People v. Limon CA2/6 ( 2021 )

Filed 9/16/21 P. v. Limon CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B299877
(Super. Ct. No. 18CR10195)
Plaintiff and Respondent, (Santa Barbara County)
v.
JONATHAN ISAIAH LIMON,
Defendant and Appellant.
Jonathan Isaiah Limon appeals from the judgment entered
after a jury had convicted him of the willful, deliberate, and
premeditated attempted murder of John Doe 2 (count 2 – Pen.
Code, §§ 187, subd. (a), 189);1 assault with a semiautomatic
weapon upon John Doe 2 (count 5 – § 245, subd. (b)); robbery of
John Doe 3 (count 3 – § 211); and assault with a deadly weapon,
to wit, a knife, upon John Doe 1 (count 4 – § 245, subd. (a)(1)). As
to the attempted murder, the jury found true an allegation that
1
All statutory references are to the Penal Code.
appellant had personally discharged a firearm causing great
bodily injury (§ 12022.53, subd. (d)). As to the assault with a
deadly weapon, the jury found true an allegation that appellant
had personally inflicted great bodily injury (§ 12022.7, subd. (a)).
As to all counts, the jury found that the offenses had been
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). Appellant was sentenced to a determinate term of
four years plus an indeterminate term of 40 years to life.
Appellant contends: (1) The trial court erroneously denied
his request to instruct on self-defense as to count 4, assault with
a deadly weapon, because the victim hit him with a shovel before
appellant stabbed the victim. (2) The trial court violated his due
process rights by giving the standard jury instruction on
evaluating eyewitness identification without deleting language
concerning witness certainty. (3) The case should be remanded to
the trial court with directions to afford him an opportunity to
make a record of mitigating youth-related evidence pursuant to
People v. Franklin (2016) 63 Cal.4th 261 (Franklin). We affirm
without prejudice to appellant’s filing a motion in the trial court
under section 1203.01 for the purpose of making a record of such
evidence.
Relevant Facts
Count 4 – Assault with a Deadly
Weapon upon John Doe 12
John Doe 1 was a member of the West Park criminal street
gang. Appellant was a member of the Northwest criminal street
gang. Appellant’s gang moniker was “Vago.” A gang expert
testified: “West Park and Northwest are very bitter rivals. . . .
2
Appellant was acquitted on count 1, which charged him
with the attempted murder of John Doe 1.
2
[W]e’ve had murders. We’ve had shootings. We’ve had stabbings.
They can’t stand each other . . . .”
In December 2016 Officer Brandan Gonzalez went to a
location in response to a report of a fight. Two persons – S.S. and
N.D. – ran toward him “yelling . . . their friend needed help.” The
friend was 15-year-old John Doe 1. He had several stab wounds.
John Doe 1 told Officer Reid Goeckner that “three or four
subjects [had] attacked him in [an] alleyway.” The suspects had
shouted, “‘Fuck West Park, fuck Northwest.’” John Doe 1 did not
recall being stabbed and did not identify his assailants.
N.D. testified as follows: At the time of the stabbing, he
was an active member of West Park. S.S. “was . . . a West Park
member or associate.” N.D., S.S., and John Doe 1 were
passengers in a vehicle that was being followed by another
vehicle. The occupants of the other vehicle were from Northwest
and wanted to fight the occupants of N.D.’s vehicle. The
occupants of both vehicles were throwing gang signs at each
other. N.D.’s vehicle stopped in an alley. N.D. assumed that
“[t]he guys from Northwest” were going to follow the vehicle into
the alley. N.D. and S.S. got out of the vehicle. John Doe 1
remained inside with the driver, “Nene.” John Doe 1 “had a
shovel in his hands” or “was . . . reaching for the shovel.” N.D.
and S.S. climbed over a fence along the side of the alley. N.D.
heard a “car come” into the alley. He “heard people yelling
‘Northwest.’” Because of the fence, he could not see what was
happening in the alley. When the yelling stopped, N.D. and S.S.
climbed back over the fence into the alley. N.D. saw John Doe 1
in the alley. Blood was “coming through [his] sweater.” When
John Doe 1 was in the hospital, he sent a Facebook message to
3
N.D. saying that Vago had stabbed him. N.D. identified
appellant as Vago.
J.R. 1 was a member of West Park. He testified that John
Doe 1 had said that Vago had stabbed him. J.R. 1 identified
appellant as Vago. J.R. 1 knew appellant because they had been
housed together for about one year in the same dorm at Los
Prietos Boys Camp.
The day after the stabbing, John Doe 1 and J.R. 2 had a
conversation via messages on Facebook. John Doe 1 said:
“‘[T]hey [the Northwest gang members in the other vehicle]
followed us . . . . They went by [our] car and said Fuck West
Park. . . . [W]e went back to [the alley] and [N.D.] got off with the
other fool [S.S.]. Nene and I stayed, and shit, then they came.
Vago rushed me a bit, then I got a shovel and hit him three
times. Then somebody grabbed me and they took the shovel.
That’s when Vago stuck me, because my neck got wet and started
hurting. Jesse [apparently one of the Northwest gang members]
got my knee and arm and back . . . and I couldn’t get up. I was on
the floor and they kept rushing me. Then somebody hit me with
a shovel on my dome [head] because my eyesight went black.
After that, they all left, and Jesse was still hitting me till Nene
stopped it.’” “‘I got hit with a bat on my knee and back. It’s hard
for me to walk.’”
In a Facebook message to a different person, A.G., John
Doe 1 said that four persons, including Vago, had attacked him.
He had been stabbed once in the neck and seven times in the
back.
4
Counts 2 and 5 – Attempted Murder of and Assault
with a Semiautomatic Firearm upon John Doe 2
John Doe 2 was 16 years old. He was not a gang member.
While he was walking home one evening, a car stopped alongside
him. Appellant got out of the car. John Doe 2 “recognized his
face from junior high school.” When John Doe 2 was in seventh
grade, appellant was in eighth grade.
Someone inside the car said to John Doe 2, “‘“What’s up?
You bang?”’” John Doe 2 replied, “‘I don’t bang, but what’s up?’”
People in the car said, “‘Fuck that, fool, he bangs.’” Appellant
aimed a gun at John Doe 2 and shot him five times. The shots
were fired in rapid succession. John Doe 2 fell to the ground.
The next day, appellant bragged that the shooting was “‘All me.’”
Count 3 – Robbery of John Doe 3
J.F., who was 14 years old, and her 12-year-old brother,
John Doe 3, were walking home. A car pulled alongside them.
Someone inside the car asked, “‘Where are you from? ” “‘Do you
bang?’” John Doe 3 answered, “‘No.’” He heard someone say
“‘Northwest.’”
“[F]our guys stepped out of the car.” They were yelling,
“‘Fuck West Park.’” J.F. told her brother to run.
Two persons from the car ran toward John Doe 3, who tried
to run away. The two persons caught up to him. They demanded
his hat, cellphone, and password for the phone. John Doe 3
complied with the demand. The two persons then walked back
toward the car.
The robbery occurred during the late afternoon. That
night, John Doe 3 watched a YouTube music video depicting
members of Northwest. Appellant was in the video. John Doe 3
recognized appellant as one of the persons who had robbed him.
5
The prosecutor asked John Doe 3, “[H]ow certain are you that the
person you saw on that video was the person that stole your cell
phone and your hat?” John Doe 3 replied, “I was 100 percent
sure.”
Trial Court’s Denial of Appellant’s Request to
Instruct on Self-Defense as to Count 4
The trial court denied appellant’s request to give CALCRIM
No. 3470 on self-defense. CALCRIM No. 3470 provides in
relevant part: “The defendant acted in lawful self-defense if: 1.
The defendant reasonably believed that he was in imminent
danger of suffering bodily injury; 2. The defendant reasonably
believed that the immediate use of 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.”
Appellant contends that the trial court erroneously refused
to instruct on self-defense as to count 4 – assault with a deadly
weapon upon John Doe 1. Appellant told the court that his claim
of self-defense was based on evidence that John Doe 1 had “hit
him multiple times . . . with a shovel.” In the Facebook message
sent to J.R. 1, John Doe 1 said: “Vago rushed me a bit, then I got
a shovel and hit him three times. Then somebody grabbed me
and they took the shovel. That’s when Vago stuck me . . . .” The
trial court ruled, “The evidence [concerning John Doe 1’s use of
the shovel] is not sufficient to raise reasonable inferences of self-
defense, it essentially would be speculative for a jury . . . .”
“[T]he trial court is required to instruct on a defense . . .
only if substantial evidence supports the defense. [Citations.] . . .
On review, we determine independently whether substantial
evidence to support a defense existed.” (People v. Shelmire (2005)
130 Cal.App.4th 1044, 1054-1055.) “Evidence is substantial if a
6
reasonable jury could find the existence of the particular facts
underlying the instruction.” (People v. Lee (2005) 131
Cal.App.4th 1413, 1426.) “In determining whether the evidence
is sufficient to warrant a jury instruction, the trial court does not
determine the credibility of the defense evidence . . . .” (People v.
Salas (2006) 37 Cal.4th 967, 982.)
Substantial evidence does not support a jury instruction on
self-defense. Appellant was not entitled to the instruction
because he initiated the gang confrontation by seeking out
appellant for the purpose of fighting him. John Doe 1 hit
appellant with a shovel in self-defense when appellant “rushed”
him. “It is well established that the ordinary self-defense
doctrine—applicable when a defendant reasonably believes that
his safety is endangered—may not be invoked by a defendant
who, through his own wrongful conduct (e.g., the initiation of a
physical assault or the commission of a felony), has created
circumstances under which his adversary's attack or pursuit is
legally justified.” (In re Christian S. (1994) 7 Cal.4th 768, 773,
fn. 1.)
In his reply brief appellant argues: “A defendant does not
lose the right to defend himself against deadly force if he starts a
fight. An aggressor using non-deadly force (such as ‘rushing’
someone) who meets with deadly force in response (an attack
with a shovel) is entitled to defend himself with deadly force.
[Citation.]” (See CALCRIM No. 3471 [“if the defendant used only
non-deadly force, and the opponent responded with such sudden
and deadly force that the defendant could not withdraw from the
fight, then the defendant had the right to defend himself with
deadly force”].)
7
The evidence is insufficient to show that John Doe 1 used
deadly force when he hit appellant with the shovel. A shovel is
not an inherently deadly weapon. (People v. Aledamat (2019) 8
Cal.5th 1, 6 [“Because a [shovel] can be, and usually is, used for
innocent purposes, it is not among the few objects that are
inherently deadly weapons”].) “‘In determining whether an object
not inherently deadly or dangerous is used as such, the trier of
fact may consider the nature of the object, the manner in which it
is used, and all other facts relevant to the issue.’” (In re B.M.
(2018) 6 Cal.5th 528, 533.) Here, there is no evidence as to the
nature of the shovel and the manner in which John Doe 1 used it
to “hit” appellant. John Doe 1 did not say where he had hit
appellant or how hard he had hit him.
Moreover, John Doe 1 said he had lost possession of the
shovel when appellant stabbed him: “[S]omebody grabbed me
and they took the shovel. That’s when Vago stuck me . . . .”
Thus, at the time of the stabbing, appellant had no reason to
believe he was in imminent danger of suffering bodily injury from
John Doe 1’s use of the shovel. John Doe 1 had been disarmed by
appellant’s accomplices. Accordingly, the defense of self-defense
was not available to appellant.
CALCRIM No. 315
The trial court gave CALCRIM No. 315, the standard jury
instruction on factors to be considered in evaluating the
truthfulness and accuracy of eyewitness identification testimony.
Appellant claims that the instruction violated his federal and
state due process rights because it included the following factor:
“How certain was the witness when he or she made the
identification?”
8
Appellant’s claim is forfeited because he expressly
requested that the court give CALCRIM No. 315 and did not ask
that the instruction be modified to delete the certainty factor. In
similar circumstances the California Supreme Court held that
the defendant had forfeited a challenge to the certainty factor in
CALJIC No. 2.92, the predecessor of CALCRIM No. 315. (People
v. Sanchez (2016) 63 Cal.4th 411, 461 [“If defendant had wanted
the court to modify the instruction [CALJIC No. 2.92], he should
have requested it. The trial court has no sua sponte duty to do
so”]; see also People v. Ward (2005) 36 Cal.4th 186, 213-214 [no
sua sponte duty to modify wording of certainty factor in CALJIC
No. 2.92].) CALJIC No. 2.92 provided that the jury should
consider “‘the extent to which the witness is either certain or
uncertain of the identification.’” (Sanchez, supra, at p. 461.)
Appellant argues that he did not forfeit his claim because
the inclusion of the certainty factor in CALCRIM No. 315 violated
his due process rights and therefore “affected [his] substantial
rights” within the meaning of section 1259. (See People v.
Valenzuela (2011) 199 Cal.App.4th 1214, 1233 [“‘“‘an appellate
court may review any instruction given even though no objection
was made in the lower court if the substantial rights of the
defendant are affected . . .’”’”]; People v. Anderson (2007) 152
Cal.App.4th 919, 927 [“Failure to object to instructional error
forfeits the issue on appeal unless the error affects defendant’s
substantial rights”].)
Based on our Supreme Court’s recent decision in People v.
Lemcke (2021) 11 Cal.5th 644 (Lemcke), appellant’s substantial
rights were not affected. The Supreme Court concluded that the
defendant had “failed to establish that the trial court's decision to
include the certainty factor in CALCRIM No. 315 violated his due
9
process rights or otherwise constituted error under the
circumstances presented here.” (Id. at p. 669.) The Supreme
Court reasoned: “[W]e find nothing in CALCRIM No. 315’s
instruction on witness certainty that operates to ‘lower the
prosecution’s burden of proof.’ . . . [T]he instruction does not
direct the jury that ‘certainty equals accuracy.’ [Citation.] Nor
does the instruction state that the jury must presume an
identification is accurate if the eyewitness has expressed
certainty. [Citation.] Instead, the instruction merely lists the
witness’s level of certainty at the time of identification as one of
15 different factors that the jury should consider when evaluating
the credibility and accuracy of eyewitness testimony. The
instruction leaves the jury to decide whether the witness
expressed a credible claim of certainty and what weight, if any,
should be placed on that certainty in relation to the numerous
other factors listed in CALCRIM No. 315. Indeed, even [the
defendant] acknowledges that, on its face, the instruction is
‘superficially neutral.’”3 (Id. at p. 657.)
Request that Case be Remanded for a Franklin Proceeding
Appellant was a juvenile when he committed the offenses.
He “was sentenced in [July 2019, almost three years] after the
3
Nevertheless, the Supreme Court stated: “[W]e believe
there is a risk that the current version of the instruction will
prompt jurors to infer that an eyewitness’s certainty in an
identification is generally a reliable indicator of accuracy.
Accordingly, in the exercise of our supervisory powers, we direct
our trial courts to omit the certainty factor from CALCRIM No.
315 until the Judicial Council has the opportunity to consider
how the language might be better worded to minimize juror
confusion on this point.” (Lemcke, supra, 11 Cal.5th at p. 669.)
10
Supreme Court decided . . . Franklin[, supra,] 63 Cal.4th 261 . . . ,
which held that when a juvenile offender receives an
indeterminate life sentence, the offender must be ‘given adequate
opportunity at sentencing to make a record of mitigating evidence
tied to his youth.’ (Id. at p. 269.)” (People v. Medrano (2019) 40
Cal.App.5th 961, 963 (Medrano).) The presentation of mitigating
evidence at sentencing is referred to as a “Franklin proceeding.”
(In re Cook (2019) 7 Cal.5th 439, 450, fn. 3 (Cook).) The evidence
may be considered at a later youth offender parole hearing.
Notwithstanding his indeterminate sentence of 40 years to life,
appellant is “eligible for release on parole at a youth offender
parole hearing during [his] 25th year of incarceration.” (§ 3051,
subd. (b)(3).)4
Appellant requests that the matter be remanded to the
trial court to give him an opportunity to make a record of
mitigating youth-related evidence. “But because [appellant] was
sentenced [almost three] years after Franklin, and because
nothing in the record indicates that [he] lacked an adequate
4
“The goal of [a Franklin proceeding] is to provide an
opportunity for the parties to make an accurate record of the
juvenile offender’s characteristics and circumstances at the time
of the offense so that the Board [of Parole Hearings], years later,
may properly discharge its obligation to ‘give great weight to’
youth-related factors (§ 4801, subd. (c)) in determining whether
the offender is ‘fit to rejoin society’ despite having committed a
serious crime ‘while he was a child in the eyes of the law’
[citation].” (Franklin, supra, 63 Cal.4th at p. 284; see § 4801,
subd. (c) [“the board . . . shall give great weight to the diminished
culpability of juveniles as compared to adults, the hallmark
features of youth, and any subsequent growth and increased
maturity of the prisoner in accordance with relevant case law”].)
11
opportunity at sentencing to make a record of mitigating youth-
related evidence, we see no basis to order the [requested]
relief . . . . We note, however, that the Supreme Court has
recently held that a juvenile offender whose conviction and
sentence are final may file a motion under section 1203.01 for the
purpose of making a record of mitigating youth-related evidence.
(In re Cook[, supra,] 7 Cal.5th [at pp.] 446-447 . . . .) We
accordingly affirm without prejudice to [appellant’s] filing a
motion ‘for a Franklin proceeding under the authority of section
1203.01’ and Cook.” (Medrano, supra, 40 Cal.App.5th at p. 963.)
Section 1203.01 “provides that, postjudgment, the trial court may
generate, collect, and transmit information about the defendant
and the crime to the Department of Corrections and
Rehabilitation.” (Cook, supra, 7 Cal.5th at p. 447.)
Disposition
“The judgment is affirmed without prejudice to
[appellant’s] filing a motion ‘for a Franklin proceeding under the
authority of section 1203.01’ and Cook[, supra, 7 Cal.5th at pp.
446-447, 460].” (Medrano, supra, 40 Cal.App.5th at p. 968.)
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
12
John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Steven A. Brody, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, Rene Judkiewicz, Deputy
Attorney General, for Plaintiff and Respondent.