People v. Mehlenbacher CA4/1 ( 2024 )

Filed 10/29/24 P. v. Mehlenbacher CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081197
Plaintiff and Respondent, (Super. Ct. No. SCD288552)
v.
JOSEPH MEHLENBACHER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Francis M. Devaney, Judge. Affirmed.
Cynthia Grimm, 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, Eric A.
Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and
Respondent.
I.
INTRODUCTION
Joseph Mehlenbacher shot Kenneth C. in the head for being noisy
outside an apartment where a friend allowed Mehlenbacher and
Mehlenbacher’s girlfriend to stay. A jury found Mehlenbacher guilty of first
degree murder (Pen. Code, § 187, subd. (a)) and found true the allegation he
personally and intentionally discharged a firearm, causing death (id.,
§ 12022.53, subd. (d)). At sentencing the trial court struck the firearm
enhancement and sentenced Mehlenbacher to 25 years to life in prison.
Mehlenbacher contends the trial court prejudicially erred when it
(1) excluded evidence of Kenneth’s character for violence; (2) admitted items
from Mehlenbacher’s social media accounts, including two short videos
showing law enforcement in pursuit of him and text messages to his
grandmother; (3) admitted (a) video showing officers carrying Kenneth down
the stairs and performing life-saving measures, (b) a photograph of Kenneth
when he was alive, and (c) two autopsy photographs; (4) excluded evidence
that someone shot Mehlenbacher six months prior and denied
Mehlenbacher’s related pinpoint instructions; (5) failed to instruct the jury on
the lesser included offense of involuntary manslaughter; and (6) failed to
assist the jury during its deliberations with a proper response to a jury note,
while also responding to a jury question without notice to, and in the absence
of, Mehlenbacher and defense counsel. Mehlenbacher also asserts instances
of prosecutorial error related to the prosecutor’s opening statement and
closing argument. Also, to the extent any issues are forfeited based on his
defense counsel’s failure to object at trial, Mehlenbacher claims he received
ineffective assistance of counsel. Finally, he asserts cumulative error
2
resulted in an unfair trial. We find no prejudicial error and affirm the
judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2020, Mehlenbacher (then 18 years old) and his girlfriend
were staying in Bobby P.’s apartment. The apartment was located above a
store on a floor with a few apartments. The living floor was small, noisy,
with thin walls making hallway disturbances easy to hear. The complex was
not secure and homeless people slept in the building. Kenneth loitered inside
the building, consumed drugs there, and often cussed, yelled, and screamed.
Around 10:30 p.m. on December 26, Bobby got home. As he stood at the
base of the stairwell, he heard Mehlenbacher arguing with someone, telling
the other person to shut up and “[s]top making so much noise.” Bobby rushed
up the stairs. When he got to the top of the stairs, he saw Mehlenbacher
telling Kenneth to stop making noise. Mehlenbacher had a gun in his right
hand pointing down next to his leg and moving it from side to side. Bobby
described Mehlenbacher as very upset. Bobby did not hear Kenneth say
anything and described him as staring blankly and pacing from side to side.
He claimed Kenneth was not acting aggressively and appeared unarmed.
Bobby told Mehlenbacher to get into the apartment. Bobby then heard
Kenneth say, “You’re not going to shoot.” After Bobby or Mehlenbacher
closed the front door, Bobby told Mehlenbacher not to open it and then went
to the bedroom to drop off some items he carried, while Mehlenbacher paced
around the living room with the gun in his hand. As Bobby walked into the
living room from the bedroom, he heard what sounded like a door slamming
across the hall. Mehlenbacher “went off” when this occurred.
3
Bobby watched Mehlenbacher open the front door, and heard him say,
“I’m going to shoot you.” He saw Mehlenbacher pull the slide back on the
gun, raise it to shoulder level with his right hand, fire it, and close the door.1
Mehlenbacher then lowered the gun and slammed the door shut. When
Bobby asked Mehlenbacher if he shot Kenneth, Mehlenbacher responded,
“Yeah.” Bobby told Mehlenbacher to collect his belongings and leave the
apartment. In a matter of minutes, Mehlenbacher and his girlfriend left.
Bobby then walked outside his apartment and saw Kenneth lying on
the floor with a bloody gunshot wound to his head and a knife next to him
that Bobby had not seen earlier. Before police arrived, Mehlenbacher
contacted Bobby using an internet messaging application. He apologized for
putting Bobby in that situation, asked him to get the “shell” out of the living
room and said, “Don’t say anything.”
When police arrived, they found Kenneth on his back with a bullet
wound to his head, a 12-inch knife by his foot, and a skateboard nearby.
Officers carried Kenneth downstairs and attempted life-saving measures
until the paramedics arrived. An officer could not detect a pulse but saw
Kenneth was still breathing.
Less than two hours after Mehlenbacher left the crime scene with his
girlfriend, a border patrol agent saw Mehlenbacher’s white Honda moving
erratically on the highway. The agent activated the lights and siren of his
unmarked K9 truck and attempted to pull over the Honda. However, the
agent lost sight of the car as it accelerated to over 100 miles per hour. A
1 At the preliminary hearing, Bobby said he was looking at
Mehlenbacher when he fired the gun and did not hear Mehlenbacher say
anything beforehand. Bobby never told law enforcement he heard
Mehlenbacher say he was going to shoot Kenneth, explaining he gave few
details because he was trying to give “the bigger picture” regarding what
occurred.
4
second border patrol agent driving a marked car activated his lights and
siren and chased Mehlenbacher’s Honda. After a high-speed chase reaching
speeds up to 120 miles per hour, the second agent called off the pursuit
because the Honda began to endanger other vehicles on the road. Neither
agent knew who was in the car nor received any alerts regarding it.
Police disseminated multiple be on the lookout (BOLO) alerts for
Mehlenbacher. Posts of a BOLO were found on one of Mehlenbacher’s social
media accounts with a written overlay that said, “Bitch stop playing #free
me!”2 A graphic was posted from Mehlenbacher’s account that said, in
vibrant pink writing, “I told y[’]all I[’]m really a shooter stop playin[’]!”
Mehlenbacher’s grandmother later reached out to law enforcement and sent
screen shots of text messages she received from Mehlenbacher. The
grandmother asked Mehlenbacher to turn himself in and contact the public
defender’s office. Mehlenbacher stated, among other things, he would not
turn himself in because “It[’]s a fuckin[’] homicide 187 murder one to the
fucking head[,] Gram.”
A few days later, based on a tip from a confidential informant, police
found Mehlenbacher in an abandoned house and arrested him. The
confidential informant turned Mehlenbacher’s cell phone over to law
enforcement.
Police searched Bobby’s apartment and found a shell casing inside. The
shell casing’s location suggested to police that Mehlenbacher was just inside
the door frame when he fired his gun. Ninety-seven percent of the DNA on
the shell casing belonged to Mehlenbacher. Seventy-six percent of the DNA
2 The record is inconsistent regarding the capitalization and punctuation
used in the text messages and social media posts referenced in this opinion.
For ease of reading, we use standard capitalization, punctuation, and fonts.
5
on the knife handle belonged to Kenneth. An autopsy revealed Kenneth died
from a perforating gunshot wound to the head. The lack of an abrasion mark,
stippling, or soot around the entrance wound meant the gun was at least
several feet away when fired.
III.
DISCUSSION
A. Alleged Evidentiary Errors
Mehlenbacher contends the trial court erred by excluding evidence of
Kenneth’s prior behavior. He also claims the court erred admitting evidence
of statements or videos he made in his social media accounts, namely,
(1) text messages exchanged between his grandmother and him, (2) BOLO
alerts, (3) videos of him in flight from law enforcement, and (4) a video of him
holding a gun.
After discussing general legal principles applicable to Mehlenbacher’s
evidentiary error claims, we analyze each one, starting first with its factual
context.
1. General Legal Principles
Relevant evidence is evidence “having any tendency in reason to prove
or disprove any disputed fact that is of consequence to the determination of
the action.” (Evid. Code, § 210.)3 The relevance standard is “very broad.”
(People v. Scheid (1997) 16 Cal.4th 1, 16.) “ ‘A trial court has “considerable
discretion” in determining the relevance of evidence.’ ” (People v. Jones
(2017) 3 Cal.5th 583, 609.) “The court, however, has no discretion to admit
irrelevant evidence.” (People v. Babbitt (1988) 45 Cal.3d 660, 681.)
Even if evidence is relevant, section 352 provides a “court in its
discretion may exclude evidence if its probative value is substantially
3 Undesignated statutory references are to the Evidence Code.
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outweighed by the probability that its admission will . . . (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” “The term ‘prejudice,’ within the meaning
of . . . section 352, is not simply damage to the defense that naturally flows
from relevant and highly probative evidence, but is instead an emotional
reaction that inflames the jurors’ emotions, motivating them to have a bias
against, or to prejudge, an individual based on evidence that has only slight
probative value on the issues. [Citations.] Under that statute, evidence is
substantially more prejudicial than probative if it poses an intolerable risk to
the fairness of the proceedings or the reliability of the outcome and renders
the defendant’s trial fundamentally unfair.” (People v. Chavez (2018)
22 Cal.App.5th 663, 702.)
The abuse of discretion standard typically applies to review of a ruling
on the admissibility of evidence. (People v. Alvarez (1996) 14 Cal.4th 155,
201.) We will not reverse a court’s ruling on such matters unless it is shown
“ ‘the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’ ”
(People v. Brown (2003) 31 Cal.4th 518, 534.) “ ‘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. Richardson (2008) 43 Cal.4th
959, 1001, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)
Additionally, a reviewing court cannot grant relief on a claim that
evidence was erroneously admitted unless a timely objection was made “and
so stated as to make clear the specific ground of the objection or motion.”
(§ 353, subd. (a).) “What is important is that the objection fairly inform the
7
trial court, as well as the party offering the evidence, of the specific reason or
reasons the objecting party believes the evidence should be excluded, so the
party offering the evidence can respond appropriately and the court can make
a fully informed ruling.” (People v. Partida (2005) 37 Cal.4th 428, 435.)
To the extent defense counsel forfeited any claims raised in this appeal
by failing to properly object at trial, Mehlenbacher can argue he received
ineffective assistance of counsel. To prevail on a claim of ineffective
assistance of counsel, he must show (1) deficient performance by his counsel
and (2) resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668,
687; People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) While we
presume counsel’s performance fell within a wide range of professional
competence and sound trial strategy, counsel is deficient if there is no
conceivable tactical purpose for the failure to object. (Centeno, at
pp. 674–675.)
Because the decision whether to object to a prosecutor’s comments
during closing argument is highly tactical, “ ‘a mere failure to object to
evidence or argument seldom establishes counsel’s incompetence.’ ” (Centeno,
supra, 60 Cal.4th at p. 675.) “On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus proceeding.”
(People v. Mai (2013) 57 Cal.4th 986, 1009.)
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2. No error excluding evidence of Kenneth’s prior behavior.
a. Background
Mehlenbacher moved under section 1103, subdivision (a), to admit
Kenneth’s character for violence. The motion proffered evidence of two
incidents involving Kenneth: one in February 2019 and the other in
June 2020.
In February 2019, Ronald W. claimed Kenneth made a sexual
orientation related slur to him as Kenneth sat in front of a liquor store with
his pit bull. Kenneth jumped up from the ground and started hitting Ronald
while Kenneth’s dog continually bit Ronald. Ronald was taken to the hospital
for his injuries and police arrested Kenneth for assault with a deadly weapon
(the dog). According to the prosecutor, Kenneth said Ronald placed Kenneth
in a headlock, causing the dog to attack. One witness claimed Ronald
prevented Kenneth from standing up; another described mutual combat; and
a third said Ronald fought for his life as the dog attacked, and Kenneth
continued to beat Ronald.
In June 2020, Jitendra B., a motel manager, confronted Kenneth after
Kenneth urinated outside a motel window. During an ensuing argument,
Kenneth punched Jitendra in his left eye, causing Jitendra’s glasses to fall to
the ground. When Jitendra went inside and got a baseball bat, Kenneth
stomped on Jitendra’s glasses. Police cited Kenneth for simple battery and
vandalism under $400.
The prosecutor moved to exclude the proffered evidence, arguing:
(1) unless Mehlenbacher testified to the contrary, no evidence existed
showing Mehlenbacher believed Kenneth posed a threat to him; and (2) the
other incidents would cause an undue consumption of time based on
conflicting witnesses and the lack of similarity between those cases and the
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current case. He further argued that if the court permitted Mehlenbacher to
introduce any evidence under section 1103, then the prosecution would
introduce evidence showing Mehlenbacher’s character for violence under
section 1103, subdivision (b). This evidence included videos and audio clips
Mehlenbacher posted to social media exhibiting a character for violence and
claims by Mehlenbacher’s mother that Mehlenbacher has been violent since a
young age.
The court excluded Mehlenbacher’s proffered evidence under
section 352 because the incidents were dissimilar to the facts of the present
case, would consume too much time, distract and confuse the jury, and be
unfair to the prosecution due to the fact Kenneth was no longer alive to tell
his side of what occurred. It also excluded the prosecutor’s proffered evidence
against Mehlenbacher.
Mehlenbacher did not testify at trial. The court instructed the jury
with, among other instructions: first or second degree murder with malice
aforethought; first degree murder; provocation: effect on degree of murder;
justifiable homicide: self-defense; voluntary manslaughter: heat of passion;
and voluntary manslaughter: imperfect self-defense. (CALCRIM Nos. 520,
521, 522, 505, 570, 571.) The prosecutor argued Mehlenbacher was guilty of
first degree murder, or, at the very least, second degree murder because
Mehlenbacher acted with express or implied malice. Defense counsel
admitted Mehlenbacher shot Kenneth, but argued the prosecution had failed
to prove the shooting was not justified in self-defense, or the shooting was not
second degree murder with implied malice, or voluntary manslaughter under
the theories of imperfect self-defense or heat of passion.
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b. Analysis
Mehlenbacher contends the trial court prejudicially erred by excluding
his proffered evidence of Kenneth’s character for violence. The People argue
the court properly excluded it under section 352. We agree with the People.
Section 1101, subdivision (a), prohibits the admission of evidence of a
person’s character to prove his conduct on a specified occasion. Section 1103,
subdivision (a), provides an exception to that rule, stating, “In a criminal
action, evidence of the character . . . of the victim of the crime for which the
defendant is being prosecuted is not made inadmissible by section 1101 if the
evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in
conformity with the character or trait of character.” Under section 1103,
subdivision (b), when a court admits evidence of a victim’s character for
violence, the prosecutor may in turn offer evidence of the defendant’s
character for violence.
“In other words, if . . . a defendant offers evidence to establish that the
victim was a violent person, thereby inviting the jury to infer that the victim
acted violently during the events in question, then the prosecution is
permitted to introduce evidence demonstrating that . . . the defendant was a
violent person, from which the jury might infer it was the defendant who
acted violently.” (People v. Fuiava (2012) 53 Cal.4th 622, 696.) For the
purposes of proving self-defense, whether the defendant was aware of the
victim’s propensity for violence is immaterial because such evidence
“ ‘nevertheless tends to show that the victim was probably the aggressor.’ ”
(People v. DelRio (2020) 54 Cal.App.5th 47, 55.) The admission of a victim’s
character evidence pursuant to section 1103 “is subject to the dictates
of . . . section 352.” (People v. Wright (1985) 39 Cal.3d 576, 587.)
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The trial court reasonably expressed concerns about undue
consumption of time and potential juror confusion if it allowed evidence
under section 1103. Defense counsel had Ronald and Jitendra, the two
victims, under subpoena. He also had the officers from the Ronald incident
under subpoena and knew the location of two other witnesses to the incident.
The Ronald incident entailed the defense presenting evidence from Ronald, at
least two officers, and the witness who claimed Ronald fought for his life. In
turn, the prosecution would likely present the witnesses who claimed Ronald
prevented Kenneth from standing up and who described mutual combat. The
court appropriately decided conducting such a trial within a trial would
consume too much time while also creating confusion regarding the issues.
Additionally, if the jury heard testimony about Kenneth’s aggressive
and violent character, the People would then be permitted to present the
evidence they proposed regarding Mehlenbacher’s aggressive and violent
character. (§ 1103, subd. (b).) This evidence included videos and audio clips
Mehlenbacher posted to social media exhibiting a character for violence days
before the shooting, including recordings of him holding numerous handguns,
bragging about successfully committing armed robberies, and threatening his
social media followers and rivals with gun violence. Mehlenbacher’s mother
also told investigators her son was violent from a very young age with her
claiming, among other things, he attempted to strangle her, bit her, pushed
her down the stairs, threatened her with box cutters, and pulled a knife on
her. This evidence risked a significant and undue consumption of time
regarding matters unrelated to the shooting.4
4 We understand that the trial court would not necessarily allow all the
evidence we describe. Our conclusion about undue consumption of time
remains, however.
12
In sum, the trial court did not abuse its discretion by excluding
section 1103 evidence. Given this conclusion, we need not address
Mehlenbacher’s argument the asserted evidentiary error was prejudicial
except to reject his contention that barring this evidence from the trial
amounted to a constitutional violation. (See, e.g., People v. Abilez (2007)
41 Cal.4th 472, 503 [“application of the ordinary rules of evidence under state
law does not violate a criminal defendant’s federal constitutional right to
present a defense”].)
3. Mehlenbacher forfeited any error admitting the text messages with
his grandmother and no ineffective assistance of counsel is shown.
a. Background
Mehlenbacher’s grandmother worked with law enforcement to bring
her grandson safely into custody and sent screen shots of text messages she
had received from him to law enforcement. After the grandmother told
Mehlenbacher he should call the public defender’s office to negotiate his
surrender, Mehlenbacher texted his grandmother, among other things, he
would continue to strive for his freedom and that “it[’]s a fuckin[’] homicide
187 murder one to the fucking head[,] Gram.” The court ruled the text
exchange between Mehlenbacher and his grandmother was “clearly
admissible.” At trial, the court disagreed that grandmother’s request for
Mehlenbacher to turn himself in constituted inadmissible character evidence,
it overruled defense counsel’s hearsay and lack of foundation objections, and
admitted into evidence four pages of text message screenshots grandmother
emailed to police from her phone.
The court excluded any evidence from Mehlenbacher’s cell phone
because the prosecution failed to timely disclose to the defense that a
confidential informant notified law enforcement about Mehlenbacher’s
location after the shooting and gave them Mehlenbacher’s cell phone. At
13
closing, the prosecutor argued Mehlenbacher’s text messages retrieved from
his grandmother’s cell phone showed his consciousness of guilt and served as
an acknowledgment he committed first degree murder, not a lesser offense.
b. Analysis
Mehlenbacher asserts the text messages should have been excluded
because they were inflammatory under section 352, and his response to his
grandmother’s request to turn himself in and state of mind after the shooting
were irrelevant to any disputed issue. He also claims the text messages
should have been excluded to prevent the jury from improperly using them as
evidence showing his lack of remorse. Finally, he argues anything from his
grandmother’s phone should have been part of the discovery sanction that
resulted in the court excluding evidence from his phone and instructing the
jury about “untimely disclosure of evidence.”
The People claim Mehlenbacher forfeited his claims because defense
counsel never specifically objected to admission of the text messages on the
ground they were irrelevant, inflammatory, could be used to show lack of
remorse, or because they should have been included as part of the discovery
sanction. Mehlenbacher argues no forfeiture occurred because any further
objection would have been futile based on the court’s pretrial ruling finding
the text messages “clearly admissible.”
We disagree with Mehlenbacher’s contention that any further objection
would have been futile. In its pretrial ruling, the court found the text
messages “clearly admissible” in response to the People’s argument the
messages contained admissions regarding the crime. Defense counsel did not
raise the objections he now argues. As a result, the court had no opportunity
to rule on those objections, and the claims are forfeited on appeal. (§ 353,
subd. (a); People v. Alexander (2010) 49 Cal.4th 846, 905.)
14
Mehlenbacher argues an objection on hearsay grounds allows a
defendant to argue the evidence is irrelevant on appeal, citing People v.
Arcega (1982) 32 Cal.3d 504, 526–529; People v. Johnson (1980) 26 Cal.3d
557, 579; and People v. Scalzi (1981) 126 Cal.App.3d 901, 907. These cases
are inapposite. They address whether hearsay evidence may be relevant for
a nonhearsay purpose and do not address whether a stated hearsay objection
preserves an unstated relevancy objection on appeal.
Mehlenbacher also notes he objected to the text messages as character
evidence and claims this objection preserved a section 352 objection on
appeal, citing People v. Carpenter (1999) 21 Cal.4th 1016, 1052; People v.
Clark (1992) 3 Cal.4th 41, 123–124; and People v. Roscoe (1985)
168 Cal.App.3d 1093, 1100. We disagree. In Carpenter, the appellant
invoked section 352 at trial and argued the proposed evidence showed he was
a “ ‘bad person.’ ” (Carpenter, at p. 1053.) The appellate court found the
objection sufficiently clear to preserve a section 1101 objection. (Ibid.) The
same situation occurred in Clark. (Clark, at pp. 123–124.) Moreover, Roscoe
provides that a party’s failure to refer specifically to section 352 as a basis for
objection does not preclude a trial court from exercising its discretion sua
sponte to exclude proffered evidence on that ground. (Roscoe, at p. 1100 &
fn. 5.) This case is inapplicable because it does not hold an objection under
section 1101 preserves a section 352 objection.
Mehlenbacher also contends he did not forfeit his argument that text
messages from his grandmother’s phone should have been excluded as part of
the discovery sanction. He states forfeiture of this argument is inapplicable
because his counsel raised numerous other objections to the text messages.
15
We reject this position because it is contrary to section 3535 and
Mehlenbacher cited no authority to support this proposition.
Accordingly, since Mehlenbacher forfeited the above-referenced
objections, his only cognizable claim on appeal is whether he received
ineffective assistance of counsel based on his counsel’s failure to object to the
text messages on the grounds he now argues. We perceive no deficient
performance by Mehlenbacher’s counsel. The text messages from
Mehlenbacher to his grandmother were statements of a party opponent
showing he shot Kenneth in the head. (§ 1220) The communications were
also relevant for the nonhearsay purpose of demonstrating consciousness of
guilt (i.e., that he had done something wrong). (People v. Curl (2009)
46 Cal.4th 339, 362.)
Moreover, while Mehlenbacher is correct that lack of remorse is
irrelevant at the guilt phase unless a defendant opens the door to this matter
(People v. Riggs (2008) 44 Cal.4th 248, 301), the prosecutor never argued the
text messages were relevant to this issue. We conclude defense counsel did
not perform deficiently by failing to object to the admission of the text
messages. Accordingly, there is no reasonable probability, absent any
deficient performance, the trial’s result would have been more favorable to
Mehlenbacher. (People v. Frye (1998) 18 Cal.4th 894, 979.)
5 Section 353, subdivision (a) provides in relevant part, that a judgment
will not be reversed because of the erroneous admission of evidence unless
“[t]here appears of record an objection to or a motion to exclude or to strike
the evidence that was timely made and so stated as to make clear the specific
ground of the objection or motion.”
16
4. No error admitting Mehlenbacher’s social media posts regarding
the BOLO Alerts.
a. Background
After the shooting, police disseminated multiple BOLO alerts for
Mehlenbacher. Posts of a BOLO, People’s exhibit 21, were found on
Mehlenbacher’s social media account with an overlay written on it saying,
“Bitch stop playing #free me!”6 Once comments arrived on that post, a
graphic in bright pink writing was posted from Mehlenbacher’s social media
account that said, “I told y[’]all I[’]m really a shooter stop playin[’]!” The
court ruled Mehlenbacher’s “shooter” post admissible as “an admission of
sorts” and his “free me” statement on the BOLO admissible as “an odd way of
bragging about what he did.”
During closing argument, the prosecutor briefly argued Mehlenbacher’s
“shooter” comment revealed Mehlenbacher’s intent to kill Kenneth. The
prosecutor made a passing reference to Mehlenbacher’s “free me” statement
at the very end of his closing argument suggesting Mehlenbacher wanted
jurors to free him, but they should not because he had committed first degree
murder. Defense counsel argued Mehlenbacher posted the “shooter”
comment because he is 18 years old, wanted attention, and knew he was
wanted for murder. The attorney also stated the evidence did not
demonstrate Mehlenbacher knew about the right to self-defense or the
distinction between murder and homicide.
b. Analysis
Mehlenbacher asserts the trial court erred when it admitted the two
social media posts. He claims his “bragging” or asking to be “free” had no
relevance to any issue before the jury. He also contends the
6 The People subpoenaed the social media company to obtain
Mehlenbacher’s posts.
17
after-the-fact postings had no relevance to his state of mind when the
shooting occurred and were unduly prejudicial. The People respond that
defense counsel did not preserve these issues because he failed to object to
this evidence in the trial court. We agree. Defense counsel objected to a
portion of the “free me” post where another individual posted “free pimp” and
requested the court direct the prosecutor to remove this comment. The court
agreed. However, defense counsel never objected to admission of the “free
me” statement either before or during trial. Similarly, defense counsel did
not object to the “shooter” statement before or during trial. Mehlenbacher
responds that his pretrial motion adequately preserved the issues and
further objection would have been futile.
To preserve a challenge to the admission of evidence for appeal, a party
must follow the guidelines set out in section 353. This section prevents a
reversal for the improper admission of evidence unless there is a clear record
of a timely objection, or motion to exclude or strike the evidence, specifying
the exact basis for the objection or motion. (People v. Morris (1991) 53 Cal.3d
152, 187 (Morris).) This requirement is crucial because a well-grounded
objection to specific evidence helps prevent mistakes. (Ibid.) It gives the trial
court the opportunity to either exclude the evidence or limit its admission to
avoid potential prejudice. (Id. at p. 188.) This procedure also allows the
party presenting the evidence to provide additional foundation, adjust the
offer of proof, or take other actions to reduce the likelihood of reversal. (Ibid.)
In his pretrial motion, defense counsel asked the court to exclude any
evidence of five specific uncharged acts (social media posts), arguing they
were irrelevant and inadmissible under sections 352 and 1101. The “free me”
and “shooter” postings were not among the five postings at issue in the
motion and are not even mentioned elsewhere in that brief. Thus,
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Mehlenbacher’s motion in limine was insufficient to preserve any objection to
these messages. (Morris, supra, 53 Cal.3d at pp. 189–190.)
We reject Mehlenbacher’s alternate contention his counsel rendered
ineffective assistance due to counsel’s failure to object to admitting these
postings. A party claiming ineffective assistance of counsel bears the burden
of showing both deficient performance under an objective standard of
professional reasonableness and prejudice under a test of reasonable
probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557,
610–611 (Gurule).) When an ineffective assistance claim can be resolved
solely based on lack of prejudice, it is unnecessary to determine whether
counsel’s performance was objectively deficient. (People v. Hester (2000)
22 Cal.4th 290, 297 (Hester).)
Assuming, without deciding, defense counsel rendered ineffective
assistance by failing to object to admission of the two postings, the assumed
error was not prejudicial even under the stricter standard under Chapman v.
California (1967) 386 U.S. 18 (Chapman). “ ‘The beyond-a-reasonable-doubt
standard of Chapman “requir[es] the beneficiary of a [federal] constitutional
error to prove beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” [Citation.] “To say that an error did not
contribute to the ensuing verdict is . . . to find that error unimportant in
relation to everything else the jury considered on the issue in question, as
revealed in the record.” [Citation.] Thus, the focus is on what the jury
actually decided and whether the error might have tainted its decision. That
is to say, the issue is “whether the . . . verdict actually rendered in this trial
was surely unattributable to the error.” ’ ” (People v. Pearson (2013)
56 Cal.4th 393, 463.)
19
Here, the court admitted the “shooter” and “free me” statements as
admissions. Under section 1220, evidence of a statement is not made
inadmissible by the hearsay rule when offered against the declarant in an
action to which the declarant is a party. (People v. Rodriguez (2014)
58 Cal.4th 587, 637.) Generally, any relevant “statement” of a party is
admissible against that party, irrespective of whether it qualifies as a
confession or admission. (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
Here, Mehlenbacher was the declarant, the “shooter” and “free me”
statements were offered against him, and he was a party to the action.
Accordingly, both statements were admissible regardless of whether the
statements met the definition of a confession or admission. Additionally,
both statements were relevant as to Mehlenbacher’s consciousness of guilt
and neither statement unduly prejudiced Mehlenbacher because
Mehlenbacher’s identity as the shooter was not a contested issue at trial.
Under these circumstances, defense counsel did not render ineffective
assistance by failing to object to admission of these statements.
5. No error admitting videos of Mehlenbacher in flight.
a. Background
Two videos existed on Mehlenbacher’s social media account of him or
another person in his car filming the border patrol vehicle, lights flashing,
chasing Mehlenbacher’s Honda after the shooting. The prosecutor argued
these videos were relevant to show consciousness of guilt. Defense counsel
argued the videos were irrelevant because Mehlenbacher was not charged
with evading law enforcement and the content of the videos merely echoed
the testimony a border patrol agent would give during trial. The court noted
it would give the consciousness of guilt instruction, finding this
“after-the-fact” evidence admissible as to flight and consciousness of guilt,
20
and counsel could argue to the jury what the videos meant. The prosecutor
played for the jury the two short videos from Mehlenbacher’s social media
accounts. The court received the videos into evidence, with defense counsel
then stating “[s]ubject to the previous objections.”
b. Analysis
Mehlenbacher asserts the trial court erred when it rejected his
relevance objections to the videos since they did not address a disputed issue
and were cumulative to the border patrol agents’ testimony. We reject the
People’s contention Mehlenbacher forfeited his objections by failing to renew
them at trial. When the prosecutor requested the videos be moved into
evidence, defense counsel initially stated “[n]o objection” but then added
“[s]ubject to the previous objections,” which the court acknowledged.
Evidence of flight immediately after committing a crime is relevant to
show consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005,
1055.) “Evidence showing consciousness of guilt . . . is generally admissible
within the trial court’s discretion.” (People v. Anderson (2018) 5 Cal.5th 372,
391.) We review a trial court’s admission or exclusion of “consciousness of
guilt” evidence for abuse of discretion. (Ibid.)
Mehlenbacher did not object to instructing the jury with CALCRIM
No. 372 regarding a defendant’s flight.7 Generally, a flight instruction “is
proper where the evidence shows that the defendant departed the crime
scene under circumstances suggesting that his movement was motivated by a
consciousness of guilt.” (People v. Ray (1996) 13 Cal.4th 313, 345; Pen. Code,
7 CALCRIM No. 372, as given, provides: “If the defendant fled
immediately after the crime was committed, that conduct may show that he
was aware of his guilt. If you conclude that the defendant [fled], it is up to
you to decide the meaning and importance of that conduct. However,
evidence that the defendant fled cannot prove guilt by itself.”
21
§ 1127c.) A defendant’s high-speed flight from law enforcement is also
admissible to show consciousness of guilt. (People v. Mason (1991) 52 Cal.3d
909, 941.)
Accordingly, we reject Mehlenbacher’s argument the videos were
irrelevant. We also disagree with his assertions the videos were cumulative
of border patrol agents’ testimony. The first video lasted approximately
10 seconds and had no audio. The second video also lasted about 10 seconds
and included audio of a man’s voice. The jury saw both videos and received a
transcript of what was said on the second video. Although this transcript is
not included in the record on appeal, its existence shows the video is not
cumulative of the border patrol agents’ testimony about the car chase. The
videos consumed a few minutes of testimony and did not create a risk of
confusing the jury or obscuring the issues. The trial court did not abuse its
discretion admitting these videos.
6. The court did not violate Mehlenbacher’s constitutional rights by
allowing a crime scene video and photographs of Kenneth.
a. Background
In his trial brief, Mehlenbacher moved to exclude any unnecessarily
“inflammatory photographs” of Kenneth’s body. The People sought to
introduce eight autopsy photographs showing the bullet entrance and exit
wounds, the gunshot wound, and Kenneth’s upper body. They also sought to
admit a photograph of Kenneth in life and an officer’s body-worn camera
footage from the scene minutes after the shooting occurred to show Kenneth’s
body position, the injury sustained to his head, the life-saving measures
taken by law enforcement at the scene, and the position of the knife found at
Kenneth’s feet before other officers moved it.
At the hearing on the motions, defense counsel argued the body camera
video should be excluded to the extent it showed Kenneth’s body being taken
22
down the stairs by law enforcement to start CPR on him, arguing this section
of the video was irrelevant. The court watched the video and found it to be
nonprejudicial and relevant for the jury to see the condition of the crime
scene until paramedics took over life-saving measures from law enforcement.
It granted the motion to admit the video.
As to the autopsy photographs, the prosecutor argued eight
photographs were necessary to show the cause of death as a gunshot wound
to the head. Two of the photographs showed the entry and exit wounds with
the scalp in place. Defense counsel did not object to these photographs.
Defense counsel objected to the last two photographs showing the entry and
exit wounds with the scalp removed as “highly disturbing” because no dispute
existed regarding how Kenneth died. The court admitted six photographs,
and reserved ruling on the two disputed photographs until it could see
whether the prosecutor could crop those photographs to omit the “gory”
details of the skin peeled back. It later admitted the last two photographs,
over defense counsel’s continuing objection, noting the prosecutor “cleaned
[the photographs] up enough for my sake.” At trial, over defense counsel’s
continued objection, the medical examiner discussed the autopsy
photographs, including the two photographs showing the bullet entry and
exit wounds in Kenneth’s skull with the scalp removed.
Defense counsel submitted to admitting the single proffered
photograph of Kenneth in life. At trial, the prosecutor used this photograph
during his opening statement to identify Kenneth and describe him to the
jury. During trial, the lead detective also identified Kenneth from this
photograph which was then admitted into evidence without objection.
The prosecutor also used the disputed body-camera video during
opening statement to describe the “last moments” of Kenneth’s life, which
23
included the position of his body when the officers arrived, the point where
the officers carried him down the stairs and the beginning of life-saving
measures. The officer who wore the body-camera later testified Kenneth had
a significant amount of blood coming from his head, and officers carried him
down the stairs to start life-saving measures. The court watched the video
and stated: “[F]irst I thought it was something prejudicial that might
engender sympathy with the jury, but I don’t see anything prejudicial about
what I just watched.”
The prosecutor played a portion of the body-camera video for the jury
and the court later admitted the video into evidence. During the video, a
different officer noted a knife next to Kenneth. The prosecutor also played
the video during closing argument to describe the last minutes of Kenneth’s
life.
b. Analysis
Mehlenbacher contends the court erroneously allowed the prosecutor to
use at trial: (1) a photograph of Kenneth while alive; (2) two autopsy
photographs showing Kenneth’s scalp pulled back; and (3) the officer’s
body-worn camera video which showed officers carrying Kenneth down the
stairs and performing life-saving measures. We address each contention in
turn and find no prejudicial error.
i. Photograph of Kenneth Alive
Mehlenbacher asserts the photograph of Kenneth when he was alive
was irrelevant because the parties did not dispute his identity and the
prosecutor then improperly used the photograph for a reason other than that
for which it was admitted. We disagree. Mehlenbacher forfeited any issue
regarding the picture being admitted into evidence by submitting on its
admissibility and allowing the prosecutor to use it at trial without objection.
24
Even so, Mehlenbacher contends defense counsel was constitutionally
ineffective for not objecting.
Here, because defense counsel submitted on the admission of the
photograph, the prosecutor did not explain its relevance and the court did not
state the grounds allowing it into evidence. On this record, Mehlenbacher
has not shown how allowing the jury to see the single photograph prejudiced
him. Mehlenbacher admitted shooting Kenneth, and the primary issue at
trial was whether he committed murder or voluntary manslaughter. While
the photograph was not relevant to this disputed issue, it was not “likely to
have appreciably intensified whatever feelings—whether of hostility toward
[Mehlenbacher] or sympathy toward [Kenneth]—that the jury may have
developed in this case.” (See People v. Poggi (1988) 45 Cal.3d 306, 323.) We
conclude any error was harmless beyond a reasonable doubt under Chapman,
supra, 386 U.S. 18. With no prejudice shown, we need not determine
whether defense counsel’s performance was deficient. (Hester, supra,
22 Cal.4th at p. 297.)
ii. Autopsy Photographs
Mehlenbacher contends the court erred by admitting the two autopsy
photographs over his objection because they were not necessary to explain the
medical examiner’s testimony regarding how Kenneth died. Even assuming
the photographs had some relevance, he contends this was substantially
outweighed by the danger of unfair prejudice.
Appellate courts “have rejected the contention that photographs of a
murder victim must be excluded as cumulative simply because testimony also
has been introduced to prove the facts that the photographs are intended to
establish.” (People v. Crittenden (1994) 9 Cal.4th 83, 134–135.) Prosecutors
“are not obliged to prove their case with evidence solely from live witnesses,”
25
and a jury is “entitled” to see photographs of a victim’s body “to determine if
the evidence supports the prosecution’s theory of the case.” (Gurule, supra,28 Cal.4th at p. 624.) We will not disturb the trial court’s exercise of its
discretion unless the probative value of the two autopsy photographs clearly
is outweighed by their prejudicial effect. (Crittenden, at p. 134.)
The two photographs in question, exhibits 7 and 8, showed the entry
point of the bullet on the side of Kenneth’s head and the exit point to the back
of his head after the scalp had been removed from the skull. The prosecutor
argued these photographs supported the medical examiner’s testimony
because the photographs with the scalp in place do not look like bullet
wounds. The court agreed, stating, “It looks like [the wounds] could have
been [made] with a baseball bat or something or the other.” The medical
examiner briefly referred to exhibits 7 and 8 to discuss the bullet’s direction
and path and explain why the wounds with the scalp in place looked different
from the wounds with the scalp removed.
We examined all the photographs. We agree the photographs of the
entry and exit wounds with the scalp in place do not conclusively show the
wounds were caused by a bullet. While graphic, the two disputed
photographs showing the entry and exit wounds with the scalp removed were
relevant to assist the jury in understanding the medical examiner’s
testimony. Even assuming the court erred by admitting them, they are not so
impactful as to undermine the jury’s rationality. Accordingly, the trial court
acted within its discretion in finding the risk for undue prejudice did not
greatly outweigh the probative value presented by each admitted photograph.
iii. Body Camera Video
An officer who responded to the murder scene wore a body camera.
Mehlenbacher contends the video showing the officers arriving at the scene,
26
finding Kenneth, carrying him down the stairs, and performing CPR should
have been excluded as irrelevant and unduly prejudicial. The People contend
the video corroborated the officer’s testimony about the crime scene, what
occurred immediately after officers arrived, and the knife’s location.
Victim photographs in murder cases “ ‘are disturbing’ ” and while the
jury should be shielded from photographs that are “unnecessarily gruesome,”
“the jury cannot be shielded from an accurate depiction of the charged crimes
that does not unnecessarily play upon the emotions of the jurors.” (People v.
Ramirez (2006) 39 Cal.4th 398, 454 (Ramirez).) The same can be said about a
first responder’s body camera video. We viewed the video which is just over
three minutes long. A skateboard can be seen by Kenneth’s feet at the
34-second mark, and at the 59-second mark one officer states, “there is a
knife right there” and another officer picks up the knife. The two first
responding officers who testified at trial did not see the knife. One officer
stated he saw the skateboard but not the knife. The second officer who wore
a body camera also could not recall seeing a knife. Additionally, a third
officer who investigated the matter knew a knife had been recovered from the
scene but never saw it. Accordingly, the video established the existence of
the knife next to Kenneth’s foot when the first responders arrived at the
scene; a critical point for Mehlenbacher’s self-defense claim. What is depicted
in the video also corroborates the testimony of the two first responders who
testified.
Significantly, during discussion of the in limine motions, defense
counsel noted he was “okay with the video up until they move [Kenneth] from
where he’s laying [sic] and they start taking him down the stairs. It’s not
even the crime scene anymore.” Based on the foregoing discussion, we
conclude the initial and unobjected to portion of the video was highly relevant
27
but agree the portion of the video objected to by defense counsel showing
officers taking Kenneth down the stairs and administering CPR was
irrelevant. Nonetheless, we conclude admission of this portion of the video
constituted harmless error.
The question is whether the video accurately depicts the nature of the
crime without “unnecessarily play[ing] upon the emotions of the jurors.”
(Ramirez, supra, 39 Cal.4th at p. 454.) The trial court should have limited
the video clip to the officers’ discovery of Kenneth and ended it when the
officers started to move him. However, the brief portion of the video showing
the officers carrying Kenneth down the stairs and beginning CPR,
considering the entire record, neither sensationalizes Kenneth’s killing nor
contains unnecessary gore. Accordingly, the court’s error in admitting this
portion of the video was harmless.
7. No error admitting video of Mehlenbacher holding a gun.
a. Background
During in limine discussions with the court, the prosecutor sought to
admit a video of Mehlenbacher holding a gun and pointing it at a camera
while Mehlenbacher recorded himself. When asked for a response, defense
counsel asked that no audio be played with the video, or that a photograph be
used instead. The court found the video, taken near the time of the shooting,
admissible, noting another witness might identify the gun as the one used
during the shooting. The court concluded either a video without sound or a
photograph were admissible and left it to the prosecutor to decide which to
use. At trial, the jury viewed, without objection, a silent video from
Mehlenbacher’s social media account showing Mehlenbacher filming himself
inside a vehicle with a semiautomatic handgun. During closing, the
28
prosecutor argued the video evidenced Mehlenbacher’s intent to kill with the
gun.
b. Analysis
Mehlenbacher argues the video of him waving a gun while his lips are
moving with no sound should have been excluded as cumulative to other
evidence showing he had a gun before the shooting and because it was unduly
prejudicial. We are not persuaded.8
Section 352 provides a trial court may “exclude even relevant evidence
if its probative value is outweighed by other factors. Among them is the risk
that admission will necessitate undue consumption of time. Cumulative
evidence is excludable on this basis.” (People v. Burgener (1986) 41 Cal.3d
505, 525.) Cumulative evidence can also be excluded when its low probative
value is outweighed by the risk “of confusing the jury and obscuring the
fundamental issues.” (People v. Carter (1957) 48 Cal.2d 737, 749.)
Here, the video took very little time, less than 10 seconds.
Mehlenbacher does not explain how this short video risked confusing the jury
and obscuring fundamental issues. Moreover, “[e]vidence that is identical in
subject matter to other evidence should not be excluded as ‘cumulative’ when
it has greater evidentiary weight or probative value.” (People v. Mattson
(1990) 50 Cal.3d 826, 871.) Law enforcement testified they never located
Mehlenbacher’s gun. Bobby described the gun as a dark green pistol with a
regular size magazine. This description fits the type of gun Mehlenbacher
displayed in the video, corroborating Bobby’s testimony. Photographic or
video evidence is not cumulative simply because it illustrates facts otherwise
8 The People assert Mehlenbacher forfeited these arguments by failing to
object to admission of the video. At trial, the court admitted the video subject
to defense counsel’s prior objections. On this record we decline to deem the
issue forfeited.
29
presented through testimony. (People v. Anderson (2001) 25 Cal.4th 543,
592.) Finally, we reject Mehlenbacher’s complaint the video was unduly
prejudicial because it evoked an emotional bias against him. We fail to see
how this short, silent video of him holding what is likely the murder weapon
could have created an emotional bias against him where he admitted being
the shooter.
8. No error excluding evidence of Mehlenbacher previously being
shot.
a. Background
The prosecutor moved to exclude evidence that in June 2020
Mehlenbacher was shot in the leg while attempting to steal or burglarize
cars. He argued that without Mehlenbacher’s testimony, no witnesses could
establish how having been shot affected Mehlenbacher’s state of mind at the
time he shot Kenneth. At the pretrial hearing on the motion, defense counsel
moved to admit this evidence, claiming it would explain why Mehlenbacher
had a gun and further explain Mehlenbacher’s inability to properly defend
himself (his mobility was impaired), as relevant to imperfect
self-defense. The court expressed skepticism regarding how defense counsel
could show the ways in which being shot affected Mehlenbacher’s state of
mind when he shot Kenneth unless Mehlenbacher testified. The court
acknowledged a defendant need not testify regarding his or her state of mind
to establish self-defense, but the court expressed concern that the evidence
was irrelevant because Mehlenbacher’s proposed witnesses regarding his
prior shooting injury (police officers and an individual who witnessed the
shooting) would not be able to testify regarding what Mehlenbacher was
thinking months later when he shot Kenneth. The court took the issue under
submission to conduct research.
30
Relying on People v. Gonzales (1992) 8 Cal.App.4th 1658 (Gonzales) and
“lots of [other] case law,” the court later ruled that because Kenneth was not
the person who had previously shot Mehlenbacher, and self-defense and
imperfect self-defense require defendants actually believe they are in
imminent danger, it would exclude the evidence of Mehlenbacher being shot
unless he testified. Nonetheless, if evidence of Mehlenbacher’s injured leg
arose during trial, the court indicated it would allow defense counsel to ask
how the injury occurred.
Bobby testified he always saw Mehlenbacher leave the apartment with
a gun tucked in his front waistband. Mehlenbacher had been homeless
before coming to live with him about a week and a half before the shooting.
He also stated Mehlenbacher could not run because he had been shot in the
leg a few months earlier.
b. Analysis
Mehlenbacher asserts the court prejudicially erred by excluding other
evidence he was previously shot because the evidence was relevant to
determine whether Kenneth’s actions provoked him into acting under the
heat of passion or in self-defense. At trial, defense counsel acknowledged
Kenneth was not the person who previously shot Mehlenbacher.
Additionally, nothing in the record suggests Mehlenbacher was shot by
someone associated with Kenneth. On these facts, we agree with the trial
court that evidence bearing on Mehlenbacher’s perception of danger of
Kenneth was insufficient to understanding Mehlenbacher’s perspective and
how a reasonable person would act under similar circumstances.
A homicide is considered justified as self-defense where the defendant
actually and reasonably believed the use of deadly force was necessary to
defend against imminent danger and defendant’s belief was both objectively
31
and subjectively reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073,
1082.) “If the belief subjectively exists but is objectively unreasonable,” it is
imperfect self-defense and the defendant may be convicted of manslaughter,
but not murder. (Ibid., italics added.) In such cases, the primary issue for
the jury is the reasonableness of the defendant’s subjective beliefs. (Id. at
pp. 1082−1083.)9
Mehlenbacher contends evidence of being shot months prior to killing
Kenneth was relevant because it created in Mehlenbacher a heightened sense
of vigilance that caused him to act in self-defense, or imperfect self-defense,
to the threat he believed Kenneth posed. To prove such a claim,
Mehlenbacher needed to show he actually believed himself to be in deadly
peril when he fired his gun, and in the case of perfect self-defense, that his
belief was reasonable under the circumstances. First, Mehlenbacher
presented no evidence to the court showing the June 2020 shooting affected
him (e.g., that he became hypervigilant, depressed, withdrawn, or other
evidence from which a trier of fact might conclude the experience of being
shot in the leg changed his behavior.) Even assuming Mehlenbacher had
presented such evidence, it was relevant only if it showed he actually feared
for his life when he discharged his weapon. However, Mehlenbacher did not
testify and presented no other evidence regarding his actual state of mind at
the time he shot Kenneth. Accordingly, the trial court correctly determined
the evidence addressing Mehlenbacher’s state of mind was not relevant.
9 Similarly, the heat of passion theory has objective and subjective
components. (People v. Steele (2002) 27 Cal.4th 1238, 1252.) The “defendant
must actually, subjectively, kill under the heat of passion.” (Ibid.) The
objective component requires provocation sufficient to arouse the passions of
the “ordinarily reasonable” person. (Id. at pp. 1252–1253.)
32
Mehlenbacher’s reliance on People v. Sotelo-Urena (2016) 4 Cal.App.5th
732 is misplaced. In that case, the appellate court concluded the trial court
erred by excluding expert testimony regarding the high rate of violence in the
homeless community and the associated fear of violence many homeless
individuals experience. (Id. at pp. 745–746, 750.) Although
Sotelo-Urena did not testify on his own behalf, the defense introduced
statements he made to the police immediately after the incident showing he
was stabbed a few weeks earlier and believed the man that approached him
was one of his previous attackers who was going to attack him again. (Id. at
pp. 737–738.) This was direct evidence regarding the defendant’s actual state
of mind at the time the crime was committed, and the excluded evidence was
relevant to the reasonableness of Sotelo-Urena’s actions. (Id. at p. 750; see
also People v. Horn (2020) 63 Cal.App.5th 672, 677, 685–686 [defendant
testified how his physical limitations affected his mind at the time he shot
the victim].) Here, no evidence existed regarding Mehlenbacher’s actual state
of mind or showing he feared for his life when he shot Kenneth.10 We
conclude the trial court did not err when it excluded evidence Mehlenbacher
was previously shot in the leg.
B. Alleged Instructional Error
We now turn to Mehlenbacher’s arguments regarding jury instructions.
He contends the court committed instructional error when it (1) denied two
requested pinpoint instructions and (2) refused to instruct regarding
involuntary manslaughter. We separately address each contention.
10 Mehlenbacher’s reliance on People v. Lee Chuck (1887) 74 Cal. 30 is
also misplaced. This case stands for the proposition evidence of threats from
the victim’s associates may be used to support a self-defense claim and show
the defendant believed his life was in danger. (Id. at p. 34; see also People v.
Minifie (1996) 13 Cal.4th 1055, 1067 (Minifie).) There is no such evidence in
the instant case.
33
1. The court did not err by denying Mehlenbacher’s requested
pinpoint instructions.
a. Background
Defense counsel requested two pinpoint instructions. The first
proposed pinpoint instruction read: “The jury may consider the effect of
‘antecedent threats and assaults against the defendant on the reasonableness
of defendant’s conduct.’ (People v. Garvin (2003) 110 Cal.App.4th 484, 488
[citation omitted].)” The court refused to give this instruction for the same
reason it excluded evidence Mehlenbacher was previously shot. The court
explained Kenneth did not shoot Mehlenbacher and, in the absence of
testimony from Mehlenbacher, there was no evidence what effect being shot
had on Mehlenbacher’s thought process when he shot Kenneth.
The second proposed pinpoint instruction read: “A defendant’s physical
limitations are relevant when deciding the reasonable person standard for
self-defense. (People v. Horn[, supra, 63 Cal.App.5th at p. 686].)” The court
refused to give this instruction to the jury because, while Mehlenbacher was
unable to run down the apartment stairs, he had no difficulty walking down
the stairs or driving his car after the shooting; thus, insufficient evidence
showed his leg injury influenced how he acted when he shot Kenneth.
b. Analysis
Mehlenbacher maintains the court erred when it failed to give the
pinpoint instructions because they were correct statements of law and not
argumentative or duplicative of other instructions. The People disagree,
arguing substantial evidence did not support giving the instructions.
“Pinpoint instructions” relate specific facts to a legal issue in the case to
highlight or “pinpoint” the crux of a defendant’s case. (People v. Ward (2005)
36 Cal.4th 186, 214.) Upon request, a pinpoint instruction must be given
when supported by substantial evidence unless it is argumentative or
34
duplicates other instructions. (People v. Bolden (2002) 29 Cal.4th 515,
558–559.) “We review claims of instructional error de novo.” (People v.
Zemek (2023) 93 Cal.App.5th 313, 346.)
Defendants asserting a claim of self-defense, and seeking to provide
evidence of threats by the victim or those associated with the victim to
support the reasonableness of their perceptions and resulting beliefs, are
“entitled to an instruction on the effect of antecedent threats or assaults by
the victim on the reasonableness of defendant’s conduct.” (Gonzales, supra,
8 Cal.App.4th at pp. 1663–1664, original italics.) The right to such an
instruction is based on common sense and experience that a defendant
previously threatened or assaulted by another person may reasonably “ ‘be on
heightened alert’ ” upon encountering that person again. Moreover, the
instruction contemplates that the defendant will reasonably take prior
threats or assaults “ ‘into account in deciding the necessity for, and the
amount of, defensive action, in response to any act on the part of [that
person] reasonably appearing to be calculated to carry out that threat [or
assault].’ ” (Minifie, supra, 13 Cal.4th at p. 1065.)
Here, substantial evidence did not support Mehlenbacher’s first
pinpoint instruction regarding the effect of antecedent threats or assaults on
the reasonableness of his conduct because he did not proffer evidence
showing Kenneth or someone associated with Kenneth previously threatened
or assaulted him. A person who has been previously threatened or assaulted
is not justified in taking quicker and harsher measures for his or her own
protection as to “all the world” than would a person who had not been so
threatened or assaulted. (Gonzales, supra, 8 Cal.App.4th at p. 1664, original
italics.)
35
Similarly, substantial evidence did not support the second proposed
pinpoint instruction regarding his physical limitations. Evidence existed
showing Mehlenbacher could walk down a flight of stairs but could not run
because he was shot in the leg a few months earlier. But no evidence existed
showing this injury impacted his decision to shoot Kenneth. Rather, he
opened a door separating Kenneth from himself and shot Kenneth, who was
about 15 feet away. These circumstances do not support the requested
pinpoint instruction.
2. The court did not err by refusing to instruct on involuntary
manslaughter.
a. Background
Defense counsel requested the court instruct the jury with the pattern
instruction for involuntary manslaughter (CALCRIM No. 580). He argued
the facts supported the instruction because Mehlenbacher fired a single
gunshot, in a dark hallway from at least 20 feet away, no bullet was
recovered, and no investigation was conducted to determine whether a
projectile ricocheted and hit Kenneth. The court questioned how involuntary
manslaughter applied when firing a gun in such close quarters from that
distance constituted, at the very least, a conscious disregard for human life.
It refused to give the involuntary manslaughter instruction because the facts
did not support it. Instead, it instructed the jury on first degree murder
based on premeditation and deliberation (CALCRIM No. 521), first or second
degree murder with malice (CALCRIM No. 520), and voluntary manslaughter
based on sudden quarrel or heat of passion (CALCRIM No. 570), self-defense
(CALCRIM No. 505), and imperfect self-defense (CALCRIM No. 571).
b. Analysis
Mehlenbacher contends the court erred by failing to instruct on the
lesser offense of involuntary manslaughter because there is no way to
36
conclude with absolute certainty he understood or appreciated the risk to
human life at the time he pulled the trigger. He also claims substantial
evidence supported the instruction because no evidence existed disproving
the possibility the bullet he fired ricocheted and hit Kenneth in the head.11
We are not persuaded.
Involuntary manslaughter is an unlawful killing of a human being
without malice or with mitigated malice. (Pen. Code, § 192, subd. (b).)
“Involuntary manslaughter is a lesser offense of murder, distinguished by its
mens rea.” (People v. Butler (2010) 187 Cal.App.4th 998, 1006.) “The mens
rea for murder is specific intent to kill [actual malice] or conscious disregard
for life [implied malice]. [Citation.] Absent these states of mind, the
defendant may incur homicide culpability for involuntary manslaughter . . . .”
(Ibid.) The mens rea for involuntary manslaughter is criminal negligence.
(Ibid.)
“ ‘[T]he existence of “any evidence, no matter how weak” will not justify
instructions on a lesser included offense, but such instructions are required
whenever evidence that the defendant is guilty only of the lesser offense is
“substantial enough to merit consideration” by the jury. [Citations.]
“Substantial evidence” in this context is “ ‘evidence from which a jury
composed of reasonable [persons] could . . . conclude[ ]’ ” that the lesser
offense, but not the greater, was committed.’ ” (People v. Moye (2009)
47 Cal.4th 537, 553, original italics.)
The record does not contain substantial evidence showing
Mehlenbacher killed without malice under circumstances demonstrating
criminal negligence. Instead, the record shows he purposely opened the door,
11 This would make the shot he fired at Kenneth a warning shot, or an
effort to scare Kenneth to stop Kenneth’s loud activity.
37
stated “I’m going to shoot you,” then pulled the slide back on the gun, raised
it to shoulder level, and fired it. When Bobby asked if he shot Kenneth,
Mehlenbacher responded, “Yeah.” Mehlenbacher points to nothing in the
record indicating he lacked a subjective awareness of the danger his conduct
posed to human life. Even viewing the evidence in the light most favorable to
him, a rational jury could not have entertained a reasonable doubt as to
whether Kenneth’s death was accomplished by implied malice during an
inherently dangerous assaultive felony. Thus, the court did not err when it
refused to instruct on involuntary manslaughter.
C. Alleged Prosecutorial Error
1. General Legal Principles
“A prosecutor engages in misconduct by misstating facts or referring to
facts not in evidence, but he or she enjoys wide latitude in commenting on the
evidence, including urging the jury to make reasonable inferences and
deductions therefrom.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
95.) “Advocates are given significant leeway in discussing the legal and
factual merits of a case during argument. [Citation.] However, ‘it is
improper for the prosecutor to misstate the law . . . .’ ” (Centeno, supra,60 Cal.4th at p. 666.) “A prosecutor’s conduct violates the Fourteenth
Amendment of 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 [error] under state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial court or the
jury.” (People v. Morales (2001) 25 Cal.4th 34, 44.)
To establish prosecutorial error during comments made to the jury,
appellant must show that “ ‘[i]n the context of the whole argument and the
38
instructions’ [citation], there was ‘a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.) It is the
defendant’s burden to show the jury construed the prosecutor’s remarks in an
objectionable fashion. (People v. Ramirez (2022) 13 Cal.5th 997, 1129.)
To preserve a claim of prosecutorial misconduct or error, a defendant
must timely object and request a curative admonition unless an admonition
would not have cured the harm caused by the misconduct or error. (People v.
Hinton (2006) 37 Cal.4th 839, 863.) The failure to raise the issue of
prosecutorial error at trial generally forfeits the right to appellate review of
that issue. (People v. Thomas (2011) 51 Cal.4th 449, 491–492.) Although
Mehlenbacher’s counsel failed to raise the issue of prosecutorial misconduct
at trial, we may nonetheless reach the merits of his claim given his
alternative argument that his counsel rendered ineffective assistance of
counsel.
Here, defense counsel did not object at trial to any of the alleged
prosecutorial errors alleged on appeal. We address each alleged instance of
alleged prosecutorial error separately to evaluate whether it is reasonable to
believe the jury understood the prosecutor’s comments to convey an improper
meaning. If so, we consider whether anything in the record indicates an
objection would have been futile or whether the prosecutor’s argument was
“so extreme or pervasive that a prompt objection and admonition would not
have cured the harm.” (Centeno, supra, 60 Cal.4th at p. 674.) Finally, we
analyze his alternative argument that defense counsel’s failure to object
constituted ineffective assistance of counsel.
39
2. References to Kenneth’s age and last moments did not constitute
error.
Mehlenbacher claims the prosecutor improperly appealed to the jurors’
sympathy and passion during opening statement and closing argument when
the prosecutor (i) played a “snippet” from an officer’s body-worn camera video
during opening statement and said, “These are the last moments of
[Kenneth’s] life”; (ii) referred to that video during closing argument and
recounted “those guttural breaths, the last moments in [Kenneth’s] life,
where his body was struggling to survive as officers were rendering aid”;
(iii) played the video during closing argument saying, “Those are [Kenneth’s]
last moments”; and (iv) commented on Kenneth while playing a witness’s 911
call.
Mehlenbacher does not argue, nor does anything in the record indicate,
that an objection would have been futile or that the prosecutor’s statements
were “so extreme or pervasive that a prompt objection and admonition would
not have cured the harm.” (Centeno, supra, 60 Cal.4th at p. 674.) Thus, the
only question is whether the record establishes ineffective assistance of
counsel as a matter of law.
“ ‘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.’ ” (People v.
Vance (2010) 188 Cal.App.4th 1182, 1192.) To the extent referring to
Kenneth as a “kid” and recounting the last moments of his life as depicted by
officer’s body-worn camera video appealed to the jury’s sympathy and
passion, we conclude Mehlenbacher was not prejudiced by counsel’s failure to
object to these references because the court instructed the jury pursuant to
CALCRIM No. 200. This instruction informed the jury that it should not let
“bias, sympathy, prejudice, or public opinion influence [its] assessment of the
evidence or [its] decision,” including any bias in favor of or against any
40
defendant, or alleged victim, because of age. We presume, in the absence of
evidence to the contrary, the jury understands and follows instructions from
the trial court. (People v. Fauber (1992) 2 Cal.4th 792, 823.)
Moreover, defense counsel could have reasonably determined objections
to these descriptive words were not warranted because they constituted fair
comment on the evidence. Kenneth’s last moments of life as depicted by an
officer’s body-worn camera video, including audio, was already in evidence.
The prosecutor’s comments “ ‘did not mischaracterize or assume facts not in
evidence, but merely commented on the evidence and made permissible
inferences.’ ” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th
719, 787 (Holmes).) Because no prosecutorial misconduct existed, defense
counsel had no cause to object, and Mehlenbacher’s claim of ineffective
assistance fails.
3. Any misstatements of law were not prejudicial.
Mehlenbacher contends the prosecutor misstated the law (1) of heat of
passion during closing and rebuttal argument by implying that provocation
must be of the kind that would cause an ordinary person of average
disposition to kill, (2) of imperfect self-defense during closing argument, and
(3) during jury selection and closing argument by misleading the jury into
believing Mehlenbacher’s age could not be considered. We separately address
each contention.
a. Heat of Passion
The People concede the prosecutor misstated during closing and
rebuttal argument that the standard for heat of passion is whether an
adequate provocation would move an ordinary person of average disposition
41
to kill.12 We agree. Heat of passion which reduces murder to voluntary
manslaughter requires a person of average disposition to react to the
provocation with his or her reason and judgment obscured. (People v. Beltran
(2013) 56 Cal.4th 935, 949 (Beltran).) “[P]rovocation is not evaluated by
whether the average person would act in a certain way: to kill. Instead, the
question is whether the average person would react in a certain way: with
his reason and judgment obscured.” (Ibid.)
Nevertheless, during closing argument, the prosecutor explained the
correct legal standard to the jury before the remarks Mehlenbacher
complains about. When the prosecutor started to talk about heat of passion,
he correctly told the jury the “provocation . . . must be one that would cause
an emotion so intense to an ordinary person that somebody would simply act
without reflection or a thought process. . . . And the analysis here is that
12 During closing argument, the prosecutor stated: “The test is would a
reasonable person in the same situation acted—would act in the same way
the defendant did? Would a reasonable person who just heard a loud bang
outside, would he grab a gun, open the door, rack it, and pull the trigger?
Absolutely not, ladies and gentlemen. That is ridiculous. That is a ludicrous
argument to think that a reasonable person would ever do anything like that,
but that’s exactly what the defendant did because he had the intent to kill.
[¶] So sufficient provocation is required, sufficient provocation for what
occurred. And what occurred? It was a shooting. . . . [¶] . . . [A]nd that
bang is so provocative that the defendant is so overcome by his
emotions . . . that it was reasonable that an average person would go out and
pull a gun on the individual and pull the trigger. This is not heat of passion.
It’s not even close, ladies and gentlemen. That is a ludicrous argument to
even consider.”
During rebuttal argument, the prosecutor stated: “And then you have
to find whether or not there’s sufficient provocation for a reasonable
individual to do what the defendant did. Nobody is going to do that after
hearing a loud bang outside. Who’s going to open the door, load the gun, and
fire a bullet into somebody’s head? That’s not reasonable. That’s a ludicrous
argument, ladies and gentlemen. This is not heat of passion.”
42
provocation would cause a person of average disposition to act rashly and
without . . . due deliberation that is from passion rather than judgment.”
Moreover, the court fully and properly instructed the jury on the law
regarding the prosecutor’s burden of proof and heat of passion. It instructed
the jury, “If you believe that the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions.” Additionally, the evidence
established Mehlenbacher did not shoot Kenneth in self-defense or under the
heat of passion, but instead he acted with at least implied malice when he
opened the door, pulled back the gun’s slide, aimed the weapon, and fired a
bullet into Kenneth’s head. There is no reasonable likelihood of a different
result had defense counsel objected to these statements of the prosecutor.
Mehlenbacher fails here to prove ineffective assistance of counsel.
Mehlenbacher also complains the prosecutor gave misleading examples
during closing argument where heat of passion was appropriate and
reminded the jury to “not ignore the examples” during rebuttal. Specifically,
the prosecutor gave the following examples:
A father kills his child[’s] molester. He walks in on, you
know, his brother, the child’s uncle, molesting his child.
He’s so overcome by emotions that he’s no longer able to
process information correctly and he pulls the trigger or he
grabs a knife and starts hacking away before he even
realizes what he did. That’s heat of passion, ladies and
gentlemen. Same thing, brother walks in on his sister
being raped and then he goes and kills the rapist. Seeing
the most horrific thing someone could imagine seeing
happening to your blood. This isn’t somebody making a
loud bang outside because you’re trying to go to sleep.
That’s not provocation. That’s not even close.
Or a woman who’s in a vehicle gets T-boned by a drunk
driver, sees that her husband in the driver’s seat is dead,
they carry a weapon, she pulls it out and shoots the driver.
These are heat of passion situations. These are the
43
examples that this law was created to encapsulate because
the law recognizes legitimate human frailty, that these
things can happen and you can be overcome by the
emotions so that you cannot process correctly. That is not
what happened here, ladies and gentlemen. Do not call
this anything less than what it is: murder.
Without citation to authority, Mehlenbacher contends these examples
misled the jury. For heat of passion to exist “the provocation must be one
that would cause an emotion so intense that an ordinary person would simply
react, without reflection.” (Beltran, supra, 56 Cal.4th at p. 949.) “[T]he anger
or other passion must be so strong that the defendant’s reaction bypassed his
thought process to such an extent that judgment could not and did not
intervene.” (Ibid.) Here, the prosecutor merely provided examples of states
of mind in which he suggested reaction bypassed any thought process. The
examples do not misstate the law regarding provocation and heat of passion.
Assuming the hypotheticals could be erroneously construed to suggest
that the only circumstances making a homicide lawful or constituting
adequate provocation are defense of others or seeing a loved one killed,
Mehlenbacher has not shown a reasonable likelihood the jury misapplied the
law because of the prosecutor’s examples. The prosecutor correctly argued
heat of passion requires an intense emotion that causes a person to act
without reasoning, thought, or reflection. Here, the court correctly instructed
the jury that “[a]s a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured his reasoning or
judgment” and “[h]eat of passion does not require anger, rage, or any specific
emotion. It can be any violent or intense emotion that causes a person to act
without due deliberation and reflection.” When argument runs counter to
instructions given a jury, we will ordinarily conclude the jury followed the
latter and disregarded the former, for “[w]e presume that jurors treat the
44
court’s instructions as a statement of the law by a judge, and the prosecutor’s
comments as words spoken by an advocate in an attempt to persuade.”
(People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.)
Mehlenbacher has not shown his defense counsel acted unreasonably
by not objecting to the prosecutor’s examples. Defense counsel could have
reasonably decided not to risk an overruled objection when his closing
argument and the jury instructions correctly stated the law. Even if counsel
objected and the court sustained the objection, the result would have been a
correction and admonition from the court and an amended argument from
the prosecutor. On this undeveloped record on direct appeal, it is impossible
to establish the absence of an objection arose from deficient performance.
b. Imperfect Self-Defense
We reach the same conclusion for Mehlenbacher’s claim of prosecutorial
error regarding the prosecution’s imperfect self-defense argument. “Under
the doctrine of imperfect self-defense, when the trier of fact finds that a
defendant killed another person because the defendant actually but
unreasonably believed he was in imminent danger of death or great bodily
injury, the defendant is deemed to have acted without malice and thus can be
convicted of no crime greater than voluntary manslaughter.” (In re
Christian S. (1994) 7 Cal.4th 768, 771.) During closing argument, the People
concede the prosecutor misstated the law of imperfect self-defense when he
argued, on two occasions, Mehlenbacher must have “reasonably believed he
was in imminent danger [of] death [or] great bodily injury,” instead of
arguing the correct standard that he had to “actually but unreasonably”
believe he was in imminent danger of death or great bodily injury. (Ibid.)
Defense counsel could have logically chosen not to object because he
addressed imperfect self-defense during his closing argument and the court
45
correctly instructed the jury on the issue. On this record, Mehlenbacher has
not met his burden of showing that in the context of the whole argument and
instructions, a reasonable likelihood existed the jury understood or applied
the complained-of comments in an improper or erroneous manner. (Centeno,
supra, 60 Cal.4th at p. 667.)
c. Consideration of Mehlenbacher’s Age
Mehlenbacher also complains that both during jury selection and later
in closing argument, the prosecutor misled the jury into believing his age
could not be considered. He contends the prosecutor misstated the law by
telling the jury his age could not be considered and was irrelevant to any
issue it needed to decide. Mehlenbacher concedes the cases he cites in
support of this proposition all involved individuals who were not yet 18 years
old when they committed the crimes but contends “none of the characteristics
of youth discussed in the cases end abruptly on one’s 18th birthday.” Viewing
the prosecutor’s statements in context, no prosecutorial error appears.
During voir dire, the prosecutor asked whether the victim deserved
what was coming to him and whether this was a reason to find a defendant
not guilty. He then posed the questions whether a defendant should be found
not guilty based on what neighborhood the defendant came from, the color of
their skin, or their age. The prosecutor told the prospective jurors: “Jury
instructions don’t apply to age. Jury instructions don’t apply to whether or
not somebody is good-looking or not good-looking, or a man or a woman, or
black or white. They apply to defendants, the witnesses all in the same way.”
The prosecutor never told the jury it could not consider age as one of
the circumstances informing its analysis of self-defense, imperfect
self-defense, and heat of passion voluntary manslaughter, as Mehlenbacher
implies. Rather, during voir dire, the prosecutor asked questions about
46
Mehlenbacher’s age to determine whether any of the prospective jurors would
have difficulty setting aside their emotions based on Mehlenbacher’s age.
The prosecutor followed up with additional questions to determine whether
the prospective jurors could set aside any sympathy they had based on
Mehlenbacher’s age or whether a bias existed. The prosecutor reiterated this
point during closing argument:
It is not an 18-year-old kid that you keep hearing, a child,
immature, building sympathy in your minds so that you
feel some sort of hesitation to convict an individual because
of their age. And we talked about this during jury
selection. That is not the way the law applies. 18 years
old, 88 years old, you apply these facts to the law regardless
of age, regardless of the defendant’s maturity level. This
was murder. Nothing less.
Penal Code section 1127h requires a trial court to instruct jurors not to
let sympathy or bias influence their decision. Accordingly, the court
instructed based on CALCRIM No. 200 that jurors should not let “bias [or]
sympathy . . . influence [their] assessment of the evidence or [their] decision,”
including any bias in favor of or against any defendant, or alleged victim,
because of age. These instructions, and the prosecution’s related argument,
were intended to prevent sympathy from influencing the jury’s decision based
on Mehlenbacher’s young age, rather than minimizing the prosecution’s
burden of proving his mental state. Mehlenbacher has not met his burden of
showing that in the context of the whole argument and instructions, a
reasonable likelihood existed the jury understood or applied the
complained-of comments in an improper or erroneous manner. (Centeno,
supra, 60 Cal.4th at p. 667.)13
13 We also note that at the time of Mehlenbacher’s trial in June and
July 2022, the case law on this subject had not yet been extended to young
47
4. Any misstatements of evidence were not prejudicial.
At trial, two border patrol agents testified they received no alerts
concerning the car they chased and did not know who was in the car. The
second agent stated he discontinued pursuing the car because he did not
want to risk a fatality. During closing argument, the prosecutor paraphrased
the second agent’s testimony, stating:
But, eventually, the defendant was acting so recklessly and
so dangerously in an effort not to be caught, in an effort not
to be convicted of murder, that finally the Border Patrol
agent said “Enough is enough. If I keep doing this, this
person is just going to kill somebody else,” and he
withdr[e]w from the pursuit and the defendant was able to
get away. (Italics added.)
Mehlenbacher contends the prosecutor misstated the evidence because
the border patrol agents did not know Mehlenbacher had shot someone. It is
prosecutorial error to argue facts not in evidence. (Holmes, supra, 12 Cal.5th
at p. 787.) Here, it is likely defense counsel did not object because the context
of the prosecutor’s statements make it clear his statements focused on
Mehlenbacher’s dangerous driving during his flight after the shooting, not
the border patrol agent’s knowledge. To the extent a juror may have focused
on the phrase “somebody else” and construed the statement to mean the
adults who were 18 years of age or older at the time of their crimes. (See
People v. Jimenez (2024) 103 Cal.App.5th 994, 1001–1004 [tracing the
chronological expansion of case law “beyond its Eighth Amendment roots to
young adults who were in their teens and early 20s at the time of their
crimes”].) Given more recent legal authority, prosecutors should generally
avoid suggesting to a jury that youth and immaturity are irrelevant in
assessing a murder defendant’s culpability or mental state. Even under
current law, however, the prosecutor committed no error simply by informing
the jurors they should apply the jury instructions regardless of
Mehlenbacher’s age and should not allow sympathy to influence their verdict
based on his age.
48
agents knew Mehlenbacher had killed someone earlier, both agents testified
they had no knowledge of who was in the car during the pursuit.
Additionally, the court instructed the jury, based on CALCRIM No. 200, “You
must decide what the facts are in this case. It is up to all of you, and you
alone, to decide what happened, based only on the evidence that has been
presented to you in this trial.” To the extent the prosecutor’s statement
constituted prosecutorial error, Mehlenbacher has not met his burden of
showing a reasonable likelihood existed the jury understood or applied the
complained-of comments in an improper or erroneous manner. (Centeno,
supra, 60 Cal.4th at p. 667.)
5. The prosecutor did not take unfair advantage of excluded defense
evidence.
The trial court granted the prosecutor’s motion to exclude evidence that
in June 2020 Mehlenbacher was shot in the leg while attempting to steal or
burglarize cars. Nonetheless, if evidence of this injury arose during trial, the
court stated it would allow defense counsel to ask how the injury occurred.
At trial, Bobby testified Mehlenbacher could not run after being shot in the
leg a few months earlier. Mehlenbacher contends the prosecutor took unfair
advantage of the trial court’s ruling to exclude additional evidence relating to
Mehlenbacher being shot. Mehlenbacher specifically points to the
prosecutor’s argument to the jury that Mehlenbacher intended to kill
someone by arming himself with a gun and posting a video of himself
pointing the gun at the camera two days before the shooting.
“Prosecutors should never assert or imply that there is no evidence on a
certain point when they know such evidence exists but was excluded by the
court.” (People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1294.) Here,
the prosecutor did not attempt to prove his case by attesting to facts
unknown to the jury. Instead, he asked the jury to draw inferences from the
49
evidence received during the trial. The prosecutor’s challenged statement
that Mehlenbacher armed himself intending to shoot someone was a
reasonable inference from the evidence. A prosecutor has wide latitude to
comment on the state of the evidence and draw reasonable inferences or
deductions. (People v. Martinez (2010) 47 Cal.4th 911, 957.) “ ‘Whether the
inferences the prosecutor draws are reasonable is for the jury to decide.’ ”
(People v. Wilson (2005) 36 Cal.4th 309, 337.) The prosecutor’s statement
does not constitute prosecutorial error and defense counsel reasonably
decided not to object. In any event, the court instructed the jury that
statements by attorneys are not evidence. (CALCRIM No. 222.) Thus, even
if we assumed impropriety in the prosecutor’s argument, “it was cured when
the trial court instructed the jury with the standard admonition that
argument is not evidence.” (People v. Cash (2002) 28 Cal.4th 703, 734.)
D. Alleged Improper Response to Jury Question
1. Background
Early in deliberations, the jury sent the trial court Jury Note No. 1
stating, “We would like clarification on definitions of ‘deliberately’ and
‘premeditation’ as well as ‘heat of passion’. [¶] Also, please clarify
paragraphs 1 & 2 of 521.” Without seeking any input from counsel or
bringing the jury into the courtroom to discuss the note, the court responded
as follows: “The words ‘deliberately’ and ‘premeditation’ are specifically
defined in Instruction No. 521. The Court cannot clarify those words beyond
the definitions provided in that instruction. [¶] The concept of “Heat of
Passion” is thoroughly explained in Instruction No. 570. The Court cannot
further explain or clarify what is provided in that instruction. [¶] Finally,
the Court cannot clarify paragraphs 1 & 2 of Instruction No. 521. The
50
meaning of the words used in these paragraphs is for you to decide.”14 About
a half-hour later,15 at 1:09 p.m., the judge emailed counsel to inform them
about the note, the court’s response, and said they would receive copies of
both when they came back to the courtroom.
The court went on the record at 1:31 p.m. to address Jury Note No. 2
regarding their inability to agree about whether Mehlenbacher was guilty of
first degree murder. The court responded to the second jury note, with
neither counsel objecting to the court’s response to the first jury note. After
the court responded to the second jury note, the court asked the jury whether
it could do anything else to assist it, suggesting: “Further readings of
testimony? More instructions?” The court received no response.
2. Analysis
Mehlenbacher asserts the court erred in responding to the jury’s first
question outside his presence and without notifying and obtaining counsel’s
input. He claims prejudice because “the jury expressed its confusion over the
14 Paragraphs 1 and 2 of CALCRIM No. 521, as given, provide: “The
defendant is guilty of first degree Murder if the People have proved that he
acted willfully, deliberately, and with premeditation. The defendant acted
willfully if he intended to kill. The defendant acted deliberately if he
carefully weighed the considerations for and against his choice and, knowing
the consequences, decided to kill. The defendant acted with premeditation if
he decided to kill before completing the act that caused death. [¶] The length
of time the person spends considering whether to kill does not alone
determine whether the killing is deliberate and premeditated. The amount of
time required for deliberation and premeditation may vary from person to
person and according to the circumstances. A decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and
premeditated. On the other hand, a cold, calculated decision to kill can be
reached quickly. The test is the extent of the reflection, not the length of
time.” (Original italics.)
15 The court responded to Jury Note No. 1 at 12:42 p.m.
51
mental states required for the legal theories and the first degree murder
instruction.” The People concede the error but argue it was harmless beyond
a reasonable doubt.
A trial court is statutorily required to give notice to the defendant and
defense counsel of any proceedings during the deliberative process.
(Pen. Code, § 1138;16 People v. Garcia (2005) 36 Cal.4th 777, 801–802.) This
gives counsel the opportunity to suggest an alternative course for the trial
court to take or object to the court’s course of action. (Garcia, at p. 802.) A
criminal defendant, however, forfeits a claim of error based on an ex parte
communication between the judge and jury by failing to object or move for
mistrial. (People v. Jennings (1991) 53 Cal.3d 334, 383 (Jennings); In re S.B.
(2004) 32 Cal.4th 1287, 1293, fn. 2 [“the loss of a right based on failure to
timely assert it is ‘forfeiture’ ”].) “Moreover, it is questionable ‘whether a
defendant should be permitted to sit back, await a jury verdict, and then
assert error based on the court’s improper communication with the jury’
[citation], at least when the improper communication was relatively minor.”
(Jennings, at p. 384.)
While Mehlenbacher is correct the court’s action denied him the
opportunity to make a contemporaneous objection to the ex parte
communication, the court notified counsel of the communication and went on
the record less than 30 minutes later to address a second jury note. We
conclude defense counsel had the opportunity to object to the court’s action on
16 Penal Code section 1138 provides: “After the jury have retired for
deliberation, if there be any disagreement between them as to the testimony,
or if they desire to be informed on any point of law arising in the case, they
must require the officer to conduct them into court. Upon being brought into
court, the information required must be given in the presence of, or after
notice to, the prosecuting attorney, and the defendant or his counsel, or after
they have been called.”
52
Jury Note No. 1, move for a mistrial, or request the court give the jury
additional guidance to address any potential jury confusion. Defense
counsel’s silence could be construed as tacit approval of the court’s response.
“Approval of the court’s action, even though it might have been a technical
violation of section 1138 of the Penal Code, cures any possible error.” (People
v. Kageler (1973) 32 Cal.App.3d 738, 746.)
In any event, we address Mehlenbacher’s alternative ineffective
assistance of counsel claim, finding the error harmless. (Chapman, supra,
386 U.S. at p. 24; Jennings, supra, 53 Cal.3d at 383–384 [unauthorized ex
parte communications between the judge and jury are subject to the
Chapman harmless error standard of review].) Here, the ex parte
communication was not prejudicial because the court’s response was neutral,
did not favor either side, and properly stated the law. The jury did not
request “additional” instruction, but for “definitions” and “clarif[cation].”
Where “the original instructions are themselves full and complete, the court
has discretion under [Penal Code] section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for information.
[Citation.] Indeed, comments diverging from the standard are often risky.”
(People v. Beardslee (1991) 53 Cal.3d 68, 97.) Because the instructions
already provided to the jury contained the requested definitions, the court
was well within its discretion to simply refer the jury back to CALCRIM
No. 521.
Moreover, in arguing prejudice, Mehlenbacher fails to explain how
another response might have led to a different result in his favor. (Jennings,
supra, 53 Cal.3d at pp. 384–385 [judge’s ex parte response to a juror’s
question not prejudicial because “nothing in the court’s admonition to the
jury was an incorrect statement of law”].) Any objection defense counsel
53
might have made would have been properly overruled. Because the trial
court’s response was not erroneous, it “did not implicate [Mehlenbacher’s]
substantial rights.” (Id. at p. 385.) While the trial court erroneously
provided the response without notice to the parties, such error was harmless
under any standard of prejudice.
E. Alleged Cumulative Error
Even if none of the errors individually requires reversal, Mehlenbacher
contends their cumulative impact compels the judgment be reversed, because
it caused him substantial prejudice and rendered his trial fundamentally
unfair. “Under the ‘cumulative error’ doctrine, errors that are individually
harmless may nevertheless have a cumulative effect that is prejudicial.”
(In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error
is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th
1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
In our discussion, we found four errors. We found any error in
admitting the photograph of Kenneth alive and the body-worn camera video
showing Kenneth being carried down the stairs with the officer administering
CPR was harmless. (Ante, pt. III.A.6.b.i & iii.) We also concluded any
misstatements of law or evidence by the prosecutor were not prejudicial.
(Ante, pt. III.C.3 & 4.) Finally, we found the court erred in responding to the
jury’s first question outside Mehlenbacher’s presence and without notifying
and obtaining counsel’s input, but we concluded the error harmless beyond a
reasonable doubt. (Ante, pt. III.D.2.)
Having found these errors individually harmless, we reach the same
conclusion when considering the errors together: “ ‘their cumulative effect
does not warrant reversal of the judgment.’ ” (People v. Henriquez (2017)
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4 Cal.5th 1, 48.) We conclude that Mehlenbacher received a fair trial that
comported with due process.
IV.
DISPOSITION
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
BUCHANAN, Acting P. J.
KELETY, J.
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