People v. Rufino CA2/5

Filed 11/17/23 P. v. Rufino CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B317048

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. NA114241)

v.

EDSON EDUARDO RUFINO,

Defendant and
Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed in part,
reversed in part, and remanded.
California Appellate Project, Richard B. Lennon and David
Andreasen, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
 I. INTRODUCTION

A jury found defendant Edson Eduardo Rufino guilty of,
among other charges, second degree murder and assault with a
deadly weapon. On appeal, defendant argues that his second
degree murder conviction must be vacated because he received
ineffective assistance of counsel when his attorney failed to object
to prosecutorial misconduct during closing argument. He also
asserts that he is entitled to a new trial based on certain
instructional and evidentiary errors. Alternatively, he seeks a
remand for resentencing on one of the assault with a deadly
weapon convictions pursuant to Assembly Bill No. 124 (2021–
2022 Reg. Sess.), which the Attorney General concedes.
We reverse defendant’s conviction on the murder count and
remand for resentencing. We otherwise affirm.

II. BACKGROUND

A. Information

The Los Angeles County District Attorney’s Office filed an
information charging defendant with: the murder of Leandro
Maza (Pen. Code, § 187, subd. (a)),1 with an enhancement for
personal use of a deadly weapon (§ 12022, subd. (b)(1)); two
counts of assault with a deadly weapon, against victims Dennis
Herrera and Daniela Gonzalez (§ 245, subd. (a)(1)); contempt of
court (§ 166, subd. (c)(1)); and obstruction of a peace officer
(§ 148, subd. (a)(1)).

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

2
B. Trial2

1. Prosecution’s Case

Defendant, who was then 19-years old, was in a
relationship with Nikole Rivera. She lived in a house in Long
Beach with her adult brother, Herrera, and her mother, Figueroa.
Murder victim Maza and his girlfriend, assault victim Gonzalez,
also lived on the same property in a converted garage. Maza was
30 years old, 5 feet 11 inches tall, and weighed 245 pounds.
In February 2020, Figueroa obtained a restraining order
that required defendant to stay away from her home. On
April 1, 2020, Figueroa told Maza and Gonzalez that defendant
had physically abused Rivera.
On the evening of April 2, 2020, Figueroa suspected that
Rivera was hiding defendant in her bedroom. Figueroa shared
her suspicion with Maza and Gonzalez, who were also inside the
house.
A little after 8:40 p.m., when Rivera went outside to move
her car, Figueroa found defendant inside Rivera’s bedroom.
Figueroa directed defendant to “‘[g]et the fuck out of [her] house.”
Defendant laughed and told Figueroa, “‘“You are going to pay for
this.”’” Figueroa went outside to call 911.

2 Vilma Figueroa, Maria Andres, and Gonzalez all testified
through a Spanish-language interpreter.
Defendant does not dispute his convictions for contempt of
court or obstruction of a peace officer. We therefore omit the
facts supporting those counts from our recitation of the record.

3
 When assault victim Herrera came home from work, he
learned that Figueroa had called the police and went outside to
talk to her.
Defendant then left the bedroom and went into the kitchen,
where he encountered Gonzalez cooking. Defendant picked up a
knife from the counter and pointed it at Gonzalez.3 Gonzalez
backed away in fear and told defendant to calm down.4 She then
screamed, causing Maza to come into the kitchen. Gonzalez told
the police she and Maza tried to “detain” defendant and that
Gonzalez put her hands on defendant’s chest.
At that point, Herrera, who was still outside, heard a loud
smashing sound (which was made by Rivera, who was trying to
break the lock on the security bars to her bedroom window).
Herrera told Rivera that he was going to “fuck up” her boyfriend.
Rivera responded that Herrera should mind his own business.
Defendant, who was still armed with the knife, ran out the
back door of the house and toward the front yard. Rivera
followed closely behind. In the front yard, defendant confronted
Herrera, holding the knife to his face and telling him to move.5
Herrera complied. Defendant then told Herrera, “I thought you
were going to fuck me up.”

3 The knife was 12 inches long and had an eight-inch blade.

4 Gonzalez initially reported to police that defendant said,
“‘“I want to go. I don’t care about anything. I’m going to kill you
all.”’” At trial, however, Gonzalez could not recall defendant
saying anything while he held the knife.

5 The prosecution played video for the jury from a security
camera, which recorded the events outside the house.

4
 By this time, Gonzalez and Maza had joined Figueroa and
Herrera in the front yard. As defendant and Rivera walked along
the street outside the house, Herrera challenged defendant to a
fight. Defendant placed the knife on the trunk of a nearby
parked car. Defendant and Herrera then yelled and cursed at
one another. Maza told Rivera to listen to her mother, and
Rivera told Maza to mind his own business.
Defendant began to walk away while looking back at the
house. When Maza walked through the house’s front gate toward
defendant, defendant retrieved the knife. Defendant then placed
the knife in his sweater pocket and, together with Rivera,
eventually walked away from the house. Herrera and Maza
followed.
Herrera picked up a baseball-sized rock and Maza picked
up a five-foot, seven-inch-long metal pole. Maza and Herrera
then began to chase defendant as he ran away from them.
Defendant eventually ran into the home of Maria Andres.
He told the occupants of the house that he was afraid and to call
the police. Herrera yelled to the occupants that defendant had a
knife. Andres, her friend, and the friend’s child immediately ran
into a bedroom and locked themselves inside. Andres’s son, who
was inside another bedroom, called the police.
Shortly after defendant entered Andres’s house, Herrera
arrived at the house and stopped at the door. Herrera had
dropped the rock somewhere along the path leading to Andres’s
house. When Maza got to the house, he stopped at the bottom of
the four steps that led to the front door as he continued to hold
the metal pole. Rivera arrived next and attempted,
unsuccessfully, to push Herrera out of the way. Herrera pushed
her back.

5
 When defendant appeared at the front door, Herrera, who
had been holding the front door shut, let him leave the house. As
he walked out, defendant waved the knife at Herrera and cursed
at him. Meanwhile, Maza and Rivera yelled at one another.
Herrera saw defendant, who still held the knife, push Maza.
Maza fell to the ground and dropped the pole.6 When Maza got
up, he said Herrera’s name, and touched his now bloody chest.
Herrera picked up the pole and struck defendant in the head.
Defendant grabbed the pole from Herrera’s hands. Maza fell
backwards and Herrera caught him. Herrera stayed with Maza
until the police arrived. Maza later died from a single stab
wound to his chest.
Defendant ran away from the scene, but then returned in a
car to pick up Rivera before driving away.
Hours later, the police arrested defendant, who then
directed them to the location where he had discarded the knife.
Officers also saw vomit nearby. Rivera had a bruise on the right
side of her forehead and defendant had bruises on his arms and
hands.

2. Defense Case

a. Rivera’s testimony

At the time of trial, Rivera remained in her relationship
with defendant. On April 2, 2020, Rivera knew that defendant
was violating a restraining order by being at Rivera’s home. She
believed it would be “bad” for defendant to leave the house

6 Herrera did not see Maza swing the pole at either
defendant or Rivera.

6
through the front door. Rivera therefore tried to break her
bedroom window’s lock with a hammer.
When Rivera arrived at Andres’s house, she asked Maza
not to do anything, but Maza ignored her. She then struck Maza
once or twice, and Maza responded by swinging the pole and
hitting her on the head. Rivera “blacked out” from the strike, fell
backward, and dropped her keys and phone.
Rivera then heard defendant say, “open the gate.” Rivera
complied, and she and defendant then ran down an alley, where
Rivera vomited. She told defendant she needed to retrieve her
dropped items and directed him to get his car. Rivera did not see
defendant holding the pole.
Rivera heard Herrera ask for someone to call an
ambulance, saw Maza on the ground, and ran away. She knew
Maza had been stabbed. Rivera then got into defendant’s car and
the two drove away from the scene. She and defendant were
eventually stopped by the police.
When Rivera spoke to the police, she falsely claimed that
Maza pushed her prior to hitting her with the pole. At trial, she
denied seeing defendant holding a knife at any time during the
evening. And, she did not see Maza swing the pole at defendant.

b. Defendant’s testimony

At the time of his offenses, defendant weighed 125 pounds.
Defendant knew he could not be at Figueroa’s home on
April 2, 2020, because of the restraining order.
Rivera and defendant agreed that it would be best if
defendant left the house through the window. Therefore, Rivera
went outside to try to break the lock to the window. Defendant

7
heard Herrera tell Rivera, “‘We all know that he is in there.
We’re going to fuck him up.’”
Defendant then left the bedroom because he felt pressured
to do so. He saw Maza and Gonzalez standing at the front door.
He tried to move toward the back door, but Gonzalez grabbed his
sweater. Defendant tried to grab Gonzalez’s hands and push her
off him, but he was grabbed by Maza, who slammed him into the
refrigerator and told him he was not going anywhere. Defendant
responded by grabbing a kitchen knife and telling Gonzalez and
Maza to let him leave. Maza and Gonzalez backed away and put
up their hands. Defendant did not recall pointing the knife at
them. He “grabbed the knife because [he] wanted to protect
[himself] against this six-foot man [Maza].”
After defendant and Rivera exited the house, defendant
saw Herrera standing at the front gate. Defendant pointed the
knife at him and said, “‘I thought you were going to fuck me up.’”
Herrera backed away, saying, “‘Chill, bro.’” Figueroa, Maza, and
Gonzalez then joined defendant, Rivera, and Herrera in the front
yard.
Defendant challenged Herrera to a fight. Defendant had
beaten up Herrera two months earlier and was not afraid of him.
Defendant, however, was fearful of the larger Maza. Herrera and
Maza told defendant to put down the knife and “‘fight like a
man.’” Defendant placed the knife on the trunk of a parked car,
but picked it up again when Maza stepped toward him. Maza
and Herrera again told defendant to put the knife down. Rivera
told Maza to mind his own business, and Maza told her to respect
her mother.
Defendant and Rivera then walked away. Although
defendant had planned to walk to his car, defendant started to

8
run when Herrera and Maza picked up weapons from the ground
and began to pursue him.
Defendant eventually ran into a stranger’s home and asked
the two women inside to call the police. Herrera arrived shortly
afterward and yelled for the women to call the police because
defendant had a knife and “was going to kill everybody inside.”
The women fled to a bedroom. Herrera then locked the metal
screen door. Defendant followed the women and again asked
them to call the police. Herrera also repeated that the women
should call the police.
Defendant saw Maza arrive and stand at the bottom of the
steps, holding the pole. Rivera then arrived at the metal screen
door and asked Herrera to let her and defendant leave. Herrera
cursed at Rivera and pushed her away from the door. Defendant
took this moment to exit the house. He “wanted to leave.”
Defendant walked down the steps, past Rivera and
Herrera, and encountered Maza. By this time, defendant had
pulled the knife out of his pocket. As defendant tried to leave,
Maza hit him in the right forearm with the pole. Defendant told
Maza that Maza had “won” and defendant just wanted to leave.
Maza continued to hit defendant with the pole. When Rivera
tried to push Maza out of the way, Maza struck Rivera on the
head with the pole, causing her to fall down.
Defendant was angry that Maza had struck Rivera. After
Maza swung the pole a few more times at defendant, defendant
stabbed Maza in the chest.
Defendant did not remember picking up the pole. Rivera
told defendant to get the car. He threw the knife away as he ran.

9
 After being detained, defendant spoke with the police.7 He
told them that Gonzalez had pushed him. He admitted falsely
telling the police that Herrera had swung a crowbar at him
before the stabbing.

C. Conviction and Sentencing

Following trial, the jury convicted defendant of the second
degree murder of Maza and all other charges. The jury also
found the deadly weapon allegation to be true.
The trial court sentenced defendant to 20 years to life,
consisting of: 15 years to life on count 1, plus one year for the
deadly weapon enhancement; the middle term of three years on
count 2, to be served consecutively; and one year on count 3 (one-
third the middle term of three years), to be served consecutively.
The court stayed the sentences for counts 4 and 5 pursuant to
section 654. Defendant timely appealed.

7 Defendant’s statements to the police were presented during
the prosecution’s rebuttal.

10
 III. DISCUSSION

A. Prosecutorial Misconduct/Ineffective Assistance of Counsel

Defendant contends that his counsel was ineffective in
failing to object when the prosecutor committed prejudicial
misconduct by misstating the law regarding voluntary
manslaughter during closing argument.8

1. Background

During her closing argument, the prosecutor stated: “Heat
of passion. It’s not enough that this defendant was provoked. He
can’t set up his own standard of conduct. It’s whether a person of
average disposition in the same situation knowing the same facts
would have reacted the same way and killed. So it’s not the
defendant’s heat of passion. It’s would a reasonable person have
heat of passion and react and kill. Just something to think about
when you are reviewing the evidence.” Defense counsel did not
object.
During his closing argument, defense counsel argued:
“Now, there is another way to get rid of malice. That is heat of
passion. This one is a little simpler. You have to be provoked.
Requires provocation. Someone has to provoke you. Could be

8 Defendant’s failure to raise an objection forfeits his
prosecutorial misconduct argument on appeal. “It is well settled
that making a timely and specific objection at trial, and
requesting the jury be admonished (if jury is not waived), is a
necessary prerequisite to preserve a claim of prosecutorial
misconduct for appeal.” (People v. Seumanu (2015) 61 Cal.4th
1293, 1328.)

11
lots of different kinds of provocation, but it’s got to be something.
And when that happens, the person has to act rashly. Passion
over judgment. Okay? I wasn’t thinking what I was doing. I was
so upset that I acted. [¶] The classic law example is you walk in
and someone is with your spouse and either he or she acts rashly
without judgment. That is like the law school example. That is
not this. But being attacked with a pole is close. [¶] Without
due deliberation. You didn’t think about it. Again, you didn’t
deliberate it. You acted rashly. What is important to realize is it
doesn’t mean it has to be objective, but it doesn’t mean that you
would have done what he did. It doesn’t mean that you would
have used the knife the way he did. All it means is that there is a
reasonable chance that you would have acted rashly or without
due deliberation as a result of a provocation. There is ample
evidence that that’s the case.”
On rebuttal, the prosecutor argued: “Voluntary
manslaughter heat of passion. Reasonable person gets mad and
stabs? Nope. Don’t get that one either. When you stab
somebody because you’re mad and you stab them in the chest,
that’s your malice.” Defense counsel did not object.

2. Applicable Law

“Manslaughter is a lesser included offense of murder.
(§ 192; People v. Thomas (2012) 53 Cal.4th 771, 813.) The mens
rea element required for murder is a state of mind constituting
either express or implied malice. A person who kills without
malice does not commit murder. Heat of passion is a mental
state that precludes the formation of malice and reduces an
unlawful killing from murder to manslaughter. Heat of passion

12
arises if, ‘“at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would
cause the ordinarily reasonable person of average disposition to
act rashly and without deliberation and reflection, and from such
passion rather than from judgment.”’ (People v. Barton (1995) 12
Cal.4th 186, 201.)” (People v. Beltran (2013) 56 Cal.4th 935, 942,
fn. omitted (Beltran).)
“A heat of passion theory of manslaughter has both an
objective and a subjective component. [Citations.] [¶] ‘“To
satisfy the objective or ‘reasonable person’ element of this form of
voluntary manslaughter, the accused’s heat of passion must be
due to ‘sufficient provocation.”’” [Citation.]’ [Citation.] ‘[T]he
factor which distinguishes the “heat of passion” form of voluntary
manslaughter from murder is provocation. The provocation
which incites the defendant to homicidal conduct in the heat of
passion must be caused by the victim [citation], or be conduct
reasonably believed by the defendant to have been engaged in by
the victim. [Citations.] The provocative conduct by the victim
may be physical or verbal, but the conduct must be sufficiently
provocative that it would cause an ordinary person of average
disposition to act rashly or without due deliberation and
reflection. [Citations.]’ [Citation.]” (People v. Moye (2009) 47
Cal.4th 537, 549–550.)
The objective component of provocation need not be such
that it would cause a person of average disposition to kill.
“Adopting a standard requiring such provocation that the
ordinary person of average disposition would be moved to kill
focuses on the wrong thing. The proper focus is placed on the
defendant’s state of mind, not on his particular act. To be
adequate, the provocation must be one that would cause an

13
emotion so intense that an ordinary person would simply react,
without reflection. To satisfy [the standard in People v. Logan
(1917) 175 Cal. 45], the anger or other passion must be so strong
that the defendant’s reaction bypassed his thought process to
such an extent that judgment could not and did not intervene.
Framed another way, provocation is not evaluated by whether
the average person would act in a certain way: to kill. Instead,
the question is whether the average person would react in a
certain way: with his reason and judgment obscured.” (Beltran,
supra, 56 Cal.4th at p. 949.) The People have the burden of
proving beyond a reasonable doubt that the defendant did not kill
because of heat of passion. (Id. at pp. 944–945; see CALCRIM
No. 570.)9

9 The jury was instructed on voluntary manslaughter and
heat of passion with CALCRIM No. 570, which stated, in
pertinent part: “A killing that would otherwise be murder is
reduced to voluntary manslaughter if the defendant killed
someone because of a sudden quarrel or in the heat of passion.
[¶] The defendant killed someone because of a sudden quarrel or
in the heat of passion if: [¶] 1. The defendant was provoked; [¶]
2. As a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured his
reasoning or judgment; [¶] AND [¶] 3. The provocation would
have caused a person of average disposition to act rashly and
without due deliberation, that is, from passion rather than from
judgment. [¶] . . . It is not enough that the defendant simply
was provoked. The defendant is not allowed to set up his own
standard of conduct. You must decide whether the defendant
was provoked and whether the provocation was sufficient. In
deciding whether the provocation was sufficient, consider whether
a person of average disposition, in the same situation and
knowing the same facts, would have reacted from passion rather
than from judgment.” (Italics added.)

14
 Even when the trial court gives a correct instruction on
heat of passion, such as with CALCRIM No. 570, a prosecutor’s
misstatements can still result in error. (See Beltran, supra, 56
Cal.4th at p. 954 [finding prosecutor’s examples that suggested
“the jury should consider the ordinary person’s conduct and
whether such a person would kill” was incorrect standard and
“muddied the waters” regarding the jury’s understanding of the
court’s instructions]; see also People v. Collins (2021) 65
Cal.App.5th 333, 341 (Collins) [finding prosecutorial error where
prosecutor repeatedly misstated law regarding fear as element of
robbery during closing argument, even though court delivered
correct instruction].) “Advocates are given significant leeway in
discussing the legal and factual merits of a case during
argument. [Citation.] However, ‘it is improper for the prosecutor
to misstate the law generally [citation] . . . .’ [Citations.] To
establish such error, bad faith on the prosecutor’s part is not
required. [Citation.] ‘[T]he term prosecutorial “misconduct” is
somewhat of a misnomer to the extent that it suggests a
prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.
[Citation.]’” (People v. Centeno (2014) 60 Cal.4th 659, 666–667
(Centeno).)
“To demonstrate ineffective assistance of counsel,
[defendant] ‘must show that counsel’s performance was deficient,
and that the deficiency prejudiced the defense.’ [Citations.] On
direct appeal, a finding of deficient performance is warranted
where ‘(1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or
(3) there simply could be no satisfactory explanation.’ [Citation.]

15
‘[W]here counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective
assistance of counsel on appeal unless there could be no
conceivable reason for counsel’s acts or omissions.’” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1165.)

3. Analysis

We conclude that the prosecutor here misstated the law
when, during closing argument, she described the objective
standard for heat of passion as “whether a person of average
disposition in the same situation knowing the same facts would
have reacted the same way and killed.” She then compounded
the misstatement by adding, “So it’s not the defendant’s heat of
passion. It’s would a reasonable person have heat of passion and
react and kill.” The prosecutor’s argument that the heat of
passion doctrine did not apply if defendant’s reaction was not a
reasonable one, is directly contrary to Beltran, supra, 56 Cal.4th
at page 949, which emphasized that the jury need not find that
defendant’s action in response to a provocation be reasonable,
and that the proper focus is on defendant’s state of mind, not his
act.
Thus, we next consider whether defense counsel was
ineffective in failing to object to the argument. According to the
Attorney General, defense counsel may have rationally decided
that he should not focus on the prosecutor’s argument regarding
provocation because counsel’s own argument was sufficient on
the issue of reasonableness and the jury instruction appropriately
conveyed the law. We disagree.

16
 Defense counsel argued extensively during closing
argument that defendant acted without malice and emphasized,
among other things, the evidence that supported a finding that
defendant had acted under the heat of passion. And, defense
counsel’s own argument regarding heat of passion, albeit correct,
did not adequately cure the prosecutor’s initial misstatement of
the law. Indeed, in Beltran, supra, 56 Cal.4th 935, our Supreme
Court noted that, after the prosecutor’s closing argument
misstated the law, “[d]efense counsel’s jury argument countered
the prosecutor’s statements and suggested the law ‘doesn’t say
the provocation would have caused a person of average
disposition to kill . . . . [I]nstead the law is provocation that
causes a person to act rashly impulsively without thinking.’” (Id.
at pp. 954–955.) Nonetheless, our Supreme Court found that
“[t]hese competing formulations by the advocates may have
confused the jury’s understanding of the court’s instructions.”
(Id. at p. 955.)
Moreover, even after defense counsel correctly stated the
standard for heat of passion, the prosecutor, who had the last
word, again misstated the requirements for heat of passion.
During rebuttal, the prosecutor asked the rhetorical question,
“Reasonable person gets mad and stabs?” and answered it by
stating, “Nope.” By so doing, the prosecutor reiterated, contrary
to Beltran, supra, 56 Cal.4th 935, that in order to reduce the
murder charge to voluntary manslaughter, the jury was required
to find that defendant’s act in response to the provocation was a
reasonable one. On this record, we can conceive of no reasonable
tactical purpose for defense counsel to not object to the
prosecutor’s misstatement of the law on this issue. (See Centeno,
supra, 60 Cal.4th at pp. 675–676 [finding error when defense

17
counsel failed to object to prosecutor’s example during closing
argument, which lowered the prosecutor’s burden of proof].)
Accordingly, we conclude counsel’s performance was deficient.
We next consider whether defendant was prejudiced by
counsel’s failure to object to the prosecutor’s misstatement.
“Prejudice means a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’ [Citation.] A reasonable probability means a
‘probability sufficient to undermine confidence in the outcome.’
[Citation.]” (People v. Najera (2006) 138 Cal.App.4th 212, 225;
accord, People v. Kaihea (2021) 70 Cal.App.5th 257, 268.)
Here, the error was prejudicial. Because the prosecutor’s
misstatement did not directly contradict CALCRIM No. 570, the
jury could have reasonably construed it as a further, albeit
legally incorrect, explanation of the court’s instruction. (Beltran,
supra, 56 Cal.4th at pp. 954–955; see Collins, supra, 65
Cal.App.5th at p. 341.) And, unlike in Beltran, the trial court did
not clarify the instruction to the jury. (Beltran, supra, 56 Cal.4th
at p. 956.) Further, the jury, after being instructed that
“[p]rovocation may reduce a murder from first degree to second
degree” (CALCRIM No. 522), found defendant guilty of second
degree murder and therefore necessarily found that defendant
subjectively acted rashly and without due deliberation. (People v.
Jones (2014) 223 Cal.App.4th 995, 1000.) Finally, the evidence of
provocation was relatively strong. (See People v. Weaver (2001)
26 Cal.4th 876, 971 [considerations of prejudice include, among
other things, whether there was “overwhelming negative
evidence against defendant”]; In re Gay (2020) 8 Cal.5th 1059,
1087 [“How readily deficient performance undermines confidence
in the trial’s outcome will in part depend on the strength of the

18
trial evidence on any decisive points. A ‘verdict or conclusion
only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support’”].)
Both defendant and Rivera testified that Maza struck
Rivera in the head with a metal pole. Defendant also testified
that Maza then used the pole to strike him. The physical
evidence supported defendant and Rivera’s testimony, as Rivera
had bruising to her forehead and defendant had bruises on his
arms and hands. Herrera’s contrary testimony, that he did not
see Maza swing the pole, was not so overwhelming as to render
the prosecutor’s misstatement harmless.
We reject the Attorney General’s contention that the lack of
credibility in defendant and Rivera’s testimony supports a
contrary result. Although defendant and Rivera admitted that
some of their trial testimony differed from what they told the
police, those inconsistencies do not render the evidence against
defendant so overwhelming that the prosecutor’s misstatement of
the law as to heat of passion was harmless.10 We therefore must
reverse defendant’s conviction for second degree murder.11

10 The Attorney General contends that Maza and Herrera
were engaged in a citizen’s arrest of defendant (see § 837), and
thus any conduct in restraining defendant was not sufficient
provocation because “the individual that committed the offense
has a duty not to resist.” We disagree. The Attorney General has
cited no legal authority in support of his conclusion that force
used during a citizen’s arrest is insufficient provocation for heat
of passion as a matter of law, and we have found none.

11 Because we reverse for a new trial on the second degree
murder conviction for count 1, we need not discuss the parties’

19
B. Instructional Error

1. Self-Defense in Non-Homicide Cases

Defendant next argues that the trial court erred by failing
to instruct the jury with CALCRIM No. 3470, which explains the
right to self-defense and defense of another for non-homicide
crimes.
“We review claims of instructional error de novo. (People v.
Cole (2004) 33 Cal.4th 1158.) ‘The proper test for judging the
adequacy of instructions is to decide whether the trial court “fully
and fairly instructed on the applicable law.”’ (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111–1112.) ‘“‘In determining
whether error has been committed in giving or not giving jury
instructions, we must consider the instructions as a whole . . .
[and] assume that the jurors are intelligent persons and capable
of understanding and correlating all jury instructions which are
given.’”’ (Ibid.)” (People v. Waxlax (2021) 72 Cal.App.5th 579,
591 (Waxlax).)
The trial court instructed the jury on self-defense with
CALCRIM No. 505, which describes the right to self-defense in
homicide crimes, but it did not additionally instruct the jury with
CALCRIM No. 3470. We conclude the court thereby erred. (See
Waxlax, supra, 72 Cal.App.5th at pp. 591–592 [“The difference
between CALCRIM No. 3470 and CALCRIM No. 505—that is,
the difference between self-defense in the homicide context and
self-defense that will justify an assault—lies in the type of the
threat the defendant believed they faced. To justify a homicide or

other arguments concerning instructional error regarding self-
defense and homicide.

20
attempted homicide, the defendant must believe that ‘danger [of
death]’ or ‘great bodily [injury]’ is imminent, whereas an assault
committed in self-defense may be justified if the defendant feared
that any ‘bodily injury,’ or even an ‘unlawful touching,’ was
imminent. For both homicide and assault, the amount of force
the defendant uses must be no more than reasonably necessary to
fend off the perceived threat”].)12
We conclude, however, that the trial court’s error was
harmless under either the Watson or Chapman13 standard of
review. (See People v. Gonzalez (2018) 5 Cal.5th 186, 199 [“we
have yet to determine whether a trial court’s failure to instruct
on a requested affirmative defense instruction supported by
substantial evidence is federal constitutional error or state law
error”].)14

12 We reject the Attorney General’s contention that defendant
forfeited the instructional error here. Because the trial court had
a sua sponte duty to instruct, there was no trial action required
by the defendant to preserve his argument for appeal. (People v.
Andrews (2015) 234 Cal.App.4th 590, 601, fn. 4.)
Because we conclude the trial court had a sua sponte duty
to give CALCRIM No. 3470, we do not consider defendant’s
alternative argument that his counsel provided ineffective
assistance by failing to request it. (People v. Millbrook (2014) 222
Cal.App.4th 1122, 1136, fn. 7.)

13 People v. Watson (1956) 46 Cal.2d 818 (Watson) and
Chapman v. California (1967) 386 U.S. 18 (Chapman).

14 Under the federal test for prejudice, the state must
demonstrate that the error was harmless beyond a reasonable
doubt. (Chapman, supra, 386 U.S. at p. 24.)

21
 “‘“To justify an act of self-defense for [an assault charge
under section 245], the defendant must have an honest and
reasonable belief that bodily injury is about to be inflicted on
him.”’ [Citation.] . . . Additionally, ‘[t]he threat of bodily injury
must be imminent’ and the force used in response ‘“reasonable
under the circumstances.”’ [Citation.]” (People v. Brady (2018)
22 Cal.App.5th 1008, 1014.)
As to Herrera, although he earlier said that he would “fuck
[defendant] up,” by the time defendant pointed a knife at him,
Herrera was unarmed, standing by the front gate of his home,
and had not touched defendant. Moreover, defendant testified
that he was not afraid of Herrera and had defeated him in a fight
two months earlier. We conclude no jury would have found
defendant’s use of the knife against Herrera to be reasonable.
As to Gonzalez, under defendant’s version of events, she
grabbed defendant’s sweater and Maza slammed him into a
refrigerator. But, defendant admitted that when he grabbed the
knife and told Gonzalez and Maza that they had to let him leave,
Gonzalez and Maza immediately put up their hands. The jury,
having convicted defendant of assault with a deadly weapon,
necessarily found that: (1) the knife was a deadly weapon,
(2) defendant did an act that by its nature would directly and
probably result in force being applied to Gonzalez, and (3) the
force was likely to produce great bodily injury.15 (See CALCRIM

15 The jury was instructed that, to convict defendant of
assault with a deadly weapon, “the People must prove that [¶]
[1.] The defendant did an act that by its nature would directly
and probably result in the application of force to a person, and
[¶] . . . The force used was likely to produce great bodily injury;
[¶] [2.] The defendant did that act willfully; [¶] [3.] When the

22
No. 875; People v. Chhoun (2021) 11 Cal.5th 1, 30 [courts
presume juries follow the instructions].) Thus, even if
defendant’s initial grabbing of the knife was reasonable, his
subsequent act, which the jury found constituted an act that
would directly and probably result in force that was likely to
produce great bodily injury to Gonzalez, was not. Even assuming
that defendant reasonably considered Maza and Gonzalez to be
part of the same group, such that he associated Maza’s threat
with Gonzalez (People v. Minifie (1996) 13 Cal.4th 1055, 1065–
1066), no jury could have concluded that defendant’s assault with
a deadly weapon was objectively reasonable under the
circumstances here. (See People v. Pinholster (1992) 1 Cal.4th
865, 966, disapproved on other grounds in People v. Williams
(2010) 49 Cal.4th 405, 459 [“The right of self-defense did not
provide defendant with any justification or excuse for using
deadly force to repel a nonlethal attack”]; People v. Enriquez
(1977) 19 Cal.3d 221, 228, disapproved on other grounds in
People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [assault with
fists does not justify use of deadly weapon in self-defense]; see
also People v. Jones (1961) 191 Cal.App.2d 478, 482 [“A

defendant acted, he was aware of the facts that would lead a
reasonable person to realize that his act by its nature would
directly and probably result in the application of force to
someone; [¶] . . . AND . . . [¶] [4.] When the defendant acted, he
had the present ability to apply force with a deadly weapon to a
person; [¶] . . . AND [¶] 5. The defendant did not act in self-
defense . . . . [¶] . . . [¶] A deadly weapon is any object,
instrument, or weapon . . . that is used in such a way that it is
capable of causing and likely to cause death or great bodily
injury.” Defendant does not dispute the correctness of the
instruction on assault with a deadly weapon.

23
misdemeanor assault must be suffered without the privilege of
retaliating with deadly force”].) Accordingly, we find the error
harmless beyond a reasonable doubt.

2. CALCRIM No. 3471

Defendant next contends that the trial court erred in
delivering CALCRIM No. 3471, the right to self-defense by a
mutual combatant or an initial aggressor.16 According to
defendant, there was no substantial evidence to support the
delivery of the instruction in connection with the assault with a
deadly weapon counts because the evidence demonstrated that, if
the jury believed Gonzalez, defendant did not act in self-defense
and if it believed defendant, he was not the initial aggressor.
And, defendant asserts that as to Herrera, there was no evidence
that defendant defended himself against Herrera after being the

16 As relevant here, the court instructed the jury: “A person
who engages in mutual combat has a right to self-defense only if:
[¶] 1. He actually and in good faith tries to stop fighting; [¶]
2. He indicates, by word or by conduct, to his opponent, in a way
that a reasonable person would understand, that he wants to stop
fighting and that he has stopped fighting; [¶] AND [¶] 3. He
gives his opponent a chance to stop fighting. [¶] A person who
starts a fight has a right to self-defense only if: [¶] 4. He actually
and in good faith tries to stop fighting; [¶] AND [¶] 5. He
indicates, by word or by conduct, to his opponent, in a way that a
reasonable person would understand, that he wants to stop
fighting and that he has stopped fighting. [¶] . . . [¶] If a person
meets these requirements, he then had a right to self-defense if
the opponent continued to fight. [¶] A fight is mutual combat
when it began or continued by mutual consent or agreement.
That agreement may be expressly stated or implied and must
occur before the claim to self-defense arose.”

24
initial aggressor or agreeing to fight him. (See People v. Marshall
(1997) 15 Cal.4th 1, 39 [“A trial court must give a requested
instruction only if it is supported by substantial evidence, that is,
evidence sufficient to deserve jury consideration”].)
We find there was substantial evidence to support the
instruction. According to both Gonzalez and Herrera, defendant
acted as the initial aggressor in his interactions with them.
Moreover, defendant makes no effort to explain how he was
prejudiced by the court’s delivery of CALCRIM No. 3471 with
respect to the assault with a deadly weapon counts. Accordingly,
any error was harmless. (See People v. Debose (2014) 59 Cal.4th
177, 205–206 [error of instruction on inapplicable legal theory
reviewed under Watson reasonable probability standard].)

C. Testimony Concerning Defendant’s Domestic Violence

Defendant next argues that the trial court prejudicially
erred by allowing the prosecution to elicit Figueroa’s testimony
that she told Maza and Gonzalez about defendant’s domestic
violence toward Rivera. Prior to trial, defendant moved to
exclude any mention of his alleged prior domestic violence
against Rivera. Citing Evidence Code section 1250, the court
ruled that Figueroa could discuss her statements to Maza and
Gonzalez regarding defendant’s prior violence against Rivera.
We review the trial court’s rulings regarding the admissibility of
the evidence for an abuse of discretion. (People v. Mataele (2022)
13 Cal.5th 372, 413–414.)
Defendant argues, and the Attorney General concedes, that
Evidence Code section 1250 did not render Figueroa’s testimony
admissible as an exception to the hearsay rule. Nonetheless,

25
“‘“we review the ruling, not the court’s reasoning and, if the
ruling was correct on any ground, we affirm.”’” (People v. Brooks
(2017) 3 Cal.5th 1, 39.)
Figueroa’s statement was admissible, not for the truth of
the matter asserted, but to explain why Maza and Gonzalez, who
heard the statements, behaved in a particular manner. “[A]n
out-of-court statement can be admitted for the nonhearsay
purpose of showing that it imparted certain information to the
hearer, and that the hearer, believing such information to be
true, acted in conformity with such belief.” (People v. Montes
(2014) 58 Cal.4th 809, 863 (Montes); People v. Rosson (1962) 202
Cal.App.2d 480, 486; see 1 Witkin, Cal. Evidence (5th ed. 2022)
Hearsay, §§ 41, 46.) Here, neither Maza nor Gonzalez had met
defendant prior to April 2. And, the prosecution argued that
because of Figueroa’s statements to them, Maza and Gonzalez
attempted to restrain defendant when they saw him at the home.
Further, the reasonableness of Maza and Gonzalez’s conduct was
relevant to the issue of whether defendant acted in self-defense
when he assaulted Gonzalez and stabbed Maza. Thus, Figueroa’s
out-of-court statement was relevant and admissible. (Montes,
supra, 58 Cal.4th at p. 864.). We find no abuse of discretion.

D. Failure to Instruct on English Translation of Witness
Testimony

Defendant next argues that the trial court erred by failing
to instruct the jury with CALCRIM No. 121, which states in
pertinent part: “Some testimony may be given in [a language
other than English]. An interpreter will provide a translation for
you at the time that the testimony is given. You must rely on the

26
translation provided by the interpreter, even if you understand
the language spoken by the witness.” As noted, several witnesses
testified in Spanish.
As defendant concedes, no decisional authority requires a
trial court to sua sponte deliver CALCRIM No. 121. And, even if
we were to find that a court, under certain circumstances, was
obligated to deliver CALCRIM No. 121—and we make no such
finding here—defendant has failed to demonstrate how he was
prejudiced by the absence of the instruction. (People v. O’Malley
(2016) 62 Cal.4th 944, 991 [“‘The relevant inquiry [when
instructional error is claimed] is whether, “in the context of the
instructions as a whole and the trial record, there is a reasonable
likelihood that the jury was misled to defendant’s prejudice”’”].)
Here, there is no indication that the interpreters made any
material errors in interpreting the original Spanish testimony
into English, and we do not presume any such error. (See Evid.
Code, § 664 [“It is presumed that official duty has been regularly
performed”].) Nor can defendant establish that any potential
differences between the original Spanish and interpreted
testimony affected the jury’s verdict. Thus, any assumed error is
harmless. (See People v. Larsen (2012) 205 Cal.App.4th 810, 830
[failure to give pinpoint instruction reviewed under Watson
harmless error standard].)17

17 Defendant also argues there was cumulative error
requiring reversal as to counts 1 through 3. “Under the
‘cumulative error’ doctrine, ‘a series of trial errors, though
independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error.’ (People
v. Hill (1998) 17 Cal.4th 800, 844.) ‘The “litmus test” for
cumulative error “is whether defendant received due process and
a fair trial.”’ (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)”

27
E. Resentencing on Count 2

Defendant contends that the cause must be remanded for
resentencing on count 2 due to recent statutory amendments to
section 1170, subdivision (b)(6). The Attorney General agrees, as
do we. In any event, because we are reversing as to count 1, the
trial court will be given the opportunity to fully resentence
defendant. (People v. Buycks (2018) 5 Cal.5th 857, 893; People v.
Navarro (2007) 40 Cal.4th 668, 681.)

(People v. Thomas (2021) 64 Cal.App.5th 924, 971.) Having
reviewed the entire record, we conclude there is no reasonable
possibility that the trial court’s assumed errors prejudiced
defendant with respect to his convictions for counts 2 and 3.
(People v. Peoples (2016) 62 Cal.4th 718, 805.)

28
 IV. DISPOSITION

The judgment is reversed as to defendant’s second degree
murder conviction on count 1. The case is remanded to the trial
court with directions to (1) retry defendant, if the People so elect,
on second degree murder; and (2) resentence defendant in a
manner consistent with this opinion. Thereafter, the court is
directed to file an amended and corrected abstract of judgment
and transmit it to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

I concur:

RUBIN, P. J.

29
The People v. Edson Eduardo Rufino
B317048

BAKER, J., Dissenting

The majority opinion, which reverses defendant and
appellant Edson Rufino’s (defendant’s) murder conviction, is an
outlier. The majority concludes—solely on the direct appeal
record—that defendant’s trial attorney was constitutionally
ineffective for not objecting to the prosecution’s closing argument.
Such a conclusion is rarely drawn. (People v. Salcido (2008) 44
Cal.4th 93, 172 [“‘except in those rare instances where there is no
conceivable tactical purpose for counsel’s actions,’ claims of
ineffective assistance of counsel generally must be raised in a
petition for writ of habeas corpus based on matters outside the
record on appeal”]; see also People v. Hillhouse (2002) 27 Cal.4th
469, 502 [“deciding whether to object is inherently tactical, and
the failure to object will rarely establish ineffective assistance”].)
I cannot join such an opinion, which may well carry with it
professional consequences for the trial lawyers on both sides—
even though the majority never mentions it. (Bus. & Prof. Code,
§ 6086.7, subd. (a)(2) [a court must notify the State Bar
“[w]henever a modification or reversal of a judgment in a judicial
proceeding is based in whole or in part on the misconduct,
incompetent representation, or willful misrepresentation of an
attorney”].)
 In my view, there is no basis to conclude defendant’s trial
attorney provided ineffective assistance of counsel on this record.
The red lines in this area of the law are very fine, compelling a
prosecutor to address how an average person would react (with
judgment obscured by passion) but not permitting comment on
how an average person would react that incorporates the
particular facts of the case being tried (i.e., arguing an average
person would not kill under the circumstances). Because of these
fine distinctions, the prosecution did at least arguably misstate
the law in one aspect of its summation when it told the jury: “It’s
whether a person of average disposition in the same situation
knowing the same facts would have reacted the same way and
killed” and “It’s would a reasonable person have heat of passion
and react and kill.”1 But the defense thereafter explained—in
detail—that this was not the law and the jury did not have to
conclude “you would have done what [defendant] did.” The
prosecution, in rebuttal, then argued “Reasonable person gets
mad and stabs? Nope. Don’t get that one either. When you stab
somebody because you’re mad and you stab them in the chest,
that’s your malice.” I see no clear misstatement of law in those
short four sentences during rebuttal,2 and the majority never

1
Other elements of the prosecution’s argument on the same
point, however, were unobjectionable. The prosecutor’s
statement that “[defendant] can’t set up his own standard of
conduct,” for instance, was drawn straight from the CALCRIM-
approved jury instruction.
2
It is certainly permissible to argue that when you stab
somebody in the chest because you’re mad, that’s “your malice.”
So that leaves the prosecution’s comment “Reasonable person
gets mad and stabs? Nope. Don’t get that one either.”

2
explains why they are problematic—despite resting on those four
sentences the entirety of its argument that the failure to object
was supposedly inexplicable.
I accordingly believe there could be good reasons why
defense counsel did not object to the prosecution’s argument.
Chief among them, the defense may have believed distinguishing
permissible argument from impermissible argument in this area
of the law is tricky and decided not to risk an overruled objection
when its own closing argument (plus the instruction given to the
jury) correctly stated the law and the prosecution’s short
response did not undermine the defense argument. I do not rule
out the possibility that a more developed record might establish
the absence of an objection arose from deficient performance, but
there is no ineffective assistance of counsel requiring reversal
looking at what we now have before us.
The remainder of defendant’s claims of instructional error
concerning homicide and self-defense are, in my view,
unmeritorious. I agree with the majority’s disposition of

Particularly in context of the permissible sentence I have just
mentioned, we do not have to understand this comment as a
misstatement of the objective provocation inquiry. It can instead
be understood as an argument that defendant stabbed the victim
because he was mad and that is evidence of malice, not
provocation. And if such an understanding is possible, we should
credit it. (People v. Ramirez (2022) 13 Cal.5th 997, 1129 [“‘we “do
not lightly infer” that the jury drew the most damaging rather
than the least damaging meaning from the prosecutor’s
statements’”].)

3
defendant’s other contentions of error. So I would affirm
defendant’s convictions and remand solely for resentencing.

BAKER, J.

4