People v. Hernandez CA5

Filed 6/17/21 P. v. Hernandez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F077991
Plaintiff and Respondent,
(Super. Ct. No. BF171912A)
v.

PATRICIO HERNANDEZ, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Jacquelyn Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Tracy Yao, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
 INTRODUCTION
Defendant Patricio Hernandez stands convicted of elder abuse (Pen. Code, § 368,
subd. (b)(1); count 1);1 assault likely to produce great bodily injury (GBI) (§ 245,
subd. (a)(4); count 2); and battery resulting in serious bodily injury to the victim (§ 243,
subd. (d)). The jury also found true enhancement allegations as to counts 1 and 2 that
defendant personally caused the victim GBI pursuant to section 12022.7, subdivision (a)
(section 12022.7(a) or § 12022.7(a)). In a bifurcated proceeding, the court found true
defendant had suffered a prior prison term within the meaning of section 667.5,
subdivision (b) (section 667.5(b) or § 667.5(b)).
Defendant was sentenced to the upper term (four years) for elder abuse (§ 368,
subd. (b)(1)), three years for the GBI enhancement under section 12022.7(a), and one
year for the prior prison term enhancement under section 667.5(b). On count 2, the court
imposed the upper term of four years, with a three-year term for the GBI enhancement.
On count 3, the court imposed the upper term of four years. The court stayed execution
of the sentences imposed on counts 2 and 3 pursuant to section 654.
For the reasons stated below, the prior prison term enhancement under
section 667.5(b) is stricken pursuant to Senate Bill No. 136 (2019–2020 Reg. Sess.)
(Senate Bill No. 136 or Sen. Bill No. 136). We order a limited remand so defendant may
develop a record, pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas),
regarding his ability to pay the fines and fees assessed by the trial court. In all other
respects, the judgment is affirmed.
FACTUAL SUMMARY
On the evening of April 10, 2018, Maria C. received a call from her sister’s son,
defendant, who told her that he had just “beat the fuck” out of Maria’s brother, David,
who was living with defendant’s mother, Ophelia. Maria went to Ophelia’s house to

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

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check on David. When she arrived, defendant was standing in the driveway, Ophelia was
there, and David was in his bedroom. When Maria saw David in his bedroom, she
noticed his injuries—both eyes were closed shut, he had a broken lip, and blood was
coming out of his mouth. His shirt was dirty with blood and mud. Maria called 911 from
the driveway; Ophelia was sitting in a lawn chair looking distraught.
Maria told the 911 dispatcher defendant was still at the scene, although defendant
had instructed her to say he was not there. Defendant told Maria that David had been
insulting and nasty, would not leave defendant alone, and said defendant’s kids were
lowlifes and drug addicts. Maria testified David regularly drank—when David had lived
with her in the past, he would drink almost every day. She testified he was a belligerent
drunk who likes to fight. When intoxicated, she had seen David fall and sustain injuries.
Officer Moore was dispatched to Ophelia’s house, where he found David unable
to move his jaw and making a moaning sound when talking. Defendant was not at the
scene. In a five-minute interview, David told Moore defendant had struck him in the face
with a closed fist three or four times; David fell to the ground and defendant kicked him
about six times in the head. While David was in the ambulance, Moore saw him vomit
blood.
David was taken to the hospital in an ambulance. At the hospital it was
determined David had suffered a cheekbone fracture, a brain bleed, and a procedure was
done to alleviate the pressure behind one of his eyes. A treating physician testified
David’s injuries were consistent with blunt force trauma, and the cheekbone fracture
would have been caused by some kind of high force. David denied any loss of
consciousness and he denied any alcohol use. Patient records indicated David reported
daily drinking.
David testified he had tried to retrieve his saw from the storage trailer on the
morning of April 10, 2018, which he could not locate. He asked defendant and Ophelia if
either of them had seen it—neither of them could locate the saw. David then went back

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to his bedroom. Later in the afternoon, after he had about three beers, he went back
outside and confronted defendant about the saw. At that point, defendant hit him. David
had not tried to hit him first. Defendant was hit twice in the ribs, and defendant kicked
his head. Defendant sprayed him with the hose, and David began slipping and sliding on
the grass. Defendant took the phone away from David, and then continued hitting and
kicking him in the same places. David could not recall if he ever got back up. Later he
heard Maria talking to him; he was unaware of what Maria did or whether defendant left
the scene. The police came, but he did not remember speaking to officers. He was taken
to the hospital, where his injuries were treated.
While David was transported to the hospital, Officer Moore stayed at Ophelia’s
house to interview witnesses. Maria told him that when she arrived at the house, David
had been lying on his back in the rear yard and defendant had sprayed him with a hose.
She said defendant told her he beat the “shit” out of her brother.
Moore was able to speak to David again at the hospital; David told Moore he had
been arguing with defendant, David had slipped to the ground and defendant had kicked
him in the face five or six times. When defendant was arrested, he told Moore and
Officer Barrier that there were other witnesses who saw what happened—neighbors of
Ophelia—but the officers were unable to contact them; they made a single attempt to
contact these witnesses around 5:00 a.m. the morning after they arrested defendant.
Ophelia testified for the defense. On the day of the incident, she testified both
David and defendant were living with her. She saw David drink daily while he lived with
her, and she has seen him fall twice in the past when drunk, but he was not injured on
either occasion. On the morning of the incident, David was looking for a saw, and
around 10:00 a.m. she and defendant started looking for it on the property. She thought
David started drinking around 11:00 a.m. The search lasted until about 5:45 p.m., when
Ophelia left—they never found the saw. Defendant was in the backyard when she left
and David, who was then uninjured, was in his room.

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 Ophelia returned to the house around 9:00 p.m., and found defendant outside the
gate with one of the neighbors; she went into the house and saw David, who appeared
injured. Ophelia saw blood in the bathtub, and some blood smeared on the fridge, which
had not been there when she left. Some flower pots in the back of the house were
knocked over. After the incident, David went to live with another sister and Ophelia had
not spoken to either of them since then. The situation had caused a family divide.
Defendant testified he had seen David drinking frequently while they were all
living at Ophelia’s house, and had seen him fall as a result of intoxication both inside and
outside the house on other occasions, but he had never injured himself before. On the
morning of the incident, David confronted defendant about a missing saw—David had an
attitude and appeared angry. When defendant told David he had not seen the saw, David
walked away. Defendant and Ophelia looked for the saw in the trailer shed, which they
emptied out completely, but they never found the saw. The search ended around
3:00 p.m. David never came out to help them look for it; instead, he would come out of
the house intermittently with a beer can in his hand.
After Ophelia left, David came out of the house and confronted defendant again
about the saw. His tone was aggravated and he appeared angry; he began yelling and
took a swing at defendant, which did not make contact. Defendant then hit David in the
face; David fell, stood up, took another swing at defendant, and defendant hit him a
second time in the face. David stumbled and hit the front of his head on the patio. David
then followed defendant to a peach tree, where David fell face forward into the tree.
David next fell backwards onto a flower pot, and then hit a truck with his head and his
face. During this time, defendant described David falling and getting back up numerous
times. At some point, defendant sprayed David with a hose to try to “sober him up.”
David told defendant he wanted to take a shower, but defendant kept telling him to
sit down. He helped David to the rail of the steps in the backyard, then defendant went to
the front of the yard. However, David tripped on the steps, fell, and hit his head again.

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Defendant helped David to the bathroom, turned on the water for him, and closed the
door and walked away. Defendant tried to call Ophelia, but he could not reach her; then
he called Maria. He denied telling Maria he beat the “fuck” out of David. He told Maria
that David was all over the place drunk again. The neighbor was with defendant while all
of this happened; one of the neighbors arrived when the altercation started in the
backyard—she got there right before David tripped into the peach tree. She too was
trying to get David to sit down.
Defendant denied ever kicking David or stomping on him while he was on the
ground. He did not remember telling Maria not to tell the 911 dispatcher the person who
did this was nearby. His voice on the 911 recording can be heard saying, “‘No, and tell
them no.’” He explained he was responding to questions Maria had asked before—he
was not prompting her to respond to the dispatcher’s question whether the perpetrator
was still nearby. He thought perhaps they were asking whether the victim was nearby.
He denied he told officers he was not present for the 911 call.
Defendant left the scene before police arrived because he had a misdemeanor
warrant, and he did not feel like going to jail with no money. Defendant admitted having
steel-toed boots on, but testified they no longer had much steel in them—it had come out
over time and with repeated washing, although there were probably some pieces still in
them. Defendant testified that while David was intoxicated when he confronted
defendant, David was still capable of causing injuries. He admitted he told officers
David’s falling in the yard was almost comical, but that it had become serious when
David hit himself really hard. He denied remembering he told the officers he had not
called 911 for David because David was being a “prick.” Defendant was extensively
cross-examined about his prior offenses, which included domestic violence convictions.
The prosecution called Officer Barrier as a rebuttal witness. He testified about
what defendant told officers when he was interviewed upon arrest. In defendant’s initial
version of what happened, David was intoxicated and falling down every few steps. But

6.
as they questioned him about the age and capabilities of David and why defendant would
punch a man who was so inebriated, defendant changed his story to say the victim was
like a 30-year-old, strong, capable military man.
As for the shoes he was wearing during the altercation, defendant first said they
were steel-toed boots, but later he called them shoes and explained some of the steel had
come out of them; still later he said there was no steel in the shoes at all. Defendant
described the scene in the backyard at Ophelia’s house as covered with blood. He first
described his initial punch of David as a “good one,” but later said he did not hit David so
hard. Defendant talked about the neighbors, but changed his story about how close his
relationship was with them.
Barrier testified he and Moore attempted to contact these neighbors, but were
unable to do so. Defendant told them his shoes were in the laundry room of Ophelia’s
house, but the officers were unable to get into the residence to get them. Barrier
conceded they had not contacted Ophelia to obtain the boots, but had called David’s other
sister, Lucy, with whom he was staying after the altercation.
The jury returned a verdict of guilty on all counts, and they found true two special
allegations that defendant had caused the victim GBI under section 12022.7(a). During a
bifurcated proceeding, the court determined defendant had suffered a prior prison term
within the meaning of section 667.5(b). Defendant was sentenced to the upper term of
four years for elder abuse under section 368, subdivision (b)(1), three years for the GBI
enhancement under section 12022.7(a), and one year for the prior prison term under
section 667.5(b).
DISCUSSION
I. Miranda Claim
Defendant argues he was subjected to unwarned interrogation at the time of his
arrest in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). According to
defendant, when a Miranda warning was provided, it was administered mid-

7.
interrogation—deliberately timed to render the warning ineffective as prohibited under
Missouri v. Seibert (2004) 542 U.S. 600, 604, 617 (plur. opn. of Souter, J.) (Seibert). For
these reasons, defendant maintains the trial court erred in ruling admissible any of the
pre- or postwarning interrogation statements.
The People contend neither the officer’s statement at the time of arrest nor any
direct questions posed to defendant prior to a Miranda warning constituted interrogation
or the functional equivalent. Assuming there was any error in admitting the prewarning
statements, the People argue it was harmless. The People maintain defendant’s assertion
under Seibert as to the admissibility of the postwarning statements was forfeited.
A. Background
Defendant filed a motion in limine to exclude his statements to police under
Miranda, and Officers Moore and Barrier testified at a pretrial suppression hearing.
Officers Moore and Barrier arrested defendant at his son’s home the day after the
incident; Barrier took defendant into custody inside the home, placed him in handcuffs,
and Moore and Barrier walked defendant out to the patrol car. Moore testified defendant
was asking why he was arrested and what was going on. Defendant was placed into the
back of the patrol car and was advised the victim was in the hospital and badly injured.
Moore then started his recorder almost immediately after defendant was placed in the
vehicle. A Miranda warning was given about 13 minutes after the recording started.
Barrier testified when they took defendant into custody, they told him they were
arresting him for elder abuse—Barrier was unsure whether defendant had asked why he
was being arrested; defendant then began “rambling” about the incident with David. He
told them about David’s drinking habits, how violent he is, that David was former
military and tried to assault defendant, but ended up falling multiple times and hitting his
head repeatedly. It took approximately one minute to handcuff defendant and walk him
back to the car, and Barrier could not say exactly when defendant made these statements
between the house and the patrol car. The only questions the officers asked at this point

8.
were clarifying questions about the information defendant was giving them. Barrier
testified he may have asked about who Audrey T. was or what portion of the house
defendant wanted him to look at, but Barrier did not specify whether these were questions
during the recorded portion of the interview or in the unrecorded minutes before they
reached the patrol car. Barrier testified he felt defendant was offering spontaneous and
voluntary statements about the investigation—Barrier did not want to interrupt defendant
with a Miranda warning while he was volunteering pertinent and unsolicited information.
After Barrier’s initial unrecorded statement to defendant that the victim was badly
injured, the recorder was turned on in the car and there were explicit questions asked by
Barrier. Barrier testified the conversation just prior to the audio recording involved
defendant’s statement that the victim was not in the hospital anymore. Barrier restated
this information in the form of a question, “He’s not in the hospital no more?” Barrier
then asked, “How do you know that?” (Boldface added.) Defendant responded that he
had called and talked to his family. Barrier responded, “Oh.”
Defendant then started a discussion about what had happened:

“[DEFENDANT]: Only reason I didn’t stay right there cause my
neighbor came out there and got me away its cause he was polluted and
drunk and he came at me. He called my son a crack head and he swung at
me, and I hit him once, I actually hit him twice. But he kept falling down
all over the yard he couldn’t even stand up he was so polluted (fluid?). He
was beating himself up, he knocked over my mom’s flower vase case and
everything, I didn’t do all that to him [Unintelligible] I didn’t even have to
walk away to leave him there…the neighbors told me to stay over there
[Unintelligible] but I just didn’t want to stay cause I had a warrant.
“[BARRIER]: Ok so you’re saying there’s people that saw it?

“[DEFENDANT]: Yeah, my neighbors. I went over there. I stayed
over there. I didn’t stay with that guy… [⁋] …[⁋] … Ya I just hit him twice
and that was self-defense when he hit me. He missed. He kept just falling
and falling and falling. And my mom knows it. I’m sure they’ll come to
court and vouch for that [Unintelligible]. All the sisters were there. I was
talking to them. [Unintelligible] I went to my neighbors to stay away from
this guy. He would not stop and get off of me he just got so drunk.

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 “[BARRIER]: What neighbor should we go talk to, to get your side
of this?

“[DEFENDANT]: Audrey [T.].

“[BARRIER]: Ok.

“[DEFENDANT]: Yeah, I went over there. I stayed over there.
And them, um, [t]hen I went and waited for my mom to come back.…”
(Boldface added.)
During the drive to the police station, defendant and Barrier also had the following
conversation:

“[BARRIER]: Your son looks a lot like you just a little bit taller
huh?

“[DEFENDANT]: Ya he’s way bigger like 6’4. 6’5.

“[BARRIER]: Yeah. He’s a big ol’ boy.

“[Cross Talk] [Unintelligible]

“[DEFENDANT]: This guy, [h]e’s known to get drunk and fall
down like that …

“[Unintelligible]

“[BARRIER]: Who’s that?

“[DEFENDANT]: My uncle. Crashes his motorcycle.
[Unintelligible] He’s … an alcoholic. He drinks like that every day. And
he gets a smart mouth on him all this time I’ve been dealing with it and the
only reason I stayed there is because I have that class [Unintelligible]. But
he was falling down [Unintelligible]. I was just trying to help him up.
[Unintelligible]. Hit his face here. [Unintelligible] He’s already home.
My brother was there. [Unintelligible]

“[BARRIER]: Your brother called you?

“[DEFENDANT]: Yeah.

“[BARRIER]: Ok.”

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 The police vehicle stopped at the police station at this point in the recording.
Defendant was taken inside the station where he was given a Miranda warning. He
indicated he understood his rights, and said he was willing to talk with the officers.
Defendant was then questioned extensively for approximately 45 minutes.
The court ruled the prewarning questions officers asked defendant at the time of
his arrest were minor, clarifying questions that were not designed to elicit incriminating
responses.
B. Standard of Review
“In reviewing the trial court’s ruling on a claimed Miranda violation, ‘“we accept
the trial court’s resolution of disputed facts and inferences, and its evaluations of
credibility, if supported by substantial evidence. We independently determine from
[those facts] whether the challenged statement was illegally obtained.”’” (People v.
Elizalde (2015) 61 Cal.4th 523, 530.) Further, “[we] apply federal standards in reviewing
defendant’s claim that the challenged statements were elicited from him in violation of
Miranda.” (People v. Bradford (1997) 14 Cal.4th 1005, 1033.)

C. No Interrogation or Functional Equivalent Before Miranda Warning
The rule of Miranda requires that before police may question a suspect during a
custodial interrogation, the suspect must be advised of the right to remain silent and to an
attorney and that any statements may be used against him or her in court. (Miranda,
supra, 384 U.S. at p. 479; Rhode Island v. Innis (1980) 446 U.S. 291, 297 (Innis).)
The defendant in Innis was arrested for robbery with a sawed-off shotgun; when
arrested, however, defendant was unarmed. While transporting the defendant to the
police station, two officers conversed among themselves about the missing gun. One
officer said to the other that “‘there’s a lot of handicapped children running around this
area, and God forbid one of them might find a weapon with shells and they might hurt
themselves.’” (Innis, supra, 446 U.S. at pp. 294–295.) The defendant interrupted and
told them he would take them to the gun, which was recovered. The court concluded this

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was nothing more than a dialogue between two officers, no response was invited, it was
not a lengthy harangue of the defendant nor particularly evocative, and there was no
evidence the officers were aware the defendant was peculiarly susceptible to an appeal to
his conscience concerning the safety of handicapped children—it was not interrogation.
(Id. at pp. 302–303)
In reaching this conclusion, the high court “defined the term ‘interrogation,’
stating that ‘the Miranda safeguards come into play whenever a person in custody is
subjected to either express questioning or its functional equivalent. That is to say, the
term “interrogation” under Miranda refers not only to express questioning, but also to
any words or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect. The latter portion of this definition focuses
primarily upon the perceptions of the suspect, rather than the intent of the police. This
focus reflects the fact that the Miranda safeguards were designed to vest a suspect in
custody with an added measure of protection against coercive police practices, without
regard to objective proof of the underlying intent of the police. A practice that the police
should know is reasonably likely to evoke an incriminating response from a suspect thus
amounts to interrogation. But, since the police surely cannot be held accountable for the
unforeseeable results of their words or actions, the definition of interrogation can extend
only to words or actions on the part of police officers that they should have known were
reasonably likely to elicit an incriminating response.’ (Innis, [supra,] 446 U.S. at
pp. 300–302, fns. omitted.)” (People v. Haley (2004) 34 Cal.4th 283, 300 (Haley).)
1. Officer’s Statement About the Victim’s Status
Officer Moore testified that as soon as defendant was handcuffed, he asked why he
was being arrested; when they informed defendant of the basis for his arrest, they told
him David was in the hospital and “injured pretty bad,” and defendant started giving an
explanation about what happened. Defendant argues his explanation to officers was

12.
provoked by their statements about the reason for his arrest and that David was badly
injured—the statement was an accusation the officers reasonably should have known was
likely to elicit an incriminating response. According to defendant, although not a direct
question, this was the functional equivalent of interrogation.
Under Innis, not all conversation between an officer and a suspect constitutes
interrogation. (Innis, supra, 446 U.S. at pp. 301–302.) The police may speak to a
suspect in custody as long as the speech would not reasonably be construed as calling for
an incriminating response. (Id. at p. 301.) While context will make all the difference,
generally police statements to suspects that are customarily attendant to arrest and
custody—such as the basis for the arrest or a statement about the evidence against the
suspect—are not the functional equivalent of interrogation.2
For example, in Haley, the defendant was interviewed at the police station about a
victim’s (Clement) murder, but he denied any involvement. (Haley, supra, 34 Cal.4th at
p. 296.) A few days later, fingerprints obtained at Clement’s residence were matched to
the defendant and he was arrested. (Ibid.) The defendant was placed in a patrol car and
advised he was under arrest for Clement’s murder; a detective then told the defendant
they knew he had committed the murder because his fingerprints were found at the crime
scene. The defendant replied, “‘You’re right. I did it.’” (Ibid., fn. omitted.)
On appeal, the defendant argued his statement in the patrol car was obtained in
violation of Miranda because the detective’s statement that he knew the defendant
committed the murder because of the fingerprint at the crime scene constituted
interrogation as it was reasonably likely to elicit an incriminating response. (Haley,
supra, 34 Cal.4th at p. 300.) The court rejected this argument because the detective’s
statement was not phrased as a question, and it did not call for an incriminating response.

2 See United States v. Payne (4th Cir. 1992) 954 F.2d 199, 203 (“whether descriptions of
incriminating evidence constitute the functional equivalent of interrogation will depend on
circumstances that are too numerous to catalogue”) (Payne).

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The court concluded “[a] brief statement informing an in-custody defendant about the
evidence that is against him is not the functional equivalent of interrogation because it is
not the type of statement likely to elicit an incriminating response.” (Id. at p. 302.)
Similarly, in People v. Huggins (2006) 38 Cal.4th 175 (Huggins), the defendant
was in a police interview room after being taken into custody. (Id. at p. 197.) Two
officers were plugging in a tape recorder to begin the formal interview and told the
defendant he was a suspect in the murder they were investigating. (Ibid.) The defendant
then spontaneously admitted escaping from California Youth Authority work detail, but
denied contact with the victim; he requested a lawyer and the formal interview never
occurred. (Ibid.) On appeal, the defendant argued this spontaneous statement was
admitted in violation of Miranda. The court rejected the argument, concluding that
telling the defendant he was a murder suspect did not call on him to confess—and he did
not—he denied any involvement in the victim’s death. (Huggins, supra, at p. 199; see
Payne, supra, 954 F.2d at pp. 202–203 [information given to a suspect about charges or
evidence does not necessarily constitute interrogation—that information could contribute
to the intelligent exercise of judgment when considering what course of conduct to
follow—it was not reasonably designed to elicit an incriminating response]; Easley v.
Frey (7th Cir. 2006) 433 F.3d 969, 971, 973–974 [after suspect invoked his rights, officer
gave information about the evidence against him and that if convicted, he could face the
death penalty—held not to be interrogation].)
But when an officer’s discussion of the charges or evidence against a suspect
amounts to “compelling influences, psychological ploys, or direct questioning” (Arizona
v. Mauro (1987) 481 U.S. 520, 529), it will likely constitute interrogation. Thus, in
People v. Sims (1993) 5 Cal.4th 405 (Sims), the court concluded an officer’s discussion of
the evidence against the defendant after he invoked his rights was interrogation. (Id. at
p. 441.) Specifically, the suspect invoked his rights at the outset of a police interview,
and the interviewing officers got up to leave; the defendant then asked what would

14.
happen next, referring to extradition. (Id. at pp. 437–438.) An officer explained
extradition proceedings would begin, and then gratuitously added he was present at the
motel room where the murder victim was found and had reason to believe the defendant
had occupied that room prior to the killing. The officer went on to tell the defendant the
murder victim had delivered a pizza to that room. The defendant responded he “‘had to
kill that boy.’” (Id. at p. 438.) The officer then described the crime scene, the condition
of the victim, and noted the victim did not have to die in that manner and could have been
left there alive. The defendant responded the victim would have identified him, among
several other comments. On appeal, our high court held the officer’s statements could
not have been understood as simply informing the defendant of the charges against him
or the next step in the extradition proceedings—it was interrogation that violated
defendant’s invoked Miranda rights. The reply to the defendant’s question was
nonresponsive and served no legitimate purpose incident to the defendant’s arrest or
custody. Rather, it amounted to the application of a “‘technique of persuasion’” that was
likely to induce the defendant to defend, and thus incriminate, himself. (Sims, supra, at
pp. 443–444.)
In People v. Davis (2005) 36 Cal.4th 510 (Davis), the defendant was taken to a
police station and advised of his rights, which he refused to waive. (Id. at p. 552.) He
was then placed in a holding cell next to codefendants while police recorded their
conversation. (Ibid.) While recording, a detective entered the cell area and looked
directly at the defendant and asked him if he remembered the gun, to which the defendant
responded, “‘Yeah.’” (Id. at p. 553.) The detective then said, “‘Think about that little
fingerprint on it we’ll see ya .…’” (Ibid.) Although ultimately concluding admission of
the defendant’s acknowledgment he “‘remember[ed]’” the gun was harmless, the court
nonetheless held the detective’s question constituted interrogation because, not only was
it a direct question, it called for an incriminating response because it would imply the
defendant knew the gun was used in the murder. (Id. at p. 555.)

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 The context here is similar to Huggins and Haley and distinguishable from Sims
and Davis. Unlike here, in Davis and Sims, the officers’ statements were made well after
arrest—the suspect in each case had already been read their rights, had invoked, and were
in a holding cell and an interview room, respectively. The officer’s statement in Sims
was not responsive to the question the defendant asked and gratuitously delved into the
facts of the case for no reason other than as a ploy to draw the defendant into making an
incriminating statement. The officer’s statement in Davis was a direct question that was
clearly meant to elicit an incriminating response following the defendant’s invocation—
which it did.
Barrier’s statement about the victim being badly injured was made at the time of
arrest while explaining the charges against defendant. And, even though defendant
argues the statement was accusatory, any accusation was mild at most and did not
approach the type of accusation the detective in Haley made by telling the defendant they
knew he was the murderer because they found his fingerprints at the murder scene. As
noted in Payne, rather than calling for an incriminating response, information relayed to
suspects about the basis for their arrest or the evidence against them at the time of arrest
may actually assist suspects in the exercise of judgment and selecting a course of conduct
about what to say. (Payne, supra, 954 F.2d at p. 202.) Such information is just as likely
to evoke a denial, like in Huggins, as a confession or inculpatory statement. Under the
circumstances here, informing defendant at the time of arrest the victim was badly injured
did not amount to an accusatory ploy constituting the functional equivalent of
interrogation.
2. Officer’s Direct Prewarning Questions Not Interrogation
The direct questions Barrier asked defendant prior to the Miranda advisement did
not constitute interrogation either. The trial court found these questions were merely
clarifying questions asked after defendant volunteered unsolicited statements about the
incident. We agree.

16.
 “Just as custodial interrogation can occur in the absence of express questioning
[citation], not all questioning of a person in custody constitutes interrogation under
Miranda.” (People v. Ray (1996) 13 Cal.4th 313, 338 (Ray).) In Ray, the court held that
unwarned clarifying questions asked of a voluntarily confessing prisoner did not
constitute interrogation. (Id. at pp. 333–334, 338.) In that case, the prisoner (Ray)
invited law enforcement to discuss a series of unsolved crimes to which he wished to
confess. (Id. at pp. 333–334.) An investigator interviewed Ray at the prison and,
although he did not provide an express Miranda warning to Ray, he informed Ray he
would pass any incriminating information to the state police. (Ray, supra, at p. 334.)
During the defendant’s narrative and detailed account of his crimes, the investigator
asked clarifying questions that were largely limited to dates and locations of the crimes
and the status of the victim after the crime. (Id. at p. 334 & fn. 9.)
In rejecting Ray’s subsequent claim the interview violated Miranda, the court
reasoned the investigator did not influence the way Ray reported the crimes; the entire
confession was given in a narrative, almost rambling form; to the extent the investigator
asked questions, they were neutral inquires made for the purpose of clarifying statements
he did not understand. (Ray, supra, 13 Cal.4th at p. 338.) “Nothing in the substance or
tone of such inquiries was reasonably likely to elicit information that defendant did not
otherwise intend to freely provide.” (Ibid.)
In People v. Gamache (2010) 48 Cal.4th 347 (Gamache), a booking deputy asked
the defendant about his military past. (Id. at p. 384.) The defendant talked about his
military past, but also volunteered information about the crimes for which he was
arrested, saying, “‘I fucked up. I knew better. I should have used a .45.’” (Ibid.) The
deputy then asked the defendant what had happened, how the defendant felt, and about
one of the victims. (Ibid.) The defendant responded to each question with incriminating
statements. (Ibid.)

17.
 On appeal, the California Supreme Court noted “the police ‘may speak to a
suspect in custody as long as the speech would not reasonably be construed as calling for
an incriminating response.’” (Gamache, supra, 48 Cal.4th at p. 388, quoting People v.
Clark (1993) 5 Cal.4th 950, 985.) The court held the statements the defendant made to
the deputy were not “the product of interrogation” because even though the questions
related to the crimes for which the defendant was arrested, they were “‘“neutral
inquir[ies]”’ [that] did not convert [the defendant]’s volunteered admissions into the
product of interrogation.” (Gamache, supra, at p. 388, quoting Ray, supra, 13 Cal.4th at
p. 338.)
In People v. Franzen (2012) 210 Cal.App.4th 1193 (Franzen), the court
determined a neutral question an officer asked the suspect did not constitute
interrogation. There, an in-custody suspect was being asked booking questions when her
phone began to ring. (Id. at p. 1199.) The officer told her she could get the phone after
his questioning was done, and she said, “‘[i]t’s probably the guy looking for his money.’”
(Ibid.) The officer responded, “‘What guy?’” She replied, “‘The guy that gave my friend
the drugs to sell, I guess.’” (Ibid.) On appeal, the court concluded the officer’s question
was merely a natural conversational response to the defendant’s own statement, which, in
form and content, invited the hearer to request clarification.
Considering the circumstances here established by the officers’ testimony and the
recorded interview, it was defendant who freely began volunteering information about the
incident. Barrier and Moore testified that defendant started talking about the incident
immediately upon his arrest. As discussed above, the officers did not elicit the statements
defendant volunteered just because they placed him under arrest and told him why they
did so. The very few prewarning questions asked during defendant’s volunteered
statements were neutral and clarifying questions that did not constitute interrogation
similar to those in Ray, Gamache, and Franzen. After defendant was informed David
was in the hospital and badly injured, defendant told them the victim was no longer in the

18.
hospital. Barrier repeated the information in the form of a question, “He’s not in the
hospital no more?” and then asked defendant how he knew that.
Barrier’s first recorded question was asked to confirm whether he heard defendant
correctly—it was not eliciting any new or additional information, it was merely
confirming what defendant had said. As for the second question, nothing reflects the
officers knew David was out of the hospital or that defendant’s knowledge of the victim’s
status, or how he knew it, was material in any way; the question was neutral. Similar to
Franzen, defendant’s statement also implicitly invited Barrier to ask how defendant knew
that information since defendant was contradicting what they had just told him. (See
Franzen, supra, 210 Cal.App.4th at p. 1199.)
Barrier’s next question was again limited to clarifying whether he correctly
understood one of defendant’s statements. Defendant said “the neighbors told [him] to
stay over there,” but that he did not want to because he “had a warrant.” At this point,
Barrier asked, “Ok so you’re saying there’s people that saw it?” Like the first question
about the hospital, it was merely a question to confirm what defendant had said—it was
not seeking any information beyond what defendant had already freely provided, and it
did not invite more than a yes or no response.
Defendant responded that his neighbors had seen the incident, and he “stayed over
there.” Defendant continued to volunteer information that the victim was intoxicated and
became injured as a result, that defendant hit the victim twice in self-defense after the
victim tried to hit defendant; that his mother’s sisters were there; and that he “went to
[his] neighbors to stay away from [the victim]. He would not stop and get off of me he
just got so drunk.” Barrier then asked, “What neighbor should we go to talk to, to get
your side of this?” There is nothing in the record showing Barrier previously knew
anything about which neighbor purportedly heard or saw the confrontation, and defendant
had repeatedly noted the neighbors’ involvement.

19.
 Although defendant argues Barrier had to change the subject back to the neighbors
to elicit this information, defendant had just said he went to the neighbors to get away
from the victim—Barrier was not returning to a subject defendant had abandoned.
Barrier’s question was meant only to clarify the name of the neighbors defendant had
already mentioned repeatedly. This is similar to the investigator in Ray who asked for
dates and locations of the crimes Ray was telling the investigator about during an
extended narrative. (Ray, supra, 13 Cal.4th at p. 334 & fn. 9 [no interrogation; questions
were mostly limited to dates and locations of various crimes and the fate of the victims].)
It is also similar to the booking detective in Gamache who asked followup questions
when the defendant began volunteering information about the crime—those questions did
not convert the volunteered admissions into the product of interrogation. (Gamache,
supra, 48 Cal.4th at p. 388.)
Another question was asked when Barrier commented that defendant’s son was a
little bit taller than defendant. Defendant responded his son was 6 feet 4 or 5 inches tall
and then turned the conversation back to David without any questions from the officers.
Defendant said David was “already home. My brother was there.” Barrier asked, “Your
brother called you?” Again, given the circumstances, this was a clarifying question to
confirm whether Barrier understood what defendant meant when he said the victim was
“already home” and his “brother was there.” The initial question about defendant’s son
was merely a rapport question analogous to the booking deputy asking the defendant in
Gamache about his military experience. (Gamache, supra, 48 Cal.4th at p. 388 [“no
reason to suspect that inquiry about Gamache’s military experience would lead Gamache
to volunteer his regret about failing to kill [the surviving victim] or the other
inflammatory remarks that followed”].) Like Gamache, Barrier could not have
reasonably known that question would lead defendant to volunteering more statements
about David and the incident. The followup question about defendant’s brother was
simply to clarify what defendant was again freely volunteering.

20.
 Barrier testified he felt stopping defendant while he was voluntarily and
spontaneously talking to give a Miranda warning would have hurt the investigation
because he was giving them pertinent information. Moore described the prewarning
questions as “investigative” and clarifying. Defendant argues the prosecutor and the trial
court split hairs by trying to say that such investigatory questions were not designed to
elicit incriminating responses.
The officers’ terminology in characterizing their questions does not play a
dispositive role in determining whether they constitute interrogation. Even listening
entirely mutely to defendant would have been “investigatory” in some sense because it
might turn out to be material information. It is the context here that is critical—
defendant’s decision to immediately begin volunteering information about the incident
did not come at the behest of any question designed to elicit an incriminating response or
the functional equivalent. The few prewarning questions Barrier asked were either
neutral questions in response to what defendant had already freely and voluntarily elected
to tell them or were meant to confirm the officers’ understanding of what defendant had
said, such as asking whether defendant was saying “there’s people that saw it?” Just
because the officers broadly characterized their questions as “investigatory” does not
transform the questions into interrogation. (Gamache, supra, 48 Cal.4th at p. 388
[neutral inquiries do not convert volunteered admissions into the product of
interrogation].)
Defendant argues the officers’ admission they wanted information helpful to their
investigation is a very reliable indicator their questions were asked to elicit an
incriminating response. But, law enforcement professionals are always going to be
interested in obtaining information useful to an investigation. Their ultimate desire for
that information does not transform any question they ask into interrogation. Nor does it
mean that when a suspect has freely decided to volunteer information—uninitiated by
interrogation or its functional equivalent—that officers cannot pose any neutral,

21.
clarifying questions about those volunteered statements. Gamache and Ray hold just the
opposite. (Gamache, supra, 48 Cal.4th at p. 388; Ray, supra, 13 Cal.4th at p. 338.)
Looking at the entire context and circumstances, defendant’s initial decision to
volunteer information about the incident did not stem from interrogative questions of the
officers. The few prewarning questions asked about defendant’s volunteered statements
were posed to clarify or confirm, in very limited form, what defendant had already freely
told them; the questions did not coax or encourage additional information defendant had
not already offered; the questions did not invite a narrative response and could have been
answered with only one or two words; and the questions did not utilize information the
officers already knew in a ploy to draw out incriminating statements. The officers’
neutral inquires in response to his volunteered statements did not convert those
statements into the product of interrogation. (Miranda, supra, 384 U.S. at p. 478 [“Any
statement given freely and voluntarily without any compelling influences is, of course,
admissible in evidence.”].)
No questions posed to defendant prior to the Miranda warning constituted
interrogation. The officers’ limited statement about David being badly injured was not
the functional equivalent of interrogation—the officers could not have reasonably known
that statement would prompt defendant to volunteer incriminating statements about the
incident. Under the circumstances here, Barrier’s few followup questions about
defendant’s volunteered statements were neutral, clarifying questions about what
defendant had already freely offered. No prewarning interrogation occurred, and
Miranda was not violated. The Miranda warning administered 13 minutes into the
recording was not a mid-interrogation warning—it was administered before interrogation
began. The federal Supreme Court’s decision in Seibert, supra, 542 U.S. at pages 604,
617 (plur. opn. of Souter, J.), regarding mid-interrogation warnings is not applicable and
we do not reach defendant’s arguments in this regard.

22.
II. Use of Prior Convictions as Evidence of Defendant’s Character for Violence
Defendant argues that, despite the court’s pretrial ruling that three of defendant’s
prior convictions were admissible for purposes of impeachment, the prosecutor
introduced prior convictions that far exceeded the scope of the court’s ruling and used
them for an impermissible purpose—to argue defendant’s character for violence.
A. Background
1. Pretrial Order Regarding Use of Defendant’s Prior Convictions
Both the prosecution and defense counsel filed pretrial motions regarding the use
of defendant’s prior convictions, which included several misdemeanor and felony
convictions for corporal injury to a spouse or cohabitant (§ 273.5). Of the 11 prior
convictions identified by the prosecutor, the court ruled only three were admissible, so
long as they were not referred to as crimes of assaultive behavior.
“Count 1 is elder abuse. [⁋] So the fact that the defendant has—10 of his 11
convictions here have to do with some type of either spousal abuse or some type of
assaultive behavior, we would have to be careful how we would coin that. We’d have to
sanitize those.
“For example, he has a conviction [in] April of this year for a [battery against
cohabitant/spouse/dating partner]. That’s a little too close to home for the charges here.
So that would have to be sanitized. [⁋] … [⁋] [S]ince we have so many convictions that
are assaultive behavior, like the one we have here, we run into the problem of probative
value versus prejudicial effect on the jury. [⁋] So I’m reluctant to have the jury hear that
he’s constantly been convicted of assaultive-type behavior. So we run into the position
of where we have to pick and choose which ones in the last ten years that would be
probative, yet not too prejudicial to the defense.”
The court ruled that if defendant testified, the prosecution could impeach him with
the 2013 section 273.5 felony conviction; the 2012 section 273.5 misdemeanor
conviction; and a 2008 misdemeanor section 422 conviction. However, the convictions

23.
under section 273.5 were to be “sanitized” and the jury was to be told those were “crimes
of moral turpitude.”
2. Unsolicited Testimony of Victim’s Violent Character
During trial, Maria testified for the prosecution, and she was asked during cross-
examination about David’s drinking habits. Maria testified that when David lived with
her in the past, she had witnessed him drinking excessively and that he would fall down
from intoxication at times. On redirect, the prosecutor asked Maria why she believed
David’s behavior on the day of the incident was due to intoxication rather than from
being beaten. Maria testified it was because “he gets belligerent when he’s drinking” and
“he likes to fight when he’s drunk.”
At the end of that day’s testimony, the prosecutor asked that Maria’s testimony on
redirect that the victim was a “violent, belligerent drunk” be stricken as “improper
character evidence that would then allow [her] to get into [defendant’s] violent
character.” Defense counsel argued the prosecutor had failed to make a timely objection
to Maria’s testimony, but it was also not defendant who had brought up how David had
acted in the past when he drank. Defense counsel maintained she did not plan to open the
door to David’s violent character because, as discussed at the motions in limine hearing,
if the defense opened the door to the victim’s character for violence, then the People
would be entitled to admit evidence of defendant’s character for violence. Because
Maria’s testimony was not solicited by the defense, defense counsel argued that door had
not been opened by defendant.
The trial court observed Maria’s testimony in this regard was unsolicited. The
court ruled that once they were finished with the medical testimony, and if defendant
took the stand, the court would “revisit” the issue: “As I said, based on how direct exam
goes with [defense counsel], the issue might be moot. If it is not, [defense counsel]
didn’t broach it. I will talk with you at sidebar and we can determine how we’re going to
proceed at that time.”

24.
 Defendant took the stand the next day, but the trial court did not revisit the issue
on the record. During defendant’s cross-examination, the prosecutor asked a series of
questions about statements defendant made about David during a police interview. The
prosecutor introduced defendant’s statement to police the victim did not act like he was
65 years old, he acted like he was 30 years old, and that he was in the military.
Defendant acknowledged he made that statement and testified David was capable of
causing injuries; defendant made unsolicited comments in his cross-examination that
David was known to carry a knife and was a “violent drunk.”
3. Use of Defendant’s Prior Convictions on Cross-examination
After defendant made statements on cross-examination about David’s character
for violence, the prosecutor asked whether defendant had told police he did not have “a
history of beating people up.” When defendant confirmed that is what he said, the
prosecutor asked, “That was a lie, wasn’t it?” Defense counsel asked the court for a
moment to speak with the prosecutor, and the prosecutor requested a brief sidebar
conference. The court ordered a recess and excused the jury temporarily. Nothing about
this sidebar was placed on the record.
When proceedings resumed, the prosecutor repeated the question whether
defendant had “a history of beating people up,” and defendant responded he had
“domestic violence” on his record. The prosecutor then questioned defendant about five
prior convictions for “spousal abuse” from 2005 to 2018—far exceeding the bounds of
the court’s pretrial ruling regarding use of the prior conviction for impeachment
purposes. The record contains no objection to the prosecutor’s introduction of these prior
convictions as improper character evidence or as outside the court’s pretrial ruling.
B. Standard of Review
Rulings on the admissibility of evidence are reviewed for abuse of discretion.
(People v. Waidla (2000) 22 Cal.4th 690, 724–725.) The admission of evidence violates
a defendant’s federal due process rights if it renders the trial fundamentally unfair. (See

25.
Estelle v. McGuire (1991) 502 U.S. 62, 70; People v. Partida (2005) 37 Cal.4th 428, 439
[“[T]he admission of evidence, even if erroneous under state law, results in a due process
violation only if it makes the trial fundamentally unfair.”]; People v. Covarrubias (2011)
202 Cal.App.4th 1, 20.) Otherwise, the erroneous admission of evidence violates only
state law and is reviewed for prejudice under the standard established in People v.
Watson (1956) 46 Cal.2d 818, 836, requiring reversal only if it is reasonably probable
that the defendant would have obtained a more favorable result had the evidence been
excluded.
C. Analysis
“‘As a general rule, evidence that is otherwise admissible may be introduced to
prove a person’s character or character trait. ([Evid. Code,] § 1100.) But, except for
purposes of impeachment (see [Evid. Code,] § 1101, subd. (c)), such evidence is
inadmissible when offered by the opposing party to prove the defendant’s conduct on a
specified occasion ([Evid. Code,] § 1101, subd. (a)), unless it involves commission of a
crime, civil wrong or other act and is relevant to prove some fact (e.g., motive, intent,
plan, identity) other than a disposition to commit such an act ([Evid. Code,] § 1101,
subd. (b)).’” (People v. Fuiava (2012) 53 Cal.4th 622, 695, italics omitted.)
There are several exceptions to this rule, however. Pursuant to Evidence Code
section 1103, in a criminal action, the defendant is permitted to offer evidence of the
victim’s “character or a trait of character (in the form of an opinion, evidence of
reputation, or evidence of specific instances of conduct)” (id., subd. (a)) in order “to
prove conduct of the victim in conformity with the character or trait of character” (id.,
subd. (a)(1)). Relevant here, if defendant offers evidence the victim had a character for
violence or a trait of character tending to show violence, the prosecution is permitted to
show evidence of the defendant’s “character for violence or trait of character for violence
(in the form of an opinion, evidence of reputation, or evidence of specific instances of
conduct)” “to prove conduct of the defendant in conformity with the character or trait of

26.
character .…” (Evid. Code, § 1103, subd. (b) (Evidence Code section 1103(b) or Evid.
Code, § 1103(b)).) Thus, if a defendant offers evidence to establish the victim was a
violent person, which invites the jury to infer the victim acted violently during the events
in question, the prosecution is permitted to introduce evidence the victim was not a
violent person and the defendant was a violent person, so the jury might infer it was the
defendant who acted violently. (People v. Fuiava, supra, 53 Cal.4th at pp. 695–696.)
1. Forfeiture
Defendant argues he did not elicit evidence of the victim’s propensity for violence
when drinking—that evidence was introduced by the prosecution through Maria. And,
because defendant did not open the door for the prosecutor to introduce evidence of
defendant’s propensity for violence, it was an abuse of discretion for the trial court to
allow the prosecutor to admit defendant’s prior convictions beyond those approved for
impeachment purposes, use the term “domestic violence” in describing them, and engage
in explicit propensity reasoning. Moreover, defendant argues, even when character
evidence is admissible, it is subject to the balancing test under Evidence Code
section 352. Here, the court failed to balance the prejudicial effect of these prior
convictions under section 352, which rendered the trial fundamentally unfair and violated
defendant’s due process rights.
The People argue defendant forfeited his claim because he never once objected at
trial to admission of his prior convictions as impermissible character evidence or that
their admission was unduly prejudicial under Evidence Code section 352. Although the
court had ruled the use of three prior convictions for impeachment was permissible so
long as “sanitized,” the People argue that defendant was required to make a renewed
objection to give the trial court an opportunity to consider whether the circumstances had
changed—i.e., that defendant had presented evidence of the victim’s character for
violence. The People point out defendant also did not object to the prosecutor’s
argument in closing about defendant’s character for violence.

27.
 Defendant responds that defense counsel objected to the use of his prior
convictions to show propensity for violence at the pretrial hearing on the parties’ motions
in limine and when the prosecutor urged the court to strike Maria’s testimony about the
victim’s propensity for violence when intoxicated. Defendant concedes that, although the
sidebar conference is unfortunately missing, objection to the use of these priors as
character evidence was made and the issue was preserved for appeal.
We conclude this claim was not properly preserved and is forfeited for purposes of
appeal. It is unfortunate the sidebar conference was not recorded or memorialized for the
record. Defense counsel expressly sought a ruling prior to trial that all trial court
proceedings be recorded, which the court granted except with respect to the sidebar
conferences. While defendant was entitled to a recording of sidebar conferences upon
request (Code Civ. Proc. § 269, subd. (a)(2)), it was not clear defense counsel’s motion
explicitly related to sidebar conferences. Moreover, defense counsel did not object to this
limitation on recording.3
But forfeiture does not rest solely or even primarily on the fact that a seemingly
important sidebar conference was not recorded or memorialized. The risk of opening the
door to evidence of defendant’s violent character was well known to both parties—they
discussed this issue at the pretrial hearing on the parties’ in limine motions and after the
prosecutor’s witness gave unsolicited testimony on direct examination related to the
victim’s character for violence when intoxicated. The parties knew defendant’s
anticipated testimony might open the door to character evidence, and the court had
reserved ruling on this issue for that very reason. But when the prosecutor sought to

3 Code of Civil Procedure section 269, subdivision (a), provides that “[a]n official reporter
… of the superior court shall take down in shorthand all testimony, objections made, rulings of
the court, exceptions taken .… [¶] … [¶] (2) [i]n a felony case, on the order of the court or at
the request of the prosecution, the defendant, or the attorney for the defendant.” (See People v.
Manson (1976) 61 Cal.App.3d 102, 214 [“In the absence of request that a record be made of a
conference between court and counsel, none is required.”].)

28.
admit the prior conviction evidence as character evidence, there was no objection—only
the unrecorded sidebar. There is also no question the prior convictions were offered as
character evidence and not just for impeachment—this fact is reflected by the questioning
itself and the prosecutor argued as much in closing.
Given the timing of the sidebar and defense counsel’s failure to object to the
admission of the prior convictions as character evidence, it seems likely the issue was
addressed at the sidebar conference. Yet the record contains no objection on an
anticipated and contested evidentiary issue on which the court had reserved ruling—all
that is noted is an unrecorded sidebar conference was held on an unspecified topic, and
no summary of that conference was provided by the court or the parties after it concluded
despite that the jury was not in the courtroom.
Under these circumstances, defendant was required to press for a ruling when the
prosecutor sought to offer the prior conviction evidence to show defendant’s character,
and a renewed objection to its use as character evidence was necessary to preserve the
issue for appeal. (Evid. Code, § 353; see People v. Ramos (1997) 15 Cal.4th 1133, 1171
[ruling on admissibility of evidence reserved in anticipation of trial testimony required
counsel to press for a ruling at the time the evidence was admitted and object to the
evidence until he obtained a ruling].)
2. No Error on the Merits
Even if we were to reach the merits, however, we would be unable to conclude the
trial court abused its discretion in admitting prior convictions as evidence of defendant’s
character. The parties were well aware that if defendant opened the door to the victim’s
character for violence, then the prosecutor was entitled to offer evidence of defendant’s
character for violence under Evidence Code section 1103(b), which included prior felony
and misdemeanor convictions related to corporal injury to a cohabitant/spouse/dating
partner.

29.
 In nonresponsive answers to some of the prosecutor’s questions in cross-
examination, defendant gave unsolicited opinion testimony the victim had a character for
violence. The defense theory was that defendant hit David in self-defense when David,
who was intoxicated, swung first at defendant. In questioning defendant on his self-
defense testimony and similar prior statements to police officers, the prosecutor asked the
following series of questions:

“[PROSECUTOR:] You could have gotten away from [the victim]
when he swung at you; isn’t that true?

“[DEFENDANT:] I do not know.

“[PROSECUTOR:] Did you try?

“[DEFENDANT:] It happened so fast.

“[PROSECUTOR:] Did you try?

“[DEFENDANT:] I avoided it, yes, I did, but it was natural instinct.

“[PROSECUTOR:] Your automatic reaction was just to hit him in
the face?

“[DEFENDANT:] To defend myself. This man is known to carry a
knife.”
A few minutes later, the prosecutor introduced statements defendant made during
his police interview to the effect defendant felt he had to defend himself from the victim
because the victim had been in the military, but also that the victim was extremely
intoxicated to the point he was falling down.

“[PROSECUTOR:] So once you described how intoxicated he is
and the officers bring up his age, you indicate that he is physical, he’s in the
military, he’s in the Army. The officers confront you with the fact that you
can’t really have it both ways. Either he’s a falling-down drunk, like you
said the first time, or he’s capable of taking care of himself and is a
physical imposition to you. [⁋] Correct?

“[DEFENDANT:] He doesn’t stop.

30.
 “[PROSECUTOR:] You can’t have it both ways; right?

“[DEFENDANT:] I don’t know how you would consider—every
person reacts different to alcohol.

“[PROSECUTOR:] What was he? Was he a falling-down drunk,
like you said, or was he this military, physical Army man?

“[DEFENDANT:] He was a fallen-down drunk because he kept
getting back up.

“[PROSECUTOR:] There was no need to punch him in the face;
correct?

“[DEFENDANT:] No, that’s not correct.

“[PROSECUTOR:] Okay. Thank you. [⁋] You go on to describe
him. The officer asks you—Page 12 as well, Line 14. The officer says, ‘So
at this point he’s like this super-military guy,’ and your response is ‘Yeah.
It just came out of him, like “rawr.” It just came out of him.’

“[DEFENDANT:] No. You’re emphasizing these words like I was
talking like I was gung-ho. I was not talking gung-ho like that.

“[PROSECUTOR:] Do the words change? Is that what you said?

“[DEFENDANT:] The way you’re saying it—you’re saying it like
after this guy beat him up—this is my uncle, for crying out loud.

“[PROSECUTOR:] Did you say the words that I just read?

“[DEFENDANT:] I told the officers like ‘roar,’ like anger was
coming out of him. You’re emphasizing like I was over there gung-ho and
beat this poor man up.

“[PROSECUTOR:] They asked you if he was like a super-military
guy and your response was ‘yeah.’

“[DEFENDANT:] He was [a] violent drunk.

“[PROSECUTOR:] Super military guy?

“[DEFENDANT:] Not the military, but a violent drunk. I do know
he’s violent.” (Italics added.)

31.
 Testimony about the victim’s character for violence was introduced, and the
defense highlighted this testimony in closing arguments noting David’s character for
violence in aid of its theory defendant was acting in self-defense—“[defendant] believes
that [David] starts fights when he’s drunk, and that is corroborated by [David’s] own
sister. She said, ‘[h]e’s a belligerent drunk and he starts fights when he’s drunk,’ and
that’s what he did here. That’s what [defendant] believed. That’s what he knew. That’s
what happened. That gives rise to his actions.” The question was whether defendant had
introduced this evidence, triggering the exception for introduction of defendant’s
character for violence. (Evid. Code, § 1103(b).)
The prosecution cannot “knock[] down a straw man of its own making” by
eliciting testimony from the defendant about the victim’s character for violence in order
to offer evidence of [the] defendant’s character for violence. (See People v. Hall (2018)
23 Cal.App.5th 576, 592 [Evid. Code, § 1102 allows the prosecution to present relevant
opinion evidence regarding a defendant’s character, but only when the defendant has first
offered evidence placing his character at issue].) Whether or not Maria’s redirect
testimony was unsolicited and could not be fairly attributable to defendant, on cross-
examination defendant volunteered unsolicited testimony about the victim’s violent
character when intoxicated—not just the fact David was violent that day—and that he
was known to carry a knife. Defense counsel expressly made use of defendant’s
testimony in this regard in closing arguments on the issue of self-defense—defendant’s
testimony was clearly understood to be a statement of David’s character for violence
while intoxicated of which defendant was aware.
In combatting the theory defendant was acting in self-defense when he struck the
victim, on cross-examination the prosecutor explored the seeming inconsistency in
defendant’s statements to police that the victim was former military—implying he was a
legitimate threat in terms of prior training and physical capability when the victim
purportedly took the first swing at defendant—but also that the victim was so inebriated

32.
he was falling down, hitting his head and injuring himself. The fact David was in the
military had nothing to do with his character for violence—the prosecutor’s questions
about that statement were not eliciting any testimony about David’s violent character.
Rather, defendant’s repeated statements the victim was violent and a violent drunk were
nonresponsive to the prosecutor’s questions and unsolicited. Defendant opened the door
to evidence of his own character for violence.
If this type of unsolicited opinion testimony by a defendant does not open the door
simply because it was volunteered on cross-examination, a defendant would be able to
offer unsolicited testimony about the victim’s character for violence without a way for
the prosecutor to respond. This would create an unfair and technical loophole that
sidesteps the exception for character evidence admissible under Evidence Code
section 1103(b).
Defendant argues that if prior convictions were admissible as character evidence,
the trial court failed to consider whether those convictions were unduly prejudicial under
Evidence Code section 352 and the failure to do so violated his due process rights. But,
no objection was made on this ground either, and we have no idea what was decided or
discussed at the sidebar conference immediately before the admission of these prior
convictions. (People v. Demetrulias (2006) 39 Cal.4th 1, 21, & fn. 5 [failure to interpose
objection to “‘propensity’” evidence forfeited claim its admission violated constitutional
due process rights].) Beyond that, we cannot conclude it was necessarily an abuse of
discretion to admit these prior convictions under Evidence Code section 352 when used
as character evidence pursuant to Evidence Code section 1103(b). Not all of defendant’s
prior convictions were admitted—four prior convictions under section 273.5 between
1993 and 1998 were not offered. None of the circumstances or facts surrounding the
prior convictions were admitted, the offered convictions were not unduly remote in
time—dating back to 2005, and they were probative of defendant’s assaultive misconduct
in household and domestic relationships.

33.
 In sum, defendant’s claim his prior convictions were impermissibly offered as
character evidence is forfeited. Even were we to consider the merits, we could not
conclude it was an abuse of discretion to admit the prior convictions as character
evidence.
III. Prosecutorial Misconduct
Defendant contends the prosecutor engaged in acts of misconduct that involved a
pattern of argumentative questions in defendant’s cross-examination; referred to facts not
in evidence; denigrated defendant before the jury; and cast aspersions on defense counsel.
The People maintain most of these claims of misconduct were forfeited because no
jury admonition was requested, and, even if it had been, no prejudice can be shown. As
to claims of misconduct that were not forfeited, the People maintain there was no
prejudicial misconduct.
“Under California law, a prosecutor commits reversible misconduct if he or she
makes use of ‘deceptive or reprehensible methods' when attempting to persuade either the
trial court or the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted. [Citation.] Under the
federal Constitution, conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment upon the defendant’s
invocation of the right to remain silent—but is otherwise worthy of condemnation, is not
a constitutional violation unless the challenged action ‘“so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”’” (People v.
Riggs (2008) 44 Cal.4th 248, 298.)
A. Argumentative Questioning
Defendant argues the prosecutor engaged in a pattern of argumentative
questioning of defendant during his cross examination. Defendant points to five
instances where defense counsel’s argumentative objections were sustained, four
instances of other argumentative questions (an objection was interposed as to three of

34.
these), and an instance where an objection to an argumentative question was sustained
but the prosecutor nonetheless referred to it during closing arguments. Defendant
maintains the cumulative effect of this improper questioning was to deny defendant a fair
trial.
1. Background
Challenge No. 1: The prosecutor cross-examined defendant about his statements
to police that David was a “‘soldier’” and a “‘killer’” and that David was so intoxicated
he kept falling down every time he stood up:

“[PROSECUTOR:] So we’ve got crazy, military, aggressive,
capable, functioning man and we’ve got someone who can’t take three
steps without falling down, and every time he gets up he falls. [⁋] Sir,
which is it?

“[DEFENDANT:] Mix them both, you get a violent man.

“[PROSECUTOR:] Mix of both? Is it because that’s what’s
convenient for your story here?

“[DEFENDANT:] No, it’s not convenient. That’s what happened
that night.

“[PROSECUTOR:] Didn’t you even tell the officer that it sounded
impossible, that what you were saying sounded impossible?

“[DEFENDANT:] Yeah. I don’t know how somebody could drink
so much and still survive and breathe.

“[PROSECUTOR:] You let them know, ‘Hey, I get that my story
sounds ridiculous;’ right?

“[DEFENSE COUNSEL:]: Objection. Argumentative.

“THE COURT: Sustained.” (Boldface and italics added.)
Challenge No. 2: The prosecutor asked defendant about his statements that David
falling in the yard was comical:

35.
 “[PROSECUTOR:] Didn’t at one point you describe watching [the
victim fall down repeatedly] to the officers as being rather comical?
[⁋] … [⁋]

“[DEFENDANT:] I said it was almost comical. And the way I
emphasized it, the way I said it right now, it was almost comical, is the way
I said it like that.

“[PROSECUTOR:] Funny? Comical?

“[DEFENDANT:] Maybe it’s the wrong word I used.

“[PROSECUTOR:] That[’s] what you said, though, isn’t it?

“[DEFENDANT:] I talk in figure of speech.

“[PROSECUTOR:] What kind of figure of speech was it when you
called him a prick?

“[DEFENSE COUNSEL:] Objection. Argumentative. [⁋] … [⁋]

“THE COURT: Overruled.” (Boldface and italics added.
Challenge No. 3: The prosecutor also questioned defendant whether he told the
officers he was not going to call 911 for David because David was a “prick.”

“[PROSECUTOR:] So sir, when you were asked, ‘So you didn’t’—
‘don’t you think you should call medical aid for somebody like that,’ you
said, ‘I’m not calling for this prick;’ right?

“[DEFENDANT:] I did not say it that way.

“[PROSECUTOR:] Did you say the words?

“[DEFENDANT:] I said the words, yes.

“[PROSECUTOR:] Did you say ‘prick’ lovingly?

“[DEFENDANT:] I said, ‘I’m not calling for this prick’ the same
way I’m talking to the officer.” (Italics added.)
No objection was interposed.
Challenge No. 4: After asking defendant about his prior convictions for corporal
injury to a spouse, the following exchange occurred:

36.
 “[PROSECUTOR:] So sir, fair to say that when you said, ‘I don’t
have a history of beating people up,’ it was a lie?

“[DEFENDANT:] It’s not a lie, but it’s with the same person and
it’s not going around in public.

“[PROSECUTOR:] Does it not count if you beat up your wife or
girlfriend seven times?

“[DEFENSE COUNSEL]: Objection. Argumentative.

“THE COURT: Sustained. Rephrase.” (Boldface and italics
omitted.)
Challenge No. 5: In questioning about defendant’s prior convictions, the
following exchange occurred:

“[PROSECUTOR:] Those charges are false?

“[DEFENDANT:] No. Two of those charges are—I admit to them.
And the other ones, it was self-convicted charges to—just to get out of jail
and get back to work.

“[PROSECUTOR:] Technically you admitted to all of them;
correct?

“[DEFENDANT:] That’s the only way out of the system, isn’t it?

“[PROSECUTOR:] Or to stop beating your wife.

“[DEFENSE COUNSEL]: Objection. Argumentative.

“THE COURT: Sustained.” (Boldface and italics omitted.)
Challenges Nos. 6 and 7: In further questioning regarding defendant’s prior
convictions, the following exchange occurred:

“[PROSECUTOR:] Fair to say to say you like to pick on people that
aren’t quite as physically capable as you?

“[DEFENSE COUNSEL]: Objection. Argumentative.

“THE COURT: Overruled. You can answer.

“[DEFENDANT:] No.

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 “[PROSECUTOR:] No, you don’t think your wife is as physically
capable as you are?

“[DEFENDANT:] How do I answer this question?

“[PROSECUTOR:] Truthfully, please.

“[DEFENSE COUNSEL]: Objection. Argumentative.

“THE COURT: Sustained.”
Challenges Nos. 8 and 9: In recross-examination, the prosecutor asked about the
blood at the scene defendant had described to the police:

“[PROSECUTOR:] And then again, you told law enforcement
[David] was landing on his head everywhere and you might still see blood
all over the woodwork; right?

“[DEFENDANT:] Right. [⁋] … [⁋]

“[PROSECUTOR:] So there’s blood all over the woodwork?

“[DEFENDANT:] It turns out there wasn’t. It was nighttime. It
was just the color of the wood. It looks like blood, but it wasn’t blood.

“[PROSECUTOR:] Then again on Page 26, you told law
enforcement he had a lot of blood coming out. ‘I said’—‘when he hit his
head, I was like, Oh, my God.’

“[DEFENDANT:] That came from his mouth.

“[PROSECUTOR:] A lot of blood?

“[DEFENDANT:] Enough for me to say it’s a lot, what came out.

“[PROSECUTOR:] Were you lying then or are you lying today?

“[DEFENSE COUNSEL]: Objection. Argumentative.

“THE COURT: As phrased, sustained.

“[PROSECUTOR:] Sir, which is it? Was there a lot of blood or
not?

“[DEFENDANT:] No.

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 “[PROSECUTOR:] Then you lied to the officers?

“[DEFENDANT:] Again, figure of speech. There was blood.
When I said a lot, at that time it made it seem like a lot, but it was just
blood.

“[PROSECUTOR:] … [¶] When you say you use figures of
speech, do you mean you use false statements?

“[DEFENDANT:] No.

“[DEFENSE COUNSEL]: Objection. Argumentative.

“THE COURT: Overruled. You can answer.

“[DEFENDANT:] No.” (Boldface and italics added.)
Challenge No. 10:
In closing arguments, the prosecutor referred to a question and answer to which
the trial court had sustained an objection:
“Ladies and gentlemen, the most telling point of cross-examination to show you
that this defendant has done nothing but lie to you this entire time is when I asked him a
question and he literally looked at his attorney and asked, ‘How do you want me to
respond to that?’ [⁋] Remember when I threw my hands down on the podium and I said,
‘Truthfully. That’s how I want you to respond.’ He literally didn’t know what other lie
to tell next, and he looks over and says, ‘How do I answer that?’ [⁋] What do you want
me to stay to that? [⁋] That’s how you know everything that came out of his mouth was
concocted.”
2. Analysis
Argumentative questioning is “a tactic of posing queries that are not actually
addressed to the witness, to which answers are not really expected, and that may in fact
be unanswerable, as a device to insinuate facts not in evidence, or to make a speech to the
jury.” (People v. Shazier (2014) 60 Cal.4th 109, 141–142.)

39.
 a. Forfeiture of Misconduct Claim Where Objections Were
Sustained and No Admonition Requested or Where No
Objection Was Interposed
“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 on appeal.” (People v. Seumanu (2015) 61
Cal.4th 1293, 1328.) “The primary purpose of the requirement that a defendant object at
trial to argument constituting prosecutorial misconduct is to give the trial court an
opportunity, through admonition of the jury, to correct any error and mitigate any
prejudice.” (People v. Williams (1997) 16 Cal.4th 153, 254.) “When a defendant
believes the prosecutor has made remarks constituting misconduct during argument, he or
she is obliged to call them to the court’s attention by a timely objection. Otherwise no
claim is preserved for appeal.” (People v. Morales (2001) 25 Cal.4th 34, 43–44.)
“‘A defendant will be excused from the necessity of either a timely objection
and/or a request for admonition if either would be futile. [Citations.] In addition, failure
to request the jury be admonished does not forfeit the issue for appeal if “‘an admonition
would not have cured the harm caused by the misconduct.’” [Citation.] Finally, the
absence of a request for a curative admonition does not forfeit the issue for appeal if “the
court immediately overrules an objection to alleged prosecutorial misconduct [and as a
consequence] the defendant has no opportunity to make such a request.”’” (People v.
Seumanu, supra, 61 Cal.4th at pp. 1328–1329.)
With respect to challenges Nos. 1, 4, 5, 7 and 8 above, the trial court sustained
defense counsel’s objections, and defense counsel did not ask for any additional
admonition to cure any potential prejudice from the prosecutor having asked these
questions. Defense counsel was required to request an admonition to preserve a claim of
prosecutorial misconduct on appeal. (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1241 [“A claim of prosecutorial misconduct is not preserved unless the defendant makes
a timely objection and requests an admonition, and even then the issue is preserved only if

40.
the admonition was insufficient to cure any harm.”], overruled on other grounds in
People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Because defense counsel did not
request admonitions when objections were sustained, we conclude defendant’s claim
based on those alleged acts of misconduct is forfeited. (People v. Hajek and Vo, supra, at
p. 1241.) Further, with respect to challenge 3 above, no objection was interposed at all.
The futility exception to forfeiture does not save defendant’s claim of misconduct
as to statements where no objection or no request for an admonition was made. This
exception applies in “unusual” or extreme circumstances such as those in People v. Hill
(1998) 17 Cal.4th 800, 821, where defense counsel’s failure to object was excused by the
prosecutor’s “continual misconduct, coupled with the trial court’s failure to rein in her
excesses, [which] created a trial atmosphere so poisonous” that further objections “would
have been futile and counterproductive” to the defendant. (Ibid.) No circumstances so
“unusual” existed here. Moreover, the trial court willingly sustained objections to
argumentative questions several times—neither objecting nor seeking an admonition
were futile.
b. Overruled Argumentative Objections
The questions to which objections were overruled in challenges Nos. 2, 6, and 9
do not constitute prosecutorial misconduct.
The prosecutor questioned defendant about several things he told the police.
Defendant told officers that when David was trying to hit him, defendant was no longer
hitting him back—all defendant did was “‘hold him down.’” Defendant attempted to
clarify that he was holding David down with a water hose by splashing it in his face,
trying to “sober him up.” When the prosecutor clarified whether he actually held David
down as he told police, defendant responded that this was a “figure of speech.” Then, in
asking defendant whether he had referred to David’s continued falling as “comical,”
defendant said that was the word he used, but his emphasis was different. When the
prosecutor pressed him on whether that was the precise word he used, defendant again

41.
said he “talk[s] in figure[s] of speech.” The prosecutor then asked, “What kind of figure
of speech was it when you called him a prick?,” to which an objection was overruled.
The prosecutor confirmed defendant used that word and asked whether he meant it.
Given that defendant was attempting to walk back the expressions he used when
talking with police as mere “figure[s] of speech,” the prosecutor was legitimately seeking
an answer about what he meant when he called the victim a “prick,” as evidenced by the
followup questions. Although the question was phrased argumentatively, the prosecutor
was seeking relevant testimony about whether defendant had told officers he refused to
call 911 for David because David was being a “prick.”
The same applies to the prosecutor’s question whether by saying he used “figures
of speech” defendant meant false statements and whether he liked to pick on people who
were not as physically capable. It was legitimate for the prosecutor to clarify defendant’s
attempts to soften the words he used in discussing the victim with the police—this was
relevant to defendant’s credibility and whether defendant struck David in anger over what
David was saying to him rather than in self-defense. As for picking on people less
capable than him, even to the extent the question was improperly argumentative, it was
aimed at the evidence of defendant’s character for violence to which no objection had
been made and the door had been opened. These questions did not state or imply the
existence of facts not in evidence otherwise before the jury, they were answerable, and
the questions were not about irrelevant matters. None were so egregious that they
infected the trial with such unfairness as to deny defendant due process, and they did not
constitute a deceptive or reprehensible method to attempt to persuade the jury. (People v.
Morales, supra, 25 Cal.4th at p. 44.)
Finally, as to challenge 10, the prosecutor’s reference in closing argument to a
question that had been objected to and sustained has been forfeited. Defense counsel
made no objection to the prosecutor’s argument in this regard. Even assuming a
misconduct claim was not forfeited, the reference was not prejudicial. As already noted,

42.
the jury was instructed the attorney’s arguments were not evidence, and they were to
disregard any question during the trial to which an objection had been sustained.
c. Cumulative Effect
Defendant argues we should consider all of the argumentative questions to
evaluate the overall pattern of impropriety. Defendant cites People v. Estrada (1998) 63
Cal.App.4th 1090, 1100 (Estrada), for the proposition that unobjected-to misconduct can
be evaluated as part of a pattern. Estrada is clearly distinguishable, however. That case
presented an extreme series of misconduct by a codefendant’s counsel that was so
egregious the entire trial was infected from beginning to end. There were at least two
motions for a mistrial based on the attorney’s misconduct before opening statements even
concluded. (Id.at pp. 1097–1098.) Counsel repeatedly violated the court’s orders not to
reference the defendant’s prior arrest; referred to facts not in evidence; used the
defendant’s “sacrosanct invocation of his right to silence” as a device to bolster his
argument the defendant was a lying drug dealer; posed a question that suggested the
defendant’s own lawyer thought the defendant was guilty; improperly used the
defendant’s two prior convictions to show the defendant’s propensity to commit the
crimes; and made comments in argument that the defendant’s attorney believed the
defendant had committed perjury. (Id. at pp. 1103, 1105–1106.)
The court observed it had “never seen a display of misconduct rivaling that of
[counsel for the codefendant]” in that case. (Estrada, supra, 63 Cal.App.4th. at p. 1106.)
While some of the misconduct was not objected to, the court found it proper to consider it
all to evaluate the overall pattern of impropriety counsel displayed. (Id. at p. 1100.)
Here, nothing about the prosecutor’s argumentative questions—to which most objections
were sustained, a few were overruled, and one was not objected to at all—either by
themselves or in conjunction approached the situation in Estrada.
Considering all of the argumentative questions together, whether or not objections
were sustained, the “critical inquiry on appeal is not how many times the prosecutor erred

43.
but whether the prosecutor’s errors rendered the trial fundamentally unfair or constituted
… reprehensible methods to attempt to persuade the jury.” (People v. Hinton (2006) 37
Cal.4th 839, 864.) While the prosecutor should have refrained from asking
argumentative questions, the questions here did not met either standard. (See People v.
Peoples (2016) 62 Cal.4th 718, 794 [prosecutor’s argumentative questions did not meet
misconduct standard].)
B. Reference to Facts Not in Evidence During Closing Argument
1. Picking on Victims When No One Else is Around
Defendant argues the prosecutor improperly commented during closing argument
that defendant “picks on vulnerable victims when no one else is around.” (Italics added.)
Defendant maintains the fact no one else was around was unsupported by the evidence
given that he testified his neighbors were present at the time of the incident. The People
point out this was merely defendant’s version of events. It was the prosecution’s theory
defendant fabricated his story about the neighbors and no one else was there to witness
the altercation. The People maintain there was a reasonable inference to draw from the
fact the neighbors did not testify, and the prosecutor was entitled to comment on it.
In his reply brief, defendant responds the prosecutor was referring also to
defendant’s prior convictions and implying no one was around when those crimes were
committed; there was no evidence to make that statement or draw such an inference.
A prosecutor is given wide latitude during argument. The argument may be
“vigorous” as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. (People v. Hill, supra, 17
Cal.4th at p. 819.) Nevertheless, mischaracterizing the evidence is misconduct. (Id. at
p. 823.) So is referring to facts not in evidence. “‘Statements of supposed facts not in
evidence … are a highly prejudicial form of misconduct, and a frequent basis for
reversal.’” (Id. at p. 828.)

44.
 We agree with the People that, insofar as the prosecutor commented on the
absence of any witnesses during the altercation with David, it was not improper—that
was a fair comment on the evidence and the inference that could be drawn from it, even
to the extent it conflicted with defendant’s testimony. However, the prosecutor’s
comments went well beyond inviting the jury to draw that inference alone. The
prosecutor argued, “Unfortunately, in this situation, there were no other witnesses
around, Okay? [⁋] That is typical with this defendant, given his history. This man picks
on vulnerable victims when no one else is around.” Defendant objected the statement
assumed facts not in evidence, which was overruled. The prosecutor continued: “That’s
what spousal abuse is all about … [t]hose are the types of crimes, like elder abuse, that
are committed when nobody else is around. They wait for the opportunity to pick on the
most vulnerable people that they can find, and then they put them in the hospital, like
[David].”
No underlying facts about defendant’s prior convictions were admitted other than
they involved domestic violence against a spouse or cohabitant. Given that, the
prosecutor’s argument referred to facts not in evidence. However, whether considered
under the state’s “‘reasonable likelihood of a more favorable verdict’” standard or the
federal “‘harmless beyond a reasonable doubt’” standard, this error was harmless.
(People v. Rivera (2019) 7 Cal.5th 306, 334.) This was an isolated instance of referring
to facts not in evidence during the closing argument. Other than this comment, the fact of
defendant’s prior convictions for spousal abuse had been admitted into evidence, and the
prosecutor’s other comments regarding the prior convictions were focused on that
admitted evidence. The jury was instructed to determine the facts from the evidence
received at trial and not from any other source and that statements made by the attorneys
during the trial were not evidence.
Further, the evidence was quite strong in favor of defendant’s guilt regardless of
this statement about his prior acts. He admitted striking David twice, and his testimony

45.
was riddled with inconsistencies about whether David really presented a threat given
David’s purported state of intoxication and the manner in which events unfolded.
Defendant did not call 911 for David, although he said he saw David hit his head
repeatedly; despite David’s injuries there was evidence defendant sprayed him with a
water hose in an effort to sober him; defendant called Maria to tell her he “beat the fuck”
out of David, there was evidence he told Maria to lie to the 911 dispatcher about his
presence at the house, and he left the scene before police arrived. Although Maria denied
it, Moore testified she told him she arrived at the house, she found David lying on the
ground in the backyard and defendant was spraying him with the hose, which
contradicted defendant’s testimony he helped David into the house. There was
overwhelming evidence of defendant’s guilt, even in the absence of the prosecutor’s
reference to a fact not in evidence about defendant’s prior convictions.
For these reasons, we conclude the prosecutor’s reference to this fact not in
evidence was harmless under either state or federal prejudicial error standards.
2. Arguing the Neighbors Did Not See Anything
Defendant argues the prosecutor postulated that if the neighbors had been called as
witnesses they would have said they did not see anything, but that is not what the
prosecutor said. Rather, the prosecutor argued, “you better believe that if Audrey or
Laverne [T.] saw the victim beating himself, as the defendant wants you to believe, they
would have been up here testifying to it. No one calls witnesses to get up here and say, ‘I
didn’t see anything.’ That just wastes everyone’s time. [⁋]…[⁋] … But what good does
it do to put someone on the stand that says, ‘I didn’t see it. I have nothing to offer,’
right? It just wastes everyone’s time.” The prosecutor was arguing these were relevant
and logical witnesses for defense to call; the fact these witnesses did not testify implies
they did not see anything because it would be useless to call a witness to testify they saw
nothing. That was proper argument about the inferences that could be drawn. (People v.
Morales, supra, 25 Cal.4th at p. 44 [“At closing argument a party is entitled both to

46.
discuss the evidence and to comment on reasonable inferences that may be drawn
therefrom.”]; (People v. Gomez (2018) 6 Cal.5th 243, 299 [prosecutor may make
“‘comments based upon the state of the evidence or upon the failure of the defense to
introduce material evidence or to call anticipated witnesses.’”].)
3. Comment and Inference About the Victim’s Vomiting
Defendant argues the prosecutor improperly commented on David vomiting in the
ambulance. Defense counsel argued the victim was vomiting from alcohol intoxication.
The prosecutor argued that if, as defendant had testified, David was drinking every day to
the point where he gets drunk, “you would think that, tolerance-wise, he wouldn’t be
throwing up every day.” This was not pure speculation as defendant argues. This was a
response to the inference defense counsel had asked the jury to make that David’s
intoxication caused the vomiting, while the prosecutor was arguing the inference was
faulty because it was more likely due to his head injuries than intoxication given what
defendant claimed were the victim’s drinking habits. It was up to the jury to determine
the reasonableness of the inferences urged. (People v. Linton (2013) 56 Cal.4th 1146,
1208–1209.)
4. Comment and Inference About Blood on Defendant’s Shoes
Defendant maintains the prosecutor improperly argued the shoes defendant was
wearing during the altercation would have had blood on them had they been recovered
from defendant’s mother’s house. In context, the prosecutor argued it would not have
been helpful if the shoes had been recovered. The prosecutor argued that if, for example,
the shoes were recovered and found to have blood on them, the defense would argue the
blood came from defendant’s proximity to David after he fell multiple times and was
bleeding; the prosecution would argue any blood on the shoes came from defendant
kicking David in the head. On the other hand, if the shoes were recovered without blood
on them, the prosecutor hypothesized the defense would argue it showed David did not
bleed that much from his injuries while the prosecution would argue defendant washed

47.
them with a hose. The prosecutor argued the important inference to draw from the fact
the shoes were not recovered was that defendant had changed his shoes before he left his
mother’s house that night; the prosecutor asked the jury to infer he changed his shoes
because he knew they tied him to the crime. This was a fair comment on the evidence,
asking the jury to draw an inference from the fact defendant had changed out of the shoes
before he left the house.
C. Denigration of Defendant in Closing Argument
Defendant argues that while name-calling has been historically permitted by
courts, the prosecutor’s argument to the jury in closing calling defendant “disgusting”
and a “monster” exceeded the bounds of fair argument.
There was no objection to these statements, but even assuming a claim of
misconduct on this ground was not forfeited, on the merits we find the comments did not
constitute misconduct. The prosecutor’s comments were targeted at defendant’s
testimony that he had helped David get up the steps into the house and to the bathroom—
evincing concern for David’s welfare, yet when he talked with officers, he described
David’s falling as almost comical. The prosecutor called this discrepancy “disgusting.”
Near the end of the argument, the prosecutor described the severity of David’s injuries
and concluded defendant “had the nerve to tell the officers that it’s comical and that
[David] was a prick. What kind of monster does that?” The use of derogatory epithets to
describe a defendant is not necessarily misconduct (People v. Friend (2009) 47 Cal.4th 1,
32), and here the references were isolated, were specifically directed to the evidence, and
fit within the wide range of descriptive comments prosecutors are afforded, including
epithets (People v. Williams, supra, 16 Cal.4th at p. 221).
D. Alleged Denigration of Defense Counsel
The prosecutor asked defendant whether he liked to “pick on people that aren’t
quite as physically capable as [defendant].” The objection was overruled, and defendant
answered, “No.” The prosecutor then countered, asking if defendant didn’t think his wife

48.
was as physically capable as he. The defendant responded by asking, “How do I answer
this question?”
In closing, the prosecutor made reference to this exchange, arguing it was a
“telling point” that showed defendant had “done nothing but lie to [the jury] this entire
time” because when the prosecutor had asked him a question, “he literally looked at his
attorney and asked, ‘How do you want me to respond to that?’” The prosecutor
concluded that this was “how you know everything that came out of his mouth was
concocted.”
Defendant argues this improperly impugned defense counsel and suggested she
had assisted defendant in lying to the jury. The People respond that this argument was
forfeited because of a lack of objection, but even if considered on appeal, it was a broader
argument about why the jury should not believe defendant. The People note that when
defense counsel responded to this argument, she said she did not think the prosecutor was
making any implication that defendant was looking at defense counsel to give him the
answer.
“Personal attacks on opposing counsel, including accusations that counsel
fabricated a defense or misstated facts in order to deceive the jury, are forbidden.”
(People v. Tate (2010) 49 Cal.4th 635, 692–693.) “‘To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’” (People v. Dykes (2009) 46 Cal.4th 731,
771–772.)
We agree with the People this issue was forfeited by lack of an objection. (People
v. Seumanu, supra, 61 Cal.4th at p. 1339 [failure to object to misconduct in opening and
closing argument forfeited claim on appeal].) But even considered on its merits, we are

49.
not convinced the jury drew the damaging inference defendant suggests—that
defendant’s counsel was coaching him to deceive the jury. When defense counsel
responded to this argument in her closing statement, she indicated she did not think the
prosecutor was implying defendant was looking to her to give him the answer.
Additionally, the other inference the prosecutor could have been asking the jury to draw
was that defendant could not answer unexpected questions in a straightforward manner,
suggesting that he only had answers to questions that fit within his version of what
happened.
IV. Cumulative Error
Defendant claims the cumulative effect of these errors, even if harmless
individually, was prejudicial. “A predicate to a claim of cumulative error is a finding of
error.” (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having concluded only
that there was one error of misconduct, which was not prejudicial in itself, there is
nothing to cumulate. As such, we necessarily reject defendant’s claim of cumulative
error resulting in prejudice. (People v. Williams (2013) 56 Cal.4th 165, 201, abrogated
on other grounds in People v. Elizalde, supra, 61 Cal.4th at pp. 537–538 & fn. 9; People
v. Sedillo, supra, at p. 1068.)
V. Senate Bill No. 136
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5(b) to limit
application of prior prison term enhancements to only prior prison terms that were served
for sexually violent offenses as defined by Welfare and Institutions Code section 6600,
subdivision (b). (§ 667.5(b).) That amendment applies retroactively to all cases not yet
final on Senate Bill No. 136’s effective date. (People v. Lopez (2019) 42 Cal.App.5th
337, 341–342, citing In re Estrada (1965) 63 Cal.2d 740, 742.)
Here, the trial court imposed a one-year section 667.5(b) prior prison term
enhancement for a term served for a conviction of inflicting corporal injury on a spouse
or cohabitant (§ 273.5), which is not a sexually violent offense as defined in Welfare and

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Institutions Code section 6600, subdivision (b). On January 1, 2020, defendant's case
was not yet final.
Therefore, as the parties agree, defendant is entitled to the ameliorative benefit of
Senate Bill No. 136’s amendment to section 667.5(b). Defendant’s prior prison term
enhancement must therefore be stricken.
Where a portion of a sentence must be stricken, remand for “‘a full resentencing as
to all counts is [generally] appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances.’” (People v. Buycks (2018) 5 Cal.5th
857, 893.) But remand is unnecessary where the trial court has imposed the maximum
possible sentence. (People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
Here, the upper term was imposed on count 1 for elder abuse (§ 368), a three-year
term was imposed for the GBI enhancement finding, and counts 2 and 3 were stayed
pursuant to section 654. Full resentencing is therefore unnecessary.
VI. Dueñas Claim
At the time of sentencing in August 2018, the trial court imposed the statutory
minimum restitution fine of $300 under section 1202.4, subdivision (b)(1); a parole
revocation restitution fine of $300 under section 1202.45, subdivision (a), suspended; a
court operations assessment of $120 under section 1465.8; and a court facilities
assessment of $90 under Government Code section 70373. No objection based on
defendant’s inability to pay was interposed. Pursuant to the Court of Appeal’s
subsequent decision in Dueñas, supra, 30 Cal.App.5th 1157, defendant requests we order
remand for the trial court to conduct an ability-to-pay hearing so that it may amend the
fines and fees as indicated by the information provided at that hearing.
For the reasons set forth in our recent decision in People v. Montes, we conclude
the argument has not been forfeited and remand is appropriate so that an adequate record
may be developed. On remand, the trial court shall allow defendant to raise the issue of

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his ability to pay the fines and court assessments and to make a record on those issues.
(People v. Montes (2021) 59 Cal.App.5th 1107, 1111 (Montes).)
A. Forfeiture
As we recognized in Montes, “the failure to object in the trial court generally
forfeits a claim on appeal and this principle is applicable to constitutional claims.
(§ 1259; People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40
Cal.4th 875, 880–881.) There are exceptions to this general rule, however, and courts of
review have the discretion to consider an issue notwithstanding the failure to object.
(People v. McCullough, supra, at p. 593; In re Sheena K., supra, at pp. 887–888, fn.7.)”
(Montes, supra, 59 Cal.App.5th at pp. 1117–1118.)
Relevant here, “[t]he restitution statute [expressly] provides that the inability to
pay is not a ‘compelling and extraordinary reason not to impose a restitution fine[]’
(§ 1202.4, subd. (c)), but where … a trial court imposes a restitution fine above the
statutory minimum, the court may consider the defendant’s inability to pay in setting the
fine (§ 1202.4, subd. (d)).” (Montes, supra, 59 Cal.App.5th at p. 1118, italics added.)
Because the trial court here imposed a minimum restitution fine of $300, defendant was
precluded from objecting to the fine based on his inability to pay. (Ibid., citing § 1202.4,
subd. (c).)
Additionally, “‘[r]eviewing courts have traditionally excused parties for failing to
raise an issue at trial where an objection would have been futile or wholly unsupported by
substantive law then in existence.’ (People v. Welch (1993) 5 Cal.4th 228, 237; accord,
People v. Gomez[, supra,] 6 Cal.5th [at pp. ]286–287; People v. Black (2007) 41 Cal.4th
799, 810.)” (Montes, supra, 59 Cal.App.5th at p. 1119.) “In cases … involving the
imposition of the statutory minimum restitution fine and mandatory court assessments,
the decision in Dueñas constituted a marked departure from existing law” (ibid.), and
“[g]iven the statutory language of section 1202.4 and the state of the substantive law
prior to Dueñas, we conclude that defendant did not forfeit his Dueñas claim by failing to

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object to the minimum restitution fine and court assessments in the trial court” (id. at
p. 1121, accord, People v. Son (2020) 49 Cal.App.5th 565, 596–597; People v. Jones
(2019) 36 Cal.App.5th 1028, 1031).
B. Remand Appropriate Due to Undeveloped Record
As explained in Montes, “[w]here, as in this case, a defendant advances a claim
premised on a significant and unforeseeable development in the law that occurred after
sentencing and during the pendency of the appeal; there was no statutory right to object
to the restitution fine and court assessments at issue; and the record is wholly
undeveloped on the issue, a limited remand is appropriate to allow the parties to address
the issue in the trial court in the first instance.” (Montes, supra, 59 Cal.App.5th at
p. 1122.) “Discretion to determine an appropriate fine amount rests with the trial court
and the court is free to consider, among other factors, any money received by a
defendant, be it in the form of prison wages or gifts. (People v. Potts (2019) 6 Cal.5th
1012, 1055–1056 [concluding trial court could lawfully impose $10,000 restitution fine
despite condemned inmate’s categorical ineligibility to earn prison wages and his receipt
of only occasional small gifts of money from family, and rejecting argument ‘that a fine
is automatically invalid if a defendant is unable to pay it’].)” (Ibid.)
DISPOSITION
This matter is remanded to the trial court to allow defendant the opportunity to
raise the issue of his ability to pay the fines and assessments imposed. The one-year prior
prison term enhancement under section 667.5(b) is stricken. The trial court shall issue an
amended abstract of judgment removing the prior prison term enhancement and reflecting
any changes to the fines and assessments based on defendant’s claim pursuant to Duenas,

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supra, 30 Cal.App.5th 1157. The trial court shall forward the amended abstract of
judgment to the appropriate authorities. The judgment is otherwise affirmed.

MEEHAN, J.
WE CONCUR:

LEVY, Acting P.J.

DESANTOS, J.

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