Filed 8/25/26 P. v. Pinal CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H052766
(Santa Clara County
Plaintiff and Respondent, Super. Ct. Nos. C1918364, 2101618)
v.
ANTONIO DOMINGUEZ PINAL,
Defendant and Appellant.
A jury convicted defendant Antonio Dominguez Pinal of first degree murder and
reckless driving while evading a peace officer. The jury also found true an allegation in
the murder count that Pinal personally and intentionally discharged a firearm, and the
trial court found that Pinal sustained a prior strike and a prior serious felony conviction.
The trial court sentenced Pinal to 75 years to life consecutive to four years.
Pinal raises four issues on appeal: (1) the trial court erred by refusing to instruct
the jury on imperfect self-defense; (2) the prosecutor committed misconduct by appealing
to the jurors’ sympathy and inflaming their passions; (3) the cumulative prejudice of the
first two issues requires reversal of his murder conviction; and (4) the trial court abused
its discretion in denying the defense’s Romero1 motion to dismiss the prior strike at
sentencing.
We will affirm the judgment for the reasons explained below.
1
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
I. FACTUAL AND PROCEDURAL BACKGROUND2
The prosecution charged Pinal by amended information with one count of murder
(Pen. Code, § 187, subd. (a))3 and one count of evading a peace officer in willful or
wanton disregard for safety (Veh. Code, § 2800.2, subd. (a)). With regard to the murder
count, the amended information alleged Pinal personally and intentionally discharged a
firearm, proximately causing the victim’s death. (§ 12022.53, subd. (d).) The
prosecution also alleged various aggravating circumstances regarding both counts, and it
alleged Pinal suffered a prior strike conviction (§ 1170.12, subd. (b)(1)) and a prior
serious felony conviction (§ 667, subd. (a)).
Pinal drove a black Lincoln Navigator with worn paint and other distinctive
characteristics through a shopping center parking lot at night. Jesus Garcia rode with
Pinal. As Pinal was turning left in the parking lot, Pinal saw a low-riding truck passing
through the parking lot intersection in the opposite direction and complimented the driver
concerning the truck. At that point, Pinal stopped in the intersection for several seconds,
argued with the driver of a red Nissan behind the low-riding truck, and started to get out
of his vehicle. As the Nissan pulled away, Pinal got back into his vehicle and pulled
forward, heading the opposite direction from the Nissan.
Pinal parked the vehicle and Garcia got out, going to an ATM in the shopping
center. Pinal remained in the parked Lincoln. As Pinal was sitting in the vehicle, the red
Nissan pulled in near Pinal, stopping across more than one parking space and blocking
these spaces.
While Garcia used the ATM, a witness saw Pinal get out of his vehicle and
approach the Nissan, pounding on the car and demanding that the driver lower the
window. Witnesses reported hearing arguing between the Nissan driver and Pinal, with
2
We provide an overview of the facts to provide context. We further describe the
record evidence relevant to the first and fourth challenges in our analysis, post.
3
Unspecified statutory references are to the Penal Code.
2
Pinal saying words to the effect of: “I am going to kill you, motherfucker.” At that
point, the Nissan’s window was “cracked open” and the Nissan’s driver remained in the
driver’s seat.
Witnesses stated they then heard a sound consistent with a gunshot. One witness
testified that she saw Pinal pull a gun out and shoot the Nissan driver, with the gun tilted
so it would reach inside the Nissan’s partially closed window. Pinal then returned to the
Lincoln and sped away while the Nissan moved forward, crashing into a parked car.4 As
the Nissan’s driver sat in the car, witnesses went to aid the driver, later identified as Jose
Castaneda Sandoval. Sandoval died from a gunshot wound to the chest. Autopsy
findings were consistent with a person outside the Nissan’s driver’s window shooting
Sandoval while Sandoval was sitting in the driver’s seat.
Police found a spent projectile inside the Nissan’s rear passenger’s door panel.
Police found a beer bottle partly full in the Nissan’s center console, and a black knife in
the gap between the driver’s door and the driver’s seat. The knife had a four-inch blade
and was designed to fold out. The knife was found in the folded position.
Less than three weeks after the shooting, police stopped Pinal for not wearing a
seat belt. Pinal was driving a different vehicle from the Lincoln he drove during the
shooting. As officers approached the vehicle, Pinal took off, driving “at a high rate of
speed.” During the ensuing chase, Pinal drove on the wrong side of the road, ran a red
light, and swerved in and out of traffic before officers ceased pursuit due to safety
concerns.
During the investigation into the shooting, police spotted and tracked Pinal’s
Lincoln, which was observed with license plates that were twice improperly switched.
Cell tower information showed Pinal’s phone was located at the general area of the
4
One witness testified that Pinal did not return to the Lincoln but instead ran by
her vehicle toward an area with trash dumpsters. However, she admitted that it was
possible the person she saw run in this area was not the shooter.
3
shopping center at the time of the shooting. Phone records showed Pinal was in frequent
contact with both his girlfriend and Garcia leading up to the shooting, but Pinal’s phone
stopped communicating with them shortly after the shooting. Video evidence showed
Pinal’s Lincoln enter the shopping center and stop in the parking lot intersection. The
Lincoln’s driver started to get out of his car as the red Nissan passed in the other
direction, before the driver got back in the car and the Lincoln proceeded toward the
ATM. Video then showed Garcia approach and use the ATM while looking back toward
Pinal’s vehicle, then run away from the scene. While video showed the red Nissan
approach the area of Pinal’s vehicle and stop, it did not show the shooting itself.
Pinal’s parole officer from an earlier conviction twice asked Pinal to come talk to
her soon after the shooting. Both times he did not show up, which was unusual behavior
for him.
After Pinal’s arrest, he repeatedly called his girlfriend to have her switch title to
the Lincoln to another person. Pinal’s girlfriend filed paperwork transferring the Lincoln
to her brother, backdating the paperwork with an effective date of two days before the
shooting.
Garcia testified at trial, though he stated he did not want to appear in court. Garcia
testified that while he was at the ATM, he heard a sound like fireworks so he took off
running. He testified that he did not remember many details, including whether Pinal and
Sandoval were in an argument, whether he heard any commotion before he heard the
fireworks sound, whether he saw the red Nissan crash into a parked car, and whether he
talked to his father about the shooting. The prosecution then called Garcia’s father. He
testified that the morning after the shooting, Garcia seemed afraid and told him about the
shooting. Garcia’s father testified that Garcia told him that an argument occurred after
Pinal made the comment about the low-riding truck, Garcia saw the argument that led to
the shooting, a shooting occurred, and after the shooting Pinal told Garcia not to say
4
anything. Garcia’s father also testified that Garcia told him that right before the shooting,
he heard Pinal say: “ ‘You have something for me. I have something for you as well.’ ”
The defense presented no evidence at trial, and Pinal did not testify.
The jury convicted Pinal of both offenses and found the firearm use enhancement
for the murder count true. The trial court found the prior strike allegation, the prior
serious felony allegation, and the alleged aggravating circumstances true.
The defense moved to dismiss the prior strike at sentencing, but the trial court
denied the motion. The court sentenced Pinal to 75 years to life on the murder count and
a consecutive term of four years (the middle term of two years, doubled for the prior
strike) on the evasion count. The trial court also imposed a consecutive term of
16 months in a second case that was joined with the instant case for sentencing.5 In that
second case, Pinal pleaded no contest to one count of being an accessory after the fact
(§ 32) and admitted a prior strike. The trial court’s denial of Pinal’s Romero motion also
extended to the prior strike in this second case.
Pinal timely appealed.
II. DISCUSSION
A. Denial of Defense Request for Imperfect Self-Defense Instruction
Pinal argues the trial court erred in refusing to instruct on imperfect self-defense,
depriving him of an instruction on his theory of defense. He asserts that substantial
evidence existed to support an imperfect self-defense instruction, and that he was
5
The superior court case number involving the murder and evasion counts is case
No. C1918364. The other case for which Pinal was sentenced is case No. C2101618.
Pinal’s original notice of appeal listed both case numbers, but Pinal then filed an
amended notice of appeal deleting case No. C2101618 and listing only case
No. C1918364. This court granted Pinal’s request for relief from default based on a
declaration that Pinal’s trial counsel intended to appeal from both superior court case
numbers. Pinal then filed an amended notice of appeal referencing both superior court
case numbers, and he filed supplemental briefing asserting that the trial court abused its
discretion in denying his Romero motion concerning case No. C2101618. We have
considered the supplemental briefing concerning case No. C2101618.
5
prejudiced by the lack of such instruction. The Attorney General contends that
substantial evidence of imperfect self-defense was not presented, and thus the trial court
was not required to give such an instruction. We conclude the court did not err in
declining to give an imperfect self-defense instruction.
1. Factual background
In pretrial submissions, neither party requested a self-defense instruction.
However, toward the end of the trial, the defense requested four instructions: CALCRIM
No. 505 (Justifiable Homicide: Self-Defense or Defense of Another); CALCRIM
No. 522 (Provocation: Effect on Degree of Murder); CALCRIM No. 570 (Voluntary
Manslaughter: Heat of Passion—Lesser Included Offense); and CALCRIM No. 571
(Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of Another—
Lesser Included Offense). Defense counsel argued that after the initial argument in the
parking lot intersection, Sandoval decided to drive to the area where Pinal’s vehicle was
and continue the argument. Defense counsel asserted that the presence of alcohol and the
knife in the Nissan “go[es] to show that Mr. Sandoval wasn’t innocent in this interaction”
and that Sandoval “indeed caused the interaction by returning to the area.”
The trial court initially stated that “in an abundance of caution” it would give the
requested instructions, though the court stated that its decision was “a bit of a stretch.”
However, after the prosecutor re-raised this issue via e-mail, arguing substantial evidence
did not exist to warrant the four requested instructions (particularly the imperfect self-
defense instruction, CALCRIM No. 571), the trial court e-mailed the parties that it
reconsidered its position and decided not to instruct on self-defense—including imperfect
self-defense—as “giving these instructions would simply invite confusion.”
At the end of the next day of proceedings, after both sides rested their cases, the
trial court finalized jury instructions with the parties. The court stated it had decided not
to give self-defense instructions because “in retrospect, when I read the cases there’s got
to be some substantial evidence that there is a self-defense.” The court noted that “the
6
closest thing” indicating a self-defense situation was the statement attributed to Pinal that
“ ‘You have something for me. I have something for you as well.’ ” However, the court
stated that Sandoval’s window was “80 to 90 percent rolled up” and no evidence
indicated Sandoval took out the knife, and thus substantial evidence did not demonstrate
Pinal believed he needed to defend himself.
The trial court did not instruct on self-defense, including imperfect self-defense. It
did provide the instructions the defense requested on provocation and heat of passion
(CALCRIM Nos. 522, 570).
2. Legal principles and standard of review
“Under the doctrine of imperfect self-defense, when the trier of fact finds that a
defendant killed another person because the defendant actually but unreasonably believed
he was in imminent danger of death or great bodily injury, the defendant is deemed to
have acted without malice and thus can be convicted of no crime greater than voluntary
manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) “[T]he doctrine is narrow.
It requires without exception that the defendant must have had an actual belief in the
need for self-defense. . . . Fear of future harm—no matter how great the fear and no
matter how great the likelihood of the harm—will not suffice. The defendant’s fear must
be of imminent danger to life or great bodily injury. ‘ “[T]he peril must appear to the
defendant as immediate and present and not prospective or even in the near future. An
imminent peril is one that, from appearances, must be instantly dealt with.” . . .’ Put
simply, the trier of fact must find an actual fear of an imminent harm. Without this
finding, imperfect self-defense is no defense.” (Id. at p. 783.)
“[I]mperfect self-defense is not an affirmative defense, but a description of one
type of voluntary manslaughter. Thus the trial court must instruct on this doctrine,
whether or not instructions are requested by counsel, whenever there is evidence
substantial enough to merit consideration by the jury that under this doctrine the
defendant is guilty of voluntary manslaughter.” (People v. Manriquez (2005) 37 Cal.4th
7
547, 581 (Manriquez).) “In a murder case, trial courts are obligated to instruct the jury
on defenses supported by substantial evidence that could lead to conviction of the lesser
included offense of voluntary manslaughter, even where the defendant objects, or is not,
as a matter of trial strategy, relying on such a defense.” (People v. Moye (2009)
47 Cal.4th 537, 541.) “Substantial evidence is not ‘ “ ‘any evidence, no matter how
weak,’ ” ’ but evidence from which a reasonable jury could conclude that the defendant
was guilty only of manslaughter. [Citation.]” (People v. Valenzuela (2011)
199 Cal.App.4th 1214, 1228.)6
We employ a de novo standard of review to determine whether an imperfect self-
defense instruction should have been given. (Manriquez, supra, 37 Cal.4th at p. 584.)
3. Analysis
Substantial evidence did not support a claim of imperfect self-defense, and thus
the trial court did not err by declining to give such an instruction.
At trial, Pinal’s counsel cited four pieces of evidence to argue that substantial
evidence warranted an imperfect self-defense instruction: (1) Sandoval’s action in
driving to the area where Pinal was after the earlier argument in the parking lot
6
In his opening brief, Pinal quoted People v. Petznick (2003) 114 Cal.App.4th
663, 677 in part as follows: “In determining whether there is such substantial evidence,
the trial court must not evaluate the credibility of the witnesses, which is a question for
the jury. The corollary to this rule is that a lesser included offense cannot be refused
based a decision [sic] that the evidence in support of the instruction may not ‘inspire
belief.’ The credibility decision the jury’s [sic] exclusive province.” This quotation does
not appear in Petznick, and this court is not aware of any appellate opinion containing the
quoted language. This court asked Pinal’s appellate counsel to explain how this
inaccurate quotation was included in Pinal’s opening brief. In response, Pinal’s counsel
provided a declaration stating that this quotation is a paraphrase from statements in
People v. Flannel (1979) 25 Cal.3d 668, 684. Counsel stated the error was not caused by
the use of generative artificial intelligence. We nonetheless remind counsel that “no
brief, pleading, motion, or any other paper filed in any court should contain any
citations—whether provided by generative AI or any other source—that the attorney
responsible for submitting the pleading has not personally read and verified.” (Noland v.
Land of the Free, L.P. (2025) 114 Cal.App.5th 426, 431.)
8
intersection; (2) Sandoval’s consumption of alcohol; (3) the knife found in the Nissan;
and (4) the statement attributed to Pinal that: “ ‘You have something for me. I have
something for you as well.’ ” None of these pieces of evidence—either individually or in
combination—provides substantial evidence that Pinal had an actual belief in the need for
self-defense from imminent danger to life or great bodily injury.
The jury could reasonably conclude that Sandoval’s act of driving up to the area of
Pinal following the earlier argument demonstrated a desire to continue the argument.
However, the desire to continue the argument did not provide evidence that Pinal actually
believed he faced a threat of imminent harm, particularly where Sandoval remained in his
car with the window partially up. No evidence was presented that Sandoval took any
physical action toward Pinal to cause Pinal to have an actual belief in the need for self-
defense from imminent danger to life or great bodily injury. Instead, the evidence
demonstrated that Pinal was the aggressor: he approached Sandoval’s car, pounded on
the car, demanded Sandoval lower the window, threatened to kill Sandoval, and then
reached through the window opening to shoot Sandoval while Sandoval remained seated
in the car. The mere fact that Sandoval drove to Pinal’s area following an argument does
not provide substantial evidence that Pinal actually believed he was in imminent danger
of death or great bodily injury. (See People v. Thomas (2023) 14 Cal.5th 327, 386-387
(Thomas) [evidence of “ ‘heated argument’ ” between defendant and victim did not
warrant self-defense instruction]; Manriquez, supra, 37 Cal.4th at pp. 552, 581-582 [no
error in not providing imperfect self-defense instruction where evidence indicated victim
and defendant argued before the fatal shooting].)
While a partially full beer bottle was found in the Nissan’s center console and an
autopsy revealed Sandoval’s blood alcohol level was 0.115 percent, no evidence was
presented that Pinal was aware of Sandoval’s intoxication. Pinal could not have an actual
fear of imminent harm based on a fact of which he was unaware. Pinal also did not argue
to the trial court how Sandoval’s consumption of alcohol presented a perceived threat,
9
and on appeal, Pinal does not assert that Sandoval’s consumption of alcohol supported an
imperfect self-defense instruction.
As to the knife found in the Nissan, it was found in “the gap between the driver
door and the driver’s seat” in the folded position. No evidence was presented that
Sandoval brandished it or that Pinal even saw it. Even if Pinal saw the knife and believed
Sandoval could use it, Sandoval was sitting in the car with the window partially closed
and no evidence was presented that Pinal believed Sandoval could have reached him with
the knife. (See People v. Stitely (2005) 35 Cal.4th 514, 552 [even assuming a defendant’s
statement that the victim brought a knife to the murder scene constitutes substantial
evidence that the victim “possessed and displayed a knife the night she was killed, there
is no substantial evidence of ‘actual fear of an imminent harm’ sufficient to support either
imperfect or perfect self-defense instructions”]; Thomas, supra, 14 Cal.5th at p. 387 [no
substantial evidence of imperfect self-defense where victim carried a loaded firearm in
his car but no evidence was presented that the victim reached for the gun or defendant
knew of the gun’s presence].)
Finally, no substantial evidence of an actual fear of imminent harm is presented by
the statement: “You have something for me. I have something for you as well.” Even
assuming Pinal was referring to the knife as the “something” Sandoval had, the presence
of the knife did not present substantial evidence of imminent harm, for the reasons
discussed above. No evidence was presented that the “something” was anything else that
Pinal could have believed would present a threat to him.
Pinal argues on appeal that the trial court relied on three invalid reasons in denying
an imperfect self-defense instruction. First, he asserts that the trial court relied on Pinal’s
failure to testify, which was improper because substantial evidence of imperfect self-
defense may be present without a defendant’s testimony. Second, Pinal contends that the
trial court erred in stating “there was so little evidence” of self-defense and that the
evidence presented was “not enough” to warrant the instruction, which he asserts
10
misapplied the substantial evidence standard. Finally, he argues that the trial court
erroneously concluded the instruction would be inconsistent with the theory presented in
the defense’s opening statement that Pinal was not the shooter.
However, in our de novo review of this issue, “we review the ruling, not the
court’s reasoning and, if the ruling was correct on any ground, we affirm.” (People v.
Geier (2007) 41 Cal.4th 555, 582, overruled on another ground as recognized in People v.
Houston (2012) 54 Cal.4th 1186, 1220.) Because substantial evidence did not exist to
support an imperfect self-defense instruction, we affirm.
In addition, Pinal has not demonstrated any error in the trial court’s rationale for
denying an imperfect self-defense instruction. The trial court did not state it declined to
give the instruction just because Pinal did not testify. Instead, the court stated that
without some testimony—by Pinal or any other witness—that Pinal believed he was at
risk of imminent harm, an imperfect self-defense was not warranted. “Substantial
evidence of a defendant’s state of mind, including an ‘honest but unreasonable belief in
the necessity to defend against imminent peril to life’ [citation], may be present without
defendant testimony.” (People v. De Leon (1992) 10 Cal.App.4th 815, 824.) However,
substantial evidence of imperfect self-defense does not exist where no testimony as to the
defendant’s state of mind exists. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 82
[no substantial evidence of self-defense where “[n]o witness to the incident . . . stated
they believed deadly force was necessary to protect them]; People v. Simon (2016)
1 Cal.5th 98, 134 [defendant “did not testify and there is no evidence he ever told anyone
that he had acted out of fear”].)
As to the trial court’s statements regarding the sufficiency of the evidence to
support an instruction, the trial court repeatedly stated the correct substantial evidence
standard. The trial court did not usurp the role of the jury by weighing the evidence;
rather, it properly concluded that “there’s got to be some substantial evidence that there is
a self-defense.”
11
Finally, while Pinal is correct that a defense theory that conflicts with imperfect
self-defense does not prohibit the trial court from instructing on this defense (People v.
Cruz (2008) 44 Cal.4th 636, 664), the trial court’s comments do not indicate it denied the
requested instruction on this basis. Rather, the trial court observed that an imperfect self-
defense instruction would invite confusion for the jury when “there was so little evidence
of any kind of self-defense.”
“[T]he court need not give the requested instruction where supporting evidence is
minimal and insubstantial.” (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) Here, the
evidence of imperfect self-defense was not even minimal and insubstantial. Instead, no
evidence was presented that Pinal actually believed he was at risk of imminent danger of
death or great bodily injury. Thus, the trial court did not err by declining to give an
imperfect self-defense instruction.
B. Prosecutorial Misconduct
Pinal further argues that the prosecutor erred by making “an improper appeal to
the jurors’ sympathy.” Specifically, he cites two statements the prosecutor made in his
closing argument. First, the prosecutor stated that Sandoval “made a choice” in driving
to where Pinal was to finish the argument, but that in making that choice, Sandoval “did
not forfeit his life” and this choice “does not deserve to end his life.” Second, the
prosecutor stated toward the end of his closing argument that Sandoval’s actions “did not
forfeit his life or justify even remotely the use of a gun,” and that Sandoval “did not
deserve to die.” Pinal acknowledges that his trial counsel did not object to these
statements, but he asks that this court excuse forfeiture, both because his claim is “a pure
question of law based on undisputed facts,” and to send a “clear signal” to prosecutors
that this type of argument is impermissible.
The Attorney General responds that this claim is forfeited by the lack of objection,
and the statements did not amount to prosecutorial misconduct.
12
We conclude Pinal forfeited his claim of prosecutorial misconduct, and even
assuming forfeiture does not apply, the comments did not constitute misconduct.
1. Legal principles and standard of review
“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 generally [citation], and particularly to attempt to absolve the
prosecution from its . . . obligation to overcome reasonable doubt on all elements
[citation].’ [Citations.] To establish such error, bad faith on the prosecutor’s part is not
required. [Citation.] ‘[T]he term prosecutorial “misconduct” 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.’ [Citation.]” (People v.
Centeno (2014) 60 Cal.4th 659, 666-667.) “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. [Citations.] 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. [Citation.]’
[Citations.]” (Id. at p. 667.)
2. Analysis
Pinal did not object to the comments he now asserts constituted prosecutorial
misconduct, and thus he has forfeited this issue. “It is well settled that making a timely
and specific objection at trial, and requesting the jury be admonished (if jury is not
waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for
appeal.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
“The lack of a timely objection and request for admonition will be excused only if
either would have been futile or if an admonition would not have cured the harm.”
(People v. Powell (2018) 6 Cal.5th 136, 171 (Powell).) Pinal does not argue that either of
13
these circumstances applies here, and nothing in the record would support such an
assertion. Pinal argues that forfeiture should not apply because this case presents a pure
question of law, but excusal of forfeiture on this basis is not appropriate, because “[s]uch
an exception would allow a defendant to invalidate an entire trial based on a claim of
prosecutorial misconduct that could have been easily remedied by a timely objection and
an admonition.” (People v. Potts (2019) 6 Cal.5th 1012, 1036.) As to Pinal’s argument
that forfeiture should be excused to send a message that such comments are
impermissible, we see nothing improper about such comments, as discussed further
below. Thus, Pinal has forfeited this challenge on appeal.
Even assuming forfeiture does not apply, in the context of the prosecutor’s
response to defense counsel’s anticipated argument, the cited remarks do not constitute
prosecutorial misconduct. The defense strategy ultimately employed was to assert that
Sandoval provoked Pinal into committing the shooting. At the defense’s request, the trial
court instructed the jury before closing arguments that a killing that would otherwise be
murder would be reduced to voluntary manslaughter if: (1) Pinal was provoked; (2) as a
result, he acted rashly and under the influence of intense emotion that obscured his
reasoning or judgment; and (3) the provocation would have caused a person of average
disposition to act rashly and without due deliberation. In his closing argument, Pinal’s
counsel discussed this instruction, citing actions by Sandoval that counsel asserted
constituted provocation. The prosecutor’s comments anticipated this argument and
asserted that Sandoval’s actions did not justify the shooting.
Pinal asserts that by arguing Sandoval did not deserve to die, the prosecutor
committed misconduct by appealing to the jury’s sympathy or passions for the victim.
“We have repeatedly stated that it is ‘ “improper to make arguments to the jury that give
it the impression that ‘emotion may reign over reason,’ and to present ‘irrelevant
information or inflammatory rhetoric that diverts the jury’s attention from its proper role,
or invites an irrational, purely subjective response.’ ” ’ [Citation.] More specifically, we
14
have said that ‘[i]n the guilt phase of the trial, it is misconduct to appeal to the jury to
view the crime through the eyes of the victim.’ [Citations.]” (People v. Sanchez (2019)
7 Cal.5th 14, 66.) The prosecutor’s specific comment that Sandoval did not deserve to
die could have been better phrased to more directly comment on the question of
provocation without injecting an emotional component into this case. However, on this
record, we conclude the prosecutor did not impermissibly invite the jury to view the
crime through Sandoval’s eyes and did not present irrelevant information or
inflammatory rhetoric. Considered in context, the prosecutor’s statements were part of
his argument that Sandoval’s actions did not amount to provocation that would lessen
Pinal’s culpability, comments justified by the defense specifically asserted by Pinal.
Finally, even assuming these two comments were improper, they did not amount
to prosecutorial misconduct that would have been misconstrued by the jury or that
prejudiced Pinal. Both comments were brief and came in the context of an otherwise
lengthy and unobjectionable closing argument. These two comments did not
“ ‘ “ ‘ infect[] the trial with such unfairness as to make the conviction a denial of due
process,’ ” ’ ” or “ ‘ “be ‘of such significance to result in the denial of the defendant’s
right to a fair trial.’ [Citation.]” ’ ” (Powell, supra, 6 Cal.5th at p. 172.) Any purported
error by the prosecutor did not rise to the level of prejudicial prosecutorial misconduct.
C. Cumulative Effect of Errors
Pinal argues that the cumulative prejudicial effect of the errors asserted above
require reversal of the murder conviction. “The premise behind the cumulative error
doctrine is that, while a number of errors may be harmless taken individually, their
cumulative effect requires reversal.” (People v. Mani (2022) 74 Cal.App.5th 343, 378.)
Because we have found no error in either of the two issues discussed above, Pinal’s
cumulative prejudice argument fails. Even assuming error concerning the issues raised
above, Pinal was not deprived of a fair trial. Any assumed errors during Pinal’s trial
15
“were harmless, whether considered individually or collectively. [Pinal] was entitled to a
fair trial but not a perfect one.” (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
D. Denial of Romero Motion
Finally, Pinal argues that the trial court abused its discretion in denying his
Romero motion to dismiss the prior strike at sentencing. The Attorney General responds
that no abuse of discretion occurred. We discern no abuse of discretion in the trial
court’s ruling.
1. Factual background
At trial, the court found Pinal had been convicted of a strike offense, assault with a
deadly weapon with a gang enhancement (§§ 245, subd. (a)(1), 186.22, subd. (b)(1)(C)).
The defense filed a brief in advance of the combined sentencing hearing requesting that
the court dismiss this prior strike under Romero, supra, 13 Cal.4th 497. At sentencing,
defense counsel argued that Pinal acted “out of great provocation or heat of passion,” and
the balance of the mitigating and aggravating factors justified granting the Romero
motion. The prosecutor asserted that the murder was “a brazen offense committed with
no reasonable provocation,” and thus the Romero motion should be denied.
The trial court found the prior strike was a violent offense and both of the instant
cases also involved violence. The court stated that “in the homicide there was almost no
provocation . . . when [Pinal] attacked an unarmed person and killed him.” The court
thus denied the Romero motion.
2. Legal principles and standard of review
“The purpose of the Three Strikes law is ‘to ensure longer prison sentences and
greater punishment for those who commit a felony and have been previously convicted of
serious and/or violent felony offenses.’ [Citation.]” (In re Young (2004) 32 Cal.4th 900,
909.) However, under the “Three Strikes” law, a trial court “may exercise the power to
dismiss granted in section 1385”—which allows a trial court to dismiss an action in
16
furtherance of justice—to dismiss a prior strike at sentencing. (Romero, supra,
13 Cal.4th at p. 504.) “In ruling on a Romero motion, the court must consider whether
‘the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.’ [Citation.]” (People v. Salazar (2023) 15 Cal.5th 416, 428.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation
under section 1385 is subject to review for abuse of discretion.” (People v. Carmony
(2004) 33 Cal.4th 367, 375 (Carmony).) “In reviewing for abuse of discretion, we are
guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision
will not be reversed merely because reasonable people might disagree. ‘An appellate
tribunal is neither authorized nor warranted in substituting its judgment for the judgment
of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” (Id. at pp. 376-377.)
3. Analysis
Pinal raises two points in support of his argument that the sentencing court abused
its discretion in denying his Romero motion. His opening brief first argues that the
sentence imposed with the prior strike means that he “will be 100 years old before he
would be eligible to be released,” and that “[t]his analysis shows that the predominant
factor in the trial court’s decision was ensuring the longest possible sentence based on
[Pinal’s] remote prior convictions.” Second, he argues that the aggravating and
mitigating factors weigh in favor of dismissing the prior strike. In a supplemental brief
17
addressing the other case addressed at the same sentencing hearing, Pinal raises similar
arguments concerning the denial of his Romero motion.
Pinal’s arguments do not demonstrate an abuse of discretion. As to Pinal’s first
argument, he cites solely to People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop) to
support his argument that the sentencing court “fail[ed] to evaluate the state’s interest in
keeping [him] incarcerated until his death and long after the age at which he would be
unlikely to re-offend.” In Bishop, the reviewing court upheld the trial court’s exercise of
discretion in dismissing two of the defendant’s prior strikes, rejecting the People’s
challenge that the defendant’s lengthy criminal record brought him within the spirit of the
Three Strikes law. (Bishop, supra, at pp. 1250-1251.) The court noted that the number
of prior convictions could operate as an aggravating factor, but “the nature and timing of
a defendant’s crimes may also operate as mitigation, such as in this case where the
present crime is a petty theft and the prior violent offenses are remote.” (Id. at p. 1251.)
The court stated: “The length of sentence to be imposed also presents an open-ended
inquiry because, when considered in conjunction with the defendant’s age, it presents the
trial court with an opportunity to evaluate factors such as how long the state maintains an
interest in keeping the defendant as a public charge and after what period of incarceration
he is no longer likely to offend again.” (Ibid.)
Bishop does not support the conclusion that the trial court abused its discretion.
Pinal has a lengthy criminal history, but nothing in the appellate record demonstrates the
trial court considered this history to the exclusion of other relevant factors, including at
what point Pinal would be no longer likely to offend again. Bishop does not stand for the
proposition that imposition of a lengthy sentence extending past the age where a
defendant is likely to re-offend, standing alone, demonstrates an abuse of discretion.
As to Pinal’s second argument, the parties both discussed the aggravating and
mitigating circumstances of Pinal’s cases, and the trial court’s brief comments do not
demonstrate it failed to consider these circumstances. “In the absence of evidence to the
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contrary, we presume that the trial court considered all of the relevant factors and
properly applied the law.” (People v. Brugman (2021) 62 Cal.App.5th 608, 638.) Pinal
was on parole for another offense when he committed the instant crimes. Pinal murdered
a person, and the trial court rejected Pinal’s argument at sentencing that Sandoval
provoked him into committing the murder. Pinal’s criminal history and the nature of the
prior strike also weighed in favor of denying the Romero motion. Pinal’s brief on appeal
cites the applicable aggravating and mitigating circumstances in this matter, but he does
not explain how the trial court’s weighing of these factors demonstrates its decision was
“so irrational or arbitrary that no reasonable person could agree with it.” (Carmony,
supra, 33 Cal.4th at p. 377.) Thus, the trial court did not abuse its discretion in denying
Pinal’s Romero motion.
III. DISPOSITION
The judgment is affirmed.
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_______________________________
Greenwood, P. J.
WE CONCUR:
______________________________________
Bromberg, J.
______________________________________
Chung, J.*
H052766 - The People v. Pinal
_____________
* Judge of the Santa Clara County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.