# People v. Brown CA4/1

> California Court of Appeal · August 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11125365

## Case

- **Court:** California Court of Appeal
- **Decided:** August 22, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 8/22/25 P. v. Brown CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083030

Plaintiff and Respondent,

v. (Super. Ct. No. SCS322710)

THORNELL BROWN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Maryann D’Addezio, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Britton B. Lacy, Deputy Attorneys General, for
Plaintiff and Respondent.
I. INTRODUCTION
Thornell Brown appeals from his second degree murder conviction on
eight grounds. Brown contends the trial court: (1) erred in refusing to
instruct the jury on sudden quarrel or heat of passion voluntary
manslaughter (heat of passion); (2) improperly instructed the jury on malice;
(3) erred in responding to a question from the jury regarding the different
forms of homicide; (4) incorrectly instructed the jury on imperfect self-
defense; and (5) improperly excluded testimony from Brown’s prison expert.
Brown also argues (6) the prosecutors erred and violated the Racial Justice
Act (RJA) by using the word “hunt” to describe Brown’s actions; (7) his trial
counsel was ineffective for failing to raise some of the issues Brown now
raises on appeal; and (8) the cumulative effect of the claimed errors
prejudiced Brown. Finding no merit to these claims, we affirm the conviction.
II. BACKGROUND
During the middle of the day on June 4, 2022, Frank Gallegos was
walking across the street in National City. Brown parked his vehicle next to
Gallegos as Gallegos was approaching the curb. Brown exited his vehicle and
ran at Gallegos, causing Gallegos to retreat into the street. Brown pushed
Gallegos further into the street, where the two men ended up fighting
underneath the trailer of a semitruck. Brown came out from under the
trailer first, pushing a stumbling Gallegos to the ground near the curb. As
Gallegos lay on his side, Brown punched him numerous times.
Gallegos got on his hands and knees as Brown maneuvered behind him
and straddled the lower half of Gallegos’s body. Gallegos grabbed a small
black object from the ground. Meanwhile, Brown removed a knife from his
waistband, and after unsnagging it from his shirt and removing its sheath,
Brown plunged the knife into Gallegos’s back two times. Gallegos was
pushing himself to his feet and constrained by Brown’s legs while getting
stabbed. Brown walked back to his car and drove off, while Gallegos
staggered away.

2
Brown circled the block, while Gallegos walked to a nearby parking lot.
Brown drove into that parking lot, slowed to a stop, and then accelerated,
hitting Gallegos with the front of his car and driving over him with the front
right wheel. Brown reversed, again running over Gallegos with the car’s
front right wheel, and exited the parking lot.
Gallegos died at a hospital several hours later. An autopsy revealed
numerous injuries to Gallego’s head, arms, and legs, as well as two stab
wounds in his back. One of the stab wounds was three to four inches deep,
fatally penetrating Gallegos’s lung. An officer searched Gallegos, finding a
black and silver box cutter in his pants that had blood on its blade and
handle. Gallegos’s and Brown’s DNA were found on the handle of the box
cutter, but only Gallegos’s DNA was found on the blade.
Civilians at a nearby market and a local bank reported to the National
City Police Department Brown’s license plate number. They also provided to
responding officers cell phone video of the stabbing. Using this information a
police officer arrested Brown later that evening. Brown had with him in his
car the knife used in the killing, as well as a gun. Brown had two fresh cuts
on his head that were approximately 2 centimeters long and fresh scrapes on
his knees. Brown also had a healed wound on his neck and a scratch on his
chest.
On June 8, 2022, the San Diego District Attorney’s Office charged
Brown with murder (§ 187, subd. (a); count 1), alleging that he personally
used a knife and vehicle as deadly weapons in the commission of the offense
(§ 12022, subd. (b)(1)). Prosecutors also charged Brown with possession of a
firearm by a felon for the gun that was found in his vehicle when he was
arrested (§ 29800, subd. (a)(1); count 2).

3
At Brown’s 2023 trial, the jury saw footage of the killing. Surveillance
cameras and a witness’s cell phone captured the entire incident. The footage
shows the two men wrestling and punching under the semitruck, but it is
unclear if any weapons were used at that point. However, after emerging
from under the semitruck, the footage clearly depicts Brown stabbing
Gallegos in the back twice. Four witnesses also described their observations
of the incident, testifying that they did not observe any weapons until Brown
used his knife after the two men came out from under the semitruck.
Brown testified in his own defense, explaining his relationship with
Gallegos. The two men knew each other because Gallegos lived in the same
building as Brown’s sister. Brown stated he lent Gallegos $20 on two
separate occasions, which Gallegos refused to repay. On two other occasions,
Gallegos called Brown a “mayate,” which Brown, who is African-American,
understood to be the Spanish equivalent of the N-word. Brown had also
heard that Gallegos swindled Brown’s sister, but Brown was not sure if that
was true.
Brown also described his experience in prison for the jury, explaining
the importance of respect in that racially segregated environment. Brown
asserted that prisoners commonly resort to violence if a member of one race
says something derogatory to a member of another race, and theft between
the races could result in beatings or stabbings. According to Brown, an
inmate cannot show weakness, and failing to respond to disrespect shows
weakness. Brown testified that this prison mentality comprises part of his
moral code, but he has been trying to shed it since being released. Brown
knew Gallegos had been to prison, so it made Brown furious when Gallegos
called him a racial slur. Brown would have immediately assaulted Gallegos
if that happened in prison.

4
Regarding the murder, Brown testified that he was unloading his
belongings to bring to his sister’s residence when Gallegos intentionally
bumped into him and stole something. Brown told the jury, “it took me a
couple of minutes, and I was contemplating on am I gonna do something to
this dude?” After “digesting” the situation, Brown “came to the conclusion”
that he was going to “whoop [Gallegos’s] ass.” Even though he could have
immediately pursued Gallegos, Brown’s belongings were vulnerable, so
Brown decided to repack his car. This took about five minutes because
Brown had to pack his items in a manner that did not obstruct his view while
driving. Brown then drove off looking for Gallegos.
Brown admitted being the initial aggressor but claimed that Gallegos
sliced him with a blade when the two were under the semitruck. In response,
Brown testified, “I had fear for my life. . . . So I went into whatever you want
to call it to survive a situation. I don’t know how I got there, but I knew what
I had to do. And I knew how I feel. I felt I was gonna lose my life at that
moment. So I responded to the situation.” Brown testified that Gallegos
dropped his knife, but he was reaching for it and ultimately picked it up, so
Brown considered Gallegos a threat when Brown stabbed Gallegos.
Nonetheless, Brown acknowledged that he could have left prior to drawing
his knife, and when the knife got caught in his shirt, Brown had already
decided that he was going to stab Gallegos.
After he stabbed Gallegos twice, Brown “considered the threat
somewhat neutralized.” But after driving around the block and seeing
Gallegos “still walking strong,” Brown feared for his sister’s life because he
thought Gallegos would retaliate against her. So, believing his actions were
justified, Brown “ran [Gallegos] over to terminate him. To terminate his
threat.”

5
Brown characterized his actions as “self-defense” several times. Brown
also described himself as being in that “zone” or “place” while stabbing
Gallegos and running him over with his car. When asked to clarify, Brown
said “my life was threatened. . . . All I know I need to stop him and that’s
what I did. . . . I wanted to stop him.”
The trial court instructed the jury on first and second degree murder,
self-defense, and voluntary manslaughter based on imperfect self-defense or
defense of another. The trial court denied Brown’s request to instruct the
jury on manslaughter resulting from heat of passion.
The jury found Brown guilty of second degree murder, determining that
the personal deadly weapon allegations were true. The jury also found
Brown guilty of count 2. The trial court sentenced Brown to 42 years to life

in prison.1 Brown’s timely appeal followed.
III. DISCUSSION
A. The Trial Court Did Not Err in Refusing to Give the Heat of Passion
Instruction
Brown argues the trial court erred in refusing his request to instruct
the jury on heat of passion. Brown claims that based on his testimony, the
jury could have concluded that Gallegos’s long-term disrespectful conduct
provoked Brown to act in a heat of passion when he engaged in the fistfight
with Gallegos, and Brown became further enraged when Gallegos sliced
Brown with a weapon. We disagree.

1 Brown’s prison term consisted of 15 years to life for the murder,
doubled to 30 due to a prior strike conviction; one year for the personal use of
a knife; three years for the firearm possession, doubled to six due to a prior
strike conviction; and five years for a prior serious felony. The trial court
stayed Brown’s sentence for personal use of a vehicle as a deadly weapon.
6
“Murder is the unlawful killing of a human being with malice
aforethought.” (§ 187, subd. (a).) However, murder may be reduced to
voluntary manslaughter if the defendant acts “upon a sudden quarrel or heat
of passion.” (§ 192, subd. (a).) “Heat of passion has both objective and
subjective components. Objectively, the victim’s conduct must have been
sufficiently provocative to cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection. . . . [¶] Subjectively,
‘the accused must be shown to have killed while under “the actual influence
of a strong passion’ induced by such provocation.” (People v. Enraca (2012)
53 Cal.4th 735, 759, citation omitted.)
Heat of passion voluntary manslaughter is a lesser included offense of
murder. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) A trial court
must instruct on lesser included offenses “ ‘only where there is “substantial
evidence’ from which a rational jury could conclude that the defendant
committed the lesser offense, and that he is not guilty of the greater offense.’
[Citation.] ‘Substantial evidence,’ in this context, ‘is evidence sufficient to
“deserve consideration by the jury,” that is, evidence that a reasonable jury
could find persuasive.’ ” (People v. Williams (2015) 61 Cal.4th 1244, 1263.)
“ ‘We review de novo a trial court’s failure to instruct on a lesser
included offense [citation], and in doing so we view the evidence in the light
most favorable to the defendant[s].’ ” (People v. Dominguez (2021)
66 Cal.App.5th 163, 175.)
To support the heat of passion instruction, Brown relies on his own
testimony describing the circumstances that preceded his fatal encounter
with Gallegos. Brown cites Gallegos’s prior use of a racial slur on two
occasions, Gallegos’s refusal to repay Brown’s $40 loan, Gallegos’s alleged
swindling of Brown’s sister, and Gallegos’s theft from Brown shortly before

7
the fight. Brown also relies on his prison experiences as a factor relevant to
provocation.
However, Brown’s testimony negates the subjective component of heat
of passion. Brown explained that after Gallegos bumped into him and stole
something, “it took [him] a couple of minutes, and [he] was contemplating”
whether he was going to do something to Gallegos and “digesting” the
situation. Brown stated he “contemplated it for a minute and came to the
conclusion” that he was going to “whoop [Gallegos’s] ass.” Brown also
acknowledged that he could have immediately pursued Gallegos, but his
belongings were vulnerable. Brown therefore decided to repack his car,
which took about five minutes because he had to ensure he had a clear view
while driving. Based on this testimony, Brown contemplated the situation
before deciding to fight, and he had the wherewithal to protect his property
and pack it safely in his car. Accordingly, by his own description, Brown did
not act rashly or without deliberation when he decided to pursue Gallegos
and attack him.
Brown also points to his testimony that he was in that “zone” or “place”
during the attack, arguing this evidence shows that he acted in the heat of
passion. But when asked what he meant by that “zone” or “place,” Brown
testified, “my life was threatened. . . . All I know I need to stop him and
that’s what I did. . . . I wanted to stop him.” Brown told the jury, “I knew
what I had to do. And I knew how I feel. I felt I was gonna lose my life at
that moment. So I responded to the situation.” Brown also acknowledged
deciding to stab Gallegos before taking that action, which he described as
“self-defense” several times. At that point Brown “considered the threat
somewhat neutralized,” but then he reevaluated when he saw Gallegos still

8
walking. Fearing for his sister’s life, Brown believed he was “in the right” to
“r[u]n [Gallegos] over to terminate him. To terminate his threat.”
These circumstances are like those in the California Supreme Court’s
decision in Moye. In that case, the defendant testified that the victim
attacked him with a bat, the defendant was able to wrest the bat from the
victim, the victim continued attacking the defendant, and each time, the
defendant hit the victim defensively with the bat. (Moye, supra, 47 Cal.4th at
p. 552.) The defendant testified “ ‘I was defending my life. That’s what I was
doing. I thought he was going to kill me so I hit him until he stopped
moving.’ ” (Id. at p. 553.) Our Supreme Court determined that “[i]n the face
of defendant’s own testimony, no reasonable juror could conclude defendant
acted ‘ “ ‘rashly or without due deliberation and reflection, and from this
passion rather than from judgment.’ ” ’ ” (Id. at p. 553.) The high court
reached this conclusion despite the defendant’s testimony that he was “not ‘in
the right state of mind’ ” because the defendant “immediately explained what
he meant by that statement—he was worried about getting hit by [the victim]
because he did not want to ‘get beat down and possibly be killed.’ ” (Id. at
p. 552.) The California Supreme Court also found no evidence that the
defendant panicked in the face of the attack; “in contrast, defendant testified
he acted deliberately in seeking to defend himself.” (Id. at p. 555.)
Like the defendant in Moye, Brown’s “only claim was that he acted out
of self-defense” (Moye, supra, 47 Cal.4th at p. 554) or defense of another in
killing Gallegos. Although Brown claimed to be in a “zone” or “place,” he
clarified that he was referring to his belief that his life was threatened and
his decision to stop that threat. Because Brown’s own testimony indicates he
acted deliberately in seeking to protect himself and his sister, no reasonable

9
juror would conclude that Brown acted from passion rather than judgment
when he killed Gallegos.
Based on the foregoing, there was not substantial evidence showing
that Brown killed Gallegos in a heat of passion. The trial court therefore did
not err in refusing to instruct the jury on that issue.
B. Trial Court Properly Instructed the Jury on Malice
Brown argues that the trial court failed to instruct the jury that the
People must prove the absence of imperfect self-defense or heat of passion to

establish the malice element of murder.2 Each of Brown’s contentions on this
issue, which we address below, lack merit.
We independently review a claim of instructional error. (People v.
Barber (2020) 55 Cal.App.5th 787, 798.) “[W]e consider the instructions as a
whole and assume jurors are intelligent persons, capable of understanding
and correlating all jury instructions which are given. [Citation.]
‘ “Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such
interpretation.” ’ ” (Id. at pp. 798–799.)
First, Brown is incorrect that the absence of imperfect self-defense or
heat of passion is an element of murder that the trial court must instruct on
in every case when murder is charged. “[A] murder defendant is not entitled

2 The People contend this claimed error, as well as those discussed in
sections III(C), (D), and (F) are forfeited because Brown did not raise them in
the trial court. However, Brown argues his trial counsel’s failure to raise
these issues amounts to ineffective assistance of counsel. We therefore
address the merits of these claims. Because we find no error, Brown is
unable to establish either prong required to prove ineffective assistance of
counsel. (In re Gay (2020) 8 Cal.5th 1059, 1073 [“ ‘An ineffective assistance
claim has two components: A petitioner must show that counsel’s
performance was deficient, and that the deficiency prejudiced the
defense.’ ”].)
10
to instructions on the lesser included offense of voluntary manslaughter if
evidence of provocation or imperfect self-defense, which would support a
finding ‘that the offense was less than that charged,’ is lacking.” (People v.
Rios (2000) 23 Cal.4th 450, 463, fn. 10.)
Second, as explained above, there was insubstantial evidence of heat of
passion; therefore, the trial court did not need to instruct the jury on that
issue.
Finally, the trial court properly instructed the jury that the People had
the burden of disproving imperfect self-defense. Pursuant to CALCRIM
No. 571, the trial court explained that “[a] killing that would otherwise be
murder is reduced to voluntary manslaughter if the defendant killed a person
because he acted in imperfect self-defense,” and “[t]he People have the
burden of proving beyond a reasonable doubt that the defendant was not
acting in imperfect self-defense. If the People have not met this burden, you
must find the defendant not guilty of murder.”
Brown claims the instruction in CALCRIM No. 571 was insufficient
because CALCRIM No. 520, the instruction setting forth the elements of
murder, did not address imperfect self-defense. He further contends the trial
court and prosecutor directed the jury to decide the murder charge first,
and the paragraph stating the People’s burden of disproving imperfect self-
defense was buried at the end of CALCRIM No. 571.
Contrary to Brown’s claims, the trial court instructed the jury that it
“may consider the[ ] different kinds of homicide in whatever order you wish.”
The trial court and the prosecutor merely informed the jury that in order to
reach a verdict on a lesser included offense, the jury must find Brown not
guilty of the greater offense or offenses. The trial court also told the jury to
“[p]ay careful attention to all of these instructions and consider them

11
together.” “ ‘Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the court’s
instructions.’ ” (People v. Thomas (2023) 14 Cal.5th 327, 382.) Finally,
CALCRIM No. 520 “is a correct statement of the law” and CALCRIM No. 571
“properly include[s] the requirement that the prosecution
disprove . . . imperfect self-defense beyond a reasonable doubt.” (People v.
Howard (2024) 104 Cal.App.5th 625, 661.)
With these principles in mind and based on the circumstances of this
case, the trial court properly instructed the jury on malice.
C. The Trial Court Properly Responded to the Jury’s Question Regarding
Second Degree Murder and Voluntary Manslaughter
During deliberations, the jury submitted a note asking for “the
definition of ‘second degree’ ” and “the difference between ‘second degree’ and
‘voluntary manslaughter.’ ” The prosecutor and defense counsel agreed the
jury should be directed to the previously given instructions. The trial court
then responded to the note by stating, “[t]he definitions of second degree
murder and voluntary manslaughter are included in the packet of jury
instructions you have already received.”
Brown contends the trial court erred in answering the jury’s questions.
He argues the note shows the jury was confused by the instructions on second
degree murder and voluntary manslaughter and the trial court was required
to respond by instructing that malice required the absence of heat of passion
and imperfect self-defense. We disagree.
Pursuant to section 1138, if jurors “ ‘desire to be informed on any point
of law arising in the case, . . . the information required must be given.”
However, “ ‘[t]his does not mean the court must always elaborate on the
standard instructions. Where the original instructions are themselves full

12
and complete, the court has discretion under section 1138 to determine what
additional explanations are sufficient to satisfy the jury’s request for
information. [Citation.] Indeed, comments diverging from the standard are
often risky.’ ” (People v. Kopp (2019) 38 Cal.App.5th 47, 65.) “We review for
an abuse of discretion any error under section 1138.” (Ibid.)
As discussed above, the trial court correctly instructed the jury that the
People had the burden of disproving imperfect self-defense, and the evidence
did not warrant a heat of passion instruction. Further, the instructions
describing murder and manslaughter were “ ‘full and complete,’ ” requiring
no additional explanation. (People v. Kopp, supra, 38 Cal.App.5th at p. 65.)
Finally, both parties agreed that referring the jury to the previously given
instructions was the appropriate response to the note. The trial court
therefore did not abuse its discretion when it decided no additional
explanation was necessary.
D. The Trial Court Properly Instructed on Imperfect Self-defense
Pursuant to CACLCRIM No. 571, the trial court instructed the jury
that “[i]mperfect self-defense does not apply when the defendant, through his
own wrongful conduct, has created circumstances that justify his adversary’s
use of force.” Brown claims this instruction was overbroad, ambiguous and
misleading because the trial court did not explain what wrongful conduct
would justify a victim’s response in this context. Reviewing this issue
independently (People v. Barber, supra, 55 Cal.App.5th at p. 798), we are
unpersuaded.
We are not aware of, nor does Brown cite, any authority stating that
“wrongful conduct” (CALCRIM No. 571) has a technical legal definition in
this context that “differs from its nonlegal meaning,” such that a sua sponte
instruction defining that term is required (People v. Estrada (1995)

13
11 Cal.4th 568, 574, italics omitted). Indeed, the California Supreme Court
has repeatedly used the phrase “wrongful conduct” in describing the limits of
imperfect self-defense without any suggestion that the term has a technical
legal definition. (See, e.g., People v. Rangel (2016) 62 Cal.4th 1192, 1226;
People v. Enraca, supra, 53 Cal.4th at p. 761; People v. Valencia (2008)
43 Cal.4th 268, 288.)
Nor does CACLCRIM No. 571 state that any wrongful conduct
precludes imperfect self-defense. Instead, the instruction clarifies that a
defendant falls outside the reach of imperfect self-defense only when a
defendant’s wrongful conduct “justif[ies] his adversary’s use of force.”
(CACLCRIM No. 571.) As such, consistent with case law, the instruction
narrows the type of wrongful conduct that excludes a defendant from the
benefit of imperfect self-defense. (See, e.g., People v. Rangel, supra,
62 Cal.4th at p. 1226 [imperfect self-defense “may not . . . be invoked ‘by a
defendant who, through his own wrongful conduct (e.g., the initiation of a
physical assault or the commission of a felony), has created circumstances
under which his adversary’s attack or pursuit is legally justified’ ”].)
Moreover, the self-defense instructions informed the jury when a
victim’s response would be justified. The trial court told the jury that “[a]
person who starts a fight has a right to self-defense” if that person tried to
stop fighting and communicated that intent, and “the opponent continued to
fight.” The trial court explained that “if the defendant used only non-deadly
force, and the opponent responded with such sudden and deadly force that
the defendant could not withdraw from the fight, then the defendant had the
right to defend himself with deadly force and was not required to try to stop
fighting or communicate the desire to stop to the opponent.” The trial court

14
further instructed “[t]he right to use force in self-defense . . . continues only
as long as the danger exists or reasonably appears to exist.”
These instructions convey that a victim’s justified response to an initial
aggressor is limited to using like force against a present danger. A
reasonable juror would apply these principles to imperfect self-defense
because in addition to instructing the jury to correlate the instructions, the
trial court informed the jury that the only difference between perfect and
imperfect self-defense was the reasonableness of defendant’s belief in the
need to use deadly force.
Finally, counsel on both sides accurately explained the parameters of
imperfect self-defense in their closing arguments. Arguing that Gallegos
escalated a fistfight by trying to kill Brown with a box cutter, Defense counsel
stated, “[t]he reaction to kill Mr. Brown is unlawful. And when that happens,
Mr. Brown is allowed to respond with deadly force,” “[y]ou can’t simply
assault somebody and give somebody the right to use deadly force.”
Regarding the disputed sentence in CALCRIM No. 571, defense counsel
stated, “[j]ustify means legal,” and “[w]e hear it all the time. You can’t bring
a knife to a fistfight, right?”
The prosecutor broke down possible scenarios for the jury, stating, “if
the defendant used deadly force first, [Gallegos’s] actions are justified, no
self-defense. If the defendant used non-deadly force first and [Gallegos]
responded with non-deadly force, right, Mr. Brown starts with punches,
[Gallegos] responds with punches, that’s self-defense. His actions are
justified. No complete self-defense. No imperfect self-defense. Finally, if the
defendant used non-deadly force first, and [Gallegos] used deadly force in
response, because the defendant could have withdrawn, he gets no self-
defense.”

15
Based on the foregoing, the challenged portion of CALCRIM No. 571
correctly stated the law, and we do not find it overbroad, ambiguous or
misleading under the circumstances of this case. We therefore see no error
on this ground.
E. The Trial Court Acted Within its Discretion in Excluding Testimony
from Brown’s Prison Expert
1. Additional Background
Before trial, the court held an Evidence Code section 402 hearing to
determine whether it would admit testimony from Brown’s prison expert,
Adam Mortera. Mortera testified, describing that since completing a 22-year
prison sentence in 2013, he has provided various rehabilitative services for
current and former prison inmates. Mortera explained prison culture, which
involves strict rules about racial segregation, and respect, that inmates
enforce on each other through violence. Former inmates retain prison culture
upon release, and depending on the person they may shed that culture and
adapt to life outside a prison setting. Mortera opined that if a Latino former
inmate called an African-American former inmate the N-word or stole from or
was blatantly disrespectful to the African-American former inmate, both
parties would understand that conduct would give rise to a fight.
Analyzing Mortera’s testimony, the trial court commented, “isn’t that
something that just the average person would know and that your client

testifies[3] and he says when he called me the N-word, I reacted the way I
reacted because of how long I was in prison. And in prison you get shanked
for that, and that’s how I was reacting. Why do I need an expert to tell me
that a person who gets out of prison is affected by their life they led in

3 Brown acknowledged that he would testify before Mortera offered his
opinion.
16
prison?” The trial court also raised the potential for confusion, stating, “even
I’m sitting here, knowing full well why we’re here, I’m thinking, right, I have
to remember my—to remind myself this incident didn’t occur in prison.”
Ultimately, the trial court found Mortera’s testimony inadmissible,
stating, “I don’t think it is expert testimony. I think it’s common knowledge
that prisons are violent. And I don’t think that he has any particularized
expertise to testify that some people who come out of prison are still affected
by that experience and might react differently than a person who hasn’t been
in prison. I don’t think that that is a matter that one needs expert testimony
to understand. [¶] In addition, I think pursuant to . . . Evidence Code
352, . . . the prejudicial effect as in the confusion of the issues and the
consumption of time is far outweighed by any probative value that his
testimony could lend.”
2. Brown’s Argument
Brown argues the trial court erred by excluding Mortera’s testimony.
Pointing to Mortera’s own incarceration and his training and work with
prisoners since his release, Brown contends Mortera qualified as an expert on
prisons and prisoners. Brown claims Mortera’s proposed testimony went
beyond general knowledge regarding prisons and prisoners’ ability to adapt
after release, and was relevant to self-defense, provocation, and heat of
passion.
3. Analysis
Expert testimony must be “[r]elated to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the
trier of fact.” (Evid. Code, § 801, subd. (a).) As such, “[e]xpert testimony will
be excluded ‘ “ ‘when it would add nothing at all to the jury’s common fund of
information.’ ” ’ ” (People v. Brown (2016) 245 Cal.App.4th 140, 157.) A trial

17
court also has discretion to exclude expert testimony when “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.” (Evid.
Code, § 352.)
“We review the trial court’s ruling on the admissibility of expert
testimony for abuse of discretion.” (People v. Brown, supra, 245 Cal.App.4th
at p. 157.) A trial court abuses its discretion when its ruling is “ ‘ “so
irrational or arbitrary that no reasonable person could agree with it.” ’ ”
(Ibid.)
Here, we agree with the trial court that prison violence is a matter of
common knowledge. The trial court also accurately noted that a jury would
not need assistance to understand that a person’s experiences effect the way
a person reacts, especially when Brown was anticipated to testify and justify
his actions in part based on his prison history. (See, e.g., People v. McDowell
(2012) 54 Cal.4th 395, 429 [“the trial court did not abuse its discretion in
determining that the essence of the proffered expert opinion testimony,
namely, that ‘if you have a bad childhood it can affect you as an adult,’ did
not require expert opinion testimony”].) Accordingly, the trial court did not
act irrationally or arbitrarily in determining that Mortera’s proposed
testimony was not sufficiently beyond the jury’s common experience to
warrant expert testimony.
Additionally, because Mortera addressed matters of common knowledge
and Brown would testify to those matters based on his personal experience,
the trial court had reason to conclude Mortera’s testimony had limited
probative value. Much of Mortera’s testimony also addressed life in prison,
while Brown’s murder of Gallegos occurred outside of prison, supporting the

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trial court’s concern for confusion of the issues. Consequently, the trial court
also had a rational basis for excluding the testimony under Evidence Code
section 352.
Under these circumstances, the exclusion of Mortera’s expert testimony
was within the trial court’s discretion.
F. The Prosecutors Did Not Err or Violate the Racial Justice Act (RJA)
The People sought to convict Brown of first degree murder on the
theory that he killed Gallegos willfully and with premeditation and
deliberation. To support that theory, in their opening and closing arguments
the prosecutors used the words “hunt,” “hunting,” and “hunted” to describe
Brown’s actions. They also described the murder weapon as a “hunting
knife.”
Brown argues the prosecutors’ characterization of Brown as an
aggressor who hunted Gallegos violated the RJA and constituted

prosecutorial error.4 Brown contends “hunt” implies predatory activity, so
the use of that word conveyed to the jury that Brown, an African-American,
was a predator or a predatory animal or beast and that Gallegos was his
prey. Brown claims the use of animal imagery is historically associated with
racism, and the prosecutors’ hunting references amounts to a racial epithet.
“A violation [of the RJA] is established if the defendant proves, by a
preponderance of the evidence,” that “[d]uring the defendant’s trial, . . . an
attorney in the case . . . used racially discriminatory language about the
defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or

4 Brown uses the term “prosecutorial misconduct,” but that “ ‘is
somewhat of a misnomer to the extent that it suggests a prosecutor must act
with a culpable state of mind. A more apt description of the transgression is
prosecutorial error.’ ” (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 853.)
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animus towards the defendant because of the defendant’s race, ethnicity, or
national origin, whether or not purposeful.” (§ 745, subd. (a).) “ ‘Racially
discriminatory language’ means language that, to an objective observer,
explicitly or implicitly appeals to racial bias, including, but not limited to,
racially charged or racially coded language, language that compares the
defendant to an animal, or language that references the defendant’s physical
appearance, culture, ethnicity, or national origin.” (§ 745, subd. (h)(4).)
Prosecutorial error, as a matter of state law, occurs when a prosecutor
“engage[s] in deceptive or reprehensible tactics in order to persuade the trier
of fact to convict.” (People v. Lightsey (2012) 54 Cal.4th 668, 718.) A
prosecutor’s actions violate federal constitutional protections when there is “a
pattern of conduct that is serious and egregious, such that the trial is
rendered so unfair that the resulting conviction violates the defendant’s right
to due process of law.” (Ibid.)
Hunting is a human behavior, especially when accomplished with a
knife. Although animals also hunt, as Brown acknowledges, the prosecutors
never called him a predator, animal, or beast. An objective observer would
not interpret the prosecutors’ use of the word “hunt” as appealing to racial
bias, but rather as a characterization of the premeditated nature of Brown’s

actions. We therefore see no violation of the RJA and no prosecutorial error.5

5 Having found no error, we also reject Brown’s claim of cumulative
error.
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IV. DISPOSITION
The judgment is affirmed.

RUBIN, J.

WE CONCUR:

BUCHANAN, Acting P. J.

KELETY, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11125365. Public record. Not legal advice.