People v. Zambrano CA5 ( 2020 )

Filed 12/17/20 P. v. Zambrano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076737
Plaintiff and Respondent,
(Super. Ct. No. F17904027)
v.
ELADIO CISNEROS ZAMBRANO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
David L. Polsky, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D.
Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Eladio Cisneros Zambrano challenges his convictions for second
degree murder and assault with a firearm. On appeal, he contends (1) the trial court erred
in declining to instruct the jury on the heat of passion theory of manslaughter and
(2) insufficient evidence supported the conviction for assault with a firearm. We affirm.
PROCEDURAL SUMMARY
On August 16, 2017,1 the Fresno County District Attorney charged defendant with
murder (Pen. Code, § 187;2 count 1), shooting at an occupied motor vehicle resulting in
death (§ 246; count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3),
possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 4), assault
with a firearm (§ 245, subd. (a)(2) (section 245(a)(2)); count 5); and discharging a
firearm with gross negligence (§ 246.3, subd. (a); count 6). The information further
alleged defendant personally and intentionally discharged a firearm resulting in death
(§ 12022.53, subd. (d)) as to counts 1 and 2, and had served three prior prison terms
(§ 667.5, subd. (b)).
On November 1, the jury returned verdicts finding defendant not guilty of first
degree murder but guilty of the lesser included offense of second degree murder on
count 1, and guilty as charged on all other counts. The jury also found the firearm
allegations on counts 1 and 2 true. Prior to sentencing, the prosecution dismissed one of
the prior prison term allegations, and defendant admitted the remaining two.
On December 18, the trial court sentenced defendant to 44 years to life in prison as
follows: on count 1, 15 years to life, plus a 25-year-to-life firearm enhancement; on
count 2, seven years, stayed pursuant to section 654;3 on count 3, three concurrent years;
1 All dates refer to 2017 unless otherwise noted.
2 All statutes refer to the Penal Code.
3 Finding that counts 1 and 2 were predicated upon the same course of conduct, the trial
court struck count 2’s firearm enhancement based on section 12022.53, subdivision (f)’s
prohibition against multiple punishments for a single criminal act.
2.
on count 4, three consecutive years; on count 5, four consecutive years; and on count 5,
three concurrent years. The court struck the two prior prison term allegations.
On December 21, defendant filed a timely notice of appeal.
FACTS
This case involved the interactions between four people—defendant; his brother
Eddie; a young woman named Sierra Berg; and Tyrod, the father of Sierra’s son—during
two separate but related events: a noninjury shooting that occurred around 6:00 p.m. on
April 18, and a second shooting that occurred about seven hours later around 1:30 a.m. on
April 19, in which Sierra was killed. Both events took place outside defendant’s
mother’s house (the Zambrano home), which was located on the north side of the street,
three houses east of the nearest intersection.
An apartment complex stood on the southwest corner of that intersection, where a
witness (Neighbor 1) lived in an upstairs apartment. Robert and Robert’s mother lived
next door in the house west of the Zambrano home. A married couple (Neighbors 2
and 3) lived across the street from the Zambrano home. A young woman (Neighbor 4)
lived across the street from and a few houses east of the Zambrano home.
Defendant and several family members were living in the Zambrano home at the
time these events occurred. Defendant was staying in the converted garage; his mother,
Eddie, and Eddie’s son Vincent were living in the main house.
Eddie and Sierra’s Relationship
Eddie had known Sierra for about two years. They spent time together and had a
sexual relationship, but Eddie did not consider them to be dating or in a relationship. He
described their interactions as “just a sex thing.” By April, Eddie wanted to stop seeing
Sierra. He testified that Sierra would “go crazy, just go off,” and that he “was trying to
get away from her,” but “she wasn’t having it … [s]he wouldn’t leave [him] alone.”
According to Vincent, who was in his early 20’s, Sierra was always “causing a scene
pretty much, yelling and stuff like that, arguing with [Eddie].” “[S]he brought a lot of
3.
drama and trauma around with her.” For example, she once broke a window on one of
Eddie’s cars.
The Early Part of April 18
Sierra had spent the night at the Zambrano home over Eddie’s objections. Early
the next morning, around 7:00 a.m. on April 18, Tyrod picked her up so she could look
after their son. Though not in a relationship, Sierra and Tyrod were friendly. Tyrod lived
in Sierra’s childhood home with their son and one other person, and Sierra would visit
several times a week to babysit. Tyrod was now in a relationship with another woman.
He was aware of Sierra’s relationship with Eddie and knew Eddie had a brother, but he
did not know defendant personally. At trial, Tyrod explained, “Sierra talks about them
very vividly, the brother and him. She tells me everything. She tells me everything
about them.” Tyrod said Sierra had slept with both defendant and Eddie. But Sierra
mentioned Eddie “[a]ll the time.” According to Tyrod, “she kind of like was obsessed
with seeing him. He—I don’t think it was mutual. I don’t think it was a mutual thing.”
Eddie was “the only person that [Sierra] loved and cared about. Her whole life was
centered around Eddie.”
When Tyrod picked Sierra up that morning, defendant was outside “patrolling in
front of the [Zambrano home], walking back and forth.” Tyrod thought defendant was
“tweaking” like someone on methamphetamine and was acting “almost paranoid.” After
Tyrod dropped Sierra off at their house to watch their son, he went to school. Sierra was
still there when Tyrod came home. He took a shower and fell asleep. While he was
sleeping, Sierra took his car, a 2004 Kia, and left.
Meanwhile, Sierra and Eddie had been arguing about their relationship. Eddie
received a call from Sierra at 1:20 p.m. and they talked until 2:06 p.m.4 At 2:13 p.m., she
4 Records of the calls and text messages extracted from Tyrod’s, Sierra’s, and Eddie’s cell
phones were admitted into evidence. The call records identify the date, time, source, and
duration of the calls, but not their content. The text message records identify the date, time,
4.
texted him, “Leave all my stuff outside…. Everything I ever gave you.… I want it all
back.” A minute later, she added, “I’m done with your ass for good… You don’t care
about me like that then I’m wasting my time.” Then she added, “Or I will take your
dog.”
Tyrod learned that his Kia was missing when he woke up, at which point he “got
upset” and started texting Sierra to bring it back. He sent his first text to her at 2:21 p.m.
Shortly after 3:00 p.m., Neighbor 1, who lived in the apartment complex near the
Zambrano home, saw the Kia parked in front of her apartment complex with a woman
inside. The Kia pulled away and circled the area three times, as if the woman was
looking for someone.
At 3:24 p.m., Tyrod texted Sierra, “Im not mad just bring me my car and ill take
you back over there .. Don’t make me come get it.” At 4:19 p.m., she responded, “Don’t
… I’m going to have almost full tank of gas and some cash for you,” and “I’m not even
driving…. Im with a date near river park.” Tyrod continued to urge Sierra to return the
Kia as soon as possible.
Eddie, who had been picked up by his boss a few hours after Sierra left that
morning, finished work between 3:00 and 4:00 p.m. His boss then dropped him off at a
food truck. He bought a burrito and walked home to eat. Sierra “kept calling and
calling,” so he told her he was still at work. Just before 4:30 p.m., she texted him that she
wanted to talk and indicated she was at his house. He responded at 4:42 p.m., “Ur
tripping, ok? I gota work stop calling me & take that car back.…” Sometime between
4:30 and 6:00 p.m., Eddie’s friend “Rabbit” picked him up and drove them to a casino.
Once at the casino, they split up to gamble.
source, and verbatim content of the text messages. Many of the text messages were also read
into the transcribed record by Detective Loren Kasten at trial. There are some differences
between the verbatim text messages and the text messages as read into the record by Kasten,
mainly in spelling and punctuation. We use the verbatim text messages and note differences in
the transcribed text messages where relevant or helpful.
5.
The Shooting at 6:00 p.m. on April 18
At about 6:00 p.m., upset that Sierra was not responding to his texts, Tyrod used
Uber, a rideshare service, to go to the Zambrano home to look for his Kia. When he
arrived, he did not find the Kia or Sierra, but he saw defendant and another man, later
identified as defendant’s next-door neighbor Robert, standing in the front yard. The Uber
driver parked between Robert’s house and the Zambrano home, and watched as Tyrod
walked behind the Uber and approached the two men.
Tyrod told defendant, “‘Eddie better bring my car back. He and Sierra better bring
my fucking car back.’” At trial, Tyrod acknowledged he argued with defendant and
admitted he “wasn’t nice.” Defendant told Tyrod he did not know anything about the
Kia, but he gave Tyrod Eddie’s cell phone number. Tyrod saw a “‘B’” tattoo on
defendant’s arm and thought Robert was “[a]nother Bulldog.” Tyrod was scared so he
pulled out a knife. He was five feet two inches from defendant when he pulled out the
knife.5 Tyrod testified, “I pulled it out, I stood there, and I said—told him to bring my
car back.” “I said, ‘Where they at? I know you know where they at.’” Tyrod said, “‘I
know you know where she at. You are all fucking.’” Tyrod testified defendant was “a
little more jittery, like—I don’t know if he was on drugs.” He was acting sort of like
Sierra acted when she was on methamphetamine. Tyrod described defendant as “high,
confused,” and his behavior as “territorial.” Tyrod told him, “‘Bring my car back. Tell
Eddie to bring my car back. I know you know where it’s at.’”
At 6:10 p.m., Tyrod attempted to call Eddie, but he did not answer. Then, a
minute later, Tyrod texted Eddie, “Im at your house i want my car now im a get serious.”
5 The parties stipulated to this fact.
6.
Tyrod got into the Uber and the driver started to drive away. Tyrod estimated they
were 100 to 200 feet from the Zambrano home when he heard “gunshots.”6 Tyrod
looked back and saw defendant holding something. He told police he could not be sure,
but it looked like a shotgun. Tyrod testified, “I seen him holding something. I’m not too
sure whether I throw the shotgun. I never seen him shoot at me. I can’t say that he shot
at me. But I know I heard shots. So I keep thinking back when he shot at me. I can’t say
I seen him shoot at me, but I turned around, I seen him there, so I figured, oh, he shooting
at me. And then we drove off.” He added, “I don’t know what it was. I just speculated
after that what it was. I had no idea what kind, what it was really.”
The Uber driver testified that Tyrod talked with the men for “[f]ive to eight
minutes” then came back to retrieve his cell phone from the Uber. After Tyrod talked
with the men for “another two to three minutes,” he came back “pretty quickly” and said,
“‘Drive.’” The driver said, “[T]hat’s when I started looking back and I hear a gunshot
and we drive off.” They had “barely taken off” when he heard the gunshot “coming from
that area, from the house.” He asked Tyrod, “‘Did they just shoot?’” Tyrod responded,
“‘Don’t worry about it, because they’re not going to shoot us.’” The shot did not hit the
Uber or either man inside. The Uber driver testified he glanced back for “a couple
seconds” and saw a man standing in the Zambrano home’s driveway reaching toward the
waistband of his pants. When asked if he saw a gun or firearm, the Uber driver said, “I
did,” but he never clarified what kind of weapon he saw. He said the man was “wearing
glasses,” had “light medium” skin tone, was “[p]robably [in his] 30s,” and was wearing
sweatpants and a white shirt.7
6 Tyrod stated he heard “gunshots,” but the other witnesses reporting hearing only one
gunshot.
7 A photograph of defendant was admitted into evidence at trial. Our review of that picture
shows a man around 30 to 35 years of age with medium-toned skin color. We also note several
witnesses identified defendant at trial as wearing glasses.
7.
When shown a photographic lineup by police, the Uber driver identified someone
other than defendant, and he was also unable to identify defendant as the shooter at trial.
Tyrod told police he did not threaten defendant, but admitted he might have said he
would come back to the Zambrano home if his Kia was not returned. Tyrod also
identified someone other than defendant out of a photographic lineup, though the officer
who administered the lineup noted Tyrod only looked at it for “about 30 seconds” before
making a selection. But at trial, Tyrod identified defendant as the person who shot at him
and ultimately described their confrontation as “mutual combat”—“I beefed with him, we
argued and that’s what happened.”
Neighbors 2 and 3, who lived across the street, also heard the gunshot. Both
testified they were outside in the backyard around 6:00 p.m. when they heard it.
Surveillance Video Footage of Defendant’s Street at 6:00 p.m. on April 18
During trial, the jury was shown surveillance video footage of defendant’s street
taken at 6:00 p.m. on April 18 and at 1:30 a.m. on April 19. The footage was obtained
from two surveillance cameras located on the premises of the nearby apartment complex
(where Neighbor 1 lived). One camera pointed northeast on defendant’s street and
showed the Zambrano home in the distance. The other camera pointed north on
defendant’s street and did not show the Zambrano home. The cameras were motion
activated and only recorded when they detected movement. They did not record sound.
The video footage of defendant’s street, taken at 6:00 p.m. when it was light
outside, showed the apartment complex in the foreground and the Zambrano home in the
distant background partially covered by trees. The camera’s distance from the Zambrano
home, the poor resolution, and the intervening tree cover affected the quality of the video
and the discernibility of objects. In addition, because the camera was motion activated,
there were gaps in the video footage when the camera was not recording.
Despite these limitations, the footage showed that at 6:10 p.m., a vehicle matching
the Uber’s description parked on the north side of defendant’s street facing west, with the
8.
Zambrano home just behind the vehicle. A man in dark clothing exited the front
passenger seat and approached the Zambrano home, out of sight of the camera. At
6:13 p.m., a man walked from the driveway toward the Zambrano home. At 6:14 p.m.,
the man in dark clothing walked toward the street, got into the waiting vehicle, and the
vehicle drove away a few seconds later. Movement then occurred in front of the
Zambrano home. A man wearing a white shirt walked due west, toward Robert’s house,
and disappeared off the screen. Another man, also wearing a white shirt, walked around
the driveway, then stepped into the street and faced west, in the Uber’s direction. In that
position, only his dark pants were visible; his hands and upper body were obscured by a
tree. After about three seconds, the man turned around and walked back to the Zambrano
home.
The Evening of April 18
At 6:14 p.m., Tyrod texted Eddie, “So ur brother shooting at me ok.” Twelve
minutes later, at 6:26 p.m., Tyrod texted Sierra, “Ok see now u got mfs shooting at me ..
U a fucked up person.”
At 6:32 p.m., Tyrod texted Eddie, “Ya better give me back my car,” then he
attempted to call Eddie again. At 6:33 p.m., Eddie responded to Tyrod, texting, “Whos
this what r u talking. abt” Tyrod answered, “Your brother shot at me .. Sierra told me ya
together riding around in my car .. U think im a sucker … I should bring the police to ur
house .. But im a street nigga so u trying play games .. That’s fucked up cause i respected
ya relationship n u tried me like im a punk.” At 6:41 p.m., Eddie responded, “Cheeck
this out homie I aint wit sierra so u need to chill the fuck out… Shes own her own Im at
work dog.” He added, “I dont play games dog. U need to check her ass im just her
friend. So if I see her Ill call u up.”
9.
At 6:55 p.m., defendant attempted to call Eddie. Less than a minute later, Eddie
called Rabbit.8 At 6:57 p.m., Eddie texted Rabbit, “Wevneed to go my brother is
shooting at people.”
At 7:00 p.m., defendant texted Eddie, “A mother fucker a jest shoot at did fucken
nigga came over tripping and pulled a knife in me and shot at hiim u better get here
now.”9 A few minutes later, Eddie responded, “What nigger… Ok im wit rabbit let me
go get em ill be overthere.” Eddie called Rabbit again. Defendant answered Eddie’s text,
“Your Fat ugly lil bitch boy friend,” followed by, “He side he be right back.” Then
defendant added, “Tell mom not to com home my phone don’t fucken call,” and “Tell
Conjo bring it hrery Da Fuck up!!!!!”10
At 7:15 p.m., Eddie texted Tyrod, “Dnt go to my momz house like that homeboy u
should of asked me b4 u went overthere, I dnt want no problems but we could get bizzy if
it cumz down to it. I had nothing to do wit what sierra did.… My brother is not going to
put up wit shit like that.”11
At 7:30 p.m., defendant attempted to call Eddie again. At 7:39 p.m., Eddie texted
defendant, “This fuck is taking his sweet time im trying to get over there.”
Sierra continued texting Eddie. Between 7:33 and 7:38 p.m., she texted him:
“Answer the fuxking phone before there is war,” “I’m not going to bring the car back,”
8 The call and text message records identify Eddie’s cell phone contact of this person as
“Conejo,” the Spanish word for “Rabbit.”
9 Kasten read this text message into the record on two occasions, as follows: “A mother
fucker a jest shoot at did fucken nigga came over tripping and pulled a knife in me and shot at
him. You better get here now.” “‘Hey, mother fucker. He jest shoot at did fucken nigga. Came
over trippin’ and pulled a knife in me and shot at him. You better get here now.’”
10 Kasten read this text message into the record as follows: “‘Tell Conejo bring it, hurry da
fuck up.’”
11 Kasten read this text message into the record as follows: “‘ Don’t go to my mom’s house
like that, homeboy. You should have asked before you went over there. I don’t want no
problems. But we could get busy if it comes down to it. I had nothing to do with what Sierra
did. My brother is not going to put up with shit like that.’”
10.
“And now your brother and my babydad have beef,” and “And I wasn’t even at your
fucking house.” She added, “I swear to god Eddie Andre the fucking phone or I’m
coming bqck over and I’m going to have problems with lyles.”12
At 7:38 p.m., Tyrod texted Eddie, “Can u please tell her to bring my car back and
u will talk to her … for me please.” Eddie said he would and added, “Just stay away
from my momz hiuse thats all i ask.”
Between 7:30 and 8:00 p.m., Eddie received 15 calls from Sierra; he answered
only one. Sierra texted Eddie between 7:39 and 7:42 p.m., stating, “Eddie why are you
ignoring me,” “I’m going to your house screaming right now,” and “I’m hiding the car
and there is gonna be some beef all cause you can’t anwser.”
Around this time, neighbors saw Sierra near the Zambrano home. Neighbors 2
and 3 testified they went for a walk around 7:00 p.m. and saw Sierra in the Kia outside
their house. Neighbor 2 (the wife) said Sierra was inside the Kia and appeared to be
arguing with someone. Neighbor 3 (the husband) saw Sierra in the Kia and heard her
yelling and arguing in English. She appeared to be by herself and yelling at someone
inside the Zambrano home.13
Neighbor 4 testified she heard a disturbance between 7:45 and 8:05 p.m. when she
was home on her lunch break. When she arrived home, she heard screaming, fighting,
and arguing near the Zambrano home, and she saw what looked like a woman “getting
kicked out of the house.” The argument sounded physical; she heard “some hits,” and the
woman was “screaming” and “retaliating.” The woman had dark hair and was wearing
12 Sierra apparently misspelled “Liyo,” which was defendant’s nickname. The two names
were apparently pronounced similarly; we note that the trial court asked the prosecutor during
examination, “Counsel, to be sure, are you saying Lyle, L-y-l-e, or L-i-y-o?” The prosecutor
answered, “L-i-y-o.”
13 Neighbor 2 identified the vehicle as the Kia when she testified it was the same vehicle
she later saw when the police arrived (around 1:30 a.m.). Neighbor 3 identified the woman as
Sierra when he identified her as the same woman he later saw being loaded into an ambulance.
11.
shorts and a top with spaghetti straps, which matched Sierra’s description. Neighbor 4
told police she heard a man yell, “‘Bitch, get out of my house.’” She also told police she
saw a man wearing a beige, long-sleeved shirt. When she left her house to go back to
work, she did not see the woman.
At 7:42 and 7:48 p.m., defendant texted Eddie, “I only. Got 4 shell. Mother
fcker,” and “Thare 4 cars serqel mom’s house u bitches.”14
At 7:56 and 7:57 p.m., Sierra texted Eddie, “OK you can’t anwser so I parked the
car in front of your house and I’m walking away,” and “Okay Eddie I have no choice but
to leave the car here and let my bd just handle it.”15
At 7:58 p.m., Eddie texted defendant, “Nobodys going overthere ok I got a hold of
this nigga he dnt want none ok let me get home ill handel it ok..”16 At 8:10 p.m., Eddie
missed defendant’s call. At 8:10 and 8:11 p.m., Eddie called defendant and they spoke
for four seconds each time.
At some point, Eddie and Rabbit left the casino and headed home. Rabbit testified
Eddie seemed upset and “[p]issed off.” Eddie told Rabbit he had to go home because
defendant was causing problems at home.
At 8:12 p.m., Vincent called Eddie and they spoke for 49 seconds. Then, at
8:15 p.m., Vincent texted Eddie, “Liyo’s all mad be careful he might try something.”
Vincent sent the text message as a warning so Eddie would not be surprised by “anything
he didn’t expect” when he came home. Vincent told police he heard defendant say,
14 Kasten read these text messages into the record as follows: “‘I only got four shell,
mother fucker,’” and “‘They’re four cars circling mom’s house you bitches.’”
15 Presumably, “bd” refers to “baby daddy.”
16 Kasten read this text message into the record as follows: “‘Nobody’s going over there,
okay? I got ahold of this nigga. He don’t want none. Okay? Let me get home. I’ll handle it,
okay?’”
12.
“‘Your fucking—your dad’s bitch came through with some … n-i-g-g-e-r looking for a
car and pulled a knife on me.’”
At 8:16 p.m., Eddie texted Tyrod, “A dog im abt to pull up to my house sierra is
hiding and im going to find out where shes at. Thiz is a big fuckn mess but its going to
get fixed….”17 Tyrod answered, “Ok thank u.”
When Eddie got home from the casino, he and defendant got into an argument.
Vincent left the house because defendant and Eddie were arguing. He did not want to be
present for that, so he went to a friend’s house. Vincent heard about the incident between
defendant and “some black guy earlier in the day,” but he was not there when it occurred.
Between 8:00 and 10:00 p.m., Sierra called Eddie 14 times. He answered a few of
those calls and called her another three times. Sierra drove the Kia to a friend’s house
between 8:00 and 9:00 p.m., and the friend overheard one of the phone calls between
Sierra and Eddie; Sierra wanted to come over but Eddie did not think it was a good idea.
Sierra was at the friend’s house in the early evening and then again later until 1:08 a.m.,
according to the home’s security video. While she was there, she spent a lot of the time
on the phone. Another person at the friend’s house heard Sierra say on the phone, “‘You
think me throwing that brick through a window was bad, mother fucking, you haven’t
seen nothing. I will be there in five minutes.’”
Vincent texted Eddie at 8:59 p.m. and asked, “Is everything ok[?]” He testified, “I
wanted to make sure it was all right. I didn’t want to come home and break up no fight or
nothing.” At 9:38 p.m., Vincent called Eddie.
At 9:54 p.m., Eddie texted Tyrod, “Where r u at? I got her to give it bk too u…”
Tyrod responded with his location.
17 Kasten read this text message into the record as follows: “‘Hey dog, I’m about to pull up
to my house. Sierra is hiding and I’m going to find out where she is at. This is a big fucking
mess but its going to get fixed.’”
13.
Vincent returned home around 10:00 or 11:00 p.m. It was late, the house was
quiet, and he did not see anyone. He thought his grandmother’s television was on in her
room. Her light was off, but she always had her television on when she went to sleep.
Vincent lay down on the couch in the living room where he usually slept.
At 10:04 p.m., Eddie texted Sierra, “Call me when ur down the street ok dnt cum
over here ok…”18
At 10:05 p.m., Eddie texted Tyrod, “Shes going to tell me where the car is going
to be then ill let u now shes scary right now r we good or what?” At 10:06 p.m., Tyrod
answered, “Yeah we good .. My bad for comong to your house like that ..I was mad and
not thinking clear.” At 10:09 p.m., Eddie responded, “Its all good I would of been heated
too, so shes taking it now so be ready to fly….” Tyrod texted, “Ok … Where is she
going leave my keys[?]” Eddie answered, “I ll tell her to put them under the P/S seat….”
Tyrod answered, “Ok.”
At 10:11 p.m., Eddie made a 17-second call to defendant. Then, at 10:17, Sierra
called Eddie and they talked for 46 minutes.
Tyrod continued texting Sierra to bring his Kia back. She texted that she was
going to bring the Kia back, but then she texted that she was mad at Tyrod for going to
the Zambrano home. She thought she and Eddie would no longer be together because
Tyrod went over there. She blamed Tyrod for the problems she was having with Eddie,
telling Tyrod it was his fault the man she loved did not want anything to do with her.
Tyrod repeatedly told her he wanted his Kia back.
At 10:43 p.m., Tyrod texted Eddie, “Wat happened[?]” A minute later, Eddie
answered, “A dog shes going to tex u, right now shes on a power trip or smth.…”19
18 Kasten read this text message into the record as follows: “‘Call me when you’re down
the street, okay? Don’t come over here, okay?’”
19 Kasten read this text message into the record as follows: “‘Hey, dog, she’s going to text
you. Right now she’s on a power trip or something.’”
14.
At 10:56 p.m., Sierra texted Tyrod, “I’m not returning your car right now because
you took away the only person I felt like I had in my life and now he doesn’t want to see
me…. You fucking asshole I always return your car and now you took away something
important to me so im doing the same.” He responded, “Bring me my car now while im
not upset.” At 11:05 p.m., Sierra wrote, “OK but I want to die.” Tyrod texted, “Your
okay eddie is cool.” She replied that Eddie said she “can’t go back over ever again.”
At 11:20 p.m., Eddie texted Sierra, “Sierra whats wrong wit u man[?]” She
responded, “Im a fucken loser, I have no talents, I hate everyone ND everyone hates
me…I don’t make the right decisions and I smoke Meth…. That’s what’s wrong with
me.” Half an hour later, she texted him, “I just need to fuck then we can go our separate
ways.”
Sierra’s Death on April 19
At 11:55 p.m., Eddie answered a call from Sierra and they talked for two minutes
29 seconds. He missed the next three calls from her, then answered one at 12:21 a.m. and
they talked for one minute 25 seconds. He answered the next three calls from her at
12:45 a.m., 1:00 a.m., and 1:21 a.m., and they talked for a total of about 35 minutes.
Then he missed five calls from her. At 1:29 a.m., he answered her call and they talked
for 47 seconds. Then, about two minutes later, at 1:31 a.m., he called her and they talked
for 15 seconds for the last time. There were no text messages between them recorded
during this time.
Around 1:30 a.m., neighbors heard three gunshots. Neighbor 1 was awake in her
living room when she heard “what sounded like someone yelling.” She could not make
out what was being said. She told police that she heard one gunshot followed by a
woman screaming, and then two gunshots in quick succession.
Neighbors 2 and 3 were awoken by the three gunshots.
Neighbor 4 was in her bedroom when she heard the three gunshots, each separated
by one or two seconds. She told police that after she heard the three gunshots, she went
15.
out to the edge of her house to see what was going on down the street. She heard four
voices, one of whom was a man who yelled, “‘Get out of my house.’” She heard a
woman screaming as though someone had been hurt, so she called 911. While she was
on the phone with 911, she heard the woman scream “Liyo” twice. She saw a man
wearing a white, long-sleeved shirt standing on the west side of the Zambrano home, and
she assumed this was the same man she had seen during her lunch break (around
7:45 p.m.). Of the four people she heard, he was the “most animated and yelling the most
profanities and made that statement.” When she heard sirens and the police started to
arrive, the man disappeared from view. She assumed he went back into the house or
down the west side of the house.
Eddie testified he heard the gunshots and ran outside. He saw Sierra injured and
bleeding inside the Kia. He denied seeing anyone else outside or seeing anyone shoot
Sierra. He called 911 and put pressure on Sierra’s wound with his hands until help
arrived. According to cell phone records, Eddie called 911 at 1:33 a.m., about one
minute after his last call with Sierra ended.
Vincent testified he was “halfway asleep” on the couch in the living room when he
heard two or three loud bangs. He went out the front door where he saw “a car up on the
curb and … [his] dad on the phone already, calling for [an] ambulance, [saying]
somebody got shot.” Before he walked outside, Vincent did not notice anyone exit the
Zambrano home through either the front or back door.
Police were dispatched to the scene at 1:35 a.m. Upon their arrival, Sierra was
“gasping for air, heavily bleeding from her face and neck area, [which] was completely
covered in blood.” Officers observed Eddie “attempting to provide medical aid.” They
described him as a “Hispanic male with a shaved head, wearing a white shirt and red
shorts.” Eddie was crying and seemed distraught. He flagged an officer over. Officers
took over rendering assistance until medical personnel arrived. When asked “if he knew
what happened,” Eddie told police, “‘No, no, nah,’” He said he did not know who shot
16.
Sierra, but he told her not to come. He said they had been arguing because she had taken
Tyrod’s Kia, and she told Eddie she was going to come to the house and “cause some
shit.” Eddie said he lived with his mother and two sons; he did not mention defendant.
He said he was inside waiting for Sierra because she told him she was coming, and then
he heard two loud shots. He left the house and saw the Kia traveling slowly at an angle
toward his house. He realized it was Sierra and he tried to render aid. She was not
responsive.
Sierra was transported to the hospital where she died of a shotgun wound to the
head.
Surveillance Footage of Defendant’s Street at 1:30 a.m. on April 19
Video footage from the two cameras, taken around 1:30 a.m. when it was dark,
was shown to the jury. In footage from one camera, a car appearing to match the Kia’s
description drove back and forth several times on defendant’s street. The car drove west
away from the Zambrano home at 1:23 a.m., then drove east toward the Zambrano home
at 1:24 a.m.; the headlights were on. The car then drove west again at 1:31 a.m., and
drove east at 1:32 a.m.; the headlights were off.
In footage from the other camera, a car turned south off of defendant’s street at
1:28 a.m.; the headlights were on. At 1:33 a.m., headlights flashed on and off repeatedly
for about thirty seconds, apparently coming from a stationary car (which was not visible)
facing east on defendant’s street toward the Zambrano home. At 1:38 a.m., a vehicle
with a searchlight drove past the Zambrano home.
Police Investigation
When the police arrived, they found the Kia stopped near the border of Robert’s
house, angled northeast toward the Zambrano home. Three wheels were on Robert’s
front lawn and the rear passenger’s side wheel was on the road. Robert’s mailbox was
pinned underneath the Kia. The engine was running, the gear was in drive, and the
headlights were off. The rear window was broken out, and there was gunshot damage to
17.
the windshield, the driver’s door, and the front driver’s side quarter panel. All of the
windows were down except the rear driver’s side window.
Photographs of the scene depict a number of items in front of the Zambrano home,
including various household goods and several parked cars. The west side of the
Zambrano home, close to where the Kia came to rest, was partially bordered by a fence
“five to six feet tall.” When asked what was significant about this particular area,
Detective Kasten testified, “What I noticed is that fence is probably five to six feet tall
and there’s a tree a couple feet away from it. And if you were standing east of that fence
or of that tree, it would conceal you from people looking east, from the west.” Kasten
noted defendant’s backyard could be accessed through a gate on the west side of the
Zambrano home.
Three expended 12-gauge shotgun shells were found about 80 feet due east of the
Kia, near a line of shrubs on Robert’s front lawn. One live 12-gauge shotgun shell was
located on the ground near the Kia’s driver’s door.
Defendant, who had refused to leave the garage, was finally arrested and taken
into custody around 7:00 a.m. At the time he was taken into custody, his pants were
“down low”—“[h]is boxers were on and then his pants were falling down to his ankles.”
Police executed a search warrant on the garage of the Zambrano home where they
collected a black nylon handgun holster and a gray camouflage magazine pouch from the
ceiling inside the garage. The holster was for a handgun, but no such weapon was found.
Three live shotgun shells and one spent shell were also recovered from a dresser in the
garage.
Police found a J.C. Higgins pump-action shotgun in a shed located in the backyard
of the Zambrano home.20 The shotgun was approximately 27 inches long in total, with a
shortened, sawed-off barrel that measured 16½ inches. A string had been threaded
20 Kasten testified that Vincent told him the items in the shed belonged to defendant.
18.
through a hole in the butt of the weapon and around the barrel, then tied into a loop.
Based on our review of photographs of the shotgun, the string measured approximately
50 inches in total length and created a strap about half that length.
Ballistics determined the three expended shotgun shells recovered near the Kia
had been fired from that shotgun, and the live shell had been cycled through and ejected
from the shotgun, as well. Two fingerprints were found on the shotgun near the trigger
and pump-action lever, both matching defendant’s left middle finger. Gunshot residue
(GSR) was found on defendant’s left hand. GSR was also found on Eddie’s right hand.21
Defendant’s DNA was found on the shotgun, but Eddie’s was not.
In June, Kasten interviewed Eddie again. There were certain topics Eddie was
reluctant to talk about. For example, he was reluctant to answer when Kasten asked if he
was outside when Sierra was shot and if defendant shot Sierra.
Defense Evidence
Another neighbor, Neighbor 5, testified she heard two people argue for five to
10 minutes in the early morning hours of April 19. They were “telling each other off”
and one was telling the other to be quiet. She heard the phrase, “‘Shut the fuck up.’” She
could not tell if the voices were both male, or male and female. She did not remember
telling police she heard two male voices. She heard three gunshots and then the argument
ended. She did not call 911 because she was scared.22
Robert testified he had been defendant’s next-door neighbor for 20 years. On
April 18, around 6:00 p.m., he was talking with defendant outside the Zambrano home
when a black man he had never seen suddenly appeared, wielding a knife and threatening
21 At trial, the criminalist who ran the GSR tests testified that it is possible for a person to
get GSR on their hands by touching the victim of a gunshot wound. Eddie used his hands to put
pressure on Sierra’s wound.
22 At trial, Neighbor 5 was assisted by a Spanish interpreter and said she understood “[v]ery
little” English.
19.
defendant. The black man said, “‘You know what, I better get my car back or I’ll be
back tonight.’ He said I won’t be coming by myself, in other words.” The man did not
swing at or stab Robert or defendant. Then Robert went home. He denied hearing
gunshots or seeing anyone shoot at the black man. He testified the black man was the
only person with a weapon.
When questioned by defense counsel, Robert admitted he “probably” told police
he did not want to get involved and “might have” said this because he feared
repercussions if he went to court. But he denied telling police, “‘I told you all I know,
that is all I can tell you. I don’t want my mom to get hurt.’”
Rebuttal Evidence
Kasten was called by the prosecution as a rebuttal witness. When Kasten spoke
with Robert about the shooting, he “was not very cooperative” at first. Kasten testified,
“I asked him about what had happened on the previous day around 6:00 p.m. He told me
he did not want to get involved. He told me he was concerned about his mom who lives
there and the fact that he didn’t want the house to get shot up. And he made the
quotation, ‘I know how they are.’” Kasten understood that Robert was referring to
defendant and Eddie. Kasten asked Robert if he really believed the black man was going
to come back with people, to which Robert responded, “‘I don’t think so.’” Robert then
became uncooperative again and said, “‘You don’t have to live here, I do. I don’t
know.’”
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends insufficient evidence proved he assaulted Tyrod with a
firearm at 6:00 p.m. because nobody saw him with a gun, he did not have the opportunity
to get a gun, there was no physical evidence that a gun was fired, and there was no
evidence of any kind that defendant (or anyone) “actually” fired a weapon “‘at’” Tyrod.
The People respond that “[t]he testimony of multiple witnesses who heard a gunshot, as
20.
well as evidence of contemporaneous texts … stating that [defendant] shot at [Tyrod]
constituted ample evidence to support the jury’s verdict.” We agree with the People.
A. Law
Defendant was convicted of assault with a firearm under section 245(a)(2).23 “An
assault is an unlawful attempt, coupled with a present ability, to commit a violent injury
on the person of another.” (§ 240.) The gravamen of a criminal charge under
section 245(a)(2) is, simply put, that the defendant consciously acted in a manner likely
to harm another person and used a firearm to do so. (People v. Lee (1994) 28
Cal.App.4th 1724, 1734.)
“When a criminal defendant challenges the sufficiency of the evidence in support
of a conviction, the reviewing court’s task is to determine whether, in light of the whole
record viewed in the light most favorable to the prosecution, a rational trier of fact could
have found the elements of the crime beyond a reasonable doubt.” (People v. Felix
(2009) 172 Cal.App.4th 1618, 1624.) We presume every fact that could reasonably be
deduced from the evidence and make all reasonable inferences that support the judgment.
(People v Johnson (1980) 26 Cal.3d 557, 576–577.) We evaluate “‘the entire picture of
the defendant put before the jury’” to determine whether each element was supported by
substantial evidence. (Id. at p. 577.) Substantial evidence is that which is “‘of
ponderable legal significance,’” meaning it is “‘reasonable in nature, credible, and of
solid value.’” (Id. at p. 576.) Applying these principles, we uphold the judgment if any
rational trier of fact could find the essential elements of the crime beyond a reasonable
doubt. (Ibid.; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.)
23 Section 245(a)(2) provides: “Any person who commits an assault upon the person of
another with a firearm shall be punished by imprisonment in the state prison for two, three, or
four years, or in a county jail for not less than six months and not exceeding one year, or by both
a fine not exceeding ten thousand dollars ($10,000) and imprisonment.”
21.
The standard of review is the same regardless of whether the conviction was
mainly supported by circumstantial evidence. (People v. Story (2009) 45 Cal.4th 1282,
1296.) While the jury must acquit if circumstantial evidence can be interpreted two
different ways, “‘“‘one of which suggests guilt and the other innocence,’”’” it is the jury
that must be convinced of defendant’s guilt, not the appellate court. (Ibid.) When the
jury’s findings are reasonably supported, reversal is not warranted. (Ibid.)
B. Analysis
Mindful of these standards, we examine the record to identify the evidence
supporting the elements of the crime, which are (1) the defendant performed an act with a
firearm that, by its nature, would directly and probably result in the application of force
to a person; (2) the defendant performed that act willfully; (3) when the defendant acted,
he was aware of facts that would lead a reasonable person to conclude that the act, by its
nature, would directly and probably result in the application of force to a person; and
(4) when the defendant acted, he had the present ability to apply force with a firearm to a
person. (See CALCRIM No. 875.) Defendant challenges only the first element on
appeal, arguing he did not shoot at Tyrod. Thus, we focus our discussion on the first
element and discuss the other three only briefly.
1. Element One
To satisfy the first element, that defendant performed an act with a firearm, the
prosecution alleged defendant shot a firearm at Tyrod at 6:00 p.m. Proof of this element
depended largely on circumstantial evidence because no one was injured, no one testified
to seeing the shooting, and there was no physical evidence such as spent shells or bullet
holes. The strongest piece of evidence that defendant shot at Tyrod was defendant’s text
message to Eddie stating, “A mother fucker a jest shoot at did fucken nigga came over
tripping and pulled a knife in me and shot at hiim u better get here now.” The
prosecution relied on this text message as defendant’s admission that he shot at Tyrod.
22.
On appeal, defendant argues this text message “was gibberish and too vague and
ambiguous to constitute evidence that he [shot at Tyrod].” Defendant says the text
message did not specify who committed the shooting and “it cannot be inferred that [he]
meant to convey he or anyone had committed a shooting .…” He claims that drawing
any inference from this text message “would require speculation and guessing regarding
what he meant to communicate.” The People, on the other hand, continue to argue that
the text message was defendant’s admission that he shot at Tyrod.
We conclude that, while the text message certainly was rife with “spelling errors
and syntactical deficiencies,” as defendant puts it, the jury was entitled to, and impliedly
did, find the text message to be defendant’s admission that a black man “came over
tripping and pulled a knife” and that defendant “shot at hiim” in response, as the People
argue.24 As we will explain, substantial evidence supported this reasonable inference.
First, although defendant did not clearly identify himself as the shooter in the text
message, he did not identify anyone else as the shooter, and the evidence supported the
inference that he was in fact referring to himself. We believe the jury could reasonably
have concluded that defendant’s text message—“A mother fucker a jest shoot at did
fucken nigga came over tripping and pulled a knife in me and shot at hiim u better get
here now”—meant “Hey, mother fucker, I just shot at this fucking black man who came
over tripping and pulled a knife on me and I shot at him. You better get here now.”
Kasten interpreted “A mother fucker” as “Hey, mother fucker” when reading this text
message at trial. He similarly interpreted “A dog” as “Hey, dog” when reading text
24 “An admission as applied to criminal law is something less than a confession, and is but
an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a
conviction, and which tends only toward the proof of the ultimate fact of guilt.” (People v.
Ferdinand (1924) 194 Cal. 555, 568.) A confession, on the other hand, “is a statement which
admits the crime and leaves no room for any inference other than that of defendant’s guilt.”
(People v. Polite (1965) 236 Cal.App.2d 85, 89.)
23.
messages from Eddie to Tyrod. 25 This supported the inference that defendant used “A
mother fucker” as something of a greeting directed at Eddie, meaning “Hey, mother
fucker,” rather than as a description of the shooter. Further, the jury could reasonably
have concluded that “did” (as used in “did fucken nigga”) was a misspelling of “dis,”
meaning “this,” and that “and shot at hiim” was a reference to something defendant
himself did, not someone else.
This interpretation of the text message, that defendant referred to himself as the
shooter, was also supported by evidence of the events. Tyrod, a black man, went to the
Zambrano home, pulled out a knife, and “beefed” with defendant. Defendant’s
demeanor—his “patrolling” and “almost paranoid” behavior that morning and his
“territorial” and “jittery” behavior at 6:00 p.m.—supported the inference that he may
have been on drugs, paranoid, and generally prepared for trouble. Tyrod was scared
because he thought defendant and Robert were gang members, so he pulled out a knife.
As he left in the Uber, he heard a gunshot. When he turned around, he saw defendant
holding “something” that looked like a shotgun. While Tyrod was not certain he saw a
shotgun, his testimony was still probative and the jury was entitled to consider it in light
of the other evidence. (See People v. Hines (1997) 15 Cal.4th 997, 1058 [“Shotguns are
sufficiently within common experience” for lay witnesses to testify about them at trial].)
Tyrod concluded defendant shot at him. He sent text messages to that effect, telling
Sierra, “[S]ee now you got mfs shooting at me,” and telling Eddie, “Your brother shot at
me.”
The Uber driver testified similarly, stating that he was driving away from the
Zambrano home when he heard the gunshot. He looked back and saw a firearm and a
man reaching toward the waistband of his pants. Although the driver never specifically
25 “A dog im abt to pull up to my house sierra is hiding and im going to find out where shes
at. Thiz is a big fuckn mess but its going to get fixed,” and “A dog shes going to tex u, right now
shes on a power trip or smth.…”
24.
stated the man was holding the firearm, that was a reasonable interpretation of his
testimony and the jury was entitled to draw that conclusion. He described the man as in
his 30’s, wearing glasses, with “light medium” skin, and “[p]robably” wearing a white
shirt and sweatpants. This was consistent with defendant’s age and skin color as shown
in a photographic exhibit, and with testimony at trial identifying defendant as wearing
glasses. The video footage confirmed that a man wearing a white shirt was standing in
the street in front of the Zambrano home around 6:00 p.m.26
Robert testified he was talking with defendant outside the Zambrano home when a
black man suddenly appeared, wielding a knife and threatening defendant. According to
Robert, the black man said, “‘You know what, I better get my car back or I’ll be back
tonight.’ He said I won’t be coming by myself, in other words.” Robert denied seeing or
hearing a gun fired. However, the jury was entitled to disregard or discount his testimony
on this matter in light of rebuttal evidence offered by Kasten, who interviewed Robert
after the incident. Kasten testified Robert “was not very cooperative” and said “he did
not want to get involved” because “he was concerned about his mom who lives there and
the fact that he didn’t want the house to get shot up. And he made the quotation, ‘I know
how they are.’” From this, the jury could reasonably have inferred that Robert lied about
seeing or hearing defendant fire a gun because he was afraid defendant would retaliate
against him and his mother.
Furthermore, there was no evidence that anyone other than defendant and Robert
were outside at the time of the shooting. And there was no suggestion, by the prosecution
or the defense, that Robert was responsible for the shooting. Robert acknowledged he
26 Defendant notes the Uber driver “was unable to identify [him] as the person he
supposedly saw with a gun.” However, while the driver failed to positively identify defendant in
court or when shown a photographic lineup by police, he nevertheless provided a physical
description that was consistent with defendant’s characteristics. The weight and significance of
his testimony, if any, was a matter for the jury to resolve. (People v. Casares (2016) 62 Cal.4th
808, 823–824, disapproved on another ground in People v. Dalton (2019) 7 Cal.5th 166, 214.)
25.
was present when Tyrod and defendant were arguing, but he never mentioned
participating in the argument or engaging with Tyrod in any way. Tyrod’s testimony
similarly never mentioned any interaction with Robert. The logical inference was that
defendant was the shooter described in the text message. Though the jury could have
found otherwise, the evidence did not require them to do so and our role on appeal is
neither to reweigh the evidence nor to reevaluate witness credibility. (People v. Albillar
(2010) 51 Cal.4th 47, 60.)
The physical evidence also supported the interpretation of the text message that
defendant referred to himself as the shooter. Police retrieved a pump-action, sawed-off
shotgun from a shed in the backyard of the Zambrano home that contained defendant’s
property. The shotgun had defendant’s DNA and fingerprints on it. Ballistics proved the
shotgun was used to shoot and kill Sierra about seven hours after defendant’s argument
with Tyrod. Inside defendant’s room in the garage, police recovered three live shotgun
shells and one spent shotgun shell. They also retrieved a handgun holster and magazine
pouch from the ceiling inside the garage, though no handgun was found. This evidence
permitted the reasonable conclusion that defendant had access to at least one operable
weapon—the shotgun—at the time the assault occurred, which corroborated Tyrod’s
testimony that he saw defendant holding “something” that looked like a shotgun. The
jury could also have inferred that defendant additionally possessed an unrecovered
handgun fitting the holster found in his room.
Defendant argues the Uber driver must have seen a handgun because a shotgun
would have been impossible to hide in the waistband of the shooter’s pants and,
therefore, the Uber driver’s testimony cannot be reconciled with Tyrod’s belief that he
saw a shotgun. The evidence did not require such a finding. The shotgun that police
recovered had a shortened barrel and the gun measured 27 inches in total. A piece of
string had been tied into an improvised strap. The jury could reasonably have inferred
that the barrel had been sawed off to make the weapon easier to conceal, and that the
26.
strap was intended to facilitate the same purpose. A weapon of this size could potentially
have been tucked into the waistband of the shooter’s pants—especially baggy pants—
while strapped over a shoulder, and hidden by pulling a shirt over it. The Uber driver
stated the shooter was wearing sweatpants, and police testified that when defendant was
arrested, his pants were so loose that they “were falling down to his ankles,” which
supported the inference that defendant’s pants were baggy enough to conceal either a
handgun or a sawed-off shotgun.
And even if defendant did not have the weapon on his person during the argument
with Tyrod, there were a number of places he could have hidden a weapon for quick
access outside the Zambrano home, such as several parked cars, the fence line, shrubbery,
and piles of household goods. Indeed, the video footage showed two men in white shirts
moving around in front of the Zambrano home as Tyrod was leaving in the Uber. One of
the men walked directly toward Robert’s house, and it would have been reasonable for
the jury to conclude this was Robert walking home. The other man walked around the
driveway, then stepped into the street to face the Uber’s direction for a few seconds
before going back to the Zambrano home. The jury could reasonably have concluded this
person was defendant and he had the opportunity to retrieve a hidden weapon and shoot
at the Uber as it was driving away. Although defendant’s upper body cannot be seen on
the video due to tree cover, this inference would have been reasonable based on the
testimony of Tyrod and the Uber driver.
Thus, the weapon descriptions offered by Tyrod and the Uber driver were not so
inherently contradictory as to require them to be rejected in light of the shotgun’s size
and strap, the description of defendant’s pants, and the video footage showing that
defendant had the opportunity to pick up a hidden weapon and step into the street to shoot
it. (People v. Huston (1943) 21 Cal.2d 690, 693 [collecting cases], overruled on other
grounds in People v. Burton (1961) 55 Cal.2d 328, 352.)
27.
Defendant argues that nothing proved a gun was actually discharged because
“[t]he sound itself did not definitively establish that a gun had been fired, especially
given the absence of testimony that any of the people who heard it had the training or
experience to distinguish a gunshot from another similar sound, such as a car backfire.”
But defendant never objected when Tyrod, the Uber driver, Neighbor 2, and Neighbor 3
testified to hearing the gunshot at 6:00 p.m. “Because defendant failed to object to the
testimony of these witnesses at trial, he is barred from challenging it on appeal.” (People
v. Hines, supra, 15 Cal.4th at p. 1058.) Furthermore, Neighbors 2 and 3 accurately
identified the gunshots at 1:30 a.m. when Sierra was shot and killed, and there was no
reason to believe they lacked the expertise to identify the gunshot at 6:00 p.m.
In light of all the evidence—including Tyrod’s belief that he saw defendant
holding something that looked like a shotgun, the Uber driver’s testimony that he saw a
firearm, defendant’s possession of an operational shotgun and ammunition, the video
footage showing defendant’s movements before the shooting, and Kasten’s interpretation
of the text message language—it was reasonable for the jury to conclude the text message
was defendant’s admission that he shot at Tyrod. This admission, together with the other
evidence, constituted sufficient evidence to satisfy the first element.
2. Element Two
As for the second element, that defendant performed the act willfully, no evidence
suggested defendant shot at Tyrod accidentally, by mistake, or under circumstances
indicating anything other than purposeful conduct. “The word ‘willfully,’ when applied
to the intent with which an act is done or omitted, implies simply a purpose or
willingness to commit the act .…” (§ 7, subd. (1).) “It does not require any intent to
violate law, or to injure another, or to acquire any advantage.” (Ibid.) The mens rea of
assault is thus supported by proof a gun was deliberately fired in the direction of another,
rather than by accident or mistake. (People v. Herrera (1970) 6 Cal.App.3d 846, 851.)
Here, defendant’s text message that he “shot at hiim” supported the inference that he shot
28.
in the direction of Tyrod, and the circumstances described above suggested he felt
threatened by Tyrod and purposely fired in retaliation.
3. Element Three
The third element, that when defendant acted, he was aware of facts that would
lead a reasonable person to realize the act, by its nature, would directly and probably
result in application of force to a person, was also supported. This element is judged
under an objective standard, so the question was whether a reasonable person, knowing
what defendant knew, would have realized the act carried an attendant risk of harm.
(People v. Williams (2001) 26 Cal.4th 779, 789–790.) Deliberately firing a loaded
weapon at someone certainly satisfies this objective test, as does aiming a warning shot
in the “near vicinity” of where the shooter knows another person to be. (Id. at p. 790.)
Thus, when defendant deliberately fired the weapon at Tyrod, he was aware of facts that
would lead a reasonable person to understand his act carried with it an attendant risk of
harm.
4. Element Four
The fourth element, that when defendant acted, he had the present ability to apply
force to a person, asks whether the defendant “‘has attained the means and location to
strike immediately.’” (People v. Chance (2008) 44 Cal.4th 1164, 1168.) The present
ability to apply force exists when the defendant fires “rounds from a fully operational,
loaded gun in the direction of the victim who was ‘easily within striking distance.’”
(People v. Licas (2007) 41 Cal.4th 362, 369.) The facts here showed that when defendant
fired, he possessed an operational shotgun and ammunition, it was still daylight, and the
Uber (with Tyrod inside) was only 100 to 200 feet away. This evidence satisfied the
fourth element.
5. Conclusion
Accepting all logical inferences the jury might have drawn from the evidence, we
cannot say “‘that on no hypothesis whatever is there sufficient substantial evidence to
29.
support the verdict .…’” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Defendant’s conviction for assault with a firearm must therefore be affirmed.
II. Instructional Error
Defendant’s second contention on appeal is that the trial court erred in failing to
instruct the jury on the heat of passion theory of manslaughter. Although the jury was
instructed on imperfect self-defense, the court declined to instruct on heat of passion
manslaughter. Defendant argues this constituted reversible error because the
prosecution’s case-in-chief included the facts necessary to show that he shot Sierra while
in a state of hostile and violent agitation. The People respond the evidence did not
support such an instruction. We agree with the People.
A. Background
Following the conclusion of evidence, the trial court held a jury instruction
conference. Defendant asked for an instruction on heat of passion as set forth in
CALCRIM No. 570. The trial court declined, explaining:
“The Court, upon further reflection of the testimony that was actually
presented during the course of the trial, concluded that it would not be
appropriate to give [CALCRIM No.] 570 because there was insufficient
evidence that [Sierra] did anything that provoked the defendant in any way
immediately before the shooting, nor was there any evidence that the
defendant was provoked by his encounter with [Tyrod] and acted upon any
provocation several hours after his interaction with [Tyrod], acting strictly
on emotion, which is one of the key elements of heat of passion, voluntary
manslaughter. So it was based on the evidence that was presented during
the course of the trial, after the Court had further opportunity to review the
evidence in the form of the testimony, that the Court concluded that there
was no basis for giving CALCRIM [No.] 570]. [¶] The Court is giving
CALCRIM [No.] 571 on imperfect self-defense, voluntary manslaughter.”
30.
The jury was thereafter instructed on transferred intent (CALCRIM No. 562), 27
imperfect self-defense (CALCRIM No. 571),28 and complete self-defense (CALCRIM
No. 505).
27 As to CALCRIM No. 562, the jury was instructed:
“If … the defendant intended to kill one person but by mistake or accident
killed someone else instead, then the crime, if any, is the same as if the intended
person had been killed.”
28 As to CALCRIM No. 571, the jury was instructed:
“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. [¶] If you conclude the defendant acted in complete self-defense, his
action was lawful and you must find him not guilty of any crime. The difference
between complete self-defense and imperfect self-defense depends on whether the
defendant’s belief in the need to use deadly force was reasonable.
“The defendant acted in imperfect self-defense if: [¶] One, the defendant
actually believed that he was in imminent danger of being killed or suffering great
bodily injury; [¶] And two, the defendant actually believed that the immediate
use of deadly force was necessary to defend against that danger; [¶] But three, at
least one of those beliefs was unreasonable.
“Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be. [¶] In evaluating the defendant’s beliefs, consider all
the circumstances as they were known and appeared to the defendant. [¶]
Imperfect self-defense does not apply when the defendant, through his own
wrongful conduct, has created circumstances that justify his adversary’s use of
force.
“A danger is imminent if, when the fatal wound occurred, the danger
actually existed or the defendant believed it existed. The danger must seem
immediate and presen[t] so that it must be instantly dealt with. It may not be
merely prospective or in the near future.
“If you find that Tyrod … threatened or harmed the defendant in the past,
you may consider that information in evaluating the defendant’s beliefs. [¶] If
you find that the defendant knew that Tyrod … had threatened or harmed others
in the past, you may consider that information in evaluating the defendant’s
beliefs.
“Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
31.
B. Law
Voluntary manslaughter is an unlawful killing without malice, and a lesser
included offense of murder. (People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman).) Heat of passion and imperfect self-defense are two theories of voluntary
manslaughter. (People v. Lasko (2000) 23 Cal.4th 101, 108 [heat of passion]; People v.
Rangel (2016) 62 Cal.4th 1192, 1226 [imperfect self-defense].)
The factor that distinguishes heat of passion manslaughter from murder is
provocation. (People v. Avila (2009) 46 Cal.4th 680, 705 (Avila).) “Malice is
presumptively absent when the defendant acts upon a sudden quarrel or heat of passion
on sufficient provocation .…” (People v. Manriquez (2005) 37 Cal.4th 547, 583.) The
provocation must have been “‘caused by the victim’” or be conduct the defendant
“‘reasonably believed … to have been engaged in by the victim.’” (Ibid.) “‘The
provocative conduct by the victim may be physical or verbal, but the conduct must be
sufficiently provocative that it would cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection.’” (Id. at pp. 583–584.) Heat of
passion arises when, at the time of the killing, the defendant’s reason is impaired by
passion to such an extent as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances (Avila, supra, at p. 705) or in
the mind of someone with ordinary self-control (People v. Hurtado (1883) 63 Cal. 288,
292).
“To be adequate, the provocation must be one that would cause an emotion so
intense that an ordinary person would simply react, without reflection.… [T]he anger or
other passion must be so strong that the defendant’s reaction bypassed his thought
process to such an extent that judgment could not and did not intervene. Framed another
“The People have the burden of proving beyond a reasonable doubt that
the defendant was not acting in imperfect self-defense. If the People have not met
this burden, you must find the defendant not guilty of murder.”
32.
way, provocation is not evaluated by whether the average person would act in a certain
way: to kill. Instead, the question is whether the average person would react in a certain
way: with his reason and judgment obscured.” (People v. Beltran (2013) 56 Cal.4th 935,
949 (Beltran).) “[P]rovocation is sufficient [when] … it eclipses reflection. A person in
this state simply reacts from emotion due to the provocation, without deliberation or
judgment. If an ordinary person of average disposition, under the same circumstances,
would also react in this manner, the provocation is adequate .…” (Id. at p. 950.)
“‘[N]o defendant may set up his own standard of conduct and justify or excuse
himself because in fact his passions were aroused, unless further the jury believe that the
facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable
man. Thus, no man of extremely violent passion could so justify or excuse himself if the
exciting cause be not adequate .… Still further, while the conduct of the defendant is to
be measured by that of the ordinarily reasonable man placed in identical circumstances,
the jury is properly to be told that the exciting cause must be such as would naturally tend
to arouse the passion of the ordinarily reasonable man. But as to the nature of the passion
itself, our law leaves that to the jury, under these proper admonitions from the court.’
[Citation.] As the court long ago explained in People v. Jones (1911) 160 Cal. 358, 368,
‘it is not a matter of law but a matter of fact for the jury in each case to determine under
the circumstances of the case whether the assault or whether the blow, or whether the
indignity or whether the affront, or whatever the act may be, was such as is naturally
calculated to arouse the passions and so lessen the degree of the offense by relieving it
from the element of malice.’” (Beltran, supra, 56 Cal.4th at pp. 950–951.) If, instead,
the standard were purely subjective, “‘then, by habitual and long continued indulgence of
evil passions, a bad man might acquire a claim to mitigation which would not be
available to better men, and on account of that very wickedness of heart which, in itself,
constitutes an aggravation both in morals and in law.’” (Id. at p. 951.)
33.
Because heat of passion voluntary manslaughter is a lesser included offense of
murder, a trial court may have a duty to instruct on it. “‘A trial court has a sua sponte
obligation to instruct the jury on any uncharged offense that is lesser than, and included
in, a greater charged offense, but only if there is substantial evidence supporting a jury
determination that the defendant was in fact guilty only of the lesser offense.’” (People
v. Rangel, supra, 62 Cal.4th at pp. 1224–1225.) In noncapital cases such as this one, the
failure to instruct on a lesser included offense is reviewed for harmless error under the
standard set forth in People v. Watson (1956) 46 Cal.2d 818, which asks whether it was
reasonably probable the defendant would have obtained a better result had the
instructional error not occurred. (Id. at p. 836; see Breverman, supra, 19 Cal.4th at
pp. 148–149.)
C. Analysis
To prevail on appeal, defendant must show both that an instruction on heat of
passion was warranted by the evidence (i.e., that the trial court erred in failing to instruct)
and also that he would likely have obtained a better result at trial had the instruction been
given (i.e., that defendant was prejudiced by the court’s error).
To warrant instruction on heat of passion, there must be substantial evidence that
at the time of the killing (1) the defendant’s reason was actually obscured as a result of a
strong passion, including anger, rage, or any violent, intense, highly wrought or
enthusiastic emotion, but not revenge; (2) the passion was provoked by the victim’s
conduct, which may have been physical or verbal, comprising a single incident or
numerous incidents over a period of time; and (3) the provocation was sufficient to cause
an ordinary person of average disposition to act rashly from passion and without due
deliberation and reflection. (People v. Wright (2015) 242 Cal.App.4th 1461, 1481
(Wright).) The first two elements analyze the defendant’s subjective state of mind; the
third applies an objective standard. (Ibid.) We review the evidentiary support for an
34.
instruction in the light most favorable to the defendant and resolve doubts as to the
sufficiency of the evidence in his favor. (Id. at p. 1483.)
Here, we conclude defendant’s claim fails on the third element.
1. Element One
As for the first element, that defendant’s reason was actually obscured due to
strong passion, defendant contends the jury could have found that he believed he was
shooting Tyrod at 1:30 a.m. because he thought Tyrod had returned to the Zambrano
home after threatening him. He argues Tyrod’s behavior at 6:00 p.m. “clear[ly]”
provoked him and caused him to feel “anger or some other hostile and violent emotion,”
and his belief that Tyrod had returned was sufficient to permit the jury to conclude the
shooting was a rash act provoked by Tyrod.
The People respond that no “particularly strong evidence” proved defendant “was
so affected to the degree that his reflection was eclipsed and he was simply reacting from
emotion.” Rather, the People argue, the evidence “describes an angry person,” but not
someone “whose ability to reflect [was] eclipsed, let alone one who remained so for
several hours more.”
Viewing the evidence in the light most favorable to defendant, as we must, we
agree there was evidence he was subjectively agitated, and perhaps even passionate, until
the time of Sierra’s death.
The evidence showed that at about 7:00 a.m., Tyrod picked up Sierra from the
Zambrano home in his Kia. He was observed by defendant, who was in the front yard
“patrolling.” By 3:00 p.m., Sierra had taken Tyrod’s Kia and gone back to the Zambrano
home’s neighborhood. She parked outside the nearby apartment complex, then circled
the area three times, as witnessed by Neighbor 1. At 4:30 p.m., she was parked outside
the Zambrano home, as she told Eddie in a text message. At 6:00 p.m., Tyrod arrived at
the Zambrano home looking for his Kia. He approached defendant, who was outside
with Robert. Tyrod argued with defendant about Sierra and the Kia. Tyrod pulled out a
35.
knife and threatened to return to the Zambrano home with more people if he did not get
the Kia back. As Tyrod left, someone fired a weapon. At 7:00 p.m., defendant texted
Eddie about the confrontation with Tyrod, saying Tyrod “came over tripping and pulled a
knife in me and shot at hiim u better get here now.” He asked Eddie to “[t]ell mom not to
com home” because Tyrod “side he be right back.” Around 7:45 p.m., defendant texted
Eddie, “I only. Got 4 shell,” and “Thare 4 cars serqel mom’s house u bitches.” He
demanded Eddie hurry up and get home. This evidence supported the reasonable
inference that defendant felt agitated and possibly threatened by Tyrod’s actual and
ostensible conduct.
This inference was also supported by text messages that demonstrated Eddie was
aware defendant was agitated. When Tyrod told Eddie defendant shot at him, Eddie
texted his friend Rabbit, “Wevneed to go my brother is shooting at people.” Eddie, who
was not home, tried to prevent further conflict by warning Tyrod, “Dnt go to my momz
house like that, homeboy u should of asked me b4 you went overthere,” explaining, “My
brother is not going to put up wit shit like that.” Eddie also tried to reassure defendant
that Tyrod was not coming back, explaining he had talked to Tyrod and would handle
things, texting, “Nobodys going overthere ok I got a hold of this nigga he dnt want none
ok let me get home ill handel it ok..” Eddie warned Tyrod again to “[j]ust stay away
from my momz hiuse thats all i ask.”
Defendant’s agitated condition was apparent when, around that time, Sierra
returned to the Zambrano home in the Kia. She engaged in a verbal argument from the
Kia, presumably with defendant because Eddie was not home yet. At some point, she got
out of the Kia and engaged in a physical fight with a man—again, presumably defendant.
The man yelled, “‘Bitch, get out of my house,’” and it appeared that he was kicking
Sierra out of the house. She was “screaming” and “retaliating.”
Vincent also recognized that defendant was agitated that evening. At 8:15 p.m.,
before Eddie got home, Vincent texted a warning to Eddie that defendant was “all mad”
36.
and “might try something.” Vincent testified that when Eddie returned home, he and
defendant got into an argument, so Vincent left. Based on the timing of Vincent’s text
messages, defendant’s argument with Eddie began before 9:00 p.m. and Vincent said the
house was quiet when he came back around 10:00 or 11:00 p.m.
Even if all seemed quiet to Vincent, other activity was occurring. Sierra was
repeatedly threatening to come back, and Eddie was attempting to convince her not to
come. Before the shooting, two people were arguing outside, one telling the other to be
quiet, and it was a reasonable inference that these two people were defendant and Eddie.
Sierra returned in the Kia and drove up and down defendant’s street five times—three
times with her headlights on and then two times with them off. At 1:33 a.m., a car,
probably the Kia, stopped and flashed its lights in the general direction of the Zambrano
home for about 30 seconds. Defendant shot Sierra and, at 1:33 a.m., Eddie called 911.
Viewing the evidence in the light most favorable to defendant, we conclude a
reasonable jury could infer that defendant believed Tyrod was returning at 1:30 a.m.,
after the 6:00 p.m. heated argument during which he brandished a knife and threatened to
return, and that his apparent arrival late at night, first driving by the Zambrano home five
times then approaching with the lights off, alarmed and provoked defendant to the point
that he reacted under the influence of a strong passion without deliberation and reflection.
Thus, substantial evidence supported this element.
2. Element Two
The second element, that defendant’s passion was provoked by the victim’s
conduct, requires provocative conduct by the victim or provocative conduct reasonably
attributed to the victim. Defendant acknowledges that the victim here, Sierra, was not a
source of sufficient provocation. His theory is instead that the evidence reasonably
suggested Tyrod was the source of provocation and defendant shot Sierra in the heat of
passion believing he was shooting at Tyrod, based on Tyrod’s “prior threats and the time
and manner of the [Kia]’s approach”—i.e., with headlights off in the middle of the night.
37.
Based on our discussion of the facts under element one, we conclude that a
reasonable jury could conclude it appeared to defendant that Tyrod drove to the
Zambrano home in the Kia at 1:30 a.m., drove by repeatedly, then approached with the
lights off. Substantial evidence supported this element.
3. Element Three
Where defendant’s argument breaks down is the third element, which requires
conduct so inflammatory that an ordinarily reasonable person—not just defendant—
would be goaded into an intense state of hot-blooded emotional turbulence and “simply
react, without reflection.” (Beltran, supra, 56 Cal.4th at p. 949.) Crediting the evidence
in defendant’s favor, we conclude the provocative conduct at issue here could not support
the ordinarily reasonable person standard of this element.
Generally, courts have held that verbal arguments, even those involving assault,
are insufficient to incite heat of passion in an ordinary person with an average
disposition. Here, defendant’s 6:00 p.m. interaction with Tyrod amounted to a verbal
argument in which the victim swore, displayed a weapon, and threatened to return if he
did not get his property back. Under similar facts, the Supreme Court held in People v.
Gutierrez (2009) 45 Cal.4th 789 that a verbal argument—even when accompanied by
swearing, scratching, kicking, and taunting by the victim—did not warrant an instruction
on heat of passion:
“Here, no evidence was introduced that [the] defendant was so inflamed
that he killed the victim in a heat of passion. [The d]efendant testified that
he and [his ex-girlfriend] engaged in a verbal argument prior to his taking
his son and leaving [his ex-girlfriend’s] house. [The d]efendant testified
that he told [her], ‘[g]et off me, you f…ng bitch,’ and that she ‘cuss[ed]
back at’ him. We have held that calling the defendant ‘a “mother f…er”
and … repeatedly asserting that if [the] defendant had a weapon, he should
take it out and use it … plainly were insufficient to cause an average person
to become so inflamed as to lose reason and judgment.’ [Citation.]
Similarly, the verbal exchange described by [the] defendant in the present
case did not constitute sufficient provocation for voluntary manslaughter.
38.
“[The d]efendant also testified that [his ex-girlfriend] scratched his
chest, he kicked her, she kicked him in the leg and grabbed his shirt, and he
pulled away. Simple assault, such as the tussle [the] defendant described,
also does not rise to the level of provocation necessary to support a
voluntary manslaughter instruction. [Citation.] Indeed, rather than causing
[the] defendant to become enraged, [the] defendant testified that he simply
walked away. Accordingly, we conclude that the trial court did not err by
refusing to give a voluntary manslaughter instruction, because that
instruction was not supported by the evidence.” (People v. Gutierrez,
supra, 45 Cal.4th at pp. 826–827.)
Similarly, in Avila, supra, 46 Cal.4th 680, the Supreme Court held that the
defendant’s argument with the victim did not warrant instruction on heat of passion:
“The record indicates that the victims and their friends, who were not
armed, were socializing in a parking lot, and that two of the friends, Pereira
and Casas, were talking with three young women [they had met that
evening]. A dark-colored vehicle pulled into the parking lot. [The
d]efendant and one or two other men got out and walked toward the group
of friends. The men told at least two of the women to get in the car. The
women refused to leave, and [the] defendant became irate. [A witness]
heard Pereira say ‘Carmelos,’ which [the witness] did not recognize, but
assumed was a gang name. [The d]efendant said ‘Crown Town’ or
‘Corona.’ Pereira and Montoya briefly argued with [the] defendant, and
someone from [the] defendant’s group suggested they go ‘one-on-one.’
Montoya said [the] defendant was free to take the women, and said
‘[t]here’s no big problem here.’ The confrontation appeared to dissipate,
and Montoya and his friends started toward their vehicles. None of these
events was sufficient ‘to arouse feelings of homicidal rage or passion in an
ordinarily reasonable person.’ [Citation.]
“[The d]efendant asserts, however, that there was sufficient evidence
of provocation … because Pereira was the first one to confront [the]
defendant, making the victims and their friends the initial aggressors.
Contrary to [the] defendant’s assertion, [the witness] did not so testify.
Rather, [the witness] testified that as [the] defendant and one or two others
started walking toward everyone in the group of friends, Pereira ‘was the
first one to confront them or talk to them.’ This is not evidence Pereira was
initially aggressive. [The d]efendant also relies on [the witness’s]
testimony that Pereira yelled out ‘Carmelos.’ [The witness] had ‘no idea’
what this term meant, but assumed it was ‘a gang … or something like
that.’ Even assuming it was reference to a gang, and that a gang member
might have perceived the statement as some sort of a challenge, the
39.
requisite provocation must be one that would provoke an ordinarily
reasonable person. [Citation.] Reasonable people do not become
homicidally enraged when hearing the term ‘Carmelos,’ even if it is
understood as a fleeting gang reference or challenge.
“Also contrary to [the] defendant’s assertion, there is no evidence
that during this verbal confrontation, blows were exchanged. [The
d]efendant asserts that victim ‘Montoya personally agreed to fight the
Corona men.’ He relies on … testimony that one person from [the]
defendant’s group said ‘they wanted to fight … one-on-one with one of us,
… which one of ‘em was man enough to fight him.’ [The witness] could
not ‘remember for sure,’ but thought perhaps [the victim] had responded,
‘[A]ll right, you know, if you want.’ Again, even assuming this response
was made, it is scarcely a comment that would reasonably incite homicidal
rage.…
“In sum, there was no substantial evidence of provocation to support
voluntary manslaughter or attempted voluntary manslaughter instructions,
and [the] defendant’s request for such instructions was therefore properly
denied.” (Avila, supra, 46 Cal.4th at pp. 705–707.)
In contrast, instruction on heat of passion was warranted in Breverman, supra, 19
Cal.4th at pages 163–164, where the defendant shot at a group of armed men who
trespassed onto his property, challenged him to fight, and used weapons to “batter and
smash” his car:
“Here, there was evidence that a sizeable group of young men,
armed with dangerous weapons and harboring a specific hostile intent,
trespassed upon domestic property occupied by [the] defendant and acted in
a menacing manner. This intimidating conduct included challenges to the
defendant to fight, followed by use of the weapons to batter and smash [the]
defendant’s vehicle parked in the driveway of his residence, within a short
distance from the front door. [The d]efendant and the other persons in the
house all indicated that the number and behavior of the intruders, which
[the] defendant characterized as a ‘mob,’ caused immediate fear and panic.
Under these circumstances, a reasonable jury could infer that [the]
defendant was aroused to passion, and his reason was thus obscured, by a
provocation sufficient to produce such effects in a person of average
disposition.
“A rational jury could also find that the intense and high-wrought
emotions aroused by the initial threat had not had time to cool or subside by
40.
the time [the] defendant fired the first few shots from inside the house, then
emerged and fired the fatal second volley after the fleeing intruders. At one
point in his police statement, [the] defendant suggested that he acted in one
continuous, chaotic response to the riotous events outside his door.”
(Breverman, supra, 19 Cal.4th at pp. 163–164.)
Instruction was also warranted in People v. Barton (1995) 12 Cal.4th 186(Barton), where the defendant shot a man who tried to run his daughter off the road:
“The record contains substantial evidence, some of it offered by the
prosecution and some by the defense, from which the jury could reasonably
find that [the] defendant intentionally killed Sanchez in a sudden quarrel or
heat of passion. [The d]efendant testified that shortly before the killing of
Sanchez, his daughter Andrea had come to him, extremely upset, and told
him that a man (later identified as victim Sanchez) had threatened her with
serious injury by trying to run her car off the road, and that he had spat on
the window of her car. When [the] defendant and his daughter confronted
Sanchez about his conduct, Sanchez called [the] defendant’s daughter a
‘bitch’ and he acted as if he was ‘berserk.’ [The d]efendant and Sanchez
angrily confronted each other and Sanchez assumed a ‘fighting stance,’
challenging [the] defendant. After [the] defendant asked his daughter to
call the police, Sanchez started to get into his car; when [the] defendant
asked Sanchez where he was going, Sanchez replied, ‘none of your fucking
business,’ and taunted [the] defendant by saying, ‘Do you think you can
keep me here?’ Screaming and swearing, [the] defendant, before firing,
ordered Sanchez to ‘drop the knife’ and to get out of his car, threatening to
shoot if Sanchez did not do so. This testimony provided substantial
evidence from which a reasonable jury could conclude that when [the]
defendant killed Sanchez, [the] defendant’s reason was obscured by passion
to such an extent as would cause an ordinarily reasonable person to act
rashly and without reflection, and that [the] defendant thus shot Sanchez in
a sudden quarrel or heat of passion.” (Barton, supra, 12 Cal.4th at p. 202.)
The present case, however, is not comparable to either Breverman or Barton.
Tyrod’s conduct—swearing, holding a knife, and saying that he would come back to
defendant’s house if he did not get his Kia back—simply did not rise to the level of
provocation that would cause an ordinarily reasonable person to become so incensed or
emotionally overwrought that their ability to reason and think logically was eclipsed.
Nor can we say that Tyrod’s ostensible 1:30 a.m. approach to the Zambrano home
in the Kia with the headlights off—seven hours after the heated argument—was sufficient
41.
to provoke an ordinarily reasonable person into a state of passion. Seven hours is
generally a sufficiently long period of time for a reasonable person’s passions to cool,
especially after a mere argument. (See People v. Hach (2009) 176 Cal.App.4th 1450,
1453–1459 [sufficient cooling period where the defendant quarreled with the victim in
the afternoon, the victim left at 6:00 p.m., and the defendant waited several hours before
finding and killing the victim’s new boyfriend]; see also People v. Moye (2009) 47
Cal.4th 537, 550 (Moye).)
While defendant is correct that heat of passion can be provoked by a series of
events over an extended period of time, success on this theory generally hinges upon the
breakdown of an existing relationship between the victim and the defendant, which was
not present here. In People v. Berry (1976) 18 Cal.3d 509, for example, the defendant
“did not deny strangling his wife, but claimed through his own testimony and the
testimony of a psychiatrist, Dr. Martin Blinder, that he was provoked into killing her
because of a sudden and uncontrollable rage .…” (Id. at p. 513.) He testified his wife
left the country shortly after they were married and, upon her announced return, “she had
fallen in love with another man, one Yako, and had enjoyed his sexual favors, that he was
coming to this country to claim her and that she wished a divorce.” (Ibid.) The wife
spent the next two weeks “alternately taunt[ing] [the] defendant with her involvement
with Yako and at the same time sexually excited [the] defendant, indicating her desire to
remain with him.” (Ibid.) The Supreme Court held these facts sufficient to “arouse a
passion of jealousy, pain and sexual rage in an ordinary man of average disposition such
as to cause him to act rashly from this passion.” (Id. at p. 515.)
Similarly, in People v. Borchers (1958) 50 Cal.2d 321, the defendant killed his
mistress after a long period of provocative conduct that included her “admitted infidelity,
her statements that she wished she was dead, her attempt to jump from the car on the trip
to San Diego, her repeated urging that [the] defendant shoot her … and himself on the
night of the homicide, and her taunt, ‘are you chicken[?]’” (Id. at pp. 328–329.) The
42.
Supreme Court held these facts supported a finding that the defendant acted “in wild
desperation induced by [his mistress’s] long continued provocatory conduct.” (Id. at
p. 329.)
Finally, in Wright, supra, 242 Cal.App.4th 1461, “abundant evidence” was
presented regarding “the acrimonious relationship between [the] defendant and [her
ex-boyfriend], particularly concerning their ongoing custody battle over their son .…”
(Id. at p. 1483.) He made “repeated threats to take custody of their son away” and the
evidence reflected an “ongoing battle … over custody, child support, and their son’s
care.” (Id. at pp. 1483, 1485.) The defendant was provoked into to a state of “intense
fear, anxiety, hopelessness, depression and anger that obscured her reason.” (Id. at
p. 1483.) The Supreme Court held the evidence supported an instruction on heat of
passion. (Id. at p. 1486.)
In this case, there was no substantial evidence of a longstanding relationship
between either defendant and Tyrod, or defendant and Sierra, or of a history of ongoing
abuse or taunting. Tyrod knew about defendant generally through Sierra, but did not
personally know him. Tyrod claimed Sierra had slept with defendant, but there was no
other evidence that corroborated the existence of a sexual relationship between defendant
and Sierra.
The facts here are akin to those in Moye, in which the defendant got into a fight
with his girlfriend’s daughter’s boyfriend one night and then killed him the following
morning. (Moye, supra, 47 Cal.4th at p. 542.) A group of men, including the victim,
“got into an argument” with the defendant “that quickly escalated into a fistfight.” (Ibid.)
The victim hit or tapped the defendant twice in the back with a baseball bat. (Ibid.) The
next morning, the defendant drove around to look for the victim. (Id. at p. 543.) When
the defendant eventually caught up with him, he grabbed the victim’s baseball bat and
used it to bludgeon the man to death. (Id. at p. 546.) The Supreme Court held the
evening fight “did not itself constitute legally sufficient provocation to require instruction
43.
on sudden quarrel/heat of passion voluntary manslaughter in connection with the killing
of [the victim] the following day.” (Id. at p. 551.) Further, “the victim’s asserted act of
kicking [the] defendant’s car on Sunday morning just before [the] defendant … gave
chase likewise did not itself constitute legally sufficient provocation to cause an
ordinarily reasonable person to act out of a heat of passion and kill [the victim] in
response.” (Ibid.)
Here, this objective ordinarily reasonable person element was significantly
undermined by evidence that defendant had a reputation for violence, that is, for reacting
more violently than those around him. There was evidence that Eddie and Vincent were
aware not just that defendant was agitated, but that he had a propensity for violence.
Eddie texted Rabbit that he had to leave the casino because defendant was shooting at
people and causing problems at home, suggesting that Eddie knew defendant might
continue to act inappropriately. Eddie also texted Tyrod that he should not have gone to
the Zambrano home because defendant would not “put up wit shit like that.” Vincent
texted Eddie to be careful because defendant was “all mad” and “might try something.”
When Eddie got home, he argued with defendant. Vincent left because of the argument
and did not want to return without Eddie’s assurance that it was okay to do so.
The evidence demonstrated that even Eddie—who himself had reason to be
provoked by the events, and who may have had something of a reputation of his own for
violence (based on Robert’s statement, “‘I know how they are’”)—responded in a far
more reasonable manner than defendant. Indeed, the prosecutor described Eddie as the
“peacemaker.” Although Eddie and Tyrod began their texting in an aggressive and
antagonistic manner, both attempted to defuse the tension and resolve their conflict in an
amicable way.
Their interaction began around 6:30 p.m., when Tyrod texted Eddie, “Your brother
shot at me .. Sierra told me ya together riding around in my car .. U think im a sucker … I
should bring the police to ur house .. But im a street nigga so u trying play games ..
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That’s fucked up cause I respected ya relationship n u tried me like im a punk.” Eddie
responded in kind, texting, “Dnt go to my momz house like that homeboy u should of
asked me b4 u went overthere, i dnt want no problems but we could get bizzy if it cumz
down to it. I had nothing to do wit what sierra did .… My brother is not going to put up
wit shit like that.”
By 8:16 p.m., however, Eddie appeared genuinely invested in helping Tyrod deal
with Sierra, texting him, “A dog im abt to pull up to my house sierra is hiding and im
going to find out where shes at. Thiz is a big fuckn mess but its going to get fixed….”
Tyrod thanked him, and the men texted cordially with one another. At 10:05 p.m., Eddie
followed up with Tyrod to let him know that Sierra was about to confirm the Kia’s
location, and asked, “r we good or what?” Tyrod said yes and apologized, stating, “Yeah
we good .. My bad for comong to your house like that ..I was mad and not thinking
clear.” Eddie said he understood and “would of been heated too.” An hour later, Tyrod
texted Sierra that Eddie was “cool.” Moreover, Eddie’s repeated efforts to keep Sierra
from coming to the Zambrano home late that night supported the inference that he was
aware of defendant’s violent propensity, feared defendant would do something if he saw
the Kia there, and attempted to prevent that from happening.
Thus, despite Tyrod’s threatening conduct and Sierra’s and Tyrod’s many calls
and text messages, Eddie was not provoked into a heat of passion, but instead de-
escalated the conflict and attempted to prevent the violence. Eddie and Tyrod navigated
the incident in a manner vastly different than defendant. Their ability to do so strongly
rebutted the idea that Tyrod’s conduct was so inflammatory that an ordinarily reasonable
person of average disposition would have been provoked into a state of overpowering
passion or rage.
We conclude a rational jury could not find that an ordinarily reasonable person
would have been provoked into a heat of passion by these facts. If defendant felt
agitated, threatened, and angry by what he believed was Tyrod’s hostile conduct at
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1:30 a.m., he could have stayed inside and called the police. Instead, he waited outside
with a loaded shotgun, moved forward to the Kia as it approached (as the spent shells
demonstrated), and shot at it not once but three times. As courts have said, a killing by a
“‘man of extremely violent passion’” cannot be mitigated to voluntary manslaughter if
the provocation would not also have caused an ordinarily reasonable man to react from
passion and without reflection. (Beltran, supra, 56 Cal.4th at p. 950.) Here, we conclude
the provocation would not have done so and, thus, this element was not supported by
substantial evidence.
4. Conclusion
Even if a rational jury could believe defendant was actually provoked into a
violent passion by Tyrod’s actual and ostensible conduct, a rational jury could not find
the ordinarily reasonable person standard of the third element satisfied.29 The instruction
on heat of passion was not warranted and the trial court did not err in declining to provide
it.
5. Harmless Error
In any event, even if we were to agree that the trial court erred, we would conclude
defendant was not prejudiced by the court’s failure to instruct on heat of passion. “[T]he
Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what
such a jury is likely to have done in the absence of the error under consideration. In
making that evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
29 Our conclusions apply all the more to a theory that defendant was provoked into a violent
passion by Sierra’s conduct (which did not include pulling a knife on defendant) and knew he
was shooting at Sierra. There was evidence to support both theories, and the prosecutor argued
both theories to the jury.
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probability the error of which the defendant complains affected the result.’” (Beltran,
supra, 56 Cal.4th at p. 956.)
Here, the jury was instructed on, and rejected, theories of reasonable and
unreasonable self-defense. The evidence suggested defendant felt threatened by Tyrod’s
conduct and believed his house might come under attack. Defendant’s belief that Tyrod
would return, his worry over his supply of ammunition, his fear for his mother’s safety,
and his observation that his house was being circled by four cars were pieces of evidence
the jury weighed and rejected when it considered whether defendant had a reasonable or
unreasonable belief in the need for self-defense. The same facts formed the basis of
defendant’s heat of passion argument. “[T]he jury having rejected the factual basis for
the claims of reasonable and unreasonable self-defense, it is not reasonably probable the
jury would have found the requisite objective component of a heat of passion defense
(legally sufficient provocation) even had it been instructed on that theory of voluntary
manslaughter.” (Moye, supra, 47 Cal.4th at p. 557.)
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
DETJEN, Acting P.J.
DE SANTOS, J.
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