P. v. Quiming

Filed 9/12/18 P. v. Quiming CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE DEVLIN QUIMING,
Defendant and Appellant.
H043494
(Monterey County
Super. Ct. No. SS151045A)
I. INTRODUCTION
Defendant Jesse Devlin Quiming appeals after a jury convicted him of first degree
murder (Pen. Code, § 187, subd. (a))1 and attempted voluntary manslaughter (§§ 664/192,
subd. (a)) and found true allegations that defendant personally used a deadly weapon
(§ 12022, subd. (b)(1)) as to both counts and personally inflicted great bodily injury in
the commission of the attempted voluntary manslaughter (§ 12022.7, subd. (a)). The trial
court found true allegations that defendant had a strike prior (§ 1170.12, subd. (c)(1)) and
a prior serious felony conviction (§ 667, subd. (a)(1)), and it sentenced defendant to a
prison term of 56 years to life.
On appeal, defendant contends the trial court erred by (1) failing to inquire into
defendant’s mental competence prior to the sentencing hearing, (2) failing to instruct on
1 All further statutory references are to tszhe Penal Code unless otherwise
indicated.

-- 1 of 37 --

2
imperfect self-defense, (3) failing to instruct on imperfect heat of passion and refusing to
instruct on provocation, (4) denying defendant’s motion for a mistrial after a witness
mentioned defendant’s prior arrest, and (5) admitting a witness’s prior statement.
Defendant also contends the prosecutor committed misconduct by (1) misstating
the evidence, (2) commenting on defendant’s failure to testify, (3) misstating the law,
(4) referencing his own personal experience, (5) failing to admonish a witness about a
pretrial ruling, and (6) failing to follow a trial court order regarding an exhibit.
Defendant asserts that his trial counsel was ineffective for failing to object to various
instances of prosecutorial misconduct.
Finally, defendant contends the cumulative effect of the errors requires reversal.
For reasons that we will explain, we will affirm the judgment.
II. BACKGROUND
Just after midnight on June 19, 2015, defendant stabbed Scott Long and Tyler
Misamore. The stabbings took place behind the Monterey public library, in an area
where the homeless community tended to “hang out.” Long was killed, but Misamore
survived. At trial, three eyewitnesses to the incident testified: Misamore, his girlfriend
Jasmine Abercrombie, and Joseph Becerra.
A. The Stabbings
Becerra was lying down near defendant while Misamore, Long, and Abercrombie
were drinking vodka. Defendant got up and asked if he could “hit that,” meaning drink
some of the vodka. Long told defendant, “No,” and criticized defendant for failing to
introduce himself. Defendant sat down and appeared to “brood[] on” what had just
happened.
About 10 minutes later, defendant asked Abercrombie if he could use her lighter.
According to Misamore, defendant lit a cigarette and then started stabbing Long.
According to Abercrombie, defendant lit a cigarette and then lay down for about
10 minutes before getting back up and stabbing Long.

-- 2 of 37 --

3
As defendant was stabbing Long, Misamore tried to intervene: he approached
defendant from behind and put his arm around defendant’s neck. Defendant stabbed
Misamore in the side, causing them both to fall down. Misamore tried to grab the knife,
but defendant “pulled back,” cutting Misamore’s fingers. Misamore yelled to
Abercrombie, telling her that “the guy had a knife.” Defendant then got up and ran away,
leaving his sleeping bag and a backpack behind.
Becerra heard defendant get up, go ask for a lighter, and return to his sleeping bag.
Becerra then heard “some scuffling.” Becerra heard Abercrombie scream, “He’s got a
knife.” Becerra heard “more scuffling,” then saw defendant run towards the front of the
library. Becerra did not see Long, Misamore, or Abercrombie with any weapons.
Abercrombie went to the police station, which was across the street from the
library. She reported the stabbing and described the perpetrator as a male who was about
5 feet 6 inches tall and was wearing a blue sweatshirt and denim pants or jeans.
An officer responded to the library, where he discovered Long, who was in a
seated position, holding a iPhone and an iPad. Long had no pulse, so the officer began
administering CPR.
Misamore told police that he had been stabbed and “chased around” by defendant.
Misamore said that defendant had asked to drink with Misamore’s group and was
rebuffed. After lying down for about 10 minutes, defendant had “jumped up” and started
stabbing Long. Misamore had then jumped up to help Long. Misamore put defendant in
a headlock, and defendant stabbed him a few times before running off. Misamore
asserted that the stabbing was “not provoked” and that defendant was “psychotic.”
Misamore took defendant’s belongings—including a backpack—after defendant left.
Becerra told the police that defendant had made “an aggressive motion towards
Long” and that defendant had then either punched or pushed Long, causing Long to fall
backwards and hit his head on a retaining wall. At that point, Misamore jumped on
defendant’s back and pulled him away from Long.

-- 3 of 37 --

4
B. Investigation
Long had a stab wound in his chest and three stab wounds in his armpit area. The
stab wound to his chest had gone in a “downward” direction and had penetrated his heart.
Two of the armpit area stab wounds had gone in at upward angles. Long also had some
abrasions and contusions, which were consistent with defensive wounds. Long had two
“multi tools” in his pocket, but both were in a closed position. Long had a blood alcohol
level of 0.31 at the time of his death.
An officer found an empty black knife sheath next to defendant’s bedding. The
sheath looked the same as a knife sheath found in defendant’s possession on
May 25, 2015 (about one month before the stabbings), when City of Monterey Police
Officer Brian Nino contacted defendant.
Inside defendant’s backpack was a knife in a tan sheath, which was similar to a
second knife found in defendant’s possession on May 25, 2015. There was no blood on
the sheathed knife.
A few days after the stabbing, a woman brought a knife to the police department.
She had found the knife in a yard where she was doing some gardening work. The knife
had the same grip as the black sheathed knife that defendant possessed on May 25, 2015.
C. Defendant’s Statements and Arrest
On the night of June 19, 2015, Marla Tillery was driving home from a restaurant
with some friends. Defendant approached her car and asked “if he could go home” with
her. Defendant said “that he had killed two people the day before and that they deserved
to die.” Defendant “went into details” but Tillery could not hear him as she thought
about how to leave safely. She told defendant she could not give him a ride. Defendant
“politely said ‘Thank you, ma’am,’ and walked away.”
On the night of June 20, 2015, Monterey County Deputy Sheriff Daniel Lopez saw
defendant run across Highway 1 near Carmel High School, then hide in some trees and
bushes. Deputy Lopez contacted defendant and took him into custody.

-- 4 of 37 --

5
When defendant was booked, he had no injuries. He made a statement while
being booked: “So how’s prison these days?”
D. Charges, Trial, Verdicts, and Sentencing
Defendant was charged with the willful, deliberate, and premeditated murder of
Long (§ 187, subd. (a); count 1) and the attempted willful, deliberate, and premeditated
murder of Misamore (§§ 664/187, subd. (a); count 2). As to both counts, the prosecution
alleged that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)). As to
the attempted murder, the prosecution alleged that defendant personally inflicted great
bodily injury (§ 12022.7, subd. (a)). The prosecution also alleged that defendant had a
strike prior (§ 1170.12, subd. (c)(1)) and a prior serious felony conviction (§ 667,
subd. (a)(1)).
At trial, the defense rested without presenting any witnesses. The trial court
instructed the jury on murder, voluntary manslaughter based on sudden quarrel or heat of
passion, attempted murder, and attempted voluntary manslaughter. The trial court also
instructed the jury that defendant was not guilty of those crimes “if he was justified in
killing or attempting to kill someone in self-defense.”
During argument to the jury, defendant’s trial counsel argued that defendant had
acted in self-defense. He asserted that Misamore and Long “came at” defendant and that
his “self preservation” instinct had “kicked in.”
In count 1, the jury found defendant guilty of first degree murder. In count 2, the
jury found defendant not guilty of attempted murder but guilty of attempted voluntary
manslaughter. The jury found true the deadly weapon and great bodily injury allegations,
and the trial court found true the strike and prior serious felony allegations.
The trial court imposed an aggregate sentence of 56 years to life. For count 1, the
trial court imposed an indeterminate term of 50 years to life with a consecutive one-year
term for the deadly weapon enhancement and a consecutive five-year term for the prior

-- 5 of 37 --

6
serious felony enhancement. The trial court imposed a concurrent six-year term for
count 2 and its associated great bodily injury enhancement.
III. DISCUSSION
A. Competency
Defendant contends the trial court erred by failing to inquire into his mental
competence prior to the sentencing hearing. He contends that the trial court should have
suspended the proceedings under section 1368 because there was substantial evidence
that raised a doubt as to defendant’s competence. Defendant asserts that this error
violated his due process rights.
1. Proceedings Below
The probation report prepared in advance of defendant’s sentencing hearing
included statements defendant made to the probation officer in December 2015,
following his convictions. Defendant referred to “his mental health problems” and said
he had not been taking his medications at the time of the stabbings. Defendant specified
that he had been previously diagnosed with depression and bipolar disorder. He told the
probation officer he planned “to change his plea in the case to one of insanity.”
Defendant also planned to prepare a statement for the upcoming sentencing hearing.
A number of letters were submitted on defendant’s behalf prior to the
February 18, 2016 sentencing hearing.
Two letters were submitted by defendant’s aunt, Elizabeth M., a licensed
psychiatric social worker with experience treating people with mental illness. In one
letter, Elizabeth M. expressed concern that defendant had not been able to “confide in his
attorney before his trial” and tell him “all the facts in his case.” She described how
defendant claimed that voices in his head had caused him to commit the stabbing, and she
opined that defendant needed mental health treatment. In the other letter, Elizabeth M.
asserted that defendant’s mental health had “severely deteriorated during the last few
years.” She asserted that defendant believed he was “hearing the voice of God who tells

-- 6 of 37 --

7
him what to do” but that defendant had not told his lawyer about hearing the voice, “due
to his paranoia and delusional belief system.” Defendant told her “that his voices told
him to be quiet and not tell his lawyer details of the case.” Defendant had expressed
delusional thoughts to her when she visited him in jail. She asked for “an appeal” and for
defendant to “get the treatment he needs and deserves.”
Elizabeth M. included a summary of four telephone conversations she had with
defendant. On July 30, 2015, defendant told her “about hearing a voice that told him
what to do, where to sleep, etc. when homeless.” On August 28, 2015, defendant said he
had been “hearing a voice which was helpful to him and told him what to do.” On
December 2, 2015, defendant told her about hearing the voice of God and “being led by
the spirit.” On December 16, 2015, defendant told her “about a female voice and a male
voice who are always saying negative things about him like an ongoing conversation.”
Defendant said he had been seen by a psychiatrist and had started taking Zyprexa.
Defendant’s sister wrote a letter in which she indicated she had witnessed
defendant’s mental illness. She specified that defendant was schizophrenic and that he
suffered from delusions, hallucinations, and paranoia. She noted that defendant had
suffered “serious head trauma” and that he had begun to change about 10 years earlier.
She described how defendant had complained of hearing voices at some point when she
met him in Sacramento.
A psychiatric nurse who was acquainted with defendant submitted a letter
describing how she had never noticed any “violent tendencies” in defendant. When she
saw defendant, “his behavior was in control and pleasant.” Nothing had alerted her
“mental health nursing intuition.”
Another acquaintance of defendant wrote a letter stating that in “all the years” she
had known defendant, she “never saw any indication of a violent nature.”
Defendant’s mother, Melissa Q., submitted a letter “to support a motion for an
insanity appeal.” She stated that defendant had suffered “two serious head injuries from

-- 7 of 37 --

8
falls” when he was a teenager and that his personality had changed after that. In 2014,
she discovered that defendant was hearing voices. She believed that in the weeks leading
up to the stabbing, defendant had been “hearing auditory command hallucinations” and
had a “psychotic episode.”
A letter from a Florida psychiatrist, Howard Goldman, was also provided. The
psychiatrist indicated that the letter was submitted to support an appeal for defendant on
the basis of insanity. Defendant had seen the psychiatrist in 2004 and 2005. He was
“suffering from paranoia and psychotic features at that time” and was treated with
medication. According to defendant’s mother, defendant had remained silent during trial
because he heard voices that told him to do so. The psychiatrist felt it was likely that
defendant was “extremely mentally ill at the time of his crime.”
2. Legal Standards
Section 1368 provides: “(a) If, during the pendency of an action and prior to
judgment . . . a doubt arises in the mind of the judge as to the mental competence of the
defendant, he or she shall state that doubt in the record and inquire of the attorney for the
defendant whether, in the opinion of the attorney, the defendant is mentally
competent. . . . At the request of the defendant or his or her counsel or upon its own
motion, the court shall recess the proceedings for as long as may be reasonably necessary
to permit counsel to confer with the defendant and to form an opinion as to the mental
competence of the defendant at that point in time. [¶] (b) If counsel informs the court
that he or she believes the defendant is or may be mentally incompetent, the court shall
order that the question of the defendant’s mental competence is to be determined in a
hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court
that he or she believes the defendant is mentally competent, the court may nevertheless
order a hearing. Any hearing shall be held in the superior court. [¶] (c) Except as
provided in Section 1368.1, when an order for a hearing into the present mental
competence of the defendant has been issued, all proceedings in the criminal prosecution

-- 8 of 37 --

9
shall be suspended until the question of the present mental competence of the defendant
has been determined. . . .”
“A criminal trial of an incompetent person violates his or her federal due process
rights. [Citation.] The state Constitution and section 1367 similarly preclude a mentally
incompetent defendant’s criminal trial or sentencing. [Citations.] A defendant is
incompetent to stand trial if the defendant lacks ‘sufficient present ability to consult with
his [or her] lawyer with a reasonable degree of rational understanding . . . [or] a rational
as well as factual understanding of the proceedings against him [or her].’ [Citations.]”
(People v. Mickel (2016) 2 Cal.5th 181, 194-195 (Mickel).)
To raise a doubt about a defendant’s competence, there must be “more than ‘mere
bizarre actions’ or statements, or even expert testimony that a defendant is psychopathic,
homicidal, or a danger to him- or herself and others. [Citations.]” (Mickel, supra, 2
Cal.5th at p. 202.) “[E]ven a history of serious mental illness does not necessarily
constitute substantial evidence of incompetence that would require a court to declare a
doubt concerning a defendant’s competence and to conduct a hearing on that issue.
[Citation.]” (People v. Blair (2005) 36 Cal.4th 686, 714 (Blair), overruled on a different
point in People v. Black (2014) 58 Cal.4th 912, 919.)
A defendant’s trial demeanor is “relevant to, but not dispositive of, the question
whether the trial court should have suspended proceedings under section 1368.
[Citation.]” (Mickel, supra, 2 Cal.5th at p. 202.) “ ‘Even when a defendant is competent
at the commencement of his [or her] trial, a trial court must always be alert to
circumstances suggesting a change that would render the accused unable to meet the
standards of competence to stand trial.’ [Citation.]” (People v. Lightsey (2012) 54
Cal.4th 668, 690-691 (Lightsey).)
“[A] trial court is obligated to conduct a full competency hearing if substantial
evidence raises a reasonable doubt that a criminal defendant may be incompetent. . . .

-- 9 of 37 --

10
The failure to conduct a hearing despite the presence of such substantial evidence is
reversible error.” (Lightsey, supra, 54 Cal.4th at p. 691.)
3. Analysis
Defendant contends there was more than “just substantial” evidence that he was
incompetent, referencing the material presented to the trial court prior to the sentencing
hearing.
Letters from the defendant’s family and friends were not sufficient to raise a doubt
as to the competence of the defendant in Mickel. In that case, prior to the sentencing
hearing, the defendant’s mother and father submitted letters in which they expressed their
beliefs that the defendant had a mental illness and referred to psychiatrists’ reports.
(Mickel, supra, 2 Cal.5th at p. 201.) Other letters from the defendant’s friends and family
described defendant as suffering from a mental illness and referenced the defendant’s
prior treatment by mental health professionals. (Ibid.) The California Supreme Court
found the trial court did not abuse its discretion by failing to declare a doubt as to the
defendant’s competence. First, the record showed that the defendant “understood the
nature and purpose of the proceedings and was capable of assisting in his own defense.”
(Id. at p. 203.) The defendant had represented himself during the trial and there was no
evidence that he had failed to cooperate with his advisory counsel. Second, although the
letters by the defendant’s family and friends showed concern about the defendant’s
mental state, they “convey[ed] little about defendant’s competence to stand trial,” since
they did not address his “ability to understand the proceedings or assist in his defense.”
(Ibid.)
Defendant contends Mickel is distinguishable because the letters here referenced
defendant’s thinking “during the court proceedings themselves” and defendant’s
interactions with his attorney.
Having reviewed the probation report, the letters from defendant’s friends and
family, and the trial record, we find no substantial evidence raising a doubt as to

-- 10 of 37 --

11
defendant’s competence prior to the sentencing hearing. Although there was evidence
that defendant had a long history of bizarre behavior and mental illness, nothing in the
letters indicated that defendant lacked an “understanding of the criminal proceedings
against him” or lacked “the ability to consult with counsel or otherwise assist” in his
defense. (See Mickel, supra, 2 Cal.5th at p. 202; see also People v. Halvorsen (2007) 42
Cal.4th 379, 403.) Rather, the letters mainly showed “generalized concerns” about
defendant’s mental state prior to and at the time of the stabbings. (Mickel, supra, at
p. 203.)
Defendant focuses on the letter from his aunt, which described defendant’s
reluctance to talk to his attorney about the voices in his head. However, defendant’s
failure to tell his attorney about the voices in his head did not show that he lacked “the
ability to consult with counsel” about legal strategy (Mickel, supra, 2 Cal.5th at p. 202),
particularly since nothing in the letter indicated that defendant was hearing such voices or
failed to communicate with his attorney during the actual trial (cf. People v.
Pennington (1967) 66 Cal.2d 508, 516). Likewise, substantial evidence of incompetence
was not provided by the letter from the Florida psychiatrist, which related defendant’s
mother’s claim that the voices in defendant’s head had told him to remain silent rather
than present a defense at trial. The Supreme Court has “rejected the notion that a
defendant’s choice not to present a defense, even at the penalty phase, amounts to
substantial evidence of incompetence.” (Blair, supra, 36 Cal.4th at p. 718.)
Defendant’s statement to the probation officer about his plan to plead not guilty by
reason of insanity also did not provide substantial evidence of his incompetence. The
statement arguably shows defendant did not understand the difference between an appeal
and a change of plea. However, that single statement was insufficient to raise a doubt as
to defendant’s ability to understand the proceedings, particularly in light of defendant’s
other statements to the probation officer, including his statement about how he planned to
prepare a statement for the upcoming sentencing hearing.

-- 11 of 37 --

12
Finally, nothing in the trial transcripts indicates that during trial, defendant
exhibited any behavior or made any statements indicating that he lacked “ ‘sufficient
present ability to consult with his [or her] lawyer with a reasonable degree of rational
understanding . . . [or] a rational as well as factual understanding of the proceedings
against him [or her].’ [Citations.]” (Mickel, supra, 2 Cal.5th at pp. 194-195; see also id.
at p. 202.)
On this record, we find no substantial evidence raising a reasonable doubt as to
defendant’s competence between the jury’s verdicts and the sentencing hearing. Thus,
the trial court did not err by failing to declare a doubt as to defendant’s competence
pursuant to section 1368. (Lightsey, supra, 54 Cal.4th at p. 691.)
B. Imperfect Self-Defense
Defendant contends the trial court erred by failing to instruct on imperfect self-
defense. He asserts that the trial court had a sua sponte duty to give an imperfect self-
defense instruction because there was substantial evidence that he actually but
unreasonably believed he was in imminent danger of death or great bodily injury. He
contends the error violated his due process rights under the state and federal constitutions
and his Sixth Amendment right to a jury trial.
1. Legal Principles
A killing committed when the perpetrator “ ‘holds an honest but unreasonable
belief in the necessity to defend against imminent peril to life or great bodily injury’ ”
constitutes manslaughter. (People v. Elmore (2014) 59 Cal.4th 121, 134 (Elmore).)
“Whenever there is substantial evidence that the defendant killed in unreasonable self-
defense, the trial court must instruct on this theory of manslaughter. [Citation.]” (Ibid.)
“Substantial evidence is evidence from which a jury could conclude beyond a reasonable
doubt that the lesser offense was committed. [Citations.] Speculative, minimal, or
insubstantial evidence is insufficient to require an instruction on a lesser included
offense. [Citations.]” (People v. Simon (2016) 1 Cal.5th 98, 132 (Simon).)

-- 12 of 37 --

13
“We review de novo a trial court’s decision not to give an imperfect self-defense
instruction. [Citations.]” (Simon, supra, 1 Cal.5th at p. 133.)
2. Analysis
Defendant contends that substantial evidence of his belief in the need to defend
himself came from the following evidence: (1) the fact that it was dark and the area
behind the library was small; (2) Becerra’s testimony about hearing some “scuffling” and
the fact that there were three individuals in Long’s group; (3) Long’s high blood alcohol
content and bruises; (4) defendant’s statement that the victims “deserved to die.”
Defendant contends that in light of the evidence of his mental illness, a reasonable jury
could have found that he unreasonably believed he needed to defend himself. He also
asserts that because Long was found holding an iPad and an iPhone, a jury could
reasonably have found that defendant believed Long had a weapon.
After a careful review of the record, we find no substantial evidence supporting an
imperfect self-defense instruction in this case. No evidence indicates that anyone other
than defendant was the aggressor in the incident, and there was no evidence that
defendant perceived that either victim “posed a risk of imminent peril.” (See Simon,
supra, 1 Cal.5th at p. 133.)
Becerra’s testimony about hearing some “scuffling” lasting for “[a] couple
minutes” did not provide a basis for finding that defendant honestly believed he was in
imminent physical danger. Defendant asserts that the jury could have found that
defendant was engaged in an extended fight with Long’s group that led him to believe he
needed to defend himself by stabbing Long. But contrary to defendant’s assertion, there
was no evidence that the “scuffle” was “three against one.” Becerra initially testified that
after hearing the “scuffle,” he looked in that direction “for a brief moment” and saw
defendant running away. On cross-examination, Becerra acknowledged seeing “four
people standing upright” after hearing the scuffle. When asked, “And the four of them
are engaged in a fight?” Becerra responded, “I believe so. Like I said, it was a brief blur.

-- 13 of 37 --

14
It was a brief moment.” Becerra also responded, “Yes” when asked if, after hearing the
scuffle for a few minutes, he looked up to “see four people standing up fighting.” It
would be speculative to find that any of this testimony showed that defendant was
involved in an “extended scuffle” with Long’s group prior to the stabbing, that defendant
was not the initial aggressor, or that defendant held “ ‘an honest but unreasonable belief
in the necessity to defend against imminent peril to life or great bodily injury’ ” at the
time he stabbed Long. (Elmore, supra, 59 Cal.4th at p. 134.)
The evidence of Long’s high blood alcohol content and bruises also did not
provide a basis for finding that Long took any aggressive action towards defendant prior
to the stabbing. It would be entirely speculative to conclude that Long was aggressive
just because he was very drunk. Moreover, there was expert testimony that Long’s
bruises were consistent with defensive wounds, and there was no evidence that defendant
had any injuries.
Defendant’s statement that the victims “deserved to die” also does not show “that
he had acted out of fear” rather than out of mere anger at Long’s refusal to share his
alcohol. (See Simon, supra, 1 Cal.5th at p. 134.)
Finally, on this record it would be speculative to conclude that defendant’s mental
illness or Long’s possession of two electronic devices “contributed to the mistaken
perception of a threat,” since defendant presented no such evidence. (Elmore, supra, 59
Cal.4th at p. 146.)
Since there was no substantial evidence that defendant killed Long in the “ ‘honest
but unreasonable belief in the necessity to defend against imminent peril to life or great
bodily injury,’ ” the trial court did not err by failing to instruct on imperfect self-defense.
(See Elmore, supra, 59 Cal.4th at p. 134.)
C. Heat of Passion/Provocation
As noted above, the trial court instructed the jury on voluntary manslaughter based
on sudden quarrel/heat of passion. (See CALCRIM No. 570.) Defendant contends the

-- 14 of 37 --

15
trial court erred by failing to further instruct the jury on “imperfect heat of passion” and
by refusing to instruct on provocation pursuant to CALCRIM No. 522. He contends the
errors violated his due process rights under the state and federal constitutions as well as
his Sixth Amendment right to a jury trial.
1. Proceedings Below
Defendant’s written jury instruction list included a request for CALCRIM
No. 522. That instruction would have told the jury that provocation can reduce a murder
from first degree to second degree and may reduce a murder to manslaughter.2 The trial
court did not give CALCRIM No. 522, however.
The trial court instructed the jury on murder pursuant to CALCRIM Nos. 520 and
521, which explained that if the jury found that defendant committed murder, it was
“murder of the second degree” unless the prosecution proved beyond a reasonable doubt
that defendant “acted willfully, deliberately, and with premeditation.” The instructions
further explained that “[t]he defendant acted deliberately if he carefully weighed the
considerations for and against his choice,” that he “acted with premeditation if he decided
to kill before completing the acts that caused death,” and that “[a] decision to kill made
rashly, impulsively or without careful consideration is not deliberate and premeditated.”
The trial court also instructed the jury, pursuant to CALCRIM No. 570, that “if the
defendant killed someone because of a sudden quarrel or in the heat of passion,” the
murder would be “reduced to voluntary manslaughter.” That instruction told the jury that
“[t]he defendant killed someone because of a sudden quarrel or in the heat of passion if:
One, the defendant was provoked. Two, as a result of the provocation the defendant
2 The pattern instruction provides: “Provocation may reduce a murder from first
degree to second degree [and may reduce a murder to manslaughter]. The weight and
significance of the provocation, if any, are for you to decide. [¶] If you conclude that the
defendant committed murder but was provoked, consider the provocation in deciding
whether the crime was first or second degree murder. [Also, consider the provocation in
deciding whether the defendant committed murder or manslaughter.] [¶] [Provocation
does not apply to a prosecution under a theory of felony murder.]” (CALCRIM No. 522.)

-- 15 of 37 --

16
acted rashly and under the influence of intense emotion that obscured his reasoning or
judgment. And, three, the provocation would have caused a person of average
disposition to act rashly and without due deliberation; that is, from passion rather than
from judgment.” CALCRIM No. 570 also told the jury that “slight or remote provocation
is not sufficient” and that “[t]he defendant is not allowed to set up his own standard of
conduct.” The jury was told that “In deciding whether the provocation was sufficient,
consider whether a person of average disposition, in the same situation and knowing the
same facts would have reacted from passion rather than from judgment.”
2. Failure to Instruct on “Imperfect Heat of Passion”
“To reduce a murder to second degree murder, premeditation and deliberation may
be negated by heat of passion arising from provocation. [Citation.] If the provocation
would not cause an average person to experience deadly passion but it precludes the
defendant from subjectively deliberating or premeditating, the crime is second degree
murder. [Citation.]” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332; see also
People v. Carasi (2008) 44 Cal.4th 1263, 1306 [provocation that is insufficient to reduce
the offense from murder to manslaughter may raise a reasonable doubt that the defendant
deliberated and premeditated].)
The Attorney General contends such an instruction would have been “largely
duplicative” of the instructions given, which told the jury that if the prosecution did not
prove defendant acted deliberately and with premeditation, the murder would be second
degree.
Defendant cites no case holding that a trial court has a sua sponte duty to instruct
the jury on what he calls “imperfect heat of passion.”3 And our Supreme Court has held
3 On appeal, defendant proposes the following instruction: “If you conclude that
provocation may have played a part in the unlawful killing, but you conclude beyond a
reasonable doubt that the provocation would not have led a reasonable person to act
rashly, you should consider whether the provocation actually, but unreasonably, caused
the defendant to act without premeditation and deliberation. [¶] If you find that the

-- 16 of 37 --

17
that an instruction on this principle “is a ‘pinpoint instruction’ relating particular evidence
to an element of the offense, and therefore need not be given on the court’s own motion.”
(People v. Rogers (2006) 39 Cal.4th 826, 878 (Rogers).)
Defendant contends an instruction on “imperfect heat of passion” would not be a
pinpoint instruction because the absence of heat of passion is an element of murder.
However, the jury was instructed that the People had the burden of proving that
defendant did not kill in the heat of passion. As defendant concedes, “there has not yet
been formal recognition of the doctrine of imperfect heat of passion.” Thus, we follow
our Supreme Court in holding that an instruction on that doctrine is a pinpoint instruction
that need not be given sua sponte. (See Rogers, supra, 39 Cal.4th at p. 878.)
Since defendant’s trial counsel did not request a pinpoint instruction on “imperfect
heat of passion,” the trial court did not err by failing to give such an instruction sua
sponte.
3. Refusal of Provocation Instruction
As noted above, defendant’s written list of requested instructions included
CALCRIM No. 522, but the trial court did not give that instruction. The record does not
contain any discussion about why the trial court declined to give the instruction. To the
extent his failure to further pursue the instruction forfeited the issue on appeal, defendant
contends he received ineffective assistance of counsel. We will assume that defendant’s
written request adequately preserved the issue for appeal and proceed to consider the
merits of his claim.
“A trial court must give a requested instruction only if it is supported by
substantial evidence, that is, evidence sufficient to deserve jury consideration.
prosecution has not proved beyond a reasonable doubt that the defendant did not kill as a
result of provocation that actually but unreasonably caused him/her to act rashly, and
without premeditation and deliberation, you must find the defendant not guilty of first
degree murder.”

-- 17 of 37 --

18
[Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) The trial court should
instruct the jury that provocation is relevant to the degree of murder “if there is evidence
from which the jury could find that the defendant’s decision to kill was a direct and
immediate response to the provocation such that the defendant acted without
premeditation and deliberation. [Citations.]” (People v. Fenenbock (1996) 46
Cal.App.4th 1688, 1705 (Fenenbock).)
The record in this case contains no substantial evidence to support a finding that
defendant’s decision to kill Long “was a direct and immediate response” to provocation.
(See Fenenbock, supra, 46 Cal.App.4th at p. 1705.) Misamore testified that after being
rebuffed by Long, defendant sat down and appeared to “brood[] on” what had just
happened. According to both Misamore and Abercrombie, defendant did not start
stabbing Long until about 10 minutes later. Becerra likewise heard defendant return to
his sleeping bag for some time after interacting with Long’s group.
Contrary to defendant’s claim, the prosecutor did not concede that defendant was
provoked, such that a provocation instruction should have been given. The prosecutor
discussed the fact that “adequate provocation” would reduce a murder to manslaughter.
The prosecutor noted that defendant was apparently “provoked” by Long rebuffing his
request for a drink, but the prosecutor immediately asserted that it was not “adequate
provocation.” This was not a concession that defendant’s decision to kill Long “was a
direct and immediate response” to provocation. (See Fenenbock, supra, 46 Cal.App.4th
at p. 1705.)
In sum, the trial court did not err by failing to instruct the jury on provocation
pursuant to CALCRIM No. 522.
D. Prosecutorial Misconduct During Closing Argument
Defendant contends the prosecutor committed misconduct during closing
argument by (1) misstating the evidence, (2) commenting on defendant’s failure to testify
and shifting the burden of proof, (3) misstating the law, and (4) referencing his own

-- 18 of 37 --

19
personal experience. Defendant acknowledges that his trial counsel did not object to
these instances of claimed error, and thus he contends he received ineffective assistance
of counsel.
1. Legal Standards
The general rules applying to claims of prosecutorial misconduct are as follows:
“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must
‘ “so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due
process.” ’ [Citations.] ‘ “But 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.” ’ ” [Citations.]’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926,
1000 (Cunningham).) When the claim of prosecutorial misconduct “is based upon
‘comments made by the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the complained-of remarks
in an objectionable fashion. [Citation.]’ [Citations.]” (Id. at p. 1001.)
“A defendant generally ‘ “ ‘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.]’ ” [Citation.]’ [Citation.] A defendant’s failure to object and to
request an admonition is excused only when ‘an objection would have been futile or an
admonition ineffective.’ [Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 679.)
“ ‘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.] Unless a defendant establishes the contrary, we shall presume that
“counsel’s performance fell within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of sound trial strategy.”

-- 19 of 37 --

20
[Citation.] If the record “sheds no light on why counsel acted or failed to act in the
manner challenged,” an appellate claim of ineffective assistance of counsel must be
rejected “unless counsel was asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must
show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” [Citation.]’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960, 966
(Lopez); see Strickland v. Washington (1984) 466 U.S. 668, 690, 694.)
2. Misstating the Evidence
Defendant contends the prosecutor committed misconduct by telling the jury that
“all three” eyewitnesses (Misamore, Abercrombie, and Becerra) had testified
“identically” that defendant “was the aggressor.” Defendant asserts that the testimony of
the three eyewitnesses was not identical, in that only Becerra testified that there had been
a “scuffle” prior to the stabbing and that the witnesses differed on details such as whether
defendant sat down or lay down after Long refused to give him any alcohol. Defendant
also contends the prosecutor misstated the evidence by arguing that Becerra told police
that defendant had been “the initial aggressor.” Defendant acknowledges that his trial
counsel did not object to these statements, and thus he contends he received ineffective
assistance of counsel.
It is misconduct for the prosecutor to misstate the facts, but “[p]rosecutors have
wide latitude to discuss and draw inferences from the evidence at trial.” (People v.
Dennis (1998) 17 Cal.4th 468, 522 (Dennis).) It is the jury’s job to decide “[w]hether the
inferences the prosecutor draws are reasonable,” and on appeal “we must view the
statements in the context of the argument as a whole. [Citation.]” (Ibid.) “Ultimately,
the test for misconduct is whether the prosecutor has employed deceptive or
reprehensible methods to persuade either the court or the jury.” (Ibid.)

-- 20 of 37 --

21
Although there were minor variations, the testimony of the three eyewitnesses was
very similar, particularly with respect to the fact that defendant had initiated the violence.
Misamore testified that defendant started stabbing Long after being told he could not
drink with the group, sitting down, and lighting a cigarette. Abercrombie testified that
defendant lit a cigarette, lay down for a while, and then got up and started stabbing Long.
Becerra testified that defendant asked for a lighter and returned to his sleeping bag, after
which there was “some scuffling” involving defendant, who was standing up again.
Although Becerra did not explicitly testify that defendant was the aggressor, his
testimony permitted that inference. Because the prosecutor did not “substantially
misstate the facts or go beyond the record” (Dennis, supra, 17 Cal.4th at p. 522), he did
not commit misconduct by arguing that the three eyewitnesses testified “identically” that
defendant “was the aggressor,” and defendant’s trial counsel was not ineffective for
failing to object to those remarks.
Similarly, the prosecutor did not commit misconduct by arguing that Becerra told
police that defendant had been “the initial aggressor.” Although at trial Becerra denied
seeing the incident begin, Becerra told the police that defendant had made “an aggressive
motion towards Long” and that defendant had either punched or pushed Long. The
prosecutor’s assertion was a reasonable inference from this evidence (see Dennis, supra,
17 Cal.4th at p. 522), and thus defendant’s trial counsel was not ineffective for failing to
object to the challenged remark.
3. Griffin Error/Burden-Shifting
Defendant contends the prosecutor committed Griffin error (Griffin v.
California (1965) 380 U.S. 609) during closing argument by claiming there was
“[u]nrebutted testimony” and “uncontroverted facts.” He also contends that the
prosecutor’s improper comments improperly shifted the burden of proof to the defense.
Acknowledging that his trial counsel failed to object to the comment, defendant contends
he received ineffective assistance of counsel.

-- 21 of 37 --

22
The prosecutor’s challenged remark about “uncontroverted facts” came during his
discussion of the facts that he considered to be “significant.” Those facts included:
(1) defendant was not part of Misamore and Long’s group; (2) defendant asked for a
drink of Long’s vodka but was refused; (3) some time passed after that refusal;
(4) defendant stabbed Long with a knife; (5) the stabbing caused Long to go backwards;
(6) defendant was the aggressor; (7) defendant stabbed Long three times after the initial
stabbing; (8) the stab to Long’s heart caused his death; (9) Misamore pulled defendant off
Long; (10) Long had wounds that were consistent with defending himself; (11) there
were no “weapons ready for use” found at the scene; (12) defendant fled from the scene
and discarded the knife. The prosecutor told the jury, “These are uncontroverted facts
here.” He also described the evidence about defendant asking for a drink of vodka as
“[u]nrebutted testimony.”
In Griffin, the United States Supreme Court held that the prosecution may not
comment upon a defendant’s failure to testify in his or her own behalf. The holding of
Griffin “does not, however, extend to bar prosecution comments based upon the state of
the evidence or upon the failure of the defense to introduce material evidence or to call
anticipated witnesses. [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1339
(Bradford).) Thus, “a prosecutor may commit Griffin error if he or she argues to the jury
that certain testimony or evidence is uncontradicted, if such contradiction or denial could
be provided only by the defendant, who therefore would be required to take the witness
stand. [Citations.]” (Ibid.)
In Bradford, the prosecutor argued that the victims “had been killed for pleasure”
and told the jury, “ ‘[T]here is no evidence to the contrary.’ ” (Bradford, supra, 15
Cal.4th at p. 1338.) Although the defendant was “the sole remaining witness,” the
Bradford court found no Griffin error, explaining, “The prosecutor did not allude to the
lack of refutation or denial by . . . defendant, but rather to the lack of evidence, which
might have been presented in the form of physical evidence or testimony other than that

-- 22 of 37 --

23
of defendant.” (Id. at p. 1340.) The Bradford court also rejected the notion that the
prosecutor’s comments had impermissibly shifted the burden of proof to the defendant.
The court noted that the prosecutor had reminded the jury of the burden of proof and
found, “A distinction clearly exists between the permissible comment that a defendant
has not produced any evidence, and on the other hand an improper statement that a
defendant has a duty or burden to produce evidence, or a duty or burden to prove his or
her innocence.” (Ibid.)
No Griffin error was found in People v. Foster (1988) 201 Cal.App.3d 20 (Foster),
where the prosecutor told the jury that documents submitted to prove a prior conviction
allegation “ ‘remain[ed] uncontroverted,’ ” in that “[n]o one” had testified or introduced
any evidence to controvert them. (Id. at p. 26.) The appellate court found no
prosecutorial misconduct, explaining that Griffin “does not prohibit a prosecutor from
commenting on the failure of the defense to introduce material evidence. [Citation.]”
(Foster, supra, at p. 26.)
In the present case, the prosecutor’s comments did not run afoul of Griffin nor
improperly shift the burden of proof to the defense. The prosecutor’s “[u]nrebutted
testimony” and “uncontroverted facts” comments were “based upon the state of the
evidence” and did not implicitly reference defendant’s failure to testify. (See Bradford,
supra, 15 Cal.4th at p. 1339.) Even assuming defendant was “the sole remaining
witness” who had been present during the event (id. at p. 1340), the prosecutor’s
comments would not reasonably have been understood to be comments about defendant’s
failure to testify. A reasonable juror would have understood the prosecutor to be
discussing the strength of his case and the lack of any evidence to support the defense
claim of self-defense.
Because the prosecutor’s challenged comments were not improper, defendant’s
trial counsel was not ineffective for failing to object.

-- 23 of 37 --

24
4. Misstatement of Law
Defendant contends his trial counsel was ineffective for failing to object when,
during argument to the jury, the prosecutor misstated the law regarding premeditation and
deliberation by equating those elements to “a conscious decision” about driving through a
yellow light.
The prosecutor told the jury that premeditation related to “the length of time” and
that it did not need to be “a long period of time.” The prosecutor asserted, “It could be
done very shortly” and then provided an example in which a person is “approaching an
intersection.” The prosecutor continued: “You drive up to the intersection. And all the
sudden, about 150 feet from the intersection, the light turns yellow. Okay. Everybody
has been in that situation. So the decision has to be made, do I go through or do I stop.
And I would submit that just about every person who decides to go through that yellow
light makes . . . a conscious decision. And what do they look for when they go through
that yellow light? Cars or cops. And . . . when you do that, you’ve made that decision.
You’ve decided. You’ve deliberated. You’ve thought and then you acted. And that’s
how long—that’s the length of time that it can take to get that deliberation and
premeditation.”
Defendant acknowledges that a similar analogy was not found to be misconduct in
People v. Avila (2009) 46 Cal.4th 680 (Avila). In that case, “the prosecutor used the
example of assessing one’s distance from a traffic light, and the location of surrounding
vehicles, when it appears the light will soon turn yellow and then red, and then
determining based on this information whether to proceed through the intersection when
the light does turn yellow, as an example of a ‘quick judgment’ that is nonetheless ‘cold’
and ‘calculated.’ ” (Id. at p. 715.) After making that analogy, the prosecutor
“immediately said, ‘Deciding to and moving forward with the decision to kill is similar,
but I’m not going to say in any way it’s the same. There’s great dire consequences that
have a difference here.’ ” (Ibid.) The Avila court found no prosecutorial misconduct

-- 24 of 37 --

25
since the prosecutor was not equating “ ‘the “cold, calculated” judgment of murder” ’ ”
with “ ‘deciding whether to stop at a yellow light or proceed through the intersection.’ ”
(Ibid.)
Defendant contends Avila is distinguishable because in this case, the prosecutor
“did not list numerous separate factors considered by the hypothetical driver” and did not
argue that a driver would use that information in making a decision. The record does not
support that claim. The prosecutor here, like the prosecutor in Avila, referenced three
factors that a driver would assess in making the decision to enter an intersection after
seeing a yellow light: the distance from the traffic light, the presence of other cars, and
the presence of “cops.”
Defendant also contends Avila is distinguishable because here the prosecutor did
not “add the qualifier” of telling the jury that the decision to kill and the decision to enter
an intersection were not actually the same. We read Avila differently. The “qualifier”
added in Avila concerned the different consequences of a decision to kill versus a
decision to enter an intersection. The Avila prosecutor did not qualify the analogy with
respect to the mental state of a person deciding whether to kill and a person deciding
whether to enter an intersection when there is a yellow light. Thus, in this case, as
in Avila, where the prosecutor used the yellow light analogy as an example of a decision-
making process, there was no prosecutorial misconduct. And because the prosecutor’s
remarks were not improper, defendant’s trial counsel was not ineffective for failing to
object.
5. “Open and Shut Case” Comment
Defendant contends the prosecutor committed misconduct and his trial counsel
was ineffective for failing to object when, during argument to the jury, the prosecutor
twice referred to the case as “an open and shut case.”
After the prosecutor discussed the facts of the case, he told the jury, “At some
point you might be asking what are we doing here. What’s the deal? It seems like a

-- 25 of 37 --

26
pretty—at the risk of sounding a little bit presumptuous here, it seems like a pretty open
and shut case. Why are we having a trial on this.” The prosecutor then explained that
“[e]verybody is entitled to a trial” and that the prosecution had to prove its case. The
prosecutor noted that his case would have been difficult if witnesses had not showed up
for trial but that the prosecution would have attempted to proceed based on “physical
evidence only.” He continued: “But they did show up. So that buttresses our case quite
a bit. And that’s why it might appear to you to be somewhat of an open and shut case.
Again, if I’m presumptuous on that, I apologize.”
Defendant contends that by referring to the case as “open and shut,” the prosecutor
engaged in improper vouching. “[I]t is misconduct for prosecutors to vouch for the
strength of their cases by invoking their personal prestige, reputation, or depth of
experience, or the prestige or reputation of their office, in support of it. [Citations.]
Specifically, a prosecutor’s reference to his or her own experience, comparing a
defendant’s case negatively to others the prosecutor knows about or has tried, is
improper. [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 206-207.)
In this case, the comments at issue did not constitute misconduct. The prosecutor
did not imply that this case was “open and shut” as compared to other criminal cases that
he had tried. In context, his comments reasonably would have been understood by the
jury simply as “an invitation to draw the desired inference”: that the prosecution had
presented a strong case showing defendant’s guilt. (Cf. People v. Johnson (1992) 3
Cal.4th 1183, 1226.) Because the prosecutor’s remarks were not improper, defendant’s
trial counsel was not ineffective for failing to object.4
4 Defendant requests this court take judicial notice of two prior unpublished
opinions in which the same prosecutor was found to have engaged in prosecutorial
misconduct. Having found no prosecutorial misconduct in this case, we deny the request
for judicial notice. (Cf. People v. Hill (1998) 17 Cal.4th 800, 847 & fn. 9 (Hill).)

-- 26 of 37 --

27
E. Evidence of Defendant’s Prior Arrest
Defendant contends the trial court erred by denying his motion for a mistrial after
Officer Nino mentioned that defendant had been arrested on May 25, 2015. Defendant
also contends the prosecutor committed misconduct by failing to admonish Officer Nino
prior to his testimony and by failing to edit a photograph of defendant being arrested.
Defendant further contends his trial counsel was ineffective for failing to object to the
photograph.
1. In Limine Motion and Ruling
The prosecution filed a motion in limine seeking to introduce evidence of a police
contact defendant had on May 25, 2015, less than one month before the stabbings. The
prosecution sought to introduce testimony from “Monterey Police Officer Reed” as well
as a video and photographs that showed defendant wearing a blue hooded sweatshirt and
carrying a backpack, which contained two knives, one in a black sheath and one in a
brown sheath. Attached to the prosecution’s motion were a number of photographs,
including Exhibit No. 9, a photograph of defendant with officers on either side of him.
Defendant was wearing a blue hooded sweatshirt, and his hands were behind his back,
apparently in handcuffs. Other photographs showed the backpack and the knives.
At the hearing on motions in limine, the prosecutor confirmed that Exhibit No. 9
showed defendant being escorted by officers following his arrest for a battery. The
prosecutor offered to “excise out any reference to” defendant’s arrest. He also offered to
redact Exhibit No. 9 “to make it look like defendant is not being arrested.” Defendant’s
trial counsel objected to the evidence and specifically characterized Exhibit No. 9 as
“extremely prejudicial.”
The trial court found that the evidence of defendant police contact on
May 25, 2015 was relevant to show that defendant “had access to two knives and
possessed knives.” The trial court ordered that Exhibit No. 9 be “edited so that
[defendant] is not being shown in custody.”

-- 27 of 37 --

28
2. Officer Nino’s Testimony and Mistrial Motion
When Officer Nino testified, the prosecutor asked him about his “contact” with
defendant on May 25, 2015. Officer Nino identified defendant in court and in Exhibit
No. 9A, a cropped version of Exhibit No. 9 that showed defendant but not the two police
officers. Officer Nino also identified the backpack that defendant had with him on May
25, 2015, describing it as “the backpack that [defendant] had on him at the time of his
arrest.”
The trial court held an unreported bench conference following Officer Nino’s
reference to defendant’s arrest. The prosecutor subsequently asked Officer Nino to
confirm that defendant “was not arrested that day for anything,” and Officer Nino
indicated that was correct: “No fresh charges, no.”
Defendant’s trial counsel later moved for a mistrial based on Officer Nino’s
mention of defendant’s arrest. Defendant’s trial counsel explained that he “made a
strategic decision not to make a motion to strike” at the time of the testimony because he
“didn’t want to bring attention to it in front of the jury.”
The trial court noted it had “admonished” the prosecutor during the unreported
bench conference, telling the prosecutor “that he needed to talk to his witnesses and make
sure that they were aware of the Court’s rulings, in limine rulings.” The trial court had
learned that defendant had been arrested on May 25, 2015, but “on a warrant” rather than
on new charges. The trial court had suggested that the prosecutor ask a follow-up
question to clarify that defendant had not been arrested on new charges so as to
“minimize any potential impact” of Officer Nino’s reference to the arrest.
The prosecutor asserted that Officer Nino had been “a late addition” to his planned
witnesses because the officer he had planned to call was on vacation. The prosecutor had
not had an opportunity to talk to Officer Nino about the in limine ruling.
The trial court denied the mistrial motion, finding that “while the statement was
unfortunate, . . . any impact it may have had was lessened by the follow-up questions.”

-- 28 of 37 --

29
The trial court found that the improper testimony did not “rise[] to the level” of requiring
a mistrial.
3. Analysis - Mistrial Motion
“ ‘A trial court should grant a mistrial only when a party’s chances of receiving a
fair trial have been irreparably damaged, and we use the deferential abuse of discretion
standard to review a trial court’s ruling denying a mistrial.’ [Citations.]” (People v,
Clark (2011) 52 Cal.4th 856, 990 (Clark).)
Defendant contends the testimony about his prior arrest constituted “ ‘incurable
prejudice’ ” because the jury learned—from Officer Nino’s “[n]o fresh charges”
statement—that defendant had been charged with a crime prior to the stabbing incident.
He contends the trial court failed to recognize that the prosecutor’s follow-up question,
though intended to elicit the fact that defendant was not arrested that day, resulted in the
jury learning that defendant had a prior arrest at some point. Defendant also contends
that this was a close case in which evidence of his prior criminality “would have played a
major role in the jury’s verdict.”
The Attorney General directs us to several cases where similarly brief references
to prior criminality did not require the trial court to grant a motion for a new trial. For
instance, in People v. Valdez (2004) 32 Cal.4th 73, an officer testified that he interviewed
the defendant while he was at “ ‘Chino Institute,’ ” which revealed that the defendant was
in custody. (Id. at p. 124.) But since the comment was “brief and isolated,” the trial
court did not err by denying the defendant’s motion for a mistrial. (Id. at p. 128; see also
People v. Bolden (2002) 29 Cal.4th 515, 555 [brief reference to a parole office was “not
significant in the context of the entire guilt trial” and did not require a mistrial]; People v.
Collins (2010) 49 Cal.4th 175, 199 [mistrial properly denied after a witness gave “brief
and ambiguous” testimony about defendant being in prison].)
The testimony in this case was likewise brief, ambiguous, and insignificant in the
context of the entire trial. Although Officer Nino initially referenced defendant’s arrest

-- 29 of 37 --

30
on May 25, 2015, he clarified that defendant had not actually been arrested that day. His
testimony that defendant had “[n]o fresh charges” was ambiguous and did not suggest
that defendant had a violent criminal history. Further, the case was not so close that it
would be incurably prejudicial to admit evidence suggesting defendant had some prior
criminal charges. There was no dispute that defendant stabbed Long, and there was
overwhelming evidence supporting a finding that the stabbing was done with
premeditation and deliberation. On this record, the trial court did not abuse its discretion
by determining that defendant’s “ ‘chances of receiving a fair trial’ ” were not irreparably
damaged by Officer Nino’s testimony, and thus the trial court did not err by denying
defendant’s motion for a mistrial. (See Clark, supra, 52 Cal.4th at p. 990.)
4. Analysis – Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct by failing to admonish
Officer Nino about the trial court’s ruling regarding the May 25, 2015 incident.
“ ‘Although it is misconduct for a prosecutor intentionally to elicit inadmissible
testimony [citation], merely eliciting evidence is not misconduct.’ ” (People v.
Chatman (2006) 38 Cal.4th 344, 379-380.) In this case, it is clear from the record that
the prosecutor did not intentionally elicit the testimony about defendant’s arrest, and thus
that the prosecutor did not use “ ‘ “ ‘ “deceptive or reprehensible methods to attempt to
persuade . . . the jury.” ’ ” ’ ” (See Cunningham, supra, 25 Cal.4th at p. 1000; see also
People v. Erickson (1997) 57 Cal.App.4th 1391, 1403 [prosecutor’s failure to prevent
expert witness from giving testimony in violation of trial court’s order did not “amount to
‘a deceptive or reprehensible method of persuasion’ ”].)
Defendant also contends the prosecutor committed misconduct by failing to
further edit Exhibit No. 9, the photograph of defendant being arrested. Defendant
contends the cropped photograph (Exhibit No. 9A) still “clearly showed that [he] was in
custody.”

-- 30 of 37 --

31
Again, the record fails to support defendant’s prosecutorial misconduct claim. We
have reviewed the cropped version of the photograph (Exhibit No. 9A), which shows
defendant only. There are no officers in the photograph, and although defendant’s hands
are behind his back, one could only speculate that he was in handcuffs. The prosecutor
followed the trial court’s instructions to that Exhibit No. 9 be “edited so that [defendant]
is not being shown in custody”; he did not use “ ‘ “ ‘ “deceptive or reprehensible methods
to attempt to persuade . . . the jury.” ’ ” ’ ” (See Cunningham, supra, 25 Cal.4th at
p. 1000.)
5. Analysis – Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective for failing to object to
Exhibit No. 9A, the cropped version of the photograph taken during defendant’s police
contact on May 25, 2015.
As explained above, the cropped version of the photograph (Exhibit No. 9A)
showed defendant only, with no officers. Although defendant had his hands behind his
back in the photograph, it is not apparent that defendant is in handcuffs. Thus, the
photograph did not violate the trial court’s order that the original photograph be “edited
so that [defendant] is not being shown in custody” and trial counsel’s failure to object did
not fall below “ ‘ “an objective standard of reasonableness.” ’ ” (Lopez, supra, 42 Cal.4th
at p. 966.)
F. Becerra’s Prior Statement
Defendant contends the trial court erred by admitting (through the testimony of
Officer Hall) Becerra’s prior statement that defendant had made an “aggressive motion”
towards Long. The trial court admitted the prior statement as a prior inconsistent
statement pursuant to Evidence Code section 1235 and as past recollection recorded
under Evidence Code section 1237.

-- 31 of 37 --

32
1. Proceedings Below
Becerra testified that he “heard a scuffle” and then saw defendant running away.
He did not “recall seeing anything else, because it was all in a blur.” He gave a statement
to the police the next day, when his memory was “much more fresh.” When shown his
statement, Becerra still could not recall further details of the incident. However, Becerra
did remember telling Officer Hall that defendant had “made an aggressive motion
towards Long.”
The prosecutor requested he be permitted to call Officer Hall to testify about
Becerra’s statement, asserting that the statement would qualify as either past recollection
recorded or a prior inconsistent statement.
Defendant argued that Becerra had been “deliberately trying to mislead” the court
when he claimed he did not remember details of the incident, and thus that Becerra’s
prior statement to police was not admissible as a prior inconsistent statement under
Evidence Code section 1235. Defendant acknowledged that if a transcript of Becerra’s
statement had been prepared and was authenticated, the statement was likely admissible
as past recollection recorded under Evidence Code section 1237, but he argued that the
trial court should only admit part of the statement.
The trial court ruled that the prosecutor could elicit three of Becerra’s statements
to Officer Hall: (1) that defendant made an aggressive move toward Long; (2) that Long
fell back towards the wall; and (3) that Misamore jumped on defendant’s back in an
attempt to pull defendant away from Long. The trial court found that the statements were
admissible under Evidence Code section 1235 and under Evidence Code section 1237.
Officer Hall then testified about his interview of Becerra. According to Officer
Hall, Becerra said that defendant “made an aggressive motion towards [Long] and either
punched or pushed [Long].” Becerra said that Long then fell backwards and hit his head
on a retaining wall, and that Misamore then jumped on defendant’s back “and was
pulling him away” from Long.

-- 32 of 37 --

33
2. Legal Principles
Evidence Code section 1235 provides: “Evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if the statement is inconsistent with
his testimony at the hearing and is offered in compliance with Section 770.” Evidence
Code section 770 provides: “Unless the interests of justice otherwise require, extrinsic
evidence of a statement made by a witness that is inconsistent with any part of his
testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined
while testifying as to give him an opportunity to explain or to deny the statement; or
[¶] (b) The witness has not been excused from giving further testimony in the action.”
Evidence Code section 1237 provides: “(a) Evidence of a statement previously
made by a witness is not made inadmissible by the hearsay rule if the statement would
have been admissible if made by him while testifying, the statement concerns a matter as
to which the witness has insufficient present recollection to enable him to testify fully and
accurately, and the statement is contained in a writing which: [¶] (1) Was made at a time
when the fact recorded in the writing actually occurred or was fresh in the witness’
memory; [¶] (2) Was made (i) by the witness himself or under his direction or (ii) by
some other person for the purpose of recording the witness’ statement at the time it was
made; [¶] (3) Is offered after the witness testifies that the statement he made was a true
statement of such fact; and [¶] (4) Is offered after the writing is authenticated as an
accurate record of the statement. [¶] (b) The writing may be read into evidence, but the
writing itself may not be received in evidence unless offered by an adverse party.”
“We review the trial court’s rulings on the admission of evidence for abuse of
discretion. [Citation.]” (People v. Cowan (2010) 50 Cal.4th 401, 462 (Cowan).)
3. Analysis
Defendant first challenges the admission of Becerra’s statement under Evidence
Code section 1235, arguing that the statement was not inconsistent with his trial
testimony. As defendant points out, Becerra testified that he told Officer Hall that

-- 33 of 37 --

34
defendant had “made an aggressive motion towards Long.” Thus, we agree that
Becerra’s statement to Officer Hall about defendant making “an aggressive motion
towards” Long was not inconsistent with Becerra’s testimony at the hearing, as required
for admission under Evidence Code section 1235. (See Cowan, supra, 50 Cal.4th at
p. 462 [exception requires “ ‘the statement in fact be inconsistent with the witness’s trial
testimony’ ”].)
Defendant next challenges the admission of Becerra’s statement under Evidence
Code section 1237. He first argues that the trial court erred by finding that Becerra had
“insufficient present recollection to enable him to testify fully and accurately” (Evid.
Code, § 1237, subd. (a)) about the stabbing. Defendant points out that when testifying,
Becerra recalled telling Officer Hall that defendant had made “an aggressive motion
towards” Long. However, Becerra also testified he did not recall most other details of the
stabbing incident. Thus, the trial court did not abuse its discretion by finding that
Becerra’s interview with Officer Hall “concern[ed] a matter as to which” Becerra had
“insufficient present recollection to enable him to testify fully and accurately.” (Evid.
Code, § 1237, subd. (a).)
Defendant also contends Becerra’s statement should not have been admitted under
Evidence Code section 1237 because “Officer Hall never authenticated that his police
report was ‘an accurate record’ of Becerra’s statement.” (See Evid. Code, § 1237,
subd. (a)(4) [writing must be “authenticated as an accurate record of the statement”].)
Officer Hall did testify that his interview of Becerra was both video and audio recorded,
and Officer Hall testified that he wrote a report of the interview. Moreover, Becerra’s
testimony helped authenticate the report: he remembered telling Officer Hall that
defendant had “made an aggressive motion towards Long,” and he told the truth to
Officer Hall and made the statement when his memory was “much more fresh.” The trial
court was in the best position to determine whether the foundational requirements of
Evidence Code section 1237, including the reliability of the statement, and on this record

-- 34 of 37 --

35
the trial court did not abuse its discretion by finding those requirements were met. (See
Cowan, supra, 50 Cal.4th at p. 467.)
G. Cumulative Prejudice
Defendant contends the cumulative effect of the “constitutional, instructional, and
evidentiary errors” requires reversal. (See Hill, supra, 17 Cal.4th at p. 844 [“a series of
trial errors, though independently harmless, may in some circumstances rise by accretion
to the level of reversible and prejudicial error”].) However, we have found no errors and
thus there can be no cumulative prejudice.
IV. DISPOSITION
The judgment is affirmed.

-- 35 of 37 --

36
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.
People v. Quiming
H043494

-- 36 of 37 --

37

-- 37 of 37 --