Opinion
D072636
02-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JAIME LOPEZ et al., Defendants and Appellants.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Lopez. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant David Gonzalez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, A. Natasha Cortina, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1404885) APPEALS from judgments of the Superior Court of Riverside County, Thomas E. Kelly, Judge. Judgments affirmed, and Gonzalez's case remanded for resentencing. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant Jaime Lopez. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant David Gonzalez. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, A. Natasha Cortina, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
In a joint trial at which dual juries were empaneled, David Gonzalez was convicted of first degree murder (Pen. Code, § 187, subd. (a)) of Salvador Cendejas; and Jaime Lopez was convicted of second degree murder (ibid.) of Cendejas. As to Gonzalez, the jury further found that Gonzalez personally and intentionally discharged a firearm in committing the murder (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), and the trial court made a true finding that Gonzalez incurred a prior serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (c), (e)(1), 1170.12., subd. (c)(1)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
The trial court sentenced Lopez to prison for an indeterminate term of 15 years to life, and sentenced Gonzalez to prison for an indeterminate term of 75 years to life and a consecutive determinate term of five years.
Gonzalez challenges the sufficiency of the evidence to support findings that (1) he did not act in defense of others in committing the killing; (2) he acted with malice in committing the killing; and (3) he did not act in imperfect self-defense in committing the killing. Gonzalez further contends that the trial court prejudicially erred in (1) failing to instruct the jury with the defense-of-habitation instruction in CALCRIM No. 506 in responding to a jury inquiry during deliberations; (2) failing to give a sua sponte instruction pursuant to CALCRIM No. 3477 regarding the presumption in section 198.5 that a defendant reasonably fears an intruder in his own home will cause death or great bodily injury; and (3) allowing the prosecutor to introduce further evidence about Gonzalez's juvenile adjudication after Gonzalez testified regarding that adjudication on direct examination. Finally, Gonzalez requests that we remand this matter to the trial court for a new sentencing hearing in which the trial court may decide whether to exercise its discretion to strike or dismiss the firearm enhancement pursuant to newly enacted section 12022.53, subdivision (h).
Lopez contends (1) insufficient evidence supports the second degree murder conviction; (2) the jury instruction on self-defense and defense of others for nonhomicide crimes contained a prejudicial error; and (3) he received ineffective assistance of counsel because defense counsel did not file a motion for a new trial on the ground that the verdict was contrary to the evidence.
We conclude that except for Gonzalez's contention (with which the People agree) that we should remand for resentencing to allow the trial court to consider whether to strike or dismiss the firearm enhancement, the defendants' arguments lack merit. Accordingly, we affirm the judgments and remand Gonzalez's case for resentencing for the limited purpose of considering whether the firearm enhancement should be stricken or dismissed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. The April 16, 2014 Incident
On April 16, 2014, Lopez was 19 years old, and lived in Nuevo in Riverside County with his mother on Porter Street in a double-wide mobile home. On that evening, around dusk, Lopez was at a basketball court on Porter Street a short distance from his house with several other people. Cendejas and his neighbor Aurelio Gonzalez (Aurelio) drove down Porter Street in Cendejas's car to talk to someone about a vehicle for sale in the neighborhood. Cendejas was 21 years old, and Aurelio was 25 years old.
Because he shares the same surname with the defendant David Gonzalez, to avoid confusion we will refer to Aurelio Gonzalez by his first name, and we intend no disrespect by doing so.
While passing the basketball court, Cendejas threw some trash out of the car window, consisting of the remainder of a fast food meal and an empty beer can. After spending a few minutes looking at the vehicle for sale, Cendejas and Aurelio drove back the way they had travelled down Porter Street. As they drove by the basketball court, Lopez threw Cendejas's trash back at Cendejas's car.
Cendejas stopped the car, and both he and Aurelio got out. In an angry manner, Cendejas asked who had thrown something at his car. Lopez stepped up to say that he had done so because he did not like Cendejas throwing trash in his neighborhood. Lopez took off his shirt as if expecting a fight. Cendejas pushed Lopez two or three times. Lopez backed down, and Aurelio encouraged Cendejas to go back to the car and leave. As they were leaving, someone next to Lopez yelled out the name of a criminal street gang. Aurelio responded by yelling the name of a different gang he once belonged to. Although, according to Aurelio, Cendejas did not belong to a gang, he yelled out a made-up name of a gang. Before driving away, Cendejas also said, "I'll be back."
There was no evidence at trial that Lopez was involved with any gang.
Cendejas and Aurelio drove back to their homes, which were only a few blocks away, and then walked back toward the basketball court together. Cendejas told Aurelio that he wanted to go back and "teach them a lesson."
After the initial confrontation at the basketball court, Lopez spoke on the telephone with his 30-year-old brother-in-law, Gonzalez, about what had happened. Gonzalez was in a meeting at the church where he worked when Lopez called him, but he left to go to Lopez's location. Gonzalez was planning to go to Lopez's house in any event because he was picking up his children, who were being cared for in Lopez's house by Lopez's mother.
As Cendejas and Aurelio walked up to the basketball court, Gonzalez drove up in his truck. Cendejas approached Gonzalez, who got out of his truck. Meanwhile, Aurelio walked over to Lopez, who was at the basketball court with 18-year-old David Garcia. According to Aurelio, Lopez said, "We'll see how bad you guys are now." Garcia testified that Lopez and Aurelio were "talking trash," with Lopez saying something such as "let's do this."
Because Gonzalez's truck door was blocking everyone else's view, no one but Cendejas and Gonzalez had a good view of what happened between them after Gonzalez got out of the truck. Aurelio heard Gonzalez ask Cendejas if he was the one disrespecting Lopez, and heard Cendejas answer, "yeah." Garcia heard the sounds of a "scuffle" coming from the location where Cendejas and Gonzalez were standing. According to Gonzalez, after he and Cendejas exchanged words, Cendejas swung at him but missed, and then Gonzalez punched Cendejas in the face.
Lopez's jury also heard evidence that Lopez witnessed a physical fight between Cendejas and Gonzalez.
All of the witnesses agree that Cendejas then began running away down the street, and that Aurelio began to run as well. According to Aurelio, he started running because Cendejas said that Gonzalez had a gun. No witness reported being able to see Gonzalez pull out a gun while confronting Cendejas near his truck, and Gonzalez testified that he did not display or mention a gun at that time.
Cendejas and Aurelio ran down Porter Street in the direction of Lopez's house, which is approximately four houses away from the basketball court. Lopez saw Cendejas and Aurelio jump a low fence into the front yard of his house, and he and Garcia ran after them. Meanwhile, Gonzalez got into his truck and drove the short distance to Lopez's house, catching up to Lopez and Garcia as they ran. Lopez's mother, another woman and the woman's young grandchild were standing in the driveway to Lopez's house.
There is no evidence that Cendejas or Aurelio had any previous acquaintance with Lopez or Gonzalez, or that they knew they were running into the yard of Lopez's house. Aurelio testified that he chose Lopez's yard to run into because he saw a woman standing outside who may help him get away from Gonzalez.
Gonzalez got out of his truck with a gun, and together with Lopez, chased Cendejas and Aurelio up the driveway on the side of Lopez's house. Lopez's mother yelled at the men to stop, saying something such as "not right here" in Spanish, and stating that children were around. Although the evidence is conflicting as to the details, Gonzalez fired one or two shots in the direction of Cendejas and Aurelio as they ran toward the backyard. A witness who was inside a neighboring house reported that Gonzalez stated, "This is what you get", immediately before firing a shot up the driveway.
According to one witness, Lopez's mother directed her comments specifically to Gonzalez while trying to stop him from running onto the property with a gun.
A bullet fired by Gonzalez was later found lodged in a refrigerator that was located up the driveway. The bullet strike was at a height of three and a half feet from the ground. Gonzalez testified that he shot the bullet lodged in the refrigerator as a warning shot and did not aim it at anyone.
Aurelio escaped over the back fence of Lopez's yard and ran home. Cendejas stayed on Lopez's property and ran into the backyard as Lopez and Gonzalez looked for him. As Cendejas attempted to escape from his pursuers, he entered Lopez's house through the sliding door in the back, and ran through the house, where he ended up in the laundry room. There were six small children in the house at the time, ranging in age from two to 10 years old, one of who was in a delicate medical condition and used a wheelchair. Gonzalez was the father of two of the children and the legal guardian of two others. According to Gonzalez's 10-year-old son, whom was in the house at the time, the children were screaming and yelling as they hid from Cendejas. The boy heard Cendejas tell the screaming children to "shut the fuck up" when he was in the laundry room.
While standing outside the house at the door leading into the laundry room, Lopez saw that Cendejas was inside the laundry room. Lopez stood at the laundry room door, holding it closed, while he called for Gonzalez to come over, telling him that he had found Cendejas. Gonzalez walked up the ramp leading to the laundry room door and went inside when Lopez opened the door.
According to Garcia, who was standing nearby and could see what was happening, a few seconds to half a minute after Gonzalez entered the house, Gonzalez and Cendejas came out of house, wrestling with each other on the ramp's landing just outside the laundry room door. One of Gonzalez's hands was on Cendejas's shoulder and the other was holding the gun. Gonzalez managed to get Cendejas down on his knees. While pushing down on Cendejas with his hand, Gonzalez placed the gun on the left side of Cendejas's back and fired the gun, killing Cendejas. According to Garcia, as Gonzalez placed the gun on Cendejas's back, Lopez stated, "no, no, no, no." Garcia testified that Cendejas was not struggling or doing anything to Gonzalez when he was shot.
Gonzalez testified at trial that he did not intend to shoot Cendejas and that the gun fired accidentally while the two men were wrestling. According to Gonzalez, after Lopez alerted him that Cendejas was inside the house, Gonzalez went through the laundry room door and found Cendejas six or seven feet inside the house at the entrance to the dining room and kitchen area. Gonzalez testified that after he rushed toward Cendejas and tackled him, they struggled with each other as Gonzalez attempted to pull Cendejas out of the house and Cendejas tried to push Gonzalez away. According to Gonzalez, as the two men were wrestling at the threshold of the laundry room door, he forgot that the gun was in his hand, and he accidentally pulled the trigger of the gun, firing it into Cendejas's back while Cendejas was on his knees.
An autopsy subsequently revealed that Cendejas was killed by a single bullet that was fired by a gun placed squarely on his left upper back. The bullet travelled through Cendejas's body, tearing a carotid artery, damaging his spinal column, piercing his windpipe and exiting at the right side of his chin. The path of the bullet indicated that if Cendejas was on his knees when shot, he would have to have had his head bent down lower than his shoulders.
Immediately after the shooting, Gonzalez directed Lopez to call 911, and the police arrived shortly thereafter. In initial conversations with authorities, Gonzalez, Lopez and Garcia all told the untrue story that Cendejas was an intruder who broke into the house for unknown reasons, that there was no confrontation at the basketball court, and that the gun with which Cendejas was shot belonged to Cendejas and was taken away from him by Gonzalez during the struggle. During questioning by detectives, Lopez eventually told the truth about what had occurred, as did Garcia. Gonzalez testified at trial that he lied about the gun belonging to Cendejas and directed Lopez and Garcia to lie as well, because he believed that he was prohibited from possessing a firearm due to a juvenile felony adjudication. B. Trial Court Proceedings
During trial, only Lopez's jury heard testimony about Lopez's statements to police concerning the incident. We will discuss that testimony post when addressing Lopez's appellate arguments.
In an information, Gonzalez and Lopez were both charged with the first degree murder of Cendejas (count 1; § 187, subd. (a)), and the attempted murder of Aurelio (count 2; §§ 664, 187, subd. (a)). As to both counts, the information also included firearm allegations against Gonzalez (§§ 12022.53, subds. (c), (d), 1192.7, subd. (c)(8)), and further alleged that Gonzalez incurred a prior serious felony conviction (§ 667, subd. (a)) and a prior strike (§§ 667, subds. (c), (e)(1), 1170.12., subd. (c)(1)).
During trial, the trial court granted Lopez's motion for a judgment of acquittal on the charge of the first degree murder of Cendejas in count 1, and allowed the People to proceed with a charge of the second degree murder of Cendejas on that count. The trial court further granted Lopez's motion for a judgment of acquittal on the attempted murder of Aurelio alleged in count 2.
Lopez was found guilty of second degree murder. Gonzalez was found guilty in count 1 of first degree murder, with true findings on the firearm allegations (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), but was found not guilty of the attempted murder charged in count 2. The trial court subsequently made a true finding as to Gonzalez's prior serious felony conviction and prior strike (§§ 667, subds. (a), (c), (e)(1), 1170.12, subd. (c)(1)) based on Gonzalez's juvenile adjudication for robbery involving personal use of a firearm (§§ 211, 12022.53, subd. (b)).
At Lopez's sentencing, the trial court rejected the probation officer's recommendation that Lopez be granted probation after serving a one-year jail term, explaining that Lopez's case was not unusual and the circumstances were not substantially less serious than other cases of the same nature. The trial court sentenced Lopez to prison for an indeterminate term of 15 years to life.
The trial court denied Gonzalez's motion to strike his prior strike and sentenced Gonzalez to prison for an indeterminate term of 75 years to life, which included a 25-year-to-life term for the firearm enhancement (§ 12022.53, subd. (d), along with a consecutive determinate term of five years.
II.
DISCUSSION OF GONZALEZ'S APPEAL
We first discuss the arguments raised in Gonzalez's appellate brief. A. Substantial Evidence Supports a Finding That Gonzalez Did Not Shoot Cendejas in Defense of Others
Gonzalez's jury was instructed on the doctrine of self-defense and defense of others, including that the People had the burden of proving that those defenses did not apply. Gonzalez contends that substantial evidence does not support a finding that he did not act in defense of the children in the house when shooting Cendejas. Indeed, Gonzalez contends that "the evidence of justification is so compelling that this court should conclude that the killing was justified as a matter of law." (See People v. Nguyen (2015) 61 Cal.4th 1015, 1044 [" ' "[W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine" ' "].)
Among other things, the jury was instructed that Gonzalez acted in lawful self-defense or defense of another if:
"1. The defendant reasonably believed that he or someone else was in imminent danger of being killed or suffering great bodily injury;
"2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself or someone else. Defendant's belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing . . . was not justified."
The jury was further instructed that "[t]he People have the burden of proving beyond a reasonable doubt that the . . . killing was not justified."
" 'Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Salazar (2016) 63 Cal.4th 214, 242.) "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt." (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
Here, because the People had the burden to disprove the killing was justified by defense of others, in evaluating Gonzalez's challenge to the sufficiency of the evidence on that issue we must decide whether a reasonable trier of fact could have found, from the evidence, that defendant did not act in defense of others. As we will explain, substantial evidence supports a finding that Gonzalez did not act in defense of others.
Although Gonzalez broadly summarizes his argument as a challenge to the finding that he acted neither in self-defense nor defense of others, his only factual argument concerns the evidence supporting a finding on defense of others. He makes no attempt to argue that the evidence supports a finding that he was defending himself from the imminent danger of great bodily injury or death. Accordingly, we focus our analysis on whether substantial evidence supports a finding on the defense-of-others theory.
Gonzalez rests his sufficiency of the evidence argument on the following assertion: "Cendejas'[s] actions in jumping the fence, kicking the door, and ultimately entering the mobile home at night under the circumstances where small children were present cannot be anything other than complete justification, especially since i[t] followed hard on the heels of Cendejas'[s] aggressive conduct toward Lopez and the teenagers at the basketball hoop. It was clearly reasonable for appellant to fear that his children were in danger of death or great bodily injury." Gonzalez argues, "it borders on the absurd to say that [he] did not reasonably fear that death or serious bodily harm might be inflicted upon his children, or that one might be seized as a hostage."
Gonzalez's argument fails because there is substantial evidence to support a finding that Gonzalez did not believe that the children in the house were in imminent danger of being killed or suffering great bodily injury if he did not kill Cendejas, and that, instead, the killing was motivated by malice and anger rather than an attempt to protect the children in the house.
We rely on several items of testimony to support our conclusion. First, Garcia's description of the killing contradicts a claim that Gonzalez believed it was necessary for him to shoot Cendejas to prevent harm to the children in the house. As Garcia testified, at the time that Gonzalez shot Cendejas, Gonzalez had already dragged Cendejas outside of the laundry room door, and he had managed to get Cendejas down on his knees. Garcia did not see Cendejas struggling against Gonzalez at the time he was shot. Garcia reported hearing Lopez state, "no, no, no, no", as Gonzalez put the gun on Cendejas's back, supporting a finding that Lopez also did not perceive the shooting to be a necessary act.
Second, testimony from a young boy inside the house did not provide any indication that Cendejas had attempted to take any violent action against the occupants of the house. Indeed, the jury could reasonably conclude, based on the evidence, that Gonzalez would have understood that Cendejas entered the house in an attempt to escape from gunfire rather than to inflict any harm to the occupants. The fact that Cendejas was fleeing from Gonzalez's gunfire makes this a very different case from one in which a person enters an occupied dwelling for no apparent reason other than to commit a crime.
Third, the jury could have credited the testimony of the neighbor who heard Gonzalez state, "This is what you get", immediately before taking a shot up the driveway of the Lopez residence. Based on that testimony, the jury reasonably could infer that Gonzalez was pursuing Cendejas, with malice, to take revenge for Cendejas's aggressions at the basketball court, and that the killing was part of that malicious course of action rather than an attempt to defend the occupants of the house.
Finally, Gonzalez's own testimony provides no support for a finding that it was necessary for him to shoot Cendejas to prevent imminent injury to the children in the house. Specifically, Gonzalez testified that he had succeeded in dragging Cendejas from the house at the time of the shooting, having dragged him six or seven feet through the laundry room, with at least half of Cendejas's body outside the threshold, and with Cendejas having been brought to his knees. Although Gonzalez testified that he was wrestling with Cendejas in an attempt to get Cendejas out of the house and away from the children, because he had largely succeeded in doing so, Gonzalez's own account of the incident does not support a finding that Cendejas posed any imminent danger to the children in the house or to anyone else in the vicinity at the time Gonzalez shot him.
Based on all of the evidence set forth above, we conclude that substantial evidence supports a finding that Gonzalez did not shoot Cendejas while acting in defense of others. B. Substantial Evidence Supports a Finding That Gonzalez Acted with Malice in Killing Cendejas
A murder conviction requires a finding that the defendant acted with express or implied malice. (People v. Elmore (2014) 59 Cal.4th 121, 132 [" 'Murder is the unlawful killing of a human being . . . with malice aforethought.' (§ 187, subd. (a).) Malice aforethought may be express or implied. (§ 188.)"].) Gonzalez contends that insufficient evidence supports a finding that he acted with malice in killing Cendejas, and that we should therefore reduce his conviction to manslaughter. (See id. at p. 133 ["Manslaughter, a lesser included offense of murder, is an unlawful killing without malice."].)
Gonzalez first contends that the application of the doctrine of imperfect defense requires a finding that he did not act with malice in killing Cendejas. " ' "Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." ' " (People v. Manriquez (2005) 37 Cal.4th 547, 581.) Accordingly, the jury was instructed that a defendant acts in imperfect self-defense or imperfect defense of others when:
"1. The defendant actually believed that he or someone else was in imminent danger of being killed or suffering great bodily injury; and
"2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; but
"3. At least one of those beliefs was unreasonable."
Based on the same evidence he relied upon for his defense-of-others argument, Gonzalez contends that the only finding supported by the evidence was that he shot Cendejas because he believed that he or the children inside the house were in imminent danger of death or great bodily injury, even if that belief was unreasonable. We disagree.
Based on the evidence we have already reviewed ante in connection with the defense-of-others issue, the evidence at trial supported a finding that Gonzales did not shoot Cendejas out of a belief, unreasonable or otherwise, that he or the children were in imminent danger of death or great bodily injury. Specifically, (1) Garcia testified that Gonzalez shot Cendejas after having dragged him outside and brought him to his knees, after Lopez said, "no, no, no, no," and while Cendejas was not attempting to struggle; (2) the evidence supported an inference that Gonzalez understood that Cendejas went into the house to escape from the gunfire rather than to hurt the children; (3) a neighbor heard Gonzalez say "that's what you get" before shooting up the driveway; and (4) Gonzalez himself described a scene in which he had succeeded in dragging Cendejas out of the house. The evidence we have summarized provides substantial support for a finding that Gonzalez did not shoot Cendejas in the unreasonable belief that Gonzalez posed an imminent danger to himself or the occupants of the house, but that, instead, Gonzalez shot Cendejas out of malice as a consequence of Cendejas's actions at the basketball court.
Gonzalez also contends that the only finding supported by the evidence is that he was provoked and acted in the heat of passion, precluding the possibility that he acted with malice. As the jury was instructed,
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
"The defendant killed someone because of a sudden quarrel or in the heat of passion if:
"1. The defendant was provoked;
"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and
"3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection."
We disagree. As we will explain, the evidence supports a finding that Gonzalez did not shoot Cendejas in the heat of passion because he did not act rashly and under the influence of intense emotion. Indeed, as was emphasized during the People's closing argument to the jury, Gonzalez was specifically asked at trial whether he acted based on intense emotion when he pulled the trigger, and he denied doing so. The following exchange occurred between the prosecutor and Gonzalez at trial:
"Q. Now, at the time that you pulled the trigger, were you upset?
"A. What do you mean 'upset'? Can you define 'upset'?
"Q. Mad? Were you mad?
"A. I was not mad, no.
"Q. Were you overcome with intense emotions at the time you pulled the trigger?
"A. I was afraid. I was trying to take him, you know, outside of the house.
"Q. No, I understand that's what your story is, but I'm asking you, did you pull the trigger because you were so overcome with intense emotion that you felt like you needed to kill [Cendejas]?
"A. No, absolutely not."
This testimony provides substantial evidence for a finding that Gonzalez did not act based on the heat of passion necessary to negate malice and reduce a homicide to voluntary manslaughter. Because Gonzalez claimed that the killing was an accident, he did not describe a situation in which he was so overcome by emotion that he killed Cendejas. The jury could rely on Gonzalez's own description of his mental state to conclude that Gonzalez did not act in the heat of passion. C. Gonzalez Has Not Established the Trial Court Prejudicially Erred by Declining to Instruct on Defense of Habitation
During jury deliberations, Gonzalez's jury sent a note to the court asking, "What is the law for self[-]defense of property and home?" In discussion with the trial court regarding how to respond to the jury's question, counsel for Gonzalez requested that the trial court instruct the jury with CALCRIM No. 506, which is titled "Justifiable Homicide: Defending Against Harm to Person Within Home or on Property."
CALCRIM No. 506 provides,
"The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill) to defend (himself/herself) [or any other person] in the defendant's home. Such (a/an) [attempted] killing is justified, and therefore not unlawful, if:
"1. The defendant reasonably believed that (he/she) was defending a home against <insert name of decedent>, who (intended to or tried to commit <insert forcible and atrocious crime>/ [or] violently[[,] [or] riotously[,]/ [or] tumultuously] tried to enter that home intending to commit an act of violence against someone inside);
"2. The defendant reasonably believed that the danger was imminent;
"3. The defendant reasonably believed that the use of deadly force was necessary to defend against the danger;
"AND
"4. The defendant used no more force than was reasonably necessary to defend against the danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to (himself/herself/ [or] someone else). Defendant's belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, then the [attempted] killing was not justified.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed. [A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/<insert forcible and atrocious crime>) has passed. This is so even if safety could have been achieved by retreating.]
"The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter)." (CALCRIM No. 506.)
CALCRIM No. 506 is derived from section 197, subdivision (2), which states that homicide is justifiable "[w]hen committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein." Further, as reflected in the instruction, case law holds that for the defense-of-habitation doctrine to apply, the felony that the defendant believes will be committed by the person who has entered the home must be "a forcible and atrocious crime," meaning a crime which "reasonably create[s] a fear of great bodily harm." (People v. Ceballos (1974) 12 Cal.3d 470, 478 (Ceballos).) Our Supreme Court has clarified that a burglary qualifies as a forcible and atrocious crime only if "the burglary threatened, or was reasonably believed to threaten, death or serious bodily harm." (Id. at p. 479.) Based on this principle, "a homicide involving the intentional use of deadly force can never be justified by defense of habitation alone. The defendant must also show either self-defense or defense of others, i.e., that he or she reasonably believed the intruder intended to kill or inflict serious injury on someone in the home." (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360, italics omitted.)
The trial court declined to instruct with CALCRIM No. 506 for two reasons. First, it pointed out that the opening paragraph of CALCRIM No. 506 refers to "the defendant's home," but the home at which the killing took place was not Gonzalez's home, as it was the house where Lopez and Lopez's mother lived. Second, defense counsel was unable to make an offer of proof "that there was substantial evidence of a reasonable belief of any atrocious crime or forcible crime." Accordingly, the trial court responded to the jury's note by directing the jurors to consider certain specific instructions on self-defense and defense of others that had already been given.
Because of the unavailability of the judge who presided over the trial, a different judge ruled on the issue of whether the jury should be instructed with CALCRIM No. 506 in response to the jury's note. As the judge making the ruling did not sit through the evidence at trial, the trial court based its ruling on defense counsel's inability to give an offer of proof that the evidence presented at trial supported a finding that Gonzalez reasonably believed that Cendejas entered the house with the intention to commit a forcible and atrocious crime. However, the trial court also noted on the record, before responding to the jury's note, that he had conferred by telephone with the judge who presided over the trial, and that judge concurred with the approach taken by the trial court in responding to the jury's note.
Gonzalez contends that the trial court prejudicially erred in declining to instruct with CALCRIM No. 506. " '[A] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.' " (In re Christian S. (1994) 7 Cal.4th 768, 783, italics omitted.) "Although a trial court should not measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, . . . the court need not give the requested instruction where the supporting evidence is minimal and insubstantial." (People v. Barnett (1998) 17 Cal.4th 1044, 1145, fn. omitted.) We apply a de novo standard of review to the trial court's decision to decline a requested jury instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Gonzalez contends that the trial court erred as to both of the reasons it gave for concluding that the defense-of-habitation instruction was not warranted. First, Gonzalez contends that under the wording of section 197, subdivision (2), a defendant may claim defense of habitation as a justification for homicide even if the home at issue is not the defendant's, and that the first paragraph of CALCRIM No. 506 is accordingly incorrect in referring to the "defendant's home." Specifically, he argues that there is no requirement in the language of the statute that the intruder enter the defendant's house, and no case law limits the statute in such a way. According to Gonzalez, because his children were inside and the home belonged to his mother-in-law, he "had a sufficient connection to the residence" to entitle him to invoke the statute. Second, Gonzalez contends that the instruction should have been given because substantial evidence supports a finding that he reasonably believed that Cendejas entered the house with the intention to commit a forcible and atrocious crime.
We need not and do not resolve either of Gonzalez's arguments. Instead, as we will explain, even assuming for the sake of analysis that it was error for the trial court to decline to instruct with CALCRIM No. 506, Gonzalez has not established that any such error was prejudicial.
As an initial matter, we note, as do the People, that case law is not clear as to what harmless error standard applies when a trial court errs in failing to properly instruct on any of the related theories of self-defense, defense of others or defense of habitation. Gonzalez contends his right to an instruction on defense of habitation is protected under the Fourteenth Amendment, as an instruction on an element of the crime, which triggers review under Chapman v. California (1967) 386 U.S. 18 (Chapman), under which the People must prove that the error was harmless beyond a reasonable doubt. (Id. at p. 24.) In support of this argument, Gonzalez points out that the People have the burden to disprove that Gonzalez justifiability killed in defense of habitation. (See People v. Gonzalez (2012) 54 Cal.4th 643, 663 ["an erroneous instruction that omits an element of an offense is subject to harmless error analysis under Chapman"].) Some case law has applied the Chapman standard in similar circumstances. (People v. Rhodes (2005) 129 Cal.App.4th 1339, 1347 [error in failing to instruct with general self-defense instruction was subject to Chapman harmless error standard].)
In contrast, the People assert that the more lenient prejudice standard for assessing errors of state law under People v. Watson (1956) 46 Cal.2d 818, 836 is appropriate here, under which the inquiry is whether it is reasonably probable that the defendant would have received a more favorable outcome in the absence of the error. Some published opinions have applied the standard for state law error when the trial court fails to properly instruct on self-defense or defense of others. (People v. Villanueva (2008) 169 Cal.App.4th 41, 53; People v. Elize (1999) 71 Cal.App.4th 605, 616.)
Here, as we will explain, we conclude that even under the more demanding standard for federal constitutional error set forth in Chapman, Gonzalez has not established prejudice in failing to instruct with CALCRIM No. 506. (See People v. Clark (2011) 201 Cal.App.4th 235, 251 [concluding that omission of self-defense instruction was harmless under any standard].) Therefore, we need not resolve the disputed issue of which harmless error standard applies.
An error in omitting an instruction is harmless when a factual question posed by that instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96.) Put another way, "if the issue was necessarily decided under other instructions given, reversal is not required." (People v. Watt (2014) 229 Cal.App.4th 1215, 1220; see People v. Garcia (2001) 25 Cal.4th 744, 761 [error in failing to instruct on an element of the crime "is harmless when the reviewing court can determine beyond a reasonable doubt, based on jury findings that may be inferred from other instructions, that the instructional error did not contribute to the verdict"].) Here, the same factual questions posed by the omitted defense-of-habitation instruction were presented to the jury in nearly identical form in the defense-of-others instruction, and those questions were resolved adversely to Gonzalez.
The relevant content of the defense-of-habitation instruction as set forth in CALCRIM No. 506 is nearly identical to the content of the defense-of-others instruction given to the jury based on CALCRIM No. 505. As customized to the facts of this case, CALCRIM No. 506 would read: "1. The defendant reasonably believed that he was defending a home against Cendejas, who violently, riotously or tumultuously tried to enter that home intending to commit an act of violence against someone inside." The second element of the instruction would state, "2. The defendant reasonably believed that the danger was imminent." (CALCRIM No. 506.) The first element of the defense-of-others instruction given to the jury includes a very similar concept: "1. The defendant reasonably believed that . . . someone else was in imminent danger of being killed or suffering great bodily injury." Otherwise, the remainder of the requirements set forth in both instructions are substantively identical. Both instructions require findings that "[t]he defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger" and that "[t]he defendant used no more force than was reasonably necessary to defend against that danger." Both instructions also point out that "[b]elief in future harm is not sufficient, no matter how great or how likely the harm is believed to be," that "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation," that "[i]f the defendant used more force than was reasonable, the killing . . . was not justified," and that "a defendant is not required to retreat."
The first element of CALCRIM No. 506 reads: "1. The defendant reasonably believed that (he/she) was defending a home against <insert name of decedent>, who (intended to or tried to commit <insert forcible and atrocious crime>/ [or] violently[[,] [or] riotously[,]/ [or] tumultuously] tried to enter that home intending to commit an act of violence against someone inside)." When asked by the trial court, defense counsel was not able to identify any specific forcible and atrocious crime that Gonzalez could have believed that Cendejas intended to commit in the house. Therefore, the first element of the defense-of-habitation instruction, if given and customized to this case, would reasonably refer only to a belief that Cendejas intended to commit an act of violence to someone inside the house, rather than a specific forcible and atrocious crime. Gonzalez contends in his reply brief that the instruction as tailored to this case would have identified "first degree burglary when there were other persons present in the residence" as the forcible and atrocious crime at issue. However, defense counsel did not identify that crime for the trial court when arguing for the instruction. Moreover, as we have explained, our Supreme Court in Ceballos, supra, 12 Cal.3d at page 479, held that a burglary does not qualify as a forcible and atrocious crime unless "the burglary threatened, or was reasonably believed to threaten, death or serious bodily harm." (Ibid.) Therefore, consistent with Ceballos, if a specific forcible and atrocious crime were identified in an instruction customized for this case it would have referred to "first degree burglary that the defendant reasonably believed to threaten death or serious bodily injury."
Great bodily injury was defined for the jury as "significant or substantial physical injury" that "is greater than minor or moderate harm."
Based on the above, the only substantive relevant difference between the two instructions is that the defense-of-habitation instruction applies if Gonzalez had a reasonable belief that someone was going to imminently commit an act of violence to someone in the house, and the defense-of-others instruction applies if Gonzalez had a reasonable belief that someone was going to imminently kill or inflict great bodily injury on someone in the house. The difference between committing an act of violence versus killing or inflicting great bodily injury is not meaningful in the context of this case. There was no evidence presented at trial based on which a reasonable jury could conclude that Gonzalez reasonably feared that Cendejas intended to commit an act of violence against the children in the house but did not reasonably fear that Cendejas intended to inflict great bodily injury on the children. The evidence was that Gonzales knew that Cendejas entered the house, that Gonzalez heard the children screaming, and he did not know what Cendejas's intentions were, but he feared that they might be malicious. Defense counsel stated in closing argument that Gonzalez could have believed Cendejas might use knives from the kitchen to hurt the children, or might intend to hurt a child with a kick to the head.
We note that if a specific forcible and atrocious crime was identified in the instruction as "first degree burglary that the defendant reasonably believed to threaten death or serious bodily injury," the instruction would be even more similar to language in the defense-of-others instruction, which requires a reasonable belief that "someone else was in imminent danger of being killed or suffering great bodily injury."
Based on that evidence and argument, jurors would have had no basis to conclude that Gonzalez reasonably believed that Cendejas intended to imminently commit violence on the children but he did not reasonably believe that Cendejas intended to imminently inflict great bodily injury on them. Accordingly, we conclude beyond a reasonable doubt that because the jury rejected the claim of defense of others when properly instructed on that theory, the jury would not have reached a different conclusion had it been given a slightly different instruction describing defense of habitation based on CALCRIM No. 506.
As an independent basis for our determination that any instructional error was harmless, we note that for the jury to have found that the defense-of-habitation doctrine justified Gonzalez's killing of Cendejas, it would have to find that at the time Gonzalez killed Cendejas, he "reasonably believed that the danger was imminent." (CALCRIM No. 506.) However, no reasonable jury would find that the evidence at trial supported such a finding. At the time that Gonzalez shot Cendejas, Gonzalez had succeeded in dragging Cendejas out of the house and had him controlled in a kneeling position, with Cendejas not struggling against him. Further, there is no evidence that at the time Gonzalez fired the fatal shot, Cendejas was anywhere near the children who were inside the house or that he was doing anything that could be understood as an attempt to injure them. Thus, even if the jury could have found that Gonzalez believed that Cendejas might, at some earlier point, have posed a danger to the children in the house before he located Cendejas and brought him under control, there was no evidence at trial to support a finding that at the time Gonzalez killed Cendejas, Gonzalez reasonably believed that the danger was imminent. For this reason too, we conclude that the failure to instruct the jury with CALCRIM No. 506 was harmless beyond a reasonable doubt. D. The Trial Court Did Not Err by Failing to Instruct Sua Sponte with CALCRIM No. 3477
Of course, the same finding was also required for the application of the defense-of-others doctrine, which the jury rejected.
Gonzalez contends that the trial court erred by failing to instruct sua sponte with CALCRIM No. 3477, titled "Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury."
CALCRIM No. 3477 states,
"The law presumes that the defendant reasonably feared imminent death or great bodily injury to (himself/herself)[, or to a member of (his/her) family or household,] if:
"1. An intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;CALCRIM No. 3477 is derived from section 198.5, which states,
"2. The defendant knew [or reasonably believed] that an intruder unlawfully and forcibly (entered/ [or] was entering) the defendant's home;
"3. The intruder was not a member of the defendant's household or family;
"AND
"4. The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.
"[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]
"The People have the burden of overcoming this presumption. This means that the People must prove that the defendant did not have a reasonable fear of imminent death or injury to (himself/herself) [, or to a member of his or her family or household,] when (he/she) used force against the intruder. If the People have not met this burden, you must find the defendant reasonably feared death or injury to (himself/herself)[, or to a member of his or her family or household]."
"Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
"As used in this section, great bodily injury means a significant or substantial physical injury."
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. [Citation.] 'A trial court's duty to instruct, sua sponte, on particular defenses arises " 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' " (People v. Martinez (2010) 47 Cal.4th 911, 953.)
Here, the trial court properly omitted an instruction under CALCRIM No. 3477 because the principles set forth therein do not apply to this case. Both CALCRIM No. 3477 and the statute from which it is derived make clear that the presumption applies only to the defendant's own residence. Specifically, section 198.5 refers to "his or her residence" when referring to the defendant seeking to employ the presumption, and CALCRIM No. 3477 twice refers to "the defendant's home."
"The plain language of section 198.5 shows the statute was intended to give residential occupants additional protection in situations where they are confronted in their own homes by unlawful intruders such as burglars." (People v. Brown (1992) 6 Cal.App.4th 1489, 1495, italics added.) The evidence was undisputed that Gonzalez did not reside in the home where Cendejas was shot, and that it was the home of his mother-in-law and brother-in-law. Nevertheless, Gonzalez argues that the house should be treated as if it was his home because his children were inside and were regularly cared for in the house by his mother-in-law. For this argument, Gonzalez relies on People v. Grays (2016) 246 Cal.App.4th 679 (Grays), in which the court interpreted the term "residence" in section 198.5.
In Grays, the defendant lived in the apartment where the shooting occurred, but the trial court refused to instruct pursuant to section 198.5 "on the ground that unit 930 was not appellant's 'residence' because he was not legally subletting the unit." (Grays, supra, 246 Cal.App.4th at p. 685.) Grays concluded that based on evidence that the defendant had been living in the apartment for four or five months and paid $50 in rent to someone to sublease it, although subletting was not formally allowed by owner of the building, he qualified as a resident of the apartment. Looking to the concept of "residence" as used in the crime of burglary, Grays concluded that because the defendant had been an inhabitant of the apartment for several months, paid rent and had a key, even though he was not a legal resident on the lease, he had "a reasonable expectation of protection against unwanted intruders," and thus was entitled to the presumption in section 198.5. (Grays, at p. 687.)
Grays distinguished People v. Silvey (1997) 58 Cal.App.4th 1320 (Silvey), which held that the court had no sua sponte duty to instruct on section 198.5 when, according to the owner of the home at issue, the defendant " 'lived in a small room at his worksite which had no shower facilities, and she ". . . told him he could come over once a day and take a shower. And then on occasion, when he came home really late at night, I told him it was okay for him to sleep on the couch." ' " (Grays, supra, 246 Cal.App.4th at p. 687, quoting Silvey, at p. 1327.) As explained in Silvey, "[b]y its terms, the presumption [in section 198.5] benefits only residents defending their homes. . . . [¶] Silvey was never shown to be, nor did he ever claim to be, a resident." (Silvey, at pp. 1326-1327.) Grays explained that "[u]nlike the defendant in Silvey, [Grays] testified he was more than a guest in [the apartment unit]: he paid rent, kept his belongings there, and had been living there for four or five months." (Grays, at p. 688.)
The instant case is more like Silvey than Grays. Like the defendant in Silvey, Gonzalez had only an attenuated connection to the house, and it was not where he lived. Although Gonzales obviously did not want intruders in the house where his children were being cared for, that fact does not qualify the house as his residence for the purpose of section 198.5 when he clearly did not live there. We accordingly conclude that the trial court did not err in failing to instruct with CALCRIM No. 3477. E. The Trial Court Did Not Prejudicially Err in Allowing Testimony Regarding the Type of Felony at Issue in Gonzalez's Juvenile Adjudication
In 2001, when Gonzalez was a minor, he was adjudged a ward of the court and committed to the California Youth Authority based on his commission of the crimes of second degree robbery, during which he personally used a firearm (§§ 211, 12022.53, subd. (b)), and intimidating a witness (§ 136.1, subd. (b)(1)). Gonzalez was honorably discharged from the commitment in 2008.
During motions in limine, the People asked for a ruling that it could introduce evidence of Gonzalez's juvenile adjudication to impeach Gonzalez if he testified at trial. Gonzalez asked for a ruling excluding that evidence. The trial court tentatively ruled that it would exclude evidence of the juvenile adjudication pursuant to Welfare and Institutions Code section 1772, and related case law, which establish that, with exceptions not relevant here, the fact of a juvenile adjudication is not admissible in a subsequent criminal trial for purposes of impeachment if the person was honorably discharged from the commitment. Specifically, at the time of trial Welfare and Institutions Code section 1772, subdivision (a), stated that subject to certain inapplicable exceptions "every person honorably discharged from control by the Youth Authority Board who has not, during the period of control by the authority, been placed by the authority in a state prison shall thereafter be released from all penalties and disabilities resulting from the offense or crime for which he or she was committed . . . ." (Former Welf. & Inst. Code, § 1772, subd. (a).) Case law has established that "impeachment is a penalty or disability within the meaning of Welfare and Institutions Code section 1772, thus precluding use of a qualifying prior felony conviction for that purpose." (People v. Jackson (1986) 177 Cal.App.3d 708, 711 (Jackson).) As Jackson explained, "a 'disability' results when the youthful offender cannot testify free from the taint of such an offense. The use of the offense, then, surely may hinder presentation of a defense in a criminal prosecution by dissuading the defendant from testifying on his own behalf, thus causing a form of legal incapacity and disqualification." (Id. at pp. 711-712.)
The issue of admissibility came up again prior to Gonzalez presenting defense evidence when the prosecutor asked the trial court whether she could admit evidence of the juvenile adjudication to rebut testimony by any defense witnesses about Gonzalez's nonviolent character.
In the course of his trial testimony, Gonzalez himself introduced evidence of his juvenile adjudication during direct examination by defense counsel. In explaining why he lied to authorities by stating that it was Cendejas who brought the gun to the confrontation, Gonzalez stated, "When I was younger, I was in trouble. I got in trouble. I was under the assumption that I couldn't own a firearm." Gonzalez stated that he was 16 years old at the time, and he "went to juvenile hall . . . and then I was remanded [as] a ward of the state to California Youth Authority." Gonzalez further stated that the crime was a felony.
Before cross-examining Gonzalez, the prosecutor asked the trial court whether she could introduce evidence that the felony at issue in the juvenile adjudication was robbery with a firearm. She argued that because Gonzalez had testified about the juvenile adjudication to bolster his credibility to explain why he lied to authorities, she should be able to introduce the nature of the juvenile adjudication because it is a crime of moral turpitude. She explained that "he used it to actually bolster his credibility, when, in fact, it doesn't bolster his credibility if the jury knows what the underlying offense is. And I believe that they've now waived that by putting that in." The trial court ruled that because Gonzalez had "selectively admitted" the juvenile adjudication, the prosecutor could inquire as to the nature of the crime at issue.
Accordingly, during cross-examination, the following exchange occurred between Gonzalez and the prosecutor:
"Q. Now, one of the things yesterday your counsel was asking you about [is] why it was you believed you could not have a gun; is that true? . . . [¶] . . .
"A. Yes, it was.
"Q. And you said because you had a . . . felony adjudication in Juvenile Court; is that correct?
"A. Yes, I did. . . . [¶] . . .
"Q. All right. Now, sir, it's actually you have an admission of robbery with a gun; is that correct?
"A. Yes.
"Q. And you didn't say that yesterday on direct? . . . [¶] . . .
"A. . . . I don't remember saying if it was with a gun, but I told my counsel I thought we said robbery, but—
"Q. Robbery with a gun; is that correct?
"A. Yes, that's what it was, yes, it was a robbery with a gun."
Gonzalez contends that the trial court prejudicially erred by allowing the prosecutor to elicit testimony specifying the nature of the crime at issue in the juvenile adjudication. Gonzalez contends that even though he mentioned the juvenile adjudication during direct examination, the prosecutor was nevertheless prohibited by Welfare and Institutions Code section 1772 and Jackson from inquiring any further.
We reject Gonzalez's position. As we have explained, the prohibition on the admission of juvenile adjudications is based on Welfare and Institutions Code section 1772, which, in this case, releases Gonzalez from all "penalties and disabilities" resulting from his juvenile adjudication. However, as Jackson explained, admission at trial of a defendant's prior juvenile adjudication constitutes a disability within the meaning of Welfare and Institutions Code section 1772 only because allowing such admission may "hinder presentation of a defense in a criminal prosecution by dissuading the defendant from testifying on his own behalf, thus causing a form of legal incapacity and disqualification." (Jackson, supra, 177 Cal.App.3d at pp. 711-712.)
Here, however, because it was Gonzalez who first mentioned his juvenile adjudication to the jury, Gonzalez was not dissuaded from testifying on his own behalf when the trial court ruled that the prosecutor could ask a follow-up question regarding the crime at issue in the adjudication. Gonzalez had already made the decision that he would inform the jury about his juvenile adjudication to provide an explanation of why he lied to authorities that Cendejas brought the gun to the confrontation. Because Gonzalez took the voluntary step of admitting his juvenile adjudication in an attempt to use it to his own advantage, it was well within the trial court's discretion to allow the prosecutor to provide the jury with more complete information about that offense so that the jury could assess for itself how the juvenile adjudication impacted their view of Gonzalez's credibility. We accordingly conclude that the trial court did not err in allowing the prosecutor to inquire about the nature of the crime at issue.
The information about Gonzalez's juvenile adjudication that the prosecutor elicited during cross-examination went no further than is normally permitted in asking a defendant about prior crimes for impeachment. (People v. McClellan (1969) 71 Cal.2d 793, 809 [proper questioning regarding a defendant's prior crime extends to information that appears on the face of the record of judgment].) Gonzalez relies on People v. Heckathorne (1988) 202 Cal.App.3d 458 to argue that the prosecutor should not have been permitted to ask any follow-up questions about the juvenile adjudication after Gonzalez first mentioned it to the jury. However, that case is inapposite because it involved improper questioning of a defendant about the factual details of a prior crime, not merely the name of the offense at issue. (Id. at pp. 462-463.)
Moreover, even were we to conclude that the trial court erred in allowing the People to inquire about the nature of the juvenile adjudication, it is not reasonably probable that Gonzalez would have obtained a more favorable result had the evidence been excluded. (Jackson, supra, 177 Cal.App.3d at p. 714 [applying reasonable probability standard in determining whether the erroneous admission of a juvenile adjudication was prejudicial].) The main significance of the information that Gonzalez's juvenile adjudication was for a robbery with a firearm, as opposed to a more generic "felony," was to inform the jury that Gonzalez is someone with a history of committing a crime while using a firearm. However, the jury already knew from the evidence at trial that Gonzalez brought a firearm to the incident, that he shot it in the direction of Cendejas and Aurelio, and that he had it in his hand as he was wrestling with Cendejas. As the jury already knew that Gonzalez brought his firearm to the incident and used it at least once, we find no reasonable probability that the jury would have been less likely to credit Gonzalez's claim of accident or self-defense if they did not know that Gonzalez's prior felony adjudication was for robbery with a firearm. F. Gonzalez's Request That the Matter Be Remanded for Resentencing to Allow the Trial Court to Consider Striking or Dismissing the Firearm Enhancement Pursuant to Newly Enacted Section 12022 .53, Subdivision (h).
Gonzalez's final argument is based on section 12022.53, subdivision (h), which went into effect on January 1, 2018, and gives the trial court discretion, in the interest of justice, to strike an enhancement for firearm use alleged and found true under section 12022.53, subdivision (d). In this case, the trial court imposed a term of 25 years to life for the firearm enhancement (§ 12022.53, subd. (d).).
Section 12022.53, subdivision (d) states, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
The newly enacted provision states that "[t]he court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§ 12022.53, subd. (h).) Prior to the amendment, the imposition of the enhancement was mandatory. Accordingly, the trial court in this case did not have an opportunity to consider whether to exercise its discretion to strike or dismiss Gonzalez's firearm enhancement. Gonzalez contends that because his case is not yet final he should be given the opportunity to have the trial court consider whether to strike or dismiss the 25-year-to-life enhancement for firearm use that the trial court imposed in this case under section 12022.53, subdivision (d).
The People concede that this matter should be remanded for resentencing so that the trial court can choose whether or not to exercise its discretion to strike or dismiss the firearm enhancement imposed pursuant to section 12022.53, subdivision (d). The People take the position that our Supreme Court's opinions in In re Estrada (1965) 63 Cal.2d 740 and People v. Francis (1969) 71 Cal.2d 66 lead to the conclusion that a new law granting the trial court discretion to mitigate punishment applies retroactively to cases that are not yet final.
Accordingly, in light of the People's concession, we will remand Gonzalez's case to the trial court for resentencing for the limited purpose of considering whether to strike or dismiss the firearm enhancement in the interests of justice.
III.
DISCUSSION OF LOPEZ'S APPEAL
We now turn to the issues raised in Lopez's appeal. A. Substantial Evidence Supports the Verdict of Second Degree Murder
Lopez was convicted of a single count of second degree murder under the theory that he aided and abetted Gonzalez in committing the murder of Cendejas. Lopez contends that insufficient evidence supports his conviction.
At closing argument, the People presented the jury with the theory of how it should arrive at a finding that Lopez committed second degree murder of Cendejas. Specifically, the prosecutor argued that Lopez aided and abetted Gonzalez in committing an assault with a deadly weapon on Cendejas, and the natural and probable consequence of that assault, under the circumstances, was Cendejas's murder. Although, under the instructions given, the jury could conceivably also have concluded that Lopez was guilty of second degree murder under a theory that he directly aided and abetted the murder, with the intent to kill Cendejas, the prosecutor did not refer to or rely on that theory when arguing to the jury. Accordingly, in discussing whether substantial evidence supports the verdict against Lopez, we will first consider whether the evidence is sufficient to support a finding that Lopez committed second degree murder under the theory presented to the jury, namely that Lopez aided and abetted Gonzalez in committing an assault with a deadly weapon, the natural and probable consequence of which was Cendejas's murder. Because, as we will explain, we find the evidence sufficient to support a conviction under that theory, we need not and do not consider whether the evidence also supports a finding that Lopez directly aided and abetted the murder of Cendejas.
As the prosecutor argued to the jury, "[Lopez] knew when he called [Gonzalez] over there to [Cendejas], he knew he was going to do something with that gun. Did he know he was going to shoot him? He doesn't have to know that. You, as reasonable people, have to make the decision when you're calling the guy over, who you know has been running around shooting, to a guy that you have trapped, whether it is a natural and probable consequence that he might end up dead. [Lopez] aided and abetted in an assault, at the very least, when he called [Gonzalez] over, and that assault turned into a murder in this case. [Lopez] is guilty of murder." In rebuttal, the prosecutor summed up the theory in the same way, "Ladies and gentlemen, in this case I said it from the beginning, [Lopez] committed this murder. Natural and probable consequences doesn't require that he intend for [Cendejas] to die, . . . but [Lopez] is responsible for everything that flows from the crime he committed, which is holding [Cendejas] in and letting [Gonzalez] get to him. That's an assault with a deadly weapon. He aided and abetted [Gonzalez] in committing an assault with a deadly weapon. If you find that he did that, [Lopez] is guilty in this case of aiding and abetting in a murder, and it's a natural and probable consequence that a murder would have occurred in this case."
1. Applicable Law
Our Supreme Court recently summarized the law applicable to aiding and abetting liability and the natural and probable consequences doctrine.
"[S]ection 31, which governs aider and abettor liability, provides in relevant part, 'All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed.' An aider and abettor is one who acts 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' . . . [¶] ' "A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime." ' . . . 'Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault.' . . . [¶] A nontarget offense is a 'natural and probable consequence' of the target offense if, judged objectively, the additional offense was reasonably foreseeable. . . . The inquiry does not depend on whether the aider and abettor actually foresaw the nontarget offense. . . . Rather, liability ' "is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted." ' . . . Reasonable foreseeability 'is a factual issue to be resolved by the jury.' " (People v. Chiu (2014) 59 Cal.4th 155, 161-162 (Chiu), citations and fn. omitted.)
"In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for punishing such aiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder. . . . It is also consistent with reasonable concepts of culpability. Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator's state of mind in committing it. . . . It only requires that under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant." (Chiu, supra, 59 Cal.4th at pp. 165-166, citations omitted.)
"[A] defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine." (Chiu, supra, 59 Cal.4th at p. 167.) A person may also be found guilty of murder under a direct aiding and abetting theory, in which case "the aider and abettor must know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).) Although the jury in this case was instructed on that theory of second degree murder for Lopez, as we have explained, the prosecutor did not focus on it in closing argument, primarily relying instead on the natural and probable consequences doctrine.
2. Lopez's Statements About the Incident
In assessing Lopez's sufficiency of the evidence argument, the crucial evidence is the testimony of Detective Lester Harvey presented to Lopez's jury, in which he described the statements that Lopez made to him during an interview shortly after the killing.
As Detective Harvey described, after initially lying about events, Lopez eventually stated that he wanted to tell the truth. In so doing, Lopez told Detective Harvey that after the initial incident at the basketball court he telephoned Gonzalez, telling him that the men involved in the confrontation were going to come back, and that he was scared. Lopez called Gonzalez because he knew that Gonzalez, who used to be involved in gang activity, "would have his back" and "would take care of business."
According to Lopez, after Gonzalez arrived at the basketball court, there was a physical fight between Gonzalez and Cendejas. He then saw Cendejas and Aurelio run away toward his house, and he chased after them along with Gonzalez and Garcia. Lopez knew Gonzalez owned a gun, and he realized that Gonzalez brought the gun with him when he saw Gonzalez point it up the driveway and fire a shot in the direction of Cendejas and Aurelio.
As Lopez told Detective Harvey, he and Gonzalez ran in different directions when they reached the rear of the property to try to locate Cendejas and Aurelio. Lopez went to the door of the laundry room and saw Cendejas crouching inside the door. He saw Cendejas make a "shh" gesture with his finger to his lips. Lopez believed that Cendejas was trying to get out of the house and was panicked and very scared. Lopez knew that Cendejas had entered the house to get away from Gonzalez.
Placing his hand on the door handle and his feet on the bottom of the door, Lopez put pressure on the door to keep it closed so that Cendejas could not leave, knowing that he was trapping Cendejas inside the house. Lopez then called out to Gonzalez to alert him to Cendejas's location. As Lopez called out to Gonzalez, Cendejas again made a "shh" gesture directed to Lopez.
Lopez thought that when Gonzalez came over to the door, Gonzalez would fight with Cendejas and "do something to send a message to him" and "really scare him." He did not think that Gonzalez was going to kill Cendejas, although he knew Gonzalez had a gun and that he had already fired it that evening. Among other things, Lopez said, "Well, I just thought they were going to fight. I figured that he was just going to scare him, but I didn't think it was going to go that far."
Gonzalez then arrived at the laundry room door and, according to Lopez, he released his grip on the door to let Gonzalez enter. Gonzalez attempted to pull Cendejas out of the house, and managed to get him partially outside on the landing, in a seated position. Gonzalez was behind Cendejas controlling him with his left hand while Cendejas tried to get away. Lopez then saw Gonzalez fire a shot into Cendejas's left shoulder area. Lopez was surprised that Gonzalez shot Cendejas. Lopez did not see the need for Gonzalez to shoot, as Gonzalez already had Cendejas down on the ground.
In the past, Lopez had witnessed Gonzalez in a physical fight arising from a road rage incident, during which the person Gonzalez was fighting asked to stop the fight, but Gonzalez said, " 'No, we're not done' " and continued to fight. Lopez said that once Gonzalez gets mad, "there is no stopping him. When his adrenaline is up, . . . nobody can stop him." He had once tried to pull Gonzalez off someone during a fight, but the attempt was futile.
3. Substantial Evidence Supports a Finding That Lopez Aided and Abetted an Assault with a Deadly Weapon
Focusing on the principle that "[a]n aider and abettor is one who acts 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense' " (Chiu, supra, 59 Cal.4th at p. 161), Lopez argues the evidence is "insufficient for a reasonable jury to conclude that [Lopez] either knew that Gonzalez intended to use his gun to assault or kill Cendejas, or that [Lopez] specifically intended to facilitate an assault with a deadly weapon or murder." According to Lopez, the fact that he "held the door closed on Cendejas, when viewed in the context of all the surrounding circumstances, is simply too slender a reed upon which to support a finding beyond a reasonable doubt that [Lopez] knew that Gonzalez would assault Cendejas with a firearm, let alone kill him, and crucially, that he shared the intent with Gonzalez to assault or murder Cendejas." Lopez argues that "the far more likely hypothesis" was that Lopez called over Gonzalez to the laundry room door because he "was afraid to simply let Cendejas out of the room where he found him, and his only source of help was Gonzalez."
We reject Lopez's argument because the evidence is also sufficient to support a different view of the incident, namely that Lopez called over Gonzalez to fight with Cendejas, "really scare him," and "send a message" by assaulting him with a firearm. Indeed, as we will explain, that version of events was recounted by Lopez himself to Detective Harvey, and is therefore supported by substantial evidence.
As the jury was instructed, the crime of assault with a deadly weapon requires proof that (1) the defendant "did an act with a firearm that by its nature would directly and probably result in the application of force to a person"; (2) "the act was done willfully"; (3) the defendant was "aware of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to someone"; and (4) when the defendant acted, he "had the present ability to apply force with a firearm to a person." Further the jury was instructed, among other things, that "the People are not required to prove that the defendant actually touched someone" or "actually intended to use force against someone when he acted." Accordingly, as case law establishes, if all of the elements are met, "[a]ssault with a deadly weapon can be committed by pointing a gun at another person . . . , but it is not necessary to actually point the gun directly at the other person to commit the crime. (People v. Raviart (2001) 93 Cal.App.4th 258, 263, citation omitted.)
Here, a jury could reasonably conclude that Lopez trapped Cendejas in the house and then called Gonzalez over because he intended for Gonzalez to commit an assault with a deadly weapon on Cendejas, using his gun to threaten and scare Cendejas while physically assaulting him. As we have explained, Lopez told Detective Harvey that he called Gonzalez over to the laundry room door because he thought Gonzalez was going to "fight with" Cendejas, "do something to send a message to him" and "really scare him." It is undisputed that Lopez saw Gonzalez fire the gun as Cendejas and Aurelio ran up the driveway, so he knew that Gonzalez had a gun and was willing to use it. Further, Lopez told Detective Harvey that he had seen Gonzalez in past confrontations when he acted violently and refused to back down, and he knew that Gonzalez had a history of criminal gang activity. Also, according to Aurelio's testimony, which the jury was entitled to credit, while at the basketball court when Gonzalez showed up, Lopez said "We'll see how bad you guys are now," a comment which could reasonably be interpreted as Lopez stating that he expected Gonzalez was going to fight with them and inflict some sort of injury.
Based on all of this evidence, a jury could make a finding, supported by substantial evidence, that Lopez trapped Cendejas in the house and called over Gonzalez " 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense' " (Chiu, supra, 59 Cal.4th at p. 161), and thus aided and abetted Gonzalez in committing an assault with a deadly weapon.
Further, to the extent that Lopez challenges the sufficiency of the evidence to support a finding that murder was a natural and probable consequence of an assault with a firearm in the circumstances presented here, we conclude that substantial evidence supports such a finding. As we have explained, Lopez knew that Gonzalez had a gun and that he had already fired it once that evening. Lopez knew of Gonzalez's hot-headed nature and history of refusing to back down from an escalating fight. Under those circumstances, "a reasonable person in [Lopez's] position would have or should have known that [murder] was a reasonably foreseeable consequence of [assault with a deadly weapon]." (Chiu, supra, 59 Cal.4th at p. 162.)
Accordingly, substantial evidence supports a verdict of second degree murder based on the theory that Lopez aided and abetted Gonzalez in committing assault with a deadly weapon, and murder was a natural and probable consequence of that crime. (See People v. Prettyman (1996) 14 Cal.4th 248, 262 [citing cases in which "courts generally had no difficulty in upholding a murder conviction, reasoning that the jury could reasonably conclude that the killing of the victim . . . was a 'natural and probable consequence' of the assault that the defendant aided and abetted"].) B. The Instruction on Self-Defense for Nonhomicide Crimes Was Not Erroneous
Lopez makes a further sufficiency of the evidence challenge by incorporating the arguments presented in Gonzalez's appeal. Lopez argues that to the extent we conclude that the murder conviction against Gonzalez is not supported by substantial evidence, we should reach the same conclusion as to Lopez's murder conviction. Because we have rejected Gonzalez's sufficiency of the evidence arguments, Lopez's argument premised on Gonzalez's arguments also fails.
Lopez's jury was instructed that to establish the crime of assault with a deadly weapon, which Lopez was alleged to have aided and abetted, the People were required to prove that "the defendants did not act in self-defense or in defense of someone else." Accordingly, the trial court also instructed Lopez's jury on the theory of self-defense and defense of another for nonhomicide crimes. The central instruction on that theory was a modified version of CALCRIM No. 3470, titled Right to Self-Defense or Defense of Another (Non-Homicide), which stated, in relevant part:
"Self-defense is a defense to assault with a deadly weapon. The defendants are not guilty of that crime if either defendant used force against the other person in lawful self-defense or defense of another. The defendants acted in lawful self-defense or defense of another if:
"1. The defendant Lopez or defendant Gonzalez reasonably believed that he or someone else was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
"2. The defendant Lopez or defendant Gonzalez reasonably believed that the immediate use of force was necessary to defend against that danger; and
"3. The defendant Gonzalez used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to himself or someone else or an imminent danger that he or someone else would be touched unlawfully. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense or defense of another. When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed." (Italics added.)
Focusing on the portion of the instruction that we have italicized (i.e., the third element), Lopez argues that because the third element was modified to refer only to Gonzalez's use of force, the instruction "was legally incorrect and effectively precluded jury consideration of [Lopez's] otherwise substantial claims of self-defense and defense of others." Specifically, Lopez argues that by referring only to Gonzalez in the third element, the instruction erroneously made Lopez's criminal liability for aiding and abetting dependent on Gonzalez's state of mind (or "mens rea") in committing the assault with a deadly weapon rather than Lopez's state of mind. For his argument, Lopez relies on McCoy, supra, 25 Cal.4th 1111 for the principle that "if an aider and abettor has no culpable mens rea, he may be 'entirely innocent' . . . of the perpetrator's crime." According to Lopez, the erroneous instruction on the third element precluded the jury from considering whether he had no culpable mens rea even though Gonzalez did.
As McCoy explained, "[e]xcept for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. . . . This principle applies to aiding and abetting liability as well as direct liability. An aider and abettor must do something and have a certain mental state." (McCoy, supra, 25 Cal.4th at p. 1117, citation omitted.) Thus, when a defendant is alleged to have committed a crime as an aider and abettor, "guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (Ibid.) "Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea. If the mens rea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." (Id. at p. 1120, italics added.) As Lopez correctly reasons, the converse is true as well. An aider and abettor may be guilty of a less serious crime if he has a less serious mens rea, or may not be guilty at all if his state of mind gives him a valid defense. (See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164 [under McCoy's reasoning, "an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state"]; McCoy, at p. 1121 [citing People v. Williams (1977) 75 Cal.App.3d 731 for the principle that in an aiding and abetting context, one participant may be " 'entirely innocent' " and another may be guilty depending on their mens rea].)
As we have explained, Lopez relies on this case law to argue that by failing to mention Lopez in the third element of the self-defense/defense-of-others instruction, the jury was not instructed to consider Lopez's mens rea separately from Gonzalez's to determine whether Lopez acted in self-defense or defense of others in aiding and abetting an assault with a deadly weapon.
The central assumption of Lopez's argument is that the third element in the instruction describes a mens rea requirement that should be considered separately for Lopez and Gonzalez. The assumption is flawed because there is no mens rea in the requirement that "the defendant . . . used no more force than was reasonably necessary to defend against that danger." The third element in the instruction is based on the rule that "only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified." (People v. Clark (1982) 130 Cal.App.3d 371, 380.) Under this rule, "any 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.) As the applicable legal standard focuses on the degree of force used rather than on the defendant's state of mind when using that force, the third element in the instruction sets forth an objective standard. The application of that objective standard does not depend on whether the defendant believed that the level of force used was no more than reasonably necessary, but whether the defendant's act of applying force was excessive. Accordingly, because the third element sets forth an objective inquiry based on the amount of force used and is not dependent on the particular defendant's state of mind, Lopez cannot show that the third element was satisfied as to him even if it was not satisfied as to Gonzalez.
The third element in the instruction was therefore not erroneous in referring only to Gonzalez's use of force. Because it was undisputed that Gonzalez was the direct perpetrator of the assault with a deadly weapon, and the only person applying any force to Cendejas, the instruction reasonably directed the jury to consider whether "Gonzalez used no more force than was reasonably necessary to defend against that danger." C. Lopez Has Not Established That Counsel Was Ineffective in Failing to File a Motion for a New Trial on the Ground That the Verdict Was Contrary to the Evidence
Lopez contends that he received ineffective assistance of counsel because defense counsel did not make a motion for a new trial pursuant to section 1181, subdivision (6) on the ground that the verdict was contrary to the evidence. Lopez argues that if defense counsel had made such a motion, "[i]t is reasonably probable that the trial judge, in response to a motion for a new trial under section 1181[, subdivision] (6) would have acted favorably upon that motion," by either granting a new trial or reducing the conviction to manslaughter.
Lopez does not specify a factual theory under which the trial court could have concluded that the evidence supported a manslaughter conviction but not a murder conviction.
1. Applicable Legal Standards
a. Legal Requirements to Establish Ineffective Assistance of Counsel
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland); People v. Frye (1998) 18 Cal.4th 894, 979.) To establish a denial of the right to effective assistance of counsel, a defendant must show (1) his counsel's performance was below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland, at pp. 687, 691-692; Frye, at p. 979.) "It is defendant's burden to demonstrate the inadequacy of trial counsel." (People v. Lucas (1995) 12 Cal.4th 415, 436.)
To show prejudice, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Id. at p. 693.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
b. Standards Governing a Motion for a New Trial Under Section 1181 , Subdivision (6)
Under section 1181, subdivision (6), the trial court may grant a motion for a new trial "[w]hen the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed."
In considering a motion for a new trial under section 1181, subdivision (6), the trial court "independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' . . . If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to [the] . . . evidence.' " (Porter v. Superior Court (2009) 47 Cal.4th 125, 133, citations omitted.) "[A] trial court considering a section 1181 motion to modify a verdict on the ground that it is contrary to the evidence is limited to the three options specified in the statute: (1) It can set aside the verdict of conviction and grant the defendant a new trial; (2) it can deny the motion and enter judgment on the verdict reached by the jury; or (3) it can modify the verdict either to a lesser degree of the crime reflected in the jury verdict or to a lesser included offense of that crime." (People v. Lagunas (1994) 8 Cal.4th 1030, 1039, italics omitted.)
2. Lopez Has Not Established That Counsel's Failure to Make a Motion for a New Trial Was Prejudicial
In considering a defendant's contention that he received ineffective assistance of counsel, we may reject the argument solely by concluding that the defendant has failed to show that the challenged actions of counsel were prejudicial, without determining whether counsel's performance was deficient. (In re Scott (2003) 29 Cal.4th 783, 830.) We take that approach here. As we will explain, in light of the evidence presented at trial and the trial court's statements during sentencing, it is not reasonably probable that the trial court would have granted a motion for a new trial pursuant to section 1181, subdivision (6), had such a motion been brought, and thus Lopez has not established prejudice.
In determining whether it was prejudicial that counsel failed to file a motion for a new trial, we may look to other comments made by the trial court indicating its evaluation of whether the evidence presented at trial supported the verdict. (People v. Garrison (1989) 47 Cal.3d 746, 785 [determining that based on the trial court's comments showing that "it was convinced that the evidence was sufficient to sustain defendant's convictions and . . . was 'more than adequate' to prove defendant's participation in the murders," counsel did not render ineffective assistance of counsel for failure to make a motion for new trial].) At Lopez's sentencing hearing, the trial court considered and rejected the possibility of granting probation to Lopez instead of sentencing him to prison for a term of 15 years to life. In discussing why it was not granting probation, the trial court explained its view of the evidence and Lopez's culpable role in the murder:
"There are a lot of factors with respect to [Lopez] that are very favorable, as we've outlined. If you hadn't made that phone call, you'd still be out there playing basketball.
"Of course, you know this, it's more than the phone call because you played a pivotal role here. As everybody that saw the trial is aware, [Cendejas] was in that laundry room looking at you pleading, going 'shhh,' not wanting you to let [Gonzalez] know where he was.
"As you know also, [Cendejas] was trying to get out so he could flee like his buddy did and get to safety, but you held him in, and you acknowledged that in your statement. Everybody has testified you held the door closed. And then worse than that, though, you then called over [Gonzalez], who you know was running around crazy with a gun. You heard at least one gunshot by your own testimony, and there are probably at least two gunshots. So he's going around just nuts firing off that weapon trying to take somebody out. Certainly he was out of control. And you knew from before that he could be out of control. You've seen him in acts of rage in the past. You knew he had a gun. And the worst thing you could do was call
over somebody totally out of control, come over and turn [Cendejas] over to him. And that single act sealed [Cendejas's] fate and yours.
"Had you stepped aside and let [Cendejas] run-we all know he would have just been over that fence in a heartbeat or he would have been down the driveway. All he wanted to do was get out of that area. He was scared to death. So it wasn't really necessary for the-[to] safeguard the kids to keep [him] trapped in there. To really defuse the situation, you let him go and be gone."
Lopez acknowledges the trial court's comments at sentencing but contends that they do not indicate the trial court's view on the issue of whether the evidence at trial supported a finding that Lopez intended Gonzalez to commit an assault with a deadly weapon on Cendejas. Lopez argues that the trial court's comments "show no more the judge's perception that [Lopez's] action in holding the door shut and calling Gonzalez over showed him to be grossly negligent or recklessly indifferent to the consequences of his actions. . . . They do not evidence a belief on the judge's part that [Lopez] shared or supported any assaultive intent that Gonzalez had." Lopez contends that it is reasonably probable that, in response to a new trial motion, the court would have concluded that Lopez did not intend for Gonzalez to commit an assault with a deadly weapon on Cendejas.
We reject Lopez's characterization of the trial court's remarks. The trial court's comment that Lopez acted culpably in choosing to "turn [Cendejas] over to [Gonzalez]," and the observation that Lopez knew Gonzalez was out of control and had a gun, indicate that the trial court viewed the evidence as supporting a finding that Lopez intentionally called over Gonzalez to commit an assault with a deadly weapon on Cendejas.
Further, even without the benefit of the trial court's comments at sentencing, we would conclude that based on the evidence presented at trial, it is not reasonably probable that the trial court would have granted a new trial. Specifically, although Lopez contends the trial court would have concluded that the People did not meet their burden to prove that Lopez intended Gonzalez to carry out an assault with a deadly weapon on Cendejas, Lopez's own admissions to Detective Harvey amply satisfy the People's burden. According to Lopez's own statement, he trapped Cendejas in the house and called over Gonzalez because he thought Gonzalez was going to "fight with" Cendejas, "do something to send a message to him" and "really scare him." Because these statements support a finding that Lopez intended Gonzalez to commit an assault with a deadly weapon on Cendejas, it is not reasonably probable that the trial court would have granted a motion for a new trial.
DISPOSITION
The judgments as to both Gonzalez and Lopez are affirmed. Gonzalez's case is remanded to the trial court for resentencing for the limited purpose of considering whether to exercise its discretion to strike or dismiss the firearm enhancement pursuant to section 12022.53, subdivision (h).
IRION, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.