People v. Xotoy CA2/8

Filed 7/28/21 P. v. Xotoy CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B303336

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA112509) v.

SANTOS LEONEL XOTOY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Serna, Judge. Affirmed. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, and Charles J. Sarosy, Deputy Attorney General, for Plaintiff and Respondent. ____________________

Santos Leonel Xotoy suspected Higinio Gonzalez of seeing Xotoy’s ex-partner Elvia Lopez Gomez. Xotoy went to where Gonzalez worked, took him to the nearby alley, and shot him to death. Xotoy appeals his murder conviction on three grounds. I The first issue concerns heat of passion, a doctrine that can reduce murder to voluntary manslaughter. This was Xotoy’s defense at trial, which the jurors did not accept; instead their verdict was murder. The court gave the jury the right heat-of- passion instruction, but Xotoy argues the prosecutor misdescribed the legal standard during her closing argument. Without deciding that point, we reject this argument. Any error was harmless. A People v. Beltran (2013) 56 Cal.4th 935, 954–957 (Beltran) is the governing case. Beltran held a prosecutor “muddied the waters” making the following argument to a properly-instructed jury. (Id. at p. 954.) The text of the prosecutor’s argument is garbled and tangential, so we italicize some key words. “And the provocation has to be such that a person of average disposition to act with passion rather than judgment [sic]. We would have probably millions more homicides a year if everyone could use words that may be—although I don’t disbelieve. I don’t agree that this is what happened. It’s an illogical interpretation of the facts. You stub your toe. You’re angry, might cuss a few words. You don’t go out and kill somebody. [¶] We’ve all gotten cut off in traffic. We say the few choice words, ‘Oh, my God.’ We don’t gun the pedal and start trying to hit the car in front of us to try to kill the person who cut us off. Can you imagine if that was permissible, ‘Oh, my God, I