Filed 12/16/14 P. v. Torres CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,                                   A136219

v.                                                                   (Solano County
ADRIAN TORRES,                                                       Super. Ct. No. FCR274440)
         Defendant and Appellant.

THE PEOPLE,
     Plaintiff and Respondent,                                       A136232
v.
RUDOLFO RAYMOND ORTEGA, JR.,                                         (Solano County
     Defendant and Appellant.                                        Super. Ct. No. FCR274439)

         This is a criminal appeal following a jury trial in which Adrian Torres (Torres) and
Rudolfo Raymond Ortega, Jr., (Ortega) (together, appellants) were each found guilty of
second degree murder, attempted murder, and assault with a firearm. On appeal, they
contend: (1) the trial court violated Ortega’s constitutional rights by allowing the
prosecutor to question him—and comment—on his silence and failure to claim self-
defense before trial; (2) the prosecutor committed misconduct by questioning Ortega and
commenting on his failure to claim self-defense, by disparaging defense counsel, and by
arguing in closing that what Torres told police upon arrest was inconsistent with his
testimony at trial; (3) the trial court erred by excluding evidence that one of the victims
who survived was subsequently found in possession of a firearm; and (4) Torres’s



                                                             1
sentence of 86 years 4 months constitutes cruel and unusual punishment. We reject the
contentions and affirm the judgment.
                         FACTUAL AND PROCEDURAL BACKGROUND
       On October 13, 2010, an information was filed alleging that on or about March 5,
2010, appellants and Jesus Antonio Vidrio (Vidrio) committed: (1) murder (Pen. Code1,
§ 187, subd. (a), count 1); attempted murder (§§ 664/187, subd. (a), count 2); and assault
with a semiautomatic firearm (§ 245, subd. (b), count 3). The information alleged as to
counts one and two that appellants and Vidrio personally and intentionally discharged a
firearm that proximately caused great bodily injury or death (§ 12022.53, subd. (d)) and
that the offenses were committed for the benefit—and at the direction—of a criminal
street gang (§ 186.22, subd. (b)(1)). The information charged as to count three that
appellants personally used a firearm (§§ 12022.5, subds. (a), (d), 1192.7, subd. (c)). The
fourth count charged Vidrio alone with evading an officer with willful disregard while
driving (Veh. Code, § 2800.2, subd. (a)), and included a criminal street gang allegation
(§ 186.22, subd. (b)(1)).
       After a jury trial, the jury acquitted appellants of first degree murder and convicted
them of second degree murder, attempted murder, and assault with a firearm. The jury
found true the weapons allegations in counts one to three but found the gang allegations
untrue. Vidrio was acquitted of all crimes in counts one to three but was convicted in
count four for evading an officer with willful disregard while driving. Vidrio was
sentenced to the upper term of three years. The trial court sentenced Ortega to a total
determinate term of 21 years and four months and a total indeterminate term of 65 years
to life. In count one, Ortega received 15 years to life for the murder plus 25 years to life
for the gun use. In count two, he received two years and four months (one-third the
middle term) for the attempted murder and 25 years to life for the gun use. In count
three, he received the upper term of nine years plus 10 years for the gun use. He received



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


                                                2
total credits of 881 days. The trial court imposed the same sentence on Torres and
awarded him total credits of 882 days.
        The information was based on an incident that occurred on March 5, 2010. That
afternoon, then-17-year-old Humberto “Beto” Padilla (Padilla) and his mother’s
boyfriend, Alton Johnson, went to Alex Guizar’s grandmother’s house “down the street”
so that Padilla and Guizar “could straighten out whatever differences they were having in
school.” Padilla did not go there intending to fight Guizar and Johnson did not think
there would be a fight. Johnson was a longtime friend of Guizar’s family and had known
Guizar for Guizar’s entire life. Johnson accompanied Padilla to the grandmother’s house
“[j]ust to make sure that everything goes okay.” At some point, the discussion between
Padilla and Guizar turned into a one-on-one fist fight between them that “looked even” to
Johnson. Padilla and Johnson returned home, and later that day, Padilla went out. Some
testimony was presented that Padilla was a Norteño gang associate, and that the fight was
over Guizar having contact with relatives who were Sureños.2
        At about 6:30 p.m. that evening, Padilla was with K.W. and R.E.,3 standing
outside of a friend’s house, waiting for the friend to finish showering and get ready so
they could all go out together. As they waited, they had a discussion about the fight
Padilla had with Guizar earlier that day. Padilla was upset because he had called K.W.
and a friend to come and back him up in the fight, but the two had failed to get there in
time.
        K.W. then saw two men walk by. The individuals, who were wearing black
clothing and beanies, seemed friendly, but Padilla and R.E. appeared to be suspicious of
them because they did not recognize them. R.E. said, “Yo, who’s that? We don’t know
them,” or may have possibly said, “They’re not from here.” As the two men approached,


        2
          Although a great deal of evidence was presented at trial relating to the gang
charges, we omit most of that evidence from our facts because the jury found the gang
allegations untrue.
        3
          We will identify the living victims who were minors by their initials to protect
their anonymity.


                                              3
Padilla and R.E., who had been sitting down, got up to greet them. The bigger of the two
men4 asked, “Hey, you all Norte?” or “you all north bay?”5 R.E. replied, “Yeah, Rocky
Hill Posse”—a reference K.H. did not understand, but was a reference to the Norteño
gang—and then “dapped” the man’s hand as a form of handshake. At that point, the two
men stepped back, each pulled out a handgun, and began firing at Padilla, R.E., and K.W.
       When asked whether he saw Padilla quickly pull his hand out of his pocket, K.H.
testified that he “might have,” but that he did not see this occur. K.H. testified that for
the most part the shooters were aiming at Padilla, although some shots hit the side of a
house and one hit R.E. Padilla was shot in the upper left side of his back and his right
buttock, and died at the hospital from gunshot wounds. Both bullets exited the body and
it was not possible to tell the caliber of the bullets that caused the wounds. R.E., who was
15 years old at the time, was shot in the buttock. R.E. suffered a puncture wound in his
pelvis and a wound on his buttock, consistent with gunshot wounds. He was hospitalized
for five days and underwent surgery in which part of his bowel was removed and a hole
in his ureter, a tube connecting the kidney to the bladder, was repaired.
       K.H. testified that he was not armed that day and did not see either Padilla or R.E.
with any weapons. He testified that he ran from the scene with R.E. after the shooting
and helped him to R.E.’s grandmother’s house. At that point, R.E. said, “I’ll be all right.
Get out of here.” As K.W. went back toward the scene of the shooting to see how Padilla
was doing, he saw that police and medical personnel had already arrived. K.W. went
home because he did not want to be involved with the police. He was also worried the
shooters might have accomplices in the area, and he was afraid of having to become a
witness in the case. At trial, K.W. identified Torres and Vidrio as the shooters. He

       4
          When K.H. spoke with police, he stated that the shorter of the two men spoke.
Police described Ortega as 5’6” tall, and Torres as 5’9” tall and heavier.
        5
          K.W. told police that the man asked, “you all north bay?” At trial, K.W.
explained that he did not know what “Norte” meant at the time, as he was relatively new
to the area and uninformed about gangs. He learned after the shooting that the incident
may have been gang related and that R.E. was a Norteño. K.W. testified that Padilla was
not a Norteño.


                                              4
acknowledged he did not identify either of them when asked by police shortly after the
incident. He testified he was about 85 percent certain that Torres and Vidrio were the
shooters.
       A resident of the Rocky Hill neighborhood testified that at about 7:40 p.m. on
March 5, 2010, he was at home playing with his children when he heard gunshots and
saw two men unloading two guns. The resident ran after the men as they ran up a hill and
got into a white car with tinted windows that was parked almost a block away from where
the men had been shooting. Later, the police showed the resident a car, which the
resident positively identified as the white car that the men jumped into at the scene of the
shooting.
       Vacaville Police Officer Stuart Tan, who was on duty in an undercover capacity
on the evening of March 5, 2010, testified that he heard 10 to 15 gunshots from two
different guns as he walked to his unmarked vehicle. He then heard a dispatch call that
there had been a shooting, and that the suspect vehicle was a white Chevy Impala (the
Impala) with tinted windows. Tan drove to an onramp to Highway 80 looking for a car
that matched the description. When he saw the Impala go by in the fast lane of the
freeway, Tan merged onto the freeway to catch up to it, get a license plate, and see who
was inside. Tan saw three individuals in the car. Tan’s car was not equipped with
emergency lights or equipment so he was unable to pull the Impala over, but he watched
as marked patrol vehicles caught up. The patrol vehicles and the Impala all exited the
freeway at the Airbase Parkway exit. The Impala drove at least 45 miles per hour
through a residential neighborhood before crashing into a small retaining wall at the side
of a house.
       The occupants ran off. The rear-seat passenger, who was identified as Torres, did
not obey commands to stop and continued to fight after police caught up with him, but
was eventually subdued and handcuffed. A loaded magazine was found in the Impala
where Torres had been sitting; no weapons were found on him. The front seat passenger,
identified as Ortega, was found in a garbage can with the assistance of a canine. Next to



                                             5
him in the garbage can was a black hooded sweatshirt. The driver of the Impala,
identified as Vidrio, was also stopped and a search of his person revealed no weapons.
       Police searched the Impala and found a black wool ski mask in the passenger door,
two sets of gloves and two cell phones, and a magazine for a .9mm firearm with four
bullets in it. Police found a magazine for a .9mm Taurus handgun with 12 rounds in it in
the front yard where the Impala crashed.
       Vacaville police officers testified that bullet casings were scattered along the
sidewalk at the scene of the shootings—.9mm and .45 caliber casings from two different
semi-automatic weapons. An expert in ballistics and crime scene analysis testified that
the .9mm cartridge casings were fired from the Taurus .9mm semi-automatic pistol that
was recovered. No firearm was available with which to compare the .45 caliber bullets
that had been fired. An expert in gunshot residue received samples from the two sets of
gloves that were found in the Impala and concluded there were particles of gunshot
residue on both sets. DNA evidence established that Torres and Ortega had worn the
gloves.
       Ortega, who was 21 years old at the time of the incident, testified that he joined a
Sureño gang when he was 13 years old and in foster care, and that his nickname was
“Drifter” because he was always in a different home. In March 2010, he was living with
Torres because he had nowhere else to live. Torres was not a gang member. Ortega
testified that on March 5, 2010, he received a call from his cousin, Guizar, who was
crying and said he had been beaten up and jumped by Norteños. Guizar told Ortega that
he was being threatened by Norteños and that he wanted Ortega to come and get him out
of the Rocky Hill neighborhood. After receiving the call, Ortega called Vidrio and told
him to come pick him up. He also asked Torres to join him and Vidrio. Ortega testified
that he asked Torres to come along because Torres was his friend, and also because he
thought that taking a non-gang member with him would help prevent the situation from
“escalat[ing]” into a “Sureño-Norteño thing.” Ortega brought a gun with him because he
always carried a gun for protection. He had no intentions on using it, but he “felt like
[his] life [was] in danger.”


                                              6
       Ortega testified that he told Vidrio how to get to Rocky Hill, and where to park the
car. Ortega sent a text message to Guizar asking him where “they” were. He explained
at trial that the “they” in the text message referred to the Norteños who were threatening
Guizar; he wanted to know where they were so that he could avoid them. When asked,
“So . . . you’re going to look for your cousin. Why didn’t you ask your cousin in these
text messages where he was at?”, Ortega responded, “Because I thought I knew where he
lived, because I kind of knew where he lived at, so I was just going off of what I was
remembering. . . .” Ortega testified that he and Torres got out of the car to look for
Guizar. They walked to the bottom of a hill and began to walk back toward where Vidrio
had parked the car, when he heard someone yell, “[w]ho the fuck are you?” Knowing he
was in enemy territory, Ortega put his hooded sweatshirt on so that the Sureño tattoos on
his neck would not be visible. He stepped back and answered, “[w]ho are you.”
       Ortega testified that the person doing the talking stood out to him and appeared to
be very aggressive. He answered Ortega’s question by saying, “Rocky Hill,” which
Ortega took as a challenge and a threat. Another one of the three individuals said “yeah.”
The person who said, “yeah” had his hand hidden, as if he were holding a gun, then made
a sudden move like he was pulling out a gun. Ortega was scared and shaken when he
saw this, and started shooting. Ortega testified, “I felt like I had to pull my gun before it
was pulled on me. So I felt like my life was in danger.” After emptying his gun, he ran
back up the hill to Vidrio’s car, got into the car, and told Vidrio to “go.” Ortega told
Vidrio that he thought he had “hit” someone because he saw someone fall and get back
up and run away after the shooting stopped. The police pursued him, Torres, and Vidrio,
and the chase came to an end when Vidrio’s car crashed. Ortega attempted to dispose of
the gun by throwing it away after the crash.
       Ortega initially told police he was not involved and did not know what anyone was
talking about. Then he said he did not know about the gun, even though he did. Later in
the interview, he started to talk about the phone call from Guizar and going to Vacaville.
He lied to police for most of the interview and failed to mention self-defense because he
lied about many things and did not know the law. He testified that he lied to get the


                                               7
interview over with, and that he kept changing the lie. When he told police that others
“banged on” him, he did not mention self-defense. He repeatedly tried to end the
interview. Ortega told his ex-girlfriend in a phone call that he need to pray to God for
what he had done.
       Torres called Dr. Robert Shomer as an expert in eyewitness identification.
Shomer testified that under stress, one’s process of perceiving and recording in memory
does not work as accurately as they do in calm situations. Beyond 24 hours, inaccuracy
in identification rises tremendously, and the presence of guns raises the stress level. He
testified that if there is a hostile interaction, “there’s a tremendous chance of
misperception and misinterpretation of what’s going on.”
       Torres, who was 20 years old at the time of the incident, also testified in his own
defense. He testified that he grew up in an area with gang members and had friends who
were Sureño or Norteño gang members, but that he had never been in a gang. In March
2010, Ortega was living in Torres’s home. Torres knew Ortega was a Sureño, but Torres
had never committed any crime with gang members, had never done gang graffiti, and
had never gone to gang functions. On March 5, 2010, Ortega asked Torres if he would
go with him to Vacaville to pick up his cousin, Guizar, who had been jumped. Torres did
not know Guizar but agreed to go. They got in Vidrio’s car and drove to Vacaville.
Torres was not familiar with the Rocky Hill neighborhood and did not think there would
be a fight or a confrontation.
       Ortega gave Vidrio directions and they drove around an apartment complex two or
three times without seeing anyone. Torres thought Ortega tried to call Guizar, but that he
could not reach him. Torres suggested they go home but Ortega told Vidrio to stop the
car, and Torres and Ortega got out of the car. They saw a group of people, and Torres
was a little scared and walked back a little bit. Someone asked, “Where the fuck are you
guys from?” Torres thought Ortega said, “Bay Area,” and that one of the others said,
“Rocky Hill Posse.” He also heard someone say “Yeah.”
       One of the men came toward them with his hand inside his sweater. He pulled his
hand out, and Torres thought he was going to pull out a gun. Torres turned his back and


                                               8
began to get ready to run. He heard a gunshot, pulled out his gun, and shot as he ran. He
testified he tried to shoot it in the air because “I didn’t want to hit nobody.”6 He thought
if he fired his gun, the others would get scared and stop firing. He ran to the car and
Vidrio drove off. Torres threw his gun out the window because he was scared and did
not want to get caught with it. He testified that he was carrying a gun that day for safety
because he had just been jumped, robbed at gunpoint, and shot at by gang members. He
identified the .9mm gun as his.
       Vidrio testified he met Ortega in middle school or high school and knew Ortega
was a Sureño. Vidrio had known Torres for three years; they would smoke marijuana
together. On the afternoon of March 5, 2010, he and Ortega made arrangements to go
smoke marijuana “on the freeway.” Vidrio drove to Torres’s place and picked Ortega
and Torres up. As Vidrio drove, Ortega told Vidrio to get off the freeway in Vacaville
and gave him directions. Vidrio was not a gang member and did not know what Ortega
and Torres were going to do. He did not see either Ortega or Torres with guns, and
neither was wearing gloves or a hood. Once they arrived in the location Ortega had
directed him to, Ortega and Torres left the car. As Vidrio was about to make a phone
call, he heard gunshots, and Ortega and Torres ran up to the car. Ortega said, “I got
somebody. I think I shot somebody,” and told Vidrio to “Go, go.” Vidrio saw Ortega
with a gun. Vidrio did not hear Torres say anything. When Vidrio heard sirens, he did
not pull over because Ortega had a gun and he was scared for his life. His car crashed
and he took off running but eventually surrendered.
       Michelle Vega, Ortega’s sister, told police that she received a phone call from
Ortega at about 7:04 p.m. on March 5, 2010. He appeared to be crying and upset, and she
could hear police sirens in the background. He said he was going away for a long time,
that it was “over” for him, and that he was going to prison. He also said the whole thing
was Guizar’s fault.

       6
        A police officer testified that a .9mm hole was found in the grill of a Ford
Expedition, and that if a .9mm bullet had been fired into the air, it would not have gone
into the vehicle’s grill.


                                              9
                                        DISCUSSION
                                  I. Constitutional Rights
                                      A. Background
       After his arrest, Ortega waived his rights under Miranda v. Arizona (1966)
384 U.S. 436 (Miranda) and was interviewed by police. At trial, Ortega testified, among
other things, that he shot the victims in self-defense. During cross-examination, the
prosecutor asked Ortega about statements he made during the police interview and asked,
“You haven’t told anyone until today that you were trying to defend yourself, correct?”
The trial court overruled an objection and Ortega responded, “Well, yes, because when I
said they were banging on me, that’s where that came in.” The prosecutor asked, “And
then you responded to say it was in an attempt to scare [the three individuals]?” Ortega
responded, “Yeah, because I’m not . . . a killer. I didn’t mean to kill nobody. So I wasn’t
trying to kill nobody. I was just trying to get out of there for my safety.”
       The prosecutor then asked, “And didn’t you think it was important, if you were
acting in self-defense, to tell the police the truth?” Ortega responded, “I was lying to
them about a whole bunch of different things . . . I didn’t know the law or nothing like
that. I knew what I acted on, but I didn’t elaborate on that. No I didn’t.” The prosecutor
asked, “Did you think to tell the police officers that were interviewing you that you were
acting in self-defense?” Ortega responded, “No.” The prosecutor asked, “And you never
said that it was in self-defense?”, and Ortega responded, “Well, I told them that they
banged on me, and that kind of went that way. I didn’t elaborate. He didn’t even ask me,
‘What do you mean by “banged on me”?’ He didn’t ask me what were they doing or
anything like that. So I didn’t know that, just by them doing that and the way I felt, that
that was self-defense.”
       In closing, the prosecutor argued, “So this picking up Alex [Guizar] story is a way
to get you to understand why they were in Norteño territory. It’s a lie. It’s a false
statement. It’s a way to make the evidence fit their story. Because they never once told
Sergeant Dye that—talking about Mr. Ortega, he never says, ‘Hey, I was just going over
there to pick up Alex.’ I asked him, he says, ‘Yeah, I was—I was tired of talking to those


                                             10
cops.’ Yeah, ‘Well, you never told them that it was self-defense either, did you?’ ‘No, I
was tired of talking to them.’ Well, you know what? If you were completely innocent of
this crime, because this is a self-defense crime, and you were just over there picking up
your cousin, minding your own business, that would be the first thing you would say.”
The trial court overruled Torres’s counsel’s objection that the argument was irrelevant.
The prosecutor continued: “And then I asked Mr. Ortega on the stand, ‘Did you ever tell
anyone, prior to this trial, that this was self-defense in law enforcement? Did you ever
tell one police officer that this was self-defense?’ ‘Nope. Huh-uh.’ ”
       Ortega’s counsel said in closing: “Ms. Ray [the prosecutor] said that if he was
acting in self-defense, why didn’t he tell . . . Detective Dye . . . when he was being
interrogated? And Mr. Ortega tried to explain that to you, about what was going through
his mind. And what we know is all of the events of that day . . . he’s being gang-banged
on, and then he sees this movement, and then he’s firing a gun, emptying his gun. He
gets into a high-speed chase. They crash. He runs. He hides in a garbage tote. It’s
kicked over. A dog, a canine grabs the top of his head . . . what it goes to is Mr. Ortega’s
state of mind that night when he talked to the police . . . [¶] . . . And he’s taken to the
hospital. Then he’s taken to be interrogated. All that is happening. And you heard that
he kept saying, ‘I wanted it to end. I said I didn’t want to talk any more. I put my shirt
over my head,’ and basically crawled inside of his shirt. He didn’t want to keep talking
to the police officer any more. He would say parts of it. He would say that they gang-
banged on him. . . .”
                                        B. Contention
                                           1. Doyle
       Ortega contends the trial court violated his constitutional rights by allowing the
prosecutor to question him—and argue—about his failure to claim self-defense before he
testified at trial. He relies on Doyle v. Ohio (1976) 426 U.S. 610, 619 [96 S.Ct. 2245]
(Doyle) in asserting that “it is fundamentally unfair to allow an arrested person’s silence
following the giving of his [Miranda rights] to be used to impeach an explanation
subsequently offered at trial.” Ortega acknowledges that his counsel did not object on


                                              11
this ground and asserts his counsel was ineffective for failing to do so. Assuming,
without deciding, there was no forfeiture, we conclude the contention fails on the merits.7
       In Doyle, the United States Supreme Court held it was a violation of due process
and fundamental fairness to use a defendant’s postarrest silence following Miranda
warnings to impeach the defendant’s trial testimony. (Doyle, supra, 426 U.S. at p. 619
[96 S.Ct. at pp. 2245–2246].) It is settled, however, that Doyle does not apply when a
defendant presents exculpatory testimony at trial that is inconsistent with a voluntary
post-Miranda statement. (Anderson v. Charles (1980) 447 U.S. 404 [100 S.Ct. 2180]
(Anderson).) In Anderson, a murder defendant waived his Miranda rights and told police
that he had stolen the victim’s car from a particular location. (Id. at p. 406 [100 S.Ct. at
pp. 2180–2181].) At trial, he testified that he stole the car from a different location, and
the prosecutor asked, “ ‘Don’t you think it’s rather odd that if it were the truth[,] that you
didn’t come forward and tell anybody at the time you were arrested, where you got the
car?’ ” (Ibid.)
       The United States Supreme Court held: “Doyle bars the use against a criminal
defendant of silence maintained after receipt of governmental assurances. But Doyle
does not apply to cross-examination that merely inquires into prior inconsistent
statements. Such questioning makes no unfair use of silence because a defendant who
voluntarily speaks after receiving Miranda warnings has not been induced to remain
silent. As to the subject matter of his statements, the defendant has not remained silent at
all.” (Anderson, supra, 447 U.S. at p. 408 [100 S.Ct. at p. 2182]; People v. Collins
(2010) 49 Cal.4th 175, 203; Wainwright v. Greenfield (1986) 474 U.S. 284, 292
[106 S.Ct. 634, 639] [“The point of the Doyle holding is that it is fundamentally unfair to
promise an arrested person that his silence will not be used against him and thereafter to
breach that promise by using the silence to impeach his trial testimony.”]; Fletcher v.


       7
        In light of our conclusion that the contention is without merit, we also conclude
that Ortega’s ineffective assistance of claim fails. (See Strickland v. Washington (1984)
466 U.S. 668, 687 [to prevail on a claim of ineffective assistance of counsel, a defendant
must show both defective performance and resultant prejudice].)


                                              12
Weir (1982) 455 U.S. 603, 603–604, 607 [102 S.Ct. 1309, 1310] [refusing to extend
Doyle to cover prosecutor’s comment on post-arrest silence by defendant in the presence
of the police when they had not given him Miranda warnings].)
       Similarly, here, Doyle does not apply because the prosecutor, through her
questioning and argument, was not referring to Ortega’s exercise of his right to remain
silent, but to the actual statements he made to police after waiving his Miranda rights—
statements the prosecutor argued were inconsistent with what he later testified to at trial.
In the same way the prosecutor in Anderson asked, “ ‘Don’t you think it’s rather odd that
if it were the truth[,] that you didn’t come forward and tell anybody at the time you were
arrested, where you got the car?’ ”, the prosecutor in the present case questioned why
Ortega did not tell police during the many hours of questioning that he shot in self-
defense, if that were truly what had occurred. (Anderson, supra, 447 U.S. at p. 406
[100 S.Ct. at pp. 2180–2181].) The prosecutor also pointed out that Ortega told police
that he shot the three individuals “in an attempt to scare them,” thereby trying to
demonstrate for the jury the dramatic inconsistency between what Ortega told police and
what he was telling the jury at trial.
       Ortega suggests that Anderson is inapplicable because in his case, “there is
evidence in the record that the police did not obey a defendant’s invocation of his right to
silence. . . .” It was, however, undisputed that Ortega waived his Miranda rights and
gave a statement to police. Although Ortega testified that he told police on multiple
occasions that he wished to stop talking, the defense never challenged the admissibility of
his statement on that ground, and therefore forfeited the claim. Moreover, the record on
appeal includes only references to isolated portions of Ortega’s interview; there is
nothing that shows what points, if any, during his statement Ortega allegedly invoked his
right to remain silent. Thus, even if we were to conclude that the issue is preserved for
appeal, we would be unable to conclude that Ortega unambiguously invoked his right to
silence during questioning. (See Berghuis v. Thompkins (2010) 507 U.S. 370, 381
[130 S.Ct. 2250, 2259–2260] [to cut off questioning by law enforcement officers, an
accused must unambiguously invoke his right to remain silent].)


                                             13
                  2. Sixth Amendment and Evidence Code Section 954
       Without much argument or citation to relevant authority, Ortega contends the
prosecutor’s questions and comments also violated his constitutional rights under the
Sixth Amendment and his statutory right under the Evidence Code to refuse to disclose a
confidential communication between himself and his counsel. Assuming there was no
forfeiture, we conclude the contention fails on the merits.
       As noted, the prosecutor asked Ortega, “You haven’t told anyone until today that
you were trying to defend yourself, correct?” Ortega’s claim on this issue is not entirely
clear, but it appears he is arguing that this question violated his rights because it forced
him into the unfair choice of either giving up his attorney-client privilege and revealing
what he told or did not tell counsel regarding self-defense, or falsely stating he had not
told anyone, if in fact he had told counsel. The record shows, however, that the
prosecutor asked this question in the midst of a series of questions relating to statements
Ortega made to police during the interview. For example, the prosecutor had just asked
Ortega about the various statements he had made to police, and had asked, “But you
didn’t say that you were trying to defend yourself, correct?” Ortega responded, “No, I
didn’t.” The jury therefore would have reasonably understood the prosecutor’s question
to be referring to Ortega’s failure to raise a self-defense theory during the police
interview. (See People v. Samayoa (1997) 15 Cal.4th 795, 841 [when evaluating
comments made by the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion].)
       Ortega’s response to the prosecutor’s question shows he also understood the
question as referring to statements he made during the police interview: “Well, yes,
because when I said they were banging on me, that’s where that came in.” The
prosecutor then asked, “you never said in your interview . . . that you had any reason to
shoot at the victims except for to scare them, correct?” Ortega responded, “Correct. But
when they started banging on me, that’s why I pulled out my gun, because I was trying to



                                              14
get out of there.” We conclude there was no violation of Ortega’s constitutional or
statutory rights.
                                    3. Harmless Error
       We further conclude that even if there was error relating to the prosecutor’s
questions or comments during closing argument, any error was harmless beyond a
reasonable doubt, because without any of the challenged questions or comments by the
prosecutor the record would have been no better for Ortega, and the jury’s verdicts would
have been no different. Without objection and before any of the questions or comments
Ortega now challenges occurred, the prosecutor asked him: “But you didn’t say that you
were trying to defend yourself, correct?” Ortega answered, “No, I didn’t.” That
interchange alone permitted the prosecutor to argue to the jury that it should discredit
Ortega’s testimony because he had not told his self-defense story to the police.
       Any error was also harmless because the evidence overwhelmingly refuted self-
defense regardless of Ortega’s statement to the police. There was evidence that Ortega,
armed with a shotgun, went to Rocky Hill in order to confront the Norteños who had
threatened his cousin. He testified that he went to Rocky Hill to pick up Guizar, but he
sent a text message to Guizar asking where “they,” i.e., the Norteños, were, not where
Guizar was. He engaged a driver for a quick getaway and brought a fellow gunman with
him. He wore nondescript clothing and covered his hands with gloves, and engaged the
victims by pretending to be Norteño. He opened fire in close range, emptying his gun.
He and Torres killed the one person in the area they had a reason to kill if they were
indeed on the retaliatory mission the evidence suggested—the person who had fought
with Ortega’s cousin that afternoon. After the shooting, Ortega spoke to both his sister
and an ex-girlfriend about the incident, but there was no evidence he mentioned self-
defense to either of them.
       Ortega asserts that the length of jury deliberations—six court days—indicated that
the case was a close one. Even if six days of jury deliberations after a two-week trial can
be considered lengthy, that does not show that the jury believed the self-defense claim
was plausible. The jury ultimately found against the prosecution on the questions of


                                             15
whether the murder and attempted murders were premeditated, whether Vidrio was an
accomplice, and whether the crimes were gang related. Accordingly, the lengthy jury
deliberations suggested that the jury struggled with those questions, not necessarily with
self-defense.
                                 II. Prosecutorial Misconduct
                       A. Ortega’s Claim of Prosecutorial Misconduct
          Ortega contends the prosecutor committed misconduct by questioning Ortega and
commenting on his failure to claim self-defense, and by disparaging defense counsel. We
reject the contention.
          The applicable federal and state standards regarding prosecutorial misconduct are
well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” (People v.
Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.)
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” (People v.
Espinoza, supra, 3 Cal.4th at p. 820.) As a general rule, a defendant may not complain
on appeal of prosecutorial misconduct unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety. (People v. Samayoa, supra, 15 Cal.4th at
p. 841.) In addition, when the claim focuses upon comments made by the prosecutor
before the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable fashion.
(Ibid.)
          In light of our conclusion that the prosecutor’s questioning and argument about
Ortega’s failure to claim self-defense before trial was not improper, we conclude those
acts by the prosecutor did not constitute misconduct. As to his claim that the prosecutor
improperly disparaged counsel, we find the contention is without merit. Ortega asserts


                                              16
the prosecutor “disparaged defense counsel” by arguing to the jury “that the defendants
had ‘two years’ to ‘backfill their story;’ ” and “ ‘two years to think about what they were
going to say . . . to look over the evidence and make decisions on what they were going to
tell you.’ ” Ortega argues that the prosecutor essentially told the jury that “appellant,
with the help of defense counsel, was fabricating evidence and suborning perjury,” since
defense counsel was “the only person who could provide appellant with the evidence”
and who “could ‘tell’ appellant what to say . . . .”
       Assuming there was no forfeiture, we conclude the contention lacks merit because
there is no reasonable likelihood that the jury misapplied the law due to the prosecutor’s
statements. (See People v. Samayoa, supra, 15 Cal.4th at p. 841.) [a prosecutor’s
comments before the jury do not rise to the level of misconduct absent a reasonable
likelihood that the jury “construed or applied any of the complained-of remarks in an
objectionable fashion”].) In People v. Zambrano (2007) 41 Cal.4th 1082, 1154,
disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at page 421,
footnote 22, the prosecutor called defense counsel’s argument “a ‘lawyer’s game’ and an
attempt to confuse the jury by taking the witness’s statement out of context.” The court
concluded the argument was permissible because it “was aimed solely at the persuasive
force of defense counsel’s closing argument[] and not at counsel personally.” (People v.
Zambrano, supra, 41 Cal.4th at p. 1155.)
       Similarly, here, the prosecutor did not attribute the argument she criticized to
defense counsel. “[A] court should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning or that a jury, sitting through
lengthy exhortation, will draw that meaning from the plethora of less damaging
interpretations.” (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.) The
prosecutor’s statement that the defendants had two years to contrive their stories implied
nothing more than that the jury should disbelieve the defendants because they had all the
time they needed to tailor their stories to the evidence against them. The argument
neither said nor implied anything about defense counsel’s role. There was no
misconduct.


                                              17
                     B. Torres’s Claim of Prosecutorial Misconduct
                                      1. Background
       During closing, the prosecution argued, “Let’s take some of the defense witnesses,
and we’re going to view all of them with the same critical eye. [¶] Who has a motive to
lie in this case? Who had the time to, quote, backfill their story, as Dr. Shomer told you.
Well, I don’t know. The defendants had two years to do that, because they surely didn’t
tell this version of the story that you heard to the police when they were interviewed on
the day of the crime. . . .” Torres’s counsel and Vidrio’s counsel each objected without
stating a reason, and the trial court overruled the objections. The trial court overruled
two additional objections from Vidrio’s counsel—“[m]isstates [sic] facts not in evidence”
and “[p]rosecutorial misconduct”—and denied a request from Vidrio’s counsel for a
limiting instruction. The prosecutor continued, “So you take into consideration who was
telling you the truth and who had motive to not tell you the truth. The defendants are the
only ones that had a motive to not tell you the truth. They’re on trial there. They had two
years to think about what they were going to say, two years to look over the evidence and
make decisions on what they were going to tell you.”
                                       2. Contention
       Torres contends that because no evidence was presented to the jury that he had
even spoken to police, the prosecutor committed misconduct by implying that he had told
a different story to police when he was interviewed on the day of the incident.8 He
argues that the prosecutor, by her statement, essentially, and improperly, “informed the
jurors that she had information undisclosed to them.” Assuming Torres did not forfeit
this contention by failing to object on the ground upon which he challenges the
statements on appeal, we conclude it fails on the merits.


       8
       According to the probation report, Torres initially waived his Miranda rights and
made a statement to police before he ended the interview by invoking his right to have a
lawyer present. In his statement to police, Torres said he did not know the co-defendants
and was merely hitchhiking to Fairfield. We do not find in the record any indication that
Torres’s statement was introduced into evidence.


                                             18
       As noted, “a court should not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a jury, sitting through lengthy
exhortation, will draw that meaning from the plethora of less damaging interpretations.”
(Donnelly v. DeChristoforo, supra, 416 U.S. at p. 647.) Here, the prosecutor’s
undifferentiated reference to “the defendants” was ambiguous. It could have meant two
of the defendants, or all three. The trial court properly instructed the jury to decide the
facts based only on the evidence, which the court defined to specifically exclude anything
the attorneys said in their closing arguments. Having heard only evidence of Ortega and
Vidrio being interviewed on the day of the crime, and having heard no evidence that
Torres was ever interviewed, a reasonable jury would have determined that the
prosecutor was referring only to Ortega and Vidrio, and not Torres.
       The record supports a conclusion that the jury would have been particularly likely
to interpret the prosecutor’s argument to refer only to Ortega and Vidrio because, after
arguing “the defendants” told the police a different story from what they said at trial, the
prosecutor explained, “Mr. Ortega never tells the police that he was acting in self
defense. [¶] Mr. Vidrio never tells the police that he’s just out for a ride . . . .” She made
no mention of Torres as having spoken to the police, thereby suggesting that it was
Ortega and Vidrio, and not Torres, to whom the prosecutor was referring when she said
“the defendants.” In addition, the trial court instructed in one of its jury instructions:
“You have heard evidence that defendants Rudolfo Ortega and Jesus Vidrio made
statements before trial. You may consider that evidence only against the defendant who
made the statement and not against any other defendant.” (Italics added.) Another jury
instruction stated in part: “If the defendants Rudolfo Ortega and/or Jesus Vidrio made a
false or misleading statement before this trial . . . knowing the statement was false or
intending to mislead, that conduct may show he was aware of his guilt of the crime and
you may consider it in determining his guilt. You may not consider the statement in
deciding any other defendant’s guilt . . . .” Those instructions also assisted the jury in
reasonably determining that the statements to which the prosecutor referred must have
been statements made by Ortega and Vidrio, and not Torres.


                                              19
       Moreover, any error was harmless under any standard because the evidence
refuted Torres’s claim of self-defense as overwhelmingly as it did Ortega’s. Torres
accompanied his housemate, a known Sureño gang member, to a Norteño area in
Vacaville, carrying a loaded gun, yet claimed he did not think there would be a fight or a
confrontation. He believed they were there merely to “pick up” Guizar, and that he did
not realize Ortega was armed. Torres testified that he began shooting only after he had
his back turned and heard a gunshot, and thought it was Padilla who was shooting. He
testified that he shot in the air, but there was evidence that multiple bullets from the gun
that he admitted he carried with him that day were found in areas, including the grill of a
car, that the bullets would not have gone into if they had been fired into the air. Given
these incongruities, and the overwhelming evidence against him, any error would have
been harmless beyond a reasonable doubt.
                                III. Exclusion of Evidence
       Both appellants contend the trial court prejudicially erred by excluding defense-
proffered evidence that R.E. possessed a gun on two dates after the incident occurred—
April 19, 2011 and January 1, 2012—and therefore “has the character of a gun carrying
gang member.”9 We reject the contention.
       Evidence Code section 1103, subdivision (a)(1), permits a defendant to “offer[]
evidence regarding the character or trait of a victim ‘to prove conduct of the victim in
conformity with the character or trait of character.’ ” (People v. Gutierrez (2009)
45 Cal.4th 789, 827.) Evidence Code section 352 permits a trial court to exclude
evidence that would confuse the issues at trial, unduly consume time, or be more
prejudicial than probative. An appellate court reviews such a ruling deferentially,



       9
          Although the trial court referred to its ruling as “tentative” and informed the
parties that it may revisit the issue at a later date depending on what facts were presented
at trial, there is nothing in the record indicating the court made any “final” ruling
regarding the admissibility of this evidence. We therefore consider the trial court’s
“tentative” decision excluding the evidence to be the court’s final determination on this
matter.


                                             20
overturning it only upon finding that the trial court abused its discretion. (See, e.g.,
People v. Cole (2004) 33 Cal.4th 1158, 1195.)
       We conclude there was no error because the proffered evidence was not relevant.
Appellants assert that the proffered evidence could have assisted the defense in
demonstrating that they believed that one of the three individuals—Padilla, K.H., or
R.E.—had a gun, and that they therefore reasonably acted in self-defense. Ortega relies
on People v. Shoemaker (1982) 135 Cal.App.3d 442, but that case refutes appellants’
claim. The court in that case stated, “Character at an earlier or later time than that of the
deed in question is relevant only on the assumption that it was substantially unchanged in
the meantime, i.e. the offer is really of character at one period to prove character at
another, and the real question is of relevancy of this evidence to prove character, not of
the character to prove the act.” (Id. at p. 447, italics added.) Here, the proffered evidence
showed at most that R.E. was “a gun carrying gang member” in 2011 and 2012, after the
charged crimes. R.E.’s father reported to probation after the incident, “even though I
didn’t lose my son, I lost my son,” referring to how R.E.’s personality, outlook on life,
and behavior, had changed after the incident in which he was shot and severely injured by
appellants, at least one of whom was a Sureño. The proffered evidence showed nothing
more than that R.E. had become “a gun carrying gang member” by 2011 and 2012, not
that he was more likely to have been one at the time of the shooting in 2010. In other
words, the evidence was irrelevant because the defense failed to show that R.E.’s
character was “substantially unchanged” after—or by—the shooting. (Id. at p. 445.)
       Even assuming the evidence had some relevance, we would conclude it was only
minimally relevant, and agree with the trial court that any probative value was far
outweighed by its potential for confusing the jury and consuming time as the parties
would have had to adjudicate the facts of the subsequent events. Accordingly, the trial
court did not abuse its discretion in excluding the evidence as substantially more
prejudicial than probative. (See Evid. Code, § 352.) Because there was no error under
state law, appellants’ constitutional claims also fail. (See People v. Linton (2013)



                                              21
56 Cal.4th 1146, 1202.) Finally, we conclude that any error was harmless because, as
stated above, there was overwhelming evidence that appellants did not act in self-defense.
                                   IV. Cumulative Error
       Both appellants contend there was cumulative error. In light of our conclusion
that there was no error, or that even if there was error, there was no prejudice, we
conclude there was no cumulative prejudicial error. (See Beardslee v. Woodford (9th Cir.
2004) 358 F.3d 560, 591 [“Each of these potential errors is harmless individually.
Although they carry slightly more weight cumulatively, the aggregate errors still fall
short of causing a substantial impact on the verdict or the denial of a fundamentally fair
trial”]; People v. Rountree (2013) 56 Cal.4th 823, 860 [no cumulative prejudice where
“there was no error to accumulate.”]; People v. Homick (2012) 55 Cal.4th 816, 875,
fn. 35 [rejecting a claim of cumulative prejudice by finding that “[t]he occasional
evidentiary error defendant points to could not have had a prejudicial impact sufficient to
require reversal”].)
                            V. Cruel and Unusual Punishment
       Torres challenges his sentence of 86 years and four months to life in prison on the
ground that it constitutes cruel and unusual punishment under the federal and state
constitutions. We reject the contention.
       When a defendant over the age of 18 commits murder, a term-of-years sentence
that is the functional equivalent of life without parole is not necessarily cruel and unusual
punishment under the federal constitution or cruel or unusual punishment under the state
one. (People v. Argeta (2012) 210 Cal.App.4th 1478, 1482.) “To determine whether a
sentence is cruel or unusual under the California Constitution as applied to a particular
defendant, a reviewing court must examine the circumstances of the offense, including
motive, the extent of the defendant’s involvement in the crime, the manner in which the
crime was committed, and the consequences of the defendant’s acts. The court must also
consider the personal characteristics of the defendant, including his or her age, prior
criminality, and mental capabilities. [Citation.] If the penalty imposed is “ ‘grossly
disproportionate to the defendant’s individual culpability’ ” [citation], so that the


                                             22
punishment “ ‘ “ ‘shocks the conscience and offends fundamental notions of human
dignity’ ” ’ ” [citation], the court must invalidate the sentence as unconstitutional.”
(People v. Lucero (2000) 23 Cal.4th 692, 739–740.)
       Torres notes only the factors arguably in his favor: that he was 20 years old at the
time of the crimes, did not intend to kill, and had no previous criminal convictions. He
fails to mention that there was ample evidence that the shootings were a planned,
surprised attack that killed one teenager, severely wounded another, and narrowly
avoided injuring a third. There was evidence that Torres fired his gun approximately ten
times, and not in the air as he claimed he had done. Given the severity of the injuries and
death he caused, and the further injuries he could have caused, a de facto sentence of life
without parole is not grossly disproportionate to his culpability. (See People v. Rhodes
(2005) 126 Cal.App.4th 1374, 1390–1391 [sentence of life without parole for second
degree murder of peace officer and injury to others not cruel and unusual punishment].)
                                        DISPOSITION
       The judgment is affirmed.

                                                  _________________________
                                                  McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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