Opinion
H047331
02-01-2023
THE PEOPLE, Plaintiff and Respondent, v. GERMAN ALEXIS ARJONA, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1646260
LIE, J.Appellant German Alexis Arjona, a member of a Sureno criminal street gang, shot and killed David Escalera, a Norteno rival. Convicted by jury of first degree murder, Arjona argues that the trial court erred by (1) permitting a codefendant to testify as a gang expert, (2) declining to answer the jury's questions about whether it needed to unanimously decide whether the prosecutor disproved specific elements of self-defense, (3) giving several unmodified pattern instructions on self-defense-CALCRIM Nos. 571, 3471, and 3472, and (4) permitting courtroom spectators to wear shirts that displayed photographs of the victim. Arjona further argues that the prosecutor committed misconduct in closing argument and that the cumulative effect of multiple errors requires reversal of the judgment. Although we consider aspects of the prosecutor's rebuttal argument and the spectators' courtroom attire to have risked injecting impermissible factors into the jury's deliberations, Arjona has not established prejudicial error on this record. We therefore affirm the judgment.
I. BACKGROUND
A. The Information
The Santa Clara County District Attorney charged Arjona and three codefendants by information with first degree murder (Pen. Code, § 187). The information also alleged that Arjona personally discharged a firearm (§ 12022.53, subd. (d)) and committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(5)). Arjona was charged and tried jointly with codefendants Juan Casas and Humberto Bravo. Codefendant Roque Mora-Villalobos testified as a prosecution witness pursuant to a plea agreement, by which he pleaded to a charge of accessory after the fact to murder and admitted a gang enhancement.
Unspecified statutory references are to the Penal Code.
Casas and Bravo are not a party to this appeal. Arjona's appellate counsel represents that a fifth named defendant, C.V., was transferred to the juvenile court for adjudication.
B. The Trial
1. Escalera's Murder
Arjona, Bravo, and Roque Mora-Villalobos were members of the Varrio Gramercy Locos (VGL), a Sureno gang. Casas, though a Sureno, was not a VGL member. VGL was based in the area around Gramercy Place in San Jose, surrounded by territory controlled by the Norteno Warlochs, a rival gang. VGL members commonly hung out at a shed to the rear of a specific apartment complex on Gramercy, between Madden to the south and Mueller to the north. Arjona lived on Madden, midway between Gramercy and Alexander.
On July 28, 2014, Mora-Villalobos, Casas, Arjona, Bravo, and C.V. were in the apartment complex parking lot with another friend who was not a Sureno. Arjona and Bravo left for Arjona's home on Madden to collect his father's SUV, heading south down Gramercy.
Escalera and his girlfriend S.G. were walking on Madden en route to a friend's apartment to go swimming. Escalera, a member of the Norteno Northern Warrior Soldiers and Warloch gangs, was armed with a gun, as was his typical practice, and S.G. knew it. As S.G. and Escalera approached Gramercy, they noticed two Sureno men, later identified as Arjona and Bravo, ahead on Madden. Deciding not to continue toward the two men, S.G. and Escalera instead turned north to walk up Gramercy.
Seeing the cluster of men in the parking lot ahead on Gramercy, S.G. became alarmed. As S.G. and Escalera neared the apartment complex on Gramercy from the south, Arjona and Bravo approached in the SUV from the north end of Gramercy. Arjona parked in the apartment's driveway, though witness accounts differed as to whether the SUV blocked the sidewalk. S.G. recognized Arjona and Bravo as the two men she and Escalera had avoided on Madden.
Arjona and Bravo got out of the SUV, both looking tense and angry. Bravo told the other Surenos that "some buster"-a derogatory term for Nortenos-was coming down the street. Arjona went back to the shed, where he kept his gun and ammunition.
Based on his experience with VGL, Mora-Villalobos understood that Escalera was going to be assaulted. M.A., a bystander sitting in a truck bed with her mother, G.A., likewise sensed there would be a fight. Escalera called someone on his phone, saying, "What up? I'm about to get jumped by some scraps." "Scrap" is a derogatory term for Surenos. He said, "I think these fools are going [to] get me."
As soon as Escalera spoke of being jumped, one of the Surenos in the driveway said loudly, "Get this fool," or "Get that n - a." Escalera briefly turned his back to the group, and Bravo and Casas started running toward him. As S.G. retreated several steps, Escalera turned back toward Bravo and Casas, now with a gun in hand. Holding the gun at waist level, pointed downward at a 45-degree angle, Escalera said, "What do you think of this, motherfuckers?"
Mora-Villalobos turned and ran. When the first shot rang out, Escalera started to run as well.
Bystander G.A. assumed that it was Escalera who had fired into the ground. M.A. saw a bullet ricochet off the ground and thought she had seen Escalera fire it. But when M.A. looked to see if anyone was hurt, she saw Arjona shooting toward Escalera. G.A. saw Arjona emerge "shooting" from an area near the apartment complex.
Like G.A. and M.A., S.G. also believed it was Escalera who had fired. S.G. was "clear" that she had seen the slide on Escalera's gun retract, but she did not see whether he hit anyone. S.G. believed that she heard Escalera fire his gun a total of three times and that she heard approximately five other gunshots while fleeing.
Mora-Villalobos looked back once to see Escalera following, with his arm extended and his gun pointed toward Mora-Villalobos. The next time Mora-Villalobos looked back, he saw Escalera get hit by gunfire, with blood spraying from the side of his head.
Mora-Villalobos found Bravo in a vacant lot on the ground trying to camouflage himself. Less than a minute later, Arjona entered the lot through a hole in the fence. Arjona was holding his pistol, which now appeared to have an empty magazine because the slide was locked back. Bravo and Mora-Villalobos eventually fled in the latter's truck, picking up Casas along the way, but Arjona left separately.
S.G. turned back and, seeing Escalera on the ground, ran back to him. The men from the apartment parking lot were gone, and she saw the SUV drive off. Blood was "everywhere" on Escalera's body. He had multiple gunshot wounds, and it was eventually determined that his spinal cord and jugular vein were severed.
2. The Investigation
Police responded to the scene within several minutes of the dispatch report and found Escalera's gun beside him in a pool of his blood. An officer pushed S.G. away from Escalera and stood over the gun to keep anyone from touching it. The gun's safety was engaged. Its chamber was empty, but the 15-round magazine held 14 rounds.
According to a firearms expert, several spent cartridge casings found at the scene had been fired a single firearm, but not Escalera's. The casings matched unused ammunition found in the parking lot shed of the Gramercy apartment building.
Mora-Villalobos, Arjona, and Bravo were subsequently arrested. While in jail, Mora-Villalobos was cellmates with Arjona and Bravo at different times, and each confided to him aspects of their participation in the shooting. Bravo said he feared that Arjona would testify that Bravo had told him to get the gun; Bravo acknowledged having told Arjona to get a gun but denied telling him to shoot or kill anyone. Arjona told Mora-Villalobos that he had gone back to the shed to find his gun, which C.V. had in his waistband; when Arjona told C.V. of the "buster" coming down the street and asked if C.V. planned to use the gun, C.V. looked scared and froze, so Arjona took the gun away from him. Arjona told Mora-Villalobos that he then "came out, heard the shooting and . . . just came out and started shooting."
3. Gang Evidence and Escalera's History
Justin Deoliveira, a criminal investigator employed by the Santa Clara County District Attorney, testified as an expert in Sureno and Norteno street gangs. According to Deoliveira, Surenos constitute a statewide gang with "hoods or subsets" in different counties and cities but are predominant in Southern California, whereas Nortenos are "the predominant Hispanic criminal street gang in northern California." Surenos and Nortenos are rivals, and acts of retaliation are common between the two gangs. Officer Matthew Santos, also deemed an expert in criminal street gangs, testified that VGL's primary activities include graffiti, auto theft, auto burglaries, shooting into occupied dwellings, attempted murder, and murder. Both experts opined that a Sureno would be expected to take violent action against a Norteno who went into Sureno territory.
According to Mora-Villalobos, about a week before Escalera's death, Mora-Villalobos had been with Bravo in the shed at the Gramercy apartment complex when they heard the sound of spray cans outside. Outside, they saw several men about to tag the area. Mora-Villalobos assumed the men were Norteno gang members. Bravo fired two or three shots toward the men, who took off in their cars. After the men left, Mora-Villalobos and Bravo saw that the men had spray-painted "fuck VGL" on the side of the street.
Several years before Escalera was killed, Mora-Villalobos and several other men got into a fight with him, and Escalera pulled out a rifle. About six months after that incident, Mora-Villalobos was with two other VGL members when someone in a van shot at them. Mora-Villalobos at the time identified Escalera as the shooter, though at trial he said he might have based his identification on statements of others. Escalera and several of his friends also assaulted Mora-Villalobos when the latter was in middle school.
Several witnesses testified about a house party in 2012 where Escalera fired a gun. Police responded to a report of a fight on October 28, 2012, and the party host asked for help clearing people from the house and backyard. Partygoers started throwing bottles over the fence, and police heard a gunshot. The host testified that he had seen Escalera fire a black handgun into the air.
C. The Verdict and Sentencing
On August 27, 2018, the jury found Arjona guilty of first degree murder (§ 187). The jury also found true the allegations that Arjona personally discharged a firearm (§ 12022.53, subd. (d)) and committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(5)). The jury acquitted Bravo of first degree murder but found him guilty of second degree murder (§ 187) and found true a firearm enhancement (§ 12022.53) and gang enhancement (§ 186.22, subd. (b)). The jury acquitted Casas of all charges.
Subsequently, the trial court sentenced Arjona to a total term of 50 years to life, composed of 25 years to life for murder and a consecutive term of 25 years to life for the firearm enhancement.
II. DISCUSSION
A. Qualifying Mora-Villalobos as an Expert
The one evidentiary objection Arjona raises on appeal is the qualification of Mora-Villalobos as a gang expert and the opinion testimony he gave in that capacity: Mora-Villalobos testified that VGL members have an obligation to back up other Surenos. He also testified he would be obligated to attack a rival gang member if the rival was seen in VGL territory. Mora-Villalobos understood that if he failed to retaliate against the rival, he would be subject to gang discipline. His testimony was thus largely cumulative of testimony by the prosecution's law enforcement gang experts. Arjona, however, argues that the trial court prejudicially erred by permitting Mora-Villalobos to offer this opinion testimony, on the ground that Mora-Villalobos had no special knowledge, skill, training, or education, and his experience as a gang member was no different than "any other gang member." We consider the trial court's admission of this testimony to be within its broad discretion.
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) "Expertise . . . 'is relative to the subject,' and is not subject to rigid classification according to formal education or certification." (People v. Ojeda (1990) 225 Cal.App.3d 404, 408.) It may be established by showing that the witness" 'has requisite knowledge of, or was familiar with, or was involved in, a sufficient number of transactions involving the subject matter of the opinion.'" (ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 294.) A witness qualified as an expert may render an opinion that is "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact" (Evid. Code, § 801, subd. (a)), and "[b]ased on a matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing . . . that is of a type that reasonably may be relied by an expert in forming an opinion upon the subject to which his testimony relates ...." (id., subd. (b)). We review for abuse of discretion a trial court's determination whether a proposed witness qualifies as an expert. (People v. Jones (2013) 57 Cal.4th 899, 949-950 (Jones).)
On voir dire of his qualifications, Mora-Villalobos, then 23, testified that his first personal experience with gangs was in middle school, when he was victimized because he was perceived to be a Sureno. At around that time, Mora-Villalobos learned about the differences between "Southern" and "Northern" gang members, and he started hanging out with "Southerners." One of Mora-Villalobos's older brothers was a VGL member, serving a prison sentence for what Mora-Villalobos believed to be a homicide. Because of his brother's experience, Mora-Villalobos refrained for several years from joining VGL but eventually was jumped into VGL at age 18, a few months before Escalera's murder. Having lived on Gramercy since he was five years old, Mora-Villalobos knew that VGL's "main area" was the area around Gramercy. Mora-Villalobos was also familiar with other Sureno gangs.
Based on this evidence, the trial court acted within its broad discretion in finding that Mora-Villalobos had knowledge and experience sufficient to assist the trier of fact in understanding a subject beyond the common experience. Arjona's claim that Mora-Villalobos's experience as a gang member was no greater than "any other gang member" misconstrues the standard: the issue is not how Mora-Villalobos's knowledge or experience compares to that of other gang members, but whether his knowledge or experience enables him to assist the trier of fact as to as subject beyond common experience. (See Evid. Code, §§ 720, 801.) The extent of his experience relative to that of other gang members goes only to the weight and not the admissibility of his testimony. (Jones, supra, 57 Cal.4th at pp. 949-950.)
Arjona further claims that ignorance the statute criminalizing participation in a gang (§ 186.22) rendered Mora-Villalobos unqualified as to the subject of his opinion testimony. Mora-Villalobos's testimony did not encompass what "criminal street gang" meant to the Legislature, only what Sureno identity meant for its members. It would have been improper for Mora-Villalobos to testify as to the lawfulness of particular conduct or status. (See, e.g., Jones, supra, 57 Cal.4th at p. 950; People v. Torres (1995) 33 Cal.App.4th 37, 45-46.)
Arjona alternatively argues that the prosecution, by proffering Mora-Villalobos as an expert in gang mores, was improperly vouching for his credibility. This argument likewise suffers from the misconception of expertise within the meaning of Evidence Code section 720: the extent and limits of Mora-Villalobos's qualifications were established in the presence of the jury through direct and cross-examination, not by prosecutorial fiat or the prestige of the prosecutor's office.
Arjona contends in his reply brief that Mora-Villalobos, by testifying as both a percipient witness and an expert witness, improperly rendered an opinion about his codefendants' mental state or motive. But Mora-Villalobos never ventured an opinion as to the specific mental states of any defendant in this case; his expert testimony was limited to his opinion that, as a VGL member, he would be expected to attack a rival gang member seen in VGL territory or to support other Surenos in the same vein.
The trial court accordingly did not abuse its broad discretion when it qualified Mora-Villalobos to testify as an expert.
B. Jury Question
Arjona argues that the trial court erred by failing to respond to two jury notes about the pattern instruction on self-defense, CALCRIM No. 505. We find no error: the replacement of one juror with an alternate required the reconstituted jury to deliberate anew.
1. Background
CALCRIM No. 505 states in pertinent part: "The defendant acted in lawful [¶] a. self-defense [¶] b. defense of another; if [¶] 1. The defendant reasonably believed that he or someone else was in imminent danger of being killed or suffering great bodily injury. [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger."
During deliberations, the jury sent the following note to the trial court: "If the jury is not unanimous on any one of the three criteria [in CALCRIM No. 505], but every individual agrees on at least one of the criteria, does that constitute a unanimous agreement on the applicability of self-defense as a whole." Asked to "clarify," the jury wrote back, "All of us do not agree on the same criteria. Example: 1) the defendant reasonably believed that . . . 2) the defendant reasonably believed . . . (3) defendant used no more force . . ." The trial court again responded, "Please provide further clarification."
On the next day scheduled for deliberations, the trial court excused one of the jurors due to illness and replaced that juror with an alternate. Although one of the remaining jurors asked about "the question that will not go away," the trial court instructed the reconstituted jury that it must "begin [its] deliberations again from the beginning" and that it "must set aside and disregard all past deliberations and begin deliberations over again."
Instructed that the jury could again submit a note if the same question arose, the juror asked, "There's no way we could address the question verbally?" The trial court responded, "Possibly, but you've got to start over again." The trial court also stated: "And then you can send [the question out], and I'll meet with the attorneys on the response." The reconstituted jury submitted no questions to the trial court and returned verdicts four days later.
2. Analysis
Arjona argues that the trial court should have provided an answer to the original jury's questions because it was obligated to do so under section 1138. Although section 1138 generally requires that a trial court respond to juror questions, it provides no authority to impute a question to a reconstituted jury. When a new juror is impaneled, section 1089 "requires that deliberations begin anew" to "[e]nsure that each of the 12 jurors reaching the verdict has fully participated in the deliberations, just as each had observed and heard all proceedings in the case." (People v. Collins (1976) 17 Cal.3d 687, 694 (Collins), superseded by statute on other grounds as stated in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19.) Thus, a trial court is required to instruct a reconstituted jury "to set aside and disregard all past deliberations and begin deliberating anew." (Ibid.) As the questions raised regarding CALCRIM No. 505 arose during the deliberative process undertaken by the original jury, the reconstituted jury was thus required to disregard those questions. In fact, answering the original jury's question would have risked implying to the reconstituted jury that it should not deliberate anew or should be influenced by the point of contention that animated prior deliberations. (See People v. Guillen (2014) 227 Cal.App.4th 934, 1030 [trial court's response to original jury's request for a readback implied that reconstituted jury should not disregard previous deliberations].) Arjona's reliance on cases like People v. Beardslee (1991) 53 Cal.3d 68 and People v. Atkins (2019) 31 Cal.App.5th 963 for the proposition that the trial court was obligated to answer this question for the reconstituted jury is therefore misplaced; neither of these cases involved a situation where the question left unanswered had been submitted before the reconstitution of the jury and its ensuing obligation to deliberate anew.
Arjona argues that even if a reconstituted jury is required to disregard past deliberations as stated in Collins, jurors cannot be expected to disregard all their previous thoughts and observations. We agree that jurors are not required, for example, to forget evidence adduced at trial. Yet the jury is required to restart the deliberation process so that all jurors have fully participated in the verdict. (Collins, supra, 17 Cal.3d at p. 694.) Accordingly, the reconstituted jury's consideration of the law and its application to the facts as the reconstituted jury finds them is not to be informed by the original jury's prior disagreement.
To the extent Arjona alternatively invites us to infer that the jury must not have submitted a question because it deemed that doing so would have been futile, we have no basis to do so: the trial court affirmed its willingness to answer the question if it should arise again in the new deliberations. The trial court did not rule out answering or addressing the question in open court, rather than in writing. An equally logical explanation for the jury's forbearance from repeating the question is that the reconstituted jury in its new deliberations determined that it had no need for further instruction.
For these reasons, we conclude that no error appears on the record. As it was the original jury, not the reconstituted jury, that submitted the questions about CALCRIM No. 505, the reconstitution of the jury ended the trial court's original obligation to provide an answer.
C. Instructional Error
Arjona argues that the trial court prejudicially erred when it instructed the jury with CALCRIM No. 571, the pattern instruction on imperfect self-defense, and CALCRIM Nos. 3471 and 3472, the pattern instructions on initial aggressors and the preclusion of self-defense for a defendant that provokes a fight or quarrel. We find no fault with the trial court's administration of these instructions.
1. Legal Principles
" '[T]he trial court must instruct on the general principles of law relevant to the issues raised by the evidence.'" (People v. Smith (2013) 57 Cal.4th 232, 239.) We review de novo whether the jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) We examine the challenged instruction "in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
Moreover, under" 'appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of case ...." (People v. Bolden (2002) 29 Cal.4th 515, 558.) "But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence." (Ibid.) However, a defendant bears the burden of requesting a pinpoint instruction; a trial court has no sua sponte duty to provide one. (People v. Gutierrez (2009) 45 Cal.4th 789, 824 (Gutierrez).)
" 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' [Citation.] But that rule does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law." (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) Moreover, a failure to object to instructional error will not result in forfeiture if the error affects the defendant's substantial rights. (§ 1259; People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell).)
2. CALCRIM No. 571: Imperfect Self-Defense
Arjona did not object to the instruction as given on the ground now raised on appeal. As Arjona's claim is that the trial court incorrectly stated the law and that such an error affected his substantial rights, however, we find no forfeiture and proceed to address the merits of his claims. (§ 1259; Mitchell, supra, 7 Cal.5th 561, 579.)
"Imperfect self-defense is the killing of another human being under the actual but unreasonable belief that the killer was in imminent danger of death or great bodily injury. [Citation.] Such a killing is deemed to be without malice and thus cannot be murder." (People v. Booker (2011) 51 Cal.4th 141, 182.) Accordingly, CALCRIM No. 571 provides that an otherwise intentional killing constitutes voluntary manslaughter if a defendant killed a person in imperfect self-defense or imperfect defense of another. According to CALCRIM No. 571, "[t]he difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable." Thus, CALCRIM No. 571 provides in pertinent part that imperfect self-defense applies if: "The defendant acted in imperfect self-defense or imperfect defense of another if: [¶] 1. The defendant actually believed that he or his friends were in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] 3. At least one of those beliefs was unreasonable."
We understand Arjona to argue that CALCRIM No. 571 is defective because it fails to instruct the jury that the following unreasonable beliefs negate malice: (1) an unreasonable belief in the necessary use of deadly force or (2) an unreasonable belief in the amount of force necessary to repel an attack. We find no instructional error.
Arjona asserts in his opening brief that CALCRIM No. 571 is erroneous in what he frames as two distinct ways: (1) CALCRIM No . 571 did not instruct the jury that "[a] defendant could qualify for voluntary manslaughter under imperfect self-defense if he reasonably believed the first two elements [described under CALCRIM No. 505], but if he unreasonably believed the amount of force he used was necessary"; and (2) "[I]t did not allow the jury to convict Appellant of voluntary manslaughter under the theory of imperfect self-defense if he actually and reasonably held the first two beliefs [described under CALCRIM No. 505], but if he actually but unreasonably believed that the amount of force he used was necessary." There arguments appear to be restatements of each other.
As to the first of Arjona's asserted defects, the pattern instruction does inform the jury that one who kills in the actual but unreasonable belief in the necessity of deadly force is guilty of voluntary manslaughter. As to the second, to the extent Arjona's argument may be that imperfect self-defense applies when the amount of force used to repel an attack is disproportional to the defendant's unreasonable belief as to the amount of danger present, a similar argument was rejected by the First Appellate District in People v. Morales (2021) 69 Cal.App.5th 978 (Morales).)
In Morales, the defendant, like Arjona here, argued that CALCRIM No. 571 was deficient because "it failed to tell the jury that a homicide also qualifies as voluntary manslaughter and not murder when a defendant's beliefs in danger and the need to use deadly force are reasonable but the sort of deadly force he uses is excessive and more than necessary to repel the attack." (Morales, supra, 69 Cal.App.5th at p. 995.) Morales observed that" 'not every unreasonable belief will support a claim of imperfect self-defense'; rather, a defendant can claim imperfect self-defense based only a belief 'that, if reasonable, would support a claim of perfect self-defense.'" (Ibid., quoting People v. Valencia (2008) 43 Cal.4th 268, 288 (Valencia).) For example, the California Supreme Court in Valencia, supra, 43 Cal.4th at page 288, observed that "if a defendant unreasonably believe[s that someone was] going to punch him in the arm and stab[s] him to death in response, this belief would not support a claim of imperfect self-defense for the reason that the belief, even if reasonable, would not permit the use of deadly force." (Id. at p. 288, fn. 6.) Citing to this example from Valencia, the Morales court concluded that "[i]n such a scenario, the use of force would be excessive but still would not reduce a homicide to voluntary manslaughter." (Morales, supra, at p. 995.)
Arjona argues that the argument raised in Morales is different than the one he raises here on appeal. He argues that Morales considered that "there was no right to use deadly force in any type of self-defense, to defend against a robbery." Arjona, however, misreads Morales, which discussed whether use of excessive force that was more than necessary to repel an attack gives rise to imperfect self-defense. (Morales, supra, 69 Cal.App.5th at p. 995.)
Likewise, if Arjona unreasonably believed that deadly force was necessary, but he applied an excessive amount of deadly force that was disproportionate to the danger he unreasonably believed he was in, then he cannot claim imperfect self-defense. (Morales, supra, 69 Cal.App.5th at p. 995; Valencia, supra, 43 Cal.4th at p. 288, fn. 6.) Nor does an actual but unreasonable belief at the moment of his first shot necessarily immunize subsequent lethal acts thereafter. (See, e.g., People v. Hardin (2000) 85 Cal.App.4th 625, 634, fn. 7 [noting that the defendant, who relied on imperfect self-defense, could no longer entertain the belief that the victim constituted an imminent and deadly peril after the defendant had straddled the victim on the floor]; People v. Uriarte (1990) 223 Cal.App.3d 192, 198 [no error in failing to instruct jury on imperfect self-defense, in part because defendant shot one of the victims after the victim was already incapacitated].)
Arjona relies on a statement in People v. Wells (1949) 33 Cal.2d 330, 345, superseded by statute on other grounds as stated in People v. Saille (1991) 54 Cal.3d 1109-1112, to the effect that there is no malice aforethought if a defendant "acted only under the influence of fear of bodily harm, in the belief, honest though reasonable, that he was defending himself from such harm by the use of a necessary amount of force ...." (Ibid.; see also People v. Flannel (1979) 25 Cal.3d 668, 675, superseded by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768, 777; People v. Elmore (2014) 59 Cal.4th 121, 137.) Under Wells, imperfect self-defense applies if a defendant had an actual, though unreasonable, belief that he used the necessary amount of force. Arjona thus seems to distinguish the unreasonable belief as to the amount of force necessary from the unreasonable belief as to the necessity of deadly force as used in CALCRIM No. 571, which states that imperfect self-defense applies if a defendant had an unreasonable belief that "the immediate use of deadly force was necessary to defend against the danger."
In a homicide trial, this distinction would appear to be one without a difference. A homicide defendant-at least where, as here, the defendant's use of deadly force as the cause of the victim's death is undisputed-who has an actual, but unreasonable belief in the necessity of the amount of force used has, as a matter of course, an actual but unreasonable believe in the necessity of deadly force. Furthermore, if the jury concluded that Arjona unreasonably believed that the immediate use of deadly force was necessary, it was already instructed under CALCRIM No. 571 that imperfect self-defense applies.
Based on the foregoing, we reject Arjona's argument that CALCRIM No. 571 incorrectly states the law. We therefore need not reach Arjona's derivative argument that instructional error violated his constitutional rights to due process and to a jury trial.
3. CALCRIM Nos. 3471 and 3472: Initial Aggressor and Self-Defense
CALCRIM No. 3471 provides: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting [¶] AND [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting to communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
CALCRIM No. 3472 provides: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force. [¶] However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to stop fighting or communicate the desire to stop to the opponent, or give the opponent the chance to stop fighting."
Arjona argues that the trial court erred when it instructed the jury with CALCRIM No. 3471, the instruction on the right to self-defense for an initial aggressor, and CALCRIM No. 3472, the instruction precluding self-defense if a defendant provokes a fight or quarrel. Arjona claims that the instructions as given misstated the law because the trial court failed to clarify that CALCRIM Nos. 3471 and 3472 applied only if the jury found that Arjona had the same intent as his codefendants, Bravo and Casas, who allegedly initiated the conflict with Escalera. Considering the instructions as a whole, we find no instructional error.
a. Analysis
Arjona claims that CALCRIM Nos. 3471 and 3472 erroneously stated the law because the instructions (1) failed to clarify that they applied only if the jury determined that Arjona had the same intent as his codefendants who initiated the conflict with Escalera and (2) failed to state that they applied only if the jury concluded he was aiding and abetting his codefendants. We see no error in the trial court's instructing the jury as to an initial aggressor's right to self-defense.
First, we consider whether the trial court erred by failing to clarify that Arjona must have shared the same intent as his codefendants when they allegedly initiated the fight with Escalera. In People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), the California Supreme Court held that "outside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator." (Id. at p. 1118.) Thus," '[w]hen the offense charged is a specific intent crime, the accomplice must "share the specific intent of the perpetrator"' "-that is, "when guilt does not depend on the natural and probable consequences doctrine . . . the aider and abettor must know and share the murderous intent of the actual perpetrator." (Ibid.)
The instructions as given were in accord with McCoy. CALCRIM No. 3471 specifically applies only to a defendant "who starts a fight." Likewise, CALCRIM No. 3472 applies only if a defendant "provokes a fight or quarrel." The trial court also instructed the jury: "You must separately consider the evidence as it applies to each defendant. You must decide each charge for each defendant separately." (CALCRIM No. 203.) With respect to the theory that Arjona may have been guilty based on an uncharged conspiracy, the trial court also instructed the jury that for a defendant to be a member of an uncharged conspiracy, he or she must have "intended to agree and did agree with one or more of the other defendants" to commit murder or assault with force likely to inflict great bodily injury, and the defendant and one or more of the other members of the conspiracy intended that one or more of them would commit murder or assault. (CALCRIM No. 416.) CALCRIM No. 416 also specifically provided that "[t]he People must prove that the members of the alleged conspiracy had an agreement and intent to commit Murder or Assault with force likely to inflict great bodily injury."
Read together, the instructions require the jury to examine the evidence and determine its applicability as to each defendant in the first instance. And when examining whether Arjona was an initial aggressor, the jury could have concluded, as argued by the prosecutor, that Arjona himself initiated the fight by obtaining the gun and firing the first shot, for example, or that Arjona was a part of the uncharged conspiracy and thus shared with his codefendants an intent to assault or kill Escalera.
Considered in context, the instructions do not support Arjona's contention that the jury would erroneously apply CALCRIM Nos. 3471 and 3472 to him even if it concluded that he was neither an initial aggressor nor intended as part of an uncharged conspiracy to assault Escalera. Under the theory of either an uncharged conspiracy or direct aiding and abetting, the jury was required to find that Arjona had the specific intent to commit assault or murder in order to convict him. We must presume that the jury understood and correlated all instructions given. (People v. Vang (2009) 171 Cal.App.4th 1120, 1129 (Vang).)
As the jury found Arjona guilty of first degree murder, we presume that it did not rely on a theory of aiding and abetting based on the natural and probable consequences doctrine, because the trial court specifically instructed per CALCRIM No. 403 that the natural and probable consequences theory applied only to second degree murder.
Moreover, as the Attorney General points out, Arjona's argument is more properly characterized as a claim that the trial court should have provided a pinpoint instruction on the crux of his defense-that there was no evidence he was part of the uncharged conspiracy or that he was part of the initial fight. Yet Arjona did not request a pinpoint instruction, and the trial court was not obligated to provide one sua sponte. (Gutierrez, supra, 45 Cal.4th at p. 824.)
Second, we find no merit in Arjona's argument that the trial court should have instructed that CALCRIM Nos. 3471 and 3472 applied only if the jury concluded that he was aiding and abetting his codefendants, Bravo and Casas. Arjona's claim incorrectly characterizes the prosecutor's theory of Arjona's guilt and the inapplicability of self-defense as resting solely on aider and abettor liability. The prosecutor specifically argued the defendants were liable for murder based on an uncharged conspiracy-Arjona had driven the SUV a longer route up Alexander to "get the drop" on Escalera, Bravo announced to the rest of the group that a "buster" was coming, and Bravo later told Arjona to get a gun. The prosecutor also argued that each of the codefendants were "initial aggressors" in their own way. Arjona's contrary argument on appeal presupposes that only Bravo and Casas were aggressors and does not account for evidence in the record from which the jury could conclude he, too, was a party to instigating the conflict: Arjona drove Bravo back to the apartment complex, by S.G.'s account, parked on the sidewalk in her and Escalera's path, tacitly agreed with Bravo to fetch his gun, and thereafter took the gun away from one insufficiently committed to using it; knowing that Arjona was close at hand and soon armed, Bravo then accosted Escalera. The forensic and crime scene evidence suggested that it was only Arjona who fired, that he fired multiple times-once while Escalera had his own gun pointed toward the ground-and that Escalera never even released the safety on his gun.
Although there was conflicting evidence in the record about whether Escalera fired first or at all, evaluating the evidence is a task for the jury. On this record, the jury could legitimately find Arjona to be an initial aggressor. Accordingly, instructing the jury that CALCRIM Nos. 3471 and 3472 would apply only if Arjona was aiding and abetting Bravo and Casas when they allegedly initiated the fight would have impermissibly" 'invite[d] the jury to draw inferences favorable to the defendant . . . from specified items of evidence on a disputed question of fact.'" (People v. Santana (2013) 56 Cal.4th 999, 1012.)
For these reasons, we conclude that the trial court did not err when it instructed the jury with CALCRIM Nos. 3471 and 3472 without providing further clarification. We therefore need not reach Arjona's derivative argument that instructional error violated his constitutional rights to due process and to a jury trial.
D. Prosecutorial Error
Arjona next argues that the prosecutor committed misconduct multiple times during closing argument when he misstated the law, mischaracterized the evidence, disparaged defense counsel, and improperly appealed to the sympathy and passion of the jury. Many of the claims Arjona now raises he did not preserve in the trial court, but we nonetheless reach the merits, given his alternative claim that any forfeiture indicated ineffective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 697.) The prosecutor's misstatements of the law, disparagement of defense counsel, and reference to the impact of Escalera's death on his family were improper, but-on this record-we conclude that these errors did not prejudice Arjona, whether considered in isolation or cumulatively.
1. Legal Principles
"[T]he term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Centeno (2014) 60 Cal.4th 659, 667.) Bad faith is not required. (Id. 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." (People v. Morales (2001) 25 Cal.4th 34, 44.) "Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct 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." (Ibid.)
Although a prosecutor" 'enjoys wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom[,]'" it is prosecutorial error to misstate the law or the evidence. (People v. Fayed (2020) 9 Cal.5th 147, 204 (Fayed).) It is also prosecutorial misconduct to disparage defense counsel in front of the jury (People v. Young (2005) 34 Cal.4th 1149, 1193) or to otherwise "appeal to the passions and prejudices of the jury," which is"' "out of place [in] an objective determination of guilt." '" (People v. Seumanu (2015) 61 Cal.4th 1293, 1342 (Seumanu).) But "any allegedly improper statements by the prosecutor must be considered in light of the entire argument." (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 789 (Holmes).)" 'A defendant asserting prosecutorial misconduct must . . . establish a reasonable likelihood the jury construed the remarks in an objectionable fashion.'" (Fayed, supra, 9 Cal.5th at p. 204.)
In order to preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection to the challenged statement and ask the trial court to admonish the jury to disregard the improper statements. (Fayed, supra, 9 Cal.5th at p. 204.) A failure to object below will be excused if the record reflects that either an objection or admonition would have been futile, or if the admonition would not have cured the harm stemming from the misconduct. (Ibid.) But the bar for establishing futility is high. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 821 (Hill) [excusing failure to object to all instances of a "constant barrage of . . . unethical conduct" creating a "poisonous" atmosphere, where the trial court expressed its "wrath" by comments before the jury "suggesting [defense counsel] was an obstructionist, delaying the trial with 'meritless' objections"].)
"Although we generally review claims of prosecutorial error for an abuse of discretion [citation], we independently examine what the law is [citations] and 'objective[ly]' examine how a 'reasonable juror' would likely interpret the prosecutor's remarks [citations], bearing in mind that' "we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]"' [Citation.]" (People v. Collins (2021) 65 Cal.App.5th 333, 340.)
Even where a prosecutor commits error, reversal is not required unless a defendant has suffered prejudice. "Error with respect to prosecutorial misconduct is evaluated under Chapman v. California (1967) 386 U.S. 18 to the extent federal constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d 818 [(Watson)], if only state law issues were involved." (People v. Fernandez (2013) 216 Cal.App.4th 540, 564 (Fernandez); People v. Wallace (2008) 44 Cal.4th 1032, 1070 (Wallace).) Under Watson, reversal is required when it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.)
2. Misstatement of Law on Initial Aggressors
Arjona argues that the prosecutor committed misconduct when he misstated the law about self-defense and initial aggressors during closing argument. He cites to multiple instances where he claims that the prosecutor erroneously stated that self-defense never applies to initial aggressors. Some of these instances were fair argument applying the law to the evidence, and defense counsel accordingly did not preserve the claims by objection. As for the rest, we conclude that the prosecutor's misstatements of the law were harmless in view of his correction of those misstatements.
a. Background
Initially, during closing argument, the prosecutor asserted that "the self-defense law absolutely does not apply to initial aggressors." The trial court overruled defense counsel's objection that this misstated the law. Immediately after this ruling, the prosecutor stated, "I'm going to go into detail that a defendant's wrongful conduct, when that creates circumstances that give rise to the victim acting in self-defense, the initial aggressor doesn't get self-defense; even if it's legitimate self-defense, doesn't apply to you."
Later, the prosecutor asserted: "Even if you think it was an immediate threat and he used reasonable force and it was necessary, even if you think self-defense otherwise applies, the initial aggressor instruction precludes someone from claiming self-defense. [¶] There is no self-defense or imperfect self-defense for aggressors. If you find . . . that the defendants were the initial aggressors, your verdict is murder. [¶] There is no justification or excuse when you are the initial aggressor. There [are] two types of aggression." Defense counsel again objected, and the trial court held an unreported sidebar.
Immediately following the sidebar, the prosecutor clarified that by "initial aggressor," he meant that "all three of these men were initial aggressors in their own way." The prosecutor then stated that "[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force or self-defense" and that imperfect self-defense did not apply when a "defendant, through his own wrongful conduct, created circumstances that justify the victim's use of force." The prosecutor further acknowledged: "There is an exception to the initial aggressor rule . . . if the defendant used non-deadly force and the victim responded with such sudden and deadly force that the defendant could not withdraw. So if the initial aggressor used non-deadly force, but then the victim allowed him to withdraw, then they can claim self-defense."
After the prosecutor finished his closing argument, the trial court clarified some of the objections with defense counsel. Defense counsel stated that she remembered that the prosecutor had commented that "initial aggressors do not have the right to self-defense," which misstated the law. While reviewing the transcript of the proceedings, defense counsel noted that the prosecutor had not initially "cleared it up" at the time, but "he did clear it up eventually" as he finished his argument.
The prosecutor thereafter argued that the initial aggressor doctrine was inapplicable to the three defendants but based the argument on his view of the evidence and the inference that Escalera did not suddenly escalate a nondeadly confrontation into a deadly confrontation. The prosecutor argued, "If you get back there and say, '[Escalera] never fired his gun. All he did was pull it out and point it at the ground to deter an attack by the defendants,' they don't get self-defense because they're initial aggressors. [¶] Their wrongful conduct contributed to it. Certainly not self-defense, because they created it, and that's it." The prosecutor further argued that it did not matter whether Escalera fired a gunshot into the ground, and that "it doesn't matter, because they can't get past the wrongful conduct initial aggressor law. So even under the defense theory, the defendants are guilty." Defense counsel did not object to these arguments.
b. Analysis
We see nothing objectionable in the prosecutor's latter comments-that Escalera never fired his gun, and that it did not matter whether Escalera fired a gunshot into the ground-which were fair arguments based on the evidence. (See People v. Ramirez (2015) 233 Cal.App.4th 940, 950; Fayed, supra, 9 Cal.5th at p. 204 [noting prosecutor's "wide latitude" to make fair comment on evidence].) To the extent these included a brief and therefore elliptical reference to the initial aggressor instructions, we see no risk that a reasonable juror would construe them in an objectionable fashion.
The prosecutor's categorical legal assertions-that "[t]here is no self-defense or imperfect self-defense for aggressors"; "the initial aggressor doesn't get self-defense"; and "self-defense law absolutely does not apply to initial aggressors"-are another matter. "Where, as here, the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is' "a reasonable likelihood the jury understood or applied the [prosecutor's remarks] in an improper or erroneous manner." [Citations.]'" (People v. Collins, supra, 65 Cal.App.5th at p. 340.)
That the prosecutor initially misstated the applicable law is clear. (See People v. Ramirez, supra, 233 Cal.App.4th at p. 947.) Taking the misstatements in isolation, the jury could initially have construed them in an objectionable manner. But considering the misstatements in the context of the entire argument (see Holmes, supra, 12 Cal.5th at p. 789), we see no reasonable likelihood that the prosecutor thereby misled the jury: it would have been apparent to the jury from the prosecutor's eventual correct restatement of the law and clarification of his argument that his initial statements had strayed too far from the instructions administered by the court. The fact of his self-correction would have been apparent to the jury, prefaced as it was by defense counsel's objection and the unreported sidebar.
Even assuming a reasonable likelihood that the jury nonetheless took the prosecutor's initial misstatements as accurate, his error would have been harmless. In addition to prosecutor's eventual clarification and defense counsel's own correct statements about the law regarding initial aggressors, the trial court properly instructed the jury on the law regarding initial aggressors and further instructed the jury that in the event of any conflict between the instructions and the attorneys' argument, the jury was to follow the instructions as administered by the court. (See People v. Boyette (2002) 29 Cal.4th 381, 436.) Nothing in the record here undermines our customary presumption that the jury followed these instructions. (Vang, supra, 171 Cal.App.4th at p. 1129.)
During closing argument, defense counsel argued that "even if there is some evidence of . . . Arjona being involved with an initial aggressor, if the defendant uses only non-deadly force and the opponent responds with such sudden and deadly force [that] the defendant could not withdraw, he has the right to defend himself with deadly force. That's the law."
Accordingly, we conclude that the prosecutor's initial misstatements of the law on initial aggressors did not constitute prosecutorial error. (See Fayed, supra, 9 Cal.5th 147, 204.)
3. Claim that Escalera was Entitled to Use Deadly Force in Self-Defense
Arjona argues that the prosecutor also committed misconduct when he argued that Escalera was entitled to use deadly force in self-defense when he was approached by Bravo and Casas. He argues that the prosecutor's misconduct shifted the burden of proof because it required the defendants to establish that Escalera did not have the right to selfdefense. We find no error.
a. Background
The prosecution consistently disputed that Escalera ever discharged his firearm, relying on the crime scene evidence and forensic firearm and ballistics analysis. Given the contrary testimony of its percipient witnesses, however, the prosecutor in the alternative argued against the legal significance of that testimony, if believed. Specifically, the prosecutor argued that Escalera had tried to avoid the defendants when he walked down Madden, and his encounter with them on Gramercy threatened from the outset to be deadly. The prosecutor argued, "[Escalera] was allowed to respond with deadly force. He could have pulled out his gun. At that moment if he had a round in the chamber and the safety was off, legally, [Escalera] could have pulled out his gun and blown these guys away." Defense counsel objected on the ground that this statement misstated the law, which the trial court overruled.
Following the objection, the prosecutor continued his argument by stating: "Based on the self-defense instructions you received, [Escalera] walking down the street is not an immediate threat. Being surrounded by a bunch of gangsters that said 'get that fool,' start running at you to assault you, and then start shooting at you, that's an immediate threat. [¶] He would have been legally permitted-it would have been legal and lawful for him. He had self-defense. He could have shot them. Certainly after Mr. Arjona shot and missed, [Escalera] could have shot Mr. Arjona, but he didn't." This time, defense counsel made no objection.
Finally, the prosecutor commented on Escalera's ability to claim self-defense a third time when he argued: "But even if [Escalera] fired his gun at the ground, there is still no defense because of the initial aggressor doctrine discussed above. There are multiple gangsters that were going to jump him and were going to inflict great bodily injury and death. He had a right to use deadly force under the self-defense law." Defense counsel did not object to this argument.
b. Analysis
Treating Arjona's claims as adequately preserved, we consider the prosecutor's comments to be a fair comment on the evidence. (See Seumanu, supra, 61 Cal.4th a p. 1363.) Given his wide latitude for argument, the prosecutor's reference to how Escalera could have responded with deadly force when approached by Bravo and Casas was not an impermissible inference from the evidence-that the defendants at the outset appeared intent on a deadly confrontation with Escalera, such that Escalera's purported use of deadly force did not permit defendants to claim of either self-defense or imperfect self-defense.
Arjona argues that the prosecutor's argument was misconduct largely because Bravo and his companions were unarmed, and there was some evidence from which the jury might have inferred that Escalera was instigating the conflict. Arjona thus argues that "no reasonable man" in Escalera's position would have believed that he was in imminent danger of being killed or suffering from great bodily injury under the circumstances. The availability of contrary inferences and arguments, however, does not establish that the prosecutor committed misconduct or misstated the law when articulating his evidence-based theories of the case. Although misstating or mischaracterizing the evidence is misconduct, arguing a reasonable inference is not. (Hill, supra, 17 Cal.4th at p. 823.)
Finally, Arjona argues that the prosecutor committed misconduct because arguing that Escalera was entitled to self-defense without a pinpoint instruction applying the court's self-defense instructions to Escalera improperly shifted the burden of proof from the prosecutor to the defense. Without an instruction, Arjona argues that the defendants would have been obligated to prove that Escalera did not have the right to self-defense.
It is prosecutorial error to improperly shift the burden of proof to the defendant. (People v. Osband (1996) 13 Cal.4th 622, 696.) But Arjona's interpretation of the prosecutor's argument is not a reasonable one. The prosecutor at no point suggested that it was the defendants' burden to prove that Escalera had no right to self-defense. Considered in context, we see nothing in what the prosecutor said that could fairly be construed as undermining the jury's comprehension that the prosecution bore the burden of disproving the defense theory that Arjona fired in self-defense or defense of another.
To the extent Arjona predicates his claim on the absence of a pinpoint instruction directing the jury in its consideration of a victim's resort to self-defense, it was at the urging of defense counsel that the trial court declined the prosecutor's request that it instruct the jury on self-defense as applied to Escalera. (See People v. Harris (2008) 43 Cal.4th 1269, 1293 [doctrine of invited error bars appellate challenge when defendant has made conscious and deliberate choice to request jury instruction].) Moreover, the lack of a jury instruction on self-defense as applied to Escalera did nothing to shift the burden of proof away from the prosecutor: the jury was expressly instructed that the prosecutor bore the burden of proving beyond a reasonable doubt that the defendants were not acting in either perfect self-defense or imperfect self-defense.
4. Disparagement of Defense Counsel
We consider many of the prosecutor's remarks in his rebuttal argument to be improper and reasonably likely to be construed in an objectionable manner, but our review of the record discloses no actionable prejudice from the errors.
a. Background
During his rebuttal argument, the prosecutor repeatedly called the jury's attention to his dim view of defense counsel's personal credibility.
First, the prosecutor characterized defense counsel as "two-faced in their reliance on witnesses." He went on to explain: "I told you in my closing argument that they were going to say that the things that [Mora-Villalobos] said that were helpful for them, they said[,] 'oh yeah, that's the truth,' and the things that [Mora-Villalobos] said that hurt them, 'no that's not the truth.' [¶] And the same thing with [S.G.] All the things that [S.G.] said that were helpful for them, 'oh yeah. That was absolutely the truth,' and all the things that hurt them, 'oh, she was lying about that.' "
In a similar vein, however, the prosecutor himself had relied on aspects of the testimony of prosecution witnesses S.G. and G.A., despite their account of Escalera having fired first, which he rejected as unreliable.
Second, the prosecutor argued that defense counsel intentionally misrepresented the evidence. For example, the prosecutor argued, "One of the attorneys suggested that Bravo asked [Escalera], 'Why are you doing this?' or, 'Why are you here?' I didn't hear any evidence that Mr. Bravo posed that question to [Escalera] at all." Rather than move on to other perceived defects in the defense argument, the prosecutor followed by querying, "So why would they say that if no one said it? Because the defense knows that they have no evidence to support their position; so they'[ve] just got to make it up."
What defense counsel had actually said was, "They didn't move to attack [Escalera] at that time probably because they saw exactly what everybody-what [Mora-Villalobos] says he saw and probably because [Bravo] was just trying to defuse the situation or get him to maybe turn around or just, 'What are you doing? What are you doing here? Why are you doing this?' "
Disputing defense counsel's argument that S.G. had been concerned that Escalera would "start something," possibly a fight, with the defendants, the prosecutor asserted: "This, again, is an attempt by the defense to twist words and lie as to what actually was said.... [¶] [S.G.] never said she was worried he was going to start something. Never said that, never. But they said it, the defense said it. Doesn't make it true."
S.G. had testified that after the SUV pulled up on Gramercy, she asked Escalera to turn back: she "was concerned that something might happen because [Escalera] had a gun[.]"
Third, the prosecutor argued: "The defense refused to concede that [Escalera] never fired that gun. Absolutely refused. And that really undermines their credibility, ladies and gentlemen."
Two prosecution eyewitnesses-S.G. and G.A.-testified that Escalera fired his gun and fired first: S.G. was "clear" that she saw the slide of Escalera's gun draw back as he fired; G.A. believed Escalera fired "almost instantly . . . right after" drawing his weapon. Two others-Mora-Villalobos and M.A.-testified that Escalera was, at a minimum, poised to fire at the time they heard the first shot, which they took to have been by him.
And fourth, the prosecutor argued: "The defense in this case is a conspiracy theory. They're talking about witnesses [that] are tampering with the gun. There is a missing pool and a missing bathing suit. [Escalera] shot that gun despite no physical evidence to support it, and [Escalera] and [S.G.], they had this nefarious motive to be on Gramercy. [¶] It's all conspiracy theory, ladies and gentlemen, without any evidence. So if you believe that, ladies and gentlemen, if you believe these ridiculous arguments made by the defense, then you might as well believe that's not Buzz Aldrin standing on the moon. [¶] Ladies and gentlemen, we weren't there when Neil Armstrong and Buzz Aldrin landed on the moon. But we all know they landed on the moon." Casas's counsel objected to this line of argument but did not request a curative instruction.
After the jury retired to deliberate, defense counsel joined in Casas's counsel's objection to the moon-landing analogy. Casas's counsel argued only that the analogy "water[ed] down the burden of proof." The trial court disagreed, finding no error. Each defense attorney took issue with what they depicted as the disparaging intemperance of the prosecutor's rebuttal argument and moved for a mistrial, which the trial court denied after a lengthy and apparently tumultuous hearing, finding no error.
The prosecutor defended his approach on the ground that he was "wiped out" and defense counsel were "frustrating," "absolutely aggravating to no end," and, in the case of Arjona's counsel, "unethical."
b. Analysis
Preliminarily, we note that because defense counsel made no contemporaneous objection or request for curative admonition in response to these arguments, Arjona has forfeited his claims that the disparagement amounted to prosecutorial error. (Fayed, supra, 9 Cal.5th at p. 204.) We understand defense counsel's later explanation of the difficulty and perceived futility of pressing for a ruling during their opponent's closing argument. But the California Supreme Court has unambiguously held this to be a prerequisite to preservation of the claim for appeal. (See Fayed, supra, 9 Cal.5th at p. 204; see also People v. Bemore (2000) 22 Cal.4th 809, 845-846 (Bemore) [defense counsel did not make timely and contemporaneous objection when challenged comments took place during an afternoon session and objection was not made until midmorning the following day].) Because all defendants moved for a mistrial on the basis of prosecutorial error after the jury had begun deliberating, however, and because of the persistence of the prosecutor's focus on defense counsel's credibility, we address the merits.
It is prosecutorial error to "engage in such forbidden tactics as accusing defense counsel of fabricating a defense or factually deceiving the jury." (People v. Zambrano (2007) 41 Cal.4th 1082, 1154 (Zambrano), disapproved of on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Woods (2006) 146 Cal.App.4th 106, 116-117 [reversing conviction where prosecutor argued that defense witnesses were "conjured up" for trial].) Although a prosecutor may make a fair comment on the persuasiveness of defense counsel's closing argument, it is error to take aim at counsel personally. (Zambrano, supra, 41 Cal.4th at p. 1155; but see People v. Stanley (2006) 39 Cal.4th 913, 952 (Stanley) [no misconduct when prosecutor told the jury that defense counsel" 'imagined things that go beyond the evidence'" and had "told them 'a bald-faced lie' "]; compare People v. Young (2005) 34 Cal.4th 1149, 1193 [prosecutor's characterization of defense counsel's argument as" 'idiocy'" was fair comment on argument].)
The harm to be avoided is not the demise of Chesterfieldian politeness, the erosion of courtroom decorum, or injury to the tender sensibilities of seasoned litigators; it is the displacement of the jury's focus from the evidence to the asserted ethical deficiencies of the defense attorney-often, as here, the only voice a defendant has at trial-as the defendant's proxy. (See Bemore, supra, 22 Cal.4th at p. 846 ["attacks on counsel's credibility risk focusing the jury's attention on irrelevant matters"].) Personal comments about defense counsel in the presence of the jury run the "obvious risk of prejudicing the jury towards [counsel's] client." (Hill, supra, 17 Cal.4th at p. 821.)
First, the prosecutor's reference to defense counsel as "two-faced" cast an argument ostensibly about the logic of their argument as a comment on their personal character. A first such comment in isolation a jury might be unlikely to construe in an objectionable fashion. But the prosecutor's continuing variations on the theme of defense counsel's subjective intentions and perfidy-"twist . . . and lie," they know "they have no evidence, so they['ve] just go to make it up," "really undermines their credibility"-at a minimum confirm that the cumulative personal frustration the prosecutor later acknowledged was in fact eroding the professionalism of his presentation to the jury.
The Attorney General's suggestion that the prosecutor's "two-faced" comment targeted only the defense theory and not the attorneys is implausible in context, given the prosecutor's initial and repeated focus throughout his rebuttal on the attorneys themselves, extending even to comment on the demeanor of Casas's counsel as compared with his own. Because the tactic the prosecutor derided was also one which he himself liberally employed-discounting, for example, his own eyewitnesses' testimony that Escalera fired his gun and fired first-it is also difficult to construe his castigation of counsel personally for the same approach as a fair comment on the evidence. After all, it is precisely because of the likelihood that witness testimony is fallible that trial courts, as here, routinely to instruct jurors not to "automatically reject testimony just because of inconsistencies or conflicts" and to "[c]onsider whether the differences are improper or not" (CALCRIM No. 226); even where the jury concludes that a witness was willfully false as to a material fact, the jury remains free to reject only those portions of the testimony it considers false and to accept the rest (CALCRIM No. 226 ["if you think the witness has lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest"]. The prosecutor, to be sure, was free to note the inconsistency in the defense characterization of a given witness's reliability- potentially at his peril, given his comparable approach to demonstrably fallible witnesses-without personalizing the argument.
The prosecutor's comment that defense counsel had attempted to "twist words and lie" likewise recast arguments ostensibly about the merits as conclusions about defense counsel themselves and was therefore not merely responsive to the defense argument. (See Zambrano, supra, 41 Cal.4th 1082, 1154.) We note as well that assailing the credibility of defense counsel for the failure to concede aspects of the prosecution case is particularly problematic where, increasingly, reviewing courts have constrained counsel's discretion to concede lesser offenses and even discrete elements of uncharged offenses over the defendant's objection. (See, e.g., People v. Bloom (2022) 12 Cal.5th 1008, 1036-1042; People v. Flores (2019) 34 Cal.App.5th 270, 280-283.)
The prosecutor's reference to the moon landing, however, was not misconduct. During closing argument, the prosecutor" '" 'may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history, or literature.'" '" (Stanley, supra, 39 Cal.4th at pp. 951-952.) The prosecutor's characterization of the defense theory as a "conspiracy theory" also did not disparage defense counsel. In context, the prosecutor's comments are properly understood as an attack on the presentation of the defense's case and a fair expression of the prosecutor's view that scant evidence supported the theory that someone had tampered with Escalera's gun while police were at the scene-not that the defense had fabricated evidence or that defense counsel had conspired to mislead. The prosecutor's argument that the defense's theory lacked little support does not amount to misconduct. (See Zambrano, supra, 41 Cal.4th at p. 1155.)
Notwithstanding the ad hominem character of the prosecutor's other comments, we find the error to be harmless: on this record, it is not reasonably probable that the jury would have reached a different verdict in the absence of the remarks. (See Fernandez, supra, 216 Cal.App.4th at p. 564.) We note that the substantive defect in each of the prosecutor's improper arguments was patent and unlikely to have been lost on the jury. Given the duration of the trial and the high stakes for the parties, the erosion of professional relations between the attorneys was a phenomenon that-though regrettable, avoidable, and potentially sanctionable-we expect the jury would have neither missed nor misinterpreted as a reflection on the merits. On this record, we detect very little risk that the jury could have been misled by the prosecutor's style of argument: indeed, the full acquittal of Casas and the acquittal of Bravo on the charged greater offense of first degree murder do not suggest a jury swayed by prosecutorial error. It bears noting as well that each of the defendants was represented by counsel whose readiness to object to prosecutorial misconduct was likewise evident in the parties' agreed-upon shorthand objection-"PE," for "prosecutorial error." The defense attorneys' forbearance from contemporaneous objection arguably reflected their later observation that "[m]aybe he wasn't exactly advancing his position at that point" and that "[i]t might even work against him . . . where the jurors did not appreciate it either." The trial court also instructed the jury that the attorneys' statements were not evidence, and that the remarks made by the attorneys during opening and closing statements were not evidence. We presume that the jury followed this instruction. (Vang, supra, 171 Cal.App.4th at p. 1129.)
Moreover, the evidence of Arjona's guilt was strong. It was undisputed, of course, that Arjona fatally shot Escalera; as to Arjona's claim of self-defense or defense of others, it was also undisputed that Arjona and Bravo reacted to Escalera's presence in their neighborhood as provocation, that Arjona sought to arm himself before it became apparent that Escalera was armed, and that there was no physical evidence of Escalera ever firing a single shot (or of anyone tampering with the gun or the crime scene after the fact), in contrast to the recovery of multiple casings that matched the ones found in the VGL shed. Assuming Arjona fired any of his multiple shots in the reasonable belief of the necessity to use deadly force as Escalera was by then brandishing his own firearm, the record evidence is unambiguous that Arjona and Bravo initiated the confrontation by driving back to Gramercy, pointing him out to the others, and agreeing to access a firearm before Escalera had taken any aggressive action. To the extent the defense argued that Arjona went to the parking lot shed before Bravo and Casas confronted Escalera, his purpose in doing so was not withdrawal from the ensuing conflict but escalation, in retrieving the gun from C.V., given C.V.'s hesitation about using it. The jury could likewise have concluded that Arjona's use of force, even if his first shot was actually or apparently justified, exceeded what was necessary to neutralize any threat Escalera appeared to pose.
Accordingly, the record reflects that to the extent misconduct occurred, it was harmless.
5. Reference to Victim's Photograph
Finally, Arjona argues that the prosecutor committed misconduct while he displayed Escalera's autopsy photograph. As we explain, to the extent there was error, it was harmless.
During rebuttal, the prosecutor, while displaying an autopsy photograph of Escalera, argued: "There is a guy that got shot. He got shot in the head, the shoulder and the butt, and he's never coming back[,] and his family is not going to see him again." In delivering this part of the argument, the prosecutor "rais[ed] his voice, pretty much yelling that the family . . . is never going to see him again" while gesturing toward the gallery where the family members were seated, as defense counsel noted without dispute in a later mistrial motion. Defense counsel objected on the ground of prosecutorial error; although the trial court instructed the prosecutor to "move on," it did not otherwise rule on the objection, and counsel sought neither a ruling nor an admonition at the time.
Although defense counsel later explained for the record her objection and reasons for not having asked for a curative instruction, this was two days after the prosecutor made his allegedly improper comment and after the jury had retired to deliberate. It is difficult to envision an admonition the trial court could fairly give the jury at that late stage that would not by its timing only compound the error; notably, defense counsel did not propose one but instead opted to move for a mistrial, the denial of which Arjona does not challenge on appeal.
We nonetheless assume without deciding that Arjona preserved this claim. The prosecutor's use of the autopsy photograph was not by itself misconduct, as the photograph was part of the evidence adduced at trial. (Holmes (2022) 12 Cal.5th at p. 788 [prosecutor's reference to victims' photographs during argument was fair discussion of evidence].) But the prosecutor here went further and emphatically invoked the impact of Escalera's death on his family, as though the jury could or should consider the magnitude of the family's loss in evaluating the evidence. This was error. (See People v. Vance (2010) 188 Cal.App.4th 1182, 1193.)
Because a prosecutor's improper appeal to the jury's sympathy and passion does not, without more, violate federal constitutional rights, we evaluate prejudice based on the Watson standard. (See People v. Fields (1983) 35 Cal.3d 329, 363.) And under Watson, we determine that it is not reasonably probable that absent this brief remark, in the midst of a much longer closing argument, Arjona would have received a more favorable verdict. The evidence at trial included extensive background information regarding Escalera's gang membership and his own history of violence, which made less likely the jury would be moved by a mere balancing of sympathies. Here, the jury was already instructed to decide the case solely based on the evidence and not to let "bias, sympathy, prejudice, or public opinion" affect its decision. We presume the jury followed these instructions. (Seumanu, supra, 61 Cal.4th at p. 1345.)
We also note the observation by Casas's counsel that the prosecutor's intemperance risked impairing the prosecutor's own credibility with the jury.
We thus conclude the prosecutor's improper argument was not reversible error.
6. Cumulative Prejudice
Finally, Arjona argues that the cumulative impact of the prosecutor's errors requires reversal of his convictions. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Hill, supra, 17 Cal.4th 800, 844 [reversing judgment after finding cumulative effect of multiple trial error and prosecutorial misconduct caused prejudice].) We have found multiple instances of prosecutorial error-the repeated disparagement of defense counsel and the improper appeal to sympathy for Escalera's family. Although individually harmless, the errors here are mutually reinforcing in their appeal to prohibited considerations, whether sympathy for Escalera's survivors or antipathy for the defense representatives. On this record, however, even if we cumulate these errors, it is not reasonably probable that the jury would have reached a more favorable verdict in their absence. (People v. Williams (2009) 170 Cal.App.4th 587, 646; People v. Doane (2021) 66 Cal.App.5th 965, 984.)
We note the responsibility a public prosecutor bears as "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." (Berger v. United States (1935) 295 U.S. 78, 88, overruled on other grounds in Stirone v. United States (1960) 361 U.S. 212.) We understand, too, the particular challenge a prosecutor faces in a gang-related homicide trial such as this one, where the gravity of the offense risks being muted by improper factors-potential disapproval of a victim's own background or history, untethered to legitimate issues in dispute; devaluation or dehumanization of lives lost at the margins of society; implicit bias as to victim and defendant alike. And we are acutely aware of the acrimony which protracted and contentious litigation can engender, even without those weighty responsibilities, even without the complication of every testifying eyewitness having believed the victim to have either fired the first shot or been on the brink of doing so. But we are compelled to observe that were it not for the strength of the evidentiary record-particularly the combination of Mora-Villalobos's testimony as to Bravo's and Arjona's jailhouse admissions (establishing their respective roles in instigating the ultimately fatal confrontation) and the unambiguous physical evidence (establishing that Escalera never responded to their aggression with such sudden and deadly force that they could not withdraw)-S.G. and Escalera's family might well have been obliged to endure a retrial as the unfortunate and unintended consequence of the errors here.
On this particular record, we conclude that the prosecutorial errors were cumulatively harmless. In doing so, we echo the observation by counsel for the later-acquitted Casas that it might not have been the People who ultimately profited from the prosecutor's style of argument.
Since we have addressed Arjona's claims of misconduct on their merits notwithstanding any forfeiture, we do not reach his alternative argument that counsel's failure to object to the misconduct below constituted ineffective assistance. Moreover, after considering the instances of misconduct together, we conclude that the misconduct did not" '"' "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process" '" '" in violation of federal due process rights. (See Wallace, supra, 44 Cal.4th 1032, 1071.)
E. Spectators' Display of Escalera's Photograph
Arjona argues that the trial court violated his constitutional right to a fair trial and eroded the presumption of innocence by permitting courtroom spectators to wear shirts displaying Escalera's photograph. The California Supreme Court has set a high bar for establishing inherent prejudice from spectator activity. (See People v. Ramirez (2021) 10 Cal.5th 983 (Ramirez) [attendance of 17-18 uniformed police officers at the jury trial of a defendant for murder of a police officer was not inherently prejudicial].) "Ultimately, our review must be deferential to the trial court, whose handling of the challenged scene we evaluate only for abuse of discretion." (Id. at p. 1016.) On this record, moreover, we are unable to discern whether the photographs were in fact visible to jurors or so inherently prejudicial that the trial court abused its discretion in failing to require the spectators to either remove or invert the shirts to conceal the message while in the courthouse.
1. Background
On one of the days of closing argument, outside the jury's presence, defense counsel objected to the presence of spectators in the courtroom wearing shirts that displayed Escalera's name and photograph, with the caption "In Loving Memory." Defense counsel argued under Evidence Code section 352 and the due process clause that the shirts were inappropriate because they could "cause bias, prejudice or sympathy in favor of the prosecution's case and in favor of [Escalera]." Defense counsel requested that the trial court either ask the spectators to remove their shirts or give an admonition to the jury.
The prosecutor argued that the spectators had a First Amendment right to expression, and he believed that an admonition would be sufficient. The prosecutor also noted that the spectators wearing the shirts were sitting in the second row, and their shirts would not be visible to the jury when the spectators were seated. Defense counsel pointed out that the spectators would not always be seated.
The trial court noted the presence in the courtroom of 13 people believed to be Escalera's family members but was unable to see the t-shirt without asking, "Could someone wearing a t-shirt stand up so I can see? I can't see any t-shirt." After making this request, the court noted that six of the spectators believed to be Escalera's family were wearing the shirts in question, and of those six, three were wearing sweaters further obscuring their shirts. The trial court, after having one spectator enter the well and stand near the court reporter, described the shirts in question as bearing the words "In Loving Memory" with Escalera's name and his photograph-"just sitting up with a Chicago Bulls hat, maybe sitting in a car." The trial court thereafter stated: "[T]he Court crafted an instruction which I will read to the jury. I believe they do have a [First] Amendment privilege." The trial court also warned the spectators against "outbursts" and instructed them to "conduct yourself like you're in church."
On the jury's return, the trial court instructed the jury in pertinent part as follows: "You must decide this case on the evidence, not on any outside influences, including spectators who are present in support of the decedent or the defendants." The defense did not object to the adequacy or generality of this admonition.
2. Legal Principles
Under the Fourteenth Amendment of the United States Constitution, a criminal defendant is presumed innocent until proven guilty, and" 'courts must be alert to factors that may undermine the fairness of the fact-finding process'" and" 'must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.'" (People v. Zielesch (2009) 179 Cal.App.4th 731, 744 (Zielesch).) "[A] reviewing court must look 'at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.' [Citation.]" (People v. Woodruff (2018) 5 Cal.5th 697, 757 (Woodruff), quoting Holbrook v. Flynn (1986) 475 U.S. 560, 572 (Flynn); Estelle v. Williams (1976) 425 U.S. 501, 505 (Williams).)
Spectator misconduct, including displays of the victim's likeness, "can violate a defendant's constitutional right to a fair trial if it is' "so inherently prejudicial as to pose an unacceptable threat," '" i.e., an"' "unacceptable risk . . . of impermissible factors coming into play." '" (People v. Houston (2005) 130 Cal.App.4th 279, 311 (Houston).) But the degree of prejudice varies and is dependent on factors such as the specific message conveyed by the misconduct in light of the facts and issues before the jury. (Id. at pp. 315-316; Zielesch, supra, 179 Cal.App.4th at pp. 745-746.) Although the United States Supreme Court has not applied the "inherently prejudicial" test of Flynn and Williams to spectator conduct, the Ninth Circuit Court of Appeal has repeatedly recognized that spectator displays may implicate an accused's right to a fair trial. (Musladin v. LaMarque (9th Cir. 2005) 403 F.3d 1072, 1077-1078 [spectator buttons displaying victim's photograph were inherently prejudicial and posed unacceptable risk of impermissible factors coming into play], overruled by Carey v. Musladin (2006) 549 U.S. 70-74 (Carey) [application of the inherent prejudice test to spectator conduct did not meet the definition of" 'clearly established federal law as determined by the Supreme Court of the United States,'" limiting federal habeas relief]; Norris v. Risley (9th Cir. 1990) 918 F.2d 828, 829-831 [spectator buttons that read" 'Women Against Rape'" deprived defendant of fair trial], overruled in part by Carey, supra, 549 U.S. at p. 76.)
Even where spectator displays merely "evoke[] somber feelings about [a victim himself]," they are "unnecessarily disruptive," and" '[t]rial courts possess broad power to control their courtrooms and maintain order and security.' (People v. Woodward (1992) 4 Cal.4th 376, 385, citing Code Civ. Proc., § 128.) The better practice of any trial court is to order such buttons and placards removed from display in the courtroom promptly upon becoming aware of them in order to avoid further disruption." (Houston, supra, 130 Cal.App.4th at p. 320.)
Ultimately, however, the California Supreme Court has instructed that "the mere possibility" that jurors "may have been influenced . . . is not enough to render the [appearance of spectators] inherently prejudicial." (Ramirez, supra, 10 Cal.5th at p. 1017.) In Ramirez, the trial court overruled an objection-in the defendant's trial for the murder of a police officer-to the presence of 17 to 18 uniformed police officers during closing arguments and the reading of jury instructions; some of those uniformed officers sat in the gallery row directly behind the defendant; one juror, for unexplained reasons, had to pass through the gallery to reach the jury box. (Id. at pp. 1016-1017.) The court further suggested that spectator clothing is not "inherently prejudicial" when worn merely to show support for a victim. (Id. at pp. 1018-1019 [citing Florida authority distinguishing spectator clothing that "might merely have shown support for the victim or another party" from spectator officers' uniforms that "directly related" to defense theory that victim was not readily identifiable as an officer].)
Accordingly, "[a] spectator's behavior is grounds for reversal only if it is' "of such a character as to prejudice the defendant or influence the verdict,"' and the trial court has broad discretion in determining whether spectator conduct is prejudicial." (People v. Winbush (2017) 2 Cal.5th 402, 463 [trial court did not abuse its discretion in denying defense request to exclude silently crying members of victims' family during guilt phase].) Though deferential, "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fn. omitted.)
3. Analysis
The wearing of these shirts in the courtroom, if seen and recognized by jurors, could have been construed as an effort to communicate to the jury, to invoke sympathy for Escalera and his survivors, and to potentially reproach any who might otherwise be inclined to consider his death justifiable. It is not apparent on this record whether the trial court understood that the spectators' First Amendment rights did not preclude it from exercising its supervisory authority to prohibit their silent display of loving memory for Escalera in the courtroom or courthouse-whether by directing the spectators to cover or invert their shirts or else to leave. We are unable to conceive of a circumstance in which courtroom spectators' display of a victim's photograph to jurors charged with deciding whether a defendant is guilty of the victim's murder would be proper, let alone compelled by the First Amendment.
There is "no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to spectators in a courtroom who engage in actual or symbolic speech to express any point of view about an ongoing proceeding." (Carey, supra, 549 U.S. 70, 79 (conc. opn. of Stevens, J.).)
The record, however, supports an implied finding that the photograph and text were not readily decipherable to the jurors. The trial court was unable to see the t-shirt words or images from the bench without asking a spectator wearing one first to stand and then to enter the well. The defense did not dispute the prosecutor's characterization of where the spectators were seated or that the jurors' view of the spectators so seated would be obstructed. We understand from the trial court's generic reference to spectators in its admonition to the jury (and the absence of objection to the admonition's generality) that a more pointed reference to the t-shirts or the image of Escalera would have risked directing attention to attire that was otherwise likely to escape the jurors' attention.
In his reply brief, Arjona makes further claims that are unsupported by the record. First, he argues that "[i]n this particular court building in San Jose, the jurors walked in the same corridors as the spectators, so the jurors could see those spectators, and those t-shirts, outside the courtroom, as well as inside the courtroom." To the extent that Arjona's characterization of the courthouse layout is not based on evidence in the record, we must disregard it. (See, e.g., People v. Szeto (1981) 29 Cal.3d 20, 35.) And although the record reflects that some jurors had on occasion waited outside the courtroom, the record does not reflect there was any significant overlap between spectators and jurors that would entitle us to reject the trial court's implicit finding that the jurors did not observe the shirts on the day worn. Defense counsel did not dispute the trial court's practice as "very careful" and "very good" in having kept the jurors and spectators separate, seating the jurors only after spectators were seated and ensuring the jurors departed the courtroom first before spectators did.
Second, Arjona argues that because Escalera was a Norteno gang member, the spectators' shirts could have been intimidating, given that Nortenos were predominant in the region. We note this specific objection is not one which counsel who observed the shirts and those wearing them thought necessary to raise with the trial court. (See People v. Hill (1992) 3 Cal.4th 959, 1000 [failure of timely objection to spectator misconduct to forfeiture of prosecutorial misconduct claim], overruled on a different point as stated in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Stanley (2006) 39 Cal.4th 913, 952 [preservation of prosecutorial misconduct claim requires timely objection on the specific ground raised on appeal].) Moreover, this intimidation theory finds scant support in the record.
The better practice is to prohibit spectator displays of a victim's likeness in the courtroom, to foreclose any prejudice. (See Houston, supra, 130 Cal.App.4th at p. 320.) However, under the totality of these circumstances and our deferential review, we see in the record no basis to reject either the trial court's implicit factual finding that the likelihood of jurors recognizing the image and message on the shirts was low, or its application of the inherent prejudice standard on these facts. The dearth of evidence that the jury actually or even likely saw the shirts is "insufficient to support a claim of error or prejudice." (Woodruff, supra, 5 Cal.5th at p. 757.)
F. Cumulative Prejudice
Finally, Arjona argues that the cumulative effect of the errors at trial require reversal of the judgment. (Hill, supra, 17 Cal.4th at p. 844.) We are troubled by the circumstances that threatened to divert the jury to impermissible considerations-such as sympathy for Escalera's family via their display of his image and the prosecutor's emphatic reference to their loss, or the prosecutor's repeated references to the perceived deceitfulness of the defendants' representatives-particularly in a trial where the defense theory of self-defense/defense of another put the victim's conduct on this and prior occasions directly at issue. But we have found no abuse of discretion in the trial court's decision to permit the spectators to wear the shirts, given its implied finding that the jurors were unlikely to see them. And based on the strength of the prosecution's evidence as previously discussed, we have concluded that the prosecutor's errors were not prejudicial, whether independently or collectively. This leaves us nothing more to cumulate. We accordingly cannot say that Arjona's trial was fundamentally unfair. (See People v. Rogers (2006) 39 Cal.4th 826, 890.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: GREENWOOD, P.J., GROVER, J.