Opinion
B297522
10-17-2022
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO CARDENAS GUZMAN, Defendant and Appellant.
Gregory L. Rickard, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA091180, Ronald S. Coen, Judge. Affirmed.
Gregory L. Rickard, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, David E. Madeo and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, J.
INTRODUCTION
A jury convicted defendant and appellant Francisco Cardenas Guzman of first-degree murder and attempted premeditated murder. It also found gang and firearm allegations true. The trial court sentenced Guzman to 93 years to life in state prison. Guzman raises six arguments in his opening brief on appeal and additional arguments in supplemental briefing. For the reasons discussed below, we reject his contentions and affirm the judgment.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney filed an amended information charging Guzman with the murder of Jascent Warren (Pen. Code, § 187, subd. (a); count one), the willful, deliberate, and premeditated attempted murder of someone (not identified by name) in a group gathered together near Ocean Front Walk in Venice (§§ 664/187, subd. (a); count two), and possession of a firearm by a felon with two priors (§ 29800, subd. (a)(1); count three). The information alleged gang enhancements (§ 186.22, subd. (b)(1)(A)) and personal firearm use enhancements (§ 12022.53, subds. (b)-(d)) with respect to counts one and two.
All undesignated statutory references are to the Penal Code.
The jury found Guzman guilty on all counts, found the murder to be in the first degree, and found the firearm and gang allegations true. The trial court sentenced Guzman to 25 years to life for the murder, plus 25 years to life as a firearm use enhancement under section 12022.53, subdivision (d). It further sentenced him to a consecutive term of 15 years to life for the attempted premeditated murder and 25 years to life as a firearm enhancement under section 12022.53, subdivision (d). It also sentenced him to a consecutive upper term of three years on the firearm possession count. The court struck the gang enhancements.
Guzman timely appealed.
FACTUAL BACKGROUND
A. Prosecution Evidence
i. Summary
Sris Sinnathamby operated the Cadillac Hotel in Venice. Late on August 29, 2015, Sinnathamby and his friends went out to a bar. At the bar, Sinnathamby had a friendly conversation with Guzman. Guzman offered Sinnathamby and his friends a ride after last call, in the early hours of August 30, 2015. When they got to the hotel, Sinnathamby commented about the unhoused people sleeping nearby. Guzman offered to tell them to leave.
Guzman pointed a gun at Brian Keys, who was sleeping near the hotel, and threatened to kill him if he did not leave. Guzman told Keys "this is my neighborhood." Keys was scared, so he went to the pagoda area near the boardwalk. Sinnathamby and Guzman also went to that area. Keys was standing with a group of people. Guzman pointed his gun at them and fired four shots. One of the shots ricocheted and hit Keys in the leg.
When Guzman fired, one of the men in the boardwalk area, Jascent Warren, got very upset, and began yelling at Guzman. Sinnathamby temporarily got between Warren and Guzman. Guzman took his gun from his waistband, pointed it at Warren, then put it back in his waistband several times. The final time Guzman pulled the gun from his waistband, Warren moved toward him, and Guzman shot him three times, killing him. Warren was unarmed.
A video captured much of the altercation on the boardwalk. Sinnathamby testified as a prosecution witness.
ii. Events Leading up to Boardwalk Altercation
In 2015, Sris Sinnathamby operated the Cadillac Hotel and the accompanying restaurant at Ocean Front Walk and Dudley Street in Venice, California. Unhoused people lived close to the property. Sinnathamby went to the James Beach Bar three or four nights a week. He knew many regulars there, and he was aware that gang members frequented the bar.
Sinnathamby was originally charged in this case. After a preliminary hearing, Sinnathamby signed a proffer agreement with the Los Angeles County District Attorney's Office that offered him immunity for his testimony if he told the truth.
At around 10:30 or 10:45 p.m. on August 29, 2015, Sinnathamby went to James Beach with his ex-girlfriend Shannon Huntington and her friend Sandy Roja. Before going into James Beach, they stopped for drinks at the Canal Club and met Ray Wicks. Sinnathamby had previously seen Guzman at James Beach Bar many times and had made small talk with him about half a dozen times. That night, Guzman was in the attached restaurant. Sinnathamby did not know Guzman was associated with a gang, Venice 13.
At around 1:30 a.m., Sinnathamby left the bar with Huntington, Roja, and Wicks. Guzman offered the group a ride back to the Cadillac Hotel in his SUV. When the group reached that location, there were six or seven people standing around the pagodas. Two people were sleeping on the sidewalk near the door of the Cadillac Hotel.
Sinnathamby and Guzman walked around and Sinnathamby said, "Look at all these homeless people." Guzman said: "I'll tell them to go away." Guzman told the unhoused people to move and one of them, Brian Keys, responded by saying he was sleeping or that he was not doing anything.
Sinnathamby told them that the rule was to stay 10 feet away. Guzman told Keys: "I'll kill you right now." Keys took off the sheet that had been covering him and saw that Guzman was pointing a black nine-millimeter gun directly at Keys's face. Sinnathamby said, "He is no threat. Don't worry about him. Let's go and deal with the big guy." Guzman said, "This is my neighborhood." Keys got up and was scared. He moved to the pagoda area.
Sinnathamby went to the pagoda area on Ocean Front Walk and conversed with two people, "Vincent" and "Rasta." Guzman joined them. At the time, about six to eight people were in the pagoda area.
iii. Guzman Fired Several Shots, Injuring Keys
Sinnathamby was talking to Jascent Warren when Guzman fired the first shot. Sinnathamby turned around to see where the sound came from and saw Guzman firing a gun. Prior to Guzman firing the gun, Sinnathamby did not feel threatened by anyone. After the first four shots, Sinnathamby said, "Calm down, guys." Warren said, "Calm down. You [are] the [expletives] [that are firing] bullets." Sinnathamby did not see anyone with a gun besides Guzman.
Guzman was pointing the gun straight out in the direction where Keys and the others were standing. Keys felt a shot hit his shin. When struck, Keys was behind the stairs in front of a four-foot high wall. He believed the shot hit the wall then ricocheted and hit his leg. As he hobbled away, he saw Guzman shooting into the crowd.
iv. Guzman Shot and Killed Warren
Warren, who was very upset, told Guzman to put the gun away. A surveillance video of the incident showed Warren walking towards Guzman while Guzman was holding the gun. Warren yelled at Guzman with Sinnathamby in between them.
Guzman fired a shot at Warren that did not hit him. Sinnathamby and Warren were chest to chest, and Guzman was behind Sinnathamby with his gun out. As Sinnathamby stood between Guzman and Warren, Guzman repeatedly took his gun out of its holster then put it back, pointing it at Warren several times. Warren kept running behind Sinnathamby and using Sinnathamby for cover.
Huntington and Roja walked up to Sinnathamby and asked why he was not leaving. When Guzman again pulled the gun from his waistband, Warren moved forward towards Guzman. Guzman shot Warren. Prior to shooting Warren, Guzman said something like Venice is his town and "V-13." Guzman was facing Warren when he said these things. Warren had not threatened anyone or displayed any weapon.
After shooting Warren, Guzman raised the gun toward the pagodas and took additional shots. Then he ran back to the black SUV. After Guzman left, three people dragged Sinnathamby to the pagoda area. They beat Sinnathamby and hit him with a metal pole. Sinnathamby suffered a broken eye socket, nose, and collar bone, as well as gashes on his head. Huntington and Roja helped Sinnathamby back to the hotel, and Sinnathamby called the police.
When the police arrived around 2:10 a.m., Warren was unconscious, bleeding profusely, and not breathing. The autopsy revealed that one of the three bullets that hit him punctured his right pulmonary artery, causing severe bleeding and death. Nine shell casings were found at the crime scene.
v. Gang Evidence
Los Angeles Police Officer David Dalzell testified as a gang expert about the Venice 13 criminal street gang. He testified regarding the gang's territory, membership, primary activities, and predicate offenses. He also testified about the importance of respect in gang culture, and that gang members would feel disrespected if non-gang members disobeyed them or challenged them to a fight, particularly in the gang's territory.
Officer Dalzell identified four Venice 13 gang members in a photograph and opined that three of them, Guzman, Ricky Mejia, and Apolina Lopez were mid-level to high mid-level members. In the past, Guzman voluntarily admitted to police that he was a member of Venice 13.
Gang officers also testified at trial that Ricky Mejia murdered a fellow gang member, Vincent Vasquez. This murder was used as one of the predicate offenses with respect to the Venice 13 gang. Evidence was offered that Guzman was with Mejia and Vasquez in a nightclub at some point on the night Mejia murdered Vasquez, though no evidence was offered that Guzman was present during or participated in that murder.
Based on a hypothetical question assuming facts similar to this case, Officer Dalzell opined the shooting would benefit Venice 13 because it involved shooting someone who disrespected the gang's authority. It would also benefit the gang by elevating the stature of the gang member himself.
On December 13, 2013, James Karhu, who lived between Speedway and Ocean Front Walk in Venice, recorded a fight outside his window and provided that recording to the police. The video showed Lopez hitting a person on the ground with a lawn chair. Guzman was present as the beating occurred. The person on the ground, Heriberto Ramon, was a documented member of Venice 13. Lopez could be heard in the video saying, "I don't share the beach," and "I'm Polo from Venice gang." In Officer Dalzell's opinion, Lopez was protecting the area where he sold narcotics, and the victim might have been impinging on his territory.
B. Defense Evidence
i. Guzman's Testimony
Guzman testified to the following. He joined Venice 13 when he was 13 years old, but he left the gang in 2014. Venice 13 considered the oceanfront walk near the Cadillac Hotel to be its territory. Guzman had two prior felony convictions, and it was illegal for him to possess a firearm when the shootings occurred. The video showing him present when Lopez beat a man with a folding chair did not capture the beginning of the incident, during which the man provoked him and Lopez.
The night of the boardwalk shooting, Sinnathamby expressed annoyance over the "bums," so Guzman got out of his SUV and asked Rasta to leave. Rasta argued with him but agreed to go sleep on the beach. When Guzman asked Keys to leave, Guzman had a gun with him in a pouch that hung on his side. Sinnathamby walked toward the beach and argued with six or seven transients.
Guzman heard someone say, "[expletive] these guys, grab your [expletive]." Thinking someone might pull out a weapon, Guzman pulled out his gun and fired three or four warning shots. He aimed toward the parking lot to the right of the pagodas; not straight up in the air. He fired the shots because he perceived an immediate threat of death.
After the warning shots, "it was total chaos," and Warren tried to come towards Guzman. Guzman then fired additional warning shots toward the beach. Warren warned Guzman to leave or be killed. Warren had nothing in his hands. Warren started running at Guzman. Guzman took one step back and pulled out his gun and fired a shot. Guzman fired two more shots at Warren. Warren never touched Guzman. No one on the boardwalk that night ever touched Guzman.
ii. Testimony of Other Defense Witnesses
Wicks testified he saw Guzman fire four to six shots to the right of the pagodas in the direction of the ocean. Roja testified that when Guzman fired his first shots, the gun was pointed randomly in the air, as though Guzman was trying to scare someone. Before Guzman shot Warren, both Roja and Huntington feared for their own lives and those of their friends. Roja could not believe Guzman had shot Warren, because Warren had not done anything that would have justified the shooting.
DISCUSSION
I. Substantial Evidence Supports Guzman's Attempted Murder Conviction
Guzman argues the prosecution presented insufficient evidence to support the intent to kill element of his attempted murder conviction. Specifically, he argues the evidence shows he merely intended to fire warning shots without intending to kill. For the reasons discussed below, we reject his contention.
A. General Legal Principles
In reviewing a judgment for sufficiency of the evidence, a court must review the record in the light most favorable to the judgment to determine if there is substantial evidence from which any rational trier of fact could find each element of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Staten (2000) 24 Cal.4th 434, 460.) Substantial evidence is evidence that is "'reasonable in nature, credible, and of solid value.'" (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence includes circumstantial evidence and reasonable inferences based on that evidence. (In re James D. (1981) 116 Cal.App.3d 810, 813.) In reviewing a sufficiency claim, we "presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) "Because we must draw all inferences in support of the judgment, [a] defendant bears an 'enormous burden' when challenging the sufficiency of the evidence." (People v. Vasco (2005) 131 Cal.App.4th 137, 161 (Vasco).) We accord due deference to the jury and do not substitute our own evaluation of a witness's credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa).)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187.) A failed attempt to commit murder is punishable under section 664. Murder may be committed without the intent to kill (upon a finding of implied malice), but attempted murder requires the specific intent to kill (express malice). (People v. Stone (2009) 46 Cal.4th 131, 139-140.) Express malice is shown when the assailant either desires the victim's death or knows to a substantial certainty that death will occur. (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).) When a person intends to kill one victim, but in the process kills another, the person is still guilty of murder under the doctrine of transferred intent. (People v. Shabazz (2006) 38 Cal.4th 55, 62-63.) This doctrine is inapplicable to attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 331.) "'There is rarely direct evidence of a defendant's intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant's actions.' [Citation.]" (Smith, supra, at p. 741.)
B. Analysis
Applying these principles, we reject Guzman's contention that the record does not contain substantial evidence to support the intent to kill element of his attempted murder conviction. As the Attorney General points out, before Guzman walked out to the boardwalk, he pointed his gun at Keys's face and said "I'll kill you right now." Guzman's statement plainly supported an intent to kill, and it was not unreasonable for the jury to take Guzman at his word. Guzman's statement regarding his intent, coupled with the fact that he fired four shots toward the crowd of unhoused people (one of which ricocheted and hit Keys), provides substantial evidence from which the jury could reasonably infer he harbored the intent to kill. (Smith, supra, 37 Cal.4th at p. 741 ["'The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . ." [Citations.]"].) For these reasons, we find unpersuasive Guzman's argument that the fact he fired a shot at Warren but missed should invalidate the jury's finding of intent to kill. Nor are we persuaded that the jury's intent to kill finding is unreasonable merely because the people in the group did not rapidly flee the scene after Guzman fired. It is possible they were confused, frightened, and in shock. And although Guzman testified he was firing warning shots without the intent to hit anyone, we defer to the jury's evaluation of his credibility. (Ochoa, supra, 6 Cal.4th at p. 1206.) The jury was similarly entitled to discount Guzman's testimony that he fired up in the air and Roja's testimony that Guzman fired randomly. In short, based on the evidence presented at trial, Guzman cannot satisfy the "enormous burden" he faces with respect to his sufficiency challenge. (Vasco, supra, 131 Cal.App.4th at p. 161.)
II. Guzman's Substantial Evidence Arguments Regarding Self-Defense and Imperfect Self-Defense
Guzman next argues the record contains insufficient evidence to support his conviction for first-degree murder because the prosecution failed to prove beyond a reasonable doubt that Warren's killing was not justified by self-defense or committed as a result of imperfect self-defense. Applying the principles of law related to substantial evidence discussed above, we reject Guzman's contentions. Guzman was the only person on the boardwalk displaying a gun, and as the initial aggressor, he could not claim self-defense. Given the circumstances, the jury was presented with substantial evidence from which it could conclude beyond a reasonable doubt that Guzman did not act in self-defense or imperfect self-defense, and instead was guilty of first-degree murder.
A. Background
The court instructed the jury on principles of justifiable homicide in self-defense. (CALJIC No. 5.12.) The court properly instructed the jury that the burden was on the prosecution to prove beyond a reasonable doubt the homicide was not justified. (CALJIC No. 5.15; see People v. Curtis (1994) 30 Cal.App.4th 1337, 1353.) The court also instructed the jury on imperfect self-defense. (CALJIC No. 5.17.) It further instructed the jury using CALJIC No. 8.50, which stated that to establish that a killing was murder and not manslaughter, the state must prove beyond a reasonable doubt that the killing was not done in the actual, though unreasonable, belief in the need to defend against imminent peril to life or great bodily injury. Thus, by finding Guzman guilty of Warren's murder, the jury necessarily concluded the prosecution had met its burden regarding self-defense and imperfect self-defense.
B. Applicable Legal Principles
A defendant is not guilty of murder if the killing was justified by self-defense. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey).) "For [a] killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend." (Ibid.) If the belief subjectively exists but is objectively unreasonable, then the doctrine of imperfect self-defense applies, and a killing that would otherwise be murder is reduced to voluntary manslaughter. (Ibid.) "[A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances." (People v. Pinholster (1992) 1 Cal.4th 865, 966 (Pinholster), disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
C. Analysis
The record contains substantial evidence to support the jury's rejection of self-defense and imperfect self-defense. Of all the people on the boardwalk, Guzman was the only one who brandished and fired a gun. Warren never applied physical force to Guzman and had nothing in his hands. Based on these facts, it was reasonable for the jury to conclude a reasonable person would not have perceived it necessary to fatally shoot Warren. (See People v. Clark (1982) 130 Cal.App.3d 371, 378 ["Issues arising out of self-defense, including whether the circumstances would cause a reasonable person to perceive the necessity of defense, whether the defendant actually acted out of defense of himself, and whether the force used was excessive, are normally questions of fact for the trier of fact to resolve."].) Although Guzman testified he believed he was defending himself when he shot Warren, we defer to the jury's evaluation of his credibility. (Ochoa, supra, 6 Cal.4th at p. 1206.) In sum, the jury could reasonably conclude Guzman (1) did not actually believe in the need to defend himself or others, negating both self-defense and imperfect self-defense; (2) did not reasonably believe in the need to defend himself or others, negating self-defense; and (3) used force that greatly exceeded what was reasonable under the circumstances, negating both self-defense and imperfect self-defense. (Humphrey, supra, 13 Cal.4th at pp. 1082-1083; Pinholster, supra, 1 Cal.4th at p. 966.) We therefore conclude the jury's verdict is supported by substantial evidence.
Additionally, as the Attorney General points out, neither perfect nor imperfect self-defense may be invoked "by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified." (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) This principle forecloses Guzman's arguments because his murder of Warren occurred immediately after Guzman shot at Keys and the others.
III. Substantial Evidence Supports Premeditation and Deliberation
Guzman next argues the record contains insufficient evidence of premeditation and deliberation to support his first-degree murder conviction. We are unpersuaded.
The unjust killing of a human being is presumed to be murder in the second, rather than first, degree. (People v. Anderson (1968) 70 Cal.2d 15, 25.) First degree murder has the additional elements of willfulness, premeditation, and deliberation. (People v. Gomez (2018) 6 Cal.5th 243, 282.) "The very definition of 'premeditation' encompasses the idea that a defendant thought about or considered the act beforehand." (People v. Pearson (2013) 56 Cal.4th 393, 443.) "'"Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance.'" (People v. Casares (2016) 62 Cal.4th 808, 824, disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.) "Premeditation and deliberation can occur in a brief interval." (People v. Memro (1995) 11 Cal.4th 786, 863 (Memro).) Some basic categories of evidence sufficient to support a finding of premeditation and deliberation include planning, motive, and a deliberate manner of killing. (People v. Morales (2020) 10 Cal.5th 76, 88-89.) This list of categories is not exhaustive, and reviewing courts need not accord these categories any particular weight. (Id. at p. 89.)
Applying these principles, and reviewing the facts adduced at trial in the light most favorable to the judgment, we conclude Guzman cannot satisfy his enormous burden of showing no reasonable jury could find premeditation and deliberation. (Vasco, supra, 131 Cal.App.4th at p. 161; Jackson v. Virginia, supra, 443 U.S. at pp. 318-319.) After pointing a loaded gun at Keys and threatening to kill him, Guzman brought the gun onto the boardwalk. He then fired numerous shots at Keys and the people around him, with one shot ricocheting and hitting Keys. When Warren approached, Guzman pulled out his gun and shot him. Although it is possible Guzman may not have spent much time considering the act of killing Warren, our Supreme Court has explained that "[p]remeditation and deliberation can occur in a brief interval." (Memro, supra, 11 Cal.4th at p. 863; see ibid. ["'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."'"].) And although reasonable minds could perhaps disagree about whether Guzman premeditated and deliberated the murder, substantial evidence supports the jury's conclusion that he did. We therefore reject Guzman's contention.
IV. The Trial Court Did Not Err in Declining to Instruct on Heat of Passion
Guzman next argues the trial court violated due process by refusing to instruct the jury on heat of passion. We review the trial court's ruling de novo and view the evidence in the light most favorable to Guzman. (People v. Brothers (2015) 236 Cal.App.4th 24, 30.) Applying this standard, we reject his contention.
A. General Legal Principles
A trial court must instruct on lesser included offenses when there is substantial evidence the defendant is guilty only of the lesser offense. (People v. Vargas (2020) 9 Cal.5th 793, 827.) "Voluntary manslaughter, a lesser included offense of murder, is defined as the unlawful killing of a human being without malice." (Ibid.) An instruction on voluntary manslaughter is required where there is substantial evidence the defendant acted in the heat of passion. (Ibid.) "Heat of passion arises if, '"at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment."'" (People v. Beltran (2013) 56 Cal.4th 935, 942.) "Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation." (Ibid.) "'[T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene.'" (People v. Beck and Cruz (2019) 8 Cal.5th 548, 649.)
B. Background
Defense counsel requested that the jury be instructed on heat of passion. The trial court refused the request, stating there was no substantial evidence of heat of passion. The court explained that Guzman only testified he was acting to protect himself and others. Defense counsel later challenged the court's ruling in a motion for a new trial. The trial court rejected the challenge, reiterating that the instruction was not supported by substantial evidence.
C. Analysis
We agree with the trial court that a heat-of-passion instruction was not supported by substantial evidence. Heat of passion voluntary manslaughter has both an objective and a subjective component. (People v. Moye (2009) 47 Cal.4th 537, 549.) "'"To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to "sufficient provocation."'" (Ibid.) "To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under "the actual influence of a strong passion" induced by such provocation." (Id. at p. 550.)
The record does not contain substantial evidence to support the objective component of heat of passion because it shows Guzman provoked Warren by firing his gun at an occupied area, hitting Keys. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 83 ["A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible."]; People v. Rich (1988) 45 Cal.3d 1036, 1112 [victim's resistance to criminal act is insufficient provocation to negate malice].) Nor does the record contain evidence that Guzman killed Warren while subjectively under the influence of strong passion induced by provocation. As the trial court correctly noted in denying defense counsel's request for the instruction, Guzman testified that he killed Warren to protect himself and others, not because of overwrought emotion. The trial court correctly declined to instruct on heat of passion.
Having concluded the trial court did not err, we need not address whether the lack of instruction was prejudicial, though we do note that because the record does not contain evidence of either the objective or subjective components of heat of passion, it follows that the lack of instruction was harmless under both People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) and Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
V. Any Purported Error in Allowing Video Evidence of a Prior Offense was Harmless
Guzman argues the trial court erred under state law and federal due process by allowing video evidence of him participating in a prior gang-related assault. Guzman specifically argues the video was unduly prejudicial and unnecessarily cumulative of other gang evidence presented at trial. For the reasons discussed below, even assuming the trial court erred by admitting the video, the purported error was harmless.
A. Procedural History
During pre-trial proceedings, Guzman moved to exclude from trial a video showing him and Lopez engaged in a beating in the Venice area on December 13, 2013. The defense argued that, because Guzman was not charged in that beating, the prosecution should not be allowed to admit the video under either Evidence Code sections 352 or 1101. The defense also raised constitutional objections in its written motion. The prosecutor explained the video showed Guzman participating in the beating alongside Lopez, and it would be offered to show Guzman's association and willingness to commit crimes on behalf of Venice 13.
The following day, July 17, 2018, the court stated it had viewed both an edited and an unedited version of the video. The court explained the video would not be admitted as Evidence Code section 1101, subdivision (b) evidence, but it would be admitted to show association with a criminal street gang. It appears the trial court was explaining in shorthand that the video was not admissible as a similar crime, but that it could be used to prove gang affiliation.
James Karhu testified he recorded the video. For authentication purposes, the video was played during Karhu's testimony. Then, the investigating officer, Officer Dalzell, explained that Lopez beat Ramon, a documented Venice 13 gang member, and declared his membership in Venice 13. Guzman later downplayed his role in the incident, testifying that the videotape did not capture what precipitated the fight. The prosecution referred to the video during closing argument.
A transcript of the video was provided to the jury to allow them to follow along. The primary person talking in the audio portion is Lopez, who repeatedly tells the victim he is "not sharing the beach" and that he is "Pollo from Venice Gang."
B. General Legal Principles
Character evidence is generally inadmissible to prove a defendant's conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) But specific acts of prior misconduct may be offered for a noncharacter purpose, such as to show intent, common plan, or identity. (Evid. Code, § 1101, subd. (b).)
Prior acts that are admissible under Evidence Code section 1101 may nevertheless be inadmissible under Evidence Code section 352. Under Evidence Code section 352, trial courts have the discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence Code section 352 guards against the admission of "evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
We review for abuse of discretion a trial court's determination that evidence is admissible under Evidence Code sections 1101 and 352. (People v. Doolin (2009) 45 Cal.4th 390, 437.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1004 (Hovarter).)
C. Analysis
Guzman contends we should review the trial court's admission of the video de novo. In support of this argument, Guzman asserts the trial court, by not explicitly weighing the video's admissibility under Evidence Code section 352, applied an incorrect legal standard. We reject Guzman's contention. The record shows the parties, in arguing about the video's admissibility, discussed the video's prejudicial effect and probative value under Evidence Code section 352. (See People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [reviewing courts may "infer an implicit [Evidence Code section 352] weighing by the trial court on the basis of record indications well short of an express statement."].)
Regardless of whether the proper standard is abuse of discretion or de novo, however, we need not decide whether the trial court's admission of the video was error. Even assuming the admission of the video was error, we conclude the purported error was harmless. The erroneous admission of prior offense evidence is analyzed for prejudice under the Watson standard. (People v. Welch (1999) 20 Cal.4th 701, 749-750.) Under this standard, the erroneous admission of evidence is prejudicial if it is "reasonably probable that a result more favorable to defendant would have resulted absent admission of th[e] evidence." (Id. at p. 750.) Excluding the video, the evidence of Guzman's guilt was overwhelming. The eyewitness testimony adduced at trial, in tandem with the video evidence, showed Guzman fired his gun on the boardwalk, wounding Keys and killing Warren, neither of whom was armed.
Guzman argues the Chapman prejudice standard should apply because the admission of the video violated his constitutional rights. Under Chapman, the burden would be on the Attorney General to prove the admission of the video was harmless beyond a reasonable doubt. (Chapman, supra, 286 U.S. at p. 24.) In light of Welch and other Supreme Court jurisprudence analyzing evidentiary issues under state law, we reject Guzman's contention that the admission of the video, if erroneous, would constitute a violation of his federal constitutional rights. We find unpersuasive Guzman's "attempt to inflate garden-variety evidentiary questions into constitutional ones . . . ." (People v. Boyette (2002) 29 Cal.4th 381, 427.) Additionally, even assuming the Chapman standard applied, we would find the admission of the video harmless for the reasons discussed above with respect to Watson.
VI. Application of Assembly Bill No. 333
The original briefing schedule in this case concluded November 4, 2021 when Guzman filed his reply brief. Soon after, on January 1, 2022, Assembly Bill No. 333 (Stats. 2021, ch. 699) ("AB 333") went into effect. Among other things, AB 333 added a new provision to the Penal Code requiring the trial court, upon request, to bifurcate the guilt and gang enhancement allegation phases of the trial. (See Stats. 2021, ch. 699, § 5 [adding § 1109].) In his first supplemental brief, Guzman argues section 1109 should apply to him retroactively, and his convictions must be reversed because his trial was not bifurcated. He also argues the trial court violated his rights to due process and a fair trial by admitting the gang evidence. For the reasons discussed below, we reject his contentions.
Though not directly relevant to the procedural change (requiring bifurcation, on request, of gang enhancement issues) raised in Guzman's supplemental brief, AB 333 also "amend[ed] section 186.22 to require proof of additional elements to establish a gang enhancement." (People v. Lopez (2021) 73 Cal.App.5th 327, 343 (Lopez).) Among other things, AB 333 "altered the [substantive] requirements for proving the 'pattern of criminal gang activity' necessary to establish the existence of a criminal street gang." (Id. at p. 345.) Prior to AB 333's enactment, "a 'pattern of criminal gang activity' mean[t] 'the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [certain enumerated] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more [persons].'" (See Lopez, at p. 345.) "[AB] 333 redefine[d] 'pattern of criminal gang activity' to require that the last of the predicate offenses 'occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed,' and that the predicate offenses 'were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offenses is more than reputational.' [Citation.] In addition, the currently charged offense cannot be used as a predicate offense under the amendments." (Lopez, at p. 345, quoting Stats. 2021, ch. 699, § 3.) AB 333 also made several other changes to the definition of "criminal street gang" and clarified the definition of "[t]o benefit, promote, further, or assist." (See Lopez, at pp. 344-345.)
Because the trial court ultimately struck Guzman's gang enhancements, he does not contend that his case warrants remand for a new trial on the gang allegations.
A. Relevant Law - Penal Code section 1109, People v. Burgos, and People v. Ramirez
As mentioned above, AB 333 added section 1109, which requires, on the request of the accused, bifurcation of the gang enhancement from the substantive charge, and trial of the substantive charge first. People v. Burgos (2022) 77 Cal.App.5th 550 (Burgos), review granted July 13, 2022, S274743, which Guzman relies on heavily in his supplemental brief, concluded that section 1109 applies retroactively where, as here, the defendant's case was not yet final when AB 333 was enacted. (Burgos, supra, at pp. 564-568; see People v. Ramos (2022) 77 Cal.App.5th 1116, 1129-1131 (Ramos) [same]; People v. Montano (2022) 80 Cal.App.5th 82, 89 [same].) The Burgos court explained that section 1109 is ameliorative in that it, among other things, increases the possibility of acquittal, thus necessarily reducing possible punishment. (Burgos, supra, at p. 567.)
Upon concluding defendants were entitled to the retroactive benefit of AB 333 and section 1109, Burgos turned to the question of prejudice. It began its analysis by expressing its opinion that not bifurcating the gang enhancements "likely constitute[d] 'structural error'" because "the nature of the proceeding would have been entirely different" absent the error. (Burgos, supra, 77 Cal.App.5th at p. 568.) Rather than holding the lack of bifurcation was structural error, however, the Burgos court instead concluded that, even assuming harmless error analysis applied, the error was prejudicial under both Watson, supra, 46 Cal.2d at p. 836 and Chapman, supra, 386 U.S. at p. 24. (Burgos, supra, at pp. 568-569.) In concluding the error was prejudicial, the court noted various weaknesses in the prosecution's case relating to issues of identity and culpability, and concluded those weaknesses were likely bolstered by the evidence that defendants were gang members. (Ibid.)
Justice Elia dissented in Burgos, expressing his belief that section 1109 is not retroactive because it "is not an ameliorative statute within the meaning of the Estrada rule." (Burgos, supra, 77 Cal.App.5th at p. 569 (dis. opn. of Elia, J.), italics in original.)
Under the Estrada rule, courts presume that amendatory statutes which lessen punishment are intended to apply retroactively. (In re Estrada (1965) 63 Cal.2d 740, 744-745.)
Approximately five weeks after Burgos was decided, in People v. Ramirez (2022) 79 Cal.App.5th 48 (Ramirez), a different panel of the Sixth District Court of Appeal disagreed with the majority in Burgos, instead holding Justice Elia was correct that "section 1109 operates prospectively only, and [a] defendant is not entitled to retroactive application of the bifurcation statute." (Ramirez, supra, 79 Cal.App.5th at p. 65, fn. omitted.) In reaching this conclusion, Ramirez adopted Justice Elia's position that section 1109 is not ameliorative because it "'does not alter the punishment for an offense, make a lesser punishment possible, or change the elements of an offense or defense.' [Citation.]" (Ramirez, supra, at p. 65.) Because Ramirez concluded section 1109 was not retroactive, it did not address whether the lack of bifurcation was harmless or what prejudice standard might apply assuming section 1109 did apply retroactively. (Ramirez. at p. 65, fn. 5.)
In addition to Ramirez, another published opinion, People v. Perez (2022) 78 Cal.App.5th 192, 207, has concluded section 1109 is not retroactive.
B. Analysis
The parties disagree about whether section 1109 is retroactive. We need not, however, resolve that issue. Even assuming it is retroactive, we conclude the admission of gang evidence here was harmless under Watson. (See People v. Gonzalez (2018) 5 Cal.5th 186, 195 ["We evaluate nonstructural state law error under the harmlessness standard set forth in Watson . . . ."]; Ramos, supra, 77 Cal.App.5th at pp. 1131-1133 [applying Watson prejudice standard and concluding it was not reasonably probable defendant would have obtained a more favorable verdict had the gang enhancement been bifurcated].)As discussed above, the evidence presented to the jury of Guzman's guilt was overwhelming. The eyewitness testimony adduced at trial showed Guzman fired his gun on the boardwalk, wounding Keys and killing Warren, neither of whom was armed. This testimony was corroborated by video evidence that was played for the jury. On this record, Guzman cannot demonstrate a reasonable probability that he would have obtained a more favorable result had the proceedings been bifurcated. Indeed, even assuming Chapman applied, we would find the error harmless under that standard as well. For these same reasons, we reject Guzman's contention that reversal is required because the gang evidence violated his rights to due process and a fair trial, as the purported error in admitting gang evidence was harmless under Watson and Chapman.
We reject the analysis in Burgos suggesting the failure to bifurcate gang allegations constitutes structural error. (Burgos, supra, 77 Cal.App.5th at p. 568.)
Additionally, as the Attorney General points out, some of the gang evidence introduced at trial was likely admissible to show motive and intent to commit the substantive offenses. (See Ramos, supra, 77 Cal.App.5th at p. 1132; Evid. Code, § 1101, subd. (b).) As discussed above, to the extent some of the gang evidence would not have been admitted had AB 333 already taken effect, the admission of that evidence was harmless under both Watson and Chapman in light of the eyewitness testimony and video evidence presented at trial proving Guzman's guilt.
VII. Guzman's Arguments Regarding People v. Renteria
In a second supplemental brief, Guzman raises two arguments in light of our Supreme Court's recent decision in People v. Renteria (2022) 13 Cal.5th 951 (Renteria). Renteria addressed what showing the prosecution must make to establish section 186.22 gang enhancements or penalties apply to a crime committed by a gang member who acts alone. (Renteria, supra, 13 Cal.5th at p. 957.) The court in Renteria did not address whether the admission of gang evidence could have any impact on the underlying convictions. Instead, the court concluded that, although the record contained insufficient evidence to support Renteria's gang enhancements, Renteria was "undisputedly subject to punishment" for the underlying offenses. (Id. at p. 973.)
Guzman first argues that, in light of Renteria, his convictions must be reversed due to the prejudicially erroneous admission of gang evidence. Guzman's argument is without merit. Our analysis above regarding other arguments Guzman has raised relating to the admission of gang evidence applies here too. As noted above, even assuming the admission of the gang evidence was error, the purported error was harmless under Watson and Chapman because the eyewitness and video evidence of Guzman's guilt was overwhelming.
Guzman next argues that under Renteria, the evidence was insufficient to prove his gang enhancements, and the enhancements must therefore be dismissed. We reject this contention as well. It is true that in Renteria, the court concluded there was insufficient evidence to support the gang enhancements. (Renteria, supra, 13 Cal.5th at p. 973.) The court explained: "The evidence at trial demonstrated that Renteria was a gang member at the time of the shootings. But the evidence did not support the inference that Renteria committed the shootings for the gang's benefit, with the specific intent to promote the criminal activities of gang members, as opposed to acting for his own, personal reasons." (Ibid.) Here, by contrast, Guzman clearly and unmistakably connected the shootings with his gang membership and his intent to promote the gang. When he first confronted Keys, he threatened to kill Keys, pointed a gun in his face, and said "This is my neighborhood." By making this statement, Guzman gave notice that his gang, Venice 13, claimed the Venice boardwalk area as its territory, and that he intended to enforce that claim by threat of violence. Then, just before shooting and killing Warren, Guzman said Venice was his town and mentioned "V-13." The trier of fact could conclude Guzman made these statements intending his actions be attributed to his gang, to further the gang's reputation for violence, and/or to intimidate witnesses by marking the crime as gang related. His gang enhancements are therefore supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, P.J., WILLHITE, J.