People v. Rosales CA4/1

Filed 9/29/23 P. v. Rosales 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080386

Plaintiff and Respondent,

v. (Super. Ct. No. SCD266444)

NICOLAS BRITO ROSALES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Affirmed.
David M. McKinney, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Arlene A. Sevidal, Andrew Mestman
and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and
Respondent.
 A jury convicted Nicolas Brito Rosales of second degree murder (Penal

Code,1 § 187, subd. (a)), and found true an allegation that he intentionally
and personally discharged a handgun, proximately causing great bodily
injury and death (§ 12022.53, subd. (d)).
The court sentenced Rosales to 19 years to life in state prison: 15 years
to life for the murder conviction plus four years for the gun enhancement.
Rosales contends: (1) the court erroneously declined to instruct the
jury on imperfect self-defense; (2) defense counsel provided ineffective
assistance by conceding that because Rosales did not testify, no basis existed
to give that instruction, as well as by not objecting to the prosecutor’s
repeated use of the term “murder” when examining trial witnesses; (3) the
court erroneously excluded evidence of the victim’s domestic violence acts;
and (4) the court’s oral instruction of the jury in the reporter’s transcripts
erroneously used the word “rationally” instead of “rashly.” We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At trial and on appeal, Rosales has conceded that on April 19, 2011, he
shot and killed Jalal Abou, claiming he acted in self-defense. As Rosales does
not challenge the sufficiency of the evidence to support the conviction, we
summarize the underlying facts to provide context for his contentions.
Abou owned and operated an auto repair shop in San Diego, California,
where he employed Rosales. In April 2011, days before Abou was killed, a
shop neighbor overheard an “intense argument” between Rosales and Abou,
and became “concerned for [Abou] for a minute.” At trial, the neighbor was
asked about his earlier testimony that during the argument he heard Rosales
say he would kill Abou, but he did not remember: “If I did, I did. Taking in

1 Undesignated statutory references are to the Penal Code.

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mind that I was taking a lot of medication . . . . So a lot of things I said, I
can’t remember a lot of it.”
Abou’s employee, F.Z., testified that Abou treated his employees “like
family.” F.Z. recalled that a few weeks before Abou was killed, Rosales, who
F.Z. could not identify at trial, came into the shop one day and “said he
wanted to pick up his mail.” Abou was not there. Rosales became “real loud”
and upset that his mail was not there. Rosales was aggressive and used foul
language. As customers were in the shop, F.Z. asked Rosales to “tone it down
and not use the language.” When Abou returned, he explained to F.Z. that
“he’s holding [Rosales’s] mail because he’s a previous employee as a favor for
him because he didn’t have an address.”
A few days later, Rosales returned to the shop, again looking for his
mail. He again became upset as neither his mail nor Abou was present at the
shop, and used foul language, and “wanted to know where his fucking mail
was.”
When Rosales returned to the shop a third time, Abou explained to him
that the mail had not arrived, and the two men went outside to the area next
to the side of the building and talked in a “normal” tone. F.Z. also testified
that he did not know Abou to carry weapons.
On April 19, 2011, at about 7:00 a.m., a neighbor saw Rosales sitting in
a car in front of Abou’s shop.
Q.P. testified in September 2021, over 10 years after the incident
occurred. He said that between 7:00 and 7:30 that morning, while driving on
his way to work, he was stopped in traffic in front of Abou’s shop. Q.P.’s car
windows were closed and he was playing music. He observed “two older guys
fighting.” One (later identified as Abou) was dressed in blue clothing, and the
other (later identified as Rosales) wore a yellow shirt. As they fought, Abou

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stepped back, appeared to grab an object that looked like an umbrella, and
pointed it at Rosales. Rosales ran to a car and began “digging” in the glove
box. Abou stepped back. Rosales “took off running to the other side of the
car.” Rosales looked scared and appeared to be “ducking and dodg[ing].” At

that point, Q.P. drove off. Q.P. saw no weapons and heard no gunshots.2
The portion of the incident that Q.P. observed lasted between 10 and 12
seconds.
A police officer who interviewed Q.P. shortly after the killing testified
that Q.P. said he did not see a gun, and that if Abou had one in his hand,
“[Q.P.] would have seen it.”
A neighbor heard the sound of gunshots, went over to the shop, and
saw Abou’s body.
Rosales’s family member testified Rosales had left home at about 6:00
o’clock that morning. A few hours later he returned, “rushing,” and said he
needed to go to Mexico immediately. A United States Customs and Border
Protection agent testified that a vehicle registered in Rosales’s son’s name
crossed into Mexico at approximately 9:00 o’clock that morning.

2 The prosecutor asked Q.P. on direct examination: “I just want to make
sure we’re clear. So as you sit here today, are you saying that if there was a
gun, you would have saw it [sic] or you don’t know? Q.P. answered: “At that
time I wasn’t paying attention like that, I really wasn’t focused on [sic]. I
wasn’t focused on that, I wasn’t focused on looking for a gun. I mean, I just—
at the time I saw it, I saw what I saw and you know I was not paying
attention[.]”
On cross-examination, defense counsel asked Q.P. whether the object
he saw in Abou’s hand could have been a gun. Q.P. replied, “I can’t say that.
I mean, I can’t, you know. What I saw is I just said to myself it [sic]. I was
just having a good time drinking my coffee. I just said (sic) the old man
[Abou] got an umbrella and took off running. That’s all. I was not looking, is
it a gun, I didn’t care. I wasn’t paying attention like that.”

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 Detectives who processed the crime scene recovered no firearms, shell
casings or bullets.
The Chief Medical Examiner for San Diego County performed an
autopsy on Abou and testified he sustained four gunshot wounds from a
distant to intermediate range, and some in a downward direction. The cause
of death was multiple gunshot wounds, and the manner of death was
homicide.
DISCUSSION
I. Instructional Error Claim
A. Lack of Evidence to Support the Jury Instruction
Relying solely on Q.P.’s testimony, Rosales contends the trial court
erroneously declined his request for an imperfect self-defense jury instruction
on grounds that Rosales did not testify. Rosales sets forth the entire evidence
supporting his contention: “Although [Q.P.] did not use the term self-defense,
he nevertheless described what each combatant did in a way that strongly
suggested Rosales responded defensively to Abou’s aggression in fear for his
life. [¶] [Q.P.] testified, for example, that during what was a very physical
altercation, the two combatants ended up fighting in and out of a car parked
in the parking lot. At one point, [Q.P.] saw Abou step back from the car and
point something at Rosales, whereupon Rosales turned and ran to the back of
the car, looking ‘really scared,’ ducking and dodging with his head and
shoulders, crouching down, and swaying from left to right with his head and
shoulders.”
Rosales further argues the same basis for the court’s instruction on
perfect self-defense supported giving the imperfect self-defense instruction:
“Clearly, [Q.P.] presented what was substantial evidence to have warranted
an instruction as to perfect self-defense, but it therefore was also sufficient to

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warrant an instruction as to imperfect self-defense as well. For some reason,
however, the court was under the misguided impression that in the imperfect
self-defense context (as opposed to perfect self-defense) a defendant’s
subjective belief could only be established through that person’s own
testimony. . . . [T]his was an incorrect understanding of the law. [¶]
Because there was substantial evidence supporting the subjective component
of the two self-defense doctrines, and because self-defense was Rosales’ sole
defense to the murder charge, the court erred in concluding an instruction as
to imperfect self-defense could not be given. Furthermore, conditioning
giving the imperfect self-defense instruction on Rosales testifying deprived
Rosales of his Sixth Amendment right to present a defense.”
A. Background
In discussing motions in limine with the parties, the court stated its
intent to instruct on self-defense: “You’ve got [Q.P.] who says there’s a
fistfight. And then after the fistfight, [ ] Abou pointed something at
something, [sic] and then [Q.P.] leaves and then there’s some shots fired.
Okay. I mean, I think it’s appropriate given those facts that we give a self-
defense instruction or a perfect self-defense [instruction] if the defendant
testifies.”
After Q.P. testified, defense counsel requested a voluntary
manslaughter jury instruction based on imperfect self-defense. The
prosecutor objected that no evidence was introduced regarding Rosales’s
subjective thought processes: “[T]here should have to be evidence of what he
was actually perceiving[.]” The court tentatively modified its earlier ruling in
that it no longer qualified the giving of a perfect self-defense jury instruction
on whether Rosales testified: “The basis is that they were in a huge fist fight
and [Q.P.] describes a very robust fight between the two of them. And there’s

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kind of a lot of running around and scurrying around. But they’re still
engaged in conflict and so there’s evidence that something was pointed at Mr.
Rosales.”
However, the court deferred ruling on imperfect self-defense pending
any testimony from Rosales. After the defense rested with Rosales not
testifying, the court revisited the matter in this colloquy with defense
counsel:
“[The court]: . . . first of all, [defense counsel], are you asking for [a
lesser included offense] of manslaughter?
“[Defense counsel]: I am, your honor.
“[The court]: Okay. And so I think the only—there’s two types of
manslaughter[;] honest but unreasonable and heat of passion. [Rosales] did
not testify, so I think that precludes the giving of honest but unreasonable
[instruction]. Do you agree with that?
“[Defense counsel]: I would agree with that.
“[The court]: Okay. And so I think that then we’ll do the [lesser
included offense], it will be heat of passion. Is there any other [lesser
included offense] that you are asking for?
“[Defense counsel]: That’s the only [lesser included offense]. But we
have not gone over the self-defense instruction.
“[The court]: Right, and self-defense is another instruction that we
would be giving.”
Defense counsel argued in closing that as Abou attacked Rosales with a
gun, Rosales shot him in self-defense.
The court instructed the jury with CALCRIM No. 505 on perfect self-
defense and with CALCRIM No. 571 on voluntary manslaughter based on
heat of passion.

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B. Applicable Law
Murder is “the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) “ ‘A defendant who commits an intentional
and unlawful killing but who lacks malice is guilty of . . . voluntary
manslaughter.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 153
(Breverman), quoting § 192.) Voluntary manslaughter is a lesser included
offense of murder. (People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Lesser
included offenses of first degree premeditated murder include second degree
murder, voluntary manslaughter, and involuntary manslaughter”];
Breverman, at p. 154.)
“A killing committed because of an unreasonable belief in the need for
self-defense is voluntary manslaughter, not murder.” (People v. Elmore
(2014) 59 Cal.4th 121, 129.) “[I]mperfect self-defense is not an affirmative
defense, but a description of one type of voluntary manslaughter.” (People v.
Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).) A killing based upon an
unreasonable belief in the need for self-defense obviates malice because
malice cannot coexist with an actual belief that the lethal act was necessary
to avoid death or serious bodily injury. (Ibid, citing People v. Beltran (2013)
56 Cal.4th 935, 951.)
A trial court has a sua sponte duty to instruct on voluntary
manslaughter as a lesser included offense of murder whenever there is
evidence from which a reasonable jury could conclude that a manslaughter,
but not a murder, was committed. (People v. Elmore, supra, 59 Cal.4th at p.
134; Breverman, supra, 19 Cal.4th at p. 162.)
The California Supreme Court has stated: “An instance of imperfect
self-defense occurs when a defendant acts in the actual but unreasonable

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belief that he or she is in imminent danger of great bodily injury or death.
[Citation.] Imperfect self-defense differs from complete self-defense, which
requires not only an honest but also a reasonable belief of the need to defend
oneself. . . . [¶] . . . Substantial evidence is evidence from which a jury could
conclude beyond a reasonable doubt that the lesser offense was committed.
[Citations.] Speculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense.” (People v. Simon (2016) 1
Cal.5th 98, 132-133.)
“In deciding whether evidence is ‘substantial’ in this context, a court
determines only its bare legal sufficiency, not its weight.” (Breverman, supra,
19 Cal.4th at p. 177.) “[C]ourts should not evaluate the credibility of
witnesses, a task for the jury.” (Id. at p. 162.) “We review de novo a trial
court’s decision not to give an imperfect self-defense instruction.” (People v.
Simon, supra, 1 Cal.5th at pp. 132-133.)
In Manriquez, supra, 37 Cal.4th 581, the court addressed defendant’s
claim the trial court erroneously failed to instruct on imperfect self-defense:
“[W]e examine a record in the present case that is devoid of evidence
suggesting that . . . [defendant] harbored an actual belief in the need for self-
defense against an imminent danger to life or great bodily injury.” (Id. at p.
581.) The court summarized the testimony and concluded it “at most
revealed that defendant may have harbored some fear of future harm but
provided no indication that [he] ‘actually, but unreasonably, believed he was
in imminent danger of death or great bodily injury’ [citation], the evidence
clearly was insufficient to require the giving of defendant’s requested
instruction regarding imperfect self-defense. [Citation.] We therefore
conclude the trial court correctly refused to instruct the jury on imperfect
self-defense.” (Id. at p. 582.)

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C. Analysis
The only eyewitness to a portion of the altercation, Q.P., was stopped in
traffic for approximately 10 to 12 seconds and caught a fleeting glimpse of the
parties, but he did not hear anything they might have said. He saw no gun at
the scene. He saw Abou grab an object (which Q.P. believed was perhaps an
umbrella) and point it at Rosales. In response, Rosales ran to a car and
started rifling through its glove compartment. Rosales afterwards ran,
dodged and ducked, and looked scared. At that point, Q.P. left because traffic
moved on. The absence of the sounds and words the men might have used
during the fight limits any inference that may be drawn regarding Rosales’s
mental state. Further, the fact Q.P. left before any weapon was fired leaves a
gap in the record as to what happened leading up to a gun appearing and
ending up in the hand of Rosales, who fired it, killing Abou. Here too, the
record is “devoid of evidence suggesting” (Manriquez, supra, 37 Cal.4th 581)
Rosales believed he was in imminent danger of death or great bodily injury to
support an imperfect self-defense instruction.
The California Supreme Court has stated that “[t]he belief required to
support imperfect self-defense is that the defendant ‘was in imminent danger
of death or great bodily injury.’ [Citation.] This doctrine is a ‘ “narrow” ’ one
and ‘will apply only when the defendant has an actual belief in the need for
self-defense and only when the defendant fears immediate harm that
“ ‘ “must be instantly dealt with.” ’ ” ’ ” (People v. Landry (2016) 2 Cal.5th 52,
97-98; accord, Manriquez, supra, 37 Cal.4th at p. 581.) The evidence here
simply does not comport with Landry. While “[t]he trial court must give
instructions on every theory of the case supported by substantial evidence,
including defenses that are not inconsistent with the defendant’s theory of

10
the case,” instructions based solely on conjecture and speculation should not
be given. (People v. Young (2005) 34 Cal.4th 1149.)
Even if we concluded the trial court committed instructional error, any
presumed error was harmless. Depending upon the basis of the claimed
error, instructional error is reviewed under either Chapman v. California
(1967) 386 U.S. 18, 24 (Chapman) or People v. Watson (1956) 46 Cal.2d 818,
836 (Watson). Under the more stringent Chapman standard, which applies
to errors of constitutional dimension, reversal is required unless the
reviewing court can conclude beyond a reasonable doubt that the error did
not contribute to the verdict. (Chapman, at p. 24.) Under the alternative
Watson standard, which applies to errors of state law, reversal is not required
unless it is reasonably probable the defendant would have obtained a more
favorable result had the error not occurred. (Watson, at p. 836.) We need not
decide whether the Chapman or Watson standard for prejudicial error applies
here because the error was harmless under either standard. The jury’s
verdict finding Rosales guilty of second degree murder implicitly rejected the
defense claim he acted in self-defense, “leaving no doubt the jury would have
returned the same verdict had it been instructed regarding imperfect self-
defense. [Citation.] Accordingly, even if we were to assume the failure to
instruct on imperfect self-defense violated defendant’s constitutional rights,
we would find the error harmless.” (Manriquez, supra, 37 Cal.4th 547, at p.
582.)
We also point out that apart from the fact there was no eyewitness to
the actual shooting, Rosales had gone to Abou’s shop in the weeks before the
murder, and was loud and aggressive, and used foul language in demanding
his mail. Also, police recovered no gun at the crime scene. Further, after
killing Abou, Rosales immediately fled to Mexico. The jury was instructed

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with CALCRIM No. 372 that a defendant’s flight may show his consciousness
of guilt.
As to Rosales’s claim that the same evidence supported the instruction
on perfect self-defense and imperfect self-defense, we find no error. The
California Supreme Court addressed a similar contention and ruled:
“Because we conclude there was not substantial evidence supporting
[defendant’s] actual belief that he was in imminent danger of great bodily
injury or death, the trial court would not have erred had it likewise refused to
instruct on complete self-defense.” (People v. Simon, supra, 1 Cal.5th at
pp.131-134.) The same analysis applies here. Rosales received a benefit
when the court instructed on perfect self-defense based solely on Q.P.’s
fleeting perceptions that did not include any substantial evidence regarding
Rosales’s state of mind.
In arguing the court’s error was prejudicial, Rosales relies on People v.
Viramontes (2001) 93 Cal.App.4th 1256. But that case does not help him
because, unlike here, that court found “[t]he evidence supported instruction
on both self-defense and imperfect self-defense.” (Id. at p. 1263.) Specifically,
two witnesses “testified they saw someone shoot at appellant first. This
testimony was supported by undisputed forensics evidence establishing the
use of two guns, with at least one shot fired from one gun and at least seven
shots fired from the other gun. Numerous witnesses described hearing a
pause between the first shot and subsequent shots, and [one witness]
testified it sounded as if two different guns were firing from different areas in
the garage. If the jury believed these witnesses, it could find appellant had
an actual belief that he was in imminent peril and that lethal force was
necessary to defend himself against the person who shot at him. Such a
belief would appear to be objectively reasonable.” (Ibid.)

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 Equally unavailing is Rosales’s reliance on People v. Vasquez (2006) 136
Cal.App.4th 1176, in which the Court of Appeal reversed the trial court’s
denial of a motion to instruct on self-defense, and ruled the record supported
that instruction: “The prosecution’s chief witness against appellant testified
[the victim] was choking appellant when appellant drew his gun and shot
[him]. It was for the jury sitting as the trier of fact to decide whether
appellant actually feared serious injury or death from being choked.” (Id. at
p. 1179.) In this case, the record contains no substantial evidence about the
circumstances of the shooting and Rosales’s mental state.
Rosales contends the court erred as a matter of law by ruling it could
instruct on imperfect self-defense only if Rosales testified, and it violated his
constitutional rights to a fair trial, to present a defense, not to testify, and to
due process. Rosales misapprehends the court’s ruling on the motion in
limine, which occurred after Q.P.’s testimony. The court withheld a final
decision on whether to instruct on imperfect self-defense until after Rosales
elected whether to testify, as his testimony would provide the last possible
opportunity to fill the evidentiary gap in the record regarding insights into
his state of mind. In that context, after Rosales exercised his constitutional
right not to testify, the court definitively concluded the record lacked any
substantial evidence supporting an imperfect self-defense instruction and
therefore declined to give it. In light of the above analysis, we find no basis
for Rosales’s claim that “[t]he court thus treated it as a principle of law that
to warrant an instruction as to imperfect self-defense, Rosales’s subjective
mental state could only be shown by his own testimony to that effect.” The
court’s comments were limited to the specific context of this case based on the
way the record was developed and the absence of substantial evidence that
Rosales actually but unreasonably believed he was in imminent danger.

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 Although the court stated it denied the instruction based on Rosales’s
failure to testify, we review the ruling, not the court’s reasoning, and because
the record lacks substantial evidence to support giving the instruction, its
ruling was correct regardless of its reasons. (People v. Camacho (2022) 14
Cal.5th 77, 123 [“we review the trial court’s ruling, ‘not the court’s reasoning
and, if the ruling was correct on any ground, we affirm’ ”].)
D. Ineffective Assistance of Counsel Claim
Rosales further claims that to the extent defense counsel invited the
court’s error and agreed with the trial court’s decision not to instruct the jury
on imperfect self-defense absent Rosales’s testimony, counsel provided
ineffective assistance.
Under Strickland v. Washington (1984) 466 U.S. 668, to make out a
claim for ineffective assistance of counsel, the defendant must show that (1)
counsel’s performance was deficient, and (2) defendant was prejudiced; that
is, there is a reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.
(Id. at p. 689.) In reviewing this claim, we give significant deference to trial
counsel’s reasonable tactical decisions, and the “ ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.’ ” (People v. Lucas (1995) 12 Cal.4th 415, 437, quoting Strickland,
at p. 689.) It is not necessary to determine “ ‘counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063,
1079, quoting Strickland, at p. 697.) “ ‘Surmounting Strickland’s high bar is

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never an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105.) And it
is “particularly difficult” for a defendant to prevail on direct appeal on a claim
of ineffective assistance by trial counsel. (People v. Mai (2013) 57 Cal.4th
986, 1009.)
Having concluded no substantial evidence supported the imperfect self-
defense instruction and any error the court committed in refusing to give it
was harmless, we likewise conclude Rosales cannot make out the necessary
showing of prejudice caused by defense counsel’s failure to object to the
court’s denial of that instruction. Under the above authority, in the absence
of prejudice, the ineffective assistance of counsel claim fails, as there is no
reasonable probability of a different result absent defense counsel’s conduct.
II. Additional Ineffective Assistance of Counsel Claim
Rosales contends his trial counsel also provided ineffective assistance
by failing to object to misconduct by the prosecutor, who several times in
examining witnesses during trial used the word “murder” to refer to the
underlying incident.
Rosales recognizes any claim of prosecutorial misconduct is forfeited
because his trial counsel failed to object to the prosecutor’s comments. He
nevertheless argues there was reversible error: “Ultimately, absent the
constant hammering home by the prosecutor that the killing was murder, a
reasonable probability exists that but for counsel failing to have objected, the
result in this case would have been more favorable to Rosales. At the very
minimum, in light of the severity of the misconduct in this case, that
misconduct going to the very heart of Rosales’ defense, any and all confidence
in the jury’s second degree verdict murder was undermined by the
prosecutor’s careful grooming. The prejudice being apparent, reversal is
compelled.”

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 The People acknowledge the prosecutor erred, adding: “It is regrettable
that the prosecutor’s use of the term ‘murder’ during witness examinations
was not immediately objected to.” They also recognize defense counsel’s
representation fell below an objective standard of reasonableness, as Rosales
“conceded killing [Abou], but claimed to have done so in self-defense.
Therefore, the issue of the case was whether the killing was murder, or a
lawful killing. Under this circumstance it is difficult to conceive any tactical
reason to not object.” The People nonetheless argue there was no prejudicial
error based on the jury instructions the court gave.
The California Supreme Court has ruled that a “killing” should not be
“characterized as ‘murder’ in advance of a verdict so finding.” (People v.
Garbutt (1925) 197 Cal. 200, 209; see People v. Price (1991) 1 Cal.4th 324, 480
[“Although it would be improper for a prosecutor to use the term ‘murder’ in
questioning a witness about an unadjudicated killing, a prosecutor is of
course free to argue to the jury, after all the evidence had been presented,
that it should find that a killing was murder”].) In light of the above
authority, we conclude the prosecutor’s numerous references to “murder”
during examination of the witnesses were improper. It was the jury’s role to
decide the ultimate question of whether Rosales committed murder or acted
with justification so as to reduce the charge to voluntary manslaughter.
However, Rosales has failed to demonstrate how an objection sustained
by the trial court and the striking of these references would have resulted in
a more favorable verdict. Even without the prosecutor’s use of those
references, the jury was aware from the prosecutor’s arguments that the
prosecutor believed Rosales to be guilty of murder as charged.
Further, the trial court gave proper instructions defining the elements
of the offense, reasonable doubt, heat of passion and self-defense. It also

16
correctly informed the jury of its duty to decide Rosales’s guilt on the charges,
and that the attorneys’ comments are not evidence. We presume that jurors
are intelligent people, capable of understanding and applying the jury
instructions given. (People v. Spaccia (2017) 12 Cal.App.5th 1278, 1287;
People v. Henley (1969) 269 Cal.App.2d 263, 271.) We conclude that in light
of the entire record and the Strickland standard set forth above, Rosales has
not shown prejudice to sustain this ineffective assistance of counsel claim.
III. Evidence Regarding the Victim’s Prior Acts
Rosales contends that under Evidence Code section 1103, “[t]he trial
court erred, as a matter of law, in ruling that because there was no evidence
[he] knew of the acts of domestic violence committed by Abou, the evidence of
violent act upon [Abou’s] wife was inadmissible.” (Emphasis and some
capitalization omitted.)
A. Background
Rosales moved in limine to introduce character evidence under
Evidence Code section 1103; specifically that in 2001, Abou engaged in
domestic violence, pleaded guilty to that crime in 2002, and was arrested
again in 2011 for hitting his wife and making a criminal threat. He argued in
part, “The evidence is also relevant to support a claim of lawful self-defense.
[ ] Abou’s specific instances of prior violence and confrontational behavior can
be used as circumstantial evidence that [ ] Rosales encountered a violent and
dangerous individual where any reasonable person in the same situation
would have found themselves in a position where self-defense was reasonable
and necessary.”
The prosecutor opposed the motion: “First, there is little evidence to
suggest self-defense. [Abou] had no gun, and he was shot [four] times. [Q.P.]
did see a scuffle, but nothing to support the use of deadly force. Thus, this

17
evidence would be likely more so an attempt to simply attack the character of
an individual who was murdered. [¶] Second, the 2011 incident did not
result in a conviction and there did not appear to be any witness aside from
[Abou’s wife]. Thus, should the defense introduce this it would create a trial
within a trial as to whether the incident occurred and would be fairly time
consuming. [¶] Lastly, there are many accounts of [ ] Abou otherwise being a
great person and not a violent person.”
The court excluded the evidence, in part on Evidence Code section 352
grounds that any probative value was outweighed by substantial prejudice:
“I just don’t think that the fact that [Abou] was arrested for harming his wife
does not add [sic] that much to the equation, but it’s going to take a lot of
effort and witnesses and time to put on. So I just don’t think that—and we’re
going to be litigating that or the family dynamics and I don’t think that’s
what this case is about. It’s not about what happened between [ ] Abou and
his family that brought him to this point where he got mad at [Rosales] and
then they got in a fight. So I think that’s extraneous information that’s really
not helpful, and so I’m not going to let that in.”
After the defense rested, counsel moved for a mistrial based on the
prosecutor’s closing argument to the jury regarding Abou’s character. In
denying that motion, the court in passing referred to its earlier decision to
exclude testimony of Abou’s prior acts: “A lot of the issues about the marital

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issues I didn’t let come in about [Abou’s] arrest for domestic violence because

there was no evidence that [Rosales] knew anything about that.”3

3 Defense counsel objected to this statement the prosecutor made in
closing argument: “Is it reasonable that a man [Abou] who had nothing more
than some marital issues would be so upset that he would want to attack
[Rosales] who he treated like family, who he allowed to pick up mail at his
business for no reason other than just being nice and treating him like family
that because of that he was so far at the end of his rope that he went after
[Rosales?]”
Defense counsel conceded to the court, “I did not object at the time the
statement was made; however, I believe that I should have made an
objection. The reason for that is that specifically the objectionable part is the
reference to ‘that a man who had nothing more than some marital issues.’
The issue is that [the prosecutor] is certainly aware that [ ] Abou had more
than just marital issues. He was aware that [Abou] had been arrested three
weeks before, he was on bond for two strikes and a felony spousal battery.
He was aware of the fact that there were issues with [Abou’s] son at the time.
And certainly, the district attorney is given great leeway to argue issues, but
what [the prosecutor] is not allowed to do is argue things that he knows are
not true. I understand that the evidence wasn’t presented. But just because
the evidence wasn’t presented to the jury doesn’t mean the district attorney
can simply ignore the fact that he knows those things to be true.”
The court responded to defense counsel: “So you’re saying that the
evidence was not presented that [Abou] was having all these marital
problems. It seems like I recall there was evidence he had been living in the
shop for a time or something. But that really never got tied to him having
marital issues. And a lot of the issues about the marital issues I didn’t let
come in about his arrest for domestic violence because there was no evidence
that your client knew anything about that.”
The court denied the motion, telling defense counsel: “So number one, I
don’t find that it rises to the level of prosecutorial error . . . . Number two, I
don’t find that what was said was highly prejudicial in the context of the
entire case and the evidence in the entire case. And number three, I find that
the time for you to make your objection was when making the statements,
when [the prosecutor] said the things that he said. You did not object at that
time, so I find that this is not timely.”
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B. Applicable Law
Evidence must be relevant to be admissible. (Evid. Code, § 350.)
Relevant evidence is evidence that tends to prove or disprove a disputed
consequential fact. (Evid. Code, § 210; People v. Hardy (2018) 5 Cal.5th 56,
87.)
Evidence Code section 1101, subdivision (a), prohibits the admission of
evidence of a person’s character to prove his conduct on a specified occasion.
Evidence Code section 1103, subdivision (a), provides an exception to that
rule, stating, “In a criminal action, evidence of the character . . . of the victim
of the crime for which the defendant is being prosecuted is not made
inadmissible by [Evidence Code s]ection 1101 if the evidence is: [¶] (1)
Offered by the defendant to prove conduct of the victim in conformity with
the character or trait of character.”
However, the trial court has discretion to exclude evidence under
Evidence Code section 352, “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.” (People v. Hardy, supra, 5 Cal.5th at p. 87;
see also People v. Gutierrez (2009) 45 Cal.4th 789, 827-828 [evidence
admissible under Evidence Code section 1103, subdivision (a), may be
excluded based on Evidence Code section 352 in the trial court’s discretion].)
“We review the trial court’s rulings regarding the admissibility of the
evidence for an abuse of discretion. [Citation.] A trial court’s decision to
admit or exclude evidence “ ‘ “will not be disturbed unless there is a showing
that the trial court acted in an arbitrary, capricious, or absurd manner
resulting in a miscarriage of justice.” ’ ” [Citations.] “This standard of review
affords considerable deference to the trial court provided that the court acted

20
in accordance with the governing rules of law. We presume that the court
properly applied the law and acted within its discretion unless the appellant
affirmatively shows otherwise.” (People v. Mataele (2022) 13 Cal.5th 372,
413-414.)
C. Analysis
The court performed the required balancing and concluded under
Evidence Code section 352 that the evidence of Abou’s prior acts was unduly
prejudicial. Rosales has not demonstrated the court’s weighing was
arbitrary, capricious, or absurd. (People v. Parker (2022) 13 Cal.5th 1, 51.)
In light of the minimal relevance of the evidence and the court’s recognition
of the significant amount of time that would be required to litigate Abou’s
domestic violence conduct, the court was well within its discretion to deny
Rosales’s motion in limine. (People v. Hamilton (2009) 45 Cal.4th 863, 930
[trial court did not abuse its discretion under Evidence Code section 352 by
excluding evidence with limited probative value that “would have required ‘a
mini-trial’ ”].) We conclude the trial court did not abuse its discretion by
excluding the character evidence.
Although Rosales relies on the court stating its decision to exclude the
prior acts evidence was based on the fact Rosales did not testify, we do not
accord significance to that statement. When the court ruled on the motion in
limine, it did not rely on that ground. It only mentioned that statement in
passing in the context of a motion for mistrial, which was brought on a
different ground.
IV. Errors in Reporter’s Transcripts
Rosales contends the reporter’s transcript rendition of the court’s
instructions with CALCRIM Nos. 521 [first degree murder], and 570
[voluntary manslaughter, heat of passion] erroneously used the word

21
“rationally,”4 while the written jury instructions given to the jury used the
correct term, “rashly.” Rosales argues we should reverse his murder
conviction because the error was not harmless.
The court provided the jury with this written standard instruction on
the duties of the judge and jury with CALCRIM No. 200: “Members of the
jury, I will now instruct you on the law that applies to this case. I will give
you a copy of the instructions to use in the jury room. Each of you has a copy
of these instructions to use in the jury room. The instructions that you
receive may be printed, typed, or written by hand. Certain sections may have
been crossed-out or added. Disregard any deleted sections and do not try to
guess what they might have been. Only consider the final version of the

instructions in your deliberations.”5

4 Specifically, in instructing with CALCRIM No. 521 on first degree
murder, the reporter’s transcript shows the court erroneously used the word
rationally: “The decision to kill made rationally, impulsively, or without
careful consideration is not deliberate or premeditated.” (Emphasis added.)
Also, in instructing with CALCRIM No. 570 regarding voluntary
manslaughter, the court orally stated: “Number two, as a result of a
provocation, the defendant acted rationally and under the influence of
intense emotion that obscured his reasoning or judgment. And number three,
the provocation would have caused a person of average disposition to act
rationally and without due deliberation.” (Emphasis added.)

5 In its oral pronouncement, the trial court slightly modified CALCRIM
No. 200: “Members of the jury, I will now instruct you on the law that
applies to the case. I will give you a copy of the instructions to use in the jury
room. Each of you has—actually, I’m just going to give you one copy. It says
here each of you will receive a copy, but you’re going to get one copy for all of
you to consider. All right. The instructions that you receive will all be
typed.”

22
 Rosales acknowledges the source of the transcription error is

unknown.6 He also concedes that one of the erroneous references to
“rationally” in CALCRIM No. 521 was “manifestly harmless” because it “went
to the definition of premeditated murder and the jury found Rosales not
guilty of first degree murder.”
Rosales further concedes the jury sent a note to the trial court
requesting guidance as to the first degree murder instruction in CALCRIM
No. 521, and the jury used the correct term, “rashly,” when discussing the

instruction.7 This undermines Rosales’s claim regarding the discrepancy
between the oral and written pronouncement of the jury instructions, and
shows the jury was relying on the written version of the instructions.
As the California Supreme Court has stated, the law is well settled that
as a general rule, the written instructions govern over oral instructions.
(People v. Osband (1996) 13 Cal.4th 622, 717; accord, People v. Jurado (2006)

6 Rosales explains: “The record does not reveal whether the court and
the prosecutor themselves inadvertently used the term rationally in place of
rashly; whether the court simply misread the instructions and the prosecutor
repeated what he heard; whether the reporter incorrectly heard what was
said; whether the court and the prosecutor were not clear in their enunciation
of the word; or whether it was simply an incorrect transcription by the
reporter. Certainly there can be no question that neither the court nor the
prosecutor intended to use the term rationally instead of rashly, nor is it
clear from the record that they actually did. What we do know, however, is
that what the Reporter’s Transcripts present as having been said must be
addressed here on appeal, because if the transcripts accurately reflect what
was actually said, as unlikely as that otherwise is, Rosales was arguably
prejudiced by the errors.”

7 The jury note, verbatim, sought “clarification” regarding CALCRIM No.
521’s use of the expression, “A decision to kill made rashly . . . , not the
amount of time.”

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38 Cal.4th 72, 123, [“when the jury has received an instruction in both
spoken and written forms, and the two versions vary, we assume the jury was
guided by the written version”].) Here, we have no basis to depart from this
general rule. As the jury relied on the written version of the instruction to
ask the court for a clarification, it likely relied on the correct written version
of the other instruction for its deliberation. Reversal is not warranted.
DISPOSITION
The judgment is affirmed.

O’ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

CASTILLO, J.

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