Filed 12/7/15 P. v. Lizarraga CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION FIVE


THE PEOPLE,                                                           B258261

         Plaintiff and Respondent,                                    (Los Angeles County
                                                                      Super. Ct. No. TA130084)
         v.

JESUS LIZARRAGA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin
D. Filer, Judge. Affirmed as modified.
         Gail Harper, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General,
for Plaintiff and Respondent.
                                  I. INTRODUCTION


       A jury convicted defendant, Jesus Lizarraga, of second degree murder. (Pen.
Code, § 187, subd. (a)1.) The jury found defendant personally used a firearm and
proximately caused the victim’s death. (§ 12022.53, subds. (b)-(d).) The jury found not
true a gang enhancement allegation under section 186.22, subdivision (b)(1)(C). The trial
court sentenced defendant to 40 years to life in state prison. We modify the judgment
and affirm it as modified.


                                  II. THE EVIDENCE


       On July 22, 2013, defendant, a 17-year-old gang member, shot and killed Leonel
Beltran, a rival gang member. Defendant was in rival gang territory visiting his mother.
Defendant was carrying a loaded weapon. Defendant’s gang affiliation was tattooed on
his face, a sign of his commitment to his gang. Defendant was on the way to his mother’s
house prior to the shooting. A rival gang member tried to run defendant over with a
truck. The shooting occurred shortly after defendant left his mother’s home.
       Defendant and a fellow gang member, Jessica Elizarrus, were near the intersection
of Main Street and Imperial Highway. The intersection was an area disputed by
defendant’s gang and two others. There was intense rivalry among the gangs. Mr.
Beltran, who was in a car, approached defendant from behind. According to defendant,
someone in the car disrespected and threatened him by saying, “Fuck [defendant’s
gang].” Defendant walked towards the car which was behind him. Defendant took out
his gun. Defendant shot Mr. Beltran three times. The bullets pierced Mr. Beltran’s head
and upper torso. His wounds were consistent with having been shot once from the front
and twice from behind. Mr. Beltran’s vehicle proceeded into a service station and




1      Further statutory references are to the Penal Code except where otherwise noted.

                                            2
crashed into a telephone pole. Mr. Beltran was unarmed. The jury viewed a surveillance
tape that captured the incident, albeit from a distance.
       Defendant discussed the shooting with two former gang members, Oscar Tovar
and Mark Torres. Detectives Manuel Castaneda and Nathan Kouri interviewed Mr.
Tovar on August 7, 2013, two weeks after Mr. Beltran was killed. Defendant and Mr.
Tovar had grown up together. Mr. Tovar referred to defendant as a “cousin.” Mr. Tovar
related the following. Rival gang members had tried to recruit defendant when he was
young. But Mr. Tovar had instead recruited defendant to join a different gang. Mr.
Tovar was formerly a member of that gang. The rival gang was out to get defendant.
The rival gang’s motive was that defendant had joined Mr. Tovar’s gang. Mr. Tovar told
the detectives there was a shooting and defendant “got” a rival gang member. Two or
three days after the incident, defendant telephoned Mr. Tovar. Defendant said: “Hey
man, I fucked up. I mean they [the rival gang] even looking for me right now ‘cause they
know I did it.” In this post-shooting conversation, defendant said: a car crept up next to
him; someone said, “Hey where are you from”; and he “lit ‘em up.” When interviewed
by detectives, Mr. Tovar described part of post-shooting conversation about the killing,
“[Defendant] got in the right with . . . he hit him . . . he didn’t even let him stand up, he
got him in the car.”
       Mr. Tovar and Mr. Torres both testified, reluctantly, for the prosecution. Mr.
Tovar was 21 at the time of trial. Mr. Tovar’s trial testimony was consistent with what he
had earlier told the detectives. At trial, however, Mr. Tovar added two additional facts.
Prior to the shooting, defendant went to his mother’s house. On the way, a rival gang
member tried to run defendant down with a truck. Further, when defendant left his
mother’s house, he was angry.
       As noted, Mr. Torres also testified on behalf of the prosecution. Mr. Torres spoke
to defendant after the shooting. Defendant said he had “got one of them” using a
derogatory phrase for the rival gang. Mr. Torres testified: “I remember [defendant]
telling me that they had pulled up on him and that they were in the car . . . talking shit to
him, dissing [defendant’s gang] in other words. And from there I guess one of the guys

                                               3
had came out of the car. I think [defendant] said [the rival gang member] was strapped
up, had a [gun] on him. . . . Banged on him and that’s when [defendant] retaliated by
him shooting at him.” Defendant told Mr. Torres someone in the car said, “Fuck
[defendant’s gang].” In response, defendant pulled out his gun and fired three times.
Defendant said he fired because he thought they were going to “light him up.” Defendant
knew Mr. Beltran was from the rival gang.
       Defendant’s mother, Maria Sandoval, also testified at trial. Ms. Sandoval said
defendant had grown up, off and on, in the rival gang’s territory. Moreover, Ms
Sandoval had lived with a rival gang member when defendant was young. Ms. Sandoval
further testified the rival gang members knew to leave defendant alone because he was
her son.


                                     III. DISCUSSION


                                 A. Prior Offense Evidence


       Over defense objection, the prosecution presented evidence that on October 4,
2010, defendant, then 14 years old, was arrested for possessing a loaded .25-caliber
semiautomatic handgun. This arrest occurred a few blocks from the scene of the present
shooting. Defendant told law enforcement officers he had the gun because he was
looking for rival gang members; they had crossed out his gang’s graffiti.
       Division One of the Court of Appeal for this appellate district summarized the
applicable law in People v. Sedillo (2015) 235 Cal.App.4th 1037, 1059: “Evidence of
uncharged misconduct is relevant to establish motive, intent, and absence of accident.
(Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Thus,
evidence of uncharged misconduct may be admissible to establish common design or
plan, intent, or identity, if a sufficient similarity exists, in nature and degree, between the
uncharged misconduct and the charged offense. ([People v.] Ewoldt, [, supra, 7 Cal.4th]
at p. 402.) ‘In order to be admissible to prove intent, the uncharged misconduct must be

                                               4
sufficiently similar to support the inference that the defendant “‘probably harbor[ed] the
same intent in each instance.’ [Citations.]”’ (Ibid.) Nonetheless, the probative value of
the evidence of the uncharged misconduct must outweigh the probability that its
admission would create substantial danger of undue prejudice, of confusing the issues or
misleading the jury. (Evid. Code, § 352.) [¶] We review a trial court’s rulings on
relevance and admission or exclusion of evidence under Evidence Code sections 1101
and 352 for abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 667-668.)”
(Accord, People v. Leon (2015) 61 Cal.4th 569, 597, 599; People v. Scott (2015) 61
Cal.4th 363, 398-400.)
       There was no abuse of discretion. Defendant’s intent was the central issue in this
case. The prosecution argued Mr. Beltran was shot because he was a rival gang member
and not because of any need for self-defense. The defense asserted defendant fired his
weapon in response to a verbal threat, which led him to believe he was about to be shot.
The prior offense and current crime were similar. Both occurred in the same general
neighborhood, in or near rival gang territory. In both cases defendant, a gang member,
was armed with a loaded weapon. Both cases involved an intended or actual
confrontation with a rival gang member. The trial court could reasonably conclude
evidence of defendant’s prior uncharged offense tended to show: his loyalty to his gang;
his enmity toward rival gang members; his willingness to arm himself in anticipation of a
confrontation with a rival gang member; the intent with which Mr. Beltran was shot; and
that he did not act in real or perceived self-defense. (See People v. Demetrulias, 39
Cal.4th 1, 14; People v. Sedillo, supra, 235 Cal.App.4th at pp. 1059-1060.)
       Further, as the trial court impliedly found, the prejudicial effect of admitting the
prior uncharged offense evidence did not substantially outweigh its probative value.
(Evid. Code, § 352; People v. Ewodt, supra, 7 Cal.4th at p. 404.) The jury knew
defendant was a gang member. Defendant’s gang affiliation was tattooed on his face.
Defendant had previously possessed a loaded weapon while seeking out rival gang
members. This prior offense was sufficiently similar to and not more inflammatory than
the charged crime. Furthermore, the trial court instructed the jury it could consider the

                                              5
evidence only as to defendant’s motive and intent. The trial court also instructed the jury
evidence of gang activity could not be considered on the issue of defendant’s character or
disposition to commit crime. We presume the jury followed those instructions. (People
v. Pearson (2013) 56 Cal.4th 393, 477; People v. Aranda (2012) 55 Cal.4th 342, 387-
388.) There was no danger of undue prejudice, of confusing the issues or misleading the
jury.


                                    B. Jury Instructions


                                       1. Introduction


        Defendant raises two instructional error contentions. We review defendant’s
instructional error claims de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210; People
v. Sweeney (2009) 175 Cal.App.4th 210, 223.) These contentions do not warrant
reversal.


                                  2. CALCRIM No. 3471


        The trial court instructed the jury on an aspect of self-defense pursuant to
CALCRIM No. 3471. CALCRIM No. 3471 states: “A person who (engages in mutual
combat/ or who starts a fight) has a right to self-defense only if: [¶] 1. He actually and
in good faith tried to stop fighting; [¶] AND [¶] 2. He indicated, by word or by
conduct, to his opponent, in a way that a reasonable person would understand, that he
wanted to stop fighting and that he had stopped fighting[;] [¶] AND [¶] 3. He gave his
opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he
then had a right to self-defense if the opponent continued to fight. [¶] However, if the
defendant used only non-deadly force, and the opponent responded with such sudden and
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 try to stop fighting

                                              6
or communicate the desire to stop to the opponent, or give the opponent a chance to stop
fighting. [¶] A fight is mutual combat when it began or continued by mutual consent or
agreement. That agreement may be expressly stated or implied and must occur before the
claim to self-defense arose.” (CALJIC No. 3471.)
       To begin with, defendant requested the instruction. And nothing in the record
suggests this was other than a conscious, deliberate tactical choice. As a result, defendant
arguably invited any error. (People v. Wader (1993) 5 Cal.4th 610, 657-658; People v.
Graham (1969) 71 Cal.2d 303, 319.) At the very least, defendant forfeited any objection.
(People v. Enraca (2012) 53 Cal.4th 735, 761; People v. McKinnon (2011) 52 Cal.4th
610, 675; People v. Moore (2011) 51 Cal.4th 386, 410.)
       Further, defendant claims there was no factual basis for the instruction. As the
Court of Appeal succinctly explained in People v. Ross (2007) 155 Cal.App.4th 1033,
1049: “A party is entitled to a requested instruction if it is supported by substantial
evidence. (Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233,
1242.) Evidence is ‘[s]ubstantial’ for this purpose if it is ‘sufficient to “deserve
consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’
(People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) At the same time, instructions not
supported by substantial evidence should not be given. (People v. Marshall (1997) 15
Cal.4th 1, 39-40.) ‘It is error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case. [Citation.]’ (People v.
Guiton (1993) 4 Cal.4th 1116, 1129.)”
       We disagree with defendant’s assertion. As we explained in People v. Johnson
(2010) 180 Cal.App.4th 702, 711, “CALCRIM No. 3471 charges a jury to make a
preliminary determination of whether the defendant had the right to use force to defend
himself when the defendant and the victim engaged in mutual combat, or when the
defendant was the aggressor.” Here, defendant claimed he acted in fear that he was about
to be shot. There was evidence Mr. Beltran approached defendant’s car from the rear.
Defendant walked towards the car in which Mr. Beltran was seated. Defendant then
pulled out his weapon and fired three times. Mr. Beltran, who was unarmed, was struck

                                              7
in the head and upper torso. Given that evidence, the jury could reasonably conclude:
defendant was the aggressor; after starting the fight, defendant made no attempt to
withdraw, and; therefore, defendant did not have the right to use force to defend himself.
       And, even if not forfeited, it is not reasonably probable the result would have been
more favorable to defendant had the instruction not been given. (People v. Debose
(2014) 59 Cal.4th 177, 205-206; People v. Letner (2010) 50 Cal.4th 99, 187; People v.
Guiton, supra, 4 Cal.4th at p. 1130.) The trial court further instructed the jury: “Some of
these instructions may not apply, depending on your findings about the facts of the case.
Do not assume just because I give a particular instruction that I am suggesting anything
about the facts. After you have decided what the facts are, follow the instructions that do
apply to the facts as you find them.” The jury is presumed to have followed that
instruction. (People v. Pearson, supra, 56 Cal.4th at p. 477; People v. Aranda, supra, 55
Cal.4th at pp. 387-388.) Here, as in People v. Crandell (1988) 46 Cal.3d 833, 872-873,
disapproved on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365,
“[W]e are confident the jury was not sidetracked by the correct but irrelevant instruction
. . . and we conclude that the giving of the instruction was harmless error.)” (Accord,
People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) If the jury found defendant neither
engaged in mutual combat nor started the fight, it would have ignored the irrelevant
instruction.


                                 3. CALCRIM No. 3472


       The trial court gave an additional self-defense instruction, CALCRIM No. 3472.
CALCRIM No. 3472 states, “A person does not have the right to self-defense if he or she
provokes a fight or quarrel with the intent to create an excuse to use force.” The
instruction correctly states the law. (People v. Enraca, supra, 53 Cal.4th at p. 761
[CALJIC No. 5.55]; but see People v. Ramirez (2015) 233 Cal.App.4th 940, 947
[“CALCRIM No. 3472 under the facts before the jury did not accurately state the
governing law,” italics added].) Defendant asserts, however, that the evidence did not

                                             8
support the instruction. But defendant concedes, “These instructions, [CALCRIM Nos.
3471 and 3472] better fit evidence that gang members went looking for rivals, armed and
prepared to start a confrontation in order to fight or kill.” Here, there was substantial
evidence as follows. Defendant willingly and intentionally entered rival gang territory.
Defendant’s gang affiliation was tattooed on his face. Defendant was armed with a
loaded weapon. Defendant was walking in an area disputed by rival gangs. Defendant
fired that weapon at an unarmed rival gang member. Given all of these facts, taken
together, the jury could reasonably conclude defendant was armed, alert for rival gang
members and ready to provoke a confrontation. Even if it was error to give the
instruction, we apply the People v. Watson (1956) 46 Cal.2d 818, 836 standard of review.
(People v. Debose, supra, 59 Cal.4th at pp. 205-206; People v. Guiton, supra, 4 Cal.4th at
p. 1130.) It is not reasonably probable the result would have been more favorable to
defendant absent the instruction. As instructed, if the jury found the instruction
irrelevant, it would have ignored it.


                                  C. Second Degree Murder


       Defendant challenges the sufficiency of the evidence to support his second degree
murder conviction. Defendant asserts that at most he is guilty of voluntary manslaughter
based on imperfect self-defense. Defendant also refers to heat of passion, however, no
such theory was raised in the trial court. These contentions are meritless given the
controlling standard of review.
       We apply the well-established sufficiency of the evidence standard of review:
“When reviewing a challenge to the sufficiency of the evidence, we ask ‘“whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”’
(People v. Edwards (2013) 57 Cal.4th 658, 715, quoting Jackson v. Virginia (1979) 443
U.S. 307, 319.) Because the sufficiency of the evidence is ultimately a legal question, we
must examine the record independently for ‘“substantial evidence—that is, evidence

                                              9
which is reasonable, credible, and of solid value”’ that would support a finding beyond a
reasonable doubt. (People v. Boyce (2014) 59 Cal.4th 672, 691.)” (People v. Banks
(2015) 61 Cal.4th 788, 804; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87.)
       Our Supreme Court has held, “Second degree murder is the unlawful killing of a
human being with malice, but without the additional elements (i.e., willfulness,
premeditation, and deliberation) that would support a conviction of first degree murder.
(§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)” (People v.
Hansen (1994) 9 Cal.4th 300, 307, disapproved on another point in People v. Sarun Chun
(2009) 45 Cal.4th 1172, 1199; accord, People v. Robertson (2004) 34 Cal.4th 156, 164,
disapproved on another point in People v. Sarun Chun, supra, 45 Cal.4th at p. 1201.)
Further, our Supreme Court has held: “Malice may be express or implied. (§ 188.) It is
express ‘when there is manifested a deliberate intention unlawfully to take away the life
of a fellow creature.’ (§ 188.) It is implied ‘when no considerable provocation appears,
or when the circumstances attending the killing show an abandoned and malignant heart.’
(§ 188.) . . . [I]mplied malice has both a physical and a mental component, the physical
component being the performance of ‘“an act, the natural consequences of which are
dangerous to life,”’ and the mental component being the requirement that the defendant
‘“knows that his conduct endangers the life of another and . . . acts with a conscious
disregard for life.”’ [Citations.]” (People v. Hansen, supra, 9 Cal.4th at pp. 307-308;
accord, People v. Robertson, supra, 34 Cal.4th at p. 164.)
       Substantial evidence supported the second degree murder verdict. Defendant was
a committed gang member. His gang affiliation was tattooed on his face. Defendant was
knowingly and willingly in rival gang territory. He was armed with a loaded weapon.
He was near a disputed intersection. There was intense rivalry between defendant’s
gang, the victim’s gang and a third gang with respect to that territory. Defendant had
been assaulted by a rival gang member only a few hours earlier. A person defendant
knew to be a rival gang member drove up from behind. The surveillance video shows
defendant walking towards the car that had approached from behind, raising his arm and
pointing the gun. Defendant shot Mr. Beltran three times. The bullets struck Mr.

                                            10
Beltran, who was in the car, in the head and upper torso. Mr. Beltran was unarmed.
Defendant ran away after the shooting and disposed of the gun. Defendant boasted that
he had “got one of them” using a derogatory name to describe the rival gang. As noted,
defendant spoke with Mr. Tovar immediately after the fatal shooting of Mr. Beltran.
According to defendant, Mr. Beltran never even had a chance to stand up outside of the
car. The jury could reasonably conclude defendant was not acting in self-defense or in
the actual but unreasonable belief in the need for self-defense when Mr. Beltran was shot.


                           D. The Prosecution’s Gang Evidence


       Defendant argues Sergeant Kenneth Price was permitted to give improper opinion
testimony. Defendant argues, “It was improper for Price to offer his opinion appellant
‘murdered’ Beltran because appellant was a gang member.” Defendant further argues
this testimony invaded the jury’s province and lessened the prosecution’s burden in
violation of his Fifth, Sixth and Fourteenth Amendments rights. The prosecutor posed
the following hypothetical question of Sergeant Price: “A known member of
[defendant’s gang] is in [rival gang] territory carrying a loaded gun. He is with a second
known female . . . gang member walking down the sidewalk. A car starts to approach,
the first gang member walks towards the car and he comes to a standstill. The car
contains a known member of the [rival] gang. [¶] When the first gang member
approaches the car he’s there for a couple of seconds. The [rival] gang member in the car
says “Fuck [defendant’s gang].” The [first] gang member pulls out his gun, shoots, and
hits the [rival] gang member in the chest. The [rival] gang member starts to drive away,
the [first] gang member keeps shooting, hitting him two more times. Once in the back of
the head and once in the back. The [rival] gang member dies. Both [first and female]
gang members drive off. Couple days later the shooter tells two of his fellow gang
members about what happened. [¶] Do you have an opinion whether or not the crime I
just described, the murder, was committed for the benefit of, at the direction of, or in
association with [defendant’s gang].” Sergeant Price responded, “My opinion is that that

                                             11
crime that you described was for the benefit of, for the association of [defendant’s]
gang.”
         Defendant did not object in the trial court to the hypothetical question or to
Sergeant Price’s response. Nor has defendant shown an objection would have been futile
merely because the trial court overruled other defense objections to Sergeant Price’s
testimony. Therefore, the entire issue has been forfeited. (Evid. Code, § 353, subd. (a);
People v. Coffman and Marlowe (2004) 34 Cal.4th 1, 81-82.)
         Even if the issue were properly before us, we would not find any abuse of
discretion. The trial court had discretion to permit Sergeant Price to testify about
criminal street gangs. (People v. Gonzalez (2006) 38 Cal.4th 932, 944; People v.
Gardeley (1996) 14 Cal.4th 605, 617.) The trial court’s decision to admit the testimony
will not be disturbed on appeal absent a manifest abuse of discretion. (People v. Roberts
(1992) 2 Cal.4th 271, 298.) Further, Sergeant Price, an experienced gang investigator,
may render an opinion whether a crime is gang related based on a hypothetical question
tracking the facts of the case. (People v. Xue Vang (2011) 52 Cal.4th 1038, 1045; People
v. Gonzalez, supra, 38 Cal.4th at pp. 946-947; People v. Gardeley, supra, 14 Cal.4th at p.
618.) Without abusing its discretion, the trial court could reasonably conclude the
hypothetical question posed in the present case was permissible. (People v. Xue Vang,
supra, 52 Cal.4th at p. 1045 [“‘Based on the facts of that hypothetical, do you have an
opinion as to whether this particular crime was committed for the benefit of and [in]
association with or at the direction of the Tiny Oriental Crips street gang?’”]; People v.
Gardeley, supra, 14 Cal.4th at p. 619 [“the prosecutor asked Boyd if in his expert opinion
an attack as described would be ‘gang-related activity’”]; People v. Garcia (2007) 153
Cal.App.4th 1499, 1505 [“do you have an opinion as to whether this particular
[hypothetical] offense was committed for the benefit of . . . [a gang]”].)
         And, contrary to defendant’s assertion, Sergeant Price did not express an opinion
as to whether defendant committed murder. Sergeant Price gave an opinion whether a
hypothetical crime, which the prosecutor described as “murder,” was committed for the
gang’s benefit. In his response, Sergeant Price did not use the word “murder,” instead, he

                                               12
referred to “the crime that you described.” Sergeant Price had no personal knowledge
whether defendant murdered Mr. Beltran and if so, how or why. It was within the jury’s
competence to weigh the evidence and determine what the facts were, including whether
defendant committed a murder. Sergeant Price could not testify directly whether
defendant committed a murder for gang purposes. But Sergeant Price properly could
express an opinion based on a hypothetical question tracking the facts of this case. And
his opinion could extend to whether, if the jury found a murder in fact occurred, it was
committed for a gang purpose. (People v. Xue Vang, supra, 52 Cal.4th at pp. 1048-1049;
People v. Gonzalez, supra, 38 Cal.4th at p. 947.)
       We reject defendant’s assertion his trial attorney rendered ineffective assistance of
counsel by failing to object to the hypothetical question or the response thereto. A
defense attorney’s failure to interpose a meritless objection does not amount to
ineffective assistance. (People v. Farnam (2002) 28 Cal.4th 107, 186, fn. 36; People v.
Davis (1995) 10 Cal.4th 463, 539, fn. 36; People v. Price (1991) 1 Cal.4th 324, 387.)
More critically, there is no basis for concluding that there was a reasonable probability
the trial court would have ruled in defendant’s favor had such an objection been
interposed. And had the prosecutor’s reference to “murder” been deleted from a
hypothetical question, there is no reasonable probability that the result would have been
more favorable to defendant. Defendant has failed to sustain his prejudice burden in
connection with his ineffectiveness assistance of counsel contention. (In re Welch (2015)
61 Cal.4th 489, 522; People v. Grimes (2015) 60 Cal.4th 729, 773.)


                               E. Prosecutorial Misconduct


       Defendant argues three remarks by Deputy District Attorney Angie Christides
during closing argument constituted prosecutorial misconduct. First, Ms. Christides
described self-defense as created for a reasonable person, not a reasonable gangster.
Second, Ms. Christides asserted defendant’s self-defense claim—he thought he was going
to be shot—was uncorroborated. Third, the deputy district attorney stated, “Nobody took

                                            13
the stand and said [the victim] was reaching for a gun or to the floorboard or to the glove
compartment.”
       As to each challenged remark, defendant either failed to object, or objected but
failed to request an admonition. And nothing in the record suggests an objection would
have been futile or an admonition ineffective. As a result, defendant forfeited the present
arguments. (People v. Charles (2015) 61 Cal.4th 308, 327-328; People v. Centeno
(2014) 60 Cal.4th 659, 674.)
       Even if defendant’s present arguments were properly before us, we would find no
prosecutorial misconduct. Our Supreme Court has held: “The standards under which we
evaluate prosecutorial misconduct may be summarized as follows. A prosecutor’s
conduct violates the Fourteenth Amendment to the federal Constitution when it infects
the trial with such unfairness as to make the conviction a denial of due process. Conduct
by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial
misconduct under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.” (People v. Morales
(2001) 25 Cal.4th 34, 44; accord, People v. Johnson (2015) 61 Cal.4th 734, 780; People
v. Leon, supra, 61 Cal.4th at p. 605.) Furthermore, “[W]hen the claim focuses upon
comments made by the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.)” (People
v. Morales, supra, 25 Cal.4th at p. 44; accord, People v. Hajek (2014) 58 Cal.4th 1144,
1239.) Stated differently, an appellate court reviews a prosecutor’s remarks to determine
whether it is reasonably likely the jury misconstrued or misapplied them. (People v.
Lewis (2009) 46 Cal.4th 1255, 1304; People v. Roybal (1998) 19 Cal.4th 481, 514.)
       As noted above, Ms. Christides described self-defense as created for a reasonable
person, not a reasonable gangster. In her opening argument Ms. Christides stated:
“What’s malice aforethought and what is a lawful excuse? Let’s start with lawful excuse.
When we’re talking about lawful excuse we’re talking about self-defense. There are two
types. There is perfect self-defense or complete self-defense, which if you find, then the

                                            14
defendant is not guilty of murder. And there is imperfect self-defense, which if you find
that to be true then the defendant is guilty of voluntary manslaughter. But I want to make
something perfectly clear. Self-defense . . . was created for a reasonable person, for a
person who is at home and a burglar breaks in and that burglar forces a gun into the
homeowner’s house and that homeowner pulls out his gun and shoots and fires back and
kills. That is self-defense. Self-defense is when you’re in a fight and the person you’re
fighting pulls out a knife, you pull out a gun and kill that person. That is self-defense.
Self-defense was created for a reasonable person, not for a reasonable gangster. [¶]
Gang banging is not the same as self-defense. Self-defense is not a shield for gangsters
to use when they’re engaged in normal gang banging activities. I want to make that clear
from the get-go. Gang banging is not for self-defense. Self-defense is for reasonable
people, not reasonable gangsters. [¶] So the right to self-defense. Defendant acted in
lawful self-defense if he reasonably believed he was in imminent danger of suffering
bodily injury. Imminent danger is immediate danger. Did he believe that immediately in
those four seconds he was going to be hurt. He reasonably believes the immediate use of
force was necessary to defend against danger and to use no more force than necessary.
Like I said, it’s made for the reasonable person. It’s not made for gang life.” (Italics
added.)
       In her argument for the defense, defendants’ attorney, Alexis L. Salzman, took
issue with Ms. Christides’s comments: “I want to start off by saying something very
important. Everybody, everyone, gang members, lawyers, jurors, law enforcement,
judges, everybody is entitled to the protection of the law. Everybody is entitled to use
self-defense as it was read to you by his Honor. I don’t want any confusion on that. And
the court has instructed you what the law is regarding self-defense. There is nothing in
the law that says gang members are not allowed to use self-defense. Nothing. [¶] In
addition, I’m going to read this because I want to make sure there’s no question.
CALCRIM 505 . . . . ‘When deciding whether defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appear to the defendant and
consider what a reasonable person in a similar situation with similar knowledge would

                                             15
have believed.’ What that means is you absolutely may consider all of the surrounding
circumstances of the gang culture. Nothing in the law says that the only people allowed
to use self-defense are non gang members in their home[s] in the middle of the night.
That’s not the law.”
       In her rebuttal argument Ms. Christides said: “. . . I absolutely agree self-defense
is something that is everyone’s right. It doesn’t matter if you’re a gang member of if
you’re a judge, doesn’t matter what you are. Everyone has that right. But the law is
clear, . . . . When deciding whether the defendant’s beliefs are reasonable we consider all
the circumstances, of course we do. But you have to consider what a reasonable person
in a similar situation would have believed. And that’s what I was trying to get across
earlier. To decide what a reasonable person would believe, not what a reasonable
gangster would believe. It’s not a different standard just because the defendant is a gang
member. We still use self-defense in a reasonable way.”
       Contrary to defendant’s assertion, Ms. Christides did not misstate the law. As the
jury was instructed pursuant to CALCRIM No. 505, “When deciding whether the
defendant’s beliefs were reasonable, consider all the circumstances as they were known
to and appeared to the defendant and consider what a reasonable person in a similar
situation with similar knowledge would have believed.” (People v. Humphrey (1996) 13
Cal.4th 1073, 1082-1083; People v. Glover (1903) 141 Cal. 233, 239; People v. Williams
(1977) 75 Cal.App.3d 731, 739; People v. Ortiz (1923) 63 Cal.App. 662, 668.) In
Williams, the Court of Appeal explained, “To justify a homicide under a plea of self-
defense it must appear not only that the defendant actually believed himself in deadly
peril, but that as a reasonable man he had sufficient grounds for his belief.” (People v.
Williams, supra, 75 Cal.App.3d at p. 739.) Even if the prosecutor’s analysis was
improper to some degree, any prejudice was substantially ameliorated by Ms. Salzman’s
argument and Ms. Christides’s clarifying remarks in rebuttal. Further pertinent to the




                                             16
prejudice is that the standard instructions that argument is not evidence2 and the jurors
must follow the law were read to the jury.3 (People v. Cash (2002) 28 Cal.4th 703, 734
[presence of some impropriety in a prosecutor’s argument was cured by the “standard
admonition that argument is not evidence.”]) We presume the jury followed those
instructions. (People v. Pearson, supra, 56 Cal.4th at p. 477; People v. Aranda, supra, 55
Cal.4th at pp. 387-388.)
       As noted, defendant takes issue with Ms. Christides’s assertion that defendant’s
self-defense claim—that he thought he was going to be shot—had to be corroborated.
Ms. Christides argued: “And [Mr. Torres] gives us this statement that the defendant said,
‘I thought he was going to light me up.’ And what I expect is that the defense is going to
hang their hat on that statement, and say, see, look, we have his statement. He thought he
was going to get lit up. That is his actual and reasonable belief because that’s what he
said. [¶] But there must be some corroboration for that. There has to be something to
give that lends to that belief. A reason for him to believe that. Otherwise it doesn’t make
any sense. That’s like I was saying. Me walking down the street shooting a random
person and saying I thought he was going to shoot me when there’s no weapons found on
that person, no reason to think he was going to shoot me. There has to be some physical
evidence, something more than the defendant saying I thought he was going to light me
up. There has to be a reason for him to say that. Otherwise we could all go around
shooting at people and saying I thought he was going to kill me.” At this point, Ms.
Salzman interposed an objection, “Misstates the law.” The trial court ruled: “Overruled.
Just keep in mind I’m giving you the instructions on the law and follow my instructions.”
Ms. Christides went on to discuss the testimony of Mr. Torres and Mr. Tovar: “Neither
one of them said defendant said [the victim] had a gun or a knife or a weapon or a lasso

2      The trial court instructed the jury: “Nothing that the attorneys say is evidence. In
their opening statements and closing arguments, the attorneys discuss the case, but their
remarks are not evidence.”
3      The trial court instructed the jury: “You must follow the law as I explain it to you,
even if you disagree with it. If you believe that the attorney’s comments on the law
conflict with my instructions, you must follow my instructions.”

                                             17
or anything that could be used to hurt the defendant. Neither one of them ever said that
the victim was reaching for his waistband as if to pull out a gun, that the victim was
going into the glove compartment, reaching to the floorboard, anything. Neither one of
them said anything about any movements the victim was making that could be interpreted
as giving the defendant a belief of immediate danger. None. Nothing. All we get from
them is [the] victim was in the car doing nothing. [¶] We also have to look at the
victim’s conduct. And we’re limited by the evidence we have. So like I said, we have no
evidence [the victim is] reaching. Nobody took the stand and said [the victim] was
reaching for a gun or to the floorboard or to the glove compartment. There was a brick.
Nothing like that. No evidence of a weapon at the crime scene. . . . No gun getting
tossed. . . . There’s no weapon on the victim.” (Italics added.)
       Although he raised the issue, defendant has not presented any argument on appeal
specific to Ms. Christides’s lack of corroboration remarks. In any event, Mr. Christides’s
comments related to the evidence rather than to the law. And, our Supreme Court has
held: “[T]he prosecutor ‘enjoys wide latitude in commenting on the evidence, including
the reasonable inferences and deductions that can be drawn therefrom.’ (People v.
Hamilton (2009) 45 Cal.4th 863, 928.)” (People v. Collins (2010) 49 Cal.4th 175, 230;
accord, People v. Stanley (2006) 39 Cal.4th 913, 951.) Ms. Christides was merely calling
the jury’s attention to the absence of evidence Mr. Beltran was about to shoot defendant.
This was a proper argument. (People v. Morales, supra, 25 Cal.4th at p. 44; People v.
Avena (1996) 13 Cal.4th 394, 443 [prosecutor merely pointed out defendant did not
present any mitigating evidence]; People v. Stanley (1995) 10 Cal.4th 764, 830
[prosecutor allowed fair comment on the state of the evidence].)
       Finally, defendant asserts Ms. Christides committed misconduct when she argued,
“Nobody took the stand and said [the victim] was reaching for a gun or to the floorboard
or to the glove compartment.” Ms. Christides argued: “We also get from them [the
former gang members] that [defendant] needed to prove himself as a . . . gang member.
And what’s consistent between the two of them is that neither one of them ever
mentioned the defendant saying the victim had a gun. Neither one of them said defendant

                                            18
said he had a gun or a knife or a weapon or a lasso or anything that could be used to hurt
the defendant. Neither one of them ever said that the victim was reaching for his
waistband as if to pull out a gun, that the victim was going into the glove compartment,
reaching to the floorboard, anything. Neither one of them said anything about any
movements the victim was making that could be interpreted as giving the defendant a
belief of immediate danger. None. Nothing. All we get from them is [the] victim was in
the car doing nothing. [¶] We also have to look at the victim’s conduct and we’re
limited by the evidence we have. So like I said, we have no evidence he’s reaching.
Nobody took the stand and said he was reaching for a gun or to the floorboard or to the
glove compartment. There was a brick. Nothing like that. No evidence of a weapon at
the crime scene. No bullets around the gun. No gun being tossed. Nothing being tossed
from the windows during that video.” (Italics added.)
       In Griffin v. California (1965) 380 U.S. 609, 614, the United States Supreme
Court held a prosecutor may not comment on a defendant’s failure to testify. However,
Griffin does not bar a prosecutor’s comment on the state of the testimony including the
absence of evidence controverting the prosecution’s case or corroborating the defendant’s
position. (People v. Thomas (2012) 54 Cal.4th 908, 939, 945; People v. Stevens (2007)
41 Cal.4th 182, 210; People v. Carter (2005) 36 Cal.4th 1215, 1266-1267; People v.
Harrison (2005) 35 Cal.4th 208, 257 [“Griffin’s prohibition . . . ‘“does not extend to
comments on the state of the evidence”]; People v. Bradford (1997) 15 Cal.4th 1229,
1339; People v. Sanders, supra, 11 Cal.4th at p. 529 [“The prosecutor referred to the
absence of evidence, not to defendant’s failure to testify”]; People v. Johnson (1992) 3
Cal.4th 1183, 1229; People v. Mitcham (1992) 1 Cal.4th 1027, 1051.)
       Ms. Christides’s comment, read in the context of her argument as a whole, and in
light of the evidence presented, did not implicate defendant’s failure to testify. Ms.
Christides simply stated there was no evidence Mr. Beltran was reaching for a weapon
when he was shot. This was proper comment on the state of the evidence. (See People v.
Carrington (2009) 47 Cal.4th 145, 197; People v. Stevens, supra, 41 Cal.4th at p. 210;



                                             19
People v. Szeto (1981) 29 Cal.3d 20, 34 [prosecution pointed out defense had not
produced alibi witness for crucial period].)
       And defendant was not the only person who could have testified to evidence the
victim appeared to reach for a weapon. Defendant was accompanied at the time of the
shooting by a fellow gang member. Further, Mr. Torres or Mr. Tovar might have given
testimony to that effect. Mr. Torres spoke to defendant. In that conversation, defendant
referred to the fact that Mr. Beltran had a gun. But nothing in that conversation indicated
Mr. Beltran was reaching for a gun or brandishing one immediately prior to the shooting.
It is not reasonably likely the jury misconstrued Ms. Christides’s comment as a reference
to defendant’s failure to testify. (People v. Bryant (2014) 60 Cal.4th 335, 387; People v.
Sanders, supra, 11 Cal.4th at p. 529.) There was likewise no violation of defendants’
constitutional rights. (People v. Roybal, supra, 19 Cal.4th at p. 515, fn. 9; People v.
Berryman (1993) 6 Cal.4th 1048, 1103, fn. 28, disapproved on another point in People v.
Hill (1998) 17 Cal.4th 800, 822-823.)
       The foregoing remarks did not constitute prosecutorial misconduct. There was no
reasonable likelihood the prosecutor’s remarks misled the jury. As a result, there was no
prejudice. (People v. Seumanu (2015) 61 Cal.4th 1293, 1336; People v. Tully (2012) 54
Cal.4th 952, 1023.) Further, because there was no misconduct, Ms. Salzman was not
constitutionally ineffective in failing to object to Ms. Christides’s remarks. (People v.
Cole (2004) 33 Cal.4th 1158, 1202, fn. 11; People v. Boyette (2002) 29 Cal.4th 381, 433;
see Strickland v. Washington (1984) 466 U.S. 668, 687-696.)


                         G. The Sealed Search Warrant Affidavit


       Defendant requests that we independently review the sealed in camera
proceedings and search warrant. Defendant argues we should determine whether the trial
court erred in denying his motions to unseal the affidavit and traverse and quash the
warrant. A search warrant affidavit may be sealed in whole or in part if necessary to
implement the Evidence Code section 1041 privilege or protect a confidential informant’s

                                               20
identity. (People v. Hobbs (1994) 7 Cal.4th 948, 971; People v. Martinez (2005) 132
Cal.App.4th 233, 240; see Evid. Code, § 1042, subd. (b).) We have independently
reviewed the record including the sealed materials. The trial court properly sealed a
portion of the search warrant affidavit. And the trial court correctly denied defendant’s
search warrant related motions. (People v. Hobbs, supra, 7 Cal.4th at pp. 972-973, 975,
977; People v. Martinez, supra, 132 Cal.App.4th at p. 242; People v. Aho (1985) 166
Cal.App.3d 984, 989-993.) Further, under the totality of the circumstances, there was
probable cause to issue the search warrant. (People v. Kraft (2000) 23 Cal.4th 978, 1040;
People v. Hobbs, supra, 7 Cal.4th at p. 975; People v. Martinez, supra, 132 Cal.App.4th
at p. 242; People v. Mikesell (1996) 46 Cal.App.4th 1711, 1716.) There was no Fourth
Amendment or due process violation. (See Illinois v. Gates (1983) 462 U.S. 213, 238;
People v. Bradford, supra, 15 Cal.4th at p. 1291.)


             H. Sentencing: Section 12022.53, Subdivisions (b), (c) and (d)


       The jury found true firearm enhancements under section 12022.53, subdivisions
(b), (c) and (d). The trial court sentenced defendant as follows: “[Y]ou are to serve an
additional 25 years to life mandatory and consecutive pursuant to Penal Code section
12022.53(d). And although the jury did find the subsection (b) and (c) true for that same
code section, no additional time is going to be imposed. The punishment is stayed as it
relates to those two subsections pursuant to Penal Code section 654.” (Italics added.)
The trial court was required, however, to impose and then stay the sentences under
subdivisions (b) and (c) of section 12022.53. (People v. Gonzalez (2008) 43 Cal.4th
1118, 1122-1123; People v. Warner (2008) 166 Cal.App.4th 653, 659.) The judgment
must be modified and the abstract of judgment amended to so provide. (People v.
Gonzalez, supra, 43 Cal.4th at pp. 1122-1123; People v. Gonzalez (2010) 180
Cal.App.4th 1420, 1427-1428.)




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                                   IV. DISPOSITION
       The judgment is modified to impose and stay a 10-year sentence under section
12022.53, subdivision (b), and a 20-year sentence under section 12022.53, subdivision
(c). The judgment is affirmed in all other respects. Upon remittitur issuance, the superior
court clerk is to prepare an amended abstract of judgment and deliver a copy to the
Department of Corrections and Rehabilitation.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            TURNER, P.J.
We concur:




       MOSK, J.




       BAKER, J.




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