People v. Malloy CA2/4 ( 2024 )

Filed 1/3/24 P. v. Malloy CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B317367
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA497927)
v.
EDWARD MALLOY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ray G. Jurado, Judge. Affirmed in part,
reversed and remanded in part with instructions.
David L. Polsky, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Stefanie Yee, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Edward Malloy admitted attempting to murder
one man and killing another. Following a jury trial, he was
convicted of attempted first degree murder (Pen. Code, §§ 187,
subd. (a), 664),1murder (§ 187), two counts of possession of a
firearm by a felon (§ 29800, subd. (a)(1)), and shooting at an
occupied motor vehicle (§ 246).
On appeal, Malloy challenges his conviction for murder,
asserting that the People did not overcome his claim of imperfect
self-defense, and that there was insufficient evidence of
premeditation and deliberation. We find that substantial
evidence supports the jury’s findings, and affirm.
Malloy also contends that one of his convictions for
possession of a firearm by a felon must be reversed, because his
possession of the firearm was continuous, and therefore could
lead to only a single conviction. The People concede that one of
these convictions must be reversed. We agree, and reverse one of
the two possession convictions.
Malloy also argues, and again the People concede, that
remand for resentencing is warranted due to recent changes to
section 1170, and that other changes to sentencing laws may
affect his resentencing. Again we agree, and remand the matter
for resentencing. The judgment is otherwise affirmed.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
The People filed an information alleging five counts against
Malloy: attempted murder of D.S.2 on June 5, 2017 (count 1), the
murder of James Oliver on June 25, 2017 (count 2), two counts of
possession of a firearm by a felon (counts 3 and 4), and shooting
at an occupied motor vehicle (count 5). The case proceeded to
trial in November 2021.
A. Facts
Malloy admitted that he tried to kill D. and that he shot
Oliver. Malloy’s two substantive arguments relate to the murder
conviction regarding Oliver. He contends the prosecution’s
evidence did not overcome his defense of imperfect self-defense,
and that the evidence did not demonstrate that the shooting was
deliberate and premeditated. We therefore focus on the evidence
presented at trial relevant to those arguments.
1. Background and origin of dispute
The shootings occurred in the Skid Row neighborhood of
Los Angeles. Los Angeles Police Department (LAPD) officer Deon
Joseph testified that in the 50-block area of Skid Row, “every
street is controlled by a different gang. They kind of divvy up the
territory. So . . . different drug dealers control different sectors.”
Joseph said drug territory disputes were common, and the
“narcotics game” is operated “though intimidation and violence . .
. especially in the Skid Row area.” Some drug dealers charged
“rent” to allow people to live in tents on certain sections of
2 We refer to the living victim and witnesses using initials to
protect their privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)
D.S. was known as “D.” and “Cookie D.”; we refer to him as “D.”
herein. The quotations herein often use non-standard grammar,
and we have refrained from including [sic] in most quotes.
3
sidewalk. The area where D.’s shooting occurred was “a high
traffic drug area.”
A recording of an interview with D. from December 3, 2019
was played for the jury.3 In the interview, D. discussed his
“territory” in the Skid Row area, and said that “[p]eople want in,
they want in. And [Malloy] was one of the ones that wanted in, as
far as the heroin trade.” D. said that within his territory,
“anybody I catch right there, doing their thing, selling heroin or
white cocaine, they already know what it is, you know what I
mean? Hey it’s like, if you’re not getting it from me, you can’t do
it right here.” “And that was the situation with” Malloy’s
girlfriend, Angela Johnson, so “[i]t was my people that
approached her” to say “you in violation, you have to move on
with that.” “And that’s [what] led [Johnson] up to her lying” to
Malloy. D. said that Johnson “tried to put it out there that I
raped her. . . . Which is not true.”
Malloy’s recollection of events was different. He testified at
trial that in 2015, Johnson switched from selling crack to selling
heroin. When D. “found out that [Johnson] wasn’t selling crack
no more and she was selling heroin, he changed his game. He
started selling heroin, because he seen how much money was
brought in. [¶] When [Johnson] would not turn him on to her
connection, he got upset and he set her tent on fire.”4 In D.’s
3 The quotes from this and other interviews are taken from
the transcripts prepared for trial, not the audio and/or video
recordings.
4 In an interview with police on July 11, 2017, which was
played for the jury, Malloy said there was a “heroin scene” in a
certain area, and “individuals” in the area “pressed” Johnson to
“make her pay rent.” He said the “individual that’s pressing her
4
interview with police, he denied knowing anything about
Johnson’s tent being burned.5
Malloy testified at trial that he had lived in the Skid Row
area for 20 years; he lived in a tent on 6th Street. Malloy
testified that there is a “mayor” of Skid Row, who “manage[s] the
areas . . . where certain people put up their tents and where
certain people live.” When Malloy was incarcerated in 2015,
“Deacon” was the mayor; when Malloy was released in 2017, D.
was the mayor. Malloy testified that he spoke with D. the day he
was released from custody to determine where he could set up his
tent.
Malloy told police that he and Johnson had “corresponded”
about Johnson’s issues with D. while they were both in custody,
and when they were both released in 2017, Malloy offered
Johnson protection. So when Malloy approached D., he also
spoke to him about Johnson: “I come to him like a man, I say, bro,
so there’ll be no disrespect, tell me where is your, your
boundaries,” so if Johnson “wants to go back, get back in the
game, she won’t step on your toes.” D. defined his boundaries,
and Malloy responded, “[D]on’t worry about nothing. I’ll control
her.”
In his interview with police, D. said that after Malloy was
released from custody in 2017, he “wanted my area, and it [led]
up to animosity. Instead of him wanting to fight me . . . he tried
to use [Johnson] as an excuse.” D. also said that when Malloy
approached him, Malloy tried to get D. to discuss an issue
couldn’t get her . . . to pay rent,” so “in 2015 he burned her tent
up” and “rat[ted] on her” so she “gets busted for sales of heroin.”
5 In the interview transcript in the record on appeal, there is
a page missing just after D. began discussing this issue.
5
regarding a gang member, even though discussing that issue “can
get you killed.” D. said that if he had talked about the issue with
Malloy, “he could put it out there hoping that he won’t have to
end up trying to kill me,” because the gang would “send people at
me, to take care of me.” D. said this conversation tipped him off
that Malloy had a problem with him.
2. Attempted murder of D.
Malloy testified that in June 2017, he learned from an
acquaintance that D. “was upset with me and my girl [Johnson]
and that he was going to put a bullet in me, my girl and anybody
who socialized with us.” Malloy immediately bought a revolver
and acquired ammunition. He then went to his friend Rick “and
asked him if Cookie D was packing a pistol.” Within 45 minutes
of hearing that D. had threatened him, Malloy—now armed, with
his gun loaded and concealed in a sock—went to find D. “[t]o
discuss the fact that we had an agreement, and I kept my part of
the bargain” that Johnson “wouldn’t be in his area.”
C.S., D.’s wife, testified that on the morning of June 5,
2017, she and D. were in the Skid Row area, sitting in a parked
Porsche Cayenne. D. was in the driver’s seat, C.S. was in the
passenger seat, and the windows were rolled down. C.S. testified
that someone approached the vehicle from behind, and “all of a
sudden gunshots came and my husband . . . ended up getting
shot” in the mouth.6
6 C.S. was a reluctant witness, and initially testified that she
did not recall D. being injured, did not recall seeing anyone
approach the vehicle, and did not recall certain details she told
police. LAPD detective Brad Golden said there were additional
people in the area at the time of the shooting, but he and Officer
Joseph testified that it was common in the Skid Row area for
witnesses to not cooperate with law enforcement.
6
D. told police that on the day of the shooting, he was in the
Cayenne and saw Malloy and Johnson across the street on bikes.
D. said he “didn’t think nothing of it, because . . . he didn’t lock
eyes with me.” Malloy left, returned to the area, approached D.
from behind, and said to D., “Now what?” D. was looking down,
texting, and C.S. said, “What is you doing?” D. looked up and
C.S. “grabbed the gun, which had a black sock on it. . . . And
when she grabbed the gun, I turned and they gave me a quick, a
quick look at me, before the boom, before he shot me.”
C.S. jumped out of the car, got D. out, and took him inside
the Hotel La Jolla to call 911. Detective Golden responded to the
call, and testified that surveillance video from the Hotel La Jolla
showed the “suspect ride up on a bicycle, drop the bicycle behind
the Porsche, walk up where . . . the shooting occurs, and then he
runs off southbound.” Video from another officer’s body-worn
camera showed C.S. telling the officer that “[a] guy” just went “up
to the car and shot my husband.” C.S. said the man came from
behind the car, “walked right up to the window . . . and started
shooting. Then he tried to put it into my back window, but
somebody came” and pushed the man away from the window.
The shooter had a sock over the gun. C.S. added, “They call him
Raymond T.”7 Another witness, T., told an officer that “Raymond
T. just walked up,” and described his appearance.
In his interview with police on July 11, 2017, Malloy
acknowledged that his moniker or nickname was Raymond T.8
He said he told D. that rather than harass Johnson, “come at me
7 On cross-examination, C.S. said that she did not know the
name Raymond T.; she had heard it from “[p]eople on the
streets.”
8 A recording of Malloy’s interview was played for the jury.
7
first if you got a problem, before you concerning her.” But D.
“didn’t do that. He sending waves, mixed signals, telling people .
. . what he’s going to do to me.” Malloy continued, “So I get off
first. I meant to blow his head off,” and “I meant to finish him
right then and there” but after the first shot, Malloy’s revolver
“kept spinning.” Malloy said again later, “Soon as he talks about
what he gonna do to me, I get off first.” Malloy also noted that he
had watched a video of when “I shot him in the face.” Malloy felt
that D. had disrespected him: “If you know anything about
gangbang, we all under the same umbrella. Based on me coming
and getting at D as a man, and telling him man, look here man, I
can control her, let me know.” Nevertheless, D. had been
“intimidating” Johnson, “but he can’t” because “I’m her cover,”
“I’m her insurance, I’m he[r] shelter.” Malloy said, “I ain’t gonna
shed no tears about nothing. You understand me? I get to him,
and if I could take it back, I’d kill him.”
At trial, Malloy testified that he had approached the car
and asked, “Hey man, what’s the problem with me and my girl
being on Maple Street between 5th and 6th?” Malloy testified
that D. “looked at me and told me, ‘You the nigga putting holes in
my pocket.’ So he said, ‘I got something for you.’” Malloy testified
that D. “went to reach for his glove compartment” and “what I
saw in his hand was a black object. I don’t know if it was a gun, a
knife, a phone, a wallet, but I know for a fact . . . what he’s
capable of doing, and I shot him.” On cross-examination, Malloy
agreed that he tried to shoot D. a second time but the gun
malfunctioned, and that he intended to “blow [D.’s] head off.”
Malloy admitted that he said nothing about D. reaching for the
glove box during his interview with police. Malloy confirmed at
trial that if he had the chance to do it again, he would kill D.
8
When asked if what he did was “righteous,” Malloy responded, “I
have the right to pursue my adversary until he no longer a
threat.”
C.S. testified that D. had to have surgery, and he was in
the hospital for about a month. Detective Golden spoke with D.
in the hospital two days after the shooting. D.’s jaw was wired
shut, so he responded to questions by writing the answers. D. was
not cooperative, and did not provide information about the
incident. When asked about the shooting, D. wrote, “The streets
will take care of it.” When Golden suggested that D. would be
investigated if the shooter was harmed, D. responded, “You’ll
never know who it is.”9 In his 2019 interview with police, D. said
he had learned that Malloy told people that he was planning to
shoot D. because “for him to hit me, it would make a name for
him.”
Malloy told police that he knew D. had survived the
shooting, and while D. was in the hospital, “word is, you know,
he’s out to get me.” Malloy continued, “So . . . I’m letting ’em
people know . . . anybody that’s dealing with D has gotta see me.
9 In his interview with police on December 3, 2019, D. said
he did not help police after the shooting due to the “code of the
streets.” He later decided to talk to police while C.S. was facing
criminal charges because “I’m out to help my wife, not you guys.”
The detectives made clear that they were not in a position to
make any promises regarding C.S.’s prosecution, and D. said,
“The DA have to make a decision fast or I’m going to get on the
stand and I’m going to help him [presumably, Malloy] to beat his
case.” The court took judicial notice of C.S.’s February 2020
felony conviction for sales of a controlled substance (Health &
Saf. Code, § 11352, subd. (a)). D. did not testify at trial.
9
Because it’s not over.” Malloy said that on June 18,10 he and a
friend, Rick, approached one of D.’s associates, Diamond, and told
him to “Stay out my way. This don’t have nothing to do with you
bro. This is between me and Cookie D.” He also said, “So I come
down there, I’m hunting. Any Cookie D workers, and Cookie D—
any, anybody that’s had any association with him.”11 When D.
was ready to leave the hospital, “I got people down there that . . .
let[ ] me know. . . . He’s ready to get out. He all right, he gonna
live.” “So it ain’t over with. Based on where he’s from, I send
word to him to give him an ultimatum, we could do it Downtown
or we could do it in your neighborhood, cause I’m from over there
too.” But “he don’t send word back, he just tell a nigga to watch .
. . his back. So I already know that he got four, five individuals
he’s paying.”
Diamond later killed Rick in response to Malloy shooting D.
At trial, Malloy testified that Rick was his “best friend.”
Diamond’s legal name is Kenneth Johns, and Rick’s legal name
was Gerald Jackson. Rick/Jackson was killed on June 23, 2017;
Diamond/Johns was convicted of the murder. (People v. Johns
(Sept. 4, 2020, B296081) [nonpub. opn.].) The court took judicial
notice of the conviction.12
10 Malloy told police this conversation occurred on Father’s
Day. Sua sponte, we take judicial notice of the fact that in 2017
Father’s Day was Sunday, June 18. (Evid. Code, §§ 452, subd.
(h), 459.)
11 On cross-examination, Malloy admitted that “hunting”
meant killing someone.
12 The trial court also took judicial notice that Diamond/Johns
was convicted of stabbing victim P.S. near the Hotel La Jolla. In
his interview with police, D. related that P.S. said, “‘That son of a
10
D. told police that after Malloy shot him, “it traveled fast.
And Rick . . . ended up getting killed [because] Rick was seen
sheltering [Johnson] and [Malloy].” D. continued, “So word got to
Rick, look leave that alone, you know what I mean? Leave that
alone because you’re putting yourself in a situation, you know
what I mean? And he kept on, he kept on doing it, even paying
their phone bills. And that’s what led up to Rick getting killed.”
D. would not reveal to police who shot Rick. He said it was an
“associate” but not someone “in my circle”; rather, “I take care of”
people in the area, and in return people chose to “handle” things.
D. said he did not ask the associate to harm Rick; “[i]t’s one of
these things where business needs to be handled. You don’t need
to say anything. He already knows.”
When the prosecutor asked Malloy on cross-examination
what he meant by “I get off first,” Malloy answered, “[I]t’s like
chess, let you next move be your best move.” The prosecutor
asked, “The first move was [D.] making a threat, is that right?”
Malloy answered, “Yes, ma’am.” The prosecutor continued, “And
the second move was you shooting him in the head; is that
correct?” Malloy answered, “Yes, ma’am.” The third move was D.
having Diamond kill Rick, and the fourth move was Malloy
shooting Oliver. Malloy testified that these were acts of war
“[g]oing back and forth.”
3. Killing of Oliver
Malloy shot Oliver on the morning of June 25, 2017 in an
alley near 4th Street and Wall Street. At trial, Malloy testified
bitch is still living,’ talking about me.” D. said this was “a bad
choice of words,” which is “what got him dealt with.” No evidence
was introduced to connect this stabbing with Malloy or the
Malloy/D. conflict.
11
that he and Johnson were in the alley sitting in chairs, and there
were 16 additional people in the alley at the time. Malloy
testified that he did not see Oliver enter the alley. Malloy told
police that D. “has workers,” and “the boy in the alley, he’s one of
those flunkies.” Malloy testified at trial that he “knew for a fact”
Oliver was a D. flunky “because the simple fact he stayed in a
tent that was owned by” D. Malloy told police that he “talked to
some people, and they tell me, they say . . . he’s one of Cookie D’s
flunkie[s], but the boy can’t hear, he’s deaf . . . and he’s a
panhandler.” At trial, Malloy testified that he had also heard
that Oliver was partially blind.
After Oliver entered the alley, he talked to a woman named
Ebony for a few seconds, Ebony pointed in the direction of Malloy
and Johnson. Oliver began to walk toward Malloy and Johnson.
Malloy testified that as Oliver approached, “I asked him, ‘Hey
man, where are you going?’ And he kept on coming toward me.
And I said, ‘Man don’t walk up on me,’ and he kept on coming.”
Malloy estimated that Oliver was about 20 feet away when
Malloy first said, “Don’t walk up on me.” Oliver asked Malloy if
he could buy a $5.00 rock; Malloy responded that he does not sell
rocks, and he said at trial that Oliver “knew better.”
Malloy testified that Oliver continued to walk toward him.
Malloy said in his interview with police, “I tell the dude, Say
man, back up. . . . I asked that dude three times. I asked him
three times, Man, don’t walk up on me. Don’t walk up on me.
Don’t walk up on me.” Malloy said he was high at the time, but
he was “paying attention to my surroundings.” Malloy told police
that as Oliver was advancing “[m]y back is on the wall,” and
Malloy was protecting “four females” who were also in the alley
and “I feared for my life just as well, you know?”
12
Malloy told police that “the boy that came in the alley had
on a black hoodie. I tell him . . . The man “has on this black
hoodie, and in the front of his black hoodie he has a bulge.”
Malloy testified that “this bulge in the front of his hoodie,” was
“hanging down,” so it looked heavy, like Oliver had a gun.13
When police asked if the man pulled anything out of his hoodie,
Malloy responded, “I don’t give him a chance,” and added, “It’s
him, it’s either me or him.” At trial, Malloy agreed that Oliver
never pulled anything out of his pockets or showed any type of
weapon.
Malloy testified that when Oliver “got within arm distance
and me and him locked eyes, that’s when I shot him.” Malloy
initially said that when Oliver “got close enough to me and we
locked eyes, that’s when I pulled my gun out of my backpack and
told him to back up off me. He didn’t back up off me so I shot
him.” Malloy also testified that he pulled the gun, still within the
sock, from the backpack and put it on his lap as Oliver was
approaching. He also said he pointed the gun (still in the sock) at
Oliver before Oliver reached arm’s distance, and before Malloy
said to “back up” or “don’t walk up on me.”
In his interview with police, Malloy emphasized that he
never revealed the gun in the alley: “I never brandished it” and
“nobody in the alley could say they seen me pull a gun.” He
admitted that he used the same revolver in both shootings.
When defense counsel asked Malloy if he shot Oliver because he
thought D. sent him to kill Malloy, Malloy said, “Yes, ma’am. I
feared for my life, me and [Johnson].” He testified later, “I knew
13 In closing arguments the prosecutor played video of Oliver
walking into the alley, and questioned Malloy’s testimony that
Oliver’s sweatshirt looked as if it had a bulge in it.
13
for sure that he was in the alley to do some harm to me and my
girl.”
In response to a call, police officers found Oliver on the
ground with a gunshot wound to his temple. Oliver was flailing
and trying to move; paramedics transported him to the hospital.
Oliver had been shot through the left temporal region of his head;
there was an exit wound in the left back of his head. He lived for
seven days in the hospital before succumbing to his injury.
Oliver’s clothing was removed and collected at the scene; he had a
phone, but no other items or weapons.
Video played for the jury showed Malloy and Johnson
between about 6:00 a.m. and 7:30 a.m. Malloy and Johnson
entered the alley where the shooting occurred, where they stayed
for less than an hour. Video showed Oliver walking into the alley
at about 6:59 a.m. At 7:01, Malloy quickly left the alley on a
bicycle, followed by Johnson. Malloy and Johnson traveled
together for several blocks, passing an awning on Boyd Street.
Following a tip, police officers found a bag on top of the awning.
The bag contained a Smith & Wesson .38 caliber revolver inside a
black sock, which had holes in it. The gun was loaded with four
live rounds, and contained a spent casing. The gun and sock
were shown to the jury.
In his interview with police, Malloy said, “I’m not going to
stop bro, until I get everybody—and I believe in the stand your
ground law.” He also said, “[Y]ou see anybody enemy, I’m gonna
knock ’em down.” Malloy said there were “a couple more dudes
out there that . . . I’m still hunting for, you know? And uh, like I
told him, . . . if you want to play that game . . . there’s going to be
consequences [that] go along with it.” Malloy said he was not
going to “check my tail for a rat,” because “How long you gonna
14
be a bitch? Fuck that man.” Malloy also said, “I know the boy
Cookie D gonna do something to” Johnson, and “as long as I’m,
I’m free, he gonna hunt me, I’m gonna hunt him. Anybody got
anything dealing with him” and “the hunt won’t stop here.”
In D.’s interview with police the detectives asked, “What
was the deal with the guy in the alley . . . ?” D. responded,
“Paranoia, as far as with [Malloy].” D. said he did not have
firsthand knowledge, but he heard from someone who was there
that “the guy walked too close to [Malloy] and [Malloy] shot him.”
D. said, “Out of paranoia, he killed the guy,” but “that guy didn’t
have nothing to do with nothing.”
On cross-examination, Malloy agreed that it was “righteous
. . .to shoot someone who worked for Cookie D.” He also testified
that the territory D. claimed “wasn’t his territory. He completely
punked [Johnson] out of that.” Malloy continued, “It was
[Johnson’s] territory first,” and D. “[b]ullied her out.”
4. Additional defense evidence
In addition to Malloy’s testimony, the defense presented
evidence that about $2,200 in cash was found in D. and C.S.’s car
after Malloy shot D. The defense also presented evidence that
police located Malloy after his cell phone number came up during
the investigation of Rick’s murder.
The defense also called a witness, Paula Taylor, who
testified that she had known Malloy for over 20 years and did not
think of him as a violent person. On cross-examination, Taylor
also said Malloy was not a drug dealer. Upon questioning, Taylor
said that if she was aware Malloy had been convicted of selling
drugs six times over the last 20-year period, it would not change
her opinion that Malloy was not a drug dealer. She also said that
despite Malloy admitting to shooting people in the face and head,
15
it did not change her opinion that Malloy was not a violent
person. Taylor also admitted that it had been more than four
years since she last saw Malloy.
5. Verdict and sentence
After closing arguments, with respect to the shooting of D.,
the jury found Malloy guilty of attempted first degree murder
(§§ 187, subd. (a), 664; count 1); possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 3); and shooting at an occupied motor
vehicle (§ 246; count 5). With respect to the shooting of Oliver,
the jury found Malloy guilty of first degree murder (§ 187, count
2) and possession of a firearm by a felon (§ 29800, subd. (a)(1);
count 4). As to counts 1, 2, and 5, the jury found true allegations
that Malloy personally used and discharged a firearm, causing
great bodily injury. (§ 12022.53, subds. (b), (c), and (d).)
The court sentenced Malloy to 85 years and eight months to
life, calculated as follows: on count 1, a term of seven years to life
plus 25 years to life on the firearm allegation under section
12022.53, subdivision (d); on count 2, a consecutive term of 25
years to life, plus 25 years to life on the firearm allegation under
section 12022.53, subdivision (d); on count 3, a consecutive term
of three years; on count 4, a consecutive term of eight months;
and on count 5, a term of seven years, stayed under section 654.
On the additional firearm enhancements under counts 1 and 2,
the court also sentenced Malloy to 20-year terms (§ 12022.53,
subd. (c)) and 10-year terms (§ 12022.53, subd. (b)), and stayed
those sentences.
DISCUSSION
A. Sufficiency of the evidence as to count 2 (murder)
Malloy asserts there was insufficient evidence to allow the
jury to find beyond a reasonable doubt the absence of imperfect
16
self-defense. He also contends there was insufficient evidence of
premeditation and deliberation to support the verdict for first
degree murder.
When we consider whether sufficient evidence supports a
verdict, we review the entire record in the light most favorable to
the judgment, and determine whether it contains evidence that is
reasonable, credible, and of solid value such that a reasonable
jury could have found the defendant guilty beyond a reasonable
doubt. (People v. Ware (2022) 14 Cal.5th 151, 167.) We presume
the existence of every fact in support of the judgment the jury
could reasonably have deduced from the evidence. (Ibid.) It is
the exclusive province of the jury to determine the credibility of
witnesses and the truth or falsity of the facts upon which a
determination depends. (Ibid.)
“‘A reversal for insufficient evidence “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’” the jury’s verdict.’”
(People v. Penunuri (2018) 5 Cal.5th 126, 142.)
1. Imperfect self defense
Malloy asserts there was “insufficient evidence from which
jurors could reasonably find beyond a reasonable doubt the
absence of imperfect self-defense.” He acknowledges that the
“jury was free to reject Malloy’s statements, including his
asserted fear of imminent danger.” Malloy argues, however, that
“[t]he evidence beyond Malloy’s statements did not permit an
inference of another mental state at the time of the Oliver
shooting.”14 We disagree.
14 The jurors were instructed on self-defense, imperfect self-
defense, and defense of another.
17
“The mental state required for the crime of murder is the
existence of malice, which may be either express or implied.”
(People v. Mumin (2023) 15 Cal.5th 176, 190, citing §§ 187, subd.
(a); 188.) Under the doctrine of imperfect self-defense, when a
jury finds that a defendant killed another person because the
defendant actually, but unreasonably, believed he was in
imminent danger of death or great bodily injury, the defendant is
deemed to have acted without malice. (People v. Rangel (2016) 62
Cal.4th 1192, 1226.) “[B]ecause malice is absent when imperfect
self-defense is present, the prosecution cannot prove malice
without disproving imperfect self-defense.” (People v. Schuller
(2023) 15 Cal.5th 237, 254-255.) Thus, “when provocation or
imperfect self-defense are at issue, the prosecution is compelled
to disprove those circumstances beyond a reasonable doubt.” (Id.
at p. 254.) We nevertheless review for substantial evidence.
(People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 212.)
To support imperfect self-defense, the defendant must have
believed he was in imminent danger of death or great bodily
injury. (People v. Landry (2016) 2 Cal.5th 52, 97.) The doctrine
is narrow, and applies only when the defendant has an actual
belief in the need for self-defense and only when the defendant
fears immediate harm that must be dealt with instantly. (Id. at
pp. 97-98.) “To satisfy the imminence requirement, ‘[f]ear of
future harm—no matter how great the fear and no matter how
great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great
bodily injury.’” (People v. Trujeque (2015) 61 Cal.4th 227, 270.)
Substantial evidence supports the jury’s conclusion that
Malloy fired at Oliver without fear of imminent harm and an
actual belief in the need for self-defense. Evidence showed that
18
Malloy’s actions were strategic and were intended to send a
message. Malloy testified that it was important for him to “get
off first” in his battle with D., and to that end, he bought a gun
and bullets before finding D., sneaking up from behind him, and
shooting him in the face. Malloy told police that he intended to
kill D., and after D. survived the shooting, Malloy was “hunting”
D.’s associates because “it’s not over.” Malloy also testified that
the two shootings were “moves” in a “chess game”—shooting D. in
response to D.’s threats, and shooting Oliver in response to Rick’s
death. He said these were acts of war “[g]oing back and forth.”
Malloy also said he would not “be a bitch” and continue to “check
[his] tail for a rat.” At trial, Malloy agreed that it was “righteous
. . .to shoot someone who worked for Cookie D.”
It was also undisputed that Oliver was unarmed at the
time of the shooting, and that Oliver did not say anything
threatening to Malloy, undermining Malloy’s claim that danger
was imminent. D. told police that Oliver had “nothing to do with
nothing,” and that Malloy shot Oliver out of paranoia. Malloy
testified that Oliver approached him asking about buying drugs,
and because Oliver “knew better,” Malloy presumed that Oliver
intended to kill Malloy. The jury was free to find Malloy’s
explanation of the situation not credible, given the ample
evidence that Malloy was engaged in an ongoing “war” with D.,
he was “hunting,” D.’s associates, and he called Oliver’s killing a
“move” in the game. (See People v. Mumin, supra, 15 Cal.5th at
p. 202 [“‘it is the exclusive province of the . . . jury to determine
the credibility of a witness’”].)
Even if the jury had concluded that Malloy was in fear of
Oliver, there was substantial evidence that Malloy did not act out
of fear alone. A defendant is not entitled to claim self-defense
19
where “he did not act on the basis of fear alone but also on a
desire to kill his rival.” (People v. Nguyen (2015) 61 Cal.4th 1015,
1044.) As the Supreme Court discussed in Nguyen, a claim of
self- defense “is not available when a person does not act out of
fear alone, but out of fear and a desire to harm the attacker.” (Id.
at p. 1045.) Malloy himself said he was “hunting” D.’s associates,
suggesting that he was willing to harm any associate of D. if the
opportunity presented itself. After Oliver’s shooting, Malloy told
police that he was “still hunting,” and “as long as I’m, I’m free, he
gonna hunt me, I’m gonna hunt him. Anybody got anything
dealing with him,” and “the hunt won’t stop here.” Thus,
substantial evidence supports a finding that even if Malloy did
fear Oliver as he approached Malloy in the alley, Malloy also
intended to take him down as part of his ”war” with D.
We therefore conclude the prosecution satisfied its burden
of disproving imperfect self-defense beyond a reasonable doubt,
and that substantial evidence supports the jury’s verdict.
2. Deliberation and premeditation
Malloy also contends there was insufficient evidence that
Oliver’s murder was deliberate and premeditated, and therefore
he should not have been convicted of first degree murder. He
asserts there was “no evidence of the requisite planning
activity—facts related to [Malloy’s] conduct before the shooting
that reflected a pre-existing intent to kill Oliver.” Malloy argues
that he did not pursue Oliver or plan their meeting, and “there
was no evidence of a motive to kill Oliver.” We find that
substantial evidence supports the verdict.
“Deliberation” refers to careful weighing of considerations
in forming a course of action, and “premeditation” means thought
over in advance. (People v. Pearson (2013) 56 Cal.4th 393, 443.)
20
“‘“An intentional killing is premeditated and deliberate if it
occurred as the result of preexisting thought and reflection rather
than unconsidered or rash impulse.”’ [Citations.] ‘The true test
is not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity
and cold, calculated judgment may be arrived at quickly. . . .’
[Citation.] Such reflection may be revealed by planning activity,
motive, and the manner of the killings, among other things.”
(People v. Potts (2019) 6 Cal.5th 1012, 1027.)
Here, Malloy told police he was “hunting” D.’s flunkies,
making clear that he intended to harm people Malloy perceived
as working for D. Malloy armed himself for this purpose, and
kept the gun hidden in a sock in his backpack. Malloy testified
that as Oliver approached him in the alley, Malloy took the gun
out of the backpack, still concealed in the sock, and put it in his
lap, suggesting that he was planning to kill Oliver if he got closer.
(See, e.g., People v. Salazar (2016) 63 Cal.4th 214, 245 [retrieving
a loaded gun demonstrates planning and preparation].) Oliver
never threatened Malloy or showed a weapon, and Malloy told
police he did not want to “give [Oliver] a chance” to draw a
weapon, because “it’s either me or him,” suggesting that Malloy
intended to kill Oliver because Malloy recognized him as someone
associated with D.
Moreover, Malloy said killing Oliver was a “move” in a war
or game of chess that had spanned several weeks, indicating that
Malloy had been considering killing any of D.’s associates long
before Oliver walked into the alley. Malloy argues there was no
evidence of “unresolved animosity” between Malloy and Oliver
specifically, and notes that Malloy approached Diamond, one of
D.’s flunkies, without killing him. However, Malloy said he was
21
with Rick when he approached Diamond on June 18; Diamond
killed Rick on June 23. Malloy testified at trial that Rick’s death
was the third “move” in his war with D., and Malloy killing
Oliver was a retaliatory fourth “move.” Thus, the fact that
Malloy once approached Diamond without killing him does not
support a finding that, following Rick’s death, Oliver’s murder
was not deliberate and premeditated.
Malloy relies heavily on People v. Wear (2020) 44
Cal.App.5th 1007 (Wear), in which the court found insufficient
evidence of premeditation and deliberation. In that case, the
defendant, Wear, “arranged to meet an acquaintance, Ryan
Rossknecht, and went to the meeting with a friend, Brandon
Lowell. Wear apparently intended to buy or steal a gun from
Rossknecht and possibly to supply him with heroin. The evidence
suggested that an argument arose during the meeting, and
Rossknecht, who had two guns with him, shot Lowell once with
one of them. Wear, who was unarmed, then seized that gun, shot
Rossknecht twice with it, and fled with the other gun. Lowell
and Rossknecht died of their injuries.” (Id. at p. 1009-1010.) The
jury found Wear guilty of murdering Rossknecht, and on appeal,
Wear argued the evidence was insufficient to support this
conviction “on either of the theories presented: felony murder
during a robbery and premeditated murder.” (Id. at p. 1010.)
Regarding premeditation and deliberation, the Court of
Appeal held that the evidence did not support Wear’s conviction.
A text message suggesting animosity between the men was
presented at trial out of context, and the Court of Appeal held
that the “message cannot reasonably be construed as evidence
that Wear planned to kill Rossknecht when considered in its
context.” (Wear, supra, 44 Cal.App.5th at p. 1025.) The court
22
acknowledged there was “some evidence of motive here. It was
essentially undisputed that Wear and Rossknecht knew each
other and had some sort of falling out that may have been
unresolved at the time of the shootings.” (Id. at p. 1029.) The
court stated, however, “The expression of an intent to kill must
be considered in context, and the fact that a defendant at one
time wished to kill the victim, without more, does not permit a
reasonable inference that the defendant’s eventual killing of the
victim was deliberate and premeditated.” (Ibid.) The court also
stated that “there was strong evidence that Wear did kill
Rossknecht impulsively, shooting Rossknecht with Rossknecht’s
own gun only after Rossknecht shot Lowell in the course of an
argument.” (Id. at p. 1031.)
Malloy argues there is less evidence of premeditation and
deliberation here than in Wear. He asserts that Malloy did not
plan to meet, follow, or pursue Oliver. But lack of planning to
meet or follow Oliver specifically does not negate Malloy’s clear
statements that he was “hunting” people associated with D. He
also asserts “there was no evidence of a motive to kill Oliver,” but
this argument is directly contradicted by Malloy’s own
statements that Oliver was one of D.’s associates and his killing
was in response to Rick’s murder. Overall, we find the reasoning
of the Wear case inapplicable to the facts here, and that
substantial evidence supports the jury’s verdict.
B. Firearm possession conviction
Malloy contends that one of his two convictions for felon in
possession of a firearm must be reversed because he possessed
the same firearm over a single continuous period. The People
concede that one of these convictions must be reversed, and we
agree.
23
“[P]ossession of a firearm by a felon is a continuing
offense,” so “‘only one violation occurs even though the proscribed
conduct may extend over [an] indefinite period.’” (People v.
Mason (2014) 232 Cal.App.4th 355, 365.) As the People
acknowledge, Malloy was charged with possessing the same
firearm on June 5 and June 25, and there was no evidence of a
break in possession, so one of the two convictions under section
29800, subdivision (a)(1) should be reversed. We therefore
reverse Malloy’s conviction on count 4.
C. Findings under section 12022.53, subdivisions (b) and
(c) on count 5 (shooting at an occupied vehicle)
Malloy notes that for count 5, shooting at an occupied
vehicle (§ 246), the jury found true firearm allegations under
section 12022.53, subdivisions (b), (c), and (d). However, only
section 12022.53, subdivision (d) specifically refers to section 246:
“[A] person who, in the commission of a felony specified in . . .
Section 246 . . . personally and intentionally discharges a firearm
and proximately causes great bodily injury . . . or death, to a
person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state
prison for 25 years to life.” By contrast, section 12022.53,
subdivisions (b) and (c) apply only to felonies specified in
subdivision (a) of that statute, which does not include section 246.
Malloy therefore argues, and the People agree, that the
jury’s true findings on count 5 under section 12022.53,
subdivisions (b) and (c) must be stricken. We concur, and order
the findings stricken.
D. Remand for resentencing
At the time Malloy was sentenced, the law provided that
where a statute specified three possible terms of imprisonment
24
(lower, middle, and upper), the trial court had broad discretion to
select the term that best served the interests of justice. (Former
§ 1170, subd. (b); Former Cal. Rules of Court, rule 4.420(e);
People v. Sandoval (2007) 41 Cal.4th 825,847.) Effective January
1, 2022, Senate Bill 567 altered the determinate sentencing law
by amending section 1170, subdivision (b), to make the middle
term the presumptive sentence in the absence of specified
circumstances. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd.
(b)(1), (2); People v. Flores (2021) 73 Cal.App.5th 1032, 1038.)
The trial court may impose the upper term only where there are
circumstances in aggravation and such circumstances have been
found true beyond a reasonable doubt or are stipulated by the
defendant. (§ 1170, subd. (b)(2); People v. Lopez (2022) 78
Cal.App.5th 459, 464.) The amendments to section 1170 apply
retroactively. (Flores, supra, at p. 1039.)
Malloy asserts that he is entitled to remand for a new
sentencing hearing under the revised section 1170, subdivision
(b). The People concede that remand for resentencing is
appropriate. We agree, and therefore remand the case for
resentencing.
The parties further agree that at the time of resentencing,
the trial court should consider two additional changes to the law.
First, when Malloy was sentenced, section 654, subdivision (a),
required that “[a]n act or omission that is punishable in different
ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of
imprisonment[.]” Effective January 1, 2022, Assembly Bill 518
amended section 654 by removing the requirement that a
defendant be punished under the provision providing for the
longest term of imprisonment, and granting the trial court
25
discretion to impose punishment under any applicable provision.
(Stats. 2021, ch. 441, § 1.) Section 654, subdivision (a) now
provides, “[a]n act or omission that is punishable in different
ways by different provisions of law may be punished under either
of such provisions[.]”
The trial court sentenced Malloy to an indeterminate term
on count 1 (attempted murder), and under former section 654,
stayed the determinate term on count 5 (shooting at an occupied
vehicle). Malloy asserts, and the People concede, that the revised
section 654 will apply upon resentencing.
Second, section 1385 was amended by Senate Bill No. 81
(2020-2021 Reg. Sess.) (Stats. 2021, ch. 721, § 1) to specify
factors that the trial court must consider when deciding whether
to strike enhancements from a defendant’s sentence in the
interest of justice. Here, the trial court sentenced Malloy to
terms of seven years to life with a 25-year enhancement on count
1 (attempted murder), and 25 years to life with a 25-year
enhancement on count 2 (murder). The parties agree that upon
resentencing, the current version of section 1385 will apply to the
sentencing of counts 1 and 2.
DISPOSITION
Malloy’s conviction on count 4, possession of a firearm by a
felon (§ 29800, subd. (a)(1)) is reversed. The true findings on
count 5 under section 12022.53, subdivisions (b) and (c) are
stricken. The judgment is otherwise affirmed. Malloy’s sentence
is vacated, and the matter is remanded for resentencing in
accordance with sections 1170, 654, 1385, and any other statute
applicable at the time of resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
26
COLLINS, J.
We concur:
CURREY, P.J.
MORI, J.
27