Filed 6/3/21 P. v. Mariscal CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS MARISCAL,

Defendant and Appellant.

 H047243

 (Santa Clara County

 Super. Ct. No. C1891605)

Defendant Carlos Mariscal was found guilty by a jury of one count of 

second-degree robbery (Pen. Code, § 212.5)1and was sentenced to three years in state 

prison.

On appeal, Mariscal argues that a number of the prosecutor’s remarks during final 

argument amounted to prosecutorial misconduct and his trial counsel was constitutionally 

ineffective for failing to object to them. As explained below, we conclude there was no 

misconduct and thus no duty to object, but even if there were, Mariscal was not 

prejudiced. Therefore, we will affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Background

On April 18, 2019, Mariscal was charged by information with second-degree 

robbery (§ 212.5, subd. (c)). The information further alleged that Mariscal personally 

1 Unspecified statutory references are to the Penal Code.
2

used a deadly weapon (a knife) during the robbery (§ 12022, subd. (b)(1)) and that he had 

suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12). 

On June 12, 2019, a jury found Mariscal guilty of second-degree robbery, but 

found not true the allegation that he personally used a knife in committing the offense. In 

a bifurcated proceeding, the trial court found true the allegation that Mariscal had a prior 

strike conviction. 

After granting Mariscal’s Romero2 motion, the trial court sentenced him to the 

middle term of three years in prison with total credits of 187 days, consisting of 163 days 

custody credits plus 24 days of credits pursuant to section 2933.1. The trial court 

imposed a restitution fine of $300 (§ 1202.4, subd. (b)), with an identical parole 

revocation fine imposed but suspended (§ 1202.45), a $40 court operations assessment 

(§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a criminal justice 

administration fee of $129.75 payable to the City of San Jose (Gov. Code, §§ 29550, 

29550.1, 29550.2), and a $10 crime prevention fund fine plus $31 penalty assessment 

(§ 1202.5). Pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 the court stayed 

all fines, fees, and assessments based on the prison sentence and Mariscal’s 

unemployment. 

Mariscal timely appealed.

B. Evidence Presented at Trial

1. The Prosecution Case

Pedro E.3testified that, on March 29, 2018, he was practicing soccer with his 

coworker, Oscar F., on the field at an elementary school in San Jose. Pedro E. and 

Oscar F., who worked for a landscaping company, had finished work for the day.4

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

3 We refer to the victim and the other eyewitness by their first names and last 

initials in order to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b)(4), (10).)

4 The landscaping company was owned by Oscar F.’s father, but Pedro E. testified 

that everyone pooled their money to purchase equipment and supplies for the business. 
3

Pedro E. parked his car, which contained “a lawnmower, blower, a weedwhacker,” and 

other landscaping tools and equipment, in the parking lot by the soccer field. The 

lawnmower did not fit fully inside the trunk, so Pedro E. secured it with a rope. As a 

result, the trunk was half open. 

As they practiced, Oscar F. noticed a person, later identified as Mariscal, riding a 

bicycle in circles around the parking lot and he thought it was suspicious. Pedro E. 

walked over to talk to Mariscal. Mariscal told him he was “just checking out [a] girl”

who was at the soccer field. Pedro E. used the restroom, then returned to the field. 

Oscar F. then informed Pedro E. that Mariscal was coming back on foot. Pedro E. 

could see that Mariscal had left his bicycle outside a nearby fence and was walking back 

to the parking lot toward Pedro E.’s vehicle. Pedro E. returned to the parking lot, and 

asked Mariscal what he was doing. At this point, Mariscal was near the back of 

Pedro E.’s car and Pedro E. was in front of his car. Mariscal took the weedwhacker out 

of the trunk. Pedro E. stepped toward him and asked, “ ‘Hey, what are you doing?’ ” 

Mariscal pulled out a knife from the “side of his shorts,” and thrust it toward Pedro E., 

saying, “ ‘Don’t get close to me, you know, I’ll use it.’ ”

5 Pedro E. was afraid and told 

Mariscal to “take it.” He believed that Mariscal would use the knife if he tried to get the 

weedwhacker back. 

Mariscal ran off with the tool and got on his bicycle. Pedro E. got into his car and 

called 911. Oscar F. testified that when he and Pedro E. got into the car, Pedro E. “was 

pretty scared.” Pedro E. and Oscar F. began to follow Mariscal, relaying their position to 

the dispatcher, and eventually they saw Mariscal standing with his bicycle by an 

5 There was conflicting evidence on this point. During the 911 call, Pedro E. told 

the dispatcher that Mariscal had pulled out a knife and told him to “walk away.” When 

he spoke to police just after Mariscal was detained, Pedro E. denied that Mariscal pulled 

out a knife, saying “ ‘No. No. He just had it right here [in his waistband].’ ” At the 

preliminary hearing, Pedro E. testified that Mariscal “had taken the knife out of his waist 

[sic] and . . . put it in front of him like he was going to use the weapon.” 
4

apartment complex. Mariscal appeared to be breathing hard, but he no longer had the 

weedwhacker.6 Pedro E. saw the police arrive and take Mariscal into custody. Pedro E. 

identified Mariscal at the scene as the person that took the weedwhacker from the trunk 

of his car. 

San Jose Police Detective Alejandro Ortiz, along with other officers, responded to 

Pedro E.’s 911 call with lights and siren activated. Ortiz testified that police did not find 

a knife on Mariscal when he was arrested, nor did police recover a knife anywhere in the 

vicinity that day. However, Ortiz also testified that it is not uncommon for suspects to 

discard weapons or other evidence of crime because “[n]obody wants to be arrested with 

something that they just committed a crime with.”

2. The Defense Case

Mariscal presented no evidence in his defense.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Mariscal argues his trial counsel was ineffective for failing to object to multiple 

instances of prosecutorial misconduct during final argument. According to Mariscal, that 

misconduct consisted of the prosecutor “denigrat[ing] defense counsel, misstat[ing] the 

law, and improperly play[ing] to the jurors’ sympathies.” We conclude the prosecutor’s 

statements did not constitute misconduct and, even if they did, Mariscal cannot show he 

was prejudiced by them.

1. Applicable Legal Principles

“Under both the Sixth Amendment to the United States Constitution and article I, 

section 15, of the California Constitution, a criminal defendant has the right to the

assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a 

claim of ineffective assistance of counsel, a criminal defendant must establish both that 

6 Police officers recovered the weedwhacker from behind a bush near the 

apartment complex. 
5

his counsel’s performance was deficient and that he suffered prejudice. (Strickland v.

Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance 

component of an ineffective assistance of counsel claim requires a showing that 

“counsel’s representation fell below an objective standard of reasonableness. [¶] . . .

under prevailing professional norms.” (Id. at p. 688.)

With respect to prejudice, a defendant must show “there is a reasonable 

probability”—meaning “a probability sufficient to undermine confidence in the 

outcome”—“that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” (Strickland, supra, 466 U.S. at p. 694.) We “need not 

determine whether counsel’s performance was deficient before examining the prejudice 

suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to 

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that 

course should be followed.” (Id. at p. 697.)

A prosecutor engages in prosecutorial misconduct under state law if he or she uses 

deceptive or reprehensible methods to attempt to persuade either the trial court or the 

jury. (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).) When the alleged

prosecutorial misconduct stems from the prosecutor’s remarks or comments made 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.” (People v.

Samayoa (1997) 15 Cal.4th 795, 841.)

To find prosecutorial error, we must view the challenged statements in the context 

of the entire argument and the jury instructions to determine whether there was a 

reasonable likelihood the jury understood or applied the comments in an improper or 

erroneous manner. (People v. Cortez (2016) 63 Cal.4th 101, 130-131.) “If the 

challenged comments, viewed in context, ‘would have been taken by a juror to state or 

imply nothing harmful, [then] they obviously cannot be deemed objectionable.’ ” (Id. at 

p. 130) “ ‘In conducting this inquiry, we “do not lightly infer” that the jury drew the 
6

most damaging rather than the least damaging meaning from the prosecutor’s 

statements. ’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)

2. Prosecutor’s Final Argument

a. The Claimed Denigrating or Disparaging Statements

During closing, the prosecutor made the following remarks which Mariscal 

contends denigrated defense counsel, specifically regarding her examination of Pedro E.:

(1) “[A]t one point when [Pedro E.] was being badgered in his examination, did you 

notice that he got a little emotional”; (2) “[I]t might be fun to poke fun at [Pedro E.] and 

be ‘Oh, . . . I got you. Were you being truthful then? Are you being truthful now?’ ”; 

(3) “[Pedro E.] got to get re-victimized by recounting what it is that happened on that 

date”; and (4) “[A]bsolutely the facts in this case come from [Pedro E.]. But to come in 

here and make an indictment on [Pedro E.] when he tells you, ‘I don’t remember the 

exact words.’ ” 

The prosecutor made the following additional remarks which Mariscal claims 

personally denigrated defense counsel: (1) “[T]he burden [of proof] is on the People. 

And so the proverbial potted plant, the defense has no obligation to put on any evidence. 

[¶] But the minute they start asking questions, you can look to the nature of those 

questions, the responses they’re eliciting and even the argument you just heard with the 

same critical eye as you would to me, as the prosecution, who has the burden in this 

case”; and (2) “I impress upon you to hold me to that burden so much so that I didn’t put 

up a gimmicky map or graph, because I know that you’re going to get the instructions 

exactly as the Court says you need to receive the law in this case.” (Italics added.) 

Mariscal also notes the following times the prosecutor accused defense counsel of 

seeking to distract the jurors, deflect from the relevant evidence, and distort the issues: 

“This is ultimately the defense in the case, ladies and gentlemen. It’s to distract you, 

deflect you from the issues in this case and distort the actual issues of this case”; “Are 

these actually issues of relevance in this case or are you just being distracted from what 
7

actually is the issue here, from that man’s conduct in this case?”; “Is that only meant to 

distract you? [¶] It is.”; “Are you being distracted though by that argument? I think 

there’s been some deflection that’s happening in this case, this idea that we didn’t locate 

the knife”; “This idea that there was a thorough investigation is an attempt to deflect you 

from, again, Mr. Mariscal’s conduct . . . .”; “Ladies and gentlemen, that’s a deflection of 

the roles in this case, what’s actually at issue here”; and “So, again, is the argument 

simply distorting the issues here?”

Under California law, “[i]t is misconduct for the prosecutor in argument to impugn 

the integrity of defense counsel or to suggest defense counsel has fabricated a defense.” 

(People v. Cash (2002) 28 Cal.4th 703, 732.) In addressing a claim of prosecutorial error 

based on disparagement or denigration of defense counsel, we ask whether the 

prosecutor’s comments were a fair response to the remarks of defense counsel. (People 

v. Pearson (2013) 56 Cal.4th 393, 431-432.)

A prosecutor’s observation “ ‘ “that an experienced defense counsel will attempt 

to ‘twist’ and ‘poke’ at the prosecution’s case does not amount to a personal attack on 

counsel’s integrity.” ’ ” (People v. Wilson (2005) 36 Cal.4th 309, 338-339.) Even going 

so far as to characterize defense’s counsel’s argument as “ ‘ridiculous’ ” and 

“ ‘outrageous’ ” is not misconduct. (People v. Peoples (2016) 62 Cal.4th 718, 793.)

Having examined the prosecutor’s allegedly disparaging remarks about defense 

counsel’s examination of Pedro E., we conclude—in the context of the record—those 

remarks were not misconduct. Rather, the prosecutor was attacking defense counsel’s 

efforts to undermine Pedro E.’s credibility, seeking to refocus the jury on the essence of 

Pedro E.’s testimony and his demeanor on the stand rather than inconsistencies revealed 

by the defense. This was proper argument and not an unfair attack on defense counsel’s 

integrity.

Similarly, in the context of this closing argument, we read the reference to the 

defense as the “proverbial potted plant” as an inartful attempt to characterize for the jury 
8

how, in general, the burden of proof in a criminal trial is borne by the prosecution, while 

the defense may rightfully present no evidence, but base its argument for acquittal on the 

deficiencies in the prosecution’s case. Even if a negative association could be drawn 

from this statement, it is unlikely jurors would do so, especially given defense counsel’s 

vigorous and effective examination of Pedro E. While it is possible the jury “ ‘drew the 

most damaging rather than the least damaging meaning from the prosecutor’s 

statements,’ ” we will not “ ‘ “lightly infer” ’ ” it did so. (Centeno, supra, 60 Cal.4th at 

p. 667.)7

The prosecutor’s numerous references to defense counsel’s tactics as efforts to 

distract, detract (from), and distort the issues also do not improperly disparage defense 

counsel. (See People v. Taylor (2001) 26 Cal.4th 1155, 1166 [prosecutor referring to 

defense “tricks” or “moves” in questioning witness credibility do not amount to improper 

personal attack on defense counsel’s integrity].) The prosecutor’s message was that the 

jury should not doubt Pedro E’s credibility merely because defense counsel’s 

cross-examination revealed inconsistencies in Pedro E.’s testimony. The prosecutor did 

not accuse defense counsel of factually deceiving the jury or fabricating evidence. 

(People v. Zambrano (2007) 41 Cal.4th 1082, 1152 [no misconduct where prosecutor 

called defendant’s argument “ ‘lawyer’s game’ ”], disapproved on other grounds in

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It is not misconduct to “simply 

point[] out that attorneys are schooled in the art of persuasion” as opposed to “improperly 

imply[ing] that defense counsel was lying.” (People v. Gionis (1995) 9 Cal.4th 1196, 

1216 (Gionis).) As a result, we conclude defense counsel’s decision not to object to these 

statements during final argument was reasonable.

7 Although we conclude the prosecutor’s remarks here do not rise to the level of 

misconduct, we would encourage all counsel to be mindful of the language they use in 

the courtroom. Words like “badgering” invite unnecessary negative connotations by the 

finder of fact and thus add heat to, but shed little light on, the important questions to be 

resolved. 
9

b. The Claimed Appeals to Sympathy and Fear 

Mariscal points to the following statements as improper appeals to the jurors’ 

sympathy and as an attempt to elicit fear: (1) “If you think that someone who isn’t as 

smart and sophisticated and savvy as an attorney doesn’t enjoy the protection of the 

law . . . come back with a verdict of an acquittal. [¶] If [Pedro E.] doesn’t deserve the 

protections of the law, ultimately—I submit to you—that’s what’s being asked of you,

because he gave different answers and he gave different accounts”; and (2) “My hope is 

that you don’t have to experience this more serious type of theft. When someone uses 

force or fear and makes you feel that you’re going to get hurt or that your life is in danger 

the same way that [] Mariscal did to the victim, [Pedro E.], in this case.” 

A prosecutor may not make a Golden Rule argument by appealing “ ‘to the 

sympathy or passions of the jury’ ” and “ ‘urging them to imagine the suffering of the 

victim.’ ” (People v. Vance (2010) 188 Cal.App.4th 1182, 1192 (Vance).) “[A]n appeal 

to the jury to view the crime through the eyes of the victim is misconduct at the guilt 

phase of trial; an appeal for sympathy for the victim is out of place during an objective 

determination of guilt.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1057.)

The first statement implying that Mariscal should be acquitted if the jurors thought 

“that someone who isn’t as smart and sophisticated and savvy as an attorney doesn’t 

enjoy the protection of the law” was not an appeal to their sympathy, nor could it be 

characterized as either a “deceptive or reprehensible method[] to attempt to persuade . . .

the jury” of Mariscal’s guilt. (Morales, supra, 25 Cal.4th at p. 44.) Again, the prosecutor

was seeking to rehabilitate Pedro E.’s credibility by pointing out “that attorneys are 

schooled in the art of persuasion.” (Gionis, supra, 9 Cal.4th at p. 1216.) Accordingly,

there was no reasonable basis for defense counsel to object.

The second statement, in which the prosecutor expressed his “hope” that none of 

the jurors will ever be victims of a robbery and “feel that you’re going to get hurt or that 

your life is in danger” like Pedro E., presents a closer question. Upon hearing a statement
10

like this, some people would naturally imagine how it would feel to have one’s life 

threatened. The next logical step for them would be to consider that the victim likely 

experienced feelings similar to their own. At this point, the person is empathizing with 

the victim’s emotional state, something the prosecution should not directly invite. 

While better left unsaid, the prosecutor’s remarks on this matter were brief and 

anodyne. They do not come anywhere near the emotional assault launched by the 

prosecutor in a case like Vance, supra, 188 Cal.App.4th at pages 1194 and 1195

[prosecutor committed misconduct by describing suffocation victim’s last feelings in 

graphic detail and telling jurors it was their duty to “ ‘relive’ ” them]. “[A] few [such] 

remarks in a much longer closing argument” generally will not prejudice the defendant.

(See People v. Seumanu (2015) 61 Cal.4th 1293, 1344 [considering prosecutor’s brief 

victim impact statements in case with strong evidence of guilt].) The appeal to view the 

offense through Pedro E.’s eyes was tangential at best, and as a result, defense counsel 

was reasonable in not objecting to the prosecutor’s remarks.

c. The Claimed Appeals to the Desire to Punish Crime

Mariscal cites the following two statements as improper appeals to the jurors’ 

desire to ensure that law and order prevail: (1) “It would make sense that someone 

doesn’t get a pass for . . . robbery because we don’t find the weapon on them, right?”; and 

(2) “[W]hat we’re recognizing here, what the law is acknowledging and what we’re 

saying as a society that we won’t accept is for a man to use force or fear to take 

something away from someone else.” 

It “is permissible [for a prosecutor] to comment on the serious and increasing 

menace of criminal conduct and the necessity of a strong sense of duty on the part of 

jurors. [Citation.] The prosecution may properly urge his points vigorously as long as he 

does not act unfairly.” (People v. Escarcega (1969) 273 Cal.App.2d 853, 862-863.)

The prosecution’s statements were not unfair efforts to spark fear or anger among 

the jurors. Rather, they were efforts to explain the force or fear element of robbery to the 
11

jury and help it understand that element does not require a finding that Mariscal pulled a

knife out of his waistband or that the police recovered a weapon. There was nothing 

inflammatory or inaccurate in the prosecutor’s remarks and thus there was no reason for 

defense counsel to object to them.

d. The Claimed Misstatement of Law

Finally, Mariscal contends the prosecutor misstated the law on lesser-included 

offenses, as follows: “I want to talk about the lesser included [offense of petty theft] that 

you’ve been instructed on. [¶] And the law is going to bend over backward to make sure 

all [of] the defendant’s rights are realized. That’s not a critique, that’s how it should be. 

But that doesn’t mean that everything you get as an instruction or the law is actually 

relevant to this case. [¶] So much so that the very first instruction you were read was 

‘Some of these instructions may not apply.’ [¶] So you will receive the instruction of the 

lesser-included theft offense. But you have to come to a unanimous verdict of not guilty 

as to the charged Count 1 robbery first. [¶] You can’t consider the petty theft until you all 

agree, frankly, that everything I’m saying is wrong.” (Italics added.) 

“It is misconduct for a prosecutor to misstate the law during argument.” (People 

v. Otero (2012) 210 Cal.App.4th 865, 870.) Mariscal argues the prosecutor’s argument 

misstated the law on lesser-included offenses pronounced in People v. Kurtzman (1988) 

46 Cal.3d 322 (Kurtzman), in which the California Supreme Court held the jury may not 

return a verdict on a lesser offense unless it has agreed beyond a reasonable doubt that the 

defendant is not guilty of the greater crime charged. However, the Kurtzman court also 

concluded the jury should not be prohibited from considering the lesser offenses before 

returning a verdict on the greater offenses. (Id. at p. 329.) The prosecutor’s statement

here, i.e., that the jury could not “consider the petty theft” unless there was unanimous 

agreement that Mariscal was not guilty of robbery, was plainly a misstatement of the law. 

This misstatement, however, was harmless. Prior to the prosecutor delivering his 

final argument, the trial court instructed the jury on lesser-included offenses with 
12

CALCRIM No. 3517: “If all of you find that the defendant is not guilty of the greater 

charged crime of robbery, you may find him guilty of the lesser crime of petty theft if you 

are convinced beyond a reasonable doubt that the defendant is guilty of that lesser crime. 

[¶] A defendant may not be convicted of both a greater and lesser crime for the same 

conduct. [¶] Petty theft is a lesser crime of robbery as charged in Count 1. It is up to you 

to decide the order in which you will consider each crime and the relevant evidence. But 

I can accept a verdict of guilty of a lesser crime, only if you have found the defendant not 

guilty of the corresponding greater crime.” (Italics added.) The trial court also 

instructed the jury pursuant to CALCRIM No. 200 that “If you believe that the attorneys’ 

comments on the law conflict with my instructions, you must follow my instructions.” 

The jury was provided written copies of these instruction to reference during deliberation.

As noted, under the Kurtzman rule, a trial court may not prohibit the jury from 

considering or discussing the lesser offenses before returning a verdict on the greater 

offenses. (Kurtzman, supra, 46 Cal.3d at p. 329.) Mariscal cannot demonstrate prejudice 

from the prosecutor’s statements because the trial court expressly instructed the jurors 

that it was up to them “to decide the order in which you consider each crime and the 

relevant evidence. But I can accept a verdict of guilty of a lesser crime, only if you have 

found the defendant not guilty of the corresponding greater crime.” (Italics added.) The 

jury was further instructed that if it believed an attorney’s comments on the law 

conflicted with the court’s instructions, it must follow the court’s instructions. “ ‘[W]e 

presume that jurors treat the court’s instructions as a statement of the law by a judge, and 

the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” 

(People v. Osband (1996) 13 Cal.4th 622, 717, quoting People v. Clair (1992) 2 Cal.4th 

629, 663, fn. 8.)

Because the jury was correctly instructed with CALCRIM No. 3517 (and 

CALCRIM No. 200), Mariscal cannot establish prejudicial prosecutorial misconduct and 

thus defense counsel reasonably elected not to object. 
13

3. Mariscal Was Not Prejudiced by Counsel’s Failure to Object

Even if we assume for argument’s sake that defense counsel’s failure to object to 

any of the prosecutor’s final argument was constitutionally deficient, Mariscal cannot 

demonstrate prejudice. The prosecution’s case included uncontested percipient testimony 

from both the victim, Pedro E., and his coworker, Oscar F., that confirmed the force and 

fear element of robbery. The record here reflects that Mariscal fled the scene, discarding 

the weedwhacker (and perhaps a knife) before he was arrested. The only real question—

resolved in Mariscal’s favor—was whether he personally used8a knife in committing the 

robbery. 

The jury deliberations were also brief and provide no indication that the jury 

struggled with any of the factual disputes in the case or the credibility of any of the 

witnesses. (See People v. Merriman (2014) 60 Cal.4th 1, 99-100.) In sum, even if 

counsel’s performance was deficient, there was no resulting prejudice to Mariscal. 

(Strickland, supra, 466 U.S. at p. 687.)

III. DISPOSITION

The judgment is affirmed.

8 The jury was instructed that “[s]omeone personally uses a dangerous or deadly 

weapon if he or she intentionally . . . [d]isplays the weapon in a menacing manner.” 
_______________________________

Greenwood, P.J.

WE CONCUR:

______________________________________

 Elia, J.

______________________________________

 Grover, J.

People v. Mariscal

No. H047243