Filed 8/18/26 P. v. Torres CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B343661
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. 24LBCF00934
v.
DANIEL TORRES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Sarah S. Sanger, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
Daniel Torres asks us to reverse his convictions due to
prosecutorial misconduct. There was neither misconduct nor
error. We affirm.
Torres faced claims for unlawfully possessing ammunition
and contempt of court. (Pen. Code, §§ 30305, subd. (a)(1), 166,
subd. (c)(1).)
Trial showed Torres had several felony convictions,
including a recent domestic violence conviction prohibiting him
from possessing firearms and ammunition. He was living at his
father’s home after his release from prison. A criminal protective
order required him to stay at least 100 yards from this property.
Several months after Torres moved in, Torres’s father
called 911 requesting police help because Torres was angry and
“out of control.” Police went to the father’s home. There they
found nine-millimeter ammunition in a pouch on a bed in a
detached bedroom. A testifying officer observed the bedroom
looked “lived in” and leftover food in the room “didn’t look rotten.”
Torres’s father confirmed at trial that Torres slept in this room.
Torres testified he did not sleep in the room; rather, it was
used as a guest room and a storage room. He maintained he was
unaware of ammunition in his father’s home.
Torres’s father had a gun and ammunition, and his brother
kept some ammunition in the garages. Police found more
ammunition in a safe in another part of the property, a safe the
brother never had seen and the father never had used.
A few months after his arrest, Torres called his nephew
from jail. The calls were recorded and played for the jury.
Torres directed his nephew to go into a garage at Torres’s
father’s home and check for a “ps5” in a black backpack. The boy
found the bag. Then, among other things, Torres told him to
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leave, suggested things he could do to “look low key,” warned
“don’t be loud mouth nothing” and ended the call by saying, “Oh
shit go put that back don’t get in the car right now [¶] . . . Let me
call my mom hide it!”
Police were at the home at the time to serve Torres’s father
with a subpoena. They observed the nephew, who appeared “very
nervous” and received several calls while they were there. The
caller was Torres. Police went to the area of the home where they
first saw the nephew and found a loaded nine-millimeter
semiautomatic firearm on the ground, but no PlayStation 5
gaming system.
At trial, defense counsel cross-examined police about the
ammunition they found at the home. Counsel established they
had not tested it for fingerprints or DNA.
Defense counsel repeatedly raised this point in closing
argument. He told the jury: “Zero forensics.” “Was there
fingerprint testing anywhere here?” “There’s some issues you’ve
had with the lack of—not just forensic, which is basic
investigation skills. I hope you’re looking back on the fact that no
fingerprinting, no DNA testing, no video, okay. The fingerprint is
pretty poor, but okay.” “[W]hy could you not just test this for
fingerprints?” “[D]on’t you think that fingerprints would have
been helpful?” “I am not understanding why these things weren’t
done.” “By the way, no testing, of course, not even a
consideration. Test the safe. Test the boxes. I am not saying
DNA. Fingerprint. Easy.” “Excuse me if I am a little outraged,
and it’s bringing up the temperature of this room. But it’s a little
outrageous to have no forensics.”
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The prosecutor returned to the issue in rebuttal. We
emphasize the portions of the argument Torres challenges on
appeal:
“The defense is correct that, yes, I do have the burden of
proving each and every element beyond a reasonable doubt. [¶]
But if the defense thinks that the evidence is so relevant that it
would somehow exonerate his client, why didn’t he test it? He has
access to it, just like the People do.” (Italics added.)
Defense counsel objected on the grounds of burden shifting.
The court responded: “Sustained—well— [¶] Ladies and
gentlemen, the People have the burden of proof on the case here.”
The prosecutor continued: “They have access to it. They
could have tested it, but they chose not to. And why? Because the
evidence shows that the defendant was in possession of that
ammunition.” (Italics added.)
Torres argues the italicized comments amounted to
misconduct that violated his constitutional rights and requires
reversal. He says the prosecutor improperly shifted the burden of
proof by arguing he had a duty to produce evidence and to prove
his innocence. He also maintains his counsel was ineffective for
failing to object to the prosecutor’s second round of comments.
We assume Torres did not forfeit any part of his appellate
challenge and therefore need not reach his claim of ineffective
assistance.
On the issue of misconduct, “ ‘prosecutorial error’ ” is the
more apt term. (People v. Potts (2019) 6 Cal.5th 1012, 1036
(Potts).) It refers to a prosecutor’s use of deceptive or
reprehensible methods to persuade the jury or to prosecutorial
conduct that renders a trial fundamentally unfair. (See People v.
Panah (2005) 35 Cal.4th 395, 462 (Panah).)
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Torres’s appeal fails because it is not error or misconduct
for the prosecution to comment on the defense’s failure to produce
DNA or fingerprint evidence in response to defense attacks on the
investigation. (Panah, supra, 35 Cal.4th at p. 464; see also
People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford)
[prosecutor may comment on the state of the evidence and the
defense’s failure to introduce material evidence or to call
anticipated witnesses]; People v. Cook (2006) 39 Cal.4th 566, 607–
608 [no burden shifting or misconduct by prosecutor who argued
to the jury that the defendant could call, and had the right to
produce, a criminalist to testify about bullets removed from the
victims]; id. at p. 607 [“Pointing out that contested physical
evidence could be retested did not shift the burden of proof”];
People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 295–296
[where defendants repeatedly attacked the veracity and
reliability of the state’s DNA testing, the prosecution was entitled
to rebut the attacks by showing defendants’ experts observed the
state’s testing and obtained DNA material to conduct their own
testing, and by commenting on the defense’s failure to call their
expert as a witness; none of this improperly shifted the burden of
proof].)
The prosecutor did not state Torres had a duty or burden to
produce evidence or to prove anything. (See Bradford, supra,
15 Cal.4th at p. 1340; cf. People v. Woods (2006) 146 Cal.App.4th
106, 113–114 [prosecutor improperly argued defense counsel was
“ ‘obligated’ ” to put on evidence].) The prosecutor repeatedly told
the jury she had the burden of proof, including immediately
before the challenged comments.
Nor was it error for the prosecutor to suggest that the
defense bypassed testing because the evidence showed the
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ammunition was in Torres’s possession. Prosecutors have a
wide-ranging right to discuss the case in closing argument, to
state fully their views as to what the evidence shows, and to urge
the conclusions they deem proper. (Panah, supra, 35 Cal.4th at
p. 463.) The prosecutor made a fair comment on the state of the
evidence implicating Torres. Recall, police found ammunition on
top of the bed where Torres slept.
Even if the challenged comments could be considered
erroneous, Torres has failed to establish error warranting
reversal because it is not reasonably likely the jury misapplied
these fleeting comments to impose any burden on him. (See
Potts, supra, 6 Cal.5th at p. 1036 [defendant must establish a
reasonable likelihood the jury construed the remarks in an
objectionable fashion].)
The challenged comments were brief. The prosecutor and
the defense repeatedly told the jury who had the burden of proof.
In the middle of the challenged comments, the trial court
admonished the jury that the prosecution bore the burden of
proof. The court also properly instructed the jury on this burden
at the beginning and end of trial.
The court’s action was sufficient to prevent prejudice. (See
People v. Fuiava (2012) 53 Cal.4th 622, 728; see also Bradford,
supra, 15 Cal.4th at p. 1337 [even if the prosecutor committed
misconduct in displaying certain evidence to the jury, the
reference to the evidence was fleeting, the trial court informed
the jury it must disregard the evidence, and this admonition
would have cured the harm].) It was clear where the burden of
proof lay.
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DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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