People v. Soltero CA2/1 ( 2021 )

Filed 3/19/21 P. v. Soltero CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B302522
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA086162)
v.
ABRAHAM SOLTERO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and David F. Glassman,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________________
Abraham Soltero appeals from a judgment entered after he
pleaded no contest to possession of a firearm by a felon with a
gang enhancement allegation, and a jury found him guilty of first
degree murder and found firearm and gang enhancement
allegations to be true as to the murder. The trial court sentenced
him to 50 years to life in prison. He contends the trial court
erred in excluding evidence of the victim’s 20-year-old
misdemeanor conviction for sexual battery, which he sought to
introduce at trial to show the victim’s character for violence. He
also contends the prosecutor committed prejudicial misconduct
during closing argument by misstating the law regarding
premeditation and deliberation, and his trial counsel rendered
ineffective assistance in not objecting to the argument. Rejecting
Soltero’s contentions, we affirm the judgment.
BACKGROUND
I. Prosecution Case
On June 2, 2017, the date of the shooting, Richard
Aukschun, the victim, was working at an automobile repair shop.
He had been released from jail recently, and the owner of the
shop wanted to help him by hiring him for miscellaneous jobs so
he could earn money to buy food.
Artur Gukasyan, a witness who testified at trial, also
worked at the automobile repair shop. While test-driving a
customer’s car between 2:00 and 2:30 p.m. on June 2, 2017, he
observed defendant Soltero writing graffiti on the shop’s wall. As
Gukasyan sat inside the car at a red light, he called out to
Soltero, “ ‘Are you having fun?’ ” Soltero responded by making a
hand gesture, using both hands. Gukasyan was unfamiliar with
the gesture. When the light turned green, Gukasyan turned and
pulled the customer’s car into the shop. A video camera in
Gukasyan’s personal car, which was parked at the shop, recorded
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this encounter, and the prosecutor played the recording for the
jury.
Joseph Miconi, a witness who testified at trial, was also
working at the automobile repair shop on June 2, 2017. He
observed Aukschun outside the shop talking to a Latino man who
was holding two cans of spray paint. He heard Aukschun tell the
man, “ ‘You’re coming by my work and fucking up my job.’ ”
Then, Aukschun and the man began speaking in Spanish, and
Miconi could not understand what they were saying. Miconi told
Aukschun, “ ‘Let’s go. I need some help [in the shop].’ ” Miconi
saw Aukschun and the man shake hands, so Miconi believed
“everything [the argument between them] was done.” Miconi and
Aukschun walked back into the shop and returned to working on
a car.
At 2:44 p.m. on June 2, 2017, Hagop Fesstekjian, the
brother-in-law of the shop’s owner, received two phone calls from
Aukschun. Fesstekjian recorded the calls, as was his general
practice, and the prosecutor played the audio for the jury. During
the first call, Aukschun told Fesstekjian: “Edgar’s homeboy just
came through this fucken parking lot walking with a spray can
and spray painted the barrio all over the side of the fucken
building on the front street. And I got into his ass, homeboy.”
Fesstekjian testified that Edgar was the manager of a storage
business. Fesstekjian allowed Aukschun to sleep at the storage
shed he rented from that business.
The first call continued with Aukschun telling Fesstekjian:
“And he -- he said -- he still was trying to spray paint on the
fucken walls. He goes, you know who I am, you know who Edgar
is . . .? He brought a car here yesterday . . ., this, this, and that.
Causing all kinds of fucken drama, he’s drunk as fuck, all high
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and shit with a spray can spray painting all over the fucken side
of the building on the main street.” Aukschun suggested
Fesstekjian “call Edgar to deal with it.” Fesstekjian said he
would. The first call ended, and then Aukschun called back to
tell Fesstekjian the name of the person writing graffiti was
“Suspect.”
During his testimony, Fesstekjian described Aukschun as
follows: “He was a very hyper guy. If he talks, he talks fast, and,
if he walks, he walks fast. He talks with a lot of voice, not, like,
soft voice. So when somebody -- someone meets him, it’s [sic]
intimidated and excited.”
After Aukschun made the two phone calls, Miconi and the
shop owner saw Aukschun run into and through the shop.
According to the shop owner, Aukschun appeared to be “running
very scared.” Soltero, who was holding a gun, was chasing
Aukschun. Aukschun, who was unarmed, ran into a storage
room. The shop owner and Miconi saw Soltero stand at the door
to the storage room, point his gun at Aukschun, and fire, killing
Aukschun.1 Soltero then pointed his gun at the shop owner and
pulled the trigger. The gun jammed. As Soltero ran out of the
shop, Miconi kicked him from behind, but Soltero kept running.
The prosecutor played for the jury surveillance video taken
outside the shop. The video showed (1) the encounter between
Aukschun and Soltero outside the shop; (2) Soltero leaving the
area; (3) Soltero returning several minutes later; and (4) Soltero
running away from the shop.
1 When police officers inspected Aukschun’s body a few days
after the shooting, they found no scratches or defensive wounds
on him.
4
The prosecution also presented evidence demonstrating
Soltero was a member of the Logan Heights criminal street gang
with the moniker “Suspect,” and the automotive repair shop was
located in the gang’s territory. The prosecution’s gang expert
opined that a hypothetical shooting committed under the
circumstances present here would benefit the gang.
II. Defense Case
The parties stipulated that Aukschun had
methamphetamine in his system at the time of his death,
according to a toxicology report. A pharmacist, who testified at
trial, opined that based on the toxicology report, Aukschun had
used methamphetamine sometime in the day before the shooting,
and he would have been under the influence of
methamphetamine at the time of the incident. The pharmacist
also testified that methamphetamine could cause a person to act
unpredictably and violently.
III. Verdicts and Sentence
During trial, Soltero pleaded no contest to possession of a
firearm by a felon (Pen. Code, § 29800) with a gang enhancement
(Pen. Code, § 186.22, subd. (b)). The jury found him guilty of first
degree murder (Pen. Code, § 187, subd. (a)) and found firearm use
(Pen. Code, § 12022.53, subds. (b)-(d)) and gang enhancement
allegations to be true.
The trial court sentenced Soltero to 50 years to life in
prison: 25 years to life for murder plus 25 years to life for the
firearm enhancement. The trial court imposed and stayed the
sentence for possession of a firearm by a felon.
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DISCUSSION
I. Exclusion of Evidence of Victim’s 20-Year-Old
Misdemeanor Conviction for Sexual Battery
Soltero contends the trial court abused its discretion under
state law and violated his federal constitutional rights to due
process and to present a defense when it excluded evidence of the
victim’s 20-year-old misdemeanor conviction for sexual battery.
A. Proceedings below
At a pretrial hearing, the prosecution moved to exclude
evidence of the victim’s May 1996 misdemeanor conviction for
sexual battery. The prosecutor informed the trial court the
victim also had misdemeanor convictions in 2006 and 2015 for
failing to register as a sex offender. The prosecutor argued the
misdemeanor sexual battery conviction was not “relevant at all as
to any of the interactions between the defendant and the . . .
victim and would simply inflame the jury, if they knew that he
was a sex . . . offender.
The trial court inquired whether the defense sought to
introduce evidence of the 1996 sexual battery conviction. Defense
counsel responded: “Well, since we don’t know what the
interaction between them [Soltero and the victim] was, we don’t
know the nature of their -- what they were talking about, I do
think that it is potentially relevant. And it’s a sexual battery
conviction.” The prosecutor replied: “Even if there was some
type of interaction, I don’t understand how it would be at all
relevant, the fact that he was a sex offender or a -- or he had
committed sexual battery back in 1995 [sic], and I think that, in
order for that to somehow become relevant, there would have to
be evidence presented that this somehow -- that there was some
type of nexus between that; otherwise, it’s pure speculation.”
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Defense counsel stated: “I’ll just submit on the fact that I do
believe that [the victim] -- that his convictions and his status as a
sex offender are relevant to -- to the person that he was.”
Defense counsel added, “the court could give a limiting
instruction that -- and let the jury know what they can and
cannot use that for, the information for.”
The trial court granted the prosecution’s request to exclude
the evidence, explaining: “[H]is character evidence -- I just don’t
see that that’s character evidence that’s highly relevant. It
doesn’t really go to – well, I mean, sexual battery doesn’t go to the
violent nature of the alleged victim, but, more importantly, I
think it is remote. I think that failure-to-register convictions are
just not terribly relevant, other than in the remoteness analysis.
We’re talking over 20 years’ conviction [sic], occurring over 20
years ago, and it’s a misdemeanor, and given the nature of the
conviction, I just think that any possible probative value is, in my
view, at this point -- is highly outweighed by any potential undue
prejudice for the jury hearing that information. So I’m inclined
not to allow it. [¶] That’s without prejudice. As with every
ruling I make, if it comes up during the course of trial, if counsel
want to have the court reconsider something, just bring it to my
attention, outside the presence of the jurors. But I’m not inclined
to allow that at this point.” Defense counsel did not revisit the
issue.
Soltero’s theory of the case, as presented to the jury, was
that he was guilty of voluntary manslaughter, not first degree
murder, because he killed the victim as a result of sudden quarrel
or in the heat of passion after “verbal provocation” (the argument
outside the shop).
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B. Applicable law and analysis
Under Evidence Code section 1101, subdivision (a),2
“evidence of a person’s character or a trait of his or character . . .
is inadmissible when offered to prove his or her conduct on a
specified occasion.” There are exceptions to this general rule. As
pertinent here, section 1103, subdivision (a)(1) provides that in “a
criminal action, evidence of the character or a trait of character
(in the form of an opinion, evidence of reputation, or evidence of
specific instances of conduct) of the victim of the crime for which
the defendant is being prosecuted is not made inadmissible by
Section 1101 if the evidence” is “[o]ffered by the defendant to
prove conduct of the victim in conformity with the character or
trait of character.” Where the defendant’s theory of the case is
that the victim’s “violent character was circumstantial evidence
of how [the victim] acted at the scene,” the defendant need not
show he was aware of the victim’s prior violent conduct. (People
v. DelRio (2020) 54 Cal.App.5th 47, 55.)
The trial court may exclude evidence that is admissible
under section 1103 pursuant to “section 352 if admitting the
evidence would have confused the issues at trial, unduly
consumed time, or been more prejudicial than probative.[3]
[Citations.] The trial court must always perform its gate keeping
Further undesignated statutory references are to the
2
Evidence Code.
3Under section 352, “The court in its discretion may
exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of
misleading the jury.”
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function pursuant to [section] 350 to exclude evidence that is
irrelevant.” (People v. Gutierrez (2009) 45 Cal.4th 789, 827-828.)
We review the trial court’s exclusion of section 1103 character
evidence for abuse of discretion. (People v. DelRio, supra, 54
Cal.App.5th at p. 53.)
Soltero contends the trial court abused its discretion under
state law and violated his federal constitutional rights to due
process and to present a defense when it excluded evidence of the
victim’s 20-year-old misdemeanor conviction for sexual battery
because the evidence “would have supported the overall defense
theory that appellant was not guilty of the charged first degree
murder because he was acting in a heat of passion arising from
provocation by the decedent.” For the reasons explained below,
we disagree with Soltero’s contention of error.
Misdemeanor sexual battery involves a touching “against
the will of the person touched . . . for the purpose of sexual
arousal, sexual gratification, or sexual abuse.” (Pen. Code,
§ 243.4.) Soltero has not demonstrated the relevance of evidence
of the victim’s sexual battery conviction to the facts and
circumstances of this case. He has not explained how the victim’s
character as a misdemeanor sexual battery offender tends to
prove the victim provoked Soltero in this case. After the trial
court denied without prejudice Soltero’s request to introduce this
evidence to show “the person that he [the victim] was,” Soltero
never presented to the court any additional information
regarding the relation between the victim’s sexual battery
conviction and the victim’s conduct on the day of the murder.
Even assuming the evidence was relevant, the trial court
did not abuse its discretion in excluding it under a section 352
analysis. The conviction occurred 21 years before the shooting,
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diminishing its probative value as to whatever character trait
Soltero sought to introduce it to prove. There was a substantial
danger of confusing the issues or misleading the jury, in asking
the jury to relate this remote conviction to the victim’s conduct on
the date of the murder. Finally, there was a substantial danger
of inflaming the jury by labeling the victim as a “sex offender,”
when it was not clear his character as a sex offender was in any
way related to his conduct on the day of the murder. Given the
minimal probative value of this evidence, if any, the trial court
did not violate Soltero’s federal constitutional rights to due
process or to present a defense, and it is inconceivable Soltero
could have been prejudiced (under a state law or federal
constitutional standard) by the exclusion of this evidence.
II. Prosecutor’s Argument on Premeditation and
Deliberation
Soltero contends the prosecutor committed prejudicial
misconduct during closing argument by misstating the law
regarding premeditation and deliberation. “A defendant may not
complain on appeal of prosecutorial misconduct unless in a timely
fashion, and on the same ground, the defendant objected to the
action and also requested that the jury be admonished to
disregard the perceived impropriety.” (People v. Thornton (2007)
41 Cal.4th 391, 454.) Although defense counsel did not object to
the prosecutor’s argument to the jury regarding premeditation
and deliberation, we nonetheless review the merits of Soltero’s
claim of prosecutorial misconduct because Soltero argues his trial
counsel rendered ineffective assistance in not objecting to the
argument.
To establish ineffective assistance of counsel, a defendant
must demonstrate that his counsel’s performance fell below an
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objective standard of reasonableness under prevailing
professional norms and that he was prejudiced by the deficient
performance. (Strickland v. Washington (1984) 466 U.S. 668,
687-688, 691-692; People v. Williams (1997) 16 Cal.4th 153, 215.)
A. Proceedings below
Using CALCRIM No. 521, the trial court instructed the
jury:
“The defendant is guilty of first degree murder if the People
have proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended to
kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with
premeditation if he decided to kill before completing the act that
caused death.
“The length of time the person spends considering whether
to kill does not alone determine whether the killing is deliberate
and premeditated. The amount of time required for deliberation
and premeditation may vary from person to person and according
to the circumstances. A decision to kill made rashly, impulsively,
or without careful consideration is not deliberate and
premeditated. On the other hand, a cold, calculated decision to
kill can be reached quickly. The test is the extent of the
reflection, not the length of time.
“The People have the burden of proving beyond a
reasonable doubt that the killing was first degree murder rather
than a lesser crime. If the People have not met this burden, you
must find the defendant not guilty of first degree murder and the
murder is second degree murder.”
11
During the prosecutor’s initial argument to the jury, before
defense counsel gave her closing argument, the prosecutor stated:
“So, first degree murder is a killing with malice aforethought, but
it requires it to be willful, deliberate, and premeditated. It adds
those elements to it. That makes it a first degree murder. The
willful part is what we talked about in terms of express malice.
Remember I said you have to have express malice in order to
have first degree murder? That’s the willful part. The deliberate
part and the premeditated part is what was being thought of
before.
“And, now, generally, at this point, a lot of people start to
think, ‘Well, to have premeditation and deliberation, it requires
some type of, you know, like when you watch these mafia movies
and they’re in the basement and playing poker and smoking
cigars and, “We’re going to kill Little Johnny,” and then they plot
this whole thing, and then they go to some car, and they shoot
the guy in the back of the head, and then they’re, like, you know,
“Leave the gun. Take the cannolis,” ’ that type of thought process
that was required. That is truly first degree murder; right? But
that’s not what is required for first degree murder.
“We do these acts of deliberation and premeditation on a
daily basis, especially here in the City of Los Angeles. Think
about it: Every day, you are premeditating and deliberating. If
you’re driving down Van Nuys Boulevard, you’re thinking, ‘Oh,
my God, I’m late to court,’ but then you’re thinking, ‘Oh, I could
be late to work. But who cares? It’s not going to start for another
hour.’ So, at that point, you’re like, ‘I’m going to stop for the
yellow light. It’s not worth the risk.’ That’s a form of
premeditation and deliberation. Now you’re leaving court, and
you’re going down Van Nuys Boulevard, and you’re, like, ‘I need
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to get home because that was a long, tough day of waiting and
hearing lots of arguments.’ So you’re rushing home, and you see
that yellow light, and you really put the gas on because you want
to get home. That’s premeditation and deliberation. You’re
willing to risk. Sometimes, there’s a risk of taking a -- that
yellow light. Some other moron may be on the street and hit you
because they’re rushing another way. Every day, you see people
make mistakes, and, every day, you’re weighing the consequences
when you’re driving. We do this every day, and we do this
instantly. That’s premeditation and deliberation.” Defense
counsel did not object to the prosecutor’s use of the yellow light
scenario to demonstrate premeditation and deliberation, but on
appeal Soltero contends this portion of the argument constitutes
prosecutorial misconduct because it misstates the law regarding
premeditation and deliberation.
The prosecutor continued on in his initial argument to the
jury to describe the facts and circumstances demonstrating
premeditation and deliberation in this case (e.g., Soltero
returning to the victim’s place of work after walking away several
minutes before, and chasing the victim before shooting him).
B. Applicable law and analysis
“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.
Furthermore, and particularly pertinent here, when the claim
focuses upon comments made by the prosecutor before the jury,
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the question is whether there is a reasonable likelihood that the
jury construed or applied any of the complained-of remarks in an
objectionable fashion.” (People v. Morales (2001) 25 Cal.4th 34,
44; People v. Cash (2002) 28 Cal.4th 703, 733.) “ ‘Although
counsel have “broad discretion in discussing the legal and factual
merits of a case [citation], it is improper to misstate the law.” ’ ”
(People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266.)
Soltero’s trial counsel was not ineffective in declining to
object to the prosecutor’s argument because the prosecutor did
not misstate the law in using the yellow light scenario as an
example of premeditation and deliberation. Indeed, the
prosecutor’s use of the yellow light scenario as an example of
premeditation and deliberation is not novel. (See, e.g., People v.
Avila (2009) 46 Cal.4th 680, 715 [rejecting prosecutorial
misconduct claim based on prosecutor’s use of yellow light
analogy]; People v. Wang (2020) 46 Cal.App.5th 1055, 1086-1087
[same].) Consistent with the law on premeditation and
deliberation, the prosecutor here described “carefully weigh[ing]
the considerations for and against [the] choice and, knowing the
consequences, decid[ing]” to run the yellow light. (CALCRIM No.
521.) The prosecutor described a scenario where you see a yellow
light; you speed up because you are in a hurry to get home, and
you do not want to stop and wait at the light; you realize there is
a risk of accident, but you decide you are willing to accept the
risk because you want to get home. The prosecutor did not posit
a scenario where the driver proceeded rashly or impulsively
without evaluating the choice.
Soltero argues the prosecutor’s use of the word “instantly”
rendered his argument a misstatement of the law regarding
premeditation and deliberation. As set forth above, after
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describing the yellow light scenario, the prosecutor stated:
“Every day, you see people make mistakes, and, every day, you’re
weighing the consequences when you’re driving. We do this every
day, and we do this instantly. That’s premeditation and
deliberation.” (Italics added.) We have no reason to believe the
jury “construed or applied any of the complained-of remarks in an
objectionable fashion.” (People v. Morales, supra, 25 Cal.4th at p.
44.) What the prosecutor described is an instantaneous decision
to weigh the consequences of a choice. A choice that is made
rapidly, but after reflection and weighing of consequences, is a
premeditated and deliberate choice.
We disagree with Soltero’s assertion that the prosecutor
inappropriately “equated a decision to kill with decisions made
while driving in traffic.” As the Court of Appeal explained in
People v. Wang, supra, 46 Cal.App.5th 1055, “In the context of
the argument it is apparent that the prosecutor did not equate
the gravity of a decision to kill with a traffic decision, but used
the illustration to show that, like a decision to drive through a
yellow light, a premeditated and deliberate decision to kill could
be made very quickly. Indeed, after using the traffic light
analogy, the prosecutor reviewed the many conscious decisions
appellant had to make before the shootings occurred.” (Id. at p.
1086.)
Even if Soltero could establish his trial counsel’s deficient
performance in failing to object to the prosecutor’s argument, his
ineffective assistance of counsel claim would still fail because he
cannot establish prejudice—“a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland v. Washington, supra,
466 U.S. at p. 694.) “A reasonable probability is a probability
15
sufficient to undermine confidence in the outcome.” (Ibid.) We
reject Soltero’s assertion that in the absence of the prosecutor’s
use of the yellow light example, there is a reasonable probability
“that at least some jurors would have found that the murder
charge had not been proven beyond a reasonable doubt.” The
evidence of premeditation and deliberation in this case was
strong. Soltero walked away after the argument, came back
several minutes later, chased the unarmed victim, and shot and
killed him. If the prosecutor committed misconduct—which we
already concluded he did not—trial counsel’s decision not to
object was harmless.4
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
4We reject Soltero’s contention that cumulative error
requires reversal of his conviction. As explained above, there are
not multiple errors here to cumulate.
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