Filed 9/2/26 P. v. Ambriz CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084906
Plaintiff and Respondent,
v. (Super. Ct. No. JCF005740)
STEVEN GEORGE AMBRIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Kristine Gutierrez, James M. Toohey, and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted Steven George Ambriz of murder and unlawful possession of a firearm and ammunition. Ambriz seeks reversal of that
2
conviction, arguing the trial court inadequately investigated potential juror
misconduct. Ambriz also raises several claims of prosecutorial error.1 We disagree with Ambriz’s contentions and affirm.
II. BACKGROUND
In December of 2021, Ambriz shot Jordan Schmidt six times, killing him. Prior to the shooting, the two men were arguing over a firearm that Schmidt had given to Ambriz. According to witness Carlos Salazar, Ambriz held Schmidt at gunpoint while he directed Salazar to drive them to the site of the homicide near the edge of Brawley. Once arriving at the desired location, Ambriz killed Schmidt.
In 2022, the Imperial County District Attorney’s Office charged Ambriz
with murder (Pen. Code,2 § 187, subd. (a); count 1), kidnapping (§ 207, subd. (a); count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3), and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 4). Prosecutors alleged a kidnapping special circumstance for the murder (§ 190.2, subd. (a)(17)(B)) and that Ambriz personally and intentionally discharged a handgun causing great bodily injury and death in counts 1 and 2 (§ 12022.53, subds. (b)–(d)).
While the jury deliberated in Ambriz’s 2024 trial, the court received a note from juror number 9 (Juror No. 9) stating, “ ‘I would like to speak to the
1 Ambriz uses the term “prosecutorial misconduct,” but that “ ‘is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.’ ” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853.)
2 All further undesignated statutory references are to the Penal Code.
3
judge regarding a concern regarding continuing to serve on this jury.’ ” In response, the trial court questioned Juror No. 9 as follows:
The Court: Okay. Does the concern relate to something outside the deliberation process or is it something inside the deliberation process? Juror No. 9: Well, I mean, it’s regarding a comment that was said during jury — The Court: Okay. Somebody said something. Was it something to you? Juror No. 9: Something generally. The Court: Just a general statement? Juror No. 9: Uh-huh. The Court: Okay. And — and you — you — you didn't agree with that or you had a problem with that? Juror No. 9: Uh-huh. Yes.
The Court: Okay. All right. I — I understand your concern. Is that your only concern? Juror No. 9: Yes. The Court: Okay. Do you feel, as you sit here, that you can follow the instructions that you were given as far as your duties and obligations as a juror? Juror No. 9: No, your honor. The Court: Okay. How would you have a problem not following the — the instructions? What would be your concern? Juror No. 9: I feel, at this point, I am unable to remain impartial. The Court: Okay. Your impartiality is — is — you — you say you cannot do it and cannot continue to do that? Juror No. 9: Yes. The Court: Okay. All right. Now, impartiality talks about bias against people and — and other things related to the
4
jury process. That’s what you’re talking about. You don’t feel you can follow that instruction? Juror No. 9: Uh-huh. The Court: Okay. Juror No. 9: Yes, your honor. The Court: Okay. Very good. That’s all the questions I have. The trial court found good cause to excuse Juror No. 9, and it replaced her with an alternate. The trial court denied Ambriz’s requests to further question Juror No. 9 and to ask the entire jury if they heard any inappropriate comments. The trial court explained that if any other jurors had concerns, they were aware that they could communicate with the court by note, and that the comment at issue could have been innocuous or “something that just rubbed Juror No. 9 the wrong way.”
The trial court informed the jury that it granted Juror No. 9’s request to be excused. The trial court reminded the remaining jurors to follow the jury instructions and to inform the court if any of them were unable to do so. The trial court replaced Juror No. 9 with an alternate and instructed the jury to disregard all past deliberations and to start deliberations anew.
The newly constituted jury convicted Ambriz of premeditated first degree murder, finding true the firearm allegations under section 12022.53, subdivisions (b) and (c). The jury also found Ambriz guilty of counts 2 and 3. The jury did not return a verdict on count 2 or the kidnapping special circumstance in count 1, so the trial court instructed them to continue deliberating.
After the alternate juror who replaced Juror No. 9 was hospitalized and replaced with a second alternate juror, the jury was unable to reach a verdict on count 2 or the kidnapping special circumstance in count 1. The trial court
5
granted the People’s request to dismiss the kidnapping charge and special circumstance.
The trial court sentenced Ambriz to prison for 70 years to life. Ambriz received 25 years to life for count 1, plus 20 years to life for the firearm enhancement under section 12022.53, subdivision (c), plus 25 years for two prior strikes. The trial court imposed but stayed 10 years for the section 12022.53, subdivision (b) enhancement, two years for count 3, and two years for count 4. Ambriz timely appealed.
III. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion When Investigating the Comment Reported by Juror No. 9 Ambriz argues that the trial court failed to investigate adequately the circumstances leading to Juror No. 9’s dismissal. Ambriz claims that because another juror’s comment caused Juror No. 9 to doubt her impartiality, it called into question whether that other juror committed misconduct and whether that misconduct affected the remainder of the jurors. We disagree.
1. Court’s Duty to Investigate Potential Juror Misconduct “ ‘[C]ourts should exercise caution when undertaking inquiries that threaten to trench on the sanctity of jury deliberations, for the preservation of secrecy during deliberations fosters an atmosphere conducive to a frank and open discussion of the issues among jurors. Ensuring such secrecy also insulates the jury from improper influence that could be brought to bear by outside forces and supports the stability of jury verdicts.’ ” (People v. Zemek (2023) 93 Cal.App.5th 313, 336.) Accordingly, “inquiry into possible grounds for discharging a juror . . . during jury deliberations . . . ‘should be as limited in scope as possible.’ ” (People v. McGhee (2025) 17 Cal.5th 612, 629.)
6
“ ‘[W]hen a court is put “on notice that improper or external influences were being brought to bear on a juror . . . ‘it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether the impartiality of the other jurors has been affected.’ ” ’ . . . On the other hand, ‘not every incident involving a juror’s conduct requires or warrants further investigation. “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] . . . [¶] As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his duties and would justify his removal from the case.” ’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 702 (Fuiava).)
For example, in Fuiava, during oral argument Juror J. reported being distressed because two courtroom spectators associated with the defendant were talking and pointing at jurors in a nonthreatening manner. (Fuiava, supra, 53 Cal.4th at p. 701.) Some of the other jurors discussed this, with one suggesting that a note be sent to the court. (Ibid.) The trial court excused Juror J., finding it unnecessary to take any further action until the other jurors reported something. (Ibid.)
On appeal, the defendant claimed the trial court should have investigated whether the other jurors were prejudiced by the spectators’ alleged conduct. (Fuiava, supra, 53 Cal.4th at p. 702.) Our Supreme Court disagreed, finding that Juror J. may have been “overly sensitive” and the circumstances did not suggest that any other jurors were similarly upset. (Id. at pp. 702–703.) The high court also determined that “it was reasonable for the trial court to proceed on the belief that any other juror who might
7
have been affected by asserted spectator conduct would call that circumstance to the court’s attention, rather than the court suspending the trial in the midst of closing arguments to undertake an inquiry on the subject.” (Id. at p. 703.)
2. Analysis Here, an unknown juror made a “general statement” during deliberations, causing Juror No. 9 to doubt her impartiality. Although the trial court was not aware of what the unknown juror said, one juror’s statement causing another to question herself does not necessarily imply misconduct. As the trial court observed, and like Fuiava, the statement could have been innocuous and simply “rubbed Juror No. 9 the wrong way.” “ ‘ “[C]ourt[s] must not presume the worst” of a juror.’ ” (People v. Zemek, supra, 93 Cal.App.5th at p. 337.)
Also, like Fuiava, no other jurors expressed concerned with the comment. At the beginning of the trial, the trial court instructed the jury that its decision must be based on the evidence presented at trial, without bias or independent investigation, and the receipt of outside information must be reported immediately to the bailiff. The trial court reiterated these concepts at the close of evidence, admonishing the jurors that they may communicate with the judge by sending a note through the bailiff, and that they must follow the law as instructed and decide the case for themselves. Finally, after informing the jury that Juror No. 9 had been excused, the trial court told the jurors to inform the court if they had any problem following the court’s instructions. Despite this direction, no other juror reported anything about the general comment that caused Juror No. 9 to doubt her impartiality.
Unlike the cases upon which Ambriz relies, the trial court was not faced with circumstances where improper or external influences can be
8
readily inferred. (See People v. McNeal (1979) 90 Cal.App.3d 830, 835–838 [juror had personal knowledge of the case that “ ‘would definitely affect her decision’ ” and was disclosed to at least one other juror]; People v. Burgener (1986) 41 Cal.3d 505, 520–521 [juror reportedly intoxicated during deliberations].) Additionally, “it was reasonable for the trial court to proceed on the belief that any other juror who might have been affected by [the general comment] would call that circumstance to the court’s attention, rather than the court suspending the trial in the midst of [deliberations] to undertake a [further] inquiry on the subject.” (Fuiava, supra, 53 Cal.4th p. 703.) We therefore see no abuse of discretion. B. Ambriz Fails to Demonstrate Prosecutorial Error Ambriz asserts five grounds of prosecutorial error during closing argument: (1) relying on facts not in evidence; (2) misstating the law and shifting the burden of proof; (3) vouching for the People’s case; (4) urging the jury to sympathize with Schmidt; and (5) denigrating defense counsel. The first, third, and fifth claims are forfeited, while the remaining two are unpersuasive.
1. Prosecutorial Error “Advocates are given significant leeway in discussing the legal and factual merits of a case during argument.” (People v. Centeno (2014) 60 Cal.4th 659, 666.) “When attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ ” (Id. at p. 667.) “ ‘[W]e “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’ ” (Ibid.) We also presume “ ‘the jury treated the
9
court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ ” (People v. Morales (2001) 25 Cal.4th 34, 47.)
2. Forfeiture “ ‘A defendant may not complain on appeal of prosecutorial [error]
unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.’ . . . This is so, because in many instances, a timely objection and an admonition ‘would have cured any resulting harm.’ ” (People v. Thomas (2021) 64 Cal.App.5th 924, 954, citation omitted.) “The defendant’s failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct.” (People v. Centeno, supra, 60 Cal.4th at p. 674.)
During trial, Ambriz never claimed that the prosecutor relied on facts not in evidence, vouched for the People’s case, or denigrated defense counsel. Further, nothing in the record indicates that objections would have been futile, or that the alleged harm was incurable by admonition. These claims of prosecutorial error are therefore forfeited.
However, contrary to the People’s assertions, we find adequately preserved Ambriz’s claims that the prosecutor misstated the law, shifted the burden of proof, and evoked victim sympathy. Ambriz raised these issues both during oral argument and after the jury had been excused to deliberate, and he requested jury admonishments.
3. Misstatements of the Law and Burden Shifting “ ‘[I]t is improper for the prosecutor to misstate the law generally [citation] and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.” (People
10
v. Hill (1998) 17 Cal.4th 800, 829.) However, “[c]omments on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the People’s case are generally permissible.” (People v. Woods (2006) 146 Cal.App.4th 106, 112.)
In her rebuttal argument, the prosecutor stated:
Check the record because, again, the statements that attorneys make are not evidence. The record is the evidence, the testimony is the evidence, and the evidence that was presented to you is also the evidence. And they match up. They match up beyond a reasonable doubt.
Now, proof that leaves you with an abiding conviction that the charge is true, that is what reasonable doubt is. But I will remind you that there’s no defense in this case. There’s no self-defense. You didn’t get a jury instruction on that. There’s no lesser-included offenses. There’s no manslaughter. You didn’t get an instruction on that ’cause it doesn’t exist in this case.
The evidence does not support it. The evidence in — in this case supports the charges that were charged against the defendant, that with callousness, he coldly and calculated kidnapped Jordan C. Schmidt, took him on the outskirts of Brawley, and executed him in cold blood. That’s what the evidence supports.
The only reasonable conclusion for you to come to in this case is to find the defendant guilty on all counts and all allegations.
Ambriz argues that these statements suggest that he had an affirmative duty to prove his innocence or a lesser degree of culpability, thereby misstating the law and improperly shifting the burden of proof. We disagree.
The prosecutor’s remarks are reasonably interpreted as a comment on the strength of the evidence favoring conviction. (See, e.g., People v. Redd
11
(2010) 48 Cal.4th 691, 740 [finding no misconduct where “the prosecutor’s comments merely highlighted his observation that there seemed to be no coherent defense to the charges”]; People v. Bradford (1997) 15 Cal.4th 1229, 1340 [“A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.”].)
Further, “had any juror interpreted the comments to indicate that defendant had a burden of proof, this impression would have been dispelled by the instructions and the numerous reminders to the jurors that the People bore the burden of proving defendant’s guilt.” (People v. Redd, supra, 48 Cal.4th at p. 740.) The trial court instructed the jury to follow its instructions to the extent they conflicted with the attorneys’ comments, and those instructions included that Ambriz is presumed innocent and that the People must prove his guilt beyond a reasonable doubt. The prosecutor repeated in her closing argument that the attorneys’ statements are not the law and that the jury must rely on the court’s instructions. Counsel for both sides also reiterated that the People had the burden of proof beyond a reasonable doubt.
Based on the instructions provided, and viewing the prosecutor’s argument in its entirety, we discern no reasonable likelihood that the prosecutor’s challenged remarks would have misled the jury to believe that Ambriz had the burden of proof. We therefore see no prosecutorial error on this ground.
4. Victim Sympathy “ ‘ “It is, of course, improper to make arguments to the jury that give it the impression that ‘emotion may reign over reason,’ and to present
12
‘irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.’ ” ’ ” (People v. Leon (2015) 61 Cal.4th 569, 605–606.) And “[a]s a general rule, a prosecutor may not invite the jury to view the case through the victim’s eyes, because to do so appeals to the jury’s sympathy for the victim.” (Id. at p. 606.)
The prosecutor’s closing argument included the following:
[Prosecutor]: [Schmidt] committed criminal activity. [Schmidt] was involved in gangs. [Schmidt] was involved with criminals. Again, like Investigator Curiel said, he — he chose a different path. But [Schmidt] was also a nephew, a cousin — [Defense counsel]: Objection. Improper argument. The Court: Sustained. [Prosecutor]: [Schmidt] was also a person. [Defense counsel]: Objection. Improper argument. The Court: Overruled. [Prosecutor]: He didn’t deserve to die. He certainly didn’t deserve to die at the hands of this defendant who took him out to the outskirts of Brawley and executed him in cold blood and left his body there for investigators to find. In her rebuttal argument, the prosecutor also stated, “I’ve had to look at pictures of [Schmidt] over and over again, deceased, the details of [Schmidt’s] . . . .” At that point, the trial court sustained Ambriz’s improper argument objection and instructed the prosecutor to move on.
Ambriz argues that these remarks constituted prosecutorial error because they urged the jury to sympathize with Schmidt and to put themselves in Schmidt’s place at the time he was shot.
13
Although the prosecutor described the circumstances of the murder, she did not invite the jury to walk in Schmidt’s shoes or relive his experience. Additionally, those circumstances were a fair comment on the evidence and relevant to the People’s theory of premeditated first degree murder with a kidnapping special circumstance. (See, e.g., People v. Leon, supra, 61 Cal.4th at p. 606 [no misconduct where prosecutor “did not invite the jury to place themselves in [the victim’s] shoes or to imagine his suffering” but rather “directed their attention to [the victim’s] behavior . . . to point out how he was callously shot in the back”].)
Additionally, even though the comments could have invoked the jury’s sympathy, they were brief, and the trial court sustained two of Ambriz’s improper argument objections. The trial court also instructed the jury not to let sympathy influence its decision, to impartially consider all the evidence, to convict Ambriz only if the evidence proved that he was guilty beyond a reasonable doubt, and that statements by counsel are not evidence. “We presume the jury followed the court’s instruction[s].” (People v. Martinez (2010) 47 Cal.4th 911, 957.)
Under these circumstances, it is not reasonably likely that the jury applied the challenged comments in an improper or erroneous manner. Abriz has therefore failed to show prosecutorial error on this ground as well. C. There is No Cumulative Error As discussed above, we find no error to cumulate. “We therefore reject defendant’s claim that cumulative error in his trial denied him a fair trial and due process of law.” (People v. Koontz (2002) 27 Cal.4th 1041, 1094.)
14
IV. DISPOSITION
The judgment is affirmed.
RUBIN, J.
I CONCUR:
KELETY, J.
Dato, J., Dissenting.
I respectfully dissent. The alleged juror misconduct in this case is all about what we don’t know. An unidentified juror made a statement during deliberations, the content and context of which is unknown. All we do know is that the statement caused one of the other jurors—Juror No. 9—to believe she could no longer be fair and impartial. Accepting this assessment as accurate, the trial court discharged Juror No. 9 and substituted an alternate. But it made no attempt to ascertain anything about what was said and, most importantly, whether the impartiality of other jurors might have been affected. It merely provided jurors with a desultory reminder—“if any of you have a problem with following the jury instructions, you just let the court know and we’ll leave it at that”—and sent them back to restart their deliberations.
Following the verdict, Ambriz filed a request to unseal contact information for the discharged Juror No. 9, hoping to obtain evidence in support of a motion for new trial. The court denied the request, concluding that “[t]he dismissal of Juror [No. 9] before any verdict was reached or the surrounding circumstances do not rise to the level of a factual showing of good cause to establish a prima facie showing to unseal Juror Information.” Ambriz was left to file a motion for new trial based in part on the court’s failure to investigate the possibility of juror misconduct, but unaccompanied by any declaration from Juror No. 9. That motion was also denied.
When the trial court becomes aware of the possibility one or more jurors may have been subject to improper influences that could affect their impartiality, it has a “duty to make whatever inquiry is reasonably necessary” to determine (1) if the affected juror(s) should be discharged,
2
and (2) “whether the impartiality of other jurors has been affected.” (People v. McNeal (1979) 90 Cal.App.3d 830, 839 (McNeal); accord People v. Hem (2019) 31 Cal.App.5th 218, 227–228 (Hem).) Most cases involve McNeal’s level one inquiry and whether a juror was properly retained or discharged. (See, e.g., People v. Burgener (1986) 41 Cal.3d 505 [allegedly intoxicated juror]; People v. Dell (1991) 232 Cal.App.3d 248 [jurors discharged for illness]; People v. Chavez (1991) 231 Cal.App.3d 1471, 1479 [juror spoke with law enforcement witness outside courtroom].) This case focuses on the adequacy of the level two inquiry.
The trial court here resolved the level one inquiry to its satisfaction by questioning Juror No. 9 and concluding she could no longer be impartial. Ambriz does not challenge that conclusion, nor the court’s subsequent decision to discharge Juror No. 9. The problem is that the questioning of Juror No. 9 shed no light on what the statement maker said, whether the statement was heard by and affected any other juror, and whether the statement itself constituted misconduct. But the mere fact a statement was made by a juror that destroyed the ability of at least one other juror to be impartial was enough to require additional investigation.
In the trial court’s view, any further questioning of Juror No. 9 would have required it “to get into the deliberative process of the jury.” As a result, at every stage of the proceedings Juror No. 9’s disclosure was handled like a hot potato. Although questioning jurors in midst of deliberations must be conducted with some sensitivity, a court cannot sidestep that challenge by pretending there isn’t a problem. (See People v. Cleveland (2001) 25 Cal.4th 466, 476 [“The need to protect the sanctity of jury deliberations ... does not preclude reasonable inquiry by the court into allegations of misconduct during deliberations”].) Here, the judge quickly decided to discharge Juror
No. 9, but then declined to ask her what was the nature of the statement made during deliberations that caused her to lose her impartiality and, if appropriate, whether that statement might have similarly affected other jurors. (See id. at p. 484 [Evidence Code section 1150 “expressly permits” courts to consider evidence of statements made in the jury room].) Exploring those questions would not have been a “ ‘fishing expedition’ ” in search of misconduct (see People v. Hedgecock (1990) 51 Cal.3d 395, 419); rather, it was “a necessary step to preserve defendant’s right to a fair jury trial.” (Hem, supra, 31 Cal.App.5th at p. 227.)
Moreover, even if interfering with ongoing jury deliberations was initially a legitimate concern, it largely evaporated once Juror No. 9 was discharged and the reconstituted jury began deliberating with an alternate juror. At that point, Juror No. 9 was no longer a deliberating juror, and the court should have made at least a limited inquiry as to what was said to her and if she knew whether anyone else was in a position to hear it. It then could have decided if further questioning of any deliberating juror was warranted.
Not only did the trial court fail to adequately investigate the possibility of juror misconduct when it first became aware of it, but it then compounded its initial error by refusing to release contact information for Juror No. 9 so that Ambriz could interview Juror No. 9 in support of his motion for new trial. Under these circumstances, the lack of information resulting from the court’s failure to conduct an appropriate inquiry cannot be deemed harmless (McNeal, supra, 90 Cal.App.3d at p. 840), and I believe we have no choice but to reverse the convictions.
DATO, Acting P. J.