Filed 3/26/14 P. v. Ibarra CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E056251

v.                                                                        (Super.Ct.No. SWF10000903)

ERIC IBARRA,                                                              OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Mark A. Mandio, Judge.

Affirmed.

         Law Offices of E. Thomas Dunn, Jr., and E. Thomas Dunn, Jr., for Defendant

and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Julie L. Garland, William M.

Wood and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       A jury found defendant and appellant Eric Ibarra guilty of one count of murder in

the first degree (Pen. Code, §187, subd. (a); Count 1),1 one count of attempted murder

(§§ 664, 187 subd. (a); Count 2), and one count of being a felon in possession of a

firearm (§ 12021, subd.(a); Count 4). Gang and firearm enhancements were found for

the murder charge. (§§ 186.22, subd. (b), 190.2, subd. (a)(22), 12022.53, subd. (d).)

Gang, firearm, and great bodily injury enhancements were added to the attempted

murder conviction. (§§ 186.22, subd. (b), 12022.53, subd. (d), 12022.7, subd. (a).) A

gang enhancement was also found regarding the weapons possession conviction.

(§ 186.22, subd. (b).) Defendant was sentenced to life without the possibility of parole

for the murder; nine years for the attempted murder; and eight months, one third the

midterm, for weapons possession. In addition, defendant was given indeterminate terms

of 25 years to life for the firearm enhancements, a 10-year term for the gang

enhancement in connection with the attempted murder,2 a three-year term for the great

bodily injury enhancement in connection with the attempted murder, and a one-year

term for the gang enhancement on the weapons possession charge. All terms were to be

served consecutive to the primary murder conviction.




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

       2Under section 186.22 subdivision (b)(5), a gang enhancement to a first degree
murder conviction carries no further penalty. (People v. Lopez (2005) 34 Cal.4th 1002,
1009.)


                                            2
       Defendant raises three contentions. First, he asserts the prosecutor committed

misconduct in his closing argument by misleading the jury about the applicable facts

and law. Second, he contends his right to remain silent was violated when investigators

did not immediately cease talking to him when he stated, “‘I’ll just stay quiet. I want to

know what’s going on.’” Last, he contends that the attempted murder conviction must

be reversed because there was no showing that he intended to kill anyone when he fired

a .357 Magnum revolver at a crowd. We find no error and affirm.

                    FACTUAL AND PROCEDURAL HISTORY

       On April 31, 2010, the victim was shot dead outside a house party in Lake

Elsinore. He was a member of a gang or tagging crew called “Out Causing Panic,” or

OCP. Defendant was an associate or member of a rival local gang called “Elsinore

Young Classics,” or EYC. Although defendant admitted in a police interrogation that

he shot at the victim, there is substantially contradictory testimony regarding the details

of what took place. The witnesses were of divided sympathies and were mainly

underage persons who were at a party where alcohol and drugs were available, and

some of those were reluctant to speak to police or testify because of the gang

associations of the victim and defendant. The testimonial discrepancies are not

material.

       The broad outline of the events is clear. The victim followed a group of young

women who were leaving the party, attempting to get the phone number of Brenda

DeLeon. After he got her number, he was told that the women were associated with the

rival gang EYC and he became angry. He returned to the car, insulted the women


                                             3
inside, threw his drink at the driver, spat at her, and proclaimed his allegiance to OCP.

One of the women in the car was Jessica Ibarra, defendant’s younger sister.

       The women drove away; the victim and a friend walked back toward the party.

He was then confronted in the street by defendant and a few others. After a brief

argument, defendant shot the victim.3 The victim was hit four times by .38-caliber

bullets. Anthony Portillo, a bystander, was hit once in the thigh by a .38-caliber bullet.

Marcy Murillo suffered an injury to her hand. The bullets that were recovered from the

bodies of the victim and Portillo were fired by defendant’s .357 Magnum revolver.

       After the shooting, defendant and three others jumped into a car and drove off.

Officer Gustavo Ibarra had just finished a traffic stop in the area when the car drove by.

Because the car was traveling at a high rate of speed and had no plates, Officer Ibarra

pulled it over. Defendant and two others were in the back seat; the passenger seat was

empty. Officer Ibarra noticed three expended shell casings in the car once the

occupants were out of the car. Two more shell casings and a .357 Magnum were later

found in the car.

       Defendant was interviewed on May 1, 2010, by Investigators Randy Wortman

(Wortman) and Josh Button (Button). After obtaining defendant’s full name and date of

birth, Wortman gave him a form of the Miranda warning:


       3  There is conflicting testimony as to whether there were other shooters in
defendant’s group. Shell casings for .25-caliber bullets were recovered from the scene,
but no one was struck by those bullets. Defendant did not assert that he was shot at by
the victim nor anyone with him; no bullets, fragments, or strike marks were found
behind defendant’s position.


                                             4
        “Wortman: . . . Okay. Before we, we talk any further, I have to explain your

rights to you. Okay. First of all you have the right to remain silent. Do you understand

that?

        “[Defendant]: Yeah. (affirmative).

        “Wortman: Okay. Anything you say can and will be used against you in a court

of law. Do you understand that?

        “[Defendant]: Um hum. (affirmative).

        “Wortman: You have the right to talk to a lawyer and have him present with you

while you’re being questioned. Do you understand that?

        “[Defendant]: (inaudible)

        “Wortman: And if you can not afford to hire a lawyer one will be appointed to

represent you before any questioning if you wish one. Do you understand that?

        “[Defendant]: Yeah. (affirmative).” (Sic.)

        Questioning then began. After answering over 30 questions, defendant appeared

to become “concerned” after he noticed a red activity light on a recording device held

by Button.

        “Wortman: Okay. Um, who was with you in the car?

        “[Defendant]: Two other couples.

        “Wortman: Okay, the same four of you guys that [got] pulled over? Did you

guys go together to the party?

        “[Defendant]: I don’t know what’s with all these questions, though.

        “Wortman: Huh?


                                             5
       “[Defendant]: I know you’re recording this fool, so um . . .

       “Wortman: Okay.

       “[Defendant]: I’ll just stay quiet, I just want to know what’s going on.

       “Wortman: Okay, Um, I don’t really understand what you’re saying. Um, we,

yeah, we’re recording you. But the reason we’re recording you is because when I run a

report later on I want to remember everything that was said.

       “[Defendant]: Yeah (affirmative).

       “Wortman: Um, a lot of times we take notes, we write reports later on and we

don’t really remember exactly what was said. Then you guys read the reports and go

“oh, that’s not what I said.” Okay. That’s the fairest way to record . . .

       “[Defendant]: Yeah. (affirmative)

       “Wortman: . . . everything. Um, and these are just basic questions so I have an

understanding. Obviously, um, there’s some facts that can’t really be disputed. First of

all, you guys were in a car, the four of you, and that car got pulled over by the police

last night. Deputy Ibarra as a matter of fact.

       “[Defendant]: Yeah.

       “Wortman: Um, and the four of you were in the car together. Um, this is just a

question I had, it’s just kind of just a basic question is, did you guys go to the party

together and leave together? Or did you go up there separate and just kind of leave, and

meet each other there, leave together? I’m just trying to get an idea. Cuz obviously

I’ve spoken to a couple other guys and there’s, there’s four of you so it takes some time




                                              6
and I do apologize for taking so long to get to you. Um, did you guys go up there

together?

       “[Defendant]: Oh, well they already told you, didn’t they?

       “Wortman: Hum?

       “[Defendant]: They already told you, right?

       “Wortman: Um, Adrian told me a handful of different stories to be honest with

you. Um, he mentioned something about making an arrangement and walking and you

guys picking him up and taking him to the party. It doesn’t mean anything; I just want

to know more background on you guys from last night.

       “[Defendant]: Hum.

       “Wortman: And, and just so you know, um, to be up front and honest with you

completely, we’ve spoken to probably what would you say, three hundred people now.

       “Button: Yep.

       “Wortman: I mean we talked, you saw, we locked down that party and at the

whole place was on, you know, det-, detention while we’re talking to everybody.

You’re just one of the many, many, many people we’ve spoken to. Okay. So I, and I’m

not coming at you accusing you or anything else. I’m just trying to link it in with

everybody else. Everybody at the party was asked the same question. How did you get

here, what car did you leave in, who did you leave with, that kind of stuff. Um, and I

know you left the party with Adrian, okay and uh, the other two gentleman.

       “Button: (inaudible) Is this bothering you?

       “[Defendant]: Hum?


                                            7
       “Button: Is that bothering you?

       “[Defendant]: Yeah. (affirmative)” (Sic.)

       At that point, Button took a recording device, shut it off, and gave it to

defendant. Immediately thereafter, defendant resumed his participation in the interview:

       “Wortman: Quick minute, okay. (inaudible) you can sit, okay? Um, that is all.

       “[Defendant]: Yeah.

       “Wortman: Okay, cool. Um . . . hey, I just want to clear; I know you left the

party with these guys. I just want to clarify you went together and left together. That’s

all.

       “[Defendant]: Well, I left with ‘em.

       “Wortman: Did you get there on your own, or did you get there with those guys?

       “[Defendant]: Well, I got there with them, with um, with Daniel.” (Sic.)

       Defendant continued to answer questions. Although he initially denied

participating in the shooting, he admitted bringing the .357 Magnum to the party and

shooting “like beside them, like to the side or something” of the victim. Prompted by

Wortman if he saw any of them “armed with a gun or a knife,” defendant responded, “I

saw something (inaudible) like something shiny in their hand.”4 His admissions

increased through the course of the interview. Because he was “just kinda mad” at the

OCP group, he fired “the whole barrel” at them. “I just started shooting at the little


       4 Defendant later said he “saw something shining, some, somebody’s hand” but
it was not the victim who had the shining object, it “[w]as some other guy that was with
him.”


                                              8
group” and then “just took off.” He admitted hearing from people in DeLeon’s car that

there was trouble with OCP at the party, but denied that he had ever seen those women

before. He steadfastly maintained that he was the only person in his group who shot.

       Defense counsel objected to the admission of the recording, claiming that the

Miranda warnings were ineffective and that defendant revoked his consent to be

interviewed. The court heard the motion prior to the trial and took testimony from

Wortman. Wortman testified that, when defendant stated he would stay quiet, Wortman

believed defendant was uncomfortable being recorded talking about his gang associates

because of a gang “code” against snitching. He understood defendant was not

exercising his constitutional rights, but rather declining to be recorded speaking against

the interests of gang members. He believed his understanding was confirmed when

defendant resumed cooperation when Button ostentatiously shut off a superfluous

recording device. The trial court found it was credible and not unreasonable that

Wortman believed and responded as he did in response to defendant’s statement and

denied the motion.

                                     DISCUSSION

       A.     INVOCATION OF MIRANDA RIGHTS

       Defendant asserts he made an unambiguous assertion of his right to remain silent

when he stated, “‘I’ll just stay quiet. I just want to know what’s going on.’”

       A suspect subject to custodial interrogation has the right to consult with an

attorney and to have counsel present during questioning; the police must explain this

right to him before questioning begins. (Miranda v. Arizona (1966) 384 U.S. 436, 469-


                                             9
473.) If the suspect effectively waives his right to counsel after receiving the Miranda

warnings, law enforcement officers are free to conduct questioning. (North Carolina v.

Butler (1979) 441 U.S. 369, 372–376.) Miranda dictates that, upon a suspect’s

subsequent invocation of his or her right to remain silent, the interrogation must cease.

(Miranda, at pp. 473-474; People v. Martinez (2010) 47 Cal.4th 911, 947.) However,

interrogating officers need only cease the interrogation when the suspect unambiguously

invokes his right to remain silent. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381

(Berghuis).) If an ambiguous statement is made, the interrogators “are permitted to

pose a limited number of followup questions to render more apparent the true intent of

the defendant.” (People v. Williams (2010) 49 Cal.4th 405, 429.) Although it is often

“good police practice” for officers to make clarifying inquiries when the suspect makes

an ambiguous or equivocal statement, there is no duty to do so. (People v. Nelson

(2012) 53 Cal.4th 367, 377; Davis v. United States (1994) 512 U.S. 452, 461.) The test

is objective, not subjective: How would a reasonable officer understand defendant’s

statement in the circumstances presented? (Nelson, at p. 384.)

       Remarks that facially suggest a desire to halt police questioning do not, in fact,

invoke the right to silence if they are reasonably viewed as unclear or equivocal. There

is no specific language required or hard line demarcating what is considered an

equivocal invocation. (See, e.g., People v. Stitely (2005) 35 Cal.4th 514, 534 [the

defendant’s statement “I think it’s about time for me to stop talking” reasonably

interpreted as only an expression of frustration]; People v. Jennings (1988) 46 Cal.3d

963, 977-978, fn. omitted [the defendant’s remarks, “You're scaring the living shit out


                                            10
of me. I’m not going to talk,” and “I’m not saying shit to you no more, man. . . . That’s

it. I shut up” expressed “only momentary frustration and animosity” under the

circumstances]; People v. Farnam (2002) 28 Cal.4th 107, 181 [ambiguity present in

“‘I’m not going to answer any of your fucking questions,’” and “‘Fuck this, I’m not

staying here anymore’”]; People v. Martinez, supra, 47 Cal.4th at pp. 949-950 [the

defendant’s remark, “That’s all I can tell you,” was reasonably viewed as meaning only

“That’s my story, and I’ll stick with it”]; People v. Vance (2010) 188 Cal.App.4th 1182,

1211 [ambiguous invocation where suspect stated, “‘I don’t have a side of the story’ and

‘I don’t want to talk about it’”].) If an ambiguous act, omission, or statement could

require police to end the interrogation, police would be required to make difficult

decisions about an accused’s unclear intent and face the consequence of suppression “‘if

they guess wrong,’” and place a significant burden on society’s interest in prosecuting

criminal activity. (Berghuis, supra, 560 U.S. at p. 382.) If a suspect has invoked his or

her Fifth Amendment right, further questioning is forbidden unless the suspect

personally initiates further communications, exchanges, or conversations. (People v.

Gamache (2010) 48 Cal.4th 347, 384.) The question whether the suspect or the police

reinitiated communication after the suspect’s invocation of Fifth Amendment rights is

predominately factual and reviewed under the substantial evidence standard. (Id. at p.

385.)

        In considering a claim on appeal that statements were admitted in violation of a

suspect’s Miranda rights, we independently review the trial court’s legal determination

and defer to its factual findings if substantial evidence supports them. (People v.


                                            11
Williams, supra, 49 Cal.4th at p. 425.) We “accept the trial court’s resolution of

disputed facts and inferences, and its evaluations of credibility, if supported by

substantial evidence.” (People v. Cunningham (2001) 25 Cal.4th 926, 992.) Although

we review the record and independently decide whether the challenged statements were

obtained in violation of Miranda, we may “‘give great weight to the considered

conclusions’” of the trial court. (People v. Jennings, supra, 46 Cal.3d at p. 979; see

People v. Musselwhite (1998) 17 Cal.4th 1216, 1239.)

       Defendant initially asserts, but does not press the argument, that his Miranda

waiver was incomplete because his response to Wortman’s question whether he

understood that he had a right to consultation with and the presence of an attorney was

reported as “(inaudible)” on the transcript. Defendant has not alleged he did not

understand that right. When the trial court held a hearing on the waiver, the issue of the

inaudible response to that question was raised and Wortman confirmed defendant

nodded his assent.5 We defer to the trial court on this issue of inference from the record

and witness credibility.

       Defendant’s asserts that his statement, “I’ll just stay quiet. I want to know

what’s going on,” represented an invocation of the right to remain silent. Defendant

claims that this was an unambiguous request to remain silent. To hold otherwise, he

argues, would effectively make “silent” a magic word, possessing a potency that “quiet”

lacks. If an unambiguous request to remain silent has been made, the People must

       “[Prosecutor:] But the point I want to make is he nods his head upwards and
       5
downwards after you ask him that question; is that correct? [¶] [Wortman:] Yes.”


                                            12
scrupulously honor his request. (Michigan v. Mosely, (1975) 423 U.S. 96, 100.)

Defendant asserts that questioning should have ceased.

       The trial court found defendant’s statements were ambiguous. After responding

to some substantive questions about his actions the night of the murder, defendant

resisted further questioning when asked with whom he had come to the party. Having

heard Wortman’s testimony, the trial court found it was “not unreasonable under those

circumstances, in what he believes he knows about gang culture, to proceed on [the]

assumption” that defendant was unwilling to be recorded giving information about

fellow gang members. Wortman testified regarding the “code of conduct” of gang

members where “[t]hey’ll admit to their own part but don’t want to be on the record

being—I’ll use the quote ‘rats’ or ‘snitches’ basically.” The trial court noted defendant

“immediately opens up again and begins that process of questioning and answering”

once Button turned off his recorder.

       There was no coercion, threats, or other compulsion addressed by either officer

toward defendant to get him to talk. (Berghuis, supra, 560 U.S. at p. 387.) Wortman

explained the usefulness of recorded interviews, gave the purpose for his line of

questioning, and told defendant he was one of 300 people that had been interviewed by

the police about that night. Defendant was not threatened with punishment or adverse

consequences if he chose not to speak: Wortman gave a detailed answer to defendant’s

request to “know what’s going on.” Further, Wortman was confirmed in his belief that

being recorded violating the “gang code” was the source of defendant’s unease when




                                           13
defendant acknowledged to Button that the recorder was bothering him, and resumed

speaking when it was turned off.

       The fact Wortman’s suspicion was proved correct does not in itself mean that it

was reasonable, but the totality of circumstances provides sufficient support for the trial

court’s determination. Wortman testified to his training and experience in dealing with

gang members and their code of conduct. It is notable that even after admitting his

responsibility for the shooting, defendant would not confirm that Adrian Reyes was a

gang member or even admit that he saw his own sister in DeLeon’s car. Defendant’s

sudden reticence when questioned about his fellow gang members reasonably caused

Wortman, an experienced officer, to suspect unease at being recorded. Finding

substantial evidence supporting the considered conclusions of the trial court, we affirm.

       Lastly, even if we were to hold that defendant effectively asserted his right to

remain silent by stating that he would “stay quiet,” he then undid that invocation by

reinitiating conversation with Wortman. By posing the query “I just want to know

what’s going on,” defendant initiated further conversation. Wortman had begun the

interrogation by stating that he was going to be “explaining things” to defendant, and

responded to defendant’s query by giving an overview of the interrogation and the

knowledge already held by the police. Although not strictly phrased as a question,

defendant was clearly requesting information from the investigator: no “talismanic

incantation” is necessary. Having invited resumption of the interrogation, defendant

cannot complain that he was coerced into continuing (People v. Gamache, supra, 48 Cal

4th at p. 385 [defendant stated “I’d like to know what is going on before I answer any


                                            14
more questions”]), and the police were not obligated to then renew the Miranda

warnings they had just given. (People v. Martinez, supra, 47 Cal 4th at p. 950.)

       We find no violation of defendant’s Miranda rights or possible prejudice to him.

       B.     PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT

       Defendant argues the prosecutor’s closing argument made misstatements of fact

and law sufficient to lead the jurors to convict despite the evidence they received and

the instructions given by the trial judge.

       Prosecutors are given a broad ambit to frame and argue the evidence in closing

argument, but they do not have an unlimited license. “A prosecutor’s conduct violates

the Fourteenth Amendment to the federal Constitution when it infects the trial with such

unfairness as to make the conviction a denial of due process. 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 trial court or the jury . . . . [W]hen 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. [Citation.]” (People v. Morales (2001) 25 Cal.4th

34, 44.)

       It is prosecutorial misconduct for a prosecutor to misstate the evidence. (People

v. Davis (2005) 36 Cal.4th 510, 550.) “It is not, however, misconduct to ask the jury to

believe the prosecution’s version of events as drawn from the evidence. Closing

argument in a criminal trial is nothing more than a request, albeit usually lengthy and


                                             15
presented in narrative form, to believe each party’s interpretation, proved or logically

inferred from the evidence, of the events that led to the trial. It is not misconduct for a

party to make explicit what is implicit in every closing argument.” (People v. Huggins

(2006) 38 Cal.4th 175, 207.) “Prosecutors have wide latitude to discuss and draw

inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor

draws are reasonable is for the jury to decide. [Citation.]” (People v. Dennis (1998) 17

Cal.4th 468, 522.) Proper instruction or admonishment by the trial court can cure

possible prejudice to a defendant if a prosecutor oversteps the limits of argument.

       “[A]rguments of counsel ‘generally carry less weight with a jury than do

instructions from the court. The former are usually billed in advance to the jury as

matters of argument, not evidence [citation], and are likely viewed as the statements of

advocates; the latter, we have often recognized, are viewed as definitive and binding

statements of the law.’ [Citation.]” (People v. Mendoza (2007) 42 Cal.4th 686, 703.)

“When argument runs counter to instructions given a jury, we will ordinarily conclude

that the jury followed the latter and disregarded the former, for ‘[w]e presume that

jurors treat the court’s instructions as a statement of the law by a judge, and the

prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’

[Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 717.)

       We will not reverse a defendant’s conviction because of prosecutorial

misconduct unless we find it reasonably probable the result would have been more

favorable to the defendant in the absence of the misconduct. (People v. Ellison (2011)

196 Cal.App.4th 1342, 1353.) Further, “‘a defendant cannot complain on appeal of


                                             16
misconduct by a prosecutor at trial unless in a timely fashion’—and on the same

ground—‘he made an assignment of misconduct and requested that the jury be

admonished to disregard the impropriety.’ [Citation.]” (People v. Ashmus (1991) 54

Cal.3d 932, 976.) The People argue defendant forfeited the argument by counsel’s

failure to contemporaneously object and request a jury admonition. It is true that no

prosecutorial misconduct can be found if there is a failure to object, absent a showing of

futility or impossibility of cure. (People v. Clark (2011) 52 Cal.4th 856, 960.)

However, since defendant also argues that if he lost this claim through counsel’s failure

to object he received ineffective assistance of counsel, we will consider his claim that he

was prejudiced by the comments.

       Defendant asserts the prosecutor committed misconduct through misstatements

of law and fact. “‘To prevail on a claim of prosecutorial misconduct based on remarks

to the jury, the defendant must show a reasonable likelihood the jury understood or

applied the complained-of comments in an improper or erroneous manner.’ [Citation.]”

(People v. Wilson (2005) 36 Cal.4th 309, 337.) The cited factual statements are that the

jury was there “simply to decide, did [the victim] deserve to die”; that “you shoot

somebody with a .38-caliber gun twice in the heart, a 20-year-old kid, that’s first degree

murder”; and that there was “no evidence before you that OCP—that anybody from

OCP ever had a gun or fired a gun that night.” Defendant spends very little time on

these factual statements, arguing for the first two only that it “was not their job,” and

“that is not necessarily so.”




                                             17
       The first statement is not misconduct. It was a rhetorical embellishment, and it is

not likely that the jury substituted that argument for their instructions and decided the

charges on that basis.

       Immediately before the second statement, the prosecutor said, “This is not a

manslaughter case. This is a first-degree murder case.” It is clear from context that the

second statement, on rebuttal, was not meant to define murder but to distinguish the

charges in order to persuade the jury not to settle on a manslaughter conviction.

       The prosecutor’s assertion of “no evidence” that anyone in OCP had or fired a

gun was hyperbole, but not far from truth. It is correct, as defendant charges, that there

was some evidence before the jury that defendant reacted to a “glint” in someone’s

hand, which could have been a gun. Defendant at one point stated he was afraid of the

glinting object “because it was a knife,” but he said it might have been a gun. All of

that evidence, however, came from defendant’s statements in the recorded interrogation

where he dimly recalled seeing something held by someone other than the person at

whom he shot. There was no corroboration by other witnesses or physical evidence.

The prosecutor’s statement of “no evidence” was argument against the jury finding that

defendant acted in self-defense. There was no evidence that the murder victim had

anything in his hands. We find that this misstatement of fact was de minimus and

harmless. We conclude that none of the complained-of factual misstatements raise any

risk of corruption of the jury’s verdict.




                                            18
       Defendant contends that the prosecutor’s closing argument contained two

misstatements of law. He asserts the jury was misled to believe they had to consider

defendant’s guilt on the charges in a specific order and that a mitigating defense of

imperfect self-defense required the jury to find defendant reasonably believed that he

had to use lethal force.

       Regarding deliberations, the prosecutor told the jury that “in order for you to

reach a verdict on either one of these counts of voluntary manslaughter, you must all 12

agree, first, that he’s not guilty of first degree murder; second, that he’s not guilty of

second degree murder, before you come back with any verdict on either one of these

theories of voluntary manslaughter.” The People argue that the statement did not set an

order for deliberation, but merely stated that those things must be done at some point

before a verdict was returned. The interpretation is valid, but the prosecutor’s use of

“first” and “second” for his points could also have been construed not as items in a list

but as ordinal points. It is possible the jury understood his remarks as setting a

sequence for their deliberation.

       In People v. Kurtzman (1988) 46 Cal 3d 322, 330, the trial court gave a “loose

paraphrase” instruction in response to a potentially hung jury, which said they had to

unanimously agree whether the defendant was guilty of second degree murder before

they could consider voluntary manslaughter. (Id. at p. 327.) The jury had asked if they

could return a guilty verdict on manslaughter despite not reaching unanimity on murder.

In that paraphrase, the court said, “Before you get to the other lesser included offenses, I

want to find out if you have unanimously agreed on the original charge, which is murder


                                             19
in the first degree.” (Ibid.) Our Supreme Court held this ordering arose from a

misinterpretation of language in Stone v. Superior Court (1982) 31 Cal.3d 503, which

held that a jury must be allowed to return a verdict on a greater offense if they were

deadlocked on a lesser offense. Although Kurtzman recognized the People’s advantage

in having the jury consider the greatest offense first, it found no prejudice to the

defendant because of the court’s erroneous instruction and declined to reverse the

verdict.

       Here we do not deal with an instruction given from the bench, but an

interpretation that can be given to the People’s closing statements. The jury here was

correctly instructed. After the arguments of counsel they were told that those arguments

were not evidence and that they may consider the different kinds of homicide in any

order.6 Jurors are presumed to follow the court’s instructions. (People v. Holt (1997)

15 Cal.4th 619, 662.) “When argument runs counter to instructions given a jury, we

will ordinarily conclude that the jury followed the latter and disregarded the former, for

‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a

judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to

persuade.’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 717.) It is not likely

counsel’s argument had an effect upon the jury, and, most tellingly, defendant presents


       6 It is interesting to note that after the court instructed the jury they could
consider the homicide charges in any order, the court then gave an instruction
containing a list of directions, the first being, “One. If all of you agree that the People
have proved beyond a reasonable doubt that the defendant is guilty of first degree
murder, complete and sign that verdict form.” Counsel’s argument is similar.


                                             20
no evidence here showing he was prejudiced by counsel’s remark. Given the evidence

on the record, it is not enough for defendant to summarily state that “it cannot be said

with any confidence that the jurors were well enough informed or willing to ignore the

prosecutor’s directive.”

       Second, defendant argues the prosecutor advised the jury they could not find

imperfect self-defense unless they concluded that defendant “reasonably believed it was

necessary for him to use lethal force.” Defendant does not cite a specific statement or

section in the record from which this conclusion is drawn. The closest parallel is in his

summary of the prosecutor’s argument at page 546 of the reporter’s transcript where he

quotes from the conclusion: “‘There’s no evidence that [defendant] thinks [any]

differently than a reasonable person. And you as jurors are instructed to kind of think

like reasonable people.’”7 This does not relate to the standard for imperfect self-

defense. Further, two paragraphs prior to that remark, the prosecutor told the jury,

“Let’s talk about imperfect self-defense and why it doesn’t apply. It’s basically [where]

a reasonable person would say, ‘This doesn’t warrant the use of the amount of force that

is used here. But the defendant unreasonably, but actually, believed that the amount of

force was necessary in order to protect himself.’” This was a fair summary of the

defense. Defendant has the responsibility to pinpoint the evidence supporting his




       7  Defendant’s other supporting citation to the record— that, “‘defendant can’t
create his own standard’”—comes from the prosecutor’s discussion of the heat-of-
passion defense, not from imperfect self-defense.


                                            21
factual assertions, but has not done so here. (Cal. Rules of Court, rule 8.204(a)(1)(C).)

Review of the record shows that the prosecutor described the law correctly.

        In his subsection titled “Failure to Object,” defendant attempts to demonstrate

prejudice. The demonstration depends upon a finding that the prosecutor misled the

jury into believing imperfect self-defense requires a reasonable belief that lethal force

was necessary. Given that, defendant states he was prejudiced because the jury was

precluded from considering voluntary manslaughter until after they had voted on

murder. If the jury had understood imperfect self-defense, the argument goes, they

would have convicted defendant of voluntary manslaughter if they did not have to

consider murder first. In addition to being contrary to the facts, as outlined above, the

argument is entirely speculative. Defendant’s argument does not suffice to undermine

the reliability of the jury’s verdict. (Strickland v. Washington (1988) 466 U.S. 668,

694.)

        We find no prejudice to defendant from the prosecutor’s statements in argument.

        C.     INTENT REQUIREMENT FOR ATTEMPTED MURDER

        Defendant asserts he lacked a specific intent to kill Anthony Portillo despite

emptying the barrel of his handgun by shooting in Portillo’s direction and hitting him in

the thigh.

        The question of whether defendant had the requisite intent to kill is a question for

the fact finder. (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) On appeal, instead

of reweighing the evidence or redetermining the credibility of witnesses, we need only

“determine the legal sufficiency of the found facts” and need not “second guess the


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reasoning or wisdom of the fact finder.” (Ibid.) Based on our review of the record, we

conclude substantial evidence supports the jury’s finding that defendant’s actions

demonstrated an intent to kill. “The point is that where the act of purposefully firing a

lethal weapon at another at close range gives rise to an inference of intent to kill, that

inference is not dependent on a further showing of any particular motive to kill the

victim.” (People v. Smith (2005) 37 Cal.4th 733, 741.)

       Defendant asserts there is no evidence he “specifically intended to kill anyone

who was not charging towards him before his weapon was fired.” That argument

misstates the evidence—testimony was received that the victim was retreating from

defendant with his hands held over his head in a surrender gesture. The jury could

reasonably find that defendant fired as part of an altercation between gangs and

intended to shoot members of OCP who were attending an OCP party. Even if

defendant did not know that Portillo was a member of OCP, he was part of a group that

defendant identified as enemies and wished to kill. Substantial evidence supported

defendant’s specific intent to kill Portillo.

       Defendant argues it is inconsistent that he was convicted of the attempted murder

of Portillo but not of Murillo, stating that it could only be because Portillo was an OCP

gang member and that “the jurors were likely swayed to sustain any charge against

[defendant] that seemed to be gang-related.” We are not persuaded. A bullet from

defendant’s gun was taken from Portillo’s leg; Murillo had an injury to her hand of

unproven origin. It is not inconsistent or meaningful that defendant was convicted of




                                                23
attempting the murder of Portillo but not of Murillo because there was very little

evidence that Murillo was injured by a bullet fired from defendant’s gun.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                      MILLER
                                                                                     J.


We concur:


RAMIREZ
                              P. J.


CODRINGTON
                                   J.




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