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

Supreme Court briefSep 21, 2020

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

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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)