Filed 12/22/23 P. v. Abril CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

EFREN ABRIL,

 Defendant and Appellant.

 G061637

 (Super. Ct. No. 21CF3181)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Scott A. 

Steiner, Judge. Affirmed.

Sheila O’Connor, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charlies C. Ragland, Assistant Attorney General, Junichi P. Semitsu and Eric A. 

Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
2

Efren Abril appeals from the judgment entered after a jury found him guilty 

of possession of a firearm by a felon in violation of Penal Code section 29800, 

subdivision (a)(1).1 He contends the prosecutor committed error2in his closing and 

rebuttal arguments. He also argues his conviction violates the Second Amendment to the 

United States Constitution, as interpreted by New York State Rifle & Pistol Assn. v. Bruen

(2022) 597 U.S. __ [142 S.Ct. 2111] (Bruen). 

We affirm. One of the prosecutor’s statements during his closing argument 

had the potential of confusing the jury regarding the interplay of the concept of rejecting 

unreasonable inferences with the standard of proof beyond a reasonable doubt. We 

conclude, however, it did not rise to the level of prosecutorial error because “in the 

context of the entire argument and jury instructions, it was not reasonably likely the jury 

understood or applied the statement in an improper or erroneous manner.” (People v.

Meneses (2019) 41 Cal.App.5th 63, 73 (Meneses).) Abril also failed to show the 

prosecutor committed error in his rebuttal argument.

We also reject Abril’s Second Amendment challenge. We agree with 

People v. Alexander (2023) 91 Cal.App.5th 469, 479 (Alexander) and its progeny holding

the Second Amendment protects only the law-abiding citizen’s right to bear arms and 

“[c]onvicted felons, by definition, are not law abiding.” Therefore, Abril’s conviction for 

possession of a firearm by a felon in violation of section 29800, subdivision (a)(1) is 

constitutional.

1

All further statutory references are to the Penal Code.

2

 We use the term prosecutorial error rather than prosecutorial misconduct because 

prosecutorial misconduct “‘is somewhat of a misnomer to the extent that it suggests a 

prosecutor must act with a culpable state of mind.’” (People v. Centeno (2014) 60 

Cal.4th 659, 666–667 (Centeno).) “‘A more apt description of the transgression is 

prosecutorial error.’” (Id. at p. 667.)
3

FACTS

Around 10:00 p.m. on August 27, 2021, Santa Ana Police Officer Tanner 

Bell was on duty when he was dispatched to an industrial complex in Santa Ana. As he 

approached the complex, he saw a four-door car driving away from the location. Bell 

observed the car’s front lights were not on, the front two windows were tinted, and the 

rear license plate was faded, making it almost impossible to read. Bell initiated a traffic 

stop of the car. 

When Bell walked up to the stopped car, he found Abril in the driver’s seat, 

A.A. in the front passenger seat, and three male juveniles in the back seat. The car

belonged to A.A. 

All five occupants were removed from the car while Bell searched the car. 

During his search, Bell found an unsecured, loaded firearm under the front passenger 

seat. Abril and A.A. were arrested and transported to jail. 

Later that evening a forensic specialist processed the firearm for DNA by 

swabbing its grip, trigger, trigger guard, and slide. She also used buccal swabs to collect 

DNA from Abril and A.A. 

Orange County Crime Lab forensic scientist Danielle Wieland testified 

analysis of the DNA samples showed the swab of the trigger contained a DNA mixture of 

two main contributors, one minor contributor, and one trace contributor. Based on her 

analysis of the trigger swab, there was very strong evidence Abril was a minor 

contributor of DNA to that mixture. A.A. was eliminated as a main or minor contributor

to that mixture. 

The swab of the firearm’s grips contained a DNA mixture of two main 

contributors, two minor contributors, and one trace contributor. Wieland concluded the 

evidence was very strong Abril was one of the major contributors of DNA to that mixture 

and provided very weak support that A.A. was a minor contributor of DNA to the same
4

mixture. Wieland testified the swab of the firearm’s slide did not yield a good sample 

amenable to DNA analysis. 

Wieland testified she could not determine when the DNA was deposited on 

the firearm or how long it had been there before the firearm was found. Wieland testified 

that when a person’s DNA profile is determined to be a major contributor of a sample 

taken from an item, it is possible the person had not physically touched the item, but 

“direct contact” is most likely in such instances. 

The parties stipulated Abril was previously convicted of a felony. 

PROCEDURAL HISTORY

At the time of trial, Abril was charged in an amended information with (1) 

possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1) and (2) possession of 

ammunition by a felon (§ 30305, subd. (a)(1); count 2). The amended information 

alleged Abril had a prior “strike” conviction for committing residential burglary. 

(§§ 667, subds. (d), (e)(1), 1170.12, subds. (b), (c)(1).) After a jury was unable to reach a 

verdict as to either count, the court declared a mistrial. 

A second jury found Abril guilty on count 1 and not guilty on count 2. The 

trial court found the prior strike allegation true. 

The trial court imposed the low term of 16 months and doubled that term 

under the Three Strikes law because of Abril’s prior strike conviction term to impose a 

total prison sentence of 32 months. Abril timely appealed. 

DISCUSSION

I.

PROSECUTORIAL ERROR

In his opening brief, Abril contends the prosecutor, during his closing and 

rebuttal arguments, “made a number of objectionable comments, including shifting the 
5

burden of proof, disparaging defense counsel and introducing facts not in evidence.” 

Abril further contends: “While each of these errors in and of themselves may not 

constitute prosecutorial misconduct[,] . . . cumulatively these errors prejudicially

contributed to the guilty verdict, and require a reversal of the conviction.” 

A. Governing Legal Principles

“Advocates are given significant leeway in discussing the legal and factual 

merits of a case during argument. [Citation.] However, ‘it is improper for the prosecutor 

to misstate the law generally [citation], and particularly to attempt to absolve the 

prosecution from its . . . obligation to overcome reasonable doubt on all elements 

[citation].’ [Citations.] To establish such error, bad faith on the prosecutor’s part is not 

required.” (Centeno, supra, 60 Cal.4th at p. 666.)

“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 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.’” (Centeno, supra, 60 Cal.4th at p. 667.)

“A prosecutor’s conduct violates the federal Constitution when the conduct 

‘“infects the trial with such unfairness as to make the conviction a denial of due 

process”’; that is, when the conduct is ‘“of sufficient significance to result in the denial of 

the defendant’s right to a fair trial.’” [Citation.] A prosecutor’s argument that does not 

render a criminal trial fundamentally unfair violates California law only if the conduct 

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

the court or the jury.’”’”’” (Meneses, supra, 41 Cal.App.5th at pp. 70–71.)

We first discuss Abril’s contention the prosecutor committed error in his 

closing argument by attempting to dilute the prosecution’s burden of proof. We next
6

address Abril’s claim the prosecutor committed error in his rebuttal argument by 

disparaging his trial counsel and shifting the burden of proof. 

B. The Prosecutor’s Statements in His Closing Argument Did Not Constitute Error in 

Light of the Entire Argument and Jury Instructions

In his opening brief, Abril contends the prosecutor attempted to dilute the 

prosecution’s burden of proof at the beginning of his closing argument when he stated: 

“Reasonable doubt, we’ll get to later on, but essentially that is the legal standard, proof 

beyond a reasonable doubt. The main thing I want to focus on here is, as the judge has 

already stated, it’s not proof beyond all possible doubt, beyond a shadow of a doubt, it’s 

proof beyond a reasonable doubt. [¶] Another way of putting it is, based on the evidence 

in this case, and only the evidence in this case, what is the only reasonable conclusion?” 

After Abril’s counsel objected to the prosecutor’s statement on the ground 

it misstated the law, the trial court overruled the objection, stating: “Again, I’ll tell you 

what the law is, ladies and gentlemen. If anything the attorneys say conflicts with my 

instructions, you must follow my instructions.” 

The prosecutor thereafter resumed his closing argument, stating: “If the 

only reasonable conclusion -- I don’t mean possible -- the only reasonable conclusion 

points to guilt, you, as the jury, must -- not should -- must vote guilty and find Mr. Abril 

guilty.” Citing Centero, supra, 60 Cal.4th at page 672, Abril contends the prosecutor’s 

argument suggested the jury could find Abril guilty “so long as the People’s evidence 

reasonably support[ed] a guilty verdict” and as such, constituted “‘manifest’ error.” 

“While a prosecutor may appeal to the jurors to use their common sense, 

experience, and reason to evaluate the evidence and assess witness credibility, a 

prosecutor may not argue or even suggest the prosecution’s burden of proof is satisfied if 

the prosecution’s evidence presents a reasonable account.” (Meneses, supra, 41 

Cal.App.5th at pp. 71–72, citing Centeno, supra, 60 Cal.4th at p. 672.) “The prosecutor 

may argue ‘reasonably possible interpretations to be drawn from the evidence.’ 
7

[Citation.] ‘It is permissible to argue that the jury may reject impossible or unreasonable 

interpretations of the evidence and to so characterize a defense theory.’ [Citation.] The 

prosecutor may ‘urge the jury to “‘accept the reasonable and reject the unreasonable’” in 

evaluating the evidence before it.’” (Meneses, supra, 41 Cal.App.5th at p. 71, quoting 

Centero, supra, 60 Cal.4th at pp. 672–673.) Furthermore, “A prosecutor may argue that 

defense interpretations of the evidence are unreasonable, but may not argue that 

deficiencies in the defense evidence can make up for shortcomings in the prosecution’s 

case. [Citation.] The prosecutor may not ‘confound[] the concept of rejecting 

unreasonable inferences with the standard of proof beyond a reasonable doubt.’”

(Meneses, at p. 72.)

Here, while not necessarily inaccurate, the above quoted statements of the 

prosecutor, when viewed in isolation, had the potential of confusing the jury regarding

the interplay between the concept of rejecting unreasonable inferences and the standard 

of proof beyond a reasonable doubt. However, for the reasons we will explain, we 

conclude these statements did not rise to the level of prosecutorial error “because in the 

context of the entire argument and jury instructions, it was not reasonably likely the jury 

understood or applied the statement in an improper or erroneous manner.” (Meneses, 

supra, 41 Cal.App.5th at p. 73.)

“To find prosecutorial error, we must view the challenged statement in the 

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

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

erroneous manner. [Citation.] ‘If the challenged comments, viewed in context, “would 

have been taken by a juror to state or imply nothing harmful, [then] they obviously 

cannot be deemed objectionable.”’” (Meneses, supra, 41 Cal.App.5th at p. 74.)

As for the jury’s understanding regarding the role of argument versus the 

instructions given by the court, on three occasions during the prosecutor’s closing 

argument, in response to Abril’s trial counsel’s objections that the prosecutor misstated 
8

the law, the court informed the jury the court’s instructions, not counsel’s argument 

controls. Toward the beginning of the prosecutor’s closing argument, the court told the 

jury: “I’ll tell you what the law is, ladies and gentlemen. We’ll get there,” an 

admonishment the court reiterated a short time later, adding that in the event the court’s 

instructions on the law conflicted with the attorneys’ arguments, the jurors were required 

to follow the court’s instructions. Toward the end of the prosecutor’s closing argument, 

the court restated the point: “I’ll tell you what the law is. If it conflicts with what the 

lawyers say, follow my instructions.” On more than one occasion during the prosecutor’s 

rebuttal argument, the court reminded the jurors they must follow the court’s instructions 

if the attorneys’ arguments conflict with such instructions. 

The prosecutor similarly told the jury in his closing argument: “Don’t go 

by what I say or what defense counsel says, go by what the judge says and provides to 

you and what those actual legal instructions say.” He also stated in his rebuttal argument: 

“So I’ll tell you what the correct standard is. It’s going to come from the jury instructions 

and it’s going to come from the judge.” 

In giving those formal instructions to the jury, the trial court correctly 

defined the reasonable doubt standard. (People v. Cortez (2016) 63 Cal.4th 101, 131

[finding it significant the court properly defined reasonable doubt in its oral and written 

instructions when considering claim prosecutor committed error with statements in 

rebuttal argument].) The court instructed the jury with CALCRIM No. 220: “A 

defendant in a criminal case is presumed to be innocent. This presumption requires that 

the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the 

People must prove something, I mean they must prove it beyond a reasonable doubt 

unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that

leaves you with an abiding conviction that the charge is true. The evidence need not 

eliminate all possible doubt because everything in life is open to some possible or 

imaginary doubt. [¶] In deciding whether the People have proved their case beyond a 
9

reasonable doubt, you must impartially compare and consider all the evidence that was 

received throughout the entire trial. Unless the evidence proves the defendant guilty 

beyond a reasonable doubt, he is entitled to an acquittal and you must find him not

guilty.” 

As to direct and circumstantial evidence, the trial court instructed the jury 

with CALCRIM No. 224, stating: “Before you may rely on circumstantial evidence to 

conclude that a fact necessary to find the defendant guilty has been proved, you must be 

convinced that the People have proved each fact essential to that conclusion beyond a 

reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the 

defendant guilty, you must be convinced that the only reasonable conclusion supported 

by the circumstantial evidence is that the defendant is guilty. If you can draw two or 

more reasonable conclusions from the circumstantial evidence, and one of those 

reasonable conclusions points to innocence and another to guilt, you must accept the one 

that points to innocence. However, when considering circumstantial evidence, you must 

accept only reasonable conclusions and reject any that are unreasonable.” 

The court told the jurors that in evaluating a witness’s testimony, they 

could consider the reasonableness of the testimony in light of all the other evidence in the 

case, and as to any opinion given by a witness at trial, they could “disregard all or any 

part of an opinion that [they] find unbelievable, unreasonable, or unsupported by the 

evidence.” (CALCRIM No. 333 [Opinion Testimony of Lay Witness]; see CALCRIM 

No. 226 [Witnesses].) 

As was the case in Meneses, supra, 41 Cal.App.5th at page 75, decided by a 

panel of this court, here “[t]he jury instructions left no doubt about the prosecution’s 

burden of proof, the proper application of each juror’s common sense and experience, 

and the role of reasonableness in reaching a verdict. To the extent the prosecutor’s 

statement at the beginning of [closing] argument was inconsistent with the instructions, 

the jury was instructed to follow the latter.” As in Meneses, here the trial court also 
10

instructed the jury with CALCRIM No. 200: “You must follow the law as I explain it to 

you, even if you disagree with it. If you believe that the attorneys’ comments on the law 

conflict with my instructions, you must follow my instructions.” (See Meneses, supra, at 

p. 75.) 

It is axiomatic “[w]e presume the jury followed the court’s instructions, 

rather than any conflicting comment by counsel, in reaching a verdict. [Citations.] 

‘“[J]uries generally understand that counsel’s assertions are the ‘statements of 

advocates.’”’” (Meneses, supra, 41 Cal.App.5th at p. 75.) )

Here, “‘[i]n the context of the whole argument and the [jury] instructions’” 

(Centeno, supra, 60 Cal.4th at p. 667), the jury was not reasonably likely to understand 

the prosecutor’s comments in his closing argument as diminishing the prosecution’s 

burden of proof. We therefore conclude the prosecutor did not commit prosecutorial 

error in his closing argument.

C. The Prosecutor’s Statements During Rebuttal Argument Did Not Constitute 

Prosecutorial Error

In his opening brief, Abril contends the prosecutor “personally disparaged 

defense counsel” in the prosecutor’s rebuttal argument. (Boldface omitted.) To provide 

context for Abril’s contention, we first review Abril’s trial counsel’s closing argument, in 

which counsel addressed the meaning of the term “‘abiding conviction,’” as follows: “If, 

in your deliberations, you decide that there’s a question that you have, it’s an important 

question that the prosecution hasn’t answered with evidence -- let’s say you think, ‘you 

know what, I’m going to ignore that question, probably not important, since there’s no 

evidence of it, I’m just going to assume it’s not important,’ and you ignore it, if ten years 

down the road you hear -- you run into one of the other jurors and you hear, for instance, 

‘hey, you know what, they retested the DNA. They have new technology and they’re 

able to determine that the DNA was deposited on the firearm three months prior,’ and 

you were like, ‘oh, you know, I had thought about that, I had a question about the time 
11

line as to how long that would be, but I’m’ -- ‘now that you said that there’s evidence to 

the opposite, I would have changed my verdict based on that’ -- if you have that question 

now, you have a reasonable doubt. [¶] So the question to be asking yourself is, do you 

have a question about the evidence, is there a gray area. And so long as that doubt is 

reasonable, . . . then the prosecutor hasn’t met his burden.” 

In response, during his rebuttal argument, the prosecutor stated: “[Abril’s 

trial counsel] also talked about how -- I think she gave an example of what an abiding 

conviction is, and she had to give an example about imagine ten years down the road, 

when there’s some essentially future magical technology that would allow you to rethink 

this. That’s how egregious the defense theory of the case is. [¶] She gives the example 

where ten years down the line, some new technology might cause her to rethink the 

defendant’s guilt in this case and the defendant’s convictions in this case. Come on, that 

alone is unreasonable.” 

Abril argues “the prosecution’s comments that the defense strategy was 

‘egregious’ and that defense counsel was ‘unreasonable’ added to the overall tone of the 

closing that defense counsel cannot be believed and to ignore any of defense counsel’s 

remarks including raising a potentially reasonable defense to the prosecution’s evidence.” 

We do not agree the jury would have understood the prosecutor’s 

comments to denigrate defense counsel. The prosecutor argued defense counsel’s 

argument — not defense counsel herself — was unreasonable — so unreasonable in his 

mind to be egregious. Nothing in the record shows the prosecutor accused Abril’s trial 

counsel of fabricating a defense, factually deceiving the jury, or otherwise being 

dishonest in defending Abril. We find no error.

In addition, Abril contends during his rebuttal argument, the prosecutor 

erroneously shifted the burden of proof by improperly introducing facts not in evidence. 

Again, to provide context, we first review Abril’s trial counsel’s closing argument. In the 

defense’s closing argument, Abril’s trial counsel discussed the DNA evidence and argued 
12

there was a reasonable inference Abril never touched the gun. Abril’s trial counsel 

emphasized Wieland’s testimony DNA can be transmitted by speaking or coughing over 

an item. In his rebuttal argument, the prosecutor stated: “In the evidence 

there’s . . . nothing to suggest that [Abril] was coughing up a storm, sneezing on the gun. 

And if that was the case, if he’s standing over the firearm, spitting all over it, sneezing all 

over it, it’s going to spray. It’s also going to get on the slide, ladies and gentlemen, and it 

did not, not in this case.”

The prosecutor’s statement was made in response to Abril’s trial counsel’s 

argument Abril’s DNA could have been transferred to the gun if Abril had coughed or 

talked over it. The statement reflected a comment on the state of the prosecution’s 

evidence, which did not include evidence of any such sneezing or coughing. In its 

statement, the prosecutor was not suggesting the existence of facts outside the record, or 

that defense counsel was hiding evidence from the jury or not doing her job in presenting 

evidence. We find no error.

Because there was no single prosecutorial error, there was no cumulative 

error. (People v. Bolin (1998) 18 Cal.4th 297, 345.)

II.

THE SECOND AMENDMENT

Abril contends his conviction for unlawful possession of a firearm in 

violation of section 29800, subdivision (a)(1) should be reversed as facially 

unconstitutional under the Second Amendment. To support his argument, he relies on the 

United States Supreme Court’s interpretation of the Second Amendment in Bruen, supra, 

142 S.Ct. 2111. Abril’s constitutional challenge is without merit.

The Second Amendment provides: “A well regulated Militia, being 

necessary to the security of a free State, the right of the people to keep and bear Arms, 

shall not be infringed.” As the due process clause of the Fourteenth Amendment to the 

United States Constitution incorporates the Second Amendment right to keep and bear 
13

arms, the “Second Amendment right is fully applicable to the States.” (McDonald v. 

Chicago (2010) 561 U.S. 742, 750.)

In Bruen, supra, 142 S.Ct. at p. 2131, the United States Supreme Court held 

the Second Amendment protects “‘the right of law-abiding, responsible citizens to use 

arms’ for self-defense.” (Italics added.) We agree with the appellate court’s analysis in 

Alexander, supra, 91 Cal.App.5th at page 479, “[c]onvicted felons, by definition are not 

law abiding” and “thus are not among ‘the people’ who have an individual right to 

possess firearms under the Second Amendment.” 

Here, like the defendant in Alexander, supra, 91 Cal.App.5th 469, Abril 

was convicted of violating section 29800, subdivision (a)(1), which provides in relevant 

part: “Any person who has been convicted of a felony under the laws of the . . . the State 

of California . . . and who owns, purchases, receives, or has in possession or under 

custody or control any firearm is guilty of a felony.” (Italics added.) As a convicted 

felon, Abril does not qualify for the Second Amendment protection afforded to lawabiding, responsible citizens. As such, his challenge to the constitutionality of section 

29800, subdivision (a)(1) fails. (See Alexander, supra, 91 Cal.App.5th at p. 479 

[challenge to “constitutionality of section 29800(a)(1) . . . under the Second Amendment 

fail[s] under the first step of Bruen’s analytical framework”]; see also Zachary H. v. Teri 

A. (2023) 96 Cal.App.5th 1136, 1145 [“recognizing the California cases that uphold the 

prohibition of ‘felon weapon possession’ post-Bruen — we conclude that Bruen does not 

call into question the lawfulness of firearms restrictions imposed on individuals subject to 

restraining orders”]; People v. Ceja (2023) 94 Cal.App.5th 1296, 1301 [“We agree with 

the cogent reasoning and analysis in Alexander . . . [and] hold that the felon in possession 

of ammunition prohibition . . . does not facially violate the Second Amendment”]; In re 

D.L. (2023) 93 Cal.App.5th 144, 166 [“We agree with Alexander . . . that Bruen did not 

expand ‘the categories of people who may lawfully possess a gun,’ and that those 

convicted of a felony are squarely in a category where gun possession is off-limits due to 
14

their prior criminal conduct”]; People v. Odell (2023) 92 Cal.App.5th 307, 317 [agreeing 

with Alexander that § 29800, subd. (a)(1) is constitutional].)

In light of the foregoing, Abril’s conviction for possessing a firearm as a 

felon, in violation of section 29800, subdivision (a)(1), does not offend the Second 

Amendment to the United States Constitution. 

DISPOSITION

The judgment is affirmed.

MOTOIKE, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.