Filed 7/1/26 P. v. Escalante CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D087609
Plaintiff and Respondent,
v. (Super. Ct. No. RIF2100422)
VINCENT RAYMOND ESCALANTE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Jason Armand, Judge. Affirmed.
Robert Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Attorney
General, Arlene A. Sevidal, Assistant Attorney General, Daniel Rogers
and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and
Respondent.
In the early hours of a January morning, 18-year-old Vincent Raymond
Escalante and minor J.G. robbed Travis Van Skyock while he sat in his car in
a parking lot. During the encounter, J.G. shot Van Skyock in the back after
the victim got out of his car. Escalante fled the scene in Van Skyock’s SUV;
J.G. left in a different vehicle. Van Skyock was left alone on the pavement
and later died from his injuries.
J.G. pleaded guilty to murder in juvenile court. A jury convicted
Escalante of first degree murder (Pen. Code § 187,1 subd. (a)) under a felony
murder theory. On appeal, Escalante argues: (1) insufficient evidence
supports a finding that he was a major participant in the robbery who acted
with reckless indifference to life, as required to sustain his conviction for the
first degree robbery-murder special circumstance as a nonshooter; (2) the
court erred in allowing the investigator to testify concerning the credibility of
certain witnesses; (3) the court erred in admitting a photograph of the victim
while alive; and (4) the prosecutor committed misconduct by improperly
defining the term “abiding conviction” when explaining the burden of proof.
Finding no prejudicial error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 1:30 a.m. on January 13, 2021, Escalante arrived at a parking
lot in a car driven by Alicia Lopez. They met up with Thanya Luevano and
J.G. All four were there to do drugs and pass the time. Escalante
was looking to sell a bottle of Xanax.
Van Skyock arrived later in his SUV. Between 3:00 and 4:00 a.m.,
Escalante and J.G. got in and out of Van Skyock’s SUV, presumably so
1 All further undesignated statutory references are to the Penal Code.
2
Escalante could sell Van Skyock drugs. At one point, Lopez saw J.G with
a gun and overheard J.G. tell Luevano that Escalante was going to rob Van
Skyock. After this, J.G. rejoined Escalante in Van Skyock’s SUV.
About 10 minutes later, J.G. and Escalante walked around to the
driver’s side of the SUV and J.G. shot Van Skyock in his torso. Escalante
immediately drove Van Skyock’s SUV out of the parking lot, leaving Van
Skyock on the pavement. J.G. got into Luevano’s car and both Luevano and
Lopez drove out of the parking lot, as Van Skyock called out for help.
Surveillance footage captured much of the activity.
When the police arrived 30 minutes later, Van Skyock was conscious
but unable to say much. He told them “Stomper”— later determined to be a
nickname for J.G.—shot him. Officers found a knife belonging to Van Skyock
near the crime scene.
Lopez and Escalante met up at a dirt field, where Escalante smashed a
cell phone and wiped down fingerprints on the SUV before abandoning it.
They then met up with J.G. and Luevano outside Lopez’s apartment.
According to Lopez, J.G. said Escalante “chickened out,” handed him the gun
and told him “you do it,” so he shot the victim. Escalante told Lopez he had
the victim’s wallet and claimed it only had one dollar. Escalante went to the
mountains to burn the wallet.
After a traffic stop on an unrelated matter, Lopez informed the police
she had information about a shooting. Investigator Gary Bowen interviewed
Lopez. Lopez initially claimed she arrived alone at the parking lot, and
Escalante shot Van Skyock, but she changed her story when investigator
Bowen showed her photographs from the surveillance video.
During an interview with investigator Bowen, Escalante admitted he
was present during the shooting and identified himself in a still photograph
3
from the parking lot surveillance video. He denied attempting to murder
Van Skyock, but admitted to carjacking him.2 He claimed he and J.G. were
both armed with a gun that night, but he got rid of his gun. Investigators
later searched Escalante’s phone and found a video he made the day after the
shooting in which he sang, “Homie, chillin’ up here in Lake Arrowhead. …
Someone’s son died but nobody cried cuz they don’t give a fuck… . [T]hey
didn’t know what to do but I still did what I did. … [I] do as I please.”
A jury convicted Escalante of first degree murder (§ 187, subd. (a)) and
found true the special circumstances of murder during the commission of a
robbery (§ 190.2, subd. (a)(17)(A)) and a carjacking (§ 190.2, subd. (a)(17)(L)).
The jury also found true the allegation that Escalante was a principal in the
murder, and another principal was armed with a firearm (§ 12022, subd.
(a)(1)). The trial court struck the punishment for the armed principal
allegation and sentenced Escalante to life in prison without parole for first
degree murder with special circumstances.
DISCUSSION
A. Sufficient evidence supports the jury’s verdict that Escalante
was a major participant and acted with reckless indifference
to human life.
Escalante contends there was insufficient evidence that he was a major
participant in the underlying robbery and carjacking and that he acted with
reckless indifference to human life so as to sustain his conviction for first
degree special circumstance murder as a nonshooter.
When considering a challenge to the sufficiency of the evidence to
support a conviction, “ ‘we review the record “in the light most favorable to
2 At the time of this interview, the victim was still alive, so investigator
Bowen identified the crime as “attempt[ed] murder.”
4
the judgment” to determine whether it contains substantial evidence—that
is, “evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ ” (People v. Bradley (2021) 65 Cal.App.5th 1022, 1028–1029.) The
same standard applies to reviewing the sufficiency of the evidence to sustain
a true finding on a special circumstance allegation. (People v. Edwards
(2013) 57 Cal.4th 658, 715.)
Under the felony murder rule, someone who participates in an
enumerated felony (including robbery and carjacking) in which a death occurs
may be convicted of first degree murder if they were a major participant in
the underlying felony and acted with reckless indifference to human life, as
described in section 190.2, subdivision (d). (§ 189 (e)(1)–(3).) Section 190.2,
subdivision (d), in turn, provides that, “[i]n the case of first degree felony
murder, ‘every person, not the actual killer, who, with reckless indifference
to human life and as a major participant’ aids or abets the crime may be
convicted of special circumstance murder.” (People v. Banks (2015) 61
Cal.4th 788, 798 (Banks), quoting § 190.2, subd. (d).) This statute has “both
a special actus reus requirement, major participation in the crime, and a
specific mens rea requirement, reckless indifference to human life.” (Banks,
at p. 798, fn. omitted.) The requirements for felony murder liability under
section 189, subdivision (e)(3), are the same as special circumstance liability
under section 190.2, subdivision (d). (People v. Montanez (2023) 91
Cal.App.5th 245, 265.)
To assist in determining whether a defendant was a major participant,
Banks identified a nonexclusive list of factors that includes: “What role did
the defendant have in planning the criminal enterprise that led to one or
more deaths? What role did the defendant have in supplying or using lethal
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weapons? What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past experience or conduct
of the other participants? Was the defendant present at the scene of the
killing, in a position to facilitate or prevent the actual murder, and did his or
her own actions or inactions play a particular role in the death?[] What did
the defendant do after lethal force was used?” (Banks, supra, 61 Cal.4th at
p. 803, fn. omitted.) No one factor is necessary or alone sufficient. (Ibid.)
As Banks did with respect to the major participant element, People v.
Clark (2016) 63 Cal.4th 522 (Clark) provides a nonexclusive list of factors
bearing on whether the defendant acted with reckless indifference. Factors
to consider include: (1) duration of the crime (2) knowledge of weapons used
in the crime, and their actual use and number; (3) presence at the crime and
opportunities to stop the killing or aid the victim; (4) knowledge of the actual
killer’s propensity to kill; and (5) efforts to minimize the possibility of
violence during the crime. (Id., at pp. 618–622.)
The requirements for being a major participant and exhibiting
reckless indifference to human life “ ‘significantly overlap … , for the
greater the defendant’s participation in the felony murder, the more likely
[the defendant] acted with reckless indifference to human life.’ ” (Clark,
supra, 63 Cal.4th at pp. 614–615.)
6
Substantial evidence supports the finding that Escalante was a major
participant in the robbery and carjacking.3 The evidence demonstrates
Escalante was the principal figure who planned the robbery and carjacking.
Minutes before the shooting, J.G. announced that Escalante was going to rob
the victim. Escalante’s swift flight in the victim’s SUV, rather than fleeing in
one of his friend’s cars, supports an inference that he planned the carjacking.
We must accept reasonable inferences drawn from the circumstantial
evidence. (See People v. Maury (2003) 30 Cal.4th 342, 396.)
Not only did Escalante plan the underlying robbery and carjacking,
but there was evidence that he chose a firearm as the means of forcing the
victim to turn over his property and then increased the risk of violence by
relinquishing control of the weapon and giving it to J.G. After J.G. shot the
victim, Escalante expressed no surprise or concern. Rather, he left him lying
on the pavement without rendering aid and drove off with his SUV.
Weighing the factors, we conclude a reasonable trier of fact could find beyond
a reasonable doubt that Escalante had significant involvement in the
underlying criminal activities known to carry a grave risk of death, and
was thus a “major participant.” (Banks, supra, 61 Cal.4th at p. 803.)
3 The Attorney General contends that Escalante forfeited his challenge
to the jury’s actus reus/major participant findings because he confined his
argument to the mens rea issue of reckless disregard. We nonetheless
address the sufficiency of the evidence as to both elements because the
requirements for being a major participant and exhibiting a reckless
indifference to human life “ ‘significantly overlap.’ ” (Clark, supra, 63 Cal.4th
at pp. 614–615.) Critically, factors demonstrating Escalante’s role as a major
participant are also “relevant to the analysis of whether he acted with
reckless indifference.” (In re Loza (2017) 10 Cal.App.5th 38, 52.)
7
Even if he was a major participant in the carjacking and robbery,
Escalante argues the Clark factors do not support a finding that he acted
with reckless disregard for human life. We disagree.
First, Escalante argues the “duration of the violent contact”—a matter
of seconds—weighs against a finding of reckless indifference. The relevant
duration, however, is not the few seconds it took to rob, shoot and carjack
the victim, but the entire encounter leading up to the crimes. (Clark, supra,
63 Cal.4th at p. 620 [considering “the duration of the interaction between
victims and perpetrators” (italics added)].) Escalante was with the victim in
his SUV off and on for an hour, creating a “ ‘greater window of opportunity
for violence.’ ” (Ibid.)
Second, he argues that he did not use a gun during the robbery, and
there is no evidence that he knew J.G. would shoot the victim or that J.G.
had a propensity for violence. This argument, however, sidesteps the
evidence that Escalante brought a loaded gun to the crime scene, passed it
to J.G., and encouraged J.G. to use it. “A defendant’s use of a firearm, even if
the defendant does not kill the victim … can be significant to the analysis of
reckless indifference to human life.” (Clark, supra, 63 Cal.4th at p. 618.)
Third, relying on In re Scoggins (2020) 9 Cal.5th 667, 683, Escalante
contends he minimized the risk of violence because the robbery was planned
to occur in an open area with witnesses present. We find Scoggins readily
distinguishable. In contrast to this case, the underlying crime in Scoggins
involved an unarmed beating and robbery. Indeed, the Supreme Court
recognized that “ ‘the need to minimize the risk of violence when planning
an unarmed beating is less pressing than the need to minimize the risk of
violence when planning an armed robbery.’ ” (Id. at p. 683.) Similarly, the
unarmed assault in Scoggins occurred in “a public parking lot during
8
the daytime, when the possible presence of witnesses might reasonably be
thought to keep his accomplices within the bounds of the plan.” (Ibid., italics
added.) Here, the robbery was planned for the middle of the night when the
only likely witnesses were Escalante’s associates.
Finally, Escalante was present during all phases of the robbery,
shooting, and carjacking. (People v. Garcia (2020) 46 Cal.App.5th 123, 148
[“Presence at the scene of the murder is a particularly important aspect of
the reckless indifference inquiry”].) Despite his proximity to the victim,
Escalante argues that J.G.’s unexpected and sudden use of lethal force
deprived him of the opportunity to prevent the violence or aid the victim.
This argument ignores other record evidence including testimony that
Escalante facilitated the robbery by providing the gun, instructed J.G. to
use it, and left the victim without rendering aid.
We are unpersuaded by Escalante’s argument that he was necessarily
less culpable because he was 18 years old at the time of the shooting. The
court properly instructed the jurors to consider his age. Nevertheless, “every
18 year old understands bullet wounds require attention. The fact of youth
cannot overwhelm all other factors.” (People v. Mitchell (2022) 81
Cal.App.5th 575, 595.) Additionally, Escalante’s postcrime conduct, including
destroying evidence and directing Lopez to assist with wiping down the
stolen car, showed a level of criminal maturity and awareness of his
culpability. Finally, Escalante posted a video of himself a day after the
shooting singing “[s]omeone’s son died … but I still did what I did,” which
the jury could reasonably interpret as bragging about his involvement in
the victim’s death. Of course, anticipating a future risk and bragging about
something that has already happened are two different things. Although
we acknowledge that youthful offenders, in particular, frequently say things
9
without thinking, Escalante’s willingness to take credit for the victim’s death
fully supports the finding of reckless indifference.
Viewing the record in the light most favorable to the jury’s verdict as
we must, we conclude sufficient evidence supports a finding that Escalante
was a major participant in the robbery/carjacking and acted in reckless
disregard of human life.
B. The trial court did not prejudicially err by admitting the
investigator’s testimony about the credibility of Alicia Lopez
and Vincent Escalante.
Escalante argues the trial court erred in admitting investigator
Bowen’s testimony that in the interview he conducted with Lopez, she
initially lied but later became truthful. Escalante also contends the court
erred by admitting Bowen’s testimony that Escalante lied to him. We review
a trial court’s ruling to admit evidence for abuse of discretion. (People v.
Fayed (2020) 9 Cal.5th 147, 189.)4
4 Escalante also briefly raises a federal due process argument. The
People assert that because Escalante did not object to this testimony on
federal constitutional grounds, he forfeited the argument. (People v.
Anderson (1990) 52 Cal.3d 453, 478.) We agree. Notwithstanding any
forfeiture, however, we reject Escalante’s due process argument because, as
explained below, any error is harmless. Escalante further argues that, to the
extent we find he has forfeited his due process argument or any other portion
of his claim regarding the introduction of Bowen’s testimony, it is the result
of ineffective assistance of counsel for failing to lodge an appropriate objection
to the testimony. Because we find any error in the admission of Bowen’s
testimony harmless beyond a reasonable doubt, Escalante cannot show he
was prejudiced by his counsel’s failure to object to the testimony on any
ground. (Strickland v. Washington (1984) 466 U.S. 668, 694, 700 [defendant
must show a reasonable probability that, but for counsel’s unprofessional
errors the outcome would have been different and a failure to show sufficient
prejudice defeats an ineffectiveness claim].)
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1. Additional Facts
In reviewing the surveillance video, investigator Bowen created a
timeline that included events and participants from the crime scene. Bowen
then interviewed Lopez and Escalante. The jury heard audio clips of the
interviews. Initially, Lopez told Bowen she arrived alone in the parking lot
and Escalante was the shooter. Once Bowen showed her photos from the
surveillance video, Lopez changed her story. Bowen testified that he believed
Lopez lied at the beginning of the interview because he had “some
knowledge” and “some bits of evidence,” and Lopez’s story did not “make
sense.” As the interview progressed, Lopez’s statements corroborated the
evidence Bowen had in his possession, “like the video.” “[F]or the most part,”
Bowen believed he got “truthful information” from Lopez. Bowen used his
timeline to help determine which information provided by Lopez was
corroborated.
Bowen later interviewed Escalante. Escalante provided information
that was both consistent and inconsistent with the evidence Bowen already
had, becoming “more consistent” as the interview progressed. Some of
Escalante’s statements corroborated Lopez’s statements, yet other
statements were inconsistent. In particular, both Lopez and Escalante
admitted: (1) a shooting occurred in the parking lot; (2) they both arrived in
Lopez’s car and J.G. arrived in Luevano’s car; (3) Escalante went to sell the
victim some pills; (4) Escalante drove off in the victim’s car; and (5) Escalante
went to the mountains after the shooting.
11
2. Analysis
“[G]enerally[,] a lay witness may not express an opinion about the
veracity of another person’s statement because the statement’s veracity is for
the jury to decide.” (People v. Houston (2012) 54 Cal.4th 1186, 1221; see also
People v. Melton (1988) 44 Cal.3d 713, 744 (Melton) [“Lay opinion about the
veracity of particular statements by another is inadmissible on that issue”].)
For instance, a testifying officer generally cannot testify about the credibility
of the defendant or a witness. (People v. Smith (1989) 214 Cal.App.3d 904,
915.)
The record does not establish that Bowen was an expert on judging
credibility, or on the truthfulness of witnesses he interviewed in the
investigation. Thus, he was not permitted to express an opinion about the
veracity of the witnesses. (Melton, supra, 44 Cal.3d at p. 744.) Here,
however, Bowen did not testify as to his opinion on Escalante’s veracity.
Instead, he described the similarities between Escalante’s and Lopez’s
statements and identified events that they both corroborated. This testimony
was not inadmissible merely because it described the “twists and turns in a
long interrogation” and mirrored the interviews heard by the jury, including
Lopez’s own admissions about lying and changing her account. (People v.
Stitely (2005) 35 Cal.4th 514, 546.) But to the extent Bowen testified that
Lopez initially lied but later became more truthful, we conclude this was
inadmissible opinion evidence. Insofar as the trial court admitted Bowen’s
testimony as an assessment of Lopez’s credibility, that ruling was erroneous.
(See Melton, at p. 745.) We next turn to whether such error was harmless.
Under federal standards, an error is prejudicial and requires reversal
unless we can conclude beyond a reasonable doubt that it was harmless.
(Chapman v. California (1967) 386 U.S. 18, 24.) An error is harmless beyond
12
a reasonable doubt if there is no “ ‘reasonable possibility that the [error]
complained of might have contributed to the conviction.’ ” (Ibid., quoting
Fahy v. Connecticut (1963) 375 U.S. 85, 86–87.) Reversal is also required
under the California harmless error standard if there is a “reasonably
probable” chance of a more favorable result absent the error. (People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson).)
We find the erroneous admission of Bowen’s opinion testimony about
Lopez was harmless under either standard. First, ample evidence existed
from which a jury could reach its own conclusions about Lopez’s veracity.
The jurors reviewed the same surveillance video and heard Bowen’s recorded
interviews with Lopez and Escalante that formed the basis for his opinions.
Thus, the jury could determine for itself which of Lopez’s statements were
inconsistent or uncorroborated by Escalante’s statements. The jury also
heard extensive testimony from Lopez, including her admission that she “lied
a lot” during her interview and obvious inconsistencies about whether J.G.
retrieved a gun from Luevano’s car. Defense counsel argued that Lopez’s
inconsistencies and prior criminality made her not credible and highlighted
these issues throughout cross-examination, enabling the jury to evaluate
Lopez’s credibility independently.
Second, Bowen did not vouch for Lopez’s credibility. He testified he
obtained truthful information from her “for the most part” and acknowledged
that some of her statements were consistent with the evidence while others
were not. This qualified assessment does not constitute a blanket
endorsement of her credibility.
Third, the trial court repeatedly instructed the jury that it alone was to
judge a witness’s credibility and, given that Lopez was a possible accomplice,
it should also consider whether her testimony was corroborated. We presume
13
the jury followed those instructions. (People v. Sedano (2023) 88 Cal.App.5th
474, 485 (Sedano).)
Finally, the evidence against Escalante was significant, including the
surveillance video capturing his interactions with the victim and his flight
from the scene in the victim’s SUV. Considering the record as a whole, we
conclude that any error in admitting the opinion evidence was harmless
under either a state or federal standard.
Escalante suggests that Bowen improperly testified he relied on “other
evidence,” including extrajudicial testimony from Luevano, to support his
opinions about Lopez’s and Escalante’s credibility. (Cf. People v. Linton
(2013) 56 Cal.4th 1146, 1207 [“ ‘[I]t is [prosecutorial] misconduct “to suggest
that evidence available to the government, but not before the jury,
corroborates the testimony of a witness” ’ ”]). But having reviewed the
testimony, we are convinced the jury would not have understood Bowen to
be referring to secret inadmissible evidence that corroborated his opinion.
Rather, he sufficiently identified the evidence upon which he relied at
various points in his testimony. He repeatedly referred to the surveillance
video and body camera footage, which he used to create a timeline of the
events and to identify the participants. By comparing Lopez’s and
Escalante’s statements, he identified which events were corroborated. While
he agreed Luevano’s interview was helpful, the court sustained objections to
additional questions on that topic, and neither Bowen nor the prosecutor
insinuated they had other evidence from Luevano. When taken in context,
his testimony did not imply he relied on extrajudicial evidence.
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C. The trial court did not prejudicially err in admitting a
photograph of the victim while he was alive.
Escalante contends the court erred when it admitted a photograph
taken of the victim while he was still alive. He argues the photograph was
not relevant, and its probative value was outweighed by the prejudicially
sympathetic effect it had on the jury.
1. Additional Facts
The prosecution moved in limine to introduce a photograph of the
victim, which depicted him from the chest up with a disposable face
mask pulled down under his chin. The prosecution sought to introduce the
photograph to show the victim was once a “healthy adult male” and not just
a “dead piece of meat lying on the ground,” and to establish the identification
of the deceased. The defense argued no issue existed as to whether the victim
was alive prior to the shooting. The court tentatively ruled it would admit
the photograph of the victim if the prosecutor did not introduce the body
camera video of the victim’s dying declaration from the scene of the crime.
At trial, the defense, not the prosecution, introduced the body camera video of
the victim, and the court admitted the life photo. Bowen identified the victim
in the photograph, and the prosecutor displayed the photograph during
summation.
2. Applicable Law
The admission of photographs of the victim lies within the discretion
of the trial court; such discretion will not be disturbed unless the probative
value of the photograph is clearly outweighed by their prejudicial effect.
(Watson, supra, 46 Cal.2d at p. 837) “ ‘ “ ‘To determine whether there was
an abuse of discretion, we address two factors: (1) whether the photographs
15
were relevant, and (2) whether the trial court abused its discretion in finding
that the probative value of each photograph outweighed its prejudicial
effect.’ ” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 43.)
The Supreme Court has “repeatedly cautioned against the admission
of photographs of murder victims while alive unless the prosecution can
establish the relevance of such items. [Citations.] Otherwise, there is a risk
that the photograph will merely generate sympathy for the victims.” (People
v. DeSantis (1992) 2 Cal.4th 1198, 1230 (DeSantis).) “To comply with this
stricture, the trial judge should carefully consider the actual relevance of
photos of murder victims while alive, and, if such evidence is indeed
admissible, state the grounds on the record, thereafter exercising vigilance
to restrain counsel from the use of the photos for a purpose beyond that for
which they were admitted.” (People v. Winn (2020) 44 Cal.App.5th 859, 866–
867.)
3. Analysis
We conclude the court did not abuse its discretion in admitting the
photograph. At a hearing on the issue, the court questioned the probative
value of the photograph, given the existence of the body camera video
showing the victim alive being questioned by first responders. The
prosecutor argued the body camera video depicted the victim as a “dying
piece of meat.” While the court’s conclusion that the “probative value is what
it is” is ambiguous, the record shows the court found the photo had some
relevance to show the victim was alive.
Escalante argues that the jury saw other videos of the victim, thus
eliminating the need for a photograph. He points to People v. Bonin (1989)
47 Cal.3d 808, 848–849 and People v. Poggi (1988) 45 Cal.3d 306, 323, which
found error in the admission of photographs of the victim when the defendant
16
offered to stipulate to the facts the prosecution intended to establish because
such an offer renders the photographs irrelevant and inadmissible. We find
these cases distinguishable. Unlike Bonin and Poggi, defense counsel in this
case did not offer to stipulate to this point; thus, at least technically, the issue
remained a matter in dispute.
Even if the probative value was minimal in light of other evidence
that the victim was alive, we find that admission of the photograph had no
prejudicial effect. (See Watson, supra, 46 Cal.2d at pp. 835, 837.) Here,
the court observed the photograph was “innocuous.” It concluded that any
sympathy generated from it would be insignificant compared to the body
camera footage of the victim lying in agony on the cold surface of the parking
lot, and the 911 call where he was going in and out of consciousness “fearful
of his impending demise.” Also, the defense introduced a “booking”
photograph of the victim in his opening statement; in contrast, the
prosecution’s photograph depicted the victim in a neutral setting that
was not likely to evoke an “emotional bias.” (People v. Virgil (2011) 51
Cal.4th. 1210, 1248.) On this record, Escalante has not shown how the
admission of this single photograph prejudiced him. (See DeSantis, supra,
2 Cal.4th at p. 1231.)
Finally, Escalante’s claim that admission of the photograph violated
the federal constitution is forfeited because he lodged no objections before the
court on these grounds. (Evid. Code, § 353; see People v. Boyette (2002) 29
Cal.4th 381, 424 [holding federal constitutional claims to evidence forfeited
where defendant never asserted those specific grounds in trial court].)
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D. Even if the prosecutor erred in attempting to explain the concept
of an “abiding conviction,” the error was not prejudicial.
Escalante argues the prosecutor committed misconduct during closing
argument by improperly defining the burden of proof and appealing to the
jury’s sympathy for the victim. He claims this error deprived him of due
process under the state and federal constitutions.5 When the misconduct
claim is raised in the first instance in the trial court, we review the ruling for
an abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 792–793.
1. Additional Facts
In her closing argument, the prosecutor explained the term “abiding
conviction”—as referenced in the jury instructions defining proof beyond a
reasonable doubt—as “something that sticks with you over time.” She
provided an example that, the day after reaching a guilty verdict “you think
to yourself, I gave justice to this poor victim and I’m glad I did that. That’s
an abiding conviction.” As another example, the prosecutor described jurors,
two weeks after the trial, feeling “proud” because the victim “didn’t deserve”
to be murdered, and that’s “why you convicted him.” Defense counsel
objected on the ground that the prosecutor was misstating the burden of
proof. The prosecutor next provided an example of an abiding conviction as
one where, two years from now “you say, I’m proud I gave justice to that
victim.” Outside the presence of the jury, defense counsel later objected to
the prosecutor’s display of a “sympathetic” photograph of the victim during
the prosecutor’s closing argument.
2. Applicable Law
5 Escalante also claimed a due process violation of the Sixth Amendment
but did not present argument in support of that claim. Thus, the argument is
forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
18
A prosecutor’s misconduct violates the federal constitution and requires
reversal when it infects the trial with such unfairness as to deny due process.
(People v. Tully (2012) 54 Cal.4th 952, 1009 (Tully).) “ ‘ “[T]he misconduct
must be ‘of sufficient significance to result in the denial of the defendant’s
right to a fair trial.’ ” ’ ” (Ibid.) “Advocates are given significant leeway in
discussing the legal and factual merits of a case during argument. [Citation.]
However, ‘it is improper for the prosecutor to misstate the law … and
particularly to attempt to absolve the prosecution from its … obligation
to overcome reasonable doubt on all elements.’ ” (People v. Centeno (2014)
60 Cal.4th 659, 666 (Centeno).)
Under state law, even if a prosecutor’s misconduct does not render a
criminal trial fundamentally unfair, it is error if the conduct involves the use
of deceptive or reprehensible methods in attempting to persuade the trier of
fact. (Tully, supra, 54 Cal.4th at pp. 1009–1010.) Accordingly, we review
such claims of prosecutorial misconduct for prejudice. (See People v. Mendoza
(2007) 42 Cal.4th 686, 703.) “When attacking the prosecutor’s remarks to the
jury, the defendant must show that, ‘[i]n the context of the whole argument
and instructions’ [citation], there was ‘a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
In evaluating a claim of prosecutorial misconduct, we examine the
questioned conduct in the context of the whole argument and the instructions
to the jury given by the trial court (People v. Lucas (1995) 12 Cal.4th 415,
475) and presume that “ ‘the jury treated the 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.)
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3. Analysis
In general, a prosecutor cannot redefine “reasonable doubt” or “an
abiding conviction” in such a way to lessen the People’s burden. (See People
v. Nguyen (1995) 40 Cal.App.4th 28, 36.) Similarly, it is error to invite the
jury to evaluate the strength of the evidence through the eyes of the victim
or based on sympathy for what the victim suffered. (See People v. Amezcua
and Flores (2019) 6 Cal.5th 886, 919.) By focusing on providing “justice” to
the “victim” rather than on the certainty of the jury’s factual findings, the
prosecutor may have crossed the line between permissible advocacy and
impermissible reformulation of the governing legal standard.
But even if we assume the prosecutor erred in her closing argument
by mischaracterizing the nature of an “abiding conviction,” Escalante has
not demonstrated prejudice. The prosecutor’s first comment, referring to
“abiding conviction” as “something that sticks with you over time,” was
unobjectionable. When defense counsel objected to the additional
explanations that were offered, the court reminded the jury to follow the
instructions on the law as provided by the court. Those instructions correctly
explained that an “abiding conviction” “means a lasting firm belief.”
The court further instructed the jury that if an attorney’s comments on
the law conflicted with the court’s instructions, the jury must follow the
court’s instructions. We presume the jury followed these instructions.
(Sedano, supra, 88 Cal.App.5th at p. 485.)
Escalante also did not establish that the prosecutor’s comments
in tandem with the use of the victim’s photograph was prejudicial. As
discussed, the innocuous photograph was unlikely to generate any
appreciable sympathy from the jury greater than that of the body camera
video footage of the victim suffering from a gunshot wound “fearful of his
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impending demise.” And Escalante does not challenge the admission of that
video on appeal.
We therefore conclude that Escalante did not establish any prejudicial
error, let alone a fundamentally unfair trial that denied him his due process
rights.
E. Cumulative Error
Although we have identified or assumed two instances of nonprejudicial
error, even taken cumulatively we do not believe they affected the jury’s
verdict. (See People v. Martinez (2003) 31 Cal.4th 673, 704.)
DISPOSITION
The judgment is affirmed.
DATO, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
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