IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

No. H046446

(Santa Clara

County Superior

Court No.

C1364062)

____________________________

The Honorable Julia Alloggiamento, Judge

_____________________________

PETITION FOR REVIEW

After the Decision of the Court of Appeal, Sixth Appellate District,

Filed January 19, 2022, Reversing the Sentence but

Otherwise Affirming the Judgment

_____________________________

SIXTH DISTRICT APPELLATE PROGRAM

JONATHAN GROSSMAN 154452

Staff Attorney

95 S. Market Street, Suite 570

San Jose, CA 95113

(408) 241-6171

fax: (408) 241-2877

jonathan@sdap.org

Attorney for Appellant

Shaun Alexander Moore

TABLE OF CONTENTS

ISSUES PRESENTED	1

Reason to Grant Review	2

Statement of the Case

Statement of Facts

Argument

I.

CONCLUSION

[To be completed]

TABLE OF AUTHORITIES

CASES

[To be completed]

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

No. H046446

(Santa Clara

County Superior

Court No.

C1364062)

PETITION FOR REVIEW

TO:	The Honorable Tani Cantil-Sakauye, Chief Justice, and the Associate Justices of the California Supreme Court:

Shaun Alexander Moore, appellant in the Court of Appeal, respectfully petitions this Court for review of the unpublished decision by the Court of Appeal, Sixth Appellate District, filed on January 19, 2022, and attached as exhibit A to this petition.

Issues Presented

1. Since a felon is allowed to possess temporarily a firearm in self-defense (see People v. King (1978) 22 Cal.3d 12, 24-26), was counsel ineffective for failing to exclude evidence appellant was prohibited from possessing a firearm?

2. Did the prosecution commit misconduct in cross-
examining the defendant by asking argumentative questions and other questions that called for speculation, and in argument by misstating the law concerning voluntary manslaughter?

3. Does cumulative prejudice require reversal?

Statement of the Case

An information was filed on November 12, 2015. (1CT 72-74.) As amended, appellant was charged with murder with personal use of a firearm leading to great bodily injury. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d).) It also alleged he suffered a prior "strike" conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)). (1CT 75-77.)

After five days of testimony, the jury convicted appellant of first degree murder and found the firearms enhancement to be true. (3CT 541-544.) The court found the status enhancements to be true. (3CT 550.)

The court sentenced appellant on October 26, 2018 to serve 80 years to life in prison. It imposed 25 years to life for murder, which was doubled because of the strike, and added 25 years to life for the firearms enhancement. A determinate term of five years was added because of the prior serious felony conviction. (3CT 591-
594.) A notice of appeal was filed the same day. (3CT 595.)

On January 19, 2022, the Court of Appeal reversed the judgment because of insufficient evidence appellant suffered a prior strike conviction and a prior serious felony conviction. The Court of Appeal otherwise rejected appellant's arguments. (Opn. at pp. 17-19.) No petition for rehearing was filed.

Statement of Facts
For purposes of this petition, appellant relies on the Background information in the Court of Appeal opinion. (opn. at pp. 2-6.)

In a nutshell, appellant was convicted of murdering Ramon Juarez Garcia. Prosecution witnesses heard a commotion and saw events after the incident had started. They reported seeing appellant chase Garcia down a street while a crowd followed. Appellant obtained a gun from a person in a car and shot Garcia six times, and then appellant ran off.

Appellant testified that he was having a picnic at a park with his family and friends when Garcia came asking for drugs. (6RT 1505-1509.) Appellant made a comment that Garcia interpreted as an insult. (6RT 1510.) Garcia eventually left but returned with some friends, and one of them behaved as if he had a gun. (6RT 1511-1512.) Appellant was concerned about the safety of his baby son and agreed to a one-on-one fight away from the park. (6RT 1513.) The two and the group went toward a carport. After an exchange of a few blows, appellant conceded the fight, but Garcia wanted to continue to fight; at one point, Garcia cut appellant's lip with a sharp instrument. (6RT 1515-1519.) Appellant said he was scared, and one in the crowd appeared to be reaching for a gun. (6RT 1513, 1584.) Appellant tried to run away, but Garcia and the crowd followed. (6RT 1523-1524, 1549.) Appellant picked up an axe handle from the ground (6RT 1523-
1524, 1549) and hit Garcia, but he got back up. (6RT 1524-1525, 1550-1551.) Someone appellant knew, called Demo, drove to the scene and gave him a gun. (6RT 1527, 1555.) Garcia rode off on a bicycle, and appellant was afraid Garcia was about to retrieve another weapon. (6RT 1553, 1560.) Appellant followed Garcia and shot him when he was crouching between two cars. (6RT 1529.) It appeared Garcia had an ice pick in his hand. (6RT 1529.)

Reason to Grant Review
I.	Counsel Was Ineffective for Failing to Exclude Evidence Appellant Was Prohibited from Possessing a Firearm.

In cross-examining appellant, the prosecution elicited that appellant was a convicted felon not allowed to possess a firearm and that he failed to follow a court order not to possess a firearm. (6RT 1558-1559, 1588.) Appellant received ineffective assistance of counsel for failing to object because the evidence was inadmissible. Appellant was not charged with illegal possession of a firearm. Although there was a firearms enhancement alleged, he admitted using the firearm to shoot Garcia (6RT 1529, 1561) and the event was video recorded (4RT 1004-1008, 5RT 1245). Whether appellant was not permitted by law or by a court order to possess a gun was irrelevant to the charges. It was irrelevant to whether he was credible or acting in self-defense. The inference that appellant might be less credible because he disobeyed the court for possessing the gun during the incident was improper because felons are permitted to possess a firearm temporarily for purposes of self-defense (King, supra, 22 Cal.3d at pp. 24-26), though this was never explained to the jury. The evidence also could have been excluded under Evidence Code section 352 because it permitted the jury to make an inference that was unreasonable as a matter of law

A.	Background.

The prosecution asked appellant without objection that because he was a convicted felon, he was not allowed to possess a gun:

Q. And when you received the gun, you knew that you had a conviction for dealing dope; right?

A. Yeah.

Q. You knew you were not supposed to handle a gun; right?

A. Yes.

Q. In fact, you had been convicted of being a felon in possession of a gun before, hadn't you?

A. Yes.

(6RT 1558-1559.)

Later, the prosecution ended its cross-examination by asking without objection if appellant knew he was "not supposed to be a felon in possession" of a firearm; he said he did know. (6RT 1588.) He was asked if he was ordered not to possess a gun, and he said that was true.1 (1588.) He was also asked if he disobeyed a court order by possessing the gun, and he said he did. (6RT 1588.)

The court instructed the jury that a witness's credibility can be judged on, among other things, whether "the witness [has] been convicted of a felony" and whether "the witness [has] engaged in other conduct that reflects on his or her believability[.]" (2CT 491, 9RT 2437, reciting CALCRIM No. 226.)

B.	Trial Counsel's Performance was Deficient for Failing to Object to Inadmissible Evidence.

The right to effective assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article I, section 15 of the California Constitution, entitling a defendant to "the reasonably competent assistance of an attorney acting as his [or her] diligent, conscientious advocate." (People v. Ledesma (1987) 43 Cal.3d 171, 215; Strickland v. Washington (1984) 466 U.S. 668, 684.) This is measured by objective standards of reasonableness under prevailing professional norms. (Strickland, at p. 688.)

In order to show ineffective assistance of counsel, it must be shown that (1) counsel's representation was deficient in that it fell short of prevailing professional standards of reasonableness; and (2) there was a reasonable probability that but for counsel's errors, the result of the case would have been different. (Strickland, supra, 466 U.S. at pp. 687, 694.) On appeal, it must also be shown that there was no reasonable explanation for trial counsel's conduct. (People v. Pope (1979) 23 Cal.3d 412, 426.)

Trial "counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest . . . the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." (Strickland, supra, 466 U.S. at p. 688.) "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." (Id., at p. 691.) Trial counsel has a duty to object to inadmissible and prejudicial evidence. (In re Jones (1996) 13 Cal.4th 552, 573-578; In re Wilson (1992) 3 Cal.4th 945, 955-956.) "A criminal defense attorney should be on guard against the improper impeachment of his or her own witnesses." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1524 [counsel ineffective for failing to object to inadmissible evidence elicited by the prosecution in cross-examination].)

Trial counsel should have objected, because the evidence was inadmissible, as it was not relevant or material to the allegations or to appellant's credibility.

"Relevance is a two-part inquiry. First, the fact sought to be proven must be 'of consequence to the determination of the action.' (Evid. Code, § 210.) Second, the proffered evidence must have some 'tendency in reason' to prove that fact. (Ibid.)" (People v. O'Shell (2009) 172 Cal.App.4th 1296, 1307.) The evidence was not relevant or material to show appellant personally used a firearm. He already admitted using a firearm to shoot Garcia. (6RT 1529, 1561.) And a surveillance video showed him shooting a gun at Garcia. (4RT 1004-1008, 5RT 1245.) Evidence that it was not lawful for him to possess a firearm did not make it any more likely he personally used a firearm. Conversely, when a defendant can lawfully possess a firearm generally, this would not be a defense to the enhancement.

The evidence was not relevant to whether appellant acted in self-defense. Whether he was generally allowed to possess a firearm did not make it less likely he reasonably or actually believed that the immediate use of force was necessary to defend against imminent danger or whether the force he used was reasonable.

Further, appellant's use of a firearm in self-defense was not unlawful if he was in imminent danger of harm and there were no reasonable alternatives. (King, supra, 22 Cal.3d at pp. 24-26.) In that case, a group of up to ten uninvited men crashed a party and began fighting with the invited guests. (Id. at p. 16.) The host announced the party was over, and most left. (Ibid.) However, the defendant, two other men including one who was confined to a wheelchair, and five women remained at the apartment complex. (Id. at p. 17.) Three or four of the women were hiding in an apartment as the crashers tried to break in. (Id. at p. 17.) A woman handed the defendant a gun, which he fired to scare off the intruders. (Id. at p. 18.) He was charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and being a felon in possession of a concealable firearm (former Pen. Code, § 12021). (Id. at p. 19.) Although the court instructed on self-defense for the assault charges, it refused to do so for the possession count. (Ibid.) He was found not guilty of assault but convicted of possession. (Ibid.)

This Court reversed. "Use of a concealable firearm in self-
defense is neither a crime nor an unlawful purpose. Section 12021 was not therefore enacted to prevent possession of these firearms during such use." (King, supra, 22 Cal.3d at p. 24.) "Thus, when a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continues, does not violate section 12021." (Ibid.)

The statute at the time banned felons from possessing concealable firearms, and it has been amended to ban possessing unconcealable firearms as well. (Stats. 1989, ch. 254, § 1.) While the Legislature sought to prohibit felons from generally possessing all types of firearms, it did not follow that it intended to prohibit them from properly using self-defense. Thus, appellant gaining possession in the middle of the incident of a firearm for the purposes of defending himself was not in itself illegal or a violation of the court's advisement that he was not permitted to possess a firearm.

The evidence was also not relevant to appellant's credibility. A defendant can be impeached by acts of moral turpitude. (People v. Wheeler (1992) 4 Cal.4th 284, 295.) But a felon may possess a firearm when necessary to defend himself. (King, supra, 22 Cal.3d at pp. 24-26.) Since it was not illegal for appellant to possess a firearm for self-defense, there was not a reasonable inference that his possession of a firearm made make his claim of self-defense any less credible. Because the evidence was admitted unchallenged, however, the jury was permitted to make this improper inference.

There could be no rational justification for trial counsel's failure to object. It is often said that the choice whether to object to evidence in inherently tactical, as trial counsel might find some usefulness from the evidence or not wish to draw attention to certain facts. (See People v. Bona (2017) 15 Cal.App.5th 511, 521.) But the evidence was not just an isolated statement in passing. The prosecution dwelled on it twice. (6RT 1558-1559, 1588.) It was the close of the cross-examination of appellant, earning it additional attention. (6RT 1588.)

Furthermore, there was a distinct danger the jury would draw the impermissible inference that appellant had a character or disposition to disobey court order's and the law and to be violent. The evidence thus should have been excluded under Evidence Code section 352, even if it had some probative value, because the "probative value [wa]s substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "[E]vidence is probative if it is material, relevant, and necessary. '[H]ow much "probative value" proffered evidence has depends upon the extent to which it tends to prove an issue by logic and reasonable inference (degree of relevancy), the importance of the issue to the case (degree of materiality), and the necessity of proving the issue by means of this particular piece of evidence (degree of necessity).' " (People v. Thompson (1980) 27 Cal.3d 303, 318, fn. 20.) In this context, prejudice is not synonymous with damaging. "Evidence is substantially more prejudicial than probative . . . if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (Waidla, supra, 22 Cal.4th at p. 724.) One is not permitted to infer the defendant has a character or disposition to commit certain crimes because of the prior convictions. (Evid. Code, § 1101, subd. (a); People v. Gurule (2002) 28 Cal.4th 557, 608 [prior murder and rape inadmissible in capital murder jury trial]; see also Old Chief v. United States (1997) 519 U.S. 172, 185 [when the court erroneously admits evidence of a prior conviction for a similar offense, the risk of prejudice is "especially obvious"].)

As explained above, the probative value of the evidence was minimal because the evidence did not lead to a reasonable inference appellant was not credible or that he was any more likely to be guilty of the allegations. But the evidence invited the jury to make the unreasonable inference appellant was more likely to be guilty because he had a character for violence, could not possess a firearm even in self-defense, and could not follow court orders to testify truthfully. In short, the evidence was harmful, not at all helpful, and the failure to object did not lessen the prejudicial impact of the evidence.

C.	Admission of the Evidence Deprived Appellant of a Fair Trial.

"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.)

The Court of Appeal decided there was no prejudice because appellant was impeached with other convictions. (Opn. at p. 8.) However, allegedly possessing a firearm illegally and against a court order showed not only did he suffered another felony convictions, but also "[h]e actually offered up that he has disregarded Court's orders before." (9RT 2470.) Thus, he "was ordered by the Court to say the truth, but he's disobeyed prior court orders." (9RT 2470.)

The prosecution's argument was reinforced by the court's instruction that a witness's credibility can be judged on whether "the witness [has] engaged in other conduct that reflects on his or her believability[.]" (2CT 491, (9RT 2437.)

The prosecution's argument, in combination with the court's instruction, permitted the jury to infer appellant was less likely to be credible because he illegally possessed a firearm in this case. As explained above, this was an unreasonable inference because him possessing a firearm to defend himself was not illegal. But the jury was not informed of this or the circumstances for determining when such possession would be lawful.

The Court of Appeal decided there was no prejudice because the case did not depend on appellant's credibility. Instead, there were several witnesses who say him kill Garcia. (Opn. at p. 9.) While several witnesses saw the end of the incident, however, no one saw how it began. In assessing a claim of self-defense, the danger need not be real, so long as a reasonable person would believe it to be real. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.) Thus, "a jury must consider what 'would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .' As we stated long ago, '. . . a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind . . . .' [Citation.]" (Ibid.) If the defendant's honest belief in self-defense is unreasonable, then his claim of imperfect self-defense renders him not guilty of murder but is guilty of voluntary manslaughter. (People v. Flannel (1979) 25 Cal.3d 668, 674, 679.)

Appellant explained how the incident started, how Garcia returned with friends and a weapon, and how at least one of his friends behaved as if he had a gun. (6RT 1511-1512, 1513, 1517-
1518, 1519, 1584.) Appellant explained how he was scared and just reacting to the situation (6RT 1589, 1590), however rashly. If believed, his testimony was sufficient to show perfect self-defense, or at least imperfect self-defense or provocation leading to voluntary manslaughter. Thus, the prosecution case did depend on discrediting appellant.

Appellant's fear of Garcia returning with a weapon was reinforced by him hitting Garcia with the axe handle only to find Garcia get back up. (6RT 1524-1525, 1527, 1550-1551.) This scared appellant because he thought he hit Garcia hard, and Garcia's apparent failure to feel as much pain as he should would indicate he was under the influence and prone to act more unpredictably and violently. (6RT 1525-1527.) Indeed, he had alcohol and methamphetamine in his blood, and the defense expert testified that such a person could act more violently. (7RT 1848-1849, 1866.)

While one witness said Garcia put his hands up as if to surrender (5RT 1241), appellant said Garcia turned toward him, possibly with an ice pick in his hand which prompted him to shoot. (6RT 1529.) Indeed, an ice pick was found in the area Garcia went to after he was shot. (5RT 1272-1273.) This was consistent with appellant's theory that Garcia discarded the weapon after being shot.

Even if the jury were not to believe appellant honestly acted in self-defense, it could infer he acted in the heat of passion. Willful, premeditated, and deliberate murder in the first degree usually exhibits evidence of planning, motive, and method, though they are not essential elements to the offense. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) On the other hand, a killing with malice aforethought but without premeditation or deliberation is murder in the second degree. (Pen. Code, § 188; People v. Rivera (2019) 7 Cal.5th 306, 328.) And an intentional killing which is done "upon sudden quarrel or heat of passion" is voluntary manslaughter. (Pen. Code, § 192, subd. (a); People v. Breverman (1998) 19 Cal.4th 142, 163-164.)

There was no evidence of planning or a motive. There was no evidence appellant knew Garcia. There was no reason to believe appellant had a pre-existing desire to harm Garcia. The prosecution case depended on appellant following Garcia with a gun, but no prosecution witness saw how the incident began. Appellant acting in the heat of moment after being provoked by Garcia was a more reasonable explanation than him simply deciding to kill Garcia for no apparent reason. The prosecution's case in securing a conviction for murder depended on not just discrediting appellant but burying his credibility. Evidence of him disobeying a court order was key to this project.

The record supports the conclusion that the jury found this to be a close case and wrestled with the questions of how the fight began, what reason would appellant have to attack Garcia. Among the jury's first set of questions was a request for readback of appellant's testimony. (3CT 529.)2 The Court of Appeal said this only showed the jury considered the case carefully. (Opn. at p. 9.) However, this showed that at least some of the jurors considered his testimony and his explanation of his fear and rash behavior but also the reasons for not believing him, including those improperly presented by the prosecution. The jury also asked in the second set of questions for the times of the 911 calls and a readback of one of the witnesses. (3CT 529.) This was significant because the witness and the 911 calls were the first accounts of the incident, aside from appellant's.

Jury question # 3 was for a readback of another witness's testimony. (3CT 533.) His testimony was significant because he was one of the few, other than appellant, who described what occurred after the shooting. (See 5RT 1215-1220.) This indicated the jury was considering how the incident started and tried to infer appellant's possible motives from his behavior after the shooting. Jury question # 4 was a set of questions concerning the definition of murder, specifically clarification of the term deliberation in CALCRIM No. 521 and the interplay of this instruction with CALCRIM No. 520, defining murder and malice. (3CT 532.) This indicates that at least some of the jurors, at least initially, had difficulty concluding beyond a reasonable doubt appellant acted with malice aforethought.

At least some of the jurors found it questionable that the prosecution proved beyond a reasonable doubt appellant was guilty of murder. But their doubt depended upon appellant's credibility. It was not enough for the jury not to believe some of what appellant said. The prosecution needed the jury to disregard everything he said, including how the incident started. This was why it was important for the prosecution to dwell as it did in discrediting appellant in every way possible. There was a "reasonable probability" that had trial counsel objected to exclude the evidence, appellant would not have been convicted of first degree murder. The judgment must be reversed.

II.	The Prosecution Committed Misconduct in Cross-
examining Appellant and in Misstating the Law Concerning Voluntary Manslaughter.

The prosecution committed misconduct by telling appellant in front of the jury his testimony did not make sense and asking appellant argumentative questions that called for him to speculate about information he had no personal information of. While most of the objections were sustained, the prosecution persisted in asking the same question repeatedly, conveying to the jury that it did not believe appellant's defense. It also misstated in argument the law concerning heat of passion for voluntary manslaughter by asserting the law requires a reasonable person to react in the same manner appellant did. This created an impossible standard for the defense to apply. While there was no objection to the argument or to the argumentative nature of some of the improper questions, appellant received ineffective assistance of counsel.

A.	Background.

Appellant described on direct examination a crowd following him and Garcia to a carport before any fighting occurred. (6RT 1515.) The prosecution asked him if it was just a coincidence they stopped following at that point. (6RT 1546.) The court overruled the defense objection that the question called for speculation. (6RT 1546.) Nonetheless, the prosecution rephrased the question without objection: "So this group of people that are following you, they stop for no particular reason and you go into this carport area and there is no else there?" (6RT 1546-1547.) Appellant confirmed there was no one else there, except Garcia. (6RT 1547.) The prosecution later asked about the axe handle appellant found to defend himself: "It's just on the ground on the sidewalk?" Appellant said it was. (6RT 1549.) "Just randomly when you needed it?" The court sustained the objection it was argumentative. (6RT 1549.)

Appellant described a short fist fight at the carport. (6RT 1546-1553.) He explained he then followed Garcia because he was afraid Garcia would be getting another weapon. (6RT 1553.) The prosecution replied without objection, "that doesn't make sense to me." (6RT 1553.) Later, appellant again explained he followed Garcia with a gun because he was afraid of what Garcia might do next. (6RT 1559-1560.) "You followed him with a gun?" the prosecution asked. (6RT 1560.) "Yes," appellant replied, " I did." (6RT 1560.) "How does that make sense?" the prosecution asked. (6RT 1560.) Appellant's objection that it was argumentative was sustained. (6RT 1560.)

The prosecution asked if one called Demo knew appellant needed a gun; the court sustained an objection that it called for speculation. (6RT 1554.) The prosecution asked again if Demo knew appellant needed a gun; the court sustained an objection that it called for speculation. (6RT 1556.) The prosecution then asked: "How would he know?" (6RT 1556.) Again, the court sustained an objection that it called for speculation. (6RT 1556.) After appellant explained he had not seen Demo earlier that day, the prosecution asked "[b]ut he was able to know that you were at 3rd and Julian right when you needed a gun he was there?" (6RT 1556.) The court sustained the objection that the question called for speculation and was argumentative. (6RT 1556-1557.) Appellant explained Demo was a passenger in the car (6RT 1527, 1557) and appellant did not know who the driver was. (6RT 1557). "Demo knew you were at 3rd and Julian," the prosecution asked again, "he was in the passenger seat, and he was able to hand you a gun?" (6RT 1557.) The court sustained the objection that the question called for speculation. (6RT 1557.)

Appellant explained he was reacting to the situation and not thinking. (6RT 1589, 1590.) The prosecution asked a series of questions whether he chose to do certain things during the incident. (6RT 1568, 1594-1595.) On recross-examination, the prosecution asked: "Are you saying right now, as you sit here, when you were talking to your lawyer, that you accidently shot Garcia?" Appellant objected, and the court directed the prosecution to rephrase the question, and so the question became whether Garcia was shot by accident. Appellant said it was not an accident. (6RT 1596.)

In closing argument, the prosecution argued, concerning heat of passion: "this is the standard. Would an average – would a reasonable person run after someone that had a screwdriver and shoot him down because they had an unreasonable fear of that person? No. There's nothing that shows heat of passion, nothing." (9RT 2508-2509.) It later said:

This isn't heat of passion. It can't just evoke the defendant's emotions. It has to be a person of average disposition. Would a normal person have acted the way Shaun Moore did? No. That's not how the average person – person of average disposition would have acted.

(9RT 2511.) There was no objection.

B.	The Prosecution Committed Misconduct in Cross-Examining Appellant with Questions that Were Argumentative and Called for Speculation.

The prosecution commits misconduct when it infringes on a defendant's constitutional rights. (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375; see, e.g., Brecht v. Abrahamson (1993) 507 U.S. 619, 63-633 [commenting on the defendant exercising the right to remain silent].) Misconduct also violates the Fourteenth Amendment to the United States Constitution when it "infects the trial with such unfairness as to make the conviction a denial of due process." (People v. Morales (2001) 25 Cal.4th 34, 44; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181.) Misconduct that does not violate the federal Constitution nevertheless violates California law if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Navarette (2003) 30 Cal.4th 458, 506, internal quotation marks omitted.)

It is misconduct for the prosecution to indicate it believes or disbelieves certain witnesses or in the defendant's guilt. (United States v. Young (1985) 470 U.S. 1, 18-19; People v. Bain (1971) 5 Cal.3d 839, 846.) It is misconduct because it suggests the prosecution has personal knowledge of the defendant's guilt from information not in evidence. (People v. Kirkes (1952) 39 Cal.2d 715, 723.) In People v. Hill (1998) 17 Cal.4th 800, it was misconduct when the prosecution audibly laughed at defendant's testimony to show disbelief. (Id. at p. 834; see also United States v. Rangel-
Guzman (9th Cir. 2014) 752 F.3d 1222, 1224-1225 [manner in which prosecutor referred to defendant's answers when she interrogated him amounted to vouching].)

The problem of implying the prosecution is in possession of facts not in evidence is that the prosecution arrogates for itself the position of an unsworn witness in violation of the defendant's constitutional right to confront and cross-examine witnesses against him. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; People v. Harris (1989) 47 Cal.3d 1047, 1083; People v. Bolton (1979) 23 Cal.3d 208, 213-214.) It also places the prestige of the district attorney's office in place of the facts that are in evidence. (See United States v. Hermanek (9th Cir. 2002) 289 F.3d 1076, 1098.) This violates due process by lessening the burden of proof (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15) by encouraging the jury to convict on the prestige of the prosecutor even when the evidence is not convincing beyond a reasonable doubt. (Rangel-Guzman, supra, 2014) 752 F.2d at p. 1225.)

It is also misconduct to elicit inadmissible evidence. (People v. Bonin (1988) 46 Cal.3d 659, 689.) A witness cannot testify about matters of which he has no personal knowledge. (People v. Anderson (2001) 25 Cal.4th 543, 574.) Most of the sustained objections concerned the prosecution asking appellant to provide information or to speculate about things of which he had no personal knowledge. Appellant lacked personal knowledge of what Demo knew when he offered appellant a gun (6RT 1554), for example, because there was not a rational inference that appellant could accurately perceive what Demo knew.

The Court of Appeal decided the prosecution did not imply it had superior knowledge. (Opn. at p. 13.) This was not a reasonable conclusion based on the record. The prosecution did not just accidentally stray by asking an isolated improper question. It asked the question five times, despite the court repeatedly sustaining appellant's objections. (6RT 1554-1557.) It was an argument conveyed to the jury through questions the prosecution knew would not and could not be answered. Thus, there was harm even though the court sustained the objections.

While it is presumed the jury would follow the court's instructions that the questions of the lawyers are not in themselves evidence (see People v. Lindberg (2008) 45 Cal.4th 1, 25-26; but see Bruton v. United States (1968) 391 U.S. 123, 135 ["there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored."]), the not so subtle message conveyed by the prosecution could not be missed: it believed appellant was not credible.

In other words, the prosecution's questions were argumentative. "An argumentative question is designed to engage a witness in argument rather than elicit facts within the witness's knowledge." (People v. Guerra (2006) 37 Cal.4th 1067, 1125.) It "is a speech to the jury masquerading as a question." (People v. Chatman (2006) 38 Cal.4th 344, 384.)

The prosecution's statement, "that doesn't make sent to me" (6RT 1553), was purely argumentative, as it was simply a statement of the prosecution's view of appellant's testimony.

The prosecution's question that the axe handle was on the ground "[j]ust randomly when you needed it?" was deemed argumentative by the court. (6RT 1549.) There was no way a witness could answer the question.

The prosecution's question near the close of its recross-
examination, "[a]re you saying right now, as you sit here, when you were talking to your lawyer, that you accidently shot Garcia?" (6RT 1596) was argumentative for two reasons. First, it improperly placed for the jury's consideration that appellant is providing his story for the first time at trial after counsel had been appointed. "With respect to postarrest silence, the court found that a variety of factors may cause the defendant to remain silent (e.g., intimidation by situation, fear, or unwillingness to incriminate another). In light of these factors, it would not have been 'natural' to offer an explanation. The court therefore concluded that postarrest silence lacked probative value. [Citation.]" (People v. Fondron (1984) 157 Cal.App.3d 390, 398-399, citing United States v. Hale (1975) 422 U.S. 171, 177, fn. omitted.)

Even if appellant had not been warned of his rights under Miranda v. Arizona (1966) 384 U.S. 436, it is improper to infer a defendant's refusal to disclose certain facts that are presented at trial shows consciousness of guilt or lack of credibility. "The Miranda warnings and an arrestee's right to remain silent have been widely publicized. In many cases, the silence of an unwarned arrestee will be based on his personal knowledge of his Miranda rights. Therefore, the 'implicit assurance' that his silence will not be used against him, which has been made known to the general public via the media and other methods of communication, is inherently present. The privilege against self-incrimination would indeed be 'reduced to a hollow mockery' if exercising it results in self-incrimination just as much as not exercising it." (Fondron, supra, 157 Cal.App.3d at p. 399.)

Second, the question was not aimed to clarify appellant's testimony or to bring forth facts. Appellant did say he was acting out of fear without an opportunity to think things through (6RT 1589, 1590), and the prosecution sought to challenge the assertion by asking if he made deliberate decisions to do certain things during the incident (6RT 1568, 1596). But appellant never contended Garcia was shot by accident. The question was a mischaracterization of appellant's testimony with the primary aim to suggest by innuendo the testimony was contrived after the appointment of counsel. This created the basis for the prosecution to argue to the jury that appellant saying he was afraid what was going to happen was insufficient because "[h]e didn't tailor his answers correctly." (9RT 2467.)

The cross-examination of appellant amounted to a violation of due process. (Darden, supra, 477 U.S. at p. 181.) The improper questions were not isolated. Instead, the prosecution repeatedly asked the same improper questions, even after objections were sustained. This reflected a pattern of misconduct designed to achieve an unfair advantage with argumentative questions and inaccurate descriptions of the law.

C.	The Prosecution Committed Misconduct in Misstating the Law Concerning Voluntary Manslaughter.

It is misconduct to misstate the law. (Hill, supra, 17 Cal.4th at pp. 830-831.) The effect is to lessen the prosecution's burden of proof in violation of the due process clause of the Fourteenth Amendment. (Taylor v. Kentucky (1978) 436 U.S. 478, 486-488.) "[T]he court and the prosecutor, as officers of the court, have a duty not to misstate the law, whether intentionally or not." (People v. Goodwillie (2007) 147 Cal.App.4th 695, 734-735.) The test is "whether there was a reasonable likelihood that the jury construed or applied any of the remarks in an objectionable fashion," or in a manner which reduced the prosecution's burden of proof. (People v. Booker (2011) 51 Cal.4th 141, 184-185; Victor v. Nebraska (1994) 511 U.S. 1, 6.)

The prosecution's comment that there was not heat of passion because a reasonable person would not react in the manner appellant did was a misstatement of law. The comment reduced its burden of proving appellant guilty of murder by creating a higher standard for the heat of passion defense than what exists under the law.

" 'An unlawful homicide is upon " 'a sudden quarrel or heat of passion' " if the killer's reason was obscured by a " 'provocation' " sufficient to cause an ordinary person of average disposition to act rashly and without deliberation.' (Breverman, supra, 19 Cal.4th at p. 163.) The focus is on the provocation – the surrounding circumstances – and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (People v. Najera (2006) 138 Cal.App.4th 212, 223.)

"The proper focus is placed on the defendant's state of mind, not on his particular act. To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection. . . . [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene. . . . [T]he question is whether the average person would react in a certain way: with his reason and judgment obscured." (People v. Beltran (2013) 56 Cal.4th 935, 949.)

Because provocation is judged by whether a reasonable person would act rashly, it is misconduct for the prosecution to argue voluntary manslaughter requires an average person to act the same way the defendant did. (People v. Forrest (2017) 7 Cal.App.5th 1074, 1085; Najera, supra, 138 Cal.App.4th at p. 223.)

The prosecution's argument that appellant had no claim of "heat of passion" unless "a normal person have acted the way Shaun Moore did" (9 RT 2511) misstated the law. Similarly, the statement, "[t]hat's not how the average person – person of average disposition would have acted" (9RT 2511) misstated the law. This is because "The prosecutor's remarks incorrectly informed the jury that provocation is sufficient to reduce a murder to manslaughter only if a reasonable person would have done what appellant did . . . [but] such remarks amount to a misstatement of the legal standard regarding provocation under Beltran, supra, 56 Cal.4th 935 . . . . (Forrest, supra, 7 Cal.App.5th at p. 1085, internal quotation marks omitted.)

The misconduct reduced the prosecution's burden of proof. Due process under the Fourteenth Amendment requires every element proven beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 364.) Comments that reduces the prosecution's burden of proof is misconduct. (Hill, supra, 17 Cal.4th at pp. 831-
832.) The prosecution's comment created an artificial barrier for appellant to overcome to prevail on his defense, one that was nearly unsurmountable. "[S]ociety expects the average person not to kill, even when provoked." (Beltran, supra, 56 Cal.4th at p. 954.) This is why provocation mitigates murder to manslaughter, but does not justify it. (Ibid.) Since no reasonable person would kill when provoked, the prosecution erected an unsurmountable barrier for appellant to overcome in violation of his right to due process under the Fourteenth Amendment.

D.	Trial Counsel was Ineffective for Failing to Properly Object to the Prosecution Misconduct.

As described above, trial counsel did not object to the prosecution misstating the law concerning heat of passion. When trial counsel did object to the prosecution's cross-examination, it was usually on the grounds the questions called for speculation, not that they were argumentative. Some of the questions were made without any objection.

To the extent trial counsel failed to properly object, appellant received ineffective assistance of counsel. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) Again, it must be shown that (1) counsel's representation was deficient in that it fell short of prevailing professional standards of reasonableness; and (2) there is a reasonable probability that but for counsel's errors, the result of the case would have been different. (Strickland, supra, 466 U.S. at pp. 687, 694.) On appeal, it must also be shown that there was no reasonable explanation for trial counsel's conduct. (Pope, supra, 23 Cal.3d at p. 426.)

"Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." (Strickland, supra, 466 U.S. at p. 688.) Trial counsel has a duty to object to inadmissible and prejudicial evidence. (Jones, supra, 13 Cal.4th at pp. 573-578; Wilson, supra, 3 Cal.4th at pp. 955-956.) Trial counsel has a duty to object to prosecutorial misconduct. (People v. Centeno (2014) 60 Cal.4th 659, 675-676; People v. Anzalone (2006) 141 Cal.App.4th 380, 395-396; Zapata v. Vasquez (9th Cir. 2015) 788 F.3d 1106, 1115-1116.)

There could be no tactical reason for failing to object. It is sometimes said that a decision whether to object is inherently tactical. But objecting to prosecution's questions without stating the proper grounds for excluding the evidence was not a tactical decision. (Jones, supra, 13 Cal.4th at pp. 571-573; People v. Asbury (1985) 173 Cal.App.3d 362, 365-366 ["The fact that counsel objected . . . at all, however, refutes any inference that he was pursuing some tactical advantage by withholding [the meritorious] argument."].) For the same reason, objecting to some questions but not other improper questions on the same topic could not have been tactical. Similarly, there could be no tactical reason for presenting a heat of passion of defense but failing to object to the prosecution explaining to the jury that the defense only applies if certain things are required that are not actually required by law.

E.	The Misconduct was Prejudicial.

Because the prosecution misconduct violated appellant's constitutional rights, reversal is required unless it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Ineffective assistance of counsel is prejudicial if it is "reasonable probability" a better outcome would have occurred without the error. (Strickland, supra, 466 U.S. at p. 694.) Even under the state standard, reversal is required if it is "reasonably probable" a better outcome would have occurred without the error. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) Reversal is required under any standard.

There was no evidence appellant had seen Garcia before. Something started the dispute. Actions by Garcia to make appellant fear for his safety would justify the use of self-defense, or at least create imperfect self-defense. Such provocation by Garcia would logically lead to a conviction of voluntary manslaughter. The prosecution case depended on thoroughly discrediting appellant. This was achieved by asking improper questions that amounted to the prosecution arguing in cross-examination that appellant's defense "doesn't make sense" (6RT 1553, 1650) and was not to be believed. But the reasons for not believing appellant were improper: because the prosecution did not think his story made sense, repeatedly suggested appellant was acting in concert with Demo, and discounted appellant's account as being created after he lawyered up.

The prosecution also required creating an unsurmountable barrier to finding appellant acted in the heat of passion. The focus on heat of passion is also on how the fight began. The focus "is on the provocation – the surrounding circumstances – and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion." (Najera, supra, 138 Cal.App.4th at p. 223.)

The jury often gives significant weight to the prosecution's summary of the law. (People v. Pitts (1990) 223 Cal.App.3d 606, 694 [because it comes from the official representative of the People, the prosecutor's closing argument carries significant weight with the jury].) After all, the prosecution is "entrusted with the enforcement of the law," and this creates inherent trust in its explanation of the law. (People v. Rodriguez (2018) 26 Cal.App.5th 890, 907.)

While one might assume the jury followed the court's instructions, not the contradictory statements of the prosecution, a court's instruction does not mitigate a misstatement of the law if the prosecution's misstatement does not contradict the instruction but instead appears to a layperson as a reasonable explanation of the instruction. (See Deck v. Jenkins (9th Cir. 2014) 814 F.3d 954, 982.) This is what occurred here. The instruction on heat of passion stated that the provocation must have been significant enough to cause "a person of average disposition to act rashly and without due deliberation . . . ." (2CRT 512; 9RT 2447, reciting CALCRIM No. 570.) The prosecution's argument elaborated on this language but did not contradict it. The prosecution told the jury that, in determining if the provocation was sufficient, it should consider whether the provocation would cause the average person to act rashly in the same way as appellant. Nothing in CALCRIM No. 570 contradicted the misstatement. The effect of the prosecution's argument on provocation was to make it impossible for appellant to fulfill the artificial test that was created, even though there was substantial evidence for the jury to find the defense applied.

The Court of Appeal decided there was no prejudice because the evidence was overwhelming. (Opn. at p. 16.) But this ignores that there was no information about how the incident started, other than appellant's testimony. If believed, a rational jury could have concluded he acted in the heat of passion, even if it fully credited the prosecution witnesses. Accordingly, reversal of the judgment is required.

III.	Cumulative Prejudice Requires Reversal.

When the combined effect of individual errors "denied [the defendant] a trial in accord with traditional and fundamental standards of due process," relief is compelled. (Chambers v. Mississippi (1973) 410 U.S. 284, 298.) Thus, Chambers held that "erroneous evidentiary rulings can, in combination, rise to the level of a due process violation" under the Fourteenth Amendment to the United States Constitution. (Montana v. Egelhoff (1996) 518 U.S. 37, 53; see also Taylor v. Kentucky (1978) 436 U.S. 478, 487 & fn. 15 ["the cumulative effect of the potentially damaging circumstances of this case violated the due process guarantee of fundamental fairness"].)

"[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (Hill, supra, 17 Cal.4th p. 844.) When some errors violated the federal constitution, reversal is required if, with the cumulative effect of all errors, it cannot be shown beyond a reasonable doubt the errors did not influence the outcome. (Id. at pp. 844-845; see United States v. Rivera (10th Cir. 1990) 900 F.2d 1462, 1470, fn. 6 (en banc) ["If any of the errors being aggregated are constitutional in nature, . . . Chapman should be used. . . . "].)

When trial counsel acts deficiently in multiple instances, the prejudice from counsel's actions is judged from the cumulative their effect. (Jones, supra, 13 Cal.4th at pp. 583-584; Cooper v. Fitzharris (9th Cir. 1978) 586 F.2d 1325, 1333 (en banc); Mak v. Blodgett (9th Cir. 1992) 970 F.2d 614, 622.)

Reversal is required under any standard. The erroneously admitted evidence and the prosecutorial misconduct worked in tandem to diminish the prosecution's burden of proof and to permit the jury to completely disregard appellant's testimony and arrive at a guilty verdict by using improper logic, unreasonable inferences, and an incorrect description of the law.

Conclusion

For the foregoing reasons, appellant respectfully requests this Court to grant review.

DATED: February 18, 2022

Respectfully submitted,

SIXTH DISTRICT APPELLATE PROGRAM

By:	/s/ Jonathan Grossman

Jonathan Grossman

Attorney for Appellant

Shaun Alexander Moore

CERTIFICATION OF WORD COUNT

I, Jonathan Grossman, certify that the attached Petition for Review contains 8230 words.

/s/ Jonathan Grossman

Jonathan Grossman

EXHIBIT A

[add opinion and proof of service]