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 2, 2026 Get Citation Alerts Download PDF Add Note

People v. Pipping CA4/1

California Court of Appeal

• Citations: None known
• Docket Number: D084806

• Precedential Status: Non-Precedential

• Opinion

• Authorities (13)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.2K)

• PDF

Combined Opinion

Filed 2/27/26 P. v. Pipping 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D084806

Plaintiff and Respondent,

v. (Super. Ct. No. FVI23002660)

BRIAN FREDERICK PIPPING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino
County, John P. Vander Feer, Judge. Affirmed.

Jason L. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Senior Assistant Attorney General,
Arlene A. Sevidal, Supervising Deputy Attorney and Randall D. Einhorn,
Deputy Attorney General for Plaintiff and Respondent.
A jury convicted Brian Frederick Pipping of second degree murder
(Pen. Code, § 187, subd. (a)) and possession of a firearm by a convicted felon
(Pen. Code, § 29800, subd. (a)). It found true allegations with respect to the
murder that Pipping personally discharged a firearm proximately causing
death (Pen. Code, § 12022.53, subds. (c), (d)). In a bifurcated proceeding, the
court found true allegations that Pipping had a prior strike conviction (Pen.
Code, § 667, subds. (b)-(i)) and a prior serious felony conviction (Pen. Code,
§ 667, subd. (a)(1)). It sentenced Pipping to a 60-year-to-life prison term: 30
years to life (15 years to life, doubled) for the murder, a consecutive term of
25 years to life for the firearm enhancement, and five years for the serious
felony prior conviction. The court imposed a concurrent upper term of six
years (three years, doubled) for the firearm charge.
Pipping contends his counsel was constitutionally ineffective for failing
to object and seek an admonishment to what he asserts was the prosecutor’s
misconduct in closing arguments—remarks that he claims lessened the
prosecution’s burden of proof similar to those requiring reversal in People v.
Centeno (2014) 60 Cal.4th 659 (Centeno). He argues that because the case
was close, his counsel’s failing was not harmless, requiring reversal of his
convictions. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
In August 2023, Y.R. drove a friend to the desert, arriving at a dark
area on a dirt road surrounded by trailers. While there, Y.R. heard what she
thought were three firecrackers or gunshots, and someone yell either “No, no,
no,” or “Go, go, go.” Scared, Y.R. began to drive away but felt a thump in the
back of the truck she was driving. Y.R.’s friend looked back and saw
somebody in the back of the truck. She tried to tell him to get up, but he was

2
unresponsive. As Y.R. drove off, she saw headlights in her rear-view mirror
and heard a loud vehicle. Based on the man’s condition, Y.R. drove to the
hospital. Y.R. has non-Hodgkins lymphoma. For that condition, she took
pain medicine daily and wore a Fentanyl patch, which affected her ability to
recall what happened.
R.M. was in the same area that night. After she heard gunshots, she
saw a loud compact vehicle chasing a truck. R.M. called police.
Early in the morning on August 3, 2023, police officers responded to a
call about a gunshot wound victim at the Barstow Community Hospital.
They spoke with the victim, Shaun Milazo, who told them that “Red” shot
him. Milazo was known by some as “Freak.” Milazo later died from
complications from the gunshot wounds.
In June 2023, D.H. lived with his girlfriend K.W., as well as Pipping
and Pipping’s girlfriend, S.D. Pipping went by the nickname “Red.” D.H.
saw in that time frame that Pipping had two nine-millimeter pistols. Around
July or August 2023, D.H. heard Pipping talk a lot about Freak and doing
him harm. Pipping admitted to D.H. that he shot Freak in the stomach three
or four times. Pipping told D.H. that he put his hand over his car door and
shot. Pipping also told D.H. that he thought Freak had snitched on him in
regard to a case Pipping was involved in. Pipping told D.H. that before the
shooting, Milazo said, “Please don’t shoot me. Please don’t kill me.” Pipping
drove a dark Scion that had a loud exhaust.
On the morning of the shooting, D.H. was in Arizona. He called K.W.
that morning and heard Pipping tell her to say he was home all night. After
the shooting, D.H. heard Pipping say he was going to give the Scion away.
He also saw S.D. hold up a nine-millimeter gun from a red tool bag and say
that she was going to get rid of it. D.H. never saw the gun again. D.H.

3
testified he had been a daily methamphetamine user at the time of the
incidents, but considered himself a functioning addict so his drug use did not
impact how he remembered events.
In July 2023, K.W. also heard Pipping talk about Freak. Pipping
stated that someone had stolen a truck from his friend L.F., and he was going
to do something about it. Pipping mentioned Freak daily, getting angrier
each day, and said he was going to “put him on ice” and “get him.” To K.W.,
that meant “[s]omething lethal.” K.W. recalled that among other vehicles,
Pipping owned a two-door matte black Scion that was loud and a black F-450
pickup truck. K.W. testified that in the early morning hours of August 3,
2023, Pipping banged on her bedroom door and loudly said, “wake up 911
emergency” and, “If the cops come, I’ve been here all night.” Later, K.W.
asked Pipping what had happened, and he bragged, “We got him, we shot
Freak.” K.W. looked up Milazo on social media to see if he survived the
shooting, and Pipping confirmed that Milazo was Freak.
Within a day or two after August 3, 2023, a police vehicle came by
K.W.’s house, and Pipping “freaked out.” Pipping told K.W. to put on his
jacket and hat and go out front so they would think she was him. K.W. heard
Pipping say he was going to get rid of his Scion; that “[i]t needed to be gone.”
She later saw him clean out the inside of the car. Days later she was
bringing Pipping and his friend L.F. something to drink and she heard
Pipping say that he shot Freak four times. K.W. testified that Pipping was
never without a gun; on one occasion after the shooting she heard a gunshot
from Pipping’s bedroom and thought he had killed himself. When she went
to look, she found him sitting up with a look of exasperation. K.W. surmised
that because Pipping was “running, running, running” and not sleeping, he

4
had fallen asleep with his black handgun and it fired through the roof of the
house when his hand fell on it.
Pipping was arrested on August 18, 2023. After his arrest, K.W. was
not entirely forthcoming with police out of fear, but once she learned Milazo
had died, K.W. reached out and told them everything she knew. Three or
four days after Pipping’s arrest, K.W. saw S.D. with two black handguns in a
tool bag. S.D. said she was going to get rid of them and left the house. At one
point, Pipping called K.W. from jail and claimed everyone was lying, telling
her, “I might use you as a character witness because I was home all night and
you know it, you know what I mean?” and “I’m gonna use you if need be. I’m
gonna use you as my witness that I was home all night.” Though K.W. had
used marijuana and methamphetamine in the past, she was not under the
influence during the incidents with Pipping that she recounted at trial.
Defense Evidence
At trial, Pipping denied shooting Milazo, though he admitted he was at
the location where the shooting occurred. He denied telling the other
witnesses that he had shot Milazo or was going to put him “on ice.” Pipping
testified that he was on good terms with Milazo, and they were friends. He
believed Milazo had stolen a black pickup truck from L.F. but Milazo offered
the truck to him, and Pipping wanted it, so he bartered a deal for it from
some third parties who had purchased it from Milazo.
Pipping testified that on the morning of Milazo’s shooting, Milazo had
called Pipping, so Pipping drove his Scion out to a wrecking yard to meet
with him. Pipping admitted his Scion had a loud exhaust. Milazo, who was
in the truck with Y.R., came up to his car and was leaning in to talk, then
Milazo said he saw a person with a gun. Pipping testified he saw another
person, J.R., pointing a gun then firing three times. Y.R.’s truck fishtailed

5
and drove away. Pipping followed Y.R.’s truck out of the wrecking yard and
drove away in another direction. Pipping testified he went home without
calling police because he was afraid for his life.
At trial, when asked about a jail call he had made to S.D. about a
location next to the house, he testified that he was referring to a Milwaukee
bag where he kept his money. He stated on cross-examination that he kept
$6,800 in the bag, which was buried on the property where he lived with the
others.
Closing Arguments
The prosecutor began her arguments by stating: “On August 3rd, 2023,
the defendant shot and killed Shaun Milazo. The evidence proves this. The
testimony proves this. Logic and reason prove this. The defendant’s actions
prove this. All of that combined, prove that . . . Pipping committed first-
degree murder, and his victim was . . . Milazo.” She discussed the degrees of
murder and intent, summarized the evidence of Pipping’s planning, and went
over the gun allegations and the felon-in-possession charge. She then turned
to the evidence from the witnesses: “I want to talk a little bit about [K.W.]
and [D.H.] and what they said. And there is a CALCRIM instruction about
witness credibility, and what you can use to evaluate the veracity and
honesty of their testimony. [¶] Now, I want to point to two in particular.
Did other evidence prove or disprove anything about what [K.W.] or [D.H.]
testified? And, secondly, how reasonable is their testimony when you
consider all the other evidence in the case?”
The prosecutor summarized some of K.W.’s testimony and explained
how other evidence “proved what [K.W.] was testifying about.” The
prosecutor said: “How reasonable is [K.W.’s] testimony when you consider all
the evidence in the case? It’s reasonable to think [Pipping] shot . . . Milazo,

6
put the guns in the Milwaukee bag in his backyard, and then once he’s in
custody, he tells his girlfriend of three years, a person who is very devoted to
him, to go out to this place, dig up the guns about a foot down, and get rid of
them for me. [¶] And that’s reasonable given what [K.W.] and [D.H.] saw.
[¶] And that’s reasonable given what you heard [Pipping] tell [S.D.] himself
on August 25th and 26th. That proves what [K.W.] and [D.H.] was talking to
you about. What they testified about.”
The prosecutor referenced K.W.’s testimony that Pipping banged on her
door the morning of the shooting and told her to tell police he had been at the
house all night. She pointed out K.W.’s testimony was corroborated by the
jail call in which Pipping told her he would use her as a “character witness,
because I was home all night. . . . You know what I mean?” She recounted
that a law enforcement witness testified that they located a bullet hole in the
roof of Pipping’s bedroom, again corroborating K.W.’s testimony and proving
“her veracity, . . . her honesty.” The prosecutor said: “And how reasonable is
that testimony? It makes sense. It’s reasonable [Pipping] came home after
committing a murder, and he says, no, I need somebody to say I was here all
night, because I wasn’t. And so who do I get? I get my roommate. I bang on
her door and tell her what to say. And just to make sure, once I’m in custody,
I’m going to call her and I’m going to repeat that again. Okay. I’m going to
use you as my witness. Tell the police I was here all night.” The prosecutor
made the same type of arguments with respect to D.H.
The prosecutor then turned to Pipping’s testimony, saying, “Let’s apply
that same analysis now to what [Pipping] testified to.” She recounted that he
testified that another man, J.R., shot Milazo, but pointed out no other
witness mentioned such a person: “[Pipping] himself said it on the stand
yesterday. The first time he ever said it. First time he ever told anyone

7
about this alleged [J.R.] coming out of nowhere at the murder scene and
shooting [Milazo]. That disproves what he’s saying.” She continued:
“When—when asked about the bag, or what he was talking about with [S.D.]
on the jail call, about this thing by the tree that’s about a foot down that she
needs to get and no one else can get. He says it was a bag that had $6,000
[sic] in it. No guns. $6,000. How reasonable is that testimony? How
reasonable is that? Who has $6,000 sitting in a bag that’s buried in the back
yard that he shares with five other adults?”
“And, again, when I asked him yesterday, Why didn’t you say it was
money? And he says, I didn’t trust [S.D.]. He’s also speaking on speaker
phone. I did [sic] want D.H., I didn’t want [K.W.], who just happens to be the
very people testifying against him. I didn’t want them getting that money.
“Okay. But didn’t you just give them the location anyway, if they’re
listening in? He didn’t have an answer to that. So how reasonable is that?
Are you going to [be] shy about $6,000 in a red Milwaukee bag, after
committing a murder? Or are you going to be shy about guns? Afraid they’re
going be found? Are you going to be reaching out to your girlfriend to get rid
of that? And when you consider what [K.W.] and [D.H.] saw, that’s not
reasonable.”
The prosecutor pointed out that Pipping claimed his car had been
stolen on August 3, 2023, but that the evidence showed he gave the car away,
and also that telephone calls contradicted his claim that Milazo called him to
meet up the night of August 3, thus “this evidence disproved what [Pipping]
testified about.”
She argued it was not reasonable that Pipping claimed Milazo was like
a brother and yet Pipping never called him, messaged him or visited him in
the hospital: “We all saw the last message that [Pipping] sent to [Milazo].

8
And it wasn’t, ‘How are you?’ It wasn’t, ‘What hospital are you at?’ He
claims he had the presence of mind, he knew something bad had happened
because he claims he asked [K.W.] to Google hospital records to find the
victim. But he never once says, ‘Where are you? Are you okay?’ He never
once finds out where he is. He never goes to the hospital. He never calls.”
“When we’re talking about how reasonable is that testimony, right? If
we are going to talk about someone, you say he’s your brother, he’s your
friend, is this someone you’re never going to shoot? Is this someone you’re
never going to harm? Is it reasonable to send nothing? It’s not. It’s not
reasonable to not check up on this person. It’s not reasonable to never call
this person, to never try to find out how this person is. It’s not reasonable to
send a text or message about your car, after you saw this dear friend of yours,
this brother of yours, gets shot.
“When I asked him, ‘Why? Why didn’t you?’ Because there is not any
messages ever after August 3rd between [Pipping] and the victim. He says,
‘Oh, well the Internet went out, and I couldn’t reply until then,’ a day and a
half later. He had a day and a half to think about it, and he still says this,
‘Someone stole my car. I woke up and it was gone.’ Not, ‘I saw you get shot.
Are you okay? What hospital are you at? I’m going to come visit you. You’re
my brother.’
“Not only does the evidence disprove what he’s saying, it’s just not
reasonable when you consider everything else that’s been shown to you in
this case.”
The prosecutor argued that Pipping’s testimony was not the truth; that
everyone agreed he was at the scene, driving a loud vehicle, and that he was
the shooter. She said, “At the beginning of closing argument, I said that

9
logic, reason, testimony, evidence, it all proves that [Pipping] is the killer.
But the defendant himself, through his actions shows you he was the killer.”
DISCUSSION
I. Legal Principles
A. Prosecutorial Misconduct
“Wrongful conduct by a prosecutor ‘ “violates the federal Constitution
when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.’ ” ’
[Citation.] Prosecutorial misbehavior that falls short of this threshold
violates state law when ‘ “it involves ‘ “the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.” ’ ” ’ [Citation.]
In addressing claims of misconduct involving statements made at closing
argument, we have recognized that ‘ “it is improper for the prosecutor to
misstate the law.” ’ [Citation.] Otherwise, however, ‘ “ ‘[a] prosecutor is given
wide latitude during argument . . . .’ ” ’ ” (People v. Aguirre (2025) 18 Cal.5th
629, 706-707.)
“ ‘ “In order to preserve a claim of misconduct, a defendant must make
a timely objection and request an admonition; only if an admonition would
not have cured the harm is the claim of misconduct preserved for review.”
[Citation.] When a claim of misconduct is based on the prosecutor’s
comments before the jury, “ ‘the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of
remarks in an objectionable fashion.’ ” ’ ” (People v. Gonzales (2012) 54
Cal.4th 1234, 1275; see also People v. Henderson (2020) 46 Cal.App.5th 533,
548.)

10
B. Ineffective Assistance of Counsel
“ ‘A defendant whose counsel did not object at trial to alleged
prosecutorial misconduct can argue on appeal that counsel’s inaction violated
the defendant’s constitutional right to the effective assistance of counsel.’ ”
(People v. Aguirre, supra, 18 Cal.5th at p. 706.) On such claims, “[t]he
appellate record . . . rarely shows that the failure to object was the result of
counsel’s incompetence; generally, such claims are more appropriately
litigated on habeas corpus, which allows for an evidentiary hearing where the
reasons for defense counsel’s actions or omissions can be explored.” (People v.
Lopez (2008) 42 Cal.4th 960, 966.)
An ineffective assistance of counsel claim “requires a showing of both
deficient representation and resulting prejudice. [Citation.] To establish
prejudice, a defendant claiming ineffective assistance of counsel ‘must show
that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’ ” (People v.
Aguirre, supra, 18 Cal.5th at p. 706.) “ ‘ “ ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ” ’ ” (People v.
Rices (2017) 4 Cal.5th 49, 80; see Strickland v. Washington (1984) 466 U.S.
668, 694; People v. Henderson, supra, 46 Cal.App.5th at p. 549.)
“ ‘ “[A]n attorney may choose not to object for many reasons, and the
failure to object rarely establishes ineffectiveness of counsel.” ’ ” (People v.
Gurule (2002) 28 Cal.4th 557, 609-610.) In particular, the failure to object
to a prosecutor’s argument “ ‘ “seldom establishes counsel’s incompetence.” ’ ”
(People v. Aguirre, supra, 18 Cal.5th at p. 707.) Aguirre explains:
“ ‘Representation does not become deficient for failing to make meritless
objections’ [citation] and there may be valid reasons why counsel may choose
not to make even a meritorious objection [citations]. As one court has

11
explained, ‘From a strategic perspective, . . . many trial lawyers refrain from
objecting during closing argument to all but the most egregious
misstatements by opposing counsel on the theory that the jury may construe
their objections to be a sign of desperation or hyper-technicality.’ [Citation.]
Other tactical reasons to refrain from raising even valid claims of error in the
presentation of argument can include the interest in not drawing additional
attention to, or inviting elaboration on, comments made by opposing counsel
. . . . This all said, error in the presentation of argument may be so apparent
and impactful absent corrective measures as to render a failure to object
ineffective assistance.” (Id. at p. 707.)
C. Centeno
Because Pipping likens the prosecutor’s closing arguments to those in
Centeno, we discuss that case in depth.
In Centeno, defendant challenged convictions for child molestation,
claiming prejudicial error stemming from the prosecutor’s closing argument
in rebuttal, to which his counsel did not object. (Centeno, supra, 60 Cal.4th at
pp. 664, 674.) In her rebuttal, the prosecutor used an outline of the state of
California and a hypothetical that in a criminal trial, the issue was what
state was shown. (Centeno, at p. 665.) She asked the jury to suppose various
witnesses gave accurate, incomplete, wrong, and missing information on the
question. (Id. at p. 665.) She argued: “ ‘[I]s there a reasonable doubt that
this is California? No. You can have missing evidence, you can have
questions, you can have inaccurate information and still reach a decision
beyond a reasonable doubt. What you are looking at when you are looking at
reasonable doubt is you are looking at a world of possibilities. There is the
impossible, which you must reject, the impossible [sic] but unreasonable,
which you must also reject, and the reasonable possibilities, and your

12
decision has to be in the middle. It has to be based on reason. It has to be a
reasonable account. And make no mistake about it, we talked about this in
jury selection, you need to look at the entire picture, not one piece of
evidence, not one witness. You don’t want to look at the tree and ignore the
forest. You look at the entire picture to determine if the case has been proven
beyond a reasonable doubt.’ ” (Id. at pp. 665-666.) The prosecutor then
turned to the trial evidence, and asked the jury if it was reasonable to believe
the victim was lying, or that there was an innocent explanation for the
defendant’s conduct. (Id. at p. 666.)
Centeno disapproved of the use of this type of visual aid, in which the
outline was “presented as a given” (Centeno, supra, 60 Cal.4th at p. 670),
that is, presumed to be the outline of a state: “The use of an iconic image like
the shape of California or the Statue of Liberty, unrelated to the facts of the
case, is a flawed way to demonstrate the process of proving guilt beyond a
reasonable doubt. These types of images necessarily draw on the jurors’ own
knowledge rather than evidence presented at trial. They are immediately
recognizable and irrefutable. Additionally, such demonstrations trivialize the
deliberative process, essentially turning it into a game that encourages the
jurors to guess or jump to a conclusion.” (Centeno, supra, 60 Cal.4th at p.
669.) “[T]he most important part of [the prosecutor’s] hypothetical, the visual
aid showing the shape of California, was not supported by evidence admitted
during the imaginary trial and was also irrefutable. [¶] Additionally, the
hypothetical was misleading because it failed to accurately reflect the
evidence in this case, which was far from definitive.” (Id. at p. 670.) The
court concluded, “The prosecutor . . . left the jury with the impression that so
long as her interpretation of the evidence was reasonable, the People had met

13
their burden. The failure of the prosecutor’s reasoning is manifest.” (Centeno,
supra, 60 Cal.4th at p. 672.)
In reaching this conclusion, Centeno made clear that not all of the
prosecutor’s arguments were objectionable: “It is permissible to argue that
the jury may reject impossible or unreasonable interpretations of the
evidence and to so characterize a defense theory. [Citation.] It is permissible
to urge that a jury may be convinced beyond a reasonable doubt even in the
face of conflicting, incomplete, or partially inaccurate accounts. [Citation.] It
is certainly proper to urge that the jury consider all the evidence before it.”
(Centeno, supra, 60 Cal.4th at p. 672.) The “argument that the jury must
‘ “decide what is reasonable to believe versus unreasonable to believe” and to
“accept the reasonable and reject the unreasonable[ ]” ’ . . . ‘[does not]
lessen[ ] the prosecution’s burden of proof. The prosecution must prove the
case beyond a reasonable doubt, not beyond an unreasonable doubt.’
[Citation.] [¶] Conversely, it is error for the prosecutor to suggest that a
‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.”
(Ibid.)
Centeno explained that the prosecutor in that case “did not simply urge
the jury to ‘ “accept the reasonable and reject the unreasonable” ’ in
evaluating the evidence before it. [Citation.] Rather, she confounded the
concept of rejecting unreasonable inferences, with the standard of proof
beyond a reasonable doubt. She repeatedly suggested that the jury could find
defendant guilty based on a ‘reasonable’ account of the evidence. These
remarks clearly diluted the People’s burden.” (Centeno, supra, 60 Cal.4th at
p. 673.)
Thus, the court held defense counsel’s failure to object was ineffective
assistance, and the error prejudicial given that the case was very close,

14
involving “starkly conflicting evidence and required assessments of witness
credibility.” (Centeno, supra, 60 Cal.4th at pp. 663, 670, 674-677.)
II. Analysis
Pipping argues the prosecutor’s arguments in closing and rebuttal are
the same as those found improper in Centeno, pointing to the prosecutor’s
arguments as to the reasonableness of Pipping’s testimony compared to that
of K.W. He characterizes the prosecutor as making repeated arguments
suggesting the prosecution’s case was reasonable, thereby lightening the
burden of proof “by taking the focus off the question of guilt beyond a
reasonable doubt and instead placing it on whether appellant’s story was
more believable.” According to Pipping, the prosecutor “ ‘strongly implied
that the People’s burden was met if its theory was “reasonable” in light of the
facts supporting it.’ ” He argues: “When the prosecutor urges the jury to find
a defendant guilty by arguing the defendant’s version of an event as
unreasonable in contrast with the prosecutor’s version based on facts
favorable to the prosecution, it undermines the burden of proof.”
A. The Prosecutor Did Not Engage in Misconduct, So Counsel Was Not
Ineffective for Failing to Object
We reject Pipping’s claim of prosecutorial misconduct in closing
arguments. We ask whether Pipping has shown, “ ‘[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. [Citations.] In conducting this inquiry, we
“do not lightly infer” that the jury drew the most damaging rather than the
least damaging meaning from the prosecutor’s statements.’ ” (Centeno,
supra, 60 Cal.4th at p. 667; People v. Henderson, supra, 46 Cal.App.5th at p.
548.)

15
Here, the prosecutor did not engage in the same conduct found to be
error in Centeno. She did not use an improper visual aid with a presumptive
hypothetical that “risked misleading the jury by oversimplifying and
trivializing the deliberative process.” (Centeno, supra, 60 Cal.4th at p. 671.)
None of her remarks, at least initially, mentioned the reasonable doubt
standard, much less “confounded the concept of rejecting unreasonable
inferences with the standard of proof beyond a reasonable doubt.” (Id. at p.
673.) She did not “ ‘[e]xplain[ ]’ the reasonable doubt standard by using an
iconic image unrelated to the evidence,” which is “particularly misleading to
the jury and strikes at the most fundamental issue in a criminal case.” (Id.
at p. 675.) As Centeno characterized the problem: “The prosecutor posited an
easy example of proof beyond a reasonable doubt to reassure this jury that it
could confidently return guilty verdicts in a case not nearly so strong as her
hypothetical. The hypothetical, along with the prosecutor’s argument that
the jury could convict based on a ‘reasonable’ account of the evidence, cannot
conceivably be viewed as beneficial to the defense.” (Ibid.)
Rather, the remarks Pipping challenges plainly related to the jury’s
evaluation of the evidence and what conclusions were reasonable or
unreasonable. In context, the prosecutor was addressing the state of the
evidence as told by K.W and D.H. as well as other witnesses, and whether
Pipping’s version of events and claim of another shooter was reasonable given
all the other evidence. Viewing the argument as a whole and the prosecutor’s
discussion of the evidence in the course of making those remarks, we are not
persuaded the jury was confused regarding the People’s burden of proof or
believed Pipping had a burden to prove his own innocence. (Accord, People v.
Huggins (2006) 38 Cal.4th 175, 207 [“Closing argument in a criminal trial is
nothing more than a request, . . . to believe each party’s interpretation,

16
proved or logically inferred from the evidence, of the events that led to the
trial. It is not misconduct for a party to make explicit what is implicit in
every closing argument, and that is essentially what the prosecutor did
here”].) These remarks did not mislead the jury to believe that if they
disbelieved Pipping or found his story unreasonable, they must find him
guilty irrespective of the prosecutor’s burden of proving all of the elements
beyond a reasonable doubt. And, Pipping’s counsel in his closing argument
emphasized at the outset that “the criminal defendant is presumed to be
innocent and remains so throughout, unless and only until the prosecution
has proved their case beyond a reasonable doubt.”
Because the prosecutor’s remarks were not improper, it was not
ineffective assistance for Pipping’s counsel to withhold objections. (People v.
Cudjo (1993) 6 Cal.4th 585, 616 [“Because there was no sound legal basis for
objection, counsel’s failure to object to the admission of the evidence cannot
establish ineffective assistance”]; People v. Bradley (2012) 208 Cal.App.4th
64, 90 [“Failure to raise a meritless objection is not ineffective assistance of
counsel”].) Pipping’s counsel is presumed competent (Strickland v.
Washington, supra, 466 U.S. at p. 690), and thus we presume had he
interpreted the prosecutor’s remarks as lessening or confusing the burden of
proof, he would have raised an objection, allowing for any necessary
clarification. That he did not object indicates he correctly understood the
prosecutor was commenting on the state of evidence and urging the jury to
reject as unreasonable Pipping’s story that another individual shot Milazo.
B. Pipping Cannot Establish Prejudice
Pipping’s ineffective assistance claim fails for another independent
reason: his inability to establish prejudice. “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we

17
expect will often be so, that course should be followed.” (People v. Fairbank
(1997) 16 Cal.4th 1223, 1241; People v. Henderson, supra, 46 Cal.App.5th at
p. 549.) “It is not enough to establish prejudice for defendant to propose that
counsel’s performance had some ‘conceivable effect’ on the outcome; rather,
defendant must show a reasonable probability of a different result but for
counsel’s errors. [Citation.] Prejudice must be a demonstrable reality
established based on facts in the record, not simply speculation as to the
effect of the errors or omissions of counsel.” (People v. Tilley (2023) 92
Cal.App.5th 772, 778.)
Pipping argues his counsel’s failure to object cannot be harmless
because the case was close. He points to the timing of the jury’s
deliberations, which lasted six and a half days, as well as its request for read-
backs of the testimony of R.M. and her 911 call, Y.R., D.H., K.W., L.F. as well
as Pipping and his jail calls. He argues that the jury’s second degree murder
verdict indicates it rejected testimony that Pipping said he wanted to “ice”
Milazo.
We are not persuaded. In Centeno, the case had “starkly conflicting”
evidence and the victim’s credibility was not straightforward. The case was
close in that “[t]he crucial evaluation of [the then 10-year-old victim’s]
testimony involved many factors, including her demeanor at trial, the
inconsistencies in her various accounts, her initial denial under oath, her
unwillingness to answer numerous questions, the lack of corroborating
evidence, defendant’s denials, and testimony from [her] father corroborating
defendant’s account.” (Centeno, supra, 60 Cal.4th at p. 670.) This case
involved the victim, Milazo, identifying Pipping as the shooter to police, as
well as multiple witnesses recounting Pipping’s admissions that he had
committed the shooting. Some courts have inferred a close case based on

18
lengthy deliberations and requests for readback of testimony (see, e.g. People
v. Diaz (2014) 227 Cal.App.4th 362, 384-385 [readbacks and lengthy
deliberations, combined with juror notes indicating that other jurors were
unwilling to find the defendant guilty of murder, manifested the closeness of
the case]), but we cannot reach that conclusion here. (Accord, People v.
Walker (1995) 31 Cal.App.4th 432, 438-439.) Instead, the jury’s lengthy
deliberations and requests, as well as its decision to convict Pipping of second
degree murder, can “as easily be reconciled with the jury’s conscientious
performance of its civic duty, rather than its difficulty in reaching a decision.”
(Walker, at p. 439.)
Finally, the trial court instructed the jurors that they “must follow the
law as I explain it to you, even if you disagree with it. [¶] If you believe that
the attorneys’ comments on the law conflict with my instructions, you must
follow my instructions.” “The jury is presumed to have followed the trial
court’s instructions in the absence of any indication it was unwilling or
unable to do so.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 196.)
On this record, we cannot conclude that were it not for Pipping’s
counsel’s failure to object to the prosecutor’s closing argument remarks, there
is a reasonable probability Pipping would have secured a different outcome.
(Strickland, supra, 466 U.S. at p. 687; People v. Aguirre, supra, 18 Cal.5th at
p. 706.) There is no merit to his ineffective assistance claim.

19
DISPOSITION
The judgment is affirmed.
O’ROURKE, J.
WE CONCUR:

MCCONNELL, P. J.

KELETY, J.

20