Filed 10/28/26 P. v. Barragan CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B343278
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA503701)
v.
MANAHIM BARRAGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert C. Vanderet, Judge. Affirmed.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
In the proceedings below, a jury convicted appellant
Manahim Barragan of several crimes, including the murder of
Daniel Hernandez.1 The court sentenced him to sixty years to life
for the murder conviction and ordered the sentences for the other
crimes to run concurrently.
During voir dire, over the defense’s objection, the court
excused a prospective juror for undue hardship. Separately,
defense counsel made a prosecutorial misconduct objection when,
as part of his closing argument, the prosecutor claimed defense
counsel had asked Barragan “entirely leading questions” and
“basically testified.” The court overruled the objection and
subsequently denied a motion for mistrial made on the grounds
that the remark “unduly prejudiced” Barragan and “result[ed] in
a denial of due process.”
On appeal, Barragan argues the trial court erred in not
finding the prosecutor’s remark to be prosecutorial misconduct,
not granting the motion for mistrial, and excusing the prospective
juror. We need not decide whether the court erred in finding the
remark was not prosecutorial misconduct because even if it did
err, we conclude the purported error was not prejudicial. We
further conclude the court did not abuse its discretion in denying
the mistrial motion or excusing the prospective juror. We
therefore affirm.
1 Hernandez’s “legal name” was Noe Uscanga. Because the
parties mostly referred to him as Hernandez both at trial and on
appeal, we do the same.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Barragan Is Charged With Murder
After a March 2024 preliminary hearing in which Barragan
was held to answer, an information charged him with the
following acts, all of which occurred in March 2022: murdering
Daniel Hernandez with a firearm (count 1), being a felon in
possession of a firearm (counts 2 through 5), unlawful possession
of ammunition (count 6), making criminal threats (count 8), and
fleeing a pursuing peace officer while driving recklessly (count
9).2 Barragan pled not guilty.
B. Voir Dire; Prospective Juror No. 1 Is Excused
Jury selection began on October 18, 2024. The clerk swore
in all prospective jurors, asking if each of them “understand and
agree that you will accurately and truthfully answer under
penalty of perjury, all questions propounded to you concerning
your qualifications and competency to serve as a trial juror in the
matter pending before this court; and that failure to do so may
subject you to criminal prosecution?” The prospective jurors
responded affirmatively.
1. The Court Initially Declines to Excuse
Prospective Juror No. 1
On October 22, 2024, immediately after the People and
Barragan accepted the jury panel as “currently constituted,” the
2 The information did not include a count 7 alleged against
Barragan. According to the People, “[a] count 7 charge for
possession of a firearm by a felon ([Pen. Code,] § 29800, subd.
(a)(1)) was listed against codefendant [Efrain] Vasquez. Vasquez
reached a plea agreement prior to the preliminary hearing.”
3
prosecutor stated: “Your Honor, I would just -- before we swear
them in, I don’t think we did hardships.” The court agreed and
asked the prospective jurors whether it would be a hardship for
any of them to serve as a juror in the trial. Prospective Juror No.
1 and two others raised their hand.
Outside the presence of the other jurors, Prospective Juror
No. 1 explained that he was “between jobs” but had a job
interview between 3:00 p.m. and 5:00 p.m. the next day. Upon
questioning from the prosecutor, the prospective juror explained
it was a telephonic interview, that he would not get the job if he
was required to be absent for the next two weeks, that he had
stopped working on October 4 and had “yet” to collect
unemployment, and that if he did not “get something soon,” he
would be “stuck in a rut.” When the prosecutor asked whether
that would affect his “household’s ability to make payments and
stuff like that,” the prospective juror responded, “absolutely.”
Defense counsel asked no questions.
After asking the prospective juror to return to his seat, the
court asked the parties if they would stipulate to excuse the
prospective juror from service. The prosecutor agreed but
defense counsel did not, arguing the prospective juror “could start
collecting unemployment” and pointing out the prospective juror
was “doing a job interview” and “[t]here is no guarantee he’s
going to get that job.” The court proposed that it could
“accommodate his job interview” and agreed that “he may not get
the job though.” The court added that “[w]e’re going to pick
enough alternates” and “[w]e don’t have that many minority
defendants [sic] and I’m sensitive to that.” The prosecutor
responded, “I think you meant minority juror. But he’s not of the
same ethnic group as the defendant.” The court agreed.
4
After hearing the other prospective jurors’ statements of
hardship, the prosecutor acknowledged they already had “an
accepted panel” but asked if the court could “allow challenges to
be exercised” because “[s]ome of the things that have been evoked
as a result of these hardship conversations may have grounds for
prior preemptory challenges that we were unaware of because we
thought we were going to get into hardships.” The court denied
the request.
The court then spoke again with Prospective Juror No. 1
and asked, “If I let you keep your phone on and we broke if the
phone rang, would that be okay?” The prospective juror clarified
he would need to “take a break to answer that call.” The court
responded, “I mean you’d have to take a break no matter where
you were.” The prospective juror stated, “Well, I would be home,
naturally, but being here -- I guess so.” The court ruled, “Okay.
Well, that’s what we’re going to do. Okay?” The prospective juror
replied, “Okay.”
2. The Court Changes Its Mind
The next day, before the prospective jurors were sworn in
and outside their presence, the court “excuse[d the] prospective
juror seated in seat 1 due to the juror[’]s personal hardship, over
the defense[’s] objection.” Specifically, the court stated:
“I’ve had further opportunity to reflect on the question of
whether [the] juror seated in seat No. 1 should be excused on
grounds of personal hardship, and I’ve concluded that he should
be. I want to state on -- for the record my reasons in reaching
this conclusion.
“Juror No. 1 has been, for some time, unemployed. He
recently was notified of the opportunity to interview for jobs by
telephone later today. When he advised us of that fact and asked
5
to be excused, I suggested that he could perhaps take the call in
the hall while sitting in the jury box. He was not happy with that
suggestion.
“Upon further reflection, I think his reluctance is justified.
It is unquestionable, I believe, that he would be better prepared
for a successful interview if he could take that call in the
comfortable and familiar surroundings of his own home rather
than in an institutional hallway.
“The juror in question is Black, and while it will certainly
be desirable to have further diversity on the panel, I will note
that the defendant is not of the same race as the juror. At least
does not appear to the court to be.
“Given the circumstances of the juror’s situation, there is
little doubt that if the juror were White, we would excuse him on
hardship grounds. To not do so because he is Black would, in
effect, be punishing him because he’s African-American. That
would be contrary to all norms of racial equality and
nondiscrimination that we strive to achieve in our system of
justice.”
Defense counsel objected to the ruling, arguing it was
“clearly speculative that [the juror] would be hampered in any
way or be a hardship on him, particularly since the court is
allowing him to take the call if he, in fact, receives it.” Defense
counsel argued the juror was “not in danger of being homeless”
and that he was either collecting unemployment or would be
collecting unemployment. Although the panel had not yet been
sworn in, counsel contended he “agreed to that panel of jurors
based on the composition of it,” and asserted that if the court
excused the juror, Barragan “will be denied a fair trial.” The
court overruled the objection, asked the prospective jurors to be
6
brought in, and continued with voir dire. A panel of 12 jurors
and three alternates were eventually selected and sworn in.
C.
Testimony
Eighteen witnesses testified over seven days. Below, we
summarize the testimony of sixteen witnesses relevant to this
appeal.3
1.Jazmine Quiroz
Jazmine testified that Barragan was her uncle.4 On March
5, 2022, she was living at her grandparents’ house in Los
Angeles. The house was divided into the “front house” and the
“back house”; Jazmine slept in the back house.
That morning, she woke up before 7:00 a.m. After she got
out of bed, she left the back house and approached the back door
of the front house to get ready for a special event. As she did so,
she saw a man and woman walking out of that door; Jazmine let
them pass and then went into the front house. The man was bald
and had facial tattoos.5 After Jazmine entered the house, she
3 The testimony of one witness (Daniel Parra) is omitted as
repetitive, and the testimony of the second witness (Josue Perez)
is omitted because it relates to a charge on which the jury
acquitted Barragan.
4 Except for appellant Barragan, when a witness shares a
surname with another witness or party, we use their first name
to avoid confusion.
5 When the prosecutor showed Jazmine a picture of an
individual with facial tattoos including two lines, Jazmine stated
she did not remember if that was the person she saw walking out
of the house. However, she admitted that, at the preliminary
hearing, when her “memory was maybe a little bit better,” she
(Fn. is continued on the next page.)
7
went to the laundry room to grab some shoes and then went into
the kitchen. At that point, she heard three loud noises that
sounded like fireworks. Jazmine “froze” for approximately one
minute—she did not know what the sounds were—and then she
called her aunt, who was sleeping in a room next to the kitchen.
The phone rang, but no one answered. The call was placed at
7:07 a.m.
Jazmine proceeded to the bathroom to change her clothes.
Because she was unsure she had her dress on right, she went into
the living room, where her brother Matthew and his girlfriend
slept, to ask him for help. When Jazmine saw him, he seemed
“protective,” and was holding his girlfriend “in a protective way.”
After her brother helped her with the dress, Barragan came
into the living room and got into an argument with Matthew.
Jazmine testified that her brother “was saying something along
the lines of, why the fuck would you unload a clip while my
family’s in the house”; Jazmine did not recall Barragan’s
response.
After the argument, Barragan asked Jazmine if she had
heard or seen anything. Jazmine responded she had not seen
anything, but she had heard something. Barragan asked again
“in a more assertive tone” whether she had heard something,
which Jazmine understood as Barragan wanting her to say she
had not.
had positively identified that person as the person she saw on
March 5, 2022. During the defense case, Barragan identified the
individual “with the two dots and two lines on his forehead” as
Efrain Vasquez.
8
2. Christopher Orosco
Orosco testified he was a “gang detective” assigned to the
“East Los Angeles Sheriff’s station.” He testified as an expert on
the Choppers 12 gang.6 In gang culture, including with Choppers
12, the word “rat” means “snitch” and is the “ultimate sign of
disrespect, pretty much labeling whatever gang member that is,
as somebody who has snitched, ratted on another gang member,
which is pretty much the ultimate offense in gang culture.” The
penalty for being a rat “could range from getting severely beaten
by the gang, by members of that gang that you ratted on, which
would be typically your own gang, or murdered.”
3. Aniceto Barragan
Aniceto testified he was Barragan’s father. In the morning
of March 5, 2022, he was living in his Los Angeles home and
believed he heard five gunshots. Sometime thereafter, “the
sheriff” knocked on the door to the house and, after he left,
Barragan entered Aniceto’s room, about two hours after Aniceto
heard the gunshots. Barragan asked Aniceto to pray for him and
made a statement that Hernandez “was a rat.”
Aniceto also identified a car belonging to Hernandez that
was parked in front of Aniceto’s home from the night of March 4,
2022, until March 5, 2022.
4. Manantial Arellano
Arellano testified she was Barragan’s sister and was living
at her parents’ Los Angeles home on March 5, 2022. That
6 The parties stipulated that between March 5 and 7, 2022,
Barragan, Vasquez, and Hernandez were all members of the
Choppers 12 gang.
9
morning, she was sleeping in her parents’ bedroom when she
heard multiple noises that she initially thought were fireworks.7
The noises woke her, and she spoke with her father about them,
then went back to sleep. She awoke again when Barragan
walked into the room and spoke to their father. Arellano testified
that Barragan “was basically saying, like, to pray for him because
he had to do what he had to do because Danny was a rat.”8
Arellano acknowledged she received a call from Jazmine at 7:07
a.m. immediately after the gunshots but did not answer it.
5. Matthew Quiroz9
Matthew testified Barragan was his uncle. On the morning
of March 5, 2022, he was sleeping in the living room of his
grandparents’ house with his girlfriend, when he was awoken by
the sound of gunshots. He rolled over onto his girlfriend, who
was pregnant, “to be sure that nothing was going to happen to my
baby.” He did not look at a clock or watch but estimated he
awoke sometime between 6:00 a.m. and 7:00 a.m. He also heard
footsteps and the back door slamming. Matthew testified he saw
7 Arrellano testified she was in her parents’ bedroom
because her mother was out of town, and her father suffered from
anxiety and panic attacks during the night, so she did not want
to leave him alone in the room.
8 After Arellano clarified the conversation took place in
Spanish, she attempted to recreate the conversation in Spanish;
when she did so, a Spanish interpreter translated the sentence
Barragan spoke as “I had to do it because it was, he ratted [sic].”
Arellano admitted she did not remember if these were Barragan’s
exact words.
9 The court permitted Barragan to call Matthew out of
order to accommodate Matthew’s schedule.
10
Vasquez and a woman running out of the house after he heard
the gunshots. He did not see Jazmine enter the house that
morning.10 He denied asking Barragan, “Why would you unload
a fucking clip with your family in the house?” Matthew also
testified that while he did not see Hernandez the night of March
4, 2022, he saw Hernandez’s car at the house.
6. Amber Sage
Sage testified she was a senior criminalist with the Los
Angeles County Sheriff’s Department and performed a variety of
DNA tests on evidence in the case. For a DNA sample on Item
No. 9.1—a “trigger and guard” from a “semi-auto with Glock
frame”—she concluded that there was “a mixture of DNA,
assumed to be from three individuals,” one of whom may have
been Barragan. She testified the DNA profile was
“approximately 33,438 times more likely if it originated from
Manahim Barragan and two unknown individuals than if it
originated from three unknown individuals.” From this sample,
there was also “limited support” for excluding Vasquez and
Hernandez, quantified as “five times more likely” that the DNA
profile “originated from three unknown individuals than if it
originated from Efrain Vasquez and two unknown individuals”
and “87 times more likely” that the DNA profile “originated from
10 On cross-examination, the prosecutor played a recording
of an interview Matthew had with law enforcement, in which he
stated that when he saw Vasquez and a woman leave around 7:00
a.m., “my sister was calling me to go open the back door for her.”
Matthew admitted that it was his voice in the clip, that the clip
was “part of the interview” that he gave “shortly after the
investigation started for the gunshots,” and that he was “being as
truthful as [he] could” when he was answering the questions.
11
three unknown individuals than if it originated from [Hernandez]
and two unknown individuals.”
On Item No. 8.2—a “grip, frame, and the slide” of a “Glock
22, Gen 4, .40 caliber semi-auto”—there appeared to be mixture
of DNA from two contributors, one of whom may have been
Vasquez. She testified the DNA profile was “750 times more
likely if it originated from Efrain Vasquez and an unknown
individual than if it originated from two unknown individuals.”
There was also limited support for excluding Barragan and
Hernandez.
7. Cristina Gonzalez
Gonzalez testified she was a “senior criminalist for the L.A.
County Sheriff’s Crime Lab.” She testified she took the DNA
swabs for Item Nos. 8.2 and 9.1 (about which Sage previously
testified). The swabs were placed on a “DNA plate” and sent to
Sage. Gonzalez took the swabs from the firearms at the crime
lab, meaning prior to her receiving the firearms, someone else
had collected them and sent them to her.
8. Jessica Liang
Liang testified she was a “forensic identification specialist
with the Los Angeles County Sheriff’s crime lab.” Among other
things, she recovered cartridge cases and fired bullets from the
room in which Hernandez was found. The two cartridge cases
found were nine-millimeter cartridge cases.
Liang stated that when she arrived at Barragan’s room,
“inside the room, there was a cot on the west side of the room.
On top of the cot was laying a victim. There was a mattress that
was on the east side of the room that had comforters and
blankets kind of piled on top of it.” She continued, “There was
12
also a mirror that was a full-length mirror that had been propped
up against the west wall adjacent to the decedent’s head. There
was also a plastic storage container underneath the window on
the north wall.” Liang identified photographs as showing
Barragan’s room.
Liang also identified pictures of a “plastic drawer container
set that was against the north wall” of Barragan’s room, parts of
which “have what appear to be holes.” She additionally identified
pictures she took of “trajectory rods” which were inserted into
these holes, explaining that trajectory rods “are used to
determine the trajectory when doing a firearms analysis.” She
testified these trajectory rods were placed by her colleague, Aaron
Lewis.
9. Aaron Lewis
Lewis testified he was a “senior criminalist employed by
the County of Los Angeles at the Sheriff’s Department Crime
Lab.” His task was “to examine any firearms related evidence,
looking for fired cartridge cases, fired bullets, as well as
trajectory determination. So if a bullet passes into a certain
object, I can determine where the shot originated from.”
He stated there were five fired bullets recovered from the
room in which Hernandez was found. Lewis also testified the
trajectory rods pictured in the exhibits Liang identified were
“trajectory rods that I utilized to determine the path of the bullet
through those objects,” meaning “the muzzle of the firearm that
caused those defects in that plastic shelf had to be along that rod
somewhere.”
13
10. Amanda Davis
Davis testified she was a “senior criminalist with the Los
Angeles County Sheriff’s Department.” Davis test-fired the
handgun previously identified as Item No. 9. After doing so, she
compared the cartridge casings to those found at the scene and
determined the cartridge casings found at the scene were fired
from the handgun marked as Item No. 9. She also compared the
bullets she test-fired to the bullets found at the scene and
determined the bullets found at the scene were fired from the
handgun marked as Item No. 9. As for the firearm identified as
Item No. 8, Davis did no comparisons because that handgun fired
bullets of a different caliber.
11. Edwin Navarette
Navarette testified that on March 6, 2022, he was assigned
to the East Los Angeles Sheriff’s station. He had been informed
of three incidents: “one of them involving a murder, a criminal
threats [sic], and a vehicle involving a firearm. And the vehicle
description was a black newer-model Dodge Challenger.” On
March 7, 2022, he drove by the Carlo Motel while on patrol and
saw a black Dodge Challenger. He also saw two individuals
walking toward the vehicle; one of them was Barragan.11
Navarette and Barragan made eye contact, and both individuals
immediately ran into a motel room. Navarette called for backup,
who eventually arrived on the scene. When Navarette later
arrested Barragan, his hair was different than when Navarette
first saw him.
11 Navarette discovered the second individual was Vasquez
after arresting him.
14
12. Ramon Munoz
Munoz testified he was a detective sergeant for the Sheriff’s
Department on March 7, 2022. He found freshly cut hair in the
motel room that Barragan and Vasquez had run into. He also
saw two phones that appeared to be “purposefully damaged” and
submerged in a bucket of water. In the motel room, there was a
small crawlspace leading to an attic. Munoz asked Deputy Stacie
Perez—who was “a lot smaller” than Munoz—to look in the attic;
Deputy Perez discovered the two handguns about which the other
officers had previously testified. When the deputy saw the
firearms and relayed to Munoz what she had seen, he passed her
some gloves to don before touching the handguns.
13. Kevin Young
Young testified he was a deputy medical examiner for Los
Angeles County. He asserted Hernandez’s cause of death was
“gunshot wounds of the head [sic].” Specifically, Hernandez
suffered four gunshot wounds to the right side of his head. He
also suffered three gunshot wounds to the right arm. None of the
bullets lodged in the body; they were all “through-and-through
wounds.”
14. Maria Maciel
Maciel testified she worked for the Los Angeles County
Sheriff’s Department as a homicide detective and was doing so on
March 5, 2022. Maciel took the DNA swab from Barragan that
was “provided to the evidence lab that ultimately went to the
criminalist that testified earlier in the case.” Maciel and her
partner interviewed Barragan on March 8, after his arrest. The
prosecutor played a recording of the interview for the jury.
15
During the interview, Barragan claimed that when the
shooting occurred, he was “like, three blocks away. Two blocks
away with a girl.” However, soon thereafter, he told the
interviewing officers that he “wasn’t even at her house yet” and
“was barely on my way.” Later, when asked if he was with the
girl when he heard gunshots, Barragan said he was and
described her reaction. Still later he told the interviewers he was
“chillin [sic] [with the girl] outside of, like, in front of her pad”
when he heard the gunshots.
After hearing the gunshots, he returned home, went
“straight to [his] room,” and saw Hernandez “laid out.” Barragan
could “smell” that Hernandez was dead. Barragan said, “I didn’t
see, like, no blood” but also said he saw blood “where his head
was laid at.”
Barragan stated he believed a rival gang shot Hernandez.
When directly asked whether Vasquez killed Hernandez,
Barragan said he did not. He also denied killing Hernandez
himself. Barragan stated Vasquez was previously present at the
house but, unlike Hernandez, did not spend the night.
When one of the interviewers told Barragan that one of the
guns found at the hotel where Barragan was arrested “matches
the gun that was used to kill Danny,” Barragan explained that
“whoever did it, left the gun right there” and he “took it with
[him] after.” The other gun found at the motel belonged to
Hernandez. However, Barragan also agreed that the people who
shot Hernandez “left two guns” in his room.
Barragan claimed he lost his phone on March 5. He stated
he cut his hair because he “just wanted a new look.” He admitted
that on March 6, 2022, the “cops were chasing [him]” in “Danny’s
car,” which he had taken from the front of his house.
16
After the recording of the interview concluded, the
prosecutor asked Maciel whether Barragan could have heard
gunshots from the location of the “pad” of the woman he claimed
to be with—Maciel testified he could not have, especially if the
gunshots occurred inside a house.
15. Barragan
Barragan admitted he “lie[d] all the time,” but claimed he
was “not lying right now.” He explained he lied when Detective
Maciel interviewed him because “me and my friend made up a
story that we can say to not place him there to make sure that he
has nothing to do with it, because that’s what we do as a gang.
We -- we come through for each other. And since it was my
house, he was telling me that there is no way that they’re going
to put you for it, and that’s just the story we made up.” He
clarified that the “friend” was Vasquez, and that Barragan went
along with the story to “protect” Vasquez.
Barragan explained that, a few days after Hernandez was
released from jail, their gang held a meeting. Some fellow gang
members had issues with the fact that Hernandez had attended
fire camp while in jail.12 At the meeting, Hernandez explained to
his fellow gang members that “he didn’t know any better.”
Barragan accepted Hernandez’s explanation and claimed the
other gang members also “went with” it, although some
“disagreed.”
12 Barragan explained that his gang objected to its
members participating in fire camp because general population
members of prison—like Hernandez—who attended fire camp
were mixed in with those who were in protective custody “for
being a snitch.”
17
The night before Hernandez was shot, Barragan claimed
Hernandez, Vasquez, Vasquez’s girlfriend, and Barragan were
“kicking it” in Barragan’s room, “drinking, smoking, doing
everything.” All four slept in Barragan’s room that night. In the
room were two guns, including a nine-millimeter that Barragan
had carried around with him before; however, Barragan denied
the gun was his, claiming “it was all of our guns,” meaning it was
a “shared gun.”
On the morning of March 5, all four were still in Barragan’s
room. Barragan went to the bathroom after he awoke; when he
returned to his room, he heard Vasquez and Hernandez arguing
about the latter’s participation in fire camp. He saw that both
Hernandez and Vasquez “had their guns out.” Vasquez had the
nine-millimeter handgun and Hernandez had a .40-caliber
handgun.
Barragan stopped the argument, asking Vasquez why he
was raising the issue when the matter had already been
addressed at the meeting. Vasquez and Hernandez both calmed
down. Hernandez went to sit down on the bed, and Vasquez “just
took into his own hands just to shoot him.” Barragan denied
shooting anyone. When asked why he should be believed after he
admitted lying during the police interview, Barragan explained:
“[Be]cause I’m going against everything I ever believed in. I’m
going against our own story that we had made up. I’m going
against everything that I’ve always been taught to in a gang”:
“not to snitch on each other, not to go against each other.”
Barragan admitted he drove Hernandez’s car after the
killing, with Vasquez in the passenger seat, and had fled from the
police when they tried to pull him over. He also admitted during
the chase that he had “passed some stop signs,” “went over the
18
speed of what” he was “supposed to be driving in the street,” and
ran through red lights.
On cross-examination, after the prosecutor asked Barragan
where Vasquez and Hernandez were when arguing, Barragan
testified, “Efrain was sitting on one bed and then Danny was
sitting on the other bed. So when they got standed up [sic] and I
calmed them down, they both just, like, sat down.” When the
prosecutor asked, “where did [Hernandez and Vasquez] take their
guns out from?” Barragan responded that “Danny had it in his
pocket, in his -- his sweater” and “Efrain had it by his
waistband.” However, when asked if both parties simultaneously
drew their weapons, Barragan stated he “wasn’t there when they
did that,” and when he returned to the room, “they were already
arguing with each other with their guns out.” When the
prosecutor asked Barragan how he knew where their guns were,
Barragan responded, “Because I just -- I just knew.”13
16. Martin Flores
Flores testified he was a “non-law-enforcement gang
expert.” He explained that recently, the California Department
13 We note that, a day after Barragan testified, the court
permitted defense counsel to re-call him for further testimony.
On cross-examination, the prosecutor’s first question was, “After
I did my cross-examination, you spent some time thinking about
your answers, right?” Barragan responded, “No, I didn’t.” The
prosecutor replied, “Oh, you didn’t. Okay. Mr. Friedman
[defense counsel] clearly did, though, right?” Defense counsel
interjected, “Wait. Hold it,” and the court ruled, “Sustained.
Sustained” to the anticipated objection. The prosecutor had only
one other question, clarifying something defense counsel had
asked in the re-opened testimony.
19
of Corrections began to “blend populations of general population
and sensitive-needs population,” resulting in “anybody who’s in
general population who happens to come from a Hispanic gang or
under the Sureno umbrella who chooses to be a part of this mixed
population automatically gets labeled as a snitch or somebody
who’s no good.” Flores added, “Fire camp did the same thing” so
“if there’s knowledge or perception knowledge that you
participated in fire camp, it labeled you as a no-good individual.”
He opined that for being a “snitch,” a gang member could face a
variety of consequences, from “a verbal threat” to “death.”
D. Closing Arguments
Before the attorneys delivered their closing arguments, the
court instructed the jury. Among the instructions delivered was:
“Nothing that the attorneys say to you is evidence. In their
opening statements and closing arguments, the attorneys discuss
the case, but their remarks are not evidence. Their questions are
not evidence. Only the witnesses’ answers are evidence. The
attorneys’ questions are significant only if they helped you to
understand the witnesses’ answers. Do not assume that
something is true just because one of the attorneys asked a
question that suggested it was true.”
1. Prosecutor’s Closing Argument
While there is no record of how long the prosecutor spoke in
his initial argument, the court ordered the jurors to return at
10:30 a.m. for closing arguments and, after the prosecutor
finished his closing argument, the jurors took their lunch break.
The written transcript of his initial closing argument spanned 40
pages. The prosecutor spent much of his argument—taking up
approximately 13 of the 40 pages in the transcript, or about one-
20
third of his argument—explaining why Barragan’s testimony was
not credible. Among other things, he asserted Barragan’s
testimony was bereft of details that he would have known if he
was the only person who knew what had happened but instead,
“all he did, if you recall, is try and hit the key points of evidence
that point towards his guilt beyond a reasonable doubt. (Sic.)
That’s all he talked about. That’s all he wanted to talk about
because he’s coming up with a story. He’s coming up with a story
after he’s heard everyone else say what they saw.” The
prosecutor claimed Barragan “made up multiple stories” and
“flip-flopped during his own examination.”
At the end of his initial closing argument, the prosecutor
said:
“But I want you to keep in mind before I close my opening
argument, because the defendant is going to -- defense attorney is
going to get up here and he’s going to say something in rebuttal
to what I’m saying. He’s typing away as I speak.
“Keep in mind that he asked entirely leading questions of
his own witnesses. Leading questions are questions where the
answer is implied in the question itself.
“He basically testified. He gave a paragraph question. At
some point it was difficult to tell what the question actually was.
And essentially just asked the defendant to agree.”
At this point, defense counsel objected in the jury’s
presence that this was “prosecutorial misconduct” and stated, “I
did not testify.”14 The court overruled the objection, stating,
14 The prosecutor made four objections on the basis that the
questions were leading, and the court sustained only one such
objection, to the question “You’ve also been known to be a liar; is
(Fn. is continued on the next page.)
21
again in the jury’s presence: “It’s argument. If you disagree[,]
you can say so in your argument.”
The prosecutor then asked the court to make a finding as to
the accusation of prosecutorial misconduct. The court responded,
“No, no. Just go on please.” The prosecutor asked again, “So no
prosecutorial misconduct?” The court replied, “No.”
The prosecutor concluded: “And he gave narrative
answers. He faked -- the defendant gave negative answers [sic],
faked his emotions, claimed he could not show tears.
“And you know why he was so desperate to give you these
stories and you know why he was led to these stories, why he was
asked these implied answers in the questions? It is because he
killed Danny and he got caught.
“I just want you to keep that in mind.”
2. Motion for Mistrial
Outside the presence of the jury, Barragan’s counsel moved
for a mistrial, arguing that throughout the prosecutor’s closing
argument, “he, on numerous occasions, denigrated my character
and my abilities and the final straw was to suggest to the jury
that I am testifying and I am in essence assisting or coaching Mr.
Barragan as to what to say.” Counsel opined it was “completely
inappropriate” and “unduly prejudiced Mr. Barragan,” resulting
“in a denial of due process.” Counsel added: “I’ve been portrayed
as being some type of a slick lawyer who is just coming up with
excuses, me personally. And that has been transferred, I believe,
by human nature over to my client. And it effects [sic] his right
to a fair trial.”
that correct?” The majority of defense counsel’s questions were
not leading questions.
22
The court denied the motion, stating it “did not find
anything in [the prosecutor]’s closing that I thought was outside
the bounds and therefore motion is denied. I don’t think any
curative instruction is called for.”
3. Defense’s Closing Argument
Barragan’s counsel asserted that Barragan’s testimony
“was his testimony . . . not my testimony.” Counsel spent most of
his argument explaining why Barragan’s testimony was credible,
and how the evidence demonstrated Vasquez shot Hernandez or
at least created reasonable doubt that Barragan shot him.
4. Prosecutor’s Rebuttal
The prosecutor reiterated the evidence pointing toward
Barragan’s guilt, and argued Barragan’s version of the shooting
was physically impossible because it did not match the trajectory
of the bullets determined by law enforcement. Specifically,
Barragan had testified Vasquez was on one bed when he shot
Hernandez (who was on the other bed), but the bullets that
struck Hernandez then struck cabinets on the north wall, which
was impossible under Barragan’s version of events “unless bullets
curve.”
E. The Jury Finds Barragan Guilty, and the Court
Sentences Him to Sixty Years to Life
The jurors deliberated for approximately three and a half
hours over three days (including three requests for testimony
23
readbacks)15 and found Barragan guilty on all counts except for
making criminal threats.
During trial, Barragan waived his right to a jury trial on
whether he had suffered a previous conviction constituting a
“strike,” and admitted he had suffered such a conviction. In
January 2025, on the murder count, the court sentenced
Barragan to 60 years to life, “which is the term of 25 years to life
doubled because of the prior, and an additional ten years
pursuant to Penal Code section 12022.5(a), for a total of 60 years
to life.”16 For the remaining counts, the court selected the “Mid
Term” of four years for each count, and ruled those sentences
were to run concurrently with the sentence for murder. Barragan
timely appealed.
15 The jury asked for a read back of the testimony of
“Deputy Perez about Ring camera”; “Aaron Lewis with exclusion
of his qualifications”; and “Amber Sage . . . specifically the
portion of the likelyhoods [sic] of DNA on each gun.” As stated
above, we omitted the summary of Perez’s testimony as it relates
to a charge on which the jury acquitted Barragan.
16 (Pen. Code, § 12022.5, subd. (a) [“Except as provided in
subdivision (b), any person who personally uses a firearm in the
commission of a felony or attempted felony shall be punished by
an additional and consecutive term of imprisonment in the state
prison for 3, 4, or 10 years, unless use of a firearm is an element
of that offense”].)
24
DISCUSSION
A. Any Prosecutorial Misconduct Does Not
Warrant Reversal
Barragan contends the prosecutor committed misconduct
by claiming that “defense counsel ‘asked entirely leading
questions’ ‘where the answer is implied in the question,’ and that
as a result counsel ‘basically testified,’ ‘and essentially just asked
the defendant to agree.’ ” Barragan admits the prosecutor’s
statement was an attack on his credibility but argues the
statement also implied his counsel was someone “who
manipulated and manufactured the evidence heard by the jury.”
1. Applicable Law
“ ‘A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
trier of fact.’ ” (People v. Ghobrial (2018) 5 Cal.5th 250, 289.) “A
prosecutor is, however, ‘ “ ‘ “given wide latitude during
argument.” ’ ” ’ ” (Ibid.) “In general, we will not find brief,
passing comments by the prosecutor to be prejudicial.” (Ibid.)
“ ‘To prevail on a claim of prosecutorial misconduct based on
remarks to the jury, the defendant must show a reasonable
likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner.’ ” (People v.
Brown (2003) 31 Cal.4th 518, 553.) “ ‘In conducting this inquiry,
we “do not lightly infer” that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s
statements.’ ” (Ibid.) “To preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and
25
specific objection and ask the trial court to admonish the jury to
disregard the improper argument.”17 (People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 305.)
It is “ ‘improper for the prosecutor to imply that defense
counsel has fabricated evidence or otherwise to portray defense
counsel as the villain in the case.’ ” (People v. Sandoval (1992) 4
Cal.4th 155, 183.) However, “the prosecutor has wide latitude in
describing the deficiencies in opposing counsel’s tactics and
factual account.” (People v. Bemore (2000) 22 Cal.4th 809, 846.)
A prosecutor’s argument that “ ‘any experienced defense attorney
can twist a little, poke a little, try to draw some speculation, try
to get you to buy something’ . . . was unobjectionable.” (People v.
Medina (1995) 11 Cal.4th 694, 759.) Nor is it misconduct when
“the prosecutor implied that defense lawyers generally use
various ‘tricks’ and ‘moves’ to try to win their cases by confusing
the witnesses.” (People v. Taylor (2001) 26 Cal.4th 1155, 1166–
1167.) Our high court found no misconduct when a prosecutor
stated that the defense counsel’s job was “to create straw men”
and “put up smoke, red herrings.” (People v. Cunningham (2001)
25 Cal.4th 926, 1002–1003 (Cunningham).)
17 Thus, to the extent Barragan argues the prosecutor
committed misconduct by saying, “He’s typing away as I speak,”
he forfeited this argument by failing to object to this statement
and failing to ask the court to admonish the jury to disregard it.
Even had he not forfeited the issue, we consider the prosecutor’s
remark nothing more than an assertion that defense counsel was
surely preparing to counter the points he had just made to the
jury, which does not constitute misconduct.
26
2. Any Error Was Not Prejudicial
It would have been improper for the prosecutor to state or
imply defense counsel had fabricated evidence. Here, by claiming
that defense counsel “basically testified,” that Barragan was “led
to these stories,” and that Barragan “was asked these implied
answers in the questions,” the prosecutor arguably engaged in
such improper conduct. “A prosecutor is held to a standard
higher than that imposed on other attorneys because of the
unique function he or she performs in representing the interests,
and in exercising the sovereign power, of the state.” (People v.
Hill (1998) 17 Cal.4th 800, 820.) Whether or not the prosecutor’s
statement constituted prosecutorial misconduct, the prosecutor
grossly mischaracterized the direct examination of Barragan, and
the prosecutor’s remarks were inconsistent with a prosecutor’s
elevated ethical obligations.
But we need not determine whether the trial court erred in
declining to find the prosecutor’s comment constituted
prosecutorial misconduct because, even had the jury understood
his remark as an accusation that defense counsel had fabricated
evidence, it would not warrant reversal. “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.” ’ ” (Cunningham,
supra, 25 Cal.4th at p. 1000.) The prosecutor’s comment was six
sentences—less than one-third of a page out of forty pages of
argument. Even had he accused defense counsel of
manufacturing Barragan’s testimony, we would not find the
comment so egregious as to infect the trial with such unfairness
as to render the conviction a denial of due process.
27
“ ‘ “But conduct by a prosecutor that does not render a
criminal trial fundamentally unfair” ’ ” can still constitute
prosecutorial misconduct under state law “ ‘ “if it involves ‘ “the
use of deceptive or reprehensible methods to attempt to persuade
either the court or the jury.” ’ ” ’ ” (Cunningham, supra, 25
Cal.4th at p. 1000.) Prosecutorial misconduct under state law is
evaluated under People v. Watson (1956) 46 Cal.2d 818. (People
v. Fernandez (2013) 216 Cal.App.4th 540, 564.) Under Watson, a
trial court’s error is harmless unless “it is reasonably probable
that a result more favorable to the appealing party would have
been reached in the absence of the error.” (Watson, at p. 836.) As
discussed below, we do not think it reasonably probable that
Barragan would have attained a more favorable result had the
prosecutor not made the remark in question.
(a) The Court Instructed the Jury Not to
Consider the Attorneys’ Questions or
Arguments as Evidence
The court expressly instructed the jury that “Nothing that
the attorneys say to you is evidence. In their opening statements
and closing arguments, the attorneys discuss the case, but their
remarks are not evidence. Their questions are not evidence.
Only the witnesses’ answers are evidence. The attorneys’
questions are significant only if they helped you to understand
the witnesses’ answers.”
When the prosecutor made his remark, and defense counsel
objected, the court overruled the objection, stating in the jury’s
presence: “It’s argument. If you disagree[,] you can say so in
your argument.” As the court instructed the jurors, nothing the
attorneys said to them was evidence. “[W]e presume a jury
28
understands and follows the court’s instructions.” (People v.
Cortes (2022) 75 Cal.App.5th 198, 205.)
(b) The Evidence Pointing Toward
Barragan’s Innocence Was Weak
At trial, Barragan testified that he witnessed an argument
between Vasquez and Hernandez that occurred in Barragan’s
room. Specifically, he testified that, after waking up the morning
of the murder, he had gone to the bathroom. When he returned,
Vasquez and Hernandez had taken out their guns and were
arguing about Hernandez’s participation in fire camp. On cross-
examination, after the prosecutor asked him from where the two
had drawn their guns, Barragan answered that “Danny had it in
his pocket, in his -- his sweater” and “Efrain had it by his
waistband.” When asked if they simultaneously drew their guns,
Barragan testified he “wasn’t there” when they took their guns
out and that by the time he returned to the room, “they were
already arguing with each other with their guns out.” When the
prosecutor asked how he knew where their guns were, Barragan
replied only, “Because I just -- I just knew.”
Barragan also testified that Vasquez was on one bed when
he shot Hernandez, who was on the other bed. But, as the
prosecutor pointed out during his rebuttal, the forensic evidence
demonstrated that the bullets that killed Hernandez could not
have come from the direction of the other bed.
Barragan’s testimony about the shooting occurring in a way
that contradicted the physical evidence, along with his testimony
about events he had just testified he did not witness, cast serious
doubt on the veracity of the remainder of his testimony.
29
(c) The Evidence Pointing Toward
Barragan’s Guilt Was Strong
Jazmine, Barragan’s niece, testified that she saw Vasquez
leave the house the morning of the murder before she heard any
gunshots. Sometime after she heard the shots, Jazmine
additionally heard her brother Matthew ask Barragan why he
would “unload a clip” while Matthew’s family was in the house.
And she testified that Barragan had asked her whether she had
seen or heard anything and, when she responded she had heard
something, asked again “in a more assertive tone” whether she
had heard something, which Jazmine understood as Barragan
wanting her to say she had not.18
Aniceto, Barragan’s father, testified that Barragan told him
Hernandez was a “rat.”19 Arellano, Barragan’s sister, added that
Barragan had asked Aniceto “to pray for him because he had to
do what he had to do because Danny was a rat.”
18 Contradicting Jazmine, Matthew testified that he saw
Vasquez leave the home after hearing gunshots. He also denied
asking Barragan why he “unload[ed] . . . a clip” and claimed he
did not see Jazmine enter the house that morning. However,
Matthew also admitted that, in an interview that he gave shortly
after the investigation began, he had told law enforcement that,
after he saw Vasquez leave, Jazmine was calling him to open the
back door for her.
19 Orosco, an expert on the gang of which Barragan was an
admitted member, testified that in gang culture, being a “rat” “is
pretty much the ultimate offense in gang culture,” and
punishment “could range from getting severely beaten by the
gang, by members of that gang that you ratted on, which would
be typically your own gang, or murdered.” Flores, Barragan’s
gang expert, agreed.
30
Lewis, a senior criminalist, testified that five fired bullets
were recovered from Barragan’s room.20 Davis, another senior
criminalist, testified that the bullets Lewis found were fired from
a certain handgun. Gonzalez, yet another senior criminalist, took
DNA swabs from that handgun. Sage, a criminalist, testified
that the trigger and guard of that handgun had DNA from three
people, and it was “approximately 33,438 times more likely if [the
DNA] originated from Manahim Barragan and two unknown
individuals than if it originated from three unknown individuals.”
There was also “limited support” for excluding both Vasquez and
Hernandez from this DNA mix, quantified as “five times more
likely” that the DNA profile “originated from three unknown
individuals than if it originated from Efrain Vasquez and two
unknown individuals” and “87 times more likely” that the DNA
profile “originated from three unknown individuals than if it
originated from [Hernandez] and two unknown individuals.”21
Munoz, a detective sergeant, found the handgun in a motel room
where Vasquez and Barragan were arrested.
Moreover, the jury asked for a readback of the testimony of
both Aaron Lewis (who testified about the trajectory of the
20 Young, a deputy medical examiner, testified Hernandez
suffered seven gunshot wounds, and that none of the bullets were
lodged in Hernandez’s body.
21 Vasquez’s DNA was likely part of a mixture of DNA on
another handgun that did not fire the bullets found in Barragan’s
room. Specifically, the DNA profile found on that gun was “750
times more likely if it originated from Efrain Vasquez and an
unknown individual than if it originated from two unknown
individuals.” There was also limited support for excluding
Barragan and Hernandez from that DNA profile.
31
bullets fired in Barragan’s room) and Amber Sage (who testified
about DNA evidence found on the gun presumably used to kill
Hernandez). This suggests that at least some of the jurors did
not dismiss Barragan’s testimony out of hand, or as something
manufactured by defense counsel, but were evaluating its
truthfulness.
In the face of the abundant evidence pointing towards
Barragan’s guilt, Barragan’s inconsistent testimony, and the
jury’s requests for testimony readbacks, we conclude that even if
the jury interpreted the prosecutor’s remark as one accusing
defense counsel of manufacturing evidence, there is no
reasonable probability that Barragan would have achieved a
more favorable outcome absent that remark. Therefore, any
error in failing to admonish the prosecutor or instruct the jury to
disregard his remark was harmless and is not grounds for
reversal.
B. The Court Did Not Err in Denying Barragan’s
Motion for a Mistrial
“We review a ruling denying a motion for mistrial for abuse
of discretion.” (People v. Ayala (2000) 24 Cal.4th 243, 283.) “ ‘[A]
motion for mistrial should be granted only when “ ‘a party’s
chances of receiving a fair trial have been irreparably
damaged.’ ” ’ ” (Id. at p. 284.)
Barragan contends that “just as [the] circumstantial
evidence inferentially supported the prosecution’s narrative of
appellant’s guilt, the prosecution’s circumstantial evidence case
equally supported the defense-proffered evidence that Efrain
Vasquez was the actual killer.” Therefore, “the prosecutor’s
inappropriate remarks accusing defense counsel of structuring
his examination of defense witnesses, and appellant in particular,
32
in a way that counsel ‘basically testified’ irreparably prejudiced
appellant’s defense . . . because the prosecutor’s remarks
denigrated defense counsel and counsel’s credibility by implying
he was the architect of a sham defense and simultaneously
attacked appellant’s credibility in a case in which appellant’s
credibility was essential to the defense theory of criminal
liability.” We disagree.
First, the evidence did not “equally” support the theory that
Barragan was the killer and the theory that Vasquez was the
killer. As summarized above, most of the evidence pointed
toward Barragan as the killer.
In any case, as discussed above, we conclude that even if
the prosecutor committed misconduct, there is no reasonable
probability that Barragan would have obtained a more favorable
verdict absent the prosecutor’s remark. Because we conclude the
prosecutor’s remark did not prejudice Barragan, we similarly
conclude it did not irreparably damage his chances of receiving a
fair trial, and thus the court did not abuse its discretion in
denying the motion for mistrial.
C. The Court Did Not Err in Excusing a
Prospective Juror
After both sides accepted a panel of 12 prospective jurors on
Tuesday, October 22, 2024, one of those prospective jurors
informed the court and counsel that it would be a hardship to
serve because he had not worked since October 4, was not
collecting unemployment, and needed to find a job soon or it
would affect his household’s ability to pay bills. He had a
telephonic job interview the next afternoon but would not get the
job if he had to be absent for two weeks to serve on a jury. While
33
the court initially declined to excuse this prospective juror, it
changed its mind the next day.
“ ‘[A] trial court has authority to excuse a person from jury
service for undue personal hardship.’ ” (People v. Tate (2010) 49
Cal.4th 635, 663.) “ ‘Exercise of that authority is reviewed for
abuse of discretion.’ ” (Ibid.) Barragan contends the court
abused its discretion in excusing this prospective juror because
“the record fails to establish that the circumstances of
Prospective Juror One made it unreasonable for him to serve.”
Specifically, the court received “no information on the nature of
job the prospective juror was considering,” “no information about
when the prospective juror expected to receive unemployment
benefits or the amount of the benefit,” and “no information about
the prospective juror’s housing and household circumstances and
obligations and the expected effect of unemployment benefits on
those financial costs.”
First, we note that Barragan’s counsel had the opportunity
to ask the prospective juror any of these questions but declined to
do so. In any case, Barragan does not explain why the “nature of
the job” the prospective juror was trying to obtain was relevant to
whether it would be an undue hardship to serve on the jury. The
relevant information was: (a) whether not getting this job would
be an undue hardship for the prospective juror; and, if so
(b) whether jury service would affect his ability to get and keep
the job. The prospective juror, who had taken an oath to
“accurately and truthfully answer [questions] under penalty of
perjury,” provided that information when he stated that not
getting a job soon would affect his household’s ability to pay bills,
that he had a telephonic interview the next day—which the court
reasonably concluded had a better chance of going well if the
34
juror could take the call in the familiar surroundings of his home
as opposed to a courtroom—and that he would not get the job if
he had to immediately be absent for two weeks.
Although the prospective juror did not provide information
about what unemployment benefits he could potentially receive
or when he could receive such benefits, Barragan provides no
authority that the court was required to delve into such specifics.
Moreover, nothing in the record indicates the prospective juror
even knew this information, as he had yet to collect
unemployment. Additionally, after stating he had not yet begun
collecting unemployment, he asserted that not getting a job soon
would “absolutely” affect his household’s ability to pay bills,
implying that unemployment benefits would be insufficient.
“A trial court abuses its discretion when its ruling ‘ “fall[s]
‘outside the bounds of reason.’ ” ’ ” (People v. Benavides (2005) 35
Cal.4th 69, 88.) On such a record, we cannot say the court acted
outside the bounds of reason in excusing the prospective juror.22
22 Because we find the court did not abuse its discretion in
excusing the prospective juror, we need not address Barragan’s
argument that the court’s purportedly “unreasonable and not
rational” decision to excuse the prospective juror violated his
right to a fair trial—we reject the premise of his argument.
35
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
36