Filed 8/16/16 P. v. Liu CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN LIU,

Defendant and Appellant.

 B266352

 (Los Angeles County

 Super. Ct. No. KA103107)

APPEAL from a judgment of the Superior Court of Los Angeles County.

George Genesta, Judge. Affirmed.

Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and 

David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

__________________
2

In an information filed by the Los Angeles County District Attorney, defendant 

and appellant Kevin Liu was charged with attempted willful, deliberate, and premeditated

murder (Pen. Code, §§ 664/187, subd. (a); counts 1 & 2);

1 assault with a firearm (§ 245, 

subd. (a)(2); counts 3 & 4); possession of a silencer (§ 33410; count 5); first degree 

residential burglary (§ 459; count 6); and criminal threats (§ 422, subd. (a); counts 7 & 

8). It was further alleged that defendant personally used a firearm as to counts 1 and 2 

(§ 12022.53, subds. (b) & (c)) and as to counts 3, 4, 6, 7, and 8 (§ 12022.5, subd. (a)). 

Following trial, the jury found defendant guilty of the attempted murder of Martin 

Sandoval (Sandoval) on count 2 and the willful and deliberate allegation was found not 

true. The jury also found as to count 2 that defendant personally used a firearm 

(§ 12022.53, subd. (b)), but found the section 12022.53, subdivision (c), allegation not 

true. Finally, the jury found defendant guilty on counts 3, 4, 5, and 8, and found the 

firearm allegations true. It found defendant not guilty on counts 1, 6, and 7.

The trial court sentenced defendant to a total term of 20 years in state prison.

Defendant timely appeals. He assigns the following errors: (1) The trial court 

erred in refusing a heat of passion instruction; (2) The trial court should have allowed the 

defense psychiatric expert to testify about defendant’s mental condition; (3) The trial 

court improperly excluded testimony that Sandoval had been accused of molesting 

defendant’s daughter; and (4) The prosecutor committed misconduct by eliciting 

testimony that defendant’s wife, Nancy Liu (Nancy),2 had cancer.

We affirm.

FACTUAL BACKGROUND

I. Prosecution Evidence

Defendant and Nancy married in 1988 and had three children. In 2005, Nancy 

told defendant that she wanted to separate. She agreed to stay with defendant in their 

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

2 We refer to various related persons by their first names, not from disrespect, but to 

avoid confusion.
3

house in Perris for financial reasons and for the children, but she made preparations for 

divorce. Nancy and defendant both worked at Morongo Casino; they had different shifts 

and different times. At work, they shared a locker, in which they had to put all of their 

personal belongings while working.

In 2009, Nancy began dating Sandoval, who also worked at the casino. When 

they started dating, Sandoval was aware that she was living with her husband, but he 

understood that Nancy and defendant were separated. Nancy continued having sexual 

relations with defendant up until 2013 because she believed it was the only way to keep 

peace in her house. In January 2013, Nancy told defendant that she was dating Sandoval.

Two months later, Nancy filed for divorce3 and moved in with a friend. During 

that time, she received several “terrifying” telephone calls from defendant. He often 

called 20 or 30 times a day. She did not report his threats to the police because they both 

would have lost their jobs. She explained that, in the gaming industry, any instance of 

harassment or domestic violence could cause a casino to terminate employment. Nancy 

spoke to her family and asked a friend who was a police officer to talk to defendant about 

his threats. Once, defendant called while he was outside her residence, even though she 

had never told him where she was living.

Nancy began to record defendant’s telephone calls in late March or early April 

2013. Two were played for the jury. One day, at around 4:00 a.m., defendant told Nancy 

that she was “never going to leave” him. When she replied that she was divorcing him, 

defendant said: “Let’s see over my dead body honey. [¶] . . . [¶] I’m going to fucking 

hurt everybody.” He later said, “I will follow you and I will get him, honey. . . . Good 

luck to him and good luck to his fucking family. . . . This is the fucking last warning for 

him. . . . I could have fucking hurt him today.” That night, in another telephone call, 

defendant told Nancy that Sandoval had ruined his life and that he would ruin Sandoval’s 

life. Defendant stated: “I am going to firkin’ kill him yester—last night” and that 

Sandoval was “lucky last night.” Defendant also told Nancy: “He will be dead. [¶] . . . 

3 The divorce became final in September 2013.
4

[¶] He is fucking my wife and I am going to kill him. I have all the fucking right to do 

that.” He then told Nancy that he had parked in front of her house that day but did not do 

anything to her. She asked him about lock ties4that she had discovered under his pillow 

and he just replied “Okay.” 

A few months later, Nancy moved into an apartment in La Puente. She did not tell

defendant where she was living because she feared for her life. When she got off work at 

4:00 a.m., she drove around her neighborhood for a while to make sure that she was not 

being followed. No one other than Nancy had keys to her apartment; neither Sandoval 

nor defendant had ever stayed the night at her place. 

Sometime before September, defendant called Sandoval and accused him of 

“‘screwing [his] wife.’” Sandoval told defendant that he and Nancy were dating and that 

Nancy had said that there was nothing going on between her and defendant. Defendant 

became upset and angrily told Sandoval to stay away from Nancy. He threatened 

Sandoval if he did not stop contacting Nancy, saying: “‘If I ever see you, I’ll kill you.’” 

Sandoval was scared and told Nancy about the telephone call.

Sometime in late August, defendant called Nancy and told her that he was 

overwhelmed with a family issue. He said that he was “going to kill everybody” if she 

did not go back to his house in Perris and take care of it. Nancy went to the house and 

stayed for about four days. She and defendant did not have any reconciliation talks. At 

the time, Sandoval was in Mexico. 

On September 6, 2013, Nancy and Sandoval returned to her apartment after going 

shopping. Sandoval put the items they had purchased on the bed and gave Nancy a hug. 

Defendant emerged from the bathroom and pointed a gun with a homemade silencer at 

them. He said, “‘I going to kill you,’” several times. Sandoval believed that defendant 

was going to kill him, and he was scared for himself and Nancy.

4 Nancy acknowledged that she and defendant had used scarves as tie devices 

during sex, but she never saw plastic lock ties before finding them under defendant’s 

pillow. 
5

Defendant told Sandoval to sit, and he sat on the bed. Nancy was facing defendant 

and told Sandoval not to sit. Sandoval stood up. Defendant pointed the gun at Nancy 

and said, “‘I told you both that if you made me crazy, this was going to happen. I’m 

going to kill you both.’” Nancy told defendant that she and defendant were not together 

and that Sandoval had nothing to do with their relationship. She begged him to stop and 

not hurt anyone. When defendant pointed the gun at Sandoval, Nancy moved in front of 

him. Defendant pushed her out of the way and Sandoval lunged at him. Sandoval 

grabbed defendant’s right wrist with his left hand. The gun discharged and made a “pop” 

sound. Sandoval and defendant fell to the floor and the gun fell out of reach. When 

defendant reached for the gun, Sandoval pulled him away and held him down. They both 

fell back onto the bed. Nancy went outside and called 9-1-1. 

Jacob Rico (Rico), Nancy’s neighbor, saw Nancy yelling into a cell phone that “he 

has a gun.” She pointed toward her apartment. Through the open door, Rico saw 

defendant and Sandoval struggling on a bed. Sandoval was holding defendant’s arms and 

neck from behind. Rico ran into the room and helped restrain defendant until deputies 

arrived. Sandoval sustained minor injuries to his forehead from the struggle. 

Deputies took defendant into custody. As he was being searched, defendant said, 

“‘I was going to shoot that motherfucker because he was sleeping with my wife.’” 

Deputies found a loaded gun magazine and 69 rounds of nine-millimeter ammunition in 

his pockets. They also found on his person a key that matched Nancy’s front door.

A loaded Smith and Wesson nine-millimeter handgun with a blue cylinder 

attached to the muzzle was on the bathroom floor, along with an expended shell casing. 

The handgun had an aftermarket threaded barrel that allowed for the blue silencer to be 

attached. The silencer had been made from an oil filter. Forensic analyst Amanda Davis 

examined the gun and found that it had functioning safety mechanisms and a trigger pull 

of five and three-quarters pounds. There was a bullet hole by the mirror in the bathroom. 

The nine-millimeter bullet was found in Rico’s next-door apartment. 

Deputies also found a black bag inside the apartment next to the bed. It contained 

plastic zip ties and a wire cutter. The zip ties were tied together to form two handcuffs 
6

with another tie linking them together. The bag and its contents did not belong to Nancy. 

There were no signs of forced entry into the apartment. 

A vehicle belonging to defendant was parked a few blocks away. A pink gym bag 

was in the trunk and contained two oil filter canisters, an empty box of ammunition, 

pliers, a wood stick, rope, packaging tape, and a red bag with washers and gloves. Nancy 

had previously left this gym bag at the Perris house, but none of the items in the bag 

belonged to her. 

Defendant had purchased the gun on August 5, 2013, and picked it up nearly two 

weeks later. The gun store manager had showed him how to use it properly. Defendant 

took his son to a firing range in August. Defendant had previously been issued a 

handgun safety certificate card on June 20, 2013.

After defendant was arrested, Nancy removed a safe containing her jewelry from 

the Perris house.

II. Defense Evidence

Defendant testified that in January 2013, Nancy told him that she was having an 

affair. He was hurt, angry, and depressed. In March, she moved out of their Perris home 

and filed for divorce. In March or April, defendant made threats to hurt people, but he 

never acted on them. He admitted to making the threatening phone calls to Nancy and he 

wanted her to feel scared. He lied on the phone when he told her that he was outside her 

residence. 

Defendant and Nancy had been having sexual relations until 2013. They 

sometimes used items such as scarves for tying, but they never used zip ties. Once, 

defendant tried to use a zip tie with Nancy, but she would not let him.

Defendant bought a handgun in August and sometimes went to a shooting range. 

He bought the silencer canisters online as aftermarket attachments. He used them on the 

gun because he sometimes went shooting in the desert. He learned online how to put the 

silencer together with various parts. He transported his gun and accessories in a Puma 

bag that he kept in his car trunk. 
7

Defendant had been to Nancy’s apartment in La Puente several times and spent 

one night there in August. Nancy gave him the key to the apartment; he denied taking it 

from their shared locker at the casino. On August 21, 2013, he brought a black bag and 

left it at her apartment. The bag contained zip ties and ropes that they had used during 

sex. 

The last time defendant went shooting in the desert, he removed his gun from the 

trunk and brought it into the house. He did not know how the bag was placed back in the 

trunk on September 6, 2013. During the week that Nancy was at his house in August, she 

drove his car. On September 5, 2013, defendant learned that Nancy had taken a safe 

from the house. His gun and ammunition, which were in a locked case, were also 

missing. He called Nancy and she admitted that she had taken the items. 

On September 6, 2013, at around 2:30 p.m., defendant parked his car behind 

Nancy’s apartment. He went inside and searched for his items. He found the black bag, 

containing his gun, ammunition, and attachments, in the bathroom. He put the magazine 

in the gun and attached the silencer in order to make sure that everything worked. He put 

the ammunition in his pocket and walked out of the bathroom. Defendant was surprised 

when Nancy and Sandoval entered the apartment. He held the gun pointed at the floor. 

This was the first time that he had ever seen Sandoval and he was angry. But he did not 

threaten to shoot or point the gun at anyone. When he entered the apartment, he did not 

know that anyone would be there and he had no intent to hurt or kill anyone.

Nancy stood in front of Sandoval. Sandoval asked defendant what he was doing 

there, and defendant asked Sandoval what he was doing with his wife. Defendant asked 

Nancy why Sandoval was still with her and said that they needed to sit and talk. 

Sandoval approached, and defendant said: “‘I got a gun. I’m going to shoot you, you 

motherfucker.’” Nancy told defendant that they were not going to talk that day and that 

he was not going to shoot anyone. She reached for his gun, and defendant pushed her 

hand away. Sandoval charged him, slapped his hand, and grabbed for the gun. They fell 

and struggled on the floor. Sandoval picked him up and threw him on the bed. 

Defendant did not shoot the gun.
8

Defendant denied making any statement to the police while he was arrested. 

Tiffany Liu (Tiffany), defendant and Nancy’s daughter, testified that defendant 

told her sometime in 2013 that Nancy was dating Sandoval. When Nancy moved out of 

their house in March, defendant was upset and angry. He said that he wanted to hurt 

Sandoval. In late August, Nancy stayed at their house for a few days. Nancy told 

Tiffany that she was confused and wanted to keep her family together. Around that time, 

Nancy told Tiffany that defendant was with her at the apartment. Nancy told Tiffany that 

she was afraid of defendant but believed that he would never hurt her.

Nancy further told Tiffany that on September 6, 2013, she and Sandoval entered 

her apartment. Defendant was coming out of the bathroom and they argued. He said that 

she destroyed his life. Defendant was waving a gun but not pointing it at anyone. Nancy 

stood between defendant and Sandoval. When defendant moved her to the side, 

Sandoval rushed toward him and they fell to the floor. Sandoval grabbed defendant’s 

hand and the gun went off during the struggle. 

Sam Liu (Sam), defendant and Nancy’s son, testified that Nancy had told him that 

when she and Sandoval arrived at her apartment, defendant was inside with a gun. She 

stepped in front of Sandoval and told defendant that if he was going to shoot anyone, he 

should shoot her. Sandoval and defendant struggled for the gun and a shot accidentally 

fired. Earlier, defendant had taken Sam to a shooting range for practice shooting. 

Phillip Liu (Phillip), defendant’s brother, testified that Nancy had called him after 

the incident. She said that defendant was in her apartment with a gun when she and 

Sandoval arrived. She distracted him and Sandoval grabbed the gun. The gun fell to the 

floor and accidentally fired. Phillip testified that Nancy had told him that defendant 

regularly visited her at the apartment and stayed the night. Sometimes, he brought a gun 

because he was concerned that she was living alone. 

Stephen Seger (Seger), a family friend, testified that Nancy had discussed the 

incident with him by telephone. She said that she stood in front of Sandoval and told 

defendant that if he was going to hurt anyone, he should hurt her. Sandoval then pushed 
9

Nancy away and attacked defendant. Defendant and Sandoval fell to the floor and the 

gun accidentally discharged. 

John H. Pride (Pride), a firearms expert, examined defendant’s handgun. He 

found that the trigger pressure was within the acceptable range for this firearm. The blue 

cylinder was a silencer that was illegal to own in California. Pride explained that there 

were situations where the gun could be fired accidentally, such as during a struggle. 

Where someone grabs the wrist of a person holding a gun, it might cause the person to 

accidentally pull the trigger. The firearm evidence was consistent with both an 

intentional and unintentional firing. The silencer attachment might explain why there 

was not a round in the chamber when the gun was fired.

III. Prosecution Rebuttal Evidence

Thuy Lien Nguyen Gomez (Gomez), who had been dating Sam, lived at 

defendant’s house for a time. Defendant found out about Nancy’s relationship with 

Sandoval in January after going through Nancy’s cell phone. He said that if Nancy was 

still seeing Sandoval, he was “dead to him.” In June 2013, defendant showed Gomez a 

photograph of Sandoval and asked her if it was him; she said yes. Once, Nancy asked her 

to stay outside the bedroom while she and defendant argued because she was concerned 

that he might do something. Nancy told Gomez that she still had sex with defendant to 

“keep peace.” 

Nancy told Gomez that on September 6, 2013, defendant exited the bathroom with 

a gun and waved it around, and said that Sandoval had ruined his life. Defendant pushed 

Nancy away and Sandoval rushed defendant to get the gun. As they struggled, the gun 

fired.

DISCUSSION

I. The trial court properly did not instruct the jury on voluntary manslaughter

Defendant argues that the trial court erred when it refused a heat of passion 

instruction. 
10

A. Relevant Proceedings

During trial, the defense indicated that it would request that the trial court instruct 

the jury on the lesser included offense of attempted voluntary manslaughter. The trial 

court stated that it would so instruct if substantial evidence of heat of passion or sudden 

quarrel was presented at trial. 

After defendant testified, the trial court indicated that there was no evidence of any 

lesser included offense to the attempted murder charges in counts 1 and 2. The trial court 

noted that defendant presented an absolute defense, namely that he never pointed the gun 

at anyone and that it discharged accidentally. Because there was no intent to kill 

inferable from the defense evidence, there could be no attempted voluntary manslaughter 

offense, since that offense requires an intent to kill. Accordingly, the trial court denied 

defendant’s request for an instruction on attempted voluntary manslaughter.

B. Analysis

Courts have a sua sponte duty to instruct on lesser included offenses when the 

offense is supported by substantial evidence, which, if accepted, would permit the jury to 

find the defendant not guilty of the greater offense and guilty of the lesser offense. 

(People v. Breverman (1998) 19 Cal.4th 142, 148–149.) A trial court need not instruct 

the jury on a lesser included offense where no evidence supports a finding that the 

offense was anything less than the crime charged. (People v. Gutierrez (2009) 45 Cal.4th 

789, 826.)

Voluntary manslaughter is a lesser included offense of murder when the requisite 

mental element of malice is negated by a sudden quarrel or heat of passion or by an 

unreasonable but good faith belief in the necessity of self-defense. (People v. Elmore

(2014) 59 Cal.4th 121, 133; see also § 192.) Attempted voluntary manslaughter is a 

lesser included offense of attempted murder. (People v. Thompkins (1987) 195 

Cal.App.3d 244, 255–256.)

Here, the prosecution presented evidence of attempted murder—defendant was 

angry and upset when he learned of Nancy’s affair with Sandoval; defendant threatened 

to kill Sandoval and others; defendant had purchased a handgun one month before the 
11

instant shooting; defendant modified that handgun illegally with a homemade silencer; 

defendant entered Nancy’s apartment without permission, pointed the gun at Nancy and 

Sandoval, and discharged the gun during a struggle. There was no evidence of sufficient 

provocation resulting from a sudden quarrel or heat of passion.

Defendant claims that he “acted under the influence of a stirring passion, the 

humiliation and distress of seeing his wife’s lover for the first time, not only face to face, 

but embracing her in the small studio apartment near her bed.” But there is no evidence 

that the confrontation and the embrace led to a heat of passion that negated his intent to 

kill. He had known for at least eight months that Nancy was seeing someone else. She 

had filed for divorce in March and it was set to become final on September 14, 2013. 

And, he had seen a photograph of Sandoval three months before the shooting. Taken 

together, this evidence confirms that defendant’s anger and emotions that drove his 

actions emerged long before the shooting; they did not arise out of a sudden quarrel or 

heat of passion.

Defendant’s testimony also did not support an instruction on attempted voluntary 

manslaughter. Rather, as the trial court noted, his testimony supported a complete 

defense to the attempted murder charges.

Defendant’s reliance upon People v. Millbrook (2014) 222 Cal.App.4th 1122 

(Millbrook) and People v. Thomas (2013) 218 Cal.App.4th 630 (Thomas) is misplaced. 

In Millbrook, there was evidence that the defendant was acting under the actual influence 

of extreme emotion. (Millbrook, supra, at pp. 1139–1140.) Likewise, in Thomas, the 

defendant shot the victim; at trial, he testified that he pulled the trigger out of fear and 

nervousness. (Thomas, supra, at p. 645.) In contrast, here there is no evidence that 

defendant acted under a heat of passion or other emotion. Rather, defendant’s contention 

at trial was that the gun discharged accidentally.

It follows that the trial court did not err in refusing to give an attempted voluntary 

manslaughter instruction and that defendant was not deprived of his due process rights. 
12

II. The trial court properly excluded psychiatric expert testimony as to defendant’s

mental state

Defendant argues that the trial court erred when it excluded the defense psychiatric 

expert to testify about his mental condition.

A. Relevant Proceedings

Before trial, the prosecutor moved to exclude the proffered testimony of 

Dr. Ronald Markman regarding defendant’s mental state and how people typically react 

to certain provocation. Later, defense counsel made an offer of proof. According to 

Dr. Markman: “The behavior that led to [defendant’s] arrest was clearly the result of an 

overwhelming sense of being rejected by his wife, which likely initiated feelings of 

inadequacy and worthlessness. This emotional instability also unleashed an 

uncontrollable anger potential that resulted in a lack of judgment, thoughtlessness and 

impulsive behavior controlled by emotions, consistent with an event occurring in the heat 

of passion.” Relying upon People v. Czahara (1988) 203 Cal.App.3d 1468 (Czahara), 

the trial court precluded Dr. Markman from testifying.

B. Analysis

An expert witness may offer opinion testimony if the subject is sufficiently beyond 

common experience that it would assist the trier of fact. (Evid. Code, § 801.) A trial 

court has broad discretion to determine the admissibility of expert testimony, and its 

ruling is reviewed for an abuse of that discretion. (People v. McDowell (2012) 54 Cal.4th 

395, 426.)

Here, the trial court did not err in excluding Dr. Markman’s testimony. As set 

forth above, there is no evidence that defendant committed the instant offenses under a 

heat of passion or sudden quarrel. In fact, defendant testified that the shooting was 

accidental. Thus, Dr. Markman’s testimony would have been irrelevant to the jury’s 

determination of whether defendant had the intent to kill when he shot at Sandoval.

Defendant claims that the expert testimony would have been relevant to show that 

he was under a tremendous amount of stress from the affair and divorce. But this type of 
13

evidence does not require expert testimony; the emotional effects of divorce are within 

the common experience of jurors. (Czahara, supra, 203 Cal.App.3d at p. 1478.)

Moreover, defendant was not denied the opportunity to present a defense. He was 

fully allowed to, and did, present a defense of accident and lack of intent to kill. Thus, 

defendant’s constitutional contention is meritless. 

III. The trial court properly excluded evidence of defendant’s allegation that Sandoval 

molested his daughter

Defendant argues that the trial court improperly excluded testimony that Sandoval 

was accused of molesting defendant’s daughter Jasmine.

A. Relevant Proceedings

During cross-examination, defense counsel asked Sandoval if he was aware that 

there was an allegation against him concerning Jasmine, defendant’s daughter. 

Following the prosecutor’s objection, defense counsel contended that there were 

allegations against Sandoval for “potential[]” molestation during defendant and Nancy’s 

divorce proceedings. Therefore, this questioning was relevant to Sandoval’s mental state, 

motive, and credibility. After all, Sandoval might have been angry because of the 

accusation and reacted upon seeing defendant in the apartment. The trial court allowed 

defense counsel to ask Sandoval if there were any arguments between him and defendant 

in any capacity. But the trial court precluded the defense attorney from specifically 

asking about any molestation allegation, pursuant to Evidence Code section 352.

B. Analysis

Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is 

evidence “having any tendency in reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action.” (Evid. Code, § 210.) “‘The test of 

relevance is whether the evidence tends ‘“logically, naturally, and by reasonable 

inference” to establish disputed material facts such as identity, intent, or motive. 

[Citation.]’” (People v. Carter (2005) 36 Cal.4th 1114, 1166.)

The trial court has broad discretion in determining the relevance of evidence, but 

lacks discretion to admit irrelevant evidence. (People v. Carter, supra, 36 Cal.4th at 
14

pp. 1166–1167.) A trial court’s exercise of discretion in excluding evidence is reviewed 

for abuse of discretion, and “the [trial] court’s exercise of discretion will not be disturbed 

on appeal except upon a showing that it was exercised in an arbitrary, capricious, or 

patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. 

Brown (2011) 192 Cal.App.4th 1222, 1233.)

Here, the evidence concerning the accusation was irrelevant to the issues at trial. 

Whether there was an accusation against Sandoval concerning defendant’s daughter had 

no relevance to defendant’s actions during the incident. Sandoval testified that there was 

no argument between the parties other than that concerning defendant pointing a gun at 

them and saying that he was going to shoot Sandoval for dating Nancy. Moreover, 

defendant did not testify that he was motivated by any molestation accusation against 

Sandoval; rather, he testified that his presence in the apartment with Nancy and Sandoval 

and the discharge of the gun were accidental and not driven by emotion. While defendant 

testified that he was hurt and angry, those emotions were directed at Nancy and Sandoval 

for their affair, not the result of any unsubstantiated allegation of molestation.

Moreover, there was no credible evidence of any molestation accusation. Defense 

counsel’s theory was based upon a therapist’s letter, which the trial court noted had 

nothing to do with molestation; “[t]hat was counsel’s surmising. . . . [¶] . . . ¶] It was 

counsel’s fertile imagination that it was somehow related to molestation, but there was 

nothing explicit.” 

Under these circumstances, allowing defense counsel’s question about a 

molestation accusation would have been far more prejudicial than probative. (Evid. 

Code, § 352.) It follows that the trial court did not abuse its discretion in excluding it.

IV. The prosecutor did not err by eliciting testimony that Nancy had cancer

Defendant contends that the prosecutor committed misconduct when he elicited 

testimony that Nancy had cancer. 

A. Relevant Proceedings

On direct examination, the prosecutor began by asking Nancy if she was currently 

undergoing treatment for cancer. Following a defense objection on the grounds of 
15

relevance, the prosecutor explained that her treatment was relevant to her mental state “in 

regards to testifying.” The trial court overruled the objection and asked Nancy if she was 

taking any medication as a result of her treatment. She answered affirmatively and stated 

that she would do her best to think and answer questions. 

During a recess, the trial court noted to the prosecutor that “the proper way to 

introduce a witness who may be under medication is to simply ask, are you currently 

taking medication? Yes. If so, does that have an effect on what she is saying here today. 

If she says yes, what type of effects does it have on you. You don’t have to get into why 

she was taking medication or anything else to appeal to the sympathy of the jury, in terms 

of this particular witness. [¶] The court has already admonished this jury during the jury 

selection that—repeatedly, that whatever empathy or sympathy they have with the 

witness, it’s going to be an evidence-based decision and evidence-based decision only. 

You know better than that. There’s a way to approach that subject without getting into 

the issue of why she’s taking medication or even identifying the medication . . . .” The 

trial court further advised that if medication causes a witness to get tired and need breaks 

or need an opportunity to refresh himself or herself, then the trial court would 

accommodate. 

Defense counsel then moved for a mistrial: “To be honest, I don’t think anything 

can be more prejudicial and have passion or sympathy for a jury. I understand the court 

painstakingly tried, at least for the defense, to say it’s an emotionless based decision, and 

then we have this. You can’t unring that bell. [¶] And my dad died of cancer, so I can’t 

believe it was asked, but I wanted to throw that in, too.”

Noting that the jury was an intelligent jury, the trial court denied the motion. 

When Nancy resumed her testimony, she stated that she moved to that particular 

apartment because it was closer to the medical office for her chemotherapy and radiation 

treatments. 

After Nancy finished her testimony, the trial court instructed the jurors: “At the 

outset of witness’s testimony, it was mentioned of her medical condition, and the fact that 

she’s taking medication. That is only relevant in terms of whether she is competent to 
16

testify and whether the medication affects her stamina or ability to testify. But as I told 

you at the outset of this trial during jury selection, this decision will be made based upon 

the evidence. It’s not going to be an emotional-based [decision]. It’s not going to be a[n] 

empathy-based decision or sympathy-based decision.” 

Nancy returned to testify the following day. She stated that on the morning of the 

shooting, she had a biopsy done at a laboratory. She also said that she told her children in 

2014 that her cancer was in remission, but she was actually still undergoing treatment; 

she only told her children that the cancer was in remission so they would not be 

concerned.

B. Forfeiture

Generally, a defendant forfeits a claim of prosecutorial misconduct unless the 

defendant makes a specific objection to the argument in the trial court and requests that 

the jury be admonished to disregard it. (People v. Jackson (2014) 58 Cal.4th 724, 762; 

see also People v. Reyes (2016) 246 Cal.App.4th 62, 76–77.) “Counsel has an obligation 

to state the ‘specific ground for an objection in order to preserve the issue for appeal.’ 

[Citations.]” (Id. at p. 77.)

Here, defense counsel preserved defendant’s claim of evidentiary error as to the

admission of Nancy’s medical condition, but he failed to object to the prosecutor’s 

question as misconduct. Accordingly, he has forfeited his prosecutorial misconduct 

claim. (People v. Reyes, supra, 246 Cal.App.4th at p. 77 [“Counsel forfeited any claim of 

prosecutorial misconduct in connection with these remarks by failing to assign 

misconduct to the prosecutor’s statements”].)
17

C. Analysis

Even reaching the merits of defendant’s contention, it fails. A prosecutor’s 

conduct violates the Fourteenth Amendment to the United States Constitution when it 

infects the trial with such unfairness as to make the conviction a denial of due process. 

(People v. Reyes, supra, 246 Cal.App.4th at p. 71.) That did not occur here. Nancy’s 

condition and medication were relevant to her competence and ability to testify. It 

follows that the prosecutor’s questions did not amount to misconduct.

Even if the prosecutor did err in asking Nancy about her medical condition, and 

even if that issue were preserved for appeal, defendant has not shown that there was a 

reasonable probability that the jury’s verdict would have been different. (People v. Frye

(1998) 18 Cal.4th 894, 976, overruled in part on other grounds in People v. Doolin (2009) 

45 Cal.4th 390, 421, fn. 22.) The trial court repeatedly told the jurors that they were to 

decide the case based on the evidence, not on emotions. We presume that the jurors 

understood and followed the trial court’s instructions. (People v. McKinnon (2011) 52 

Cal.4th 610, 670.) Moreover, the fact of Nancy’s cancer was admitted through her 

subsequent testimony. Thus, the jury would have learned about it anyway. Last, as set 

forth above, the evidence that defendant committed attempted murder was strong.

IV. Cumulative effect of alleged errors

Finally, defendant argues that the cumulative effect of the trial court’s errors 

violated defendant’s right to due process. As set forth above, we find no error. It follows 

that there was no cumulative prejudicial effect of any error on defendant’s right to due 

process.
18

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, Acting P. J.

ASHMANN-GERST

We concur:

______________________________, J.

CHAVEZ

______________________________, J.

HOFFSTADT