People v. Gonzalez CA3 ( 2023 )

Filed 10/11/23 P. v. Gonzalez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C095230
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20210000102)
v.
ROBERT GONZALEZ,
Defendant and Appellant.
A jury found defendant Robert Gonzalez guilty of murder (count 1) and
possession of a firearm by a person who has been convicted of a felony (count 2). The
jury found that the murder was in the second degree and defendant personally and
intentionally discharged a firearm that caused death in the commission of this offense.
(Pen. Code, § 12022.53, subd. (d).)1
1 Undesignated statutory references are to the Penal Code.
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The trial court sentenced defendant to 15 years to life in prison for count 1 plus a
consecutive term of 25 years to life for the firearm enhancement. The court imposed and
stayed a term of 3 years for count 2.
On appeal, defendant argues the trial court’s decision to instruct the jury with
CALCRIM No. 3472 on contrived self-defense was not supported by substantial
evidence. Defendant further contends the trial court erred in not excluding under
Evidence Code section 352 evidence of: (1) the victim’s statements describing
defendant’s prior conduct toward the victim, and (2) defendant’s use of force on his
girlfriend in taking her vehicle before the shooting. Defendant also argues he is entitled
to remand for resentencing under People v. Tirado (2022) 12 Cal.5th 688 (Tirado),
because the trial court misunderstood its discretion to strike the charged enhancement and
impose a lesser, uncharged enhancement in its place.
We reject defendant’s claims of instructional and evidentiary error but agree
remand is appropriate to permit the trial court to exercise its sentencing discretion. We
shall therefore vacate the sentence and remand this case for the limited purpose of
allowing the trial court to exercise its discretion as to whether to strike the section
12022.53, subdivision (d) enhancement and instead impose a lesser, uncharged
enhancement. In all other respects, the judgment is affirmed.
I. BACKGROUND
After 1 a.m. on December 23, 2019, A.P. went outside a bar with the victim to
vape. A.P. testified defendant came outside, stood in front of the victim, and asked A.P.
for a cigarette. After A.P. said he did not have one, defendant asked the victim. A.P.
testified the victim said he had one, pulled it out, and then dropped it on the ground.
Previously, A.P. told the police defendant dropped the cigarette. Either way, after the
cigarette fell to the ground, defendant said, “ ‘Oh, you’re gonna make me bend over like
a bitch?’ ” According to A.P., the next thing that happened was the victim punched
defendant in the head. Then, “[t]hey just started fighting and backing up.” A.P.
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described it as “two people engaging together.” Seconds later, A.P. heard approximately
four gunshots and ran inside the bar.
Surveillance video of the area outside the bar showed defendant bend down to
pick something up as A.P. had described. The victim struck defendant, whose back was
to the parking lot, and the struggle was not visible for a few seconds as they moved
toward the parking lot. Then, defendant’s elbow extended up, and a puff of smoke
appeared near his hand. Defendant fell to the ground and rolled over. The victim swung
at defendant, and then fell to the ground and stopped moving. Defendant walked toward
a parked white SUV. The entire video is 24 seconds long.
No weapons were found on the victim. He died of a gunshot wound to the head.
A bar customer testified to seeing the white SUV drive away. Defendant’s
girlfriend’s white SUV was found a few weeks later in El Paso, Texas. She had reported
it stolen in the morning after the shooting.
A year later, defendant voluntarily made contact with a border patrol agent at the
Calexico point of entry.
II. DISCUSSION
A. CALCRIM No. 3472
The trial court instructed the jury with CALCRIM No. 3472 that “[a] person does
not have the right to self-defense if he provokes a fight or quarrel with the intent to create
an excuse to use force.” It is error to give an instruction that has no application to the
facts of the case; there must be substantial evidence to support the instruction. (People v.
Cross (2008) 45 Cal.4th 58, 67; People v. Campbell (1994) 25 Cal.App.4th 402, 408.)
Defendant argues substantial evidence did not justify giving this instruction because he
did not initiate the fight with his own assault or the commission of a felony, and only said
words to the victim before the fight began.
CALCRIM No. 3472 itself does not include the limitations suggested by
defendant: It denies the right of self-defense if the defendant “provokes a fight or
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quarrel” to create an excuse for using force. (Italics added.) This is a correct statement
of the law and defendant does not argue otherwise. What is required is only that
defendant sought, provoked, or invited the quarrel with the intent of creating a pretext for
attacking the assailant. (People v. Holt (1944) 25 Cal.2d 59, 66; People v. Hinshaw
(1924) 194 Cal. 1, 26; People v. Hecker (1895) 109 Cal. 451, 462; Fraguglia v. Sala
(1936) 17 Cal.App.2d 738, 743.) The fact defendant was not the first person to make
physical contact does not preclude the applicability of this rule. (See People v. Eulian
(2016) 247 Cal.App.4th 1324, 1334 [defendant did not have the right to use physical
force to settle a physical confrontation he arguably created with aggressive conduct of
yelling and gesturing regardless of whether the victim kicked defendant and his mother in
response to that conduct].)
None of the authorities defendant cites demonstrate otherwise. Rather, they
explain the self-defense doctrine “ ‘may not be invoked by a defendant who, through his
own wrongful conduct (e.g., the initiation of a physical attack or the commission of a
felony), has created circumstances under which his adversary’s attack or pursuit is legally
justified.’ ” (People v. Enraca (2012) 53 Cal.4th 735, 761; accord In re Christian S.
(1994) 7 Cal.4th 768, 773, fn. 1.) These authorities do not hold these are the only
circumstances in which a defendant loses the right to self-defense or otherwise overrule
the existing authority that authorizes CALCRIM No. 3472. (See People v. Holt, supra,
25 Cal.2d at pp. 65-66 [“ ‘a cause which originates in the fault of the person himself[,] in
a quarrel which he has provoked, or in a danger which he has voluntarily brought upon
himself, by his own misconduct, can not be considered reasonable or sufficient in law to
support a well-grounded apprehension of imminent danger to his person,’ ” italics
added].) In In re Christian S., the statement on which defendant relies was made in a
footnote and not elaborated on beyond explaining that a fleeing felon who shoots a
pursuing police officer to escape a murder conviction cannot invoke self-defense. (In re
Christian S., supra, at p. 773, fn. 1.) In Enraca, the statement similarly reflects the
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circumstances alleged in that case. (Enraca, supra, at p. 762.) The initiation of a
physical attack or the commission of a felony are not prerequisites for giving CALCRIM
No. 3472. As such, we conclude substantial evidence supported the instruction.
In determining whether substantial evidence supports a jury instruction, “we view
the evidence most favorably to the judgment presuming the existence of every fact that
reasonably may be deduced from the record in support of the judgment.” (People v.
Jantz (2006) 137 Cal.App.4th 1283, 1290.) Defendant relies on the fact A.P. agreed with
defense counsel’s suggestion that the statement “ ‘Oh, you’re gonna make me bend over
like a bitch?’ ” was made “in a jokey tone of voice,” and defendant “did not sound angry
when he said it,” but the statement could still have been designed to antagonize the victim
into action. Defendant approached the victim while carrying a loaded firearm he was not
allowed to possess. It was only seconds into their fight when defendant fired multiple
shots, killing his unarmed victim, and then calmly walked to a vehicle that was parked
nearby before ultimately fleeing for more than a year. Taken as a whole, the evidence
supports the reasonable inference that defendant provoked a confrontation with the victim
to give himself the apparent grounds to kill the victim and claim self-defense. We
therefore reject defendant’s assertion of instructional error.
B. Victim’s Statements Regarding Defendant’s Prior Conduct Toward Him
Defendant contends the trial court erred in admitting the victim’s statements
describing his prior conduct toward the victim because any probative value was
substantially outweighed by the prejudicial potential of the evidence. We are
unpersuaded.
1. Trial Court Proceedings
During trial, the prosecution sought to admit statements the victim made to A.P.
and to his sister. With respect to A.P., the prosecution offered testimony that the victim
told him defendant was rude and disrespectful to him at a different bar earlier that night
about the victim’s recently-deceased son, and the victim wanted to fight defendant
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because of it. With respect to the victim’s sister, the prosecution offered testimony that
the victim told her he did not want to get into a fight with a man who had been “talking
shit” to him, picking on him, giving him looks, and rubbing shoulders with him, but he
would fight him if his sister did not come get him.
The trial court admitted the statements under Evidence Code section 1250 as
circumstantial evidence of the victim’s state of mind and conduct in conformity with that
state of mind and not the truth of the matter asserted. The court determined the
statements were “relevant to the state of mind of the decedent, because it relates to the
issue of whether or not the defendant would be engaged in self-defense.” The court also
concluded the statements were not testimonial and not unduly prejudicial under Evidence
Code section 352.
The court gave a limiting instruction before the relevant portions of testimony
from both the victim’s sister and A.P. Specifically, the court instructed the jury:
“Evidence of the statements made by [the victim] are offered to prove by circumstantial
evidence [his] state of mind and conduct in conformity with that state of mind only and
are not being offered to prove the truth of the matter asserted regarding the defendant’s
conduct. It is up to the jury to decide whether the state of mind of [the victim] is relevant
in this case.” The trial court also instructed the jury with CALCRIM No. 303 that,
“During the trial, certain evidence was admitted for a limited purpose. You may consider
that evidence only for that purpose and for no other.”
2. Evidence Code Sections 1250 and 352
“Evidence Code section 1250, which authorizes the admission of out-of-court
statements to prove the declarant’s state of mind, permits the admission of such evidence
only if the declarant’s state of mind ‘is itself an issue in the action’ or if the evidence ‘is
offered to prove or explain acts or conduct of the declarant.’ (Evid. Code, § 1250, subd.
(a)(1)-(2).) ‘Relevant evidence is evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.” ’ ”
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(People v. Riccardi (2012) 54 Cal.4th 758, 814-815, abrogated on other grounds in
People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
“A prerequisite to this exception is that the declarant’s mental state or conduct be
placed in issue.” (People v. Kovacich (2011) 201 Cal.App.4th 863, 884.)
Defendant argues the trial court erred in admitting the evidence because its
probative value was substantially outweighed by the danger of undue prejudice. (Evid.
Code, § 352.) In light of defendant’s alternative assertion that his trial counsel rendered
ineffective assistance in not specifically raising an Evidence Code section 352 objection,
we address the trial court’s ruling on the merits rather than deciding if the issue was
forfeited.
“The abuse of discretion standard of review applies to any ruling by a trial court
on the admissibility of evidence. [Citation.] This standard is particularly appropriate
when, as here, the trial court’s determination of admissibility involved questions of
relevance, the state-of-mind exception to the hearsay rule, and undue prejudice.
[Citation.] Under this standard, a trial court’s ruling will not be disturbed, and reversal of
the judgment is not required, unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.”
(People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on another point in People v.
Rundle (2008) 43 Cal.4th 76, 151.)
Defendant argues evidence regarding the victim’s state of mind had minimal
relevance because it was indisputable the victim was the initial aggressor, and the
relevant question was whether defendant acted reasonably under the circumstances. In
other words, he contends the conduct of the victim was not in dispute. “ ‘[A] fact . . .
generally becomes “disputed” when it is raised by a plea of not guilty or a denial of an
allegation [and] remains “disputed” until it is resolved.’ ” (People v. Brooks (2017) 3
Cal.5th 1, 38.) Thus, it is not true that whether the victim was the initial aggressor was
not in dispute merely because the evidence appeared to demonstrate he was; indeed, in
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arguing for the admissibility of this evidence, the prosecution indicated it was hoping to
show otherwise. Regardless, as defendant acknowledges, one of the key issues in the
case was whether defendant reasonably believed he was in imminent danger of suffering
great bodily injury and that the immediate use of deadly force was necessary to defend
against that danger. Defendant cites authority explaining “[r]easonableness is judged by
how the situation appeared to the defendant, not the victim” (People v. Minifie (1996) 13
Cal.4th 1055, 1068), but that does not mean the victim’s conduct is irrelevant to how the
situation appeared to the defendant. Indeed, this same authority explains that “[t]he
victim’s behavior is also highly relevant.” (Ibid.) Defendant and the victim were not
always visible in the security footage. To the extent they were visible, the amount of
force the victim used was unclear. The statements were relevant because they had a
tendency in reason to show the nature of the confrontation. The prosecution used the
evidence to argue the victim did not cause the defendant to be in fear of death or
imminent bodily injury on a reasonable basis because the victim intended to and did only
engage in a non-deadly fight without weapons. We disagree with defendant’s assertion
that the evidence had minimal relevance.
“ ‘ “Prejudice for purposes of Evidence Code section 352 means evidence that
tends to evoke an emotional bias against the defendant with very little effect on issues,
not evidence that is probative of a defendant’s guilt.” ’ [Citation.] Our courts have
acknowledged that ‘[a] limiting instruction can ameliorate section 352 prejudice by
eliminating the danger the jury could consider the evidence for an improper purpose.’ ”
(People v. Gonzalez (2021) 12 Cal.5th 367, 409.) Defendant notes nonhearsay statements
regarding the defendant’s conduct admitted to prove circumstantially the victim’s state of
mind or conduct present “an elevated danger of prejudice if the jury is unable to
distinguish between the truth of the matters asserted and the inferences concerning the
declarant’s state of mind.” (People v. Riccardi, supra, 54 Cal.4th at p. 823.) He argues
the jury could not have effectively distinguished between the truth of the matters asserted
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and the inferences concerning the victim’s state of mind because his state of mind “would
not make any sense unless appellant had engaged in the conduct described.” But here the
court gave a limiting instruction to mitigate the danger of prejudice (id. at p. 824) and we
presume the jury followed this instruction (People v. Merriman (2014) 60 Cal.4th 1, 71).
We conclude the trial court did not abuse its discretion in determining there was
“minimal prejudicial effect to the defense” with respect to the statements regarding
defendant’s behavior toward the victim. As the court explained, these statements were
evidence of the victim’s “anxiety concerning the defendant” and indicated defendant
engaged in “relatively minor, annoying rudeness” as opposed to any “pushing, shoving,
or fighting.” Defendant argues the statement that the victim’s son had died two months
earlier “carried a highly prejudicial potential.” We disagree. This is not evidence that
would tend to evoke an emotional bias against defendant. There was no suggestion
defendant had anything to do with the victim’s son’s death. We cannot infer that merely
because the victim had suffered an earlier, unrelated tragedy, the jury would be more
likely to convict defendant of the charged crime. Indeed, this evidence could support the
suggestion that the victim initiated the fight after overreacting to comments by defendant
that were not actually intended to provoke a fight. The trial court did not abuse its
discretion in admitting the victim’s statements.
C. Evidence of Defendant’s Use of Force in Taking His Girlfriend’s Vehicle
Defendant argues the trial court should have excluded under Evidence Code
section 352 evidence that he used force on his girlfriend in taking her SUV five and a half
hours before the shooting. We disagree.
1. Trial Court Proceedings
Prior to trial, defendant moved in limine to exclude this evidence under Evidence
Code sections 1101, subdivision (a), and 352. Defendant argued there was a risk the jury
would use the evidence as impermissible character evidence. Defense counsel renewed
the objection at trial.
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The trial court ruled the evidence was relevant and admissible to show defendant
possessed the vehicle, how he came into possession of the vehicle, and to attack his
girlfriend’s credibility. The court concluded the prejudicial effect did not substantially
outweigh the probative value.
Defendant’s girlfriend testified that she let him take her SUV at about 5:30 p.m. on
December 22. They had a verbal disagreement, he told her to get out of the vehicle, and
she got out with her daughter. She testified she reported the SUV stolen the next day
because defendant did not bring it back. She had told the police defendant had taken the
SUV at 8:30 p.m. Additionally, she testified she lied when she told the police that
defendant put his hands on her. She said that, because she was mad at defendant, she told
the police he grabbed her hair and pushed her down. Defendant’s girlfriend further
testified the police offered her a protective order, and she accepted it.
During the girlfriend’s testimony, the court gave the following admonishment to
the jury:
“I want to admonish you as to certain statements that were made by the
witness, . . . [a]nd I’m going to admonish you that they cannot be used to show bad
character by the defendant. In other words, that it’s more likely than not that he
committed the murder because of the—any alleged acts of violence. It is admissible
primarily as to—to show credibility of the witness.” As we previously stated, the jury
was also instructed that “[d]uring the trial, certain evidence was admitted for a limited
purpose. You may consider that evidence only for that purpose and for no other.”
2. Evidence Code Sections 1101 and 352
Defendant argues the probative value of the evidence was at most minimal, and its
prejudicial potential was great.
Evidence Code section 1101, subdivision (a) provides, unless an exception
applies, “evidence of a person’s character or a trait of his or her character (whether in the
form of an opinion, evidence of reputation, or evidence of specific instances of his or her
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conduct) is inadmissible when offered to prove his or her conduct on a specified
occasion.” Additionally, Evidence Code section 1101, subdivision (c) provides:
“Nothing in this section affects the admissibility of evidence offered to support or attack
the credibility of a witness.”
The People argue the evidence was also relevant to defendant’s state of mind
when he shot the victim. This argument invokes subdivision (b) of Evidence Code
section 1101, which clarifies that subdivision (a) “ ‘does not prohibit admission of
evidence of uncharged misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition,’ such as identity, common plan, or intent.
[Citation.] Evidence of uncharged crimes is admissible to prove identity, common plan,
and intent ‘only if the charged and uncharged crimes are sufficiently similar to support a
rational inference’ on these issues.” (People v. Edwards (2013) 57 Cal.4th 658, 711
(Edwards).) “The least degree of similarity is required to prove intent or mental state.”
(People v. Thomas (2011) 52 Cal.4th 336, 355.) “Mental state and intent are rarely
susceptible of direct proof and must therefore be proven circumstantially. [Citations.]
Consequently, a defendant’s actions leading up to the crime may be relevant to prove his
or her mental state and intentions at the time of the crime.” (Ibid.) “ ‘ “ ‘We have long
recognized “that if a person acts similarly in similar situations, he probably harbors the
same intent in each instance” [citations], and that such prior conduct may be relevant
circumstantial evidence of the actor’s most recent intent. The inference to be drawn is
not that the actor is disposed to commit such acts; instead, the inference to be drawn is
that, in light of the first event, the actor, at the time of the second event, must have had
the intent attributed to him by the prosecution.’ ” ’ ” (Ibid.) The trial court, however, did
not admit the evidence to show intent or mental state. It gave a limiting instruction to the
jury indicating it could not use the evidence to show defendant’s character but to evaluate
his girlfriend’s credibility.
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“We review the trial court’s determination for abuse of discretion[] and view the
evidence in the light most favorable to the trial court’s ruling.” (Edwards, supra, 57
Cal.4th at p. 711.) The evidence was relevant for a nonpropensity purpose and therefore
was not prohibited under Evidence Code section 1101, subdivision (a). As the People
note, the defendant’s actions in obtaining his girlfriend’s SUV were not remote or
unrelated to the underlying facts of the crime. The evidence at trial showed defendant
left the murder scene in the SUV and his girlfriend had to retrieve it near the Mexican
border. The SUV contained circumstantial evidence of defendant’s guilt. His girlfriend
testified that her own border crossings while defendant was missing were to take her
grandmother to the airport. She denied these trips were to visit defendant. During
closing argument, the prosecution used the discrepancies in the girlfriend’s testimony,
such as how long she waited to report her SUV stolen, to argue that she had aided
defendant’s flight from what was a premeditated murder. The evidence that defendant’s
girlfriend had either lied to the police or later lied to protect defendant about the
circumstances in which he took the vehicle had a tendency in reason to speak to her
credibility, which was an issue for the jury. With respect to the potential for prejudice
under Evidence Code section 352, the court explained it did not find the evidence very
prejudicial in part because the girlfriend was not injured and “[i]t’s one act where he
pushes her down.” Further, the evidence did not take long to present, and was not remote
in time from the homicide. The court also gave a limiting instruction to dispel any
potential prejudice. We conclude the trial court did not abuse its discretion in admitting
evidence that defendant’s girlfriend initially told police he used force on her in taking her
car a few hours before he killed the victim.
D. Section 12022.53 Firearm Enhancement
At sentencing, which occurred in November 2021, the court declined to strike the
section 12022.53, subdivision (d) firearm enhancement. On appeal, defendant argues the
case must be remanded because the trial court was unaware of its discretion to strike this
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enhancement and impose a different, uncharged enhancement within the same section (§
12022.53, subds. (b) or (c)) under Tirado, supra, 12 Cal.5th 688.
Although defendant did not ask the trial court to impose a lesser firearm
enhancement, we disagree with the People’s assertion that the claim is forfeited. At the
time of sentencing, it was unclear whether the trial court could have imposed a lesser
enhancement. Two months after defendant’s sentencing, our Supreme Court resolved a
split of authority regarding this issue and concluded trial courts have this authority.
(Tirado, supra, 12 Cal.5th at pp. 692, 696.) Under these circumstances, even assuming
the issue was forfeited, we exercise our discretion to address the merits. (People v. Smith
(2003) 31 Cal.4th 1207, 1215; GreenLake Capital, LLC v. Bingo Investments, LLC
(2010) 185 Cal.App.4th 731, 739, fn. 6.)
“ ‘ “Defendants are entitled to sentencing decisions made in the exercise of the
‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of
the scope of its discretionary powers can no more exercise that ‘informed discretion’ than
one whose sentence is or may have been based on misinformation regarding a material
aspect of a defendant’s record.” [Citation.] In such circumstances, . . . the appropriate
remedy is to remand for resentencing unless the record “clearly indicate[s]” that the trial
court would have reached the same conclusion “even if it had been aware that it had such
discretion.” ’ ” (People v. Flores (2020) 9 Cal.5th 371, 431-432.)
The People assert the trial court made such a clear indication when it made the
following comments: “The next issue is the 12022.53 enhancement. The court has
authority to strike that. However, here, there are several factors. Number one, he was on
probation at that time for a felony assault by means of force likely to cause great bodily
injury. Also, the victim was particularly vulnerable. The victim was unarmed. [Defense
counsel] brings up the fact that the victim did start the incident. And the victim threw the
first blow. There’s not much arguing about that. However, it was non-deadly force. It
was with a fist. And the firearm—if it weren’t for a firearm, the victim would be alive
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today. But I don’t know if that’s unduly tautological or not, but this wouldn’t have
happened without a gun. And the victim had no weapon of any sort. So I am going to
deny the motion to strike the 12022.53 allegation.” This statement merely explained the
court’s reasoning for not striking the enhancement in its entirety. It does not “clearly
indicate” the trial court would have imposed the same section 12022.53, subdivision (d)
enhancement even if the court had been aware it could impose a lesser one. (People v.
McDaniels (2018) 22 Cal.App.5th 420, 425, 427.) Thus, we conclude it is appropriate to
remand this matter to allow the trial court to exercise its sentencing discretion in light of
Tirado, supra, 12 Cal.5th 688. We express no opinion regarding how the court should
exercise that discretion on remand.
III. DISPOSITION
Defendant’s sentence is vacated, and the matter is remanded for resentencing and
the trial court’s exercise of its discretion in accordance with this opinion.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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