People v. Barragan CA2/1

Filed 10/28/26 P. v. Barragan CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE THE PEOPLE, B343278 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA503701) v. MANAHIM BARRAGAN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Robert C. Vanderet, Judge. Affirmed. Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent. __________________________________  In the proceedings below, a jury convicted appellant Manahim Barragan of several crimes, including the murder of Daniel Hernandez.1 The court sentenced him to sixty years to life for the murder conviction and ordered the sentences for the other crimes to run concurrently. During voir dire, over the defense’s objection, the court excused a prospective juror for undue hardship. Separately, defense counsel made a prosecutorial misconduct objection when, as part of his closing argument, the prosecutor claimed defense counsel had asked Barragan “entirely leading questions” and “basically testified.” The court overruled the objection and subsequently denied a motion for mistrial made on the grounds that the remark “unduly prejudiced” Barragan and “result[ed] in a denial of due process.” On appeal, Barragan argues the trial court erred in not finding the prosecutor’s remark to be prosecutorial misconduct, not granting the motion for mistrial, and excusing the prospective juror. We need not decide whether the court erred in finding the remark was not prosecutorial misconduct because even if it did err, we conclude the purported error was not prejudicial. We further conclude the court did not abuse its discretion in denying the mistrial motion or excusing the prospective juror. We therefore affirm. 1 Hernandez’s “legal name” was Noe Uscanga. Because the parties mostly referred to him as Hernandez both at trial and on appeal, we do the same. 2  FACTUAL AND PROCEDURAL BACKGROUND A. Barragan Is Charged With Murder After a March 2024 preliminary hearing in which Barragan was held to answer, an information charged him with the following acts, all of which occurred in March 2022: murdering Daniel Hernandez with a firearm (count 1), being a felon in possession of a firearm (counts 2 through 5), unlawful possession of ammunition (count 6), making criminal threats (count 8), and fleeing a pursuing peace officer while driving recklessly (count 9).2 Barragan pled not guilty. B. Voir Dire; Prospective Juror No. 1 Is Excused Jury selection began on October 18, 2024. The clerk swore in all prospective jurors, asking if each of them “understand and agree that you will accurately and truthfully answer under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution?” The prospective jurors responded affirmatively. 1. The Court Initially Declines to Excuse Prospective Juror No. 1 On October 22, 2024, immediately after the People and Barragan accepted the jury panel as “currently constituted,” the 2 The information did not include a count 7 alleged against Barragan. According to the People, “[a] count 7 charge for possession of a firearm by a felon ([Pen. Code,] § 29800, subd. (a)(1)) was listed against codefendant [Efrain] Vasquez. Vasquez reached a plea agreement prior to the preliminary hearing.” 3 prosecutor stated: “Your Honor, I would just -- before we swear them in, I don’t think we did hardships.” The court agreed and asked the prospective jurors whether it would be a hardship for any of them to serve as a juror in the trial. Prospective Juror No. 1 and two others raised their hand. Outside the presence of the other jurors, Prospective Juror No. 1 explained that he was “between jobs” but had a job interview between 3:00 p.m. and 5:00 p.m. the next day. Upon questioning from the prosecutor, the prospective juror explained it was a telephonic interview, that he would not get the job if he was required to be absent for the next two weeks, that he had stopped working on October 4 and had “yet” to collect unemployment, and that if he did not “get something soon,” he would be “stuck in a rut.” When the prosecutor asked whether that would affect his “household’s ability to make payments and stuff like that,” the prospective juror responded, “absolutely.” Defense counsel asked no questions. After asking the prospective juror to return to his seat, the court asked the parties if they would stipulate to excuse the prospective juror from service. The prosecutor agreed but defense counsel did not, arguing the prospective juror “could start collecting unemployment” and pointing out the prospective juror was “doing a job interview” and “[t]here is no guarantee he’s going to get that job.” The court proposed that it could “accommodate his job interview” and agreed that “he may not get the job though.” The court added that “[w]e’re going to pick enough alternates” and “[w]e don’t have that many minority defendants [sic] and I’m sensitive to that.” The prosecutor responded, “I think you meant minority juror. But he’s not of the same ethnic group as the defendant.” The court agreed. 4  After hearing the other prospective jurors’ statements of hardship, the prosecutor acknowledged they already had “an accepted panel” but asked if the court could “allow challenges to be exercised” because “[s]ome of the things that have been evoked as a result of these hardship conversations may have grounds for prior preemptory challenges that we were unaware of because we thought we were going to get into hardships.” The court denied the request. The court then spoke again with Prospective Juror No. 1 and asked, “If I let you keep your phone on and we broke if the phone rang, would that be okay?” The prospective juror clarified he would need to “take a break to answer that call.” The court responded, “I mean you’d have to take a break no matter where you were.” The prospective juror stated, “Well, I would be home, naturally, but being here -- I guess so.” The court ruled, “Okay. Well, that’s what we’re going to do. Okay?” The prospective juror replied, “Okay.” 2. The Court Changes Its Mind The next day, before the prospective jurors were sworn in and outside their presence, the court “excuse[d the] prospective juror seated in seat 1 due to the juror[’]s personal hardship, over the defense[’s] objection.” Specifically, the court stated: “I’ve had further opportunity to reflect on the question of whether [the] juror seated in seat No. 1 should be excused on grounds of personal hardship, and I’ve concluded that he should be. I want to state on -- for the record my reasons in reaching this conclusion. “Juror No. 1 has been, for some time, unemployed. He recently was notified of the opportunity to interview for jobs by telephone later today. When he advised us of that fact and asked 5 to be excused, I suggested that he could perhaps take the call in the hall while sitting in the jury box. He was not happy with that suggestion. “Upon further reflection, I think his reluctance is justified. It is unquestionable, I believe, that he would be better prepared for a successful interview if he could take that call in the comfortable and familiar surroundings of his own home rather than in an institutional hallway. “The juror in question is Black, and while it will certainly be desirable to have further diversity on the panel, I will note that the defendant is not of the same race as the juror. At least does not appear to the court to be. “Given the circumstances of the juror’s situation, there is little doubt that if the juror were White, we would excuse him on hardship grounds. To not do so because he is Black would, in effect, be punishing him because he’s African-American. That would be contrary to all norms of racial equality and nondiscrimination that we strive to achieve in our system of justice.” Defense counsel objected to the ruling, arguing it was “clearly speculative that [the juror] would be hampered in any way or be a hardship on him, particularly since the court is allowing him to take the call if he, in fact, receives it.” Defense counsel argued the juror was “not in danger of being homeless” and that he was either collecting unemployment or would be collecting unemployment. Although the panel had not yet been sworn in, counsel contended he “agreed to that panel of jurors based on the composition of it,” and asserted that if the court excused the juror, Barragan “will be denied a fair trial.” The court overruled the objection, asked the prospective jurors to be 6 brought in, and continued with voir dire. A panel of 12 jurors and three alternates were eventually selected and sworn in. C. Testimony Eighteen witnesses testified over seven days. Below, we summarize the testimony of sixteen witnesses relevant to this appeal.3 1.Jazmine Quiroz Jazmine testified that Barragan was her uncle.4 On March 5, 2022, she was living at her grandparents’ house in Los Angeles. The house was divided into the “front house” and the “back house”; Jazmine slept in the back house. That morning, she woke up before 7:00 a.m. After she got out of bed, she left the back house and approached the back door of the front house to get ready for a special event. As she did so, she saw a man and woman walking out of that door; Jazmine let them pass and then went into the front house. The man was bald and had facial tattoos.5 After Jazmine entered the house, she 3 The testimony of one witness (Daniel Parra) is omitted as repetitive, and the testimony of the second witness (Josue Perez) is omitted because it relates to a charge on which the jury acquitted Barragan. 4 Except for appellant Barragan, when a witness shares a surname with another witness or party, we use their first name to avoid confusion. 5 When the prosecutor showed Jazmine a picture of an individual with facial tattoos including two lines, Jazmine stated she did not remember if that was the person she saw walking out of the house. However, she admitted that, at the preliminary hearing, when her “memory was maybe a little bit better,” she (Fn. is continued on the next page.) 7 went to the laundry room to grab some shoes and then went into the kitchen. At that point, she heard three loud noises that sounded like fireworks. Jazmine “froze” for approximately one minute—she did not know what the sounds were—and then she called her aunt, who was sleeping in a room next to the kitchen. The phone rang, but no one answered. The call was placed at 7:07 a.m. Jazmine proceeded to the bathroom to change her clothes. Because she was unsure she had her dress on right, she went into the living room, where her brother Matthew and his girlfriend slept, to ask him for help. When Jazmine saw him, he seemed “protective,” and was holding his girlfriend “in a protective way.” After her brother helped her with the dress, Barragan came into the living room and got into an argument with Matthew. Jazmine testified that her brother “was saying something along the lines of, why the fuck would you unload a clip while my family’s in the house”; Jazmine did not recall Barragan’s response. After the argument, Barragan asked Jazmine if she had heard or seen anything. Jazmine responded she had not seen anything, but she had heard something. Barragan asked again “in a more assertive tone” whether she had heard something, which Jazmine understood as Barragan wanting her to say she had not. had positively identified that person as the person she saw on March 5, 2022. During the defense case, Barragan identified the individual “with the two dots and two lines on his forehead” as Efrain Vasquez. 8  2. Christopher Orosco Orosco testified he was a “gang detective” assigned to the “East Los Angeles Sheriff’s station.” He testified as an expert on the Choppers 12 gang.6 In gang culture, including with Choppers 12, the word “rat” means “snitch” and is the “ultimate sign of disrespect, pretty much labeling whatever gang member that is, as somebody who has snitched, ratted on another gang member, which is pretty much the ultimate offense in gang culture.” The penalty for being a rat “could range from getting severely beaten by the gang, by members of that gang that you ratted on, which would be typically your own gang, or murdered.” 3. Aniceto Barragan Aniceto testified he was Barragan’s father. In the morning of March 5, 2022, he was living in his Los Angeles home and believed he heard five gunshots. Sometime thereafter, “the sheriff” knocked on the door to the house and, after he left, Barragan entered Aniceto’s room, about two hours after Aniceto heard the gunshots. Barragan asked Aniceto to pray for him and made a statement that Hernandez “was a rat.” Aniceto also identified a car belonging to Hernandez that was parked in front of Aniceto’s home from the night of March 4, 2022, until March 5, 2022. 4. Manantial Arellano Arellano testified she was Barragan’s sister and was living at her parents’ Los Angeles home on March 5, 2022. That 6 The parties stipulated that between March 5 and 7, 2022, Barragan, Vasquez, and Hernandez were all members of the Choppers 12 gang. 9 morning, she was sleeping in her parents’ bedroom when she heard multiple noises that she initially thought were fireworks.7 The noises woke her, and she spoke with her father about them, then went back to sleep. She awoke again when Barragan walked into the room and spoke to their father. Arellano testified that Barragan “was basically saying, like, to pray for him because he had to do what he had to do because Danny was a rat.”8 Arellano acknowledged she received a call from Jazmine at 7:07 a.m. immediately after the gunshots but did not answer it. 5. Matthew Quiroz9 Matthew testified Barragan was his uncle. On the morning of March 5, 2022, he was sleeping in the living room of his grandparents’ house with his girlfriend, when he was awoken by the sound of gunshots. He rolled over onto his girlfriend, who was pregnant, “to be sure that nothing was going to happen to my baby.” He did not look at a clock or watch but estimated he awoke sometime between 6:00 a.m. and 7:00 a.m. He also heard footsteps and the back door slamming. Matthew testified he saw 7 Arrellano testified she was in her parents’ bedroom because her mother was out of town, and her father suffered from anxiety and panic attacks during the night, so she did not want to leave him alone in the room. 8 After Arellano clarified the conversation took place in Spanish, she attempted to recreate the conversation in Spanish; when she did so, a Spanish interpreter translated the sentence Barragan spoke as “I had to do it because it was, he ratted [sic].” Arellano admitted she did not remember if these were Barragan’s exact words. 9 The court permitted Barragan to call Matthew out of order to accommodate Matthew’s schedule. 10 Vasquez and a woman running out of the house after he heard the gunshots. He did not see Jazmine enter the house that morning.10 He denied asking Barragan, “Why would you unload a fucking clip with your family in the house?” Matthew also testified that while he did not see Hernandez the night of March 4, 2022, he saw Hernandez’s car at the house. 6. Amber Sage Sage testified she was a senior criminalist with the Los Angeles County Sheriff’s Department and performed a variety of DNA tests on evidence in the case. For a DNA sample on Item No. 9.1—a “trigger and guard” from a “semi-auto with Glock frame”—she concluded that there was “a mixture of DNA, assumed to be from three individuals,” one of whom may have been Barragan. She testified the DNA profile was “approximately 33,438 times more likely if it originated from Manahim Barragan and two unknown individuals than if it originated from three unknown individuals.” From this sample, there was also “limited support” for excluding Vasquez and Hernandez, quantified as “five times more likely” that the DNA profile “originated from three unknown individuals than if it originated from Efrain Vasquez and two unknown individuals” and “87 times more likely” that the DNA profile “originated from 10 On cross-examination, the prosecutor played a recording of an interview Matthew had with law enforcement, in which he stated that when he saw Vasquez and a woman leave around 7:00 a.m., “my sister was calling me to go open the back door for her.” Matthew admitted that it was his voice in the clip, that the clip was “part of the interview” that he gave “shortly after the investigation started for the gunshots,” and that he was “being as truthful as [he] could” when he was answering the questions. 11 three unknown individuals than if it originated from [Hernandez] and two unknown individuals.” On Item No. 8.2—a “grip, frame, and the slide” of a “Glock 22, Gen 4, .40 caliber semi-auto”—there appeared to be mixture of DNA from two contributors, one of whom may have been Vasquez. She testified the DNA profile was “750 times more likely if it originated from Efrain Vasquez and an unknown individual than if it originated from two unknown individuals.” There was also limited support for excluding Barragan and Hernandez. 7. Cristina Gonzalez Gonzalez testified she was a “senior criminalist for the L.A. County Sheriff’s Crime Lab.” She testified she took the DNA swabs for Item Nos. 8.2 and 9.1 (about which Sage previously testified). The swabs were placed on a “DNA plate” and sent to Sage. Gonzalez took the swabs from the firearms at the crime lab, meaning prior to her receiving the firearms, someone else had collected them and sent them to her. 8. Jessica Liang Liang testified she was a “forensic identification specialist with the Los Angeles County Sheriff’s crime lab.” Among other things, she recovered cartridge cases and fired bullets from the room in which Hernandez was found. The two cartridge cases found were nine-millimeter cartridge cases. Liang stated that when she arrived at Barragan’s room, “inside the room, there was a cot on the west side of the room. On top of the cot was laying a victim. There was a mattress that was on the east side of the room that had comforters and blankets kind of piled on top of it.” She continued, “There was 12 also a mirror that was a full-length mirror that had been propped up against the west wall adjacent to the decedent’s head. There was also a plastic storage container underneath the window on the north wall.” Liang identified photographs as showing Barragan’s room. Liang also identified pictures of a “plastic drawer container set that was against the north wall” of Barragan’s room, parts of which “have what appear to be holes.” She additionally identified pictures she took of “trajectory rods” which were inserted into these holes, explaining that trajectory rods “are used to determine the trajectory when doing a firearms analysis.” She testified these trajectory rods were placed by her colleague, Aaron Lewis. 9. Aaron Lewis Lewis testified he was a “senior criminalist employed by the County of Los Angeles at the Sheriff’s Department Crime Lab.” His task was “to examine any firearms related evidence, looking for fired cartridge cases, fired bullets, as well as trajectory determination. So if a bullet passes into a certain object, I can determine where the shot originated from.” He stated there were five fired bullets recovered from the room in which Hernandez was found. Lewis also testified the trajectory rods pictured in the exhibits Liang identified were “trajectory rods that I utilized to determine the path of the bullet through those objects,” meaning “the muzzle of the firearm that caused those defects in that plastic shelf had to be along that rod somewhere.” 13  10. Amanda Davis Davis testified she was a “senior criminalist with the Los Angeles County Sheriff’s Department.” Davis test-fired the handgun previously identified as Item No. 9. After doing so, she compared the cartridge casings to those found at the scene and determined the cartridge casings found at the scene were fired from the handgun marked as Item No. 9. She also compared the bullets she test-fired to the bullets found at the scene and determined the bullets found at the scene were fired from the handgun marked as Item No. 9. As for the firearm identified as Item No. 8, Davis did no comparisons because that handgun fired bullets of a different caliber. 11. Edwin Navarette Navarette testified that on March 6, 2022, he was assigned to the East Los Angeles Sheriff’s station. He had been informed of three incidents: “one of them involving a murder, a criminal threats [sic], and a vehicle involving a firearm. And the vehicle description was a black newer-model Dodge Challenger.” On March 7, 2022, he drove by the Carlo Motel while on patrol and saw a black Dodge Challenger. He also saw two individuals walking toward the vehicle; one of them was Barragan.11 Navarette and Barragan made eye contact, and both individuals immediately ran into a motel room. Navarette called for backup, who eventually arrived on the scene. When Navarette later arrested Barragan, his hair was different than when Navarette first saw him. 11 Navarette discovered the second individual was Vasquez after arresting him. 14  12. Ramon Munoz Munoz testified he was a detective sergeant for the Sheriff’s Department on March 7, 2022. He found freshly cut hair in the motel room that Barragan and Vasquez had run into. He also saw two phones that appeared to be “purposefully damaged” and submerged in a bucket of water. In the motel room, there was a small crawlspace leading to an attic. Munoz asked Deputy Stacie Perez—who was “a lot smaller” than Munoz—to look in the attic; Deputy Perez discovered the two handguns about which the other officers had previously testified. When the deputy saw the firearms and relayed to Munoz what she had seen, he passed her some gloves to don before touching the handguns. 13. Kevin Young Young testified he was a deputy medical examiner for Los Angeles County. He asserted Hernandez’s cause of death was “gunshot wounds of the head [sic].” Specifically, Hernandez suffered four gunshot wounds to the right side of his head. He also suffered three gunshot wounds to the right arm. None of the bullets lodged in the body; they were all “through-and-through wounds.” 14. Maria Maciel Maciel testified she worked for the Los Angeles County Sheriff’s Department as a homicide detective and was doing so on March 5, 2022. Maciel took the DNA swab from Barragan that was “provided to the evidence lab that ultimately went to the criminalist that testified earlier in the case.” Maciel and her partner interviewed Barragan on March 8, after his arrest. The prosecutor played a recording of the interview for the jury. 15  During the interview, Barragan claimed that when the shooting occurred, he was “like, three blocks away. Two blocks away with a girl.” However, soon thereafter, he told the interviewing officers that he “wasn’t even at her house yet” and “was barely on my way.” Later, when asked if he was with the girl when he heard gunshots, Barragan said he was and described her reaction. Still later he told the interviewers he was “chillin [sic] [with the girl] outside of, like, in front of her pad” when he heard the gunshots. After hearing the gunshots, he returned home, went “straight to [his] room,” and saw Hernandez “laid out.” Barragan could “smell” that Hernandez was dead. Barragan said, “I didn’t see, like, no blood” but also said he saw blood “where his head was laid at.” Barragan stated he believed a rival gang shot Hernandez. When directly asked whether Vasquez killed Hernandez, Barragan said he did not. He also denied killing Hernandez himself. Barragan stated Vasquez was previously present at the house but, unlike Hernandez, did not spend the night. When one of the interviewers told Barragan that one of the guns found at the hotel where Barragan was arrested “matches the gun that was used to kill Danny,” Barragan explained that “whoever did it, left the gun right there” and he “took it with [him] after.” The other gun found at the motel belonged to Hernandez. However, Barragan also agreed that the people who shot Hernandez “left two guns” in his room. Barragan claimed he lost his phone on March 5. He stated he cut his hair because he “just wanted a new look.” He admitted that on March 6, 2022, the “cops were chasing [him]” in “Danny’s car,” which he had taken from the front of his house. 16  After the recording of the interview concluded, the prosecutor asked Maciel whether Barragan could have heard gunshots from the location of the “pad” of the woman he claimed to be with—Maciel testified he could not have, especially if the gunshots occurred inside a house. 15. Barragan Barragan admitted he “lie[d] all the time,” but claimed he was “not lying right now.” He explained he lied when Detective Maciel interviewed him because “me and my friend made up a story that we can say to not place him there to make sure that he has nothing to do with it, because that’s what we do as a gang. We -- we come through for each other. And since it was my house, he was telling me that there is no way that they’re going to put you for it, and that’s just the story we made up.” He clarified that the “friend” was Vasquez, and that Barragan went along with the story to “protect” Vasquez. Barragan explained that, a few days after Hernandez was released from jail, their gang held a meeting. Some fellow gang members had issues with the fact that Hernandez had attended fire camp while in jail.12 At the meeting, Hernandez explained to his fellow gang members that “he didn’t know any better.” Barragan accepted Hernandez’s explanation and claimed the other gang members also “went with” it, although some “disagreed.” 12 Barragan explained that his gang objected to its members participating in fire camp because general population members of prison—like Hernandez—who attended fire camp were mixed in with those who were in protective custody “for being a snitch.” 17  The night before Hernandez was shot, Barragan claimed Hernandez, Vasquez, Vasquez’s girlfriend, and Barragan were “kicking it” in Barragan’s room, “drinking, smoking, doing everything.” All four slept in Barragan’s room that night. In the room were two guns, including a nine-millimeter that Barragan had carried around with him before; however, Barragan denied the gun was his, claiming “it was all of our guns,” meaning it was a “shared gun.” On the morning of March 5, all four were still in Barragan’s room. Barragan went to the bathroom after he awoke; when he returned to his room, he heard Vasquez and Hernandez arguing about the latter’s participation in fire camp. He saw that both Hernandez and Vasquez “had their guns out.” Vasquez had the nine-millimeter handgun and Hernandez had a .40-caliber handgun. Barragan stopped the argument, asking Vasquez why he was raising the issue when the matter had already been addressed at the meeting. Vasquez and Hernandez both calmed down. Hernandez went to sit down on the bed, and Vasquez “just took into his own hands just to shoot him.” Barragan denied shooting anyone. When asked why he should be believed after he admitted lying during the police interview, Barragan explained: “[Be]cause I’m going against everything I ever believed in. I’m going against our own story that we had made up. I’m going against everything that I’ve always been taught to in a gang”: “not to snitch on each other, not to go against each other.” Barragan admitted he drove Hernandez’s car after the killing, with Vasquez in the passenger seat, and had fled from the police when they tried to pull him over. He also admitted during the chase that he had “passed some stop signs,” “went over the 18 speed of what” he was “supposed to be driving in the street,” and ran through red lights. On cross-examination, after the prosecutor asked Barragan where Vasquez and Hernandez were when arguing, Barragan testified, “Efrain was sitting on one bed and then Danny was sitting on the other bed. So when they got standed up [sic] and I calmed them down, they both just, like, sat down.” When the prosecutor asked, “where did [Hernandez and Vasquez] take their guns out from?” Barragan responded that “Danny had it in his pocket, in his -- his sweater” and “Efrain had it by his waistband.” However, when asked if both parties simultaneously drew their weapons, Barragan stated he “wasn’t there when they did that,” and when he returned to the room, “they were already arguing with each other with their guns out.” When the prosecutor asked Barragan how he knew where their guns were, Barragan responded, “Because I just -- I just knew.”13 16. Martin Flores Flores testified he was a “non-law-enforcement gang expert.” He explained that recently, the California Department 13 We note that, a day after Barragan testified, the court permitted defense counsel to re-call him for further testimony. On cross-examination, the prosecutor’s first question was, “After I did my cross-examination, you spent some time thinking about your answers, right?” Barragan responded, “No, I didn’t.” The prosecutor replied, “Oh, you didn’t. Okay. Mr. Friedman [defense counsel] clearly did, though, right?” Defense counsel interjected, “Wait. Hold it,” and the court ruled, “Sustained. Sustained” to the anticipated objection. The prosecutor had only one other question, clarifying something defense counsel had asked in the re-opened testimony. 19 of Corrections began to “blend populations of general population and sensitive-needs population,” resulting in “anybody who’s in general population who happens to come from a Hispanic gang or under the Sureno umbrella who chooses to be a part of this mixed population automatically gets labeled as a snitch or somebody who’s no good.” Flores added, “Fire camp did the same thing” so “if there’s knowledge or perception knowledge that you participated in fire camp, it labeled you as a no-good individual.” He opined that for being a “snitch,” a gang member could face a variety of consequences, from “a verbal threat” to “death.” D. Closing Arguments Before the attorneys delivered their closing arguments, the court instructed the jury. Among the instructions delivered was: “Nothing that the attorneys say to you is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are significant only if they helped you to understand the witnesses’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.” 1. Prosecutor’s Closing Argument While there is no record of how long the prosecutor spoke in his initial argument, the court ordered the jurors to return at 10:30 a.m. for closing arguments and, after the prosecutor finished his closing argument, the jurors took their lunch break. The written transcript of his initial closing argument spanned 40 pages. The prosecutor spent much of his argument—taking up approximately 13 of the 40 pages in the transcript, or about one- 20 third of his argument—explaining why Barragan’s testimony was not credible. Among other things, he asserted Barragan’s testimony was bereft of details that he would have known if he was the only person who knew what had happened but instead, “all he did, if you recall, is try and hit the key points of evidence that point towards his guilt beyond a reasonable doubt. (Sic.) That’s all he talked about. That’s all he wanted to talk about because he’s coming up with a story. He’s coming up with a story after he’s heard everyone else say what they saw.” The prosecutor claimed Barragan “made up multiple stories” and “flip-flopped during his own examination.” At the end of his initial closing argument, the prosecutor said: “But I want you to keep in mind before I close my opening argument, because the defendant is going to -- defense attorney is going to get up here and he’s going to say something in rebuttal to what I’m saying. He’s typing away as I speak. “Keep in mind that he asked entirely leading questions of his own witnesses. Leading questions are questions where the answer is implied in the question itself. “He basically testified. He gave a paragraph question. At some point it was difficult to tell what the question actually was. And essentially just asked the defendant to agree.” At this point, defense counsel objected in the jury’s presence that this was “prosecutorial misconduct” and stated, “I did not testify.”14 The court overruled the objection, stating, 14 The prosecutor made four objections on the basis that the questions were leading, and the court sustained only one such objection, to the question “You’ve also been known to be a liar; is (Fn. is continued on the next page.) 21 again in the jury’s presence: “It’s argument. If you disagree[,] you can say so in your argument.” The prosecutor then asked the court to make a finding as to the accusation of prosecutorial misconduct. The court responded, “No, no. Just go on please.” The prosecutor asked again, “So no prosecutorial misconduct?” The court replied, “No.” The prosecutor concluded: “And he gave narrative answers. He faked -- the defendant gave negative answers [sic], faked his emotions, claimed he could not show tears. “And you know why he was so desperate to give you these stories and you know why he was led to these stories, why he was asked these implied answers in the questions? It is because he killed Danny and he got caught. “I just want you to keep that in mind.” 2. Motion for Mistrial Outside the presence of the jury, Barragan’s counsel moved for a mistrial, arguing that throughout the prosecutor’s closing argument, “he, on numerous occasions, denigrated my character and my abilities and the final straw was to suggest to the jury that I am testifying and I am in essence assisting or coaching Mr. Barragan as to what to say.” Counsel opined it was “completely inappropriate” and “unduly prejudiced Mr. Barragan,” resulting “in a denial of due process.” Counsel added: “I’ve been portrayed as being some type of a slick lawyer who is just coming up with excuses, me personally. And that has been transferred, I believe, by human nature over to my client. And it effects [sic] his right to a fair trial.” that correct?” The majority of defense counsel’s questions were not leading questions. 22  The court denied the motion, stating it “did not find anything in [the prosecutor]’s closing that I thought was outside the bounds and therefore motion is denied. I don’t think any curative instruction is called for.” 3. Defense’s Closing Argument Barragan’s counsel asserted that Barragan’s testimony “was his testimony . . . not my testimony.” Counsel spent most of his argument explaining why Barragan’s testimony was credible, and how the evidence demonstrated Vasquez shot Hernandez or at least created reasonable doubt that Barragan shot him. 4. Prosecutor’s Rebuttal The prosecutor reiterated the evidence pointing toward Barragan’s guilt, and argued Barragan’s version of the shooting was physically impossible because it did not match the trajectory of the bullets determined by law enforcement. Specifically, Barragan had testified Vasquez was on one bed when he shot Hernandez (who was on the other bed), but the bullets that struck Hernandez then struck cabinets on the north wall, which was impossible under Barragan’s version of events “unless bullets curve.” E. The Jury Finds Barragan Guilty, and the Court Sentences Him to Sixty Years to Life The jurors deliberated for approximately three and a half hours over three days (including three requests for testimony 23 readbacks)15 and found Barragan guilty on all counts except for making criminal threats. During trial, Barragan waived his right to a jury trial on whether he had suffered a previous conviction constituting a “strike,” and admitted he had suffered such a conviction. In January 2025, on the murder count, the court sentenced Barragan to 60 years to life, “which is the term of 25 years to life doubled because of the prior, and an additional ten years pursuant to Penal Code section 12022.5(a), for a total of 60 years to life.”16 For the remaining counts, the court selected the “Mid Term” of four years for each count, and ruled those sentences were to run concurrently with the sentence for murder. Barragan timely appealed. 15 The jury asked for a read back of the testimony of “Deputy Perez about Ring camera”; “Aaron Lewis with exclusion of his qualifications”; and “Amber Sage . . . specifically the portion of the likelyhoods [sic] of DNA on each gun.” As stated above, we omitted the summary of Perez’s testimony as it relates to a charge on which the jury acquitted Barragan. 16 (Pen. Code, § 12022.5, subd. (a) [“Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be pun