California Court of Appeals, Second District, Eighth Division
from a judgment of the Superior Court of Los Angeles County
No. BA417074, Leslie A. Swain, Judge. Affirmed and remanded
for an amended abstract of judgment.
Office of Elizabeth K. Horowitz and Elizabeth K. Horowitz,
under appointment by the Court of Appeal, for Defendant and
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Scott A. Taryle, Supervising Deputy Attorney
General, and Nancy Lii Ladner, Deputy Attorney General, for
Plaintiff and Respondent.
convicted Juan Ramirez of a shotgun murder. On appeal,
Ramirez argues a range of errors. We hold there was no
instructional error, prosecutorial misconduct, or cumulative
error. Ramirez forfeited his ability-to-pay argument. There
was no sentencing error. By agreement, the abstract of
judgment must be amended. References are to the Penal Code.
the verdict, the facts are these. When Ramirez was 20, his
co-defendant Armando Semidey held a wedding reception at an
apartment complex. Murder victim Salvador Zambrano attended,
got drunk, grabbed a woman, and started fighting. Zambrano
hit groom Semidey in the face and knocked him down. Guests
forced Zambrano out of the complex, but he and a group
gathered nearby. Ramirez heard Zambrano struck Semidey.
Ramirez and four others drove to confront Zambrano and his
group. Ramirez got out with a sawed-off shotgun and said
“Who is the mother fucker who hit my brother, my
friend?” A second fight started. Ramirez withdrew, took
the shotgun back to the truck, put it inside, and stayed
there. Then one of Ramirez’s group told him,
“Kill that mother fucker. Kill him. Kill him.”
Ramirez got the shotgun and fired a deadly blast into
appeals on six grounds.
independently review Ramirez’s appeal about jury
court must instruct the jury on general principles of law
necessary for the jury’s understanding of the case.
Defendants have a right to an instruction pinpointing their
defense theory, but the court may refuse incorrect,
argumentative, duplicative, or confusing instructions.
(People v. Hovarter (2008) 44 Cal.4th 983, 1021.)
trial court instructed the jury about voluntary manslaughter
using CALCRIM No. 570. Ramirez requested two special
instructions. The trial court properly declined them.
first proposed special instruction stated “Provocation
sufficient to reduce murder to voluntary manslaughter may
accumulate over a period of time and may be based upon a
series of acts.” This instruction duplicated the
sentence in CALCRIM No. 570 that “Sufficient
provocation may occur over a short or long period of
time.” The main difference is the CALCRIM sentence is
concise and the proposed instruction is not. The trial court
rightly rejected this duplicative instruction.
second proposed special instruction was argumentative. This
second proposal was “A defendant may witness potential
acts of provocation and/or be informed of them
afterwards.” Nothing in CALCRIM No. 570 was to the
contrary. This CALCRIM does not say Ramirez himself had to
witness the provocation, or that merely being informed of the
provocation was suspect or insufficient. To the contrary, the
CALCRIM required only that Ramirez “was provoked,
” and that the provocation would have caused an average
person to act from passion. Because the CALCRIM contained no
restrictions on the means of provocation-eyewitness
observation versus being informed by others-Ramirez’s
second proposal could contribute no logical content. It would
simply add emphasis that would favor one side and not the
other, which is to say the proposal was argumentative. The
trial court correctly rejected this instruction.
second argument is that there was prosecutorial misconduct.
There was not.
characterizes two categories of comments as prosecutorial
misconduct. The first involves four comments in which Ramirez
contends the prosecutor improperly equated voluntary
manslaughter with justified or excused killing. Ramirez says
these statements were misleading, inaccurate, and
inappropriate because they implied to the jury that it would
be forgiving or lenient to find Ramirez guilty of the lesser
crime. The second category involves two comments where,
according to Ramirez, the prosecutor implied that if a
reasonable person would not kill under the circumstances of
this case, the legal standard for provocation has not been
met. We address each category in turn.
closing argument, the prosecutor argued a punch did not
justify the defendant shooting Zambrano in the back, and that
drinking and being a “jerk” did not justify or
excuse Zambrano’s shooting. The prosecutor made similar
arguments that “you don’t get to” shoot
somebody because “you heard they punched your friend or
may have been rude or insulting.” The trial court
overruled Ramirez’s objection to the third of a total
of four such comments. Ramirez argues these comments
conflated the law of voluntary manslaughter with a justified
or excusable killing, constituting prosecutorial misconduct.
prosecutor’s comments were not prosecutorial
misconduct. The prosecutor never said the law barred the jury
from finding the alleged provocations caused Ramirez to act
without deliberation and reflection. Instead she argued a
reasonable person would not have acted in the heat of passion
based on what Ramirez heard and saw in this case. The first
two comments were made as the prosecutor was working her way
through the evidence, not when she discussed the elements of
homicide and voluntary manslaughter. The third comment
appears in the transcript four pages after the prosecutor
stated the law of voluntary manslaughter; it was part of her
argument that a reasonable person would not act in the heat
of passion based on what happened here. This was her theory
of the case. She was entitled to advance this theory in
closing argument. The same goes for her fourth comment: that
shooting Zambrano because you heard he punched your friend or
was being rude at a party was first degree murder, not
cites cases. According to the Najera case, it is
acceptable for a prosecutor to say a voluntary manslaughter
conviction would give a defendant a “break.”
(People v. Najera (2006) 138 Cal.App.4th 212, 220
(Najera).) But according to Ramirez, the
Peau case made it unacceptable for prosecutors to
call an imperfect self-defense instruction a
“loophole.” (People v. Peau (2015) 236
Cal.App.4th 823, 832 (Peau).)
incorrectly argues his case is more like Peau than
Najera. While explaining the elements of imperfect
self-defense, the Peau prosecutor indeed called
imperfect self-defense a “loophole.” (Peau,
supra, 236 Cal.App.4th at p. 832.) But that prosecutor
went on to say “[i]mperfect self-defense doesn’t
apply. The defendant is not walking out of these doors
using this excuse.” (Ibid., italics
added.) That prosecutor misleadingly suggested a finding of
imperfect self-defense would free the defendant.
Ramirez’s prosecutor did not.
prosecutor’s comments were more like those in
Najera than Peau. By arguing
Ramirez’s behavior was not “justified” or
“excused, ” she may have implied the jury would
be giving him a break if they reduced murder to manslaughter.
That is different from implying the jury would be letting him
escape all criminal punishment. And the court’s jury
instructions told the jury a finding of provocation could
reduce the charge from murder to voluntary manslaughter, not
eliminate the charges altogether. The prosecutor’s
comments were not improper.
second category of allegedly impermissible argument involves
two comments where, according to Ramirez, the prosecutor
implied that, if a reasonable person would not kill under the
circumstances of this case, the legal standard for
provocation has not been met. It is true the standard for
reducing murder to manslaughter under a heat of passion
theory is not whether a reasonable person would have killed
in a similar scenario, but whether a reasonable person would