People v. Torres CA2/8

Opinion

Filed 8/18/26 P. v. Torres CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B343661

Plaintiff and Respondent, Los Angeles County Super. Ct. No. 24LBCF00934 v.

DANIEL TORRES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Affirmed. Sarah S. Sanger, 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, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent. ____________________ Daniel Torres asks us to reverse his convictions due to prosecutorial misconduct. There was neither misconduct nor error. We affirm. Torres faced claims for unlawfully possessing ammunition and contempt of court. (Pen. Code, §§ 30305, subd. (a)(1), 166, subd. (c)(1).) Trial showed Torres had several felony convictions, including a recent domestic violence conviction prohibiting him from possessing firearms and ammunition. He was living at his father’s home after his release from prison. A criminal protective order required him to stay at least 100 yards from this property. Several months after Torres moved in, Torres’s father called 911 requesting police help because Torres was angry and “out of control.” Police went to the father’s home. There they found nine-millimeter ammunition in a pouch on a bed in a detached bedroom. A testifying officer observed the bedroom looked “lived in” and leftover food in the room “didn’t look rotten.” Torres’s father confirmed at trial that Torres slept in this room. Torres testified he did not sleep in the room; rather, it was used as a guest room and a storage room. He maintained he was unaware of ammunition in his father’s home. Torres’s father had a gun and ammunition, and his brother kept some ammunition in the garages. Police found more ammunition in a safe in another part of the property, a safe the brother never had seen and the father never had used. A few months after his arrest, Torres called his nephew from jail. The calls were recorded and played for the jury. Torres directed his nephew to go into a garage at Torres’s father’s home and check for a “ps5” in a black backpack. The boy found the bag. Then, among other things, Torres told him to 2 leave, suggested things he could do to “look low key,” warned “don’t be loud mouth nothing” and ended the call by saying, “Oh shit go put that back don’t get in the car right now [¶] . . . Let me call my mom hide it!” Police were at the home at the time to serve Torres’s father with a subpoena. They observed the nephew, who appeared “very nervous” and received several calls while they were there. The caller was Torres. Police went to the area of the home where they first saw the nephew and found a loaded nine-millimeter semiautomatic firearm on the ground, but no PlayStation 5 gaming system. At trial, defense counsel cross-examined police about the ammunition they found at the home. Counsel established they had not tested it for fingerprints or DNA. Defense counsel repeatedly raised this point in closing argument. He told the jury: “Zero forensics.” “Was there fingerprint testing anywhere here?” “There’s some issues you’ve had with the lack of—not just forensic, which is basic investigation skills. I hope you’re looking back on the fact that no fingerprinting, no DNA testing, no video, okay. The fingerprint is pretty poor, but okay.” “[W]hy could you not just test this for fingerprints?” “[D]on’t you think that fingerprints would have been helpful?” “I am not understanding why these things weren’t done.” “By the way, no testing, of course, not even a consideration. Test the safe. Test the boxes. I am not saying DNA. Fingerprint. Easy.” “Excuse me if I am a little outraged, and it’s bringing up the temperature of this room. But it’s a little outrageous to have no forensics.”

3 The prosecutor returned to the issue in rebuttal. We emphasize the portions of the argument Torres challenges on appeal: “The defense is correct that, yes, I do have the burden of proving each and every element beyond a reasonable doubt. [¶] But if the defense thinks that the evidence is so relevant that it would somehow exonerate his client, why didn’t he test it? He has access to it, just like the People do.” (Italics added.) Defense counsel objected on the grounds of burden shifting. The court responded: “Sustained—well— [¶] Ladies and gentlemen, the People have the burden of proof on the case here.” The prosecutor continued: “They have access to it. They could have tested it, but they chose not to. And why? Because the evidence shows that the defendant was in possession of that ammunition.” (Italics added.) Torres argues the italicized comments amounted to misconduct that violated his constitutional rights and requires reversal. He says the prosecutor improperly shifted the burden of proof by arguing he had a duty to produce evidence and to prove his innocence. He also maintains his counsel was ineffective for failing to object to the prosecutor’s second round of comments. We assume Torres did not forfeit any part of his appellate challenge and therefore need not reach his claim of ineffective assistance. On the issue of misconduct, “ ‘prosecutorial error’ ” is the more apt term. (People v. Potts (2019) 6 Cal.5th 1012, 1036 (Potts).) It refers to a prosecutor’s use of deceptive or reprehensible methods to persuade the jury or to prosecutorial conduct that renders a trial fundamentally unfair. (See People v. Panah (2005) 35 Cal.4th 395, 462 (Panah).)

4 Torres’s appeal fails because it is not error or misconduct for the prosecution to comment on the defense’s failure to produce DNA or fingerprint evidence in response to defense attacks on the investigation. (Panah, supra, 35 Cal.4th at p. 464; see also People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford) [prosecutor may comment on the state of the evidence and the defense’s failure to introduce material evidence or to call anticipated witnesses]; People v. Cook (2006) 39 Cal.4th 566, 607– 608 [no burden shifting or misconduct by prosecutor who argued to the jury that the defendant could call, and had the right to produce, a criminalist to testify about bullets removed from the victims]; id. at p. 607 [“Pointing out that contested physical evidence could be retested did not shift the burden of proof”]; People v. Bertsch and Hronis (2026) 19 Cal.5th 183, 295–296 [where defendants repeatedly attacked the veracity and reliability of the state’s DNA testing, the prosecution was entitled to rebut the attacks by showing defendants’ experts observed the state’s testing and obtained DNA material to conduct their own testing, and by commenting on the defense’s failure to call their expert as a witness; none of this improperly shifted the burden of proof].) The prosecutor did not state Torres had a duty or burden to produce evidence or to prove anything. (See Bradford, supra, 15 Cal.4th at p. 1340; cf. People v. Woods (2006) 146 Cal.App.4th 106, 113–114 [prosecutor improperly argued defense counsel was “ ‘obligated’ ” to put on evidence].) The prosecutor repeatedly told the jury she had the burden of proof, including immediately before the challenged comments. Nor was it error for the prosecutor to suggest that the defense bypassed testing because the evidence showed the 5 ammunition was in Torres’s possession. Prosecutors have a wide-ranging right to discuss the case in closing argument, to state fully their views as to what the evidence shows, and to urge the conclusions they deem proper. (Panah, supra, 35 Cal.4th at p. 463.) The prosecutor made a fair comment on the state of the evidence implicating Torres. Recall, police found ammunition on top of the bed where Torres slept. Even if the challenged comments could be considered erroneous, Torres has failed to establish error warranting reversal because it is not reasonably likely the jury misapplied these fleeting comments to impose any burden on him. (See Potts, supra, 6 Cal.5th at p. 1036 [defendant must establish a reasonable likelihood the jury construed the remarks in an objectionable fashion].) The challenged comments were brief. The prosecutor and the defense repeatedly told the jury who had the burden of proof. In the middle of the challenged comments, the trial court admonished the jury that the prosecution bore the burden of proof. The court also properly instructed the jury on this burden at the beginning and end of trial. The court’s action was sufficient to prevent prejudice. (See People v. Fuiava (2012) 53 Cal.4th 622, 728; see also Bradford, supra, 15 Cal.4th at p. 1337 [even if the prosecutor committed misconduct in displaying certain evidence to the jury, the reference to the evidence was fleeting, the trial court informed the jury it must disregard the evidence, and this admonition would have cured the harm].) It was clear where the burden of proof lay.

6 DISPOSITION We affirm the judgment.

WILEY, J.

We concur:

STRATTON, P. J.

VIRAMONTES, J.