Filed 6/7/16

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

IAN EULIAN,

Defendant and Appellant.

 B265578

 (Los Angeles County

 Super. Ct. No. BA416446)

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

Sandoval, Judge. Affirmed.

John Steinberg for Defendant and Appellant.

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

General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, 

Supervising Deputy Attorney General, William H. Shin, Deputy Attorney General, for 

Plaintiff and Respondent.

_____________________

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, only the 

Introduction, Facts, the portion of the opinion entitled “Limitation on Self-Defense under 

CALCRIM No. 3472,” and Disposition are certified for publication.
2

INTRODUCTION

Following a hung jury and mistrial, a second jury convicted defendant and 

appellant Ian Eulian in count 1 of battery with serious bodily injury (Pen. Code, § 243, 

subd. (d)),1 and in count 2 of assault by means of force likely to produce great bodily 

injury (§ 245, subd. (a)(4)), with a finding that defendant personally inflicted great bodily 

injury on the victim (§ 12022.7, subd. (a)). Defendant was placed on probation for a 

period of three years on various terms and conditions, including 180 days in county jail. 

Defendant contends the judgment should be reversed for the following reasons: 

(1) the trial court committed prejudicial error by allowing a detective to express opinions 

that defendant and defendant’s mother were lying about the charged incident based on the 

detective’s observation of a video recording of the event; (2) it was prejudicial error to 

instruct the jury pursuant to CALCRIM No. 3472 (“Right to Self-Defense: May Not Be 

Contrived”) because the instruction misstates the law of self-defense as explained in 

People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez); (3) the cumulative effect of 

the court’s ruling on the admissibility of evidence requires reversal; and (4) the 

prosecutor committed misconduct by intentionally introducing inadmissible opinion 

testimony after failing to obtain a conviction in the first trial. 

We affirm. In the published portion of this opinion, we hold that CALCRIM No. 

3472 is a correct statement of law, the instruction was properly given under the facts in 

this case, and the reasoning of Ramirez has no application where the party claiming a 

right to self-defense did not use deadly force. In the unpublished portion of the opinion 

we reject defendant’s remaining claims of error and prejudice. 

FACTS

1 Statutory references are to the Penal Code, unless otherwise indicated.
3

The charges in this case stem from an altercation between three residents of the 

West Adams area of Los Angeles: defendant (a 39 year-old off-duty firefighter for the 

City of Los Angeles); defendant’s 70 year-old mother Lionetta Fontaine; and 48 year-old 

Rebecca Stafford. Stafford routinely fed feral cats in the alley behind where defendant 

and his mother resided in the mother’s four-plex building. According to defendant and 

his mother, the cats created a host of problems, including defecating in the flower beds, 

dying under their residence, attracting flies, and attacking Fontaine’s blind dog. 

The parties agree that Fontaine was in her Jeep in the alley behind the four-plex, 

for the purpose of feeding the feral cats, one week before the incident resulting in the 

charges against defendant. Ronald Richard is another resident of the four-plex owned by 

Fontaine. A community center is located next to the property. Richard saw Stafford’s 

Jeep and had interaction with her regarding the feeding of cats at that location. 

Defendant arrived, at which point Richard stood inside the doorway of the house.2

Defendant told Stafford the cats were defecating in his yard and one had attacked 

his mother’s older dog. According to Stafford, she said she would feed the cats down

the alley. Defendant had a different recollection of the interaction, testifying that 

Stafford yelled and directed profanity toward Richard. Defendant tried to explain the 

problems caused by the cats, but Stafford yelled at him. Defendant told her to calm 

down. Stafford’s temporary solution was to feed the cats at a location up the alley, but 

defendant said it would eventually have to stop because that was not a solution to the 

problems.3

Shortly after midnight on September 14, 2013, Stafford again parked her Jeep in 

the alley behind the four-plex. The community center next to the property had 

2 Limitations placed on the scope of Richard’s testimony are the subject of one of 

defendant’s appellate contentions, as discussed more fully below in the unpublished 

portion of this opinion.

3 Fontaine testified that she had spoken to Stafford about the problem created by 

the cats nine to ten times, as far back as 2011. Stafford had been very defensive and not 

very sympathetic. 
4

surveillance cameras in the alley which produced a particularly clear video record of 

what transpired. There is no audio on the recording. The trial court permitted extensive 

questioning regarding exactly what was said, what witnesses were thinking, and what the 

video showed. For purposes of a statement of facts on appeal, it is sufficient to 

summarize the content of the video, which we have reviewed on multiple occasions, and 

note the material differences in the testimony of the witnesses at trial.

Stafford testified she was in the alley looking for an injured cat when she heard 

defendant loudly yelling that he thought he had told her not to feed the cats there again. 

Stafford told defendant that she was looking for an injured cat to take to the veterinarian. 

Defendant testified that the argument escalated, with Stafford insisting she could do 

whatever she wanted and directing profanity at him; defendant responded in kind. 

One video recording from the community center cameras depicts Stafford parking 

her Jeep in the alley. She opened her car door, placed one foot outside, and directed 

comments at someone who is not yet depicted in the video. Stafford became more 

animated as she appears to be yelling while gesturing.4 About one minute into the video,

defendant is seen walking quickly toward Stafford’s car, pointing at her while appearing 

to yell. Defendant leaned into Stafford’s car, repeatedly poking his finger close to 

Stafford’s face. Stafford and defendant engaged in a heated argument, with each 

gesturing at different times.5 As defendant continued to scream at Stafford, she reached 

to her right and made a throwing motion four times, throwing cat kibble toward 

defendant. Defendant tried to grab Stafford’s arm, but appeared to lose his grip. At 

about the same moment, Stafford’s leg is raised as if to kick or push defendant, and 

defendant moved backward by one step. 

4 Stafford testified she only became angry when defendant said he was just going 

to kill the cats. Stafford responded with profane name calling as the incident escalated.

5 Stafford, defendant, and Fontaine all testified to the prolific use of profanity by 

Stafford and defendant. The precise language used does not affect the merits of the 

appeal.
5

The video then depicts Fontaine walking to the Jeep, where she pulled defendant 

away by the arm. Fontaine tried to close the door to the Jeep, but Stafford held it open. 

Fontaine spoke briefly to Stafford, who continued to argue and gesture toward defendant. 

Defendant moved to the outside of the open car door, yelling and pointing at Stafford. 

Stafford slapped defendant through the open car window. Fontaine moved forward and 

traded slaps with Stafford. Defendant moved to a position between the open car door and 

Stafford, with his mother on his left. Defendant threw two powerful punches at Stafford 

as she sat in the Jeep, leaping off his feet as he delivered the first blow. Defendant had 

his left arm on his mother’s right shoulder at the time defendant punched at Stafford in 

the car. At the same moment as the punches, the video shows the movement of 

Stafford’s foot toward Fontaine, 6 who was propelled backward either by a kick from 

Stafford, a push from defendant’s hand on her shoulder, or a combination of the two 

actions.7 Defendant forcefully grabbed Stafford and yanked her from the car, threw her 

to the ground, and delivered two more punches toward Stafford’s head. A woman is seen 

walking into the alley just as defendant is striking Stafford outside of the Jeep. Stafford 

remained motionless on the ground for approximately two minutes before stirring.

The video depicts Stafford being helped to her feet by defendant and his mother. 

Stafford testified that she woke up on the on the ground, bleeding from the back of her 

head and crying. She was assisted into her vehicle by defendant. Stafford asked what 

happened. Fontaine said Stafford had tripped, fell, and hit her head on the pavement. 

Fontaine testified that she gave Stafford that explanation, but she had not actually seen 

what happened. Stafford asked defendant if he was sure he did not hit her, which 

defendant denied, explaining that Stafford was “acting like a crazy woman” and running 

around her car, hitting and kicking his mother when she tripped, fell, and hit her head on 

her car. 

6 At the preliminary hearing, Stafford testified that that after being repeatedly hit 

by Fontaine she kicked her away. At trial, Stafford denied ever kicking defendant or 

Fontaine.

7 Defendant testified that his push did not cause his mother to fall backward. 
6

Fontaine testified that Stafford seemed to have been trying to antagonize 

defendant. She confirmed trading slaps with Stafford after Stafford slapped defendant in 

the head through the open car window. Contrary to Stafford’s testimony, Fontaine 

maintained she was kicked very hard in the sternum by Stafford, causing her to fall 

backward to the ground. Defendant testified that he told Stafford to just leave, and there 

was nothing to prevent her from doing so, but she remained. Defendant did not simply 

walk away because the problem with the cats would continue. He had walked 40 feet to 

get to the Jeep for the purpose of impressing on Stafford the need to leave, and not for the 

purpose of making physical contact. 

Defendant explained in his testimony why he pulled Stafford from the car and 

punched her. He testified that he kept his composure and was under control during the 

incident. After Stafford had slapped and kicked defendant and Fontaine, and taking into 

account the amount of crime in the area, defendant assumed Fontaine had a weapon of 

some sort,8so he punched her to protect himself and his mother. He did not hit Stafford 

after she was subdued. Defendant testified that the punch he threw at Stafford inside the 

car did not land, and he only connected with one punch.

An anonymous caller to 9-1-1 reported that she had heard screaming and walked 

in the alley and did not get too close. The caller stated that “somebody has jumped on 

the, the lady and knocked her out. She feeds the cats, next to the school right here now.” 

The lady’s head was bleeding, she was knocked out, and was out of her truck. The caller 

asked the 9-1-1 operator to “hurry up, cause she’s knocked out her truck is . . . .” When 

asked if somebody assaulted the lady, the caller replied, “Yes, they have to. Her head is 

bleeding, she’s knocked out. She’s out of her truck. . . .” The caller was asked if the lady 

was breathing. She replied that she could not get close and then described a male who 

lives next door to the school and a female, both of whom met the description of defendant 

and his mother. Later in the conversation the caller stated, “But, the keys are in there. I 

8 Defendant testified he did not see a weapon before punching Stafford. At 

another point defendant testified that he punched Stafford because his mother had been 

kicked. 
7

seen that. I walked by you know, but didn’t get too close.” After further discussion, the 

caller told the operator, “I heard some screaming and hollering as I was coming 

towards . . . [coming] east. And I went to see.” 

Stafford was unable to drive home. She did not recall defendant asking her 

questions regarding how she felt or examining her, but defendant testified he asked her 

standard questions to determine her condition based on his firefighter training. After 

being assisted into the Jeep, Fontaine drove Stafford home, following directions give by 

Stafford. Defendant followed in a separate vehicle. Once parked at Stafford’s home, she 

again asked defendant again if he was sure he did not hit her. He again said that she 

tripped, fell, and hit her head. 

A casual acquaintance of Stafford saw her sitting in her vehicle at her home, 

crying with her hands on her face. The acquaintance saw defendant exit from another 

vehicle; she described defendant as having a nervous look. Stafford awoke her roommate 

at 3:00 a.m. Stafford was dazed and unsure if she had been beaten, knocked out, or hit 

her head on something. The roommate saw that Stafford had marks on her face and a cut 

on her head. She told him she thought she had been hit but was not sure. Stafford said 

that people told she hit her head on the car door, but it did not seem right to her, and she 

was pretty sure she was knocked out. 

Stafford went to the hospital on the evening of September 14, where she was 

treated and released. She had a black eye, injuries to her left jaw, swelling to the lips and 

cuts inside her cheek. A physician’s assistant testified that if Stafford struck her head and 

that caused her to pass out, that would be classified as a concussion. 

On September 15, 2013, Stafford decided to make a report to the police at the 

urging of her friends. Stafford told the desk officer that a female and male had expressed 

their disapproval of her feeding cats at their location, the male approached her vehicle 

and opened her car door, she really did not know what happened, and at some point lost 

consciousness. Both suspects told her she fell and hit her face on the driver’s door. She 

came to the police station because her injuries made her think something else had taken 

place. 
8

Defendant presented four character witnesses, including the mother of defendant’s 

children, a Los Angeles City firefighter paramedic, and two captains with the Los 

Angeles Fire Department. Each witness expressed the opinion based on years of 

knowledge that defendant is honest and a non-violent person. Their opinions of 

defendant’s character were not changed by what they saw on the video of the incident.

Called by the defense, Detective Alfredo Reyes testified that he gave both Stafford 

and Fontaine a fair opportunity to explain what happened. He took notes during his 

recorded interview of Stafford, which was conducted in a police vehicle outside of her 

home, to avoid the noise from the animals in the home. Stafford told Detective Reyes 

that defendant and Fontaine told her she had fallen and hit her head. 

Detective Reyes telephoned defendant on September 18, 2014, after he had

interviewed Stafford and watched the video. He was unable to record the call because he 

did not have the adapter for the recording device and it was not his intention to conduct 

an interview. The purpose of the call was to let defendant know he was conducting an

investigation and to confirm defendant’s phone number. He asked no questions about the 

incident. Defendant voluntarily stated there was a confrontation by the art center and 

Stafford slipped and fell to the ground. The detective knew the video does not show her 

falling on loose gravel.9 He took no notes, but immediately input the information from 

defendant into a follow-up investigation report. Defendant came to the station but 

declined to be interviewed on the advice of counsel. 

Defendant presented a different view of the September 18 call from Detective 

Reyes. Defendant testified Reyes asked him if there was anything he would like to say. 

Defendant explained there was an argument, Stafford threw cat food at him, and slapped 

and kicked defendant and his mother. Stafford ended up on the ground in reaction to her 

conduct. Defendant did not tell the detective he had punched Stafford because he 

assumed Detective Reyes wanted to understand what lead up to the punch. 

9 The trial court admonished the jurors that it was up to them to decide what the 

video shows. 
9

Detective Reyes called defendant the next day to get his mother’s phone number. 

This call was recorded but defendant was not asked questions about the incident. No 

questions were asked in the recorded conversation because the detective was trying to 

process a lot of information. Defendant provided his mother’s cell phone number as 

requested. 

Detective Reyes called Fontaine at her work at the post office, catching her as she 

was rushed at the end of the work day, and conducted a recorded interview.10 The 

recorded call was played for the jury. Fontaine said there was an argument, fighting and 

slapping, and she was kicked to the ground. Fontaine suffered a scraped elbow and hit 

her head on the ground. She saw Stafford getting out of the car and thought Stafford 

slipped on the gravel while kicking at defendant,11 who was trying to help Fontaine get 

up. Stafford ended up on the ground, but Fontaine did not think she was unconscious. 

Stafford said she was all right but asked what happened. Fontaine drove Stafford home. 

Detective Reyes testified on direct examination that he did not ask Fontaine 

questions about how she fell to the ground, but she did say Stafford kicked her. When 

asked if there was any reason he did not ask Fontaine how hard she was kicked, he 

explained that he ran out of time and he did not believe Fontaine was telling the truth. 

On cross-examination by the prosecution, the detective testified he had seen the video 

and believed Stafford’s statement about being kicked was a lie.12 He already knew 

10 Fontaine gave inconsistent testimony regarding whether she was aware of the

investigation into the incident prior to receiving the call from Detective Reyes. 

11 Fontaine testified at trial that after viewing the video, she was incorrect in her 

belief that Stafford fell after slipping on gravel. 

12At this point in the testimony, the jury was admonished that it is rare to have a 

crime videotaped, witnesses might be asked what the video shows, and “ultimately, it’s 

your decision, you get to decide what the video shows. You get to decide what the facts 

are” and “it’s ultimately your decision to decide what the facts are in this case, including 

what you see or do not see in the videotape.” Later in the examination of Detective 

Reyes the court reiterated to the jurors that is was “for the jury to decide what is shown or 

not shown on the video.”
10

defendant hit Stafford, so there was no need to ask questions about that. The stories 

given to him by defendant and Fontaine were consistent and not truthful. He saw 

Fontaine propelled backward, but did not see Stafford’s leg extended outside the Jeep. 

He does not believe from the video that Stafford kicked anyone. 

DISCUSSION

Detective Reyes’s Testimony Regarding the Truthfulness of Defendant and Stafford

Over defense objections, Detective Reyes was allowed to testify that after viewing 

video of the charged incident, he was of the opinion Stafford did not kick anyone or slip 

and fall to the ground, and defendant and Fontaine were untruthful when they told him 

they had been kicked by Stafford. Defendant argues it is impermissible for a witness to 

express an opinion about the truthfulness of the statements and testimony of other 

witnesses. He contends the trial court gave inadequate limiting instructions regarding the 

opinions of Detective Reyes. Defendant further argues the trial court abused its 

discretion under Evidence Code section 352 by admitting the testimony. Finally, 

defendant contends the error is necessarily prejudicial, because the opinion testimony was 

ruled inadmissible at the first trial, which resulted in a hung jury.

Admission of Testimony Indicating a Witness is Untruthful

“‘[T]he trial court has broad discretion to determine the relevance of evidence.’

(People v. Cash [2002] 28 Cal.4th [703,] 727.) This discretion extends to evidentiary 

rulings made pursuant to Evidence Code section 352. (People v. Zambrano (2007) 41 

Cal.4th 1082, 1149.)” (People v. Tully (2012) 54 Cal.4th 952, 1010.)

“Defendant is correct that generally a lay witness may not express an opinion 

about the veracity of another person's statement because the statement's veracity is for the 

jury to decide. [Citations.]” (People v. Houston (2012) 54 Cal.4th 1186, 1221.) But the 
11

rule is not absolute, and “courts should carefully scrutinize ‘were they lying’ questions in 

context. They should not be permitted when argumentative, or when designed to elicit 

testimony that is irrelevant or speculative. However, in its discretion, a court may permit 

such questions if the witness to whom they are addressed has personal knowledge that 

allows him to provide competent testimony that may legitimately assist the trier of fact in 

resolving credibility questions.” (People v. Chatman (2006) 38 Cal.4th 344, 384

(Chatman); People v. Riggs (2008) 44 Cal.4th 248, 318 [“‘were they lying’” questions 

are proper when based on the personal knowledge of the witness].) 

“In challenging a witness's testimony, a party implicitly or explicitly urges that 

because a witness is lying, mistaken, or incompetent, the witness should not be believed. 

A party who testifies to a set of facts contrary to the testimony of others may be asked to 

clarify what his position is and give, if he is able, a reason for the jury to accept his 

testimony as more reliable.” (Chatman, supra, 38 Cal.4th at p. 382.) This rule is 

consistent with Evidence Code section 780, which permits the trier of fact to “consider in 

determining the credibility of a witness any matter that has any tendency in reason to 

prove or disprove the truthfulness of his testimony at the hearing, including . . . [¶] . . . [¶] 

(i) The existence or nonexistence of any fact testified to by him.” (See People v. 

Merriman (2014) 60 Cal.4th 1, 84.)

Improper admission of “were they lying” testimony is not prejudicial where the 

trial court instructs the jury on the limited purpose for admission of the evidence and the 

jury could disregard any testimony it found untrue. (See People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 83 [assumed error in admitting doctor’s opinion as to defendant’s 

credibility held nonprejudicial in light of jury instructions].)

Background

The court and counsel discussed the permissible scope of examination of 

Detective Reyes, who was to be called as a defense witness after Fontaine’s testimony.

The prosecutor expected the defense to portray the detective as conducting an interview 
12

biased in favor of Stafford (at her home), as opposed to the way Fontaine was 

interviewed (by telephone, late in her busy work day). Defense counsel13 indicated “of 

course” when asked if he was “going to get into that?” The prosecutor responded that the 

entirety of the investigation should be admissible if the defense intended to attack the 

detective’s investigation. Defense counsel stated he needed to call Detective Reyes to 

clarify that he did not ask Fontaine specific questions, but he did not intend to question 

him about his phone conversations with defendant. The prosecutor stated that Fontaine 

had lied to Detective Reyes at a time she did not know there was a video recording of the 

incident, by making statements to protect her son. The defense intended to argue that 

Stafford was accommodated by being interviewed at her home, in a police car, but 

Fontaine was interviewed by telephone while busy at work. The prosecutor argued the 

detective did try to interview defendant, and the scope and quality of his investigation is 

at issue. Because the defense intended to portray Detective Reyes as conducting an 

unfair investigation, the prosecution was entitled to elicit testimony that the detective had 

contacted defendant. Defense counsel denied any intent to argue about the quality of the 

investigation. The court noted that defendant was going to testify, so his interview 

statement would be admitted. The prosecutor agreed that when defendant testified, his 

prior statement should be admitted, so there was no basis for a finding of prejudice to the 

defense. Defense counsel told the court that if the prosecution was permitted to ask 

Detective Reyes about his interview of defendant, the defense would have to question the 

detective about the interview. The defense therefore intended to “set the stage” for the 

context of defendant’s statements to Detective Reyes. The court found that acceptable, 

noting that the jury would be instructed that unrecorded oral admissions of a defendant 

should be viewed with caution. 

13 Defendant was represented by two attorneys at trial. We refer to defense 

counsel in the singular, although both addressed the trial court on this issue.
13

Relevant Trial Testimony and Jury Admonitions

Called as a defense witness, Detective Reyes was questioned as to his training, 

experience, and report writing duties. He agreed it is always a good idea to provide as 

much information as possible, including a tape recording of an interview, which can be 

used to prepare an accurate police report. The detective was also questioned about taking 

notes, which he agreed could be important depending on the circumstances. It is his goal 

to conduct fair and impartial investigations. 

Detective Reyes called defendant on September 18, 2013, after he had seen the 

video. He had the ability to take notes, but did not do so. He did not record the call 

because he did not have an attachment for the recording device and could not locate one 

at the police station. The purpose of the call was not to conduct an interview, but to let 

defendant know he was conducting an investigation and verify he had his phone number. 

He did not ask defendant any questions, but defendant made voluntary statements. He 

wanted to interview defendant at a separate time when he could record the conversation. 

Defense counsel on several occasions asked questions referring to Detective Reyes’s 

“non-interview” with defendant. Defense counsel also asked, “And it is your testimony 

that you have the prime suspect on the phone, but you don’t ask him a single question 

about this criminal investigation?” The report he wrote of his conversation with 

defendant was based solely on his memory because he took no notes. He was able to 

record his second call to defendant, but that call was only to obtain Fontaine’s phone 

number and he did not conduct an interview. In response to whether he ever interviewed 

defendant, Detective Reyes testified he wanted to do so at the station. 

Detective Reyes testified he gave both Stafford and Fontaine a fair opportunity to 

explain what happened, with no bias or favoritism toward Stafford. The defense 

established that Stafford was interviewed in a police vehicle at her home due to a large 

number of animals inside her home. Detective Reyes did not mention in his report that 

Detective Wong was present for the interview. 
14

Fontaine was interviewed by telephone at her place of employment. Detective 

Reyes did not ask if she would meet him in person for an interview. Detective Reyes 

testified that Fontaine stated in her telephone interview that Stafford hit her head on the 

Jeep, slipped, and fell, and that Stafford had kicked her to the ground. 

Detective Reyes did not ask how hard Fontaine was kicked because he ran out of 

time and he did not believe “Ms. Fontaine was telling me the truth of what took place that 

day.” On cross-examination by the prosecution, Detective Reyes testified he did not 

believe Fontaine’s statement that she was kicked and knocked down. Defense counsel 

objected, and in a discussion at the bench, cited authorities for the proposition that it is 

improper for a witness to express an opinion on the credibility of another witness. The 

trial court disagreed, stating that Detective Reyes was explaining where he was in the 

investigation, and that it would be for the jury to decide what did nor did not happen. 

Defense counsel asked for a limiting instruction. The court then advised the jury that it 

was the jury’s decision as to what is shown on the video recording. Witnesses would 

testify about what took place, “but it’s ultimately your decision to decide what the facts 

are in this case, including what you see or do not see in the videotape.” 

When cross-examination resumed, Detective Reyes testified that after reviewing 

the video, he believed Fontaine had lied about being kicked to the ground. Fontaine also 

told him Stafford fell on loose gravel, and he determined from the video that was also a 

lie. In response to another question he again testified the video does not reflect Stafford 

falling on loose gravel. Following a defense objection, the trial court again reminded the 

jury “to decide what the facts are here. . . . The jury gets to decide what the facts are and 

what the video shows or does not show.” 

Detective Reyes further testified he believed the stories of Fontaine and defendant 

were false and “not truthful.” The trial court again admonished the jury that “it’s 

ultimately for the jury to decide what is shown or not shown on the video.” On re-cross 

examination, Detective Reyes testified that he did not believe Stafford had kicked 

anyone. 
15

Analysis

We begin with two general observations. First, we reject defendant’s attempt to 

establish both error and prejudice by comparing the different rulings made by the trial 

courts in the first and second trials on the propriety of the “were they lying” questions. 

The fact that the trial judge in the first trial precluded the “were they lying” questions 

does not establish an abuse of discretion by the second trial judge. Our task is to review 

the record of the second trial, in its own context, for error and prejudice. 

Second, we question defendant’s assertion that “[t]he critical issue at trial was 

whether Mr. Eulian punched Ms. Stafford after she kicked his seventy year-old mother, 

knocking her to the ground.” The critical issue in this trial was whether defendant used a 

reasonable amount of force in self defense or defense of his mother. A reasonable trier of 

fact could conclude that Stafford had, in fact, kicked Fontaine to the ground, but that 

defendant’s violent response was far beyond what was reasonable under the 

circumstances. On the other hand, a reasonable trier of fact could find that Stafford did 

not kick Fontaine, but under the totality of the circumstances defendant did not react with 

unreasonable force. The entirety of the incident was significant, but whether Stafford 

kicked Fontaine was not necessarily critical to the outcome. 

The defense at trial sought to establish that Detective Reyes conducted an 

incomplete, incompetent, and biased investigation. The defense suggested the detective 

failed to record a conversation with defendant and did not take notes, he failed to conduct 

a full interview with defendant, and he showed favoritism in how he approached his 

interviews with Stafford and Fontaine. Defense counsel questioned Detective Reyes 

about his “non-interview” with defendant. Defense counsel skeptically questioned the 

detective about his failure to ask any questions of the prime suspect in his criminal 

investigation.

Given this context, we conclude the trial court did not abuse its discretion in 

permitting Detective Reyes to explain that his investigation was driven, in part, by his 
16

determination that the descriptions of the incident offered by defendant and Fontaine 

were untruthful in light of what he perceived on the video recording. The trial court 

could reasonably conclude that it was relevant for the prosecution to explain why the 

detective did not ask certain questions, clarify points, and conduct further interviews. 

Moreover, the jury had no need to rely on Detective Reyes’ testimony that defendant and 

Fontaine were untruthful when they told him Stafford fell and hit her head. The video 

recording indisputably established that their descriptions of the manner in which Stafford 

was injured were false, as the recording establishes beyond question that Stafford was 

injured by the punches thrown by defendant. Viewed in this light, the testimony by 

Detective Reyes that defendant and Fontaine were not truthful in describing how Stafford 

was injured does not come within the prohibition against questions asking whether a 

witness who testified at trial was lying. 

The trial court’s ruling permitting Detective Reyes to testify that the recording did 

not show Stafford kicking Fontaine presents a somewhat different issue. Unlike the 

question of whether Stafford was injured by a fall or punches to the head, the video is 

ambiguous on whether she kicked Fontaine—when viewed in slow motion, Stafford’s 

foot is visibly raised, but whether a kick connected, or whether Fontaine was propelled 

backward from the force of a shove by defendant as he punched Stafford in the car, is not 

clear. But even assuming this portion of Detective Reyes’ testimony should not have 

been admitted, we conclude it was not prejudicial. The jury already knew defendant and 

Fontaine had been untruthful, at least in part, when they told Detective Reyes that 

Stafford slipped and hit her head on the car. The trial court repeatedly admonished the 

jury during the testimony of Detective Reyes, and at other times during the trial, that the 

jury was to decide the facts and what was shown by the video. A computer was provided 

for the jury to view the video during deliberations, and there is no reason to believe the 

jury did not make an independent determination of what was shown on the recording. 

And the ultimate issue was not whether Stafford kicked Fontaine; instead, the critical

issue in this case was whether defendant used unreasonable force. There is strong 

evidence supporting a finding defendant used force well in excess of that which would 
17

have been reasonable when he pulled Stafford from the Jeep and punched her into 

unconsciousness. 

We also conclude that the approach of the trial court was not inherently 

prejudicial to the defense. Had the jury determined that Detective Reyes was incorrect in 

his interpretation of the video, the jury could have rationally concluded that his 

investigation was incomplete and unfair, which would have been damaging to the 

prosecution. Given the ambiguity of the video, the mere fact Detective Reyes branded 

Fontaine untruthful regarding the kick could have resulted in the jury discrediting his 

investigation. The disputed testimony had as much potential to be prejudicial to the 

prosecution as to defendant. We are satisfied that any error was not prejudicial. (Cal. 

Const., art. VI, § 13.)

Limitation on Self-Defense under CALCRIM No. 3472

Defendant argues the trial court committed prejudicial error by instructing the jury 

on self-defense pursuant to CALCRIM No. 3472, because Ramirez, supra, 233 

Cal.App.4th 940 held that the instruction “misstates the law of self-defense, erroneously 

preventing the jury from considering a self-defense claim by instructing the jury 

categorically that a person does not have the right to self defense if he provokes a fight or 

quarrel with the intent to create an excuse to use force.” Defendant also argues there was 

no factual support for the instruction. We reject the contention because: the California 

Supreme Court has held that the instruction is a correct statement of law; defendant 

overstates the holding of Ramirez; the instruction was proper under the facts of this case; 

and defendant has not established prejudice. 

Background
18

The trial court apparently had decided14 to instruct the jury pursuant to CALCRIM 

No. 3472, which provides as follows: “A person does not have the right to self-defense if 

he or she provokes a fight or quarrel with the intent to create an excuse to use force.” 

Before instructions were read, defense counsel stated, “This was an instruction requested 

[by the prosecution] over my objection. I think for consistency--the way it reads now is 

confusing--you probably should add the phrase: to self-defense or defense of another 

because that’s what the defense is in this case.” The prosecutor did not object to the 

modification, and the court made the change suggested by defense counsel. The jury was 

instructed, “A person does not have the right to self-defense or defense of another if he or 

she provokes a fight or quarrels with the intent to create an excuse to use force.” 

Contrived Self-Defense

In People v. Enraca (2012) 53 Cal.4th 735, 761 (Enraca) our Supreme Court 

explained that the self-defense doctrine “may not be invoked by a defendant who, 

through his own wrongful conduct (e.g., the initiation of a physical attack or the 

commission of a felony), has created circumstances under which his adversary's attack or 

pursuit is legally justified.” In Enraca, “the trial court instructed the jury on the law as 

we have just explained it. It gave CALJIC No. 5.55: ‘The right of self-defense is not 

available to a person who seeks a quarrel with the intent to create a real or apparent 

necessity of exercising self-defense.’” (Ibid.) While Enraca involved the CALJIC 

analog to CALCRIM No. 3472, the language of the two instructions is materially the 

same. CALCRIM No. 3472 is therefore generally a correct statement of law. (Auto 

Equity Sales, Inc., v. Superior Court (1962) 57 Cal.2d 450, 455.)

Ramirez, supra, 233 Cal.App.4th at page 947, acknowledged that “CALCRIM No. 

3472 states a correct rule of law in appropriate circumstances. Thus, a victim may 

respond to an attacker’s initial physical assault with a physical counterassault, and an 

14 The proposed jury instructions were not discussed on the record. 
19

attacker who provoked the fight may not in asserting he was injured in the fray claim 

self-defense against the victim's lawful resistance. (See, e.g., Fraguglia v. Sala (1936) 17 

Cal.App.2d 738.)” 

The Ramirez court, however, found error in CALCRIM No. 3472 under the facts 

of that case. There was evidence in Ramirez that gang members, including the defendant, 

sought out a rival gang for the purpose of an assault, but when the defendant believed a 

rival gang member had a weapon, he responded with deadly force. Over a lengthy 

dissent by Justice Fybel, the Ramirez court concluded that “CALCRIM No. 3472 under 

the facts before the jury did not accurately state governing law. The blanket rule 

articulated in CALCRIM No. 3472 and reiterated by the prosecutor effectively told the 

jury, ‘A person does not have [any] right to self-defense if he provokes a fight or quarrel 

with the intent to create an excuse to use [any] force.’ In effect, the prosecutor and the 

trial court advised the jury that one who provokes a fistfight forfeits the right of selfdefense if the adversary resorts to deadly force.” (Ramirez, supra, 233 Cal.App. at 

p. 947.) Under the facts in Ramirez, “the instruction made no allowance for an intent to 

use only nondeadly force and an adversary's sudden escalation to deadly violence.” 

(Ramirez, supra, 233 Cal.App.4th at p. 945.)

Analysis

First, the trial court did not err in instructing the jury with the modified version of 

CALCRIM No. 3472. The instruction is a correct statement of law. (Enraca, supra, 53 

Cal.4th at p. 761; Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) 

Although “[t]he instruction misstates the law” according to Ramirez, supra, 233 

Cal.App.4th at p. 950, we believe the opposite is true. CALCRIM No. 3472 is generally 

a correct statement of law, which might require modification in the rare case in which a 

defendant intended to provoke only a non-deadly confrontation and the victim responds 

with deadly force.

Second, defendant reads far too much into Ramirez, which has no application to 
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the facts in this case. The Ramirez court was concerned with a defendant’s use of deadly 

force in self-defense. Defendant’s claim of self-defense and defense of another in this 

case was not based on his use of deadly force. On its face, the analysis in Ramirez has no 

application here.

Third, defendant’s argument that there is no factual predicate for CALCRIM No. 

3472 in this case is incorrect. The jury could rationally conclude that defendant provoked 

the conflict, and that he continued to be the aggressor until Stafford responded, at which 

point defendant knocked her out with a series of punches. It is undisputed that defendant 

walked 40 feet to confront Stafford in her Jeep. As defendant screamed and jabbed his 

finger repeatedly toward Stafford’s face, she leaned away, and eventually threw kibble in 

his direction. Defendant continued to argue with Stafford and gesture toward her, even as 

his mother tried to pull him away. Assuming defendant is correct that he and his mother 

were kicked by Stafford, if the jury determined that Stafford did so in response to 

defendant’s aggressive conduct, defendant did not have the right to use force to settle a 

physical confrontation he arguably created. We do not suggest Stafford was blameless in 

this incident. It would be generous to say that her conduct left much to be desired. 

Nonetheless, defendant’s conduct did provide a factual predicate for instructing with the 

modified version of CALCRIM No. 3472. 

Fourth, assuming there was error, defendant did not suffer prejudice under either 

federal or state law. As stated earlier in this opinion, the ultimate issue was whether 

defendant used unreasonable force upon Stafford by forcibly removing her from the Jeep 

and punching her into unconsciousness. If CALCRIM No. 3472 was erroneously given 

because it was irrelevant under the facts, the error is merely technical and not grounds for 

reversal. (See People v. Cross (2008) 45 Cal.4th 58, 67; People v. Rowland (1992) 4 

Cal.4th 238, 282.) Defendant recognizes that during argument to the jury the prosecutor 

never even mentioned CALCRIM No. 3472, or the principle explained in the instruction. 

Instead, the prosecutor directed the jury to the ultimate issue on self-defense in this case 

by arguing it “all really boils down to this one word here, reasonable.” The prosecutor 

explained over the course of five pages in the reporter’s transcript why defendant’s 
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conduct was unreasonable, including that defendant “went to overkill, an overwhelming 

amount of violence in response to what he’s testified to. . . .” We conclude both that the 

instruction did not improperly affect the verdict, nor is it reasonably probable defendant 

would have obtained a more favorable result had CALCRM No. 3472 not be given. 

(Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 

836.)

Evidentiary Rulings

Defendant contends the trial court committed two evidentiary errors, which 

cumulatively resulted in prejudice requiring reversal. First, he argues the court erred by 

excluding testimony by Ronald Richard that Stafford had been aggressive and belligerent 

one week before the charged incident when he attempted to speak to her about feeding 

the feral cats. Second, he contends the trial court erred by allowing the prosecution to 

introduce the anonymous 9-1-1 reporting the incident. We conclude defendant has not 

shown error or prejudice from either ruling.

Richard’s Testimony

Defense counsel requested permission to question Richard about his contact with 

Stafford one week prior to the charged incident. Specifically, counsel requested to have 

Richard testify to his interaction with Stafford “before Mr. Eulian arrived on the scene.” 

Richard’s proffered testimony would be that he had an interaction with Stafford, he told 

her not to feed the cats and she started calling him names, and then defendant arrived and 

interceded in the conversation, and in the end Stafford agreed to feed the cats down the 

alley. The prosecutor objected to the proposed testimony, arguing introduction of the 

“volatile conversation” with a third party was irrelevant. The trial court permitted the 

defense to call Richard as a witness to say he had a conversation with Stafford and then 

defendant arrived, but the court excluded the details (the “history, yelling, screaming and 
22

cussing”) because the event had occurred one week before the charged incident. Defense 

counsel argued the evidence was admissible because Stafford testified untruthfully that 

Richard was not even there, but the court maintained its position that the interaction 

between Richard and Stafford a week before was inadmissible. Richard later testified 

before the jury that one week before September 14 he saw a Jeep in the alley, he had an 

interaction with the woman about feeding the feral cats, and defendant arrived and also 

spoke to her. Defendant testified that he saw Stafford arguing with Richard the week 

before the incident, and when Richard explained the problems caused by the cats, 

Stafford stated, “this is my motherfucking neighborhood.” Defendant approached 

Stafford, who yelled at him before they discussed the problem with the cats and the 

argument concluded with Stafford saying she would feed the cats down the alley, 

although defendant did not believe that would solve the problem. 

Defendant argues on appeal that Richard’s testimony was relevant and exclusion 

of the evidence prevented the defense from presenting its entire theory to the jury, in 

violation of the Sixth Amendment right to present a defense. He argues that Richard’s 

interaction with Stafford, one week before the charged crimes, was relevant to her 

credibility, because Richard was the only independent witness who could corroborate 

defendant’s testimony that Stafford was angry and belligerent the week before when he 

tried to discuss the problems with the cats. Defendant reasons that the evidence had a 

tendency to prove that Stafford was the aggressor. Defendant makes the additional 

argument that Stafford’s earlier conduct was admissible under Evidence Code section 

1103, subdivision (a)(1), to prove Stafford’s character and establish that she was the 

aggressor. Finally, defendant argues the evidence was not subject to exclusion under 

Evidence Code section 352.

Analysis

“Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Under 

Evidence Code section 210, relevant evidence is evidence ‘having any tendency in reason 
23

to prove or disprove any disputed fact that is of consequence to the determination of the 

action.’ A trial court has ‘considerable discretion’ in determining the relevance of 

evidence. (People v. Williams (2008) 43 Cal.4th 584, 634.) Similarly, the court has 

broad discretion under Evidence Code section 352 to exclude even relevant evidence if it 

determines the probative value of the evidence is substantially outweighed by its possible 

prejudicial effects. (People v. Clark [(2011] 52 Cal.4th [856,] 893.) An appellate court 

reviews a court's rulings regarding relevancy and admissibility under Evidence Code 

section 352 for abuse of discretion. (People v. Linton (2013) 56 Cal.4th 1146, 1181.) 

We will not reverse a court's ruling on such matters unless it is shown ‘“the trial court 

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted 

in a manifest miscarriage of justice.” [Citation.]’ (People v. Brown [(2003)] 31 Cal.4th 

[518,] 534.)” (People v. Merriman (2014) 60 Cal.4th 1, 74.)

Defendant fails to show an abuse of discretion in the trial court’s decision to 

exclude the details of Richard’s interaction with Stafford, both on relevance grounds and 

under Evidence Code section 352. The trial court could reasonably conclude that the 

testimony of defendant, his mother, and Stafford was sufficient to resolve the material 

issues at trial, particularly since a clear video depiction existed as to the charged offense. 

As we have noted several times, the key issue in this case was the reasonableness of the 

force used by defendant on Stafford. Testimony by Richard as to the interaction with 

Stafford a week earlier, at a time before defendant had appeared on the scene, did not 

tend to prove or disprove the reasonableness of defendant’s use of force sufficient to 

render Stafford unconscious. Moreover, this is not a case in which the jury was presented 

with a one-sided view of the facts. Stafford’s belligerence is apparent in both the video 

and her testimony. Defendant was permitted to testify to his observations of Stafford’s 

conduct on the night of her interaction with Richard. The trial court’s decision to focus 

the jury’s attention on the evening of the charged incident, rather than what had occurred 

a week earlier outside of defendant’s presence, was not arbitrary, capricious, or patently 

absurd.

Defendant’s further argument that Richard’s full account of his contact with 
24

Stafford should have been admitted to show Stafford’s character, and accordingly, the 

reasonableness of defendant’s use of force, is forfeited. This issue was not raised in the 

trial court as a basis for admission, and it may not be considered for the first time on 

appeal. “Evidence Code section 353, subdivision (a) allows a judgment to be reversed 

because of erroneous admission of evidence only if an objection to the evidence or a 

motion to strike it was ‘timely made and so stated as to make clear the specific ground of 

the objection.’ Pursuant to this statute, ‘“we have consistently held that the ‘defendant's 

failure to make a timely and specific objection’ on the ground asserted on appeal makes 

that ground not cognizable.”’ (People v. Partida (2005) 37 Cal.4th 428, 433–434.)” 

(People v. Demetrulias (2006) 39 Cal.4th 1, 20–21.)

Assuming the trial court erred, defendant cannot show prejudice. Defendant’s

claim that he was denied the ability to present a complete defense, in violation of the 

Sixth Amendment to the United States Constitution, is belied by trial record. Defendant 

was afforded a full and fair opportunity to present his version of what occurred leading 

up to the punches he delivered to Stafford. We are satisfied the jury had an 

understanding of how defendant and his mother perceived the events. 

The Anonymous 9-1-1 Call

The prosecution filed a pretrial motion seeking to introduce the anonymous 9-1-1 

call made on the night of the incident as a spontaneous statement pursuant to Evidence 

Code section 1240. Defense counsel objected on the ground the caller was not speaking 

from personal knowledge because she had not seen the incident. The prosecutor 

responded that the caller was a percipient witness who was not involved on either side, 

and who corroborates the video and Stafford’s expected testimony. The court stated it 

was unclear whether the caller saw the assault but it was clear that she observed the 

victim lying on the ground bleeding. The court granted the prosecutor’s motion to 

introduce the call, reasoning that because of the existence of the videotape, the recorded 

call was not unduly prejudicial. Although the court expressed the view that caller did not 
25

personally see the incident, she saw the aftermath as she walked through the alley, 

including that Stafford was bleeding and had been knocked out. 

Defendant argues the 9-1-1 call did not comply with requirements of Evidence 

Code section 1240 because the caller did not personally perceive what took place. He 

claims there is no evidence the caller actually witnessed the incident. 

Analysis

“To qualify for admission under the spontaneous statement exception to the 

hearsay rule, ‘an utterance must first purport to describe or explain an act or condition 

perceived by the declarant. (Evid. Code, § 1240, subd. (a).) Secondly, the statement 

must be made spontaneously, while the declarant is under the stress of excitement caused 

by the perception. (Id., subd. (b).)’ (People v. Farmer (1989) 47 Cal.3d 888, 901 

(Farmer), disapproved on other grounds in People v. Waidla [(2000)] 22 Cal.4th [690,] 

724, fn. 6.) For purposes of the exception, a statement may qualify as spontaneous if it is 

undertaken without deliberation or reflection. (See Farmer, supra, at p. 903.) Although 

we have acknowledged that responses to detailed questioning are likely to lack 

spontaneity, we also have recognized that an answer to a simple inquiry may be 

spontaneous. (Id. at p. 904, citing cases.) The trial court must consider each fact pattern 

on its own merits and is vested with reasonable discretion in the matter. (Id. at p. 904.)” 

(People v. Morrison (2004) 34 Cal.4th 698, 718-719.) At issue here is whether the 9-1-1 

caller personally perceived the events described in the call.

Our review of the 9-1-1 call, in conjunction with the video of the incident, leads to 

the conclusion the trial court did not err in admitting the call. The anonymous caller to 9-

1-1 reported that she had heard screaming and walked in the alley and did not get too

close. The video of the incident shows a woman walking into the alley just as defendant 

delivers the final punch to Stafford’s head. The woman walks through the alley, staying 

on the opposite side of the Jeep, away from defendant and Fontaine. The caller stated 

that “somebody has jumped on the, the lady and knocked her out,” which is consistent 
26

with what the woman would have seen as she walked toward the alley. The caller stated 

the woman was bleeding and knocked out, and was outside of her truck, which is entirely 

consistent with the video. The woman said she could not get close— “I walked by you 

know, but didn’t get too close”—a description consistent with the woman walking on the 

far side of the alley to avoid the fray. Finally, the caller displayed her personal 

knowledge by telling the 9-1-1 operator, “I heard some screaming and hollering as I was 

coming towards . . . [coming] east. And I went to see.” 

Given this record, we are satisfied the declarant who called 9-1-1 spoke with 

personal knowledge of events she perceived. We further hold admission of the 9-1-1 call, 

if error, was not prejudicial. The caller merely reiterated what was already clearly shown 

on the video of the incident. She did not state any facts about what might have preceded 

the physical altercation between defendant and Stafford. Her statement that yelling was 

taking place was overwhelmingly established by other testimony. A result more 

favorable to defendant is not reasonably probable in the absence of the 9-1-1 call. 

(People v. Watson, supra, 46 Cal.2d at p. 836.)

Alleged Prosecutorial Misconduct

The same prosecutor presented the first and second trial against defendant. 

According to defendant, the prosecutor knew he was unlikely to obtain a conviction on 

retrial without “Detective Reyes’ inadmissible opinion testimony.” Defendant argues the 

prosecutor knew the detective’s opinions were inadmissible and his purported reason for 

introducing the evidence was “disingenuous.” Further, defendant argues the prosecutor 

misstated the law and impugned the integrity of defense counsel by arguing that the 

purpose of character evidence was to “play on your sympathies” and “consider things 

outside of the evidence.” Finally, defendant contends this court should reach the merits 

of these claims despite the absence of an objection.

These contentions do not require extended discussion. First, “[w]e begin by 

noting the rule requiring claims of prosecutorial misconduct be preserved for appellate 
27

review by a timely and specific objection and request for admonition is well established 

(see, e.g., People v. Linton (2013) 56 Cal.4th 1146, 1205; People v. Whalen (2013) 56 

Cal.4th 1, 52; People v. Clark (2011) 52 Cal.4th 856, 960; People v. Gonzales and Soliz

[(2011)] 52 Cal.4th [254,] 305; People v. Wilson (2008) 44 Cal.4th 758, 800; People v. 

Cole [(2004)] 33 Cal.4th [1158,] 1201; People v. Hill [(1998)] 17 Cal.4th [800,] 820; 

People v. Benson (1990) 52 Cal.3d 754, 794) and long settled (see, e.g., People v. Brice

(1957) 49 Cal.2d 434, 437; People v. MacDonald (1914) 167 Cal. 545, 551; People v. Ah 

Fook (1883) 64 Cal. 380, 383).” (People v. Seumanu (2015) 61 Cal.4th 1293, 1340–

1341.) Defendant concedes no objection was made in the trial court on the ground of 

prosecutorial misconduct. The contention is forfeited.

Second, we find no basis for prosecutorial misconduct. There is no basis to 

conclude the prosecutor presented false evidence. Detective Reyes was consistent in his 

testimony that he did not see Stafford deliver kicks on the video, and that defendant’s and 

Fontaine’s versions of how Stafford was injured were false. The latter portion of his 

testimony is beyond dispute based on what is unambiguously shown on the video. The 

issue of admissibility of Detective Reyes’ opinion testimony was fully litigated outside 

the presence of the jury. The trial court ruled the testimony admissible. Presentation of 

evidence sanctioned by the trial court does not constitute misconduct. 

Third, we find nothing in the argument of the prosecutor to the jury that rises to 

the level of misconduct. The few snippets of argument cited by defendant on appeal are 

taken out of context and do not fairly represent the arguments as presented. In any event, 

“[a] prosecutor is given wide latitude to vigorously argue his or her case and to make fair 

comment upon the evidence, including reasonable inferences or deductions that may be 

drawn from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726; accord, 

People v. Dykes (2009) 46 Cal.4th 731, 768; People v. Cole (2004) 33 Cal.4th 1158, 

1203.) The prosecutor’s argument regarding character evidence falls within the wide 

latitude afforded to argue the weight and significance of the evidence.

Fourth, we hold defendant has not carried his burden of establishing prejudice. 

“‘A defendant's conviction will not be reversed for prosecutorial misconduct’ that 
28

violates state law, however, ‘unless it is reasonably probable that a result more favorable 

to the defendant would have been reached without the misconduct.’ [Citation.]” (People 

v. Wallace (2008) 44 Cal.4th 1032, 1071; People v. Bolton (1979) 23 Cal.3d 208, 214

[“in the absence of prejudice to the fairness of a trial, prosecutor misconduct will not 

trigger reversal”].) 

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P.J.

BAKER, J.