People v. Palacios CA4/3 ( 2023 )

Filed 10/25/23 P. v. Palacios CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061763
v. (Super. Ct. No. 04CF1972)
JUAN ANTONIO PALACIOS, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Garey S.
Paer, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and
Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Juan Antonio Palacios shot and killed his coworker Mario S. and then fled
to Mexico. Nineteen years later, a jury found Palacios guilty of murder and found true a
firearm sentencing enhancement. The trial court imposed a sentence of 40 years to life.
On appeal, Palacios claims instructional error, prosecutorial misconduct,
ineffective assistance of counsel, and cumulative prejudice. We find no prejudicial
errors. Thus, we affirm the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
On January 4, 2003, Palacios and Mario were both working as security
guards at a private party hall in Santa Ana. At the end of the night’s event, they were
both paid in cash in the owner’s office. The owner paid Palacios and Mario each $10 per
hour for six hours of work and set the money in two stacks on his desk. Palacios and
Mario had a verbal argument about the money. Palacios grabbed Mario’s cash, crumpled
it up, and threw it on the floor. Mario picked up the $60 and kept it.
Palacios later approached Mario in his car in the parking lot and threatened
to kill Mario if he was not paid the money he believed he was owed. Mario drove away
in his vehicle. Another employee, Jorge H., had seen Palacios arguing with Mario.
Palacios asked Jorge for a ride home. Jorge refused because Palacios was violent and
upset. Jorge had seen Palacios with a gun in his waistband about a week prior.
Palacios asked Emilio P., another employee who happened to have been
attending that night’s event to give him a ride. Emilio was with his friend, Facundo S.,
whom Emilio referred to as his nephew. Emilio agreed to give Palacios a ride, and the
three men left in Emilio’s vehicle. Emilio had seen Palacios with a gun in his vehicle
about two or three months earlier. Palacios told Emilio to take him to Mario’s house
because Mario owed Palacios money and he was getting paid. Emilio did not know
exactly where Mario lived in Tustin because he had never been there before. Palacios
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directed him on how to get there.
When Emilio arrived at Mario’s house, Palacios told him to stop. Emilio
parked on the street and Palacios got out of the vehicle. Palacios told Emilio to wait.
Palacios said he was going to get his money from Mario and he would be back quickly.
Palacios went to Mario’s apartment and knocked on the front door. Mario’s children
were having a sleepover party with their friends, and Mario was talking to his wife in
their bedroom, when they heard a loud knock on the front door.
Mario went to the front door and asked Palacios what he was doing there.
Palacios grabbed Mario by the arm and pulled him outside. The two men were arguing in
the driveway area as they were standing about three feet from one another. Palacios was
telling Mario that he wanted his money. Within seconds, Palacios pulled a gun out from
his waistband, pointed it at Mario’s chest, and shot him. Palacios tried to shoot a second
time, but the gun did not fire. Mario touched his stomach area and ran towards a
driveway. Mario’s family members ran outside and found Mario’s lifeless body near the
apartments next door.
Palacios ran back to Emilio’s vehicle and got in. Palacios was nervous and
“very agitated.” Palacios put a gun to Emilio’s stomach and told him to drive to a
location in Santa Ana. Palacios told Emilio if he said anything to the police about the
shooting he would kill him. Emilio eventually dropped Palacios off in Santa Ana.
At about 3:30 a.m., Palacios showed up at his brother’s house. Palacios
looked scared, he had a bruise on his lip, and he was carrying a small gym bag. Palacios
said he needed to get to the border right away because he had just had a fight with his
wife. At around 5:30 a.m., Palacios’ brother dropped Palacios off in the parking lot of a
San Diego area hotel located about one mile away from the border. Palacios’ brother
gave Palacios $100 in cash.
In 2018, police served an arrest warrant on Palacios at the Los Angeles
International Airport.
3
Court Proceedings
In 2019, the prosecution filed an information charging Palacios with
1
murder. (Pen. Code, § 187, subd. (a).) The information further alleged that during the
commission of the murder, Palacios intentionally and personally discharged a firearm
causing Mario’s death. (§ 12022.53, subd. (d).)
Several witnesses testified at a jury trial. Emilio said his view of the
shooting was obstructed, but he could hear Mario and Palacio arguing with each other
while he sat inside his car. Facundo described the shooting, which he said he could see
from where he was seated in the backseat of Emilio’s car.
Mario’s son and daughter, who were respectively eight and nine years old
at the time of the shooting, testified at trial. Both children heard Palacios knock on the
door, and then saw Palacios pull their father from the apartment. They then heard
“gunshots.” Mario’s daughter and wife went outside and eventually found Mario’s body.
Mario’s wife testified that after Mario came home from work, they were
both in the bedroom when there was a knock on the door. Mario ran out of the bedroom
and said, “‘Don’t open the door.’” However, Mario’s wife said: “The children had
already opened the door.” She later turned over Mario’s wallet to the police; inside were
three crumpled up $20 bills.
Police officers testified they found a single shell casing at the crime scene,
and later found an empty gun magazine in Palacios’ home (this evidence will be covered
more thoroughly in the discussion section of this opinion).
Palacios testified at the trial. He said that on the night of the shooting,
Mario owed him money. Palacios testified that as Emilio drove him home from the party
hall, Emilio asked why he was going home rather than to Mario’s house to collect his
money. Palacios said he did not know where Mario lived, but Emilio took him to Tustin
1
Further undesignated statutory references are to the Penal Code.
4
and pointed out the apartment where Mario lived. Palacios said he did not have a gun.
Palacios testified he was angry when he got to Mario’s apartment, and he told Mario he
wanted to talk.
Palacios said as they were walking out of the apartment, Mario hit him in
the back of the head, causing him to fall down. He testified Mario then grabbed him by
the shirt and cussed at him. Palacios said Mario had a dark object in his hand, which he
thought was a knife or a gun. Palacios said he was afraid for his life and tried to grab the
object from Mario. Palacios said in a struggle, the gun “went off” and shot Mario.
Palacios testified he was not sure whether he or Mario had pulled the trigger. Palacios
said he heard the gun fall to the ground. Palacios said he fled, rather than calling the
police, because he did not think the police would believe him.
On cross-examination, Palacios said he considered Emilio to be a friend,
and he never had any prior problems with either Emilio or Facundo.
The jury found Palacios guilty of second degree murder; the jury did not
find Palacios guilty of first degree murder (no premeditation and deliberation). The jury
found true the sentencing allegation that Palacios personally and intentionally discharged
a firearm proximately causing Mario’s death. The trial court imposed a total aggregate
sentence of 40 years to life.
II
DISCUSSION
Palacios claims: A) the trial court committed instructional error; B) the
prosecutor committed misconduct; C) his trial counsel provided ineffective assistance;
and D) there was cumulative prejudice. We shall address each claim.
A. Instructional Error Claim
Palacios claims the trial court erred when it refused to instruct the jury on
5
involuntary manslaughter as a lesser included offense. We agree. However, we do not
find the error to be prejudicial. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
We review instructional error claims de novo. (People v. Posey (2004) 32
Cal.4th 193, 218.) We determine whether the trial court fully and fairly instructed the
jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
In this part of the discussion, we will: 1) review relevant legal principles
on lesser included offenses as to the crime of murder; 2) summarize the trial court
proceedings; and 3) apply the facts to the law.
1. Relevant Legal Principles
“‘The trial court is obligated to instruct the jury on all general principles of
law relevant to the issues raised by the evidence, whether or not the defendant makes a
formal request.’ [Citations.] ‘That obligation encompasses instructions on lesser
included offenses if there is evidence that, if accepted by the trier of fact, would absolve
the defendant of guilt of the greater offense but not of the lesser.’ [Citations.] ‘To justify
a lesser included offense instruction, the evidence supporting the instruction must be
substantial—that is, it must be evidence from which a jury composed of reasonable
persons could conclude that the facts underlying the particular instruction exist.’”
(People v. Souza (2012) 54 Cal.4th 90, 115–116.)
Although there is no duty to instruct on a lesser included offense when the
evidence supporting the instruction is based on mere speculation, such an instruction is
required when the lesser included offense is supported by ““‘evidence that a reasonable
jury could find persuasive.”’” (People v. Steskal (2021) 11 Cal.5th 332, 345.) This duty
arises even when the lesser included offense is inconsistent with the defendant’s trial
theories, or contrary to the defendant’s wishes. (People v. Breverman (1998) 19 Cal.4th
142, 155, 162–163, [“every lesser included offense, or theory thereof, which is supported
by the evidence must be presented to the jury”].)
6
“Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187, subd. (a).) “For purposes of Section 187, malice may be express
or implied. [¶] (1) Malice is express when there is manifested a deliberate intention to
unlawfully take away the life of a fellow creature. [¶] (2) Malice is implied when no
considerable provocation appears, or when the circumstances attending the killing show
an abandoned and malignant heart.” (§ 188, subd. (a).)
Generally, first degree murder involves the additional element of
premeditation and deliberation; all other murders are of the second degree. (People v.
Chavez (2018) 22 Cal.App.5th 663, 682.) Manslaughter (voluntary and involuntary) is a
lesser included offense of murder, if supported by substantial evidence. (People v.
Elmore (2014) 59 Cal.4th 121, 133.) “Voluntary manslaughter can be committed without
committing involuntary manslaughter, and thus the latter is not a lesser included offense
of voluntary manslaughter.” (People v. Orr (1994) 22 Cal.App.4th 780, 784.)
“When a homicide, committed with malice, is accomplished in the heat of
passion or under the good faith but unreasonable belief that deadly force is required to
defend oneself from imminent harm, the malice element is ‘negated’ or, as some have
described, ‘mitigated’; and the resulting crime is voluntary manslaughter, a lesser
included offense of murder.” (People v. Brothers (2015) 236 Cal.App.4th 24, 30.)
“Involuntary manslaughter, in contrast, [is the] unlawful killing of a human
being without malice. (§ 192.) It is statutorily defined as a killing occurring during the
commission of ‘an unlawful act, not amounting to a felony; or in the commission of a
lawful act which might produce death, [accomplished] in an unlawful manner, or without
due caution and circumspection.’ (§ 192, subd. (b).) Although the statutory language
appears to exclude killings committed in the course of a felony, the Supreme Court has
interpreted section 192 broadly to encompass an unintentional killing in the course of a
noninherently dangerous felony committed without due caution or circumspection.”
(People v. Brothers, supra, 236 Cal.App.4th at p. 31.)
7
Further, “an instruction on involuntary manslaughter as a lesser included
offense must be given when a rational jury could entertain a reasonable doubt that an
unlawful killing was accomplished with implied malice during the course of an inherently
dangerous assaultive felony.” (Brothers, supra, 236 Cal.App.4th at pp. 33–34; see also
People v. Thomas (2012) 53 Cal.4th 771, 814 [“an accidental shooting that occurs while
the defendant is brandishing a firearm . . . could be involuntary manslaughter”].)
2. Trial Court Proceedings
At the conclusion of the evidence, defense counsel asked the trial court to
instruct the jury on involuntary manslaughter as a lesser included offense. (CALCRIM
2
No. 580.) Counsel argued the jury could potentially find Palacios unintentionally killed
Mario during an assault with a firearm: “And I think that could be the crime entered as
the defendant committed a [section] 245. And I think that is something that the jurors
could feasibly latch onto or conceivably think about if they were to believe that Juan
Palacios is the one who showed up with a gun.”
The trial court declined to give the requested involuntary manslaughter jury
instruction and stated its reasoning as follows:
“This is the court’s position on this. In order for there to be an involuntary
manslaughter there has to be a lawful act committed by the defendant. So even based on
what you just said that he showed up with a gun and he assaulted someone with a gun,
that could never be deemed a lawful act.
“First of all, carrying a gun in public unless you have a CCW or license or
2
“When a person commits an unlawful killing but does not intend to kill and does not act
with conscious disregard for human life, then the crime is involuntary manslaughter. [¶]
. . . . [¶] The defendant committed involuntary manslaughter if: [¶] 1. The defendant
committed (a crime/ [or] a lawful act in an unlawful manner); [¶] 2. The defendant
committed the (crime/ [or] act) with criminal negligence; [¶] AND [¶] 3. The
defendant’s acts caused the death of another person.” (CALCRIM No. 580.)
8
you’re a peace officer, carrying a firearm in public that’s not lawful. And certainly if you
take a gun—or even without a gun you assault someone, that’s not lawful. So you have
to have a lawful act being performed in an unlawful manner. And I don’t think there is
sufficient facts in this case to warrant giving that instruction.”
The trial court stated that it was going to instruct the jury on first and
second degree murder, complete self-defense, imperfect self-defense (voluntary
manslaughter), and heat of passion (voluntary manslaughter).
“So basically the jury is going to get like all different options. They are
going to get murder in the first, murder in the second, voluntary manslaughter based on
heat of passion because there was evidence to support that he was agitated and upset all
arising out of the fight over the money. And then as well the instruction on voluntary
manslaughter for imperfect self-defense. As well as excusable murder based on complete
self-defense. I believe the instructions that I’m going to give cover all those avenues
appropriately. But I do not believe that the 580 involuntary manslaughter, I don’t believe
there is sufficient facts in this case to warrant giving that instruction. So I’m going to
refuse that instruction.” (See CALCRIM No. 580.)
3. Analysis and Application
The trial court stated: “In order for there to be an involuntary manslaughter
there has to be a lawful act committed by the defendant.” (Italics added.) That statement
was erroneous. An involuntary manslaughter (an unlawful killing without malice) can
occur either during the commission of a lawful act or an unlawful act, depending on the
9
3
factual circumstances. (See § 192, subd. (b).) In this case, we hold there was sufficient
evidence to trigger the court’s sua sponte duty to instruct on involuntary manslaughter
(an unintentional killing) during an unlawful act.
During the trial, several witnesses testified Palacios was upset with Mario
on the night of the shooting over the issue of money. According to the owner of the
private party hall, an argument started in his office. According to other witnesses, the
argument continued into the parking lot.
Emilio testified Palacios directed him to drive him to Mario’s apartment for
the specific purpose of collecting the money that he was owed. Emilio further testified
Palacios said he was going to collect the money just before approaching Mario’s
apartment. Witnesses testified Palacios pulled Mario out of his apartment. Facundo
testified that he saw Palacios pull his gun from his waistband and shoot Mario in the
chest. Emilio testified that Palacios then immediately returned to the car with a firearm
and fled from the scene. Emilio testified Palacios threatened him with the firearm.
Conversely, Palacios testified that he did not show up to Mario’s apartment
with a gun, Mario had a weapon and hit him over the head with it, and then the gun fired
accidentally during a struggle between him and Mario.
Defense counsel’s argument to the court when requesting the involuntary
manslaughter instruction was essentially that the jury could have rejected some portions
of Palacios’ testimony, while accepting other portions. That is, the jury could have found
Palacios showed up with a gun and threatened Mario (an assault with a firearm);
however, the weapon may have fired accidentally during the crime. Although this theory
3
“Manslaughter is the unlawful killing of a human being without malice. It is of three
kinds: [¶] (a) Voluntary-upon a sudden quarrel or heat of passion. [¶] (b) Involuntary-
in the commission of an unlawful act, not amounting to a felony; or in the commission of
a lawful act which might produce death, in an unlawful manner, or without due caution
and circumspection. This subdivision shall not apply to acts committed in the driving of
a vehicle. [¶] (c) Vehicular- . . . .” (§ 192.)
10
was internally inconsistent with Palacios’ own testimony, we find the evidence taken as a
4
whole was sufficient to support an instruction on involuntary manslaughter. (See People
v. Breverman, supra, 19 Cal.4th at p. 155 [the duty to instruct on lesser included offenses
arises even when the lesser included offense is inconsistent with the defendant’s trial
theories or contrary to the defendant’s wishes].)
Thus, we hold that the trial court committed instructional error by not
instructing the jury on the lesser included offense of involuntary manslaughter.
However, the failure to instruct on a lesser included offense does not
require “reversal unless an examination of the entire record establishes a reasonable
probability that the error affected the outcome.” (People v. Breverman, supra, 19 Cal.4th
at p. 165.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an
examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.)
“Such posttrial review focuses not on what a reasonable jury could do, but
what such a jury is likely to have done in the absence of the error under consideration. In
making that evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.” (People v.
Breverman, supra, 19 Cal.4th at p. 177.)
In this case, there was relatively strong evidence of second degree murder,
4
Indeed, the trial court instructed the jury on the defense of excusable homicide through
accident. (See CALCRIM No. 510 [Excusable Homicide: Accident].) The Bench Notes
to CALCRIM No. 510 state: “When this instruction is given, it should always be given
in conjunction with CALCRIM No. 581, Involuntary Manslaughter: Murder Not
Charged or CALCRIM No. 580, Involuntary Manslaughter: Lesser Included Offense,
unless vehicular manslaughter with ordinary negligence is charged.”
11
and comparatively weak evidence of involuntary manslaughter. Again, several witnesses
testified Palacios was angry with Mario prior to the shooting. Indeed, Jorge specifically
refused to give Palacios a ride because he was so violent and upset, and Jorge had
recently seen Palacios with a gun in his waistband. Further, Palacios himself testified he
was angry with Mario because he said that Mario owed him money.
Emilio testified that he had also seen Palacios with a gun before the night of
the shooting. Emilio said that Palacios directed him to go to Mario’s apartment in order
to collect the money, which was in contravention of Palacios’ testimony that Emilio had
suggested that he go to Mario’s apartment. Several witnesses testified Palacios pulled
Mario out of his apartment as soon as he got to the front door. And then within seconds,
Facundo described how Palacios pulled a gun from his waistband and shot Mario at point
blank range in the chest. None of the other percipient witnesses saw the actual shooting,
but all of their testimony is fundamentally consistent with Facundo’s testimony. Palacios
then immediately fled the scene by using a gun to threaten Emilio to facilitate his escape.
Later that same night, Palacios fled the country with the help of his brother, who also
testified during the jury trial.
None of the foregoing evidence is consistent with a finding that the
shooting was the result of a mistake. And Palacios’ self-serving testimony that Mario
had a weapon when he left his apartment, and that Mario was the initial aggressor, was
entirely at odds with all of the other percipient witness testimony. Further, Palacios said
the weapon fell to the ground during the struggle with Mario, but there was no weapon
found at the crime scene by the police. Moreover, there was no apparent reason for any
of the percipient witnesses to lie or commit perjury.
Perhaps most significantly, the jury found the firearm sentencing allegation
to be true, which required a finding that Palacios “personally and intentionally discharged
a firearm proximately causing death to Mario.” (See § 12022.53, subd. (d).)
The jury’s true finding as to the firearm enhancement is wholly inconsistent
12
with a possible finding by the same jury that Palacios shot Mario by accident. That is,
since all of the jurors unanimously concluded Palacios had intentionally discharged the
gun causing Mario’s death, they logically could not have also found Palacios
unintentionally discharged the gun causing Mario’s death. (See People v. Koontz (2002)
27 Cal.4th 1041, 1085–1086 [“Error in failing to instruct the jury on a lesser included
offense is harmless when the jury necessarily decides the factual questions posed by the
omitted instructions adversely to defendant under other properly given instructions”].)
Palacios argues: “The jury could have found that appellant committed
involuntary manslaughter when he intentionally discharged a firearm without malice
‘during the course of an inherently dangerous felony.’” We disagree.
The jury found Palacios intentionally discharged a firearm causing Mario’s
death, which negates a finding that Palacios acted without malice (involuntary
manslaughter). (See People v. Hendricks (1988) 44 Cal.3d 635, 643 [“‘Involuntary
manslaughter is . . . inherently an unintentional killing’”]; see also § 188, subd. (a)(1)
[“Malice is express when there is manifested a deliberate intention to unlawfully take
away the life of a fellow creature”].)
Palacios also argues that the jury’s written questions during its deliberations
support a conclusion that the court’s failure to instruct on involuntary manslaughter was
prejudicial. We disagree.
The jury submitted a written question to the court asking: “For implied
malice, do all 4 points need to be met?” The court answered, “Yes.” The jury also
sought clarification about the distinction between first and second degree murder. The
court largely directed the jury to the appropriate instructions. (See People v. Chavez,
supra, 22 Cal.App.5th at p. 682 [generally, first degree murder involves premeditation
and deliberation, and all other murders are of the second degree].)
Given the relative strength of the evidence supporting the second degree
murder conviction, the relative implausibility of Palacios’ testimony supporting a theory
13
of involuntary manslaughter (or accidental death), and the jury’s factual finding that
Palacios personally and intentionally discharged a firearm causing Mario’s death, we do
not think that the jury’s questions indicate anything more than its careful consideration of
the evidence, and its need for further explanation of the court’s instructions.
To reiterate and conclude, we hold that the trial court erred when it refused
to instruct the jury on involuntary manslaughter as lesser included offense of murder, but
we do not find the error to be prejudicial. (See In re Pratt (1980) 112 Cal.App.3d 795,
885 [a defendant is entitled to a fair trial, not a perfect trial].)
B. Prosecutorial Misconduct Claim
Palacios claims the trial court erred when it overruled an objection that the
prosecutor misstated the evidence during closing argument. We disagree.
“As a general matter, an appellate court reviews a trial court’s ruling on
prosecutorial misconduct for abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th
155, 213.) Ordinarily, “a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony
(2004) 33 Cal.4th 367, 377.)
In this part of the discussion, we will: 1) review relevant legal principles
regarding prosecutorial misconduct (or prosecutorial error); 2) summarize the trial court
proceedings; and 3) apply the facts to the law.
1. Relevant Legal Principles
We evaluate claims of prosecutorial misconduct under well-established
standards. “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
14
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
“‘A prosecutor is held to a standard higher than that imposed on other
attorneys because of the unique function he or she performs in representing the interests,
and in exercising the sovereign power, of the state.’” (People v. Hill (1998) 17 Cal.4th
800, 819-820.) However, “‘the term prosecutorial “misconduct” is somewhat of a
misnomer to the extent that it suggests a prosecutor must act with a culpable state of
mind. A more apt description of the transgression is prosecutorial error.’” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667.)
In reviewing a prosecutor’s comments to the jury, “we must view the
statements in the context of the argument as a whole.” (People v. Cole (2004) 33 Cal.4th
1158, 1203.) Generally, a prosecutor has “‘wide latitude to discuss and draw inferences
from the evidence at trial,’ and whether ‘the inferences the prosecutor draws are
reasonable is for the jury to decide.’” (Ibid.) The relevant question is “‘whether there is
a reasonable likelihood that the jury construed or applied any of the complained-of-
remarks in an objectionable fashion.’” (Id. at pp. 1202–1203.)
Stating facts during closing argument that are not in evidence, “is ‘clearly
. . . misconduct’ [citation], because such statements ‘tend[] to make the prosecutor his
own witness — offering unsworn testimony not subject to cross-examination. It has been
recognized that such testimony, “although worthless as a matter of law, can be
‘dynamite’ to the jury because of the special regard the jury has for the prosecutor,
thereby effectively circumventing the rules of evidence.”’” (People v. Hill, supra, 17
Cal.4th at pp. 827–828.) “‘Statements of supposed facts not in evidence . . . are a highly
prejudicial form of misconduct, and a frequent basis for reversal.’” (Ibid.)
A prosecutor may also not mischaracterize the facts admitted during a trial.
(People v. Hill, supra, 17 Cal.4th at p. 823 [“‘A prosecutor’s ‘vigorous’ presentation of
facts favorable to his or her side ‘does not excuse either deliberate or mistaken
15
misstatements of fact’”].) However, “‘a prosecutor is given wide latitude during
argument. The argument may be vigorous as long as it amounts to fair comment on the
evidence, which can include reasonable inferences, or deductions to be drawn therefrom.
[Citations.] It is also clear that counsel during summation may state matters not in
evidence, but which are common knowledge or are illustrations drawn from common
experience, history or literature.’” (People v. Wharton (1991) 53 Cal.3d 522, 567.)
2. Trial Court Proceedings
On the night of the shooting, Detective Paul Carvo found a single expended
shell casing where Mario had been shot. At trial, Carvo explained that when a revolver
type handgun is fired, the shell casing remains in the weapon, whereas with a
semiautomatic handgun the shell casing is ejected. The parties stipulated that Carvo had
found a .45 caliber shell casing. Photographs of the recovered shell casing and the crime
scene were admitted into evidence.
On the day following the shooting, Detective Andrew Birozy searched
Palacios’ home and found within a dresser drawer “a large caliber handgun magazine that
was without any bullets.” At trial, Birozy explained that a magazine is what holds the
bullets in a semiautomatic handgun (as opposed to a revolver). Photographs of the
recovered gun magazine were admitted into evidence.
Palacios testified he owned a .38 revolver that he had kept in his vehicle,
but the vehicle had been stolen about a week before the shooting. Palacios said the
empty magazine in his dresser drawer had been there a long time, and that he had found it
under the seat of a car he had bought. Palacios agreed the magazine was for use with a
semi-automatic gun. Palacios said he had no use for the magazine, but “simply just put
it” in his dresser drawer, and he did not know why he decided to keep it.
The prosecutor challenged this portion of Palacios’ testimony during the
initial closing argument:
16
“Physical evidence of the crime refutes the defendant’s account. What do
we find? A .45-caliber casing. We find Mario . . . shot in the chest. What is not found?
That semiautomatic firearm that supposedly fell to the ground. . . . [¶] . . . There’s no
gun. Why is there no gun? Because the gun man took it. . . .
“Physical evidence in the defendant’s dresser drawer at his residence.
What do you find? A large caliber handgun magazine for a semiautomatic firearm.
What’s not found? A semiautomatic firearm. Well, if you want to believe the defendant,
he found that magazine, what, in a car that he bought? And then he does what everybody
else does with handgun magazines that you have no use for. He just throws it in his sock
and underwear drawer. That’s a lie. That’s a magazine for a semiautomatic handgun and
there’s no firearm found there. Only the magazine. Because the gun man took it.”
Defense counsel replied during closing argument, stating:
“The empty magazine. You know, the People want to tell you that there is
this empty magazine, and they want you to hang your hat on the empty magazine that’s in
[Palacios’] room. They want to tell you, oh, he just found this empty magazine and threw
it in a drawer. That’s just crazy. Why? Because [the prosecutor] says it is. He doesn’t
get to tell you that. You know, he’s a mechanic. He goes through cars. He told you that
he bought and sold cars. He found stuff. He kept stuff. [¶] . . . [¶]
“You had all these officers on the stand over 75 years of law enforcement
experience. Over 75 years. And not a single person told you that that empty magazine
had anything to do with the evidence found at [the location of the shooting]. Why?
Because [the prosecutor] knows he has problems with this case and wants you to focus on
things that don’t matter. I would bet my keys to my house that if that empty magazine
was tied to the caliber at the [shooting] location, you would have heard about that. And
you didn’t.”
The prosecutor stated during rebuttal closing argument:
“Detective Birozy who found the magazine testified it was a large caliber
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magazine. It was a .45-caliber casing that was found at the scene. That’s not some trick.
It supports what other people say about the defendant previously carrying a gun. It
supports the fact that it’s a semiautomatic firearm that killed Mario . . . .”
Defense counsel objected: “Objection, misstates the evidence.” The trial
court asked whether the attorneys wanted to approach the court and held a sidebar
discussion off the record. Coming back on the record, the trial court stated that the
objection was “noted and overruled at this point.”
3. Analysis and Application
During rebuttal closing argument, the prosecutor stated that the magazine
found in Palacios’ home “was a large caliber magazine.” This fact was admitted into
evidence during the trial through the testimony of Officer Birozy. The prosecutor also
stated: “It was a .45-caliber casing that was found at the scene.” Detective Carvo had
testified he found the shell casing at the crime scene, and it was stipulated by the parties
that it was .45 caliber shell casing.
We hold the trial court did not abuse its discretion when it overruled
Palacio’s objection on the grounds that the prosecutor had misstated the evidence during
closing argument. The prosecutor accurately summarized the evidence about the shell
casing and the magazine and therefore did not misstate the evidence.
In this appeal, Palacios argues: “The prosecutor’s argument clearly implied
that the .45 caliber shell casing found at the scene of the shooting was the same type of
‘large caliber’ shell casing that would have been held in the magazine found in
appellant’s house.” (Italics added.)
Palacios did not object on these grounds (improper argument) during the
trial, so this claim has been forfeited for purposes of appeal. (See People v. Brown
(2003) 31 Cal.4th 518, 553 [to avoid forfeiture of a claim of prosecutorial misconduct, a
defendant generally “must make a timely objection, make known the basis of his
18
objection, and ask the trial court to admonish the jury,” italics added].)
In any event, the prosecutor appeared to make a logical inference based on
the evidence. That is, the recovered shell casing revealed Mario had likely been shot
with a semiautomatic firearm, and the magazine from Palacios’ bedroom reasonably
suggested that Palacios may have owned a semiautomatic firearm. Further, this evidence
also reasonably suggested that Palacios’ testimony—about owning a revolver and about
keeping a magazine in his drawer for no particular reason—was likely not credible. The
jury was allowed to either accept or reject the prosecutor’s interpretation of the evidence.
(See People v. Cole, supra, 33 Cal.4th at p. 1203 [generally, a prosecutor has “‘wide
latitude to discuss and draw inferences from the evidence at trial,’ and whether ‘the
inferences the prosecutor draws are reasonable is for the jury to decide’”].)
In sum, we find no evidence to support Palacios’ claim of prosecutorial
misconduct regarding the firearm shell casing and the magazine.
Palacios cites several opinions for the proposition that: “It is misconduct
for a prosecutor to suggest a connection between the defendant and the crime where the
connection was necessarily based on evidence not admitted at trial.” (See, e.g., People v.
Evans (1952) 39 Cal.2d 242, 251 [a knife used to attack a girl was not in evidence, “yet
the district attorney referred to defendant’s knife as being the same type of knife carried
by the girl’s attacker”].)
But the opinions cited by Palacios are inapposite because in this case there
was testimonial evidence admitted at trial about the discovery of the shell casing and the
magazine. Further, photographs of both of those items were admitted into evidence.
C. Ineffective Assistance of Counsel Claim
Palacios claims his trial counsel provided ineffective assistance by failing
to object during the prosecutor’s appeals to the jury’s emotions during the prosecutor’s
initial closing argument. We disagree.
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The standard of review for an ineffective assistance of counsel claim is well
settled. A criminal defendant has a federal and state constitutional right to the effective
assistance of counsel. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) To
establish a claim of ineffective assistance of counsel, a defendant must establish both
(1) that counsel’s representation fell below an objective standard of reasonableness, and
(2) that it is reasonably probable that, but for counsel’s error, the result of the proceeding
would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688,
694-695; People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
“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.” (Strickland v. Washington, supra, 466 U.S. at p. 689.)
In general, “deciding whether to object is inherently tactical, and the failure
to object will rarely establish ineffective assistance.” (People v. Hillhouse (2002) 27
Cal.4th 469, 502; see, e.g., People v. Dickey (2005) 35 Cal.4th 884, 914 [“the mere
failure to object rarely rises to a level implicating one’s constitutional right to effective
legal counsel”]; People v. Boyette (2002) 29 Cal.4th 381, 433 [same].)
“We have repeatedly stated that it is ‘“improper to make arguments to the
jury that give it the impression that ‘emotion may reign over reason,’ and to present
‘irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its
proper role, or invites an irrational, purely subjective response.’”’” (People v. Sanchez
(2019) 7 Cal.5th 14, 66.) Further, “‘it is misconduct to appeal to the jury to view the
crime through the eyes of the victim.’” (Ibid.)
The prosecutor stated during the initial closing argument:
“When this case started, I heard the defense say something about the
defendant’s American dream. The first thing that I thought about when I heard that
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statement was what about Mario[’s] . . . American dream? What about any dream that he
had had?
“Because he was a young man. He was 32 years old. He was living here in
that apartment in Tustin with his wife. He had three young beautiful children. An infant,
a nine-year-old, and a ten-year-old. He was working two jobs supporting his family. He
was doing pretty well living in Orange County, California.
“And what about his dream? Is that the way his dreams deserved to end?
Lying at the apartment complex next door with a bullet that had ripped through his heart
and his lung at the hands of the defendant, seen by his wife and daughter? Is that the way
his American dream ended over a dispute of $60? The answer to the question is yes.
That is exactly why this happened.”
During defense counsel’s closing argument, she stated:
“You know what I know? I know that Mario . . . did die from a shotgun
wound on that day. You know what I know? I know that he has a family. That’s not lost
on me. It’s not lost on me that he has kids. It’s not lost on me that the mother of his
children also lost him. Loss is always hard. It’s tragic. It hurts. You miss that person
year after year after year, and it doesn’t get easier.
“But that’s not why you’re here. The reason each and every single one of
you was selected on this jury is because we talked about that. Each one of you knew that
moment was going to happen in this courtroom. You all knew that someone was going to
be hurting. But your job isn’t to somehow evaluate the value of someone’s loss. That’s
not your job. Your job is justice and truth. And the People have not provided that to you.
In fact, quite the opposite. And that’s what should be insulting.”
Here, the prosecutor’s statements about Mario’s dreams and family were
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5
objectionable. (See People v. Stansbury (1993) 4 Cal.4th 1017, 1057 [“an appeal for
sympathy for the victim is out of place during an objective determination of guilt”],
overruled on other grounds by Stansbury v. California (1994) 511 U.S. 318.)
However, based on this bare appellate record, Palacios has not shown that
counsel’s failure to object established ineffective assistance. Given counsel’s statements
addressing the loss of the victim during her closing argument, and a comment regarding
the “American dream” of Palacios, which was apparently made at some point earlier in
the trial, there may have been strategic or tactical reasons for defense counsel not to
object to the prosecutor’s comments about Mario and his family. (See People v. Pope
(1979) 23 Cal.3d 412, 426 [claim of ineffective assistance of counsel based on facts
outside of record more properly alleged by petition for writ of habeas corpus].)
In short, Palacios has not established that his trial counsel’s performance
fell below an objective standard of reasonableness. (See Strickland v. Washington, supra,
466 U.S. at pp. 686–688, 694–695; People v. Hillhouse, supra, 27 Cal.4th at p. 502 [“the
failure to object will rarely establish ineffective assistance”].) Thus, Palacios has failed
to establish ineffective assistance of trial counsel on direct appeal.
Alternatively, we also find Palacios was not prejudiced. The prosecutor’s
comments about Mario and his family were brief, he never returned to this line of
argument, and the court just prior to closing arguments instructed the jury: “Nothing that
the attorneys say is evidence. In their opening statements and closing arguments, the
attorneys discuss the case, but their remarks are not evidence.” (CALCRIM No. 222.)
Had defense counsel objected to the prosecutor’s improper statements, and had that
objection been sustained, the trial court likely would have admonished the jury by
5
We caution the Orange County District Attorney to generally refrain from appealing to
a jury’s sympathies or passions. (See People v. Fields (1983) 35 Cal.3d 329, 362 [“It has
long been settled that appeals to the sympathy or passions of the jury are inappropriate at
the guilt phase of a criminal trial”].)
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essentially repeating this same jury instruction.
D. Cumulative Prejudice Claim
Palacios contends the cumulative prejudice of the alleged foregoing alleged
errors compels reversal of his convictions. We disagree.
“In theory, the aggregate prejudice from several different errors occurring
at trial could require reversal even if no single error was prejudicial by itself.” (In re
Reno (2012) 55 Cal.4th 428, 483, superseded by statute on other grounds as stated in In
re Friend (2021) 11 Cal.5th 720, 728.) However, the rejection of each of a defendant’s
individual claims “cannot logically be used to support a cumulative error claim [where]
we have already found there was no error to cumulate.” (In re Reno, at p. 483.)
Here, we found Palacios was not prejudiced by the trial court’s error in
refusing to instruct the jury on the lesser included offense, and we did not find the other
asserted claims were meritorious.
Based on our review of the entire trial record, we do not find cumulative
prejudice sufficient to undermine outcome of the trial. This is because of the
considerable weight of the prosecution’s evidence, the comparative weakness of the
defense evidence, and the significance of the jury’s true finding as to Palacios’ intentional
6
use of a firearm, as we have previously analyzed. (See Discussion pt. II, A.3., ante.)
6
We note that our analysis of the evidence in this case also included a review of all of the
trial exhibits, which we had transmitted to this court from the superior court on our own
motion. (See Cal. Rules of Court, rule 8.224(d).)
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III
DISPOSITION
The judgment is affirmed.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
DELANEY, J.
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