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People v. Palomar

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 9, 2012
2d Crim. No. B226769 (Cal. Ct. App. Jan. 9, 2012)

Opinion

2d Crim. No. B226769 Super. Ct. No. 1284585

01-09-2012

THE PEOPLE, Plaintiff and Respondent, v. ARTURO FRANCO PALOMAR, JR., et al., Defendants and Appellants.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Arturo Franco Palomar, Jr. Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant Jose Juan Morales. Kamala D. Harris, Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Barbara County)

Arturo Franco Palomar, Jr., and Jose Juan Morales appeal the judgments entered following a jury trial in which Palomar was convicted of first degree murder and Morales was convicted of second degree murder (Pen. Code, §§ 187, subd. (a), 189). The jury also found as to each appellant that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that Palomar personally used a deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced Palomar to a state prison term of 25 years to life plus one year. Morales received a sentence of 15 years to life. Appellants collectively contend the court erred in admitting evidence regarding third-party threats and a "gangster rap" song. Morales also argues that his conviction is based on an improper legal theory, while Palomar further alleges instructional error and prosecutorial misconduct. We affirm.

All further undesignated statutory references are to the Penal Code.

Both claims are briefed by Morales, and Palomar joins in Morales's arguments to the extent he can benefit from them. (Cal. Rules of Court, rule 8.200(a)(5).)

STATEMENT OF FACTS

Appellants, both known members of the Guadalupe gang, were convicted of murdering rival gang member James Christie during a fight outside a liquor store. Appellants had driven to the liquor store that night in Palomar's car along with fellow gang members Leonel Torres, Miguel Aguilera, and Francisco Rodriguez. Morales and Torres waited outside while Palomar and Rodriquez went into the store to buy beer. Aguilera stayed in the car.

Rodriguez, the prosecution's main witness, was originally charged with Christie's murder along with appellants. In exchange for his testimony, the prosecution allowed him to plead guilty to the lesser charge of being an accessory after the fact with the admission that the crime was committed for the benefit of his gang. Aguilera, who also testified for the prosecution, was never charged in connection with the incident.

Palomar and Rodriquez were exiting the store when Christie arrived. As Christie was about to enter the store, someone in the group said something to him. Christie turned around and Torres asked, "Who the fuck are you[?]" Christie looked directly at Torres and replied, "I am Wicked from Santa Maria Projects." In making this statement, Christie was identifying himself as a member of the Santa Maria Northwest gang.

Torres immediately rushed Christie and began swinging at him. Appellants followed Torres and also began swinging at Christie, who was trying to defend himself. After the fight moved away from the front of the store and into the parking lot, Rodriguez saw Palomar and Torres punching Christie as Morales stood nearby. The fighting stopped after Rodriquez yelled, "let him go one on one." Torres and Christie then began fighting in the street. Christie backed up toward appellants as Torres pursued him. Morales tried to kick Christie and Palomar attempted to punch him.

Rodriguez attempted to defuse the situation by asking Christie why he was in town. Rodriguez believed that Christie would get a "pass" if he was visiting family. Christie responded that he was visiting his cousin "Huero." Rodriguez asked if Huero was a Guadalupe gang member, and Christie replied that his cousin was also a member of the Santa Maria gang.

In the meantime, Aguilera had exited the vehicle and approached the group to see what was happening. Palomar told Aguilera to retrieve a knife from the glove compartment. Aguilera refused and told Palomar to "leave that shit in there." Aguilera approached Christie and said, "What the fuck are you doing?" Aguilera also said, "We're on camera," referring to the store's surveillance monitor. Aguilera then returned to the car.

As Rodriguez went to retrieve the 24-pack of beer he had left near the front of the store, he saw Torres kicking Christie in the chest. Rodriguez then saw Palomar stab Christie in the upper chest. Torres ran away as appellants, Rodriguez, and Aguilera left in Palomar's car.

Several eyewitnesses to the incident gave testimony indicating that Christie was unarmed throughout the course of the attack and never appeared to present any threat to his assailants. The store clerk, Ammar Durghalli, and his nephew, Adrian Hannoun, testified that they saw one of the assailants throw a bottle that narrowly missed Christie's head.

The police responded to the scene to find Christie lying on the ground about two feet from the store's front door. Paramedics were already treating Christie, who was bleeding from a stab wound to his upper right chest. Christie went into cardiac arrest and was transported to the hospital, where he died. An autopsy subsequently revealed that Christie had died as the result of the stab wound to his chest. The coroner testified that Christie could have survived from 15 to 30 minutes after the wound was inflicted. Christie also had small puncture wounds on the back of his arm and multiple abrasions.

Footage of the incident captured on the store's surveillance camera was played for the jury. One of the responding officers viewed the video and recognized appellants, Rodriguez, Torres, and Aguilera from prior contacts. The footage depicts Palomar hitting Christie in the chest in the area where he was stabbed. Immediately thereafter, Morales is seen throwing a beer bottle toward Christie's head from about a foot away.

A couple of weeks after the murder, Durghalli was approached outside a health club by Torres's cousin, Ricardo Frost. Frost said that Durghalli knew Torres had been present during the crime, but Durghalli denied any knowledge of Torres's involvement. About a week later, Frost came into Durghalli's store and said, "You told, didn't you?" Durghalli disagreed. Frost stated that Torres had told him Durghalli had not implicated Torres, then made a threatening gesture to let Durghalli know what would happen to him if he did so. Frost then confronted a customer in the store and mentioned his gang affiliation. Durghalli felt "very intimidated" as a result of the incident, and still feared for his and his family's safety at the time of trial. Rodriquez was nervous about testifying because he knew he had been "green lighted" for death by the gang. He had to relocate after the trial and would never be able to return to Guadalupe again.

Santa Barbara County Sheriff's Detective Steven Gonzalez testified as a gang expert for the prosecution. The Guadalupe gang, also known as Guadalupe 13, claimed the entire town of Guadalupe as its territory. Members of the gang considered any Santa Maria gang member to be a rival. Christie was a member of the Northwest gang, which was based in Santa Maria. At the time of trial, the Guadalupe gang had about 100 fully-documented members and associates. The gang's primary activities include assault, assault with a deadly weapon, battery, vandalism, murder, robbery, and burglary. Detective Gonzalez identified three members of the gang who were convicted of separate gang-related assaults with a deadly weapon committed between 2003 and 2007.

Detective Gonzalez searched YouTube and found two songs that referred to the Guadalupe gang. One of the songs, which was played for the jury, referred to Torres by his gang moniker "Travieso." The other song was written and performed by Rodriguez. On MySpace, the detective found photographs of Guadalupe gang members, including Palomar and Rodriguez.

Appellants were both admitted members of the Guadalupe gang and had gang-related tattoos. After Palomar was arrested and booked, he had a "G" tattooed on the top of his head. Several items showing appellants' affiliation with the gang were found in their homes. Photographs presented at trial depicted appellants flashing gang hand signs with other gang members, including Torres.

Rodriguez was also an active member of the gang at the time of the stabbing, and had "rapped" about the gang for many years. Morales had also rapped with Rodriguez about the Guadalupe gang. In one song, Rodriguez rapped that the gang's members were willing to shoot anyone who disrespected the gang. Torres and Frost were also documented members of the Guadalupe gang. Aguilera was an active member of the gang prior to his release from prison. At the time of the stabbing, he was trying to get out of the gang and was merely associating with other members.

In gang culture, "hitting up" or asking "where are you from?" is a means of identifying a person's gang affiliation. If a rival gang member came into the Guadalupe gang's territory and did not back down after being "hit up," the Guadalupe gang members would consider themselves obligated to violently retaliate. If a rival gang member was able to hold his own in a fight with multiple Guadalupe gang members, more violent measures, including a stabbing, would be expected. Allowing the rival to walk away would be considered a sign of weakness. Based on the video of the incident and a hypothetical based on the facts of the case, Detective Gonzalez opined that the crime was committed for the benefit of the Guadalupe gang. News coverage of the killing would bolster the reputation of the gang as well as the individual members who were involved. The killing would also be perceived as providing respect, which is of paramount importance in gang culture.

Morales testified in his own behalf. According to Morales, the Guadalupe gang was inactive at the time of the incident because most of its members were incarcerated. Morales got a gang-related tattoo when he was 15 because he was young and was hanging out with the wrong crowd. He denied having other tattoos that were gang related, and claimed he had never been a gang member.

Morales also claimed he did not intend to participate in the fight with Christie, and that he was merely an observer until he threw a beer bottle at Christie. When Morales saw Palomar "punch" Christie in the upper chest, he simultaneously threw the bottle at Christie. Morales threw the bottle because he was intoxicated and Christie was fighting with Torres. Morales made the decision to throw the bottle before Palomar stabbed Christie; he did not know that Christie had been stabbed, or even that a knife was present.

DISCUSSION


I.


Evidence of Third Party Threats Against Witness Durghalli

Appellants claim the court violated their due process rights by admitting evidence that Durghalli was threatened by Frost. We conclude otherwise.

Because appellants did not object to the evidence on due process grounds below, their claim on appeal is limited to the "very narrow due process argument" that the alleged error in admitting the evidence over his objection under Evidence Code section 352 "had the additional legal consequence of violating due process." (People v. Partida (2005) 37 Cal.4th 428, 435.)

Appellants fail to establish that the court abused its discretion in denying their motion to exclude the evidence under Evidence Code section 353, much less that the error amounted to a violation of their due process rights. "Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative." (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) "A trial court's admission of evidence, including gang testimony, is reviewed for abuse of discretion. [Citations.] The trial court's ruling will not be disturbed in the absence of a showing it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. [Citation.]" (Id. at p. 193.)

To establish that the Guadalupe gang was a criminal street gang as contemplated in section 186.22, the prosecution had to prove among other things that the gang's primary activities included one or more of the criminal offenses enumerated in the statute. "Evidence of past or present conduct by gang members involving the commission of one or more of the statutorily enumerated crimes is relevant in determining the group's primary activities. Both past and present offenses have some tendency in reason to show the group's primary activity (see Evid. Code, § 210) and therefore fall within the general rule of admissibility (id., § 351)." (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) One of the enumerated crimes is making a criminal threat in violation of section 422. (§ 186.22, subd. (e)(24).) The evidence at issue established that Frost, a Guadalupe gang member, made a criminal threat against Durghalli. The court therefore did not abuse its discretion in concluding the evidence was relevant to prove the gang enhancement allegation. (Sengpadychith, at p. 323.) Although the court concluded otherwise, the evidence was also relevant to the jury's assessment of Durghalli's credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142; People v. Burgener (2003) 29 Cal.4th 833, 869.)

Appellants also fail to demonstrate that the evidence was substantially more prejudicial than probative, such that its exclusion was required under Evidence Code section 352. Appellants disputed the existence of the Guadalupe gang, and the evidence regarding Frost's threats corroborated the prosecution expert's testimony on the subject. Moreover, the evidence was brief and relatively innocuous when compared to other evidence that directly implicated appellants in the murder of Christie. Because this is not the sort of evidence that "uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues" (People v. Karis (1988) 46 Cal.3d 612, 638), the court acted within its discretion in declining to exclude it under Evidence Code section 352.

Even if appellants could establish that the evidence should have been excluded under Evidence Code section 352, such error would amount to a due process violation only if the evidence was so prejudicial that it rendered their trial fundamentally unfair. (People v. Falsetta (1999) 21 Cal.4th 903, 913.) Appellants fail to make such a showing. "[G]enerally, violations of state evidentiary rules do not rise to the level of federal constitutional error." (People v. Benavides (2005) 35 Cal.4th 69, 91.) This is not a case in which the court admitted "extremely and uniquely inflammatory" gang evidence from which no permissible inferences could be drawn. (People v. Albarran (2007) 149 Cal.App.4th 214, 230 (Albarran).)

In arguing to the contrary, appellants primarily rely on Albarran, supra, 149 Cal.App.4th at pages 230-231. In concluding that the trial court in that case had erred in finding that certain gang-related evidence was admissible to prove the defendant's motive and intent in committing the underlying charges, the Court of Appeal also expressed a "doubt" whether evidence that the gang had made death threats against the police was admissible to prove the gang enhancement. (Id. at p. 228, fn. 11.)

Albarran does not aid appellants. The court's statement "doubting" the relevance of the evidence to prove the gang enhancement is equivocal dicta. In any event, evidence regarding threats to kill police officers is infinitely more inflammatory than the evidence at issue here. Moreover, the Albarran court's conclusion that the defendant had suffered a due process violation was not based solely on the evidence regarding the threats, but rather "a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges." (Albarran, supra, 149 Cal.App.4th at p. 227.) By contrast, appellants assert a due process violation based on a single piece of evidence, in a case in which the concededly admissible evidence of their guilt was overwhelming. Appellants' due process claim accordingly fails.

II.


"Gangster Rap" Song

Appellants contend the court abused its discretion in admitting a "gangster rap" song about the Guadalupe gang that refers to Torres by his gang moniker. They argue that the song should have been excluded under Evidence Code section 352 because they "did not write, record, or perform the song," nor were they "mentioned in the song or linked to it in any way." We conclude that the song was properly admitted.

Appellants did not object at trial to the admission of another rap song in which Torres and Rodriguez performed. On appeal, they acknowledge that the song was "[a]rguably" relevant to Rodriquez's credibility because "[t]he song's violent lyrics tended to undermine testimony by Rodriguez that he tried to diffuse the fight."

"Trial courts have wide discretion in determining the relevancy of evidence." (People v. Vargas (2001) 91 Cal.App.4th 506, 545.) "'Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.' [Citation.] This standard of review applies to a trial court's determination of the relevance of evidence, as well as to whether the evidence's probative value is substantially outweighed by its prejudicial effect. [Citations.] The trial court's 'discretion is only abused where there is a clear showing [it] exceeded the bounds of reason, all of the circumstances being considered.'" (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.)

The court acted within its discretion in finding that the song was relevant to prove the gang enhancement allegation, and that its probative value was not substantially outweighed by its potential for prejudice. Contrary to appellants' claim, the court was not precluded from admitting the evidence on the ground that the song was not written, performed, or recorded by appellants. The authority he cites for that proposition are cases in which rap songs were offered to prove the defendant's state of mind. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1374; People v. Zepeda (2008) 167 Cal.App.4th 25, 34-45.) Here, the prosecution's gang expert testified that the lyrics of the song demonstrated that the Guadalupe gang qualifies as a criminal street gang under section 186.22, an issue that was vigorously contested at trial. Although the authors and performers of the song are never identified, the song mentions two members of the Guadalupe gang and the "real g's," an apparent reference to the gang. The song also refers to "protecting the block" and having "a glock on the fucking cops," and speaks of "homies doing life in a pen for committing a crime . . . ." These lyrics had a logical tendency to prove that the Guadalupe gang existed and that its members engaged in criminal activity. Moreover, the lyrics are typical of those heard in other gangster rap songs. Even if we were to conclude that the court abused its discretion in admitting the evidence, the error would be harmless. (Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

III.


Natural and Probable Consequences

Morales contends that the jury was presented with a legally and factually erroneous theory of his guilt under the natural and probable consequences doctrine. He further claims that because the jury's verdict may have been based on this erroneous theory, his conviction must be reversed. We conclude otherwise.

In determining whether the jury may have convicted Morales based on an invalid theory, we review the instructions as a whole in conjunction with the entire trial record. (People v. Bland (2002) 28 Cal.4th 313, 332.) We must presume the jurors were capable of understanding and following the instructions and admonitions they were given. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Morales was charged with murder as an aider and abettor of a gang-related assault under the natural and probable consequences doctrine. "Aider-abettor liability exists when a person who does not directly commit a crime assists the direct perpetrator by aid or encouragement, with knowledge of the perpetrator's criminal intent and with the intent to help him carry out the offense. [Citation.]" (People v. Miranda (2011) 192 Cal.App.4th 398, 407.) "Under the natural and probable consequences doctrine, an aider and abettor is guilty of not only the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the actual perpetrator. The defendant's knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. [Citation.] The elements of aider and abettor liability under this theory are: the defendant acted with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime; (4) the defendant's confederate committed an offense other than the target crime; and (5) the offense committed by the confederate was a natural and probable consequence of the target crime that the defendant aided and abetted. [Citation.]" (Id. at pp. 407-408.) Because escalating violence is a foreseeable consequence to be expected in gang confrontations, gang members can be found guilty of murder on the theory that the crime was a natural and probable consequence of a gang-related assault in which they participated. (See People v. Medina (2009) 46 Cal.4th 913, 921-928, and cases cited therein; People v. Ayala (2010) 181 Cal.App.4th 1440, 1443, 1448-1453.)

The jury was instructed in accordance with CALCRIM No. 403 that Morales was guilty of murder if the prosecution proved that (1) he was guilty of committing either assault by means of force likely to produce great bodily injury (GBI assault) or assault with a deadly weapon (§ 245, subd. (a)); (2) "[d]uring the commission of" the assault, "a coparticipant" in the offense committed murder; and (3) under the circumstances, a reasonable person in Morales's position would have known that the murder was a natural and probable consequence of the assault. The instruction further provided: "The People are alleging that the defendant originally intended to aid and abet either Penal Code 245(a) (Assault with force likely to produce great bodily harm) or Penal [C]ode 245(a) (Assault with a deadly weapon). [¶] [Morales is] guilty of Penal Code 187 (Murder) . . . if you decide that [he] aided and abetted one of these crimes and that Penal Code 187 (Murder) . . . was the natural and probable result of one of these crimes. However, you do not need to agree about which of these two crimes the defendant aided and abetted."

In his closing argument, the prosecutor asserted that Morales could be found guilty of assault as an aider and abettor of (1) the GBI assault Torres and/or Palomar committed by punching and kicking Christie; or (2) the assault with a deadly weapon Palomar committed when he stabbed Christie. The prosecutor argued that Morales could also be found guilty as the actual perpetrator of an assault with a deadly weapon, which he committed when he threw the bottle at Christie's head, and that Christie's murder was a natural and probable consequence of that crime. The prosecutor further asserted that it was "[n]ot required under CALCRIM 403 that Morales swung the bottle before the stabbing occurred. The crime is not committed complete [sic] until Mr. Christie died. So if Palomar stabs first and Morales throws the bottle second, fine. If Morales swings first and Palomar stabs second, fine, either one is sufficient. You will see no instruction that says we must prove that one happened before the other. Under natural and probable consequence the order of which the stab and the swung [sic] of the bottle occurred is totally irrelevant."

Morales contends, as he did below, that the prosecutor presented the jury with a legally and factually invalid theory in asserting that Morales's liability for murder under the natural and probable consequences doctrine could be predicated on an assault he perpetrated after Palomar had stabbed Christie. He claims that this error compels the reversal of his conviction because it cannot be determined whether the jury convicted him on this erroneous theory. We conclude otherwise.

The instructions the jury was given plainly provided that Morales could be found guilty of murder under the natural and probable consequences doctrine only if the evidence established that a coparticipant committed the crime during an assault that Morales aided and abetted. Although the prosecutor's arguments conflicted with these instructions, we presume the jury heeded the court's instruction that the attorneys' arguments were not evidence and to follow the court's instructions if counsels' comments on the law conflicted with those instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436.)

In order to find Morales guilty under the prosecutor's theory, the jury would have had to find that (1) Palomar was a coparticipant in Morales's assault on Christie; and (2) Palomar murdered Christie during that assault, i.e., while Morales's assault was in progress. Morales asserts that he threw the bottle after Palomar stabbed Christie, but the evidence supported a finding that the two acts were essentially contemporaneous. Morales also admitted in his testimony that he formed the intent to assault Christie when he picked up the bottle, which indisputably preceded the stabbing. Moreover, Morales admitted in his testimony that he threw the bottle because Christie "was fighting" with his friend Torres. As the instructions made clear, the relevant determination was whether Christie's murder was a natural and probable consequence of a gang assault in which Morales indisputably participated. In this regard, this case is no different from others in which the jury has been called on to decide whether a murder was a foreseeable consequence of a gang-related assault. (See, e.g., People v. Medina, supra, 46 Cal.4th at pp. 921-928; People v. Ayala, supra, 181 Cal.App.4th at pp. 1449-1450, and cases cited therein.) Because the record demonstrates a reasonable probability that the jury found Morales guilty based on a factually valid theory, Morales's claim fails. (People v. Perez (2005) 35 Cal.4th 1219, 1233; see also Medina, at p. 920 [recognizing that "[a] reasonably foreseeable consequence is to be evaluated under all the factual circumstances . . . and is a factual issue to be resolved by the jury"].)

IV.


Imperfect Self-Defense

Palomar contends the court erred in refusing his request for a jury instruction on imperfect self-defense pursuant to CALCRIM No. 571. He argues that "[w]hile an ordinary person would find [Palomar's] response to Christie's challenge unreasonable or even reprehensible, it was a response recognized by experts in the field of criminal street gangs as well as seasoned gang members to be 'second nature' under the circumstances." We conclude that the instruction was properly refused.

CALCRIM No. 571 provides in pertinent part: "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 or imperfect defense of another. . . . [¶] The defendant acted in imperfect defense of another if: [¶] 1. The defendant actually believed that he or someone else 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. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect defense of another. If the People have not met this burden, you must find the defendant not guilty of murder."
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"Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771.) "[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense. . . . '"[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." . . . [¶] . . . Finally, we reiterate that, just as with perfect self-defense or any defense, '[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.' [Citation.]" (Id. at p. 783, italics omitted.)

The court denied Palomar's request for an instruction on imperfect self-defense because there was no evidence from which the jury could have found that Palomar believed he or someone else was in imminent danger of being killed or suffering great bodily injury. In challenging this finding on appeal, Palomar asserts that a "seasoned gang member" such as himself would have feared not only "dire consequences from the Santa Maria Projects gang should he back down from the challenge," but also "reprisals from his own gang for appearing weak in the face of an adversary should he fail to support his fellow gang members in the fight." In this regard, Palomar has at best identified a potential defense of duress, not imperfect self-defense. Establishing the latter would require proof that Palomar feared imminent harm from Christie. Fear of future gang-related repercussions does not establish imperfect self-defense. (People v. Butler (2009) 46 Cal.4th 847, 868.) Palomar offered no evidence of perceived imminent harm, from Christie or anyone else. On the contrary, eyewitnesses to the incident testified that Christie never posed a threat to his assailants.

Even if evidence of an imminent threat existed, imperfect self-defense cannot be invoked by a defendant who, through his own wrongful conduct, creates the circumstances under which his adversary's attack is legally justified. (In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1.) The undisputed evidence demonstrates that Palomar and his fellow gang members initiated the confrontation, and that Palomar never made any attempt to withdraw from the ensuing altercation. Based on this evidence, the jury found Palomar guilty of premeditated murder. Under the circumstances, any error in failing to instruct the jury on imperfect self-defense as to Palomar was harmless. (See People v. Cruz (2008) 44 Cal.4th 636, 665; Watson, supra, 46 Cal.2d at p. 836.)

V.


Prosecutorial Misconduct

Palomar asserts that his conviction must be reversed due to prosecutorial misconduct. He claims the prosecutor committed misconduct by making allegedly disparaging comments about Palomar's trial counsel. He further claims the prosecutor erroneously implied to the jury that the defense had the burden of proving that Christie had provoked the attack.

We agree with the People that Palomar has forfeited his claim that the prosecutor committed misconduct by misrepresenting the law. "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Palomar did not object to the prosecutor's comments below on that ground, and the record belies his claim to the contrary. Indeed, none of the comments Palomar identifies could be reasonably construed as a misstatement regarding the prosecution's burden of proof.

Counsel did, however, object to comments he characterized as amounting to a personal attack on his integrity. The court found that the comments were a fair response to defense counsel's own comments and argument. We agree with the court's conclusion.

A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] 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 court or the jury.'"' [Citation.]" (People v. Samayoa, supra, 15 Cal.4th at p. 841.) When a claim of prosecutorial misconduct focuses on comments made by the prosecutor to the jury, we inquire whether there is a reasonable likelihood that the jury construed or applied any of the challenged remarks in an objectionable fashion. (People v. Thompson (2010) 49 Cal.4th 79, 127.) Conduct that infringes upon a defendant's constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jury's verdict. (People v. Bolton (1979) 23 Cal.3d 208, 214; Chapman v. California (1967) 386 U.S. 18, 24.) A violation of state law only is cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the improper comment. (People v. Crew (2003) 31 Cal.4th 822, 839; Watson, supra, 46 Cal.2d at p. 836.) In either case, only misconduct that prejudices a defendant requires reversal (People v. Fields (1983) 35 Cal.3d 329, 363), and a timely admonition from the court generally cures any harm (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375).

Palomar takes issue with the prosecutor's arguments that defense counsel was trying to "sell" the jury a story and a "bogus product," "playing [them] as a pawn," and "confus[ing]" them with "smoke and mirrors." The prosecutor painted counsel as "argu[ing] out of both sides of his neck," and characterized Palomar's heat-of-passion defense as "insulting" to both the jurors and the victim's family. The prosecutor also claimed that "on our side we have the truth" and added that Palomar's attorney "didn't really tell you what it [the provocation] was because again he doesn't want you to see the truth." According to Palomar, these comments served no legitimate purpose and "constituted an improper personal attack upon the integrity of defense counsel intended to inflame the jury."

We agree with the trial court that these comments were a permissible response to defense counsel's arguments. "[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (People v. Bemore (2000) 22 Cal.4th 809, 846.) "An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper." (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Appellant fails to explain how the comments at issue here are any different from those deemed permissible in other cases. (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 952-953 [prosecutor argued that defense counsel had "imagined things" and told a "bald-faced lie"]; People v. Stitely (2005) 35 Cal.4th 514, 559-560 [prosecutor characterized defense counsel's arguments as "ridiculous," "outrageous," and a "legal smoke screen"]; People v. Seaton (2001) 26 Cal.4th 598, 663 [prosecutor described the defense case as "'ludicrous,' 'contrived,' 'concocted,' and 'bogus'"]; People v. Medina (1995) 11 Cal.4th 694, 759 [prosecutor argued that "'any experienced defense attorney can twist a little, poke a little, try to draw some speculation, try to get you to buy something'"]; People v. Gionis (1995) 9 Cal.4th 1196, 1215-1217 [prosecutor argued that defense counsel was "arguing out of both sides of his mouth"]; People v. Marquez (1992) 1 Cal.4th 553, 575-576 [prosecutor described a "'heavy, heavy smokescreen that has been laid down [by the defense] to hide the truth from you'"].) As in these prior cases, the prosecutor's arguments here "'did little more than urge the jury not to be influenced by [defense] counsel's arguments, and to instead focus on the testimony and evidence in the case.' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 771.)

Even if it could be said that the prosecutor committed misconduct, any such error is generally cured when the courts give a timely admonition. (People v. Pigage, supra, 112 Cal.App.4th at p. 1375.) After defense counsel objected, the court directed the prosecutor to refrain from any further reference to defense counsel by his name and admonished the jury as follows: "Anything that the attorneys say in their closing arguments is not evidence. Anything they say about any of the attorneys involved in this case is not evidence." We presume the jury understood and heeded this admonition. (People v. Sanchez, supra, 26 Cal.4th at p. 852.) Assuming the error was not cured, it was plainly harmless in light of the overwhelming evidence of Palomar's guilt. (People v. Booker (2011) 51 Cal.4th 141, 186.)

The judgments are affirmed.

NOT TO BE PUBLISHED.

PERREN, J. We concur:

GILBERT, P.J.

COFFEE, J.

Edward H. Bullard, Judge


Superior Court County of Santa Barbara

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Arturo Franco Palomar, Jr.

Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant Jose Juan Morales.

Kamala D. Harris, Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.


Summaries of

People v. Palomar

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 9, 2012
2d Crim. No. B226769 (Cal. Ct. App. Jan. 9, 2012)
Case details for

People v. Palomar

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ARTURO FRANCO PALOMAR, JR., et…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Jan 9, 2012

Citations

2d Crim. No. B226769 (Cal. Ct. App. Jan. 9, 2012)