Filed 9/2/26 P. v. Ambriz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084906
Plaintiff and Respondent,
v. (Super. Ct. No. JCF005740)
STEVEN GEORGE AMBRIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Kristine
Gutierrez, James M. Toohey, and Andrew Mestman, Deputy Attorneys
General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted Steven George Ambriz of murder and unlawful
possession of a firearm and ammunition. Ambriz seeks reversal of that
conviction, arguing the trial court inadequately investigated potential juror
misconduct. Ambriz also raises several claims of prosecutorial error.1 We
disagree with Ambriz’s contentions and affirm.
II. BACKGROUND
In December of 2021, Ambriz shot Jordan Schmidt six times, killing
him. Prior to the shooting, the two men were arguing over a firearm that
Schmidt had given to Ambriz. According to witness Carlos Salazar, Ambriz
held Schmidt at gunpoint while he directed Salazar to drive them to the site
of the homicide near the edge of Brawley. Once arriving at the desired
location, Ambriz killed Schmidt.
In 2022, the Imperial County District Attorney’s Office charged Ambriz
with murder (Pen. Code,2 § 187, subd. (a); count 1), kidnapping (§ 207,
subd. (a); count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1);
count 3), and unlawful possession of ammunition (§ 30305, subd. (a)(1);
count 4). Prosecutors alleged a kidnapping special circumstance for the
murder (§ 190.2, subd. (a)(17)(B)) and that Ambriz personally and
intentionally discharged a handgun causing great bodily injury and death in
counts 1 and 2 (§ 12022.53, subds. (b)–(d)).
While the jury deliberated in Ambriz’s 2024 trial, the court received a
note from juror number 9 (Juror No. 9) stating, “ ‘I would like to speak to the
1 Ambriz uses the term “prosecutorial misconduct,” but that “ ‘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.’ ” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 853.)
2 All further undesignated statutory references are to the Penal Code.
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judge regarding a concern regarding continuing to serve on this jury.’ ” In
response, the trial court questioned Juror No. 9 as follows:
The Court: Okay. Does the concern relate to something
outside the deliberation process or is it something inside
the deliberation process?
Juror No. 9: Well, I mean, it’s regarding a comment that
was said during jury —
The Court: Okay. Somebody said something. Was it
something to you?
Juror No. 9: Something generally.
The Court: Just a general statement?
Juror No. 9: Uh-huh.
The Court: Okay. And — and you — you — you didn't
agree with that or you had a problem with that?
Juror No. 9: Uh-huh. Yes.
The Court: Okay. All right. I — I understand your
concern. Is that your only concern?
Juror No. 9: Yes.
The Court: Okay. Do you feel, as you sit here, that you can
follow the instructions that you were given as far as your
duties and obligations as a juror?
Juror No. 9: No, your honor.
The Court: Okay. How would you have a problem not
following the — the instructions? What would be your
concern?
Juror No. 9: I feel, at this point, I am unable to remain
impartial.
The Court: Okay. Your impartiality is — is — you — you
say you cannot do it and cannot continue to do that?
Juror No. 9: Yes.
The Court: Okay. All right. Now, impartiality talks about
bias against people and — and other things related to the
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jury process. That’s what you’re talking about. You don’t
feel you can follow that instruction?
Juror No. 9: Uh-huh.
The Court: Okay.
Juror No. 9: Yes, your honor.
The Court: Okay. Very good. That’s all the questions I
have.
The trial court found good cause to excuse Juror No. 9, and it replaced
her with an alternate. The trial court denied Ambriz’s requests to further
question Juror No. 9 and to ask the entire jury if they heard any
inappropriate comments. The trial court explained that if any other jurors
had concerns, they were aware that they could communicate with the court
by note, and that the comment at issue could have been innocuous or
“something that just rubbed Juror No. 9 the wrong way.”
The trial court informed the jury that it granted Juror No. 9’s request
to be excused. The trial court reminded the remaining jurors to follow the
jury instructions and to inform the court if any of them were unable to do so.
The trial court replaced Juror No. 9 with an alternate and instructed the jury
to disregard all past deliberations and to start deliberations anew.
The newly constituted jury convicted Ambriz of premeditated first
degree murder, finding true the firearm allegations under section 12022.53,
subdivisions (b) and (c). The jury also found Ambriz guilty of counts 2 and 3.
The jury did not return a verdict on count 2 or the kidnapping special
circumstance in count 1, so the trial court instructed them to continue
deliberating.
After the alternate juror who replaced Juror No. 9 was hospitalized and
replaced with a second alternate juror, the jury was unable to reach a verdict
on count 2 or the kidnapping special circumstance in count 1. The trial court
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granted the People’s request to dismiss the kidnapping charge and special
circumstance.
The trial court sentenced Ambriz to prison for 70 years to life. Ambriz
received 25 years to life for count 1, plus 20 years to life for the firearm
enhancement under section 12022.53, subdivision (c), plus 25 years for two
prior strikes. The trial court imposed but stayed 10 years for the section
12022.53, subdivision (b) enhancement, two years for count 3, and two years
for count 4. Ambriz timely appealed.
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion When Investigating the
Comment Reported by Juror No. 9
Ambriz argues that the trial court failed to investigate adequately the
circumstances leading to Juror No. 9’s dismissal. Ambriz claims that because
another juror’s comment caused Juror No. 9 to doubt her impartiality, it
called into question whether that other juror committed misconduct and
whether that misconduct affected the remainder of the jurors. We disagree.
1. Court’s Duty to Investigate Potential Juror Misconduct
“ ‘[C]ourts should exercise caution when undertaking inquiries that
threaten to trench on the sanctity of jury deliberations, for the preservation
of secrecy during deliberations fosters an atmosphere conducive to a frank
and open discussion of the issues among jurors. Ensuring such secrecy also
insulates the jury from improper influence that could be brought to bear by
outside forces and supports the stability of jury verdicts.’ ” (People v. Zemek
(2023) 93 Cal.App.5th 313, 336.) Accordingly, “inquiry into possible grounds
for discharging a juror . . . during jury deliberations . . . ‘should be as limited
in scope as possible.’ ” (People v. McGhee (2025) 17 Cal.5th 612, 629.)
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“ ‘[W]hen a court is put “on notice that improper or external influences
were being brought to bear on a juror . . . ‘it is the court’s duty to make
whatever inquiry is reasonably necessary to determine if the juror should be
discharged and whether the impartiality of the other jurors has been
affected.’ ” ’ . . . On the other hand, ‘not every incident involving a juror’s
conduct requires or warrants further investigation. “The decision whether to
investigate the possibility of juror bias, incompetence, or misconduct—like
the ultimate decision to retain or discharge a juror—rests within the sound
discretion of the trial court. [Citation.] . . . [¶] As our cases make clear, a
hearing is required only where the court possesses information which, if
proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to
perform his duties and would justify his removal from the case.” ’ ” (People v.
Fuiava (2012) 53 Cal.4th 622, 702 (Fuiava).)
For example, in Fuiava, during oral argument Juror J. reported being
distressed because two courtroom spectators associated with the defendant
were talking and pointing at jurors in a nonthreatening manner. (Fuiava,
supra, 53 Cal.4th at p. 701.) Some of the other jurors discussed this, with one
suggesting that a note be sent to the court. (Ibid.) The trial court excused
Juror J., finding it unnecessary to take any further action until the other
jurors reported something. (Ibid.)
On appeal, the defendant claimed the trial court should have
investigated whether the other jurors were prejudiced by the spectators’
alleged conduct. (Fuiava, supra, 53 Cal.4th at p. 702.) Our Supreme Court
disagreed, finding that Juror J. may have been “overly sensitive” and the
circumstances did not suggest that any other jurors were similarly upset.
(Id. at pp. 702–703.) The high court also determined that “it was reasonable
for the trial court to proceed on the belief that any other juror who might
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have been affected by asserted spectator conduct would call that
circumstance to the court’s attention, rather than the court suspending the
trial in the midst of closing arguments to undertake an inquiry on the
subject.” (Id. at p. 703.)
2. Analysis
Here, an unknown juror made a “general statement” during
deliberations, causing Juror No. 9 to doubt her impartiality. Although the
trial court was not aware of what the unknown juror said, one juror’s
statement causing another to question herself does not necessarily imply
misconduct. As the trial court observed, and like Fuiava, the statement could
have been innocuous and simply “rubbed Juror No. 9 the wrong way.”
“ ‘ “[C]ourt[s] must not presume the worst” of a juror.’ ” (People v. Zemek,
supra, 93 Cal.App.5th at p. 337.)
Also, like Fuiava, no other jurors expressed concerned with the
comment. At the beginning of the trial, the trial court instructed the jury
that its decision must be based on the evidence presented at trial, without
bias or independent investigation, and the receipt of outside information
must be reported immediately to the bailiff. The trial court reiterated these
concepts at the close of evidence, admonishing the jurors that they may
communicate with the judge by sending a note through the bailiff, and that
they must follow the law as instructed and decide the case for themselves.
Finally, after informing the jury that Juror No. 9 had been excused, the trial
court told the jurors to inform the court if they had any problem following the
court’s instructions. Despite this direction, no other juror reported anything
about the general comment that caused Juror No. 9 to doubt her impartiality.
Unlike the cases upon which Ambriz relies, the trial court was not
faced with circumstances where improper or external influences can be
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readily inferred. (See People v. McNeal (1979) 90 Cal.App.3d 830, 835–838
[juror had personal knowledge of the case that “ ‘would definitely affect her
decision’ ” and was disclosed to at least one other juror]; People v. Burgener
(1986) 41 Cal.3d 505, 520–521 [juror reportedly intoxicated during
deliberations].) Additionally, “it was reasonable for the trial court to proceed
on the belief that any other juror who might have been affected by [the
general comment] would call that circumstance to the court’s attention,
rather than the court suspending the trial in the midst of [deliberations] to
undertake a [further] inquiry on the subject.” (Fuiava, supra, 53 Cal.4th
p. 703.) We therefore see no abuse of discretion.
B. Ambriz Fails to Demonstrate Prosecutorial Error
Ambriz asserts five grounds of prosecutorial error during closing
argument: (1) relying on facts not in evidence; (2) misstating the law and
shifting the burden of proof; (3) vouching for the People’s case; (4) urging the
jury to sympathize with Schmidt; and (5) denigrating defense counsel. The
first, third, and fifth claims are forfeited, while the remaining two are
unpersuasive.
1. Prosecutorial Error
“Advocates are given significant leeway in discussing the legal and
factual merits of a case during argument.” (People v. Centeno (2014)
60 Cal.4th 659, 666.) “When attacking the prosecutor’s remarks to the jury,
the defendant must show that, ‘[i]n the context of the whole argument and
the instructions’ [citation], there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner.’ ” (Id. at p. 667.) “ ‘[W]e “do not lightly infer” that the
jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.’ ” (Ibid.) We also presume “ ‘the jury treated the
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court’s instructions as statements of law, and the prosecutor’s comments as
words spoken by an advocate in an attempt to persuade.’ ” (People v. Morales
(2001) 25 Cal.4th 34, 47.)
2. Forfeiture
“ ‘A defendant may not complain on appeal of prosecutorial [error]
unless in a timely fashion, and on the same ground, the defendant objected to
the action and also requested that the jury be admonished to disregard the
perceived impropriety.’ . . . This is so, because in many instances, a timely
objection and an admonition ‘would have cured any resulting harm.’ ” (People
v. Thomas (2021) 64 Cal.App.5th 924, 954, citation omitted.) “The
defendant’s failure to object will be excused if an objection would have been
futile or if an admonition would not have cured the harm caused by the
misconduct.” (People v. Centeno, supra, 60 Cal.4th at p. 674.)
During trial, Ambriz never claimed that the prosecutor relied on facts
not in evidence, vouched for the People’s case, or denigrated defense counsel.
Further, nothing in the record indicates that objections would have been
futile, or that the alleged harm was incurable by admonition. These claims of
prosecutorial error are therefore forfeited.
However, contrary to the People’s assertions, we find adequately
preserved Ambriz’s claims that the prosecutor misstated the law, shifted the
burden of proof, and evoked victim sympathy. Ambriz raised these issues
both during oral argument and after the jury had been excused to deliberate,
and he requested jury admonishments.
3. Misstatements of the Law and Burden Shifting
“ ‘[I]t is improper for the prosecutor to misstate the law generally
[citation] and particularly to attempt to absolve the prosecution from its
prima facie obligation to overcome reasonable doubt on all elements.” (People
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v. Hill (1998) 17 Cal.4th 800, 829.) However, “[c]omments on the state of the
evidence or on the defense’s failure to call logical witnesses, introduce
material evidence, or rebut the People’s case are generally permissible.”
(People v. Woods (2006) 146 Cal.App.4th 106, 112.)
In her rebuttal argument, the prosecutor stated:
Check the record because, again, the statements that
attorneys make are not evidence. The record is the
evidence, the testimony is the evidence, and the evidence
that was presented to you is also the evidence. And they
match up. They match up beyond a reasonable doubt.
Now, proof that leaves you with an abiding conviction that
the charge is true, that is what reasonable doubt is. But I
will remind you that there’s no defense in this case.
There’s no self-defense. You didn’t get a jury instruction on
that. There’s no lesser-included offenses. There’s no
manslaughter. You didn’t get an instruction on that ’cause
it doesn’t exist in this case.
The evidence does not support it. The evidence in — in this
case supports the charges that were charged against the
defendant, that with callousness, he coldly and calculated
kidnapped Jordan C. Schmidt, took him on the outskirts of
Brawley, and executed him in cold blood. That’s what the
evidence supports.
The only reasonable conclusion for you to come to in this
case is to find the defendant guilty on all counts and all
allegations.
Ambriz argues that these statements suggest that he had an
affirmative duty to prove his innocence or a lesser degree of culpability,
thereby misstating the law and improperly shifting the burden of proof. We
disagree.
The prosecutor’s remarks are reasonably interpreted as a comment on
the strength of the evidence favoring conviction. (See, e.g., People v. Redd
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(2010) 48 Cal.4th 691, 740 [finding no misconduct where “the prosecutor’s
comments merely highlighted his observation that there seemed to be no
coherent defense to the charges”]; People v. Bradford (1997) 15 Cal.4th
1229, 1340 [“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.”].)
Further, “had any juror interpreted the comments to indicate that
defendant had a burden of proof, this impression would have been dispelled
by the instructions and the numerous reminders to the jurors that the People
bore the burden of proving defendant’s guilt.” (People v. Redd, supra,
48 Cal.4th at p. 740.) The trial court instructed the jury to follow its
instructions to the extent they conflicted with the attorneys’ comments, and
those instructions included that Ambriz is presumed innocent and that the
People must prove his guilt beyond a reasonable doubt. The prosecutor
repeated in her closing argument that the attorneys’ statements are not the
law and that the jury must rely on the court’s instructions. Counsel for both
sides also reiterated that the People had the burden of proof beyond a
reasonable doubt.
Based on the instructions provided, and viewing the prosecutor’s
argument in its entirety, we discern no reasonable likelihood that the
prosecutor’s challenged remarks would have misled the jury to believe that
Ambriz had the burden of proof. We therefore see no prosecutorial error on
this ground.
4. Victim Sympathy
“ ‘ “It is, of course, improper to make arguments to the jury that give it
the impression that ‘emotion may reign over reason,’ and to present
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‘irrelevant information or inflammatory rhetoric that diverts the jury’s
attention from its proper role, or invites an irrational, purely subjective
response.’ ” ’ ” (People v. Leon (2015) 61 Cal.4th 569, 605–606.) And “[a]s a
general rule, a prosecutor may not invite the jury to view the case through
the victim’s eyes, because to do so appeals to the jury’s sympathy for the
victim.” (Id. at p. 606.)
The prosecutor’s closing argument included the following:
[Prosecutor]: [Schmidt] committed criminal activity.
[Schmidt] was involved in gangs. [Schmidt] was involved
with criminals. Again, like Investigator Curiel said, he —
he chose a different path.
But [Schmidt] was also a nephew, a cousin —
[Defense counsel]: Objection. Improper argument.
The Court: Sustained.
[Prosecutor]: [Schmidt] was also a person.
[Defense counsel]: Objection. Improper argument.
The Court: Overruled.
[Prosecutor]: He didn’t deserve to die. He certainly didn’t
deserve to die at the hands of this defendant who took him
out to the outskirts of Brawley and executed him in cold
blood and left his body there for investigators to find.
In her rebuttal argument, the prosecutor also stated, “I’ve had to look
at pictures of [Schmidt] over and over again, deceased, the details of
[Schmidt’s] . . . .” At that point, the trial court sustained Ambriz’s improper
argument objection and instructed the prosecutor to move on.
Ambriz argues that these remarks constituted prosecutorial error
because they urged the jury to sympathize with Schmidt and to put
themselves in Schmidt’s place at the time he was shot.
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Although the prosecutor described the circumstances of the murder,
she did not invite the jury to walk in Schmidt’s shoes or relive his experience.
Additionally, those circumstances were a fair comment on the evidence and
relevant to the People’s theory of premeditated first degree murder with a
kidnapping special circumstance. (See, e.g., People v. Leon, supra, 61 Cal.4th
at p. 606 [no misconduct where prosecutor “did not invite the jury to place
themselves in [the victim’s] shoes or to imagine his suffering” but rather
“directed their attention to [the victim’s] behavior . . . to point out how he was
callously shot in the back”].)
Additionally, even though the comments could have invoked the jury’s
sympathy, they were brief, and the trial court sustained two of Ambriz’s
improper argument objections. The trial court also instructed the jury not to
let sympathy influence its decision, to impartially consider all the evidence,
to convict Ambriz only if the evidence proved that he was guilty beyond a
reasonable doubt, and that statements by counsel are not evidence. “We
presume the jury followed the court’s instruction[s].” (People v. Martinez
(2010) 47 Cal.4th 911, 957.)
Under these circumstances, it is not reasonably likely that the jury
applied the challenged comments in an improper or erroneous manner. Abriz
has therefore failed to show prosecutorial error on this ground as well.
C. There is No Cumulative Error
As discussed above, we find no error to cumulate. “We therefore reject
defendant’s claim that cumulative error in his trial denied him a fair trial
and due process of law.” (People v. Koontz (2002) 27 Cal.4th 1041, 1094.)
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IV. DISPOSITION
The judgment is affirmed.
RUBIN, J.
I CONCUR:
KELETY, J.
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Dato, J., Dissenting.
I respectfully dissent.
The alleged juror misconduct in this case is all about what we don’t
know. An unidentified juror made a statement during deliberations, the
content and context of which is unknown. All we do know is that the
statement caused one of the other jurors—Juror No. 9—to believe she could
no longer be fair and impartial. Accepting this assessment as accurate, the
trial court discharged Juror No. 9 and substituted an alternate. But it made
no attempt to ascertain anything about what was said and, most importantly,
whether the impartiality of other jurors might have been affected. It merely
provided jurors with a desultory reminder—“if any of you have a problem
with following the jury instructions, you just let the court know and we’ll
leave it at that”—and sent them back to restart their deliberations.
Following the verdict, Ambriz filed a request to unseal contact
information for the discharged Juror No. 9, hoping to obtain evidence in
support of a motion for new trial. The court denied the request, concluding
that “[t]he dismissal of Juror [No. 9] before any verdict was reached or the
surrounding circumstances do not rise to the level of a factual showing of
good cause to establish a prima facie showing to unseal Juror Information.”
Ambriz was left to file a motion for new trial based in part on the court’s
failure to investigate the possibility of juror misconduct, but unaccompanied
by any declaration from Juror No. 9. That motion was also denied.
When the trial court becomes aware of the possibility one or more
jurors may have been subject to improper influences that could affect their
impartiality, it has a “duty to make whatever inquiry is reasonably
necessary” to determine (1) if the affected juror(s) should be discharged,
and (2) “whether the impartiality of other jurors has been affected.” (People
v. McNeal (1979) 90 Cal.App.3d 830, 839 (McNeal); accord People v. Hem
(2019) 31 Cal.App.5th 218, 227–228 (Hem).) Most cases involve McNeal’s
level one inquiry and whether a juror was properly retained or discharged.
(See, e.g., People v. Burgener (1986) 41 Cal.3d 505 [allegedly intoxicated
juror]; People v. Dell (1991) 232 Cal.App.3d 248 [jurors discharged for illness];
People v. Chavez (1991) 231 Cal.App.3d 1471, 1479 [juror spoke with law
enforcement witness outside courtroom].) This case focuses on the adequacy
of the level two inquiry.
The trial court here resolved the level one inquiry to its satisfaction
by questioning Juror No. 9 and concluding she could no longer be impartial.
Ambriz does not challenge that conclusion, nor the court’s subsequent
decision to discharge Juror No. 9. The problem is that the questioning of
Juror No. 9 shed no light on what the statement maker said, whether the
statement was heard by and affected any other juror, and whether the
statement itself constituted misconduct. But the mere fact a statement was
made by a juror that destroyed the ability of at least one other juror to be
impartial was enough to require additional investigation.
In the trial court’s view, any further questioning of Juror No. 9 would
have required it “to get into the deliberative process of the jury.” As a result,
at every stage of the proceedings Juror No. 9’s disclosure was handled like a
hot potato. Although questioning jurors in midst of deliberations must be
conducted with some sensitivity, a court cannot sidestep that challenge by
pretending there isn’t a problem. (See People v. Cleveland (2001) 25 Cal.4th
466, 476 [“The need to protect the sanctity of jury deliberations ... does not
preclude reasonable inquiry by the court into allegations of misconduct
during deliberations”].) Here, the judge quickly decided to discharge Juror
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No. 9, but then declined to ask her what was the nature of the statement
made during deliberations that caused her to lose her impartiality and, if
appropriate, whether that statement might have similarly affected other
jurors. (See id. at p. 484 [Evidence Code section 1150 “expressly permits”
courts to consider evidence of statements made in the jury room].) Exploring
those questions would not have been a “ ‘fishing expedition’ ” in search of
misconduct (see People v. Hedgecock (1990) 51 Cal.3d 395, 419); rather, it was
“a necessary step to preserve defendant’s right to a fair jury trial.” (Hem,
supra, 31 Cal.App.5th at p. 227.)
Moreover, even if interfering with ongoing jury deliberations was
initially a legitimate concern, it largely evaporated once Juror No. 9 was
discharged and the reconstituted jury began deliberating with an alternate
juror. At that point, Juror No. 9 was no longer a deliberating juror, and the
court should have made at least a limited inquiry as to what was said to her
and if she knew whether anyone else was in a position to hear it. It then
could have decided if further questioning of any deliberating juror was
warranted.
Not only did the trial court fail to adequately investigate the possibility
of juror misconduct when it first became aware of it, but it then compounded
its initial error by refusing to release contact information for Juror No. 9 so
that Ambriz could interview Juror No. 9 in support of his motion for new
trial. Under these circumstances, the lack of information resulting from the
court’s failure to conduct an appropriate inquiry cannot be deemed harmless
(McNeal, supra, 90 Cal.App.3d at p. 840), and I believe we have no choice but
to reverse the convictions.
DATO, Acting P. J.
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