People v. Esquivel CA3

Filed 12/23/22 P. v. Esquivel 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sutter)
----
THE PEOPLE, C094455
Plaintiff and Respondent, (Super. Ct. No. CRF19-3080)
v.
VICTOR HUGO VIVANCO ESQUIVEL,
Defendant and Appellant.
After a fight involving defendant and the victim (E.G.) earlier that evening,
defendant chased and shot E.G. as the two ran through a restaurant. Defendant claimed
he was acting in self-defense and that he perceived E.G. posed an increased danger to
him and his family in part because he believed E.G. was affiliated with a gang.
Defendant presented evidence E.G. pointed a gun at him during the earlier fight
and threatened to kill him moments before defendant shot E.G. He also presented
evidence he heard a noise he thought was a gunshot seconds before he shot E.G. The
trial court prohibited defendant from presenting his belief that E.G. was affiliated with a
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gang and the additional evidence that formed a basis for that belief. A jury convicted
defendant of premeditated attempted murder and assault with a semiautomatic firearm.
On appeal, defendant argues the trial court’s evidentiary ruling was prejudicial
error, as it “went to the very heart of the defense and hamstrung [his] ability to show that
he acted in, at least, imperfect self-defense.” We agree that the trial court abused its
discretion in excluding this supporting evidence for defendant’s claim of imperfect self-
defense. Because we see a reasonable probability of an outcome more favorable to
defendant absent this error, we reverse the judgment.
I. BACKGROUND
A. Trial Court’s Evidentiary Rulings
1. Pretrial Ruling
While hearing the prosecution’s pre-trial motion in limine that defendant be
prohibited from referring to gangs, gang membership, or gang signs, the trial court and
defense counsel had the following colloquy.
Trial court: “Is it your argument, [defense counsel], that the defendant believed he
was in imminent danger because he believed he saw some motions that were gang-
related? That would make him believe the alleged victim was dangerous because he was
a gang member, is that—
“[Defense counsel]: In part, yes.
“Trial court: What else?
“[Defense counsel]: In terms of just—
“Trial court: The gang references?
“[Defense counsel]: The statements that [E.G.] made, the gestures, the way he
was dressed.
“Trial court: Right. But what is the relevance of those?
“[Defense counsel]: That’s to explain the fear that he had, his belief at the time.
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“Trial court: Now, in order for him to have had that belief, he would have to have
some knowledge of gangs.
“[Defense counsel]: . . . [h]e has seen people that are gang members flashing signs
and he just gets away. [¶] One time he was at the Sutter County Fair and gang members
doing those signs . . . beat several individuals up. . . . He saw that with his own eyes and
that caused him fear and he left.
“Trial court: This . . . issue is – it’s highly prejudicial if there’s gang reference and
it goes to the jury. [¶] What I want right now, I don’t want any gang reference in any
opening statement.”
Later, the trial court amplified: “And no reference to throwing signs, even if you
don’t use the word gang. . . . So that is something that we’re going to have to have a[n
Evidence Code section] 402 hearing about later.”1
2. Ruling After Section 402 Hearing
In a hearing that occurred out of the jury’s presence and after the People’s case-in-
chief, defendant testified he believed E.G. was a gang member because: (1) “He raised
his arms up in the air and moved his fingers”2; (2) “The way he was dressed” (E.G. “was
wearing baggy pants, his pants were low, he was wearing a sweatshirt and he was
wearing a hat . . . [that] said ‘Cali’ on it”); and (3) “the things that he was saying”—“for
me to get out of his barrrio” and “they were going to kill me.”
Defendant explained that, previous to his interaction with E.G., he was at a county
fair where “some people . . . were moving their arms around and as three people were
passing by, they also responded with signs. A fight ensued and then more people from
1 Undesignated statutory references are to the Evidence Code.
2Defense counsel explained, “what [defendant] did, that he raised – he’s doing it right
now. He raised his arms and then he’s moving his fingers on both hands.”
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one side got involved.”3 Defendant heard people at the fair talking later about the
fighters being gang members.
Those gang members who fought at the county fair “were moving their fingers” in
a “similar” way to the way E.G. moved his fingers on November 8, 2019. “They weren’t
doing the same exact thing[,] but it was similar.”
Defendant had no other knowledge about gang members.
The trial court ruled: “I just want to make the record clear, everything I’ve heard
is mere speculation on the defendant’s part. [¶] He also indicated—even if we’re
looking at—I believe even if it was unreasonable, and it would be of slight relevance
given that he indicated the movements were similar, not the same, but similar in moving
the fingers. I didn’t hear anything about how he knew that gang members dressed this
way. He’s not in a gang. It’s purely speculative. And it’s highly prejudicial. Very low
relevance.
“We have the phrase, Get out of my barrio, Get out of this barrio, and they are
going to kill him. Those are relevant. Those can come in.
“The additional belief that’s because they were gang members is speculative and
of low relevance and highly prejudicial.”
Defense counsel responded: “I just want to put on the record, I would think this is
all relevant and pertinent to [defendant’s] state of mind and to his beliefs under
[CALCRIM No.] 3470, the right to self-defense and defense of others.”
Later, after the prosecutor stated his position on the matter, the trial court
explained to defense counsel how not to question defendant regarding E.G.’s hand
movements: “So questions as to show us what he was doing and you don’t refer to them
as signs or throwing signs or anything to that effect, is fine.”
3Defense counsel explained, defendant “w[as] raising [his] hands again up in the air and
moving [his] fingers.”
4
The trial court reiterated the basis of its evidentiary ruling to defense counsel: “I
don’t disagree with you, it has a slight relevance. It’s that it’s substantially outweighed
by the risk of prejudice because we have the words that were said and we have the
motions, so the additional relevance of his belief that because there was—there were also
hand gestures thrown . . . years prior to that were not the same but might have been
similar is of low probative value.”
B. Prosecution’s Case
1. Restaurant Employee
Around 7:00 p.m. on November 8, 2019, a Yuba City restaurant employee arrived
at work and saw a crying woman with a baby in a portable car seat. Later, defendant
arrived and parked his car in front of the restaurant’s front door.
While defendant and the woman with the baby had a heated argument inside the
restaurant, E.G. arrived to pick up a to-go order. Defendant was holding the woman’s
arm, pulling her outside. Standing about three feet away, E.G. said to defendant (in
Spanish), “ ‘Are you going to start with your shit here?’ ”
Defendant pulled out a gun and pointed it at E.G., who was not holding any
weapons and had not raised his hands into the air. E.G. ran away, and the employee
heard three gunshots. She did not hear any other gunshots before defendant tried to fire
his gun.
2. Restaurant Employee’s Husband
The restaurant employee’s husband arrived at the restaurant that evening shortly
after the employee. He walked by defendant, who was sitting in a car in front of the
restaurant. There were four other non-employees in the restaurant: a woman with her
baby, and a couple eating at a table.
The employee’s husband saw E.G. come into the restaurant and get in line.
Defendant opened the front door of the restaurant and, in Spanish, yelled and
cursed at the woman with the baby to get in his car. E.G. asked defendant, in Spanish, “if
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[he was] going to start . . . again.” E.G. used a curse word and was not being polite, but
he was not acting angrily or making any sort of taunting gestures towards defendant.
E.G. was not holding a knife or gun.
Defendant left. He returned six seconds later, swung open the restaurant door,
walked up to E.G., and pointed a gun at his head. Defendant pulled the trigger twice, and
the gun went “click, click” but did not fire, giving E.G. a chance to run away. Defendant
chased E.G., still pointing the gun at him, and the restaurant employee’s husband heard a
bang. That was the first bang he heard.
The employee’s husband eventually ran towards the sound of the bang and saw
defendant pointing the gun at and “standing over [E.G.]” who was on the floor.
Defendant tried to fire the gun, but it did not fire; it just made the “click, click” sound
again.
3. The Couple Eating
A male customer and female customer got to the restaurant around 8:00 p.m. that
evening and were eating at a table. A woman with her baby was there, and she was
crying. E.G. came in and was standing near the employee’s husband.
The male customer “saw some hand gesturing.” E.G. was making a “motion” with
his hands “encouraging somebody to come in.” E.G. had no weapons in his hands, and
did not appear to be angry, but he did appear to be taunting or antagonizing someone
outside.
The male customer heard a noise—perhaps a gunshot (“[t]here is a shooting range
over there”), “a car door slamming,” or maybe “something else”—and screaming, and
then saw defendant come inside the restaurant holding a gun. Defendant pointed the gun
towards E.G. and the employee’s husband and appeared to try to shoot. The gun didn’t
fire, and E.G. ran away. Defendant gave chase, pulling and hitting the gun. The male
customer then heard the gun fire.
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The female customer recalled arriving at the restaurant for dinner and finding a
woman with a baby in a car seat carrier. Later, the employee’s husband and E.G. walked
in the restaurant.
Seconds later, the female customer heard yelling and screaming. She saw E.G.
saying something towards someone outside, putting his hands up and “[p]ulling his hands
towards his chest.” He was not holding any weapons.
Then she heard females screaming and “a big bang.” She “thought it was a
gunshot,” but it could have been the noise of a car door slamming. Then E.G. and
defendant (holding a gun) ran by her. Defendant shot at E.G. as they were both running.
The sound of defendant’s gun was louder but not necessarily “different” than the sound
she heard moments earlier.
C. Defendant’s Case
Defendant testified at trial. He told the jury that around 6:00 p.m. on November 8,
2019, he arrived home to his girlfriend and nine-month-old baby in Yuba City. He
worked a construction job in Santa Rosa that day, having slept in his car in Santa Rosa
the night before. Defendant kept a gun in his car for protection because he sometimes
stayed overnight at job sites.
Defendant drove his girlfriend to her friend’s home. After they arrived two men
suddenly came out of the house, and both of them started hitting defendant. Defendant’s
girlfriend ran away with their son; defendant did not see where they went.
E.G. was one of the two men who attacked defendant. E.G. pointed a gun at him
as the second man hit defendant with a “2 by 4” “pole” “used in fencing.”
Defendant retreated and called 9-1-1 with his cell phone. E.G. went back inside
the house but the second man remained outside, standing by defendant’s car. The 9-1-1
operator asked for defendant’s location, and told him to wait on the line while they tried
to connect him to somebody who spoke Spanish.
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Defendant ended the call after waiting on the line for a while without any
response. After waiting 10 minutes, defendant tried to get to his car to leave, but the
same two men started hitting and kicking defendant again. Defendant fell, and the men
continued hitting and kicking him.
Defendant eventually got away, and E.G. followed him. At one point, E.G. “was
wiggling his fingers” at defendant.4
Defendant made it back to his car and drove away, looking for his girlfriend and
their baby. Defendant’s girlfriend called him and told him she was at the restaurant and
their son needed diapers. Defendant drove to the restaurant, gave his girlfriend diapers,
and asked her to leave with him. She told him to wait for her to change the baby’s
diaper.
As defendant waited in his car by the entrance of the restaurant, he saw E.G.
approaching, “yelling,” “wanting to fight,” and “doing this with his hands.” He told
defendant “it was his barrio and that [defendant] should leave. If [defendant] didn’t,
[E.G.] was going to finish [him] off.” Defendant told E.G. to leave him alone, raised the
car window so there was only a two-inch opening, locked the door, and tried to avoid eye
contact with E.G.
E.G. walked inside the restaurant (where defendant’s girlfriend and son were) and
continued “behaving aggressively inside” putting his hands in the air, and “doing like
this,” defendant testified (apparently imitating E.G.’s hand movements). Defendant
turned away, because he “didn’t want to have any problems.” One or two seconds later,
he heard a gunshot come from inside the restaurant.
Defendant feared his family was in danger because they were inside. He looked at
E.G., who was staring back at him. Defendant grabbed the gun inside his car with one
4Defendant testified E.G. was “wiggling his fingers making like signs,” but the trial
court later struck the “signs” portion of that testimony.
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hand and grabbed the magazine to the gun with the other hand and ran inside the
restaurant.
E.G. ran and defendant chased him because he had heard a shot, and “wasn’t sure
if [E.G.] had a gun.” Defendant feared E.G. was holding a gun in his right hand, which
defendant could not see as E.G. ran away.
As defendant chased E.G., he tried to insert the magazine into the gun. While
doing so, the gun discharged accidentally. The bullet did not hit E.G., but E.G. started
turning to his left towards defendant, his right hand (which defendant could not see)
down by his side. “And that’s when [E.G.] tried to turn around and that’s when I fired,”
defendant testified. “I was afraid that he was going to shoot me, shoot my family, my
son’s mother.”
Defendant went back to the front of the restaurant to look for his girlfriend and
baby. Not finding them, he drove away in his car, afraid E.G.’s friends “would do
something” to him.
D. Prosecution’s Rebuttal Witness
E.G.’s companion, T.C., who fought with defendant outside the house before the
restaurant incident testified that he lived at the house with E.G. and several others.
Around 6:30 or 7:00 p.m. on November 8, 2019, T.C. heard a “real loud scream,” and
went to see what was going on. He saw his friend (defendant’s girlfriend) arguing with
defendant.
T.C. grabbed a “fence post” off the ground, defendant “came towards” him, and he
swung the fence post and hit defendant on the shoulder. E.G. came out of the house and
joined T.C. in the middle of the street. E.G. did not have a gun.
Defendant and E.G. spoke to each other in Spanish, a language T.C. did not speak.
Defendant “bolted” at E.G., who kicked defendant in the groin.
No one struck defendant again. He and E.G. walked toward defendant while he
“backed off” and made a call on a cell phone.
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E. Jury Instructions
Instructing the jury with CALCRIM No. 604, the trial court explained: “If you
conclude[ ] the defendant acted in complete self-defense or defense of another, his action
was lawful and you must find him not guilty of any crime.” By contrast, the trial court
explained, an attempted killing that would otherwise be attempted murder is reduced to
attempted voluntary manslaughter if the defendant attempted to kill a person because he
acted in imperfect self-defense of or defense of another. “The difference between
complete self-defense or defense of another and imperfect self-defense or defense of
another depends on whether the defendant’s belief in the need to use deadly force was
reasonable.”
The trial court further instructed the jury defendant acted in imperfect self-defense
or defense of another if: (1) defendant took at least one direct but ineffective step toward
killing a person; (2) defendant intended to kill when he acted; (3) defendant believed he
or someone else was in imminent danger of being killed or suffering great bodily injury;
and (4) defendant believed the immediate use of deadly force was necessary to defend
against the danger, and at least one of those beliefs was unreasonable.
“[D]efendant must have actually believed there was imminent danger of death or
great bodily injury to himself or someone else,” the trial court explained. “In evaluating
the defendant’s beliefs, consider all the circumstances as they were known and appeared
to the defendant. [¶] If you find that [E.G.] threatened or harmed the defendant in the
past, you may consider that information in evaluating the defendant’s beliefs.”
The trial court also explained to the jury it was the prosecution’s burden to prove
beyond a reasonable doubt defendant did not act in self-defense or imperfect self-defense.
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F. Closing Arguments
1. Prosecution Closing
“The facts of the case are straightforward when you boil it down to what happened
on November 8th, 2019,” the prosecutor told the jury. “There is no big issue of self-
defense. This was simply an attempted murder.”
E.G. came to the restaurant to “pick[ ] up a food order.” “He . . . observes the girl
with the baby, the defendant’s girlfriend, crying, being emotional. [¶] Defendant also
comes in and out of the restaurant. . . . He was trying to drag her out and it appeared she
did not like that. [¶] That’s when [E.G.] intervenes. He uses some words, something to
the effect of, You’re going to start some shit. . . . [¶] And apparently . . . defendant did
not like that. He did not appreciate those words because that’s when the defendant grabs
the gun. He arms himself, apparently because [E.G.] put his arms up and wiggled his
fingers, which would suggest that he was not holding a gun. He was not holding any
weapons.”
“[T]here’s no way for you to find that [defendant’s] belief” that he or someone
else was in imminent danger of suffering bodily injury “was honest or sincere,” the
prosecutor argued. “[E.G.] had no weapons. Even if . . . [E.G.] beat [defendant] up
earlier that night [,] . . . [t]hat was way before the incident in [the restaurant].” “The only
thing that [E.G.] did was insult the defendant . . . and then raising his arms up and
wiggling his fingers, not menacing, not requiring the imminent danger or need to use self-
defense.”
2. Defense Closing
Defense counsel told the jury the prosecutor “glossed over” a crucial fact in his
closing argument: the couple eating in the restaurant both heard a sound they thought
might have been a gunshot just before defendant entered the restaurant. Counsel argued
that—in the context of E.G. (1) assaulting and (2) pointing a gun at defendant earlier that
evening, and (3) threatening to kill defendant moments before—defendant reasonably
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thought he was facing an imminent danger of serious bodily harm to himself or his loved
ones when he heard what he too thought was a gunshot.
G. Verdicts and Sentence
In April 2021, the jury found defendant guilty of attempted murder (Pen. Code,
§§ 664, 187, subd. (a)—count 1) and assault with a semiautomatic firearm (Pen. Code,
§ 245, subd. (b)—count 2), and found true certain allegations, including that the
attempted murder was premeditated.
In July 2021, the trial court imposed an aggregate sentence of 32 years to life with
the possibility of parole.
Defendant appealed.
II. DISCUSSION
A. Section 352
Defendant argues the trial court erred by refusing to permit him to testify to his
belief E.G. was a gang member. “Whether [defendant] actually and reasonably believed
[E.G.] belonged to a gang was a question for the jury,” defendant contends. And—
because of the “common belief [] that gang members are more prone to violence than
non-gang members”—defendant argues his belief E.G. was a gang member “added
significantly to the reasonableness and authenticity of [his] belief” E.G. posed an
imminent threat of bodily injury or death. Accordingly, defendant maintains, the
excluded evidence was critical to his theories of perfect and imperfect self-defense.
The People counter the trial court properly ruled defendant’s “unsupported belief
. . . [E.G.] was a gang member was unduly prejudicial.” (Emphasis omitted.)
We conclude the trial court abused its discretion under section 352.5
5 Defendant contends the trial court violated his state and federal constitutional rights to
“present a complete defense.” In doing so, he discusses section 352 and its principles. In
their briefing, the People also discuss section 352 principles. Because (1) the parties’
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B. Background Legal Principles
“The basic rationale of the doctrine” of imperfect self-defense “is that a genuine
belief in the need to defend oneself, even if unreasonable, negates the ‘malice
aforethought’ which is required for a conviction of [attempted] murder.” (People v.
Hayes (2004) 120 Cal.App.4th 796, 801, italics added.)
Section 352 gives the trial court discretion to “exclude evidence if its probative
value is substantially outweighed by the probability that its admission will (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (§ 352.)
We review a trial court’s evidentiary rulings under the abuse of discretion standard
of review. (People v. Kovacich (2011) 201 Cal.App.4th 863, 884.) The exercise of
discretion influenced by erroneous understanding of applicable law is an abuse of
discretion. (See People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 755
[“because the trial court’s decision . . . rested on an error of law, it was an abuse of
discretion”].)
C. Analysis
Here, defendant’s theory at trial was he shot E.G. because he feared E.G. was
going to shoot him or his loved ones. Thus, the central question for the jury to resolve
was what defendant actually and reasonably believed. In support of his defense,
defendant presented evidence: (1) E.G. attacked and pointed a gun at him earlier that
evening; (2) E.G. threatened to “finish . . . off” defendant moments before the shooting;
and (3) defendant heard what he thought was a gunshot moments before he ran into the
briefs include discussion of section 352, and (2) we believe “it is . . . prudent to address a
statutory . . . ground to avoid reaching a constitutional ground” (California Chamber of
Commerce v. State Air Resources Bd. (2017) 10 Cal.App.5th 604, 631, fn. 19), we
resolve defendant’s claim through the lens of section 352. (See, e.g., People v. McKay
(2002) 27 Cal.4th 601, 608, fn. 3.)
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restaurant to defend himself and his loved ones. Testimony of the couple eating at the
restaurant corroborated defendant’s evidence on the last point, at least somewhat.
But the trial court prohibited defendant from presenting evidence he believed E.G.
was a gang member (and the basis for that belief) because the trial court determined, in
part, that belief was “mere speculation.”
The trial court’s decision rested on an error of law, apparently conflating the
speculative nature of defendant’s belief with its genuineness. In other words, defendant’s
belief E.G. was a gang member may have been “speculative,” but such a characterization
is immaterial to the question whether defendant’s belief was genuine. Because the trial
court’s decision rested on an error of law, it was an abuse of discretion. (People v.
Superior Court (Humberto S.), supra, 43 Cal.4th at p. 755.)
This legal error aside, the trial court also abused its discretion in weighing the
relative probative and prejudicial values of the excluded evidence.
Defendant’s evidence was not of “low probative value,” it was highly probative of
defendant’s purported motive for shooting E.G.: fear. The excluded evidence would
have provided context for the issue of the genuineness of defendant’s belief he needed to
defend himself, his girlfriend, and his child by shooting E.G. “ ‘ “[B]ecause a motive is
ordinarily the incentive for criminal behavior, its probative value generally exceeds its
prejudicial effect.” ’ ” (People v. McKinnon (2011) 52 Cal.4th 610, 655, italics added.)
Here, in the context of defendant’s case of (imperfect) self-defense of himself or others,
that general proposition applies with particular weight. (See People v. Cage (2015)
62 Cal.4th 256, 275 [“[t]he probative value of the evidence to explain defendant’s motive
to commit the charged crimes” “provided a fuller explanation for the [charged criminal
act]”]; ibid. [“[t]he ‘prejudice’ which section 352 seeks to avoid is that which
‘ “ ‘uniquely tends to evoke an emotional bias against [a party] . . . and which has very
little effect on the issues’ ” ’ ”].)
The People’s arguments to the contrary are not persuasive.
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The People argue the trial court’s prejudice analysis included “reasoning that if
there were evidence that [E.G.] was a gang member, there was a danger the jury would
speculate that [defendant] was also involved with a gang.” We reject this argument,
which is apparently premised on the unusual notion (antithetical to the idea of the
adversarial ascertainment of truth in the courtroom (see People v. Garcia (1993)
17 Cal.App.4th 1169, 1181)) the trial court may prevent a party from presenting evidence
out of a concern such evidence will prejudice the party.
The People also argue the trial court’s decision may have been animated by
concern with “undue prejudice to the [prosecution’s] case arising from evidence that
reflects negatively on the victim,” i.e., that E.G. may have been a gang member. For
support, the People cite People v. Wright (1985) 39 Cal.3d 576, 585. That case does not
help the People. There, our Supreme Court ruled the trial court abused its discretion by
excluding defendant’s proffered evidence, and explained: “Although we recognize that
the prosecution is accorded protection under . . . section 352, similar to that of the
defense, from the use of prejudicial evidence with little probative value, the purported
prejudice to the prosecution cannot be based on mere speculation and conjecture.
[Citation.] Moreover, ‘Evidence that is relevant to the prime theory of the defense cannot
be excluded in wholesale fashion merely because the trial would be simpler without it.’ ”
(Ibid.)
Here, the notion the jury would have been unduly prejudiced against the
prosecution if it heard evidence defendant simply believed E.G. was a gang member is
full of conjecture. On the other hand, defendant’s belief was clearly relevant to the
foundation of his defense.
Accordingly, the trial court’s exclusion of defendant’s proffered evidence was an
abuse of its discretion.
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D. Prejudice
We review the question of prejudice under the “reasonable probability” standard
of People v. Watson (1956) 46 Cal.2d 818, 836-837, asking if it is reasonably probable a
more favorable result would have occurred had the erroneously excluded evidence been
admitted. (People v. Marks (2003) 31 Cal.4th 197, 226-227; People v. Jandres (2014)
226 Cal.App.4th 340, 357.)
The People argue there was no prejudice, because the excluded testimony “would
have done little to corroborate . . . defendant’s story.” “Even if [defendant’s] testimony
had been believed,” the People maintain, “it failed to support the actuality, or any good-
faith belief, that he was in imminent danger of death or serious bodily injury.” We
disagree.
There is a reasonable probability a more favorable result would have occurred,
because as we explained above, the excluded evidence would have provided important
context for the issue of the genuineness of defendant’s belief he needed to shoot E.G. to
defend himself or others.6 (See People v. Cage, supra, 62 Cal.4th at p. 275.) Thus, it is
plausible—had defendant been able to testify he believed E.G. was a gang member when
he shot him, and tell the jury why he harbored this belief—such evidence might have led
at least one juror to have a reasonable doubt that defendant had the requisite mental state
for attempted murder. And “in the context of prejudice, a mistrial is a better outcome
than a conviction.” (People v. Hem (2019) 31 Cal.App.5th 218, 230; see also People v.
Overman (2005) 126 Cal.App.4th 1344, 1363 [reversing a conviction because it was
6 Defendant argues the trial court’s ruling forced him to describe what he interpreted as
gang signs by E.G. in a way that made them “seem cartoonish” (by describing “wiggling”
fingers), and the prosecution “took full advantage of” the situation in closing argument by
“disparag[ing] and mak[ing] light of” defendant’s “claim of fear.” In light of our
conclusions, we need not address this argument.
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reasonably probable the jury would have convicted defendant of the lesser included
offense].)
III. DISPOSITION
The judgment is reversed.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
HOCH, J.
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