People v. Pimentel CA4/3 ( 2023 )

Filed 10/17/23 P. v. Pimentel CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062759
v. (Super. Ct. No. 16CR005361)
MARCO ANTONIO PIMENTEL, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Bernardino County,
Kawika Smith, Judge. Affirmed.
Robert L.S. Angres for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Randall D.
Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Appellant Marco Pimentel was convicted of second degree murder for
shooting his wife, Deanna Medina. His identity as the shooter was not disputed. What
was disputed was whether he had the requisite intent for first or second degree murder:
malice aforethought.
Appellant asserted he could not remember anything about the shooting and
did not intend to kill his wife. His expert testified that as a result of appellant’s traumatic
childhood and his substance abuse, he was in a dissociative state at the time of the
shooting and was, for intent purposes, unconscious. The expert also testified that, owing
to his heavy substance abuse both as an adolescent and as an adult, appellant’s amnesia
claim was credible and he was not faking it.
Appellant has identified two errors on appeal. First, he asserts the trial
court gave prejudicially confusing and contradictory jury instructions regarding his expert
witness. Second, he contends the court should have instructed the jury on the lesser
included offense of involuntary manslaughter in the course of an assaultive felony. In his
mind, the combined effect of these two errors prejudiced his constitutional rights to a fair
trial, his third ground for reversal.
We affirm the judgment. The jury instructions were not contradictory. The
jury was told it had to make its own evaluation of the truth of the percipient witnesses’
testimony; it could not assume the expert’s reliance on a witness’ statement meant it was
true. This is neither confusing nor contradictory. As to an instruction on involuntary
manslaughter in the course of an assaultive felony, the jury determined appellant shot his
wife with implied malice after having been instructed on involuntary manslaughter
caused by intoxication. Having done so, the jury could not have found appellant guilty of
involuntary manslaughter of any kind. The error, if error it was, was harmless.
2
FACTS
Appellant testified that his usual routine at the beginning of each day was to
wash down some prescription pills (for which he had no prescription) with a pint of
vodka before getting out of bed. Then, depending on how he was feeling at the time, he
would shoot some heroin. If he did not shoot heroin at that time, he would do so later in
the day. Appellant also testified that Medina herself routinely used methamphetamines.
Both also drank alcohol. When appellant and Medina were under the influence, they
would physically and verbally abuse each other.
Appellant shot Medina through the driver’s side window as she sat in their
car outside the house of a family friend, Crystal Castaneda. The bullet went through her
left arm and entered her chest, piercing her lungs and her heart. She died within minutes.
Appellant’s role in causing Medina’s death is not disputed.
On the day of the shooting, March 16, 2016, appellant testified he followed
his usual morning routine with vodka and pills. He could not remember whether or when
he shot heroin. He and Medina then set off to do some errands in their recently
purchased Chevrolet Malibu. Initially he was driving, but Medina ordered him to turn off
the road into a gas station because he was swerving. While at the gas station, Medina
took the driver’s seat, and appellant went into the station to purchase some 40-ounce
beers.
That afternoon, appellant and Medina dropped in at the house of a friend,
Jennifer Arcero, where appellant drank more vodka and had a margarita. He also drank
“lean,” which is cough syrup with codeine. From Arcero’s house, Medina drove
appellant to a court-mandated class, ironically a DUI class. When Medina and Arcero
picked him up after class, he was holding another bottle of vodka. At this point, Arcero
testified, appellant was “very, very drunk.”
Later that evening, appellant appeared alone at the house of another friend,
Crystal Castaneda. Castaneda has a son with appellant’s cousin, Daniel Lopez, but the
3
two of them do not live together. Appellant asked Castaneda whether she had some
marijuana and displayed a revolver to her. Castaneda testified appellant was “really
1
intoxicated, and goofy as he always was.” “[H]e was never like sober ever.” “You can
tell by his demeanor, and how bloodshot red his eyes were that he was really gone.” She
could smell alcohol on him, and she believed he was also under the influence of meth and
heroin. He was “upbeat, happy, smiling.” When she walked him out of the house, she
saw the Malibu parked in front of her garage, although she did not see Medina, who had
remained in the car during the visit. Appellant then left the house.
Castaneda testified that she heard a gunshot shortly after appellant left. A
few minutes later, appellant returned and informed Castaneda that he had “shot that bitch
in the face.” Castaneda understood him to mean Medina. He also said he had shot at the
car and Medina had driven herself to the emergency room. Castaneda testified that
appellant “looked shocked.” Castaneda could not see the Malibu when she looked out of
her front door or from her driveway, and at first she did not believe appellant. Appellant
left again, and Castaneda returned to her house.
Castaneda then called Daniel Lopez and told him what appellant had said
about shooting Medina. Her impression was that Daniel did not believe her, and she was
likewise skeptical.
Appellant returned to Castaneda’s house for the third time. At this point
the car with Medina’s body in it had been discovered and reported, and there was
considerable police activity down the street from Castaneda’s house. Castaneda told
appellant Medina was dead in the car, but he acted as though he did not believe her. The
police presence eventually convinced Castaneda that appellant had shot Medina.
1
Appellant testified that either he or Medina – sometimes both – carried guns whenever they left
home. The guns belonged to his grandmother.
4
2
Appellant gave Castaneda the bullets from his gun, at her request and again left.
Castaneda believed he was still intoxicated, although he appeared “calm.”
Appellant returned to Castaneda’s house for a fourth time at around
midnight or one in the morning, while the police were still processing the crime scene.
He asked to stay the night, and she refused. She told him Medina was dead, and he
responded he hadn’t done it. He was carrying grocery bags that appeared to Castaneda to
be full of trash and asked for cigarettes. He asked to put the trash bags inside the house
but Castaneda told him to put them on the outside barbeque. She pushed some coins for
cigarettes under the screen door. At that point, Castaneda did not want him to enter her
house where her son was sleeping. She described appellant’s condition during the night
of March 16 as “like out of his mind. Like, he didn’t know what was what. Like, he just
seemed like he was lost.”
Appellant asked Castaneda to call his grandmother Jeannie Pimentel.
Appellant’s grandmother picked him up and drove him to the residence of his cousin,
Daniel Lopez, the father of Castaneda’s son.
By this time, Daniel had taken a telephone call from Castaneda, and he
knew Medina was dead and the police were looking for appellant as the shooter. He
testified that appellant was drunk and stank badly of alcohol; Daniel convinced him to
take a shower. While appellant was in the shower, Daniel put his clothing in a trash bag
and threw the bag into the rafters of the garage.3 He and appellant then took some pills
provided by appellant’s grandmother, lay down on the living room floor, and went to
sleep. Police officers found them the next morning and arrested them both.
2
At some point, Castaneda returned the bullets to appellant, but the record is unclear regarding
when this happened.
3
When police interviewed Daniel Lopez on the morning of March 17, the day after the shooting
when both he and appellant were arrested, Daniel told the interviewing officer that appellant had put the clothing in
the bag and thrown the bag onto the rafters. At trial, Daniel recanted this statement and insisted that he had done
this without appellant’s knowledge.
5
At trial, which got underway in September 2021, Castaneda testified twice
about the night Medina was shot. Anna Lopez, appellant’s mother, testified about the
domestic violence and substance abuse appellant witnessed while growing up. Sabrina
Gomez, appellant’s sister, testified about the domestic violence she and appellant
witnessed, their parents’ substance abuse, and the violence inflicted on him while he was
a child. Appellant himself testified about his substance abuse, starting at age 11 or 12
4
with alcohol and meth and graduating to daily use of heroin at the age of 14. His father,
a heroin addict, had introduced him to heroin, and they would shoot up together. He also
explained that he had moved out of his mother’s house at age 10 and lived with his
grandmother Jeannie Pimentel who, he said, furnished him with alcohol and drugs. He
said his grandmother and her husband also had a violent relationship.
Appellant claimed to have no memory of the relevant events of March 16,
2016. The last thing he remembered, he testified, was drinking “lean” in the afternoon at
Arcero’s house. The time after that was a blank until he found himself in the holding cell
at Adelanto Detention Center, on the morning after the shooting. He did not even recall
being interviewed by police after his arrest.
At trial, appellant’s expert opined that the constant trauma of appellant’s
upbringing caused him to dissociate in times of stress or rage. He would be capable of
action, even violent action, while unaware of his surroundings. His assertion he had no
memory of shooting Medina was credible, and the expert believed he was not faking loss
of memory. The expert testified that he formed his opinion based on statements made by
Castanada about appellant’s behavior during the night of the shooting, on the history of
domestic violence and child abuse provided by appellant’s mother, Anna Lopez, and his
4
As teenagers, appellant and Castaneda “used to hang out every day.” Appellant was, according to
Castaneda “always drinking and smoking, and whatever else he’d do. When we used to hang out, that’s all we did.”
‘[We] used to do meth, smoke weed, and drink . . . [¶] [a]ll the time.”
6
sister Sabrina Gomez, and on appellant’s own statements during the expert’s interviews
with him.
Toward the end of trial, counsel and the trial court discussed jury
5
instructions. One of the instructions discussed was CALCRIM No. 360. After reading
the text of the instruction, the judge stated, “That appears to me to be appropriate. Do
either of you have a thought?” The prosecutor responded, “Agreeable.” Defense counsel
stated, “I think it’s appropriate.” The court and counsel then discussed the names that
would be inserted in the space for the statements considered. Several names were
suggested, and the court settled on seven names.
The jury found appellant guilty of second degree murder, as well as of three
handgun enhancements. It acquitted him of first degree murder. He was sentenced to an
indeterminate prison term for the murder with no parole eligibility for 15 years and to an
indeterminate term for a gun enhancement with no parole eligibility for 25 years.
DISCUSSION
I. Jury Instructions
Appellant’s expert’s opinion had two aspects. First, the expert opined that,
due to a childhood disfigured by domestic violence and child abuse, appellant was in a
dissociative state when he shot Medina. Dissociation is, in the expert’s opinion, a mental
defense mechanism that can be developed in childhood as a result of repeated trauma.6 It
is a way for the victim to flee the scene of the trauma mentally, even while bodily
present. An adult, even though no longer subject to abuse, may enter a dissociative state
if something “triggers” memories of the childhood abuse and the coping mechanism used
at the time. In this state, a person’s ability to form organized and rational thoughts and
5
CALCRIM No. 360 states, “<Insert name> testified that in reaching (his/her) conclusions as an
expert witness, (he/she) considered [a] statement[s] made by <insert name>. [I am referring only to the statement[s]
<insert or describe statements admitted for this limited purpose>.] You may consider (that/those) statement[s] only
to evaluate the expert’s opinion. Do not consider (that/those) statement[s] as proof that the information contained in
the statement[s] is true.”
6
“[D]issociation is typically connected with that repetitive exposure to nonlethal violence.”
7
his or her awareness of behavior are impaired. Heavy use of alcohol and drugs would
likewise impair consciousness.
The expert opined that appellant was in just such a dissociated state when
he shot Medina. He was in a state of “impaired consciousness” and acting irrationally.
The expert also opined that something Medina had said or done after appellant left
Castaneda’s house for the first time triggered him so that he became dissociated and shot
7
her.
The second aspect of the expert’s opinion rested on appellant’s use of drugs
and alcohol, beginning in his childhood. Such abuse would also result in impaired
consciousness. Furthermore, abuse of this kind could lead to blackouts, which appellant
claimed he had frequently experienced. The expert opined that appellant’s claim he
could not remember the shooting was genuine, as demonstrated by his repeated inquiries
about Medina’s whereabouts after the incident and his repeated denials that he was
responsible for her death.
While conceding that appellant had shot Medina, defense counsel argued
extensively to the jury that appellant could not have formed the necessary intent for either
first or second degree murder. Counsel based this argument in part on appellant’s
extreme intoxication on the night of the shooting and in part of the expert’s testimony
about appellant’s traumatic childhood. Counsel argued for a verdict of manslaughter
instead.
Aappellant now argues the court gave the jury confusing and contradictory
instructions regarding how to evaluate the testimony of his expert. The court first
instructed the jury, pursuant to CALCRIM No. 332, that “[a] witness was allowed to
testify as an expert to give an opinion. You must consider the opinion, but . . . you are
not required [to] accept it as true or correct. The experience [sic] and importance of any
7
The expert referred to “reflexive outpouring of rage.”
8
8
opinion are for you to decide.[ ] In . . . evaluating the believability of an expert witness,
follow the instructions about the believability of witnesses generally. In addition,
consider the expert’s knowledge, skill, experience, training and education, the reasons the
experts [sic] gave for any opinion, and facts or information on which the expert relied on
in reaching that opinion. [¶] You must decide whether information on which . . . the
expert relied was true and accurate. You may disregard any opinion that you find
9
unbelievable, unreasonable, or unsupported by the evidence.” Shortly thereafter,
pursuant to CALCRIM No. 360, the court instructed the jury that “[the expert] testified
that in reaching his conclusions as an expert witness, he considered statements made by
[appellant], Jeannie Pimentel, Anna Lopez, Joseph Lopez, Crystal Castaneda, Anna
Marie Romo, and Sabrina Gomez.[10] You may consider those statements only to evaluate
the expert’s opinion. Do not consider those statements as proof that the information
contained in the statements is true.”
“‘The appellate court may . . . review any instruction given, . . . even
though no objection was made thereto in the lower court, if the substantial rights of the
defendant were affected thereby.’ [Citations.] Instructional errors resulting in a
miscarriage of justice violate the substantial rights of a defendant. [Citation.]” (People v.
Hudson (2009) 175 Cal.App.4th 1025, 1028.) If the trial court’s instructions in this case
8
The written instruction that went into the jury room tracked CALCRIM No. 332 in stating that
“[t]he meaning and importance of any opinion are for you to decide.” (Italics added.)
9
CALCRIM No. 332 states, in pertinent part, “(A witness was/Witnesses were) allowed to testify as
[an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept
(it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the
believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition,
consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any
opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether
information on which the expert relied was true and accurate. [¶] You may disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence.”
Counsel and the court did not discuss CALCRIM No. 332 during the discussion of instructions in
which CALCRIM No. 360 was approved. The court later included CALCRIM No. 332 in a list of instructions it
intended to give. Neither counsel objected.
10
Two of the names put forward during the discussion of jury instructions were not included in the
final instruction. Joseph Lopez appeared in the final instruction, but this name did not figure in the discussion of
jury instructions.
9
confused the jury as to how to consider the expert’s opinion – the core of the defense –
then a miscarriage of justice would result.
In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), on which appellant’s
analysis rests, the California Supreme Court addressed CALCRIM No. 332 and
CALCRIM No. 360 in light of testimony from the prosecution’s gang expert. (Id. at p.
671.) The detective testified he based his conclusion the defendant was a gang member
on STEP notices, on his contacts with police while in the company of identified gang
11
members, and on the fact the crime took place on gang turf. (Id. at p. 673.) The
defendant argue the expert’s testimony regarding his past contacts with police was
testimonial hearsay and its admission violated his constitutional right to confront and
cross-examine witnesses. (Id. at p. 674.)
The court held that case-specific facts upon which an expert relies are
hearsay, that is, out-of-court statements offered for their truth. If other competent proof
of these case-specific facts has not been offered, then the jurors have no way of
evaluating the facts for their truth, despite a jury instruction (CALCRIM No. 332)
admonishing them to evaluate the information the expert relied on for its truth.
“The court also confusingly instructed the jury that the gang expert’s
testimony concerning ‘the statements by the defendant, police reports, F.I. cards, STEP
notices, and speaking to other officers or gang members’ should not be considered ‘proof
that the information contained in those statements was true.’ [CALCRIM No. 360.]
Jurors cannot logically follow these conflicting instructions. They cannot decide whether
the information relied on by the expert ‘was true and accurate’ [CALCRIM No. 332]
without considering whether the specific evidence identified by the instruction, and upon
which the expert based his opinion, was also true. ‘To admit basis testimony for the
11
Police officers issue STEP notices in accordance with the California Street Terrorism Enforcement
and Prevention Act, Penal Code sections 186.20 et seq. They also prepare field identification cards (F.I. cards)
recording an officer’s contact with an individual. (Sanchez, supra, 63 Cal.4th at p. 672.)
10
nonhearsay purpose of jury evaluation of the experts is . . . to ignore the reality that jury
evaluation of the expert requires a direct assessment of the truth of the expert’s basis.’
[Citations.] [¶] Once we recognize that the jury must consider expert basis testimony for
its truth in order to evaluate the expert’s opinion, hearsay and confrontation problems
cannot be avoided by giving a limiting instruction that such testimony should not be
considered for its truth. If an expert testifies to case-specific out-of-court statements to
explain the bases for his opinion, those statements are necessarily considered by the jury
for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be
properly admitted through an applicable hearsay exception. [Fn. omitted.] Alternatively,
the evidence can be admitted through an appropriate witness and the expert may assume
its truth in a properly worded hypothetical question in the traditional manner.” (Sanchez,
supra, 63 Cal.4th at p. 684.)
But there is a crucial difference between Sanchez and this case. In Sanchez,
the gang expert relied for his opinion on case-specific out-of-court statements taken from
the STEP notices and the F.I. cards, the authors of which did not testify. In this case,
however, four of the seven people identified in CALCRIM No. 360 – appellant, his
mother, his sister Sabrina Gomez, and Castaneda – did testify, and the case-specific facts
to which they testified formed the bases of the expert’s opinion. Three of these witnesses
were appellant’s own witnesses, thus obviating any concern about his right to cross-
examination. The remaining witness, Castaneda, testified twice, once for the prosecution
(subject to cross-examination) and once for appellant. The other three people listed in the
11
jury instruction did not testify, and, contrary to the instruction given, the expert did not
12
testify that he based any of his opinions on statements made by them.
Counsel and the trial court were very aware of Sanchez during trial, and the
13
witness line-up was wisely structured accordingly. Witnesses upon whose statements
the expert relied testified before he did and gave in-court testimony about the case-
specific factual basis of his opinion that appellant was severely intoxicated and in a
dissociative state when he shot Medina. Appellant himself testified in court about his
substance abuse and his claim that he could not remember the events before, during, and
after the shooting, so the jury had a first-hand opportunity to evaluate the truth of his
memory loss.
CALCRIM No. 332 and CALCRIM No. 360 are not contradictory in this
context. CALCRIM No. 332 instructs the jurors that they had to decide whether to
believe the witnesses whose testimony, given in court, underlay the expert’s opinion.
They had to decide whether this information was “true and accurate.” CALCRIM No.
360 instructed the jurors that the fact that certain witnesses made statements to the expert
was not proof that the statements were true. In other words, the jurors had to decide
independently (per CALCRIM No. 332) whether to believe appellant, his mother, his
12
At the end of a long trial, some confusion is probably to be expected. The expert testified to
statements made by appellant about Jeannie Pimentel, appellant’s grandmother, but he did not testify about any
statements made to him by her concerning the sources of appellant’s dissociation or substance abuse. Jeannie
Pimentel did not testify. Joseph Lopez is Daniel Lopez’s father and appellant’s uncle. Apparently the court and
counsel confused the two: Daniel testified; Joseph did not. The expert did not testify about any statements of case-
specific facts made to him by Joseph. Finally, Anna Marie Romo’s full name was not mentioned in court at all
during testimony. An alert juror might have picked out the name Anna Marie from the list of the children of Anna
Lopez, appellant’s mother. But there was no testimony from the expert about statements made to him by Romo.
The expert testified that before trial he interviewed appellant, his mother, his sister Sabrina, his
grandmother, and his father. He did not testify about any case-specific facts related to him by appellant’s father.
13
For example, at the motion in limine stage, defense counsel stated, “My understanding is that the
People’s motion would be on Sanchez. Would be to make sure that proper foundations are laid for case-specific
hearsay, meaning if this is going to be evidence about, that [appellant] had a bad childhood and he suffers from
PTSD, with disassociation, and that is rooted in childhood experiences, that [the expert] can’t testify about for
example, his conversations with [appellant’s] family. [¶] We’d need to hear from [appellant’s] family first to avoid
Sanchez issues. That’s my understanding of the Sanchez objection. I have no intention of putting [the expert] on
before I put on the witnesses he spoke to that would lay the foundation. So that would take care of the Sanchez
problem with respect to [the expert].”
12
sister, and Castaneda before they could evaluate an expert’s opinion based on their
statements. They could not simply assume that the expert’s reliance on these witnesses’
statements vouched for their truthfulness.
Appellant’s somewhat convoluted argument is that the court confused the
jury by instructing, on the one hand, that it “could not rely on the truth of the out-of-court
statements made by appellant and various witnesses to assess the reliability of [the
expert’s] opinions” and also by instructing, on the other hand, that it “also could not rely
on the in-court testimony of those persons to assess the reliability of [the expert’s]
opinion.” Appellant continues, “[T]he jury did not understand that it could rely on the in-
court testimony of the various witnesses named in [CALCRIM No. 360] in order for the
jury to evaluate the factual basis for [the expert’s] opinion.” Appellant attributes
“bewilderment” to the jury, as it was purportedly told “not to consider the information
upon which [the expert] relied,” and yet the expert also could not have relied on the in-
court testimony of the percipient witnesses because he was not in court to hear it.
Therefore, appellant argues, the jury could not correctly evaluate the expert’s testimony
about his intent or lack of it on the night of the shooting.
The record does not support this argument. The trial court did not instruct
the jury that it could not rely on the in-court testimony of the percipient witnesses to
evaluate the expert’s opinion. It also did not instruct the jury that it could not rely on the
truth of the out-of-court statements made by appellant and various witnesses. What the
court said was that the expert’s reliance on the out-of-court statements was not proof of
their truth. As CALCRIM No. 332 instructed, the jury had to make an independent
assessment of the truth and accuracy of the information on which the expert relied. If the
jury found this testimony to be “true and accurate,” then the expert could rely on these
facts to form his opinion, the meaning and importance of which the jury also had to
assess.
13
In this case, the “information on which the expert relied” was presented to
the jury by means of the percipient witnesses’ testimony. The jury was also instructed on
witness credibility (CALCRIM No. 105) and told how to evaluate it. The court correctly
instructed the jury as to how to decide whether the information on which the expert relied
was true and accurate.
Appellant’s confusion-of-the-jury argument assumes that the expert must
glean his or her case-specific facts from hearing the percipient witnesses’ testimony while
sitting in the courtroom during trial. Sanchez sets out no such rule. Sanchez focuses on
what the jury hears. The jurors must hear case-specific facts from competent witnesses,
whose credibility they can personally evaluate. Then the jury decides whether to credit
the expert’s opinion based, in part, on whether the case-specific information on which it
rests is “true and accurate.” Sanchez puts no conditions on when or how the expert
acquires this information so long as the jury has that opportunity to personally evaluate
the credibility of the people who provided it.
The record undermines the confusion-of-the-jury argument in another way.
During deliberations, the jurors asked nine questions. Among these questions were
requests to read back appellant’s testimony, Castaneda’s testimony, and Arcero’s
testimony. Since appellant’s identity as the shooter was not in question, the only reason
to zero in on the testimony of these witnesses was to determine whether to believe the
expert’s opinion that appellant was in a dissociative state or unconscious on the day he
shot Medina. The jury well understood that it could rely on in-court testimony from these
witnesses to make this decision.
It is telling, we think, that appellant has not pointed us to a single instance
of the expert’s reliance on a purely out-of-court statement as the basis for his opinion, a
reliance that would run afoul of Sanchez. Our survey of the record indicates that the
expert stuck closely to the facts given during the prior testimony of the four witnesses
when he explained how he arrived at his opinion. We do not think – and appellant does
14
not argue – that the mistaken inclusion of three names in the jury instruction of people
who did not testify and upon whom the expert did not rely sufficiently confused the jury
to prejudice appellant.
Because the trial court did not give erroneous, inconsistent, or confusing
instructions to the jury regarding the expert’s opinion, we need not address appellant’s
arguments about ineffective assistance of counsel, prejudice, or his constitutional rights
in this regard.
II. Involuntary Manslaughter
Pimentel now argues that the trial court should have instructed the jury on
involuntary manslaughter during an inherently dangerous assaultive felony. The felony
involved, according to appellant, was a violation of Penal Code section 246, which
prohibits “maliciously and willfully” discharging a firearm into an occupied motor
vehicle.14 A violation of this section is a general intent crime. (People v. Jischke (1996)
51 Cal.App.4th 552, 556 [“[T]he question is whether the defendant intended to do the
proscribed act.”].) Appellant was not charged with a violation of section 246, and there
was no mention or discussion of this code section during trial.
“‘[A] defendant has a constitutional right to have the jury determine every
material issue presented by the evidence [and] . . . an erroneous failure to instruct on a
lesser included offense constitutes a denial of that right . . . .’ [Citation.] However, a trial
judge need not instruct the jury as to all lesser included offenses, just those that find
substantial support in the evidence. [Citation.] “‘“Substantial evidence” in this context is
“‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]
14
The Penal Code defines “willfully” as implying “a purpose or willingness to commit the act, or
make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any
advantage.” “Maliciously” is defined as “a wish to vex, annoy, or injure another person or an intent to do a
wrongful act, established either by proof or presumption of law.” (Pen. Code, § 7, subds. 1, 4.)
One can imagine defense counsel’s reaction to a suggestion that the court instruct on a lesser
included manslaughter offense that included willfulness and malice as elements after he had labored so strenuously
to convince the jury appellant had been unconscious when he shot his wife.
15
‘“‘that the lesser offense, but not the greater, was committed.’ [Citation.]” (People v.
Haley (2004) 34 Cal.4th 283, 312, italics added.)
Appellant argues that the assaultive felony manslaughter instruction was
necessary because if the jury did not believe him to be unconscious when he shot Medina,
it then had no alternative but to find him guilty of murder in either the first or the second
degree. An instruction on this alternative theory of manslaughter would have allowed it
to find that he did not have the requisite intent even if he was conscious at the time of the
shooting.
It is not true that the sole choice presented to the jury was either murder in
one degree or the other or involuntary manslaughter while intoxicated. The trial court
also instructed the jury on voluntary manslaughter, and defense counsel argued to the jury
that appellant was provoked. “Something went down” or “something happened” between
appellant and Medina after he left Castaneda’s house the first time to set him off.15
Unlike the instruction appellant argues for now, this theory did no violence to the
dissociation theme at the heart of the defense.
The trial court instructed the jury regarding voluntary intoxication and the
lesser included offense of involuntary manslaughter committed while voluntarily
intoxicated.16 The jury was instructed that among the elements of involuntary
15
Appellant’s expert testified that, in his opinion, “something traumatic” between appellant and
Medina at the time of the shooting “set off the dissociation.”
16
CALCRIM No. 626 provides, “Voluntary intoxication may cause a person to be unconscious of
his or her actions. A very intoxicated person may still be capable of physical movement but may not be aware of his
or her actions or the nature of those actions. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated
by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating
effect, or willingly assuming the risk of that effect. [¶] When a person voluntarily causes his or her own
intoxication to the point of unconsciousness, the person assumes the risk that while unconscious he or she will
commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was
unconscious due to voluntary intoxication, then the killing is involuntary manslaughter. [¶] Involuntary
manslaughter has been proved if you find beyond a reasonable doubt that: [¶] 1. The defendant killed without legal
justification or excuse; [¶] 2. The defendant did not act with the intent to kill; [¶ 3. The defendant did not act with
a conscious disregard for human life; AND [¶] 4. As a result of voluntary intoxication, the defendant was not
conscious of (his/her) actions or the nature of those actions. [¶] The People have the burden of proving beyond a
reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the
defendant not guilty of (murder/ [or] voluntary manslaughter).”
16
manslaughter were the lack of an intent to kill and not acting with a conscious disregard
for human life.
17
The court also instructed the jury on second degree murder. One of the
elements of second degree murder is a conscious disregard for human life. By
convicting appellant of second degree murder after having been instructed on involuntary
manslaughter, the jury must necessarily have decided he deliberately acted with
conscious disregard for human life.
The verdict thus shows that any error in the involuntary manslaughter
instructions was harmless because even if there was evidence that appellant consciously
intended to shoot into the car merely to vex, annoy, or injure Medina, the jury was
convinced beyond a reasonable doubt that the elements of the greater offense were
proven. (See People v. Lee (1999) 20 Cal.4th 47, 60-66 [lack of any instructions on the
misdemeanor manslaughter theory of involuntary manslaughter was harmless error
because the jury determined the defendant acted with malice]; cf. People v. Coddington
(2000) 23 Cal.4th 529, 593, overruled on other grounds in Price v. Superior Court (2001)
25 Cal.4th 1046, 1069, fn. 13 [trial court’s error in failing to instruct on second degree
implied malice murder deemed harmless where the jury found the defendant’s killings
were premeditated]; People v. Haley, supra¸ 34 Cal.4th at p. 314 [jury’s guilty verdict on
burglary and robbery rejected voluntary intoxication negation of specific intent]; People
v. Lewis (2001) 25 Cal.4th 610, 646 [“Error in failing to instruct the jury on a lesser
17
“I will also instruct you on the different types of murder. The defendant is charged with murder in
violation of Penal Code Section 187. To prove the defendant is guilty of this crime, the People must prove that, one,
the defendant committed an act that caused the death of another person, and, two, when the defendant acted, he had
a state of mind called malice aforethought. There’s two kinds of malice aforethought, express malice and implied
malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant had express
malice if he unlawfully intended to kill. The defendant had implied malice if, one, he intentionally committed the
act. Two, the natural and probable consequence of the act were dangerous to human life. Three, at the time he
acted, he knew his act was dangerous to human life. And, four, he deliberately acted with conscious disregard for
human life. . . . [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the killing was a
first-degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant
not guilty of first-degree murder, and the murder is second-degree murder.”
17
included offense is harmless when the jury necessarily decides the factual questions
posed by the omitted instruction adversely to defendant under other properly given
instructions.”].)
An element of this kind of manslaughter – as of the intoxication kind on
which the jury was instructed – is that the defendant did not act with a conscious
disregard for human life. (See People v. Odell (2023) 92 Cal.App.5th 307, 321 [“The
difference between other homicide offenses and involuntary manslaughter depends on
whether [the defendant] was aware of the risk to life that his actions created and
consciously disregarded that risk.”].) The jury in this case determined that appellant was
guilty of second degree murder; it must therefore have determined, pursuant to the jury
instruction on murder – which appellant does not challenge – that he knew shooting
Medina was dangerous and that he had deliberately acted with conscious disregard for
human life. Having done so, the jury could not have found him guilty of involuntary
manslaughter of any description. (People v. Bryant (2013) 56 Cal.4th 959, 970 [“A
defendant who has killed without malice in the commission of an inherently dangerous
assaultive felony must have killed without either an intent to kill or a conscious disregard
for life.”]; Pen. Code, § 192, subd. (b).)18
We find nothing in the court’s instructions to merit reversal.
18
From the jury instructions: “I can accept a verdict of guilty or not guilty of voluntary or
involuntary manslaughter only if all of you have found the defendant not guilty of both first- and second-degree
murder.”
18
DISPOSITION
The judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
19