Opinion
G056329
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID ARZATE CABRERA, Defendant and Appellant.
Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Mark A. Kohm and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14NF3175) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Mark A. Kohm and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant David Arzate Cabrera was convicted of first degree murder for fatally shooting a fellow motorist on the 91 Freeway in Anaheim. On appeal, he contends 1) there is insufficient evidence to support his conviction; 2) his admissions to the police were illegally elicited; 3) the trial court erred in admitting opinion testimony from a ballistics expert; 4) the trial court erred in refusing to give his requested jury instruction on imperfect self-defense; and 5) the prosecutor committed prejudicial misconduct in closing argument. We reject these contentions and affirm the judgment.
FACTS
On July 14, 2014, Augustin Villegas went to work on a car in Tustin with his friend Abraham Vargas and their two teenage sons. They finished the job in the early evening and headed straight home on the 91 Freeway in Villegas' white pickup truck. Vargas was driving, the boys were in the backseat, and Villegas was riding in the front passenger seat with his window up. They had no problems with any other travelers on the road, but as they approached the 57 on-ramp, Villegas' window was suddenly shattered by gunfire.
One of the shots struck Villegas in the temple, killing him instantly, and one shot grazed the top of Vargas' head. He told the police the shooting came out of nowhere and was entirely unprovoked. He also said Villegas was well-liked and had no known enemies. Thus, not only was the identity of the shooter unknown, his motive was also a mystery. Witnesses described the shooter's car as a black sedan, and investigators found an expended casing from a .357 caliber bullet at the scene, but beyond that, the police didn't have much to go on.
On July 15, the day after the shooting, investigators received a promising lead from informant Salvador Terrones. Terrones was a drug dealer who had purchased cocaine from appellant on multiple occasions. He became a police informant to avoid deportation and gain favorable treatment in his various criminal cases. Terrones told the police that during lunchtime on the 15th, he ran into appellant by chance at a restaurant in Anaheim. While they were talking, appellant said he had recently shot someone on the 91 Freeway because that person did something to him or owed him something. He said appellant expressed dissatisfaction that the media was portraying the victim as a "good guy." Appellant told Terrones the victim was not a nice person but was actually trying to take him down or rob him.
The following day, investigators gave Terrones $300 to purchase cocaine from appellant during a controlled buy. During the transaction, appellant told Terrones he shot the victim with a "57." He said that's what happens to people who follow him but implored Terrones not to tell anyone about the shooting.
Two weeks later, the police arrested appellant and searched his Anaheim home. The search turned up cash, cocaine and multiple indicia of drug sales. The police also discovered appellant's home was equipped with exterior surveillance cameras. Video from the cameras revealed that about an hour after Villegas was shot, appellant removed the license plates from a black Nissan Altima in his driveway.
When the police searched the Altima, they found a hidden compartment in the center console that contained still more cash and cocaine, as well as various forms of identification in appellant's name. In addition, they discovered a loaded .357 caliber Glock semi-automatic handgun along with extra ammunition. Ballistics testing confirmed the bullet casing recovered at the crime scene was fired from that weapon.
Following his arrest, appellant was jailed at the Anaheim Police Station. Hoping to obtain information about the shooting, the police placed undercover informants in his cell as part of a "Perkins operation." (See Illinois v. Perkins (1990) 496 U.S. 292 (Perkins) [during the precharging stage of an investigation, the police may enlist undercover agents to elicit incriminating statements from a suspect].) The operation started the evening of appellant's arrest and continued off and on into the following day. Over that period, appellant talked about his experience using and selling narcotics, but he never made any statements - incriminating or otherwise - about the shooting. Therefore, homicide detective Julissa Trapp terminated the operation and had appellant transported to an interview room at the station for formal questioning.
At the start of the interview, Trapp advised appellant of his Miranda rights and he spoke at length about his family, his drug dealing and his penchant for gambling. When Trapp asked about the gun that was found inside his car, he said he purchased the weapon for protection because people had been following him. He said that is also why he put up the surveillance cameras outside his home. He feared that because he was a drug dealer and a gambler, people might try to rob him or do him harm.
See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
When Trapp asked appellant about Villegas, he initially feigned ignorance about his death. Eventually, however, he admitted shooting Villegas on the freeway. He told Trapp that prior to the shooting, he went to the Taco Boy restaurant in Anaheim for dinner. While there, he saw two men who were acting suspicious and giving him "ugly looks." Thinking the men were going to rob him, he left the restaurant and drove toward the 91 Freeway. The men followed him in a white pickup truck. Along the way, appellant twice pulled over and asked the men why they were following him, but they just laughed, which made appellant feel angry and disrespected. He told the men he was not afraid of anyone and eventually made his way onto the 91.
He said the men followed close behind, veering their truck toward appellant's car at various points along the way. Although their truck never actually touched his car, appellant was concerned. At one point, he pumped his brakes, causing the truck to swerve around him on his left. As it did, he again asked the men why they were following him. No answer was forthcoming. Instead, the front passenger bent down and reached for something "underneath." Appellant did not see what the object was, but he thought the passenger was going to "fuck" him or try to take him down, so he fired three shots at him.
After the shooting, appellant did not stop to see what happened or call the police; he simply drove home. Speculating as to what the men in the truck were up to, he told Trapp he thought his ex-wife, Humbertina Ochoa, may have sent them to follow him, or they may have followed him from a casino to get his money. Appellant also told Trapp that he had been kidnapped in Mexico in 2010 and that Ochoa had to pay his captors a steep ransom to prevent them from mutilating and killing him.
At trial, Ochoa confirmed the kidnapping incident but denied she ever sent anyone to follow appellant. In fact, she praised appellant as a good person and an excellent father to their children. But she said that after the kidnapping incident, appellant developed a persecution complex and was always worried that people were out to get him.
To help the jury understand appellant's perspective at the time of the shooting, the defense presented evidence the drug trade is a dangerous business and drug dealers like appellant are often victims of violent crimes. Given the perils of drug dealing, and in light of appellant's harrowing kidnapping experience in Mexico, the defense posited appellant honestly, albeit unreasonably, feared for his life at the time he shot Villegas. As defense counsel put it, appellant had a "misperception of the need to defend himself." Therefore, even though Villegas did not actually do anything to threaten appellant, and appellant was not in reasonable fear for his safety, he acted in imperfect self-defense and was guilty of voluntary manslaughter, not murder.
The jury disagreed. It convicted appellant of first degree murder and found true the special circumstance allegation he killed Villegas by discharging a firearm from a vehicle. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(21).) The jury also found appellant discharged a firearm causing death. (Id., at § 12022.53, subd. (d).) In addition, it found appellant guilty of possessing a firearm as a felon and possessing cocaine for sale. (Id., at § 29800, subd. (a)(1); Health & Saf. Code, § 11351, subd. (a).) The trial court sentenced appellant to life in prison without parole, plus a consecutive term of 25 years to life.
DISCUSSION
Sufficiency of the Evidence
Appellant contends there is insufficient evidence to support his conviction for murder. While he concedes there is some evidence he harbored malice in shooting Villegas, he asserts that evidence was negated by "compelling, uncontroverted evidence" he acted in imperfect self-defense, and therefore his murder conviction should be reduced to voluntary manslaughter. We cannot agree.
In considering a sufficiency-of-the-evidence claim, "we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury's verdict. [Citation.] By this process we endeavor to determine whether '"any rational trier of fact"' could have been persuaded of the defendant's guilt. [Citations.]" (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) "'"[I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding." [Citation.]' . . . [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 210.)
The doctrine of imperfect self-defense is "narrow." (In re Christian S. (1994) 7 Cal.4th 768, 783.) It applies when the defendant has an actual but unreasonable belief in the need for self-defense. (Ibid.) Fear of future harm will not suffice: "'"[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." . . . [¶] This definition of imminence reflects the great value our society places on human life.' [Citation.]" (Ibid., italics omitted.)
A malicious killing committed in imperfect self-defense is manslaughter, not murder. (People v. Rios (2000) 23 Cal.4th 450, 461.) "Imperfect self-defense obviates malice because that most culpable of mental states 'cannot coexist' with an actual belief that the lethal act was necessary to avoid one's own death or serious injury at the victim's hand. [Citations.]" (Ibid., italics omitted.)
In this case, the jury was properly instructed the prosecution had the burden to prove beyond a reasonable doubt that appellant did not act in imperfect self-defense in killing Villegas. (CALCRIM No. 571.) Appellant argues the record is bereft of substantial evidence the prosecution carried its burden in that regard. In so arguing, he admits the fact he shot Villegas in the head at close range shows he acted with malice. (People v. Valdez (2004) 32 Cal.4th 73, 145.) However, he claims the evidence conclusively established he acted in imperfect self-defense.
The foundation for this claim is what appellant told Detective Trapp during his interview at the police station. Appellant alleged he received menacing glances from two men at a restaurant prior to the shooting, and when he left the restaurant, the men followed him in their truck onto the 91 Freeway. The men were driving aggressively and refused to tell appellant why they were following him. Even so, appellant did not fire his gun until the front passenger bent down and reached for something "underneath." Although appellant did not use the term "self-defense" in speaking with Trapp, the essence of his story was that he shot the passenger out of fear for his own safety. Appellant also presented evidence he may have had a heightened perception of the danger presented because he was in a perilous line of work, he had been followed in the past, and he was previously kidnapped in Mexico.
Taken together, this evidence was certainly sufficient to justify jury instructions on imperfect self-defense. However, there are a number of reasons why the jury was not required to believe appellant's version of events and find in favor of his claim of imperfect self-defense. First, appellant was an admitted drug dealer who lied to Trapp at the outset of the interview about not having anything to do with Villegas' death. As discussed more fully below, it was not until Trapp pressed appellant and told him she had proof he carried out the shooting that he finally admitted to doing so.
Second, appellant's story conflicted with other evidence in the case. Appellant claimed the shooting occurred after the victims confronted him at a restaurant in Anaheim, but the occupants of Villegas' truck - Vargas, the driver, and the person seated behind him, Villegas' son Ramsey - testified they did not make any stops on their way home that evening. While it is possible appellant got Villegas' truck mixed up with another truck, Ramsey testified his father was not making any sort of movements or gestures prior to the shooting. Ramsey admitted he was looking at his phone during most of the drive, but was adamant his father "wasn't doing anything" before appellant shot him.
Third, the evidence cast doubt on whether appellant actually believed he was in imminent fear for his life when he shot Villegas. Before the shooting occurred, appellant repeatedly confronted the two men about why they were following him and proclaimed he was not afraid of anyone. He also told Trapp he felt angry and disrespected when the men laughed at him. These emotions are largely inconsistent with a fearful and apprehensive mindset.
We would not go so far as to say appellant was the initial aggressor during the incident. Respondent suggests appellant had no right to use deadly force because he repeatedly confronted the two men before the shooting. But, according to appellant, he did so in response to the men following and hectoring him. This does not strike us as a case in which the initial aggressor rule eviscerated the defense theory of imperfect self-defense.
Moreover, even if appellant thought something bad was going to happen when Villegas reached "underneath," he did not actually see a weapon, and Villegas still had his window rolled up. Under these circumstances, it is questionable whether the threat appellant perceived was imminent. And his flight after the shooting created further doubt concerning imperfect self-defense. (See People v. Turner (1990) 50 Cal.3d 668, 694, fn. 10 [evidence of the defendant's flight may be probative to refute his claim of self-defense].)
In light of all these considerations, we are convinced the prosecution presented substantial evidence that undermined appellant's theory of imperfect self-defense. Accordingly, it was reasonable for the jury to find appellant guilty of murder, and he is not entitled to have his conviction reduced to voluntary manslaughter.
Appellant's Interview Statements
Appellant contends the trial court erred in admitting the statements he made in his interview with Detective Trapp. Even though those statements formed the basis for his claim of imperfect self-defense, appellant claims they should have been excluded from his trial because 1) the police subjected him to a coercive, two-step interrogation procedure that was deliberately designed to undermine his Miranda rights; 2) he invoked his right to counsel and to remain silent; 3) he did not validly waive his Miranda rights; and 4) the statements were involuntarily rendered in violation of due process. For the reasons we now explain, we do not believe there is any reason to disturb the trial court's decision to admit appellant's interview statements into evidence.
Detective Trapp was not the lead investigator on the case. Following the shooting, she was enlisted to assist the investigation because she speaks Spanish, which is appellant's native language. As part of the Perkins operation, Trapp placed undercover informants in appellant's jail cell after he was taken into custody two weeks after the shooting. The thinking was that appellant would be more likely to divulge incriminating information to a fellow inmate in his jail cell than he would to a police investigator during formal interrogation. That did not turn out to be the case; appellant confessed to Trapp but not the informants. Consequently, the prosecution did not attempt to introduce into evidence any of the statements he made during the Perkins operation. Nonetheless, we must still review what occurred during the operation because appellant relies on those circumstances in challenging the admissibility of the statements he made to Trapp.
At the outset of the Perkins operation, appellant and the undercover informants spoke mainly about the circumstances of appellant's arrest and his prior experience using and dealing drugs. As they were talking, one of the informants asked an unidentified male if he could use the phone to call his lawyer. Appellant then stated "yo quiero hablar," which means "I want to talk." Appellant's request to talk was followed by some unintelligible conversation and a discussion about the penalties for various drug offenses.
Appellant and the informants conversed primarily in Spanish. Although the transcript of their conversations contains an English translation for nearly all of what they said, it does not contain a translation for the Spanish phrase "yo quiero hablar." We grant appellant's unopposed request to judicially notice that phrase means "I want to talk" in English. (Evid. Code, § 452, subds. (f), (g); People v. Lazarevich (2001) 95 Cal.App.4th 416, 421.)
A short while later, Detective Trapp went to the cell and introduced herself to appellant as a homicide detective. She said she was interested in talking to him and would come back in about an hour.
After that, appellant had the following exchange with an informant:
"[Appellant]: Hey, fool if you go home or you bail out, make sure you stop by my pad.
"[Informant]: Alright.
"[Appellant]: [Unintelligible] and to get the uh, call a lawyer. Cuz . . . they're probably going to keep me here."
Appellant then made a phone call from his cell to an unidentified recipient. During the call, appellant explained where he was and made an apparent reference to his trial attorney, Michael Garey. He said "according to Michael, he needs, um, . . . I think I want an appointment, but I don't know or what. Go with him [unintelligible] right now if possible." Appellant ended the call by asking how he was going to get out of jail. Subsequently, someone in the cell referenced "the lawyer Michael," but the identity of the speaker is not identified in the record.
Later on, appellant spoke about a confrontation he apparently had with an officer and a "white girl" outside his jail cell at some point. Describing the incident to an informant, appellant said the officer "wanted to talk to me there. I have nothing to talk about. . . . I don't give a fuck. Fuck . . . we have you for the murder. I don't give a fuck. You have what you have. Prove it. I know the law. I was in the joint for seven fuck[ing] years. . . . I know the fuck[ing] law. Do what you have to do. Take me to court. . . . [H]e got close to me, he came and . . . I [told him], you don't have to talk so strong to me. So she (the white girl) tried to grab me so I pushed him back. Don't touch me dude . . . you[] fuck[ing] mother."
A while later, Trapp contacted appellant in the cell and told him, "It's going to be a little bit more time. Okay? I just got an order from a judge . . . to search your house . . . and your car." "This car, I just found some very interesting things. And things that you and I are going to talk about later. But I don't have time, since I have to continue with your house. So it's going to be a little time. Okay?" Appellant asked Trapp if his son was at his house, and she said only the police were there. He then indicated he had another question, but Trapp left before he could get it out. At that point, one of the informants told appellant the police might take his children into custody if they found something bad in his car. The informant tried to bait appellant into revealing what was in his car, but appellant changed the subject.
The next morning, Trapp returned to the jail cell and told appellant, "I haven't forgotten about you. Uh, but I spen[t] all night searching your house and your car too, okay? I'm going to be back in about an hour, um, but I found the gun in your car. So I want you to think carefully and I'll be back. Uh, I don't want you to think I forgot about you but I have been very busy all night at your house, okay? So I'll be back in an hour."
When Trapp left, one of the informants told appellant he was looking at two to six years in prison for unlawful gun possession. He also said appellant was "fucked" if the police had something else on him. Appellant said he wasn't worried. Then he tried to make a phone call but failed.
Toward the end of the Perkins operation, an informant asked appellant if he had anything "dirty" on his gun, and appellant said he didn't know. When the informant said they were going to do a ballistics test on the weapon to see if it had been fired, appellant insisted, "I'm telling you that I hardly used it fool." At no point during the operation did appellant make any statements about the shooting in this case or implicate himself in regard to Villegas' death.
That circumstance is what prompted Trapp to transfer appellant to an interview room at the police station for formal questioning later that day. Before the interview started, she asked appellant if he wanted anything to drink. He said he needed to use the restroom and was allowed to do so. Upon his return, he asked for a cigarette, and Trapp said she would see what she could do. As they were making small talk, appellant seemed relaxed and joked about his weight. He appeared to be quite anxious to talk to Trapp about his family.
Trapp told appellant she wanted to hear what he had to say, but because he had already been arrested, she needed to read him his rights first. She also told appellant that if he did not understand his rights as she was reading them to him, he should let her know, and she would explain them to him. Appellant said, "I know . . . you have to give me my rights but I also have to speak what I want to speak right?" Trapp answered, "Yes, yes of course."
With that, the following exchange occurred:
"[Det. Trapp]: "You have the right to remain silent. Do you understand?
"[Appellant]: No yes yes well I can't tell you anything but I need to say about my kids, do you understand me?
"[Det. Trapp]: Yes.
"[Appellant]: Ah ha.
"[Det. Trapp]: But do you understand that right?
"[Appellant]: Okay.
"[Det. Trapp]: That you have that right, do you understand it?
"[Appellant]: It's fine, okay then okay.
"[Det. Trapp]: Anything you say can be used against you in court, do you understand?
"[Appellant]: You say I have to be quiet so (laughs) I don't know.
"[Det. Trapp]: No. That you have the right but you know, you know that you have that right and you know that uh, that what we say can be used in court. Do you understand that?
"[Appellant]: Ah ha. Yes. Mm hmm.
"[Det. Trapp]: Do you know that you have the right to an attorney present before and during your interrogation?
"[Appellant]: Mm hmm. (As in yes; he nods head up and down)
"[Det. Trapp]: Do you understand that? And that if you don't um, if you want an attorney and you can[not] afford one, one can be appointed to you free of charge before your interrogation if you wish. Do you understand that too?
"[Appellant]: Mm hmm. (Nods his head up and down)
"[Det. Trapp]: Okay. There now, I don't have to cut you off. Explain to me about your kids." (Parens in original.)
At that point, appellant began talking about his children. He said their mother did not love them anymore, and thus he had to take care of them on his own. And even though his work as a drug dealer was very dangerous, he was willing to endure the risks in order to provide for them. He also talked about how he made money gambling at casinos, despite the fact people always seemed to be following him around there. During this part of the interview, appellant did most of the talking; Trapp did little more than nod along and add the occasional "uh-huh" in acknowledgment of what appellant was saying.
Appellant and Trapp also discussed the various items of contraband that were found inside appellant's house and car. When Trapp inquired why he kept a loaded handgun in the hidden compartment of his Altima, appellant said "because they were following me." He then proceeded to explain how a "gangster and a girl" had followed him around on multiple occasions and even confronted him outside his house. Appellant said that during the confrontation, he fired his gun to scare them away and that, ultimately, he ended up purchasing home surveillance cameras because he was worried about his safety. Appellant also alluded to another occasion on which he fired the gun in the air to scare off people who were following him.
Although appellant spent much of the interview talking about how dangerous his work as a drug dealer and a gambler was, and how he feared that people were always following him and trying to rip him off, he appeared quite comfortable talking to Trapp. At various points in the interview, he laughed and joked with her and complimented her on her appearance. He was also allowed to take a cigarette break at one point, which seemed to make him happy. However, when Trapp started asking questions about Villegas' murder, appellant's demeanor changed and he became more focused and serious. He also became less forthcoming, which put the onus on Trapp to carry the conversation.
About 90 minutes into the interview, she showed appellant a photo of Villegas, and he claimed not to recognize him or know anything about his death. Not wanting appellant to think she was judging him or his lifestyle, Trapp assured him that she did not think he was a bad person. Even though he was an admitted drug dealer who spent much of his time frequenting casinos, Trapp said he was an honorable man for doing what he needed to do to support his family. Trapp also told appellant there was probably a good explanation for everything that happened, and if he had some sort of problem with Villegas and did something to protect himself, now was the time tell her. Appellant claimed he never had a problem with anyone, but Trapp made it clear she did not believe him. She urged appellant to tell her what happened and again suggested Villegas may have done something to provoke the shooting. However, appellant continued to deny any wrongdoing.
During the back and forth, Trapp told appellant she knew he shot Villegas on the 91 Freeway, and the only thing left for them to talk about was why he did it. Instead of getting into that issue, appellant asked Trapp what was going to happen to him. She answered, "Well, it all depends on . . . your explanation. Because the only person who knows why you shot that day is you. I honestly know that I can prove that you shot that day, the evidence and the proof, I do have." "So I am not here to ask you if you did it or if you didn't do it. I know you did it but what matters to me David is an explanation why you did it, it has a lot of value."
Continuing, Trapp told appellant "if you tell me you were pissed off and that you didn't . . . give a shit and that . . . you planned it . . . [y]ou know what's going to happen with you." Laughing, appellant replied in the affirmative. He then asked Trapp why she was getting mad at him and told her she was pretty. Trapp told appellant she was not mad and returned to the matter at hand.
She said "[T]here are a lot of occasions where there is a shooting but the person explains why they did it and that explanation can change the decisions on what happens [to them]. But it all depends on the explanation." Appellant didn't like that answer; he wanted to know more precisely what was going to happen to him if he confessed. Trapp said that was up the prosecutor, not her, and it would depend on why he shot Villegas. She also repeated her belief that there probably was a good reason for why the shooting occurred.
At that juncture, appellant began talking about how the two men followed him from the Taco Boy restaurant in their truck. As he was describing events, he paused and asked Trapp if he was going to be charged as a result of what he did. She said, "The explanation is . . . what's going to determine . . . what the prosecutor will say." Then she again alluded to the situation where a person commits an intentional killing without remorse, which, she said, would surely trigger charges. Trapp contrasted that situation with a scenario in which the killer acted in self-defense, saying those two cases are "completely different." She told appellant that was why it was so important for him to tell her what happened.
However, appellant continued to beat around the bush, telling Trapp Villegas looked like his neighbor, with whom he had very few problems. Trapp told appellant, "That's not true." "I . . . already . . . [know]." Appellant responded with laughter. He then laughed again after Trapp told him he was not a very good liar. She told appellant that was actually a good thing because it showed he had a conscience.
Appellant then explained how the white truck followed him onto the freeway and how he shot the passenger after he saw him reach for something. Appellant told Trapp he did not know if the men wanted to fight him, rob him, or what, but if it came down to someone losing out, it was going to be them, not him.
Following his confession, appellant expressed concern about his children and asked Trapp what his punishment was going to be. She said that was not for her to decide; rather, her only duty was "to investigate and . . . get to the truth." Appellant assured Trapp he gave her the truth. He then asked for another cigarette as the interview, which lasted about two and a half hours, came to an end.
At the preliminary hearing, appellant moved to suppress his statements on the basis of Miranda and due process/involuntariness. The court found appellant never clearly invoked his right to counsel or to remain silent. It was also satisfied that he voluntarily waived his Miranda rights before confessing to Trapp and that she comported herself properly during their interview. Accordingly, it denied appellant's motion.
Before trial, appellant renewed his motion and filed a request to disclose the identity of the undercover informants who participated in the Perkins operation. At the motion hearing, Trapp testified she did not have a live audio feed into appellant's jail cell, and therefore she was not aware of everything that was being said during the operation. However, she did pull the informants out of the cell from time to time to get updates from them and provide them with information.
Trapp also testified about appellant's demeanor during his interview with her, saying: "He joked with me a lot and seemed very comfortable. At times he would get a little melancholy when he talked about . . . his kids. But generally it was a very cordial conversation . . . even when he was describing what had happened to him, he seemed very comfortable speaking with me."
In issuing its ruling, the trial court described the Perkins operation as a failure from the prosecution's prospective because appellant never made any incriminating statements about the shooting. Having reviewed the video recordings of the operation multiple times, the court did not believe there was anything improper about how the operation was carried out. In that regard, the court noted appellant appeared to hold his own with the undercover informants, and there was no evidence they "softened him up" in preparation for his interview with Detective Trapp. Nor was there any evidence the police employed the type of two-step interrogation procedure that was condemned by the United States Supreme Court in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert).
As for the Miranda and voluntariness issues, the court found appellant was "dying to talk" to Trapp and impliedly waived his right to remain silent. It did not believe their interview was intense or confrontational. To the contrary, Trapp was very patient with appellant, and he laughed and joked with her at various times. And although she did press appellant to tell the truth, she did not make any implied promises of leniency in exchange for appellant's confession. For all these reasons, the court denied appellant's motion to suppress, as well as his request to disclose the undercover informants' identities.
Only the suppression ruling is at issue on appeal. In reviewing that decision, we defer to the trial court's factual findings, whether express or implied, but independently determine whether, on those facts, appellant's interrogation was lawful. (People v. Hoyt (2020) 8 Cal.5th 892, 931.)
Appellant argues his statements to Detective Trapp were inadmissible under the reasoning of the United States Supreme Court's decision in Seibert, but that case is distinguishable on its facts. In Seibert, the police intentionally violated Miranda by subjecting the defendant to custodial interrogation without advising her of her Miranda rights. Then, after she confessed, they obtained a Miranda waiver, confronted her with her prewarning admissions, and she reaffirmed the substance of those statements. (Seibert, supra, 542 U.S. at pp. 605-606.) The high court found this two-step interrogation process impermissible because once the defendant incriminated herself during the initial interrogation, the subsequent Miranda warning was rendered ineffective; it could not meaningfully accomplish what Miranda requires after the defendant had already confessed. (Id. at pp. 611-612.)
In the present case, Trapp admitted she made a deliberate choice not to advise appellant of his Miranda rights before the undercover informants were placed in his jail cell as part of the Perkins operation. However, unlike the situation in Seibert, this decision was perfectly legal. It did not violate Miranda because, as the Perkins court explained, "The essential ingredients of a 'police-dominated atmosphere' and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate." (Perkins, supra, 496 U.S. at p. 296; accord, People v. Fayed (2020) 9 Cal.5th 147, 165; People v. Webb (1993) 6 Cal.4th 494, 526.) Because appellant's Mirandized confession was not preceded by an unconstitutional interrogation, Seibert is inapt. (United States v. Thompson (7th Cir. 2007) 496 F.3d 807, 811.)
Even if the Perkins operation had been constitutionally flawed in some respect, suppression of appellant's confession would not be compelled under Seibert. In that case, the Supreme Court was concerned a Miranda warning is likely to have little meaning if it is given after the suspect has already confessed. (Seibert, supra, 542 U.S. at 612.) That concern is absent here because appellant did not confess to shooting Villegas until after Detective Trapp advised him of his Miranda rights. Accordingly, the Seibert decision is of no help to him. (Bobby v. Dixon (2011) 565 U.S. 23, 31 ["unlike in Seibert, there is no concern here that police gave Dixon Miranda warnings and then led him to repeat an earlier murder confession, because there was no earlier confession to repeat"]; People v. Krebs (2019) 8 Cal.5th 265, 311 [rejecting Seibert claim where the police advised the defendant of his Miranda rights before he confessed].)
Appellant also contends he invoked his right to counsel during the Perkins operation, and therefore Trapp should not have been allowed to question him without an attorney being present. As this court has explained, a suspect may invoke his right to counsel if custodial interrogation is impending or imminent. (People v. Nguyen (2005) 132 Cal.App.4th 350, 357.) But, in order to do so, his invocation must be unequivocal and unambiguous. (Ibid.) While the suspect "need not 'speak with the discrimination of an Oxford don'" (Davis v. United States (1994) 512 U.S. 452, 459), his words must be clear enough that a "reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Ibid.) If "a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," questioning without counsel is permitted. (Ibid.)
During the Perkins operation, appellant alluded to an attorney on three different occasions. The first time was when an undercover informant said he wanted to use the phone to call his lawyer, and appellant said, "I want to talk." After that, appellant told an informant to stop by his house and "call a lawyer" if he (the informant) was able to make bail. Then later on, while on the phone, appellant mentioned "Michael," an apparent reference to his trial attorney, and said, "I think I want an appointment, but I don't know or what. Go with him [unintelligible] right now if possible." Someone in appellant's cell also made a reference to "the lawyer Michael" subsequent to this, but the record is unclear as to who that was.
Considered as a whole, we do not believe these statements constitute an unambiguous and unequivocal request for counsel. They certainly indicate appellant was thinking about talking to or getting an attorney, but his statements were cryptic, and it is hard to decipher the context in which they were made. And while appellant did make a reference to "Michael" while he was on the phone, he said he did not know whether he wanted an appointment with him. (See Davis v. United States, supra, 512 U.S. at pp. 459, 462 [suspect's statement that "'Maybe I should talk to a lawyer'" was not an "unambiguous or unequivocal request for counsel"].)
During the phone call, appellant also asked how he was going to get out of jail. Thus, it is unclear whether he was seeking legal assistance to arrange bail, or to help him deal with impending police interrogation. This is important because, in order make a valid invocation, the defendant "must ask for 'the particular sort of lawyerly assistance that is the subject of Miranda.' [Citation.]" (People v. Nguyen, supra, 132 Cal.App.4th at p. 357.) All things considered, we concur with the trial court's assessment that appellant's statements fall short of a clear expression that he wanted assistance of counsel in dealing with custodial interrogation. (Ibid. [defendant's statement following arrest that she intended to call her lawyer was too ambiguous to trigger right to counsel during subsequent police questioning].)
The same standard applies in determining whether appellant invoked his Fifth Amendment right against self-incrimination. (People v. Flores (May 4, 2020, S116307) ___ Cal.5th ___, ___, fn. 14 (Flores).) We must decide whether appellant unambiguously and unequivocally signaled to Trapp that he wanted to remain silent and not answer any of her questions about Villegas' murder. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381-382; People v. Martinez (2010) 47 Cal.4th 911, 947-948.)
Appellant claims he did this at the beginning of his Miranda advisement, after Trapp asked him if he understood he had the right to remain silent. In response to that question, appellant answered, "No yes yes well I can't tell you anything but I need to say about my kids, do you understand me?"
On its face, this statement was confusing and contradictory. Besides answering both "yes" and "no" to Trapp's question, appellant said both that he could not tell Trapp anything and that he needed to talk to her about his kids. Given these ambivalent responses, it was entirely reasonable for Trapp to seek clarification. (Flores, supra, ___ Cal.5th at p. ___ [if the defendant's response to an advisement of rights is equivocal, the officer may ask follow-up questions to ascertain whether he wishes to invoke them].) Trapp twice asked appellant if he understood he had the right to remain silent, and each time he answered in the affirmative, saying, "Okay" and "It's fine, okay then okay." This signaled he understood his Fifth Amendment privilege, not that he wanted to invoke it.
Appellant contends he was attempting to draw a distinction between his children and the murder investigation, and that his statement signaled he would be willing to talk about the former, but not the latter. But his statement - which was made in response to a question about whether he understood his right to remain silent, not whether he wished to invoke it - was not clear and unambiguous in that respect. And when the interview transitioned from the topic of appellant's children to other areas, such as where appellant got his gun and whether he was involved in Villegas' murder, appellant never indicated he did not want to talk about those topics. In fact, at no point did he clearly express, by words or conduct, that he wanted to remain silent. His invocation claim is without merit. (See Flores, supra, ___ Cal.5th at p. ___ [defendant's claim that he waived his Fifth Amendment rights only with respect to certain background questions was undermined by the fact that, after answering those questions, he continued to answer more substantive questions during the course of the interview].)
Appellant's claim that he did not validly waive his Miranda rights is also unavailing. According to appellant, the state did not meet its burden of proving he waived his rights "with a full awareness of both the nature of the rights being abandoned and consequences of the decision to abandon them; rather, his statement was the product of coercion, deception, and confusion." In so arguing, appellant alleges the undercover informants made coercive statements to him during the Perkins operation. However, the record supports the trial court's findings that appellant held his own during the operation and that he was eager to talk to Trapp once she had him transferred to the interview room. And, as explained above, that eagerness was not limited to the topic of his children.
To be sure, appellant's responses to Trapp's Miranda admonishment were not the epitome of clarity. However, Trapp was very patient with appellant. When there was ambiguity in his responses, she diligently sought clarification and asked follow-up questions until appellant affirmatively acknowledged - by words, gestures or both - that he understood what she was telling him. While it would have been preferable for Trapp to get an express waiver of rights from appellant, "[a] valid waiver need not be of predetermined form[.]" (People v. Cruz (2008) 44 Cal.4th 636, 667.) The fact appellant immediately began talking and answering questions after signaling his understanding of his rights is sufficient proof he knowingly and voluntarily waived them. (Ibid.; People v. Cunningham (2015) 61 Cal.4th 609, 642; People v. Gonzales (2012) 54 Cal.4th 1234, 1269; People v. Whitson (1998) 17 Cal.4th 229, 247-250; People v. Medina (1995) 11 Cal.4th 694, 752.)
We now turn to appellant's claim his statements were involuntarily made in violation of his due process rights. "'"The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were 'such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined.' [Citation.]" [Citation.]'" (People v. Maury (2003) 30 Cal.4th 342, 404; accord, Colorado v. Connelly (1986) 479 U.S. 157.) "We judge whether a confession was involuntary by examining the totality of the circumstances surrounding the confession. [Citations.]" (People v. Orozco (2019) 32 Cal.App.5th 802, 819 (Orozco).)
Appellant points to various aspects of the Perkins operation as being coercive in nature. In his view, not only was the use of undercover informants inherently deceptive, he was subjected to extreme psychological pressure when the informants suggested he was in trouble and might lose his children, when Trapp told him she wanted to talk to him about the gun that was found in his car, and when he was "manhandled" by an officer during the confrontation that occurred outside his cell.
However, in describing that confrontation to one of the informants, appellant boasted about how he stood up to the officer, and a "white girl," after they talked strongly to him and tried to grab him. Indeed, appellant claimed he pushed the officer and insisted he was not going to be intimidated in any fashion. This encounter was emblematic of the Perkins operation as a whole: although the police tried to bait appellant into incriminating himself throughout the operation, he never uttered a single inculpatory word about the shooting. This refutes the notion his free will was overcome by anything that occurred during the operation. (See People v. Fayed, supra, 9 Cal.5th at pp. 165-166 [although undercover cell mate coaxed and prodded the defendant to speak, he did not overcome the defendant's free will so as to render his statements involuntary]; Orozco, supra, 32 Cal.App.5th at pp. 819-821 [due process does not require suppression of a confession that was allegedly induced by improper police tactics unless those tactics and the confession are causally related].)
Appellant also claims Trapp crossed the line when she "false[ly] suggest[ed]" he would be treated more leniently if he had a good explanation for shooting Villegas. But Trapp did not falsely suggest anything. She merely explained to appellant that there is a big difference between killing a person in cold blood and killing someone in self-defense, which is true. "Law enforcement does not violate due process by informing a suspect of the likely consequences of the suspected crimes or of pointing out the benefits that are likely to flow from cooperating with an investigation. [Citations.]" (Orozco, supra, 32 Cal.App.5th at p. 820; accord, Flores, supra, ___ Cal.5th at p. ___.)
Trapp also made it clear to appellant that all the charging decisions were going to be made by the prosecutor, and she could not make him any promises in regard to how his case would play out. Of course, she also advised appellant of his Miranda rights before asking him any questions about the shooting. Although this circumstance is not determinative of the voluntariness issue, "giving [Miranda] warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. [Citation.]" (Seibert, supra, 542 U.S. at pp. 608-609.)
Based on everything that occurred at the police station, we believe appellant validly waived his Miranda rights and voluntarily confessed to Detective Trapp. He was not lured into confessing nor impermissibly softened up during the initial Perkins operation. Nor was he coerced into making any incriminating statements during his subsequent interview with Trapp, which, to all appearances, was carried out in a low key, professional manner. His statements were therefore properly admitted into evidence.
Expert Testimony on Firearms Identification
Appellant maintains the trial court abused its discretion and violated his due process rights by allowing the prosecution's ballistics expert to testify he was 100 percent sure the bullet casing found at the crime scene was fired from the gun that was found in appellant's car. Appellant would have us believe the field of firearms identification is not sufficiently reliable to satisfy the admissibility requirements for evidence related to new scientific techniques, and even if it is, the trial court prejudicially erred by allowing the expert to express his opinion in terms of absolute certainty. We cannot agree.
The prosecution's ballistics expert was Thomas Matsudaira. A forensic scientist with over 20 years of experience working in the Firearms and Toolmark division of the Orange County Crime lab, Matsudaira testified his primary responsibility is to test-fire guns that are recovered by the police and compare the expended bullets and/or casings from those guns to bullets and/or casings that are found at the scene of a crime. That comparison process, he said, is based on the individuality of toolmarks (scratches, striations and impressions) that are left on a bullet and its casing when they are fired from a gun. The unique nature of the toolmarks allows him to trace a bullet and/or casing back to the gun from which it was fired.
Matsudaira told the jury he test-fired the Glock handgun that was recovered from appellant's car and compared a bullet casing from that testing to the bullet casing that was found at the crime scene. Using a specialized microscope, he examined the toolmarks on each of the casings and determined there was a high degree of correspondence between them. The correspondence level was so great that Matsudaira said he was 100 percent sure the two casings were fired from the same gun, i.e., appellant's Glock.
On cross-examination, Matsudaira admitted he was aware of academic reports that have questioned the reliability of toolmark identification comparisons. He also conceded the comparison technique he utilized in this case is purely subjective. However, he said that technique is generally accepted in the scientific community, and the findings he reached in this case were verified by another scientist in his lab.
Expert testimony on firearms identification is widely accepted in courtrooms throughout the country. (4 Faigman et al., Modern Scientific Evidence, The Law and Science of Expert Testimony (2014-2015 ed.), section 35:3 [noting such testimony "is admissible in every American jurisdiction."] Indeed, the California Supreme Court ruled 10 years ago that the process of comparing toolmarks for the purpose of determining whether a test-fired bullet and a crime-scene bullet were fired from the same gun had become such a well-established technique that it does not require proof of reliability under People v. Kelly (1976) 17 Cal.3d 24. (People v. Cowan (2010) 50 Cal.4th 401, 468-470.) Not only is that process generally accepted in the scientific community, it is readily understandable from the jury's prospective because it merely isolates physical evidence for comparison, akin to fingerprint analysis and other types of forensic pattern matching techniques. (Id. at pp. 470-471; accord, United States v. Felix (9th Cir. 2018) 727 Fed.Appx. 921, 924-925.)
As Matsudaira acknowledged during his testimony, the National Academy of Sciences has issued reports calling for greater judicial scrutiny of firearms identification testimony. (See, e.g., National Research Council of the National Academies, Ballistic Imaging (2008); National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009).) These reports have criticized the subjective nature of such testimony and called into question some of the assumptions upon which the field of firearms identification is based, such as the belief that no two firearms produce the same toolmarks when fired. But the reports do not call for the wholesale abandonment of expert testimony in this area, and appellant has not drawn our attention to any cases where such testimony has been excluded altogether. We do not believe it was improper for the trial court to allow Matsudaira to testify. (See United States v. Ashburn (E.D.N.Y. 2015) 88 F.Supp.3d 239 [even though some commentators have questioned the assumptions and subjectivity inherent in the toolmark comparison process, the pattern-matching technique is widely accepted in the forensic science community and is considered to be a reliable testing method by the courts].)
However, we also recognize that in light of these and other such reports, courts have begun to place restrictions on how a firearms identification expert may express his or her opinions. Although some courts have upheld the admission of unqualified opinions similar to the one given by Matsudaira in this case (see, e.g., United States v. Casey (D.P.R. 2013) 928 F.Supp.2d 397, 400), the prevailing judicial practice is to limit the degree of certainty to which a firearms identification expert may opine. (See, e.g., Commonwealth v. Pytou Heang (Mass. 2011) 942 N.E.2d 927, 945 [expert may only offer his opinion to a "'reasonable degree of ballistic certainty'"].) We need not delve deeply into this issue. Even if the court erred in allowing Matsudaira to testify he was 100 percent sure the bullet casing found at the crime scene came from appellant's gun, it is not reasonably probable appellant would have obtained a more favorable result at trial if Matsudaira had been required to express his opinion in less certain terms. Appellant confessed to shooting Villegas during his interview with Detective Trapp, and he told police informant Terrones that he shot someone on the 91 Freeway the day after Villegas was murdered. Given these admissions, identification was not an issue, and the admission of Matsudaira's testimony as to his certainty was harmless.
Jury Instructions on Imperfect Self-Defense
Appellant complains the trial court erred in refusing to give his requested jury instruction on imperfect self-defense. The claim is not well taken.
At trial, the jury was instructed per CALCRIM No. 571 as follows: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] . . . [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was 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; BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] . . . In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant." (Italics added.)
Appellant asked the trial court to supplement the italicized verbiage with a special "pinpoint" instruction which stated, "In evaluating imperfect self-defense, you may consider the circumstances as they were perceived by the defendant, including his mental condition and any prior experiences that may have affected his perception of the events." Thinking this special instruction was superfluous and argumentative, the trial court refused to give it. The court felt CALCRIM No. 571 covered everything the jury needed to know in terms of evaluating appellant's subjective beliefs at the time of the shooting and whether he acted in imperfect self-defense in killing Villegas. We concur with that assessment. Therefore, we need not consider whether appellant's proposed instruction was properly excluded as being argumentative.
Jury instructions should be interpreted "'to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.) Unless there is a reasonable likelihood the jury misunderstood the subject instruction in a manner that violated the defendant's rights, reversal is not required. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246, abrogated on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Rogers (2006) 39 Cal.4th 826, 873.) In making this determination, we must consider the record as a whole, including the specific instruction or instructions at issue, the evidence adduced at trial, and the arguments of counsel. (People v. Cain (1995) 10 Cal.4th 1, 36-37; People v. McPeters (1992) 2 Cal.4th 1148, 1191, questioned on another point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.)
Appellant asserts that in the absence of his special instruction, the jurors likely construed CALCRIM No. 571 to mean they could only consider the objective circumstances surrounding the shooting in determining whether his belief in the need for self-defense was reasonable. However, CALCRIM No. 571 permitted the jurors to consider "all the circumstances," not just the ones pertaining to the shooting itself. This broad phrasing undermines appellant's cramped interpretation of the instruction. By its terms, there was nothing in CALCRIM No. 571 that prevented the jurors from considering appellant's mental condition or prior experiences.
Moreover, the record shows defense counsel focused heavily on those circumstances during his closing argument. Based on the extensive evidence of appellant's drug dealing and his prior experiences being followed and kidnapped, defense counsel argued appellant had a heightened sensitivity to the dangers he perceived at the time of the shooting and that due to his having been followed, harassed and kidnapped in the past, appellant panicked and shot Villegas in unreasonable self-defense. Given defense counsel's argument about these "circumstances," and the broad, unlimited phrasing of CALCRIM No. 571, it is not reasonably likely the jurors construed the instruction in the manner appellant claims, or that the instruction undermined the fairness of his trial in any other respect. The instruction is therefore not cause for reversal.
Closing Argument
Lastly, appellant asserts the prosecutor committed prejudicial misconduct in closing argument. His claim has two components. First, the prosecutor misstated the law on imperfect self-defense. Second, the trial court failed to take corrective measures to cure the prosecutor's misstatement. We do not believe the challenged remarks rise to the level of reversible misconduct.
"Under California law, a prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights . . . but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action '"so infected the trial with unfairness as to make the resulting conviction a denial of due process."' [Citations.]" (People v. Rundle (2008) 43 Cal.4th 76, 157, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22)
During the initial phase of his closing argument, the prosecutor contended the evidence did not support a conviction for voluntary manslaughter on the theory of imperfect self-defense. In support of this argument, the prosecutor pointed out that no one in Villegas' truck actually did anything to provoke appellant or pose an imminent danger to him. Rather, they were just travelling home on the freeway, minding their own business when appellant opened fire on them.
In responding to this argument, defense counsel agreed Villegas was an innocent victim who was simply "in the wrong place at the wrong time." However, while defense counsel conceded it wasn't Villegas' white truck that followed appellant from the restaurant, he argued there was another white truck in the area that was causing appellant problems. Counsel posited that when appellant saw Villegas' truck on the freeway, he mistakenly thought it was the one from the restaurant. So when appellant saw Villegas reach for something "underneath," he misperceived the situation and believed he was in imminent danger of mortal harm. Defense counsel argued appellant's experiences selling drugs and being kidnapped in Mexico fueled appellant's belief in this regard. Therefore, even though his belief in the need for self-defense was not objectively reasonable, the doctrine of imperfect self-defense applied, and appellant was guilty of voluntary manslaughter, as opposed to murder.
In rebuttal, the prosecutor argued it was no defense to the crime of murder that appellant was a drug dealer who had been previously kidnapped in Mexico. He also stated, "[T]here is no oops, got the wrong truck mistake defense" that could help appellant. Urging the jury to look at "the true state of the facts in this case," the prosecutor said that because the people in Villegas' truck did not actually do anything provocative, it didn't matter what happened with the other truck: The fact appellant shot the "wrong truck" was not a defense, given the way the shooting actually played out.
Defense counsel objected to this argument as an "implied misstatement of the law." During a sidebar in chambers, he asserted appellant's mistaken belief Villegas' truck was the one that had been following him was relevant to his claim of imperfect self-defense because that defense was based on appellant's perceptions at the time of the shooting. So while the prosecutor could certainly argue the facts did not support that defense, it was improper for him to suggest imperfect self-defense was inapt as a matter of law simply because appellant got the two trucks confused.
For his part, the prosecutor insisted he was only arguing the facts not the law. However, the trial court felt defense counsel had a point. It was concerned the prosecutor's argument gave the impression that even if appellant mistook Villegas' truck for the one that was allegedly following and harassing him, imperfect self-defense did not apply as a matter of law. Therefore, he instructed the prosecutor to clarify that issue for the jury. Defense counsel wanted the court to do that, but the court declined and left it to the prosecutor to "clean it up."
Back in front of the jury, the prosecutor argued that assuming appellant got Villegas' truck mixed up with the truck that allegedly followed him from the restaurant, imperfect self-defense did not apply and should be summarily rejected because Villegas did not actually do anything to justify the use of deadly force. As to that issue, the prosecutor maintained appellant's assertion that he saw Villegas reaching for something right before the shooting was entirely unreasonable, and based on "the true facts of the case," appellant was guilty of murder, not manslaughter.
After the prosecutor finished his rebuttal argument, defense counsel renewed his objection. He believed the prosecutor had failed to correct his initial misstatement that the possibility of appellant mixing up the two white trucks was no defense. Accordingly, defense counsel asked the court to clarify that issue for the jury, or to give him "a two-minute surrebuttal" to allow him to do so. However, the judge did not think that was necessary, saying he was "satisfied with the record the way it is."
Appellant is anything but satisfied. In his view, the prosecutor did not go far enough in terms of acknowledging the legal viability of his theory of imperfect self- defense. Respondent, on the other hand, argues it doesn't matter because the prosecutor's remarks about the wrong truck were aimed at negating perfect self-defense, not imperfect self-defense. However, appellant's sole theory of the case was imperfect self-defense, and that was the only defense that was discussed in chambers after defense counsel voiced his objection to the prosecutor's remarks. Furthermore, when the prosecutor made his clarifying remarks on rebuttal about appellant allegedly shooting at the wrong truck, he specifically referred to imperfect self-defense and voluntary manslaughter. On this record, it seems unlikely the jury would have construed the challenged remarks as applying only to perfect self-defense.
Nevertheless, after the trial court directed the prosecutor to clarify his comments about the wrong truck, the prosecutor remedied any suggestion that imperfect self-defense did not apply simply because appellant allegedly got Villegas' truck mixed up with the one that initially followed him from the restaurant. Rather than arguing this circumstance rendered imperfect self-defense inapt as a matter of law, the prosecutor told the jury that imperfect self-defense did not apply "based on the facts of this case" because, contrary to what appellant alleged during his police interview, Villegas did not actually reach for anything before he was slain. This was sufficient to cure any confusion that may have arisen by virtue of the prosecutor's earlier comments on this topic.
Appellant also contends the prosecutor committed misconduct by implying his kidnapping in Mexico was irrelevant to his claim of imperfect self-defense. However, as appellant admits, he did not object to this aspect of the prosecutor's argument. Therefore, he has forfeited his right to challenge it on appeal. (People v. Friend (2009) 47 Cal.4th 1, 29.)
At bottom, we are satisfied appellant received a fair trial. Whether considered individually or in conjunction with one another, the purported errors he assigns on appeal do not warrant a reversal.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.