Filed 7/28/21 P. v. Duran CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077135
Plaintiff and Respondent,
v. (Super. Ct. No. SCN374383)
PABLO DURAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Carlos O. Armour, Judge. Affirmed.
Cynthia Ann Grimm, by appointment of the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson, and Michael D. Butera, Deputy Attorneys General, for Plaintiff and
Respondent.
Pablo Duran admitted bludgeoning Robert Pierro to death with a
hammer and fleeing the scene but claimed he did so in self-defense. A jury
found Duran guilty of first degree murder and attempted carjacking, and the
court sentenced him to 26 years to life plus an additional four years six
months in prison.
On appeal, Duran asserts the trial court improperly excluded evidence
regarding the victim’s propensity to violence and improperly admitted
evidence regarding his own prior felonies and uncharged misconduct. He
further asserts the court failed to instruct the jury that he had no duty to
retreat before defending himself, failed to instruct the jury on heat of passion
voluntary manslaughter, and provided an improper instruction regarding
unanimity of the verdict. Further still, he alleges the prosecutor committed
misconduct during the closing argument, his own counsel provided ineffective
assistance of counsel, and that the cumulative nature of the asserted errors
was prejudicial. We conclude each of these contentions lack merit and, to the
extent there was any error, the error was harmless.
Finally, Duran requests that we independently review the trial court’s
decision in a sealed pretrial proceeding regarding the discoverability of
certain evidence. We have done so and also find no error in that proceeding.
Accordingly, we affirm the judgement.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Robert Pierro, owned a construction company and had, at
times, employed Duran as a skilled laborer.
On June 7, 2017, Duran went to Pierro’s personal residence. Duran
and Pierro spoke in Pierro’s home office and, at some point, ended up in the
garage. Another worker, Cristian C., was working outside and saw Duran
emerge from the garage, wave goodbye, and leave. Shortly thereafter,
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Cristian discovered Pierro lying on the floor of the garage, with multiple
wounds to his head and face. Cristian called for help, but Pierro died before
the authorities arrived.
Later that evening, Duran was stopped at a checkpoint near the border,
approximately 125 miles away from Pierro’s residence. When an agent
attempted to divert him to a secondary inspection area, Duran sped away and
led the agents on a lengthy high-speed chase, that ended in a car crash and
attempted car-jacking. Duran ultimately absconded to Mexico, where he
remained for approximately one year before being apprehended and returned
to the United States to stand trial.
At trial, Duran admitted killing Pierro, but claimed he did so in self-
defense. As a result, the prosecution and the defense presented evidence
regarding the events leading up to Pierro’s death and each individual’s
propensity for violence.
Prosecution’s Case
Daniel C. had worked construction for Pierro for some time and was
staying at Pierro’s home while Pierro was out of town the weekend before the
murder. He knew Duran because Duran had worked for Pierro on and off for
the previous year. Daniel testified Duran came by the house on two different
days that weekend and was upset because Pierro owed him money. Daniel
could not recall exactly what Duran said, but it was concerning enough that
Daniel warned Pierro to be careful when he returned.
David M. was a supervisor for Pierro and was at Pierro’s residence
briefly the morning of the murder. He saw Duran arrive shortly before he
left, along with other workers, to go to a job site. David said he received a
check from Pierro the previous day and tried to cash it that morning but was
unable to do so. Another worker, Santos P. also testified that he and David
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attempted to cash checks from Pierro on the morning of the murder, but the
bank would not accept his check due to insufficient funds. David said he
called Pierro at approximately 9:10 a.m. to inform him of the issue and, after
speaking with Pierro, he was confident Pierro would ensure they received
their wages.
Cristian was at Pierro’s residence when the murder occurred. He knew
Duran because he had seen him around the house and at social events.
Pierro’s house was under construction and, that morning, Cristian stayed
behind to clean up while the other workers left to go to a job site. Duran
arrived around the time the other workers left.
After making a trip to Starbucks, Duran and Pierro went into Pierro’s
bedroom. Cristian received a phone call for Pierro around 9:40 a.m. and took
the phone to Pierro in the bedroom. He noted that Pierro and Duran were
“just hanging out.” Pierro and Duran then came back outside and worked on
the stereo in Pierro’s truck. Cristian could hear them talking but did not
hear any arguing.
At Pierro’s request, Cristian helped Duran move a folding table with
tools on it. Cristian did not believe Duran was wearing gloves when they
moved the table. Thereafter, Cristian went to work on the pool in the back of
the house and Pierro and Duran returned to the truck.
A while later, Cristian saw Duran emerge from the garage and either
say or gesture goodbye. Duran was carrying a black trash bag that was
approximately halfway full over his shoulder, and his demeanor was “normal”
and “calm.” Approximately 7 to 10 minutes after Duran left, Cristian went
into the garage and found Pierro lying on the floor. Cristian touched Pierro’s
stomach to confirm he was still breathing, called a supervisor to come back to
the house, and then called 911.
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Officer Pantoja with the San Diego Sheriff’s Department received a
dispatch at approximately 10:53 a.m. and arrived on the scene at
approximately 11:00 a.m. Pierro was deceased by the time he arrived.
Pantoja conducted an initial search of the garage area but did not locate any
weapons.
A forensic evidence technician noted the garage where Pierro was found
was quite cluttered but there was a distinct pathway to the back. There was
a “fair amount of blood” in a spatter pattern around Pierro’s head and on a
shelf directly above him. There was a hat nearby with blood and hairs that
looked similar to Pierro’s embedded into the material. The placement of a
wound on the top of Pierro’s head was consistent with the wound being
inflicted while Pierro was wearing the hat. A criminalist that examined the
hat for DNA later indicated there was a blood stain inside the hat just behind
the button, and the blood likely belonged to Pierro.
In the house, detectives found a number of items belonging to Duran,
including mail he had received at Pierro’s address. Detective Hubbert
discovered a gun under a pillow in Pierro’s bedroom. Detective Buckley, the
lead detective at the time, concluded the gun was not particularly relevant as
there was no blood on or near it, it was some distance from the murder scene,
and there was no indication a gun was used in the murder.
Detective Hubbert also testified regarding the clothing Pierro was
wearing when murdered and said the shorts he was wearing were very loose,
such that it would be very difficult to tuck a gun into the waistband. The
police conducted an extensive search but no weapon—either a gun or
anything that appeared to have inflicted Pierro’s wounds—was found in or
near the garage.
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The forensic pathologist examined Pierro’s body at the scene and noted
a significant amount of blunt force trauma to his face and head. The pattern
of injuries was consistent with the injuries being inflicted by a hammer with
significant force. A subsequent autopsy revealed that Pierro had aspirated
blood throughout his lungs, which suggested he inhaled blood while
struggling to breathe. He also had serious skull fractures, including
depressed fractures, and bone fragments embedded in the brain tissue which
likely disrupted normal brain function. The pathologist determined the cause
of death was blunt force trauma to the head and certified the death as
homicidal violence.
A forensic consultant reviewed the autopsy report and photographs and
also concluded Pierro’s injuries were inflicted by a hammer. He reviewed the
blood spatter photographs and determined there was a minimum number of
12 strikes to Pierro’s head and face, and that at least eight of the blows to
Pierro’s face occurred while Pierro was lying on the ground.
The prosecution also presented evidence of Duran’s attempt to flee after
the murder, and the related attempted carjacking. Agent Garcia was the
primary agent at the border patrol checkpoint in Imperial County on the
night of the murder. He explained that Duran arrived at the checkpoint at
approximately 6:00 p.m. on June 7, 2017. A trained police dog alerted near
the rear of Duran’s vehicle. Duran appeared nervous and Agent Garcia
thought his story was suspicious, so he directed Duran to a secondary
inspection area.
Duran initially pulled up towards the area but then sped off. Agent
Garcia chased after Duran, along with one or two other agents. Agent Garcia
caught up to Duran within a few minutes and saw him throw an item of
clothing out the driver’s side window. He radioed to another agent, who then
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retrieved a bag containing a hoodie-style sweatshirt with a pair of gloves in
the pocket. Both the hoodie and the gloves had blood on them.
Duran drove erratically and Agent Garcia, who himself was driving at
approximately 95 miles per hour, had a difficult time staying close to him.
Approximately one hour into the pursuit, they reached the town of Julian and
Duran began running stop signs. The Border Patrol Agents decided to
disengage from the ground pursuit, in the interest of public safety. A
helicopter continued to follow Duran for a while longer but lost visibility as it
began to get dark.
At approximately 7:30 p.m., Duran lost control of the vehicle and ran
through a fence and into a ditch. A witness testified that a person came out
of the ditch and started running around asking for a ride “to get away.” He
saw something shiny in the individual’s hand and believed that it was a
pocketknife. The individual went up to one or two cars and pulled on the
handles and attempted to open the door of an occupied vehicle that had
stopped in the roadway.
Another passerby similarly testified that she saw a car stop in the road
to see what was happening and saw a man matching Duran’s description
trying to open the driver-side door of the car from the outside. She said
Duran may have had something in his hand, but she was not sure.
The police recovered a number of items from the car Duran was
driving, including a duffle bag with clothes, prescriptions, and other personal
items, as well as gloves and rope.
The criminalist conducted DNA testing on the sweatshirt and gloves
that Duran had thrown out the car window. The sweatshirt had at least
eight separate areas of blood. DNA testing indicating the blood was
predominantly from a single source and there was an extremely high
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likelihood that the source was Pierro. One of the gloves also had a blood
stain and DNA testing confirmed a very high likelihood that it was also
Pierro’s blood.
The forensic consultant also examined the sweatshirt and gloves and
determined the blood stains were consistent with a person wearing them
while “bludgeoning” Pierro with a hammer.
Defense Case
Duran testified on his own behalf. He explained that he went to
Pierro’s residence on June 7 to retrieve mail that had been sent there and to
speak to Pierro about a paycheck and documentation he needed for probation.
Pierro invited him in and they went into his bedroom to talk. Once there,
Pierro pulled out a gun, told Duran “to shut up,” and said, “I don’t care what
you want or need.” Pierro then accused Duran of working for a competitor
and threatened to kill him.
Duran and Pierro left the house and went to Starbucks. Duran asked if
anyone else was going with them because he was scared to be alone with
Pierro, and Pierro said no. They returned to Pierro’s residence and Pierro
talked to a worker that was there. Duran was scared but did not try to leave,
despite having a car nearby, because he had been through similar situations
before and thought Pierro would calm down.
Pierro called Duran back into his office and began crushing up
methamphetamine on his desk. He told Duran he needed him to clean up
some tools and put them in the garage. Pierro then consumed two lines of
methamphetamine in front of Duran. They began to walk outside but Duran
became more concerned after seeing Pierro use methamphetamine so he
asked if he could come back to do the work another day. Pierro responded,
“[t]he only way you’re leaving from here right now is in—chopped up in this
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body bag,” and pulled a bag out from the back of his truck. Another of
Pierro’s workers, presumably Cristian, was outside and heard the remark.
Pierro asked Duran and the worker to move a table over and, while they did
so, Duran asked the worker if he thought Pierro was serious. The worker
indicated Pierro was serious.
The worker went back to work on the pool and Pierro walked to his
truck, retrieved the gun from the front seat, and put it on his side. Duran
again indicated that he did not want to clean up the tools and Pierro got
upset. He struck Duran with the gun on the left side temple, almost
knocking Duran unconscious, and then grabbed Duran by the shirt and
started pulling him into the garage. Duran saw a hammer on top of a bin
and grabbed it as he passed by.
Pierro turned towards Duran with the gun and Duran struck Pierro
with the hammer. Pierro was still holding onto Duran’s shirt and the gun so
Duran continued to strike Pierro with the hammer until he fell to the ground.
Duran dropped the hammer, walked out of the garage, got into his car, and
left. He admitted fleeing from border patrol later that day and ultimately
absconding to Mexico.
Duran said Pierro had a temper and would often come to work sites
and yell at him and throw things, even in front of the homeowners. Once,
Pierro became so upset with a worker that he choked him to the point that
the worker passed out. Another former employee, Jeremy C., said Pierro
once got mad at him at a work site and pushed him away from an electrical
panel that he was working on. Cristian said Pierro had a loud voice and
sometimes lost his temper. He told the police he did not hear any arguments
the morning of the murder, but he did hear Pierro’s voice and it was loud.
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Pierro’s ex-wife, Kristen M., testified regarding Pierro’s propensity for
violence and indicated she filed for divorce because of domestic violence. In
one instance, Pierro grabbed her by the throat, leaving fingerprints on her
neck, and chest bumped her son in an effort to provoke him into a fight.
Pierro also chest-bumped her and pushed his head against hers throughout
their marriage.
On cross-examination, Daniel conceded Pierro waved a gun at him once
when he jumped the fence to get onto his property, as many of the workers
often did, and that he had found a gun in Pierro’s truck a couple of weeks
before the murder. He also testified that Pierro had a significant
methamphetamine addiction, but indicated Duran also used
methamphetamine with Pierro. He said Pierro was using drugs heavily
around the time of the murder and had started hallucinating. A detective
that interviewed Daniel on the day of the murder testified that Daniel stated,
“Do I feel bad? No. I have no feeling. Another piece of shit out of this world.”
Daniel denied making any such statement.
The forensic evidence technician testified there was a white powdery
substance on Pierro’s desk as well as a straw-like object that appeared to be
the casing of a pen that had been taken apart. A blood test conducted in
conjunction with Pierro’s autopsy was positive for methamphetamine at a
level of 0.36 milligrams per liter. An expert psychiatrist, Dr. Kalish,
reviewed the toxicology and autopsy reports and opined that this was a
significant amount of methamphetamine. He explained that higher levels of
methamphetamine cause paranoia, aggression, and hallucinations, and that
regular use over an extended period of time could lead to psychosis.
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The defense also pointed out inconsistencies in Cristian’s story. He
initially told the detectives he had not arrived at Pierro’s residence until
approximately 10:00 a.m. on June 7 and did not see anyone else at the house
that morning before he discovered Pierro’s body. Later that same day, he
admitted he was at the house earlier and that he had seen Duran. He said
that he initially lied because he was scared.
Rebuttal
On rebuttal, the prosecution presented a forensic toxicologist. She
testified Pierro’s methamphetamine level was within the typical range seen
at the forensic toxicology lab and that one could not determine someone’s
behavior based solely on the level of methamphetamine in their blood. In
addition, she explained that methamphetamine was known to have
postmortem redistribution, wherein methamphetamine in the surrounding
tissue could leach back into the blood, thereby elevating the level of
methamphetamine detected in the blood postmortem.
Verdict
After deliberating for approximately one day, the jury found Duran
guilty of attempted carjacking and first degree murder and found true an
allegation that Duran used a deadly weapon, to wit a hammer, in the
commission of the murder.
Duran appeals.
DISCUSSION
I. Evidentiary Rulings
Duran disputes a number of the trial court’s evidentiary rulings, and
contends the court erred by improperly excluding evidence regarding Pierro’s
propensity for violence while improperly admitting evidence regarding his
own prior convictions and uncharged misconduct.
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A. Relevant Law and Standard of Review
Typically, evidence of a person’s character cannot be used to prove that
the individual acted in accordance on a given occasion. (Evid. Code, § 1101,
subd. (a); People v. DelRio (2020) 54 Cal.App.5th 47, 54 (DelRio).) However,
there are a number of exceptions. (See DelRio, supra, at p. 54; Evid. Code,
§§ 1101, subd. (b), 1103.)
Of particular relevance here, a defendant may offer evidence indicating
the victim had a propensity for violence and was violent or aggressive at the
time of the crime. (DelRio, supra, 54 Cal.App.5th at p. 54; Evid. Code,
§ 1103, subd. (a).) When, as here, a defendant in a homicide case contends
they acted in self-defense, “ ‘evidence of the aggressive and violent character
of the victim is admissible.’ ” (People v. Wright (1985) 39 Cal.3d 576, 587
(Wright).) “Under Evidence Code section 1103, [violent or aggressive]
character traits can be shown by evidence of specific acts of the victim on
third persons as well as by general reputation evidence.” (Ibid.) In addition,
as there is an objective component to self-defense claims, evidence the
defendant was aware of the victim’s propensity for violence, including prior
threats or acts of violence, may be relevant to the defendant’s state of mind
during the commission of the crime. (People v. Humphrey (1996) 13 Cal.4th
1073, 1094 (Humphrey); DelRio, at pp. 55–56.)
The reverse is also true. If a defendant claims self-defense and offers
evidence the victim was a violent person, the prosecution may counter with
evidence tending to show the defendant also had a propensity for violence,
and from which the jury might infer it was the defendant that acted violently.
(Evid. Code, § 1103, subd. (b); People v. Fuiava (2012) 53 Cal.4th 622, 696
(Fuiava).) Similarly, although evidence of prior crimes or other uncharged
misconduct cannot be used to prove propensity or a general criminal
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disposition, when a defendant testifies, they place their character at issue
and may be questioned regarding prior felony convictions involving moral
turpitude. (People v. Lindberg (2008) 45 Cal.4th 1, 22 (Lindberg); People v.
Castro (1985) 38 Cal.3d 301, 306, 314–315 (Castro); People v. Feaster (2002)
102 Cal.App.4th 1084, 1091; People v. Green (1995) 34 Cal.App.4th 165, 182.)
Evidence falling under these exceptions remains subject to Evidence
Code section 352, which permits the trial court discretion to exclude evidence
if its probative value is substantially outweighed by a substantial risk the
evidence may cause undue prejudice or confuse or mislead the jury. (Wright,
supra, 39 Cal.3d at p. 587; Evid. Code, § 352.)
We review the trial court’s evidentiary rulings, including those
regarding the admissibility of character evidence, for an abuse of discretion.
(People v. Scott (2011) 52 Cal.4th 452, 491.)
B. Excluded Evidence Regarding Pierro’s Character
We turn first to Duran’s contention the trial court improperly excluded
evidence regarding Pierro’s character despite Duran’s claim of self-defense.
1. Incident with Pierro’s Brother Greg
First, Duran asserts the trial court improperly excluded evidence
regarding a fight between Pierro and his brother Greg that occurred in
February 2017, several months before the murder.
The prosecution filed a motion in limine regarding the incident and
Greg testified in an Evidence Code section 402 hearing during pretrial
proceedings. Greg explained Pierro was not doing well financially and that
he and Pierro got into a “heated argument” at the business office over an
insurance policy. Pierro yelled at Greg and Greg pushed Pierro, causing
them both to fall over a glass table. They then ended up wrestling on the
ground. Police arrived on the scene and there was a report that Pierro had
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stabbed Greg with a pair of scissors, but Greg believed he was cut by a piece
of glass from the table they fell over.
Pierro left and went home. After cleaning up the office, Greg went to
Pierro’s house to “make amends.” Once there, he jumped over a fence to
enter the property. Pierro got upset with Greg entering his property and
cocked his gun, making it ready to fire. Greg lost his temper, started yelling,
and “smacked” Pierro’s computer. Pierro told him to get out of his house. He
followed Greg outside and fired two warning shots to the side before Greg left
the property. Greg said he never felt threatened and did not believe Pierro
would hurt him.
Duran’s counsel asserted Greg was downplaying the events to protect
Pierro and that his testimony was nevertheless admissible under Evidence
Code section 1103. Counsel also represented he had a one-minute long video
clip of Pierro making threats, presumably to Greg, but did not play the video
for the court.
After hearing Greg’s testimony, and noting the investigating agency
concluded there was insufficient evidence to make an arrest, the trial court
determined the situation was a mutual combat situation in which Greg was
the aggressor and Pierro fired the gun to make Greg leave his property.
Thus, the court determined Pierro was acting in self-defense and had not
committed any type of crime of violence, such that the incident did not rise to
the level of admissible evidence pursuant to Evidence Code section 1103.
We find no abuse of discretion in the trial court’s ruling. Based on
Greg’s testimony, it was reasonable for the trial court to conclude Greg was
the aggressor in the incident and Pierro acted in self-defense. In addition,
Greg stated Pierro shot the gun to the side and he did not believe Pierro
would hurt him. Accordingly, the incident was not probative of Pierro’s
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propensity for violence and did not fall under the exception set forth in
Evidence Code section 1103.
Further, even if the evidence had some tendency to show a propensity
for violence, its probative value was outweighed by the prejudicial nature. If
the evidence had been presented, the jury might have been improperly
influenced by Pierro’s otherwise lawful use of a gun, particularly since Duran
claimed Pierro used a gun to threaten him on the day of the murder. (See
Evid. Code, § 352; Fuiava, supra, 53 Cal.4th at pp. 664, 700 [trial court has
discretion to limit the admission of violent propensity evidence to prevent
undue prejudice and past lawful use of force not particularly relevant to
propensity to use unlawful force].)
2. Pierro’s Firearms
Next, Duran raises several evidentiary issues surrounding Pierro’s
possession and alleged manufacturing of firearms.
First, Duran contends the trial court improperly excluded that Pierro
was in unlawful possession of one or more firearms. During pretrial
proceedings, Duran’s counsel argued Pierro’s guns had been confiscated
following the incident with Greg and, therefore, Pierro was not in lawful
possession of the gun found in his bedroom. However, defense counsel did not
present evidence to support the contention.
There was evidence the police confiscated one or more weapons from
Pierro following the incident with Greg, but no charges were pressed against
Pierro, and Duran presented no additional evidence indicating it unlawful for
Pierro to obtain or possess another firearm following the confiscation. To the
contrary, it is possible the seizure of Pierro’s weapons, which occurred several
months before the murder, was both temporary and related only to the
weapons that were seized. (See, e.g., Pen. Code, § 18250 et seq. [describing
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the procedures for temporary seizure, and subsequent return, of weapons at
scene of domestic violence incident]; Wright v. Beck (2020) 981 F.3d 719, 732
[“Section 18275 applies to circumstances in which a firearm is seized at the
scene of a domestic violence dispute.”].)
The court did permit evidence regarding the gun that was found under
Pierro’s pillow as the gun corroborated Duran’s allegation Pierro had
threatened him in the bedroom earlier that morning. However, as the court
explained, beyond the corroboration of Duran’s story, the mere possession of
firearms, lawful or otherwise, did not indicate Pierro had a propensity
towards violence or that he intended to use a firearm in any particular way.
(See Staples v. U.S. (1994) 511 U.S. 600, 611 [“despite their potential for
harm, guns generally can be owned in perfect innocence”].) We find no abuse
of discretion in the trial court’s ruling. (See Wright, supra, 39 Cal. 3d at
pp. 587–588 [admission of character evidence under Evidence Code section
1103 is not without bounds]; People v. Shoemaker (1982) 135 Cal.App.3d 442,
449 (Shoemaker) [no abuse of discretion where trial court excluded propensity
evidence related to charges for which victim had not yet been tried].)
Next, Duran argues Detective Buckley’s statement that the gun found
in Pierro’s bedroom was not particularly relevant opened the door to cross-
examination regarding the incident with Greg and the related confiscation.
Again, though, as there was no evidence establishing Pierro was not
permitted to obtain or possess another gun, neither the incident with Greg
nor the confiscation notice itself imparted any particular relevance onto the
gun found in Pierro’s room. Further, to the extent Duran wished to cross-
examine Buckley regarding the thoroughness of his investigation into the
gun, separate from the incident with Greg and the confiscation notice, the
court permitted him leeway to do so.
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Similarly, Duran contends the court improperly redacted a photograph,
Exhibit O, to remove an image of the notice from the sheriff regarding the
confiscation. In the photograph, the notice is sitting on Pierro’s desk next to
the methamphetamine. As he did at trial, Duran asserts the inclusion of the
sheriff’s notice was intentional and its existence at the crime scene was
relevant to refute Detective Buckley’s statement that the gun was not
relevant. However, as the trial court pointed out, the incident with Greg and
the resulting confiscation of Pierro’s weapons had already been excluded.
Duran’s counsel put the photograph into evidence in violation of the court’s
prior ruling—which we have already concluded was not an abuse of
discretion—and, as the trial court indicated, permitting evidence regarding
the confiscation would have been prejudicial and confusing absent a
description of the event itself. (See Evid. Code, § 352.)
Finally, Duran contends the court improperly excluded evidence
indicating Pierro was assembling or manufacturing his own firearms. Here
as well, Duran did not offer proof sufficient to support the contention.
Counsel relied on a witness statement that included the following: “John
knew that [Pierro] had been assembling a Glock handgun to get his mind off
the divorce. John stated he didn’t know if he was finished assembling it or
how many he has assembled because he never saw them completed.” As the
court noted, assembling—or potentially taking apart and re-assembling—a
gun is not the same as manufacturing—or creating a gun from parts—and
does not, in and of itself, indicate a propensity for violence. The trial court
said it would reconsider its ruling if Duran brought in a witness that actually
saw Pierro manufacturing a firearm, but Duran did not present any further
evidence.
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Accordingly, we find no abuse of discretion in the court’s rulings
regarding Pierro’s firearms.
3. Domestic Violence
Following an Evidence Code 402 hearing, the trial court allowed Duran
to present testimony from Pierro’s ex-wife, Kristen, regarding domestic
violence in their relationship. However, the court placed certain limits on
that testimony, which Duran now contends were improper. In particular, the
court said Kristen could not mention that Pierro “threw everything off [her]
desk around the room” because that was not an act of violence and could not
mention that certain allegations were described in a request for restraining
order that she filed.
We find no abuse of discretion in those rulings. We agree with the trial
court that throwing items off a desk is not meaningful evidence of a
propensity for violence. The trial court’s reason for excluding mention of the
restraining order is less evident from the record, but, regardless, the fact that
Kristen filed a request for a restraining order, in and of itself, was not
particularly probative of Pierro’s propensity for violence. The trial court did
not preclude Kristen from talking about any underlying violent actions that
were included in the filing, or that led her to file, and the prosecutor did not
ask whether she reported the incidents. (See Shoemaker, supra, 135
Cal.App.3d at p. 449 [trial court’s discretion to omit cumulative evidence
upheld absent a clear showing of abuse].)
At the conclusion of her testimony, defense counsel asked Kristen about
an incident involving a pillow. The prosecutor objected because there was no
discussion of an incident involving a pillow during the section 402 hearing
and the trial court sustained the objection. We also find no abuse of
discretion in that ruling. The purpose of the section 402 hearing was to allow
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the court to hear Kristen’s testimony outside the presence of the jury in order
to determine which portions were admissible. (See Evid. Code, § 402.) The
court could not evaluate testimony that was not presented, and Duran’s
counsel did not request a sidebar or make any other attempt to discuss the
potential additional testimony outside the presence of the jury.
4. Testimony Regarding Pierro’s Business Practices
Duran next contends the trial court improperly precluded evidence
regarding Pierro’s business practices.
First, defense counsel attempted to elicit testimony from a building
code inspector, Shaun D., indicating Pierro had received building code
violations on many of his construction projects, and that Pierro was a “jerk”
that used demeaning, demoralizing, or vulgar language with his employees.
The court sustained objections to both lines of questioning as irrelevant.
Again, we find no abuse of discretion. The trial court had already
admitted evidence that Pierro’s business was struggling and that he was
having trouble paying his workers. The fact that Pierro had building code
violations was not probative of a propensity to violence and was not relevant
for any other reason other than an attack on Pierro’s character. (See People
v. Young (2019) 7 Cal.5th 905, 949–950 (Young) [exception for violent
propensity evidence does not make general character evidence admissible].)
Similarly, the fact that Pierro used inappropriate language with his
employees did not suggest a propensity for violence and was, likewise, an
improper character attack. (Ibid.)
Duran also points out that the prosecutor said he would object to
similar testimony from Jeremy C. regarding Pierro’s business practices. The
trial court never made a ruling with respect to Jeremy’s testimony, though,
as Duran’s counsel did not argue the point or ask the question to Jeremy.
19
The court did indicate it did not believe testimony regarding threats Jeremy
had allegedly heard Pierro and Duran make to one another was admissible
and Duran’s counsel agreed to move on. To the extent the court’s statement
could be construed as a ruling, we would find no abuse of discretion. Counsel
indicated the threats were made approximately one year before the murder
and both Pierro and Duran each made threats to one another. Thus, the
testimony was not particularly probative of either’s propensity for violence or
state of mind on the day of the murder.
5. Hallucinations
Finally, Duran asserts the trial court improperly limited testimony
regarding Pierro’s hallucinations.
Daniel testified Pierro was using a lot of drugs and had started
hallucinating. Duran’s counsel asked him, “what kind of hallucinations
would he have, in your opinion?” The prosecutor objected to relevance and
lack of foundation, and the court sustained the objection.
We find no abuse of discretion in the court’s ruling. There was no
foundation indicating Daniel had the ability to identify the “kind” of
hallucinations Pierro was having. (See People v. Caro (2019) 7 Cal.5th 463,
503 [“A lay witness must have personal knowledge of the facts to which he or
she testifies.”].) Regardless, the court permitted evidence that Pierro had
been abusing drugs and was having hallucination prior to the murder, that
Pierro had a relatively high level of methamphetamine in his blood on the
day of the murder, and that methamphetamine can cause hallucinations.
Daniel’s lay opinion regarding the kind of hallucinations Pierro was having
had minimal probative value in light of this other evidence.
20
C. Evidence Regarding Duran
Despite extolling the importance of evidence concerning Pierro’s
character, Duran next contends the trial court erred by allowing evidence
concerning his own propensity to violence.
1. Duran’s Use of Methamphetamine
First, Duran asserts it was improper for the prosecutor to cross-
examine him regarding his own drug use and, in particular, his use of
methamphetamine with Pierro. However, it was Duran who put drug use
into issue by presenting evidence that Pierro used methamphetamine on the
morning of his death. Duran argues his own drug use was not relevant
because there was no evidence that he was under the influence of
methamphetamine that day, but that was, at least in part, because he fled
following the murder, preventing law enforcement from determining whether
he was under the influence. The fact that Duran may have been using
methamphetamine with Pierro, including on the day of the murder, was
relevant for all the same reasons that it was relevant whether Pierro was
doing so.
2. Duran’s Prior Convictions
Next, Duran argues the trial court should not have allowed the
prosecutor to ask him about an auto theft conviction from 2006, a domestic
violence conviction in 2009, and an assault in 2015. These were all
admissible as prior felonies involving moral turpitude and the latter two were
also admissible as showing a propensity for violence.1 (See Lindberg, supra,
45 Cal.4th at p. 22; Castro, supra, 38 Cal.3d at pp. 306, 314–315; People v.
1 We note that the trial court properly exercised its discretion and
excluded another prior for human smuggling based on its potential for
prejudice given the heightened atmosphere surrounding immigration at the
time of trial.
21
Hunt (1985) 169 Cal.App.3d 668, 675 [auto theft is a crime involving moral
turpitude]; Evid. Code, § 1103, subd. (b).)
Further, Duran made some attempt to evade law enforcement, either
resisting arrest or fleeing, after each of the admitted crimes. In the present
case, Duran conceded he fled after killing Pierro but said he did so because he
was scared. Accordingly, evidence he had a pattern of evading the police
following unlawful activity directly refuted his own testimony and, thus,
undermined his credibility. Duran asserts the evidence was not particularly
relevant to his state of mind on the day of the murder, but that is beside the
point, as it was nevertheless relevant and admissible for these other reasons.
Duran also contends the prosecutor’s cross-examination concerning the
details of his previous domestic violence was prejudicial because the
prosecutor referred to him beating, punching, choking, and kicking his
girlfriend. Although graphic, those details were highly probative of his
propensity for physical violence, which was squarely at issue, and, in any
event, they were no more graphic than Duran’s admitted actions of
repeatedly hitting Pierro in the face and head with a hammer. (See People v.
Poplar (1999) 70 Cal.App.4th 1129 [evidence of prior acts of domestic violence
not prejudicial where violence was no more inflammatory than the crime at
issue].) Thus, they were relevant and admissible under Evidence Code
section 1103, subdivision (b) and not barred by Evidence Code section 352.
3. Evidence Regarding the Border Patrol Chase
Finally, Duran contends the trial court erred by allowing evidence
regarding the high-speed chase with border patrol and that narcotics were
thrown out of the car during the pursuit.
As an initial matter, the narcotics were mentioned only briefly and
were relevant to the reason border patrol initially stopped Duran, as well as
22
the assertion that Duran used drugs along with Pierro both in general and on
the day of the murder.
Regarding the chase itself, Duran was charged with attempted
carjacking in relation to the pursuit. It was reasonable for the court to allow
some evidence regarding the pursuit, as the evidence indicated the motive
behind the attempted carjacking was to continue evading border patrol.
Duran argues the jury was misled to believe Duran’s state of mind after the
murder was relevant, but evidence of consciousness of guilt is relevant, and
fleeing certainly demonstrates a consciousness of guilt. (See People v.
Anderson (2018) 5 Cal.5th 372, 391 [“Evidence showing consciousness of
guilt, such as flight or escaping from jail, is generally admissible within the
trial court's discretion.”]; People v. Merriman (2014) 60 Cal.4th 1, 62–63
[post-murder behavior demonstrating consciousness of guilt carries
significant probative value].)
Accordingly, we find no abuse of discretion in the trial court’s
evidentiary rulings regarding evidence related to Duran.
D. The Trial Court’s Evidentiary Rulings Were Not Prejudicial
Even if we were to find error in the trial court’s evidentiary rulings, we
would conclude any such error was not so prejudicial as to require reversal.
Duran asserts the evidentiary rulings violated his constitutional right
to a fair trial by depriving him of his right to present a complete defense and
his right to cross-examine witnesses. He therefore contends the standard of
prejudice set forth in Chapman v. California (1967) 386 U.S. 18, 24
(Chapman) is applicable. Under Chapman, reversal is required unless any
error was harmless beyond a reasonable doubt. (Chapman, at p. 24.)
Assuming, without deciding, the weightier Chapman standard applies, we
23
conclude any abuse of discretion in the trial court’s evidentiary rulings was
harmless beyond a reasonable doubt.
First, the evidence of guilt was overwhelming. Duran admitted to
repeatedly bludgeoning Pierro with a hammer. He claimed he did so in self-
defense, but to prove either perfect or imperfect self-defense, Duran had to
prove he had an actual, genuine fear of imminent peril. (See Humphrey,
supra, 13 Cal.4th 1082; In re Christian S. (1994) 7 Cal.4th 768, 773
(Christian S.).) Duran claimed Pierro threatened and hit him with a gun, but
there was no gun found in or near the garage where the murder happened,
and no evidence one had been removed. In addition, Christian testified there
was no apparent conflict between Duran and Pierro leading up to the murder
and said Duran’s demeanor was “normal” and “calm” as he walked away from
the garage.
Moreover, there was evidence Duran hit Pierro approximately eight
times in the face with the hammer even after Pierro fell to the ground.
Afterwards, Duran did not tell Cristian what had happened and did not take
any other steps to help Pierro, as he lie on the garage floor dying. Instead,
Duran drove to the border and evaded border patrol on a lengthy high-speed
chase. He then absconded to Mexico, where he remained for approximately
one year before being apprehended and returned to the United States to
stand trial.
Duran asserts the probative value of the excluded character evidence
was high because there were no independent witnesses and no real motives
for murder. Thus, whether Pierro was the aggressor was a key issue and
evidence that he was violently aggressive, quick to anger, and had access to
multiple illegal firearms was directly on point. We agree that evidence of
Pierro’s propensity for violence was relevant and admissible, but the trial
24
court permitted a significant amount of evidence of that nature, including
evidence that Pierro had a temper and would throw things at workers, that
Pierro choked a worker until he almost passed out, that Pierro engaged in
domestic violence with his ex-wife, and that Pierro was using significant
amounts of methamphetamine and hallucinating in the day leading up to the
murder. As discussed, ante, in section I.B., the additional character evidence
the trial court excluded was cumulative and not particularly probative of
Pierro’s propensity for violence, especially when compared to the evidence
that was admitted. (See Shoemaker, supra, 135 Cal.App.3d at p. 449; Young,
supra, 7 Cal.5th at pp. 949–950.)
Duran contends the excluded evidence at issue here was similar to the
evidence excluded in DelRio, and the court in DelRio concluded the exclusion
was not harmless. (DelRio, supra, 54 Cal.App.5th at pp. 54, 57.) To the
contrary, the evidence at issue in DelRio related to a series of domestic
violence incidents, including at least one that involved choking. (Id. at p. 54.)
Here, as in DelRio, the trial court permitted testimony regarding domestic
violence perpetrated by Pierro as well as other incidents where Pierro was
physically aggressive. By contrast, the excluded evidence did not involve
physical violence and, in the case of the incident with Greg, was not probative
of a propensity for violence because Pierro was acting lawfully and in self-
defense. Thus, if anything, the trial court’s evidentiary rulings in this case
were consistent with the appellate court’s analysis in DelRio.
Duran further contends the prosecutor compounded the error by
pointing out there was no evidence of “Pierro being this awful human being”
and, in fact, Pierro was “not so scary.” As discussed, the court did permit
testimony regarding Pierro’s history of domestic violence and at least two
incidents where he was physically aggressive with workers. What the trial
25
court excluded was inadmissible character evidence, or evidence that Pierro
was simply an “awful human being.” While it may have been part of the
defense strategy to characterize Pierro as such, a verdict based on such a
general characterization would have been improper.
With respect to the evidence admitted against Duran, he contends the
verdict was not close because the jury asked two questions about the
attempted carjacking charge, and thus there is a likelihood the jury was
improperly influenced by evidence of his character. As an initial matter, we
note the jury took less than one full day to deliberate on all charges and
asked no questions regarding the murder charge, or the related self-defense
instructions. Regardless, the evidence concerning Duran’s prior felonies and
other uncharged conduct was not any more influential than the evidence
presented regarding Pierro’s past acts of violence and use of
methamphetamine.
As discussed, the evidence of guilt was overwhelming, and there is no
real probability that the competing character evidence, and in particular any
of the evidence that Duran now contends was improperly admitted or
excluded, had any significant impact on the verdict. Accordingly, we conclude
any error in the trial court’s evidentiary rulings was harmless beyond a
reasonable doubt.
II. Jury Instructions
Duran contends the trial court erred with respect to several jury
instructions, including with respect to the duty to retreat, heat of passion
voluntary manslaughter, and unanimity of the verdict.
A. Relevant Legal Principles and Standard of Review
“When a defendant bases his contention of innocence on particular
facts, he is entitled to have the jury instructed on the general law as it relates
26
to those facts, if he submits proper instructions thereon.” (People v.
Terry (1970) 2 Cal.3d 362, 402.) However, “the court need not give a pinpoint
instruction if it is argumentative, merely duplicates other instructions, or is
not supported by substantial evidence.” (People v. Hartsch (2010) 49 Cal.4th
472, 500.)
We review challenges to the jury instructions under a de novo standard
of review and independently assess whether the instructions as a whole
correctly stated the law. (People v. Posey (2004) 32 Cal.4th 193, 218; People v.
Tate (2010) 49 Cal.4th 635, 686.) Likewise, in determining whether an
instructional error related to state law is prejudicial and requires reversal,
we apply the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836
(Watson), and consider whether there is a reasonable probability the jury
would have reached a verdict more favorable to the defendant absent the
error. (People v. Falsetta (1999) 21 Cal.4th 903, 925.) We consider a disputed
instruction in light of the entire charge to the jury and determine whether
there is a reasonable likelihood the jury misunderstood and misapplied the
instruction with the understanding that the jurors are intelligent and
capable of understanding all of the given instructions. (People v. Moore
(2011) 51 Cal.4th 1104, 1140; People v. Lopez (2011) 198 Cal.App.4th 698,
708; Estelle v. McGuire (1991) 502 U.S. 62, 72.)
B. Analysis
1. Duty to Retreat
The trial court instructed the jury with a modified version of CALCRIM
No. 505, explaining the circumstances under which the jury could conclude
Duran acted in lawful self-defense. Duran’s counsel did not object to the
instruction the trial court proposed and did not request any modifications or
additions.
27
Duran now claims that the trial court should have included—and
defense counsel should have requested—the following optional paragraph in
CALCRIM No. 505 regarding the duty to retreat:
“A defendant is not required to retreat. He or she is entitled to
stand his or her ground and defend himself or herself and, if
reasonably necessary, to pursue an assailant until the danger of
[death/great bodily injury] has passed. This is so even if safety
could have been achieved by retreating.”
As the additional language is akin to a pinpoint instruction, the trial
court had no sua sponte duty to provide the instruction absent a request from
counsel. (See People v. Saille (1991) 54 Cal.3d 1103, 1120; People v. Hudson
(2006) 38 Cal.4th 1002, 1012 [“ ‘a party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or
amplifying language’ ”].) However, since Duran also raises an ineffective
assistance of counsel argument, we consider whether it would have been
appropriate for the trial court to give the instruction if Duran’s counsel had
requested it.
An instruction on the lack of a duty to retreat is not required in the
absence of evidence the defendant “considered retreating but chose not to do
so” or “could have retreated but did not do so.” (People v. Pruett (1997) 57
Cal.App.4th 77, 89.) Here, Duran continually asserted that, by the time he
developed a genuine fear of imminent harm, he had no ability to retreat. (See
Humphrey, supra, 13 Cal.4th at p. 1082; In re Christian S., supra, 7 Cal.4th
at p. 773.)
Specifically, Duran testified he initially was not too concerned about
Pierro’s threats or behavior and believed he could calm Pierro down because
he had been through similar situations with him in the past. It was only
28
once Pierro made the comment about the body bag that Duran believed there
was a real threat of imminent harm, but at that point, he did not believe he
could leave. According to Duran, Pierro was never more than 20 feet away
and had a gun, and, thus, Duran believed Pierro would shoot him if he
attempted to leave. Shortly thereafter, Pierro allegedly hit Duran with the
gun and began dragging him into the garage. At that point, Duran said his
legs were weak from the hit and he could not get away. Accordingly, Duran’s
own testimony indicated he never considered or believed he had a choice to
retreat, and therefore negated the need for the optional, additional language
regarding the duty to retreat.
Regardless, there is not a reasonable probability the jury would have
reached a verdict more favorable to Duran if the trial court had provided the
additional language regarding the duty to retreat. (People v. Falsetta (1999)
21 Cal.4th 903, 924.) Given the totality of the court’s other instructions on
self-defense, we find it highly improbable that the jury would have concluded
self-defense was not applicable simply because Duran did not attempt to
leave. The jury was also instructed regarding voluntary manslaughter based
on imperfect self-defense but still found Duran guilty of first degree murder,
indicating they did not believe he actually believed he was in imminent
danger. (Humphrey, supra, 13 Cal.4th at p. 1082 [both perfect and imperfect
self-defense require proof of an actual, genuine fear of imminent peril].)
Thus, it appears the jury did not credit Duran’s testimony and instead
credited the overwhelming evidence supporting the prosecution’s theory that
Duran deliberately killed Pierro with malice aforethought. (See People v.
Lewis (2001) 25 Cal.4th 610, 646 [an instructional error “is harmless when
the jury necessarily decides the factual questions posed by the omitted
29
instructions adversely to defendant under other properly given
instructions”].)
Duran argues the prosecutor suggested he should have retreated, but
the prosecutor’s questions appear, instead, to question the veracity of Duran’s
timeline and version of the events. Duran also points to the prosecutor’s
statement, “If there’s an option to leave, then we do not have to use
immediate force, and any other reasonable person would have believed that.”
When read in context, the prosecutor was not asserting that Duran had a
duty to retreat and was instead questioning whether Duran had an actual
and reasonable belief that he needed to use immediate force. Again, when
read in that context, the argument was consistent with the omitted
instruction, which states the defendant may stand their ground until the
danger of death or great bodily harm has passed. If Duran did not actually
believe Pierro posed a threat of imminent harm, it did not matter whether he
had a duty, or attempted, to retreat.
Finally, Duran compares this case to People v. Rhodes (2005) 129
Cal.App.4th 1339 (Rhodes). There, the trial court instructed the jury with
CALJIC No. 12.50 “Use of a Firearm by Convicted Felon—Self-Defense,”2 but
2 CALJIC 12.50 states:
“A person previously convicted of a felony does not violate section
[12021] [29800] of the Penal Code [or any of its subdivisions] by being in
possession of a firearm if:
“1. [He] [She] as a reasonable person had grounds for believing and did
believe that [he] [she] was [or] [others were] in imminent peril of great bodily
harm; and
“2. Without preconceived design on [his] [her] part, a firearm was made
available to [him] [her];
“3. [His] [Her] possession of such firearm was temporary and for a
period of time no longer than that in which the necessity or apparent
necessity to use it in self-defense continued; and
30
refused to give CALJIC No. 5.50, “Self-Defense—Assailed Person Need Not
Retreat,”3 in part because Rhodes was a convicted felon and the use notes for
CALJIC No. 12.50 indicated CALJIC No. 5.50 should not be given if the
defendant was previously convicted of a felony. (Rhodes, at pp. 1343–1344.)
The appellate court determined the trial court erred because CALJIC No.
12.50 is to be used only when a defendant was charged with violating then
Penal Code section 12021, and Rhodes was not charged under section 12021.
(Id. at pp. 1345–1346.) In that context, the court further determined CALJIC
No. 5.50 would have been appropriate, in part because Rhodes testified that
he was going to drive away but did not because one of the victims had a gun
and he was afraid they would shoot him. (Id. at p. 1346.) The court then
went on to determine the cumulative effect of “giving CALJIC No. 12.50, not
giving CALJIC No. 5.50, and the district attorney's emphasis on the trial
court's erroneous instruction of the law was prejudicial.” (Id. at p. 1348.)
Here, as discussed, and unlike Rhodes, Duran never indicated he
considered retreating but decided not to. Moreover, even if we were to
“4. The use of the firearm was reasonable under the circumstances and
was resorted to only if no alternative means of avoiding the danger were
available.”
3 CALJIC 5.50 states:
“A person threatened with an attack that justifies the exercise of the
right of self-defense need not retreat. In the exercise of [his] [her] right of
self-defense a person may stand [his] [her] ground and defend [himself]
[herself] by the use of all force and means which would appear to be
necessary to a reasonable person in a similar situation and with similar
knowledge; and a person may pursue [his] [her] assailant until [he] [she] has
secured [himself] [herself] from danger if that course likewise appears
reasonably necessary. This law applies even though the assailed person
might more easily have gained safety by flight or by withdrawing from the
scene.”
31
conclude Duran’s testimony was sufficiently similar to support the inclusion
of the duty to retreat language, Duran does not assert the trial court provided
an entirely inaccurate instruction like the court did in Rhodes. (See Rhodes,
supra, 129 Cal.App.4th at p. 1348.) To the contrary, and notwithstanding
Duran’s assertion regarding the duty to retreat language, the trial court here
provided an otherwise complete and accurate set of instruction on both
perfect and imperfect self-defense.
2. Heat of Passion
Next, Duran asserts the trial court erred by failing to instruct the jury
on heat of passion voluntary manslaughter.
The trial court has an obligation to instruct the jury on voluntary
manslaughter based on sudden quarrel or heat of passion if the associated
defense theory is supported by substantial evidence. (People v. Breverman
(1998) 19 Cal.4th 142, 160 (Breverman); People v. Rogers (2006) 39 Cal.4th
826, 866; People v. Young (2005) 34 Cal.4th 1149, 1200.) Evidence is
substantial so long as a reasonable jury could find it persuasive. (People v.
Young, at p. 1200.) The trial court determines whether there is substantial
evidence to support a given instruction without reference to the credibility of
the evidence but is not obligated to give an instruction based solely on
conjecture or speculation. (Ibid.)
A reduction of a charge from murder to voluntary manslaughter based
on sudden quarrel or heat of passion requires both subjective and objective
findings. (Breverman, supra, 19 Cal.4th at p. 163.) The defendant must have
acted with obscured judgment due to a provocation by the victim and the
provocation must have been sufficient to cause a person of average
disposition to act rashly and without due deliberation. (Ibid.; see also People
32
v. Steele (2002) 27 Cal.4th 1230, 1252–1253 [defendant must prove adequate
provocation and actual heat of passion].)
Here, the trial court determined an instruction on voluntary
manslaughter was not appropriate because, while Duran testified that he
feared for his life, he never indicated he was provoked. Both the prosecutor
and defense counsel agreed, and substantial evidence supports the court’s
conclusion.
Duran denied being mad or upset at Pierro on the day of the murder,
because of the money Pierro owed him or Pierro’s actions that day. Duran
did say he was scared for his life, but he did not suggest at any time that his
fear caused him to act rashly or without due deliberation. To the contrary, he
explained how the situation unfolded throughout the day and how he initially
believed he could calm Pierro down. Further, he explained how he first tried
to push Pierro off so he could get away and began looking around for a
weapon only once he realized that was not working. He saw the hammer was
accessible and made a conscious choice to use it to defend himself. Duran
said he continued to strike Pierro after the first blow because Pierro did not
release his grip on Duran’s shirt or the gun and Duran did not want to get
shot. Consistent with Duran’s own account, Cristian testified Duran’s
demeanor was “normal” and “calm” immediately after the murder.
Duran points out that the prosecutor asserted he was angry during
closing arguments, but the prosecutor said that Duran was angry before he
got to the house that day as part of her argument that Duran went there with
the intent to murder Pierro. Setting aside the fact that attorney argument is
not evidence, the prosecutor’s theory as set forth in closing arguments did not
support an inference that Pierro provoked Duran to the point of acting
irrationally, and did not support a heat of passion instruction.
33
Duran asserts People v. Thomas (2013) 218 Cal.App.4th 630 is
instructive. In Thomas, the defendant and the victim had been involved in a
dispute over a parking space for some time, they had quarreled earlier that
day, and there was testimony indicating the defendant was upset and said,
“I’m going to get this motherfucker” right before shooting the victim. (Id. at
pp. 634–635.) In addition, the defendant himself testified he was “afraid,”
“nervous,” and “just wasn’t thinking clearly.” (Id. at pp. 639–640.) The
appellate court indicated, although the “facts may fit more precisely with a
homicide mitigated by imperfect self-defense, we cannot rule out that they
may also show that Thomas was guilty only of voluntary manslaughter
because when he shot [the victim] his passion was aroused and his reason
was obscured due to a sudden quarrel.”4 (Id. at p. 645.)
To the contrary, here, Duran said Pierro threatened him and he feared
for his life, but there was no evidence of a quarrel leading up to the murder
and, although Duran testified in his own defense, he did not state or suggest
that he was not thinking clearly or that his reasoning was obscured by anger,
fear, or any other emotion when he killed Pierro. As such, the perfect and
imperfect self-defense instructions were warranted, but the heat of passion
voluntary manslaughter instruction was not.
Moreover, even if the court erred by failing to give a heat of passion
instruction, we would conclude the error was harmless. Despite the general
rule regarding prejudice for instructional errors, Duran asserts the failure to
4 Similarly, in People v. Millbrook (2014) 222 Cal.App.4th 1122, which
Duran also relies upon, there was evidence the victim had engaged in
belligerent and threatening conduct throughout the day, had purposefully
escalated a fight with the defendant, and had insulted or threatened the
defendant’s girlfriend immediately before the defendant shot him, and the
defendant testified the situation was “very intense” and “he panicked.” (Id.
at pp. 1130, 1134, 1141.)
34
instruct on a lesser included offense violates the defendant’s constitutional
rights to due process and a fair trial and therefore must be analyzed
according to the more stringent standard of prejudice set forth in Chapman.
(See Thomas, supra, 218 Cal.App.4th at p. 633; but see also Breverman,
supra, 19 Cal.4th at pp. 168–169 [doubting whether the lesser included
offenses implication the federal Constitution despite being derived from state
law].) Assuming without deciding that the Chapman standard applies, we
would find the error here was harmless beyond a reasonable doubt. (See
Chapman, supra, 386 U.S. at p. 24.)
The jury was instructed on perfect and imperfect self-defense and
second degree murder, but found Duran guilty of first degree murder. Thus,
the verdict suggests the members of the jury did not believe Duran’s
assertion that he was acting out of fear when he attacked Pierro with the
hammer, regardless of whether that fear was rational. Duran contends, even
if the jury concluded Duran did not believe he needed to strike Pierro with
the hammer to defend himself—regardless of whether that belief was
reasonable—they still could have concluded Pierro did so out of unconsidered
reaction to Pierro’s provocation. Again, though, there was no evidence Duran
was influenced by any emotion other than fear, and if the jury believed
Duran feared for his life, whether that belief was rational or not, there is no
apparent reason they would not have accepted that he also, whether
rationally or not, believed he needed to strike Pierro with the hammer in
order to escape the threat.
Duran asserts the evidence of first degree murder was weak because
there was no evidence of pre-conceived plot to kill Pierro, and that his weapon
of choice, the hammer, suggests a spontaneous reaction. As an initial matter,
it was not necessary for Duran to have plotted to kill Pierro prior to arriving
35
at his residence that day. It is well recognized that the intent to kill, even
when based on cold, calculated judgment, can develop in a brief interval.
(See People v. Solomon (2010) 49 Cal.4th 792, 812.) Regardless, there was
evidence Duran came to the house the weekend before the murder looking for
Pierro, and Daniel testified he was concerned enough by Duran’s words to
warn Pierro to be careful when he returned. The fact that the jury convicted
Duran of first degree murder, instead of second, indicates they concluded the
murder was, in fact, premeditated and deliberate, as opposed to irrational or
without due deliberation. (See Millbrook, supra, 222 Cal.App.4th at p. 1138
[a jury finding that an attempted murder was willful, premeditated, and
deliberate “would have been ‘manifestly inconsistent with having acted under
the heat of passion’ ”].)
3. Unanimity
Finally, Duran contends the trial court improperly instructed the jury
on the need for unanimity in the verdict.
Specifically, the court modified CALCRIM No. 640 to include the
following language from CALJIC 8.74: “Before you may return a verdict in
this case, you must agree unanimously not only as to whether the defendant
is guilty or not guilty, but also, if you should find him guilty of an unlawful
killing, you must agree unanimously as to whether he is guilty of murder of
the first degree or murder of the second degree or voluntary manslaughter.
However, you are not required to agree unanimously on the theory of guilt.”
Duran contends this indicated to the jurors that they did not need to agree
unanimously whether the murder was first or second degree murder.
36
Again, defense counsel did not object or seek any modification to the
instruction, such that the issue was likely forfeited, but we nevertheless
consider the merits since Duran also raises an ineffective assistance of
counsel argument.
As an initial matter, the instruction provided by the court was legally
accurate. The California Supreme Court has expressly confirmed a jury must
unanimously agree only on the degree of murder, but not the theory under
which murder was proven. (People v. Taylor (2010) 48 Cal.4th 574, 626;
People v. Jennings (2010) 50 Cal.4th 616, 639 [“ ‘A jury may convict a
defendant of first degree murder, however, without making a unanimous
choice of one or more of several theories proposed by the prosecution’ ”].)
Further, the court in People v. Webb (2018) 25 Cal.App.5th 901 directly
addressed a similar contention. There, the jury was instructed with a
version of CALCRIM No. 548 that stated:
“The defendant has . . . been prosecuted for murder under two
theories: (1) malice aforethought, and (2) felony murder. [¶] Each
theory of murder has different requirements, and I will instruct
you on both. [¶] You may not find the defendant guilty of murder
unless all of you agree that the People have proved that the
defendant committed murder under at least one of these theories.
You do not all need to agree on the same theory, but you must
unanimously agree whether the murder is in the first or second
degree.” (Id. at p. 906.)
The appellate court noted the instruction expressly stated unanimity
was required as to “degree” but found there was some ambiguity because the
instruction also referred to malice aforethought and felony murder as
different “theories.” (Webb, supra, 25 Cal.App.5th at p. 907.) Here, as in
Webb, the instruction explicitly stated, “you must agree unanimously as to
whether he is guilty of murder of the first degree or murder of the second
degree or voluntary manslaughter.” However, as felony murder was not at
37
issue in the case, there was no similar reference to malice aforethought and
felony murder as different “theor[ies].” Accordingly, there was no ambiguity
in the instruction, and we presume the jurors understood they had to
unanimously agree on the degree, as instructed. (Ibid.; see also People v.
Lopez, supra, 198 Cal.App.4th at p. 708 [“Instructions should be interpreted,
if possible, to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation”].)
In addition, the jury was also instructed on first degree and second
degree murder, and those instructions stated, “The People have the burden of
proving beyond a reasonable doubt that the killing was first degree murder
rather than a lesser crime. If the People have not met this burden, you must
find the defendant not guilty of first degree murder and the murder is second
degree murder.” Given the totality of instructions, there is no reasonable
possibility that the members of the jury did not understand that they had to
unanimously decide whether Duran was guilty of first degree, as opposed to
second degree, murder.
Further, even if there were some ambiguity in the instruction, we
would conclude any error was harmless. Duran complains that the jurors
were only given a single verdict form that set the degree as first degree
murder and asserts this compounded the error. To the contrary, the court
also explicitly instructed them, “If all of you cannot agree whether the
defendant is guilty of first degree murder, inform me that you cannot reach
an agreement and do not complete and sign any verdict form on that count.”
[emphasis added.] Thus, the trial court once again made clear that the jury
had to unanimously agree Duran was guilty of first degree murder. The fact
that the jury did not inform the court that they could not reach an agreement
38
on that charge indicates that they did, in fact, unanimously agree that Duran
was guilty of murder in the first degree.
III. Prosecutorial Misconduct
Next, Duran contends the prosecutor committed prejudicial misconduct
during closing arguments by misstating the burden of proof, disparaging
defense counsel, and misstating the evidence.
A. Relevant Legal Principles and Standard of Review
Prosecutors have wide latitude to argue their case vigorously during
closing arguments but may not use deceptive or reprehensible methods to
persuade the jury. (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill); People v.
Tully (2012) 54 Cal.4th 952, 1009–1010 (Tully).) A prosecutor's conduct
violates the federal constitution and requires reversal when it infects the trial
with such unfairness as to deny the defendant due process. (People v. Powell
(2018) 6 Cal.5th 136, 172.) Further, even if the conduct does not meet the
federal standard, it may still require reversal under California state law if it
employs deceptive or reprehensible methods to attempt to persuade the jury.
(Ibid.)
However, " '[t]o 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.' " (People v. Dykes (2009) 46 Cal.4th 731, 772.) When
reviewing the prosecutor's statements on appeal, we do not infer that the jury
drew the most damaging meaning possible but consider how a reasonable
juror would, or could, have understood the allegedly improper comments in
the context of the entire argument. (Ibid.; People v. Benson (1990) 52 Cal.3d
754, 793.)
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B. Forfeiture
To preserve a claim of prosecutorial misconduct for appeal, defense
counsel must make a timely objection and request an admonition to cure any
harm in order. (People v. Riggs (2008) 44 Cal.4th 248, 298.) Here, it is
undisputed that defense counsel did not object or request any admonition to
the jury. Accordingly, Duran has forfeited his arguments regarding
prosecutorial misconduct on appeal. However, because Duran asserts his
counsel provided ineffective assistance of counsel by failing to object, we will
address the merits of his prosecutorial misconduct claim in the context of
determining whether his counsel erred by failing to object. (See People v.
Crittenden (1994) 9 Cal.4th 83, 146 [court may exercise discretion to consider
forfeited claims to forestall ineffective assistance of counsel arguments].)
C. The Prosecutor’s Comments Do Not Arise to the Level of Misconduct
1. Burden of Proof
Duran first asserts the prosecutor committed misconduct by misstating
CALCRIM No. 224 and effectively lowering the burden of proof.
The trial court instructed the jury with CALCRIM No. 224, which
states:
“Before you may rely on circumstantial evidence to conclude that
a fact necessary to find the defendant guilty has been proved, you
must be convinced that the People have proved each fact
essential to that conclusion beyond a reasonable doubt.
“Also, before you may rely on circumstantial evidence to find the
defendant guilty, you must be convinced that the only reasonable
conclusion supported by the circumstantial evidence ·is that the
defendant is guilty. If you can draw two or more reasonable
conclusions from the circumstantial evidence, and one of those
reasonable conclusions points to innocence and another to guilt,
you must accept the one that points to innocence. However, when
considering circumstantial evidence, you must accept only
reasonable conclusions and reject any that are unreasonable.”
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The prosecutor discussed this instruction, and the use of circumstantial
evidence more generally during closing arguments, and stated:
“Circumstantial evidence, if you recall, are facts from which you
may logically and reasonably conclude the truth of the fact in
question. It’s making those logical inferences from the evidence
before you and comparing it to the testimony, to see what really
happened. You can only accept reasonable conclusions.
“I spent a lot of time on this in voir dire because this is extremely
important. You cannot accept unreasonable conclusions and you
cannot speculate. So you can’t wonder about the mystery man
that there’s no evidence of. You can’t wonder about things that
may or may not possibly be. You have to look at the evidence
before you and, again, not speculate.
“The same applies for reasonable doubt. Reasonable doubt is
similar to circumstantial evidence, where you make reasonable
inferences. You look at all the evidence before you. You don’t
look at each piece individually. You look at the totality, the
whole picture and you make these reasonable conclusions. And
at the end of it, do you have an abiding conviction about what
happened? Again, you need not eliminate all possible doubt, and
you do not speculate.”
Duran argues the prosecutor improperly conflated reasonable doubt
and circumstantial evidence and misled the jury to believe they could convict
based on “reasonable inferences” and “conclusions.” We disagree. When read
in context, and along with the instruction provided by the court, a reasonable
juror would understand that the prosecutor was simply explaining that they
could not rely on unreasonable inferences that did not make sense when
considering the totality of evidence to overcome reasonable doubt. Moreover,
the prosecutor ended the discussion by telling the jury they must have an
abiding conviction, which is consistent with the proof beyond a reasonable
doubt standard.
41
Duran asserts the prosecutor’s statement was similar to the flawed
analogy presented by the prosecutor in People v. Centeno (2014) 60 Cal.4th
659 (Centeno). In Centeno, the prosecutor showed the jury a map of
California with multiple inaccuracies but pointed out that, despite the
obvious errors, there was no reasonable doubt that the state on the map was
California. (Id. at p. 665.) She then told the jury that they could, similarly,
find the defendant guilty even if there was missing or inaccurate information,
and that they should reject any possible but unreasonable alternatives and
make a reasonable decision based on the totality of the evidence. (Id. at
pp. 665–666.) On appeal, the California Supreme Court concluded the use of
the map constituted prejudicial misconduct, in part because the prosecutor
misstated the burden of proof by creating "the impression that so long as [the
prosecutor's] interpretation of the evidence was reasonable, the People had
met their burden." (Id. at p. 672.)
Here, the prosecutor was essentially making the opposite argument,
pointing out that the jury could not find reasonable doubt based on
unreasonable inferences from limited pieces of circumstantial evidence. This
was permissible argument. (Centeno, supra, 60 Cal.4th at p. 672 ["It is
permissible to argue that the jury may reject impossible or unreasonable
interpretations of the evidence and to so characterize a defense theory."].)
Given the totality of the instructions to the jury and the prosecutor’s
argument, we do not believe a reasonable juror was misled regarding the
requisite proof beyond a reasonable doubt burden.
2. Prosecutor’s Commentary on Evidence of Pierro’s Character
As discussed, Pierro’s character and alleged propensity for violence was
a central issue throughout the trial. During closing argument, the prosecutor
suggested the defense attempted to “dehumanize” Pierro and stated:
42
“When Mr. Crawford got up in his opening statement, he made
Mr. Pierro sound like a monster; described an incident to where
he almost pushed him into—pushed a gentlemen [sic] into an
electrical box, almost killing him. You heard from Jeremy [C.].
He shoved him aside because he didn’t like the work he was
doing. He didn’t try to hurt him. You heard no evidence from
anyone, other than Mr. Duran, about Mr. Pierro being this
terrible, awful human being.
“So why did it come in? So that you wouldn’t care about him
when he died. Well, Mr. Pierro was a human being, and nothing
that he did in his past warranted what happened to him.”
Duran contends this line or argument was improper for several
reasons. First, he asserts the prosecutor disparaged defense counsel by
asserting the defense improperly characterized Pierro as a bad person. To
the contrary, although the prosecutor was critical of the theory presented by
the defense, nothing in the prosecutor’s argument was disparaging of defense
counsel. The prosecutor did not accuse defense counsel of lying or attempting
to deceive the jury. (Compare People v. Young, supra, 34 Cal.4th at p. 1193
[accusing counsel of lying to jurors]; People v. Cummings (1993) 4 Cal.4th
1233, 1302 [accusing counsel of deceiving jurors], abrogated on other grounds
in People v. Merritt (2017) 2 Cal.5th 819, 831.) Statements that attack a
defense theory, as opposed to defense counsel, are permissible. (People v.
Redd (2010) 48 Cal.4th 691, 749 [“The prosecutor's remarks, however,
attacked the defense theory, not defense counsel's integrity, and did not
constitute denigration of counsel.”].)
Next, Duran contends the argument was improper because it took
unfair advantage of rulings by the trial court excluding additional character
evidence regarding Pierro, and because it unfairly appealed to the jurors’
passions. Again, we disagree. As discussed, ante, in section I., the trial court
did allow the defense to present relevant, admissible evidence of Pierro’s
43
propensity for violence. Specifically, with respect to the electrical box
incident, to which counsel was referring, Jeremy initially suggested Pierro
shoved him into the electrical box but, on cross-examination, conceded Pierro
actually shoved him to the side. The prosecutor was merely pointing out that
the evidence suggested Pierro was not as violent as the defense claimed, and
that he did not do anything that warranted the attack. There was nothing
improper about that argument. (See People v. Seumanu (2015) 61 Cal.4th
1293, 1343 [“fair comment on the evidence and did not suggest ‘that emotion
may reign over reason’ or invite ‘an irrational, purely subjective response’ ”].)
Finally, Duran contends the argument improperly misstated the
evidence because there was, in fact, additional evidence regarding Pierro’s
propensity for violence. As an initial matter, defense counsel was certainly
permitted to argue the same during closing arguments and the jury was
capable of weighing the evidence and the related arguments. Regardless,
evidence of an individual’s propensity for violence is a distinct subset of
character evidence and the exception in Evidence Code section 1103 does not
permit the defense to present general character evidence. Thus, to the extent
the defense suggested there was evidence Pierro was an “awful or terrible
person,” that argument was arguably improper, and, in any event, the
prosecutor was certainly within her right to argue the opposite. In doing so,
the prosecutor was entitled to assert the evidence that was presented was not
sufficient to establish Pierro was a “terrible, awful human being” or that he
had a propensity for violence.
3. Assertion Pierro Was Hit on the Back of the Head
Duran also contends the prosecutor misstated evidence by stating the
“first blows were to the back of [Pierro’s] head,” despite the trial court
previously pointing out the evidence indicated the blows were to the top of
44
Pierro’s head. To the contrary, there was evidence the bloodstain on the
inside of the hat was behind the button on top and, after a dispute between
counsel regarding whether the evidence indicated Pierro was hit on the top of
the head or the “top rear,” the court stated: “That’s the [prosecutor’s]
interpretation. Jurors, you heard the testimony. Use your own
interpretation of the evidence.” Accordingly, the prosecutor was entitled to
argue that Pierro was hit on the “back” as opposed to “top” of his head, and it
was up to the jurors to consider the totality of evidence and to reach a
conclusion regarding the alleged fact.
4. Use of “Honestly” Regarding Imperfect Self-Defense
Finally, Duran contends the prosecutor committed misconduct by using
the word “honestly” in the following explanation of imperfect self-defense:
“So imperfect self-defense: Instead of reasonably believed, it’s that the
defendant honestly and actually believed that he was in imminent danger of
being killed, and that instead of reasonably believing that he needed to use
immediate force, that he honestly and actually believed that he needed to use
immediate force and one of those beliefs was unreasonable.”
The words “honest” and “actual” have long been used interchangeably
to describe the subjective belief element of imperfect self-defense. (In re
Christian S., supra, 7 Cal.4th at p. 773.) The term “actual” is now preferred,
and used in CALCRIM No. 571, to avoid “the confusing suggestion inherent
in the phrase ‘honest belief’ that a person could have a ‘dishonest belief,’ i.e.,
that a person could believe something he does not believe.” (In re Christian
S., at p. 773.) However, here, the jury was also instructed with CALCRIM
No. 571, and there was nothing in the prosecutor’s argument that suggested
Duran’s beliefs were somehow “actual” but not “honest.” Thus, the
prosecutor’s argument was appropriate and, in any event, we find it
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extremely unlikely that the prosecutor’s brief use of the phrase “honestly and
actually” confused the jurors.
IV. Ineffective Assistance of Counsel
Duran asserts his trial counsel provided ineffective assistance of
counsel by failing to request certain jury instructions and failing to object to
the alleged prosecutorial misconduct.
“Under both the Sixth Amendment to the United States Constitution
and article I, section 15, of the California Constitution, a criminal defendant
has the right to the assistance of counsel.” (People v. Ledesma (1987) 43
Cal.3d 171, 215.) A defendant claiming ineffective assistance of counsel has
the burden to show: (1) counsel's performance was deficient, falling below an
objective standard of reasonableness under prevailing professional norms;
and (2) the deficient performance resulted in prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.)
Prejudice is shown when “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p.
694.) Accordingly, we will reverse a conviction on appeal based on ineffective
assistance of counsel only where “the record on appeal demonstrates there
could be no rational tactical purpose for counsel's omissions.” (People v.
Lucas (1995) 12 Cal.4th 415, 442; see also People v. Anderson (2001) 25
Cal.4th 543, 569.)
Here, the record is insufficient to establish Duran received ineffective
assistance of counsel. First, Duran asserts his counsel was ineffective to the
extent he failed to request the jury instructions or failed to object to the
prosecutorial misconduct discussed, ante, in sections II and III. We have
46
addressed the merits of each of these asserted errors, regardless of any
alleged forfeiture, and have concluded in each instance that there was no
prejudicial error. Accordingly, Duran cannot meet his burden under
Strickland to establish the result of the proceedings would have been
different absent any such error on behalf of his counsel. (See Strickland,
supra, 466 U.S. at p. 694.)
In addition, Duran asserts his counsel should have requested a limiting
instruction that the jury should consider the evidence regarding Duran’s
uncharged conduct only in evaluating Duran’s self-defense claim. He asserts
it was improper for the jurors to use that evidence in evaluating the
attempted carjacking charge, and that there was no tactical reason for his
counsel not to request such an instruction. We disagree.
As an initial matter, Duran does not identify the specific language of
the instruction he asserts his counsel should have requested, making it
difficult to evaluate the necessity of any such instruction. Regardless, the
jury was instructed evidence of prior felonies or other misconduct could be
considered only in evaluating Duran’s credibility. Thus, there is no reason to
believe the jury considered the evidence in an improper manner and, to the
contrary, any further instruction on the issue may have served only to
highlight the connection between the murder, Duran’s violent nature, and the
attempted carjacking. (See In re Hill (2011) 198 Cal.App.4th 1008, 1016
[counsel’s tactical decisions entitled to deference].)
Accordingly, Duran has not established a claim for ineffective
assistance of counsel.
V. Cumulative Error
Duran asserts, even if no single error standing alone is sufficient to
require reversal, the cumulative effect of the alleged errors does require
47
reversal. The cumulative error doctrine applies when the "the cumulative
effect of the errors . . . makes[s] it 'reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of
the error[s].' " (Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 141; see
also Hill, supra, 17 Cal.4th at p. 847 [concluding sheer number of errors was
so troubling as to require reversal].) Here, we have found no errors and,
thus, there can be no cumulative error. Further, for the reasons already
discussed herein, we would conclude, even if there were any individual
errors, those errors were not prejudicial, individually or as a result of the
cumulative effect.
VI. Sealed Transcript
Finally, Duran asks us to independently review a sealed pretrial
transcript regarding the admissibility of certain evidence.
Several months before trial, the prosecutor requested that the trial
court review certain evidence that had not been provided to Duran or his
counsel to confirm the evidence was properly withheld pursuant to Penal
Code section 1054.7. A defendant typically bears the burden to provide a
record on appeal that affirmatively establishes error (People v. Sullivan
(2007) 151 Cal.App.4th 524, 549), but in cases such as this, where the records
are sealed, the defendant is not able to review the records to analyze or
establish the existence of error. Accordingly, we have independently
reviewed the sealed proceedings. We find no error therein.
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DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
IRION, J.
DO, J.
49