Petition for Writ of Certiorari — Charles Chad Giese, Petitioner v. California

Supreme Court briefSep 21, 2020

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_____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________________________________________

CHARLES CHAD GIESE

Petitioner

STATE OF CALIFORNIA

Respondent

___________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL SECOND

APPELLATE DISTRICT DIVISION SIX

PETITION FOR WRIT OF CERTIORARI

FAY ARFA, A LAW CORPORATION

Fay Arfa, Attorney at Law

CA State Bar No. 100143

10100 Santa Monica Blvd., #300

Los Angeles, CA 90067

Tel.: (310) 841-6805

Fax :(310) 841-0817

Attorney for Appellant

CHARLES CHAD GIESE

QUESTIONS PRESENTED

Did Police Violated Giese’s Miranda Rights by

Interrogating Him While He was in Custody?

II.

By Excluding Evidence of the Decedent’s Drug Use,

Was Giese Deprived of His Constitutional Right to

Present a Defense?

III.

Did the Prosecutor Commit Prejudicial Misconduct

by Misstating the Law During Closing Argument

TOPICAL INDEX

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RELEVANT CONSTITUTIONAL PROVISIONS . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

State Trial Court Proceedings . . . . . . . . . . . . . . . 2

State Court Appellate Proceedings . . . . . . . . . . . 2

STATEMENT OF THE FACTS ELICITED FROM THE

CCA’S OPINION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

REASONS TO GRANT CERTIORARI . . . . . . . . . . . . . . . . . . . 7

II.

Certiorari Should Be Granted to Determine if the

Police Violated Giese’s Miranda Rights by

Interrogating Him While He was in Custody . . . . . . . 7

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Custodian Interrogation . . . . . . . . . . . . . . . . . . . . 7

The Deputies Subjected Giese to Custodial

Interrogation in Violation of Miranda . . . . . . . . 9

Certiorari Should Be Granted Because, by Excluding

Evidence of the Decedent’s Drug Use, Giese Was

Deprived of His Constitutional Right to Present a

Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III.

A Criminal Defendant Has the Constitutional

Right to Present a Defense . . . . . . . . . . . . . . . . . 11

Methamphetamine Adversely Affects a Person’s

Mind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Giese Was Deprived of His Right to Present a

Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certiorari Should Be Granted Because the

Prosecutor Committed Prejudicial Misconduct by

Misstating the Law During Closing Argument . . . . 15

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Prosecutor Must Not Commit

Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

The Prosecutor Committed Prejudicial

Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

The Prosecutor Improperly Argued That Motive

Means First Degree Murder . . . . . . . . . . . . . . . . . . . 17

The Prosecutor Improperly Argued That Giese

Committed Murder Because He Hid Evidence . . . . 18

The Prosecutor Improperly Argued That Self-Defense

Requires That Giese Reasonably Believed He Was

Going to Be Killed . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

The Prosecutor Improperly Misstated the “Average

Person” Standard for Provocation . . . . . . . . . . . . . . 19

The Prosecutor Improperly Urged the Jury to Find

Murder if the Jury did not Find imperfect self-defense

(18RT 5120) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

The Prosecutor Improperly Misstated the Law on

Premeditation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

The Prosecutor Improperly Argued That to Justify the

Killing, Giese Would Have Had to Suffer an

“Annihilated . . . Jaw.” (18RT 5192) . . . . . . . . . . . . 23

The Prosecutor Misstated the Reasonable Doubt

Standard of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

The Prosecutor’s Multiple Misstatements of

Law Constituted Prosecutorial Misconduct . . 24

Defense Counsel Rendered Ineffective

Assistance by Failing to Object to the

Prosecutorial Misconduct . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX

A . . . . . . . . . . . . . . . . . . . . . . . Court of Appeal Opinion (2/26/2020)

Case No. B292208

B . . . . . . . . . . . . . . . Court of Appeal Modified Opinion (3/25/2020)

Case No. B292208

C . . . . . . . . . . . . . . . . . . . . . . Petition for Review Denied (5/27/20)

California Supreme Court Case No. S261456

TABLE OF AUTHORITIES

FEDERAL CASES

Berger v. United States, 295 U.S. 78 (1935) . . . . . . . . . . . . . . . . . 16

Berkemer v. McCarthy, 468 U.S. 420 (1984) . . . . . . . . . . . . . . . . . 9

California v. Beheler, 463 U.S. 1121 (1983) . . . . . . . . . . . . . . . . . . 8

Chambers v. Mississippi, 410 U.S. 284 (1973) . . . . . . . . . . . . . . 12

Crane v. Kentucky, 476 U.S. 683 (1986) . . . . . . . . . . . . . . . . . . . . 12

Miranda v. Arizona, 384 U.S. 436 (1966) . . . . . . . . . . . . . . . 7 - 11

Oregon v. Mathiason, 429 U.S. 492 (1977) . . . . . . . . . . . . . . . . . . 8

Pennsylvania v. Muniz, 496 U.S. 582 (1990) . . . . . . . . . . . . . . . . . 8

Rhode Island v. Innis, 446 U.S. 291 (1980) . . . . . . . . . . . . . . . . . . 8

Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . 25

Washington v. Texas, 388 U.S. 14 (1967) . . . . . . . . . . . . . . . . 11, 12

STATE CASES

In re Christian S., 7 Cal.4th 768 (1994) . . . . . . . . . . . . . . . . . 19, 21

People v. Beltran 56 Cal.4th 935 (2013) . . . . . . . . . . . . . . . . . . . . 20

People v. Boatman, 221 Cal.App.4th 1253 (2014) . . . . . . . . . . . . 22

People v. Boyette, 29 Cal.4th 381 (2002) . . . . . . . . . . . . . . . . . . . 24

People v. Centeno, 60 Cal.4th 659 (2014) . . . . . . . . . . . . . . . . 24, 25

People v. Enraca, 53 Cal.4th 735 (2012) . . . . . . . . . . . . . . . . . . . 13

People v. Fosselman, 33 Cal.3d 572 (1983) . . . . . . . . . . . . . . . . . 25

People v. Hillhouse, 27 Cal.4th 469 (2002) . . . . . . . . . . . . . . . . . 17

People v. Humphrey, 13 Cal.4th 1073 (1996) . . . . . . . . . . . . . 19, 21

People v. Lopez, 199 Cal.App.4th 1297 (2011) . . . . . . . . . . . . . . . 23

People v. Marshall, 13 Cal.4th 799 (1996) . . . . . . . . . . . . . . . . . . 24

People v. Najera, 138 Cal.App.4th 212 (2006) . . . . . . . . . . . . . . . 20

People v. Rios, 23 Cal.4th 450 (2000) . . . . . . . . . . . . . . . . . . . . . . 21

People v. Valencia, 43 Cal. 4th 268, 278 (2008). . . . . . . . . . . . . . 14

People v. Wright, 242 Cal.App.4th 1461 (2015) . . . . . . . . . . . 20, 21

People v. Yeoman, 31 Cal.4th 93 (2003) . . . . . . . . . . . . . . . . . . . . 18

FEDERAL CONSTITUTION

U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

FEDERAL STATUTES

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATE STATUTES

Cal. Penal Code, § 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Cal. Penal Code, § 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Cal. Penal Code, § 12022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Case No.

_____________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________________________________________

CHARLES CHAD GIESE

Petitioner

STATE OF CALIFORNIA

Respondent

___________________________________________

Petitioner, CHARLES CHAD GIESE, respectfully petitions

for a writ of certiorari to review the judgment of the California

Court of Appeal, Second Appellate District, Division Six (Case No.

B292208)

OPINION BELOW

The CCA affirmed Giese’s conviction and denied rehearing.

(Case No. B292208) (Appendix A) The CSC summarily denied

review. (Case No. S261456) (Appendix B)

JURISDICTION

On May 27, 2020, the CSC denied review. (Appendix B)

The Court has jurisdiction. 28 U.S.C. § 1257(A).

RELEVANT CONSTITUTIONAL PROVISIONS

U.S. Const. amends. V, VI, XIV.

STATEMENT OF THE CASE

State Trial Court Proceedings

The jury convicted Giese of willful, deliberate, and

premeditated murder (Cal. Penal Code, §§ 187, 189) and found

true allegations that in committing the murder he used two

deadly weapons, i.e., a baseball bat and a knife.1 (§ 12022, subd.

(b)(1)).

The trial court sentenced him to 26 years to life in state

prison.

State Court Appellate Proceedings

The CCA affirmed Giese’s conviction. (Case No. B292208)

The CSC denied review. (Case No. S261456))

All references are to the California Penal Code unless

otherwise stated.

STATEMENT OF FACTS

ELICITED FROM THE CCA’S OPINION

(Footnotes Contain Facts

that Giese Believes Should Have Been Included)

In early 2015,2 appellant began renting a room

in Walter Vallivero’s mobile home. Shortly after

appellant moved in, the manager of the mobile home

park began receiving complaints from other residents

about frequent loud arguments at Vallivero’s home.3

There were also complaints that appellant had

urinated in public and was acting strangely.4 Several

residents requested that appellant be ordered to leave

the mobile home park. Shawn Reed, the owner of the

park, sent Vallivero a letter outlining the complaints

regarding appellant and stating that he would be

asked to leave the park if his inappropriate behavior

continued.

On September 5, the police were called to

Vallivero’s home regarding a physical altercation

between appellant and Vallivero. Appellant told the

police that he and Vallivero were arguing about trash

All date references are to the year 2015.

After appellant moved in with Vallivero, the two engaged in

frequent arguments in which Vallivero did most of the arguing

and talking, while appellant was pretty quiet. (9RT 2461-2462;

AOB 18) Vallivero typically talked down to appellant and said

things like, “I hate you.” (9RT 2458-2460; 10RT 2729; AOB 18)

Neighbor/witness Sarah Demolar heard them argue constantly

and heard Vallivero tell appellant, “I’ll blow your fucking face

off.” (10RT 2730; 12RT 3415- 3416, 3425; AOB 19)

Neighbor/witness Joshua Demolar heard Vallivero say to

appellant: “I will shoot you in the face.” (10RT 2770- 2771; AOB

19)

Appellant had been treated by mental health for

schizophrenia. (1CT 176; AOB 21)

in the kitchen when Vallivero reached into the

cushion on the couch and pulled out a BB gun.

Appellant grabbed the hand that was holding the gun

and repeatedly punched Vallivero in the face.

Vallivero told the responding officers that appellant

repeatedly punched him in the face after he

confronted appellant about the messy kitchen.

According to Vallivero, whose face was bloody and

swollen, it was appellant who grabbed the BB gun

from the couch cushions before running outside.5

A few days later, Reed sent Vallivero a letter

referring to the recent incident and revoking

Vallivero’s right to have appellant as a renter. On

September 17, Reed sent Vallivero another letter

informing him that appellant had 30 days to

vacate the premises. Ten days later, Reed sent

Vallivero a letter informing him that appellant had

been observed recklessly driving in the mobile home

park while intoxicated. Vallivero subsequently told

Reed “he was having a hard time getting an

agreement with [appellant] to vacate the park.” On

October 7, appellant was formally served with notice

of the eviction proceedings against him.

On the morning of November 16, appellant’s

mother Brenda Caves called 911 and reported that

appellant had hit his roommate with a baseball bat,

that the roommate did not appear to be breathing,

and that appellant had put him in the bathtub.

San Luis Obispo County Sheriff’s Deputies Dustin

In the September 5, 2015 incident in which police were

called to the scene, neighbor/witness Barbara Clark testified

appellant looked scared, told her Vallivero had attacked him and

pulled a gun on him, and asked her to call 911. (10RT 2713-2714;

2717; AOB 19) Vallivero had a .22 blood alcohol count. He

asserted appellant had attacked him. (8RT 2249-2251; AOB 20)

The responding deputy thought appellant’s account was more

credible and recommended that assault charges be filed against

Vallivero. (8RT 2251; AOB 20)

Phillips and Jason Hall responded to Caves’s house.

Appellant was outside the house with Caves and his

hand was bandaged.6 Appellant requested medical

assistance and Deputy Hall rode with him in an

ambulance to the hospital. While they were in the

ambulance, appellant said he cut his finger on a glass

bottle and that his jaw hurt because he had been hit

with a fist.

Vallivero’s body was found in the bathtub. He

had a laceration to his left arm, a deep incision

wound on the back of his neck, lacerations and

fractures along the left side of his head, stab wounds

to his back, and numerous wounds to his head and

body that were consistent with blunt force trauma.

Vallivero also had defensive wounds on his forearms,

hands, and wrists, and bruises on the right side of his

torso. The cause of death was blunt force injuries to

the head. Toxicology results showed that Vallivero

had a 0.19 blood alcohol level; tests for controlled

substances were negative.

Appellant was interviewed at the hospital and

later at the sheriff’s station.7 He said he had just

finished cleaning the kitchen when Vallivero arrived

home after buying beer and told him to “get the fuck

Deputies ordered appellant to come out of his mother’s

house and to walk backwards toward the deputies, who patted

him down on the street. After he came out of the house, a law

enforcement officer (deputy or detective) was with him at all

times. (5RT 1210, 1212, 1217, 1224-1225, 1238, 1241-1242; 11RT

3033; 1CT 205; AOB 31-32)

The detectives shut the door to appellant’s hospital room

during the hospital interview. They accompanied appellant when

they allowed him to use the bathroom and take smoke breaks.

(5RT 1265; AOB 38)

out of [his] house.”8 Appellant became “heated” and

armed himself with a rock because he was going to

walk past Vallivero and was “sick of [Vallivero’s]

shit.” Vallivero told appellant, “I’m going to kill you.

You’re going to fucking die.”9 Vallivero punched

appellant. Appellant hit Vallivero with the rock and

struck him approximately three times on the head

with a beer bottle. The bottle broke and Vallivero fell

backwards onto the couch. Appellant picked up a

baseball bat and hit Vallivero with it, causing

Vallivero to fall to the floor.

Appellant continued to hit Vallivero with the bat as

Vallivero lay motionless on the floor. Appellant then

retrieved a knife and tried to stab Vallivero in the chest “to

make sure that he was gone.” The knife would not

penetrate Vallivero’s chest, so appellant stabbed him in the

neck.

After placing Vallivero’s body in the bathtub,

appellant drank Vallivero’s beer and attempted to clean the

house. He also considered fleeing, but ultimately called

Caves and told her what had happened.

Appellant believed that he had to defend

himself because Vallivero “kept punching” him, but

Vallivero was drunk and on meth at the time of the

incident. (11RT 3036; 1CT 211; 2T 469-471, ,475-477; AOB 22-23,

33)

Appellant was out on the patio, Vallivero was swearing at

him and threatened to kill him, and when appellant tried to enter

the house, Vallivero blocked his entry and cold cocked him in the

jaw. Appellant was scared. When he responded by attacking

Vallivero, possibly with a rock, and then with a beer bottle, bat,

and knife, he didn’t stop and couldn’t stop; he was “in overdrive.”

He thought Vallivero was going to kill him. (11RT 3036; 2CT 469471, 475-477, 483, 500, 525; AOB 22-24) The incident happened

really fast; appellant feared for his life and defended himself

against Vallivero who kept coming at him. (2CT 468, 474, 485,

489, 491; AOB 24-25)

acknowledged that Vallivero had struck him only

once or twice. Appellant felt that his conduct was due

to feelings of frustration that “went way overboard”

and added that if he could “take it back [he] would.”

REASONS TO GRANT CERTIORARI

Certiorari Should Be Granted to Determine if

the Police Violated Giese’s Miranda Rights by

Interrogating Him While He was in Custody

Introduction

When the deputies responded to the 911 call to “collect and

control” Giese, they kept him under their control and knew he

was the only suspect in a reported homicide. (5RT 1222- 1223,

1237) While confined, the deputies subjected him to custodial

interrogation without advising him of his constitutional right to

remain silent. Miranda v. Arizona, 384 U.S. 436 (1966) Because

the police significantly deprived Giese of his freedom and then

questioned him, the police should have advised him of his

privilege against self incrimination. Also, because the deputies

violated Giese’s Miranda rights, Giese’s statements should have

been suppressed.

Custodian Interrogation

The Fifth Amendment right against self-incrimination

requires the exclusion of statements elicited in a custodial

interrogation unless the suspect was first issued warnings

pursuant to Miranda, 384 U.S. at 444-45. Miranda and its

progeny govern the admissibility of statements made during

custodial interrogation in both state and federal courts. See id.

Miranda safeguards are required when a suspect is (1) "in

custody" and (2) subject to "interrogation" by the government.

Miranda, 384 U.S. at 444. A suspect is in custody when "there is

a 'formal arrest or restraint on freedom of movement' of the

degree associated with a formal arrest." California v. Beheler, 463

U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983)

(quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50

L. Ed. 2d 714 (1977) (per curiam)).

An "interrogation" includes both express questioning and

its "functional equivalent." Rhode Island v. Innis, 446 U.S. 291,

301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). This includes any

words or actions that an officer could reasonably have foreseen

would "elicit an incriminating response." Id.; see also

Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S. Ct. 2638, 110

L. Ed. 2d 528 (1990) (plurality opinion).

"[W]hen an individual is taken into custody or otherwise

deprived of his freedom by the authorities in any significant way

and is subjected to questioning, the privilege against selfincrimination is jeopardized. Procedural safeguards must be

employed to protect the privilege...." Miranda, 384 U.S. at 478479.

Incommunicado interrogation in a police dominated

atmosphere generates “inherently compelling pressures which

work to undermine the individual’s will to resist and to compel

him to speak where he would not otherwise do so freely.” Id. at

467.

Miranda safeguards exist, in part, “to ensure that the police

do not coerce or trick captive suspects into confessing.” Berkemer

v. McCarthy, 468 U.S. 420, 433 (1984).

The Deputies Subjected Giese to Custodial

Interrogation in Violation of Miranda

The deputies took Giese, the only suspect, into custody and

confined him until law enforcement could interrogate him. (5RT

1222-1223, 1237) When the deputies arrived, they ordered Giese

to come outside and walk backwards toward them. The deputies

then patted Giese down on the street. (5RT 1210, 1212, 12241225)

The watch commander, fire department medics, and an

ambulance responded to the scene. A deputy confined Giese. (5RT

1217, 1225) A deputy accompanied Giese in the ambulance to the

hospital; another deputy followed in a patrol car. (5RT 1217,

1226) Deputies escorted Giese to the emergency room and stayed

with him until Detective Marquez arrived. Then, they stationed

themselves in the hallway. (5RT 1238; 11RT 3033)

Because Giese said Vallivero was dead, the deputies

subjected Giese to prolonged interviews at the hospital and

sheriff’s station to get him to admit his degree of culpability. The

officers gave evasive answers when Giese asked if he was being

“booked.” Detective Paul interrogated Giese at his curtained

bedside, with Detective Marquez and the two deputies stationed

just outside for more than 30 minutes. (5RT 1206)

Because law enforcement knew Giese was the prime

suspect, they confined and extensively interrogated him without

advising him of his constitutional right to remain silent.

Miranda, 384 U.S. at 478-479. Because the police significantly

deprived Giese of his freedom and then questioned him to elicit

incriminating responses, the police should have advised him of

his privilege against self incrimination. Giese’s Miranda rights

were violated and his statements should have been suppressed.

II.

Certiorari Should Be Granted Because, by

Excluding Evidence of the Decedent’s Drug Use,

Giese Was Deprived of His Constitutional Right

to Present a Defense

Introduction

The trial court excluded all reference to the decedent’s drug

and alcohol use. (13RT 3611) Giese’s defense that, the evidence

showed that Giese acted out of fear for his life and did not intend

to kill the decedent, had probative value. By excluding the

evidence, which reflected why Giese responded to the decedent,

Giese was deprived of his right to present his defense to the jury.

Giese’s perceptions of the decedent’s actions proved that Giese

acted because he believed the decedent intended to kill him.

A Criminal Defendant Has the Constitutional

Right to Present a Defense

A criminal defendant has the constitutional right to present

a defense, including his version of the facts and witnesses who

will testify on his behalf. Washington v. Texas, 388 U.S. 14, 19

(1967) In light of this constitutional standard, the trial court may

not apply evidentiary rules mechanistically to deprive a

defendant of the opportunity to present legitimate exculpatory

evidence. Crane v. Kentucky, 476 U.S. 683, 690-691 (1986);

Chambers v. Mississippi, 410 U.S. 284, 302-303 (1973).

"Whether rooted directly in the Due Process Clause of the

Fourteenth Amendment, [Chambers v Mississippi, 410 U.S. 284],

or in the Compulsory Process or Confrontation clauses of the

Sixth Amendment, [citations], the Constitution guarantees

criminal defendants 'a meaningful opportunity to present a

complete defense.' [Citations.] . . . We break no new ground in

observing that an essential component of procedural fairness is

an opportunity to be heard. [Citations.] . . . In the absence of any

valid state justification, exclusion of this kind of exculpatory

evidence deprives a defendant of the basic right to have the

prosecutor's case encounter and 'survive the crucible of

meaningful adversarial testing.' [Citations.]" Crane, 476 U.S. at

690-691; see also Washington v. Texas, 388 U.S. at 19; Chambers

v. Mississippi, 410 U.S. 284.

Methamphetamine Adversely Affects a Person’s

Mind

Methamphetamine use significantly impacts a person’s

mind and body. Methamphetamine use can cause very severe

disturbances in thinking similar to those associated with

paranoid psychosis or manic-depressive illness. People v. Enraca,

53 Cal.4th 735, 745-46 (2012).

“[P]robably the most common characteristic would be … an

irrational fear that someone is trying to hurt you.” A minor threat

may be perceived as a very severe and life-threatening situation.

Methamphetamine use is believed to produce these symptoms by

releasing “adrenalin-type chemicals.” The half-life of

methamphetamine is typically 11 hours. However, the effects of

methamphetamine intoxication may last much longer, depending

on the individual. People v. Enraca, 53 Cal. 4th at 745-46.

Chronic methamphetamine usage can produce a

biochemical impairment of the brain. When this occurs, the

extent of debilitation cannot be determined by the level of

methamphetamine found in the blood, since the effect of the

dosages taken over time is cumulative. A "rage reaction" is

essentially a lesser form of amphetamine psychosis in which the

biochemically impaired user reacts irrationally or violently to a

true sensory stimulus. A person experiencing a rage reaction acts

without thought . . .” People v. Valencia, 43 Cal. 4th 268, 278

(2008).

Giese Was Deprived of His Right to Present a

Defense

The decedent’s prior drug use would have corroborated

Giese’s belief about the decedent’s behavior. Evidence of the

decedents past drug use would have solidified and corroborated

Giese’s perception of the decedent and justified Giese’s need to act

in self-defense. The evidence and testimony would have

undermined the prosecution’s case by reinforcing Giese’s

perceptions about the decedent’s dangerousness.

The jury needed to understand Giese’s mind. The jury

needed to understand that Giese acted out of fear for his life.

The jury’s understanding of Giese’s state of mind was vital to his

defenses; excluding the evidence gave the jury an unrealistic

picture of the circumstances surrounding the incident. The trial

court’s exclusion of the evidence about the decedent’s drug use

and how it affected Giese’s perceptions of the decedent deprived

Giese of due process, a fair trial, and the right to prepare and

present a defense. U.S. Const. amends. V, VI, XIV.

III.

Certiorari Should Be Granted Because the

Prosecutor Committed Prejudicial Misconduct

by Misstating the Law During Closing

Argument

Introduction

The prosecutor misstated the law several times in closing

argument. The prosecutor improperly argues that motive equals

murder, that hiding evidence meant Giese committed a murder,

that self-defense required that Giese believed he was going to be

killed, that what the neighbors believed constituted the “average

person” standard for provocation, that Giese committed murder if

the jury did not find imperfect self-defense, that premeditation

was equivalent to deciding whether to stop at a yellow light, that

to justify the killing, Giese would have had to suffer an

“annihilated . . . jaw,” that reasonable doubt equated to a

reasonable decision.

The prosecutor’s repeated misstatements of law in closing

argument constituted prejudicial misconduct and deprived Giese

of due process and a fair trial. Berger v. United States, 295 U.S.

78, 88, 55 S. Ct. 629, 633 (1935)

The Prosecutor Must Not Commit Misconduct

“The United States Attorney is the representative not of an

ordinary party to a controversy, but of a sovereignty whose

obligation to govern impartially is as compelling as its obligation

to govern at all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that justice shall be

done. As such, he is in a peculiar and very definite sense the

servant of the law, the twofold aim of which is that guilt shall not

escape or innocence suffer. He may prosecute with earnestness

and vigor -- indeed, he should do so. But, while he may strike

hard blows, he is not at liberty to strike foul ones. It is as much

his duty to refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to bring

about a just one.” Berger v. United States, 295 U.S. at 88.

“It is fair to say that the average jury, in a greater or less

degree, has confidence that these obligations, which so plainly

rest upon the prosecuting attorney, will be faithfully observed.

Consequently, improper suggestions, insinuations and, especially,

assertions of personal knowledge are apt to carry much weight

against the accused when they should properly carry none.” Id.

The Prosecutor Committed Prejudicial

Misconduct

The prosecutor engaged in massive, pervasive and

consequential conduct:

The Prosecutor Improperly Argued That Motive

Means First Degree Murder

The prosecutor argued: “There is clear motive in this case,

the eviction.” Giese was “sick of . . . [Vallivero] trying to ruin his

life. Walter was verbally abusive. Claims that he basically had to

live out of his car because of this. He claims he got into debt over

this. He was in anxiety because of this guy. And when you heard

and saw him on that tape, you could feel the anger coming back to

him. That anger that you saw is proof of motive, and if there is

motive, there’s first degree murder because it came to him before.”

(18RT 5113) (Italics added.)

The prosecutor misstated the law. Motive does not turn a

homicide into first degree murder. It is not an element of murder

or of premeditated murder ( People v. Hillhouse, 27 Cal.4th 469,

503-504 (2002)) and it does not transform a homicide to first

degree murder. The prosecutor’s argument that “if there is

motive, there’s first degree murder” (18RT 5113) misstated the

law and constituted misconduct. People v. Hill, 17 Cal.4th 800,

830 (1998).

The Prosecutor Improperly Argued That Giese

Committed Murder Because He Hid Evidence

The prosecutor argued that Giese’s “hiding evidence” by

cleaning up the crime scene after killing Vallivero, “as the law

tells you, that means he in his own mind knows he is guilty of

murder.” (18RT 5114) This misstated the law.

Although trying to hide evidence may show consciousness of

guilt of some homicide charge, where the theory of defense was

that Giese was not guilty of premeditated murder, but acted in

self-defense or was guilty only of the lesser crime of voluntary

manslaughter, the prosecutor’s argument misstated the law.

Giese’s conduct after Vallivero was dead does not mean he knew

he was guilty of murder. People v. Yeoman, 31 Cal.4th 93, 131

(2003).

The Prosecutor Improperly Argued That Self-defense

Requires That Giese Reasonably Believed He Was

Going to Be Killed

The prosecutor argued: “If you find justifiable homicide as a

complete defense to murder, you must find the defendant

reasonably believed he was in imminent danger of being killed,

right then and there, which obviously he wasn’t.” (18RT 5115)

Further: “[T]he defendant acted in imperfect self-defense if he

actually believed he was in imminent danger of being killed . . . ”

(18RT 5120) (Italics added.)

The prosecutor misstated the law. The fear must be of

Imminent harm; the defendant need not fear imminent death.

“The defendant’s fear must be of imminent danger to life or great

bodily injury.” People v. Humphrey, 13 Cal.4th 1073, 1082 (1996)

(perfect self-defense); In re Christian S., 7 Cal.4th 768, 773

(1994).

The Prosecutor Improperly Misstated the “Average

Person” Standard for Provocation

The prosecutor stated provocation is what would cause “a

person of average disposition to act rashly and without due

deliberation,” which could be tested by what Giese’s neighbors,

Kristy Tolbert and Josh Demolar did in response to the ongoing

conflict between Giese and Vallivero. Tolbert “heard it every day”

and “was numb to it.” Neither Tolbert nor Demolar thought

enough about it to call 911. Ergo, “the average person would not

have acted rashly and without due deliberation.” (18RT 51175118)

The prosecutor misstated the standard for provocation,

which is not how a threatened person’s unthreatened neighbors

would react. Rather, “[t]he focus is on the provocation – the

surrounding circumstances – and whether it was sufficient to

cause a reasonable person to act rashly.” People v. Najera, 138

Cal.App.4th 212, 224 (2006). “If an ordinary person of average

disposition, under the same circumstances, would also react in

this manner, the provocation is adequate.” People v. Wright, 242

Cal.App.4th 1461, 1482 (2015), citing People v. Beltran 56 Cal.4th

935, 950 (2013); emphasis added.) Telling the jury that

provocation should be judged by how Giese’s neighbors reacted to

overhearing the ongoing arguments misstated the law.

The Prosecutor Improperly Urged the Jury to Find

Murder if the Jury did not Find imperfect self-defense

(18RT 5120)

The prosecutor erroneously stated, “If you find there is no

imperfect self-defense, then it’s murder.” (18RT 5120) Although

perfect self-defense requires an actual and objectively reasonable

belief in the need to defend and imperfect self-defense allows that

belief to be objectively unreasonable People v. Humphrey, 13

Cal.4th at 1082, the jury still could find Giese guilty of a lesser

included offense to murder, i.e., heat of passion voluntary

manslaughter, a separate legal theory and separate lesser

included offense from perfect and imperfect self-defense. See,

People v. Rios, 23 Cal.4th 450, 454 (2000).

Unreasonable or imperfect self-defense is based on a

defendant’s acts under an actual but unreasonable belief in the

need to defend himself against imminent peril of death or great

bodily harm. In re Christian S., 7 Cal.4th at 779, fn. 3. A heat of

passion killing, on the other hand, does not involve an

unreasonable belief in the need to defend oneself, but rather,

actions in response to objectively reasonable provocation. People

v. Wright, 242 Cal.App.4th at 1481. Telling the jury that if there

is no imperfect self-defense, then it is murder, misstated the law.

The Prosecutor Improperly Misstated the Law on

Premeditation

The prosecutor likened premeditation to the “every day,” of

driving through a yellow light. The prosecutor argued

premeditation concerns “the extent of the reflection. And in jury

selection we talked about the idea of coming to a yellow light,

which we do every day. And in that instant, you are looking to see

if someone is coming the other way, you are looking to your side,

you are looking to the other side, you are checking your speed,

you are checking to see how long that light was yellow. And in

that instant, you’ve carefully weighed and considered all of your

options and come to a decision.” (18RT 5125)

The prosecutor misstated the law because premeditation

and deliberate murder differs from an “every day” decision such

as deciding to go through a yellow light; it requires “substantially

more reflection” than that type of everyday decision. People v.

Boatman, 221 Cal.App.4th 1253, 1264 (2014)

The Prosecutor Improperly Argued That to Justify the

Killing, Giese Would Have Had to Suffer an

“Annihilated . . . Jaw.” (18RT 5192)

In rebuttal, the prosecutor improperly argued that to justify

the killing, Giese would have had to suffer an “annihilated his

jaw.” (18RT 5192) None of Giese’s defenses – perfect and

imperfect self-defense and heat of passion voluntary

manslaughter – require a person to wait until they suffer

“annihilating” injuries to respond with force. The defendant must

act from fear of “imminent” harm, that is, harm that is “apparent,

present, immediate, and must be instantly dealt with.”

People v. Lopez, 199 Cal.App.4th 1297, 1304 (2011). The

defendant must face “imminent” harm and is not required to wait

until he actually suffers harm of “annihilating” injuries. The

prosecutor misstated the law.

The Prosecutor Misstated the Reasonable Doubt

Standard of Proof

The prosecutor argued. “Reasonable doubt, it’s not beyond

all doubt . . . It’s the same standard used even in traffic court.

What it means is if defense scenario is possible, sure possible, but

still unreasonable, the law says reject that which is possible but

unreasonable . . . If what the People are saying is reasonable and

defense says it’s possible but unreasonable, that’s a guilty

verdict.” (18RT 5194)

The argument misstated the law. While the prosecution can

argue to the jury that the defense evidence or theory of the case is

unreasonable or unbelievable, it is prosecutorial misconduct to

argue the beyond a reasonable doubt standard is met if the jury

could find defendant guilty based on a “reasonable” account of the

evidence. People v. Centeno, 60 Cal.4th 659, 673 (2014).

The Prosecutor’s Multiple Misstatements of

Law Constituted Prosecutorial Misconduct

A prosecutor commits misconduct by consistently

misstating the applicable law. People v. Marshall, 13 Cal.4th 799,

831 (1996); People v. Boyette, 29 Cal.4th 381, 426 (2002). The

prosecutor’s multiple misstatements of law throughout closing

and rebuttal argument, unfairly urged the jury to convict Giese of

first degree murder.

Defense Counsel Rendered Ineffective

Assistance by Failing to Object to the

Prosecutorial Misconduct

Despite the prosecutor’s multiple instances of misconduct,

defense counsel failed to object and ask the court to admonish the

prosecutor. Centeno, 60 Cal.4th at 663-664; People v. Fosselman,

33 Cal.3d 572, 584 (1983). By failing to object, trial counsel’s

performance fell below professional norms, and prejudice from

counsel’s deficiency such that a reasonable probability exists that,

but for trial counsel’s error, the result would have been different.

Strickland v. Washington, 466 U.S. 668, 693-694 (1984).

CONCLUSION

Giese respectfully requests that certiorari be granted.

DATED: September 21, 2020

Respectfully submitted,

FAY ARFA, A LAW CORPORATION

/s Fay Arfa

___________________________

Fay Arfa, Attorney for Appellant

APPENDIX

Filed 2/26/20 P. v. Giese CA2/6

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 SIX

THE PEOPLE,

Plaintiff and Respondent,

2d Crim. No. B292208

(Super. Ct. No. 15F-10827)

(San Luis Obispo County)

CHARLES CHAD GIESE,

Defendant and Appellant.

Charles Chad Giese appeals the judgment entered after a

jury convicted him of willful, deliberate, and premeditated

murder (Pen. Code,1 §§ 187, 189) and found true allegations that

in committing the murder he used two deadly weapons, i.e., a

baseball bat and a knife (§ 12022, subd. (b)(1)). The trial court

sentenced him to 26 years to life in state prison and ordered him

to pay fines and fees including a $7,800 restitution fine (§ 1202.4,

subd. (b)), a $30 criminal conviction assessment (Gov. Code,

1 All statutory references are to the Penal Code unless

otherwise stated.

APPENDIX A

§ 70373), and a $40 court operations assessment (§ 1465.8, subd.

(a)(1)). Appellant contends (1) his extrajudicial statements to law

enforcement were admitted against him in violation of Miranda

v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); (2)

the evidence is insufficient to support his conviction of first

degree murder; (3) the court erred in excluding evidence of the

victim’s drug use; (4) the jury was erroneously instructed on the

right of self-defense available to a person who starts a fight or

engages in mutual combat; (5) the prosecutor committed

misconduct during closing argument, and defense counsel

provided ineffective assistance by failing to object; and (6) the

cumulative effect of the alleged errors compels the reversal of his

conviction. Appellant also contends the court erred in imposing

the criminal conviction and court operations assessments without

first determining his ability to pay those assessments, as

contemplated in People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas). We affirm.

STATEMENT OF FACTS

In early 2015,2 appellant began renting a room in Walter

Vallivero’s mobile home. Shortly after appellant moved in, the

manager of the mobile home park began receiving complaints

from other residents about frequent loud arguments at

Vallivero’s home. There were also complaints that appellant had

urinated in public and was acting strangely. Several residents

requested that appellant be ordered to leave the mobile home

park. Shawn Reed, the owner of the park, sent Vallivero a letter

outlining the complaints regarding appellant and stating that he

would be asked to leave the park if his inappropriate behavior

continued.

2 All date references are to the year 2015.

APPENDIX A

On September 5, the police were called to Vallivero’s home

regarding a physical altercation between appellant and Vallivero.

Appellant told the police that he and Vallivero were arguing

about trash in the kitchen when Vallivero reached into the

cushion on the couch and pulled out a BB gun. Appellant

grabbed the hand that was holding the gun and repeatedly

punched Vallivero in the face. Vallivero told the responding

officers that appellant repeatedly punched him in the face after

he confronted appellant about the messy kitchen. According to

Vallivero, whose face was bloody and swollen, it was appellant

who grabbed the BB gun from the couch cushions before running

outside.

A few days later, Reed sent Vallivero a letter referring to

the recent incident and revoking Vallivero’s right to have

appellant as a renter. On September 17, Reed sent Vallivero

another letter informing him that appellant had 30 days to

vacate the premises. Ten days later, Reed sent Vallivero a letter

informing him that appellant had been observed recklessly

driving in the mobile home park while intoxicated. Vallivero

subsequently told Reed “he was having a hard time getting an

agreement with [appellant] to vacate the park.” On October 7,

appellant was formally served with notice of the eviction

proceedings against him.

On the morning of November 16, appellant’s mother

Brenda Caves called 911 and reported that appellant had hit his

roommate with a baseball bat, that the roommate did not appear

to be breathing, and that appellant had put him in the bathtub.

San Luis Obispo County Sheriff’s Deputies Dustin Phillips and

Jason Hall responded to Caves’s house. Appellant was outside

the house with Caves and his hand was bandaged. Appellant

APPENDIX A

requested medical assistance and Deputy Hall rode with him in

an ambulance to the hospital. While they were in the ambulance,

appellant said he cut his finger on a glass bottle and that his jaw

hurt because he had been hit with a fist.

Vallivero’s body was found in the bathtub. He had a

laceration to his left arm, a deep incision wound on the back of

his neck, lacerations and fractures along the left side of his head,

stab wounds to his back, and numerous wounds to his head and

body that were consistent with blunt force trauma. Vallivero also

had defensive wounds on his forearms, hands, and wrists, and

bruises on the right side of his torso. The cause of death was

blunt force injuries to the head. Toxicology results showed that

Vallivero had a 0.19 blood alcohol level; tests for controlled

substances were negative.

Appellant was interviewed at the hospital and later at the

sheriff’s station. He said he had just finished cleaning the

kitchen when Vallivero arrived home after buying beer and told

him to “get the fuck out of [his] house.” Appellant became

“heated” and armed himself with a rock because he was going to

walk past Vallivero and was “sick of [Vallivero’s] shit.” Vallivero

told appellant, “I’m going to kill you. You’re going to fucking die.”

Vallivero punched appellant. Appellant hit Vallivero with the

rock and struck him approximately three times on the head with

a beer bottle. The bottle broke and Vallivero fell backwards onto

the couch. Appellant picked up a baseball bat and hit Vallivero

with it, causing Vallivero to fall to the floor.

Appellant continued to hit Vallivero with the bat as

Vallivero lay motionless on the floor. Appellant then retrieved a

knife and tried to stab Vallivero in the chest “to make sure that

APPENDIX A

he was gone.” The knife would not penetrate Vallivero’s chest, so

appellant stabbed him in the neck.

After placing Vallivero’s body in the bathtub, appellant

drank Vallivero’s beer and attempted to clean the house. He also

considered fleeing, but ultimately called Caves and told her what

had happened.

Appellant believed that he had to defend himself because

Vallivero “kept punching” him, but acknowledged that Vallivero

had struck him only once or twice. Appellant felt that his

conduct was due to feelings of frustration that “went way

overboard” and added that if he could “take it back [he] would.”

DISCUSSION

Miranda Motion

Appellant contends the trial court erred in denying his

motion to exclude the statements he made at the hospital and

sheriff’s station on the ground they were obtained in violation of

Miranda. We are not persuaded.

Miranda provides that a person questioned by law

enforcement after being “taken into custody” must first be

warned that he or she has the right to remain silent, that any

statements that he or she makes may be used against the person,

and that he or she has a right to the presence of retained or

appointed counsel. (Miranda, supra, 384 U.S. at p. 444.) For the

Miranda rule to apply, there must be an interrogation by the

police while the suspect is in police custody. (Id. at p. 478.)

Whether a person is in custody “depends on the objective

circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being

questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323

[128 L.Ed.2d 293].) “The question whether [the] defendant was

APPENDIX A

in custody for Miranda purposes is a mixed question of law and

fact.” (People v. Ochoa (1998) 19 Cal.4th 353, 401.) “[A]n

appellate court must ‘apply a deferential substantial evidence

standard’ [citation] to the trial court’s factual findings regarding

the circumstances surrounding the interrogation, and it must

independently decide whether, given those circumstances, ‘a

reasonable person in [the] defendant’s position would have felt

free to end the questioning and leave’ [citation].” (People v.

Leonard (2007) 40 Cal.4th 1370, 1400.)

“To determine whether an interrogation is custodial we

consider a number of circumstances, including: ‘whether contact

with law enforcement was initiated by the police or the person

interrogated, and if by the police, whether the person voluntarily

agreed to an interview; whether the express purpose of the

interview was to question the person as a witness or a suspect;

where the interview took place; whether police informed the

person that he or she was under arrest or in custody; whether

they informed the person that he or she was free to terminate the

interview and leave at any time and/or whether the person’s

conduct indicated an awareness of such freedom; whether there

were restrictions on the person’s freedom of movement during the

interview; how long the interrogation lasted; how many police

officers participated; whether they dominated and controlled the

course of the interrogation; whether they manifested a belief that

the person was culpable and they had evidence to prove it;

whether the police were aggressive, confrontational, and/or

accusatory; whether the police used interrogation techniques to

pressure the suspect; and whether the person was arrested at the

end of the interrogation.’” (People v. Torres (2018) 25 Cal.App.5th

162, 172-173.)

APPENDIX A

At the hearing on appellant’s suppression motion, Deputy

Hall testified that appellant was subjected to a patdown search

for the deputies’ safety when they first encountered him at

Caves’s house. Appellant was never handcuffed and Deputy Hall

never asked him any questions about Vallivero’s killing. Deputy

Hall rode with appellant in the ambulance to the hospital to

ensure the paramedics’ safety while Deputy Phillips followed in

the patrol car.

Detective David Marquez arrived at the hospital and

introduced himself to appellant as he lay in a bed in the

emergency room. Detective Marquez asked appellant if he

needed anything and told him he would speak to him after he

was treated.

Detective Nathan Paul subsequently arrived and

introduced himself to appellant. Detective Paul told appellant he

was there to find out what had happened and asked if appellant

was willing to accompany him to the sheriff’s station to talk.

Appellant said “okay” then added, “I don’t know my rights. . . . I

defended myself.” Detective Paul responded “you’re not under

arrest. If you defended yourself, that’s what I want to hear

about.” Appellant replied: “My mom’s working on an attorney

. . . and [she] told me not to talk to anyone cause I could

incriminate myself . . . . I don’t know my rights, so um, I was in a

fight and I defended myself and – and it got really bad and then I

didn’t know what to do after that point. I tried to clean up the

mess.” Appellant proceeded to provide a detailed account of what

had happened. At one point during the interview, appellant was

allowed to use the bathroom.

After appellant had been treated, Detective Paul asked if

he was still willing to accompany him to the sheriff’s station for

APPENDIX A

further questioning. Appellant asked if he could smoke a

cigarette after they arrived at the sheriff’s station and the

detective replied, “When we get there we’ll let you . . . stand

outside and . . . smoke as many as you need.” Appellant then

asked, “I know you’ve probably gotta book me, right?” The

detective replied in the negative and told appellant he was not

being handcuffed and was a “free walking man.”

After they arrived at the sheriff’s station, appellant was

allowed to smoke a cigarette outside and use a restroom without

any supervision. Before conducting the interview, Detective Paul

confirmed with appellant that he was there voluntarily and

reiterated he was not under arrest. During the interview,

appellant took at least three cigarette breaks and a bathroom

break. Near the end of the interview, appellant was told he was

being detained for killing Vallivero.

In denying appellant’s suppression motion, the court found

that appellant had voluntarily agreed to be interviewed; that

there was no custodial interrogation because a reasonable person

in appellant’s position would have felt free to terminate the

interview until the point he was told he was being detained; and

that appellant had never unequivocally indicated that he wanted

an attorney. The court further found that law enforcement had

not dominated or controlled the course of the interrogation and

that appellant had “set the pace” of the interview.

The court did not err in denying appellant’s motion. At

both the hospital and the sheriff’s station, appellant was free of

physical restraints and was advised he was not under arrest and

was free to leave. Moreover, no weapons were displayed and

there is nothing to indicate that the deputies and detectives who

spoke to him were aggressive or accusatory or employed special

APPENDIX A

techniques to pressure him. On the contrary, every effort was

made to ensure that appellant was comfortable and that his

needs were accommodated. The court thus correctly found, under

the totality of the circumstances, that appellant’s statements at

the hospital and the sheriff’s station were not the result of a

custodial interrogation. (People v. Leonard, supra, 40 Cal.4th at

p. 1400.) The cases appellant cites in support of his claim are

plainly inapposite.3

To the extent appellant claims that his statements were

involuntary because the detectives exploited his mental illness

and unduly prolonged his interview at the sheriff’s station, those

were not raised below and are thus forfeited. In any event,

appellant fails to establish that the detectives who interviewed

him engaged in coercive conduct. (See People v. Bradford (1997)

14 Cal.4th 1005, 1041 [recognizing that “[c]oercive police activity

is a necessary predicate” to a finding that a confession was

involuntary].) Moreover, the identified circumstances that

allegedly rendered appellant’s statements involuntary took place

at the sheriff’s station. Because appellant had already provided a

detailed account of the incident while he was at the hospital, any

error in admitting the statements he subsequently made at the

sheriff’s station was harmless beyond a reasonable doubt.

(Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705];

People v. Case (2018) 5 Cal.5th 1, 22 [Miranda violations subject

to harmless error standard of review set forth in Chapman].)

3 Appellant also fails to inform us that one of the cases

upon which he relies, People v. Boyer (1989) 48 Cal.3d 247, has

been disapproved to the extent it “may be read to suggest that an

officer’s subjective focus of suspicion is an independently relevant

factor in establishing custody for the purposes of Miranda . . . .”

(People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

APPENDIX A

Sufficiency of the Evidence

Appellant claims that his murder conviction must be

reversed because the evidence is insufficient to prove he killed

Vallivero with premeditation and deliberation. In reviewing this

claim, we “must review the whole record in the light most

favorable to the judgment to determine whether it contains

substantial evidence—i.e., evidence that is credible and of solid

value—from which a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt.” (People v. Nguyen

(2015) 61 Cal.4th 1015, 1054-1055, internal quotation marks

omitted.) We “presume in support of the judgment the existence

of every fact the jury could reasonably have deduced from the

evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “A

reversal for insufficient evidence ‘is unwarranted unless it

appears “that upon no hypothesis whatever is there sufficient

substantial evidence to support’” the jury’s verdict.” (Ibid.)

The “mental state [for first-degree murder] is uniquely

subjective and personal. It requires more than a showing of

intent to kill; the killer must act deliberately, carefully weighing

the considerations for and against a choice to kill before he or she

completes the acts that caused the death.” (People v. Chiu (2014)

59 Cal.4th 155, 166.) The process of premeditation and

deliberation does not require any extended period of time.

(People v. Watkins (2012) 55 Cal.4th 999, 1026.) The test is one of

the extent of reflection rather than the duration of time. (Ibid.)

Our Supreme Court has identified three categories of

evidence relevant to establishing premeditation and deliberation.

(People v. Anderson (1968) 70 Cal.2d 15, 26-27; People v. Brooks

(2017) 3 Cal.5th 1, 58-59; People v. Houston (2012) 54 Cal.4th

1186, 1216.) The categories include events occurring before the

APPENDIX A

killing that indicate planning, motive to kill, and manner of

killing that reflects a preconceived design to kill. (Anderson, at

pp. 26-27.) The factors are neither exclusive nor invariably

determinative. (Brooks, at p. 59; Houston, at p. 1216.) Evidence

of each category is not required to affirm a judgment of first

degree murder. (People v. Mejia (2012) 211 Cal.App.4th 586,

605.) The factors are merely a guide in determining whether the

evidence supports an inference that the killing occurred as a

result of preexisting reflection rather than a rash impulse.

(Brooks, at p. 59.)

Sufficient evidence supports appellant’s conviction of

attempted premeditated and deliberate murder. Appellant’s

arguments to the contrary fail to acknowledge the standard of

review, which compels us to view the evidence in the light most

favorable to the judgment. (People v. Nguyen, supra, 61 Cal.4th

at pp. 1054-1055.)

Prior to the killing, appellant armed himself with a rock.

After Vallivero allegedly punched appellant, appellant hit him on

the head with the rock and proceeded to break a beer bottle over

his head, causing him to fall on the couch. Appellant then armed

himself with a baseball bat and repeatedly hit Vallivero in the

head as he lay motionless on the ground. To make sure Vallivero

was dead, appellant retrieved a knife and stabbed him in the

neck. The circumstances and manner of the killing amply

support the jury’s findings of premeditation and deliberation.

(People v. Anderson, supra, 70 Cal.2d at pp. 26-27; see also People

v. Perez (1992) 2 Cal.4th 1117, 1128 [recognizing that defendant’s

use of a second knife to inflict post mortem wounds, when

considered in conjunction with the manner of killing, “could

easily have led the jury to infer premeditation and

APPENDIX A

deliberation”].) Appellant also expressed a motive for the killing

by acknowledging he was angry about being evicted, was “sick of

[Vallivero’s] shit,” and wanted him “gone.” Appellant’s claim of

insufficient evidence thus fails.

Evidence of Vallivero’s Drug Use

Appellant also contends the court abused its discretion and

violated his due process rights by excluding evidence of

Vallivero’s drug use. We disagree.

Only relevant evidence is admissible. (Evid. Code, § 350.)

Evidence is relevant if it has “any tendency in reason to prove or

disprove any disputed fact that is of consequence to the

determination of the action.” (Evid. Code, § 210.) A trial court

has discretion to exclude relevant evidence when its prejudicial

effect substantially outweighs its probative value. (Evid. Code,

§ 352.) Evidentiary rulings are reviewed for abuse of discretion,

and a court’s decision will be upheld unless it exceeds the bounds

of reason. (People v. Williams (1997) 16 Cal.4th 153, 196-197; see

also People v. Stitely (2005) 35 Cal.4th 514, 550.)

When appellant was interviewed, he stated that Vallivero

used methamphetamine and was “drinking and on meth” when

the crime occurred. Prior to trial, the prosecution moved in

limine to exclude any reference to Vallivero’s methamphetamine

and cocaine use as irrelevant and substantially more prejudicial

than probative under Evidence Code section 352. The court

granted the motion after finding that the evidence was both

irrelevant and unduly prejudicial because no methamphetamine,

cocaine, or other illicit drugs were found in Vallivero’s system

after his death. Later in the proceedings, defense counsel moved

to admit Vallivero’s medical records showing that Vallivero had

admitted using methamphetamine and had been diagnosed as a

APPENDIX A

chronic user of the drug. The court denied the motion and

reiterated its prior ruling that evidence of Vallivero’s

methamphetamine use was unduly prejudicial under Evidence

Code section 352.

The court did not err. Appellant contends that “his

statements about how he personally experienced Vallivero to act

unreasonably and violently when Vallivero was using or high on

meth were relevant to show the reasonableness of appellant’s fear

and resulting actions.” It is undisputed, however, that Vallivero

was not under the influence of methamphetamine or any other

illicit drug when he was killed. Moreover, it is not reasonably

probable that appellant would have achieved a more favorable

result had the challenged evidence been admitted. As the People

aptly put it, “appellant’s alleged belief that Vallivero was under

the influence of methamphetamine, as opposed to just alcohol,

had minimal or no probative value to any claim of self-defense.”

Accordingly, any error in excluding evidence of Vallivero’s drug

use was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836;

People v. Mullens (2004) 119 Cal.App.4th 648, 659 [error in

excluding evidence under Evidence Code section 352 reviewed

under the harmless error standard set forth in Watson].)

Mutual Combat/Initial Aggressor (CALCRIM No. 3471)

The trial court instructed the jury on the doctrines of selfdefense (CALCRIM No. 505) and imperfect self-defense

(CALCRIM No. 571). Over appellant’s objection, the jury was

also instructed on the limitations of the right of self-defense to

one who engaged in mutual combat or acted as the initial

aggressor, as provided in CALCRIM No. 3471.4 Appellant

4 The jury was instructed as follows:

“A person who

engages in mutual combat or who starts a fight has a right to

APPENDIX A

contends the court committed prejudicial error and violated his

federal constitutional rights by giving the mutual combat

instruction. This contention lacks merit.

“It is error to give an instruction which, while correctly

stating a principle of law, has no application to the facts of the

case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Error in

giving an inapplicable instruction is one of state law subject to

the Watson test for prejudice, under which reversal is required if

it is reasonably probable the defendant would have obtained a

more favorable result in the absence of the error. (Id. at p. 1130;

Watson, supra, 46 Cal.2d at p. 836.)

The court did not err in giving the challenged instruction.

There was evidence from which the jury could have found that

appellant not only engaged in mutual combat with Vallivero, but

also acted as the initial aggressor. Although appellant offers his

self-defense only if: [¶] 1. He actually and in good faith tried to

stop fighting; [¶] 2. He indicated, by word or by conduct, to his

opponent, in a way that a reasonable person would understand,

that he wanted to stop fighting and that he had stopped fighting;

[¶] AND [¶] 3. He gave his opponent a chance to stop fighting.

[¶] If the defendant meets these requirements, he then had a

right to self-defense if the opponent continued to fight. [¶]

However, 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, or give the opponent a chance to stop fighting.

[¶] A fight is mutual combat when it began or continued by

mutual consent or agreement. That agreement may be expressly

stated or implied and must occur before the claim of self-defense

arose.” (Italics omitted.)

APPENDIX A

self-serving assertion that Vallivero initiated the incident by

punching him, the jury was entitled to reject that assertion.

According to Vallivero, appellant had been the initial aggressor of

a prior fight between the two regarding the cleanliness of the

kitchen. Moreover, appellant admitted that he approached

Vallivero with a rock in his hand because he “knew” the two of

them were going to fight. The jury could thus reasonably find

that appellant intended to fight with Vallivero before Vallivero

allegedly punched him.

Even if the instruction should not have been given, the

error would be harmless. The jury was separately instructed

pursuant to CALCRIM No. 3474 that “[t]he right to use force in

self-defense continues only as long as the danger exists or

reasonably appears to exist. When the attacker withdraws or no

longer appears capable of inflicting any injury, then the right to

use force ends.” Appellant continued to use deadly force against

Vallivero well after he had rendered Vallivero incapable of

inflicting any injury upon him. No reasonable juror thus would

have found that appellant killed Vallivero in self-defense or

imperfect self-defense. (People v. Gleghorn (1987) 193 Cal.App.3d

196, 201-202.)

The jury was also instructed pursuant to CALCRIM No.

200 that “[s]ome of the[] instructions may not apply, depending

on your findings about the facts of the case.” Because of this

instruction, “the jury is presumed to disregard an instruction if

the jury finds the evidence does not support its application.”

(People v. Frandsen (2011) 196 Cal.App.4th 266, 278; People v.

Olguin (1994) 31 Cal.App.4th 1355, 1381.) Because appellant

does not rebut this presumption or otherwise demonstrate a

reasonable probability that he would have achieved a more

APPENDIX A

favorable result had the challenged instruction not been given,

his claim fails. (People v. Guiton, supra, 4 Cal.4th at p. 1130.)

Prosecutorial Misconduct; Ineffective Assistance of Counsel

For the first time on appeal, appellant contends the

prosecutor committed misconduct by misstating the law eight

times in his closing argument. Anticipating our conclusion that

these claims are forfeited because defense counsel did not object

to any of the alleged misstatements, appellant alternatively

contends that counsel’s failure to object amounts to ineffective

assistance.

Prosecutorial misconduct exists “‘under state law only if it

involves “‘the use of deceptive or reprehensible methods to

attempt to persuade either the court or the jury.’”’” (People v.

Earp (1999) 20 Cal.4th 826, 858.) In more extreme cases, a

defendant’s federal due process rights are violated when a

prosecutor’s improper remarks “‘“‘infect[] the trial with

unfairness,’”’” making it fundamentally unfair. (Ibid.) “‘“To

preserve a claim of prosecutorial misconduct for appeal, a

defendant must make a timely and specific objection and ask the

trial court to admonish the jury to disregard the improper

argument.”’ [Citation.] A court will excuse a defendant’s failure

to object only if an objection would have been futile or if an

admonition would not have cured the harm caused by the

misconduct. [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269,

349.)

Here, defense counsel did not object to the prosecutor’s

alleged misstatements and made no requests that the jury be

admonished. Moreover, appellant has not established that

objections or admonition would have been futile. Because the

alleged misconduct consisted of purported misstatements of law,

APPENDIX A

they could have easily been corrected by the trial court with an

admonition. (People v. Centeno (2014) 60 Cal.4th 659, 674

(Centeno).) Appellant’s claims of prosecutorial misconduct are

thus forfeited. (Ibid; People v. Jackson, supra, 1 Cal.5th at

p. 349.)

We also reject appellant’s claims that trial counsel provided

ineffective assistance by failing to object. “A party claiming

ineffective assistance must first demonstrate that his counsel’s

performance was deficient. [Citations.] In reviewing counsel’s

performance, we ‘exercise deferential scrutiny.’ [Citations.] To

that end, it is up to [appellant] to show his counsel’s performance

was deficient because his ‘“representation fell below an objective

standard of reasonableness . . . under prevailing professional

norms.”’ [Citation.] Second, even after a party demonstrates

ineffective assistance, he must also show he has been prejudiced,

i.e., ‘that there is a reasonable probability that, but for his

counsel’s unprofessional errors, the result of the proceeding

would have been different.’ [Citation.] If [appellant’s] showing as

to either component is insufficient, the claim fails. [Citation.]

Accordingly, if he cannot show prejudice, we may reject his claim

of ineffective assistance, and need not address the adequacy of

trial counsel’s performance. [Citations.]” (People v. King (2010)

183 Cal.App.4th 1281, 1298; Strickland v. Washington (1984) 466

U.S. 668, 688, 694 [80 L.Ed.2d 674].)

Moreover, “[t]he appellate record . . . rarely shows that the

failure to object was the result of counsel’s incompetence;

generally, such claims are more appropriately litigated on habeas

corpus, which allows for an evidentiary hearing where the

reasons for defense counsel’s actions or omissions can be

explored.” (People v. Lopez (2008) 42 Cal.4th 960, 966.) “‘[T]he

APPENDIX A

decision facing counsel in the midst of trial over whether to object

to comments made by the prosecutor in closing argument is a

highly tactical one’ [citations], and ‘a mere failure to object to

evidence or argument seldom establishes counsel’s incompetence’

[citation].” (Centeno, supra, 60 Cal.4th at p. 675.)

Appellant contends that during closing argument the

prosecutor misstated the law by asserting (1) that “if there is

motive, there’s first degree murder”; (2) that appellant’s efforts to

clean up the crime scene after he killed Vallivero “means [that]

he in his own mind knows he is guilty of murder”; (3) that

appellant could not be found to have acted in self-defense unless

he “reasonably believed he was in imminent danger of being

killed”; (4) that the provocation element of voluntary

manslaughter based on sudden quarrel or heat of passion was not

established by evidence that Vallivero had previously threatened

appellant, because two neighbors who allegedly heard Vallivero

make such threats were not concerned enough to call the police;

(5) that “if you find there is no imperfect self-defense, then it’s

murder”; (6) that the extent of reflection required for a finding of

premeditation is similar to the extent of reflection a driver

engages in when approaching a yellow traffic signal; (7) that for

appellant’s claim of self-defense to be valid, Vallivero “better

have” hit appellant so hard that he “annihilated his jaw”; and (8)

that reasonable doubt means “[i]f what the People are saying is

reasonable and [the] defense says it’s possible but unreasonable,

that’s a guilty verdict.”

Even assuming that defense counsel provided deficient

performance by failing to object to these arguments, appellant

was not prejudiced because the jury was instructed that counsel’s

arguments were not evidence (CALCRIM No. 222) and that the

APPENDIX A

jury was to follow the instructions given by the court even if

counsel’s comments conflicted with those instructions (CALCRIM

No. 200). The jury was also properly instructed on reasonable

doubt (CALCRIM Nos. 103, 220), motive (CALCRIM No. 370),

hiding evidence as consciousness of guilt (CALCRIM No. 371),

justifiable homicide based on self-defense (CALCRIM No. 505),

provocation (CALCRIM No. 522), and voluntary manslaughter

based on sudden quarrel or heat of passion (CALCRIM No. 570)

and imperfect self-defense (CALCRIM No. 571). Absent evidence

to the contrary, we presume the jury followed these instructions.

(People v. Johnson (2015) 61 Cal.4th 734, 770; see also People v.

Clair (1992) 2 Cal.4th 629, 663, fn. 8 [“We presume that jurors

treat the court’s instructions as a statement of the law by a judge,

and the prosecutor’s comments as words spoken by an

advocate”].) Appellant offers no such evidence here, so his claim

of ineffective assistance of counsel fails.

Dueñas

For the first time on appeal, appellant contends, in reliance

on Dueñas, supra, 30 Cal.App.5th 1157, that the trial court erred

by ordering him to pay a $30 criminal conviction assessment

(Gov. Code, § 70373) and a $40 court operations assessment

(§ 1465.8, subd. (a)(1)) without first determining his ability to pay

those assessments. In Dueñas, the court held that imposing

these assessments without a hearing on the defendant’s ability to

pay violates due process of law under both the federal and state

constitutions. (Dueñas, at p. 1168.) Neither statute expressly

prohibits the court from considering the defendant’s ability to

pay. By contrast, section 1202.4, subdivisions (b)(1) and (c)

expressly prohibit the trial court from considering a defendant’s

ability to pay a restitution fine unless the fine exceeds $300.

APPENDIX A

If the court imposes a restitution fine above the $300

statutory minimum, it may consider the defendant’s ability to

pay. (§ 1202.4, subd. (c).) Appellant was ordered to pay a $7,800

restitution fine, so he had the opportunity to bring to the court’s

attention any factors relevant to his ability to pay. (People v.

Avila (2009) 46 Cal.4th 680, 729.) He did not do so, so he

forfeited any challenges to the restitution fine. (Ibid.) Appellant

likewise did not object to the two assessments he now challenges.

We need not decide whether he forfeited his claims because under

the circumstances present here, where appellant did not object to

the $7,800 restitution fine, “he surely would not complain on

similar grounds regarding an additional” $70 in assessments.

(People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.)

Cumulative Error

Appellant contends that the cumulative effect of the alleged

errors deprived him of his due process rights and resulted in the

denial of a fair trial. We reject this contention because there is

no prejudicial error to cumulate. (People v. Koontz (2002) 27

Cal.4th 1041, 1094.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.

APPENDIX A

Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Jean Ballantine, under appointment by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters,

Senior Assistant Attorney General, Scott A. Taryle and Viet H.

Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

APPENDIX A

Filed 3/25/20 P. v. Giese CA2/6

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 SIX

THE PEOPLE,

Plaintiff and Respondent,

CHARLES CHAD GIESE,

2d Crim. No. B292208

(Super. Ct. No. 15F-10827)

(San Luis Obispo County)

ORDER MODIFYING OPINION

AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

Defendant and Appellant.

THE COURT:

It is ordered that the opinion filed on February 26, 2020, be

modified as follows:

On page 11, the first sentence of the first full

paragraph beginning “Sufficient evidence” is deleted and replaced

with the following:

APPENDIX A

Sufficient evidence supports appellant’s conviction of

willful, premeditated and deliberate murder.

On page 19, the last sentence of the first partial

paragraph beginning “Appellant offers no such evidence” is

deleted and replaced with the following:

Moreover, the prosecutor’s allegedly improper arguments

were brief and the evidence of appellant’s guilt was

overwhelming. (See, e.g., People v. Centeno (2014) 60 Cal.4th

659, 676-677 [applying harmless error analysis to claim that trial

counsel provided ineffective assistance by failing to preserve clam

that prosecutor repeatedly misstated the law on reasonable doubt

during rebuttal].) Appellant’s claims of ineffective assistance of

counsel thus fail.

This modification does not change the judgment.

Appellant’s petition for rehearing is denied.

APPENDIX A

Filed 2/26/20 P. v. Giese CA2/6 (unmodified opinion)