THE PEOPLE, Plaintiff and Respondent, v. SEAN MICHAEL SHANLEY, Defendant and Appellant.
D082989
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
Filed 10/2/25
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. SEAN MICHAEL SHANLEY, Defendant and Appellant. D082989 (Super. Ct. No. FSB20003774)
APPEAL from a judgment of the Superior Court of San Bernardino County, Mary E. Fuller, Judge. Affirmed.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury found defendant Sean Michael Shanley guilty of first degree murder (Pen. Code, § 187, subd. (a)) with a lying-in-wait special circumstance
Defendant raises several issues on appeal. First, he contends the trial court erred by overruling his objection under Code of Civil Procedure section 231.71 to the prosecutor’s use of peremptory challenges against three prospective jurors whom the defense perceived to be Hispanic.2 On the limited jury selection record before us, we find no error. As to two of the challenged prospective jurors, we conclude defendant failed to develop an adequate record as to their race or perceived race. As to the remaining prospective juror, our de novo review leads us to conclude there is no substantial likelihood that an objectively reasonable person would view race as a factor in the prosecutor’s use of the peremptory challenge. (§ 231.7, subd. (d)(1).)
Second, defendant maintains the trial court erred by failing to instruct the jury about excusable homicide as it relates to his claim that he accidentally shot the victim. Based on the jury’s express findings that defendant intentionally discharged a firearm and intended to kill the victim, we conclude the claimed instructional error was harmless.
Finally, defendant argues the prosecutor committed error during closing argument by undermining the presumption of innocence, shifting the burden of proof to the defense, and commenting on defendant’s failure to call a logical witness whom the prosecutor knew was unavailable. We conclude that by failing to object and request an admonition as to each of these grounds, defendant failed to preserve this challenge for appeal. We further conclude defendant’s alternative claim of ineffective assistance of counsel lacks merit.
Accordingly, we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
At about 10:30 p.m. on May 4, 2020, Isaac Flores was shot in the back of his head while sitting in the driver’s seat of his fiancée’s BMW. Defendant was in the rear passenger seat of that car. The prosecution’s theory was that defendant intentionally shot Flores after learning Flores was a “snitch.” The defense initially suggested someone else shot Flores, but defendant ultimately testified he shot Flores accidentally.
1. Prosecution Evidence
Around noon on May 4, 2020, Flores borrowed his fiancée’s BMW, telling her he was going to run errands. Instead, Flores picked up a friend — Angelica D., who went by the moniker “Sky” — and they drove around while
At this point, both sides determined no cause justified removing the juror, and the trial court asked defense counsel if he wished to exercise a peremptory challenge. He declined. The prosecutor then exercised his third peremptory challenge and excused Prospective Juror No. 61. The court replaced her with Prospective Juror No. 52, who, under questioning by the prosecutor, said she had “no thoughts” on the prosecutor’s single-witness hypothetical. Both parties passed for cause on the jury.
The trial court again asked defense counsel if he wished to use a peremptory challenge to a juror. He declined, and the prosecutor then exercised a fourth peremptory challenge, excusing Prospective Juror No. 79. Defense counsel asked for a sidebar. After the sidebar began, the trial court excused the jury from the courtroom so proceedings could continue in open court with a reporter.
Defense counsel stated, “Your Honor, it appears to me that there has been a . . . systematic exclusion of Hispanic jurors with the People’s exercise of its peremptory challenges. I believe there is a prima facie for showing so, based on what I could tell. And I’m no race genius. But it appears that he is kicking only Hispanic people so far.”
The trial court assessed that of the four prospective jurors as to whom the prosecutor exercised peremptory challenges, Prospective Juror No. 61 “did not appear to be Hispanic,” Prospective Juror No. 74 “possibly could have been Hispanic,” Prospective Juror No. 79 “appeared to be Hispanic,” and Prospective Juror No. 82 “did not appear to be Hispanic.” (Italics added.)
As to Prospective Juror No. 79, the prosecutor maintained that her “race, perceived or not, . . . played no role in [the] exercise of a peremptory challenge.” Instead, the prosecutor explained, “In her questionnaire, . . . she mentioned that she was a victim of identity theft twice. One of the witnesses in this case has suffered an identity theft conviction.15 And that was a heavy basis for my exercise of a peremptory challenge in this case. In addition, during my questioning of [Prospective Juror No. 79] and the other jurors with respect to single-witness testimony, her response also played into any exercise of a prospective juror. But specifically, the exercise and her being a victim of identity theft twice played heavily in my evaluation.” When the court asked the prosecutor to specify this prospective juror’s responses regarding the single-witness rule, the prosecutor conceded that he did not have “specific notes on her response to single-witness testimony,” but the prosecutor recalled that “she agreed with” Prospective Juror No. 74’s “responses to the single-witness testimony hypo.”
Turning to Prospective Juror No. 74, the prosecutor said, “I don’t recall her ethnicity. It weighed no factor in my evaluation of exercising a peremptory challenge. [¶] . . . [¶] She did affirmatively respond . . . to my
Similarly, as to Prospective Juror No. 61, the prosecutor explained: “Likewise. It was her response to the single witness testimony question in hypo that I brought up. In addition, I don’t believe that [she] was of Hispanic descent. It was not obvious to me, based on her appearance that she appeared to be of Hispanic descent. And race, again, play[ed] no factor.”
As to Prospective Juror No. 82 the prosecutor stated: “I don’t believe she is of Hispanic race. She did not appear to be. She appeared to be White. [She] was also young and had limited life experience which was the basis for the exercise of peremptory challenge. And race played no factor in that evaluation.”
The court asked defense counsel which prospective jurors he believed were Hispanic. Counsel responded that, in his view, “all but [Prospective Juror No. 82] are.” When asked specifically about his belief as to Prospective Juror No. 61, counsel explained: “She looks Hispanic to me. I don’t know what to say. I certainly wasn’t going to ask her.” Counsel said he had the “same answer as to all of them.”
On the merits of the prosecutor’s justifications, defense counsel argued that the fact that Prospective Juror No. 79 “had been a prior victim of identity theft . . . defies logic” because logic suggests “that is a good juror for the People” and “not an advantage” for the defense. Regarding the prosecutor’s single-witness-rule justification, defense counsel argued the challenged prospective jurors’ responses were consistent with the unchallenged prospective jurors’ responses:
The information that each of these jurors gave as to the single-witness question by the People was consistent
with everybody else that was on the panel. They all said we want to listen to all of the facts in light of the testimony. But yes. Nobody disagreed with his position that one witness could prove their case.
These people that he has identified that have said an answer that he didn’t like with respect to that question, they answered the same as everybody else, but he singled them out. My feeling is because either it is conscious or unconscious bias.
The trial court, after taking a recess to review its notes and the prospective juror questionnaire responses, overruled the defense objection. Preliminarily, as to the challenged prospective jurors’ perceived race, the court stated: “Of the four jurors excused, there is an agreement by both sides that . . . [Prospective Juror No. 82] . . . appears to be White Anglo-Saxon. That was the court’s observation. [¶] [Prospective Juror No. 79] appears by her name to be Hispanic. [¶] With regard to [Prospective Juror No. 61] and [Prospective Juror No. 74], they may or may not be Hispanic. It’s not obvious based on just looking at them. And nothing that they said specifically indicated that they are Hispanic. But for purposes of this motion, I am going to assume that they are.”
Regarding Prospective Juror No. 79, the trial court stated:
[The prosecutor] has indicated as to [Prospective Juror No. 79] that his reason to excuse her was because she had been the victim of identity theft on two occasions. And he has a prosecution witness who has been convicted of identity theft. And he expects that witness basically to be impeached with that information.
The court is satisfied that there is a high probability that this is a valid reasoning and it is unrelated to conscious or unconscious bias, and bears on this juror’s specific ability to be fair and impartial in judging the credibility of that prosecution witness. (Italics added.)
Each of those prospective jurors voiced concern over the single-witness rule. [Prospective Juror No. 74] stated that she would need more evidence than a single witness. And [Prospective Juror No. 61] stated she would have a difficult time following the one-witness rule.
[The prosecutor] stated that each of these jurors was excused because they voiced difficulties with the one-witness rule. From my notes, none of the other jurors expressed a specific difficulty with applying the single-witness rule.
The court finds it highly probable that the reason again for the peremptory challenge as to each of these jurors is unrelated to conscious or unconscious bias, but is specific to each of these two jurors and bears on that individual juror’s ability to follow the law in this case.
When jury selection resumed, the prosecutor exercised only one more peremptory challenge, bringing the total to five. The court ultimately swore-in 12 trial jurors and three alternate jurors.
3. Analysis
At the outset, we note that our statutorily required de novo review in this case is made difficult by the undeveloped appellate record relating to the threshold issue of whether the challenged prospective jurors are members of a cognizable group. The trial court made no express finding on this issue as to any of the four challenged jurors. As to two of the four, the court merely assumed for purposes of defendant’s objection that they are members of a cognizable group. Under section 231.7, subdivision (j), however, only “the trial court’s express factual findings” are entitled to review under the deferential “substantial evidence” standard. (Italics added.)
Additionally, the record here is lacking not only as to the four challenged prospective jurors, but also as to the selected panelists or the venire as a whole. Without more information about the seated jurors or the venire, we do not have context in which to evaluate defense counsel’s claim that the prosecutor was “kicking only Hispanic people.” (See, e.g., People v. Ramirez (2022) 13 Cal.5th 997, 1088–1089 [a party seeking to make a prima facie showing under Batson/Wheeler “ ‘ “may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the [panelists] in question share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole” ’ ”].) If all the prospective jurors were Hispanic, this charge would carry less weight. If the challenged jurors were the only Hispanic prospective jurors in the venire, the allegation would carry more weight. But without any information about
The stakes are high for everyone when a party objects under section 231.7. An erroneous overruling by a trial judge of a valid objection requires reversal. (
As to defendant’s specific challenges here, we conclude the deficiencies in the record concerning race, ethnicity or nationality preclude meaningful analysis as to Prospective Juror Nos. 61 and 74. The court initially observed that Prospective Juror No. 61 “did not appear to be Hispanic” and Prospective Juror No. 74 “possibly could have been Hispanic,” while later the trial court stated these two prospective jurors “may or may not be Hispanic. It’s not obvious based on just looking at them. And nothing that they said
The record is sufficient, however, as to Prospective Juror No. 79 because the trial court and counsel agreed she appeared Hispanic and her surname is Hispanic. (See Gutierrez, supra, 2 Cal.5th at p. 1156, fn. 2.) But as we now explain, based on our de novo review of the totality of the circumstances pertaining to Prospective Juror No. 79, we conclude on the record before us that “an objectively reasonable person would” not “view race . . . or perceived [race] . . . as a factor in the use of the peremptory challenge.” (
Several circumstances support this conclusion. First, the prosecutor’s rationale for excusing Juror No. 79 is neither presumptively invalid (
Second, only two statutory factors for evaluating non-presumptively invalid justifications apply here. (See
The only other statutory factor that appears to apply is the prosecutor’s failure to question Prospective Juror No. 79 about her questionnaire response indicating she had been the victim of identity theft. (See
Defendant fails to persuade us that other statutory factors apply. For example, he contends the prosecutor “used peremptory challenges disproportionately against [Hispanic prospective jurors] . . . in the present case.” (
Defendant also relies on the fact that, while the prosecutor failed to question Prospective Juror No. 79 about her questionnaire response, the prosecutor did question Prospective Juror No. 55 about his response relating his past experience as a crime victim. Defendant maintains this disparate questioning implicates section 231.7, subdivision (d)(3)(D), which sets forth as a factor “[w]hether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar . . . answers but were not the subject of a peremptory challenge by that party.” We disagree. To begin, defendant has not shown that Prospective Juror No. 79 and Prospective Juror No. 55 “are not members of the same cognizable group.” (Ibid.) To the contrary, sealed portions of the record indicate Prospective Juror No. 55 has a Hispanic surname, thus suggesting he and Prospective Juror No. 79 are members of the same cognizable group. Accordingly, this statutory factor does not apply.
Even if it did apply, defendant did not raise this argument in the trial court, which denied the prosecutor the opportunity to provide a race-neutral
Second, there are valid, race-neutral reasons for questioning Prospective Juror No. 79 and Prospective Juror No. 55 differently about their experiences as crime victims. Prospective Juror No. 79 reported that she had been the victim of identity theft. One of the prosecutor’s key witnesses, Samantha — whose testimony included the key detail that defendant heard Flores was “ ‘no good’ ” and that defendant said he was “ ‘going to get this fool’ ” — had identity theft convictions. By contrast, Prospective Juror No. 55 revealed he had been the victim of a vehicle theft and a home burglary. The prosecution witnesses who had convictions for these offenses were less crucial to the prosecution case (e.g., Dominic, who had been convicted of burglary,
On balance, our de novo review of the record leads us to conclude there is not “a substantial likelihood that an objectively reasonable person would view race . . . or perceived [race] . . . as a factor in the use of the [prosecutor’s] peremptory challenge[s]” here.22 (
Defendant contends the trial court erred by failing to instruct the jury regarding excusable homicide based on accident or misfortune principles. (See Pen. Code, § 195 [“Homicide is excusable [¶] . . . [¶] [w]hen committed by accident or misfortune.”; id., § 26 [“[a]ll persons are capable of committing crimes except those [¶] . . . [¶] who committed the act . . . through misfortune or by accident”].) He contends his testimony constituted substantial evidence that his shooting of Flores was accidental and, thus, required the trial court to instruct the jury regarding accident principles. (See People v. Gonzalez (2018) 5 Cal.5th 186, 199, fn. 3 [a claim of “accident” in response to a murder charge is “a request for [a pinpoint] instruction that negates the intent element of malice murder” and must be given when “ ‘ “there is evidence supportive of the theory” ’ ”].) Defendant asserts the error is subject to review under the heightened Chapman23 “beyond a reasonable doubt” standard that applies to errors of federal constitutional dimension.
The People concede defendant’s testimony constituted substantial evidence warranting a pinpoint instruction on accidental homicide. But they contend the error is subject to review under the lower Watson24 “reasonably probable” standard that applies to errors under state law. (See People v. Sandoval (2015) 62 Cal.4th 394, 421–422.)
We accept the People’s concession that the trial court erred by failing to instruct the jury regarding accident and misfortune principles. (See People v. Villanueva (2008) 169 Cal.App.4th 41, 54 [“When a murder defendant relies
Instructional error is harmless under the Chapman standard when “ ‘ “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” ’ ” (People v. Scully (2021) 11 Cal.5th 542, 595 (Scully); see In re Lopez (2023) 14 Cal.5th 562, 584–585 [“ ‘The reviewing court examines what the jury necessarily did find and asks whether it would be impossible, on the evidence, for the jury to find that without also finding the missing fact as well.’ ” (Italics omitted.)].) Here, several of the jury’s findings indicate the jury necessarily resolved defendant’s accidental homicide claim adversely to him.
First, and most directly, the jury found true the firearm enhancement allegation “that in the commission of the [murder], the defendant . . . personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death.” Second, in finding the lying-in-wait special-circumstance allegation to be true, the jury necessarily found that “defendant intentionally killed” Flores and “intended to kill [him] by taking [him] by surprise.” (CALCRIM No. 728, italics added.) These findings of an intentional shooting and an intentional killing directly refute defendant’s claim that he accidentally fired his gun. (See Scully, supra, 11 Cal.5th at p. 595 [holding that the jury’s “explicit findings” on enhancement allegations that the defendant “intentionally killed” a sheriff’s
Defendant argues the Supreme Court in People v. Schuller (2023) 15 Cal.5th 237 “rejected” a similar approach to the one we take here. Not so. The error in Schuller arose from the Court of Appeal’s inconsistent findings — based on an improper reweighing of evidence — “both that [the defendant] presented sufficient evidence to support an instruction on imperfect self-defense and that the error was harmless based solely on the conclusion that the evidence was so overwhelming as to compel a finding against him on that theory.” (Id. at p. 263.) By contrast, we have not “performed [our] own weighing of the evidence” (id. at p. 262) — or even considered the state of the evidence. Rather, our finding of harmlessness under Chapman is based only on the jury’s express findings, an approach the Schuller court condoned. (See Schuller, at p. 244, citing In re Lopez, supra, 14 Cal.5th at p. 591.)
C. The Trial Court Did Not Err by Allowing an Expert Witness to Answer a Hypothetical Question That Refuted Defendant’s Testimony
Defendant raises two challenges arising from the trial court’s alleged error in allowing a sheriff’s sergeant to answer a hypothetical question that refuted defendant’s version of the shooting. First, defendant contends the hypothetical question “lacked foundation because it was based on the prosecutor’s interpretation as to how he believed [defendant] was holding the gun, and not on any actual evidence.” Second, assuming there was no foundation, defendant argues the unfounded opinion testimony constituted improper opinion testimony regarding defendant’s credibility. These challenges lack merit.
As noted, defendant testified in his own defense. On direct examination, he testified that his firearm accidentally discharged as he pulled it from his waistband. On cross-examination, the prosecutor explored in greater detail the firearm’s position when it went off:
[Prosecutor]: Okay. Can you describe for us again how you were holding the gun at the time you shoot [Flores]? [¶] . . . [¶]
[Defendant]: I know I pulled my hips up, and I pulled it out. [¶] . . . [¶]
[Prosecutor]: Okay. So, you have the gun ready to use at the time the shot goes off. Where is the gun in relation to your body?
[Defendant]: It is away from my body.
[Prosecutor]: Okay. But where exactly how are you holding it at the time the shot goes off?
[Defendant]: When I held it, I held it off. [¶] . . . [¶]
[The Court]: In answering the last question, the witness raised up slightly off of his right hip, and again made the motion of moving his hands from the side of his body to the front of his body. And he had his finger, index finger pointed forward at that point. [¶] . . . [¶]
[Prosecutor]: So how is it, at the time the shot goes off, where is the gun at? How are you holding it? [¶] . . . [¶]
[Defendant]: At the time the gun went off, at that point, I don’t know. I just know the gun went off.
[Prosecutor]: So, you don’t know how you’re holding it?
[Defendant]: It was in my hand.
[Prosecutor]: You just know you’re holding it, and you’re pointing it at [Flores]?
[Defendant]: I picked it up like that, and the gun went off.
[Prosecutor]: So, is the gun pointed down when it goes off?
[Defendant]: I can’t call [sic] that. I just know I picked it up.
[Prosecutor]: So, at the time the shot goes off, can you just hold up your hand as you had the gun in your hand at that exact moment?
[Defendant]: I – so when I got it, I pull it out of my waist. It could have went off from here to there. It happened quick.
[Prosecutor]: Well, could you hold your hand in the exact spot that you had it when the gun went off?
[Defendant]: I leaned back. I know I lifted my hips up. And I pulled it out.
[Prosecutor]: Could you hold your hand as you exactly held it at that time?
[Defendant]: I am not saying that I held it. I just know I pulled it out of my waist, and it went off.
[Prosecutor]: Okay. So, it is possible you could have pointed it directly at the back of his head?
[Defense counsel]: Objection; assumes a fact not in evidence, that he is pointing it.
[The Court]: Overruled.
[Defendant]: I point it in front of me. I know that.
The defense also recalled the forensic pathologist who performed the autopsy on Flores. The pathologist described his use of trajectory rods to trace the path the bullet traveled through Flores’s head. The pathologist
The defense also recalled San Bernardino County Sheriff’s Sergeant Josh Guerry, who testified in the prosecution case-in-chief regarding his role processing the crime scene. Sergeant Guerry testified he never recovered an expended bullet or found impact strikes on structures in the area, which would have assisted in determining the bullet’s trajectory.
When questioned by the prosecutor, Sergeant Guerry testified that, based on his training and experience, the stippling around the entry wound on Flores’s head indicated the gun was fired from “approximately . . . one to two feet” away. The sergeant then answered a hypothetical question about the circumstances of the shooting:
[Prosecutor]: So, let me ask you a hypothetical. If someone is seated in the back seat of that BMW and just lifted up the gun like this and shoots it, would the stippling be that pronounced?
[Defense counsel]: Objection; speculation. Lacks foundation.
[The Court]: Overruled.
[Sgt. Guerry]: No.
2. Relevant Legal Principles
“ ‘While lay witnesses are allowed to testify only about matters within their personal knowledge (Evid. Code, § 702, subd. (a)), expert witnesses are given greater latitude. “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) An expert may express an opinion on “a subject
“ ‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.” ’ ” (People v. Vang (2011) 52 Cal.4th 1038, 1045.) But the “[u]se of hypothetical questions is subject to an important requirement. ‘Such a hypothetical question must be rooted in facts shown by the evidence.’ ” (Ibid.) Yet, “[a] hypothetical question need not encompass all of the evidence.” (Id. at p. 1046.) “ ‘The statement may assume facts within the limits of the evidence, not unfairly assembled, upon which the opinion of the expert is required, and considerable latitude must be allowed in the choice of facts as to the basis upon which to frame a hypothetical question.’ ” (Ibid.) “ ‘On the other hand, the expert’s opinion may not be based “on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors.” ’ ” (Ibid.)
3. Analysis
We conclude the trial court acted within its discretion in admitting Sergeant Guerry’s answer to the prosecutor’s hypothetical question.
As a threshold matter, the record is insufficient to support defendant’s claim of error. (Currency, supra, 142 Cal.App.4th at p. 1084.) Specifically, while the challenged hypothetical question relates to stippling
In any event, even assuming defendant’s speculation about the prosecutor’s gesture is correct, we conclude the trial court acted within its discretion in determining there was sufficient foundational evidence to allow an expert to conclude the stippling was inconsistent with defendant’s testimony about his shooting position. Defendant and other witnesses testified to the BMW occupants’ seat locations. The forensic pathologist and Sergeant Guerry testified about trajectories and stippling. Indeed, Sergeant Guerry elaborated on how stippling varies based on the distance between the firearm and the target. And defendant testified about a range of possible positions he was in when his firearm discharged — from “pull[ing] it out of [his] waist,” to “away from [his] body” to “point[ing] it in front of [him].” It was within the trial court’s discretion to conclude Sergeant Guerry reasonably could opine that the stippling around Flores’s gunshot wound was inconsistent with certain shooting positions. Thus, although Sergeant Guerry’s testimony may not have established precisely where the firearm was when it discharged, it was helpful to the jury in establishing where the firearm was not.
Because we conclude there was an adequate evidentiary foundation for the hypothetical question, we likewise reject defendant’s contingent argument that “without any foundational basis,” the question “amounted to an improper opinion on [defendant]’s credibility.” Defendant’s reliance on People v. Rouston (2024) 99 Cal.App.5th 997 to support a contrary conclusion is unavailing. In Rouston, our court held that an expert’s opinion about who fired a gun constituted improper opinion testimony because it was based primarily on an inference the expert drew from the testimony of another witness whom the jury was equally equipped to evaluate. (Id. at p. 1011; see People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82 [expert opinion regarding credibility is generally inadmissible because “the jury generally is as well equipped as the expert to discern whether a witness is being truthful”].) Here, by contrast, Sergeant Guerry offered an opinion based on his expertise regarding stippling, which defendant does not contend was within the common experience of jurors.
Defendant contends the prosecutor engaged in misconduct during closing argument by (1) “attempting to eliminate the presumption of innocence and lowering the burden of proof by telling the jury [defendant] sought to mitigate his guilt by testifying,” and (2) “by telling the jury [defendant] could have called Dude as a witness where the record showed the prosecutor knew Dude was unavailable.” The People maintain defendant forfeited these claims by failing to object on the first ground and by failing to request a curative admonition as to either ground. We agree. Anticipating this result, defendant argues in the alternative that any failure to preserve these issues for appeal was the result of ineffective assistance of counsel. We disagree.
1. Background
During the prosecutor’s rebuttal closing argument, he commented on the jury instruction that pertains to evaluating witness credibility (CALCRIM No. 226). Regarding the factor that asks whether the “witness’s testimony [was] influenced by a factor such as a personal interest in how the case is decided,” the prosecutor argued: “Of course, when the defendant testifies, he’s going to do everything he can to mitigate his guilt, which is exactly what he did. And it’s contrary to every piece of physical evidence as well as the testimony of the witnesses in this case.” Defendant did not object to this argument or request an admonition.
Later in the prosecutor’s rebuttal, he commented on defendant’s failure to call Dude as a witness to corroborate defendant’s testimony about a large SUV at the crime scene:
And while we talk about witnesses, the defendant kept talking about this large SUV that was driving by at the
And [Sky], when you evaluate her statements and in light of all the other evidence, the SUV that she was talking about had to have been the CRV.
Despite that, there is someone who was not cooperative with law enforcement who would have been in the best position to not only see what happens inside the car, but also whether there was an SUV at the time. And that is [Dude].
So, again, so no one is required to call witnesses. But if there was someone who could corroborate this, it will be the defendant’s friend. And we didn’t hear from [Dude].
Defense counsel objected: “That is improper argument. Counsel knows better. The guy is in jail, got a lawyer. What are we doing?” The court convened an unreported sidebar conference. Later, outside the jury’s presence, the court recapped what occurred during the sidebar:
I indicated when counsel approached that both counsel made improper arguments during this trial. And I ordered [defense counsel] to stop making comments in front of the jury because he had made a significant comment.
And [prosecutor], I found that your argument with regard to [Dude], based on your theory of the case and your discussion of the case, [Dude] appears to be a direct participant, coconspirator in this case. You would have known that he had a right not to testify. So whether or not the defendant called him or not, I am sure that you would not have granted him immunity.
The prosecutor responded that case law allowed him to comment on a defendant’s failure to call a coconspirator as a witness “until that person is
2. Relevant Legal Principles
“The use of deceptive or reprehensible methods to persuade the jury constitutes [prosecutorial] misconduct.” (People v. Sanchez (2016) 63 Cal.4th 411, 475; People v. Centeno (2014) 60 Cal.4th 659, 666–667 [“ ‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.’ ”].) “ ‘ “A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 894.)
“A claim of prosecutorial misconduct is not preserved unless the defendant makes a timely objection and requests an admonition.” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1241 (Hajek and Vo); see People v. Seumanu (2015) 61 Cal.4th 1293, 1340 [noting this rule “is well established”].) “ ‘The reason for this rule, of course, is that “the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the
“There are two exceptions to this [rule of] forfeiture: (1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. Forfeiture for failure to request an admonition will also not apply where the trial court immediately overruled the objection to the alleged misconduct, leaving defendant without an opportunity to request an admonition. A defendant claiming that one of these exceptions applies must find support for his or her claim in the record.” (People v. Panah (2005) 35 Cal.4th 395, 462.)
3. Defendant Forfeited His Prosecutorial Misconduct Claim
We conclude defendant forfeited both bases of his prosecutorial misconduct claim.
As to the prosecutor’s argument that defendant sought to mitigate his guilt by testifying in his own defense, defendant acknowledges that “[d]efense counsel did not object or request an admonition.” This concession is fatal to defendant’s challenge. (See Hajek and Vo, supra, 58 Cal.4th at p. 1241.)
Defendant argues it would have been futile for him to object because the trial court later recounted that both counsel had made improper arguments and that the court ordered defense counsel “to stop making comments in front of the jury.” We are not persuaded. To begin, the trial court had not yet made these comments when the prosecutor made the first challenged argument. Additionally, the trial court’s later comments do not
Turning to the prosecutor’s reference to defendant not calling Dude as a witness, although defendant timely objected, he failed to request a curative admonition. This forfeited the issue for appeal. (See Hajek and Vo, supra, 58 Cal.4th at p. 1242 [even where defense counsel timely objected, “By failing to request an admonition, . . . counsel failed to preserve th[e] issue for appellate review”].)
Again, defendant argues it would have been futile to request an admonition because, “while essentially affirming Dude was unavailable,” the trial court “did not sustain defense counsel’s objection or admonish the jury.” The record, however, does not show that the defense ever requested a formal ruling or admonition. It was the defense’s burden to do so. (See Hajek and Vo, supra, 58 Cal.4th at p. 1242; People v. Ramirez (2006) 39 Cal.4th 398, 472 [“In order to preserve an issue for review, a defendant must not only request
Alternatively, defendant asserts we can review this forfeited issue because it “involve[s] questions of constitutional law based on the undisputed facts set forth in the record.” We disagree. The trial court did not make express findings regarding Dude’s unavailability; rather, the court couched its observations as it “appear[ing]” that Dude is a coconspirator and the court’s assertion that the prosecutor would not have granted Dude immunity is speculative. In light of these uncertainties, we decline to exercise our discretion to consider a forfeited issue.
4. Defendant Has Not Shown He Received Ineffective Assistance of Counsel
Defendant contends that if we conclude he failed to preserve his prosecutorial misconduct claim for appellate review, it was the result of ineffective assistance from his trial counsel. We disagree.
“A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel’s incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel’s actions or omissions can be explored.” (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
“ ‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.]
Defendant’s ineffective assistance claim here fails because “the record does not disclose defense counsel[’s] reasons for remaining silent.” (People v. Henderson (2020) 46 Cal.App.5th 533, 549 (Henderson).) “ ‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.’ ” (People v. Harris (2008) 43 Cal.4th 1269, 1290 (Harris).) “Although trial counsel may have the duty to protect the record when their client’s trial interests are truly at stake, they have no duty to object simply to generate appellate issues. Sometimes, the best action an attorney can take regarding an available objection is not to make it.” (Riel, supra, 22 Cal.4th at p. 1202.) “ ‘Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.’ ” (Id. at p. 1185.)
Defense counsel here may have had several “plausible tactical reason[s]” to not object or request an admonition. (Henderson, supra,
“Under these circumstances, we cannot say that ‘ “ ‘there simply could be no satisfactory explanation . . .’ ” ’ for counsel’s failure to object” or request an admonition. (People v. Leonard (2014) 228 Cal.App.4th 465, 484.)
The judgment is affirmed.
RUBIN, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.