People v. Gonzales CA5 ( 2023 )

Filed 12/19/23 P. v. Gonzales CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085373
Plaintiff and Respondent,
(Super. Ct. No. BF184265A)
v.
MICHAEL ALEX GONZALES, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant and defendant Michael Alex Gonzales (defendant) was found guilty by
jury of second degree murder, two counts of unlawful possession of a firearm, unlawful
possession of ammunition and misdemeanor resisting arrest.
Defendant argues first, the trial court improperly instructed the jury on CALCRIM
No. 3475, that the instruction was irrelevant and prejudicial. Second, that substantial
evidence does not support the conviction on count 3, felon in possession of a firearm.
Finally, defendant argues he is entitled to one additional day of presentence custody
credit.
We affirm the conviction but remand the case to correct defendant’s presentence
custody credits to reflect one additional day of credit.
PROCEDURAL HISTORY
In an amended information filed September 16, 2022, the Kern County District
Attorney charged defendant with the first degree murder of Ruben Vega (Pen. Code,1
§ 187, subd. (a); count 1), with a discharge of a firearm causing great bodily injury or
death enhancement (§ 12022.53, subd. (d)); two counts of unlawful possession of a
firearm (§ 29800, subd. (a)(1); counts 2 and 3)2; unlawful possession of ammunition
(§ 30305, subd. (a)(1); count 4)3; and misdemeanor resisting arrest (§ 148, subd. (a)(1);
count 5).4
1 Unspecified statutory references are to the Penal Code.
2 Having previously been convicted of unlawful possession of a firearm (§ 29800,
subd. (a)(1)) and spousal injury (§ 273.5).
3 Having previously been convicted of unlawful possession of a firearm (§ 29800,
subd. (a)(1)) and spousal injury (§ 273.5).
4 Designated “[c]ount 6” in the information due to the information erroneously
listing a duplicate unlawful possession of ammunition charge as count 5.
2.
As to counts 1 through 4, the information further alleged four aggravating factors:
that defendant caused great bodily harm or the threat of great bodily harm, or other acts
that disclosed a high degree of cruelty, viciousness or callousness (Cal. Rules of Court,5
rule 4.421(a)(1)), that defendant was armed with or used a weapon at the time of the
crime (rule 4.421(a)(2)), that defendant had engaged in violent conduct which indicates a
serious danger to society (rule 4.421(b)(1)), and that defendant has prior convictions as
an adult that are numerous and increasing in seriousness (rule 4.421(b)(2)).
On September 30, 2022, the jury found defendant guilty of second degree murder
and found the firearm allegation true. The jury also found defendant guilty on all
remaining charges. In a bifurcated proceeding that same day, the prosecution dismissed
two aggravating factor allegations as to counts 3 and 4 – that the crimes involved great
bodily harm (rule 4.421(a)(1)) and that defendant used a weapon (rule 4.421(a)(2)). The
jury found all remaining aggravating factors true.
On December 1, 2022, the trial court sentenced defendant to 15 years to life for
the second degree murder conviction, plus 25 years to life for the firearm enhancement.
The court further sentenced defendant to three years on count 3, eight months on count 4,
and one year concurrent on count 5. The court stayed the sentence on count 2 pursuant to
section 654. Defendant was sentenced to an aggregate prison term of 43 years, eight
months, to life.
Defendant filed a timely notice of appeal on December 6, 2022.
STATEMENT OF FACTS
Testimony of Pompeyo “Popeye” DeLeon
On January 2, 2021, DeLeon and several other people were standing near a storage
unit behind an apartment complex in Bakersfield, California. DeLeon worked at that
apartment complex. DeLeon testified that defendant, known also as “Kreeper,” and Jesus
5 All further references to rules are to the California Rules of Court.
3.
Chavez, Jr., also known as “Jesse” approached DeLeon. Defendant lifted his shirt to
reveal a firearm with a clip. Defendant asked DeLeon, “You know who I am?” DeLeon
responded that he did. Defendant then said, “I’m . . . the one who shot Lokito on Haley
Street,”6 and accused DeLeon of stealing his Bluetooth speaker. DeLeon denied stealing
the speaker, and defendant said he was going to come back with the person who
inculpated DeLeon.
Defendant and Chavez then started walking toward the street, and DeLeon ran
toward an alley. As DeLeon left, he could see defendant and Ruben Vega, who he only
knew as “Temper,” arguing. As DeLeon entered the alley, he heard three gunshots.
DeLeon testified that he did not know Vega personally but had seen him around
the apartments. DeLeon had asked a man named Joe, who lived in the front of the
apartments, about Vega. Joe had told DeLeon that Vega was staying with him for a week
or a couple weeks. When DeLeon would see Vega, he would see him at Joe’s apartment.
Prior to the shooting, DeLeon testified that Vega had passed by when defendant was
talking to DeLeon. Once he saw DeLeon and defendant, Vega returned to the front of the
apartments.
DeLeon also gave a statement to Kern County Sheriff’s Sergeant M. Chambless
on January 6, 2021. In that statement, DeLeon said that he saw Temper come out of
Joe’s apartment the day of the shooting.
Testimony of Jesus “Jesse” Chavez, Jr.
On February 8, 2021, Chavez was taken into custody on an outstanding warrant in
an unrelated matter and spoke with Chambless about the shooting of Vega. Chavez told
Chambless that “this fool named Kreeper . . . he is the one that shot him . . . .”
6 DeLeon testified that Lokito was DeLeon’s brother-in-law and they were “kind
of related.”
4.
Chavez stated that defendant got a ride from defendant’s brother in a blue car with
a sunroof top. Defendant had gotten out of the car “all pissed” because he thought
“Popeye” had stolen his Bluetooth speaker. Defendant had a gun, but DeLeon denied
taking defendant’s speaker and walked away. That was when Vega showed up and
started arguing with defendant.
Chavez described Vega appearing “out of nowhere.” He said Vega did not come
out of Joe’s apartment because “we were just right there in the front, chilling” and Vega
“just showed up.” Chambless asked him if Vega came from the street or another
apartment, and Chavez responded, “We don’t know, everybody was just there we were
like, ‘what the hell?’ ”
Vega called defendant a “child molester,” then pushed defendant and tried to run.
Vega was trying to run around a truck, dodging defendant when defendant chased him
and shot him. Chavez identified defendant from a photographic lineup after speaking
with Chambless. At trial, Chavez identified defendant as the shooter, stating that
defendant shot Vega because Vega called defendant a child molester.
Defendant’s Apprehension
On February 8, 2021, a Kern County Sheriff’s deputy was working undercover
when he spotted defendant exit a blue Nissan Altima. Defendant then got back into the
car and he and another individual drove away. A marked patrol car attempted to stop the
vehicle, but it led officers on a short pursuit until it crashed into another vehicle.
Defendant was apprehended in a front yard west of the crash scene. Defendant
was found carrying a glasses case that contained nine-millimeter and .22-caliber
ammunition. Defendant alleged the case belonged to his brother, Andrew Gonzales, and
that his brother had been armed with a firearm during the pursuit.
During a subsequent interview, defendant initially denied knowing anything about
the shooting, or about arguing with Vega. He said that while his brother was prohibited
from owning firearms his brother had purchased two guns, and was “always trying to
5.
stack up . . . he’s always getting in trouble for guns.” However, defendant denied
knowing there was a gun in his brother’s car.
Ultimately, defendant admitted that he went with his brother and Chavez to
confront someone he believed stole his speaker. Defendant said the day before Vega had
threatened him with a gun, but defendant did not see a gun on Vega when defendant shot
him. Defendant said he did not know what happened to the gun he used to shoot Vega,
only that “[i]t just disappeared.”
Forensic Evidence
At the scene of Vega’s murder, officers found two spent ammunition casings, one
from a nine-millimeter FC Luger, and one spent casing of an unspecified caliber. At the
scene of the accident where defendant was apprehended, officers found a handgun and a
baseball cap outside the car. There was no testimony regarding the distance the gun was
from the car, although the prosecution described the distance as “five, ten feet” outside
the driver’s door. Officers also found a loaded gun magazine in the center console of the
car and a baggie of mixed, live ammunition comprised of nine-millimeter and .40-caliber
rounds.
Vega suffered one gunshot which traveled through his right arm and into his chest.
The bullet pierced both of Vega’s lungs and his aorta, which caused profuse, rapid blood
loss.
DISCUSSION
I. The Trial Court Properly Instructed on CALCRIM No. 3475, and Any Error
Was Harmless.
Defendant argues there was no evidentiary basis for the trial court to give the
CALCRIM No. 3475 instruction. Defendant argues the instruction was irrelevant and
was highly prejudicial because it negated defendant’s theory of imperfect self-defense.
We find that substantial evidence supports giving the instruction, and any error was
harmless.
6.
A. Background
CALCRIM No. 3475
During the jury instruction conference, the prosecution requested CALCRIM
No. 3475:
“[PROSECUTOR]: I also think the Court should consider the right
to eject a trespasser since [defendant] had no right to be there.
“THE COURT: [Defense counsel]?
“[DEFENSE COUNSEL]: I would object to that because the
evidence was that Mr. Vega did not live there, I mean, so what right would
he have to eject a trespasser? So I don’t think that applies.
“[PROSECUTOR]: A guest in a home has every right to be there.
A guest would be a friend of the individuals who live there.
“[Defendant] was scaring everybody and threatening people. Mr.
Vega comes around and is a friend of those people. He would have a right
to eject a trespasser.
“THE COURT: So you are referring to the alleged victim in this
case as a lawful occupant of that property?
“[PROSECUTOR]: Yes, your Honor.”
The trial court then gave the CALCRIM No. 3475 instruction, which read:
“The lawful occupant of a property may request that a trespasser
leave the property. If the trespasser does not leave within a reasonable
period of time and it would appear to a reasonable person that the trespasser
poses a threat to the property or the occupants, the lawful occupant may use
reasonable force to make the trespasser leave.
“ ‘Reasonable force’ means the amount of force that a reasonable
person, in the same situation, would believe is necessary to make the
trespasser leave.
“If the trespasser resists, the lawful occupant may increase the
amount of force he or she uses in proportion to the force used by the
trespasser and the threat the trespasser poses to the property.
7.
“When deciding whether the defendant used reasonable force,
consider all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation with
similar knowledge would have believed. If the defendant’s beliefs were
reasonable, the danger does not need to have actually existed.
“The People have the burden of proving beyond a reasonable doubt
that the defendant used more force than was reasonable. If the People have
not met this burden, you must find the defendant not guilty of murder and
manslaughter.”
During closing argument, the prosecution argued, in relevant part:
“But I want you to consider [defendant], with a questionable
criminal history, comes around, start[s] waving a gun around, starts
threatening people, starts threatening Mr. Vega’s friends at a place where
he doesn’t even live. This is their home. This is their apartment complex.
This is where they stay, where they hang out, and he’s coming over here
waving a gun around and threatening people. . . .
“And when you see the pictures of Ruben Vega, he does not look
like somebody you would bump in a hallway. Look at his ID. He’s six feet
tall. He’s 240, 250 pounds, something like that. He’s as big as I am. He’s
got tattoos on his face. And he doesn’t like [defendant] coming in and
throwing weight around that he doesn’t deserve to throw around, and he
confronts him, confronts him with the fact that he is not the person to be out
there threatening people. [¶] . . . [¶]
“Now, there’s a couple other jury instructions that I want to talk to
you briefly about before we move on.
“The first is the right to eject a trespasser.
“Now, the way it was phrased it kind of seemed like you’d be
analyzing it as though [defendant] was the one ejecting a trespasser, and
that’s really what the instruction was designed for, somebody’s kicking
somebody off their property, gets violent, and somebody gets hurt, and then
you go after the landowner. All right, well, we need to know that
landowner’s rights. That’s the way it was phrased.
“But I want you to look at the law that’s there. A lawful occupant of
property, somebody who gets to be there, gets to kick you out of their
property if you don’t get to be there.
8.
“So who was the lawful occupant? Ask Jesus Chavez. The police
did. Can Ruben go around there? Does he get to be there? Does he get to
hang out with you guys?
“Yeah, he comes around. He hangs around with us. He’s cool with
us. He’s cool with my family.
“Popeye, he gets to be there. All those people get to be there. But
when [defendant] shows up with a loaded gun to make threats and to scare
people, he doesn’t get to be there.
“Now, would it have been better if Ruben Vega had approached him
and said kind sir, if you would please vacate the premises, you are a
trespasser here, things might have gone better, but Ruben Vega was
ejecting a trespasser, somebody who didn’t belong.
“Why is that important? Because Ruben Vega gets to do what he
did. He gets to eject by pushing or by any level of reasonable force this
interloper, this person who doesn’t belong there, this trespasser. He gets to
push him out of there. And you don’t get to have a mitigation of your
deliberate murder because you trespassed and you threatened people. [¶]
. . . Ruben Vega gets to be there. He gets to push [defendant] away, get out
of here.”
In closing argument, defendant responded:
“Now, the prosecutor mentioned instruction [CALCRIM No.] 3475,
right to eject trespasser from real property.
“Well, you don’t eject a trespasser by calling them a child molester,
green-lighting them in front of 20 individuals, and pushing them. That’s
not how you just eject a trespasser.
“And this is happening on the street, a public thoroughfare. That’s
not his place. That’s not his abode.”
In rebuttal, the prosecution concluded:
“And at the same time [defendant is] claiming that Mr. Vega had no
right to eject [defendant] from the property, [defendant is] also arguing that
he was everybody’s buddy there. He was their homie. He was their friend.
Yeah, that gives him a right to eject a trespasser.
9.
“Somebody breaks into your home while you’re in making
cucumber sandwiches, you expect your buddy in the front room to tell them
to get out.
“Mr. Vega had every right to push him to the curb just like he did.
[Defendant] set up his own situation. He put himself there, his wrongful
conduct, and now the just and proper response.”
Self-Defense Instructions
The trial court instructed the jury on imperfect self-defense as follows:
“A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed a person because he acted in imperfect
self-defense.
“If you conclude that defendant acted in complete self-defense, his
action was lawful and you must find him not guilty of any crime.
“The difference between complete self-defense and imperfect self-
defense depends on whether the defendant’s beliefs in the need to use
deadly force was reasonable.
“The defendant acted in imperfect self-defense if:
“One, the defendant actually believed that he was in imminent
danger of being killed or suffering great bodily injury;
“And, two . . . . [¶] . . . the defendant actually believed that the
immediate use of deadly force was necessary to defendant against the
danger, but at least one of those beliefs was unreasonable.
“Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be.
“In evaluating the defendant’s beliefs, consider all of the
circumstances as they were known and appeared to the defendant.
“A danger is imminent if when the fatal wound occurred the danger
actually existed or the defendant believed it existed. The danger must seem
immediate and present so that it must be instantly dealt with. It may not be
merely prospective or in the near future.
“Imperfect self-defense does not apply when the defendant, through
his own wrongful conduct, has created circumstances that justify his
adversary’s use of force.
10.
“If you find that Ruben Vega threatened or harmed the defendant in
the past, you may consider that information in evaluating the defendant’s
beliefs.
“If you find that the defendant knew that Ruben Vega had threatened
or harmed others in the past, you may consider that information in
evaluating the defendant’s beliefs.
“ ‘Great bodily injury’ means significant or substantial physical
injury. It is an injury that is greater than minor and moderate harm.
“The People have the burden of proving beyond a reasonable doubt
that the defendant was not acting in imperfect self-defense. If the People
have not met this burden, you must find the defendant not guilty of murder.
“A person does not have the right to self-defense if he or she
provokes a fight or quarrel with the intent to create an excuse to use force.
“The right to use force in self-defense continues only as long as the
danger exists or reasonably appears to exist. When the attacker withdraws
or no longer appears capable of inflicting any injury, then the right to use
force ends.”7
Defendant’s theory of imperfect self-defense was based on Vega calling defendant
a child molester in front of a group of people and pushing him, which defendant argued
put him in immediate, life-threatening danger:
“ ‘You are a child molester,’ that’s what Ruben Vega, aka Temper,
calls [defendant] to his face, a child molester, the single worst thing you
could ever call another person, a child molester, a monster, reviled, hated,
not worthy of life, and Ruben Vega calls him that out loud, in front of 20
people right there. ‘You’re a child molester.’
“Fear, anger, outrage, incredulousness, oh, my God, what is
everyone thinking, sheer panic, sudden vulnerability. ‘You’re a child
molester.’ And with those very dangerous words, a big ol’ target gets
placed on [defendant’s] back, a blazing bull’s-eye placed squarely on his
back. It was a green light to kill him or attack him. He had just been green
lit.
7 The instructions are pursuant to CALCRIM Nos. 571, 3472, and 3474.
11.
“Temper didn’t need a gun. He didn’t need a knife. He didn’t need
his fists. He didn’t need any of those things. His words, his battle cry, was
the weapon. [¶] . . . [¶]
“And after saying those very dangerous words, ‘You’re a child
molester,’ Temper pushes [defendant]. He pushes [defendant]. Temper is
the first to apply physical force. Temper is the first to instigate with his
words and with his body, by uttering that accusation then applying physical
force.”
General Instructions
The jury was also instructed on CALCRIM No. 200, which in relevant part reads:
“Some of these instructions may not apply, depending on your
findings about the facts of the case. Do not assume just because I give a
particular instruction that I am suggesting anything about the facts. After
you have decided what the facts are, follow the instructions that do apply to
the facts as you find them.”
B. Legal Standard
We review de novo whether jury instructions state the law correctly. (People v.
Jackson (2010) 190 Cal.App.4th 918, 923.) “When instructions are claimed to be
conflicting or ambiguous, ‘we inquire whether the jury was “reasonably likely” to have
construed them in a manner that violates the defendant’s rights.’ [Citation.]” (People v.
Franco (2009) 180 Cal.App.4th 713, 720.) “We assume that the jurors are ‘ “ ‘intelligent
persons and capable of understanding and correlating all jury instructions . . . given.’ ” ’
[Citation.] If reasonably possible, we will interpret the instructions to support the
judgment rather than to defeat it. [Citation.] Instructional error affects a defendant’s
substantial rights if the error was prejudicial under the applicable standard for
determining harmless error. [Citations.]” (Ibid., italics omitted.)
“ ‘ “When an appellate court addresses a claim of jury misinstruction, it must
assess the instructions as a whole, viewing the challenged instruction in context with
other instructions, in order to determine if there was a reasonable likelihood the jury
12.
applied the challenged instruction in an impermissible manner.” ’ [Citation.]” (People v.
Gomez (2018) 6 Cal.5th 243, 313.)
“A party is entitled to a requested instruction if it is supported by substantial
evidence. [Citation.] Evidence is ‘[s]ubstantial’ for this purpose if it is ‘sufficient to
“deserve consideration by the jury,” that is, evidence that a reasonable jury could find
persuasive.’ [Citation.] At the same time, instructions not supported by substantial
evidence should not be given. [Citation.] ‘It is error to give an instruction which, while
correctly stating a principle of law, has no application to the facts of the case. [Citation.]’
[Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049–1050, italics omitted.)
“[T]he test is not whether any evidence is presented, no matter how weak. Instead, the
jury must be instructed when there is evidence that ‘deserve[s] consideration by the jury,
i.e., “evidence from which a jury composed of reasonable [people] could have
concluded” ’ that the specific facts supporting the instruction existed. [Citation.]”
(People v. Petznick (2003) 114 Cal.App.4th 663, 677, italics omitted.)
Generally, CALCRIM No. 3475 applies to cases in which the owner or occupant
of property is charged with using excessive force to remove a trespasser. (People v.
Johnson (2009) 180 Cal.App.4th 702, 709 (Johnson).) “The principles set forth in
CALCRIM No. 3475 might also apply when there is an issue of whether a trespasser had
any right to defend himself against the use of force by the owner/occupant of the
property. In general, if an owner/occupant lawfully uses force to defend himself against
aggression by a trespasser, then the trespasser has no right of self-defense against the
owner/occupant’s use of force.” (Id. at pp. 709–710, italics omitted.) This likewise
applies to a defendant’s claim of imperfect self-defense. (People v. Watie (2002) 100
Cal.App.4th 866, 878.)
13.
C. Analysis
i. Substantial evidence supports giving the CALCRIM No. 3475 instruction.
Defendant argues evidence failed to support the CALCRIM No. 3475 instruction,
because there was no evidence that Vega was a lawful occupant of the apartment
complex or that the confrontation between Vega and defendant happened on private
property. Defendant argues all evidence points to the shooting occurring in the public
street. We disagree.
Based on the evidence presented in this case, a reasonable jury could find
persuasive that Vega was a lawful occupant of Joe’s apartment. DeLeon testified that Joe
told him Vega was staying with Joe for a week or a couple weeks. Every time DeLeon
would see Vega, it was around Joe’s apartment. In a statement made to Chambless,
DeLeon said on the day of the shooting, DeLeon saw Vega come out of Joe’s apartment.
These facts tend to support a finding that Vega was an invited guest or lawful occupant of
the apartment, and therefore the apartment complex.
Defendant appears to argue that to be a lawful occupant, Vega must have actually
lived in Joe’s apartment. However, residency is legally distinct from lawful occupancy
and confers different rights. For example, “California law declares to be justifiable,
homicide committed in reasonable defense of habitation ( . . . § 197; People v. Gleghorn
(1987) 193 Cal.App.3d 196, 200), but it extends the presumption of ‘a reasonable fear of
imminent peril of death or great bodily injury’ only to residents ( . . . § 198.5).” (People
v. Silvey (1997) 58 Cal.App.4th 1320, 1326 (Silvey).)
In Silvey, the defendant, who shot his friend’s ex-boyfriend while in his friend’s
trailer, was found to be a lawful occupant of the trailer but not a resident. (Silvey, supra,
58 Cal.App.4th at p. 1327, fn. 3.) The defendant was a regular visitor – he had a key to
the trailer, would shower there once a day and occasionally slept over. (Id. at pp. 1323–
14.
1324.) The trial court instructed the jury on CALJIC No. 5.40,8 the right of an occupant
to eject a trespasser, but no one suggested the defendant was a resident. (Silvey, at
p. 1327, fn. 3.)
Similarly, in this case, substantial evidence supports the conclusion that Vega was
either a regular visitor or a short-term occupant of Joe’s apartment, and therefore a lawful
occupant. For CALCRIM No. 3475 to apply, Vega need not be a resident.
Next, while the facts appear to indicate that the shooting happened on the public
street, the facts also show Vega was not on the street when he pushed defendant.
Although Chavez did not see Vega come out of Joe’s apartment, Chavez told Chambless
that “we were just right there in the front, chilling.” Chavez’s statement can reasonably
be interpreted as Chavez was either at or near the front of Joe’s apartment, when Vega
confronted defendant. Chavez also told Chambless that after Vega pushed defendant, he
tried to run. This implies that the confrontation ended in a different location from where
it started.
The prosecution’s use of the instruction was also limited to Vega pushing
defendant. The prosecution argued, “And you don’t get to have a mitigation of your
deliberate murder because you trespassed and you threatened people. [¶] . . . Vega gets
to be there. He gets to push [defendant] away, get out of here.” A reasonable jury could
consider that Vega was attempting to eject defendant as a trespasser from the apartment
complex to the public street – property where Vega was a lawful occupant. Therefore,
evidence is sufficient to warrant giving the CALCRIM No. 3475 instruction.
ii. Any error was harmless.
In evaluating for prejudice, “[t]he ‘generally applicable California test for
harmless error’ is set forth in [People v. Watson (1956)] 46 Cal.2d 818.” (People v.
Hendrix (2022) 13 Cal.5th 933, 942.) “Under the Watson test, we deem an error
8 This instruction is the CALJIC corollary to CALCRIM No. 3475.
15.
harmless unless it is ‘reasonably probable’ the outcome would have been different in the
absence of the error. [Citation.]” (Ibid.) This includes “ ‘ “incorrect, ambiguous,
conflicting, or wrongly omitted instructions that do not amount to federal constitutional
error . . . .” ’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955.) Likewise, “giving an
irrelevant or inapplicable instruction is generally ‘ “only a technical error which does not
constitute ground for reversal.” ’ ” (People v. Cross (2008) 45 Cal.4th 58, 67.)
Primarily, the jury in this case was instructed that “[s]ome of these instructions
may not apply” and to “follow the instructions that do apply to the facts as you find
them.” If CALCRIM No. 3475 was irrelevant, for example if the jury found Vega was
not a lawful occupant or Vega did not confront defendant on private property, the jury
was directed to disregard the instruction. We presume that the jury followed the
instructions given. (People v. Sutic (1953) 41 Cal.2d 483, 494.)
Defendant argues if irrelevant, the instruction was not harmless because it denied
him his due process right to present a complete defense. Defendant argues it entirely
negated his imperfect self-defense claim.
The prosecution argued, and the jury was instructed that “[i]mperfect self-defense
does not apply when the defendant, through his own wrongful conduct, has created
circumstances that justify his adversary’s use of force.” However, the prosecution
posited that defendant cannot claim self-defense when Vega pushed him. Defendant, in
turn, did not make that argument.
Defendant’s imperfect self-defense claim rested on the claim that defendant
believed Vega calling him a child molester “green-lit” defendant for imminent violence.
In closing, defendant argued:
“ ‘You’re a child molester.’ And with those very dangerous words, a big
ol’ target gets placed on [defendant’s] back, a blazing bull’s-eye placed
squarely on his back. It was a green light to kill him or attack him. . . .
Temper didn’t need a gun. He didn’t need a knife. He didn’t need his fists.
16.
He didn’t need any of those things. His words, his battle cry, was the
weapon.”
Although defendant argued Vega pushed him first, he did not argue that the
physical contact put him in fear for his life – rather, Vega’s words did. In the context of
defendant’s argument, the jury would not have considered CALCRIM No. 3475 when
determining whether Vega’s words led to defendant harboring an unreasonable belief that
he was in imminent danger of being killed or suffering great bodily injury, and use of
deadly force was necessary to defend against the danger.
Defendant also argues the length of the jury’s deliberation is proof of the
prejudicial impact of the error. Defendant argues that while the case is not factually
complex, the jury deliberated for three days, requested legal definitions of
“ ‘premeditated/premeditation,’ ” “ ‘willful’ ” and “ ‘deliberate’ ” and requested a
readback of Chavez’s testimony before reaching a verdict.
The jury in this case was tasked with making a challenging decision between first
and second degree murder. The jury’s questions show the jury struggled with
premeditation and ultimately concluded that defendant committed second degree murder.
Defendant’s argument is mere conjecture. Nothing in the jury’s questions indicates the
jury struggled with CALCRIM No. 3475 or its effect on the degree of murder in this case.
Finally, the evidence of defendant’s guilt is overwhelming. The jury was
instructed “[t]he right to use force in self-defense continues only as long as the danger
exists or reasonably appears to exist. When the attacker withdraws or no longer appears
capable of inflicting any injury, then the right to use force ends.” The facts show Vega
ran almost immediately after calling defendant a child molester and pushing him, thereby
withdrawing. Vega’s injuries indicate he was not facing defendant when he was shot,
consistent with Chavez’s testimony that Vega was running away from defendant, trying
to “dodge” him. Defendant nonetheless chased Vega and shot him as Vega ran. In light
17.
of these facts, it is not reasonably likely that the outcome would have been more
favorable to defendant, had the jury not been instructed on CALCRIM No. 3475.
II. Substantial Evidence Supports Defendant’s Possession of a Firearm
Conviction
Defendant argues there is insufficient evidence to support the possession of a
firearm conviction in count 3. Defendant argues the gun was found on the street, no
evidence was presented about where the gun was before it landed on the street, and no
evidence was presented that defendant had access to or exercised any dominion or control
over the gun. We find substantial evidence supports the conviction.
A. Legal Standard
In reviewing a judgment for substantial evidence, this court “ ‘must determine
whether a reasonable trier of fact could have found the prosecution sustained its burden
of proving the defendant guilty beyond a reasonable doubt.’ ” (People v. Johnson (1980)
26 Cal.3d 557, 576.) We “examine the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978,
1053.) “To entitle a reviewing court to set aside a jury’s finding of guilt, the evidence of
identity must be so weak as to constitute practically no evidence at all.” (People v. Braun
(1939) 14 Cal.2d 1, 5.)
“Any person who has been convicted of a felony under the laws of the United
States, the State of California, or any other state . . . who owns, purchases, receives, or
has in possession or under custody or control any firearm is guilty of a felony.”
(§ 29800, subd. (a)(1).)
“A defendant possesses a weapon when it is under his dominion and control.
[Citation.] A defendant has actual possession when the weapon is in his immediate
possession or control. He has constructive possession when the weapon, while not in his
18.
actual possession, is nonetheless under his dominion and control, either directly or
through others. [Citations.]” (People v. Peña (1999) 74 Cal.App.4th 1078, 1083–1084.)
“ ‘Possession may be imputed when the contraband is found in a location which is
immediately and exclusively accessible to the accused and subject to his dominion and
control’ [citation] or which is subject to the joint dominion and control of the accused and
another. [Citations.]” (People v. Francis (1969) 71 Cal.2d 66, 71.)
B. Analysis
Sufficient evidence supports a finding that defendant had constructive possession
of the gun in his brother’s car.
In People v. Taylor (1984) 151 Cal.App.3d 432 (Taylor), the defendant obtained
the keys to his girlfriend’s father’s car without permission and took it. The car was
reported missing, and officers spotted it the following day, occupied by two males. (Id.
at p. 434.) As officers pursued the car, they saw a gun thrown from the passenger
window into bushes. (Ibid.) The car was ultimately involved in an accident, the
defendant fled the scene, and was later apprehended. (Id. at p. 435.)
The defendant was charged with, in relevant part, possession of a loaded firearm
in public.9 The appellate court affirmed the conviction, finding that although the
defendant was the driver and the gun was thrown from the passenger side, it was thrown
soon after the chase began and the defendant’s driving represented “an unequivocal
attempt to avoid capture.” (Taylor, supra, 151 Cal.App.3d at p. 436.) The appellate
court concluded there was sufficient evidence that the defendant had constructive
possession of the firearm. (Ibid.)
In People v. Miranda (2011) 192 Cal.App.4th 398 (Miranda), the defendant was
one of four occupants in a vehicle, which was suspected to have been involved in a
shooting. Officers pursued the vehicle and witnessed objects being tossed out of the back
9 Then, section 12031, subdivision (a).
19.
windows of the vehicle, including pieces of a broken shotgun and live ammunition. (Id.
at p. 404.) The vehicle ultimately crashed into a fence and the occupants fled. (Ibid.)
When the defendant was apprehended, he said he was in the front passenger seat, did not
know there were any firearms in the car, and did not know anything was being tossed out
of the car. (Id. at pp. 404–405.)
The appellate court affirmed the defendant’s possession of a firearm conviction.
(Miranda, supra, 192 Cal.App.4th at p. 410.) The court found there was no dispute that
the defendant was in the vehicle during the pursuit. (Ibid.) It could also be inferred that
the shotgun was also in the vehicle because pieces of it were thrown out of the back
windows. (Ibid.) The court concluded:
“[I]t stands to reason that the shotgun was in the [vehicle] before the attack
at the gas station and the jury reasonably could have inferred [the]
defendant and the others were aware of its presence. This, after all, was a
shotgun not a handgun. The jury also was free to disbelieve [the]
defendant’s testimony that he was unaware of the shotgun. Sufficient
circumstantial evidence exists from which the jury could infer that [the]
defendant had at least joint dominion and control over the shotgun before it
was tossed out of the car window.” (Id. at pp. 410–411.)
In this case, a gun was found five to 10 feet outside the driver’s door of
defendant’s brother’s car. Defendant knew his brother had purchased two guns and was
“always getting in trouble for guns.” When defendant was apprehended, he said that his
brother was armed with a firearm during the pursuit, although he later denied knowing
there was a gun in the car. Defendant had live ammunition in a glasses case on his
person, and a search of the car revealed a loaded magazine and a baggie of ammunition in
the center console of the car. These facts present circumstantial evidence that defendant
had at least joint dominion and control over the gun while he was in his brother’s car.
20.
Defendant argues People v. Sifuentes (2011) 195 Cal.App.4th 141010 (Sifuentes)
supports his position that he did not constructively possess the gun in the car. In
Sifuentes, the defendant was found in a motel room shared with two women and a man.
(Id. at p. 1414.) The defendant was laying on the bed nearest the door, and the man was
kneeling next to the farther bed. Officers found a loaded handgun under the mattress in
the farther bed. (Ibid.)
The prosecution presented evidence that the defendant was a member of the same
gang as the other man in the room, and that gang guns were “ ‘accessible’ ” to gang
members “ ‘at most times.’ ” (Sifuentes, supra, 195 Cal.App.4th at pp. 1415, 1417.) The
prosecution was not able to elicit any evidence on whether the defendant had actual
access to the firearm, and there did not appear to be any evidence presented about
whether the defendant even knew the firearm was in the room. (Id. at p. 1418.) The
appellate court found that the evidence fell short of providing substantial evidence that
the defendant had the right to control the firearm in this case. (Id. at p. 1419.)
However, Sifuentes is distinguishable on its facts. The case involved a shared
motel room, where the defendant was found in a different part of the room from the gun.
The gun was hidden under the far bed’s mattress, not easily accessible. And the
prosecution did not elicit evidence about whether the defendant knew the gun was in the
room. (Sifuentes, supra, 195 Cal.App.4th at p. 1417.)
Circumstantial evidence in this case supports a finding that defendant was in the
car with the gun, and knew the gun was there both because he knew his brother bought
and possessed guns, and because he told officers his brother was armed during the
pursuit. Just as in Taylor and Miranda, the evidence is sufficient to support a jury finding
that defendant was in constructive possession of the gun while in his brother’s car.
10 Disapproved on other grounds in People v. Farwell (2018) 5 Cal.5th 295, 304,
footnote 6.
21.
III. Defendant Is Entitled to One Additional Day of Credit
Defendant argues he is entitled to one additional day of custody credit. The
Attorney General agrees.
“ ‘Calculation of custody credit begins on the day of arrest and continues through
the day of sentencing.’ [Citation.]” (People v. Valdes (2020) 53 Cal.App.5th 953, 955.)
Defendant was arrested on February 8, 2021, and sentenced on December 1, 2022, for a
total of 662 days counting the day of sentencing. Defendant received 661 days of actual
credit, one day short. This case will therefore be remanded to correct this error.
DISPOSITION
The case is remanded with instructions to correct the finding of actual time served
for presentence custody to 662 days, and to amend the abstract of judgment reflecting the
correction and to forward a copy to the appropriate authorities. The judgment is
otherwise affirmed.
DETJEN, Acting P. J.
WE CONCUR:
FRANSON, J.
SMITH, J.
22.