P. v. Regalado CA4/1

Filed 4/11/13 P. v. Regalado CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D060807

Plaintiff and Respondent,

v. (Super. Ct. No. JCF22968)

GUILLERMO MARTINEZ REGALADO,
SR., et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of Imperial County, William D.

Lehman, Judge. Affirmed.

Defendants Guillermo Martinez Regalado, Sr. (Senior) and his son Guillermo

Martinez Regalado, Jr. (Junior) appeal judgments following their jury convictions of first

degree murder and related offenses. On appeal, Senior contends: (1) the trial court

prejudicially erred by instructing the jury it could not find him guilty of a lesser offense

than Junior; (2) the prosecutor committed prejudicial misconduct; and (3) the trial court

erred by not instructing sua sponte on voluntary intoxication as a defense to the two
criminal threat counts against him. In a separate appeal, Junior filed a Wende1 brief,

mentioning possible, but not reasonably arguable, issues as discussed below.

FACTUAL AND PROCEDURAL BACKGROUND

Senior and Junior owned a farming business. On the morning of January 5, 2009,

Senior went to a farm work site intoxicated. At the work site, Senior asked Alberto

Rivera, the supervisor, to lend him some workers for the day. Rivera told him to ask

Javier Garcia. When Senior did so, Garcia refused and told him, "I've had it with you,"

pulled Senior out of his car, and punched him repeatedly in the face. Senior returned

home upset and told his wife, Cecilia Amparan, he had been beaten. Amparan saw blood

in his mouth and his face appeared to have been battered. Senior called Junior, and

discussed the incident. Senior was afraid of Garcia and told Junior they needed to act

before someone was killed. Senior continued to drink throughout the day.2

At 11:30 a.m., Junior purchased rifle ammunition at a sporting goods store. That

afternoon, Senior apparently took an old rifle from a closet in his home and then he,

Junior, and Amparan drove to a ranch, where all three engaged in target practice for

about one hour.

1 People v. Wende (1979) 25 Cal.3d 436 (Wende).

2 At trial, Amparan testified Senior drank about three bottles of whiskey throughout
the day. On redirect examination, Amparan admitted that shortly before trial she met
with a defense investigator to discuss the issue of Senior's consumption of whiskey on the
day of the incident.

2
 At about 7:00 p.m., Amparan drove Junior's truck with Senior, Junior, and Senior's

friend, Jorge Ramirez, as passengers, to an Imperial Valley agricultural field. Junior had

the rifle with him. Senior and Junior told Amparan they were going to talk to Garcia.

Senior, carrying a knife, and Junior, carrying the rifle, got out of the truck and walked

toward a trailer in the field. Rivera, the supervisor, was standing outside the trailer, while

Garcia and Marco Estrada were riding on a tractor in the field picking up boxes. Senior

grabbed Rivera by the shirt, held the knife to him, and pulled him over to some haystacks

near the trailer. As the tractor approached with its headlights on, Senior continued to

hold the knife to Rivera. The tractor pulled up and Estrada began to drive it in reverse

toward the trailer. Garcia was standing on the tractor's step to Estrada's right. Standing

near the haystacks, Junior raised the rifle and fired it at Garcia from a distance of about

two meters, striking him in the abdomen, and causing him to fall from the tractor. Junior

walked up to Garcia, chambered another bullet, pointed the rifle less than one foot from

Garcia's cheek, and shot him again. Senior then released Rivera, walked up to Garcia,

cursed at him, and kicked him three or four times in the head, causing an ear to partially

detach.

Junior made a call on his cell phone and said: "Okay. Come on." Within a few

minutes, Amparan returned in the truck. Senior threatened to kill Rivera if he told

anyone about what happened to Garcia. Senior and Junior threatened to kill Estrada if he

talked. Senior and Junior forced Estrada to help them load Garcia's body onto the bed of

the pickup truck. Senior, Junior, and Amparan left in the truck, drove across some fields,

3
and then dumped Garcia's body in a drainage ditch. Garcia died from two fatal gunshot

wounds.3

After returning home, Amparan washed Senior's clothing. Shortly thereafter,

Senior and Amparan drove to Bakersfield and then Kansas. Senior shaved off his

mustache and stopped dying his hair. A few days after the killing, Rivera, Estrada, and

Ramirez each spoke with a sheriff's investigator and gave their accounts of the incident.

On January 15, 2009, Junior was taken into custody. Junior told the sheriff's

investigator that he and Amparan, but apparently not Senior, drove to the field to confront

Garcia. He admitted he brought along a rifle, but denied holding it when Garcia was

shot. He admitted throwing Garcia's body in the drainage ditch.

After Senior learned Junior had been arrested, he returned to El Centro. On

January 17, 2009, Senior was arrested and told the sheriff's investigator that he (Senior)

shot Garcia. He explained that after Garcia beat him up and threatened him the morning

of January 5, 2009, he bought a rifle from a "cholo" in front of a convenience store. After

practicing shooting the rifle, he went to the field and shot Garcia. Senior said he loaded

Garcia's body onto the truck and later dumped the body in a canal. On returning home,

he realized he still had the rifle, so he drove to Forrester Road and disposed of it. Senior

insisted he was the one who shot Garcia and was responsible for everything.

3 At trial, the medical examiner testified the wound to Garcia's chest was fired from
over two feet away and from his left. The wound to Garcia's head was fired from six to
12 inches away. Garcia's partially amputated ear could have resulted from a kick.

4
 An information charged Junior with first degree murder (Pen. Code, § 187, subd.

(a)),4 and Senior with first degree murder (§ 187, subd. (a)), assault with a deadly

weapon (§ 245, subd. (a)(1)), and two counts of criminal threats (§ 422). The

information was later amended to add weapon-use allegations to the murder charges

against Senior and Junior (§ 12022.53, subds. (b), (c), (d)). A few days before trial,

Senior told Amparan in a taped jail telephone conversation to testify at trial "that she

doesn't know anything."5

At Senior and Junior's joint trial, testimony and other evidence substantially as

described above was presented. Furthermore, Rivera testified he was "sure" Senior was

not intoxicated when Garcia was shot. Although Senior had a wine odor about him,

Senior did not tip or lose his balance at any point during the incident or when he kicked

Garcia. Senior spoke clearly and appeared to be in control of what he was doing.

Estrada also testified Senior was "walking fine" when he walked up to Garcia to kick

him.

The jury found Senior and Junior guilty on all counts and also found true the

weapon-use allegations against Junior. The trial court sentenced Senior to 25 years to life

in prison for first degree murder, plus a consecutive one-year eight-month term for his

4 All statutory references are to the Penal Code.

5 At trial, Amparan testified she did not remember Senior telling her that.

5
assault conviction, for a total term of 26 years eight months to life in prison.6 The court

sentenced Junior to 25 years to life in prison for first degree murder, plus a consecutive

25-year term for the weapon-use allegation, for a total term of 50 years to life in prison.

Senior and Junior timely filed notices of appeal challenging their convictions.

DISCUSSION

SENIOR'S APPEAL

I

Instructions on Aider and Abettor Liability

Senior contends the trial court prejudicially erred by instructing the jury it could

not find him, as an aider and abettor of the murder, guilty of a lesser offense than Junior,

the direct perpetrator of the murder.

A

Murder is an unlawful killing of another committed with malice aforethought.

(People v. Cravens (2012) 53 Cal.4th 500, 507.) Malice may be express or implied.

(Ibid.) Malice is express when the defendant intends to kill and implied when the

defendant deliberately commits an act dangerous to human life and acts with knowledge

of the danger and a conscious disregard for life. (Ibid.) First degree murder, as relevant

in this case, includes willful, deliberate, and premeditated murder and murder committed

6 Pursuant to section 654, the trial court stayed punishment for Senior's two criminal
threat convictions.

6
by lying in wait. (CALCRIM No. 521.) Absent those circumstances, a murder is second

degree.

A defendant may be culpable for a crime as a direct perpetrator or as an aider and

abettor. "All persons concerned in the commission of a crime, . . . whether they directly

commit the act constituting the offense, or aid and abet in its commission, . . . are

principals in any crime so committed." (§ 31; see People v. Mendoza (1998) 18 Cal.4th

1114, 1122-1123.) "Except for strict liability offenses, every crime has two components:

(1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state,

sometimes called the mens rea. [Citations.] This principle applies to aiding and abetting

liability as well as direct liability. An aider and abettor must do something and have a

certain mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).) In

general, "an aider and abettor's mental state must be at least that required of the direct

perpetrator. 'To prove that a defendant is an accomplice . . . the prosecution must show

that the defendant acted "with knowledge of the criminal purpose of the perpetrator and

with an intent or purpose either of committing, or of encouraging or facilitating

commission of, the offense." [Citation.] When the offense charged is a specific intent

crime, the accomplice must "share the specific intent of the perpetrator"; this occurs when

the accomplice "knows the full extent of the perpetrator's criminal purpose and gives aid

or encouragement with the intent or purpose of facilitating the perpetrator's commission

of the crime." [Citation.]' " (Id. at p. 1118.) Therefore, an aider and abettor's criminal

liability "is vicarious only in the sense that the aider and abettor is liable for another's

7
actions as well as that person's own actions." (Ibid.) In contrast, an aider and abettor's

"mental state is [his or] her own; [the aider and abettor] is liable for [his or] her mens rea,

not the other person's [i.e., the direct perpetrator's mens rea]." (Ibid.) Because the mens

rea of a direct perpetrator and an aider and abettor floats free from the other's mens rea,

the level of guilt of one also floats free from the other's. (Id. at p. 1119.) Accordingly,

McCoy concluded: "If the mens rea of the aider and abettor is more culpable than the

actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the

actual perpetrator." (Id. at p. 1120.)

In People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 (Samaniego), the

court applied McCoy's reasoning to conclude "an aider and abettor's guilt may also be less

than the perpetrator's, if the aider and abettor has a less culpable mental state." (See also

People v. Nero (2010) 181 Cal.App.4th 504, 513-518.) An "aider and abettor may be

found guilty of lesser homicide-related offenses than those the actual perpetrator

committed." (Id. at p. 507.) Although an aider and abettor's guilt may be lesser or

greater than the direct perpetrator's guilt, "[g]enerally, a person who is found to have

aided another person to commit a crime is 'equally guilty' of that crime." (People v.

Lopez (2011) 198 Cal.App.4th 1106, 1118.)

B

The prosecution's theory on the murder charge was that Junior was the shooter,

and thus the direct perpetrator, and Senior aided and abetted Junior in committing the

murder. Senior's defenses to the murder charge were voluntary intoxication and

8
provocation. The trial court instructed the jury on first and second degree murder. The

court also instructed on the lesser offense of voluntary manslaughter based on

provocation (i.e., sudden quarrel or heat of passion) and imperfect self-defense. The

court also instructed on voluntary intoxication, which the jury could consider "in deciding

whether [Senior] acted with an intent to kill, or . . . with deliberation and premeditation."

The trial court instructed with CALCRIM No. 400 on aiding and abetting, stating:

"A person may be guilty of a crime in two ways. One, he or she may
have directly committed the crime. I will call that person the
perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. [¶] A person is
guilty of a crime whether he or she committed it personally or aided
and abetted the perpetrator."

The court further instructed with CALCRIM No. 401, stating:

"To prove that the defendant is guilty of a crime based on aiding and
abetting that crime, the People must prove that:

"1. The perpetrator committed the crime;

"2. The defendant knew that the perpetrator intended to commit the
crime;

"3. Before or during the commission of the crime, the defendant
intended to aid and abet the perpetrator in committing the crime; [¶]
AND

"4. The defendant's words or conduct did in fact aid and abet the
perpetrator's commission of the crime.

"Someone aids and abets a crime if he or she knows of the
perpetrator's unlawful purpose and he or she specifically intends to,
and does in fact, aid, facilitate, promote, encourage, or instigate the
perpetrator's commission of that crime.

9
 "If all of these requirements are proved, the defendant does not need
to actually have been present when the crime was committed to be
guilty as an aider and abettor.

"If you conclude that defendant was present at the scene of the crime
or failed to prevent the crime, you may consider that fact in
determining whether the defendant was an aider and abettor.
However, the fact that a person is present at the scene of a crime or
fails to prevent the crime does not, by itself, make him or her an
aider and abettor."

On July 6, 2011, during deliberations, the jury sent a note (Note 1) to the trial

court, asking: "If we decide on a charge for Jr. [and] decide Sr. aided [and] abetted[,] is

Sr. guilty to the same degree?" Over Senior's objection, the trial court replied to Note 1,

instructing the jury: "I would direct your attention to instructions 400 and 401. If you

believe that the elements of aiding and abetting have been proven, Senior is guilty to the

same degree as Junior."

On July 7, Senior filed an emergency motion to reconsider jury instructions and

reinstruct the jury, citing McCoy and Samaniego. Senior argued the court's reply to Note

1 was based on a prior version of CALCRIM No. 400, which misled the jury to believe

that if he aided and abetted Junior, he must be found "equally guilty" of the same crime

as Junior. He argued that if the jury found he aided and abetted Junior in killing Garcia,

the law allowed it to find him guilty of a lesser degree of homicide than Junior. He

argued the jury should be expressly so instructed. Later that day, Senior filed an

amended motion. The trial court denied his motion. The court explained it did not read

any portion of CALCRIM No. 400, but merely referred the jury to CALCRIM Nos. 400

and 401, the current versions of those instructions given by the court before counsel's

10
closing arguments. It did not use the words "equally guilty." Furthermore, the court

explained the jury did not ask it whether an aider and abettor may be found guilty of a

lesser level of homicide than the perpetrator.

On July 8, the jury sent another note (Note 2) to the trial court, asking: "If we

agree that Sr. aided [and] abetted in the commission of the crime[,] would provocation

and/or intoxication be a legal defense for him (Sr.)?" The court replied to Note 2,

instructing the jury: "The instructions on intoxication and provocation apply to both

defendants."7

On July 11, the jury sent another note (Note 3) to the trial court, asking: "Does

provocation only apply to the person [who] pulls the trigger?" The court believed Note 3

was a restated version of Note 2. With counsel's concurrence, the court replied to Note 3,

instructing the jury: "Provocation applies equally to both the shooter and [an] aider and

abettor." Less than one hour later, the jury returned its verdicts finding both Senior and

Junior guilty of first degree murder.

C

Senior contends the trial court prejudicially erred in replying to the jury's notes

because the court, in effect, instructed the jury that if it found he aided and abetted Junior,

then it was required to find him (Senior) guilty of the same degree of homicide as Junior.

7 The trial court rejected Senior's proposal that the court instead instruct the jury:
"[I]f the jury agrees that Senior aided and abetted in the commission of a crime, the
instructions on provocation and intoxication still apply to Senior." The court noted its
instruction was similar to the one suggested by Senior.

11
Senior argues the court therefore instructed the jury, in effect, that it could not find him,

as an aider and abettor of the murder, guilty of a lesser offense than Junior, the direct

perpetrator of the murder.

We conclude the trial court did not err in instructing the jury on aiding and

abetting. Senior does not challenge on appeal the original instructions given the jury

before its deliberations began, which included the current versions of CALCRIM Nos.

400 and 401 on aiding and abetting. Rather, he points to the court's reply to Note 1 as

constituting instructional error. As discussed above, Note 1 asked: "If we decide on a

charge for Jr. [and] decide Sr. aided [and] abetted[,] is Sr. guilty to the same degree?"

The court replied: "I would direct your attention to instructions 400 and 401. If you

believe that the elements of aiding and abetting have been proven, Senior is guilty to the

same degree as Junior." Contrary to Senior's assertion, the court's reply was not an

incorrect statement of aiding and abetting principles. Generally speaking, "a person who

is found to have aided another person to commit a crime is 'equally guilty' of that crime."

(People v. Lopez, supra, 198 Cal.App.4th at p. 1118.) Alternatively stated, if a person

aids and abets another's commission of first degree murder, that aider and abettor is

generally guilty to the same degree as the direct perpetrator (i.e., first degree murder).

That principle logically follows from CALCRIM No. 401, which sets forth the mens rea

requirement for aiding and abetting, stating in pertinent part: "Before or during the

commission of the crime, the defendant intended to aid and abet the perpetrator in

committing the crime . . . [and] [¶] . . . [¶] . . . knows of the perpetrator's unlawful

12
purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote,

encourage, or instigate the perpetrator's commission of that crime." (Italics added.)

Because the court's reply to Note 1 specifically referred the jury to CALCRIM No.

401 (and No. 400), that standard instruction must be read together with the court's

additional instruction that "[i]f you believe that the elements of aiding and abetting have

been proven, Senior is guilty to the same degree as Junior." Therefore, when read as a

whole, the court's instructions replying to Note 1 informed the jury that Senior is guilty of

the same degree offense as Junior if Senior aided and abetted Junior's commission of that

degree of offense, which necessarily would require a finding Senior specifically intended

to aid and abet Junior's commission of that degree of offense. If the jury were to find

Junior guilty of first degree murder and then found Senior aided and abetted Junior's

commission of that offense by applying the court's instructions on aiding and abetting

(e.g., which included the requirement of the specific intent to aid and abet), then the jury

must also find Senior guilty of first degree murder. The court's instructions were correct

general statements of the law on aiding and abetting.8

8 It may have been preferable for the trial court to avoid any possible
misinterpretation of its instructions by specifically instructing the jury that an aider and
abettor may be guilty of an offense greater than, equal to, or lesser than the offense
committed by the direct perpetrator depending on the intent or other mental state of the
aider and abettor. (See, e.g., McCoy, supra, 25 Cal.4th at pp. 1117-1122; Samaniego,
supra, 172 Cal.App.4th at p. 1164; People v. Nero, supra, 181 Cal.App.4th at pp. 507,
513-518; People v. Lopez, supra, 198 Cal.App.4th at p. 1118.) To the extent Senior
requested the court to instead instruct the jury that if it found he aided and abetted Junior,
it could find him guilty of a lesser degree of offense, that modification would constitute
an improper pinpoint instruction that would favor him by omitting language stating he
could also be found guilty of the same or a greater degree of offense as Junior.
13
 Nevertheless, to the extent the court's reply to Note 1 could have been

misinterpreted by jurors as stating the jury was required to find Senior guilty of the same

degree of offense as Junior even if Senior lacked the specific intent required to aid and

abet that degree of offense, the court's original instructions, along with its subsequent

replies to Notes 2 and 3, clarified any ambiguity, prevented a misinterpretation, and

properly guided the jury to apply the correct standard for aiding and abetting liability.

Notes 2 and 3, quoted above, asked the court whether the defenses of provocation and/or

intoxication could apply to Senior if the jury found he aided and abetted Junior's

commission of the crime or whether those defenses applied only to the shooter (i.e.,

direct perpetrator). The court replied to those notes by instructing the jury that the

instructions on the defenses of provocation and intoxication applied to both the shooter

and an aider and abettor. Therefore, the court, in effect, instructed the jury that the

defenses of provocation and/or intoxication may be available to an aider and abettor (e.g.,

Senior) regardless of whether it found the direct perpetrator (e.g., Junior) had those

defenses. Contrary to Senior's assertion, those instructions did not suggest to the jury that

the defenses of provocation and intoxication applied only to both defendants or neither

defendant and therefore could not apply to one defendant and not the other. By properly

instructing the jury that the defenses of provocation and intoxication were available to

Senior if he aided and abetted Junior, the court prevented any misinterpretation of the

instructions by the jury that would have led it to believe Senior could not assert those

defenses to potentially be found guilty of a lesser degree of offense than Junior. Reading

14
the trial court's instructions as a whole, we conclude the jury was correctly instructed on

aiding and abetting.

Assuming arguendo the trial court erred by replying to Note 1 and instructing the

jury that if Senior aided and abetted Junior, he must be found guilty of the same degree of

offense, we nevertheless would conclude that error was harmless even under the standard

of Chapman v. California (1967) 386 U.S. 18, 24. (Cf. Samaniego, supra, 172

Cal.App.4th at p. 1165 [applying Chapman harmless error standard].) To the extent that

instruction may have led the jury to believe that if it found Senior aided and abetted

Junior, it could not find him guilty of a lesser degree of offense, the court's original

instructions, along with its replies to Notes 2 and 3, disabused the jury of that belief, as

discussed above. The court properly instructed the jury on aiding and abetting liability

with CALCRIM Nos. 400 and 401 and further instructed the jury that the instructions on

the defenses of provocation and intoxication applied to Senior if it found he aided and

abetted Junior's commission of the crime. Reading the instructions as a whole, the jury

knew that to find Senior guilty of first degree murder it had to consider Senior's

individual state of mind and conclude he knew about and shared Junior's intent to commit

first degree murder (i.e., premeditated and deliberate murder or murder by lying in wait).

Furthermore, the jury in this case clearly did not consider the court's reply to Note

1 as a definitive statement that if it found Senior aided and abetted Junior, it was required

to find him guilty of the same degree of offense as Junior. Rather, the jury continued

thereafter to consider whether Senior had any defenses to the first degree murder charge

15
if he aided and abetted Junior. The jury twice asked the court whether the defenses of

provocation and intoxication could apply to Senior if he aided and abetted Junior. If

those defenses were available and found to apply to Senior, Senior could not be found

guilty of the same degree of offense as Junior (i.e., first degree murder). Therefore,

because the court's instructions, when read as a whole, were correct and the jury

continued to consider, after the court's reply to Note 1, potential defenses Senior may

have if it found he aided and abetted Junior, any error in the court's reply to Note 1 was

harmless beyond a reasonable doubt. It is not reasonably possible the jury used the

court's reply to Note 1 to find Senior guilty of first degree murder solely because he

assisted Junior and without also finding Senior had the requisite mental state for aiding

and abetting Junior's first degree murder. (Chapman v. California, supra, 386 U.S. at

p. 24; cf. Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166 [concluded aiding and

abetting instructional error was harmless under Chapman standard].)

None of the cases cited by Senior are apposite to this case or otherwise persuade

us to reach a contrary conclusion. People v. Nero, supra, 181 Cal.App.4th 504, cited by

Senior, involved both different instructions and different questions by the jury. In Nero,

the court gave a prior version of instructions on aiding and abetting (i.e., CALJIC No.

3.00), stating in part that "[e]ach principal, regardless of the extent or manner of

participation, is equally guilty." (Nero, at p. 510.) During deliberations, the jury asked

questions reflecting confusion whether an aider and abettor could have a less culpable

state of mind than the direct perpetrator. (Id. at pp. 507, 509-513.) The jury asked

16
whether an aider and abettor could bear less criminal responsibility than the direct

perpetrator. (Id. at p. 511.) In reply, the trial court reread the original instructions on

aiding and abetting, including the language quoted above using the words "equally

guilty." (Id. at p. 512.) Nero concluded the trial court prejudicially misinstructed the jury

by twice rereading CALJIC No. 3.00 in response to the jury's questions. (Id. at pp. 518-

520.) Because the trial court in this case instructed on aiding and abetting using the

current version of CALCRIM Nos. 400 and 401 and the jury did not ask whether it could

find an aider and abettor guilty of a lesser degree of offense than the direct perpetrator,

Nero is inapposite to this case.

II

Prosecutorial Misconduct

Senior contends the prosecutor committed prejudicial misconduct during closing

argument by stating his counsel lied and arguing the jury should not be hoodwinked by

his counsel.

A

In closing argument, Senior's counsel argued in part the law required that "the

prosecution's case has to be constructed piece by piece of individual facts, and each of

those individual facts have to be proven beyond a reasonable doubt. That is their

burden." His counsel further argued that "you can only reach the ultimate conclusion if

all the facts supporting that ultimate conclusion of guilt . . . is supported by facts that

have been proven beyond a reasonable doubt."

17
 Regarding the prosecution's evidence showing Senior aided and abetted Junior in

killing Garcia, his counsel argued: "So we're left to rely on Alberto Rivera as to whether

or not my client was aiding and abetting in this crime." He further argued Rivera's

testimony was "the only evidence we have of actions that [Senior] might have taken

before or during the commission of the crime that would aid or abet the perpetrator." He

argued there may have been more facts showing Senior aided and abetted the crime, "but

we didn't hear them."

In rebuttal, the prosecutor argued:

"We just heard [Senior's counsel] talk quite a bit about the concept
of aiding and abetting. And [he] gets up here and says that the
prosecution is exclusively relying on Alberto Rivera, the foreman
who was there who saw what happened that night, that we are
apparently relying exclusively on Alberto Rivera to establish the
theory that [Senior] aided and abetted in the commission of a crime,
and that, ladies and gentlemen, is a lie. We are not relying
exclusively on the testimony of Alberto Rivera for that or for
anything else for that matter. We are relying on the totality of the
evidence that has been presented on this case, on the whole of the
evidence that has been presented in this case.

"And on that note, [Senior's counsel] got up here and said to you that
the prosecution is required to prove each and every fact that is
alleged in a case, and that's not true either. That's a lie. The truth is
that the prosecution is required to prove the allegation beyond a
reasonable doubt. And the allegation, ladies and gentlemen, is
different from each and every fact that you hear about in this case.
The allegation in this case is essentially the charge in this case, and
the charge in this case is first-degree murder." (Italics added.)

The prosecutor later argued: "[Senior] clearly wasn't so drunk that he didn't know what he

was doing. [¶] He didn't even know what he was doing when he arrived at the field that

night is essentially what [Senior's counsel] got up here and eloquently suggested to you,

18
couching it in those legal terms, that legal jargon, that defense is trying to hoodwink you

into believing that that's the truth. Don't fall for the head fake." (Italics added.) After

challenging Senior's imperfect self-defense claim, the prosecutor argued: "So what's left?

Excuses. That's all that's left in this case for them is a whole bunch of excuses. The

defense throws up a series of excuses, they fling them up against the wall, and they hope

that maybe one of those excuses is going to stick." (Italics added.) Continuing on that

theme, the prosecutor argued: "What's interesting about these excuses is that they really

don't care if you believe them or not. They don't care. They just want to throw them all

up there and hope that these excuses make you start doubting yourself, doubting your

thought process, doubting your conclusions so that they're able to create reasonable

doubt." (Italics added.)

During the next recess, out of the jury's presence Senior's counsel objected to the

above arguments by the prosecutor. His counsel argued the prosecutor asserted he

(Senior's counsel) was lying and trying to "hoodwink," or trick, the jury. The trial court

initially found Senior's objections were waived as not timely made. In any event, the

court concluded the prosecutor's arguments did not accuse the defense of lying to the jury

or call Senior's counsel a liar. Rather, the court believed the thrust of the prosecutor's

arguments was that the arguments of Senior's counsel were incorrect. Likewise, the court

concluded the prosecutor's use of the term "hoodwinked" was "just . . . a strenuous

argument advising the jury that the defense is unfounded. And I don't view it as

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equivalent of calling counsel a name or impugning the integrity of the defense."

Accordingly, the court overruled Senior's objections.

B

Under federal constitutional law, "[i]mproper remarks by a prosecutor can ' "so

infect[] the trial with unfairness as to make the resulting conviction a denial of due

process." ' [Citations.] Under state law, a prosecutor who uses deceptive or

reprehensible methods to persuade either the court or the jury has committed misconduct,

even if such action does not render the trial fundamentally unfair." (People v. Frye

(1998) 18 Cal.4th 894, 969.) "[A]s a general rule, to preserve a claim of prosecutorial

misconduct, the defense must make a timely objection and request an admonition to cure

any harm." (Ibid.)

" 'It is settled that 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.' " (People v.

Wharton (1991) 53 Cal.3d 522, 567, quoting People v. Sassounian (1986) 182

Cal.App.3d 361, 396.) "A prosecutor may 'vigorously argue his case and is not limited to

"Chesterfieldian politeness" ' [citation], and he may 'use appropriate epithets warranted

by the evidence.' " (People v. Fosselman (1983) 33 Cal.3d 572, 580.) Nevertheless,

"[c]asting uncalled for aspersions on defense counsel directs attention to largely

irrelevant matters and does not constitute comment on the evidence or argument as to

inferences to be drawn therefrom." (People v. Thompson (1988) 45 Cal.3d 86, 112.)

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"Personal attacks on opposing counsel are improper and irrelevant to the issues." (People

v. Sandoval (1992) 4 Cal.4th 155, 184.) "To prevail on a claim of prosecutorial

misconduct based on remarks to the jury, the defendant must show a reasonable

likelihood the jury understood or applied the complained-of-comments in an improper or

erroneous manner. [Citations.] In conducting this inquiry, we 'do not lightly infer' that

the jury drew the most damaging rather than the least damaging meaning from the

prosecutor's statements." (People v. Frye, supra, 18 Cal.4th at p. 970.)

C

Assuming arguendo Senior timely objected to the purported misconduct and

requested curative admonitions or did not otherwise waive his objections, we conclude

that in the circumstances of this case the prosecutor did not commit misconduct under

either the state or federal standard. Contrary to Senior's assertion, in the context of the

prosecutor's closing arguments his use of the word "lie" in the two instances quoted

above should be construed, and likely was construed by the jury, as challenging the

validity or accuracy of certain arguments made by Senior's counsel and not as impugning

the character of Senior's counsel. First, the prosecutor properly rebutted the argument by

Senior's counsel that Rivera's testimony was the only evidence of Senior's aiding and

abetting the crime. Although the prosecutor could have, and probably should have, made

a more appropriate choice of wording, his use of the word "lie" in the context of his

argument had the effect of conveying to the jury that it was false or incorrect that the only

evidence of Senior's aiding and abetting was Rivera's testimony. In the circumstances of

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this case, we cannot conclude the jury inferred from the prosecutor's argument that he

was asserting Senior's counsel was a liar or otherwise impugning his character. Likewise,

in the second instance, the prosecutor properly used the word "lie" in arguing the

invalidity or inaccuracy of Senior's counsel's argument that the prosecutor had the burden

to prove each and every factual allegation he made. The prosecutor properly argued

"[t]he truth is that the prosecution is required to prove the allegation [of first degree

murder] beyond a reasonable doubt" and not "each and every fact that you hear about in

this case."

In the circumstances of this case, we cannot conclude the jury inferred from the

prosecutor's argument, including his use of the word "lie," that he was asserting Senior's

counsel was a liar or otherwise impugning his character. Accordingly, we cannot

conclude the prosecutor's use of the word "lie" in those two instances was misconduct.

Although the prosecutor should have used more appropriate language, the record as a

whole shows he used hyperbole and/or epithets as an advocate to convey to the jury that

certain arguments made by Senior's counsel were incorrect and not to improperly cast

aspersions on his character. (People v. Wharton, supra, 53 Cal.3d at p. 567; People v.

Fosselman, supra, 33 Cal.3d at p. 580; People v. Thompson, supra, 45 Cal.3d at p. 112;

People v. Sandoval, supra, 4 Cal.4th at p. 184; cf. People v. Poggi (1988) 45 Cal.3d 306,

340 ["the [prosecutor's] comment would have been recognized by the jurors as an

advocate's hyperbole and would accordingly have been discounted"].)

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 Senior also asserts the prosecutor committed misconduct by using the words

"hoodwink" and "excuses" as quoted above. However, in the context of the prosecutor's

argument, he properly used the word "hoodwink" in rebutting the argument by Senior's

counsel that Senior was too intoxicated to know what he was doing prior to and at the

time of the killing. By using the term "hoodwink," the prosecutor properly argued to the

jury that it should not be persuaded by Senior's intoxication defense.9 Similarly, the

prosecutor properly argued the jury should not be persuaded by the "excuses" for Senior's

conduct asserted by counsel to find a reasonable doubt about Senior's guilt. In so doing,

the prosecutor in effect argued the evidence did not support those proffered defenses, but

instead supported Senior's guilt of the charged offenses beyond a reasonable doubt.

Contrary to Senior's assertion, we conclude the prosecutor's argument did not in effect

argue Senior's counsel did not believe in his client's defenses or was dishonest in

presenting those defenses. (Cf. People v. Thompson, supra, 45 Cal.3d at p. 112; People

v. Bell (1989) 49 Cal.3d 502, 538.) We conclude the prosecutor's use of the words

"hoodwink" and "excuses" in the circumstances of this case did not cast aspersions on the

character of Senior's counsel or otherwise constitute misconduct. (People v. Wharton,

supra, 53 Cal.3d at p. 567; People v. Fosselman, supra, 33 Cal.3d at p. 580; People v.

Thompson, at p. 112; People v. Sandoval, supra, 4 Cal.4th at p. 184; People v. Poggi,

supra, 45 Cal.3d at p. 340.) Therefore, we conclude none of the prosecutor's closing

9 We reach the same conclusion regarding the prosecutor's use of the term "head
fake" in arguing the jury should not be persuaded by Senior's intoxication defense.

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arguments cited by Senior constituted deceptive or reprehensible methods under federal

or state standards for prosecutorial misconduct. (People v. Frye, supra, 18 Cal.4th at

p. 969.)

III

Jury Instructions on Voluntary Intoxication

Senior contends the trial court erred by not instructing sua sponte on voluntary

intoxication regarding the two criminal threat counts (i.e., counts 3 and 4). He argues

that because the court instructed on voluntary intoxication as a potential defense to the

first degree murder count (i.e., count 1), it was required to give the same instruction

regarding the criminal threat counts even without a request by Senior's counsel.

Although Senior concedes a trial court is generally not required to give a pinpoint

instruction on a voluntary intoxication defense absent a request by counsel (see, e.g.,

People v. Saille (1991) 54 Cal.3d 1103, 1119), he argues that in the circumstances of this

case the court had a sua sponte duty to instruct on voluntary intoxication as a defense to

the criminal threat counts to "ensure [its] instructions were complete."

A trial court does not have a sua sponte duty to instruct on voluntary intoxication

regarding a certain count if it so instructs regarding another count. Although Senior cited

People v. Castillo (1997) 16 Cal.4th 1009 as support for his argument, it is inapposite to

this case and does not persuade us the court erred in these circumstances. In Castillo, the

California Supreme Court noted that a trial court has a duty to give legally correct

instructions when it instructs on a particular issue (e.g., voluntary intoxication defense)

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and must not give partial instructions on an issue that could mislead a jury. (Id. at

p. 1015.) Although the trial court instructed the jury that voluntary intoxication could

affect the specific intent or mental state required for murder and attempted murder,

Castillo concluded the trial court's failure to specifically instruct that voluntary

intoxication could also affect the defendant's premeditation was not a failure to give

complete and correct instructions because the court's instructions as a whole discussed

premeditation, deliberation, and intent to kill. (Id. at p. 1016.)

The trial court in this case did not incompletely or partially instruct the jury on the

defense of voluntary intoxication. Rather, it completely and correctly instructed on that

defense, but did so only regarding count 1 and not counts 3 and 4. However, the court's

failure to instruct on voluntary intoxication regarding counts 3 and 4 did not result in

incorrect or incomplete instructions. The jury was correctly instructed on counts 3 and 4.

The trial court did not have a sua sponte duty to instruct on voluntary intoxication

regarding counts 3 and 4. Therefore, the court did not err by not instructing sua sponte

on voluntary intoxication as a defense to counts 3 and 4. If Senior wanted an instruction

on voluntary intoxication regarding those counts, he should have requested one. (People

v. Saille, supra, 54 Cal.3d at p. 1119.)

Because Senior did not request an instruction on voluntary intoxication as a

defense to counts 3 and 4, he waived or forfeited any error based on the failure of the trial

court to so instruct. (People v. Freeman (1994) 8 Cal.4th 450, 495.) Given the waiver or

forfeiture, Senior alternatively asserts he was denied his constitutional right to effective

25
assistance of counsel based on his counsel's failure to request a voluntary intoxication

instruction regarding counts 3 and 4. However, assuming arguendo Senior's counsel did

not have, or could not have had, a tactical reason for, and performed deficiently by,

failing to request an instruction on voluntary intoxication regarding counts 3 and 4, we

nevertheless conclude he was not denied effective assistance of counsel because such

deficient performance was not prejudicial to him. (Strickland v. Washington (1984) 466

U.S. 668, 693-694, 697.) Because the jury clearly rejected Senior's defense of voluntary

intoxication to count 1 by finding him guilty of first degree murder, it is highly likely the

jury likewise would have rejected that same defense to counts 3 and 4 (the criminal threat

charges) had the jury been specifically instructed on that defense to those counts. It is not

reasonably probable Senior would have obtained a more favorable outcome at trial had

his counsel's performance not been deficient as he asserts (i.e., had his counsel requested

a voluntary intoxication instruction regarding counts 3 and 4). Therefore, Senior was not

denied effective assistance of counsel. (Ibid.)

JUNIOR'S APPEAL

IV

Wende Brief

Junior's appointed appellate counsel has filed a brief summarizing the facts and

proceedings below. His counsel presents no argument for reversal, but asks us to review

the record for error as mandated by Wende, supra, 25 Cal.3d 436 and Anders v.

California (1967) 386 U.S. 738. His counsel mentions as possible, but not arguable,

26
issues: (1) whether the trial court erred by admitting certain medical expert testimony

(i.e., that one of Garcia's gunshot wounds was close-range and would be considered

"execution style"); (2) whether the prosecutor committed misconduct during closing

arguments; and (3) whether the trial court erred by denying his posttrial Marsden10

motion for substituted counsel to represent him at his sentencing hearing.

We granted Junior permission to file a brief on his own behalf. He has not

responded. A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders

v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues.

Junior has been competently represented by counsel on this appeal.

DISPOSITION

The judgments are affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

10 People v. Marsden (1970) 2 Cal.3d 118.

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