Filed 12/1/15 P. v. Esparza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

CASIMIRO ESPARZA, JR.,

Defendant and Appellant.

F067455

(Fresno Super. Ct. No. F13900454)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. 

Conklin, Judge.

Peter J. Dodd, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and 

Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

A jury convicted defendant of carjacking and second-degree robbery. He urges 

reversal of his conviction on several grounds. We reject them all and affirm.

STATEMENT OF THE CASE

Defendant was charged with carjacking (count I – Pen. Code, § 215, subd. (a); 

second-degree robbery (count II – Pen. Code, § 211); and making criminal threats (count 

III – Pen. Code, § 422). The information also alleged that defendant personally used a 

firearm during the commission of each count. (Pen. Code, § 12022.53, subd. (b).) 

Finally, the information alleged that defendant had a prior serious or violent felony 

conviction (Pen. Code, §§ 667, subds. (a)(1) & (b)–(i); 1170.12, subds. (a)–(d).)

The People eventually moved to dismiss the criminal threats count and the motion 

was granted. Thereafter, a jury convicted defendant of carjacking and second-degree 

robbery, and found the personal firearm use allegation true. The court subsequently 

found the prior conviction allegations true.

The court sentenced defendant to an aggregate term of 33 years, which was 

comprised of the following: nine years on count 1, doubled for the prior serious felony 

conviction to 18 years; a concurrent term of five years for count 2, doubled for the prior 

serious felony conviction to 10 years; a stayed, consecutive term of 10 years for the 

personal firearm use enhancement; and five years for the prior prison term enhancement.

TRIAL EVIDENCE

Diane Seiler’s 911 Call

At 8:14 p.m. on July 25, 2012, Diane Seiler (Seiler) called 911 from a gas station. 

Seiler told the dispatcher that her boyfriend, Casimiro Esparza, Jr.,1 held her at gunpoint 

 

1 Defense counsel contended at trial that defendant was not the perpetrator. The 

jury obviously concluded that Seiler was referring to defendant when she said her 

boyfriend Casimiro Esparza held her at gunpoint and took her vehicle. Therefore, we 

refer to the perpetrator identified in the 911 call as defendant. 
3.

before taking off in her car. Seiler recounted that about two minutes before the 911 call, 

defendant told Seiler she did not care about him and only cared about her car. Defendant 

then punched in her car stereo.

Seiler told the dispatcher that defendant was “going crazy” and had “like three 

guns on him.” Seiler thought defendant was high on “crystal” or “cocaine.” He 

repeatedly shoved a gun in her side and did not want her to pull over. Nonetheless, Seiler 

pulled the car over and “jumped” out of the car.2 Seiler said she had gotten out of the car 

“just in time” and probably would have been shot if she had not exited the vehicle. Seiler 

told the dispatcher defendant had “gotten crazy before but never like this.”

Seiler identified her boyfriend as a Hispanic male named “Casimiro Esparza” who 

was wearing a black shirt and plaid shorts. When asked what her boyfriend’s date of 

birth was, Seiler said something unintelligible before responding: “7-8-72.” Seiler also 

said she lived with Esparza. She described her car as a cream-colored 2006 Chrysler 300.

Surveillance Footage

Sheriff’s Deputy Sher Moua was dispatched to the gas station Seiler described in 

the 911 call. Moua viewed surveillance footage from the gas station. The footage was of 

“mediocre” quality and was not useful for observing “closeup details.” However, Moua 

was able to make out “skin tone, ethnicity, hair color, clothing,” and “some of the 

lettering [on] certain objects.” Moua reviewed the footage and observed a female3 exit 

from the driver’s side of the vehicle, followed by a Hispanic male with a firearm in each 

hand. Both firearms were pointed toward the female. The male got back in to the vehicle 

 

2

It seems clear Seiler was driving the car at least by the end of the incident. Seiler 

tells the dispatcher that she “pulled over” at the gas station. Surveillance footage showed 

a female exiting from the driver’s side of the vehicle.

3 Deputy Moua initially referred to the female in the footage as “Diane” but then 

immediately began saying “the female.”
4.

and the female appeared as if she was “trying to motion or say something to the male 

before the vehicle drove off.”

Recovery of the Vehicle

On July 28, 2012, Sheriff’s Deputy Daniel Buie observed the 2006 Chrysler 300 at 

Seiler’s address. Buie reported the vehicle as having been “recovered” as of that date.

Defendant’s Arrest

On September 20, 2012, Fresno Police Officer Gabriel Ramirez responded to 2723 

W. Indianapolis to apprehend defendant. Defendant refused to come out of the residence 

for approximately 30 minutes after Ramirez arrived on scene. Ramirez told defendant 

“he did the right thing; that our intent was never to shoot him.” Ramirez testified that 

defendant “basically said that he had f[**]ked up, and it was the drugs, and he apologized 

and thanked us for being gentlemen.”

Defendant’s provided his date of birth as October 8, 1969, which was later 

confirmed by police. This is not the date of birth Seiler provided in the 911 call.

Stipulation

The parties stipulated that defendant had been convicted of inflicting corporal 

injury to a spouse or cohabitant on May 26, 2010 and May 7, 2012.4

Other Witnesses

Samuel and Yvonne Esparza5 were both called to testify. Yvonne answered a few 

preliminary questions, saying that defendant was her brother-in-law and that she knew 

Seiler. Yvonne then refused to testify further. Samuel Esparza6 also refused to testify.

 

4 The court had ruled in limine that these two convictions were admissible under 

Evidence Code section 1109.

5 Since Samuel and Yvonne Esparza share a last name with defendant, we will 

refer to them by their first names for clarity. No disrespect is intended.

6 Samuel said, “I’m not going to testify. That is my brother.” When the court 

asked Samuel to specifically identify his brother, he refused to answer.
5.

Seiler herself was called as a witness but she too refused to testify. All three 

witnesses were held in contempt.

Jail Calls

Defendant made several calls from jail that were recorded.7

Closing Arguments

Defense counsel argued to the jury that defendant was not the perpetrator.

I. CHALLENGED STATEMENTS IN DEFENDANT’S JAILHOUSE PHONE 

CALL FALL UNDER THE “ADMISSIONS BY A PARTY” EXCEPTION 

TO THE HEARSAY RULE

Several jail phone calls purportedly made by defendant were recorded. In a phone 

call beginning at 1:26 p.m. on September 22, 2012, the following exchange occurred:

“D[efendant]: They got me for...

“U:

[8] What?

“D: ... carjacking, robbery, and all kinds of shit.

“U: Why’d they get you for robbery? For when you took 

my car?

“D: Man.

“U: Huh?

“D: Yeah whatever the case was, you know what I mean?”

(Italics added.)

Defendant contends these statements were improperly admitted because they do 

not fall under the adoptive admissions exception to the hearsay rule. The Attorney 

General contends defendant adopted Seiler’s statement that he was charged with robbery 

because he had taken her car by answering her question affirmatively.

 

7 The portions of those calls relevant to this appeal are described below.

8 The transcript refers to the other person on the line as “Unidentified.” However, 

on the call, defendant refers to the other person as “Diane.”
6.

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a 

witness while testifying at the hearing and that is offered to prove the truth of the matter 

stated.” (Evid. Code, § 1200, subd. (a).)

9 “Except as provided by law, hearsay evidence 

is inadmissible.” (§ 1200, subd. (b).) There are several exceptions which permit 

evidence that would otherwise be excluded as inadmissible hearsay. One exception 

concerns adoptive admissions. (§ 1221.) Adoptive admissions are statements “which the 

party, with knowledge of the content thereof, has by words or other conduct manifested 

his adoption or his belief in its truth.” (Ibid.)

Defendant argues that his statements in the jail call are not adoptive admissions. 

The Attorney General disagrees, but also notes that the statement falls under another 

exception to the hearsay rule: admissions by a party. (§ 1220.) We agree with the 

Attorney General’s latter contention. The hearsay rule does not prohibit evidence of a 

statement “when offered against the declarant in an action to which he is a party ....” 

(Ibid.) Here, the statement was offered against defendant, who was the declarant and a 

party to the action. Therefore, the evidence was not rendered inadmissible by the hearsay 

rule.10 (Ibid.) Accordingly, we do not reach the issue of whether the statement was also 

an adoptive admission. (See People v. Martinez (2003) 113 Cal.App.4th 400, 408 

[“When a trial court erroneously relies on one hearsay exception to admit evidence that 

otherwise would have been admissible under a different exception, it cannot be said that 

the evidence was admitted in error.”].)

 

9 All future statutory references are to the Evidence Code unless otherwise noted.

10 In his opening brief, defendant makes a related claim that the court erred in 

instructing the jury on adoptive admissions. (See CALCRIM No. 357.) The Attorney 

General notes that any error in that regard would have been invited since the defense 

requested the instruction in question. In his reply brief, defendant acknowledges: “It 

does appear that defense counsel made a decision to request that instruction, and 

therefore cannot complain on appeal that the instruction was given.” We agree that if 

there was any error in giving CALCRIM No. 357, it was invited by defendant.
7.

II. DEFENDANT WAS CHARGED WITH OFFENSES “INVOLVING” 

DOMESTIC VIOLENCE AS THAT TERMINOLOGY IS USED IN 

EVIDENCE CODE SECTION 1109, SUBDIVISION (a)(1)

Defendant challenges the trial court’s ruling that his prior convictions for inflicting 

corporal injury to a spouse or cohabitant on May 26, 2010 and May 7, 2012 were 

admissible under section 1109.

Generally, “evidence of a person’s character or a trait of his or her character ... is 

inadmissible when offered to prove his or her conduct on a specified occasion.” (§ 1101, 

subd. (a).) Section 1109 establishes an exception to this rule by providing that “in a 

criminal action in which the defendant is accused of an offense involving domestic 

violence, evidence of the defendant’s commission of other domestic violence is not made 

inadmissible by section 1101 ....”

11 (§ 1109, subd. (a)(1).) Defendant contends section 

1109 provision does not apply because his trial was not a “criminal action in which the 

defendant is accused of an offense involving domestic violence” (§ 1109, subd. (a)(1)) 

because he was not charged with a domestic violence offense. The Attorney General 

disagrees and contends that the charges against defendant in this case are offenses 

“involving” domestic violence. (§ 1109, subd. (a)(1).)

Resolving this dispute requires us to consider the scope of the phrase “an offense 

involving domestic violence” and then determine whether the charges in this case fall 

within it. Fortunately, section 1109 expressly defines “domestic violence” for us as 

follows:

“ ‘Domestic violence’ has the meaning set forth in Section 13700 of 

the Penal Code. Subject to a hearing conducted pursuant to Section 352, 

which shall include consideration of any corroboration and remoteness in 

time, ‘domestic violence’ has the further meaning as set forth in Section 

6211 of the Family Code, if the act occurred no more than five years before 

the charged offense.” (§ 1109, subd. (d)(3).)

 

11 The evidence may still be rendered inadmissible by section 352. Section 1109, 

subdivisions (e) and (f) contain exceptions to subdivision(a)(1) that are inapplicable here.
8.

Penal Code section 13700 defines “domestic violence” as “abuse” of certain 

persons, including a girlfriend. (Pen. Code, § 13700, subd. (b).) “ ‘Abuse’ means 

intentionally or recklessly causing or attempting to cause bodily injury, or placing 

another person in reasonable apprehension of imminent serious bodily injury to himself 

or herself, or another.” (Pen. Code, § 13700, subd. (a), italics added.)

Given these definitions, we think it is clear defendant was charged with 

committing an “offense involving domestic violence” as that phrase is used in section 

1109. There was evidence that defendant repeatedly shoved a gun in Seiler’s side and 

told her not to pull over. Nonetheless, Seiler pulled over and “jumped” out of the car, 

believing she was going to be shot. This evidence was sufficient to show that defendant 

had “plac[ed] [her] in reasonable apprehension of imminent serious bodily injury ....”

(Pen. Code, § 13700, subd. (a).) By definition, defendant thereby committed domestic 

violence against Seiler as defined in section 1109, subdivision (d)(3).

Defendant seeks to avoid this straightforward conclusion by arguing that a crime is 

not an “offense involving domestic violence” (§ 1109, subd. (a)(1)) unless domestic 

violence is an element of the charged offense. In support of his position, defendant cites 

People v. Story (2009) 45 Cal.4th 1282 and People v. Walker (2006) 139 Cal.App.4th 

782, which dealt with a similar provision: section 1108. Section 1108 permits evidence 

of certain prior sexual offenses in sex offense prosecutions. (§ 1108.) 

We have rejected this argument in the past and do so again here. (People v. Brown 

(2011) 192 Cal.App.4th 1222, 1237–1240 (Brown).)

12 While sections 1108 and 1109 

have several similarities, “there are important statutory distinctions relative to 

defendant’s definitional arguments in this case.” (Brown at p. 1238.) Importantly, “the 

language in section 1108 is not as broad as that used in section 1109.” (Id. at p. 1240.) 

Section 1108, subdivision (d)(1) “ ‘defines “sexual offense” to mean a “crime ... that 

 

12 We decline defendant’s invitation to overrule Brown.
9.

involve[s]” certain categories and enumerated types of sexual misconduct[]’ ” (id. at 

p. 1238, italics removed) while “section 1109, subdivision[] (a) ... define[s] a 

prosecution ‘involving’ domestic violence by reference to definition contained in Penal 

Code section 13700 and Family Code section 6211, neither of which contain an 

enumerated list of offenses....” (Id. at p. 1240.) Therefore, Story and Walker are 

distinguishable.

III. DEFENSE COUNSEL WAS NOT CONSTITUTIONALLY DEFICIENT 

FOR FAILING TO OBJECT TO PORTIONS OF SEILER’S 911 CALL ON 

CONFRONTATION CLAUSE GROUNDS

Defendant contends his counsel was ineffective for failing to object to portions of 

Seiler’s 911 call that purportedly violate the Confrontation Clause under Crawford v. 

Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 547 U.S. 

813 (Davis).

For the reasons explained below, we conclude the objection urged by defendant on 

appeal is meritless. Since “[t]rial counsel is not required to ... advance meritless 

arguments ....” (People v. Jones (1979) 96 Cal.App.3d 820, 827), we reject defendant’s 

ineffective assistance of counsel claim.

A. Confrontation Clause 

The United States Constitution affords criminal defendants the right “to be 

confronted with the witnesses against him ....” (U.S. Const., 6th Amend.) The 

Confrontation Clause’s use of the term “witnesses” means “those who ‘bear testimony.’ ” 

(Crawford, supra, 541 U.S. at p. 51.) Consequently, whether a person is a “witness” 

under the Confrontation Clause turns on whether their statements constitute “testimony” 

(i.e., whether they are testimonial).

One class of statements are clearly nontestimonial: those “made in the course of 

police interrogation under circumstances objectively indicating that the primary purpose 
10.

of the interrogation is to enable police assistance to meet an ongoing emergency....” 

(Davis, supra, 547 U.S. at p. 822.)

Here, the circumstances objectively indicate the primary purpose of Seiler’s 911 

call was to enable police assistance to meet an ongoing emergency. The dispatcher asked 

several questions that sought information relevant to how law enforcement could respond 

to the situation. The dispatcher asked for the license plate of the vehicle, which way the 

vehicle was traveling when it left, and whether Seiler knew defendant’s ultimate 

destination. And Seiler provided additional information for the apparent purpose of 

helping law enforcement safely respond to the emergency: Seiler informed the 

dispatcher: “I don’t know where but my car’s gonna over heat, it’s gonna blow up 

somewhere.” Seiler also told the dispatcher defendant was high and had several guns 

with him.

Even defendant acknowledges that the portions of the call where Seiler tells the 

dispatcher the nature and location of the emergency “probably qualify as having a 

primary purpose of dealing with an ongoing emergency.” But defendant contends that 

later statements made during the call do not appear to have the same primary purpose.13

We will address each of these statements in turn.

1. Seiler’s Statement Concerning her Vehicle “Blow[ing] up”

Defendant points to a statement by Seiler that her car is going to overheat and 

“blow up.” He contends this statement was not made with the primary purpose of 

helping law enforcement respond to an ongoing emergency. We do not agree. That the 

car was not in good working condition and was likely to overheat and “blow up” is 

plainly relevant to how law enforcement might choose to respond to the situation. 

 

13 Defendant initially claimed that the jury improperly heard statements in the 911 

call that refer to him as a “third striker.” In his reply brief, defendant acknowledges that 

this reference was in fact redacted.
11.

And even if that were not the case, we fail to see how admission of the statement 

would be prejudicial to defendant. Defendant claims this statement “left the jury with the 

feeling that [he] might destroy the innocent victim’s car, just compounding their view of 

him as an evil person.” Again, we disagree. Seiler does not say she thinks defendant 

plans to intentionally “blow up” the car. Instead, she said: “[H]e’s gonna take off. I 

don’t know where but my car’s gonna over heat, it’s gonna blow up somewhere. It’s not 

even working good right now.” (Italics added.) The clear import of Seiler’s statement is 

that the car might “blow up” because of overheating, not because defendant would 

purposefully cause the car to explode.14

2. Seiler’s Statements Concerning Defendant

Defendant next references Seiler’s statements to the dispatcher that she thought 

defendant was “high”; that defendant had, minutes prior, punched her car stereo; and that 

defendant had “gotten crazy before but never like this.” He contends these statements 

were not made for the primary purpose of enabling law enforcement to deal with an 

emergency. However, whether a carjacking suspect has been using drugs, has recently 

acted violently and has a history of acting “crazy” is indeed relevant to law enforcement’s 

response.

3. Seiler’s Statements Concerning Where the Incident Began and Where 

Defendant was Possibly Headed

Defendant also cites statements by Seiler regarding where the incident started and 

the fact that she did not believe defendant was heading home when he left with the 

vehicle. But, facts concerning the vehicle’s prior path of travel and defendant’s likely or 

unlikely destinations might well be relevant to how law enforcement would respond to 

the call. 

 

14 Consequently, even if the statement was irrelevant, its admission was not 

prejudicial.
12.

4. Unidentified Speaker’s Statement 

Defendant next references an unclear portion of the 911 call:

“D[ispatch]: No no no no, did it start in front of the Chevron [station], the 

disturbance?

“S[eiler]: Yeah, yeah it’s right right there was a a lady here she seen it all. 

She’s letting me use her phone.

“U[nidentified]: Backed up into my leg.

“S: He went crazy.

“D: Okay.

“U: (Unintelligible).”

During this exchange an unidentified speaker interjects the sentence: “Backed up 

into my leg.” Defendant contends the speaker was referring to him, but the Attorney 

General observes “there is no indication that the comment from the unidentified person 

who says ‘[b]acked up into my leg’ is referring to appellant having done so.” We 

conclude this interjected statement is far too vague to have prejudiced defendant. 

Moreover, even if we assumed the jury paid attention to the statement of the

unidentified speaker, and further assumed the jury interpreted the interjection as 

defendant suggests, we would not find prejudice. As defendant observes elsewhere in his 

brief, the truly disputed “issue in the case was whether appellant was the perpetrator, not 

whether the perpetrator was violent.” The jury necessarily resolved the identity issue 

against defendant and the unidentified speaker’s comment would not have impacted that 

determination. 

5. Seiler’s Statement that She Believed She Would Have Been Shot if She 

had not Exited the Vehicle

Finally, defendant cites Seiler’s statement that if she had not pulled the vehicle 

over, she would have been shot. This statement, defendant contends, “in no way assisted 

the police in dealing with any ongoing emergency.” We disagree. The fact that the last 
13.

person to have seen the suspect believed he was willing to shoot someone in his current 

state would likely assist police in choosing how to deal with the emergency.15

IV. DEFENDANT FORFEITED HIS CLAIM THAT THE TRIAL COURT 

ERRED IN INSTRUCTING THE JURY WITH CALCRIM NO. 362

Defendant next contends the trial court erred in instructing the jury with 

CALCRIM No. 362, which concerns consciousness of guilt.

However, at trial, defendant did not object to the trial court instructing the jury 

with CALCRIM No. 362. “Any claim of error is therefore waived. [Citation.]”

16

(People v. Bolin (1998) 18 Cal.4th 297, 326.)

V. DEFENDANT HAS FAILED TO SHOW PREJUDICE RESULTING FROM 

HIS COUNSEL’S ALLEGEDLY DEFICIENT PERFORMANCE IN 

FAILING TO REDACT PORTIONS OF THE JAIL CALLS

Defendant claims his trial counsel was ineffective for failing to redact certain 

portions of jail calls purportedly played for the jury.17 We conclude the statements were 

not prejudicial.

 

15 Defendant also contends that several of the statements identified above were 

irrelevant. We disagree. One of the elements of robbery is that defendant accomplished 

the taking by “means of force or fear.” (Pen. Code, § 211.) Seiler’s statements that 

defendant was “high,” had punched her car stereo; had “gotten crazy before but never 

like this”; and would have shot her if she had not left the vehicle, are all relevant to the 

“fear” issue. And, as an element of the offense, the issue was indeed contested at trial. 

(See Pen. Code, § 1019.)

16 In his reply brief, defendant argues that under Penal Code sections 1259 and 

1469, we may overlook his lack of objection in the trial court. However, that power is 

discretionary (see People v. Sanchez (2014) 228 Cal.App.4th 1517, 1525; People v. 

Abbaszadeh (2003) 106 Cal.App.4th 642, 649), and we decline to exercise it here.

17 The parties agree that at least one jail call between defendant and Seiler was 

played for the jury. Defendant, however, contends that several additional jail phone calls 

were played for the jury. The Attorney General disagrees, and submits that “only one of 

the statements [defendant] claims should not have been before the jury was actually 

before the jury.” We need not resolve this dispute because we conclude that the 

admission of each of the statements identified by defendant were harmless. 
14.

A. Ineffective Assistance of Counsel Claims

“A defendant seeking relief on the basis of ineffective assistance of counsel must 

show both that trial counsel failed to act in a manner to be expected of reasonably 

competent attorneys acting as diligent advocates, and that it is reasonably probable a 

more favorable determination would have resulted in the absence of counsel’s failings. 

[Citations]. If the defendant fails to establish the prejudice component of the 

ineffectiveness claim, a reviewing court need not determine whether counsel’s 

performance was deficient. [Citation.]” (People v. Hayes (1990) 52 Cal.3d 577, 608.) 

Indeed, that is the preferred course for resolving ineffective assistance of counsel claims.

(Strickland v. Washington (1984) 466 U.S. 668, 697 [“If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will 

often be so, that course should be followed.”].)

Defendant identifies several portions of the jail calls he believes were prejudicial. 

We conclude the admission of these statements was not prejudicial.

1. Admission of Defendant’s Apparent Reference to the Sentencing Scheme 

of Penal Code Section 12022.53 Was Not Prejudicial

Defendant first cites the following exchange in one of the jail calls:

“U[nidentified male]: What happened? (unintelligible).

“M[ale caller – Casey (i.e., defendant)]: Man it’s not good.

“U: What happened?

“M: Not good at all.

“U: Why?

“M: F[**]k. (unintelligible) all kinds of shit. Talkin’ ten twenty life[18]....

 

18 Defendant’s statements are presumably a reference to the sentencing scheme of

Penal Code section 12022.53, which establishes several firearm use enhancements. The

statute is “also known as ‘the 10-20-life law’ [citation] ....” (People v. Jones (2009) 47 

Cal.4th 566, 570.) In this case, the prosecution alleged that defendant violated 
15.

“U: (unintelligible).

“M: Ten twenty life.

“U: Yeah right.

“M: Serious bro.”19

Defendant contends counsel was deficient for failing to redact his apparent 

references to possible prison sentences he might face if convicted.20

“It is fundamental that the trier of fact, be it court or jury, must not consider the 

subject of penalty or punishment in arriving at its decision of guilt or innocence....” 

(People v. Moore (1968) 257 Cal.App.2d 740, 750.) “[P]roviding jurors sentencing 

information invites them to ponder matters that are not within their province, distracts 

them from their factfinding responsibilities, and creates a strong possibility of confusion. 

[Citations.]” (Shannon v. United States (1994) 512 U.S. 573, 579.)

 

subdivision (b) of the statute, which “provides for an additional and consecutive 10–year 

prison term ....” (People v. Oates (2004) 32 Cal.4th 1048, 1052.) Other subdivisions in 

the statute provide for a 20-year prison term and a 25 years-to-life prison term. (Ibid.)

19 Defendant made similar statements in another call:

“M[ale Caller – Casey (i.e., defendant): Yep, I went [to court] today, it doesn’t 

look good.

“F[emale]: Why what they tell you?

“M: Talking 10-20- life.

“F: What?

“M: 10-20- life.”

20 In his opening brief, defendant similarly claimed that his counsel was 

ineffective for failing to redact or censor the 911 call to eliminate a reference to him as a 

“third striker.” After defendant filed his opening brief, the trial court adopted a settled 

statement concerning certain issues raised in this appeal. (Cal. Rules of Court, rule 

8.346.) In his reply brief, defendant acknowledges that the settled statement establishes 

that the 911 call was indeed redacted to exclude reference to defendant’s prior criminal 

history. Therefore, defendant “agrees that this is no longer an issue on appeal.”
16.

Here, the admission of defendant’s statements placed vague sentencing 

information before the jury. However, we need not decide whether the admission of that 

evidence was erroneous in this case because we conclude it was harmless. The jury was 

directly instructed that they “must reach a verdict without any consideration of 

punishment.” (See CALCRIM No. 3550.) We presume the jury followed this instruction 

and thereby avoided any prejudice to defendant. (See People v. Cruz (2001) 93 

Cal.App.4th 69, 73 [“we presume that the jury ‘meticulously followed the instructions 

given.’ ”].)

2. Admission of Defendant’s Statement that he did not Have Money “on” 

Him was not Prejudicial

Defendant next points to a statement in one of the calls where he says he does not 

have “money or nothin’ on me either....” He claims this statement should have been 

excluded because a defendant’s “wealth or lack of wealth is entirely irrelevant to criminal 

charges against him.” However, we do not read this statement as referring to defendant’s 

wealth or lack thereof. When someone says they do not have money “on” them, they 

usually simply mean that they do not have cash on their person. The phrase “on me” is 

not usually included when the speaker is referring generally to their wealth. (“I don’t 

have any money” vs. “I don’t have any money on me.”)21 Defendant was not prejudiced 

by the jury knowing he did not have cash on his person while he was detained.

 

21 The context suggests that defendant may have made the statement to explain 

why he could not call an unnamed female he had been discussing:

“U: Where at? So hey so what do you want me to do?

“M: F[**]k. Um yeah call her up. Hey.

“U: Tell her what?

“M: Huh? F[**]k I (unintelligible) I don’t even have no money or nothin’ on me 

either....

“U: And tell her what?
17.

3. Admission of Defendant’s Statement Concerning a “Pink Slip” was not 

Prejudicial

Defendant also points to the following statement, which is largely 

incomprehensible: “...man um ‘cause she has she has all the information f[**]kin’ you 

know from my the [sic] to get the pink slip from my truck and all that shit.” In his 

briefing on appeal, defendant describes this statement as an attempt to “make 

arrangements for someone to get the ‘pink slip’ to a vehicle....” Defendant then 

extrapolates that the “pink slip” was “apparently” referenced because defendant was 

trying to acquire money. As a result, defendant contends, the statement should have been 

excluded as an improper reference to his financial status. 

We do not believe the context supports defendant’s interpretation of the “pink 

slip” reference. Earlier in the same call defendant says: “[I]n the glove box ... of the 

car.... [¶] ...I got the paperwork ... with my name on it so how in the hell were they 

gonna f[**]kin’ charge me?...” To the extent it can be understood at all, defendant’s 

statement seems to reflect a belief that he had a legitimate defense to the charges against 

him. Therefore, admission of the statement was not prejudicial.

4. Admission of Defendant’s Statement Concerning an Attorney’s Phone 

Number was not Prejudicial

Defendant next relies on another statement: “[T]ell Diane ... to ... have ... her 

give you the number for Bianca and then there’s an attorney’s number right there too in 

the text to see what they say.” Defendant argues the prosecution cannot use a person’s 

invocation of the right to counsel against them. (Citing People v. Coffman and Marlow 

(2004) 34 Cal.4th 1, 65.) It is true that a prosecutorial argument that “penalizes exercise 

of the right to counsel is ... prohibited. [Citations.]” (Ibid., italics added.) But in this 

 

“M: And see what’s going on. Try to call right now. See if we can do it three 

way.

“U: Alright hold on (unintelligible).

“M: I don’t have three-way. I don’t have three-way.”
18.

case, defendant was not penalized – the prosecutor did not attempt to use defendant’s 

exercise of his right to counsel against him. And even “ ‘if the remarks had the 

objectionable effect of drawing the jury’s attention to the exercise of protected rights,’ the 

verdicts were certainly not affected by this ‘ “brief and mild reference” ’.... [Citation.]” 

(Id. at p. 66.)

5. Admission of Defendant’s and Seiler’s Statements Concerning Their 

Troubled Relationship was not Prejudicial

Finally, defendant points to a portion of one jail call where Seiler told defendant 

she loved him and said she tried to do “everything” for him. Seiler later recounted on the 

call that defendant had told her in the past she was “boring.”22 Defendant contends these 

portions of the call improperly seek to evoke sympathy for Seiler. The Attorney General 

counters that defense counsel had a legitimate tactical reason for allowing these 

statements: They were consistent with the defense theory that Seiler falsely accused 

defendant on the 911 call because they had a troubled relationship.

The closing arguments of defendant’s trial counsel support the Attorney General’s 

position. Defense counsel argued to the jury: 

“I am not going to go through the entire transcript of the entire jail call. 

Again I would encourage you to listen to it. But you will recall from that, 

and you can refresh yourselves, you can refresh your memory as to that 

again by playing the jail call, and by reviewing the transcript as an aid to 

that, they have a troubled relationship.”

Counsel later argued:

 

22 Seiler appears to have also recounted that defendant had called her “ugly” and 

“fat.”

“U: Mm hmm. But you told me I’m boring....

“D: Do you hear me?

“U: ...I’m ugly, I’m fat.”
19.

“She [Seiler] is not upset at the idea that he [defendant] held her up at 

gunpoint because that never happened. He never did that. What is 

upsetting her is she worked so hard to keep up the [sic] end of the 

relationship. She does everything for him. She makes breakfast for him. 

She makes eggs the way he likes them. And notwithstanding that, he 

rejects her.”

Defendant responds by arguing that trial counsel could have made the same 

argument relying solely on the 911 call because that call also demonstrated turbulence in 

the relationship. However, when we are faced with an ineffective assistance of counsel 

claim, we “will not second-guess trial counsel’s reasonable tactical decisions. 

[Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) Trial counsel could have 

reasonably concluded that additional evidence of the turbulence in defendant’s 

relationship with Seiler (beyond the 911 call) was helpful.23

DISPOSITION

The judgment is affirmed.

_____________________

 POOCHIGIAN, J.

WE CONCUR:

______________________

GOMES, Acting P.J.

______________________

FRANSON, J.

 

23 The settled statement adopted by the trial court relates the following: During an 

off-the-record discussion, defense counsel “acquiesced to allow all of [defendant’s jail 

call with Seiler] to be played for tactical reasons....”