Filed 9/8/14 P. v. Covian CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H037986
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR0702369)

         v.

JOSE ARNULFO COVIAN,

         Defendant and Appellant.



         Defendant Jose Arnulfo Covian appeals from a judgment of conviction entered
after a jury found him guilty of first degree murder (Pen. Code, § 187). The trial court
sentenced defendant to state prison for 25 years to life. On appeal, defendant raises
contentions relating to the sufficiency of the evidence, jury instructions, and ineffective
assistance of counsel. We affirm the judgment.1


                                                I. Statement of Facts
                                              A. The Prosecution Case
         At about 10:00 p.m. on December 3, 2007, Carlos Argueta and his friend
Alejandro Hurtado were walking towards Hurtado’s house on Homestead Avenue in
Hollister. Defendant, who was standing nearby, called out to Hurtado and offered him a

1
      Defendant has also filed a petition for writ of habeas corpus, which we dispose of
by separate order.
beer, but Hurtado responded, “No, you’re already drunk.” Argueta also declined
defendant’s offer. After defendant said that he would be by later, Hurtado told him that
everyone was sleeping at his house and he was going to go to bed.
       When Argueta and Hurtado arrived at Hurtado’s house, they went into the garage.
The garage door was closed. The garage also had a side door which could be accessed
from the street through a gate. The latch to the gate was on the inside of the gate and
away from the street. One could reach the latch from the street side of the gate by
reaching over the top of the gate.
       Hurtado called his friend Joann Martinez from the garage. Argueta testified that
Hurtado asked her to give Argueta a ride home. Martinez testified that Hurtado asked her
to come over, because he wanted her to find some methamphetamine for Argueta. When
Martinez arrived at the house, she called Hurtado on her cell phone and asked if Argueta
was ready. She also told him that she saw something suspicious. Argueta went outside,
opened the gate, and waited for her to get out of her car. According to Martinez, she had
seen three men, including defendant, “hanging out” on the corner near the Hurtado house.
       Argueta testified that he opened the side garage door for Martinez. According to
Argueta, it was approximately 10:15 p.m. or 10:30 p.m. However, Martinez testified that
she arrived at the Hurtado house at 9:00 p.m. and she had been unable to find any
methamphetamine for Argueta.
       Martinez testified that sometime between 10:30 p.m. and 11:00 p.m., she heard
banging on the closed garage door. Hurtado asked them what they wanted and told them
that if they had a beef, he would meet them around the corner. They left. Argueta
testified, however, that sometime after Martinez arrived, defendant opened the side
garage door. Argueta prevented defendant from entering the garage. Hurtado told
defendant, “Don’t do that because you’re lacking respect, I’ve never gone to your house.”
It had been about 10 minutes since defendant had offered them a beer. Defendant
appeared angry and left. As defendant left, he said, “Later, we’ll see each other.”
                                             2
       Approximately 10 minutes later, defendant returned to the garage and knocked or
hit loudly on the side door. Defendant was angry and yelled, “Come outside, I want to
fight with you, and, I have my soldiers.” Argueta told Hurtado to wait and that he would
go outside. When Argueta went outside, defendant said, “Where is Alex, I want to fight
with him.” Argueta asked him why he wanted to fight. Defendant responded that
Hurtado was very conceited and thought a lot of himself. Hurtado told defendant to
leave. Hurtado also told Argueta to come inside because defendant was drunk. After
defendant tried “to go on top of” Hurtado, Argueta grabbed him and told him to calm
down. Defendant left with his three companions. Hurtado and Argueta then put some
bent nails in the gate latch so that the gate could not be opened.
       About 10 to 15 minutes later, Hurtado and Argueta heard the voices and someone
pulling on the side gate. It was about 11:35 p.m. or 11:40 p.m. Defendant had returned
with the same three companions, and defendant again challenged Hurtado to fight.
Hurtado said, “Now this guy is making me very tired, I’m getting very tired.” Hurtado
was also angry because defendant kept coming back and his parents were sleeping.
       Hurtado told Argueta and Martinez to stay in the garage, grabbed a small steel bar
from a weight-lifting set, and went outside. Hurtado was right-handed and was holding
the bar in his right hand. Argueta testified that he followed Hurtado, but Martinez
testified that Argueta remained in the garage with her. Argueta saw defendant trying to
reach over the top of the gate to remove the nails. Hurtado hit defendant’s forearm with
the bar, though he “didn’t hit him very well. It just brushed passed his hand.” At that
point, the gate opened, defendant “threw himself to the ground” and asked Hurtado,
“What’s wrong?” and “Why are you hitting me?” Hurtado replied that defendant had
worn him out and he asked defendant what he wanted. Defendant was kneeling on one
leg in a crouched position with his forearm raised around the level of his eyes or
forehead. Defendant’s right hand was inside his sweater sleeve. When defendant asked


                                              3
Hurtado why he was hitting him, Hurtado responded, “I’m not hitting you, I just said,
What is the problem you have with me?” Defendant did not answer.
      Argueta then heard voices say, “Leave us in p[ea]ce.” Before Argueta turned
toward defendant’s companions, defendant and Hurtado were approximately three feet
apart. Argueta looked towards defendant’s companions. When Argueta said that no one
was hitting defendant and they should take him home because he was drunk, they
responded that they wanted to fight. Argueta took about four steps towards them as he
pushed the sleeves of his sweater up. Before Argueta began fighting with defendant’s
companions, he saw Hurtado, who was holding the bar “down, like in the middle” and
not raised up, turn towards him. At that point, Argueta turned and saw defendant jump
from a crouching position and grab Hurtado with both hands.2 Defendant then said, “I
got him, I got him” and began running away. Hurtado took five or six steps, and started
swaying. Argueta told Martinez to call an ambulance, but Hurtado died before it arrived.
      As the police were arriving, Argueta left. Argueta was on probation following a
conviction for being under the influence of methamphetamine. He had a warrant for his
arrest, because he had violated the terms of his probation. Argueta hid in a shed behind
the Hurtado garage until about 4:30 a.m. or 5:00 a.m.
      Alejandro Covian, defendant’s nephew, testified that he lived with his
grandparents and defendant on Homestead Avenue in Hollister in December 2007.
Sometime after 10:00 p.m. on December 3, 2007, Alejandro lent defendant $20 to buy
“crystal” from Hurtado. According to Alejandro, defendant frequently bought
methamphetamine from Hurtado, and Hurtado was the only person from whom defendant
bought drugs.


2
      Martinez heard wrestling sounds and went outside with Argueta. She never saw
Hurtado try to hit anyone with the bar after the gate was opened. She saw defendant and
Hurtado entwined as they were fighting, but she did not see a knife or see Hurtado get
stabbed. Martinez called 911.
                                            4
       Alejandro accompanied defendant on his first visit to the Hurtado house, but he
remained in the truck while defendant approached the house. Alejandro did not see what
transpired between defendant and Hurtado. However, Alejandro heard Hurtado say
something like, “Come in a couple of minutes” to defendant. About five minutes later,
defendant returned to the truck and said that Hurtado did not have any drugs for sale.
       Defendant and Alejandro returned home where they were joined by their
neighbors Alfredo and Urbano. They sat in the truck and drank beer for about 15
minutes. Defendant then walked to Hurtado’s house. Five minutes later, Alejandro
walked towards Hurtado’s house and met defendant as he was walking home. When they
returned to the truck, defendant showed him the drugs that he had just bought from
Hurtado. Defendant became upset because Hurtado had not given him the amount that he
had paid for.
       Defendant returned to Hurtado’s house, and Alejandro, Urbano, and Alfredo
followed him. When they arrived, Alejandro saw Hurtado swinging at defendant with a
bar and hit his shoulder “a couple of times . . . more than two.” Defendant asked
Argueta, “Why is he hitting me?” Defendant was also “trying to block him” and “trying
to cover himself.” Alejandro heard defendant say “I got him” once or twice, and then run
past him back to the truck parked in front of his own house. Alejandro, Urbano, and
Alfredo followed defendant to the truck where they continued to drink beer. Defendant
told them that he had stabbed Hurtado and he was scared. Alejandro stated that he did
not think that defendant had stabbed Hurtado, because Hurtado acted “like nothing
happened.” Defendant responded that “he felt it” and he was scared. Defendant then
produced a knife and stabbed the seat of the truck. Shortly thereafter, they heard the
police and ambulance sirens. Alfredo and Urbano left, and defendant and Alejandro
entered their house. They were all scared.
       The police contacted Alejandro in the early morning hours of December 4, 2007.
Alejandro was “scared” and “traumatized” and did not tell the police that Hurtado hit
                                             5
defendant. In February 2009, Alejandro told the officer that Hurtado hit defendant on the
arm.
       Dr. John Hain testified as an expert in forensic as well as anatomic and clinical
pathology. After he conducted an autopsy of Hurtado on December 5, 2007, he
concluded that Hurtado bled to death as a result of a single stab to the area between his
fifth and sixth ribs. In Dr. Hain’s opinion, the knife which inflicted the injury had a blade
of around six inches. The wound was consistent with having been caused by a knife
which was found at defendant’s house.
       Dr. Hain also examined Hurtado’s clothing and concluded that Hurtado’s arms
were not raised above the level of the wound. He explained that if Hurtado’s arms had
been raised above the level of the wound when he was stabbed, there would have been a
greater discrepancy between the position of the wound and the position of the
corresponding tear on his sweatshirt.
       Officer Rose Pacheco was dispatched to the scene and took a brief statement from
Martinez. After Officer Pacheco heard Martinez’s description of the perpetrator, she
thought of defendant as a possible suspect. When she took Martinez for the showup,
defendant had his hair pulled up in a ponytail. Martinez asked for him to remove his
pony tail, which he did. Martinez then positively identified him as the perpetrator.
       Sergeant Don Pershall testified regarding the procedure that he had followed to
obtain an eyewitness identification of defendant from Martinez. He went to the county
jail to obtain a photographic lineup. However, he had some difficulty because he did not
have photographs with defendant’s current hair style. When Sergeant Pershall used a
photograph with defendant’s hair slicked back, Martinez was unable to make an
identification.
       Captain Carlos Reynoso spoke to defendant at his house in the early morning
hours of December 4, 2007, and asked him if there was anything that he wanted to tell
him prior to going outside for a field lineup. Captain Reynoso told him that the police
                                             6
were there “to investigate an incident that had happened down the street earlier that
night” and indicated that there was “some kind of fight or disturbance.” Defendant stated
that he did not know anything about what was going on, and he denied any knowledge of
any incident that had occurred. He also stated that he had been drinking and indicated
that he was intoxicated. When Captain Reynoso asked if he had any injuries, defendant
replied that he had no injuries. Captain Reynoso also asked him if he had been hit by a
pipe, and defendant said no.
        While waiting for the witness to arrive for the field lineup, defendant asked
“[W]hat happened with the man from down the street[?]” Defendant also asked how
Hurtado “was doing, and he asked if they had killed him.” Captain Reynoso did not
know whether any of the other officers had mentioned a killing to defendant. Captain
Reynoso talked to defendant about finding a metal bar at the crime scene and “not
knowing whether this was possibly a self-defense type of incident . . . .” However,
defendant never admitted that he was present at the Hurtado house. After Martinez
identified defendant as having been involved in the Hurtado homicide, defendant was
arrested. As defendant was placed in the patrol car, he said to Captain Reynoso, “You’re
wrong.”
        At approximately 4:00 a.m., Captain Reynoso advised defendant of his Miranda3
rights, which he waived. Defendant stated that he had been drinking beer outside his
house when he saw some individuals running towards his house and then jumping nearby
fences. Defendant continued drinking until police cars began to arrive. He then ran into
his house because he was concerned that he “might get in trouble for drinking
outside . . . .”
        Defendant admitted to Captain Reynoso that he knew Hurtado and stated that they
had not gotten into an argument. He referred to their relationships as “cool.” Defendant


3
        Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
                                              7
then asked Captain Reynoso “if [Hurtado] was the one that was stabbed.” He replied that
he “had never mentioned anyone being stabbed.” When Captain Reynoso told defendant
that he was under arrest for murder, defendant asked him “not to advise his mother what
he was being arrested for.”
         At about 2:30 p.m. that same day, defendant was again advised of his Miranda
rights, which he waived. Captain Reynoso asked defendant to tell his side of the story.
Defendant said that he had been drinking outside his home and also smoked some
marijuana. When defendant was told that this was inconsistent with his nephew’s
statement, defendant said “that that was his side of the story . . . .” Defendant said his
nephew was “a young guy and he’s not very smart, he doesn’t know what he’s talking
about.” He claimed that he had last seen Hurtado two months earlier. Defendant denied
that he offered Hurtado a beer or whistled to him that night. Defendant told Captain
Reynoso that he had the wrong guy.
         In February 2008, Sergeant Pershall collected various items, including a bed sheet,
a writing tablet, and a beanie, from defendant’s jail cell. The bed sheet had “187 Case
Prison” written on it in several places as well as “1985.” “187” is the Penal Code section
for murder and 1985 is the year that defendant was born. The writing table had “187
Case” and “Pepe” written on it. Pepe is defendant’s nickname. The beanie had “187”
written on it. Defendant did not have any cellmates. In Sergeant Pershall’s opinion, the
items indicated that defendant was “bragging” but was “not necessarily” confessing to the
crime.
         Lorena Hurtado Scalmanini, Hurtado’s sister, testified about Hurtado’s good
character and relationship with his family.


                                      B. The Defense Case
         Dr. David Posey, an expert in forensic pathology, testified that Hurtado bled to
death from a stab wound. He opined that the absence of a hilt mark on Hurtado’s body
                                              8
indicated that it could have been an accidental stabbing or a defensive stabbing. Based
on the absence of other injuries to Hurtado, Dr. Posey testified: “I don’t get the feeling
that the aggressor’s intentions were meant to stab him.” He also testified that based on
the position and path of the knife wound, Hurtado was leaning forward and “had to have
his hand up extended” when he was stabbed.
       Dr. Posey discussed Hurtado’s post-mortem toxicology report, which showed that
Hurtado’s methamphetamine level was 0.71 milligrams per liter. The “potentially toxic”
range for methamphetamine begins at 0.2 milligrams per liter and extends to 5.0
milligrams per liter. According to Dr. Posey, only a chronic user could tolerate the high
dosage that Hurtado had in his body and Hurtado was under the influence of
methamphetamine when he died. Dr. Posey testified that chronic users of
methamphetamine will have delusions as well as visual and audio hallucinations. They
will also be paranoid and aggressive. Dr. Posey noted that the weight-lifting bar which
Hurtado was swinging at defendant was 14 inches long and potentially a lethal weapon,
because it could fracture a skull with the application of only minimal force. In his
opinion, Hurtado was the aggressor because he was under the influence of
methamphetamine and armed with a club. However, Dr. Posey formed this opinion
without knowing that there was evidence that defendant had challenged Hurtado to fight.
Dr. Posey was also not aware that defendant had stated that he had “soldiers” with him.
       Dr. Taylor Fithian testified as an expert witness in the area of the effects of
methamphetamine on human behavior. According to Dr. Fithian, chronic users of
methamphetamine have “a great deal of emotional ups and downs,” are violent, and
experience “alterations in [their] perception of the world . . . .” Methamphetamine can
also cause a user to experience “delusions where you think that people are trying to kill
you or people are out to hurt you” as well as auditory and visual hallucinations. Chronic
methamphetamine users “become very delusional and very psychotic. They can look like
someone who’s very, very crazy; like someone who we call schizophrenic.” In his
                                              9
opinion, Hurtado was “clearly under the influence of methamphetamine and would have
had signs and symptoms of methamphetamine intoxication and possibly psychosis.”
       James Huggins, a defense investigator, testified that he interviewed Argueta at an
immigration detention facility. They discussed the status of his “deportation status
appeal,” and Argueta told him that he “lost his appeal and a person name[d] Candy was
helping him with the appeal letter.” Huggins determined that “Candy” referred to the
prosecutor, District Attorney Candice Hooper. Argueta also stated that Candy wrote a
letter on his behalf to help him obtain a U-VISA, which was “like getting asylum.”
Huggins understood Argueta’s definition of asylum to mean that Argueta would remain
in the United States until he testified at defendant’s trial. Argueta also believed that he
would be “getting out to go see his dying mother.” Huggins confirmed that “paperwork”
was required from the district attorney’s office in San Benito County to ensure that an
individual, who had been scheduled for deportation and was a material witness in a
murder case, remained in the United States in order to be available to testify at the trial.
       Argueta testified that he told Huggins that his appeal was currently in the Ninth
Circuit Court of Appeals. He did not tell Huggins that anyone was helping him with his
deportation issues. Argueta told Huggins that his attorney “sent a letter to Candace
because [he] was already deported. But they can’t deport anyone if they have a court
appearance coming up; so the person has to go to court first, then get deported.”
       Gregory LaForge was defendant’s attorney in September 2008 and was present at
defendant’s preliminary hearing. At that time, LaForge witnessed a demonstration by
Deputy District Attorney Patrick Palacios and Argueta of the relative positions of
Hurtado and defendant prior to the stabbing. Argueta, who portrayed defendant, was
down on his right knee and his left knee was up while Palacios, who portrayed Hurtado,
had raised his hand holding the simulated steel bar “straight up.”




                                              10
                                         II. Discussion
                                A. Sufficiency of the Evidence
       Defendant contends that the evidence was insufficient to prove the elements of
first degree murder.
                                    1. Standard of Review
       “The law we apply in assessing a claim of sufficiency of the evidence is well
established: ‘ “ ‘ “[T]he court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial evidence—that is,
evidence which is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.” ’ ” ’ [Citation.] The
standard is the same under the state and federal due process clauses. [Citation.] ‘We
presume “ ‘in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct
or circumstantial evidence is involved.” [Citations.]’ [Citation.]” (People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 294 (Gonzales).)
                             2. Deliberation and Premeditation
       “All murder which is . . . willful, deliberate, and premeditated killing . . . is murder
of the first degree.” (Pen. Code, § 189.) “A verdict of deliberate and premeditated first
degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation’
refers to careful weighing of considerations in forming a course of action; ‘premeditation’
means thought over in advance. [Citations.] ‘The process of premeditation and
deliberation does not require any extended period of time. “The true test is not the
duration of time as much as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .”
[Citations.]’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
       Here, defendant was “not happy” when Hurtado declined his offer of a beer.
Defendant then said that he would be by later, but Hurtado told him not to come to his
                                              11
house because everyone was sleeping. Nevertheless, defendant arrived at the Hurtado
home, entered the property through a gate, and opened the side garage door. After
Argueta stood in front of defendant and Hurtado told him not to enter the garage,
defendant became angry and left, saying “Later, we’ll see each other.”
         About 10 minutes later, defendant returned to Hurtado’s garage and knocked or hit
loudly on the side door. Defendant was angry, challenged Hurtado to a fight, and
announced that his “soldiers” were with him. When Argueta went outside, defendant
asked where Hurtado was and stated that he wanted to fight him. Argueta asked
defendant why he wanted to fight him, and defendant responded that Hurtado was
conceited and thought a lot of himself. Hurtado told defendant to leave. After defendant
tried to reach Hurtado, Argueta grabbed him and told him to calm down. Defendant and
his three companions then left, and Hurtado and Argueta tried to lock the gate with some
nails.
         About 10 to 15 minutes later, defendant returned to the Hurtado property for a
third time. Hurtado grabbed a steel bar from a weight-lifting set and went outside.
Defendant, who was accompanied by the same three people, was trying to remove the
nails in order to enter through the gate. Hurtado swung the bar at defendant’s arm and
delivered a glancing blow to his forearm. At that point, the gate opened and defendant
threw himself to the ground where he knelt down in a crouching position with his
forearm raised around his eyes and forehead and asked Hurtado, “What’s wrong?” and
“Why are you hitting me?” Defendant’s right hand was hidden inside his sweater sleeve.
Defendant and Hurtado were about three feet apart.
         When Argueta told defendant’s companions to take defendant home, they
challenged him to a fight. Before Argueta began fighting with them, he saw Hurtado,
who was holding the bar “down,” turn towards him. At that point, Argueta turned around
and saw defendant jump from the crouching position and grab Hurtado with both hands.


                                             12
Defendant then said, “I got him, I got him.” As defendant ran away, he told his
companions, “Let’s go, Let’s go. I got him.”
       The jury could reasonably infer from this evidence that defendant was eager to
fight Hurtado, wanted to confront him outside, and had concealed his knife in his sweater
sleeve. Defendant’s repeated visits to the Hurtado property, his stated intention to fight
Hurtado, his concealed knife, his jump toward Hurtado as Hurtado’s attention was
diverted, and his statements of “I got him, I got him” after he stabbed Hurtado reasonably
supported the jury’s conclusion that defendant had thought the killing over in advance
and had carefully weighed the considerations in forming this course of action. Thus,
there was substantial evidence that the killing of Hurtado was deliberate and
premeditated.
       Relying on People v. Anderson (1968) 70 Cal.2d 15 (Anderson), defendant argues
that the evidence was insufficient to support a finding of deliberation and premeditation.
Anderson stated: “The type of evidence which this court has found sufficient to sustain a
finding of premeditation and deliberation falls into three basic categories: (1) facts about
how and what defendant did prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to result in, the killing—
what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury could reasonably infer a
‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or
(3), would in turn support an inference that the killing was the result of ‘a pre-existing
reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere
unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the
killing from which the jury could infer that the manner of killing was so particular and
exacting that the defendant must have intentionally killed according to a ‘preconceived
design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can
reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that
                                             13
this court sustains verdicts of first degree murder typically when there is evidence of all
three types and otherwise requires at least extremely strong evidence of (1) or evidence of
(2) in conjunction with either (1) or (3).” (Id. at pp. 26-27.)
       The California Supreme Court has subsequently clarified the application of the
Anderson factors. It noted that “[t]he Anderson guidelines are descriptive, not
normative. . . . [¶] . . . The Anderson factors, while helpful for purposes of review, are
not a sine qua non to finding first degree premeditated murder, nor are they exclusive.”
(People v. Perez (1992) 2 Cal.4th 1117, 1125.) The court has also stated that
“[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.
The Anderson analysis was intended as a framework to assist reviewing courts in
assessing whether the evidence supports an inference that the killing resulted from
preexisting reflection and weighing of considerations. It did not refashion the elements
of first degree murder or alter the substantive law of murder in any way.” (People v.
Thomas (1992) 2 Cal.4th 489, 517.)
       Defendant first focuses on the lack of planning activity. He argues that “[w]hile it
is undoubtedly true that [he] took a knife to Hurtado’s house and that a knife is a deadly
weapon, . . . [i]f [he] had the knife with him the entire evening – and nothing in the
record suggests that he did not – then the fact that he happened to have it at the moment
when he concluded that he needed to defend himself against Hurtado’s attack does not
show that prior to the killing ‘the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing.’ ” First, as discussed infra, the jury could
have reasonably concluded that defendant did not need to defend himself against
Hurtado. Second, even assuming that defendant routinely carried a knife, the jury could
have also reasonably concluded that defendant’s removal of the nails from the gate latch,
his concealment of the knife in his sweater sleeve as he entered through the gate as well
as his repeated visits to the Hurtado property to confront Hurtado established planning
activity.
                                              14
       Defendant argues, however, that his repeated visits “do[] not suggest a
preconceived design to kill Hurtado.” Relying on Alejandro’s testimony that Hurtado
sold defendant a baggie of methamphetamine on his second visit to the house, he claims
that there was no evidence that he made multiple visits to gain an opportunity to attack
Hurtado. However, it was the jury’s role to determine the credibility of the witnesses,
and it could have reasonably found that Alejandro’s testimony was not credible. (People
v. Lee (2011) 51 Cal.4th 620, 632 (Lee).) Drawing all inferences in favor of the
judgment, we must presume the jury concluded that defendant went repeatedly to the
Hurtado property to confront Hurtado. (Gonzales, supra, 52 Cal.4th at p. 294.)
       Defendant next contends that his “shouting ‘I got him’ was just as likely to have
been his expression of surprise, shock, or horror at what he had just done,” as it was a
declaration that he had carried out a plan to kill. Here, defendant concealed his knife and
then declared “I got him” after stabbing Hurtado as he fled. Based on this evidence, the
jury could have reasonably concluded that defendant’s declaration meant “I got him, as I
intended to do.” The jury was not required to interpret the statement as defendant has.
(Gonzales, supra, 52 Cal.4th at p. 294.)
                                  3. Justifiable Self-defense
       Defendant argues that the evidence was insufficient to prove that he did not act in
justifiable self-defense.
       “For killing to be in self-defense, the defendant must actually and reasonably
believe in the need to defend. [Citation.] . . . To constitute ‘perfect self-defense,’ i.e., to
exonerate the person completely, the belief must also be objectively reasonable.
[Citations.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted
(Humphrey).) “[T]he right of self-defense is based upon the appearance of imminent
peril to the person attacked.” (People v. Perez (1970) 12 Cal.App.3d 232, 236.) The
prosecution has the burden of proving beyond a reasonable doubt that the killing was not


                                              15
justified by defendant’s need to defend himself. (Humphrey, at p. 1103; People v. Lee
(2005) 131 Cal.App.4th 1413, 1429.)
       Here, Argueta testified that he saw Hurtado swing the bar at defendant’s arm and
deliver a glancing blow as defendant was reaching over the top of the gate in order to
enter the property. After the gate opened, defendant threw himself to the ground and
knelt on one knee. Argueta then saw defendant jump from a crouching position toward
Hurtado, embrace him, and say “I got him. I got him.” Prior to the stabbing, Argueta
observed that Hurtado did not hold the bar in a threatening position. This observation
was corroborated by Dr. Hain’s testimony that Hurtado’s arms could not have been raised
above the level of the wound when he was stabbed. Thus, there was substantial evidence
to support the jury’s conclusion, beyond a reasonable doubt, that defendant did not kill
Hurtado in self-defense because he could not have reasonably believed that he was in
imminent danger of being killed or suffering great bodily injury.
       Defendant relies on Alejandro’s testimony that Hurtado repeatedly hit defendant
with the steel bar and Dr. Posey’s testimony that a blow from the bar could have easily
been fatal. However, defendant fails to acknowledge that “ ‘it is the exclusive province of
the . . . jury to determine the credibility of a witness . . . .’ ” (Lee, supra, 51 Cal.4th at
p. 632.) Here, the jury was entitled to determine that Argueta was more credible than
Alejandro.
       Defendant next asserts that Argueta’s testimony was “particularly contradictory on
the point of whether he saw the stabbing itself,” and could not testify regarding what
occurred between him and Hurtado immediately before the stabbing. Thus, he contends
that “Argueta’s testimony did not satisfy the prosecution’s burden of proving that [he] did
not stab Hurtado in response to an actual, credible, imminent threat of being seriously
injured or killed by the steel bar that Hurtado was holding.”
       In response to the prosecutor’s question of whether he could “still see what was
going on around” him when he looked towards defendant’s companions, Argueta testified
                                                16
that he could. He further testified: “I was on the side in front of the garage. So when I
went in front, I started raising my sleeves. That’s when I said, What do you want, What’s
wrong? That’s when I turned around and saw that [defendant] jumped and grabbed him.
And he said, I got him, I got him.” The following colloquy then occurred: “Q. I’m
asking you to focus on just the moments before that. You had stated that you saw
[Hurtado] turn towards you, and as [Hurtado] was turning towards you is when
[defendant] was coming out of that crouching position; does that accurately say what had
been said earlier? [¶] A. That’s correct. [¶] Q. Okay. That’s the time frame I’d like to
focus on. [¶] All right. So [Hurtado] turns towards you; is that correct? [¶] A. Yes.
[¶] Q. Where is the bar? [¶] A. In his hand, of [Hurtado]. [¶] Q. In what position?
[¶] A. Down, like in the middle. [¶] Q. So not raised up, but not down on the ground?
[¶] Was he holding it -- or take that back. Strike that. [¶] Did you see it as threatening,
the way he was holding it, at that particular time? Did it look threatening to you? [¶] A.
He wasn’t threatening. If he had been threatening, he would have been hitting. [¶] Q.
So as [Hurtado] turns towards you, is this the time that the Defendant comes out of his
crouching position? [¶] A. It’s true, yes.”
       Defendant relies on a different portion of Argueta’s testimony. “Q. So describe
this to us, this jump. [¶] A. When he jumped, when [defendant] jumped, at that moment
he knew where to hit [Hurtado]. [¶] Q. Had anyone advanced towards the other? [¶] A.
Everything is the same as I told you just a minute ago. He was crouching, and at the
moment when he saw that I was arguing with the others, [Hurtado] just turned to see
where the others were; and that’s when he had the opportunity to jump up, and I think
that’s when he got him.” (Italics added.) Defendant argues that this testimony and
particularly the reference to “I think” “make it clear that what [Argueta] was
demonstrating was merely their positions prior to the moment when he turned away to
confront [defendant’s] three friends,” and thus Argueta “did not see what happened


                                              17
between [defendant] and Hurtado between the moment when he turned away and the
moment that he turned back.”
       However “ ‘[t]o warrant rejection of the statements given by a witness who has
been believed by the [trier of fact], there must exist either a physical impossibility that
they are true, or their falsity must be apparent without resorting to inference or
deductions.’ ” (People v. Barnes (1986) 42 Cal.3d 284, 306.) Here, no such
circumstances exist, and thus this court cannot reject Argueta’s testimony that he saw that
Hurtado did not threaten defendant with the steel bar immediately before he was stabbed.
       Defendant also argues that nothing in the record “suggests that it was unreasonable
for [defendant] to believe that Hurtado would continue swinging the bar until he
succeeded in breaking [defendant’s] arm, or worse, if [defendant] did not stop him.” The
jury was entitled to consider other aspects of the confrontation, which defendant has
chosen to ignore. “A person does not have the right to self-defense if he provokes a fight
or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472; see
Fraguglia v. Sala (1936) 17 Cal.App.2d 738, 743-744.) Here, defendant had been told
repeatedly not to come to the Hurtado property, and he was on the other side of the gate
and attempting to remove the nails in the gate latch when Hurtado “brushed his forearm”
with the bar. Under these circumstances, the jury could have reasonably concluded that
defendant provoked a fight with Hurtado so that he could use his knife.
       Defendant next contends that “it is just as likely that [defendant’s] crouching
posture indicated a submission and a desire to stop fighting, and it is just as likely that his
embrace of Hurtado was an attempt to immobilize Hurtado’s arms and stop the attack
with the steel bar, as it is that either of those facts indicated [defendant’s] intention to
commit an unprovoked attack.” However, the jury could have reasonably concluded that
it was the latter. (Gonzales, supra, 52 Cal.4th at p. 294.)
       Defendant also focuses on Dr. Hain’s testimony that Hurtado’s “hands [were] not
over his head” when he was stabbed. He argues that “[b]ecause Hain never addressed the
                                               18
question of whether Hurtado could have had one hand raised consistently with the
damage to his sweatshirt, his testimony does not constitute proof that Hurtado was not
preparing to bring the bar down on [defendant’s] skull when [defendant] stabbed him.”
Defendant, however, is speculating as to whether Dr. Hain’s testimony would have been
different if he had addressed this question.
                                  4. Imperfect Self-defense
       Defendant contends that the evidence was insufficient to prove that he did not act
in imperfect self-defense.
       “Imperfect self-defense is the actual, but unreasonable, belief in the need to resort
to self-defense to protect oneself from imminent peril. [Citations.] When imperfect self-
defense applies, it reduces a homicide from murder to voluntary manslaughter because
the killing lacks malice aforethought. [Citations.]” (People v. Vasquez (2006) 136
Cal.App.4th 1176, 1178.) “Imperfect self-defense obviates malice because that most
culpable of mental states ‘cannot coexist’ with an actual belief that the lethal act was
necessary to avoid one’s own death or serious injury at the victim’s hand. [Citations.]”
(People v. Rios (2000) 23 Cal.4th 450, 461.) It is the prosecution’s burden to prove
beyond a reasonable doubt that a defendant did not act in imperfect self-defense. (Id. at
p. 462.)
       Here, there was substantial evidence from which the jury could have reasonably
concluded that defendant did not have an actual belief that the stabbing was necessary to
avoid his own death or serious injury. Defendant fled the scene and thus demonstrated a
consciousness of guilt when considered with other evidence. (People v. Bradford (1997)
14 Cal.4th 1005, 1055.) Shortly thereafter, defendant told police that he knew Hurtado
and their relationship was “cool.” Though the officer told him that a metal bar had been
found and he did not know whether this was “a self-defense type of incident,” defendant
never indicated that he had acted in self-defense. Defendant also denied being hit by a
pipe. Thus, there was substantial evidence to support the jury’s finding.
                                               19
       Defendant argues, however, that he was unsophisticated about the law and he
feared that if he did not leave the scene, Argueta would attack him. He also lied to the
police based on his fear that “if he told the truth, he would be arrested, tried, and
convicted of first-degree murder, self-defense or no self-defense. . . .” However, the jury
could have reasonably rejected these arguments to explain his conduct and concluded that
his flight and statements to the police established that he did not have an actual belief in
the necessity of stabbing Hurtado. (Gonzales, supra, 52 Cal.4th at p. 294.)
                                      5. Heat of Passion
       Defendant argues that the evidence was insufficient to prove that he did not act in
the heat of passion.
       “The mens rea element required for murder is a state of mind constituting either
express or implied malice. A person who kills without malice does not commit murder.
Heat of passion is a mental state that precludes the formation of malice and reduces an
unlawful killing from murder to manslaughter. Heat of passion arises if, ‘ “at the time of
the killing, the reason of the accused was obscured or disturbed by passion to such an
extent as would cause the ordinarily reasonable person of average disposition to act
rashly and without deliberation and reflection, and from such passion rather than from
judgment.” ’ [Citation.] Heat of passion, then, is a state of mind caused by legally
sufficient provocation that causes a person to act, not out of rational thought but out of
unconsidered reaction to the provocation. While some measure of thought is required to
form either an intent to kill or a conscious disregard for human life, a person who acts
without reflection in response to adequate provocation does not act with malice.”
(People v. Beltran (2013) 56 Cal.4th 935, 942 fn. omitted.) “Provocation is adequate
only when it would render an ordinary person of average disposition ‘liable to act rashly
or without due deliberation and reflection, and from this passion rather than from
judgment.’ [Citation.]” (Id. at p. 957.)


                                              20
       Here, defendant went to the Hurtado property to fight him, but left after Argueta
prevented him from entering. When defendant did not have the opportunity to fight
Hurtado on his second visit, he returned 10 to 15 minutes later. At this third visit, as
defendant was trying to remove the nails in the gate to enter the property, Hurtado swung
the steel bar and grazed his forearm. After the gate opened, defendant entered the
property and knelt on one knee with his knife concealed by his sweater sleeve. At this
point, Hurtado was not holding the steel bar in a threatening manner. Based on this
record, the jury could have reasonably found that defendant’s reason was not disturbed by
a passion that would have rendered a person of average disposition to act rashly and
without deliberation and reflection.
       Defendant’s reliance on Alejandro’s testimony to support his argument is
misplaced. As previously stated, it was the jury’s role to determine the credibility of the
witnesses, and it could have reasonably found that Alejandro’s testimony was not
credible. (Lee, supra, 51 Cal.4th at p. 632.)4


                                    B. CALCRIM No. 226
       Defendant argues that his federal constitutional rights to due process and trial by
jury were violated by the trial court’s failure to instruct the jury regarding the bias of a
witness who was promised a benefit in exchange for his testimony.
       Here, the trial court instructed the jury pursuant to CALCRIM No. 226, which set
forth the factors that the jury could consider in determining the credibility of the

4
        Defendant also fails once again to acknowledge that this court must draw all
inferences in favor of the judgment in reviewing the sufficiency of the evidence.
(Gonzales, supra, 52 Cal.4th at p. 294.) The jury could have reasonably concluded that
defendant was not “unexpectedly attacked” by Hurtado, but that Hurtado delivered
merely a glancing blow to defendant as defendant removed the nails from the gate latch.
The jury could also have reasonably concluded that defendant’s concealment of the knife
in his sweater sleeve indicated that he did not want Hurtado to know he had a knife with
which he intended to stab him.
                                              21
witnesses. However, the trial court did not instruct the jury with the following factor:
“Was the witness promised immunity or leniency in exchange for his or her testimony?”
        “A trial court has a sua sponte duty to ‘instruct on general principles of law that
are closely and openly connected to the facts and that are necessary for the jury’s
understanding of the case,’ including instructions relevant to evaluating the credibility of
witnesses. [Citation.]” (People v. Blacksher (2011) 52 Cal.4th 769, 845-846.) Penal
Code section 1259 provides that an appellate court may “review any instruction given,
refused or modified, even though no objection was made thereto in the lower court, if the
substantial rights of the defendant were affected thereby.”
        In evaluating a witness’s credibility, the jury may consider “[t]he existence or
nonexistence of a bias, interest, or other motive.” (Evid. Code, § 780, subd. (f).) The
trial court must instruct the jury with all of the factors in CALCRIM No. 226 that are
relevant based on the evidence. (People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-
884.)
        Here, Argueta testified: “I would like for everything to be fixed well, that justice
be done correctly because I’m, like, not going to be here in California. That’s why I want
justice to be done before I leave.” Near the end of his direct examination, the prosecutor
and Argueta had this exchange: “Q. Mr. Argueta, when we first began your testimony
this morning, you had said that you wanted to tell your statement in Spanish because you
might not be in California. [¶] Do you remember saying that? [¶] A. Yes. [¶] Q. And
do you have a hold on you with I.N.S? [¶] A. Yes. [¶] Q. And are you scheduled for
deportation? [¶] A. They’re waiting for me when I finish this. I didn’t even know I was
going to come here. I only came here because . . . on the 22nd of August my mother died
here. [¶] And were you allowed to come to Hollister to have a last visit with your mom?
[¶] A. Yes, they gave me permission to come and . . . be with her for about a half hour.
[¶] Q. And since then have you remained in Hollister? [¶] A. No, they took me to
Yuba, Yuba City, Sacramento, here by Sacramento. [¶] Q. Was that after you came to
                                              22
visit your mom or before? [¶] A. Both things, it was before and after because they were
taking me there. [¶] Q. And you had stated that you had seen some paperwork . . . when
you were in custody up in Washington? [¶] A. Yes, they took me there because my
worker, yeah, Memo, the one in San Francisco, he told me that he didn’t even know that
they were going to bring me here. And after he told me, They want you in Hollister, he
said, You’re going to go to Hollister; finishing in Hollister, you’re coming back, and then
I’ll send you to Tacoma, Washington, again . . . . [¶] Q. Are you aware of the
paperwork that was filed by my office, by the district attorney’s office, in order to keep
you here to testify? [¶] A. It wasn’t very important, the paper she sent. Because, here,
this is state; and, there, that’s federal. [¶] Q. Now, are you testifying to gain any
advantage to be able to stay in California? [¶] A. No. Why? I’m already deported. In
any case, I have family there and everything. My worker said in five years I can ask for a
VISA and come back. I’m fine with immigration now. [¶] Right now I am filing or
petitioning to the 9th Circuit, they’re waiting for a law to start in immigration, starting the
law in immigration. I have like 60 percent, like, possibility of getting permission there--”
       Huggins testified that he interviewed Argueta at an immigration detention facility.
Argueta told him that “he lost his appeal” and the prosecuting attorney “was helping him
with the appeal letter.” Argueta explained to Huggins that “she wrote a letter on his
behalf . . . [¶] . . . [t]o help him obtain a U-VISA.” “As [Argueta] tried to explain it to
[Huggins], he wasn’t quite clear; but he just told me it was like getting asylum for
himself.” Huggins understood Argueta’s definition of asylum meant that he would stay
here until he testified at defendant’s trial. Huggins further testified: “He believed that’s
what it meant to him, that he was going to be staying here in the United States coming
back to San Benito County to testify and then getting out to go see his dying mother.”
After speaking with Argueta, Huggins obtained general information “about the procedure
he was talking about and what the U-VISA was all about.” He learned that “paperwork”


                                              23
was required from the district attorney’s office in San Benito County to ensure Argueta’s
presence at defendant’s trial.
       During the defense case, trial counsel and Argueta had this exchange: “Q. Did
you tell Investigator Huggins if anyone was helping you with your deportation problems?
[¶] A. Yes. [¶] Who was helping you? [¶] A. Well, not that they’re helping me, but
my attorney sent a letter here to Candace because I was already deported. But they can’t
deport anyone if they have a court appearance coming up; so the person has to go to court
first, then get deported.”
       Thus, the record established that the prosecutor sent a letter to federal immigration
authorities to ensure that Argueta not be deported until after he had testified at
defendant’s trial. Based on this evidence, no one could reasonably conclude that Argueta
was promised immunity or leniency for his testimony. Accordingly, the trial court did
not err in its jury instructions pursuant to CALCRIM No. 226.


                                 C. Jury Instructions on Murder
       Defendant argues that the trial court erred in failing to instruct the jury pursuant to
CALCRIM No. 522 that subjective provocation or unreasonable heat of passion can
reduce first degree murder to second degree murder. Thus, he argues that he was denied
his federal constitutional rights to due process, a fair trial, and to present a defense
because the instructions that were given lessened the prosecution’s burden of proof.
       “ ‘[T]he existence of provocation which is not “adequate” to reduce the class of the
offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the
defendant formed the intent to kill upon, and carried it out after, deliberation and
premeditation.’ [Citations.]” (People v. Wickersham (1982) 32 Cal.3d 307, 329,
overruled on another ground in People v. Barton (1995) 12 Cal.4th 186, 200-201.)
CALCRIM No. 522 provides that provocation that is insufficient to reduce a murder to


                                              24
manslaughter may reduce a murder from first to second degree.5 This instruction
pinpoints a defense theory and must be given only on request and when it is supported by
substantial evidence. (People v. Rogers (2006) 39 Cal.4th 826, 877-878.) Though
requested by trial counsel, the trial court did not give CALCRIM No. 522 in the present
case. When the trial court errs by failing to give a requested defense pinpoint instruction,
we must determine whether it is reasonably probable that the jury would have returned a
different verdict absent the error. (People v. Earp (1999) 20 Cal.4th 826, 886-887
(Earp).)
       Here, the evidence of provocation was very weak. Defendant had been told
repeatedly not to come to Hurtado’s house. When defendant was attempting to trespass
onto the Hurtado property on his third visit, Hurtado brushed his forearm with a steel bar.
When defendant entered the property and threw himself to one knee, Hurtado did not
threaten him with the bar. After the stabbing, defendant said, “I got him, I got him” and
shortly thereafter denied any problems with Hurtado. Thus, defendant’s behavior was
inconsistent with someone who had stabbed another because he had acted rashly and
under the influence of an intense emotion that obscured his reasoning or judgment.
       More importantly, the jury necessarily resolved the issue of defendant’s mental
state under other properly given instructions. The trial court instructed the jury pursuant
to CALCRIM No. 521, which required it to determine the degrees of murder, if it decided
that defendant had committed murder. The trial court instructed the jury that in order to
find that defendant committed first degree murder it was required to find whether the
prosecutor proved beyond a reasonable doubt that defendant acted willfully and with


5
       CALCRIM No. 522 states: “Provocation may reduce a murder from first degree
to second degree [and may reduce a murder to manslaughter]. The weight and
significance of the provocation, if any, are for you to decide. [¶] If you conclude that the
defendant committed murder but was provoked, consider the provocation in deciding
whether the crime was first or second degree murder. [Also consider the provocation in
deciding whether the defendant committed murder or manslaughter.]”
                                             25
premeditation and deliberation. The trial court then defined these terms: “The defendant
acted willfully if he intended to kill. The defendant acted deliberately if he carefully
weighed the considerations for and against his choice and knowing the consequences
decided to kill. [¶] The defendant acted with premeditation if he decided to kill before
committing the act that caused death. The length of time a person spends considering
whether to kill does not alone determine whether the killing is deliberate or premeditated.
[¶] The amount of time required for deliberation and premeditation may v[a]ry from
person to person and according to the circumstances. A decision to kill made rashly,
impulsively or without careful consideration is not deliberate and premeditated. [¶] On
the other hand, a cold, calculated decision to kill can be reached quickly. The test is the
extent of the reflection; not the length of time.” The jury was also instructed that, in the
event that it did not unanimously agree that the prosecution had met its burden, the killing
was second degree murder and it was required to find that defendant was not guilty of
first degree murder. Thus, the jury was aware that if defendant acted rashly or
impulsively in stabbing Hurtado, he was guilty of second degree murder. However, by
convicting defendant of first degree murder, the jury rejected the conclusion that
defendant was subjectively provoked to the extent that he could not premeditate and
deliberate. Accordingly, it is not reasonably probable that the jury would have returned a
verdict of second degree murder if it had been instructed with CALCRIM No. 522.
(Earp, supra, 20 Cal.4th at p. 887.)


                            D. Ineffective Assistance of Counsel
       Defendant contends that he was deprived of his federal constitutional right to the
effective assistance of counsel in numerous respects.
                                       1. Legal Principles
       “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
                                             26
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right
“entitles the defendant not to some bare assistance but rather to effective assistance.”
(Ibid.) But the “Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540 U.S.
1, 8.)
         “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.
[Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93 (Benavides).) However,
“ ‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and failed to
provide one, or unless there simply could be no satisfactory explanation,’ the claim on
appeal must be rejected.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)
                             2. Cross-examination of Argueta
         Defendant contends that trial counsel failed to effectively cross-examine Argueta,
because she did not impeach him with discrepancies between his testimony at trial and
his testimony at the preliminary hearing.
         At the preliminary hearing, Argueta demonstrated the relative positions of Hurtado
and defendant immediately before the stabbing. Argueta portrayed defendant and Patrick
Palacios, the prosecutor, portrayed Hurtado. The trial court described the positions as
follows: “Mr. Palacios and Mr. Argueta are facing each other. Mr. Argueta is on, looks
like, his right knee with his left knee up, and he’s in a kneeling position. Mr. Palacios is
standing upright, portraying the bar in his right hand, his right hand extended basically
skyward.”
                                             27
       At trial, Argueta repeated the demonstration in which he portrayed defendant and
Palacios portrayed Hurtado. Argueta “was taking the same crouching position with the
forearm up, similar to around his eyes or forehead.” The record does not reflect the
position taken by Palacios, only that Argueta instructed him to “[j]ust raise the right hand
only, like this. He had the bar like that and he was facing the front.”
       During her cross-examination of Argueta at trial, trial counsel asked him whether
“the demonstration that [he] did in court at the preliminary hearing on September 25,
2008, was that the same demonstration that [he] did in court yesterday?” Argueta
answered affirmatively.
       During the defense case, trial counsel presented testimony from LaForge, who
represented defendant at his preliminary hearing. LaForge testified regarding the
demonstration of the relative positions of defendant and Hurtado, which was presented at
the preliminary hearing by Argueta and Palacios. According to LaForge, Palacios, who
portrayed Hurtado, held the simulated steel bar “straight up.” The trial court also
admitted into evidence the pages from the preliminary hearing transcript in which the
relative positions of Argueta and Palacios were described.
       During closing argument, trial counsel focused on the discrepancy between
Argueta’s preliminary hearing description of where Hurtado held the steel bar and his
trial description. “And remember Carlos Hurtado? It’s really hard for me to sit at this
counsel table with Carlos Hurtado -- I’m sorry -- Carlos Argueta. He stood up there with
Deputy District Attorney Patrick Palacios -- I’m so mad. I’m sorry. I’ll slow down. [¶]
When he gave you that demonstration and Patrick Palacios came into this courtroom and
stood in front of you and he said the demonstration at the preliminary hearing was that
[Hurtado] had the bar like this. He showed you a limp wrist. That was totally false. That
was totally a lie. [¶] That’s why I brought Greg LaForge in here yesterday to tell you
what happened at that preliminary hearing. Greg told you Patrick Palacios is the same
guy that stood in front of you with the limp wrist, with the chrome bar. That’s what he
                                             28
did in 2008 in front of Judge Sanders. [¶] He stood with it like this. I don’t know why
he did that. I don’t know why he came in here and told you that, but that’s a lie. And
you’re going to see the transcript, and it’s in evidence. [¶] And you can look at this.
Judge Sanders read into the record what the demonstration was at the preliminary
hearing. And that little charade that they put out here in front of you, that was a lie.”
       Defendant argues that trial counsel’s failure to confront Argueta directly
constituted incompetence, because she “did not provide the jury with any basis for
deciding which demonstration was the accurate one.” He asserts that trial counsel
“could, and did, repeatedly claim that the demonstration at the preliminary examination
was accurate and the one at trial was ‘totally a lie,’ but as the court instructed the jury,
‘[n]othing the attorneys say is evidence.’ [Citations.] That instruction explicitly, and
correctly, precluded the jury from taking [trial counsel’s] word for it that the hand-over-
head demonstration at the preliminary examination represented what actually happened
and the ‘limp wrist’ demonstration at trial was ‘totally a lie.’ The jury could not conclude
that Argueta had lied at trial and told the truth at the preliminary examination simply on
counsel’s say-so.”
       Here, trial counsel may have made a tactical decision not to cross-examine
Argueta about the preliminary hearing demonstration, because she did not know what his
response would be. He could have testified that the demonstration at trial was the correct
one and explained that he had not been focusing on the position of Palacios’s hand during
the demonstration at the preliminary hearing. In any event, we disagree with defendant
that the jury had no basis for determining that Argueta had either lied at the preliminary
hearing or was lying at trial, and thus was not a credible witness. LaForge’s testimony
and the admission of the preliminary hearing transcript established that the demonstration
at the preliminary hearing was different from the one presented at trial. This evidence
served as the basis for trial counsel’s argument that Argueta lied at trial. Moreover, the
trial court instructed the jury regarding the prior statements of witnesses: “You’ve heard
                                              29
evidence of statements that a witness made before the trial. If you decide that the witness
made that or those statements, you may use that or those statements in two ways; one, to
evaluate whether the witness’s testimony in court is believable; and, two, as evidence that
the information in that or those earlier statements is true.” Thus, the jury had a basis for
concluding that Argueta lied at either the preliminary hearing or at trial, and concluded
that his demonstration at trial was the truth.
       Defendant next contends that trial counsel rendered ineffective assistance by
failing: (1) to cross-examine Argueta at trial regarding his preliminary hearing testimony
that he had not seen the stabbing; and (2) to impeach his trial testimony with a police
report which included statements by Argueta that he had not seen the stabbing.
       Defendant focuses on the following colloquy at the preliminary hearing: “Q. Did
you see Mr. Hurtado get stabbed? [¶] A. Huh? [¶] Q. Did you see him get stabbed?
[¶] A. Yeah. I could see, like, you know, he had him here. [¶] Q. Okay. Now, you
talked to the officers that night; correct? [¶] A. (Nods head.) [¶] Q. You were being
truthful with the officers; correct? [¶] A. Yeah. [¶] Q. You wouldn’t have lied to the
officers that night; right? [¶] A. No. [¶] Q. So everything you told the officers that
night was true and to the best of your recollection; correct? [¶] A. Yeah. [¶] Q. So if
an officer stated in her report that Carlos stated that he did not witness a stabbing, but
heard Alex say, ‘They stabbed me,’ that would be correct? Right? [¶] A. What? [¶] Q.
I’m sorry. That Carlos stated he did not witness the stabbing, but heard Alex say ‘They
stabbed me,’ do you remember telling Officer Pacheco that? [¶] A. ‘They’? [¶] Q.
Yes. [¶] A. ‘They’? No. [¶] That would be wrong if she had that in her report? [¶]
Yeah. ‘They’? Because, you know, it wasn’t like people stab him, it’s just like one
people. [¶] Q. That would be a wrong statement if Officer Pacheco put that in her
report? [¶] A. ‘They’? [¶] Q. Do you remember telling Officer Pacheco that you
observed Alex and my client pushing each other? [¶] A. They weren’t pushing each
other. [¶] Q. That’s wrong too? [¶] A. No, that’s wrong too, because I never say
                                                 30
pushing each other. [¶] Q. So if that’s in an officer’s report, that is wrong; is that
correct? [¶] A. Yeah.”
       Here, one could reasonably interpret Argueta’s preliminary hearing testimony as
establishing that he did see the stabbing and that the police officer was mistaken in
stating that he did not see the stabbing. Thus, trial counsel could have reasonably
concluded that this evidence would not have benefited the defense. Moreover, even
assuming it was incompetence for failing to introduce this evidence, defendant has failed
to establish prejudice. During her cross-examination of Argueta at trial, trial counsel
asked: “And you told us yesterday that right before the stabbing, you turned your back
on [defendant] and [Hurtado] and you were looking at the men near the mailbox; is that
true?” Argueta answered affirmatively. Since Argueta’s own testimony impeached his
prior testimony that he had seen the stabbing, it is not reasonably probable that the result
would have been more favorable to defendant if trial counsel had impeached Argueta
with his preliminary hearing transcript or the police report.
       Defendant also argues that trial counsel rendered ineffective assistance, because
she did not confront Argueta with his preliminary hearing testimony that he saw Hurtado
swing the steel bar twice at him. He argues that “[b]ecause the sole defense theory was
perfect self-defense, it was crucially important that the jury understand the factual basis
for [his] belief that if he did not use deadly force to stop Hurtado’s attack, Hurtado would
continue swinging the bar until he managed to seriously injure or kill [him].”
       At the preliminary hearing, Argueta testified that when defendant “tried to open
the gate,” Hurtado “got mad, and he went, you know, to him, like, ‘What the fuck?’ And
[he] tried to open the gate, you know, and [Hurtado], you know, hit him in the hand,”
with “a smooth iron bar.” After defendant reached over the gate, Hurtado told him to
leave. At that point, defendant responded that he wanted to fight. Hurtado then “tried to
hit him again, but he don’t. He just like, you know, he tried and hit the fence. He just hit


                                             31
the fence, you know, and then, you know, he started to leave, but he was, like, all mad
and --”
       Even assuming that trial counsel’s performance was deficient for failing to elicit
testimony from Argueta at trial that Hurtado tried to hit defendant twice, and impeaching
him with his preliminary hearing testimony if he denied it, it is not reasonably probable
that the jury would have returned a more favorable verdict for defendant if it had learned
Hurtado hit defendant once and missed hitting him once.
                           3. Cross-examination of Dr. Hain
       Defendant contends that trial counsel’s cross-examination of Dr. Hain was
deficient.
       Dr. Hain testified that Hurtado could not have had his hands over his head
immediately before he was stabbed, because “when the arms are raised up, the item of
clothing, the outer clothing rises up with the shoulders; and so you would expect the stab
wound to be much lower. So the higher the arms get, the . . . lower the stab wound would
be on the outer clothing.” Trial counsel’s cross-examination of Dr. Hain consisted of the
following: “Q. Good afternoon, Mr. Hain. [¶] A. Good afternoon. [¶] Q. Other than
the stab wounds and medical interventions, there were no other injuries on Mr. Hurtado’s
body; is that correct? [¶] A. As I recall, I don’t think there were. There were none that I
observed. That’s correct. [¶] Q. Thank you. And after this wound, are you saying
Mr. Hurtado would have had approximately ten seconds of consciousness after suffering
this wound? [¶] A. Yes, I believe so. [¶] Q. Thank you. Nothing further.”
       Defendant argues that “the destructive force of Hain’s testimony is illusory,
because he did not address the question of whether Hurtado could have had one hand
over his head at the time he was stabbed.” (Italics omitted.) He also points out that trial
counsel did not “probe into how Hain developed his theory of determining arm position
of a stabbing victim by analyzing the tears on the outer clothing, whether this analysis
was accepted by other practitioners in his field, whether it was confirmed experimentally
                                             32
or published in any peer-reviewed journal, whether it was equally applicable to all types
of outer garments, whether the effect might be less pronounced or totally absent in the
case of a loose or baggy outer garment, or whether he had performed the experiment with
Hurtado’s actual body and sweatshirt or merely extrapolated from personal experience
with his own clothing, as he did in court. . . . [‘[A]s you can see on me, . . . when I raise
my arms, my items of clothing, which of court is different from [Hurtado’s], goes up
maybe almost a foot, ten inches’].”
       Defendant has failed to establish that a reasonably competent attorney would have
cross-examined Dr. Hain regarding these issues, because he speculates that Dr. Hain’s
responses would have been favorable to the defense. Defendant argues, however, that
even if Dr. Hain had claimed that the same analysis applied to raising one arm and that
his testimony was based on a well-established forensic technique, trial counsel’s cross-
examination on these issues would have “would have emphasized to the jury that they
were not required to accept Hain’s conclusion at face value merely because he had been
designated an expert.” But the trial court instructed the jury that it was “not required to
accept [expert opinions] . . . as true and correct” and that it could “disregard any opinion”
that it found “unbelievable, unreasonable or unsupported by the evidence.” In addition,
the defense presented its own expert, Dr. Posey, who testified that based on the position
and path of the knife wound, Hurtado was leaning forward and “had to have his hand up
extended” when he was stabbed. Accordingly, we reject defendant’s argument.
                              4. Failure to Request an Admonition
       Defendant contends that trial counsel’s failure to request an admonition regarding
Argueta’s comments which drew attention to defendant’s failure to testify constituted
incompetence.
       During the prosecutor’s redirect examination of Argueta, the following exchange
occurred: “Q. Could you see anything coming out of the sleeve? [¶] A. No, I didn’t see
anything. [¶] Q. Did you see a knife? [¶] A. Well, after the incident happened, he’s
                                              33
the one who’s here present. [¶] Q. Mr. Argueta? [¶] A. He knows what he had done.”
Trial counsel then objected to Argueta’s answer on the ground that it was nonresponsive.
The trial court, without ruling on the objection, directed Argueta to answer the question.
Argueta responded, “At that instance, I did not see it.”
       Defendant acknowledges that Argueta’s response was not Griffin error. Griffin v.
California (1965) 380 U.S. 609 held that “the Fifth Amendment, in its direct application
to the Federal Government, and in its bearing on the States by reason of the Fourteenth
Amendment, forbids either comment by the prosecution on the accused’s silence or
instructions by the court that such silence is evidence of guilt.” (Id. at p. 615.) However,
defendant argues that Argueta’s comment was “highly prejudicial,” because “it imposed a
penalty on [him], in the form of the jury’s suspicion that he must have something to hide,
for exercising his constitutional privilege not to testify.” We disagree.
       In considering Griffin error claims, courts must first determine whether there is “a
reasonable likelihood that any of the comments could have been understood, within its
context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2 Cal.4th 629,
663.) Here, trial counsel could have reasonably concluded that it was not reasonably
likely that the jury understood Argueta’s comment that “[h]e knows what he had done” as
a comment on defendant’s failure to testify, particularly since the defense had not yet
presented its case. Moreover, the trial court instructed the jury at the conclusion of the
case pursuant to CALCRIM No. 355: “The Defendant’s Right Not to Testify. A
defendant has an absolute constitutional right not to testify. He or she may rely on the
state of the evidence and argue that the People have failed to prove the charges beyond a
reasonable doubt. [¶] Do not consider for any reason at all the fact that the defendant did
not testify. Do not discuss that fact during your deliberations or let it influence your
decision in any way.” We must presume that the jury followed the trial court’s
instructions. (People v. Thomas (2011) 51 Cal.4th 449, 487 (Thomas).) Accordingly, we
find that defendant has failed to establish that trial counsel’s performance was deficient.
                                             34
                 5. Failure to Object to Prejudicial and Irrelevant Evidence
       Defendant argues that trial counsel rendered ineffective assistance when she failed
to object to inadmissible evidence at trial.
       The prosecution introduced photographs of several items from defendant’s jail
cell, including a bed sheet, a writing tablet, and a beanie. The bed sheet had “187 Case
Prison” written on it in several places as well as “1985.” “187” is the Penal Code section
for murder and 1985 is the year that defendant was born. The writing table had “187
Case” and defendant’s nickname “Pepe” written on it. “187” was also written on the
beanie.
       Defendant contends that trial counsel’s failure to bring a motion to exclude this
“highly prejudicial” evidence was ineffective assistance of counsel.
       “ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) The trial court has discretion to exclude evidence “if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
       We disagree with defendant that this evidence was irrelevant. Evidence of
defendant’s possession of items that were marked with his date of birth, nickname, and
the Penal Code section for murder shortly after the killing was probative on whether he
committed a murder. Sergeant Pershall testified that defendant was “not necessarily”
confessing to the crime, but was “bragging.” Whether defendant was bragging about
being charged with murder or about having committed a crime was a factual question for
the jury to decide.
       Moreover, trial counsel could have reasonably concluded that the trial court would
not have excluded the evidence under Evidence Code section 352. “The prejudice which
exclusion of evidence under Evidence Code section 352 is designed to avoid is not the
                                               35
prejudice or damage to a defense that naturally flows from relevant, highly probative
evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the
defendant’s case. The stronger the evidence, the more it is “prejudicial.” The
“prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely
tends to evoke an emotional bias against the defendant as an individual and which has
very little effect on the issues. In applying section 352, “prejudicial” is not synonymous
with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) Here, the
evidence was relevant and did not tend to evoke an emotional bias against defendant.
Thus, trial counsel was not incompetent for failing to make a motion to exclude the
evidence when it would have been futile. (People v. Lewis (1990) 50 Cal.3d 262, 289.)
       Defendant also claims trial counsel was incompetent for failing to object to
Sergeant Pershall’s testimony indicating that defendant had previously been in jail.
       Sergeant Pershall testified that on the night of the stabbing, he went “to the county
jail to obtain a photo lineup” for use in obtaining eyewitness identification of defendant.
He had some difficulty in assembling the photo lineup. “A. I was unable to find a -- I
was informed of [defendant’s] current hair style, and I -- the difficulty was I could not
find a photo with his current hair style at jail. [¶] Q. . . . How do you prepare a photo
lineup? [¶] A. I take six photographs, cover up any identifying information, try to get
similar looking individuals, and put them together on a single sheet of paper. [¶] Q.
Were you able to find any similar with that style hair? [¶] A. With that hair style, no.
[¶] Q. So what did you do? [¶] A. So I used a photograph that they had with
[defendant’s] hair slicked back. [¶] Q. And were you able to find five similar? [¶] A.
Yes, I was.”
       Defendant argues that evidence that he “had been in jail was not probative of
anything relevant but was highly prejudicial, and was therefore subject to exclusion under
Evidence Code section 352. It was also evidence of prior bad conduct, and therefore
inadmissible to prove his conduct on the occasion relevant at trial. (Evid. Code, § 1101,
                                             36
subd. (a).)” Trial counsel could have reasonably concluded that an admonition would
have drawn more attention to the inadmissible evidence. In any event, since the
references were fleeting and not exploited by the prosecution, and given the evidence
against defendant, it is not reasonably probable that defendant would have received a
more favorable verdict if trial counsel had objected to Sergeant Pershall’s references to
looking for defendant’s photograph at jail and requested an admonition.
       Defendant next focuses on the testimony of Scalmanini, Hurtado’s sister.
       Scalmanini testified extensively about Hurtado and their family. Scalmanini was a
speech language pathologist and Hurtado’s other siblings had similarly respectable jobs.
Two of his siblings had master’s degrees and Hurtado was a high school graduate with
“some” college. Hurtado’s parents were long-time residents of Hollister and Hurtado
lived with them. Hurtado was a “really good brother,” “really nice,” “respectful” toward
the women in the family, and “had a good sense of humor.” Hurtado loved to read, and
particularly enjoyed a book called The Secret, which contained inspirational spiritual and
philosophical messages that Hurtado frequently discussed with Scalmanini. Scalmanini
and Hurtado had a “special bond” because she had taken care of him when he was a baby.
Hurtado was “fantastic” with his nieces and nephews. Scalmanini did not know
Hurtado’s friends and described his work history as “sporadic.” She and one of her
sisters learned of Hurtado’s death while attending a Pop Warner football event in Florida
and they were unable to return home immediately. A month before his death, the family
chartered a bus to attend a relative’s wedding where a family member took a photograph
of Hurtado. This photograph, along with one of Hurtado’s mother, was shown to the
jury. Hurtado also liked to watch television, listen to music, be with his friends, and
write in his journal.
       When the prosecutor started to ask Scalmanini if she had gone through Hurtado’s
journal and picked out some passages, trial counsel said, “Um -- ” at which point the trial


                                             37
court interrupted her and said, “[C]an we get to what we’re talking about here. There are
instructions that . . . [¶] . . . [¶] . . . we’re getting close to violating.”
       The prosecutor then asked Scalmanini whether she was aware of Hurtado’s drug
issues. She answered affirmatively, but she also testified that she had never seen him
take drugs or observed him while he was under the influence. Scalmanini and Hurtado
had also talked about him straightening out his life. The following exchange then
occurred: “Q. Is there anything of that that you can share? [¶] A. I have a journal, but
we did talk. We did talk on a few occasions about, you know, about getting better and
getting on the right track. [¶] Q. Just prior to his death, a month or so before his death,
had he talked to you about a career path? [¶] A. Yes. [¶] Q. And what was that? [¶]
A. He wanted to go into the National Guard. [¶] Q. And you had talked about his sense
of humor. Do you have an example? [¶] A. I do. [¶] Q. What is that? [¶] A. I have it
in -- well, in the journal. [¶] THE COURT: I get the impression, Counsel, that you’re
not listening to me. [¶] [THE PROSECUTOR]: I’m sorry, Judge. [¶] THE COURT:
You know what I’m talking about. Move on to the facts of this case. This is an appeal to
sympathy, which we all feel and which the jury is not allowed to consider in making their
decision, if you would read the instructions. Now, move on. [¶] [THE PROSECUTOR]:
Q. Okay. Do you know if [Hurtado] has ever attended any drug rehabilitation? [¶] A.
Not to my knowledge. [¶] [THE PROSECTUOR]: Thank you. I have nothing further.”
       Defendant argues that competent counsel would have inquired prior to trial as to
who Scalmanini was and why she was being called, insisted upon an offer of proof as to
what her testimony would be, and moved to exclude it. Alternatively, competent counsel
would have objected on relevance and Evidence Code section 352 grounds when
Scalmanini testified regarding her siblings’ occupations. Instead, trial counsel failed to
make any objections and did not move to strike the offending testimony. Defendant
argues that this testimony “inflamed the jury’s passions and prejudices” against him.


                                                  38
       Here, a competent counsel would have either moved to exclude the evidence prior
to trial or objected to it at trial on grounds of relevancy and undue prejudice. However,
in our view, defendant was not prejudiced by trial counsel’s performance. The jury was
informed at the time of Scalmanini’s testimony that it was not allowed to consider
sympathy in making its decision. Moreover, during her closing argument, trial counsel
reminded the jury that its decision could not be based on sympathy. “You know, the
Hurtados, I can tell by looking at those photos that they take pride in their home. And
[Scalmanini] told us they moved to this neighborhood because they believed it was a
good area. [¶] And I believe everything that [Scalmanini] told us about [Hurtado]. You
know, he was a good guy. He was loved. He loved his family. And, you know, and I
understand. And [Scalmanini] needed to come to court, and she needed for you to hear
that; and she needed to tell us that. And I understand. [¶] And a courtroom’s a horrible,
horrible place to have to come and share your pain. You know, we see it every day. But
the fact remains, [Hurtado] was high on meth that night when he came out swinging that
chrome bar at [defendant]. He was high on meth. He was sky high on meth. [¶] And as
Judge Schwartz told you, this is a court of law and no matter how tragic an incident is
and no matter how much sorrow it causes us, you know, we don’t make decisions based
on sympathy. We apply the law.” The trial court also instructed the jury at the
conclusion of the case: “Do not let bias, sympathy, prejudice or public opinion influence
your decision.” This court must presume that the jury followed the trial court’s
instructions. (Thomas, supra, 51 Cal.4th at p. 487.) Based on this record, it is not
reasonably probable that the outcome would have been more favorable to defendant but
for trial counsel’s failure to object to Scalmanini’s testimony. (Benavides, supra, 35
Cal.4th at p. 93.)
                      6. Failure to Object to Prosecutorial Misconduct
       Defendant next contends that trial counsel’s failure to object to prosecutorial
misconduct constituted ineffective assistance of counsel.
                                            39
       Captain Reynoso testified that when he contacted defendant on the morning of
December 4, 2007, defendant denied having any injuries and having been hit anywhere.
Based on this testimony, the prosecutor repeatedly stated during argument that defendant
had not been injured in the fight with Hurtado. The prosecutor also argued: “The
Defendant acted in imperfect self-defense if, one, the Defendant actually believed that he
was in [imminent] danger of being killed or suffering great bodily injury; and, two, the
Defendant actually believed that the immediate use of deadly force was necessary to
defend against the danger; but, three, at least one of those beliefs was unreasonable. [¶]
Belief in future harm is not sufficient no matter how great or how likely the harm is
believed to be. In evaluating the Defendant’s beliefs, consider all the circumstance[s] as
they were known and appeared to the Defendant. [¶] Great bodily injury means
significant or substantial physical injury. It is an injury that is greater than minor or
moderate harm. The People have a burden of proving beyond a reasonable doubt that the
Defendant was not acting in [im]perfect self-defense. If the People have not met this
burden, you must find the Defendant not guilty of murder. [¶] So given the facts, could
the Defendant actually believe he was in [imminent] danger of being killed or suffering
G.B.I.? Again, going back to the use of that bar. The use of the bar was not used in such
a manner that it meets this element. It was not used so that the Defendant feared being
killed or great bodily injury. His lack of injuries supports that.”
       Defendant contends that the prosecutor misstated the law by “suggest[ing] to the
jury that as a matter of law, petitioner could only have had a reasonable belief that
Hurtado was about to seriously injure or kill him, in the sense required as an element of
self-defense, if Hurtado actually did injure him.”
       It is misconduct for the prosecutor to misstate the law. (People v. Huggins (2006)
38 Cal.4th 175, 253, fn. 21.) “ ‘[I]t is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the prosecution from its prima
facie obligation to overcome reasonable doubt on all elements. [Citations.]’ [Citation.]”
                                              40
(People v. Hill (1998) 17 Cal.4th 800, 829-830, overruled on another ground in Price v.
Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
       Read in context, we do not interpret the prosecutor’s statements as claiming that
the imperfect self-defense doctrine applied, as a matter of law, only if defendant suffered
an injury. First, the prosecutor correctly stated the law on imperfect self-defense.
Second, the prosecutor then inferred from the evidence that defendant had no injuries that
Hurtado had not used the steel bar in a way which would have led defendant to actually
believe that he was in danger of being killed or suffering great bodily injury, and thus she
argued that the imperfect self-defense doctrine did not apply. Trial counsel could have
reasonably concluded that the prosecutor did not commit misconduct.
       Defendant next argues that trial counsel was incompetent for failing to object to
the prosecutor’s shifting of the burden of proof of the elements of voluntary
manslaughter.
       The prosecutor recited the elements of heat-of-passion voluntary manslaughter as
set forth in CALCRIM No. 570, and ended her recitation with: “The People have the
burden of proving beyond a reasonable doubt that the Defendant did not kill as a result of
a sudden quarrel or in the heat of passion. If the People have not met this burden, you
must find the defendant not guilty. [¶] So it sets up three elements that must be found,
that must be met, in order for the Defendant to be found not guilty.” The prosecutor then
referred to the facts of the case to argue: (1) the defendant was not provoked; (2)
defendant did not act rashly and under the influence of intense emotion that obscured his
reasoning or judgment; and (3) the provocation would not have caused a person of
average disposition to act rashly and without deliberation.
       Defendant argues that the prosecutor’s comment, “So it sets up three elements that
must be found, that must be met, in order for the Defendant to be found not guilty”
“interprets CALCRIM No. 570 as instructing that the defendant is guilty of murder by
default, and that the jury can only find him guilty of voluntary manslaughter instead if
                                             41
certain elements are found, met, or proved.” He thus claims that “[t]he unavoidable
implication was that the defendant was required to prove the elements of voluntary
manslaughter, which is the diametric opposite of what the law says.”
       We do not interpret the prosecutor’s summary as “turn[ing] the presumption of
innocence on its head.” The prosecutor forgot to state “of murder” after “not guilty”
when reciting the elements of heat-of-passion voluntary manslaughter. She did not argue
that the defendant had the burden of proving that he was not guilty or that he was not
presumed innocent. Moreover, she then argued that the facts did not establish the
elements of heat-of-passion voluntary manslaughter, which was the prosecution’s burden
to prove. Trial counsel did not render ineffective assistance for failing to object to the
prosecutor’s argument.
                    7. Omission of Crucial Evidence in Closing Argument
       Defendant claims that trial counsel omitted mentioning crucial testimony in her
closing argument.
       Defendant first points out that trial counsel failed to mention some of Alejandro’s
testimony: defendant told the others “[t]hat he was all scared, that he stabbed him”; that
Alejandro had seen Hurtado hit defendant with the steel bar more than once; and
defendant was “trying to block him” and “trying to cover himself.”
       Here, trial counsel argued that defendant stabbed Hurtado in self-defense and
focused on the forensic evidence and expert testimony, that is, the position of Hurtado’s
arm when he was stabbed and the lack of hilt marks on his body, the level of
methamphetamine in Hurtado’s body at the time of death, and the behaviors of chronic
users of methamphetamine. She also challenged the credibility of Argueta, Martinez, and
Dr. Hain and the failure of the police to adequately investigate the case. As to Alejandro,
she noted that he “told us that [he] saw [Hurtado] hitting [defendant] with the chrome
steel bar.” She also referred to Alejandro’s testimony that “they were scared in the
bedroom [of defendant’s house]” and defendant “said he stabbed him.” Trial counsel
                                             42
further emphasized that “the best witness to this stabbing [was] Alejandro Covian. Every
single thing Alejandro said made sense.” She then summarized Alejandro’s testimony
regarding the purpose of each of defendant’s visits to the Hurtado house that night.
Though Alejandro’s testimony that defendant was trying to prevent Hurtado from hitting
him was favorable to the defense, it was not essential for a jury’s understanding of the
defense theory. Accordingly, trial counsel was not incompetent for failing to emphasize
the above-referenced portions of Alejandro’s testimony.
       Defendant next focuses on trial counsel’s failure to reference Martinez’s favorable
testimony, that is, that “the confrontation between [defendant] and Hurtado went on for a
considerable time.”
       Martinez testified that she heard wrestling sounds by the gate. She looked around
the side door, and she saw that the gate was open, and Hurtado and defendant were
fighting. The fight then moved out to the driveway and front yard. However, Martinez
also testified that she saw Hurtado trying to hit defendant over the fence when he was
trying to open the gate, but she never saw Hurtado try to hit him after the gate was open.
When the two men were “both hugging on to each other,” Hurtado’s hand was not raised.
Martinez also denied ever hearing that night that defendant tried to purchase a bag of
methamphetamine from Hurtado or that defendant argued about the quality or quantity of
methamphetamine. She also denied seeing Hurtado give defendant a bag of
methamphetamine that night. In addition, Martinez testified that Hurtado called her that
night and asked her for drugs, and that she had been using methamphetamine for over 20
years. Moreover, Martinez’s testimony about when she arrived at the Hurtado house was
incorrect.
       Here, trial counsel emphasized the expert testimony that Hurtado was a chronic
methamphetamine user who was under the influence at the time of his death. Focusing
on the characteristics of chronic methamphetamine users, she argued that he was the
aggressor in the confrontation. Given that Martinez was also a chronic
                                            43
methamphetamine user and most of her testimony was not favorable to the defense, trial
counsel could have reasonably decided to reference only that portion of her testimony
which was corroborated by Argueta. Thus, trial counsel noted that both Argueta and
Martinez testified that Hurtado “brought that weapon into that fight,” and they heard
wrestling and defendant saying “Why are you hitting me? Why are you hitting me?”
Trial counsel then focused on Martinez’s addiction to methamphetamine and
Dr. Fithian’s testimony that chronic methamphetamine users have an altered sense of
reality, and pointed out the discrepancies in her testimony. Trial counsel might have
reasonably concluded that mentioning Martinez’s testimony as to the length of the fight
would have been easily rebutted by the prosecutor’s reliance on defense expert testimony.
Accordingly, defendant has failed to establish that trial counsel was incompetent in
failing to reference a portion of Martinez’s testimony.
              8. Failure to Address CALCRIM No. 3471 in Closing Argument
       Defendant contends that trial counsel’s failure to address CALCRIM No. 3471
during her closing argument “effectively withdrew the justification of self-defense from
the jury’s consideration,” and thus she rendered ineffective assistance. He further argues
that “[b]y failing to inform the jury why the prosecutor’s argument was wrong, [trial
counsel] eliminated any possibility that the jury would acquit [him] on the basis that he
had acted in self-defense,” which amounted to withdrawal of his only defense.
       The trial court instructed the jury with CALCRIM No. 3471: “Right to Self-
defense, Mutual Combat or Initial Aggressor. A person who engages in mutual combat
or who is the first one to use physical force has the right to self-defense only if, one, he
actually and in good faith tries to stop fighting; and, two, he indicates by word or conduct
to his opponent in a way that a reasonable person would understand that he wants to stop
fighting and that he has stopped fighting; and, three, he gives his opponent a chance to
stop fighting. [¶] If a person meets these requirements he then has a right to self-defense
if the opponent continues to fight. If you decide that the defendant started the fight using
                                              44
non-deadly force and the opponent responded with sufficient and sudden deadly force
that the defendant could not withdraw from the fight, then the defendant had the right to
defend himself with deadly force and was not required to stop fighting.”
       Here, the prosecutor stated “I think [CALCRIM No. 3471] probably best describes
the difference between the way the defense sees the case and the way the People see the
case.” After quoting CALCRIM No. 3471, she argued: “[Hurtado] stops. He’s standing
right there. He even looks over at [Argueta]. He’s not fighting. What about the
defendant? [¶] While [Hurtado] is standing there, the Defendant’s in a crouching
position. When [Hurtado] looks away, the Defendant comes up and stabs him. [Hurtado]
did not use sudden and deadly force. The use of that bar -- he did use the bar. I mean,
there’s no getting around it. He used that bar, but it was not sudden with deadly force.
[¶] Who used sudden and deadly force? The Defendant. The Defendant comes out of
the blue, in essence, has that knife hidden in his sleeve, comes out and stabs [Hurtado].
The Defendant is the one who is the aggressor.”
       Defendant argues that “[t]here was evidence that at some point prior to stabbing
Hurtado, [he] went down onto the ground in a kneeling position. . . . Kneeling is a
submissive posture which could easily be understood by a reasonable person to indicate
that the person doing it wanted to stop fighting. [Trial counsel] never mentioned in her
closing argument that [he] might well have intended to withdraw from the fight by
kneeling on the ground, and might therefore have been justified in defending himself
when Hurtado continued the fight by swinging the steel bar at him.” However, any
argument that defendant was trying to communicate that he wanted to withdraw from the
fight by kneeling on the ground was not supported by evidence of his concealment of a
knife inside his sweater sleeve. Thus, trial counsel may have made a reasonable tactical
decision not to respond to the prosecutor’s argument.
       Defendant also argues that trial counsel never mentioned Alejandro’s testimony
which established that Hurtado had hit him multiple times with the steel bar, and
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Dr. Posey’s testimony that the bar could crush a skill with the application of only
moderate force. As previously discussed, trial counsel argued that the evidence
established: Hurtado was a chronic methamphetamine user; Hurtado “came out of that
garage swinging that chrome bar” at defendant; prosecution witnesses heard defendant
ask “Why are you hitting me? Why are you hitting me?”; Hurtado’s arm was raised
when he was stabbed; and “[w]hen [defendant’s] down on the ground, he makes one
swift motion to stop the attack.” Thus, trial counsel portrayed the confrontation as
entirely one-sided and the only force used by defendant was a single stab while he was on
the ground and Hurtado was crouched above him swinging the steel bar. Though
referring to evidence that Hurtado hit defendant multiple times with the steel bar and that
the steel bar could have crushed defendant’s skull would have strengthened trial
counsel’s argument, it was not incompetence to fail to reference this evidence.
                 9. Failure to Address Lesser Charges in Closing Argument
       Defendant contends that trial counsel’s failure to discuss any lesser offenses
during her closing argument constituted ineffective assistance.
       The only defense theory which trial counsel argued in her closing argument was
perfect self-defense. Though the jury was instructed on second degree murder, imperfect
self-defense voluntary manslaughter, and heat-of-passion voluntary manslaughter, she did
not allude to these lesser offenses.
       Trial counsel’s decision of how to argue to the jury after the evidence has been
presented is an inherently tactical decision. (People v. Freeman (1994) 8 Cal.4th 450.
498.) “[D]eference to counsel’s tactical decisions in his [or her] closing presentation is
particularly important because of the broad range of legitimate defense strategy at that
stage. Closing arguments should ‘sharpen and clarify the issues for resolution by the trier
of fact,’ [citation], but which issues to sharpen and how best to clarify them are questions
with many reasonable answers. Indeed, it might sometimes make sense to forgo closing
argument altogether. [Citation.]” (Yarborough v. Gentry, supra, 540 U.S. at p. 6.)
                                             46
“Reversals for ineffective assistance of counsel during closing argument rarely occur;
when they do, it is due to an argument against the client which concedes guilt, withdraws
a crucial defense, or relies on an illegal defense.” (People v. Moore (1988) 201
Cal.App.3d 51, 57.)
       Here, trial counsel did not concede guilt, withdraw a crucial defense, or rely on an
illegal defense. Trial counsel could have argued both perfect self-defense and,
alternatively, that defendant was guilty of only lesser offenses than first degree murder.
However, given the deference to tactical decisions in closing argument, defendant has
failed to establish that trial counsel’s decision fell below the standard of professionally
reasonable conduct.
                                           10. Prejudice
       Defendant also contends that he was prejudiced by multiple acts of deficient
performance.
       We have concluded that trial counsel’s representation was deficient under
prevailing professional norms when she failed: (1) to ask Argueta whether, as he testified
at the preliminary hearing, he saw Hurtado swinging the steel bar twice; and (2) to
preclude the admission of Scalmanini’s testimony. The evidence against defendant was
extremely strong. Defendant twice indicated that he wanted to fight Hurtado, repeatedly
went to Hurtado’s house, stabbed him when his attention was diverted, and said, “I got
him, I got him,” as he fled the scene. During police interviews on the night of the killing,
defendant denied that he had been hit with a metal object and did not indicate that he had
acted in self-defense. Thus, even considering the prejudice cumulatively from trial
counsel’s deficient performance, there was no reasonable probability that defendant
would have received a more favorable verdict. (Benavides, supra, 35 Cal.4th at pp. 92-
93.)




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                                    E. Cumulative Error
       Defendant argues that he was deprived of a fair trial by the cumulative impact of
the instructional errors and the ineffective assistance of his trial counsel. We have either
rejected his claims or found an error to be harmless. Viewed cumulatively, we find that
any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th
514, 560.)


                                      III.   Disposition
       The judgment is affirmed.




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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




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