People v. Quintero CA5 ( 2021 )

Filed 8/23/21 P. v. Quintero CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078802
Plaintiff and Respondent,
(Super. Ct. No. BF167482)
v.
JOEL REYMUNDO QUINTERO, et al., OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant Joel Reymundo Quintero.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant Victor Manuel Quintero.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Robert K.
Gezi, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
Brothers Joel and Victor Quintero were jointly tried for gang-related murder and
other crimes arising out of a shooting at a gas station and convenience store one night.
The evidence conclusively established the Quintero brothers possessed a single firearm
and initiated a physical confrontation with two other brothers—Rolando and Eraldo
Castro.1
After the initial confrontation, the parties separated but the Castros did not back
down. Ultimately, gunfire killed Eraldo.
The Quintero brothers were acquitted of murder but convicted of voluntary
manslaughter and all other charges. The jury also returned true findings on gang-related
crime and personal firearm use enhancements. Together, the Quinteros raise a litany of
claims to challenge the convictions, enhancements, and their respective sentences.
As explained in great detail below, we reject each contention except for a request
to modify restitution. We will also strike two convictions for necessarily lesser included
offenses. In all other respects, the judgment will be affirmed.
BACKGROUND
Charges
The Kern County District Attorney charged Joel with the following crimes:
Murder (Pen. Code,2 § 187, subd. (a); Count 1), assault with a semiautomatic firearm
(against Rolando) (§ 245, subd. (b); Count 2), assault with a firearm (against Rolando)
(§ 245, subd. (a)(2); Count 3), assault with a semiautomatic firearm (against Eraldo)
(§ 245, subd. (b); Count 4), assault with a firearm (against Eraldo) (§ 245, subd. (a)(2);
Count 5), unlawful firearm possession (§ 29800, subd. (a)(1); Count 10), and active gang
1 We refer to the parties by their first names for clarity and consistency with the
record.
2 All statutory references are to the Penal Code.
2.
participation (§ 186.22, subd. (a); Count 11).3 The charges included numerous
enhancements for prior convictions, gang-related crimes, gang-related special
circumstance murder, and personal firearm use.
The Kern County District Attorney charged Victor with the following crimes:
Murder (§ 187, subd. (a); Count 1), assault with a semiautomatic firearm (against
Rolando) (§ 245, subd. (b); Count 6), assault with a firearm (against Rolando) (§ 245,
subd. (a)(2); Count 7), exhibiting a firearm (§ 417, subd. (a)(2); Count 8), assault with
force likely to cause great bodily injury (§ 245, subd. (a)(4); Count 9), unlawful firearm
possession (§ 29800, subd. (a)(1); Count 10), and active gang participation (§ 186.22,
subd. (a); Count 11). The charges included numerous enhancements for prior
convictions, gang-related crimes, gang-related special circumstance murder, and personal
firearm use.
Trial Evidence
The incident took place at gas station with a convenience store. It was captured on
multiple surveillance cameras. On video, the Quinteros pull in next to one of the gas
pumps. There are several other patrons at the pumps and inside the store. Eventually, as
Joel is standing inside the open driver’s door, the Castros drive through the pumps,
directly past Joel, and park on the store’s side. Joel watches as the Castros turn in front
of him and tracks the car as it drives past.
After the Castros park, they exit their car and walk to the store’s entrance.
Rolando is wearing an open red and black plaid shirt. At the store’s threshold, something
in the parking lot catches Rolando’s attention and he turns his head toward Victor who is
now approaching through the parking lot. Rolando holds the door open and steps aside.
As Victor nears the door, he retrieves a firearm from his waist area, places his hand atop
it, and then replaces the firearm. At this point he is face to face with Rolando.
3 Counts 2 and 3 were dismissed during the trial.
3.
Eraldo then confronts Victor. Victor pushes back and the two begin fighting.
Victor quickly retreats and hands Joel, who by now is walking toward the storefront, the
firearm. Victor resumes the fight. As Joel nears, he pulls out the firearm from his right
side and points it at Eraldo’s head. Joel simultaneously motions with his other hand atop
the firearm in a manner consistent with chambering a round in a semiautomatic firearm. 4
The parties then separate and return to their respective vehicles.
While on the way to the pump, Joel looks back and points at the Castros multiple
times. He again retrieves an object from the same area from which he had just pulled the
firearm moments prior. Joel eventually reenters the driver’s seat. Victor lingers near the
passenger side before jogging to the storefront to retrieve a hat he lost during the
confrontation.
Meanwhile, the Castros convene near the driver’s door to their car. They converse
while facing the Quintero car. When Victor goes to pick up his hat, the Castros visibly
react to his presence.
As Victor returns to the Quintero car, Joel reverses it quickly with the door ajar
before closing it. Victor reenters the passenger seat after returning with his hat.
Meanwhile, Rolando enters the driver’s seat to their vehicle; Eraldo remains near
the parking spot. Seconds later, Rolando drives through the parking lot and sideswipes5
the driver’s side of the Quintero car. He continues and drives past and around the pump.
At the same time, Eraldo uses the car as cover, rushes from the parking spot, and throws a
handful of punches at Joel through the driver’s window. Within seconds he is shot from
inside the Quintero vehicle and later passes away.
4 A law enforcement officer testified and explained these mechanics to the jury.
5A law enforcement officer estimated the collision occurred at approximately
“[t]wenty to 25 miles per hour.”
4.
Law enforcement quickly identified the Quinteros as the shooting party,
ascertained their location, and set out to arrest them. The Quinteros did not immediately
surrender.6 One law enforcement officer testified overhearing Victor state, “I guess I
killed him.”
Although no firearm was found, the evidence indicated Joel had stolen a firearm
within two months prior to the shooting. He also posted a picture of a semiautomatic
firearm on Facebook two days before the crime.
A gang expert testified the Sureño and Norteño gangs are rival gangs. The
Quinteros were Sureño gang members. Sureños identify with the color blue while
Norteños identify with the color red. The “Sureños have a standing order to attack any
[Norteños] when they come into contact with them” “but that doesn’t happen every single
time they come across paths.” The Sureños maintain “dominance” in the region by
“attacking” rivals and committing crimes to intimidate the community.
On a prior occasion, the Quinteros had accosted a man with a red bandana. On
another, Victor had assaulted a man wearing a red shirt.7
Verdict and Sentence
The Quinteros were acquitted of murder but found guilty of voluntary
manslaughter, a lesser included offense. The jury also returned guilty verdicts for all
other counts and true findings for all enhancements.8 Joel was sentenced to serve
54 years, four months in prison. Victor was sentenced to serve 36 years, four months in
prison.
6
The parties stipulated Victor surrendered in 20 minutes. Joel surrendered in
75 minutes.
The parties stipulated Victor was “convicted of a misdemeanor … battery” for
7
this incident. Joel was not involved.
8
The prior conviction enhancements were found true by the court in a bifurcated
proceeding.
5.
DISCUSSION
Victor raises the following claims: (1) The People failed to disprove self-defense;
(2) The People failed to prove Victor aided and abetted the shooting; (3) The People
failed to prove Victor personally used a firearm to commit manslaughter; (4) The People
failed to prove the crimes were gang-related; (5) The People failed to prove Victor
committed assault with a firearm; and (6) The restitution order should reflect liability is
joint and several.
Joel joined Victor’s arguments regarding self-defense, gang-related crimes, and
restitution. He adds two arguments. One, the prosecutor committed error by shifting the
burden of proof during closing argument.9 Two, the trial court failed to stay the sentence
imposed for assault with a firearm (Count 4).
The People oppose each contention but agree the restitution order should reflect
liability is joint and several. They add the convictions for Counts 5 and 7 should be
stricken as necessarily lesser included crimes. After careful consideration, we agree with
the People on each point.
ANALYSIS
We will first resolve the Quinteros’s joint claims. Then we will consider Victor’s
contentions. Third, we address Joel’s arguments. Last, we turn to the lesser included
conviction issue.
I. Joint Claims
The joint claims challenge whether the evidence was sufficient to disprove self-
defense, whether the evidence sufficiently proved the crimes were gang-related, whether
the prosecutor misstated the law in closing argument, and whether the restitution order
should reflect liability is joint and several. We conclude the evidence was sufficient on
9 Victor joins this claim.
6.
both points, the prosecutor did not err, and agree the restitution order should reflect joint
and several liability.
A. Self-Defense Sufficiently Disproven
The Quinteros argue they “full[y] and complete[ly]” ceased “hostilities” and
“absolutely were within their right to self-defense in the face of the Castro brothers’
unprovoked two-pronged attack.” However, applying the reviewing standard leads us to
conclude the jury could reasonably find beyond a reasonable doubt the Quinteros had not
clearly withdrawn from the fight prior to the shooting. Alternatively, the jury could have
found the responsive gunfire unreasonable.
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains 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. Lindberg (2008) 45 Cal.4th 1,
27 (Lindberg).) “We presume in support of the judgment the existence of every fact the
trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility.” (Ibid.)
The prosecution bears the burden to disprove self-defense. (People v. Rodarte
(2014) 223 Cal.App.4th 1158, 1168.) An initial aggressor has no right to self-defense
unless he or she “really and in good faith” withdraws from combat. (People v. Trevino
(1988) 200 Cal.App.3d 874, 879.) If, however, “a victim of a simple assault engages in a
sudden and deadly counterassault, the original aggressor need not attempt to withdraw,
7.
and may reasonably use necessary force in self-defense.”10 (Ibid.; CALCRIM No. 3471.)
“[A]n original aggressor may communicate withdrawal either by words or by conduct.”
(People v. Hernandez (2003) 111 Cal.App.4th 582, 588.)
Here, the jury could have reasonably concluded the Quinteros had not clearly
withdrawn. After all, they remained within striking distance of the Castros the entire
time leading up to the shooting. In fact, Joel repeatedly pointed at the Castros and at
various times wielded a firearm. When Victor exited the vehicle to retrieve his hat, the
Castros are visibly apprehensive. These facts readily support a conclusion withdrawal
was not reasonably communicated, let alone accomplished in actual good faith.
The jury could also have concluded, notwithstanding withdrawal, the gunshot was
excessive. Certainly, a person sitting in a car after being sideswiped and punched would
justifiably feel fear.11 Whether immediately resorting to gunfire is a reasonable reaction
is a highly fact-intensive inquiry naturally left to the jury.
The fact is in this case neither Quintero suffered serious, if any, injury. With no
reason to believe the Castros were armed with a weapon,12 the jury could reasonably
believe the hasty resort to deadly force was unnecessary. This is especially so where the
Castro vehicle was neither an obstacle nor an obvious threat due to the fact it had driven
beyond the collision, and lack of direct insight into either Quintero’s state of mind.13 (Cf.
10
Although not directly at issue on appeal, we note this sudden-deadly-
counterattack caveat is inapplicable to initial aggressors that commit a felonious, rather
than simple, assault. (People v. Salazar (2016) 63 Cal.4th 214, 249.) The trial court
nonetheless instructed the jury with this exception to withdrawal.
11 There was no direct evidence introduced to prove either Quintero’s state of
mind.
12Victor argues Eraldo used deadly force with his hands. This, again, is a factual
issue the jury could have reasonably resolved against the Quinteros based on the
evidence, particularly the lack of both injury and direct evidence of mental state.
13The surveillance video depicts Joel, after being sideswiped, driving forward a
few feet before braking to a complete stop. After Joel brakes to a complete stop, Eraldo
8.
People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [actual belief in self-defense must be
founded on evidence, albeit direct or circumstantial].)
Under either scenario, the evidence was sufficient for the jury to conclude pure
self-defense disproven beyond a reasonable doubt.
B. The Crimes Were Sufficiently Gang-Related
To attack the gang enhancement, the Quinteros claim “the record lacked
substantial evidence” the shooting “was done ‘with the specific intent to promote, further,
or assist in any criminal conduct by gang members.’ ” Specifically, they contend the
manslaughter verdict indicates the shooting was either due to provocation or self-
defense—two mental states inconsistent with the gang enhancement. We disagree.
“There are two ‘prongs’ to the [gang-related crime] enhancement. [Citation.]
First, the prosecution is required to prove that the underlying felonies were ‘committed
for the benefit of, at the direction of, or in association with any criminal street gang.’
[Citation.] Second, there must be evidence that the crimes were committed ‘with the
specific intent to promote, further, or assist in any criminal conduct by gang members.’ ”
(People v. Rios (2013) 222 Cal.App.4th 542, 561.)
Both prongs are proven here.14 The jury could have concluded the motive
underlying the entire episode was gang-related. After all, this was not the first time the
Quinteros had accosted someone over wearing the color red. As the gang expert testified,
confrontations between rival gangs are expected and normal. Viewing the evidence in
the light most favorable to the judgment, this case was not exceptional.15
is shot, and then Joel continues driving forward, albeit with one tire disabled from the
collision.
14The parties’ briefs focus on the second prong but we nonetheless examine the
evidence for the first prong.
15This is true despite no evidence the Castros were actual gang rivals. The jury
could conclude the Quinteros perceived them as rivals and initiated a gang-related
encounter.
9.
The surveillance videos showed Victor aggressively approach Rolando with a
fireram despite having little to no interaction. These are abnormal actions the jury could
readily conclude were gang-related based on the expert’s testimony describing gang
rivalry, the colored clothing involved, and Victor’s prior history. Through this lens, the
assaultive crimes preceding the shooting were associated with the Sureño gang, and
because those assaults quickly culminated in a shooting, the shooting likewise was gang-
associated.
The evidence was also sufficient to prove the crimes were committed with the
intent to aid criminal conduct by gang members. For the initial assaultive crimes, the
evidence is axiomatic. Those crimes were jointly committed by two gang members. It is
not required the intent to aid criminal conduct apply to conduct other than the crimes
actually committed. (People v. Albillar (2010) 51 Cal.4th 47, 66.) “[I]f substantial
evidence establishes that the defendant intended to and did commit the charged felony
with known members of a gang, the jury may fairly infer that the defendant had the
specific intent to promote, further, or assist criminal conduct by those gang members.”
(Id. at p. 68.)
Admittedly, whether the shooting itself was committed with the intent to aid
criminal conduct by gang members is more complicated than simply tracing its origin to
the preceding gang-related assault. This is so because there is scant evidence the
Quinteros intended to jointly commit voluntary manslaughter. We conclude, however,
the evidence was sufficient to prove it was committed with the intent to “promote,
further, or assist” the preceding assaultive crimes.
Specifically, the jury could have reasonably found the shooting was intended to
and necessary to permit the Quinteros to escape. Escape from the crime scene furthers or
assists the preceding gang-related crimes by attempting to avoid liability or otherwise
conclude the encounter. Indeed, they did flee and later resisted surrender. These actions
10.
are indicative of wrongdoing and constitute additional circumstantial evidence the
shooting was not innocently committed.
Finally, we also reject the argument the specific intent to promote or assist any
criminal conduct by gang members is inconsistent with self-defense. A person may
concurrently entertain multiple intents. (See, e.g., People v. Powell (2018) 5 Cal.5th 921,
954-955.) For example, the jury here could have reasonably believed the shooting was
committed both defensively and to escape liability for the gang-related assaults. For
these reasons, we find the gang-related crime enhancement sufficiently proven for each
crime.
C. No Prosecutorial Error
The Quinteros16 “contend[] the prosecution shifted the burden of proof with
respect to self-defense during closing argument, thereby lightening the prosecution’s
burden of proof and depriving [them of] fair trial due process under both the United
States and California Constitutions.” In claiming error, they argue the prosecutor
misstated the law by telling the jury the Quinteros were guilty unless the Castros had no
right to self-defense.
In other words, if the Castros were justified in pursuing the Quinteros, then the
Quinteros were guilty. We do not so narrowly view the prosecution argument.
1. Additional Background
Prior to closing arguments, the court instructed the jury with the law necessary to
decide the case. As relevant to this issue, the jury was informed:
“The defendant is not guilty of murder if he was justified in
killing someone in self-defense or defense of another.
[¶] … [¶]
16 This claim was raised by Joel and joined in by Victor.
11.
“The People have the burden of proving beyond a reasonable
doubt that the killing was not justified. If the People have not
met this burden you must find the defendant not guilty of
murder.”
The jury was also 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 a heat of passion.
[¶] …[¶]
“The People have the burden of proving beyond a reasonable
doubt that the defendant did not kill as a result of a sudden
quarrel in the heat of passion. If the People have not met this
burden, you must find the defendant not guilty of murder.”
Next, the instructions explained:
“A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed a person
because he acted in imperfect self-defense or imperfect
defense of another. If you conclude that the defendant acted
in complete self-defense or defense of another, his action was
lawful, and you must find him not guilty of any crime.
“The difference between complete self-defense or defense of
another and imperfect self-defense or imperfect defense of
another depends on whether the defendant’s belief in the need
to use deadly force was reasonable. The defendant acted in
imperfect self-defense or imperfect self-defense of another if
the defendant actually believed that he or someone else was
in imminent danger of being killed or suffering great bodily
injury and the defendant actually believed that immediate use
of deadly force was necessary to defend against the danger,
but a least one of those beliefs was unreasonable. … The
People have the burden of proving beyond a reasonable doubt
that the defendant was not acting in imperfect self-defense or
imperfect defense of another. If the People have not met this
burden, you must find the defendant not guilty of murder.”
12.
Last, the jury was told:
“[A] person who engages in mutual combat or starts a fight
has a right to self-defense, only if: One, he actually, and in
good faith, tries to stop fighting; two, he indicates by word or
by conduct to his opponent in a way that a reasonable person
would understand that he wants to stop fighting and that he
has stopped fighting; and, three, he gives his opponent a
chance to stop fighting.”
After these instructions, the prosecutor, in rebuttal argument, argued Victor was
the “initial aggressor …. The question is do you see this as one continuous action or do
you see this as three discrete breaks in action?” The prosecutor then emphasized the law
necessary for an initial aggressor to withdraw and regain the right to self-defense. The
argument continued by stating the Castros could pursue the Quinteros:
“They can pursue an assailant until the danger of death or
bodily injury has passed.
“This is a gun. Now, I could understand if they’re carrying
around some brass knuckles and they’re 25 feet off. All right.
“This is a gun. A gun sends a projectile downrange, without
any issue, in a second.
“You are allowed to pursue an assailant.
“You’ve seen the video. The first aggressors are Victor and
Joel. Joel’s actually pointed the gun at the guy’s head. He is
allowed to pursue until the danger of death or bodily injury or
unlawful touching has passed. He doesn’t have to retreat.
“So the question is are you willing to provide [the Castros]
the same rights of self-defense?”
At this point an objection was lodged and overruled.
The prosecutor resumed the argument,
“Let’s look at the video. They talk about how Joel walks
back to the car.
13.
“Well, watch the video. What does Joel actually do?
“… Joel’s pointing back. Where is he pointing back to?
“You’ve been out to the scene. He’s pointing back to where
[the Castros] are. He’s pointing back. He’s not just walking
to his car.
[¶] … [¶]
“Again, you have to indicate, by words or conduct, that a
reasonable person would understand you want to stop
fighting.
“What does pointing at somebody you just pulled a gun on
have to do with indicating you want to stop fighting?”
[¶] … [¶]
“You can use the video. There is a slow motion. You can
play it slow. You can play it fast. You can play it however
you want to. But you will not be able to get away from the
fact that after Joel has pointed at them, he’s got a gun in his
right hand yet again.
[¶] … [¶]
“What about that indicates, by words or conduct, that a
reasonable person would understand the fight is over?
“A gun being pulled out again, pointing at them. It doesn’t.
[¶] … [¶]
“There’s nothing in the conduct that shows a reasonable
person would understand it’s over.
“It’s a gun. It’s a gun. At this point, he’s ten feet closer than
he was. He’s pointed it at them. They are allowed to pursue
their assailants. There has been no break in the fighting.
[¶] … [¶]
14.
“[The Castros], their right to use self-defense had not expired.
“They were the initial aggressors. They did not have the right
to self-defense. They can only gain it if you find that they did
those required three steps, and they did not communicate in a
way that a reasonable person would understand it’s over.”
The prosecutor then briefly discussed aiding and abetting, and that either Quintero could
have been the shooter based on the evidence.
The rebuttal argument concluded,
“[The Quinteros] lost their right of self-defense. You can lose
it because they started it all. There was no break whatsoever,
no break where a reasonable person would think that the fight
was over, and you have to go through that process, a
reasonable person.
“[The Castros] can pursue their assailants.
“[The Quinteros] murdered Eraldo Castro. They started it.
They never stopped it.”
2. Analysis
“ ‘ “The applicable federal and state standards regarding prosecutorial misconduct
are well established. ‘ “A prosecutor’s … intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v.
Stanley (2006) 39 Cal.4th 913, 951.) “Regarding the scope of permissible prosecutorial
argument, ‘ “ ‘a prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ” (Ibid.)
15.
“When attacking the prosecutor’s remarks to the jury, the defendant must show
that, ‘[i]n the context of the whole argument and the instructions” [citation], there was ‘a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (People v. Centeno (2014) 60 Cal.4th 659,
667.) “To establish such error, bad faith on the prosecutor’s part is not required.” (Id. at
p. 666.)
Here, were we to consider the lone statement, “[A]re you willing to provide [the
Castros] the same rights of self-defense,” in a vacuum, we might find error. A
“defendant is not required to establish self-defense or the defense of others to be entitled
to a not guilty verdict; he need only raise a reasonable doubt. It ultimately is the
prosecution’s burden to prove the absence of justification beyond a reasonable doubt.”
(People v. Lloyd (2015) 236 Cal.App.4th 49, 63 (Lloyd).)
Considered in proper context, however, the prosecutor’s remarks in this case are
consistent with arguing withdrawal was disproven beyond a reasonable doubt. The
prosecutor simply argued the fact the Castros were allowed to defend themselves meant
the Quinteros had not withdrawn from the fight because the confrontation had not ceased.
To illustrate, just before the objection at issue, the prosecutor stated, “You are
allowed to pursue an assailant” and the Castros were not required to retreat. This neither
conflates nor misstates the law.17 (People v. Watie (2002) 100 Cal.App.4th 866, 876-878
[“the right of a victim to defend himself … is a relevant consideration”]; Hardin, supra,
17 In the trial court, the Quinteros vigorously argued the prosecutor misstated the
law by providing a right to self-defense to the Castros. They argued the Castros had no
right to self-defense because they were not charged with a crime. This argument has no
basis in law. As noted, a victim’s right to self-defense is factually relevant. (People v.
Hardin (2000) 85 Cal.App.4th 625, 632-634 (Hardin).)
16.
85 Cal.App.4th at pp. 632-634 [victim’s right to self-defense appropriate subject of jury
instructions].)
Immediately after the objection, the prosecutor resumed the point by arguing the
Quinteros had not reasonably communicated withdrawal. The argument ultimately
concluded, “[The Quinteros] lost their right of self-defense. You can lose it because they
started it all. There was no break whatsoever ….”
In total, the prosecutor’s remarks are best and most reasonably understood to mean
the Castros could pursue the Quinteros because there was no withdrawal, i.e., the Castros
actions were justifiable because the Quinteros had not withdrawn from the fight, not the
other way around.
On this record, we do not lightly infer the prosecutor placed a burden upon the
Quinteros to prove the Castros were unreasonable. We find no error with the
prosecutor’s argument because it was fair comment18 on the evidence and did not
otherwise undermine fundamental fairness.19
18 The Quinteros also chide the prosecutor for arguing they were generally
unreasonable people. For example, as they fairly summarize the argument, the
prosecutor stated “it was not reasonable for a person to drive around with a loaded
firearm, not reasonable to retrieve a firearm and walk towards a person in anger, not
reasonable to pull out a gun in front of a store, and not reasonable to hit someone who
extends their hand for a handshake.” We have reason to doubt the legal relevancy of
these points. A gang member illegally possessing a firearm has a right to defend himself.
Nonetheless, there was no specific objection to this line of argument. The
argument is thus forfeited. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 [“It is well
settled that making a timely and specific objection at trial, and requesting the jury be
admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of
prosecutorial misconduct for appeal.”].)
Even were we to consider the matter, we would find no error. The instructions
clearly informed the jury which facts involved a reasonableness element. The
prosecutor’s argument the Quinteros were unreasonable in general was irrelevant and not
inflammatory. We do not believe the jury was prejudiced by these comments.
19 The jury was also admonished numerous times the prosecutor bore the burden
to prove facts beyond a reasonable doubt. (E.g., CALCRIM Nos. 220, 224, 505, 570,
17.
D. The Restitution Order Should Reflect Liability Is Joint and Several
Each Quintero was separately ordered to pay full restitution. They now contend
the orders should clearly state restitution is joint and several. The People agree the orders
are ambiguous, and so do we.
“The trial court is required to order restitution to crime victims, and the court has
authority to make the obligation of multiple codefendants joint and several.” (People v.
Neely (2009) 176 Cal.App.4th 787, 800.) “A restitution order should compensate a
victim for actual losses. [Citation.] But it should not overcompensate a victim with a
windfall award.” (People v. Erickson (2018) 30 Cal.App.5th 243, 246.)
Should each Quintero satisfy the full restitution obligation, a windfall would occur
under the court’s order. To avoid this possibility, the trial court should issue amended
orders and abstracts of judgment indicating the restitution obligation is joint and several.
II. Victor’s Claims
Victor raises three insufficient evidence claims: (1) The evidence did not prove he
aided and abetted voluntary manslaughter; (2) The evidence did not prove he personally
used a firearm in committing manslaughter; and (3) He did not commit assault with a
firearm. We find no merit in these contentions.
A. The Evidence Sufficiently Proved Voluntary Manslaughter
Although Victor specifically argues the evidence did not prove he aided and
abetted the shooting, we need not resolve that claim because the evidence sufficiently
proved he directly committed voluntary manslaughter. (People v. Guiton (1993)
4 Cal.4th 1116, 1127 [“if there are two possible grounds for the jury’s verdict, one
unreasonable and the other reasonable, we will assume, absent a contrary indication in
571, & 3470.) Although the Quinteros argue the error here was exacerbated by the court
overruling the objection (see, e.g., Lloyd, supra, 236 Cal.App.4th at p. 63 [“court’s action
in overruling the defendant’s objection aggravated the situation”]), it was properly
overruled because there was no error.
18.
the record, that the jury based its verdict on the reasonable ground”].) Put simply, Victor
admitted to killing Eraldo.20
We reach this conclusion despite the fact Joel is last seen with the firearm outside
the vehicle. The jury could reasonably infer he regained possession inside the vehicle.
The firearm was clearly transferable between the Quinteros. The evidence strongly
indicated Joel initially stole the firearm used in the shooting. Then, Victor first possessed
it at the gas station. After committing a crime with it, he passed it to Joel, who also
committed a crime with it. The Quinteros displayed no hesitation in either committing
crimes with the firearm or passing it around. Victor’s admission to shooting is sufficient
to prove he again possessed the firearm, pulled the trigger, and committed manslaughter.
Our holding is not inconsistent with the law. The jury was instructed to consider
the evidence and charges separately for each Quintero.21 Neither the state nor federal
constitution forbids holding each Quintero separately liable as the lone shooter.22
(People v. Palmer (2001) 24 Cal.4th 856, 858 [“If substantial evidence supports a
jury verdict as to one defendant, that verdict may stand despite an apparently
20 Although Victor rigorously asserts his statement, “I guess I killed him,” is
susceptible to varying interpretation, we must view it in the light most favorable to the
verdict. (Lindberg, supra, 45 Cal.4th at p. 27.)
21 CALCRIM Nos. 203 and 3515.
22 Notably, “the People’s use of irreconcilable theories of guilt or culpability,
unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for
it necessarily creates the potential for—and, where prejudicial, actually achieves—a false
conviction or increased punishment on a false factual basis for one of the accuseds.” (In
re Sakarias (2005) 35 Cal.4th 140, 159-160.) Conversely, such usage is “not …
improper as long as it [is] based on the record and made in good faith.” (People v.
Farmer (1989) 47 Cal.3d 888, 923.)
The prosecutor’s argument in this case lands in the latter category. Based on the
evidence, the prosecutor argued either Quintero was the shooter. We discern no bad faith
in the argument.
19.
inconsistent verdict as to another defendant”].) For these reasons, we uphold the
voluntary manslaughter conviction.
B. The Evidence Sufficiently Proved Personal Firearm Use
For the precise reasons the evidence sufficiently proved Victor committed
voluntary manslaughter, it necessarily also proved he personally used a firearm to kill
Eraldo.23
C. The Evidence Sufficiently Proved Assault With Firearm
Victor argues his “momentary display of the handgun qualified as brandishing, not
assault with a firearm.” More specifically, he claims the “act of lifting the handgun from
his pocket and replacing it within five seconds without ever elevating the barrel
horizontally or pointing it at Rolando does not qualify as [an] ‘act with a firearm that by
its nature would directly and probably result in the application of force to a person.’ ”
Based on the record in this case, we disagree.
“ ‘An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.’ ” (People v. Raviart (2001) 93 Cal.App.4th 258,
263.) Assault with a firearm “can be committed by pointing a gun at another person
[citation], but it is not necessary to actually point the gun directly at the other person to
commit the crime.” (Ibid.)
“ ‘[T]he mental state required for assault … is an act done toward the commission
of a battery ….’ ” (People v. Chance (2008) 44 Cal.4th 1164, 1175 (Chance).) “[I]t is a
defendant’s action enabling him to inflict a present injury that constitutes the actus reus
of assault. There is no requirement that the injury would necessarily occur as the very
next step in the sequence of events, or without any delay.” (Id. at p. 1172.)
23 On appeal, the People claim Victor’s earlier firearm use at the storefront
constitutes using “a firearm in the commission” of manslaughter. (§ 12022.5, subd. (a).)
We need not address the precise point because we find the evidence sufficient to prove
direct commission—by firearm—of voluntary manslaughter.
20.
Conduct “sufficient to establish the actus reus required for assault” includes
“positioning [oneself] to strike on the present occasion with a loaded weapon.” (Chance,
supra, 44 Cal.4th at p. 1176.) Victor’s act in drawing a loaded firearm while face to face
with Rolando is sufficient to prove the actus reus for assault.
The jury in this case was entitled to infer Victor’s act in placing his hand atop the
firearm loaded, or at least attempted to load, a round into the chamber. This action sheds
significant light on his mental state as he stood face to face with Rolando. Victor then
struck Rolando, albeit without the firearm, seconds later. The jury could reasonably
conclude Victor withdrew the firearm to shoot or strike Rolando with it but changed his
mind. This sufficiently proves the mental state necessary for assault, i. e., “ ‘an act done
toward the commission of a battery ….’ ” (Chance, supra, 44 Cal.4th at p. 1175.)
Combining the act with his mental state, the evidence sufficiently proved assault with a
firearm, even though he did not discharge, point, or swing the firearm at Rolando. (See
id. at pp. 1175-1176.)
III. Joel’s Claim
Joel “contends the trial court erred in imposing a consecutive sentence on
count 4.” We disagree.
A. Additional Background
The court imposed a consecutive sentence on Count 4, assault with a firearm,
notwithstanding the fact Eraldo—the victim of the assault—was killed moments later.
The court stated, “As to Count 4, the Court is going to find that while it did involve the
same victim as the decedent in this case, it did require and involve a separate objective,
and even though, in this Court’s view, it was during the same course of conduct, it was a
separate act of violence against the same victim that will justify a consecutive term at
one-third the mid term for purposes of Count 4.”
21.
B. Analysis
“Section 654 provides in relevant part: ‘An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.’ [Citation.] Accordingly,
‘[s]ection 654 precludes multiple punishment for a single act or omission, or an
indivisible course of conduct.’ [Citation.] ‘ “Whether a course of criminal conduct is
divisible and therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were incident to
one objective, the defendant may be punished for any one of such offenses not for more
than one.” ’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 717 (Lopez).)
“ ‘[M]ultiple crimes are not one transaction where the defendant had a chance to
reflect between offenses and each offense created a new risk of harm.’ [Citation.]
Under section 654, a course of conduct divisible in time, though directed to one
objective, may give rise to multiple convictions and multiple punishment ‘where the
offenses are temporally separated in such a way as to afford the defendant opportunity to
reflect and renew his or her intent before committing the next one, thereby aggravating
the violation of public security or policy already undertaken.’ ” (Lopez, supra,
198 Cal.App.4th at pp. 717-718.) “If the court makes no express findings on the issue …
a finding that the crimes were divisible is implicit in the judgment and must be upheld if
supported by substantial evidence.” (Id. at p. 717.)
The court here found the conduct divisible in time. After committing the assault
near the storefront, Joel had a clear opportunity to reevaluate his actions and leave. But
he did not. He instead remained, while in control of the vehicle, until someone was
killed. There is no doubt the initial assault and later shooting were distinctly harmful as
each could escalate, and one actually did, into a shootout. We see no error in the court’s
conclusion to impose a consecutive sentence on Count 4.
22.
IV. Convictions For Necessarily Lesser Included Offenses
“In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct.” (People v. Reed (2006)
38 Cal.4th 1224, 1226.) “A judicially created exception to the general rule permitting
multiple conviction ‘prohibits multiple convictions based on necessarily included
offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense within the former.’ ”
(Id. at p. 1227.)
“A semiautomatic firearm assault cannot be committed without also committing a
firearm assault. Therefore, firearm assault is a lesser included offense of a
semiautomatic firearm assault.” (People v. Martinez (2012) 208 Cal.App.4th 197, 199.)
In this case, each Quintero was convicted of semiautomatic firearm assault and
firearm assault as alternative charges.24 After the verdict, the court should have stricken
the lesser included firearm assault convictions (Counts 5 and 7). We will order them
stricken.
24 The charges were pled in the alternative presumably because, absent finding the
actual firearm at issue, there was no ironclad proof the weapon was semiautomatic.
23.
DISPOSITION
The convictions on Counts 5 and 7 are stricken. The trial court is directed to issue
amended orders and abstracts of judgment reflecting both the stricken convictions and
that restitution is a joint and several liability.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P.J.
MEEHAN, J.
24.