Filed 11/14/14 P. v. Ruedas CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048545

                   v.                                                  (Super. Ct. No. 08CF2288)

ALBERT LUGO RUEDAS,                                                    OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James
Edward Rogan, Judge. Affirmed.
                   Waldemar D. Halka, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and
Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.


                                             *               *               *
              A jury found defendant Albert Lugo Ruedas guilty of first degree murder
and active participation in a criminal street gang and returned true findings on special
circumstance allegations that he committed the murder while an active participant in a
criminal street gang and while attempting to commit a robbery. In addition, the jury
found defendant committed the murder for the benefit of, at the direction of, or in
association with a criminal street gang, and that he personally discharged a firearm
causing the victim’s death. The trial court sentenced him to prison for life without the
possibility of parole for the murder with an additional 25 years to life on the firearm
enhancement. The court imposed, but stayed the terms for his active gang participation
conviction and the gang enhancement. (Pen. Code, § 654.)
              Defendant seeks reversal of his conviction on several grounds. He argues
the prosecution failed to establish the corpus delicti for the charged crimes, the special
circumstance allegations, and the gang enhancement. He attacks the trial court’s denial
of his motion to suppress his confession, plus its failure to instruct the jury on the lesser
crimes of second degree murder and both voluntary and involuntary manslaughter. Next,
defendant claims the prosecutor committed misconduct during closing argument. Finally,
he asserts his trial counsel failed to render effective assistance. We affirm the judgment,
concluding his claims either lack merit or any error was harmless.


                                           FACTS


              While driving along a Santa Ana street shortly after midnight, Jose
Madrigal saw two men standing on the sidewalk wearing hooded sweatshirts with the
hoods pulled over their faces. He watched as the two men ran up behind a person
walking along the sidewalk, later identified as Daniel Jimenez Lopez. The man wearing
a white or light-colored sweatshirt placed Lopez in a chokehold. Madrigal then heard a



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loud noise that sounded as if something hit his car. He subsequently discovered his
vehicle had been struck by a bullet.
              Madrigal circled the block. He saw a beige- or khaki-colored older model
Chevrolet Suburban double-parked in a shopping center with its lights off. People were
sitting in the driver’s and front passenger’s seats and the vehicle’s doors were open. The
two men in hooded sweatshirts were fleeing toward the Suburban. Madrigal tried to get
the Suburban’s license plate number, but the vehicle sped away.
              Meanwhile, Lopez called 911 and told the dispatcher he had been shot.
Madrigal returned to Lopez’s location, reaching it just as a police officer arrived. They
found Lopez lying face down, bleeding from bullet wounds in his lower back, holding a
cell phone in one hand and a box cutter in the other hand. Paramedics took Lopez to the
hospital, but he succumbed to his wounds. At the scene, the police recovered shell
casings for six Winchester .380 caliber bullets.
              Five days later, a Fullerton police officer stopped an older model gold-
colored Suburban driven by defendant. When asked if he had anything illegal in the
vehicle, defendant acknowledged there was a .380 caliber handgun in the glove box. The
officer retrieved the gun and found it loaded with .380 caliber Winchester bullets.
Defendant was arrested and charged with carrying a loaded firearm.
              Two days later, defendant was arraigned on the firearm charge. The trial
court appointed a public defender to represent him. Counsel declared defendant reserved
his constitutional rights and entered a not guilty plea for him. Defendant remained in
custody.
              After defendant’s arrest, the police linked the weapon found in his vehicle
to the Lopez murder. The Suburban was impounded and searched, resulting in the
discovery of a light gray hooded sweatshirt and two pairs of black gloves.
              On the evening of his arraignment for the firearm charge, two Santa Ana
detectives met with defendant at the Orange County Sheriff’s headquarters. The

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detectives explained they wanted to question him on “a case that happened . . . in Santa
Ana about a week ago.” They advised defendant of his rights (Miranda v. Arizona
(1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) and he agreed to speak with them.
The interrogation was recorded and later played for the jury.
              Over the course of the questioning, defendant gave contradictory versions
of what happened the night of Lopez’s murder. Initially, he denied being in Santa Ana.
Later, he admitted visiting friends in the city. After further questioning, defendant said
he was present when a man, identified as “Jose,” shot another man over a personal
dispute. Then he stated, “Jose” shot the man during an attempt to rob him. Ultimately,
defendant admitted he shot the man when he and a “tagger” nicknamed “Rampage,”
attempted to rob the victim. Defendant said he began shooting when the victim reached
for something “black” in his waist. He fired “may[be] seven” times and described the
shooting as follows: “I went . . . (clap, clap),” hesitated, “and then (clap, clap, clap,
clap).” He also acknowledged committing another robbery earlier that evening.
              At trial, a firearms expert testified he inspected the weapon, plus the
casings found at both the murder scene and casings obtained from test-firing the weapon.
Based on his inspection, the expert concluded the handgun found in defendant’s car was
the firearm used to shoot Lopez.
              Anaheim Police Officer Jonathan Yepes testified as an expert on criminal
street gangs. Yepes described the history, size, activities, hand signs, symbols, and
activities of a group named Boys from the Hood, also known as the Anaheim Boys.
Through Yepes, the prosecution introduced documentation establishing the predicate
crimes committed by members of Boys from the Hood. He opined Boys from the Hood
constituted a criminal street gang. In addition, based on documentation relating to
defendant, Yepes said it was his opinion that, for several years prior to and on the day of
Lopez’s murder, defendant was an active member of Boys from the Hood. Based on his
knowledge of street gangs, Yepes also concluded the person with defendant when Lopez

                                               4
was killed was also a member of that gang. Finally, Yepes explained how committing a
robbery could benefit a criminal street gang.


                                      DISCUSSION


1. The Prosecution complied with the corpus delicti rule.
              After the prosecution rested, the defense unsuccessfully sought to dismiss
the criminal street gang charge and gang enhancement on the ground the prosecution
failed to establish the corpus delicti for the crime and the enhancement. Defendant’s
opening brief expands this contention to include the murder charge, and the special
circumstance allegations for gang participation and felony murder.
              The Attorney General points out the corpus delicti for murder is satisfied by
independent proof of a death resulting from criminal conduct, regardless of the
prosecution’s theory of how it occurred (People v. Williams (1957) 151 Cal.App.2d 173,
177), and thus independent proof defendant killed Lopez during an attempted robbery
was unnecessary (People v. Miller (1951) 37 Cal.2d 801, 806). Here, there was evidence
Lopez died from wounds suffered when he was shot with a .380 caliber handgun. The
Attorney General also notes the Legislature statutorily eliminated the need to establish
the corpus delicti of felony-based special circumstance allegations (Pen. Code, § 190.41),
and case law has declared the corpus delicti rule inapplicable to other special
circumstance allegations (People v. Howard (1988) 44 Cal.3d 375, 413-415; People v.
Shoemake (1993) 16 Cal.App.4th 243, 254).
              In his reply brief, defendant concedes the Attorney General is correct on the
murder charge and the felony-murder special circumstance allegation. But he still
maintains the prosecution was required to establish the corpus delicti for the street gang
special circumstance allegation, the substantive gang crime, and gang enhancement.



                                                5
              These arguments lack merit. “[T]o ensure that one will not be falsely
convicted, by his or her untested words alone, of a crime that never happened” (People v.
Alvarez (2002) 27 Cal.4th 1161, 1169), “[i]n every criminal trial, the prosecution must
prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or
harm, and the existence of a criminal agency as its cause.” (Id. at p. 1168.)
              First, the prosecution introduced sufficient independent evidence to
establish the corpus delicti of the gang crime. “The gravamen of the substantive
offense . . . is active participation in a criminal street gang.” (People v. Albillar (2010) 51
Cal.4th 47, 55.) To support a conviction the prosecution must show “active participation
in a criminal street gang, in the sense of participation that is more than nominal or
passive; . . . knowledge that the gang’s members engage in or have engaged in a pattern
of criminal gang activity; and . . . the willful promotion, furtherance, or assistance in any
felonious criminal conduct by members of that gang.” (People v. Rodriguez (2012) 55
Cal.4th 1125, 1130.)
              Madrigal testified he saw two persons approach and assault Lopez. Yepes
opined that, at the time of Lopez’s murder, defendant was an active participant in a
criminal street gang known as Boys from the Hood or Anaheim Boys. He supported
defendant’s gang involvement by citing notices defendant received in prior police
contacts, photographs of him with gang members that depicted him making gang hand
signs, and written materials wherein defendant expressed his allegiance to the gang.
Yepes noted one of the gang’s primary activities was committing robberies. He also
explained the concept of “backup” in the criminal street gang context and concluded it
was likely the other person with defendant belonged to the gang. This evidence satisfied
the corpus delicti rule. “The independent proof may be circumstantial and need not be
beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct,
even if a noncriminal explanation is also plausible. [Citations.] There is no requirement
of independent evidence ‘of every physical act constituting an element of an offense,’ so

                                               6
long as there is some slight or prima facie showing of injury, loss, or harm by a criminal
agency.” (People v. Alvarez, supra, 27 Cal.4th at p. 1171.)
              Second, we reject defendant’s attempt to extend the corpus delicti rule to
nonfelony special circumstance and other enhancement allegations. As previously
mentioned, case law holds the rule is inapplicable to nonfelony-based special
circumstance allegations. In addition, case law also holds it does not apply to “the facts
necessary for the enhancement of the penalty for an offense.” (People v. Miranda (2008)
161 Cal.App.4th 98, 108; see People v. Shoemake, supra, 16 Cal.App.4th at p. 255
[same; “An enhancement does not define a crime but merely imposes additional
punishment for a crime when certain circumstances are found to exist”].)
              Defendant argues the foregoing decisions have been abrogated by the
United States Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466
[120 S.Ct. 2348, 147 LEd.2d 435]. He is wrong. Apprendi declared “that ‘under the Due
Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the
Sixth Amendment, any fact (other than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.’” (Id. at p. 476.) Thus, Apprendi concerns the burden of
proof necessary to establish some ground for increasing a defendant’s punishment.
California law imposes on the prosecution the duty to establish special circumstance and
enhancement allegations by proof beyond a reasonable doubt. (Pen. Code, § 190.4, subd.
(a) [special circumstances]; People v. Lewis (1991) 229 Cal.App.3d 259, 264
[enhancements]; People v. Nelson (1978) 85 Cal.App.3d 99, 103 [same].)
              But, “The corpus delicti rule is a rule of law that governs the admissibility
of evidence,” and “has no bearing on the prosecution’s burden to prove beyond a
reasonable doubt all elements of the offense.” (People v. Diaz (1992) 3 Cal.4th 495, 529;
see People v. Shoemake, supra, 16 Cal.App.4th at p. 253 [same].) It merely requires the
prosecution introduce some minimal independent proof that a crime was committed

                                             7
before it may be allowed to present a defendant’s incriminating statements at trial.
(People v. Alvarez, supra, 27 Cal.4th at p. 1171.) Since Apprendi and the corpus delicti
rule serve different purposes and apply at different stages of a criminal trial, the former
did not abrogate the latter.
              Defendant’s reliance on the corpus delicti rule lacks merit.


2. The trial court properly admitted the videotape of defendant’s interrogation.
              2.1. Background
              Before trial, the defense moved to exclude the admission of defendant’s
statements during his interrogation, arguing he requested an attorney when arrested in
Fullerton, the detectives questioned him without the presence of the attorney appointed to
represent him on the firearm charge, and his statements during the interrogation were
involuntary. During a pretrial hearing, the court rejected the first and second claims. At
defense counsel’s request, the court agreed to rule on the voluntariness issue after the
videotape of the interrogation was played during trial.
              Once the prosecution rested, defense counsel sought exclusion of the
videotape. Citing the fact defendant had been awake for over 19 hours and that, at one
point during the interrogation when defendant inquired about the length of a possible
prison sentence, a detective mentioned he was retiring in eight months, counsel argued
defendant’s statements were obtained by an implied promise of leniency. “Someone
being up that long, it’s reasonable to conclude that anybody hearing that is going to be
interpreting the answer as an eight-month offer, to come clean.” The trial court denied
the motion.
              On appeal, defendant repeats his claim the police questioned him without
his attorney being present and expands his attack on the voluntariness of the statements.
On the latter issue, defendant cites his age, physical condition, custodial status, plus the



                                              8
location and length of the interrogation. He also faults the detectives for using deception,
implied promises of leniency, and references to his religious beliefs.


              2.2. The Interrogation
              According to the transcript of the interrogation, the detectives began
questioning defendant around 8:15 p.m. Defendant said he was 21 years old, had
completed two years of college, majoring in criminal justice, and currently worked an
overnight shift at a large department store in Long Beach. He spoke both English and
Spanish. Defendant was not married, but his girlfriend was pregnant. He acknowledged
he “used to bang” with the Anaheim Boys, but claimed he stopped several years earlier
when served with a gang injunction.
              After being advised of his Miranda rights, defendant agreed to speak with
the detectives. He initially denied being in Santa Ana on the night of Lopez’s murder,
claiming he was at work. The detectives told him surveillance cameras had recorded him
driving the Suburban in the city. Defendant then acknowledged going to Santa Ana that
night to visit a former girlfriend, and that he was in the area where the Lopez murder
occurred. He also admitted having a second female and another male who was wearing a
black hooded sweatshirt in the Suburban, but denied having a weapon.
              The detectives told defendant “[s]omething happened” where a person was
“assaulted” and “got hurt,” and “some witnesses” “pointed in [his] direction.” Defendant
then claimed the other male, who he identified as “Jose,” had “a little beef” with a man,
“took it to the next level” by pulling “out a strap [i.e., gun]” and “dropped the whole
clip.”
              Defendant insisted he did not shoot the man, even after one officer
suggested, “Jose said you shot him.” The detectives told defendant they knew he had
“more involvement” in the shooting and he had “a huge decision to make” about
“whether or not [he want[ed] to tell [them] what truly happened.”

                                             9
              Defendant then said he was trying to raise money so that he could buy his
way out of the gang lifestyle. He admitted that he and “Jose” robbed another person
earlier, but pocketed only $15. The two then attempted to rob Lopez. While asserting
Lopez reached for something, he continued to insist it was “Jose” who shot the victim.
              One detective said, “I’m hearing a little bit of fact, but a lot of fiction.” The
other officer then told defendant, “We know who is responsible, . . . the man who pulled
that trigger, I’m looking at [him] right now.”
              Defendant continued to claim, “I did not shoot that man.” One detective
told defendant, “We’ve been doing our homework,” they had already talked to several
others, and the case against him was “extremely strong.” But he continued, “I can tell
you’re sorry that that night ever happened,” and wanted to “make sure I’ve got one
hundred percent the fact out of your mouth. And if this guy did something, if this guy
pulled something, if . . . you didn’t mean to shoot and it was a startle . . ., I need to know
that because that plays into all this.”
              Defendant asked “what kind of charges am I facing?” An officer explained
he was looking at murder and robbery. Defendant asked “[h]ow much time am I facing,”
and the detectives replied, “we don’t know.” Defendant then answered his own question.
Recognizing the nature of the charges, plus his “possession of a handgun,” “[t]he way it
is, everything all together. That’s life.” An officer replied, “I’m not gonna lie . . ., you’re
looking at some serious charges,” and “I can’t make you any promises.”
              Defendant continued to insist he “didn’t pull that trigger,” but repeated the
claim that Lopez “looked like he was gonna pull out a gun” before being shot. A
detective said, “If . . . that’s what you want to go down, that’s the way it’ll go down.
That’s the way we’ll put it on the paper.”
              Defendant complained the detectives did not believe him. One officer said,
comparing “what eyewitnesses are telling me” with “what the physical evidence is telling
me,” the “witnesses [are] saying what the physical evidence shows.”

                                              10
              After discussing where defendant was living before his arrest, obtaining his
written authorization to search the premises, and how long he might remain in pretrial
custody, the detectives asked defendant about what he was wearing the night of Lopez’s
murder. Defendant admitted wearing a hooded sweater or shirt that was some color other
than black. He also acknowledged wearing black gloves. When he said he threw away
the clothes he wore the night of the murder, one detective asked, “why would an innocent
man throw away clothes?” Defendant acknowledged he was worried some of the gun
powder may have landed on him.
              A detective again accused defendant of shooting Lopez and asked, “Do you
believe in God?” Defendant responded yes. The detective then said, “Is God gonna
accept you at the pearly gates, man, you’re sitting here lying to two detectives who know
what . . . they’re doing?”
              The officer then asked defendant, “Did you . . . shoot that guy?” Defendant
asked, “Now, before I answer this question, will I ever see daylight?” A detective
responded, “That’s up to the D.A. to decide. I can’t make promises, dude. I don’t know.
I could tell you one thing. By the time you get out, I’ll be retired. That’s only eight more
months.”
              Defendant then admitted he shot Lopez, repeating his claim that Lopez
reached for something in his waistband and it “looked like . . . he was gonna pull out a
gun.”
              Defendant also said he had snorted “About ten lines” of cocaine earlier that
evening. In addition, he said the man with him was not named “Jose,” but was a “tagger”
nicknamed “Rampage” that “kicks with the . . . West Side Compadres.” After the
shooting, defendant ran to the Suburban which was parked in a commercial area with one
of the women at the wheel. He later burned the clothes he was wearing that night. At the
end of the interrogation, defendant continued to ask if he was facing a life sentence. The
officers responded “that’s not our decision to make,” but noting he was “a young man,”

                                            11
“there’s always the . . . possibility of you getting out.” The detectives obtained a buccal
swab from defendant to test his DNA, noting the time as “2221.”


              2.3. Analysis
              Defendant initially suggests the detectives violated his right to counsel by
questioning him “without the consent or presence of [the] lawyer” appointed to represent
him on the firearm charge. “[T]he Sixth Amendment right to counsel is ‘offense
specific’; it arises and may be asserted only as to those offenses for which criminal
proceedings have formally begun,” and “[a] defendant’s incriminating statements about
offenses for which he has not been charged may be admitted consistently with his Sixth
Amendment counsel guarantee notwithstanding its attachment on other charged offenses
at the time.” (People v. DePriest (2007) 42 Cal.4th 1, 33; see Texas v. Cobb (2001) 532
U.S. 162, 167 [121 S.Ct. 1335, 149 L.Ed.2d 321]; People v Slayton (2001) 26
Cal.4th 1076, 1082 [right to counsel does not extend “to ‘“‘closely related’”’ or
‘“‘inextricably intertwined’”’ uncharged offenses”].)
              Without citing to the record, defendant claims “the detectives did question
[him] about the presence of the firearm in the Suburban.” The record fails to support this
assertion.
              The pending charge was possession of a loaded firearm and the detectives
told defendant they wanted to talk to him about an incident that had “absolutely nothing
to do with why you’re currently in jail.” On a few occasions defendant brought up the
pending firearm charge, but the detectives said they were “gonna stay away from that
because you got certain rights and we don’t wanna . . . violate those.” Further,
subsequent references to the gun focused on Lopez’s murder, not the fact defendant
subsequently possessed a loaded weapon. When defendant claimed “Jose” “pulled out a
strap” and shot a man over a personal “beef,” a detective asked, “What kind of strap was
it?” Defendant responded, “[t]he strap that I’m going down for.” Later, before defendant

                                             12
acknowledged he shot Lopez, one detective mentioned the discovery of “a gun in your
car,” and commented, “I can’t comprehend why you still have the strap.” What’s more,
the current prosecution does not include the possession charge. Thus, we find no
violation of defendant’s Sixth Amendment right to counsel occurred in this case.
              The record also reflects the prosecution carried its burden of showing
defendant’s statements were voluntary. To be voluntary, the confession or statement
must be “the product of [the defendant’s] free and rational choice.” (Greenwald v.
Wisconsin (1968) 390 U.S. 519, 521 [88 S.Ct. 1152, 20 L.Ed.2d 77]; see People v.
McWhorter (2009) 47 Cal.4th 318, 346.) In determining voluntariness, “the question in
each case is whether the defendant’s will was overborne at the time he confessed.”
(Lynumn v. Illinois (1963) 372 U.S. 528, 534 [83 S.Ct. 917, 9 L.Ed.2d 922]; see People v.
McWhorter, supra, 47 Cal.4th at pp. 346-347.) “[B]oth state and federal . . . courts apply
a ‘totality of circumstances’ test to determine the voluntariness of a confession.” (People
v. Massie (1998) 19 Cal.4th 550, 576.) “[C]oercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary’” (Colorado v. Connelly
(1986) 479 U.S. 157, 167 [107 S.Ct. 515, 93 L.Ed.2d 473]; see People v. Hensley (2014)
59 Cal.4th 788, 814), “but [coercion] does not itself compel a finding that a resulting
confession is involuntary.” (People v. Bradford (1997) 14 Cal.4th 1005, 1041.) Other
“factors to be considered are ‘“. . . the length of the interrogation [citation]; its location
[citation]; its continuity” as well as “the defendant’s maturity [citation]; education
[citation]; physical condition [citation]; and mental health.”’” (People v. Massie, supra,
19 Cal.4th at p. 576.)
              “The state must demonstrate the voluntariness of a confession by a
preponderance of the evidence.” (People v. Hensley, supra, 59 Cal.4th at p. 812; see
Lego v. Twomey (1972) 404 U.S. 477, 489 [92 S.Ct. 619, 30 L.Ed.2d 618].) Generally,
“the trial court’s findings as to the circumstances surrounding the confession are upheld if
supported by substantial evidence, but the trial court’s finding as to the voluntariness of

                                               13
the confession is subject to independent review.” (People v. Massie, supra, 19 Cal.4th at
p. 576.) Since this case involves a videotaped interrogation and there is no dispute
concerning the facts surrounding it, we independently review the trial court’s ruling.
(People v. McWhorter, supra, 47 Cal.4th at p. 346.)
              The trial court properly admitted the videotape of defendant’s interrogation.
At the time, defendant was young but had, by his own admission, completed two years of
college with his studies focused on criminal justice. In addition, through his gang ties
defendant had previous contacts with the police.
              Defendant was in custody on the firearm charge during the interrogation.
But the detectives informed him of his constitutional rights and he agreed to speak with
them. Based on defendant’s responses to the detectives’ questions and his repeated
queries about his potential punishment, defendant’s assertion he was sleep deprived is
unavailing.
              While the parties agree the questioning lasted “for over three hours,” the
transcript indicates it was only slightly over two hours in length. One detective noted the
time as 8:14 p.m. when the interrogation began. After it ended, the detectives obtained
defendant’s DNA sample, noting the time as “2221,” i.e., 10:21 p.m. In any event,
defendant fails to present any authority that a three and one-half hour interrogation
rendered his confession involuntary as a matter of law. (Berghuis v. Thomkins (2010)
560 U.S. 370, 387 [130 S.Ct. 2250, 176 L.Ed.2d 1098] [three hour interrogation while
sitting in straight-backed chair; “there is no authority for the proposition that an
interrogation of this length is inherently coercive”].)
              Defendant complains the detectives used deception, lying to him about the
existence of surveillance cameras recording his presence in Santa Ana on the night of
Lopez’s murder and that they had talked to other witnesses who identified him as the
shooter. “[T]he use of deceptive comments does not necessarily render a statement
involuntary. Deception does not undermine the voluntariness of a defendant’s statements

                                              14
to the authorities unless the deception is ‘“‘of a type reasonably likely to procure an
untrue statement.’”’ [Citations.] ‘“The courts have prohibited only those psychological
ploys which, under all the circumstances, are so coercive that they tend to produce a
statement that is both involuntary and unreliable.”’” (People v. Williams (2010) 49
Cal.4th 405, 443; see People v. Hensley, supra, 59 Cal.4th at p. 813.) The record fails to
reflect the detectives’ falsehoods constituted prohibited deception.
               Nor did the detectives make any promises of leniency to encourage
defendant’s admission that he shot Lopez. Rather, they acknowledged he was facing
“serious charges” and repeatedly told him, both before he confessed and afterwards, “we
don’t know” how long of a prison sentence he might receive. As the trial court noted, he
continued to ask the detectives if he was “facing life” after he confessed. In fact,
defendant’s own statements suggest he knew it would likely be a life sentence.
               Finally, the single reference to God did not render the confession
involuntary. It is improper for the police to employ “‘[t]he tactic of exploiting a suspect’s
religious anxieties[,]’” but where “police comments are not ‘calculated to exploit a
particular psychological vulnerability of [the] defendant,’ and ‘no acute religious anxiety
or sense of guilt was apparent from prior questioning,’ appeals to religion are unlikely to
be a motivating cause of a defendant’s subsequent confession.” (People v. Carrington
(2009) 47 Cal.4th 145, 176; see People v. Kelly (1990) 51 Cal.3d 931, 951, 953
[questions about whether the defendant “believe[d] in Jesus” and if he received “a
Christian upbringing” did not “appear to have been calculated to exploit a particular
psychological vulnerability of defendant” since “no acute religious anxiety or sense of
guilt was apparent from prior questioning”].) As in Kelly, defendant fails to cite to
anything suggesting he was a deeply religious person or that the detectives were
attempting to exploit his beliefs. (See Berghuis v. Thomkins, supra, 560 U.S. at p. 387
[“question[s] referr[ing] to [suspect’s] religious beliefs . . . did not render . . . statement
involuntary”].)

                                               15
              Viewing the totality of the circumstances surrounding the interrogation, we
conclude defendant’s statements were voluntary and the trial court properly admitted the
videotape of his interrogation at trial.


3. There was no prejudicial instructional error.
              3.1. Background
              Count 1 of the information alleged defendant violated Penal Code
section 187, subdivision (a), by “unlawfully and with malice aforethought kill[ing]”
Lopez. But at trial, the prosecution relied solely on a felony-murder theory, arguing he
killed Lopez during an attempted robbery.
              During a hearing on jury instructions, the following colloquy occurred:
“The Court: There doesn’t appear to be under the state of the evidence thus far any lesser
included offenses. The prosecution is taking that position. [¶] Mr. Fascenelli [defense
counsel], what’s your position on that? [¶] Mr. Fascenelli: I don’t think there are any
lesser included offenses that are sua sponte that need to be included. [¶] The Court: Let
me ask then, may I presume that absent a request for them, you have tactically chosen not
to request them? [¶] Mr. Fascenelli: Yes.”
              Defendant now argues the trial court’s failure to instruct, sua sponte, on
second degree murder, voluntary manslaughter, and involuntary manslaughter constituted
reversible error. We disagree.


              3.2. Analysis
              “In criminal cases, even absent a request, a trial court must instruct on the
general principles of law relevant to the issues the evidence raises. [Citation.] ‘“That
obligation has been held to include giving instructions on lesser included offenses when
the evidence raises a question as to whether all of the elements of the charged offense
were present [citation], but not when there is no evidence that the offense was less than

                                             16
that charged. [Citations.]”’ [Citation.] ‘[T]he existence of “any evidence, no matter how
weak” will not justify instructions on a lesser included offense, but such instructions are
required whenever evidence that the defendant is guilty only of the lesser offense is
“substantial enough to merit consideration” by the jury.’” (People v. Taylor (2010) 48
Cal.4th 574, 623; see People v. Banks (2014) 59 Cal.4th 1113, 1159.) “‘On appeal, we
review independently the question whether the trial court improperly failed to instruct on
a lesser included offense.’” (People v. Banks, supra, 59 Cal.4th at p. 1160.)
              The Attorney General argues defendant invited the error because his trial
attorney “told the trial court it was his tactical decision not to request instruction on lesser
included offenses.” But “[t]he obligation to instruct on lesser included offenses exists
even when a defendant, as a matter of trial tactics, objects to their being given.” (People
v. Breverman (1998) 19 Cal.4th 142, 154.) While “the doctrine of invited error will
operate to preclude a defendant from gaining reversal on appeal because of such an error
made by the trial court at the defendant’s behest” (People v. Duncan (1991) 53
Cal.3d 955, 969), it only applies where “‘it [is] clear from the record that defense counsel
made an express objection to the relevant instructions,’” and “‘that counsel acted for
tactical reasons and not out of ignorance or mistake’” (People v. Bunyard (1988) 45
Cal.3d 1189, 1234). The record in this case fails to clearly establish these requirements.
Defense counsel did not object to a proposal to give lesser included instructions on count
1, but merely acceded to the trial court’s conclusion no lesser included offenses were
necessary and agreed he was doing so for unspecified tactical reasons. (People v. Valdez
(2004) 32 Cal.4th 73, 115 [defense counsel’s statement he “did ‘not want to request any
lessers’” too ambiguous to apply . . . doctrine].) Even so, on the merits we find no
prejudicial instructional error occurred.




                                              17
              3.2.1. Second Degree Murder
              Both parties acknowledge the Supreme Court has, to date, not decided
whether second degree murder is a lesser included offense of felony murder. (People v.
Castaneda (2011) 51 Cal.4th 1292, 1328-1329; People v. Taylor, supra, 48 Cal.4th at p.
623; People v. Wilson (2008) 43 Cal.4th 1, 16, fn. 5; People v. Valdez, supra, 32
Cal.4th at pp. 114-115, fn. 17.) However, the prosecution charged defendant with malice
murder under Penal Code section 187, subdivision (a). Thus, “under the accusatory
pleading test, second degree murder was plainly a lesser included offense of felony
murder as charged.” (People v. Banks, supra, 59 Cal.4th at p. 1160.) Further, at least
two appellate court decisions have held a sua sponte duty to instruct on second degree
murder exists if the evidence fails to indisputably show a homicide committed during the
course of one of the felonies listed in Penal Code section 189. (People v. Campbell
(2014) 227 Cal.App.4th 746, 763 [defendant testified he did not know robbery in
progress and began “shooting at people as a ‘reaction’ to the situation and with ‘no idea
what was going on[]’”]; People v. Anderson (2006) 141 Cal.App.4th 430, 447
[“Defendant’s description of the chain of events, combined with the pathologist’s
testimony, constituted substantial evidence to support a conclusion that defendant did not
decide to take the victim’s money until he had been mortally wounded”].)
              Defendant claims his “contradictory” statements to the detectives during
the interrogation made it “reasonable for a properly instructed jury to doubt” Lopez was
killed during an attempted robbery, and that the use of the gun could be viewed as an
inherently dangerous grossly negligent discharge of a firearm. Even assuming
defendant’s argument has merit, any error in failing to instruct on second degree murder
was harmless.
              First, the Supreme Court’s recent decision in Banks holds that the mere
presence of substantial evidence to justify a second degree murder instruction where the
prosecutor relies solely on a felony-murder theory is not sufficient to support reversal.

                                             18
There the defendant approached a man named Foster near an automated teller machine
(ATM) and, after a brief discussion, shot and killed him. As here, there was no evidence
the defendant stole anything from Foster and, while the prosecution charged the
defendant with malice murder, at trial it proceeded solely on a felony-murder theory.
(People v. Banks, supra, 59 Cal.4th at pp. 1157-1158.)
              While agreeing “[t]he evidence of second degree murder in the Foster
shooting, though not particularly strong, was sufficient to obligate the trial court to
instruct on second degree murder” (People v. Banks, supra, 59 Cal.4th at p. 1160),
the Supreme Court found the error harmless. “Our precedent holds that an erroneous
failure to instruct the jury on a lesser included offense is subject to harmless error
analysis . . . and that evidence sufficient to warrant an instruction on a lesser included
offense does not necessarily amount to evidence sufficient to create a reasonable
probability of a different outcome had the instruction been given. [Citations.] Here,
there is no reasonable probability that the evidence of an argument between [the]
defendant and Foster, minimal as it was, would have led the jury, had it been properly
instructed, to conclude that [the] defendant shot Foster at the ATM out of malice
unrelated to any robbery. As the trial court observed, even though there was ‘some
evidence’ otherwise, the far more plausible inference is that the ‘fellow was killed at the
A.T.M. to try to get money.’ Thus, the trial court’s failure to instruct on second degree
murder was harmless.” (Id. at p. 1161.)
              The same is true here. Nothing in defendant’s statements justifies his
grossly negligent discharge of a firearm argument. Regardless of who shot Lopez and
why, defendant acknowledged the shooter fired several times. Further, only the first of
defendant’s three contradictory explanations about how the shooting occurred, i.e., “Jose”
shot Lopez over a personal “beef,” suggests a motive other than robbery. That weak
inference pales in comparison with the evidence pointing towards robbery as the reason
defendant and his confederate accosted Lopez. The other two explanations, which only

                                              19
differ on the issue of who wielded the gun, are premised on an attempted robbery.
Madrigal’s testimony also bolsters the theory of a killing during an attempt to commit
robbery. He testified two men in hooded sweatshirts with the hoods pulled over their
heads ran up behind Lopez and grabbed him in a chokehold. At that point, Madrigal’s
car was struck by a bullet. After going around the block, Madrigal saw the Suburban
positioned as a getaway vehicle with the hooded assailants running towards it.
              Second, the jury in this case also returned a true finding on the felony-
murder special circumstance allegation. In Castaneda, the Supreme Court held a true
finding on felony-murder special circumstance allegations eliminated any prejudice from
the failure to instruct on second degree murder as a lesser included offense. “Because
‘the elements of felony murder and the special circumstance[s] coincide, the true
finding[s] as to the . . . special circumstance[s] establish[] here that the jury would have
convicted defendant of first degree murder under a felony-murder theory, at a minimum,
regardless of whether more extensive instructions were given on second degree murder.
[Citations.]’ [Citation.] Therefore, the jury necessarily found defendant guilty of first
degree felony murder, and any error in not instructing the jury concerning second degree
murder was harmless beyond a reasonable doubt.” (People v. Castaneda, supra, 51
Cal.4th at p. 1328; see People v. Huynh (2012) 212 Cal.App.4th 285, 315 [same].) The
same is true here.


              3.2.2. Manslaughter
              Defendant’s arguments that the court was also obligated to instruct on
voluntary and involuntary manslaughter are equally meritless. As discussed above,
defendant’s statements indicate Lopez was intentionally shot either because of a personal
“beef” or when he reached for a weapon while the assailants were attempting to rob him.
There is no evidence other than sheer speculation that Lopez’s killing resulted from
criminal negligence or that defendant and his confederate were only attempting to falsely

                                              20
imprison the victim. “Speculation is an insufficient basis upon which to require the
giving of an instruction on a lesser offense.” (People v. Wilson (1992) 3 Cal.4th 926,
941; see People v. Castaneda, supra, 51 Cal.4th at pp. 1330-1331 [applying rule to
voluntary manslaughter].)
              Defendant argues he was entitled to an instruction on voluntary
manslaughter on the theory of imperfect self-defense because he told the detectives
Lopez “suddenly reached and retrieved an[] object, and . . . a utility knife was found in
[his] hand.” But defendant mentioned Lopez’s attempt to reach for a weapon only when
claiming he and his confederate attempted to rob the victim. Since “defendant’s
testimony showed him to be the initial aggressor and the victim’s response legally
justified, defendant could not rely on unreasonable self-defense as a ground for voluntary
manslaughter.” (People v. Seaton (2001) 26 Cal.4th 598, 664 [rejecting imperfect self-
defense]; see People v. Balderas (1985) 41 Cal.3d 144, 196-197 [rejecting heat of passion
instruction claim: “This court has concluded, under similar circumstances and without
extended discussion, that ‘predictable conduct by a resisting victim’ of a felony cannot
‘constitute the kind of provocation sufficient to reduce a murder charge to voluntary
manslaughter’”].) Thus, defendant’s imperfect self-defense argument lacks merit.


4. There was no prosecutorial misconduct.
              Defendant contends the prosecutor committed misconduct both during his
closing and rebuttal arguments.


              4.1. The “last link” Comment
              When the prosecutor began his closing argument, he made the following
statement: “You’re the last link in this system. You are the last link. You get to decide
what the facts are, not me, not the defense attorney, not the judge. You do and then you
get the wonderful job, which you may not realize it now, but it will be the wonderful job

                                            21
of holding the defendant accountable for what he did that night or that morning. He
killed an innocent man in cold blood and I hope you realize what a powerful job you have
and what a wonderful job it is, that you get to hold him responsible for that, because it’s
not going to be me, it’s not the defense attorney, it’s not the judge. You are the last link
in this system and it’s an incredibly important job that you do. So we thank you for your
time.” Defendant argues the prosecutor’s “last link” comment “suggested to the jury that
it is just a link in the chain of law enforcement,” thereby both aligning the jury with the
state and minimizing its role in determining his guilt or innocence.
              No misconduct occurred. “‘The standards governing review of misconduct
claims are settled. “A prosecutor who uses deceptive or reprehensible methods to
persuade the jury commits misconduct, and such actions require reversal under the
federal Constitution when they infect the trial with such ‘“unfairness as to make the
resulting conviction a denial of due process.”’ [Citations.] Under state law, a prosecutor
who uses such methods commits misconduct even when those actions do not result in a
fundamentally unfair trial.”’” (People v. Gonzales (2012) 54 Cal.4th 1234, 1275.)
              Misstating the applicable law during closing argument constitutes
misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 435.) But “the arguments of
counsel, like the instructions of the court, must be judged in the context in which they are
made.” (Boyde v. California (1990) 494 U.S. 370, 385 [110 S.Ct. 1190, 108 L.Ed.2d
316].) In reviewing a misconduct claim “based on the prosecutor’s comments 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.
Friend (2009) 47 Cal.4th 1, 29.)
              As for the “last link” statement, we first note defendant forfeited the issue.
“‘“In order to preserve a claim of misconduct, a defendant must make a timely objection
and request an admonition; only if an admonition would not have cured the harm is the
claim of misconduct preserved for review.”’” (People v. Gonzales, supra, 54 Cal.4th at

                                             22
p. 1275.) No objection or request for an admonition was made during trial respecting this
statement. In his reply brief, defendant notes he did cite the prosecutor’s “last link”
statement in his motion for a new trial. This contention is contrary to the law. (People v.
Williams (1997) 16 Cal.4th 153, 254 [rejecting the defendant’s “suggest[ion] he
adequately preserved a prosecutorial misconduct claim by objecting ‘in the context of a
motion for new trial[]’”].)
              Even on the merits, defendant’s argument is unavailing. While there appear
to be no California cases on whether it is improper for a prosecutor to describe the jury as
the “the last link in th[e] system,” federal decisions have considered circumstances where
such comments may viewed as improper.
              In Tucker v. Kemp (11th Cir. 1985) 762 F.2d 1480, judgment vacated and
cause remanded (1985) 474 U.S. 1001 [106 S.Ct. 517, 88 L.Ed.2d 452], the prosecutor
told the jury during the sentencing phase of a capital case that although it was “the last
link” in the process leading to a death verdict, the decision “does not rest on your
shoulders” because “it’s no more up to you than it is to anybody else, the grand jury or
the police, or the district attorney’s office. All of us are coming in and doing our duty.”
(Id. at p. 1485.) The court of appeals held the argument was improper since it had “the
effect of trivializing [the jury’s] importance.” (Ibid.)
              Also, in Coleman v. Brown (10th Cir. 1986) 802 F.2d 1227, the court
criticized a prosecutor’s argument during the trial’s guilt phase “that, following the
police, the witnesses, and the district attorney’s office, the jury was the final link in the
chain of law enforcement” (id. at p. 1238), finding it improper on two grounds. First, the
comment “misstate[d] the role of the jury, placing it in an adversarial position with
respect to the defendant,” and second, it “tend[ed] to trivialize the jury’s importance” by
“suggesting that the jury is only the last link in a long decision” (ibid.).
              This case is distinguishable from Tucker and Coleman. Here, the
prosecutor referred to the jury as “the last link” the fact finding process. He juxtaposed

                                              23
the jury’s role with that of the court and the parties in determining whether defendant was
guilty of the charged crimes. Further, unlike the federal decisions, the prosecutor’s “last
link” comment described the jury’s role as “an incredibly important job,” rather than
trivializing it. Thus, we agree with the trial court’s conclusion that the prosecutor’s
comment did not seek “to abrogate or lessen the jury’s role or their responsibility.”
(People v. Brown (2003) 31 Cal.4th 518, 553-554 [“‘we “do not lightly infer” that the
jury drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements’”].)


              4.2. The Jigsaw Puzzle PowerPoint
              During rebuttal, the prosecutor displayed a PowerPoint diagram
depicting a jigsaw puzzle of an elephant with several pieces missing. The diagram
was entitled, “Look at all of the evidence together.” Referring to the diagram, the
prosecutor argued: “Defense counsel wants you to look at these missing pieces of the
puzzle, . . . DNA, GSR. . . . [T]hat’s why I use this exhibit – when you stand back and
look at everything, . . . it really shows you what’s going on in this case. [¶] If you just
focus on the right corner of this puzzle [depicting part of the elephant’s trunk], it’s a great
curled something, I don’t know. I’m just focusing on this one piece. I don’t know what
it is. That’s what defense counsel wants you to do. Focus on each piece. [¶] I ask you to
put all the pieces together and look at the picture. When you look at all the pieces of this
puzzle together, even though there’s some pieces missing, you really get an idea of what
happened that night.”
              After jury deliberations began, the defense moved for a mistrial, citing the
jigsaw puzzle. The court found the objection timely but denied the motion, concluding
the prosecutor did not “use[] the puzzle to equate it to the reasonable doubt standard.”
Nonetheless, during a break in the jury’s deliberations, the trial court gave it the
following admonishment. “At the tail end of [the prosecutor’s] final argument yesterday,

                                              24
you may remember he put up a picture, it was a puzzle with some pieces
missing . . . . He never equated that in his argument to the reasonable doubt standard. I
just wanted to make sure all of you understood that that’s not the way reasonable doubt
works. . . . [¶] If anybody was confused about that, then I want you to disregard the
whole puzzle analogy because reasonable doubt is not like looking at a picture of a
puzzle. The definition is the one that I have now twice given you. You have it in your
formal instructions, you are to be guided by my instruction on reasonable doubt and not
try to quantify it into any slides or diagrams you may have seen during closing
argument.”
              Defendant now claims the prosecutor employed it “to illustrate the
reasonable doubt standard,” and “conveyed an impression of a lesser standard of
proof.” We disagree.
              In People v. Katzenberger (2009) 178 Cal.App.4th 1260, the court held a
prosecutor committed misconduct by using a partially completed jigsaw puzzle of the
Statue of Liberty to explain reasonable doubt. “The presentation, with the prosecutor’s
accompanying argument, leaves the distinct impression that the reasonable doubt
standard may be met by a few pieces of evidence” and “invite[d] the jury to guess or
jump to a conclusion, a process completely at odds with the jury’s serious task of
assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id.
at p. 1267.) Katzenberger also held use of a puzzle with a few missing pieces suggested
an improper quantification of the reasonable doubt standard. (Id. at pp. 1267-1268.)
              In People v. Otero (2012) 210 Cal.App.4th 865, this court followed
Katzenberger, finding a prosecutor committed misconduct by attempting to explain the
concept of reasonable doubt with a diagram depicting the outlines of the states of
California and Nevada along with symbols and city names, albeit with some of the
information in an incorrect location. In addition, the diagram bore the title “‘No
Reasonable Doubt’” and contained the statement “‘Even with incomplete and incorrect

                                            25
information, no reasonable doubt that this is California.’” (Id. at p. 869.) We held, “The
use of a diagram such as the one used in this case is simply not an accurate analogy to a
prosecutor’s burden to prove beyond a reasonable doubt each and every element of a
charged offense.” (Id. at p. 873.)
              Again, the jigsaw puzzle and the prosecutor’s concomitant argument is
materially distinguishable from the foregoing cases. Contrary to Katzenberger and
Otero, the prosecutor employed the elephant puzzle, not to explain the concept of
reasonable doubt, but to counter defense counsel’s focus on evidence the prosecution
failed to present. The diagram was entitled, “Look at all of the evidence together,” and
the prosecutor argued, “When you look at all the pieces of this puzzle together, even
though there’s some pieces missing, you really get an idea of what happened that night.”
              In addition, when denying defendant’s motion for a new trial, the trial court
below found “any error” in the prosecutor’s use of the elephant jigsaw puzzle to be
“minimal” and “cured by the . . . admonition.” We agree.
              Further, even that “minimal” error was cured by the trial court’s
admonishment that the jury not confuse the puzzle with the concept of reasonable doubt,
but “be guided” by “[t]he definition” of reasonable doubt “that I have now twice given
you.” Both Katzenberger and Otero found the misconduct in those cases harmless
because the trial court either clarified what constituted reasonable doubt (People v.
Katzenberger, supra, 178 Cal.App.4th at pp. 1268-1269), or admonished the jury to
disregard the prosecutor’s diagram (People v. Otero, supra, 210 Cal.App.4th at p. 873).
(People v. Wash (1993) 6 Cal.4th 215, 263 [“We presume that the jury heeded the
admonition”].) Here, the admonishment also eliminated any potential harm.




                                            26
5. Defendant was not denied the effective assistance of counsel at trial.
              5.1. Background
              During closing argument, defendant’s trial counsel attacked the credibility
of the confession and focused on the missing forensic evidence to corroborate it. He
claimed defendant was tired when the detectives questioned him and he merely adopted
“everything that the police thr[e]w out for him to latch onto.” Counsel asserted defendant
only confessed after the detectives suggested he would get a short prison sentence by
doing so. “They’re saying he’s lying. So why would you believe him in the end? Just
because that’s the path they want you to believe. We’re going to throw out different
. . . things for him to grab hold to, and that’s what they do. . . . [¶] So why believe the
end . . . [i]f you’re not going to believe the beginning.”
              Further, counsel emphasized what he described as the lack of corroborating
evidence for the confession. “[W]here’s your corroboration? Don’t you want to
corroborate what he says . . . .” “You’ve got to look at that long and arduous interview,
and you will see the progression. And my question . . . is, well, if you’re going to believe
the end, you have to . . . vet the answers that [defendant] gives the police. You have to
vet them for truthfulness. They didn’t do that.”
              Finally, defense counsel argued defendant likely confessed to protect his
gang. “You don’t have to believe the confession because the confession was full of a
bunch of baloney at the beginning, and a bunch of baloney at the end, and why? Is there
a motivation for that? You bet, because the officer told you, they’ll do anything for their
gang. They’ll lie for their gang, they’ll accept responsibility for the gang because at the
very end, he doesn’t want to be a rat. Fine. Eight months? I’ll take it.”
              After trial, the court granted defendant’s request to relieve Fascenelli as his
attorney and appointed the public defender to represent him. Subsequently, the defense
moved for a new trial, in part arguing Fascenelli failed to competently represent him.



                                              27
The grounds included Fascenelli’s alleged inadequate investigation of the case, plus his
failure to call witnesses, and request jury instructions.
               At a hearing on the motion, Fascenelli testified on his experience in
handling criminal matters generally and defendant’s case in particular. He said he
discussed aspects of the case with defendant on several occasions either in person or by
telephone. Fascenelli consulted with his investigator, a former police officer, about the
firearm but otherwise did not contact any other experts. Fascenelli concluded the best
approach to defending the case was to challenge the veracity of defendant’s confession.
               The trial court denied the motion. The court concluded it could not find
“Mr. Fascenelli’s representation fell below an objective standard of reasonableness,”
citing his “tactical decision to attack and discredit . . . the confession . . . on multiple
levels” and also argue “the police did nothing to test the physical evidence to corroborate
the defendant’s statements.”


               5.2. Analysis
               On appeal, defendant reasserts the ineffective assistance of counsel claim.
He argues Fascenelli breached his professional duty by failing to investigate and call
potentially exculpatory witnesses, and attacks the failure to request jury instructions on
the crimes of second degree murder and voluntary and involuntary manslaughter.
               “‘When the basis of a challenge to the validity of a judgment is
constitutionally ineffective assistance by trial counsel, the petitioner must establish either:
(1) As a result of counsel’s performance, the prosecution’s case was not subjected to
meaningful adversarial testing, in which case there is a presumption that the result is
unreliable and prejudice need not be affirmatively shown [citations]; or (2) counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, and there is a reasonable probability that, but for counsel’s
unprofessional errors and/or omissions, the trial would have resulted in a more favorable

                                               28
outcome.’ [Citation.] . . . [A] ‘“‘reasonable probability is defined as one that undermines
confidence in the verdict.’”’ [Citation.]’” (People v. Carrasco (2014) 59 Cal.4th 924,
982.)
              “Judicial scrutiny of counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. . . . Because of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.” (Strickland v. Washington (1984) 466 U.S. 668, 689 [104 S.Ct. 2052, 80
L.Ed.2d 674]; see People v. Brown (2014) 59 Cal.4th 86, 109.) Thus, in considering an
ineffective assistance of counsel claim on appeal, we “defer to counsel’s reasonable
tactical decisions” (People v. Lucas (1995) 12 Cal.4th 415, 436), and “‘“will reverse
convictions on the ground of inadequate counsel only if the record on appeal
affirmatively discloses that counsel had no rational tactical purpose for his act or
omission[]”’” (People v. Bradford, supra, 14 Cal.4th at p. 1052).


              5.2.1. Failure to Request Jury Instructions
              Defendant’s claim that Fascenelli was incompetent by not requesting
instructions on second degree murder and manslaughter is based on the same arguments
we have previously found lack merit. For the same reasons, the ineffectiveness claim for
not requesting jury instructions on lesser included crimes is also unavailing.




                                             29
                5.2.2. Failure to Investigate Potentially Exculpatory Witnesses
                Defendant argues Fascenelli “failed to contact, interview, and subpoena for
trial several crucial defense witnesses.” To succeed on the claim, he “must carry his
burden of proving prejudice as a ‘demonstrable reality,’ not simply speculation as to the
effect of the errors or omissions of counsel” by “demonstrat[ing] that counsel knew or
should have known that further investigation was necessary, and must establish the nature
and relevance of the evidence that counsel failed to present or discover.” (People v.
Williams (1988) 44 Cal.3d 883, 937; see People v. Nguyen (2010) 184 Cal.App.4th 1096,
1121.)


                5.2.2.1. Marco Padilla
                The first allegedly exculpatory witness was Marco Padilla (sometimes
erroneously referred to as Perez in the police report). An officer interviewed Padilla the
day after Lopez’s murder. Padilla said he lived in a mobile home and his living room
window faced onto the street where the murder occurred. According to the police report,
“Between 11:30 P.M. and 12:00 A.M., [Padilla] looked out his living room window and
saw three male juveniles running northbound [on] Sullivan Street along the east side of
the street. [Padilla] then saw a 1985 to early ‘90s Dodge Intrepid drive northbound at a
very slow speed with its headlights out. Shortly thereafter, he heard three to four
gunshots. [Padilla] did not see the three subjects or the vehicle after the shots were
fired.” He gave a description of the juveniles’ clothing and the vehicle’s color, but
“could not see inside the vehicle nor cou[]ld he provide a driver description. [Padilla]
suspects the vehicle was following the three subjects. He could provide no additional
information.”
                When contacted by an investigator from the public defender’s office several
years later, Padilla said “he looked out his living room window” after hearing “the sound
of screeching tires.” He “saw three males in a 1995-97, dark, 2-door Honda Accord with

                                             30
the car’s headlights out. The Honda was driving at a fast speed before it came to a stop in
the middle of the street and two guys got out through the passenger door. The two males
started running after a guy . . . headed north on Sullivan. . . . When the suspects got
closer to the victim, one male extended his arm and shot the victim multiple times. Some
of the shots may have hit a car. Mr. Padilla saw the victim fall down. About three
minutes later the police arrived and assisted the victim.”
              Calling Padilla as a witness would not have assisted defendant’s case. For
one thing, his initial statement contradicted the undisputed and physical evidence. Lopez
was in his late 40’s. He made his 9-1-1 call at 12:19 a.m., nearly 20 minutes after
Padilla’s time estimate. And the police found six shell casings at the scene, a third to a
half more than the number of shots Padilla claimed he heard. Second, Padilla’s later
statement to the public defender’s investigator contradicted his prior statement in several
material respects. Had he so testified at trial, would have been severely impeached on
that ground as well.


              5.2.2.1. Defendant’s Parents
              The public defender attached declarations from defendant’s parents to the
new trial motion. They attested that the Suburban belonged to them. After defendant’s
arrest they recovered the vehicle. At that time there was no sweatshirt in the Suburban.
Defendant’s father declared that the day before the police impounded the Suburban, he
used it to make a delivery and claimed, “Sometimes when I go out for a delivery[,] I take
my gray zip-up hooded sweatshirt . . . with me . . . . [¶] . . . I do not specifically
remember if I took the gray sweatshirt with me for my delivery . . . . [¶] . . . My gray
sweatshirt did go missing around that time.”
              Defendant argues that, if called as witnesses at trial, his parents could have
explained the sweatshirt belonged to his father (Mr. Ruedas) and that “the sweatshirt was
placed in the vehicle by Mr. Ruedas after his son’s arrest . . ., and before the Suburban

                                               31
was seized and searched by the police.” But Mr. Ruedas acknowledged he could not
swear he placed the sweatshirt in the Suburban when he used it the day before the police
impounded it. Further, defendant claimed he either threw away or burned the clothes he
was wearing the night Lopez was murdered to avoid the discovery of any gun powder
residue. What’s more, the sweatshirt’s ownership and location a week after Lopez’s
murder was collateral to the issues in this case. The parents’ declarations did not assert
defendant never used his father’s sweatshirt or that Mr. Ruedas possessed it the night
Lopez was killed. In addition, Fascenelli could have concluded that, given the obvious
close relationship to defendant, his parents’ testimony would have been of little
assistance in light of their son’s confession.


              5.2.2.3. The False Confession Expert
              Finally, defendant claims Fascenelli should have “consult[ed] with an
expert on coerced and false confessions.” He refers to a psychologist contacted by the
public defender who apparently was prepared to testify defendant’s “interrogation was
psychologically coercive and that the detectives used several interrogation techniques that
increased the risk of eliciting a false and unreliable confession.”
              This argument ignores the fact defendant’s purported “false confession”
was consistent with the physical and undisputed evidence and Madrigal’s testimony.
Madrigal saw two individuals wearing hooded sweatshirts run up to and assault Lopez
and shortly thereafter saw the same two hooded persons fleeing towards a Suburban
parked in a nearby shopping center. Defendant acknowledged he and his confederate
were wearing hooded sweatshirts when they accosted Lopez and that after shooting him,
fled to the waiting Suburban. Defendant said he shot Lopez when the victim reached for
what he thought was a weapon. The police found a box cutter in one of Lopez’s hands.
Defendant admitted firing the gun six or seven times, and the police also recovered six
shell casing at the murder scene.

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             Defendant argues his confession resulted from suggestions contained in the
detectives’ questions. Not exactly. While the police said they knew defendant was in
Santa Ana the night of Lopez’s murder, it was defendant who acknowledged he was in
the area of the murder at the time it occurred. The police said that someone was hurt
during an assault, but again it was defendant who first mentioned the use of a gun to
shoot someone. It was also defendant who acknowledged he and his confederate were
wearing hooded sweatshirts and gloves and that he shot Lopez six or seven times. We
conclude calling a false confession expert likely would have hurt rather than help
defendant’s cause.
             Consequently, defendant has failed to establish his ineffective assistance of
counsel claim.


                                     DISPOSITION


             The judgment is affirmed.




                                                 RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.




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