.4th 393, 426.) “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.” (People v.
Rivera, supra, 7 Cal.5th at p. 334.)
Defendant concedes his counsel did not object to “each instance” of the
claimed misconduct but maintains his failure to do so should be excused
because any objection would have been futile. He asserts the “prosecutor’s
conduct was pervasive and continual . . . [and she] was not deterred from
committing misconduct when the trial court sustained defense counsel’s
objections,” relying on People v. Hill (1998) 17 Cal.4th 800 (Hill), overruled on
another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn.
13.
In Hill, defense counsel “was subjected to a constant barrage of [the
prosecutor’s] unethical conduct, including misstating the evidence, sarcastic
and critical comments demeaning defense counsel, and propounding outright
falsehoods. With a few exceptions, all [the prosecutor’s] misconduct occurred
in front of the jury. Her continual misconduct, coupled with the trial court’s
failure to rein in her excesses, created a trial atmosphere so poisonous that
[defense counsel] was thrust upon the horns of a dilemma. On the one hand,
he could continually object to [the prosecutor’s] misconduct and risk
repeatedly provoking the trial court’s wrath, which took the form of
comments before the jury suggesting [defense counsel] was an obstructionist,

7
delaying the trial with ‘meritless’ objections. These comments from the bench
ran an obvious risk of prejudicing the jury towards his client. On the other
hand, [defense counsel] could decline to object, thereby forcing defendant to
suffer the prejudice caused by [the prosecutor’s] constant misconduct.” (Hill,
supra, 17 Cal.4th at p. 821.) Under those “unusual circumstances,” the court
concluded defense counsel was excused from the legal obligation to
continually object. (Ibid.)
Here, in contrast, while defense counsel objected to certain of the
prosecutor’s questions, he did not do so on the basis of prosecutorial
misconduct. Moreover, as defendant concedes, many of those objections were
sustained by the trial court. Accordingly, defendant cannot show that
objections on the basis of prosecutorial misconduct would have been futile,
and has therefore forfeited such claims.
Claimed Misconduct During Cross-Examination
Even had defendant not forfeited his claims of prosecutorial
misconduct, they fail on the merits.
Defendant first asserts the prosecutor committed misconduct by
“asking argumentative and objectionable questions” during cross-
examination of defendant. He identifies the questions: “ ‘You’ve been to
prison?’ ”3 and “ ‘You don’t want to go to prison now, right?’ ” as misconduct.
The trial court sustained defense counsel’s relevance objection to the first
question but overruled the argumentative objection to the second.
Defendant also claims the following question, to which the court
sustained a relevance and argumentative objection, was misconduct: “It

3 The prosecutor asked this question after defendant testified he
“like[d] selling weed,” and had five felony convictions for it in Alameda
County.

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sticks out in your mind that Esau Davis gets murdered and then you kill one
of your friends the very next day, that sticks out in your mind, right?” After
the prosecutor asked the court on which ground the objection had been
sustained and stated “May I ask a question or is it irrelevant?” the court
spoke to her outside the jury’s presence. The court indicated she should
“work with me” and “accept” the court’s rulings, stating “I don’t want to
devolve any more than what it has already.” The prosecutor then asked,
without objection, “It stuck out in your mind these events of Esau getting
killed and you killing Mario the very next day, right? [¶] . . . [¶] And that
stuck out in your mind because it’s unusual?” Defendant claims these
questions amounted to misconduct because the prosecutor asked them
knowing they were improper and the testimony would be inadmissible.
However, simply asking a question to which an objection is sustained,
and following up with questions to which no objections are made, is not
misconduct. (See People v. Lund (2021) 64 Cal.App.5th 1119, 1145
[“[Defendant] cites cases holding that a prosecutor may commit misconduct
by intentionally seeking to admit inadmissible evidence. [Citations.] But
those cases involved situations in which prosecutors tried to introduce
evidence that was inadmissible in its entirety, particularly when the trial
court had already so ruled.”].)
Defendant also identifies the following questions concerning
defendant’s testimony that after shooting Thomas, he left the scene, disposed
of his clothes and the gun, lied to police and his friends, and conceded that
while in jail, he attempted to communicate with J.W. and his sister in ways
to avoid using the jail phones. The prosecutor asked, “Would you agree with
me that all of this taken together appears to be the desperate acts of a guilty
man?” After an argumentative objection was sustained, she asked “Would

9
you agree that all of that appears desperate?” The court again sustained an
argumentative objection.
The fact that the court sustained objections to these two questions does
not mean asking them rose to the level of misconduct. As explained in People
v. Armstrong (2019) 6 Cal.5th 735, “[e]ffective and legitimate cross-
examination may involve assertive and even harsh questioning. It is
permissible to accuse a witness of being untruthful.” (Id. at p. 796.) The
defendant in Armstrong took issue with the cross-examination, “which he
characterize[d] as hostile, repetitive, and argumentative, with frequent
accusations of lying. Even accepting this characterization at face value, it
supplies no basis for a claim of misconduct. This was the cross-examination
of the defendant in a capital murder case. . . . [Defendant] identifies no line
of questioning, and the transcript reveals none, that crossed over any
boundaries of fair play or that would have led the jury to decide this case on
anything other than the facts and the law.” (Ibid.)
Defendant next claims the prosecutor interjected inappropriate
comments throughout his testimony. Specifically, he maintains her comment
of “sure,” made after two of his responses, was misconduct. Defense counsel
objected both times, and the court admonished the prosecutor “[P]lease ask
the questions. No comments.”
Relying on People v. Bonilla (2007) 41 Cal.4th 313, defendant asserts
the prosecutor was “prohibited from making comments which ‘may be
understood by jurors to permit them to avoid independently assessing
witness credibility and to rely on the government’s view of the evidence.’ ” In
Bonilla, the prosecutor “referred to the terms of [the] star witness’s . . . plea
agreement, an agreement that required [him] to testify truthfully,” which the
defendant maintained constituted impermissible vouching. (Id. at p. 334.)

10
The court rejected that claim, noting a prosecutor is “not preclude[d from] all
comment regarding a witness’s credibility. ‘ “ ‘[A] prosecutor is given wide
latitude during argument. The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom.’ ” ’ ” (Id. at pp. 336–337.)
The prosecutor’s two comments of “sure” could not reasonably have been
understood by jurors to permit them to avoid independently assessing
defendant’s credibility.
Defendant also maintains the prosecutor committed misconduct by
asking him “to comment on the testimony of other witnesses.” He objects to
the following questions about the testimony of J.W: “Q: Would you agree that
it appeared like she wasn’t telling the whole truth? A: She wasn’t telling the
truth, no. Q: And would you agree with me it was obvious she wasn’t telling
the truth? A: I don’t know what was going on with her. Like I said, you
want me to say thing or do things that y’all already know. Like I don’t know.
Q: Would you agree with me that it was obvious that she wasn’t telling the
truth?” At this point, the trial court sustained defense counsel’s asked and
answered objection. The prosecutor again asked “As you sit there now, do
you believe it was obvious she wasn’t telling the truth?” The court sustained
defense counsel’s argumentative and asked and answered objections.
Defendant now claims “[a]sking a defendant whether another witness
was lying may constitute misconduct,” relying on People v. Zambrano (2004)
124 Cal.App.4th 228. Zambrano, however, concluded “we disagree that it is
always misconduct for a prosecutor to ask ‘were they lying’ questions.
Although the questions generally elicit inadmissible and irrelevant lay
opinion testimony [citation] they may be allowable in limited circumstances.”
(Id. at p. 242, italics omitted.) “For example, the questions may be

11
appropriate when necessary to clarify a particular line of testimony.
[Citations.] Even if a ‘were they lying’ question calls for an inadmissible
opinion on another person’s veracity, asking one or two such questions, if
necessary to clarify a witness’s testimony, may not be a ‘reprehensible
method’ of persuading the jury.” (Ibid.)
Defendant asserts there “was no evidentiary purpose in asking [him]
about [J.W.’s] testimony.” To the contrary, defendant had already testified
that J.W. was lying before the prosecutor asked the challenged questions. He
testified J.W. lied about his sister “busting up a gun and throwing it in a
lake” because J.W. disliked his sister. Indeed, J.W. had changed her story
over time, and defendant had been charged with dissuading her as a witness.
Under these circumstances, the prosecutor’s questions in this regard did not
constitute misconduct.
Claimed Misconduct During Closing Argument
Again, assuming defendant preserved his misconduct claims, the
prosecutor did not commit misconduct during closing argument and even if
any misconduct occurred, it was harmless.
Defendant first asserts the prosecutor misstated the law as to
accidental shooting, dissuading a witness, and implied malice.
As to the accident defense, defendant asserts the following italicized
statements by the prosecutor were a misstatement of the law: “Accident.
Here we have heard multiple defenses as to what the defendant wants us to
believe. We have heard those multiple defenses, and in the end he has
landed on ‘accident.’ The legal excuse for accident is defendant was doing a
lawful act in a lawful way. That doesn’t apply here. By his own admission,
he was doing an unlawful act just carrying the gun with him. He was doing
an unlawful act in just possessing the gun at home before he left that day.

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He’s doing an unlawful act if he just had ammunition in his pocket. So that
doesn’t apply.”
Although defendant asserts the prosecutor’s statement that “possessing
a firearm made [defendant’s] act unlawful, and negated the defense of
accident” was legally incorrect, he cites no authority in support of that claim.
In any case, even assuming the prosecutor’s statements were inaccurate,
defendant has not demonstrated prejudice. The court properly instructed the
jury on the defense of accident4 and instructed the jury to follow the court’s
instructions, not the argument of counsel. Furthermore, there was
substantial evidence that defendant’s conduct at the time of, and after, the
shooting was inconsistent with an accidental shooting. The video showed
him, immediately after the gun shot and before Thomas even hit the ground,
jogging from the scene. He then disposed of his clothes and the gun, washed
himself with bleach, and later lied to police about being at the scene at all.
Defendant next claims the prosecutor misstated the law on the
intimidation of a witness. He asserts the following was a false statement of
the law: “The defendant expressing hope that she not get served with a
subpoena is discouraging her from coming to court.” However, defendant has
lifted this comment out of context. During rebuttal, the prosecutor explained
the law of dissuading a witness, stating: “The jury instruction reads that
attempting to discourage someone from coming to court and giving testimony
is enough. The defendant at least in jail call number 80 at least discouraged
her from coming. It didn’t have to work. He didn’t have to threaten her. He
didn’t have to hurt her. It actually doesn’t matter if she was so upset with

4 The jury was instructed an accident excusing a homicide is defined
as: “1. The defendant was doing a lawful act in a lawful way. 2. The
defendant was acting with usual and ordinary caution; and 3. The defendant
was acting without any unlawful intent.”

13
the government for arresting her that that’s why she chose not to testify, not
for that instruction. All that matters is that he attempted to just discourage
her. That’s enough. [¶] So why is he going so hard to deny he tried to
discourage her when it’s black and white? It’s easy to see. . . . Because
consciousness of guilt. . . . [¶] . . . [I]f she had the evidence that exonerated
him, if she knew that it was an accident, why would he be keeping her out of
court? Because it wasn’t an accident, because it was a cold-blooded murder,
and now he’s caught red-handed. That’s why he wants to keep her out of
court. [¶] The defendant expressing hope that she not get served with a
subpoena is discouraging her from coming to court.” In context, the
prosecutor’s statement was legally accurate, and in conformance with the
instruction given on intimidation of a witness. The prosecutor fully explained
during her opening argument the elements of witness intimidation and noted
the evidence supporting it. She noted “Element one: Defendant maliciously
tried to prevent or discourage [J.W.] from attending or giving testimony and
intended to do so. Element two: [J.W.] was a witness. [¶] And element
three: Defendant knew he was trying to prevent or discourage [J.W.] from
attending or giving testimony and intended to do so.” The prosecutor then
stated defendant “literally admitted all three of those elements. Yes, when I
told her to get out of the Bay Area, yes, I was trying to make sure you didn’t
find her. Yes, I was trying to make sure she didn’t get served. Yes, I didn’t
want her to get on the stand and testify.” The prosecutor’s statement in the
rebuttal portion of closing argument was not, in the context of the entire
closing, an assertion that defendant could be convicted of witness
intimidation based solely on his statement that he hoped J.W. would not be
served with a subpoena.

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 As to involuntary manslaughter and implied malice, defendant
maintains the prosecutor “confused the jury into believing that the
prosecution did not need to prove that [defendant] acted with an intent to
kill.”5 He identifies the following statements made regarding the jury
instructions on the prosecution’s burden: “But it doesn’t say I have a burden
of proving that [the killing] was not invol[untary manslaughter]. I have a
burden of proving that it was not excused. But we looked at the accident
instruction. His own attorney concedes that this is not an excused homicide.
So that burden has been met. But involuntary manslaughter and murder are
mutually exclusive terms.[6] That means they cannot both be true. Because
the defendant acted with malice either because he had intent to kill, or
because he acted with conscious disregard.”
Defendant has not identified any portion of the prosecutor’s statements
that misstated the law. She correctly stated the prosecution had the burden
of proving beyond a reasonable doubt every element of murder and had the
burden of proving the killing was not excused. She reiterated the prosecution
has the burden to prove malice by either intent to kill, or acting with
conscious disregard of human life. And she correctly observed that nothing in
the involuntary manslaughter instruction indicated the prosecution had the
burden to prove the killing was not involuntary manslaughter. 7

5 In another part of his opening brief, defendant concedes the “manner
of the killing itself did show an intent to kill.” (Italics omitted.)
6 “Involuntary manslaughter is ‘the unlawful killing of a human being
without malice aforethought and without an intent to kill.’ ” (People v.
Rogers (2006) 39 Cal.4th 826, 884.)
7 Indeed, as the prosecutor explained, by meeting the burden of
proving the elements of murder, the prosecution necessarily “disproved”
involuntary manslaughter.

15
 Nor has defendant identified any aspect of the prosecutor’s statements
that was confusing or suggested the “prosecution did not need to prove that
[defendant] acted with an intent to kill.” On the contrary, the prosecutor’s
statements mirrored the jury instructions. The jury was instructed the
prosecution had the burden to prove, beyond a reasonable doubt, all the
elements of murder. The instruction specified, “The People have the burden
of proving . . . that the killing was first degree murder rather than a lesser
crime.” “When a person commits an unlawful killing but does not intend to
kill and does not act with conscious disregard for human life, then the crime
is involuntary manslaughter.”
Defendant claims the prosecutor misstated the law on implied malice
when she stated: “And whether or not you all agree that that’s enough to say
he premeditated and deliberated his murder is a separate issue. But he did
intentional actions in conscious disregard for human life. If he points a
loaded gun at a human being, that is implied malice murder even if it just
went off without him touching the trigger. If he’s just doing gun play where
he’s trying to scare someone or mess with someone, or he thinks it’s funny
and pretending to shoot somebody and he doesn’t even pull the trigger, that
is implied malice murder because he’s doing intentional actions with
conscious disregard to the consequences to human life.” Defense counsel’s
objection was overruled, the court stating, “as I said before, if it conflicts with
my instructions, you’re the judge of the facts and you must accept the law I
have [given]. If you feel it conflicts with my instructions, you’re to disregard
it.”
The prosecutor continued, “I submit to you that the defendant had a
conscious disregard for human life, not just indifference. This is conscious
disregard. Being that close to another human being with a loaded gun is

16
conscious disregard. When you point it at him that’s enough, whether or not
you touched the trigger, but we know he did. [¶] The defense says that the
defendant need only intentionally pull the trigger. That’s not the law. The
act doesn’t have to be pulling the trigger. The act can be pointing it at
somebody.” This time the court sustained defense counsel’s objection that
this misstated the law.
The prosecutor continued, “Pointing a loaded gun at another human
being when you know it’s loaded and you know the safety is not on is
conscious disregard for human life. That act, even if someone else pulls the
trigger, is enough for murder.” Defense counsel again objected, and the court
stated: “That’s an interpretation. I’ll let you decide that. Follow the
instructions. You can listen to the arguments, but follow the instructions.”
Defendant now claims the “prosecutor misstated the law by stating
that . . . simply . . . showing that [defendant] was playing with the gun or was
aiming the gun, even if [defendant] did not pull the trigger,” was conscious
disregard. (Italics omitted.)

The law, however, is more generous than defendant asserts. “ ‘Even if
the act results in a death that is accidental . . . the circumstances
surrounding the act may evince implied malice.’ ” (People v. McNally (2015)
236 Cal.App.4th 1419, 1425.) “It is settled that brandishing a loaded firearm
at a person is an act dangerous to human life.” (Ibid.) “Although a jury may
determine, under the circumstances of a particular case, that a defendant’s
brandishing of a firearm did not pose a sufficient danger to human life to
establish that the defendant acted with malice, in other circumstances the
act of brandishing a firearm may be sufficiently dangerous to human life to
support a finding of malice.” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 96.)
Accordingly, the jury “was obligated to determine whether: (1) defendant’s

17
drawing his loaded firearm, while facing the victim at point-blank range, was
an intentional act; (2) the natural consequences of that act were dangerous to
human life; and (3) the act was performed with knowledge of the danger to,
and conscious disregard for, human life.” (Id. at pp. 111–112.)
Likewise in People v. Boatman (2013) 221 Cal.App.4th 1253, 1263, the
court concluded the “jury could have easily concluded that pointing a loaded
gun at someone and pulling the hammer back is an intentional act, the
natural consequences of which are dangerous to human life, and that
defendant deliberately did so with knowledge of such danger and with
conscious disregard for [the victim’s] life, even if, as defendant said, ‘it was
just all in play.’ ”
Defendant also maintains the prosecutor prejudicially disparaged
defendant and defense counsel. He cites two asserted instances of
misconduct: one in which the prosecutor stated in closing argument that
defendant “arrogantly pointed out that the ballistics were inconclusive,” and
one in which the prosecutor stated in response to defense counsel’s closing
argument that, “One of my favorite things is when privileged grown men tell
me my thought process.”
“Closing argument may be vigorous and may include opprobrious
epithets when they are reasonably warranted by the evidence.” (People v.
Sandoval (1992) 4 Cal.4th 155, 180 (Sandoval). “ ‘The prosecutor is
permitted to urge, in colorful terms, that defense witnesses are not entitled to
credence . . . [and] to argue on the basis of inference from the evidence that a
defense is fabricated. . . .’ ” (People v. Boyette (2002) 29 Cal.4th 381, 433.)
“[T]he use of derogatory epithets to describe a defendant is not necessarily
misconduct.” (People v. Friend (2009) 47 Cal.4th 1, 32; ibid. [defendant
described as “ ‘living like a mole or the rat that he is’ ”].) Here, simply calling

18
defendant “arrogant” was a colorful term within the bounds of acceptable
argument.
As for the asserted disparaging comment about defense counsel,
defendant cites no authority supporting his claim that calling someone
“privileged” constitutes misconduct. Moreover, the prosecutor made the
comment in response to defendant’s closing argument, wherein defense
counsel asserted the prosecutor decided not to subpoena J.W., but to have her
arrested and brought to court, in order “to punish her and to break her will.”
While the prosecutor’s comment that “One of my favorite things is when
privileged grown men tell me my thought process,” was perhaps unduly
snide, it did not rise to the level of misconduct.
Defendant next claims the prosecutor misstated the evidence and
argued facts not in evidence by suggesting the weight of a gallon of milk was
what it would take to pull the trigger on defendant’s gun.
A criminalist testified regarding the type of gun used to kill the victim.
He explained that the type of gun used “comes out of the factory with a seven
to ten[-]pound trigger pull [and] brushing the trigger is not seven to ten
pounds. Seven to ten pounds is basically hanging up to two bags of sugar on
that trigger before it will pull.”
In closing argument, the prosecutor stated, “That makes express
malice, intent to kill, pretty easy, particularly when as described by the
expert the weight at which it takes to pull that trigger is up to two five-pound
bags of sugar. I have two four-pound bags of sugar. They don’t even sell five-
pound bags of sugar.” She further stated “after [defendant] moved closer [to
the victim] and took out the gun, he pointed it at his head and then he pulled
the trigger with enough force to be two five-pound let alone two four-pound
bags of sugar.”

19
 Defense counsel did not object to the prosecutor’s demonstrative use of
two four-pound bags of sugar, but suggested it was a “set up.” “Where are the
two sacks of sugar? Ah, they’re down there. Do you think for a minute that
wasn’t set up? As [the expert] testified about the sacks of sugar, and voila,
we’ve got the sacks of sugar on the table.”
In rebuttal, the prosecutor stated, “And yes, I bought the sugar at
Safeway 10:00 o’clock on Sunday in case you’re wondering. I put it in the bag
because this is the action that it takes to pull that firearm. You know what
else weighs the same as a bag of sugar? A gallon of milk.”
While defendant does not dispute that using the sugar as a “visual aid
. . . may not have been objectionable,” he maintains the prosecutor’s
statement about the weight of a gallon of milk was misconduct because
“[t]here was no evidence as to the weight of a gallon of milk.”
“ ‘ “[S]tatements of facts not in evidence by the prosecuting attorney in
his argument to the jury constitute misconduct.” ’ ” (People v. Rivera (2019)
7 Cal.5th 306, 335.) A prosecutor, however, “ ‘ “ ‘is given wide latitude during
argument. The argument may be vigorous as long as it amounts to fair
comment on the evidence, which can include reasonable inferences, or
deductions to be drawn therefrom. [Citations.] It is also clear that counsel
during summation may state matters not in evidence, but which are common
knowledge or are illustrations drawn from common experience, history or
literature.’ ” ’ ” (Hill, supra, 17 Cal.4th at p. 819.) Here, the prosecutor’s
reference to a gallon of milk being about the same weight as a bag of sugar
certainly referred to a matter of common knowledge. In any case, the passing
reference to the weight of a gallon of milk was harmless.
Lastly, defendant claims the prosecutor “violated [his] right to attorney
client privilege during her closing argument.” During rebuttal, the

20
prosecutor stated, in reference to the testimony of Jackie W., “He also didn’t
say he ever heard anything about an accident because the defendant hadn’t
come up with that lie yet because this wasn’t an accident, and neither lawyer
even knew to ask it.” (Italics added.) The prosecutor also stated, “Did you
once hear the defendant even say, quote, ‘I told my lawyer it was an
accident?’ No. The only time the defendant said that is up on the stand. So
the only thing his lawyer can argue is my client testified he told me from the
beginning, but there’s no evidence to corroborate that because the defendant
never said it until we were well into this trial.” (Italics added.)
Defendant asserts the italicized portions of the closing statement
directed the jury to “infer guilt on the murder charge because [defendant] did
not reveal the substance of what would have been a privileged conversation
with his attorney.” Relying on People v. Velasquez-Palacios (2015)
235 Cal.App.4th 439 (Velasquez-Palacios), he maintains this was
“[p]rosecutorial interference with [the attorney/client] privilege.”
In Velasquez-Palacios, the prosecutor provided defense counsel with an
English translation of the police interrogation of defendant, which had been
conducted in Spanish. (Velasquez-Palacios, supra, 235 Cal.App.4th at
p. 442.) The prosecutor fabricated and added the following two additional
lines to the translation: “ ‘[DETECTIVE]: You’re so guilty you child molester.
[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.’ ”
(Id. at pp. 442–443.) After receiving the translated transcript, defense
counsel advised him to make an offer to settle the case. (Id. at p. 443.) After
defense counsel asked the prosecutor for “ ‘the exact CD reviewed by [the
People’s] transcriber/interpreter,’ ” the prosecutor admitted to falsifying the
transcript. (Ibid.)

21
 Defense counsel then moved to dismiss the charges based on
prosecutorial misconduct. In its response to the motion, the prosecution
claimed the fabrication was a “ ‘jest,’ ” that defense counsel had told him
defendant did not have a viable defense, and the defendant had not been
prejudiced. (Velasquez-Palacios, supra, 235 Cal.App.4th at p. 443.) The
public defender’s office removed defense counsel from the case, citing “the
appearance of impropriety created by [prosecutor’s] allegation” that defense
counsel stated defendant did not have a valid defense, as well as the
“complexity that would arise from having [defense counsel] work on the case
after testifying about privileged matters in the upcoming evidentiary
hearing.” (Ibid.)
The trial court dismissed the charges against defendant, finding the
prosecution had failed to prove the fabrication was a joke, but “even if it had
been done in jest, [the prosecutor’s] dissemination of the fraudulent
confession during plea negotiations was ‘egregious, outrageous, and . . .
shocked the conscience.’ ” (Velasquez-Palacios, supra, 235 Cal.App.4th at
p. 444.) The trial court concluded the misconduct “ ‘diluted the protections
coming with the right to counsel’ and ran the risk of fraudulently inducing
defendant to enter a plea and forfeit his right to a jury trial.” (Ibid.)
The circumstances here are in no way comparable to those in
Velasquez-Palacios. Nothing about the prosecutor’s rebuttal “ ‘diluted the
protections’ ” of defendant’s right to counsel. Indeed, the prosecutor’s
comment regarding whether defendant ever said he told his lawyer the
killing was an accident, was in response to defense counsel’s closing
argument in which he raised the issue of defendant’s testimony about what
he told his attorney. Defense counsel stated, “And it’s been pointed out
repeatedly incorrectly that my client just kind of cooked up this accidental

22
discharge defense over the weekend after the prosecution case had rested.
That’s a suggestion. But if you recall during the cross-examination of my
client, that was suggested to him and he said I told my attorney from day
one.” (Italics added.) In rebuttal, the prosecutor correctly pointed out that
defendant did not say that, noting “Did you once hear the defendant even say,
quote, ‘I told my lawyer it was an accident?’ No.”8 (Italics added.)
In sum, defendant has failed to show any instance of prosecutorial
misconduct, and, in any case, any asserted misconduct was not prejudicial.9
Substantial Evidence of Premeditation and Deliberation
Defendant asserts there was insufficient evidence he acted with
premeditation and deliberation and therefore “the prosecutor could prove at
most that he was guilty of second degree murder.
“ ‘ “When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.] We determine “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”
[Citation.] In so doing, a reviewing court “presumes in support of the

8 In that regard, defendant testified only that “I told my lawyer
everything from day one. . . . I wasn’t even going to come here and fight it. I
wasn’t. I was going to tell it all like I’m telling now.”
9 We therefore need not, and do not, reach defendant’s claim that his
counsel was ineffective in failing to object to the asserted instances of
misconduct. (See Strickland v. Washington (1984) 466 U.S. 668, 687-692.)

23
judgment the existence of every fact the trier could reasonably deduce from
the evidence.” ’ ” (People v. Rangel (2016) 62 Cal.4th 1192, 1212–1213, italics
omitted.) “The standard of review is the same . . . where the People rely
primarily on circumstantial evidence.” (People v. Perez (1992) 2 Cal.4th 1117,
1124.)
Defendant, relying on People v. Anderson (1968) 70 Cal.2d 15
(Anderson), maintains the record lacks the three specific categories of
evidence Anderson requires.
In Anderson the court held: “The type of evidence which this court has
found sufficient to sustain a finding of premeditation and deliberation falls
into three basic categories: (1) facts about how and what defendant did prior
to the actual killing which show that the defendant was engaged in activity
directed toward, and explicable as intended to result in, the killing—what
may be characterized as ‘planning’ activity; (2) facts about the defendant’s
prior relationship and/or conduct with the victim from which the jury could
reasonably infer a ‘motive’ to kill the victim, which inference of motive,
together with facts of type (1) or (3), would in turn support an inference that
the killing was the result of ‘a pre-existing reflection’ and ‘careful thought
and weighing of considerations’ rather than ‘mere unconsidered or rash
impulse hastily executed’ [citation]; (3) facts about the nature of the killing
from which the jury could infer that the manner of killing was so particular
and exacting that the defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’
which the jury can reasonably infer from facts of type (1) or (2).” (Anderson,
supra, 70 Cal.2d at pp. 26–27, italics omitted.)
However, “[i]n our Supreme Court’s most recent iteration on the topic,
the court had occasion to point out that the three categories provide ‘one

24
framework for reviewing the sufficiency of the evidence supporting findings of
premeditation and deliberation.’ [Citation.] [¶] The high court has further
cautioned that the Anderson categories are only a set of ‘guidelines’ for
analysis. (People v. Sanchez (1995) 12 Cal.4th 1, 32 [overruled on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22] . . . [‘We have
recently explained that the Anderson factors do not establish normative
rules, but instead provide guidelines for our analysis.’].) [¶] In particular, the
court has emphasized that the three categories themselves do not constitute a
substitute for, or a rewriting of, the actual elements of first-degree murder.
(People v. Thomas (1992) 2 Cal.4th 489, 517 . . . [‘Unreflective reliance on
Anderson for a definition of premeditation is inappropriate. The Anderson
analysis was intended as a framework to assist reviewing courts in assessing
whether the evidence supports an inference that the killing resulted from
preexisting reflection and weighing of considerations. It did not refashion the
elements of first-degree murder or alter the substantive law of murder in any
way.’].)” (People v. Nazeri (2010) 187 Cal.App.4th 1101, 1112–1113, italics &
fns. omitted.)
“ ‘ “ ‘[P]remeditated’ means ‘considered beforehand,’ and ‘deliberate’
means ‘formed or arrived at or determined upon as a result of careful thought
and weighing of considerations for and against the proposed course of
action.’ ” ’ [Citation.] ‘ “An intentional killing is premeditated and deliberate
if it occurred as the result of preexisting thought and reflection rather than
unconsidered or rash impulse.” ’ [Citations.] ‘The true test is not the
duration of time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated judgment may be
arrived at quickly. . . .’ [Citation.] Such reflection may be revealed by
planning activity, motive, and the manner of the killings, among other

25
things.” (People v. Potts (2019) 6 Cal.5th 1012, 1027 (Potts).) “ ‘First degree
willful, deliberate, and premeditated murder involves a cold, calculated
judgment, including one arrived at quickly. . . .’ ” (People v. Nazeri, supra,
187 Cal.App.4th at p. 1113.)
Defendant concedes there was evidence of an intent to kill, stating
“firing a gun at someone’s head shows that the person who fired the shot
intended to kill his target.” He maintains, however, there was “no evidence
of planning activity,” no evidence of a preconceived design to kill Thomas,
and no evidence of motive.
However, evidence that a defendant arrives at the scene carrying a
weapon suggests planning and a preconceived design. (People v. Potts, supra,
6 Cal.5th at p. 1027; People v. Elliot (2005) 37 Cal.4th 453, 471 [“That
defendant armed himself prior to the attack ‘supports the inference that he
planned a violent encounter.’ ”].) Here, defendant arrived at the scene with a
loaded weapon to confront Thomas about what he knew about Esau Davis’s
killing. The evidence of the killing, both testimonial and videotaped, shows
that after defendant spoke with Thomas for a few moments, he pulled out a
gun, pointed it at Thomas’s head and shot him, and left quickly before
Thomas fell to the ground. While this sequence of events happened with
relative speed, the evidence does not show, as defendant claims, that the
shooting was simply a “ ‘sudden random “explosion” of violence.’ ”
Defendant also urges there was no evidence of motive, the second
Anderson category. To the contrary, there was evidence defendant told J.W.
he shot Thomas because Thomas had disrespected him. There is no
requirement that the motive be rational. “ ‘[The] law does not require that a
first degree murderer have a “rational” motive for killing. Anger at the way
the victim talked to him . . . may be sufficient.’ ” (People v. Miranda (1987)

26
44 Cal.3d 57, 87, abrogated on another ground in People v. Marshall (1990)
50 Cal.3d 907, 933, fn. 4.)
In sum, viewed as a whole, there was substantial evidence supporting a
finding of premeditated and deliberate murder.
Fines and Fees
Defendant maintains the imposition of various fees and fines without a
determination of his ability to pay violated his due process rights under
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The trial court
imposed a $10,000 restitution fee (§ 1202.4, subd. (b)), a suspended $10,000
parole revocation fee (§ 1202.45), a $40 per conviction court operations
assessment fee and a $30 per conviction criminal conviction assessment fee.10
In Dueñas, the defendant was a chronically ill, unemployed homeless
woman with cerebral palsy and a limited education who supported her two
children through public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–
1161.) She had lost her driver’s license because of her inability to pay her
juvenile citations and then had acquired three misdemeanor convictions for
driving without a license because the accumulating fines and fees prevented
her from clearing the citations and recovering her license. (Id. at p. 1161.)
She experienced a series of “cascading consequences” due to “a series of
criminal proceedings driven by, and contributing to, [her] poverty,” and she
had already been ordered to pay the charges by the end of her probation
period. (Id. at pp. 1160, 1163–1164.) The Court of Appeal reversed the
challenged assessments, holding “the assessment provisions of Government
Code section 70373 and Penal Code section 1465.8, if imposed without a

10Defendant does not challenge the restitution of $7,500 the court
ordered paid to the Victim’s Compensation Board.

27
determination that the defendant is able to pay, are . . . fundamentally unfair
[and] imposing these assessments upon indigent defendants without a
determination that they have the present ability to pay violates due
process. . . .” (Dueñas, at p. 1168.) It also ordered the trial court to stay the
restitution fine “unless and until the People prove that [the defendant] has
the present ability to pay it.” (Id. at pp. 1172–1173.)
To begin with, defendant’s Dueñas challenge has been forfeited by his
failure to raise it in the trial court. (See People v. Lowery (2020)
43 Cal.App.5th 1046, 1054.)
Furthermore, even if he had preserved the issue, any failure to hold
such a hearing in the instant case was harmless. (See Lowery, supra,
43 Cal.App.5th at p. 1060 [“Nothing in this record suggests [defendants]
might be unable to work, or that they might be ineligible for prison work
assignments. As such, we can infer that they will have the opportunity to
earn prison wages and they can start paying these financial obligations.”];
People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [“We can infer defendant in
this case has the ability to pay the fines and fees imposed upon him from
probable future wages, including prison wages.”]; People v. Johnson (2019)
35 Cal.App.5th 134, 140 [because defendant had “ample time to pay [fine]
from a readily available source of income while incarcerated”].)
Accordingly, there is no merit to defendant’s fallback ineffective
assistance argument—that by failing to raise Dueñas, his counsel was
prejudicially ineffective. “ ‘ “In order to establish a claim of ineffective
assistance of counsel, defendant bears the burden of demonstrating, first,
that counsel’s performance was deficient because it ‘fell below an objective
standard of reasonableness [¶] . . . under prevailing professional norms.’
[Citations.] Unless a defendant establishes the contrary, we shall presume

28
that ‘counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a
matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on
why counsel acted or failed to act in the manner challenged,’ an appellate
claim of ineffective assistance of counsel must be rejected ‘unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.’ [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she
also must show that counsel’s deficiencies resulted in prejudice, that is, a
‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ ” ’ ” (People v. Henderson
(2020) 46 Cal.App.5th 533, 549.) In short, on direct appeal, a defendant must
demonstrate counsel’s failure to object lacked any “rational tactical purpose”
and but for counsel’s lack of objection, there is a reasonable probability the
result would have been different. (People v. Mesa (2006) 144 Cal.App.4th
1000, 1007–1009.) Given the demonstrable lack of prejudice to defendant, his
ineffective assistance claim necessarily fails.
DISPOSITION
The judgment is affirmed.

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 _________________________
Banke, J.

We concur:

_________________________
Humes, P.J.

_________________________
Margulies, J.

A160961, People v. Vines

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