Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 20, 2026 Get Citation Alerts Download PDF Add Note

People v. Mendoza CA2/3

California Court of Appeal

• Citations: None known
• Docket Number: B341177

• Precedential Status: Non-Precedential

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (5K)

• PDF

Combined Opinion

Filed 3/20/26 P. v. Mendoza CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B341177

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA158412)
v.

LUIS MENDOZA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Teresa P. Magno, Judge. Reversed and
remanded.
Aurora Elizabeth Bewicke, 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, Taylor Nguyen and Herbert S. Tetef, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

A jury found Luis Mendoza guilty of the second degree
murder and assault of Delmar Lee Norris. Norris, a 63-year-old
man, was walking with a cane when Mendoza ran up behind him
and, without warning, punched him in the back of the head.
Norris fell face-first onto the concrete sidewalk and hit his head.
He was dead before paramedics arrived.
Mendoza contends there is insufficient evidence of implied
malice to support the conviction of second degree murder. He
also asserts numerous trial errors, including several related to:
jury instructions; prosecutorial misconduct in closing arguments;
the trial court’s response to Mendoza’s possession of the list of
jurors and his disclosure of the jurors’ names to his family
members; and the court’s denial of his requests to discharge his
retained counsel. Mendoza additionally asserts claims of
sentencing error related to the court’s findings on prior strike
allegations and its order denying Mendoza’s motion to dismiss
the strikes; an order prohibiting him from possessing knives; and
errors in the abstracts of judgment. He additionally argues he
was denied the effective assistance of counsel.
We conclude the prosecutor prejudicially misstated the law
in closing arguments and defense counsel was ineffective for
failing to object. We therefore reverse the judgment as to the
murder conviction and accompanying sentence. However,
because we additionally conclude that substantial evidence
supported the conviction, Mendoza may be retried. As we are
reversing the judgment, we do not address Mendoza’s other
contentions.

2
FACTUAL AND PROCEDURAL BACKGROUND
On August 22, 2022, at 11:29 p.m., Norris was walking on a
street in Los Angeles. Norris was 63 years old. He was walking
with a cane. Surveillance video from a nearby liquor store
showed Mendoza, who was 31 years old, running after Norris and
approaching him from behind. Mendoza punched Norris in the
back of the head. Norris fell forward onto concrete, making no
observable attempt to stop his fall. During the entire
interaction—as Mendoza ran up and when he struck Norris—
Norris was facing away from Mendoza. As Norris lay on the
ground, face down, Mendoza briefly stood over him. Mendoza
then walked away and did not look back.
In response to a 911 call, paramedics arrived at
approximately 11:50 p.m. Norris did not have a pulse and was
not breathing.
A responding Los Angeles Police Department officer
observed contusions and blood on Norris’s face. He also saw a
cane near Norris’s body.
Law enforcement did not initially suspect foul play. Thus,
the original autopsy involved only an external examination.
After officers obtained surveillance video of the incident, the
medical examiner’s office for Los Angeles County conducted a
second autopsy. The autopsies established that Norris had three
abrasions on his forehead and two on his nose. Norris’s skull had
a one-and-three-quarter-inch fracture in the center of his
forehead. Norris also had a one-inch subcutaneous hemorrhage
behind his ear. A deputy medical examiner testified at trial that
the hemorrhage was consistent with Norris being punched in the
head.

3
The deputy medical examiner further testified that Norris’s
injuries were consistent with falling face-first onto concrete. The
examiner opined that the cause of Norris’s death was “blunt head
trauma” due to his skull fracture and “bleeding around the
brain,” or “subarachnoid hemorrhages.” He explained that the
force of Norris’s head hitting the ground caused his brain to
“bounce around.” This led to bleeding in the brain and death.
The medical examiner further opined that Norris’s cause of
death was “homicide.” He explained that the surveillance video
showed Norris “immediately lost consciousness” and died “within
minutes,” suggesting a “strong temporal relationship of the death
to the punch.” Although when Norris died, he had a “large
heart”; coronary artery disease; and methamphetamine, cocaine,
and marijuana in his system; these medical conditions and drugs
did not contribute to his death.
In June 2024, the People charged Mendoza in an amended
information with the murder of Norris (Pen. Code, § 187,
subd. (a))1 and assault by means of force likely to produce great
bodily injury (§ 245, subd. (a)(4)). As to the assault, the
information also alleged Mendoza personally inflicted great
bodily injury within the meaning of section 12022.7,
subdivision (a).
In July 2024, a jury found Mendoza guilty of second degree
murder and of assault, and found true the allegation that he
personally inflicted great bodily injury during the course of the
assault.
Mendoza waived his right to a jury trial on allegations that
he had suffered prior strikes and on alleged aggravating factors.

1 All undesignated statutory references are to the Penal
Code.

4
After a bench trial, the trial court found true that Mendoza
suffered two strike priors based on two section 245,
subdivision (a)(2) assault convictions, both from August 20, 2013.
The trial court also found true three aggravating factors under
California Rules of Court, rule 4.421: the crime involved a high
degree of cruelty, viciousness, or callousness (rule 4.421(a)(1));
the victim was particularly vulnerable (id., (a)(3)); and Mendoza
was a serious danger to society (id., (b)(1)).
The trial court sentenced Mendoza to 45 years to life in
prison on the murder count, consisting of 15 years to life, tripled
for the two strikes. As to the assault count, the trial court
sentenced Mendoza to the upper term of four years, plus three
years for the great bodily injury enhancement, for a term of seven
years, which it stayed pursuant to section 654.
Mendoza timely appealed.
DISCUSSION
I. Sufficient Evidence Supports the Jury’s Finding
That Mendoza Acted with Implied Malice
Mendoza contends there is insufficient evidence of implied
malice to support the jury’s second degree murder conviction. He
asserts that “[p]eople fall all the time, even on hard sidewalks,
without dying,” assaults happen frequently, boxing is a
recreational sport, thus it was not highly likely or foreseeable
Norris would die from a single punch. We conclude substantial
evidence supports the jury’s finding of implied malice.
A. Standard of review
“ ‘The test for evaluating a sufficiency of evidence claim is
deferential.’ [Citation.]” (People v. Pierce (2025) 114 Cal.App.5th
508, 522 (Pierce).) To determine whether the evidence is
sufficient to sustain a conviction, “we review the entire record in

5
the light most favorable to the judgment of the trial court. We
evaluate whether substantial evidence, defined as reasonable and
credible evidence of solid value, has been disclosed, permitting
the trier of fact to find guilt beyond a reasonable doubt.” (People
v. Vargas (2020) 9 Cal.5th 793, 820.) We are required to
“ ‘ “presume in support of the judgment the existence of every fact
the [jury] could reasonably deduce from the evidence,” ’ ” and we
accept logical inferences the jury might have drawn from
circumstantial evidence. (People v. Baker (2021) 10 Cal.5th 1044,
1103.) Reversal is not warranted unless it appears “ ‘ “ ‘that upon
no hypothesis whatever is there sufficient substantial evidence to
support’ ” the jury’s verdict.’ [Citation.]” (People v. Penunuri
(2018) 5 Cal.5th 126, 142.)
B. Implied Malice
“Murder is committed with implied malice when ‘the killing
is proximately caused by “ ‘an act, the natural consequences of
which are dangerous to life, which act was deliberately performed
by a person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life.’ ” ’
[Citation.] ‘ “To be considered the proximate cause of the victim’s
death, the defendant’s act must have been a substantial factor
contributing to the result, rather than insignificant or merely
theoretical.” ’ [Citation.]” (People v. Reyes (2023) 14 Cal.5th 981,
988 (Reyes).)
“ ‘Implied malice requires proof of both a physical act and a
mental state.’ [Citation.] . . . The test therefore involves an
objective component (an intentional act endangering the life of
another), and a subjective component (knowledge and disregard
of the danger).” (Pierce, supra, 114 Cal.App.5th at p. 523.)

6
Our high court recently clarified what is required for the
objective or physical component: “To suffice for implied malice
murder, the defendant’s act must not merely be dangerous to life
in some vague or speculative sense; it must ‘ “involve[ ] a high
degree of probability that it will result in death.” ’ [Citations.]”
(Reyes, supra, 14 Cal.5th at p. 989, italics added.)
Implied malice may be determined by circumstantial
evidence. (People v. Superior Court (Valenzuela) (2021) 73
Cal.App.5th 485, 502 (Valenzuela).) “Among the circumstances
courts have found relevant in determining whether malice may
be inferred are the victim’s vulnerability, the number of
assailants, the ferocity and duration of the attack, and the
unusualness or unexpectedness of the victim’s death.” (Ibid.)
The parties agree that we must look to People v. Cravens
(2012) 53 Cal.4th 500 (Cravens), which is our high court’s most
recent authority regarding implied malice murder involving a
“sucker punch.” In Cravens, a single “sucker punch” to the
victim’s head resulted in the victim’s death. Before that, the 21-
year-old defendant and his friends were at a bar when they
confronted the victim, a 24-year-old professional surfer. (Id. at
p. 502.) The defendant and his friends followed the victim home
after the confrontation. (Id. at p. 503.) There was conflicting
evidence as to whether several men then beat the victim while he
was on the ground, or whether it was a one-on-one fight between
the victim and another man who was not the defendant. (Id. at
p. 504.) Regardless, the victim “managed to get loose, but he was
unsteady and could not walk straight. [One witness] was
surprised he was able to get up at all.” (Id. at p. 505.) The
defendant then “ ‘came flying out’ and ‘coldcocked’ [the victim].
At the time of the blow, defendant was on the curb and [the

7
victim] was at street level.” (Ibid.) Witnesses described the
punch as “ ‘extremely hard,’ ” and “neighbors could hear the
sound of [the victim’s] skull hitting the ground.” (Ibid.) Trial
testimony established that the victim’s injuries were “consistent
with being punched by someone coming off a greater height and
propelling him onto a concrete surface.” (Ibid.) The cause of
death was “blunt-force head injuries.” (Id. at p. 506.)
In Cravens, the court found sufficient evidence of implied
malice murder. (Cravens, supra, 53 Cal.4th at p. 512.) It
observed that “[t]his state has long recognized ‘that an assault
with the fist . . . may be made in such a manner and under such
circumstances as to make the killing murder.’ [Citation.]
However, ‘if the blows causing death are inflicted with the fist,
and there are no aggravating circumstances, the law will not
raise the implication of malice aforethought, which must exist to
make the crime murder.’ [Citation.]” (Id. at p. 508.) The court
then described the aggravating circumstances present: The
defendant had “targeted a smaller and shorter victim who was
intoxicated, exhausted, and vulnerable,” and who was also
“visibly worn out from the prior altercation.” (Ibid.) The victim
“was unsteady and unable to walk straight.” (Ibid.) The punch
was also “ ‘extremely hard.’ ” (Id. at p. 509.) The court reasoned
that the defendant’s conduct “guaranteed that [the victim] would
fall on a very hard surface, such as the pavement or the concrete
curb.” (Ibid.) The court further observed that the consequences
of a fall onto concrete must have been known to the defendant.
(Ibid.) Finally, the court stated that “worst of all, defendant
decked [the victim] with a sucker punch. The jury could
reasonably have found that at the time defendant attacked, [the
victim] posed no threat and was not behaving in an aggressive

8
manner,” and the defendant “intended to catch [the victim] at his
most vulnerable.” (Ibid.)
The circumstances here are comparable to Cravens in
several material ways. Norris was a 63-year-old walking with a
cane. Like the victim in Cravens, he was particularly vulnerable,
and his vulnerability was apparent. (See also Valenzuela, supra,
73 Cal.App.5th at pp. 503, 502 [finding implied malice where
victim’s arm was in a cast and sling, and “could only defend
himself with one arm, and that disability was obvious”].) The
jury could also reasonably infer that Mendoza punched Norris
hard from the evidence that Norris suffered a one-inch
subcutaneous hemorrhage behind his ear, consistent with being
punched. Mendoza also knocked Norris down, face-first, so
quickly that he did not attempt to brace his fall. (Cf. People v.
Spring (1984) 153 Cal.App.3d 1199, 1205 [single punch to 64-
year-old was “too weak to knock him off his feet or render him
unconscious” and not an act involving high degree of probability
of death].) When Mendoza punched Norris, Norris was looking
away and posed no threat. Norris thus did not see Mendoza and
had no opportunity to defend himself or anticipate his fall. The
sucker punch caused him to fall, hit his head on the concrete
sidewalk, and die. (Cf. Cravens, supra, 53 Cal.4th at p. 509
[“sucker punch” that was “without warning” guaranteed fall on
“very hard” surface].)
This evidence permitted the jury to reasonably find that
Mendoza’s act of punching Norris involved a “high degree of
probability” of death. (Reyes, supra, 14 Cal.5th at p. 989.) The
jury could conclude that punching an older man, with a cane, in
the back of the head, such that he could not defend himself or
anticipate the fall, over concrete, “was dangerous to life in more

9
than a vague or speculative sense” because it “involved a high
degree of probability that the act would result in death.” (Pierce,
supra, 114 Cal.App.5th at p. 529; see People v. Tubby (1949) 34
Cal.2d 72, 75, 76, 79 [sufficient evidence for second degree
murder conviction after defendant, without provocation, struck
elderly man with fists, resulting in the man’s death from skull
fractures and intercranial hemorrhage].) The evidence was
sufficient to establish the objective component of implied malice
murder.
There was also sufficient evidence to support the subjective
component of implied malice murder. “This component is
ordinarily proven by illustrating the circumstances leading to the
ultimate deadly result.” (People v. Guillen (2014) 227
Cal.App.4th 934, 988, citing People v. Nieto Benitez (1992) 4
Cal.4th 91, 107.) The jury could reasonably infer Mendoza’s
subjective knowledge that his act of punching a vulnerable
victim, hard, in the back of the head, from a running start, over
concrete, without notice, was “predictably dangerous to human
life.” (Cravens, supra, 53 Cal.4th at p. 510; see People v. Palomar
(2020) 44 Cal.App.5th 969, 977 (Palomar) [sucker punch onto
concrete guaranteed fall on hard surface, the consequences of
which would be known to defendant].)
Additionally, Mendoza’s actions after the punch supported
the mental component of implied malice. The video showed that
Mendoza punched Norris, stood over him while he was on the
ground without rendering assistance, and then walked away.
There is no evidence that he demonstrated any concern for Norris
or sought help for him. (Cravens, supra, 53 Cal.4th at p. 511
[defendant’s conduct after sucker punch supported finding of
implied malice; defendant took no steps to determine victim’s

10
condition or obtain help and laughed about victim’s injuries];
Palomar, supra, 44 Cal.App.5th at p. 978 [defendant’s failure to
ascertain the victim’s condition or secure emergency services
after sucker punch “manifested a callous indifference to human
life” sufficient for implied malice].)
To the extent Mendoza relies on People v. Vasquez (2018)
30 Cal.App.5th 786, 796, for the proposition that generally blows
inflicted with a fist are insufficient to show implied malice, we
find it inapposite. Vasquez did not conclude that there was a lack
of substantial evidence to support a jury’s finding of implied
malice. It concerned whether there was sufficient evidence to
support an instruction on the lesser included offense of
involuntary manslaughter.2 Moreover, while it is true that
generally, assault with a fist, in the absence of aggravating
circumstances, will not rise to the level of malice aforethought for
murder (ibid., quoting Cravens, supra, 53 Cal.4th at p. 508), here
there were aggravating circumstances. (Cf. Cravens, at pp. 508–
509 [vulnerable victim; hard, sucker punch over concrete without
warning].)
Viewing the record in the light most favorable to the
verdict, there is substantial evidence to support the jury’s finding
of implied malice murder.
II. Implied Malice Instruction, Prosecutorial Error, and
Ineffective Assistance of Counsel
Mendoza contends that several instructional errors
misstated the law as to implied malice. He further asserts that
statements by the prosecutor and related errors by the trial court
and defense counsel compounded those instructional errors, with

2 The jury in this case was instructed on involuntary
manslaughter.

11
the effect of reducing the prosecution’s burden of proof, thereby
violating his right to due process. We reject the argument that
the trial court erred in its jury instruction on implied malice, but
we agree that the prosecutor prejudicially misstated the law
during closing arguments. We conclude that defense counsel’s
failure to object to the prosecutor’s misstatements constituted
ineffective assistance of counsel.
A. Background
i. Implied malice instructions
The trial court instructed the jury with CALCRIM No. 520,
which, in relevant part, stated that there were two kinds of
malice aforethought: express and implied malice. The instruction
explained that the defendant acted with implied malice if:
“1. He intentionally committed the act;
“2. The natural and probable consequences of the
act were dangerous to human life in that the act
involved a high degree of probability that it would
result in death;
“3. At the time he acted, he knew his act was
dangerous to human life;
“AND
“4. He deliberately acted with conscious disregard
for human life.”
At the prosecutor’s request, the trial court also added the
following language to the standard jury instruction: “An act
dangerous to human life need not be an act that would certainly
lead to death. The probability of death from the act must be more
than remote or merely possible.” In granting the prosecutor’s
request, the trial court explained: “[The prosecutor] correctly
points out that the authority for this is People [v.] Reyes. And

12
this . . . was actually mentioned in the Bench Notes of CALCRIM
[No.] 520.”3 Defense counsel did not object.
ii. Prosecutor’s closing argument
During his closing argument, the prosecutor read the four
elements of implied malice from CALCRIM No. 520, including the
“second element, ‘the natural and probable consequence[s] of the
act were dangerous to human life and the act involved a high
degree of probability that it would result in death.’ ” The
prosecutor told the jury: “I’m gonna talk about that in just a
moment.” After discussing other aspects of implied malice, the
prosecutor returned to the second element, stating: “So
dangerous to human life—right?—It first says ‘the act involved a
high degree of probability that it will result in death.’ It gives
you this definition right down here. That ‘an act dangerous to
human life need not be an act that will certainly lead to death.
The probability of death from the act must be more than remote
or merely possible.’ Right?”
The prosecutor continued: “So this is telling you what that
means in that second element. This act [is] dangerous to human
life. Right? It doesn’t have to be that every time that you punch
someone—is it possible—right? That Mr. Norris could have been
punched in the back of the head, fell down and hit his head on
the pavement and not died? Of course. Of course that’s possible
and that could have happened. Right? [¶] So it’s not an act that

3 The authority section following CALCRIM No. 520 stated:
“ ‘Dangerous to Human Life’ Defined. People v. Reyes (2023) 14
Cal.5th 981,989 [309 Cal.Rptr.3d 832, 531 P.3d 357 ].” (Judicial
Council of Cal., Crim. Jury Instns. (2024) Authority to CALCRIM
No. 520, p. 251.) However, the notes did not specifically identify
the language used in the supplemental instruction here.

13
would certainly lead to death in every situation. And that’s not
required. But the probability from that act happening . . . sucker-
punching an older person walking with a cane over concrete, the
probability of death from that has to be more than something
that is so remote or just merely possible. [¶] And, certainly, that
is the case that we have here. Right? Anybody knows that if you
fall down—right?—and hit your head on the concrete, it is more it
[sic] than just a remote possibility that you could die, especially
when you are an older person, you’re walking with the assistance
of a cane. It’s certainly more than something that is just remote
or merely possible.”
After discussing involuntary manslaughter and providing
examples of what might qualify as acting in a reckless way that
creates a high risk of death, as compared to conscious disregard
for human life, the prosecutor said: “But these examples . . . and
we talked about this, about these factors that can change an act
into having more than a remote or mere possibility of causing
death. So when you have these factors, this is what an
involuntary manslaughter is. And we have nothing that is even
close to this in this case. [¶] So, finally, you have murder, which
means implied malice. ‘An act that will certainly lead to death is
not required. The probability of death from the acts must be
more than remote or merely possible. A conscious disregard for
human life.’ ”
Near the end of closing, the prosecutor reminded the jury,
“I have to prove my case to you beyond a reasonable doubt,” and
pointed to an instruction stating that “ ‘proof beyond a reasonable
doubt is proof that leaves you with an abiding conviction that the
charge is true.’ ” The prosecutor explained what an “abiding
conviction” meant and ended by stating that in this matter it

14
would mean a “lasting belief that Mr. Mendoza showed a
conscious disregard for human life and that his actions of
punching Mr. Norris in the head like he did, that the chance of
death from that simply was more than remote or merely possible.
That’s the question that you have to ask yourself.”
In the rebuttal argument, the prosecutor reminded the jury
that because defense counsel had conceded that Mendoza was
guilty of involuntary manslaughter, the question before them
was, “Did the defendant show a conscious disregard for human
life with his actions. And if the answer to that question is, yes, if
you believe that the act, what Mr. Mendoza did was dangerous to
human life because if . . . the consequences of the act made death
more than a remote or mere possibility, if the answer to those two
questions is yes then he’s guilty of the murder.”
The prosecutor later continued: “And so I’m just going to
end on saying, again, that the choice that you have here . . . is
that they’ve already said he’s guilty of the involuntary
manslaughter. Conscious disregard for human life and the fact
that someone would know that that act, of all the factors I’ve said
many times . . . would be more than a remote or [a] mere
possibility or probability of causing death.”
B. Forfeiture
The People contend Mendoza forfeited any objection to the
jury instructions by failing to object in the trial court. Generally,
failure to object to a jury instruction forfeits a claim of error on
appeal. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 471.)
The People argue that Mendoza also forfeited his claim of error
as to any prosecutorial misconduct during closing argument by
failing to object. Again, generally “ ‘ “[a] defendant may not
complain on appeal of prosecutorial misconduct unless in a timely

15
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.” ’ [Citations.] 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 (2014) 60
Cal.4th 659, 674 (Centeno).)
We agree that Mendoza’s claims of error are forfeited.
Defense counsel did not object and there is no reason to believe
the failure to object was excused. However, Mendoza also asserts
that his trial attorney’s failure to object to the instruction or the
prosecutor’s argument constituted ineffective assistance of
counsel. (People v. Lopez (2008) 42 Cal.4th 960, 966.) We
therefore address the underlying claims of error in the context of
ineffective assistance of counsel.
C. Ineffective assistance of counsel
i. Legal principles
“The Sixth Amendment to the United States Constitution
and article I, section 15 of the California Constitution guarantee
a criminal defendant the ‘ “right to the effective assistance of
counsel at trial.” ’ (In re Lucas (2004) 33 Cal.4th 682, 721; see
ibid. [a defendant is ‘ “ ‘entitled to the reasonably competent
assistance of an attorney acting as his diligent and conscientious
advocate’ ” ’]; Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).) ‘The ultimate purpose of this right is to protect the
defendant’s fundamental right to a trial that is both fair in its
conduct and reliable in its result.’ (People v. Ledesma (1987) 43
Cal.3d 171, 215 [ ].)” (In re Long (2020) 10 Cal.5th 764, 773
(Long).)

16
To prevail on his claim, Mendoza must show that defense
counsel’s omission “ ‘fell below an objective standard of
reasonableness’ (Strickland, supra, 466 U.S. at p. 688; [citation])
in light of ‘the professional norms prevailing when the
representation took place’ [citation]. [Mendoza] must also show
‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’
(Strickland, at p. 694.) [Mendoza] ‘need not show that counsel’s
deficient conduct more likely than not altered the outcome in the
case.’ (Id. at p. 693.) It is enough to show ‘a probability sufficient
to undermine confidence in the outcome.’ (Id. at p. 694.) [¶]
‘[T]he standard for judging counsel’s representation is a most
deferential one.’ [Citation.] We ‘must indulge a “strong
presumption” that counsel’s conduct falls within the wide range
of reasonable professional assistance because it is all too easy to
conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight.’ [Citation.] ‘Unlike
a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted
with the client, with opposing counsel, and with the judge.’
[Citation.] Accordingly, we must ‘reconstruct the circumstances
of counsel’s challenged conduct, and . . . evaluate the conduct
from counsel’s perspective at the time.’ (Strickland, supra, 466
U.S. at p. 689.)” (Long, supra, 10 Cal.5th at pp. 773–774.)
ii. The prosecutor’s argument misstated the
law regarding the objective component of
implied malice
As noted above, the Reyes court reiterated that the
objective component of implied malice requires that the
defendant’s act “not merely be dangerous to life in some vague or

17
speculative sense; it must ‘ “involve[ ] a high degree of probability
that it will result in death.” ’ [Citations.]” (Reyes, supra, 14
Cal.5th at p. 989, italics added.) Two citations followed this
statement in Reyes, one to People v. Knoller (2007) 41 Cal.4th
139, 152 (Knoller), for the same proposition, and a second to
Justice Liu’s concurring opinion in Cravens. The citation to
Cravens included a parenthetical quote: “[‘Although an act that
will certainly lead to death is not required, the probability of
death from the act must be more than remote or merely
possible.’]” (Reyes, at p. 989, quoting Cravens, supra, 53 Cal.4th
at p. 513 (conc. opn. of Liu, J.).) This quoted sentence was the
source of the additional language the court added to CALCRIM
No. 520 in this case.
In his concurring opinion in Cravens, Justice Liu
commented on the “two lines of decisions that attempt to
delineate the objective and subjective components of implied
malice.” (Cravens, supra, 53 Cal.4th at p. 512 (conc. opn. of Liu,
J.).) One test derived from People v. Thomas (1953) 41 Cal.2d
470, the other from People v. Phillips (1966) 64 Cal.2d 574. The
concurrence described the Thomas test: “Under Thomas, the
objective component of implied malice requires ‘an act that
involves a high degree of probability that it will result in death.’
(Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.).)
This test recognizes that the ultimate inquiry involves a
determination of probability: Although an act that will certainly
lead to death is not required, the probability of death from the act
must be more than remote or merely possible. The Thomas test
strikes that balance by requiring a ‘high degree of probability’ of
death.” (Cravens, at p. 513 (conc. opn. of Liu, J.).)

18
Justice Liu’s concurrence did not suggest that “ ‘a high
degree of probability that [the act] will result in death’ ” is the
equivalent of a probability of death that is simply “more than
remote or merely possible.” (Cravens, supra, 53 Cal.4th at p. 513
(conc. opn. of Liu, J.).) Thus, while stating that implied malice
requires an act that creates a probability of death that is “more
than remote or merely possible” is accurate, it is also potentially
misleading because it does not explain how much more than
remote or how much greater than merely possible the probability
must be. The law answers this question, however. Implied
malice requires a high degree of probability that the act will
cause death.
Thus, although the jury instruction given here was not an
incorrect statement of the law, the added language created an
ambiguity about what degree of probability of death was
necessary for the jury to find the natural and probable
consequences of Mendoza’s act were dangerous to human life.
The instruction deleted “although” from the language of Justice
Liu’s concurrence in Cravens, and created two sentences instead
of one. As a result, it failed to describe a continuum of
probability in which “high degree” falls somewhere between an
act that would certainly lead to death and an act that is nothing
more than remote or merely possible. This risked creating the
impression that “a high degree of probability” is equivalent to
“more than remote or merely possible.” The prosecutor exploited
that ambiguity in his closing arguments.
Where “the prosecutor is alleged to have misstated the law
to the jury, this constitutes error only if (1) the prosecutor
misstated the law, and (2) there is ‘ “a reasonable likelihood the
jury understood or applied the [prosecutor’s remarks] in an

19
improper or erroneous manner.” [Citations.]’ [Citations.]”
(People v. Collins (2021) 65 Cal.App.5th 333, 340.) We
“ ‘objective[ly]’ examine how a ‘reasonable juror’ would likely
interpret the prosecutor’s remarks [citations], bearing in mind
that ‘ “we ‘do not lightly infer’ that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]” ’ [Citation.]” (Ibid.)
Here, the prosecutor’s closing argument first informed the
jury that a high degree of probability of death is defined as a
probability of death that is more than remote or merely possible.
This was, at best, misleading. The misleading nature of the
comment was then aggravated by the prosecutor’s repetition of
“more than remote or merely possible” as the relevant standard,
divorced from the language requiring a high degree of probability
of death. In some instances, the prosecutor added words
weakening the standard even further, such as: “Sucker-punching
an older person walking with a cane over concrete, the
probability of death from that has to be more than something
that is so remote or just merely possible”; “Anybody knows that if
you fall down . . . and hit your head on the concrete, it is more . . .
than just a remote possibility that you could die”; the jurors
needed to have an abiding conviction that Mendoza’s “actions of
punching Mr. Norris in the head . . . that the chance of death
from that simply was more than remote or merely possible”; and
the jurors had to decide only two questions to find Mendoza
guilty of murder, one of which was whether Mendoza’s act was
dangerous to human life “because . . . the consequences of the act
made death more than a remote or mere possibility.”
These statements misstated the law by repeatedly
suggesting that, rather than finding Mendoza’s punch created a

20
high degree of probability of death, the jury only had to conclude
that the probability of death from the punch was more than
remote or more than merely possible.
iii. Defense counsel’s failure to object to the
prosecutor’s statements fell below an
objective standard of reasonableness
Defense counsel did not object to the prosecutor’s repeated
misstatements of the law. Mendoza contends this failure
deprived him of the effective assistance of counsel.
We acknowledge that, in general, “ ‘[if] the record on appeal
sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no
satisfactory explanation,’ the claim on appeal must be rejected.”
(People v. Wilson (1992) 3 Cal.4th 926, 936.) Moreover, “because,
in general, it is inappropriate for an appellate court to speculate
as to the existence or nonexistence of a tactical basis for a defense
attorney’s course of conduct when the record on appeal does not
illuminate the basis for the attorney’s challenged acts or
omissions, a claim of ineffective assistance is more appropriately
made in a habeas corpus proceeding, in which the attorney has
the opportunity to explain the reasons for his or her conduct.”
(Ibid.) Additionally, “ ‘[t]he 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.)
Here, however, we are constrained to conclude that there
could be no satisfactory explanation for defense counsel’s failure

21
to object to the prosecutor’s repeated misstatements of the law
during closing arguments. The defense had conceded that
Mendoza was guilty of at least involuntary manslaughter. As a
result, the only issue Mendoza could seriously contest was
whether the prosecution established that he acted with implied
malice. Central to that determination was the issue of whether
Mendoza’s single blow with a fist was an act that carried a high
degree of probability of causing death. The prosecutor’s
statements in closing argument urged the jury to employ a test
for implied malice that was inaccurate and lessened the
prosecution’s burden.
While defense counsel in some instances may make a
tactical decision not to object to misstatements of the law during
a prosecutor’s closing argument to avoid drawing attention to an
issue or confusing the jury, or because an objection was likely
futile, or because the incorrectness of the prosecutor’s statement
was less than clear, none of those decisions would have been
objectively reasonable in this case. There was no basis for
defense counsel to suspect that the trial court would overrule an
objection. She did not object at all during the prosecutor’s
argument and the court in fact sustained a prosecution objection
during the defense closing argument, suggesting a willingness to
entertain objections during closing arguments. Further, there
had been no meaningful discussion of the “more than remote or
merely possible” language when counsel and the court reviewed
the jury instructions, thus defense counsel had no reason to
believe the court would necessarily reject an objection.
Since the trial court had instructed the jury that if there
was any conflict between the jury instructions and counsel’s
arguments the jurors must follow the instructions, it may have

22
been reasonable for defense counsel not to object after the first
few times the prosecutor made the offending statements. But
this became unreasonable after the fifth, sixth, and seventh times
the prosecutor told the jury it only had to conclude that death
was more than a remote or merely possible result of Mendoza’s
act. Mendoza has established that defense counsel’s failure to
object “fell short of prevailing professional standards of
reasonableness.” (People v. Stratton (1988) 205 Cal.App.3d 87,
93.)
We also conclude that Mendoza has demonstrated “a
‘reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’
(Strickland, supra, 466 U.S. at p. 694.)” (Centeno, supra, 60
Cal.4th at p. 676.) On this issue, we find our high court’s
analysis in Centeno instructive.
In Centeno, the defendant was accused of molesting a child.
At trial, the victim’s testimony was inconsistent, her father
recanted earlier statements he had made to law enforcement
inculpating the defendant, and the defendant denied any
misconduct. (Centeno, supra, 60 Cal.4th at p. 677.) During the
prosecutor’s closing argument, she made incorrect and
misleading statements about the beyond a reasonable doubt
standard of proof, including using an improper hypothetical.
Defense counsel did not object, however, and the issue of
prosecutorial misconduct was forfeited. (Id. at p. 674.)
The Centeno court found defense counsel’s failure to object
deprived the defendant of the effective assistance of counsel.
“[T]he problems with the prosecutor’s argument were not difficult
to discern.” (Centeno, supra, 60 Cal.4th at p. 675.) The improper
argument was “particularly misleading” and struck “at the most

23
fundamental issue in a criminal case.” (Ibid.) Further, the
argument was “too powerful and pivotal to dismiss as irrelevant
or trivial argument. Additionally, the argument was aimed at
lessening, not heightening, the burden of proof.” (Ibid.) The
improper argument was in the prosecutor’s rebuttal; thus,
defense counsel could not counter it with his own argument and
his “only hope of correcting the misimpression was through a
timely objection and admonition from the court.” (Id. at p. 676.)
Our high court thus could “conceive of no reasonable tactical
purpose for defense counsel’s omission.” (Ibid.)
As to prejudice, the court held that factors that could have
lessened the impact of the prosecutorial error, such as correct
instructions on reasonable doubt, defense objections to improper
argument, trial court admonitions, and strong evidence, were not
present. The jury had no reason to reject the prosecutor’s
improper hypothetical, which “did not directly contradict the trial
court’s instruction on proof beyond a reasonable doubt, but
instead purported to illustrate that standard. . . . Because there
was no timely objection, the trial court did not admonish the jury
to disregard the prosecutor’s argument.” (Centeno, supra, 60
Cal.4th at p. 676.) The court did not reinstruct on reasonable
doubt, leaving the prosecutor’s misleading or incorrect argument
as “the last word on the subject.” (Id. at p. 677.) In addition, the
case was very close. The court therefore concluded: “Given the
closeness of the case and the lack of any corrective action, there is
a reasonable probability that the prosecutor’s argument caused
one or more jurors to convict defendant based on a lesser
standard than proof beyond a reasonable doubt. Accordingly,
defendant’s convictions cannot stand.” (Ibid.)

24
The circumstances here are similar. There was no reason
for the jury to reject or question the prosecutor’s description of
the requirements of implied malice because it was facially
consistent with the court’s jury instruction. There was no
defense objection. The trial court therefore did not admonish the
jury to disregard the prosecutor’s argument or redirect the jury to
the full instruction on the law. Although defense counsel had the
opportunity to correct the prosecutor’s misstatements in the
defense closing argument, she failed to do so.
Indeed, defense counsel did not expressly discuss the
elements of implied malice in her closing argument. Defense
counsel asserted there was “substantial evidence indicating that
[Mendoza] acted without conscious disregard for human life and
did not form the intent to kill” because “there was no evidence
proving that there was any relationship, any contact, any—
anything with Mr. Norris.” She also asserted: “There was no
contact. There was no provocation. There was no implied malice.
It was one blow. There was no evidence that [Mendoza] followed
Mr. Norris or went to a park and—and fought with him. There
was no fight. [¶] . . . [¶] Mr. Norris, unluckily, did receive a blow
to the back of his head. And it was not the cause of death. The
cause of death was after the blow to the head; it is when he fell.”
After arguing that the lack of any evidence of motive meant
the jury could not “impute a malice here”; questioning the
credibility of the medical examiner; and reviewing the
instructions about circumstantial evidence and reasonable doubt,
defense counsel closed with the following: “And I—I don’t want to
make you feel like you can’t care for Mr. Norris, but the—having
the district attorney make you feel like he was—because he was
walking with a cane that he was somehow disabled or that he

25
was—he was out walking—and he seemed to be walking pretty
well. He wasn’t a doddering old man. And—and he was a
person. [¶] So to make you believe that he was on death’s door or
at least unable to walk and the cane and the—I don’t know. It
just— [¶] Be reasonable and—and find [Mendoza] guilty of
involuntary manslaughter. It is the reasonable choice.”
While some of defense counsel’s closing remarks were
relevant to whether Mendoza acted with implied malice, they did
nothing to counteract the prosecutor’s repeated implicit and
explicit argument that as long as the jury concluded Mendoza’s
act had anything more than a remote chance or mere possibility
of causing death, that satisfied the “high degree of probability” of
death element of implied malice. The prosecutor was able to
repeat this incorrect formulation of the objective component of
implied malice in his rebuttal argument, again without objection,
as the last word the jury heard before beginning deliberations.
Moreover, while the evidence was sufficient to support a
finding that Mendoza’s act carried a high degree of probability of
death (Knoller, supra, 41 Cal.4th at p. 152), we disagree with the
People’s assertion that the evidence was overwhelming. Mendoza
punched Norris only once. Norris was an older man, but, at 63
years old, not extremely aged. The surveillance video established
Norris was walking with a cane, but did not clearly demonstrate
that he was otherwise frail, unsteady, or likely to be felled by one
blow. Given the relatively few aggravating factors and the “lack
of any corrective action” (Centeno, supra, 60 Cal.4th at p. 677),
there is a reasonable probability that the prosecutor’s argument
caused one or more jurors to convict Mendoza based on an
incorrect, and less stringent, test for whether his act was
dangerous to human life.

26
Mendoza’s conviction for second degree murder must
therefore be reversed. He may be retried. We need not address
the remainder of his arguments regarding other alleged errors at
trial or error in his sentence. Mendoza does not challenge the
judgment as to the assault conviction and accompanying
sentence.
DISPOSITION
The judgment is reversed as to count one.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

HANASONO, J.

27