People v. Griffin CA4/1 ( 2020 )

Filed 11/5/20 P. v. Griffin CA4/1
(unmodified opinion attached)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074956
Plaintiff and Respondent, (Super. Ct. No. SCD267344)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
AARON LEN GRIFFIN,
NO CHANGE IN THE
Defendant and Appellant. JUDGMENT
THE COURT:
It is ordered that the opinion filed on October 21, 2020, be modified as
follows:
On page 4, the fourth full paragraph, replace the first sentence with:
“A crime scene specialist collected a gun and six Winchester .45 caliber
cartridge cases from the left-hand turn lanes of Euclid.”
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
McCONNELL, P. J.
Copies to: All parties
Filed 10/21/20 P. v. Griffin CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074956
Plaintiff and Respondent,
v. (Super. Ct. No. SCD267344)
AARON LEN GRIFFIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Louis R. Hanoian, Judge. Affirmed.
Gregory L. Rickard, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and
Respondent.
A shootout between two drivers at the intersection of Euclid and
Market on May 17, 2016, left driver Jamar J. dead. Police traced the other
vehicle to defendant Aaron Griffin and charged him with first degree murder
(Pen. Code,1 § 187, subd. (a)), assault with a semi-automatic firearm (§ 245,
subd. (b)), and shooting at an occupied vehicle (§ 246). Police also charged
Griffin with shooting at an inhabited dwelling (§ 246), for an incident that
occurred 10 days earlier when someone in a white SUV fired several shots
into a family residence on Balmoral Drive, damaging the home of Jamar’s
next door neighbor. At trial, Griffin argued that there was no evidence
linking him personally to the residential shooting and that he fired his
weapon at the intersection of Euclid and Market that May day in self-
defense. The jury convicted Griffin on all charges, and he was sentenced to
seven years eight months, plus 50 years to life. The court also imposed a
$10,000 restitution fine and various fees and assessments.
Griffin appeals the judgment contending he suffered prejudice (1) due
to prosecutorial misconduct that occurred during closing arguments,
(2) because the court used standard jury instruction CALCRIM No. 224, and
(3) because he was issued several fines, fees, and assessments without an
ability-to-pay hearing. Griffin did not object to any of these alleged errors at
the time of trial or sentencing. We conclude he has forfeited the prosecutorial
misconduct and jury instruction challenges, as well as the challenge to the
imposition of fines, fees, and assessments without an ability-to-pay hearing.
Accordingly, we will affirm.
BACKGROUND AND PROCEDURAL FACTS
A. Shooting on Balmoral Drive
Around 3:00 a.m. on the morning of May 17, 2016, gunshots woke
residents of a house on Balmoral Drive. Multiple bullets hit the house, with
two bullets firing through a window and a wall. There were also bullet holes
1 Further unspecified section references are to the Penal Code.
2
found in the resident’s car. Police recovered six .45 caliber Winchester
casings at the scene.
A neighbor saw a stocky male, about five foot nine or ten inches tall,
walking east on the sidewalk with a gun in his left hand, firing three shots
toward the house. Another neighbor saw a white “boxy-type” SUV speeding
away from the home.
The occupants had no idea why someone would shoot at their home or
family. However, the next door neighbor had a five-month-old child with
Jamar, who was living with her, and Jamar was a known West Coast Crips
gang member.
B. Shooting at Intersection of Euclid and Market
Ten days later, Jamar was shot and killed at the intersection of Euclid
and Market. On May 27, 2016 around 1:00 p.m., Jamar was stopped in the
first left-turn lane facing south on Euclid at the intersection of Euclid and
Market, where there are four southbound lanes. He was driving a white
Pontiac, with his infant child in a car seat in the back. Griffin was at the
same intersection, in the second left-turn lane, driving a white Jeep;2 he was
accompanied by a Black female passenger in the front seat.
Witnesses heard gunshots. Several saw smoke and bullet casings come
from the white Jeep. One saw glass falling down into the street. No one saw
who pulled out a weapon first or who fired the first shots. When the shooting
stopped, the Jeep turned to the right, past the Pontiac, and drove onto
Market. A witness testified there were two Black occupants who were
ducked down in the vehicle.
2 Kimberly L. testified the Pontiac was in the number two lane, and the
Jeep was in the first lane, to the left of the Pontiac. However, the other
witnesses testified the Pontiac was in the first lane, and the Jeep was to the
right of the Pontiac.
3
The Jeep pulled into a small shopping center at 47th and Market. A
Black woman exited the front passenger side of the vehicle and ran toward
47th Street while the vehicle drove off.
The Pontiac rolled slowly into the intersection and came to a stop at the
curb. Kimberly L. and Tia S., who were in the first vehicle in the lane
farthest to the right, ran to the Pontiac, where they found a bleeding man
slumped between the two front seats; his arm was reaching toward the
backseat, where the baby was. Kimberly saw a gun on Jamar’s lap. Tia put
the Pontiac into park, unbuckled the child seat, and removed the child. She
noticed gunshot damage on the passenger side of the Pontiac. Another
witness, Ismail D. also noticed a lot of bullet holes in the car near the car
seat.
C. Initial Police Investigation
When San Diego Police Sergeant Anthony Breise arrived, he found
Jamar in the vehicle, bleeding, with his right hand outstretched and a gun
that appeared to be a Glock next to it. He checked for a pulse but could not
find one. There were seven “defects” from bullets in the Pontiac.
A crime scene specialist collected a gun and six Winchester .45 caliber
cartridge cases from the Pontiac. She also recovered numerous nine-
millimeter bullets and casings from the Pontiac.
D. The White Jeep
Police found a white Jeep parked in front of a residence about a mile
from the intersection. Nearby residences housed Neighborhood Crip gang
members or close associates. The Jeep had bullet holes in the windshield and
the driver’s side door, and the left rear tire was deflated. Police traced the
4
vehicle to a rental car company and learned the vehicle had been rented by
Griffin on May 5, 2016.
When police searched the Jeep, they discovered clothing and personal
property in laundry baskets and miscellaneous bags in the back. Police
recovered a black ski mask from the front seat area.
E. Bullet Analysis
Nine-millimeter casings and a Glock were found in the Pontiac. A
criminologist testified that the Glock fired all the casings recovered at the
intersection.
Sergeant Christopher Leahy, a homicide detective assigned to
investigate, testified that all the .45 caliber Winchester casings he recovered
from the shootout at the intersection were fired by the same gun. A database
search for the .45 caliber casings found that the same gun was used in three
other crimes, two in 2015 and one in 2016, though no other information
connected Griffin to those incidents. One of the victims of a previous shooting
was a Neighborhood Crip member.
A ballistics expert examined the six .45 caliber casings from the
Balmoral Drive shooting and discovered the same gun fired all six cartridges.
The database showed that the cartridges matched those from the gun used in
the May 27, 2016 shooting of Jamar.
F. Bullet Trajectories
A criminologist conducted a reconstruction to estimate the path of the
bullets during the shooting. She did this by measuring bullet holes, entry
and exit holes, identifying where cartridge casings fell, and inserting
trajectory rods into the bullet holes. She provided a diagram of the
positioning of the Pontiac and Jeep at the time of the shooting, which showed
the Jeep slightly behind the Pontiac. Some of the shots fired from the Jeep
5
into the Pontiac entered the rear passenger side of the Pontiac through the
window or rubber stripping around the window. Two entered through the
front passenger seat and one hit the top edge of the car seat. This indicated
the Jeep was positioned somewhat behind the Pontiac because the shots into
the Pontiac came from the rear into the driver’s seat. The criminologist also
testified that at some point during the shootout the cars could have been side
by side, but she did not have evidence in terms of bullet holes to support that.
She explained on cross-examination that she could not tell the exact
positions of the vehicles at the start of the shootout. Her reconstruction also
could not determine who fired first or the sequence of shots. She
acknowledged it would have been possible for the vehicles to have been side-
by-side when the first shots were fired if the initial shots fired did not hit
either vehicle.
G. Gang Evidence
Griffin is an active member of the Neighborhood Crips. Jamar was an
active West Coast Crips gang member. The Neighborhood Crips and the
West Coast Crips are traditional allies, or sister gangs. San Diego Police
Department gang unit Detective Jack Schaffer testified respect and
disrespect are important among gang members, and personal issues among
allied gangs would spark rivalries, which could escalate to violence. If a gang
member were disrespected, retaliation would be necessary to earn back
respect from others.
Detective Schaffer had not heard of any problems between the two
gangs immediately prior to the shootout, but following Jamar’s death there
was violence between the West Coast Crips and the Neighborhood Crips, with
individuals from both gangs losing their lives.
6
Sergeant Leahy testified that respect is a huge part of gang culture,
and if a gang member feels he has been disrespected, others in his gang will
retaliate against the offending person. However, when he was asked whether
a gang member who shot at an allied gang member’s house would expect to
be retaliated against, he said that would not be the expectation; the leaders of
the gangs would have to give permission or sanction some sort of retaliation.
On cross-examination, defense counsel asked Sergeant Leahy about an
alleged altercation between Griffin and Jamar. Sergeant Leahy testified that
a gang member informant told him the informant heard from a third person
that a fourth person was present when there was an altercation between
Griffin and Jamar in which Griffin had pulled a gun on Jamar and
threatened him. After others intervened to deescalate the situation, Jamar
said to Griffin, “The next time I see you, I’m going to . . . kill you,” or
something to that effect. The detective did not follow up with the third
person, but he attempted to follow up with other individuals whose names
had been provided; none of those individuals would speak with police. He did
not believe the story was an accurate reflection of what had occurred because
it was a rumor.
H. Autopsy
The autopsy described the manner of death as homicide caused by a
gunshot wound to the chest. Jamar also had a gunshot wound to his right
bicep, and a projectile was recovered from the shoulder blade area of his back.
I. Cellular Phone Evidence
Criminal Intelligence Analyst Peter Villaver testified regarding cell
phone data. He used a visual representation to show jurors cell towers
7
activated by Griffin’s phone the day of shootout, from 11:00 a.m. to 3:00 p.m.3
The visual representation included two locations: the intersection at Euclid
and Market, and the residence where the Jeep was found. He explained cell
tower information was based on activity generated from voice calls and text
messages; they could not pinpoint a phone’s exact location, only general
whereabouts. Cell tower information also did not indicate who was in
possession of the cell phone.
If a cell phone is moving, it can transact with one cell tower or switch to
another cell tower or a number of cell towers. Griffin’s phone consistently
activated the same general towers between 11:00 a.m. and 12:00 p.m.,
indicating the phone was in the East Village neighborhood during that time.
The first activity occurred at 12:09 p.m., in the East Village. At
12:16 p.m., the cell phone activated a cell site in the area of Market Street
and Interstate 15. At 12:19 p.m. and 12:23 p.m., Griffin’s cell phone hit a
tower in the Oakpark neighborhood. At 12:28 p.m., the phone was detected
by a tower in the general area of Euclid and Market. The phone was detected
by that same tower at 12:32 p.m., 12:39 p.m., and 12:56 p.m. There were
additional detections in the same general neighborhood between 1:00 p.m.
and 1:15 p.m. From 1:15 p.m. to 2:00 p.m., there were multiple hits to towers
in the Fairmont Park and Oakpark areas, near where Interstates 805 and 15
cross. Villaver testified that there was one activation in the Golden Hill area
during that same period, but because it occurred in the midst of back and
forth activities, it appeared the tower near Golden Hill was the best to
provide service, but the phone was likely in the Fairmont Park or Oakpark
3 Some of the cell phone tower activations indicated antenna
directionality, and others did not.
8
area. Based on the saturation of cell towers, the phone was moving to the
northwest away from the Market and Euclid intersection.
On cross-examination, defense counsel clarified with Villaver that the
precise location of the phone could not be identified at any given activation,
and that there was a range of area in which the phone could have been
located.
J. Charges and Closing Arguments
Griffin was charged with the murder of Jamar (§ 187, subd. (a);
count 1), along with allegations of personal use and discharge of a handgun,
proximately causing great bodily injury, within the meanings of
section 12022.5, subdivision (a), and section 12022.53, subdivisions (b), (c),
and (d). He was also charged with assault with a semi-automatic firearm on
the five-month old (§ 245, subd. (b); count 2), as well as an allegation of
personal use of a handgun (§ 12022.5, subd. (a)); shooting at an occupied
motor vehicle (§ 246; count 3), as well as discharging a handgun (§ 12022.53,
subd. (d)); and shooting at an inhabited dwelling (§ 246; count 4). He was
also charged with two prison priors.
In closing, the prosecutor argued Griffin had committed first degree
murder both because he had waited at the intersection to attack Jamar and
because he fired from a vehicle. To support his first theory, the prosecutor
relied on the cell phone evidence and commented on the presence of a ski
mask recovered from the Jeep, as well as the possession of the gun used to
kill Jamar. He argued Griffin had hunted Jamar and explained why self-
defense could not justify Griffin’s actions.
Griffin’s primary defense was that the killing was justified because he
acted in self-defense. As part of this theory, the defense argued that Griffin’s
passenger was his wife, Maria, whom he married April 11, 2016. The defense
9
argued it was unlikely Griffin would have been lying in wait with his new
wife in the car.
K. Verdicts and Sentencing
The jury found Griffin guilty on all counts and found true each
allegation. The court sentenced Griffin to 50 years to life for count 1, but it
struck the punishment on prison priors under section 667.5, subdivision (b).
It imposed six years for count 2 (§ 245, subd. (b)), seven years for count 3
(§ 246), stayed pursuant to section 654, and an additional year and eight
months consecutive for count 4 (§ 246). It imposed four years for the use of a
firearm in connection with count 2 (§ 12022.5, subd. (a)), which it then struck.
The sentence was for a total of seven years eight months plus 50 years to life.
The court also imposed a restitution fine for $10,000 (§ 1202.4,
subd. (b)), a parole revocation fine of $10,000, stayed, (§ 1202.45), a court
security fee of $160 (§ 1465.8), a criminal conviction assessment of $120 (Gov.
Code, § 70373), a criminal justice administration fee of $154 (Gov. Code,
§ 29550), and victim restitution of $5,600 (§ 1202.4, subd. (f)) to which Griffin
stipulated.
Griffin timely filed this appeal November 9, 2018.
In April 2019, citing section 1237.2, Griffin filed an informal motion in
the trial court for correction of fines and fees, arguing that the imposition of
these fines and fees without a hearing violated his due process rights. The
motion requested a stay of the restitution fines and reversal of the remaining
fees pending a finding that the State had proved Griffin had an ability to pay.
The court denied the motion in May 2019, noting Griffin had forfeited the
issue of inability to pay by failing to raise it at sentencing. The trial court’s
order noted that Griffin could have raised the issue with respect to the
restitution fine above the $300 mandatory minimum (§ 1202.4, subd. (d)) and
10
the criminal justice administration fee (Gov. Code, §§ 29550, subd. (d)(2),
29550.2, subd. (a).)
DISCUSSION
I
PROSECUTORIAL MISCONDUCT
Defendant contends the prosecutor engaged in misconduct by deceiving
and misleading jurors during closing arguments. He bases these claims on
the prosecutor’s statements that defendant sat at the intersection for over
half an hour waiting for the victim to appear, so he could attack and the
prosecutor’s reference to a ski mask discovered in the front seat of Griffin’s
vehicle. He also argues it was prosecutorial misconduct to reference the
parties’ gang involvement, and he maintains the prosecutor improperly
directed the jury to consider the broader societal message of a guilty verdict.
A. Forfeiture
As a preliminary matter, we agree with the Attorney General that
defendant forfeited his claim of prosecutorial misconduct because he failed to
“ ‘make a timely and specific objection and ask the trial court to admonish the
jury to disregard the impropriety.’ ” (People v. Clark (2011) 52 Cal. 4th 856,
960, quoting People v. Cole (2004) 33 Cal. 4th 1158, 1201 (Cole); see also
People v. Dennis (1998) 17 Cal. 4th 468, 521 (Dennis).)
B. Specific Instances of Prosecutorial Misconduct
Even were we to conclude the defendant’s claims were properly before
us, we would conclude they fail on the merits. “A prosecutor’s misconduct
violates the Fourteenth Amendment to the United States Constitution when
it ‘infects the trial with such unfairness as to make the conviction a denial of
due process.’ [Citations.] In other words, the misconduct must be ‘of
sufficient significance to result in the denial of the defendant’s right to a fair
11
trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial
fundamentally unfair nevertheless violates California law if it involves ‘the
use of deceptive or reprehensible methods to attempt to persuade either the
court or the jury.’ [Citations.]” (Cole, supra, 33 Cal.4th at p. 1202.)
Referring to facts not in evidence constitutes misconduct because it
tends to make a prosecutor his or her own witness, “ ‘offering unsworn
testimony not subject to cross-examination.’ ” (People v. Hill (1998) 17
Cal. 4th 800, 828, overruled on another ground in Price v. Superior Court
(2001) 25 Cal. 4th 1046, 1069, fn. 13.) However, “[p]rosecutors have wide
latitude to discuss and draw inferences from the evidence at trial” (People v.
Lucas (1995) 12 Cal. 4th 415, 473 (Lucas)), and we “view the statements in
the context of the argument as a whole” (Cole, supra, 33 Cal.4th at p. 1203).
It was for the jury to determine whether those inferences were reasonable.
(Lucas, at p. 474.)
1. Cell Phone
a. Additional Facts
The prosecutor told the jury Griffin’s phone pinged near the
intersection starting at 12:28 p.m. He said Griffin’s phone activated “those
towers right there at that intersection,” and he offered an inference that
because the phone pinged off the same towers for the next 30 minutes, it
meant “[t]he defendant waited at Market and Euclid for 30 minutes.” He
argued: “We didn’t hear any evidence that he lives by there. He was staying
by there. It looks like they’re living out of the Jeep.” In rebuttal, in the
context of explaining this was a situation of mutual combat or that Griffin
sought out the victim, he said, “Mr. Griffin waited, waited at that intersection
for [Jamar] with a gun and a ski mask and executed Jamar . . . , and that is
not a killing that is justified under the law.”
12
b. Analysis
Griffin contends the prosecutor’s use of cell phone evidence during his
closing argument relied on evidence not admitted. The prosecutor’s cell
phone argument was based on the theory that Griffin sought out the victim,
first at his home on Balmoral Drive, then later at the intersection of Market
and Euclid.
The prosecutor inferred that the cell tower records showed Griffin
remained at the intersection of Euclid and Market because the phone
activations indicated he remained in the same area at 12:32, 12:39, and
12:56 p.m., the 30 minutes immediately preceding the shootout. He asked
the jury to likewise infer the cell tower evidence placed Griffin at the scene,
waiting for the opportunity to kill the victim. Whether the prosecutor’s
inference was reasonable was a question for the jury to decide. (See Lucas,
supra, 12 Cal.4th at p. 474.) While the challenged remarks may have been
hyperbolic, we cannot say they were based on evidence outside the record or
that they were misleading. (See Dennis, supra, 17 Cal.4th at p. 522.)
Accordingly, this did not rise to the level of prosecutorial misconduct.
2. Ski Mask
The prosecutor referred to the presence of a ski mask in Griffin’s car as
evidence Griffin was planning an attack on Jamar, telling the jury the mask
was sitting in the front of the car “at that intersection for 30 minutes.”
Griffin maintains this was improper because it went beyond inferences
reasonably warranted by the evidence.
Griffin argues that ski masks are associated more frequently with
robberies than with shootouts; he explains that the shooter here was in a car
rented in his own name, eliminating the need to obfuscate his identity, and
he notes that no witnesses described anyone in the vehicle as wearing a mask
13
at the scene of the crime. This boils down to a battle of inferences; Griffin
offers on appeal an alternative inference that could explain the mask. This
does not make the inference offered by the prosecution an unreasonable one;
nor does it mischaracterize the evidence or implicate misconduct in some
other way. Moreover, the prosecutor is not prohibited from using multiple
pieces of evidence to draw an inference.4 (People v. Lewis (1990) 50 Cal. 3d
262, 283 [prosecutor has right to fully state his views of what the evidence
shows].) Here the prosecution used Griffin’s location based on cell tower
evidence in conjunction with the mask to infer Griffin had planned an attack.
It was up to the jury to decide whether the prosecutor’s inferences were
reasonable. (See Lucas, supra, 12 Cal.4th at p. 474; Lewis, at p. 283 [jury
decides if deductions are logical].)
C. References to Gangs in Closing
Griffin further contends the prosecutor engaged in misconduct because
he referenced the parties’ gang affiliations in a manner aimed at arousing
juror’s passions. He specifically challenges the prosecutor’s statements that
“you cannot create a gang war zone in an intersection in San Diego and have
4 Griffin separately argues the cell phone and ski mask arguments were
necessary because evidence regarding the relative positions of the two
vehicles during the shootout was weak. Having already explained that the
challenges to those arguments were forfeited and not improper supra, the
reason for emphasizing that evidence seems unimportant. However, we note
that there was independent evidence to support the prosecutor’s claim that
Griffin fired bullets from the Jeep while it was positioned slightly behind the
Pontiac: The criminologist opined that because several shots entered the
Pontiac through the right rear passenger side, the Jeep was positioned
somewhat behind the Pontiac. Although she acknowledged the vehicles could
have been side-by-side at some point during the shootout, she also explained
that were that to have been the case when the shootout began, it would have
meant the initial shots fired went through open windows, implying neither
vehicle or person was hit.
14
it be justified” and “[g]ang members are not allowed to declare war, create a
gang war, and create a shootout in a busy San Diego intersection.”
“When the issue ‘focuses on comments made by the prosecutor before
the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.’ [Citations.]” (People v. Harrison (2005) 35 Cal. 4th 208, 244
(Harrison).) Prosecutors have wide latitude during closing argument to
argue vigorously, including by offering reasonable inferences and deductions.
(Ibid.) We will not reverse a conviction for prosecutorial misconduct “unless
it is reasonably probable a result more favorable to the defendant would have
been reached without the misconduct.” (People v. Crew (2003) 31 Cal. 4th 822,
839 (Crew).)
Griffin’s attorney argued that the case was all about “prosecuting the
survivor,” that Griffin was being hunted by the victim, and that Griffin
responded in self-defense. The prosecutor’s statements challenged this view
in two ways. First, the prosecutor argued Griffin hunted the victim; thus,
Griffin’s actions were not justified because they were not an act of self-
defense. Second, the prosecutor contradicted Griffin’s self-defense theory by
arguing that at best the two men had engaged in mutual combat. In this
context, the prosecutor’s statements were an explanation for why mutual
combat could not justify a self-defense claim, not broad commentary in
support of public safety.
Griffin also maintains the prosecutor engaged in misconduct by arguing
facts not in evidence because the men were from allied gangs, not rival gangs.
But the prosecutor’s statements do not reference the relationship between the
gangs at all, and Detective Schaffer testified that there had been times when
the relationship between the gangs was not good and there would be a “little
15
feud,” usually a fistfight, as a result of something personal between allied
gang members. He also explained that following the victim’s death, things
were violent between the two allied gangs for a couple months, with
individuals from both sides losing their lives, which demonstrates that their
gang’s status as allies did not preclude violence. Thus, we cannot say these
comments demonstrated misconduct.
Moreover, even if these comments crossed the line to misconduct, we
find it unlikely that jurors would have applied the remarks in an
objectionable fashion. (See Harrison, supra, 35 Cal.4th at p. 244.) There was
no dispute that the two participants in the shootout were gang members or
that the defendant’s bullets killed the victim at the intersection. And there
was no dispute that Griffin fired from his vehicle the shot that killed the
victim. The only issue was related to Griffin’s intent, which the jury could
determine by contemplating the sequence of events and whether the two men
were engaged in mutual combat. Under these circumstances, it is not
reasonably probable that the reference to gangs in closing argument
impacted the jury’s determination regarding whether Griffin’s actions met
the requirements for first degree murder. (See Crew, supra, 31 Cal.4th at
p. 839.)
As we previously noted, even if these various statements Griffin now
complains of were to have risen to the level of misconduct, none of them was
so serious that an objection and admonition would have been inadequate to
cure the harm; thus, the argument is forfeited. (People v. Wharton (1991) 53
Cal. 3d 522, 566 (Wharton).) Finally, the trial court instructed the jury that
arguments were not evidence, and that it was up to the jury to decide facts
based on evidence. (See CALCRIM Nos. 200 & 222.) We presume the jury
16
understood and followed these instructions. (People v. Hajek and Vo (2014)
58 Cal. 4th 1144, 1178.)
D. Ineffective Assistance of Counsel
Griffin argues in the alternative that the failure to object constituted
ineffective assistance of counsel. To demonstrate ineffective assistance of
counsel, Griffin must show his attorney’s performance (1) fell below an
objective standard of reasonableness under prevailing professional norms,
and (2) the deficient performance prejudiced the defense. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688.) We evaluate counsel’s conduct
with deference and “indulge a strong presumption that counsel’s acts were
within the wide range of reasonable professional assistance.” (Dennis, supra,
17 Cal.4th at p. 541.) “ ‘ “[If] the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . . unless counsel
was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be
rejected.’ [Citation.]” (People v. Mendoza Tello (1997) 15 Cal. 4th 264, 266.)
We presume defense counsel rendered adequate assistance (People v.
Ledesma (1987) 43 Cal. 3d 171, 215). Moreover, “ ‘a mere failure to object to
evidence or argument seldom establishes counsel’s incompetence.’
[Citation.]” (Wharton, supra, 53 Cal.3d at p. 567.)
There were tactical reasons that could explain why defense counsel did
not object to various prosecution arguments. He could have opted not to focus
on whether defendant was near the intersection before the shootout, the
meaning of the mask, or the comments about gang violence because he
wanted to ensure the jury focused on the key issue for the self-defense theory,
which was determining who pulled out a weapon first. He argued Griffin
would not have instigated the shootout because his new wife was with him
17
in the vehicle, and he would not have put her in danger. And he told the jury
that the victim firing first was consistent with acting in retaliation for
defendant attempting to shoot up his home 10 days earlier, and with the
victim’s promise to defendant that the next time the victim saw Griffin, the
victim would kill Griffin.
Ultimately, the record does not reveal an explanation for defense
counsel’s failure to object to the arguments. Thus, the question is cognizable
only on a habeas corpus, as part of a claim for ineffective assistance of
counsel. (Dennis, supra, 17 Cal.4th at p. 521.)
II
JURY INSTRUCTIONS
Griffin next argues jury instruction CALCRIM No. 224 uses language
that improperly dichotomizes innocence from guilt. He recognizes CALCRIM
No. 224 is an approved jury instruction but maintains it is improper because
its language violates due process and a fair trial.
The failure to object to a jury instruction forfeits the claim on appeal
(see People v. Souza (2012) 54 Cal. 4th 90, 120 (Souza)) unless the error
implicates a defendant’s substantial rights (§ 1259; see People v. Carey (2007)
41 Cal. 4th 109, 129). We review an alleged instructional error de novo to
assess whether the instruction accurately states the law. (People v. Posey
(2004) 32 Cal. 4th 193, 218.) We consider whether an error in the instructions
caused the jury to misapply the law (People v. Lucas (2014) 60 Cal. 4th 153,
287), viewing it “in the context of the instructions as a whole and the trial
record to determine whether there is a reasonable likelihood the jury applied
the instruction in an impermissible manner” (People v. Houston (2012) 54
Cal. 4th 1186, 1229). “A trial court may properly reject an instruction
proposed by the defendant if the instruction incorrectly states the law; is
18
argumentative, duplicative, or potentially confusing; or is not supported by
substantial evidence. [Citation.]” (People v. Zaragoza (2016) 1 Cal. 5th 21, 53
(Zaragoza).)
CALCRIM No. 224 provides in relevant part: “If you can draw two or
more reasonable conclusions from the circumstantial evidence, and one of
those reasonable conclusions points to innocence and another to guilt, you
must accept the one that points to innocence.”
Griffin argues jurors would have approached the instructions with their
common-sense understanding of the meaning of “innocence.” He maintains
that a proper legal instruction would have replaced the word “innocence” with
“a finding that guilt has not been proven,” citing to Zaragoza as approving
such a change in the language.
In Zaragoza, at the defendant’s request, the court used a modified
version of CALJIC No. 2.01, the predecessor to CALCRIM No. 224.
(Zaragoza, supra, 1 Cal.5th at pp. 52-53.) The issue there was whether the
trial court erred by declining to use the defendant’s requested pinpoint
instruction, which attempted to link the instruction’s principles to the
defense’s theory of the case. (Id. at p. 53.) The Supreme Court concluded
there was no error because the requested pinpoint instruction was an
incorrect statement of law. (Ibid.) It did not directly address the substance
of the modified version of CALJIC No. 2.01; thus, Zaragoza is not particularly
relevant.
However, the Third Appellate District addressed the language of
CALJIC No. 2.01 in People v. Wade (1995) 39 Cal. App. 4th 1487, 1493 (Wade).
That instruction explained that if circumstantial evidence was susceptible to
two reasonable interpretations, and one pointed to innocence and the other to
guilt, the jury was required to adopt the interpretation that pointed to
19
innocence and to reject the interpretation pointing to guilt. (Ibid.) The
defendant argued that characterizing the options as guilt and innocence
undermined the burden of proof required by the prosecution. (Ibid.) The
court of appeal disagreed: “To say that evidence ‘points to’ innocence does not
suggest that a defendant has to prove his innocence. The language is used
simply as a status of not guilty, a kind of compass or direction signal
indicating where the evidence points.” (Ibid.)
The appellate court noted that the jury instruction also included
language that explained that “ ‘[e]ach fact which is essential to complete a set
of circumstances necessary to establish the defendant’s guilt must be proved
beyond a reasonable doubt. In other words, before an inference essential to
establish guilt may be found to have been proved beyond a reasonable doubt,
each fact or circumstance upon which such inference necessarily rests must
be proved beyond a reasonable doubt.’ ” (Wade, supra, 39 Cal.App.4th at
p. 1492, quoting CALJIC No. 2.01.) It explained that given that context, “no
reasonable juror would apply the instruction in the manner suggested by
defendant.” (Ibid.)
Wade was cited with approval by our Supreme Court in Crew. In Crew,
the defendant challenged four standard jury instructions that referred to
“guilt or innocence,” and the defendant argued such language “relieved the
prosecution of its burden of proof by implying that the issue was one of guilt
or innocence instead of whether there was or was not a reasonable doubt
about defendant’s guilt.” (Crew, supra, 31 Cal.4th at p. 848.) But the
Supreme Court concluded the word “innocence” in the jury instructions
means “evidence less than that required to establish guilt, not [that] the
defendant must establish innocence or that the prosecution has any burden
other than proof beyond a reasonable doubt.” (Ibid.)
20
The same is true here. CALCRIM No. 224 opens by explaining that
jurors must be convinced that the prosecution has “proved each fact essential
to [a finding of guilt] beyond a reasonable doubt.” The next paragraph
explains that in addition to determining that each fact essential to a guilty
verdict has been proved beyond a reasonable doubt, the jury “must be
convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant is guilty.” (CALCRIM No. 224.)
The inclusion of the word “innocence” does not lead us to conclude that the
instruction has shifted the burden of proof. Instead, the use of the word
“innocence” simply means “less than that required to establish guilt.” (Crew,
supra, 31 Cal.4th at p. 848.)
Furthermore, the prosecution’s burden of proof beyond a reasonable
doubt was repeated in several other jury instructions, including CALCRIM
Nos. 505 (outlining the requirements for justifiable homicide via self-
defense), 521 (addressing first degree murder), 570 (defining the
requirements for heat of passion voluntary manslaughter), 571 (regarding
imperfect self-defense voluntary manslaughter), 3146 and 3148 (detailing the
requirements for a finding the defendant personally used a firearm), and
3470 (discussing self-defense). The burden of proof was also emphasized
throughout closing arguments by both attorneys, so there was no uncertainty
regarding what was required.
As the Supreme Court noted, the use of the word “innocence” in the
instruction does not make it inaccurate. (Crew, supra, 31 Cal.4th at p. 848;
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455 [bound by
precedent].) Thus, Griffin’s substantial rights have not been implicated and
his challenge has been forfeited. (Souza, supra, 54 Cal.4th at p. 120.)
21
III
FINES, FEES, AND ASSESSMENTS
The Attorney General argues Griffin forfeited the right to request an
ability-to-pay hearing because he did not object to the restitution fine.
Although he mentions in his brief that a different result could be reached
regarding the nonpunitive assessments, during oral argument, the attorney
clarified that the matter did not need to be remanded because the issue of
ability to pay regarding all fines, fees, and assessments had been forfeited.
We agree with the Attorney General that Griffin’s failure to object to the
restitution fine forfeits the issue for appeal. (People v. Gutierrez (2019) 35
Cal. App. 5th 1027, 1032-1033 (Gutierrez).)
Griffin had a statutory right to object to the imposition of the $10,000
restitution fine under section 1202.4, subdivision (c), and he also could have
objected to the criminal administration fees, as the trial court pointed out in
response to Griffin’s informal motion for correction of fines and fees. Griffin’s
silence is a typical example of forfeiture. (See, e.g., People v. Nelson (2011) 51
Cal. 4th 198, 227 [defendant forfeited his ability to challenge a restitution fine
of $10,000 when he did not object at sentencing].) Because Griffin did not
object to the $10,000 restitution fine or the $154 criminal administration fee,
he would not have objected to the additional and much smaller $280 in fees
and assessments.5 (See Gutierrez, supra, 35 Cal.App.5th at p. 1033 [“As a
practical matter, if [the defendant] chose not to object to a $10,000 restitution
fine based on inability to pay, he surely would not complain on similar
grounds regarding an additional $1,300 in fees.”].) Therefore, we find Griffin
has forfeited his right to challenge the fines, fees, and assessments on appeal.
5 Griffin stipulated to the $5,600 victim restitution at the sentencing
hearing.
22
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
23