People v. Ardon CA3

Filed 4/22/14 P. v. Ardon CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

THE PEOPLE, C072996

Plaintiff and Respondent, (Super. Ct. No. 11F02911)

v.

NESTOR JOSE ARDON,

Defendant and Appellant.

Defendant Nestor Jose Ardon is a Sureño. He, his girlfriend Sarah Chavez, and her daughter went to a cannabis dispensary on April 20, 2011. He waited in her father’s truck with her daughter while she went inside to purchase marijuana. When she returned to the truck, he began to back out of his parking space. A car, containing three Norteños, had already backed out from its parking stall nearby and was preparing to leave. Defendant continued to back out, nearly colliding with the car. The passengers and driver of the car shouted at him and threw objects at the truck. Defendant opened his door and grabbed a Leatherman tool, with knife blades exposed, from the truck. The Norteños approached, one of them kicking defendant, and they began to brawl. Defendant stabbed all three Norteños, one of them fatally. Defendant broke the

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windshield of the other car, drove away, disposed of the “knife,” and attempted to flee when Chavez’s father called the police. Defendant’s theory at trial was that he stabbed the three Norteños in self-defense or defense of others. Defendant was convicted of one count of second degree murder and two counts of assault with a deadly weapon. Defendant appeals the judgment of the trial court contending (1) the prosecutor committed prejudicial prosecutorial misconduct by misstating the “reasonable person” standard during closing argument, and (2) his trial counsel was ineffective for failing to object to the alleged misconduct. We find defendant forfeited his claim of prosecutorial misconduct at the trial court, and that there was no ineffective assistance of counsel because even if there were misconduct, defendant suffered no prejudice. Therefore, we affirm the judgment of the trial court. FACTUAL AND PROCEDURAL BACKGROUND A. The Prosecution’s Closing Argument Regarding self-defense, the prosecutor told the jury: “You all are the reasonable person. You determine what is reasonable and what is not under the circumstances. And you will be asked to compare the actions of people in this case to this reasonable standard or the reasonable person. [¶] And that’s up to you based on what an average reasonable person with an average disposition would do in those circumstances. We are going to talk a lot about that. You are going to hear me say over and over again . . . are these the actions of a reasonable person of average reasonable disposition in the same situation.” Counsel repeatedly referred rhetorically to the “reasonable person” throughout his closing argument, posing the question, in various iterations, “Is [defendant] acting like a reasonable person at that point or is he acting like something else?” The prosecution’s theory was that defendant’s actions were not self-defense but mutual combat between warring gangs.