P. v. Solorio




Filed 1/28/11 P. v. Solorio CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. ADRIAN SOLORIO, Defendant and Appellant.

G042192 (Super. Ct. No. 06CF1702) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Francisco P. Briseño, Judge. Affirmed.
Cliff Gardner for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
A jury convicted defendant Adrian Solorio of first degree murder (Pen. Code, § 187, subd. (a); all statutory references are to the Penal Code unless otherwise noted) and participating in a criminal street gang (§ 186.22, subd. (a)). The jury further found to be true three enhancements for committing the murder (1) to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), (2) by intentionally discharging a firearm (§ 12022.53(d)), and (3) to promote criminal conduct by street gang members (§ 186.22, subd. (b)). He contends the trial court erred in excluding hearsay statement that supported his self-defense argument. He also asserts the court erred in declining to instruct on imperfect self-defense and the prosecutor committed misconduct in her closing argument. Finally, he argues he received ineffective assistance of counsel. Finding no basis to overturn the judgment, we affirm.
I
Factual and Procedural Background
In April 2005, Solorio, a member of the “Tiny Surenos” street gang from Paramount, attended a party at a house in Santa Ana with a group of friends, including his girlfriend Lilia Gutierrez and fellow Tiny Surenos gang members Adrian Vega and Enrique Vega.
Solorio arrived at the party with a .25 semi-automatic handgun. When Solorio learned only males were being searched for weapons before entering the party, he handed the gun to Gutierrez to put in her pursue. Solorio testified Adrian and Enrique also had guns that Gutierrez carried into the party.[1] Adrian and Enrique, however, denied this and Gutierrez admitted only to placing Solorio’s gun in her purse. After entering the party, Solorio retrieved his gun from Gutierrez and put it in his pocket.
Solorio and his friends went directly to the backyard, where they remained for the next couple hours drinking and dancing. Jesse Sanchez and other members of a local Santa Ana gang called “Westside Los Compadres” also attended the party and congregated in the backyard. Sanchez began “mad dogging,” or menacingly staring down, Solorio and the other Tiny Surenos members. An argument eventually ensued between Solorio and Sanchez, culminating with Solorio fatally shooting Sanchez in the chest and then fleeing the party along with Gutierrez and the other Tiny Surenos members.
Solorio admitted he shot and killed Sanchez, but asserted he acted in self‑defense after Sanchez initially fired a gunshot at Solorio but missed. The prosecution and Solorio presented conflicting evidence on whether or not Sanchez had a gun at the time Solorio shot him.
Adrian, Enrique, and Gutierrez testified for the prosecution after entering into plea agreements regarding the same charges facing Solorio. They each explained the argument started when Solorio called out “Paramount Tiny Surenos” as Los Compadres gang members walked past the Tiny Surenos gathering. Sanchez turned around, approached Solorio, and told him the Tiny Surenos gang members should not be at a party in Los Compadres’s neighborhood. Sanchez and Solorio then began exchanging insults about the other’s gang. At one point, Enrique chimed in by calling out “Tiny Surenos” and telling Sanchez not to “get that crazy” because they just sought to let Sanchez know where they were from.
Enrique testified Solorio pulled out his gun and shot Sanchez when Sanchez refused to “take back” his insults. Adrian similarly testified Solorio pulled out his gun and shot Sanchez when he continued to denigrate Solorio’s gang. Gutierrez testified that, after Sanchez made a hand gesture similar to pulling something out of his waistband, Solorio “automatically” pulled out his gun and shot Sanchez. Gutierrez, however, also testified Sanchez put his hands up as if to say “no” just before Solorio shot him. Adrian, Enrique, and Gutierrez all testified they saw neither Sanchez nor any of his Los Compadres cohorts with a gun.
The prosecution also called Jesus Cervantes, a friend of the party’s host, who testified he saw two men arguing about their gangs in the backyard. As the two men stood face-to-face, Cervantes saw one man pull a small gun from his waistband and shoot the other from just six or seven inches away. Cervantes testified the victim’s hands were down at his side when the shooter pulled out a gun and fired the weapon. Other than the shooter, Cervantes did not see the victim or anyone else at the party with a gun.
Solorio testified that, after being at the party for a couple hours, he noticed Sanchez “mad dogging” the Tiny Surenos group. He also noticed Sanchez and other Los Compadres members had guns. Solorio grew nervous and told Gutierrez and the other Tiny Surenos members they should leave the party. Before they could depart, however, Sanchez approached Solorio and Enrique and asked who they were. Solorio’s group identified themselves as Tiny Surenos gang members from Paramount. According to Solorio, Sanchez responded that “he was Big Bad Ass Wacko from Westside Los Compadres gang, and it’s his territory.”
Enrique and Sanchez began swearing at one another and insulting the other’s gang. Solorio testified both Enrique and Sanchez pulled their guns during this argument, initially pointing them at one another before lowering them as the argument continued. When another Los Compadres member and Enrique began arguing, Sanchez resumed his dispute with Solorio. The two again swore and insulted each other.
During the argument, Solorio kept an eye on the gun in Sanchez’s hand. The argument grew more heated as Sanchez waived his gun around and threatened to kill them all. When Sanchez pulled the hammer back on his gun, Solorio pulled his gun from his pocket to show he too had a gun. Solorio slowly backed up toward the gate to leave the party, stating, “I ain’t got time for this. If you want to shoot me, shoot me.” Sanchez again threatened to kill all of them, and then fired at Solorio’s head.
Solorio explained he quickly moved to the left as Sanchez fired and the bullet just missed his face. Solorio then fired back at Sanchez, striking him in the chest. After shooting Sanchez, Solorio fled the backyard.
Solorio also offered the testimony of a police criminalist, who testified tests conducted on Sanchez’s hands at the scene of the shooting revealed the presence of gunshot residue.
Brenda Mendoza, a high school student who attended the party, saw Sanchez and other members of Los Compadres showing off their weapons in the backyard. [2] She also saw two men arguing in the backyard, but walked into the house before the shooting occurred. According to Mendoza, during the argument, both men pulled guns and pointed them at one another. She heard one of the men say, “If you’re gonna shoot me, just do it.” Mendoza, however, could not identify who made the statement. Once she heard the shooting, Mendoza ran and hid in another room of the house. When she emerged from her hiding place, she saw Sanchez lying on the floor receiving CPR. She did not see any of the other Los Compadres gang members, nor did she see a gun on the floor near Sanchez.
Karina Velazquez, another high school student at the party, testified she spent most of evening with her friend, Mendoza. According to Velazquez, she saw both Enrique and Solorio arguing with Sanchez in the backyard, but did not see any guns. While the argument continued, Velazquez and Mendoza walked inside the house and did not witness the shooting. She heard the shots and ran with Mendoza to hide in another room. When she came back out, she saw Sanchez lying on the floor receiving CPR, but did not see a gun.
Solorio also offered into evidence a portion of a home video taken during the party. The video did not record the shooting, but showed Sanchez lying on the floor bleeding, with two women giving him CPR. The video records the turmoil and panic of other partygoers at the scene, with several people talking simultaneously. Solorio and the prosecution largely agreed on what was said on the video, but disagreed on one critical statement.
According to Solorio, members of Los Compadres could be heard saying “Here’s our gun. Here’s our gun. Don’t even fucking trip. Here’s our gun. Here’s our gun.” Solorio argued this statement showed members of Los Compadres took the gun Sanchez held at the time Solorio shot him, and explained why the police did not find a gun at the scene. In contrast, the prosecution asserted the statement was “he’s not gone, he’s not gone. Don’t even fucking trip, he’s not gone, he’s not gone.” The prosecution argued the speaker was exclaiming that Sanchez was still alive. The trial court played the video for the jury three times and allowed both Solorio and the prosecution to submit a transcript to the jury with their version of the statements on the video.
As noted above, the jury found Solorio guilty of first degree murder and also found to be true multiple enhancements for gang affiliation and use of a firearm. The trial court sentenced Solorio to life without possibility of parole.
II
Discussion
Solorio contends the trial court erred in excluding testimony that Mendoza and Velazquez heard someone state “did you hide the gun” and “get the gun” as Sanchez lay bleeding on the floor. He also asserts the trial court erred by refusing to instruct the jury on the lesser-included offense of manslaughter based on imperfect self-defense, and complains the prosecutor engaged in several incidents of prejudicial misconduct during her closing argument. Finally, Solorio asserts he received ineffective assistance of counsel because his trial attorney did not move to exclude Gutierrez’s, Enrique’s, and Adrian’s testimony based on their plea agreements.
A. Evidentiary Ruling Excluding Testimony
To support his claim Sanchez had a gun that other Los Compadres members removed from the scene before the police arrived, Solorio sought to introduce statements Mendoza and Velazquez made to police a few days after the shooting regarding comments they overheard while Sanchez lay bleeding on the floor.
Mendoza told investigators she heard someone say, “Did you hide his gun, did you hide it, . . . where’s it at,” and then someone responded, “It’s in a safe place.” Velazquez told police she heard someone say “get the gun, get the gun” and “hide the gun, hide the gun.” Solorio asserted these statements corroborated his version of the disputed comments on the video and constituted circumstantial evidence Sanchez had a gun at the time Solorio shot him.
The trial court conducted a pretrial hearing regarding the statements before excluding them as inadmissible hearsay. Solorio contends the trial court erred because these statements were admissible under separate exceptions to the hearsay rule permitting contemporaneous declarations explaining conduct and spontaneous declarations. Solorio also contends that, regardless of whether these statements met the technical requirements of any hearsay exception, their exclusion violated his constitutional right to a fair trial by preventing him from presenting evidence critical to his defense.
1. Contemporaneous Declarations Explaining Conduct
Solorio contends the statements Mendoza and Velazquez heard were admissible under Evidence Code section 1241 because they explained and made understandable what the Los Compadres members did and said on the video — they found and hid the gun Sanchez allegedly had when Solorio shot him.
A hearsay statement is admissible under Evidence Code section 1241 if it is (a) “offered to explain, qualify, or make understandable conduct of the declarant” and (b) “made while the declarant was engaged in such conduct.” (Evid. Code, § 1241.) As explained by the comment to Evidence Code section 1241, “where a person’s conduct or act is relevant but is equivocal or ambiguous, the statements accompanying it may be admitted to explain and make the conduct or act understandable.” A trial court’s ruling excluding evidence based on a hearsay objection is reviewed for abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 725.)
Here, Solorio failed to show an equivocal or ambiguous act by a declarant requiring an explanation. The video does not show anyone searching for or hiding a gun.[3] Similarly, Mendoza and Velazquez did not testify they observed the person who made the statement, or anyone else, searching for or hiding a gun. Indeed, Velazquez could not identify who made the statement she heard. Mendoza testified at the pretrial hearing a young man in a yellow shirt made one of the statements she heard, but she did not see him do anything. Moreover, Mendoza and Velazquez both testified they did not see any gun after they returned to the shooting scene and found Sanchez bleeding on the floor.
Consequently, Solorio failed to show the declarant engaged in conduct that required explanation, qualification, or further understanding. To the contrary, Solorio offered the statements to corroborate or clarify a disputed or unclear statement on the video. That, however, is not the purpose of the hearsay exception under Evidence Code section 1241. As noted above, the purpose of the exception is to explain the declarant’s ambiguous or equivocal conduct by introducing the declarant’s hearsay statement. Solorio failed to make the necessary connection between the declarant’s hearsay statements and any ambiguous conduct by the declarant that required explanation.
Based on the foregoing, we conclude Solorio failed to show the trial court abused its discretion by finding the proffered statements did not to qualify as contemporaneous declarations explaining conduct under Evidence Code section 1241.
2. Spontaneous Declarations
Solorio asserts the statements Mendoza and Velazquez heard also were admissible as spontaneous declarations under Evidence Code section 1240, which provides as follows: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
As the party offering these hearsay statements, Solorio bore the burden of establishing the foundation necessary to admit them as spontaneous declarations. (People v. Demetulias (2006) 39 Cal.4th 1, 26-27.) This required Solorio to show, among other things, the statements related to events the declarants personally perceived. (People v. Phillips (2000) 22 Cal.4th 226, 235 (Phillips).) The evidence must show the declarant actually witnessed the events to meet the requirement that the statements are based on the declarant’s personal knowledge. (Ungefug v. D’Ambrosia (1967) 250 Cal.App.2d 61, 68 (Ungefug).)
Direct evidence of the declarant’s percipient observation is not required, but the moving party must present sufficient evidence to support an inference the declarant personally perceived the events to which his or her statement relates; mere speculation or conjecture is not enough. (Phillips, supra, 22 Cal.4th at p. 236; Ungefug, supra, 250 Cal.App.2d at p. 68.) The declarant need not be specifically identified (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436), provided the facts “reveal with ‘some degree of persuasive force’” the declarant actually witnessed the events to which the statement relates (People v. Provencio (1989) 210 Cal.App.3d 290, 303).
Ungefug involved a fatal car accident and a hearsay statement the trial court admitted as a spontaneous declaration. An ambulance driver at the scene of the accident testified he heard someone say “the victim had been hit twice, once by another car that failed to stop.” (Ungefug, supra, 250 Cal.App.2d at p. 64.) The Court of Appeal concluded the trial court erred in admitting the statement because the party offering it failed to establish the declarant had personal knowledge of the events the statement described. No one could identify the declarant and, more importantly, no evidence showed the declarant actually saw the accident, rather than merely hearing statements about it from a participant. Indeed, no evidence existed to show anyone other than the participants witnessed the accident. (Id. at p. 68.) Similarly, in Phillips, the Supreme Court found this necessary foundation lacking when no evidence supported the conclusion the declarant actually witnessed the shooting he described, as opposed to being told about it by someone else. (Phillips, supra, 22 Cal.4th at pp. 236-237.)
Determining whether the requirements of the spontaneous declaration exception are satisfied is largely a factual question for the trial court. We review the trial court’s determination under the deferential abuse of discretion standard. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1523.)
Here, the evidence showed the declarant personally perceived Sanchez bleeding on the floor, but Solorio failed to point to any evidence showing the declarant personally perceived Sanchez with a gun at the time Solorio shot him, or at any other time during the party. Velazquez testified she heard someone say “get the gun, get the gun” and “hide the gun, hide the gun,” but she could not identify who made those statements. Mendoza told an investigating officer she heard someone in a yellow shirt say “Did you hide his gun, did you hide it, . . . where’s it at‌” She claimed a Los Compadres member made the statement, but did not indicate how she knew that. Without showing who made the statements, Solorio could not show the declarants had personal knowledge Sanchez had a gun at the party, rather than being told or merely speculating he did. Indeed, absent evidence the declarant knew of Sanchez’s gun, there was no way to know the statement referred to Sanchez’s gun, rather than to Solorio’s or someone else’s, or to conclude the declarant did not merely assume Sanchez had a gun.
Spontaneous declarations are admitted as an exception to the hearsay rule because the stress of exciting events stills the declarant’s ability to reflect and deliberate so as to provide circumstantial trustworthiness for comments relating to events the declarant personally perceived. (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588.) This circumstantial trustworthiness is lacking, however, when there is no evidence the declarant personally perceived the events to which the declarant’s statements relate and therefore these statements constitute inadmissible hearsay. Accordingly, the trial court did not abuse its discretion in finding that Solorio failed to show the statements Mendoza and Velazquez heard qualified for admission as spontaneous declarations under Evidence Code section 1240.
3. Due Process
Regardless whether the statements Mendoza and Velazquez heard satisfied the requirements of any hearsay exception, Solorio asserts the trial court’s exclusion of the statements violated his Fifth Amendment right to a fair trial and his Sixth Amendment right to present a defense. Specifically, Solorio contends the Constitution precludes the state from excluding critical defense evidence, even where the exclusion is in full conformity with state rules of evidence.
“As a general matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant’s right to present a defense.’ [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court’s ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension [citation].” (People v. Fudge (1994) 7 Cal. 4th 1075, 1102-1103.)
Solorio relies principally on Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers). There, the state court excluded a third party’s confession he committed the murder charged against the defendant because the state did not recognize declarations against penal interest as an exception to the hearsay rule. The Supreme Court concluded the state’s rules of evidence and procedure must yield to the defendant’s constitutional right to a fair trial because the confession satisfied the requirements for the declaration against penal interest hearsay exception recognized by other states, and significant additional evidence corroborated the confession. Given the clear reliability of the confession, the Supreme Court concluded its exclusion denied the defendant a fair trial. (Id. at pp. 300-303.)
Chambers and other similar cases Solorio relies on do not apply here. The statements Mendoza and Velazquez heard have none of the earmarks of reliability present in the Chambers case. As explained above, Solorio failed to point to any evidence the declarant personally knew Sanchez had a gun and no physical evidence corroborated the statements.
Moreover, the trial court gave Solorio a full and fair opportunity to present his defense. The trial court permitted Solorio to play the video showing Sanchez bleeding on the floor and to present his version of the statements heard on the video. The trial court also allowed Solorio to present evidence of gunshot residue on Sanchez’s hands. Solorio himself testified as to his recollection of the events surrounding the argument and shooting, and he questioned several witnesses on whether Sanchez had a gun.
The trial court did not deprive Solorio of a fair trial or otherwise violate any of his constitutional rights by excluding the statements heard by Mendoza and Velazquez.
B. Refusal to Instruct on Lesser-Included Offense
The trial court instructed the jury on first and second degree murder, voluntary manslaughter based on sudden quarrel or heat of passion, and justifiable homicide based on self-defense. The trial court, however, refused to instruct on the lesser-included offense of manslaughter based on imperfect self-defense because the court found the evidence did not support the instruction. Solorio contends the trial court prejudicially erred by refusing to give the instruction.
A trial court must instruct on a lesser-included offense “only if there is substantial evidence to support” the instruction. (In re Christian S. (1994) 7 Cal.4th 768, 783.) “‘“Substantial evidence” in this specific context is defined as evidence which is “sufficient to ‘deserve consideration by the jury, i.e., “evidence from which a jury composed of reasonable men could have concluded”’ that the particular facts underlying the instruction did exist.” [Citations.]’” (People v. Lemus (1988) 203 Cal.App.3d 470, 477.) “Where the theory is the defendant committed a lesser included offense the court must instruct on the lesser included offense when there is evidence from which a jury composed of reasonable persons could conclude the defendant was guilty of the lesser crime. [Citations.]” (People v. Glenn (1991) 229 Cal.App.3d 1461, 1465, overruled on another ground by People v. Blakeley (2000) 23 Cal.4th 82, 91.) We review the refusal to instruct on a lesser-included offense de novo. (People v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).)
“‘“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.” [Citation.]’” (Manriquez, supra, 37 Cal.4th at p. 581.) Hence, while self-defense requires an actual and reasonable belief in imminent danger of death or great bodily injury, imperfect self-defense requires only an actual and unreasonable belief in the same imminent danger. (Ibid.)
We conclude the trial court properly refused to give the imperfect self‑defense instruction. No combination of the evidence presented supported a finding Solorio held an actual, but unreasonable belief he was in imminent danger of death or great bodily injury. Solorio testified he did not pull his gun from his pocket until Sanchez pulled back the hammer of the gun he already held in his hand. Solorio further testified he shot Sanchez only after Sanchez shot at him and missed. If believed, Solorio’s testimony would have supported an acquittal based on self-defense. The prosecution presented numerous witnesses who testified Sanchez did not have a gun at the time of the argument and shooting. This testimony supported the jury’s rejection of Solorio’s self-defense claim and conviction for first degree murder.
These two versions are mutually exclusive. Either Solorio acted in self‑defense when Sanchez fired a handgun at him, or Solorio did not act in self-defense because Sanchez did not have a gun. Solorio’s self-defense claim was an all or nothing proposition on the evidence presented.
Solorio nonetheless contends the jury could have credited only portions of his testimony and, when combined with Gutierrez’s and Mendoza’s testimony, found Solorio actually, but unreasonably, believed Sanchez had a gun and posed an imminent threat of death or great bodily injury. Solorio points to Gutierrez’s testimony that she saw Solorio pull his gun only after Sanchez made a hand gesture similar to pulling a weapon from his waistband. Solorio points to Mendoza’s statement that she saw Sanchez with a gun and heard someone say, “I ain’t got time for this. You want to shoot me, shoot me.”
These isolated statements do not constitute substantial evidence supporting an imperfect self-defense instruction. Solorio does not point to anything in his testimony supporting the conclusion he actually, but unreasonably, thought Sanchez had a gun. To the contrary, Solorio testified Sanchez not only had a gun, but fired the gun at Solorio. As for Gutierrez’s testimony, she testified Sanchez threw his hands in the air as if to say “no” when Solorio pulled his gun and pointed it at Sanchez. At that point, Solorio had no basis to believe Sanchez had a gun and posed a threat to Solorio. Thus, Gutierrez’s testimony did not suggest Solorio shot Sanchez based on an unreasonable evaluation of a furtive hand gesture, but instead pulled the trigger only after it was clear Sanchez had nothing in his hand. Finally, as for Mendoza’s testimony, she admitted she walked away from the argument and into the house while Solorio and Sanchez continued to argue, and did not see the shooting or who said “I ain’t got time for this. You want to shoot me, shoot me.” Mendoza’s testimony may support Solorio’s self-defense claim, but it does not support an imperfect self-defense claim.
Solorio contends that People v. Viramontes (2001) 93 Cal.App.4th 1256 (Viramontes), required the imperfect self-defense instruction because the Viramontes court found the jury could rely on portions of the conflicting evidence to support an imperfect self-defense claim. As explained above, however, the evidence is insufficient to support an imperfect self-defense claim.
Finally, any conceivable error in refusing to instruct on imperfect self‑defense was harmless. As the Supreme Court explained in Manriquez: “The jury’s verdict finding defendant guilty of the first degree murder . . . implicitly rejected defendant’s version of the events, leaving no doubt the jury would have returned the same verdict had it been instructed regarding imperfect self-defense. (See People v. Lewis (2001) 25 Cal.4th 610, 646 [‘Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.’].) Accordingly, even if we were to assume the failure to instruct on imperfect self-defense violated defendant’s constitutional rights, we would find the error harmless. (See People v. Sakarias (2000) 22 Cal.4th 596, 621 [no state or federal constitutional error occurs requiring reversal for failure to instruct the jury regarding a lesser included offense, when the evidence in support of that offense ‘was, at best, extremely weak’].)” (Manriquez, supra, 37 Cal.4th at pp. 582-583.)
C. Prosecutorial Misconduct
As more fully explained below, Solorio contends certain comments the prosecutor made during closing argument amount to prejudicial misconduct requiring reversal.
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citation.] ‘In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citation.] When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘“the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’ [Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 29 (Friend); see also People v. Riggs (2008) 44 Cal.4th 248, 298.)
1. Commenting on the Failure to Offer Evidence
Solorio contends the prosecutor during closing argument improperly sought to discredit Solorio’s version of the disputed comments on the video. Solorio asserted a male voice could be heard on the video repeatedly saying, “Here’s our gun,” as Sanchez lay bleeding on the floor. According to Solorio, this statement showed Sanchez had a gun when Solorio shot him because it showed other Los Compadres members found Sanchez’s gun and took it when they fled the scene. The prosecutor urged the jury to reject Solorio’s version of the video’s disputed comments because Mendoza and Velazquez witnessed Sanchez lying on the floor bleeding, but neither of them saw a gun. The prosecutor further discredited Solorio’s version of the disputed comments by arguing no Los Compadres member could have picked up the gun because Mendoza testified they all fled the scene after the shooting.
Solorio argues the prosecutor’s comments constituted misconduct because they urged the jury to convict him for failing to present evidence supporting his theory Los Compadres members fled with Sanchez’s gun. Solorio insists this amounted to prejudicial misconduct because he attempted to offer testimony by Mendoza and Velazquez showing Los Compadres members found and hid Sanchez’s gun, but the trial court excluded that testimony based on the prosecutor’s hearsay objections.
The prosecutor’s comments, however, did not constitute misconduct because they were not based on Solorio’s failure to produce evidence to support her version. To the contrary, the prosecutor’s comments argued specific evidence presented to the jury disproved Solorio’s theory. During trial, both Velazquez and Mendoza testified that when they emerged from their hiding spot and found Sanchez on the floor bleeding, neither saw a gun near him. Mendoza also testified none of the Los Compadres members stayed to help Sanchez. During closing argument, a prosecutor is free to comment on the evidence in the same manner as any other attorney.[4] (People v. Williams (1997) 16 Cal.4th 153, 221 [“‘“It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] . . .” “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness”’ [citation], and he may ‘use appropriate epithets . . . .’”’ [Citation.]”].)
2. Vouching for Witnesses’ Credibility
Solorio also contends the prosecutor engaged in misconduct by improperly vouching for the credibility of Gutierrez, Enrique, and Adrian. We disagree. The prosecutor did not vouch for the credibility of these witnesses, but fairly responded to Solorio’s attacks on their credibility.
During closing argument, Solorio’s counsel argued Gutierrez’s, Enrique’s, and Adrian’s testimony was “bought and paid for” when they plea-bargained with the prosecution to obtain “get-out-of-jail-free cards.” Solorio’s counsel explained that, along with Solorio, these witnesses faced the possibility of life in prison without parole for the killing of Sanchez, but reached plea agreements with the prosecution allowing them to avoid any further jail time if they truthfully testified against Solorio. Solorio’s counsel strenuously argued the versions Gutierrez, Enrique, and Adrian initially told police contradicted their trial testimony because they knew that testifying Solorio shot in self‑defense would not give the prosecution an incentive to offer a reduced sentence in a plea bargain. Rather, Solorio’s counsel argued, Gutierrez, Enrique, and Adrian knew they had to change their story and place the blame for the shooting squarely on Solorio.
The prosecutor in response made the following comments in her rebuttal: “[Solorio] says the prosecution testimony has been bought and paid for. So essentially what he’s saying is, I am putting witnesses on the stand and essentially telling them to lie, commit perjury, because you know what, folks, convicting Adrian Solorio is much more important than keeping my job. [¶] Suborning perjury is a crime. And you don’t have to like the fact that these agreements were entered into. But please do not let that color your view of the testimony. If you are upset with the disposition or the resolution of the cases involving [Gutierrez], Enrique, and Adrian, blame that on me. If you think, you know, they are getting off way too easy, even though they didn’t touch that trigger, didn’t pull that trigger, then I accept that. I’ll meet you outside the courtroom when you’re done with your service, I’ll give you the name and number of my supervisor, and you can say, you know what, she doesn’t have any judgment when it comes to these kinds of matters. You blame that on me. But don’t let that color what came out of this witness stand.”
“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 971, overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Indeed, “a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case.” (People v. Boyette (2002) 29 Cal.4th 381, 433.)
Here, the prosecutor did not argue evidence outside the record to bolster the witnesses’ credibility, nor did she place the prestige of her office behind these witnesses. The prosecutor acknowledged the witnesses’ earlier statements differed from their trial testimony, and that their plea agreements allowed them to avoid the possibility of life in prison. The prosecutor emphasized she did not ask or pressure these witnesses to lie and pointed out the consequences to her if she did. These comments constituted fair and appropriate argument in response to Solorio’s contention the witnesses “were bought and paid for.”[5] (See People v. Medina (1995) 11 Cal.4th 694, 757-758 [nothing improper about prosecutor’s statement he “would not deceive” the jury when the statement related to evidence presented to the jury].)
D. Ineffective Assistance of Counsel
Finally, Solorio contends we must reverse his conviction because he received ineffective assistance of counsel. We need not delve into the standards regarding the effective assistance of counsel, however, because the factual premise for Solorio’s claim is entirely lacking.
According to Solorio, if his counsel made a motion to strike or exclude Gutierrez’s, Enrique’s, and Adrian’s testimony, the trial court would have been required to grant the motion because these witnesses understood their plea agreements with the prosecution effectively required them to testify to the prosecution’s version of the events surrounding the shooting. Consequently, Solorio concludes, the failure to make the motion amounted to ineffective assistance of counsel.
“A prosecutor may grant immunity to one jointly charged with a crime upon the condition that he or she testify fully and fairly as to the facts involved. [Citation.] When the grant of immunity places the witness under a strong compulsion to testify in a particular fashion, however, the testimony is tainted by the witness’s self‑interest and is inadmissible. [Citation.] The same infirmity may arise when a witness agrees to plead guilty to lesser offenses in exchange for specified testimony. [Citation.]” (People v. Garrison (1989) 47 Cal.3d 746, 768 (Garrison).) “‘What is improper . . . is not that what is expected from the informant’s testimony . . . will be favorable to the People’s case, but that the testimony must be confined to a predetermined formulation or rendered acceptable only if it produces a given result, that is to say, a conviction.’ [Citation.]” (Id. at p. 769.)
Here, Solorio fails to show the plea agreements required Gutierrez, Enrique, and Adrian to testify to any predetermined set of facts or to do anything other than testify truthfully. Similarly, Solorio does not assert the prosecution required Gutierrez, Enrique or Adrian to testify in any particular manner to obtain the benefits of their plea agreements. Rather, Solorio argues the plea agreements “effectively” required Gutierrez, Enrique, and Adrian to testify in a certain manner because they believed the prosecutor would not have offered them a plea bargain unless they altered the versions they initially gave investigators and squarely placed the blame for the shooting on Solorio.
Solorio’s argument fails because the compulsion to lie in Solorio’s scenario does not stem from the plea agreement — or even the prosecutor — but rather from each witness’s own desire to strike a deal and avoid any further prison time. Solorio cites no evidence the prosecutor directed Gutierrez, Enrique, or Adrian to testify in a certain manner. A belief about how the prosecutor would want them to testify affects the credibility of their testimony, not its admissibility. Solorio could and did strenuously argue their testimony lacked credibility because they testified pursuant to plea agreements, but he fails to point to any aspect of the plea agreement violating the principles discussed in Garrison.
Certainly, once the prosecutor reached a plea agreement with Gutierrez, Enrique, and Adrian, the prosecutor “expected [them] to testify to the same story at trial. It is a rare case indeed in which the prosecutor does not discuss the witness’s testimony with him beforehand and is assured that it is the truth. However, unless the bargain is expressly contingent on the witness sticking to a particular version” there is no due process or other violation requiring exclusion of the testimony. (Garrison, supra, 47 Cal.3d at p. 771.)
Solorio failed to establish any basis to exclude the testimony of his former cohorts. Accordingly, his ineffective assistance of counsel argument based on the failure to move to exclude that testimony necessarily fails.
III
Disposition
The judgment is affirmed.



ARONSON, J.

WE CONCUR:



O’LEARY, ACTING P. J.



FYBEL, J.




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