P. v. Venegas

Filed 9/28/17 P. v. Venegas CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE VENEGAS,
Defendant and Appellant.
B267921
(Los Angeles County
Super. Ct. No. BA425783)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Kennedy-Powell, Judge. Affirmed.
Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Victoria B. Wilson, Supervising
Deputy Attorney General, Viet H. Nguyen, Deputy Attorney
General, for Plaintiff and Respondent.

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During an audiotaped police interview, defendant and
appellant Jose Venegas (defendant) confessed to shooting 19-
year-old victim Kenneth Deras (Deras). Defendant, a member of
the Metro 13 criminal street gang, told the police he shot Deras, a
member of rival gang South Side Montebello, in self-defense. The
claim of self-defense was not the defense at trial, however;
instead, defendant argued he was not the shooter and falsely
confessed to the contrary only under pressure. The jury rejected
that defense and found defendant guilty of first degree murder.
In this appeal from his conviction, we consider defendant’s
challenge to the admission at trial of certain cell-phone-related
evidence, as well as defendant’s contentions that the prosecution
committed prejudicial Griffin1 error (i.e., commenting on
defendant’s decision not to testify) and improperly displayed a
slide not in evidence during closing argument.
I
A
The conduct that resulted in the murder charge was partly
captured by video surveillance cameras and partly seen by two
witnesses who were with victim Deras at the time of the shooting:
Alicia Hernandez (Hernandez) and her aunt Julie Torres
(Torres).
In the evening on August 18, 2012, Deras, Hernandez, and
Torres stopped at a 7-Eleven to get something (non-alcoholic) to
drink while on the way to Walmart. Hernandez and Torres had
both used methamphetamine that day. The 7-Eleven was within
1 Griffin v. California (1965) 380 U.S. 609 (Griffin).

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South Side Montebello gang territory, and Deras did not have a
weapon when he accompanied Hernandez and Torres.
When Deras and the two women arrived at the 7-Eleven,
Deras and Torres went inside the store to make a purchase while
Hernandez remained outside and smoked a cigarette. As Deras
and Torres entered the 7-Eleven, Hernandez noticed a young
Hispanic man near the store’s entrance who was wearing baggy
blue clothing and appeared to her to be a gang member
(defendant would later admit in his statement to the police that
he was the young man).2 The young man looked in Deras’s
direction, and Hernandez thought the man was “mad-dogging”
Deras. After Deras and Torres entered the store, the young man
got into the back seat of a black car in the 7-Eleven parking lot,
and the car drove off.
Within at most minutes, the young man who had left in the
black car came walking back to the 7-Eleven parking lot. The
man walked past the 7-Eleven’s entrance and stood waiting
outside while “look[ing] very fidgety” and “messing with his
pants.” Hernandez believed the young man might “hit up” Deras,
and she tried to get his attention inside the store, but Deras
never looked in her direction. When Deras and Torres paid for
their items and exited the store, the young man approached
Deras and aggressively asked him where he was from. Deras
replied he was “from” South Side Montebello. The young man
then reached for a “revolver-style” gun in his waistband, Deras
2 Torres similarly described the man who shot Deras as
wearing a blue shirt and blue jeans. However, when police
showed her the 7-Eleven surveillance video and asked if the man
depicted wearing blue clothes was the shooter, she said no.

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put his hands up in the air, the man pointed the gun at Deras,
and Hernandez turned away and ducked behind a car to seek
cover. Hernandez and Torres then heard multiple gunshots and
saw Deras stumble to the ground.
Hernandez crawled over to where Deras fell and realized he
had been shot because she saw “a bunch of blood just kind of
puddling up by his head” (a later autopsy revealed he had
sustained a fatal wound from a bullet that went through his left
arm and penetrated the left side of his chest). Paramedics and
police officers arrived on the scene shortly after Deras had been
shot. By then, the young man who shot Deras had fled the area
by running back to the same black car that had left the parking
lot earlier but was still nearby.
B
Police investigation at the scene of the shooting did not
turn up the gun used by the shooter. The police did recover two
bullet fragments at the scene, and the medical examiner who
performed an autopsy on Deras recovered another bullet from his
body. Forensic testing of one of the bullet fragments recovered
from the scene and the bullet recovered from Deras’s body
indicated both could have been fired from a .38 special caliber
firearm, a .38 Smith and Wesson caliber firearm, or a .357
magnum caliber firearm. The characteristics of the fired bullets
indicated it was possible they had been fired from an M206
Armscor .38 special caliber revolver, as well as several other
firearm models made by other manufacturers.
The investigation into Deras’s killing remained open for
roughly two years as investigators attempted to figure out the
name of the young man in blue seen on surveillance video footage

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they recovered from the 7-Eleven. Further investigative efforts
led detectives from the Los Angeles County Sheriff’s Department
to defendant (who was then in custody on another matter), and
the detectives interviewed him in June 2014. The interview was
audio-recorded.
After reading defendant his Miranda3 rights, the detectives
confronted defendant with the 7-Eleven surveillance video
footage. Defendant readily acknowledged he was depicted in the
video as the man wearing blue clothing, and he repeatedly
confirmed throughout the interview he was present at the 7-
Eleven at the time of the shooting—stating at one point, “I’m not
denying that I was . . . there, . . . that’s clearly me.” But
defendant initially maintained he “didn’t see nothing” and “didn’t
shoot nobody.” Employing what they would later refer to as
“ruses,” the detectives exaggerated the extent of the
incriminating evidence they had uncovered (telling defendant, for
instance, there was additional video footage that showed him
shooting Deras when there was not) and asked defendant
whether he shot Deras in self defense. Defendant eventually
confessed he shot Deras with a .38 caliber revolver that he later
threw away. Picking up on the detectives’ earlier suggestion,
however, defendant claimed the shooting was in self-defense: as
defendant told it, Deras originally had the gun, defendant
wrestled the gun away from Deras, and defendant then fired at
Deras (“[t]wice, I think”) because “[i]t was either me or him.”
The Los Angeles County District Attorney charged
defendant with murder in a single-count information. The
information further alleged the murder was committed for the
3 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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benefit of, at the direction of, and in association with a criminal
street gang (Pen. Code, § 186.22, subd. (b)(1)(C)), and that
defendant personally discharged a firearm causing Deras’s death
(Pen. Code, § 12022.53, subd. (d), (e)(1)).
The murder case against defendant proceeded to trial.
Hernandez and Torres testified, and the prosecution also
introduced in evidence the 7-Eleven video surveillance footage
and defendant’s recorded interview in which he admitted
shooting Deras. Significantly for purposes of this appeal, the
prosecution also sought to introduce (1) evidence regarding the
location of defendant’s cell phone on the night of the shooting,
determined by using historical cellular tower data (hereinafter,
cell site evidence); and (2) evidence of certain text messages and
photos found on defendant’s phone that depicted or referred to
firearms. At defendant’s request, the trial court held a hearing
outside the presence of the jury to consider the admissibility of
both categories of evidence.
1
Los Angeles County Sheriff’s Department Crime Analyst
Romy Haas (Haas) testified with respect to the cell site evidence
the prosecution intended to offer. Haas explained she had been a
crime analyst for nearly seven years and received approximately
30 to 40 hours of specific training on “cell phone toll analysis and
mapping,” with at least 100 hours of practical application “doing
it every single day on hundreds of cases.” She explained that a
cell phone will send a radio signal to physical cell towers when
placing calls and sending messages, and that a cell phone will
communicate with the tower that has the strongest, most direct
signal, which is usually the closest tower to the phone unless

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there are geographic features that block communication or the
closest cell tower is overloaded with traffic. For this case,
investigators provided Haas with AT&T cell phone records,
obtained via a search warrant for defendant’s cell phone number,
to analyze for location information.
Using the AT&T records and an FBI database that
documents the geographical location of cell towers in past years
(Deras’s murder took place in 2012), Haas plotted the location of
the cell towers used by defendant’s cell phone on the night of
Deras’s shooting, including a cell tower in the area of the 7-
Eleven where Deras was shot. The AT&T records also included
detail (known by the technical term “azimuth”) about the
particular “sector” of the cell phone towers used by defendant’s
cell phone (AT&T cell towers have three sides arranged in a
triangular shape, with one or more sectors on each side). Haas
used the sector information to narrow somewhat the location of
defendant’s phone in relation to the location of the cell towers
used. Haas cautioned, however, that she could not pinpoint the
range of a cell tower’s coverage, and that the diagrams she
prepared concerning the coverage of the cell towers were just for
“illustrative” purposes. In addition to preparing diagrams
depicting cell tower usage by defendant’s phone on the night in
question, Haas also used a computer software program to prepare
a video that showed, on a map of the relevant geographic areas, a
time-elapsed progression of cell towers used by defendant’s phone
throughout that night.
At the conclusion of Haas’s hearing testimony, the defense
objected to admission of the cell site evidence. Defense counsel
contended the cell site evidence was “irrelevant and more
prejudicial than probative” because there was “no indicia of

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reliability that depicts the frequency, the range or any type of
reliable information other than an illustrative purpose . . . to
cover the area of [the 7-Eleven].”
The trial court rejected this argument and ruled the cell
site evidence would be admitted. The court found the evidence
was probative, not prejudicial, and supported by sufficient
foundation; the court further found the defense’s objections to the
illustrative nature of the location diagrams prepared by Haas
went solely “to weight rather than admissibility.” Defense
counsel protested and asked the court if it would consider any
briefing the defense could provide regarding the sufficiency of
Haas’s testimony and “case law regarding the limitations or what
is permissible for law-enforcement to testify regarding historical
data.” The trial court agreed it would review any case law the
defense might submit regarding “cell phone charting and
mapping and so forth,” but so far as the appellate record reveals,
the defense submitted no additional briefing.
Testifying later in the presence of the jury, Haas described
her qualifications and experience pertaining to cell site evidence.
Haas also explained how cell phones communicate via radio
frequencies with AT&T cell towers, and how the location of the
cell towers, combined with historical records of when a given cell
phone was communicating with a given cell tower, can provide
information as to whether the phone was “in the area covered by
that tower.” Haas conceded the cell site data she analyzed could
not reveal “exactly where or [on] what street the [phone] handset
was” and that aspects of the map diagrams she prepared were for
“illustrative purposes only.” But based on her phone records and
cell tower analysis, Haas determined defendant’s cell phone was
“within the area of Montebello” and communicated with the

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AT&T cell tower that was closest to the 7-Eleven in question on
the day of Deras’s killing and at the approximate time of the
shooting.4
2
Los Angeles County Sheriff’s Department Detective Gerald
Groenow testified outside the presence of the jury in connection
with the prosecution’s request to introduce text messages and
photos from defendant’s cell phone that depicted or referenced
certain firearms. Detective Groenow was assigned to the
Southern California High Tech Task Force, and he extracted
information, including photos and text messages, from
defendant’s cell phone using software that downloaded the
information into “extraction reports.”
Detective Groenow testified about four text message
conversations found on defendant’s phone, with accompanying
photos. All of the text conversations occurred after Deras’s
shooting (i.e., on August 27 and 28, 2012). In one of the text
conversations, defendant and a contact designated in his phone
with the name “El Primo” corresponded regarding a photo of an
Armscor 206 six-shot revolver via messages stating: “I like my
revolver primo. [¶] Me 2 primo. [¶] Nice I like that one if u ever
want get it ghost let me get it. ??? [¶] It’s a sexy bitch huh
4 Haas also testified concerning the cell towers used by
defendant’s phone after the time of the shooting. According to
the phone records and her analysis, defendant’s cell phone moved
in a northerly direction, ultimately communicating with a cell
tower in the area of the 210 Freeway between Altadena and La
Cañada.

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forsure.” Another text conversation between defendant and “Li’l
Rob” involved a picture of a firearm and an exchange of messages
stating, among other things, “Na homie it’s a 380 loko. [¶] . . . [¶]
U dumping it? [¶] . . . [¶] Not right now u need one I change it 2
one of the homies I had a 38special 5shots.” In yet another text
conversation, defendant and “Gallo” exchanged a photo of a
firearm and associated messages stating: “Like my new toy
homie it’s a 380 one extended clipp 13 shots all together Firme
no. [¶] Its firme homie. I got rid of my 9 for 150. [¶] Esta la
cambie [this I exchanged] 4 a 38 I had.” And in a fourth text
conversation, messages between defendant and “Water” included
a photo of a firearm and texts stating: “U like my new toy??? [¶]
Hahaha what kind? [¶] It’s a thunder 380. Nice ha I’ll be over
maybe on fri.”5
The prosecution argued the texts and photos extracted from
defendant’s phone indicated “defendant had exchanged a
revolver, a six-shot or a five-shot as he described it, and instead
got a new toy, a .380 caliber firearm.” Because the evidence at
trial established Deras was killed with a revolver, and possibly a
.38 or .38 special caliber revolver, the prosecution believed the
text message conversations were probative of defendant’s
possession of a firearm that could have been the weapon used to
kill Deras. Defendant, on the other hand, argued the text
conversations “between two people whose identity is unknown is
5 The prosecution also identified certain other text message
conversations included in the phone extraction report that it
would seek to admit at trial to establish, among other things, the
cell phone belonged to defendant and defendant was interested in
acquiring a .357 caliber gun.

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not relevant to whether or not there was a shooting that occurred
on the 18th of August and whether or not [defendant] was the
one who did it.” Defendant also contended the discussion and
photos of a .380 semi-automatic firearm were irrelevant because
there was no evidence such a firearm was used in Deras’s killing
and the photos were more prejudicial than probative.
The trial court ruled the text message conversations (and
associated firearm photos) would be admitted in evidence. The
court explained its reasoning on the record: “[T]here is the
potential for prejudice, but it also is extremely probative because
the type of weapon that was used in this case, according to the
evidence that we’ve heard, is that it was a revolver. And a few
days later, here are messages from [defendant] about exchanging
or selling a revolver of a similar type to the type that was
included in those type of weapons that . . . were utilized in this
particular offense, based upon the ballistics evidence. [¶] So I
mean, I do think it is probative, but I also understand the
prejudice. And so what I’m suggesting is that a limiting
instruction may be something that is appropriate in terms of
perhaps mitigating the possibility of the jury jumping to
conclusions [with regard to defendant’s possession of firearms
generally]. [¶] You may decide that you don’t want that because
that just brings more attention to it in the first place. . . . But I do
think that it’s extremely probative, despite the prejudice.”
When Detective Groenow later testified in the presence of
the jury, he explained the process he undertook to extract
information from defendant’s cell phone. He then described the
aforementioned four text conversations (and others) for the jury,
explaining whether defendant’s phone or the phone user on the

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other end of the conversation sent particular lines of text or the
firearm photographs in question.6
C
The defense at trial was mistaken identity. During the
defense case, defendant called a University of San Francisco law
and psychology professor as an expert witness in police
interrogation techniques. He testified about certain techniques
interrogators use that increase the risk of a false confession
(including exaggerating the amount of incriminating evidence),
but he agreed false confessions by suspects were “not the norm.”
Defendant also called a forensic identification specialist employed
by the Los Angeles County Sheriff’s Department as a witness,
and she testified defendant’s fingerprints did not match
fingerprints lifted from glass surfaces at the 7-Eleven on the
night Deras was shot.
During closing argument, the defense conceded “something
did happen” at the 7-Eleven but argued “[defendant] is not the
shooter” because “it wasn’t him at the location.” The defense
emphasized neither Hernandez nor Torres identified defendant
as the shooter. The defense argued the jury should disregard the
cell site evidence because Haas conceded “[s]he does not know
exactly where the handset could be” and the cell site diagrams
she prepared were “only illustrative.” The defense asserted the
text message conversations concerning firearms were not
6 Defendant sent the texts (or so the jury could reasonably
infer) stating he “had a 38special 5shots” and asking whether
“Gallo” liked his “new toy,” a .380 caliber gun, that he exchanged
or traded “4 a 38 [he] had.”

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probative of guilt because there was no evidence the firearms
were ever recovered by the police and the conversations took
place after Deras’s shooting. The defense acknowledged there
was video surveillance evidence at the 7-Eleven, but argued the
jury could watch the video and determine for itself whether the
man shown in blue clothing had tattoos where defendant had
tattoos (or whether, instead, what could be seen in the video were
merely shadows, not tattoos). And the defense argued the jury
should give no weight to defendant’s admission to shooting Deras
because it was a “false confession by the wrong person.”
In rebuttal, the prosecution addressed, among other points,
defendant’s argument that the jury should determine for itself
whether the young man wearing blue clothing in the 7-Eleven
surveillance video was defendant. The prosecution argued: “[The
d]efense goes on about the defendant’s horn tattoos [on his
forehead]. Well let’s just clarify that. We don’t even know when
he—his tattoos were a progression. He has been adding tattoos
progressively over time since the time of the murder. [¶] And so
the sequence and the dates on which he added these tattoos, he
could probably explain that for us—” At that point, defense
counsel interposed an objection and the trial court sustained it.
Defense counsel did not, however, ask the trial court to admonish
the jury in response to the objected-to statement.
When closing arguments were complete, the jury retired to
deliberate and found defendant guilty of first degree murder,
with true findings on the associated gun and gang enhancements.
The trial court sentenced defendant to 50 years to life in prison.

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II
Defendant’s appeal challenges the prosecution’s evidence
and argument. As to the prosecution’s evidence, defendant
argues the trial court abused its discretion in admitting the cell
site evidence and in permitting the prosecution to introduce
evidence of the text messages and photos involving guns found on
his phone, which he claims were unduly prejudicial.7 We reject
both evidentiary contentions. The cell site evidence was not a
“new scientific technique” that would have obligated the trial
court to make findings pursuant to the rule adopted in People v.
Kelly (1976) 17 Cal.3d 24 (Kelly),8 and we find no fault in the trial
court’s discretionary decision that the probative value of the texts
and photos—evidence that had some tendency to show defendant
possessed the murder weapon—was not substantially outweighed
by a danger of undue prejudice. As to the prosecution’s
7 Defendant’s opening brief included an additional argument:
that the cell site evidence should have been excluded because law
enforcement obtained the historical phone records from AT&T
without a search warrant. The Attorney General’s brief correctly
explains defendant is factually mistaken on this point—the
phone records were indeed obtained pursuant to a search
warrant. We accordingly do not discuss this contention further.
8 “Until 1993, this rule was generally known in this state as
the Kelly-Frye rule because [our Supreme Court] in Kelly had
relied on the reasoning of a federal appellate court decision, Frye
v. United States (D.C. Cir.1923) 293 Fed. 1013 (Frye). In 1993,
the United States Supreme Court held that the Federal Rules of
Evidence had superseded Frye (Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587[ ]), and our state
law rule is now referred to simply as the Kelly test or rule.”
(People v. Bolden (2002) 29 Cal.4th 515, 545 (Bolden).)

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argument, defendant forfeited his claim that the prosecution
committed Griffin error when stating defendant “could probably
explain” the progression in his tattoos, and in any event, the
isolated remark did not contribute to the verdict obtained.
Defendant also complains about a slide apparently used during
the prosecution’s closing argument, but the record is not clear on
what was actually displayed. Regardless, the argument is
forfeited for failure to raise an adequate objection.
A
“In [Kelly], [our Supreme Court] held that evidence
obtained through a new scientific technique may be admitted
only after its reliability has been established under a three-
pronged test. The first prong requires proof that the technique is
generally accepted as reliable in the relevant scientific
community. ([Kelly, supra, 17 Cal.3d] at p. 30.) The second
prong requires proof that the witness testifying about the
technique and its application is a properly qualified expert on the
subject. (Ibid.) The third prong requires proof that the person
performing the test in the particular case used correct scientific
procedures. (Ibid.) [The Supreme Court] further held that proof
of a technique’s general acceptance in the relevant scientific
community would no longer be necessary once a published
appellate decision had affirmed a trial court ruling admitting
evidence obtained by that scientific technique, ‘at least until new
evidence is presented reflecting a change in the attitude of the
scientific community.’ (Id. at p. 32.)” (Bolden, supra, 29 Cal.4th
at pp. 544-545; accord, People v. Cordova (2015) 62 Cal.4th 104,
127 (Cordova); People v. Leahy (1994) 8 Cal.4th 587, 605 [Kelly
rule applies only to new scientific techniques, in other words,

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“‘that limited class of expert testimony which is based, in whole
or part, on a technique, process, or theory which is new to science
and, even more so, the law’”].)
We have parsed the record, and the objections to the cell
site evidence raised by the defense below did not preserve the
Kelly challenge that defendant now raises on appeal. (People v.
Ochoa (1998) 19 Cal.4th 353, 414 [failure to object to evidence on
Kelly grounds in the trial court means Kelly claim not preserved
for appeal] (Ochoa).) In the defense’s pretrial motion in limine
and during the Evidence Code section 402 hearing, the defense
made no objection that invoked the Kelly rule by name or in
substance—despite defense counsel having expressly objected to
other, unrelated evidence on “Kelly/Frye” grounds the very same
day the court held the Evidence Code section 402 hearing. There
was also no questioning of analyst Haas about the general
acceptance of her techniques in the scientific community—the
key issue for Kelly analysis—nor was there any mention of that
issue when counsel argued about the admissibility of the
evidence. Indeed, the closest defense counsel came to raising a
Kelly issue (which was not very close) was her objection “to the
foundation that was established” and her query as to whether the
trial court would reconsider its ruling if she were to “bring case
law regarding the limitations or what is permissible for law-
enforcement to testify regarding historical data . . . .” Although
the court stated it was willing to review any authority the
defense might submit despite having had prior cases where
similar cell site data had been admitted, defense counsel never
provided the court with the authority she said she would attempt
to find. The Kelly issue is therefore forfeited.

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Like the defendant in Ochoa, however, defendant asserts
that if we find his Kelly claim forfeited, his trial attorney’s failure
to object on Kelly grounds constituted ineffective assistance of
counsel. But defendant’s ineffective assistance claim necessarily
fails because a Kelly objection would have been meritless. (People
v. Garlinger (2016) 247 Cal.App.4th 1185, 1188 (Garlinger);
People v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise
a meritless objection is not ineffective assistance of counsel”].)
Defendant recognizes the Court of Appeal in Garlinger
rejected the Kelly argument he makes in this case. He is right, of
course: Garlinger holds “expert testimony explaining a cell phone
signal received by a certain side of a cell tower must have come
from that side of the tower and in the general vicinity of the
tower does not describe a new scientific technique subject to the
standard set forth by our Supreme Court in . . . Kelly . . . for
admitting the results of such techniques.” (Garlinger, supra, 247
Cal.App.4th at p. 1187.) Defendant urges us not to rely on
Garlinger because it is wrongly decided, but we find the decision
persuasive and reach the same conclusion in this case for
substantially the same reasons. In particular, we agree “the
transmission of radio signals from one place to another is a
technology that has been around for more than a century” and
“while cell phones are relatively new devices, the methodology is
not new. Cell phones operate like ‘sophisticated radios’ by
sending and receiving a radio signal to and from a cell tower and
base station in their general vicinity.” (Id. at pp. 1195-1196; In re
Application for Telephone Information Needed for a Criminal
Investigation (N.D. Cal. 2015) 119 F.Supp.3d 1011, 1013 [“Cell
phones operate through the use of radio waves”]; United States v.
Evans (N.D. Ill. 2012) 892 F.Supp.2d 949, 952 [summarizing

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testimony that cell phones determine which cell tower has the
strongest signal using radio frequency waves] (Evans); see also
Cordova, supra, 62 Cal.4th at p. 127 [more sophisticated method
of DNA testing “is merely another in a series of improved ways to
apply long-accepted science, not a new scientific technique in the
Kelly sense”].)
Defendant’s efforts to attack the Garlinger decision are
unpersuasive. He contends Garlinger relies on cases where
“there was no challenge whatsoever to the cell phone tracking
evidence,” but the Garlinger court cited those cases merely to
buttress the case’s core holding (cell site evidence does not
involve a new scientific technique)—not as a specific,
freestanding invocation of the exception that Kelly analysis is not
required for new scientific techniques once a published appellate
decision has sanctioned evidence obtained by use of that
technique. (Garlinger, supra, 247 Cal.App.4th at p. 1196 [citing
cases]; see also Cordova, supra, 62 Cal.4th at p. 127.) Defendant
also relies on Evans, a case that held an FBI Special Agent’s
testimony concerning “the location of a cell phone using the
theory of granulization” (Evans, supra, 892 F.Supp.2d at p. 952)
was insufficiently reliable to be admissible, but the Garlinger
decision distinguishes Evans for reasons that apply equally here.
(Garlinger, supra, at p. 1198 [“We need not determine whether
the district court in Evans . . . [was] right because our case does
not involve granulization theory. Unlike Special Agent Raschke,
Detective Bearor did not purport to have estimated the coverage
area of specific cell towers based on their proximity to other
towers. Nor did he claim to have determined the location of
defendant’s cell phone based on his ability to predict overlapping
coverage areas. Those were the salient aspects of granulization

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theory found to be lacking in reliability”].) In this case, analyst
Haas created diagrams and testified concerning the general
location of defendant’s phone at or near the time of Deras’s
killing and thereafter, and Haas disclaimed any ability to define
the precise limits of cell tower coverage or to determine exactly
where defendant’s phone was located. Thus, even if a Kelly
objection had been raised, the trial court’s ruling would stand:
the cell site evidence was admissible.
B
Section 352 of the Evidence Code gives a trial court
discretion to exclude relevant and otherwise admissible 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.” A
trial court has broad discretion when exercising its authority
under Evidence Code section 352, and we review the trial court’s
determination for abuse of discretion. (People v. Winbush (2017)
2 Cal.5th 402, 469 (Winbush); People v. Alexander (2010) 49
Cal.4th 846, 912-913 [reviewing court assesses whether trial
court’s Evidence Code section 352 determination was an abuse of
discretion by determining whether it “was outside the bounds of
reason”].) Defendant argues the trial court should have excluded
the text message conversations and associated firearm photos
pursuant to Evidence Code section 352 because they “served only
to depict [defendant] as a bad person who loved guns and, by
implication, liked to kill.” We hold there was no abuse of
discretion in admitting the evidence.

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The text message conversations in question permitted the
jury to draw an inference that defendant possessed a pistol that
may have served as the murder weapon (which was never found)
but got rid of that weapon by trading it for another gun.
Specifically, in text message conversations days after Deras’s
killing, defendant stated he previously had a “38 special, five
shots” that he exchanged or traded for a .380 caliber gun, and
ballistics evidence presented at trial established the murder
weapon was likely a .38 special revolver, a .38 Smith and Wesson
revolver, or a .357 magnum. In addition, defendant and “El
Primo” exchanged texts concerning an Armscor 206 revolver,
which an expert at trial stated was one of the firearm models that
would make the rifiling markings found on the bullet fragments
associated with Deras’s shooting. This was all highly relevant
evidence even though there was, of course, no guarantee
defendant and his texting partners were in fact referring to the
weapon used to kill Deras. (Evid. Code, § 210 [relevant evidence
is evidence “having any tendency in reason to prove or disprove
any disputed fact that is of consequence”]; People v. Carpenter
(1999) 21 Cal.4th 1016, 1052 [evidence that the defendant
possessed a gun that “might have been” the murder weapon but
was not “necessarily” the murder weapon was admissible as
relevant circumstantial evidence].)
As the trial court recognized, however, there was also some
concomitant potential for prejudice in admitting the evidence.
That was largely because the text conversations also made
reference to, or included photos of, firearms that could not have

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been the weapon used to kill Deras.9 But considering the other
gun references and photos as a whole, we cannot say the trial
court exceeded the bounds of reason in determining that any
danger of undue prejudice did not substantially outweigh the
probative value of the text conversations. Indeed, we find it
significant that the trial court offered to give a limiting
instruction that would mitigate the danger of collateral prejudice
but the defense did not submit a proposed instruction consistent
with the trial court’s offer. (See People v. Smith (2009) 179
Cal.App.4th 986, 1005-1006.) The trial court’s balancing was not
an abuse of its discretion.10
C
“‘The applicable federal and state standards regarding
prosecutorial misconduct are well established. “‘A
9 We note, however, that one of these firearms, the .380
caliber handgun depicted in several photos, did have its own
particular relevance. Defendant’s text messages indicated he
traded a .38 caliber gun he had (a gun model consistent with the
gun used to kill Deras) for a .380 caliber gun (a gun model
inconsistent with the gun used to kill Deras).
10 Because we conclude there was no abuse of discretion, we
find it unnecessary to discuss why the admission of the text
message conversations did not result in a miscarriage of justice.
But we do note there is no basis for defendant’s suggestion that
the trial court’s Evidence Code section 352 ruling constitutes
federal constitutional error. (People v. Marks (2003) 31 Cal.4th
197, 227 [“[A]pplication of ordinary rules of evidence like
Evidence Code section 352 does not implicate the federal
Constitution . . .”].)

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prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious
that it infects the trial with such unfairness as to make the
conviction a denial of due process.”’” [Citations.] 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 court or the jury.”’” [Citations.]’”
(People v. Hill (1998) 17 Cal.4th 800, 819.) Defendant presents
two arguments seeking reversal based on asserted prosecutorial
misconduct during closing argument; we reject both.
1
Defendant asserts the prosecutor committed Griffin error, a
species of misconduct, during rebuttal argument when she
remarked: “[T]he sequence and the dates on which he [i.e.,
defendant] added these tattoos, he could probably explain that for
us[.]”11 “Under the rule in Griffin, error is committed whenever
11 Defendant’s opening brief can also be read to contend the
prosecution committed Griffin error by arguing the defense failed
to call logical witnesses. The prosecution’s argument in this
respect was proper, and we do not discuss it further. (People v.
Castaneda (2011) 51 Cal.4th 1292, 1333 [“Although a prosecutor
is forbidden to comment either directly or indirectly, on the
defendant’s failure to testify in his defense, the prosecutor may
comment on the state of the evidence, or on the failure of the
defense to introduce material evidence or to call logical
witnesses”], internal quotation marks and citations omitted.)

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the prosecutor or the court comments, either directly or
indirectly, upon defendant’s failure to testify.” (People v. Morris
(1988) 46 Cal.3d 1, 35; accord, People v. Thompson (2016) 1
Cal.5th 1043, 1117-1118 (Thompson).)
The general rule is that “‘[i]n order to preserve a claim of
misconduct, a defendant must make a timely objection and
request an admonition.’” (People v. Williams (2013) 56 Cal.4th
630, 671; accord, People v. Forrest (2017) 7 Cal.App.5th 1074,
1081 [purpose of the requirement is to encourage defendants to
bring errors to the attention of the trial court so they may be
corrected].) Defendant objected to the challenged remark and the
trial court sustained the objection, but defendant did not ask the
trial court to admonish the jury to disregard the remark or to
explain its impropriety. In the absence of a request for an
admonition, and defendant having made no attempt to argue an
admonition would have been futile, Supreme Court authority
dictates we deem the issue forfeited. (Winbush, supra, 2 Cal.5th
at p. 482 [“Although defendant objected, and his objection was
sustained, he did not ask the court to admonish the jury to
disregard the prosecutor’s argument. Accordingly, he forfeited
this challenge on appeal”]; People v. Charles (2015) 61 Cal.4th
308, 328 [same].)
Even if the Griffin error claim had been preserved, the
Attorney General has persuasively demonstrated the asserted
error here was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18.) “‘“‘[I]ndirect, brief and mild
references to a defendant’s failure to testify, without any
suggestion that an inference of guilt be drawn therefrom, are
uniformly held to constitute harmless error.’”’ [Citations.]”
(Thompson, supra, 1 Cal.5th at p. 1118.) Moreover, the evidence

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of guilt on the sole contested issue at trial, the identity of the
shooter, was very strong if not overwhelming. Defendant is
correct that Hernandez and Torres did not identify him as
Deras’s shooter, but the prosecution had even better evidence: the
repeated, clear admissions by defendant himself during the
recorded interview with the detectives that he was the person
depicted in the 7-Eleven video surveillance footage.12 The jurors
also could watch the surveillance video themselves and compare
it to photos of defendant and their observation of him in court to
form their own conclusions as to the identity of the shooter.
Defendant also had a motive to kill Deras, a member of a rival
gang, and while all this is strong evidence of guilt in its own
right, the cell site and text conversation evidence provided
further confirmation that defendant was the culprit.
2
Defendant additionally argues the prosecution committed
misconduct during closing argument by displaying a PowerPoint
slide during summation. The slide in question is not included in
the record, so we can attempt to divine what occurred only by
looking to the relevant portion of the trial transcript. We quote
that portion below in full.
“[The Prosecutor]: But as they got closer, as [Torres] got to
her driver’s door, she’s opening the door, she hears ‘where you
from?’ So she looks up. And what does she see? This guy who
12 Trial counsel argued defendant falsely confessed, but
defendant admitted the young man in blue was him even while
he initially maintained he was not the man who shot Deras—
before later confessing that he was.

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she’s described in a royal blue shirt, short sleeve, blue jeans,
slightly darker blue jeans, a mustache, at the sidewalk saying to
the defendant [sic] ‘where you from?’ What else did she tell us?
The guy suddenly produces a gun. She’s not some firearms
expert. She’s not going to sit there and describe, well, it was a
semiautomatic with a 13-shot capability. Okay? She’s not going
to be able to say that. When asked by the detective—
[Defense Counsel]: Your Honor, I would object. This
slide—it’s nowhere in evidence. And it’s—
The Court: Well, you superimposed a figure.
[The Prosecutor]: Right.
The Court: But that’s not how it actually appeared.
[The Prosecutor]: Okay. But I’ll explain to the jury.
He had—it was the gentleman in royal blue with
dark blue jeans, short sleeve shirt produced—suddenly he’s
holding a gun. She described it to the detective when she was
asked, ‘Well, this style or like that style?’ ‘It was like that style,
the revolver style.’ Okay? That’s the shape and style of gun that
she saw.
And she explained that . . . [Deras] began to run
away. He actually fell on her. She’s explained that [Deras]
actually fell on her.
[Defense Counsel]: This image again here is superimposed.
The Court: I’m sorry?
[Defense Counsel]: The image was just there superimposed
the same photographs that—
The Court: Right. That’s clear.
[The Prosecutor]: Demonstrative, Your Honor.
Because defense counsel did not object in a manner that
clearly reveals the nature of the asserted problem with the

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presentation slide, defendant is left to argue it was misconduct to
use the slide because “the trial court acknowledged” the image on
the slide was not how “it” actually appeared. Similarly
handicapped by the absence of an objection that would preserve
the issue for appeal, the Attorney General theorizes “it appears
that the prosecutor used a slide of the murder scene with a
superimposed image of either a revolver or [defendant] from the
surveillance video footage.”
We seriously doubt use of the slide was misconduct at all.
(People v. Centeno (2014) 60 Cal.4th 659, 671 [“The use of charts,
diagrams, lists, and comparisons based on the evidence may be
effectively and fairly used in argument to help the jury analyze
the case”].) But what is abundantly clear is that defense counsel
neither made an objection on misconduct grounds in the trial
court nor made any request that the trial court admonish the jury
concerning the prosecution’s use of the slide in question. We
therefore deem the argument forfeited, and reject it on that basis.
(Winbush, supra, 2 Cal.5th at p. 482; People v. Covarrubias
(2016) 1 Cal.5th 838, 893-894 [holding claim forfeited because the
defendant “did not object on the specific ground of prosecutorial
misconduct that he now asserts on appeal”].)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
KRIEGLER, Acting P.J.
DUNNING, J.*
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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