Filed 2/11/15 P. v. Galindo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. OSCAR GALINDO, Defendant and Appellant. F066963 (Super. Ct. No. BF141009A)



### OPINION

APPEAL from a judgment of the Superior Court of Kern Coun ty. John W. Lua, Judge. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorn eys General, for Plaintiff and Respondent. -ooOoo-2. INTRODUCTION On March 8, 2012, defendant Oscar Gali ndo, a previously convicted felon, was involved in two fist fights. The first fi ght occurred with a gr oup of juveniles on defendant’s property. The second fight occu rred approximately 18 minutes later at the residence of the juvenile who was defenda nt’s primary adversar y. Defendant was rendered unconscious after th e second fight. Soon after regaining consciousness, defendant fled to a friend’s house where he retrieved his friend’s sawed-off shotgun for protection. A short time later, defendant return ed home and discovered a door to his shed had been kicked in. Believing the same juve niles were responsible and afraid he might be attacked again at home, defendant walked towards the juvenile’s residence with the shotgun. In view of that re sidence, but without seeing anyon e in the yard, defendant fired the shotgun at least twice towa rds the ground in an effort to frighten his attackers. Law enforcement responded to the scene and defend ant saw a sheriff’s deputy so he threw the shotgun and fled. Defendant wa s arrested shortly thereafter. On May 7, 2012, the Kern County District Attorney f iled an information alleging the following: discharging a firearm at an inhabited dwelling (Pen. Code, § 246; count 1); 1 assault with a firearm (§ 245, subd. (a)(2); count 2); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3); assisting in felonious conduct by gang members (§ 186.22, subd. (a); count 4) 2 ; and possession of a short-barreled rifle (§ 33215; count 5). It was additionally alleged defendant commi tted these offenses for the benefit of or in association with a crim inal street gang (§ 186.22, su bd. (b)(1)), that defendant had suffered one prior strike conviction (§§ 667, su bds. (c)–(j), 1170.12, subds. (a)–(e)), that this same prior was also a seri ous felony (§ 667, subd. (a)), and that defendant had served

1 All future statutory references are to the Penal Code unl ess otherwise noted.
2 Count 4 was dismissed on January 10, 2013, prior to trial.3. two prior terms in prison and fa iled to remain free of custody for a period of five years after being released (§ 667.5, subd. (b).) On January 25, 2013, the jury convicted defendant of counts 3 and 5, but found him not guilty on the remaining counts. Th e jury did not find de fendant committed the offenses for the benefit of a crimin al street gang (§186.22, subd. (b)(1)). On January 28, 2013, the trial court f ound the remaining allegations true, except the court found the section 667, subdivision (a), allegation to not be applicable to counts 3 and 5. On March 25, 2013, defendant filed a motion pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero ), requesting the court to dismiss his prior strike conviction. At sentencing on March 27, 2013, the trial court denied the Romero motion. Defendant was sentenced to eight years in prison with credit for 770 days in custody. On appeal, defendant contends the prosecutor committed misconduct by misrepresenting the law of self-defense during closing arguments. He argues the misconduct rendered the trial fundamentally unfair, requiring reversal under either Chapman v. California (1967) 386 U.S. 18 ( Chapman ) or People v. Watson (1956) 46 Cal.2d 818 ( Watson ). He also maintains the trial cour t abused its discretion in denying the Romero motion. We find defendant’s ar guments unpersuasive and affirm. FACTUAL BACKGROUND Defendant does not challenge the sufficiency of the evidence su pporting the jury’s convictions. As such, set forth below are thos e facts taken in the light most favorable to the jury’s verdicts and relevant to defendant’s contentions on appeal. Prosecution facts On March 8, 2012, H.C. lived in the re ar of a unit at 2213 Nelson Street in Bakersfield. At about 7:45 a.m. he left a nd walked with his brother, cousin and a friend with the intention of going to a store. They walked to th e next street, Robinson, where4. they encountered a barking dog at a residence. A man, later identified as defendant, came out of a shed on the front of that propert y and asked why the dog was barking. Words were exchanged between defendant and H.C., and defendant swung at H.C. H.C. hit defendant two times, and defend ant fell to the ground; H.C. hit defendant again and then ran back to his residence. After arriving home, H.C. told his mother he was involved in a fight and a few minutes later he heard his uncle screaming in their front yard. H.C. ran outside and saw defendant fighting with H.C.’s uncle. H.C. told defendant to figh t him and they had a second fist fight, wherein H.C. knocked defe ndant unconscious. H.C. woke defendant up, and defendant walked away and said , “Don’t go anywhere” and that he “had something” for H.C. Defendant also stated he was “OG from the Water Street Loma.” About 15 to 18 minutes later, H.C. wa s in his front yard and he heard two gunshots. H.C. saw defendant running away so he chased him. Defendant ran through an alley to the back of H.C .’s property, where he shot again. H.C. saw defendant carrying a sawed-off shotgun. H.C., along w ith members of H.C.’s family, continued to chase defendant, who got away, but H. C. saw defendant drop the shotgun. Kern County Sheriff’s Deputy Darren Wond erly was dispatched to the area. He saw defendant walking on Nelson Street near H.C.’s residenc e and noticed defendant was carrying something “long and black” in his ri ght hand. Defendant looked at Wonderly and, as soon as he saw Wonderly, defendant threw the black-colored object away and ran. Wonderly lost sight of defe ndant. Wonderly recovered a 12-gauge sawed-off Mossberg shotgun 3 from the location where defendant had th rown the object. He also found two spent 12-gauge shotgun rounds in the street.

3 The sawed-off shotgun had a barrel lengt h of 15 and one-half inches and an overall dimension of 23 and one-half inches from the frontof the barrel to the end of the receiver.5. A neighbor on Nelson Street, Inocente Lopez, testified he saw a group of people jump on and assault defendant, who did not fight back. Lopez sa w defendant on the ground trying to cover himself as he was beaten. When the fight was over, defendant left but came back “about five minut es later” with a weapon. Lopez saw defendant fire two or three tim es “at the ground.” Defendant aimed the shotgun in the direction of H.C.’s reside nce but kept the weapon pointed downwards. Lopez never saw defendant fire the weapon at any people or houses. Defendant threw his weapon and ran when a sher iff’s deputy approached. Kern County Sheriff’s Depu ty Diego Gonzalez apprehen ded defendant later that same day at an apartment on Robinson Street where defendant’s sister lived. Defendant told Gonzalez he had been “jumped” by a group of juveniles who “beat his ass.” Defendant explained he went outside his h ouse because his dog was barking and he saw six Hispanic and black males standing inside his yard. Defendant recognized the youths from the neighborhood and asked why they were in his yard and th ey responded they were looking for someone. When defendant asked for wh om, one of the juveniles approached defendant and cha llenged him to a fight. Defendant felt like all of the juveniles participated in the fight. Defendant told Gonzalez he walked to his sister’s house at 2306 Robinson Street after the fight stopped, but he did not remember anything because he had “blacked out.” Defense evidence Defendant’s neighbor, Penny Nicole Rush, lived on Robinson Street and saw five or six teenage boys attacking defendant on his property. Rush recognized the boys as “troublemakers” in the neighbo rhood with a reputation for being “out-of-control” with parents who do not care. Rush drove away to take her daughter to school and to get her daughter to safety. While Ru sh was driving home, she saw the boys attacking defendant at another location. Defendant was knocke d to the ground and he began to run from6. them. Defendant looked hurt but he got into a white car, which drove away. She did not hear any shots fired. Defendant testified on his own behalf. On March 8, 2012, he slept in a shed next to his apartment. He was wo ken by his dog barking so he went outside and confronted five teenagers on his property, three in his driv eway and two closer to his front door. He asked what they were doing there, and they responded they were looking for somebody. Defendant told them they were lying and sa id so because only his family was at that location. Defendant approached them and H.C. said, “You want it? You want it?” H.C. hit defendant, and defendant fe lt other people hitting him too and he fell backwards. The juveniles stopped hitting him and he saw them run into an alley. Defendant recognized H.C. from the neighborhood and believed he could speak with H.C.’s mother about what happened. He believed he knew wher e they lived so he decided to go speak with her to complain. He did not contact law enforcement because he just wanted to know why the juveniles acted as they did. He rode his bicycle to H.C.’s residence on Nelson Street where he encoun tered “five or six” people who prevented him from leaving. H.C. was in the middle of th e group and they started beating defendant again. Defendant was knocked to the ground and lost consci ousness, but he was able to get up at some point and he ran away. As he was fleeing, defendant saw a man he knew, Vicente, driving a white car. Defendant fl agged down Vicente, who drove defendant
away. Defendant asked Vicente to drive him to the residence of Joe Hernandez, a friend of defendant’s, where defend ant obtained a shotgun from He rnandez’s shed. The shotgun belonged to Hernandez, but defendant knew it was in the shed because they had shot it on New Year’s Eve. Defendant retrieved the shotgun for protection and asked Vicente to drive him home. As soon as he returned home, defendant saw his shed door had been kicked in. Another neighbor, who only spoke Spanish, gestured towards the shed door and indicated7. people had been there. Defendant was afraid and believed the same assailants had been back to his house. Defendant took the shot gun and walked back towards Nelson Street. He did not see anyone on Nelson Street and he stopped in view of H. C.’s residence. He remained in the middle of Nelson Street and could see H.C.’s yard, but defendant did not see anyone in that yard. Defendant fired th e shotgun twice into the ground in view of H.C.’s residence hoping to scar e the people without injuring anyone. He stated he acted only to protect his home, he was scared a nd believed these people were going to come back and harass him or his family, or jump him again. After he fired the shotgun, defendant turned and saw Wonderl y from the sheriff’s department approaching. Defendant threw th e weapon and fled to his sister’s house. At trial, defendant denied being an activ e member of the Loma Bakers gang, but he admitted to being a past gang member. He denied making a ny threats to H.C. DISCUSSION I. The prosecutor did not commit misconduct A. Background 1. Jury instructions After the close of evidence, the trial court informed the jury, in ter alia, that they were to follow the law as the court explained it to them, even if they disagreed with it. The jurors were further told to follow the court’s instru ctions if they believed the attorneys’ comments on the law c onflicted with the instructions. Regarding counts 3 and 5, the trial court in structed the jury re garding self-defense in relevant part as follows: “The defendant is not guilty of unlawful possession of a firearm as charged in Counts 3 and 5 if he temporarily possessed the firearm in selfdefense. “The defendant possesses a firearm in lawful self-defense if, one, the defendant reasonably believed that he was in imminent danger of suffering great bodily injury; two, the defe ndant reasonably believed that the8. immediate use of force was necessary to defend against that danger; three, a firearm became available to the defenda nt without planning or preparation on his part; four, the defendant possess ed the firearm temporarily, that is, for a period no longer than was necessa ry or reasonably a ppeared to have been necessary for sel f-defense; five, no other means of avoiding the danger or injury was available; and, six, the defendant’s use of the firearm was reasonable under the circumstances.
“Belief in future harm is not su fficient no matter how great or how likely the harm is believed to be. Th e defendant must have believed there was imminent danger of great bodily in jury to himself. Defendant’s belief must have been reasonable, and he mu st have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessa ry in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. “When deciding whether the defenda nt’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonabl e person in a similar situation with similar knowledge would ha ve believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] ... [¶]
“The defendant’s belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have belie ved that the information was true. “If you find that [H.C.] and othe rs threatened or harmed the defendant in the past, you may cons ider that information in deciding whether the defendant’s conduct and beliefs were reasonable. “Someone who has been threatened or harmed by a person in the past is justified in acting more qu ickly or taking greater self-defense measures against that person. “If you find that the defendant received a threat from someone else that he reasonably associated with [H.C .] and others, you may consider that threat in deciding whether the defenda nt was justified in acting in selfdefense. “The People have the burden of proving beyond a reasonable doubt that the defendant did not temporarily possess the firearm in self-defense. If the People have not ... met this burde n, you must find the defendant not guilty of this crime.”9. Regarding counts 1 and 2, the trial court in structed the jury that self-defense was a defense and defendant was not guilty of those crimes if he used force against the other person in lawful self-defense. The court repeated many of the same definitions as expressed for self-defense relative to coun ts 3 and 5 before providing the following: “A person who engages in mutual co mbat or who starts a fight has a right to self-defense only if, one, he actually and in good faith tried to stop the fight; two, he indicated by word or by conduct to hi s opponent in a way that a reasonable person would understa nd that he wanted to stop fighting and that he had stopped fighting; and, three, he gave his opponent a chance to stop fighting. “If the defendant meets these requirements, he then has a right to self-defense if the opponent continues to fight. “A fight is mutual combat when it began or continued by mutual consent or agreement. The agreement may be expressly stated or implied and must occur before the cl aim of self-defense arose. “A person does not have the right to self-defense if he or she provokes a fight or a quarrel with the inte nt to create an excu se to use force. “The right to use force in self-def ense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflic ting any injury, then the right to use force ends.” 2. Closing arguments
Prosecutor During closing arguments, the prosecutor in formed the jury, in relevant part, that the only reasonable interpretation of the facts was that defendant “lost a fight that was mutual combat,” and he went back to initiate another fight, but was beaten up again. A little later, the prosecutor stated “defendant, af ter this separate altercation, becomes free of [H.C.] and the other people, the othe r teenagers or youths that came from the 2213 Nelson Street [address]. He’s free. Done . [¶] What does he do? He goes and gets a shotgun ....” The prosecutor argued defend ant took the weapon “and he goes back a10. second time, after losing two fights, to 2213 Nelson Street. Why? His own words: ‘I wanted to scare them.’ Far cry from self-defense.” Later, the prosecutor argued defendant did not face “imminent danger” because he was “free and clear of the people that he ha s been fighting with, th at he’s picked the second fight with, that he has promised to come back because he’s got something for him. Where is the imminent [danger]? Th ere is none.” The prosecutor also argued it was not reasonable for defendant to believe “immediate use of force was necessary” because he went to a friend’s house to obtai n the shotgun, had time to collect it, went back to his residence, and th en walked to Nelson Street. Defense counsel Defense counsel argued, in relevant part, that defendant felt hi s life was threatened and did what any reas onable person would have done. He asserted defendant did not have an option to call law en forcement because of the neighborhood he lived in. He argued defendant retrieved the sh otgun to protect his family and, instead of taking the shotgun directly to Nelson Street, he went home and discovered the damage to his property and learns the same people who “t ried to kill him twic e that morning had returned to the locatio n of these actions and again attacked his home.” Defense counsel argued defendant acted reasonably, after bei ng “violated” and “beat[en] up” by these people, when he tried “to make them stop, and he goes to that locati on, and he opens fire with the shotgun into the ground , not in the direction of the dwelling, but enough to make a loud noise in order to make sure that they understand that now he is armed. Maybe the next time that they go to his hous e, he will be prepared to stop them. He tried talking. It didn’t work. So he got himself a shotgun, and he made enough noise to make sure that they knew that he was now prepared.”11. Rebuttal During the prosecutor’s rebuttal to the ju ry, the following exch ange took place: “[THE PROSECUTOR]: Remember th at in self-defense, it’s got to be the same engagement. That’s the crux of the law that I showed you. “[DEFENSE COUNSEL]: Your H onor, that misstates the law. “THE COURT: Ladies and gentleme n, the law has been provided to you for your consideration. You can consider the jury instruction packet during deliberations as it will be provided to you. You can then review the self-defense instructions that the attorneys have commented on. “[THE PROSECUTOR]: When you withdraw from a fight saying, ‘I’ve got something for you. I am fro m the Loma,’ that engagement ends. When the people who beat you up walk away, that engagement ends, one of the many reasons why self-defense is not lawfully or factually permissible in this case.” B. Standard of review “‘A prosecutor who uses deceptive or repr ehensible methods to persuade the jury commits misconduct, and such actions requ ire reversal under the federal Constitution when they infect the trial w ith such “‘unfairness as to make the resulting conviction a denial of due process. ’” [Citations.]’” ( People v. Thompson (2010) 49 Cal.4th 79, 120.) “‘Under state law, a prosecutor who uses su ch methods commits mi sconduct 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 tim ely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.’ [Citations.]” ( Id. at pp. 120–121.) “When a claim of misconduct is based on the prosecutor’s comme nts before the jury, ... ‘“the question is whether there is a reasonable likelihood that the jury cons trued or applied any of the complained-of remarks in an objectionable fashion.”’ [Citation.]” ( Id. at p. 127.) It is misconduct for a prosecutor to misstate the law. ( People v. Whalen (2013) 56 Cal.4th 1, 77.) A showing of bad faith is not required to establish prosecutorial12. misconduct stemming from a misstatement of applicable law. ( People v. Hill (1998) 17 Cal.4th 800, 822.) C. Analysis Defendant argues the prosecutor committe d misconduct because he misstated the law of self-defense. 4 He contends the law of self-def ense, as it applies in situations involving mutual combat or when the defendant starts the fight, is “the reverse of what the prosecutor claimed.” As such, defenda nt maintains the prosecutor’s argument “distorted” the principle of sel f-defense in a mutual combat s ituation so that the jury may have believed defendant could not claim self-defense if an “‘engagement’” ended, however briefly. The trial court used CALCRI M No. 3474 and instructed the jury on counts 1 and 2 in relevant part as follows: “[t]he right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any inju ry, then the right to use force ends.” CALCRIM No. 3474 is based on the holding from this court in People v. Perez (1970) 12 Cal.App.3d 232, 236 ( Perez ).
In Perez , the defendant was arrested for driving a vehicle while intoxicated. During the booking process, the arresting o fficer grabbed him by the hair and slammed his head against a desk. Later, the officer had his back turned on the defendant, who hit the officer over his head with a stool. ( Perez , supra , 12 Cal.App.3d at p. 234.) The defendant was convicted of batte ry upon a police officer enga ged in his duties (§ 243).

4 Defendant argues he did not waive or fo rfeit this issue on appeal despite defense counsel’s failure to seek a curative admonition to the jury. Defendant contends any requested admonition would have been futile after the trial court failed to rule on the objection. Respondent does not offer any argument regard ing whether defendant forfeited or waived this issue due to a failure to seek a curative admonition. We need not determine whether defendant preserved this issue for appeal or not because, when we addr ess the substance of this claim, defendant’s contentions are meritless.13. On appeal, the defendant claimed the trial cour t erred, inter alia, in not instructing the jury on self-defense. The Perez court affirmed the judgment, stating “the right of selfdefense is based upon the appearance of immi nent peril to the person attacked. When that danger has passed and the attacker has withdrawn, there can be no justification for the use of further force. [Citations.]” ( Perez , supra , at p. 236.) Here, the prosecutor’s comments that sel f-defense required the same engagement or that the engagement ended were part of the prosecutor’s overall argument defendant could not rely on self-defense because his attackers withdrew and he no longer faced imminent danger. Indeed, in his initial argume nts, the prosecutor informed the jury it was not reasonable for defendant to believe “immediate use of force was necessary” because he went to a friend’s house to obtai n the shotgun, had time to collect it, went back to his residence, and then walked to Nelson Street. Ev en when viewed in isolation as defendant appears to urge, the prosecutor’s statements did not misrepresent the law of self-defense and were consistent with both Perez and CALCRIM No. 3474. Likewise, the prosecutor’s comments did no t misstate or “distort” the law in a mutual combat situation. Regarding counts 1 and 2, the trial court utilized CALCRIM No. 3471 5 and instructed the jury regarding the us e of self-defense in mutual combat.

5 CALCRIM No. 3471 states: “A person who (engages in mutual combat/ [o r who] starts a fight) has a right to selfdefense only if: “(He/She) actually and in good faith tried to stop fighting; “[AND] “(He/She) indicated, by word or by conduct, to (his/he r) opponent, in a way that a reasonable person would understand, that (he/she) wanted to stop fighting and that (he/she) had stopped fighting(;/.) “< Give element 3 in cases of mutual combat. > “[AND] “(He/She) gave (his/her) opponent a chance to stop fighting.]14. The jury was instructed that, to have the right to rely on self-defense, defendant must have attempted to withdraw from the fight. Immediately after this instruction was given, however, the trial court also instructed the jury that “[t]he right to use fo rce in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inf licting any injury, then the right to use force ends.” The prosecutor never argued defendant lost his right to self-defense because defendant attempted to withdraw. Rather, the prosec utor argued defendant no longer faced any reasonable peril. The prosecutor’s comments we re consistent with the trial court’s jury instructions and the law, and did not ask the jury to “divid e the facts” into “discrete” engagements, as defendant contends. Defendant cites People v. King (1978) 22 Cal.3d 12 ( King ) to establish the prosecutor misstated the law. Defenda nt’s reliance is misplaced. In King , the defendant, an ex-felon, was attending a party at an apar tment when intruders attempted to force their way in. The defendant fe lt fear as did others in the apartment. ( Id. at p. 26.) Another guest handed the defendant a gun and the defe ndant shot the gun only to frighten and not in an attempt to kill the intruders. The defendant was convicted of possession of a firearm as a convicted felon after the trial c ourt refused to instructthe jury on selfdefense. On appeal, the King court held the evidence was sufficient to require a jury

“If the defendant meets these requirements, (he/ she) then had a right to self-defense if the opponent continued to fight. “[However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defenda nt could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly fo rce and was not required to try to stop fighting(,/ or) communicate the desire to stop to the opponent[, or give the opponent a chance to stop fighting].] “[A fight is mutual combat when it began or continued by mu tual consent or agreement. That agreement may be expressly stated or imp lied and must occur befo re the claim to selfdefense arose.]”15. instruction on the right to self-defense and a right to an instruction that if his possession of the weapon was solely for th e purpose of self-defense, wa s not preplanned, and did not continue beyond the existence of the circum stances giving rise to the right to selfdefense, the defendant could be found not guilty for hi s possession of the weapon by a felon. ( Id. at pp. 26–27.) In reaching its holding, the King court stated the right to selfdefense does “not continue beyond the existen ce of the circumstances giving rise to the right to self-defense ....” ( Ibid .) Here, when read as a whole, the prosecu tor’s argument was that defendant used the shotgun when he was no longer in peril. The prosecutor’s arguments were not contrary to King and did not misstate the law. ( Perez , supra , 12 Cal.App.3d at p. 236; CALCRIM No. 3474.) As such, because th e prosecutor did not misstate the law, misconduct did not occur. Because the prosecutor did not commit misconduct, defendant’s remaining arguments have no merit. The jury was not “led astray” by the prosecutor’s comments. The prosecutor did not “imprope rly” discourage the jurors from considering the “totality of [the] circumstances” or improperly encour age them to focus on defendant’s “final actions.” The prosecutor did not “frame th e analysis” in a “legally inaccurate” or a “distorted way” in considering what a reasonable person might have done. Further, the prosecutor did not misrepresent the legal principle that an individual who is the victim of antecedent threats or att acks is justified in using self-defense more quickly. The trial court instructed the jury on that principle utilizing CALCRIM No. 3470 and the prosecutor’s arguments in no way contradicted that instruction. A review of the entire proceeding shows the prosecu tor’s actions did not infect the trial with a level of unfairness as to deprive defendant his due process rights. ( People v. Cole (2004) 33 Cal.4t h 1158, 1204.) Moreover, even if we did characterize th e prosecutor’s comments as misconduct, defendant cannot show prejudice. The jury wa s informed that the c ourt would supply the16. correct definition of self-defense and the jurors were instructed to follow the court’s legal definitions if they felt the a ttorney’s comments conflicted at all. Immediately following defense counsel’s objection to the prosecuto r’s statements, the trial court advised the jurors the law had been provided to them in a packet that they could review and consider during deliberations. The jurors are presumed to have understood and followed the trial court’s instructions. ( People v. Myles (2012) 53 Cal.4th 1181, 1212.) The jurors are also presumed to be sufficiently capable of understanding and “‘correlating’” all jury instructions given. ( People v. Richardson (2008) 43 Cal.4th 959, 1028.) As such, in light of the legal instructions given by the tr ial court, and the admonition to follow those instructions if the attorneys sa id anything that conflicted, it is beyond a reasonable doubt the prosecutor’s statements had no impact on the outcome of this trial. Despite defendant’s arguments to the contrary, nothing in the prosecutor’s st atements expressly or impliedly advised the jurors to disregard the court’s instructions. To the contrary, the prosecutor merely argued how the jury should vi ew the evidence, which is permissible. ( People v. Cole , supra , 33 Cal.4th at p. 1203 [“prosecutor s ‘have wide latitude to discuss and draw inferences from th e evidence at trial,’ and wh ether ‘the inferences the prosecutor draws are reasonable is for the jury to decide’”].) Considering the prosecutor’s statements a nd the relevant jury instructions as a whole, there was no risk the jury was misled as to how to ap ply the law of self-defense. As such, defendant can neither show miscond uct nor a fundamentally unfair trial. ( People v. Whalen , supra , 56 Cal.4th at pp. 78–79.) Th us, defendant is not entitled to reversal under either Chapman, supra, 386 U.S. 18 or Watson , supra , 46 Cal.2d 818. II. The trial court did not abuse its di scretion in denying the Romero motion Defendant argues the trial court abused its discretion when it denied the Romero motion to strike his prior strike conviction. He maintains the trial court did not accurately evaluate the nature and circumstances of the current convictions, ignored multiple obvious mitigating factors, and incorrectly asserted no factors in mitigation existed.17. A. Background In 2010, defendant was convicted of a strike offense for first degree burglary (§460, subd. (a)) for which he re ceived three years of felony probation and one year in jail. On March 25, 2013, defendant filed his Romero motion, arguing he shot the shotgun after he “was savagely beaten by a gang of juveniles and ... after the said group attacked his home and his family therein. ” The motion emphasized the jury acquitted defendant of all serious charges alleged by the prosecution, nobody was injured by defendant’s actions, no property damage occu rred, and defendant used the weapon “only ... for defensive purposes.” The motion al so listed certain facts about defendant, including his age, how he grew up in a poor neighborhood and spent time with the “wrong crowd,” how he was changing and be coming a better, more responsible father, how he was active in his comm unity abating graffiti and help ing young men stay out of gangs, and how he was motivat ed to find employment again. On March 27, 2013, the dist rict attorney filed an opposition to defendant’s Romero motion. The opposition argued defendant had an adult crimin al record going back to 1993 involving narcotics and alcohol-relate d offenses, had two prison commitments in 2002 and 2007, and then suffered a strike conviction in 2010. The prosecutor argued defendant did not “fall outside the scope of the Three Strikes Law.” The sentencing hearing took place on March 27, 2013. Both parties submitted the issue without oral argument. In denying the Romero motion, the trial court stated the following: “It does appear, based on the motion, as well as the opposition filed, that striking the prior conviction from 2010 is something that this Court should consider. And in doing so, in consider ing the nature of the circumstances of the present offe nse, it was represented by way of argument that the jury believed that the defendant was defending himself and only used the weapon fo r defensive purposes only.18. “Counsel, I do recall the jury instruc tions given to this panel, as well as the evidence that was pres ented before that panel. “And the jury could have, and os tensibly would have, acquitted the defendant of Counts 3 and 5 had they believed the self-defense argument provided, or the defense of other argum ent as stated in closing argument, because that was an absolute de fense to both C ounts 3 and 5. “Likewise, the jury could have, a nd inferentially and most likely, believed that the defendant’s shots di d not assault the alleged victim, nor that the defendant’s shots were traveli ng near in the vicinity or towards the residence alleged. “For those reasons, the Court does infer reasonably that the jury reached these decisions not based on se lf-defense but based on the evidence as it was presented. “In doing so [ , ] the Court must consider the circumstances of the present offense. And when consider ing the circumstances of the present offense, the defendant certainly arme d himself with a firearm, and then proceeded to travel some distance on fo ot with that firearm before firing it a number of times. That was testifie d to by witnesses both called by the People, as well as by the defense. “In considering the nature of the pr ior convictions or the defendant’s criminal history as stated in the probation officer’s re port, [defendant], while he is approximately 37 years old, has suffered juvenile adjudications dating back to 1989, and then begi nning in 1993 began suffering a number of misdemeanor convictions and felony convictions. Specif ically, in 2010 the defendant was convicted of what is commonly referred to as [a] strike prior [f]or a conviction of a residential burglary. “It does appear that his criminal record has been consistent since 1989 in that he suffered convictio ns, as well as probation violations— numerous probation violations, that entire time. “It does not appear, therefore, that [defendant] falls outside the spirit of the Three Strikes Law. And based on a review of the present offense as well as criminal history, the Court is going to deny the [ Romero ] motion.” Later, in determining that the upper term was justified, the trial court stated: “[Defendant], I can appreciate th e circumstances that you found yourself under given the early morning hou rs of that particular day, as well as those individuals that surrounded you and assaulted you. That was never19. an issue and was never in question, to the extent that ther e was actually an assault.
“What was at issue was who started the assault. And based on the number of juveniles that were surro unding you and your conduct in relation to those juveniles, it’s certainly something that the jury considered. “The aftermath of that, and I’m speaking specifically as to the confrontation that occurred in front of the juvenile’s residence, whether that could have been avoided or should ha ve been avoided, we are certainly beyond that point. But, certainly, that is what precipitated you returning to that residence with a firearm. “It does appear to the Court that that particular circumstance could have been avoided but for, perhaps, aggression, frustration, and anger taking the better part of most of those individuals involved, did it lead to an escalated act of violence. “As to circumstances in mitigation, there aren’t any. “As to circumstances in aggrav ation, the defendant’s prior convictions as an adult and sustaine d petitions in juvenile delinquency proceedings are numerous. He was on state parole and felony probation when this crime was committed. Defendant’s prior performance on juvenile, misdemeanor, and felony probation, pursuant to Penal Code Section 1210.1, State parole and California Yout h Authority parole was unsatisfactory in that he violated terms and continued to reoffend. “He does qualify for punishment in the Department of Corrections based on this current offense, as well as his prior conviction from 2010. “He does not appear to the Court to be a suitable candidate for felony probation. He is statutorily ineligible but for the Court finding unusual circumstances to grant him th at opportunity. And this Court is unlikely to do so.” B. Standard of review Section 1385, subdivision (a), gives the tr ial court discretion to dismiss a prior conviction, including a qualifyi ng strike conviction, “in fu rtherance of justice.” ( Romero , supra , 13 Cal.4th at p. 530.) “[A] trial court’s refusal or failu re to dismiss or strike a prior conviction allegation under section 13 85 is subject to review for abuse of discretion.” ( People v. Carmony (2004) 33 Cal.4th 367, 375.) Our Supreme Court has20. explained that in applying the abuse of discre tion standard in the present context, we are guided by two essential principles: “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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.]” ( Id. at pp. 376–377.) “Second, a ‘“de cision will not be reversed merely because reasonable people might disagree. ‘An appellate tribuna l is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’”’ [Citations.] Taken together, these precepts establish that a tria l court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” ( Id. at p. 377.) “‘[T]he Three Strikes initiative, as well as the legislative act embodying its terms, was intended to restrict courts’ discretion in sentencing repeat offenders.’ [Citation.]” ( People v. Carmony , supra , 33 Cal.4th at p. 377.) “To achieve this end, ‘the Three Strikes law does not offer a discretionary se ntencing choice, as do other sentencing laws, but establishes a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike, unless th e sentencing court “conclud[es] that an exception to the scheme should be made be cause, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” ( Ibid. ) The Supreme Court has establ ished “stringent standards that sentencing courts must follow” in order to find an exception to the Three Strikes scheme. ( People v. Carmony , supra , 33 Cal.4th at p. 377.) “‘[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction alle gation or finding under the Three Strikes law, on its own motion, “in furtherance of justice” pursuant to ... section 1385[, subdivision ](a), or in revi ewing such a ruling, the cour t in question must consider21. whether, in light of the nature and circumstan ces of his present felonies and prior serious and/or violent felony convictions, and the pa rticulars of his background, character, and prospects, 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.]” ( Ibid. ) The Supreme Court has made clear “the th ree strikes law not only establishes a sentencing norm, it carefully circumscribes th e trial court’s power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” ( People v. Carmony , supra , 33 Cal.4th at p. 378.) Because of this presumption, “a trial cour t will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circ umstances. For exam ple, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impe rmissible factors in declining to dismiss [citation].” ( Ibid. ) The circumstances must be “‘ex traordinary ... by which a career criminal can be deemed to fa ll outside the spirit of the ve ry scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack ....’” ( Ibid. ) C. Analysis Defendant contends it was an abuse of disc retion for the trial court to suggest no factors in mitigation existed. He argues three “obvious” mitigating factors under the California Rules of Court were present. Fi rst, the crime was committed because of an unusual circumstance, such as gr eat provocation, that is unlikely to recur. (Cal. Rules of Court, rule 4.423(a)(3).) Seco nd, the criminal conduct wa s partially excusable for a reason not amounting to a defense. ( Id. , (a)(4).) Finally, defendant exercised caution to avoid harm to persons or damage to property. ( Id. , (a)(6).) Defendant’s arguments, however, are not supported by either the facts or the law.22. As an initial matter, defendant cites no au thority for the prop osition a trial court must analyze the factors in m itigation set forth in the Cali fornia Rules of Court when denying a Romero motion. To the contrary, the Supr eme Court requires a trial court to apply the Three Strikes law “‘where the de fendant has at least one qualifying strike, unless the sentencing court “conclud[es] that an exception to the scheme should be made because, for articulable reasons which can w ithstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme.”’ [Citation.]” ( People v. Carmony , supra , 33 Cal.4th 377.) Here, defendant had a least one qualifying st rike. As such, the trial court correctly applied the Three Strikes law to defendant. ( People v. Carmony , supra , 33 Cal.4th at p. 378.) Thus, a strong presumption exists that defendant’s sentence was both rational and proper. ( Ibid. ) The denial of defendant’s Romero motion does not fall under the “limited circumstances” in which a trial court is said to have abused its discretion; the trial court was aware of its discretion to dismiss defendant’s strike. ( People v. Carmony , supra , 33 Cal.4th at p. 378

. ) The trial court also did not c onsider “impermissible factors in declining to dismiss ....” ( Ibid. , citing People v. Gillispie (1997) 60 Cal.App.4th 429, 434 [court may not consider factors that viol ated] equal protection, “such as bias related to the defendant’s race or natio nal origin, or that under the peculiar circumstance of the case, the sentencing norms produced an ‘a rbitrary, capricious or patently absurd’ result”].) Instead, the trial court considered defendant’s written motion and identified factors it deemed significant when denying the motion. Moreover, despite defendant’s arguments to the contrary, the trial court was mindful of the circumstances surrounding defe ndant’s present crimes. The trial court noted the jury must have inferentially be lieved defendant did not assault the alleged victim with his shots, which did not travel in the vicinity of or towards the victim’s residence. When discussing sentencing, the trial court stated it could “appreciate the23. circumstances” defendant found himself in after defendant was “surrounded” and “assaulted” by the individuals. Defendant is incorrect that the court “objectively misrepresented the nature and ci rcumstances of the new offenses ,” or that it relied solely on defendant’s background. To the contrary, the court was mindful that defendant armed himself with a sawed-off shotgun, walked some distance on foot with that firearm, and fired it more than once on a public road. Th e court also noted the second confrontation that occurred in front of the juvenile ’s residence could ha ve been avoided. Defendant relies on People v. Superior Court (Alvarez ) (1997) 14 Cal.4th 968 ( Alvarez ) for the proposition the court abused its discretion because it did not give “individualized consideration” to defendant’s situation. As noted above, the court did review defendant’s situation. Moreover, Alvarez did not deal with a trial court’s discretion under section 1385, but, instead, examined a tria l court’s discretion to reduce a “wobbler” under section 17, subdivision (b), in light of the Three Strikes law. ( Alvarez , supra , at pp. 977, 981.) In light of defendant’s cr iminal background and the circumstances surrounding the present crimes, there is nothi ng in the record demonstrati ng “‘“articulable reasons which can withstand scrutiny for abuse”’” why defe ndant should fall outside the Three Strikes scheme. ( People v. Carmony , supra , 33 Cal.4th at p. 377.) As noted by the trial court, defendant engaged in repeated criminal cond uct and he was on stat e parole and felony probation when this crime was committed. Defendant repeated criminal activity since 1989 with numerous violations of probation. Based on a review of the record, the trial court did not abuse its broad discretion. ( Id . at pp. 376–377.) The trial court’s decision was not so irrational or arbitrary that no reasonable person could agree with it. ( Id. at p. 377.) The trial court’s ruling will not be reversed.24. DISPOSITION The judgment is affirmed.

___________________________ Kane, J. WE CONCUR:

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Levy, Acting P.J.

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Franson, J.