People v. Vega CA2/4

Filed 1/10/23 P. v. Vega CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

THE PEOPLE, B314582

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA121766
v.

ERIC ALBERTO VEGA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Juan Carlos Dominguez, Judge. Affirmed.
Matthew Missakian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Chung L. Mar,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted defendant and appellant Eric Alberto Vega
of first degree murder and found a weapon allegation true. The
trial court sentenced him to 25 years to life in state prison. Vega
raises four arguments on appeal. For the reasons discussed
below, we reject his contentions and affirm the judgment.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed an
information charging Vega with murder. (Pen. Code,1 § 187, subd.
(a).) The information alleged Vega used a deadly weapon (a knife)
within the meaning of section 12022, subdivision (b)(1). The jury
found him guilty and found the weapon allegation true. The trial
court struck the weapon allegation and sentenced Vega to 25
years to life in state prison. Vega timely appealed.

FACTUAL BACKGROUND

A. Prosecution Evidence

i. Summary

Michael Chacon died from a stab wound to the chest. The
stabbing instrument went three inches into his chest, penetrating
his aorta. Chacon had no defensive wounds on his hands or
forearms. Although no witnesses to the killing came forward,
police concluded after an investigation that Vega murdered
Chacon.

1 All undesignated statutory references are to the Penal
Code.

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 i. The victim’s body and a knife blade are found
in park

Around 6:45 a.m. on April 6, 2015, Azusa police officers
found Chacon’s body lying on the ground in Northside Park near
the tennis courts. A few feet from the victim’s body, Los Angeles
County Sheriff’s Department Detective Guillermo Morales found
a knife blade with a missing handle. The knife blade was slightly
more than three inches long. It looked like a kitchen or steak
knife. The victim’s DNA was later detected on the blade. The
blade was consistent with the instrument that caused the fatal
wound.
Law enforcement personnel searched the park for the
missing knife handle but could not find it. The only people (other
than the perpetrator) who knew about the missing knife handle
were the investigating detectives and crime scene personnel.
Based on witness accounts of when Chacon’s body was first
seen at the park, Detective Morales believed the killing occurred
around 2:00 a.m.

ii. The morning Chacon’s body is found, Vega tells
his girlfriend he killed a man, and he needs to
find the missing handle of the knife he used

In April 2015, Vega and his girlfriend, Ernestina Orozco
Luna, lived together in a homeless encampment in the mountains
near Northside Park. On the morning when Chacon’s body was
discovered, Vega and Orozco were driving past the police tape
that surrounded the crime scene, when Vega stated “he had been
found.” When Orozco asked Vega what he meant, Vega replied,
“I killed him.” Orozco ignored Vega’s statements because he

3
was not mentally well, often talked to himself, and was a
methamphetamine user.
Later that day, when Vega and Orozco returned to their
tent in the homeless encampment, Vega asked Orozco to help him
look for something. They left the tent and walked along a nearby
road. Orozco asked what they were looking for, and Vega replied
they were looking for the “handle of a knife.” After further
questioning from Orozco, Vega clarified it was “the handle of the
knife . . . I used to kill him.” After Orozco refused to help Vega,
they returned to the tent. Vega later told Orozco he killed the
man because the man had raped a young woman.

iii. Vega demonstrates consciousness of guilt
during jailhouse calls with Orozco

Based on conversations with various witnesses, Detective
Morales decided to speak with Vega. On December 6, 2015,
Detective Morales discovered Vega was in custody on an
unrelated matter, and further determined Vega had not been in
in custody on the date Chacon was killed. The next day, Detective
Morales and his partner spoke with Vega. Afterwards, Detective
Morales began monitoring Vega’s phone calls from jail.
On December 21, 2015, Vega had a recorded phone
conversation with Orozco. During that conversation, Vega said,
“they came to . . . investigate that – that [expletive] that
happened. Do you remember?” Vega further asked, “You know
what I’m talking about, right?” Orozco responded, “Yes.” Vega
also told Orozco “they asked me for your information,” he “didn’t
say anything,” and he “didn’t talk to them . . . so don’t let them
trick you.” Detective Morales and his partner were the only
investigators who visited Vega in custody prior to that call.

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 On January 13, 2016, Detective Morales and his partner
visited Vega in jail a second time. As a ruse, the detectives told
Vega he was going to be charged with Chacon’s murder. Detective
Morales also mentioned the name “Caprichosa,” which was
associated with Orozco, and asked about Orozco’s Facebook
account.
Following that second visit from the detectives, Vega had
another recorded phone call with Orozco on January 20, 2016.
Vega told Orozco the detectives visited him again, and he “was
very worried” because the detectives “scared” him by stating
“they were going to file the charge on [him].” Vega also noted the
detectives asked him about “Caprichosa,” and he told Orozco
“that name has to disappear . . . now.” Vega further related that
he told the detectives he did not have a girlfriend, he was not
with Caprichosa, and he did not know anyone with that name.
Orozco asked Vega, “That’s what you said about me?” Vega
replied, “You’re not Caprichosa, yes?” and Orozco replied “no.”
Vega then instructed Orozco to “[e]rase your Facebook and all
that [expletive], sweetheart.” He further stated: “I don’t want you
to have Facebook anymore” “[w]ith that -- that name or whatever.
I want that name to disappear. Okay?”

iv. The detectives interview Orozco

On July 22, 2019, Detective Morales and two other
detectives conducted a recorded interview with Orozco at her
home. Detective Morales explained that he was investigating a
2015 murder in Azusa. Orozco initially appeared hesitant to talk.
She became more cooperative after Detective Morales played a
recording of her December 2015 jail call with Vega. She then told
the detectives that, on the night of the murder, she and Vega
were looking for the handle to a knife. Orozco also informed the

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officers that Vega told her he killed Chacon because Chacon had
raped a girl.

B. Defense Evidence

Vega did not present any witnesses on his behalf.

DISCUSSION

I. The trial court did not abuse its discretion by
admitting evidence of a rumor of Vega’s
involvement in the killing because it explained
Detective Morales’s reasons for initially
speaking with Vega and later monitoring his
jailhouse phone calls

Vega argues the trial court prejudicially erred by admitting
evidence that Detective Morales decided to speak with Vega
because of a rumor that someone named Eric had killed the
victim. He contends the non-hearsay purpose for the proffered
evidence – i.e., the reason Detective Morales contacted Vega– was
irrelevant. He further argues that, even if the evidence had some
probative value, it should have been excluded under Evidence
Code section 352 and principles of due process. The Attorney
General counters that Vega forfeited the Evidence Code section
352 aspect of his argument by failing to object, and that even
assuming his contention had been fully preserved below, the
evidence was properly admitted by the trial court and any
purported error was harmless. As discussed in greater detail
below, we agree with the Attorney General.

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 A. Proceedings Below

On direct examination, Detective Morales testified he
decided to speak with Vega about the case because “[t]here was a
rumor that a[n] Eric had killed Mr. Chacon.” Defense counsel
objected and moved to strike the testimony on hearsay grounds.
After confirming that the prosecution was not offering the
evidence for the truth of the matter asserted, the trial court
overruled the objection. Detective Morales then testified he had
received information that “Eric” was a homeless individual who
lived in the homeless community in the Azusa canyons, and the
Azusa Police Department later provided him Vega’s name. The
court then admonished the jury as follows:

The statement that – or the rumor that Eric had killed Mr.
Chacon is not offered for the truth of that statement; it’s
offered simply to explain why the detective did what he did
in following up in trying to locate an Eric. Does that make
sense? It’s not offered for the truth that, in fact, this
defendant had killed the decedent. Okay?

B. Relevant Law

“‘Hearsay evidence’ is evidence of a statement that was
made other than by a witness while testifying at the hearing and
that is offered to prove the truth of the matter stated.” (Evid.
Code, § 1200, subd. (a).) We review the trial court’s ruling on
Vega’s hearsay objection for abuse of discretion. (People v. Caro
(2019) 7 Cal.5th 463, 503.)
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is evidence “having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) Trial courts

7
have broad discretion in determining whether evidence is
relevant. (People v. Miles (2020) 9 Cal.5th 513, 587.)
“The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.)
“‘Prejudice,’ as used in Evidence Code section 352, is not
synonymous with ‘damaging.’” (People v. McCurdy (2014) 59
Cal.4th 1063, 1095.) “Rather, it refers to evidence that uniquely
tends to evoke an emotional bias against the defendant as an
individual, and has little to do with the legal issues raised in the
trial. [Citation.]” (Ibid.)

C. Analysis

We begin by noting, as does the Attorney General, that
Vega has forfeited the Evidence Code section 352 aspect of his
argument by failing to object on that ground in the trial court.
(People v. Alexander (2010) 49 Cal.4th 846, 905; see Evid. Code,
§ 353, subd. (a).) We nonetheless address the entirety of Vega’s
argument on the merits. (See People v. Williams (1998) 17
Cal.4th 148, 161-162, fn. 6 (Williams).) Turning to the merits, we
conclude the trial court did not abuse its discretion in allowing
the evidence to be admitted. Detective Morales’s statement was
properly offered for the relevant non-hearsay purpose of
explaining “subsequent action by a law enforcement officer
during his investigation into a murder.” (People v. Samuels
(2005) 36 Cal.4th 96, 122 (Samuels); see also People v. Livingston
(2012) 53 Cal.4th 1145, 1162 [evidence may be properly admitted
“for the nonhearsay purpose of explaining conduct”].) The
evidence was relevant because it explained the reasons for

8
Detective Morales’s decision to speak with Vega, and then
monitor his jailhouse phone calls. (See, e.g., Samuels, supra, at p.
122 [testimony regarding phone conversation in which
anonymous caller identified suspect was not hearsay or
irrelevant because it explained detective’s reason for obtaining
search warrants and contacting alleged killer].) Nor was the
evidence unduly prejudicial. The trial court carefully instructed
the jury on the limited purpose for which the evidence could be
considered, and it is presumed the jurors understood and followed
that instruction. (People v. Foster (2010) 50 Cal.4th 1301, 1336-
1337; People v. Yeoman (2003) 31 Cal.4th 93, 139.)2
Even assuming the trial court had erred by admitting the
evidence, the purported error was harmless. Vega’s admissions to
Orozco regarding the killing and the missing knife handle were
highly incriminating, especially because only a limited number of
law enforcement personnel knew about the missing knife handle.
Vega’s statements to Orozco in the two recorded jail phone calls –
including his reference to the detectives coming to “investigate
. . . that [expletive] that happened,” his acknowledgment that the
detectives “scared” him regarding an impending murder charge,
and his instructions to Orozco to “erase” her Facebook account
and make the “Caprichosa” name “disappear” – further bolstered
the strength of the prosecution’s case. For these reasons, it is not
reasonably probable Vega would have obtained a more favorable

2 Because Detective Morales’s testimony was properly
admitted, we reject Vega’s alternative claim that trial counsel
was ineffective by not objecting under Evidence Code section 352.
(See, e.g., People v. Thomas (1992) 2 Cal.4th 489, 531 (Thomas)
[failure to make meritless objection does not constitute ineffective
assistance of counsel].)

9
result had Detective Morales’s statement been excluded. (People
v. Watson (1956) 46 Cal.2d 818, 836.)3

II. Substantial evidence supports the jury’s
findings of premeditation and deliberation

Vega next argues the record contains insufficient evidence
of premeditation and deliberation to support his first degree
murder conviction. We are unpersuaded.
In reviewing a judgment for sufficiency of the evidence, a
court must review the record in the light most favorable to the
judgment to determine if there is substantial evidence from
which any rational trier of fact could find each element of the
crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443
U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560]; People v.
Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is
evidence that is “‘reasonable in nature, credible, and of solid
value.’” (People v. Johnson (1980) 26 Cal.3d 557, 576, internal
citation omitted.) Substantial evidence includes circumstantial
evidence and reasonable inferences based on that evidence. (In re
James D. (1981) 116 Cal.App.3d 810, 813.) In reviewing a
sufficiency claim, we “presume in support of the judgment the
existence of every fact that the trier of fact could reasonably
deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th
913, 919.) We accord due deference to the jury and do not
substitute our own evaluation of a witness’s credibility for that of

3 To the extent Vega suggests the admission of Detective
Morales’s statement constituted federal constitutional error,
thus mandating a more favorable prejudice standard, we reject
this contention, as we find unpersuasive Vega’s “attempt to
inflate garden-variety evidentiary questions into constitutional
ones . . . .” (People v. Boyette (2002) 29 Cal.4th 381, 427.)

10
the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Because we must draw all inferences in support of the judgment,
[a] defendant ‘bears an enormous burden’ when challenging the
sufficiency of the evidence.” (People v. Vasco (2005) 131
Cal.App.4th 137, 161 (Vasco).)
The unjust killing of a human being is presumed to be
murder in the second, rather than first, degree. (People v.
Anderson (1968) 70 Cal.2d 15, 25 (Anderson).) First degree
murder has the additional elements of willfulness, premeditation,
and deliberation. (People v. Gomez (2018) 6 Cal.5th 243, 282.)
“The very definition of ‘premeditation’ encompasses the idea that
a defendant thought about or considered the act beforehand.”
(People v. Pearson (2013) 56 Cal.4th 393, 443.)
“‘. . . “Deliberation” refers to careful weighing of considerations in
forming a course of action; “premeditation” means thought over
in advance. [Citations.]’” (People v. Casares (2016) 62 Cal.4th 808,
824, disapproved on another ground in People v. Dalton (2019) 7
Cal.5th 166, 214.) “Premeditation and deliberation can occur in a
brief interval.” (People v. Memro (1995) 11 Cal.4th 786, 863
(Memro).) Some basic categories of evidence sufficient to support
a finding of premeditation and deliberation include planning,
motive, and a deliberate manner of killing. (Anderson, supra, 70
Cal.2d at pp. 26-27; People v. Morales (2020) 10 Cal.5th 76, 88-
89.) This list of categories is not exhaustive, and reviewing courts
need not accord these categories any particular weight. (People v.
Morales, supra, at p. 89.)
Applying these principles, and reviewing the facts adduced
at trial in the light most favorable to the judgment, we conclude
Vega cannot satisfy his substantial burden of showing no
reasonable jury could find premeditation and deliberation.

11
(Vasco, supra, 131 Cal.App.4th at p. 161; Jackson v. Virginia,
supra, 443 U.S. at pp. 318-319.) First, the manner in which Vega
killed Chacon supports the jury’s verdict. Vega stabbed Chacon in
the chest, with the knife penetrating his aorta. (See Anderson,
supra, 70 Cal.2d at p. 27 [“plunging a lethal weapon into the
chest evidences a deliberate intention to kill”]; People v. Koontz
(2002) 27 Cal.4th 1041, 1082 [killer targeting vital area of body
supported a finding of deliberation].) And, as the Attorney
General points out, the absence of defensive wounds on the
victim’s hands or forearms provides additional support for the
jury’s findings of premeditation and deliberation. (See People v.
Morales (2020) 10 Cal.5th 76, 102 [“delivering the fatal
wound . . . in a manner that resulted in no defensive wounds”
relevant to issue of premeditation and deliberation].)
In addition to the manner of killing, the evidence of motive
likewise supports the jury’s findings. Vega told Orozco he
committed the killing because the victim had raped a young
woman. This retaliatory motive is indicative of premeditation and
deliberation. (See, e.g., People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 295 [retaliatory motive supported finding of intent to
commit premeditated and deliberate murder].)
Although it is possible Vega may not have spent much time
considering the act of killing Chacon, as noted above, our
Supreme Court has explained that “[p]remeditation and
deliberation can occur in a brief interval.” (Memro, supra, 11
Cal.4th at p. 863; see ibid. [“‘The test is not time, but reflection.
“Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly”’”].) And although
reasonable minds could perhaps disagree about whether Vega
premeditated and deliberated the murder, it was not

12
unreasonable for the jury to reach the finding it did. We therefore
reject Vega’s substantial evidence contention.

III. Vega’s prosecutorial error argument is without
merit

Vega next argues the prosecution committed several
instances of prejudicial misconduct during closing argument. As
discussed in greater detail below, assuming Vega did not forfeit
this argument by failing to object, we conclude the prosecution’s
statements were permissible and any purported error was
harmless.4

A. Relevant Law

“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) “Conduct
by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods
to attempt to persuade either the trial court or the jury.” (Ibid.)

4 Because we reach the merits of Vega’s argument, we need
not address his alternative argument that counsel was ineffective
in failing to object to the prosecution’s statements. We do note,
however, that because we conclude the prosecution’s arguments
were permissible, it follows logically that trial counsel was not
ineffective in failing to object. (See Thomas, supra, 2 Cal.4th at p.
531 [failure to make meritless objections to portions of
prosecution’s closing argument is not ineffective assistance of
counsel].)

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 “A prosecutor is given wide latitude to vigorously argue his
or her case and to make fair comment upon the evidence,
including reasonable inferences or deductions that may be drawn
from the evidence. [Citation.]” (People v. Ledesma (2006) 39
Cal.4th 641, 726 (Ledesma).) “‘Whether the inferences the
prosecutor draws are reasonable is for the jury to decide.’”
(People v. Farnam (2002) 28 Cal.4th 107, 169 (Farnam).)
However, “‘ . . . counsel may not assume or state facts not in
evidence’” or “‘mischaracterize the evidence [citation].’” (People v.
Collins (2010) 49 Cal.4th 175, 209.)
When the claim focuses upon comments made by the
prosecutor before the jury, the question is whether there is a
reasonable likelihood the jury construed or applied any of the
complained-of remarks in an improper or erroneous manner.
(People v. Jackson (2016) 1 Cal.5th 269, 349; People v. Gurule
(2002) 28 Cal.4th 557, 657.) In conducting this inquiry, the
reviewing court does not lightly infer that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s comments. (Ibid.)

B. Analysis

To preserve a claim of prosecutorial error on appeal, a
defendant “. . . ‘ . . .“must make a timely and specific objection
and ask the trial court to admonish the jury to disregard the
impropriety.”’” (People v. Powell (2018) 6 Cal.5th 136, 171.)
Although Vega forfeited his argument by failing to object to the
prosecutor’s statements, we exercise our discretion to address the
merits. (See Williams, supra, 17 Cal.4th at p. 161, fn. 6.)

14
 i. Comments regarding the deliberation
requirement

During closing argument, the prosecutor explained why
Chacon being stabbed in the chest supported a finding of
premeditated first degree murder. The prosecutor then stated:

So to find first degree, you have to find that it was willful,
meaning he meant to kill. For all the reasons I just
mentioned, he meant to kill. You must find that it was
deliberate, that it wasn’t accidental. For all those reasons,
this is a deliberate act. Now, you must find that there was
premeditation. The premeditation also comes through the
mouth of the defendant. The defendant told Tina several
weeks, a month [later], do you know why I killed him? Out
of the blue. This is not a person who is high, he remembers
a conversation that they had weeks, and months prior.

Focusing on the above-italicized statements, Vega argues
the prosecution incorrectly conflated the “deliberation”
requirement for first-degree murder with a “deliberate” (i.e., non-
accidental) act. Taken in context, however, the prosecution’s
remarks were permissible. She was explaining to the jury that
the manner in which the wound was inflicted required
premeditation and deliberation; not that a non-accidental killing
constituted deliberation. In addition, the prosecutor’s statements
were harmless because the jury was properly instructed “[t]he
defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill.” The jury was likewise instructed
that it was required to follow the court’s instructions if the
“attorneys’ comments on the law conflict with [its] instructions.”

15
We presume the jurors treated the “. . . ‘court’s instructions as a
statement of the law by a judge, and the prosecutor’s comments
as words spoken by an advocate in an attempt to persuade.’”
(People v. Osband (1996) 13 Cal.4th 622, 717.) For these reasons,
and because the manner of killing and Vega’s motive indeed
supported a finding of premeditation and deliberation, the
purported error was harmless.

ii. Vega’s contention that the prosecution
reversed the burden of proof

During the prosecutor’s discussion of premeditation and
deliberation, the prosecutor argued:

There’s no evidence that this was an impulsive act. Think
about a stabbing. How intimate, how close, how deep that
wound was. The fact that he thought that this other man
had raped someone. He was carrying a knife. He took out
that knife. He took out that knife to get close to Michael
Chacon. He pierced his heart. Because in his mind [Chacon]
had raped someone. Whether or not it turned out that he
was right, it doesn’t matter. What matters is that he
intended to kill him, and he waited, according to him, for
Michael Chacon to come back to kill him. That’s your
deliberation.

Citing the prosecution’s remark that there was “no
evidence that this was an impulsive act,” Vega argues the
prosecution reversed the burden of proof by implying the murder
was first degree based on the absence of evidence of an impulsive
act. We are not persuaded.
The prosecution may comment on “‘. . . the state of the
evidence, or on the failure of the defense to introduce material

16
evidence or to call logical witnesses.’” (People v. Turner (2004) 34
Cal.4th 406, 419.) There is clearly a difference between the
prosecution permissibly commenting that a defendant has not
produced evidence, and impermissibly commenting that “a
defendant has a duty or burden to produce evidence, or a duty or
burden to prove his or her innocence.” (People v. Bradford (1997)
15 Cal.4th 1229, 1340.)
The prosecution’s statement Vega now challenges was
merely a permissible comment on the state of the evidence. The
prosecution did not suggest Vega had a duty or burden to produce
evidence. Indeed, the prosecutor later re-emphasized that she
bore the burden of proof. The statement was also harmless in
light of the court’s instructions that the prosecution carried the
burden of proof and the evidence of premeditation and
deliberation presented at trial (see discussion section II above).

iii. Vega’s argument regarding waiting for the
victim

Vega next argues the prosecution mischaracterized the
evidence by arguing Vega waited for the victim before killing
him. We likewise reject this contention. As mentioned above, “A
prosecutor is given wide latitude to vigorously argue his or her
case and to make fair comment upon the evidence, including
reasonable inferences or deductions that may be drawn from the
evidence.” (Ledesma, supra, 39 Cal.4th at p. 726.) “‘Whether the
inferences the prosecutor draws are reasonable is for the jury to
decide.’” (Farnam, supra, 28 Cal.4th at p. 169.) The prosecution’s
statement here was a fair comment in light of the evidence that
Vega had a retaliatory motive for the killing, Chacon died from a
stab wound to the chest with no defensive wounds, and the
killing occurred in the middle of the night in a public park. And

17
the statement was harmless because the prosecution presented
ample evidence of premeditation and deliberation.

iv. Remarks regarding unanswered questions

The prosecution told the jury:

Ladies and gentlemen, reasonable doubt will be defined for
you by the judge. You may have those questions: What
happened to the handle? Is it true that a girl was raped or
not? Don’t let that distract you from the evidence. Those
questions can be answered later at the end of this trial,
when we have an opportunity to talk. Focus on the evidence
that was given to you. Use reasonable inferences and
common sense. Do not speculate. And come to the
reasonable conclusion that the evidence gives you in this
case, and that is that Eric Vega is guilty of first degree
murder.

Citing the above-italicized comments, Vega argues the
prosecution erred by referring to facts outside the record. We
disagree. Considered in context, the prosecution properly argued
the jury should base its decision solely on the evidence presented
at trial. The prosecution did not suggest that any fact outside the
record proved Vega’s guilt. Rather, it asked them to “[f]ocus on
the evidence that was given to [them]” and not speculate.
Additionally, Vega suffered no prejudice because the trial court
properly instructed the jury it must decide the case based solely
on evidence presented. The trial court also clarified to the jury
that remarks by counsel are not evidence.

18
 IV. Vega’s Confrontation Clause argument is
without merit

Before trial, Vega filed a motion to prohibit witnesses from
wearing masks while testifying at trial. In his motion, Vega
asserted the mask wearing would violate his constitutional rights
to confrontation and due process by impeding the jury’s ability to
determine the demeanor of the witnesses. After the prosecution
concluded its case, the trial court noted for the record that it had
denied Vega’s motion based on the presiding judge’s order, which
required everyone inside the courtroom, including testifying
witnesses, to wear a mask.
On appeal, Vega renews his argument that his rights under
the Confrontation Clause were violated by the trial court
requiring witnesses to wear masks while testifying. As the
Attorney General notes, however, numerous cases have rejected
this argument. (See, e.g., People v. Edwards (2022) 76
Cal.App.5th 523, 525 [“It does not violate the [C]onfrontation
[C]lause for a judge to order trial witnesses to wear masks during
the current pandemic. The Constitution does not require judges
to imperil public health.”]; People v. Lopez (2022) 75 Cal.App.5th
227, 234-236 [trial court’s mask requirement was lawful under
the Confrontation Clause because it furthered important public
policy of reducing health risks of COVID-19 pandemic, without
meaningfully diminishing the face-to-face nature of the testimony
of witnesses, who were subject to unfettered cross-examination by
counsel]; id. at p. 234 [mask requirement did not “significantly
obstruct the jury’s ability to assess witness demeanor” because
the “jurors could see the witnesses’ eyes, hear the tone of their
voices, and assess their overall body language.”].) We agree with
these cases and reject Vega’s argument.

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 DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.
We concur:

MANELLA, P.J.

WILLHITE, J.

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