Filed 4/11/16 P. v. Murillo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

JAIME MURILLO,

Defendant and Appellant.

 H041898

 (Monterey County

 Super. Ct. No. SS131148A)

I. INTRODUCTION

A jury convicted defendant Jaime Murillo of first degree murder (Pen. Code, 

§ 187, subd. (a)),1found true an allegation that defendant personally and intentionally 

discharged a firearm (§ 12022.53, subd. (d)), and found true an allegation that defendant 

committed the murder for the benefit of, at the direction of, or in association with a 

criminal street gang (§ 186.22, subds. (b)(1) & (b)(5)). In a separate case, defendant 

pleaded no contest to carrying a loaded firearm in a public place (§ 25850, subd. (a)) and 

admitted that he committed that crime for the benefit of, at the direction of, or in 

association with a criminal street gang (§ 186.22, subd. (b)(1)(a)).

 

1 All further statutory references are to the Penal Code unless otherwise indicated.
2

The trial court sentenced defendant to a prison term of 25 years to life for the 

murder, a consecutive term of 25 years to life for the associated firearm allegation, and a 

consecutive life term with a minimum of 15 years for the associated gang allegation. In 

the second case, the trial court sentenced defendant to a term of three years for carrying a 

loaded firearm and a consecutive term of four years for the associated gang allegation.

On appeal, defendant contends the trial court erred by failing to instruct the jury 

on voluntary manslaughter as a lesser included offense of murder, because there was 

substantial evidence to support a finding of imperfect self-defense. Defendant also 

contends the instruction on provocation, CALCRIM No. 522, was incomplete and 

misleading. Defendant further contends that his trial counsel was ineffective for failing 

to object to prosecutorial misconduct during closing argument. Finally, defendant 

contends the cumulative effect of the errors violated his right to a fair trial. For reasons 

that we will explain, we will affirm the judgment.

II. BACKGROUND

A. The Shooting of Olajuwon Milligan

On the afternoon of March 14, 2013, John Doe No. 1 and John Doe No. 2 went to 

defendant’s house, where they made a plan to go smoke marijuana. Defendant and John 

Doe No. 1 were both members of a Sureño gang subset called Cortez. Defendant took his 

.357 revolver with him before leaving. Defendant put the gun in his waist area, saying he 

wanted it “just in case there’s a Northerner.” Defendant was wearing a Dallas Cowboys 

beanie, which had a blue star on it.

Defendant, John Doe No. 1, and John Doe No. 2 walked to an area behind Alisal 

High School where Sureño gang members often hung out. Olajuwon Milligan and his 

girlfriend, Jane Doe, were in the area. Milligan, a Norteño gang member, was wearing a 

red shirt and playing a guitar. As defendant’s group passed by, either defendant or 

Milligan spoke first. According to John Doe No. 1, defendant asked Milligan, “What’s 
3

up?” According to Jane Doe, Milligan asked defendant’s group what they were doing 

there, saying, “What’s cracking?” Defendant replied, “What’s bracking?”

According to Jane Doe, Milligan stood up and asked defendant if there was a 

problem. Defendant replied, “No. We can just go around the corner,” suggesting that 

Milligan follow him. Milligan took off his sunglasses, revealing a tattoo of four dots 

underneath his right eye. Milligan suggested that if there was a problem, they could take 

care of it “right here.”

According to John Doe No. 2, defendant exchanged “gang type” words with 

Milligan. Milligan called defendant a “scrap,” which is a derogatory word that Norteños 

use towards Sureños. The veins started popping out on both defendant and Milligan’s 

necks as they continued to argue. Defendant told Milligan, “Well, if you’re going to do 

something, do it.”

After the exchange of words, Milligan and Jane Doe walked away, towards 

Jane Doe’s house. Defendant walked in the same direction after telling John Doe No. 1 

and John Doe No. 2, “I’m going to show him how a real C boy does it.” By “C boy,” 

defendant was referring to a member of the Cortez gang.

As defendant approached Milligan and Jane Doe, he started yelling, “Sup what?” 

Milligan walked towards defendant. Jane Doe could see defendant doing something 

around his belt area. Defendant asked Milligan if Jane Doe was his sister. Milligan said 

no. Defendant and Milligan did something resembling a handshake or fist bump.

Defendant then pulled a gun out from the side of his pants and fired a shot. 

Milligan began to run away as defendant fired a second shot, bumping defendant’s 

shoulder as he ran. Milligan fell down after defendant fired a third shot. Defendant left 

as Jane Doe went over to help Milligan, who was bleeding. Milligan subsequently died; 

an autopsy revealed four gunshot wounds to his body. The gunshots were in Milligan’s 

chest, neck, back, and back of the head.
4

Jane Doe called 9-1-1 from the scene to report the shooting. Jane Doe described 

the shooter to the operator. The police arrived at the scene and took Jane Doe to view a 

possible suspect, who she did not identify. The police subsequently showed Jane Doe 

photographs. She initially picked out someone who looked like one of defendant’s 

companions. A few days later, she looked at more photographs and tentatively identified 

defendant. A few weeks later, Jane Doe viewed additional photographs, including a more 

recent photograph of defendant, and she positively identified defendant.

On the night of the shooting, John Doe No. 1 and defendant watched the news and 

saw a report about the shooting. Defendant was acting “happy.” On other occasions, he 

laughed about what he had done or made comments such as, “Oh, remember when I 

dropped that fool? That’s wassup.”

B. Gang Evidence

John Doe No. 1 testified that he became a Sureño gang member at age 13. He 

learned that Sureño gang members commit crimes: they steal cars, do shootings, and rob 

peoples. Sureño gang members associate with the color blue and the numbers 3, 13, and 

30. Although there are various subsets, the common enemy of Sureño gang members is 

“Northerners” (Norteños), who associate with the color red and the number 14. Sureño 

gang members get respected by “putting in work,” such as by “looking for Nortenos,” 

getting in fights, or stealing. Shooting a Norteño would get a Sureño gang member a lot 

of respect, as would killing a Norteño in Sureño territory.

Defendant had previously admitted to police that he associates with Sureños, and 

gang indicia had been found at his residence. After the Milligan shooting, defendant got 

a broken star tattoo, indicating he had killed a Northerner. Defendant also had tattoos 

reading “CS,” for “Cortez Street,” and “NK,” for “Norteno killer.”

The prosecution’s gang expert was Salinas Police Officer Michael Cupak. He 

testified that Sureño gangs associate with the color blue and the number 13, including 

variations of that number (e.g., Roman numerals). The primary activities of the Sureño 
5

gang include “eliminating” Norteños and making money. The primary crimes of Sureño 

gangs are murder, drug sales, possession of illegal weapons, stolen weapons, possession 

of stolen vehicles, robbery, and burglaries.

Officer Cupak testified about several previous crimes committed by known Sureño 

gang members: a murder committed by Angel Ocampo on June 4, 2008; a murder 

committed by Valentin Rivas and Benjamin Carillo on January 12, 2009; a murder 

committed by Antonio Gayoso and Carlos Espinosa on August 6, 2009; a murder 

committed by Santiago Ortiz and Ricardo Martinez on July 28, 2010; an auto theft and 

evasion committed by Rogelio Juarez, Jr. on September 16, 2011; possession of a firearm 

committed by Christopher Ruiz on March 19, 2012; possession of a loaded firearm 

committed by Caesar Gomar on August 20, 2012; and possession of a firearm by Luis 

San Pablo Cardiel on October 24, 2012.

On April 2, 2013, a few weeks after the Milligan shooting, defendant was 

contacted by police. Defendant was in the back seat of a vehicle. Two other individuals 

were in the front of the vehicle. In the back of the vehicle, police found a firearm and 

number of documents containing handwritten rap lyrics. Some of the lyrics referred to 

“unload[ing] the heat,” being armed with a firearm, shooting someone, and committing 

gang crimes. The lyrics also contained language disrespectful to Norteños. Defendant’s 

cell phone was seized; it contained a text indicating that defendant wanted to be a 

member of the Mexican Mafia, “the supreme Sureno gang.”

Defendant was found with gang indicia years earlier as well. During a contact on 

August 12, 2007, defendant was in possession of handwritten rap lyrics that referenced 

killing a rival gang member, unloading a firearm on a Norteño, and shooting at a person’s 

head.

Officer Cupak testified that the area where Milligan and Jane Doe had been 

hanging out was an alley containing Sureño graffiti. If someone was wearing red in that 

area, Sureño gang members would consider it an act of disrespect, and they would want 
6

to attack or kill the person. Killing the person would help the perpetrator move up in the 

ranks of the Sureño gang.

Officer Cupak further testified that sometimes, a Sureño gang member will lure a 

victim in by greeting him and shaking his hand. He acknowledged that a Norteño in the 

alley area would likely know that his presence there could result in violence.

C. Defense Case

The defense case focused on the possibility that defendant was misidentified. An 

officer testified that Jane Doe listened to an audio recording of defendant’s voice after the 

shooting, but she did not recognize his voice as the voice of the shooter.

The defense also sought to establish an alibi. Defendant’s mother testified that on 

the day of the Milligan shooting, defendant was at home. Defendant then went to his 

aunt’s residence. Defendant’s sister testified that she got out of school at 1:10 p.m. that 

day. She went home and then to her aunt’s house, where she and defendant watched 

videos together “for a pretty long time.”

Defendant did not testify. Defendant’s trial counsel argued to the jury that 

Jane Doe’s identification of defendant was not credible and that defendant should be 

found not guilty. Alternatively, he asserted that if the jury found defendant was the 

person who shot Milligan, the jury should find provocation and convict defendant of 

only second degree murder. He argued that provocation was present due to Milligan’s 

presence in the Sureño area while wearing red, Milligan’s initiation of communication, 

and Milligan’s act of displaying his gang tattoos. Defendant’s trial counsel further 

argued that there was no evidence of a plan to kill Milligan.

D. Charges, Verdicts, and Sentence

Prior to trial, the prosecution moved to consolidate the murder case with a case in 

which defendant was charged with possessing a gun on April 2, 2013. Defendant 

subsequently pleaded no contest to carrying a loaded firearm in a public place (§ 25850, 

subd. (a)). Defendant also admitted that the firearm was stolen (§ 25850, subd. (c)(2)) 
7

and admitted that he committed that crime for the benefit of, at the direction of, or in 

association with a criminal street gang (§ 186.22, subd. (b)(1)(a)).

Defendant proceeded to trial on the murder charge. The jury convicted him of 

first degree murder (§ 187, subd. (a)), found true an allegation that defendant personally 

and intentionally discharged a firearm (§ 12022.53, subd. (d)), and found true an 

allegation that defendant committed the murder for the benefit of, at the direction of, or 

in association with a criminal street gang (§ 186.22, subds. (b)(1) & (b)(5)).

At the sentencing hearing, the trial court sentenced defendant to a prison term of 

25 years to life for the murder, a consecutive term of 25 years to life for the associated 

firearm allegation, and a consecutive life term with a minimum of 15 years for the 

associated gang allegation. The trial court sentenced defendant to a term of three years 

for carrying a loaded firearm and a consecutive term of four years for the associated gang 

allegation.

III. DISCUSSION

A. Failure to Instruct on Voluntary Manslaughter

Defendant contends the trial court erred by failing to instruct the jury on voluntary 

manslaughter. He contends a voluntary manslaughter instruction was warranted because 

there was substantial evidence to support a finding that defendant shot and killed 

Milligan in the actual but unreasonable belief that he was in imminent danger of death or 

great bodily injury—i.e., in imperfect self-defense. Defendant contends the error affected 

his right to have the prosecution prove his guilt beyond a reasonable doubt under the 

Sixth and Fourteenth Amendments to the United States Constitution.

1. Proceedings Below

Below, defendant did not argue that the trial court should give a voluntary 

manslaughter instruction based on imperfect self-defense, but his trial counsel asked the 

trial court to give a voluntary manslaughter instruction because the evidence supported a 
8

finding of “provocation by the victim” and a heated argument between defendant and 

Milligan. The prosecutor asked the trial court not to give voluntary manslaughter 

instructions, arguing that the evidence supporting such instructions was “weak at best” 

and providing legal authority for the proposition that gang-related challenges do not 

constitute sufficient provocation.

The trial court found that there was no evidence that would pass the “reasonable 

person standard” for provocation, noting that “the standard is not the reaction of a 

reasonable gang member” but rather an objective standard of “a reasonable person.” 

The trial court also found that there was no evidence that defendant was “under the actual 

influence of strong passion that was induced by the provocation.” Thus, the trial court 

declined to instruct on voluntary manslaughter.

2. Analysis

“ ‘ “ ‘It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence. [Citation.] . . .’ [Citation.] That obligation has been held to include giving 

instructions on lesser included offenses when the evidence raises a question as to whether 

all of the elements of the charged offense were present [citation], but not when there is no 

evidence that the offense was less than that charged. [Citations.]” ’ ” (People v. Souza

(2012) 54 Cal.4th 90, 114 (Souza).)

“ ‘To justify a lesser included offense instruction, the evidence supporting the 

instruction must be substantial—that is, it must be evidence from which a jury composed 

of reasonable persons could conclude that the facts underlying the particular instruction 

exist.’ [Citations.]” (Souza, supra, 54 Cal.4th at p. 116.) “On appeal, we review 

independently the question whether the trial court improperly failed to instruct on a lesser 

included offense. [Citation.]” (Id. at p. 113.)

“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 
9

he was in imminent danger of death or great bodily injury, the defendant is deemed to 

have acted without malice and thus can be convicted of no crime greater than voluntary 

manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771 (Christian S.).)

“[T]he doctrine [of imperfect self-defense] is narrow. It requires without 

exception that the defendant must have had an actual belief in the need for selfdefense. . . . Fear of future harm—no matter how great the fear and no matter how great 

the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent

danger to life or great bodily injury. ‘ “[T]he peril must appear to the defendant as 

immediate and present and not prospective or even in the near future. An imminent peril 

is one that, from appearances, must be instantly dealt with.” ’ ” (Christian S., supra, 7 

Cal.4th at p. 783.)

Since defendant did not testify, his actual belief must be determined from the 

circumstantial evidence in the record. (See People v. Falck (1997) 52 Cal.App.4th 287, 

299 [intent can be inferred from circumstantial evidence].)

Defendant contends an imperfect self-defense instruction was warranted based on 

the following facts. First, Milligan had engaged in threatening gang behavior by being 

present in a Sureño area while wearing red, by issuing a verbal challenge, and by flashing 

gang tattoos. Second, Milligan walked towards defendant when defendant was 

approaching. Third, Milligan and defendant had very recently discussed fighting.

We disagree that the above facts provided substantial evidence that defendant 

killed Milligan because he actually believed he was in imminent peril. (See Christian S., 

supra, 7 Cal.4th at p. 783.) First, Detective Cupak, the gang expert, testified that wearing 

red in a Sureño gang would be seen as an act of disrespect, such that a Sureño gang 

member might want to attack or kill the person. He did not testify that such behavior 

would be perceived as an imminent threat of death or great bodily injury to a Sureño gang 

member. Second, although Milligan walked towards defendant, nothing suggested 

defendant believed he was about to be attacked. For instance, Milligan did not display a 
10

weapon, and there was no evidence he approached defendant aggressively. Third, 

although defendant and Milligan had discussed fighting, Milligan had declined 

defendant’s challenge to go around the corner to fight, and he had walked away after 

defendant’s challenge to “do something.”

The following additional facts support our conclusion that there was no substantial 

evidence warranting a voluntary manslaughter instruction based on imperfect selfdefense. After Milligan walked away from the confrontation with defendant, defendant 

specified he was going to go after Milligan, stating, “I’m going to show him how a real 

C boy does it,” then followed Milligan. Defendant also issued a verbal challenge to 

Milligan before Milligan started walking to meet defendant. Also, before Milligan began 

walking back towards defendant, defendant started doing something around his belt area, 

from which he later pulled out the gun. When Milligan and defendant got close to one 

another, defendant asked Milligan if Jane Doe was his sister, and defendant and Milligan 

did something resembling a handshake or fist bump. And finally, defendant shot 

Milligan multiple times, including several shots fired as Milligan was running away. 

These facts showed that defendant was the aggressor and that he did not have an actual 

belief that Milligan was about to attack him.

On this record, after performing an independent review of the facts, we conclude 

that the trial court did not err in refusing to instruct the jury on voluntary manslaughter 

based on imperfect self-defense because there was no substantial evidence that defendant 

shot at Milligan in the actual belief that he was defending himself against imminent 

danger of death or great bodily injury. (See Christian S., supra, 7 Cal.4th at p. 783.)

B. CALCRIM No. 522

Defendant contends the instruction on provocation, CALCRIM No. 522, was 

incomplete and misleading. Specifically, he contends the instruction failed to explain 

that provocation has a subjective standard, failed to explain that the prosecution has the 

burden of proving the absence of provocation, and left “the role of provocation and 
11

weight” to the jury. (See People v. Jones (2014) 223 Cal.App.4th 995, 1000 (Jones) [“a 

subjective test applies to provocation as a basis to reduce malice murder from the first to 

the second degree: it inquires whether the defendant in fact committed the act because he 

was provoked”]; People v. Rios (2000) 23 Cal.4th 450, 462 [“If the issue of provocation 

or imperfect self-defense is thus ‘properly presented’ in a murder case . . . , the People

must prove beyond reasonable doubt that these circumstances were lacking in order to 

establish the murder element of malice.”].)

1. Instructions Given

Pursuant to CALCRIM No. 520, the jury was instructed, “The defendant is

charged in Count 1 with murder in violation of Penal Code Section 187.” The instruction 

specified that the People were required to prove: “[O]ne, the defendant committed an act 

that caused the death of another person. And, two, when the defendant acted, he had a 

state of mind called malice aforethought.” The instruction further provided: “If you 

decide that the defendant committed murder, it is murder of the second degree unless the 

People have proved beyond a reasonable doubt that it is murder of the first degree as 

defined in CALCRIM number 521, which is the next instruction.”

Pursuant to CALCRIM No. 521, the jury was instructed that defendant was guilty 

of first degree murder “if the People have proved that he acted willfully, deliberately and 

with premeditation.” That instruction defined the terms willfully, deliberately, and 

premeditation, and it informed the jury that “[a] decision to kill made rashly, impulsively 

or without careful consideration is not deliberate and premeditated.” The instruction also 

stated, “The People have the burden of proving beyond a reasonable doubt that the killing 

was first degree murder rather than a lesser crime. If the People have not met this 

burden, you must find the defendant not guilty of first degree murder and the murder is 

murder in the second degree.”

Pursuant to CALCRIM No. 522, the jury was instructed, “Provocation may reduce 

a murder from first degree to second degree. The weight and significance of the 
12

provocation, if any, are for you to decide. If you conclude that the defendant committed 

murder, but was provoked, consider the provocation in deciding whether the crime was 

first or second degree murder.”

Pursuant to CALCRIM No. 200, the jury was told, “Pay careful attention to all of 

these instructions and consider them together.”

2. Analysis

Defendant acknowledges that he did not object to CALCRIM No. 522 below, but 

he contends that he did not forfeit his challenge to the instruction because the instruction 

affected his substantial rights. (See § 1259.) Defendant alternatively contends his trial 

counsel was ineffective for failing to object. We will assume that no objection was 

required to preserve this instructional challenge and proceed to the merits. (See People v. 

Hernandez (2010) 183 Cal.App.4th 1327, 1331, fn. 2 (Hernandez) [addressing a similar 

challenge to CALCRIM No. 522 despite lack of an objection at trial].)

“ ‘When reviewing a supposedly ambiguous [i.e., potentially misleading] jury 

instruction, “ ‘we inquire “whether there is a reasonable likelihood that the jury has 

applied the challenged instruction in a way” that violates the Constitution.’ ” ’

[Citation.]” (People v. Ayala (2000) 24 Cal.4th 243, 289 (Ayala).) We “ ‘ “assume that 

the jurors are intelligent persons and capable of understanding and correlating all jury 

instructions which are given. [Citation.]” ’ [Citation.]” (People v. Martin (2000) 78 

Cal.App.4th 1107, 1111.) “ ‘[T]he correctness of jury instructions is to be determined 

from the entire charge of the court, not from a consideration of parts of an instruction or 

from a particular instruction.’ [Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 

192.)

The courts in Hernandez and Jones rejected arguments similar to the contentions 

defendant makes in this case. As we shall explain, we agree with the reasoning of those 

cases.
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In Hernandez, the defendant asserted that “CALCRIM No. 522 is incomplete and 

misleading because (1) it fails to specify that provocation can negate the premeditation 

and deliberation necessary for first degree murder; (2) it instructs the jury that it may 

decide the significance of the provocation; and (3) it fails to instruct the jury that 

provocation insufficient for manslaughter may be sufficient for second degree murder.” 

(Hernandez, supra, 183 Cal.App.4th at p. 1331, fn. omitted.) In rejecting these 

arguments, the Hernandez court found it significant that, pursuant to CALCRIM No. 521, 

the jury had been instructed “that a rash, impulsive decision to kill is not deliberate and 

premeditated.” (Hernandez, supra, at p. 1334.) The court also held that CALCRIM 

No. 522’s reference to the “weight and significance” of the provocation informed the jury 

that it was to determine whether the defendant was “provoked enough to create a doubt as 

to whether the offense was deliberate, premeditated first degree murder rather than a rash, 

impulsive second degree murder.” (Hernandez, supra, at pp. 1334-1335.)

In Jones, the defendant contended that the jury instructions on the doctrine of 

provocation (including CALCRIM No. 522) were misleading because they did not 

explicitly “inform the jury that the objective standard applies only for reduction of 

murder to voluntary manslaughter, and does not apply to reduce first to second degree 

murder.” (Jones, supra, 223 Cal.App.4th at p. 999.) Citing Hernandez, the Jones court 

held that “CALCRIM Nos. 521 and 522, taken together, informed jurors that 

‘provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this 

in turn shows no premeditation and deliberation.’ [Citation.]” (Jones, supra, at p. 1001.)

In this case, we find no “reasonable likelihood” that, under the instructions given,

the jury would believe that provocation was to be judged by a solely objective standard or 

that defendant had the burden of proof on that issue. (See Ayala, supra, 24 Cal.4th at 

p. 289.) CALCRIM No. 520 told the jury that defendant was guilty of second degree 

murder unless the People proved, beyond a reasonable doubt, the elements of first degree 

murder as stated in the next instruction, CALCRIM No. 521. CALCRIM No. 521 then 
14

informed the jury that defendant was guilty of first degree murder if the People proved, 

beyond a reasonable doubt, that he acted willfully, deliberately and with premeditation. 

That instruction also informed the jury that “[a] decision to kill made rashly, impulsively 

or without careful consideration is not deliberate and premeditated.” And finally, 

CALCRIM No. 522 told the jury that if it found that defendant “committed murder, but 

was provoked,” it should “consider the provocation in deciding whether the crime was 

first or second degree murder.” (Emphasis added.)

By informing the jury that it was to consider whether defendant “was provoked” 

and by stating that “[a] decision to kill made rashly, impulsively or without careful 

consideration is not deliberate and premeditated,” the instructions adequately conveyed 

to the jury that a subjective standard applied to the question of provocation. (See Jones, 

supra, 223 Cal.App.4th at p. 1001.) By stating that the “weight and significance” of the 

provocation was for the jury to decide, when considered with the other instructions, 

CALCRIM No. 522 told the jury to determine whether the defendant was “provoked 

enough to create a doubt as to whether the offense was deliberate, premeditated first 

degree murder rather than a rash, impulsive second degree murder.” (Hernandez, supra,

183 Cal.App.4th at pp. 1334-1335.) And because CALCRIM Nos. 520 and 521 

repeatedly told the jury that the People had the burden of proving beyond a reasonable 

doubt the elements of first degree murder, there was no “reasonable likelihood” that the 

jury would have applied a different burden of proof to the provocation issue. (See Ayala, 

supra, 24 Cal.4th at p. 289.)

In sum, we conclude that the instruction on provocation, CALCRIM No. 522, was 

not incomplete or misleading.

C. Ineffective Assistance of Counsel/Prosecutorial Misconduct

Defendant contends that his trial counsel was ineffective for failing to object to 

prosecutorial misconduct during closing argument. He contends that the prosecutor 

misstated the facts, referred to facts not in evidence, and misstated the law of 
15

provocation. Since defendant’s trial counsel did not object to the claimed instances of 

prosecutorial misconduct, defendant asserts that his trial counsel was ineffective. (See 

People v. Dykes (2009) 46 Cal.4th 731, 757 [generally, “trial counsel’s failure to object in 

a timely manner to asserted prosecutorial misconduct . . . results in the forfeiture of the 

claim on appeal”].)

1. Proceedings Below

During argument to the jury, the prosecutor argued that defendant had acted with 

premeditation and deliberation because the rap lyrics he carried showed that he had been 

planning to kill a Norteño “for years” and because he had brought his gun, “looking for 

an opportunity.” The prosecutor argued that after deciding to kill Milligan, defendant 

yelled at Milligan as Milligan was walking away, “to get his attention,” then walked up to 

Milligan and pretended “he’s his friend.” The prosecutor asserted that before doing the 

fist bump with Milligan, defendant said, “I hit up those guys up there. Everything is 

okay.” The prosecutor argued that defendant wanted to get close to Milligan so he could 

shoot him at close range, asserting, “This is intentional, premeditated, deliberate murder.”

The prosecutor then referenced the provocation instruction. He argued, “For 

provocation to reduce this crime to a second degree murder, basically it’s got to be the 

kind of provocation that makes somebody not able to think. And they can’t have already 

planned the thing. [¶] So it does not even apply in this case. There’s no such evidence 

that there was such a traumatic, horrible event to [defendant] who had not planned to do 

anything. . . . The only way something like that would happen is if this gang member 

here walks down to his alley and he’s not armed. He’s got no loaded gun with him. He’s 

got no plan to kill Nortenos. He walks into the alley and say the victim said something 

just horrible, horrible, horrendous to him and he lost his cool. And because he didn’t 

plan it, didn’t bring a weapon, he picks up the nearest thing, which is maybe a stone. 

Crushes the guy on the head. That might maybe be provocation. [¶] That’s not what we 
16

have here. We have a plan. We have a lifelong plan to kill the enemy, to bring a loaded 

gun to shoot [his] target. Get him around the corner, lure him to [defendant].”

During closing argument, the prosecutor referenced the defense argument that the 

jury could find provocation based on Milligan’s presence in the Sureño area, saying, 

“Let’s blame the victim for wearing red. That’s not provocation. It’s not a bullfight. 

Wearing a color that that man doesn’t like isn’t a license for him to kill you. Being in a 

place that that man doesn’t want you to be in isn’t a license for him to kill you. Talking 

back to that man isn’t a license for him to kill you. That is not legal provocation.”

Defendant’s trial counsel did not object during the above portions of the 

prosecutor’s argument.

2. Legal Standards

“The standards under which we evaluate prosecutorial misconduct may be 

summarized as follows. A prosecutor’s conduct violates the Fourteenth Amendment to 

the federal Constitution when it infects the trial with such unfairness as to make the 

conviction a denial of due process. Conduct by a prosecutor that does not render a 

criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it 

involves the use of deceptive or reprehensible methods to attempt to persuade either the 

trial court or the jury. Furthermore, and particularly pertinent here, when the claim 

focuses upon comments made by the prosecutor before the jury, the question is whether 

there is a reasonable likelihood that the jury construed or applied any of the complainedof remarks in an objectionable fashion. [Citation.]” (People v. Morales (2001) 25 

Cal.4th 34, 44 (Morales).)

To prevail on an ineffective assistance of counsel claim, the defendant must show 

that (1) “counsel’s performance fell below a standard of reasonable competence” and 

(2) “prejudice resulted.” (People v. Anderson (2001) 25 Cal.4th 543, 569; Strickland v. 

Washington (1984) 466 U.S. 668, 687-688 (Strickland).) To show prejudice, “[t]he 

defendant must show that there is a reasonable probability that, but for counsel’s 
17

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” (Strickland, supra, at p. 694.)

3. Alleged Factual Misstatements

Defendant claims that the prosecutor committed misconduct by misstating certain 

facts concerning the interaction between defendant and Milligan just prior to the 

shooting.

“At closing argument a party is entitled both to discuss the evidence and to 

comment on reasonable inferences that may be drawn therefrom. [Citation.]” However, 

it is misconduct for a prosecutor to argue facts not in evidence “because such statements 

‘tend[ ] to make the prosecutor his [or her] own witness—offering unsworn testimony not 

subject to cross-examination.’ ” (People v. Hill (1998) 17 Cal.4th 800, 828 (Hill).)

Defendant first contends the prosecutor misstated the facts when he argued that 

defendant yelled at Milligan “to get his attention,” then walked up to Milligan and 

pretended “he’s his friend.” Defendant asserts that the prosecutor thereby improperly 

suggested that “Milligan returned based on a belief that Murillo was offering 

reconciliation or a friendly encounter.”

Having reviewed the record, we find nothing improper in the prosecutor’s 

statements. John Doe No. 1 testified that as defendant followed Murillo and Jane Doe, 

who were walking away, defendant called out, “Sup what,” to get their attention. 

Jane Doe testified that she saw defendant and Milligan shake hands or do a fist bump. 

The gang expert, Officer Cupak, testified that a Sureño gang member may try to lure a 

victim in by greeting him and shaking his hand. From this evidence, it was a “reasonable 

inference[]” that defendant was pretending to reconcile or be friendly to Milligan just 

before the shooting. (See Hill, supra, 17 Cal.4th at p. 828.)

Defendant next contends the prosecutor misstated the facts by stating that before 

doing the fist bump with Milligan, defendant said, “I hit up those guys up there. 
18

Everything is okay.” Defendant points out that the prosecutor also suggested that 

defendant made such a statement, by asking the gang expert his opinion about a 

hypothetical situation in which one gang member called out that he “hit up some other 

guys back there.” Defendant asserts that he “never made such assuring statements” to 

Milligan.

As the Attorney General concedes, the record does not contain any evidence that 

defendant made any statement to Milligan similar to, “I hit up those guys up there. 

Everything is okay.” However, this was a misstatement of fact that does not support a 

finding of prejudice. As noted above, other evidence supported the inference that 

defendant was pretending to reconcile or be friendly to Milligan just before the shooting: 

defendant’s attempt to get the attention of Murillo and Jane Doe as they walked away, the 

hand shake or fist bump, and the gang expert’s testimony that a Sureño gang member 

may try to lure a victim in by greeting him and shaking his hand. Moreover, the jury was 

instructed that it was for the jury “alone to decide what happened based only on the 

evidence that has been presented . . . in this trial” (see CALCRIM No. 200) and that 

“[n]othing that the attorneys say is evidence” (see CALCRIM No. 222). Defendant has 

not shown “a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 

694; see People v. Williams (1997) 16 Cal.4th 153, 222 [counsel’s failure to object to 

prosecutor’s “minor factual misstatement” did not constitute ineffective assistance].)

4. Alleged Misstatements of Law

Defendant contends the prosecutor committed misconduct in several respects 

when discussing the law of provocation.

“[I]it is improper for the prosecutor to misstate the law generally [citation], and 

particularly to attempt to absolve the prosecution from its prima facie obligation to 

overcome reasonable doubt on all elements [citation].” (People v. Marshall (1996) 13 

Cal.4th 799, 831.)
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First, defendant claims the prosecutor improperly suggested that provocation 

cannot exist if the defendant carried a weapon. In context, there is no “reasonable 

likelihood” that the jury understood the prosecutor to be making such an argument. (See

Morales, supra, 25 Cal.4th at p. 44.) The prosecutor contrasted the hypothetical situation 

of a gang member who had “no loaded gun with him” and “no plan to kill Nortenos” with 

this case, in which defendant had “a lifelong plan to kill the enemy, to bring a loaded gun 

to shoot [his] target.” As the Attorney General asserts, this argument was not improper 

because “evidence of planning is inconsistent with provocation.” (See People v. Wharton

(1991) 53 Cal.3d 522, 572 [“planning and deliberate action” is inconsistent with “having 

acted under the heat of passion” even after “provocatory conduct”].)

Second, defendant claims the prosecutor improperly told the jury that the trial 

court would provide an instruction about “legal provocation.” However, the prosecutor 

did not use that phrase when discussing the trial court’s instruction. The prosecutor told 

the jury that the trial court would be giving the jury “an instruction about provocation,” 

which was correct, since the trial court instructed the jury pursuant to CALCRIM 

No. 522.

Third, defendant contends the prosecutor misstated the law of provocation by 

telling the jury that provocation had to “make[] somebody not able to think.” Defendant 

argues that this overstated the legal standard, which is that provocation must “preclude[]

the defendant from deliberating.” (See People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 

1295.) Even assuming that the prosecutor’s description of provocation was an 

overstatement, defendant has not shown a reasonable likelihood that the jury misapplied 

the law because of the prosecutor’s argument. The jury was instructed to “follow the 

law” as provided in the trial court’s instructions, which fully set forth and explained the 

requirements of premeditation and deliberation as necessary for a first degree murder 

verdict. (See CALCRIM Nos. 200, 520, 521.) The jury was also instructed that if “the 

attorneys’ comments on the law” conflicted with the trial court’s instructions, the jury 
20

was required to follow the instructions. We presume the jury followed these instructions 

and applied the proper standards when determining defendant’s mental state. (See 

People v. Najera (2006) 138 Cal.App.4th 212, 224.)

Fourth, defendant contends that by speaking in terms of provocation’s effect on 

“somebody” rather than defendant, the prosecutor erroneously implied that provocation is 

judged by an objective standard. We disagree. The prosecutor told the jury that 

provocation had to be “the kind of provocation that makes somebody not able to think.” 

By using the word “makes,” the prosecutor correctly informed the jury that the standard 

was subjective—i.e., that provocation had to actually cause a particular mental state. 

Nothing in the prosecutor’s argument suggested that the jury was to apply an objective, 

reasonable person standard to the determination of whether defendant was provoked into 

killing Milligan.

Fifth, defendant contends that the prosecutor improperly told the jury that 

provocation must be caused by a “traumatic, horrible event.” Defendant asserts that the 

prosecutor’s argument suggested the jury was foreclosed from finding provocation based 

on “words alone.” However, as the Attorney General points out, the prosecutor explicitly 

told the jury that words alone—such as when the victim says “something just horrible, 

horrible, horrendous”—can support a finding of provocation. Moreover, in context, the 

prosecutor’s argument amounted to “ ‘fair comment on the evidence,’ ” since the 

evidence reasonably supported a finding that nothing Milligan said or did actually caused 

defendant to be provoked. (See People v. Ward (2005) 36 Cal.4th 186, 215.)

Finally, defendant contends the prosecutor wrongly suggested that provocation 

was a defense that would excuse defendant from responsibility, by calling it a “license to 

kill.” We disagree. At no time did the prosecutor argue that defendant would escape 

conviction or punishment if the jury found that he was provoked. Moreover, even if the 

prosecutor’s remarks carried such an implication, the jury was instructed to “follow the 

law” as provided in the trial court’s instructions, which properly explained that 
21

provocation could reduce a first degree murder to second degree murder. (See 

CALCRIM Nos. 200, 520, 521, 522.)

In sum, we conclude that defendant has not shown “a reasonable probability” that 

had his trial counsel objected to the prosecutor’s alleged misstatements of law, “the result 

of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)

D. Cumulative Impact of Errors

Defendant contends the cumulative effect of the errors violated his right to a fair 

trial. (See Hill, supra, 17 Cal.4th at p. 844 [“a series of trial errors, though independently 

harmless, may in some circumstances rise by accretion to the level of reversible and 

prejudicial error”].) We have concluded that the trial court did not err by refusing to 

instruct the jury on voluntary manslaughter based on imperfect self-defense; that the 

instruction on provocation, CALCRIM No. 522, was not incomplete or misleading; and 

that defendant’s trial counsel was not ineffective for failing to object to the asserted 

prosecutorial misconduct. Therefore, there are no errors to cumulate.

IV. DISPOSITION

The judgment is affirmed.
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BAMATTRE-MANOUKIAN, J.

WE CONCUR:

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ELIA, ACTING P.J.

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MIHARA, J.