People v. Ellis CA2/1 ( 2021 )

Filed 12/27/21 P. v. Ellis CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309298
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA465051)
v.
BYRON ELLIS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Craig E. Veals, Judge. Affirmed.
Christopher Muller, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Byron Ellis was convicted by a jury of one count
of criminal threats and one count of assault by means of force
likely to produce great bodily injury. The jury also found that
Ellis personally inflicted great bodily injury upon the victim of
the assault. The trial court sentenced Ellis to an aggregate term
of seven years in state prison.
On appeal, Ellis raises the following claims: (1) Trial
counsel violated Ellis’s Sixth Amendment rights by conceding his
guilt to the lesser included offense of simple assault over Ellis’s
express objection; (2) the trial court erroneously denied Ellis’s
motion to substitute his trial counsel pursuant to People v.
Marsden (1970) 2 Cal.3d 118 (Marsden); (3) the trial court erred
in denying a self-representation request Ellis made in the midst
of jury selection; and (4) the People committed prosecutorial
misconduct during rebuttal argument by (a) vouching for the
credibility of a responding officer who testified at trial and
(b) claiming it was unnecessary to have a forensic specialist
examine the knife allegedly used in the instant offenses because
it likely did not have any fingerprints or DNA on it.
Ellis’s first claim of error fails because he does not show
that his trial counsel did in fact concede his guilt. Ellis also fails
to demonstrate the trial court abused its discretion in denying his
Marsden motion because he has not established defense counsel
pursued a strategy inconsistent with Ellis’s claim of innocence.
Further, we conclude that any error in denying Ellis’s untimely
self-representation motion is subject to the harmless error
standard generally applicable to violations of state law and that
Ellis fails to satisfy that standard. Lastly, Ellis forfeited his
claim of prosecutorial misconduct, he has not persuaded us to
exercise our discretion to excuse the forfeiture of this claim, and
2
he has not shown that his trial attorney’s failure to preserve this
appellate claim amounts to ineffective assistance of counsel.
Finding no reversible error, we affirm the judgment in its
entirety.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts that are pertinent to this
appeal.
On February 23, 2018, the People filed an information
charging Ellis with one count of criminal threats, in violation of
Penal Code1 section 422, subdivision (a) (count 1); and one count
of assault by means of force likely to produce great bodily injury,
in violation of section 245, subdivision (a)(4) (count 2). The
information included several enhancement allegations, including
the allegation that in connection with count 2, Ellis personally
inflicted great bodily injury upon the victim within the meaning
of section 12022.7, subdivision (a). Ellis thereafter pleaded not
guilty to both counts and denied the enhancement allegations.
At trial, the People offered evidence that at 3:00 a.m. on
January 25, 2018, C.B., a resident of an independent living
facility, was asleep on the floor of the living room of the main
building of the facility.2 Ellis, another resident of the facility,
entered the building, straddled C.B., pressed a knife to C.B.’s
neck, used his other hand to squeeze C.B.’s neck, and threatened
C.B. C.B. was eventually able to push Ellis off of him and run to
the facility manager’s bedroom. C.B. cut his thumb in the
1 Undesignated statutory citations are to the Penal Code.
2 The remainder of this paragraph and the following
paragraph summarize relevant aspects of the evidence offered by
the People.
3
process of extricating himself from Ellis. Ellis threw the knife in
a sink and exited the building.
C.B. later contacted the police, who arrived and arrested
Ellis. Upon arriving at the scene, a responding officer, Officer
Dennis Dilliner (Officer Dilliner), noticed that C.B. had marks on
his neck consistent with strangulation.
The People called, inter alia, C.B., Officer Dilliner, and the
facility manager to testify at trial. The defense did not present
any witnesses. At the conclusion of the trial, the jury found Ellis
guilty on counts 1 and 2, and, in connection with count 2, the jury
found that Ellis personally inflicted great bodily injury upon C.B.
for the purposes of section 12022.7, subdivision (a).
Several months after the jury rendered its verdict but
before he was sentenced, Ellis moved, pro per, for a new trial.
Ellis argued, among other things, that when he entered the main
building on the evening in question, he believed that C.B. was
attempting to commit suicide, and that C.B. “sustained a
laceration or cut finger” as Ellis sought to “disarm” C.B. When
the court heard Ellis’s new trial motion, Ellis reiterated his
theory that he believed C.B. was trying to commit suicide. Ellis
also claimed that he did not “attack” C.B., he and C.B. were
“struggling,” and he “wrestled the knife from” C.B. Ellis further
asserted that he “grabbed [C.B.’s] hand and made him drop the
knife or whatever he had in his hand . . . .” The court ultimately
denied the new trial motion.
On January 31, 2020, the trial court sentenced Ellis to an
aggregate term of seven years in state prison, which is comprised
of a four-year prison sentence on count 2, along with a three-year
enhancement on that count pursuant to section 12022.7,
4
subdivision (a). The trial court also imposed, but stayed
pursuant to section 654, a four-year prison sentence on count 1.
On December 21, 2020, we granted Ellis relief from default
for his failure to file a timely notice of appeal. Ellis filed a notice
of appeal the following day.
DISCUSSION
A. Ellis’s Trial Attorney Did Not Violate Ellis’s Sixth
Amendment Right to Effective Assistance of Counsel
by Conceding Ellis’s Guilt
In McCoy v. Louisiana (2018) 138 S.Ct. 1500 (McCoy), the
United States Supreme Court held that the Sixth Amendment to
the federal constitution guarantees that when a criminal
defendant “expressly asserts that the objective of ‘his defence’ is
to maintain innocence of the charged criminal acts, his lawyer
must abide by that objective and may not override it by conceding
guilt. [Citations.]” (See McCoy, supra, at p. 1509, quoting U.S.
Const., 6th Amend.) McCoy explained that, “[t]o gain assistance
[of counsel under the Sixth Amendment], a defendant need not
surrender control entirely to counsel.” (See id. at p. 1508.)
“Some decisions . . . are reserved for the client—notably, whether
to plead guilty, waive the right to a jury trial, testify in one’s own
behalf, and forgo an appeal.” (Ibid.) Conversely, “[t]rial
management is the lawyer’s province: Counsel provides his or
her assistance by making decisions such as ‘what arguments to
pursue, what evidentiary objections to raise, and what
agreements to conclude regarding the admission of evidence.’
[Citation.]” (Ibid.) The high court reasoned that deciding
whether to insist on maintaining the defendant’s innocence of a
crime fell in the category of decisions reserved for that defendant
5
because it is not merely a “strategic choice[ ] about how best to
achieve a client’s objectives” but is instead a “choice[ ] about what
the client’s objectives in fact are.” (See ibid.)
The McCoy court found that defense counsel violated his
client’s “[a]utonomy to decide . . . the objective of the defense” by
“admit[ting his] client’s guilt of a charged crime over the client’s
intransigent objection to that admission.” (See McCoy, supra,138 S.Ct. at pp. 1508, 1510, 1512.) There, the defendant was
charged with three counts of first degree murder and the
prosecutor gave notice of intent to seek the death penalty. (Id. at
pp. 1505–1506.) The defendant’s attorney concluded that the
evidence against his client was “overwhelming and that, absent a
concession at the guilt stage that [the accused] was the killer, a
death sentence would be impossible to avoid at the penalty
phase.” (Id. at p. 1506.) The defendant told his lawyer “ ‘not to
make that concession’ ” and demanded that his attorney “pursue
acquittal”; the defendant also later informed the trial court (out
of the presence of the jury) that he did not consent to his lawyer’s
strategy. (See id. at pp. 1506–1507.)
Nonetheless, defense counsel told the jury during his
opening statement that “there was ‘no way reasonably possible’
that they could hear the prosecution’s evidence and reach ‘any
other conclusion than [his client] was the cause of these
individuals’ death[,]’ ” and that “the evidence is ‘unambiguous,’
‘[his] client committed three murders.’ [Citation.]” (See McCoy,
supra, 138 S.Ct. at pp. 1506–1507.) “In his closing argument,
[the attorney] reiterated that [his client] was the killer,” and
stated that the attorney “ ‘took [the] burden off [the prosecutor]’ ”
on that issue. (See id. at p. 1507.) The jury returned a
unanimous verdict of guilty of first degree murder on all three
6
counts, and later returned three death verdicts. (Ibid.) The
Supreme Court held that counsel’s concession of guilt violated the
defendant’s “Sixth Amendment-secured autonomy” right,
reversed the conviction without conducting a harmless error
analysis because this constitutional violation was a “ ‘structural’ ”
error, and remanded the matter for the defendant to obtain a new
trial. (See id. at pp. 1510–1512.)
Ellis contends that the McCoy decision requires that his
convictions be reversed because, over Ellis’s objection, his counsel
“conceded to the jury that Ellis did attack” C.B., which
constituted an admission that Ellis committed the lesser included
offense of simple assault. In particular, Ellis points out that his
counsel “told the jury during opening, ‘there’s no doubt that these
two struggled’; ‘[t]he question is whether or not Mr. Ellis is the
one who assaulted [C.B.] or whether [C.B.] . . . attacked or
confronted Mr. Ellis.’ ” Ellis asserts his attorney “surmised
[during the opening statement] that the ‘struggle[]’ ‘may have
been over a disagreement earlier on that day’ or ‘[i]t may have
been because they didn’t like each other[,]’ ” and that “ ‘the
question’ was who ‘initiated’ the ‘attack.’ ” Ellis claims his
counsel later “foreclosed any argument that the ‘attack’ was
initiated by [C.B.]” by failing to request a self-defense instruction
or refer to the elements of self-defense in his closing argument.
Ellis further maintains that his trial counsel reiterated
this concession of Ellis’s guilt when, during closing argument, the
attorney argued “that ‘it probably did not go down the way [C.B.]
said.’ ” Ellis also observes his attorney argued: “ ‘There is no
doubt that these two had an altercation. . . . The question is did
it go down the way [C.B.] said?’ ” and “ ‘I’m not saying that
7
nothing happened between these two men. I’m saying it didn’t go
down the way [C.B.] said it did.’ ”
The transcript excerpts quoted in Ellis’s briefing indicate
only that his trial counsel argued vaguely that there was a
“ ‘struggle’ ” and an “ ‘altercation’ ” between Ellis and C.B., and
that one of them had “ ‘attacked or confronted’ ” the other and
had “ ‘initiated’ ” the attack or confrontation. In fact, the
attorney’s assertion there was a “ ‘struggle’ ” and an
“ ‘altercation’ ” between Ellis and C.B. is compatible with Ellis’s
theory that he “wrestled the knife” from C.B. in order to “disarm”
C.B. and prevent him from committing suicide, and that the two
men were “struggling” with each other during their encounter.
During the proceedings below, Ellis emphatically contended that
his factual theory established that he “didn’t do it,” yet he now
argues that statements made by trial counsel that are consistent
with that theory somehow amounted to a concession of guilt.
In any event, Ellis has not shown that the aforesaid
arguments of counsel constitute an admission that Ellis
perpetrated any of the essential elements of a simple assault.
The jury instruction for misdemeanor assault—the accuracy of
which Ellis does not contest—lists the following elements of the
offense: “1. A person willfully committed an act which by its
nature would probably and directly result in the application of
physical force on another person; [¶] 2. The person committing
the act was aware of facts that would lead a reasonable person to
realize that as a direct, natural and probable result of this act
that physical force would be applied to another person; and [¶]
3. At the time the act was committed, the person committing the
8
act had the present ability to apply physical force to the person of
another.”3
It is not apparent that Ellis’s mere “struggl[ing]” with C.B.
in some undisclosed fashion or Ellis’s being on the receiving end
of an altercation, attack, or confrontation—all of which were
possibilities under his attorney’s theory of the case—would
constitute Ellis’s willful commission of an act which by its nature
would probably and directly result in the application of physical
force on C.B. Nor is it apparent that trial counsel’s statements
established Ellis’s awareness of facts that would lead a
reasonable person to realize the application of force would be the
direct, natural, and probable result of any act undertaken by
Ellis, or that he had the ability to apply physical force to C.B.’s
person.
Furthermore, nothing in the misdemeanor assault
instruction indicates that, in the absence of a self-defense
instruction, trial counsel’s vague factual theory leads to the
conclusion that Ellis was the assailant. Regardless, we reject
that assertion because Ellis does not support it with any citation
to authority. (See People v. Stanley (1995) 10 Cal.4th 764, 793
[“ ‘[E]very brief should contain a legal argument with citation of
authorities on the points made. If none is furnished on a
3 Courts have referred to “simple assault” and
“misdemeanor assault” interchangeably. (See, e.g., People v. Leal
(2009) 180 Cal.App.4th 782, 791–792 [concluding the trial court
did not err in declining to instruct the jury on “simple assault”
even though the defendant agreed to waive the statute of
limitations on “misdemeanor assault”]; In re Brandon T. (2011)
191 Cal.App.4th 1491, 1494 [referring to “simple assault” as “a
misdemeanor offense”].)
9
particular point, the court may treat it as waived, and pass it
without consideration. [Citations.]’ [Citations.]”].)
Moreover, Ellis’s trial counsel’s statements stand in stark
contrast to those in McCoy. As noted above, the attorney in
McCoy told the jury in no uncertain terms that his client
“ ‘committed three murders’ ” and “there was ‘no way reasonably
possible’ that they could hear the prosecution’s evidence and
reach ‘any other conclusion than [his client] was the cause of
these individuals’ death.’ [Citation.]” (See McCoy, supra,138 S.Ct. at pp. 1506–1507.) Conversely, as noted above, trial
counsel’s statements to the jury in no way relieved the People of
their burden to prove beyond a reasonable doubt that Ellis
perpetrated the assault. And, although Ellis may not agree with
his attorney’s theory of the case, that theory was nonetheless a
matter of “[t]rial management” that was “the lawyer’s
province . . . .”4 (See McCoy, supra, at p. 1508; see also id. at
pp. 1508, 1510 [noting that “decisions such as ‘what arguments to
pursue’ ” are in the lawyer’s province, and indicating that mere
“strategic disputes” between the client and the attorney do not
constitute “intractable disagreements about the fundamental
objective of the defendant’s representation”].) Thus, Ellis has
failed to demonstrate that trial counsel violated his Sixth
Amendment right to decide the objective of his defense.
4 Aside from his assertion that trial counsel conceded his
guilt, Ellis does not contend that the attorney rendered
constitutionally ineffective assistance by making the statements
discussed in this part (i.e., that these statements otherwise
amount to constitutionally deficient performance that prejudiced
him).
10
B. Ellis Fails to Establish the Trial Court Erred in
Denying His Marsden Motion
“In California, the ‘seminal case regarding the appointment
of substitute counsel is Marsden, supra, 2 Cal.3d 118, which gave
birth to the term of art, a “Marsden motion.” ’ [Citation.]”
(People v. Sanchez (2011) 53 Cal.4th 80, 86.) Under Marsden and
its progeny, “ ‘substitute counsel should be appointed when . . .
the defendant has shown that a failure to replace the appointed
attorney would substantially impair the right to assistance of
counsel [citation], or, stated slightly differently, if the record
shows that the first appointed attorney is not providing adequate
representation or that the defendant and the attorney have
become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result [citation.]’
[Citation.]” (See Sanchez, at p. 89.) “We review the trial court’s
denial of defendant’s Marsden motion under the abuse of
discretion standard.” (People v. Orey (2021) 63 Cal.App.5th 529,
568.)
Ellis contends the trial court abused its discretion in
denying a Marsden motion Ellis made during jury selection. Ellis
argues that “the failure to replace [his counsel] at [Ellis’s]
request” would—and ultimately did—substantially impair his
right to assistance of counsel because it was “clear” that Ellis’s
attorney intended to “manage the trial in a manner at odds with
his client’s stated objective of maintaining innocence . . . .” He
claims to have given the trial court “examples of how” his
attorney “was constructing a defense at odds with his assertion of
innocence”—i.e., trial counsel did not plan on introducing into
evidence a call Ellis made to police after the incident or certain
“police body-camera footage that Ellis believed would undercut
11
[C.B.’s] claims.” Ellis asserts that the trial court’s denial of his
motion resulted in “the violation of Ellis’s right” under McCoy to
have “an attorney who w[ould] make his tactical decisions in
service of . . . the objective of maintaining innocence.”5
As we explained in Discussion, part A, ante, Ellis fails to
show that after his Marsden motion was denied, his counsel
actually did pursue a strategy incompatible with his claim of
innocence. Further, Ellis admits that his trial counsel “was free,
as Ellis’s representative, to make tactical trial decisions[,] . . .
including with respect to whether or how to introduce the 911 call
into evidence.” (See also McCoy, supra, 138 S.Ct. at p. 1508
[“Trial management is the lawyer’s province . . . .”].)
Additionally, although trial counsel’s failure to introduce the call
and the body camera footage could theoretically form the basis of
a claim of ineffective assistance, that omission does not itself
demonstrate that trial counsel did not share Ellis’s objective of
maintaining his innocence.6 Consequently, Ellis has not shown
5 Although Ellis notes in passing that prior to the instant
Marsden motion, he made several Marsden motions and a motion
to represent himself, he does not challenge the trial court’s
rulings on these previous motions or claim they have any bearing
on whether the court abused its discretion in denying the
Marsden motion at issue. Hence, we need not address this
issue further. (See People v. Bragg (2008) 161 Cal.App.4th 1385,
1396–1397 [“ ‘To the extent defendant perfunctorily asserts other
claims, without development and, indeed, without a clear
indication that they are intended to be discrete contentions, they
are not properly made, and are rejected on that basis.’
[Citation.]”].)
6 Ellis suggests his trial counsel erroneously believed that
these two items of evidence were inadmissible. Yet, Ellis does
not contend that trial counsel’s failure to introduce this evidence
12
that the trial court abused its discretion in denying his Marsden
motion.
C. Any Error in Denying Ellis’s Motion to Represent
Himself Was Harmless
Faretta v. California (1975) 422 U.S. 806 (Faretta),
announced that a criminal defendant has the federal
“constitutional right to proceed without counsel when he
voluntarily and intelligently elects to do so.” (See id. at pp. 807,
835–836.) Shortly after Faretta was decided, our high court
stated that “the requirement of a pretrial motion . . . is a
workable and appropriate predicate to the exercise of the Faretta
right.” (See People v. Windham (1977) 19 Cal.3d 121, 127
(Windham).) Specifically, Windham held that “in order to invoke
the constitutionally mandated unconditional right of self-
representation a defendant in a criminal trial should make an
unequivocal assertion of that right within a reasonable time prior
to the commencement of trial. Accordingly, when a motion to
proceed pro se is timely interposed, a trial court must permit a
defendant to represent himself upon ascertaining that he has
voluntarily and intelligently elected to do so, irrespective of how
unwise such a choice might appear to be.” (Id. at pp. 127–128,
fn. omitted.)
amounted to constitutionally inadequate performance such that
the trial court should have granted his Marsden motion. Rather,
Ellis’s briefing indicates that his discussion of the call and the
footage is merely intended to show that “his attorney was
pursuing a strategy inimical to his ‘defense’ ‘that [he] may be
innocent.’ ”
13
Conversely, “once a defendant has chosen to proceed to trial
represented by counsel, demands by such defendant that he be
permitted to discharge his attorney and assume the defense
himself shall be addressed to the sound discretion of the court.”
(Windham, supra, 19 Cal.3d at p. 128.) “Among other factors to
be considered by the court in assessing such requests made after
the commencement of trial are the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity
to substitute counsel, the reasons for the request, the length and
stage of the proceedings, and the disruption or delay which might
reasonably be expected to follow the granting of such a motion.”
(Ibid.)
Windham explained “[t]he rationale underlying the
Supreme Court’s decision in Faretta . . . . is that the state may
not constitutionally prevent a defendant charged with
commission of a criminal offense from controlling his own fate by
forcing on him counsel who may present a case which is not
consistent with the actual wishes of the defendant.” (See
Windham, supra, 19 Cal.3d at p. 130.) Our Supreme Court also
stated it did “not think that . . . the procedural rule [it had] set
forth . . . conflict[s] with that rationale in any way.” (See ibid.)
The high court thus characterized requests subject to the abuse of
discretion standard announced in Windham as
“nonconstitutionally based motions for self-representation.” (See
id. at pp. 128–129 & fn. 6.) Our Supreme Court continued to
adhere to this reading of Faretta in subsequent decisions. (See
People v. Bloom (1989) 48 Cal.3d 1194, 1220 [“A request for self-
representation asserted for the first time after trial has
commenced . . . is ‘based on nonconstitutional grounds’ [citation]
and is addressed to the sound discretion of the trial court
14
[citation]. . . . [¶] . . . [¶] . . . [D]efendant’s midtrial motion for self-
representation did not have a constitutional basis,” quoting
Windham, at p. 129, fn. 6]; People v. Hamilton (1988)
45 Cal.3d 351, 369 [concluding that “[b]ecause defendant’s
request was filed in the midst of the jury’s guilt phase
deliberations, it was not timely for purposes of invoking an
absolute right of self-representation under Faretta”].)
Ellis complains that the trial court abused its discretion by
denying his request to represent himself “on the ground that
there was no one available with knowledge of the case to serve as
standby counsel.” Ellis concedes he made this request after jury
selection began, and he does not dispute the Attorney General’s
assertion that Ellis did not timely invoke his Faretta right to self-
representation. (See also Reygoza v. Superior Court (1991)
230 Cal.App.3d 514, 519 & fn. 4 (Reygoza) [criminal case in which
the Court of Appeal assumed that an assertion made by
respondent was correct because “defendant did not dispute
respondent’s claim in his reply”]; Rudick v. State Bd. of
Optometry (2019) 41 Cal.App.5th 77, 89–90 (Rudick) [concluding
that the appellants made an implicit concession by “failing to
respond in their reply brief to the [respondent’s] argument on
th[at] point”].) Ellis further claims that the alleged erroneous
denial of his self-representation request is reversible per se and
that, in any event, he has shown that the court’s error was not
harmless. As discussed below, the harmless error standard
articulated in People v. Watson (1956) 46 Cal.2d 818, applies and
Ellis fails to satisfy that standard. We thus reject this claim of
error without determining whether the trial court abused its
discretion in denying Ellis’s self-representation request.
15
Although Ellis acknowledges that “[t]he lower California
courts appear generally to have concluded that ‘untimely’ motions
for self-representation are subject to harmless error review,” he
claims “[t]he premise [ ]that untimely self-representation
requests are non-constitutional[ ] does not follow from the
relevant U.S. Supreme Court caselaw . . . .” Ellis has not directed
us to any United States Supreme Court decision that disagrees
with Windham’s holding that an untimely Faretta motion “is
based on nonconstitutional grounds” (see Windham, supra,
19 Cal.3d at p. 129, fn. 6), nor is it apparent the Supreme Court
has issued any such decision. Windham’s holding on this point is
thus binding on us. (See Tanguilig v. Bloomingdale’s, Inc. (2016)
5 Cal.App.5th 665, 673 [“[I]n the absence of a subsequent
contrary decision of the United States Supreme Court, we are
bound by the California Supreme Court’s holding on [an] issue of
federal law . . . .”].) Because Ellis does not argue that any other
provision of federal law governs his claim of error, whether this
claim is subject to harmless error review is a matter of state law.7
7 Ellis cites certain United States Supreme Court decisions
for the proposition that “a harmless error rule” does not “make
sense” in this context. (Citing McCoy, supra, 138 S.Ct. at p. 1511;
United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 148–151;
McKaskle v. Wiggins (1984) 465 U.S. 168, 177–178, fn. 8
(McKaskle).) Ellis does not explain why we would be bound by
decisions describing structural error based on constitutional
grounds if we were to conclude, as we already have, that his
appellate claim merely asserts error on a nonconstitutional
ground. We thus need not address this argument further. (See
Hodjat v. State Farm Mutual Automobile Ins. Co. (2012)
211 Cal.App.4th 1, 10 (Hodjat) [“[A]n appellant is required to not
only cite to valid legal authority, but also explain how it applies
in his case.”]; People v. Sanghera (2006) 139 Cal.App.4th 1567,
16
“Typically, when an ‘error is purely one of state law, the
Watson harmless error test applies.’ [Citations.]” (People v.
Lewis (2021) 11 Cal.5th 952, 973.) Ellis argues automatic
reversal is nonetheless appropriate under People v. Blackburn
(2015) 61 Cal.4th 1113 (Blackburn), because the trial court’s
ruling abridged a right that is “fundamental to ‘orderly legal
procedure’ rather than simply a protection against erroneous
conviction, or [a right whose denial] ‘defies ordinary harmless-
error analysis.’ ” (Quoting Blackburn, at pp. 1133–1134.) Ellis
further contends that the denial of his untimely motion
“ ‘involve[s] [a] fundamental “structural defect[ ]” ’ ‘ “analogous to
those to which the United States Supreme Court referred in its
Arizona v. Fulminante . . . decision[,]’ ” presumably because “ ‘the
right to self-representation at trial’ ” is mentioned in that
decision. (Quoting People v. Lightsey (2012) 54 Cal.4th 668, 699
(Lightsey) & Arizona v. Fulminante (1991) 499 U.S. 279, 310
(Fulminante).)
Ellis fails to establish that Watson’s generally applicable
standard does not govern his claim of error. Notwithstanding
Ellis’s apparent contention to the contrary, Blackburn did not
hold that an error warrants automatic reversal simply because
assessing the harm resulting therefrom “ ‘would pose
insurmountable difficulties’ ” and thus defy harmless error
analysis. (Quoting Blackburn, supra, 61 Cal.4th at pp. 1133–
1134.) Rather, Blackburn held that the deprivation of “a basic
protection ‘whose precise effects are unmeasurable’ and whose
denial ‘def[ies] analysis by “harmless-error” standards’ ” “can
1573 [“Perhaps the most fundamental rule of appellate law is
that the judgment challenged on appeal is presumed correct, and
it is the appellant’s burden to affirmatively demonstrate error.”].)
17
entail a ‘miscarriage of justice’ ” calling for automatic reversal.
(See Blackburn, at pp. 1132, 1135, italics added.) There, our
Supreme Court found that a trial court’s failure to secure a
mentally disordered offender’s waiver of his right to a jury trial
on whether to extend the offender’s involuntary commitment was
the denial of just such a basic protection. (See id. at pp. 1116–
1117, 1132–1136.) Ellis does not explain why the rejection of his
untimely request to represent himself is akin to the error at issue
in Blackburn, nor does Blackburn seem to be apposite. (See
Hodjat, supra, 211 Cal.App.4th at p. 10 [“[A]n appellant is
required to not only cite to valid legal authority, but also explain
how it applies in his case.”].)
Additionally, “the right to self-representation at trial”
referenced in Fulminante was the right established by the
Faretta decision. (See Fulminante, supra, 499 U.S. at p. 310,
citing McKaskle, supra, 465 U.S. at pp. 177–178, fn. 8; McKaskle,
at pp. 177–178, fn. 8, citing Faretta, 422 U.S. at p. 834, fn. 46.)
Windham in turn held that conditioning a defendant’s exercise of
his constitutional right of self-representation on the timely
exercise thereof does not “conflict with th[e] rationale” of
Faretta—i.e., “that the state may not constitutionally prevent a
defendant charged with commission of a criminal offense from
controlling his own fate by forcing on him counsel who may
present a case which is not consistent with the actual wishes of
the defendant.” (See Windham, supra, 19 Cal.3d at p. 130.)
Because Windham indicates that Faretta’s rationale does not
extend to untimely self-representation motions, it is not apparent
that the denial of such a motion is sufficiently “analogous” to the
infringement of a Faretta right to constitute a structural defect
under state law. (See Lightsey, supra, 54 Cal.4th at p. 699.) Ellis
18
makes no attempt to reconcile Windham’s reasoning with his
argument that automatic reversal is required, nor does he claim
that the denial of his untimely self-representation motion
prevented the trial from “ ‘ “reliably serv[ing] its function as a
vehicle for determination of guilt or innocence” ’ ” or barred his
“ ‘ “criminal punishment [from] be[ing] regarded as
fundamentally fair.” ’ [Citation.]” (See Lightsey, at pp. 700–701
[describing errors that constitute structural defects].)
Because Ellis fails to show that the trial court’s supposed
erroneous denial of his motion entitles him to automatic reversal
of the judgment, Watson’s harmless error standard governs this
claim of error.8 The Watson “standard requires [a court] to
evaluate whether the defendant has demonstrated that it is
‘ “reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.” ’ [Citations.]” (See People v. Gonzalez (2018)
5 Cal.5th 186, 195; see also id. at p. 201 [“Because we are
addressing state law error, defendants must show that a different
result was reasonably probable under the Watson standard.”].)
“Appellate review under Watson . . . . focuses not on what a
8 (See People v. Rogers (1995) 37 Cal.App.4th 1053, 1058
[“The erroneous denial of an untimely Faretta motion is reviewed
under the harmless error test of People v. Watson (1956)
46 Cal.2d 818, 836 [299 P.2d 243].”]; People v. Rivers (1993)
20 Cal.App.4th 1040, 1050 [“[W]e conclude that although the
court erred in its handling of [the defendant’s] request under
[Windham], this error is not automatically reversible, but is
reviewed under the ‘harmless error’ test of Watson.”]; see also
People v. Lujano (2014) 229 Cal.App.4th 175, 190 [“ ‘ “[W]e
ordinarily follow the decisions of other districts without good
reason to disagree.” ’ [Citation.]”].)
19
reasonable jury could do, but what such a jury is likely to have
done in the absence of the error under consideration.” (People v.
Breverman (1998) 19 Cal.4th 142, 177.)
Ellis does not satisfy this standard. He argues that
because his “request was erroneously denied, [his trial counsel]
was permitted to—and did—then conduct the entire defense on
the improper premise that Ellis was not, in fact, innocent of
attacking [C.B.]” For the reasons provided in Discussion, parts A
and B, ante, Ellis does not establish that his trial counsel
conducted the defense based on this allegedly improper premise.
In addition, although Ellis suggests the People’s case was weak
because of “the lack of . . . forensic evidence, the case’s
dependence on a small number of biased witnesses, and . . .
several important inconsistencies in the State’s proof” (e.g., the
facility manager disavowed a statement he supposedly made to a
defense investigator that he disliked Ellis and thought he was a
bad guy), Ellis does not claim the People’s evidence would have
been any different had he been allowed to represent himself.
Thus, Ellis has not shown it is reasonably probable that a result
more favorable to him would have been reached if the trial court
had granted his self-representation request.
20
D. Ellis Forfeited His Prosecutorial Misconduct Claim,
and He Does Not Establish That Trial Counsel’s
Failure to Preserve This Claim Amounts to
Ineffective Assistance of Counsel
Ellis contends the prosecutor committed misconduct by
making the following statements during rebuttal argument:
(1) “telling the jury that [the responding officer, Officer] Dilliner
was ‘an honest officer’ who was ‘not going to get up here and
jeopardize his career to come and make stuff up for you guys’ ”;
and (2) “[t]he prosecutor also attempted to explain the officer’s
failure to submit the knife for confirmatory laboratory testing by
stating that, in the circumstances,” (i.e., “a knife found in the
sink with no obvious blood traces on it”), “ ‘there’s probably no
prints on it, [or] DNA on it,’ and ‘there’s probably no evidentiary
value.’ ” Ellis argues that the statements identified in
item (1) constitute “improperly vouch[ing] for Dilliner’s credibility
by referring to facts not in evidence and by invoking [the
prosecutor’s] personal prestige in support” of the officer, and that
the statements provided in item (2) refer to facts not in evidence.
Ellis concedes that trial counsel did not object to these
statements, and he does not dispute the Attorney General’s claim
that his attorney did not ask the trial court to admonish the jury
to disregard these statements.9 Accordingly, unless Ellis
9 (See also Reygoza, supra, 230 Cal.App.3d at p. 519 & fn. 4
[criminal case in which the Court of Appeal assumed that an
assertion made by respondent was correct because “defendant did
not dispute respondent’s claim in his reply”]; Rudick, supra,
41 Cal.App.5th at pp. 89–90 [concluding that the appellants made
an implicit concession by “failing to respond in their reply brief to
the [respondent’s] argument on th[at] point”].)
21
establishes that an exception to the forfeiture rule applies, his
counsel’s failure to preserve this claim of prosecutorial
misconduct is fatal. (See People v. Williams (2017) 7
Cal.App.5th 644, 686 (Williams) [“ ‘As a general rule, “ ‘[a]
defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground,
the defendant objected to the action and also requested that the
jury be admonished to disregard the perceived impropriety.’ ” ’
[Citation.]”].)
Ellis seeks to invoke our discretion to excuse the forfeiture
of his prosecutorial misconduct claim, arguing that review is
necessary to “reinforce” the principle that prosecutors have a
“ ‘duty to see that the defendant has a fair and impartial trial,
and that he be not convicted except by competent and legitimate
evidence.’ [Citation.]” Because nearly every unpreserved claim
of prosecutorial misconduct implicates this duty, Ellis has not
identified a persuasive reason for us to exercise our discretion to
review his claim of error.10 (See People v. Connors (2016)
3 Cal.App.5th 729, 737 [“ ‘ “[D]iscretion to excuse forfeiture
should be exercised rarely and only in cases presenting an
important legal issue. [Citations.]” [Citation.]’ [Citation.]”].)
Notwithstanding Ellis’s forfeiture of his prosecutorial
misconduct claim, we may still grant relief if trial counsel’s
failure to preserve that claim constituted ineffective assistance.
10 Ellis does not argue that we should excuse his trial
counsel’s failure to preserve his claim of prosecutorial misconduct
on the ground that “an objection would have been futile, or [that]
an admonition would not have cured the harm caused by the
prosecutor’s statement[s].” (See Williams, supra, 7 Cal.App.5th
at p. 686.)
22
(See People v. Espiritu (2011) 199 Cal.App.4th 718, 725–726.)
“ ‘An ineffective assistance claim has two components: A
[defendant] must show that counsel’s performance was deficient,
and that the deficiency prejudiced the defense.’ [Citations.]”
(In re Gay (2020) 8 Cal.5th 1059, 1073.) “To obtain relief, [the
defendant] must demonstrate ‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’
[Citations.]” (Id. at p. 1086.)
Because Ellis has not demonstrated that he suffered
prejudice from trial counsel’s failure to preserve Ellis’s claim of
prosecutorial misconduct, we reject his ineffective assistance
claim without determining whether counsel’s performance was
deficient.11 (See People v. Mesa (2006) 144 Cal.App.4th 1000,
1008 [“In considering a claim of ineffective assistance of counsel,
it is not necessary to determine ‘ “whether counsel’s performance
was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies . . . . If it is easier
to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course
should be followed.” ’ [Citation.]”].) Ellis seems to argue that his
11 Ellis suggests that we should consider the effect of the
prosecutor’s statements “in cumulation with the other errors
cited [in his briefing], which permitted the defendant’s own
attorney to concede his guilt and construct his defense on that
basis.” Irrespective of whether Ellis’s other appellate claims may
be considered when assessing the instant claim, Ellis’s ineffective
assistance claim would still fail because he has not shown his
attorney conceded guilt and constructed Ellis’s defense on that
basis. (See Discussion, parts A–B, ante.)
23
trial counsel’s failure to preserve his claim of prosecutorial
misconduct undermines confidence in the judgment because there
is a reasonable probability that, had counsel objected to, and
sought an admonition regarding, the aforesaid statements, one or
more of the jurors would have believed Officer Dilliner was lying
when he “opin[ed] that [C.B.’s] neck marks were ‘consistent with’
strangulation.” Specifically, Ellis claims Officer Dilliner was
“[t]he only potentially unbiased witness for the State,” but that
the prosecutor improperly vouched for Officer Dilliner’s
credibility, and that the officer’s failure to “submit the knife for
any kind of confirmatory forensic analysis” suggests he “rushed to
judgment” and undermines “his objectivity.” Ellis also
apparently argues that in the absence of an objection and a
curative admonition, the prosecutor’s statements about the knife
persuaded the jury to believe it was the weapon used to cut C.B.
even though it had no visible traces of being tied to the assault
(e.g., no blood was found on it).
Without any other evidence of bias on the part of Officer
Dilliner (e.g., that he somehow knew Ellis from a prior
encounter), it strains credulity to believe that, if trial counsel had
objected to, and sought an admonition concerning, the
prosecutor’s claims that the officer would be punished if he lied
and that the knife probably had no forensic evidence thereon, any
of the jurors would have believed that Dilliner fabricated his
testimony that C.B.’s neck marks were consistent with
strangulation. Additionally, Ellis does not cogently argue what
effect the prosecutor’s statements regarding the knife had on
whether the jury believed Ellis used it for the assault. This is
because Ellis does not explain why there is any reasonable
probability that, had trial counsel challenged the statements at
24
issue, one or more jurors would have suspected (a) there was
exculpatory evidence on the knife that Officer Dilliner somehow
suppressed or failed to uncover, or (b) the knife was not the one
that cut C.B.’s thumb.12 In short, Ellis has not established a
reasonable probability that trial counsel’s failure to object to, and
request a curative instruction regarding, the prosecutor’s
comments had any impact on the weight the jury accorded to
Officer Dilliner’s testimony or the inferences the jury drew from
the fact the officer did not submit the knife for forensic testing.
Ellis does not dispute the Attorney General’s observations
that the complained of statements were “brief” and that the
prosecutor did not repeat them.13 Furthermore, the trial court
instructed the jury that “[s]tatements made by the attorneys
during the trial are not evidence,” the jurors “are the sole judges
of the believability of a witness and the weight to be given the
testimony of each witness,” and the jury “must decide all
questions of fact in this case from the evidence received in this
trial and not from any other source.” These jury instructions
and the brevity of the prosecutor’s statements mitigate any
theoretical prejudice Ellis may have suffered from those
statements. (Cf. People v. Blacksher (2011) 52 Cal.4th 769, 838–
839 [indicating that instructing the jury to rely only “on evidence
presented in court and not treat counsel’s comments as evidence”
mitigated the impact of a prosecutor’s suggestion that he had
evidence in his possession supporting his case but did not present
12 Indeed, in light of Ellis’s factual theory that C.B.
“sustained a laceration or cut finger” when Ellis “wrestled [a]
knife from him,” neither (a) nor (b) seems likely.
13 (See also Reygoza, supra, 230 Cal.App.3d at p. 519 &
fn. 4; Rudick, supra, 41 Cal.App.5th at pp. 89–90.)
25
it]; People v. Medina (1995) 11 Cal.4th 694, 759–760 [concluding
that even if a prosecutor had improperly appealed to “the jury’s
passions and prejudices,” that misconduct was harmless because
the prosecutor’s comments were “brief and isolated”].)
In sum, Ellis has forfeited his prosecutorial misconduct
claim, and he does not establish that we should exercise our
discretion to excuse his forfeiture or that his trial counsel’s
failure to object to, and ask for an admonition regarding, the
prosecutor’s statements constituted ineffective assistance of
counsel. Therefore, he is not entitled to appellate relief on this
claim of error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
26