Filed 1/24/24 P. v. Segura CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

GUILLERMO ISLAS SEGURA,

Defendant and Appellant.

B317636

Los Angeles County

Super. Ct. No. VA153120-03

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Lee W. Tsao, Judge. Sentence vacated; 

remanded with instructions.

Larenda R. Delaini, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Idan Ivri and Theresa A. Patterson, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

The People filed an information charging Guillermo 

Islas Segura with the robbery of two victims and assault 

with a firearm. The information also alleged various firearm 

enhancements and a prior strike. Months before trial, and 

a week after newly-elected District Attorney George Gascón 

took office, the prosecutor moved to dismiss the firearm and 

strike prior allegations based on Gascón’s “Special Directive 

20-08.” The court denied the motion. The case went to trial, 

and the jury convicted Islas Segura as charged and found true 

the enhancement allegations. 

On appeal, relying on Nazir v. Superior Court (2022) 79 

Cal.App.5th 478 (Nazir), decided by our colleagues in Division 

Seven, Islas Segura argues the court erroneously believed it 

could not rely on the district attorney’s special directive to grant 

the People’s motion to dismiss.1 He also argues the prosecutor 

committed misconduct by referring to a Christmas snow globe 

during closing argument. We reject Islas Segura’s misconduct 

argument, but we agree with him that Nazir counsels us to 

remand this case for further proceedings. Accordingly, we vacate 

the sentence and remand the case for the trial court to reconsider 

the People’s motion to dismiss. We affirm in all other respects. 

FACTS AND PROCEDURAL BACKGROUND

1. Islas Segura and two cohorts rob two victims

On March 26, 2020, Michael Moreno and Mario Vargas 

were eating pizza outside a restaurant when a blue Honda Pilot 

drove up. The driver, George Penalba, pointed a revolver at 

1 Nazir was decided nearly 18 months after the trial court 

in this case denied the prosecutor’s request to dismiss the firearm 

and prior strike allegations.
3

Moreno and Vargas. Islas Segura and another man, Brandon 

Peete, got out of the car. One of the men hit Vargas in the head 

with a gun. The other man indicated he had a gun under his 

sweater and pressed it against Moreno’s body. Islas Segura and 

Peete took the victims’ phones and wallets, and then drove away 

in the Pilot. The police found the Pilot and detained Islas Segura 

later that night. In the car, the police discovered a magazine 

loaded with 15 bullets for a semiautomatic firearm.

The People charged Islas Segura, Penalba, and Peete 

with two counts of second-degree robbery (Pen. Code, § 211)2. 

The People also charged Islas Segura with assault on Vargas 

with a firearm (§ 245, subd. (a)(2)). The People alleged he used 

a firearm during the offenses within the meaning of sections 

12022.53, subdivision (b) and 12022.5, subdivision (a). The 

information also alleged Islas Segura had suffered a prior 

first degree burglary conviction (§ 459), which qualified as

both a five-year prior and a strike for purposes of the Three 

Strikes law.

2. Pretrial motions after the newly-elected district 

attorney issued his “Special Directive 20-08”

On December 14, 2020, Islas Segura appeared before 

the court with his attorney. Counsel for Penalba and Peete 

also appeared on behalf of their clients, who were not in court. 

Deputy District Attorney Nicholas Liddi appeared on behalf 

of the People.

Newly-elected District Attorney George Gascón had issued 

his “Special Directive 20-08” one week earlier, on December 7, 

2020, his first day in office. (See Association of Deputy District 

2 References to statutes are to the Penal Code.
4

Attorneys v. Gascón (2022) 79 Cal.App.5th 503, 515–516, review 

granted Aug. 31, 2022, S275478.) Gascón’s special directive 

made significant changes to his office’s Legal Policy Manual. 

(See Nazir, supra, 79 Cal.App.5th at p. 486.) The directive 

stated the District Attorney’s office would not file sentencing 

enhancement allegations in new cases, and it instructed deputy 

district attorneys to move to dismiss or withdraw enhancement 

allegations in pending cases. (Ibid.)

As justification for this new policy, the directive stated 

that “ ‘the current statutory ranges for criminal offenses alone, 

without enhancements, are sufficient to both hold people 

accountable and also to protect public safety’ and that 

‘studies show that each additional sentence year causes a 

4 to 7 percent increase in recidivism that eventually outweighs 

the incapacitation benefit.’ An appendix to Special Directive 

20-08 stated that there was no compelling evidence California’s 

100-plus sentence enhancements improved public safety, that 

such enhancements contributed to prison overcrowding, and 

that they ‘exacerbate[d] racial disparities in the justice system.’ 

The appendix also stated ‘long sentences do little’ to deter crime.” 

(Nazir, supra, 79 Cal.App.5th at p. 486.)

Penalba’s counsel told the court, “I’d like to make 

a motion to strike all allegations on behalf of Mr. Penalba.” 

Peete’s attorney stated, “To the extent that there are any special 

allegations or enhancements that relate to Mr. Peete, I request 

the deputy district attorney to abide by the directive of District 

Attorney Gascón, making a motion to dismiss any special 

allegations and enhancements.” The court inquired of Islas 

Segura’s counsel. He replied he believed the strike prior alleged 

against Islas Segura was “an enhancement under 1170.12(b) 
5

that’s contemplated by the new district attorney’s office 

directive,” adding, “I’d ask that it be stricken, both as a 

strike prior, and as a five-year prior.”3 Islas Segura’s counsel 

did not ask the court to strike or dismiss any of the three 

firearm enhancements alleged against his client.

Liddi then stated, “[A]t the direction of the District 

Attorney, George Gascón, the People join in the defendants’ 

motions to strike all alleged sentence enhancements . . . and 

move to dismiss all allegations, alleged sentence enhancements 

named in the information for all counts and all defendants.”

This exchange ensued:

“THE COURT: Okay. So is this request based only 

on the special directive, Mr. Liddi?

“MR. LIDDI: That is correct.

“THE COURT: Under 1385?

“MR. LIDDI: Yes.

“THE COURT: All right. Thank you. . . . Well, it’s 

well-settled that the court’s 

discretion to dismiss under 1385 

must be based on an individualized 

consideration of the circumstances of 

the offense and the defendant’s 

background, and that the court’s 

3 The Three Strikes law is an alternative sentencing scheme, 

not an enhancement. (People v. Burke (2023) 89 Cal.App.5th 

237, 242–244.) The next day, December 15, 2020, “the district 

attorney issued a clarification” of the special directive that 

it applied to all allegations of “prior serious or violent felony 

convictions under the three strikes law” as well. (Nazir, supra, 

79 Cal.App.5th at pp. 486–487.)
6

exercise of discretion cannot be based 

on disagreement with the law or 

antipathy with the sentencing 

scheme, so for those reasons, the 

court would be inclined to deny the 

request to dismiss.”

The court continued, “Of course, should any counsel wish 

to renew the motion based upon the factors that are traditionally 

submitted to the court for dismissal under 1385, I would welcome

—I’d be happy to consider it.” Peete’s counsel noted the 

prosecutor had failed to “articulate[ ]” the “language [in the 

special directive] that bears on the subject of good cause as to 

why the court should grant the motion to dismiss allegations 

and enhancements.” The court responded it would “incorporate” 

the special directive “into the record,” but noted it did “not 

provide any facts or circumstances specific to this case.”

3. The trial, verdict, and sentence

The People tried Islas Segura separately from his 

co-defendants in August 2021. The trial ended in a mistrial 

after the court excused several jurors for medical reasons.

The People tried the case to a second jury in November 

2021. Both victims testified at the second trial, and they 

generally agreed on the facts summarized above. However, 

they disagreed about Islas Segura’s specific role in the robberies. 

According to Moreno, Islas Segura pressed a gun against his body 

and robbed him, and Peete struck Vargas in the head with a gun. 

According to Vargas, Islas Segura struck him in the head with 

a gun, and Peete robbed Moreno. As the Attorney General notes, 

because the jury convicted Islas Segura of assault with a firearm 

on Vargas, it must have believed Vargas’s testimony that it was 
7

Islas Segura, rather than Peete, who hit him in the left temple 

with a gun.

The jury convicted Islas Segura as charged and found true 

the firearm allegations. In a bench trial, the court found true 

the prior conviction allegations.

At no time before, during, or after the first or second trials 

did either the prosecutor or Islas Segura’s counsel make any 

further motion or request to dismiss his prior strike, or to strike 

or dismiss any of the firearm enhancements.

The parties appeared for sentencing on January 14, 2022. 

The prosecutor asked the court to sentence Islas Segura to 

18 years, consisting of the midterm of three years on count 1 

(robbery of Moreno), doubled because of the strike, plus one-third 

the midterm on count 2 (robbery of Vargas), doubled, to be 

served consecutively to count 1, plus 10 years for the firearm 

enhancement (§ 12022.53, subd. (b)). The prosecutor did not 

ask the court to strike or dismiss any of the enhancements. 

Nor did defense counsel ask the court to strike or dismiss 

any enhancements.4 Counsel asked the court to sentence 

4 Defense counsel apparently never made a Romero motion 

to dismiss Islas Segura’s strike prior. (See People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497.) As for the firearm 

enhancements, when the prosecutor made his oral motion in 

December 2020, section 1385, subdivision (a) provided, “The 

judge or magistrate may, either of his or her own motion or upon 

the application of the prosecuting attorney, and in furtherance 

of justice, order an action to be dismissed.” (Former § 1385, 

subd. (a).) As a leading treatise has noted, “Section 1385 on 

its face authorizes only the court or the prosecution to bring 

a motion to dismiss a pleading.” (Couzens et al., Sentencing 

California Crimes (The Rutter Group 2023) § 20:52.) The treatise 
8

Islas Segura to 16 years, consisting of the midterm on count 2, 

doubled because of the strike, plus 10 years for the firearm 

enhancement. Counsel asked the court to run the sentence 

on count 1 concurrently with the sentence on count 2.

The court accepted defense counsel’s proposed sentence. 

The court also, on its own motion, struck the firearm 

enhancement on count 1. Neither the prosecutor nor defense 

counsel addressed count 3, assault with a firearm on Vargas. 

The court did not impose sentence on that count, stating only, 

“The sentence, in connection with count 3, Penal Code 

section 245(a)(2), and the gun allegation, under Penal Code 

section 12022.5, is stayed pursuant to Penal Code section 654.”

continues, however, to cite cases holding a defendant has a right 

to invite the court to exercise its power by an application to strike 

a count or allegation of an accusatory pleading, and the court 

must consider evidence offered by the defendant in support of 

his assertion that the dismissal would be in the furtherance 

of justice. (Ibid. [citing cases including Rockwell v. Superior 

Court (1976) 18 Cal.3d 420, 441].) By the time of Islas Segura’s 

sentencing in January 2022, the Legislature had added 

subdivision (c) and its many subparts to section 1385, imposing 

on courts the duty to “dismiss an enhancement if it is in the 

furtherance of justice,” unless any initiative statute prohibited 

such a dismissal. (§ 1385, subd. (c)(1).) Moreover, as of 

January 1, 2018, section 12022.53, subdivision (h) gave courts 

authority, in the interest of justice under section 1385, to strike 

or dismiss a firearm enhancement. (§ 12022.53, subd. (h).)
9

DISCUSSION

1. Under Nazir v. Superior Court, remand is 

appropriate in this case

a. We exercise our discretion to consider the merits

We first address the Attorney General’s contention 

that Islas Segura forfeited the issue. The Attorney General 

acknowledges the prosecutor expressly moved (orally) to dismiss 

the strike prior and firearm allegations against Islas Segura. 

Nevertheless, he argues Islas Segura is barred from challenging 

the court’s denial of that motion because he did not explicitly 

join in the prosecutor’s request to dismiss the firearm allegations; 

instead, he requested only that the court dismiss the prior 

conviction allegations.

The Attorney General seems to misunderstand the nature 

of Islas Segura’s appeal. As we understand it, Islas Segura 

does not challenge the court’s denial of his informal request 

for dismissal of the prior conviction allegations. Instead, he 

challenges the court’s denial of the prosecutor’s motion to dismiss 

all the allegations against him. Although Islas Segura had the 

right to invite the court to exercise its power to strike or dismiss 

the allegations (Rockwell v. Superior Court, supra, 18 Cal.3d at 

p. 441), he had no authority to join in the prosecutor’s motion5

5 The Attorney General does not contest Islas Segura’s 

standing to challenge the denial of the prosecutor’s motion, 

so we need not consider that issue. In any event, it appears 

Islas Segura does have standing. (See Nazir, supra, 79 

Cal.App.5th at p. 489, fn. 3 [“We summarily denied the petition 

because we concluded [the defendant], who was seeking writ 

review of the trial court’s order denying the People’s [1385] 

motion (i.e., not his motion), lacked standing. The Supreme 

Court apparently thought otherwise.”].)
10

(see People v. Carmony (2004) 33 Cal.4th 367, 375 [“A defendant 

has no right to make a motion, and the trial court has no 

obligation to make a ruling, under section 1385.”]).

Alternatively, the Attorney General contends the 

prosecutor’s December 2020 motion was not sufficient to preserve 

the issue given the court later declared a mistrial. According to 

the Attorney General, once the court declared a mistrial, its prior 

rulings no longer had effect. Therefore, he asserts, Islas Segura 

and the prosecutor had to make new requests for dismissal—

either at the second trial or sentencing—to preserve the issue 

for appeal.

The Attorney General provides no authority explicitly 

holding a declaration of mistrial vacates a court’s prior rulings 

under section 1385. In any event, to foreclose any issue about 

ineffective assistance of counsel, we exercise our discretion 

to consider the merits of Islas Segura’s claim. 

b. The Nazir decision

A felony complaint charged Rehan Nazir with various 

crimes, including kidnapping, and included firearm allegations. 

On December 11, 2020, three days after Gascón issued his special 

directive, the prosecutor made an oral motion to dismiss the 

firearm enhancements. The court—the same judge who denied 

the prosecutor’s motion in this case (the Honorable Lee W. Tsao) 

—denied the motion, stating it was “ ‘based solely on District 

Attorney Gascón’s Special Directive.’ ” (Nazir, supra, 79 

Cal.App.5th at pp. 486–487.) “The court said the cases ‘are clear 

that the exercise of discretion under [section] 1385 must be based 

on an individualized consideration of the offense and the offender 
11

and not on any antipathy or disagreement with the statutory 

scheme.’ ” (Id. at pp. 487–488.)6 

A week later the prosecutor filed a written motion under 

section 1385 to dismiss the firearm enhancements, “restating 

verbatim the arguments recited in” an addendum to the special 

directive. “At the hearing, the prosecutor did not present 

any argument in support of the motions, other than parroting 

the language” of the special directive. Nazir’s counsel argued 

the court had erred in denying the People’s previous motion. 

(Nazir, supra, 79 Cal.App.5th at p. 488.)

The court again denied the prosecutor’s motion. Again, 

the court stated the “ ‘exclusive basis’ ” for the motion was 

the Special Directive. To grant the motion, the court said, 

it “ ‘would have to adopt [the district attorney’s] rationale,’ ” 

which was “ ‘not a permissible basis’ ” on which to grant the 

motion. The court considered the information, the preliminary 

hearing transcript, the probation report, the nature of the 

offense, and Nazir’s background and character, concluding 

the motion to dismiss the enhancements was not in the 

interest of justice. (Nazir, supra, 79 Cal.App.5th at p. 488.)

6 See generally Couzens et al., Sentencing California 

Crimes, supra, § 12:11 [“In determining whether striking 

an enhancement is in the furtherance of justice, the court . . . 

should make its decision after an individualized consideration” 

of factors such as the nature and circumstances of the crime and 

the defendant’s level of involvement, the defendant’s background 

and prospects, the constitutional rights of the defendant and 

the interests of society represented by the People, and other 

factors that “would motivate a ‘reasonable judge’ in the exercise 

of discretion.”]. See also Cal. Rules of Court, rules 4.410, 4.411.5, 

4.421, 4.423, 4.428.
12

Nazir filed a petition for writ of mandate or prohibition. 

(Nazir, supra, 79 Cal.App.5th at p. 489.) The Attorney General 

filed a brief as amicus curiae on behalf of Nazir and District 

Attorney Gascón. (Id. at p. 484.)7 The Attorney General stated 

“a policy like S[pecial] D[irective] 20-08 is a proper basis for 

seeking dismissal.” The Attorney General noted “it is the 

elected district attorney, not the court, that determines how 

best to represent society’s interest in prosecuting criminal 

offenses,” and “[t]he policy judgments expressed in S[pecial] 

D[irective] 20-08 represent the People’s determination regarding 

‘the interests of society’ for purposes of section 1385.”

The Attorney General stated, “It is the court [not 

the prosecutor] that is required to make an individualized 

assessment of the case, weighing that factual assessment along 

with other relevant considerations.” “When the prosecution 

elects to request dismissal of charges, as here,” the Attorney 

General noted, “the interests of the defendant and the People 

are aligned.” According to the Attorney General, “the parties’ 

agreement alone may strongly suggest that dismissal would 

be in furtherance of justice.”

The Court of Appeal concluded, “The trial court 

misunderstood the scope of its discretion when it refused 

to consider Special Directive 20-08 in determining whether 

to grant the motion to dismiss the firearm enhancements 

alleged against Nazir.” (Nazir, supra, 79 Cal.App.5th at p. 497.) 

However, the appellate court rejected Gascón’s contention that 

a trial court has no authority to deny a prosecutor’s motion to 

7 On our own motion, we take judicial notice of the Attorney 

General’s amicus brief in Nazir. (Evid. Code, § 452, subd. (d)(1).)
13

dismiss an enhancement under section 1385. (Nazir, at p. 499.) 

The court reiterated that, in determining whether dismissal 

of an enhancement furthers the interest of justice, a court 

“must consider case-specific factors as well as general sentencing 

objectives.” (Id. at p. 485.) The court remanded the matter, 

directing the trial court to “consider Special Directive 20-08 

in determining whether to dismiss the firearm allegations 

against Nazir.” (Id. at p. 501.)

c. The record does not support the Attorney General’s 

attempt to distinguish Nazir

Islas Segura contends that, as in Nazir, supra, 79 

Cal.App.5th 478, the trial court erroneously believed it was 

not permitted to consider Special Directive 20-08 in connection 

with the prosecutor’s motion to dismiss. The facts in Nazir are 

remarkably similar to this case. Here, as in Nazir, the prosecutor 

moved to dismiss allegations against a defendant based solely 

on Special Directive 20-08. (Id. at pp. 487–488.) Moreover, the 

same trial judge who denied the prosecutor’s motion in Nazir 

declined to consider the special directive and denied the 

prosecutor’s motion in this case. (Ibid.) 

The Attorney General does not contend Nazir was wrongly 

decided or we should not follow it. This is not surprising, as 

the Attorney General filed an amicus brief in Nazir supporting 

the petitioner and District Attorney Gascón. Nevertheless, 

the Attorney General asserts that—contrary to Islas Segura’s 

characterization of the record—the trial court did consider 

Special Directive 20-08, but concluded it was not sufficient to 

warrant dismissal under the specific facts of this case. Therefore, 

the Attorney General argues, there is no need to remand the case 

for reconsideration.
14

The record does not support the Attorney General’s 

assertion. In denying the People’s motion, the court noted 

it is “well-settled that the court’s discretion to dismiss under 

1385 must be based on an individualized consideration of the 

circumstances of the offense and the defendant’s background,” 

and cannot “be based on disagreement with the law or antipathy 

with the sentencing scheme.” As we have said, this was a correct 

statement of the law. The court also remarked that Special 

Directive 20-08 does not provide any facts or circumstances 

specific to this case, and it invited Islas Segura to make a 

renewed request based on factors “traditionally submitted to 

the court for dismissal under 1385.” These remarks suggest 

the court believed it could not grant the prosecutor’s motion 

to dismiss based on Special Directive 20-08 alone, which was 

a reasonable conclusion under the state of the law at the time. 

However, eighteen months later, the Nazir court held a trial 

court, in ruling on a motion to dismiss an enhancement, properly 

may consider a prosecutor’s position that the deterrent effect 

or value to public safety of imposing a sentence enhancement 

is questionable. (Nazir, supra, 79 Cal.App.5th at p. 499.) 

Our interpretation of the record finds further support 

in the fact that the same judge made very similar remarks in 

Nazir, which he decided within days of the ruling in this case. 

The motion to dismiss in Nazir and the prosecutor’s motion 

in this case are identical in all relevant respects, and there 

is no apparent reason why the judge would have treated them 

differently. Although the judge made additional clarifying 

remarks in Nazir, given all the circumstances, we are sufficiently 

convinced he employed the same reasoning in both cases. 

Accordingly, the case must be remanded for the court to 
15

reconsider the prosecutor’s motion to dismiss, giving due 

consideration to Special Directive 20-08.

2. There was no prosecutorial misconduct

Islas Segura contends the prosecutor committed 

misconduct during closing argument by referring to a Christmas 

snow globe.

a. Background

During closing argument, the prosecutor drew an analogy 

between the evidence in the record and a Christmas snow globe.8 

He explained that “what we say, the attorneys, it’s not evidence. 

What you heard from that witness stand, the exhibits that you 

saw, that’s the encapsulated snow globe of evidence in this case. 

And like a snow globe, it usually gives you a little bit because you 

can’t fit everything into the snow globe, right?” The prosecutor 

continued: “So if you have Santa Claus and one reindeer, you 

don’t need all of the reindeer in that snow globe to realize that 

it’s a Christmas snow globe, right, even though it would, I guess, 

be nice. You realize there are Dancer, Prancer, Donner, and 

Vixen—they’re out there, but they’re not in the snow globe. 

You don’t need them. There is always going to be extra evidence 

outside that globe, but you focus on what’s in there and if that’s

enough to convict, that’s what you go with. And if it’s not, 

you acquit.”

b. Standard of review

“When attacking the prosecutor’s remarks to the jury, 

the defendant must show that, ‘[i]n the context of the whole 

argument and the instructions’ [citation], there was ‘a reasonable 

likelihood the jury understood or applied the complained-of 

8 The record does not disclose whether the prosecutor used 

an actual snow globe during his closing argument.
16

comments in an improper or erroneous manner. [Citations.] 

In conducting this inquiry, we “do not lightly infer” that the 

jury drew the most damaging rather than the least damaging 

meaning from the prosecutor’s statements. [Citation.]’ ” 

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

c. Islas Segura forfeited the issue

We agree with the Attorney General that Islas Segura 

forfeited the issue by failing to raise it below. Absent a showing 

that an objection or request for admonition would have been 

futile or that the harm could not have been cured, an appellant 

may not complain of prosecutorial misconduct unless he timely 

objected to the alleged misconduct at trial and asked the court 

to admonish the jury to disregard the impropriety. (People v. Hill 

(1998) 17 Cal.4th 800, 820; People v. Morales (2001) 25 Cal.4th 

34, 43–44.) Islas Segura did neither in this case. Nor does 

the record indicate an objection would have been futile or 

that any harm could not have been cured with an admonition. 

Accordingly, Islas Segura has forfeited the issue. Nevertheless, 

we will consider the merits of his arguments in order to forestall 

his derivative ineffective assistance of counsel claim.

d. Islas Segura has not shown the prosecutor engaged 

in misconduct

Relying on People v. Katzenberger (2009) 178 Cal.App.4th 

1260 and Centeno, supra, 60 Cal.4th 659, Islas Segura argues 

the prosecutor’s reference to a snow globe during closing 

argument constituted misconduct. In Katzenberger, the 

prosecutor attempted to demonstrate the burden of proof 

during closing argument by showing the jury a slide show of 

an eight-piece puzzle of the Statue of Liberty. The prosecutor 

added pieces to the puzzle one-by-one, until six of the eight pieces 
17

were visible. (Katzenberger, at pp. 1264–1265.) At that point, 

the prosecutor asserted, “ ‘[w]e know [what] this picture is [the 

Statue of Liberty] beyond a reasonable doubt without looking 

at all the pieces of that picture.’ ” (Id. at p. 1265.) She then 

noted the jury’s “ ‘standard is to judge this case beyond a 

reasonable doubt.’ ” (Ibid.) 

The Court of Appeal held the prosecutor’s demonstration 

constituted misconduct. (People v. Katzenberger, supra, 178 

Cal.App.4th at p. 1268.) The court explained the use of a puzzle 

that was almost immediately recognizable “leaves the distinct 

impression that the reasonable doubt standard may be met by 

a few pieces of evidence. It invites the jury to guess or jump to 

a conclusion, a process completely at odds with the jury’s serious 

task of assessing whether the prosecution has submitted proof 

beyond a reasonable doubt.” (Id. at pp. 1266–1267.) The court 

also noted the prosecutor’s argument improperly quantified the 

concept of reasonable doubt, suggesting it requires 75 percent 

certainty. (Id. at pp. 1267–1268.)

In Centeno, supra, 60 Cal.4th 659, the prosecutor 

attempted to explain the burden of proof by showing the jurors 

a diagram containing a geographical outline of California. (Id. 

at pp. 664, 665 & fn. 4.) The prosecutor told the jury it had to 

decide what state was depicted in the diagram. She then laid out 

“hypothetical ‘testimony’ ” about the diagram, which was full 

of inconsistencies, omissions, and inaccuracies. (Id. at p. 664.) 

The prosecutor argued that, despite the flawed testimony, there 

was no reasonable doubt the state in the diagram was California. 

(Ibid.)

Analogizing to Katzenberger, the California Supreme Court 

held the prosecutor’s argument constituted misconduct. The 
18

high court explained the “use of an iconic image like the shape 

of California or the Statue of Liberty, unrelated to the facts of 

the case, is a flawed way to demonstrate the process of proving 

guilt beyond a reasonable doubt. These types of images 

necessarily draw on the jurors’ own knowledge rather than 

evidence presented at trial. They are immediately recognizable 

and irrefutable. Additionally, such demonstrations trivialize 

the deliberative process, essentially turning it into a game 

that encourages the jurors to guess or jump to a conclusion.” 

(Centeno, supra, 60 Cal.4th at p. 669.)

Islas Segura argues the prosecutor’s snow globe analogy 

in this case is comparable to the inappropriate demonstrations 

in Katzenberger and Centeno. Specifically, he contends 

the prosecutor misstated the burden of proof and the jury’s 

obligations by asserting “ ‘if you have Santa Claus and one 

reindeer, you don’t need all of the reindeer in that snow globe 

to realize that it’s a Christmas snow globe.’ ” According to 

Islas Segura, this remark improperly suggested a quantitative 

measure of reasonable doubt and conveyed to the jury it could 

find him guilty based only on a “ ‘little bit’ ” of evidence.

We agree with Islas Segura that some of the prosecutor’s 

remarks resemble those in Katzenberger and Centeno, especially 

when viewed in isolation. As in those cases, the prosecutor used 

a relatively iconic image that was unrelated to the case, urged 

the jurors to rely on their outside knowledge to identify it, and 

suggested they could reach a conclusion about the image based 

on limited information. Nevertheless, the prosecutor’s snow 

globe analogy is sufficiently distinct from the arguments in

Katzenberger and Centeno that it does not rise to the level 

of misconduct. 
19

Contrary to Islas Segura’s contentions, it is not self-evident 

the jurors would have understood the prosecutor’s analogy to

concern the burden of proof. In Katzenberger and Centeno, 

the prosecutors were explicit that the purpose of their analogies 

was to explain the concept of proof beyond a reasonable doubt, 

something the Supreme Court has described as a “ ‘perilous 

exercise.’ ” (People v. Freeman (1994) 8 Cal.4th 450, 503–504.) 

Here, in contrast, the prosecutor did not explicitly mention the 

burden of proof, use language from the relevant jury instruction, 

or ask the jurors to make factual findings about the snow globe. 

Instead, he simply noted the jurors could “realize” the snow globe 

was Christmas themed, a term not commonly associated with 

criminal trials. Although it is possible to construe his remark 

as concerning the burden of proof, given this context, it is 

not reasonably likely the jurors understood it in that way. 

Instead, it is far more likely the jurors understood the 

analogy to convey a much simpler concept: that they should focus 

on the evidence presented at trial, without speculating about 

what other information might exist. Unlike the burden of proof, 

the prosecutor explicitly mentioned this idea while discussing 

the snow globe analogy. Indeed, he concluded his discussion 

of the analogy by stating, “[t]here is always going to be extra 

evidence outside that globe, but you focus on what’s in there 

and if that’s enough to convict, that’s what you go with. And 

if it’s not, you acquit.” Describing this concept is far less perilous 

than describing the burden of proof.

We also reject Islas Segura’s contention that the 

prosecutor’s analogy likely misled the jurors about the nature 

of their factfinding obligations. In Katzenberger and Centeno,

the prosecutors presented their demonstrations as being 
20

generally analogous to a criminal trial. In doing so, they wrongly 

implied the process to determine a defendant’s guilt is akin to 

a simple game. Here, in contrast, the prosecutor focused on one 

specific characteristic of the snow globe—its isolated and limited 

depiction of an event—which he then related to the trial. 

By limiting the scope of his analogy in this way, it is unlikely 

the jury understood the prosecutor to be suggesting anything 

improper about the nature of the deliberative process. 

In closing, however, we remind counsel that such creative 

demonstrations as the use of a snow globe in a criminal trial 

can be fraught with peril. It is far better to stick to the facts 

of the case and the jury instructions. 
21

DISPOSITION

We vacate Guillermo Islas Segura’s sentence and otherwise 

affirm the judgment. We remand the case for the trial court to 

resentence Isla Segura after reconsidering the People’s motion 

to dismiss under section 1385 in accordance with this opinion. 

We remind the court that, when resentencing Islas Segura, it 

must impose a sentence on all counts and then stay execution 

of sentence as necessary under section 654. (See People v. Alford

(2010) 180 Cal.App.4th 1463, 1469.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

ADAMS, J.