Filed 3/19/21 P. v. Soltero CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ABRAHAM SOLTERO,

Defendant and Appellant.

 B302522

 (Los Angeles County

 Super. Ct. No. LA086162)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Joseph A. Brandolino, Judge. Affirmed.

Joshua L. Siegel, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and David F. Glassman, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________
2

Abraham Soltero appeals from a judgment entered after he 

pleaded no contest to possession of a firearm by a felon with a 

gang enhancement allegation, and a jury found him guilty of first 

degree murder and found firearm and gang enhancement 

allegations to be true as to the murder. The trial court sentenced 

him to 50 years to life in prison. He contends the trial court 

erred in excluding evidence of the victim’s 20-year-old 

misdemeanor conviction for sexual battery, which he sought to 

introduce at trial to show the victim’s character for violence. He 

also contends the prosecutor committed prejudicial misconduct 

during closing argument by misstating the law regarding 

premeditation and deliberation, and his trial counsel rendered 

ineffective assistance in not objecting to the argument. Rejecting 

Soltero’s contentions, we affirm the judgment.

BACKGROUND

I. Prosecution Case

On June 2, 2017, the date of the shooting, Richard 

Aukschun, the victim, was working at an automobile repair shop. 

He had been released from jail recently, and the owner of the 

shop wanted to help him by hiring him for miscellaneous jobs so 

he could earn money to buy food.

Artur Gukasyan, a witness who testified at trial, also 

worked at the automobile repair shop. While test-driving a 

customer’s car between 2:00 and 2:30 p.m. on June 2, 2017, he 

observed defendant Soltero writing graffiti on the shop’s wall. As 

Gukasyan sat inside the car at a red light, he called out to 

Soltero, “ ‘Are you having fun?’ ” Soltero responded by making a 

hand gesture, using both hands. Gukasyan was unfamiliar with 

the gesture. When the light turned green, Gukasyan turned and 

pulled the customer’s car into the shop. A video camera in 

Gukasyan’s personal car, which was parked at the shop, recorded 
3

this encounter, and the prosecutor played the recording for the 

jury. 

Joseph Miconi, a witness who testified at trial, was also 

working at the automobile repair shop on June 2, 2017. He 

observed Aukschun outside the shop talking to a Latino man who 

was holding two cans of spray paint. He heard Aukschun tell the 

man, “ ‘You’re coming by my work and fucking up my job.’ ” 

Then, Aukschun and the man began speaking in Spanish, and 

Miconi could not understand what they were saying. Miconi told 

Aukschun, “ ‘Let’s go. I need some help [in the shop].’ ” Miconi 

saw Aukschun and the man shake hands, so Miconi believed 

“everything [the argument between them] was done.” Miconi and 

Aukschun walked back into the shop and returned to working on 

a car. 

At 2:44 p.m. on June 2, 2017, Hagop Fesstekjian, the 

brother-in-law of the shop’s owner, received two phone calls from 

Aukschun. Fesstekjian recorded the calls, as was his general 

practice, and the prosecutor played the audio for the jury. During 

the first call, Aukschun told Fesstekjian: “Edgar’s homeboy just 

came through this fucken parking lot walking with a spray can 

and spray painted the barrio all over the side of the fucken 

building on the front street. And I got into his ass, homeboy.” 

Fesstekjian testified that Edgar was the manager of a storage 

business. Fesstekjian allowed Aukschun to sleep at the storage 

shed he rented from that business. 

The first call continued with Aukschun telling Fesstekjian: 

“And he -- he said -- he still was trying to spray paint on the 

fucken walls. He goes, you know who I am, you know who Edgar 

is . . .? He brought a car here yesterday . . ., this, this, and that. 

Causing all kinds of fucken drama, he’s drunk as fuck, all high 
4

and shit with a spray can spray painting all over the fucken side 

of the building on the main street.” Aukschun suggested 

Fesstekjian “call Edgar to deal with it.” Fesstekjian said he 

would. The first call ended, and then Aukschun called back to 

tell Fesstekjian the name of the person writing graffiti was 

“Suspect.”

During his testimony, Fesstekjian described Aukschun as 

follows: “He was a very hyper guy. If he talks, he talks fast, and, 

if he walks, he walks fast. He talks with a lot of voice, not, like, 

soft voice. So when somebody -- someone meets him, it’s [sic] 

intimidated and excited.”

After Aukschun made the two phone calls, Miconi and the 

shop owner saw Aukschun run into and through the shop. 

According to the shop owner, Aukschun appeared to be “running 

very scared.” Soltero, who was holding a gun, was chasing 

Aukschun. Aukschun, who was unarmed, ran into a storage 

room. The shop owner and Miconi saw Soltero stand at the door 

to the storage room, point his gun at Aukschun, and fire, killing 

Aukschun.1 Soltero then pointed his gun at the shop owner and 

pulled the trigger. The gun jammed. As Soltero ran out of the 

shop, Miconi kicked him from behind, but Soltero kept running. 

The prosecutor played for the jury surveillance video taken 

outside the shop. The video showed (1) the encounter between 

Aukschun and Soltero outside the shop; (2) Soltero leaving the 

area; (3) Soltero returning several minutes later; and (4) Soltero 

running away from the shop. 

1 When police officers inspected Aukschun’s body a few days 

after the shooting, they found no scratches or defensive wounds 

on him. 
5

The prosecution also presented evidence demonstrating 

Soltero was a member of the Logan Heights criminal street gang

with the moniker “Suspect,” and the automotive repair shop was 

located in the gang’s territory. The prosecution’s gang expert 

opined that a hypothetical shooting committed under the 

circumstances present here would benefit the gang. 

II. Defense Case

The parties stipulated that Aukschun had 

methamphetamine in his system at the time of his death, 

according to a toxicology report. A pharmacist, who testified at 

trial, opined that based on the toxicology report, Aukschun had 

used methamphetamine sometime in the day before the shooting, 

and he would have been under the influence of 

methamphetamine at the time of the incident. The pharmacist 

also testified that methamphetamine could cause a person to act 

unpredictably and violently. 

III. Verdicts and Sentence

During trial, Soltero pleaded no contest to possession of a 

firearm by a felon (Pen. Code, § 29800) with a gang enhancement 

(Pen. Code, § 186.22, subd. (b)). The jury found him guilty of first 

degree murder (Pen. Code, § 187, subd. (a)) and found firearm use 

(Pen. Code, § 12022.53, subds. (b)-(d)) and gang enhancement 

allegations to be true. 

The trial court sentenced Soltero to 50 years to life in 

prison: 25 years to life for murder plus 25 years to life for the 

firearm enhancement. The trial court imposed and stayed the 

sentence for possession of a firearm by a felon. 
6

DISCUSSION

I. Exclusion of Evidence of Victim’s 20-Year-Old 

Misdemeanor Conviction for Sexual Battery

Soltero contends the trial court abused its discretion under 

state law and violated his federal constitutional rights to due 

process and to present a defense when it excluded evidence of the 

victim’s 20-year-old misdemeanor conviction for sexual battery.

A. Proceedings below

At a pretrial hearing, the prosecution moved to exclude 

evidence of the victim’s May 1996 misdemeanor conviction for 

sexual battery. The prosecutor informed the trial court the 

victim also had misdemeanor convictions in 2006 and 2015 for 

failing to register as a sex offender. The prosecutor argued the 

misdemeanor sexual battery conviction was not “relevant at all as 

to any of the interactions between the defendant and the . . . 

victim and would simply inflame the jury, if they knew that he 

was a sex . . . offender. 

The trial court inquired whether the defense sought to 

introduce evidence of the 1996 sexual battery conviction. Defense 

counsel responded: “Well, since we don’t know what the 

interaction between them [Soltero and the victim] was, we don’t 

know the nature of their -- what they were talking about, I do 

think that it is potentially relevant. And it’s a sexual battery 

conviction.” The prosecutor replied: “Even if there was some 

type of interaction, I don’t understand how it would be at all 

relevant, the fact that he was a sex offender or a -- or he had 

committed sexual battery back in 1995 [sic], and I think that, in 

order for that to somehow become relevant, there would have to 

be evidence presented that this somehow -- that there was some 

type of nexus between that; otherwise, it’s pure speculation.” 
7

Defense counsel stated: “I’ll just submit on the fact that I do 

believe that [the victim] -- that his convictions and his status as a 

sex offender are relevant to -- to the person that he was.” 

Defense counsel added, “the court could give a limiting 

instruction that -- and let the jury know what they can and 

cannot use that for, the information for.” 

The trial court granted the prosecution’s request to exclude 

the evidence, explaining: “[H]is character evidence -- I just don’t 

see that that’s character evidence that’s highly relevant. It 

doesn’t really go to – well, I mean, sexual battery doesn’t go to the 

violent nature of the alleged victim, but, more importantly, I 

think it is remote. I think that failure-to-register convictions are 

just not terribly relevant, other than in the remoteness analysis. 

We’re talking over 20 years’ conviction [sic], occurring over 20 

years ago, and it’s a misdemeanor, and given the nature of the 

conviction, I just think that any possible probative value is, in my 

view, at this point -- is highly outweighed by any potential undue 

prejudice for the jury hearing that information. So I’m inclined 

not to allow it. [¶] That’s without prejudice. As with every 

ruling I make, if it comes up during the course of trial, if counsel 

want to have the court reconsider something, just bring it to my 

attention, outside the presence of the jurors. But I’m not inclined 

to allow that at this point.” Defense counsel did not revisit the 

issue.

Soltero’s theory of the case, as presented to the jury, was 

that he was guilty of voluntary manslaughter, not first degree 

murder, because he killed the victim as a result of sudden quarrel 

or in the heat of passion after “verbal provocation” (the argument

outside the shop). 
8

B. Applicable law and analysis

Under Evidence Code section 1101, subdivision (a),2

“evidence of a person’s character or a trait of his or character . . . 

is inadmissible when offered to prove his or her conduct on a 

specified occasion.” There are exceptions to this general rule. As 

pertinent here, section 1103, subdivision (a)(1) provides that in “a 

criminal action, evidence of the character or a trait of character 

(in the form of an opinion, evidence of reputation, or evidence of 

specific instances of conduct) of the victim of the crime for which 

the defendant is being prosecuted is not made inadmissible by 

Section 1101 if the evidence” is “[o]ffered by the defendant to 

prove conduct of the victim in conformity with the character or 

trait of character.” Where the defendant’s theory of the case is 

that the victim’s “violent character was circumstantial evidence 

of how [the victim] acted at the scene,” the defendant need not 

show he was aware of the victim’s prior violent conduct. (People 

v. DelRio (2020) 54 Cal.App.5th 47, 55.)

The trial court may exclude evidence that is admissible 

under section 1103 pursuant to “section 352 if admitting the 

evidence would have confused the issues at trial, unduly 

consumed time, or been more prejudicial than probative.[3] 

[Citations.] The trial court must always perform its gate keeping 

2 Further undesignated statutory references are to the 

Evidence Code.

3 Under section 352, “The court in its discretion may

exclude evidence if its probative value is substantially 

outweighed by the probability that its admission will (a) 

necessitate undue consumption of time or (b) create substantial 

danger of undue prejudice, of confusing the issues, or of 

misleading the jury.”
9

function pursuant to [section] 350 to exclude evidence that is 

irrelevant.” (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828.) 

We review the trial court’s exclusion of section 1103 character 

evidence for abuse of discretion. (People v. DelRio, supra, 54 

Cal.App.5th at p. 53.)

Soltero contends the trial court abused its discretion under 

state law and violated his federal constitutional rights to due 

process and to present a defense when it excluded evidence of the 

victim’s 20-year-old misdemeanor conviction for sexual battery 

because the evidence “would have supported the overall defense 

theory that appellant was not guilty of the charged first degree 

murder because he was acting in a heat of passion arising from 

provocation by the decedent.” For the reasons explained below, 

we disagree with Soltero’s contention of error.

Misdemeanor sexual battery involves a touching “against 

the will of the person touched . . . for the purpose of sexual 

arousal, sexual gratification, or sexual abuse.” (Pen. Code, 

§ 243.4.) Soltero has not demonstrated the relevance of evidence 

of the victim’s sexual battery conviction to the facts and 

circumstances of this case. He has not explained how the victim’s 

character as a misdemeanor sexual battery offender tends to 

prove the victim provoked Soltero in this case. After the trial 

court denied without prejudice Soltero’s request to introduce this 

evidence to show “the person that he [the victim] was,” Soltero 

never presented to the court any additional information 

regarding the relation between the victim’s sexual battery 

conviction and the victim’s conduct on the day of the murder. 

Even assuming the evidence was relevant, the trial court 

did not abuse its discretion in excluding it under a section 352 

analysis. The conviction occurred 21 years before the shooting, 
10

diminishing its probative value as to whatever character trait 

Soltero sought to introduce it to prove. There was a substantial 

danger of confusing the issues or misleading the jury, in asking 

the jury to relate this remote conviction to the victim’s conduct on 

the date of the murder. Finally, there was a substantial danger 

of inflaming the jury by labeling the victim as a “sex offender,” 

when it was not clear his character as a sex offender was in any 

way related to his conduct on the day of the murder. Given the 

minimal probative value of this evidence, if any, the trial court 

did not violate Soltero’s federal constitutional rights to due

process or to present a defense, and it is inconceivable Soltero 

could have been prejudiced (under a state law or federal 

constitutional standard) by the exclusion of this evidence.

II. Prosecutor’s Argument on Premeditation and 

Deliberation

Soltero contends the prosecutor committed prejudicial 

misconduct during closing argument by misstating the law 

regarding premeditation and deliberation. “A defendant may not 

complain on appeal of prosecutorial misconduct unless in a timely 

fashion, and on the same ground, the defendant objected to the 

action and also requested that the jury be admonished to 

disregard the perceived impropriety.” (People v. Thornton (2007) 

41 Cal.4th 391, 454.) Although defense counsel did not object to 

the prosecutor’s argument to the jury regarding premeditation 

and deliberation, we nonetheless review the merits of Soltero’s 

claim of prosecutorial misconduct because Soltero argues his trial 

counsel rendered ineffective assistance in not objecting to the 

argument.

To establish ineffective assistance of counsel, a defendant 

must demonstrate that his counsel’s performance fell below an 
11

objective standard of reasonableness under prevailing 

professional norms and that he was prejudiced by the deficient 

performance. (Strickland v. Washington (1984) 466 U.S. 668, 

687-688, 691-692; People v. Williams (1997) 16 Cal.4th 153, 215.)

A. Proceedings below

Using CALCRIM No. 521, the trial court instructed the 

jury:

“The defendant is guilty of first degree murder if the People 

have proved that he acted willfully, deliberately, and with 

premeditation. The defendant acted willfully if he intended to 

kill. The defendant acted deliberately if he carefully weighed the 

considerations for and against his choice and, knowing the 

consequences, decided to kill. The defendant acted with 

premeditation if he decided to kill before completing the act that 

caused death.

“The length of time the person spends considering whether 

to kill does not alone determine whether the killing is deliberate 

and premeditated. The amount of time required for deliberation 

and premeditation may vary from person to person and according 

to the circumstances. A decision to kill made rashly, impulsively, 

or without careful consideration is not deliberate and 

premeditated. On the other hand, a cold, calculated decision to 

kill can be reached quickly. The test is the extent of the 

reflection, not the length of time.

“The People have the burden of proving beyond a 

reasonable doubt that the killing was first degree murder rather 

than a lesser crime. If the People have not met this burden, you 

must find the defendant not guilty of first degree murder and the 

murder is second degree murder.” 
12

During the prosecutor’s initial argument to the jury, before 

defense counsel gave her closing argument, the prosecutor stated: 

“So, first degree murder is a killing with malice aforethought, but 

it requires it to be willful, deliberate, and premeditated. It adds 

those elements to it. That makes it a first degree murder. The 

willful part is what we talked about in terms of express malice. 

Remember I said you have to have express malice in order to 

have first degree murder? That’s the willful part. The deliberate 

part and the premeditated part is what was being thought of 

before.

“And, now, generally, at this point, a lot of people start to 

think, ‘Well, to have premeditation and deliberation, it requires 

some type of, you know, like when you watch these mafia movies 

and they’re in the basement and playing poker and smoking 

cigars and, “We’re going to kill Little Johnny,” and then they plot 

this whole thing, and then they go to some car, and they shoot 

the guy in the back of the head, and then they’re, like, you know, 

“Leave the gun. Take the cannolis,” ’ that type of thought process 

that was required. That is truly first degree murder; right? But 

that’s not what is required for first degree murder.

“We do these acts of deliberation and premeditation on a 

daily basis, especially here in the City of Los Angeles. Think 

about it: Every day, you are premeditating and deliberating. If 

you’re driving down Van Nuys Boulevard, you’re thinking, ‘Oh, 

my God, I’m late to court,’ but then you’re thinking, ‘Oh, I could 

be late to work. But who cares? It’s not going to start for another 

hour.’ So, at that point, you’re like, ‘I’m going to stop for the 

yellow light. It’s not worth the risk.’ That’s a form of 

premeditation and deliberation. Now you’re leaving court, and 

you’re going down Van Nuys Boulevard, and you’re, like, ‘I need 
13

to get home because that was a long, tough day of waiting and 

hearing lots of arguments.’ So you’re rushing home, and you see 

that yellow light, and you really put the gas on because you want 

to get home. That’s premeditation and deliberation. You’re 

willing to risk. Sometimes, there’s a risk of taking a -- that 

yellow light. Some other moron may be on the street and hit you 

because they’re rushing another way. Every day, you see people 

make mistakes, and, every day, you’re weighing the consequences 

when you’re driving. We do this every day, and we do this 

instantly. That’s premeditation and deliberation.” Defense 

counsel did not object to the prosecutor’s use of the yellow light 

scenario to demonstrate premeditation and deliberation, but on 

appeal Soltero contends this portion of the argument constitutes 

prosecutorial misconduct because it misstates the law regarding 

premeditation and deliberation.

The prosecutor continued on in his initial argument to the 

jury to describe the facts and circumstances demonstrating 

premeditation and deliberation in this case (e.g., Soltero 

returning to the victim’s place of work after walking away several 

minutes before, and chasing the victim before shooting him). 

B. Applicable law and analysis

“A prosecutor’s conduct violates the Fourteenth 

Amendment to the federal Constitution when it infects the trial 

with such unfairness as to make the conviction a denial of due 

process. Conduct by a prosecutor that does not render a criminal 

trial fundamentally unfair is prosecutorial misconduct under 

state law only if it involves the use of deceptive or reprehensible 

methods to attempt to persuade either the trial court or the jury. 

Furthermore, and particularly pertinent here, when the claim 

focuses upon comments made by the prosecutor before the jury, 
14

the question is whether there is a reasonable likelihood that the 

jury construed or applied any of the complained-of remarks in an 

objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34, 

44; People v. Cash (2002) 28 Cal.4th 703, 733.) “ ‘Although 

counsel have “broad discretion in discussing the legal and factual 

merits of a case [citation], it is improper to misstate the law.” ’ ” 

(People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.)

Soltero’s trial counsel was not ineffective in declining to 

object to the prosecutor’s argument because the prosecutor did 

not misstate the law in using the yellow light scenario as an 

example of premeditation and deliberation. Indeed, the 

prosecutor’s use of the yellow light scenario as an example of 

premeditation and deliberation is not novel. (See, e.g., People v. 

Avila (2009) 46 Cal.4th 680, 715 [rejecting prosecutorial 

misconduct claim based on prosecutor’s use of yellow light

analogy]; People v. Wang (2020) 46 Cal.App.5th 1055, 1086-1087 

[same].) Consistent with the law on premeditation and 

deliberation, the prosecutor here described “carefully weigh[ing] 

the considerations for and against [the] choice and, knowing the 

consequences, decid[ing]” to run the yellow light. (CALCRIM No. 

521.) The prosecutor described a scenario where you see a yellow 

light; you speed up because you are in a hurry to get home, and 

you do not want to stop and wait at the light; you realize there is 

a risk of accident, but you decide you are willing to accept the 

risk because you want to get home. The prosecutor did not posit 

a scenario where the driver proceeded rashly or impulsively

without evaluating the choice.

Soltero argues the prosecutor’s use of the word “instantly” 

rendered his argument a misstatement of the law regarding 

premeditation and deliberation. As set forth above, after 
15

describing the yellow light scenario, the prosecutor stated: 

“Every day, you see people make mistakes, and, every day, you’re 

weighing the consequences when you’re driving. We do this every 

day, and we do this instantly. That’s premeditation and 

deliberation.” (Italics added.) We have no reason to believe the 

jury “construed or applied any of the complained-of remarks in an 

objectionable fashion.” (People v. Morales, supra, 25 Cal.4th at p. 

44.) What the prosecutor described is an instantaneous decision 

to weigh the consequences of a choice. A choice that is made 

rapidly, but after reflection and weighing of consequences, is a 

premeditated and deliberate choice.

We disagree with Soltero’s assertion that the prosecutor 

inappropriately “equated a decision to kill with decisions made 

while driving in traffic.” As the Court of Appeal explained in 

People v. Wang, supra, 46 Cal.App.5th 1055, “In the context of 

the argument it is apparent that the prosecutor did not equate 

the gravity of a decision to kill with a traffic decision, but used 

the illustration to show that, like a decision to drive through a 

yellow light, a premeditated and deliberate decision to kill could 

be made very quickly. Indeed, after using the traffic light 

analogy, the prosecutor reviewed the many conscious decisions 

appellant had to make before the shootings occurred.” (Id. at p. 

1086.)

Even if Soltero could establish his trial counsel’s deficient 

performance in failing to object to the prosecutor’s argument, his 

ineffective assistance of counsel claim would still fail because he 

cannot establish prejudice—“a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” (Strickland v. Washington, supra, 

466 U.S. at p. 694.) “A reasonable probability is a probability 
16

sufficient to undermine confidence in the outcome.” (Ibid.) We 

reject Soltero’s assertion that in the absence of the prosecutor’s 

use of the yellow light example, there is a reasonable probability 

“that at least some jurors would have found that the murder 

charge had not been proven beyond a reasonable doubt.” The 

evidence of premeditation and deliberation in this case was 

strong. Soltero walked away after the argument, came back 

several minutes later, chased the unarmed victim, and shot and 

killed him. If the prosecutor committed misconduct—which we 

already concluded he did not—trial counsel’s decision not to 

object was harmless.4

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

4 We reject Soltero’s contention that cumulative error 

requires reversal of his conviction. As explained above, there are 

not multiple errors here to cumulate.